/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/191014.mbx C L A S S A C T I O N R E P O R T E R Monday, October 14, 2019, Vol. 21, No. 205 Headlines 5TH AVENUE LANDSCAPING: Underpays Workers, Contreras Suit Alleges AARGON AGENCY: Genay Files Class Suit under FDCPA ADVANCED CALL CENTER: Weinberg Files FDCPA Class Action in New York ALAMEDA SUPERIOR COURT: Laine Suit Dismissed Without Leave to Amend ALLERGAN PLC: Raul Seeks to Enjoin Vote on AbbVie Merger Deal ALLIED UNIVERSAL: Court Certifies Settlement Class in Douglas Suit ALLSTATE CORPORATION: Gebka Seeks to Certify TCPA Classes ALPHA RECOVERY: Miles Sues Over Misleading Collection Letter AMYRIS INC: Continues to Defend Calif. Securities Class Suit APOGEE ENTERPRISES: EFCO Acquisition-Related Suit Ongoing ATLANTIC CREDIT: Lindala Moves for Certification of Classes BALTIMORE COUNTY, MD: Borkowski Suit Tossed; Parties May Amend Suit BATTLBOX LLC: Fischler Alleges Violation under Disabilities Act BIG ORANGE PRODUCTIONS: Trevethan Files Class Suit in California BILL HAMILTON: Court Denies Class Cert. Bid in Lizarraga Suit BLUE CROSS: Shane Suit Settlement Gets Final Court Approval BON APPETIT: Fails to Pay Overtime Wages, Luttrell Says BOXY CHARM: Tatum-Rios Asserts Breach of Disabilities Act BROWN UNIVERSITY: Seeks Initial Approval of Kozlov Suit Settlement BUCCANEERS LTD: Cin-Q Wins Ruling Decertifying Class in TTA Case C. TECH COLLECTIONS: Engeman Files FDCPA Class Action in New York CAMBREX CORPORATION: Thompson Challenges Sale to Catalog CANNTRUST HOLDINGS: Owens Suit over Share Price Drop Underway CAPSTONE RESTAURANT: Keefover Files Class Suit under ADA CENTRA TECH: Rensel Renews Bid to Certify CTR Token Buyers Class CERTIFIED CREDIT: Hughes Asserts Breach of FDCPA in New Jersey CONAGRA BRANDS: Negrete Class Action Still Ongoing CONAGRA BRANDS: Settlement in Briseno Wins Preliminary Approval CONAGRA BRANDS: West Palm Beach Firefighters' Suit Ongoing CONOPCO INC: Crepps Fraud Class Action Transferred to E. D. Mo. CONOPCO INC: Richards Fraud Class Suit Transferred to E. D. Mo. CONTINENTAL GENERAL: Wins Final OK of $1.25-M Deal in Fastrich Case CORELLE BRANDS: Ct Narrows Claims in Consolidated Pyrex Defect Case COTTON HOLDINGS: Underpays Laborers, Cabre et al. Suit Claim CREDITECH INC: Certification of Class Sought in Neldner Suit DENTAQUEST LLC: Jenkins Seeks Certification of Employees Class DOBBERSTEIN LAW: Certification of Class Sought in Fote Suit DYNAMEX OPERATIONS: Court Narrows Claims in Ouadani FLSA Suit ECO SHIELD: Service Technicians Class Certified in Fanslau Suit ELECTROCORE INC: Faces Turnofsky Class Action Suit in New Jersey EXPERIAN INFORMATION: Class of Consumers Certified in Reyes Suit FAIRLIFE, LLC: Maltreated Dairy Cow, Olivo Claims FINANCIAL ASSET: Molinari Seeks to Certify Class FINANCIAL RECOVERY: Certification of Class Sought in Voeks Suit FINANCIAL RECOVERY: Valerio Files FDCPA Suit in New York FOCUS SERVICES: Bid for Conditional Certification Continued FORD MOTOR: 9th Cir. Vacates Lower Court's OK of Vargas Class Deal FOURPOINT ENERGY: Rounds Files Class Action in Colorado FRANKLIN COUNTY, MA: Donelan Appeals Decision in Reid Class Suit GEICO GENERAL: Interlocutory Appeal Application in Green Suit OK'd GID ORTHODONTICS: Simon et al Seek to Certify Settlement Class GOLDEN TRUST INSURANCE: Perez Files Consumer Class Suit in Florida HARTFORD AUTO: Faces Willingham Suit in Connecticut Superior Court HEADWAY TECHNOLOGIES: Faces Ingber Antitrust Suit in N.D. Calif. HEALTHSOURCE GLOBAL: Court Compels Arbitration in Marron Labor Suit ILLINOIS: Court Narrows Claims in "Gun Violence" Exposure Suit JUUL LABS: Corkery et al. Sue over Mislabeled Cigarette Products JUUL LABS: Parents File Class Action Over E-Cigarettes in Calif. KENDALL IMPORTS: Gomez Sues Over Blind Inaccessible Website KIDPIK CORP: Nisbett Alleges Violation under Disabilities Act LUMBER LIQUIDATORS: Settlement Agreement Reached in Gold Suit MAMMOTH ENERGY: Furia is Lead Plaintiff in Consolidated Secs. Suit MASSAGE ENVY: 8th Circuit Flips Remand Order in Pirozzi Suit MDL 2672: Protective Order Bid in Clean Diesel Suit Partly Granted MDL 2819: End-Payors Move for Class Certification in Restasis MDL MEDICAL MOBILITY: Court Denies Vilanova Class Certification Bid MEDICAL NECESSITIES: Jenkins-Queen's Bid to Certify Class Granted MIDLAND CREDIT: Faces Hague Suit in District of New Jersey MIDLAND FUNDING: Arbitration Compelled in Huser FDCPA Lawsuit MIDLAND FUNDING: Faces Valentine et al. Suit in New Jersey MONEY SOURCE: Martinez's Bid to Certify Class Shelved NATIONS RECOVERY: MJ Sues Over Illegal and Unconsented Calls NATIONSTAR MORTGAGE: Settlement in Pemberton Suit Has Initial OK NAVIGANT CONSULTING: Merger-Related Suits to be Withdrawn NEW YORK: Settlement in Brooks Civil Rights Suit Has Final Approval OTIS ELEVATOR: Obtains Summary Judgment Dismissing Gorss' TCPA Case OXNARD, CA: Removes Alvarez et al. Suit to C.D. California PATENAUDE & FELIX: Moyer Moves for Rule 23 Class Certification PEP BOYS MANNY: Luis Files Labor Class Suit in California PHEAA: Winebarger Appeals C.D. California Ruling to Ninth Circuit PILLARS FUNDING: Fails to Pay Minimum Wage, Katsnelson Suit Says PORTFOLIO RECOVERY: Horowitz Asserts Breach of FDCA PPL CORP: Talen Securities Suit Remanded to State Court PURDUE PHARMA: Taylor Files RICO Class Action in Kansas QUINTI INC: Fails to Pay Overtime Wages, Ngo Says RIVERSTONE RESIDENTIAL: Casafranca Appeal on Antoine Deal Nixed SAFECO INSURANCE: Martin Suit over Housing Insurance Underway SALTILLO, MI: Whaley Files Civil Rights Class Action SANCHEZ OIL: Flynn Seeks to Certify Class of Operators SHAW INDUSTRIES: Seeks 9th Cir. Review of Decision in Fitch Suit SOUTHLAND ROYALTY: Atencio Files Class Suit in New Mexico SPECTRA ENERGY: Morris Has No Standing to Pursue Claims, Says Court STITCH FIX: Consolidated Amended Complaint Filed in Cal. Class Suit SUNWEST BANK: Appeals Ct. Affirms Wood Suit Ruling, $83K Award SWITCH ENERGY: Mickalovski Files TCPA Suit in Illinois SYMMETRY MANAGEMENT: Dunbar Seeks to Certify FDCPA & FCCPA Classes SYNCHRONY BANK: Court Certifies Class in McMullen Suit TAMKO BUILDING: Snyder Dismissed From Product Liability Suit TEXAS: Court Denies Robles' Bid to Certify Class and for New Trial UBER TECHNOLOGIES: $20MM O'Connor Suit Settlement Gets Final OK UNDER ARMOUR: Aberdeen Council Appeals Ruling in Securities Suit UNITED FINANCIAL: Gordon Seeks to Enjoin People's United Merger UNITED NATURAL: Dismissal of Data Breach Suit v. Supervalu Upheld UNITED NATURAL: Hearing Tomorrow on New England Plaintiff's Appeal UNITED NATURAL: Mediation Underway in North County Store Suit US CITIZENSHIP: Court Certifies Class in W.A.O. APA Suit VENATOR MATERIALS: Bishop Sues over Drop in Share Prices VEREIT INC: Final Settlement Approval Hearing Set for January 21 VERMONT: Russell Seeks to Certify Suit over Muslim Inmates' Diet VISA INC: ATM Operator Plaintiffs Move for Class Certification VITAL RECOVERY: Ingraham Seeks OT Pay for Collections Specialists VITALE'S ITALIAN: Torres Moves for Class Certification Under FLSA VOLUME SERVICES: Seeks Prelim. Approval of $750K Raquedan Suit Deal WARNER MUSIC: Seeks 9th Circuit Review of Williams Suit Ruling WM BOLTHOUSE: Felix Ordered to File Settlement Motion by Nov. 8 WONDERFUL COMPANY: Failed to Pay Wages, Zeferino, et al Say ********* 5TH AVENUE LANDSCAPING: Underpays Workers, Contreras Suit Alleges ----------------------------------------------------------------- MARVIN CONTRERAS, individually and on behalf of all others similarly situated, Plaintiff v. 5TH AVENUE LANDSCAPING, INC.; 5TH AVENUE LANDSCAPING EXPERTS, INC.; SAMIR SLIM and SAMI SLIM, Defendants, Case No. 1:19-cv-23872-XXXX (S.D. Fla., Sept. 17, 2019) is an action against the Defendant's failure to pay the Plaintiff and the class overtime compensation for hours worked in excess of 40 hours per week. The Plaintiff Contreras was employed by the Defendant as landscaper. 5th Avenue Landscaping, Inc. provides full service landscaping for luxury homes and commercial property. [BN] The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com AARGON AGENCY: Genay Files Class Suit under FDCPA ------------------------------------------------- A class action lawsuit has been filed against Aargon Agency, Inc. The case is styled as Joy Genay, on behalf of herself and all other similarly situated consumers, Plaintiff v. Aargon Agency, Inc. doing business as: Aargon Collection Agency, Defendant, Case No. 2:19-cv-04672-GJP (E.D. Pen., Oct. 8, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Aargon Agency, Inc. is a Debt collection agency in Nevada.[BN] The Plaintiff is represented by: Nicholas J. Linker, Esq. Zemel Law LLC 1373 broad st. Suite 203-c Clifton, NJ 07013 Tel: (862) 227-3106 Email: nl@zemellawllc.com ADVANCED CALL CENTER: Weinberg Files FDCPA Class Action in New York ------------------------------------------------------------------- A class action lawsuit has been filed against Advanced Call Center Technologies, LLC. The case is styled as Alexander J. Weinberg, individually and on behalf of all others similarly situated, Plaintiff v. Advanced Call Center Technologies, LLC, Defendant, Case No. 2:19-cv-05699 (E.D. N.Y., Oct. 9, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Advanced Call Center Technologies, LLC (ACT) provides contact center and back office support services.[BN] The Plaintiff is represented by: David M. Barshay, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Email: dbarshay@barshaysanders.com - and - Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com ALAMEDA SUPERIOR COURT: Laine Suit Dismissed Without Leave to Amend ------------------------------------------------------------------- Judge James Donato of the U.S. District Court for the Northern District of California dismissed the case captioned JOSHUA LAINE, et al., Plaintiffs, v. SUPERIOR COURT OF ALAMEDA COUNTY HAYWARD HALL OF JUSTICE, et al., Defendants, Case No. 3:18-cv-04390-JD (N.D. Cal.). The Plaintiffs filed a putative class action against a number of California state courts, state court judges, state court personnel, counties, attorneys and others for claims arising out of state court family law proceedings. After a prior dismissal with leave to amend, Laine has not established federal subject matter jurisdiction, and so the case is dismissed, the District Court rules. Judge Donato holds that Laine has the burden of establishing jurisdiction. The Court's prior order of dismissal concluded that the case is fundamentally a child custody dispute, which means there is no obvious federal subject matter jurisdiction. Laine was given an opportunity to amend the complaint to demonstrate federal jurisdiction, but the Second Amended Complaint ("SAC") offers only the conclusory statement that the Plaintiffs are not submitting their family law matters to the Northern District of California but rather require federal intervention from state, et al., abuse. That does not state a basis for jurisdiction, and the body of the SAC again makes clear that the case is about, in Laine's own words, four family law cases where each case correlates one another between the same judges, the system, third parties and lawyers. The SAC also does not respond to the separate and independent issue of the Younger and Rooker-Feldman abstention doctrines, which the Court found to bar further federal proceedings. These SAC again alleges facts that make the application of these bars apparent on the face of the complaint. It is also worth noting that dismissal under FRCP 41(b) is appropriate. The Judge finds that Laine did not oppose any of the numerous motions to dismiss of the SAC that were filed in the case, nor did he request any extensions of deadlines to respond to those motions, so dismissal of the SAC is warranted under Rule 41(b) for failure to prosecute and to meet the Court's deadlines and order. His discretion to dismiss without leave to amend is "particularly broad" after prior leave to amend has been granted. The Court already gave Laine an opportunity to amend the complaint, despite noting that a good argument can be made for dismissal with prejudice in these circumstances. In light of that prior opportunity, the complaint's continuing jurisdictional deficiencies, and the abstention doctrines, the SAC is dismissed without further leave to amend. For the sake of clarity, the dismissal is under Rules 12(b)(1) and 12(b)(6) in light of Laine's pro se status, although Rule 41(b) is an independent basis as well. For the same reason, the Judge declines to award sanctions, and all Rule 11 and sanction requests are denied. The clerk of the Court will close the action. A full-text copy of the Court's Sept. 17, 2019 Order is available at https://is.gd/J7pkJM from Leagle.com. Joshua Laine, Plaintiff, pro se. Debbie Laine, Plaintiff, pro se. Jeremy Laine, Plaintiff, pro se. Jared Laine, Plaintiff, pro se. Poppy Laine, Plaintiff, pro se. Superior Court of Alameda County Hayward Hall of Justice, Superior Court of Contra Costa County Spinetta Family Law Center, Judicial Council, Martin Hoshino, Chad Finke, Stephen Nash, Gregory Syren, Commissioner Jason Clay, John Laettner, Boydine Hall & Nancy Young, Defendants, represented by Sharon Margaret Nagle -- snagle@bpmnj.com -- Bold, Polisner, Maddow, Nelson & Judson. County of Alameda, Defendant, represented by Rebecca S. Widen -- rwiden@htalaw.com -- Haapala, Thompson & Abern LLP & Sharon Margaret Nagle, Bold, Polisner, Maddow, Nelson & Judson. County of Contra Costa, Defendant, represented by Jason William Mauck, Contra Costa County Counsel, Torts and Civil Rights Litigation & Sharon Margaret Nagle, Bold, Polisner, Maddow, Nelson & Judson. Commission on Judicial Performance, Defendant, represented by Robert Stephen James Rogoyski, California Department of Justice, Office of the Attorney General. Alameda County Department of Child Support Services & Anne Howell, Defendants, represented by Rebecca S. Widen, Haapala, Thompson & Abern LLP. ALLERGAN PLC: Raul Seeks to Enjoin Vote on AbbVie Merger Deal ------------------------------------------------------------- JONATHAN RAUL, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. ALLERGAN PLC, BRENTON L. SAUNDERS, NESLI BASGOZ, JOSEPH H. BOCCUZI, CHRISTOPHER W. BODINE, ADRIANE M. BROWN, CHRISTOPHER J. COUGHLIN, CAROL ANTHONY DAVIDSON, THOMAS C. FREYMAN, MICHAEL E. GREENBERG, ROBERT J. HUGIN, and PETER J. MCDONNELL, Defendants, Case No. 1:19-cv-08873 (S.D.N.Y., Sept. 24, 2019), alleges violations of the Securities Exchange Act of 1934 in connection with the proposed sale of the Company to AbbVie Inc. through AbbVie's wholly owned subsidiary Venice Subsidiary LLC. On June 25, 2019, Allergan entered into an Agreement and Plan of Merger with AbbVie, whereby AbbVie will purchase the Company. Pursuant to the Merger Agreement, each of the Company's shareholders will be entitled to receive $120.30 in cash and 0.8660 of a newly issued share of AbbVie common stock. On September 16, 2019, in order to convince the Company's shareholders to vote in favor of the Proposed Transaction, the Board authorized the filing of a materially incomplete and misleading definitive proxy statement with the SEC, in violation of Sections 14(a) and 20(a) of the Exchange Act. According to the complaint, the Proxy Statement contains the financial analyses and opinion of J.P. Morgan concerning the Proposed Transaction, but fails to provide material information concerning such. With respect to J.P. Morgan's Discounted Cash Flow Analysis, for the two companies, the Proxy Statement fails to disclose: (i) terminal period unlevered free cash flows for both companies; (ii) implied terminal value multiples for the companies; and (iii) the inputs and assumptions with respect to the selected discount rate range of 8.5% to 9.5%. The Proxy Statement contains information concerning the background of the Proposed Transaction, but fails to disclose material information concerning such. Specifically, the Proxy Statement fails to disclose critical information concerning potential conflicts of interest related to the Company's insiders. For instance, while the Proxy Statement notes that Defendant Saunders and another member of the Company’s Board will joining the Board of AbbVie following the completion to the Proposed Transaction, the Proxy Statement fails to disclose whether any members of the Company's management will be continuing in their respective positions following the close of the Proposed Transaction. Further, the Proxy Statement fails to disclose any details of employment related discussions and negotiations, says the complaint. For these reasons, Plaintiff asserts claims against Allergan and the Board for violations of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9. Plaintiff seeks to enjoin Defendants from taking any steps to consummate the Proposed Transaction unless and until the omitted material information is disclosed to Allergan shareholders before the vote on the Proposed Transaction or, in the event the Proposed Transaction is consummated, recover damages resulting from the Defendants' violations of the Exchange Act. Plaintiff is the owner of Allergan shares. Allergan is a publicly traded master limited Company which owns and operates a diversified global network of integrated assets providing midstream logistic solutions, primarily consisting of the transportation, storage, processing and marketing of liquid petroleum products.[BN] The Plaintiff is represented by: Joshua M. Lifshitz, Esq. LIFSHITZ & MILLER LLP 821 Franklin Avenue, Suite 209 Garden City, NY 11530 Telephone: (516) 493-9780 Facsimile: (516) 280-7376 E-mail: jml@jlclasslaw.com ALLIED UNIVERSAL: Court Certifies Settlement Class in Douglas Suit ------------------------------------------------------------------ In the class action lawsuit styled as KIRK DOUGLAS, individually and on behalf of all others similarly situated, the Plaintiff, vs. ALLIED UNIVERSAL SECURITY SERVICES, ALLIED BARTON SECURITY SERVICES LLC, AND ALLIED SECURITY HOLDINGS LLC, the Defendants, Case No. 17-CV-6093-SJB (E.D.N.Y., Filed Oct. 18, 2017), the Hon. Judge Sanket J. Bulsara entered an order on Oct. 10, 2019: 1. granting motion for preliminary approval of class and collective settlement; 2. appointing Christopher Q. Davis, Esq. and Rachel M. Haskell, Esq. of the Law Office of Christopher Q. Davis, PLLC, as Class Counsel; and 3. certifying this NYLL Settlement Class for settlement purposes: "all present and former individuals employed as Airport Security Agents, Operation Assistants, or Tour Supervisors at JFK by Defendants at any time between Sept. 1, 2013 and May 28, 2019". The Court adopts this timeline to govern the settlement process in the case: Preliminary Approval Granted October 10, 2019 Defendants Provide Settlement Administrator Class Contract List October 25, 2019 Notice Mailing and Emailing Deadline November 10, 2019 Opt-Out Period (last day to submit Opt-Out Statement or an objection) 60 days after mailing of notice; if notices returned undeliverable 60 calendar days from second mailing, but no more than 90 calendar days from first mailing. Deadline to Submit Consent to Join Form Any time before Fairness Hearing. Settlement Administrator will stamp the postmark date on the original of each Opt-out Statement, Objection and/or Consent to Join Form that it receives and shall send copies to Counsel The first Friday after receipt Settlement Administrator will email a final report detailing the results of the class mailings and participation business day following the expiration of the Opt-Out Period, again 1 business day before the fairness hearing, and anytime upon request. Final Approval Motion and Fee Motion Date March 6, 2020 Final Approval Hearing Date March 23, 2020 at 10 AM Final Effective Date As provided in the Amended Settlement Agreement, Section 2.14 Funding of QSF required from Defendants 15 days after the Final Effective Date Settlement Administrator to mail checks to Claimants and Opt-in Claimants, class counsel, class representative’s enhancement award 30 days after the Final Effective Date Acceptance Period (i.e. checks voided if not negotiated) 90 days after the date of the mailing of the checks. The Plaintiff filed the action alleging that he was not fully paid for overtime work in violation of the Fair Labor Standards Act and New York Labor Law. The action was filed as a putative collective and class action.[CC] ALLSTATE CORPORATION: Gebka Seeks to Certify TCPA Classes --------------------------------------------------------- In the class action lawsuit styled as THOMAS GEBKA, an individual, on behalf of himself and all others similarly situated, the Plaintiff, vs. THE ALLSTATE CORPORATION, a Delaware limited liability company, the Defendant, Case No. 1:19-cv-06662 (N.D. Ill.), the Plaintiff asks the Court to enter an order: 1. certifying these classes: Cell Phone Class: "(1) all persons within the United States: (a) Defendant and/or a third party acting on their behalf, made one or more non-emergency telephone calls; (b) promoting Defendant's products or services; (c) to the person's cellular telephone number; (d) using an automatic telephone dialing system; (e) without prior express consent; and (f) at any time in the period that begins four years before the date of the filing of this Complaint to trial"; and Do Not Call Class: "(1) all persons in the United States (2) who Defendant or some person on Defendant's behalf (3) initiated more than one telephone solicitations (4) to a telephone number registered with the National Do Not Call Registry (5) where the subject telephone number had been registered more than thirty-one days prior to the initiation of the telephone solicitations (6) within any twelve month period within four years prior to the filing of this action"; 2. appointing Plaintiff as class representatives; 3. appoint his lawyers as counsel for the classes; and 4. allowing Plaintiff to file a memorandum in support of his motion after taking class discovery. The Defendant placed numerous automatically dialed telemarketing calls to Plaintiff's cellular telephone between August and September, despite Plaintiff's phone number being on the National Do Not Call Registry. The Plaintiff brings this class action against The Allstate Corporation for violations of the Telephone Consumer Protection Act.[CC] Attorney for the Plaintiff are: Keith J. Keogh, Esq. Timothy J. Sostrin, Esq. KEOGH LAW, LTD. 55 West Monroe Street, Suite 3390 Chicago, IL 60603 Telephone: (312) 726-1092 Facsimile: (312) 726-1093 E-mail: Keith@KeoghLaw.com ALPHA RECOVERY: Miles Sues Over Misleading Collection Letter ------------------------------------------------------------ Michelle Miles, individually and on behalf of all others similarly situated, Plaintiff, v. Alpha Recovery Corp, Defendant, Case No. 2:19-cv-18639-KSH-CLW (E.D. N.Y., Oct. 2, 2019) is an action seeking to recover for violations of the Fair Debt Collection Practices Act. In its efforts to collect an alleged Debt, Defendant contacted Plaintiff by letter dated October 4, 2018. The Letter was the initial written communication Plaintiff received from Defendant concerning the alleged Debt. A statement of "the amount of the debt," when the debt is not owed at all by the consumer, violates the FDCPA, asserts the complaint. The FDCPA prohibits the false representation of the character, amount, or legal status of any debt. The Letter claims that Plaintiff owed $884.65 when the Plaintiff, in fact, did not owe any money at all to the entity on whose behalf Defendant was seeking to collect, says the complaint. Plaintiff Michelle Miles is an individual who is a citizen of the State of New York residing in Kings County, New York and is a natural person allegedly obligated to pay a debt. Defendant is regularly engaged, for profit, in the collection of debts allegedly owed by consumers.[BN] The Plaintiffs are represented by: Craig B. Sanders, Esq. BARSHAY SANDERS, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 706-5055 Email: csanders@barshaysanders.com AMYRIS INC: Continues to Defend Calif. Securities Class Suit ------------------------------------------------------------ Amyris, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on October 1, 2019, for the fiscal year ended December 31, 2018, that the company continues to defend a securities class action suit currently pending before the U.S. District Court for the Northern District of California. On April 3, 2019, a securities class action complaint was filed against Amyris and its CEO, John G. Melo, and former CFO (and current Chief Business Officer), Kathleen Valiasek, in the U.S. District Court for the Northern District of California. The complaint seeks unspecified damages on behalf of a purported class that would comprise all persons and entities that purchased or otherwise acquired the company's securities between March 15, 2018 and March 19, 2019. The complaint alleges securities law violations based on statements and omissions made by the Company during such period. Subsequent to the filing of the securities class action complaint, on June 21, 2019, a purported shareholder derivative complaint was filed in the U.S. District Court for the Northern District of California (Bonner v. Doerr, et al., Case No. 4:19-cv-03621) based on similar allegations to those made in the securities class action complaint described above. The derivative complaint names Amyris, Inc. as a nominal defendant and names a number of the Company's current and former officers and directors as additional defendants. The lawsuit seeks to recover, on the Company's behalf, unspecified damages purportedly sustained by the Company in connection with allegedly misleading statements and/or omissions made in connection with the Company's securities filings. The derivative complaint also seeks a series of changes to the Company's corporate governance policies, restitution to the Company from the individual defendants, and an award of attorneys' fees. Amyris said, "These cases are in the initial pleadings stage. We believe the complaints lack merit, and intend to defend ourselves vigorously. Given the early stage of these proceedings, it is not yet possible to reliably determine any potential liability that could result from these matters." Amyris, Inc. provides various alternatives to a range of petroleum-sourced products worldwide. The company uses its industrial bioscience technology to design microbes primarily yeast, as well as to convert plant-sourced sugars into renewable ingredients. The company is based in Emeryville, California. APOGEE ENTERPRISES: EFCO Acquisition-Related Suit Ongoing --------------------------------------------------------- Apogee Enterprises, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 3, 2019, for the quarterly period ended August 31, 2019, that the company continues to defend a purported securities class action suit related to the company's acquisition of EFCO Corporation. On November 5, 2018, a shareholder filed a purported securities class action against the Company and certain named executive officers. On April 26, 2019, the new lead plaintiff filed an amended complaint, alleging that, during the purported class period of May 1, 2017 to April 10, 2019, the Company and the named executive officers made materially false or misleading statements or omissions about the Company's acquisition of EFCO Corporation on June 12, 2017, and about the Company's Architectural Glass business segment, in violation of the federal securities laws. Apogee Enterprises said, "We intend to vigorously defend this matter." Apogee Enterprises, Inc. designs and develops glass and metal products and services in the United States, Canada, and Brazil. The company operates in four segments: Architectural Framing Systems, Architectural Glass, Architectural Services, and Large-Scale Optical Technologies (LSO). The company was founded in 1949 and is headquartered in Minneapolis, Minnesota. ATLANTIC CREDIT: Lindala Moves for Certification of Classes ----------------------------------------------------------- William Lindala moves the Court to certify the classes described in the complaint of the lawsuit entitled WILLIAM LINDALA, individually and on behalf of all others similarly situated v. ATLANTIC CREDIT AND FINANCE INC. and MIDLAND FUNDING LLC, Case No. 2:19-cv-01450-LA (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff avers. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com BALTIMORE COUNTY, MD: Borkowski Suit Tossed; Parties May Amend Suit ------------------------------------------------------------------- District Judge Deborah K. Chasanow of the United States District Court for the District of Maryland issued a Memorandum Opinion granting Defendants' Motion to Dismiss the case captioned ANNA BORKOWSKI, et al. v. BALTIMORE COUNTY, MARYLAND, et al. Civil Action No. DKC 18-2809. (D. Md.). In this civil rights class action, Defendants filed motions to dismiss a second amended complaint and motions to seal. Plaintiffs Anna Borkowski, Katelyn Frank, Marcella Fegler, Annemarie Hendler, and Kaila Noland, on their own behalf and on behalf of those similarly situated, bring suit against twenty-two Defendants alleging twenty counts related to Defendants' handling of Plaintiffs' sexual assault or rape investigations. Plaintiffs allege that all Defendants adopted "discriminatory policies and/or [exhibited] deliberate indifference [] to artificially lower the number of recorded reports of rape and sexual assault in Baltimore County and on the UMBC campus." Plaintiffs further state that "Defendants followed written and/or unwritten policies, and . . . afforded less protection to female victims of sexual assault than to victims of other crimes." Plaintiffs allege that all Defendants, or combinations thereof, infringed upon their rights in violation of (1) 42 U.S.C. Section 1983, civil action for deprivation of equal protection and first amendment rights (2) 42 U.S.C. Section 1985, conspiracy to interfere with civil rights (3) 42 U.S.C. Section 1986, action for neglect to prevent conspiracy to interfere with civil rights (4) 20 U.S.C. Section 1681, sex discrimination, failure to prevent sexual harassment, deprivation of educational rights, and erroneous outcome and (5) the Fourth Amendment to the United States Constitution, unreasonable search and seizure. The Defendants filed motions to dismiss in four groups: (1) Defendants University of Maryland Baltimore County (UMBC), the Board of Regents of the University System of Maryland (Board of Regents), the UMBC Police Department (UMBCPD) (Institutional Defendants), Dr. Freeman Hrabowski, Mark Sparks, and Paul Dillon (University Defendants); (2) Defendant Bernadette Hunton; (3) Defendants Nicholas Tomas, Kristin Burrows, Kimberly Montgomery, Morrow Lane, Rosemary Brady, Paul Dorfler, and Timothy Lee (Officer Defendants), James Johnson and Terrence Sheridan (Supervisory Officer Defendants), Baltimore County, and the Baltimore County Police Department (BCPD) (County Defendants); and (4) Defendants Scott Shellenberger, Lisa Dever, Bonnie Fox, and Krystin Richardson (State's Attorney Defendants). University Defendants attached thirty-three exhibits, Defendant Hunton attached four exhibits, and County Defendants attached nine exhibits, to their respective motions or papers. According to the Court, Plaintiffs' verbose complaint, Defendants' multiple motions to dismiss, and the parties' papers, excluding exhibits, total over five hundred pages. In this wealth of words, the parties argue past each other and fail directly to address some of the central issues in this case. The sheer volume of factual allegations and legal issues likely contributes to this confusion. As will be seen, Plaintiffs, at best, have masked meritorious allegations by the overambitious pleading, and, at worst, have simply failed to state any viable claim. The complaint will be dismissed, albeit without prejudice, and Plaintiffs will have 21 days to file a more focused, perhaps modest, third amended complaint. Group Pleadings Plaintiffs bring three claims on behalf of all Plaintiffs against all twenty-two Defendants. These claims are Count I, equal protection violations under 42 U.S.C. Section 1983, Count XVIII, conspiracy to obstruct justice under 42 U.S.C. Section 1985 and Count XIX, action for neglect to prevent conspiracy to obstruct justice under 42 U.S.C. Section 1986. Defendants argue that these Counts constitute improper group pleading or shotgun pleading' that do not meet federal pleading requirements. Plaintiffs argue that Counts I, XVIII, and XIX were pleaded as all Plaintiffs against all Defendants because these claims are the only way to state claims for a conspiracy, in which all Defendants participated, which harmed all Plaintiffs. Plaintiffs do not address the fact that Count I is not a conspiracy claim. Even if Plaintiffs were able to assign specific names responsible for these allegations, Plaintiffs have not sufficiently pleaded a claim for conspiracy under these counts. In Count I, all Plaintiffs allege that all Defendants violated 42 U.S.C. Section 1983 because Defendants followed written and/or unwritten policies, and thus afforded less protection to female victims of sexual assault than to victims of other crimes. In Count XVIII, Plaintiffs allege that all Defendants were part of a broader scheme, as alleged herein, to deny female victims of sexual assault their civil rights. When alleging a Section 1985 conspiracy, the plaintiff must plead facts amounting to more than `parallel conduct and a bare assertion of conspiracy. Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. Lastly, in Count XIX, Plaintiffs state that any Defendant or Defendants could have stopped or lessened the broader scheme, as alleged herein. The remainder of each count lodges accusatory and bald accusations that do not squarely support a conspiracy amongst the twenty-two Defendants. Such an approach falls short of that which is required to overcome a motion to dismiss. Accordingly, Counts I, XVIII, and XIX will be dismissed, and those counts will not further be discussed. The Baltimore County Police Department Defendants argue that the Baltimore County Police department should be dismissed as a Defendant. Plaintiffs do not contest this point. The Baltimore County Police Department is not sui juris. The Police Department is simply an agency of Baltimore County. Accordingly, Defendant Baltimore County Police Department will be dismissed as a Defendant. Eleventh Amendment Immunity The Eleventh Amendment bars suits in federal court for monetary damages against a state or state officials acting in their official capacity. Three exceptions exist to a state's sovereign immunity. First, a state may waive its immunity and consent to suit in federal court. Although the State of Maryland has waived its sovereign immunity for certain types of actions brought in state court pursuant to the Maryland Tort Claims Act, it has not waived its Eleventh Amendment immunity for actions brought in federal court. Second, immunity does not bar a suit against a state official when a plaintiff is seeking prospective relief to end a continuing violation. Finally, Congress may validly abrogate a state's Eleventh Amendment immunity, but it has not done so here. University Defendants The University Defendants state that Defendants UMBC, Board of Regents, and UMBCPD are immune from claims made pursuant to 42 U.S.C. Section 1983, 1985, and 1986 and that the individual Defendants, Hrabowski, Sparks, and Dillon, are immune from suit in their official capacities. Plaintiffs argue that the State of Maryland has waived any claim to Eleventh Amendment immunity as to any University Defendant that is not the University System of Maryland. Similarly, individuals sued in their official capacity as state agents are entitled to the same immunity. As a general matter, the Eleventh Amendment does not bar suits for damages against state officers, so long as those officers are sued in their individual capacities. The University Defendants assert that Defendants UMBC, Board of Regents, and UMBCPD are immune from suit because Congress has not abrogated States' Eleventh Amendment immunity in connection with U.S.C. Section 1983, 1985, and 1986 and that Maryland has not waived Eleventh Amendment Immunity for claims against its public universities. As for the individual Defendants, the University Defendants argue that to the extent Plaintiffs are alleging that the Individual Defendants are liable in their official capacities, the claims are barred by Eleventh Amendment immunity. Defendants argue that immunity is proper because State employees share in the State's immunity from being sued in federal court because a suit against the state officials acting in their official capacities is a suit against the State. Defendants also state that they are not persons under Section 1983. Plaintiffs counter, arguing that these Defendants have consented to be sued and Defendant UMBCPD is not a state agency for Eleventh Amendment purposes. Plaintiffs do not directly counter Defendants' arguments as to the individual Defendants, and only state that even if they were entitled to immunity for acts undertaken in their official capacities, they are being sued in their individual capacities as well. Plaintiffs argue that suit is proper because Defendants were not acting within the scope of their employment. The Board of Regents and UMBC, as a constituent institution of the University System of Maryland, are considered instrumentalities of the State for immunity purposes. Defendants UMBC, BOR, UMBCPD and the individual University Defendants in their official capacities will be dismissed. State's Attorney Defendants As discussed above, individuals sued in their official capacity as state agents are entitled to Eleventh Amendment immunity. Plaintiffs' arguments to the contrary that State's Attorneys only act locally, Maryland has not obligated itself to reimburse State's Attorneys for lawsuits against them, or that Maryland does not expressly consider State's Attorneys and their employees arms of the State lack proper support and do not overcome this definitional hurdle. Accordingly, the State's Attorney Defendants in their official capacities will be dismissed. Absolute Prosecutorial Immunity The State's Attorney Defendants argue that they are entitled to absolute immunity from suit for the plaintiffs' claims that they engaged in unlawful behavior, because the decision regarding whom to prosecute is a core function of their roles as advocates for the State. Plaintiffs insist that the State's Attorney Defendants' actions were ultra vires, outside of the law, and they are not entitled to protection. Plaintiffs specifically allege the following conduct as outside the realm of prosecutorial immunity: destroying evidence, threatening victims, and extra-territorial intimidation. The State's Attorney Defendants do not respond to Plaintiffs' argument against absolute immunity. The State's Attorney Defendants fall short of showing that their actions were prosecutorial in nature. These Defendants merely argue that all of their actions relate to the exercise of a prosecutor's judgment about which cases to prosecute and against which individuals and make no effort to differentiate the nature of the functions performed. Thus, they have not established that they are entitled to absolute prosecutorial immunity. Qualified Immunity The County Defendants and the State's Attorney Defendants argue that they are entitled to qualified immunity. Qualified immunity is an affirmative defense to Section 1983 claims that protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Assessing qualified immunity requires a multi-step analysis with shifting burdens of proof. If the plaintiff meets this burden, the defendant then bears the burden of proof on the question of whether the right in question was clearly established at the time of the alleged misconduct. As will be discussed, Plaintiffs have not met their burden. 42 U.S.C. Section 1983 As succinctly stated by Judge Hollander: To state a claim under Section 1983, a plaintiff must allege (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. The phrase under color of state law is an element that is synonymous with the more familiar state-action requirement and the analysis for each is identical. Equal Protection Plaintiffs allege in Counts V, VI, and XX that Defendants' acts prevented Plaintiffs from enjoying equal protection under the law. Defendants argue that Plaintiffs' equal protection claims must fail because there is no class similarly situated to these Plaintiffs and a discriminatory purpose is absent in this case. To succeed on an equal protection claim, a plaintiff must demonstrate that she has been treated differently from others with whom she is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination. Here, Plaintiffs fail to provide any sufficient, nonconclusory, allegations that they were treated differently than similarly situated individuals. Notably, Plaintiffs do not allege any facts to support an inference that the investigative processes were the result of gender discrimination. Further, Plaintiffs fail to identify a discriminatory intent on behalf of any Defendant. Plaintiffs are not required as a matter of law to point to a similarly situated comparator to succeed on a discrimination claim. For example, the second amended complaint states that between 2009 and 2014, 34% of reports of rape and sexual assault were classified as unfounded. Plaintiffs go on to state how this data is a statistical impossibility and shows that Defendants were engaged in improper practices. Plaintiffs further allege that female victims of sexual assault are less likely to have their cases investigated than victims of other crimes. Plaintiffs do not, however, provide how many of those reports were made by female victims opposed to male victims, the gender percentages as to victims of other crimes, or any other useful comparison. Plaintiffs do not directly address their deficiencies of discriminatory evidence but rather state that 91% of sexual assault victims are women and that Defendants' outdated, hostile attitudes towards women, women's roles, and women's sexuality were the underlying causes of Defendants' unconstitutional behavior. Thus, Plaintiffs have failed sufficiently to plead an equal protection claim. Accordingly, Counts V, VI, and XX will be dismissed. First Amendment Claims Plaintiff Borkowski and class Plaintiffs allege that the State's Attorney Defendants and Defendants Baltimore County, Montgomery, Tomas, Burrows, Dorfler, Johnson, and Sheridan deprived them of their first amendment rights. Specifically, Plaintiffs allege that those Defendants interfered with Ms. Borkowski's right to present sworn testimony to a Maryland District Court Commissioner, that she has the right to be free from retaliation by a public official for the exercise of her rights and that Defendants' retaliatory actions adversely affected Ms. Borkowski and other class members' constitutionally protected speech in that they were intimidated from testifying. The complaint does not outline, in count II, precisely what Ms. Borkowski contends were the retaliatory actions, or by which Defendant. As outlined above, the second amended complaint, beginning at paragraph 459, recited the allegations beginning when Ms. Borkowski filed an application for a statement of charges with a District Court Commissioner on March 14, 2018. She includes only some of the Defendants by name: Defendants Montgomery, Dever, Burrows, Tomas, Shellenberger, and Fox. The State's Attorney Defendants argue that Ms. Borkowski cannot assert a federal claim against the State's Attorney Defendants for failing to investigate or prosecute her case or for dismissing the charges that she successfully filed on March 21, 2018 and that Ms. Borkowski's conduct in filing successive applications for charges is not `protected speech' under the First Amendment and may rise to the level of harassment. The County Defendants similarly argue that Plaintiff Borkowski cannot assert a claim to compel a criminal investigation or prosecution and that filing successive applications for charges is not protected speech but is harassment. The parties, again, fail to address each other's arguments or provide a proper legal framework to analyze this first amendment issue. Defendants argue that no federal appellate court has recognized that there is a federally enforceable right for the victim to have criminal charges investigated at all, let alone with vigor or competence. They claim to have plausibly stated a claim that female sexual assault victims of reasonable firmness will be unwilling to speak out against these Defendants and their tactics. A cognizable First Amendment retaliation claim requires a plaintiff to show: (1) that [plaintiff's speech was protected' (2) defendant's alleged retaliatory action adversely affected the plaintiff's constitutionally protected speech and (3) a causal relationship exists between plaintiff's speech and the defendant's retaliatory action. The second amended complaint lacks sufficient precision in Count II to allow it to proceed in its present form. For example, some of the Defendants who are sued in this count are not even mentioned in the fact section related to the filing of applications for statement of charges. Furthermore, to the extent that a prosecutor has discretion to decide how to handle charges, actions relating to those decisions would not adversely affect the protected speech. Here, however, the allegations concerning some of the Defendants' conduct appear to go beyond simply declining to investigate or pursue charges, such as visiting Ms. Borkowski's home and threatening criminal action against her if she did not desist. Whether Plaintiff Borkowski's successive filing of charges constitutes harassment cannot be determined based on the allegations in the complaint. Plaintiffs also allege that Defendants Baltimore County, Johnson, and Sheridan failed to train and/or supervise. Defendants in the proper conduct of an investigation and were deliberately indifferent to their subordinates' violations of womens' rights. Defendants argue that Plaintiffs do not plead sufficient facts to support supervisory liability under Section 1983. Section 1983 imposes liability on every person who subjects, or causes to be subjected, any person to the deprivation of any rights. The statute requires a showing of personal fault, whether based upon the defendant's own conduct or another's conduct, in executing the defendant's policies or customs. Claims premised on supervisory liability must be supported with evidence that: (1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff (2) the supervisor's response to that knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the alleged offensive practices and (3) there was an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. To state a Section 1983 claim against a county, a plaintiff must allege that the action at issue was one that executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers or that represents informal governmental custom. Counties and other local governments cannot be held liable under Section 1983 for injuries inflicted by their employees or agents based on the theory of respondeat superior that is, for an injury inflicted solely by its employees or agents. Plaintiffs' claims of supervisory liability do not withstand Defendants' motions to dismiss. Plaintiffs make no specific allegations that Defendants Johnson and Sheridan had knowledge of the BCPD officers' conduct. Plaintiffs do not argue that Defendants Johnson and Sheridan had any specific response to the BCPD officers' conduct. Plaintiffs do not show how Defendants Johnson and Sheridan's failure to respond resulted in Plaintiffs' injuries. Finally, Plaintiffs do not plead or prove that the field manual proximately caused the deprivation of their rights. Accordingly, Plaintiffs have failed to state a claim in Count II for failure to train and/or supervise as to Defendants Johnson, Sheridan, and Baltimore County. Count II will be dismissed. Plaintiff Borkowski also brings Count IV against Defendant Baltimore County and the State's Attorney Defendants for deprivation of equal protection retaliation against Ms. Borkowski's family resulting in a deprivation of familial relations. Plaintiff Borkowski argues that Emily Borkowski's firing from the State's Attorney's Office] was a retaliatory, unjustified act, undertaken intentionally and maliciously to punish and further intimidate Plaintiff Borkowski for attempting to assert her right to free speech. The State's Attorney Defendants argue that Plaintiff Borkowski lacks standing to sue for any alleged damages that her sister may have suffered. The County Defendants similarly argue that Plaintiff Borkowski lacks standing to sue on behalf of her sister's firing. Defendants are correct that Plaintiff Borkowski lacks standing to collect damages on behalf of her sister's firing. The Fourth Circuit analyzed an analogous case in Smith v. Frye, 488 F.3d 263 (4th Cir. 2007). In Smith, the plaintiff brought a Section 1983 claim alleging that his mother was fired in retaliation for the plaintiff's running for county clerk. The Fourth Circuit held that allowing a relative to collect for emotional damages and humiliation resulting from [a family member's] discharge from her employment casts the net of possible Section 1983 liability too broadly. Here too, Plaintiff Borkowski lacks a sufficient injury in fact to bring suit predicated on her sister's firing. Accordingly, Count IV will be dismissed. 42 U.S.C. Section 1985 Plaintiffs bring Counts III, VII, and XV under 42 U.S.C. Section 1985. Although not specified by subsection, these counts appear to allege violations of subsection two. Defendants argue that Plaintiffs' conspiracy-based counts each fail to state a claim upon which relief can be granted. Plaintiffs alleging unlawful intent in conspiracy claims under Section 1985 must plead specific facts in a non-conclusory fashion to survive a motion to dismiss. Section 1985(2) is divided into two separate clauses. The first clause applies if two or more persons: conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror. The second clause of Section 1985(2) applies when two or more persons: conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws. A claim under the second clause of Section 1985(2) will not survive a motion to dismiss without a sufficient allegation of class-based animus. As discussed above, Plaintiffs fail to state an equal protection claim. Accordingly, Counts III, VII, and XV will be dismissed. Count VIII will similarly be dismissed. Viability of a Section 1986 claim is based on the antecedent Section 1985 claim. If the Section 1985 claim is dismissed, the Section 1986 claim also fails. Fourth Amendment Plaintiffs bring Count XIV against Defendants Baltimore County, Sheridan, Johnson, Shellenberger, Dever, Fox, and Richardson for unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution. This claim is predicated upon the allegedly unlawful SAFE exams conducted by GBMC. The County Defendants argue that this claim should be dismissed because "the searches' at issue were both consented to and reasonable. The State's Attorney Defendants argue that Plaintiffs cannot prove a violation of informed consent. Plaintiffs do not respond to the State's Attorney Defendants' arguments. The Fourth Amendment provides, in pertinent part, the right of the people to be secure in their persons and houses against unreasonable searches and seizures, shall not be violated. Plaintiffs allege that (1) Defendant BCPD deceived the subjects of the searches, nullifying consent (2) consent' obtained without informing victims that the SAEKs would be destroyed without being used to solve any crimes, including the victims assaults, is no consent at all and (3) the consent forms were inadequate to allow the female victims of sexual assault to give informed consent to the procedure. Plaintiffs do not provide the contents of the GBMC consent forms. Plaintiffs do not bring suit against any GBMC individual or entity, but allege that performing intrusive searches without informed consent constitutes medical battery. Plaintiffs do not allege that they understood the SAFE exams were conducted by medical personnel for medical purposes, rather than for crime detection. The fact that some SAEK evidence was destroyed after the examinations occurred does not obviate the consent given when they were conducted. Further, Plaintiffs do not allege that any individual Defendant played any role in the creation of GBMC's consent forms. All further allegations in the second amended complaint as to Defendants vitiating Plaintiffs' consent are conclusory and fail to state a claim under Fed.R.Civ.P. 12(b)(6). Accordingly, Count XIV will be dismissed. 20 U.S.C. Section 1681 Sex discrimination Plaintiffs Fegler, Frank, and Noland In Counts IX, XVI, and XVII, Plaintiffs allege that Defendants Board of Regents, UMBC, and UMBCPD were deliberately indifferent to Plaintiffs Fegler's, Frank's, and Noland's sexual assault complaints in violation of Title IX of the Education Amendments of 1972 (Title IX). In Count IX, Plaintiffs allege that the Institutional Defendants were deliberately indifferent to Ms. Frank's rape because they hired a biased investigator to pantomime an investigation into Ms. Frank's complaint of sexual assault. The second amended complaint further states that after Plaintiff Frank filed her complaint of sexual assault, UMBC hired Defendant Hunton to investigate the complaint, provided Plaintiff Frank an opportunity to participate in the investigation, provided her with the final report held a hearing and provided her an opportunity to appeal the Board's decision. In Count XVI, Plaintiffs allege that the Institutional Defendants were deliberately indifferent to Ms. Fegler's rape because they conducted a sham investigation of Ms. Fegler's complaint of sexual assault. Defendants state, and Plaintiffs do not dispute, that as evidenced by the facts alleged, and the documents from the investigatory file of the complaint at issue, it is undisputed that UMBC conducted an investigation, held a hearing, and heard Ms. Fegler's appeal. In Count XVII, Plaintiffs allege that the Institutional Defendants were deliberately indifferent to Ms. Noland's rape because they hired a biased investigator to pantomime an investigation of Plaintiff Noland's complaint of sexual assault. After Plaintiff Noland filed her complaint of sexual assault, UMBC hired Defendant Hunton to investigate the complaint, provided Plaintiff Noland an opportunity to participate in the investigation, provided her with the investigator's final report and provided her notice of the resolution of her complaint. Although the process and results were not perfect, Plaintiffs have not met the bar for deliberate indifference. Plaintiffs' argument that withholding punishment from two out of the four alleged assailants identified by Plaintiff Fegler was deliberately indifferent is not actionable under Title IX. Plaintiffs further argue that Defendant Hunton's investigative choices to credit evidence or testimony from anyone but Plaintiff Frank was retaliation. These allegations are accusatory and lack support. Thus, any retaliation claim under Title IX fails to state a claim for relief under Fed.R.Civ.P. 12(b)(6). Accordingly, Counts IX, XVI, and XVII will be dismissed. Plaintiffs Borkowski and Hendler In Count XIII, Plaintiffs allege that the Institutional Defendants were deliberately indifferent to Ms. Borkowski and Ms. Hendler's rapes because the Defendants conducted only a sham investigation into" Ms. Borkowski's complaint of sexual misconduct. Defendants argue that, because Ms. Borkowski and Ms. Hendler are both students of Towson University and not UMBC, they have no standing to make a Title IX gender discrimination claim against the Institutional Defendants. Title IX prohibits discrimination on the basis of sex in any education program or activity receiving Federal financial assistance. The second amended complaint states that Ms. Borkowski was a former student and planned to apply to a UMBC program for a master's in social work. This future intent, however, is not sufficient to support a current deprivation of an education program or activity. Thus, Plaintiffs Borkowski and Hendler cannot properly bring a claim for gender discrimination under Title IX against an institution which did not deprive them of any educational program or activity. Accordingly, Count XIII will be dismissed. Plaintiff Borkowski cannot state a claim for denial of educational opportunities under Title IX. Accordingly, Count XII will be dismissed as to Plaintiff Borkowski. Erroneous Outcome In Count X, Plaintiffs assert an erroneous outcome claim based on gender discrimination under Title IX due to the allegedly biased investigation of Defendant Hunton into Plaintiff Frank's complaint of sexual assault against Defendants Board of Regents and UMBC. Defendants argue that Plaintiffs fail to plausibly allege the elements of an erroneous outcome claim because Plaintiffs cite no procedural violations that caused a procedurally or otherwise flawed proceeding' to reach an erroneous outcome. Plaintiffs fail to respond to Defendants' erroneous outcome argument. Although erroneous outcome claims typically involve a plaintiff claiming innocence who was wrongly found to have committed an offense, an analysis will still be undertaken here. Plaintiff Frank falls far short of pleading an erroneous outcome claim. Plaintiff Frank's only allegations of a flawed proceeding stems from Defendant Hunton's credibility determinations. Plaintiff Frank does not identify any procedural irregularities regarding the Institutional Defendants named under Count X. Further, Plaintiff Frank does not allege any statements by members of the disciplinary tribunal or patterns of decision-making that may lend to a proper inference of gender discrimination. Accordingly, Count X will be dismissed. Denial of Educational Opportunities Count XII alleges a denial of educational opportunity by Plaintiff Frank against Defendants Board of Regents, UMBC, and UMBCPD. Plaintiff Frank states that, after the alleged assault, she lost one year of educational time and now attends a community college. Defendants argue that this claim is duplicative of Plaintiffs' claims of Title IX discrimination based on Ms. Frank's allegations of studenton-student harassment. Plaintiffs argue that these claims are not duplicative, and state factual differences listed under each Count, but fail to provide any relevant legal citation or standard to analyze a deprivation of educational opportunities under Title IX. It is unfortunate that Ms. Frank suffered severe educational setbacks, but without a sufficient claim of discrimination under Title IX, this ancillary count fails to state a claim as well. Accordingly, Count XII will be dismissed. Failure to Prevent Sexual Harassment In Count XI, Plaintiffs allege that UMBC knew that Ms. Frank's alleged assailant had previously sexually assaulted others. Defendants correctly point out, however, that Plaintiffs do not allege any details as to when the alleged assaults occurred, whom the assailant assaulted, the nature of the assaults, or who at UMBC knew about such alleged assaults. Plaintiffs do not contest these pleading deficiencies. These allegations fall far short of proper pleading. Thus, Count XI fails to state a claim upon which relief can be granted. For the foregoing reasons, the motions to dismiss filed by Defendant Hunton, the University Defendants, the County Defendants, and the State's Attorney Defendants will be granted, rules the Court. Some of the defects in Plaintiffs' second amended complaint cannot be remedied, and Plaintiffs have already amended twice, but it is not entirely clear that a more modest, focused, complaint would be futile. Accordingly, they will be granted time to file a further amendment. A full-text copy of the District Court's September 30, 2019 Memorandum Opinion is available at https://tinyurl.com/yy9yaarb from Leagle.com. Anna Borkowski & Katelyn Frank, Plaintiffs, represented by Rignal Woodward Baldwin, V --RBaldwinV@baldwinlawllc.com -- BaldwinLaw LLC & Stephen Craig Rigg -- SRigg@baldwinlawllc.com -- BaldwinLaw, LLC. Marcella Fegler, Annemarie Hendler & Kaila Noland, Plaintiffs, represented by Rignal Woodward Baldwin, V , BaldwinLaw LLC. Baltimore County, Maryland, Baltimore County Police Department, Nicholas Tomas, Kristin Burrows, Kimberly Montgomery, Paul Dorfler, James Johnson, Terrence Sheridan, Morrow Lane, Rosemarie Brady & Timothy Lee, Defendants, represented by Christopher C. Dahl -- cdahl@bakerdonelson.com -- BAKER DONELSON & Neil E. Duke -- uduke@bakedonelson.com -- BAKER DONELSON. The Board of Regents of the University System of Maryland, University of Maryland, Baltimore County, Freeman Hrabowski, III, University of Maryland Baltimore County Police Department & Mark Sparks, Defendants, represented by Erik James Delfosse , Office of the Attorney General. Lisa Dever, Scott Shellenberger, Bonnie Fox & Krystin Richardson, Defendants, represented by Wendy L. Shiff , Office of the Attorney General. Paul Dillon, Defendant, represented by Christopher Bowie Lord , Office of the Attorney General & Erik James Delfosse , Office of the Attorney General. Bernadette Hunton, Defendant, represented by Clifford Bernard Geiger -- cgeiger@kollmanlaw .com -- Kollman and Saucier PA & Alexander P. Berg -- aberg@kollmanlaw.com -- Kollman & Saucier PA. BATTLBOX LLC: Fischler Alleges Violation under Disabilities Act --------------------------------------------------------------- BattlBox LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Brian Fischler, individually and on behalf of all other persons similarly situated, Plaintiff v. BattlBox LLC, Defendant, Case No. 1:19-cv-05596 (E.D. N.Y., Oct. 2, 2019). BattlBox LLC is a sports store.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com BIG ORANGE PRODUCTIONS: Trevethan Files Class Suit in California ---------------------------------------------------------------- A class action lawsuit has been filed against Big Orange Productions, Inc. The case is styled as Donna Trevethan, on behalf of herself, all others similarly situated, Plaintiff v. Big Orange Productions, Inc., a Rhode Island Corporation, Does 1 to 50 inclusive and Target Corporation, Minnesota Corporation, Defendants, Case No. CGC19579858 (Cal. Super., Oct. 8, 2019). The case type is stated as Other Non Exempt Complaints. Big Orange Productions is an event staffing agency specializing in wine tastings, liquor promotions, street teams, in store sampling events, and trade shows.[BN] The Plaintiff appears PRO SE. BILL HAMILTON: Court Denies Class Cert. Bid in Lizarraga Suit ------------------------------------------------------------- The Hon. Susan Van Keulen denies the Plaintiffs' motion for class certification in the lawsuit titled ERIBERTO LIZARRAGA, et al. v. BILL HAMILTON ROOFING, INC., et al., Case No. 5:18-cv-03845-SVK (N.D. Cal.). The Court finds that the Plaintiffs' proposed Off the Clock Class fails to satisfy the requirements of Rule 23(a) of the Federal Rules of Civil Procedure as to commonality, typicality, and adequacy. The Court also finds that the Plaintiffs' proposed Piece Worker Class fails to satisfy the requirements of Rule 23(a) as to numerosity, commonality, typicality and adequacy. Plaintiffs Juan Padilla and Eriberto Lizarraga bring this wage-and-hour suit against Defendants Bill Hamilton ("Hamilton") and Bill Hamilton Roofing, Inc. ("BHR"). The Court held a hearing on August 20, 2019. The Plaintiffs seek to represent a class of all current and former employees who were employed by Defendants at any time between June 27, 2014 and August 20, 2019. The Plaintiffs moved for the Court to certify two classes under Rule 23: the "off the clock" class and the "piece worker" class. The Plaintiffs define the classes as: 1. Off the Clock Class: All hourly non-exempt roofing laborers who work off the clock hours and [are] not paid regular or overtime wages[,] including but not limited to those [who are] required to report to the Hamilton yard at 7am and [are] not compensated [for] any travel time from the Hamilton yard to the job site and/or back to the Hamilton yard from June 27, 2014 through August 20th, 2019; and 2. Piece Worker Class: All non-exempt roofing laborers who were paid by the piece and not compensated for their nonproductive time, including but not limited to: travel time, 20 minutes per day for rest breaks, [and] waiting time in either regular or overtime wages from June 27, 2014 through August 20th, 2019.[CC] BLUE CROSS: Shane Suit Settlement Gets Final Court Approval ----------------------------------------------------------- The United States District Court for the Eastern District of Michigan, Southern Division issued an Order granting Plaintiffs' Motion for Final Approval of Settlement in the case captioned THE SHANE GROUP, INC., et al., Plaintiffs, v. BLUE CROSS BLUE SHIELD OF MICHIGAN, Defendant, Case No. 10-CV-14360. (E.D. Mich.). A Consolidated Class Action Amended Complaint was filed against Defendant Blue Cross Blue Shield of Michigan (Blue Cross) alleging: Unlawful Agreement in Violation of Section 1 of the Sherman Act under the Rule of Reason (Count I), Unlawful Agreements in Violation of Section 2 of the Michigan Antitrust Reform Act (Count II). The class action seeks to recover overcharges paid by purchasers of Hospital Healthcare Services directly to hospitals in Michigan. Rule 23 Rule 23 of the Rules of Civil Procedure governs the Court's determination of whether the settlement is fair. The factors to be determined at the fairness hearing are: (1) the risk of fraud or collusion (2) the complexity, expense and likely duration of the litigation (3) the amount of discovery engaged in by the parties (4) the likelihood of success on the merits (5) the opinions of class counsel and class representatives (6) the reaction of absent class members and (7) the public interest. Factors Substantial Risk of Fraud or Collusion Applying the first factor, the Court finds there is no indication of fraud or collusion in this case. The Varnum Group did not raise this issue on remand. It is presumed that the class representatives and counsel handled their responsibilities with the independent vigor that the adversarial process demands absent evidence of improper incentives. Each party vigorously advanced and defended their arguments and positions before the Court. There were initially three cases filed relating to the instant Settlement which were later consolidated by the Court after the parties' agreed to do so. Various motions were filed by the parties, including a Motion to Dismiss filed by Blue Cross, which was denied by the Court. The parties engaged in extensive motion practice and discovery relating to the class certification issue and expert-related issues. It was only after these motions were filed that the Court was informed that the parties resolved the matter after extensive negotiations. Each time a status conference or a hearing was held before the Court, there were numerous attorneys in attendance representing each party. On remand, more motions were filed regarding the document sealing issue and hearings were held on the matter. The Court did not observe any signs that the parties were engaged in pretense and posturing during the years in litigation before the Court to mask collusion in reaching a Settlement Agreement with Blue Cross. Blue Cross has defended these type of anti-trust cases before the Court most vigorously, and continues to do so in another case before this Court. Class Counsel in these consolidated cases also vigorously argued each of their positions before the Court. This factor weighs in favor of the class settlement. Complexity, Expense, and Likely Duration of Litigation The Court finds that the antitrust MFN issues raised by the Plaintiffs are complex, very expensive to litigate and the litigation has been ongoing for years, including appeals. The MFN issue is not a common issue involving antitrust cases in the healthcare arena. The complexity, expense and duration factor weighs in favor of class settlement. Amount of Discovery All parties agree that they have engaged in discovery of millions of pages of documents, multiple terabyte of data, 169 depositions and preparation of competing expert reports. They argue that based on all of this discovery taken, Plaintiffs and Blue Cross are well-aware of the strengths and weaknesses of the case. They argue that based on the significant discovery taken, this factor weighs heavily in favor of approval of the settlement. There is no dispute that extensive discovery has been taken in this case. On remand, further discovery was provided to Class Members and the Objectors. In light of this extensive discovery, the Court finds that Plaintiffs and Blue Cross have been able to evaluate the propriety and fair value of the settlement. The amount of discovery taken and considered by the parties in this case weighs in favor of approving the settlement. Likelihood of Success on the Merits The Varnum Group argues that because the Department of Justice brought a federal complaint against Blue Cross, in itself, is significant evidence that Plaintiffs have a substantial likelihood of success on the merits. In addition, the Michigan legislature banned the MFN Agreements by legislation passed in March 2013. They also claim that the Court has not granted a dispositive motion in favor of Blue Cross in this suit or the related Aetna lawsuit or the original Department of Justice lawsuit. The Objectors argue that it is obvious that the proposed settlement is grossly unreasonable, which means class members have nothing to lose, and everything to gain, by going forward with trial. Plaintiffs claim they face significant risk that class members would receive nothing without a settlement, therefore the recovery of nearly $30 million reflects a substantial victory for Settlement Class members. The main question in approving a class settlement is whether the settlement is fair in light of plaintiff's likelihood of success on the merits. As noted above, extensive discovery has been held in this case. The Court has denied Blue Cross' initial Motion to Dismiss, finding at that point in the litigation that Plaintiffs had stated a claim against Blue Cross. However, in light of Plaintiffs' expert's analysis as to damages, the Court finds that the settlement amount reached by the parties is fair in light of any success the Plaintiffs may obtain on the merits of the case. Dr. Leitzinger and Plaintiffs determined that damages could be reliably and manageably measured only for purchasers covered by 23 provider agreements at 13 MFN hospitals. This resulted in damages of $118 million, with one direct purchaser, HAP, incurring $58 million in damages. HAP's exclusion from the Class, the settlement recovers approximately 50% of the damages incurred by the class. Plaintiffs face significant risk that the class members could receive nothing or some negligible amount in damages at trial or on appeal. The Court finds that the likelihood of success on the merits weighs in favor of approving the settlement. The number of opt-outs on remand have decreased and thousands of Class Members have filed claims under the settlement. Opinions of Class Counsel and Class Representatives The Varnum Group argues that in circumstances where class counsel and class representatives receive preferential treatment under the terms of the settlement, the Court should not give any weight to their opinions. They claim Class Counsel and the Class Representatives have a conflict of interest due to their heavy financial incentive to push for the proposed settlement. Plaintiffs and their counsel argue that as noted previously, counsel include leaders in complex class action litigation, particularly in the field of antitrust. They have considered voluminous discovery, expert analysis and engaged in motion practice before reaching the settlement. Plaintiffs claim they have participated in the case for years and they include all segments of the Settlement Class, including individual purchasers, institutional payors, purchasers in each of the Categories 1, 2 and 3. The judgment of the parties' counsel that the settlement is in the best interest of the settling parties is entitled to significant weight. Courts should defer to the judgment of experienced counsel who have evaluated the strength of the proofs. Class Counsel and Plaintiffs in this action all support the settlement in this case. Deference is given to their opinions because they have had the opportunity to review discovery and an opinion by an expert in the evaluation of the case. Although the Objectors argue that Class Counsel and the Class Representatives have a conflict of interest due to their heavy financial incentive to push for the proposed settlement, the Court must weigh this factor significantly in their favor. The Objectors have not overcome this burden in light of the discovery taken in this case and the expert analysis reviewed by Class Counsel and Named-Plaintiffs. Reaction of Absent Class Members The Varnum Group argues that Aetna's parallel lawsuit against Blue Cross provides significant evidence of the inadequacy of the proposed settlement. Aetna alleges it suffered over $600 million in damages, and with the trebled damages, Aetna claims damages of over $2 billion. The Varnum Group argues that the aggregate damages in this class action exceed the individual damages sought by Aetna. Plaintiffs assert that as to Aetna's estimate of damages, such estimate is based on lost profits for Aetna's sales in the market for commercial group health insurance and diminution of business value, not overcharges for purchases of hospital services attributable to Blue Cross' conduct. In this case, Plaintiffs only sought overcharges in the sale of hospital services, not total payments for hospital services paid by class members. On remand, the number of opt outs decreased by 80%, in light of the Class members' access to the unsealed record. The opt-outs only constitute about 0.005% of the Class and 0.01% of those Class members directly notified. Tens of thousands of injured Class members have filed claims, 84,094 Class Members, which includes many of the largest purchasers of hospital services in Michigan. The reaction of the absent class members weighs in favor of approval. Based on the opt out rate at about 0.005% of the Class and 0.01% of those Class members directly notified, and the few objections filed against the settlement, the low opt-out rate shows that the reaction of absent class members factor weighs in favor of settlement. The Public Interest Plaintiffs argue that the public interest in this case is to settle a complex litigation and class action and to conserve judicial resources. They claim that in this case, 169 depositions have been taken, including depositions of over 100 third parties (employees from dozens of hospitals), and that having a trial in this case would burden the court and place a burden on Michigan healthcare providers. There is a strong public interest in encouraging settlement of complex litigation and class action suits because such suits are "notoriously difficult and unpredictable and settlement conserves judicial resources. The public interest the Objectors raise is essentially a numerosity issue, which weighs in favor of a class action settlement. The public interest is strong to settle complex class action cases, such as this case. If the matter was to move forward to class action litigation, dispositive motion practice and trial, given the number of members in the class, the time to resolve this matter would be lengthy. The number of witnesses, including those in the Michigan healthcare system involved, would burden those systems. There is no guarantee at trial that the matter would be resolved in favor of class members. The public interest in settling complex class action litigation weighs in favor of settlement. Preferential Treatment/Absent Class Members The Objectors argue that based on the Sixth Circuit decision in Greenberg, incentive payments to Plaintiffs and Class Counsel are a disincentive for the class members to care about the adequacy of relief afforded by unnamed class members and instead encourages the class representatives to compromise the interest of the class for their personal gain. They claim this constitutes a bounty. Such inequities in treatment, they argue, make a settlement unfair. Plaintiffs assert that the incentive payments to Plaintiffs are allowed and encouraged to reward their efforts in litigating the case on behalf of the class. The incentives are proportional to the time and resources each Plaintiff devoted to the case. They argue that the attorneys' fees are not dependent on any award, but are subject to the Court's approval. As to absent class members, Plaintiffs argue that the settlement on their behalf is not perfunctory. The settlement calls for a recovery of over 25 percent of the $118 million they claimed are the estimated damages in this case, which, they argue is not perfunctory in light of the risks, burdens and delay of continued litigation. They claim that there is no preferential treatment in favor of the Plaintiffs and Class Counsel. The Court finds that the settlement before the Court does not give preferential treatment to the Plaintiffs, other than the incentives which are reasonable in light of their involvement in the case. The Court also finds that the relief to unnamed class members is not illusory or perfunctory. Because the settlement does not give preferential treatment to Plaintiffs or perfunctory relief to unnamed class members, the Court approves the settlement in this case. Plan of Allocation In addition to the above-stated factors, the Court must also determine whether the method of distributing the settlement fund is fair and reasonable. Plaintiffs in this case have shown that an expert has analyzed the damages in this case and the effect of the MFNs on the damages. The Plan of Allocation categorizes different claims by placing them in three categories, 23 provider agreements for which damages were able to be measured (Category 1), purchases at hospitals with an MFN agreement, but for which the plaintiff has no reliable evidence of harm or evidence of only de minimus damages (Category 2) and purchases were made when no MFN agreement was in effect (Category 3). Category 1 is allocated to receive 78 percent of the Net Settlement Fund, Category 2 will receive 20 percent of the Net Settlement Fund, and Category 3 will receive 2 percent of the Net Settlement Fund. The Plan of Allocation is structured where the stronger claims receive more than the other claims where damages are less. Any payments in Category 3 which are too small to distribute will instead be made to the non-profit organization Free Clinics of Michigan, a charity providing free health services throughout Michigan. This non-profit was agreed to by the parties. The Court has reviewed the various parties' submissions, objections and arguments. Having weighed the factors set forth above, the Court finds that the Settlement submitted to the Court is fair, reasonable and adequate and that the Plan of Allocation is also fair, reasonable and adequate. The Court approves the Settlement and the Plan of Allocation. The Objections filed, specifically filed by Christopher Andrews and the Entities/Objectors represented by the Varnum Firm, are OVERRULED and DENIED. Class Counsel's Motion for Award of Attorneys' Fees, Reimbursement of Expenses and Payment of Incentive Awards to Class Representatives is GRANTED. The Varnum Group's Motion for Attorney Fees and Costs is GRANTED IN PART and DENIED IN PART. The Varnum Group must resubmit the time sheets by October 21, 2019, highlighting the time spent on the sealed documents issue only. Any response/objections to the resubmitted time sheets must be filed by November 4, 2019. Any reply to the response/objections must be filed by November 12, 2019. The matter will be decided by the Court without any further hearings. The Motion for Final Approval of Settlement and Plan of Allocation is GRANTED. The Motion to File Response to Defendant BCBSM's Memorandum is GRANTED. A full-text copy of the District Court's September 30, 2019 Order is available at https://tinyurl.com/y3asfd8o from Leagle.com. The Shane Group, Inc. & Bradley A. Veneberg, Plaintiffs, represented by Brent W. Johnson - bjohnson@cohenmilstein.com - Cohen Milstein Sellers & Toll PLLC, Daniel E. Gustafson , Gustafson Gluek PLLC, Daniel Hedlund , Gustafson Gluek PLLC, Daniel J. Nordin , GustafsonGluek PLLC, 120 SOUTH 6TH St., Ste. 2600, Minneapolis, Minnesota, Daniel Small - dsmall@cohenmilstein.com - Cohen, Milstein, Darryl Bressack , Fink Bressack, 38500 Woodward Ave., Suite 350 Bloomfield Hills, MI 48304, E. Powell Miller - epm@miller.law - The Miller Law Firm, John E. Tangren - jtangren@dlcfirm.com - DiCello Levitt & Casey LLC, Mary Jane Fait , Theodore Bell & David H. Fink , Fink + Associates Law, 38500 Woodward Ave., Suite 350 Bloomfield Hills, MI 48304 Blue Cross Blue Shield of Michigan, Defendant, represented by Michelle L. Alamo , Dickinson Wright, 2125 Butterfield, Suite 100N, Troy, MI 48084, Michelle R. Heikka , Blue Cross Blue Shield of Michigan, Patrick B. Green , Dickinson Wright, 2125 Butterfield, Suite 100N, Troy, MI 48084, Michelle R. Heikka, Robert A. Phillips, Blue Cross Blue Shield, Thomas G. McNeill , Dickinson Wright, 2125 Butterfield, Suite 100N, Troy, MI 48084, Thomas J. Rheaume, Jr. - trheaume@bodmanlaw.com - Bodman PLC, Todd M. Stenerson , Shearman & Sterling LLP & Farayha J. Arrine , Dickinson Wright PLLC, 2125 Butterfield, Suite 100N, Troy, MI 48084, Michelle R. Heikka Blue Cross Blue Shield of Michigan Mutual Insurance Company, Defendant, represented by Rachel E. Mossman - rachel.mossman@shearman.com - Shearman & Sterling LLP, Thomas J. Rheaume, Jr. , Bodman PLC & Todd M. Stenerson- todd.stenerson@shearman.com - Shearman & Sterling LLP. BON APPETIT: Fails to Pay Overtime Wages, Luttrell Says ------------------------------------------------------- EILEEN LUTTRELL, as an individual and on behalf 0f all others similarly situated, the Plaintiff, vs. BON APPETIT MANAGEMENT CO., a California corporation; and DOES 1 through 50, inclusive, the Defendants, Case No. 19CV355098 (Cal. Super., Sept. 16, 2019) seeks to recover penalties and/or damages for Defendants' failure to pay overtime wages and failure to provide accurate itemized wage statements in violation of the California Labor Code. The Plaintiff began employment with Defendant in about September 2018, as a food services professional. The Plaintiff was hired as a non-exempt employee. Bon Appetit is a Palo Alto, California-based on-site restaurant company, that provides café and catering services to corporations, colleges, and universities. The company, a subsidiary of the British multinational corporation Compass Group since 2002, operates over 1,000 cafes in 34 states.[BN] Attorneys for Plaintiff and the Class are: W. Lee, Esq. Max W. Gavron, Esq. DIVERSITY LAW GROUP, P.C. 5 South Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 488-6555 Facsimile: (213) 488-6554 - and - William L. Marder, Esq. POLARIS LAW GROUP LLP 501 San Benito Street, Suite Hollister, CA 95023 Telephone: (831) 531-4214 Facsimile: (831) 634-0333 BOXY CHARM: Tatum-Rios Asserts Breach of Disabilities Act --------------------------------------------------------- Boxy Charm, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Lynette Tatum-Rios, individually and on behalf of all other persons similarly situated, Plaintiff v. Boxy Charm, Inc., Defendant, Case No. 1:19-cv-09150 (S.D. N.Y., Oct. 2, 2019). Boxy Charm, Inc. is a provider of monthly beauty-box subscription service.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue Fifth Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com BROWN UNIVERSITY: Seeks Initial Approval of Kozlov Suit Settlement ------------------------------------------------------------------ The parties in the lawsuit titled MAXWELL D. KOZLOV and BENJAMIN D. BOSIS, individually and on behalf of other similarly situated individuals v. BROWN UNIVERSITY IN PROVIDENCE IN THE STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS, alias, Case No. 1:19-cv-00028-JJM-LDA (D.R.I.), jointly ask the Court for an order: 1. granting conditional certification of a Fair Labor Standards Act collective class for settlement purposes only; 2. granting preliminary approval of their proposed Settlement Agreement; 3. authorizing the sending of Notice and the Consent to Join forms to Potential Collective Action Members substantially in the form as proposed and attached hereto; and 4. reserving jurisdiction over the construction, interpretation, implementation and enforcement of the Settlement.[CC] The Plaintiffs are represented by: Richard A. Sinapi, Esq. Chloe A. Davis, Esq. SINAPI LAW ASSOCIATES, LTD. 2374 Post Road, Suite 201 Warwick, RI 02886 Telephone: (401) 739-9690 E-mail: ras@sinapilaw.com cad@sinapilaw.com Defendant Brown University is represented by: Michael E. Jusczyk, Esq. Barry J. Miller, Esq. Hillary Massey, Esq. SEYFARTH SHAW LLP Two Seaport Lane, Suite 300 Boston, MA 02210 Telephone: (617) 946-4800 E-mail: mjusczyk@seyfarth.com bmiller@seyfarth.com hmassey@seyfarth.com BUCCANEERS LTD: Cin-Q Wins Ruling Decertifying Class in TTA Case ---------------------------------------------------------------- Magistrate Judge Anthony E. Porcelli of the United States District Court for the Middle District of Florida issued an Order granting Cin-Q Automobiles, Inc.'s Renewed Motion to Decertify Settlement Class, Vacate Preliminary Approval Order, and Strike Class Allegations in the case captioned TECHNOLOGY TRAINING ASSOCIATES, INC., et al., Plaintiffs, v. BUCCANEERS LIMITED PARTNERSHIP, Defendant. Case No. 8:16-cv-1622-T-AEP. (M.D. Fla.). The Court confronts the issue of the propriety of the preliminary approval of the settlement of the class claims in this matter. Following reversal and remand of the Court's prior Order denying a Motion to Intervene, the Intervenors, or Cin-Q Plaintiffs, sought a ruling by the Court decertifying the settlement class, vacating the preliminary approval order, and striking the class allegations in the above-mentioned case. Both Plaintiffs Technology Training Associates, Inc. and Larry E. Schwanke, D.C. d/b/a Back to Basiccs Family Chiropractic (TTA Plaintiffs) and Defendant Buccaneers Limited Partnership (BLP) responded in opposition. Cin-Q Action In June 2013, Cin-Q Automobiles, Inc. (Cin-Q) initiated an action against Buccaneers Limited Partnership (BLP), alleging that BLP sent unsolicited advertisements via facsimile to Cin-Q in violation of the Telephone Consumer Protection Act and its implementing regulations. The faxed advertisements pertained to Tampa Bay Buccaneers tickets and were allegedly sent by or on behalf of BLP in 2009 and 2010. In January 2014, the Court allowed Cin-Q to file a Second Amended Class Action Complaint adding Medical & Chiropractic Clinic, Inc. (M&C) as another named plaintiff and putative class representative. During the proceedings in the Cin-Q Action, the parties engaged in extensive discovery, motion practice, and mediation conferences, with no resolution, over the course of three years. On March 25, 2016, after surviving BLP's motions to dismiss and for summary judgment, Cin-Q Plaintiffs filed their Motion for Class Certification. BLP received extensions to file its response to the Motion for Class Certification, during which the parties continued to leave settlement discussions open. BLP then moved, on April 18, 2016, for a settlement conference before the Court or a designee as the parties had reached an impasse in their other settlement efforts, which Cin-Q Plaintiffs opposed. BLP never filed a response to Cin-Q Plaintiffs' Motion for Class Certification. Instead, BLP filed a Notice of Pendency of Related Action indicating that a related action was filed in the Circuit Court of the 13th Judicial Circuit in and for Hillsborough County, Florida, captioned Technology Training Associates, Inc. v. Buccaneers Limited Partnership, et al., Case No. 16-CA-004333 (Fla. Cir. Ct.) filed May 6, 2016. Technology Training I Action After the settlement discussions in the Cin-Q Action reached an impasse, and while the motion for class certification was still pending in the Cin-Q Action, TTA Plaintiffs contacted BLP regarding pursuit of the same class claims on behalf of the same purported class at issue in the Cin-Q Action. Subsequently, on May 6, 2016, TTA Plaintiffs initiated the aforementioned action against BLP in the Circuit Court of the 13th Judicial Circuit in and for Hillsborough County, Florida, alleging violations of the TCPA on behalf of the same class as the Cin-Q Action and regarding the same facsimile advertisements. Upon becoming aware of the pending Technology Training I Action, Cin-Q Plaintiffs sought to enjoin BLP from proceeding in the Technology Training I Action and moved for an order immediately certifying the class in the Cin-Q Action rather than in any other action. Cin-Q Plaintiffs also moved the state court on May 13, 2016, to allow them to intervene in, to dismiss, or to stay the Technology Training I Action. The state court set the motion for a hearing to occur on May 19, 2016, but, prior to the state court's consideration of Cin-Q Plaintiffs' motion, TTA Plaintiffs voluntarily dismissed the Technology Training I Action on May 18, 2016. Shortly thereafter, and given the existence of the claims by TTA Plaintiffs, Magistrate Judge Porcelli conducted a status conference in the Cin-Q Action on May 25, 2016 to address multiple motions filed by the parties in that action, including BLP's motion for settlement conference, Cin-Q Plaintiffs' motion to enjoin BLP from participating in a competing case, and BLP's motion for a determination that the mediation privilege had been waived. After hearing oral argument regarding the motions and the status of the Technology Training I Action, the Magistrate Judge denied all three motions and directed Cin-Q Plaintiffs and BLP to conduct another mediation conference prior to BLP's deadline for filing a response to the motion for class certification in the Cin-Q Action on June 20, 2016. During the hearing, the Magistrate Judge further directed that, if BLP entered into a settlement affecting class certification in the Cin-Q Action, BLP must notify Cin-Q Plaintiffs of the potential settlement in any separate action three days prior to the filing of any settlement or pleading relating to a settlement. Technology Training II Action Following dismissal of the Technology Training I Action, TTA Plaintiffs and BLP conducted two full days of mediation, which resulted in an agreement on a class settlement (the "Settlement") on June 16, 2016. Upon reaching the Settlement with TTA Plaintiffs, BLP provided written notice to Cin-Q Plaintiffs of the Settlement in accordance with the Magistrate Judge's directive at the May 25, 2016 hearing. Subsequently, TTA Plaintiffs initiated the instant action ("Technology Training II Action" or "this action") on June 20, 2016 . On the same day, Cin-Q Plaintiffs filed a Motion to Transfer Related Case under Local Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel seeking to (1) transfer the Technology Training II Action to Magistrate Judge Porcelli pursuant to Local Rule 1.04(b); (2) to consolidate the Cin-Q Action with the Technology Training II Action following transfer; and (3) appoint the law firms of Addison & Howard, P.A., and Anderson + Wanca as interim co-lead counsel for the class. Additionally, on that day, Cin-Q Plaintiffs filed an identical Motion to Transfer Related Case under Local Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel in the Cin-Q Action seeking the same relief, while BLP filed a Motion for a Stay or, in the Alternative, an Extension of Time in the Cin-Q Action seeking a stay of the Cin-Q Action or, alternatively, an extension of time to respond to the Cin-Q Action motion for class certification. Subsequently, on June 22, 2016, TTA Plaintiffs filed their Unopposed Motion for Preliminary Approval of Class Action Settlement and Notice to the Class. Pursuant to Rule 23(e), Plaintiffs requested, on behalf of themselves and a proposed settlement class of similarly situated persons (the "Settlement Class"), that the Court enter an order (1) preliminarily approving the parties' proposed class action settlement agreement (the "Settlement Agreement") that appoints Plaintiffs as class representatives and their attorneys as class counsel; (2) approving the form of Class Notice attached to the Settlement Agreement and its dissemination to the Settlement Class by U.S. mail, website, and publication; and (3) set dates for opt-outs, objections, and a fairness hearing. The Court granted BLP's request to stay the Cin-Q Action, stayed the Cin-Q Action pending further order of the Court, and permitted the parties in both the Cin-Q Action and the Technology Training II Action to file a supplemental memorandum regarding the appropriateness of conducting an inquiry into the allegations by Cin-Q Plaintiffs regarding the occurrence of a "reverse auction" in the Technology Training II Action. In accordance with the Court's directive, the parties briefed the issue of a "reverse auction" and the appropriateness of considering the issue prior to or after preliminary approval of class certification and the Settlement. On July 8, 2016, the deadline for the briefs, Cin-Q Plaintiffs additionally submitted their Motion to Intervene. By the motion, Cin-Q Plaintiffs sought intervention as of right under Rule 24(a) and by permission under Rule 24(b). Though Cin-Q Plaintiffs received permission from the Court to submit a brief as to the issue of a reverse auction, Cin-Q Plaintiffs wanted to intervene to move to strike the class allegations, arguing that the TTA Plaintiffs were barred by the statute of limitations and, if necessary, to oppose the motion for preliminary or final approval. In support of intervention, Cin-Q Plaintiffs argued that their motion was timely, they possessed an interest related to the subject matter of the Technology Training II Action, the disposition of the Technology Training II Action might impede or impair their ability to protect their interests, and their interests were not adequately represented by the parties in the Technology Training II Action. Both TTA Plaintiffs and BLP opposed Cin-Q Plaintiffs' request to intervene. After conducting further hearings on the matter, the Court issued its Order denying Cin-Q Plaintiffs' Motion to Transfer Related Case under Local Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel, denying Cin-Q Plaintiffs' Motion to Intervene; and granting TTA Plaintiffs' Motion for Preliminary Approval of Class Action Settlement and Notice to the Class. The Court concluded that Cin-Q Plaintiffs' arguments regarding the lack of standing by TTA Plaintiffs due to the running of the statute of limitations and the inapplicability of equitable tolling was misplaced because BLP explicitly and unequivocally waived the statute of limitations affirmative defense, with such waiver surviving in the event of termination of the Settlement Agreement. After concluding that TTA Plaintiffs established standing, the Court then determined that TTA Plaintiffs established the requirements for class certification under Rule 23(a); that the common issues outweighed and predominated over any individualized issues involved in the litigation and that proceeding as a class action provided the superior method to other methods available to fairly and efficiently adjudicate the controversy; and that the Settlement Agreement, which provided, among other things, a Settlement Fund up to $19.5 million and payments of up to $350 for the first facsimile and up to $565 total for up to five facsimiles to Settlement Class members who submitted claims, appeared fair, adequate, and reasonable solely for purposes of preliminary approval. Accordingly, the Court granted TTA Plaintiffs' Motion for Preliminary Approval of Class Action Settlement and Notice to the Class and set forth the terms of the preliminary certification of the Settlement Class, including the time for disseminating notice to Settlement Class members and the date and time for the fairness hearing. The Court denied Cin-Q Plaintiffs' Motion to Transfer Related Case under Local Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel and denied Cin-Q Plaintiffs' Motion to Intervene. The Court did not need to transfer the action because Magistrate Judge Porcelli received the case through random assignment and then by consent to his jurisdiction by TTA Plaintiffs and BLP. Further, given the preliminary approval of the Settlement and appointment of TTA Plaintiffs' Counsel as Class Counsel, the considerations did not favor consolidation of the Technology Training II Action and the Cin-Q Action and obviated the need for appointment of Addison and Anderson + Wanca. Finally, in considering Cin-Q Plaintiffs' Motion to Intervene, the Court denied Cin-Q Plaintiffs' request both for intervention as of right, pursuant to Rule 24(a), and by permission, pursuant to Rule 24(b). The Court concluded that Cin-Q Plaintiffs could assert their objections in the normal course of the proceedings, as anticipated by Rule 23, and that a potential incentive award to Cin-Q Plaintiffs and attorneys' fees for their counsel were not foreclosed, thereby negating their contention regarding the necessity for intervention as of right. Likewise, the Court concluded that permissive intervention was not appropriate since Cin-Q Plaintiffs could still assert their claims and defenses in this action at the appropriate time or could opt out of the class and continue to pursue their claims on an individual basis in the Cin-Q Action. Given the rulings in the Technology Training II Action, the Court denied all pending motions in the Cin-Q Action, including Cin-Q Plaintiffs' Motion for Class Certification. The Court also stayed the Cin-Q Action pending further order of the Court. Currently, the Cin-Q Action remains stayed pending the Magistrate Judge's ruling on the instant motion in this action. M&C Action Meanwhile, based on the initiation of the Technology Training II Action, M&C filed an action against Oppenheim and Bock Hatch, in the Circuit Court of the 13th Judicial Circuit in and for Hillsborough County, Florida, which Oppenheim and Bock Hatch then removed to federal court a week later. M&C asserted claims for (1) breach of fiduciary duty against Oppenheim and Bock Hatch and (2) aiding and abetting breach of fiduciary duty against Bock Hatch. M&C claimed that it had an interest in being named as class representative and obtaining class certification for the proposed class after vigorously litigating the Cin-Q Action for the past three years through fact discovery, class discovery, depositions, expert discovery, dispositive motions, and mediation conferences. M&C further alleged that during the course of the proceedings in the Cin-Q Action through his resignation from Anderson + Wanca on April 8, 2016, Oppenheim represented M&C as its attorney in the Cin-Q Action. In April 2016, shortly after the filing of the Motion for Class Certification Motion in the Cin-Q Action, Oppenheim resigned from Anderson + Wanca and joined Bock Hatch. Shortly thereafter, in May 2016, Bock Hatch filed the Technology Training I Action and then, in June 2016, filed the Technology Training II Action asserting claims on behalf of the same putative class members identified in the Cin-Q Action. Based on the foregoing, M&C alleged a claim for breach of fiduciary duty against Oppenheim, which it alleged was imputed to Bock Hatch, and a claim for aiding and abetting breach of fiduciary duty against Bock Hatch. M&C alleged that Oppenheim owed M&C an undivided duty of loyalty to represent M&C's interests and a duty not to represent a client with interests materially adverse to M&C, with such duties continuing after his resignation from Anderson + Wanca, which were then imputed to Bock Hatch. Further, M&C alleged that Bock Hatch aided and abetted the breach of fiduciary duty because Bock Hatch knew about Oppenheim's representation of M&C in the Cin-Q Action, and the attendant duties attached to such representation, and substantially assisted Oppenheim's breach of those duties. Following the filing of the Complaint and removal in the M&C Action, M&C filed its Amended Motion for Entry of Temporary Restraining Order and Preliminary Injunction seeking to enjoin Oppenheim and Bock Hatch from (1) representing any entity in a case alleging class-wide allegations substantially related to the Cin-Q Action; (2) representing TTA Plaintiffs in any actions substantially related to the Cin-Q Action; (3) engaging in settlement negotiations with BLP, or reaching a settlement, in any matter substantially related to the Cin-Q Action; and (4) using, disclosing, or relying upon confidential information Oppenheim gained while representing M&C, including information protected by the attorney-client privilege or mediation privilege. United States District Judge Charlene E. Honeywell denied M&C's motion for preliminary injunction in October 2016. Judge Honeywell determined that M&C could not establish a substantial likelihood of success on the merits of either its breach of fiduciary duty claim or its aiding and abetting claim, could not establish a threat of irreparable harm, could not establish that any threatened injury to M&C outweighed the harm an injunction would cause Oppenheim or Bock Hatch, and could not establish that an injunction would serve the public interest. She concluded that Oppenheim had a fiduciary duty to the entire class, including M&C, but it was questionable whether M&C could demonstrate the existence of a special fiduciary duty to M&C different from the fiduciary duty owed to all class members. Since neither Oppenheim nor Bock Hatch were pursuing relief for the class that was "materially adverse" to the interests of the other class members, including M&C, M&C was unlikely to establish a breach of any duty owed by Oppenheim, she added. Judge Honeywell determined that M&C failed to demonstrate irreparable harm because, among other things, any issue related to an alleged "reverse auction" could be remedied through the normal course of litigation, namely, the approval process of the Settlement. Judge Honeywell determined that the balance of harm weighed against entry of an injunction, since M&C demonstrated no irreparable harm it would suffer, and that entry of an injunction would not serve the public interest as no materially adverse interest existed among the parties in the M&C Action, the Cin-Q Action, and the Technology Training II Action. Subsequently, in the M&C Action, M&C sought partial summary judgment on its claims solely as to the issue of liability, and Oppenheim and Bock Hatch sought summary judgment on M&C's claims in full. Upon consideration, Judge Honeywell denied M&C's Motion for Partial Summary Judgment and granted Oppenheim and Bock Hatch's Motion for Summary Judgment, finding that M&C could not establish the existence of a fiduciary duty owed to it individually, could not establish that Oppenheim or Bock Hatch breached any fiduciary duty owed to M&C to the extent that one existed, and could not establish any damages suffered as a result of the purported breach, and, further, given the lack of a breach of fiduciary duty on the part of Oppenheim, M&C could not establish a claim for aiding and abetting such breach by Bock Hatch. M&C appealed Judge Honeywell's Order, which appeal currently remains pending before the United States Court of Appeals for the Eleventh Circuit. Given the pending appeal relating to whether Oppenheim or Bock Hatch breached any fiduciary duties or aided and abetted such breach, the Court conducted a hearing in the Technology Training II Action to address whether the matters pending in this action should be stayed pending a resolution by the Eleventh Circuit of the appeal in the M&C Action. Though the Court maintains reservations regarding the lack of any overlap between the outcome of the appeal in the M&C Action and the issues presented in this action, TTA Plaintiffs, BLP, and Cin-Q Plaintiffs all indicated that the resolution of the appeal in the M&C Action would have no bearing on the outcome in this matter, even given the findings made by the Eleventh Circuit in this action. The Eleventh Circuit Appeal in Technology Training II Action During the pendency of the M&C Action, Cin-Q Plaintiffs submitted an appeal to the Eleventh Circuit regarding the denial of their request to intervene in the Technology Training II Action. The Eleventh Circuit indicated that parties seeking to intervene under Rule 24(a)(2) must demonstrate that (1) their request to intervene is timely; (2) they have an interest relating to the property or transaction which is the subject of the action; (3) they are so situated that disposition of the action, as a practical matter, may impede or impair their ability to protect that interest; and (4) their interest is represented inadequately by the existing parties to the suit. As to the first two prongs, the Eleventh Circuit concluded that Cin-Q Plaintiffs satisfied those prongs since the request to intervene was timely and since, as class members, they would be bound by the terms of the Settlement if approved and judgment was then entered. In considering the third prong, the Eleventh Circuit determined that Cin-Q Plaintiffs satisfied that prong by demonstrating a risk that they would be bound by an unsatisfactory class action settlement. In making that determination, the Eleventh Circuit disagreed with this Court's finding that Rule 23's procedural protections provided a basis for concluding that the disposition of the Technology Training II Action would not impede or impair Cin-Q Plaintiffs' ability to protect their interests under Rule 24(a)(2)'s third prong. As part of that determination, the Eleventh Circuit considered BLP's reliance upon the decision in Grilli v. Metropolitan Life Insurance Co., 78 F.3d 1533 (11th Cir. 1996), and, in a footnote, the Eleventh Circuit indicated that the Grilli holding did not extend to cases like this one where the facts of the case demonstrated that the existing parties do not adequately represent the movants' interest. With respect to the fourth prong, the Eleventh Circuit's analysis started with the presumption that the TTA Plaintiffs' representation was adequate in pursuing the same general objective -- vindicating the class' rights under the TCPA. The Eleventh Circuit noted that the presumption is weak and merely requires the proposed intervenors to present some evidence to the contrary. Based on the record before it, the Eleventh Circuit concluded that Cin-Q Plaintiffs rebutted the weak presumption that TTA Plaintiffs adequately represented Cin-Q Plaintiffs' interests by presenting evidence that TTA Plaintiffs' Counsel engaged in a "Machiavellian" plan to undercut Cin-Q Plaintiffs' negotiating position. Based on its conclusion, the Eleventh Circuit remanded the case back to the District Court with instructions to grant Cin-Q Plaintiffs' motion to intervene as of right. The Eleventh Circuit provided no other instructions for the District Court upon remand. Cin-Q Plaintiffs now move the Court to dismiss the Technology Training II Action or, alternatively, to decertify the Settlement Class, vacate preliminary approval of the Settlement, and strike TTA Plaintiffs' class allegations. In doing so, Cin-Q Plaintiffs set forth several arguments. Initially, they contend that China Agritech, Inc. v. Resh, 138 S.Ct. 1800 (2019) requires dismissal or decertifying of the Settlement Class, vacating of the preliminary approval of the Settlement, and striking of the class allegations in this action as China Agritech does not permit the maintenance of a class action after the expiration of the statute of limitations, regardless of whether BLP waives a statute of limitations defense. Alternatively, Cin-Q Plaintiffs argue that the Court should decertify the Settlement Class, vacate preliminary approval, and strike the class allegations based upon the findings in the Eleventh Circuit Appeal. Mainly, Cin-Q Plaintiffs assert that the findings in the Eleventh Circuit Appeal dictate that TTA Plaintiffs are inadequate class representatives and that TTA Plaintiffs' Counsel are inadequate class counsel. BLP and TTA Plaintiffs each responded in opposition. BLP argues that China Agritech does not require the dismissal of this case or the striking of the class allegations. BLP further contends that its waiver of the statute of limitations for all purposes, which survives termination of the Settlement, demonstrates that no basis exists for striking the class allegations, especially since the waiver did not form an integral term of the Settlement but rather a procedural mechanism for presentation of the Settlement to the Court rather than intervention in the Cin-Q Action, which it contends still remains a viable option. In addition, BLP asserts that the Eleventh Circuit Appeal does not provide a basis for the relief sought by Cin-Q Plaintiffs since the law-of-the-case doctrine applies only to issues within the scope of the appeal, the Eleventh Circuit did not consider the adequacy of TTA Plaintiffs and TTA Plaintiffs' Counsel under Rule 23, and the record before the Eleventh Circuit was limited in scope. TTA Plaintiffs set forth similar arguments. Essentially, TTA Plaintiffs argue that China Agritech does not prevent TTA Plaintiffs from maintaining the concurrent class action and that the decision in the Eleventh Circuit Appeal does not support or require decertification. In reply, Cin-Q Plaintiffs contend that the attempts to distinguish China Agritech from the facts of this case fail such that the Technology Training II Action cannot be maintained as a class action. Cin-Q Plaintiffs further contend that the attempts to minimize the findings by the Eleventh Circuit fail, meaning TTA Plaintiffs and TTA Plaintiffs' Counsel cannot be permitted to represent a class. China Agritech According to Magistrate Judge Porcelli, the Court recognizes that some courts considering China Agritech rejected the notions that China Agritech can be distinguished based on whether class certification was decided in an earlier-filed action or on whether the earlier action remained pending at the time of filing the subsequent action, while other courts accepted such notions. In this instance, the Court does not deem it necessary to determine whether either factor distinguishes this case from China Agritech because the main distinguishing and determinative factor in this case rests upon BLP's waiver of its statute of limitations defense. As with the China Agritech plaintiffs, TTA Plaintiffs would not have a substantive right to bring their claims outside of the statute of limitations; instead, they could only bring such claims due to the judicially crafted tolling rule. Had TTA Plaintiffs sought to establish class claims based on a theory of equitable tolling, this Court might swiftly dismiss those class claims under China Agritech. Yet, that is not the case, he said. Here, BLP unequivocally waived the statute of limitations defense as to TTA Plaintiffs and all other class members, which, according to BLP and TTA Plaintiffs, opened the door for TTA Plaintiffs to assert class claims that would otherwise be precluded. The Court, therefore, confronts an issue neither before the Court in China Agritech nor addressed by any courts subsequently considering China Agritech. Instead, the question presented before this Court involves whether BLP's unequivocal waiver of any assertion of a statute of limitations defense provides an avenue for TTA Plaintiffs to bring class claims in this action. The Court finds that, as a general proposition, it does. To reiterate what the Court previously articulated, in the Settlement Agreement, BLP explicitly waived its affirmative defense regarding the statute of limitations, with such waiver surviving in the event of termination of the Settlement Agreement. Such a waiver removes the issue of the statute of limitations from the controversy. Indeed, the Federal Rules of Civil Procedure, as well as numerous courts, indicate that the statute of limitations constitutes an affirmative defense that a party may waive. Importantly, the statute of limitations governing TCPA claims is not found within the text of the TCPA. Instead, courts apply the four-year catchall statute of limitations provided under 28 U.S.C. Section 1658(a), which states: Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues. Neither the text nor the context of such time prescription, located in a separate, catchall statute, indicates that the statute of limitations operates as jurisdictional bar to suit. Accordingly, the four-year statute of limitations related to TCPA claims acts only as a procedural limit or an affirmative defense subject to waiver. As noted, BLP presents no opposition to TTA Plaintiffs bringing their claims outside of the statute of limitations and, again, explicitly waived such defense as to all class members, regardless of the approval of the Settlement Agreement. China Agritech remains silent as to waiver by a defendant. Indeed, while China Agritech expresses a preference for early assertion of competing class claims and diligence by a plaintiff in pursuing class claims, the Court finds nothing in China Agritech or any case interpreting China Agritech that would prohibit a defendant from waiving the statute of limitations defense or allowing time-barred claims to proceed based on such waiver, especially where the plaintiff does not seek to rely on equitable tolling as a basis for asserting any claims. Although the Court appreciates Cin-Q Plaintiffs' arguments to the contrary, the Court does not read China Agritech to prohibit a defendant from waiving its statute of limitations defense or allowing a plaintiff to bring class claims on that basis, Magistrate Judge Porcelli concluded. The Eleventh Circuit Appeal Notwithstanding the foregoing, just because a defendant may waive its statute of limitations defense, allowing a plaintiff to bring class claims on that basis under China Agritech, does not mean that TTA Plaintiffs could bring the class claims in this action. In fact, quite the opposite. Given the findings set forth in the Eleventh Circuit Appeal, the waiver of the statute of limitations defense provides the downfall of the class claims in this instance, the Court held. Though the Eleventh Circuit addressed only the issue of adequacy for purposes of Rule 24(a)(2), the findings the Eleventh Circuit set forth in rendering its decision provide this Court with guidance in considering Rule 23(a), even given the differing standards and the expanded record in this action, wrote Magistrate Judge Porcelli in his ruling. The adequacy-of-representation requirement under Rule 23 requires the representative party in a class action to fairly and adequately protect the interests of those he or she purports to represent. Rule 23(a)(4)'s adequacy inquiry serves to uncover conflicts of interest between named parties and the class they seek to represent. The Court finds that the record reveals that the interests of TTA Plaintiffs were in substantial conflict with those of Cin-Q Plaintiffs and, thus, the rest of the putative class. Basically, unlike TTA Plaintiffs, Cin-Q Plaintiffs and the other putative class members in the Cin-Q Action "have no statute of limitations issue." Indeed, the Eleventh Circuit specifically addressed the issue in its decision, stating: "Although the parties fiercely contest whether the plaintiffs' claims are actually time barred, the risk that they could be gives the plaintiffs a greater incentive to settle as compared to the movants." The Court finds the Eleventh Circuit's observation instructive since TTA Plaintiffs in fact admit that they were aware of the statute of limitations issue from the outset of the settlement negotiations with BLP. The fact that BLP and TTA Plaintiffs did not address the issue of the waiver of the statute of limitations until late in their settlement negotiations does not change the analysis. Namely, the timing of the actual waiver by BLP does not bear on the issue, since the issue was present from the outset. Put simply, but for the timely initiation of the Cin-Q Action, BLP would have no reason to waive the statute of limitations defense to settle potential class claims with plaintiffs whose claims expired. By the same token, but for obtaining a statute of limitations waiver, TTA Plaintiffs would not maintain the ability to bring class claims outside of the Cin-Q Action. Given the unavailability of the separate class action option without a waiver of the statute of limitations, the interests of TTA Plaintiffs and BLP were aligned. Even on the limited record on appeal, the Eleventh Circuit indicated that "[i]t is plain from the record that during the negotiations the interests of the named plaintiffs and of Bock Hatch were aligned with those of Buccaneers and adverse to the movants' interests." As the record in this action and in the Cin-Q Action indicate, TTA Plaintiffs and BLP endeavored to settle the class claims against the backdrop of the breakdown of the settlement negotiations in the Cin-Q Action and the impending deadline for BLP to respond to Cin-Q Plaintiffs' motion for class certification. BLP expressed frustration with the settlement process with Cin-Q Plaintiffs and thus sought the Court's assistance in conducting a settlement conference given concerns BLP held with the position taken by Cin-Q Plaintiffs in the prior settlement negotiations. At the same time, as the Eleventh Circuit noted, e-mails indicated that TTA Plaintiffs' Counsel engaged in a "Machiavellian" plan to undercut Cin-Q Plaintiffs negotiating position. Indeed, TTA Plaintiffs' Counsel did not approach BLP about the filing of a new case regarding the same class claims until after the parties reached an impasse in the Cin-Q Action, a fact that TTA Plaintiffs' Counsel was aware of at the time they approached BLP. Given that backdrop, both TTA Plaintiffs and BLP possessed aligning incentives to settle outside the purview of the Cin-Q Action or, at the very least, Cin-Q Plaintiffs. As a result, the interests of TTA Plaintiffs remained antagonistic to and in substantial conflict with Cin-Q Plaintiffs and the rest of the putative class in the Cin-Q Action, meaning TTA Plaintiffs cannot adequately represent the class under Rule 23(a)(4). Contrary to BLP's argument, this finding does not prioritize form over substance. Understandably, from BLP's perspective, the issues relating to the class claims have been resolved and no need exists to disturb such resolution. To that end, TTA Plaintiffs and BLP argue that TTA Plaintiffs could have intervened in the Cin-Q Action, but chose not to do so, and requiring them to do so now would prove an exercise in futility. Had TTA Plaintiffs and BLP determined that intervention in the Cin-Q Action provided the proper means for getting the Settlement before the Court, the issues might have been resolved or at least addressed much differently. As it stands, however, the parties did not. Instead, they proceeded in a separate action, and the Eleventh Circuit subsequently provided its interpretation of the facts, which now guides this Court in its decision. "Given the change in the procedural landscape after the Eleventh Circuit issued its decision, therefore, this Court finds no basis to allow the class claims to proceed in this action. Furthermore, the Court need not address the adequacy of Cin-Q Plaintiffs or their Counsel nor the viability of a class action in the Cin-Q Action, as neither issue affects the outcome here," rules Magistrate Judge Porcelli. Accordingly, Magistrate Judge Porcelli concluded that: -- The Preliminary Approval Order is VACATED. -- The Settlement Class is DECERTIFIED. -- TTA Plaintiffs' class claims in this action are STRICKEN. This matter is STAYED pending a status conference. The Court directed the parties to meet and confer to determine dates and times when all parties can attend an in-person status conference. TTA Plaintiffs' Counsel shall then contact the Court at (813) 301-5541 to provide the proposed dates and times, after which the status conference will be scheduled by separate notice. A full-text copy of the District Court's September 30, 2019 Order is available at https://tinyurl.com/y43k2hda from Leagle.com. Technology Training Associates, Inc. & Larry E. Schwanke, D.C., individually and as the representative of a class of similarly-situated persons, Plaintiffs, represented by Daniel J. Cohen , Bock Hatch Lewis & Oppenheim LLC, pro hac vice, Jonathan B. Piper , Bock Law Firm, LLC, pro hac vice & Phillip A. Bock , Bock Hatch Lewis & Oppenheim LLC, 134 North La Salle Street Suite 1000 Chicago, IL 60602 Buccaneers Limited Partnership, Defendant, represented by Joseph H. Varner, III - joe.varner@hklaw.com - Holland & Knight, LLP, Kathleen P. Lally - kathleen.lally@lw.com - Latham & Watkins, LLP, pro hac vice & Mark S. Mester - mark.mester@lw.com - Latham & Watkins, LLP, pro hac vice. Cin-Q Automobiles, Inc. & Medical & Chiropractic Clinic, Inc., Intervenors, represented by Glenn L. Hara - ghara@andersonwanca.com - Anderson & Wanca, pro hac vice, Michael C. Addison - m@mcalaw.net - Addison Law Office, P.A., Ross Michael Good - rgood@andersonwanca.com - Anderson & Wanca & Ryan M. Kelly - rkelly@andersonwanca.com - Anderson & Wanca. C. TECH COLLECTIONS: Engeman Files FDCPA Class Action in New York ----------------------------------------------------------------- A class action lawsuit has been filed against C. Tech Collections, Inc. The case is styled as Robert G. Engeman, individually and on behalf of all others similarly situated, Plaintiff v. C. Tech Collections, Inc., Defendant, Case No. 2:19-cv-05710 (E.D. N.Y., Oct. 9, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. C. Tech Collections, Inc. is debt collection agency in Mount Sinai, New York.[BN] The Plaintiff is represented by: David M. Barshay, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Email: dbarshay@barshaysanders.com - and - Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com CAMBREX CORPORATION: Thompson Challenges Sale to Catalog --------------------------------------------------------- JOHN THOMPSON, Individually and On Behalf of All Others Similarly Situated, Plaintiff v. CAMBREX CORPORATION, GREGORY B. BROWN, CLAES GLASSELL, LOUIS J. GRABOWSKY, BERNARD HAMPL, KATHRYN RUDIE HARRIGAN, ILAN KAUFTHAL, STEVEN M. KLOSK, and SHLOMO YANAI, Defendants, Case No. 1:19-cv-01793-UNA (D. Del., Sept. 24, 2019) stems from a proposed transaction pursuant to which Cambrex will be acquired by Catalog Intermediate Inc. and Catalog Merger Sub Inc., which are controlled by investment funds advised by Permira Advisers LLC. On August 7, 2019, Cambrex's Board of Directors caused the Company to enter into an agreement and plan of merger with Permira. Pursuant to the terms of the Merger Agreement, Cambrex's stockholders will receive $60.00 in cash for each share of Cambrex common stock they own. On September 23, 2019, the Defendants filed a proxy statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction, which scheduled a stockholder vote on the Proposed Transaction for October 23, 2019. The complaint notes that, first, the Proxy Statement omits material information regarding the Company's financial projections. The Proxy Statement fails to disclose, for each set of projections: (i) all line items used to calculate Adjusted EBITDA; (ii) all line items used to calculate unlevered free cash flow; and (iii) a reconciliation of all non-GAAP to GAAP metrics. Second, the Proxy Statement omits material information regarding the analyses performed by the Company's financial advisor in connection with the Proposed Transaction, Morgan Stanley & Co. LLC. With respect to Morgan Stanley's Precedent Premiums Paid Analysis, the Proxy Statement fails to disclose: (i) the transactions observed by Morgan Stanley in the analysis; and (ii) the premiums paid in the transactions. Third, the Proxy Statement omits material information regarding potential conflicts of interest of Morgan Stanley. The Proxy Statement fails to disclose the timing and nature of the past services Morgan Stanley provided to Permira and its affiliates. Fourth, the Proxy Statement fails to disclose whether the Company entered into any confidentiality agreements that contained standstill and/or "don't ask, don't waive" provisions that are or were preventing the counterparties from submitting superior offers to acquire the Company. Without this information, stockholders may have the mistaken belief that, if these potentially interested parties wished to come forward with a superior offer, they are or were permitted to do so, when in fact they are or were contractually prohibited from doing so, says the complaint. Accordingly, the Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading, the Plaintiff alleges. The Plaintiff contends that the Defendants violated Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 in connection with the Proxy Statement. The Plaintiff is the owner of Cambrex common stock. Cambrex is a small molecule company that provides drug substance, drug product, and analytical services across the entire drug lifecycle.[BN] The Plaintiff is represented by: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com CANNTRUST HOLDINGS: Owens Suit over Share Price Drop Underway ------------------------------------------------------------- RYAN OWENS, individually and on behalf of all others similarly situated, the Plaintiff, vs. CANNTRUST HOLDINGS INC., PETER ACETO, GREG GUY ATT, ERIC PAUL, MERRILL LYNCH, PIERCE, FENNER & SMITH INC., CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC, RBC DOMINION SECURITIES INC., JEFFERIES LLC, and CANACCORD GENUITY LLC, the Defendants, Case No. 19CV352374 (Cal. Super., Aug. 5, 2019), alleges that Defendants violated the Securities Act of 1933. The Plaintiff brings this action on his own behalf and on behalf of all those who purchased or otherwise acquired Cann Trust common stock pursuant or traceable to the offering materials issued in connection with the company's 2019 offering (the "offering"), including the registration statement, the prospectus, and various prospectus supplements. CannTrust is a producer and distributor of medical and recreational cannabis. Cann Trust's common stock was traded over the counter until February 25, 2019, when it became listed on the NYSE under the ticker symbol "CTST." After its listing on the NYSE, the Company conducted a share offering in which it registered new shares of common stock that it issued to investors, including Plaintiff and members of the class. The Company registered approximately $531 million in new shares, warrants, and debt securities under a registration statement that was issued March 1 (and included a short form prospectus), amended March 18, and became effective on March 19, 2019. On April 22, 2019, the Company issued a preliminary prospectus supplement. On May 3, 2019, CannTrust amended and finalized the prospectus supplement to qualify the distribution of 36,363,636 common shares at a price of $5.50 per common share. Together, these materials are referred to as the "offering materials." The cannabis industry is regulated, both in Canada and in the United States. One requirement under Canadian law is that cannabis growing facilities be licensed by Health Canada-the Canadian regulator responsible for oversight of the cannabis industry. Unbeknownst to investors like Plaintiff, Cann Trust lacked the required licenses for some of its main growing facilities in Canada, and was producing cannabis in these unlicensed facilities, a fact that the Company misrepresented and failed to disclose to investors in its offering materials. On July 8, 2019, CannTrust disclosed that Health Canada had found that Cann Trust's operation of its greenhouse facility in Pelham, Ontario, violated governing regulations. Specifically, Health Canada issued a report on July 3 concluding that the Company had been growing cannabis in five unlicensed rooms at its Niagara campus in Pelham, Ontario, between October 2018 and March 2019. As a result, Health Canada placed an inventory hold on approximately 5,200 kilograms of dried cannabis harvested from the unlicensed facility, and CannTrust agreed to place a voluntary inventory hold on an additional 7,500 kilograms of cannabis. CannTrust was unable to sell the held inventory and is subject to significant inventory holding costs. On July 8, 2019, following news of Cann Trust's licensing violations, the company's stock price fell $1.11, more than 22%, to close at $3.83 per share, the lawsuit says. * * * A case management conference is scheduled in the case for Nov. 15, 2019, at 10 a.m.[BN] Attorneys for the Plaintiff are: Dena C. Sharp, Esq. Adame Polk, Esq. GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dsharp@girardsharp.com apolk@girardsharp.com - and - Eric H. Gibbs, Esq. David Stein, Esq. GIBBS LAW GROUP LLP 11505 14th Street, Suite 110 Oakland, CA 94612 Telephone: (510) 350-9700 Facsimile: (510) 350-9701 E-mail: ehg@classlawgroup.com ds@classlawgroup.com CAPSTONE RESTAURANT: Keefover Files Class Suit under ADA -------------------------------------------------------- Capstone Restaurant Group, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Alexander Keefover, individually and on behalf of all other persons similarly situated, Plaintiff v. Capstone Restaurant Group, LLC and Lund Brown Enterprises, LLC, Defendants, Case No. 1:19-cv-00188-TSK (N.D. W.V., Oct. 2, 2019). Capstone Restaurant Group is a collection of affiliated companies that operates and franchises almost 300 restaurants in 16 states through a variety of brands.[BN] The Plaintiff is represented by: James A. Kirby , III, Esq. Goodwin & Goodwin, LLP 300 Summers Street, Ste. 1500 PO Box 2107 Charleston, WV 25328-2107 Tel: (304) 346-7000 Fax: (304) 344-9692 Email: jak@goodwingoodwin.com - and - Benjamin J. Sweet Esq. The Sweet Law Firm, PC 186 Mohawk Drive Pittsburgh, PA 15228 Tel: (412) 742-0631 Email: ben@sweetlawpc.com - and - Holly Blackwell, Esq. Nye Stirling Hale & Miller LLP 33 West Misson Ste., #201 Santa Barbara, CA 93101 Tel: (805) 963-2345 - and - Jonathan D. Miller, Esq. Nye Stirling Hale & Miller LLP 33 West Misson Ste., #201 Santa Barbara, CA 93101 Tel: (805) 963-2345 Email: Jonathan@nshmlaw.com - and - Timothy C. Hale, Esq. Nye Stirling Hale & Miller LLP 33 West Misson Ste., #201 Santa Barbara, CA 93101 Tel: (805) 963-2345 CENTRA TECH: Rensel Renews Bid to Certify CTR Token Buyers Class ---------------------------------------------------------------- In the lawsuit entitled JACOB ZOWIE THOMAS RENSEL, WANG YUN HE, CHI HAO POON, KING FUNG POON, JAE J. LEE, MATEUSZ GANCZAREK, and RODNEY WARREN, individually and on behalf of all others similarly situated v. CENTRA TECH, INC., SOHRAB SHARMA, ROBERT FARKAS, RAYMOND TRAPANI, STEVEN STANLEY, STEVEN SYKES, ALLAN SHUTT, CHASE ZIMMERMAN, FLOYD MAYWEATHER JR., AND KHALED MOHAMED KHALED A/K/A DJ KHALED, Case No. 1:17-cv-24500-RNS (S.D. Fla.), the Plaintiffs filed their renewed motion for class certification. The Plaintiffs also ask the Court to appoint them as Class Representatives and to appoint Levi & Korsinsky, LLP and Taylor-Copeland Law as Class Counsel. The Plaintiffs previously moved to certify this securities class action against Defendant Centra Tech, Inc. on June 13, 2019 (the "First Motion"). On September 17, 2019, the Court issued its Order denying Plaintiffs' First Motion (the "Denial Order"). The Denial Order denied Plaintiffs' Motion on two grounds. First, the Court determined that denial of the Motion was warranted because "Plaintiffs' motion for class certification [wa]s untimely" and "offer[ed] no excuse or justification for this delay . . .." Second, the Court denied certification upon a finding that the Plaintiffs had "failed to meet their burden of demonstrating that the proposed classes are ascertainable." In this Renewed Motion, the Plaintiffs provide such justification, and explain the timing of events as they have occurred. The Plaintiffs contend that they have been limited in their ability to pursue discovery or other relief in this Action because of the automatic stay of discovery and other proceedings provided for under the Private Securities Litigation Reform Act of 1995. The Plaintiffs add that because the Court did not otherwise set a deadline for filing a motion for class certification, there were no deadlines under which a class certification motion could be untimely. The Plaintiffs now seek certification of this revised proposed definition of the "Class": All persons or entities who purchased or otherwise acquired Centra Tech Tokens ("CTR Tokens") directly from Defendant Centra Tech in connection with its "official" initial coin offering from July 23, 2017 through October 5, 2017 ("Class Period"). Excluded from the Class are: (i) defendant Centra Tech; (ii) any person who was an officer, director or employee of Centra Tech, Inc.; (iii) any immediate family member of any excluded person; (iv) any firm, trust, corporation or other entity in which any excluded person or entity has or had a controlling interest; and (v) the legal representatives, affiliates, heirs, successors in-interest, or assigns of any such excluded person or entity.[CC] The Plaintiffs are represented by: Emily Komlossy, Esq. KOMLOSSY LAW P.A. 4700 Sheridan St., Suite J Hollywood, FL 33021 Telephone: (954) 842-2021 Facsimile: (954) 416-6223 E-mail: eck@komlossylaw.com - and - Eduard Korsinsky, Esq. LEVI & KORSINSKY, LLP 30 Broad Street, 24th Floor New York, NY 10004 Telephone: (212) 363-7500 Facsimile: (212) 636-7171 E-mail: ek@zlk.com - and - Donald J. Enright, Esq. Elizabeth K. Tripodi, Esq. John A. Carriel, Esq. LEVI & KORSINSKY, LLP 1101 30th Street, N.W., Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 Facsimile: (202) 333-2121 E-mail: denright@zlk.com etripodi@zlk.com jcarriel@zlk.com - and - James Taylor-Copeland, Esq. TAYLOR-COPELAND LAW 501 W. Broadway, Suite 800 San Diego, CA 92101 Telephone: (619) 400-4944 E-mail: james@taylorcopelandlaw.com CERTIFIED CREDIT: Hughes Asserts Breach of FDCPA in New Jersey -------------------------------------------------------------- A class action lawsuit has been filed against Certified Credit & Collection Bureau. The case is styled as Milena M. Hughes, on behalf of herself and those similarly situated, Plaintiff v. Certified Credit & Collection Bureau, Joanne M. Possumato, Diana M. Schobel and John Does 1 to 10, Defendants, Case No. 3:19-cv-18819-MAS-TJB (D. N.J., Oct. 8, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Certified Credit & Collection Bureau is a Debt collection agency in Branchburg Township, New Jersey.[BN] The Plaintiff is represented by: Yongmoon Kim, Esq. Kim Law Firm LLC 411 Hackensack Ave Ste 701 Hackensack, NJ 07601 Tel: (201) 273-7117 Fax: (201) 273-7117 Email: ykim@kimlf.com CONAGRA BRANDS: Negrete Class Action Still Ongoing -------------------------------------------------- Conagra Brands, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 1, 2019, for the quarterly period ended August 25, 2019, that the company continues to defend a consolidated class action suit entitled, Negrete v. ConAgra Foods, Inc., et al. The company is a party to matters challenging the Company's wage and hour practices. These matters include a number of class actions consolidated under the caption Negrete v. ConAgra Foods, Inc., et al, pending in the U.S. District Court for the Central District of California, in which the plaintiffs allege a pattern of violations of California and/or federal law at several current and former Company manufacturing facilities across the State of California. Conagra Brands said, "While we cannot predict with certainty the results of this or any other legal proceeding, we do not expect this matter to have a material adverse effect on our financial condition, results of operations, or business." No further updates were provided in the Company's SEC report. Conagra Brands, Inc., together with its subsidiaries, operates as a food company in North America. The company operates through Grocery & Snacks, Refrigerated & Frozen, International, and Foodservice segments. The company was formerly known as ConAgra Foods, Inc. and changed its name to Conagra Brands, Inc. in November 2016. Conagra Brands, Inc. was founded in 1919 and is headquartered in Chicago, Illinois. CONAGRA BRANDS: Settlement in Briseno Wins Preliminary Approval --------------------------------------------------------------- Conagra Brands, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 1, 2019, for the quarterly period ended August 25, 2019, that the trial court in Briseno v. ConAgra Foods, Inc., granted preliminary approval of the parties' settlement. The company is a party to a number of putative class action lawsuits challenging various product claims made in the Company's product labeling. These matters include Briseno v. ConAgra Foods, Inc. in which it is alleged that the labeling for Wesson(R) oils as 100% natural is false and misleading because the oils contain genetically modified plants and organisms. In February 2015, the U.S. District Court for the Central District of California granted class certification to permit plaintiffs to pursue state law claims. The Company appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed class certification in January 2017. The Supreme Court of the United States declined to review the decision and the case has been remanded to the trial court for further proceedings. On April 4, 2019, the trial court granted preliminary approval of a settlement in this matter. No further updates were provided in the Company's SEC report. Conagra Brands, Inc., together with its subsidiaries, operates as a food company in North America. The company operates through Grocery & Snacks, Refrigerated & Frozen, International, and Foodservice segments. The company was formerly known as ConAgra Foods, Inc. and changed its name to Conagra Brands, Inc. in November 2016. Conagra Brands, Inc. was founded in 1919 and is headquartered in Chicago, Illinois. CONAGRA BRANDS: West Palm Beach Firefighters' Suit Ongoing ---------------------------------------------------------- Conagra Brands, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 1, 2019, for the quarterly period ended August 25, 2019, that the company continues to defend a class action suit entitled, est Palm Beach Firefighters' Pension Fund v. Conagra Brands, Inc., et al. The Company, its directors, and several of its executive officers are defendants in several class actions alleging violations of federal securities laws. The lawsuits assert that the Company's officers made material misstatements and omissions that caused the market to have an unrealistically positive assessment of the Company's financial prospects in light of the acquisition of Pinnacle Foods Inc. (Pinnacle), thus causing the Company's securities to be overvalued prior to the release of the Company's consolidated financial results on December 20, 2018 for the second quarter of fiscal year 2019. The first of these lawsuits, captioned West Palm Beach Firefighters' Pension Fund v. Conagra Brands, Inc., et al., with which subsequent lawsuits alleging similar facts have been consolidated, was filed February 22, 2019 in the U.S. District Court for the Northern District of Illinois. In addition, on May 9, 2019, a shareholder filed a derivative action on behalf of the Company against the Company's directors captioned Klein v. Arora, et al. in the U.S. District Court for the Northern District of Illinois asserting harm to the Company due to alleged breaches of fiduciary duty and mismanagement in connection with the Pinnacle acquisition. On July 9, 2019 and September 20, 2019, the Company received two separate demands from stockholders under Delaware law to inspect the Company's books and records related to the Board of Directors' review of the Pinnacle business, acquisition, and the Company's public statements related to them. On July 22, 2019 and August 6, 2019, respectively, two additional shareholder derivative lawsuits captioned Opperman v. Connolly, et al. and Dahl v. Connolly, et al. were filed in the U.S. District Court for the Northern District of Illinois asserting similar facts and claims as the Klein v. Arora, et al. matter. Conagra Brands said, "While we cannot predict with certainty the results of these or any other legal proceedings, we do not expect these matters to have a material adverse effect on our financial condition, results of operations, or business." Conagra Brands, Inc., together with its subsidiaries, operates as a food company in North America. The company operates through Grocery & Snacks, Refrigerated & Frozen, International, and Foodservice segments. The company was formerly known as ConAgra Foods, Inc. and changed its name to Conagra Brands, Inc. in November 2016. Conagra Brands, Inc. was founded in 1919 and is headquartered in Chicago, Illinois. CONOPCO INC: Crepps Fraud Class Action Transferred to E. D. Mo. --------------------------------------------------------------- The case captioned as Dan Crepps, individually and on behalf of all others similarly situated, Plaintiff v. Conopco, Inc. doing business as: Unilever and Does 1 through 10, Defendants, Case No. 19JE-CC0489, was transferred from the 23rd Judicial Circuit - Jefferson County to the U.S. District Court for the Eastern District of Missouri (St. Louis) on October 8, 2019, and assigned Case No. 4:19-cv-02726. The docket of the case states the nature of suit as Other Fraud. Conopco Inc. Conopco, Inc., doing business as Unilever, provides personal care products. The Company offers perfumes, soaps, and shampoos, as well as food products.[BN] The Plaintiff appears PRO SE. The Defendant is represented by: James Muehlberger, Esq. SHOOK AND HARDY, LLP 2555 Grand Blvd. Kansas City, MO 64108 Tel: (816) 474-6550 Fax: (816) 421-5547 Email: jmuehlberger@shb.com CONOPCO INC: Richards Fraud Class Suit Transferred to E. D. Mo. --------------------------------------------------------------- The case captioned as Jamie Richards, individually and on behalf of all others similarly situated, Plaintiff v. Conopco, Inc. doing business as: Unilever and Does 1 through 10, Defendants, Case No. 1922-CC10814, was transferred from the Circuit Court of St. Louis City to the U.S. District Court for the Eastern District of Missouri (St. Louis) on October 8, 2019, and assigned Case No. 4:19-cv-02726. The docket of the case states the nature of suit as Other Fraud. Conopco Inc. Conopco, Inc., doing business as Unilever, provides personal care products. The Company offers perfumes, soaps, and shampoos, as well as food products.[BN] The Plaintiff appears PRO SE. The Defendant is represented by: James Muehlberger, Esq. SHOOK AND HARDY, LLP 2555 Grand Blvd. Kansas City, MO 64108 Tel: (816) 474-6550 Fax: (816) 421-5547 Email: jmuehlberger@shb.com CONTINENTAL GENERAL: Wins Final OK of $1.25-M Deal in Fastrich Case ------------------------------------------------------------------- The Hon. Michael R. Barrett enters an order granting final approval to the Stipulation and Agreement of Settlement between Plaintiffs and Defendants in the lawsuit entitled JOHN FASTRICH and UNIVERSAL INVESTMENT SERVICES, INC. and REGINALD J. GOOD D/B/A REGINALD J. GOOD AGENCY v. CONTINENTAL GENERAL INSURANCE COMPANY, GREAT AMERICAN FINANCIAL RESOURCE, INC., AMERICAN FINANCIAL GROUP, INC., LOYAL AMERICAN LIFE INSURANCE COMPANY, and AMERICAN RETIREMENT LIFE INSURANCE COMPANY, Case No. 1:17-cv-00615-MRB (S.D. Ohio). The Settlement Agreement provides that, in exchange for the release described in the Settlement Agreement and this Settlement Order, the Defendants will pay $1,250,000 by wire transfer the Settlement Amount into an escrow account, which will be established at a bank by Class Counsel. The Settlement Amount will be allocated as set forth in the Allocation Plan. For settlement purposes only, the Court certifies the Settlement Class defined as: all persons or entities that, from October 25, 2011 through the Effective Date of the Settlement Agreement, lost or otherwise were not paid commissions that were or would have been payable on, or attributable to, insurance policies or products issued or sold by the Defendants or Releasees as a result of Defendants or their affiliates': (1) failing to pay Commissions on premiums paid by policyholders due to premium rate increases on long-term care insurance policies; (2) failing to properly calculate and/or pay Commissions in accordance with the vesting provisions of any agreement(s) with any Defendants; or (3) replacing any person or entity as the agent of record in connection with a sale of any insurance policy; provided, however, that Settlement Class or Class Members shall not include: (i) persons or entities that previously released any of the Claims raised in the Nebraska Action or the Producer Class Action; (ii) Defendants; or (iii) Releasees. Also excluded from the Settlement Class are the persons and/or entities who request exclusion from the Settlement Class within the time period set by this Order. The Court confirms the appointment of Plaintiffs John Fastrich, Universal Investment Services, Inc., and Reginald J. Good D/B/A Reginald J. Good Agency as the Settlement Class Representatives. The Notice and the Claim Form are finally approved as fair, reasonable, and adequate. The Allocation Plan is approved as fair and reasonable, and in the best interests of the Class, and Class Counsel and Strategic Claims Services are directed to administer the Settlement Agreement in accordance with its terms and provisions. Strategic Claims Services shall discharge all aspects of notice and other settlement administration in accordance with the Settlement Agreement. The Parties are authorized without further approval from the Court to agree upon such amendments or modifications of the Settlement Agreement and all exhibits thereto as shall be consistent in all respects with this Settlement Order and do not limit the rights of the Class Members. The Complaint is dismissed with prejudice against the Defendants, their past or present subsidiaries, parents, affiliates, and others. The action is dismissed with prejudice. An appeal of the Order, which awards attorneys' fees, expenses, and/or service awards, shall have no effect whatsoever on the finality of any other portion of this Order, the Final Judgment or the Effective Date of the Settlement as provided in the Settlement Agreement. Class Members appealing this Order or any portion thereof, must first timely intervene pursuant to the Federal Rules of Civil Procedure. Without further order of the court, the parties may agree to reasonable extensions of time to carry out any of the provisions of the Settlement Agreement.[CC] CORELLE BRANDS: Ct Narrows Claims in Consolidated Pyrex Defect Case ------------------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division issued a Memorandum Opinion and Order granting in part and denying in part Defendants' Motion to Dismiss in the case captioned TRICIA FULLERTON, et al., Plaintiffs, v. CORELLE BRANDS, LLC (previously d/b/a World Kitchen, LLC), et al., Defendants, and MARCIA SCHUTTE, et al., Plaintiffs, v. CORELLE BRANDS, LLC (previously d/b/a World Kitchen, LLC), et al., Defendants, Case Nos. 18-cv-4152, 18-cv-4198 (N.D. Ill.). Defendants move to dismiss Plaintiffs' claims under Federal Rule of Civil Procedure 12(b)(6). This consolidated class action involves seven plaintiffs from six different states suing Defendants Corelle Brands LLC, f/k/a World Kitchen, LLC, and Corelle Brands Holdings Inc., f/k/a WKI Holding Company, Inc. (Corelle) for various claims arising from the allegedly defective manufacturing of Pyrex glassware. Plaintiffs allege that the tempering process: (1) increases the risk of breakage when consumers use the Product over time (2) causes the glass to shatter rather than dicing into safer, small pieces when it breaks and (3) increases the risk that broken glass will fly through the air due to the process' creation of internal tension in the glass. Legal Standard Motion to Dismiss—Rule 12(b)(6) Defendants seeks to dismiss the Complaint for failure to state a claim under Rule 12(b)(6). To survive Defendants' motion under Rule 12(b)(6), the Complaint must state a claim to relief that is plausible on its face. For a claim to have facial plausibility, a plaintiff must plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The amount of factual allegations required to state a plausible claim for relief depends on the complexity of the case, but threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Standing Standing requires, among other things, that the plaintiff suffered an injury in fact. With this background in mind, this Court turns to whether Plaintiffs Simon and Fullerton possess standing to assert their claims. Both individuals base their claims upon the failure to receive the benefit of the bargain. In other words, Plaintiffs seek damages meant to give them the benefit they expected to receive from the contract they made with Defendants. Consequently, this Court dismisses all of Plaintiffs Simon's and Fullerton's claims without prejudice. Additionally, because Plaintiff Simon is the only class representative asserting claims based upon Michigan law, Plaintiffs' claims asserting violations of Michigan law are dismissed because the putative class claims cannot proceed without a class representative, this claim cannot proceed. Express Warranty Claims Plaintiffs allege Defendants sold the Products with several express warranties attached. Defendants contest the existence of some express warranties, challenge that they did not breach others, and argue that Plaintiffs failed to state a claim for some of their express warranty allegations. Under New York, Illinois, Florida, Ohio, and Massachusetts law, an express warranty includes any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain or any description of the goods which is made part of the basis of the bargain. Viewed in the light most favorable to Plaintiffs, Defendants' representations that the Products as currently manufactured are high-quality, versatile, and safe to use in a variety of settings including high temperatures and sudden heat changes could constitute an affirmation of fact or promise and/or a description of the goods that is part of the basis of bargain. Therefore, Plaintiffs sufficiently allege breach of express warranty beyond the Limited Warranty. Timeliness of Plaintiffs' New York and Massachusetts Express Warranty Claims (Counts 2 and 7) Under New York and Massachusetts law, warranty claims must be asserted within four years after the cause of action accrued. Plaintiffs Slepian and Klein purchased the relevant Pyrex products more than four years ago. For that reason, Plaintiffs fail to allege that they timely asserted their claims. Instead they argue Defendants' actions tolled the statute of limitations, because Defendants allegedly concealed the "true character, nature, and quality of soda lime Pyrex. Yet Defendants expressly disclosed on the Limited Warranty and safety instructions that accompany all Pyrex products that Defendants' Pyrex may shatter when exposed to a sudden change in temperature. And, as Plaintiffs also note in their Complaint, public documents, which Plaintiffs could have discovered with reasonable diligence, detail that Pyrex made from soda lime glass remained more susceptible to shattering when exposed to sudden temperature changes. Accordingly, this Court dismisses Plaintiffs Slepian's and Klein's breach of express warranty claims under New York and Massachusetts law as untimely. Florida Express Warranty Claims (Count 3) Defendants' argue that Plaintiff Grau's Florida express warranty claim fails to allege a specific representation that she relied upon when purchasing the Products as required to state a claim under Florida law. Although the Florida Uniform Sales Act casts doubt on whether reliance remains an element of a claim for breach of express warranty, Florida courts continue to treat reliance as an essential element of a breach of express warranty claim. Therefore, this Court treats reliance as an element of the claim under Florida law. Plaintiff Grau, however, has not alleged what representations Defendants made that she relied upon when purchasing her Pyrex. Without alleging reliance, Plaintiff Grau fails to sufficiently allege a claim for breach of express warranty under Florida law. As such, this Court grants without prejudice Defendants' motion to dismiss her claim. Ohio Express Warranty Claim (Count 6) Defendants next argue that Plaintiff Schutte's express warranty claims are deficient because she failed to allege how she gave Defendants notice prior to filing suit. Under Ohio law, the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy. Plaintiff Schutte concedes she did not provide Defendants pre-suit notice. Rather, she argues that no notice obligation exists because Defendants already knew of the defect and, thus, they already knew they were in breach. But, even if Defendants have independent knowledge of their breach, a plaintiff must still provide pre-litigation notice.Ohio law imposes this requirement not only to inform the defendant of the breach, but also to provide the parties an opportunity to resolve their claims and avoid litigation altogether by curing the defect. Defendants' motion to dismiss Plaintiff Schutte's express warranty claims is granted with prejudice. Breach of the Limited Warranty for Plaintiffs' Illinois Claim (Count 5) As to Plaintiff Cashmore's breach of the Limited Warranty claim, Defendants argue her claim should be dismissed for her failure to fulfill her obligations under the Limited Warranty, which required her to request a replacement. Plaintiff Cashmore, however, counters that the Limited Warranty's sole remedy to replace the Products with new Pyrex also made from soda lime glass fails its essential purpose and/or is unconscionable because the new Product will suffer from the same latent defect. Under Illinois law, a warranty term may be unenforceable when the warranty is unconscionable. If the warranty term is unenforceable, then compliance with that term is unnecessary. In this case, Plaintiff Cashmore alleged that the Products contain a latent defect that Defendants knew of when they sold the Products. As such, Plaintiff Cashmore has sufficiently stated a claim for procedural unconscionability thus making the Limited Warranty's terms unenforceable. Therefore, Plaintiff Cashmore's allegations remain sufficient to sustain a breach of contract claim under the Limited Warranty, even though she did not request a replacement. Implied Warranty Claims Plaintiffs also allege violations of various implied warranty laws. They allege that the Products are not fit for use as versatile bakeware. Defendants present multiple arguments as to why Plaintiffs' implied warranty claims should be dismissed. First, they argue that all of Plaintiffs' claims should be summarily dismissed because they fail to allege the Products do not perform as reasonably expected. In this case, though, Plaintiffs sufficiently alleged facts that a consumer might reasonably expect the Products to withstand sudden temperature changes better than they currently do. Plaintiffs allege that borosilicate Pyrex has a long history with consumers. Plaintiffs also note Defendants, and Corning before them, advertised Pyrex as uniquely versatile and able to withstand sudden and extreme changes in temperature. Based upon Plaintiffs' allegations including the nature of Pyrex's extensive consumer history, the fact that the Products continue to be sold under the Pyrex name, are still marketed as versatile and safe and that Defendants fail to note on the Products or in advertisements that the Products are now made with a less thermal resistant glass, Plaintiffs have sufficiently alleged facts plausibly showing that the Products do not perform as reasonably expected. This Court next turns to Defendants' specific arguments regarding the various state implied warranty claims. Timeliness of New York and Massachusetts Implied Warranty Claim (Counts 8 and 13) Defendants argue that the New York and Massachusetts claims for breach of implied warranty are untimely. As this Court explained earlier, under New York and Massachusetts law, warranty claims must be asserted within four years after the cause of action accrued. Plaintiff Slepian's and Plaintiff Klein's implied warranty claims accrued more than four years ago and are thus time-barred. Accordingly, Defendants' motion to dismiss Counts 8 and 13 is granted. Failure to Plead Privity for Plaintiffs Florida, Illinois, and Ohio (Counts 9, 11, and 12) Defendants next argue that Plaintiff Grau's, Plaintiff Cashmore's, and Plaintiff Schutte's respective Florida, Illinois, and Ohio implied warranty claims should be dismissed for lack privity. Defendants contend that Plaintiffs have not and cannot allege privity because they purchased the Products from various retailers rather than directly from Defendants. Id. Plaintiff Grau, Plaintiff Cashmore, and Plaintiff Schutte concede they lack privity with Defendants but counter that their claims should be exempted from this requirement because they were the intended third-party beneficiaries and because Defendants dealt directly with consumers. Under Illinois law, privity constitutes an essential prerequisite to state a claim for economic damages based upon a breach of implied contract. An exception to this general rule exists, however, when the manufacturer and the consumer had a direct relationship, or when the manufacturer knew the identity, purpose, and requirements of the seller's customer and delivered the goods to meet those requirements. Here, Plaintiff Cashmore has not sufficiently alleged facts showing a direct relationship under Illinois law. While Plaintiffs generally alleges Defendants made representations and advertisements that were directed at consumers. Plaintiff Cashmore has not alleged any information establishing a direct relationship. For example, she has not alleged: any direct communications with Defendants or their agents prior to purchasing the Products, facts showing that Defendants took unique steps to create the Product for her needs or remedy the defect for her needs, or that Defendants were aware that Plaintiff Cashmore was Walmart's ultimate customer. Without more, her implied warranty claim cannot proceed. For these reasons, Plaintiff Cashmore's Illinois implied warranty claim is dismissed with prejudice. This Court now turns to Plaintiff Grau's breach of implied warranty claim. Florida law also strictly requires privity to sustain a claim of breach of implied warranty. The privity requirement extends to consumer claims even when the manufacturer directly markets its products to consumers. Here, Plaintiff Grau alleged that she purchased the Product from Target rather than Defendants. Therefore, she fails to allege privity and, by extension, fails to state a claim for breach of implied warranty. Her claim is, thus, dismissed with prejudice. Finally, Ohio law also requires privity of contract to state a claim for breach of implied warranty. Ohio courts have also declined to recognize an exception to this requirement for intended beneficiaries of a manufacturer's agreement with a retailer given the Ohio Supreme Court's unequivocal language that privity is required to maintain an implied warranty claim. Despite the privity requirement, Plaintiff Schutte pled that she purchased the Products from Kroger.This Court, thus, grants with prejudice Defendants' motion to dismiss Plaintiff Schutte's claim for breach of implied warranty. Because this Court has dismissed all of Plaintiffs' Implied Warranty claims, this Court need not evaluate Defendants' further arguments that Plaintiffs Slepian's and Klein's claims are defective because they misused their Products, and that Plaintiff Slepain's and Plaintiff Schutte's claims failed to plead notice. Magnuson-Moss Warranty Act Claims (Count 1) Defendants argue that where Plaintiffs' state warranty claims fail, so too do their Magnuson-Mass Warranty Act (MMWA) claims. This Court agrees. The Act provides federal jurisdiction for plaintiffs to assert warranty claims but does not provide substantive rights. Therefore, if a plaintiff's state law warranty claim is insufficient, her MMWA claim must also be dismissed. Thus, Plaintiffs MMWA claims rise and fall with their state law warranty claims. Plaintiffs' Common Law Contract Claims (Count 15) Plaintiffs assert a generalized common law contract claim should this Court dismiss their UCC-based warranty claims. This claim fails as a matter of law. Whenever a provision of the UCC applies to the parties' claims, then the UCC displaces common law claims. Plaintiffs fail to provide any authority as to why the UCC does not apply to their claims. For this reason, this Court dismisses Plaintiffs' common law contract claim without prejudice. Plaintiffs' Consumer Protection Claims Unlike Plaintiffs' contract claims, which are based upon Defendants' representations, Plaintiffs assert claims for violations of various consumer protection statutes based upon Defendants' alleged omission on the Products and in advertising that the Products are now made from a less heat resistant glass. Defendants advance two arguments arguing that this Court should summarily dismiss Plaintiffs' consumer protection claims. Defendants' Express Disclosure of the Defect Defendants first contend that Plaintiffs' consumer protection claims must be summarily dismissed because Defendants expressly disclosed that the Products may experience thermal breakage in the Products' Limited Warranty and user instructions. Even so, Plaintiffs allege that Defendants gave conflicting instructions and representations that were likely to confuse a reasonable consumer. This Court finds Plaintiffs' allegations sufficient to state a claim for consumer deception. Plaintiffs allege that: Defendants continue to market their Products under the longstanding Pyrex name; that they fail to expressly state the Products are now made with a less thermal resistant form of glass; that when they do address the material change on an FAQ, Defendants fail to explain the defect and represent generally that soda lime glass provides the same high-quality performance as borosilicate and that the Products are versatile and dishwasher, refrigerator, microwave, preheated oven safe. These allegations are sufficient to state a claim that a reasonable consumer may be misled into believing the Products are safer, more versatile, and more resistant to thermal breakage than they are, even in spite of Defendants' warning. Plaintiffs' Failure to Plead Fraud with Particularity Defendants also argue that all of Plaintiffs' state consumer fraud claims should be dismissed for failure to comply with the heightened pleading standard under Federal Rule of Civil Procedure 9(b). This Court disagrees for several reasons. First, contrary to Defendants' assertion, the various state consumer protection laws implicated here do not require Plaintiffs to meet the Rule 9(b) heightened pleading standard. For example, in Florida, the Deceptive and Unfair Trade Practices Act was enacted to provide remedies outside the reach of common law torts such as fraud, and therefore, the plaintiff need not prove the elements of fraud to sustain an action under the statute. Besides, Plaintiffs base their consumer protection claims upon a fraudulent omission theory. The standard to state a fraudulent omission claim under Rule 9(b) is more relaxed than the typical fraud claim. To plead fraudulent omission, Plaintiffs must allege details regarding the who, what, when, where, and how. Here, Plaintiffs allege those details by asserting that Defendants, since switching to soda lime glass, failed to disclose to consumers, either on the Products or in marketing campaigns, that the Products were made from an allegedly lower quality glass. These allegations remain sufficient to state a claim for fraudulent omission. Defendants also allege various pleading defects as to particular consumer protection statutes. This Court will now address these arguments in turn. Timeliness of Plaintiffs' New York Claims (Counts 16 and 17) Corelle argues that Plaintiff Slepian's consumer fraud claims are untimely. Claims brought under New York General Business Law Section 349 and 350 are subject to a three-year statute of limitations. The cause of action begins to accrue at the time Plaintiffs purchased the inherently defective Products. Plaintiff Slepian purchased the Products in 2013. Her claims, then, are time-barred as she purchased her Pyrex product more than three years ago. Thus, this Court grants Defendants' motion to dismiss Counts 16 and 17. Failure to Plead the Elements of the Ohio Consumer Sales Practices Act (Count 22) Defendants argue that Plaintiff Schutte's claim under the Ohio Consumer Sales Practices Act (OCSPA) fails to allege facts showing that Defendants had prior notice that their specific actions were deceptive or unconscionable. Ohio courts articulated: To adequately plead prior notice under O.R.C. Section 1345.09(B), plaintiff must allege either that a specific rule or regulation has been promulgated by the Ohio Attorney General under R.C. 1345.05 that specifically characterizes the challenged practice as unfair or deceptive, or that an Ohio state court has found the specific practice either unconscionable or deceptive in a decision open to public inspection. To fulfill the notice requirement, Plaintiff Schutte cites a section of Ohio's Administrative Code that generally prohibits misleading representations. But generic provisions are not enough because Plaintiff Schutte must identify a substantially similar act or practice which the Ohio Attorney General or an Ohio court previously declared deceptive. The generic provision Plaintiff Schutte cites does not refer to any particular act or practice such as a substantially similar conduct taken within the same industry. Because Plaintiff Schutte failed to allege Defendant had prior notice that its actions were deceptive as required under the OCSPA, this Court dismisses her OCSPA claim. Ohio Deceptive Trade Practices Act (Count 23) Plaintiff Schutte's claim under the Ohio Deceptive Trade Practices Act (ODTPA) also fails. While the Ohio Supreme Court has not addressed the question of whether consumers have standing to assert claims under the ODTPA, the vast majority of federal courts and all lower Ohio state courts to address the issue have concluded that relief under the DTPA is not available to consumers. Thus, this Court finds that Plaintiff Schutte, as a consumer, does not have standing to assert this claim and dismisses Count 23. Failure to Plead Reliance or Causation for Plaintiffs' New York, Florida, Illinois, and Ohio Consumer Fraud Claims (Counts 16-23) Defendants seek dismissal of Plaintiffs' New York, Florida, Michigan, Illinois, and Ohio consumer protection claims because Plaintiffs failed to identify any specific representation they relied upon when purchasing the Products, thereby leading to their injury. Because this Court already dismissed Plaintiffs' New York, Michigan, and Ohio consumer fraud claims on other grounds, this Court will only consider Plaintiffs' Florida and Illinois claims. Defendants argue that Plaintiffs' claims fail to identify a specific representation they relied upon to their detriment in purchasing the Products. Typically, to state this type of claim, a plaintiff must allege the specific representation the defendant made upon which he or she relied. Yet Defendants misunderstand Plaintiffs' allegations. For their consumer protection claims, Plaintiffs state they were harmed by Defendants' omission rather than any representation. Plaintiffs further pled that had they been aware of the Defect, i.e. that the Product was made from soda lime glass which is more susceptible to shattering, they would not have purchased or used Pyrex. These allegations suffice to state a claim of consumer deception based upon fraudulent concealment. In sum, this Court denies Defendants' motion to dismiss Plaintiffs' Florida and Illinois consumer fraud claims based upon a theory of fraudulent concealment. Failure to Allege Future Harm under the Illinois Uniform Deceptive Trade Practices Act (Count 21) Plaintiff Cashmore seeks injunctive relief against Defendants under the Illinois Uniform Deceptive Trade Practices Act (UDTPA). The UDTPA is designed to enjoin trade practices that are deceptive or confusing to consumers. A claim is proper under the UDTPA when the plaintiff alleges facts showing a likelihood of future damage. Defendants contend that given that Plaintiff Cashmore is now aware the Products are manufactured with soda lime glass, she is unlikely to succumb to future harm by purchasing the Products again. In fact, she even alleges that had she known of the defect when she purchased the Products, she would have taken a different course of action. Therefore, Defendants argue that she is at no risk of continuing to be fooled by Defendants' allegedly deceptive conduct. This Court finds Defendants' argument persuasive. Indeed, the UDTPA's future harm requirement frequently proves problematic for plaintiffs asserting consumer claims. This Court concludes that Plaintiff Cashmore has failed to adequately plead a likelihood of future injury. For that reason, this Court dismisses Count 21. Failure to Allege a Violation of Massachusetts Consumer Protection Law (Count 24) Plaintiffs allege violations of Mass Gen. Laws ch. 93A based upon the allegations of Plaintiff Klein. To state a claim sounding in fraud under Mass Gen. Laws ch. 93A, a Plaintiff must meet the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). As discussed previously, however, Plaintiff Klein met this standard as to her theory of fraudulently omission. For this reason, this Court denies Defendants' motion to dismiss Plaintiff Klein's claim under Mass Gen. Laws ch. 93A. Unjust Enrichment (Count 14) Plaintiffs assert a generalized unjust enrichment claim. Plaintiffs state they bring this claim in the alternative should their other claims not be governed by contract law. To support this claim, Plaintiffs assert Defendants unjustly received a benefit when Plaintiffs purchased the defective Products. Id. Pars. 348-50. For their part, Defendants argue that some of these claims are time-barred and that many of these claims are improper for other reasons. In order to analyze this claim, this Court looks to Illinois choice-of-law principles to determine the applicable substantive law to Plaintiffs' claims. Illinois uses the most significant relationship test. Under this test, the location of the injury controls unless Illinois has a more significant relationship. In this case, the state where the consumer lives, purchased the products, and was injured has the more significant relationship to the claims and govern Plaintiffs' claims. Thus, this Court will evaluate each Plaintiff's claims based upon where she suffered an injury. Plaintiffs' Claims are Duplicative of Other Claims at Law Defendants argue that Plaintiffs Slepian's, Grau's, Cashmore's, and Klein's unjust enrichment claims should be dismissed as improperly duplicative of their contract and consumer protection claims.This Court evaluates Plaintiffs claims in turn. As to Plaintiff Slepian, under New York law, claims for unjust enrichment may not proceed as a catchall cause of action. Instead the claim is available only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable obligation running from the defendant to the plaintiff. Although Plaintiff Slepian asserts that her claims are not duplicative, this argument rings hollow. She asserts not only contract claims but also tort consumer protection claims, both of which rely upon the same underlying facts as her unjust enrichment claim. Accordingly, this Court grants Defendants' motion to dismiss Plaintiff Slepian's unjust enrichment claim with prejudice. Relatedly, under Florida law, unjust enrichment, as an equitable remedy, is available only when the plaintiff does not have a remedy at law available. And although unjust enrichment may be pled in the alternative, where the unjust enrichment claim relies upon the same factual predicates as plaintiff's legal causes of action, it is not a true alternative theory of relief and must be dismissed. Here, Plaintiff Grau's unjust enrichment claims rest upon the same factual allegations as her contract and consumer deception claims, namely that Defendants fraudulently marketed the Products as versatile and safe without disclosing the Products were made from inferior soda lime glass and that she paid more than she otherwise would have if Defendants had not concealed that the Products are now made from soda lime glass. Because her unjust enrichment claim relies upon the same factual predicate as her legal causes of action, her claim must be dismissed. Therefore, this Court grants with prejudice Defendants' motion to dismiss Plaintiff Grau's unjust enrichment claim. Turning to Plaintiff Klein's claims, Massachusetts law likewise does not permit claims for unjust enrichment when Plaintiffs have an adequate remedy at law. Indeed, under Massachusetts law, unjust enrichment serves only as an equitable stopgap for occasional inadequacies in contractual remedies at law. As relevant here, Massachusetts courts consider claims for violations of Massachusetts consumer protection law an adequate remedy at law. Furthermore, the fact that Plaintiffs may not prevail on their contract claims does not mean that they do not have an adequate remedy at law. For these reasons, this Court grants with prejudice Defendants' motion to dismiss Plaintiff Klein's unjust enrichment claim. Finally, this Court examines Plaintiff Cashmore's unjust enrichment claim under Illinois law. Unlike claims under New York, Florida, and Massachusetts law, under Illinois law, a claim for unjust enrichment may be asserted alongside other claims in tort, contract, or statute. In this case, this Court declined to dismiss Plaintiff Cashmore's Illinois Consumer Fraud Act claim. Accordingly, just as her consumer fraud claim survived dismissal, so does Plaintiff Cashmore's unjust enrichment claim. Failure to Establish a Direct Relationship with Defendants under Ohio Law Defendants seek dismissal of Plaintiff Schutte's Ohio unjust enrichment claim because she has not pled facts showing that she directly purchased Pyrex from Corelle. Under Ohio law, unjust enrichment is not intended to compensate the plaintiff for damages lost, but rather to restore the benefit she conferred on the defendant. In this case, Plaintiff Schutte alleges she purchased several new Pyrex bowls from a Kroger store in Ohio. By contrast, she does not allege that she ever purchased Pyrex directly from Defendants. But the Ohio Supreme Court has held that in order for a plaintiff to confer a benefit on a defendant, an economic transaction must exist between the parties. Ohio courts, therefore, dismiss unjust enrichment claims when the plaintiff did not directly purchase the goods or services from the defendant. Here, Plaintiff Schutte has failed to allege any facts suggesting that her purchase conferred a benefit on Defendants. For that reason, this Court grants Defendants motion to dismiss Plaintiff Schutte's unjust enrichment claim without prejudice. Plaintiff Schutte may reassert this claim if she can allege facts showing that Defendants financially profited from this transaction. In conclusion, this Court grants Defendants' motion to dismiss Count 14 with prejudice except as it relates to Plaintiff Cashmore's claim. This Court grants Defendants' motion to dismiss Plaintiffs' breach of express warranty claims except for Plaintiff Cashmore's Illinois claim. This Court grants Defendants' motion to dismiss Plaintiffs' breach of implied warranty claims. This Court grants Defendants' motion to dismiss Plaintiffs' claim for breach of warranties under the Magnuson-Moss Warranty Act except for Plaintiff Cashmore's claim for breach of express warranty. This Court grants Defendants' motion to dismiss Plaintiffs' breach of contract, or, alternatively, breach of common law warranty claim. This Court grants Defendants' motion to dismiss Plaintiffs' claims for violations of N.Y. Gen. Bus. Law Section 349 and 350. This Court denies Defendants' motion to dismiss Plaintiff Grau's claim for violation of the Florida Deceptive and Unfair Trade Practices Act. This Court grants Defendants' motion to dismiss Plaintiff Simon's claim for violation of Michigan's Consumer Protection Act. This Court denies Defendants' motion to dismiss Plaintiff Cashmore's claim for violation of Illinois's Consumer Fraud and Deceptive Trade Practices Act. This Court grants Defendants' motion to dismiss Plaintiff Cashmore's claim for violation of Illinois's Uniform Deceptive Trade Practices Act. This Court grants Defendants' motion to dismiss Plaintiff Schutte's claims under Ohio's Consumer Sales Practices Act and Deceptive Trade Practices Act. This Court denies Defendants' motion to dismiss Plaintiff Klein's claim for violation of Mass. Gen. Laws ch. 93A. A full-text copy of the District Court’s September 30, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/yxv2o96t from Leagle.com Tricia Fullerton, Plaintiff, represented by Edward A. Wallace -- eaw@wexlerwallace.com -- Wexler Wallace LLP, Gregory F. Coleman , Greg Coleman Law PC, 800 S. Gay Street, Suite 1100, Knoxville, TN 37929, Lauren C. Kaplan -- LCK@wexlerwallace.com -- Wexler Wallace, Adam Arthur Edwards , Greg Coleman Law PC, 800 S. Gay Street, Suite 1100, Knoxville, TN 37929, Daniel K. Bryson -- dan@wbmllp.com -- Whitfield Bryson & Mason Llp, pro hac vice, Harper T. Segui -- harper@wbmllp.com -- Whitfield Bryson & Mason LLP, pro hac vice, Mark E. Silvey , Greg Coleman Law PC, 800 S. Gay Street, Suite 1100, Knoxville, TN 37929, pro hac vice, Matthew E. Lee -- matt@wbmllp.com -- Whitfield Byrson & Mason Llp, pro hac vice & Rachel Lynn Soffin , Greg Coleman Law, 800 S. Gay Street, Suite 1100, Knoxville, TN 37929 Karyn Slepian, Claribel Grau & Jan Simon, on behalf of themselves and all others similarly situated, Plaintiffs, represented by Edward A. Wallace , Wexler Wallace LLP, Gregory F. Coleman , Greg Coleman Law PC, Lauren C. Kaplan , Wexler Wallace, Adam Arthur Edwards , Greg Coleman Law PC, Harper T. Segui , Whitfield Bryson & Mason LLP, pro hac vice, Mark E. Silvey , Greg Coleman Law PC, pro hac vice, Matthew E. Lee , Whitfield Byrson & Mason Llp, pro hac vice & Rachel Lynn Soffin , Greg Coleman Law. Kelly Cashmore, Plaintiff, represented by Matthew E. Lee, Whitfield Byrson & Mason Llp, pro hac vice, Rachel Lynn Soffin, Greg Coleman Law & Gregory F. Coleman, Greg Coleman Law PC. Corelle Brands, LLC, doing business as World Kitchen, LLC & Corelle Brands Holdings, Inc., doing business as World Kitchen Holdings, Inc., Defendants, represented by Alexa Blaine Lutchen -- alexa.lutchen@davispolk.com -- Davis Polk & Wardwell Llp, Andrew Scott Gehring -- andrew.ditchfield@davispolk.com -- Davis Polk & Wardwell Llp, Frances E. Bivens -- frances.bivens@davispolk.com -- Davis Polk & Wardwell Llp, Leonard A. Gail -- lgail@masseygail.com -- Massey & Gail & Suyash Agrawal -- sagrawal@masseygail.com -- Massey & Gail LLP. COTTON HOLDINGS: Underpays Laborers, Cabre et al. Suit Claim ------------------------------------------------------------ PEDRO J. CABRE; KASSANDRA V. CRUZ; YORMAR E. FARFAN; BELLALIZ E. GONZALEZ; NOIRALITH B. GONZALEZ; GUSTAVO HERNANDEZ; REINALDO J. QUINTERO; and ERICK VILLASANA, individually and on behalf of all others similarly situated, Plaintiffs v. COTTON HOLDINGS, INC. d/b/a COTTON COMMERCIAL USA; SUPERIOR STAFFING & PAYROLL SERVICES; VCDP COMPANIES INC., and DANIEL PAZ, Defendants, Case No. 1:19-cv-23866-XXXX (S.D. Fla., Sept. 17, 2019) seeks to recover from the Defendants unpaid wages and overtime compensation, interest, liquidated damages, attorneys' fees, and costs under the Fair Labor Standards Act. The Plaintiffs were employed by the Defendants as laborers to perform hurricane clean-up duties at the Hyatt Residence Club Key West, Windward Pointe following Hurricane Irma in 2017. Cotton Holdings, Inc. d/b/a Cotton Commercial USA provides general contracting services such as constructing heavy construction projects. [BN] The Plaintiff is represented by: Erin F. Medeiros, Esq. Matthew J. Mierzwa, Jr., Esq. MIERZWA & FLOYD, P.A. 3900 Woodlake Blvd., Suite 212 Lake Worth, FL 33463 Telephone: (561) 966-1200 Facsimile: (561) 966-1231 E-mail: mmierzwa@mierzwalaw.com emedeiros@mierzwalaw.com - and - Gregory K. McGillivary, Esq. Sara L. Faulman, Esq. Sarah M. Block, Esq. McGILLIVARY STEELE ELKIN LLP 1101 Vermont Ave. NW, Suite 1000 Washington, DC 20005 Telephone: (202) 833-8855 Facsimile: (202) 452-1090 E-mail: gkm@mselaborlaw.com slf@mselaborlaw.com smb@mselaborlaw.com - and - Kerry O'Brien, Esq. RESILIENCE FORCE JUSTICE PROJECT 53 W. Jackson Blvd., Suite 1224 Chicago, IL 60604 Telephone: (202) 316-8049 Facsimile: (773) 214-0670 E-mail: kobrien@resilienceforce.org CREDITECH INC: Certification of Class Sought in Neldner Suit ------------------------------------------------------------ Christopher Neldner moves the Court to certify the class described in the complaint of the lawsuit captioned CHRISTOPHER NELDNER, Individually and on Behalf of All Others Similarly Situated v. CREDITECH, INC., Case No. 2:19-cv-01437-PP (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff asserts. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com dmorris@ademilaw.com DENTAQUEST LLC: Jenkins Seeks Certification of Employees Class -------------------------------------------------------------- The Plaintiff in the lawsuit entitled SHAQUAN JENKINS, individually and on behalf of all others similarly situated v. DENTAQUEST, LLC, Case No. 2:19-cv-01432-LA (E.D. Wisc.), seeks certification of a class defined as: All persons who worked for Defendant as telephone-dedicated employees, however titled, who were compensated, in part or in full, on an hourly basis in Wisconsin at any time between September 30, 2017 and the present who did not receive the full amount of wages earned and owed to them (the "Wisconsin Class"). Ms. Jenkins also asks the Court to appoint her counsel as counsel for the class. The Plaintiff's claims are brought on a class basis against the Defendant, which provides dental plans to its members across the country. The Plaintiff alleges that she and those employees similarly situated are individuals who were, or are, employed by the Defendant in customer service and similar positions at its call centers, who were not paid for some or all of their work activities prior to the beginning of their shifts, or after the end of their shifts, or both.[CC] The Plaintiff is represented by: Patrick J. Schott, Esq. SCHOTT, BUBLITZ & ENGEL S.C. 640 W. Moreland Boulevard Waukesha, WI 53188 Telephone: (262) 827-1700 E-mail: pschott@sbe-law.com - and - James X. Bormes, Esq. Catherine P. Sons, Esq. LAW OFFICE OF JAMES X. BORMES, P.C. 8 South Michigan Avenue, Suite 2600 Chicago, IL 60603 Telephone: (312) 201-0575 E-mail: jxbormes@bormeslaw.com cpsons@bormeslaw.com - and - Thomas M. Ryan, Esq. LAW OFFICE OF THOMAS M. RYAN, P.C. 35 East Wacker Drive, Suite 650 Chicago, IL 60601 Telephone: (312) 726-3400 E-mail: tom@tomryanlaw.com DOBBERSTEIN LAW: Certification of Class Sought in Fote Suit ----------------------------------------------------------- Joseph Fote moves the Court to certify the class described in the complaint of the lawsuit styled JOSEPH FOTE, Individually and on Behalf of All Others Similarly Situated v. DOBBERSTEIN LAW FIRM LLC, COLLECTION ASSOCIATES LTD, and DUKE CAPITAL LLC, Case No. 2:19-cv-01435-LA (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff avers. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff asserts. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com DYNAMEX OPERATIONS: Court Narrows Claims in Ouadani FLSA Suit ------------------------------------------------------------- In the case captioned DJAMEL OUADANI, on behalf of himself and all others similarly situated, Plaintiff, v. DYNAMEX OPERATIONS EAST, LLC, Defendant, Civil Action No. 16-12036-PBS (D. Mass.), Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts (i) allowed in part and denied in part Ouadani's motion for class certification, and (ii) denied Oudani's motion for partial summary judgment. Ouadani brings the lawsuit against Defendant Dynamex, alleging violations of the Fair Labor Standards Act (FLSA), and the Massachusetts misclassification and wage laws. He asserts individual, class, and collective claims arising from Dynamex's practice of classifying drivers who perform Google Shopping Express deliveries as independent contractors. Ouadani performed Google Express deliveries from March to August 2016. He contracted directly with Selwyn & Bertha LLC ("S&B"), which was one of companies Dynamex used to supply drivers for Google Express deliveries. S&B classified and paid Ouadani as an independent contractor, not an employee. Dynamex, which is now doing business as TForce Final Mile, LLC, is headquartered in Dallas, Texas and operates a branch office in Wilmington, Massachusetts. It is a provider of transportation logistics services, which include providing same-day delivery services for its clients. From June 1, 2014 to Oct. 14, 2016, Dynamex contracted with Google Inc. to provide drivers to make Google Express deliveries across several major U.S. cities, including Boston, Massachusetts. Dynamex's Wilmington office was responsible for Google Express deliveries in the Greater Boston area. Ouadani filed the proposed class action on Oct. 11, 2016. His complaint asserts class claims for misclassification under Mass. Gen. Laws ch. 149 Section 148B, the Massachusetts Independent Contractor Statute (Count I), improper deductions under Mass. Gen. Laws ch. 149 Section 148 ("Massachusetts Wage Act") (Count II), minimum wage violations under Mass. Gen. Laws. ch. 151, Section 1A ("Massachusetts Minimum Wage Law") (Count III), and unjust enrichment (Count IV). It also asserts an individual claim for retaliation (Count V) and a collective action claim for minimum wage violations under the Fair Labor Standards Act (Count VI). Dynamex moved to dismiss and/or compel arbitration of all claims on Feb. 9, 2017, which the Court denied on May 10, 2017. Dynamex then appealed the Court's decision, and the case was stayed while the appeal was pending. On Nov. 21, 2017, the U.S. Circuit Court for the First Circuit denied Dynamex's appeal. The First Circuit subsequently lifted the stay and discovery on liability proceeded between the parties. On Oct. 14, 2018, Ouadani filed a motion for class certification as to Counts I and II. He seeks a class with the following definition: All individuals categorized by Dynamex as indirect drivers who performed Google Express deliveries between July 16, 2014 and Oct. 14, 2016. On the same day, Ouadani also filed a motion for summary judgment as to Count I only. The Defendants opposed both motions. The Court held a hearing on Ouadani's class certification and summary judgment motions on Jan. 29, 2019. Federal Rule of Civil Procedure 23(a) imposes four "threshold requirements" applicable to all class actions: numerosity, commonality, typicality, and adequacy. Judge Saris finds that the proposed class satisfies the requirements of Rule 23(a). And while Dynamex has not offered any evidence of how exactly the Masters compensated their W-2 employees (i.e., an hourly rate vs. salary), the Judge agrees that calculating their damages will likely require individualized proof. Moreover, it is not clear that Dynamex can even be held liable for misclassifying Indirect Drivers as independent contractors if they were in fact classified by their Masters as employees. But these issues can be avoided by excluding all W-2 employees from the class. For the remaining Indirect Drivers, however, Dynamex merely speculates that their Masters and Agents may have used different compensation schemes. This is not enough to overcome the inference suggested by Ouadani and supported by the evidence that is actually in the record, the District Court points out. Therefore, the Judge concludes that subject to the modifications described -- the exclusion of the Indirect Drivers who (1) worked for Agents and (2) were W-2 employees of Masters -- the proposed class satisfies Rule 23(b)(3)'s predominance requirement. Under Rule 23(b)(3), the Court also must be satisfied that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The superiority inquiry is closely related to the predominance inquiry, and Dynamex's arguments concerning superiority mostly re-hash those it made regarding predominance. For largely the same reasons, the Judge does not find these arguments persuasive. Rather, she agrees with Ouadani that that efficiency and the policy considerations unique to the employment context make class adjudication superior. The Judge is satisfied that Rule 23(b)(3)'s superiority requirement is satisfied. In addition to the textual requirements of Rule 23, the First Circuit adds an ascertainability requirement to the class certification analysis. The parties do not contest this issue and the Judge sees no reason why the class members are not ascertainable. Indeed, the parties agree which Google Express drivers fall within the class as proposed by Ouadani. And the Court's modifications to the proposed class do not impact ascertainability. Whether the Indirect Drivers worked for Masters or Agents and whether they were employed as W-2 employees or independent contractors are both objective criteria. Thus, the Judge finds that the class satisfies the First Circuit's ascertainability requirement. In his motion for summary judgment, Ouadani contended that Dynamex cannot bear its burden on either part of the Prong A inquiry and, therefore, he is entitled to summary judgment on Count I of his complaint for misclassification of the Indirect Drivers. Dynamex concedes it ran background checks and drug tests on the Indirect Drivers. It also admits it issued the drivers uniforms and badges (although it disputes that these uniforms and badges were always Dynamex-branded). But these concessions are not enough to establish that Dynamex controlled the "means and methods" by which the Indirect Drivers performed Google Express deliveries. Ouadani contended that Dynamex has manufactured many of these factual disputes by submitting an affidavit that directly contradicts the documentary evidence and the deposition testimony of its corporate representative. Judge Saris is not persuaded. For the most part, the Judge finds that the affidavit contradicts Ouadani's characterization of the facts. These contradictions will have to be resolved at trial. She does not find as a matter of law that Dynamex exercised actual control over the indirect drivers. For the foregoing reasons, Judge Saris (i) allowed in part and denied in part Ouadani's motion for class certification as to Counts I and II of the complaint. The Judge certified the following class: All individuals who performed Google Express deliveries between July 16, 2014 and Oct. 14, 2016 who (1) were categorized by Dynamex as indirect drivers, (2) were associated with a master independent contractor, and (3) were not W-2 employees of their master independent contractor. The Judge denied Ouadani's motion for summary judgment as to Count I of the complaint. A status conference on the matter was to be held on Oct. 1, 2019. A full-text copy of the Court's Sept. 13, 2019 Memorandum and Order is available at https://is.gd/llQke6 from Leagle.com. Djamel Ouadani, On Behalf of himself and all others similary situated, Plaintiff, represented by Stephen S. Churchill, Esq. -- steve@fairworklaw.com -- and -- Rachel J. Smit, Esq. -- rachel@fairworklaw.com -- FAIR WORK, P.C. Dynamex Operations East, LLC, Defendant, represented by Diane M. Saunders -- daine@saunders@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart. Dynamex Operations East, LLC, ThirdParty Plaintiff, represented by Diane M. Saunders, Ogletree Deakins Nash Smoak & Stewart. Sylwin and Bertha Shipping, ThirdParty Defendant, represented by Shehzad S. Rajwani -- srajwani@harborlaw.com -- The Harbor Law Group. Sylwin and Bertha Shipping, Counter Claimant, represented by Shehzad S. Rajwani, The Harbor Law Group. Dynamex Operations East, LLC, Counter Defendant, represented by Diane M. Saunders, Ogletree Deakins Nash Smoak & Stewart. ECO SHIELD: Service Technicians Class Certified in Fanslau Suit --------------------------------------------------------------- The Hon. Manish S. Shah grants the Plaintiffs' renewed motion for conditional certification and to facilitate notice pursuant to the Fair Labor Standards Act in the lawsuit entitled MATTHEW FANSLAU, et al. v. ECO SHIELD PEST CONTROL CHICAGO, LLC, et al., Case No. 1:18-cv-07181 (N.D. Ill.). Judge Shah conditionally certifies a collective action for all service technicians that were employed on a non-exempt, hourly-compensated basis in the State of Illinois by Eco Shield Chicago LLC at any point during the three years preceding the date of notice. This potential class shall include any employees that had a title or duties similar to "service technician," including but not limited to start technicians and pest technicians. The amended proposed notice, as modified by this order, may issue, Judge Shah says. He directs the Defendants to produce to the Plaintiff by October 28, 2019, a computer-readable data file containing the names, last-known addresses, e-mail addresses, phone numbers, and dates of employment of the conditionally certified FLSA collective. "At the present time, I see no need for the disclosure of social security numbers or dates of birth. Disclosure of email addresses, phone numbers, and last known addresses is warranted because the putative class members appear to be spread throughout the state and because such methods of communication appear reasonably calculated to inform them of this collective action," Judge Shah notes. All opt-in consent forms must be returned and executed within 60 days of the date the first notice is sent. This will allow members of the putative collective to receive "accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate," Judge Shah opines, citing Hoffman-LaRoche, 493 U.S. at 170. He adds that disclosure of the dates of employment will facilitate the Plaintiffs' counsel's communication with the potential opt-in plaintiffs and allow counsel to accurately advise the opt-ins about the nature of this action as it may apply to them.[CC] ELECTROCORE INC: Faces Turnofsky Class Action Suit in New Jersey ---------------------------------------------------------------- electroCore, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on October 2, 2019, that the company has been named as a defendant in a putative class action suit entitled, Allyn Turnofsky vs. electroCore, Inc., et al., Case 3:19-cv-18400. On September 26, 2019, a purported stockholder of the Company served a putative class action lawsuit in the United States District Court for the District of New Jersey captioned Allyn Turnofsky vs. electroCore, Inc., et al., Case 3:19-cv-18400. In addition to the Company, the defendants include present and past directors and officers and the underwriters for the Company's initial public offering. The plaintiff seeks to represent a class of stockholders who (i) purchased common stock of the Company in its initial public offering (the "IPO") or whose purchases are traceable to the IPO, or (ii) who purchased common stock of the Company between the IPO and September 25, 2019. The complaint alleges that the defendants violated Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Exchange Act of 1934, with respect to (i) the registration statement and related prospectus for the IPO, and (ii) certain later public disclosures. The complaint seeks unspecified compensatory damages, interest, costs and attorneys' fees. The Company intends to vigorously defend itself; however, in light of, among other things, the preliminary stage of the litigation, the Company is unable to provide any assurances as to the ultimate outcome of the lawsuit and is unable to make a meaningful estimate of the amount or range of loss, if any, that could result from an unfavorable outcome. electroCore, Inc., a bioelectronic medicine company, engages in developing a range of patient administered non-invasive vagus nerve (VNS) stimulation therapies for the treatment of various conditions in neurology, rheumatology, and other fields. The company was founded in 2005 and is headquartered in Basking Ridge, New Jersey. EXPERIAN INFORMATION: Class of Consumers Certified in Reyes Suit ---------------------------------------------------------------- The Honorable Andrew J. Guilford grants the Plaintiff's motion for class certification in the lawsuit styled DEMETA REYES V. EXPERIAN INFORMATION SOLUTIONS, INC., Case No. 8:16-cv-00563-AG-AFM (C.D. Cal.). The class is defined as: "All persons whose Experian consumer report contained an account from Delbert Services Corp. reflecting delinquency on a loan originated by Western Sky Financial, LLC after January 21, 2015 . . . ." The Plaintiff defines "delinquency" as "accounts that have been charged off, sent to collection, and/or reflect past due or late payments[.]" Excluded from the Class are certain persons affiliated with Experian, as well as "any judge, justice or judicial officer presiding over this matter and the members of their immediate families and judicial staff." The Court also appoints Stueve Siegel Hanson LLP as class counsel in this case. "Any arguments not addressed in this lengthy order either weren't convincing or didn't need to be addressed at this time," according to the Court's Civil Minutes. In February 2016, Plaintiff Demeta Reyes, a Georgia resident, filed this putative class action against Defendant Experian Information Solutions, Inc., a nationwide credit-reporting agency headquartered in Costa Mesa, California. The Plaintiff purports to assert one claim for relief under the Fair Credit Reporting Act of 1970.[CC] FAIRLIFE, LLC: Maltreated Dairy Cow, Olivo Claims ------------------------------------------------- MARLENY OLIVO, individually and on behalf of all others similarly situated, the Plaintiff, vs. THE COCA-COLA COMPANY, and FAIRLIFE, LLC, the Defendants, Case No. 2:19-cv-08302 (C.D. Cal., Sept. 25, 2019), seeks to hold Defendants liable for engaging in a massive consumer fraud involving the sale of milk products. The Defendants advertised, promoted, and sold a variety of milk products at premium prices justified solely by the representation that the milk was obtained from dairy cows that receive "extraordinary" care. That was false. Fair Oaks Farms, run by defendants Mike and Sue McCloskey, abused and tortured the dairy cows and young calves on the farm. Undercover video exposed the sickening treatment of these animals -- treatment that one hopes is far worse than the treatment of dairy cows and calves on any other dairy farm that produces and sells milk at a non-premium price. The Plaintiffs were deceived into purchasing Defendants' products. Therefore, the Products are not merchantable under California law and Defendants have breached their implied warranty of merchantability in regard to the Products. If Plaintiff and members of both the California Subclass and California Consumer Subclass had known that the Products were not made with milk from humanely raised cows, they would not have purchased them or would not have been willing to pay the premium price associated with the milk. Therefore, as a direct and/or indirect result of Defendants' breach, Plaintiff and members of both the California Subclass and California Consumer Subclass have suffered injury and deserve to recover all damages afforded under the law, the lawsuit says.[BN] Attorneys for the Plaintiff are: Benjamin Heikali, Esq. Joshua Nassir, Esq. FARUQI & FARUQI, LLP 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256-2884 Facsimile: (424) 256-2885 E-mail: bheikali@faruqilaw.com jnassir@faruqilaw.com FINANCIAL ASSET: Molinari Seeks to Certify Class ------------------------------------------------ In the class action lawsuit styled as RICHARD MOLINARI, the Plaintiff, on behalf of himself and a class of similarly situated individuals, the Plaintiff, vs. FINANCIAL ASSET MANAGEMENT SYSTEMS, INC., the Defendant, Case No. 1:18-cv-01526 (N.D. Ill.), the Plaintiff asks the Court for an order: a. certifying a class of: "all persons who were called with pre-recorded voice messages without their consent"; b. appointing the Plaintiff as Class Representative; and c. appointing James C. Vlahakis as Class Counsel. The Plaintiff alleges that Defendant violated the Telephone Consumer Protection Act and the Fair Debt Collection Practices Act.[CC] Attorney for the Plaintiff and the proposed class members are: James C. Vlahakis, Esq. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: 630 581-5456 Facsimile: 630 575-8188 E-mail: jvlahakis@sulaimanlaw.com FINANCIAL RECOVERY: Certification of Class Sought in Voeks Suit --------------------------------------------------------------- Megan Voeks moves the Court to certify the class described in the complaint of the lawsuit captioned MEGAN VOEKS, Individually and on Behalf of All Others Similarly Situated v. FINANCIAL RECOVERY SERVICES INC., Case No. 2:19-cv-01438-WED (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). While the Seventh Circuit has held that the specific procedure described in Campbell-Ewald cannot force the individual settlement of a class representative's claims, the same decision cautions that other methods may prevent a plaintiff from representing a class, the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June 20, 2017). The Plaintiff asserts that one defendant has attempted a similar tactic by sending a certified check to the proposed class representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D. Wis.); see also Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff asserts. As the Motion to certify a class is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP, as class counsel.[CC] The Plaintiff is represented by: John D. Blythin, Esq. Mark A. Eldridge, Esq. Jesse Fruchter, Esq. Ben J. Slatky, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com meldridge@ademilaw.com jfruchter@ademilaw.com bslatky@ademilaw.com FINANCIAL RECOVERY: Valerio Files FDCPA Suit in New York -------------------------------------------------------- A class action lawsuit has been filed against Financial Recovery Services, Inc. The case is styled as Maria Valerio, individually and on behalf of all others similarly situated, Plaintiff v. Financial Recovery Services, Inc., Defendant, Case No. 1:19-cv-05700 (E.D. N.Y., Oct. 9, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Financial Recovery Services, Inc. provides debt collection services. The Company offers comprehensive coverage, auditing, monitoring, electronic file transfer, legal collections, skiptracing, bilingual capability, and comprehensive data security services.[BN] The Plaintiff is represented by: David M. Barshay, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Email: dbarshay@barshaysanders.com - and - Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com FOCUS SERVICES: Bid for Conditional Certification Continued ------------------------------------------------------------ In the class action lawsuit styled as Mikayla Pretzsch, the Plaintiff, v. Focus Services, LLC, et al., the Defendants, Case No. 1:19-cv-03599 (N.D. Ill.), the Hon. Judge Charles P. Kocoras entered an order continuing Plaintiff's motion for Conditional Certification and Court-Authorized Notice pursuant to 29 U.S.C. section 216(b), according to the docket entry made by the Clerk on October 8, 2019. As previously reported by Class Action Reporter, the Plaintiff filed the lawsuit on behalf of herself and all similarly situated current and/or former Customer Service Representative employees of Defendants to recover for Defendants' willful violation of the Fair Labor Standards Act ("FLSA"), the Illinois Minimum Wage Law ("IMWL"), Illinois Wage Payment and Collection Act (IWPCA), alleged contractual obligations (or unjust enrichment if no contract is found), and other appropriate rules, regulations, statutes, and ordinances. Focus Services LLC is a privately owned call center service provider, specializing in multi-product telesales and customer relationship management founded in 1995. It has locations in the United States, El Salvador, England, Nicaragua, India, China, Brazil and the Philippines.[CC] FORD MOTOR: 9th Cir. Vacates Lower Court's OK of Vargas Class Deal ------------------------------------------------------------------ In the cases, OMAR VARGAS, et al., Plaintiffs-Appellees, v. BRENDA LOTT, et al., Objectors-Appellants, v. JASON DEBOLT, Objector-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee, Case Nos. 17-56745, 17-56746 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit vacated the district court's approval of the pre-certification class settlement between Defendant Ford and a nationwide class of consumers. The appeal concerns a putative nationwide class action alleging defects in the transmission of the 2011-2016 Ford Fiesta and the 2012-2016 Ford Focus. The district court approved a pre-certification class settlement between Defendant Ford and a nationwide class of consumers. In exchange for release of all claims, the settlement provided that any class member who brought in their vehicle for transmission repairs would be entitled to cash payments for the third and every subsequent repair. The settlement also allowed class members to seek, through arbitration, repurchase when authorized by the consumer's state's lemon law. Finally, the Defendant agreed not to object to an award of $8,856,000 in fees to the class counsel. Objectors Brenda Lott, Suzanne Lutz, Carlie Olivant, Gail Slomine, and Philip Woloszyn ("Lott Objectors") appealed the lower court's decision, arguing that the district court failed to justify its conclusion that the settlement provided meaningful value to the class members. Objector Jason DeBolt separately appealed, arguing that the district court erred in refusing to consider his objections. The Appellate Court finds that the district court did not undertake the comprehensive review required by the Court's precedent. For example, the court adopted the estimate of the class counsel's expert that the cash payments were worth around $35 million. As the Lott Objectors noted, however, that calculation was based on the total payments available to every eligible vehicle. Because the actual claims rate is likely to be very much less than 100%, the actual value of the settlement is almost certainly much lower. From the record, the Appellate Court cannot determine whether the district court made an effort to estimate the likely claims rate. Additionally, while the Plaintiffs represented that the class was likely to include nearly 2 million members, the Plaintiffs' own expert found that there were only 92,891 eligible vehicles, with another 143,178 close to eligibility. Thus, only a very small fraction of the class likely stands to gain any monetary benefit. The district court's analysis failed to analyze the settlement's fairness in light of this information. The lower court's analysis of the arbitration provision was similarly truncated, resting largely on the conclusion that the arbitration procedure appears more favorable to claimants than the typical lemon law suit, the Appellate Court notes. The Ninth Circuit holds that this analysis was not the sufficiently reasoned response required by the precedent. For even if that were true, it does not determine whether releasing all claims against Ford, including those governed by less stringent standards than lemon laws, is fair or reasonable. Finally, with respect to the fee award, the Appellate Court has warned district courts to be alert for certain subtle signs that the class counsel has allowed pursuit of their own self-interests and that of certain class members to infect the negotiations. At least two of those signs are present in the settlement, which includes a fee award disproportionate to the class recovery and a "clear sailing" provision whereby the Defendant agreed not to object to the award sought by the class counsel. The district court did not examine the settlement and develop record to support its final approval decision, the Appellate Court held. The district court's failure to give a reasoned response to all non-frivolous objections precludes affirmance on this record, the Appellate Court further held. Because the district court did not satisfy the procedural standard required by the caselaw, the Appellate Court vacated the final settlement approval and remanded so that the district court may conduct a more searching inquiry. In light of this disposition, the Appellate Court has no occasion to consider Objector DeBolt's separate arguments for vacatur. A full-text copy of the Court's Sept. 13, 2019 Memorandum is available at https://is.gd/1wtd0K from Leagle.com. FOURPOINT ENERGY: Rounds Files Class Action in Colorado ------------------------------------------------------- A class action lawsuit has been filed against FourPoint Energy, LLC. The case is styled as Kenny Wayne Rounds and Randy Carl Smith, on behalf of themselves and on all others similarly situated, Plaintiffs v. FourPoint Energy, LLC, a Colorado limited liability company, Defendant, Case No. 1:19-cv-02878 (D. Colo., Oct. 8, 2019). The docket of the case states the nature of suit as Contract: Other filed pursuant to the Class Action Fairness Act. FourPoint Energy, LLC is a private oil and gas exploration and production company founded by the leadership team of Cordillera Energy Partners following the sale to Apache Corporation in 2012.[BN] The Plaintiff is represented by: Reagan Edward Bradford, Esq. Lanier Law Firm, P.C. 431 West Main Street, Suite D Oklahoma City, OK 73102 Tel: (405) 698-2770 Fax: (405) 234-5506 Email: Reagan.Bradford@LanierLawFirm.com FRANKLIN COUNTY, MA: Donelan Appeals Decision in Reid Class Suit ---------------------------------------------------------------- Defendants Matthew T. Albence, William P. Barr, Christopher Brackett, Christopher J. Donelan, David Dubois, Executive Office for Immigration Review, Thomas M. Hodgson, Kevin K. McAleenan, Joseph D. McDonald, Jr., James McHenry, Denis C. Riordan, Lori Streeter and Steven W. Tompkins filed an appeal from a Court ruling issued in their lawsuit entitled Reid, et al. v. Donelan, et al., Case No. 3:13-cv-30125-PBS, in the U.S. District Court for the District Court of Massachusetts, Springfield. The appellate case is captioned as Reid, et al. v. Donelan, et al., Case No. 19-1900, in the United States Court of Appeals for the First Circuit. As reported in the Class Action Reporter on Sept. 2, 2019, Plaintiffs Leo Felix Charles, Mark Anthony Reid and Robert Williams filed an appeal from a Court ruling in the lawsuit. That appellate case is styled Reid, et al. v. Donelan, et al., Case No. 19-1787, in the United States Court of Appeals for the First Circuit. In the class action, the Plaintiffs challenge the mandatory detention of certain criminal aliens for more than six months without the opportunity for a bond hearing during removal proceedings pursuant to 8 U.S.C. Section 1226(c) under the Fifth Amendment Due Process Clause and the Eighth Amendment Excessive Bail Clause. The briefing schedule in the Appellate Case states that Docketing Statement, Transcript Report/Order form, and Appearance form were due October 7, 2019.[BN] Petitioner-Appellee MARK ANTHONY REID is represented by: Muneer I. Ahmad, Esq. Erin Drake, Esq. Clare Kane, Esq. Zachary-John Manfredi, Esq. Aseem Mehta, Esq. My Khanh Ngo, Esq. Amber Qureshi, Esq. YALE LAW SCHOOL PO Box 209090 New Haven, CT 06511 Telephone: (203) 432-4800 E-mail: muneer.ahmad@yale.edu zachary.manfredi@gmail.com aseem.mehta@aya.yale.edu mk.ngo@yale.edu - and - Lunar Mai, Esq. Marisol Orihuela, Esq. YALE LAW SCHOOL 127 Wall St. New Haven, CT 06511 Telephone: (203) 432-4992 E-mail: marisol.orihuela@yale.edu - and - Ahilan Arulanantham, Esq. AMERICAN CIVIL LIBERTIES UNION OF SOUTHERN CALIFORNIA 1313 West 8th St Los Angeles, CA 90017 Telephone: (213) 977-5211 E-mail: aarulanantham@aclu-sc.org - and - Matthew R. Segal, Esq. AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS 211 Congress St., 3rd Floor Boston, MA 02110-2485 Telephone: (617) 482-3170 E-mail: msegal@aclum.org - and - Michael King Thomas Tan, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad St., 18th Floor New York, NY 10004-0000 Telephone: (212) 519-7848 E-mail: mtan@aclu.org - and - Lauren J. Carasik, Esq. WESTERN NEW ENGLAND UNIVERSITY 1215 Wilbraham Rd. Springfield, MA 01119-2684 Telephone: (413) 782-1504 E-mail: Carasik@law.wne.edu - and - Michelle Nyein, Esq. Anant Kumar Saraswat, Esq. WOLF GREENFIELD & SACKS PC 600 Atlantic Ave. Boston, MA 02210-0000 Telephone: (617) 646-8457 E-mail: Michelle.Nyein@WolfGreenfield.com Anant.Saraswat@WolfGreenfield.com Petitioner-Appellee MARK ANTHONY REID, and Petitioners ROBERT WILLIAMS, on behalf of himself and others similarly situated, and LEO FELIX CHARLES, on behalf of himself and others similarly situated, are represented by: Michael J. Wishnie, Esq. YALE LAW SCHOOL 127 Wall St. New Haven, CT 06511 Telephone: (203) 432-4800 E-mail: michael.wishnie@yale.edu Respondents-Appellants CHRISTOPHER J. DONELAN, Sheriff, Franklin County, Massachusetts; LORI STREETER, Superintendent, Franklin County Jail & House of Correction; THOMAS M. HODGSON, Sheriff, Bristol County, Massachusetts; JOSEPH D. MCDONALD, JR., Sheriff, Plymouth County, Massachusetts; STEVEN W. TOMPKINS, Sheriff, Suffolk County, Massachusetts; KEVIN K. MCALEENAN, Acting Secretary of the Department of Homeland Security; DENIS C. RIORDAN, Director, Immigration and Customs Enforcement Boston Field Office; MATTHEW T. ALBENCE, Acting Director, Immigration and Customs Enforcement; WILLIAM P. BARR, Attorney General; JAMES MCHENRY, Director of the Executive Office for Immigration Review; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; DAVID DUBOIS; and CHRISTOPHER BRACKETT are represented by: Janette L. Allen, Esq. Yamileth G. Davila, Esq. Lauren E. Fascett, Esq. Colin A. Kisor, Esq. Huy Le, Esq. Elianis N. Perez, Esq. Catherine M. Reno, Esq. J. Max Weintraub, Esq. U.S. DEPT. OF JUSTICE PO Box 878 Ben Franklin Station Washington, DC 20044-0878 Telephone: (202) 532-4095 E-mail: janette.allen@usdoj.gov yamileth.g.davila@usdoj.gov Lauren.Fascett@usdoj.gov colin.kisor@usdoj.gov elianis.perez@usdoj.gov catherine.m.reno@usdoj.gov jacob.weintraub@usdoj.gov - and - Huy Le, Esq. U.S. DEPARTMENT OF JUSTICE PO Box 868 Washington, DC 20044 Telephone: (202) 353-4028 E-mail: M.Le2@usdoj.gov - and - Karen L. Goodwin, Esq. U.S. ATTORNEY'S OFFICE 300 State St., Suite 230 Springfield, MA 01105-2926 Telephone: (413) 785-0269 E-mail: karen.goodwin@usdoj.gov - and - Cynthia A. Young, Esq. U.S. ATTORNEY'S OFFICE 1 Courthouse Way, Suite 9200 Boston, MA 02210 Telephone: (617) 748-3100 GEICO GENERAL: Interlocutory Appeal Application in Green Suit OK'd ------------------------------------------------------------------ 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, C.A. No. N17C-03-242 EMD CCLD (Del. Super.), Judge Eric M. Davis of the Superior Court of Delaware granted the Defendant's Application for Certification of Interlocutory Appeal of This Court's Opinion Granting Plaintiffs' Motion for Class Certification. The Plaintiffs filed suit against GEICO. As alleged, GEICO uses two computerized models to evaluate personal injury protection ("PIP") claims of its insureds. The Plaintiffs argued that GEICO uses the Rules to deny valid claims without evaluating the facts underlying the claims. They seek certification of a class action under Superior Court Civil Rule 23. As part of the Civil Rule 23 process, the Plaintiffs filed their Plaintiffs' Motion for Class Certification. After extensive briefing and a one-day hearing where the parties presented evidence and arguments on May 10, 2019, the Court issued the Opinion granting the relief sought in the Class Motion. GEICO noted an interlocutory appeal of the Opinion on Sept. 6, 2019. Previously, on Sept. 5, 2019, the Plaintiffs submitted a proposed implementing order. GEICO has opposed entry of the Proposed Order, arguing that the Proposed Order is merely a disguised motion to reconsider the Opinion. The Plaintiffs have countered and contended that under Superior Court Civil Rule 23(d), the Court has broad authority to manage the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument and to deal with similar procedural matters. The orders may be altered or amended as may be desirable from time to time. Given that GEICO noted an appeal, Judge Davis does not feel it is appropriate to address the Proposed Order. The Judge is concerned with jurisdictional issues based on the appeal and Rule 42. The Judge is apprehensive, though, that GEICO's appeal is premature given that the Court has not addressed issues like "claimant classes," "class representatives" and "class counsel" ("Open Issues") -- all of which the Court anticipated dealing with subsequent to issuing the Opinion. As such, the Supreme Court may not have an entire record to review on appeal and any decision may warrant remand to address the Open Issues. Judge Davis does not agree with many the contentions in the Motion. The Judge says GEICO continually attempts to "recharacterize" the pleadings in the civil action to fit a situation previously addressed by the Court and the U.S. District Court for the District of Delaware. The Plaintiffs, however, have crafted a complaint and asserted claims recognized as potentially valid by the Court and adopted by, among others, the U.S. District Court for the District of New Jersey. The Court previously addressed those legal issues in GEICO's motion to dismiss ("MTD") the Plaintiffs' Amended Complaint. The Court denied the MTD in an opinion issued on April 24, 2018. GEICO noted an interlocutory appeal of the MTD Opinion, however, the Supreme Court denied GEICO's request for an interlocutory appeal. Accordingly, the Judge does not believe that Rule 42(b)(iii)(A)-(F) criterion apply. Instead, the Judge grants the Motion and enters the Order certifying an interlocutory appeal because the Opinion: (i) decides a substantial issue of material importance that merits appellate review before a final judgment; and (ii) implicates Rule 42(b)(iii) (G) and (H). A full-text copy of the Court's Sept. 13, 2019 Order is available at https://is.gd/U7tnVb from Leagle.com. GID ORTHODONTICS: Simon et al Seek to Certify Settlement Class -------------------------------------------------------------- In the class action lawsuit styled as BRANDON SIMON and LAINEY HOLLINGSWORTH, individually and on behalf of those similarly situated, the Plaintiffs, vs. KEVIN J. ISON DMD PSC, d/b/a ORTHODONTIC SPECIALISTS; GID ORTHODONTICS LLC, d/b/a ORTHODONTICS SPECIALISTS; and DR. KEVIN J. ISON, DMD, MS, the Defendants, Case No. 1:18-cv-00458-SJD-KLL (S.D. Ohio),the Plaintiffs ask the Court on Oct. 10, 2019 for an order: 1. preliminarily certifying a Settlement Class; "all persons who worked as hourly and non-exempt employees for Defendants, and who worked in excess of 40 hours in any workweek, and who were not paid one and one-half times their regular rate of pay for the hours worked in excess of 40 in any such workweek"; 2. approving the Parties' proposed Settlement Agreement; 3. allowing Plaintiffs to send notice to the Settlement Class members; 4. scheduling a Fairness Hearing at the earliest possible date, at which time the parties will request final approval of the settlement; and 5. establishing a schedule to complete the tasks necessary to effectuate the proposed settlement, and for such other and further relief as the Court may deem equitable and just. The proposed Settlement Agreement requires Defendants to pay $110,000 into a settlement fund. The settlement amount will cover all of Defendants' settlement obligations to Plaintiffs and the class members. From the settlement fund, Plaintiffs' counsel shall pay a proposed service payment to the class representatives in the amount of $3,500 per individual and attorneys' fees and costs in the amount of $55,000. The settlement administration costs will be borne by Plaintiffs' counsel and deducted from the attorneys' fees and costs awarded to them. The Plaintiffs allege that Defendants failed to properly calculate and pay overtime wages to certain non-exempt, hourly employees who worked more than 40 hours per week. The Plaintiffs allege that Defendants' acts and omissions violated the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act, and the Commonwealth of Kentucky's wage and hour laws.[CC] The Plaintiffs are represented by: Stephen E. Imm, Esq. FINNEY LAW FIRM 4270 Ivy Pointe Blvd., Suite 225 Cincinnati, OH 45245 Telephone: (513) 943-5678 - and - Bruce H. Meizlish, Esq. Deborah R. Grayson, Esq. MEIZLISH & GRAYSON 830 Main Street, Suite 999 Cincinnati, OH 45202 Telephone: (513) 345-4700 Counsel for the Defendants are: Katherine B. Capito, Esq. HISSAM FORMAN DONOVAN RITCHIE PLLC 707 Virginia Street East, Suite 260 Charleston, WV 25301 Telephone: (681) 265-3802 GOLDEN TRUST INSURANCE: Perez Files Consumer Class Suit in Florida ------------------------------------------------------------------ A class action lawsuit has been filed against Golden Trust Insurance, Inc. The case is styled as Manuel Perez, individually and on behalf of all others similarly situated, Plaintiff v. Golden Trust Insurance, Inc., a Florida corporation, Defendant, Case No. 1:19-cv-24157-MGC (S.D. Fla., Oct. 9, 2019). The nature of suit is stated as Consumer Credit. GoldenTrust Insurance is located in Miami, Florida, with offices in Coral Gables, Hialeah, Doral and Kendall.[BN] The Plaintiff is represented by: Garrett O. Berg, Esq. Shamis, Gentile, P.A. 7241 SW 118 St Pinecrest, FL 33156 Tel: (305) 298-2253 Email: gberg@shamisgentile.com - and - Scott Adam Edelsberg, Esq. Edelsberg Law PA 20900 NE 30th Ave 417 Aventura, FL 33180 Tel: (305) 975-3320 Email: scott@edelsberglaw.com - and - Andrew John Shamis, Esq. 14 NE 1st Ave STE 1205 Miami, FL 33131 Tel: (404) 797-9696 Email: ashamis@sflinjuryattorneys.com HARTFORD AUTO: Faces Willingham Suit in Connecticut Superior Court ------------------------------------------------------------------ A class action lawsuit has been filed against Hartford Auto Group, Inc. The case is captioned as RALPH WILLINGHAM AND OTHERS SIMILARLY SITUATED, the Plaintiff, vs. HARTFORD AUTO GROUP, INC. D/B/A: MAC MITSUBISHI; SANTANDER CONSUMER USA INC.; and JOHN DOE, the Defendants, Case No. HHD-CV-19-6117177-S (Conn. Super., Sept. 16, 2019).[BN] Attorneys for the Plaintiff are: CONSUMER LAW GROUP LLC 35 Cold Spring Road, Suite 512 Rocky Hill, CT 06067 Telephone: (860) 571-0408 HEADWAY TECHNOLOGIES: Faces Ingber Antitrust Suit in N.D. Calif. ---------------------------------------------------------------- TED INGBER, on behalf of himself and all others similarly situated 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., SAE MAGNETICS (H.K.) LTD., AND TDK CORPORATION, Case No. 3:19-cv-05938 (N.D. Cal., Sept. 23, 2019), is brought for damages and injunctive relief pursuant to federal antitrust laws, state antitrust laws, unfair competition, and consumer protection laws. The Plaintiff's claims arise from the 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. The Plaintiff brings this antitrust class action on behalf of individuals and entities that indirectly purchased HDD Suspension Assemblies in the United States from the Defendants, their predecessors, any subsidiaries or affiliates thereof, or any of their named and unnamed coconspirators. HDD Suspension Assemblies are a critical component of hard disk drives, which are used to store electronic information. The Plaintiff and members of the Class paid artificially inflated prices for HDD Suspension Assemblies and have been injured in their business and property, according to the complaint. The Defendants manufactured and/or supplied HDD Suspension Assemblies, either directly or indirectly through its subsidiaries or affiliates, to customers in the United States. Headway Technologies, Inc. is a Delaware corporation wholly owned by TDK, with its principal place of business located in Milpitas, California. Headway provides recording head products to the HDD industry and employs approximately 800 people in engineering, manufacturing and administration roles in Milpitas. TDK is a Japanese corporation with its principal place of business located in Tokyo, Japan.[BN] The Plaintiff is represented by: Patrice L. Bishop, Esq. STULL, STULL & BRODY 9430 W. Olympic Blvd., Suite 400 Beverly Hills, CA 90212 Telephone: (310) 209-2468 Facsimile: (310) 209-2087 E-mail: pbishop@ssbla.com - and - Melissa R. Emert, Esq. STULL, STULL & BRODY 6 East 45th Street New York, NY 10017 Telephone: (212) 687-7230 Facsimile: (212) 490-2022 E-mail: memert@ssbny.com HEALTHSOURCE GLOBAL: Court Compels Arbitration in Marron Labor Suit ------------------------------------------------------------------- In the case, DAVID H. MARRON, Plaintiff, v. HEALTHSOURCE GLOBAL STAFFING, INC., Defendant, Case No. 19-cv-01534-KAW (N.D. Cal.), Magistrate Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California (i) denied the Plaintiff's motion to remand, and (ii) granted the Defendant's motion to compel arbitration. On Oct. 18, 2018, Marron filed the instant putative class action against the Defendant, asserting violations of various credit reporting laws and California labor laws. On Dec. 18, 2018, he filed an amended complaint, adding a California's Private Attorneys General Act claim. The Defendant recruits and hires registered healthcare professionals from all over the United States to staff hospitals during labor disputes between the hospital and its employees' unions. The Plaintiff is a former employee of the Defendant. The Plaintiff alleges that when he applied for employment with the Defendant, he was required to fill out a disclosure and authorization form to perform a background investigation. The disclosures, however, contained extraneous and superfluous language that does not consist solely of the disclosure as required by federal and state laws. The Plaintiff further alleges that he and the putative class performed off-the-clock work. Thus, he alleges the Defendants failed to pay workers for extensive time spent traveling and under the direction and control of the Defendants. While working, the Plaintiff alleges that workers were not provided with the necessary meal breaks or rest periods. The Plaintiff also alleges that the Defendants agreed to pay its workers a daily per diem for food, but that they did not receive the agreed upon per diem from them. Because of these practices, the Plaintiff asserts that workers did not receive accurate wage statements, as their statements failed to accurately reflect all hours worked and premium wages for missed meal and/or rest periods. Additionally, he alleges that the Defendant failed to timely pay wages earned to employees who were terminated or resigned. To be eligible for employment, an applicant creates an account through the Defendant's website using a unique e-mail address and password. The Plaintiff created his account on June 18, 2012. On Dec. 1, 2017, he nominated himself for consideration for an anticipated May 2018 strike. On April 28, 2018, the Plaintiff electronically signed the Arbitration Agreement. On behalf of a FCRA Class, ICRAA Class, and CCRAA Class, the Plaintiff alleged violations of the Fair Credit Reporting Act, the Investigative Consumer Reporting Agencies Act, and Consumer Credit Reporting Agencies Act, respectively. The Plaintiff also sought to represent an Hourly Employees Class, made up of all persons employed by Defendants and/or any staffing agencies and/or any other third parties in hourly or non-exempt positions in California. On behalf of the Hourly Employees Class, the Plaintiff alleged violations for failure to pay hourly and overtime wages. The Hourly Employees Class includes four subclasses: (1) the meal period sub-class, made up of Hourly Employees Class members who worked in a shift in excess of five hours; (2) the rest period sub-class, made up of Hourly Employees Class members who worked a shift of at least 3.5 hours; (3) the wage statement penalties sub-class, made up of Hourly Employee Class members who were employed by Defendant during the period beginning one year before the filing of the action through the entry of final judgment; and (4) the waiting time penalties sub-class, made up of Hourly Employee Class members who separated from their employment during the period beginning three years before the filing of the action through entry of final judgment. The Plaintiff also seeks to represent an Unfair Competition Law (UCL) Class, made up of all Hourly Employee Class members, and an Expense Reimbursement Class, made up of all persons employed by Defendant who incurred business expenses. On March 25, 2019, the Defendant removed the case to federal court, asserting federal jurisdiction under the Class Action Fairness Act. It estimated that: (1) the FCRA claim was worth $105,000; (2) the meal period claim was worth $797,500; (3) the rest period claim was worth $1,993,750; (4) the hourly and overtime claim was worth $1,143,760; (5) the unreimbursed business expenses claim was worth $181,250; (6) the wage statement penalties claim was worth 120,000; (7) the waiting time penalties claim was worth $9,108,000; and (8) the Plaintiff's attorney's fees claim was worth $3,362,315, or 25% of the estimated damages. On June 27, 2019, the Defendant filed a motion to compel arbitration. On July 11, 2019, the Plaintiff filed his motion to remand, and his opposition to the Defendant's motion to compel. The parties dispute whether the Defendant has established the $5 million amount in controversy. Judge Westmore holds that the Defendant's estimate of the wage-related claims is adequate to satisfy CAFA's $5 million requirement. She finds that the Defendant has demonstrated by a preponderance of evidence that (i) the unpaid hourly and overtime wages is $1,143,760; (ii) the wage statement penalty is $9,108,000, assuming a 10% violation rate ($440 average daily pay x 30 days x 6,900 total assignments x 10%); and (iii) the wage statement penalties claim is worth $120,000, or $50 x 2,400 wage statements during a one-year period. The Plaintiff argues that even if the Court finds there is CAFA jurisdiction, it should sever the FCRA claim and remand it to state court because there is no basis for subject matter jurisdiction. The Plaintiff contends that because he has not adequately alleged Article III standing, there is no federal question jurisdiction, and thus the Court has no jurisdiction over the FCRA claim. The Judge disagrees. She holds that the Court does not require federal question jurisdiction over the FCRA claim because there is CAFA jurisdiction over the entire case. Accordingly, the Judge denies the Plaintiff's request to sever ands remand the FCRA claim. Finally, the Plaintiff challenges the sufficiency of the Elbahou declaration, arguing that he did not affirmatively state that he reviewed time records or pay records. While he expresses doubt as to the veracity of Mr. Elbahou, the Judge finds that the Plaintiff cites no authority that jurisdictional discovery is warranted in the case, nor any basis for his concerns. The record was sufficient for the Court to determine that it has jurisdiction, and therefore jurisdictional discovery is not necessary. In opposing the Defendant's motion to compel arbitration, the Plaintiff argues only that the arbitration agreement is unconscionable. The Judge holds that the concern is not that personally notifying the Defendant is burdensome, but that there is no practical way for a worker to satisfy this condition. If a worker cannot satisfy the first condition at all, a worker can never opt out, and therefore the opt-out provision is illusory. Without an opt-out provision, the contract is effectively one of adhesion, and therefore there is procedural unconscionability. The Court must also look for terms that are unreasonably favorable to the more powerful party and provisions that seek to negate the reasonable expectations of the non-drafting party. In the instant case, the Judge finds there is no substantive unconscionability in the Arbitration Agreement. While the PAGA waiver is unenforceable as a matter of public policy, that does not make it unconscionable. As the Plaintiff has failed to establish any substantively unconscionable provision in the Arbitration Agreement, the Judge finds that the Arbitration Agreement is not unconscionable. Therefore, the Defendant's motion to compel must be granted. For the reasons stated, Judge Westmore (i) denies the Plaintiff's motion to remand, and (ii) grants the Defendant's motion to compel arbitration. The Court will stay the proceedings in the instant case pending resolution of the arbitration. A full-text copy of the Court's Sept. 13, 2019 Order is available at https://is.gd/hU9Epn from Leagle.com. David H. Marron, Plaintiff, represented by Chaim Shaun Setareh -- shaun@setarehlaw.com -- Setareh Law Group, William Matthew Pao -- william@setarehlaw.com -- Setareh Law Group & Alexandra Rochelle McIntosh, Setareh Law Group. Healthsource Global Staffing, Inc., Defendant, represented by Amanda E. Beckwith -- abeckwith@sheppardmullin.com -- Sheppard Mullin Richter and Hampton LLP, Paul Scott Cowie -- pcowie@sheppardmullin.com -- Sheppard, Mullin, Richter & Hampton LLP & Brian Samuel Fong -- bfong@sheppardmullin.com -- Sheppard Mullin Richter Hampton. ILLINOIS: Court Narrows Claims in "Gun Violence" Exposure Suit -------------------------------------------------------------- The United States District Court for the Northern District of Illinois, Eastern Division issued a Memorandum Opinion and Order granting in part and denying in part Defendants' Motion to Dismiss in the case captioned DEMETRIA POWELL, as guardian ad litem and on behalf of her son D.P.; TANYA REESE, as guardian ad litem and on behalf of her son M.R.; and TYWANNA PATRICK, as guardian ad litem and on behalf of her granddaughter J.C., as well as on behalf of a class of similarly situated children, Plaintiffs, v. THE STATE OF ILLINOIS; THE ILLINOIS DEPARTMENT OF STATE POLICE; BRUCE RAUNER, Governor of the State of Illinois; and LEO P. SCHMITZ, Director of the Illinois Department of State Police, Defendants, Case No. 18-CV-6675. (N.D. Ill.). Defendants move to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It is common knowledge that, as the plaintiffs in this proposed class action allege, gun violence has ravaged the City of Chicago for decades and that the violence is concentrated in predominately African-American neighborhoods. The three named plaintiffs bring claims against the State of Illinois, the Illinois State Police (State Police), Illinois' governor, and the head of the State Police on behalf of three children who grew up in a high-crime, predominately African-American neighborhood on Chicago's west side. Plaintiffs' claims arise under Title II of the Americans with Disabilities Act of 1990 (ADA), as amended and the Illinois Civil Rights Act (ICRA). The complaint attributes each child's Post-Traumatic Stress Disorder (PTSD) diagnosis, as well as other disabilities affecting the child's ability to succeed at home and at school, primarily to daily exposure to gun violence and its effects. Defendants argue that plaintiffs do not have standing under Article III of the Constitution. They also argue that the complaint fails to state a claim for which relief can be granted. Standing To meet the minimum standing requirements of Article III, a plaintiff must establish three things: (1) he or she suffered or will suffer a concrete and particularized injury that is actual or imminent (2) the injury is fairly traceable to the defendant's action and (3) it is likely that the injury will be redressed by a favorable decision. Threat of Actual or Imminent Injury in Fact Defendants concede that the complaint adequately alleges an injury in fact: there is no question the complaint adequately alleges the psychological trauma to children who hear and are frightened by the sounds of gunshots, who personally see victims of violence dead or dying at crime scenes, and who have to cope on a frequent basis with the news of friends or loved ones killed or injured from gun violence. The precise nature of the ongoing threatened injury alleged in the complaint bears emphasis here. If plaintiffs sought money damages, the psychological harm and trauma alleged in the complaint certainly would meet the injury in fact requirement. But standing to seek damages for past wrongs does not necessarily give a plaintiff standing to seek a prospective injunction. Though not couched in injury in fact terms, the gist of many of defendants' arguments against standing is that gun violence in Chicago is a problem that affects everyone in the city of Chicago and State of Illinois to some measure. The complaint contains ample statistical evidence that gun violence in Chicago is concentrated in Austin and other predominately African-American neighborhoods. It is reasonable to infer that the concentrated violence begets trauma and the psychological and behavioral injuries described in the complaint, creating discrete pockets of predominately African-American individuals disproportionately likely to be harmed by ongoing exposure. The complaint here shares its theory of discrete and particularized harm with a recent Supreme Court case, Bank of America Corp. v. City of Miami, 137 S.Ct. 1296 (2017). Considering the Fair Housing Act, the Supreme Court held that a city had standing to sue a lender based on allegations that two lenders intentionally gave African-American and Latino individuals risky mortgages. The Court held that the plaintiff's complaint established the standing of the City of Miami to sue under the Fair Housing Act based on allegations that the lender's unlawful conduct led to a concentration of foreclosures and vacancies in certain neighborhoods. Those concentrated foreclosures and vacancies caused stagnation and decline in African-American and Latino neighborhoods, impairing the plaintiff's efforts to create integrated neighborhoods. Similarly here, the plaintiffs allege a chain of causation from defendants' unlawful conduct leading to concentrations of preventable gun violence in predominately African-American neighborhoods. Applying this standard here, only D.P. faces an actual or imminent threat of exposure to further gun violence in Chicago. D.P. continues to live in Chicago's Austin neighborhood where the complaint alleges gun violence continues on a daily basis. But T.C. and M.R. moved out of Chicago before the complaint was filed, T.C. to Bellwood and M.R. to Oak Park. The complaint says nothing about how the regulations plaintiffs propose would affect either child's exposure to gun violence, if any, in Oak Park or Bellwood. To the contrary, plaintiffs specifically plead that the regulations will stem the flow of guns into Chicago. Probably due to the scope of the reports and scholarly materials on which plaintiffs rely, they confine their allegations of the prevalence and concentration of gun violence to the City of Chicago and its neighborhoods. The complaint does not indicate that either T.C. or M.R. intends to return to the Austin neighborhood or that either child is likely to move to another Chicago neighborhood in which gun violence is concentrated. Accordingly, the court is forced to conclude that neither T.C. nor M.R. faces a reasonably likely ongoing threat of experiencing the harm alleged in the complaint exposure to gun violence in Chicago. The court therefore dismisses them, or rather their representatives, for lack of standing. In sum, the complaint adequately alleges the three essential ingredients of standing as to D.P. an ongoing threatened injury that is concrete and particularized, that is fairly traceable to defendants' failure to regulate, and that is redressable through injunctive and declaratory relief. Defendants' causation arguments raise, at least at the complaint stage, merits issues on the proper reach of an ADA claim and proximate causation. Plaintiffs' burden to establish the elements of standing generally increases throughout the litigation, but that is not the issue at the moment. The complaint adequately alleges standing. Having determined that plaintiffs' complaint adequately establishes standing for D.P.'s claims, the court turns to the related merits issues raised by defendants. Defendants argue on the merits that the complaint fails to state a claim under Title II of the ADA or the Illinois Civil Rights Act. They also contend that the Eleventh Amendment bars plaintiffs' ADA claims. The court first analyzes the ADA claims and then turns to the ICRA claim in Count III. Failure to State a Claim Standard Defendants' merits challenges arise under Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion to dismiss a complaint for failure to state a claim tests the sufficiency of the complaint, not the merits of the case , A complaint need only set forth a short and plain statement of the claim showing that the pleader is entitled to relief. That is, the complaint must state a claim to relief that is plausible on its face. A claim satisfies this standard when its factual allegations raise a right to relief above the speculative level. Merits of ADA Claims When it enacted the ADA, Congress sought to enforce a prohibition on irrational disability discrimination in Title II and to enforce a variety of other basic constitutional guarantees. Congress enacted Title II against a backdrop of pervasive unequal treatment of persons with disabilities in the administration of state services and programs, including systematic deprivations of fundamental rights. To state a claim, each plaintiff must plausibly allege that (1) he or she is a qualified person (2) with a disability and (3) the defendant] denied him or her access to a program or activity because of his or her disability. Defendants seek to frame plaintiffs' ADA claims as challenging everything they are doing at an exceedingly high level of generality. Thus, defendants cite a case considering whether, at a high level, an arrest can be considered a program or service under Title II. They opine that it is difficult to conceptualize how the plaintiffs or any other discrete group of people meet the essential eligibility requirements' of criminal law enforcement activities. Defendants' framing conflicts irreconcilably with the allegations of the complaint, however. The complaint defines the program or service not as statewide law enforcement but as the FOID firearms identification program. Defendants offer no argument as to why this is not a program or activity of theirs, and the complaint's well-pleaded allegations, as well as Illinois statutory law, confirms that it is. The same fundamental mischaracterization of the program or service plaintiffs allege undergirds defendants' other merits arguments. Defendants contend that plaintiffs have not adequately alleged discrimination under the ADA and that plaintiffs do not meet the program, service, or activity's essential eligibility requirements. In the Seventh Circuit a plaintiff need not allege either disparate treatment or disparate impact in order to state a reasonable accommodation claim under Title II of the ADA. Liability under Title II can be established by showing that (1) the defendant intentionally acted on the basis of the disability (2) the defendant refused to provide a reasonable modification or (3) the defendant's rule disproportionally impacts disabled people. The complaint here specifically alleges that defendants' FOID rules, or rather the lack of them, disproportionately impacts them and other persons with disabilities, citing statistical and anecdotal evidence which must be accepted as true for present purposes. Rather than engage with these allegations about the FOID program, defendants argue as though the relevant program or service is Illinois statewide law enforcement writ large or, as in one passage of the reply, public education. In particular, the court will not attempt to identify the essential eligibility criteria for the FOID program as it relates to plaintiffs an inquiry that is intertwined with defendants' argument that no discrimination occurred. Of course, the children plaintiffs represent do not want a FOID card, a gun, or ammunition. However, defendants argue for the first time in their reply that plaintiffs should have petitioned for a rulemaking under Illinois' Administrative Procedure Act before filing this lawsuit. It would seem to be a necessary predicate of defendants' argument that plaintiffs would be eligible to petition for a rulemaking enacting their proposed changes. But because defendants have waived this argument by waiting until their reply to make it, the court has no occasion to explore its significance. The court intimates no view on what discovery may reveal about these claims or on legal theories not adequately developed in the briefing. The court finds only that dismissal is unwarranted on the theories adequately developed in the motion to dismiss. Eleventh Amendment Immunity for ADA Claims Defendants next argue that if the court does not dismiss the complaint's ADA claims, then the Eleventh Amendment bars them. The Eleventh Amendment grants states immunity from private suits in federal court without their consent. Defendants want the court to answer a question left open in Tennessee v. Lane, 541 U.S. 509 (2004). In Lane, the Court concluded that Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress' Section 5 authority to enforce the guarantees of the Fourteenth Amendment" and abrogates the state sovereign immunity guaranteed by the Eleventh Amendment. Defendants invite the court to apply the abrogation framework applied in Lane, an analysis based on the test of City of Boerne v. Flores, 521 U.S. 507, 513 (1997). The court must decline defendants' invitation to conduct a Flores analysis because the Ex parte Young doctrine applies. The complaint seeks only prospective injunctive and declaratory relief. . In Garrett, 531 U.S. at 365-74, the Supreme Court held that Congress did not validly abrogate state sovereign immunity in the employment provision of the ADA, Title I, for claims for money damages. As this language makes clear, Title II suits for prospective equitable relief remain available without regard to the Boerne abrogation analysis, which is concerned with claims for money damages. Plaintiffs raise the Ex parte Young issue in their response, but defendants suggest no reason to think Ex parte Young is inapposite in their reply. Hence defendants' Eleventh Amendment argument must be rejected. Illinois Civil Rights Act Claim The Illinois Civil Rights Act of 2003 forbids a unit of state, county, or local government to, among other things, utilize criteria or methods of administration that have the effect of subjecting individuals to discrimination because of their race, color, national origin, or gender. Several courts have recognized that the ICRA was expressly intended to provide a state law remedy that was identical to the federal disparate impact canon under Title VII of the Civil Rights Act of 1964. Defendants seek dismissal of plaintiffs' ICRA claims for many of the same reasons they contend the ADA claims should be dismissed. Defendants here say the causal link between their conduct and the failure to regulate is too attenuated: they cite the intervention of third parties in gun violence and their connection to the resulting harm. The court has already explained that the complaint pleads statistical evidence that adequately establishes a causal relationship between defendants and gun violence. Defendants rely on one case in support of their argument, an Illinois trial court decision dismissing ICRA and other claims against gun shops and municipalities in which they were located. The court there analyzed the plaintiff's complaint and concluded that, despite the statistical evidence and reports pleaded in the complaint showing the village's connection to gun violence, Plaintiffs' Complaint fails to sufficiently allege a prima facie case of disparate impact discrimination under section 5(a)(2) of ICRA, and that Plaintiffs' cannot sufficiently allege a prima facie case of disparate impact discrimination. For the reasons discussed throughout this opinion, the complaint does each of those things. The court will not rehash that discussion here except to make a point underscored by the federal cases applying the ICRA. How a state actor utilizes methods or criteria as defined in the ICRA can often be a matter of semantics. Utilization can often be recharacterized as a failure to act. The complaint here points to the defendants' administration of the FOID program and alleges a double negative: defendants have no reasonable basis for not adopting reasonable gun trafficking regulations. Stated affirmatively, defendants administered the FOID program by not adopting certain practices and that administration has visited harms disproportionately on residents of predominately African-American neighborhoods in Chicago. Federal cases support the proposition that ICRA liability does not turn on whether the challenged state action is stated in the negative or the positive, liability can arise from the failure to take some step provided that the failure has a disparate impact. Defendants' motion to dismiss plaintiffs' complaint is granted in part and denied in part. The claims of plaintiffs Reese and Patrick are dismissed for lack of standing. A full-text copy of the District Court’s September 30, 2019 Memorandum Opinion and Order is available at https://tinyurl.com/y5lrtp6k from Leagle.com. Demetria Powell, as guardian ad litem and on behalf of her son D.P., Plaintiff, represented by Thomas Howard Geoghegan -- tgeoghegan@dsgchicago.com -- Despres Schwartz & Geoghegan, Thomas Edward Johnson -- tjohnson@jjsgd.com -- Johnson, Jones, Snelling & Gilbert & Michael Paul Persoon -- mpersoon@dsgchicago.com -- Despres Schwartz & Geoghegan. The State of Illinois, Bruce Rauner, Governor of the State of Illinois, Illinois Department of State Police, The & Leo P Schmitz, Director of the Illinois Department of State Police, Defendants, represented by Thomas A. Ioppolo , Illinois Attorney General's Office. JUUL LABS: Corkery et al. Sue over Mislabeled Cigarette Products ---------------------------------------------------------------- CONOR CORKERY; TOM HADDAD; THOMAS JOSEPH; and WILLIAM KIRK, individually and on behalf of all others similarly situated, Plaintiffs v. JUUL LABS, INC.; and PAX LABS, INC., Defendants, Case No. 3:19-cv-05813(N.D. Cal., Sept. 17, 2019) alleges that the Defendants misrepresented the nicotine content of JUULpods on its label, including the potency and addictiveness of JUULpods' nicotine salt formulation, and the use of JUULpods as a cool, fun, healthy activity. The Plaintiffs allege in the complaint that the Defendant knew, or was negligent or reckless in not knowing, that the JUUL e-cigarettes were likely to cause nicotine addiction in smokers and posed great risks of addiction to children. The Defendants further made misrepresentations about these risks, effects, operation, content, and other attributes of JUUL e-cigarettes. These misrepresentations include both omissions of nicotine warning, omission of facts regarding the increased potency and addictiveness of nicotine salts, misrepresentations about the amount of nicotine in JUULpods and the user's absorption thereof through use of JUUL. The Defendants also misrepresented JUUL as a fun, healthy activity for young people, without disclosing the long-term health effects and the actual feeling of being addicted to nicotine. Also, the Defendant actively concealed the nicotine content and nicotine potency of JUUL e-cigarettes from the Plaintiffs and Class Members while simultaneously providing false or misleading evidence concerning nicotine content. The Defendant actively concealed the benzoic acid content of the JUUL e-cigarettes, despite knowing that benzoic acid played a central role in determining the physiological effects of JUUL e-cigarettes. The Defendant manipulated the formulations of JUUL devices and JUULpods to augment their potency and addictiveness, and did so without notifying the Plaintiffs. JUUL Labs, Inc. manufactures electronic cigarettes. The Company offers products such as device kits, JUULpods, and accessories in different flavors. JUUL Labs serves customers in the United States. [BN] The Plaintiff is represented by: Mark P. Robinson, Jr., Esq. Kevin Calcagnie, Esq. ROBINSON CALCAGNIE, INC. 19 Corporate Plaza Drive Newport Beach, CA 92660 Telephone: (949) 720-1288 Facsimile: (949) 720-1292 E-mail: mrobinson@robinsonfirm.com kcalcagnie@robinsonfirm.com JUUL LABS: Parents File Class Action Over E-Cigarettes in Calif. ---------------------------------------------------------------- A class action lawsuit has been filed against Juul Labs, Inc. The case is styled as Bradley Colgate, Kaytlin McKnight, Anthony Smith, David Langan, Corey Smith, Jennifer Hellman, Tommy Benham, Jill Nelson, Lisa Commitante, M.H., a minor, by her Mother and Natural Guardian, Jennifer Hellman appointed guardian ad litem, L.B., a minor, by her Mother and Natural Guardian, Jill Nelson appointed guardian ad litem, Kacie Ann Lagun, on behalf of themselves, the general public and those similarly situated, A.U., a minor, by her Mother and Natural Guardian, Lisa Commitante appointed guardian ad litem, Michael Viscomi, Barbara Yannucci, David Masessa, Hasnat Ahmad, Liliana Andrade, Virginia Jose Angullo, B.C., a minor, through his Parent and Natural Guardian Mary Baker, Adam Banner, Q.C. through his parent and natural guardian Anjie Comer, D.C. and his mother and Natural Guardian Renee Deeter, D.D., Minor through their Parent and Natural Guardian Joseph DiGiancinto, C.D., minor, through their Parent and Natural Guardian Joseph DiGiacinto, K.S. through his parent and Natural Guardian Rachelle Dollinger, J.D. through his parent and natural guardian Nicole Dramis, Jillian Furey, Edgar Kalenkevich, David Kugler, Tracie Kugler, Kacie Ann Lagun, M.C. through his Parent and Natural Guardian Jeanine Manning, Ron Minas, S.G. through her Parent and Natural Guardian Ashley Noble, D.O. through her mother and natural guardian Atoyia Orders, Jack Roberts, W.T. both minors, through their parent and Natural Guardian Tonya Rowan, A.R.T. both minors, through their parent and Natural Guardian Tonya Rowan, Amber Royce, D.S., a minor, through his Parent and Natural Guardian Amber Selfridge, Laura Staller, T.B.T., a minor, through his parent and natural Guardian MarlendThomseth-Belcher, O.V., a minor, through her parent and natural guardian Tanya Viti, S.W., a minor, through his parent and natural guardian Joe Weibel, Jonathan Mardis, J.Y. a minor, by and with his mother and Natural Guardian Barbara Yannucci individually and on behalf of those similarly situated, Sabrina Zampa and John Thomas Via Peavy, Plaintiffs v. Juul Labs, Inc. and Altria Group, Inc., Defendants, Case No. 3:19-md-02913-WHO (N.D. Cal., Oct. 2, 2019). The docket of the case states the nature of suit as Product Liability asserting Personal Injury. Juul Labs, Inc. is an American electronic cigarette company which spun off from Pax Labs in 2017. It makes the Juul e-cigarette, which packages nicotine salts from leaf tobacco into one-time use cartridges. Juul Labs was co-founded by Adam Bowen and James Monsees. Its headquarters is in San Francisco.[BN] The Plaintiffs are represented by: Adam Gutride, Esq. GutrideSafier LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Tel: (415) 789-6390 Fax: (415) 449-6469 Email: adam@gutridesafier.com - and - Anthony J Patek, Esq. Gutride Safier LLP 835 Douglass Street San Francisco, CA 94114 Tel: (415) 529-4995 Fax: (415) 449-6469 Email: apatek@pateklaw.com - and - Esfand Nafisi, Esq. Migliaccio & Rathod LLP 388 Market Street, Suite 1300 San Francisco, CA 94111 Tel: (415) 489-7004 Fax: (202) 800-2730 Email: enafisi@classlawdc.com - and - Marie Ann McCrary, Esq. Gutride Safier LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Tel: (415) 789-6390 Fax: (415) 449-6469 Email: marie@gutridesafier.com - and - Matthew Thomas McCrary, Esq. Gutride Safier LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Tel: (214) 502-2171 Email: matt@gutridesafier.com - and - Seth A. Safier, Esq. Gutride Safier LLP 100 Pine Street, Suite 1250 San Francisco, CA 94111 Tel: (415) 271-6469 Fax: (415) 449-6469 Email: seth@gutridesafier.com - and - Todd Michael Kennedy, Esq. Gutride Safier LLP 835 Douglass Street San Francisco, CA 94114 Tel: (415) 789-6390 Email: todd@gutridesafier.com KENDALL IMPORTS: Gomez Sues Over Blind Inaccessible Website ------------------------------------------------------------ Andres Gomez, individually and on behalf of all other similarly situated mobility-impaired individuals, Plaintiff, v. Kendall Imports, LLC, Defendants, Case No. 19-cv-23640 (S.D. Fla., August 29, 2019), seeks preliminary and permanent injunction, compensatory, statutory and punitive damages and fines, prejudgment and post-judgment interest, costs and expenses of this action together with reasonable attorneys' and expert fees and such other and further relief under the Americans with Disabilities Act, New York State Human Rights Law and New York City Human Rights Law. Defendant is a vehicle dealer that owns and operates the website, www.kendalltoyota.com. Plaintiff is legally blind and claims that Defendant's website cannot be accessed by the visually-impaired. [BN] Plaintiff is represented by: Anthony J. Perez, Esq. GARCIA-MENOCAL, & PEREZ, P.L. 4937 SW 74th Court, No. 3 Miami, FL 33155 Telephone: (305) 553-3464 Facsimile: (305) 553-3031 E-Mail: ajperezlaw@gmail.com agmlaw@bellsouth.net mpomares@lawgmp.com KIDPIK CORP: Nisbett Alleges Violation under Disabilities Act ------------------------------------------------------------- Kidpik Corp. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kareem Nisbett, individually and on behalf of all other persons similarly situated, Plaintiff v. Kidpik Corp., Defendant, Case No. 1:19-cv-09289 (S.D. N.Y., Oct. 8, 2019). Kidpik Corp is an eCommerce clothing retailer that mixes and matches clothing for their customers and sends it to them.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170 Tel: (212) 764-7171 Email: chris@lipskylowe.com LUMBER LIQUIDATORS: Settlement Agreement Reached in Gold Suit ------------------------------------------------------------- Lumber Liquidators Holdings, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on October 2, 2019, that the company has entered into a definitive settlement agreement in the class action suit entitled, Dana Gold, Tammy Emery, Mary Louise Ference, Laura Norris, Donald Fursman, and John Triana, on behalf of themselves and all other similarly situated v. Lumber Liquidators, Inc. On March 2019, Lumber Liquidators, Inc. (the "Company"), who is a defendant in a putative class action litigation captioned Dana Gold, Tammy Emery, Mary Louise Ference, Laura Norris, Donald Fursman, and John Triana, on behalf of themselves and all other similarly situated v. Lumber Liquidators, Inc., a Delaware corporation; and Does 1 through 200, inclusive (the "Gold Litigation"), entered into a Memorandum of Understanding ("Gold MOU") with the lead plaintiff in the Gold Litigation, Dana Gold, on behalf of herself and all others similarly situated (collectively, the "Gold Plaintiffs") to memorialize an agreement in principle to settle the Gold Litigation on a nationwide basis. On September 30, 2019, the Company entered into a definitive settlement agreement with the Gold Plaintiffs consistent with the terms of the Gold MOU (the "Settlement Agreement"). The Settlement Agreement is subject to approval by the United States District Court for the Northern District of California (the "Court") and other contingencies. The Settlement Fund will be used to pay notice and administrative fees relating to the Gold Litigation and to compensate those individuals that were Putative Class Members during the Class Period. Under the terms of the Settlement Agreement, the Company will contribute $14 million in cash and provide $14 million in store-credit vouchers, with a potential additional $2 million in store-credit vouchers possible based on obtaining a claim’s percentage of more than 7% (collectively, the "Vouchers"), for an aggregate settlement of up to $30 million (the "Settlement Fund") to settle all claims asserted in the Gold Litigation (or which could have been asserted in the Gold Litigation) on behalf of all persons in the United States who purchased for personal, family or household use, Morning Star Strand Bamboo flooring (the "Putative Class Members") at any time between January 1, 2012 through March 15, 2019 (the "Class Period"). Holdings believes that its cash flow from operations, together with existing liquidity sources, is sufficient to fund the Settlement Fund, of which $1,000,000 of the cash portion will be paid to the fund within five days of the Court's preliminary approval of the settlement and will be used to pay the notice and settlement administrator's fees and the remaining $13,000,000 cash amount will be paid within 30 days of the Court's final approval order of the Settlement Agreement and the dismissal of the Gold Litigation. The Company will work together with counsel for the Gold Plaintiffs and the settlement administrator to prepare the Vouchers for distribution to approved claimants as set forth in the Settlement Agreement. The Gold Plaintiffs' legal fees and costs, not to exceed 33.33% of the Settlement Fund, are included as part of the Settlement Fund. Lumber Liquidators Holdings, Inc., together with its subsidiaries, operates as a multi-channel specialty retailer of hard-surface flooring, and hard-surface flooring enhancements and accessories. The company also offers its products through its Website, catalogs, and call center. Lumber Liquidators Holdings, Inc. was founded in 1994 and is headquartered in Toano, Virginia. MAMMOTH ENERGY: Furia is Lead Plaintiff in Consolidated Secs. Suit ------------------------------------------------------------------ In the cases, THOMAS SCUDERI, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. MAMMOTH ENERGY SERVICES, INC., ARTY STRAEHLA, and MARK LAYTON, Defendants; JUSTIN NORMANTAS, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. MAMMOTH ENERGY SERVICES, INC., ARTY STRAEHLA, and MARK LAYTON, Defendants; THE CITY OF SARASOTA GENERAL EMPLOYEE DEFINED BENEFIT PENSION PLAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. MAMMOTH ENERGY SERVICES, INC. ARTY STRAEHLA, and MARK LAYTON, Defendants, Case Nos. CIV-19-522-SLP, CIV-19-560-SLP, CIV-19-720-SLP (W.D. Okla.), Judge Scott L. Palk of the U.S. District Court for the Western District of Oklahoma has issued an order (i) consolidating the three related securities actions, and (ii) appointing the Lead Plaintiffs and the Lead Counsel. The three related matters involve a proposed securities fraud class action on behalf of persons or entities who purchased or otherwise acquired publicly traded Mammoth securities from Oct. 19, 2017 through June 5, 2019. The matters are before the Court on pending motions to consolidate, appoint the Lead Plaintiff(s) and appoint the Lead Counsel pursuant to the Private Securities Litigation Reform Act. On June 7, 2019, Plaintiff Scuderi filed a proposed class action complaint for violation of the federal securities laws. On the same day the suit was filed, Scuderi's counsel's law firm published notice of the pendency of the action announcing that the Lead Plaintiff motions were due no later than Aug. 6, 2019. Thereafter, on Aug. 6, 2019, Scuderi, together with Stephen Terry, Justas Normantas, Andrew Micklin, and Dion Larot ("Mammoth Investor Group") filed a motion to consolidate, appoint the Lead Counsel and approve the Lead Plaintiff's selection of counsel. They subsequently filed a Notice of Withdrawal acknowledging that the Mammoth Investor Group does not appear to have the largest financial interest. The Mammoth Investor Group continues to move for consolidation of the actions but withdraws its request to be appointed the Lead Plaintiff or to have its counsel be approved to serve as the Lead Counsel. On June 19, 2019, Plaintiff Normantas filed a second lawsuit that arises from substantially the same factual allegations and legal issues as the Scuderi lawsuit. On Aug. 6, 2019, Plaintiff Sarasota filed a third lawsuit. This lawsuit is also substantially the same as the Scuderi and Normantas lawsuits. The motions before the Court have been filed by the Mammoth Investor Group, the Furia Family and Sarasota. The Scuderi, Normantas and Sarasota actions involve claims on behalf of purchasers of Mammoth securities for alleged violations of securities laws. The actions each name as Defendants Mammoth Energy Services, Inc., Arty Straehla and Mark Layton. All three actions arise from the same factual and legal issues: whether the Plaintiffs purchased or otherwise acquired Mammoth securities at artificially inflated prices during the relevant time period as a result of the Defendants' allegedly false and misleading statements, and whether their conduct violated the Securities Exchange Act of 1934, and Securities and Exchange Commission Rule 10(b)-5. Moreover, no party opposes consolidation of the related actions. Accordingly, Judge Palk finds consolidation is proper and directs that the cases be consolidated for all pretrial proceedings and for trial. Applying the statutory presumption, the Judge finds that the Furia Family is the most adequate Plaintiff. The Furia Family has suffered $989,215.54 in losses as a result of the Defendants' alleged wrongful conduct. In comparison, Sarasota identifies $133,595.84 as its approximate losses. The Judge also finds the Furia Family satisfies the typicality and adequacy requirements of Rule 23. The Furia Family has selected as the Lead Counsel the law firm Block & Leviton LLP. The record establishes Block & Leviton has extensive experience litigating federal securities fraud class actions. As such, the Furia Family's selection of lead counsel is approved. The Furia Family also selects Jones, Gotcher & Bogan, P.C. as the Local Counsel. However, the Judge finds that no firm resume or other information is currently before the Court concerning the qualifications of local counsel. He, therefore, defers its ruling on appointment of local counsel and directs the Furia Family to submit appropriate information to demonstrate the qualifications of local counsel within five days of the date of the Order. Based on the foregoing, Judge Palk consolidated the three actions for all pretrial proceedings and for trial. The consolidated action will be designated as In re Mammoth Energy Services, Inc. Securities Litigation and all pleadings and other submissions filed subsequent to the date of the Order will bear the following caption and be filed only in Case No. CIV-19-522-SLP: IN RE MAMMOTH ENERGY SERVICES, INC. SECURITIES LITIGATION, Case No. CIV-19-522-SLP. All pleadings and other submissions previously served and filed in the Normantas and Sarasota actions will be deemed a part of the record in the consolidated action. The Furia Family is appointed as the Lead Plaintiff and the law firm of Block & Leviton LLP as the Lead Counsel. The Judge denied as moot the Motion of the Mammoth Investor Group to: (1) Consolidate the Related Actions; (2) be Appointed Lead Plaintiff; and (3) Approve Proposed Lead Plaintiff's Selection of Counsel based on the filing of the Notice of Withdrawal. He granted the Motion of the Furia Family for (1) Consolidation of Cases; (2) Appointment as Lead Plaintiffs; and (3) Appointment of Lead and Local Counsel and Brief in Support except that he defered ruling on appointment of local counsel and directed the Furia Family to submit appropriate information to demonstrate the qualifications of local counsel within five days of the date of the Order. He granted the Motion of the City of Sarasota General Employees Defined Benefit Pension Plan for (1) Consolidation, (2) Appointment as Lead Plaintiff, and (3) Approval of Selection of Counsel to the extent the Motion requests consolidation of these matters and denied it as to all other requested relief. The following scheduling deadlines in the matter are established: a) within 60 days of the date of the Order, Block & Leviton LLP on behalf of the Furia Family as the Lead Plaintiff, will file a consolidated amended complaint; b) The Defendants will have 45 days to answer or otherwise respond to the allegations of the consolidated amended complaint; c) The Furia Family, as the Lead Plaintiff, will file a response to any motion to dismiss, if such motion is filed by the Defendants, within 45 days after the motion is filed; and d) The Defendants will file their reply, if any, to the Furia Family's response within 30 days after such response, if any, is filed. The Clerk of Court is directed to file the Order in Scuderi, Case No. CIV-19-522-SLP, Normantas, Case No. CIV-19-560-SLP and Sarasota, Case No. CIV-19-720-SLP. A full-text copy of the Court's Sept. 13, 2019 Order is available at https://is.gd/trUjIT from Leagle.com. Thomas Scuderi, Individually and on behalf of all others similarly situated, Plaintiff, represented by William B. Federman -- wbf@federmanlaw.com -- Federman & Sherwood & Phillip Kim -- pkim@rosenlegal.com -- The Rosen Law Firm PA. Justas Normantas, Stephen Terry, Andrew Micklin & Dion Larot, Plaintiffs, represented by William B. Federman, Federman & Sherwood. Daniel Furia, Sharon Furia & Vincent Furia, Plaintiffs, represented by C. Michael Copeland, Jones Gotcher & Bogan PC, Jacob A. Walker, Block & Leviton LLP & Jeffrey C. Block, Block & Leviton LLP. Sarasota Gen. Pension Fund, Plaintiff, represented by Atara Hirsch , Abraham Fruchter & Twersky LLP, Darren M. Tawwater, The Tawwater Law Firm PLLC, Ian D. Berg, Abraham Fruchter & Twersky LLP & Mitchell M.Z. Twersky, Abraham Fruchter & Twersky LLP. Mammoth Energy Services Inc, Arty Straehla & Mark Layton, Defendants, represented by Erin M. Brewer -- erin.brewer@akingump.com -- Akin Gump Strauss Hauer & Feld, M. Scott Barnard -- sbarnard@akingump.com -- Akin Gump Strauss Hauer & Feld, Michael F. Lauderdale -- michael.lauderdale@mcafeetaft.com -- McAfee & Taft, Michelle A. Reed -- mreed@akingump.com -- Akin Gump Strauss Hauer & Feld & Spencer F. Smith -- spencer.smith@mcafeetaft.com -- McAfee & Taft. MASSAGE ENVY: 8th Circuit Flips Remand Order in Pirozzi Suit ------------------------------------------------------------ In the appellate case Mark Pirozzi; Keila Green, individually and on behalf of others similarly situated, Respondents, v. Massage Envy Franchising, LLC, Petitioner, Case No. 19-8014 (8th Cir.), the United States Court of Appeals for the Eighth Circuit (i) granted the Petition for Permission To Appeal, (ii) reversed the Order of Remand dated July 15, 2019, and (iii) denied the Plaintiffs' Motion for Remand. Plaintiffs Pirozzi and Green filed a class action lawsuit in Missouri state court, alleging that Massage Envy violated the Missouri Merchandising Practices Act ("MMPA") when advertisements for its one hour massage session failed to disclose that the session included 10 minutes to undress, dress, and consult with the therapist. A second amended petition filed in March 2019 expanded the class claims to include Massage Envy's one and one-half and two hour sessions. The petitions sought compensatory, statutory, and punitive damages and an award of attorneys' fees in unspecified amounts. Massage Envy filed a notice of removal on April 1, 2019, invoking federal diversity jurisdiction under the Class Action Fairness Act ("CAFA"). It alleged that, if liable to the class, it would potentially owe an aggregate of $2.885 million in compensatory damages, based on the value of 10 minutes of massage, $720,000 in attorneys' fees, assuming a 25% fee award, and $3.6 million in punitive fees, assuming an award of punitive damages equal to the compensatory damages and attorneys' fees. The Plaintiffs moved to remand the class action to state court, arguing the notice of removal was untimely. Without addressing that question, the district court remanded the case to state court, concluding it lacked subject matter jurisdiction because Massage Envy offers nothing but speculation that potential awards of attorneys' fees and punitive damages push the amount in controversy over $5 million, the minimum aggregate amount in controversy required to remove a class action under CAFA. Massage Envy petitions for permission to appeal the remand order. Reviewing de novo, the 8th Circuit concludes that the district court misapplied controlling Supreme Court and Eighth Circuit CAFA precedents. Accordingly, the Appellate Court (i) granted the Petition for Permission To Appeal, (ii) reversed the Order of Remand dated July 15, 2019, (iii) denied the Plaintiffs' Motion for Remand, and (iv) remanded to the district court for further proceedings not inconsistent with his Opinion. The Plaintiffs did not challenge Massage Envy's allegation that more than $5 million is in controversy; indeed, their motion to remand affirmatively alleged aggregate claims that "conservatively" put more than $12 million in controversy. The district court, exercising its "independent obligation to determine whether federal subject-matter jurisdiction exists, nonetheless reviewed the class action petition and the notice of removal. In remanding, the court stated that Massage Envy overstates the actual damages that the Plaintiffs could recover, and offers nothing but speculation as to the potential awards of attorneys fees and punitive damages. Given the nature of the plaintiffs' allegations, the Court concluded, it is more likely that a reasonable fact finder would not award several million dollars in punitive damages. The Appellate Court opines that the district court erred when it evaluated the MMPA violations alleged in the Plaintiffs' second amended petition and remanded the class action to state court because it is more likely that a reasonable fact finder would not award several million dollars in punitive damages. Even if that assessment of the Plaintiffs' class action claims was sound, considerations such as this go to the merits of the Plaintiffs' claims; they should not be smuggled into the jurisdictional inquiry. The Appellate Court notes that when the Plaintiffs have not challenged the removing Defendant's amount-in-controversy allegations, it is a pleading requirement, not a demand for proof. So long as Massage Envy has plausibly alleged that more than $5 million is in controversy, the case belongs in federal court unless it is legally impossible for the Plaintiff to recover that much. The Plaintiffs' class action petition explicitly sought to recover punitive damages. Massage Envy's notice of removal alleged that the Plaintiffs' second amended petition put $3.6 million in aggregated compensatory damages and attorneys' fees in controversy. The petition also alleged the class is entitled to punitive damages in an unstated aggregate amount. It is undisputed that punitive damages may be awarded for egregious violations of the MMPA. Given the awards of punitive damages upheld in prior MMPA cases, Plaintiffs' allegation that they are entitled to punitive damages in an unstated amount raised the amount in controversy to more than $5 million, whether or not they ultimately prove they are entitled to the punitive damages they claim, the Appellate Court cites. In determining the amount in controversy for CAFA removal purposes, the Appellate Court must accept the class' characterization. The remaining issue is the Plaintiffs' motion to remand, which the district court denied as moot. The Plaintiffs argued that Massage Envy's notice of removal was untimely because the class action allegations in their original petition, as well as in their second amended petition, put more than $5 million in controversy. The Appellate Court concludes that this contention is without merit. The 30-day removal period in Section 1446(b)(3) begins running upon receipt of the initial complaint only when the complaint explicitly discloses the Plaintiff is seeking damages in excess of the federal jurisdictional amount. If the complaint contains no such disclosure, the time limit begins to run when the removing Defendant receives from the Plaintiff an amended pleading, motion, order, or other paper from which the Defendant can unambiguously ascertain that the CAFA jurisdictional requirements have been satisfied. Neither the initial nor the second amended petition disclosed an aggregate amount in controversy or permitted Massage Envy to unambiguously ascertain that more than $5 million was in controversy. When Massage Envy investigated and filed a notice of removal based on the results of its own amount-in-controversy investigation, the notice was not untimely, the Appellate Court holds. A full-text copy of the 8th Circuit's Sept. 17, 2019 Opinion is available at https://is.gd/9VLpKA from Leagle.com. Thomas Blumeyer Weaver -- tweaver@armstrongteasdale.com -- for Petitioner. Anthony S. Bruning -- tony@bruninglegal.com -- for Respondent. Edward Morris Roth -- eroth@bruninglegal.com -- for Respondent. Michael B. Kass -- mkass@armstrongteasdale.comc -- for Petitioner. Michael J. Flannery -- mflannery@cuneolaw.com -- for Respondent. Richard Steven Cornfeld -- rcornfeld@cornfeldlegal.com -- for Respondent. Cynthia Juedemann -- cjuedemann@armstrongteasdale.com -- for Petitioner. Daniel S. Levy -- dlevy@cornfeldlegal.com -- for Respondent. Anthony S. Bruning, Jr. -- aj@bruninglegal.com -- for Respondent. Cynthia Ricketts -- cricketts@srclaw.com -- for Petitioner. Luanne Sacks -- lsacks@srclaw.com -- for Petitioner. Nathan J. Kunz -- nkunz@srclaw.com -- for Petitioner. MDL 2672: Protective Order Bid in Clean Diesel Suit Partly Granted ------------------------------------------------------------------ In the case IN RE: VOLKSWAGEN "CLEAN DIESEL" MDL MARKETING, SALES PRACTICES, PRODUCTS LIABILITY LITIGATION. This Order Relates To: Napleton, No. 3:16-cv-2086-CRB, Case No. 2672 CRB (JSC) (N.D. Cal.), Magistrate Judge Jacqueline S. Corley of the U.S. District Court for the Northern District of California granted in part and denied in part Bosch's request for a protective order. The Plaintiffs are preparing to take a Rule 30(b)(6) deposition of Bosch. Bosch, while agreeing to make witnesses available for that deposition, has requested a protective order to prevent the Plaintiffs from seeking testimony on six topics. Topic No. 1 covers Bosch's role in the creation, development, modification, or refinement of the acoustic function (whether known by that name or any other in German or another language) in Audi vehicles to correct or compensate for a noise problem in the vehicles upon ignition as described in paragraph 78 of the Third Amended Complaint. Bosch argues that this first topic is unwieldy and unduly burdensome because it effectively requests a corporate witness to testify about all steps that Bosch took to create, develop, modify, and refine the "acoustic function" in Audi vehicles over a 14-year period. The Plaintiffs counter that the topic is relevant because the Audi acoustic function formed the blueprint for the development of the defeat device software at issue in the case. Magistrate Judge Corley agrees with the Plaintiffs that Bosch's role in creating and developing the Audi acoustic function is relevant, given that the software at issue in this case may trace its origins to that function. The topic is overbroad however. No relevant modifications to the Audi function are alleged. Thus, testimony on Bosch's role in modifying and refining the function over the course of years (whether that be 14 years or five) is not relevant and would impose an unwarranted burden on Bosch. In light of the foregoing, the Judge instructs Bosch to provide a Rule 30(b)(6) witness to testify about the company's role in creating and developing the Audi acoustic function. But Bosch need not provide a witness to testify about its role in modifying and refining that function. Topic Nos. 16 and 17 generally cover the terms of engagement between Bosch and other automobile manufacturers. As framed by the Plaintiffs, the relevant question is whether Bosch retained tight control over the software it provided to Volkswagen. The answer to that question should be evident from Bosch's agreements with Volkswagen and from evidence of how those agreements were implemented. (Whether the agreements allowed Volkswagen to modify the software or not.) The terms of engagement between Bosch and other car manufacturers would at most provide a much less direct answer to the relevant question. Given Bosch's statement that it has entered into agreements with potentially 50 or more car manufacturers, this would be a significant undertaking. The burden on Bosch of providing the requested testimony outweighs the testimony's limited probative value. As a result, Bosch need not provide a witness to address Topic Nos. 16 and 17. Topic Nos. 46, 47, and 48, the last three disputed topics relate to a letter that Bosch sent to Volkswagen in 2008. Bosch explained in the letter that certain software Volkswagen had requested could qualify as a defeat device if used improperly. Bosch then requested that Volkswagen indemnify Bosch for any liability arising from the software's misuse. The Plaintiffs maintain that Volkswagen refused to sign the indemnity letter, but that Bosch still provided Volkswagen with the requested software. Bosch argues that the indemnity letter is not relevant because it concerned emissions software for gasoline powered cars, not the diesel powered cars at issue in the case. While that fact may lessen the letter's evidentiary value, the Magistrate holds that the letter -- and testimony about it -- is still relevant. The letter demonstrates that Bosch knew that its software could be used as a defeat device and that Bosch shared this knowledge with Volkswagen. From these facts, it becomes more plausible that Bosch also knew that its software for diesel powered cars could be used as a defeat device. Topic Nos. 46, 47, and 48 are relevant to the Plaintiffs' claims, and Bosch has not proven that the burden of providing a corporate witness to address these topics would outweigh the likely benefit of the testimony. As a result, Bosch must provide a corporate witness to testify on these topics. Bosch has asked for permission (i) to redact certain information from the parties' joint letter brief and from Exhibit 3 to the Plaintiffs' counsel's supporting declaration, and (ii) to file under seal in their entirety Exhibits 1 and 2 to the counsel's supporting declaration. Exhibit 1 is an internal Bosch document, from 2005, about the "system requirements" of certain Bosch software. Exhibit 2 is an internal Bosch email from 2009. For Exhibits 1 and 2 to counsel's declaration, the Judge finds that Bosch has not met the good cause standard to support sealing these exhibits in their entirety. As for Bosch's request to redact portions of the parties' letter brief and Exhibit 3 to the counsel's declaration, only some of the redactions are warranted. Consistent with prior Orders, she will permit Bosch to redact the names and job titles of employees who are nonparties in the action. Those redactions will help protect nonparty privacy rights, which is a good cause that supports the request. The other requested redactions will not be permitted. They are mostly of quotes, paraphrases, and citations to Exhibits 1 and 2 to the counsel's declaration. For the reasons she stated, Magistrate Judge Corley (i) Bosch's request to seal Exhibits 1 and 2 to the declaration of the Plaintiffs' counsel; (ii)) granted Bosch's request to redact the names and job titles of employees who are nonparties in the action; and (iii) denied Bosch's request to redact references in the parties' letter brief to Exhibits 1 and 2 to the counsel's declaration and to the 2008 indemnification letter. A full-text copy of the Court's Sept. 13, 2019 Order is available at https://is.gd/EJMIub from Leagle.com. Nicholas Benipayo, Plaintiff, represented by Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice, Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice & Robert B. Carey -- rob@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. James Babiak, Jonathon Horacek & Alfred Howe, Plaintiffs, represented by Robert B. Carey, Hagens Berman Sobol Shapiro LLP, pro hac vice & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Nadine Bonda, Plaintiff, represented by Adam M. Stewart -- astewart@shulaw.com -- Shapiro Haber & Urmy LLP & Thomas G. Shapiro -- tshapiro@shulaw.com -- Shapiro Haber and Urmy, LLP. Brian Connelly, Plaintiff, represented by Thomas G. Shapiro, Shapiro Haber and Urmy, LLP. Volkswagen Group of America, Inc., a New Jersey Corporation, Defendant, represented by Amie Adelia Vague -- avague@lightfootlaw.com -- Lightfoot Franklin & White, Casey Erin Lucier -- clucier@mcguirewoods.com -- McGuireWoods LLP, Charles J. Baker, III -- cbaker@wcsr.com -- Womble Carlyle Sandridge and Rice, Colin Hampton Tucker, Rhodes Hieronymus Jones Tucker & Gable, 100 W. Fifth Street, Suite 400, Tulsa, Oklahoma 74121-1100, Dana Woodrum Lang -- dlang@wcsr.com -- Womble Carlyle Sandridge and Rice, David M. Eisenberg -- eisenberg@bscr-law.com -- Baker, Sterchi, Cowden & Rice, LLC, Henry Buist Smythe, Jr. -- hsmythe@wcsr.com -- Womble Carlyle Sandridge and Rice, Howard Feller -- hfeller@mcguirewoods.com -- McGuireWoods LLP, William R. Scherer, Conrad and Scherer, LLP, 633 South Federal Highway Fort Lauderdale, FL 33301, J. Randolph Bibb, Jr. -- rbibb@lewisthomason.com -- Lewis, Thomason, King, Krieg & Waldrop, P.C., James K. Toohey -- tooheyj@jbltd.com -- Johns & Bell LTD, Jeffrey Lance Chase, Chase Kurshan Herzfeld & Rufin LLC, 354 Eisenhower ParkwaySuite 1100Livingston, NJ 07039. MDL 2819: End-Payors Move for Class Certification in Restasis MDL ----------------------------------------------------------------- The End-Payor Plaintiffs in the multidistrict litigation captioned IN RE RESTASIS (CYCLOSPORINE OPHTHALMIC EMULSION) ANTITRUST LITIGATION, MDL No. 18-MD-2819 (NG) (LB) (E.D.N.Y.), move the Court for an order certifying a class pursuant to Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure: All persons or entities who indirectly purchased, paid and/or provided reimbursement for some or all of the purchase price for Restasis, other than for resale, in Arizona, Arkansas, California, Colorado, the District of Columbia, Florida, Hawaii, Illinois, Iowa, Kansas, 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, Utah, Vermont*, West Virginia, and Wisconsin from May 17, 2014, through the present (in the case of Arkansas only, July 31, 2017), for consumption by themselves, their families, or their members, employees, insureds, participants, or beneficiaries. Excluded from the Class are: Allergan, its officers, directors, employees, subsidiaries, and affiliates; all federal and state government entities except for cities, towns, municipalities, or counties with self-funded prescription drug plans; all persons or entities who purchased Restasis for purposes of resale or directly from Allergan or its affiliates; fully insured health plans, i.e., plans that purchased insurance covering 100% of their reimbursement obligation to members; any "flat co-pay" consumers who purchased Restasis only via a fixed dollar co-payment that does not vary on the basis of the drug's status as branded or generic; pharmacy benefit managers; and all judges assigned to this case and any members of their immediate families. For states marked with an asterisk, the End-Payor Plaintiffs assert claims only on behalf of natural persons. The End-Payor Plaintiffs also ask the Court to appoint Plaintiffs 1199SEIU National Benefit Fund, 1199SEIU Greater New York Benefit Fund, 1199SEIU National Benefit Fund for Home Care Workers, 1199SEIU Licensed Practical Nurses Welfare Fund, American Federation of State, County and Municipal Employees District Council 37 Health & Security Plan, Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, Ironworkers Local 383 Health Care Plan, Self-Insured Schools of California, Sergeants Benevolent Association Health & Welfare Fund, and St. Paul Electrical Workers' Health Plan as Class Representatives. The End-Payor Plaintiffs further ask the Court to appoint Girard Sharp LLP, Lieff Cabraser Heimann & Bernstein, LLP, and Joseph Saveri Law Firm, Inc. as Co-Lead Counsel for the Class and to appoint Zwerling, Schachter & Zwerling, LLP as Liaison Counsel for the Class.[CC] The End-Payor Plaintiffs are represented by: Dena C. Sharp, Esq. Scott Grzenczyk, Esq. Tom L. Watts, Esq. GIRARD SHARP LLP 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dsharp@girardsharp.com scottg@girardsharp.com tomw@girardsharp.com - and - Eric B. Fastiff, Esq. David T. Rudolph, Esq. Adam Gitlin, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: efastiff@lchb.com drudolph@lchb.com agitlin@lchb.com - and - Kathleen M. Konopka, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 E-mail: kkonopka@lchb.com - and - Joseph R. Saveri, Esq. Ryan J. McEwan, Esq. Kyla J. Gibboney, Esq. V Chai Oliver Prentice, Esq. JOSEPH SAVERI LAW FIRM, INC. 601 California Street, Suite 1000 San Francisco, CA 94108 Telephone: (415) 500-6800 Facsimile: (415) 395-9940 E-mail: jsaveri@saverilawfirm.com rmcewan@saverilawfirm.com kgibboney@saverilawfirm.com vprentice@saverilawfirm.com - and - Dan Drachler, Esq. Robert S. Schachter, Esq. Sona R. Shah, Esq. ZWERLING, SCHACHTER & ZWERLING, LLP 41 Madison Avenue, 32nd Floor New York, NY 10010 Telephone: (212) 223-3900 Facsimile: (212) 371-5969 E-mail: ddrachler@zsz.com rschachter@zsz.com sshah@zsz.com MEDICAL MOBILITY: Court Denies Vilanova Class Certification Bid --------------------------------------------------------------- In the class action lawsuit styled as Michel Vilanova, the Plaintiff, v. Mobility Medical Transport, Inc., and others, Defendants, the Defendants, Case No. 1:19-cv-22391-RNS (S.D. Fla.), the Hon. Judge Robert N. Scola, Jr. entered an order on Oct. 7, 2019, denying a motion for class certification and dismissing the case. The Court said conditional FLSA class certification is not the same as class certification under [Fed.R.Civ.P.] Rule 23(b), which is what Plaintiff's motion seeks. The Court pointed out that in La Chapelle v. Owens-Illinois, Inc., the former Fifth Circuit considered whether a plaintiff could bring a class action under Rule 23 for a violation of the Age Discrimination in Employment Act (ADEA). Section 7(b) of the ADEA incorporates by reference specific provisions of the FLSA statute and directs that the ADEA "shall be enforced in accordance with the powers, remedies, and procedures provided in [the FLSA statute]." The Court found that there is a "fundamental, irreconcilable difference between the class action described in Rule 23 and that provided for by FLSA Sec. 16(b)." A Rule 23 class is an "opt out" class, whereas an FLSA class is an "opt in" class. Because Congress created a unique procedure, distinct from Rule 23, for a collective action under the FLSA, these two forms of class actions are "mutually exclusive and irreconcilable." The holding in La Chapelle related to ADEA claims. The Court finds that the Fifth Circuit's holding in La Chapelle has even greater applicability in the Vilanova case where the Plaintiff is seeking to certify a Rule class in an FLSA action. Accordingly, the Court denies the Plaintiff's motion for class certification as improper in an FLSA action. On September 4, 2019, the Court directed the Plaintiff to file a motion for default judgment or a notice of joint liability by September 18. The Court warned the Plaintiff that failure to file the required motion or notice within the specified time would result in dismissal without prejudice. To date, the Plaintiff has not filed the required motion or notice. Therefore, the Court dismisses this case without prejudice. The Clerk is directed to close the case. All pending motions, if any, are denied as moot.[CC] MEDICAL NECESSITIES: Jenkins-Queen's Bid to Certify Class Granted ----------------------------------------------------------------- In the lawsuit entitled CHARLES JENKINS-QUEEN, Individually and on behalf of all other similarly situated current and former employees v. MEDICAL NECESSITIES AND SERVICES, LLC, a Tennessee Corporation, Case No. 3:18-cv-01294 (M.D. Tenn.), the Hon. Eli Richardson grants conditional certification of a class, pursuant to Section 216(b) of the Fair Labor Standards Act: all current and former hourly-paid delivery technicians of Defendant who worked on-call hours between July 2017 and August 2018. Judge Richardson also rules that: 1. Plaintiff's counsel is authorized to serve the Notice form and the Consent to Join form attached to the Order to the Class members; 2. within 30 days of this Order, the Defendant shall provide the names, last known addresses, and telephone numbers for the individuals who meet the criteria above and who have not yet consented to join this action; 3. Plaintiff's counsel shall send the Notice and Consent to Join forms to the individuals on the list provided by Defendants, by first class mail, within 30 days of receiving the list from the Defendant; 4. All Consent to Join forms will be filed with the Court on the date they are received by the Plaintiff's counsel or, if received on a non-business day, on the first business day after they are received by the Plaintiff's counsel; 5. the opt-in period shall be for 45 days, which shall start on the date the Plaintiff receives the contact information from the Defendant. During the notice period, it is the responsibility of counsel for the Plaintiff to contact such current and former employees of the Defendant and provide to them the Notice and Consent to Join forms; 6. within two (2) business days of mailing the Notice and Consent to Join forms, the Plaintiff's counsel shall file a Notice with the Court indicating the date that the Notice and Consent to Join forms were mailed; and 7. Defendant retains all defenses, including all objections to a three (3) year statute of limitations period and the right to seek decertification or to object to and oppose final certification.[CC] MIDLAND CREDIT: Faces Hague Suit in District of New Jersey ---------------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is captioned as LORI HAGUE, Individually and on behalf of all others similarly situated, the Plaintiff, vs. MIDLAND CREDIT MANAGEMENT, INC., the Defendant, Case No. 3:19-cv-18054-FLW-ZNQ (D.N.J., Sept 17, 2019). The suit alleges violation of the Fair Debt Collection Act. The case is assigned to the Hon. Judge Freda L. Wolfson. Midland Credit was founded in 1953. The company's line of business includes extending credit to business enterprises for relatively short periods.[BN] Attorneys for the Plaintiff are: Yitzchak Zelman, Esq. Ari Hillel Marcus, Esq. MARCUS ZELMAN, LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (347) 526-4093 Facsimile: (732) 298-6256 E-mail: yzelman@marcuszelman.com ari@marcuszelman.com MIDLAND FUNDING: Arbitration Compelled in Huser FDCPA Lawsuit ------------------------------------------------------------- In the case, JONATHAN HUSER, and STEPHEN WELCH on behalf of themselves and the class members, Plaintiffs, v. MIDLAND FUNDING, LLC; MIDLAND CREDIT MANAGEMENT, INC. and ENCORE CAPITAL GROUP, INC., Defendants, Case No. 17-cv-04490 (N.D. Ill.), Judge Joan B. Gottschall of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Defendants' motion to compel arbitration of Huser's Fair Debt Collection Practices Act ("FDCPA") claims. Huser opened the consumer credit card account at issue with Juniper Bank Delaware on Feb. 7, 2006. Juniper renamed itself Barclay's on May 25, 2006. Barclay's sold Huser's account to defendants as one of a group of allegedly delinquent accounts on Dec. 14, 2012. The Plaintiffs allege that the Defendants sent them misleading form dunning letters seeking to collect credit card debts. Huser's claims stem from a collection letter dated March 8, 2017. The original complaint filed June 14, 2017, named Mary T. Janetos as the sole Plaintiff. The Defendants did not answer the original complaint before it was amended on July 20, 2017. The First Amended Complaint (FAC) added Huser as Plaintiff. The Defendants answered the FAC on Aug. 30, 2017, asserting as an affirmative defense that the Plaintiffs' claims "may be" subject to a binding arbitration clause. Janetos voluntarily dismissed her claims that same day, Aug. 30, 2017, leaving Huser as the sole Plaintiff. The Defendants have been negotiating with Huser about the arbitration of his claims since at least April 2018. The Plaintiffs' lawyer expressed confusion about the fact that the agreement involved Juniper rather than Barclay's, responding that the Defendants would need to provide an affidavit before Huser would agree to arbitrate his claims. One was immediately provided. Instead the parties attempted to settle this and three other cases pending in the Court from July to September 2018. The Plaintiffs filed a motion in Pierre v. Midland Credit Management, Inc., to reassign the case and three other cases for the purpose of holding a settlement conference before a magistrate judge. Conferences were held in July and September 2018, but they did not produce a settlement. The Plaintiffs withdrew their motion to reassign the case on Oct. 3, 2018. The record shows that two things happened while settlement efforts were ongoing. First, the Defendants sent Huser an offer of judgment. Second, Huser sought and obtained leave to filed his second amended complaint (SAC) on July 12, 2018. The SAC added Stephen Welch as a named Plaintiff. The Defendants answered the SAC on Aug. 23, 2018. For the first time in the case, the answer demanded a jury trial. The Plaintiffs moved to strike the Defendants' jury demand on Sept. 5, 2018. The Court granted the motion on Nov. 2, 2018. The Defendants then filed the pending motion to compel arbitration in December 2018. They sought to enforce an arbitration clause in a credit card member agreement between Huser and Juniper. Huser and Welch respond that the Defendants have waived their right to compel arbitration by participating in the case and that his claims are outside the scope of the applicable arbitration clause. Judge Gottschall finds that in opposing the Defendants' motion, Huser effectively concedes that the three requirements of compelling arbitration are present. Huser of course refuses to arbitrate, satisfying the third element, and he does not suggest that the credit agreement is unenforceable. Neither does he deny that the Defendants, as successors by assignment, can enforce the agreement. That leaves the question whether the dispute falls within the arbitration clause's scope. An evaluation of the evidence the Court now has before it leads to the finding that Huser experienced minimal, if any, prejudice from the Defendants' initial five-month delay in moving to compel arbitration. Considering the facts in their totality, Huser has not carried his burden to establish that the Defendants forfeited their contractual right to arbitrate this dispute. The Judge therefore will grant the Defendant's motion. The Defendants ask the Court to compel Huser to arbitrate his claims on an individual basis and dismiss his class action claims. The agreement contains specific language supporting their request, and Huser does not discuss this aspect of the motion in his response. The agreement declares that claims made and remedies sought as part of a class action are subject to arbitration on an individual basis, not on a class action or representative basis. Because there is no doubt that the arbitration clause covers Huser's class claims, the Judge compels individual arbitration. For the reasons stated, Judge Gottschall concludes that the Defendants have not waived or forfeited their contractual right to arbitrate this dispute. The Judge granted the motion to compel and ordered Huser to arbitrate his claims on an individual basis. His claims in the Court are stayed. A full-text copy of the Court's Sept. 13, 2019 Memorandum Opinion and Order is available at https://is.gd/2UBHci from Leagle.com. Jonathan Huser & Stephen Welch, on behalf of themselves and the class members described below, Plaintiffs, represented by Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin LLC, Cassandra P. Miller, Edelman, Combs, Latturner & Goodwin LLC, Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin LLC, James O. Latturner, Edelman, Combs, Latturner & Goodwin LLC & Paul Michael Waldera, Edelman, Combs, Latturner & Goodwin Llc. Midland Funding, LLC, Midland Credit Management, Inc. & Encore Capital Group, Inc., Defendants, represented by David M. Schultz -- dschultz@hinshawlaw.com -- Hinshaw & Culbertson LLP, Todd Philip Stelter -- tstelter@hinshawlaw.com -- Hinshaw & Culbertson LLP, & Brandon S. Stein -- bstein@hinshawlaw.com -- Hinshaw & Culbertson LLP. MIDLAND FUNDING: Faces Valentine et al. Suit in New Jersey ---------------------------------------------------------- A class action lawsuit has been filed against Midland Funding, LLC, et al. The case is captioned as CASSANDRA A. VALENTINE and ERLINDA G. FALDAS, Individually and on behalf of those similarly situated, the Plaintiff, vs. MIDLAND FUNDING, LLC, MIDLAND CREDIT MANAGEMENT, INC., and JOHN DOES 1 to 10, the Defendants, Case No. 2:19-cv-18034-ES-MAH (D.N.J., Sept. 16, 2019). The suit alleges violation of the Fair Debt Collection Act. The case is assigned to the Hon. Judge Esther Salas. Midland Funding is a large debt buyer of unpaid debt.[BN] Attorneys for the Plaintiff are: Yongmoon Kim, Esq. Kim Law Firm LLC 411 Hackensack Ave Ste 701 Hackensack, NJ 07601 Telephone: (201) 273-7117 Facsimile: (201) 273-7117 E-mail: ykim@kimlf.com MONEY SOURCE: Martinez's Bid to Certify Class Shelved ----------------------------------------------------- In the class action lawsuit styled as Roberta Martinez, the Plaintiff, v. The Money Source, Inc., the Defendant, Case No. 2:19-cv-00060-SVW-E (C.D. Cal.), the Hon. Judge Stephen V. Wilson entered an order on Oct. 7, 2019, taking a motion to certify class filed by Plaintiff under submission.[CC] As reported by Class Action Reporter, the Plaintiff seeks to recover overtime pay under the Fair Labor Standards Act and the California Labor Code. According to the complaint, the Defendant provides banking services, and specifically mortgage services, to their customers in California and throughout the United States. TMS offers eligible employees, such as Plaintiff, the ability to work remotely in certain situations. The Defendant employed the Plaintiff as non-exempt, hourly mortgage underwriter. Underwriters, such as Plaintiff, primarily worked from their home offices and connected to Defendant's computer systems via a remote virtual private network. The Defendant requires its hourly Underwriters to work a full-time schedule, including overtime. However, Defendant does not compensate the Underwriters for all work performed; instead, Defendant required Underwriters, such as Plaintiff, to only record 40 hours per week, regardless of how many hours they actually worked, unless permission was granted by management. Consequently, the Plaintiff and Defendant's other Underwriters were routinely under compensated and deprived of overtime pay, in violation of state and federal labor laws. The Defendant's Underwriters were also deprived of meal and rest breaks as required by federal and state labor laws due to the Defendant's common unlawful policies and practices. The Defendant knew or could have easily determined the actual number of overtime hours worked by the Underwriters, and Defendant could have properly compensated Plaintiffs and the putative Collective and Class for this work, but the Defendant did not, the lawsuit says.[BN] Attorneys for the Plaintiffs are: Kevin J. Stoops, Esq. SOMMERS SCHWARTZ LAW OFFICES Telephone: (248) 784-6613 Facsimile: (248) 936-2143 E-mail: kstoops@sommerspc.com Attorneys for the Defendants are: Erica P. Gruver, Esq. POLSINELLI LLP 2049 Century Park E, Ste 2900 Los Angeles, CA 90067-3221 Telephone : (310) 203-5329 Facsimile: (310) 387-5426 NATIONS RECOVERY: MJ Sues Over Illegal and Unconsented Calls ------------------------------------------------------------ M.J., a minor, by and through his legal guardian VALBONA LAHU, on behalf of himself and all others similarly situated v. NATIONS RECOVERY CENTER, INC., Case No. 2:19-cv-18260 (D.N.J., Sept. 23, 2019), alleges that the Defendant has violated the Telephone Consumer Protection Act by contacting the Plaintiff and Class Members on their cellular telephones via an automatic telephone dialing system and/or by using an artificial or prerecorded voice, without these individuals' prior express consent. Nations Recovery Center, Inc. is a 'Domestic Profit Corporation' registered in and with its principal place of business in the State of Georgia, also registered as a 'Foreign For-Profit Corporation' in the State of New Jersey. NRC is a debt collection agency located in Atlanta, Georgia.[BN] The Plaintiff is represented by: Yongmoon Kim, Esq. Catherine Rhy, Esq. KIM LAW FIRM LLC 411 Hackensack Avenue, Suite 701 Hackensack, NJ 07601 Telephone: (201) 273-7117 E-mail: ykim@kimlf.com crhy@kimlf.com NATIONSTAR MORTGAGE: Settlement in Pemberton Suit Has Initial OK ---------------------------------------------------------------- In the class action lawsuit styled as MICHAEL PEMBERTON and SANDRA COLLINS PEMBERTON, individually and on behalf of others similarly situated, the Plaintiffs, vs. NATIONSTAR MORTGAGE, LLC, a Federal Savings Bank, the Defendant, Case No. 3:14-cv-01024-BAS-MSB (S.D. Cal.), the Hon. Judge Cynthia Bashant entered an order on Oct. 9, 2019: 1. granting the Parties' joint motion for preliminary approval of a class action settlement; 2. conditionally certifying a class for settlement purposes only: "all persons who, according to Nationstar's reasonably available computerized computer records, had or have Option ARM loans serviced by Nationstar and made payments to Nationstar in any tax year from 2010 - 2018"; 3. appointing Michael Pemberton and Sandra Collins Pemberton as Class Representatives; 4. appointing the Law Office of David J. Vendler and Michael R. Brown, APC, as Class Counsel to represent the Class. 5. preliminarily approving the Settlement Agreement and the terms and conditions of Settlement, subject to further consideration at a Final Approval Hearing; and 6. holding a Final Settlement Approval Hearing on January 13, 2020, at 11:00 a.m., in the Courtroom of the Hon. Cynthia Bashant, United States District Court for the Southern District of California, Courtroom 11 4B (4th Floor – Edward J. Schwartz United States Courthouse), 221 West Broadway, San Diego, CA 92101, for the following purposes: a. Finally determining whether the Class meets all applicable requirements of Rule 23 of the Federal Rules of Civil Procedure and whether the Class should be certified for the purposes of effectuating the Settlement; b. Finally determining whether the proposed Settlement of the case on the terms and conditions provided for in the Settlement Agreement is fair, reasonable, and adequate and should be approved and ordered by the Court; and c. Ruling upon such other matters as the Court may deem just and appropriate.[CC] Class Members must provide a copy of the written objections to the Class Counsel and to counsel for Defendant Nationstar at: Class Counsel: LAW OFFICE OF DAVID J. VENDLER 2700 South Oak Knoll Avenue San Marino, CA 91108 - and - Michael R. Brown, APC 2030 Main Street, Suite 550 Irvine, CA 92614 Counsel for Defendant Nationstar Mortgage LLC: Erik Wayne Kemp, Esq. John B. Sullivan, Esq. Adam Vukovic, Esq. Mary Kate Kamka, Esq. SEVERSON & WERSON, APC One Embarcadero Center, Suite 2600 San Francisco, CA 94111 NAVIGANT CONSULTING: Merger-Related Suits to be Withdrawn --------------------------------------------------------- Navigant Consulting, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on October 3, 2019, that the plaintiffs in the Guidehouse LLP merger related lawsuits have agreed to withdraw their complaints. On August 2, 2019, Navigant Consulting, Inc., a Delaware corporation (the "Company"), entered into an Agreement and Plan of Merger, by and among Guidehouse LLP, a Delaware limited liability partnership ("Parent"), Isaac Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent ("Sub"), and the Company (as amended from time to time, the "Merger Agreement"). The Merger Agreement provides for, among other things, Sub to merge with and into the Company, causing the Company to become a wholly owned subsidiary of Parent (the "Merger"). Lawsuits challenging the merger were filed on September 4, 2019, September 9, 2019, and September 10, 2019, in the United States District Court for the District of Delaware. The lawsuits, filed by purported stockholders of the Company, are captioned Rosenblatt v. Navigant Consulting, Inc., et al., No. 1:19-cv-01680, filed as a putative class action on behalf of stockholders of the Company, and Stein v. Navigant Consulting, Inc., et al., No. 1:19-cv-01652, and Gottlieb v. Navigant Consulting, Inc., et al., No. 1:19-cv-1693, both filed as individual actions. The lawsuits allege that the preliminary proxy statement filed on August 30, 2019, relating to the transactions contemplated by the merger agreement, omitted material information in violation of Sections 14(a) and 20(a) of the Exchange Act and certain rules promulgated thereunder, rendering the preliminary proxy statement false and misleading. The lawsuits name as defendants the Company and its directors and seek, among other relief, an order enjoining completion of the merger. In addition, by letter dated September 19, 2019, another putative stockholder of the Company, Steven Makowsky, alleged that the definitive proxy statement filed on September 12, 2019 (the "Proxy Statement"), made misrepresentations and omitted material information in violation of Sections 14(a) and 20(a) of the Exchange Act. The Company believes that the claims asserted by the plaintiffs and Mr. Makowsky are without merit. However, in order to moot the plaintiffs' and Mr. Makowsky's unmeritorious disclosure claims, alleviate the costs, risks and uncertainties inherent in litigation and provide additional information to its stockholders, the Company has determined to voluntarily supplement the Proxy Statement. Plaintiffs and Mr. Makowsky agreed that the supplemental disclosures will moot their claims and have agreed to withdraw their complaints and demands, respectively. A copy of the supplemental disclosure is available at https://bit.ly/2AYVSJn. Navigant Consulting, Inc. is a global professional services company. The Company serves clients in the healthcare, energy and financial services industries. It operates through three segments. The Healthcare segment provides consulting services and business process management services. The Energy segment provides advisory solutions in business strategy and planning, distributed energy resources and renewables, energy efficiency and demand response and grid modernization The Financial Services Advisory and Compliance segment provides strategic, operational, valuation, risk management, investigative and compliance advisory services to clients primarily in the financial services industry. The company is based in Chicago, Illinois. NEW YORK: Settlement in Brooks Civil Rights Suit Has Final Approval ------------------------------------------------------------------- In the case captioned DERRICK BROOKS, CLIFTON DEMECO, and BRIAN BLOWERS, on behalf of themselves and all others similarly situated, Plaintiffs, v. SAMUEL D. ROBERTS, Commissioner of the New York State Office of Temporary and Disability Assistance, Defendant, Case No. 1:16-CV-1025 (N.D. N.Y.), Judge David N. Hurd of the U.S. District Court for the Northern District of New York granted the parties' joint motion for final approval of the class action settlement. On Aug. 19, 2016, the named Plaintiffs commenced the action seeking relief on behalf of themselves and a putative class of fellow New York State residents receiving Supplemental Nutrition Assistance Program ("SNAP") benefits who, since Jan. 1, 2016, have had, are now having, or will have their benefits terminated for allegedly failing to meet a work requirement after receiving benefits for three out of 36 months. The putative class action named Defendant Samuel D. Roberts, in his official capacity as Commissioner of the New York State Office of Temporary and Disability Assistance, the agency designated by New York State to administer the federal SNAP program. The Complaint sought injunctive relief ordering defendant to: refrain from terminating SNAP benefits pursuant to the able-bodied adults without dependents ("ABAWDs") rules without complying with Due Process and federal laws and regulations governing SNAP; provide adequate and timely notices of SNAP termination to those whom defendant deems subject to the ABAWD rules; provide adequate preliminary notices of ABAWD status and a comprehensive individual assessment process for those SNAP recipients subject to the ABAWD time limit; cease terminations of SNAP benefits pursuant to the ABAWD rules until such time as adequate and timely termination notices, adequate and timely preliminary notices, and a comprehensive individual assessment process were in use; and restore SNAP benefits, provide appropriate back benefits, and resolve assessed overpayments to individuals wrongfully terminated from SNAP pursuant to the ABAWD rules. In a Memorandum-Decision & Order issued on May 5, 2017, the Plaintiffs' motions for class certification and for a preliminary injunction were denied while the Defendant's motion to dismiss was denied in part and granted in part, granting only that portion of the Defendant's motion as to the Plaintiffs' due process claims regarding notice of ABAWD status. Thereafter, the parties worked toward negotiating terms of a final settlement that would provide significant relief to members of the proposed class. On June 14, 2019, the parties advised the Court they had reached a settlement and moved for preliminary approval of a final class action settlement agreement. They thereafter submitted a proposed notice to be distributed. On July 8, 2019, the Court approved the parties' proposed Notice to the Class of the Settlement Agreement and directed the parties to distribute the Notice in accordance with the parties' proposed terms. On Sept. 17, 2019, at 1:00 p.m., a Fairness Hearing was conducted on the record in Utica, New York. After considering these facts, the parties' submissions and statements on the record, and the factors set forth in Rule 23 of the Federal Rules of Civil Procedure, Judge Hurd finds that the Settlement Agreement is fair, reasonable, and adequate to the class and subclass. Accordingly, he granted the parties' joint motion for final approval of the class action settlement. The certified class is defined as all current or former New York State Supplemental Nutrition Assistance Program ("SNAP") benefits recipients who had their SNAP benefits reduced or terminated between Jan. 1, 2016, and Dec. 31, 2018, for failing to meet a work requirement applicable to able-bodied adults without dependents, pursuant to 7 U.S.C. Section 2015(o)(2) or 7 C.F.R. Sections 273.24(a)(1) and (b). A full-text copy of the Court's Sept. 17, 2019 Order is available at https://is.gd/P8pAyr from Leagle.com. Derrick Brooks, on behalf of himself and all others similarly situated, Clifton DeMeco, on behalf of himself and all others similarly situated & Brian Blowers, on behalf of himself and all others similarly situated, Plaintiffs, represented by Marc Cohan -- info@nclej.org -- National Center for Law & Economic Justice, Inc., Petra T. Tasheff , National Center for Law & Economic Justice, Inc., Saima A. Akhtar, Empire Justice Center, Susan C. Antos -- santos@empirejustice.org -- Empire Justice Center, Gregory Lee Bass, National Center for Law & Economic Justice, Inc. & Katherine M. Deabler-Meadows, National Center for Law & Economic Justice, Inc. Samuel D. Roberts, as Commissioner of the New York State Office of Temporary and Disability Assistance, Defendant, represented by Omar J. Siddiqi, New York City Law Department & C. Harris Dague, New York State Attorney General. OTIS ELEVATOR: Obtains Summary Judgment Dismissing Gorss' TCPA Case ------------------------------------------------------------------- The United States District Court for the District of Connecticut issued a Ruling and Order granting Defendant’s Motion to Dismiss the case captioned GORSS MOTELS, INC., Plaintiff, v. OTIS ELEVATOR COMPANY, Defendant. No. 3:16-cv-1781 (VAB). (D. Conn.) Gorss Motels, Inc., has sued the Otis Elevator Company for allegedly sending unsolicited facsimiles in violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act (TCPA). The Otis Elevator Company has moved for summary judgment on all of Gorss Motels's claims. STANDARD OF REVIEW A court will grant a motion for summary judgment if the record shows no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. The non-moving party may defeat the motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. To protect consumers from unsolicited fax advertisements, Congress passed the Telephone Consumer Protection Act of 1991 and amended it with the Junk Fax Prevention Act in 2005. The Telephone Consumer Protection Act of 1991 forbids the use of any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless certain exceptions are met. An unsolicited advertisement is any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise. An unsolicited fax advertisement is only permissible when (1) the unsolicited advertisement is from a sender with an established business relationship with the recipient (2) the sender obtained the recipient's fax number either via voluntary communication from the recipient or from a directory, advertisement, or site on the internet to which the recipient agreed to make the number publicly available and (3) the unsolicited advertisement contains an opt-out notice meeting the requirements set forth in Section 227(b)(2)(D). Standing Article III Standing The irreducible constitutional minimum of standing in federal court requires: (1) injury in fact (2) that is fairly traceable to a defendant's challenged conduct and (3) that is likely to be redressed by a favorable decision. Otis Elevator Company argues that Gorss Motels lacks Article III standing because it cannot demonstrate a causal connection between the injury and the Fax. Otis Elevator Company asserts that because Gorss Motels conceded that it did not matter what language was in the fax's disclosures as Steven Gorss allegedly never read any of the faxes received from Wyndham, believing that they were all junk faxes the content of the allegedly deficient disclosures in the fax could not have caused a concrete and particularized injury. According to Otis Elevator Company, the allegedly inadequate notices made no difference to Steven Gorss as he had no intention of opting out, but instead collected the faxes with an eye towards litigation. Gorss Motels argues that Otis Elevator Company's argument is a red herring because it ignores the harms that federal courts have recognized as giving rise to concrete injury in the TCPA fax context in dozens of post-Spokeo cases, i.e., forcing unwitting recipients to bear the costs of the paper and ink, monopolizing the fax line, and preventing businesses from receiving legitimate messages. Gorss Motels then argues that it is undisputed that the Fax was transmitted to and printed from Gorss Motels's fax machine, thus costing Gorss Motels toner, ink, paper and maintenance. Thus, Gorss Motels asserts that, in line with Spokeo, it need not argue any additional harm to satisfy Article III standing. Otis Elevator Company notes the Second Circuit in Strubel, 842 F.3d 181, agreed there was no Article III jurisdiction with respect to two alleged deficiencies, including the bank's failure to include a disclosure regarding its obligation to comply within 30 days. Otis Elevator Company asserts that the Strubel court would similarly find no Article III violation here with the alleged failures of the opt-out notice on the Fax, which provided clear opt-out instructions that would have been honored within 30 days, had Gorss ever wanted to follow those instructions. The Court disagrees. Although the Second Circuit in Strubel did find that the plaintiff lacked standing on two claims, it was because the claims failed to demonstrate concrete injury, not because there was no causal connection between the injury and the complained-of conduct. Absent clear guidance from Strubel, and with the ability to resolve this case without addressing the issue of standing, however, the Court need not and will not address that issue here. Even if there is Article III standing, the case will be dismissed for other reasons discussed below. The Court will not grant summary judgment on this basis. Prudential Standing Otis Elevator Company also asserts that Gorss Motels lacks prudential standing and does not fall within the TCPA's zone of interests, because Gorss Motels is a professional plaintiff. Gorss Motels responds that it purchased its fax machine for legitimate purposes, and that whether it is a professional plaintiff, because it forwarded faxes to its attorneys, has no bearing on whether or not Otis Elevator Company violated the TCPA. The Court agrees. For the same reasons as discussed with Article III standing, the Court will not grant summary judgment on this basis. TCPA Liability In addressing the issue of TCPA liability, the Court begins its analysis with the FCC's solicited-fax rule, and after determining that it no longer applies, turns to whether the Fax here was solicited. Because this issue ultimately is dispositive, the Court need not and does not separately address the issue of whether the Otis Elevator Company was, in fact, the sender of the Fax. The Otis Elevator Company then argues that Gorss Motels gave WSSI permission to send the Fax. Gorss Motels provided its fax number to Wyndham in its several documents, notably Gorss's 2014 Franchise Agreement and the Property Improvement Plan Report. The 2014 Franchise Agreement addressed the Approved Supplier program and provided that affiliates may offer assistance in purchasing approved items conforming to system standards. According to the Otis Elevator Company, WSSI was doing exactly what Gorss contractually agreed that Wyndham entities could do: provide assistance to franchisees with purchasing items from Approved Suppliers that would conform to the Wyndham system/brand standards. And Gorss Motels continued to provide its fax number to Wyndham, despite knowing that it was receiving faxes from WSSI. According to the Otis Elevator Company, merely providing a fax number by itself is sufficient for finding permission or invitation to send marketing faxes. Because Gorss gave express permission to Wyndham for WSSI faxes to be sent to its fax number, Otis maintains that no opt-out language was required, and so the Fax did not violate the TCPA. The Otis Elevator Company also argues that, assuming it was the sender, it had express written consent to send the Fax. According to the Otis Elevator Company, when Steven Gorss, on behalf of Gorss Motels, signed a Property Improvement Plan Report promising to make certain corrections to the property in order to renew its 2014 Franchise Agreement, this agreement included Gorss Motels's contact information for use by Wyndham's approved vendors for the purpose of their offering Gorss Motels products and services" involved in Wyndham-required repairs and updates to the Gorss Motels property. The Court agrees. The TCPA's specific disclosure and opt-out requirements then only apply to unsolicited facsimiles. In answering this question, the critical issue is not whether a franchisor-franchisee relationship itself constitutes consent or prior express permission, at least in this case. Instead, there are two agreements entered into by Gorss Motels that ultimately provide the requisite "prior express invitation or permission. First, the 2014 Franchise Agreement specifically addressed WSSI's Approved Supplier program, which provided that Wyndham affiliates may offer assistance in purchasing approved systems conforming to system standards. Second, the Property Improvement Plan Report stated that Gorss's contact information could be used by Wyndham's approved vendors for the purpose of their offering Gorss products and services. Although Gorss Motels argues that these documents do not constitute prior express permission, but instead implied permission, in both of these signed agreements, Gorss Motels affirmatively opted into receiving faxes. Indeed, Gorss Motels executed both the 2014 Franchise Agreement and the Property Improvement Plan Report and listed its fax number and agreed to receive information from its franchisor's affiliates and approved vendors. Significantly, Otis Elevator Company is one of these affiliates and approved vendors. The Property Improvement Plan Report identified Gorss Motels's property as in need of elevator repairs, repairs to be completed within one year. The Gorss Motels property had an elevator from the Otis Elevator Company. As a result, the Otis Elevator Company would be the approved vendor for the required repairs. Because Gorss Motels has conceded that no limitation was placed on the Property Improvement Plan Report as to how it could be contacted, communication by facsimile was permissible. A recent summary judgment decision in a TCPA case involving Gorss Motels, from another Circuit and, although not binding on this Court, nevertheless is instructive. In Gorss Motels, Inc. v. Safemark Systems, 931 F.3d 1094, 1096 (11th Cir. 2019), the faxes did not violate the prohibition on unsolicited faxes because the hotels had provided prior express permission to receive faxes from the Defendant in their franchise agreement. Although Gorss Motels similarly argued that it never provided prior express permission to receive faxes from Safemark, another Wyndham approved vendor, their franchise agreements constitute an `official act of allowing' Safemark the liberty to send them faxes. Because the franchise agreements contemplated that the hotels could receive optional assistance with purchasing items' from Wyndham and its affiliates by providing their fax numbers in their agreements, the hotels invited the assistance or advertisements to come by fax. Significantly, testimony about what Steven Gorss subjectively thought is immaterial because the hotels had already provided their express permission in their franchise agreements. Here, as in Safemark, Gorss Motels did not rescind the permission provided in both the 2014 Franchise Agreement and the Property Improvement Plan Report for Wyndham affiliates to contact it. Both documents signed and executed by Gorss Motels authorized contact by facsimile, making the Fax here a solicited one. Because the Fax was solicited, no opt-out language was required. And because the Fax was solicited, the Otis Elevator Company did not violate the TCPA. The Court will dismiss Gorss Motels's TCPA claim against the Otis Elevator Company. The Otis Elevator Company's motion for summary judgment is GRANTED. A full-text copy of the District Court’s September 30, 2019 Ruling and Order is available at https://tinyurl.com/y65gn3rl from Leagle.com. Gorss Motels Inc., a Connecticut corporation, individually and as the representative of a class of similarlysituated persons, Plaintiff, represented by Aytan Y. Bellin - aytan.bellin@bellinlaw.com - Bellin & Associates LLC, Brian J. Wanca - bwanca@andersonwanca.com - Anderson & Wanca, pro hac vice & Ryan Michael Kelly - rkelly@andersonwanca.com - Anderson & Wanca. Otis Elevator Company, a New Jersey Corporation, Defendant, represented by Becca J. Wahlquist - bwahlquist@swlaw.com - Snell & Wilmer L.L.P., Jeffrey J. White - jwhite@rc.com - Robinson & Cole, LLP & Kathleen Elizabeth Dion - Kdion@rc.com - Robinson & Cole, LLP. OXNARD, CA: Removes Alvarez et al. Suit to C.D. California ---------------------------------------------------------- The Defendant in the case of JOSE ALVAREZ; KAREEM DAVIS; ETHEL HERRERA; CHAD SHOEMAKER; and LEO TAPIA individually and on behalf of all others similarly situated, Plaintiffs v. CITY OF OXNARD; and DOES 1 through 10, Defendants, filed a notice to remove the lawsuit from the Superior Court of the State of California, County of Ventura (Case No. 56-2019-00531510-CU-OE-VTA) to the U.S. District Court for the Central District of California on September 17, 2019. The clerk of court for the Central District of California assigned Case No. 2:19-cv-08044. Oxnard is a seaside city west of Los Angeles, in California. [BN] The defendant is represented by: Tomas A. Guterres, Esq. David C. Moore, Esq. Ryan J. Kohler, Esq. COLLINS COLLINS MUIR + STEWART LLP 1100 El Centro Street South Pasadena, CA 91030 Telephone: (626) 243-1100 Facsimile: (626) 243-1111 E-mail: tguterres@ccmslaw.com dmoore@ccmslaw.com rkohler@ccmslaw.com PATENAUDE & FELIX: Moyer Moves for Rule 23 Class Certification -------------------------------------------------------------- The Plaintiff in the lawsuit captioned CANDACE MOYER, on behalf of herself and all others similarly situated v. PATENAUDE & FELIX, A.P.C., Case No. 5:18-cv-04711-JDW (E.D. Pa.), moves for an order granting her Motion to Certify Class pursuant to Rule 23 of the Federal Rules of Civil Procedure. Ms. Moyer seeks oral argument.[CC] The Plaintiff is represented by: Ari H. Marcus, Esq. MARCUS & ZELMAN, LLC 701 Cookman Avenue, Suite 300 Asbury Park, NJ 07712 Telephone: (732) 695-3282 Facsimile: (732) 298-6256 E-mail: Ari@MarcusZelman.com PEP BOYS MANNY: Luis Files Labor Class Suit in California --------------------------------------------------------- A class action lawsuit has been filed against The Pep boys Manny Moe & Jack of California. The case is styled as Torres Luis individually and on behalf of all others similarly situated, Plaintiff v. The Pep boys Manny Moe & Jack of California, a California Corporation, Defendant, Case No. 19STCV36167 (Cal. Super., Oct. 9, 2019). The case type is stated as Other Employment Complaint Case. The Pep Boys Manny Moe & Jack of California retails automotive parts and accessories.[BN] The Plaintiff appears PRO SE. PHEAA: Winebarger Appeals C.D. California Ruling to Ninth Circuit ----------------------------------------------------------------- Plaintiffs Peter Gannon, Jenise Overmier and Lisa Winebarger filed an appeal from a Court ruling issued in their lawsuit entitled Lisa Winebarger, et al. v. PHEAA, et al., Case No. 2:19-cv-01503-JFW-RAO, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as Lisa Winebarger, et al. v. PHEAA, et al., Case No. 19-56118, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the lawsuit seeks to rectify a pattern and practice by Defendants of failing to credit student loan borrowers for qualifying payments toward the Congressionally-mandated Public Service Loan Forgiveness ("PSLF") program. According to the lawsuit, the practice contravenes Defendants' duties under their servicing contracts with the federal government and under applicable law, and financially impairs thousands, if not millions, of student loan borrowers eligible or potentially eligible for debt relief under the PSLF program. Ms. Winebarger is a case in point. She has diligently made payments which meet all the statutory and regulatory requirements to count as "qualifying payments" toward the qualifying payments required for loan forgiveness under the PSLF program. However, PHEAA -- which serves as the exclusive loan servicer for borrowers actively pursuing PSLF -- has furnished Ms. Winebarger with vastly fluctuating payment counts that do not reflect the full number of qualifying payments she has made. Ms. Winebarger now seeks to remedy the situation on behalf of herself and those similarly situated, public servants who have borrowed money to fund their education but have found their progress toward promised loan forgiveness stymied by Defendants' negligence and malfeasance. In the aggregate, the claims of all class members exceed $5,000,000, exclusive of interest and costs, based on the allegations herein. Given the value of the loans eligible or potentially eligible for forgiveness under the PSLF program (which run to the hundreds of billions of dollars), it is readily apparent that Defendants' negligence and malfeasance have caused much more than $5,000,000 in qualifying payments for PSLF to go uncredited, the lawsuit says. PHEAA is a public corporation headquartered in Pennsylvania. Nelnet is a corporation headquartered in Nebraska. The briefing schedule in the Appellate Case is set as follows: -- Appellants Peter Gannon, Jenise Overmier and Lisa Winebarger's opening brief is due on November 19, 2019; -- Appellees Nelnet Servicing, LLC, Nelnet, Inc. and Pennsylvania Higher Education Assistance Agency's answering brief is due on December 19, 2019; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants LISA WINEBARGER, JENISE OVERMIER and PETER GANNON, on behalf of themselves and all others similarly situated, are represented by: Jonathan A. Sorkowitz, Esq. PIERCE BAINBRIDGE BECK PRICE & HECHT LLP 277 Park Avenue, 45th Floor New York, NY 10172 Telephone: (212) 484-9866 E-mail: jsorkowitz@piercebainbridge.com - and - Thomas D. Warren, Esq. PIERCE BAINBRIDGE BECK PRICE & HECHT LLP 355 S. Grand Avenue, 44th Floor Los Angeles, CA 90071 Telephone: (213) 262-9333 E-mail: twarren@piercebainbridge.com Defendant-Appellee PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY is represented by: Mark S. Kokanovich, Esq. BALLARD SPAHR LLP 1 East Washington Street, Suite 2300 Phoenix, AZ 85004-2555 Telephone: (602) 798-5532 E-mail: kokanovichm@ballardspahr.com Defendants-Appellees NELNET, INC. and NELNET SERVICING, LLC are represented by: Jonathan C. Sandler, Esq. BROWNSTEIN HYATT FARBER SCHRECK LLP 2049 Century Park East Los Angeles, CA 90067 Telephone: (310) 500-4600 E-mail: jsandler@bhfs.com PILLARS FUNDING: Fails to Pay Minimum Wage, Katsnelson Suit Says ---------------------------------------------------------------- ROBERT KATSNELSON, Individually and on behalf of all other similarly situated persons v. PILLARS FUNDING LLC, SAUL SHERMAN, ELI BERG, and KEVIN MILLS, Jointly and Severally, Case No. 1:19-cv-05413 (E.D.N.Y., Sept. 23, 2019), alleges that the Defendants failed to pay the Plaintiff and other employees the minimum wage under the New York Labor Law and the Fair Labor Standards Act. Pillars Funding is a New York Domestic Limited Liability Company that is organized under New York law and authorized to do business in the State of New York. The Individual Defendants own, operate or controls Pillars Funding's day-to-day operations and management. Pillars Funding is a financial services company that offers merchant cash advances at high-interest rates, as well as credit card processing services. Pillars Funding operates two offices, one in Brooklyn, New York, and one in Staten Island, New York.[BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Sara J. Isaacson, Esq. LIPSKY LOWE LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170-1830 Telephone: (212) 392-4772 Facsimile: (212) 444-1030 E-mail: doug@lipskylowe.com sara@lipskylowe.com PORTFOLIO RECOVERY: Horowitz Asserts Breach of FDCA --------------------------------------------------- A class action lawsuit has been filed against Portfolio Recovery Associates, LLC. The case is styled as Usher Horowitz, individually and on behalf of all others similarly situated, Plaintiff v. Portfolio Recovery Associates, LLC, Defendant, Case No. 1:19-cv-05575 (E.D. N.Y., Oct. 2, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Portfolio Recovery Associates, LLC is a debt collection firm.[BN] The Plaintiff is represented by: David M. Barshay, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 706-5055 Email: dbarshay@barshaysanders.com - and - Craig B. Sanders, Esq. Barshay Sanders, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@barshaysanders.com PPL CORP: Talen Securities Suit Remanded to State Court ------------------------------------------------------- Judge Susan P. Waters of the U.S. District Court for the District of Montana, Billings Division, granted Plaintiffs Talen Montana Retirement Plan and Talen Energy Marketing, LLC's motion to remand the case captioned Talen Montana Retirement Plan and Talen Energy Marketing, LLC, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. PPL Corporation, PPL Capital Funding Inc., PPL Electric Utilities Corp., PPL Energy Funding Corp., Paul A. Farr, Mark F. Wilten, Peter J. Simonich, and DOES 1-50, Defendants, Cause No. CV-18-174-BLG-SPW (D. Mont.), back to the Sixteenth Judicial District Court, Rosebud County, Montana. In 1999, PPL purchased 11 hydroelectric facilities, a storage dam, and ownership interests in coal-fired plants in Colstrip, Montana, and Corette, Montana, from Montana Power Co. for $769 million. PPL created PPL Montana, a subsidiary, to acquire and manage the energy assets. For the next 13 years, PPL Montana generated more than $325 million in profits for PPL. In 2012, due to a number of converging factors, energy prices dropped in Montana, causing PPL's profits to fall. The United States Environmental Protection Agency (EPA) was formulating new regulations related to disposal of coal ash, which would result in higher production costs. The Montana Department of Environmental Quality imposed extensive closure, remediation, and financial obligations on PPL Montana due to seepage from the coal plants' ash ponds. The Sierra Club sued PPL Montana under the Clean Air Act for civil penalties and injunctive relief concerning the Colstrip coal plant. While issues with the coal plants were going on, PPL acquired utilities in Kentucky and the United Kingdom for a combined cost of $13.2 billion. It also designed plans to modernize existing utility operations for more than $15 billion. The combined effect of PPL's declining energy profits and utility acquisitions was financial stress. To ease the financial stress, PPL began shopping PPL Montana's assets. Northwestern Energy submitted two bids. One bid was $740 million for PPL Montana's hydroelectric assets, the other bid was $400 million for PPL Montana's hydroelectric and coal-fired assets. The coal-fired assets carried such a substantial negative valuation that PPL decided to sell PPL Montana's hydroelectric assets, distribute the proceeds to PPL, and leave the coal fired assets with PPL Montana. At the time of the sale, all three of PPL Montana's board of managers were employed by PPL. One of these managers was Peter Simonich. Simonich and PPL Montana's other two managers approved PPL Montana's sale of its hydroelectric assets to Northwestern Energy for approximately $900 million. As soon as the sale was complete, Simonich and his fellow managers on the board authorized the distribution of the $900 million from PPL Montana to PPL despite knowing the distribution would leave PPL Montana insolvent. The distribution left PPL Montana insolvent -- just as Simonich, his fellow managers, and PPL knew it would -- with only the coal-fired plants its material assets. Less than a year after rendering PPL Montana insolvent, PPL completed a spin-off transaction, wherein PPL Montana became a subsidiary of a new company completely unaffiliated with PPL, called Talen Energy Corp., which subsequently changed its name to Talen Montana. Talen Montana's pension plan and Talen Energy Marketing LLC, an affiliate of Talen Montana, filed suit against PPL in Montana state district court, alleging actual fraudulent transfer, constructive fraudulent transfer, recovery against subsequent transferees, civil conspiracy, concert of action, unjust enrichment, constructive trust, and punitive damages. The Plaintiffs brought the suit as a class action on behalf of all current and contingent creditors of Talen Montana. The first amended complaint seeks a constructive trust, damages equal to the distribution, and punitive damages. PPL removed the action to the Court under the Class Action Fairness Act. The Plaintiffs filed a motion to remand the case back to state court under the local controversy exception to CAFA. The Plaintiffs argue the Local Controversy Exception applies in the case. The Defendants respond the Local Controversy Exception does not apply because Montana citizens do not make up two-thirds of the class, no Defendant is a Montana citizen from whom significant relief is sought and whose conduct forms a significant basis for the claims asserted, and principal injuries were not incurred in Montana but instead nationwide. Because greater than two-thirds of the proposed class are Montana citizens, Judge Waters finds that the Plaintiffs have satisfied their burden under 28 U.S.C. Section 1332(d)(4)(A)(i)(I). The Judge also finds that the Plaintiffs have sufficiently allege Simonich's conduct forms a significant basis for their claims. Although PPL was undoubtedly the bigger player in the alleged scheme, Simonich remains liable for his own conduct, which the Plaintiffs claim is civil conspiracy and aiding and abetting tortious conduct. The Plaintiffs further claim Simonich's conduct was so egregious that he is liable for punitive damages. Most importantly, Simonich's alleged conduct -- the approval of the sale and distribution knowing it would render PPL Montana insolvent -- played a pivotal role in the resulting harm. Finally, the Judge finds that although some other states each have a smattering of Talen Montana creditors, the sheer amount of damage caused to Montana citizens, particularly the hundreds of employees and retirees residing in Rosebud County, and to the Montana Department of Environmental Quality makes this a controversy that "uniquely affects" Montana unlike anywhere else. To hold otherwise would cause a distinctly local issue to be transformed into a national issue, which is the opposite of CAFA's intent. For these reasons, Judge Waters granted the Plaintiffs' motion to remand the case to state court. She remanded case to the Sixteenth Judicial District Court, Rosebud County, Montana. A full-text copy of the Court's Sept. 13, 2019 Opinion and Order is available at https://is.gd/75kMvQ from Leagle.com. Talen Montana Retirement Plan, Individually and on Behalf of All Others Similarly Situated & Talen Energy Marketing, LLC, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, represented by Robert L. Sterup -- rsterup@brownfirm.com -- BROWN LAW FIRM, P.C., Adam Wolfson -- adamwolfson@quinnemanuel.com -- QUINN EMANUEL URQUHART & SULLIVAN, LLP, pro hac vice, Karl S. Stern, QUINN EMANUEL URQUHART & SULLIVAN, LLP, pro hac vice, Kate K. Shih -- kateshih@quinnemanuel.com -- QUINN EMANUEL URQUHART & SULLIVAN, LLP, pro hac vice & Katherine Kunz, QUINN EMANUEL URQUHART & SULLIVAN, LLP, pro hac vice. PPL Corporation, PPL Capital Funding Inc., PPL Electric Utilities Corp., PPL Energy Funding Corp., Mark F. Wilten & Peter J. Simonich, Defendants, represented by Elizabeth L. Griffing -- bgriffing@axilonlaw.com -- AXILON LAW GROUP, PLLC & Tom Singer -- tsinger@axilonlaw.com -- Axilon Law Group, PLLC. Paul A. Farr, Defendant, represented by Casey Heitz, PARKER, HEITZ & COSGROVE, PLLC, Mark D. Parker, PARKER, HEITZ & COSGROVE, PLLC & Joshua L. Seifert, pro hac vice. PURDUE PHARMA: Taylor Files RICO Class Action in Kansas ------------------------------------------------------- A class action lawsuit has been filed against Purdue Pharma L.P. The case is styled as William Taylor, individually and on behalf of all others similarly situated, Plaintiff v. Purdue Pharma, LP, Purdue Pharma, Inc., The Purdue Frederick Company, Inc., INSYS Therapeutics, Inc., Teva Pharmaceutical Industries, Ltd., Teva Pharmaceutical USA, Inc., Cephalon, Inc., Johnson & Johnson, Janssen Pharmaceutical, Inc., Endo Health Solutions Inc., Endo Pharmaceuticals, Inc., Actavis PLC, Actavis Inc., Watson Pharmaceuticals, Inc., Watson Laboratories, Inc., McKesson Corporation, Cardinal Health, Inc. and Amerisourcebergen Corporation, Defendants, Case No. 2:19-cv-02596-DDC-KGG (D. Kan., Oct. 2, 2019). The docket of the case states the nature of suit as Racketeer/Corrupt Organization filed pursuant to the Racketeer Influenced and Corrupt Organizations Act. Purdue Pharma L.P. is a privately held pharmaceutical company owned principally by descendants of Mortimer and Raymond Sackler. In 2007, it paid out one of the largest fines ever levied against a pharmaceutical firm for mislabeling its product OxyContin, and three executives were found guilty of criminal charges.[BN] The Plaintiff is represented by: Robert L. Kinsman, Esq. Krause & Kinsman, LLC 4717 Grand Avenue, Suite 250 Kansas City, MO 64112 Tel: (816) 760-2700 Fax: (816) 760-2800 Email: robert@krauseandkinsman.com QUINTI INC: Fails to Pay Overtime Wages, Ngo Says ------------------------------------------------- HOANG NGO, an individual, the Plaintiff, vs. QUINTI INC., a California corporation; and DOES 1 through 20, inclusive, the Defendants, Case No. 19STCV27433 (Cal. Super., Aug. 5, 2019), alleges that Defendants violated the California Labor Code by failing pay overtime, failing to pay all wages upon termination, and failing to issue complete and accurate wage statements. The Plaintiff and all other similarly aggrieved past and current employees of Defendant were and are victims of Defendant's policies and/or practices complained of, lost money and/or property as a result of Defendant's conduct, and have been deprived of the rights guaranteed to them by California Labor Code The Plaintiff was employed by Defendant as a Tire Technician from approximately February 2018 until his termination on or about May 20, 2019, at Defendant's EZ Tire Stop retail 15 store. The Plaintiff commenced work at Defendant's Walnut location, located at 750 Nogales Street 16 No. D, Walnut, California 91789, and then was transferred to Defendant's Alhambra location, located at 502 South Garfield Avenue, Alhambra, California 91801, when the Walnut location was closed. The Defendant classified Plaintiff and all other similarly aggrieved employees as hourly, as non-exempt employees. The Plaintiff and other similarly aggrieved employees held non-management positions. During Plaintiff's employment, Defendant regularly failed to provide the Plaintiff and all other similarly aggrieved employees their legally compliant meal and rest breaks due to Defendant's understaffing.[BN] Attorneys for the Plaintiff are: Allen B. Felahy, Esq. FarbodNourian, Esq. FELAHY EMPLOYMENT LAWYERS 550 South Hope Street, Suite 2655 Los Angeles, CA 90071 Telephone: (323) 645-5197 Facsimile: (323) 645-5198 E-mail: afelahy@Felahylaw.com fnourian@felahylaw.com RIVERSTONE RESIDENTIAL: Casafranca Appeal on Antoine Deal Nixed --------------------------------------------------------------- In the case, EVELYN ANTOINE et al., Plaintiffs and Respondents, v. RIVERSTONE RESIDENTIAL CA, INC. et al., Defendants and Respondents; NELLY CASAFRANCA, Objector and Appellant, Case No. C083946 (Cal. App.), the Court of Appeals of California for the Third District, Sacramento, dismissed Objector Nelly D. Casafranca's appeal of the trial court's Final Approval Order and Judgment approving a settlement in the class action lawsuit brought by employees (Antoine et al.) against employers (Riverstone Residential CA, Inc., et al.) for unfair business practices and specified labor law violations regarding wages, meal and rest periods, etc. The class action suit includes a cause of action under the Labor Code Private Attorneys General Act of 2004, which authorizes employees to sue employers for statutory penalties for Labor Code violations and attorney fees. Casafranca, who is not a named party of record, argued that the Antoine settlement was invalid as to the PAGA claim for various reasons and would foreclose her own PAGA claim that she filed in Orange County Superior Court, alleging claims duplicative of those in the Antoine complaint. Casafranca filed the Orange County complaint as a "representative action" on behalf of herself and others similarly situated. The Sacramento County judge in the Antoine suit addressed and rejected Casafranca's objections in a tentative ruling, adopted its tentative ruling, and specified in the Final Approval Order and Judgment that the Objection of Nelly D. Casafranca to the Proposed Settlement is overruled and denied in its entirety. The Court retained jurisdiction to enforce the terms of the Settlement. Casafranca filed a notice of appeal. After Casafranca filed her opening brief on appeal and the Appellant's appendix, the Plaintiffs, joined by the Defendants, moved for dismissal of Casafranca's appeal on the ground that she lacks standing because she did not make herself a party of record in the Sacramento County class action. It is undisputed that Casafranca did not formally intervene nor move to set aside nor vacate the judgment. The Respondents ask the Court to take judicial notice of the register of actions from the Sacramento County Superior Court website, reflecting that Casafranca never sought to intervene in the class action and never filed a motion to set aside and vacate the judgment. Casafranca does not claim that the register is incorrect and does not claim that she filed anything in the trial court to intervene or set aside or vacate the judgment. And the Court can take judicial notice that no filing for intervention or motion to set aside or vacate the judgment appears in the trial court's register of actions. Judge Hull opines that a PAGA claim may be pursued as a class action, and when it is, unnamed class members do not become parties of record with the right to appeal under Code of Civil Procedure section 902 unless they formally intervene in the class litigation before the action is final, or file an appealable motion to set aside and vacate the class judgment under Code of Civil Procedure section 663. The Antoine lawsuit that included a PAGA claim was pursued as a class action. Originally, Ms. Antoine filed a class action complaint that did not include a PAGA claim, while other employees (not Casafranca) separately filed suits that did raise PAGA claims. All of these suits were incorporated in an amended complaint pursuant to a class-wide settlement, as stated in the Notice of Class Action Settlement filed with the Sacramento County Superior Court. The Sacramento court approved the settlement and allowed the filing of the amended complaint, which added the other plaintiff-employees as named plaintiffs in Antoine's complaint. Casafranca was not included, because she did not initiate her own PAGA claim until after she received notice of the proposed settlement. Since the PAGA claim in the lawsuit at issue in the appeal was pursued as a class action, class action rules apply, and Casafranca's failure to make herself a party of record leaves her without standing to appeal. Accordingly, Casafranca lacks standing to appeal, the Appellate Court holds. In light of the foregoing, the Appellate Court granted the Respondents' motion to dismiss Casafranca's appeal. A full-text copy of the Court's Sept. 17, 2019 Opinion is available at https://is.gd/BCh7J2 from Leagle.com. SAFECO INSURANCE: Martin Suit over Housing Insurance Underway ------------------------------------------------------------- ROGER MARTIN, Individually & on Behalf of All Others Similarly Situated, the Plaintiff, vs. SAFECO INSURANCE COMPANY OF INDIANA, the Defendant, Case No. 2:19-cv-00262-JRG (E.D. Tex., Aug. 5, 2019) alleges that Defendant failed to comply with its insuring agreement when it recouped the funds paid for recoverable depreciation and/or claims adjusting expenses. SAFECO provides replacement cost homeowners' insurance to tens of thousands of Texans. In the event of a covered loss, SAFECO pays the full replacement cost of property damaged or destroyed. Under the terms of the policies, "replacement cost" includes the actual cash value of the property plus recoverable depreciation. Meanwhile, the lawsuit says, policyholders asserting claims against third parties responsible for covered losses recover only the actual cash value of damaged or destroyed property. Even though a subrogated insurance carrier indisputably has no greater rights than its policyholder, SAFECO nonetheless demands reimbursement of the full amount of its outlays -- including recoverable depreciation and claims adjusting expenses -- from policyholder third party recoveries, the lawsuit says. * * * Defendant's Unopposed First Application for Extension of Time to Answer Complaint has granted pursuant to Local Rule CV-12 for SAFECO Insurance Company of Indiana to Sept. 27.[BN] Attorneys for the Plaintiff are: James A. Holmes, Esq. THE LAW OFFICE OF JAMES HOLMES, P.C. 212 South Marshall Henderson, TX 75654 Telephone: (903) 657-2800 Facsimile: (903) 657-2855 E-mail: jh@JamesHolmesLaw.com - and - David B. Miller, Esq. SCHNEIDER MILLER REYNOLDS, P.C. 300 North Coit Road, Suite 1125 Richardson, TX 75080-5535 Telephone: (972) 479-1112 Facsimile: (972) 479-1113 E-mail: david@schneidlaw.com SAFECO Insurance Company of Indiana is represented by: Christopher Andrew Thompson, Esq. Jackson Walker LLP 2323 Ross Ave., Suite 600 Dallas, TX 75201 Tel: (214) 953-6032 Fax: (214) 953-5822 E-mail: cthompson@jw.com SALTILLO, MI: Whaley Files Civil Rights Class Action ---------------------------------------------------- A class action lawsuit has been filed against City of Saltillo, Mississippi. The case is styled as Jacob A. Whaley, on behalf of himself and those similarly- situated, Plaintiff v. City of Saltillo, Mississippi, Defendant Case No. 1:19-cv-00178-DMB-DAS (N.D. Miss., Oct. 8, 2019). The case type is stated as Civil Rights-Other. Saltillo is a city in Lee County, Mississippi, located in the northern part of the Tupelo micropolitan area.[BN] The Plaintiff is represented by: Jim D. Waide , III, Esq. WAIDE & ASSOCIATES, PA P.O. Box 1357 Tupelo, MS 38802-1357 Tel: (662) 842-7324 Fax: (662) 842-8056 Email: waide@waidelaw.com SANCHEZ OIL: Flynn Seeks to Certify Class of Operators ------------------------------------------------------ MARK FLYNN, individually and on behalf of all others similarly situated, the Plaintiff, vs. SANCHEZ OIL & GAS CORPORATION, the Defendant, Case No. 5:19-cv-00867-JKP-ESC (W.D. Tex.), the Plaintiff asks the Court for an order conditionally certifying a Fair Labor Standards Act class consisting of: "all Operators who worked for, or on behalf of, Sanchez, who were staffed through Tulsa Inspection Resources and paid a day rate at any time during the last three years". Sanchez is a private company engaged in the management of oil and natural gas properties. SOG and various related companies have participated in and managed the drilling of over 1,000 wells, investing a substantial amount of capital in well costs, seismic and acreage. In an effort to side step federal overtime requirements, Sanchez pays these operators a day rate with no overtime compensation. Plaintiffs' pay records and declarations are consistent that Sanchez pays its operators a day rate without overtime.[CC] Attorneys for the Plaintiff are: Andrew W. Dunlap, Esq. William R. Liles, Esq. JOSEPHSON DUNLAP, LLP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: (713) 352-1100 Facsimile: (713) 352-3300 E-mail: adunlap@mybackwages.com wliles@mybackwages.com - and - BRUCKNER BURCH PLLC Richard J. (Rex) Burch Greenway Plaza, Ste. 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com SHAW INDUSTRIES: Seeks 9th Cir. Review of Decision in Fitch Suit ---------------------------------------------------------------- Defendants Shaw Industries Group, Inc. and Shaw Industries, Inc. filed an appeal from a Court ruling in the lawsuit styled Randolph Fitch v. Shaw Industries, Inc., et al., Case No. 2:19-cv-00590-RGK-MAA, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is titled as Randolph Fitch v. Shaw Industries, Inc., et al., Case No. 19-56119, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the Defendants filed an appeal from a Court ruling in the lawsuit. That appellate case is captioned as Randolph Fitch v. Shaw Industries, Inc., et al., Case No. 19-80044.[BN] Plaintiff-Appellee RANDOLPH FITCH, on behalf of himself, all others similarly situated and on behalf of the general public, is represented by: David Mara, Esq. Jill Marie Vecchi, Esq. MARA LAW FIRM PC 2650 Camino Del Rio North, Suite 205 San Diego, CA 92108 Telephone: (619) 234-2833 E-mail: dmara@turleylawfirm.com jvecchi@turleylawfirm.com Defendants-Appellants SHAW INDUSTRIES, INC. and SHAW INDUSTRIES GROUP, INC., are represented by: Michaela Goldstein, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP 1901 Avenue of the Stars Los Angeles, CA 90067-6001 Telephone: (424) 288-5303 E-mail: mgoldstein@sheppardmullin.com - and - Tyler James Johnson, Esq. Tracey Adano Kennedy, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1448 Telephone: (213) 620-1780 E-mail: tjjohnson@sheppardmullin.com tkennedy@sheppardmullin.com SOUTHLAND ROYALTY: Atencio Files Class Suit in New Mexico --------------------------------------------------------- A class action lawsuit has been filed against Southland Royalty Company, LLC. The case is styled as Brenda Atencio, on behalf of herself and a class of similarly situated persons, Plaintiff v. Southland Royalty Company, LLC, Defendant, Case No. 1:19-cv-00946-JFR-LF (D. N.M., Oct. 9, 2019). The docket of the case states that the case was filed for Breach of Contract. Southland Royalty Co., headquartered in Fort Worth, Texas, operates oil and gas assets.[BN] The Plaintiff is represented by: Stacy Burrows, Esq. Law Offices of George A. Barton, PC 7227 Metcalf Avenue, Suite 301 Overland Park, KS 66204 Tel: (913) 563-6253 Fax: (913) 563-6259 Email: stacy@georgebartonlaw.com - and - George Barton, Esq. Law Offices of George Barton, P.C. 7227 Metcalf Avenue, Suite 301 Overland Park, KS 66204 Tel: (913) 563-6250 Email: gab@georgebartonlaw.com SPECTRA ENERGY: Morris Has No Standing to Pursue Claims, Says Court ------------------------------------------------------------------- The Court of Chancery of Delaware issued an Opinion granting Defendant's Motion to Dismiss the case captioned PAUL MORRIS, on behalf of all similarly situated former unitholders of SPECTRA ENERGY PARTNERS, LP, Plaintiff, v. SPECTRA ENERGY PARTNERS (DE) GP, LP, Defendant. C.A. No. 2019-0097-SG. (Del. Ch.). This is the second incarnation of a challenge--by a unitholder of a master limited partnership--to a buyback (a "reverse dropdown") of partnership assets formerly purchased from the controller of the partnership's general partner. The first litigation in the matter alleged that a special committee appointed by the general partner consented to the transaction in violation of its contractual duty of good faith, at an inadequate price. That litigation was brought in pertinent part derivatively, and survived a motion to dismiss. Standing to pursue the matter was lost, however, when the controller acquired the partnership via merger. The Plaintiff then brought this challenge to that merger, alleging that the general partner agreed to the merger in bad faith, in that it failed to receive any value for the derivative litigation asset. The Defendant has moved to dismiss, arguing that the Plaintiff does not pass the Primedia test, and therefore lacks standing; and that in any event he has failed to state a claim on which relief can be granted. The Court finds that the value of the derivative claim here was not material in light of the merger transaction. The derivative claim asserted that in determining that the reverse dropdown was fair to the partnership, the derivative defendants erred in netting out from known value a reduction of future payments to the general partner avoided due to the reverse dropdown. According to the derivative complaint, the assets, valued at $1.5 billion, were undersold by $554 million. That is not the value of the claim to the partnership, however. The potential value must be reduced to reflect the minority unitholders' interest, as well as the prospect of ultimate recovery in light of the difficulties of proof inherent therein. Upon consideration, the Court finds the amount at issue not material to the partnership. Therefore, the Plaintiff lacks standing and the Motion to Dismiss must be granted. Accordingly the Court need not reach the Defendant's argument under Rule 12(b)(6). Analysis The Defendant has moved to dismiss the action pursuant to Chancery Court Rule 12(b)(6). The Complaint pleads two counts. Both are pled as direct claims. Count I asserts breach of SEP's Third Amended and Restated Agreement of Limited Partnership (Third A&R LPA) against SEP GP. Count II asserts breach of the implied covenant of good faith and fair dealing against SEP GP. The standard of review for a Rule 12(b)(6) motion is well settled: (i) all well-pleaded factual allegations are accepted as true (ii) even vague allegations are well-pleaded if they give the opposing party notice of the claim (iii) the Court must draw all reasonable inferences in favor of the nonmoving party and (iv) dismissal is inappropriate unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof. Standing Requirement for the Plaintiff's Claims In certain circumstances, Delaware law permits stockholders who lose standing under this scenario to directly challenge the fairness of the merger that extinguished their right to pursue the derivative litigation. In re Primedia, Inc. Shareholders Litigation, 67 A.3d 455 (Del. Ch. May 10, 2013), sets out the standing requirements under Delaware law for a plaintiff who attacks the fairness of a merger based on a board's alleged failure to obtain value for an underlying derivative claim. Primedia holds that a plaintiff seeking to pursue such a direct claim must establish standing to sue via a three-part test: First, the plaintiff must plead an underlying derivative claim that has survived a motion to dismiss or otherwise could state a claim for which relief could be granted. Second, the value of the derivative claim must be material in the context of the merger. Third, the complaint challenging the merger must support a pleadings-stage inference that the acquirer would not assert the underlying derivative claim and did not provide value for it. The Plaintiff alleges that the Roll-Up was unfair because the 2018 Committee and SEP GP failed to secure any value for the Derivative Claim on behalf of SEP's public unitholders. The Plaintiff argues that the Derivative Claim had value and it is incontrovertible that the Defendant did not obtain value for the Derivative Claim and that the Plaintiff seeks to challenge the Roll-Up on this ground. The Plaintiff, however, must first establish standing to pursue this challenge. The Plaintiff Does Not Have Standing The Derivative Claim Was Viable, and the Plaintiff's Class Received No Value for It The Derivative Claim here survived a motion to dismiss in this Court. The record at that point was insufficient to determine the nature of the alleged IDR savings from the Sand and Southern Hills and whether it was properly understood as value of consideration to SEP. Drawing all reasonable inferences in favor of the plaintiff in that motion to dismiss, the Court found that he made adequate allegations showing that under reasonably conceivable circumstances a facially unreasonable gap in consideration exists sufficient to infer subjective bad faith in breach of the Second A&R LPA. The Defendant urges this Court to evaluate the viability of the Derivative Claim as of the date the Plaintiff's standing was extinguished. The Defendant had moved for summary judgment on the Derivative Claim. The Defendant's summary judgment motion relied on discovery material and the Defendant argues that the Plaintiff cannot now contend that this Court must assess the viability of his claim as if that summary judgment evidence did not exist. The Defendant's argument misconstrues the purpose of the viability inquiry, which seeks to identify only whether the underlying derivative suit is meritorious. In discussing whether a claim is meritorious, the Delaware Supreme Court has held that it is not necessary that factually there be absolute assurance of ultimate success, but only that there be some reasonable hope. Viability is a threshold inquiry. If the complaint is devoid of actionable claims, the inquiry is at an end. The answer for the Derivative Claim is in the affirmative. That is the end of the viability inquiry. The Defendant's argument that the facts favor a summary judgment is not pertinent to viability, but, obviously, may be pertinent to the materiality prong of the Primedia analysis, addressed below. Likewise, the record reflects that the third Primedia prong was satisfied; the public unitholders received no value for the Derivative Claim. The Derivative Claim Was Not Material The remaining prong of the Primedia inquiry is whether the value of the derivative claim was material in the context of the merger. This first requires a calculation of the value of the claim. Then, materiality is adjudicated by viewing that value in the context of the merger as a whole. The Complaint alleges that the Derivative Claim was worth more than $660 million to SEP. The Plaintiff calculates this number as the sum of (1) the difference the Plaintiff alleges between the value of the Pipeline Interests ($1.5 billion) and the value the Plaintiff alleges was received as consideration for the Pipeline Interests from SE Corp ($946 million) and (2) prejudgment interest using the applicable statutory rate. Previous cases are unclear whether in determining materiality, prejudgment interest should be included in the value of a derivative claim. The Court presumes, without deciding, that prejudgment interest is a part of the value attributable to the Derivative Claim. The Court assumes that the Derivative Claim, therefore, was for $661 million. But $661 million is not the value of the Derivative Claim for Primedia purposes. Instead, the value of the Derivative Litigation must be discounted to reflect the minority stockholders' beneficial interest in the litigation recovery. This reflects the fact that the public unitholders of SEP would only share in that portion of the recovery from the Derivative Claim for those units that were not owned by Enbridge prior to the Roll-Up. The Complaint alleges that Enbridge owned approximately 83% of SEP's limited partner units. This left the minority unitholders with an approximately 17% interest in SEP. $661 million multiplied by 17% equals $112,370,000. The Court therefore find the value of the Derivative Claim, assuming a 100% chance of recovery, to be $112,370,000. Yet the Plaintiff faced substantial roadblocks to a $112.37 million judgment, as there was risk in the litigation. It remains, in my view, a litigable question whether Reduced GP Cash Flow represented value to the Partnership in the Reverse Dropdown, which would vindicate the Defendant's approval of the transaction objectively. But even if the Defendant was incorrect in its valuation, that would not breach the Second A&R LPA. Instead, the Plaintiff would have to show either that the work of the Defendant's advisor, Simmons, on the Reverse Dropdown did not fit in the parameters of Section 7.10(b) of the Second A&R LPA, or that SEP GP did not reasonably believe that the valuation of the transaction was within Simmons' competence, negating any safe harbor for the Defendant. Clearing this bar, moreover, would only remove the conclusive presumption of good faith. The Plaintiff would still have to demonstrate the Defendant's subjective bad faith to recover damages on behalf of SEP; the Second A&R LPA insulated SEP GP as long as its actions were taken in subjective good faith. To overcome that hurdle the Plaintiff would have had to show scienter: that SEP GP's Board of Directors and the 2015 Committee acted consciously against the best interests of the Partnership. The Court finds that the chance of success of the Derivative Claim was slim, and certainly less than one-in-four. Twenty-five percent of $112,370,000 is $28,092,500. This represents less than one percent of the total value of the Roll-Up. One percent is not material in the context of the Roll-Up. The Plaintiff consequently does not have standing to pursue his claims. Therefore, both Counts I and II must be dismissed. The Defendant's Motion is granted. A full-text copy of the Chancery Court's September 30, 2019 Memorandum Opinion is available at https://tinyurl.com/y2zl7wrq from Leagle.com. Michael J. Barry - mbarry@gelaw.com - and Michael T. Manuel - mmanuel@gelaw.com - of GRANT & EISENHOFER P.A., Wilmington, Delaware; Peter B. Andrews - pandrews@andrewsspringer.com - and Craig J. Springer - cspringer@andrewsspringer.com - of ANDREWS & SPRINGER LLC, Wilmington, Delaware; OF COUNSEL: Jeremy Friedman - jfriedman@ljbpc.com - Spender Oster - soster@fotpllc.com - and David Tejtel -dtejtel@fotpllc.com - of FRIEDMAN OSTER & TEJTEL PLLC, New York, NY, Attorneys for Plaintiff. Robert S. Saunders - rob.saunders@skadden.com - Ronald N. Brown, III - ron.brown@skadden.com - and of SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; OF COUNSEL: Noelle M. Reed - noelle.reed@skadden.com - Daniel S. Mayerfeld - daniel.mayerfeld@skadden.com - and Alston L. Walker , 1440 New York Ave Nw, Washington, DC 20005-2111 of SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Houston, Texas, Attorneys for Defendant. STITCH FIX: Consolidated Amended Complaint Filed in Cal. Class Suit ------------------------------------------------------------------- Stitch Fix, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 2, 2019, for the quarterly period ended August 3, 2019, that a consolidated amended complaint has been filed in the consolidated class action suit filed before the U.S. District Court for the Northern District of California. On October 11, 2018, October 26, 2018, November 16, 2018, and December 10, 2018, four putative class action lawsuits alleging violations of the federal securities laws were filed in the U.S. District Court for the Northern District of California, naming as defendants the company and certain of its officers. The four lawsuits each make the same allegations of violations of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), by the company and its officers for allegedly making materially false and misleading statements regarding our active client growth and strategy with respect to television advertising between June 2018 and October 2018. The plaintiffs seek unspecified monetary damages and other relief. The four lawsuits have been consolidated and a lead plaintiff has been appointed. The lead plaintiff filed a consolidated amended complaint on September 18, 2019. Stitch Fix said, "We dispute these claims and intend to defend the matter vigorously." Stitch Fix, Inc. operates as an online subscription and personal shopping platform. The Company offers shirts, jackets, sweaters, blazers, leggings, vests, scarfs, jeans, loafers, and boots for men and women. Stitch Fix serves customers in the United States. Stitch Fix, Inc. was founded in 2011 and is headquartered in San Francisco, California. SUNWEST BANK: Appeals Ct. Affirms Wood Suit Ruling, $83K Award -------------------------------------------------------------- The Court of Appeals of California, Second District, Division One affirmed a trial court order entered in favor of Defendants in the case captioned DENNIS WOOD et al., Plaintiffs and Appellants, v. SUNWEST BANK et al., Defendants and Respondents, Case No. B286529. (Cal. App.). In a so-called "freeze-out" transaction, minority shareholders are compelled to surrender their stock in a corporation and thereby relinquish ownership. Plaintiffs, a class of investors holding common stock in a community bank, allege they were unlawfully victimized by such a freeze-out transaction. Plaintiffs assert the Defendants--the corporation, its board of directors (Board), and related business entities--orchestrated the freeze-out over a multi-year period in seemingly discreet but in fact coordinated transactions. Plaintiffs argue they received less than fair value when forced to surrender shares they held. Defendants take the position there was no multi-year freeze-out plan, but rather a series of distinct transactions with different business rationales that ultimately resulted in the corporation becoming privately held. Defendants assert Plaintiffs received a fair price for their shares upon surrender and are instead attempting through litigation to extract an unjustified premium for their shares. After five-plus years of litigation, including a three-week bench trial, the trial court resolved this dispute in Defendants' favor, finding no fraud, breach of fiduciary duty, or other grounds warranting relief. The court entered judgment in favor of Defendants, and awarded costs to Defendants totaling $82,983.97. Plaintiff shareholders appeal. They do not dispute the trial court's factual findings. Claiming the court applied flawed legal standards in denying them relief, Plaintiffs argue that the Appeals Court should reverse and enter a $25.8 million judgment in their favor. Specifically, Plaintiffs assert the trial court erred in viewing the transactions at issue separately, instead of being a unitary plan to freeze out minority shareholders; the court erred in denying their motion to amend the class definition to include a certain "Private Placement", open market purchases of shares by Defendants, and a "2013 Stock Buyback"; the trial court applied the wrong legal standard to their breach of fiduciary duty claims regarding the 2011 Reverse Stock Split, and improperly admitted expert testimony regarding the valuation of fractional shares at the time of the 2011 RSS; and the trial court erroneously held Plaintiffs' complaints about the value they received for their shares in the 2015 short form merger had to be brought in an appraisal action. Finally, Plaintiffs argue the court awarded costs that were statutorily unauthorized. The Appeals Court discerns no error and affirm. The Appeals Court rules that the trial court did not err in evaluating the transactions at issue separately. "As we find no grounds to combine disparate transactions over a multi-year period into a single coordinated plan, we review each transaction individually, in chronological order, pursuant to the legal standard applicable to Plaintiffs' claim of error concerning that transaction," Judge WEINGART wrote in his order. According to the Appeals Court, the trial court did not err in denying permission to amend the class definition to include 2009 and 2010 Private Placements. The trial court found "if Plaintiff seeks to change the scope of the class based on facts that neither they nor the court had at the time of the original certification it follows that Plaintiffs must now offer evidence which supports a finding of common questions of fact in light of these new facts. And pursuant to California Rule of Court 3.764, such evidence is to be submitted in the form of declarations and judicial notice. However, Plaintiffs have not done so, so this requirement is left unsatisfied." The trial court also found Plaintiffs had not offered any evidence that Plaintiffs' claims were typical of the proposed class such as "declarations of counsel, class representatives, or any other related evidence, and so not only is the commonality not established by evidence; the typicality is not satisfied either." Considering the lack of evidence that the proposed broader class definition met the commonality or typicality requirements necessary to certify a class, the trial court did not abuse its discretion in denying Plaintiffs' 11th hour request to amend the class definition, ruled Judge WEINGART. In addition, the Appeals Court finds that the trial court correctly applied Section 407 to the 2011 RSS. The 2011 RSS resulted in all shareholders holding anything other than an even multiple of ten shares receiving a fractional interest, which Sunwest bought out at a predetermined price. Section 407 provides that in such a circumstance, a "determination by the board of the fair value of fractions of a share shall be conclusive in the absence of fraud." Plaintiffs argue the trial court erred in relying on Section 407 to conclude Plaintiffs failed to establish any claim for damages in connection with the 2011 RSS. There was no procedural defect in the Board's establishment of Fair Value, wrote Judge WEINGART. The Board hired a respected investment banking firm with extensive industry expertise to value the fractional interests and relied on that valuation. Sunwest was transparent with its regulators that it used liquidity and minority discounts in deriving the valuation, and those regulators raised no concern. Section 407 does not relieve board members of their fiduciary duties in valuing fractional shares, nor does it insulate their valuation from review, but Section 407 does provide that to overturn that valuation a shareholder must show evidence of bad faith and duplicity amounting to fraud. Plaintiffs did not establish fraud. The trial court also did not abuse its discretion in declining to exclude expert testimony, ruled the Appeals Court. Sunwest called two expert witnesses at trial on valuation related issues. One was an investment banker/consultant named Craig Mancinotti, whose testimony the trial court found credible. Mancinotti had worked in the finance industry for over 30 years providing investment banking and consulting services to community banks. Mancinotti did not base his conclusions on unsupported speculation. He explained his conclusions in a detailed report, in depositions, and at trial. With regards the Plaintiffs assertion that Bancorp's open market purchases following the 2011 RSS caused them damage under the "special facts" doctrine, and further were coercive transactions by a fiduciary because the parties holding those shares were forced to sell them, the Appeals Court held that putting aside the lack of record support for these claims, Plaintiffs lack standing to pursue them. Bancorp made no open market purchases from the two class representatives--both of these plaintiffs instead were cashed out as part of the 2011 RSS and/or the 2015 short-form merger. The class definition did not include open market purchases--it encompassed "all persons who owned shares of common stock of Sunwest on or after December 8, 2011 and whose shares were, or are subject to being cashed out." The transactions after December 8, 2011 in which shareholders were subject to being cashed out were the 2011 RSS and the 2015 short form merger. As discussed above, Plaintiffs' attempt to broaden this class definition to include any open market purchases by Defendants or their affiliates was properly rejected. The trial court, therefore, did not err in declining to award Plaintiffs any relief on these claims. "[W]e perceive no error in the trial court's holding that Plaintiffs were required to pursue relief through an appraisal action for any alleged damages resulting from the 2015 short form merger," Judge WEINGART further held. The trial court based this decision on its reading of section 1300, et seq. as interpreted by Steinberg, supra, 42 Cal.3d 1198 and Busse v. United PanAm Financial Corp. (2014) 222 Cal.App.4th 1028 (Busse). The trial court correctly relied on section 1312, Steinberg, and Busse to hold Plaintiffs could not sue for damages allegedly resulting from the 2015 short form merger, but instead were required to pursue relief through an appraisal action, ruled the Appeals Court. Lastly, there was no error in the costs awarded to Defendants, ruled Judge WEINGART. The trial court did not err in awarding exhibit related costs. Having concluded there was no legal prohibition on the trial court's award of exhibit related costs, we see no abuse of discretion in the trial court's award. Defendants' request for exhibit costs was proper on its face, and Plaintiffs' only objection to it was that Code of Civil Procedure section 1033.5 did not permit recovery. Having determined that the costs were statutorily authorized, the trial court was within its discretion to award costs for the exhibits at issue, Judge WEINGART concluded. As a protective measure in the event of a reversal, Defendants cross-appealed the trial court's denial of their demurrer to one of Plaintiffs' causes of action. "As we affirm the judgment, we need not address the cross-appeal," ruled Judge WEINGART. ROTHSCHILD, P. J. and CHANEY, J., concurs. A full-text copy of the Court of Appeals' September 30, 2019 Opinion is available at https://tinyurl.com/yy8rsgsp from Leagle.com. Cooch and Taylor, R. Bruce McNew - bmcnew@coochtaylor.com - JPG Law and J. Paul Gignac , 15 W. Carrillo St. Suite 246, Santa Barbara, CA, 93101for, Plaintiffs, Appellants, and Cross-Respondents. Callahan & Blaine, Michael J. Sachs - michael@callahan-law.com - and Scott D. Nelson, 3 Hutton Centre Drive, Ninth Floor, Santa Ana, CA 92707-5781, for Defendants, Respondents and Cross-Appellants. SWITCH ENERGY: Mickalovski Files TCPA Suit in Illinois ------------------------------------------------------ A class action lawsuit has been filed against Switch Energy, LLC. The case is styled as John B. Mickalovski, individually, and on behalf of all others similarly situated, Plaintiff v. Switch Energy, LLC, Defendant, Case No. 1:19-cv-06681 (N.D. Ill., Oct. 9, 2019). The docket of the case states that the case was filed under the Telephone Consumer Protection Act for Restrictions of Use of Telephone Equipment. Switch Energy is an independent energy company.[BN] The Plaintiff is represented by: Joseph Scott Davidson, Esq. Sulaiman Law Group, Ltd. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Tel: (630) 575-8181 x116 Email: jdavidson@sulaimanlaw.com SYMMETRY MANAGEMENT: Dunbar Seeks to Certify FDCPA & FCCPA Classes ------------------------------------------------------------------ In the class action lawsuit styled as ELLA DUNBAR, on behalf of herself and all others similarly situated, the Plaintiff, vs. SYMMETRY MANAGEMENT CORP. d/b/a BCC FINANCIAL MANAGEMENT SERVICES, INC., the Defendant, Case No. 8:19-cv-00715-CEH-TGW (M.D. Fla.), Case No. 8:19-cv-00715-CEH-TGW (M.D. Fla.), the Plaintiff asks the Court for an order: 1. certifying these classes: Fair Debt Collection Practices Act Class: "(i) all persons with addresses in the state of Florida (ii) to whom initial communication letters were sent containing the phrase, "If you dispute the debt or any portion thereof by writing or calling this office within 30 days after receiving this notice this office will obtain verification of the debt or a copy of a judgment and mail you a copy of such judgment or verification. If you request this office by writing or calling within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor." (iii) in an attempt to collect a debt incurred for personal, family, or household purposes (iv) which were not returned undelivered by the U.S. Post Office (v) during the one year period prior to the filing of the original complaint in this action through the date of certification"; and Florida Consumer Collection Practices Act Class: "(i) All persons with addresses in the state of Florida (ii) to whom initial communication letters were sent containing the phrase, "If you dispute the debt or any portion thereof by writing or calling this office within 30 days after receiving this notice this office will obtain verification of the debt or a copy of a judgment and mail you a copy of such judgment or verification. If you request this office by writing or calling within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor." (iii) in an attempt to collect a debt incurred for personal, family, or household purposes (iv) which were not returned undelivered by the U.S. Post Office (v) during the two year period prior to the filing of the original complaint in this action through the date of certification"; 2. appointing her as class representative; and 3. appointing her counsel as class counsel.[CC] Counsel for the Plaintiff are: James S. Giardina, Esq. Kimberly H. Wochholz, Esq. THE CONSUMER RIGHTS LAW GROUP, PLLC 3104 W. Waters Avenue, Suite 200 Tampa, FL 33614-2877 Telephone: (813) 435-5055 ext 101 Facsimile: (866) 535-7199 E-mail: James@ConsumerRightsLawGroup.com Kim@ConsumerRightsLawGroup.com SYNCHRONY BANK: Court Certifies Class in McMullen Suit ------------------------------------------------------ The Hon. James E. Boasberg grants the Plaintiff's renewed motion for class action certification, directing the issuance of class notice, and appointing class counsel in the lawsuit captioned VALERIE MCMULLEN v. SYNCHRONY BANK, et al., Case No. 1:14-cv-01983-JEB (D.D.C.). The Class consists of all individuals for whom a line of credit was opened by Chase and/or Synchrony Bank through one or more of the One World Fitness Defendants (One World Fitness, Bullen Wellness, Washington Chiropractic, Bullen, and/or Steward). The Class includes these sub-classes: a. All members of the Class who received charges against the line of credit opened by Chase and/or Synchrony Bank through the World Fitness Defendants (One World Fitness, Bullen Wellness, Washington Chiropractic, Bullen, and/or Steward); and b. All members of the Class who made payments to Chase and/or Synchrony Bank in response to receiving such charges. Plaintiff Valerie McMullen is designated as the representative of the Class. The law firms of Regan Zambri Long PLLC and Klaproth Law PLLC are designated as Class Counsel. The Court orders the One World Fitness Defendants to produce to the Class Counsel a complete list of every individual, who received a line of credit that was opened by Chase and/or Synchrony Bank through One World Fitness, Bullen Wellness, Washington Chiropractic, Bullen and/or Steward ("Class List"). The Court further orders that should it be necessary, the Plaintiff may serve a subpoena on Chase to obtain a Class List pertaining to lines of credit that were opened by Chase. The Class Counsel shall mail and e-mail the Notice to each member of the Class within thirty (30) days of receiving the Class List. The Class counsel shall also establish a Web site within 60 days of this Order that contains this Order, the Plaintiffs' Second Amended Complaint, the One World Fitness Defendants' Answers to the Complaint, the Notice, and subsequent developments concerning the Class.[CC] TAMKO BUILDING: Snyder Dismissed From Product Liability Suit ------------------------------------------------------------ The United States District Court for the Eastern District of California issued a Memorandum and Order granting Defendant's Motion to Dismiss as to Plaintiff Snyder in the case captioned JEFFERY SNYDER, MARTIN and BETH MELNICK, LIA LOUTHAN, and SUMMERFIELD GARDENS CONDOMINIUM, on behalf of themselves and all other similarly situated, Plaintiffs, v. TAMKO BUILDING PRODUCTS, Inc., A Missouri Corporation, Defendant. No. 1:15-CV-01892-TLN-KJN. (E.D. Cal.) Plaintiff alleges that in October 2004, a builder installed shingles on the home Plaintiff would eventually purchase in February 2005. He further alleges that a contractor told him his shingles were in very poor condition in 2013, and that they worsened over the next year. Along with all other plaintiffs, Plaintiff broadly alleges that in addition to damages to their shingles and roofs, Plaintiffs and the Class have also suffered damage to the underlying structures. Plaintiff brings claims for breach of express and implied warranties, strict liability, fraud, negligence, and unjust enrichment, as well as claims under California state law products liability. STANDARD OF LAW A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Federal Rule of Civil Procedure 8(a) requires that a pleading contain a short and plain statement of the claim showing that the pleader is entitled to relief. Under notice pleading in federal court, the complaint must give the defendant fair notice of what the claim is and the grounds upon which it rests. Plaintiff asserts the following causes of action against Defendant: (1) Breach of Express Warranty (First Cause of Action) (2) Breach of the Implied Warranties of Merchantability and Fitness for a Particular Purpose (Second and Third Causes of Action) (3) Strict Liability and Negligence (Fourth through Eighth Causes of Action) (4) Unjust Enrichment (Ninth Cause of Action) (6) Fraudulent Concealment and Negligent Misrepresentation (Tenth and Eleventh Causes of Action) (7) Violation of multiple California Consumer Protection Statutes (Twelfth through Fifteenth Causes of Action) (8) Declaratory Judgment (Twenty-First Cause of Action) and (9) Injunctive Relief (Twenty-Second Cause of Action). Defendant moves to dismiss each, and the Court addresses each in turn below. Express Warranty Defendant moves to dismiss Plaintiff's claim for breach of express warranty because (1) Plaintiff does not allege facts establishing Defendant breached an express warranty (2) Plaintiff did not satisfy the 30-day notice terms of the warranty; (3) Plaintiff does not identify any specific statements contained in marketing materials, nor allege facts showing he relied on any such statements; and (4) Plaintiff lacks privity of contract with Defendant. Plaintiff argues his express warranty claim should proceed because the warranty (1) fails of its essential purpose (2) is unconscionable and (3) does not require privity. Plaintiff also asserts that Defendant created additional warranties through its marketing materials. The Court first considers Defendant's argument that Plaintiff has failed to sufficiently allege a breach, and finding that Plaintiff's allegations fall short turns to Plaintiff's arguments for unenforceability of contract. Breach A manufacturer's liability for breach of an express warranty derives from the terms of the warranty itself. The warranty in this case provides that TAMKO's obligation is limited to providing the owner with a Material Certificate for replacement shingles, prorated over the life of the limited warranty. Plaintiff alleges he made a claim in June 2015, replaced the shingles in June 2015, received from Defendant a certificate for a prorated amount of replacement shingles on August 14, 2015, and thereafter refused the offer. Plaintiff may not be happy with the remedy provided, but Plaintiff's refusal to accept that remedy does not constitute a breach by Defendant, where Defendant fulfilled its obligations under the terms of the warranty. The Court agrees with Defendant that the Amended Complaint fails to sufficiently allege facts that establish a breach of the limited warranty. Essential Purpose Regardless, Plaintiff contends that he was not limited to the remedy contained in the warranty because the warranty fails of its essential purpose and is unconscionable. A limited warranty fails of its essential purpose only if, after multiple attempts, the warrantor fails to repair the defects in a reasonable timeframe. Plaintiff argues the warranty fails of its essential purpose because allowing Defendant to provide replacement shingles would have been futile, since the replacement shingles would suffer from the same latent defects as the original shingles. Simply put, a plaintiff cannot assert failure of essential purpose where the defendant was not given the opportunity to repair, replace, or adjust the problem. Here, Plaintiff alleges he replaced the shingles the same month he filed a claim with Defendant and before Defendant had the opportunity to respond to his warranty claim. On these factual allegations, Plaintiff has not shown he was excused from allowing Defendant the opportunity to repair the shingles, and therefore the express warranty cannot be said to have failed of its essential purpose. Unconscionability Similarly, Plaintiff argues the express warranty was unconscionable because TAMKO, and only TAMKO, knew of the shingles' latent defects, withheld that information, and then limited the remedy to replacement with equally defective shingles. In California, an allegation of unconscionability requires a showing that the warranty is both procedurally and substantively unconscionable. For a warranty to be substantively unconscionable, the result must be so outrageous as to shock the conscience of the court. Broad allegations of procedural unconscionability claiming a lack of bargaining power or lack of choice are insufficient to state a claim for unconscionability. The Court finds the warranty here was not substantively unconscionable because the terms of the contract and/or its result are not so outrageously unfair as to shock the conscience. The court there found the plaintiff's contention of substantive unconscionability invalid because California law specifically allows sellers to limit the warranty remedies available to buyers. Here, Plaintiff's argument of substantive unconscionability similarly fails because a warranty that limits the buyer's remedy to replacement of a defective part does not shock the Court's conscience. Privity Plaintiff's assertion that express warranty claims do not require privity of contract is similarly misplaced. Here, Plaintiff alleges a builder installed the shingles on a home that Plaintiff purchased months later, and Plaintiff was not aware Defendant manufactured the roofing shingles until ten years after that. Plaintiff's allegations show he could not have relied on Defendant's written warranty or advertising material in purchasing the product, or in this case, in purchasing his home that contained the shingles. Plaintiff cannot plausibly plead reliance on Defendant's written warranty or advertising and, therefore, is required to show privity of contract to pursue the breach of express warranty claim. He has not done so. Accordingly, the Court GRANTS Defendant's motion to dismiss Plaintiff's breach of express warranty claim. A district court may deny a plaintiff leave to amend if it determines that allegations of other facts consistent with the challenged pleading could not possibility cure the deficiency, or if the plaintiff had several opportunities to amend its complaint and repeatedly failed to cure deficiencies. Plaintiff has had two opportunities to allege facts sufficient to support his breach of express warranty claim and has not done so. Further, it does not appear Plaintiff can cure the deficiencies by alleging additional facts because the issue is not a lack of factual support for Plaintiff's claim, but rather that Plaintiff's factual allegations show his claim is not viable because he cannot allege privity. In other words, the Court finds Plaintiff cannot allege additional facts consistent with the present allegations that would cure the deficiencies identified above. It would therefore be futile to allow further opportunities to amend this claim. Accordingly, dismissal of Plaintiff's claim for breach of express warranty is without leave to amend. Implied Warranties of Merchantability and Fitness for Purpose Defendant argues Plaintiff's implied warranty claims fail because (1) Defendant expressly disclaimed the implied warranties (2) Plaintiff does not allege he experienced problems with the shingles within the warranty period (the first year of purchase) and (3) Plaintiff does not allege privity of contract with Defendant. For his part, Plaintiff argues that the implied warranty disclaimers are unenforceable because (1) the warranty fails of its essential purpose, as discussed above and (2) the implied warranty disclaimer is unconscionable. Plaintiff also argues his claims are timely and direct privity is not required where a plaintiff is a third-party beneficiary. Failure of Essential Purpose and Unconscionability The Court has already addressed Plaintiff's argument that the warranty fails of its essential purpose and does not repeat that discussion here. Because the Court found the warranty does not fail of its essential purpose, Plaintiff's derivative argument does not render the disclaimers unenforceable. Plaintiff's argument regarding unconscionability is slightly different from that asserted with respect to the express warranty in that Plaintiff asserts that the implied warranty disclaimer itself is unconscionable, presumably apart from the unconscionability of the warranty. The analysis, however, is the same. As above, Plaintiff has not alleged facts supporting that the disclaimer or its results "shock the conscience" such that the Court might find substantive unconscionability. Privity With regard to privity, the parties do not dispute that the rule of privity generally applies to implied warranty claims in California. Plaintiff, however, argues privity is not required for implied warranty claims brought by third-party beneficiaries under California Commercial Code Section 2314. Plaintiff argues that Defendant sold its product through a network of retailers, dealers, and distributors who were not the intended beneficiaries of the warranties. Instead, because Plaintiff and the class were the ultimate consumers and intended third-party beneficiaries, they may bring implied warranty claims. Defendant on the other hand argues that implied warranty claims generally require privity or an exception to privity, and the third-party beneficiary exception is not recognized by California courts in the consumer warranty context. Under California Commercial Code section 2314 a plaintiff asserting breach of warranty claims must stand in vertical contractual privity with the defendant, meaning buyer and seller are in adjoining links of the distribution chain. Here, Plaintiff alleges Defendant sold its shingles through retailers, dealers, installers, and distributors, a builder installed those shingles on Plaintiffs' home months before he purchased it and Plaintiff only discovered years later that Defendant was the manufacturer. The Court, having found a lack of privity and insufficient allegations of unconscionability and failure of purpose, need not and does not address Defendant's additional arguments for dismissal. Defendant's motion to dismiss Plaintiff's claims for implied warranty of merchantability and fitness for purpose is GRANTED. Strict Liability, Negligence, and Negligent Failure to Warn Defendant argues California's economic loss rule bars Plaintiff's claims for strict liability, negligence, and negligent failure to warn. Plaintiff argues the economic loss rule does not apply because he sufficiently alleges damage to other property. In California, under the economic loss rule, a manufacturer or distributor may be strictly liable or liable for negligence for injury to property caused by a defective product, but is not liable in tort for purely economic loss. A plaintiff can recover in tort when the product defect causes damage to other property," or in other words, property other than the product itself. Defendant previously raised this issue and Plaintiff did not take the opportunity to add sufficient allegations in the amended complaint. The original complaint contained the same language in paragraph 25 that Plaintiffs suffered damage to underlying structures. In the section of the original complaint with Plaintiff's allegations, paragraph 53 reads, "[i]n June 2015, Snyder had his defective TAMKO roof replaced at a cost of approximately $12,000, an expense he should not have had to incur for another two decades. In its first motion to dismiss, Defendant argued these two allegations were insufficient to show more than economic loss, but Plaintiff's only change was to add the phrase in order to avoid further damage to paragraph 61. On the other hand, all other named plaintiffs were able to allege specific damage to specific identifiable property. Given the clear allegations of the other named plaintiffs compared to the paucity of information presented in Plaintiff's specific allegations, and the tactful avoidance of clarification regarding whether Plaintiff is one of the Plaintiffs who suffered damage to underlying structures, the only reasonable inference the Court can draw is that Plaintiff cannot properly allege damage to other property. As a result, the economic loss rule bars Plaintiff's claims for strict liability, negligence, and negligent failure to warn. Defendant's motion to dismiss Plaintiff's Claims Four, Five, Six, Seven, and Eight is GRANTED. Because Plaintiff has had two opportunities to sufficiently allege damage to other property and has failed to do so, dismissal is without leave to amend. Claims Sounding in Fraud Defendant moves the Court to dismiss Plaintiff's claim for fraudulent concealment because Plaintiff (1) has not adequately alleged a duty to disclose on the part of TAMKO and (2) has not pleaded the particulars of TAMKO's alleged concealment, as required under Rule 9(b). Relatedly, Defendant moves to dismiss Plaintiff's claims for negligent misrepresentation and Plaintiff's claims brought under California's consumer protection laws (CLRA, UCL, and FAL) because Plaintiff (1) has not plausibly alleged reliance and (2) has not met the heightened pleading standard of Rule 9(b). In response, Plaintiff argues (1) he has adequately alleged specific facts to state a claim for fraudulent concealment, including a duty to disclose (2) reliance on Defendant's representations can be inferred (3) the CLRA, UCL, and FAL claims are held to a reduced pleading standard under Rule 9(b) and (4) the UCL claim alleges an unfair act, and so reliance is not required. Plaintiff additionally asserts that he has pleaded violations of the UCL under the unfair and unlawful prongs as well. Federal Rule of Civil Procedure Rule 9(b) - Actual Knowledge. Plaintiff's claims of negligent misrepresentation, fraudulent concealment, and violations of the CLRA, UCL, and FAL are each based, generally, on allegations that Defendant made representations or omissions concerning the quality and performance of its shingles that it knew or should have known were false, while concealing the truth about its product. Because Plaintiff asserts a unified course of fraudulent conduct, each claim is grounded in fraud or sounds in fraud and therefore must meet the heightened pleading requirements of Rule 9(b). Under Rule 9(b), allegations of fraud must be alleged with particularity. In the case of fraudulent concealment or omission, it is true that the heightened standard does not necessarily require a plaintiff to allege the specific time of an omission or the place it occurred because doing so would generally not be possible. Here, Plaintiff alleges Defendant had actual knowledge because Defendant was in a position of superiority to the Plaintiffs and the Class members, knew of warranty claim submissions, and knew or should have known of consumer complaints. These allegations are the type of conclusory allegations that that are not sufficient to support the conclusion that Defendant obtained actual knowledge of the specific defect, nor do they come close to establishing that Defendant knew of the defect prior to Plaintiff's purchase. Plaintiff also quotes passages of frustrated customer postings from two consumer websites to support his claims. However, Plaintiff has not alleged any connection between the consumer websites and Defendant. Plaintiff thus does not sufficiently allege Defendant had actual knowledge of the alleged defects prior to Plaintiff's purchase, and his claims of fraudulent concealment, as well as those brought under the UCL, FAL, and CLRA, are therefore DISMISSED. Actual Reliance Additionally, Plaintiff has failed to allege that he was exposed to any specific marketing or warranty messages and relied on those messages in purchasing the defective product or, in this case, in purchasing his home. In order to successfully allege violations under the UCL, FAL, and CLRA, a plaintiff must set forth facts supporting that he was exposed to and actually relied on certain misrepresentations or omissions in purchasing the defective product. The same is true for a claims of negligent misrepresentation and fraudulent concealment. To establish actual reliance, a plaintiff must allege that the defendant's misrepresentation or nondisclosure was an immediate cause of the plaintiff's injury-producing conduct. Here, Plaintiff does not sufficiently allege reliance on any misrepresentation or omission. Indeed, Plaintiff's allegation concedes that he purchased his home in 2005 and became aware that the shingles were Defendant's Heritage 30 shingles in 2015. These allegations do not square with the assertion that Plaintiff relied on Defendant's misrepresentations or omissions when he purchased his home because it reveals Plaintiff became aware of the manufacturer of his home's shingles ten years after he purchased the home. The Court understands Plaintiff's argument that such an interpretation of the reliance requirement does not account for the realities of the roofing industry an industry that contemplates the transferability of its representations to the subsequent owners. But Plaintiff cites to no case law in support of its argument, and the Court is aware of none. Indeed, it seems that absent reliance on a statement or omission, Plaintiff's requested relief would come in the form of a warranty claim, and not one grounded in fraud. For this additional reason, Plaintiff's claims based in fraud must be DISMISSED. Additional UCL Accusations Plaintiff also argues he has stated additional violations under the UCL's unlawful and unfair prongs. Plaintiff is correct that each prong of the UCL comprises a separate and distinct theory of liability. However, if a UCL claim is grounded in fraud, the entire claim must meet the heightened pleading requirement of Rule 9(b). Here, Plaintiff's UCL claim sounds in fraud, and so Plaintiff's entire UCL claim must be pleaded with particularity under Rule 9(b). As discussed above, Plaintiff has not met this standard. Accordingly, the Court GRANTS Defendant's motion to dismiss claims 10, 11, 13, 14, and 15. Because this is Plaintiff's second attempt to sufficiently allege claims sounding in fraud, and because Plaintiff is unable to allege either Defendant's actual knowledge or Plaintiff's reliance on any misrepresentation or omission, dismissal is without leave to amend. Unjust Enrichment Defendant seeks dismissal of Plaintiff's claim for unjust enrichment, arguing California does not recognize unjust enrichment as an independent cause of action. Plaintiff acknowledges this, but urges the Court to allow the claim to proceed by construing it as a quasi-contract claim seeking restitution. Plaintiff further argues that it has properly pleaded unjust enrichment as an alternative to its breach of warranty claim. In reply, Defendant asserts that two recent cases both from the Northern District of California have made clear that [such alternate pleading] is not permitted. It is true that California courts have concluded that unjust enrichment is not an independent cause of action, but rather a theory that permits recovery on other recognized causes of action. Courts may, however, construe a cause of action for unjust enrichment as a quasi-contract claim seeking restitution. Even so, claims based in quasi-contract may be dismissed where they are rooted in the same subject matter covered by an express contract. This is because an unjust enrichment claim does not lie where the parties have an enforceable express contract. Plaintiff seems to argue in opposition that because he alleges the limitations and exclusions of the warranty are unconscionable, the existence of an enforceable contract is disputed or denied and so he can plead unjust enrichment as an alternative to his contract-based claims. Such an alternately-pleaded claim may proceed where a party obtained a benefit by fraud or similar conduct, or where the contract in question is otherwise unenforceable. At this early stage of litigation, Plaintiff may plead inconsistent causes of action, even though he will be precluded from ultimately recovering under both. Here, however, the Court has found that Plaintiff has failed to adequately plead that the express warranty and/or the disclaimer are unconscionable or otherwise unenforceable. Additionally, the Court has found Plaintiff fails to state a cause of action grounded in fraud. As a result, his unjust enrichment claim pleaded in the alternative necessarily fails. In addition, there is no dispute that a claim for unjust enrichment cannot stand alone without a cognizable claim under a quasi-contractual theory or some other form of misconduct. Thus, because Plaintiff's claim for unjust enrichment is premised on the same factual allegations as his other causes of action, it must be dismissed for this additional related reason. Song-Beverly Act Defendants argue that the operative version of the Song-Beverly Act at the time Plaintiff alleges his shingles were installed in 2004 did not include shingles as a consumer good covered by the Act, and that the current version that includes shingles is not retroactive. In response, Plaintiffs argue that shingles are consumer goods within the meaning of the current version of the Act, and that Defendants rely upon a case that interprets a prior version of the Act, a case that has been abrogated by the more-recent amendment to the Act. The Song-Beverly Act was indeed amended in 2004 to include goods that cannot be serviced or repaired because of the method of attachment or because the goods have become so affixed to real property to become a part thereof. The parties agree Plaintiff's shingles at issue were installed in 2004, while the former version of the Song-Beverly Act was operative. Plaintiff's shingles, therefore, were not consumer goods covered by the former version of the Song-Beverly Act. Accordingly, the Court GRANTS Defendant's motion to dismiss Plaintiff's Snyder's Song-Beverly Consumer Warranty Act claim. Because the defect cannot be cured by amendment, the claim is DISMISSED without leave to amend. The Court hereby GRANTS Defendant's Motion to Dismiss Plaintiff Snyder's claims, without leave to amend. The Court defers ruling on Defendants' motion to dismiss as it relates to the other Plaintiffs unless and until it is determined that this Court is the proper venue for the remainder of this action. As such, Defendants are ordered to re-notice such a motion before the Court, if at all, not later than 14 days following issuance of an order confirming that venue is proper in this Court. A full-text copy of the District Court's September 30, 2019 Memorandum and Order is available at https://tinyurl.com/y3fqcfs2 from Leagle.com. Jeffrey Snyder, Martin Melnick & Beth Melnick, Plaintiffs, represented by Charles E. Schaffer - cschaffer@lfsblaw.com - Levin Sedran & Berman, pro hac vice, Jacob M. Polakoff - jpolakoff@bm.net - Berger Montague PC, pro hac vice, Lawrence Deutsch – ldeutsch@bm.net - Berger Montague PC, pro hac vice, Richard Norman Sieving - rsieving@sievinglawfirm.com - The Sieving Law Firm A.P.C., Shanon J. Carson - scarson@bm.net - Berger and Montague, pro hac vice & Luke Gabriel Pears-Dickson - lpearsdickson@sievinglawfirm.com - Sieving Law Firm, APC. Lia Louthan & Summerfield Gardens Condominium, Plaintiffs, represented by Charles E. Schaffer , Levin Sedran & Berman, pro hac vice, Jacob M. Polakoff , Berger Montague PC, pro hac vice & Richard Norman Sieving , The Sieving Law Firm A.P.C. Tamko Building Products, Inc., Defendant, represented by Charles Stephen Painter , Ericksen Arbuthnot, 100 Howe Ave #110 S, Sacramento, CA 95825, Jessica D. Miller -jessica.miller@skadden.com - Skadden, Arps, Slate, Meagher & Flom, LLP, pro hac vice, John H. Beisner - john.beisner@skadden.com - Skadden Arps Slate Meagher & Flom, LLP & Richard T. Bernardo - richard.bernardo@skadden.com - Skadden Arps Slate Meagher & Flom, LLP, pro hac vice. TEXAS: Court Denies Robles' Bid to Certify Class and for New Trial ------------------------------------------------------------------ The Hon. Fred Biery denied the motion seeking class certification and seeking a motion for new trial filed by the Plaintiff in the lawsuit titled STEVEN ROBLES v. STATE OF TEXAS, S.A.P.D. CHIEF McMANUS, SHERIFF SALAZAR, and S.A.P.D. OFFICER J. DIEL, Case No. 5:17-cv-01017-FB (W.D. Tex.). On October 6, 2017, Plaintiff Steven Robles filed a Civil Rights Complaint pursuant to 42 U.S.C. Section 1983. The Plaintiff was subsequently granted leave to proceed in forma pauperis. On January 3, 2018, the Plaintiff's Section 1983 Complaint was dismissed with prejudice for failure to state a non-frivolous civil rights claim and because the Plaintiff was seeking monetary relief against immune Defendants. On September 3, 2019, approximately 20 months after a judgment was entered dismissing the Plaintiff's Section 1983 Complaint, the Plaintiff filed the present motion requesting class certification and seeking a motion for new trial. The Plaintiff's motion is denied as untimely and moot. Further, to the extent the Plaintiff's motion can be construed as a Rule 60(b)(6) motion, the Plaintiff fails to present any reason justifying relief from the operation of the judgment, Judge Biery opines.[CC] UBER TECHNOLOGIES: $20MM O'Connor Suit Settlement Gets Final OK --------------------------------------------------------------- In the case, DOUGLAS O'CONNOR, et al., Plaintiffs, v. UBER TECHNOLOGIES, INC., et al., Defendants, Case No. 13-cv-03826-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California granted the Plaintiffs' (i) Motion for Final Approval of Class Action Settlement Agreement and Release, and (i) Motion for Attorneys' Fees. The Plaintiffs brought two lawsuits against Defendant Uber, alleging that Uber misclassifies its drivers as independent contractors rather than as employees. Five years of contentious litigation ensued. The parties eventually entered into an agreement to settle both suits, and on March 29, 2019, the Court granted preliminary approval to the parties' class action settlement. The Settlement Agreement covers all Drivers in California and Massachusetts who have used the Uber App at any time since Aug. 16, 2009, up to and including Feb. 28, 2019, and who have validly opted out of arbitration or for whom Uber has no record of acceptance of an arbitration agreement. In exchange for the Class Members' release of their claims, the Settlement provides monetary and non-monetary consideration. The monetary component of the Settlement is a $20 million non-reversionary fund. From the fund, $5 million will be deducted for attorneys' fees, approximately $311,092 will be awarded for attorneys' out-of-pocket expenses related to the litigation, $300,000 will be awarded for costs of claims administration, and $40,000 will be ordered as incentive awards for the Settlement Class representatives. The remainder -- an estimated $14,348,900 -- will be distributed to Class Members who timely submitted claims. Each claimant's share will be calculated in proportion with the number of miles he or she drove for Uber, based on relevant records that Uber is able to identify following a good-faith inquiry. The Plaintiffs' counsel estimates that the Class Members who drove 0-1,000 miles will receive approximately $360, those who drove 10,000 miles will receive $4,000, and those who drove 100,000 miles will receive $36,000. The average settlement share for each claiming Class Member, after attorneys' fees are deducted, will be approximately $2,206. The Court, in granting preliminary approval of the proposed settlement, found the Plan of Allocation -- outlining the monetary recovery, on a pro rata basis, to all members of the Settlement Class who file a timely claim -- to be fair and reasonable. On April 19, 2019, the Plaintiffs filed a Fifth Amended Complaint, as required by the Settlement Agreement. The Fifth Amended Complaint adds (1) claims pertaining to unjust enrichment, conversion, and fraud, based upon Uber's failure to remit to drivers the entire gratuity paid by customers or tips they might have otherwise received; (2) claims pertaining to various violations of the California Labor Code "stemming from drivers' misclassification as independent contractors"; and (3) claims pertaining to violations of the federal Fair Labor Standards Act. Seventeen claims were added in total. The Class Members were directed to file claims by Aug. 17, 2019, and as of Aug. 23, 2019, the Settlement Administrator had received 5,627 timely Claim Forms accounting for 67.3% of the settlement fund (assuming 100% participation). Judge Chen finds that the final approval factors indicate that the Settlement Agreement is fair, reasonable, and adequate. The Parties have evidenced full compliance with the Court's Preliminary Approval Order and other Orders relating to the Settlement. The class reaction has been overwhelmingly favorable. The Judge therefore granted the Plaintiffs' Motion for Final Approval of Class Action Settlement Agreement and Release, and their Motion for Attorneys' Fees. He granted final approval to the Settlement and to the Plan of Allocation. The Settlement Agreement is incorporated into the Court's Final Approval Order. The Judge finds, under Fed. R. Civ. P. 54(b), that there is no just reason for delay in entering final judgment and directed that the Judgment will be final and entered forthwith. He confirmed the previous appointment of the law firm of Lichten & Liss-Riordan, P.C. as the Class Counsel. On May 14, 2019, the Plaintiffs filed a Motion for Attorneys' Fees, seeking $5 million in attorneys' fees and costs, which is consistent with the Ninth Circuit's 'benchmark' award of 25% of the common fund. They contend that the Plaintiffs' fees, had they charged fees up front, were approximately $6 million, and their expenses came to approximately $311,000. The Judge finds that the Class Counsel have adequately represented the Settlement Class for purposes of entering into and implementing the Settlement and awrded to the Class Counsel attorneys' fees in the amount of $5 million to be paid exclusively from the Settlement Amount, as defined in the Settlement Agreement. He further awarded the Class Counsel $311,091.67 in additional out-of-pocket costs. He also confirmed previous appointment of the following people as Representatives of the Settlement Class: Matthew Manahan, Elie Gurfinkel, Pedro Sanchez, Mohktar Talha, Aaron Dulles, and Antonio Oliveira. He finds that these Class Representatives have adequately represented the Settlement Class for purposes of entering into and implementing the Settlement. The Plaintiffs request $7,500 incentive awards for Plaintiffs Matthew Manahan, Elie Gurfinkel, Pedro Sanchez, and Mohktar Talha, as well as $5,000 incentive awards for Plaintiffs Aaron Dulles and Antonio Oliveira. This represents a total of $40,000 in incentive awards. The Judge ordered that the aforementioned Incentive Awards be paid pursuant to the Settlement Agreement. The Judge confirmed its previous appointment of Epiq as the Settlement Administrator and finds that it has so far fulfilled its duties under the Settlement. He ordered that $300,000 be paid from the Settlement Amount to the Settlement Administrator for unreimbursed expenses relating to notice and administration of the Settlement with the understanding that the Settlement Administrator will be allowed to collect any additional administration fees and expenses over that amount from unclaimed funds, prior to any payment being made to the designated cy pres recipients. Pursuant to the Order and Final Judgment, with respect to the Released Parties, the Settlement Class Members' Released Claims, the Named Plaintiffs' General Released Claims, and the Authorized Claimants' Released Claims, are dismissed with prejudice and without costs. A full-text copy of the Court's Sept. 13, 2019 Order is available at https://is.gd/XDkmiQ from Leagle.com. Douglas O'Connor, Plaintiff, represented by Adelaide Pagano -- apagano@llrlaw.com -- Lichten and Liss-Riordan, P.C., pro hac vice. Douglas O'Connor, Plaintiff, represented by Andrew A. August, Browne George Ross LLP, Ben Weber -- bweber@llrlaw.com -- Lichten and Liss-Riordan, P.C., Benjamin J. Meiselas, Geragos and Geragos, APC, Brian Stephen Kabateck, Kabateck Brown Kellner LLP, Brian C. Tackenberg -- btackenberg@crabtreelaw.com -- pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr. -- gbaise@crabtreelaw.com -- pro hac vice, Jennifer R. Liakos, Napoli Shkolnik PLLC, John Granville Crabtree, pro hac vice, Mark J. Geragos, Geragos & Geragos, APC, Matthew David Carlson -- mcarlson@llrlaw.com -- Lichten & Liss- Riordan, P.C., Sara Smolik, Lichten and Liss-Riordan, P.C., Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C. & Shant Arthur Karnikian -- sk@kbklawyers.com -- Kabateck Brown Kellner LLP. Thomas Colopy, Plaintiff, represented by Adelaide Pagano, Lichten and Liss-Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Matthew David Carlson, Lichten & Liss-Riordan, P.C., Sara Smolik, Lichten and Liss-Riordan, P.C. & Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C.. Matthew Manahan, individually and on behalf of all others similarly situated, Plaintiff, represented by Adelaide Pagano, Lichten and Liss-Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Matthew David Carlson, Lichten & Liss-Riordan, P.C. & Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C. Elie Gurfinkel, individually and on behalf of all others similarly situated, Plaintiff, represented by Adelaide Pagano, Lichten and Liss-Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Ben Weber, Lichten and Liss-Riordan, P.C., Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Matthew David Carlson, Lichten & Liss-Riordan, P.C. & Shannon Liss- Riordan, Lichten & Liss-Riordan, P.C. Ronald Gillette, Plaintiff, represented by Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C., Adelaide Pagano, Lichten and Liss- Riordan, P.C., pro hac vice, Andrew A. August, Browne George Ross LLP, Andrew Paul Lee, Goldstein, Borgen, Dardarian & Ho, Brian C. Tackenberg, pro hac vice, Charles Morris Auslander, Crabtree and Auslander, pro hac vice, George R. Baise, Jr., pro hac vice, John Granville Crabtree, pro hac vice, Theodore Walter Maya, Ahdoot & Wolfson, P.C. & William Copley Jhaveri-Weeks, Goldstein, Borgen, Dardarian & Ho. Uber Technologies, Inc., Defendant, represented by Andrew Michael Spurchise -- aspurchise@littler.com -- Littler Mendelson, P.C., Marcellus Antonio McRae -- mmcrae@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Theane D. Evangelis -- tevangelis@gibsondunn.com -- Gibson Dunn & Crutcher LLP, Theodore J. Boutrous, Jr. -- tboutrous@gibsondunn.com -- Attorney at Law, Brandon J. Stoker -- bstoker@gibsondunn.com -- Gibson Dunn and Crutcher LLP, Debra Wong Yang -- dwongyang@gibsondunn.com -- Gibson, Dunn Crutcher LLP, Dhananjay Saikrishna Manthripragada -- dmanthripragada@gibsondunn.com -- Gibson Dunn and Crutcher, John C. Fish, Jr. -- jfish@littler.com -- Littler Mendelson, PC, Joshua Seth Lipshutz -- jlipshutz@gibsondunn.com -- Gibson, Dunn and Crutcher LLP, Kevin Joseph Ring-Dowell -- kringdowell@gibsondunn.com -- Gibson, Dunn & Crutcher LLP, Stephen A. Swedlow -- stephenswedlow@quinnemanuel.com -- Quinn Emanuel Urquhart & Sullivan, LLP, pro hac vice & Theane Evangelis Kapur, Gibson, Dunn & Crutcher LLP. 7x7 Executive Transportation LLC, Defendant, represented by James Parton, III, Parton & Sell PC. Rasier-CA, LLC, Defendant, represented by Andrew Michael Spurchise, Littler Mendelson, P.C.. Caren Ehret, Movant, represented by Myron Milton Cherry -- mcherry@cherry-law.com -- Myron M. Cherry & Associates LLC. Ricardo Del Rio, Movant, represented by Christopher James Hamner -- chamner@hamnerlaw.com -- Hamner Law Offices, APC, Amy Tai Wootton, Hamner Law Offices, APC, Benjamin J. Meiselas, Geragos and Geragos, APC, Brian Stephen Kabateck, Kabateck Brown Kellner LLP, Joshua H. Haffner, Kabateck Kellner LLP, Mark J. Geragos, Geragos & Geragos, APC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Greg Fisher, Movant, represented by Christopher James Hamner, Hamner Law Offices, APC. John Doe, Movant, Pro Se. Todd Johnston, Movant, represented by Brian J. Malloy, The Brandi Law Firm. Steven Price, Interested Party, represented by Christopher John Morosoff, Law Office of Christopher J. Morosoff & Douglas Caiafa, Attorney at Law. City of Cleveland, Ohio, Interested Party, represented by Carl E. Meyer, City of Cleveland. Rosario Richardson, Interested Party, represented by Carey A. James -- caj@asmlawyers.com -- Aiman-Smith and Marcy & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Kathy Robinson, Interested Party, Pro Se. Leticia Alcala, Objector, represented by Hunter J. Shkolnik, Napoli Shkolnik PLLC, Paul Napoli, Napoli Shkolnik PLLC, pro hac vice, Jennifer R. Liakos, Napoli Shkolnik PLLC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Marc Borgen, Objector, represented by Hunter J. Shkolnik, Napoli Shkolnik PLLC, Paul Napoli, Napoli Shkolnik PLLC, Jennifer R. Liakos, Napoli Shkolnik PLLC & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Knapp, Petersen & Clarke, Objector, represented by Andre Emilio Jardini -- aej@kpclegal.com -- Knapp Petersen & Clarke. Uladzimir Tabola, Objector, represented by Alexei Kuchinsky -- alexei@sfbizlaw.com -- Klein Law Group & Shant Arthur Karnikian - sk@kbklawyers.com -- Kabateck Brown Kellner LLP. Alexander Kazakov, Objector, represented by Alexei Kuchinsky, Klein Law Group & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Yahor Zgurski, Objector, represented by Alexei Kuchinsky, Klein Law Group & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Maksim Hancharuk, Objector, represented by Alexei Kuchinsky, Klein Law Group. Omar Zine, Objector, represented by Christopher John Gansen, Gansen Law Group & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. Nahabet Narsis, Objector, represented by Kevin Todd Barnes, Law Offices of Kevin T. Barnes. Jorge Zunigas, Objector, represented by Mark Alan Morrison -- markmorrison@paulhastings.com -- Morrison and Associates. Jason Rosenberg, Objector, represented by Mark Alan Morrison, Morrison and Associates. David Lanier, Amicus, represented by Christopher G. Jagard, McCurdy Ku & John Cumming, Department of Industrial Relations. Abdo Ghazi, Intervenor, represented by Alec Llewellyn Segarich, Lohr Ripamonti & Segarich LLP, Conor Daniel Granahan, Law Offices of Conor Granahan, Jason Shelton Lohr, Lohr Ripamonti & Segarich LLP & Shant Arthur Karnikian, Kabateck Brown Kellner LLP. UNDER ARMOUR: Aberdeen Council Appeals Ruling in Securities Suit ---------------------------------------------------------------- Plaintiffs Aberdeen City Council and Bucks County Employees Retirement Fund filed an appeal from a Court ruling entered in their lawsuit entitled Aberdeen City Council, et al. v. Under Armour, Inc., et al., Case No. 1:17-cv-00388-RDB, in the U.S. District Court for the District of Maryland at Baltimore. As previously reported in the Class Action Reporter, the Plaintiffs bring the putative class action against Under Armour, certain directors, and underwriters alleging violations of federal securities laws. The Plaintiffs bring the federal class action under the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, against Under Armour, Plank, Molloy, and Dickerson ("Exchange Act Defendants"). Separately, Buck brings the federal class action under the Securities Act of 1933, and the rules promulgated thereunder, against Under Armour, Plank, Molloy, the Director Defendants, and the Underwriter Defendants ("Securities Act Defendants"). The appellate case is captioned as Aberdeen City Council, et al. v. Under Armour, Inc., et al., Case No. 19-2032, in the United States Court of Appeals for the Fourth Circuit.[BN] Plaintiffs-Appellants ABERDEEN CITY COUNCIL, as Administrating Authority for the North East Scotland Pension Fund, and BUCKS COUNTY EMPLOYEES RETIREMENT FUND, Individually and on behalf of all others similarly situated, are represented by: Stephen R. Astley, Esq. Elizabeth A. Shonson, Esq. ROBBINS GELLER RUDMAND & DOWD 120 East Palmetto Park Road Boca Raton, FL 33432 Telephone: (561) 750-3000 E-mail: SAstley@rgrdlaw.com eshonson@rgrdlaw.com - and - Christopher R. Kinnon, Esq. ROBBINS GELLER RUDMAN & DOWD, LLP 655 West Broadway San Diego, CA 92101-0000 Telephone: (619) 231-1058 E-mail: ckinnon@rgrdlaw.com - and - William Nelson Sinclair, Esq. SILVERMAN, THOMPSON, SLUTKIN & WHITE LLC 201 North Charles Street Baltimore, MD 21201-0000 Telephone: (410) 385-2225 E-mail: bsinclair@mdattorney.com Plaintiff-Appellant ABERDEEN CITY COUNCIL, as Administrating Authority for the North East Scotland Pension Fund, is represented by: Austin P. Brane, Esq. Robert R. Henssler, Jr., Esq. ROBBINS GELLER RUDMAN & DOWD, LLP 655 West Broadway San Diego, CA 92101-0000 Telephone: (619) 231-1058 E-mail: abrane@rgrdlaw.com bhenssler@rgrdlaw.com - and - Mark J. Dearman, Esq. Jack Reise, Esq. ROBBINS GELLER RUDMAND & DOWD 120 East Palmetto Park Road Boca Raton, FL 33432 Telephone: (561) 750-3000 E-mail: mdearman@rgrdlaw.com jreise@rgrdlaw.com - and - Pierce C. Murphy, Esq. Andrew Clayton White, Esq. SILVERMAN, THOMPSON, SLUTKIN & WHITE LLC 201 North Charles Street Baltimore, MD 21201-0000 Telephone: (443) 909-7488 E-mail: pmurphy@mdattorney.com awhite@mdattorney.com Defendant-Appellee UNDER ARMOUR, INCORPORATED, is represented by: Samuel P. Groner, Esq. Michael P. Sternheim, Esq. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP 1 New York Plaza New York, NY 10004-8032 Telephone: (212) 859-8000 E-mail: samuel.groner@friedfrank.com michael.sternheim@friedfrank.com - and - Michael Jackman Wilson, Esq. VENABLE, LLP 750 East Pratt Street Baltimore, MD 21202 Telephone: (410) 244-7614 E-mail: mjwilson@Venable.com Defendant-Appellee UNDER ARMOUR, INCORPORATED, BYRON K. ADAMS, JR., GEORGE W. BODENHEIMER, DOUGLAS E. COLTHARP, ANTHONY W. DEERING, KAREN W. KATZ, A. B. KRONGARD, WILLIAM R. MCDERMOTT, ERIC T. OLSON and HARVEY L. SANDERS are represented by: James D. Wareham, Esq. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP 801 17th Street Washington, DC 20006 Telephone: (202) 639-7040 E-mail: james.wareham@friedfrank.com - and - George Stewart Webb, Jr., Esq. VENABLE, LLP 750 East Pratt Street Baltimore, MD 21202 Telephone: (410) 244-7400 E-mail: gswebb@Venable.com Defendant-Appellee KEVIN A. PLANK is represented by: Scott R. Haiber, Esq. HOGAN LOVELLS US LLP Harbor East 100 International Drive Baltimore, MD 21202-0000 Telephone: (410) 659-2776 E-mail: scott.haiber@hoganlovells.com - and - Jon M. Talotta, Esq. HOGAN LOVELLS US LLP 8350 Broad Street Tysons, VA 22102-0000 Telephone: (703) 610-6100 E-mail: jon.talotta@hoganlovells.com Defendants-Appellees LAWRENCE P. MOLLOY and BRAD DICKERSON are represented by: Adam Ben Abelson, Esq. ZUCKERMAN SPAEDER, LLP 100 East Pratt Street Baltimore, MD 21202-0000 Telephone: (410) 949-1148 E-mail: aabelson@zuckerman.com - and - Eric Robert Delinsky, Esq. Steven Mark Salky, Esq. ZUCKERMAN SPAEDER, LLP 1800 M Street, NW Washington, DC 20036 Telephone: (202) 778-1831 E-mail: edelinsky@zuckerman.com ssalky@zuckerman.com Defendants-Appellees JP MORGAN SECURITIES, LLC; MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED; WELLS FARGO SECURITIES, LLC; HSBC SECURITIES (USA) INC.; PNC CAPITAL MARKETS, LLC; BB&T CAPITAL MARKETS; SUNTRUST ROBINSON HUMPHREY, INC.; CITIGROUP GLOBAL MARKETS, INCORPORATED; GOLDMAN SACHS & COMPANY, LLC; REGIONS SECURITIES, LLC; and SMBC NIKKO SECURITIES AMERICA, INC., are represented by: Amanda F. Davidoff, Esq. SULLIVAN & CROMWELL, LLP 1700 New York Avenue, NW Washington, DC 20006-5215 Telephone: (202) 956-7500 E-mail: davidoffa@sullcrom.com UNITED FINANCIAL: Gordon Seeks to Enjoin People's United Merger --------------------------------------------------------------- MICHAEL GORDON, Individually and on Behalf of All Others Similarly Situated v. UNITED FINANCIAL BANCORP, INC., ROBERT A. STEWART, JR., RAYMOND H. LEFURGE, JR., WILLIAM H. W. CRAWFORD, IV, CAROL A. LEARY, KRISTEN A. JOHNSON, MICHAEL F. CROWLEY, KEVIN E. ROSS, MICHAEL A. BARS, and PAULA A. AIELLO, Case No. 1:19-cv-01787-UNA (D. Del., Sept. 23, 2019), accuses the Defendants of violating the Securities Exchange Act of 1934 in connection with the proposed merger between United Financial and People's United Financial, Inc. On July 15, 2019, the Board caused the Company to enter into an agreement and plan of merger, pursuant to which the Company's shareholders stand to receive 0.875 shares of People's United common stock for each share of United Financial stock they own. Upon completion of the merger, United Financial shareholders will own approximately 10.1% and People's United shareholders will own approximately 89.9% of the combined company. Mr. Gordon, on behalf of himself and the other public shareholders of United Financial, seeks to enjoin the Defendants from holding the shareholder vote on the Proposed Transaction and taking any steps to consummate the Proposed Transaction unless, and until, certain omitted material information is disclosed to United Financial shareholders sufficiently in advance of the vote or, in the event the Proposed Transaction is consummated, to recover damages resulting from the Defendants' violations of the Exchange Act. On August 12, 2019, in order to convince United Financial shareholders to vote in favor of the Proposed Transaction, the Board authorized the filing of a materially incomplete and misleading Form S-4 Registration Statement with the Securities and Exchange Commission, according to the complaint. In particular, the S-4/A contains materially incomplete and misleading information concerning: (i) the summary of certain valuation analyses conducted by the Company's financial advisor, Sandler O'Neill & Partners, L.P. in support of its opinion that the Merger Consideration is fair to shareholders, on which the Board relied; and (ii) the summary of certain valuation analyses conducted by the Company's financial advisor, RP Financial, LC. ("RP") in its analysis of United Financial's alternative stand-alone planning scenario, on which the Board relied. United Financial is incorporated in Connecticut and maintains its principal executive offices in Hartford, Connecticut. The Individual Defendants are directors and officers of the Company. United Financial is a publicly owned registered financial holding company. The Company's principal asset is the outstanding capital stock of United Bank, which delivers financial services to individuals, families, and businesses primarily in Connecticut and Massachusetts including retail, commercial and consumer banking, as well as financial advisory services.[BN] The Plaintiff is represented by: Michael Van Gorder, Esq. FARUQI & FARUQI, LLP 3828 Kennett Pike, Suite 201 Wilmington, DE 19807 Telephone: (302) 482-3182 E-mail: mvangorder@faruqilaw.com - and - Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Telephone: (212) 983-9330 Facsimile: (212) 983-9331 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com UNITED NATURAL: Dismissal of Data Breach Suit v. Supervalu Upheld ----------------------------------------------------------------- United Natural Foods, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on October 1, 2019, for the fiscal year ended August 3, 2019, that the U.S. Court of Appeals for the Eighth Circuit has denied plaintiff's appeal, affirming the District Court's dismissal of the class action suit entitled, In Re: SUPERVALU Inc. Customer Data Security Breach Litigation. On October 22, 2018, the Company acquired all of the outstanding equity securities of SUPERVALU INC. In August and November 2014, four class action complaints were filed against Supervalu relating to the criminal intrusion into Supervalu's computer network that were previously announced by Supervalu in its fiscal 2015. The cases were centralized in the Federal District Court for the District of Minnesota under the caption In Re: SUPERVALU Inc. Customer Data Security Breach Litigation. On June 26, 2015, the plaintiffs filed a Consolidated Class Action Complaint. Supervalu filed a Motion to Dismiss the Consolidated Class Action Complaint and the hearing took place on November 3, 2015. On January 7, 2016, the District Court granted the Motion to Dismiss and dismissed the case without prejudice, holding that the plaintiffs did not have standing to sue as they had not met their burden of showing any compensable damages. On February 4, 2016, the plaintiffs filed a motion to vacate the District Court's dismissal of the complaint or in the alternative to conduct discovery and file an amended complaint, and Supervalu filed its response in opposition on March 4, 2016. On April 20, 2016, the District Court denied plaintiffs' motion to vacate the District Court's dismissal or in the alternative to amend the complaint. On May 18, 2016, plaintiffs appealed to the 8th Circuit and on May 31, 2016, Supervalu filed a cross-appeal to preserve its additional arguments for dismissal of the plaintiffs' complaint. On August 30, 2017, the 8th Circuit affirmed the dismissal for 14 out of the 15 plaintiffs finding they had no standing. The 8th Circuit did not consider Supervalu's cross-appeal and remanded the case back for consideration of Supervalu's additional arguments for dismissal against the one remaining plaintiff. On October 30, 2017, Supervalu filed a motion to dismiss the remaining plaintiff and on November 7, 2017, the plaintiff filed a motion to amend its complaint. The court held a hearing on the motions on December 14, 2017, and on March 7, 2018, the District Court denied plaintiff's motion to amend and granted Supervalu's motion to dismiss. On March 14, 2018, plaintiff appealed to the 8th Circuit and on May 31, 2019, the 8th Circuit denied plaintiff's appeal affirming the District Court’s dismissal of the case. United Natural said, "We do not expect any further action on this case. Supervalu had $50 million of cyber threat insurance above a per incident deductible of $1 million at the time of the criminal intrusion, which the Company believes should cover any potential loss related to this litigation." No further updates were provided in the Company's SEC report. United Natural Foods, Inc., together with its subsidiaries, distributes natural, organic, and specialty foods and non-food products in the United States and Canada. The company operates through three divisions: Wholesale, Retail, and Manufacturing and Branded Products. United Natural Foods, Inc. was founded in 1976 and is headquartered in Providence, Rhode Island. UNITED NATURAL: Hearing Tomorrow on New England Plaintiff's Appeal ------------------------------------------------------------------ United Natural Foods, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on October 1, 2019, for the fiscal year ended August 3, 2019, that the United States Court of Appeals for the Eighth Circuit has set October 15, 2019, as the hearing date on a New England plaintiff's appeal. On October 22, 2018, the Company acquired all of the outstanding equity securities of SUPERVALU INC. In December 2008, a class action complaint was filed in the United States District Court for the Western District of Wisconsin against Supervalu alleging that a 2003 transaction between Supervalu and C&S Wholesale Grocers, Inc. ("C&S") was a conspiracy to restrain trade and allocate markets. In the 2003 transaction, Supervalu purchased certain assets of the Fleming Corporation as part of Fleming Corporation's bankruptcy proceedings and sold certain of Supervalu's assets to C&S that were located in New England. Three other retailers filed similar complaints in other jurisdictions and the cases were consolidated in the United States District Court in Minnesota. The complaints alleged that the conspiracy was concealed and continued through the use of non-compete and non-solicitation agreements and the closing down of the distribution facilities that Supervalu and C&S purchased from each other. Plaintiffs were divided into Midwest plaintiffs and a New England plaintiff and are seeking monetary damages, injunctive relief and attorney's fees. The Company settled with the Midwest plaintiffs in November 2017. The New England plaintiff was not a party to the settlement and is pursuing its individual claims and potential class action claims against Supervalu, which at this time are determined as remote. On February 15, 2018, Supervalu filed a summary judgment and Daubert motion and the New England plaintiff filed a motion for class certification and on July 27, 2018, the District Court granted Supervalu's motions. The New England plaintiff appealed to the 8th Circuit on August 15, 2018. Briefing on the appeal is complete and a hearing date has been set for October 15, 2019. United Natural Foods, Inc., together with its subsidiaries, distributes natural, organic, and specialty foods and non-food products in the United States and Canada. The company operates through three divisions: Wholesale, Retail, and Manufacturing and Branded Products. United Natural Foods, Inc. was founded in 1976 and is headquartered in Providence, Rhode Island. UNITED NATURAL: Mediation Underway in North County Store Suit ------------------------------------------------------------- United Natural Foods, Inc. said in its Form 10-K report filed with the U.S. Securities and Exchange Commission on October 1, 2019, for the fiscal year ended August 3, 2019, that mediation is ongoing in the class action suit entitled, North Country Store v. United Natural Foods, Inc. In November 2018, a putative nationwide class action was filed in Rhode Island state court, and which the Company removed to U.S. District Court for the District of Rhode Island. In North Country Store v. United Natural Foods, Inc., plaintiff asserts that the Company made false representations about the nature of fuel surcharges charged to customers and asserts claims for alleged violations of Connecticut's Unfair Trade Practices Act, breach of contract, unjust enrichment and breach of the covenant of good faith and fair dealing arising out of the Company's fuel surcharge practices. On March 5, 2019, the Company answered the complaint denying the allegations. A court-ordered mediation is scheduled for October 2019. United Natural said, "While the Company believes that it has meritorious defenses to the allegations and should be successful upon ultimate resolution of this matter, it also believes the risk of loss is now reasonably possible. Management is unable to estimate a range of reasonably possible loss because the case is in the very early stages, no discovery has been conducted and the plaintiff has not asserted a damage amount." United Natural Foods, Inc., together with its subsidiaries, distributes natural, organic, and specialty foods and non-food products in the United States and Canada. The company operates through three divisions: Wholesale, Retail, and Manufacturing and Branded Products. United Natural Foods, Inc. was founded in 1976 and is headquartered in Providence, Rhode Island. US CITIZENSHIP: Court Certifies Class in W.A.O. APA Suit -------------------------------------------------------- In the case, W.A.O., H.H.M.C., N.L.J., and K.M.R.L., on behalf of themselves and all others similarly situated, Plaintiffs, v. KENNETH T. CUCCINELLI II, Acting Director, U.S. Citizenship and Immigration Services; KEVIN McALEENAN, Acting Secretary, U.S. Department of Homeland Security; ROBERT COWAN, Director, National Benefits Center, U.S. Citizenship and Immigration Services; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; and UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendants, Civil Action No. 2:19-cv-11696 (MCA)(MAH)(D. N.J.), Judge Madeline Cox Arleo of the U.S. District Court for the District of New Jersey granted the Plaintiffs' Motion for Class Certification and Appointment of Class Counsel pursuant to Rules 23(a), (b)(2), and (g) of the Federal Rules of Civil Procedure. The Plaintiffs are individuals who were between the ages of 18 and 21 when they obtained orders from the Superior Court of New Jersey, Chancery Division, Family Part, making the child welfare findings necessary for Special Immigrant Juvenile ("SIJ") classification. Based on such Family Part orders, the Plaintiffs applied for SIJ classification when they were between their 18th and 21st birthdays. They filed a Complaint alleging that the Defendants have adopted and implemented a policy that disqualified SIJ applicants who obtained Family Part orders when they were between 18 and 21 years old on the grounds that: (1) the Family Part must have jurisdiction to make the required child welfare findings; and (2) the Family Part lacked such jurisdiction as to petitioners in this age group. The alleged Policy resulted in the rejection of SIJ petitions filed by juveniles in New Jersey who were between 18 and 21 years old when the Family Part issued their orders. The Plaintiffs' SIJ applications were delayed, questioned, or denied because of Defendants' alleged Policy. The putative class members also had their SIJ petitions delayed, questioned, or denied, or their SIJ classifications revoked, under the alleged Policy. The putative class consists of hundreds of juveniles who do not have the means to bring individual federal lawsuits challenging Defendants' alleged Policy. Their Complaint seeks classwide relief to permanently and preliminarily enjoin the Defendants from delaying, questioning, denying, or revoking SIJ petitions on the ground that the New Jersey Family Part does not have the jurisdiction, power, or authority to make the required child welfare findings for a juvenile between the ages of 18 and 21. The Plaintiffs' Complaint seeks further classwide relief to permanently and preliminarily enjoin the Defendants to (1) rescind alleged improper denials or revocations of the Plaintiffs' and putative class members' SIJ petitions; (2) reopen their petitions; and (3) readjudicate their petitions without relying on any requirement or policy declared invalid in the case. The Plaintiffs' counsel represents that Lowenstein Sandler LLP has extensive experience handling class action litigation and complex immigration cases, including those related to SIJ classification. The Plaintiffs' counsel represents that the firm has no interests that are in conflict with the putative class and has committed to representing the class on a pro bono basis. The matter having come before the Court on the motion of the Plaintiffs, for class certification and appointment of the class counsel pursuant to Rules 23(a), (b)(2), and (g) of the Federal Rules of Civil Procedure. Judge Arleo finds that the Plaintiffs have satisfied the Fed. R. Civ. P. 23(a) requirements. She holds that (i) the numerosity requirement of Fed. R. Civ. P. 23(a)(1) is satisfied because the Plaintiffs have established that there are more than 100 members of the putative class, and the Defendants have identified additional members of the putative class; (ii) the commonality requirement of Fed. R. Civ. P. 23(a)(2) is satisfied because common questions of law predominate in the action; (iii) the typicality requirement of Fed. R. Civ. P. 23(a)(3) is satisfied because the claims of the named Plaintiffs and putative class members involve the same conduct by the Defendant; and (iv) the adequacy requirement of Fed. R. Civ. P. 23(a)(4) is satisfied because the Plaintiffs have demonstrated the ability and the incentive to represent the claims of the class vigorously, that they've obtained adequate counsel, and that there is no conflict between their individual claims and those asserted on behalf of the class. In addition, the Judge holds that Certification under Fed. R. Civ. P. 23(b)(2) is appropriate in the case because the Plaintiffs allege that the Defendants' Policy defeats SIJ classification for all members of the putative class and because an injunction requiring Defendants to suspend that alleged Policy would provide relief to the class as a whole. Based on these Findings and Conclusions, Judge Arleo granted the Plaintiffs' Motion for Class Certification and Appointment of Class Counsel pursuant to Rules 23(a), (b)(2), and (g) of the Federal Rules of Civil Procedure. The following class is certified pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2): Individuals who have filed or will file petitions for Special Immigrant Juvenile (SIJ) classification based on New Jersey Family Part Orders that were entered between the petitioners' 18th and 21st birthdays, and whose SIJ petitions are, have been, or will be delayed, questioned, denied, or revoked on the ground that the Family Part lacks the authority, power, or jurisdiction to make the required child welfare findings as to petitioners in this age group. The Judge appointed (i) the Plaintiffs as the representatives of the class; and (ii) Lowenstein Sandler LLP as the class counsel. A full-text copy of the Court's Sept. 17, 2019 Order is available at https://is.gd/D36wL2 from Leagle.com. W.A.O., Lead Plaintiff, represented by CRAIG LAURENCE DASHIELL -- cdashiell@lowenstein.com -- LOWENSTEIN SANDLER LLP, ERIC R. SUGGS -- esuggs@lowenstein.com -- Lowenstein Sandler LLP, NATALIE JANET KRANER -- nkraner@lowenstein.com -- LOWENSTEIN SANDLER PC & CATHERINE WEISS -- cweiss@lowenstein.com -- LOWENSTEIN SANDLER. H.H.M.C., N.L.J. & K.M.R.L., Plaintiffs, represented by CRAIG LAURENCE DASHIELL, LOWENSTEIN SANDLER LLP, ERIC R. SUGGS, Lowenstein Sandler LLP, NATALIE JANET KRANER, LOWENSTEIN SANDLER PC & CATHERINE WEISS, LOWENSTEIN SANDLER. LEE FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services, KEVIN MCALEENAN, Acting Secretary, U.S. Department of Homeland Security, ROBERT COWAN, Director, U.S. Citizenship and Immigration Services - National Benefits Center, U.S. DEPARTMENT OF HOMELAND SECURITY & U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Defendants, represented by ENES HAJDARPASIC, UNITED STATES ATTORNEY'S OFFICE, DISTRICT OF NEW JERSEY. VENATOR MATERIALS: Bishop Sues over Drop in Share Prices -------------------------------------------------------- BONNIE YOON BISHOP, individually and on behalf of all others similarly situated, Plaintiff, v. VENATOR MATERIALS PLC; SIMON TURNER; KURT D. OGDEN; STEPHEN IBBOTSON; RUSS R. STOLLE; PETER R. HUNTSMAN; SIR ROBERT J. MARGETTS; DOUGLAS D. ANDERSON; DANIELE FERRARI; and KATHY D. PATRICK, Defendants, Case No. 1:19-cv-08625 (S.D.N.Y., Sept. 17, 2019) is a class action brought on behalf of all persons or entities that purchased Venator securities between August 2, 2017 and October 29, 2018, inclusive, purchased Venator shares in or traceable to the Company's initial public offering of ordinary shares conducted on or around August 3, 2017; purchased Venator shares in or traceable to the Company's secondary public offering of ordinary shares conducted on or around December 4, 2017. The Plaintiff seeks to pursue remedies under the Securities Act. According to the complaint, on August 3, 2017, Venator conducted the IPO, through which more than 26 million ordinary shares of Venator were sold at $20 per share, with its former parent, Huntsman Corporation, reaping over $522 million in gross proceeds. Four months after the IPO, on or around December 4, 2017, Venator conducted the SPO, through which an additional 23.7 million ordinary shares of Venator were sold at $22.50 per share, resulting in over $533 million in gross proceeds to Huntsman. In the Offering Materials for both the IPO and the SPO, Defendants misrepresented the true extent of the fire damage to Venator's Pori facility, the cost to rehabilitate the facility, and the impact on Venator's business and operations. Throughout the Class Period, the Company repeatedly misrepresented the true extent of the damage at the Pori facility and made reassuring statements to investors regarding the Company's business operations, financial prospects, and the restoration of its Titanium Dioxide production capacity. As a result of these misrepresentations, Venator shares traded at artificially inflated prices throughout the Class Period. The truth began to emerge on July 31, 2018, when Venator revealed that the fire damage at the Pori facility was far more extensive than Defendants had previously represented to investors. Specifically, Venator announced that the cost to repair the facility had climbed to more than $375 million above the insurance policy limits, more than double the amount disclosed to investors just two months after the IPO. On this news, the price of Venator shares declined from $15.35 per share to $14.62 per share, or roughly 4.76%, on July 31, 2018. On October 30, 2018, Venator announced that in addition to the over $500 million in costs and lost business associated with the Pori fire incurred to date -- which had been covered by Venator's insurance policy -- the Company incurred an additional restructuring expense of approximately $415 million and would incur additional "charges of $220 million through the end of 2024" related to the Pori site. As a result of these disclosures, the Company's share price declined from $8.00 per share to $6.47 per share, or more than 19%, on unusually high trading volume on October 30, 2018. Ultimately, by October 30, 2018, the price of Venator shares had fallen nearly 68% from the price at which Venator shares were sold to investors in the IPO and over 71% from the price at which Venator shares were sold to investors in the SPO. Venator Materials PLC operates as a manufacturer and marketer of chemical products. The Company produces a broad range of pigments and additives. Venator Materials offers titanium dioxide, color pigments, functional additives, and timer and water treatment products worldwide. [BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood II 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 VEREIT INC: Final Settlement Approval Hearing Set for January 21 ---------------------------------------------------------------- Vereit, Inc. said in its Form 8-K filing with the U.S. Securities and Exchange Commission filed on October 3, 2019, that the court in the class action suit entitled, In re American Realty Capital Properties, Inc. Litigation, No. 1:15-mc-00040 (AKH), has scheduled a hearing for January 21, 2020, to consider final approval of settlement. On September 30, 2019, VEREIT, Inc. ("VEREIT" or the "Company") and VEREIT Operating Partnership, L.P. (the "Operating Partnership"), in their capacity as defendants, entered into a Stipulation of Settlement (the "Class Action Stipulation") in connection with In re American Realty Capital Properties, Inc. Litigation, No. 1:15-mc-00040 (AKH) (the "Class Action"), consistent with the Memorandum of Understanding providing for settlement of the Class Action, as previously disclosed in VEREIT's and the Operating Partnership's joint Current Report on Form 8-K, filed with the U.S. Securities and Exchange Commission (the "SEC") on September 9, 2019 (the "Prior 8-K"). The Class Action Stipulation and the settlement contemplated therein (the "Class Action Settlement") are subject to court approval and are conditioned on approval of the Derivative Settlement in connection with Witchko v. Schorsch, et al., No. 1:15-cv-06043-AKH (the "Derivative Action"). Pursuant to the proposed Class Action Settlement, and consistent with the related disclosure in the Prior 8-K, certain defendants agreed to pay in the aggregate $1.025 billion, comprised of contributions from the Company's former external manager and its principals (together the "Former Manager") totaling $225.0 million, $12.5 million from the Company's former chief financial officer (the "Former CFO"), $49.0 million from the Company's former auditor, and the balance of $738.5 million from the Company. The contribution from the Company's Former Manager is expected to be satisfied almost entirely by limited partner units of the Operating Partnership ("OP Units") held by the Former Manager and the remainder in cash. The contribution from the Former CFO is expected to be satisfied by a combination of OP Units held by the Former CFO, amounts due related to the dividends on such OP Units previously withheld from distribution and the remainder in cash. The Company will contribute cash for such OP Units and dividends used by the Former Manager and Former CFO to fund their contributions. The contributions from the Company's Former Manager are inclusive of the value of substantially all of the OP Units and dividends surrendered to the Company in July 2019 as a result of a settlement by the Former Manager and certain of its principals with the SEC, totaling approximately $32.0 million, which was recorded in the Company's quarterly report on Form 10-Q for the quarter ended June 30, 2019, and for which cash will be contributed by the Company. In addition, the Class Action Stipulation does not contain any admission of liability, wrongdoing or responsibility by any of the parties and provides that upon final approval of the Class Action Settlement, the Class Action will be dismissed with prejudice, with mutual releases by all parties. On September 27, 2019, VEREIT and the Operating Partnership entered into a Stipulation and Agreement of Settlement (the "Derivative Stipulation") in connection with Witchko v. Schorsch, et al., No. 1:15-cv-06043-AKH (the "Derivative Action"), consistent with the Memorandum of Understanding providing for settlement of the Derivative Action (the "Derivative Settlement"), as previously disclosed in the Prior 8-K. The Derivative Settlement will resolve the allegations brought by the derivative plaintiffs. The Derivative Settlement is subject to court approval and is conditioned on approval of the Class Action Settlement. During a hearing on October 3, 2019, the court gave preliminary approval to both the Class Action Settlement and the Derivative Settlement. Both settlements remain subject to final approval by the court. The court scheduled a hearing on January 21, 2020, to consider final approval of both settlements. Vereit, Inc. is a full-service real estate operating company which owns and manages one of the largest portfolios of single-tenant commercial properties in the U.S. The company is based in Phoenix, Arizona. VERMONT: Russell Seeks to Certify Suit over Muslim Inmates' Diet ---------------------------------------------------------------- In the class action lawsuit styled as JUSTIN RUSSELL, the Plaintiff, v. ANDREW PALLITO, CYNTHIA MASON, RICHARD BILODEAU, LISA MENARD, ROBERT ARNELL, and MICHAEL TOUCHETTE, the Defendants, Case No. 5:15-cv-00126-gwc-jmc (D. Vt.), the Plaintiff asks the Court on Oct. 6, 2019, to grant his Renewed Motion for Class Certification. Russell seeks to certify a class consisting of: "Muslim prisoners now or formerly in the custody of the Vermont Department of Corrections who maintain that the Halal dietary offering provided by the Department since late 2014 violates their right to the free exercise of religion, and who seek a return to the Halal dietary offering made available to Muslim prisoners in the Department's custody prior to that time. In support of the Motion, Plaintiff submits the following Memorandum of Law." The Plaintiff has reframed his request for injunctive relief, seeking an order directing Commissioner Touchette to "reinstate the religious dietary offering that was made available to Muslim inmates in the Department's custody immediately prior to September, 2014."[CC] Attorneys for the Plaintiff are: David Bond, Esq. STROUSE & BOND, PLLC 2 Church St., Ste 3A Burlington, VT 05401 Telephone: 802 540-0434 E-mail: david@strouse-bond.com VISA INC: ATM Operator Plaintiffs Move for Class Certification -------------------------------------------------------------- The ATM Operator Plaintiffs in the lawsuit titled NATIONAL ATM COUNCIL, INC., et al. v. VISA INC., et al., Case No. 1:11-cv-01803-RJL (D.D.C.), ask the Court to: (1) certify a class defined as: All ATM Operators that originated an Authorized Surcharged ATM Cash Disbursement at a Qualified ATM at any time between October 1, 2007 and the present (the "Class Period"); (2) appoint them as class representatives; and (3) appoint Jonathan L. Rubin, Esq., and Daniel J. Mogin, Esq., of the firm of MoginRubin LLP as Co-Lead Class Counsel. The ATM Operator Plaintiffs are Co-Lead Plaintiffs ATMs of the South, Inc., Business Resource Group, Inc., Just ATMs USA, Inc., Wash Water Solutions, Inc., ATM Bankcard Services, Inc., Selman Telecommunications Investment Group, LLC, Scot Gardner d/b/a SJI, Turnkey ATM Solutions, LLC, Trinity Holdings Ltd., Inc., T&T Communications, Inc. and Randal N. Bro d/b/a T & B Investments. Specifically excluded from the Class are: i. all banks, credit unions, and other financial institutions that deploy or operate ATMs, including all chartered state or federal banks or credit unions, issuers of payment cards, or members of either the Mastercard Defendants or the Visa Defendants; ii. the Visa Defendants and Mastercard Defendants; iii. officers, directors or employees of any Visa Defendant or Mastercard Defendant; iv. any entity in which any Visa Defendant or Mastercard Defendant has a controlling interest; v. any affiliate, legal representative, successor-in-interest or assignee of any Visa Defendant or Mastercard Defendant; vi. any federal, state, or local governmental entity; vii. any judicial officer presiding over this action and the members of their immediate family and judicial staff; and viii. any juror assigned to this action.[CC] The ATM Operator Plaintiffs are represented by: Jonathan L. Rubin, Esq. MOGINRUBIN LLP 1615 M Street, NW, Third Floor Washington, D.C. 20036 Telephone: (202) 630-0616 Facsimile: (877) 247-8586 E-mail: jrubin@moginrubin.com - and - Daniel J. Mogin, Esq. Jennifer M. Oliver, Esq. MOGINRUBIN LLP 600 West Broadway, Suite 3300 San Diego, CA 92101 Telephone: (619) 687-6611 Facsimile: (619) 687-6610 E-mail: dmogin@moginrubin.com joliver@moginrubin.com VITAL RECOVERY: Ingraham Seeks OT Pay for Collections Specialists ----------------------------------------------------------------- CAMILLE INGRAHAM individually and on behalf of all similarly situated individuals, he Plaintiffs, vs. VITAL RECOVERY SERVICES, LLC and VITAL SOLUTIONS, INC., the Defendants, Case No. 1:19-cv-04159-MLB (N.D. Ga., Sept. 16, 2019), seeks to recover damages for Defendants' willful violations of the Fair Labor Standards Act, and alleged contractual obligations (or unjust enrichment if no contract is found). Ingraham was jointly employed by Defendants as an hourly Collections Specialist from approximately November 2018 until approximately April 2019. The Plaintiff, and others similarly situated, were regularly scheduled to work 40 hours per workweek and often worked in excess of 40 hours per workweek. In fact, the Plaintiff was regularly scheduled to work Monday through Friday for at least 8 hours per day, and Plaintiff would occasionally work Saturdays. Regardless of the total number of hours Plaintiff was scheduled to work, Defendants regularly required Plaintiff to work a substantial amount of time off-the-clock as part of her job as a Collection Specialist in the call center and Plaintiff was never compensated for this time worked off-the-clock, the lawsuit says. The Plaintiff, and those similarly situated, are current and former hourly Collections Specialists or other job titles performing the same or similar job duties who were employed by Defendants to perform work in Defendants' call centers in Georgia. Vital Solutions "works nationwide in all time zones, and provides customized outsourcing solutions for various industries, with specialized programs in the Automotive Finance, Credit Card and Utilities industries". Vital Recovery is a financial services company.[BN] Counsel for the Plaintiffs are: Cale Conley, Esq. CONLEY GRIGGS PARTIN, LLP 4200 Northside Parkway NW Building One, Suite 300 Atlanta, GA 30327 Telephone: (404) 809-2580 Facsimile: (404) 467-1166 E-mail: cale@conleygriggs.com - and - Molly E. Nephew, Esq. JOHNSONBECKER, PLLC 444 Cedar Street, Suite 1800 St. Paul, MN 55101 Telephone: (612) 436-1800 Facsimile: (612) 436-1800 E-mail: mnephew@johnsonbecker.com VITALE'S ITALIAN: Torres Moves for Class Certification Under FLSA ----------------------------------------------------------------- In the lawsuit styled EMILIO TORRES, an individual and on behalf of all similarly situated v. VITALE'S ITALIAN RESTAURANT, INC., a Michigan Corporation, d/b/a VITALE'S GRAND RAPIDS, SALVATORE VITALE, an individual, and BELINDA PIERSON, an individual, Case No. 1:18-cv-00547-RSK (W.D. Mich.), the Plaintiff asks the Court to grant conditional class certification pursuant to Section 216(b) of the Fair Labor Standards Act.[CC] The Plaintiff is represented by: Robert Anthony Alvarez, Esq. Agustin Henriquez, Esq. AVANTI LAW GROUP, PLLC 600 28th St. SW Wyoming, MI 49509 Telephone: (616) 257-6807 E-mail: ralvarez@avantilaw.com ahenriquez@avantilaw.com The Defendants are represented by: Ian A. Northon, Esq. Hal G. Ostrow, Esq. G. Will Furtado, Esq. Patrick E. Sweeney, Esq. RHOADES MCKEE PC 55 Campau Ave. N.W., Suite 300 Grand Rapids, MI 49503 Telephone: (616) 235-3500 E-mail: ian@rhoadesmckee.com hostrow@rhoadesmckee.com gwfurtado@rhoadesmckee.com psweeney@rhoadesmckee.com VOLUME SERVICES: Seeks Prelim. Approval of $750K Raquedan Suit Deal ------------------------------------------------------------------- In the lawsuit styled MONIQUE RAQUEDAN, et al. v. VOLUME SERVICES, INC., et al., Case No. 5:18-cv-01139-LHK (N.D. Cal.), Plaintiffs Monique Raquedan and Ronald Martinez and Defendants Volume Services, Inc., and Centerplate of Delaware, Inc., jointly move the Court to: (1) conditionally certify a settlement class; (2) preliminarily approve the parties' proposed class action Fourth Amended Settlement Agreement (the "Amended Settlement"); (3) appoint Plaintiffs Monique Raquedan and Ronald Martinez as the Class Representatives, their counsel as class counsel, and Simpluris, Inc., as the settlement administrator; (4) approve the forms of notice to the class of the settlement and Election Not to Participate in the Amended Settlement; and (5) schedule a hearing on the final approval of the Amended Settlement for April 30, 2020, or as soon thereafter as the Court is available. The Joint Motion seeks preliminary approval of the parties Fourth Amended Settlement Agreement of this Fair Credit Reporting Act ("FCRA") and related state law class action between the Plaintiffs and an estimated 11,740 Class Members, and the Defendants. The Settlement provides for an "all-in" non-reversionary settlement of $750,000. Class members will not have to make claims. Instead, a check will be mailed directly to them. For any uncashed checks, the money will be sent to the State of California's Unclaimed Property Fund to be held for the Class Member. No money will revert to Centerplate. In their complaint, the Plaintiffs allege that they and the Class Members were subject to a background check, including a consumer report, in connection with their application for a job, promotion or job change with Centerplate that was conducted in violation of applicable law. Centerplate denies the Plaintiffs' allegations in their entirety, denies any liability, and further denies that, for any purpose other than settling, the action is appropriate for class treatment. The class to be conditionally certified is defined as: All employees and applicants in the United States who applied for a job, promotion or job change with Centerplate for which a background check, including a consumer report, was conducted at any time from February 22, 2011, to the earlier of (i) the date that the District Court grants preliminary approval of the Settlement, or (ii) March 31, 2019, excluding those individuals who already have resolved all the claims asserted in the Action, whether by settlement or adjudication, including, but not limited to, the settlement in Phlisida Gibbs v. Centerplate, Inc., et al., U.S.D.C., M.D. Fla., No. 8-17-cv-2187-EAK-JSS. Centerplate will pay a Maximum Settlement Amount (the "MSA") of $750,000. The MSA covers (1) class representative payments of $5,000 to the Plaintiffs ($2,500 each), in compensation for having initiated and prosecuted the action and undertaken the risk of payment of costs in the event this matter had not been successfully concluded; (2) Settlement Shares paid to Class Members; (3) the Class Counsel Fees and Expenses Payment of not more than $222,500 (25% of the MSA), plus costs not to exceed $35,000, to compensate plaintiffs' counsel for all work performed thus far and all work remaining to be performed in documenting and administrating the Amended Settlement and securing Court approval; (4) the fees and expenses of the settlement administrator, not to exceed $53,610; and (6) any other fees or expenses (other than Class Counsel Fees and Expenses Payment) incurred in implementing the terms and conditions of the settlement agreement and securing the judgment pursuant to that agreement. After all court-approved deductions from the MSA, it is estimated that a Net Settlement Amount of $468,890 will be available to pay the Settlement Shares of all Class Members. If the Court awards all the requested amounts, each Class Member's Settlement Share is estimated to be $39.86. The Parties propose this schedule for approval of the Amended Settlement, which assumes that preliminary approval is granted at the hearing on the motion: -- December 20, 2019 -- Centerplate to provide to Settlement Administrator database containing Class Member information necessary to calculate Settlement Shares (30 days after Preliminary Approval); -- January 14, 2020 -- Settlement Administrator to mail Class Notice Packets to all Class Members (15 days after receiving Class Member information from Centerplate); -- February 13, 2020 -- Date by which plaintiffs and class counsel will submit their motion for Class Representative Payments and Class Counsel Fees and Expenses Payment (30 days after Class Notice Packets are mailed to Class Members); -- February 28, 2020 -- Last day for Class Members to file with the Court and serve upon counsel for the parties objections to Settlement (45 days after Settlement Administrator mails Class Notice Packets to all Class Members) Last day for Class Members to mail Elections Not to Participate in Settlement (45 days after Settlement Administrator mails Class Notice Packets to all Class Members); -- March 13, 2020 -- Date by which Settlement Administrator will provide Parties with a list of all Class Members who submitted timely and valid Elections Not to Participate Forms; -- March 26, 2020 -- Date by which parties will submit their joint motion for final approval of settlement; and -- April 30, 2020 -- Hearing on joint motion for final approval of settlement. The Court will commence a hearing on November 21, 2019, at 1:30 p.m., to consider the Motion.[CC] The Plaintiffs are represented by: Shaun Setareh, Esq. Thomas Segal, Esq. Farrah Grant, Esq. SETAREH LAW GROUP 315 S. Beverly Drive, Suite 315 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com thomas@setarehlaw.com farrah@setarehlaw.com Defendants Volume Services, Inc., and Centerplate of Delaware, Inc. are represented by: Jeffrey D. Wohl, Esq. Zina Deldar, Esq. Jana B. Fitzgerald, Esq. PAUL HASTINGS LLP 101 California Street, 48th Floor San Francisco, CA 94111 Telephone: (415) 856-7000 Facsimile: (415) 856-7100 E-mail: jeffwohl@paulhastings.com zinadeldar@paulhastings.com janafitzgerald@paulhastings.com WARNER MUSIC: Seeks 9th Circuit Review of Williams Suit Ruling -------------------------------------------------------------- Defendants Warner Bros. Records, Inc. and Warner Music Group Corporation filed an appeal from a Court ruling in the lawsuit styled Leonard Williams, et al. v. Warner Music Group Corporation, et al., Case No. 2:18-cv-09691-RGK-PJW, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as Leonard Williams, et al. v. Warner Music Group Corporation, et al., Case No. 19-56121, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the Defendants filed an appeal from a ruling in the lawsuit. That appellate case is titled as Leonard Williams, et al. v. Warner Music Group Corporation, et al., Case No. 19-80052.[BN] Plaintiffs-Appellees LEONARD WILLIAMS, on behalf of himself and all others similarly situated, and THE LENNY WILLIAMS PRODUCTION COMPANY, a California corporation, are represented by: Douglas L. Johnson, Esq. Neville Johnson, Esq. JOHNSON & JOHNSON LLP 439 N. Canon Drive Beverly Hills, CA 90210 Telephone: (310) 975-1080 Facsimile: (310) 975-1095 E-mail: djohnson@jjllplaw.com njohnson@jjllplaw.com - and - Paul R. Kiesel, Esq. Jeffrey Alan Koncius, Esq. Nicole Ramirez, Esq. KIESEL LAW LLP 8648 Wilshire Boulevard Beverly Hills, CA 90211 Telephone: (310) 854-4444 Facsimile: (310) 854-0812 E-mail: kiesel@kiesel.law koncius@kiesel.law ramirez@kiesel.law - and - Clifford Harris Pearson, Esq. Bobby Pouya, Esq. Daniel Leon Warshaw, Esq. PEARSON SIMON WARSHAW & PENNEY, LLP 15165 Ventura Boulevard Sherman Oaks, CA 91403 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 E-mail: cpearson@pswlaw.com bpouya@pswlaw.com dwarshaw@pswlaw.com Defendants-Appellants WARNER MUSIC GROUP CORPORATION, a Delaware Corporation, and WARNER BROS. RECORDS, INC., a Delaware Corporation, are represented by: Sean Ashley Commons, Esq. Rollin Ransom, Esq. SIDLEY AUSTIN LLP 555 West 5th Street Los Angeles, CA 90013 Telephone: (213) 896-6010 Facsimile: (213) 896-6600 E-mail: scommons@sidley.com rransom@sidley.com WM BOLTHOUSE: Felix Ordered to File Settlement Motion by Nov. 8 --------------------------------------------------------------- In the case, ERIC FELIX, an individual, on behalf of himself and others similarly situated, Plaintiff, v. WM. BOLTHOUSE FARMS, INC., Defendant, Case No. 1:19-cv-312-AWI JLT (E.D. Cal.), Magistrate Judge Jennifer L. Thurston of the U.S. District Court for the Eastern District of California has (i) ordered the Plaintiff to file a motion for preliminary approval of class settlement no later than Nov. 8, 2019; and (ii) vacated all other pending deadlines, conferences, hearings, and trial date. On Sept. 10, 2019, the parties filed a "Joint Notice of Settlement," informing the Court that they were in the process of negotiating a long-form settlement agreement, and that the Plaintiff anticipates filing a motion for preliminary approval of class action settlement within 30 to 60 days. Based upon the filing of the Joint Notice of Settlement, Magistrate Judge Thurston ordered that the Plaintiff to file a motion for preliminary approval of class settlement that substantively complies with the following guidelines no later than Nov. 8, 2019: a. Litigation and Settlement Class Definitions: The parties seeking preliminary approval should address whether the Court certified a litigation class. If a litigation class was certified, the parties should address identify any differences between the class defined by the Court and the proposed settlement class. If a class was not certified, they must address whether the proposed settlement class satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and must demonstrate the proposed class is maintainable under one or more of the three alternatives set forth in Rule 23(b). b. Settlement Administration: The parties should identify the proposed settlement administrator and the anticipated duties of the settlement administrator. They should also identify the anticipated administration cost, the reasonableness of these costs, and who will be responsible if the claims administration costs exceed the amount preliminarily approved. Prior to the hearing for final approval, the settlement administrator will file a declaration of due diligence, setting forth its compliance with its obligations under the settlement agreement, and addressing the costs incurred. c. Proposed Class Notice: The parties should ensure the proposed class notice is easily understandable, considering any concerns about the education level or language needs of the class members. If the parties intend to issue any language translation of the Notice, they are reminded that the Court requires a declaration that the Notice was translated by a certified court interpreter, asserting the translation is an accurate translation of the Court-approved English version of the Notice. d. Attorney Fees and Costs: Although the Court will not approve a request for attorneys' fees until the final approval hearing, the class counsel should include information about the fees they intend to request -- and the lodestar calculation -- through preparation of the motion for preliminary approval. In addition, the counsel should state whether they seek payment of costs and expenses, including expert fees, and the total amount. e. Class Representative Incentive Awards: The parties seeking incentive awards should include evidence supporting the requested awards in the motion for preliminary approval. The class counsel should also compare the requested award to the average anticipated by the class members. g. Final Approval: The motion for final approval should include information about the class members' responses, the requests for approval of attorneys' fees, and at least one comparable class action settlement. The Magistrate vacated all other pending deadlines, conferences, hearings, and trial dates. The Plaintiff is advised that failure to comply with the Order may result in the Court imposing sanctions, including the dismissal of the action. A full-text copy of the Court's Sept. 13, 2019 Order is available at https://is.gd/kbdpet from Leagle.com. Eric Felix, an individual, on behalf of himself and others similarly situated, Plaintiff, represented by Emil Davtyan -- emil@davtyanlaw.com -- Davtyan Professional Law Corporation, Eric Bryce Kingsley -- eric@kingsleykingsley.com -- Kingsley & Kingsley APC & Kelsey Szamet -- kelsey@kingsleykingsley.com -- Kingsley & Kingsley, APC. WM. Bolthouse Farms, Inc., Defendant, represented by Ashley Adrianne Baltazar -- ashley.baltazar@morganlewis.com -- Morgan, Lewis & Bockius LLP. WONDERFUL COMPANY: Failed to Pay Wages, Zeferino, et al Say ----------------------------------------------------------- A class action lawsuit against The Wonderful Company remains pending in state court. The case is captioned, PERFECTO ZEFERINO; LIBRADO MARTINEZ RAMIREZ; ELISEO GASPAR; OLEGARIO HERNANDEZ; GENARO REYES, on behalf of themselves and others similarly situated, the Plaintiff, vs. THE WONDERFUL COMPANY, LLC; WONDERFUL CITRUS PACKING LLC and DOES 1-25, the Defendants, Case No. 19STCV27582 (Cal. Super., Aug. 5, 2019), and alleges that Defendants failed to pay wages, failed to provide/compensate for mandated rest periods and meal periods, and failed to reimburse expenses for tools and equipment in violation of the California Labor Code. According to the complaint, the Defendants have required workers to perform unpaid, off-the-clock work in violation of state wage and hour laws. The Plaintiffs and Members of the Proposed Class are seasonal agricultural workers who have worked in Defendants' fields. The Defendants are engaged in the business of cultivating, harvesting and packing fruit and tree nuts, including mandarins and other citrus, and marketing the mandarins under the "Halos" brand.[BN] Attorneys for the Plaintiffs and all aggrieved employees are: Eric B. Kingsley, Esq. Liane Katzensteinly, Esq. Lyubov Lerner, Esq. KINGSLEY & KINGSLEY, APC 16133 Ventura Blvd., Suite 1200 Encino, CA 91436 Telephone: (818) 990-8300 Facsimile: (818) 990-2903 E-mail: eric@kingsleykingsley.com liane@kingsleykingsley. com luba@kingsleykingsley.com - and - Mario Martinez, Esq. Edgar L. Aguilasocho, Esq. MARTINEZ AGUILASOCHO & LYNCH, APLC P.O. BOX 1998 Bakersfield, CA 93303 Telephone: (661) 859-1174 Facsimile: (661) 840-6154 E-mail: mmartinez@farmworkerlaw.com eaguilasocho@farmworkerlaw.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 ***