/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/191003.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 3, 2019, Vol. 21, No. 198 Headlines 2U INC: Glancy Prongay Reminds Investors of Oct. 7 Deadline 379 HORSEBLOCK: Rodriguez Seeks Minimum & Overtime Wages 811 CRISTOBAL: Loewe Seeks Unpaid Minimum, Overtime Wages ACCESS BUSINESS: Arellano Sues Over Unpaid Overtime, Missed Breaks AIR METHODS: Settlement in Day Wage & Hour Suit Has Prelim Approval AMAZING LASH: Covell Hits Illegal Telemarketing SMS Ads APPLE INC: Court Denies Summary Judgment Bid in Grace Suit APPLE INC: Phones Emit Excessive Radiation, Cohen Suit Alleges ASSET RECOVERY: Court OKs $12K Settlement in Sandri AT&T INC: Says Customers Can't Sue Over Sale of Location Data BANKERS LIFE: Settlement in David Suit Has Final Court Approval BEAUMONT HEALTH: Blanch Suit Seeks to Recover OT Pay Under FLSA BERGER SUNSHINE: Lazo Suit to Recover Unpaid Overtime Wages BITESQUAD.COM LLC: Court Grants Arbitration Bid in Holley BLUE DIAMOND: Varelli Says Vanilla-Flavored Drinks Mislabeled BOEHRINGER INGELHEIM: Hagens Berman Files Class Action Lawsuit BRAND ENERGY: Parties File Joint Status Report in McClure Suit BROOKFIELD ASSET: Rosson Sues Over Breach of Fiduciary Duties BUCKS COUNTY, PA: Jail Officials Question Inmate Lookup Tool BUNDOX RESTAURANT: Pech Sues Over Unpaid Minimum & Overtime Wages C & L INSPECTION: Zwiefel Sues Over Unpaid Overtime Wages CABLEVISION SYSTEMS: Settlement in Consumer Suit Has Final Approval CALIFORNIA CRYOBANK: Vidiksis et al Sue over Donor Sperm Storage CANADA: Submissions Continue in Class-Action Against Military CARBONITE INC: Kirby McInerney Files Class Action Lawsuit CAVALIA (USA) INC: Fails to Properly Pay Workers, Eaton Suit Says CHARTER COMMUNICATIONS: Nakai Seeks Redress From TCPA Violation CHECKERS DRIVE-IN: To Pay $3 Million to Settle Spam Texting Suit CHICAGO BRIDGE: Gotham Securities Suit's Section 18 Claim Dismissed COMPASS GROUP: Bryant Wants to Stop Illegal Use of Biometric Data CONTINENTAL RESTAURANTS: Harris Sues Over Unpaid Compensation COPART, INC: Cohen Sues over Fraudulent Vehicle Ads DALLAS COUNTY, TX: Dismissal of Denmark Prisoners Suit Recommended DALLAS COUNTY, TX: Dismissal of Jackson Prisoners Suit Recommended DALLAS COUNTY, TX: Dismissal of Washington Prisoners Suit Endorsed DEVELOPMENTAL PATHWAYS: Court Narrows Claims in FLSA Suit DICK'S SPORTING: Court Approves Class Notice in Greer DOW CHEMICAL: Court Denies Remand of Environmental Suit DRAEGER INC: Fails to Pay Overtime Under FLSA & PMWA, Bohan Says DST SYSTEMS: Bids for Lawyer Fees in Scott Securities Suit Denied DXC TECHNOLOGY: Class Suit Claims Job Cuts Tied to Profit Targets E & E FOOD: Fails to Pay Delivery Men Minimum Wage, Galindo Says E.I. DU PONT: Boothe Farms Files Class Action Over Pesticide EAGLE DINER: $162.5K Settlement in Flores Suit Has Prelim Approval FARFETCH LIMITED: Omdahl Sues Over Share Price Drop FLORIDA: Approval of $15.5MM 'Best and Brightest' Suit Deal Sought FORD MOTOR: Court Dismisses Sugasawara Suit With Leave to Amend GEICO GENERAL: Court Certifies Class Under Rule 23 in Green Suit GOLDMAN SACHS: Court Appoints Lead Plaintiff, Counsel in Plaut Suit GRUMA CORP: Arbitration Order in Maravilla FLSA Suit Affirmed GULF2BAY SOFTWASH: Mejia Sues Over Unpaid Minimum, Overtime Wages HEADWAY TECHNOLOGIES: Barbera Sues Over HDD Spring Price-fixing HEADWAY TECHNOLOGIES: Leff Sues Over HDD Spring Price-fixing HEALTHY HEART: Underpays Route Drivers, Hernandez Suit Says HILTON WORLDWIDE: Faces Winnie Suit in District of Puerto Rico HOMEFED CORP: Consolidation of Stockholder Cases Sought INDIANA: Court Dismisses Harmon Suit for Failure to State Claim INDIANA: Court Junks Westville Inmate's Bid to Pursue Class Suit INTERNATIONAL MEDICATION: Brenes Seeks Minimum & Overtime Wages JUST ENERGY: Rosen Law Files Securities Fraud Suit JUUL LABS: McFaull Sues Over Deceptive Marketing of Vape Products KARYOPHARM THERAPEUTICS: Mehdi Files Securities Class Action KERYX BIOPHARMACEUTICALS: Court Denies Certification in Karth KIA MOTORS: Faces Maldonado Suit Over Defective Engine System KINKISHARYO INT'L: Armendariz Seeks Minimum & Overtime Wages LG CHEM: Ninth Circuit Affirms Approval of Young Suit Settlement M.J. BROTHERS: $525K Rodriguez Suit Settlement Has Final Approval MACROGENICS, INC: Hill Sues over Share Price Drop MEREDITH CORPORATION: Schall Law Files Class Action Lawsuit MIDLAND CREDIT: Leedeman Sues over Debt Collection MOON RIDGE: W.D. Mo. Certifies Class in Morris Suit NASSAU COUNTY, NY: Dismissal Order in Falk Suit Affirmed NATIONSTAR MORTGAGE: Settlement in Zaklit Suit Has Final Approval NAVY FEDERAL: Fourth Circuit Appeal Initiated in Lambert Suit NERIUM INT'L: Sept. 18, 2018 Arbitration Order in Jia Clarified NESTLE INC: Loses Bid to Junk Class Action Over 'No GMO' Label NESTLE USA: Ct. Denies Bid to Dismiss Latiff False Advertising Suit NESTLE USA: Sued by Bakers Over 'Fake' White Chocolate Chips NEW ORLEANS, LA: Partial Summary Judgment in McMahon Suit Affirmed NEW YORK: Gulino et al Filed Appeal in 2nd Cir. NEWREZ LLC: Labrecque Sues Over Failure to Timely Pay Taxes NISSAN NORTH: Suit Over FEB, AEB Transferred to M.D. Tenn. OLLIE'S BARGAIN: Rigrodsky & Long Files Class Action Lawsuit OLLIE'S BARGAIN: Schall Law Files Class Action Lawsuit OPTICAL DISK: Supreme Court OKs Price-Fixing Class Action Suits OREXIGEN THERAPEUTICS: Court Narrows Claims in Securities Suit OVERHILL FARM: Zamora Suit Remanded to California Superior Court PHARMERICA CORPORATION: Court Dismisses Riordan Securities Suit PHOTOFAX INC: Ludemann Sues Over Unpaid Wages and BIPA Breach PICK A PART: Class in Cardoso FLSA Suit Conditionally Certified PIPELINE HEALTH: Pechulis et al. Seek Back Pay and Benefits PIZZA BAKER: Court Narrows Claims in Clark FLSA Suit PORTFOLIO RECOVERY: Dayton Sues Over Illegal Collection of Debts PRISONER TRANSPO: Groover Pro Bono Counsel Gets $17.9K Costs Refund PROFESSIONAL PROBATION: Harper Appeals Decision to 11th Circuit REAL ESTATE ELEVATED: Hamilton Sues Over TCPA Violation RIPPLE LABS: Moves to Dismiss Class Action Complaint RITE AID: Court Narrows Claims in Silva Mislabeling Suit ROMEO'S PIZZA: Underpays Delivery Drivers, Branning Suit Asserts SANOFI SA: Hagens Berman Files Class Action Lawsuit SANTANDER CONSUMER: Court Refuses Bid to Intervene in Lindblom SENOR FROG'S: Kayat Files Suit Over Unsolicited Marketing SENTRY LIFE: Court Dismisses Judgment on Pleadings in Maxon Suit SHIRE US: Bid to Certify Class in Intuniv Antitrust Suit Denied SWEETWORKS CONFECTIONS: Judgment on Pleadings in Green Partly OK'd TEXAS: Court Refuses to Appoint Attorney in Rogers Inmate Suit TEXAS: Inmates Sue Over Lack of Hepatitis C Drug TORRANCE REFINERY: Judge Weighs Class Certification TRULIEVE INC: Lyttle Sues Over Privacy Rights Breach Under FCRA ULTA SALON: $3.4MM Settlement in Wise Labor Suit Has Prelim OK UMBERTOS OF HALLANDALE: Vazquez Seeks Overtime Pay UNITED INSURANCE: Court Narrows Claims on Insurance Suit UNITED STATES: Court Dismisses Suit Over Bump-Fire Stock Device UNIVERSITY OF LA VERNE: Stupar Seeks Proper Wages, Penalties VANDAD SHEMIRANI: Huite Files Suit for Wrongful Eviction VISALUS INC: Bid to Decertify Class in Wakefield TCPA Suit Denied WEINERT ENTERPRISES: Filing of Second Amended Anderson Suit Allowed WELTMAN WEINBERG: Court OKs Class Certification in Bitzko WILCO LIFE: LSCC Appeals C.D. California Ruling to Ninth Circuit YAMAHA MOTOR: Krautkramer Sues Over Radiator Defect ********* 2U INC: Glancy Prongay Reminds Investors of Oct. 7 Deadline ----------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") reminds investors of the upcoming October 7, 2019 deadline to file a lead plaintiff motion in the class action filed on behalf of 2U, Inc. (NASDAQ: TWOU) investors who purchased securities between February 26, 2018 and July 30, 2019, inclusive (the "Class Period"). If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, at 310-201-9150, Toll-Free at 888-773-9224, or by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. On May 7, 2019, the Company lowered its revenue guidance for fiscal 2019 to a range of $534 to $537 million, from prior guidance range of $546.6 to $550.8 million, due to declining average enrollments in some of its largest graduate programs. On this news, the Company's share price fell $15.16, or nearly 26%, to close at $44.77 per share on May 8, 2019, on unusually heavy trading volume. Then on July 30, 2019, after the market closed, the Company reported a larger-than-expected loss for second quarter 2019. The Company also revised its guidance for fiscal 2019, expecting a net loss between $157.5 and $151.5 million, compared to prior net loss guidance between $79.0 and $77.2 million, because it would "moderate [its] grad program launch cadence." On this news, the Company's share price fell $23.70, or nearly 65%, to close at $12.80 per share on July 31, 2019, on unusually heavy trading volume. The complaint filed in this class action alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose to investors: (1) that the Company faced increasing competition in online education and particularly regarding graduate programs; (2) that the Company faced certain program-specific issues that negatively impacted its performance; (3) that, as a result, the Company's business model was not sustainable; (4) that the Company would slow its program launches; and (5) that, as a result of the foregoing, Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis. If you purchased or otherwise acquired 2U, Inc. securities during the Class Period you may move the Court no later than October 7, 2019 to request appointment as lead plaintiff in this putative class action lawsuit. To be a member of the class action you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the class action. If you wish to learn more about this class action, or if you have any questions concerning this announcement or your rights or interests with respect to the pending class action lawsuit, please contact Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com, or visit our website at www.glancylaw.com. If you inquire by email please include your mailing address, telephone number and number of shares purchased. Contact: Lesley Portnoy, Esq. Glancy Prongay & Murray LLP, Los Angeles Tel: 310-201-9150 or 888-773-9224 Website: www.glancylaw.com Email: shareholders@glancylaw.com LPORTNOY@GLANCYLAW.COM [GN] 379 HORSEBLOCK: Rodriguez Seeks Minimum & Overtime Wages -------------------------------------------------------- FELIPE RODRIGUEZ, on behalf of himself and all other persons similarly situated, the Plaintiff, vs. 379 HORSEBLOCK PRODUCE COPRP., 870 MIDDLE ISLAND CORP., DAVID CORONA and FRANKLIN TAVERAS, JR., the Defendants, Case No. 2:19-cv-05196 (E.D.N.Y., Sept. 11, 2019), seeks to recover unpaid minimum and overtime wages under the Fair Labor Standards Act and the New York Labor Law. Mr. Rodriguez regularly worked more than 40 hours in a workweek but was not paid at the rate of time and one-half for all hours in excess of 40 hours per week. The Plaintiff was employed as an hourly paid non-exempt employee by the Defendants from November 9, 2016 to July 2019. The Plaintiff's duties included store maintenance, the lawsuit says. The Defendants operate grocery stores located in Farmingville and Middle Island, New York.[BN] The Plaintiff is represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 825 Veterans Highway Ste. B Hauppage, NY 11788 Telephone: (631) 257 5588 E-mail: promero@romerolawny.com 811 CRISTOBAL: Loewe Seeks Unpaid Minimum, Overtime Wages --------------------------------------------------------- MAYA LOEWE, individually and on behalf of all others similarly situated, Plaintiff, v. 811 CRISTOBAL, INC. dba DREAMS CLUB, a California corporation; ANNA VAHANIAN, an individual; HOVHANES VAHANIAN, an individual; DOE MANAGERS 1-3; and DOES 4- 100, inclusive, Defendants, Case No. 2:19-cv-08178 (C.D. Cal., Sept. 20, 2019) seeks damages over Defendants' violation of the mandatory minimum wage and overtime provisions of the Fair Labor Standards Act, and for illegally absconding with Plaintiff's tips. These causes of action arise from Defendants' willful actions while Plaintiff was employed by Defendants from approximately June 2016 until December 2017 and sporadically in 2018. During her time being employed by Defendants, Plaintiff was denied minimum wage payments and denied overtime as part of Defendants' scheme to classify Plaintiff and other dancers as "independent contractors." As a result of Defendants' violations, Plaintiff and the FLSA Class Members seek to recover double damages for failure to pay minimum wage, overtime liquidated damages, interest, and attorneys' fees, says the complaint. Plaintiff began working as a dancer for Defendants in June 2016 and continued until approximately December 2017 and sporadically in 2018. Defendants operate an adult-oriented entertainment facility located at 811 Cristobal Avenue, Wilmington, California 90744.[BN] The Plaintiffs are represented by: John P. Kristensen, Esq. Jesenia A. Martinez, Esq. Jacob J. Ventura, Esq. KRISTENSEN WEISBERG, LLP 12540 Beatrice Street, Suite 200 Los Angeles, CA 90066 Phone: (310) 507-7924 Fax: (310) 507-7906 Email: john@kristensenlaw.com jesenia@kristensenlaw.com jacob@kristensenlaw.com ACCESS BUSINESS: Arellano Sues Over Unpaid Overtime, Missed Breaks ------------------------------------------------------------------ MARCO ARELLANO, individually, and on behalf of other members of the general public similarly situated; Plaintiff v. ACCESS BUSINESS GROUP LLC, an unknown business entity; NUTRILITE, an unknown business entity; AMWAY, an unknown business entity; ALTICOR INC., an unknown business entity; and DOES 1 through 100, inclusive, Defendants, Case No. 19STCV33430 (Cal. Super. Ct., Los Angeles Cty., Sept. 20, 2019) is a class action brought pursuant to Section 382 of the California Code of Civil Procedure. According to the complaint, the Defendants hired Plaintiff and the other class members, classified them as hourly-paid or non-exempt employees, and failed to compensate them for all hours worked and missed meal periods and/or rest breaks. Plaintiff and the other class members worked over 8 hours in a day, and/or 40 hours in a week during their employment with Defendants. Plaintiff was employed by the Defendants, jointly and severally, as an hourly-paid, non-exempt employee, from approximately July 2012 to approximately January 2018. ACCESS BUSINESS GROUP LLC operates business in the State of California, including the County of Los Angeles.[BN] The Plaintiff is represented by: Edwin Aiwazian, Esq. LAWYERS for JUSTICE, PC 410 West Arden Avenue, Suite 203 Glendale, CA 91203 Phone: (818) 265-1020 Fax: (818) 265-1021 AIR METHODS: Settlement in Day Wage & Hour Suit Has Prelim Approval ------------------------------------------------------------------- In the case, LETCH G. DAY, et al., Plaintiffs, v. AIR METHODS CORPORATION, et al., Defendants, Civil Action No. 5:17-CV-183-CHB (E.D. Ky.), Judge Claria Horn Boom of the U.S. District Court for the Eastern District of Kentucky, Central Division, Lexington, granted the Plaintiffs' Unopposed Motion for Class Certification and Preliminary Approval of Class Action Settlement. The matter is before the Court on the Report and Recommendation of U.S. Magistrate Judge Matthew A. Stinnett. Pursuant to 18 U.S.C. Section 636(b)(1)(B)-(C), the Court referred the Plaintiffs' Motion for Preliminary Approval for findings of fact, conclusions of law, and recommendation. Magistrate Judge Stinnett also conducted a status conference in the matter and ordered supplemental briefing. Thereafter, the parties filed a Joint Supplement to the Plaintiff's Unopposed Motion for Class Certification and Preliminary Approval of Proposed Settlement. In his Recommendation, Magistrate Judge Stinnett recommended that the Court find as follows: 1. That the Court will likely be able to approve the Settlement Agreement on behalf of all current and former flight nurses and flight paramedics employed by AMC in the Commonwealth of Kentucky at any time from March 22, 2012, through the date the Court enters an Order of preliminary approval; 2. That the Court will likely be able to certify the proposed Class for the purposes of judgment on the proposed Settlement Agreement only; 3. The Court approves the proposed Notice and Opt-out forms with the changes noted in his Recommendation; 4. The Court approves a website and First Class United States Postal Mail as means of distributing notice to the Class Members, to be disseminated within 60 days of the entry of the Order of preliminary approval; and 5. A Final Approval Hearing will be held before the District Court at the discretion of the Court with it to establish any and all necessary interim deadlines as described in Fed. R. Civ. P. 23. Magistrate Judge Stinnett instructed the Parties to file objections to the Recommendation within 14 days from its entry pursuant to Fed. R. Civ. P. 42 and 28 U.S.C. Section 363(b) and (c). Neither party has filed objections to the Recommendation, and the time to do so has passed. Nonetheless, Judge Boom has reviewed the parties' filings, the Settlement Agreement, and the Recommendation fully. Therefore, and being sufficiently advised, she accepted and adopted Magistrate Judge Stinnett's Recommendation as the Opinion of the Court. Accordingly, Judge Boom granted the Plaintiffs' Motion for Preliminary Approval subject to the modifications adopted in the Court's Report and Recommendation. She preliminarily approved the Parties' proposed settlement. The class defined in the Parties' Settlement Agreement is conditionally approved for settlement purposes, including $900,000 in attorney's fees. Additionally, the schedule set forth in the Settlement Agreement is approved. The Judge appointed (i) Letch G. Day as the class representative; (ii) the counsel for Named Plaintiffs, Charles W. Arnold and Christopher D. Miller of Arnold & Miller, PLC and J. Robert Cowan of Cowan Law Office, PLC, as the class counsel; and (iii) CPT Group, Inc. as the settlement administrator to administer the settlement in accordance with the settlement agreement. The notice packet and opt-out forms are approved, conditioned on the modifications contained in Magistrate Judge Stinnett's Recommendation. A Final Fairness Hearing is set for Nov. 20, 2019, at 10:00 a.m. A full-text copy of the Court's Aug. 21, 2019 Order is available at https://is.gd/FkSrJC from Leagle.com. Letch G. Day, on behalf of themselves and all others similarly situated, Stephanie E. Fields, on behalf of themselves and all others similarly situated, Steven D. Frasure, on behalf of themselves and all others similarly situated, Sonya A. Burkhart, on behalf of themselves and all others similarly situated & Edwin Bentley, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Charles William Arnold -- carnold@arnoldmillerlaw.com -- Christopher D. Miller -- cmiller@arnoldmillerlaw.com -- Arnold & Miller, Christopher M. Moody, Moody & Stanford, pro hac vice, Gerry Lynn Calvert, II, Cowan Law Office, PLC, Henrietta Gera Meyman, Apt B, J. Robert Cowan -- kylaw@cowanlawky.com -- Cowan Law Office, PLC & Repps D. Stanford, Moody & Stanford, pro hac vice. Air Methods Corporation, doing business as Air Methods Corporation, Air Methods of Kentucky, Air Methods, Air Idaho Rescue, Arch Air Medical Service, Black Hills Life Flight, Lifenet, Lifenet South Carolina, Mercy Air, React Rockford Memorial Hospital, Wyoming Life Flight, Alabama Life Saver, Bayflite, San Antonio Airlife, Guthrie Air, Lifestart, Portneuf Air Rescue, Native Air, Medflight, Reactsaints Flight, Wakemed Air Mobile, Lifemed of Alaska, University Hospitals Medevac, Tri-State Care Flight and Mediflight of Oklahoma, William Kelly Miller & Joseph Barkley Hill, Defendants, represented by Christopher M. Ahearn , Fisher & Phillips LLP, Cynthia Blevins Doll -- cdoll@fisherphillips.com -- Fisher & Phillips, Lonnie D. Giamela, Fisher & Phillips LLP & Megan R. U'Sellis -- musellis@fisherphillips.com -- Fisher & Phillips. AMAZING LASH: Covell Hits Illegal Telemarketing SMS Ads ------------------------------------------------------- Brittany Covell, individually and on behalf of all others similarly situated, Plaintiff, v. Amazing Lash Studio Franchise LLC and Does 1-100, Defendant, Case No. 19-cv-01613 (S.D. Cal., August 27, 2019), seeks statutory damages, punitive damages, costs and attorney fees for violation of the Telephone Consumer Protection Act. Covell visited the Lash Studio located at their Carlsbad location to receive an eyelash extension service and was required to input her personal information, including her cell phone number into their point of sale registry. After her appointment, she began to receive SMS ads without her express written consent to receive text message marketing and advertisement messages. [BN] Plaintiff is represented by: Todd D. Carpenter, Esq. Scott G. Braden (CA 305051) CARLSON LYNCH, LLP 1350 Columbia St. Ste. 603 Tel: (619) 762-1900 Fax: (619) 756-6991 Email: tcarpenter@carlsonlynch.com sbraden@carlsonlynch.com APPLE INC: Court Denies Summary Judgment Bid in Grace Suit ---------------------------------------------------------- In the case, CHRISTINA GRACE, et al., Plaintiffs, v. APPLE, INC., Defendant, Case No. 17-CV-00551-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, denied Apple's motion for summary judgment. On Feb. 2, 2017, Plaintiffs Grace and Ken Potter bring the class action against Defendant Apple for trespass to chattels and violation of California's Unfair Competition Law ("UCL"). The Plaintiffs' action arises from the events of April 16, 2014, when Apple's FaceTime feature stopped working for owners of Apple's iPhone 4 and iPhone 4s devices who were running Apple's iOS 6 operating system. That same day, Apple employee David Biderman reported in an email that the certificate expirations started at: Apr 16 22:54:46 2014 GMT, impacting users that haven't upgraded to the most recent releases which contain the certificate fix. As a result, iPhone 4 and iPhone 4S users using iOS6 complained to Apple that FaceTime had broken for them. The FaceTime break to iOS6 reduced Apple's reliance on the relay method of FaceTime connections, which imposed greater costs on Apple than the peer-to-peer method implemented in iOS7. Grace filed a putative class action complaint in this Court against Apple. The complaint alleged causes of action against Apple for (1) trespass to chattels, and (2) violations of the UCL. Before the Court is Apple's motion for summary judgment on both of the Plaintiffs' remaining claims, for (1) trespass to chattels; and (2) violation of the unfair prong of California's UCL. To the extent that Apple contends that the Plaintiffs' theory expands trespass to chattels to include any instance in which a defendant fails to remedy a design defect, Apple ignores that the tort of trespass to chattels requires an "intentional interference." Thus, a defendant's failure to remedy a design defect, without evidence of the defendant's intent to interfere with the plaintiff's property, would not give rise to a trespass to chattels claim. In the instant case, Judge Koh finds that the Plaintiffs have identified evidence that could prove Apple's intent to interfere with their iPhones. Accordingly, she rejects Apple's first argument for summary judgment on the Plaintiffs' trespass to chattels claim. The Judge also denies Apple's motion for summary judgment on the Plaintiffs' trespass to chattels claim. She finds that the Plaintiffs' trespass to chattels claim arises not from a contract, but from Apple's intentional, post-purchase conduct. They have identified evidence that even though Apple regularly renewed certificates to avoid service outages, and even though Apple knew that FaceTime would cease to operate when the iPhone Device CA certificate expired, Apple resolved the certificate expiration issue only for iOS7 users and not for iOS6 users. Because the Plaintiffs have identified evidence from which a jury could conclude that such a post-purchase trespass occurred, the economic loss rule is inapplicable. The Judge next addresses the Plaintiffs' UCL claim. The Plaintiffs allege that Apple violated the UCL because Apple's FaceTime break was "unfair" and "without any acceptable justification, whether business or otherwise." Apple moves for summary judgment on the basis that the Plaintiffs' damages model fails to measure restitution, the only relief available to the class under the UCL. California's UCL prohibits unfair competition, including any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. The UCL creates a cause of action for business practices that are (1) unlawful, (2) unfair, or (3) fraudulent. Each "prong" of the UCL provides a separate and distinct theory of liability. The Plaintiffs proceed under the unfair prong of the UCL. Under the UCL, prevailing plaintiffs are generally limited to injunctive relief and restitution. In the instant case, the Judge declines to certify an injunctive class under Rule 23(b)(2). The Plaintiffs are only entitled to seek restitution under the UCL. The Judge also rejects Apple's argument that the Plaintiffs' damages model does not measure restitution under the UCL. She explains that California law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation. In the instant case, the Plaintiffs' theory is that the FaceTime break violated the UCL. Thus, the Judge held that comparing the market value of the iPhone 4 and iPhone 4S before and after that information was revealed -- i.e. before and after the FaceTime break -- seems an accurate way of determining how much class members lost as a result of the FaceTime break. Accordingly, she concludes that Dr. Hastings' damages model aligns with the Plaintiffs' UCL theory of liability, measures restitution, and complies with Comcast Corp. v. Behrend. Finally, the Judge again rejects Apple's argument that the Plaintiffs' damages model is an inadequate measurement of restitution under the UCL. She holds that the Plaintiffs' damages model provides "a reasonable basis of computation" for how much they overpaid to Apple. And it is undisputed that the Plaintiffs paid money to Apple for their iPhones. Therefore, the Judge denies Apple's motion for summary judgment on the Plaintiffs' UCL claim. For the foregoing reasons, Judge Koh denied Apple's motion for summary judgment. A full-text copy of the Court's Aug. 21, 2019 Order is available at https://is.gd/gLX4mK from Leagle.com. Christina Grace, Plaintiff, represented by Alexander Lee Simon -- asimon@pswlaw.com -- Pearson Simon & Warshaw, LLP, Bradley Wayne Caldwell -- bcaldwell@caldwellcc.com -- Caldwell Cassady Currry P.C., pro hac vice, Bruce Lee Simon -- bsimon@pswlaw.com -- Pearson Simon & Warshaw, LLP, Christopher S. Stewart, Caldwell Cassady Curry, pro hac vice, Daniel Rollins Pearson, Caldwell Cassady and Curry, Daniel L. Warshaw -- dwarshaw@pswlaw.com -- Pearson, Simon & Warshaw, LLP, David F.E. Tejtel -- dtejtel@fotpllc.com -- Friedman Oster & Tejtel PLLC, Donald Scott Macrae -- smacrae@steyerlaw.com -- Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Jason Dodd Cassady -- jcassady@caldwellcc.com -- Caldwell Cassady and Curry, pro hac vice, Jill Michelle Manning -- jmanning@steyerlaw.com -- Steyer Lowenthal Boodrookas Alvarez & Smith LLP, John Austin Curry -- acurry@caldwellcc.com -- Caldwell Cassady Curry P.C., pro hac vice, John Summers, Caldwell Cassady Curry, pro hac vice, Suneel Jain, Steyer Lowenthal, Warren Joseph McCarty, III, Caldwell Cassady Curry P.C. & Allan Steyer -- asteyer@steyerlaw.com -- Steyer Lowenthal Boodrookas Alvarez & Smith LLP. Ken Potter, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Alexander Lee Simon, Pearson Simon & Warshaw, LLP, Bruce Lee Simon, Pearson Simon & Warshaw, LLP, Daniel Rollins Pearson, Caldwell Cassady and Curry, Daniel L. Warshaw, Pearson, Simon & Warshaw, LLP, Donald Scott Macrae, Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Jill Michelle Manning, Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Suneel Jain, Steyer Lowenthal, Warren Joseph McCarty, III, Caldwell Cassady Curry P.C. & Allan Steyer, Steyer Lowenthal Boodrookas Alvarez & Smith LLP. Apple, Inc., Defendant, represented by Robert Alexander Pilmer -- alexander.pilmer@kirkland.com -- Kirkland & Ellis LLP, Ashley Elizabeth Neglia -- ashley.neglia@kirkland.com -- Kirkland and Ellis LLP, Eugene Novikov -- enovikov@durietangri.com -- Durie Tangri LLP, Jacob Johnston -- jacob.johnston@kirkland.com -- Kirkland Ellis LLP, Joseph Allen Loy -- joseph.loy@kirkland.com -- Kirkland & Ellis LLP, pro hac vice, Joshua H. Lerner -- jlerner@durietangri.com -- Durie Tangri LLP, Sonal N. Mehta -- smehta@durietangri.com -- Durie Tangri LLP, Stephen J. Elkind, Durie Tangri LLP, pro hac vice & Tanya Louise Greene -- tanya.greene@kirkland.com -- Kirkland and Ellis LLP. BrightStar Corporation, Non-Party, Miscellaneous, represented by Joseph M. Wahl -- Joseph.Wahl@btlaw.com -- Barnes and Thornburg LLP. Akamai Technologies, Inc., Miscellaneous, represented by James L. Day -- jday@fbm.com -- Farella Braun Martel. APPLE INC: Phones Emit Excessive Radiation, Cohen Suit Alleges -------------------------------------------------------------- Andrew Cohen, Kaleah C. Allen, Kimberly Benjamin, Timothy Hornick, Nicholas Carlson, Jonathan Wolfe, Mark Weiler, Chad Smith, Sarah D. Smith, And Scott Cischke, individually and on behalf of all others similarly situated, Plaintiffs v. Apple, Inc. and Samsung Electronics America, Inc., Defendants, Case No. 19-cv-05322, (N.D. Cal., Aug. 23, 2019), seeks damages, injunctive relief and other relief resulting from negligence under various state consumer protection statutes. The Defendants are global manufacturers of mobile phones and gadgets. The Plaintiffs allege that the Defendants' devices emit excessive amounts of radio waves that exceed the human exposure limit.[BN] The Plaintiffs are represented by: Jennie Lee Anderson, Esq. ANDRUS ANDERSON LLP 155 Montgomery Street, Suite 900 San Francisco, CA 94104 Telephone: (415) 986-1400 Facsimile: (415) 986-1474 E-mail: jennie@andrusanderson.com - and - Elizabeth A. Fegan, Esq. Timothy A. Scott, Esq. FEGAN SCOTT LLC 150 S. Wacker Dr., 24th Floor Chicago, IL 60606 Telephone: (312) 741-1019 Facsimile: (312) 264-0100 E-mail: beth@feganscott.com tim@feganscott.com - and - J. Barton Goplerud, Esq. SHINDLER, ANDERSON, GOPLERUD & WEESE, P.C. 5015 Grand Ridge Drive, Suite 100 West Des Moines, IA 50265 Telephone: (515) 223-4567 E-mail: goplerud@sagwlaw.com ASSET RECOVERY: Court OKs $12K Settlement in Sandri --------------------------------------------------- The United States District Court for the Eastern District of Wisconsin issued an Order granting Parties' Request for Final Approval of the Class Settlement Agreement in the case captioned JOHN SANDRI, individually and on behalf of all others similarly situated, Plaintiff, v. ASSET RECOVERY SOLUTIONS, LLC, an Illinois limited liability company; et al., Defendants. Case No. 1:18-cv-01182-WCG. (E.D. Wis.). The following Settlement Class is certified pursuant to Fed. R. Civ. P. 23(b)(3): All persons to whom Asset Recovery Solutions, LLC mailed an initial written communication to an address in the State of Wisconsin, during the period of August 1, 2017 through August 22, 2018, which made a settlement offer for a debt owed to Bureaus Investment Group Portfolio No. 15 LLC, and which stated should you choose not to accept this offer, the account balance may periodically increase due to the addition of accrued interest as provided in your agreement with the original creditor. The Court further finds that provisions for notice to the class satisfy the requirements due process pursuant to the Federal Rules of Civil Procedure, including Rule 23, the United States Constitution and any other applicable law. The Court finds the Settlement including the Parties' stipulation is fair, reasonable, and adequate and hereby finally approves the Agreement submitted by the Parties, including the Release and payments by Asset Recovery. Specifically, the Court finds: (A) Plaintiff, as Class representative, and Class Counsel have adequately represented the class (B) the Agreement was negotiated at arm's length (C) the relief provided to the Class is adequate, taking into account (i) the costs, risks, and delay of trial and appeal (ii) the effectiveness of the proposed method for distributing relief to the Class, (iii) the terms regarding an award of Class Counsel attorneys' fees and costs, and (iv) the Agreement and (D) the Agreement equitably treats Class Members relative to each other. Upon the Effective Date, as defined in the Agreement, Asset Recovery shall: (a) Create a class settlement fund of $12,000.00, which Class Counsel through the Administrator will distribute pro rata to each Class Member whose Class Notice was not returned as undeliverable and who did not him/herself from the Settlement. Class Members will receive their share of the Class Recovery by check, which shall become void sixty (60) days from the date of issuance. Any checks that have not been cashed by the void date, along with any unclaimed funds remaining in the Class Recovery will be disbursed in the following order: (i) to pay the costs associated with providing notice to Class Members and administering the Class Recovery; and (ii) any remainder donated as a cy pres award to Legal Action of Wisconsin. (b) Pay Plaintiff $2,000.00. (c) Pursuant to the Parties' Stipulation, Asset Recovery shall pay Class Counsel $35,000.00 for their attorneys' fees and costs incurred in the action based on their submitted hourly rates and time expended. Class Counsel shall not request additional fees or costs from Asset Recovery or the Class Members. The Court finds the Agreement including the Parties' stipulation is fair and made in good faith. The terms of the Agreement, including the Parties' stipulation are incorporated into this Order. This Amended Order shall operate as a final judgment and dismissal without prejudice of the claims in this action including Class Counsels' award of attorneys' fees, costs and expenses. The Court finds, in accordance with Fed. R. Civ. P. 54(b), that there is no just reason for delay of enforcement of, or appeal from, this Order. A full-text copy of the District Court's September 19, 2019 Order and Judgment is available at https://tinyurl.com/yxs5fq6l from Leagle.com. John Sandri, individually and on behalf of all others similarly situated, Plaintiff, represented by Francis R. Greene , Stern Thomasson LLP, Philip D. Stern , Stern Thomasson LLP & Andrew T. Thomasson , Stern Thomasson LLP, 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1315 Asset Recovery Solutions LLC, an Illinois limited liability company, Defendant, represented by Douglas A. Albritton , Actuate Law LLC & Jeffrey M. Hansen , Actuate Law LLC, 311 South Wacker Drive Suite 3000, Chicago, IL, 60606 AT&T INC: Says Customers Can't Sue Over Sale of Location Data ------------------------------------------------------------- Joseph Cox, writing for Vice.com, reports that AT&T is arguing that its customers can't sue the company for selling location data to bounty hunters, according to recently filed court records. AT&T says the customers signed contracts that force them into arbitration, meaning consumers have to settle complaints privately with the company rather than in court. The filing is in response to a lawsuit filed by the Electronic Frontier Foundation (EFF). The news shows the hurdles consumers are faced with when trying to claim compensation from telecos and other tech giants that have arguably abused access to their data, including ultimately selling it to people without authorization to handle such information. "The plaintiffs have an uphill battle," Deborah Hensler, Director of Law and Policy Lab at Stanford University, said. The issue circles around mandatory arbitration; that is, forcing consumers to settle complaints privately with the company rather than in court. "Each time they entered into a new Wireless Customer Agreement with AT&T, they [the plantiffs] not only agreed to AT&T's Privacy Policy but also agreed to resolve their disputes with AT&T -- including the claims asserted in this action -- in arbitration on an individual basis," AT&T's filing from last week reads. When the plaintiffs, who are AT&T customers, accepted AT&T's terms and conditions when, say, purchasing a new phone, they also agreed specifically to the arbitration clause, AT&T argues. Did you know about an abuse of location data? We'd love to hear from you. Using a non-work phone or computer, you can contact Joseph Cox securely on Signal on +44 20 8133 5190, Wickr on josephcox, OTR chat on jfcox@jabber.ccc.de or email joseph.cox@vice.com The Arbitration Agreement on AT&T's website reads, "AT&T and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted." The class action lawsuit filed on behalf of AT&T customers came after multiple Motherboard investigations into the sale and abuse of phone location data. In January, Motherboard obtained the real-time location of a T-Mobile phone in Queens, New York, after paying a bounty hunter source $300. The data broker firm that provided access to that data, called Microbilt, also sold location information on Sprint and AT&T phones. Shortly after, Motherboard then reported that a company called CerCareOne had sold T-Mobile, AT&T, and Sprint to around 250 bounty hunter customers. In response, all of the telecos stopped selling the data. On top of that multiple lawyers filed class action lawsuits over the sale of phone location data, including the EFF and legal firm Pierce Bainbridge, which is the case this AT&T filing stems from. T-Mobile has used a similar argument in its own cases around phone location data too. "In general courts have upheld the application of mandatory arbitration clauses in consumer contracts that preclude litigating in court and typically also preclude any form of group proceeding in arbitration, meaning each claimant must proceed individually. In these sorts of small claims, the requirement to proceed individually further weakens the plaintiffs' position," Hensler said. But other courts have recently ruled that AT&T's argument has holes, meaning there may still be ways of consumers to sue the teleco giants for this and similar violations. Adam Gutride from law firm Gutride Safier LLP, which sued AT&T in another instance over roaming fees, told Motherboard in an email "In our case we persuaded the Ninth Circuit U.S. Court of Appeals that AT&T Mobility's arbitration clause is unenforceable. That is because the arbitration clause would prevent consumers from obtaining a 'public injunction' to stop illegal conduct." (The EFF lawsuit seeks an injunction to stop AT&T from selling location data again.) Gutride said AT&T is seeking a review from the 9th Circuit, and if that fails will go to the Supreme Court. Depending on the company, it can be possible to opt-out of arbitration clauses at the start of a contract. But of course that requires the consumer being aware of the issue in the first place. "If consumers carefully read [the] fine print they will find out how they can opt-out of the arbitration requirement. Most of course don't notice or pay attention to this, in which case their attempts to overcome the arbitration requirement subsequently are significantly weakened," Hensler said. [GN] BANKERS LIFE: Settlement in David Suit Has Final Court Approval --------------------------------------------------------------- The United States District Court for the Western District of Washington, Seattle, issued an Order granting Plaintiffs' Motion for Final Approval of a Class Action Settlement in the case captioned CHRISTINE DAVID and RODNEY CLURE, individually and on behalf of all others similarly situated, Plaintiffs, v. BANKERS LIFE COMPANY, a foreign corporation, Defendant. No. 14-cv-00766-RSL. (W.D. Wash.). The Court approves the Settlement, finding that it is fair, reasonable, and adequate to members of the Settlement Class, and consistent and in compliance with all requirements of Washington and federal law, for the reasons set forth in the parties' Stipulated Motion and in the Plaintiffs' Motion for Final Approval. The Court finds that Plaintiffs Christine David and Rodney Clure and Settlement Class Counsel adequately represented the Settlement Class for purposes of entering into and implementing the Settlement. The Court finds that Settlement Class Counsel's request for an award of attorneys' fees and costs is fair and reasonable, and hereby approves the request for an attorneys' fee and cost award of $370,000. After costs ($64,609), the remainder for attorneys' fees represents 30.5% of the Maximum Settlement Payment. Such figure is within the range of reasonable percentage awards in common fund cases. Counsel's declaration and the detailed billings attached to it demonstrate the time expended on the matter and a break-down of costs incurred. Such records show that Settlement Class Counsel has devoted substantial time and effort toward pursuing settlement class members' claims, even after decertification, moving to certify a narrower class and, failing that, positioning Plaintiffs' individual claims for trial and, if necessary, subsequent appeal. The result achieved under the circumstances supports the award. The Court approves payment in the amount of $10,000 to each of the named Plaintiffs as Settlement Class Representative Awards for their service on behalf of the Settlement Class. The parties are hereby directed to proceed with the settlement payment procedures specified under the terms of the Settlement Agreement. The Settlement Agreement is binding on all Participating Settlement Class Members, as defined in the parties' Settlement Agreement. Plaintiffs Christine David and Rodney Clure and Participating Settlement Class Members are bound by the Release of Claims set forth in Paragraph 2 of the Settlement Agreement, and are enjoined from maintaining, prosecuting, commencing, or pursuing any claim released under the Settlement Agreement, and are deemed to have released and discharged the Defendant and Released Parties from any such claims. A full-text copy of the District Court's September 19, 2019 Order is available at https://tinyurl.com/y3rt8pfq from Leagle.com. Christine David & Rodney Clure, individually and on behalf of all others similarly situated, Plaintiffs, represented by Adam J. Berger - berger@sgb-law.com - SCHROETER GOLDMARK & BENDER, Lindsay Halm - halm@sgb-law.com - SCHROETER GOLDMARK & BENDER, Martin S. Garfinkel , SCHROETER GOLDMARK & BENDER, 810 3rd Avenue, Suite 500 Seattle, WA 98104-1657 & Jamal N. Whitehead - whitehead@sgb-law.com - SCHROETER GOLDMARK & BENDER. Bankers Life and Casualty Company, a foreign corporation, Defendant, represented by Ryan Paul Hammond - rhammond@littler.com - LITTLER MENDELSON, Breanne Sheetz Martell - bsmartell@littler.com - LITTLER MENDELSON & Daniel L. Thieme - dthieme@littler.com - LITTLER MENDELSON. BEAUMONT HEALTH: Blanch Suit Seeks to Recover OT Pay Under FLSA --------------------------------------------------------------- GENEVA BLANCH, JOYCE BOWMAN And ALEXIS TRUITT, on behalf of themselves and others similarly situated v. BEAUMONT HEALTH, A Domestic Non-Profit Corporation, BOTSFORD CONTINUING CARE CORPORATION, A Domestic Non-Profit Corporation, OAKWOOD HEALTH PROMOTIONS, INC., A Domestic Non-Profit Corporation, Case No. 2:19-cv-12678-SJM-MJH (E.D. Mich., Sept. 11, 2019), is brought pursuant to the Fair Labor Standards Act to recover unpaid overtime, lost wage, an additional equal amount as liquidated damages, obtain declaratory relief, and reasonable attorneys' fees and costs. Beaumont Health is a Michigan Nonprofit Corporation. Beaumont Health does business throughout Michigan with its registered office listed as 26935 Northwestern Highway, in Southfield, Michigan. Oakwood Health Promotions, Inc. is a Domestic Non-Profit Corporation that does business relevantly as Beaumont Rehabilitation & Continuing Care Center, Dearborn. Oakwood does business throughout Michigan with its registered office listed as 2000 Town Center, Suite 1200, in Southfield, Michigan. Botsford Continuing Care Corporation is a Michigan Domestic Non-Profit Corporation that does business relevantly as Beaumont Rehabilitation & Continuing Care Center, Farmington Hills. Botsford does business throughout Michigan with its registered office listed as 26935 Northwestern Highway, in Southfield, Michigan. The Defendants, individually and jointly, are employers operating rehabilitation centers that are, or were for relevant times, a part of the Beaumont Health System. Beaumont Health owns and operates rehabilitation centers consisting of the operations known as Beaumont Rehabilitation & Continuing Care Center, Farmington Hills and Beaumont Rehabilitation & Continuing Care Center, Dearborn.[BN] The Plaintiffs are represented by: John A. Schipper, Esq. DISABILITY & BENEFITS ASSOCIATES OF MICHIGAN, PLC 200 E. Big Beaver Road Troy, MI 48083 Telephone: (248) 729-2414 E-mail: jschipper@disabilitybenefitsmi.com BERGER SUNSHINE: Lazo Suit to Recover Unpaid Overtime Wages ----------------------------------------------------------- ANGEL LAZO, HECTOR LAZO, JUAN LAZO, and SEGUNDO LAZO, individually and on behalf of all others similarly situated, Plaintiffs, v. BERGER SUNSHINE LLC, BUSHWACK 9 LLC, 599 JOHNSON LLC, and DAWSON STELLBERGER, WELLS STELLBERGER, and JON J. KILLKELLEY, as individuals, Defendants, Case No. 1:19-cv-05375-KAM-PK (E.D. N.Y., Sept. 20, 2019) is an action against Defendants to recover damages for egregious violations of state and federal wage and hour laws arising out of Plaintiffs' employment under the Fair Labor Standards Act and the New York Labor Law. Although Plaintiffs worked approximately 84 hours or more per week during the period of their employment by Defendants, Defendants did not pay Plaintiffs time and a half for hours worked over 40, a blatant violation of the overtime provisions contained in the FLSA and NYLL. Additionally, Defendants illegally withheld pay from Plaintiffs during their employment, says the complaint. Plaintiffs were employed by Defendants from August 2016 until October 2018. BERGER SUNSHINE LLC, is a corporation organized under the laws ofNew York with a principal executive office at 249 Smith Street #140, Brooklyn, New York 11231.[BN] The Plaintiffs are represented by: Roman Avshalumov, Esq. Helen F. Dalton & Associated, P.C. 80—02 Kew Gardens Road, Suite 601 Kew Gardens, NY 11415 Phone: 718-263-9591 Fax: 718-263-9598 BITESQUAD.COM LLC: Court Grants Arbitration Bid in Holley --------------------------------------------------------- The United States District Court for the Eastern District of Arkansas, Western Division, issued an Order granting Defendant's Motion to Compel Arbitration in the case captioned RUSSELL HOLLEY, et al., Plaintiffs, v. BITESQUAD.COM LLC d/b/a BITE SQUAD, Defendant. Case No. 4:18-cv-00572-KGB. (E.D. Ark.). Plaintiffs allege that Bite Squad violated the minimum wage provisions of the Fair Labor Standards Act (FLSA) and the Arkansas Minimum Wage Act (AMWA). Plaintiffs base their allegations upon Bite Squad's use of a tip credit, a method of compensation in which an employer pays its employees a base wage below the minimum wage, which may be permissible so long as the employees' tips ultimately bring their wages up to the minimum wage. Plaintiffs claim that Bite Squad violated the law by using a tip-credit system because it required its drivers to share tips with employees who did not customarily and regularly receive tips. In support of its motion to compel arbitration, Bite Squad presents the affidavit of David Schramm, the Chief Legal and Administrative Officer of Bite Squad and its wholly-owned subsidiary, KASA Delivery, LLC (KASA). Mr. Schramm avers that, after a potential employee applies for employment, the employee is emailed an electronic copy of a hiring packet containing among other documents an Employment Application, Employment Agreement, and an Arbitration Agreement, which the employee may complete at a BiteSquad location or on his or her own computer. Mr. Schramm states that the first time an applicant reaches a signature field, they choose to create their signature, which may be made by signing a field with the mouse or pointer, signing the field with their finger; signing the field with a typed signature in the font of their choosing; or uploading a picture of their signature. He also states that applicants had the option to choose whether they wanted to automatically affix their signature wherever it was required or use the process just described. Each Arbitration Agreement contains the following relevant language: Except as this Agreement otherwise provides, claims covered by this Agreement (sometimes referred to jointly and separately as Claims) include, but are not limited to, legal disputes with any individual or entity regarding wages or other compensation due, minimum wage and claims arising under the Fair Labor Standards Act and state statutes or regulations addressing the same or similar subject matters. Legal Standard The Federal Arbitration Act provides that certain arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. Courts must therefore rigorously enforce arbitration agreements according to their terms. The Court must first determine whether there is a valid arbitration agreement and then determine whether the claims fall within the terms of the arbitration agreement. Threshold questions of arbitrability are for a court to decide, unless there is clear and unmistakable evidence the parties intended to commit questions of arbitrability to an arbitrator. Ms. Cook, Mr. Lucas, Mr. Brown, and Ms. Hammons's Individual Claims Defendants argue that the Arbitration Agreements delegate the threshold issue of arbitrability to an arbitrator, not to this Court. The Eighth Circuit Court of Appeals has held the incorporation of the AAA Rules into a contract requiring arbitration to be a clear and unmistakable indication that the parties intended for the arbitrator to decide threshold questions of arbitrability. Defendants have presented the affidavit of Mr. Schramm, who swears to the authenticity of the Arbitration Agreements signed by the individual plaintiffs. Defendants have also presented copies of the Arbitration Agreements signed by each of the individual plaintiffs. The Arbitration Agreements each bear the signatures of the individual plaintiffs. Each of these arbitration agreements state that arbitrations pursuant to this Agreement shall be conducted in accordance with the procedures set forth in the American Arbitration Association's Employment Arbitration Rules. While Mr. Holley has presented an affidavit asserting that he did not sign the Arbitration Agreement, there is no evidence before the Court that the other individual plaintiffs disavow the Arbitration Agreements that bear their signatures. Taking the record evidence in the light most favorable to plaintiffs, the Court concludes that no reasonable juror could conclude that Ms. Cook, Mr. Lucas, Mr. Brown, and Ms. Hammons are not bound to the Arbitration Agreements. As the Arbitration Agreements incorporate the AAA Rules, the Court concludes that the arbitrator must determine his or her own jurisdiction over the controversy between Ms. Cook, Mr. Lucas, Mr. Brown, Ms. Hammons, and Bite Squad. Accordingly, the Court stays the individual claims brought by Ms. Cook, Mr. Lucas, Mr. Brown, and Ms. Hammons and refers those claims to an arbitrator for the arbitrator to determine whether those claims are arbitrable. Mr. Holley's Individual Claims Bite Squad also asserts that an arbitrator should determine whether Mr. Holley's claims are arbitrable. Mr. Holley argues that he is not bound by the Arbitration Agreement because his signature was forged and because the auto-fill feature is insufficient to create a binding contract The Court acknowledges that the Arbitration Agreement incorporates the AAA Rules. The Court could locate no Eighth Circuit case directly on point regarding whether an allegation of forgery that one party claims invalidates the arbitration agreement in its entirety is a matter of arbitrability to be decided by the arbitrator. However, Supreme Court and Eighth Circuit precedent suggests that this question belongs to the Court as the allegation of forgery goes to the issue of whether the parties actually agreed to arbitration Here, at a minimum, this Court is required to resolve as a threshold issue whether Mr. Holley entered into the Arbitration Agreement to determine whether Mr. Holley, along with the other individual plaintiffs, waived his ability to bring class and collective actions against Bite Squad. Even Bite Squad argues that language in the Arbitration Agreement vests the construction and enforcement of the class action waiver language in the Court, not an arbitrator. As a result, this Court will determine whether a valid arbitration agreement exists as to Mr. Holley. For the reasons explained elsewhere in this Order, the Court concludes that it does. Accordingly, the Court stays the individual claims brought by Mr. Holley and refers those claims to an arbitrator to determine whether such claims are arbitrable. Class and Collective Claims Bite Squad argues that that the class and collective actions brought by plaintiffs are barred by the Arbitration Agreements. Bite Squad points out that the Arbitration Agreements signed by each of the individual plaintiffs include the following class action waiver language: "Both the Company and you agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action, or as a member in any such class or collective proceeding." The Court determines that it is required to resolve as a threshold issue whether Mr. Holley entered into the Arbitration Agreement to determine whether Mr. Holley, along with the other individual plaintiffs, waived his ability to bring class and collective actions against Bite Squad. A full-text copy of the District Court's September 19, 2019 Order is available at https://tinyurl.com/y26lkaph from Leagle.com. Russell Holley, individually and on behalf of all others similarly situated, Susan Cook, individually and on behalf of all others similarly situated & David Bryan Lucas, individually and on behalf of all others similarly situated, Plaintiffs, represented by Christopher Wesley Burks , WH Law,1 Riverfront Pl, Suite 745, North Little Rock, AR 72114, Daniel D. Ford , Sanford Law Firm & Joshua Sanford - josh@sanfordlawfirm.com - Sanford Law Firm. Bitesquad.com LLC, doing business as Bite Squad, Defendant, represented by Timothy J. Wolf - twolf@bjpc.com - Brown & James, P.C. & Kathleen A. McCarthy , Brown & James, P.C., 800 Market St., Ste 1100, St. Louis, MO 63101-2501 BLUE DIAMOND: Varelli Says Vanilla-Flavored Drinks Mislabeled ------------------------------------------------------------- June Varelli, individually and on behalf of all others similarly situated, the Plaintiffs, vs. Blue Diamond Growers, the Defendant, Case No. 1:19-cv-05259 (E.D.N.Y., Sept. 14, 2019), says Blue Diamond Growers manufactures, distributes, markets, labels and sells almondmilk beverages purporting to be characterized by vanilla under the Almond Breeze brand. The Products are available to consumers nationwide from third-party retailers, including brick and mortar and online stores and directly from the Defendant's website. The Product Lines include Regular, Unsweetened, Reduced Sugar, Hint of Honey and Added Calcium and are sold in 8, 10, 11, 32, 64, and 96 ounce cartons and bottles across the Product Lines. The Products' labeling or advertising makes direct representations with respect to their primary recognizable and characterizing flavor, by word, vignette, e.g., depiction of a fruit, or other means, through the word "Vanilla" on the top of the principal display panel, parallel with the base of the product. Vanilla is considered a "high-risk [for food fraud] product because of the multiple market impact factors such as natural disasters in the source regions, unstable production, wide variability of quality and value of vanilla flavorings," second only to saffron in price. The Defendant's intent was to secure economic advantage in the marketplace against competitors by appealing to consumers who value products with this characterizing ingredient. The Plaintiff and class members observed and relied on the Defendant's claims, causing them to pay more than they would have, entitling them to damages, the lawsuit says.[BN] Attorneys for the Plaintiff are: Spencer Sheehan, Esq. SHEEHAN & ASSOCIATES, P.C. 505 Northern Blvd., Suite 311 Great Neck, NY 11021 Telephone: (516) 303-0552 Facsimile: (516) 234-7800 E-mail: spencer@spencersheehan.com - and - Michael R. Reese, Esq. REESE LLP 100 West 93rd Street, 16th Floor New York, NY 10025 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 E-mail: mreese@reesellp.com BOEHRINGER INGELHEIM: Hagens Berman Files Class Action Lawsuit -------------------------------------------------------------- Class-action law firm Hagens Berman has filed a second lawsuit regarding Sanofi and Boehringer Ingelheim's intentionally concealed cancer risks in its popular heartburn medication, Zantac. Attorneys are also calling the Food and Drug Administration's consumer-facing recommendations regarding the instance of a carcinogenic chemical in Zantac "highly questionable," and are urging those who take Zantac to consult with their doctors before continuing to take the medicine. The complaint also alleges that scientific testing that employs the FDA's own protocols shows that a single tablet of Zantac may react to form up to 26,000 times the FDA-approved limit of N‑nitrosodimethylamine (NDMA), a chemical which the FDA, EPA and World Health Organization classify as a carcinogen. Although the FDA has announced that it too found NDMA in Zantac and generic ranitidine, albeit at lower levels, the FDA has not urged companies to recall the drug, nor has it recommended that consumers stop taking Zantac. According to the firm's complaint, when one 150 mg tablet of Zantac is ingested, it undergoes a chemical reaction in the stomach to create more than 3,100 times the FDA-approved limit of NDMA. "There is no debate about the toxicity of NDMA. The EPA, World Health Organization, and the FDA itself have labeled it a carcinogen," said Steve Berman, managing partner of Hagens Berman and attorney leading the case for consumers. "That the FDA is recommending that consumers continue to take over-the-counter Zantac, instead of consulting with their physician, or encouraging individuals to take one of the many alternative medications over which there are no safety concerns, is questionable at best." If you have taken Zantac, you may have been exposed to carcinogens. Find out your rights » "Virtually every other regulator across the world investigating ranitidine has either recalled the drug, or at the very least, encouraged persons to speak with their physician before taking any further ranitidine. For example, Canada's FDA-equivalent, Health Canada, is urging manufacturers to stop the sale of drugs containing ranitidine," Berman added. "We too urge consumers consult with their doctors before taking any further ranitidine. We understand that the FDA has to conduct a proper investigation and encourage it to do so, but its meek recommendations merely create confusion and put consumers in danger before the FDA has determined whether these drugs are in fact safe. That's just wrong." Sandoz had agreed to recall its ranitidine products worldwide including in the U.S. The lawsuit, filed Sept. 20, 2019, in the U.S. District Court for the District of New Jersey, accuses Sanofi and Boehringer Ingelheim of knowingly manufacturing and selling over-the-counter Zantac containing a concealed carcinogen to millions in the U.S. suffering from heartburn and other gastrointestinal issues, including sour stomach, acid reflux or gastroesophageal reflux disease (GERD). The FDA has established a permissible daily intake limit of 96ng of NDMA, but recent testing using FDA-approved methods detected more than 2,500,000ng of NDMA per 150mg tablet of Zantac. Each Zantac tablet has been found to contain 26,000 times the FDA-approved amount of NDMA that can be safely ingested daily. According to the lawsuit, "Zantac's unprecedented sales were possible only because of a deception perpetrated by the drug's manufacturers on consumers…" The dangers of NDMA have been publicly known for more than 40 years, according to the lawsuit, and the WHO has described NDMA as "clearly carcinogenic." NDMA itself belongs to a family of chemicals called N-nitrosamines, which the EPA refers to as "potent carcinogens." Attorneys say that despite the accumulating scientific evidence showing Zantac exposed users to extremely high levels of NDMA, neither Sanofi nor Boehringer disclosed this risk. If you have concerns about any potential adverse health risks associated with Zantac (or generic ranitidine consumption), Hagens Berman recommends that you discuss the allegations in this lawsuit with your physician. Find out more about the class-action lawsuit against Sanofi for cancer-causing compounds in Zantac. About Hagens Berman Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action law firm with nine offices across the country. The firm's tenacious drive for plaintiffs' rights has earned it numerous national accolades, awards and titles of "Most Feared Plaintiff's Firm," and MVPs and Trailblazers of class-action law. More about the law firm and its successes can be found at hbsslaw.com. Follow the firm for updates and news at @ClassActionLaw. Contact: Ashley Klann, Esq. Tel: 206-268-9363 Email: ashleyk@hbsslaw.com [GN] BRAND ENERGY: Parties File Joint Status Report in McClure Suit -------------------------------------------------------------- In the case captioned MARLIN MCCLURE, an individual, for himself and those similarly situated, Plaintiff v. BRAND ENERGY SERVICES, LLC, a Delaware corporation doing business in California; BRAND ENERGY SERVICES OF CALIFORNIA, LLC, a Delaware corporation doing business in California; and DOES 1 through 100, inclusive, Defendants, Case No. 6:19-cv-01211 (E.D. Cal., Sept. 16, 2019), the parties provide the Court with a Joint Status Report Regarding the Issuance of the Parker Drilling decision by the United States Supreme Court. Pursuant to an Order of the Court dated February 21, 2019, staying the action in light of the United States Supreme Court's consideration of Newton v. Parker Drilling Mgmt. Servs., Ltd., 881 F.3d 1078 (9th Cir. 2018), review granted sub. nom. Parker Drilling Mgmt. Servs., Ltd. v. Newton, No. 18-389 (U.S. Supreme Court), the parties provide the Court with their Joint Status Report Regarding the Issuance of the Parker Drilling decision by the United States Supreme Court, as well as other procedural matters in the case.[BN] The Plaintiff is represented by: Michael A. Strauss, Esq. Aris E. Karakalos, Esq. Andrew C. Ellison, Esq. STRAUSS & STRAUSS, APC 121 N. Fir St., Suite F Ventura, CA 93001 Telephone: (805) 641-6600 Facsimile: (805) 641-6607 E-mail: mike@strausslawyers.com aris@strausslawyers.com andrew@strausslawyers.com The Defendants are represented by: Douglas J. Farmer, Esq. OGLETREE DEAKINS, NASH, SMOAK & STEWART, P.C. One Market Plaza San Francisco, CA 94105 Telephone: (415) 442-4869 E-mail: doug.farmer@ogletree.com BROOKFIELD ASSET: Rosson Sues Over Breach of Fiduciary Duties ------------------------------------------------------------- MARTIN ROSSON, derivatively on behalf of TERRAFORM POWER, INC., and individually on behalf of himself and all other similarly situated stockholders of TERRAFORM POWER, INC., Plaintiff, v. BROOKFIELD ASSET MANAGEMENT, INC., ORION US HOLDINGS 1 L.P., and BROOKFIELD BRP HOLDINGS (CANADA) INC., Defendants, and TERRAFORM POWER, INC., Nominal Defendant, Case No. 2019-0757- (Chancery Ct., Del., Sept. 19, 2019) is a claim asserted for breach of fiduciary duties against the Company's controlling stockholder. In October 2017, Brookfield became TerraForm's controlling stockholder, owning through its affiliates 51% of the Company's outstanding Class A common stock. Pursuant to the Company's Amended and Restated Certificate of Incorporation, Brookfield has the power to designate four of TerraForm's seven directors, power which it has used to appoint four members of Brookfield's senior management to TerraForm's board of directors. Pursuant to an agreement with TerraForm, Brookfield also appoints the Company's Chief Executive Officer, Chief Financial Officer, and General Counsel, and all three positions are also held by employees of Brookfield. On February 7, 2018, TerraForm announced that it intended to launch a voluntary tender offer to acquire 100% of the outstanding shares of Saeta Yield, S.A., a Spanish Company, for a purchase price estimated at $1.2 billion (the "Tender Offer"). In order to fund the Tender Offer, TerraForm announced that it expected to commence an equity offering of its common stock to raise $400 million, either offered pro rata to its existing stockholders or to the general public, while using its available liquidity to fund the remaining $800 million. Without any explanation, this approach was soon abandoned. Instead, on June 11, 2018, TerraForm entered into a private placement with various affiliates of Brookfield, pursuant to which TerraForm sold to Brookfield 60,975,609 shares of the Company's common stock for $10.66 per share, representing total consideration of approximately $650 million (the "Private Placement"). The $650 million was used to fund the Tender Offer along with $527 million of the Company's available liquidity. The terms of the Private Placement were unfair to the Company and its minority stockholders. As a result of the Private Placement, Brookfield increased its TerraForm ownership stake and voting power from 51% to 65.3%. This increase provided Brookfield with two significant benefits for which Brookfield should have paid a control premium. First, with a bare majority ownership stake of just 51%, Brookfield could have lost absolute control of the Company following even a minor equity issuance by the Company, and accordingly the substantial increase in ownership helped cement Brookfield's control. The Board's Conflicts Committee was responsible for reviewing and approving transactions between the Company and Brookfield. But instead of ensuring that Brookfield paid a fair market price and control premium for the shares issued in the Private Placement, or proceeding with the planned Tender Offer which would not enrich Brookfield or increase its control, the Conflicts Committee approved a transaction that saw Brookfield enjoy a large discount to the market price for TerraForm's stock. Because the Conflicts Committee failed to protect TerraForm and its minority stockholders, Plaintiff turns to the Court as its last line of defense to seek a remedy for Brookfield's unfair self-dealing, says the complaint. Plaintiff has continuously owned shares of TerraForm Class A common stock since January 2018. Brookfield is an Ontario, Canada corporation with its principal executive offices in Toronto.[BN] The Plaintiff is represented by: Peter B. Andrews, Esq. Craig J. Springer, Esq. David M. Sborz, Esq. ANDREWS & SPRINGER LLC 3801 Kennett Pike Building C, Suite 305 Wilmington, DE 19807 Phone: (302) 504-4957 - and - Steven J. Purcell, Esq. Douglas E. Julie, Esq. Robert H. Lefkowitz, Esq. Kaitlyn T. Devenyns, Esq. PURCELL JULIE & LEFKOWITZ LLP 708 Third Avenue, 6th Floor New York, NY 10017 Phone: 212-725-1000 Facsimile: 212-725-0270 BUCKS COUNTY, PA: Jail Officials Question Inmate Lookup Tool ------------------------------------------------------------ Jo Ciavaglia, writing for The Intelligencer, reports that a top Bucks County corrections administrator questioned whether personal inmate information should be posted online before the county launched a publicly accessible website now at the center of the largest punitive damage award in Bucks County memory, according to legal documents in the federal class-action case. The information contained in court records and trial testimony appears to contradict the county's defense that its decision-makers didn't know that releasing the information violated state law. The new information comes as Bucks County's attorneys attempt to overturn the nearly $68 million damage award that county officials described as potentially financially crippling. So far, the county has spent $2 million in legal costs fighting the lawsuit filed in December 2012, according to records obtained through a Right to Know request. The final award could be reduced to between $46.6 million and $50.8 million based on eligible class members, according to recent court filings, but that is still more than double the $20 million the county anticipates it will have in its fund balance at the end of this year. The county's insurance will not cover the award. In an e-mail request for comment, county spokesman Larry King responded that Deputy Director of Corrections Clarke Fulton would not be giving any interviews related to this or any other county litigation. King added the county does not discuss legal strategies. Fulton, a previous captain of corrections administration, and former Director of Corrections Harris Gubernick, have been identified as the employees who authorized the expansion of the county's online inmate lookup tool in January 2011, according to court filings. Gubernick retired in February 2011 and now works as a corrections consultant. This news organization was unsuccessful in reaching Gubernick for comment after leaving multiple email and voicemail messages. Attorneys representing the county in July filed petitions asking the court to reconsider the jury award, a precursor to filing an appeal with the US Court of Appeals for the Third Circuit. Among the requests is for a new trial, citing grounds including that the jury verdict contradicted the "great weight of evidence," and the jury instructions on what constitutes "willfulness" were "erroneous and severely prejudicial." Bucks County disagreed with the court's interpretation that it willfully violated the Criminal History Records Information Act, known as CHRIA, through "reckless disregard or indifference." Officials have said the online tool was created to give victims a way to verify the whereabouts of defendants accused of crimes against them. The 1980 law bars non-law enforcement agencies, including county jails, from sharing criminal records with the public. It imposes a mandatory punitive penalty of $1,000 to $10,000 for each violation. The five-day jury trial in May stemmed from a lawsuit filed by Daryoush Taha, a Sicklerville, New Jersey, man whose personal information and mug shot appeared on the county's inmate lookup tool 11 years after his 1998 arrest was expunged. The lawsuit was given class-action status, allowing thousands of people incarcerated at the jail between 1938 and 2013 to join. Each booking record constituted an individual CHRIA violation, the jury ruled. The inmate lookup tool still exists, but in 2013, after the lawsuit was filed, the county removed virtually all personal information and mugshots. Conflicting testimony In trial arguments, county witnesses testified that prior to the Taha case, there were no legal opinions finding that inmate lookup tools violated CHRIA; that "sources" who vetted the website content saw no legal issues; and that other county inmate lookup tools posted the same or similar content. Yet trial transcripts and court documents show that Fulton, who was promoted in 2017, had concerns about posting FBI and State Identification numbers, unique identifiers assigned to individuals with a criminal record. Fulton testified that he knew through his Commonwealth Law Enforcement Assistance Network (CLEAN) training that FBI and SID numbers were confidential and could not be publicly released. He also testified that the county's JNET Terminal Agency Coordinator manual listed the two numbers as confidential. A copy of a 2008 meeting minutes for the county Information Services Department, which Fulton attended and the first version of the inmate lookup tool was discussed, noted that the Department of Corrections wanted SID and FBI numbers removed. They were not. At trial, Fulton testified that his concerns about posting those inmate numbers were satisfied after he consulted with other law enforcement sources. But he added that Pennsylvania State Police told him those inmate numbers might be protected under CHRIA, according to trial transcripts. A Jan. 24, 2011, email exchange between Fulton and Gubernick about the inmate lookup tool also suggests there were lingering questions, according to a copy of the email obtained by this news organization. "The Inmate Look-Up tool publishes the DOB, SID, FBI# and marital status should these be public records?" Fulton wrote. Fifteen minutes later, Gubernick replied: "Are they protected? I don't think so . . . just no SS#." Two minutes later, Fulton responded, "I remember talking about this year's (sic) ago. I guess I'm too conservative thinking when I see these numbers out there . . ." Gubernick testified during the trial that he had taken the same specialized training on CHRIA as Fulton, including what criminal history information could only be shared with other law enforcement agencies, transcripts show. He testified he had never read the law or the Pennsylvania Attorney General's Office CHRIA handbook. "If (Gubernick) had read the handbook and reached an erroneous decision, an honest mistake, we wouldn't be here," Taha lead attorney Theodore Schaer said in his closing argument, according to transcripts. "Same thing with Captain Fulton. He read the handbook in 2003 and hadn't read it again until this lawsuit, when he expressed his reservations, when he expressed his concerns, when they both did in their email. That's being indifferent to their obligations." The conflicting testimony is among the reasons Bucks County faces an uphill battle in overturning the damage award, according to one veteran legal scholar who specializes in class-action lawsuits. "There is zero chance of the county prevailing at this stage," said Ken Jacobsen, a professor specializing in class action and mass tort litigation at Temple University's Beasley School of Law who is familiar with the Taha class action suit. Jacobsen said it is unlikely the Third Circuit will reverse the lower court's interpretation of "willful" actions since nothing in the law suggests a willful violation requires the intent to cause harm. "The county is arguing a standard that appears nowhere in the statute, and it is difficult, if not impossible, to prove ‘subjective' misconduct,'" Jacobsen said. "You can probably do that by inference and circumstantial evidence, but I don't think that is what the legislature had in mind when it passed CHRIA and provided a private cause of action for aggrieved plaintiffs." He added the county's argument that the damage award is excessive also likely won't hold up in appeal. "The Third Circuit already has ruled previously in this case that, contrary to the county's argument, the Pennsylvania legislature saw fit to allow punitive damages under CHRIA, even in the absence of any actual injury or compensable harm to the named plaintiff or other class members, so I think that argument by the county is DOA on appeal," he said. [GN] BUNDOX RESTAURANT: Pech Sues Over Unpaid Minimum & Overtime Wages ----------------------------------------------------------------- LUIS PECH, individually and as a representative of other similarly situated aggrieved employees, Plaintiff v. THE BUNDOX RESTAURANT CORPORATION, CHERYL FALCHI AND AL FALCHI and DOES 1 through 100, Inclusive, Defendants, Case No. CGC-19-579289 (Cal. Super. Ct., San Francisco Cty., Sept. 17, 2019), alleges that the Defendants violated various provisions of the California Labor Code, including failure to: -- provide the class members off-duty meal and break periods; -- pay overtime for work worked over eight hours in a day or 40-hours in a week; -- furnish timely and accurate wage statements; -- pay earned wages upon discharge and failing to pay all wages due twice during each calendar month; -- keep accurate time records; and -- pay minimum wage because the class members who are being paid a minimum wage are not being paid overtime wages, and/or are not being provided uninterrupted meal and rest periods. The Defendants had a consistent policy of: (1) willfully failing to authorize and permit class members, including the Plaintiff, to take a 10-minute rest break for every four hours worked or greater fraction thereof; (2) permitting, encouraging, and/or requiring class members, including the Plaintiff, to work an excess of five hours per day without providing, authorizing, or permitting an off-duty meal break of at least one half hour and/or to work in excess of ten hours per day without authorizing or permitting a second off-duty meal beak of at least one half hour; (3) knowingly and intentionally failing to furnish accurate itemized wage statements showing total hours worked by the Plaintiff and Class Members; (4) not paying overtime wages for work over 40-hours in week; (5) not retaining the hours of time worked over three years; and (5), not paying the applicable minimum wage, says the complaint. Plaintiff Luis Pech was employed by the Defendants from August 2016 through November 2018 as a restaurant worker at the Waterfront Restaurant located at 7 Embarcadero in San Francisco. The Bundox Restaurant Corporation owns and operates the Waterfront Restaurant located at 7 The Embarcadero in San Francisco.[BN] The Plaintiff is represented by: Daniel R. Weltin, Esq. Mia Mattis, Esq. THE LAW OFFICES OF DANIEL WELTIN, P.C. 777 Davis Street, Suite 146 San Leandro, CA 94577 Telephone: 510-856-4421 Facsimile: 510-856-3624 E-mail: daniel@danielweltin.com mia@danielweltin.com C & L INSPECTION: Zwiefel Sues Over Unpaid Overtime Wages --------------------------------------------------------- TROY ZWIEFEL, individually and on behalf of all others similarly situated, Plaintiff v. C & L INSPECTION, LLC, Defendant, Case No. 2:19-cv-05193-JJT (D. Ariz., Sept. 17, 2019), is brought to recover unpaid overtime wages and other damages from C&L under the Fair Labor Standards Act. Troy Zwiefel and the other employees like him regularly worked for C&L in excess of 40 hours each week. But C&L never paid these employees overtime for the hours worked in excess of 40 hours in a single workweek, according to the complaint. Instead of paying overtime as required by the FLSA, C&L paid these employees a day rate with no overtime compensation. Plaintiff Zwiefel worked as a Welding Inspector for C&L as a W-2 employee from February 2018 until August 2018. C&L operates in the Pipeline & Utilities Inspection Industry.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew Dunlap, Esq. Taylor A. Jones, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713-352-1100 Facsimile: 713-352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com tjones@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com CABLEVISION SYSTEMS: Settlement in Consumer Suit Has Final Approval ------------------------------------------------------------------- Magistrate Judge A. Kathleen Tomlinson of the U.S. District Court for the Eastern District of New York has entered Final Approval Order and Judgment in the case, In re Cablevision Consumer Litigation. This Document Relates to: All Actions, Master File No. CV 10-4992 (JS) (AKT) (E.D. N.Y.) The Court, after notice to the Settlement Class, held a hearing on May 17, 2018. Having heard all persons properly appearing and requesting to be heard, having considered the papers submitted in support of the Class Action Settlement Agreement dated June 27, 2018, and the oral presentations of the counsel, having considered the applicable law, and having considered any objections properly made to the proposed settlement, the Court granted the Settlement at the conclusion of the Fairness Hearing on May 17, 2018. However, it reserved decision on the Class Counsels' Motion for Approval of Attorneys' Fees, Reimbursement of Litigation Expenses, and Service Payment to Class Representatives. That Motion was granted in the Memorandum and Order issued by the Court on Aug. 19, 2019. The Final Approval Order adopts and incorporates both the May 17, 2018 decision issued at the conclusion of the Fairness Hearing granting approval of the Settlement Agreement, as well as the Aug. 19, 2019 Memorandum and Order granting approval of the motion for attorneys' fees, expenses and service payments, the terms defined therein, and all exhibits thereto. Magistrate Judge Tomlinson further finds that there is no just reason for delay of the entry of the Final Approval Order and Judgment. She gave final approval to the settlement, including the award of attorneys' fees, as fair, reasonable, and adequate as to all Parties, and consistent and in compliance with all requirements of federal law as to, and in the best interests of, all the Parties and the members of the Settlement Class, and directs the Parties and their counsel to implement and consummate the Agreement in accordance with its terms and provisions. The Magistrate finds that final certification of the Settlement Class (including its Sub-Classes) is appropriate and that the Settlement Class Counsel and the Plaintiffs adequately represented the Settlement Class (including its Sub-Classes) for the purpose of entering into and implementing the settlement. She dismissed the Action (including all individual and class claims presented thereby, or that could have been presented thereby) on the merits, and with prejudice and without fees or costs, except as provided in the Final Approval Order and Judgment. The Magistrate approved the payment of attorneys' fees to the Settlement Class Counsel in the amount of $4.75 million, plus an award of $264,479.64 in costs and expenses, for a total Attorneys' Fee Award of $5,014,479.64. The Attorneys' Fee Award will be paid to Ralph M. Stone of Stone Bonner & Rocco, LLP as designee of the Settlement Class Counsel in accordance with the terms of the Agreement. The award of attorneys' fees will be allocated by Settlement Class Counsel in their discretion, among other Plaintiffs' counsel for their respective contributions in the prosecution of the litigation. The Attorneys' Fee Award will be paid no later than the later of: (i) 45 days after the date of the entry of the Final Approval Order and Judgment; (ii) 45 days after the resolution of any motion enumerated in Federal Rule of Appellate Procedure 4(a)(4)(A); or (iii) 30 days after the full and final resolution of any appeal of the Final Approval Order and Judgment, provided the Final Approval Order and Judgment has not been reversed or modified in any material respect as a result of any such motion or appeal. The Settlement Class Counsel are authorized to and will pay out of the Attorneys' Fee Award a service award of $1,500 each to the following Plaintiffs: Sean Ahearn, John Azzarello, Eric Bohm, John Brett, Angelo Brucchieri, William G. Canfield, Ralph Dudley, Arthur Finkel, Salvatore A. Gandolfo, Tina Green, Andrew Koplik, David Menoni, Theodore Pearlman, Vincent Pezzuti, Dorothy Rabsey, Martin J. Siegel, Stanley J. Somer and Marc Tell. The Magistrate approved the Opt-Out List (Exhibit A), and determines that the Opt-Out List is a complete list of Settlement Class members who have timely requested exclusion from the Settlement Class and, accordingly, will neither share in or be bound by the Final Approval Order and Judgment or Agreement. The Parties are authorized to agree to and adopt such an amendments to, and modifications and expansions of, the Agreement and all exhibits and amendments thereto as: (i) are consistent in all material respects with this Final Approval Order and Judgment; and (ii) do not limit the rights of the Settlement Class members. The Magistrate finds that there is no just reason to delay the entry of the Judgment as a final judgment in the action. Accordingly, she directed the Clerk of the Court to enter the Final Judgment in the Action. A full-text copy of the Court's Aug. 21, 2019 Final Approval Order and Judgment is available at https://is.gd/jQgZq7 from Leagle.com. Theodore Pearlman, individually and on behalf of all others similarly situated, Plaintiff, represented by Carol S. Shahmoon -- cshahmoon@shahmoonkeller.com -- CSS Legal Group PLLC, Joseph Gentile -- joseph@sarrafgentile.com -- Sarraf Gentile LLP, Justin M. Klein -- justin@marksklein.com -- Marks & Klein LLP, Lee S. Shalov, Shalov Stone Bonner & Rocco LLP, Ralph M. Stone, Stone Law Group PLLC, Ronen Sarraf -- ronen@sarrafgentile.com -- Sarraf Gentile LLP & Todd J. Krouner, Law Offices of Todd J. Krouner, P.C. Marc Tell, individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph Gentile, Sarraf Gentile LLP, Justin M. Klein, Marks & Klein LLP, Lee S. Shalov, Shalov Stone Bonner & Rocco LLP, Ralph M. Stone, Stone Law Group PLLC, Ronen Sarraf, Sarraf Gentile LLP & Todd J. Krouner, Law Offices of Todd J. Krouner, P.C. Julia Gallo, individually and on behalf of all others similarly situated & Dorothy Rabsey, individually and on behalf of all others similarly situated, Plaintiffs, represented by Todd J. Krouner, Law Offices of Todd J. Krouner, P.C., Joseph Gentile, Sarraf Gentile LLP, Justin M. Klein, Marks & Klein LLP, Lee S. Shalov, Shalov Stone Bonner & Rocco LLP, Ralph M. Stone, Stone Law Group PLLC, Ronen Sarraf, Sarraf Gentile LLP & Scott Jaller Koplik, Law Office of Todd J. Krouner. John Azzarella, Plaintiff, represented by Todd J. Krouner, Law Offices of Todd J. Krouner, P.C. & Ralph M. Stone, Stone Law Group PLLC. Todd Krouner, Plaintiff, pro se. Ralph Dudley, Plaintiff, pro se. Cablevision Systems Corporation, Defendant, represented by Robert A. Vort -- rvort@pearcelaw1.com -- Court Plaza North, Thomas H. Golden, Wilkie Farr & Gallagher, Andrew M. Genser, Kirkland & Ellis, Dmitriy Tishyevich -- dmitriy.tishyevich@kirkland.com -- Kirkland & Ellis LLP, pro hac vice & Jonathan F. Putnam -- jonathan.putnam@kirkland.com -- Kirkland & Ellis LLP. CSC Holdings, LLC, Consol Defendant, represented by Thomas H. Golden, Wilkie Farr & Gallagher, Andrew M. Genser, Kirkland & Ellis, Dmitriy Tishyevich, Kirkland & Ellis LLP, pro hac vice & Jonathan F. Putnam, Kirkland & Ellis LLP. Brian T. Foley & Edward W. Wynne, Objectors, represented by Thomas Arthur Dickerson, Thomas A. Dickerson. Arnold H. Belgraier, Objector, represented by Donovan Bezer, Law Office of Donovan Bezer & Thomas Arthur Dickerson, Thomas A. Dickerson. Simon Bezer & Christine Bezer, Objectors, represented by Donovan Bezer, Law Office of Donovan Bezer. CALIFORNIA CRYOBANK: Vidiksis et al Sue over Donor Sperm Storage ---------------------------------------------------------------- RENEE VIDIKSIS AND MEGAN VIDIKSIS, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED INDIVIDUALS, the Plaintiffs, vs. CALIFORNIA CRYOBANK LLC, the Defendants, Case No. 2:19-cv-07968 (C.D. Cal., Sept., 13, 2019), seeks to recover monies Plaintiffs paid to MCB to purchase donor sperm and to store the donor sperm. The Plaintiffs also seek to recover monetary damages for the lost opportunity to conceive a blood sibling due to California Cryobank, Inc.'s interference. People who purchase donor sperm often purchase multiple vials to ensure that if they are able to conceive a child and carry it to term, they will have the opportunity to conceive a second (or third) child who is biologically related. This is known as a blood sibling. California Cryobank sells the idea of this dream. But, as to Plaintiffs and the putative class, California Cryobank has interfered with many of those dreams becoming a reality, the lawsuit says. The Plaintiffs purchased additional vials of sperm after the birth of their child because they wanted to later conceive a second child, and it was extremely important to them that their children be genetically related. On May 30, 2019, Plaintiffs notified MCB of their intent to continue the MCB Storage Agreement and paid a full year of storage fees through 2020. That same day, the Plaintiffs inquired of MCB as to the procedure to have one of their vials shipped to their fertility clinic the following week. On June 6, 2019, the Donor Program Director of California Cryobank -- not MCB -- responded and advised Plaintiffs that California Cryobank would not release the vials in Plaintiffs' MCB storage account. To date, Plaintiffs are unable to access the four vials of MCB Donor 265 sperm that they contracted with MCB to store at MCB, not California Cryobank. The Plaintiffs did not authorize or instruct MCB to transfer any of their specimens to California Cryobank. The Plaintiffs did not also authorize California Cryobank to take possession, custody or control of their vials of donor sperm in storage at MCB. MCB did not terminate the MCB Storage Agreement with Plaintiffs and the other members of the putative class, the lawsuit says.[BN] Attorneys for the Plaintiffs are: Kristy M. Arevalo, Esq. MCCUNE WRIGHT AREVALO, LLP 3281 East Guasti Road, Suite 100 Ontario, CA 91761 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 - and - R. Dean Gresham, Esq. L. Kirstine Rogers, Esq. 12720 Hillcrest Rd., Suite 1045 Dallas, TX 75230 Telephone: (972) 387-4040 Facsimile: (972) 387-4041 E-mail: dean@stecklerlaw.com krogers@stecklerlaw.com CANADA: Submissions Continue in Class-Action Against Military ------------------------------------------------------------- The Chronicle Herald reports that submissions continued to be heard September 20 on the second day of a two-day hearing to approve a proposed $900 million settlement of a military sexual misconduct class action. The hearing is taking place at the Federal Court in Ottawa. Halifax law firm Wagners filed a national class action in November 2016 on behalf of representative plaintiff Glynis Rogers, a former member of the Canadian Armed Forces. Rogers alleged she experienced systemic sexual misconduct and sexual assault during her time in the military. Rogers was at the hearing September 20 with lawyers from Wagners, four other firms from across Canada forming the class counsel consortium, and other representative plaintiffs. The Federal Court justice hearing the submissions intends to reserve his decision on whether he approves the proposed settlement as being fair and reasonable and in the best interest of the class, Wagners said in a release. The proposed settlement applies to current and former members of the Canadian Armed Forces, current and former employees of Department of National Defence, and staff of the Non-Public Funds, Canadian Forces who have experienced sexual misconduct. The proposed settlement will provide compensation to eligible class members for sexual harassment, sexual assault, and discrimination on the basis of sex, gender, gender identity or sexual orientation. If approved, the award of $900 million will be distributed to eligible class members. The range of compensation is estimated to be between $5,000 and a maximum of about $178,000, depending on the number of claims that come forward and individual circumstances of class members. The $900 million does not include the cost of legal fees and the costs of administering the settlement, which is estimated to take place over approximately two years to give class members time to prepare their claims and avail themselves of the supports being offered. The judge is also being asked to approve payment of legal fees. In addition to compensation, there are several non-monetary measures being implemented if the settlement is approved. These include changes to Veterans Affairs Canada's policies on assessing claims arising from sexual misconduct, including eliminating the need for corroborative evidence. Also, a new policy would mean that no claim for disability will be rejected purely on the basis that the event in question occurred off Forces property or where attendance by the class member was optional. There would also be changes to the definition of sexual harassment and increased support to survivors of sexual misconduct. "Attending the settlement approval hearing was a bit surreal. I am glad class members had the opportunity to speak and tell their stories ...," Rogers said in the release. "I hope this will provide closure for many people. I recognize that transforming the culture in an organization as large as the CAF will take time, but I am optimistic the restorative engagement programs established by this settlement will stimulate this change." Ray Wagner, Esq. -- classaction@wagners.co -- of Wagners said in the release that he admires "the courage of Glynis Rogers in coming forward to publicly tell her story for the sake of advancing institutional change for others. This courage has helped contribute to a settlement that achieves more than any legal victory in a courtroom ever could." [GN] CARBONITE INC: Kirby McInerney Files Class Action Lawsuit --------------------------------------------------------- The law firm of Kirby McInerney LLP reminds investors that a class action lawsuit has been filed in the U.S. District Court of Massachusetts on behalf of those who acquired Carbonite, Inc. (NASDAQ: CARB) securities during the period from February 7, 2019 to July 25, 2019 (the "Class Period"). Investors have until September 30, 2019 to apply to the Court to be appointed as lead plaintiff in the lawsuit. The lawsuit alleges that the Company failed to disclose that: (i) Carbonite's Server Backup VM Edition was of poor quality and technologically flawed; (ii) Carbonite was receiving poor reviews and complaints from customers about the Server Backup VM Edition; and (iii) the poor quality and technological flaws of the Server Backup VM Edition were acting as a "disruptive" factor throughout the Carbonite salesforce and keeping that sales organization from closing opportunistically on several larger deals during fiscal 2019. On July 25, 2019, after the market closed, the Company reported revenue of $121.5 million for second quarter 2019 due to "challenges in parts of [its] data protection business." Moreover, the Company reduced its full year revenue guidance from a range of $457 to $471 million, to a range of $443.5 to $448.5 million. The Company's Chief Executive Officer, Mohamad Ali, resigned. On this news, shares of Carbonite fell $5.89, or 24.6%, to close at $18.01 on July 26, 2019. If you acquired Carbonite securities, have information, or would like to learn more about these claims, please contact Thomas W. Elrod of Kirby McInerney LLP at 212-371-6600, by email at investigations@kmllp.com, or by filling out this contact form, to discuss your rights or interests with respect to these matters without any cost to you. Kirby McInerney LLP is a New York-based plaintiffs' law firm concentrating in securities, antitrust, and whistleblower litigation. The firm's efforts on behalf of shareholders in securities litigation have resulted in recoveries totaling billions of dollars. Additional information about the firm can be found at Kirby McInerney LLP's website: www.kmllp.com. [GN] CAVALIA (USA) INC: Fails to Properly Pay Workers, Eaton Suit Says ----------------------------------------------------------------- Kimberly Eaton, individually, and on behalf of others similarly situated and aggrieved, Plaintiff, v. CAVALIA (USA) INC., a Vermont Corporation; CAVALIA COMMUNICATIONS, INC., a California Corporation; NORMAND LATOURELLE, a natural individual; and DOES 1 through 50, inclusive, Defendants, Case No. CGC-19-579421 (Cal. Super. Ct., San Francisco Cty., Sept. 20, 2019) is a class and representative action case brought by Plaintiff on behalf of herself and all others similarly situated and aggrieved current and former non-exepmt employees against Defendants to remedy Defendants' illegal wage payment and employment policies and practices during the relevant statutory period, for which Plaintiff seeks damages, restitution, penalties, injunctive relief, interest, attorneys' fees and costs, and all other legal and equitable remedies deemed just and proper under California Law. The Defendants acted their policies and practices of not paying Plaintiff and Class Members all wages earned and due, through methods and schemes which include, but are not limited to, failing to pay all wages; failing to provide rest and meal periods or premium wage payments in lieu thereof; failing to properly maintain records, failing to provide accurate itemized statements for each pay periods; failing to properly reimburse Plaintiff and Class Members for necessary expenditures; and failing to timely pay all wages earned and due at the time of discharge or quitting, in violation of the California Labor Code and applicable California Industrial Welfare Commission Wage Orders, says the complaint. Plaintiff was employed by Defendants around 2016 to early 2017 in Southern California. Cavalia (USA) Inc. is a corporation formed and existing under the laws of the State of Vermont.[BN] The Plaintiff is represented by: Taras Kick, Esq. Roy K. Suh, Esq. Daniel J. Bass, Esq. THE KICK LAW FIRM, APC 815 Moraga Drive Los Angeles, CA 90049 Phone: (310) 395-2988 Facsimile: (310) 395-2088 Email: taras@kicklawfirm.com roy@kicklawfirm.com daniel@kicklawfirm.com CHARTER COMMUNICATIONS: Nakai Seeks Redress From TCPA Violation --------------------------------------------------------------- RICHARD NAKAI, individually and on behalf of all others similarly situated, Plaintiff v. CHARTER COMMUNICATIONS, INC., d/b/a SPECTRUM, a Delaware corporation, Defendant, Case No. 2:19-cv-08035 (C.D. Cal., Sept. 17, 2019), is a class action complaint seeking to: (1) stop the Defendant's practice of placing calls using an "automatic telephone dialing system" ("ATDS") and/or using "an artificial or prerecorded voice" to the telephones of consumers nationwide without their prior express consent; and (2) obtain redress for all persons injured by Defendant's conduct under The Telephone Consumer Protection Act ("TCPA") and its implementing regulations. In an effort to obtain leads for its services, Spectrum made (or directed to be made on its behalf) autodialed and/or prerecorded calls to the telephones of the Plaintiff and other members of the putative class without first obtaining express consent to do so, all in violation of the TCPA. The TCPA was enacted to protect consumers from unauthorized calls exactly like those alleged in this Complaint--autodialed and/or prerecorded calls placed to cellphone numbers without each consumer's prior express written consent. By making the telephone calls at issue in this Complaint, the Defendant caused the Plaintiff and the members of the Class actual harm and cognizable legal injury, the Plaintiff alleges. This includes the aggravation and nuisance and invasions of privacy that result from the receipt of such calls, in addition to a loss of value realized for the monies consumers paid to their wireless carriers for the receipt of such calls. Furthermore, the calls interfered with the Plaintiff's and the other Class members' use and enjoyment of their cellphones, including the related data, software, and hardware components, says the complaint. Plaintiff Nakai is a natural person and a citizen of the State of California. Charter Communications Inc. d/b/a Spectrum is a corporation organized in and existing under the laws of the State of Delaware, with 10th its principal place of business located at 400 Atlantic Street, in Stamford, Connecticut.[BN] The Plaintiff is represented by: Aaron D. Aftergood, Esq. THE AFTERGOOD LAW FIRM 1880 Century Park East, Suite 200 Los Angeles, CA 90067 Telephone: (310) 550-5221 Facsimile: (310) 496-2840 E-mail: aaron@aftergoodesq.com - and - Steven L. Woodrow, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Avenue, Suite 300 Denver, CO 80210 Telephone: (720) 213-0675 Facsimile: (303) 927-0809 E-mail: swoodrow@woodrowpeluso.com CHECKERS DRIVE-IN: To Pay $3 Million to Settle Spam Texting Suit ---------------------------------------------------------------- Courthouse News Service reports that Checkers Drive-In Restaurants will pay more than $3 million, which includes $1 million in attorney’s fees, to settle a federal class action accusing it of sending spam text messages. CHICAGO BRIDGE: Gotham Securities Suit's Section 18 Claim Dismissed ------------------------------------------------------------------- In the cases, GOTHAM DIVERSIFIED NEUTRAL MASTER FUND, LP, et al., Plaintiffs, v. CHICAGO BRIDGE & IRON COMPANY N.V., et al., Defendants.; and APPALOOSA INVESTMENT L.P.I., et al., Plaintiffs, v. CHICAGO BRIDGE & IRON COMPANY N.V., et al., Defendants, Case Nos. 18 Civ. 9927 (LGS), 18 Civ. 9928 (LGS) (S.D. N.Y.), Judge Lorna G. Schofield of the U.S. District Court for the Southern District of New York denied in part and granted in part the Defendants' motion to dismiss the Section 18 and common law fraud claims pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs Gotham and Appaloosa Investment L.P.I., et al., brought the action against Defendants Chicago Bridge & Iron ("CBI"), Philip K. Asherman, Ronald A. Ballschmiede and Westley S. Stockton, alleging violations of Sections 18, 10(b) and 20(a) of the Securities Exchange Act of 1934 and common law fraud. Defendant CBI is a global engineering, procurement and construction company headquartered in the Hague, Netherlands. At all relevant times, Defendant Asherman was CBI's CEO, Defendant Ballschmiede was CBI's CFO and Executive VP and Defendant Stockton was its Chief Accounting Officer. The Plaintiffs are investment funds that purchased CBI common stock prior to Jan. 29, 2015. In July 2012, CBI agreed to purchase the Shaw Group for approximately $3.3 billion, funded in part with $1.9 billion in debt financing. The sale closed in February 2013. Shaw's subsidiary, Stone & Webster, had contracts to build and fabricate the nuclear power plants in Georgia ("Vogtle Plant") and South Carolina ("V.C. Summer Plant"). These contracts ("EPC Agreements") provided that Stone & Webster would receive a fixed price for its services. Stone & Webster was entitled to a change order, resulting in additional compensation, above the contract price, only in specified circumstances. Shaw was incapable of meeting the demands of nuclear construction because its main fabrication facility at Lake Charles, Louisiana, experienced numerous stop work orders. Because of problems at the Lake Charles facility, CBI could not track and ship construction materials properly, leading to cost increases and delays at the Nuclear Projects. Under the fixed-price EPC Agreements, CBI bore the risk of delays and other construction problems. CBI allegedly made material misstatements and omissions about the Nuclear Projects' repeated delays, cost overruns, resulting deterioration in profitability and GAAP compliance in its public filings with the SEC, including its 2013 Third Quarter Report, 2013 Annual Report, 2014 First Quarter Report, 2014 Second Quarter Report, and 2014 Third Quarter Report and related press releases and earnings calls. Plaintiffs' investment team read, reviewed and relied on these filings and continued to purchase CBI common stock through January 29, 2015. On Oct. 27, 2015, CBI announced it would take a $1 billion loss on the sale of its Stone & Webster unit to Westinghouse in exchange for a release of liabilities for delays plaguing the Nuclear Projects. On April 28, 2016, Westinghouse delivered its post-closing accounting true-up to CBI and claimed that CBI owed Westinghouse $2.1 billion in disputed liabilities, noting that CBI's accounting for liability it faced for the Nuclear Projects "was not recorded in accordance with GAAP" and that CBI "should have recorded a reverse liability of hundreds of millions of dollars for losses." On July 21, 2016, in response to Westinghouse's demand for $2.1 billion, CBI filed a complaint in the Delaware Chancery Court barring Westinghouse from making a claim for the $2.1 billion. In the lawsuit, CBI admitted that, as early as February 2015, CBI had begun negotiating a "quitclaim deal" that would relieve it from the liabilities associated with the Nuclear Projects. In June 2017, the Supreme Court of Delaware reversed the Court of Chancery and concluded that Westinghouse had waived its claim against CBI under the sale agreement. On March 31, 2017, Westinghouse filed for Chapter 11 bankruptcy as a result of the Nuclear Projects' liabilities. On March 2, 2017, purchasers of CBI stock commenced a putative class action against the Defendants, alleging violations of Sections 10(b) and 20(a) of the Exchange Act. The Defendants moved to dismiss, and on May 24, 2019, the Court denied the Defendants' motion. The Defendants move to dismiss the Section 18 and common law fraud claims. Judge Schofield holds that the Section 18 claim is untimely. The Complaint alleges that the Section 18 claim is not time-barred because the timely filing of the putative class action against the Defendants on March 2, 2017, tolled the two-year statute of limitations applicable to those claims. Also, the Complaint alleges a claim under Section 18(a), but the class action asserts only violations of Section 10(b) and Section 20(a). Because the legal standards for proving a Section 18 violation differ significantly from those for proving a Section 10(b) violation, a 10(b) class action does not necessarily put the Defendants on notice of a Section 18 claim. Accordingly, the class action tolling does not apply, and the Section 18 claim is dismissed. The Complaint states a claim for common law fraud. The Second Circuit has not yet determined whether Rule 9(b)'s heightened pleading requirement applies to allegations of reliance in connection with a common law fraud claim. Courts in the District have held that a plaintiff asserting such a claim must allege with particularity that it actually relied upon the defendant's supposed misstatements. The Judge holds that the Complaint satisfies this reliance requirement. The Complaint identifies "specific transactions"-- the Plaintiff's investments in CBI common stock -- as well as specific reports and statements on which they allegedly relied in entering into those transactions. It makes separate factual allegations in support of the Plaintiffs' actual reliance, alleges reliance on multiple public filings and statements and alleges the purchase of securities from April 24, 2014 to Jan. 29, 2015, in reliance on those misstatements. Accordingly the motion to dismiss is denied as to the common law fraud claim. For the foregoing reasons, Judge Schofield granted the Defendants' partial motion to dismiss as to the Section 18 claim, and denied as to the common law fraud claim. A full-text copy of the Court's Aug. 23, 2019 Opinion and Order is available at https://is.gd/47YRa1 from Leagle.com. Gotham Diversified Neutral Master Fund, LP, Gotham Enhanced Long Master Fund, LP, Gotham Customized Strategies II, LP, Gotham Targeted Neutral Master Fund, LP, Gotham Penguin Fund, LP, Gotham Absolute Return Fund, a series of Fundvantage Trust, Gotham Enhanced Return Fund, a series of Fundvantage Trust, Gotham Neutral Fund, a series of Fundvantage Trust, Gotham Hedged Value Strategies 115/65 (Master), L.P. & Gotham Hedged Value Strategies 140/40 (Master), L.P., Plaintiffs, represented by Brandon Michael Fierro -- bfierro@lowenstein.com -- Lowenstein Sandler LLP, Jennifer Ann Randolph -- jrandolph@lowenstein.com -- Lowenstein Sandler LLP, Richard A. Bodnar -- rbodnar@lowenstein.com -- Lowenstein Sandler LLP, Thomas E. Redburn, Jr. -- tredburn@lowenstein.com -- Lowenstein Sandler LLP & Lawrence M. Rolnick -- lrolnick@lowenstein.com -- Lowenstein Sandler LLP. Chicago Bridge & Iron Company N.V., Philip K. Asherman & Westley S. Stockton, Defendants, represented by Amy P. Hefley -- amy.hefley@bakerbotts.com -- Baker Botts LLP, Brian C. Kerr -- brian.kerr@bakerbotts.com -- Baker Botts L.L.P., David D. Sterling -- david.sterling@bakerbotts.com -- Baker Botts, L.L.P., Rebeca Aizpuru Huddle -- rebeca.huddle@bakerbotts.com -- Baker Botts LLP & Sarah Coble -- sarah.coble@bakerbotts.com -- Baker Botts LLP. Ronald A. Ballschmiede, Defendant, represented by James Russell Leahy, Greenberg Traurig, Robert Allen Horowitz, Greenberg Traurig, LLP, David D. Sterling, Baker Botts, L.L.P. & Nicole Shirley Bakare, Greenberg Traurig. COMPASS GROUP: Bryant Wants to Stop Illegal Use of Biometric Data ----------------------------------------------------------------- Christine Bryant, individually and on behalf of all others similarly situated, Plaintiff v. Compass Group USA, Inc., Defendant, Case 2019CH09818 (Ill. Cir., August 23, 2019), seeks an injunction requiring the Defendants to cease all unlawful activity under the Illinois Biometric Information Privacy Act related to the capture, collection, storage and use of biometrics. Compass is a food service company that sells snacks, meals, and beverages through vending machines. The Company currently has vending machines in the company cafeteria where the Plaintiff works. The Plaintiff says she regularly purchased items from the vending machines by scanning her fingerprint in the vending machines and also scanned her fingerprint whenever she added money to a card provided by Compass to fund her purchases.[BN] The Plaintiff is represented by: Douglas M. Werman, Esq. Maureen A. Salas, Esq. Sarah J. Arendt, Esq. Zachary C. Flowerree, Esq. WERMAN SALAS P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com msalas@flsalaw.com zflowerree@flsalaw.com sarendt@flsalaw.com CONTINENTAL RESTAURANTS: Harris Sues Over Unpaid Compensation ------------------------------------------------------------- JESSICA HARRIS on behalf herself and all others similarly situated, Plaintiff, v. CONTINENTAL RESTAURANTS, INC; CONTINENTAL FOODS, INC.; PRICELESS FOODS, INC.; LUBNA FOODS, INC.; TIMELESS STAFFING SERVICES, LLC; and DENTEX RESTAURANTS, LLC, Defendants, Case No. 4:19-cv-00685 (E.D. Tex., Sept. 21, 2019) is a Complaint filed against Defendants for violations of the Fair Labor Standards Act. As part of the payment scheme Defendants used to compensate Plaintiff and Collective Members, Defendants paid Plaintiff and Collective Members a subminimum hourly wage, ostensibly attempting to rely on a tip credit as a defense to the payment of the full minimum wage. The use of the tip credit results in huge savings to Defendants because Defendants only compensate Plaintiff and Collective Members at a significantly reduced hourly wage of $2.13, with the balance of their wages coming from customers in the form of tips. The Defendants then purported to rely on the tips Plaintiff earned by applying a tip credit of at least $5.12 per hour to bring Plaintiff's effective rate of pay, with tips included, up to the required minimum wage of $7.25. However, Plaintiff and the Collective Members have been victimized by Defendants' payment scheme that violates the FLSA and prevents Defendants from utilizing the tip credit as an affirmative defense to the payment of the full minimum wage. The Defendants' illegal practices in violation of the FLSA have resulted in a forfeiture of the "tip credit." Consequently, Defendants is liable to Plaintiff and Collective Members for the full minimum wage for every hour worked during the statutory time period plus all other statutory damages provided for under the FLSA, says the complaint. Plaintiff was employed by Defendants to work as a server at three of Defendants' Denny's restaurants located in Texas from approximately January of 2015 until August 22, 2019. Defendants, collectively known as The Kaizen Group, operate a chain of Denny's restaurants with several locations across Texas.[BN] The Plaintiff is represented by: Drew N. Herrmann, Esq. HERRMANN LAW, PLLC 801 Cherry St., Suite 2365 Fort Worth, TX 76102 Phone: 817-479-9229 Fax: 817-887-1878 Email: drew@herrmannlaw.com pamela@herrmannlaw.com COPART, INC: Cohen Sues over Fraudulent Vehicle Ads --------------------------------------------------- Arik Cohen, On behalf of himself and all others similarly situated, the Plaintiff, vs. COPART, INC.; and Does 1 through 100, inclusive, the Defendants, Case No. 19STCV32207 (Cal. Super., Sept. 11, 2019), alleges that Defendant engages in an unlawful scheme whereby it intentionally misleads consumers into making bids on and purchases of the vehicles and automobiles by knowingly and fraudulently misrepresenting the condition of the automobiles through its advertising, in violation of California Business & Professions Code, and the Consumer Legal Remedies Act. The Defendant's conduct has injured thousands of consumers, both in California and nationwide, and violates California’s consumer protection laws. Accordingly, the Plaintiff individually and on behalf of a Class of similarly situated consumers seeks injunctive relief, restitution and monetary damages. The Defendant is one of, if not the largest automotive auction house in the United States.[BN] Attorneys for the Plaintiff are: Mitch Kalcheim, Esq. LEGAL GP 725 South Figueroa Street, Suite 1750 Los Angeles, CA 90017 Telephone: (213) 955-7142 Facsimile: (213) 955-7146 DALLAS COUNTY, TX: Dismissal of Denmark Prisoners Suit Recommended ------------------------------------------------------------------ In the case, CLINTRELL DENMARK, Plaintiff, v. DALLAS COUNTY JAIL FACILITY, Defendant, Case No. 3:19-cv-01514-C (BT) (N.D. Tex.), Magistrate Judge Rebecca Rutherford of the U.S. District Court for the Northern District of Texas, Dallas Division, recommended that the Court should dismiss the Plaintiff's complaint without prejudice for want of prosecution under Fed. R. Civ. P. 41(b). Before the Court is the Plaintiff's pro se civil rights case. The Plaintiff, an inmate in the Dallas County jail, and others filed a putative class action pursuant to 42 U.S.C. Section 1983, alleging the Dallas County jail is violating their rights by segregating inmates into housing units based on race. The Court determined that the Plaintiff and the other inmates should not be allowed to proceed as a class and ordered that the case be severed into individual actions to allow each inmate to represent himself. She further ordered each individual Plaintiff to pay a filing fee of $400 or file a motion to proceed in forma pauperis. The Plaintiff did not pay the filing fee; nor did he file a motion to proceed in forma pauperis. On June 25, 2019, the Court sent the Plaintiff a notice of deficiency reminding him to pay the filing fee or a file motion to proceed in forma pauperis. It informed him that failure to cure the deficiency within 30 days would result in a recommendation that his complaint be dismissed. More than 30 days have passed, and the Plaintiff still has not paid the filing fee or filed a motion to proceed in forma pauperis. Magistrate Judge Rutherford holds that Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. The Court has issued a deficiency notice to the Plaintiff advising him that he must pay the filing fee or file a motion to proceed in forma pauperis. However, he has failed to respond to the Court's order. The litigation cannot proceed until the Plaintiff complies with the Court's order and either pays the filing fee or files a motion to proceed in forma pauperis. Accordingly, the complaint should be dismissed for want of prosecution under Fed. R. Civ. P. 41(b). A copy of the Report and Recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of the report and recommendation must file specific written objections within 14 days after being served with a copy. A full-text copy of the Court's Aug. 21, 2019 Findings, Conclusions, & Recommendation is available at https://is.gd/IIpExI from Leagle.com. Clintrell Denmark, Plaintiff, pro se. DALLAS COUNTY, TX: Dismissal of Jackson Prisoners Suit Recommended ------------------------------------------------------------------ In the case, CAMERON JACKSON, Plaintiff, v. DALLAS COUNTY JAIL FACILITY, Defendant, Case No. 3:19-cv-01504-C (BT) (N.D. Tex.), Magistrate Judge Rebecca Rutherford of the U.S. District Court for the Northern District of Texas, Dallas Division, recommended that the Court should dismiss the Plaintiff's complaint without prejudice for want of prosecution under Fed. R. Civ. P. 41(b). Before the Court is the Plaintiff's pro se civil rights case. The Plaintiff, an inmate in the Dallas County jail, and others filed a putative class action pursuant to 42 U.S.C. Section 1983, alleging the Dallas County jail is violating their rights by segregating inmates into housing units based on race. The Court determined that the Plaintiff and the other inmates should not be allowed to proceed as a class and ordered that the case be severed into individual actions to allow each inmate to represent himself. She further ordered each individual Plaintiff to pay a filing fee of $400 or file a motion to proceed in forma pauperis. The Plaintiff did not pay the filing fee; nor did he file a motion to proceed in forma pauperis. On June 25, 2019, the Court sent the Plaintiff a notice of deficiency reminding him to pay the filing fee or a file motion to proceed in forma pauperis. It informed him that failure to cure the deficiency within 30 days would result in a recommendation that his complaint be dismissed. More than 30 days have passed, and the Plaintiff still has not paid the filing fee or filed a motion to proceed in forma pauperis. Magistrate Judge Rutherford holds that Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. The Court has issued a deficiency notice to the Plaintiff advising him that he must pay the filing fee or file a motion to proceed in forma pauperis. However, he has failed to respond to the Court's order. The litigation cannot proceed until the Plaintiff complies with the Court's order and either pays the filing fee or files a motion to proceed in forma pauperis. Accordingly, the complaint should be dismissed for want of prosecution under Fed. R. Civ. P. 41(b). A copy of the Report and Recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of the report and recommendation must file specific written objections within 14 days after being served with a copy. A full-text copy of the Court's Aug. 21, 2019 Findings, Conclusions, & Recommendation is available at https://is.gd/bcBKUp from Leagle.com. Cameron Jackson, Plaintiff, pro se. DALLAS COUNTY, TX: Dismissal of Washington Prisoners Suit Endorsed ------------------------------------------------------------------ In the case, DEVANTE WASHINGTON, Plaintiff, v. DALLAS COUNTY JAIL FACILITY, Defendant, Case No. 3:19-cv-01505-C (BT) (BT) (N.D. Tex.), Magistrate Judge Rebecca Rutherford of the U.S. District Court for the Northern District of Texas, Dallas Division, recommended that the Court should dismiss the Plaintiff's complaint without prejudice for want of prosecution under Fed. R. Civ. P. 41(b). Before the Court is the Plaintiff's pro se civil rights case. The Plaintiff, an inmate in the Dallas County jail, and others filed a putative class action pursuant to 42 U.S.C. Section 1983, alleging the Dallas County jail is violating their rights by segregating inmates into housing units based on race. The Court determined that the Plaintiff and the other inmates should not be allowed to proceed as a class and ordered that the case be severed into individual actions to allow each inmate to represent himself. She further ordered each individual Plaintiff to pay a filing fee of $400 or file a motion to proceed in forma pauperis. The Plaintiff did not pay the filing fee; nor did he file a motion to proceed in forma pauperis. On June 25, 2019, the Court sent the Plaintiff a notice of deficiency reminding him to pay the filing fee or a file motion to proceed in forma pauperis. It informed him that failure to cure the deficiency within 30 days would result in a recommendation that his complaint be dismissed. More than 30 days have passed, and the Plaintiff still has not paid the filing fee or filed a motion to proceed in forma pauperis. Magistrate Judge Rutherford holds that Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. The Court has issued a deficiency notice to the Plaintiff advising him that he must pay the filing fee or file a motion to proceed in forma pauperis. However, he has failed to respond to the Court's order. The litigation cannot proceed until the Plaintiff complies with the Court's order and either pays the filing fee or files a motion to proceed in forma pauperis. Accordingly, the complaint should be dismissed for want of prosecution under Fed. R. Civ. P. 41(b). A copy of the Report and Recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of the report and recommendation must file specific written objections within 14 days after being served with a copy. A full-text copy of the Court's Aug. 21, 2019 Findings, Conclusions, & Recommendation is available at https://is.gd/fFF287 from Leagle.com. Devante Washington, Plaintiff, pro se. DEVELOPMENTAL PATHWAYS: Court Narrows Claims in FLSA Suit --------------------------------------------------------- The United States District Court for the District of Colorado issued an Order granting in part and denying in part Defendants' Motion for Summary Judgment in the case captioned FLAVIE BONDEH BAGOUE, and those similarly situated, Plaintiff, v. DEVELOPMENTAL PATHWAYS, INC. and CONTINUUM OF COLORADO, INC., Defendants. Civil Action No. 16-cv-01804-PAB-NRN. (D.Colo.). Plaintiff Flavie Bondeh Bagoue worked for defendants for approximately twelve total years. Plaintiff alleges that defendants failed to adequately compensate plaintiff for certain categories of time including time spent communicating with other workers at the beginning and end of her shifts pre and post-shift time sleep time, which was regularly interrupted such that plaintiff did not usually get five hours of continuous and uninterrupted sleep and extra time worked as a result of the change to daylight savings time. LEGAL STANDARD Summary judgment is warranted under Federal Rule of Civil Procedure 56 when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A disputed fact is material if under the relevant substantive law it is essential to proper disposition of the claim. Only disputes over material facts can create a genuine issue for trial and preclude summary judgment. An issue is genuine if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Plaintiff's First Claim - State Law Plaintiff moves for partial summary judgment against Continuum on her claim for overtime for working more than twelve hours in a given day on the basis that Continuum is covered by the Colorado Minimum Wage Order (Wage Order). Defendants move for summary judgment on the entirety of plaintiff's First Claim, arguing that they are not covered by the Wage Order. Application of the Colorado Minimum Wage Order The Wage Order regulates wages, hours, working conditions and procedures for certain employers and employees in four industries: (A) Retail and Service (B) Commercial Support Service (C) Food and Beverage an (D) Health and Medical. Plaintiff cannot recover on her First Claim under the Wage Order if defendants do not fall into one of the covered industries. For the purposes of the instant motion, the Court considers whether defendants are covered by the Wage Order because they are in either (a) the Health and Medical industry or (b) the Retail and Service industry. Health and Medical Industry The Wage Order defines the Health and Medical industry to include: any business or enterprise engaged in providing medical, dental, surgical or other health services including but not limited to medical and dental offices, hospitals, home health care, hospice care, nursing homes, and mental health centers, and includes any employee who is engaged in the performance of work connected with or incidental to such business or enterprise, including office personnel. Defendants argue that they are not in the Health and Medical industry. In defendants' view, what makes Health and Medical a distinct industry is whether a business provides health services. Defendants argue that they are not hospitals, home health care providers, hospice care providers, nursing homes, or mental health centers, and that they do not provide health services to their clients. Defendants also argue that the Wage Order does not apply because the Colorado Department of Labor and Employment's (CDLE) 2012 Advisory Bulletin (Advisory Bulletin) directs that community centered boards and service agencies that are planned, designed, organized, operated, and maintained to provide services to and for individuals with developmental disabilities are excluded from the Wage Order. Plaintiff does not dispute that Developmental Pathways is a community-centered board and that Continuum is a service agency within the meaning of the Bulletin. Although the Colorado Division of Labor has recently withdrawn the Advisory Bulletins on the grounds that they did not fully incorporate many changes to wage law and policy since they were issued and therefore are not entitled to deference the Court finds the Advisory Bulletin here to have some relevance. Plaintiff does not identify any change in wage law or policy since 2012 that would indicate that the Advisory Bulletin's interpretation of the Wage Order was incorrect as a matter of law and has been superceded by a change in the law. In fact, plaintiff cites to no authority that has adopted her interpretation of the Wage Order. Instead, plaintiff argues that there is a dispute of fact as to whether some of defendants' employees provide Health and Medical services. Defendants assert that the principal job duties of LSSs like plaintiff were to provide day-to-day care for residents by cooking meals, cleaning the house, taking residents to doctors' appointments and to church, grocery shopping, and other like needs, while plaintiff contends that LSSs were also responsible for providing medical care. Even accepting plaintiff's contention, the fact that some of defendants' employees perform services that may be supplied in the Health and Medical industry does not indicate that Wage Order coverage attaches. Plaintiff also has failed to establish a dispute of fact as to whether defendants provide any health and medical services to the general public, as opposed to providing health and medical services solely to persons who have been determined to have an intellectual and developmental disability. The Court concludes that defendants are not in the Health and Medical industry for purposes of the Wage Order. Retail and Service Industry The Wage Order defines the Retail and Service industry to include any business or enterprise that sells or offers for sale, any service, commodity, article, good, real estate, wares, or merchandise to the consuming public, and that generates 50% or more of its annual dollar volume of business from such sales. The retail and service industry offers goods or services that will not be made available for resale. It also includes amusement and recreation, public accommodations, banks, credit unions, savings and loans, and includes any employee who is engaged in the performance of work connected with or incidental to such business or enterprise, including office personnel. The Court finds that defendants are not in the Retail and Service industry. Defendants both generate their income from donations and public funds, rather than the sale of their services to the consuming public. Because defendants are not within either the Health and Medical or Retail and Service industries, they are not covered by the Wage Order. Thus, plaintiff is unable to recover on her First Claim under the Wage Order. Accordingly, the Court grants defendants' motion for summary judgment as to plaintiff's claims under the Wage Order and Colorado Minimum Wage Act, and denies plaintiff's motion for partial summary judgment. Colorado Wage Claim Act Defendants' motion for summary judgment appears to assume that plaintiff has no path to recovery for her First Claim if the Wage Order does not apply to them. However, plaintiff argues that at least some portion of the First Claim is recoverable under the CWCA. Defendants respond by arguing that this is not supported by the complaint and that plaintiff should not be allowed to amend the complaint at this stage. Plaintiff filed a surreply, pointing out that she alleged these claims in the complaint. The Court agrees with plaintiff. The caption of plaintiff's First Claim indicates that it is brought for unpaid straight time as well as overtime and references both the CWCA and the Colorado Minimum Wage Act. While the complaint may not be a model of clarity, plaintiff's assertion that she may recover for allegedly unpaid straight time under the CWCA does not amend the complaint. The unpaid straight time claim is for (1) time required to work before the beginning and after the end of her shift and (2) hours spent on night duty. Because defendants have not made an affirmative argument that they are entitled to summary judgment, the Court denies summary judgment for defendants as to plaintiff's CWCA claims. However, neither party has briefed how the CWCA provides a pathway for plaintiff to recover. It is unclear to the Court whether the CWCA provides a substantive right for plaintiff to recover compensation on her unpaid sleep time claim. Accordingly, the Court will deny plaintiff's motion for class certification without prejudice in order to give plaintiff, and defendants, an opportunity to brief issues regarding plaintiff's CWCA claim. Plaintiff's Second Claim - FLSA Plaintiff claims that defendants violated the FLSA by failing to pay her (and the collective) for work performed (1) before the beginning and after the end of her shift and (2) hours spent on night duty. Pre- and Post-Shift Time Plaintiff claims that defendants failed to pay her for time worked before the beginning and after the end of her scheduled shifts. Defendants make three arguments as to why they are entitled to summary judgment on this claim. First, defendants argue that the pre- and post-shift time is non-compensable because it occurred either before or after the principal activity plaintiff was employed to perform. Second, defendants claim that, if the time is compensable, it is nonetheless de minimis and not subject to the FLSA.Third, defendants state that, if the time is compensable and not de minimis, the time is covered by a permissibly neutral rounding policy. Compensable Time Under the FLSA, employers are not liable for failure to pay an employee wages or overtime compensation for activities which are preliminary to or postliminary to the principal activity or activities which the employee is employed to perform that occur either prior to or subsequent to the time on any particular workday the employee commences or ceases the principal activity or activities. Defendants argue that the pre- and post-shift time is not integral or indispensable to the principal activities of plaintiff's job because (1) plaintiff "could not remember how frequently she may have stayed after her shift (2) plaintiff's time records show that she was compensated for conversations with the incoming or outgoing LSS that lasted more than a few minutes and (3) all information necessary for plaintiff was available in daily logs prepared each day. However, plaintiff has presented evidence that she was instructed to arrive before her shift in order to count medication for residents and that she was required to stay after her shift in order to update the incoming LSS. Defendants' arguments fail to explain why time where plaintiff was required to count medication and to update the incoming LSS would not be integral and indispensable to the operation of defendants' business. Because a factual dispute exists as to what defendants required of plaintiff, the Court finds that defendants have not met their burden to show that they are entitled to summary judgment on this basis. De Minimis Exception In recording working time under the FLSA, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded as de minimis. In addition, the Court must consider: (1) the practical administrative difficulty of recording the additional time (2) the size of the claim in the aggregate and (3) whether the claimants performed the work on a regular basis. Defendants have not shown that the pre- and post- shift time falls within the de minimis exception. As a threshold matter, it is unclear to the Court that the de minimis exception applies given that defendants use electronic time clocks to record employees' comings and goings. Even assuming arguendo that the de minimis exception could apply in this situation, the Court finds that the factors collectively favor plaintiff. The amount of daily time spent is small and weighs in defendants' favor. Plaintiff's time records indicate that the pre- and post-shift time infrequently exceeded ten minutes per shift, each shift covering a two-and-a-half day period. Thus, compensation for pre- and post-shift time does not fall within the de minimis exception. Rounding Policy Defendants argue that their policy of rounding any pre- or post-work time that did not exceed seven minutes to zero is a permissible rounding policy. The federal rounding regulation, 29 C.F.R. Section 785.48(b), reads: Rounding' practices. It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees' starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked. Defendants' rounding policy is neutral on its face, as the policy is to round all time punches without an eye towards whether the employer or the employee is benefitting from the rounding. However, plaintiff has presented evidence that, as applied, there is a factual dispute whether defendants' policy systematically undercompensates employees. Plaintiff contends that the pre- and post-shift time regularly took about three to five minutes and, as a result, her time records show rounding consistently in favor of defendants. Because there is a factual dispute as to whether defendants' rounding policy was permissibly neutral pursuant to 29 C.F.R. Section 785.48(b), the Court will deny summary judgment to defendants on the portion of plaintiff's FLSA claims seeking recovery for pre- and post-shift time. In summary, the Court denies summary judgment for defendants on the portion of plaintiff's FLSA claim that seeks compensation for pre- and post-shift time, as there is a genuine dispute of material fact as to whether the pre- and post-shift time was compensated under a permissible rounding policy. Plaintiff's Third Claim Plaintiff's Third Claim asserts that defendants are liable to plaintiff and the proposed class in quasi-contract, including unjust enrichment under Colorado law. Defendants argue that these claims are preempted by the FLSA. In response, plaintiff concedes that the claim should be dismissed and that judgment can be entered on the claim. Docket No. 103 at 13.17 Accordingly, the Court will grant summary judgment for defendants on plaintiff's Third Claim. Statute of Limitations as to Surviving Claims Defendants move for summary judgment on any claims which accrued prior to July 14, 2014 as barred by the statute of limitations. A cause of action under the FLSA is barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. The rule is the same for claims under the CWCA. Courts have found willful violations where the evidence shows (1) admissions that an employer knew its method of payment violated the FLSA prior to the accrual of the action (2) continuation of a pay practice without further investigation after being put on notice that the practice violated the FLSA (3) earlier violations of the FLSA that would put the employer on actual notice of the requirements of the FLSA (4) failure to keep accurate or complete records of employment and (5) prior internal investigations which revealed similar violations. It is the plaintiff's burden to prove that a violation is willful. As defendants have identified a lack of evidence for plaintiff as to defendants' willfulness, it is plaintiff's burden to designate specific facts showing that there is a genuine issue for trial. Plaintiff, in response, does not present any evidence of defendants' willfulness. Instead, plaintiff argues that summary judgment on this issue is premature. However, as discussed above, the Court finds that summary judgment is not premature. As plaintiff has failed to designate facts showing a genuine dispute as to defendants' willfulness, the Court grants summary judgment to defendants and, applying the two-year statute of limitations, bars all claims under the FLSA and CWCA accruing before July 14, 2014. Defendants' Motion for Summary Judgment is granted in part and denied in part. It is further Plaintiff's Motion for Partial Summary Judgment Against Continuum of Colorado, Inc. as to Plaintiff's 12-Hour Overtime Claim is denied. A full-text copy of the District Court's September 23, 2019 Order is available at https://tinyurl.com/y4qmrznd from Leagle.com. Flavie Bondeh Bagoue, and those similarly situated, Plaintiff, represented by Brian David Gonzales -Bgonzales@ColoradoWageLaw.com - Brian D. Gonzales, PLLC & Alexander Neville Hood , Towards Justice, 1410 N High St Ste 300, Denver, CO, 80218-2609 Developmental Pathways, Inc. & Continuum of Colorado, Inc., Defendants, represented by Celena R. Mayo , Wilson Elser Moskowitz Edelman & Dicker, LLP, Jason D. Melichar , Wilson Elser Moskowitz Edelman & Dicker LLP, Justin Anthony Guilfoyle , Wilson Elser Moskowitz Edelman & Dicker, LLP, Scott Douglas Sweeney , Wilson Elser Moskowitz Edelman & Dicker, LLP, 150 East 42nd Street New York, NY 10017 & Christopher J.W. Forrest , Miller & Steiert, P.C.,1901 West Littleton BoulevardSuite 100Littleton, CO 80120- 2087 DICK'S SPORTING: Court Approves Class Notice in Greer ----------------------------------------------------- The United States District Court for the Eastern District of California issue an Order approving Class Notice in the case captioned JIMMY GREER, Plaintiff, v. DICK'S SPORTING GOODS, INC., Defendant. Case No. 2:15-cv-01063-KJM-CKD. (E.D. Cal.). Hearing on plaintiff's motion for final approval December 20, 2019 at 10:00 a.m. in of class action settlement and motion for Courtroom No. 3 attorneys' fees, costs, and class representative enhancement payment. A full-text copy of the District Court's September 19, 2019 Order is available at https://tinyurl.com/yxzr7z8n from Leagle.com. Jimmy Greer, Plaintiff, represented by Melissa Grant - Melissa.Grant@CapstoneLawyers.com - Capstone Law APC, Raul Perez - Raul.Perez@CapstoneLawyers.com - Capstone Law APC, Robert J. Drexler - Robert.Drexler@CapstoneLawyers.com - Capstone Law APC, Bevin Elaine Allen Pike – Bevin.Pike@CapstoneLawyers.com - Capstone Law APC & Jonathan Sing Lee - Jonathan.Lee@CapstoneLawyers.com - Capstone Law APC. Dick's Sporting Goods, Inc., Defendant, represented by Babak G. Yousefzadeh -byousefzadeh@sheppardmullin.com - Sheppard Mullin Richter & Hampton, LLP, Paul S. Cowie - pcowie@sheppardmullin.com - Sheppard, Mullin, Richter & Hampton, LLP, Africa Reanne Swafford - rswafford-harris@sheppardmullin.com - Sheppard Mullin Richter & Hampton LLP & Caryn F. Horner - chorner@sheppardmullin.com - Sheppard Mullin Richter & Hampton LLP. DOW CHEMICAL: Court Denies Remand of Environmental Suit ------------------------------------------------------- The United States District Court for the Eastern District of Louisiana issued an Order and Reasons denying Plaintiffs' Motion to Remand in the case captioned SHEILA GUIDRY, individually and on behalf of all others similarly situated, ET AL., v. DOW CHEMICAL COMPANY, ET AL., SECTION "F". Civil Action No. 19-12233. (E.D. La.). A tank at a Union Carbide facility in Taft, Louisiana released into the air a chemical, Ethyl Acrylate (EA). The St. Charles Parish Department of Emergency Preparedness closed nearby roads and evacuated residents within a two-mile area east of the facility. Sheila Guidry filed this lawsuit in Orleans Parish against Dow Chemical Company and the State of Louisiana through the Department of Environmental Quality. She alleged that she noticed a foul smell, which caused her to suffer headache, dizziness, and burning eyes. Dow removed the case to this Court, invoking the Court's Class Action Fairness Act jurisdiction for the second time in 10 years. What triggered removal this time? Six days earlier, in a letter addressed to defense counsel regarding settlement value, class counsel Ron Austin wrote that the parameters of a possible settlement can be safely couched in terms of a range from $60 MILLION to $275 MILLION. The plaintiffs now move to remand, arguing not that the $5,000,000 amount in controversy requirement is lacking, but, rather, that removal is untimely because the defendants should have known years earlier the potential class size and that the plaintiffs' transient health impacts damages could exceed $5,000,000. CAFA gives federal courts original jurisdiction over certain class actions if the class has more than 100 members, the parties are minimally diverse, and the amount in controversy exceeds $5 million. To determine whether the matter in controversy exceeds $5 million, the claims of the individual class members shall be aggregated. And those class members include persons (named or unnamed) who fall within the definition of the proposed or certified class. Although the plaintiffs challenge removal in this case, the removing defendants must establish that federal jurisdiction exists at the time of removal and that removal was proper. Remand is proper if the plaintiff timely identifies a procedural defect in removal; remand is mandated if at any time the Court lacks subject matter jurisdiction. Given CAFA's broad objective to ensure Federal court consideration of interstate cases of national importance, the Supreme Court endorsed Congressional intent to read CAFA's provisions broadly, accordingly, no antiremoval presumption attends cases invoking CAFA. The parties dispute only timeliness of removal, not whether CAFA's amount in controversy requirement is met. The plaintiffs present a singular procedural defect challenge to removal: removal was untimely because the defendants had been placed on notice for many years that the potential class size allowed for damages exceeding $5 million; thus, removal in August 2019 was too late. The defendants counter that the plaintiffs avoided disclosing and equivocated regarding the potential class size until they wrote the settlement valuation letter on August 14, 2019; this letter was the first paper which allowed the defendants to ascertain that the plaintiffs were in fact seeking damages well in excess of the $5 million amount in controversy. The defendants insist that the letter provided the level of certainty missing for years, finally opened up the removal window, and removal was timely accomplished within 30 days of that other paper. Removal in this case is timely only if the facts forming the $5 million amount in controversy theory on which defendants predicate removal jurisdiction were not set forth until class counsel wrote to defense counsel on August 14, 2019. If, instead, earlier papers identified by the plaintiffs estimating class size made the amount in controversy certain, exact, or precise, then removal is untimely. When did the plaintiff disclose facts sufficient to trigger federal officer removal? The procedural defect dispute focuses on whether plaintiffs' statements in state court briefing over the years indicated with certainty or precision that the amount in controversy here exceeds $5 million. The plaintiffs identify a litany of expert testimony and statements by plaintiffs' counsel, each of which they argue should have alerted defendants that the case was removable, inter alia: (1) in May 2011, depositions of the class representatives were taken in which the four individuals detailed their health complaints, which were indicative of the types of injuries alleged by the class as a whole, including headaches, nausea, and irritated or burning eyes on the morning of July 9, 2009. (2) in July 2015, the defendants deposed the plaintiffs' expert toxicologist, Dr. Patricia Williams, who opined on the effects of EA on the class representatives, that levels of EA at 1.3 parts per billion could trigger reflex symptoms similar to the class representatives' complaints. None of these papers started the removal clock. The plaintiffs insist that three simple Google searches reveal the population of Orleans, Jefferson, and St. Charles Parishes, which combine for a total of 757,413 potential class members, and that the class was comprised of tens of thousands or more and/or, as the plaintiffs contended, several hundred thousand members. These are the type of speculative metrics, the defendants counter, that were rejected by this Court and the Fifth Circuit when the defendants removed this case over nine years ago. These estimates by the plaintiffs, the defendants argue, come no closer than Google to providing the population of the actual class, much less unequivocally establishing that the amount in controversy exceeded $5,000,000. The Court agrees. The plaintiffs' statements in these earlier papers, insofar as they bear on class size at all, are mere argumentative inflations or hopeful estimates as to the number of potential class members based purely on geography and population estimates. This Court and the Fifth Circuit previously determined that ascertaining class size or amount in controversy based solely on geography and population estimates was too speculative to invoke this Court's limited jurisdiction. The plaintiffs' estimates anchored to these same speculative baselines phrased as argument in state court briefing fail the Bosky test as a matter of law. None of the plaintiffs' disclosures in state court made certain, exact, or precise or allowed the defendants to find out or learn with certainty facts supporting CAFA jurisdiction. First, insofar as the plaintiffs argue that the defendants should have inferred from the cumulation of these statements over the years that the amount in controversy exceeds $5 million, the plaintiffs misapply Bosky's bright line rule. Second, although facts obtained from deposition testimony constitutes other paper in the abstract, the information identified by the plaintiffs here offer no opinions on class-defining principles, let alone even mere estimates on class size. Third, the plaintiffs' October 2, 2015 statement in briefing that there are tens of thousands or more of potential individual litigants who were injured is, at best, an argumentative estimate, which does not indicate whether it references the Guidry class or all people injured by the release many of whom are proceeding in litigation in St. Charles Parish. Fourth, the plaintiffs' assertion in state court briefing a change in class population from several hundred thousand to several-hundred-thousand-but-a-few-less may be hyperbole or it may be their hopeful estimate; the source is neither mentioned nor ascertainable. That the valuation letter opened the removal window sufficient to render removal procedurally proper, however, does not mean that the letter suffices to demonstrate that it is more likely than not that the amount in controversy is met for the Court to exercise jurisdiction under CAFA. In other words, neither the information contained in the letter, nor all parties' apparent concession that the amount in controversy exceeds $5 million suffice to make it so. For jurisdiction cannot be conferred by the parties' consent. That the plaintiffs singularly challenge timeliness of removal does not end the Court's inquiry into its own jurisdiction. To be sure, a defendant cannot establish removal jurisdiction by mere speculation and parties can neither concede that it exists nor proselytize beliefs which, if true, would support its exercise. Thus, the Court finds that it must be satisfied, by a preponderance of the evidence, that the amount in controversy requirement is met.25 Determining whether $5 million is realistically at stake in this lawsuit must be more clear and certain. It seems that the only process that will facilitate ascertaining this objective metric of jurisdiction is for plaintiffs' counsel to conduct, a sworn claims and discovery process. Accordingly, for the foregoing reasons, IT IS ORDERED: that the plaintiff's motion to remand is DENIED without prejudice. Plaintiffs shall complete jurisdictional discovery within ninety days, after which the Court will consider another motion to remand, if necessary, based on the size of the class and specifics about class member symptoms. A full-text copy of the District Court's September 19, 2019 Order and Reasons is available at https://tinyurl.com/yxv8swnb from Leagle.com. Sheila Guidry, individually and on behalf of all others similarly situated, Plaintiff, represented by John Bartholomew Kelly, III , Alvendia, Kelly, & Demarest, LLC, 909 Poydras St Ste 1625, New Orleans, LA, 70112-4067, Benjamin W. Gulick , Law Offices of Gregory P. DiLeo, PLC, 300 Lafayette St. Suite 101 New Orleans, LA 70130, Catherine Hilton , Ron Austin Law, LLC, 230 West Monroe Street, Suite 240, Chicago, IL 60606Gregory, Pius DiLeo , Law Offices of Gregory P. DiLeo, PLC, 300 Lafayette St. Suite 101 New Orleans, LA 70130, Jeffrey P. Berniard , Berniard Law LLC, 1140 St Charles Ave, New Orleans, Louisiana 70130, Madro Bandaries - madro@bandarieslaw.com - Madro Bandaries, PLC, Roderick Alvendia , Alvendia, Kelly, & Demarest, LLC 909 Poydras St Ste 1625, New Orleans, LA, 70112-4067& Ron Anthony Austin - raustin@austin-associates.net - Austin & Associates, LLC. Dow Chemical Company, Defendant, represented by David Mark Bienvenu, Jr. , Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Colin Patrick O'Rourke , Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, John Allain Viator , Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Patrick Hayes Hunt , Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC & Phillip E. Foco , Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, 4210 Bluebonnet Blvd., Baton Rouge, LA, 70809-9630 Department of Environmental Quality State of Louisiana, Defendant, represented by Peter Stephan Koeppel , Koeppel Traylor, LLC & William Scarth Clark , Koeppel Clark Turner,110 Veterans, Suite 360, Metairie, LA 70005. Union Carbide Corporation, Defendant, represented by Neil Charles Abramson - nabramson@liskow.com - Liskow & Lewis, Mark Charles Dodart - mark.dodart@phelps.com - Phelps Dunbar, LLP & Nora Bolling Bilbro - nbilbro@liskow.com - Liskow & Lewis. DRAEGER INC: Fails to Pay Overtime Under FLSA & PMWA, Bohan Says ---------------------------------------------------------------- ANDREW BOHAN, individually and on behalf of all others similarly situated v. DRAEGER, INC. d/b/a DRAEGER MEDICAL SYSTEMS, INC., Case No. 5:19-cv-04185-JLS (E.D. Pa., Sept. 11, 2019), alleges that the Defendant has unlawfully failed to pay the Plaintiff and other Finance Department employees overtime compensation pursuant to the requirements of the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. Draeger Inc., doing business as Draeger Medical Systems, Inc., is a for-profit business entity, duly organized and existing under the laws of the Commonwealth of Pennsylvania, and is registered and licensed to engage in business, and is engaged in business, in the Eastern District of Pennsylvania, and the Commonwealth of Pennsylvania. Draeger's line of business includes the manufacturing of medical, surgical, ophthalmic, and veterinary instruments and apparatus.[BN] The Plaintiff is represented by: Michael Murphy, Esq. Morgan J. Zucker, Esq. MURPHY LAW GROUP, LLC Eight Penn Center, Suite 2000 1628 John F. Kennedy Blvd. Philadelphia, PA 19103 Telephone: (267) 273-1054 E-mail: murphy@phillyemploymentlawyer.com mzucker@phillyemploymentlawyer.com DST SYSTEMS: Bids for Lawyer Fees in Scott Securities Suit Denied ----------------------------------------------------------------- In the cases BRIAN SCOTT, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. DST SYSTEMS, INC., STEPHEN C. HOOLEY, GARY D. FORSEE, CHARLES EDGAR HALDEMAN, SAMUEL G. LISS, JEROME H. BAILEY, JOSEPH C. ANTONELLIS, LOWELL L. BRYAN, and LYNN DORSEY BLEIL, Defendants; and JAMES D. WILLIAMS, Plaintiff, v. DST SYSTEMS, INC., STEPHEN C. HOOLEY, CHARLES E. HALDEMAN, SAMUEL G. LISS, LOWELL L. BRYAN, LYNN D. BLIEL, JEROME H. BAILEY, JOSEPH C. ANTONELLIS, and GARY D. FORSEE, Defendants, Civil Action Nos. 1:18-cv-00286-RGA, 1:18-cv-00322-RGA (D. Del.), Judge Richard G. Andrews of the U.S. District Court for the District of Delaware denied (i) Plaintiff Scott's Motion for Attorney Fees and (ii) Plaintiff Williams' Motion for Attorney Fees. The cases stem from the March 28, 2018 merger of DST with SS&C Technologies, Inc. The DST Board initiated the transaction on Jan. 11, 2018 when it entered into an agreement and plan of merger with SS&C. SS&C was to acquire DST for $84 per share of common stock. The merger was valued at $5.4 billion. The Defendants issued a preliminary proxy statement describing the details of the transaction on Feb. 7, 2018. Three lawsuits, two in the Court and another in Missouri, were filed within weeks. The lawsuits alleged that the preliminary proxy statement omitted material information in violation of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934. DST filed its definitive proxy statement with the SEC on Feb. 27, 2018. Two weeks later, DST voluntarily issued a supplemental disclosure to moot the pending lawsuits. The Plaintiffs agreed that the supplemental disclosures mooted their lawsuits and began pursuit of attorneys' fees. Scott sought $115,000 in attorneys' fees while Williams sought $100,000 of the same. Judge Andrews concludes that the Plaintiffs have not developed a factual record or proffer expert opinions in support of their motions. Rather, they relied on the bald fact of the Defendants' supplemental disclosures. Essentially, Plaintiffs argued throughout their briefing that the missing information was so plainly material that its disclosure was a substantial benefit to the stockholders as a matter of law. The Judge does find the Plaintiffs' position persuasive. It is far from clear, as a factual matter in the case, that the information disclosed by the Defendants was material, the Court held. The Plaintiffs' attorneys' arguments, opinions from judges in other cases, and law review articles do not carry the weight the Plaintiffs put on them. Moreover, absent evidence that the information was material, there is no basis in the record to find that the Plaintiffs conferred any benefit on DST stockholders, the Court said. The Plaintiffs have failed to carry their evidentiary burden, the Court opined. Accordingly, the judge denied Plaintiffs' motions for attorneys' fees. A full-text copy of the Court's Aug. 23, 2019 Memorandum Opinion is available at https://is.gd/1vXWsa from Leagle.com. Brian Scott, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Michael D. Van Gorder -- mvangorder@faruqilaw.com -- of Faruqi & Faruqi, LLP. DST Systems, Inc., Defendant, represented by Sabrina M. Hendershot -- shendershot@mnat.com -- of Morris, Nichols, Arsht & Tunnell LLP. Stephen C. Hooley, Gary D. Forsee, Charles Edgar Haldeman, Samuel G. Liss, Jerome H. Bailey, Joseph C. Antonellis, Lowell L. Bryan & Lynn Dorsey Bleil, Defendants, represented by Edward Bennett Micheletti -- edward.micheletti@skadden.com -- of Skadden, Arps, Slate, Meagher & Flom LLP. DXC TECHNOLOGY: Class Suit Claims Job Cuts Tied to Profit Targets ----------------------------------------------------------------- Paul Kunert, writing for The Register, reports that DXC Technology has been named in another class-action lawsuit that alleges mass redundancies were used by senior management to boost earnings but left the company unable to service contracted clients properly. Bragar, Eagel & Squire PC, a New York litigator specialising in securities cases, lodged the papers on 16 September (PDF) with the US District Court for the Northern District of California on behalf of investors. A less kind publication may refer to the legal eagle as an ambulance-chaser, trying to drum up interest from current or previous DXC stock owners. The class action, which names DXC shareholder Jason McLees as lead plaintiff, is being brought on behalf of investors that bought DXC stock "pursuant to and/or traceable to the company's April 2017 registration statement and prospectus" -- which is when DXC started trading. DXC published Offering Materials -- a kind of prospectus for shareholders -- on 27 February 2017 that talked of the firm wringing out $1bn in "synergies" in its first year due to greater economies of scale (volume discounts); workforce changes that included erasing role duplication; and reducing general admin overheads. DXC said it would align costs with the revenue trajectory -- $26bn was forecast for the merged firm in year one. The Offering Materials also emphasised DXC's ability to retain "highly motivated people with the skills necessary to serve their customers". The class-action lawsuit filed by Bragar, Eagel & Squire alleges: The Offering Materials' representations, financial metrics and purported risk disclosures were false and misleading because they failed to disclose that Defendants' planned "workforce optimisation" plan was, in truth, earnings management in disguise. Defendants would impose arbitrary quotas that resulted in the termination of tens of thousands of workers, selectively timed to artificially inflate reported earnings over the short term and present misleadingly inflated quarterly and yearly financial reports to boost the stock price, ahead of insider sales, including by Defendant Lawrie, who exercised stock options to gain millions in personal profit. DXC also offloaded overheads by consolidating office real estate and rationalising the number of data centres it runs worldwide. The complaint further alleges that Lawrie -- DXC's CEO from the merger until a fortnight ago when he was replaced by Mike Salvino -- had actually made internal forecasts of $2.7bn worth of planned workforce reductions for first fiscal year, nearly triple the figure that was made public. "The foreseeable impact of these severe, undisclosed cuts and firings was that DXC could not deliver on its client contracts and client satisfaction plummeted along with employee capacity and morale, rendering the financial metrics in the Offering Materials false and unrealistic," the complaint states. It adds that the disclosure of these "material facts" -- known events or uncertainties that could affect future performance -- was required under US Securities and Exchange Commission regulations. And they should also have been included under "risks" in the Offering Material, it says. As the "truth" emerged about its plans, the "price of DXC shares declined substantially", the filing reads. The stock was trading at $31 apiece when the lawsuit was filed, down from the $59 per share valuation on the exchange date for the merger. "Investors have thus suffered considerable losses as a result of the Defendants' misconduct and seek to recover their losses through this action," the filing adds. Some shareholders may look to piggyback the lawsuit, if all goes to plan for Bragar, Eagel & Squire. Suits of this kind are not unusual when a company's stock price drops substantially. Whether this one is successful is a moot point. DXC, the result of the spin merger between CSC and HPE Enterprise Services, started life with 170,000 employees but at last public admission had 130,000 people on the payroll. This was around April and since then, DXC has processed more redundancies, including in the UK and US, where almost half of the security team was cast off. The Register has heard anecdotal evidence from staff that they are struggling to fulfil services contracts due to too many people being made redundant, but we have yet to be made aware of DXC losing customers due to the issue. The strategy at the company has been to minimise declines in the legacy outsourcing business, which has been shrinking quarter-on-quarter, and ramp its cloud business with AWS et al to offset those lost revenues. The fruits of this effort have yet to pay off. Employees caught in the middle have been collateral damage. The hope from at least some in the workforce is that Salvino, brought in to succeed Lawrie as CEO, will draft his own strategy to take the business forward, perhaps one that doesn't involve jettisoning thousands of the people who are supposed to be DXC's greatest asset. A spokesman told The Register: "The allegations in this suit have no merit and DXC fully intends to vigorously defend the case." [GN] E & E FOOD: Fails to Pay Delivery Men Minimum Wage, Galindo Says ---------------------------------------------------------------- DANIEL BONILLA GALINDO, JOSE JUAN MAYA ALVAREZ, and JOSE VASQUEZ GERONIMO, individually and on behalf of others similarly situated v. E & E FOOD CORP. (D/B/A ZEYTIN MEDITERRANEAN), NAZIM ALKAN, EROL ALKAN, ANDY KOKSAL AKA MEHMET ENGIN KOKSAL, and NIKO DOE, Case No. 1:19-cv-08459 (S.D.N.Y., Sept. 11, 2019), alleges that the Plaintiffs worked for the Defendants without appropriate minimum wage compensation for the hours that they worked, in violation of the Fair Labor Standards Act and New York Labor Law. The Plaintiffs are former employees of the Defendants. They were employed as delivery workers at the restaurant located at 110 William Street, in New York City. E & E Food Corp. (d/b/a Zeytin Mediterranean) is a domestic corporation organized and existing under the laws of the State of New York. The Individual Defendants serve or served as owners, managers, principals, or agents of the Defendant Corporation. The Defendants own, operate, or control a Mediterranean restaurant, located at 110 William Street under the name "Zeytin Mediterranean."[BN] The Plaintiffs are represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Michael@Faillacelaw.com E.I. DU PONT: Boothe Farms Files Class Action Over Pesticide ------------------------------------------------------------ Courthouse News Service reports that Boothe Farms claims in a federal class action that Dow Chemical, Corteva and DuPont's Loyant pesticide does not control grasses and weeds as advertised, and damaged their rice crops. A copy of the lawsuit is available at: https://www.courthousenews.com/wp-content/uploads/2019/09/Pesticides.pdf EAGLE DINER: $162.5K Settlement in Flores Suit Has Prelim Approval ------------------------------------------------------------------ In the case, ALEXIS FLORES and VIRGINIA GOOLD, for themselves and all others similarly situated, Plaintiffs, v. EAGLE DINER CORP., et al., Defendants, Civil Action No. 2:18-cv-01206-AB (E.D. Pa.), Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania granted the Plaintiff's Unopposed Motion for Preliminary Class and Collective Action Settlement Approval. Flores and Goold filed a lawsuit in March 2018 the Defendants, alleging claims under federal law and Pennsylvania law for unpaid minimum and overtime wages. The Court has allowed the Action to proceed for settlement purposes only on behalf of a Class including all people who, between March 22, 2015 and Dec. 12, 2018, worked as a Server at Eagle Diner. The Defendants have reviewed and investigated the matter and deny any wrongdoing but have decided to resolve the Action to avoid the expense of litigation and the ongoing disruption to their business operations. The parties have entered into a Settlement Agreement to resolve the claims in the Action. To avoid the burden, expense, inconvenience, and uncertainty of continuing the Action, the Defendants have agreed to pay a total of $162,500. The Parties propose to distribute these funds as follows: at least $88,870 to pay damages to Servers who do not submit a timely, valid request for exclusion, $10,000 to pay Service Payments to the two Named Plaintiffs, up to $53,625 to pay the Class Counsel's attorneys' fees and up to $10,000 to reimburse Class Counsel's out-of-pocket litigation costs and pay settlement administration costs. Judge Brody preliminarily certified the proposed settlement class for settlement purposes only. She preliminarily approved the proposed settlement agreement in relation to the Plaintiffs' class action and collective action claims. Alexis Flores and Virginia Goold will serve as the Settlement Class Representatives; and attorneys from Stephan Zouras LLP as the Class Counsel. The Court will approve notice to the Class Members after implementation of the suggested revisions in Appendix A. The Parties must submit to the Court a written acceptance of or objection to the suggested revisions on Sept. 6, 2019 The Parties must follow the schedule in Appendix B. A full-text copy of the Court's Aug. 21, 2019 Order is available at https://is.gd/E8uAzm from Leagle.com. ALEXIS FLORES & VIRGINIA GOOLD, FOR THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Plaintiffs, represented by DAVID J. COHEN -- dcohen@stephanzouras.com -- STEPHAN ZOURAS LLP, HALEY R. JENKINS, STEPHAN ZOURAS, LLP, JAMES B. ZOURAS, STEPHAN ZOURAS LLP & RYAN F. STEPHAN, STEPHAN ZOURAS LLP. JAMES ROKOS, MARIA ROKOS & MARKO ROKOS, Defendants, represented by ROBERT NEIL BRAVERMAN, LAW OFFICE OF ROBERT BRAVERMAN LLC. FARFETCH LIMITED: Omdahl Sues Over Share Price Drop --------------------------------------------------- JEFF OMDAHL, Individually and On Behalf of All Others Similarly Situated, Plaintiff v. FARFETCH LIMITED, JOSE NEVES, ELLIOT JORDAN, FREDERIC COURT, DANA EVAN, JONATHAN KAMALUDDIN, RICHARD LIU, NATALIE MASSENET, JONATHAN NEWHOUSE, DANIEL RIMER, MICHAEL RISMAN, DAVID ROSENBLATT, GOLDMAN SACHS & CO. LLC, J.P. MORGAN SECURITIES LLC, ALLEN & COMPANY LLC, UBS SECURITIES LLC, CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK SECURITIES INC., WELLS FARGO SECURITIES, LLC, COWEN AND COMPANY, LLC, and BNP PARIBAS SECURITIES CORP., Defendants, Case No. 1:19-cv-08657 (S.D.N.Y., Sept. 17, 2019), is a class action on behalf of persons and entities that purchased or otherwise acquired Farfetch securities pursuant and/or traceable to the registration statement and prospectus issued in connection with the Company's September 2018 initial public offering. The Plaintiff pursues claims against the Defendants under the Securities Act of 1933. On September 24, 2018, the Company filed its prospectus on Form 424B4 with the SEC, which forms part of the Registration Statement. In the IPO, the Company sold approximately 50.88 million shares of Class A common stock at a price of $20.00 per share. The Company received proceeds of approximately $750.5 million from the Offering, net of underwriting discounts and commissions. The proceeds from the IPO were purportedly to be used to fund incremental growth and other general corporate purposes, including possible acquisitions. 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, on unusually heavy trading volume. By the commencement of this action, the Company's stock was trading as low as $10.20 per share, a nearly 50% decline from the $20 per share IPO price. The Plaintiff alleges that the Registration Statement was false and misleading and omitted to state material adverse facts. Specifically, the Plaintiff contends, the 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. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, Plaintiff and other Class members have suffered significant losses and damages, says the complaint. Plaintiff Jeff Omdahl purchased or otherwise acquired Farfetch securities pursuant and traceable to the Registration Statement issued in connection with the Company's IPO. Farfetch is a technology platform that purports to be the only global luxury digital marketplace at scale that connects brands, retailers, and consumers.[BN] The Plaintiff is represented by: Lesley F. Portnoy, Esq. GLANCY PRONGAY & MURRAY LLP 230 Park Ave., Suite 530 New York, NY 10169 Telephone: (212) 682-5340 Facsimile: (212) 884-0988 E-mail: lportnoy@glancylaw.com - and - Lionel Z. Glancy, Esq. Robert V. Prongay, Esq. Charles H. Linehan, Esq. Pavithra Rajesh, Esq. GLANCY PRONGAY & MURRAY LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: info@glancylaw.com FLORIDA: Approval of $15.5MM 'Best and Brightest' Suit Deal Sought ------------------------------------------------------------------ Jim Saunders, writing for Pensacola News Journal, reports that the state Department of Education and the Florida Education Association asked a federal judge on Sept. 19, 2019, to preliminarily approve a $15.5 million settlement in a class-action lawsuit alleging that the "Best and Brightest" teacher-bonus program discriminated against black and Hispanic teachers. The settlement stems from a long-controversial decision by lawmakers to partly base Best and Brightest bonuses on teachers' scores on SAT and ACT college-admission exams. The Florida Education Association, a union that represents teachers throughout the state, and individual plaintiffs filed the lawsuit in 2017 alleging that the use of the SAT and ACT scores had a "disparate impact" on black, Hispanic and older teachers. Under the settlement, money will go to black and Hispanic classroom teachers who were rated as "highly effective" but did not receive Best and Brightest bonuses since the program took effect in 2015. Also, the settlement, which has been in the works for months, hinged on state lawmakers passing a bill to remove the SAT and ACT requirement from the program -- a move lawmakers made this spring with Gov. Ron DeSantis' support. "This settlement provides outstanding and meaningful relief to the class (of teachers), including substantial monetary relief funded by an aggregate settlement fund of $15,500,000 to be shared by class members and substantial non-monetary, injunctive relief in the form of a condition, which has occurred, that the Florida Legislature repeal the program's testing requirements and not enact similar requirements," attorneys for the Florida Education Association and other plaintiffs said in a court document filed September 19. The settlement said the state denies the allegations that the program had a disparate impact on black, Hispanic and older teachers. A document filed September 19 by the Department of Education pointed to a desire to resolve the lengthy litigation. "The department agreed to settle this action in order to avoid the burden, expense, risk, and uncertainty of continued litigation, and to put to rest the controversies engendered by the action, and without any admission of any liability or wrongdoing whatsoever," the department's attorneys wrote. The settlement creates a formula for determining the amount of payments to black and Hispanic teachers who are eligible, but the exact amounts of payment remain unclear. A document filed September 19 indicates an estimated 31,000 teachers would be eligible to file claims and receive payments for one or more of the years the Best and Brightest program has been in effect. Also, as much as 15 percent of the settlement fund could go to attorney fees and other costs. While teacher bonuses have long drawn debate in the Capitol, the Best and Brightest program has been particularly controversial because of the use of scores on ACT and SAT exams that, in some cases, teachers took decades earlier. The lawsuit alleged that many black, Hispanic and older teachers were disproportionately denied the bonuses and that the program violated civil-rights laws. "The SAT/ACT score requirement has an illegal disparate impact on teachers based on their age and on teachers based on their black and Hispanic race," the plaintiffs' attorneys wrote in 2017. "The SAT/ACT score requirement is not required by business necessity and is not related to job performance." While the parties sought preliminary approval of the settlement [on Sept. 19], they plan to seek final approval after a period in which teachers can "opt out." [GN] FORD MOTOR: Court Dismisses Sugasawara Suit With Leave to Amend --------------------------------------------------------------- In the case, EMERY SUGASAWARA and VINCENT TUMBARELLO, Plaintiff, v. FORD MOTOR COMPANY, Defendant, Case No. 18-CV-06159-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, granted Ford's to motion to dismiss the second amended complaint for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) or for failure to state a claim under Rule 12(b)(6). The case is a putative class action arising out of an alleged defect with the seatbelt systems in certain Ford F-150 trucks. The putative class consists of consumers who have owned or leased the vehicles at issue. The Plaintiffs filed their original complaint in October 2018. They have amended their complaint twice; the current Second Amended Complaint was filed in March 2019. Sugasawara and Tumbarello are the named Plaintiffs, who seek to represent a putative class of all persons in the United States who formerly or currently own or lease one or more of the Vehicles. The suit comprises: (1) a claim under the Consumer Legal Remedies Act; (2) a claim under the California Unfair Competition Law; (3) a negligence claim; (4) a design defect claim; (5) a claim under the Magnuson-Moss Warranty Act; (6) a claim under the Song-Beverly Consumer Warranty Act; and (7) a cluster of claims for violations of over 50 "Deceptive Trade Practices Acts of the various states." Ford filed a motion to dismiss the original Complaint and a corresponding request for judicial notice in March 2019. That motion was mooted by the Plaintiffs' subsequent amendments to the Complaint, so Ford filed the instant motion to dismiss the SAC in June 2019. Ford's first argument for dismissal is that, pursuant to Rule 12(b)(2), the Court lacks personal jurisdiction over Tumbarello's claims against Ford. It also challenges both Sugasawara and Tumbarello's Article III standing to bring any of their claims and requests dismissal pursuant to Rule 12(b)(1). Finally, pursuant to Rule 12(b)(6), Ford contends the Plaintiffs have failed to adequately plead the necessary elements of the causes of action. The Plaintiffs filed their opposition on July 15, 2019, and Ford filed its reply on Aug. 1, 2019. Ford seeks to dismiss all the causes of action in the Second Amended Complaint on several, often overlapping grounds. As it must address jurisdictional concerns first, Judge Koh begins with the Ford's contention that the Plaintiffs lack standing. She concludes that Sugasawara and Tumbarello have failed to allege plausibly a concrete, imminent injury that is traceable to Ford's conduct. She therefore dismisses the Plaintiffs' claims for lack of subject matter jurisdiction. Consequently, the Judge does not reach the Defendant's arguments that the Court lacks personal jurisdiction over Tumbarello's claims against Ford or that the Plaintiffs have failed to state a claim pursuant to Rule 12(b)(6). At issue in the motion are the first and second elements of Article III standing, injury in fact and causation. As Ford points out, neither Sugasawara nor Tumbarello allege that the Defect manifested in his vehicle, let alone that he experienced any harm attributable to the Defect. Instead, the Plaintiffs propound three basic categories of harm: (1) the cost of repairing the Defect; (2) the risk of future injury from the Defect; (3) economic loss from overpaying for their Ford 150s at the time of purchase. The Court addresses the first two -- which are only briefly alleged in the SAC -- before focusing on the Plaintiffs' main theory of harm, overpayment. The Judge easily rejects the Plaintiffs' first alleged injury, which is that the Plaintiffs have been damaged by the cost of repairs required due to seatbelt pretension problems. The SAC is devoid of any allegations that Sugasawara or Tumbarello paid out of pocket to repair or place parts of their Ford F-150s. Even if they had, they may have been eligible for a reimbursement from Ford. Moreover, Ford's recall remedy is free of charge to owners of affected vehicles. The theory of harm fails. Next, the Plaintiffs claim they are being subjected to potential risk of injury. That is, they believe the recall remedy proposed by Ford is insufficient, and that the Defect thus continues to pose a safety hazard. The Judge holds the theoretical risk of future injury from the Defect provides no basis for standing. The Plaintiffs have not alleged a credible threat of harm. They acknowledge that, through the recall process, Ford has voluntarily provided a remedy free of charge. The Plaintiffs have not plausibly alleged that Ford's recall remedy will fail to cure the Defect. Moreover, the Complaint does not state whether Tumbarello has availed himself of the recall remedy. To the extent Tumbarello has not done so, he cannot thereby manufacture standing. Any defect that persists in Tumbarello's truck is not fairly "traceable" to Ford but rather to Tumbarello; causation would therefore be lacking. Finally, the Judge finds that the Plaintiffs have failed to adequately allege that the Defect remains after the recall remedy has been completed. Without a concrete injury that is fairly traceable to Ford's alleged wrongdoing, the Plaintiffs cannot sustain their claims. She therefore dismisses the SAC for lack of standing, pursuant to Rule 12(b)(1). However, because the Plaintiffs could allege additional facts to establish standing, she grants the Plaintiffs leave to amend. For the foregoing reasons, Judge Koh granted Ford's motion to dismiss the SAC for lack of subject matter jurisdiction with leave to amend. Should the Plaintiffs elect to file an amended complaint, they will do so within 30 days. If they fail to file an amended complaint within 30 days or fail to cure the deficiencies identified in the Order, the claims dismissed in the Order will be dismissed with prejudice. The Plaintiffs may not add new causes of action or new parties without a stipulation or leave of the Court. In addition, although the Judge did not reach Ford's other arguments for dismissal. The Plaintiffs are advised that their amended complaint should remedy all the deficiencies identified in Ford's motion to dismiss. A full-text copy of the Court's Aug. 21, 2019 Order is available at https://is.gd/x7YWiI from Leagle.com. Emery Sugasawara, Plaintiff, represented by Robert Ahdoot -- RAhdoot@ahdootwolfson.com -- Ahdoot & Wolfson, P.C., Adam A. Edwards -- adam@gregcolemanlaw.com -- Greg Coleman Law PC, pro hac vice, Daniel Kent Bryson -- dan@wbmllp.com -- Whitfield Bryson Mason LLP, pro hac vice, Gregory F. Coleman, Greg Coleman Law PC, pro hac vice, John Hunter Bryson, Whitfield Bryson & Mason LLP, Mark E. Silvey, Greg Coleman Law PC, pro hac vice, Rachel Lynn Soffin, Morgan and Morgan, Theodore Walter Maya -- tmaya@ahdootwolfson.com -- Ahdoot & Wolfson, P.C. & Tina Wolfson -- twolfson@ahdootwolfson.com -- Ahdoot & Wolfson, P.C. Vincent Tumbarello, individually and on behalf of all others similarly situated, Plaintiff, represented by Robert Ahdoot, Ahdoot & Wolfson, P.C., Adam A. Edwards, Greg Coleman Law PC, pro hac vice, Daniel Kent Bryson, Whitfield Bryson Mason LLP, pro hac vice, Gregory F. Coleman, Greg Coleman Law PC, pro hac vice, John Hunter Bryson, Whitfield Bryson & Mason LLP, Mark E. Silvey, Greg Coleman Law PC, pro hac vice, Theodore Walter Maya, Ahdoot & Wolfson, P.C. & Tina Wolfson, Ahdoot & Wolfson, P.C. Ford Motor Company, Defendant, represented by Michael Lovejoy Turrill -- michael.turrill@hoganlovells.com -- Hogan Lovells US LLP, David Jonathan Robbins -- david.robbins@hoganlovells.com -- Hogan Lovells US LLP, Gregory Lee Schuck -- gschuck@huielaw.com -- Huie Fernambucq and Stewart LLP, pro hac vice, James Wright Clayton -- james.clayton@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice & Michael Kidney -- Michael.kidney@hoganlovells.com -- Hogan Lovells US LLP, pro hac vice. GEICO GENERAL: Court Certifies Class Under Rule 23 in Green Suit ---------------------------------------------------------------- In the case captioned YVONNE GREEN, WILMINGTON PAIN & REHABILITATION CENTER, and REHABILITATION ASSOCIATES, P.A., on behalf of themselves and all others similarly situated, Plaintiffs v. GEICO GENERAL INSURANCE COMPANY, Defendant, Case No. N17C-03-242 EMD CCLD (Del., Super.), the Delaware Superior Court grants the Plaintiffs' motion for class certification. The Plaintiffs sought certification of a class action under Superior Court Civil Rule 23. They allege that Geico uses two computerized models to evaluate personal injury protection claims of its insureds. The Plaintiffs argued that Geico uses the two models to deny valid claims without evaluating the facts underlying the claims. The Court held a hearing on the Motion on May 10, 2019.[BN] The Plaintiffs are represented by: Richard H. Cross, Jr., Esq. Christopher P. Simon, Esq. CROSS & SIMON, LLC Wilmington, DE The Defendant is represented by: Paul A. Bradley, Esq. Stephanie A. Fox, Esq. MARON MARVEL BRADLEY ANDERSON & TARDY LLC Wilmington, DE - and - George M. Church, Esq. Laura A. Cellucci, Esq. MILES & STOCKBRIDGE P.C. Baltimore, MD GOLDMAN SACHS: Court Appoints Lead Plaintiff, Counsel in Plaut Suit ------------------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion and Order granting AP7's Motion to Appoint Itself as Lead Plaintiff in the case captioned DANIEL PLAUT, individually and on behalf of all others similarly situated, Plaintiff, v. THE GOLDMAN SACHS GROUP, INC., LLOYD C. BLANKFEIN, HARVEY M. SCHWARTZ, and R. MARTIN CHAVEZ, Defendants. No. 18-CV-12084 (VSB). (S.D.N.Y.). Plaintiff Daniel Plaut brings this securities fraud class action lawsuit against the Goldman Sachs Group, Inc. and certain of its former senior officials. The action alleges that Goldman Sachs and its officers and directors violated Sections 10(b) and 20(a) of the Securities Exchange Act (Exchange Act), as well as the U.S. Securities and Exchange Commission (SEC) Rule 10b-5 promulgated pursuant to the Exchange Act. Plaintiff alleges that news reports of the alleged fraud and subsequent regulatory and criminal investigations caused the price of Goldman Sachs stock to fall, including investigations related to !Malaysia Development Bank (1MDB). AP7 moves to appoint itself as lead plaintiff and for approval of Kessler Topaz Meltzer & Check, LLP (Kessler Topaz) and Bernstein Litowitz Berger & Grossmann LLP (Bernstein Litowitz) as lead counsel and liaison counsel, respectively. In response to the above-mentioned motions for appointment of lead plaintiff and approval of lead counsel and Nebraska filed notices of non-opposition acknowledging that they do not possess the largest financial interest. Applicable Law The Private Securities Litigation Reform Act of 1995 (PSLRA) establishes a procedure for the appointment of a lead plaintiff in each private action that is brought as a plaintiff class action pursuant to the Federal Rules of Civil Procedure. The PSLRA provides that a district court must appoint as lead plaintiff the member or members that the court determines to be most capable of adequately representing the interests of class members. In determining which plaintiff has the greatest financial interest, courts consider four factors: (1) the number of shares purchased during the class period (2) the number of net shares purchased during the class period (3) the total net funds expended during the class period and (4) the approximate losses suffered. A potential lead plaintiff must also make a preliminary showing that it satisfies the typicality and adequacy requirements of Rule 23. The Rule 23 analysis in the context of appointment of lead plaintiff need not be as complete as would a similar determination for the purpose of class certification. The parties moving for lead plaintiff are only required to make a prima facie showing that they meet the Rule 23 prerequisites, and courts need only consider the typicality and adequacy requirements. With respect to typicality, courts consider whether the claims of the proposed lead plaintiff arise from the same conduct from which the other class members' claims and injuries arise. While the claims need not be identical, they must be substantially similar to the other members' claims. In considering the adequacy of a proposed lead plaintiff, a court must consider whether the proposed lead plaintiff: (1) maintains claims that conflict with those of the class (2) has sufficient interest in the outcome of the case and (3) has selected counsel that is qualified, experienced, and generally able to conduct the litigation in question. AP7 is the Presumptive Lead Plaintiff Comparing Financial Interests On February 28, 2019, Safe filed a notice of non-opposition, and on March 5, 2019, IWA Forest and Nebraska also filed notices of non-opposition, each acknowledging that it does not possess the largest financial interest. IWA Forest and Nebraska stated that if the court were to determine that those with larger financial interests are inadequate to represent the class, they would be willing and able to serve as lead plaintiff. Because, as discussed below, the Court finds that AP7 is an adequate lead plaintiff, the motions from Safe, IWA Forest, and Nebraska are denied. The remaining two movants, AP7 and Meitav, disagree about which movant has the greatest financial interest, in large part due to their use of different methodologies to calculate their respective financial losses. In support of its original motion, Meitav asserted that, during the Class Period, it purchased 119,596 shares of Goldman Sachs common stock and Goldman Sachs bonds in the principal amount of $2,916,000, that it retained 110,379 shares of Goldman Sachs common stock and Goldman Sachs bonds in the principal amount of $860,000, and that it expended $28,576,979 on Goldman Sachs securities. In support of its original motion, AP7 asserted that, during the Class Period, it purchased 179,082 shares of Goldman Sachs common stock and that it retained 100,069 shares of Goldman Sachs common stock, at a net cost of $21,375,937. In their respective original motions, both Meitav and AP7 applied a traditional last-in-first-out (LIFO) analysis, which is commonly used by courts in this district to calculate financial loss for lead plaintiff motions. Under the traditional LIFO approach, Meitav suffered the greatest financial loss. In its opposition brief, Meitav acknowledged that the certification it filed with its motion papers inadvertently omitted certain Class Period transactions in Goldman Sachs securities due to clerical error, which resulted in asserted losses of $3,160,824 when using the LIFO approach. AP7's opposition brief asserted that a modified LIFO approach to loss calculation is more appropriate. Applying the Supreme Court's finding in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 345 (2005), that securities actions only provide recoveries for economic losses that misrepresentations actually cause, courts have elected not to include losses incurred based on in-and-out trades that occur prior to any corrective disclosure. AP7 adds a new element to this approach, by excluding not only those in-and-out transactions that occurred prior to the first corrective disclosure pled in the complaint, but also all those in-and-out transactions that occurred in the periods between the various corrective disclosures during the Class Period. Using this approach, AP7 asserts that its losses are $3,095,533 and that Meitav's losses are $2,758,814. Under the circumstances presented here, in which the complaint alleges multiple partial disclosures over the course of the Class Period, courts have been reluctant to apply a Dura-based approach to calculating losses. AP7 has not identified a single court that has endorsed the approach it proposes, under which the Court would excludes in-and-out transactions that occurred subsequent to the first alleged corrective disclosure. Indeed, the appropriateness of employing Dura analysis at the lead plaintiff stage is subject to considerable dispute. In light of the various factual issues related to the causation of any losses occurring after the first corrective disclosure, the Court will not apply the approach proposed by AP7. However, under Dura, the Court is inclined to exclude in-and-out transactions prior to the first alleged corrective disclosure, i.e., those losses that each movant may have incurred before Defendants' misconduct was ever disclosed to the public. Neither movant has calculated its losses using this approach; however, a specific calculation is unnecessary because, for the reasons explained below, the Court finds that of the two remaining movants, only AP7 is an adequate lead plaintiff. The PSLRA provides that the most adequate plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class. There is a strong presumption in favor of approving a properly-selected lead plaintiff's decisions as to counsel selection. Having reviewed AP7's Memorandum of Law, as well as Silk's Declaration and the firms' resumes attached as Exhibits D and E to the Declaration, I find that Kessler Topaz, AP7's proposed lead counsel, and Bernstein Litowitz, AP7's proposed liaison counsel, will adequately and effectively represent the interests of the class. The attorneys at those firms have substantial experience with securities class action litigation. The Court approves AP7's selection and appoint Kessler Topaz as lead counsel and Bernstein Litowitz as liaison counsel. Because the Court finds that AP7 is the presumptive lead plaintiff and no other movants have rebutted that presumption, AP7's motion for appointment as lead plaintiff and for approval of lead counsel and liaison counsel is GRANTED. AP7 has a substantial financial interest and meets the typicality and adequacy requirements of Rule 23. A full-text copy of the District Court's September 19, 2019 Opinion and Order is available at https://tinyurl.com/y56vmosh from Leagle.com. Sjunde AP-Fonden, Lead Plaintiff, represented by Gerald H. Silk - jerry@blbglaw.com - Bernstein Litowitz Berger & Grossmann LLP. Daniel Plaut, Individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph Alexander Hood, II - ahood@pomlaw.com - Pomerantz LLP & Jeremy Alan Lieberman - jalieberman@pomlaw.com - Pomerantz LLP. Zuheir R. Safe, Movant, represented by Eduard Korsinsky - ek@zlk.com - Levi & Korsinsky, LLP. IWA Forest Industry Pension Plan, Movant, represented by Frederic Scott Fox, Sr.- ffox@kaplanfox.com - Kaplan Fox & Kilsheimer LLP. Nebraksa Investment Council, Movant, represented by Christopher J. Keller - ckeller@labaton.com - Labaton Sucharow, LLP, Eric James Belfi - ebelfi@labaton.com - Labaton Sucharow, LLP & Francis Paul McConville - fmcconville@labaton.com - Labaton & Sucharow LLP. Meitav Dash Provident Funds and Pension Ltd., Movant, represented by Jeremy Alan Lieberman , Pomerantz LLP. The Goldman Sachs Group, Inc., Lloyd C. Blankfein, Harvey M. Schwartz & R. Martin Chavez, Defendants, represented by Benjamin Robert Walker - walkerb@sullcrom.com - Sullivan & Cromwell, LLP, David Maxwell Rein - reind@sullcrom.com - Sullivan & Cromwell LLP, Matthew Alexander Schwartz - schwartzmatthew@sullcrom.com - Sullivan & Cromwell, LLP, Sharon L. Nelles - nelless@sullcrom.com - Sullivan & Cromwell, LLP & Stephen Hendrix Oliver Clarke - clarkest@sullcrom.com - Sullivan & Cromwell, LLP. GRUMA CORP: Arbitration Order in Maravilla FLSA Suit Affirmed ------------------------------------------------------------- In the case, JESUS MARAVILLA, Plaintiff-Appellant, v. GRUMA CORPORATION, doing business as Mission Tortillas, Defendant-Appellee, Case No. 18-20570 (5th Cir.), the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's order compelling arbitration. Maravilla and Gruma, entered into an agreement that Maravilla would sell and distribute food products to Gruma's retail customers within a specified area in Texas. The Agreement stated that Maravilla agrees that he is not an employee of Gruma for any purpose, but is an Independent sales and distribution contractor. The parties also mutually disclaimed and waived the right to pursue class action claims against one another. On April 26, 2018, Maravilla filed a purported collective Fair Labor Standards Act action against Gruma, along with a motion for class certification. On May 16, 2018, Gruma filed its first motion to dismiss, alternatively a motion to compel arbitration, as well as a motion to stay class certification proceedings. Maravilla then filed an amended complaint that added collective action allegations, among other allegations, and a response to Gruma's first motion to dismiss. He argued in his response that the Agreement containing the arbitration provision was invalid and unenforceable because he is "not proficient in written English" and therefore the contract was unconscionable. The same day that Maravilla filed his response, Gruma filed a second motion to dismiss seeking dismissal of Maravilla's claims and compelling arbitration. Gruma notes in its appellate brief that Maravilla did not file a separate response to Gruma's second motion to dismiss. However, the district court concluded that because Gruma's arguments regarding arbitration were "virtually identical" in both its first and second motion to dismiss, Maravilla's response applied with equal force to Gruma's second motion to dismiss. On July 26, 2018, the district court granted Gruma's second motion to dismiss and compelled Maravilla to arbitrate the dispute individually. Maravilla timely appealed, challenging the district court's dismissal of his claims in favor of arbitration. On appeal, he contends that the district court erred in its determination that the arbitration clause was enforceable. He maintains that the Agreement was unconscionable (and thus unenforceable) because it was in English and he "was not proficient in written English." Because Maravilla's unconscionability argument targets the Agreement as a whole and because he fails to specifically challenge the delegation clause, the Appellate Court treats the delegation clause as valid. Therefore, Maravilla's arguments regarding the validity of the Agreement, which includes the arbitration provision, must be submitted to the arbitrator. For these reasons, the Fifth Circuit affirms district court's order compelling arbitration. A full-text copy of the Court's Sept. 4, 2019 Order is available at https://is.gd/iZVyrS from Leagle.com. James Staley -- jim.staley@ogletree.com -- for Defendant-Appellee. Alfonso Kennard, Jr. -- alfonso.kennard@kennardlaw.com -- for Plaintiff-Appellant. Benjamin Robert Holland -- ben.holland@ogletree.com -- for Defendant-Appellee. Elizabeth Ruth Gift -- elizabeth.gift@ogletree.com -- for Defendant-Appellee. GULF2BAY SOFTWASH: Mejia Sues Over Unpaid Minimum, Overtime Wages ----------------------------------------------------------------- Marcos Mejia, on behalf of himself and others similarly situated, Plaintiff v. GULF2BAY SOFTWASH CORP., NORTH AMERICAN CHIMINEY & GUTTER CORP. DAVID F. JARETT, in his individual capacity, Defendants, Case No. 2:19-cv-05286-JMA-AKT (E.D.N.Y., Sept. 17, 2019), seeks to recover unpaid minimum and overtime wages that the Defendants owe the Plaintiff and similarly situated current and former non-exempt employees under the Fair Labor Standards Act, the New York Labor Law and the supporting New York State Department of Labor Regulations. The Defendants have profited at the expense of their current and former employees who performed labor for the Defendants' companies by failing to pay said workers the state and federal proper minimum wage and/or overtime wages for each hour they worked and overtime for hours over 40, and/or spread hours, Mr. Mejia alleges. The Defendants willfully violated the FLSA and the New York Labor Law by failing to pay its employees, including the Plaintiff, minimum wage and/or overtime pay compensation and/or spread of hours pay as required by federal and state law, says the complaint. The Plaintiff was a laborer working in a variety of positions ranging from exterior home washing to chimney repair. Gulf2Bay Softwash is a company engaged in the business of home exterior and detail washing.[BN] The Plaintiff is represented by: Delvis Melendez, Esq. LAW OFFICES OF DELVIS MELENDEZ, P.C. 90 Bradley Street Brentwood, NY 11717 Telephone: 631-434-1443 HEADWAY TECHNOLOGIES: Barbera Sues Over HDD Spring Price-fixing --------------------------------------------------------------- JOSEPH LA BARBERA, individually and on behalf of all those similarly situated, Plaintiff, v. HEADWAY TECHNOLOGIES, INC., HUTCHINSON TECHNOLOGY INC., MAGNECOMP PRECISION TECHNOLOGY PUBLIC CO. LTD., NAT PERIPHERAL (DONG GUAN) CO., LTD., NAT PERIPHERAL (H.K.) CO., LTD., NHK SPRING CO. LTD., NHK INTERNATIONAL CORPORATION, NHK SPRING (THAILAND) CO., LTD., NHK SPRING PRECISION (GUANGZHOU) CO., LTD., SAE MAGNETICS (H.K.) LTD., AND TDK CORPORATION, Defendants, Case No. 0:19-cv-02570-SRN-DTS (D. Minn., Sept. 20, 2019) is a Class Action Complaint against Defendants and their co-conspirators as a result of their unlawful conduct in contracting, combining, or conspiring to fix, raise, maintain, and/or stabilize prices of HDD suspension assemblies from approximately May 2008 to at least April 2016. Hard disk drives ("HDD") are incorporated into electronic devices, such as desktop computers, laptops, gaming consoles, MP3 players, printers, and copy machines, or sold as stand-alone storage devices. Suspension assemblies are an important component of the HDD because they hold the recording heads close to the disks and provide the electrical connection from the recording heads to the hard disk drives' circuitry. The complaint alleges that the Defendants and their co-conspirators participated in a combination and conspiracy to suppress and eliminate competition for HDD suspension assemblies by agreeing to rig bids for, and to fix, stabilize, and maintain the prices of HDD suspension assemblies sold in the United States and elsewhere. The combination and conspiracy engaged in by the Defendants and their co-conspirators was an unreasonable restraint of interstate and foreign trade and commerce in violation of the Sherman Antitrust Act, and state antitrust, unfair competition, consumer protection laws, and the common law of unjust enrichment. As a direct and proximate result of the anticompetitive and unlawful conduct, Plaintiff and the Classes paid more during the Class Period for HDD suspension assemblies than they otherwise would have paid in a competitive market, and have thereby suffered antitrust injury to their business or property, says the complaint. Plaintiff Joseph La Barbera is a resident of New York and purchased at least one HDD suspension assembly indirectly from at least one Defendant. Defendants are manufacturers and suppliers of HDD suspension assemblies throughout and into the United States.[BN] The Plaintiff is represented by: Shawn J. Wanta, Esq. Frances E. Baillon, Esq. BAILLON THOME JOZWIAK & WANTA LLP 100 South Fifth Street, Suite 1200 Minneapolis, MN 55402 Phone: (612) 252-3570 Fax: (612) 252-3571 Email: sjwanta@baillonthome.com febaillon@baillonthome.com - and - David P. McLafferty, Esq. MCLAFFERTY LAW FIRM, P.C. 923 Fayette Street Conchohocken, PA 19428 Phone: (612) 940-4000 Facsimile: (612) 940-4007 Email: dmclafferty@mclaffertylaw.com HEADWAY TECHNOLOGIES: Leff Sues Over HDD Spring Price-fixing ------------------------------------------------------------ JORDAN LEFF, JAMES SALLINGER, AND LAUREN SALLINGER, Plaintiffs, v. HEADWAY TECHNOLOGIES, INC.; HUTCHINSON TECHNOLOGY INC.; MAGNECOMP PRECISION TECHNOLOGY PUBLIC CO. LTD.; NAT PERIPHERAL (DONG GUAN) CO., LTD.; NAT PERIPHERAL (H.K.) CO., LTD.; NHK SPRING CO. LTD.; NHK INTERNATIONAL CORPORATION; NHK SPRING (THAILAND) CO., LTD.; NHK SPRING PRECISION (GUANGZHOU) CO., LTD.; SAE MAGNETICS (H.K.) LTD.; AND TDK CORPORATION, Defendants, Case No. 2:19-cv-12759-DML-DRG (E.D. Mich., Sept. 20, 2019) is a class action for damages, injunctive relief and other relief pursuant to federal antitrust laws, state antitrust, unfair competition, and consumer protection laws, and the laws of unjust enrichment against Defendants. Plaintiffs' claims arise from Defendants' unlawful agreement to eliminate competition, fix prices, and allocate markets for hard disk drive suspension assemblies ("HDD Suspension Assemblies") sold in the United States. Plaintiffs bring this antitrust action against the dominant manufacturers and suppliers of HDD Suspension Assemblies for engaging in a global anticompetitive conspiracy to fix prices and allocate market shares for HDD Suspension Assembles. At all relevant times, Defendant manufactured and sold HDD Suspension Assemblies throughout and into the United States. As of 2016, Defendants NHK and TDK, and their subsidiaries, were the leading manufacturers of HDD Suspension Assemblies with a combined worldwide market share in excess of 90 percent. The complaint asserts that Defendants and their co-conspirators have participated in a combination and conspiracy to suppress and eliminate competition for HDD Suspension Assemblies by agreeing to rig bids for, and to fix, stabilize, and maintain the prices of HDD Suspension Assemblies sold in the United States and elsewhere. The combination and conspiracy engaged in by Defendants and their co-conspirators was an unreasonable restraint of interstate and foreign trade and commerce in violation of the Sherman Antitrust Act, and state antitrust, unfair competition, consumer protection laws, and the common law of unjust enrichment. As a direct and proximate cause of Defendants' anticompetitive and unlawful conduct, Plaintiffs and the Classes paid more for HDD Suspension Assemblies that they otherwise would have paid in a competitive market, and have thereby suffered antitrust injury to their business or property, says the complaint. Plaintiff Jordan Leff is a resident of Michigan and purchased at least one HDD Suspension Assembly indirectly from at least one Defendant. Defendants are manufacturers and suppliers of HDD suspension assemblies throughout and into the United States.[BN] The Plaintiffs are represented by: Paul F. Novak, Esq. Diana Gjonaj, Esq. Gregory Stamatopoul, Esq. Tiffany Ellis, Esq. WEITZ & LUXENBERG P.C. 3011 West Grand Blvd, Suite 2150 Detroit, MI 48202 Phone: (313) 800-4170 Email: pnovak@weitzlux.com dgjonaj@weitzlux.com gstamatopoulos@weitzlux.com tellis@weitzlux.com - and - Peggy J. Wedgworth, Esq. Elizabeth McKenna, Esq. MILBERG PHILLIPS GROSSMAN LLP One Penn Plaza, 19th Floor New York, NY 10119 Phone: (212) 594-5300 Email: pwedgworth@milberg.com emckenna@milberg.com HEALTHY HEART: Underpays Route Drivers, Hernandez Suit Says ----------------------------------------------------------- FERNANDO HERNANDEZ, on behalf of himself and all others similarly situated, Plaintiffs, v. HEALTHY HEART FOOD SERVICE, INC., DANIEL SPIRA, and JONATHAN SPIRA, Defendants, Case No. 1:19-cv-05371 (E.D. N.Y., Sept. 20, 2019) is a case brought under the Fair Labor Standards Act. The Defendants knew that nonpayment or underpayment of minimum wage; nonpayment or underpayment of overtime; failing to provide Plaintiffs with legally-required wage notices; and failing to provide Plaintiffs with legally-required wage statements, would economically injure Plaintiffs. Yet, the Defendants committed the alleged acts knowingly, intentionally, and willfully, says the complaint. Plaintiff Hernandez was employed by Defendants as a route driver from approximately December 2016 to July 2019. Healthy Heart is engaged in the business of meal preparation and delivery to senior centers, day care facilities, private and public schools, and corporations.[BN] The Plaintiff it represented by: Michael P. Pappas, Esq. MICHAEL P. PAPPAS LAW FIRM, P.C. 3 Columbus Circle, 15th Floor New York, NY 10019 Phone: (646) 770-7890 Fax: (646) 417-6688 HILTON WORLDWIDE: Faces Winnie Suit in District of Puerto Rico -------------------------------------------------------------- A class action lawsuit has been filed against Hilton International of Puerto Rico, Inc., et al. The case is captioned as Jonathan Winnie, on behalf of himself and all others similarly situated, the Plaintiff, vs. Hilton Worldwide Holdings, Inc.; Hilton International of Puerto Rico, Inc.; Park Hotels & Resorts, Inc.; and Puerto Rico Caribe Lessee, LLC, the Defendants, Case No. 3:19-cv-01859-FAB (D.P.R., Sept. 11, 2019). The suit demands $1 million in damages. The case is assigned to the Hon. Judge Francisco A. Besosa. Hilton Worldwide Holdings Inc., formerly Hilton Hotels Corporation, is an American multinational hospitality company that manages and franchises a broad portfolio of hotels and resorts. Founded by Conrad Hilton in May 1919, the corporation is now led by Christopher J. Nassetta.[BN] Attorneys for the Plaintiff are: Jane A. Becker-Whitaker, Esq. BECKER & VISSEPO PO Box 9023914 San Juan, PR 00902-3914 Telephone: (787) 945-2406 Facsimile: (787) 585-3824 E-mail: jbw@beckervissepo.com HOMEFED CORP: Consolidation of Stockholder Cases Sought ------------------------------------------------------- The Plaintiffs in the Rose and Geser lawsuits ask the Court to rule that: 1. The Rose Action and the Geser Action are consolidated for all purposes into C.A. No. 2019-0592-KSJM (Consolidated Action). 2.The Consolidated Action shall bear this caption: IN RE HOMEFED CORPORATION STOCKHOLDER LITIGATION CONSOLIDATED C.A. No. 2019-0592-KSJM 3. All future filings shall be made in Consolidated C.A. No. 2019-0592-KSJM. 4. All papers and documents filed and served to date in each of the cases consolidated herein are deemed part of the record in the Consolidated Action. 5. The Plaintiffs must file a Consolidated Class Action Complaint. The Defendants need not move, answer or otherwise respond to the complaint filed in the Geser Action. Following the filing of the Consolidated Class Action Complaint, Co-Lead Counsel will confer with counsel for the Defendants concerning an appropriate schedule to move, answer, and/or otherwise respond to the Consolidated Amended Class Action Complaint. 6. All actions subsequently filed in or transferred to this Court that involve questions of law or fact similar to those contained in the Consolidated Actoin shall be automatically consolidated into the Consolidated Action. 7. When a case that properly belongs as part of the Consolidated Action is hereafter filed in the Court, this Court requests the assistance of counsel in calling the related action to the Court's attention and to assist it in ensuring that counsel in subsequent actions receives notice of this Order. 8. Plaintiffs Rose and Murray are appointed Co-Lead Plaintiffs in the Consolidated Action. 9. The law firms of Andrews & Springer LLC, 3801 Kennett Pike, Building C, Suite 305, Wilmington, Delaware 19807, Friedman Oster & Tejtel PLLC, 152 Bedford Road, Suite A, Katonah, New York 10536, and Labaton Sucharow LLP, 300 Delaware Avenue, Suite 1340, Wilmington, Delaware 19801, are appointed Co-Lead Counsel in the Consolidated Action. 10. The law firm of Wolf Popper LLP, 845 Third Avenue, New York, NY 10022 is hereby designated as Additional Counsel. 11. Co-Lead Counsel shall set policy for the plaintiffs for the prosecution of the Consolidated Action, delegate and monitor the work performed by plaintiff's attorneys, including Additional Counsel, to ensure there is no duplication of efforts or unnecessary expense, and have the authority to negotiate a settlement. Any agreement reached between counsel for the defendants and any of the Co-Lead Counsel shall be binding on all plaintiffs. 12. Co-Lead Counsel shall be responsible for coordinating all activities and appearances on behalf of plaintiffs and for the dissemination of notices and orders of this Court, as well as for communications to and from this Court. No motion, request for discovery or other pretrial or trial proceeding shall be initiated or filed by any plaintiff except through Co-Lead Counsel. The Rose Action is captioned as RICHARD ROSE and DENNIS E. MURRAY SR., On Behalf of Themselves and All Other Similarly Situated Former Stockholders of HOMEFED CORPORATION, the Plaintiffs, v. JOSEPH STEINBERG, BRIAN FRIEDMAN, JIMMY HALLAC, PATRICK BIENVENUE, PAUL BORDEN, TIMOTHY CONSIDINE, MICHAEL LOBATZ, and JEFFERIES FINANCIAL GROUP INC., the Defendants, Case No. 2019-0592-KSJM (Del. Chcy, Filed Aug. 1, 2019). The Geser Action is captioned as LOUIS GESER, the Plaintiff, vs. JEFFERIES FINANCIAL GROUP INC., JOSEPH S. STEINBERG, TIMOTHY M. CONSIDINE, AND MICHAEL A. LOBATZ, the Defendant, Case No. 2019-0681-AGB (Del. Chcy., Filed Aug. 21, 2019)[CC] Counsel for Richard Rose and Dennis E. Murray Sr., are: David M. Sborz, Esq. Peter B. Andrews, Esq. Craig J. Springer, Esq. ANDREWS & SPRINGER LLC 3801 Kennett Pike Building C, Suite 305 Wilmington, DE 19807 Telephone: (302) 504-4957 - and - John Vielandi, Esq. David MacIsaac, Esq. Ned Weinberger, Esq. LABATON SUCHAROW LLP 300 Delaware Ave., Suite 1340 Wilmington, DE 19801 Telephone: (302) 573-2540 - and - Jeremy S. Friedman, Esq. David F.E. Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 Telephone: (888) 529-1108 - and - D. Seamus Kaskela, Esq. KASKELA LAW LLC 18 Campus Boulevard, Suite 100 Newtown Square, PA 19073 Telephone: (888) 715-1740 Counsel for Louis Geser are: Carl L. Stine, Esq. WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Telephone: (212) 759-4600 - and - P. Bradford deLeeuw, Esq. ROSENTHAL, MONHAIT & GODDESS, P.A. 919 Market Street, Suite 1401 Wilmington, DE 19801 Telephone: (302) 656-4433 INDIANA: Court Dismisses Harmon Suit for Failure to State Claim --------------------------------------------------------------- In the case, DAVID J. HARMON, Plaintiff, v. ROBERT E. CARTER, DUSHAN ZATECKY, DUANE ALSIP, Defendants, Case No. 1:19-cv-03281-JRS-MJD (S.D. Ind.), Judge James R. Sweeney, II of the U.S. District Court for the Southern District of Indiana, Indianapolis Division, (i) dismissed the complaint; (ii) granted Mr. Harman's motion for leave to proceed in forma pauperis; (iii) denied the Plaintiff's motion to maintain suit as a class action; and (iv) denied the Plaintiff's motion for a temporary restraining order. Mr. Harman is a prisoner at the Pendleton Correctional Facility (Pendleton). He brings the civil rights action under 42 U.S.C. Section 1983. The complaint names these parties as Defendants: 1) Commissioner Robert E. Carter; 2) Warden Dushan Zatecky; and 3) Assistant Warden Duane Alsip. He sues each Defendant in his individual and official capacity. He seeks compensatory and punitive damages and injunctive relief. The Plaintiff alleges that Pendleton is overcrowded. He alleges that (i) the Warden and Assistant Warden have started double-bunking inmates; (ii) due to the overcrowding and being on lockdown, medical treatments have been delayed and denied; and (iii) many inmates have suffered from delayed treatment. The Plaintiff further alleges that Pendleton is understaffed which has led to denials of recreation and visitation. He alleges that violence among the prison inmates has increased. Also on his list of complaints is the number of hours between meals, that the nutritional value of meals is not adequate for grown men, and the kitchen equipment is not properly sanitized. Finally, he complains that the Indiana Department of Correction ("IDOC") has revised the grievance policies to make it more difficult for inmates to complete the process. He alleges that these conditions violate his Eighth Amendment rights. The matter is before the Court for resolution of the three motions by Mr. Harman--Motion for Leave to Proceed In Forma Pauperis, Motion to Maintain Suit as a Class Action, and Motion for Temporary Restraining Order--and for screening of his complaint pursuant to 28 U.S.C. Section 1915A(b). Judge Sweeney finds that the overarching problem with the Plaintiff's complaint is that he does not allege that he has suffered any compensable injury as a result of overcrowding or the other conditions he describes. Double-bunking in prison also is not per se unconstitutional. The Plaintiff alleges no violence or other injuries that he suffered as a result of double-bunking and overcrowding. His double-bunking claim is, thus, dismissed for failure to state a claim upon which relief can be granted. While the Plaintiff alleges generally that inmates are being denied adequate and timely medical care, the Judge finds the he does not allege that he has been denied any specific treatment. Absent an allegation that he has a serious medical condition and has been denied necessary treatment, the Plaintiff cannot state a viable Eighth Amendment claim for deliberate indifference. His denial of medical care claim is dismissed for failure to state a claim upon which relief can be granted. While nutritional food and opportunity for exercise are two of life's necessities, the Plaintiff has not also alleged that he has been denied meals on a regular basis, lost weight as a result of lack of food, been denied access to the commissary to purchase additional food, or been denied the ability to exercise in or outside of his cell. Again, because he has not alleged that he has suffered these or other types of harm, his inadequate food and recreation claims are dismissed for failure to state a claim upon which relief can be granted, rules the Court. The Court further orders that with respect to the change in the IDOC grievance policies, no action lies under Section 1983 unless a plaintiff has asserted the violation of a federal right. The Plaintiff's allegations of violations of or changes in IDOC policy does not support a claim under section 1983 and are therefore dismissed for failure to state a claim upon which relief can be granted. Finally, the complaint contains no allegations of personal wrongdoing on the part of Commissioner Carter. Any claim against Commissioner Carter is dismissed for failure to state a claim upon which relief can be granted. For these reasons, the complaint must be dismissed for failure to state a claim upon which relief can be granted, rules Judge Sweeney. The Judge granted Mr. Harman's motion for leave to proceed in forma pauperis to the extent that he is assessed an initial partial filing fee of $27.33 Mr. Harman will have through Oct. 4, 2019, to pay this sum to the clerk of the district court. Although Mr. Harman is excused from pre-paying the full filing fee, he still must pay the $350 filing fee when able. Next, to certify a class, a plaintiff must establish, among other things, that he will fairly and adequately protect the interests of the class. In nearly all instances, a pro se prisoner will not be an adequate class representative. The complaint is being dismissed for failing to state a claim upon which relief can be granted. For that reason and because the Plaintiff is pro se, the Judge denied the Plaintiff's motion to maintain suit as a class action. The Judge also denied the Plaintiff's motion for a temporary restraining order. Because the Plaintiff's complaint has been dismissed for failure to state a claim upon which relief may be granted, the Judge cannot conclude at this time that the Plaintiff is likely to prevail on any of his claims. The Plaintiff will have through Oct. 4, 2019, to either show cause why Judgment consistent with this Order should not issue or file an amended complaint which cures the deficiencies discussed in the Order. Any amended complaint would completely replace the original complaint and therefore must be complete. Any amended complaint must include the words "First Amended Complaint" and the proper case number, 1:19-cv-03281-JRS-MJD, on the first page. If the plaintiff fails to respond to this order to show cause, the case will be dismissed for failure to state a claim upon which relief can be granted, without further notice. A full-text copy of the Court's Sept. 4, 2019 Order is available at https://is.gd/WNVBQJ from Leagle.com. DAVID J. HARMON, Plaintiff, pro se. ROBERT E. CARTER, Defendant, pro se. DUSHAN ZATECKY, Defendant, pro se. DUANE ALSIP, Defendant, pro se. INDIANA: Court Junks Westville Inmate's Bid to Pursue Class Suit ----------------------------------------------------------------- The United States District Court for the Northern District of Indiana, South Bend Division, issued an Opinion and Order granting Leave to Proceed on a Claim for Money Damages in the case captioned LAWRENCE WHITFIELD, et al., Plaintiffs, v. WESTVILLE CORRECTIONAL FACILITY, et al., Defendants. Cause No. 3:19-CV-692-JD-MGG. (N.D. Ind.). Pursuant to 28 U.S.C. Section 1915A, this court must review the complaint and dismiss it if the action is frivolous or malicious, fails to state a claim, or seeks monetary relief against a defendant who is immune from such relief. In the complaint, Whitfield, who identifies as a member of the Moorish American community, alleges that Chaplain Walton and Chaplain Shultz discriminate against Moorish Americans at the Westville Correctional Facility by canceling religious services based on allegations of gang activity and drug trafficking. He also asserts that Chaplain Walton and Chaplain Shultz refuse to allow inmates to possess Moorish American religious materials outside of services or to make copies of Moorish American religious materials that are available at the facility, including the Holy Koran of the Moorish Temple Science of America. Whitfield seeks to file a class action on behalf of Moorish Americans at the Westville Correctional Facility. A class action may proceed only if the class representative will fairly and adequately represent the interests of the class. This case presents no exception as there is no indication that Whitfield has the necessary legal expertise or the professional qualifications to adequately represent the legal interests of others. Therefore, Whitfield may not pursue a class action in this case. Whitfield asserts that the defendants have violated his right to exercise his religion as a Moorish American. Prisoners have a right to exercise their religion under the Free Exercise Clause of the First Amendment. Nevertheless, correctional officials may restrict the exercise of religion if the restrictions are reasonably related to legitimate penological objectives, which include safety, security, and economic concerns. The Religious Land Use and Institutionalized Persons Act (RLUIPA) affords even broader protections than the First Amendment. This act prohibits governmental entities from imposing a substantial burden on the religious exercise of a person residing in or confined to an institution unless the government demonstrates that imposition of the burden on that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. A restriction imposes a substantial burden on an inmate's religious practice when it seriously violates or contradicts an inmate's religious beliefs. Though money damages and injunctive relief are available under the First Amendment, only injunctive relief is available under RLUIPA. Whitfield plausibly alleges First Amendment claims for money damages against Chaplain Walton and Chaplain Shultz for cancelling his religious services and restricting his access to religious materials. He also plausibly alleges First Amendment claims against Religious Director Libel and Commissioner Carter for prohibiting him from observing Fridays as his holy day of the week. However, Whitfield may not proceed on the allegations regarding departmental policy and the labelling him as a member of a black Muslim group because it is unclear how these allegations amount to a violation of his right to exercise his religion. For these reasons, the court: (1) GRANTS Lawrence Whitfield leave to proceed on a claim for money damages against Chaplain Walton and Chaplain Shultz for violating his rights under the Free Exercise Clause by cancelling his religious services and restricting his access to religious materials. (2) GRANTS Lawrence Whitfield leave to proceed on a claim for money damages against Religious Director Liebel and Commissioner Carter for violating his rights under the Free Exercise Clause by prohibiting him from observing Fridays as his holy day of the week. (3) GRANTS Lawrence Whitfield leave to proceed on a claim for injunctive relief under the Religious Land Use and Institutionalized Persons Act against Commissioner Carter in his official capacity for religious materials and for him to be allowed to observe Fridays as his holy day of the week. (4) DISMISSES the Moorish American Community and the Westville Correctional Facility; (5) DISMISSES all other claims. A full-text copy of the District Court's September 19, 2019 Opinion and Order is available at https://tinyurl.com/y5a22lo5 from Leagle.com. Lawrence Whitfield, Plaintiff, pro se. INTERNATIONAL MEDICATION: Brenes Seeks Minimum & Overtime Wages --------------------------------------------------------------- RAQUEL BRENES, individually, and on behalf of all others similarly situated, the Plaintiff, vs. INTERNATIONAL MEDICATION SYSTEMS, LTD., a Delaware corporation; and DOES 1 through 10, inclusive, the Defendants, Case No. 19STCV32241 (Cal. Super., Sept. 11, 2019), alleges that Defendants failed failed to pay minimum and regular rate wages, failed to pay overtime compensation, failed to provide meal periods, and failed to authorize and permit rest breaks under the California Labor Code. The Plaintiff worked for Defendants in Los Angeles County, California as a planning clerk from approximately October 2017 to April 2019. The Defendants classified Plaintiff as non-exempt from California's overtime requirements. During the statutory time period, the Plaintiff was typically scheduled to work five days in a workweek, and typically eight or more hours in a single workday, but the Defendants failed to pay Plaintiff for all hours worked. International Medication Systems operates as a specialty pharmaceutical company. The Company develops, manufactures, markets, and sells generic and proprietary injectable and inhalation products.[BN] Attorneys for the Plaintiff are: Kane Moon, Esq. H. Scott Leviant, Esq. Lilit Ter-Astvatsatryan, Esq. MOON & YANG, APC 1055 W. Seventh St., Suite 1880 Los Angeles, CA 90017 Telephone: (213) 232-3128 Facsimile: (213) 232-3125 E-mail: kane.moon@moonyanglaw.com scott.leviant@moonyanglaw.com lilit@moonyanglaw.com JUST ENERGY: Rosen Law Files Securities Fraud Suit -------------------------------------------------- Rosen Law Firm, a global investor rights law firm, announces it has filed a class action lawsuit on behalf of purchasers of the securities of Just Energy Group Inc. (NYSE: JE) from November 9, 2017 through August 19, 2019, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Just Energy investors under the federal securities laws. To join the Just Energy class action, go to http://www.rosenlegal.com/cases-register-1631.htmlor 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) Just Energy experienced customer enrollment and nonpayment issues; (2) Just Energy had not taken appropriate reserves to its trade receivables to reflect these issues, thereby rendering previously issued financial results it publicly disseminated materially false and misleading; (3) Just Energy lacked adequate internal controls over its financial reporting; and (4) 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.. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than September 30, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1631.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has secured hundreds of millions of dollars for investors. Contact: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 Website: www.rosenlegal.com Email: lrosen@rosenlegal.com pkim@rosenlegal.com cases@rosenlegal.com [GN] JUUL LABS: McFaull Sues Over Deceptive Marketing of Vape Products ----------------------------------------------------------------- JOHN MCFAULL, individually and on behalf of those similarly situated, Plaintiff v. JUUL LABS, INC., and PAX LABS, INC., Defendants, Case No. 5:19-cv-00378-DCR (E.D. Ky., Sept. 17, 2019), is an action for violation of the Kentucky Consumer Protection laws, fraud, unjust enrichment, failure to warn, breach of implied and express warranties, negligence, and public nuisance. This case arises out of the Defendants' false and deceptive sale, marketing, labeling and advertising of JUUL e-cigarette devices and JUUL pods which came into the market in 2015. The Plaintiff alleges that the Defendants knew that JUUL e-cigarettes were not safe under any circumstances for non-smokers and posed a risk of aggravating nicotine addiction in those already addicted to nicotine. The Defendants also knew that JUUL's nicotine solution could deliver more nicotine into the bloodstream than a cigarette, and did so more quickly than a cigarette. The Defendants were under a duty to disclose these material facts, but never did so, the Plaintiff contends. Instead, the Defendants continued to disseminate false, misleading and deceitful information to Plaintiff and the public on JUUL's website, interviews, in advertisements and through social media. The Defendants created an online culture and community targeted to young people, including minors, and designed to encourage JUUL use. The Defendants' advertisements have been wildly successful in disseminating false information, primarily to teens and young adults on social media platforms, says the complaint. The Plaintiff purchased and used a JUUL e-cigarette and/or JUUL Pods in Kentucky. Juul Labs, Inc. ("JUUL") is incorporated in Delaware, with its principal place of business in San Francisco, California.[BN] The Plaintiff is represented by: Barbara D. Bonar, Esq. BONAR, BUCHER & RANKIN, PSC 3611 Decoursey Avenue Covington, KY 41015 Telephone: (859) 431-3333 Facsimile: (859) 392-3900 E-mail: bdbonar@lawatbdb.com - and - Joseph G. Tekulve, Esq. 785 Ohio Pike Cincinnati, OH 45245 Telephone: (513) 752-0001 Facsimile: (513) 752-0289 E-mail: joetekulvelaw@gmail.com KARYOPHARM THERAPEUTICS: Mehdi Files Securities Class Action ------------------------------------------------------------ HEATHER MEHDI, individually and on behalf of all others similarly situated, Plaintiff v. KARYOPHARM THERAPEUTICS INC., MICHAEL G. KAUFFMAN, SHARON SHACHAM, JUSTIN A. RENZ, MICHAEL F. FALVEY, GAREN G. BOHLIN, MIKAEL DOLSTEN, SCOTT GARLAND, BARRY E. GREENE, MANSOOR RAZA MIRZA, DEEPA R. PAKIANATHAN, and KENNETH E. WEG, Defendants, Case No. 1:19-cv-11972-JGD (D. Mass., Sept. 17, 2019), is a securities class action brought on behalf of all persons or entities that purchased shares of Karyopharm's securities: (i) between March 2, 2017, and February 22, 2019, inclusive; (ii) in or traceable to the Company's public offering of common stock conducted on or around April 28, 2017; or (iii) in or traceable to the Company's public offering of common stock conducted on May 7, 2018. Karyopharm is a clinical-stage pharmaceutical company focused on the development of drugs for the treatment of cancer. The Company's lead drug candidate was selinexor, which is intended for the treatment of various types of cancer, including principally blood cancers. The claims asserted in the complaint are alleged against Karyopharm and certain of the Company's Officers, and Karyopharm's Board of Directors, including the directors that signed the Registration Statements for the Offerings, and arise under the Securities Act of 1933 and the Securities Exchange Act of 1934. This matter arises from the Defendants' material misrepresentations and omissions regarding results from clinical trials for selinexor's treatment of patients with certain types of blood cancer: the Phase 2 SOPRA trial ("SOPRA"), which evaluated selinexor for treatment of patients with acute myeloid leukemia ("AML"); and Part 2 of the Phase 2b STORM trial ("STORM"), which evaluated the safety and efficacy of selinexor in treating patients with multiple myeloma ("MM"). The Class Period begins on March 2, 2017, when the Company reported interim results from the SOPRA study. Specifically, the Company announced that the study did not reach statistical significance for overall survival among AML patients, the study's primary endpoint, and, as a result, the Company halted the trial. Despite Karyopharm's decision to halt the trial, the Company assured investors that selinexor was "well-tolerated" by patients and explained that there were "no new clinically significant adverse events in the patients receiving selinexor." The Company also continued moving forward with the STORM study and repeatedly touted selinexor's safety profile. The Company continued to tout the commercial prospects for selinexor and consistently described selinexor as having a "predictable and manageable tolerability profile" and a "very nice safety profile," and assured investors that it was "well tolerated" by patients. Karyopharm also claimed that selinexor had the potential to be used as a new treatment for MM, with limited and manageable side effects. As a result of these misrepresentations, Karyopharm shares traded at artificially inflated prices during the Class Period. The truth was revealed on February 22, 2019, when, in advance of an FDA advisory committee meeting to review Karyopharm's New Drug Application ("NDA") for selinexor and assess the drug's risks and benefits, the FDA released a briefing document expressing serious concerns about the safety and efficacy of selinexor (the "FDA Report"). Significantly, the FDA Report revealed that, contrary to Karyopharm's assurances, the previously cancelled SOPRA trial had resulted in "worse overall survival" for AML patients treated with selinexor, which "highlighted the toxicity of this drug." These disclosures caused the Company's stock price to decline from $8.97 per share to $5.07 per share, or more than 43%, on February 22, 2019. As a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's securities, the Plaintiff and other Class members have suffered significant losses and damages, says the complaint. The Plaintiff purchased Karyopharm securities at artificially inflated prices during the Class Period, the Plaintiff asserts.[BN] The Plaintiff is represented by: Glen DeValerio, Esq. Daryl Andrews, Esq. ANDREWS DEVALERIO LLP 265 Franklin Street, Suite 1702 Boston, MA 02110 Telephone: (617) 936-2796 E-mail: glen@andrewsdevalerio.com daryl@andrewsdevalerio.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com KERYX BIOPHARMACEUTICALS: Court Denies Certification in Karth ------------------------------------------------------------- The United States District Court for the District of Massachusetts issued a Memorandum and Order denies Plaintiffs' Motion for Class Certification in the case captioned TIM KARTH, on behalf of himself and others similarly situated, Plaintiffs, v. KERYX BIOPHARMACEUTICALS, INC. et al., Defendants. Civil Action No. 16-11745-DJC. (D. Mass.). Named Plaintiff Tim Karth (Karth) has filed this putative class action against Defendants Keryx Biopharmaceuticals, Inc. (Keryx) and certain of Keryx's former and current executives and directors alleging violations of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder (Count I) and Section 20(a) of the Exchange Act (Count II). Standard of Review Class Certification A class action may be certified only if (1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Where, as here, Named Plaintiff has moved to certify a class under Fed. R. Civ. P. 23(b)(3), the Court must also determine whether questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods. Ascertainability Before addressing the Rule 23(a) and (b) analysis, the Court must determine whether the scope of the class is appropriate, i.e., whether it is administratively feasible. A class must be determinable by stable and objective factors at the outset of a case very class member must be identified, but the class must be sufficiently ascertainable to permit a court to decide and declare who will receive notice, who will share in any recovery, and who will be bound by the judgment. The definition for the proposed class here identifies members by their purchase of Keryx securities during a defined time period. The Court, therefore, concludes that Karth has provided objective criteria for defining the class and has satisfied his initial burden of showing ascertainability. Rule 23(a) Requirements Numerosity The Court must now determine whether the class is so numerous that joinder of all members is impracticable. No minimum number of plaintiffs is required but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met. Karth contends, and Defendants do not dispute, that he has met his burden with respect to numerosity because during the proposed class period Keryx securities traded at such a high volume that the class necessarily includes at least hundreds of members. The Court concludes that the putative class satisfies the numerosity requirement. Commonality Karth also must demonstrate that there are questions of law or fact common to the class. Commonality is satisfied where the claims at issue depend upon a common contention of such a nature that it is capable of classwide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Karth asserts that the class shares common questions of law and fact, including whether Keryx violated federal securities laws through misrepresentation and/or omission of material facts and the scienter of the Individual Defendants. Defendants either do not object to commonality or contend that the proposed class lacks commonality for the same reasons it cannot satisfy the predominance inquiry set forth in Rule 23(b)(3). However, the predominance criterion is far more demanding than the commonality requirement. Here, the common questions among the class overcome the commonality requirement's low bar. The Court concludes that Karth has established commonality as to the proposed class and addresses Defendants' concerns regarding the predominance of common issues or questions affecting individual members in its later analysis of the Rule 23(b)(3) factors. Typicality and Adequacy As to the typicality requirement, Karth also must show that the claims or defenses of the representative parties are typical of the claims or defenses of the class. The representative plaintiff satisfies the typicality requirement when its injuries arise from the same events or course of conduct as do the injuries of the class and when plaintiff's claims and those of the class are based on the same legal theory. As to adequacy of the class representative, pursuant to Rule 23(a)(4), the Court considers whether the representative parties will fairly and adequately protect the interests of the class. The Court considers these separate Rule 23(a) factors together because Defendants challenge Karth's adequacy as the class representative because, in part, his claims are not typical of the proposed class he seeks to represent. Karth contends that his claims are typical of the class because he, like all proposed class members, purchased Keryx shares within the proposed class period between May 8, 2013 and August 1, 2016 and seeks recovery for damages suffered as a result of the alleged inflation of the market price he paid for those shares by the allegedly materially false statements and omissions of material facts by Defendants. Likewise, Karth says that his interests are perfectly aligned with the remainder of the class. Defendants argue that Karth is not a suitable representative of the class because he purchased Keryx shares on behalf of a trust in July 2016. Defendants maintain that Karth's status as representative of an allegedly defunct trust renders his claims susceptible to "unique defenses that would divert attention from the common claims of the class. Karth's purchase of shares as a trustee does not make him an inadequate representative. Defendants initially challenged Karth's standing to be a plaintiff at all here given Karth's own statement that the trust had been dissolved before the filing of the complaint. Further investigation by Karth, produced to Defendants, however, showed that the trust was never dissolved. The trustee argument thus appears to reflect an initial misunderstanding, now corrected, of the trust's status and, at most, harmless error in Karth's initial failure to identify himself as having purchased Keryx shares in his role as a trustee. Even assuming arguendo Karth would otherwise be an adequate representative for this class, he is not given the timing of his purchases and nature of his claims. The timing of Karth's purchase, however, presents a problematic issue with respect to defining the class period because of the existence of the February and April 2016 disclosures. Karth characterizes the February and April 2016 disclosures as identical to the disclosures about single source suppliers the Court analyzed in connection with the motion to dismiss. In deciding the motion to dismiss, however, the Court looked at the shift in disclosures from the March 2013 statement that there was a single contract manufacturer for Auryxia drug product to the later disclosures, from May 2013 through February 2016, which read, for instance, some of the third parties we employ in the manufacturing process are single source providers and held that the later in time disclosures were potentially misleading for their ambiguity as to the number of contract manufacturers Keryx was employing. The disclosures Defendants now have brought to the Court's attention are distinct from the disclosures analyzed in connection with the motion to dismiss because they are not ambiguous. Karth's argument that the February and April 2016 disclosures do no more than muddy the waters and left investors to guess which disclosures were accurate is, therefore, unavailing. In its ruling on the motion to dismiss, the Court wrote that a reasonable investor could have concluded from the ambiguous language regarding the number of contract manufacturers that Keryx had engaged multiple contract manufacturers to convert the API into tablets when in fact Keryx had not. Karth, who purchased shares in July 2016, therefore, purchased Keryx shares in a markedly different disclosure environment than other proposed class members who purchased shares as early as May 8, 2013. Such a different position is fundamental to the suit and goes to the heart of the litigation, namely, Karth not being a member of a sustainable class. This disparity creates a conflict between Karth and prospective class members, that threatens to overbalance the common interests of the class members as a whole. The Court, therefore, concludes Karth is not a suitable named plaintiff for reasons of atypicality and inadequacy. After the voluntary dismissal by named plaintiff Abraham Kiswani in April 2019, D. 104, Karth has become the sole Named Plaintiff remaining in the case. Having found that the timing of Karth's purchase makes his claims atypical from those of a majority of proposed class members and removes his standing to bring the claims on behalf of the proposed class and thus that Karth is an inadequate class representative, the Court declines to certify the proposed class given the lack of a named plaintiff. Due to the Court's conclusion as to adequacy and typicality, the Court need not proceed to address the Rule 23(b)(3) requirements of predominance and superiority, but does so here in the interest of completeness. Rule 23(b)(3) Superiority A putative class seeking certification under Rule 23(b)(3) also bears the burden of showing that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The Court considers four factors within the superiority inquiry: 1) the individual interests in controlling the prosecution of separate actions 2) any existing litigation already begun by class members; 3) the advantages or disadvantages of litigating the claims in the forum and 4) any particular difficulties in managing the class action. The first two factors weigh in favor of a class action given the lack of any record of particularized interest in directing the litigation from any individual and the lack of existing litigation concerning the same controversy. As to the latter two factors, the fact that Keryx is headquartered in Massachusetts is an advantage to this forum and there are no particular difficulties presented by the management of this class action. Defendants also do not challenge the superiority of a class action as a method of adjudicating the class claims here. A class action would be superior to litigation of individual claims by the multitudinous individual investors who purchased Keryx shares during the shortened class period. Rule 23(b)(3) Predominance Rule 23(b)(3) requires the Court to find that the questions of law or fact common to class members predominate over any questions affecting only individual members. The focus of the predominance inquiry is whether proposed classes are sufficiently cohesive to warrant adjudication by representation. When conducting a Rule 23(b)(3) analysis, the Court must determine whether there is reason to think that individualized questions will overwhelm common ones and render class certification inappropriate. This requires a district court to formulate some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case. Given that the class definition for the full period through August 1, 2016 cannot be sustained, Defendants' arguments as to price impact and Plaintiff's damages model no longer apply with full force. It is not clear that the predominance factor could be met here, particularly as to the class presently proposed. The Court cannot say that questions of law or fact common to this class predominate over any questions affecting individual members, particularly as to reliance and loss causation. The Court denies the motion to certify the proposed class. Accordingly, what remains are Karth's individual claims against Defendants, which the Court turns to now. A full-text copy of the District Court's September 23, 2019 Memorandum and Order is available at https://tinyurl.com/y3ytb76c from Leagle.com. Tim Karth, Plaintiff, represented by Jeffrey C. Block - jeff@blockesq.com - Block & Leviton LLP, Jacob A. Walker - jake@blockesq.com - Block & Leviton LLP & Nathaniel Silver -nate@blockesq.com - Block & Leviton LLP. Keryx Biopharmaceuticals, Inc, Ron Bentsur, Scott A Holmes, Gregory P Madison & James Oliviero, Defendants, represented by John F. Sylvia - JSylvia@mintz.com - Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC & Laurence A. Schoen - LASchoen@mintz.com - Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC. Richard J. Erickson, Movant, represented by Alan L. Kovacs , Law Office of Alan L. Kovacs, 2001 Beacon St Suite 106 Boston, MA 02135, pro hac vice. KIA MOTORS: Faces Maldonado Suit Over Defective Engine System ------------------------------------------------------------- PAULA MALDONADO and GAIL FITZGERALD, Plaintiffs v. KIA MOTORS AMERICA, INC; and DOES 1 through 10, inclusive, Defendants, Case No. 19STCV32982 (Cal. Super. Ct., Los Angeles Cty., Sept. 17, 2019), seeks to redress KMA's violations of California consumer fraud statutes, and to recover damages from the Defendant's breach of express warranty, breach of implied warranty, breach of the duty of good faith and fair dealing, and common law fraud. KIA MOTORS AMERICA, INC. was engaged in the business of designing, manufacturing, constructing, assembling, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in Los Angeles County. On October 25, 2012, the Plaintiffs purchased a 2013 Kia Optima vehicle identification number 5XXGN4A77DG139405, ("Subject Vehicle"), which was manufactured and or distributed by the Defendant. The Plaintiffs received an express written warranty, including, a 5-year/60,000 mile express bumper to bumper warranty, a 10- year/100,000 mile powertrain warranty which, inter alia, covers the engine and transmission. Subsequently, the Defendant provided a 10-year/120,000 mile warranty extension on 2.0 and 2.4L GDI engines (including the Subject Vehicle's engine). The Defendant undertook to preserve or maintain the utility or performance of the Subject Vehicle or to provide compensation if there is a failure in utility or performance for a specified period of time. The warranty provided, in relevant part, that in the event a defect developed with the Subject Vehicle during the warranty period, the Plaintiffs could deliver the Subject Vehicle for repair services to the Defendant's representative and the Subject Vehicle would be repaired. During the warranty period, the Subject Vehicle contained or developed defects, which substantially impair the use, value, or safety of the Subject Vehicle, the Plaintiffs allege. They contend that the Defendant knew since 2009, if not earlier, that the 2011-2019 KIA Optima, 2011-2019 KIA Sportage, 2012-2019 KIA Sorento, 2011-2019 Hyundai Sonata, and 2013-2019 Hyundai Santa Fe vehicles equipped with a 2.0 or 2.4L engine, including the 2013 Kia Optima ("KIA Vehicles") contained one or more design and/or manufacturing defects in their engines ("Engine Defect") that results in the restriction of oil flow through the connecting rod bearings, as well as to other vital areas of the engine. The defect, which typically manifests itself during and shortly after the limited warranty period has expired, will cause the KIA Vehicle to experience catastrophic engine failure, stalling while in operation and poses an unreasonable safety risk of non-collision fires all due to inadequate lubrication, according to the complaint. Furthermore, engine seizure often causes internal parts, such as the connecting rods, to break and a knock hole in the engine, permitting fluids to leak and ignite a fire. Specifically, the Defendant knew (or should have known) that the KIA Vehicles equipped with the 2.0 or 2.4L GDI engine had Engine Defect, says the complaint.[BN] The Plaintiffs are represented by: Tionna Dolin, Esq. STRATEGIC LEGAL PRACTICES, A PROFESSIONAL CORPORATION 1840 Century Park East, Suite 430 Los Angeles, CA 90067 Telephone: (310) 929-4900 Facsimile: (310) 943-3838 E-mail: tdolin@slpattorney.com KINKISHARYO INT'L: Armendariz Seeks Minimum & Overtime Wages ------------------------------------------------------------ NOE ARMENDARIZ, individually, and on behalf of all others similarly situated, the Plaintiff, vs. KINKISHARYO INTERNATIONAL, LLC a limited liability company; and DOES 1 through 10, inclusive, the Defendants, Case No. 19STCV32237 (Cal. Super. Sept. 11, 2019), alleges that Defendants failed to pay minimum and regular rate wages, overtime compensation, and provide meal periods as required under the California Labor Code. The Plaintiff worked for Defendants in Los Angeles County as a burning technician from approximately July 2017 to August 2019. The Defendants classified Plaintiff as non-exempt from California's overtime requirements. Also during the statutory time period, Plaintiff was typically scheduled to work 3 to 5 days in a workweek, and typically over 8 hours in a single workday. The Defendants failed to pay Plaintiff for all hours worked,the lawsuit says.[BN] Attorneys for the Plaintiff are: Kane Moon, Esq. H. Scott Leviant, Esq. Lilit Ter-Astvatsatryan, Esq. MOON & YANG, APC 1055 W. Seventh St., Suite 1880 Los Angeles, CA 90017 Telephone: (213) 232-3128 Facsimile: (213) 232-3125 E-mail: kane.moon@moonyanglaw.com scott.leviant@moonyanglaw.com lilit@moonyanglaw.com LG CHEM: Ninth Circuit Affirms Approval of Young Suit Settlement ---------------------------------------------------------------- In the case, KEVIN YOUNG; BRADLEY SELDIN; BRUCE STERMAN; CHARLES CARTE; BRIAN HANLON; NICHOLE M. GRAY; WOODROW CLARK II; REBECCA CERVENAK; JOHN RUSSO; MATTHEW J. MILLER; RACHEL L. MILLER; BRADLEY VAN PATTEN; BENJAMIN KRAMER; JAMES A. SMITH; ANGELA TURNER; KATHERINE A. WIRKUS; MICHAEL BARBAT; DAVID BROWNLEE; ROBERT ALAN DISHMAN; JOAN GOODMAN; DAVID MCAFEE; DAWN THOMPSON; THE STEREO SHOP; MICHELE CRIDEN; BRIAN CALEB BATEY; A-1 COMPUTERS, INC.; YEVGENIYA LISITSA, Esquire, Attorney; DANIEL MEIR; KIMBERLY RAIMONDO; DRAKE DAILEY-CHAWLIBOG; MEGHAN DOWLING; MICHAEL HULL; DAVID SHAWN; DEWEESE SMITH; REGINA SHANNON; RENEE MEIER; FIRST CHOICE MARKETING, INC.; MICHAEL JAMES DOYLE; REBECCA COHEN; ELLIS GREENSPAN; LOUIS MESSINA; PATRICE NEALON; ELIZABETH PORTER; DAWN POTOVIN; DAWN POTOVIN; MARYLIN SHARP; GRACE SHIRE; DAN WEHKING; STEVEN WILEY; NANCY RUAN; CHAD CONOVER; SUSANNE HILLER; ROBERT HYAMS; MATTHEW WEINER; GERASIMOS MOLFETAS; THOMAS R. TUOHY; BEVERLEE SCLAR; DAVID PETREE; MIKE KATZ-LACABE; JAMES O'NEIL; LLOYD RANOLA; ALFRED H. SIEGEL; TOM PHAM; KATHLEEN TAWNEY; CALVIN CALKINS; AUTOMATION ENGINEERING, LLC; EDWARD KLUGMAN; GENE POWERS; RICHARD S.E. JOHNS; BRANDON MARTINEZ; ANGELO MICHAEL D'ORAZIO; RON NELSON, Jr.; UNIVISION-CRIMSON HOLDING, INC.; PIYA ROBERT ROJANASATHIT; MICHAEL S. WILSON; RITZ CAMERA & IMAGE, LLC; STEVEN BUGGE; A. KEITH THROWER; KRISTINA YEE; JOSEPHY G. O'DANIEL; JASON AMES; WILBUR FRANKLIN; BEATRIZ HERNANDEZ; LINDA LINCOLN; KRISTIN STARR BARNES; MARK BERGERON; MICHAEL JANUSA; ADAM RONQUILLO; TERRI WALNER; ANNA JAWOR; KRISTA LEPORE; THE NATIONWIDE GROUP; MATT BRYANT; LAURA GALLARDO; SPENCER HATHAWAY; ALEXANDRA LE; ROBERT MCGRANAHAN; PATRICK MCGUINNESS; ERINN TOZER; DAVID GIBBONS; VALENTINA JUNCAJ; VIOLET SELCA; CORIE LEVY; SCOTT BEALL; THEODORE WOLFENDALE; CHRISTOPHER BESSETTE; ALEXANDER C. EIDE; POLLY COHEN; SAN FRANCISCO COMMUNITY COLLEGE DISTRICT; INDIRECT PURCHASER PLAINTIFFS; DIRECT PURCHASER PLAINTIFFS; ERIC MCGUIRE; KCN SERVICES, LLC; BRAD MARCUS; BASIL BOURQUE; KEVIN LITWIN; MELINDA LAWSON; DAVID TOLCHIN; UNITED STATES OF AMERICA; KAREN STROMBERG; CITY OF PALO ALTO; CITY OF RICHMOND; MATTHEW SABA; SHAWN SELLERS; TRACFONE WIRELESS, INC.; ACER, INC.; ACER AMERICA CORPORATION; GATEWAY, INC.; GATEWAY U.S. RETAIL, INC.; MICROSOFT MOBILE INC.; MICROSOFT MOBILE OY; DELL, INC.; DELL PRODUCTS L.P., Plaintiffs-Appellees, CHRISTOPHER ANDREWS, Objector-Appellant, v. LG CHEM LTD.; LG CHEM AMERICA, INC.; SONY CORPORATION; SONY ELECTRONICS, INC.; SAMSUNG SDI AMERICA; HITACHI LTD.; HITACHI MAXELL, LTD; MAXELL CORPORATION OF AMERICA; SONY ENERGY DEVICES CORPORATION; SAMSUNG SDI CO, LTD.; HITACHI AMERICA LTD.; HITACHI MAXELL CORPORATION OF AMERICA; TOSHIBA AMERICA, INC; TOSHIBA CORPORATION; LG CHEM AMERICA; LG CORPORATION; SAMSUNG ELECTRONICS AMERICA, INC.; SAMSUNG ELECTRONICS COMPANY, LTD.; SAMSUNG SDI CHUSIK HOESA; SONY CORPORATION OF AMERICA; SANYO ELECTRIC CO., INC; NEC TOKIN CORPORATION; NEC CORPORATION; LG CHEMICAL LTD.; LG CHEMICAL AMERICA, INC.; HITACHI MAXELL, LTD.; PCM, Defendants-Appellees, Case No. 17-15795 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's approval of the class-action settlement agreement between the Indirect Purchaser Plaintiffs ("IPPs") and Defendants Sony Corp., Sony Energy Devices Corp., and Sony Electronics Inc. The district court approved the class-action settlement agreement between the IPPs and Sony. Andrews, a class member objecting to the settlement, appealed. He argued that the notice of settlement was deficient, errors in the settlement agreement and the district court's approval order rendered the settlement unfair, and the class members were denied access to crucial documents because they were improperly sealed. The Appeals Court finds that district court properly found that the notice of settlement was sufficient, and Andrews' contention that a settlement notice cannot precede the formulation of a claims process is unsupported. The rest of Andrews's attacks on the notice are inconsistent with the record or irrelevant, adds the Court. Hence, the district court did not err in finding the notice satisfied due process and Rule 23. Next, the Appeals Court rules that the district court did not abuse its discretion in approving the settlement agreement. Andrews raised a host of objections to the settlement agreement and district court's approval order, including that the $19.5 million settlement amount was unjustifiably low compared to the $177 million in total alleged damages attributable to Sony. The Court finds those arguments to be unpersuasive. With respect Andrews argument that many documents were improperly sealed, preventing the class members from accurately assessing the settlement's fairness, the Appeals Court finds that objectors were able to access all the information relevant to the settlement. Several documents Andrews identifies are not sealed. Rather, they are publicly available with limited redactions. For the documents that are sealed, Andrews offers nothing persuasive to counter the district court's finding that the documents pertinent to the Plaintiffs' settlement with the Sony defendants, motion for approval, and motion for reimbursement of costs were all readily available. Thus, the district court did not abuse its discretion. In light of the foregoing, the Court accordingly affirmed. A full-text copy of the Court's Sept. 4, 2019 Memorandum is available at https://is.gd/UeyYmc from Leagle.com. M.J. BROTHERS: $525K Rodriguez Suit Settlement Has Final Approval ----------------------------------------------------------------- In the case, VICTOR RODRIGUEZ, et al., Plaintiffs, v. M.J. BROTHERS, INC., et al., Defendants, Case No. 1:18-cv-00252-LJO-SAB (E.D. Cal.), Magistrate Judge Stanley A. Boone of the U.S. District Court for the Eastern District of California granted the Plaintiffs' motion for final approval of a class action settlement. Plaintiffs Rodriguez, Estreberto Valdez, Miguel Esparza and Francisco Banda are former employees of M.J. Brothers, a California company doing business in Tulare, California. The Defendant is co-owned and managed by Eduardo Martin, Daniel Martin, Fernando Martin, and Ronald Martin. M.J. Brothers provides machinery and personnel to client dairies at their premises to harvest, transport, and weigh wheat and corn that is used as animal feed. The Martins oversee the company's operations and make decisions regarding scheduling, working conditions, and hiring and terminating employees. They visit and oversee operations at the numerous customer worksites and handle administration of many of the company's affairs. Four groups of workers are employed by MJ Brothers: 1) shop workers who service trucks and service and clean agricultural equipment at their shop; 2) farm equipment operators who work at harvesting and pruners; 3) truck drivers who transport wheat and corn from the field to the dairy; and 4) weighers who weigh the wheat and corn for purposes of billing clients. Plaintiff Rodriguez was employed as a truck driver from May 2008 to May 2016. Plaintiff Valdez was employed as a truck driver from 2010 to May 2016. Plaintiff Esparza was employed as an operator and shop worker from 2008 to December 2016. Plaintiff Banda was employed as a truck driver and shop worker for over 15 years until May 2017. On Feb. 16, 2018, the Plaintiffs filed the action on behalf of themselves and all others similarly situated against the Defendants alleging violation of the Fair Labor Standards Act ("FLSA"). and California labor law. Plaintiffs allege failure to pay overtime in violation of the FLSA; failure to pay meal and rest periods in violation of California Labor Code section 226.7; failure to provide itemized wage statements in violation of California Labor Code section 226(a); failure to pay for reporting time in violation of Industrial Wage Orders 4, 9, and 14; failure to pay waiting time penalties in violation of California Labor Code section 201, 202, and 203; unfair business practices in violation of California Business and Professions Code section 17200 et seq. and they are seeking civil penalties under the California Private Attorney's General Act ("PAGA"). On Dec. 4, 2018, the parties filed a notice of settlement of the class and collective actions. On Feb. 4, 2019, a motion for preliminary approval of the class action settlement and a stipulation to file a first amended complaint was filed. The first amended complaint was filed on Feb. 5, 2019. On March 8, 2019, a findings and recommendations issued recommending granting in part and denying in part the motion for preliminary approval of the class action settlement. On March 13, 2019, the Defendants consented to the jurisdiction of a United States magistrate judge and filed a stipulation for further proceedings on the motion for preliminary approval. On March 14, 2019, the stipulation was approved and the findings and recommendations were vacated. On March 15, 2019, the matter was reassigned to Magistrate Judge Boone for all purposes. On April 17, 2019, the Plaintiffs filed a supplement to the motion for preliminary approval of the class action settlement. An order granting the motion for preliminary approval was filed on April 24, 2019. On July 24, 2019, a motion for final approval of the class action settlement was filed along with proof of service of the motion on the California Labor and Workforce Development Agency ("LWDA"). On Aug. 16, 2019, the Defendants filed a statement of non-opposition to the motion requesting that the Court grants final approval of the settlement. Under the settlement agreement, the settlement class is defined as all persons who are or were employed in California by the Defendants as non-exempt (i) shop workers, (ii) farm equipment operators and pruners, (iii) truck drivers, and (iv) weighers at any point during the Class Period and who do not properly and timely opt out of the Settlement Class by having requested exclusion. There are approximately 185 Settlement Class Members. The class period is defined as any time between Feb. 16, 2014 and May 27, 2018. The settlement agreement provides for a settlement fund of 525,000 to resolve all claims of the settlement class for the alleged failure to provide meal and rest breaks and pay wages, penalties, and attorney fees and costs. The Defendants will pay the employer's share of the payroll taxes separately. Prior to any settlement funds being paid to the eligible class members, deductions to the common fund will be made for service awards to the named Plaintiffs, an award of attorney fees and costs to the class counsel, all costs of settlement administration, and a PAGA payment to the LWDA. The settlement fund will be funded by six separate installments with the first payment of $87,500 to be made within 180 days from the date of final approval of the settlement. The following payments will be made six months after the previous payment. In the event that a payment is not made the entire amount will be immediately due and payable. Notice of default will be given by mail and fax and no other action will occur until after 10 days have lapsed during which time the Defendants have the right to cure any default. The settlement fund will be distributed in three installments. The first installment will be distributed within 30 days of receipt of the first payment from the Defendants. This installment will be distributed to pay the costs of claims administration, the PAGA payment to the LWDA, and the attorney's costs in the action. The second distribution is to be made within 30 days after the claims administrator receives the third payment from the Defendants. This payment will be used to begin paying settlement awards to the class. The third distribution will be made within 30 days after the sixth installment payment is received. This distribution will pay the remaining settlement awards to the class in proportionate shares, the named class member incentive payments, and the class counsel's attorney fees. Any undistributed funds from checks that are not cashed will escheat to the California Division of Labor Standards Enforcement of Unpaid Wages Fund to be held in the name of and for the benefit of the class member. The claims administrator will pay from the common fund attorney fees in the amount of $131,250; costs of $12,500, and $5,000 to each of the named Plaintiffs. The net settlement fund is to be allocated in the following manner: 20% to unpaid wage claims; 80% to statutory penalties and interest; and $10,000 to PAGA penalties. The settlement administrator will pay the LWDA $7,500 in PAGA penalties. The net settlement fund will be distributed to the members of the settlement class and FLSA class. The funds will be distributed based upon the number of payroll periods that the class member worked. Each class member will be paid the amount after applicable state and federal taxes are withheld. The settlement administrator will issue a W-2 for the payment of unpaid wages and a Form 1099 for the portion that is allocated to statutory penalties and interest. The Defendants agree not to oppose the application for attorney fees or costs by the class counsel. The Plaintiffs seek final approval of the class action settlement as fair, reasonable and adequate under Rule 23(e) of the Federal Rules of Civil Procedure, and as a fair and reasonable resolution of a bona fide dispute under the FLSA; certification of the Rule 23 class and of the collective action class under 29 U.S.C. Section 216(b); approval that the class notice and FLSA notice complied with law and due process; an enhancement award of $3,500 for each named plaintiff; and an award of attorney fees in the amount of $131,250 and costs of $11,694. Magistrate Judge Boone finds that the Rule 23(a) prerequisites and Rule 23(b)(3) requirements are met for the settlement class. She further finds that the requirements are met for certification of the FLSA class under the FLSA. The Judge also finds that the terms of the Settlement Agreement are fair, reasonable, and adequate under Rule 23(e), and are a fair and reasonable resolution of a bona fide dispute under the FLSA. She finally approved the settlement agreement. Upon completion of administration of the settlement agreement, the claims administrator will provide written certification of such completion to the Court and the counsel for the parties. Class representatives Victor Rodriguez, Estreberto Valdez, Miguel Esparza, and Francisco Banda are each awarded an incentive award of $3,500, to be paid from the gross settlement fund. The class counsel is awarded attorney fees in the amount of $131,250 and costs of $11,694, to be paid from the gross settlement fund. The Magistrate finds that an allocation of $10,000 of the gross settlement fund to the PAGA claims is reasonable. The claims administrators will pay $7,500 (75% of the allocation) to the California Labor and Workforce Development Agency. The claims administrator will be paid $22,500 from the gross settlement fund for the cost of notice and claims administration. She finally approved and ordered the payment of those amounts be made from the net settlement proceeds in accordance with the terms of the Settlement Agreement. 12. The claims administrator will send any unclaimed funds to the State of California Controller's Office, Unclaimed Property Fund, in accordance with California law be held in the name of and for the benefit of the class members under California's escheatment laws. The Magistrate entered judgment in favor of the Plaintiffs and against the Defendants, and approved the terms of the settlement agreement. She dismissed the action with prejudice. Each side will bear its own costs and attorney fees, except as provided by the settlement agreement and set forth in the Order. The Clerk of the Court is directed to close this action. A full-text copy of the Court's Aug. 21, 2019 Order is available at https://is.gd/WSdzJq from Leagle.com. Victor Rodriguez, on behalf of themselves and all others similarly situated, Estreberto Valdez, on behalf of themselves and all others similarly situated, Miguel Esparza, on behalf of themselves and all others similarly situated & Francisco Banda, on behalf of themselves and all others similarly situated, Plaintiffs, represented by John Edward Hill, Law Offices Of John E. Hill, A Professional Corporation & Enrique Martinez, Law Offices of John E. Hill. M.J. Brothers, Inc., a California Corporation, Eduardo Martin, Daniel Martin, Fernando Martin & Ronald Martin, Defendants, represented by Faith Lisle Driscoll -- fdriscoll@theemployerslawfirm.com -- Barsamian & Moody, Patrick Moody -- pmoody@theemployerslawfirm.com -- Barsamian and Moody & Ronald H. Barsamian -- ronbarsamian@aol.com -- Barsamian & Moody. MACROGENICS, INC: Hill Sues over Share Price Drop ------------------------------------------------- TODD HILL, 20469 Shaffer Road Fredericktown, OH 43019, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, vs. MACROGENICS, INC. 9704 Medical Center Drive Rockville, MD 20850; SCOTT KOENIG c/o MACROGENICS, INC. 9704 Medical Center Drive Rockville, MD 20850; and JAMES KARRELS c/o MACROGENICS, INC. 9704 Medical Center Drive Rockville, MD 20850, the Defendants, Case No. 8:19-cv-02713-GJH (D. Md., Sept. 13, 2019), is a securities fraud class action on behalf of all purchasers of MacroGenics common stock between February 6, 2019 and June 3, 2019, inclusive. The claims are asserted against MacroGenics and certain of its officers who made materially false and misleading statements during the Class Period. 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. A critical component of the Phase III SOPHIA trial was measuring the progression-free survival ("PFS") and overall survival ("OS") rates in breast cancer patients administered margetuximab. Throughout the Class Period, the 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, the Defendants concealed material information and/or failed to disclose that: (a) the Company had conducted the PFS and first interim 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 and significant result and the interim OS Kaplan-Meier curves crossed in several spots (thereby violating the constant hazard assumption) and separated late. According to the complaint, the Defendants' Class Period conduct had its intended effect, with MacroGenics' common stock trading 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%. The Kaplan–Meier estimator, also known as the product limit estimator, is a non-parametric statistic used to estimate the survival function from lifetime data. In medical research, it is often used to measure the fraction of patients living for a certain amount of time after treatment. On June 4, 2019, during the ASCO annual meeting in Chicago, Illinois, the Company disclosed additional data for the SOPHIA trial. In the Company's presentation, MacroGenics revealed to the public 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 $3.13 per share to close at $15.58 per share on June 4, 2019, a decline of 17%. On June 5, 2019, the price of the Company's stock declined another 6% as a result of defendants' June 4, 2019 disclosures concerning the SOPHIA trial, the lawsuit says.[BN] Attorneys for the Plaintiff are: Steven D. Silverman, Esq. Andrew C. White, Esq. Joseph F. Murphy, Jr., Esq. William N. Sinclair, Esq. SILVERMAN THOMPSON SLUTKIN & WHITE LLC 201 N. Charles Street, 26th Floor Baltimore, MD 21201 Telephone: 410 385 2225 Facsimile: 410 547-2432 E-mail: ssilverman@mdattorney.com awhite@mdattorney.com jmurphy@mdattorney.com bsinclair@mdattorney.com - and - Trig R. Smith, Esq. Brian E. Cochran, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: 619 231-1058 Facsimile: 619 231-7423 E-mail: trigs@rgrdlaw.com bcochran@rgrdlaw.com - and - Brian Schall, Esq. SCHALL LAW FIRM 1880 Century Park East, Suite 404 Los Angeles, CA 90067 Telephone: 310/301-3335 Facsimile: 310/338-0192 E-mail: brian@schallfirm.com MEREDITH CORPORATION: 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 Meredith Corporation (NYSE:MDP) 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 May 10, 2018 and September 4, 2019, inclusive (the "Class Period"), are encouraged to contact the firm before November 5, 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. Meredith overinflated the profitability of the Time Inc. merger. In fact, the Company was forced to make significant investments in the Time business to improve it. These investments negatively impacted the Company's earnings. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Meredith, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. Contact: Brian Schall, Esq. Sherin Mahdavian, Esq. The Schall Law Firm Tel: 310-301-3335 Cell: 424-303-1964 Website: www.schallfirm.com Email: info@schallfirm.com [GN] MIDLAND CREDIT: Leedeman Sues over Debt Collection -------------------------------------------------- PEGGY IRENE LEEDEMAN, individually and on behalf of all others similarly situated, the Plaintiff, vs. MIDLAND CREDIT MANAGEMENT, INC., a Kansas corporation; and DOES 1 through 10, inclusive, the Defendants, Case No. 19CV354554 (Cal. Super., Sept. 12, 2019), seeks statutory damages against Defendants arising from their routine practice of sending initial written communications which do not contain the notice required by the California Fair Debt Buying Practices Act and California Civil Code. As a result, Defendants have engaged in unlawful acts in connection with their attempt to collect charged-off consumer debts from Plaintiff and the Class. Midland is regularly engaged in the business of purchasing charged-off consumer debts for collection purposes. Midland is a "debt collector" as that term is defined by California Civil Code, the lawsuit says.[BN] Attorneys for the Plaintiff are: Fred W. Schwinn, Esq. Raeon R. Roulston, Esq. Matthew C. Salmonsen, Esq. CONSUMER LAW CENTER, INC. 1435 Koll Circle, Suite 104 San Jose, CA 95112-4610 Telephone: (408) 294-6100 Facsimile: (408) 294-6190 E-mail: fred.schwinn@sjconsumerlaw.com MOON RIDGE: W.D. Mo. Certifies Class in Morris Suit --------------------------------------------------- In the case, DAWN MORRIS, et al., Plaintiffs, v. MOON RIDGE FOODS, LLC, et al., Defendants, Case No. 18-CV-03219-SRB (W.D. Mo.), Judge Stephen R. Bough of the U.S. District Court for the Western District of Missouri, Southern Division, granted the Plaintiff's Motion for Class Certification. On June 7, 2019, Morris and the putative class members filed their First Amended Class Action Complaint, alleging the Defendants violated the Worker Adjustment and Retraining Notification Act of 1988, by failing to give them at least 60 days advance written notice before terminating their employment. The Plaintiffs request back pay and benefits under the Employee Retirement Income Security Act of 1974, for 60 working days following the termination of their employment, as provided under the WARN Act. The Plaintiff sought class certification under Federal Rules of Civil Procedure 23(a) and 23(b)(3) and the specific statutory provision contemplating class treatment of claims under the WARN Act. On Sept. 3, 2019, the parties filed a Stipulation Regarding Class Certification. Upon review of the parties' joint Stipulation Regarding Class Certification and Proposed Class Notice, Judge Bough finds that the requirements of Rule 23(a) and 23(b)(3) are satisfied, as well as the notice requirements of Rule 23(c)(2)(B). He certified a class comprised of all former employees who worked at or reported to the facility located at 5305 Highway H Pleasant Hope, MO 65725 (the Facility) until they were laid off, furloughed and/or terminated, without cause on their part, on or about Jan. 11, 2018, within 30 days before that date or in the 60 days thereafter, as part of, or as the reasonably expected consequence of, the mass layoff and/or plant closing occurring on or about Jan. 11 and 12, 2018, and who do not file a timely request to opt-out of the class. The Judge appointed (i) Morris as the Class Representative; and (ii) The Gardner Firm, P.C., Lankenau & Miller LLP, and Rouse Frets White Goss Gentile Rhodes, P.C. as the Class Counsel. Judge Bough approved the proposed form of Notice to the Class submitted with the parties' joint Stipulation of Class Certification. No later than 14 business days following entry of the Order, the Defendants will provide the Class Counsel with an electronic spreadsheet containing the names and last known addresses of the former employees encompassed by the Class. The Class Counsel will mail the notice within 21 business days of entry of te Order, to the proposed members of the Class at their last known addresses as shown on the Class Spreadsheet. The Class Members who wish to opt-out of the Class in the matter must complete the opt-out form, included with the Class Notice, and must sign and mail that opt-out form to The Gardner Firm, P.C., P.O. Box 3103, Mobile, Alabama 36652, Attn: Mary E. Olsen, so that it is post-marked no later than 30 days after the due date on which the Class Notice was mailed and received by Ms. Olsen within seven days of that date. All requests for exclusion post-marked more than 30 days after the date on which the Class Notice was mailed or received by Ms. Olsen more than seven days after that date will not be effective, and any person who sends a late request will be a member of the Class in the Action and will be bound in the same way and to the same extent as all the other Class Members. Within five days after the last date on which a Class Member may timely opt-out, the Class Counsel will serve and file a sworn statement listing the names of any persons who have timely opted out of the class. A full-text copy of the Court's Sept. 4, 2019 Order is available at https://is.gd/sv6W8y from Leagle.com. Dawn Morris, Plaintiff, represented by Christopher Lee Kurtz -- ckurtz@rousepc.com -- Rouse Frets White Goss Gentile Rhodes, PC, Mary E. Olsen -- molsen@thegardnerfirm.com -- The Gardner Firm, pro hac vice, Michael Vance McCrary -- vmccrary@thegardnerfirm.com -- The Gardner Firm, pro hac vice & Randall L. Rhodes -- rrhodes@rousepc.com -- Rouse Frets White Goss Gentile Rhodes, PC. Moon Ridge Foods, LLC, Heritage Foods, LLC & Vero Foods, LLC, Defendants, represented by David R. Bohm -- dbohm@dmfirm.com -- Danna McKitrick, P.C. & Katherine Mary Flett -- kflett@dmfirm.com -- Danna McKitrick PC. NASSAU COUNTY, NY: Dismissal Order in Falk Suit Affirmed -------------------------------------------------------- In the case, JEFFREY P. FALK, ETC., Appellant, v. NASSAU COUNTY, ET AL., Respondents, Case No. 2017-13305, 2018-05977, Index No. 600868/17 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, Second Department, dismissed Falk's appeal from the orders entered Oct. 3, 2017 and Jan. 23, 2018. In a putative class action, inter alia, for declaratory and injunctive relief, the Plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered Oct. 3, 2017, and (2) an order of the same court entered Jan. 23, 2018. The order entered Oct. 3, 2017, insofar as appealed from, (a) granted those branches of the Defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss so much of the first cause of action as sought to compel the Defendants to disgorge all fees collected pursuant to Nassau County Administrative Code Section 6-33.0 from Jan. 4, 2016, to the present, and to dismiss the second, third, and fourth causes of action, alleging unjust enrichment, conversion, and money had and received, respectively, and (b) denied the Plaintiff's application for leave to amend the complaint. The order entered Jan. 23, 2018, insofar as appealed from, upon reargument, adhered to the determination in the order entered Oct. 3, 2017, granting those branches of the Defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss so much of the first cause of action as sought to compel the Defendants to disgorge all fees collected pursuant to Nassau County Administrative Code Section 6-33.0 from Jan. 4, 2016, to the present, and to dismiss the second, third, and fourth causes of action. According to the complaint in the action, the Falk purchased a home in Nassau County in 2016. He alleges that he paid a title company $1,255 to record his deed and mortgage with the County, $450 of which represented fees necessary to obtain two tax map certification letters from the County Clerk as required under Section 6-33.0 of the Nassau County Administrative Code ("NCAC"). In 2017, the Plaintiff commenced the putative class action against the County and the Nassau County Department of Assessments. The first cause of action sought a judgment declaring, inter alia, that the fees imposed pursuant to NCAC Section 6-33.0 are excessive and not reasonably necessary to accomplish the Defendants' responsibility to maintain the County's registry. The first cause of action also sought to compel the Defendants to disgorge all fees collected pursuant to NCAC Section 6-33.0 from Jan. 4, 2016, to the present. The second, third, and fourth causes of action alleged unjust enrichment, conversion, and money had and received, respectively. The Defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint, inter alia, on the ground that the Plaintiff failed to allege that he paid the fees under protest. In opposition, the Plaintiff conceded that the fees were paid without formal protest, but nevertheless maintained that the payment was the result of a mistake of fact or, alternatively, was made under duress. The Supreme Court partially denied the Defendants' motion, determining that the complaint sufficiently stated a cause of action for a judgment declaring, inter alia, that the fees imposed pursuant to NCAC Section 6-33.0 are excessive and not reasonably necessary to accomplish the Defendants' responsibility to maintain the County's registry. However, it granted those branches of the Defendants' motion which were to dismiss so much of the first cause of action as sought to compel the Defendants to disgorge all fees collected pursuant to NCAC Section 6-33.0 from Jan. 4, 2016, to the present, and to dismiss the causes of action alleging unjust enrichment, conversion, and money had and received. Upon reargument, the court adhered to its determination granting those branches of the Defendants' motion. The Plaintiff appeals. The Court finds that it is undisputed that the Plaintiff did not pay the fees under protest. Viewing the facts alleged in the complaint as true, and according the Plaintiff the benefit of every possible favorable inference, the payment was not made under duress. Accordingly, it agrees with the Supreme Court's determination, upon reargument, adhering to its prior determination granting that branch of the Defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the first cause of action as sought to compel the defendants to disgorge fees collected pursuant to NCAC Section 6-33.0. It also agrees with the Supreme Court's determination, upon reargument, adhering to its prior determination granting those branches of the Defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging unjust enrichment, conversion, and money had and received. Based on the foregoing, the Court dismissed the appeal from the order entered Oct. 3, 2017, as the portion of that order denying the Plaintiff's application for leave to amend the complaint is not appealable as of right and leave to appeal has not been granted, and the remainder of the order has been superseded by the order entered Jan. 23, 2018, made upon reargument. It affirmed the order entered Jan. 23, 2018 insofar as appealed from. One bill of costs is awarded to the Defendants. A full-text copy of the Court's Aug. 21, 2019 Decision and Order is available at https://is.gd/B4vEx6 from Leagle.com. McLaughlin & Stern LLP, New York, NY (Lee S. Shalov -- lshalov@mclaughlinstern.com -- and Wade C. Wilkinson of counsel), for appellant. Jared A. Kasschau, County Attorney, Mineola, NY (Christi Marie Kunzig and Robert F. Van der Waag of counsel), for respondents. NATIONSTAR MORTGAGE: Settlement in Zaklit Suit Has Final Approval ----------------------------------------------------------------- In the case, ALFRED ZAKLIT AND JESSY ZAKLIT, individually and on behalf of all others similarly situated, Plaintiffs, v. NATIONSTAR MORTGAGE LLC and DOES 1 through 10, inclusive, and each of them, Defendants, Case No. 5:15-CV-02190-CAS-KK (C.D. Cal.), Judge Christina A. Snyder of the U.S. District Court for the Central District of California granted the Plaintiffs' Motion for an Order Granting Final Approval of Class Action Settlement, Conditionally Certifying Proposed Settlement Class, Approving Motion for Attorneys' Fees and Costs, and granting Incentive Award. On March 4, 2019, the Court entered an Order Granting Preliminary Approval of Settlement, resulting in certification of the provisional Settlement Class of all individuals who, from Oct. 23, 2014 to May 1, 2016, while physically present in California and using a cellular device with a California area code, participated for the first time in an outbound telephone conversation with a representative of Defendant or its agent who were recording the conversation without first informing the individual that the conversation was being recorded. No objections have been made, timely or otherwise, pursuant to the Class Notice sent to the Settlement Class members, nor did any objectors appear at the time of the hearing. The matter having come before the Court for hearing pursuant to the Order of the Court dated Aug. 19, 2019, for approval of the settlement set forth in the Settlement Agreement and Release. Due and adequate notice have been given to the Settlement Class Members as required in said Order, and the Court has considered all papers filed and proceedings therein. Judge Snyder finds the Settlement was entered into in good faith, that the settlement is fair, reasonable and adequate, and that the Settlement satisfies the standards and applicable requirements for final approval of the class action settlement under California law, including the provisions of Fed. Rule Civ. Proc. 23. Accordingly, she finally approved the Settlement in all respects, and directed the Parties to implement and consummate the Settlement Agreement according to its terms and provisions. Upon entry of the Order, compensation to the participating Settlement Class Members will be effected pursuant to the terms of the Settlement. In addition to any recovery that the Plaintiffs may receive under the Settlement, and in recognition of the Plaintiffs' efforts and risks taken on behalf of the Settlement Class, the Judge approved the payment of a Service Award to the Plaintiffs, in the amount of $10,000 per Class Representative. She approved the payment of attorneys' fees to the Class Counsel in the sum of $1,625,000, and the reimbursement of litigation expenses in the sum of $25,046.52. She also approved and ordered payment in an amount commensurate with Epiq Systems, Inc.'s actual costs, and not to exceed $200,000 to Epiq Systems, Inc. for performance of its settlement claims administration services. Upon completion of administration of the Settlement, the Parties will file a declaration setting forth that claims have been paid and that the terms of the Settlement have been completed. The Judgment is intended to be a final disposition of the action in its entirety, and is intended to be immediately appealable. A full-text copy of the Court's Aug. 21, 2019 Final Order is available at https://is.gd/g0CZeC from Leagle.com. Alfred Zaklit, individually and on behalf of all others similarly situated & Jessy Zaklit, individually and on behalf of all others similarly situated, Plaintiffs, represented by Meghan Elisabeth George, Law Offices of Todd Friedman PC, Thomas Edward Wheeler, Law Offices of Todd M Friedman PC, Todd M. Friedman -- tfriedman@toddflaw.com -- Law Office of Todd M Friedman PC, Adrian Robert Bacon -- abacon@toddflaw.com -- Law Offices of Todd M Friedman PC & Asaf Agazanof -- asaf@lawasaf.com -- Asaf Law APC. Nationstar Mortgage LLC, Defendant, represented by Erik Wayne Kemp -- ek@severson.com -- Severson and Werson APC, John B. Sullivan -- jbs@severson.com -- Severson and Werson APC, Mary Kate Sullivan, Severson and Werson APC & Laszlo Ladi, Jr., Severson and Werson APC. NAVY FEDERAL: Fourth Circuit Appeal Initiated in Lambert Suit ------------------------------------------------------------- Plaintiff Ruby Lambert filed an appeal from a Court ruling in the lawsuit titled Ruby Lambert v. Navy Federal Credit Union, Case No. 1:19-cv-00103-LO-MSN, in the U.S. District Court for the Eastern District of Virginia at Alexandria. The nature of suit is stated as other contract actions. The appellate case is captioned as Ruby Lambert v. Navy Federal Credit Union, Case No. 19-1993, in the United States Court of Appeals for the Fourth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Opening Brief and Appendix are due on October 22, 2019; and -- Response Brief is due on November 21, 2019.[BN] Plaintiff-Appellant RUBY LAMBERT, individually and on behalf of all others similarly situated, is represented by: Andrew Joseph Guzzo, Esq. Kristi Cahoon Kelly, Esq. Casey Shannon Nash, Esq. KELLY GUZZO PLC 3925 Chain Bridge Road Fairfax, VA 22030 Telephone: (703) 424-7576 E-mail: aguzzo@kellyguzzo.com kkelly@kellyguzzo.com casey@kellyguzzo.com Defendant-Appellee NAVY FEDERAL CREDIT UNION is represented by: Don Bradford Hardin, Jr., Esq. DAVIS WRIGHT TREMAINE, LLP 1919 Pennsylvania Avenue, NW Washington, DC 20006-3401 Telephone: (202) 973-4238 E-mail: bradfordhardin@dwt.com NERIUM INT'L: Sept. 18, 2018 Arbitration Order in Jia Clarified --------------------------------------------------------------- In the case, HELEN JIA, an individual, and SARAH SORMILLON, an individual, and all those similarly situated, v. NERIUM INTERNATIONAL, LLC., et al, Case No. 3:17-CV-3057-S (N.D. Tex.), Judge Karen Gren Scholer of the U.S. District Court for the Northern District of Texas, Dallas Division, granted in part and denied in part Defendants Nerium, Jeff Olson, Renee Olson, and Amber Olson Rourke's Motion to Reopen Case and for Temporary Restraining Order and Preliminary Injunction Staying Class Arbitration. On Dec. 19, 2017, the Defendants moved for an order compelling Plaintiffs Jia and Sormillon to arbitrate their claims on an individual basis in the arbitration proceedings which are already underway before the American Arbitration Association ("AAA"). On Sept. 18, 2018, the Court granted the motion to compel arbitration and provided that the arbitrator will decide whether a given claim must be arbitrated and that any challenges to the enforceability or scope of the Arbitration Policy must be decided by the arbitrator. After the Court administratively closed the case pending arbitration, the Plaintiffs allegedly filed three arbitrations before the AAA. Their third demand was for, among other things, a determination as to the arbitrability of the claims on a class basis. In the first two arbitrations, the Defendants moved for a summary adjudication of the class waiver provision, seeking a determination that the Plaintiffs' claims needed to be arbitrated individually. On June 24, 2019, Arbitrator James J. Juneau entered an order in the first of the two cases denying the Defendants' motion for a summary adjudication of the class waiver provision as moot, because Jia was no longer asserting any claims in the arbitration proceeding on a class-wide, class action or multiple complaining-party basis. The Arbitrator did not overrule the Defendants' objections to class arbitration, instead finding that these should more properly be raised and adjudicated separately in the proceeding where the Plaintiffs were asserting class action claims. As to the Plaintiffs' third demand for arbitration, the Defendants objected to the filing of the class arbitration as administratively improper on April 26, 2019. The AAA responded to the Defendants' argument by letter on July 9, 2019, stating that the Plaintiffs met the filing requirements by filing a demand for class arbitration but that the parties' contentions have been made a part of the file and will be forwarded to the arbitrator upon appointment, at which time the parties may submit their jurisdictional or arbitrability arguments to the arbitrator for determination. Thereafter on Aug. 8, 2019, the AAA reaffirmed the positions articulated in its July 9, 2019, letter, and the Defendants filed the present Motion . The Defendants ask the Court to reopen the case to either (1) clarify the Court's Sept. 18, 2018, order granting the Defendants' motion to compel arbitration on an individual basis, or, in the alternative, (2) issue a temporary restraining order and preliminary injunction staying the class arbitration. To be clear, the Court previously found that the Defendants have provided sufficient evidence to establish that a contract, including an arbitration provision, exists between the parties. That same agreement provides that the arbitration will be conducted before a single arbitrator and will not be conducted on a class-wide, class action or multiple-complaining party basis. Judge Scholer holds that the Court could not compel class arbitration that the parties expressly rejected. Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he or she has not agreed to submit. It is particularly true of class arbitration, which must be premised on consent to be consistent with the FAA. The Defendants moved for a Temporary Restraining Order and Preliminary Injunction as alternative relief to the Court clarifying that it previously compelled arbitration on an individual basis. Because she grants the Motion for Clarification, the Judge denies as moot the Motion as to the request for a temporary restraining order and preliminary injunction. Consequently, she does not address the Plaintiffs' argument as to why a temporary restraining order or preliminary injunction is not warranted in the case. Finally, the Court previously held that clear and unmistakable evidence establishes the parties' intent to delegate threshold questions to an arbitrator, including questions regarding the validity and scope of the arbitration provision itself. No party moved for reconsideration of the Court's order and the Judge will not needlessly disturb it. Moreover, the Judge did not rethink delegation as to any issue. Rather, she today merely clarifies that (1) the Court was tasked with determining the issue of class arbitration, and (2) its Sept. 18, 2018, order compelled arbitration on an individual basis. Any other threshold question has been delegated to the arbitrator and the Court is without power to decide it. For the reasons discussed , Judge Scholer granted the the Motion to reopen the case and to clarify the Court's Sept. 18, 2018, order. She denied as moot the Motion as to the request for a temporary restraining order and preliminary injunction. The matter is remanded to arbitration on an individual basis. The action will be stayed and administratively closed pending the outcome of arbitration. The Judge Court directed the Clerk of Court to administratively close the case until such time as the Court orders it to be reopened. A full-text copy of the Court's Aug. 21, 2019 Memorandum Opinion and Order is available at https://is.gd/heXxTs from Leagle.com. Helen Jia, an individual & Sarah Sormillon, an individual and all those similarly situated, Plaintiffs, represented by Blake J. Lindemann -- blake@lawbl.com -- Lindemann Law Firm APC, pro hac vice, Jamie Jean McKey -- jmckey@kendalllawgroup.com -- Kendall Law Group PLLC & Joe Kendall -- jkendall@kendalllawgroup.com -- Kendall Law Group PLLC. Nerium International LLC, a Texas Limited Liability Company, Jeff Olson, an individual, Renee Olson, an individual & Amber Olson Rourke, an individual, Defendants, represented by Joshua A. Huber, Blank Rome LLP, Anahit Tagvoryan -- atagvoryan@blankrome.com -- Blank Rome LLP, pro hac vice, Harrison Maxwell Brown -- hbrown@blankrome.com -- Blank Rome LLP, pro hac vice, Mike Margolis -- margolis@winlaw.com -- Blank Rome LLP, pro hac vice, Monica Wiseman Latin, Carrington Coleman Sloman & Blumenthal LLP, Naki Margolis -- nmargolis@blankrome.com -- Blank Rome LLP, pro hac vice & Parker Lee Graham , Carrington Coleman Sloman & Blumenthal LLP. Nerium Skincare Inc, a Texas Corporation, Nerium Biotechnology Inc & Natural Technology Inc, doing business as Naturtech, Defendants, represented by Jonathan R. Mureen , Squire Patton Boggs (US) LLP, Alexander J. Toney , Squire Patton Boggs LLP, Brian Matthew Gillett, Squire Patton Boggs (US) LLP & Samuel Genovese, Squire Patton Boggs (US) LLP. Michael Shouhed, an individual, Defendant, represented by Jeffrey S. Jacobson -- jjacobson@KelleyDrye.com -- Kelley Drye & Warren LLP, pro hac vice, Daniel H. Charest, Burns Charest LLP, Mallory Toby Biblo, Burns Charest LLP & William James Jackson, Kelley Drye & Warren LLP. NESTLE INC: Loses Bid to Junk Class Action Over 'No GMO' Label -------------------------------------------------------------- Martin Macias Jr, writing for Courthouse News Service, reports that a federal judge on September 19 denied a bid by food and beverage giant Nestle to toss a consumer class action claiming the company violated federal and state laws by applying its unverified "No GMO" label to products. California resident Jennifer Latiff claims in her 2018 lawsuit that Nestle USA's "No GMO Ingredients" label deceived her and other consumers into purchasing products falsely described as being free of genetically modified organisms. Latiff claims she bases her purchasing decisions on whether products have been verified by third-party groups -- such as the Non-GMO Project -- as being free of genetically modified ingredients or parts of animals that were fed GMO food. Nestle's Lean Cuisine Marketplace frozen meal and Coffee-Mate Natural Bliss creamer were among the products Latiff says she purchased in supermarkets. By creating its own seal, Nestle violated the Federal Trade Commission's food certification guidelines and California's unfair competition laws, Latiff says in her complaint. Nestle moved to dismiss the lawsuit, claiming Latiff lacked standing to bring the suit and could not demonstrate "real and immediate threat" of injury. But U.S District Judge Otis D. Wright II disagreed, writing in an 9-page order September 19 suffered harm by relying on Nestle's label when making her purchases. "Since plaintiff alleges that she relied on defendant's label, thereby paying higher market prices than she would have otherwise paid, plaintiff has standing," Wright wrote. Wright also ruled that because any "reasonable consumer" could be deceived by the labels, Nestle must also face claims it violated California's Consumer Legal Remedies Act. In a statement, Nestle said its "No GMO Ingredients" claim is backed up by SGS, "a world leader in third-party inspection, verification, testing and certification." "While we are disappointed with this ruling, it is purely procedural in nature and is in no way determinative of the merits of the plaintiff's allegations, which remain unproven," Nestle said. "Our product labels declaring the absence of GMO ingredients are accurate, comply with FDA and USDA regulations, and provide consumers with information to help them make informed purchasing decisions." Latiff's attorney Daniel Warshaw, Esq. of Pearson, Simon & Warshaw did not respond to a request for comment on the ruling. [GN] NESTLE USA: Ct. Denies Bid to Dismiss Latiff False Advertising Suit ------------------------------------------------------------------- The United States District Court for the Central District of California issued an Order denying Defendant's Motion to Dismiss in the case captioned JENNIFER LATIFF, on behalf of herself and all others similarly situated, Plaintiff, v. NESTLÉ USA, INC., Defendant. Case No. 2:18-CV-06503-ODW (JPRx). (C.D. Cal.). Plaintiff, a resident of Oxnard, California, alleges that she purchased one or more of Defendant's products labeled with its No GMO Ingredients seal in Oxnard and Ventura during the class period. Plaintiff alleges that Defendant violated the Federal Trade Commission guidelines by creating its own deceptive seal that was affixed to products which falsely represented that the product is certified as non GMO by a neutral, third party, when in fact the seal was the work of Defendant itself. LEGAL STANDARD To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2). Rule 8(a)(2) requires a short and plain statement of the claim showing that the pleader is entitled to relief. For a complaint to sufficiently state a claim, its factual allegations must be enough to raise a right to relief above the speculative level. STANDING Plaintiff bears the burden of establishing standing under Article III by meeting the following three elements. First, by relying on Defendant's misrepresented statements, plaintiff must have suffered a cognizable injury in fact. Second, there must be a causal connection between the conduct complained of and the injury. Lastly, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Here, Defendant argues that Plaintiff does not have standing to pursue injunctive relief because she has not met the first element. Specifically, Defendant alleges that Plaintiff cannot demonstrate a real and immediate threat of repeated injury in the future required under Article III. However, the Ninth Circuit has previously held that injury-in-fact is met when consumers suffer an economic injury as a result of false advertising claims, specifically noting that: Consumers suffer an injury-in-fact for Article III purposes when, as a result of false advertising, they purchase a product `when they otherwise would not have done so. Plaintiff claims that she and members of the Class would not have purchased a product bearing the No GMO Ingredients seal had they known that Defendant was using misleading labels. When given a choice between comparable products, Plaintiff purposefully chooses non-GMO products verified by an independent third-party when making purchasing decisions and relies on packaging representations to determine if products are certified as non-GMO by independent third parties. Since Plaintiff alleges that she relied on Defendant's label, thereby paying higher market prices than she would have otherwise paid, Plaintiff has standing. Plaintiff sufficiently alleges standing. UNFAIR COMPETITION (FIRST CAUSE OF ACTION) Plaintiff alleges that Defendant designed the false, misleading and deceptive No GMO Ingredients label with the intent to sell, distribute and increase the consumption of its Products bearing the No GMO Ingredients label. Plaintiff further alleges that Defendant's business acts and practices are unlawful under the California Consumers Legal Remedy Act (CLRA). In general, to bring a CLRA claim, the plaintiff must show that: (1) the defendant's conduct was deceptive and (2) that the deception caused plaintiff to be harmed. In the class context, a CLRA claim requires each class member to have an actual injury caused by the unlawful practice. Here, Plaintiff alleges that the Defendant's No GMO Ingredients seal impersonates the Non-GMO Project seal, and is misleading and deceptive to consumers. Regardless of any aesthetic similarities between the logos, the Non-GMO Project seal is held to different standards than Defendant's No GMO seal. By using a seal similar to the Non-GMO Project's seal, Plaintiff argues that Defendant creates consumer confusion because Defendant's standards are far less than those required to earn the legitimate Non-GMO's seal. Defendant avoids the Non-GMO Project's feed standard by using its own, self-created No GMO Ingredients seal, thereby creating confusion and deceiving consumers. Given that Plaintiff deliberately selected and purchased purported non-GMO products from among comparable products, Plaintiff has alleged that she suffered harm by relying on Defendant's misleading seal in purchasing its products. Plaintiff has sufficiently stated a claim as to this cause of action. FALSE ADVERTISING (SECOND CAUSE OF ACTION) Plaintiff alleges that Defendant misleadingly and deceptively represents that the Products were validated by an independent third-party, when, in fact, they were not. These materials misrepresented and/or omitted the true nature and quality of No GMO Ingredients Products. California's False Advertising Law outlaws the making or dissemination of any statement concerning property or services that is untrue or misleading.Whether an advertisement is misleading is determined by asking whether a reasonable consumer would likely be deceived. However, in a false advertising case, the advertisement itself is the primary evidence to determine whether the advertisement is misleading. Plaintiff alleges that Defendant's No GMO Ingredients Label is deceptive when ingredients in many of Defendant's Products are derived from GMOs. For example, Defendant's Products containing milk come from cows fed with GMO grains. These products would not qualify for the Non-GMO Project's seal. As such, if products are made with milk from animals fed with GMO feed and contains a No GMO Ingredients Label, it is plausible that consumers would be misled. In sum, Plaintiff has adequately alleged that Defendant's No GMO Ingredients Label could deceive a reasonable consumer, and Plaintiff has sufficiently stated a claim as to this cause of action. CONSUMERS LEGAL REMEDIES ACT (THIRD CAUSE OF ACTION) Under the CLRA, a reasonable consumer is not expected to know how to inspect or judge a product or know the process of the products' preparation or manufacture. Accordingly, the CLRA is liberally construed and applied to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection. Plaintiff alleges that Defendant violated and continues to violate the CLRA. Specifically, Plaintiff alleges that Defendant violated California Civil Code sections 1770(a)(2), (7), and (16). Section 1770(a)(2) prohibits the unlawful act of misrepresenting the source, sponsorship, approval, or certification of goods or services. Section 1770(a)(7) prohibits representing that goods or services are of a particular standard, quality, or grade if they are of another and section 1770(a)(16) bans representing that the subject of a transaction has been supplied in accordance with a previous representation when it has not. Here, Plaintiff alleges that Defendant misrepresented the character and quality of its No GMO Ingredients Label. For the reasons previously provided, Plaintiff has sufficiently stated a claim under CLRA. Plaintiff has sufficiently alleged a claim under the CLRA. Defendant's Motion to Dismiss is DENIED. A full-text copy of the District Court's September 19, 2019 Order is available at https://tinyurl.com/y66smrsg from Leagle.com. Jennifer Latiff, on behalf of herself and all others similarly situated, Plaintiff, represented by Daniel L. Warshaw - dwarshaw@pswlaw.com - Pearson Simon and Warshaw LLP, Bobby Pouya - bpouya@pswlaw.com - Pearson Simon Warshaw LLP, George Volney Granade - ggranade@reesellp.com - Reese LLP & Michael R. Reese - mreese@reesellp.com - Reese LLP. Nestle USA Inc., Defendant, represented by Carmine R. Zarlenga - czarlenga@mayerbrown.com - Mayer Brown LLP, pro hac vice, Dale J. Giali - dgiali@mayerbrown.com - Mayer Brown LLP & Keri E. Borders - kborders@mayerbrown.com - Mayer Brown LLP. NESTLE USA: Sued by Bakers Over 'Fake' White Chocolate Chips ------------------------------------------------------------ Matthew Renda, writing for Courthouse News Service, reports that a group of consumers sued the largest food company in the world Sept. 19, 2019, accusing it of misleading customers by producing fake white chocolate while passing it off as real. Lead plaintiffs Steven Prescott and Linda Cheslow filed a class action against Nestle USA in Santa Cruz County Superior Court, saying the Swiss multinational food conglomerate falsely marketed white chocolate chips as real white chocolate when it's actually fake white chocolate made with hydrogenated oils. The class action was filed September 19 but withheld from the public by the court until September 20. "Nestle, a company known for its chocolate, sells fake white chocolate baking chips and tries t0 market them as white chocolate," the plaintiffs say in their complaint. Plaintiffs said they relied on advertising of the white chocolate chips as "premiere chocolate" when purchasing the product for their baking projects. Instead, the chocolate -- being fake -- did not melt the way real chocolate does and caused their projects to fail, the plaintiffs say. The plaintiffs claim many other bakers had the same problem, judging by complaints on the company website. They say Nestle disguises the true nature of its product in a quest for profit. "Nestle's profits are attributable, in part, to deceptive labeling and advertising of the product as containing white chocolate," the plaintiffs say in the complaint. They also say plaintiffs say Nestle knows its packaging is misleading but continues the practice anyway. "Nestle is aware that reasonable consumers are misled into believing the product contains white chocolate when it actually contains fake white chocolate but has thus far refused to make any labeling and advertising changes to dispel the consumer deception," the plaintiffs say in the complaint. They seek an order barring Nestle from labeling and advertising the product as white chocolate and restitution on claims of unfair competition, false advertising and violation of the California Consumers Legal Remedies Act. They are represented by Ryan Clarkson and others at Clarkson Law Firm in Los Angeles. Nestle did not respond to a request for comment by press time. White chocolate is not technically chocolate because it doesn't contain cocoa solids. Instead, it's considered a "chocolate confection" typically made from a blend of cocoa butter, milk solids, sugar, milkfat and lecithin -- the fatty emulsifier that holds the whole thing together. [GN] NEW ORLEANS, LA: Partial Summary Judgment in McMahon Suit Affirmed ------------------------------------------------------------------ Judge James F. McKay, III of the Court of Appeal of Louisiana for the Fourth Circuit affirmed the trial court's granting of a partial summary judgment in favor of the Plaintiffs in the consolidated case captioned JOSEPH R. McMAHON, ET AL, v. CITY OF NEW ORLEANS. CONSOLIDATED WITH: DARLENE WASHINGTON-WAPEGAN, CAROLYN BLACKMAN, JOSEPH E. ALVEREZ, AND CORINNE DUCRE, v. CITY OF NEW ORLEANS. CONSOLIDATED WITH: DAVID C. JARRELL, v. CITY OF NEW ORLEANS. CONSOLIDATED WITH: DAVID C. JARRELL, v. CITY OF NEW ORLEANS. CONSOLIDATED WITH: DOUGLAS M. KLEEMAN AND GREGORY J. McDONALD, v. CITY OF NEW ORLEANS, Case Nos. 2018-CA-0842, 2018-CA-0843, 2018-CA-0844, 2018-CA-0845, 2018-CA-0846. In January of 2008, the City contracted with American Traffic Solutions, Inc., for the installation of traffic cameras at various locations throughout the City to capture images of vehicles that were speeding or violating intersectional red lights, or both. In connection with this contract, the City enacted and began enforcing Code of Ordinances of the City of New Orleans Chapter 154, Article XVII, Sections 154-1704, known as the Automated Traffic Enforcement System ("ATES") ordinance. On March 3, 2010, Lead Plaintiff, Mr. McMahon, filed the first class action lawsuit in Civil District Court challenging the ATES ordinances under local, state, and federal law. Several subsequent class action challenges were also filed. On Oct. 8, 2010, Mr. McMahon filed his first amended class action petition against the City, which included a challenge to the Department of Public Works' ("DPW") illegal enforcement, administration and fine collection of the ATES as ruled by Judge Paulette Irons in Washington-Wagepan, et al v. City of New Orleans, CDC No. 2010-9732. The City Council passed an amendment to ATES on Nov. 4, 2010, placing enforcement and administration of ATES sections 174-1701 through 154-1704 under the New Orleans Police Department ("NOPD"). The trial court, the Plaintiffs, and the City jointly agreed to consolidate several class action lawsuits under the caption of the instant case, and on March 23, 2012, the Plaintiffs filed a "Master Petition" in the ad hoc division of Civil District Court. The City filed a motion for summary judgment on all claims on July 31, 2012. On Oct. 10, 2012, the trial court issued a judgment in favor of the City and dismissed all of the Plaintiffs' claims. The Plaintiffs timely appealed the judgment. On Dec. 18, 2013, the Court reversed that judgment in part and remanded the matter to the trial court. It found that the Plaintiffs had a vested right to seek relief from the DPW's unlawful enforcement of ATES. On July 9, 2015, following several amendments to the Master Petition, the trial court granted class certification to the Plaintiffs. On Feb. 8, 2017, the trial court signed an order accepting the definition of two subclasses in the case. On Sept. 11, 2017, the Plaintiffs filed a motion for partial summary judgment on behalf of Subclass 1, which the trial court granted from the bench on Nov. 15, 2017. After discussions with opposing counsel, on Dec. 4, 2017, the Plaintiffs moved to amend the language of the judgment to bring conformity under Louisiana law with a money judgment. On Feb. 21, 2018, the trial court amended the language of the partial summary judgment to include an actual dollar amount ($25,612,690.32), and ordered that the City return this amount to those who had paid ATES fines between Jan. 1, 2008 and Nov. 3, 2010. It is from this judgment that the City has taken the instant suspensive appeal. On appeal, the City raises the following assignment of error: the district court erred in granting the Plaintiffs' motion for partial summary judgment, finding the entire ATES Ordinance to have been null ab initio, and ordering the return of all fines collected under the City's ATES Ordinance from Jan. 1, 2008 until Nov. 3, 2010. Judge McKay concluded that because the ATES was an invalid ordinance, without effect, until it was placed under the NOPD on Nov. 4, 2010, the trial court correctly ruled for the immediate return of the $25,612,690.32 in ATES fees and fines collected from tickets issued to Subclass 1 prior to that date. Because the ordinance was invalid, no one in Subclass 1 ever owed any of those ATES fine payments to the City. Accordingly, he affirmed the trial court's granting of the partial summary judgment in favor of the Plaintiffs. A full-text copy of the Court's Sept. 4, 2019 Order is available at https://is.gd/vCbhRD from Leagle.com. ANTHONY S. MASKA, ATTORNEY AT LAW, P.O. Box 2606, Hammond, Louisiana 70404, -and- JOSEPH R. McMAHON III, 2332 Severn Avenue, Metairie, Louisiana 70001, COUNSEL FOR PLAINTIFFS/APPELLEES. MICHEAL L. FANTACI, DEBORAH A. VILLIO, JAMES C. RAFF, LEBLANC FANTACI VILLIO, LLC, 3421 N. Causeway Blvd., Ste 201, Metairie, Louisiana 70002. -and- SUNNI LEBEOUF, NEW ORLEANS CITY ATTORNEY, SHAWN LINDSAY, DEPUTY CITY ATTORNEY, 1300 Perdido Street, Suite 5E03-City Hall, New Orleans, Louisiana 70112, COUNSEL FOR DEFENDANT/PLAINTIFF. NEW YORK: Gulino et al Filed Appeal in 2nd Cir. ----------------------------------------------- The case captioned as Elsa Gulino, Mayling Ralph, Peter Wilds ,and Nia Greene, on behalf of themselves and all others similarly situated, the Plaintiffs, and Denise Boyce, the Plaintiff-Appellee, vs. New York State Education Department, the Defendant, and Board of Education of the City School District of the City of New York, the Defendant-Appellant, Case No. 19-2812 (2nd Cir.), is an appeal filed in the United States Court of Appeals for the Second Circuit on Sept. 3, 2019, from a lower court decision in Case No. 96-cv-8414 (S.D.N.Y.). The suit alleges job related issues. The New York State Education Department is the department of the New York state government responsible for the supervision for all public schools in New York and all standardized testing, as well as the production and administration of state tests and Regents Examinations.[BN] NEWREZ LLC: Labrecque Sues Over Failure to Timely Pay Taxes ----------------------------------------------------------- Richard J. Labrecque, on behalf of Himself and Others Similarly Situated, Plaintiff, v. NewRez LLC, f/k/a New Penn Financial, LLC, d/b/a Shellpoint Mortgage Servicing, Defendant, Case No. 4:19-cv-00465-EJM (D. Ariz., Sept. 19, 2019) is a complaint against Defendant brought on behalf of Plaintiff and all other similarly situated persons with non-delinquent mortgage escrow accounts serviced by Shellpoint in which Shellpoint failed to timely pay taxes and then used escrow funds to reimburse itself for expenses incurred due to Shellpoint's own misconduct. Shellpoint is mortgage servicing company licensed to do and is doing business as a mortgage banker in Arizona. In March 2018, Plaintiff re-financed a residential property located in Pima County, Arizona by way of a residential mortgage loan from Quicken Loans, Inc. The terms and conditions governing Plaintiff's home mortgage loan were set forth in a standardized form contract ("the Mortgage Agreement"). The Mortgage Agreement is a federal mortgage governed by the Real Estate Settlement Procedures Act, and its implementing regulation. On June 1, 2018, Shellpoint began servicing Plaintiff's loan. Quicken supplied Shellpoint with the entire closing file on Plaintiff's loan, including notice of the dates and amounts of the semi-annual taxes due on the Home. Although Plaintiff's Escrow Account was at no time delinquent, and at all times had sufficient funds to pay the real estate taxes on the Home as they became due, Shellpoint failed to pay the taxes from the Escrow Account when they became due on October 1, 2018. Plaintiff on January 23, 2019, notified Shellpoint that, despite available funds in the Escrow Account, Shellpoint had not made the real estate tax payments that were due on October 1, 2018. A Shellpoint representative assured Plaintiff that the taxes would be paid and that Plaintiff would not be responsible for any fees or penalties related to the unpaid taxes. Shellpoint on March 14, 2019, finally paid the real estate taxes due October 1, 2018, using funds from the Escrow Account. However, Shellpoint on March 14, 2019, also took an additional $553.72 from the Escrow Account, to pay a late payment penalty assessed by Pima County due to Shellpoint's own failure to pay the real estate taxes due on the Home on October 1, 2018. On June 4, 2019, some eight weeks later, Shellpoint provided Plaintiff with a "Loan History Statement" which confirmed (a) that Plaintiff's Escrow Account was never delinquent, and (b) that Shellpoint had taken $553.72 from the Escrow Account to pay the penalties assessed for its own failure to timely pay the real estate taxes on the Home. Subsequently, by letter dated April 15, 2019, but not delivered to Plaintiff until July 1, 2019 via email, Shellpoint refused to reimburse Plaintiff for the $553.72 it withdrew from the Escrow Account. Because Shellpoint failed to pay the real estate taxes due on the Home on October 1, 2018, Shellpoint violated RESPA Section 2605(g) and the regulations promulgated thereunder, causing Plaintiff actual damages in the amount of $553.72. Because Shellpoint was not authorized by the terms of the Mortgage Agreement to take funds in the Escrow Account to pay penalties or fees incurred by Shellpoint, Shellpoint wrongfully converted Plaintiff's Escrow Funds to its own use. Shellpoint has exhibited a pattern or practice of failing to timely make tax payments on behalf of borrowers like Plaintiff from non-delinquent escrow accounts, says the complaint. Plaintiff is a resident and citizen of Pima County, Arizona.[BN] The Plaintiff is represented by: Andrew S. Friedman, Esq. Francis J. Balint, Jr., Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 2325 E. Camelback Rd. Suite 300 Phoenix, AZ 85016 Phone: (602) 274-1100 Fax: (602) 274-1199 Email: afriedman@bffb.com fbalint@bffb.com - and - John P. Leader, Esq. LEADER LAW FIRM 405 W. Cool Drive, Suite 107 Tucson, AZ 85704 Phone: (520) 575-9040 Fax: (520) 575-9340 Email: john@leaderlawaz.com NISSAN NORTH: Suit Over FEB, AEB Transferred to M.D. Tenn. ---------------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Defendant's Motion to Transfer Venue in the case captioned IN RE NISSAN NORTH AMERICA, INC. LITIGATION, This Document Relates To: ALL ACTIONS. Case No. 18-cv-07292-HSG. (N.D. Cal.) to the United States District Court for the Middle District of Tennessee. Plaintiffs bring this putative class action individually and on behalf of nationwide and statewide classes consisting of all persons who purchased, own, owned, lease, or leased a Class Vehicle, defined as a 2015 or newer Nissan or Infiniti vehicle equipped with Forward Emergency Braking (FEB) or Automatic Emergency Braking (AEB). The crux of Plaintiffs' CCAC is that Defendants allegedly concealed a defect in the Class Vehicles' braking system. The braking technology operates by monitoring a vehicle's proximity to the vehicle ahead and giving the driver audible and visual display warnings if the system detects a potential frontal collision. NNA moves to dismiss nine of the ten Plaintiffs for improper venue under 28 U.S.C. Section 1391(b). Alternatively, NNA moves to transfer the entire action to the Middle District of Tennessee under 28 U.S.C. Section 1404(a). Legal Standard Under Federal Rule of 12(b)(3), a party may move to dismiss an action for improper venue.Venue in a civil action is proper in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. Venue Under Section 1391(b)(1) Under Section 1391(b)(1), venue is proper in any district where a defendant resides. In a state with multiple judicial districts, for purposes of venue, a defendant corporation is deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that were a separate State. NNA argues that venue is improper under Section 1391(b)(1) because Plaintiffs cannot establish that NNA is subject to personal jurisdiction in the Northern District of California. There are two categories of personal jurisdiction a plaintiff can invoke: general and specific. General Jurisdiction A limited number of courts have addressed whether a defendant's incorporation in a multi-district state provides a basis for general jurisdiction in each district within that state. Plaintiffs argue that NNA is subject to general jurisdiction in each district in California by virtue of being incorporated in California. The Court finds this reasoning persuasive, and Plaintiffs do not provide any compelling authority to the contrary. Accordingly, because NNA is registered in the Eastern District of California and its principal place of business is in Tennessee, NNA is not subject to general jurisdiction in this district under Section 1391(d). Specific Jurisdiction Specific personal jurisdiction exists when (1) the nonresident defendant purposefully directs activities to the forum or purposefully avails itself of the privilege of conducting activities in the forum (2) the claim arises out of or relates to the defendant's forum-related activities and (3) the exercise of jurisdiction is reasonable. Plaintiffs argue that NNA is subject to specific personal jurisdiction in this district because NNA purportedly has contacts here related to the development and design of the braking technology. NNA concedes that it is subject to specific jurisdiction with respect to Plaintiff Garneau's claims, as he purchased his Class Vehicle in this district, but it argues that none of the nonresident Plaintiffs' claims relate to any activities by Defendants in California. As support for their position, Plaintiffs allege that the Nissan Research Center Silicon Valley (NRC-SV) researched and developed the braking technology at issue. NNA disputes NRC-SV's involvement, and submitted a declaration from Maarten Sierhuis, the Chief Technology Director of NRC-SV, stating that the research facility had no involvement in the research, development, design or testing of Forward Emergency Braking/Automatic Emergency Braking technology in any Nissan or Infiniti vehicles sold, currently or in the past, in the U.S. Market. Plaintiffs present no evidence to the contrary, and therefore fail to meet their burden of establishing that NRC-SV's presence in this district is a basis for personal jurisdiction. More fundamentally, critically lacking from Plaintiffs' own allegations and the record presented is any evidence that Defendants had any contacts in California concerning the sale and marketing of the Class Vehicles to Plaintiffs with the exception of Plaintiff Garneau. Plaintiffs' allegations arise from Defendants' claimed non-disclosure of the braking defect. The Court is not persuaded that the mere presence of a research facility in this district, especially one with no involvement in the braking technology, establishes that Defendants have any connection to this forum that would make it reasonable to hale Defendants into court here for claims related to the advertising and sale of vehicles outside this forum. Plaintiffs have not identified any link between this forum and the non-resident Plaintiffs' claims, as those Plaintiffs did not purchase the vehicles in this forum, or even in California. Thus, the Court finds that Plaintiffs have not carried their burden of demonstrating that the nonresidents' claims arise out of Defendants' activities in this district. With the exception of Plaintiff Garneau, the Court finds that venue does not lie here under Section 1391(b)(1). The Court finds that venue does not properly lie in this district for the claims of any of the nonresident Plaintiffs. Therefore, the Court may dismiss or if it be in the interest of justice, transfer such case to any district in which it could have been brought. Transfer will normally be in the interest of justice because normally dismissal of an action that could be brought elsewhere is time-consuming and justice-defeating. Because venue is proper in this district for Plaintiff Garneau, the Court considers whether transfer of the entire action is appropriate pursuant to 28 U.S.C. Section 1404. MOTION TO TRANSFER UNDER 28 U.S.C. Section 1404 Legal Standard In this district, courts typically consider the following factors: (1) plaintiff's choice of forum (2) convenience of the parties (3) convenience of the witnesses, (4) ease of access to the evidence (5) familiarity of each forum with the applicable law (6) feasibility of consolidation with other claims (7) any local interest in the controversy and (8) the relative court congestion and time to trial in each forum. This Case Could Have Been Brought in the Middle District of Tennessee A transferee district in which the action might have been brought is one: (1) that has subject matter jurisdiction (2) where defendant would have been subject to personal jurisdiction and (3) venue would have been proper. The Court finds that this threshold requirement is met. Plaintiffs' Choice of Forum and Convenience of the Parties Although Plaintiffs argue that their choice of forum should be given substantial weight. Plaintiffs' choice of forum is given less weight where, as here, Plaintiffs seek to represent a class. Here, nine of ten Named Plaintiffs reside outside of California. The only relevant connection to this forum Plaintiffs raise is that Plaintiff Garneau resides in this District, was exposed to Defendant's misleading conduct in this District, purchased a Class Vehicle in this District, and thus was injured in this District. Yet they fail to account for the nine Plaintiffs who all reside outside of California, were exposed to Defendants' allegedly misleading conduct outside of California, purchased a Class Vehicle outside of California, and were injured outside of California. Further, the convenience of the parties also favors transfer. The Court agrees with NNA that a transfer to the Middle District of Tennessee would seem to be equally convenient, if not more convenient for the nine nonresident Plaintiffs, given that proceeding in the Middle District of Tennessee would bring the action closer to each of their home states. The Court finds that the substantial number of non-resident named Plaintiffs cuts against Plaintiffs' claim that it is more convenient for the parties to litigate here. Convenience of Witnesses and Ease of Access to Evidence As to ease of access to evidence, NNA concedes that the availability of electronic evidence makes this factor neutral. Reply at 6. For witnesses, NNA posits that it would be more convenient for its own witnesses to testify if the action were located in Tennessee, given the proximity to its headquarters. With respect to non-party witnesses, NNA proffers that they would likely be found in Plaintiffs' home states. Id. The Court agrees that transfer would presumably be more convenient for those non-party witnesses, because any non-party witnesses outside of California who would have to be compelled to testify may be "beyond the Court's subpoena power absent transfer. Plaintiffs fail to identify a relevant party for whom this district would be a more convenient forum. Because the convenience of non-party witnesses is often considered the most important factor in assessing a motion to transfer, the Court is persuaded here that the convenience of non-party witnesses supports Defendants' transfer request. Feasibility of Consolidation with Other Claims NNA argues that this factor is neutral since the Court has already consolidated the cases. The Court agrees. Familiarity with Applicable Law According to NNA, familiarity with applicable law supports transfer or is at least neutral. Although no Plaintiff invokes Tennessee law, NNA contends that no Plaintiff properly invokes California law. Plaintiffs respond that NNA's argument is premature and wrong. The Court finds this factor to be neutral or to weigh slightly against transfer. Plaintiffs do bring claims under California law, but they also bring claims under the laws of each non-resident Plaintiff's home state. While the Court may have more familiarity with California law, it cannot say at this stage that it has any greater knowledge regarding the many other legal issues raised such that transfer would be inappropriate. Local Interest Courts also consider the local interest in deciding local controversies. The Court finds that Tennessee has a greater local interest in this case. Plaintiffs only point to Plaintiff Garneau's residency and NNA's place of incorporation as connections to this forum. But they ignore that nine of the ten Plaintiffs have no connection to California, that NNA's headquarters are in Tennessee, and that it conducts its business in Tennessee. Given NNA's significant contacts with Tennessee and Plaintiffs' limited contacts with California, the Court finds this factor weighs in favor of transfer. Differences in Cost While convenience to the parties' attorneys is not an appropriate factor for the Court to consider when deciding a motion to transfer, the difference in the costs of litigation in the two forums' is relevant. Plaintiffs argue that transfer would unfairly shift the cost of litigation from the large corporations with national and international presence to Plaintiffs, who are individual purchasers of automobiles from Defendants. The Court is not persuaded. Instead, the Court finds that litigation costs would likely be lower if the case were litigated in the Middle District of Tennessee, given that the majority of the nonresident Plaintiffs and potential witnesses would be geographically closer to Tennessee than California. Plaintiffs fail to persuasively refute this point. Thus, this factor weighs in favor of transfer. Balancing the Factors On balance, the Court finds that this forum's lack of connection to events alleged in the CCAC and the convenience of non-party and other witnesses often considered the most important factor weigh in favor of transfer to the Middle District of Tennessee. The Court GRANTS the motion to transfer. The Clerk of Court shall TRANSFER this case to the United States District Court for the Middle District of Tennessee, and close the file. A full-text copy of the District Court’s September 23, 2019 Order is available at https://tinyurl.com/yym2upmv from Leagle.com Cathy Bashaw, on behalf of herself and all others similarly situated, Plaintiff, represented by Joel Dashiell Smith - jsmith@bursor.com - Bursor & Fisher, P.A., Frederick J. Klorczyk, III - fklorczyk@bursor.com - Bursor and Fisher, P.A. & Lawrence Timothy Fisher- ltfisher@bursor.com - Bursor & Fisher, P.A. Robert Garneau, Nancy Housell, Jeffrey Olkowski, Courtney Johnson, Scott Reeves, Lisa Hendrickson, Rhonda Perry & Jane Reeves, Plaintiffs, represented by Joel Dashiell Smith , Bursor & Fisher, P.A. & Lawrence Timothy Fisher , Bursor & Fisher, P.A. Nissan North America, Inc., Defendant, represented by E. Paul Cauley, Jr.- paul.cauley@dbr.com - Drinker Biddle & Reath, LLP, pro hac vice, Matthew Jacob Adler- matthew.adler@dbr.com - Drinker Biddle Reath LLP & Paul Jeffrey Riehle - paul.riehle@dbr.com - Drinker Biddle & Reath LLP. Nissan Motor Co., Ltd., Defendant, represented by Paul Jeffrey Riehle , Drinker Biddle & Reath LLP. OLLIE'S BARGAIN: 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 Southern District of New York on behalf of all persons or entities that purchased the common stock of Ollie's Bargain Outlet Holdings, Inc. ("Ollie's" or the "Company") (NASDAQ GS:OLLI) between June 6, 2019 and August 28, 2019, inclusive (the "Class Period"), alleging violations of the Securities Exchange Act of 1934 against the Company and certain of its officers (the "Complaint"). If you purchased shares of Ollie's during the Class Period, or purchased shares prior to the Class Period and still hold Ollie's, 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 suffered a supply chain issue that impacted the initial inventory available at new stores; (2) that, as a result, the Company lacked sufficient inventory to meet demand at certain store locations; (3) that, as a result, the Company's comparable store sales were likely to decrease quarter-over-quarter; 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. 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 August 28, 2019, Ollie's reported that comparable store sales decreased 1.7% during second quarter 2019. In addition, Ollie's disclosed that a "bottleneck issue" had existed in its supply chain "for most all of Q2" and was not corrected until "the last week of the quarter." On this news, shares of Ollie's fell over 27%, closing at $56.36 per share on August 29, 2019, on heavy trading volume. If you wish to serve as lead plaintiff, you must move the Court no later than November 18, 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 Website: http://www.rigrodskylong.com Email: info@rl-legal.com sdr@rl-legal.com tjm@rl-legal.com [GN] OLLIE'S BARGAIN: 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 Ollie's Bargain Outlet Holdings, Inc. ("Ollie's" or "the Company") (NASDAQ: OLLI) for violations of the Federal securities laws. Investors who purchased the Company's shares between June 6, 2019 and August 28, 2019, inclusive (the ''Class Period''), are encouraged to contact the firm before November 18, 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. Ollie's failed to build and maintain an effective supply chain system, impacting the availability of inventory for new stores. The Company failed to maintain sufficient inventory to meet demand at certain stores. Based on these facts, the Company's comparable store sales were likely to decrease in sequential quarters. Based on these facts, the Company's public statements were false and materially misleading throughout the class period. When the market learned the truth about Ollie's, investors suffered damages. Join the case to recover your losses. The Schall Law Firm represents investors around the world and specializes in securities class action lawsuits and shareholder rights litigation. Contact: Brian Schall, Esq. The Schall Law Firm Website: www.schallfirm.com Office: 310-301-3335 Cell: 424-303-1964 Email: info@schallfirm.com brian@schallfirm.com [GN] OPTICAL DISK: Supreme Court OKs Price-Fixing Class Action Suits --------------------------------------------------------------- Regina Leader-Post, reports that the suits, filed by Whistler businessman Neil Godfrey, allege the companies overcharged buyers of optical disk drives and products containing them, such as computers and video-game consoles. The cases, involving more than 40 defendants, including powerhouses such as Sony, Toshiba, Samsung, Philips, Panasonic and Pioneer, were certified as class actions, decisions upheld on appeal. Godfrey is seeking compensation for all B.C. residents who purchased the products between Jan. 1, 2004, and Jan. 1, 2010. The proposed class also includes so-called umbrella purchasers -- people who bought products that were not made or supplied by the companies in question -- based on the theory that the conspiracy led other manufacturers to set higher prices as well. Godfrey launched the main action in September 2010, but a separate one against Pioneer did not come until August 2013, leading the company to argue it began after the expiry of a two-year limitation period. [GN] OREXIGEN THERAPEUTICS: Court Narrows Claims in Securities Suit -------------------------------------------------------------- The United States District Court for the Southern District of California issued an Order granting in part and denying in part Moving Defendants' Motion to Dismiss in the case captioned KARIM KHOJA, on behalf of himself and all others similarly situated, Plaintiff, v. OREXIGEN THERAPEUTICS, INC., JOSEPH P. HAGAN, MICHAEL A. NARACHI, and PRESTON KLASSEN, Defendants. AND ALL CONSOLIDATED CASES. Case No. 15-CV-540 JLS (JLB). (S.D. Cal.). Plaintiff Lisa Colley filed a class action complaint against Defendants, alleging (1) violation of Section 10(b) of the Securities Exchange Act of 1934 (1934 Act) and Rule 10b-5, and (2) violation of Section 20(a) of the 1934 Act. Legal Standard Rule 12(b)(6) permits a party to raise by motion the defense that the complaint fails to state a claim upon which relief can be granted, generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a short and plain statement of the claim showing that the pleader is entitled to relief. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim is facially plausible when the facts pled allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Lead Plaintiff alleges two surviving causes of action: (1) Count I for violations of Section 10(b) of the 1934 Act and Rule 10b-5(b) against all Defendants and (2) Count III for violations of Section 20(a) of the Exchange Act against the Moving Defendants. The Court addresses each in turn below. Section 10(b) and Rule 10b-5 Section 10(b) of the 1934 Act forbids (1) the use or employment of any deceptive device (2) 'in connection with the purchase or sale of any security and (3) in contravention of' SEC rules and regulations. The basic elements of a Rule 10b-5 claim, therefore, are: (1) a material misrepresentation or omission of fact (2) scienter, (3) a connection with the purchase or sale of a security (4) transaction and loss causation and (5) economic loss. The Moving Defendants move to dismiss with prejudice Lead Plaintiff's Section 10(b) and Rule 10b-5 claims for failure adequately to plead (1) scienter as to all misrepresentations and (2) loss causation as to the March 3, 2015 misrepresentations. Scienter A private securities plaintiff must state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. The required state of mind is scienter, i.e. a mental state embracing intent to deceive, manipulate, or defraud. The Court must consider competing inferences that could be drawn in favor of plaintiffs or defendants and determine whether plaintiffs have pled a strong inference of scienter which is cogent and at least as compelling as any opposing inference of nonfraudulent intent. The Ninth Circuit's Decision in Khoja As an initial matter, Lead Plaintiff contends that the Ninth Circuit in Khoja reasoned that almost all of the statements identified in the Complaint adequately pled material misstatements or omissions, and with the requisite scienter. The Moving Defendants rejoin that Lead Plaintiff misreads the Ninth Circuit's decision and argues that court already decided scienter. It did not. The Moving Defendants are correct. The Ninth Circuit made explicit that it had made no determination as to the sufficiency of Lead Plaintiff's allegations of Defendants' scienter: The district court's dismissal of Count I was based on the elements of falsity and materiality. Accordingly, the analysis here is limited to those issues. The March 3, 2015 Statements Lead Plaintiff alleges that Orexigen's March 3, 2015 Form 8-K and press release were materially false and misleading because they failed to disclose that the 25% study results were unreliable and that Orexigen had made a request with the USPTO in January 2015 to have the patent publicly disseminated. The Moving Defendants contend that Lead Plaintiff has failed to allege that any of them had the requisite fraudulent intent. Specifically, the Moving Defendants urge that any inference of scienter concerning the undisclosed unreliability of the 25 percent interim results is undercut by the cautionary language appearing in the March 3, 2015 Form 8-K concerning the preliminary nature of the data. Lead Plaintiff counters that falsity and scienter often go hand-in-hand, and that the Ninth Circuit's finding of material falsity should be dispositive. Further, as to the disclosure of the unreliable 25 percent interim results, Lead Plaintiff claims that he has alleged that the FDA told Narachi and Klassen that the 25 percent interim results had a high degree of uncertainty and that Hagan as a signatory to the March 3, 2015 8-K and as the Chief Business Officer, Treasurer, and CFO of Orexigen was aware, or deliberately disregarded, the significance of releasing the 25% interim data. The Court concludes that Lead Plaintiff adequately has alleged facts giving rise to a strong inference of scienter as to Klassen and Narachi's alleged material omissions on March 3, 2015, but not as to Hagan's. Regarding the March 3, 2015 disclosure of the unreliable 25 percent interim data in the Form 8-K, Lead Plaintiff alleges that, during a June 4, 2014 meeting about Defendants' breach, the FDA reminded Defendants Narachi and Klassen that 25% interim results have a high degree of uncertainty and were likely to change with the accumulation of additional data. Lead Plaintiff therefore alleges that, despite knowing that the 25 percent interim results were unreliable, Klassen and Narachi failed to disclose as much in the March 3, 2015 8-K. At the pleading stage, these allegations give rise to an inference of scienter at least as compelling as any opposing inference of nonfraudulent intent. Although the presence of cautionary language in the Form 8-K does give rise to an inference of nonfraudulent intent, the inference that Klassen and Narachi acted with deliberate or conscious recklessness is at least as compelling. Defendants could have announced the publication of the 371 Patent without touting the 25 percent interim results or they could have disclosed that the 25 percent interim results were considered unreliable. Instead, Defendants published the data with certain qualifiers but, as the Ninth Circuit recognized, telling investors that the data might change is different from saying the data already has 'a high degree of uncertainty' and is likely to change. Consequently, the inference that Klassen and Narachi misleadingly disclosed the unreliable 25 percent interim data artificially to inflate the price for Orexigen's stock is equally compelling. As the Moving Defendants note, however, there is no allegation that Hagan attended the June 4, 2014 meeting, or that any information from that meeting was ever transmitted to him. And without allegations that each of the Moving Defendants that signed various of Orexigen's public filings knew those public filings contained misstatements, the Moving Defendants' signatures on those public filings alone does not give rise to a strong inference of scienter. Lead Plaintiff therefore urges that the Light Study and its 25 percent interim results were of such importance to Orexigen that Hagan must have known of the unreliability of the preliminary data, allowing the Court to conclude that Lead Plaintiff has alleged a strong inference of scienter as to Hagan. In so arguing, Lead Plaintiff relies heavily on the Ninth Circuit's decisions in South Ferry, 542 F.3d 776, and Berson, 527 F.3d 982. The Moving Defendants counter that this core operations inference fails to impute knowledge to Hagan, who is not alleged to have knowledge of the unnamed FDA employee's opinion. The Court must agree with the Moving Defendants. Lead Plaintiff alleges that Hagan served at all relevant times as the Company's Chief Business Officer, Treasurer and Acting CFO and that his individual goals emphasized developing Contrave for markets both at home and abroad. But, unlike Klassen and Narachi, there are no allegations that Hagan ever met with the FDA or was in any way involved in the Light Study. Rather, Lead Plaintiff alleges that Hagan was to effectively lead and manage the finance and accounting teams as Orexigen transitions into a commercial stage company' and lead the ROW rest of the world partnering process and make significant progress toward establishing partnership(s) to further develop and commercialize Contrave outside North America. Consequently, although Lead Plaintiff's allegations do reveal that Hagan's responsibilities at Orexigen were connected to Contrave generally, they appear to have been related more to its financial and marketing aspects. The Court therefore cannot infer that the FDA's interpretation of the 25 percent results must have been known to Hagan. Accordingly, the Court GRANTS IN PART AND DENIES IN PART the Moving Defendants' Motion as to the Moving Defendants' scienter as to the May 3, 2015 material omissions. Specifically, the Court GRANTS the Motion as to Hagan and DENIES the Motion as to Klassen and Narachi. Orexigen's May 8, 2015 Statements Lead Plaintiff also alleges that Defendants' May 8, 2015 Forms 8-K and 10-Q and earnings conference call were materially misleading because they misrepresented that the Light Study was ongoing by failing to disclose that the ESC had terminated the Light Study on March 26, 2015, and failed to disclose the 50 percent interim results. The Moving Defendants argue that Lead Plaintiff fails to plead scienter as to either of these statements because the Complaint is internally contradictory with respect to the alleged timing of the Light Study termination, which should be dispositive that Defendants were not deliberately reckless in failing to disclose that the Light Study had allegedly been terminated before May 8. Further, the Complaint lacks any allegations suggesting that Defendants who said nothing about the 25% data after March 3, 2015 believed the failure to disclose the 50% data risked misleading investors. Lead Plaintiff counters that it is now law of the case that the Complaint's allegations support a plausible inference that the ESC terminated the Light Study before May 2015, and, even if the ESC had only recommended terminating the study, Defendants nevertheless had a duty to disclose that development. Lead Plaintiff also urges that the absence of stock sales does not undermine the existence of scienter and that where, as here, employee compensation is tied to facts of the alleged fraud, such particularized allegations' can establish scienter. The Court concludes that Lead Plaintiff adequately has alleged scienter as to the Moving Defendants for the alleged material omissions from May 8, 2015. In light of the Ninth Circuit's conclusion that Lead Plaintiff's allegations support a plausible inference that the ESC terminated the Light Study before May 2015, the Court rejects the Moving Defendants' argument that the Complaint is internally contradictory with respect to the alleged timing of Light Study termination and in particular the Moving Defendants' reliance on Exhibit K to their Request for Judicial Notice, of which the Court cannot properly take judicial notice. The Court therefore accepts as its starting point that Lead Plaintiff plausibly alleges that the Light Study had already been terminated on March 26, 2015, and that Dr. Nissen informed the Moving Defendants of this development. As to Klassen and Narachi, these allegations, coupled with Klassen's false statement that the Light Study is continuing and it's an ongoing entity as of right now and Narachi's false assurance that Orexigen would disclose any decision to terminate the Light Study, give rise to a strong inference of scienter on behalf of Klassen and Narachi as to their material omissions concerning the termination of the Light Study on May 8, 2015. The question is closer concerning Hagan; nonetheless, the Court ultimately concludes that Lead Plaintiff's allegations as to Hagan give rise to a strong inference of scienter given Lead Plaintiff's allegations that Hagan knew of the March 26, 2015 termination of the Light Study, yet signed the May 8, 2015 Forms 8-K and 10-Q that misleadingly omitted this material information. The May 8, 2015 Form 8-K, for example, suggest[ed] that the Light Study was ongoing, by indicating that Orexigen's clinical trial program also includes a double-blind, placebo-controlled cardiovascular outcomes trial known as the Light Study. The same is true of Lead Plaintiff's alleged material omissions from May 8, 2015, concerning the 50 percent interim data. The Court again begins with Lead Plaintiff's allegation that, on March 26, 2015, the Moving Defendants were actually shown the more mature 50% data demonstrating that the cardiovascular benefit the Company had earlier touted on March 3, 2015 was false. The Ninth Circuit concluded that, by touting and publishing the surprisingly' positive 25 percent interim results, Orexigen created its own obligation to report that those results did not pan out after all. Nonetheless, Lead Plaintiff alleges, when Klassen and Narachi participated in the earnings call on May 8, 2015, they failed to disclose the 50 percent interim results, even when directly asked whether those results had been disclosed. Again, the Court concludes that these allegations give rise to a strong inference of scienter on behalf of Klassen and Narachi as to their material omissions concerning the 50 percent interim results. The Court therefore DENIES the Moving Defendants' Motion as to Lead Plaintiff's allegations of the Moving Defendants' scienter concerning the alleged material omissions from May 8, 2015. Loss Causation To demonstrate loss causation, a plaintiff must allege a causal connection between the material misrepresentation and the loss. In other words, the complaint must allege that the practices that the plaintiff contends are fraudulent were revealed to the market and caused the resulting losses. The Moving Defendants contend that Lead Plaintiff's claims predicated upon material misrepresentations or omissions made on March 3, 2015, must be dismissed for failure adequately to plead loss causation. The March 5, 2015 Forbes.com Article Lead Plaintiff alleges that an article published on March 5, 2015, by Forbes.com, in which a top FDA official, Dr. John Jenkins, criticized Orexigen and its decision to release interim trial data, disclosed Defendants' March 3, 2015 misrepresentations. Specifically, in the March 5, 2015 article, Dr. Jenkins criticized the released data as unreliable, misleading and likely false. He also warned that if Orexigen cannot find a way to set things right, it could face fines, civil penalties, or even the withdrawal of Contrave from the market. The Moving Defendants argue that this article could not, by definition, be a corrective disclosure as the corrective' information was already known to the market. Lead Plaintiff counters that the March 5, 2015 article contained new, harmful information, specifically, that Dr. Jenkins for the first time criticized the potential impact of the interim trial data as unreliable, misleading and likely false and added that if Orexigen cannot find a way to set things right, it could face fines, civil penalties, or even the withdrawal of Contrave from the market, statements that challenged the legitimacy and continuation of the Company's entire Contrave drug development program and caused the price of Orexigen stock to plummet as much as 16% in intraday trading. The Court agrees with the Moving Defendants that the March 3, 2015 Forbes.com and March 4, 2015 Wall Street Journal articles already had disclosed that the FDA believed that the 25 percent interim data was unreliable before the March 5, 2015 Forbes.com article was published. Those articles, however, had not disclosed that Orexigen could face fines, civil penalties, or even the withdrawal of Contrave from the market. The Court therefore concludes that the March 5, 2015 Forbes.com article revealed some aspect of the alleged fraud to the market and, consequently, that Lead Plaintiff adequately alleges loss causation as to the March 5, 2015 corrective disclosure. Dr. Nissen's May 12, 2015 Press Release Lead Plaintiff also alleges that Dr. Nissen's May 12, 2015 press release corrected Defendants' March 3, 2015 misrepresentations. Dr. Nissen's press release indicated that the Light Trial has been halted and that Orexigen's March 3, 2015 disclosure of the 25 percent interim analysis was without the authorization of the study's academic leadership. Dr. Nissen reiterated that the 25 percent interim data are not conclusive in establishing either benefit or risk of Contrave on cardiovascular risk and that the 50% interim results do not confirm cardiovascular benefits of Contrave claimed by Orexigen in the patent application based on the data obtained at the 25 percent time point in the trial. He added that the inconsistency of effects on cardiovascular outcomes between the first 25 percent and the second 25 percent of the Light Study clearly illustrates the risks inherent in pre-judgment of clinical trial results based upon an interim analysis and demonstrate why interim results should remain confidential during any ongoing trial. The Moving Defendants argue that the press release did not correct anything said by Defendants on March 3 because it said nothing about who was responsible for publishing the patent and did not dispute the claims contained therein, as the 25 percent interim results were still technically accurate. Lead Plaintiff notes that the Forbes.com article concerning the press release, published later that day, noted that patients were misled, investors were misled. Although Dr. Nissen's May 12, 2015 press release may have served as a corrective disclosure for the alleged misrepresentations made on May 8, 2015, the Court must agree with the Moving Defendants that it does not reveal any information about the alleged misrepresentations or omissions from March 3, 2015, that had not already been revealed to the market. The alleged misstatements on March 3, 2015, related solely to the unauthorized publication of the unreliable interim 25 percent data and Defendants' role in the publication of the 371 Patent. Articles published on March 3 through 5, 2015, however, already had made clear that Orexigen had published the interim 25 percent data without the authorization of the FDA and that the FDA considered the interim 25 percent data unreliable. Consequently, Dr. Nissen's May 12, 2015 press release did not serve to correct any of those alleged misrepresentations, which had already been revealed to the market. The Court therefore concludes that the May 12, 2015 press release was not a corrective disclosure as to the alleged misrepresentations from March 3, 2015. Third Cause of Action: Violations of Section 20(a) of the 1934 Act Against the Moving Defendants Section 20(a) of the 1934 Act makes certain controlling individuals also liable for violations of section 10(b) and its underlying regulations. Specifically, Section 20(a) provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable (including to the Commission in any action brought under paragraph (1) or (3) of section 78u(d) of this title), unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. Thus, a defendant employee of a corporation who has violated the securities laws will be jointly and severally liable to the plaintiff, as long as the plaintiff demonstrates a primary violation of federal securities law' and that the defendant exercised actual power or control over the primary violator. The Moving Defendants contend that because the Complaint fails to plead a primary violation of Section 10(b), the Section 20(a) claim also fails. Having concluded that Lead Plaintiff adequately alleges a cause of action for violation of Section 10(b) of the Exchange Act and Rule 10b-5(b), the Court DENIES the Moving Defendants' Motion as to Lead Plaintiff's third cause of action. The Court GRANTS IN PART AND DENIES IN PART Defendants' RJN DENIES Lead Plaintiff's RJN and GRANTS IN PART AND DENIES IN PART the Moving Defendants' Motion as detailed above. A full-text copy of the District Court's September 23, 2019 Order is available at https://tinyurl.com/y6943p4z from Leagle.com. Karim Khoja, Plaintiff, represented by Alayne Karen Gobeille - alayne.gobeille@ksfcounsel.com - Kahn Swick & Foti LLC, pro hac vice, Alexander Louis Burns , Kahn Swick Foti LLC, 250 Park Ave Ste 2040, New York, NY 10177-2002,.pro hac vice, Ramzi Abadou - ramzi.abadou@ksfcounsel.com - Kahn Swick Foti LLP & Stephen Richard Basser - sbasser@barrack.com - Barrack Rodos and Bacine. Kurt R. Yantz, individually and on behalf of all others similarly situated, Plaintiff, represented by Samuel M. Ward - sward@barrack.com - Barrack Rodos and Bacine, Stephen Richard Basser , Barrack Rodos and Bacine & Danielle Suzanne Myers - danim@rgrdlaw.com - Robbins Geller Rudman & Dowd LLP. Orexigen Therapeutics, Inc., Joseph P. Hagan & Michael A. Narachi, Defendants, represented by Jeffrey David Lombard - jlombard@cooley.com - Cooley LLP, Jessica V. Santamaria -jsantamaria@cooley.com - Cooley, LLP, John C. Dwyer - dwyerjc@cooley.com - Cooley, LLP, Mary Kathryn Kelley , Cooley Godward Kronish & Dane Robert Voris - dvoris@cooley.com - Cooley LLP. Preston Klassen, Defendant, represented by Jeffrey David Lombard , Cooley LLP, John C. Dwyer , Cooley, LLP, Mary Kathryn Kelley , Cooley Godward Kronish & Dane Robert Voris , Cooley LLP. OVERHILL FARM: Zamora Suit Remanded to California Superior Court ---------------------------------------------------------------- Judge Virginia A. Phillips of the U.S. District Court for the Central District of California remanded the case, Marlen A. Beltran Zamora, Plaintiff, v. Overhill Farms, Inc., et al., Defendant, Case No. 2:19-cv-03891 VAP (AFMx) (C.D. Cal.), to the Superior Court of California, County of Los Angeles. The Plaintiff filed the putative class action in Los Angeles Superior Court on March 29, 2019, bringing claims of (1) failure to provide required meal periods; (2) failure to provide required rest periods; (3) failure to pay overtime wages; (4) failure to pay minimum wages; (5) failure to pay all wages due to discharged employees; (6) failure to furnish accurate itemized statements; (7) failure to indemnify employees for necessary expenditures; (8) unfair and unlawful business practices; and (9) civil penalties under the Labor Code Private Attorneys General Act of 2004. The Defendants removed the case to the Court on May 3, 2019 on the basis that the Labor Management Relations Act preempts the Plaintiff's claims. The Defendants' Notice of Removal states that Plaintiff's claims are preempted by Section 301 of the Labor Management Relations Act, as resolution of the Plaintiff's claims requires interpretation of the collective bargaining agreement ("CBA") and, therefore, arise under federal law. The Plaintiff now moves for remand, arguing that her claims are not preempted. Judge Phillips finds that the Plaintiff's meal and rest period claims are not preempted. She finds that (i) adjudicating the Plaintiff's claims thus does not require more than a "consideration" of the CBA; (ii) "looking" to the CBA to discern that its terms are not reasonably in dispute1 and consulting the CBA to refer to wage rates in computing a penalty is not enough to warrant preemption; and (iii) the Ninth Circuit has held that a defense based on the terms of a CBA is not enough to require preemption. Next, the Judge finds that courts in the district consistently treat the statutory exemptions of Section 514 as an affirmative defense that must be proven by a defendant, and it is not a basis for preemption. As a Section 514 defense is therefore inapplicable for the purposes of determining jurisdiction, the Plaintiff's overtime claim asserts state law rights. The Defendants also argue that the Court must interpret the CBA to determine the proper pay rates for calculating overtime. As the Judge explained, however, consulting the CBA to refer to wage rates in computing a penalty is not enough to warrant preemption. The Defendants concede that the Plaintiff's minimum wage claim arises under state law, but argue that it requires interpretation of the CBA, which gives the employer the right to manage its own business and operations and provides detailed provisions for the hours of work, start and end times, and duty-free breaks from work. The Judge holds that the Defendants offer no authority to support the contention that an employer's ability to manage its business encompasses the right to pay employees less than the minimum wage. The Plaintiff's claim is therefore not preempted. The Plaintiff's claim for reimbursement also does not require interpretation of the CBA. The Judge holds that California Labor Code Section 2802 requires an employer to indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties. The CBA provides that the employer will supply all necessary tools including uniforms. The Defendants argue that the Plaintiff's claim therefore substantially depends on the collective bargaining agreement, as what clothing constitutes a reimbursable 'uniform' depends on the scope, meaning and application of the CBA. The argument is belied by the non-waivable nature of an employee's right to reimbursement for necessary expenses, as well as a labor regulation defining when a uniform is considered to be necessary. Finally, the parties concur that the Plaintiff's remaining claims are derivative of her meal and rest break, overtime, minimum wage, and reimbursement claims, none of which are preempted by Section 301. Accordingly, the Plaintiff's remaining claims provide no basis for the Court's jurisdiction in the case. For the foregoing reasons, Judge Phillips granted the Plaintiff's Motion, and remanded the case to the Superior Court of California, County of Los Angeles. A full-text copy of the Court's Aug. 21, 2019 Order is available at https://is.gd/HvF4sB from Leagle.com. Marlen A. Beltran Zamora, an individual, on behalf of others similarly situated, and as an aggrieved employee under the Labor Code Private Attorneys General Act of 2004, Plaintiff, represented by Andrew Joseph Sokolowski -- ASokolowski@maternlawgroup.com -- Matern Law Group PC, Matthew John Matern -- mmatern@maternlawgroup.com -- Matern Law Group PC & Shooka Dadashzadeh, Mahoney Law Group APC. Overhill Farms, Inc., a Nevada corporation, Defendant, represented by Mark J. Payne -- mark.payne@troutman.com -- Troutman Sanders LLP & Kristalyn Fon Lee, Troutman Sanders LLP. PHARMERICA CORPORATION: Court Dismisses Riordan Securities Suit --------------------------------------------------------------- The United States District Court for the Western District of Kentucky, Louisville Division, issued a Memorandum Opinion and Order granting Defendants' Motion to Dismiss in the captioned LABORERS' LOCAL #231 PENSION FUND and DANIEL RIORDAN, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. PHARMERICA CORPORATION, FRANK E. COLLINS, W. ROBERT DAHL, JR., MARJORIE W. DORR, PATRICK G. LEPORE, GEOFFREY G. MEYERS, ROBERT A. OAKLEY, GREGORY S. WEISHAR, KOHLBERG KRAVIS ROBERTS & CO. L.P. and WALGREENS BOOTS ALLIANCE, INC., Defendants. Civil Action No. 3:18-CV-109-RGJ. (W.D. Ky.). Plaintiffs bring this putative class action lawsuit, against PharMerica and its Board of Directors, KKR, and Walgreens, under the Securities Exchange Act Section 14(a) and SEC Rule 14a-9 promulgated thereunder alleging that the Proxy Statement contained both affirmative material misleading statements and material omissions. Plaintiffs also seek to hold PharMerica's Board of Directors, KKR, and Walgreens, liable as control persons under the Securities Exchange Act Section 20(a). STANDARD In considering a motion to dismiss, the Court must accept as true all factual allegations set forth in the complaint and make all reasonable inferences in favor of the non-moving party. To survive a motion to dismiss, the plaintiff must allege enough facts to state a claim to relief that is plausible on its face. A claim becomes plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. A complaint will be dismissed if no law supports the claim made, if the facts alleged are insufficient to state a claim, or if the face of the complaint presents an insurmountable bar to relief. Claims alleging that misleading statements have violated securities laws are subjected to a heightened pleading standard under the Private Securities Litigation Reform Act (the PSLRA). PharMerica and KKR, move to dismiss the claims against them, arguing that Plaintiffs' Section 14(a) claims should be dismissed for three reasons. First, Plaintiffs fail to identify a materially false or misleading statement or omission contained in or left out of the Proxy. Second, Plaintiffs fails to allege scienter. Third, Plaintiffs fail to sufficiently plead loss causation. Arguing that there is no underlying Section 14(a) violation and that Plaintiffs fail to allege adequate control, KKR and also move to dismiss Plaintiffs' Section 20(a) claims. Plaintiffs' Section 14(a) Claim A Section 14(a) claim for an SEC Rule 14a-9 violation has four basic elements: (i) the proxy statement contains a material misrepresentation or omission (ii) defendants were at least negligent (iii) the misrepresentations or omissions caused plaintiffs alleged loss and (iv) the proxy statement was an essential link in the completion of the transaction. A misrepresentation or omission is material when there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote. Affirmative False and Misleading Statements In evaluating whether a Proxy Statement contains a materially false or misleading statement under Section 14(a), the court is not concerned with the details or actual fairness of the merger. If Plaintiffs have concerns with the share price, the appropriate remedy would have been to exercise their appraisal rights. As a result, the Court here looks not to whether the $29.95 per share price and the fairness opinions endorsing that price, both of which were based on the July 2017 Projections, are literally fair, but whether the Proxy made any misstatements or omitted information necessary for a stockholder to evaluate the Proxy and the merger causing the Proxy to be false or misleading. Plaintiffs allege that the statements would cause an investor to believe that the Company's future business plan only included organic growth. Plaintiffs also allege that the statements falsely represented the accuracy of the July 2017 Projections, which did not include projections based on acquisitions, because the Company represented that they relied solely on the July 2017 Projections in developing the fairness opinions. Plaintiffs argue that these statements are objectively false because the Company's actual growth plan at the time of the Merger included acquisitions and was supported by numerous statements made by the Company, including the Company's SEC filings Plaintiffs also argue that the statements are subjectively false because the Individual Defendants knew that the Company's actual growth plan included acquisitions when they approved the statements inclusion in the Proxy. In response, Defendants argue that the Proxy statement was not false or misleading because the Proxy statement explicitly disclosed that acquisitional growth was one of three components of its growth strategy, and therefore no investors could reasonably believe that the company contemplated only organic growth. Similarly, the Proxy did not represent that the July 2017 Projections were accurate because the Proxy explicitly disclaimed the accuracy of the Projections. Thus, the statements cited by Plaintiffs in the Complaint could not have amounted to a misstatement. The Court agrees. The Company only contemplated Organic Growth The Board of Directors' endorsed the merger as being more favorable to the Company's stockholders than the likely value that might result from other potential transactions or remaining a standalone company. Plaintiffs argue that the Board of Directors' endorsement gave the impression that the Company's stand-alone acquisition plans were due to be abandoned, and that shareholders should not make their voting decision based on any notion that such plans would continue if the Merger was scuttled. Plaintiffs' argument is based on the fact that the UBS and BAML fairness opinions relied on the July 2017 Projections and representations that the July 2017 Projections were the best currently available estimates. Based on the SEC disclosures and the disclaimer, the Court finds that no reasonable stockholder would construe the seven statements at issue to imply that PharMerica's growth plan only contemplated organic growth. In fact, the Proxy all but explicitly told the stockholder not to make such an inference. This conclusion is supported by other federal courts. Plaintiffs here, claimed that financial forecasts in the proxy statement issued by Lionbridge to its stockholders were misleading because those forecasts failed to accurately portray Lionbridge's acquisition strategy. Ultimately, the implication that PharMerica's growth plan at the time of the merger only included organic growth requires the stockholder to assume that the July 2017 Projections are accurate indications of PharMerica's future actions and ignore the many other statements about the Company's future growth plans. Such an assumption is an unreasonable one when put in context. The disclaimer is long, extensive, and clear the projections are not to be relied on as indicative of future events. Even if the disclaimer fails to dissuade the stockholder from inferring that PharMerica intends no future acquisitional growth, PharMerica's SEC filings and other public statements explicitly stating that the Company's plans included future acquisition would. Simply put, nowhere does the Proxy affirmatively state that PharMerica's growth plan only contemplates organic growth. Nor is it implied. To the contrary, the Proxy expressly warns stockholders not to assume future events based on the Projections and states that PharMerica's growth plan indeed includes future acquisition. Thus, Plaintiffs' allegation that the seven Proxy excerpts referring to the July 2017 Projections are affirmative misleading statements because they imply that PharMerica's growth plan at the time of the merger only contemplated organic growth lacks merit. Statements in the Proxy Represent the Accuracy of the July 2017 Projections Plaintiffs also claim that Defendants' statements in the Proxy representing the accuracy of the July 2017 Projections are materially false because the July 2017 Projections fail to include future acquisitions, even though PharMerica contemplated acquisitional growth. The allegation fails to state a Section 14(a) claim for two reasons. First, the July 2017 Projections are literally accurate. Second, the assumption that PharMerica would not make future acquisitions is immaterial under Section 14(a) because the Proxy unambiguously disclosed that assumption to the shareholders. First, to the extent Plaintiffs claim that the July 2017 Projections are literally inaccurate because they exclude acquisitions, that allegation fails. If the July 2017 Projections had concealed from stockholders that they did not include acquisitions, then they might be inaccurate. The claim that the July 2017 Projections, which on their face claim to exclude acquisitions, are inaccurate because they exclude acquisitions fails as illogical. Second, Plaintiffs allege that Defendants represented the July 2017 Projections as accurate, when they knew subjectively that they were not. Plaintiffs argument is based on the notion that the July 2017 Projections relied on an incorrect or false assumption they should have assumed that PharMerica would continue to grow through acquisition, just like the 2015, 2016, and previous 2017 Projections had. As discussed above, PharMerica's growth plan contemplated future acquisitions. As a result, the July 2017 Projections were indeed based on a poor assumption, but this is not actionable by itself. Here, the July 2017 Projections reveal on their face that they assume no future acquisitional growth. While it seems that this assumption was indeed a poor one, shareholders had all the information necessary to draw that conclusion on their own. Thus, to the extent Plaintiffs allege that the July 2017 Projections are misleading based on their underlying assumption that PharMerica would make no future acquisitions, Plaintiffs fail to state a claim under Section 14(a). Second, Plaintiffs have identified no statement that approximates the endorsements made in the cases they rely on. The plaintiffs alleged that Hot Topic required the fairness evaluators to rely only on the inaccurate financial projections and represented the Revised Projections as better reflecting what management believed the Company would be able to achieve during the next five years compared to the LRP Projections. Material Omissions Next, Plaintiffs allege that the Proxy violates Section 14(a) because it omits material information which renders statements in the Proxy misleading. Defendants counter that the allegedly omitted material is either in the Proxy or immaterial and the to the extent there are any omissions Plaintiffs fail to explain how the alleged omissions render any statements in the Proxy misleading. Plaintiffs respond arguing that their Complaint sufficiently alleges omissions actionable under the framework set by Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, 135 S.Ct. 1318, 1327 (2015). To begin, the Court notes that Omnicare involved a Section 11 claim and is therefore not directly applicable to this case, involving a Section 14(a) claim. Courts are split on whether to apply the Omnicare framework to Section 14(a) claims, and the Sixth Circuit has not done so. Whether or not the Court applies the Omnicare framework is immaterial because Plaintiffs' claim fails Omnicare. As discussed, to allege a material omission the plain language of Rule 14a-9 requires a plaintiff to show both materiality and a false or misleading statement as a result of the omission. To show that an opinion was made false or misleading by an omission, Plaintiffs must show that the omitted information caused the opinion to be both subjectively and objectively false so that the opinion is wrong, and the defendant knew it to be so. The Omnicare framework provides a more lenient standard such that the plaintiff need not show that the maker of the opinion did not actually hold the stated belief but that a stockholder must understand an opinion statement to convey facts about how the speaker has formed the opinion and the real facts are otherwise, but not provided. In other words, defendant must have omitted material facts about the defendant's inquiry into or knowledge concerning the statement of opinion. Plaintiffs fail to meet either standard because they have failed to show that material information was omitted. The Proxy Allegedly Omits PharMerica's Financial Projections Including Acquisitional Growth First, relying on Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund, and comparing this case to Laborers' Local #231 Pension Fund v. Cowan, No. 17-478, 2018 WL 3243975 (D. Del. July 2, 2018), the Plaintiffs claim the Proxy omitted the Company's financial projections reflecting the acquisitions scenario and/or valuation information reflecting the Company's true growth plan including acquisitions which made the Board of Director's statement that $29.25 merger price was fair misleading. While the opinion that the merger price was fair fits into the Omnicare framework, there is no Omnicare omission here. A reasonable shareholder might understand the opinion that the $29.25 price was fair to convey that such an opinion was made based on financial valuations that considered PharMerica's intended acquisitional growth given the Company's many statements that it would continue future acquisition. But the fact that the July 2017 Projections did not include future acquisitions was disclosed in the Proxy. The Proxy informs stockholders that the Board, and the financial institutions in forming their opinions, relied on the July 2017 Projections, which excluded acquisitional growth. Thus, Plaintiffs failed to show that the Proxy omitted any material facts, which would make the opinion that the $29.25 price was fair misleading under Section 14(a), including that it omitted material facts about the defendants' inquiry into or knowledge concerning the statement of opinion, as required by Omnicare. Thus, Defendants have made no material misrepresentation or omissions by failing to include acquisition-based growth in the July 2017 Projections. The Proxy Allegedly Omits Statements Informing Stockholders the Fairness Opinions Were Based on Projections That Ignored a Critical Growth Plan and Expectations of PharMerica Next, the Complaint alleges that the Proxy omits statements clearly informing stockholders that the BAML and UBS valuation was performed on projections that ignored a critical growth plan and expectations of the Company. In other words, the Proxy failed to inform stockholders that the fairness opinions were based on financial projections which excluded acquisitions. Defendants respond that the Proxy in fact contains this information. The Court agrees. The Proxy contains statements that explain to the stockholder that PharMerica's future growth plan includes acquisitional growth. The Proxy also explains to stockholders that the July 2017 Projections excluded future acquisitions. Finally, the Proxy explains to stockholders that the fairness opinions relied on the July 2017 Projections. As a result, these allegations fail to state a Section 14(a) claim. The Proxy Allegedly Omits Information Regarding Conflicts of Interest Finally, in their Complaint the Plaintiffs allege that the Proxy omits statements clearly informing stockholders the who/what/when/where of compensation discussions between management and KKR and/or Walgreens and statements clearly informing stockholders when the Board was informed of which specific components of the UBS' and BAML's relationships with KKR and/or Walgreens. The Complaint identifies these omissions as material because stockholders would want to know the information. Defendants argue that the Proxy made extensive disclosures about potential conflicts and that the Plaintiffs' claiming that the stockholders would want to know the exact details omitted does not adequately explain why those omitted details are material to stockholders. Rather than expand on why this information might be material to stockholders, the Plaintiffs reply by listing all the potential conflicts of interest disclosed by the Proxy and repeat their original allegation that the Proxy omits facts disclosing the timing and content of management compensation discussions and banker conflicts. To satisfy the PLSRA's pleading standard, the Plaintiff must explain how the alleged omissions are material. Here, the Plaintiffs have failed to explain how the alleged omissions rise to anything more than allegations that the Proxy lacked immaterial specific details about already thorough disclosures. The Proxy clearly states that some of PharMerica's executive officers have discussed retention agreements and potential post-merger employment. The proxy also details the relationship between all the companies involved in the merger and the financial advisors, and states that those relationships were disclosed to the Board before its vote on the merger. Given these already thorough disclosures, Plaintiffs' claims amount to a mere alleged lack of specific details, none of which are material. Thus, the Court finds the Plaintiffs have failed to allege an actionable omission under Section 14(a). As the Plaintiffs' Complaint fails to adequately allege that the Proxy contains a material misrepresentation or omission, the Section 14(a) claims against Defendants must be dismissed. Scienter and Loss Causation Because the Court has already determined the Plaintiffs failed to plead a material omission or misleading statement actionable under Section 14(a), it need not address whether the Plaintiffs' Section 14(a) claims should also be dismissed for the failure to allege scienter or loss causation. Plaintiffs' Section 20(a) Claim Section 20(a) of the Securities Exchange Act extends liability to every person who, directly or indirectly, controls any person liable under any provision of the Exchange Act, jointly and severally with the person controlled. Because, as explained above, there is no underlying violation of the Exchange Act, the Plaintiffs' Section 20(a) claims must be dismissed along with the underlying Section 14(a) claims. Defendants, PharMerica Corporation's and Kohlberg Kravis Roberts & Co. L.P.'s motion to dismiss is granted. Defendants, Frank E. Collins's, W. Robert Dahl's, Jr, Marjorie W. Dorr's, Patrick G. Lepore's, Geoffrey G. Meyers's, Robert A. Oakley's, Gregory S. Weishar's motion to dismiss is granted. A full-text copy of the District Court's September 23, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/y48nteg7 from Leagle.com. Laborers' Local 231 Pension Fund, Individually and on behalf of all others similarly situated & Daniel Riordan, Individually and on behalf of all others similarly situated, Plaintiffs, represented by Andrew L. Sparks - asparks@dickinson-wright.com - Dickinson Wright PLLC, Danielle S. Myers -dmyers@rgrdlaw.com - Robbins Geller Rudman & Dowd LLP, David T. Wissbroecker - dwissbroecker@rgrdlaw.com - Robbins Geller Rudman & Dowd, LLP, Eun Jin Lee - elee@rgrdlaw.com - Robbins Geller Rudman & Dowd, LLP, Kerry B. Harvey - kharvey@dickensonwright.com - Dickinson Wright PLLC, Patrick J. O'Hara , Cavanagh & O'Hara, 407 E. Adams St., P.O. Box 5043, Springfield, IL 62705 & W. Scott Holleman - scotth@johnsonfistel.com - Johnson Fistel, LLP. Pharmerica Corporation & Kohlberg Kravis Roberts & Co. L.P., Defendants, represented by Craig S. Waldman - cwaldman@stblaw.com - Simpson, Thacher & Bartlett LLP, Donald J. Kelly - dkelly@wyattfirm.com - Wyatt, Tarrant & Combs, LLP, Peter E. Kazanoff - pkazanoff@stblaw.com - Simpson, Thacher & Bartlett LLP, Sean G. Williamson - swilliamson@wyattfirm.com - Wyatt, Tarrant & Combs, LLP & Timothy A. Schenk - tschenk@pbibank.com - PBI Bank Inc. Frank E. Collins, W. Robert Dahl, Jr., Marjorie W. Dorr, Patrick G. Lepore, Geoffrey G. Meyers, Robert A. Oakley & Gregory S. Weishar, Defendants, represented by Andrew Ditchfield - andrew.ditchfield@davispolk.com - Davis Polk & Wardwell LLP, Donald J. Kelly - dkelly@wyattfirm.com - Wyatt, Tarrant & Combs, LLP, Mari Byrne - mari.byrne@davispolk.com - Davis Polk & Wardwell LLP, Sean G. Williamson - mari.byrne@davispolk.com - Wyatt, Tarrant & Combs, LLP & Timothy A. Schenk -tschenk@pbibank.com - PBI Bank Inc. PHOTOFAX INC: Ludemann Sues Over Unpaid Wages and BIPA Breach ------------------------------------------------------------- MICHAEL LUDEMANN, on behalf of himself and all other plaintiffs similarly situated, Plaintiff v. PHOTOFAX, INC., Defendant, Case No. 1:19-cv-06212 (N.D., Ill., Sept. 17, 2019), is a civil action brought for unpaid overtime wages under the Fair Labor Standards Act and the Illinois Minimum Wage Law. The Plaintiff also brings individual and class claims under the Biometric Information Privacy Act. The complaint says the Defendant did not pay the Plaintiff and similarly situated employees proper overtime wages of one and one-half time their regular rate of pay for all hours worked above forty hours in a work week. The Defendants also disguised additional earned compensation as a "bonus" to avoid including that time as compensation for purposes of overtime, i.e., to reduce the regular rate for overtime purposes. In addition, when employees work at Photofax in the office, they are required to scan their fingerprint in its biometric time tracking system as a means of authentication, instead of using only key fobs or other identification cards. While there are tremendous benefits to using biometric time clocks in the workplace, there are also serious risks. Recognizing the need to protect its citizens from situations like these, Illinois enacted the BIPA, specifically to regulate companies that collect and store Illinois citizens' biometrics, such as fingerprints. Despite this law, Photofax disregards its employees' statutorily protected privacy rights and unlawfully collects, stores, and uses their biometric data in violation of the BIPA, says the complaint. The Plaintiff worked for Defendant within the past three years as an employee. Photofax is a nationally-recognized leader in surveillance and investigatory services for insurance companies.[BN] The Plaintiff is represented by: David J. Fish, Esq. Kimberly Hilton, Esq. John Kunze, Esq. Thalia Pacheco, Esq. THE FISH LAW FIRM, P.C. 200 East Fifth Avenue, Suite 123 Naperville, IL 60563 PICK A PART: Class in Cardoso FLSA Suit Conditionally Certified --------------------------------------------------------------- In the case, Mario Cardoso, Plaintiff, v. Pick A Part LLC, et al., Defendants, Case No. CV-18-04759-PHX-SPL (D. Ariz.), Judge Steven P. Logan of the U.S. District Court for the District of Arizona granted the Plaintiff's Motion for Conditional Certification. The Plaintiff worked as a "yard laborer" employee of Pick A Part. Pick A Part is owned by Rush Auto Recyclers, Inc., also a Defendant in the case. The Plaintiff alleges that he and other current and former employees were not paid one-and-one-half times their regular rates of pay for overtime hours worked. The Plaintiff filed a complaint against the Defendants, and other parties, alleging violations of the Fair Labor Standards Act ("FLSA"). The Plaintiff filed the Motion seeking conditional class certification. The Plaintiff seeks conditional certification of a class of all persons who have worked or who are working as yard laborers for Defendants at any time during the three years preceding the lawsuit. The Defendants do not generally object to the conditional class certification requested in the Motion. However, they contest the scope of the conditional class certification proposed by the Plaintiff. The Plaintiff seeks to include former and current employees of Pick A Part and Rush Auto in the proposed conditional class. The Defendants state that Rush Auto owns Pick A Part, along with "Rush Auto," a used car dealership, and "Just Truck and Van," a salvage yard. They argue that the conditional class should not include Rush Auto's employees from Rush Auto and Just Truck and Van because the Plaintiff has failed to provide sufficient information for conditional certification. Judge Logan finds that the Plaintiff has set forth substantial allegations related to all the potential class members that worked for Pick A Part and any of Rush Auto's salvage yards, which would include former and current employees of Just Truck and Van. Thus, the Plaintiff has set forth a reasonable basis for including salvage yard employees of the named Defendants and Just Truck and Van in the conditional class. However, he finds that the Plaintiff has failed to make any substantial allegations against Rush Auto dealership, as none of the allegations in the Complaint nor the information in the Plaintiff's declaration addresses Rush Auto. Accordingly, the Judge finds that current and former employees of Rush Auto and Just Truck and Van are properly included as potential Plaintiffs to the case, but current and former employees of Rush Auto car dealership are not properly included as potential Plaintiffs. The Defendants do not oppose the Plaintiff's request for conditional certification in the Motion. Thus, in light of his foregoing analysis, the Judge finds that the Plaintiff has set forth substantial facts to demonstrate that there is a factual nexus that binds the Plaintiff to the current and former yard laborer employees of Pick A Part, Just Truck and Van, and Rush Auto as victims of a specific, systematic policy seeking to deprive them of overtime payments. Thus, the Motion will be granted to conditionally certify this group as a class for the purposes of the lawsuit. The Defendants also contest (i) the time period of employment for potential class members described in the notice of collection action and lawsuit (the "Notice"); (ii) the language used to describe the Plaintiff's allegations in the Notice; and (iii) the amount of personal information requested by the Plaintiff to provide notice to potential class members. The Judge finds that it is appropriate to limit the conditional class to former and current employees of Pick A Part, Rush Auto , and Just Truck and Van for the three years and 30 days preceding the Court's Order conditionally certifying the class. In response to the Motion, the Defendants seek to add language to the first paragraph of the Notice stating, "The Court has taken no position regarding the merits of the Plaintiff's claims or Defendant's defenses. The issuance of this Notice does not mean that the Plaintiff has prevailed or will prevail on this matter." The Plaintiff does not oppose the Defendants' request. Accordingly, the aforementioned language will be added to the first paragraph of the Notice. Finally, the Plaintiff fails to provide any support for a court order requiring a party to disclose social security numbers or employee identification number information. Therefore, the Judge will only require the Defendants to provide the names, mailing addresses, and e-mail addresses for any potential class members. Based on the foregoing, Judge Logan granted the Plaintiff's motion to conditionally certify a collective class. The collective class of potential Plaintiffs is conditionally certified under 29 U.S.C. Section 216(b) and consists of all former and current employees of Pick A Part, LLC and Rush Auto Recyclers, Inc., including Just Truck and Van, who, at any time between July 22, 2016 and the date of this Order, worked as a yard laborer (or in other positions with similar job titles or job duties) for Pick A Part, LLC and Rush Auto Recyclers, Inc., including Just Truck and Van. The Defendants must provide Plaintiff's counsel with the names, all known addresses, all known email addresses (work and personal), and dates of employment for all Collective Members within five days of the Order. The Plaintiff's counsel will mail a copy of the "Notice of Collective Action" and "Consent Form", reflecting the edits discussed in the Order, via regular U.S. Mail and via electronic mail to all persons contained on the list within seven days of receiving the list from the Defendants. The Plaintiff's counsel may hire a third-party class action administrative company to oversee the mailing of the Notice of Collective Action and Consent Forms. The Collective Members will also be given the option to execute their Consent Forms electronically online. In the body of the email notice, the Plaintiff's counsel will provide a link for electronic execution of the Consent form. All consent forms will be returned to the Plaintiff's counsel who in turn will be responsible for filing them with the Court; and The Defendants will post the Notice of Collective Action and Consent Form in a conspicuous place at each of their businesses for the full 60-day opt in time period. The Defendants will also include the Notice of Collective Action and Consent Form on the first regular payday after the Court's Order with all current yard laborers paystubs. The Collective Members will have 60 days from the date of the mailing of the Notice and Consent Form to file their Notice of Consent opting-in to the lawsuit as Plaintiffs, unless good cause can be shown as to why the consent was not postmarked prior to the deadline. Thirty days before the deadline to opt in, the Plaintiff's counsel will send the Notice of Collective Action and Consent Form to those class members who have not yet joined the lawsuit in the same manner described. A full-text copy of the Court's Aug. 21, 2019 Order is available at https://is.gd/uMLr58 from Leagle.com. Mario Cardoso, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Jason Saul Barrat -- jbarrat@zoldangroup.com -- Zoldan Law Group PLLC, Jessica Elizabeth Miller -- jmiller@zoldangroup.com -- Zoldan Law Group PLLC & Michael David Zoldan -- mzoldan@zoldangroup.com -- Zoldan Law Group PLLC. Pick A Part LLC, an Arizona company & Rush Auto Recyclers Incorporated, an Arizona company, Defendants, represented by Amy Jo Gittler -- Amy.Gittler@jacksonlewis.com -- Jackson Lewis PC. Daniel Rush, an Arizona resident, Defendant, represented by Dale Samuel Coffman -- scoffman@dickinsonwright.com -- Dickinson Wright PLLC. Janet Rush, an Arizona resident, Defendant, represented by Amy Jo Gittler, Jackson Lewis PC & Candess Jean Hunter, Hunter Humphrey & Yavitz PLC. PIPELINE HEALTH: Pechulis et al. Seek Back Pay and Benefits ----------------------------------------------------------- SHELLYE PECHULIS, ANNA MARIE FALCONE, and JODIE HOLICH, individually, and on behalf of all others similarly situated, the Plaintiffs, vs. PIPELINE HEALTH SYSTEMS LLC, a Delaware corporation, the Defendant, Case No. 1:19-cv-06089 (Sept. 11, 2019), asserts that Defendant must provide back pay and benefits to Plaintiffs consistent with the Worker Adjustment and Retraining Notification Act. Pipeline Health shuttered the Westlake Hospital in August 2019 without providing the more than 500 employees who worked there with the required 60-day advance notice required by the WARN Act. The Plaintiffs and the putative class members were technically employed, at least on paper, by Pipeline-Westlake, and every aspect of the Westlake Hospital operation was controlled and directed exclusively by Pipeline Health, including the decision to permanently close the hospital without providing the requisite notice under the WARN Act, the lawsuit says.[BN] Counsel for the Plaintiffs and the Putative Class are: Jay Edelson, Esq. Ari Scharg, Esq J. Eli Wade-Scott, Esq EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: 312.589.6370 Facsimile: 312.589.6378 E-mail: jedelson@edelson.com ascharg@edelson.com ewadescott@edelson.com movca@edelson.com PIZZA BAKER: Court Narrows Claims in Clark FLSA Suit ---------------------------------------------------- The United States District Court for the Southern District of Ohio, Eastern Division, issued an Opinion and Order granting in part and denying in part Defendants' Motion to Dismiss in the case captioned RONALD CLARK, Plaintiff, v. PIZZA BAKER, INC., et al., Defendants. Case No. 2:18-cv-157. (S.D. Ohio) Case No. 2:18-cv-157. (S.D. Ohio). Plaintiff Ronald Clark worked as a delivery driver and assistant manager at a Domino's Pizza. Mr. Clark alleges that as a delivery driver, he was not adequately reimbursed for his expenses and was thereby not paid minimum wage. Clark additionally alleges that the Domino's corporate defendants were his joint employer because of the requirements they imposed on franchisees that ultimately affected the working conditions of delivery drivers. STANDARD OF REVIEW The Court may dismiss a cause of action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Such a motion is a test of the plaintiff's cause of action as stated in the complaint, not a challenge to the plaintiff's factual allegations. The Court must construe the complaint in the light most favorable to the non-moving party. Generally, a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. A complaint's factual allegations must be enough to raise a right to relief above the speculative level. Dismissal of Defendants Lisa M. Burkett and Christopher Baker The Precision and Baker Defendants allege in almost identical responses that Plaintiff fails to state a claim upon which relief can be granted against Defendants Lisa M. Burkett and Christopher Baker, and thus such claims should be dismissed under Federal Rule of Civil Procedure 12(b)(6). Thus, these motions will be considered together as 12(b)(6) motions to dismiss the individual Defendants. Plaintiff Clark alleges that, because Ms. Burkett was the President of Precision Pizza, she had control over the financial aspects and day-to-day operations, pay policies, personnel and payroll decisions, power to stop any illegal pay practices and various other responsibilities. Plaintiff Clark alleges that Baker, because he is the President, Founder, and Owner of Pizza Baker, had control over the same aspects of Pizza Baker as Ms. Burkett had over Precision Pizza. Defendants argue that these factual allegations are conclusory and survive a Rule 12(b)(6) motion. They allege that Plaintiffs' factual assertions against the individual Defendants are mere paraphrasing of the Sixth Circuit's test for when a corporate officer is considered an employer under the FLSA. Plaintiffs have responded that alleging that Burkett is the president, manager, owner and founder of Precision Pizza and Defendant Baker is the president, founder, and owner of Pizza Baker are, without more, enough to survive the motion to dismiss. The FLSA defines an employer as any person acting directly or indirectly in the interest of an employer in relation to an employee. To determine whether an individual is an employer, courts look to the economic reality of the situation. A corporate officer may be an employer if the officer has operational control for the corporation's covered enterprise. Plaintiffs' allegations are sufficient to survive a motion to dismiss. While being the Chief Executive Officer is not sufficient, without more, to qualify an individual as an employer, Plaintiffs have alleged other facts that, if true, would meet the test for who is an employer under the FLSA. Specifically, Plaintiffs have alleged that, in addition to being the President, founder, and owner of their respective pizza establishments, Defendants Burkett and Baker also had control over various operations of the business, including pay policies and personnel and payroll decisions. Defendants' Motion to Dismiss the individual defendants is therefore DENIED. Rule 12(b)(6) Motion to Dismiss Count 6 All three groups of Defendants have moved to dismiss Count 6 of Plaintiffs' Complaint. Count 6 is a request for compensatory and punitive damages under O.R.C. Section 2307.60. Section 2307.60 allows for civil damages for injury to person or property by a criminal act. Punitive damages are not automatic under this statute but rather must be authorized under a separate provision of the Ohio Revised Code. Plaintiffs base their claim on the criminal penalties that are available for willful violations of the FLSA. The Precision and Baker Defendants argue that damages under O.R.C. Section 2307.60 requires an underlying criminal conviction. The Domino's Defendants have joined this argument. The Plaintiffs dispute that a criminal conviction is required, arguing that the Ohio Supreme Court's decision in Jacobsen v. Kaforey, 149 Ohio St.3d 398, 75 N.E.3d 203 (2016) changed that requirement. Whether O.R.C. Section 2307.60 requires a criminal conviction is unclear. Jacobsen v. Kaforey does not resolve the issue. There, the Ohio Supreme Court merely stated that O.R.C. Section 2307.60 independently authorizes a civil action for damages caused by criminal acts. This Court held a status conference on February 19, 2019, to advise the parties of Buddenberg. The Plaintiffs noted that they would be opposed to a stay, and Defendants supported a stay. When the Ohio Supreme Court will issue a decision in Buddenberg cannot be known. In the meantime, Plaintiffs' claims are subject to statute of limitations issues. The merits of the claims can be decided without regard to the damages. Therefore, this Court declines to stay the case pending the Ohio Supreme Court's decision. Because the Ohio Supreme Court will provide a definitive answer to this question, Defendants' Motion to Dismiss Count 6 of the Complaint is DENIED. Should the Ohio Supreme Court decide that a criminal conviction is required, Defendants may renew their Motion to Dismiss at that time. Rule 12(b)(1) Motion to Dismiss Claim for Declaratory Relief The three groups of Defendants have moved to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) the Plaintiff's claim for declaratory relief. They argue that because the Plaintiff no longer works for the Defendants, he presents no possible injury in fact that is concrete and particularized, actual, and imminent as required under the Supreme Court's standing doctrine. Thus, they argue, he lacks standing, and this Court lacks jurisdiction. Plaintiff does not have standing to seek declaratory relief. A plaintiff alleging only past exposure to illegal conduct does not have a claim for a present case or controversy regarding injunctive relief. The Plaintiff's only response to the Precision and Bakers Defendants' argument is that such argument may have merit. Plaintiffs have thus suggested they will dismiss the declaratory relief claim and refile it when a current employee opts into the lawsuit. Plaintiff, however, has failed to follow-through with his own suggestion. Therefore, this Court dismisses without prejudice Plaintiff's claim for declaratory relief against the Precision and Baker Defendants. The Precision and Baker Defendants' Motion to Dismiss the claim for declaratory relief is hereby GRANTED. Domino's Defendants' Rule 12(b)(6) Motion to Dismiss Joint Employer Claims The Domino's Defendants have also moved to dismiss Clark's joint employer claims because Clark has not alleged specific behavior on behalf of each individual Domino's Defendant that makes each a joint employer. Clark's Complaint defines Domino's as including all three Domino's Defendants: Domino's Pizza, Inc.; Domino's Pizza, LLC and Domino's Pizza Franchising. Clark has made allegations against each individual Domino's Defendant. In addition to these allegations, Clark has included a section in his Complaint entitled Joint Employer Allegations" that includes significantly more detailed allegations. Among other things, that section of the Complaint alleges that Domino's requires franchisees to use the PULSE system for recording employees' worktime using individual employee codes, tracking employee work tasks continuously, recording tips, tracking pizza delivery information, maintaining personnel data, monitoring store hours and product prices, and generating sales, revenue, and payroll reports. Domino's does not contend that Clark's allegations are insufficient to support a claim for joint employer status. Domino's argues only that Clark is required to make specific allegations against each individual Domino's employer. Clark responds that he has made such allegations because he defined Domino's as including all three Domino's entities. At the motion to dismiss stage, this Court is bound to take all of a plaintiff's facts as true, and, where an allegation is capable of several inferences, the allegation must be construed in a light most favorable for the plaintiff. Clark has defined Domino's to include all three Domino's entities named as Defendants in this action. Thus, taking all facts and inferences as true, Clark alleges that each Domino's Defendant took the alleged actions. To accept the Domino's Defendants' argument would be to cast doubt on the plausibility of Clark's factual allegations in other words, to suggest that it is somehow implausible that each Domino's entity could have taken the alleged actions. That impermissibly tests the plaintiff's factual allegations rather than the plaintiff's cause of action. The Domino's Defendants have not argued that the alleged facts are insufficient as a matter of law to support a finding that the Domino's Defendants are joint employers. The Domino's Defendants have cited no Sixth Circuit authority, and this Court has located none, prohibiting a plaintiff from grouping together several defendants and alleging that all of them took the same action. In fact, one district court in the Sixth Circuit found that because plaintiffs did not distinguish between the defendants, but alleged all defendants engaged in the acts and violated the FLSA and Ohio wage laws by knowingly, willfully and/or recklessly failing to pay overtime and minimum wages to plaintiffs those plaintiffs clearly contend defendants acted in concert with the intent to deny plaintiffs their statutory rights to overtime. Clark has argued in his Response, however, that the Domino's Defendants are part of a single enterprise. But Clark's complaint contains no mention of the Domino's Defendants being a single enterprise. To the extent that Clark wishes to so allege, he will need to amend his complaint to add such allegations. Defendants' Motions to Dismiss are GRANTED IN PART and DENIED IN PART. Defendants' Motion to Dismiss the Clark's claim for declaratory relief is hereby GRANTED. In all other respects, Defendants' Motions are DENIED. A full-text copy of the District Court's September 23, 2019 Opinion and Order is available at https://tinyurl.com/yxmocpqo from Leagle.com. Ronald Clark, On behalf of himself and those similarly situated, Plaintiff, represented by Andrew Biller , Biller & Kimble, LLC, Andrew P. Kimble - akimble@msdlegal.comm, Biller & Kimble, LLC & Philip J. Krzeski - pkrzeski@msdlegal.com - Biller & Kimble, LLC. Pizza Baker, Inc., Domino's Pizza, Inc., Domino's Pizza, LLC, Domino's Pizza Franchising, LLC & Christopher Baker, Defendants, represented by Mathew A. Parker - mparker@fisherphillips.com - Fisher & Phillips LLP, John A. Hughes , DLA Piper LLP, pro hac vice, Kathleen McLeod Caminiti -kcaminiti@fisherphillips.com - Fisher & Phillips LLP, pro hac vice & Norman M. Leon - norman.leon@dlapiper.com - DLA Piper LLP, pro hac vice. Precision Pizza LLC & Lisa M. Burkett, Defendants, represented by Kathleen McLeod Caminiti , Fisher & Phillips LLP, Michael Jacob Ball - mjball@vorys.com - Vorys Sater Seymour & Pease LLP, Jocelyn M. Hoffman - jmhoffman@vorys.com - Vorys, Sater, Seymour and Pease, LLP, John A. Hughes , DLA Piper LLP, pro hac vice & Norman M. Leon , DLA Piper LLP, pro hac vice. PORTFOLIO RECOVERY: Dayton Sues Over Illegal Collection of Debts ---------------------------------------------------------------- JANICE ASHLEY DAYTON, individually and on behalf of all others similarly situated v. PORTFOLIO RECOVERY ASSOCIATES, LLC, a Delaware limited liability company; and DOES 1 through 10, inclusive, Case No. 19CV354531 (Cal. Super., Santa Clara Cty., Sept. 11, 2019), is a consumer class action brought pursuant to the California Fair Debt Buying Practices Act alleging that the Defendants have engaged in unlawful acts in connection with their attempt to collect charged-off consumer debts from the Plaintiff and the Class. Portfolio Recovery Associates, LLC, is a Delaware limited liability company engaged in the business of purchasing and collecting charged-off consumer debts in California with its principal place of business located in Norfolk, Virginia. The true names and capacities of the Doe Defendants are unknown to the Plaintiff at this time.[BN] The Plaintiff is represented by: Fred W. Schwinn, Esq. Raeon R. Roulston, Esq. Matthew C. Salmonsen, Esq. CONSUMER LAW CENTER, INC. 1435 Koll Circle, Suite 104 San Jose, CA 95112-4610 Telephone: (408) 294-6100 Facsimile: (408) 294-6190 E-mail: fred.schwinn@sjconsumerlaw.com raeon.roulston@sjconsumerlaw.com matthew.salmonsen@sjconsumerlaw.com PRISONER TRANSPO: Groover Pro Bono Counsel Gets $17.9K Costs Refund ------------------------------------------------------------------- In the case, JEFFREY EMIL GROOVER, Plaintiff, v. PRISONER TRANSPORTATION SERVICES, LLC and U.S. CORRECTIONS, LLC, Defendants, Case No. 15-cv-61902-BLOOM/Valle (S.D. Fla.), Judge Beth Bloom of the U.S. District Court for the Southern District of Florida granted the Pro Bono Counsel's Application for Reimbursement of Litigation Expenses. The Court has set forth a policy for reimbursement of legal expenses in cases handled pro bono. Its website sets forth the Assistance with Litigation Expenses Policy. The General Policy states that the counsel who undertake pro bono representation at the Court's request may apply for expense reimbursement. Total reimbursement in any case will not exceed $7,500 absent exceptional circumstances. All approvals and reimbursements will be based on a funds-available basis. There is no guarantee of reimbursement and counsel is urged to use all reasonable means necessary to keep expenses to a minimum. Reimbursement normally will be made at the conclusion of the case by Motion. Interim Requests for Reimbursement will be entertained by Motion prior to the conclusion of the case only on demonstrated need. In the event of an award of attorney's fees or costs to pro bono counsel, the Court may order return of any reimbursements from the award. In addition, if any expenses are reimbursed or paid by any source other than the client or the pro bono counsel (for example, paid through settlement), the amount of funds reimbursed under this program will be returned forthwith. Groover filed his Complaint pro se and was granted leave to proceed in forma pauperis. Upon the Court referring the case to the District's Volunteer Attorney Program, Atty. Frank S. Hedin ("Counsel") agreed to represent Mr. Groover on a pro bono basis and filed a notice of appearance. The Counsel seeks reimbursement of $17,933.43 in expenses relating to his pro bono representation of Mr. Groover. Plaintiff Groover filed his action, individually and on behalf of all others similarly situated, against Prisoner Transportation Services, LLC, U.S. Corrections LLC, and John Does 1-100 alleging civil rights violations pursuant to 42 U.S.C. Section 1983. In the Amended Complaint, Groover, an inmate at the Butner Low Security Federal Correctional Institution in Butner, North Carolina, alleged that U.S. Corrections, LLC transported him from Butner, North Carolina to Fort Lauderdale, Florida in a windowless transport van lacking sufficient ventilation and air conditioning. Groover claimed that he was deprived of sleep, water, and refuge from the heat. As a result of the excessively hot conditions and lack of adequate ventilation in the van, Groover experienced physical and emotional injuries. Groover claimed that the Defendants knew of the conditions to which he was subjected and failed to take appropriate measures. He alleged that numerous other pretrial detainees transported by the Defendants suffered similar inhumane conditions and harm as a result of their transportation practices, violating his and other pretrial detainees' Eighth and Fourteenth Amendment rights. Groover thereafter asked the Court to certify the action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) and 23(b)(3). The litigation and the record in the case are extensive. The Counsel argues that exceptional circumstances exist warranting reimbursement of expenses exceeding $7,500. He volunteered over 1,000 hours of time representing Groover. He took and defended more than 15 depositions, briefed multiple motions with complex legal issues, attended multiple court hearings, traveled regularly to meet with Mr. Groover, and ultimately negotiated a resolution of Groover's claims. The Counsel provided excellent and thorough representation in a case that was exceptionally time-consuming. Judge Bloom agrees that the nature and scope of the claims in the case and the amount of work performed by Counsel constitute "exceptional circumstances." Accordingly, reimbursement of costs in excess of $7,500 is warranted. Regarding the claimed expenses, the Counsel submitted an itemized table of expenses incurred, as required by the Assistance with Litigation Expenses Policy. However, the Assistance with Litigation Expenses Policy provides no guidance regarding what claimed expenses may be reimbursed. The caselaw within the District on motions for reimbursement of pro bono litigation expenses is limited and does not offer a framework for determining what expenses are reimbursable. The Court adopts the standards for determining reimbursable expenses from the Middle District's Plan with slight modification. It will reimburse expenses for the preparation and presentation of the case to the extent they are reasonable, necessary, and otherwise recoverable under this plan. The Counsel submitted 31 itemized claimed expenses for reimbursement. All of the claimed expenses fall into categories of expenses that may be reimbursed. Specifically, the Counsel requests reimbursement of fees for the attendance of court reporters, fees for court hearing transcripts, subpoena and service of process fees, witness fees, expenses for investigation, expenses for an expert, expenses for travel, mediation fees, and fees for public records. Those expenses total $17,933.43. The Judge concludes that expenses in the amount $17,933.43 were reasonable and necessary for the preparation of the case and are properly reimbursable to the Counsel. Accordingly, she granted the Motion. The Clerk of Court is authorized to disburse payment of $17,933.43 to the pro bono Counsel as reimbursement for litigation expenses incurred by the Counsel in representing the Plaintiff in the action. A full-text copy of the Court's Aug. 21, 2019 Order is available at https://is.gd/fzM9GB from Leagle.com. Jeffrey Emil Groover, Plaintiff, represented by Frank S. Hedin -- fhedin@hedinhall.com -- Hedin Hall LLP & David W. Hall, Hedin Hall LLP, pro hac vice. Prisoner Transportation Services, LLC, Defendant, represented by D. David Keller -- david.keller@kellerlandsberg.com -- Keller Landsberg PA & Jose R. Riguera -- Jose.Riguera@kellerlandsberg.com -- Keller Landsberg PA. U.S. Corrections, LLC, Defendant, represented by Erin G. Jackson -- ejackson@johnsonjackson.com -- Johnson Jackson LLC & Ashley Americo Tinsley -- atinsley@johnsonjackson.com -- Johnson Jackson LLC. PROFESSIONAL PROBATION: Harper Appeals Decision to 11th Circuit --------------------------------------------------------------- Plaintiffs Jennifer Essig, Catherine Regina Harper and Shannon Jones filed an appeal from a Court ruling issued in their lawsuit entitled Catherine Harper, et al. v. Professional Probation Service, et al., Case No. 2:17-cv-01791-ACA, in the U.S. District Court for the Northern District of Alabama. The appellate case is captioned as Catherine Harper, et al. v. Professional Probation Service, Case No. 19-13368, in the United States Court of Appeals for the Eleventh Circuit. As previously reported in the Class Action Reporter, this class action lawsuit was filed on October 23, 2017. The nature of suit is stated as prisoner - civil rights. Professional Probation Services, Inc. provides professional court services and sentencing alternatives to courts, communities, and offenders in the United States.[BN] Plaintiffs-Appellants CATHERINE REGINA HARPER, on behalf of herself and those similarly situated, et al., are represented by: Samuel Jacob Brooke, Esq. Emily Early, Esq. Alexandra Marie Jordan, Esq. Sara Michelle Zampierin, Esq. SOUTHERN POVERTY LAW CENTER 400 Washington Ave. Montgomery, AL 36104 Telephone: (334) 956-8200 E-mail: sam.brooke@splcenter.org emily.early@splcenter.org alexandra.jordan@splcenter.org sara.zampierin@splcenter.org Defendant-Appellee PROFESSIONAL PROBATION SERVICES INC. is represented by: Bryan Andrew Grayson, Esq. Devon Kehres Rankin, Esq. Stephen E. Whitehead, Esq. LLOYD GRAY WHITEHEAD & MONROE, PC 880 Montclair Rd., Suite 100 Birmingham, AL 35213 Telephone: (205) 967-8822 E-mail: bgrayson@lgwmlaw.com drankin@lgwmlaw.com swhitehead@lgwmlaw.com Defendant City of Gardendale is represented by: L. Conrad Anderson, IV, Esq. Gregory Carl Cook, Esq. Steven C. Corhern, Esq. Chase T. Espy, Esq. Ginny Willcox Leavens, Esq. Will Hill Tankersley, Jr., Esq. BALCH & BINGHAM, LLP 1901 6th Ave. N, Suite 1500 Birmingham, AL 35201 Telephone: (205) 251-8100 E-mail: canderson@balch.com gcook@balch.com scorhern@balch.com cespy@balch.com gwillcox@balch.com wtankers@balch.com Defendant Kenneth Gomany, in his official capacity, is represented by: Richard Warren Kinney, III, Esq. James W. Porter, II, Esq. PORTER, PORTER AND HASSINGER, P.C. 880 Montclair Rd., Suite 175 Birmingham, AL 35213 Telephone: (205) 322-1744 E-mail: wkinney@pphlaw.net jwporterii@pphlaw.net REAL ESTATE ELEVATED: Hamilton Sues Over TCPA Violation ------------------------------------------------------- Blackstone Hamilton, individually and on behalf of others similarly situated, Plaintiff, v. Real Estate Elevated, LLC, a Nevada limited liability company; Zurixx, LLC, a Utah limited liability company; Tarek El Moussa, an individual; Christina Anstead, an individual and, DOES 1 through 50, inclusive, Defendants, Case No. 2:19-cv-08182 (C.D. Cal., Sept. 20, 2019) is an action brought for Plaintiff and others similarly situated seeking damages and any other available legal or equitable remedies resulting from the illegal actions of Defendants in negligently, knowingly, and/or willfully contacting Plaintiff on Plaintiff's cellular telephone in violation of the Telephone Consumer Protection Act of 1991, thereby invading Plaintiff's privacy. Plaintiff's number is listed on the national Do-Not-Call registry since on or about June 4, 2004. On April 19, 2019, Plaintiff received an unsolicited call from a number belonging to Defendants. The Defendants never received Plaintiff's "prior express consent" to receive calls using an automatic telephone dialing system or an artificial or prerecorded voice on his cellular telephone pursuant to the TCPA, says the complaint. Plaintiff Blackstone Hamilton is a resident of Ventura County, California. Defendants provide goods and services purporting to be real estate investment and education programs and systems using the name Real Estate Elevated Events.[BN] The Plaintiff is represented by: Matthew J. Matem, Esq. Joshua D. Boxer, Esq. MATERN LAW GROUP, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Phone: (310) 531-1900 Facsimile: (310) 531-1901 Email: mmatern@maternlawgroup.com jboxer@maternlawgroup.com RIPPLE LABS: Moves to Dismiss Class Action Complaint ---------------------------------------------------- Stephen Palley, writing for The Block, reports that the Ripple class action continues to poodle forward. The most recent development is a Motion to Dismiss filed on Sept. 19, 2019, by the Defendants. The procedural history to this case is already labyrinthine and involves multiple lawsuits combined into one and several trips back and forth between state and federal court, where this case now resides after an attempt to "remand" it was denied earlier this year and a "Consolidated Class Action Complaint" was filed on August 5, 2019. The Complaint caught some news attention and some people made a really big deal about it because it cited the SEC's Digital Asset Framework, though some commentators (waves) didn't think it mattered all that much. The Defendant's Motion to Dismiss is a 12(b)(6) motion for "failure to state a claim." This means the allegations in the lawsuit can't possibly give rise to any legal liability on behalf of the defendants. Ripple and its CEO Brad Garlinghouse ("the Defendants") argue in their motion that the lawsuit doesn't state a claim for a couple of reasons. First, the Defendants argue that the federal securities laws claims in the lawsuit are barred by a three year "statute of repose" that applies to claims involving the unregistered sale of securities (which is part of what the lawsuit involves.) Interestingly, Defendants don't actually argue that XRP isn't a security in the argument section of their brief, though they do have a throwaway line in the introduction where they say it's a currency not a security. Under federal law, defendants argue that the statute of repose--which is an outside limit on the time in which a claim can be filed, regardless of the plaintiff's knowledge of the claim--is three years. Because XRP was first offered to the public in 2013, plaintiffs reason that a claim based on the alleged failure to register XRP as a security is barred: "[U]nder Plaintiff's own allegations, Defendants offered XRP to the public throughout 2013 through 2015. Accordingly, the three-year statute of repose expired as of 2016 (three years after the sales cited in the May 2015 settlement) and in no case later than May 2018 (three years after the May 2015 settlement agreement in which "Defendants acknowledged that they had sold XRP to the general public," Complaint Par. 25). The Securities Act claims in the Complaint, filed August 5, 2019, are therefore untimely and barred by the statute of repose." Plaintiffs attempt to get around this limitation period in their Complaint by arguing that the XRP was and is a "continuing ICO," so the violation of securities laws is continuing. Defendants argue that this dog doesn't hunt because under a bunch of cases "slow offerings"--"sales of the same security in one offering over an extended period" are still subject to the rule that the statute begins to run as of the date of the first sale. Defendants also argue that the securities law claims fail because plaintiff (1) doesn't allege that he bought his XRP in the initial sale from the defendants but instead (2) may have done so on the secondary market and (3) in any event did not solicit his purchase. For these reasons, they say the securities law claim should be thrown out. The lawsuit also includes California state law claims. Defendants makes some similar arguments here--they say that there's no contractual relationship ("privity") between them and the plaintiff and also that there's no allegation that the XRP transactions at issue took place in California. Related to these points is an argument that no misstatements were made by the defendants to the plaintiff and that alleged misrepresentations aren't detailed with the kind of specificity required by law.[GN] RITE AID: Court Narrows Claims in Silva Mislabeling Suit -------------------------------------------------------- The United States District Court for the Middle District of Pennsylvania issued a Memorandum granting in part and denying in part Defendant's Motion to Dismiss the second amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) in the case captioned KALEY DIANN SILVA and LINDSEY AVENETTI, Plaintiffs. v. RITE AID CORPORATION, Defendant. Civil Action No. 1:18-CV-2135. (M.D. Pa.). Plaintiffs Kaley Diann Silva and Lindsey Avenetti commenced this action against defendant Rite Aid Corporation (Rite Aid). Plaintiffs allege several Pennsylvania common-law and statutory claims against Rite Aid, claiming that certain Rite Aid product labeling was misleading. Plaintiffs are now proceeding on their second amended complaint, alleging claims for intentional and negligent misrepresentation, breach of contract, breach of express and implied warranties, unjust enrichment, and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL). Legal Standards Subject Matter Jurisdiction Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a claim for lack of subject matter jurisdiction. Such jurisdictional challenges take one of two forms: (1) parties may levy a factual attack, arguing that one or more of the pleading's factual allegations are untrue, removing the action from the court's jurisdictional reach or (2) they may assert a facial challenge, which assumes the veracity of the complaint's allegations but nonetheless argues that a claim is not within the court's jurisdiction. In either instance, it is the plaintiff's burden to establish jurisdiction. Failure to State a Claim Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief may be granted. When ruling on a motion to dismiss under Rule 12(b)(6), the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. Standing To establish Article III standing, a plaintiff must demonstrate (1) an injury in fact (2) a sufficient causal connection between the injury and the conduct complained of and (3) a likel[ihood] that the injury will be redressed by a favorable decision. A plaintiff successfully pleads an injury in fact by alleging that he or she suffered an invasion of a legally protected interest' that is concrete and particularized and actual or imminent, not conjectural or hypothetical. A plaintiff seeking injunctive relief bears the burden of establishing that they are likely to suffer future injury' from the defendant's conduct. In class actions, at least one named plaintiff must satisfy this future injury requirement. Plaintiffs' second amended complaint is devoid of any allegation of future injury. Recognizing this deficiency, plaintiffs seek leave to amend to plead additional facts that will support their standing to seek injunctive relief, including but not limited to facts showing that Plaintiffs still plan to purchase Rite Aid products in the future. But intent to purchase Rite Aid nutritional supplements in the future does not alone establish an actual or imminent future injury. And any suggestion that plaintiffs may be harmed by a future purchase of Rite Aid nutritional supplements is far too speculative to justify injunctive relief. When an individual suffers an injury and subsequently becomes aware of the cause of that injury, the law affords that individual the dignity of assuming that they will not act in a manner which results again in the same injury. To suffer the same injury from a future purchase, plaintiffs would have to ignore their knowledge and experience regarding Rite Aid's labeling practices. The Court dismisses their request for injunctive relief. Uniform Commercial Code Claims A buyer who accepts goods under a contract must notify the seller of an alleged breach within a reasonable time after he or she discovers or should have discovered said breach. Failure to notify the seller bars the buyer from obtaining any remedy under the Uniform Commercial Code. Plaintiffs assert claims for breach of contract and implied and express warranties. The second amended complaint is silent as to whether plaintiffs provided notice to Rite Aid of the alleged breach before commencing this litigation. Plaintiffs are therefore barred from obtaining "any remedy" for these alleged breaches. This deficiency warrants dismissal of plaintiffs' claims for breach of contract, implied warranty, and express warranty. The Court will grant plaintiffs leave to amend these claims to assert any facts in their possession pertinent to this pleading requirement. Plaintiffs' breach-of-contract claim will also be dismissed for failure to state a claim. A breach of contract claim in Pennsylvania has three elements: (1) the existence of a contract that includes its essential terms; (2) a breach of that contract and (3) damages resulting from the breach. A sale of goods constitutes a contract under Pennsylvania law. The parties dispute whether product labels can give rise to contractual obligations sufficient to support a breach-of-contract claim. The Court needs not resolve this issue. Assuming arguendo that product labels can create contractual obligations, plaintiffs fail to state a plausible breach of those obligations. In Pennsylvania, the alleged contract should be read as a whole to give effect to its true purpose and must be interpreted to give effect to all of its provisions. The bottles at issue here have front and back labels that together constituted the terms of any contract that might have been formed. Plaintiffs do not allege that Rite Aid breached the totality of the contract or its true purpose. Rather, they only claim that the principal display panel label and price label were misleading when read in isolation. Plaintiffs have not stated a plausible basis for Rite Aid's purported breach, nor have they cited any authority to support the conclusion that the four corners of the alleged contract begin and end with the principal display panel label. The Court will therefore dismiss plaintiffs' breach of contract claim without prejudice and the Court will grant leave to amend. Economic Loss Doctrine Rite Aid also moves to dismiss plaintiffs' UTPCPL and common-law tort claims via the economic loss doctrine. The economic loss doctrine prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract. District courts in the Third Circuit are divided as to whether the economic loss doctrine bars UTPCPL claims. Plaintiffs respond that we are not bound by Werwinski because Pennsylvania law has changed in the 17 years since that decision, with the Pennsylvania Superior Court twice holding that the economic loss doctrine does not bar UTPCPL claims. The Court agrees with plaintiffs and other courts in this circuit in concluding that Pennsylvania's economic loss doctrine, as interpreted by Pennsylvania courts, does not bar plaintiffs' UTPCPL claim. A predictive ruling by the Third Circuit is binding on its district courts absent clear statement by the Pennsylvania Supreme Court to the contrary or other persuasive evidence of a change in Pennsylvania law. District courts need not adhere to a predictive ruling if state courts later prove that prediction to be wrong amounting to a persuasive intervening change in the law. The Court concludes that there is evidence of a persuasive change in Pennsylvania law. Werwinski was based on scant federal and state decisions interpreting Pennsylvania law that shed little light on the question at issue. Its prediction also relied on Pennsylvania's lack of hospitality to tort liability for purely economic loss. But Pennsylvania state court jurisprudence on the economic loss doctrine has changed significantly since that decision. The binding law on Pennsylvania litigants is that of Dixon and Knight, not Werwinski. When federal courts are sitting in diversity jurisdiction and legal rules dictate the outcome, that outcome should be substantially the same as it would be if tried in a state court. The Court declines to apply a federal standard diametrically opposed to the state standard, which would promote the unwelcome practice of forum shopping. The Court will therefore permit plaintiffs' UTPCPL claims. The Werwinski court also predicted that the Pennsylvania Supreme Court would bar intentional fraud claims under the economic loss doctrine. Pennsylvania law has not changed with regard to fraudulent misrepresentation, and courts continue to foreclose fraudulent misrepresentation claims under the economic loss doctrine. Under the circumstances, we remain bound by Werwinski's holding that the economic loss doctrine bars fraudulent misrepresentation claims. The Court also agree with Rite Aid that, assuming a contract exists, the alleged fraud is intrinsic to the contract and does not fall within the Third Circuit's fraudulent inducement exception to the economic loss doctrine. Intentional misrepresentation claims are generally preempted by the economic loss rule, except where a defendant committed fraud to induce another to enter a contract. Plaintiffs have not alleged a fraud external to the parties' alleged contractual obligations, i.e., a fraud that does not relatedly solely to the quality or characteristics of the goods sold. Moreover, this is the type of claim plaintiffs' warranty allegations are designed to address. Plaintiffs' fraudulent misrepresentation claim will therefore be dismissed. Unjust Enrichment Unjust enrichment is the retention of a benefit conferred by another, without offering compensation, in circumstances where compensation is reasonably expected, and for which the beneficiary must make restitution. In the Commonwealth of Pennsylvania, unjust enrichment claims fall into two categories. The first is a quasi-contractual theory of liability, in which case the unjust enrichment claim is pled in the alternative to a breach of contract. The second is a theory based on underlying tortious conduct, in which case the unjust enrichment claim is a companion claim to the underlying tort. Under the second theory, the success of the unjust enrichment claim is dependent on the success of its predicate tort. Plaintiffs' unjust enrichment claim is ambiguous as to whether it sounds in contract or tort. Plaintiffs do not disavow either theory. Nevertheless, this ambiguity is inconsequential because plaintiffs can proceed under either theory. Because plaintiffs' underlying tort claim survives this stage of litigation, plaintiffs may proceed on a tortious theory of unjust enrichment. Plaintiffs may also advance a quasi-contractual claim because we dismissed their claim for breach of contract. The Court will deny Rite Aid's motion to dismiss plaintiffs' unjust enrichment claim. The Court will grant Rite Aid's motion to dismiss plaintiffs' request for injunctive relief as well as their claims for breach of contract, implied warranty, express warranty, and fraudulent misrepresentation. The Court will deny the motion in all other respects. A full-text copy of the District Court's September 19, 2019 Memorandum is available at https://tinyurl.com/y2zbrnlv from Leagle.com. Kaley Diann Silva, an Oregon resident & Lindsey Avenetti, an Oregon resident, Plaintiffs, represented by Matthew E. Moloshok - mmoloshok@hlgslaw.com - Hellring Lindeman Goldstein & Siegal LLP, pro hac vice, Rick Klingbeil - rick@klingbeil-law.com - Rick Klingbeil, PC, Devin J. Chwastyk - dchwastyk@mcneeslaw.com - McNees Wallace & Nurick LLC, Kevin D. Gamarnik - kgamarnik@foleybezek - FOLEY BEZEK BEHLE & CURTIS LLP, pro hac vice, Rachel R. Hadrick - rhadrick@mcneeslaw.com - McNees Wallace & Nurick LLC, Robert A. Curtis - rcurtis@foleybezek.com - Foley Bezek Behle & Curtis LLP, pro hac vice & Stephen L. Dreyfuss - sldreyfuss@hlgslaw.com - Hellring Lindeman Goldstein & Siegal LLP, pro hac vice. Rite Aid Corporation, a Delaware corporation, Defendant, represented by Arthur P. Fritzinger- afritzinger@cozen.com - Cozen O'Connor, F.B. Coller - bcoller@cozen.com - Cozen O'Connor & Paul K. Leary, Jr. - pleary@cozen.com - Cozen O'Connor, pro hac vice ROMEO'S PIZZA: Underpays Delivery Drivers, Branning Suit Asserts ---------------------------------------------------------------- Matthew Branning, On behalf of himself and those similarly situated v. Romeo's Pizza, Inc.; Romeo's Pizza Franchise LLC; Spackler, Smails, and Noonan Pizza Company; Sean Brauser; Ryan Rose; Doe Corporation 1-25; John Doe 1-25, Case No. 1:19-cv-02092 (N.D. Ohio, Sept. 11, 2019), alleges that the Defendants repeatedly and willfully violated the Fair Labor Standards Act and the Ohio Prompt Pay Act by failing to adequately reimburse delivery drivers for their delivery-related expenses, thereby, failing to pay delivery drivers the legally mandated minimum wage wages for all hours worked. Romeo's Pizza, Inc. is a domestic corporation authorized to do business under the laws of Ohio. Romeo's Pizza Franchise LLC is a domestic limited liability company authorized to do business under the laws of Ohio. Sean Brauser founded Romeo's Pizza, Inc., and still owns all or part of it. Ryan Rose is the President and Chief Executive Officer of Romeo's Pizza Franchise LLC. Romeo's Pizza, Inc. and Romeo's Pizza Franchise LLC make up the parent company that oversees operations at all Romeo's Pizza stores. They both exercise control over the work and working conditions of the delivery drivers at the Romeo's Pizza stores. The franchise entities, including Spackler, Smails, and Noonan Pizza Company, act directly and indirectly in the interest of Romeo's Pizza, Inc. and Romeo's Pizza Franchise LLC in relation to the delivery drivers at the store(s) it operates. The Defendants operate approximately 35 Romeo's Pizza restaurants. Thirty-two of their stores are located in Ohio. The Defendants operate the Romeo's Pizza stores as joint employers.[BN] The Plaintiff is represented by: Andrew R. Biller, Esq. BILLER & KIMBLE, LLC 4200 Regent Street, Suite 200 Columbus, OH 43219 Telephone: (614) 604-8759 Facsimile: (614) 340-4620 E-mail: abiller@billerkimble.com - and - Andrew P. Kimble, Esq. Louise M. Roselle, Esq. BILLER & KIMBLE, LLC 3825 Edwards Road, Suite 650 Cincinnati, OH 45209 Telephone: (513) 715-8711 Facsimile: (614) 340-4620 E-mail: akimble@billerkimble.com lroselle@billerkimble.com SANOFI SA: Hagens Berman Files Class Action Lawsuit --------------------------------------------------- Class-action law firm Hagens Berman has filed a second lawsuit regarding Sanofi and Boehringer Ingelheim's intentionally concealed cancer risks in its popular heartburn medication, Zantac. Attorneys are also calling the Food and Drug Administration's consumer-facing recommendations regarding the instance of a carcinogenic chemical in Zantac "highly questionable," and are urging those who take Zantac to consult with their doctors before continuing to take the medicine. The complaint also alleges that scientific testing that employs the FDA's own protocols shows that a single tablet of Zantac may react to form up to 26,000 times the FDA-approved limit of N‑nitrosodimethylamine (NDMA), a chemical which the FDA, EPA and World Health Organization classify as a carcinogen. Although the FDA has announced that it too found NDMA in Zantac and generic ranitidine, albeit at lower levels, the FDA has not urged companies to recall the drug, nor has it recommended that consumers stop taking Zantac. According to the firm's complaint, when one 150 mg tablet of Zantac is ingested, it undergoes a chemical reaction in the stomach to create more than 3,100 times the FDA-approved limit of NDMA. "There is no debate about the toxicity of NDMA. The EPA, World Health Organization, and the FDA itself have labeled it a carcinogen," said Steve Berman, managing partner of Hagens Berman and attorney leading the case for consumers. "That the FDA is recommending that consumers continue to take over-the-counter Zantac, instead of consulting with their physician, or encouraging individuals to take one of the many alternative medications over which there are no safety concerns, is questionable at best." "Virtually every other regulator across the world investigating ranitidine has either recalled the drug, or at the very least, encouraged persons to speak with their physician before taking any further ranitidine. For example, Canada's FDA-equivalent, Health Canada, is urging manufacturers to stop the sale of drugs containing ranitidine," Berman added. "We too urge consumers consult with their doctors before taking any further ranitidine. We understand that the FDA has to conduct a proper investigation and encourage it to do so, but its meek recommendations merely create confusion and put consumers in danger before the FDA has determined whether these drugs are in fact safe. That's just wrong." Sandoz had agreed to recall its ranitidine products worldwide including in the U.S. The lawsuit, filed Sept. 20, 2019, in the U.S. District Court for the District of New Jersey, accuses Sanofi and Boehringer Ingelheim of knowingly manufacturing and selling over-the-counter Zantac containing a concealed carcinogen to millions in the U.S. suffering from heartburn and other gastrointestinal issues, including sour stomach, acid reflux or gastroesophageal reflux disease (GERD). The FDA has established a permissible daily intake limit of 96ng of NDMA, but recent testing using FDA-approved methods detected more than 2,500,000ng of NDMA per 150mg tablet of Zantac. Each Zantac tablet has been found to contain 26,000 times the FDA-approved amount of NDMA that can be safely ingested daily. According to the lawsuit, "Zantac's unprecedented sales were possible only because of a deception perpetrated by the drug's manufacturers on consumers…" The dangers of NDMA have been publicly known for more than 40 years, according to the lawsuit, and the WHO has described NDMA as "clearly carcinogenic." NDMA itself belongs to a family of chemicals called N-nitrosamines, which the EPA refers to as "potent carcinogens." Attorneys say that despite the accumulating scientific evidence showing Zantac exposed users to extremely high levels of NDMA, neither Sanofi nor Boehringer disclosed this risk. If you have concerns about any potential adverse health risks associated with Zantac (or generic ranitidine consumption), Hagens Berman recommends that you discuss the allegations in this lawsuit with your physician. Find out more about the class-action lawsuit against Sanofi for cancer-causing compounds in Zantac. About Hagens Berman Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action law firm with nine offices across the country. The firm's tenacious drive for plaintiffs' rights has earned it numerous national accolades, awards and titles of "Most Feared Plaintiff's Firm," and MVPs and Trailblazers of class-action law. More about the law firm and its successes can be found at hbsslaw.com. Follow the firm for updates and news at @ClassActionLaw. Contact: Ashley Klann, Esq. Tel: 206-268-9363 Email: ashleyk@hbsslaw.com [GN] SANTANDER CONSUMER: Court Refuses Bid to Intervene in Lindblom -------------------------------------------------------------- The United States District Court for the Eastern District of California issued an Order denying Intervenors' Motion for Leave to Intervene as of Right in the case captioned APRIL LINDBLOM, et al., Plaintiffs, v. SANTANDER CONSUMER USA, INC, Defendant. Case No. 1:15-cv-00990-BAM (E.D. Calif.). This action arises out of Plaintiffs April and Timothy Lindblom's loan for the purchase of a vehicle. The operative complaint alleges that they made payments to Defendant, who serviced the loan, using Western Union's Speedpay service. The Speedpay service required a flat fee per transaction (Speedpay Fee) that was purportedly remitted to Defendant in violation of California's Rosenthal Fair Debt Collections Act. Legal Standard Federal Rule of Civil Procedure 24(a) governs a request to intervene as of right. Where an intervenor is not given an unconditional right to intervene by a federal statute, a putative intervenor must satisfy four elements to qualify for as-of-right intervention: (1) the applicant's motion must be timely (2) the applicant must assert an interest relating to the property or transaction which is the subject of the action (3) the applicant must be so situated that without intervention the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest and (4) the applicant's interest must be inadequately represented by other parties. Timeliness An application to intervene, whether as of right or permissive, must be timely. The determination of timeliness is left to the sound discretion of the court. Timeliness is the threshold requirement for intervention as of right and if the motion is untimely the Court need not reach any of the remaining elements of Rule 24(a). In determining whether a motion for intervention is timely, the court considers three factors: (1) the stage of the proceeding at which an applicant seeks to intervene (2) the prejudice to other parties and (3) the reason for and length of the delay. Stage of the Proceeding The first factor in determining timeliness is the stage of the proceeding in which intervention is sought. Although delay can strongly weigh against intervention, the mere lapse of time, without more, is not necessarily a bar to intervention. Thus, to be timely, an applicant need not seek to intervene immediately. Courts consider whether there have been actual proceedings of substance on the merits in the underlying action. Between the initial lawsuit filed on October 30, 2014 (subsequently transferred to this Court on June 29, 2015) and the Intervenors' motion, numerous important litigation milestones have passed. Several motions to dismiss, a motion for judgment on the pleadings, a motion for summary judgment, a motion for class certification, and numerous motions to intervene have been filed and extensively briefed by the parties. The parties attended private mediation while the case was stayed, and the Court issued an amended scheduling order when mediation was ultimately unsuccessful. The parties conducted class discovery for a full year and, after the discovery deadlines were twice extended, class discovery closed on February 27, 2017. All other class related deadlines have long since expired. Class certification has been denied, and, importantly, this case now proceeds as an individual action. Given the length of time and advanced stage of the proceedings, and absent argument to the contrary, the Court finds that this factor weighs against intervention. Prejudice to Other Parties In evaluating the second factor prejudice to other parties, courts have emphasized the seriousness of the prejudice which results when relief from long-standing inequities is delayed. Defendant contends that it is prejudiced by intervention for the same reasons identified in the Court's order denying the prior motions to intervene permissively. The Intervenors, in turn, contend that prejudice is irrelevant to the analysis of intervention as of right, and Defendant nonetheless is not prejudiced because it will face class claims by many of the members in this class sooner or later. However, the Intervenors' argument is misplaced. As an initial matter, a motion to intervene must be timely, regardless of whether intervention is sought permissively or as of right. The parties have participated in substantial discovery and law and motion practice, including motions to dismiss, a motion for judgment on the pleadings, a motion for summary judgment, and a motion for class certification. For the same reasons discussed in the Court's order denying the prior motions to permissively intervene, allowing intervention would derail this case and would require significant and costly discovery to essentially relitigate the case after four years of contentious litigation. Significantly, this case was stripped of its character as a class action upon denial of certification and is now solely an individual action. At this stage in the proceedings where discovery is over and class certification has been denied, requiring the parties to reopen the class allegations and essentially begin the case anew would be highly prejudicial. The Court therefore finds that the prejudice factor of the timeliness determination weighs against intervention. Reason for and Length of the Delay To prevail on a motion to intervene as of right, a proposed intervenor must convincingly explain its delay in filing its motion to intervene. A party seeking to intervene must act as soon as he knows or has reason to know that his interests might be adversely affected by the outcome of the litigation. The Intervenors argue that they could not have intervened as of right prior to either June 11, 2018, when the Supreme Court decided China Agritech v. Resh, 138 S.Ct. 1800 (2018), or June 29, 2018, when the Court denied the prior proposed intervenors' motions for permissive intervention. However, the Intervenors do not adequately explain why they were prevented from seeking to intervene, whether permissively or as of right, prior to that time. Instead, their argument essentially appears to be that this was when they realized that the end result of the protracted litigation would not be entirely to their liking. Where proposed intervenors have made similar arguments, the Ninth Circuit has responded that surely, they should have known the risks of waiting. Here, counsel for Plaintiffs April and Timothy Lindblom and the Intervenors was aware that Defendant was asserting the statute of limitations as its first affirmative defense in the answer filed on October 20, 2015. Plaintiff's first amended complaint, filed on September 29, 2015, set out an equitable tolling defense in anticipation of this defense. The parties accordingly knew as early as September 2015 that the question of whether the statute of limitations would bar Plaintiff's claims, thereby making her an arguably inadequate representative, was a major issue in this case. The Court finds that China Agritech has no bearing on the timeliness of the Intervenors' motion. The Supreme Court's decision in China Agritech concerned the scope of tolling under American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) (American Pipe), which held that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed by the class complaint. Where the class-action status has been denied members of the failed class could timely intervene as individual plaintiffs in the still-pending action, shorn of its class character. In concluding, the Supreme Court emphasized that the watchwords of American Pipe are efficiency and economy of litigation, a principal purpose of Rule 23 as well. Extending American Pipe tolling to successive class actions does not serve that purpose. The contrary rule, allowing no tolling for out-of-time class actions, will propel putative class representatives to file suit well within the limitation period and seek certification promptly. The same policy reasons discussed in China Agritech warrant prohibiting the Intervenors here to piggyback on an earlier, timely filed class action. Allowing them to do so does not serve the purposes of Rule 23. Accordingly, in light of the holding and reasoning of China Agritech, the Court finds that the Intervenors' reasons for and length of delay weigh against intervention. Interest Relating to Property or Transaction A proposed intervenor must demonstrate a significantly protectable interest in the property or transaction which is the subject of the action for intervention to be proper. The Intervenors contend that they each have a significant protectable interest in this litigation because intervention is the only way that their claims can be presented in a class setting. According to the motion, the Intervenors' cases are not worth pursuing individually, but the class collectively paid a significant sum of twenty-two million dollars to Defendant. Defendant counters that the Intervenors have not shown how resolution of Plaintiffs April and Timothy Lindblom's individual claims will actually affect them. The Court agrees. The heart of these motions is the Intervenors' request to resurrect class allegations through intervention. The answer to this request must be no. While the Intervenors contend that they have a protectable interest in litigating their claims in a class setting, this case is no longer a class action. Upon denial of class certification, this case was stripped of its character as a class action and now proceeds solely as an individual action. The Intervenors do not explain how, if at all, resolution of Plaintiffs April and Timothy Lindblom's individual claims will affect them or how their interests are related to the individual claims at issue. Moreover, the Intervenors have not established that their interest in pursuing a particular class action procedure, as opposed to protecting a substantive right, is protectible under Rule 24(a)(2). Accordingly, the Court finds that the Intervenors do not have significant protectable interest in this action and this factor likewise weighs against intervention. Impairment of the Intervenors' Interests The impairment element of Rule 24(a) is met if an absentee would be substantially affected in a practical sense by the determination made in an action. Defendant argues that this element is not satisfied because other means exist to protect the intervenors' interests, including filing individual claims or arbitration. Having found that the Intervenors offered no argument that they have a protectable interest in property or transaction which is the subject of the action because it proceeds solely on Plaintiffs April and Timothy Lindblom's individual claims, it necessarily follows that such an interest would not be impaired by resolution. Moreover, Defendant is correct in its assertion that the Intervenors are not without a remedy and have other means to pursue their interests, such as filing an individual action or arbitration. Although the Intervenors contend that class treatment is more advantageous mere inconvenience caused by requiring the Intervenors to litigate separately is not the sort of adverse practical effect contemplated by Rule 24(a)(2). Accordingly, the Court finds that the impairment element likewise disfavors intervention. Adequacy of Representation Whether the existing parties may adequately represent a proposed intervenors' interest considers three factors: (1) whether the interests of the existing party are sufficiently similar to that of the intervenor such that the legal arguments of the latter will undoubtedly be made by the former (2) whether the existing party is capable and willing to make such arguments and (3) whether the intervenor, if permitted to intervene, would add some necessary element to the proceedings which would not be covered by the parties in the suit. As discussed above, class certification has been denied and this case no longer proceeds as a class action and instead solely concerns Plaintiffs April and Timothy Lindblom's individual claims. Therefore, Plaintiffs April and Timothy Lindblom and the Intervenors do not have the same or sufficiently similar interests and it cannot be said that the Intervenors would add any necessary element that Plaintiffs April and Timothy Lindblom cannot address. The Court therefore finds that the adequacy of representation element has not been satisfied here. The Intervenors' Motion for to Intervene as of Right is denied. A full-text copy of the District Court's September 23, 2019 Order is available at https://tinyurl.com/y46pqxnh from Leagle.com. April Lindblom, Plaintiff, represented by D. Frank Davis - fdavis@davisnorris.com - Davis & Norris, LLP, pro hac vice, John E. Norris - jnorris@davisnorris.com - Davis & Norris, LLP, pro hac vice, Kristan B. Rivers , David & Norris LLP, 2154 Highland Ave S, Birmingham, AL 35205, pro hac vice, Wesley W. Barnett - wbarnett@davisnorris.com - Davis & Norris, LLP, pro hac vice, Benjamin P. Tryk - ben@tryklaw.com - Tryk Law, PC & Brittany Grace McClintick , Davis & Norris LLP, 2154 Highland Ave S, Birmingham, AL 35205 Santander Consumer USA Inc., Defendant, represented by Chad R. Fuller - chad.fuller@troutman.com - Troutman Sanders LLP, David S. Reidy - dreidy@mcguirewoods.com - McGuireWoods LLP, Marc A. Lackner - mlackner@mcguirewoods.com - Mcguirewoods LLP, R. Frank Springfield - fspringfield@burr.com - Burr & Forman, LLP, pro hac vice, Virginia Bell Flynn - virginia.flynn@troutman.com - Troutman Sanders LLP, pro hac vice & Zachary D. Miller , Burr & Forman, LLP, pro hac vice. Vicki Blakely, Steven Lawson, Christy Mitchell, Leslie Williams, James Rolland, Jaynellis Salinas, Kathleen Jones, Kevin Grief, Samuel Carter & Annie Bluitt, Intervenors, represented by John E. Norris , Davis & Norris, LLP & Brittany Grace McClintick , Davis & Norris LLP. Jason Crowley, Juanita Garcia & Janice Teemer, Intervenors, represented by Dargan Maner Ware -dware@davisnorris.com - Davis & Norris, LLP, John E. Norris , Davis & Norris, LLP & Brittany Grace McClintick , Davis & Norris LLP. SENOR FROG'S: Kayat Files Suit Over Unsolicited Marketing --------------------------------------------------------- PETER KAYAT, individually and on behalf of all others similarly situated, Plaintiff, v. SENOR FROG'S ORLANDO, LLC, a Florida Limited Liability Company, Defendant, Case No. 6:19-cv-01824-RBD-DCI (M.D. Fla., Sept. 20, 2019) is an action brought against Defendant to secure redress for violations of the Telephone Consumer Protection Act. To promote its services, Defendant engages in unsolicited marketing, harming thousands of consumers in the process. Through this action, Plaintiff seeks injunctive relief to halt Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. Plaintiff also seeks statutory damages on behalf of himself and members of the class, and any other available legal or equitable remedies, says the complaint. Plaintiff is a natural person who was a resident of Orange County, Florida. Defendant is a Mexican-theme franchised bar and grill.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave., Suite 1205 Miami, FL 33132 Phone (305) 479-2299 Facsimile (786) 623-0915 Email: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 19495 Biscayne Blvd. #607 Aventura, FL 33180 Phone: (305) 975-3320 Email: scott@edelsberglaw.com SENTRY LIFE: Court Dismisses Judgment on Pleadings in Maxon Suit ---------------------------------------------------------------- The United States District Court for the Western District of Wisconsin issued an Opinion and Order granting Defendant's Motion for Judgment on the Pleadings in the case captioned PRUDENCE F. MAXON, on behalf of herself and all others similarly situated, Plaintiff, v. SENTRY LIFE INSURANCE COMPANY, Defendant. No. 18-cv-254-jdp. (W.D. Wis.). This is a proposed class action against defendant Sentry Life Insurance Company about the way it sets premiums for its universal life insurance policies, which combine an investment vehicle with a life insurance policy. Plaintiff Prudence Maxon owns a Sentry universal life policy. Under the terms of Maxon's policy, Sentry sets the monthly premiums based on certain factors that relate to a Mortality Charge. Maxon contends that the expressly stated Mortality Charge factors should be the exclusive factors in setting the monthly premiums. The fundamental issue in this case is a question of contract interpretation. Both sides agree that Maxon's policy is a valid and enforceable contract, but they disagree on the meaning of its terms. Neither side contends that the contract is ambiguous. Sentry contends that its interpretation of the contract is correct and decisive, so it moves for judgment on the pleadings under Rule 12(c). Rule 12(c) allows a party to move for judgment after the pleadings are closed. The standards are the same as for motions to dismiss for failure to state a claim under Rule 12(b)(6), but the court considers all the pleadings, not just the complaint. Judgment on the pleadings is appropriate if the complaint fails to state a plausible claim for relief. The interpretation of an unambiguous contract is a question of law, so when a case turns on a question of contract interpretation, it is amendable to resolution by a motion for judgment on the pleadings. Breach of contract claims The court begins with Maxon's breach of contract claims, which are enumerated as counts I, II and III in her complaint. As a preliminary matter, the parties dispute whether the policy should be construed under the Wisconsin law or Florida law. But at least for purposes of Sentry's motion for judgment on the pleadings, the parties agree that there is no material difference between the law of the two states.1 So common rules of contract interpretation are sufficient for the purposes of this opinion, and the court need not resolve the choice-of-law issue. For count I, Maxon contends that when the policy says that the monthly deduction is based on certain pricing factors, that list of factors is exhaustive, not illustrative. In other words, Maxon argues that Sentry is contractually obligated to base the monthly deduction solely on the factors expressly cited in the policy. But the Court of Appeals for the Seventh Circuit has already rejected this argument in cases involving similar policy provisions: Norem v. Lincoln Ben. Life Co., 737 F.3d 1145 (7th Cir. 2013), and Mai Nhia Thao v. Midland Nat. Life Ins. Co., 549 F. App'x 534 (7th Cir. 2013). Maxon cites many cases outside the Seventh Circuit that have reached the opposite conclusion, particularly Yue v. Conseco Life Ins. Co., 282 F.R.D. 469 (C.D. Cal. 2012). Those extra-circuit cases are of no import. Thao is an unpublished order, so it is a non-precedential decision that is not binding here. But Norem is a published opinion that states the law of this circuit. Maxon contends that her policy language is materially different from that in Norem and Thao. But the differences in policy language defining the cost of the insurance component are minor ones, as shown in the side-by-side comparison set out in Sentry's reply brief. Sentry's policy uses the defined terms Mortality Charges and Mortality Rates, but the definitions in the Sentry policy are substantively the same, or very nearly so, as those in Norem and Thao. Maxon is correct that the Norem court drew some distinctions between the Norem policy and that in Yue. For example, Norem's cost of insurance provision of did not cite mortality experience as the basis for cost of insurance. But these are fine points; no fair reader of Norem could conclude that the court of appeals would reach a different conclusion if it were interpreting Maxon's policy. Norem's conclusion is plainly stated and this court must follow it: absent a promise to use a specific formula when calculating a cost of insurance rate, an insurer is not bound to consider only those factors listed in a cost of insurance provision. For count II, Maxon contends that Sentry breached the policy by including in the cost of insurance some of its administrative expenses, which should have been limited to the five-dollar administrative fee expressly stated in the policy. But this claim, too, is foreclosed by Norem. The policy in Norem included a separate administrative expense charge and the plaintiff argued that the insurer was double-dipping by incorporating administrative costs into the cost of insurance rate. The court rejected this argument because the policy did not define what expenses the administrative fee was intended to cover, and the insurer was therefore free to include administrative expenses as part of its other monthly charges. The same is true here: although the policy states that Maxon will be charged an administrative fee each month, the policy does not define administrative costs or explain what the administrative fee is meant to cover. For count III, Maxon contends that Sentry failed to lower its rates to account for improved mortality expectations. But here again, Maxon fails to differentiate this case from Norem. The Norem court noted that perhaps the plaintiff would have a claim if the insurer charged rates that were wholly divorced from mortality. But unless the rates were utterly unrelated to mortality or the enumerated factors, the insurer's failure to closely track fluctuating mortality expectations did not constitute a breach of contract. Non-contract claims Maxon contends that even if the court grants judgment on her contract claims, it should not grant judgment on count IV (conversion) and count V (declaratory and injunctive relief). Maxon is correct that her conversion claim has different elements than her breach of contract claims.3 But to prove a conversion claim Maxon would have to show that Sentry took money that belonged to Maxon without her consent. The only money that Sentry is alleged to have wrongly taken is the premiums for the insurance component. So to prove conversion, Maxon would have to show that she did not consent to Sentry taking these premiums, which is just another way of saying that Sentry breached the terms of the policy. Maxon cannot prevail on her conversion claim unless she can show a breach of the policy, and that showing is foreclosed by Norem. Maxon's request for declaratory and injunctive relief, is not a separate substantive claim, but rather a request for a certain type for relief. Maxon says that even if she does not have a claim for damages, she may still seek certification of an injunctive class under Rule 23(b)(2). But she does not explain why she would be entitled to declaratory or injunctive relief if she doesn't state a claim under substantive law. The court sees no basis for granting injunctive relief, so it will dismiss count V as well. Defendant Sentry Life Insurance Company's motion for judgment on the pleading is GRANTED. A full-text copy of the District Court's September 19, 2019 Memorandum is available at https://preview.tinyurl.com/y2eoflts from Leagle.com. Prudence F. Maxon, Individually and On Behalf of all Others Similarly Situated, Plaintiff, represented by Angelica M. Ornelas - aornelas@girardsharp.com - Girard Sharp LLP, pro hac vice, Daniel C. Girard - dgirard@girardsharp.com - Girard Sharp LLP, Elizabeth A. Kramer - ekramer@girardsharp.com - Girard Sharp LLP, pro hac vice, Ethan M. Lange , Stueve Siegel Hanson LLP, pro hac vice, Jason Toji Calabro , Stueve Siegel Hanson LLP, 460 Nichols Rd Ste 200, Kansas City, MO, 64112-2003, pro hac vice, John Schirger - JSCHIRGER@MILLERSCHIRGER.COM - Miller Schirger, LLC, pro hac vice, John Allen Yanchunis, Sr. - jyanchunis@forthepeople.com - Morgan & Morgan, Tampa P.A., Joseph Michael Feierabend - jfeierabend@millerschirger.com - Miller Schirger LLC, pro hac vice, Matthew W. Lytle - MLYTLE@MILLERSCHIRGER.COM - Miller Schirger LLC, pro hac vice, Norman Siegel , Stueve Siegel Hanson LLP, pro hac vice, Patrick J. Stueve , Stueve Siegel Hanson LLP, 460 Nichols Rd Ste 200, Kansas City, MO, 64112-2003, pro hac vice & Andrew W. Erlandson -aerlandson@hurleyburish.com - Hurley, Burish & Stanton, S.C. Sentry Life Insurance Company, Defendant, represented by Benjamine Reid - breid@carltonfields.com - Carlton Fields Jorden Burt, PA, Clifton Richard Gruhn -, Carlton Fields, P.A. & Kendall W. Harrison - kharrison@gklaw.com - Godfrey & Kahn, S.C.. SHIRE US: Bid to Certify Class in Intuniv Antitrust Suit Denied --------------------------------------------------------------- In the case, In re INTUNIV ANTITRUST LITIGATION (Indirect Purchasers), Civil Action No. 1:16-cv-12396-ADB (D. Mass.), Judge Allison D. Burroughs of the U.S. District Court for the District of Massachuse denied (i) the Indirect Purchaser Plaintiffs ("IPPs")'s motion for class certification, (ii) the IPPs' motion to exclude the opinions of the Defendants' expert, Prof. James W. Hughes, and (iii) the Defendants' motion to exclude the opinions of the IPPs' expert, Prof. Meredith Rosenthal. The pay-for-delay case involves allegations that the Defendants settled patent litigation over the ADHD drug Intuniv on anticompetitive terms. The IPPs are parents and caretakers who purchased Intuniv (the brand name for extended release guanfacine hydrochloride) or generic Intuniv for a child's or ward's medical needs. They claim that the settlement agreement between brand Intuniv manufacturer Shire LLC and Shire U.S., Inc. and generic Intuniv manufacturer Actavis Holdco US Inc. and Actavis Elizabeth, LLC improperly delayed competition for both brand Intuniv and generic Intuniv, thereby causing them to pay an inflated price for the drug. See generally. The IPPs seek to represent two classes of consumers, a nationwide class and a class of consumers from the 26 jurisdictions that have Illinois Brick repealer laws, who were allegedly overcharged for Intuniv because of the Defendants' anticompetitive conduct: a. The Nationwide Consumer Class: For the period beginning Nov. 15, 2012, to the present: (A) all persons who purchased brand or generic Intuniv in the United States for personal or household use, and who paid the purchase price themselves; and (B) all persons covered by commercial health insurance who purchased brand Intuniv in the United States for personal or household use, and who paid some of the purchase price pursuant to a co-payment or co-insurance provision. b. Illinois Brick Repealer Class: For the period beginning Nov. 15, 2012, to the present, all persons in Arizona, California, Florida, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, West Virginia, Wisconsin, and the District of Columbia: (A) who paid the purchase price themselves for brand or generic Intuniv in the United States for personal or household use; and (B) all persons covered by commercial health insurance who purchased brand Intuniv in the United States for personal or household use, and who paid some of the purchase price pursuant to a co-payment or co-insurance provision. Before the Court are (i) the IPPs' motion for class certification, (ii) the IPPs' motion to exclude the opinions of the Defendants' expert, Prof. Hughes, and (iii) the Defendants' motion to exclude the opinions of the IPPs' expert, Prof. Rosenthal. Both sides argue that the other side's expert proffers opinions that are inadmissible pursuant to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc. Judge Burroughs finds that the Defendants seemingly briefed the admissibility of Prof. Rosenthal's opinions as a way to provide the Court with 17 additional pages as to why class certification should be denied, even if Prof. Rosenthal's opinions are accurate and relevant. The three of the Defendants' 20 pages of briefing that address perceived errors in Prof. Rosenthal's opinions raise issues that go to the weight rather than the admissibility of those opinions. The Defendants do not credibly argue that Prof. Rosenthal's model is not probative of the total damages suffered by the putative classes, and the Judge therefore denies the Defendants' motion to exclude her opinions. The Judge also denies the IPPs' motion to exclude the opinions of Prof. Hughes. She concludes that Prof. Hughes has applied reliable principles and methods to data and facts that would be relevant to measuring damages in the case. As with Prof. Rosenthal, the perceived flaws in Prof. Hughes' methodology go to the weight rather than the admissibility of his opinions. And, although prescriptions cannot function as a direct stand-in for consumers, Prof. Hughes' report demonstrates that there is a relationship between the number of Intuniv consumers and the number of Intuniv prescriptions such that the number of prescriptions may serve as a useful proxy for at least estimating numbers of consumers. The Judge will not prolong her opinion with an application of the numerosity, commonality, typicality, and adequacy requirements of Federal Rule of Civil Procedure 23(a) because the parties' dispute centers on the predominance requirement of Rule 23(b)(3) and the she finds that issue dispositive. The crux of the issue is whether the IPPs have shown either that the number of uninjured class members is de minimis or have designed a reasonable and workable mechanism to allow the Defendants to challenge the class members' individual, purported injury while still ensuring that common issues of law and fact will predominate over those individual issues. Where the IPPs have failed to put forth a reasonable and workable plan to weed out the more than 10,000 uninjured class members in each putative class and the Defendants intend to challenge any attestation that individual class members were injured, the IPPs have not shown that questions of law or fact common to class members [will] predominate over any questions affecting only individual members. The IPPs' motion for class certification is therefore denied. Accordingly, based on the foregoing, Judge Burroughs denied (i) the motion for class certification, and (ii) the motions to exclude expert opinions. A full-text copy of the Court's Aug. 21, 2019 Memorandum and Order is available at https://is.gd/oBSpPg from Leagle.com. Sherri Cummisford, Consolidated Plaintiff, represented by Allan Kanner -- a.kanner@kanner-law.com -- Allan Kanner & Associates, pro hac vice, Conlee S. Whiteley -- c.whiteley@kanner-law.com -- Kanner & Whiteley, LLC, pro hac vice, Denise L. Morris, Ademi & O'Reilly LLP, John D. Blythin, Ademi & O'Reilly LLP, Layne Hilton -- l.hilton@kanner-law.com -- Kanner & Whiteley, LLC, pro hac vice, Mark A. Eldridge, Ademi & O'Reilly LLP, Ruben Honik -- rhonik@golombhonik.com -- Golomb & Honikl, P.C., pro hac vice & Shpetim Ademi, Ademi & O'Reilly. Carmen Richard, Consolidated Plaintiff, represented by Allan Kanner, Allan Kanner & Associates, pro hac vice, Bradley Winston, Winston Law Firm, Conlee S. Whiteley, Kanner & Whiteley, LLC, pro hac vice, David J. Stanoch, Golomb & Honik, P.C., pro hac vice, Layne Hilton, Kanner & Whiteley, LLC, pro hac vice & Ruben Honik, Golomb & Honikl, P.C., pro hac vice. Tina Picone, Plaintiff, represented by Allan Kanner, Allan Kanner & Associates, pro hac vice, Annemieke A. Tennis, Kanner & Whiteley, LLC, pro hac vice, Conlee S. Whiteley, Kanner & Whiteley, LLC, pro hac vice, David J. Stanoch, Golomb & Honik, P.C., pro hac vice, Layne Hilton, Kanner & Whiteley, LLC, pro hac vice, Ruben Honik, Golomb & Honikl, P.C., pro hac vice & Stephen Herbert Galebach, Galebach Law Office. Shire U.S. Inc. & Shire LLC, Defendants, represented by David S. Shotlander , Frommer Lawrence & Haug LLLP, pro hac vice, David A. Zwally -- dzwally@haugpartners.com -- Haug Partners LLLP, pro hac vice, Michael F. Brockmeyer , Frommer Lawrence & Haug LLP, pro hac vice, Nicholas F. Giove -- ngiove@haugpartners.com -- Haug Partners LLP, pro hac vice, Fred A. Kelly, Jr., Haug Partners, Joshua S. Barlow -- jbarlow@haugpartners.com -- Haug Partners LLP & Tarae L. Howell -- thowell@nixonpeabody.com -- Nixon & Peabody, LLP. Actavis Elizabeth LLC & Actavis Holdco U.S., Inc., Defendants, represented by Aviv A. Zalcenstein, Goodwin Procter LLP, pro hac vice, Alicia Rubio-Spring, Goodwin Procter LLP, Christopher T. Holding, Goodwin Procter, LLP, Sarah K. Frederick, Goodwin Procter LLP & Srikanth K. Reddy, Goodwin Procter, LLP. Actavis Inc., Defendant, represented by Aviv A. Zalcenstein, Goodwin Procter LLP, pro hac vice & Christopher T. Holding, Goodwin Procter, LLP. Teva Pharmaceuticals USA, Inc., Intervenor, represented by Christopher T. Holding, Goodwin Procter, LLP. SWEETWORKS CONFECTIONS: Judgment on Pleadings in Green Partly OK'd ------------------------------------------------------------------ In the case, DOMINIQUE GREEN, on behalf of herself and others similarly situated, Plaintiff, v. SWEETWORKS CONFECTIONS, LLC, Defendant, Case No. 18 CV 902-LTS-SN (S.D. N.Y.), Judge Laura Taylor Swain of the U.S. District Court for the Southern District of New York granted in part and denied in part the Defendant's motion for judgment on the pleadings. Defendant SweetWorks is a confectionary company organized under Delaware law with its principal place of business in New York. It manufactures, markets and sells Sixlets, a chocolate candy product sold across the country both at retail establishments and online. On Dec. 29, 2017, the Plaintiff, a New York City resident, purchased a 3.5 oz. box of Sixlets for $0.50 at a Kmart store in Manhattan. Sixlets are mass produced and packaged in a non-transparent box of standardized size and composition, with a standardized quantity of candy in each box. Each Sixlets box also contains slack-fill. Slack-fill is the difference between the actual capacity of a container and the volume of product contained therein. The Plaintiff alleges that the Defendant manufactures, markets and sells Sixlets with non-functional slack-fill which serves no legitimate purpose, and misleads consumers about the quantity of food they are purchasing. Green brings the putative class action against SweetWorks, claiming that the Defendant's packaging and marketing of its Sixlets candy product is misleading. The Plaintiff's First Amended Class Action Complaint ("FAC") seeks injunctive relief under New York General Business Law Section 349 (Count I), as well as damages for violations of New York General Business Law Sections 349, 350, and 350-a(1) (Counts II and III) and common law fraud (Count IV). She contends that the Court has jurisdiction of the action pursuant to the Class Action Fairness Act ("CAFA"). The Defendant moves, pursuant to Federal Rule of Civil Procedure 12(c), for judgment on the pleadings. It argues that, because the FAC states that the number of putative class members is "unknown," and because the Plaintiff and the Defendant are both citizens of New York, the FAC fails to establish that the class is composed of at least 100 members and that there is minimal diversity. Next, the Defendants contend that, even if the Plaintiff has satisfied her burden to demonstrate subject matter jurisdiction, one of three exceptions to CAFA jurisdiction "logically must apply." Judge Swain holds that the Defendant proffers no argument or evidence in support of its assertion that "at least one of the exceptions to CAFA jurisdiction logically must apply," relying primarily on its contention that the Plaintiff has failed to establish minimal diversity. In light of the dearth of evidentiary support for the Defendant's argument, the Judge finds that the Defendant has not met its burden of demonstrating that an exception to CAFA jurisdiction applies. Accordingly, she finds that it has jurisdiction of the action pursuant to 28 U.S.C. Section 1332(d) and denies the Defendant's motion for judgment on the pleadings to the extent that it seeks dismissal of the action for lack of subject matter jurisdiction under CAFA. The Defendant next argues that the Plaintiff lacks standing to seek injunctive relief under New York General Business Law Section 349 and that the Court therefore lacks jurisdiction of her claims insofar as she seeks injunctive relief. The Judge holds that any assertion that the Plaintiff intends to purchase Sixlets in the future is belied by her own allegation that, had she known that the Sixlets box contained non-functional slack-fill, she would not have bought the Sixlets at the given price. Lacking the ability to show certainty of impending future injury, the Plaintiff cannot make the showing required by Supreme Court and Second Circuit authority. The Plaintiff has proffered no valid basis for variation of the well-established requirements for standing. Accordingly, the Judge holds that the Plaintiff lacks standing to seek injunctive relief under section 349 and Count I of the FAC is dismissed. The Defendant also argues that the Plaintiff's claims under sections 349, 350, and 350-a must be dismissed because (1) the FAC fails to allege plausibly that the slack-fill contained in the Larger Sixlets Box is non-functional and therefore misleading, and (2) even if the slack-fill contained in Larger Sixlets Box is nonfunctional, the Plaintiff cannot plead plausibly that the packaging was materially misleading because the Larger Sixlets Box clearly and accurately discloses the net weight and total product count. The Judge finds that because these physical differences bear on the way in which each product must be packaged and handled, a simple comparison between the empty space in a Milk Duds box and that contained in a Sixlets box is insufficient to allege plausibly that the slack-fill in the Sixlets box is non-functional. The Plaintiff's comparison of the Larger Sixlets Box with the Smaller Sixlets Box is similarly insufficient to support a plausible inference of non-functional slack-fill. Even if, however, a comparison to the Smaller Sixlets Box could be sufficient to establish, at the pleading stage, that the Larger Sixlets Box contains non-functional slack-fill, she finds that the Plaintiff's section 349, 350 and 350-a claims must still be dismissed because she has failed to allege plausibly that the Sixlets box is materially misleading, as required under New York law. And because the FAC does not allege plausibly that the slack-fill contained in the Sixlets box is non-functional, or that the Larger Sixlets Box is materially misleading to a reasonable consumer under the circumstances, Counts II and III of the FAC are dismissed for failure to state a claim upon which relief can be granted. Finally, because the Plaintiff has not alleged facts sufficient to support plausibly an inference that the Larger Sixlets Box packaging was materially misleading as to the quantity of Sixlets candies in the box she purchased and, given the content disclosures on the box, she cannot establish that she reasonably relied on any quantity impression derived solely from the size of the box, her common law fraud claim must also be dismissed for failure to state a claim upon which relief may be granted. For the foregoing reasons, Judge Swain denied the Defendant's motion for judgment on the pleadings to the extent that it seeks dismissal of all of the Plaintiff's claims for lack of subject matter jurisdiction under CAFA. She granted it to the extent that it seeks dismissal of the Plaintiff's injunctive relief claim for lack of standing and the Plaintiff's remaining causes of action for failure to state a claim. The Judge dismissed the First Amended Class Action Complaint, and the Clerk of Court is directed to enter judgment accordingly and to close the case. The Memorandum Opinion and Order resolves docket entry no. 31. A full-text copy of the Court's Aug. 21, 2019 Memorandum Opinion and Order is available at https://is.gd/r9q0Ir from Leagle.com. Dominique Green, on behalf of herself and others similarly situated, Plaintiff, represented by Anne Melissa Seelig, Lee Litigation Group, PLLC, William Michael Brown, Lee Litigation Group, PLLC & C.K. Lee -- cklee@leelitigation.com -- Lee Litigation Group, PLLC. Sweetworks Confections, LLC, Defendant, represented by Daniel Eduardo Guzman -- dguzman@harrisbeach.com -- Harris Beach PLLC & Philip G. Spellane -- pspellane@harrisbeach.com -- Harris Beach PLLC. TEXAS: Court Refuses to Appoint Attorney in Rogers Inmate Suit -------------------------------------------------------------- The United States District Court for the Western District of Texas, San Antonio Division, issued an Order denying Order denying Plaintiff's Motion to Appoint Attorney in the case captioned AARON MICHAEL ROGERS, #2268676, Plaintiff, v. KERR COUNTY SHERIFF W.R. "RUSTY" HIERHOLZER, and SYLVIA FORAKER, Defendants. Civil No. SA-19-CV-724-DAE(ESC). (W.D. Tex.). The record reflects that Plaintiff filed his pro se Complaint and moved to proceed in forma pauperis (IFP) in this action. The Court ordered Plaintiff to show cause within twenty-one days why his Complaint should not be dismissed for failure to state a non-frivolous claim. Plaintiff subsequently advised the Court of his change of address and on September 4, 2019, the Order to Show Cause was re mailed to Plaintiff's new address. Plaintiff's response is due on or before September 25, 2019. Plaintiff now asks the Court to appoint him counsel to represent him in this action which he describes as a class action. The Court will deny the motion. Courts may appoint counsel pursuant to 28 U.S.C. Section 1915(e)(1) in IFP proceedings. However, there is no automatic right to the appointment of counsel in a civil lawsuit. Rather, a district court has discretion to appoint counsel based on the type and complexity of the case presented and the abilities of the individual pursuing it. Appointment of counsel in a civil case is considered a privilege, not a constitutional right, and should be allowed only in exceptional circumstances. In this case, Plaintiff has not demonstrated that the prerequisites for a class action exist and further, as a pro se, Plaintiff may not proceed as a class representative. Nor has Plaintiff demonstrated either that exceptional circumstances are present in his case or that, based on the record, appointment of counsel is appropriate under the applicable legal standards under 28 U.S.C. Section 1915(e). Plaintiff's Motion to Appoint Attorney is DENIED. Plaintiff's response to this Court's Order to Show Cause is due on or before September 25, 2019. If Plaintiff fails to comply with the Show Cause Order, his Complaint can also be dismissed for failure to prosecute and failure to comply with this Order. A full-text copy of the District Court's September 19, 2019 Order is available at https://tinyurl.com/y6qr9ut6 from Leagle.com. Aaron Michael Rogers, Plaintiff, pro se. TEXAS: Inmates Sue Over Lack of Hepatitis C Drug ------------------------------------------------ Gabrielle Banks and Keri Blakinger, writing for Houston Chronicle, reports that a federal lawsuit filed Sept. 19, 2019, says the Texas prison system is "callously" denying thousands of inmates access to a costly hepatitis C medicine that is widely considered the standard of care, potentially exposing them to liver damage and other health complications. At least 18,000 inmates in the state's 104 facilities have been diagnosed with the chronic virus. And up to 30 percent of Texas' roughly 148,000 inmates may be infected--a similar rate to prisons across the nation. Failure to treat incarcerated patients as well as their peers in the outside world amounts to "cruel and unusual punishment," and deliberate indifference to a serious medical need and the policy violates the Eighth Amendment and the Americans with Disabilities Act, according to the class-action lawsuit filed in Corpus Christi. Inmates in at least a dozen states have filed similar lawsuits, and litigants in Massachusetts, Minnesota, California, Colorado and Pennsylvania settled and now have access to the costly and highly effective medication sought by Texas prisoners. Louisiana officials made an agreement with the drugmaker to get preferential pricing for the hepatitis C drug so that they can treat everyone, according to the class action lawyers. Attorney Jeff Edwards, Esq. whose Austin firm filed the lawsuit on behalf of a McConnell Unit inmate, said he is aware of at least one instance a few years ago in which a prisoner's request for the medication was denied. Weeks after his release, the man died of liver cancer, which his doctors suggested was a result of hepatitis C. "The state has a duty to provide access to adequate medical care to its inmates," Edwards said. "Instead, they're violating sick people's rights by rationing medical care and not providing medicine that will cure a disease." "This case is about basic human rights--when you go to prison, you don't give up your right to medical care," he said. The lawsuit specifically targets Lannette Linthicum, the medical director for TDCJ; Owen Murray, director of Correctional Managed Healthcare at UTMB; and eight members of the Correctional Managed Healthcare Committee. TDCJ is aware of the lawsuit and it is currently being reviewed by the agency, an agency official said. Kurt Koopman, spokesman for UTMB, said he could not comment on pending litigation. The bloodborne virus, transmitted through shared syringes, razors, toothbrushes or tattoo needles, is prevalent in prison, and end-stage liver disease, often from hepatitis, is the third leading cause of death in the Texas prison system, according to a prison medical official. Officials noted an increase in the amount of money spent on hepatitis C treatment at the last board meeting of the prison health care program. It accounted for 22 percent of $54 million in total drug costs in the first three quarters of fiscal year 2019. But despite the expense, Dr. Melanie Roberts, a pharmacist with UTMB who spoke about TDCJ's treatment, explained last year that medication can still represent a long-term cost savings when compared to the expense of treating end-stage liver disease. As of May 2018, nearly 1,200 prisoners were battling the end stage of the disease. The standard of care for hepatitis C is Direct-Acting Antiviral medication, or DAA, a course of pills known to cure more than 90 percent of patients. Yet the lawsuit alleges that the prison health care system prescribes the drug only to patients who already have liver damage. Murray, the head of the managed care program for inmates, testified before the Texas Legislature on May 29, 2014 that DAA is highly effective at curing hepatitis C and noted that every state prison struggles with this issue. Murray explained in a back-and-forth with then-Rep. Sylvester Turner and a committee of his colleagues that it can cost $750 to $1,000 per pill for treatment, which lasts about 12 weeks. "Its cure rate is anywhere from 92 to 100 percent," Murray told lawmakers, "but the problem is in our cost system, it would run $63,000 per treatment." While the costs of these medications have dropped since 2014, they're still in the tens of thousands of dollars. "It's a huge problem and a large population, and a huge cost," said Sen. John Whitmire, a Houston Democrat who chairs the senate's Criminal Justice Committee. "There is a treatment but the legislature hasn't sufficiently funded it." Dr. F. Blaine Hollinger, director of the Eugene B. Casey Hepatitis Research Center at Baylor College of Medicine and former chairman of the FDA's Blood Products Advisory Committee, said DAA should be prescribed regardless of how advanced the disease is. Most people infected with hepatitis C can be asymptomatic for decades, but 25 to 40 percent eventually progress to cirrhosis, which can lead to liver cancer, Hollinger said. If a liver transplant or specific antiviral therapy is not provided, they will eventually die of their disease, he said. Patients who don't get the medication are also at an increased risk of contracting diabetes, leukemia, lymphoma, skin conditions and kidney disease, according to Hollinger. "If you've got a person who has hepatitis C regardless of where they are, you should attempt to treat them," Hollinger said. "You make that decision without thinking of cost--cost should not be a factor in deciding." "If you have a treatment that's available that can cure somebody, it's important that they all be cured," he said. The Texas prison system has a long history of troubles with medical care. In 1973, J.W. Gamble sued the prison system after a 600-pound bale of hay fell on him at a prison textile mill. The Huntsville inmate was injured and later alleged that the system offered him inadequate medical care and then punished him for refusing to work. The case ended in a landmark 1976 Supreme Court ruling that "deliberate indifference" to a prisoner's serious medical needs counts as "cruel and unusual punishment" in violation of the Eighth Amendment. Since then, allegations of subpar medical care remain a perennial complaint among prisoners, including a lack of access to dentures and concerns about sweltering conditions in prisons without air conditioning. Over the past year, roughly a dozen prisoners wrote the Houston Chronicle with complaints about the inability to get treatment for hepatitis. Some sent medical records or grievances, while others simply detailed their medical struggles in handwritten letters. "With all the advancements they have made in the treatment of hepatitis C, it's a shame that these treatments are not widely available to those who are inside TDCJ," said Jennifer Erschabek, executive director of Texas Inmate Families Association. The organization, which advocates for prisoner rights and monitors prison conditions, fields hundreds of letters per year from inmates across the state. The inability to get treatment is a "common complaint" among those who have hepatitis C, Erschabek said. One man said doctors had been telling him he was on "the top" of the treatment list for more than six years--but he still hadn't managed to received care. "The long and short of it is I feel they will end up killing me in there," he wrote. "If I was in the world I'd (have) been treated 6.5 years ago." Others echoed his concerns. Some said they'd likely gotten the disease before their incarceration, while others admitted it may have come from unsanitary prison tattoos. "The doctor I see told me there (was) nothing she can do," a prisoner on the Polunsky Unit wrote, attaching test results to a letter. "One of the main problems is that we're uneducated in medical matters. I am enclosing some of the results of my blood work I had done, or let me say the standard protocol and all they do for me. This is it. This is all the treatment I get for Hep-C. Just blood work, and they tell me the results." Lawyers in the class action say this is typical--that just because patients may have scarring on their liver, it doesn't mean UTMB doctors have cleared them for the DAA medication. According to the most recent data, 977 prisoners were diagnosed with hepatitis C in the first five months of 2019. That's down slightly from the 1,156 recorded in the first five months of 2018. Those numbers don't necessarily represent new diagnoses, but rather the first time a prisoner has tested positive after entering the system. It's not clear how many of the prisoners were infected before prison and how many after they arrived at TDCJ. The Texas prison population has a higher incidence of hepatitis C than the general population, according to prison medical officials. Last year at a meeting of the Correctional Managed Healthcare Committee--which oversees prison medical care--Roberts, the UTMB pharmacist, explained that about 1.5 percent of the general population has hepatitis C, while as much as 12.9 percent of the prison population is infected. [GN] TORRANCE REFINERY: Judge Weighs Class Certification --------------------------------------------------- Martin Macias Jr, writing for Courthouse News Service, reports that an attorney for residents affected by a 2015 oil refinery explosion in LA County told a federal judge Sept. 22, 2019, that proceeding under a class action provides the best remedy for property owners. A gasoline processing machine at an oil refinery in Torrance, a coastal city in southwest LA County, exploded on Feb. 18, 2015, sending chemical-laden ash and fumes towards homes surrounding the facility. During the explosion, a piece of damaged machinery landed near a tank of toxic hydrofluoric acid, a substance which, if exposed to oxygen, could have had a deadly impact on the more than 300,000 residents in surrounding communities, according to a report by the U.S. Chemical Safety Board. Residents near the Torrance Refinery -- owned previously by Exxon-Mobil -- alleged environmental negligence in a 2017 class action lawsuit, claiming the company knowingly operated the refinery under inadequate safety standards. Substandard safety protocols and shoddy repair work created the conditions for the 2015 explosion, the complaint said, adding that new owners PBF Energy have only continued the negligent behavior, exposing residents to harmful chemicals. Lead plaintiff Arnold Goldstein said he was walking outside and exposed to chemical ash during the explosion, leading to breathing problems and a later diagnosis of asthma. U.S District Judge Dale Fischer denied class certification in April, writing in her order that residents failed to adequately state which claims they want certified for each subclass and what relief each subclass seeks. Fischer held that plaintiffs failed to meet their numerosity, adequacy and commonality requirements for all subclasses. In a hearing last September 22 on the plaintiffs’ renewed class certification motion, residents’ attorney Matthew Edling, Esq. told Fischer that class certification would allow for proper analysis of which residents are affected by the plume, or concentration of hydrocarbons in the soil. "There’s not much debate that there’s a plume," Edling told Fischer. "We’re saying the plume is much larger and we need to find out who was impacted and how much." A subclass of residents whose soil may not be impacted but whose air was exposed to toxins would benefit from having defined "emission zones," Edling said. Michael Finnegan, Esq. -- mfinnegan@pillsburylaw.com -- an attorney for PBF Energy Company and Torrance Refining Company, told Fischer that he objects to the "soil subclass" representatives since some residents require passive remediation of contaminated soil while others seek more rigorous action. That residents allege lost use of their property in their complaint creates a confusing paradigm since they define their class members as having elevated health risks, said Finnegan, an attorney with Pillsbury Winthrop Shaw Pittman. Finnegan argued that resolving property claims through individual lawsuits would be more suitable since the parties’ experts have submitted conflicting evidence regarding contamination levels in the area surrounding the refinery. "The testing results are variable and inconsistent," Finnegan said. "Testing must be done on a property-by-property basis." Fischer told both parties that the renewed motion for class certification is under submission but did not indicate when she would issue a ruling. Exxon-Mobil is represented by Dawn Sestito, Esq. -- dsestito@omm.com -- with O’Melveny and Myers. TRULIEVE INC: Lyttle Sues Over Privacy Rights Breach Under FCRA --------------------------------------------------------------- LOGAN LYTTLE, on his own behalf and on behalf of all similarly situated individuals, Plaintiff v. TRULIEVE, INC., a Florida Profit Corporation, and PERSONAL SECURITY CONCEPTS, LLC, a Florida Limited Liability Company, Defendants, Case No. 8:19-cv-02313 (M.D. Fla., Sept. 17, 2019), accuses the Defendants, including subsidiaries, divisions and affiliates, of violating the Fair Credit Reporting Act of 1970. The Plaintiff says he intends to hold the Defendants accountable for violating his federally protected privacy rights and failing to provide him with information and notice to which he was entitled pursuant to the FCRA. Trulieve violated the FCRA by procuring consumer reports on Plaintiff and other putative class members for employment purposes, without first providing a clear and conspicuous disclosure--in a document that consists solely of the disclosure--that it may obtain a consumer report on them for employment purposes, before obtaining a copy of their consumer report; by obtaining consumer reports on the Plaintiff and other putative class members without their written authorization; by taking adverse employment action against Plaintiff and other putative class members without first providing Plaintiff and other affected class members with pre-adverse action notice, a copy of their consumer report, and a summary of their FCRA rights, says the complaint. The Plaintiff is a consumer/applicant, who was the subject of a consumer report used for employment purposes by Defendant Trulieve, Inc. Trulieve routinely obtains and uses information in consumer reports to conduct background checks on prospective employees and existing employees, and frequently relies on such information, in whole or in part, as a basis for adverse employment actions, including denial of employment and terminations.[BN] The Plaintiff is represented by: Marc R. Edelman, Esq. MORGAN & MORGAN, P.A. 201 N. Franklin Street, Suite 700 Tampa, FL 33602 Telephone: 813-223-5505 Facsimile: 813-257-0572 E-mail: MEdelman@forthepeople.com ULTA SALON: $3.4MM Settlement in Wise Labor Suit Has Prelim OK -------------------------------------------------------------- In the case, ELIZABETH WISE, et al., Plaintiffs, v. ULTA SALON, COSMETICS & FRAGRANCE, INC., Defendant, Case No. 1:17-cv-00853-DAD-EPG (E.D. Cal.), Judge Dale E. Drozd of the U.S. District Court for the Eastern District of California granted the Plaintiffs' unopposed motion for preliminary approval of a class action settlement. Prior to the amendment of its practices in August 2018, Defendant ULTA's non-exempt California salon professionals were paid in accordance with its Path to Abundance Salon Commission Plan Document ("PTA"). Under the PTA, salon professionals were paid the greater of either their earned commissions or their hourly rate multiplied by the number of hours worked. Salon professionals' commissions were calculated by multiplying the value of the salon services performed in a given week by the applicable commission percentage. In addition to providing salon services such as "cuts and colors," which increased their commission, salon professionals were required to perform tasks that did not increase their commission. The Plaintiffs contend that ULTA failed to provide rest breaks, to pay separately and hourly for rest breaks and non-productive time, and to pay overtime and penalties for non-compliant meal and rest breaks at the correct rate. According to them, based on these alleged violations, ULTA also failed to provide accurate itemized wage statements to salon professionals and to pay all wages due and owed at the end of their employment. They further contend that these violations constitute unfair business practices and subject ULTA to civil penalties and injunctive relief under the Private Attorneys General Act ("PAGA"). Plaintiff Wise filed the class action on June 23, 2017, asserting causes of action for: (1) failure to provide paid rest periods; (2) failure to pay separately and hourly for rest and recovery periods and other non-productive time; (3) failure to pay premiums for non-compliant meal and break periods at the correct rate; (4) failure to pay overtime at the correct rate; (5) failure to provide accurate itemized wage statements; and (6) violation of Business and Professions Code Section 17200. On Nov. 22, 2017, Plaintiff Wise filed a first amended complaint adding claims for failure to pay all wages due upon termination of employment and for civil penalties pursuant to the PAGA. Plaintiff Zepeda filed a separate class action in Orange County Superior Court on Nov. 13, 2017. Therein, Plaintiff Zepeda asserted causes of action for: (1) failure to provide accurate itemized wage statements; (2) failure to pay overtime at the correct rate; (3) failure to timely pay wages; and (4) violation of Business and Professions Code Section 17200. Plaintiff Zepeda's case was removed to the U.S. District Court for the Central District of California on Dec. 14, 2017, and was transferred to the Eastern District of California on June 4, 2018. On Aug. 8, 2018, Plaintiff Zepeda's case was consolidated with Plaintiff Wise's action. On Jan. 24, 2019, the parties participated in a second mediation with mediator Steven Serratore. On Feb. 4, 2019, mediator Serratore provided the parties with a detailed mediator's proposal. On Feb. 7, 2019, both parties accepted that proposal. On May 14, 2019, the parties executed the settlement agreement currently before the Court. Pursuant to the proposed settlement agreement, the Plaintiffs seek to certify a class of all current and former non-exempt California ULTA Salon Professionals who earned commissions, non-discretionary bonuses and/or additional hourly compensation under the Defendant's Path to Abundance Salon Commission Plan Document during at least one pay period between Dec. 30, 2016 and Aug. 25, 2018." Through the settlement class, the Plaintiffs seek to recover for all claims for failure to provide rest periods, failure to pay separately and hourly for rest and recovery periods and other non-productive time, failure to pay premiums for non-compliant meal and rest periods at the correct rate, failure to pay overtime, failure to provide accurate itemized wage statements, as well as for failure to pay all wages due and owed at the termination of employment. Under the proposed settlement, the Defendant would pay a maximum settlement amount of $3.4 million. The agreement provides for the following allocation of that amount: (i) $16,000 for the fees and costs of the Settlement Administrator; (ii) a payment to the LWDA in the amount of $56,250 as its share of the settlement for civil penalties pursuant to the PAGA; (iii) $20,000 in service payments to plaintiffs, with each receiving $10,000; (iv) $60,000 to be paid to class counsel for reasonable costs; (v) attorney's fees of $1,133,333.33 (one-third of the settlement amount); and (vi) the remaining net settlement amount of $2,114,416.67 to be distributed to class members The net settlement amount will be distributed to the class members based on the number of pay periods during which each class member earned commission, non-discretionary bonuses and/or additional hourly compensation under the Defendant's Path to Abundance Plan Document during the class period. No submission of a claim form will be required for the participating class members to receive their settlement shares. The proposed settlement also provides that the settlement amount is non-reversionary. Any funds associated with checks that have not been cashed after the expiration of 180 days will be redistributed to the cy pres beneficiaries, Court Appointed Special Advocates for Children of San Joaquin and Court Appointed Special Advocates for Children of Los Angeles. Each designated beneficiary will receive fifty percent of the uncashed funds. The Plaintiffs seek an order from the Court: (1) preliminarily certifying the class for purposes of settlement, with appointment of the Plaintiff as the class representatives, appointment of the Plaintiffs' counsel as the class counsel, and approval of Simpluris, Inc. as the settlement administrator; (ii) preliminarily approving the settlement agreement; (iii) approving the proposed form and method of notice to be disseminated to the class; and (iv) scheduling the hearing date for the final approval of the class settlement. Judge Drozd granted the Plaintiffs' motion for preliminary approval of class action settlement. The preliminary class certification under Rule 23 is approved. He appointed (i) the Plaintiffs' counsel, Mayall Hurley P.C., Polaris Law Group, LLP, Law Offices of Choi & Associates, and Hyun Legal, APC as the class counsel; (ii) the named Plaintiffs, Elizabeth Wise and Julie Zepeda, as the class representatives; and (iii) Simpluris, Inc. as the claims administrator. The Judge approved the proposed notice as it conforms with Federal Rule of Civil Procedure 23. The proposed settlement detailed is approved on a preliminary basis as fair and adequate/ The hearing for final approval of the proposed settlement is set for Dec. 17, 2019 at 9:30 a.m. The motion for final approval of class action settlement must be filed at least 28 days in advance of the final approval hearing, in accordance with Local Rule 230. The Plaintiffs' proposed settlement implementation schedule is adopted. A full-text copy of the Court's Aug. 21, 2019 Order is available at https://is.gd/gyYwin from Leagle.com. Elizabeth Wise, Plaintiff, represented by John Paul Briscoe -- jbriscoe@mayallaw.com -- Mayall Hurley, PC, Nicholas John Scardigli -- sscardigli@mayallaw.com -- Mayall Hurley, PC, Robert Joshua Wasserman -- rwasserman@mayallaw.com -- Mayall Hurley, PC, William J. Gorham, III -- wgorham@mayallaw.com -- Mayall Hurley, PC & Vladimir Joseph Kozina -- jkozinaj@mayallaw.com -- Mayall Hurley P.C. Julie Zepeda, Plaintiff, represented by Dennis Hyun -- info@hyunlegal.com -- Hyun Legal, APC, Edward Wonkyu Choi -- dward.choi@choiandassociates.com -- Law Offices of Choi & Associates & William Lucas Marder -- bill@polarislawgroup.com -- Polaris Law Group, LLP. Ulta Salon, Cosmetics & Fragrance, Inc., Defendant, represented by Courtney Marguerite Osborn -- cosborn@littler.com -- Littler Mendelson PC, John C. Kloosterman -- Jkloosterman@littler.com -- Littler Mendelson, P.C., Kai-Ching Cha -- kcha@littler.com -- Littler Mendelson, P.C., Alexis A. Sohrakoff -- asohra@uber.com -- Littler Mendelson PC, Julie A. Stockton -- jstockton@littler.com -- Littler Mendelson P.C. & Richard H. Rahm -- rrahm@littler.com -- Littler Mendelson, P.C.. UMBERTOS OF HALLANDALE: Vazquez Seeks Overtime Pay -------------------------------------------------- PABLO ANTONIO VAZQUEZ, and other similarly situated individuals, the Plaintiff, v. UMBERTOS OF HALLANDALE, INC. d/b/a UMBERTO'S RESTAURANT & PIZZERIA; PIZZA MANIAC, INC. d/b/a Umberto's of Pompano; and JOSEPH CORTEO, the Defendants, Case No. 0:19-cv-62281-RAR (S.D. Fla., Sept. 13, 2019), seeks to recover money damages for unpaid overtime wages under the Fair Labor Standards Act. The Plaintiff worked for the Defendants from approximately Jan. 15, 2003 to Aug. 11, 2019. In total, the Plaintiff worked approximately 152 compensable weeks under the Act, or 152 compensable weeks if we count 3 years back from the filing of the instant action. However, the Defendant did not properly compensate Plaintiff for hours that Plaintiff worked in excess of 40 per week, the lawsuit says.[BN] Attorneys for the Plaintiff are: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC E-mail: msaenz@saenzanderson.com 20900 NE 30 th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 UNITED INSURANCE: Court Narrows Claims on Insurance Suit -------------------------------------------------------- The United States District Court for the Southern District of Georgia, Savannah Division, issued an Order granting in part and denying in part Defendant's Motion to Dismiss in the case captioned MINERVA BARRETT, executrix of the estate of Chester Barrett, and on behalf of all others similarly situated, Plaintiff, v. UNITED INSURANCE COMPANY OF AMERICA, INC., Defendant. Civil Action No. 4:17-cv-215. (S.D.N.Y.). The thrust of Plaintiff's claims is that United used racially discriminatory practices in selling life insurance policies to Mr. Barrett and other African-Americans. Specifically, she contends that United charged Mr. Barrett a higher premium for the policy than United charged white customers and sold him an inferior product than those available to white customers. This matter is before the Court on United's Motion to Dismiss Plaintiff's Amended Complaint. STANDARD OF REVIEW Under a Rule 12(b)(6) motion to dismiss, a court must accept the allegations in the complaint as true and construe them in the light most favorable to the plaintiff. A complaint must state a facially plausible claim for relief, and a claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. United's Motion to Dismiss Plaintiff's Claims for Lack of Standing United contends that though Plaintiff alleges a laundry list of illegal practices committed by United, she fails to plausibly allege that Mr. Barrett suffered any injuries from many of the practices on that list. Without an injury in fact, United maintains, Plaintiff has no standing to complain of those practices. United argues that Plaintiff only has standing to assert two claims: (1) that Mr. Barrett paid discriminatory premiums and (2) that he paid premiums that exceeded the face amount of his policy. There are at least three distinct forms of standing: taxpayer standing, individual standing, and organizational standing. To establish standing under any of these forms a plaintiff must satisfy three requirements: (1) injury-in-fact (2) a causal connection between the asserted injury-in-fact and the challenged action of the defendant and (3) that the injury will be redressed by a favorable decision. The Court agrees that Plaintiff's Amended Complaint alleges some practices that United employed generally without any allegation that these practices affected Mr. Barrett. Specifically, there are three areas of alleged wrongdoing discussed below that appear to have not caused Mr. Barrett any injury. Because Plaintiff has not alleged that Mr. Barrett suffered a concrete and particularized injury in a personal and individual way from these practices, she has no standing to complain of these practices. First, Plaintiff alleges that United encouraged and trained its agents to, in the event of lapse, persuade its customers to purchase new policies to replace lapsed Policies rather than to reinstate the lapsed policies, which had remaining cash value. The remaining cash value was forfeited to United. She also contends that United willfully, intentionally, deceptively and wrongfully caused or encouraged the lapse of many Policies. However, Plaintiff makes no allegation that Mr. Barrett's policy ever lapsed or that this alleged practice ever affected him in any way. Further, there is no allegation that he ever forfeited any cash value to United. Thus, Plaintiff has failed to establish any injury in fact as to United's practices regarding lapsed policies. Likewise, Plaintiff alleges that United engaged in defective record-keeping practices and that United also failed to establish record-keeping systems or policies and procedures to effectively administer the Policies. She contends that, as a result, policyholders and their beneficiaries are not likely to discover that their premiums had been misapplied or converted, or that their debit life policies had lapsed or that policy death benefits were due to them. However, she has not alleged that Mr. Barrett was harmed by United's flawed record keeping. She does not allege that his premiums were misapplied or converted, that his policy lapsed, or that his beneficiary was not paid any death benefits. Thus, even if United mishandled the records of Mr. Barrett's policy, Plaintiff has not alleged any economic damage or other injury as a result of that mishandling, and, thus, she lacks standing to complain about United's record-keeping practices. Additionally, Plaintiff contends that United has failed to pay all of the insurance proceeds to the beneficiaries of insureds after they had received notice of the death of the insured. In other instances, United failed to notice owners of insurance proceeds who were entitled to notice pursuant to the laws of the states which have adopted unclaimed property acts. Once again, Plaintiff does not tie this generalized allegation to Mr. Barrett. There is no indication whatsoever in her Amended Complaint that any beneficiary of Mr. Barrett has been deprived of any payment or other benefit due to them under the Policy. Thus, Plaintiff also lacks standing to bring claims based on these practices. However, United reads the remainder of Plaintiff's claims too narrowly. For example, United argues that Plaintiff alleges that United purposefully designed and sold inferior insurance products to African-Americans, but she does not allege any facts showing that United refused to offer Mr. Barrett products that were being offered to similarly situated Caucasians. Plaintiff claims that Mr. Barrett was an African-American customer of United and that United prohibited its agents from selling African-American customers ordinary life insurance products that it sold to Caucasians. Plaintiff makes numerous allegations of how the policies sold to African Americans, including Mr. Barrett's policy, were inferior to the traditional policies that were sold to Caucasians. She further contends that this practice was motivated by United's discrimination against African Americans, including Mr. Barrett. Thus, Plaintiff contends, this practice caused Mr. Barrett to suffer a violation of his Constitutional rights as well as economic damages for which she seeks economic redress. Taking these allegations together, Plaintiff plausibly asserts that Mr. Barrett suffered an actual, personal, and concrete injury that was caused by United's practice of only offering inferior life insurance products to its African-American customers and that this injury will be redressed by a favorable decision in this case. Consequently, Plaintiff has standing to assert claims based on that practice and others outlined in the Amended Complaint. The Court GRANTS IN PART and DENIES IN PART United's Motion to Dismiss Plaintiff's claims for lack of standing. The Court GRANTS this portion of United's Motion as to Plaintiff's claims that United failed to keep accurate records, allowed policies to lapse, and failed to pay death benefits,3 but DENIES this portion of United's Motion as to all other claims. United's Motion to Dismiss Plaintiff's Claims for Untimeliness United argues that all of Plaintiff's claims are untimely. It contends that the longest potential limitations period for Plaintiff's claims is six years, and that the limitations period began to run on those claims on the date that United issued Mr. Barrett's policy, December 18, 1984. United further contends that the Amended Complaint does not allege any facts that would warrant tolling of the statue of limitations. Additionally, United argues that Plaintiff cannot plausibly allege that Mr. Barrett could not have discovered his causes of action through reasonable diligence. In response to United's Motion to Dismiss, Plaintiff does not dispute the applicable statutes of limitation as to each of her claims or that those statutes would have ordinarily run before the commencement of this lawsuit. Plaintiff states her position on these points as follows: It is not worth disputing the applicable statutes of limitations on each of Plaintiff's claims, as they would have clearly run absent United's concealment. Georgia courts have long held that the statute of limitation in a contract dispute begins to run on the date that suit on the claim can first be brought. Under normal circumstances, Plaintiff's claim would have expired in December of 1990. The parties agree on the applicable statutes of limitations and do not dispute that each limitations period would have ordinarily commenced upon the issuance of Mr. Barrett's insurance policy. In other words, as Plaintiff admits that her claims are time-barred absent fraudulent concealment, the only question for the Court is whether the amended complaint alleges facts sufficient to establish the elements of fraudulent concealment. Therefore, the Court limits its substantive discussion to this issue. For reasons explained below, the Court finds that Plaintiff has plausibly alleged fraudulent concealment to toll the statute of limitations for the bulk of her claims. However, the Court finds that she has not sufficiently alleged fraudulent concealment as to any claims based solely on the fact that Mr. Barrett made premium payments in excess of his policy value. Thus, the Court dismisses as untimely any claim based on that fact alone. Choice of Law as to Fraudulent Concealment The parties give short shrift to the issue of which law federal or state applies to their tolling by fraudulent concealment arguments. They cite both federal and state law interchangeably with no discussion as to which should apply. Though the parties gloss over this choice of law issue, given the importance of that choice to the Court's decision, it's worthwhile to explain that Georgia law controls the question of tolling as to all of Plaintiff's claims. Here, Plaintiff alleges that United discriminated against Mr. Barrett on account of his race in the formation of his contract by selling him an inferior and more expensive insurance policy than the insurance policies United sold to Caucasians. As explained above, while Plaintiff also generally alleges that United committed other discriminatory acts after the formation of contracts, such as failing to pay death benefits to the beneficiaries of African-American policy holders, she does not have standing to pursue those claims because she does not allege that Mr. Barrett suffered any injuries due to those acts. Accordingly, her claims of racial discrimination pertain to the formation of the insurance contract between Mr. Barrett and United. These claims would have been cognizable prior to the 1991 amendment to Section 1981. Thus, Georgia's two-year statute of limitations for personal injury torts as well as its rules for tolling the limitations period apply to Plaintiff's Section 1981 claims. The Court will apply Georgia's law regarding fraudulent concealment when assessing the timeliness of not only Plaintiff's state claims but also her federal claims. Fraudulent Concealment Under Georgia Law Under Georgia law, if the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud. To establish fraudulent concealment under this statute sufficient to toll the statute of limitation, a plaintiff must prove that: (1) the defendant committed actual fraud involving moral turpitude, (2) the fraud concealed the cause of action from the plaintiff and (3) the plaintiff exercised reasonable diligence to discover his cause of action despite his failure to do so within the applicable statute of limitation. Pleading Requirements of Federal Rule of Civil Procedure 9 Federal Rule of Civil Procedure 9(b) requires allegations of fraud to be stated with particularity. This requirement applies not only to claims of fraud, but also to allegations of fraudulent concealment of claims. In Brooks v. Blue Cross and Blue Shield of Fla., Inc., 116 F.3d 1364, 1371 (11th Cir. 1997), the Eleventh Circuit explained that a complaint must plead four things to satisfy the requirements of Rule 9(b): (1) the precise statements or omissions made by the defendant (2) the time and place of each such statement and the person responsible for the statement (3) the content of the statements and the manner in which they misled the plaintiff and (4) what the defendant obtained as a result of the fraud. However, alternative means are also available to satisfy the rule. Whether Plaintiff Plausibly Alleges Fraudulent Concealment Plaintiff's Amended Complaint lists some generalized and conclusory allegations regarding United's fraudulent concealment. However, Plaintiff also specifically describes the nature and subject of United's fraudulent statements and makes allegations regarding the timing and circumstances of those statements. For instance, Plaintiff contends that United's agents and representatives took the following specific actions which constitute actual fraud that concealed United's discrimination from Mr. Barrett. This Court reaches the same conclusions when looking at the totality of Plaintiff's allegations. Plaintiff has plausibly alleged that United's representatives actively concealed from Mr. Barrett the unlawful discrimination underlying his life insurance policy at the time United sold the policy to him. For one, like the insurer in Moore, United designated rates for African Americans as standard or substandard as opposed to preferred for whites. Through this labelling, United effectively disguised from Mr. Barrett the racially discriminatory nature of those rates. Moreover, Plaintiff has plausibly alleged that United's representatives knew the falsity of these misrepresentations at the time they made them to Mr. Barrett. United's deceptive sales pitch to Mr. Barrett was part of a nationwide scheme through which United targeted low income, unsophisticated and minority segments of the population, especially in the Southeastern United States, including Chester Barrett, and developed insurance products for sale to these consumers. In other words, when the Amended Complaint is taken as a whole, Plaintiff plausibly alleges that United's agents knew the unlawfulness underlying Mr. Barrett's policy. They knew that his insurance policy was inferior and that his premium rates were higher than those of United's Caucasian customers. Despite their knowledge, these agents made representations to Mr. Barrett, at the time they sold the policy to him and when collecting premiums from him, that actively concealed that unlawfulness. This active deception is the gravamen of Plaintiff's right of action, and, under Georgia law, the mere silence of United is treated as a continuation of the original fraud and as constituting a fraudulent concealment, and the statute of limitations does not begin to run against such right of action until such fraud is discovered, or could have been discovered by the exercise of ordinary care and diligence. The Court rejects United's arguments that the entirety of Plaintiff's Amended Complaint must be dismissed for noncompliance with the statutes of limitations. However, the Court recognizes that discovery in this case may produce additional evidence that could support United's contentions of untimeliness. Accordingly, the Court DENIES United's motion to dismiss the entirety of Plaintiff's claims for failure to comply with the statutes of limitations WITHOUT PREJUDICE. If supported by the undisputed material facts, United may again raise its timeliness arguments at the motion for summary judgment stage. However, for the reasons stated below, the Court finds that any claims based solely on the fact that Mr. Barrett paid more in premiums than the face amount of his policy are untimely. Untimeliness of Claims that Mr. Barrett's Premium Payments Exceeded Face Amount of his Policy Throughout Plaintiff's pleadings, she emphasizes that Mr. Barrett paid $14,649.05 in premiums for a policy with a death benefit of $5,000. It is not clear if Plaintiff is asserting a claim based on the mere fact that Mr. Barrett paid more in premiums than his policy is worth. However, even if this allegation alone could independently support a cause of action, that claim would be untimely. Again, as to all her claims, Plaintiff concedes that, absent fraudulent concealment, her claims are barred by the statute of limitations. However, unlike with the discrimination underlying Mr. Barrett's policy, Plaintiff has failed to plausibly allege fraudulent concealment as to the mere amount of Mr. Barrett's premium payments or the face value of his policy. To the extent that Plaintiff asserts an independent cause of action based solely on the fact that Mr. Barrett paid premiums to United that exceeded the amount of his life insurance policy, the Court GRANTS United's Motion to Dismiss that claim as untimely. United's Motion to Dismiss Plaintiff's State Law Claims for Failure to State a Claim United does not attack the substantive plausibility of Plaintiff's federal civil rights claims in its Motion to Dismiss. However, it does argue that the Court should dismiss Plaintiff's state law claims for failure to state a claim. Breach of Contract Plaintiff does not oppose United's Motion to Dismiss her claim for breach of contract. Accordingly, the Court GRANTS United's motion as to this claim and DISMISSES Plaintiff's claim for breach of contract. Money Had and Received United argues that Plaintiff's claim for money had and received must be dismissed because that theory is available only when no enforceable contract exists between the parties. Plaintiff opposes this motion and argues that there is a question of public policy as to whether the contract was ever enforceable, and whether Plaintiff is entitled to equitable relief for premiums paid. Nonetheless, for the reasons explained herein, Plaintiff's Section 1981, negligent misrepresentation, and fraudulent inducement claims survive United's Motion to Dismiss. The parties have not addressed what effect those claims and the factual allegations underlying them have on Plaintiff's claim for money had and received. For instance, the parties have not addressed whether fraud and discrimination underlying the parties' transaction would void the contract between United and Mr. Barrett, much less cited applicable authority on that question. Given the uncertainty produced by this dearth of argument and authority, the Court DENIES United's Motion to Dismiss Plaintiff's claim for money had and received. Negligent Misrepresentation and Fraudulent Inducement United's arguments for dismissal of Plaintiff's negligent misrepresentation and fraudulent inducement claims largely mirror its arguments against fraudulent concealment. It claims that Plaintiff's claims do not satisfy the pleading requirements of Rule 9(b), that United's agents' statements were mere puffery or opinion and that plaintiff fails to allege that Mr. Barrett reasonably relied on those statements. The Court rejects these arguments for the same reasons that it rejected United's arguments regarding fraudulent concealment. Plaintiff sufficiently alleges that United agents made fraudulent statements to Mr. Barrett when selling him his policy and when servicing that policy at his home. As explained above, United agent's statement to Mr. Barrett that his policy was legitimate was not merely puffery. Rather, that was a representation that Mr. Barrett's policy complied with the law, which United's agents knew to be false at the time they made the representation. The Court DENIES United's Motion to Dismiss Plaintiff's fraudulent inducement and negligent misrepresentation claims. Punitive Damages As to punitive damages, United solely argues that because Plaintiff's other claims must be dismissed, she has no underlying cause of action on which to request a punitive award. However, as explained above, Plaintiff has stated viable claims including violations of Section 1981, fraudulent inducement, and negligent misrepresentation. As United's arguments against punitive damages hinge on the viability of those underlying claims, the Court DENIES United's Motion to Dismiss Plaintiff's claims for punitive damages. The Court GRANTS IN PART and DENIES IN PART United's Motion to Dismiss, (doc. 34). The Court GRANTS United's Motion to Dismiss for lack of standing as to Plaintiff's claims that United failed to keep accurate records, allowed policies to lapse, and failed to pay death benefits. However, the Court DENIES United's Motion to Dismiss for lack of standing as to all other claims. The Court also GRANTS United's Motion to Dismiss for untimeliness as to Plaintiff's claims that Mr. Barrett paid premiums exceeding the face value of his policy. However, the Court DENIES WITHOUT PREJUDICE United's Motion to Dismiss for untimeliness as to all other claims. Further, the Court DENIES United's Motion to Dismiss for failure to state a claim as to Plaintiff's claims for money had and received, negligent misrepresentation, fraudulent inducement, and punitive damages. The Court GRANTS AS UNOPPOSED United's Motion to Dismiss for failure to state a claim as to Plaintiff's claims for breach of contract, declaratory relief, and injunctive relief. A full-text copy of the District Court's September 23, 2019 Order is available at https://tinyurl.com/y5rt96ur from Leagle.com. Minerva Barrett, Executrix of the Estate of Chester Barrett, Plaintiff, represented by Robert Bartley Turner , Savage & Turner, PC, 04 East Bay Street P.O. Box 10600 Savannah, GA 31412. & William Jarrell Degenhart - jdegenhart@forthepeople.com - Morgan & Morgan. United Insurance Company of America, Inc., Defendant, represented by Elizabeth J. Campbell - ecampbell@lockelord.com - Locke Lord, LLP, Roger B. Cowie - rcowie@lockelord.com - Locke Lord LLP, pro hac vice & Taylor F. Brinkman - tbrinkman@lockelord.com - Locke Lord LLP, pro hac vice. UNITED STATES: Court Dismisses Suit Over Bump-Fire Stock Device --------------------------------------------------------------- The United States Court of Federal Claims issued an Opinion and Order granting Defendant's Motion to Dismiss in the case captioned ROY LYNN McCUTCHEN, et al., Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. No. 18-1965C. (Fed. Cl.). Plaintiffs brought this putative class action on behalf of themselves and all United States persons who have purchased a bump-fire stock or bump-fire type device, as listed in Exhibit 1 to the complaint, for personal or commercial use. They allege that the ATF rule has effected a taking of their property for which just compensation is required under the Fifth Amendment. On the evening of October 1, 2017, a lone gunman stationed himself in a high-rise, Las Vegas hotel room and fired 1100 rounds of ammunition downward onto a crowd attending a country music concert. Fifty-eight people were killed. Over eight hundred more were wounded by gunshots or as a result of the ensuing panic. When the authorities entered the shooter's hotel room, they found twelve semi-automatic weapons equipped with bump stocks devices that allow a semi-automatic weapon to fire continuous rounds at a rate similar to that of a machinegun. As of the date of this opinion, the mass shooting in Las Vegas remains the deadliest in American history. In its wake, the Department of Justice's Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) re-examined the status of bump-stock devices under federal firearms laws. Ultimately, after a period of notice and comment, it issued a final rule that re-classified bump stocks as machineguns under the National Firearms Act of 1934 and the Gun Control Act of 1968, thereby outlawing their possession and sale effective March 26, 2019. The regulation specified that, to avoid prosecution, owners of bump stocks must either destroy their devices or abandon them at an ATF office by that date. Statutory Framework To protect the public safety, Congress has enacted a series of statutes that regulate the manufacture, transfer, and possession of firearms generally and machineguns in particular. These statutes include the National Firearms Act of 1934 (NFA), the Gun Control Act of 1968 (GCA) and the Firearms Owners' Protection Act (FOPA). The NFA was enacted a year after Prohibition ended. Its purpose was, among other things, to regulate lethal weapons that could be used readily and efficiently by criminals and gangsters. The NFA imposed a tax on the manufacture and transfer of certain types of firearms. It further required that the Secretary of the Treasury maintain a registry of such firearms. The government filed a motion to dismiss for failure to state a claim. It contends that ATF's rule did not effect a compensable taking because it was issued pursuant to the government's police power and not its authority to take private property for a public use. In the alternative, the government argues, even if the rule effected a taking, it was a regulatory and not a physical one, and not compensable under the multi-factor analysis prescribed for regulatory takings in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978) and its progeny. In their response, Plaintiffs allege that the final rule effected either a per se physical or per se regulatory taking of their property, so that the government has a categorical obligation to compensate them for the value of their property. Standard for Motions to Dismiss under RCFC 12(b)(6) A complaint should be dismissed under RCFC 12(b)(6) when the facts asserted by the claimant do not entitle him to a legal remedy. When considering a motion to dismiss for failure to state a claim upon which relief may be granted, the Court must accept as true all the factual allegations in the complaint, and the Court must indulge all reasonable inferences in favor of the non-movant. The Court, however, is not required to accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the court accept legal conclusions cast in the form of factual allegations. Overview of Takings Principles The Fifth Amendment's Takings Clause provides that private property shall not be taken for public use without just compensation. The purpose of the Takings Clause is to prevent Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. Takings claims typically come in two forms: per se or regulatory. A per se or categorical taking occurs where there is a physical invasion or appropriation of property, whether real or personal. Here, Plaintiffs contend that the ATF rule effected a physical taking or, alternatively, what they call a per se regulatory taking, either of which gives rise to a categorical duty to pay just compensation. For the reasons set forth below, Plaintiffs' arguments lack merit. The ATF Rule Prohibiting Bump-Stock Devices Was an Exercise of Police Power and Did Not Effect a Taking for Public Use As is evident from its plain language, the Takings Clause does not require compensation unless private property whether personal or real has been taken, whether physically or through regulation, for public use. Of course, it is insufficient to avoid the burdens imposed by the Takings Clause simply to invoke the police powers' of the state. Nonetheless, there are certain exercises of the police power that have repeatedly been treated as legitimate even in the absence of compensation to the owners of the property. Among these are government actions taken to enforce prohibitions on the use or possession of dangerous contraband, or to require the forfeiture of property used in connection with criminal activity. In this case, Plaintiffs' bump-stock devices were not taken for a public use, within the meaning of the Takings Clause. Instead, because the devices have been designated as machineguns under ATF's regulatory authority, they are subject to 18 U.S.C. Section 922(o), which makes their possession a criminal offense. ATF, in the exercise of its police power, directed that owners of the devices must either destroy or abandon them at an ATF office, to avoid prosecution. Because the prohibition on possession involved an exercise of the government's police power, there was no taking within the meaning of the Fifth Amendment. The Court finds no merit in Plaintiffs' contention that the police power doctrine does not apply where, as here, the property owners came into possession of their bump-stock devices lawfully and continued to lawfully possess them until the effective date of the ATF rule. Plaintiffs have failed to cite a single case in which a court has found this distinction significant. They also fail to point to a case that has found the police powers doctrine inapplicable in circumstances where an individual is required to destroy or abandon property that was designated as contraband after the owner first came into possession of it. In short, under ATF's final rule, Plaintiffs' bump-stock devices were not taken for a public use, but were instead prohibited through the government's exercise of its police power. For this reason alone, Plaintiffs have failed to state a takings claim. The Regulation Did Not Effect a Categorical Taking Even if the police power doctrine were inapplicable, the Court would nonetheless dismiss the complaint because there is no merit to Plaintiffs' argument that the rule effected a categorical taking of their bump-stock devices. No Physical Taking First, the final rule did not result in the physical appropriation of Plaintiffs' bump-stock devices. Instead, it imposed a criminal prohibition on their possession of bump-stock devices, enforced by requiring their owners to either destroy them or abandon them at an ATF office for destruction. In Plaintiffs' case, in fact, the bump-stock devices were never turned over to the government. Instead, Plaintiffs destroyed them on their own. Plaintiffs' reliance on Horne v. Department of Agriculture,135 S. Ct. at 2424, in support of their per se physical takings argument is misplaced. The physical taking in that case arose out of a U.S. Department of Agriculture marketing order which required raisin growers to set aside a portion of their crop in certain years for the account of the government, free of charge. In accordance with the order, raisin growers were required to ship all of their raisins to a raisin handler who would separate out the portion due the government and pay the growers only for the remainder. A Raisin Administrative Committee would take title to the raisins allotted to the government known as reserve raisins and then dispose of them in various authorized ways, including selling them in non-competitive markets or donating them to charity. Proceeds from sales were used primarily to subsidize handlers who sold raisins for export. Here, by contrast, the ATF Rule did not effect a physical taking of Plaintiffs' property. Plaintiffs were not required to surrender possession of their devices to the government. There was no transfer of title to the government. And if Plaintiffs had chosen to abandon their bump-stock devices at the local ATF office, the agency would not have put the devices to its own use, it would have destroyed them. The USDA regime of direct physical appropriation of private property for the government's own use is distinguishable from the criminal prohibition on possession of personal property deemed dangerous, enforced by a requirement that the property be destroyed or abandoned. Indeed, in Horne itself, the Court acknowledged that, had the government simply prohibited the sale of the raisins by the growers, it would not have effected a per se taking. That distinction, the Court observed, flows naturally from the settled difference in our takings jurisprudence between appropriation and regulation. In short, there is no merit to Plaintiffs' argument that the ATF rule effected a per se physical taking of their bump-stock devices. The Court therefore turns to Plaintiffs' alternative argument that the rule effected a per se regulatory taking. The Rule Did Not Effect a Per Se Regulatory Taking Plaintiffs contend that even if the rule did not effect a physical taking, it would, nonetheless, be a per se regulatory taking. As explained above, the Supreme Court has held that regulatory actions may result in categorical or per se takings where they deny all economically beneficial or productive use of land. Lucas, 505 U.S. at 1015. Plaintiffs contend that the Supreme Court's reference in Lucas to the implied limitation on the expectations of owners of personal property is only applicable in the commercial context, and not to the mere ownership or possession of personal property. Thus, Plaintiffs argue that, in Lucas, the Court observed that in the case of personal property, by reason of the State's traditionally high degree of control over commercial dealings, an owner ought to be aware of the possibility that new regulation might even render his property economically worthless at least if the property's only economically productive use is sale or manufacture for sale. Of course, the only economically productive use of bump-stock devices is in their sale, manufacture for sale, or related commercial use. Plaintiff Paducah Shooter's Supply, Inc., for example, sells firearms and their accessories and operates a shooting range. It also previously provided bump-stock devices for patrons to use when it held so-called machine gun shoots. Likewise, Plaintiff Roy Lynn McCutchen alleges that he has purchased and owns multiple bump-fire type devices for both his personal use and for economic gain. For these reasons, it appears to the Court that even assuming there are circumstances in which the Lucas categorical taking standard could be applied to personal property it should not be applied here. The Court therefore rejects Plaintiffs' argument that the ATF rule effected a categorical or per se regulatory taking of their property. Regulatory Taking Under Penn Central Plaintiffs' complaint appears to be based on the theory that the ATF rule effected a regulatory taking under the Penn Central analysis. That analysis, as noted above, requires the Court to balance several factors when deciding whether compensation is owed for a regulatory taking. These include the economic impact of the regulation on the claimant, the character of the governmental action and the extent to which the regulation has interfered with distinct investment-backed expectations. In opposing the government's motion to dismiss, however, Plaintiffs do not argue that the ATF rule effects a regulatory taking under Penn Central. Instead, they have chosen to rely upon the categorical takings theories described above. Any argument based on Penn Central has therefore been waived. In any event, even if the argument were not waived, Plaintiffs have failed to state a regulatory takings claim under Penn Central. Plaintiffs have alleged that the ATF rule has destroyed all economic value of their bump-stock devices. But their allegations are insufficient to establish a regulatory taking upon consideration of the character of the government's actions and the extent to which the rule interferes with reasonable investment-backed expectations. In particular, Plaintiffs could not have reasonably expected that existing rules regarding bump-stock devices would not be made more restrictive. Such devices, after all, are designed to enable semi-automatic weapons to simulate the firepower of machineguns, whose possession has been prohibited for decades. Plaintiffs, in short, have waived any argument based on the Penn Central analysis by failing to make it in opposing the government's motion to dismiss. And even if the argument were not waived, the Court concludes that they have failed to allege a regulatory taking claim under Penn Central. The government's motion to dismiss for failure to state a claim is granted. The complaint will be dismissed with prejudice. A full-text copy of the Court of Federal Claims' September 23, 2019 Opinion and Order is available at https://tinyurl.com/y4qmrznd from Leagle.com. ROY LYNN MCCUTCHEN & PADUCAH SHOOTER'S SUPPLY, INC, individually and on behalf of all others similarly situated, Plaintiffs, represented by Ethan Albert Flint , Flint Law Firm, LLC, 222 E. Park St., Suite 500, Edwardsville, IL 62025 USA, Defendant, represented by Nathanael Brown Yale , U.S. Department of Justice Civil Division. UNIVERSITY OF LA VERNE: Stupar Seeks Proper Wages, Penalties ------------------------------------------------------------ JOHN STUPAR, individually and on behalf of all others similarly situated, Plaintiff, v. UNIVERSITY OF LA VERNE, a California Non-Profit Corporation, Defendant, Case No. 19STCV3336 (Cal. Super. Ct., Los Angeles Cty., Sept. 19, 2019) is a class action under California Code of Civil Procedure Section 382 seeking damages for unpaid wages and unpaid premium pay, statutory penalties, interest, injunctive relief, restitution, and reasonable attorneys' fees and costs under California Labor Code, IWC Wage Order, California Civil Procedure Code, and restitution under California's Unfair Competition Law. According to the complaint, the Defendant paid Class Members on a piece-rate basis, i.e., a Hat rate for each course taught. The more courses Class Members taught, the more they were paid. Plaintiff and Class Members were also non-exempt employees because they did not earn a monthly salary equivalent of two times the state minimum wage for full-time employment, the minimum amount an employee must earn to be considered exempt under the Industrial Welfare Commission Wage Order No. 4. Because Class Members are piece rate workers, pursuant to Labor Code and Wage Order, Defendant was required to pay them separately from the piece and hourly and at their average hourly rate for their time spent on rest breaks. The Defendant, however, did not pay them separately and hourly for their rest break time and as a result violated California's rest break laws, thus entitling Class Members to one hour of premium pay for each unpaid rest break. Additionally, Defendant was required to pay Class Members separately and hourly at least at the minimum wage for their non-productive time (i.e. time spent working outside the hours of classroom instruction). The Defendant, however, did not pay them for their non-productive time, in violation of Labor Code and Wage Order. As a result, Defendant is also liable to Class Members for unpaid wages, says the complaint. Plaintiff Stupar is a resident of Westminster, California who was employed by LVU as an adjunct instructor from approximately 1985 until 2018. Defendant is a private non-profit university, incorporated in California and located in La Verne, California.[BN] The Plaintiff is represented by: Julian Hammond, Esq. Polina Brandler, Esq. Ari Cherniak, Esq. HAMMONDLAW, PC 1829 Reisterstown Rd., Suite 410 Baltimore, MD 21208 Phone: (310) 601-6766 Fax: (310) 295-2385 Email: jhammond@hammondlawpc.com pbrandler@hammondlawpc.com acherniak@hammondlawpc.com VANDAD SHEMIRANI: Huite Files Suit for Wrongful Eviction -------------------------------------------------------- JUAN CARLOS HERNANDEZ HUITE; individually and on behalf of all other persons similarly situated, Plaintiff v. VANDAD SHEMIRANI; MANUEL DEJESUS; SILVIA RAMIREZ; BERTA RAMIREZ; WENDY SANDOVAL; individuals; DOES 1-50 inclusive, Defendants, Case No. 19STCV33378 (Cal. Super. Ct., Los Angeles Cty., Sept. 19, 2019) is a case arising from a clash between laws enacted to protect tenants in Los Angeles County from abuses and deplorable conditions that are prevalent in illegal units and landlord's illegal attempts to wrongfully evict tenants without any regards for tenants' rights under the law. Plaintiff is a monolingual Spanish-speaker. Plaintiff alleges that Defendants secure a competitive advantage by targeting unsophisticated monolingual immigrant tenants with high pressure intimidation tactics to force Plaintiff and his family out of their homes without providing any relocation assistance. Such actions created an atmosphere of uncertainty and fear surrounding Plaintiff's tenancy at the property. Defendants Manuel DeJesus, Silvia D. Ramirez and Berta Ramirez, Wendy Sandoval illegally collected rent since 2014 from Plaintiff on behalf of Vandad Shemirani. The Defendant Vandad Shemirani attempted to circumvent Plaintiffs' right to receive relocation assistance and to defend against an unlawful detainer action by engaging in conspiracy against Plaintiff, says the Plaintiff. Specifically, Defendants, collectively and individually, took steps to prevent Plaintiff from discovering that an unlawful detainer action had been filed against him in order to achieve Defendants' goal of removing Plaintiff and his family from the premises. Plaintiff and his family where then forcefully removed from the premises because they were not given a chance to defend against Defendants' illegal and malicious conduct, says the complaint. Plaintiff Juan Carlos Hernandez is an individual living with his wife and two children in the City of Los Angeles.[BN] The Plaintiff is represented by: Micheli Quadros, Esq. Sarah Ann Cuellar, Esq. Quadros & Cuellar, LLP 453 S. Spring Street, Suite 616 Los Angeles, CA 90013 Phone: (213) 603 0000 VISALUS INC: Bid to Decertify Class in Wakefield TCPA Suit Denied ----------------------------------------------------------------- Judge Michael H. Simon of the U.S. District Court for the District of Oregon denied Visalus' motion to decertify the class in the case, LORI WAKEFIELD, individually and on behalf of a class of others similarly situated, Plaintiff, v. VISALUS, INC., Defendant, Case No. 3:15-cv-1857-SI (D. Or.). ViSalus is a multi-level marketing company that sells weight-loss products and other nutritional dietary supplements, including energy drinks. Individual members sign up with ViSalus to be "promoters," and promoters purchase products from ViSalus and re-sell them to customers of the promoter. Plaintiff Wakefield signed up to be a promoter with ViSalus in late 2012 but did not sell any ViSalus products and decided to cancel her ViSalus membership after two months. Although she cancelled her account in March 2013, she received telephone solicitation calls from ViSalus in April 2015. The Plaintiff brought claims against the Defendant for violating the TCPA, alleging that she and a class of similarly situated individuals had received telephone calls promoting ViSalus products or services using an artificial or prerecorded voice without their consent. In an opinion issued on June 23, 2017, U.S. District Judge Anna Brown, who presided over the action until she took senior status in 2018, granted certification of a class consisting of all individuals in the United States who received a telephone call made by or on behalf of ViSalus: (1) promoting ViSalus' products or services; (2) where such call featured an artificial or prerecorded voice; and (3) where neither ViSalus nor its agents had any current record of prior express written consent to place such call at the time such call was made. The case proceeded to a three-day jury trial. On April 12, 2019, the jury returned a special verdict, finding that a total of 1,850,436 violative calls were made to either cell phones or landlines, but could not be more precise as to how many calls were made to each. In 2012, the Federal Communications Commission ("FCC") issued a rule requiring that all requests for a consumer's written consent to receive telemarketing robocalls must include the telephone number that the consumer authorizes may be called with telemarketing messages, and clear and conspicuous disclosures informing the consumer that: (1) the consumer authorizes the seller to deliver telemarketing calls to that number using an automatic telephone dialing system or an artificial or prerecorded voice; and (2) the consumer is not required, directly or indirectly, to provide written consent as a condition of purchasing any property, goods, or services. On Sept. 14, 2017, nearly two years after the Plaintiff filed her complaint and the FCC granted its first retroactive waiver, ViSalus petitioned the FCC for a retroactive waiver of the express written consent requirements created by the 2012 FCC rule. On June 13, 2019, nearly two months after the jury returned its verdict, the FCC granted ViSalus' petition for retroactive waiver but only as it applied to calls for which the petitioner had obtained some form of written consent. ViSalus has moved to decertify the class. It argues that the FCC's retroactive waiver given to ViSalus requires the Court to decertify the class because in light of the FCC waiver, the named Plaintiff lacks standing and consent becomes an individualized issue that predominates over class-wide issues. ViSalus also makes several arguments challenging the propriety of class certification not based on the FCC order, which can largely be grouped into six categories. First, ViSalus argues there are insufficient questions of law or fact common to the class and those common questions do not predominate over questions affecting only individual members. Second, ViSalus argues that the class is unmanageable because it will be too difficult to determine which class members heard which messages, and that a class action is not superior because it is procedurally unfair to ViSalus. Third, it argues that the class lacks numerosity because Plaintiff did not introduce evidence showing how many individuals both received and heard a prerecorded telemarketing message. Fourth, ViSalus argues that Ms. Wakefield's claims are not typical of the class. Fifth, it argues that Ms. Wakefield is not an adequate class representative. Finally and sixth, ViSalus argues that the class, as certified, constituted an impermissible "fail-safe" class. After reviewing the Defendant's arguments and the evidence presented at trial, Judge Simon finds that the class certification was, and remains, proper and meets the requirements of Federal Rule of Civil Procedure 23. He denied the Defendant's Motion to Decertify the Class and its Motion to Strike Plaintiff's Sur-Reply. A full-text copy of the Court's Aug. 21, 2019 Opinion and Order is available at https://is.gd/DKZqhF from Leagle.com. Lori Wakefield, individually and on behalf of all others similarly situated, Plaintiff, represented by Benjamin H. Richman -- brichman@edelson.com -- Edelson PC, pro hac vice, Eve-Lynn J. Rapp -- erapp@edelson.com -- Edelson PC, pro hac vice, Gregory S. Dovel -- greg@dovel.com -- Dovel & Luner LLP, pro hac vice, J. Aaron Lawson -- alawson@edelson.com -- Edelson PC, pro hac vice, Jonas B. Jacobson, Dovel & Luner LLP, pro hac vice, Julien A. Adams, Dovel & Luner LLP, pro hac vice, Lily E. Hough, Edelson PC, pro hac vice, Rafey S. Balabanian, Edelson PC, pro hac vice, Scott F. Kocher, Forum Law Group LLC, Simon C. Franzini -- simon@dovel.com -- Dovel & Luner LLP, pro hac vice, Stefan L. Coleman, Law Offices of Stefan Coleman, P.A., pro hac vice & Stephen Joseph Voorhees, Forum Law Group. ViSalus, Inc., Defendant, represented by John Maston O'Neal , Quarles & Brady LLP, pro hac vice, Joshua M. Sasaki -- josh.sasaki@millernash.com -- Miller Nash Graham & Dunn LLP, Nicholas H. Pyle -- nicholas.pyle@millernash.com -- Miller Nash Graham & Dunn LLP & Zachary S. Foster -- zachary.foster@quarles.com -- Quarles & Brady LLP, pro hac vice. WEINERT ENTERPRISES: Filing of Second Amended Anderson Suit Allowed ------------------------------------------------------------------- In the case, RICHARD J. ANDERSON, on behalf of himself and all others similarly situated, Plaintiff, v. WEINERT ENTERPRISES, INC., Defendant, Case No. 18-C-901 (E.D. mm Wis.), Judge William C. Griesbach of the U.S. District Court for the Eastern District of Wisconsin (i) denied Anderson's motion for class certification, (ii) granted his motion for leave to amend the complaint, and (iii) denied as moot Weinert's motion to strike the untimely opt-in consents of two individuals and its motion to decertify the Fair Labor Standards Act (FLSA) collective action. Anderson brought the wage-and-hour collective and putative class action on behalf of himself and similarly situated current and former hourly employees of Defendant Weinert. Anderson alleges in his first amended complaint that Weinert violated the Fair Labor Standards Act ("FLSA"), and Wisconsin's wage law. Specifically, Anderson alleges Weinert violated the FLSA by paying straight time rates for travel time between the shop and the job site and for failing to count such travel time when calculating an employee's eligibility for weekly overtime pay, as well as failing to account for cash bonuses and cash fringe benefits when calculating employees' base rates of pay to determine overtime pay. Anderson alleges Weinert violated Wisconsin law by paying travel time at straight time rates even when the travel occurred after 40 hours; failing to count paid travel hours when computing overtime pay for non-traveling work; failing to count paid daily overtime hours toward the weekly overtime threshold of 40 hours; improperly computing overtime based on the type of work performed during overtime hours rather than based on the regular rate; and failing to account for bonuses and cash fringe benefits when calculating an employee's regular rate. The Court previously approved the parties' stipulation for conditional certification of an FLSA collective action. On April 30, 2019, the deadline for Anderson to file a motion for class certification and for Weinert to file a motion to decertify the FLSA collective action, Anderson filed a motion for Rule 23 class certification of the state law claims and Weinert filed a motion to strike the untimely opt-in consents of two individuals as well as a motion to decertify the FLSA collective action. Rather than file a response in opposition to Weinert's motions, Anderson submitted a motion for leave to file a second amended complaint ("SAC") that seeks, among other things, to abandon the collective action and add the three individuals who submitted consents as additional named Plaintiffs. Anderson seeks to certify a class consisting of all hourly employees who worked on the jobsite for the Defendant on or after June 14, 2016. However, Anderson does not seek to certify the class as to all of his state law claims. Instead, class certification would be limited to the following two claims: (1) that Weinert failed to count paid travel hours when computing overtime pay for non-traveling work; and (2) that Weinert improperly computed overtime based on the type of work performed during overtime hours rather than based on the regular, or a blended, rate. The current putative class stands at 37 employees. One class member lives in North Carolina, another in Georgetown, Illinois, and the remaining class members live in an approximately 50 mile geographic radius in counties that are within the jurisdiction of the Eastern District of Wisconsin. In short, the Court will only consider those 37 employees who worked during the time period between June 14, 2016 and the end of 2018 in analyzing the numerosity requirement. Judge Griesbach finds that Anderson has failed to present evidence that the claim for each of the class members is so minimal that no attorney would be interested in representing them. The question under Rule 23(a)(1) is not whether it makes sense for injured parties to combine their claims rather than litigate them individually; the question is whether the Plaintiffs can combine their claims through joinder rather than through class certification. Anderson has failed to meet his burden of establishing that combining the claims through joinder would be impracticable. Consequently, he has failed to satisfy Rule 23(a)'s numerosity requirement, precluding certification of the class. Accordingly, Anderson's motion for class certification will be denied. Anderson filed a motion for leave to file a SAC in lieu of filing a response brief to Weinert's motions to strike untimely opt-ins and to decertify the FLSA collective action. The SAC seeks to, among other things, add Joseph Young, Evin Chaulkin, and Michael Herter as named plaintiffs. The three new potential Plaintiffs are the only individuals who consented to opt in to the FLSA collective action. The SAC also seeks to convert the collective FLSA action into an individual FLSA action. The Judge finds no reason under Rule 15 to deny Anderson leave to amend. Weinert has not actually suffered prejudice since Anderson's motion for class certification has been denied and the SAC removes the FLSA collective action claims. Also, the allegations of the SAC satisfy Rule 20's requirements. But Rule 20, by its plain language, allows for joinder based on allegations arising out of the same transaction, occurrence, or series of transactions, and does not require definitive evidence at the pleadings stage. Anderson's allegations are plausible based on the payroll records presented. The fact that not all claims apply to all the Plaintiffs does not render joinder impermissible when the claims arise out of the same occurrence. While individual inquiry may be required to ascertain damages for a particular plaintiff, whether Weinert violated the FLSA by failing to count the Plaintiffs' travel time when determining their eligibility for overtime pay presents a common question of law. Therefore, the requirements of Rule 20 have been satisfied, and joinder is appropriate. Finally, Weinert requests (1) an award of its costs and attorney's fees incurred in challenging the FLSA certification and the untimeliness of the two opt-in Plaintiffs and (2) that the Court holds the date of entry into the lawsuit of the newly added Plaintiffs as the date of the Court's order rather than the date they consented to join the lawsuit. As an initial matter, an award of costs and attorney's fees is not warranted because Anderson's motion for leave to amend his complaint in response to Weinert's motions to decertify was reasonable. As to the entry date for the newly added Plaintiffs, Weinert had notice of the additional Plaintiffs' claims because the action was originally filed as a collective FLSA action and the Plaintiffs' claims arise out of the same actions that gave rise to Anderson's claims. Consequently, their claims relate back to the filing of the original complaint. For the foregoing reasons, Judge Griesbach denied Anderson's motion for class certification as to the state law claims. He granted Anderson's motion for leave to file a second amended complaint. Weinert will file its answer or otherwise respond within 21 days of the date of the Order. The Clerk is directed to detach and file the second amended complaint that is attached to Anderson's motion and to add Joseph Young, Evin Chaulkin, and Michael Herter as Plaintiffs. The Judge denied as moot Weinert's motion to strike untimely opt-ins and motion to decertify the FLSA collective action. The Clerk will set the matter for a telephone conference to address further proceedings once Weinert has filed its answer to the second amended complaint. A full-text copy of the Court's Aug. 23, 2019 Decision and Order is available at https://is.gd/9Vuhqc from Leagle.com. Richard J Anderson, Joseph Young, Evin Chaulkin & Michael Herter, Plaintiffs, represented by Yingtao Ho -- yh@previant.com -- The Previant Law Firm SC. Weinert Enterprises Inc, Defendant, represented by Aaron J. Graf -- agraf@mawickelaw.com -- Mawicke & Goisman SC, J. Nels Bjorkquist -- nbjorkquist@mawickelaw.com -- Mawicke & Goisman SC & Jennifer S. Walther -- jwalther@dmgr.com -- Mawicke & Goisman SC. WELTMAN WEINBERG: Court OKs Class Certification in Bitzko --------------------------------------------------------- The United States District Court for the Northern District of New York issued a Memorandum Decision and Order granting Plaintiffs' Motion for Class Certification in the case captioned CHRISTY BITZKO, individually and on behalf of all others similarly situated, Plaintiff, v. WELTMAN, WEINBERG & REIS CO., LPA, Defendant. No. 1:17-CV-00458 (BKS/DJS). No. 1:17-CV-00458 (BKS/DJS). (N.D.N.Y.). Plaintiff Christy Bitzko brings this action against Defendant Weltman, Weinberg & Reis Co., LPA (WWR), alleging that it engaged in unlawful debt collection practices in violation of the Fair Debt Collection Practices Act (FDCPA), by sending her a debt collection letter: (i) on law firm letterhead even though WWR attorneys were not meaningfully involved in its creation, in violation of 15 U.S.C. Section 1692e (ii) that failed to provide a complete notice of the amount of debt she owed, in violation of 15 U.S.C. Section 1692g and (iii) that failed to inform her that her debt may increase, in violation of 15 U.S.C. Section 1692e. Standard For a matter to proceed as a class action, a plaintiff must satisfy four requirements: (1) numerosity (the class is so numerous that joinder of all members is impracticable (2) commonality (there are questions of law or fact common to the class) (3) typicality (the claims or defenses of the representative parties are typical of the claims or defenses of the class) and (4) adequacy of representation (the representative parties will fairly and adequately protect the interests of the class). Assuming the requirements of Rule 23(a) are met, a class action may only be maintained if the plaintiff also qualifies the proposed class under one of the categories in Rule 23(b). Here, Plaintiff seek to certify the class for purposes of compensatory relief under Rule 23(b)(3). The court may certify a Rule 23(b)(3) class if it finds that questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Proposed Class Plaintiff seeks class certification of her second and third claims but does not seek certification for her first claim. Her second claim, pertaining to the required amount of debt under Section 1692g of the FDCPA, has been dismissed and so her motion for certification on that claim is moot. Plaintiff seeks to certify the following class for her third claim: (1) All consumers to whom Weltman, Weinberg & Reis Co., LPA mailed letters seeking to collect debts which were subject to increase based on interest and/or late fees, but which failed to disclose that the amount of the debt was subject to increase and (2) which were sent on or after a date one year prior to the filing of this action and on or before a date 21 days after the filing of this action. Ascertainability The ascertainability doctrine that governs in this Circuit requires only that a class be defined using objective criteria that establish a membership with definite boundaries. This modest threshold requirement will only preclude certification if a proposed class definition is indeterminate in some fundamental way. Defendant argues the proposed class is not ascertainable because nothing in its records indicates whether the letters it mailed involved consumer debt (which is within the scope of the FDCPA) or commercial debt which is not. According to Defendant, the Court will have to engage in extensive and individualized fact finding to determine who, among the over 58,000 individuals who received debt-collection letters during the proposed class period, had consumer versus non-consumer debt. However, ascertainability does not directly concern itself with the plaintiffs' ability to offer proof of membership under a given class definition, an issue that is already accounted for in Rule 23. Here, since the class is specified with objective criteria consumers to whom WWR, within a certain specified time, sent debt collection letters for debts8 which were subject to increase based on interest and/or late fees, but failed to disclose that the amount of the debt was subject to increase and that definition is sufficiently definite, such that a determination is objectively possible, the ascertainability requirement is met. The Court thus finds that the modest threshold requirement of ascertainability has been fulfilled. And whether Defendant's argument regarding the difficulty of proving class membership is considered as part of the ascertainability analysis or as part of numerosity, commonality, typicality, or superiority, under the circumstances of this case the Court finds that individualized inquiries into each class member's debt does not preclude class certification. If Defendant discovers, after the class is certified, that the class identification is unworkable or unreliable, it may move to decertify the class. Numerosity Rule 23(a)(1) requires that the proposed class be so numerous that joinder of all members is impracticable In general, numerosity is presumed where a putative class has 40 or more members. Plaintiff asserts that numerosity is established because as alleged in the Complaint and as disclosed during discovery for the mediation, Defendant does not dispute that the number of putative class members is well over forty, and more likely is in the thousands of potential members. Defendant contends, however, that of the over 58,000 individuals sent letters during the subject time period, there is no evidence that they are consumers falling within the protection of the FDCPA. Defendant further notes that Plaintiff failed to conduct any discovery on class size. If over 58,000 individuals were sent letters during the subject time period, the requirement for numerosity would be fulfilled even if less than 0.1% of individuals contacted were consumers. And since the Plaintiff's current creditor, National Collegiate Student Loan Trust 2007-2, is one of WWR's creditor clients and WWR created policies to ensure the firm's compliance with the FDCPA, it is reasonable to believe that there are sufficient individuals similarly situated to Plaintiff to satisfy the numerosity requirement. Accordingly, the Court concludes that the Plaintiff has satisfied this requirement. Commonality A plaintiff seeking class certification must show questions of law or fact common to the class. A question of law or fact is common to the class if the question is capable of classwide resolution which means that its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Plaintiff argues that commonality is satisfied here because the claims of putative class members turn on the common contention that Defendant's collection letter violates the FDCPA. In other words, the Plaintiff has established commonality because the resolution of this action will rest on whether or not the Defendant's alleged conduct in sending the form letters violated numerous provisions of the FDCPA. Defendant, on the other hand, contends that because individual inquiries are necessary to figure out whether the debt at issue is consumer debt, the commonality requirement is not fulfilled. As described above, Defendant's arguments are unpersuasive. Once the class of consumers is identified, it is clear that the legality of Defendants' use of the challenged standardized forms to communicate with personal, family, or household consumers can be resolved in one stroke. Accordingly, Plaintiff has established commonality. Typicality Typicality requires that the claims of the class representatives be typical of those of the class, and is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability. But typicality does not require that the factual background of each named plaintiff's claim be identical to that of all class members, rather, it requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class. Plaintiff asserts that there is typicality because the class members have all been subject to the same treatment as Plaintiff, to wit, Defendant sent them all the same deceptive letter. Therefore, Plaintiff's claim is typical of the class because it arises from the same course of events and hinges on the same legal arguments. Defendant's argument concerning non-consumer debt overlooks the fact that only consumers will be class members and thus Plaintiff has satisfied the typicality requirement. Adequacy of Representation Generally, adequacy of representation entails inquiry as to whether: 1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation. Regarding named plaintiffs' adequacy, the requirement is twofold: the named plaintiffs must be prepared to prosecute fully the action and have no known conflicts with any class member. Here, Plaintiff asserts she is an adequate class representative because there is no evidence of any conflict and she is ready, willing, and able to discharge her responsibilities as a class representative. Magistrate Judge Daniel J. Stewart appointed Plaintiff's counsel, Barshay Sanders, PLLC, as Interim Class Counsel on May 18, 2018. Defendant does not offer any objection to the adequacy of Plaintiff or her attorneys. Accordingly, the adequacy requirement has been fulfilled. Predominance For certification under Rule 23(b)(3), Plaintiffs must establish that questions of law or fact common to class members predominate over any questions affecting only individual members. The predominance requirement tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. It is satisfied when (1) resolution of any material legal or factual questions can be achieved through generalized proof and (2) these common issues are more substantial than the issues subject only to individualized proof. Plaintiff argues that common issues predominate because the claims of putative class members turn on the common contention that Defendant's collection letter violates the FDCPA and similar arguments will be made to prove Defendant's liability. Plaintiff further argues that because Defendant's liability will be determined under the least sophisticated consumer standard, which is objective, individual class members will not need to prove their subjective understanding of the letter. The Court has now determined liability, and Defendant has not identified any individualized issues beyond its concern about identifying class members. Therefore, the Court finds that the predominance requirement has been met. Superiority In order to certify a class under Rule 23(b)(3), the Court must determine whether a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. In doing so, the Court considers factors including: (1) the class members' interests in individually controlling the prosecution or defense of separate actions (2) the extent and nature of any litigation concerning the controversy already begun by or against members of the class (3) the desirability or undesirability of concentrating the litigation in the particular forum and (4) the likely difficulties in managing a class action. Plaintiff contends that a class action is superior in this case because individual recovery is small and litigating independently could lead to repetitious litigation and inconsistent adjudications. The Court agrees. First, class litigation is a superior vehicle for the instant case given economies of scale. FDCPA cases are unlikely to be brought on an individual basis due to the statute's low cap on individual damages, especially when compared to potential litigation costs. Second, litigating as a class also promotes a unity of analysis and outcome, compared to potentially conflicting outcomes across a multitude of individual suits. Defendant's arguments to the contrary are unavailing. Defendant argues that because each putative class member will need to be deposed individually in order to avoid infringing on Defendant's due process rights, proceeding as a class action is not superior. As discussed with respect to ascertainability, individual depositions are likely unnecessary given Defendant's records can identify consumers. Accordingly, the Court concludes that Plaintiff has adequately shown superiority. Plaintiff's Motion for Class Certification is GRANTED; as to her claim that the failure to disclose that the consumer's balance was subject to future interest and/or late fees violated 15 U.S.C. Section 1692e for the following Rule 23(b)(3) class: All consumers to whom Weltman, Weinberg & Reis Co., LPA (WWR) mailed letters seeking to collect debts: (i) which were primarily for personal, family, or household purposes and (ii) which debts were subject to increase based on interest and/or late fees and (iii) to whom WWR sent letters failing to disclose that the amount of the debt was subject to increase (iv) during the period from on or after a date one year prior to the filing of this action and on or before a date 21 days after the filing of this action. A full-text copy of the District Court's September 23, 2019 Memorandum Decision and Order is available at https://tinyurl.com/yxnht73m from Leagle.com. Christy Bitzko, individually and on behalf of all others similarly situated, Plaintiff, represented by David Michael Barshay , Barshay Sanders, PLLC, 100 Garden City Plaza, Suite 500, Garden City, NY 11530, Stuart D. Werbin , Law Office of Stuart Werbin, 920 E. 17th St., Brooklyn, NY, 11230 & Craig B. Sanders , Barshay Sanders, PLLC. 100 Garden City Plaza, Suite 500, Garden City, NY 11530 Salvatore D. Ferlazzo, Mediator, pro se. Weltman, Weinberg & Reis Co., LPA, Defendant, represented by Glenn M. Fjermedal -gfjermedal@davidsonfink.com - Davidson Fink LLP. WILCO LIFE: LSCC Appeals C.D. California Ruling to Ninth Circuit ---------------------------------------------------------------- Plaintiff LSCC LLC filed an appeal from a Court ruling entered in its lawsuit styled LSCC LLC v. Wilco Life Insurance Company, Case No. 2:19-cv-01854-PSG-MRW, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as LSCC LLC v. Wilco Life Insurance Company, Case No. 19-56075, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the lawsuit alleges that Wilco's systematic reduction of the payment of death proceeds during the "extension period" through its unilateral imposition of the "retroactive premium charge" constitutes a breach of a court-approved settlement agreement requiring that life insurance coverage during the Extension Period be provided at no cost to the Plaintiff and other members of the Extension Class. By order and judgment dated July 3, 2007, entered in In re Conseco Life Insurance Company Cost of Insurance Litigation, Docket No. MDL 04-1610-AHM (Mcx) ("the MDL Action"), the Court approved a class action Stipulation of Settlement on behalf of a certified settlement class of policyholders, and expressly retained jurisdiction over any subsequent action to enforce its terms. The Final Judgment not only approved but incorporated the terms of the Settlement Agreement, under which Wilco (then known as Conseco) agreed to provide to certain members of the Settlement Class (those holding a policy in-force as of March 2, 2006, that was projected to terminate before the insured turned 100 years old) with one of two forms of settlement relief: either (a) an in-force death benefit extension of coverage for each policy for a specified period of time after the policy would otherwise terminate ("the Extension Benefit") or (b) a specified cash contribution. Members of the Settlement Class eligible for such relief, who did not affirmatively elect the Cash Contribution received the Extension Benefit by default. The Settlement Agreement makes it abundantly clear that the Extension Benefit provides additional life insurance coverage for a specified period of time ("the Extension Period") at no cost to the policyholder. However, LSCC argues, in breach of the Court-approved Settlement Agreement, Wilco has been systematically reducing the death benefits paid on claims made under the Extension Period by unilaterally applying a retroactive premium charge ("the Retroactive Premium Charge") relating to an unused and expired 61-day grace period inapplicable to deaths occurring more than 60 days after the policy's termination date. Accordingly, Wilco does not charge or otherwise collect a premium for a grace period once it expires with no claim for benefits thereunder. Yet contrary to the explicit "no cost" terms of the Court-approved Settlement Agreement, Wilco is deducting the Retroactive Premium Charge for the expired grace period from the proceeds paid pursuant to the Extension Benefit, LSCC contends. The briefing schedule in the Appellate Case is set as follows: -- Appellant LSCC LLC's opening brief is due on November 12, 2019; -- Appellee Wilco Life Insurance Company's answering brief is due on December 10, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiff-Appellant, LSCC LLC, an Arkansas limited liability corporation, individually and on behalf of itself and all others similarly situated, is represented by: Francis Joseph Balint, Jr., Esq. Andrew S. Friedman, Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT, PC 2325 E. Camelback Road, Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 E-mail: fbalint@bffb.com afriedman@bffb.com - and - Manfred P. Muecke, Esq. Patricia N. Syverson, Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT PC 600 West Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 756-6978 E-mail: mmuecke@bffb.com psyverson@bffb.com Defendant-Appellee WILCO LIFE INSURANCE COMPANY, FKA Conseco Life Insurance Company, is represented by: Kathryn Elizabeth Panish, Esq. KIRKLAND & ELLIS LLP 333 South Hope Street Los Angeles, CA 90071 Telephone: (213) 680-8400 E-mail: kathryn.panish@kirkland.com YAMAHA MOTOR: Krautkramer Sues Over Radiator Defect --------------------------------------------------- FRED KRAUTKRAMER, individually and on behalf of others similarly situated, Plaintiff, v. YAMAHA MOTOR CORPORATION, U.S.A., INC., Defendant, Case No. 0:19-cv-02559 (D. Minn., Sept. 19, 2019) is an action seeking to redress Yamaha's violations of the Minnesota Prevention of Consumer Fraud Act, and also seeks recovery for Defendant's breach of express warranty, breach of implied warranty, common law fraud, breach of the covenant of good faith and fair dealing and, alternatively, unjust enrichment. This class action lawsuit is brought by Plaintiff on behalf of himself and a class of current and former owners of model years 2016-18 Yamaha Pure Sport YXZ1000R, YXZ1000SE, YXZ1000SS and YXZ1000 SS SE Side-by-Side vehicles, equipped with radiators mounted on the front of the vehicles ("Class Vehicles"). The front-mounted radiators on the Class Vehicles are defectively designed and/or manufactured and frequently become clogged with mud while being operated as intended, resulting in inadequate cooling, overheated engines, and potentially catastrophic engine failure and even fire ("Radiator Defect"). This dangerous safety defect can cause harm to the operators of the Class Vehicles, as well as their passengers. This action arises from Yamaha's failure, despite its longstanding knowledge of this material manufacturing and/or design defect, to disclose to Plaintiff and other consumers that the Class Vehicles are predisposed to the Radiator Defect, causing the Vehicles' engines to overheat--resulting in both decreased performance and premature wear of the engines, engine bearings and other internal engine components as well as an increased cost of repair and remediation. Such premature failures can also result in catastrophic engine failure, engine stalling events, engine fires and other dangerous situations for occupants of the Class Vehicles and others in close proximity, notes the complaint. As a result of Yamaha's unfair, deceptive and/or fraudulent business practices, owners and/or lessees of Class Vehicles, including Plaintiff, have suffered an ascertainable loss of money and/or property. Had Plaintiff and other Class members known about the Radiator Defect at the time of purchase, they would not have purchased the Class Vehicles, or would have paid substantially less for the Class Vehicles, the complaint adds. Plaintiff Fred Krautkramer purchased a new 2016 YXZ1000R Yamaha Side-by-Side Pure Sport (VIN# 5Y4AN07Y2GA101134) from Ecofun Motorsports, an authorized Yamaha dealer and repair center located in Forest Lake, Minnesota, on March 23, 2019. Yamaha Motor Corporation U.S.A., Inc. is a distributor and manufacturer in the motorsports market.[BN] The Plaintiff is represented by: Daniel C. Hedlund, Esq. David A. Goodwin, Esq. Ling S. Wang, Esq. GUSTAFSON GLUEK PLLC Canadian Pacific Plaza 120 South 6th Street, Suite 2600 Minneapolis, MN 55402 Phone: (612) 333-8844 Fax: (612) 339-6622 Email: dhedlund@gustafsongluek.com dgoodwin@gustafsongluek.com lwang@gustafsongluek.com - and – Matthew D. Schelkopf, Esq. Joseph B. Kenney, Esq. SAUDER SCHELKOPF LLC 555 Lancaster Avenue Berwyn, PA 19312 Phone: (610) 200-0581 Facsimile: (610) 421-1326 Email: mds@sstriallawyers.com jbk@sstriallawyers.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***