/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/191127.mbx C L A S S A C T I O N R E P O R T E R Wednesday, November 27, 2019, Vol. 21, No. 237 Headlines 23ANDME INC: Fischler Asserts Breach of Disabilities Act A10 NETWORKS: Appeal from Order Dismissing Shah Suit Dropped AIRBNB: Reaches Class Action Settlement with Quebec Users ALCARIS THERAPEUTICS: Fulcher & Rosi Securities Suits Consolidated ALLIANCEMED LLC: Court Certifies Class in Retina Assoc. Case ANCESTRY.COM OPERATIONS: Fischler Asserts Breach of ADA ARC MANAGEMENT: Werzberger Suit Asserts Breach under FDCPA ASHISH HOLDINGS: Reyes Seeks to Recover Overtime Wages Under FLSA AUTOVEST LLC: Court Dismisses Frank FDCPA Suit B RILEY FINANCIAL: Continues to Defend Freedman Class Suit B RILEY FINANCIAL: Mediation in Suit v. MLV Fails CBL CORP: Faces Second Shareholder Class Action CENTURYLINK INC: Masales Sues Over Failure to Protect PII CHARLES RIVER: Fails to Pay Overtime Wage Under FLSA, Matson Says CHESAPEAKE EXPLORATION: Wins Summary Judgment in Royalties Suit CHRISTMAS TREE SHOPS: Delacruz Files ADA Suit in New York CITIGROUP INC: Bid to Dismiss Mexican Govt. Bonds Suit Granted CITIGROUP INC: Settlement in Contant Litig. Wins Initial Approval COLLECTION BUREAU: Wilson Files FDCPA Suit in NY under FDCPA CONDE NAST: Granillo Suit Moved to Southern District of California CORDUA RESTAURANTS: Faegre Baker Attorney Discusses Court Ruling CURALEAF HOLDINGS: Lead Counsel Numbers Narrowed to Two DESTINY MATERNITY: Wu Files Suit in New York under ADA DOLLAR TREE: Can Compel Arbitration in Snipes Discrimination Suit DYNASTY GUNITE: Fails to Pay Proper Overtime Wages, Botelho Says FEDERAL NATIONAL: E.D. Tenn Accepts Bank. Ct. Ruling in Cawood Case FITBIT: Dec. 22 Deadline Set to Request for Settlement Payout FLOOR & DECOR: Securities Litigation Underway in Georgia FMT SJ LLC: Aguayo Files Labor Class Action in Cal. Sup. Ct. FORESTERS FINANCIAL: Connor Sues Over Nuisance Telemarketing GOLDMAN SACHS: Faces Curtis Suit Alleging Violation of TCPA GOLDMAN SACHS: Settlement Reached in GSE Bonds Antitrust Suit GOYENETCHE DAIRY: Tiscareno Files Suit in California GRAND CENTRAL: Rojas-Maravilla Seeks to Recover Overtime Wages GREGORY W. GRAY: Investors Lose Class Certification Bid HARD ROCK: Saenger Theatre Employee Files Class Action HARMON STORES: Delacruz Alleges Violation under Disabilities Act HAYCO CORP: Violates Overtime Provisions of FLSA, Huitzil Claims HOME POINT: $$2.2MM Deal in Noroma FLSA Suit Gets Final Approval HSBC BANK: Ahmed Moves for Final Approval of Class Settlement HUTCHINSON TECHNOLOGY: Faces Rinehart Antitrust Suit in Calif. INTERSTATE COLLECTIONS: Abusively Collect Debts, Roberts Claims J. JILL INC: Wu Alleges Violation under Disabilities Act JABIL INC: Walker Case Removed to Northern District of California JETSMARTER INC: Court Orders Arbitration in Galvez Case JOHNNY ROCKETS: Wu Alleges Violation under Disabilities Act JOY ORGANICS: Olsen Suit Alleges ADA Violation KELLY M DAVIS: Jaffer Sues Over Illegal Debt Collection Practices LABORATORY CORP: Covance Continues to Defend Mitchell Suit LE LABO HOLDINGS: Wu Asserts Breach of Disabilities Act LEHMAN PROPERTY: Former Clients File Class Action LIFTED PERFORMANCE: Olsen Files Class Suit under ADA in New York LOUD BUDDHA: Fails to Properly Pay Cannabis Workers, Denning Says LYFT INC: Gonzalez Sues Over Unpaid Minimum and Overtime Wages MAC COSMETICS: Wu Asserts Breach of Disabilities Act MARK HOTEL OWNERS: Nisbett Asserts Breach of Disabilities Act MARMARA MANHATTAN: Nisbett Alleges Violation under ADA in NY MCCARTHY, BURGESS: Lombardi Files FDCPA Suit in E.D. Pa. MEDICAL MANAGEMENT: Faces Mele Suit Alleging Violation of TCPA MERITAGE HOMES: Faces Thomas Class Suit Alleging Mortgage Fraud METAL TECHNOLOGIES: Attys' Fees & Costs Awards in Weil Suit Revised MIDLAND CREDIT: Henderson Files FDCPA Suit in Pa. MIDWEST PUBLISHING: Taylor Sues Over Unsolicited Telephone Calls MORAN FOODS: Sinclair Suit Challenges Illegal Time-Shaving Policy MOVIE GRILL CONCEPTS: Burns Files Suit in Ca. Super. Ct. NATIONAL COLLEGIATE: Labiak Files PI Suit in S.D. Indiana NATIONAL COLLEGIATE: Williams Files PI Suit in S.D. Indiana OASIS POWER: February 11, 2020 Settlement Fairness Hearing Set OLIN CORP: Suits Against Unit over Sale of Caustic Soda Underway ORIGINS NATURAL: Camacho Files ADA Suit in E.D. New York P.C. RICHARD & SON: Camacho Files ADA Suit in E.D. New York PANDORA: Lower Court Asked to Reconsider Class Action Ruling PAPA JOHN'S: Court Sends No-Poach Class Action to Arbitration PARETEUM CORP: Rosen Law Reminds of Dec. 23 Lead Plaintiff Deadline PAYMENTCLUB INC: Bid to Dismiss Amended Fabricant TCPA Suit Denied PHH MORTGAGE: Cabral Suit Removed to Massachusetts District Court PORTLAND GENERAL: Oregon App. Affirms Dismissal of Dreyer Suit PROSPECT CHARTERCARE: $4.5MM Settlement Gets Final Ct. Nod PROSPECTS DM: Faces Gunn Suit Over Autodialed Telemarketing Calls PURDUE PHARMA: Stock Suit Moved From N.D. Okla. to N.D. Ohio RISE CONSTRUCTION: Sanchez Seeks OT Pay for Construction Workers ROCKWELL MEDICAL: Feb. 26 Settlement Fairness Hearing Set ROTHMAN EVANS: Gonzalez Files Suit under FDCPA in New York S&S SPRAYERS: Hernandez Files Class Suit in California SAFEWAY: Faces Class Action Over 1% Surcharge SEMPRA ENERGY: Ninth Circuit Appeals Filed in Plumley Class Suit SETERUS INC: Court Narrows Claims in Heinitz Class Action SHIRE US: Review of Class Cert. Bid Order in Antitrust Suit Denied SPECTRA ENERGY: Morris Appeals Dismissal of Suit to Del. Sup. Ct. STANDARD FIRE: Court Nixes Class Allegations in Young Case STATE FARM: Bid to Dismiss Fraud/Unjust Enrichment Charges Denied STUDIO 34: Cardoso Seeks to Recover Minimum and Overtime Wages TEE JAYE'S COUNTRY: Faces Cockrell Suit Alleging FLSA Violations TOTALMED STAFFING: Blumenthal Nordrehaug Files Class Action TOYOTA MOTOR: Faces Class Action Over Repossessed Cars TTC LLC: Millward TCPA Suit Seeks to Stop Unsolicited Marketing UBER TECHNOLOGIES: Seeks Dismissal of Drivers' Class Action US BANCORP: Bruna Sues Over Illegal Telemarketing Text Messages VENATOR: Bernstein Litowitz Appointed as Class Action Lead Counsel WAL-MART INC: Settles Pregnancy Bias Class Action for $14 Million WALT DISNEY: Responds to Gender Discrimination Class Action WATERSTONE FINANCIAL: Continues to Defend Herrington Class Suit WELLS FARGO: Liguori Files Suit in S.D. New York WORLD FINANCIAL: Transfer of Yeomans to Ga. Northern Dist. Denied XPO LOGISTICS: Settles Wage Class Action for $16.5 Million ZAPPOS: Nov. 29 Deadline Set to Object to Settlement Terms ********* 23ANDME INC: Fischler Asserts Breach of Disabilities Act -------------------------------------------------------- 23ANDME, Inc. 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. 23ANDME, Inc., Defendant, Case No. 1:19-cv-06544 (E.D. N.Y., Nov. 19, 2019). 23andMe is a privately held personal genomics and biotechnology company based in Sunnyvale, California.[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 A10 NETWORKS: Appeal from Order Dismissing Shah Suit Dropped ------------------------------------------------------------ A10 Networks, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 1, 2019, for the quarterly period ended September 30, 2019, that the United States Court of Appeals for the Ninth Circuit has granted the stipulated motion to dismiss the appeal from a ruling in the case, Shah v. A10 Networks, Inc. et al., 3:18-cv-01772-VC. On March 22, 2018, the Company, its Chief Executive Officer, its Chief Financial Officer, and certain former officers, were named as defendants in a putative class action lawsuit filed in the United States District Court for the Northern District of California, captioned Shah v. A10 Networks, Inc. et al., 3:18-cv-01772-VC. On August 31, 2018, the court appointed a lead plaintiff. On October 5, 2018, the lead plaintiff filed an amended complaint. The amended complaint named the same defendants as the initial complaint, in addition to one of the Company's former executive vice presidents. The amended complaint asserted claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The Company and individual defendants filed motions to dismiss the amended complaint. On February 21, 2019, the court granted the motions to dismiss with leave to amend within 21 days. The lead plaintiff did not file an amended complaint by the Court-ordered deadline. Instead, on March 21, 2019, the lead plaintiff filed a notice of appeal in the United States Court of Appeals for the Ninth Circuit. On April 5, 2019, the clerk of court suspended briefing on the appeal and ordered that, by April 26, 2019, appellants shall either move for voluntary dismissal or show cause why the appeal should not be dismissed for lack of jurisdiction. On April 25, 2019, appellants moved to voluntarily dismiss the appeal without prejudice, and that motion was granted on May 1, 2019. The district court entered final judgment dismissing lead plaintiff's claims on May 8, 2019. The lead plaintiff subsequently filed a notice of appeal on June 6, 2019. The parties filed a stipulated motion to voluntarily dismiss the appeal on October 7, 2019, with each side to bear its own costs. The Court of Appeals granted the stipulated motion to dismiss on October 10, 2019. A10 Networks, Inc. provides software and hardware solutions in the United States, Japan, other Asia Pacific and EMEA countries, and Latin America. A10 Networks, Inc. was incorporated in 2004 and is headquartered in San Jose, California. AIRBNB: Reaches Class Action Settlement with Quebec Users --------------------------------------------------------- Elizabeth Raymer, writing for Canadian Lawyer, reports that Airbnb users in Quebec have reached a settlement with the company that will see them reap up to $45 each in Airbnb credits. In this case, Airbnb customers complained about how the company displayed pricing on its website and launched a class action suit in 2017. As part of the settlement, Airbnb has now agreed to change the way it prices its products online in Canada, so that the price shown when a customer first views a listing is the full price excluding taxes. The settlement shows the strength of Quebec's consumer protection laws, says Claude Marseille -- claude.marseille@blakes.com -- a partner at Blake, Cassels & Graydon LLP in Montreal. "The Quebec Consumer Protection Act is very progressive," says Marseille, and "Quebec legislature is very aggressive in following up on trends and amending the Act as required." Article 224 of the Consumer Protection Act prohibits so-called "drip pricing," which occurs a lot on commercial websites, he says, and refers to businesses using a lower price that the consumer will see first in order to encourage the consumer to click through and make a booking, only to be surprised by a significantly higher price at the end. That's because the initial price shown excludes not only taxes, but service charges and other fees. "That occurred a couple of years ago with airplane ticket prices, and now it's in the context of Airbnb," with the plaintiffs claiming service charges of 14 to 17 per cent of the original price were added on as the user continued to click through the pages, says Marseille. Article 224 of Quebec's Consumer Protection Act dictates that more emphasis must be placed on the total price to be paid in the advertisement than on its components, he says. The class action against Airbnb was launched only for Quebec residents because the plaintiff based his case entirely on Article 224, Marseille explains. Although there are deceptive marketing provisions outlined in the Competition Act, s. 55, and civil recourse in s. 36, Quebec legislation has a specific provision respecting "drip pricing," and so in this class action the decision may have made to have a smaller class of plaintiffs but a stronger case, he says. "Under the Quebec Consumer Protection Act, you do not have to establish, in order to claim damages, that you relied on the initial price in order to make your decision to book your room. The simple fact that Airbnb breached a statutory provision under the CPA entails a presumption of damages in Quebec. You must take for granted, as a court, that that's why the consumer made the purchase." That lowers the burden of proof on the plaintiff substantially, Marseille explains. Another significant advantage of Quebec's CPA is that an individual can claim punitive damages if the Act was breached, even if no compensatory damages have been suffered; "it's an aggressive position." In the Airbnb case, punitive damages were requested at $100 per member of the class, Marseille says. Although Airbnb has admitted no wrongdoing in the case, the outcome "achieved the purpose [in class actions] of what the Supreme Court of Canada has called behaviour modification. Aside from damages, which are not high, Airbnb modified its website . . . so that . . . you will now get in the advertisement . . . the full price you will pay, including service charges, excluding tax." In Hollick v. Toronto (City), 2001 SCC 68, a judgment written by then Chief Justice Beverley McLachlin, behaviour modification was indicated as a principle goal of class action legislation, he says. The first two goals were judicial efficiency, and access to justice. A settlement agreement is expected to be approved by Quebec's Superior Court on December 3. [GN] ALCARIS THERAPEUTICS: Fulcher & Rosi Securities Suits Consolidated ------------------------------------------------------------------ In the cases captioned LINDA ROSI, individually and on behalf of all others similarly situated, Plaintiff, v. ALCARIS THERAPEUTICS, INC., NEAL WALKER, and FRANK RUFFO, Defendants; and ROBERT FULCHER, individually and on behalf of all others similarly situated, Plaintiff, v. ALCARIS THERAPEUTICS, INC., NEAL WALKER, and FRANK RUFFO, Defendants, Case Nos. 19-CV-7118 (LTS) (JLC), 19-CV-8284 (LTS) (JLC) (S.D. N.Y.), Magistrate Judge James L. Cott of the U.S. District Court for the Southern District of New York: -- granted Fulcher and Rosi's motions for consolidation, Fulcher's motion for appointment as the Lead Plaintiff, and the motion for approval of Pomerantz LLP as the lead counsel; -- denied Rosi's motion for appointment as the Lead Plaintiff and for approval of Glancy Prongay & Murray LLP as the lead counsel; and -- consolidated Fulcher's and Rosi's actions. Plaintiffs Rosi and Fulcher filed separate securities fraud class actions earlier this year against Alcaris, its President and CEO Neal Walker, and its CFO Frank Ruffo, alleging that they violated Sections 10(b) and 20(a) of the Securities Exchange Act as well as Securities and Exchange Commission Rule 10b-5. Rosi filed suit on July 30, 2019 (Rosi v. Alcaris Therapeutics, Inc. et al., No. 19-CV-7118 (LTS) (JLC)), and Fulcher filed the second action on Sept. 5,2019 (Fulcher v. Alcaris Therapeutics, Inc. et al, No. 19-CV-8284 (LTS) (JLC)). The Plaintiffs in both cases allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended by the Private Securities Litigation Reform Act of 1995. Each action is brought on behalf of all those who purchased or otherwise acquired Alcaris stock between May 8, and June 20, 2019, inclusive, and who purportedly incurred damages in connection with such purchases or acquisitions. The Plaintiffs allege that during the Class Period, the Defendants made false and/or misleading statements and failed to disclose material adverse facts about the company's lead product ESKATA, which is a hydrogen peroxide topical solution used to treat raised seborrheic keratosis, a common non-malignant tumor. On June 20, 2019, the U.S. Food & Drug Administration stated that an advertisement for ESKATA makes false or misleading claims" regarding the product's risk and efficacy. As a result of the Defendants' wrongful acts and omissions, and the resulting decline in the market value of Alcaris's stock, the Plaintiffs claim that they and the other class members have suffered significant losses and damages. Only Rosi and Fulcher have filed motions requesting appointment as the Lead Plaintiff and approval of the lead counsel, in addition to requesting consolidation of their suits. Specifically, Fulcher moves to be appointed as the Lead Plaintiff and for approval of Pomerantz LLP as the lead counsel, while Rosi moves to be appointed as the Lead Plaintiff and for approval of Glancy Prongay & Murray LLP as the lead counsel. In response to Fulcher's motion, Rosi filed a notice of nonopposition, acknowledging that she does not possess the largest financial interest in the action. The Defendants have not taken a position on these motions. Both Fulcher and Rosi seek consolidation of Rosi v. Alcaris Therapeutics, Inc. et al., No. 19-CV-7118 (LTS) (JLC), with Fulcher v. Alcaris Therapeutics, Inc. et al, No. 19-CV-8284 (LTS) (JLC). Magistrate Judge Cott holds that consolidation is appropriate. The actions assert virtually identical claims based on virtually identical factual allegations. Both complaints allege violations of the same federal securities laws based on the same set of facts. Accordingly, the actions are consolidated for all purposes. All future filings in either case will be filed under Docket Number 19-CV-7118, as it bears the lower docket number. Turning to the appointment of the Lead Plaintiff, the Magistrate Judge finds that (i) Rosi and Fulcher have satisfied the timeliness prong of the PSLRA's requirements for appointment of the Lead Plaintiff; (ii) Fulcher satisfies the largest financial interest requirement of the PSLRA; and (iii) Fulcher has satisfied Rule 23's typicality and adequacy requirements for purposes of this stage of the litigation. And because no other Plaintiff has come forward with rebuttal evidence establishing that Fulcher will not fairly and adequately protect the interests of the class or is subject to unique defenses that render such plaintiff incapable of adequately representing the class, the Magistrate will appoint Fulcher as the Lead Plaintiff. Finally, having reviewed the Firm Resume of Pomerantz LLP, the Magistrate finds that Fulcher's chosen counsel will adequately and effectively represent the interests of the class. The attorneys at Pomerantz have extensive experience with securities class actions and have been found to be qualified to be lead or co-lead counsel by other courts. Thus, he will approve Fulcher's selection of Pomerantz as the lead counsel. For the foregoing reasons, Magistrate Judge Cott granted Fulcher and Rosi's motions for consolidation, Fulcher's motion for appointment as the Lead Plaintiff, and the motion for approval of Pomerantz LLP as the lead counsel. He denied Rosi's motion for appointment as the Lead Plaintiff and for approval of Glancy Prongay & Murray LLP as the lead counsel. All future filings will be made under Docket Number 19-CV-7118. The Clerk is directed to close Docket Numbers 8 and 12 and mark Docket No. 8 as granted, and Docket No. 12 as granted in part and denied in part. The Clerk is further directed to change the caption to reflect Fulcher as the Lead Plaintiff. Within 10 days of the Opinion and Order, the lead counsel will meet and confer with the counsel for the Defendants for the purpose of jointly submitting a proposed schedule for the filing of a consolidated amended complaint by the Lead Plaintiff, the filing of any motion to dismiss the amended complaint by the Defendants, the Lead Plaintiff's opposition to the motion to dismiss, and the Defendants' reply. A full-text copy of the Court's Nov. 6, 2019 Opinion & Order is available at https://is.gd/wdUQz6 from Leagle.com. Robert Fulcher, Individually and on behalf of all others similarly situated, Plaintiff, represented by Joseph Alexander Hood, II -- ahood@pomlaw -- Pomerantz LLP & Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. ALLIANCEMED LLC: Court Certifies Class in Retina Assoc. Case ------------------------------------------------------------ The Hon. James V. Selna grants the Motion for Class Certification in the lawsuit captioned Retina Associates Medical Group, Inc. v. Alliancemed, LLC, et al., Case No. 8:18-cv-01670-JVS-KES (C.D. Cal.). The Court certifies this class only against AllianceMed: All persons or business entities in the United States who in June 2018, as identified in Defendants' fax transmission records produced as CSV files, were successfully sent through Openfax an[] unsolicited fax advertisement by or on behalf of Defendants. Excluded from the Class are Defendants, their employees, agents, and members of the federal judiciary. The Court appoints Retina as class representative and appoints the law firm of Edwards Pottinger LLC as class counsel. Retina filed its complaint on September 14, 2018, asserting on behalf of a purported class one cause of action under the Telephone Consumer Protection Act. Retina alleges that it received an unsolicited fax advertisement from the Defendants on June 26, 2018, that lacked a proper opt-out notice. Retina also alleges that for the past four years the Defendants have systematically and pursuant to a policy and procedure arranged to fax hundreds or thousands of such unsolicited fax advertisements lacking compliant opt-out notices to recipients, such as Retina and the purported class members.[CC] ANCESTRY.COM OPERATIONS: Fischler Asserts Breach of ADA ------------------------------------------------------- Ancestry.com Operations Inc. 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. Ancestry.com Operations Inc., Defendant, Case No. 1:19-cv-06545 (E.D. N.Y., Nov. 19, 2019). Ancestry.com Operations Inc. provides online family genealogy information and resources. The Company allows website users to upload family history information to create genealogy networks. Ancestry.com serves individuals internationally.[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 ARC MANAGEMENT: Werzberger Suit Asserts Breach under FDCPA ---------------------------------------------------------- A class action lawsuit has been filed against ARC Management Group, LLC. The case is styled as Sarah Werzberger, individually and on behalf of all others similarly situated, Plaintiff v. ARC Management Group, LLC, Defendant, Case No. 7:19-cv-10701 (S.D. N.Y., Nov. 19, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. ARC Management Group, LLC is a legitimate collection agency, founded in 2006. ARC is listed as a collection agency with a headquarters in Kennesaw, GA.[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 ASHISH HOLDINGS: Reyes Seeks to Recover Overtime Wages Under FLSA ----------------------------------------------------------------- Anselma Reyes and Beatriz Gonzalez v. ASHISH HOLDINGS, LLC, dba A-ONE BONDS & MORE and dba AA FRIEND AUTO INSURANCE, ASIM DIDARALI, INDIVIDUALLY, and RUBINA DIDARALI, INDIVIDUALLY, Case No. 4:19-cv-04574 (S.D. Tex., Nov. 21, 2019), is brought as a collective action to recover unpaid overtime wages, liquidated damages, and attorneys' fees owed to the Plaintiffs and other similarly situated employees under the Fair Labor Standards Act. The Plaintiffs, who routinely worked more than 40 hours per workweek, were not paid one and one-half times their regular hourly rate for hours worked over 40 hours per workweek, says the complaint. Rather, the Plaintiffs were paid the same hourly rate for all hours worked. The Plaintiffs were employed by the Company in various locations as customer service clerks. Ashish Holdings, LLC, dba A-One Bonds & More and dba AA Friend Auto Insurance, provides automobile title bonds and various forms of insurance.[BN] The Plaintiffs are represented by: Mark Siurek, Esq. Patricia Haylon, Esq. WARREN & SIUREK, L.L.P. 3334 Richmond Ave., Suite 100 Houston, TX 77098 Phone: 713-522-0066 Fax: 713-522-9977 Email: thaylon@warrensiurek.com msiurek@warrensiurek.com AUTOVEST LLC: Court Dismisses Frank FDCPA Suit ---------------------------------------------- The United States District Court for the District of Columbia issued a Memorandum Opinion granting Defendants' Motion for Summary Judgment in the case captioned PHYLLIS FRANK, et al., Plaintiffs, v. AUTOVEST, LLC, et al., Defendants, Civil Case No. 17-2773 (RJL) (D.D. C.). Phyllis Frank brings this putative class action against Autovest, LLC (Autovest) and Michael Andrews & Associates (MAA) for actual and statutory damages under the Fair Debt Collection Practices Act (FDCPA). Frank claims that Autovest and MAA violated the FDCPA in a debt-collection action initiated by Autovest against her. LEGAL STANDARD Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Material facts are those that might affect the outcome of the suit under the governing law. A dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. The court must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in her favor, and eschew making credibility determinations or weighing the evidence. To establish a claim under the FDCPA, a private plaintiff must establish that: (1) the defendant is a debt collector (2) who took an action in connection with the collection of a debt and (3) the action violated the substantive proscriptions in those provisions. Frank alleges that defendants violated the FDCPA in the underlying Collections Action by misrepresenting that Autovest was assigned the Contract, by using a false verification and false affidavit to seek default judgment against Frank, and by attempting to collect contingency-based attorneys' fees. Defendants contend that summary judgment in their favor is warranted as to all of Frank's claims because none of the alleged misrepresentations were misleading. The Court agrees. Assignment of the Loan Frank first claims defendants misrepresented that FIFS assigned the Contract to Autovest because FIFS in fact assigned the contract to FIAR.This theory fails on the evidence alone. As the record shows, FIFS initially assigned the Contract to FIAR, and FIAR subsequently reassigned the Contract back to FIFS in May 2016. FIFS then assigned the Contract to Autovest. Frank does not, and could not, seriously dispute this chain of events. Instead, she points to the fact that FIFS securitized the loan before assigning it to Autovest. But that, of course, has nothing to do with whether Autovest owned the loan when it sought to collect Frank's outstanding debt. Nor can Frank reasonably claim she was unaware of the assignment to Autovest at the time of the Collections Action. Accordingly, Autovest's representations that it was the assignee of FIFS were not misleading, and Frank's claimed violation on that basis cannot survive summary judgment. Undaunted, Frank attempts to reframe this claim in her summary judgment papers, arguing that Autovest's representations in the underlying Collections Action were misleading because Autovest failed to report the Contract's complete chain of title. To say the least, the Court is similarly unpersuaded by Frank's revamped claim. Nowhere in her Amended Complaint did Frank suggest that Deuman's affidavit was misleading because it failed to include the complete chain of title or otherwise describe the securitization of Frank's loan. But even considering Frank's new theory at summary judgment, her claim does not survive because Deuman's affidavit is not misleading. The Dunn Verification and the Deuman Affidavit Frank next asserts that defendants' statements in two pleadings in the Collections Action give rise to FDCPA liability. Frank points to (1) the verification attached to Autovest's collections complaint against Frank and (2) the affidavit attached to Autovest's motion for default judgment. She argues that the verification and the affidavit are misleading because Dunn and Deuman claimed to be employees of Autovest, when they were in fact employees of MAA. Both of those documents, however, contain, at most, false non-material statements that are not actionable under the FDCPA. Whether Dunn and Deuman were employed by Autovest or MAA had no effect on Frank's ability to respond to or dispute the debt sought in the Collections Action. Dunn and Deuman were seeking to collect the unpaid balance of Frank's loan on behalf of Autovest. Even assuming representations about Dunn's and Deuman's employer were false, they were the type of mere technical falsehoods that mislead no one and do not give rise to FDCPA liability. Frank's arguments to the contrary are, not surprisingly, unconvincing. She first contends that Dunn and Deuman misrepresented the identity of the debt collector by stating they were employed by Autovest. But Frank conflates two separate issues. Defendants accurately represented that Autovest was the debt collector, and statements about Dunn's and Deuman's employer do not contradict or undermine that representation. Frank next contends that she was not confused by what debt was at issue, but to whom it was owed. That claim is contradicted by the record. Frank answered Autovest's complaint, objecting to any judgment against her because, in her view, she was not properly notified of the sale of her vehicle in 2015. Nowhere did she dispute the nature of the debt or its amount, let alone express any confusion as to what Autovest was or why it was seeking to collect on her debt. Against this backdrop, Defendants' motion for summary judgment is GRANTED. A full-text copy of the District Court's September 30, 2019 Memorandum Opinion is available at https://tinyurl.com/y2pv34nd from Leagle.com. PHYLLIS FRANK, individually and on behalf of all others similarly situated, Plaintiff, represented by Dean Gregory , LAW OFFICES OF DEAN GREGORY, 129 N Lafayette Street, South Lyon, MI 48178 AUTOVEST, LLC & MICHAEL ANDREWS & ASSOCIATES, Defendants, represented by Eric N. Heyer - Eric.Heyer@ThompsonHine.com - THOMPSON HINE LLP, Jessica E. Salisbury-Copper Jessica.Salisbury -Copper@ThompsonHine.com - THOMPSON HINE LLP, pro hac vice & Scott A. King , THOMPSON HINE LLP, pro hac vice. B RILEY FINANCIAL: Continues to Defend Freedman Class Suit ---------------------------------------------------------- B. Riley Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 1, 2019, for the quarterly period ended September 30, 2019, that the company continues to defend a putative class action suit entitled, Freedman v. magicJack VocalTec Ltd. et al., Case 9-17-cv-80940. On August 11, 2017, a putative class action lawsuit titled Freedman v. magicJack VocalTec Ltd. et al., Case 9-17-cv-80940, was filed against magicJack and its Board of Directors in the United States District Court for the Southern District of Florida (Case No: 9:17-cv-80940-RLR). On September 30, 2019, the court determined that oral arguments will be required for this matter. The Company cannot estimate the amount of potential liability, if any, that could arise from this matter. B. Riley Financial, Inc., through its subsidiaries, provides collaborative financial services and solutions in North America, Australia, and Europe. The company operates in four segments: Capital Markets, Auction and Liquidation, Valuation and Appraisal, and Principal Investments - United Online and magicJack. The company was formerly known as Great American Group, Inc. and changed its name to B. Riley Financial, Inc. in November 2014. B. Riley Financial, Inc. was founded in 1973 and is headquartered in Woodland Hills, California. B RILEY FINANCIAL: Mediation in Suit v. MLV Fails ------------------------------------------------- B. Riley Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 1, 2019, for the quarterly period ended September 30, 2019, that the mediation in the class action suit against MLV & Co. produced no settlement. On January 5, 2017, complaints filed in November 2015 and May 2016 naming MLV & Co. ("MLV"), a broker-dealer subsidiary of FBR, as a defendant in putative class action lawsuits alleging claims under the Securities Act, in connection with the offerings of Miller Energy Resources, Inc. have been consolidated. The Master Consolidated Complaint, styled Gaynor v. Miller et al., is pending in the United States District Court for the Eastern District of Tennessee, and, like its predecessor complaints, continues to allege claims under Sections 11 and 12 of the Securities Act against nine underwriters for alleged material misrepresentations and omissions in the registration statement and prospectuses issued in connection with six offerings (February 13, 2013; May 8, 2013; June 28, 2013; September 26, 2013; October 17, 2013 (as to MLV only) and August 21, 2014) with an alleged aggregate offering price of approximately $151,000. Court ordered mediation before a federal magistrate took place on August 6, 2019, with no resolution. B. Riley Financial, Inc., through its subsidiaries, provides collaborative financial services and solutions in North America, Australia, and Europe. The company operates in four segments: Capital Markets, Auction and Liquidation, Valuation and Appraisal, and Principal Investments - United Online and magicJack. The company was formerly known as Great American Group, Inc. and changed its name to B. Riley Financial, Inc. in November 2014. B. Riley Financial, Inc. was founded in 1973 and is headquartered in Woodland Hills, California. CBL CORP: Faces Second Shareholder Class Action ----------------------------------------------- LawFuel reports that the litigation funders are fighting to battle CBL Corp, with the 'first-up-best-dressed' contender being Australian-based IMF Bentham, but now local heavyweight LPF Group has joined the fray with even more heavyweight institutional backing. The second class action against CBL Corp and its directors has been launched with the support of the company's largest, institutional shareholder, Harbour Asset Management, along with Argo Investments and brokers Forsyth Barr. The first action, reported by LawFuel, was taken by Glaister Ennor, supported by Australian-based funder IMF Bentham, although the chances of two actions against the same 'target' is unlikely, as LPF's Phil Newland says. The CBL collapse is one of the largest in New Zealand, as Harbour Asset Management Managing Director Andrew Bascand said. It is also apparent that the directors withdrew considerable sums of money from the company prior to the collapse. CBL, which had a market value of $747 million when its shares were suspended from trading on NZX and ASX in February 2018, listed in 2015 after raising $125.3 million from a float with 80.9 million shares sold at $1.55 each. The shares were valued at $3.17 when trading on NZX was suspended. "Shareholders have lost everything. The directors of CBL need to be held to account and the out-of-pocket shareholders must be compensated," Bascand says. "Legal action is the only way shareholders can get any money back." "We want to know what the facts were and we probably have heard less than half the story." Asked how much his action is seeking, Newland says that will depend on how many CBL shareholders sign up and how much money each has lost. "Our focus is on the losses that the shareholders have occasioned." Of the shares sold in the IPO, 22.8 million worth about $35.3 million were existing shares. In April 2017, directors Peter Harris and Alistair Hutchison and other senior managers sold 20 million shares for $3.26 each, or $65.2 million. While the IMP Bentham-backed suit has engaged Philip Skelton, QC, as their barrister, the LPF-backed suit has engaged Justin Smith, QC Mike Colson and Jonathan Orpin-Dowell and law firm Meredith Connell as their solicitors. Skelton has been arguing the class action against Southern Response on behalf of Brendan and Colleen Ross, who are represented by solicitor Grant Cameron of GCA Lawyers. Both the CBL cases are expected to proceed on an opt-in basis. The LPF-backed group say those who have already signed up to the IMF Bentham-backed case can opt out within 21 days if they wish to join their action. Meredith Connell partner Fionnghuala Cuncannon says the suit against the CBL directors will claim there were false or misleading statements in the IPO documents and then ongoing breaches of the continuous disclosure obligations. In February 2018, CBL revealed the Reserve Bank had been questioning its solvency for some time, certainly since July 2017, but that it had been bound by the central bank's confidentiality order from telling the market any earlier. [GN] CENTURYLINK INC: Masales Sues Over Failure to Protect PII --------------------------------------------------------- Christopher Masales and Patricia Masales, individually and on behalf of all others similarly situated v. CENTURYLINK, INC. and MONGODB, INC., Case No. 3:19-cv-02750-JZ (N.D. Ohio, Nov. 21, 2019), is brought against the Defendants for their failure to protect the Plaintiffs' personally identifiable information. CenturyLink maintains personally identifiable information ("PII") of its customers, including customers' names, e-mail addresses, phone numbers, physical addresses, the contents of their e-mail correspondence, and other account-specific information. As of at least November 17, 2018, CenturyLink stored some or all of the PII it maintained in a database created, operated, and controlled by MongoDB. On September 15, 2019, security researcher Bob Diachenko discovered that the Database "was made publicly available such that no authentication was required to access it." Although "Diachenko notified CenturyLink" of the Security Flaw that same day, "the database had already been exposed for many months"--approximately 10 months in total. This would have given malicious parties more than ample time to use the data in various schemes, the Plaintiffs contend. The Defendants' failures to adopt, implement, maintain, and enforce proper data security policies and procedures resulted in the Plaintiffs' and other similarly situated individuals' PII being improperly disclosed to unauthorized third-parties, says the complaint. The Plaintiffs are natural persons and residents and citizens of Fulton County, Ohio. CenturyLink is a global technology company "that provides residential, business, and enterprise customers with a variety of products and services, including internet, phone, cable TV, cloud solutions, and security".[BN] The Plaintiffs are represented by: Marc E. Dann, Esq. Brian D. Flick, Esq. DANNLAW P.O. Box. 6031040 Cleveland, OH 44103 Office: (216) 373-0539 Facsimile: (216) 373-0536 Email: notices@dannlaw.com - and - Thomas A. Zimmerman, Jr., Esq. Matthew C. De Re, Esq. ZIMMERMAN LAW OFFICES, P.C. 77 W. Washington Street, Suite 1220 Chicago, IL 60602 Office: (312) 440-0020 Facsimile: (312) 440-4180 Email: tom@attorneyzim.com matt@attorneyzim.com CHARLES RIVER: Fails to Pay Overtime Wage Under FLSA, Matson Says ----------------------------------------------------------------- Kathleen Matson, on behalf of herself and others similarly situated v. CHARLES RIVER LABORATORIES, INC., Case No. 1:19-cv-02747 (N.D. Ohio, Nov. 21, 2019), challenges the Defendant's policies and practices that violated the Fair Labor Standards Act, as well as the Ohio Minimum Fair Wage Standards Act. The Plaintiff was a non-exempt employee under the FLSA and the OMFWSA, who routinely worked 40 or more hours per workweek. However, even though the Plaintiff and those similarly situated were required to enter all of their hours worked into the Defendant's timekeeping system, the Defendant did not pay them for all hours worked, the Plaintiff alleges. The Defendant's failure to properly pay her has resulted in her being denied overtime compensation for all hours worked in excess of 40 hours in a workweek, Ms. Matson asserts. The Plaintiff is an adult individual residing in Huron County, Ohio, and was employed by the Defendant. The Defendant is a for-profit Delaware corporation that is registered to conduct business in Ohio as a Foreign Corporation.[BN] The Plaintiff is represented by: Hans A. Nilges, Esq. Shannon M. Draher, Esq. NILGES DRAHER LLC 7266 Portage Street, N.W., Suite D Massillon, OH 44646 Phone: (330) 470-4428 Facsimile: (330) 754-1430 Email: hans@ohlaborlaw.com sdraher@ohlaborlaw.com - and - Jeffrey J. Moyle, Esq. NILGES DRAHER LLC 614 W. Superior Ave., Suite 1148 Cleveland, OH 44113 Phone: 216.230.2955 Facsimile: (330) 754-1430 Email: jmoyle@ohlaborlaw.com CHESAPEAKE EXPLORATION: Wins Summary Judgment in Royalties Suit --------------------------------------------------------------- The United States District Court for the Northern District of Ohio, Eastern Division issued a Memorandum of Opinion and Order granting Defendants' Motion for Summary Judgment and denying Plaintiff's Motion for Summary Judgment in the case captioned DALE H. HENCEROTH, et al., Plaintiffs, v. CHESAPEAKE EXPLORATION, L.L.C., Defendant, Case No. 4:15CV2591 (N.D. Ohio). The named Plaintiffs, Dale H. Henceroth and Marilyn S. Wendt, along with eight others brought suit against Defendant Chesapeake Exploration, L.L.C. (CELLC) for breach of contract arising from CELLC's alleged underpayment of oil and gas royalties because Defendant paid the royalties on the wrong price. Standard of Review Summary judgment is appropriately granted when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The moving party is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. The moving party must "show that the non-moving party has failed to establish an essential element of his case upon which he would bear the ultimate burden of proof at trial. Plaintiff's motion presents three issues. First, whether the gas is marketed at the well to CEMLLC or only in the sale to third-party buyers in downstream markets. Second, whether CELLC realizes the wellhead price or the third-party price. Third, whether costs can be deducted from the price paid by the third-party buyers. The dispute is over when the oil and gas is marketed and what revenue is realized as those terms are used in section 5(B) of the Class Leases. According to Plaintiffs, the only products marketed are the products marketed to the third-party buyers and the only revenues paid to CEMLLC is the real cash paid by the third-party buyers. Plaintiffs contend that CELLC paid their royalties on the wrong price. This claim arises from the two-step manner in which CELLC markets and sells oil and gas that it produces in Ohio. According to Plaintiffs, CELLC's Trial Balance confirms that CELLC receives the gross proceeds paid by the third-party buyers. Plaintiffs cite the deposition testimony of Megan Martin, designated by CELLC in this case as its Rule 30(b)(6) witness on the Trial Balance, that the gross revenue paid by the third-party buyers is received by Defendant, distributed to Defendant, and recorded to Defendant. Plaintiffs argue the netback or wellhead price is never paid because it is merely an account receivable on a general accounting ledger showing a debt owed by CEMLLC to CELLC. According to Plaintiffs, the royalties must be paid on revenue actually realized on a marketed product. It cannot be a debt. In other words, it cannot be money owed. And the only revenue realized is the real cash paid by the third-party buyers to CEMLLC. Plaintiffs also argue that the downstream price must be used because the Class Leases require that the royalties be paid on products that are marketed and there is no marketing in the transaction at the well. Finally, Plaintiffs argue costs can not be deducted from the price paid by the third-party buyers. Meanwhile, Defendant's motion presents the issue of whether CELLC paid royalties consistent with the Class Leases. The Court concludes that it did. Defendant paid one-eighth of the net proceeds realized. The lease language is plain and unambiguous and the evidentiary record is clear: CELLC, the Lessee, paid Plaintiffs 1/8th of the proceeds it received from the sale of the oil and gas produced and marketed from the leaseholds. CELLC sells the oil and gas at the wellhead to CEMLLC pursuant to Ohio Rev. Code Section 1302.01(A)(11), receives a netback price from CEMLLC for those sales, and paid Plaintiffs 1/8th of those proceeds, without taking any deductions from the proceeds realized from CEMLLC. That is exactly what the parties negotiated for in section 5(B) of the Class Leases. Plaintiffs do not dispute CELLC's lease interpretation. Instead, Plaintiffs argue that there are facts in dispute and improperly seek to have the Court interpret the Class Leases to mean Plaintiffs receive proceeds from the sale by CEMLLC to third-party purchasers downstream from the leasehold, rather than the proceeds the Lessee, CELLC, received from the sale of the oil and gas at the leasehold. But, there are no genuine, material facts in dispute. CELCC marketed, sold, and transferred title to the oil and gas to CEMLLC at or near the wellhead; it received proceeds from CEMLLC based on a netback price; and it did not take any deductions from the proceeds it received from the sale to CEMLLC. CELLC is paid only the netback price from CEMLLC, not the third-party price. Defendant correctly notes that Plaintiffs' factual and legal arguments have been rejected at the summary judgment stage by an Ohio trial court and by two arbitration panels, notes the Court. In Gateway Royalty, L.L.C. v. Chesapeake Exploration, L.L.C., No. 2017CVH28970 (Ohio Ct. Com. Pl. Carroll Cty. July 15, 2019), the state court granted defendants' motion for summary judgment in a case with similar facts to the case at bar. It construed Ohio contracts under Ohio law and concluded CELLC's method of calculating royalties, under substantially similar lease language, was proper and Gateway Royalty's argument that material facts were in dispute was rejected. The court found that Gateway Royalty is paid royalties based upon the price that CELLC receives in its sale of the gas to CEMLLC. For these reasons, the Court agrees with Defendant's interpretation of how payment of oil and gas royalties are to be calculated and then paid to Plaintiffs. Therefore, there is no breach of contract. The Court grants Defendant's motion, and denies Plaintiffs' motion. Plaintiffs' Motion for Leave to File Clarification of Answer at Hearing is granted. Final judgment will be entered in favor of Defendant and against the Class on the Second Amended Class Action Complaint. A full-text copy of the District Court's September 30, 2019 Memorandum and Order is available at https://tinyurl.com/y4y2l432 from Leagle.com. Dale H. Henceroth & Marilyn S. Wendt, Plaintiffs, represented by Mark A. Hutson , 20 South Main Street Columbiana, Ohio 44408, Robert L. Guehl -RGuehlEsq@Gmail.com - Guehl Law Office, Robert C. Sanders & James Allison Lowe , Lowe, Eklund & Wakefield, 1660 West Second Street, 610 Skylight Office Tower, Cleveland, Ohio44113 Chesapeake Exploration, LLC, Defendant, represented by Alexandra I. Russell - alexandra.russell@kirkland.com - Kirkland & Ellis, Alexia R. Brancato - alexia.brancato@kirkland.com - Kirkland & Ellis, Andrew P. Guran - apguran@vorys.com - Vorys, Sater, Seymour & Pease, Daniel T. Donovan - daniel.donovan@kirkland.com - Kirkland & Ellis, Peter A. Lusenhop - palusenhop@vorys.com - Vorys, Sater, Seymour & Pease, Ragan Naresh - ragan.naresh@kirkland.com - Kirkland & Ellis, Seamus C. Duffy , Drinker Biddle & Reath, Timothy B. McGranor - tbmcgranor@vorys.com - Vorys, Sater, Seymour & Pease & William M. Connolly - william.connolly dbr.com - Drinker Biddle & Reath. CHRISTMAS TREE SHOPS: Delacruz Files ADA Suit in New York --------------------------------------------------------- Christmas Tree Shops, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Emanuel Delacruz, on Behalf Of Himself And All Other Persons Similarly Situated, Plaintiff v. Christmas Tree Shops, Inc., Defendant, Case No. 1:19-cv-10711 (S.D. N.Y., Nov. 19, 2019). Christmas Tree Shops is an American retail chain that began in Yarmouth Port, Massachusetts, in 1970 as a complex of three small stores. The chain's founders were Doreen and Charles Bilezikian.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com CITIGROUP INC: Bid to Dismiss Mexican Govt. Bonds Suit Granted -------------------------------------------------------------- Citigroup Inc.said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 1, 2019, for the quarterly period ended September 30, 2019, that in the consolidated action captioned IN RE MEXICAN GOVERNMENT BONDS ANTITRUST LITIGATION, the court has granted defendants' motion to dismiss the consolidated amended complaint. The Court entered its order on September 30, 2019. Citigroup Inc., a diversified financial services holding company, provides various financial products and services for consumers, corporations, governments, and institutions in North America, Latin America, Asia, Europe, the Middle East, and Africa. The company operates through two segments, Global Consumer Banking (GCB) and Institutional Clients Group (ICG). Citigroup Inc. was founded in 1812 and is headquartered in New York, New York. CITIGROUP INC: Settlement in Contant Litig. Wins Initial Approval ----------------------------------------------------------------- Citigroup Inc.said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 1, 2019, for the quarterly period ended September 30, 2019, that in the case, CONTANT, ET AL. v. BANK OF AMERICA CORPORATION, ET AL., the court has granted preliminary approval to the settlement between plaintiffs and Citigroup, Citibank, Citicorp, and Citigroup Global Markets Inc. (CGMI). The approval order was entered on July 29, 2019. Citigroup Inc., a diversified financial services holding company, provides various financial products and services for consumers, corporations, governments, and institutions in North America, Latin America, Asia, Europe, the Middle East, and Africa. The company operates through two segments, Global Consumer Banking (GCB) and Institutional Clients Group (ICG). Citigroup Inc. was founded in 1812 and is headquartered in New York, New York. COLLECTION BUREAU: Wilson Files FDCPA Suit in NY under FDCPA ------------------------------------------------------------ A class action lawsuit has been filed against Collection Bureau of the Hudson Valley, Inc. The case is styled as Amy H. Wilson, individually and on behalf of all others similarly situated, Plaintiff v. Collection Bureau of the Hudson Valley, Inc., Defendant, Case No. 2:19-cv-06526 (E.D. N.Y., Nov. 19, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Collection Bureau of Hudson Valley, Inc. (CBHV) is a third-party collection agency based in 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 CONDE NAST: Granillo Suit Moved to Southern District of California ------------------------------------------------------------------ The class action lawsuit styled as Saul Granillo and Jennifer Fite individually and on behalf of all others similarly situated, Plaintiffs v. Conde Nast Entertainment LLC, a Delaware Limited Liability Company, and Does 1-50, Defendants, Case No. 37-02019-00051411-CU-BT-CTL, was removed from the California Superior Court, County of San Diego, to the U.S. District Court for the Southern District of California (San Diego) on Nov. 1, 2019. The Southern District of California Court Clerk assigned Case No. 3:19-cv-02104-BEN-JLB to the proceeding. The suit is assigned to the Hon. Judge Roger T. Benitez. Conde Nast is an American mass media company founded in 1909 by Conde Montrose Nast, based at One World Trade Center in Manhattan and owned by Advance Publications.[BN] The Plaintiffs are represented by: Zachariah Paul Dostart, Esq. DOSTART HANNINK COVENEY LLP 4180 La Jolla Village Drive, Suite 530 La Jolla, CA 92037 Telephone: (858) 623-4200 Facsimile: (858) 623-4299 E-mail: zdostart@sdlaw.com The Defendant is represented by: Peter Zlomke Stockburger, Esq. DENTONS US LLP 4655 Executive Drive, Suite 700 San Diego, CA 92121 Telephone: (619) 595-8018 Facsimile: (619) 232-8311 E-mail: Peter.Stockburger@dentons.com CORDUA RESTAURANTS: Faegre Baker Attorney Discusses Court Ruling ---------------------------------------------------------------- Gustavo Jimenez, Esq. -- gustavo.jimenez@FaegreBD.com -- of Faegre Baker Daniels, in an article for JDSupra, report that on August 14, 2019, the National Labor Relations Board (NLRB) issued a decision in Cordua Restaurants, Inc., 368 NLRB No. 43, expanding upon the U.S. Supreme Court's Epic Systems v. Lewis ruling last year regarding collective actions and mandatory arbitration agreements. Last year, the U.S. Supreme Court decision in Epic Systems held that agreements with class action and collective action waivers do not violate the National Labor Relations Act (NLRA), and any disputes arising out of the employment relationship must be resolved through individual arbitration. Thus, the Court stated that arbitration agreements are to be enforced as written under the Federal Arbitration Act. Since the Epic Systems decision, the NLRB has dismissed complaints alleging that employers unlawfully maintained or enforced arbitration agreements requiring employees to waive their rights to pursue employment disputes through a class or collective action as a condition of employment. The NLRB made two additional interpretations to the Supreme Court decision in Cordua Restaurants. First, the NLRB determined that the NLRA does not prohibit employers from promulgating class action waivers in response to Section 7 activity. This is because the Court stated in Epic Systems that Section 7 did nothing to address the question of class and collective actions. In addition, the NLRB reasoned that when an employee chooses to opt into a collective action, that employee is merely taking a procedural step to participate in a collective action. Thus, an arbitration agreement prohibiting employees from opting into a collective action does nothing to restrict their exercise of Section 7 rights. The NLRB differentiated this from circumstances when an employer promulgates an unlawful rule that does restrict its employees' protected activities, such as implementing a rule prohibiting all solicitation on nonworking time. The promulgation of the revised arbitration agreement in Cordua Restaurants required employees to agree not to opt into a collective action and, instead, resolve their employment-related claims through individual arbitration. Thus, the NLRB found that the revised arbitration agreement was lawful. Additionally, the NLRB found that the NLRA allows employers to discipline employees who refuse to sign a mandatory arbitration agreement. Epic Systems allows an employer to condition employment on signing an arbitration agreement containing class or collective-action waivers. In Cordua Restaurants, the assistant manager distributed a revised arbitration agreement and told employees they would be removed from the schedule if they refused to sign it. Thus, the NLRB found that no unlawful threats were made to the employees. Rather, the statements were lawful expressions of the consequences imposed on employees for failing to sign the agreement. In the wake of the recent Supreme Court case, only time will tell how the NLRB continues to apply this interpretation. [GN] CURALEAF HOLDINGS: Lead Counsel Numbers Narrowed to Two ------------------------------------------------------- Law360 reports that the lead counsel tussle in a proposed class action against cannabis giant Curaleaf Holdings Inc. has been winnowed down to two firms, with Levi & Korsinsky LLP and Wolf Haldenstein Adler Freeman & Herz LLP edging out four other competitors for the reins in a cannabidiol labeling stock drop case. [GN] DESTINY MATERNITY: Wu Files Suit in New York under ADA ------------------------------------------------------ Destiny Maternity Corporation is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kathy Wu, on behalf of herself and all other persons similarly situated, Plaintiff v. Destiny Maternity Corporation, Defendant, Case No. 2:19-cv-06537 (E.D. N.Y., Nov. 19, 2019). Destination Maternity Corporation is a designer and retailer of maternity apparel. It is based in Moorestown, New Jersey.[BN] The Plaintiff is represented by: Darryn G. Solotoff, Esq. 100 Quentin Roosevelt Boulevard, Ste 208 Garden City, NY 11530 Tel: (516) 695-0052 Fax: (516) 706-4692 Email: ds@lawsolo.net DOLLAR TREE: Can Compel Arbitration in Snipes Discrimination Suit ----------------------------------------------------------------- In the case, TERRY T. SNIPES, SR., an individual, Plaintiff, v. DOLLAR TREE DISTRIBUTION, INC., a Virginia corporation, and DOES 1 through 50, inclusive, Defendant, Case No. 2:15-cv-00878-MCE-DB (E.D. Cal.), Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California granted the Defendant's Motion to Compel Arbitration and Amend Operative Class Definition. Through the present class action, Snipes, on behalf of himself and those similarly situated, challenges various wage and hour practices utilized by his employer, Dollar Tree. Dollar Tree initiated an arbitration program for prospective employees approximately five years ago. In May of 2015, the program was expanded to include current employees. At that time, current employees were given an opportunity to either opt out or enter into an arbitration agreement with the Defendant. As to any new individuals hired on or after Oct. 6, 2014, however, Dollar Tree required an agreement to arbitrate as a condition of employment. In the meantime, on April 1, 2015, Snipes, an existing Dollar Tree employee who had chosen to opt out of the arbitration program, brought the first eight causes of action against the Defendant on a class-wide basis pursuant to Federal Rule of Civil Procedure 23. In the Ninth through Sixteenth causes of action, Snipes also sought civil penalties against Dollar Tree pursuant to the provisions of California's Private Attorney General Act ("PAGA"). The following month, on May 11, 2015, the Plaintiff filed an Ex Parte Application for a Temporary Restraining Order ("TRO") seeking to compel Dollar Tree to distribute an informational notice of the present lawsuit to all its employees. At the May 21, 2015, hearing on the TRO, Defendant differentiated between those employees hired before Oct. 6, 2014, who were given an opportunity to opt out of the arbitration agreements, and the Arbitration Associates. The Plaintiffs were concerned with whether arbitration agreements would be enforced against those employees hired before Oct. 6, 2014. In order to eliminate concern, the Defendant agreed not to enforce any arbitration agreement entered into by employees hired prior to that time. The Plaintiffs acknowledged the Defendant's agreement and as such, the Court denied the TRO. According to Dollar Tree, as discovery proceeded it believed both sides recognized that the Arbitration Associates were not included within the class of employees participating in the lawsuit. The Plaintiffs eventually moved to certify the class and subclasses to be included as litigants. On Nov. 28, 2017, the Court granted that Motion and certified the Plaintiffs' classes. The Defendant then moved to reconsider the class certification on Sept. 17, 2018, and that motion was denied. Dollar Tree now moves to enforce the arbitration agreements as to the Arbitration Associates. It further moves to amend the operative class definitions to exclude the Arbitration Associates from the class and subclasses to account for enforcement of those agreements. First, Judge England holds that the Plaintiffs' attempt to compare the case to cases where an employer withheld notice of a lawsuit to induce current employees to sign an arbitration agreement fails. Those cases are distinguishable from the present matter, where prospective employees were required to agree to arbitrate before being hired. The Plaintiffs' argument incorrectly presupposes that new applicants were subject to the same rights as existing employees who worked for Dollar Tree during the time of the alleged damages and already subject to the wage and hour deprivations alleged by the class action. The Defendant's failure to provide notice of the present action does not invalidate their agreements because the Arbitration Associates were not employed by Dollar Tree at the time and thus could not be party to the claims associated with this suit. Accordingly, the Judge finds that a valid agreement to arbitrate exists between the parties. Having determined that an enforceable arbitration agreement is in place between Dollar Tree and the Arbitration Associates, the Judge must next consider whether that agreement covers the particular controversy at issue. He finds that the Plaintiffs' lawsuit was commenced on April 1, 2015, a point in time after the specified cut-off of Feb. 23, 2015 specified in the FAQs, and consequently the FAQs do not exempt the Arbitration Associates from being subject to arbitration in the present matter. As such, claims of the Arbitration Associates are subject to individual arbitration and the Defendant's Motion to Compel Arbitration is thus granted. Given the foregoing conclusion, the class definitions must also be modified. Since the Arbitration Associates must arbitrate their claims, they are not subjected to the class claims alleged. Consequently, the proposed class definition is overbroad. The Plaintiffs' definition fails to limit the class and subclasses to those employees hired after Oct. 6, 2014 whose employment was conditioned on signing an agreement to arbitrate. Accordingly, to properly narrow the class and subclasses, the introductory paragraph of the class definitions for Classes 1-6 are modified to reflect that they pertain only to current and former nonexempt employees of Dollar Tree Distribution Inc. who did not enter into a Mutual Agreement to Arbitrate Claims with Dollar Tree on or after Oct. 6, 2014. For the reasons he stated, Judge England granted the Defendant's Motion to Compel Arbitration and Amend Operative Class Definitions as follows with respect to each class member identified in Appendix A and Appendix B of the Defendant's Notice of Motion: A. Pursuant to the FAA, 9 U.S.C. section 3, as to the class members identified in Appendix A: a. Each is compelled to arbitrate, in the manner provided by his or her Arbitration Agreement with Dollar Tree, the first through eighth claims for relief asserted in the operative complaint, which will be initiated within 90 days of the Order, should the class member so choose; and b. The ninth through seventeenth claims for relief asserted in the operative complaint are dismissed. B. Pursuant to the FAA, 9 U.S.C. section 3, as to the class members identified in Appendix B: a. Each is compelled to arbitrate, in the manner provided by his or her Arbitration Agreement with Dollar Tree, the first through eighth claims for relief asserted in the operative complaint arising on or after Oct. 6, 2014, to be initiated within 90 days of the Order granting this Motion, should the class member so choose; and b. The ninth through seventeenth claims for relief for civil penalties arising on or after Oct. 6, 2014, are dismissed. Pursuant to the Court's inherent authority and broad discretion to modify class definitions and as a consequence of other portions of the Order, the introductory paragraph of class definitions for Classes 1 through 6 is hereby amended from: "All current and former nonexempt employees of Dollar Tree Distribution Inc. who at any time within four (4) years preceding the filing of this action" to read "All current and former nonexempt employees of Dollar Tree Distribution Inc. (who did not enter into a Mutual Agreement to Arbitrate Claims with Dollar Tree on or after October 6, 2014) who at any time within four (4) years preceding the filing of this action." A full-text copy of the Court's Nov. 6, 2019 Memorandum & Order is available at https://is.gd/F7UMwe from Leagle.com. Terry T. Snipes, Plaintiff, represented by Anthony Eugene Guzman -- anthony@suttonhague.com -- Sutton Hague Law Corporation. Terry T. Snipes, Plaintiff, represented by S. Brett Sutton -- brett@suttonhague.com -- Sutton Hague Law Corporation, PC, Jared Hague -- jared@suttonhague.com -- Sutton Hague Law Corporation, PC & Joseph Vidal Macias -- joseph.macias@maxmintegrated.com -- Sutton Hague Law Corporation, PC. Dollar Tree Distribution, Inc., Defendant, represented by Jeffrey J. Mann -- jmann@littler.com -- Littler Mendelson, P.C., Kurt R. Bockes -- kbockes@littler.com -- Littler Mendelson, P.C., Lindbergh Porter, Jr. -- lporter@littler.com -- Littler Mendelson, Elena R. Baca -- elenabacca@paulhastings.com -- Paul Hastings LLP, George W. Abele, Paul Hastings LLP & Ryan David Derry -- ryanderry@paulhastings.com -- Paul Hastings LLP. DYNASTY GUNITE: Fails to Pay Proper Overtime Wages, Botelho Says ---------------------------------------------------------------- JASON BOTELHO, individually and on behalf of all those similarly situated v. DYNASTY GUNITE POOLS, LLC, Case No. 1:19-cv-12160-IT (D. Mass., Oct. 21, 2019), alleges that in violation of the Fair Labor Standards Act, the Defendant does not pay its construction workers, including the Plaintiff, overtime compensation until they hit more than 45 hours in a workweek, even though they should be paid for overtime compensation for hours in excess of 40 hours in a workweek. Dynasty Gunite Pools, LLC, is a limited liability company based in Swansea, Massachusetts. Dynasty does business in Massachusetts, Connecticut and Rhode Island.[BN] The Plaintiff is represented by: Sergei Lemberg, Esq. LEMBERG LAW, L.L.C. 43 Danbury Road, 3rd Floor Wilton, CT 06897 Telephone: (203) 653-2250 Facsimile: (203) 653-3424 E-mail: slemberg@lemberglaw.com FEDERAL NATIONAL: E.D. Tenn Accepts Bank. Ct. Ruling in Cawood Case ------------------------------------------------------------------- The case captioned FEDERAL NATIONAL MORTGAGE ASSOCIATION and SETERUS, INC., Defendants/Appellants, v. JOSEPH C. CAWOOD, Plaintiff/Appellee, Case No. 1:17-cv-357 (E.D. Tenn.), came before the United States District Court for the Eastern District of Tennessee, Chattanooga from the Bankruptcy Court. Defendants/Appellants, Federal National Mortgage Association (FNMA) and Seterus, Inc. (Seterus), object to the Bankruptcy Court's proposed findings of fact and conclusions of law on their motions to dismiss the adversary proceeding filed against them by Plaintiff/Appellee, Joseph C. Cawood. The background of the case notes that the Plaintiff bought a house in Cleveland, Tennessee, in 2004, obtaining a loan from SunTrust Mortgage, Inc. (SunTrust). The loan was secured by a deed of trust. Plaintiff moved to Texas. He fell behind on his loan payments in 2008, and SunTrust instituted foreclosure proceedings. Plaintiff filed a voluntary Chapter 13 bankruptcy petition (the Texas Case) in the Bankruptcy Court for the Southern District of Texas on May 12, 2008, to stop the foreclosure. The Texas Case was completed on May 31, 2013. The Texas Court granted the trustee's June 2013 motion deeming the mortgage current and directing Plaintiff to make future loan payments directly to SunTrust. Plaintiff received a discharge from the Texas Court on July 8, 2013. Plaintiff made loan payments to SunTrust for June, July, August, and September 2013. In October 2013, Seterus sent Plaintiff a letter informing him that Seterus had become the servicer of the loan on behalf of FNMA. The letter stated that there was unpaid interest of $2,591.62 and an escrow overdraft of $745.33 on the loan. Seterus also returned Plaintiff's September payment. Plaintiff made his October 2013 payment to Seterus as instructed. He also retained counsel, who wrote to Seterus in November 2013, resubmitting Plaintiff's September 2013 payment and enclosing a copy of the order from the Texas Case deeming the loan current. Between October 2013 and August 2014, certain patterns repeated. Plaintiff submitted all of his payments to Seterus, Seterus returned certain payments, and Plaintiff resubmitted them. Seterus sent multiple letters to Plaintiff claiming the loan was in default and discussing new payment amounts, a possible loan modification, and the institution of foreclosure proceedings. Plaintiff's counsel sent multiple letters telling Seterus to check the records from the Texas Case, asserting that Plaintiff had made all of his payments since the Texas Case on time, and asserting that foreclosure would violate the orders of the Texas Court. Seterus responded with letters saying the matter was under investigation. Foreclosure was scheduled and advertised for August 14, 2014. In order to stop the sale, Plaintiff filed a Chapter 13 petition on August 12, 2014, in the Bankruptcy Court for the Eastern District of Tennessee, to which Petitioner had returned. Seterus filed an objection to confirmation on the grounds that Plaintiff's plan did not account for arrearages to Seterus of more than $7,000. Plaintiff filed the adversary proceeding on August 11, 2015, against FNMA, Seterus, SunTrust, and other entities allegedly involved in the planned foreclosure. His First Amended Complaint seeks individual and class-action relief. He asserts causes of action for (1) an objection to Seterus's claim; (2) breach of contract; (3) intentional or negligent misrepresentation; (4) negligence; (5) failure to credit payments in violation of 15 U.S.C. Section 1639f; and (6) violation of the Fair Debt Collection Practices Act. Seterus and FNMA each filed a motion to dismiss on July 8, 2016. Seterus argued the Bankruptcy Court lacks subject matter jurisdiction over all of Plaintiff's claims for individual relief because they are attempts to enforce the discharge injunction from the Texas Case, and a contempt action for violation of a discharge injunction can only be heard in the court that issued the injunction. Similarly, Seterus argued for dismissal of the class-action claims as attempts to enforce discharge injunctions of other courts. In the alternative, it argued the Complaint fails to state valid claims for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. FNMA's motion sought dismissal on the grounds that the Complaint does not contain any factual allegations of misconduct by FNMA. In the alternative, FNMA adopted Seterus's arguments for dismissal. The Bankruptcy Court heard oral argument on the motions to dismiss on September 20, 2016. The Bankruptcy Court issued a Memorandum Opinion and Order on September 29, 2017, which constitute the Bankruptcy Court's proposed findings of fact and conclusions of law for this Court's review. Defendants objected to the Bankruptcy Court's proposed findings of fact and conclusions of law on October 27, 2017. Defendants objected only as to the Bankruptcy Court's proposed conclusion that it has subject-matter jurisdiction over Counts Two through Six and the class-action allegations. They do not object to the Bankruptcy Court's proposed conclusions as to subject-matter jurisdiction over the core claim in Count One or as to whether Plaintiff's various counts state claims on which relief may be granted. STANDARD OF REVIEW A bankruptcy judge may hear a matter and submit proposed findings of fact and conclusions of law to the district court if the proceeding is not a core proceeding but is otherwise related to a case under title 11. The district court may enter a final order or judgment after considering the bankruptcy judge's proposed findings and conclusions and after reviewing de novo those matters to which any party has timely and specifically objected. The Allegations in Plaintiff's Complaint Defendants point first to the Complaint's allegation that one of Seterus's letters to Plainitff said Plaintiff owed $3,000 in arrears not paid in his prior Chapter 13 case. Defendants cite no legal authority binding a plaintiff to a factual assertion in a letter from a defendant, merely because the plaintiff describes that letter in the complaint. Defendants also point to the Complaint's multiple allegations about letters Plaintiff's counsel sent to Seterus claiming that the foreclosure action is in direct violation of the Bankruptcy Order. These were statements Plaintiff's own counsel allegedly made before the Complaint was filed, when trying to persuade Defendants that they should not foreclose on Plaintiff's deed of trust. Similarly to the preceding argument, Defendants cite no legal authority binding Plaintiff to legal theories he advanced before the litigation was filed. On the contrary, even in pleadings, a party may set out 2 or more statements of a claim or defense alternatively or hypothetically. As Plaintiff argues, these are seven paragraphs spread throughout the Complaint and multiple causes of action may be brought under a single set of facts. Defendants have not shown Plaintiff is bound to the positions his counsel asserted in his letters to Defendants for purposes of the causes of action he may allege, no matter how many such letters there were. Count Two, for breach of contract, alleges the Defendants breached the contract created between the parties by the loan documents, Deed of Trust, and subsequent assignments by commencing a foreclosure proceeding. Defendants argue this must be a claim for violation of the discharge injunction and not for breach of contract, because Plaintiff did not attach copies of the loan documents to the Complaint, and because Plaintiff did not identify specific sections of the loan documents Defendants violated. The Court disagrees. A pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Plaintiff has done that here. In the incorporated allegations, he has alleged that his loan was current as of May 2013 and that he made all of his subsequent payments, but that Defendants claimed he was in default and instituted foreclosure proceedings anyway. This is sufficient as a short and plain statement of facts showing Plaintiff is entitled to relief for breach of contract. Count Three, for intentional or negligent misrepresentation, alleges Defendants made false representations by telling Plaintiff his loan was in default, publishing the foreclosure sale, objecting to confirmation of Plaintiff's plan by alleging he was in default, and ignoring requests for an accounting. Defendants argue every alleged misrepresentation is grounded in the default that Plaintiff alleges resulted from the failure to reflect his loan as current as required by the Texas bankruptcy court. This argument fails for the same reasons the Court explained as to Count Two. Count Four, for negligence, alleges Defendants negligently failed to properly correct its accounting records to reflect that the Plaintiff was current on his mortgage upon the completion of the Texas Case. Defendants argue that Count Four facially ties to the orders of the Texas Bankruptcy Court and is premised on the idea that Seterus was obligated to correct its record based on the Texas Bankruptcy Court proceeding. In his response, Plaintiff argues Defendants' negligent handling of his account is clear from Defendants' months of statements that it was investigating Plaintiff's account and would explain the results, which it never did. This does not, however, explain how the description of Defendants' negligence in Count Four is for something other than the failure to obey the Texas Court's orders. Plaintiff also argues it is clear Defendants hatched a scheme to target individuals recently released from Chapter 13 bankruptcies for foreclosure. As Defendants point out, schemes involve intentional actions, not negligent ones. This argument also does nothing to separate Plaintiff's allegation of wrongdoing from the Texas Court's orders. Last, Plaintiff argues that Defendants did not become interested parties in Plaintiff's mortgage until after the Texas Case was complete, so their alleged negligence could not have had anything to do with the Texas Court's orders. Defendants are correct, however, that they may be held liable for contempt even though they were not interested parties while the Texas Case was going on. Count Four could be read to allege a violation of the discharge order. The Court will therefore consider it further in the following section, regarding whether Plaintiff's loan was included in the discharge injunction. Count Five, for failure to credit payments on receipt in violation of 15 U.S.C. Section 1639f, alleges on information and belief that SunTrust and Seterus failed to credit payments to Plaintiff's account as of the date of receipt for the purpose of assessing late charges to the account. Count Six, for violation of the FDCPA, alleges Defendants demanded an amount from Plaintiff which is inaccurate and inflated, and in violation of any contract between the parties. Count Six also lists specific actions that allegedly violated specific provisions of the FDCPA. Defendants allege these counts also arise out of Defendants' alleged failure to credit Plaintiff in accordance with the Texas bankruptcy court's order. This argument fails for the same reasons the Court explained as to Count Two. For these reasons, the Court will ACCEPT the Bankruptcy Court's proposed findings of fact and conclusions of law, DENY Seterus's motion to dismiss, GRANT IN PART and DENY IN PART FNMA's motion to dismiss, DISMISS Count Six of Plaintiff's Amended Complaint against FNMA, and REMAND the case to the Bankruptcy Court for further proceedings consistent with this opinion. A full-text copy of the District Court's September 30, 2019 Memorandum is available at https://tinyurl.com/yxj5qmvu from Leagle.com. Federal National Mortgage Association & Seterus, Inc, Appellants, represented by Austin L. McMullen -, amcmullen@bradley.com - Bradley Arant Boult Cummings LLP & J. Douglas Minor, Jr. , Bradley Arant Boult Cummings LLP, 200 Clinton Avenue W, Suite 900 Huntsville, AL 35801, pro hac vice. Joseph C. Cawood, Appellee, represented by Richard Bradley Banks , Richard Banks & Associates, P.C. & Richard L. Banks , Richard Banks & Associates, P.C.,393 Broad St NW, Cleveland, Tennessee 37311. FITBIT: Dec. 22 Deadline Set to Request for Settlement Payout ------------------------------------------------------------- Dworken & Bernstein Co. L.P.A. and Bonezzi Switzer Polito & Hupp Co. L.P.A. remind consumers that they have until December 22, 2019, to request their $12.50 payment from the Fitbit Class Action Settlement. Don't Lose Your $12.50 PAYMENT From The Fitbit Class Action Settlement. File your Claim Form by December 22, 2019. The United States District Court, N.D. California, ordered us to notify you again of your right to $12.50 from a class action settlement in Brickman, et al. v. Fitbit, Case No. 3:15-cv-2077. Over 60,000 people have claimed their money. Don't lose yours. Questions? Call 1-855-336-4163 or visit www.SleepDeviceSettlement.com [GN] FLOOR & DECOR: Securities Litigation Underway in Georgia -------------------------------------------------------- Floor & Decor Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 1, 2019, for the quarterly period ended September 26, 2019, that the class action suit entitled, Taylor v. Floor & Decor Holdings, Inc., et al. has been re-captioned as, In re Floor & Decor Holdings, Inc. Securities Litigation, No. 1:19-cv-02270-SCJ (N.D. Ga.). On May 20, 2019, an alleged stockholder of the Company filed a putative class action lawsuit, Taylor v. Floor & Decor Holdings, Inc., et al., No. 1:19-cv-02270-SCJ (N.D. Ga.), in the United States District Court for the Northern District of Georgia against the Company and certain of its officers, directors and stockholders. On August 14, 2019, the Court named a lead plaintiff, and the case was re-captioned In re Floor & Decor Holdings, Inc. Securities Litigation, No. 1:19-cv-02270-SCJ (N.D. Ga.). The operative complaint alleges certain violations of federal securities laws based on, among other things, purported materially false and misleading statements and omissions allegedly made by the Company between May 23, 2018 and August 1, 2018 and seeks class certification, unspecified monetary damages, costs and attorneys' fees and equitable relief. The Company denies the material allegations in this lawsuit, which is in the early stages and has not yet been certified as a class, and intends to defend itself vigorously. Floor & Decor said, "In addition, the Company maintains insurance that may cover any liability arising out of this litigation up to the policy limits and subject to meeting certain deductibles and to other terms and conditions thereof. Estimating an amount or range of possible losses resulting from litigation proceedings is inherently difficult, particularly where the matters involve indeterminate claims for monetary damages and are in the stages of the proceedings where key factual and legal issues have not been resolved. For these reasons, we are currently unable to predict the ultimate timing or outcome of or reasonably estimate the possible losses or a range of possible losses resulting from this litigation." Floor & Decor Holdings, Inc., formerly FDO Holdings, Inc., incorporated on October 15, 2010, is a retailer of hard surface flooring and related accessories. The Company retails its products such as tile, stone, wood, marble, glass and decoratives. The company is based in Smyrna, Georgia. FMT SJ LLC: Aguayo Files Labor Class Action in Cal. Sup. Ct. ------------------------------------------------------------- MARISOL AGUAYO, PERLA DE GUZMAN, SAJIDA AMIN, and STEFANI GONZALEZ, on behalf of themselves and those similarly situated v. FMT SJ, LLC, a limited liability corporation, dba FAIRMONT SAN JOSE; and DOES 1 through 50, inclusive, Case No. 19CV356971 (Cal. Super., Santa Clara Cty., Oct. 21, 2019), alleges that since January 2019, the Defendant has violated the California Labor Code by failing and refusing to provide suitable seating for the Plaintiffs and other current and former employees of FMT. The Plaintiffs are current employees of Fairmont San Jose, who are currently working as Front Desk Clerks, Registration Agents or Associates at the Defendants' hotel. Fairmont San Jose does business in California, including in Santa Clara County. Fairmont San Jose operates a hotel in San Jose, California.[BN] The Plaintiffs are represented by: Caren P. Sencer, Esq. Katharine R. Mcdonagh, Esq. WEINBERG, ROGER & ROSENFELD, A PROFESSIONAL CORPORATION 1001 Marina Village Parkway, Suite 200 Alameda, CA 94501 Telephone: (510) 337-1001 Facsimile: (510) 337-1023 E-mail: csencer@unioncounsel.net kmcdonagh@unioncounsel.net FORESTERS FINANCIAL: Connor Sues Over Nuisance Telemarketing ------------------------------------------------------------ James Van Connor, individually and on behalf of a class of all persons and entities similarly situated v. FORESTERS FINANCIAL SERVICES, INC. and ONE LIFE AMERICA, INC., Case No. 6:19-cv-03283-BHH (D.S.C., Nov. 21, 2019), is brought under the Telephone Consumer Protection Act, a federal statute enacted in response to widespread public outrage about the proliferation of intrusive, nuisance telemarketing practices. The Plaintiff alleges that Defendant One Life sent him a pre-recorded telemarketing call for purposes of promoting Foresters goods and services without prior express written consent. Because these calls were transmitted using technology capable of generating thousands of similar calls per day, the Plaintiff sues on behalf of a proposed nationwide class of other persons, who received similar calls. A class action is the best means of obtaining redress for the Defendants' illegal telemarketing and is consistent both with the private right of action afforded by the TCPA, the Plaintiff contends. James Van Connor resides in Greenville County, South Carolina. The Defendants offer financial service products.[BN] The Plaintiff is represented by: David A. Maxfield, Esq. DAVE MAXFIELD, ATTORNEY, LLC P.O. Box 11865 Columbia, SC 29211 Phone: 803-509-6800 Fax: 855-299-1656 Email: dave@consumerlawsc.com GOLDMAN SACHS: Faces Curtis Suit Alleging Violation of TCPA ----------------------------------------------------------- Mazie S. Curtis, on behalf of herself and all others similarly situated v. GOLDMAN SACHS BANK USA a/k/a MARCUS BY GOLDMAN SACHS, Case No. 8:19-cv-02876-WFJ-CPT (M.D. Fla., Nov. 21, 2019), is brought to seek damages, as well as injunctive relief, for the Defendant's violations of the Telephone Consumer Protection Act. The Plaintiff asserts that the Defendant has placed several phone calls to her cellular phone during which she experienced the Defendant's use of prerecorded messages. The Defendant's relentless collection campaign caused the Plaintiff to demand that the Defendant cease contacting her. Despite the Plaintiff's efforts, the Defendant continued to regularly call her cellular phone, says the complaint. The Plaintiff is a natural person residing in Pinellas County, Florida. The Defendant is engaged in the business of offering loans and collecting or attempting to collect, directly or indirectly, debts owed or due using the mail and telephone from consumers across the country.[BN] The Plaintiff is represented by: Alexander J. Taylor, Esq. SULAIMAN LAW GROUP, LTD. 2500 South Highland Ave., Suite 200 Lombard, IL 60148 Phone: (630) 575-8181 Facsimile: (630) 575-8188 Email: ataylor@sulaimanlaw.com GOLDMAN SACHS: Settlement Reached in GSE Bonds Antitrust Suit ------------------------------------------------------------- The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 1, 2019, for the quarterly period ended September 30, 2019, that the firm and class plaintiffs reached a settlement in principle in the class action suit related to GSE Bonds. Goldman Sachs & Co. LLC (GS&Co.) is among the dealers named as defendants in numerous putative antitrust class actions relating to debt securities issued by Federal National Mortgage Association, Federal Home Loan Mortgage Corporation, Federal Farm Credit Banks Funding Corporation and Federal Home Loan Banks (collectively, the GSEs), filed beginning in February 2019 and consolidated in the U.S. District Court for the Southern District of New York. The third consolidated amended complaint, filed on September 10, 2019, asserts claims under federal antitrust law in connection with an alleged conspiracy among the defendants to manipulate the secondary market for debt securities issued by the GSEs. The complaint seeks declaratory and injunctive relief, as well as treble damages in unspecified amounts. Beginning in September 2019, the State of Louisiana and the City of Baton Rouge filed complaints in the U.S. District Court for the Middle District of Louisiana against the class defendants and a number of dealers alleging the same claims as in the class action. On October 2, 2019, the firm and class plaintiffs reached a settlement in principle, subject to documentation and court approval. The firm has reserved the full amount of its proposed contribution to the settlement. The Goldman Sachs Group, Inc. operates as an investment banking, securities, and investment management company worldwide. It operates in four segments: Investment Banking, Institutional Client Services, Investing & Lending, and Investment Management. The Goldman Sachs Group, Inc. was founded in 1869 and is headquartered in New York, New York. GOYENETCHE DAIRY: Tiscareno Files Suit in California ---------------------------------------------------- A class action lawsuit has been filed against Goyenetche Dairy. The case is styled as Francisco Tiscareno, an individual, on behalf of the state of California, as a private Attorney General, and on behalf of all others similarly situated, Plaintiff v. Goyenetche Dairy, business formation unknown, Defendant, Case No. BCV-19-103255 (Cal. Super Ct., Kern County, Nov. 19, 2019). The case type of the lawsuit is stated as CV Other Employment - Civil Unlimited. Goyenetche Dairy is a Dairy farm in California.[BN] The Plaintiff is represented by: Martin E Sullivan, Esq. Melmed Law Group, P.C. 1180 S Beverly Dr, Ste 610 Los Angeles, CA 90035-1158 Tel: (310) 824-3828 Email: ms@melmedlaw.com GRAND CENTRAL: Rojas-Maravilla Seeks to Recover Overtime Wages -------------------------------------------------------------- MISAEL ROJAS-MARAVILLA, individually and in behalf of all other persons similarly situated, Plaintiff v. GRAND CENTRAL STAR CAFE, INC. and WILLIE GOMEZ; jointly and severally, Defendant, Case No. 1:19-cv-10178 (S.D.N.Y., Nov. 1, 2019), seeks to recover unpaid or underpaid minimum wages, overtime compensation and other relief pursuant to the Fair Labor Standards Act, the New York Labor Law and the Wage Theft Prevention Act. According to the complaint, the Defendants employed the Plaintiff from March 2009 until November 2017. The Defendants employed the Plaintiff as a chef's assistant. He worked for the Defendants approximately 37.5 to 48.5 hours per week. The Plaintiff contends he and party plaintiffs worked more than 40 hours each workweek, yet the Defendants willfully failed to pay them overtime compensation of one and one-half times their regular rate of pay. The Defendants did not launder or maintain the Plaintiff's required uniforms and he laundered and maintained the uniforms at his expense because the Defendants failed to pay an allowance for uniform maintenance, the lawsuit says. The Defendants' business is a full-service restaurant doing business as Grand Central Star Cafe and located at 463 Lexington Ave., in New York City.[BN] The Plaintiff is represented by: John M. Gurrieri, Esq. Justin A. Zeller, Esq. LAW OFFICE OF JUSTIN A. ZELLER, P.C. 277 Broadway, Suite 408 New York, NY 10007-2036 Telephone: (212) 229-2249 Facsimile: (212) 229-2246 E-mail: jmgurrieri@zellerlegal.com jazeller@zellerlegal.com GREGORY W. GRAY: Investors Lose Class Certification Bid ------------------------------------------------------- Law360 reports that a group of investors won't get a rethink of their rejected bid for class certification in a suit against an imprisoned Twitter stock fraudster because they "seem to misundertand the allocation of burdens" in arguing their securities fraud claims, a New York federal judge said. Lead plaintiffs Stevens Amerio and Andrew Goldberg say they lost $300,000 in Gregory W. Gray's scheme in which the central New York businessman acquired fewer private Twitter Inc. shares ahead of its initial public offering. [GN] HARD ROCK: Saenger Theatre Employee Files Class Action ------------------------------------------------------ Paul Murphy, writing for Eyewitness News, reports that a new lawsuit is seeking damages on behalf of workers who continue to suffer economic losses as a result of the collapse of the half-finished Hard Rock Hotel in New Orleans. The lead plaintiff in the case is Kerri Brunson, a part-time employee at the Saenger Theatre. "You have workers who are working in businesses in the areas that were closed off," attorney Mark Glago said. "You have business owners in those areas and others that suffered economic loss." The building collapse across North Rampart Street from the Saenger forced the historic theater to cancel shows. On Oct. 21, the crew for Wicked was finally allowed back in the building to remove their props and equipment. The Oct. 20's crane implosion broke three windows at the Saenger and the initial collapse punched an 8-foot-by-3-foot hole in the roof. The class-action lawsuit demands compensation for business owners whose operations were interrupted by the collapse as well as their employees and residents who haven't been able to get back to their homes since the area was closed off after the collapse. The suit hasn't received approval to proceed as a class action as of Oct. 21. "We are grateful for the work of the city, first responders and everyone involved in progressing the situation at the Hard Rock Hotel as safely as possible," Saenger Theatre General Manager Sam Voisin said in a prepared statment. "We are working closely with the city to determine next steps. We look forward to welcoming the community back to the historic Saenger Theatre soon." The blast also shattered about 10 windows at the Hotel Maison Lafitte near Canal Street and Roosevelt Way. Hotel manager George Friedman told WWL-TV the intensity of the implosion surprised him. "I was sitting on a little upside down Home Depot pail," Friedman said. "It knocked me off the pail. At that time I didn't even realize it, my windows shattered." A judge's order now in place prevents the builder, engineers and others in charge of the partially built structure from destroying potential evidence. "All the emails, text messages that are going on they now have to preserve," Glago said. "There's also samples of building materials we want preserved as well which the judge allowed." Glago added they are not seeking to interfere with the ongoing investigation into the cause of the building collapse. Attorneys are seeking class action status in this most recent lawsuit. They were due back in court on Oct. 30 for a hearing on a preliminary injunction. [GN] HARMON STORES: Delacruz Alleges Violation under Disabilities Act ---------------------------------------------------------------- Harmon Stores, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Emanuel Delacruz, on Behalf Of Himself And All Other Persons Similarly Situated, Plaintiff v. Harmon Stores, Inc., Defendant, Case No. 1:19-cv-10706 (S.D. N.Y., Nov. 19, 2019). Harmon Stores, Inc. operates as a cosmetics, and health and beauty care discount retailer in Connecticut, New Jersey, and New York.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Tel: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com HAYCO CORP: Violates Overtime Provisions of FLSA, Huitzil Claims ---------------------------------------------------------------- Perfecto Huitzil, Rogelio Hutizil, Francisco Diaz, Francisco Diaz III, Obispo Montero, on behalf of themselves and all others similarly situated v. HAYCO CORP., ALEX HAY, and FRED HAY, Case No. 1:19-cv-10819 (S.D.N.Y., Nov. 21, 2019), is brought for Defendants' systemic and continuous violations of the overtime provisions of the Fair Labor Standards Act and the New York Labor Law. The Plaintiffs regularly worked as many as seven days a week, and well over 40 hours each week, including the requirement that they be on-call 24 hours a day, seven days a week to deal with any issues in their assigned buildings, without receiving overtime compensation as required by law, says the complaint. The Plaintiffs are superintendents, who have worked for properties owned and/or managed by the Defendants at various times between 2000 and the present. Hayco is a real estate acquisition company with a portfolio comprising of at least 25 residential buildings located throughout New York.[BN] The Plaintiffs are represented by: Chaya M. Gourarie, Esq. JOSEPH & NORINSBERG, LLC 225 Broadway, Suite 2700 New York, NY 10007 Phone: (212) 227-5700 Fax: (212) 406-6890 Email: chaya@norinsberglaw.com HOME POINT: $$2.2MM Deal in Noroma FLSA Suit Gets Final Approval ---------------------------------------------------------------- In the case, BRANDON NOROMA, Plaintiff, v. HOME POINT FINANCIAL CORPORATION, Defendant, Case No. 17-cv-07205-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California (i) granted the Plaintiffs' unopposed motion for final approval of the parties' proposed class action settlement; and (2) granted in part the Plaintiffs' unopposed motion for attorneys' fees, expenses, and incentive awards. Although Plaintiff Norona initially filed the case as the single named Plaintiff, Plaintiff Corbin was added to the action on April 16, 2019, following the Court's order granting preliminary approval of the class action settlement. Plaintiffs Norona and Corbin brought the putative labor and employment class action against Defendant Home Point. They allege, on behalf of themselves and all others similarly situated, that the Defendant had a uniform policy and practice of failing to (1) include commissions and bonuses as wages when calculating overtime pay; (2) pay premiums for meal and rest breaks; (3) provide complete wage statements; and (4) pay all wages owed at the time of termination of its employees, in violation of the Fair Labor Standard Act ("FLSA") and California law. The Plaintiffs further sought civil penalties under California's Private Attorneys' General Act ("PAGA"). The Plaintiffs brought claims on behalf of two groups of non-exempt Home Point employees, including "loan originators, mortgage professionals, loan officers, and loan processors" who were not compensated for all hours that they worked. First, the Plaintiffs asserted a nationwide, opt-in collective action under FLSA, 29 U.S.C. Section 216(b), on behalf of Home Point employees who worked from three years prior to the filing date up to the date of judgment ("FLSA Collective"). Second, they asserted claims under the California Labor Code, California Business and Professions Code, and PAGA as part of an opt-out class action composed of Home Point employees who worked from four years prior to the filing date up to the date of judgment ("California Class"). On May 17, 2018, the parties held an all-day mediation before the Hon. William J. Cahill, during which they reached a settlement in principle. The parties filed a motion for settlement, and the Court granted preliminary approval of the settlement on April 12, 2019. The FLSA Collective is defined as all persons currently or previously employed by Defendant in the United States while residing outside California, including under Defendant's previous name, Maverick Funding Corp., as non-exempt loan originators, mortgage professionals, loan officers, loan processors and other non-exempt employees in positions that were eligible for commissions and/or non-discretionary bonuses, the amounts of which are measured by or dependent on hours worked, production, or efficiency, from Dec. 19, 2014, through and including Sept. 30, 2018, who have not previously released their claims. Individuals who resided in California for part of the relevant time period and outside of California for part of the relevant time period are included in the California Class for the workweeks employed by the Defendant and residing in California, and included in the FLSA Collective for the workweeks employed by the Defendant and residing in the United States but outside of California. The California Class is defined as all persons currently or previously employed by Defendant in California, including under its prior name, Maverick Funding Corp., as non-exempt loan originators, mortgage professionals, loan officers, loan processors and other non-exempt employees in positions that were eligible for commissions and/or non-discretionary bonuses, the amounts of which are measured by or dependent on hours worked, production, or efficiency, from Dec. 19, 2013 through and including Sept. 30, 2018, who have not previously released their claims. Individuals who resided in California for part of the relevant time period and outside of California for part of the relevant time period are included in the California Class for the workweeks employed by Defendant and residing in California, and included in the FLSA Collective for the workweeks employed by Defendant and residing outside of California. The Defendant has agreed to pay up to $500,000 to the FLSA Collective, with the actual amount paid out based on the number of opt-ins. Of the estimated 1,382 FLSA Collective members who were sent notice, 461 have opted in. FLSA Collective members will receive a pro-rata share of the available funds, based on the number of weeks the member worked during the covered period as reflected in the following formula: (FLSA Collective Member's Total Workweeks/Total Workweeks in the Settlement Collective combined) x FLSA Collective Fund. However, the "Total Workweeks in the Settlement Collective combined" will include all 1,382 putative members of the collective, and not just the 461 who opted in. After fees and costs, the Plaintiffs estimate that $130,681.75 will be paid out to FLSA Collective members. The average award is expected to be approximately $284.09. For tax purposes, the awards will be allocated as 50% wages and 50% liquidated damages. The Defendant has agreed to pay a total of $1.725 million, with no reversion, for the California Class fund. Of the estimated 255 California Class members, only two have opted out, for a total of 253 total participating members. California Class members will receive a pro-rata share of the available funds, based on the number of weeks the member worked during the covered period. After fees and costs, the Plaintiff estimates that $1.1 million will be paid out to the California Class members. The average award is expected to be over $4,000. For tax purposes, the awards will be allocated as one-third wages, one-third statutory and civil penalties, and one-third interest. The Defendant has agreed to pay $25,000 to settle claims under PAGA. Of this, three-quarters ($18,750) will be paid to the California Labor Workforce Development Agency, and one-quarter ($6,250) will be paid to the California Class. All California Class members (even those who opt out) will receive their pro-rata share of the PAGA payment. The parties agreed that third-party settlement administrator ILYM Group, Inc. would send notices to class members in accordance with the Settlement Agreement. The Settlement Agreement permits (i) Plaintiffs Norona and Corbin to seek a service award of up to $10,000 each; and (ii) the Plaintiffs' counsel to file a separate motion for attorneys' fees, seeking up to one-third of the gross settlement fund of $2.225 million. Judge Gilliam (i) granted the Plaintiffs' Motion for Final Approval of Class Action Settlements; and (ii) granted in part the Plaintiffs' Motion for Class Counsel's Attorneys' Fees, Expenses, and Service Awards. He approved the settlement amount of $2.225 million, including payments of attorneys' fees in the amount of $556,250, or 25% of the settlement amount; and an incentive fee for the two named Plaintiffs in the amount of $10,000 for Plaintiff Norona and $5,000 for Plaintiff Corbin, for a total of $15,000. The parties and settlement administrator are directed to implement this Final Order and the settlement agreement in accordance with the terms of the settlement agreement. The parties are further directed to file a stipulated final judgment within 21 days from the date of the Order. A full-text copy of the Court's Nov. 6, 2019 Order is available at https://is.gd/Ek1MfN from Leagle.com. Brandon Noroma, Plaintiff, represented by Reuben D. Nathan -- rnathan@nathanlawpractice.com -- Nathan & Associates, APC &Matthew Righetti -- matt@righettilaw.com -- Righetti Glugoski, P.C. Home Point Financial Corporation, Defendant, represented by Rod M. Fliegel -- rfliegel@littler.com -- Littler Mendelson P.C., Alison S. Hightower -- ahightower@littler.com -- Littler Mendelson & Gal Gressel. HSBC BANK: Ahmed Moves for Final Approval of Class Settlement ------------------------------------------------------------- The Plaintiffs in the lawsuit titled SABER AHMED and JOHN MONTELEONE, individually and on behalf of all others similarly situated v. HSBC BANK USA, NATIONAL ASSOCIATION, and PHH MORTGAGE CORPORATION, Case No. 5:15-cv-02057-FMO-SP (C.D. Cal.), move the Court for an order granting final approval of the parties' class action settlement. The Court will commence a hearing on December 12, 2019, at 10:00 a.m., to consider the Motion.[CC] The Plaintiffs are represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard Street, Suite 780 Woodland Hills, CA 91367 Telephone: (323) 306-4234 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com - and - Abbas Kazerounian, Esq. Jason A. Ibey, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com jason@kazlg.com - and - Beth E. Terrell, Esq. Jennifer Rust Murray, Esq. Adrienne D. McEntee, Esq. TERRELL MARSHALL LAW GROUP PLLC 936 North 34th Street, Suite 300 Seattle, WA 98103 Telephone: (206) 816-6603 Facsimile: (206) 319-5450 E-mail: bterrell@terrellmarshall.com jmurray@terrellmarshall.com amcentee@terrellmarshall.com - and - Alexander H. Burke, Esq. Daniel J. Marovitch, Esq. BURKE LAW OFFICES, LLC 155 North Michigan Avenue, Suite 9020 Chicago, IL 60601 Telephone: (312) 729‐5288 Facsimile: (312) 729‐5289 E-mail: aburke@burkelawllc.com dmarovitch@burkelawllc.com - and - Matthew R. Mendelsohn, Esq. MAZIE SLATER KATZ & FREEMAN, LLC 103 Eisenhower Parkway Roseland, NJ 07076 Telephone: (973) 228-9898 Facsimile: (973) 228-0303 E-mail: mmendelsohn@mskf.net HUTCHINSON TECHNOLOGY: Faces Rinehart Antitrust Suit in Calif. -------------------------------------------------------------- Christopher Rinehart, Joseph Mattingly, and Thomas Thele, individually and on behalf of all others similarly situated v. HUTCHINSON TECHNOLOGY INC., HEADWAY TECHNOLOGIES, INC., MAGNECOMP PRECISION TECHNOLOGY PUBLIC CO. LTD., NAT PERIPHERAL (DONG GUAN) CO., LTD., NAT PERIPHERAL (H.K.) CO., LTD., NHK SPRING CO. LTD., NHK INTERNATIONAL CORPORATION, NHK SPRING (THAILAND) CO., LTD., NHK SPRING PRECISION (GUANGZHOU) CO., LTD., SAE MAGNETICS (H.K.) LTD., and TDK CORPORATION, Case No. 3:19-cv-07690 (N.D. Cal., Nov. 21, 2019), arises out of the Defendants' anticompetitive conduct and global conspiracy to fix prices and allocate market shares in the market for hard disk drive suspension assemblies, in violation of the Sherman Antitrust Act. Hard disk drives or HDDs containing suspension assemblies are incorporated into many computers and other electronic devices requiring electronic storage. During the period of May 2008 until such time as the Defendants' unlawful conduct ceased, the Defendants and their co-conspirators contracted, combined, and conspired to fix, raise, maintain, and/or stabilize the prices of and allocate market shares for HDD suspension assemblies in the United States. The Defendants and their co-conspirators have participated in a combination and conspiracy to suppress and eliminate competition in the market for HDD suspension assemblies by agreeing to rig bids for, and to fix, stabilize, and maintain the prices of HDD suspension assemblies sold in the United States and elsewhere. The combination and conspiracy that Defendants and their co-conspirators were engaged in was an unreasonable restraint of interstate and foreign trade and commerce in violation of the Sherman Antitrust Act, state antitrust and consumer protection statutes, and the common law of unjust enrichment. As a direct and proximate result of the anticompetitive and unlawful conduct alleged herein, prices for HDD suspension assemblies were maintained and stabilized at artificially inflated levels, eliminating and excluding competition, extending or maintaining the Defendants' market power, and fortifying barriers to entry in the HDD suspension assemblies market, says the complaint. The Plaintiffs purchased at least one HDD suspension assembly indirectly from at least one Defendant, and were injured in their business or property as a result of one or more Defendant's unlawful conduct. The Defendants manufactured HDD suspension assemblies and sold them in, or for delivery to, the United States.[BN] The Plaintiffs are represented by: John H. Weston, Esq. Jerome H. Mooney, Esq. G. Randall Garrou, Esq. WESTON, GARROU & MOONEY 12121 Wilshire Boulevard, Suite 525 Los Angeles, CA 90025 Phone: (310) 442-0072 Fax: (310) 442-0899 Email: johnhweston@wgdlaw.com jerrym@mooneylaw.com randygarrou@wgdlaw.com - and - Richard M. Hagstrom, Esq. Michael R. Cashman, Esq. Nicholas S. Kuhlmann, Esq. HELLMUTH & JOHNSON, PLLC 8050 West 78th Street Edina, MN 55439 Phone: (952) 941 4005 Fax: (952) 941 2337 Email: rhagstrom@hjlawfirm.com mcashman@hjlawfirm.com nkuhlmann@hjlawfirm.com INTERSTATE COLLECTIONS: Abusively Collect Debts, Roberts Claims --------------------------------------------------------------- Sharon Roberts, individually and on behalf of others similarly situated v. INTERSTATE COLLECTIONS, INC., Case No. 1:19-cv-00137-DBP (D. Utah, Nov. 21, 2019), arises out of the Defendant's attempts to unlawfully and abusively collect debts allegedly owed by the Plaintiff and Class Members, in violation of the Fair Debt Collection Practices Act. On January 9, 2019, the Defendant mailed a letter to the Plaintiff. Overshadowing occurs when the letter fails to explain an apparent contradiction which in any way affects the debtor's rights. This initial communication to the Plaintiff by the Defendant included a written notice, the language of which overshadowed, weakened, and failed to comply with, the notice required by the FDCPA, the Plaintiff asserts. Specifically, the notice attempted to limit and obfuscate the rights available to the Plaintiff in a manner that creates a contradiction and would confuse the least sophisticated debtor into disregarding his or her rights pursuant to the validation notice required in the FDCPA. The Defendant's statements in this letter were a false, deceptive, or misleading representation or means in connection with the collection of the alleged debt because the statements were likely to confuse or otherwise mislead the least sophisticated debtor regarding the means by which he or she could dispute the debt, says the complaint. The Plaintiff is a natural person, who resides in the State of Utah. The Defendant is a Utah business entity doing business in Utah and located in Salt Lake City, Utah.[BN] The Plaintiff is represented by: Ryan L. McBride, Esq. KAZEROUNI LAW GROUP, APC 2633 E. Indian School Road, Suite 460 Phoenix, AZ 85016 Phone: (800) 400-6808 Facsimile: (800) 520-5523 Email: ryan@kazlg.com - and - Theron D. Morrison, Esq. MORRISON LAW GROUP 290 25th Street, Suite #102 Ogden, UT 84401 Phone: (801) 392-9324 Facsimile: (801) 337-2087 Email: theron@morlg.com J. JILL INC: Wu Alleges Violation under Disabilities Act -------------------------------------------------------- J. Jill, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kathy Wu, on behalf of herself and all other persons similarly situated, Plaintiff v. J. Jill, Inc., Defendant, Case No. 2:19-cv-06539 (E.D. N.Y., Nov. 19, 2019). J. Jill is an American retailer specializing in womenswear. [BN] The Plaintiff is represented by: Darryn G. Solotoff, Esq. 100 Quentin Roosevelt Boulevard, Ste 208 Garden City, NY 11530 Tel: (516) 695-0052 Fax: (516) 706-4692 Email: ds@lawsolo.net JABIL INC: Walker Case Removed to Northern District of California ----------------------------------------------------------------- The case captioned as KODY WALKER, individually, and on behalf of others similarly situated, Plaintiff v. JABIL, INC., a corporation; JABIL CIRCUIT, INC., an unknown entity; WOLFE ENGINEERING AND DESIGN, INC.; JABIL SILVER CREEK, INC., a corporation; and DOES 1 through 100, the Defendants, Case No. 19CV347835 (Filed May 21, 2019), was removed from the Superior Court of the State of California for the County of Santa Clara to the U.S. District Court for the Northern District of California on Nov. 1, 2019. The Northern District of California Court Clerk assigned Case No. 5:19-cv-07240 to the proceeding. The Plaintiff alleges that the Defendants failed to provide required meal periods and rest periods; failed to pay overtime wages; failed to pay minimum wages; failed to pay all wages due to discharged and quitting employees; and failed to maintain required records pursuant to the California Labor Code.[BN] The Defendants are represented by: Marlene S. Muraco, Esq. Michael W. M. Manoukian, Esq. LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor San Jose, CA 95113 2303 Telephone: 408 998 4150 Facsimile: 408 288 5686 E-mail: mmuraco@littler.com mmanoukian@littler.com JETSMARTER INC: Court Orders Arbitration in Galvez Case ------------------------------------------------------- The United States District Court for the Southern District of New York issued an Opinion and Order granting in part and denying in part Defendants' Motion to Dismiss Plaintiff's Complaint and to Compel Arbitration in the case captioned LEONARDO GALVEZ, Plaintiff, v. JETSMARTER, INC, BRENT HOLLENBACH, and JOHN DOES 1-4, Defendants, Case No. 18-CV-10311 (VSB) (S.D.N.Y.). Plaintiff Leonardo Galvez brings this breach of contract and fraud action against Defendants JetSmarter, Inc. (JetSmarter), JetSmarter Senior Membership Executive Brent Hollenbach, and John Does 1-4, officers and managers of JetSmarter, arising out of an agreement pursuant to which JetSmarter agreed to provide Plaintiff with certain travel-related services. Legal Standard The Federal Arbitration Act (FAA), requires courts to compel arbitration in accordance with the terms of an arbitration agreement, upon the motion of either party to the agreement, provided that there is no issue regarding its creation. A court must therefore first determine: (1) whether the parties entered into a valid agreement to arbitrate and (2) whether the dispute falls within the scope of the arbitration agreement. Defendants argue that because the JetSmarter Membership Agreement requires Plaintiff to arbitrate his claims, the Court should issue an order compelling Plaintiff to resolve the instant dispute through arbitration. In deciding whether the parties' dispute is arbitrable, the Court must answer two questions: (1) whether the parties agreed to arbitrate, and if so (2) whether the scope of that agreement encompasses the claims at issue. Agreement to Arbitrate Defendants have submitted extensive documentary evidence supporting the existence of a valid arbitration agreement between the parties. This evidence includes a declaration from JetSmarter's Chief Technology Officer, Mikhail Kirsanov, who is responsible for the development, implementation, and maintenance of the membership registration process of JetSmarter's software application. As Kirsanov explained, in order to sign up for JetSmarter online, a prospective member must accept the terms and conditions of the Membership Agreement before paying his membership fee. Plaintiff originally signed up for JetSmarter's services and Plaintiff's invoice, the date Plaintiff upgraded his JetSmarter membership, which both reflect that Plaintiff clicked the box indicating his acceptance of the terms and conditions of the JetSmarter Membership Agreement. Plaintiff's challenge to Defendants' evidence is unpersuasive. Plaintiff objects to Kirsanov's statement that because Plaintiff successfully paid his initial membership invoice, Plaintiff must have clicked on the toggle indicating his acceptance of the Membership Agreement; he argues that Kirsanov had no actual knowledge of whether Plaintiff in fact entered into the agreement. Defendants correctly point out that, as with any clickwrap consumer agreement the company does not sit next to the prospective member while they click the toggle button or check box on the computer screen"; yet, such agreements are nevertheless considered valid. Given Kirsanov's position as JetSmarter's Chief Technology Officer and the personal knowledge of JetSmarter's registration process that he developed while serving in that capacity, the Court finds Kirsanov's step-by-step description of the process reliable. Plaintiff has failed to meet that standard here. Plaintiff has also challenged the Membership Agreement's arbitration provision as both illusory and unconscionable. First, Plaintiff argues that the provision is not mutually enforceable, and is therefore illusory, because JetSmarter allegedly retains the right not to be bound by its obligations under the arbitration provision since the Membership Agreement permits JetSmarter to amend or modify the Agreement from time to time. Second, Plaintiff argues that the provision is unconscionable because the contract envisioned that Defendants would provide flight services to Plaintiff in exchange for prepayment of a significant membership fee; however, Defendants refused to provide the promised services yet retained Plaintiff's funds. The Court finds that the parties entered into a valid agreement to arbitrate. Scope Here, the arbitration provision expressly delegates the issue of arbitrability to an arbitrator; namely, it provides any claim or dispute whether related to this Agreement, any of the Terms and Conditions, or the relationship or rights or obligations contemplated herein, including the validity of this clause, shall be resolved exclusively by binding arbitration. The Court finds that this language provides clear and unmistakable evidence of the parties' agreement to arbitrate arbitrability and the Court therefore concludes that the issue of arbitrability is a matter for the arbitrator's review. Because the Court concludes that the arbitration provision is valid and that the scope of the provision is a question for the arbitrator, Defendants' motion to compel arbitration is granted. Defendants' motion to dismiss and to compel arbitration is GRANTED IN PART and DENIED IN PART. Defendants' motion to compel arbitration is GRANTED and the Court refers Plaintiff's claims to arbitration. However, Defendants' motion to dismiss is DENIED and the matter is STAYED pending the completion of arbitration, rules the Court. The parties are directed to submit a joint status letter 120 days from the date of this Opinion & Order, advising the Court as to the status of arbitration proceedings. The Clerk of Court is directed to terminate the motion pending at Document 9. A full-text copy of the District Court's September 30, 2019 Opinion and Order is available at https://tinyurl.com/yyclkuuj from Leagle.com. Leonardo Galvez, Plaintiff, represented by Bruce E. Baldinger , The Law Offices of Bruce E. Baldinger, LLC., 365 South St, Morristown, NJ 07960 Jetsmarter, Inc. & Brent Hollenbach, Defendants, represented by Ronald Andrew Giller , Gordon & Rees LLP, Catherine Bentivegna , Gordon & Rees, LLP & Daniel Jason Dimuro , Gordon & Rees LLP, 18 Columbia Tpke Ste 220, Florham Park, NJ 07932-2266 JOHNNY ROCKETS: Wu Alleges Violation under Disabilities Act ----------------------------------------------------------- The Johnny Rockets Group, Inc. is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kathy Wu, on behalf of herself and all other persons similarly situated, Plaintiff v. The Johnny Rockets Group, Inc., Defendant, Case No. 2:19-cv-06533 (E.D. N.Y., Nov. 19, 2019). The Johnny Rockets Group Inc. is an American restaurant franchise whose themed decor was based upon 1950s diner-style restaurants.[BN] The Plaintiff is represented by: Darryn G. Solotoff, Esq. 100 Quentin Roosevelt Boulevard, Ste 208 Garden City, NY 11530 Tel: (516) 695-0052 Fax: (516) 706-4692 Email: ds@lawsolo.net JOY ORGANICS: Olsen Suit Alleges ADA Violation ----------------------------------------------- Joy Organics LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Joy Organics LLC, Defendant, Case No. 1:19-cv-06546 (E.D. N.Y., Nov. 19, 2019). Joy Organics specializes in and provides premier broad spectrum CBD products.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170-1830 Tel: (212) 764-7171 Email: chris@lipskylowe.com KELLY M DAVIS: Jaffer Sues Over Illegal Debt Collection Practices ----------------------------------------------------------------- Shawn Jaffer, individually and on behalf of all others similarly situated v. Kelly M. Davis & Associates, LLC and John Does 1-25, Case No. 4:19-cv-00860-RWS (E.D. Tex., Nov. 21, 2019), seeks statutory and actual damages and declaratory relief for the Defendants' violations of the Fair Debt Collection Practices Act and the Texas Debt Collection Act. On November 20, 2019, KMDA sent a collection letter to the Plaintiff in the Eastern District of Texas. KMDA's Letter threatened the Plaintiff with legal arbitration action and demanding interests and attorney's fees. KMDA's Letter demanded payment from the Plaintiff of $19,192.67 within 10 days from the date of the letter, says the complaint. The Letter claimed the KMDA is a debt collector. However, the Plaintiff asserts that the Defendant does not have a surety bond for debt collection and has not filed a copy of such surety bond with the Texas Secretary of State. Plaintiff is a natural person allegedly obligated to pay a debt to the Defendant. KMDA is a "debt collector" with an address at Lewisville, Texas.[BN] The Plaintiff is represented by: Shawn Jaffer, Esq. SHAWN JAFFER LAW FIRM PLLC 9300 John Hickman Pkwy., Suite 1204 Frisco, TX 75035 Phone: (214) 210-0730 Fax: (214) 594-6100 Email: Shawn@jafflaw.com LABORATORY CORP: Covance Continues to Defend Mitchell Suit ---------------------------------------------------------- Laboratory Corporation of America Holdings said in its Form 10-Q Report filed with the Securities and Exchange Commission on October 31, 2019, for the quarterly period ended September 30, 2019, that Covance, Inc. continues to defend a class action suit entitled, Mitchell v. Covance, Inc. et al. On July 30, 2019, the Company was served with a class action lawsuit, Mitchell v. Covance, Inc. et al., filed in the United States District Court for the Eastern District of Pennsylvania. Plaintiff alleges that certain individuals employed by Covance Inc. and Chiltern International Inc. were misclassified as exempt employees under the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act and were thereby not properly paid overtime compensation. The lawsuit seeks monetary damages, liquidated damages, and recovery of attorneys' fees and costs. The Company will vigorously defend the lawsuit. No further updates were provided in the Company's SEC report. Laboratory Corporation of America Holdings operates as an independent clinical laboratory company worldwide. It operates through two segments, LabCorp Diagnostics and Covance Drug Development. The company was founded in 1971 and is headquartered in Burlington, North Carolina. LE LABO HOLDINGS: Wu Asserts Breach of Disabilities Act ------------------------------------------------------- Le Labo Holdings LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kathy Wu, on behalf of herself and all other persons similarly situated, Plaintiff v. Le Labo Holdings LLC, Defendant, Case No. 2:19-cv-06538 (E.D. N.Y., Nov. 19, 2019). Le Labo is a New York-based perfume house which has become iconic for its collection of hand-made perfumes and home scents available.[BN] The Plaintiff is represented by: Darryn G. Solotoff, Esq. 100 Quentin Roosevelt Boulevard, Ste 208 Garden City, NY 11530 Tel: (516) 695-0052 Fax: (516) 706-4692 Email: ds@lawsolo.net LEHMAN PROPERTY: Former Clients File Class Action ------------------------------------------------- Spotlight PA's Charlotte Keith and PennLive's Steve Marroni report that a class-action lawsuit has been filed against a Harrisburg property management company that abruptly closed over the summer, leaving more than 300 landlords in the lurch and thousands of dollars in collected rent and security deposits unaccounted for. Filed by 40 former clients of Glenn Lehman and Lehman Property Management, the suit also names as a defendant state Rep. Susan Helm, who founded Century 21 at Helm and served as the broker of record for Lehman. Lehman and Helm could not immediately be reached for comment on Oct. 21. Helm represents parts of Dauphin and Lebanon counties. In the suit filed in Dauphin County Court on Oct. 16, James Tupitza, the attorney representing Lehman's former clients, said he doesn't know what happened to his clients' money, and hopes to learn more about that through the legal proceedings. Tupitza said in court documents that former employees told him Lehman may have used the money to pay salaries for himself and family members, and to pay for personal expenses and travel. At the very least, he said, Lehman improperly managed his employees, allowing the money to disappear. "Since we haven't done discovery yet, we don't know what happened with the money," Tupitza said. The complaint accuses Lehman of fraud or, alternatively, negligent failure and accuses Helm of malpractice and failing in her duty as a broker of record to properly supervise Lehman. While 40 clients are named as plaintiffs, Tupitza expects between 150 and 300 will sign onto the class action. Most have money tied up with Lehman in amounts ranging from $7,500 to $10,000, but some are missing more than $100,000 each, Tupitza said. The money held in escrow included security deposits and rent payments that clients entrusted to Lehman, who was also expected to pay real estate taxes, utilities and other expenses on the properties it managed. The lawsuit says that in July, Lehman notified his clients that he discovered "accounting irregularities." At around that time, Helm resigned as the broker of record. With no broker of record, Lehman Property Management was forced to close. In August, Lehman gave a statement to CBS 21 news. "I discovered an error with the way some of our accounting is being done," Lehman explained to CBS 21. "I did not feel comfortable collecting any additional rent money or taking anymore money and putting it into the mix. As such, I stopped doing business immediately." The suit is seeking damages in the amount of the lost funds, along with punitive damages, interest and costs. The lawsuit also claims that both Lehman and Helm committed malpractice by deviating from the expected standards of care. The suit also says Lehman was negligent by failing to engage with his broker of record, despite being required to do so due to the hundreds of properties and amount of expenses the company handled. And the suit says Helm was negligent in her supervision of Lehman, claiming she had a duty under real estate standards that she ignored because she was busy as a state representative and in managing her own brokerage company. By ignoring her duty as the broker of record, she failed to prevent the theft or conversion of the funds, the suit claims. Tupitza recently prosecuted a case against Helm for failing to supervise Luu Le Dang, a former agent of Century 21 at Helm who was accused of scamming clients. That case resulted in a $1 million settlement after three days of trial, he said. Tupitza successfully prosecuted the case against Dang, too, resulting in a $3.8 million verdict in the expansive scam defrauding immigrant Vietnamese investors. [GN] LIFTED PERFORMANCE: Olsen Files Class Suit under ADA in New York ---------------------------------------------------------------- Lifted Performance, LLC is facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Thomas J. Olsen, individually and on behalf of all other persons similarly situated, Plaintiff v. Lifted Performance, LLC doing business as: Kanibi, Defendant, Case No. 1:19-cv-06549 (E.D. N.Y., Nov. 19, 2019). Kanibi CBD products are crafted with select batches of premium hemp and double-tested to ensure perfection.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170-1830 Tel: (212) 764-7171 Email: chris@lipskylowe.com LOUD BUDDHA: Fails to Properly Pay Cannabis Workers, Denning Says ----------------------------------------------------------------- Casey Denning and Natalia Cole, individually and on behalf of all others similarly situated v. LOUD BUDDHA, LLC, PURA CALI MANAGEMENT CORP., and DOES 1-50, jointly and severally, Case No. 3:19-cv-07665 (N.D. Cal., Nov. 21, 2019), arises from the Defendant's willful violations of the Fair Labor Standards Act, among other laws. The Plaintiffs and other cannabis workers were required to work a substantial amount of daily and weekly overtime, according to the complaint. The Defendants loosely tracked the Plaintiffs' and other cannabis workers' time by writing their hours on loose-leaf notebooks. However, the Plaintiffs allege, the hours were typically incorrect and rounded down to benefit the Defendants. The Defendants also failed to provide meal and rest breaks to the Plaintiffs and other cannabis workers as required by law, says the complaint. The Plaintiffs were employed by the Defendants to cultivate and harvest cannabis from Pura Cali's farm in Lake County, California. The Defendants are in the business of cultivating and harvesting cannabis for its eventual sale.[BN] The Plaintiffs are represented by: Trenton R. Kashima, Esq. Kevin J. Stoops, Esq. SOMMERS SCHWARTZ, P.C. 402 West Broadway, Suite 1760 San Diego, CA 92101 Phone: (619) 762-2125 Facsimile: (619) 762-2127 Email: tkashima@sommerspc.com - and - Jesse L. Young, Esq. KREIS ENDERLE, P.C. 8225 Moorsbridge P.O. Box 4010 Kalamazoo, MI 49003-4010 Phone: (269) 324-3000 Facsimile: (269) 324-3010 Email: jyoung@kehb.com LYFT INC: Gonzalez Sues Over Unpaid Minimum and Overtime Wages -------------------------------------------------------------- Renier Gonzalez, individually and on behalf of all others similarly situated v. LYFT, INC., Case No. 2:19-cv-20569 (D.N.J., Nov. 21, 2019), is seeking all available relief for unpaid minimum wages, unpaid overtime wages and unreimbursed business expenses pursuant to the Fair Labor Standards Act, the New Jersey Wage and Hour Law, and the New Jersey Wage and Hour Regulations. The Defendant violated the FLSA and the NJWHL by misclassifying the Plaintiff as an independent contractor and failing to pay its employees for all the hours worked at minimum wage after work-related expenses, by failing to pay them overtime wages and failing to reimburse their business-related expenses pursuant to the Defendant's company policy, says the complaint. The Plaintiff and the class are entitled to unpaid wages from the Defendant for all hours worked by them at minimum wage after payment of work-related expenses, as well as unpaid overtime wages for hours in excess of 40 hours worked per work week, the Plaintiff contends. The Plaintiff has worked as a driver engaged in interstate commerce for Lyft from October 2017 to the present. Lyft Technologies, Inc. is a transportation services company that provides drivers, who can be hailed and dispatched through a mobile phone application.[BN] The Plaintiff is represented by: Roosevelt N. Nesmith, Esq. LAW OFFICE OF ROOSEVELT N. NESMITH LLC 363 Bloomfield Avenue, Suite 2C Montclair, NJ 07042 Phone: (973) 259-6990 Fax: (866) 848-1368 Email: roosevelt@nesmithlaw.com MAC COSMETICS: Wu Asserts Breach of Disabilities Act ---------------------------------------------------- Make-Up Art Cosmetics Inc. facing a class action lawsuit filed pursuant to the Americans with Disabilities Act. The case is styled as Kathy Wu, on behalf of herself and all other persons similarly situated, Plaintiff v. Make-Up Art Cosmetics Inc., Defendant, Case No. 2:19-cv-06535 (E.D. N.Y., Nov. 19, 2019). MAC Cosmetics, stylized as M*A*C, is a cosmetics manufacturer founded in Toronto, Canada in 1984 by Frank Toskan and Frank Angelo. The company is headquartered in New York City and became part of the Estee Lauder Companies in 1996. MAC is an acronym for Make-up Art Cosmetics.[BN] The Plaintiff is represented by: Darryn G. Solotoff, Esq. 100 Quentin Roosevelt Boulevard, Ste 208 Garden City, NY 11530 Tel: (516) 695-0052 Fax: (516) 706-4692 Email: ds@lawsolo.net MARK HOTEL OWNERS: Nisbett Asserts Breach of Disabilities Act ------------------------------------------------------------- The Mark Hotel Owners 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. The Mark Hotel Owners Corp., Defendant, Case No. 1:19-cv-10688 (S.D. N.Y., Nov. 19, 2019). The Mark Hotel is a luxury hotel, situated at 25 East 77th Street, at Madison Avenue, on the Upper East Side of Manhattan, New York City. Originally constructed in 1927 in the Renaissance Revival style, the building was purchased by Izak Senbahar of Alexico Group and Simon Elias in 2006 and the building's interiors were reimagined by French designer Jacques Grange in 2009.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170-1830 Tel: (212) 764-7171 Email: chris@lipskylowe.com MARMARA MANHATTAN: Nisbett Alleges Violation under ADA in NY ------------------------------------------------------------ Marmara Manhattan Hospitality Management Co., Inc. 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. Marmara Manhattan Hospitality Management Co., Inc., Defendant, Case No. 1:19-cv-10687 (S.D. N.Y., Nov. 19, 2019). The Marmara-Manhattan has 108 suites in a 32-story, luxury residence in the culturally and historically rich neighborhood of New York.[BN] The Plaintiff is represented by: Christopher Howard Lowe, Esq. Lipsky Lowe LLP 420 Lexington Avenue, Suite 1830 New York, NY 10170-1830 Tel: (212) 764-7171 Email: chris@lipskylowe.com MCCARTHY, BURGESS: Lombardi Files FDCPA Suit in E.D. Pa. -------------------------------------------------------- A class action lawsuit has been filed against MCCARTHY, BURGESS & WOLFE. The case is styled as David Lombardi, on behalf of himself and all others similarly situated, Plaintiff v. MCCARTHY, BURGESS & WOLFE, JOHN DOES 1-25, Defendants, Case No. 2:19-cv-05434-MSG (E.D. Pa., Nov. 18, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. McCarthy, Burgess & Wolff, Inc. is a Collection Agency. This company provides commercial and consumer debt collection services.[BN] The Plaintiff is represented by: Ari H. Marcus, Esq. MARCUS & ZELMAN LLC 701 Cookman Ave-Ste 300 Asbury Park, NJ 07712 Phone: (732) 695-3282 Fax: (732) 298-6256 Email: ari@marcuszelman.com MEDICAL MANAGEMENT: Faces Mele Suit Alleging Violation of TCPA -------------------------------------------------------------- Michelle Mele, on behalf of herself and all others similarly situated v. Medical Management International, Inc. d/b/a/ Banfield Pet Hospital, Case No. 3:19-cv-06114 (W.D. Wash., Nov. 21, 2019), seeks damages resulting from the Defendant's illegal actions in calling the Plaintiff in violation of the Telephone Consumer Protection Act. According to the complaint, the Defendant operates an aggressive automated calling campaign. Moreover, it is the Defendant's stated policy to not stop placing automated calls to someone's telephone number after being told it is a 'wrong number.' Indeed, the Plaintiff says she is not a customer of the Defendant and never provided it with her cellular telephone number or with consent to call her number. Nonetheless, the Defendant proceeded to place repeated automated calls to the Plaintiff in an attempt to reach a separate individual, who cannot be reached at her number. The Defendant placed repeated automated calls to the Plaintiff's cellular phone--over her request for it to stop and notwithstanding that it was calling a wrong number--in violation of the TCPA, says the complaint. The Plaintiff is an adult individual residing in Arlington, Texas. Banfield operates more than 1,000 veterinarian hospital across the United States.[BN] The Plaintiff is represented by: Sarah Stasch, Esq. STASCH LAW LLC 33530 First Way South, Suite 102 Federal Way, WA 98003 Telephone: (253) 237-0539 - and - Sarah Stasch, Esq. LEMBERG LAW LLC 43 Danbury Road Wilton, CT 06897 Phone: (253) 237-0539 Facsimile: (253) 253-0701 Email: sstasch@lemberglaw.com MERITAGE HOMES: Faces Thomas Class Suit Alleging Mortgage Fraud --------------------------------------------------------------- ELIZABETH THOMAS, individually and on behalf of other similarly-situated persons as a class, Plaintiff v. MERITAGE HOMES CORPORATION; MTH LENDING GROUP LP; PRIMARY RESIDENTIAL MORTGAGE INC,; JP MORGAN CHASE AND COMPANY; JP MORGAN CHASE BANK NA; STEWART TITLE COMPANY; MERITAGE HOMES OF TEXAS LLC; MERITAGE HOMES OF TEXAS LP; NICOLE SMITH; Unknown KATHI LEWIS; and Unknown PATRICK IGLINSKY, Defendants, Case No. 1:19-cv-03186-ELH (D. Md., Nov. 1, 2019), alleges that the Defendants stole Ms. Thomas' personally identifying information, used that information without her knowledge to obtain residential mortgage loans in her name, and then stole the loaned money for themselves. According to the complaint, the Defendants literally forged closing documents, falsified verification of Ms. Thomas' employments, claiming she worked for a company she never worked for and claiming she made $92,500 per year despite knowing her household income was only $36,000. The Defendants submitted a falsified verification of employment with forged pay stubs accompanying it. Ms. Thomas alleges that the Defendants tricked her by holding a closing, and at that closing, instead of closing on her so-called extension of credit loan--a loan that is unlawful under the Texas Constitution and a loan never actually extended to her--the Defendants used closing date to forge closing documents on a Fannie Mae guaranteed loan, originated by JP Morgan Chase Bank. She contends this is a loan for which (1) she never knew anything about, and a loan for which (2) the Defendants used all proceeds for their own personal use. Engaging in mortgage fraud to dupe people, who have made numerous professional and personal sacrifices to become homeowners, is utterly despicable, the lawsuit says. Meritage Homes Corporation is an American real estate development company that constructs single-family detached homes across the United States along with active adult communities and luxury real estate in Arizona.[BN] The Plaintiff is represented by: John M. Shoreman, Esq. MCFADDEN & SHOREMAN, LLC 1050 Connecticut Avenue, NW, Suite 500 Washington, DC 20036 Telephone: 202-772-3188 Facsimile: 202-204-8610 E-mail: jmshoreman@verizon.net METAL TECHNOLOGIES: Attys' Fees & Costs Awards in Weil Suit Revised ------------------------------------------------------------------- In the case, BRIAN A. WEIL and MELISSA D. FULK, individually and on behalf of others similarly situated, Plaintiffs, v. METAL TECHNOLOGIES, INC., Defendant, Case No. 2:15-cv-00016-JMS-MPB (S.D. Ind.), Judge Jane Magnus-Stinson of the U.S. District Court for the Southern District of Indiana, Terre Haute Division, revised the Court's June 13, 2018 determination regarding attorneys' fees and costs. The relevant part of the Plaintiffs' action is the claim based on I.C. Section 22-2-6-2, which provides that an employee's wages can be deducted and assigned if such assignment is: (1) in writing; (2) signed by the employee; (3) by its terms, revocable by the employee at any time; and, (4) agreed to by the employer in writing. This statute also provides that a wage assignment may be made for certain purposes found in subsection (b) of the statute. As of July 1, 2015, one of the permissible uses for a wage deduction and assignment was the purchase of uniforms and equipment necessary to fulfill the duties of employment. The Plaintiffs filed the action seeking, among other things, damages for violation of I.C. Section 22-2-6-2. Specifically, Plaintiff Weil, individually, and the Plaintiff Class alleged that their employer, Metal Technologies, impermissibly made deductions from their wages to pay for the rental of uniforms. From Jan. 20, 2013 through April 10, 2016, Metal Technologies used a certain form for this wage assignment, and that form did not include the required language indicating that the wage assignment agreement was revocable by an employee at any time upon written notice to the employer. Metal Technologies conceded that this omission of the revocation language on the wage assignment form was a violation of I.C. Section 22-2-6-2, and the parties stipulated to the amount of damages to which Mr. Weil and the Plaintiff Class were entitled. The Court accepted the parties' stipulation, with a slight modification, finding that Metal Technologies owed the Plaintiff Class $31,039.96 for improper wage deductions. It then trebled those damages, by stipulation of the parties, making the total amount of damages owed to the Plaintiff Class for wage deductions $93,152.58. The parties also stipulated that Metal Technologies deducted a total of $43.10 from Mr. Weil's wages for uniform rental, and the Court trebled that amount and found that Mr. Weil was owed $129.30 in damages for the improper deduction of wages for uniform rental. After April 10, 2016, Metal Technologies amended the wage assignment form, adding the required revocation language. Using this amended form, Metal Technologies continued to deduct wages for uniform rental from employees that chose to rent their uniforms. Although the wage assignment form had been corrected, the Plaintiffs argued at trial that the wage deduction uniform rental was still unlawful because uniform rental was not one of the permissible uses listed in I.C. Section 22-2-6-2(b). Following a bench trial, the Court concluded that although "purchase" was listed as a permissible use in I.C. Section 22-2-6-2(b), "rental" was not listed. It disagreed with Metal Technologies' reading of the statute, reasoning that in ordinary usage, the terms purchase and rental are not used synonymously. It concluded that the wage deductions for uniform rental were in violation of the wage assignment statute, and it granted the Plaintiff Class $8,102.04 in damages for the deductions made using the revised wage assignment form, an amount that was stipulated to by the parties. On June 13, 2019, the Court awarded the Plaintiffs $99,229.58 in attorneys' fees for the wage deduction claims. The parties filed cross-appeals on several issues. After oral argument, on May 1, 2019, the Indiana legislature amended the statute to explicitly allow wage deductions for the rental of uniforms, and the legislature made this amendment retroactive. As of May 1, 2019, I.C. Section 22-2-6-2(b)(14) now provides: "A wage assignment under this section may be made for the purpose of paying for the purchase, rental, or use of uniforms, shirts, pants, or other job-related clothing." On May 29, 2019, the Seventh Circuit Court of Appeals entered its opinion affirming in part and vacating in part the Court's decision. It remanded the matter and instructed the Court to determine whether the May 1, 2019 amendment to Indiana Code Section 22-2-6-2(b) can be applied retroactively to the Plaintiff Class' wage-deduction claims; and, if so, whether the Court's June 13, 2018 determination regarding attorneys' fees and costs should be revised. Based on the Seventh Circuit's opinion, the Court ordered the parties to submit briefs on the issues of whether the amended law could be applied retroactively to the Plaintiff Class's wage-deduction claim and, if so, whether the Court's award of attorneys' fees and costs needed to be revised. In their opening brief on these issues, the Plaintiffs argue that the amendment to I.C. Section 22-2-6-2 cannot be applied retroactively because that would deprive them of their "legally vested right in their earned wages" and would violate the United States Constitution's and Indiana Constitution's prohibitions against ex post facto laws. In response, Metal Technologies argues that the limited purpose of the Seventh Circuit's remand was to determine if the amended statute could be applied retroactively in the case and, if so, whether the amount of attorneys' fees should be revised. In reply, the Plaintiffs argue that the wage assignment agreements were void as a matter of law because they violated public policy and the law as it existed at that time. Judge Magnus-Stinson finds that it is appropriate to give the amended statute the retroactive effect the legislature intended. The new law confirms that the amended wage assignment form signed by the employees was proper. Because the new law enforces -- not impairs -- the parties' contract, there is no constitutional takings issue. The deductions here were wholly voluntary; even the two named Plaintiffs demonstrate the fact: Mr. Weil rented his uniform, Ms. Fulk did not. Because the amendment to I.C. Section 22-2-6-2 can be applied retroactively in the case, the Judge finds that the attorneys' fee award should be reduced -- not increased as the Plaintiffs suggest. Although the Plaintiffs interpret the Seventh Circuit's remand and this Court's July 15, 2019 Order as broadly reopening the issue of attorneys' fees, the Seventh Circuit made it clear that the award of fees should only be revisited in the event the new law applies retroactively to the Plaintiffs' claims. The Judge declines to award additional fees to the Plaintiffs' counsel for continued, unnecessary litigation in the case. The Judge finds that the attorneys' fee award should be reduced based on the new law. It is fair to reduce the fee award by 8%, which is the percentage of the total damages that relate to deductions made based on the corrected wage assignment form (i.e., the deductions that the Indiana legislature confirmed were appropriate in its May 1, 2019 amendment to I.C. Section 22-2-6-2). She finds that the original attorneys' fee award of $116,098.61 should be reduced to $106,810.72. Based on the foregoing, Judge Magnus-Stinson amended the judgment in the case as follows to reflect that Metal Technologies will pay: (i) $93,152.58 to the Plaintiff Class, from which will be paid a $2,500 incentive award to lead Plaintiff Melissa Fulk; (ii) $194.61 to Mr. Weil; (iii) $128.97 to Ms. Fulk; and (iv) $106,810.72 as reasonable attorneys' fees. She declined to award costs to either party. An Amended Final Judgment will issue accordingly. A full-text copy of the Court's Nov. 6, 2019 Entry is available at https://is.gd/Q6sKyP from Leagle.com. BRIAN A. WEIL & MELISSA D. FULK, Plaintiffs, represented by Jacob H. Miller, HUNT HASSLER LORENZ KONDRAS LLP, Robert F. Hunt, HUNT HASSLER LORENZ & KONDRAS LLP & Robert Peter Kondras, Jr., HUNT HASSLER KONDRAS & MILLER LLP. METAL TECHNOLOGIES, INC., Defendant, represented by Melissa K. Taft -- Melissa.Taft@jacksonlewis.com -- JACKSON LEWIS P.C. & Michael W. Padgett -- PadgettM@jacksonlewis.com -- JACKSON LEWIS P.C. MIDLAND CREDIT: Henderson Files FDCPA Suit in Pa. ------------------------------------------------- A class action lawsuit has been filed against Midland Credit Management, Inc. The case is styled as Rrahqayya Henderson, individually, and on behalf of all other similarly situated consumers, Plaintiff v. Midland Credit Management, Inc., Defendant, Case No. 2:19-cv-05423-CFK (E.D. Penn., Nov. 19, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Act. Midland Credit Management, Inc. was founded in 1953. The company's line of business includes extending credit to business enterprises for relatively short periods.[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 MIDWEST PUBLISHING: Taylor Sues Over Unsolicited Telephone Calls ---------------------------------------------------------------- RAYMOND TAYLOR, Individually and On Behalf of All Others Similarly Situated, Plaintiff v. MIDWEST PUBLISHING INC. and MPI TELESERVICES INC., Defendants, Case No. 3:19-cv-02107-BEN-NLS (S.D. Cal., Nov. 2, 2019), alleges that the Defendant promotes and markets its merchandise, in part, by placing unsolicited telephone calls to wireless phone users, in violation of the Telephone Consumer Protection Act. According to the complaint, the Defendants are subsidiaries of one another and are ostensibly the same entity, under direction of the same corporate leadership. The Defendants are contracted by numerous nonprofit and charitable organizations (including California Narcotic Officers Association) to raise money on their behalf through various fundraising and telemarketing campaigns. There are online complaints about the Defendants' calling practices, including a complaint that the Defendants placed unsolicited pre-recorded calls even to people, who were on the National Do-Not-Call Registry. The Plaintiff seeks damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of the Defendants.[BN] The Plaintiff is represented by: Alex S. Madar, Esq. MADAR LAW CORPORATION 14410 Via Venezia No. 1404 San Diego, CA 92129-1666 Telephone: (858) 299-5879 Facsimile: (619) 354-7281 E-mail: alex@madarlaw.net MORAN FOODS: Sinclair Suit Challenges Illegal Time-Shaving Policy ----------------------------------------------------------------- BRITTANY SINCLAIR, individually and on behalf of all others similarly situated, Plaintiff v. MORAN FOODS, LLC, Defendant, Case No. 1:19-cv-02569 (N.D. Ohio, Nov. 1, 2019), alleges that the Defendant violated the Fair Labor Standards Act, the Ohio Minimum Fair Wage Standards Act and the Prompt Pay Act by regularly engaging in the practice of "time shaving," by which it would erase time worked from the Plaintiff's time records in order to pay her for fewer hours than she actually worked. Specifically, the Defendant would manually clock Ms. Sinclair out for a thirty-minute break each day, even if she had not actually taken a break, according to the complaint. The members of proposed class were subject to the same time-shaving policies. As a result of the Defendant's time-shaving policy, she was not paid minimum wage and overtime premium for all hours worked, the lawsuit says. From June 3, 2019 to present Ms. Sinclair worked for the Defendant. She works at the Save-a-Lot store located at 15870 Broadway Avenue, in Maple Heights, Ohio. She was hired as a cashier on June 3, 2019, and was promoted to shift lead on August 4, 2019. Moran, doing business as Save-A-Lot, Ltd., owns, operates, and licenses a chain of discount grocery stores, including the Maple Heights store.[BN] The Plaintiff is represented by: Claire I. Wade-Kilts, Esq. Sean H. Sobel, Esq. SOBEL, WADE & MAPLEY, LLC 2460 Fairmount Boulevard, Suite 314 Cleveland, OH 44106 Telephone: (216) 223-7213 Facsimile: (216) 223-7213 E-mail: wade@swmlawfirm.com sobel@swmlawfirm.com MOVIE GRILL CONCEPTS: Burns Files Suit in Ca. Super. Ct. -------------------------------------------------------- A class action lawsuit has been filed against Movie Grill Concepts XX, LLC. The case is styled as Latoya Burns, individually and on behalf of herself and all others similarly situated, Plaintiff v. Movie Grill Concepts XX, LLC, a Texas Limited Liability Company and Studio Movie Grill Holdings, LLC, a Texas Limited Liability Company, Defendants, Case No. BCV-19-103253 (Cal. Super Ct., Kern County, Nov. 19, 2019). The case type of the lawsuit is stated as CV Other Employment - Civil Unlimited. Movie Grill Concepts XX, LLC is as a Domestic Limited Liability Company (LLC) in the State of Texas.[BN] The Plaintiff is represented by: Christina M. Lucio Parker Legal Group, PC One American Plaza 600 West Broadway, Suite 700 San Diego, CA 92101- 7620 Tel: 619-930-9820 NATIONAL COLLEGIATE: Labiak Files PI Suit in S.D. Indiana --------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Richard Labiak, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-04595-SEB-TAB (S.D. Ind., Nov. 18, 2019). The nature of suit is stated as Other P.I. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com NATIONAL COLLEGIATE: Williams Files PI Suit in S.D. Indiana ----------------------------------------------------------- A class action lawsuit has been filed against National Collegiate Athletic Association. The case is styled as Jonathan Williams, individually and on behalf of all others similarly situated, Plaintiff v. National Collegiate Athletic Association, Defendant, Case No. 1:19-cv-04594-JRS-MPB (S.D. Ind., Nov. 18, 2019). The nature of suit is stated as Other P.I. The National Collegiate Athletic Association is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeffrey L. Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Phone: (713) 554-9099 Fax: (713) 554-9098 Email: jraizner@raiznerlaw.com OASIS POWER: February 11, 2020 Settlement Fairness Hearing Set -------------------------------------------------------------- A Settlement has been reached in a class action lawsuit, Albrecht v. Oasis Power, LLC d/b/a Oasis Energy, No. 18-cv-1061 (N.D. Ill. 2018), about whether Oasis Power, LLC d/b/a/ Oasis Energy incl. Censtar, Electricity Maine, Electricity N.H., Major Energy, Perigee, Provider Power Mass, Respond Power, Spark, and Verde (together, the "Oasis Entities") sent prerecorded voicemail messages to mobile telephone numbers without prior express written consent of the recipients in violation of the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227 ("TCPA"). Oasis denies the allegations and any wrongdoing. The Court has not decided who is right. Who's Included? Settlement Class Members include all individuals within the United States (i) who were sent a prerecorded message, also referred to a ringless voicemail, (ii) on his or her telephone (iii) by or on behalf of the Oasis Entities advertising the Oasis Entities' goods and services during the Class Period (February 12, 2014 through September 25, 2019). Excluded from the Settlement Class are the Oasis Entities and their affiliates, employees, officers, directors, agents, representatives and their immediate family members; class counsel and the judge and magistrate judge who have presided over the Action and their immediate family members. What does the Settlement provide? To fully settle and release claims of the Settlement Class Members, the Oasis Entities have agreed to make payments to the Settlement Class Members and pay for notice and administration costs of the Settlement, attorneys' fees and expenses incurred by counsel for the Settlement Class, and a service award for Plaintiff. Defendant will make available $7,000,000.00 (the "Settlement Fund"). Each Settlement Class Member who submits a timely, valid, correct and verified Claim Form by the Claim Deadline in the manner required by the Settlement Agreement shall be sent a Cash Award. What are the options of Settlement Class Members? Settlement Class Members have several options available to them as part of the Settlement. They can: * File a claim. Members of the Settlement Class must submit a completed Claim Form to receive a payment. Class Members may obtain a Claim Form at the Settlement Website, www.OasisEnergyTCPAsettlement.com, or by calling the Settlement Administrator toll-free at 1-855-939-0540. Claim Forms can be submitted by U.S. mail or through the Settlement Website, and must be postmarked by February 20, 2020. * Exclude themselves. Class Members who do not want benefits from the Settlement, and want to keep the right to sue or continue to sue the Oasis Entities on their own about the legal issues in this case, must exclude themselves from the Settlement. Class Members who exclude themselves cannot get money from this Settlement. To be excluded from the Settlement, Class Members must send a letter postmarked no later than December 7, 2019 to Oasis Energy TCPA Settlement Administrator, P.O. Box 4109, Portland, OR 97208-4109. * Object. Settlement Class Member who do not exclude themselves from the Settlement Class can object to any part of the Settlement. All objections must be postmarked by December 7, 2019. The detailed notice found at www.OasisEnergyTCPAsettlement.com further explains how to object. * Do nothing. Settlement Class members who do nothing, meaning they do not file a timely Claim, will not get benefits from the Settlement. Further, unless Class Members exclude themselves, they will be bound by the judgment entered by the Court. The Court has scheduled a Final Approval Hearing on February 11, 2020 to consider whether the Settlement is fair, reasonable, and adequate. The Court will also consider the requests by Class Counsel for attorneys' fees and expenses and for a Service Award to the Class Representative. Class Members do not need to attend the hearing but they or their own attorney, if they have one, may ask to appear and speak at the hearing at their own cost. Getting more information? This Notice summarizes the proposed Settlement. For a complete, definitive statement of the Settlement terms, refer to the Settlement Agreement at www.OasisEnergyTCPAsettlement.com. Class Members may also contact the Settlement Administrator by calling the toll-free number, 1-855-939-0540, or by sending questions to Oasis Energy TCPA Settlement Administrator, P.O. Box 4109, Portland, OR 97208-4109. [GN] OLIN CORP: Suits Against Unit over Sale of Caustic Soda Underway ---------------------------------------------------------------- Olin Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 1, 2019, for the quarterly period ended September 30, 2019, that Olin, K.A. Steel Chemicals continues to defend several class action suits related to the sale of caustic soda. Olin, K.A. Steel Chemicals (a wholly owned subsidiary of Olin) and other caustic soda producers were named as defendants in six purported class action civil lawsuits filed March 22, 25 and 26, 2019 and April 12, 2019 in the U.S. District Court for the Western District of New York on behalf of the respective named plaintiffs and a putative class comprised of all persons and entities who purchased caustic soda in the U.S. directly from one or more of the defendants, their parents, predecessors, subsidiaries or affiliates at any time between October 1, 2015 and the present. Olin, K.A. Steel Chemicals and other caustic soda producers were also named as defendants in two purported class action civil lawsuits filed July 25 and 29, 2019 in the U.S. District Court for the Western District of New York on behalf of the respective named plaintiffs and a putative class comprised of all persons and entities who purchased caustic soda in the U.S. indirectly from distributors at any time between October 1, 2015 and the present. The other defendants named in the lawsuits are Occidental Petroleum Corporation, Occidental Chemical Corporation d/b/a OxyChem, Westlake Chemical Corporation, Shin-Etsu Chemical Co., Ltd., Shintech Incorporated, Formosa Plastics Corporation, and Formosa Plastics Corporation, U.S.A. The lawsuits allege the defendants conspired to fix, raise, maintain and stabilize the price of caustic soda, restrict domestic (U.S.) supply of caustic soda and allocate caustic soda customers. Plaintiffs seek an unspecified amount of damages and injunctive relief. Olin said, "We believe we have meritorious legal positions and will continue to represent our interests vigorously in this matter. Any losses related to this matter are not currently estimable because of unresolved questions of fact and law, but if resolved unfavorably to Olin, could have a material adverse effect on our financial position, cash flows or results of operations." Olin Corporation, incorporated on August 13, 1892, is a manufacturer and distributor of chemical products, and ammunition. The Company operates through three segments: Chlor Alkali Products and Vinyls, Epoxy and Winchester. The company is based in Clayton Missouri. ORIGINS NATURAL: Camacho Files ADA Suit in E.D. New York -------------------------------------------------------- A class action lawsuit has been filed against Origins Natural Resources Inc. The case is styled as Jason Camacho and on behalf of all other persons similarly situated, Plaintiff v. Origins Natural Resources Inc., Defendant, Case No. 2:19-cv-06505 (E.D.N.Y., Nov. 18, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Origins Natural Resources Inc. engages in the manufacture of skin care, color, bath and body, lifestyle, and sensory therapy products.[BN] The Plaintiff is represented by: Darryn G Solotoff, Esq. Law Office of Darryn G Solotoff PLLC 100 Quentin Roosevelt Boulevard, Ste 280 Garden City, NY 11530 Phone: (516) 317-2453 Fax: (516) 706-4692 Email: ds@lawsolo.net P.C. RICHARD & SON: Camacho Files ADA Suit in E.D. New York ----------------------------------------------------------- A class action lawsuit has been filed against P.C. Richard & Son, LLC. The case is styled as Jason Camacho and on behalf of all other persons similarly situated, Plaintiff v. P.C. Richard & Son, LLC, Defendant, Case No. 2:19-cv-06504 (E.D.N.Y., Nov. 18, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. P.C. Richard & Son, commonly known as simply P.C. Richard, is the largest chain of private, family-owned appliance, television, electronics, and mattress stores in the United States.[BN] The Plaintiff is represented by: Darryn G Solotoff, Esq. Law Office of Darryn G Solotoff PLLC 100 Quentin Roosevelt Boulevard, Ste 280 Garden City, NY 11530 Phone: (516) 317-2453 Fax: (516) 706-4692 Email: ds@lawsolo.net PANDORA: Lower Court Asked to Reconsider Class Action Ruling ------------------------------------------------------------ Marsha Silva, writing for Digital Music News, reports that the U.S. Ninth Circuit Court of Appeals gave Pandora hope that it could escape a class action lawsuit filed against it relating to the streaming of music recorded prior to 1972. The Appeals Court did this by asking a lower court to reconsider the request by Pandora to throw out the lawsuit. In 2013, the Turtles' Flo & Eddie tried to get payment from both Pandora and SiriusXM for the digital and satellite performances of songs such as "Happy Together." However, because federal U.S. Copyright Law at that time did not cover music recorded prior to 1972, the two had to sue the companies in state courts. That triggered a patchwork of decisions, and a very lengthy and expensive legal war. And complicating the mess is that Pandora was acquired by SiriusXM in 2018 for roughly $3.5 billion. In 2014, a California court agreed that the recordings were protected by state law. In response, Pandora appealed to the U.S. District Court for the Central District of California, which rejected the company's bid to dismiss the case. At the same time, though, other state courts, such as in Florida and New York, ruled in favor of Pandora. This led the Ninth Circuit, which eventually received the case, to request clarification of California law from the state's Supreme Court. In the meantime, U.S. Congress in 2018 passed the Music Modernization Act (MMA), which -- while it gave federal copyright protection to songs recorded prior to 1972 -- also protected companies like Pandora against previous usage of songs as well as state-based claims as long as they pay royalties going back to 3 years before the law was passed. As Pandora has made this payment, the Ninth Circuit, which cannot directly consider the passage of the MMA in its ruling because it is considered new evidence, is instead asking the California district court to reconsider its decision in light of the passage of the MMA. Interestingly, this is the first time the MMA has been factored into this multi-state battle. "When faced with a determination of applying a new legal principle, a standard practice is to remand to the district court for a decision in the first instance," the Ninth Circuit stated. The ball now is in the district court's hands, and it looks like Pandora just may avoid the costly class action suit. [GN] PAPA JOHN'S: Court Sends No-Poach Class Action to Arbitration ------------------------------------------------------------- David McAfee, writing for Bloomberg Law, reports that Papa John's prevailed in its efforts to send to arbitration a combined proposed class action in Kentucky federal court challenging "no-poach" language in the pizzeria's franchise agreements. Papa John's successfully convinced Judge Joseph H. McKinley Jr. of the U.S. District Court for the Western District of Kentucky that claims by Jamiah Greer, a named plaintiff and former employee, were covered by the parties' arbitration agreement. The ruling comes more than six months after Papa John's sought to have the case dismissed or sent to arbitration. Mckinley Oct. 21 granted the pizza giant's motion to compel arbitration in the case. [GN] PARETEUM CORP: Rosen Law Reminds of Dec. 23 Lead Plaintiff Deadline ------------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, has filed a class action lawsuit on behalf of purchasers of the securities of Pareteum Corporation (NASDAQ: TEUM) from March 12, 2019 and October 21, 2019, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Pareteum investors under the federal securities laws. To join the Pareteum class action, go to http://www.rosenlegal.com/cases-register-1701.htmlor call Phillip Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or cases@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT UPON SERVING AS LEAD PLAINTIFF. According to the lawsuit, defendants throughout the Class Period made false and/or misleading statements and/or failed to disclose that: (1) Pareteum improperly and inaccurately recognized revenue for certain customer transactions; (2) Pareteum's financial statements for the fiscal year ending December 31, 2018 and quarters of ending March 31, 2019 and June 30, 2019 were false and could not be relied on; and (3) as a result, defendants' statements about its business, operations, and prospects, were materially false and misleading and/or lacked a reasonable basis at all relevant times. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than December 23, 2019. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-register-1701.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. of Rosen Law Firm toll free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or cases@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. Rosen Law Firm was Ranked No. 1 by ISS Securities Class Action Services for number of securities class action settlements in 2017. The firm has been ranked in the top 3 each year since 2013. Rosen Law Firm has secured hundreds of millions of dollars for investors. CONTACT: Laurence Rosen, Esq. Phillip Kim, Esq. The Rosen Law Firm, P.A. 275 Madison Avenue, 40thFloor New York, NY 10016 Tel: (212) 686-1060 Toll Free: (866) 767-3653 Fax: (212) 202-3827 lrosen@rosenlegal.com [GN] PAYMENTCLUB INC: Bid to Dismiss Amended Fabricant TCPA Suit Denied ------------------------------------------------------------------ In the case, TERRY FABRICANT, individually and on behalf of all others similarly situated, Plaintiff, v. PAYMENTCLUB INC., Defendant, Case No. 2:19-CV-02451-ODW-(ASx) (C.D. Cal.), Judge Otis D. Wright of the U.S. District Court for the Central District of California (i) granted the Plaintiff's motion for relief from Local Rule 23-3, which sets the deadline for moving for class certification; and (ii) denied the Defendant's motion to dismiss the First Amended Complaint ("FAC") for failing to state a claim. On April 1, 2019, Fabricant filed a complaint against Net Element Inc. for violation of the Telephone Consumer Protection Act ("TCPA") and willful or knowing violation of the TCPA. Thereafter, on May 3, 2019, Fabricant amended his complaint to name Defendant Paymentclub, which executed a Waiver of Service on May 9, 2019, resulting in a responsive pleading deadline of July 8, 2019. Fabricant alleges that Paymentclub uses automatic telephone dialing system ("ATDS") with the ability to store or produce telephone numbers to solicit business. He alleges on Jan. 22, 2019, he received a call from Paymentclub on his (818) mobile device without his consent. To identify the caller, Fabricant provided his email address to the sales representative and received an email from meesha@paymentclub.com. He asserts that the call was not necessitated by an emergency and his privacy was violated by the annoying, harassing nuisance. Fabricant seeks to represent a class of all persons to whom (a) the Defendant and/or a third party acting on the Defendant's behalf made one or more non-emergency telephone calls; (b) to a cellular telephone number; (c) through the use of an automatic telephone dialing system or an artificial or prerecorded voice; (d) at any time in the period that begins four years before the date of filing the original complaint in the case and ends at the date of trial. Fabricant filed his Motion for Relief on June 25, 2019, seeking relief from the Central District's Local Rule 23-3, which requires a plaintiff to move for class certification within 90 days of service of a pleading purporting to commence a class action other than an action subject to the Private Securities Litigation Reform Act of 1995. On July 10, 2019, the Defendant filed a motion to dismiss the FAC for failing to state a claim. Paymentclub filed its Opposition to the Plaintiff's Motion on July 15, 2019 claiming Fabricant provides no justification for his failure to comply with Local Rule 23-3. Fabricant's deadline to file a motion for class certification elapsed on Aug. 1, 2019, which is 90 days after Fabricant served Paymentclub with the FAC. He filed his Motion for Relief requesting an extension, over a month before the deadline, because he anticipated he would not have received sufficient discovery to file a robust motion for class certification. Fabricant notes that Paymentclub agreed to waiver of service on May 9, 2019 and was not required to file a responsive pleading until July 7, 2019. Although the Parties dispute whether Paymentclub agreed to an early Rule 26(f) conference, Fabricant projected that the 90-day deadline would not provide sufficient time for meaningful discovery and moved for relief well before the deadline. Accordingly, Judge Wright finds that Fabricant acted with diligence and timely filed his motion for relief, and finds good cause to grant relief from Local Rule 23-3. Paymentclub alleges that Fabricant failed to plead sufficient allegations to state a claim. Specifically, Fabricant failed to allege that the call was placed using an ATDS, without his consent, or for a non-emergency reason. Yet, Fabricant did in fact allege that recipients of these calls, including the Plaintiff, did not consent to receive them. Further, he alleges that Paymentclub uses an ATDS system, for example, when he received a phone call from Paymentclub no one answered at first but after a click he received a human response. Moreover, Fabricant alleges that he spoke to the sales representative who described the company was in payment solutions and pitched him on using their services. Thus, the Judge can surmise that the call was not regarding an emergency situation. Accordingly, from these allegations the Court can infer that Fabricant asserts a violation under the TCPA for use of an ATDS. Lastly, Paymentclub repeatedly asserts that Fabricant fails to state any factual support regarding any calls; however, on a motion to dismiss, the plaintiff need not prove his claim with evidentiary support. The Plaintiff sufficiently pleads a claim if he provides notice of the violation. Fabricant indicates the date he received the call and outlines the factual background of his claim with sufficient detail. Thus, Judge Wright finds Fabricant has sufficiently plead a claim and will deny Paymentclub's motion to dismiss. Based on the foregoing, Judge Wright (i) granted the Plaintiff's motion, and (ii) denied the Defendant's motion to dismiss. A full-text copy of the Court's Nov. 6, 2019 Order is available at https://is.gd/l66D3Z from Leagle.com. Terry Fabricant, individually and on behalf of all others similarly situated, Plaintiff, represented by Christopher J. Reichman -- admin@prato-reichman.com -- Prato and Reichman APC & Anthony I. Paronich -- anthony@paronichlaw.com -- Paronich Law PC, pro hac vice. PAYMENTCLUB INC., Defendant, represented by James Cannon Huber -- jhuber@attorneygl.com -- Global Legal Law Firm. PHH MORTGAGE: Cabral Suit Removed to Massachusetts District Court ----------------------------------------------------------------- The class action lawsuit styled as Thomas Cabral on behalf of himself and all others similarly situated, Plaintiff v. PHH Mortgage Corporation, Defendant, Case No. 1973CV00379, was removed from the Bristol Superior Court to the U.S. District Court for the District of Massachusetts (Boston) on Nov. 1, 2019. The District of Massachusetts Court Clerk assigned Case No. 1:19-cv-12245-DJC to the proceeding. The case is assigned to the Hon. Judge Denise J. Casper. The suit alleges violation of consumer credit-related laws. PHH Mortgage Corporation provides mortgage financing solutions.[BN] The Plaintiff is represented by: Sergei Lemberg, Esq. LEMBERG LAW, L.L.C. 43 Danbury Road Wilton, CT 06897 Telephone: (203) 653-2250 Facsimile: (203) 653-3424 E-mail: slemberg@lemberglaw.com The Defendant is represented by: Richard E. Briansky, Esq. ECKERT SEAMANS CHERIN & MELLOTT, LLC Two International Place, 16th Flr. Boston, MA 02110 Telephone: (617) 342-6824 Facsimile: (617) 342-6899 E-mail: rbriansky@eckertseamans.com PORTLAND GENERAL: Oregon App. Affirms Dismissal of Dreyer Suit -------------------------------------------------------------- In the cases, Phil DREYER, Plaintiff, and Frank GEARHART and Kafoury Bros., LLC, an Oregon limited liability corporation, Plaintiffs-Appellants, v. PORTLAND GENERAL ELECTRIC CO., Defendant-Respondent; Patricia MORGAN, Plaintiff-Appellant, v. PORTLAND GENERAL ELECTRIC CO., Defendant-Respondent, Case Nos. 03C10639, A161947 (Control), Nos. 03C10640, A161948 (Or. App.), Judge Roger J. DeHoog of the Court of Appeals of Oregon affirmed the general judgment of dismissal entered after the trial court denied the Plaintiffs leave to amend their complaint and granted the Defendant's motion for summary judgment. The case is the final installment in an extensive series of challenges arising out of the Public Utility Commission (PUC)'s approval of rates for PGE in Order No. 95-322 that erroneously included, as a component of those rates, a return on PGE's capital investment in the unused Trojan nuclear generating facility, which had been prematurely retired from service. The Plaintiffs challenged the order, and, in Citizens' Utility Board v. PUC, the Court remanded the order to the PUC for reconsideration. While PUC's reconsideration of Order No. 95-322 was pending, the Plaintiffs brought the action, alleging that the rates PGE had charged between April 1, 1995 and Oct. 1, 2000, pursuant to that order were unlawful and that PGE's collection of payments at those rates had caused them recoverable damages. The complaint alleged that: (1) PGE had violated ORS 757.355 (1993)2 by charging and receiving rates that included a return on PGE's investment in Trojan, rendering PGE liable for damages under ORS 756.185;3 (2) PGE had violated ORS 757.2254 by charging an amount for utility services not authorized by law; and (3) the Plaintiffs were entitled to damages, under the equitable theories of "money had and received" and unjust enrichment, for the component of PGE's charges that represented a return on its investment. The Plaintiffs sought damages in excess of $190 million, which they alleged PGE had charged "illegally" between April 1, 1995 and Oct. 1, 2000, due to its inclusion of a return on the Trojan investment in its rates. In a ruling issued Jan. 9, 2005, the trial court declined PGE's request to abate the action pending the PUC's reconsideration of its order. It also rejected PGE's motion to dismiss and motion for summary judgment, instead granting summary judgment to the Plaintiffs on their claims for money had and received and violation of ORS 757.355 (1993). PGE petitioned the Supreme Court for a writ of mandamus, seeking to compel the trial court to dismiss or abate the Plaintiffs' claims. The court issued a peremptory writ ordering the circuit court to abate the action, and the Plaintiffs' claims were held in abeyance. Following the Court's remand of Order No. 95-322, the PUC held further proceedings resulting in the issuance of PUC Order No. 08-487. In Order No. 08-487, the PUC determined what rates it would have approved had it correctly disallowed a return on PGE's investment in Trojan. The PUC determined that the resulting rates for April 1, 1995 to Oct. 1, 2000, would have been higher than the rates that PGE had actually charged to customers for that same period. Previously, PGE and the Plaintiffs had reached a settlement with respect to customers who had paid for utility services after Oct. 1, 2000. However, the PUC's reevaluation of the pre-October 2000 rates led it to conclude that the rates charged thereafter were too high and had resulted in an overpayment for services by those customers, not all of which had been accounted for through the settlement. After determining that it had the power to remedy that overpayment by ordering refunds, the PUC required PGE to issue refunds totaling $33.1 million plus interest to PGE's post-October 2000 customers. The PUC did not, however, require PGE to issue refunds to the Plaintiffs for the period of 1995 to 2000, due to its conclusion in Order No. 08-487 that the rates charged during that period had been just and reasonable and that there had therefore been no overpayments. The Court and the Supreme Court subsequently upheld PUC Order No. 08-487. With respect to the PUC's failure to issue refunds for the period of 1995 to 2000, the Supreme Court upheld the PUC's determination that PGE did not violate ORS 757.355 (1993) or ORS 757.225, and that the Plaintiffs did not overpay for utility services from 1995 to 2000 and therefore did not sustain any damages. In October 2015, while the summary judgment motion was under advisement, the Plaintiffs filed a motion seeking leave to amend their complaint to add allegations that PUC Order No. 95-322 was void ab initio, that the previous rate order (PUC Order No. 87-1017) was the lawful order that remained in effect, and that the Plaintiffs were entitled to damages based on the difference between the charges imposed under PUC Order No. 95-322 and the charges that would have been imposed under PUC Order No. 87-1017. On Feb. 22, 2016, the trial court issued an order denying the Plaintiffs' motion to amend the complaint. Five of the Plaintiffs' six assignments of error on appeal relate to the trial court's denial of leave to amend the complaint. The Plaintiffs advance various arguments as to how, in their view, the trial court abused its discretion. They do not, however, contend that the trial court should not have considered the nonexclusive Ramsey factors when exercising its discretion to allow an amendment. Nor, with the limited exceptions, do they suggest that the court relied on an erroneous interpretation of the law in exercising its discretion. With that understanding, and for the reasons that follow, DeHoog concludes that the trial court properly evaluated the Ramsey factors and did not abuse its discretion in denying the Plaintiffs' motion for leave to amend the complaint. Like the trial court, he specifically notes that the Plaintiffs' "void ab initio" argument, under which the factfinder would be required to compare the rates charged to the rates authorized under PUC Order No. 87-1017 was a wholly new theory that neither Plaintiffs' earlier claims nor the years of agency and judicial review had foreshadowed. And, whether or not, as the Plaintiffs suggest, the trial court's belief that they could have raised their new arguments earlier in the case was legally incorrect, that belief appears unlikely to have informed the trial court's ultimate rationale -- that allowing the proposed amendments at that late time would cause considerable prejudice to PGE. Given that the Plaintiffs fully litigated the Defendant's summary judgment motion and waited over two months after the court had taken that motion under advisement before filing their motion for leave to amend, the trial court reasonably could have concluded that the Plaintiffs' delay was wholly tactical and that the interests of justice weighed against their request. Similarly, the trial court did not, under the first Ramsey factor, err in characterizing the Plaintiffs' proposed attorney fee claim as "new," as they also contend. The Judge finds that the Plaintiffs' original complaint requested relief in the form of $190 million with prejudgment interest, and included a general request for costs and reasonable attorney fees. But the Plaintiffs did not identify a specific source for attorney fees. Additionally, in the litigation, the Plaintiffs did not prevail on any claim that would support an award of attorney fees. The attorney fees they now seek though their proposed amendments relate to benefits obtained through litigation of PGE's obligations to its post-2000 ratepayers, which did not inure to the benefit of any of them in the case. As a result, the trial court reasonably could view the Plaintiffs' attorney fee claims as both new and unrelated to the allegations of the existing complaint. Plaintiffs make various other arguments as to how the trial court abused its discretion in denying them leave to amend the complaint. Ultimately, however, whether the Judge considers them individually or collectively, none of those additional arguments persuade him that the court abused its discretion in ruling as it did, and, to the extent that he has not expressly identified every argument that the Plaintiffs make on that point, he rejects the balance of those arguments without further discussion. Finally, the Plaintiffs' sixth assignment of error challenges the trial court's ruling granting PGE's motion for summary judgment. They contend that the circuit court's ruling on Jan. 9, 2005, granting their motion for summary judgment on the claims for money had and received and violation of ORS 757.355, became "law of the case," and that the trial court therefore could not revisit the ruling. The Plaintiffs are mistaken. The Judge holds that the Jan. 9, 2005, order was superseded, first by the Supreme Court's opinion in Dreyer, abating the action pending the out-come of Gearhart, then by the Supreme Court's opinion in Gearhart upholding the PUC's order determining that the Plaintiffs have not been damaged, and, finally, by the circuit court's ruling, within its discretion, reconsidering the Jan. 9, 2005, order and instead granting PGE's motion for summary judgment. The trial court's decision to reconsider its prior ruling in light of subsequent case law was within the court's discretion and was not precluded by "law of the case." As an alternative to their law-of-the-case argument, the Plaintiffs argue the merits of PGE's motion for summary judgment, contending that the trial court erred in granting that motion because questions of fact remained as to what part of the rates that PGE had charged between 1995 and 2000 had been attributable to the disallowed return on its investment in Trojan. The Judge does not agree with the Plaintiffs' reading of Dreyer. He holds that the PUC's conclusion -- that the inclusion of the unlawful component did not cause the rates to be unjust or unreasonable and, therefore, has not resulted in any unrectified damages to ratepayers -- was consonant with the remands. The gist of the PUC's order, and the Court's and the Supreme Court's affirmance of that order, is that the Plaintiffs have not been injured. Therefore, as the trial court reasoned in its letter opinion, the Plaintiffs have no damages to recover. Thus, the Judge concludes that the trial court did not err in granting PGE's motion for summary judgment. Having concluded that the trial court did not err in the rulings to which the Plaintiffs have assigned error, Judge DeHoog affirmed the trial court's judgment. A full-text copy of the Court's Nov. 6, 2019 Order is available at https://is.gd/gGisao from Leagle.com. Linda K. Williams -- williams@kafourymcdougal.com -- Daniel W. Meek, and Phil Goldsmith filed the briefs for appellants. James N. Westwood -- james.westwood@stoel.com -- Stoel Rives LLP, Paul W. Conable, Alexander M. Tinker, and Tonkon Torp LLP filed the brief for respondent. PROSPECT CHARTERCARE: $4.5MM Settlement Gets Final Ct. Nod ---------------------------------------------------------- The United States District Court for the District of Rhode Island granted final approval of a settlement in the case captioned STEPHEN DEL SESTO, AS RECEIVER AND ADMINISTRATOR OF THE ST. JOSEPH HEALTH SERVICES OF RHODE ISLAND RETIREMENT PLAN, ET AL., Plaintiffs, v. PROSPECT CHARTERCARE, LLC, ET AL., Defendants, C.A. No. 18-328 WES. (D.R.I.). This action stems from alleged underfunding of a retirement plan for nurses and other hospital workers employed by SJHSRI. According to the amended complaint, the Plan, which has 2,729 participants, is insolvent. After the Plan was placed into receivership in 2017, the Receiver and several named participants, individually and on behalf of a purported class of plan participants, filed a twenty-three-count complaint in this Court against several defendants, alleging violations of the Employee Retirement Income Security Act (ERISA) for failure to meet minimum funding requirements and breach of fiduciary duty, as well as various state law claims. A number of defendants have agreed to settle with Plaintiffs, resulting in two separate settlement agreements. Under the settlement agreement between Plaintiffs and Defendants SJHSRI, RWH, CCCB, and CCF ("Settlement B"), the Receiver will be transferred $4.5 million for deposit into the Plan assets by CCF and its insurer. In exchange, Plaintiffs and Defendants SJHSRI, CCCB, and RWH will release CCF and the Rhode Island Foundation from liability. In addition, the Receiver will transfer to CCF any rights he holds in CCF. Non-Settling Defendants objected. On May 17, 2019, the Court preliminarily approved the settlement and directed the settling parties to give notice to the purported class. Plaintiffs and Settling Defendants now seek final approval of the settlement. One class member objects on the basis that the $4.5 million amount transferred to the Plan is insufficient. The Non-Settling Defendants also reiterate their objections to the settlement. In order to approve the settlement, the Court must first determine that it has jurisdiction over the dispute. A federal court has subject matter jurisdiction under 28 U.S.C. Section 1331 so long as the plaintiff's well-pleaded complaint exhibits, within its four corners, either an explicit federal cause of action or a state-law cause of action that contains an embedded question of federal law that is both substantial and disputed. Plaintiffs' complaint alleges four claims which arise under ERISA a federal statute. Final Approval Under Rule 23(e) A Court may approve a settlement in a class action only upon a finding that the settlement is fair, reasonable, and adequate. Some of the factors in this consideration include: (1) the complexity, expense and likely duration of the litigation (2) the reaction of the class to the settlement (3) the stage of the proceedings and the amount of discovery completed (4) the risks of establishing liability (5) the risks of establishing damages (6) the risks of maintaining the class action through the trial (7) the ability of the defendants to withstand a greater judgment (8) the range of reasonableness of the settlement fund in light of the best possible recovery and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. The Court finds that this settlement has been entered into in good faith and that its terms are fair, adequate, and reasonable. Without question, this case involves the determination of complex legal questions which would be costly and time-consuming to litigate through trial. Indeed, hundreds of pages of briefing have already been filed at this stage of the litigation. Furthermore, Plaintiffs have provided evidence demonstrating that hundreds of class members support the settlement. Only one member of the purported class of more than 2,700 members has objected on the basis that the amount of money to be transferred to the Receiver is only half of the money which should have gone into the Plan. However, as Plaintiffs have acknowledged, given the complexity of this case and lack of settled law with respect to the claims asserted against CCF, Plaintiffs are not without risk in proving liability should the case move forward. In light of that risk, the settlement amount appears to be reasonable. The Court finds that Settlement B is the product of good faith and is fair, reasonable, and adequate. Non-Settling Defendants' Objections The Non-Settling Defendants have objected to final approval of the settlement on several grounds. A number of these objections turn on an unsettled legal question regarding whether ERISA applies to the Plan or whether the Plan is exempt from ERISA as a church plan. The Court is satisfied that it need not address questions related to the applicability of ERISA in order to approve this settlement. Similarly, the Court need not determine the constitutionality or potential preemption of the Settlement Statute, and therefore expressly declines to rule on these issues at this time. The Court's approval of this settlement shall be without prejudice to the Non-Settling Defendants' right to assert these arguments later in this litigation or in future proceedings. Certification of Class, Class Representatives, and Class Counsel The Settling Parties also ask the Court to grant final certification of the class, class representatives, and class counsel under Rule 23. In order to meet the standard for class certification, the purported class must meet the requirements under Rule 23(a) and one of the categories of Rule 23(b). A class satisfies Rule 23(a) if (1) the class is so numerous that joinder of all members is impracticable (2) there are questions of law or fact common to the class (3) the class or defenses of the representative parties are typical of the claims or defenses of the class and (4) the representative parties will fairly and adequately protect the interests of the class. The Court outlined its reasons for finding these factors to have been met in the order granting preliminary approval of the settlement. The Court is satisfied that its analysis of these factors has not changed for purposes of final settlement approval. Additionally, the Non-Settling Defendants' objections do not relate to certification of the class, its representatives, or its counsel. Accordingly, for purposes of this settlement only, the Court certifies the following class: All participants of the St. Joseph Health Services of Rhode Island Retirement Plan, including all surviving former employees of St. Joseph Health Services of Rhode Island who are entitled to benefits under the Plan and all representatives and beneficiaries of deceased former employees of St. Joseph Health Services of Rhode Island who are entitled to benefits under the Plan. The Court appoints Gail J. Major, Nancy Zompa, Ralph Bryden, Dorothy Willner, Caroll Short, Donna Boutelle, and Eugenia Levesque as settlement class representatives and Wistow, Sheehan & Lovely, P.C. as class counsel. A full-text copy of the District Court's September 30, 2019 Memorandum of Decision is available at https://tinyurl.com/yxl36ddd from Leagle.com. Deming E. Sherman, Special Master, pro se. Stephen Del Sesto, as Receiver and Administrator of the St. Joseph Health Services of Rhode Island Retirement Plan, Gail J. Major, Nancy Zompa, Ralph Bryden, Dorothy Willner, Caroll Short, Donna Boutelle & Eugenia Levesque, Plaintiffs, represented by Benjamin G. Ledsham , Wistow, Sheehan & Loveley, PC, Stephen P. Sheehan , Wistow, Sheehan & Loveley, PC & Max Wistow , Wistow Sheehan & Loveley, 61 Weybosset Street, Providence, RI 02903-2824 Prospect CharterCARE, LLC, Prospect CharterCare SJHSRI, LLC & Prospect Chartercare RWMC, LLC, Defendants, represented by Joseph V. Cavanagh, III , Blish & Cavanagh LLP, Joseph V. Cavanagh, Jr. , Blish & Cavanagh, LLP, Commerce Center, 30 Exchange Terrace, Providence, RI 02903-1765, William Mark Russo , Ferrucci Russo P.C., 55 Pine Street, 4th Floor Providence, RI 02903, Christopher Joseph Fragomeni - cfragomeni@shslawfirm.com - SHECHTMAN HALPERIN SAVAGE, LLP & Dean J. Wagner - dwagner@shslawfirm.com - Shechtman Halperin Savage LLP. PROSPECTS DM: Faces Gunn Suit Over Autodialed Telemarketing Calls ----------------------------------------------------------------- William Gunn, Individually and on behalf of all others similarly situated v. PROSPECTS DM, LLC, ICOT HEARING SYSTEMS, LLC d/b/a LISTENCLEAR, ICOT HOLDINGS, LLC, JOHN DOE CORPORATIONS 1 THROUGH 10, and OTHER JOHN DOE ENTITES 1 THROUGH 10, all whose true names are unknown, Case No. 4:19-cv-03129 (E.D. Mo., Nov. 21, 2019), is brought against the Defendants for their violations of the Telephone Consumer Protection Act. The Defendants have placed autodialed telemarketing calls to the Plaintiff and class members' phones without prior express written consent, in violation of the TCPA, the Plaintiff alleges. These autodialed calls placed by the Defendants caused the Plaintiff and class members to suffer actual harm and legal injury. The Plaintiff has suffered aggravation, invasion of privacy, nuisance due to receiving such calls, says the complaint. William Gunn is a resident of the State of Missouri. PDM is a limited liability company organized in the state of California.[BN] The Plaintiff is represented by: Samantha J. Orlowski, Esq. Joel S. Halvorsen, Esq. HALVORSEN KLOTE 680 Craig Road, Suite 104 St. Louis, MO 63141 Phone: (314) 451-1314 Fax: (314) 787-4323 Email: sam@hklawstl.com joel@hklawstl.com PURDUE PHARMA: Stock Suit Moved From N.D. Okla. to N.D. Ohio ------------------------------------------------------------ The class action lawsuit styled as William Stock, Individually and on behalf of all others similarly situated, Plaintiff v. Purdue Pharma L.P.; Purdue Pharma Inc.; Purdue Frederick Company; Insys Therapeutics Inc.; Teva Pharmaceutical Industries Ltd.; Teva Pharmaceuticals USA, Inc.; Cephalon Inc.; Johnson & Johnson; Janssen Pharmaceuticals Inc.; Endo Health Solutions Inc.; Endo Pharmaceuticals Inc.; Actavis plc; Actavis Inc.; Watson Pharmaceuticals, Inc.; Watson Laboratories Inc.; McKesson Corporation; Cardinal Health Inc.; AmerisourceBergen Corporation, Defendants, Case No. 4:19-cv-00526, was transferred on Nov 1, 2019, from the U.S. District Court for the Northern District of Oklahoma to the U.S. District Court for the Northern District of Ohio (Cleveland). The Northern District of Ohio Court Clerk assigned Case No. 1:19-op-45927-DAP to the proceeding. The case is assigned to the Hon. Judge Dan Aaron Polster. The suit alleges violation of the Racketeer Influenced and Corrupt Organizations Act. The lawsuit seeks recompense for compensatory damages, emotional distress; loss of enjoyment of life; lost earning capacity and loss of income; loss of filial consortium; loss of spousal consortium; anguish; sorrow; solace, including companionship, comfort, guidance, kindly offices, advise, services, protection, care, and assistance; services for medical care, including any necessary rehabilitation; and/or funeral and burial expenses.[BN] The Plaintiff is represented by: Bradford D. Barron, Esq. Zachary T. Barron, Esq. BARRON LAW FIRM PLLC PO Box 369 Claremore, OK 74018 Telephone: (918) 341-8402 Facsimile: (918) 515-4691 E-mail: bbarron@barronlawfirmok.com zbarron@barronlawfirmok.com RISE CONSTRUCTION: Sanchez Seeks OT Pay for Construction Workers ---------------------------------------------------------------- JAVIER SANCHEZ, Individually and On Behalf of All Similarly Situated Persons, Plaintiff v. RISE CONSTRUCTION LLC, Defendant, Case No. 4:19-cv-04295 (S.D. Tex., Nov. 1, 2019), seeks to recover unpaid overtime under the Fair Labor Standards Act. According to the complaint, Rise Construction has a business plan that includes hiring hourly construction workers and misclassifying them as independent contractors. Rise does this in order to avoid paying social security and medicare taxes, unemployment premiums, workers compensation premiums, and overtime pay, and to gain an unfair advantage over competitors who follow the law in their employment practices. Mr. Sanchez is one of the many workers hired by Rise as an hourly construction worker "contractor." He worked for Rise from April 2018 until June 6, 2019, and his duties included sheet rock work and painting. During the time he worked for the Defendant, he regularly worked in excess of 40 hours per week, the lawsuit says.[BN] The Plaintiff is represented by: Josef F. Buenker, Esq. THE BUENKER LAW FIRM 2060 North Loop West, Suite 215 Houston, TX 77018 Telephone: 713 868-3388 Facsimile: 713 683-9940 E-mail: jbuenker@buenkerlaw.com ROCKWELL MEDICAL: Feb. 26 Settlement Fairness Hearing Set --------------------------------------------------------- Glancy Prongay & Murray LLP and Pomerantz LLP on Oct. 21 disclosed that the United States District Court for the Eastern District of New York has approved the following announcement of a proposed class action settlement that would benefit purchasers of securities of Rockwell Medical, Inc. (RMTI): SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT; (II) SETTLEMENT HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: all persons or entities that purchased or otherwise acquired Rockwell Common Stock or Rockwell Call Options, or sold Rockwell Put Options between November 8, 2017 and June 26, 2018, inclusive (the "Settlement Class Period") and were injured thereby (the "Settlement Class"): PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Eastern District of New York, that the above-captioned litigation (the "Action") has been certified as a class action on behalf of the Settlement Class, except for certain persons and entities who are excluded from the Settlement Class by definition as set forth in the full Notice of (I) Pendency of Class Action and Proposed Settlement; (II) Settlement Hearing; and (III) Motion for an Award of Attorneys' Fees and Reimbursement of Litigation Expenses (the "Notice"). YOU ARE ALSO NOTIFIED that Lead Plaintiffs in the Action have reached a proposed settlement of the Action for three million seven hundred thousand dollars ($3,700,000.00 USD) in cash (the "Settlement"), that, if approved, will resolve all claims in the Action. A hearing will be held on February 26, 2020 at 11:00 a.m., before the Honorable Allyne R. Ross at the United States District Court for the Eastern District of New York, Courtroom 2E, 225 Cadman Plaza East, Brooklyn, NY 11201, to determine (i) whether the proposed Settlement should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice against Defendants, and the Releases specified and described in the Stipulation and Agreement of Settlement dated August 6, 2019 (and in the Notice) should be granted; (iii) whether the proposed Plan of Allocation should be approved as fair and reasonable; and (iv) whether Co-Lead Counsel's application for an award of attorneys' fees and reimbursement of expenses should be approved. If you are a member of the Settlement Class, your rights will be affected by the pending Action and the Settlement, and you may be entitled to share in the Settlement Fund. The Notice and Proof of Claim and Release Form (the "Claim and Release Form"), can be downloaded from the website maintained by the Claims Administrator, www.RockwellSecuritiesSettlement.com. You may also obtain copies of the Notice and Claim and Release Form by contacting the Claims Administrator at Too v. Rockwell Medical, Inc., c/o Strategic Claims Services, 600 N. Jackson Street, Suite 205, Media, PA 19063, 866-274-4004. If you are a member of the Settlement Class, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim and Release Form to the Claims Administrator postmarked no later than February 7, 2020. If you are a Settlement Class Member and do not submit a proper Claim and Release Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you are a member of the Settlement Class and wish to exclude yourself from the Settlement Class, you must submit a request for exclusion such that it is received no later than February 5, 2020, in accordance with the instructions set forth in the Notice. If you properly exclude yourself from the Settlement Class, you will not be bound by any judgments or orders entered by the Court in the Action and you will not be eligible to share in the proceeds of the Settlement. Any objections to the proposed Settlement, the proposed Plan of Allocation, or Co-Lead Counsel's motion for attorneys' fees and reimbursement of expenses, must be filed with the Court and delivered to Co-Lead Counsel and Defendants' Counsel such that they are received no later than February 5, 2020, in accordance with the instructions set forth in the Notice. Please do not contact the Court, the Clerk's office, Defendants, or their counsel regarding this notice. All questions about this notice, the proposed Settlement, or your eligibility to participate in the Settlement should be directed to Co-Lead Counsel or the Claims Administrator. Inquiries, other than requests for the Notice and Claim and Release Form, should be made to Co-Lead Counsel: GLANCY PRONGAY & MURRAY LLP Casey E. Sadler, Esq. 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Email: settlements@glancylaw.com Or POMERANTZ LLP Jeremy A. Lieberman, Esq. 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 Email: jalieberman@pomlaw.com Requests for the Notice and Claim and Release Form should be made to: Too v. Rockwell Medical, Inc. c/o Strategic Claims Services 600 N. Jackson Street, Suite 205 Media, PA 19063 Telephone: (866) 274-4004 www.RockwellSecuritiesSettlement.com By Order of the Court [GN] ROTHMAN EVANS: Gonzalez Files Suit under FDCPA in New York ---------------------------------------------------------- A class action lawsuit has been filed against Rothman Evans, P.C. The case is styled as Brandon Gonzalez, individually and on behalf of all others similarly situated, Plaintiff v. Rothman Evans, P.C., Defendant, Case No. 1:19-cv-06525 (E.D. N.Y., Nov. 19, 2019). The docket of the case states the nature of suit as Consumer Credit filed pursuant to the Fair Debt Collection Practices Act. Rothman Evans, PC is a firm serving Syracuse, NY in Collections, Creditors Rights and Creditor Bankruptcy cases.[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 S&S SPRAYERS: Hernandez Files Class Suit in California ------------------------------------------------------ A class action lawsuit has been filed against S&S Sprayers, LLC. The case is styled as J. Santos Hernandez, individually and on behalf of all others similarly situated, Plaintiff v. S&S Sprayers, LLC, a California limited liability company, Defendant, Case No. BCV-19-103259 (Cal. Super Ct., Kern County, Nov. 19, 2019). The case type of the lawsuit is stated as CV Other Employment - Civil Unlimited. S&S SPRAYERS LLC is a freight Carrier that is authorized for property in the state of California.[BN] The Plaintiff is represented by: Martin E Sullivan, Esq. Melmed Law Group, P.C. 1180 S Beverly Dr, Ste 610 Los Angeles, CA 90035-1158 Tel: (310) 824-3828 Email: ms@melmedlaw.com SAFEWAY: Faces Class Action Over 1% Surcharge --------------------------------------------- Jared Cowley, writing for KGW8, reports that a class action lawsuit was filed on Oct. 21 against Safeway, accusing the grocery store corporation of charging customers a 1% fee to pay for a tax the city is charging large retailers to help pay for Portland's clean energy initiative. The tax, which began Jan. 1, 2019, applies to large retailers with gross income from retail sales of $1 billion or more in the U.S. and $500,000 in the City of Portland. This is the second class action lawsuit filed against a Portland business for passing on the city tax to customers. The first lawsuit was filed against AT&T over a 5-cent billing surcharge. "The surcharge was passed along to the customer to pay Safeway's obligation to help fund the Portland Clean Energy Initiative," said Portland attorney Michael Fuller, who is organizing both this class action lawsuit and the lawsuit against AT&T. [GN] SEMPRA ENERGY: Ninth Circuit Appeals Filed in Plumley Class Suit ---------------------------------------------------------------- The Plaintiffs filed an appeal from a court ruling entered in their lawsuit entitled Craig Plumley, et al. v. Sempra Energy, et al., Case No. 3:16-cv-00512-BEN-AGS, in the U.S. District Court for the Southern District of California, San Diego. The appellate case is captioned as Craig Plumley, et al. v. Sempra Energy, et al., Case No. 19-56216, in the United States Court of Appeals for the Ninth Circuit. As previously reported in the Class Action Reporter, the Plaintiffs sought Ninth Circuit review of a ruling issued in their lawsuit. That appellate case is styled as Craig Plumley, et al. v. Sempra Energy, et al., Case No. 19-55121. Sempra Energy is a publicly traded energy-services holding company whose operating units invest in, develop, and operate energy infrastructure, and provide gas and electricity services to customers in North and South America. Southern California Gas Company (SCG) is one of Sempra's operating units. SCG is a natural gas distribution utility and operates over 20,000 square miles throughout Central and Southern California. SCG's operation includes the storage of natural gas. It owns four natural gas storage facilities, the largest located at the Aliso Canyon, which contains approximately 115 underground wells. One of its well, the SS-25 had a gas leak. Sempra/SCG discovered the Aliso Canyon gas leak at the SS-25 well on or about October 23, 2015, when residents in the nearby Porter Ranch neighborhood reported what they believed to be a home with a major gas leak. Sempra/SCG did not immediately report the gas leak to the appropriate government agencies, but instead, SCG went door-to-door reassuring residents that all was under control and that no danger existed. Three days later, on October 26, 2015, Sempra/SCG reported the gas leak to the appropriate authorities. The gas leak persisted for months. On December 4, 2015, Sempra/SCG began constructing a relief well. On January 6, 2016, Governor Brown declared or made a proclamation of a state of emergency regarding the gas leak. The proclamation directed additional immediate actions to respond to the leak, and ordered a comprehensive independent review of the safety of the storage wells and the air quality of the surrounding community. The proclamation also charged SCG with payment of the costs related to the gas leak, as well as the funding of a program to mitigate the emissions. Sempra/SCG sealed the gas leak on February 18, 2016. Sempra and SCG have been jointly or separately named as defendants in at least 138 lawsuits related to the gas leak, including this lawsuit. The first amended complaint claims violations of Section 10(b) and 20(a) of the Exchange Act of 1934 and Securities and Exchange Commission (SEC) Rule 10b-5. The briefing schedule in the Appellate Case is set as follows: -- Transcript is due on December 17, 2019; -- Appellants Richard Berkowitz, Stephen Graham and Craig M. Plumley's opening brief is due on January 27, 2020; -- Appellees Dennis V. Arriola, Debra L. Reed, Sempra Energy and Southern California Gas Company's answering brief is due on February 26, 2020; and -- Appellant's optional reply brief is due 21 days after service of the answering brief.[BN] Plaintiffs-Appellants CRAIG M. PLUMLEY, STEPHEN GRAHAM and RICHARD BERKOWITZ, Individually and On Behalf of All Others Similarly Situated, are represented by: Adam M. Apton, Esq. Adam McCall, Esq. Nicholas I. Porritt, Esq. LEVI & KORSINSKY LLP 1101 30th Street NW, Suite 115 Washington, DC 20007 Telephone: (202) 524-4290 E-mail: AApton@zlk.com amccall@zlk.com nporritt@zlk.com - and - Jeremy Alan Lieberman, Esq. Jennifer Banner Sobers , Esq. Matthew L. Tuccillo, Esq. POMERANTZ LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 E-mail: jalieberman@pomlaw.com jbsobers@pomlaw.com mltuccillo@pomlaw.com - and - Jennifer Pafiti, Esq. POMERANTZ LLP 1100 Glendon Avenue, 15th Floor Los Angeles, CA 90024 Telephone: (310) 405-7190 E-mail: jpafiti@pomlaw.com Defendants-Appellees SEMPRA ENERGY and SOUTHERN CALIFORNIA GAS COMPANY are represented by: Robert Elliott Gooding, Jr., Esq. MORGAN, LEWIS & BOCKIUS LLP 600 Anton Boulevard, Suite 1800 Costa Mesa, CA 92626 Telephone: (714) 830-0600 E-mail: robert.gooding@morganlewis.com - and - Randall M. Levine, Esq. David Bruce Salmons, Esq. MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 739-3000 E-mail: randall.levine@morganlewis.com david.salmons@morganlewis.com - and - Thomas M. Peterson, Esq. MORGAN LEWIS & BOCKIUS LLP One Market Street Spear Street Tower San Francisco, CA 94105 Telephone: (415) 442-1000 E-mail: thomas.peterson@morganlewis.com - and - John Warren Rissier, Esq. MORGAN, LEWIS & BOCKIUS LLP 300 South Grand Avenue, 22nd Floor Los Angeles, CA 90071-3132 Telephone: (213) 612-2500 E-mail: warren.rissier@morganlewis.com Defendant-Appellee DEBRA L. REED is represented by: Jack P. DiCanio, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP 525 University Avenue Palo Alto, CA 94301 Telephone: (650) 470-4500 E-mail: jack.dicanio@skadden.com - and - Allen Louis Lanstra, Jr., Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 300 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 687-5513 E-mail: allen.lanstra@skadden.com Defendant-Appellee DENNIS V. ARRIOLA is represented by: Matthew W. Close, Esq. O'MELVENY & MYERS LLP 400 South Hope Street, 18th Floor Los Angeles, CA 90071 Telephone: (213) 430-6000 E-mail: mclose@omm.com SETERUS INC: Court Narrows Claims in Heinitz Class Action --------------------------------------------------------- The United States District Court for the Northern District of New York issued a Memorandum Decision and Order granting in part and denying in part Defendants' Motion to Dismiss in the case captioned ROBERT J. HEINITZ, et. al., on Behalf of Themselves and Others Similarly Situated, Plaintiffs, v. SETERUS, INC., Defendant, Case No. 1:18-CV-1076(LEK/ATB) (N.D.N.Y.). Plaintiffs filed this class action complaint against Seterus, Inc. on behalf of themselves and all others similarly situated. Plaintiffs assert two causes of action: violation of the Fair Debt Collection Practices Act (FDCPA) and violation of New York General Business Law Section 349 (GBL Section 349). Plaintiffs claim that Defendant send letters (New York Final Letters) informing homeowners that they are in default on their mortgages and falsely stating that unless the homeowners make full payment, Defendants will accelerate their loans and commence foreclosure proceedings. In reality, Plaintiffs allege, Defendants do not take this action if the homeowners bring their loans less than forty-five days delinquent. Defendant filed a motion to dismiss under rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. LEGAL STANDARD In reviewing a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to plaintiffs. Federal Rule of Civil Procedure 12(b)(6) requires that a complaint be dismissed if it ails to state a claim on which relief may be granted. To state a valid claim, a complaint must allege enough facts to state a claim for relief that is plausible on its face. Standing Defendant argues that Plaintiffs lack Article III standing to maintain a claim because: (1) Plaintiffs have not alleged a particularized and concrete injury and (2) Plaintiffs have not alleged an injury traceable to Defendant. The Court disagrees and finds that Plaintiffs have standing. The irreducible constitutional minimum of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Defendants suggest that Plaintiffs do not allege a concrete and particularized injury because they merely allege a bare procedural violation of the FDCPA. The Second Circuit has repeatedly held that FDCPA violations protect concrete interests. There can be no dispute that Sections 1692e and g of the FDCPA protect an individual's concrete interests. The purpose of the FDCPA is, among other things, to protect debtors from abusive debt collection practices by debt collectors. Defendant's argument that Plaintiffs failed to allege an injury fairly traceable to Defendant is also misguided. Defendant argues that Plaintiffs' alleged injury of "anxiety" about the New York Final Letter is not traceable to Defendant's conduct because that anxiety arises more from the fact that they are default than from the letter. But the fact that Plaintiffs may also have anxiety about their default does not mean Plaintiffs do not also have anxiety about the allegedly empty threat that their loan would be accelerated unless they made a full payment. Thus, the Court finds that Plaintiffs have standing. Fair Debt Collection Practices Act Plaintiffs allege that Defendant violated 15 U.S.C. Section 1692e and Section 1692f. Plaintiffs specifically allege violations of Section 1692e(5) and (10). These sections state: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt , the following conduct is a violation of this section: (5) The threat to take any action that cannot legally be taken or that is not intended to be taken (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. Here, Plaintiffs allege misstatements that would mislead the least sophisticated consumer. Plaintiffs allege, among other things, that the New York Final Letters cause the least sophisticated consumers to believe that they will lose their homes if all arrearages to Seterus are not paid by the stated expiration date; which is not true. They also allege New York Final Letters have the potential of causing individuals to send additional money to Seterus that, absent the false and misleading statements, they could have utilized on other necessary expenditures, including food and utility payments and that the misleading threats of acceleration and foreclosure make it impossible for the least sophisticated consumer to make a rational decision in response to the New York Final Letter because it threatens immediate, irreversible consequences. Defendant argues that it is simply providing Plaintiffs a grace period and that debt collectors do not violate the FDCPA by giving debtors more rights. This is, to put it mildly, unconvincing. Plaintiffs' allegation is not that Defendants are failing to enforce all their rights. Plaintiffs' allegation is that Defendants are threatening action they do not intend to take. Defendant's unabashed attempt to characterize this as an act of generosity ignores the 30(b)(6) testimony stating that it is in Defendant's best interest not to foreclose on customers because our objective is to collect that payment. Thus, the allegation is not that Defendant kindly offers a grace period. The allegation is that Defendant threatens serious action in an attempt to induce frightened debtors into making a payment, but does not actually intend to follow through on that action because it is not in Defendant's business interest. This is the sort of misstatement that falls clearly under Swection 1692e. Defendants have also submitted to the Court two cases in which similar FDCPA claims against the same Defendant were dismissed by other district courts. But Defendants fail to acknowledge that neither of these cases were dismissed on the merits of the FDCPA claim. It also fails to give approximate dates as to when these letter were received, or the amount owed. Instead, it relies on and recites snippets of a letter sent to a borrower in North Carolina and alleges her letters were similar. Here, in contrast, Plaintiffs rely on a letter sent to the New York Plaintiffs. Defendant's argument that Section 1692e(5) is inapplicable because it only applies to threat of litigation is also unconvincing. It is true that the language of the communication, taken as a whole, must leave the least sophisticated reader with the impression that some type of legal action has already been or is about to be initiated and can be averted from running its course only by payment. Thus, Plaintiffs have alleged a violation of Section 1692(e). New York General Business Law Section 349 Under GBL Section 349 deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful. To state a claim for a Section 349 violation, a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice. Here, Plaintiffs have satisfied the first two elements. First, Defendant does not appear to dispute that Defendant engaged in consumer-oriented conduct, as the alleged conduct has a broad impact on consumers at large and was not a private contract dispute unique to the parties. Second, as discussed in the FDCPA context, the notice was materially misleading. But Plaintiffs have not adequately alleged that they suffered an injury. Under GBL Section 349, plaintiffs must allege harm, though it does not need to be pecuniary. While Plaintiffs allege several potential injuries to the broader class, they have alleged no specific injury to themselves. In defending this omission in their response, Plaintiffs are only able to muster the conclusory assertion that Plaintiffs' Complaint stated Seterus wrongful and deceptive acts have caused injury and damages to Plaintiffs and class members and unless enjoined, will cause further irreparable injury.' Plaintiffs may be correct that Defendant's threat to Plaintiffs' shelter and creation of Plaintiffs' anxiety can most certainly be classified as an emotional injury but Plaintiffs have not directly alleged that they suffered such an injury. While Plaintiffs' allegations may be sufficient to obtain standing and assert an FDCPA claim, they fail to state a claim under GBL Section 349. Thus, Plaintiffs' GBL Section 349 must be dismissed with leave to replead specific allegations of injury. Accordingly, the Court rules that Defendant's Motion to Dismiss is GRANTED as to Plaintiffs' GBL Section 349 claims. Plaintiffs' GBL Section 349 claims are dismissed with leave to amend. The Defendants' Motion to Dismiss is DENIED as to Plaintiff's Fair Debt Collection Practices Act claims. The Court ordered the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with Local Rules. A full-text copy of the District Court's September 30, 2019 Memorandum Decision and Order is available at https://tinyurl.com/y5xse5c5 from Leagle.com. Robert J. Heinitz, on behalf of himself and others similarly situated & Sandra L. Heinitz, on behalf of herself and others similarly situated, Plaintiffs, represented by Elmer R. Keach, III , Law Offices of Elmer Robert Keach, III, P.C.,1 Pine West Plaza | Suite 109 | Albany, NY 12205 & Scott C. Harris - scott@wbmllp.com - Whitfield, Bryson Law Firm. Seterus, Inc., Defendant, represented by Philip A. Goldstein - pagoldstein@mcguirewoods.com - McGuireWoods LLP. SHIRE US: Review of Class Cert. Bid Order in Antitrust Suit Denied ------------------------------------------------------------------ In In re INTUNIV ANTITRUST LITIGATION (Indirect Purchasers), Civil Action No. 1:16-cv-12396-ADB (D. Mass.), Judge Allison D. Burroughs of the U.S. District Court for the District of Massachusetts denied the Indirect Purchaser Plaintiffs ("IPPs")'s motion for reconsideration of the Court's Aug. 21, 2019, Order that denied their motion for class certification. The IPPs moved for certification of two classes of consumers who they claim were overcharged for Intuniv because of an allegedly anticompetitive settlement agreement between Defendants Shire and Actavis. Those proposed classes included: a. The Nationwide Consumer Class: For the period beginning Nov. 15, 2012, to the present: (A) all persons who purchased brand or generic Intuniv in the United States for personal or household use, and who paid the purchase price themselves; and (B) all persons covered by commercial health insurance who purchased brand Intuniv in the United States for personal or household use, and who paid some of the purchase price pursuant to a co-payment or co-insurance provision. b. Illinois Brick Repealer Class: For the period beginning Nov. 15, 2012, to the present, all persons in Arizona, California, Florida, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, West Virginia, Wisconsin, and the District of Columbia: (A) who paid the purchase price themselves for brand or generic Intuniv in the United States for personal or household use; and (B) all persons covered by commercial health insurance who purchased brand Intuniv in the United States for personal or household use, and who paid some of the purchase price pursuant to a co-payment or co-insurance provision. The Court determined that the IPPs had not provided a workable plan to exclude a large number of uninjured class members, including roughly 25,000 brand loyalists, several thousand coupon-using class members, and a de minimis number of potential class members who purchased Intuniv only after reaching their out-of-pocket maximums. It therefore refused to certify either of the two proposed classes. The IPPs moved for reconsideration on Sept. 4, 2019, arguing that the Court should have certified one subclass of the potential Plaintiffs consisting of consumers who bought brand Intuniv or generic Guanfacine ER with cash or co-insurance. The Defendants responded on Sept. 18, 2019. On Sept. 26, 2019, the IPPs requested leave to file a reply brief, which the Defendants opposed. The Court granted the motion, and the IPPs filed their reply on Oct. 21, 2019. On Sept. 6, 2019, the IPPs filed a petition for an interlocutory appeal with the First Circuit. The Defendants responded on Sept. 16, 2019, and the IPPs replied on Sept. 24, 2019. The IPPs allege that the Court misunderstood their proposed class. They claim that they previously proposed three groups of consumers for class certification: (1) consumers who purchased brand Intuniv with a co-pay; (2) consumers who purchased brand Intuniv with co-insurance; and (3) consumers who purchased brand or generic Intuniv with cash. They argue that if the Court was concerned about including the unharmed Plaintiffs, it should only have refused to certify the first group and narrowed the class, instead of denying class certification. Judge Burroughs declines to modify the Court's denial of class certification. First, the Court did not misunderstand the parties, as the IPPs have not previously proposed a class of consumers who purchased brand Intuniv with co-insurance or cash. Second, the IPPs have failed to demonstrate that the named plaintiffs would be adequate representatives of the newly proposed class. Finally, the narrower class would still include the uninjured class members that concerned the Court when it denied the motion for class certification. The Judge concludes that the IPPs previously failed to request that the Court consider a class of consumers who purchased Intuniv out-of-pocket or with co-insurance. On reconsideration, the IPPs have failed to demonstrate that the named Plaintiffs would be included in the potential class and that the class would not include a large number of uninjured consumers. Accordingly, she denied the IPPs' motion for reconsideration. A full-text copy of the Court's Nov. 6, 2019 Memorandum & Order is available at https://is.gd/OWmeRp from Leagle.com. Sherri Cummisford, Consolidated Plaintiff, represented by Allan Kanner -- a.kanner@kanner-law.com -- Allan Kanner & Associates, pro hac vice, Conlee S. Whiteley -- c.whiteley@kanner-law.com -- Kanner & Whiteley, LLC, pro hac vice, Denise L. Morris, Ademi & O'Reilly LLP, John D. Blythin, Ademi & O'Reilly LLP, Layne Hilton -- l.hilton@kanner-law.com -- Kanner & Whiteley, LLC, pro hac vice, Mark A. Eldridge, Ademi & O'Reilly LLP, Ruben Honik -- rhonik@golombhonik.com -- Golomb & Honikl, P.C., pro hac vice & Shpetim Ademi, Ademi & O'Reilly. Carmen Richard, Consolidated Plaintiff, represented by Allan Kanner, Allan Kanner & Associates, pro hac vice, Bradley Winston, Winston Law Firm, Conlee S. Whiteley, Kanner & Whiteley, LLC, pro hac vice, David J. Stanoch, Golomb & Honik, P.C., pro hac vice, Layne Hilton, Kanner & Whiteley, LLC, pro hac vice & Ruben Honik, Golomb & Honikl, P.C., pro hac vice. Tina Picone, Plaintiff, represented by Allan Kanner, Allan Kanner & Associates, pro hac vice, Annemieke A. Tennis, Kanner & Whiteley, LLC, pro hac vice, Conlee S. Whiteley, Kanner & Whiteley, LLC, pro hac vice, David J. Stanoch, Golomb & Honik, P.C., pro hac vice, Layne Hilton, Kanner & Whiteley, LLC, pro hac vice, Ruben Honik, Golomb & Honikl, P.C., pro hac vice & Stephen Herbert Galebach, Galebach Law Office. Shire U.S. Inc. & Shire LLC, Defendants, represented by David S. Shotlander, Frommer Lawrence & Haug LLLP, pro hac vice, David A. Zwally -- dzwally@haugpartners.com -- Haug Partners LLLP, pro hac vice, Michael F. Brockmeyer , Frommer Lawrence & Haug LLP, pro hac vice, Nicholas F. Giove -- ngiove@haugpartners.com -- Haug Partners LLP, pro hac vice, Fred A. Kelly, Jr., Haug Partners, Joshua S. Barlow -- jbarlow@haugpartners.com -- Haug Partners LLP & Tarae L. Howell -- thowell@nixonpeabody.com -- Nixon & Peabody, LLP. Actavis Elizabeth LLC & Actavis Holdco U.S., Inc., Defendants, represented by Aviv A. Zalcenstein, Goodwin Procter LLP, pro hac vice, Alicia Rubio-Spring, Goodwin Procter LLP, Christopher T. Holding, Goodwin Procter, LLP, Sarah K. Frederick, Goodwin Procter LLP & Srikanth K. Reddy, Goodwin Procter, LLP. Actavis Inc., Defendant, represented by Aviv A. Zalcenstein, Goodwin Procter LLP, pro hac vice & Christopher T. Holding, Goodwin Procter, LLP. Teva Pharmaceuticals USA, Inc., Intervenor, represented by Christopher T. Holding, Goodwin Procter, LLP. SPECTRA ENERGY: Morris Appeals Dismissal of Suit to Del. Sup. Ct. ----------------------------------------------------------------- Plaintiff Paul Morris filed an appeal from a Memorandum Opinion dated September 30, 2019, and Order dated October 25, 2019, entered in the lawsuit styled PAUL MORRIS, on behalf of all similarly situated former unitholders of SPECTRA ENERGY PARTNERS, L.P., v. SPECTRA ENERGY PARTNERS (DE) GP, LP, Case No. 2019-0097-SG, in the Court of Chancery of the State of Delaware. As previously reported in the Class Action Reporter on Oct 14, 2019, the Court of Chancery of Delaware issued an Opinion on September 30 granting the Defendant's Motion to Dismiss the case. 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 appellate case is captioned as PAUL MORRIS, on behalf of all similarly situated former unitholders of SPECTRA ENERGY PARTNERS, L.P., Plaintiff-Appellant v. SPECTRA ENERGY PARTNERS (DE) GP, LP, Defendant-Appellee, Case No. 2019-0097-SG, in the Delaware Supreme Court.[BN] The Plaintiff-Appellant is represented by: Michael J. Barry, Esq. Viola Vetter, Esq. Rebecca A. Musarra, Esq. GRANT & EISENHOFER P.A. 123 S Justison St. Wilmington, DE 19801 Telephone: (302) 622-7000 Facsimile: (302) 622-7100 E-mail: mbarry@gelaw.com vvetter@gelaw.com rmusarra@gelaw.com - and - Peter B. Andrews, Esq. Craig J. Springer, Esq. ANDREWS & SPRINGER LLC 3801 Kennett Pike Building C, Suite 305 Wilmington, DE 19807 E-mail: pandrews@andrewsspringer.com cspringer@andrewsspringer.com - and - Jeremy Friedman, Esq. Spencer Oster, Esq. David Tejtel, Esq. FRIEDMAN OSTER & TEJTEL PLLC 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 Telephone: (888) 529-1108 E-mail: jfriedman@ljbpc.com soster@fotpllc.com dtejtel@fotpllc.com The Defendant-Appellee is represented by: Robert S. Saunders, Esq. Ronald N. Brown, III, Esq. Ryan M. Lindsay, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP One Rodney Square P.O. Box 636 Wilmington, DE 19899-0636 E-mail: rob.saunders@skadden.com ron.brown@skadden.com ryan.lindsay@skadden.com - and - Noelle M. Reed, Esq. Daniel S. Mayerfeld, Esq. Alston L. Walker, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1000 Louisiana Street, Suite 6800 Houston, TX 77002 Telephone: (713) 655-5100 E-mail: noelle.reed@skadden.com daniel.mayerfeld@skadden.com STANDARD FIRE: Court Nixes Class Allegations in Young Case ---------------------------------------------------------- In the case captioned DIANE YOUNG, individually Plaintiff, v. THE STANDARD FIRE INSURANCE COMPANY, a foreign insurance company, Defendant, Case No. 2:18-CV-031-RMP (E.D. Wash.), the United States District Court for the Eastern District of Washington issued an Order denying cross motions for partial summary judgment; granting Defendant's motion to dismiss class allegations, and denying as moot Plaintiff's motion for pre-certification discovery. Young's claims arise out of her central contention that Standard, as a subsidiary of Travelers Insurance, wrongfully denied personal injury protection (PIP) for injuries that Young allegedly sustained in a car accident. Young alleges that Standard should not have suspended payment pending investigation of Young's claims and completion of an independent medical examination (IME), when her treating physicians already had determined that the treatment she was receiving was reasonable, necessary, and related to the accident in which she was injured. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate when the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. A genuine dispute exists where the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law. Factual disputes that are irrelevant or unnecessary will not be counted. Young's primary contention is that Standard violates a Washington insurance regulation, and acts in bad faith, when its claims adjusters suspend payment of benefits based on their own review of claimants' medical records, without first obtaining a medical opinion. Young also alleges that Standard refused to schedule the IME until Standard obtained all of Plaintiff's prior treatment records and questions why Standard did not issue its suspension earlier, since the insurer's records indicate concerns regarding the medical bills allegedly as early as June 2017. By contrast, Standard maintains that suspending payment of PIP benefits pending the results of an IME is not a per se, actionable violation of the Washington insurance regulations. Standard further highlights that the IME was delayed because Young had limited the scope of her medical release at the outset of her claim, and both Young and the reviewing medical professionals expressed limited availability when scheduling the IME. Plaintiff's class claim and individual claims regarding suspension of the PIP benefits pending an IME take issue with the short-term allocation of the cost of medical expenses, arguing at oral argument that, as a matter of law, the insurer must continue to pay the benefits pending the IME and may recover erroneously paid benefits from the insured after an adverse final determination. Plaintiff insists that suspension legally amounts to denial because Defendant's own claims adjusters testified in their depositions that they deny all bills after suspending PIP benefits until after the IME is complete. Plaintiff repeatedly emphasizes that the claims adjusters lacked the technical expertise to be able to suspend benefits on the basis the medical care is not related, reasonable, or necessary. These arguments are unavailing considering the dearth of authority supporting Plaintiff's primary position. The Court finds a meaningful distinction between deciding that a medical opinion is needed and impermissibly rendering a lay determination of medical reasonableness, necessity, or relatedness, and none of the relevant caselaw erases that distinction. Suspension is not necessarily denial for purposes of WAC Section 284-30-395. An insurer may rely on a medical opinion of health care professionals to deny, limit, or terminate benefits for medical expenses that are not reasonable, necessary, or related to the accident. Securing that medical opinion may take some time, and it becomes a question of fact as to whether under a different WAC provision referred to by the parties, WAC Section 284-3-330, the insurer's investigation of the insured's claim was reasonable. There is no dispute that Standard withheld payment of Young's medical bills pending an IME and that Standard's claims handling policies allowed the adjuster to do so. However, Plaintiff's assertion that those undisputed facts demonstrate a violation of WAC Section 284-30-395 or constitute bad faith is not supported by the caselaw upon which Plaintiff relies. Simply put, there is no basis to find that Standard violated WAC Section 284-30-395, or demonstrated bad faith, simply by sending Young a suspension letter and requesting an IME. By contrast, questions of material fact persist regarding whether Defendant's investigation of Plaintiff's claim was reasonable under WAC Section 284-30-330 in that it is disputed as to whether Standard unreasonably delayed requesting an IME or took other actions amounting to bad faith or unfair conduct. Both Motions for Partial Summary Judgment shall be denied. Dismissal of Plaintiff's Class Allegations and Plaintiff's Efforts to Obtain Pre-Certification Discovery Plaintiff seeks to compel from Defendant responses and documents relating to whether Defendant has engaged in a common policy or practice of suspending payment of PIP to putative class members on the basis of its bare requests for an IME instead of first obtaining and providing notice of medical opinion from an actual medical or health professional with whom the insurer consulted supporting the suspension. Defendant seeks to dismiss Plaintiff's class allegations on the basis that there is no legal foundation upon which they may proceed. Complaints filed in federal court must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Class allegations in a complaint are commonly tested on a motion for class certification, not at the pleading stage. Correspondingly, motions to dismiss or strike class allegations are disfavored, particularly where the arguments against the class claims would benefit from discovery or would otherwise be more appropriate in a motion for class certification. Nevertheless, sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff's claim. Applying a strict standard requiring that any questions of law are clear and not in dispute, and that under no set of circumstances could the claim or defense succeed, courts may strike class allegations from a complaint. Although Plaintiff filed her motion to compel pre-certification discovery at a relatively early stage in this litigation, since that time the parties have engaged in a substantive exchange of arguments, with a corresponding distillation of issues, that has been absent in cases in which courts have declined to address challenges to a putative class's viability at the pleading stage. Accordingly, Plaintiff's class allegations shall be dismissed without prejudice while Plaintiff's individual claims shall be allowed to proceed, and Plaintiff's Motion to Compel shall be denied as moot. Defendant's Motion for Partial Summary Judgment is DENIED. Accordingly, the Court orders that: -- Plaintiff's Motion for Summary Judgment is DENIED. -- Defendant's Motion for Partial Summary Judgment is DENIED. -- Defendant's Motion to Dismiss Class Action Allegations is GRANTED. -- Plaintiff's Motion to Compel Class Certification Discovery is DENIED AS MOOT. The Courtroom Deputy shall schedule a status conference with the parties to reestablish a trial schedule to resolve Plaintiff's individual claims, rules the Court. A full-text copy of the District Court's September 30, 2019 Order is available at https://tinyurl.com/y62xodtr from Leagle.com. Diane Young, individually, Plaintiff, represented by J.J. Jesse Junior Thompson , Armitage & Thompson, PLLC, 220 W. Main Avenue, Spokane, WA 99201, Christopher Eric Love - chris@pcvalaw.com - Pfau Cochran Vertetis Amala PLLC, Darrell Lee Cochran- darrell@pcvalaw.com - Pfau Cochran Vertetis Amala, Kevin M. Hastings - kevin@pcvalaw.com - Pfau Cochran Vertetis Amala PLLC & Loren A. Cochran - loren@pcvalaw.com - Pfau Cochran Vertetis Amala PLLC. The Standard Fire Insurance Company, a foreign insurance company, Defendant, represented by Eric J. Neal - eneal@letherlaw.com - Lether & Associates PLLC, Thomas Lether - tlether@letherlaw.com - Lether & Associates PLLC & Mark Lane Hanover , Dentons US LLP, 1221 Avenue of The Americas, New York, NY 10020-1001, pro hac vice. STATE FARM: Bid to Dismiss Fraud/Unjust Enrichment Charges Denied ----------------------------------------------------------------- In the case, Anderson Phillips, et al., Plaintiffs, v. State Farm Fire and Casualty Company, Defendant, Case No. CV-19-04605-PHX-GMS (D. Ariz.), Judge G. Murray Snow of the U.S. District Court for the District of Arizona denied the Defendant's Motion to Dismiss Counts III and IV of Plaintiffs' First Amended Class Action Complaint. The Defendant is an Illinois corporation engaged in the business of insurance in Arizona. It contracts with Xactware, a company that sells a structural damage estimate program, to adjust residential and commercial property loss claims. Xactware's estimating tool has two different databases: a restoration database and a new construction database. The new construction database is used when property damage is so extensive that a ground up rebuild is required, while the restoration database is used when property damage requires renovation or repairs, but not a ground up reconstruction. Because it includes efficiencies in labor cost associated with ground up construction, the new construction database produces a lower cost estimate than the restoration data base would produce for the same scope of work. The Defendant selects which of the two databases to use when adjusting a claim. On Dec. 6, 2015, a fire occurred at the home of Plaintiffs Anderson and Jasmine Phillips ("Plaintiffs"), causing considerable damage to the home and the Plaintiffs' personal property. The Plaintiffs timely submitted a claim to Defendant for their loss and performed their obligations and responsibilities under their insurance policy with respect to the claim. On Dec. 14, 2015, the Defendant inspected the Plaintiffs' home and personal property. It subsequently estimated their repair costs at $153,759.64. The Plaintiffs also retained the services of a public adjuster, Skipton & Associates, Inc. ("SAI"). SAI inspected the Plaintiffs' home and personal property on Dec. 28, 2015 and submitted a repair cost estimate of $203,114.69. The Defendant refused to pay the higher amount estimated by SAI. The Plaintiffs filed suit in Maricopa County Superior Court on Sept. 30, 2016 alleging breach of insurance contract and tortious bad faith. While that complaint did not assert a class action theory, it alleged that the Defendant had underpaid the Plaintiffs' claim by approximately $50,000. On June 3, 2019, after the court granted leave over the Defendant's opposition, the Plaintiffs filed their amended complaint, asserting a class action and adding claims for unjust enrichment (Count III) and statutory insurance fraud under A.R.S. Section 20-443 (Count IV). The Plaintiffs allege the Defendant used Xactware's new construction database on claims that did not require a ground up rebuild, including their claim. The Plaintiffs further allege that as a result, the Defendant knowingly and intentionally underpaid on replacement cost claims to the detriment of the Plaintiffs and other insured parties. Pursuant to the Class Action Fairness Act and 28 U.S.C. Sections 1332(d), 1441, 1446, and 1453(a)-(b), the Defendant removed the case to the Court on July 1, 2019. On July 8, 2019, the Defendant filed the Motion to Dismiss. The Plaintiffs argue that they and each member of the putative class conferred a direct benefit on the Defendant through payments for property insurance, and that Defendant unjustly enriched itself by using new construction costs to calculate renovation losses. The Defendant argues that this claim must be dismissed because the parties' dispute is governed by contract (insurance policies) and Counts I and II of the complaint already allege claims arising out of the alleged breach of that contract. Judge Snow holds that the Plaintiffs plausibly allege that they did not receive the benefits promised in their contracts with the Defendant. They also plausibly allege that the Defendant made misrepresentations in the sale or advertisement of its policies. Finally, the Plaintiffs claim under A.R.S. Section 20-443 is not time-barred because their original and amended complaints arise out of a common scheme. For these reasons, the Judge denied the Defendant's Motion to Dismiss. He directed the Defendant to file an answer to the First Amended Class Action Complaint within 14 days of the date of the Order. Thus, the parties' obligations to produce the information called for in the MIDP within 30 days of the filing of an answer, as set forth in paragraph (A)(6) of the General Order, will be triggered by the Defendant's filing of an answer. A full-text copy of the Court's Nov. 6, 2019 Order is available at https://is.gd/LvaQ1I from Leagle.com. Anderson Phillips, husband and wife & Jasmine Phillips, husband and wife, Plaintiffs, represented by Lawrence Robert Moon -- lmoon@MerlinLawGroup.com -- Merlin Law Group PA, Michael N. Poli -- mpoli@MerlinLawGroup.com -- Merlin Law Group PA & Michael John Ponzo -- mponzo@MerlinLawGroup.com -- Merlin Law Group PA. State Farm Fire and Casualty Company, an Illinois corporation, Defendant, represented by Alicyn Marie Freeman -- amf@bowwlaw.com -- Broening Oberg Woods & Wilson PC, Robert Thomas Aquinas Sullivan -- rts@bowwlaw.com -- Broening Oberg Woods & Wilson PC & Alice Mae Jones -- amj@bowwlaw.com -- Broening Oberg Woods & Wilson PC. STUDIO 34: Cardoso Seeks to Recover Minimum and Overtime Wages -------------------------------------------------------------- MARCELA CARDOSO, on behalf of herself and others similarly situated v. STUDIO 34 HAIR SALON, INC., STUDIO 34 SALON INC., GARIK RAKHAMIMOV, and NASIBA AZIZBEKOVA, Case No. 1:19-cv-09684 (S.D.N.Y., Oct. 21, 2019), alleges that, pursuant to the Fair Labor Standards Act, the Plaintiff is entitled to recover from Defendants: (a) unpaid minimum wages; (b) unpaid overtime compensation; (c) liquidated damages; (d) prejudgment and post-judgment interest; and (e) attorneys' fees and costs. Studio 34 Hair is a domestic business corporation organized under the laws of the State of New York with a principal place of business located in New York City. Studio 34 Hair owns and operates a hair salon doing business as "Studio 34 Hair Salon," located at 1225 Third Avenue, in New York City. In 2017, Studio 34 Hair owned and operated a hair salon doing business as "Studio 34 Hair Salon," located at 201-A East 34th Street, in New York City, where the Plaintiff worked. Sometime after 2017, Studio 34 Hair ceased operations of the 34th Street Salon and opened the Third Avenue Salon. Studio 34 Salon is a domestic business corporation organized under the laws of the state of New York with a principal place of business located in New York City. Studio 34 Salon owns and operates a hair salon doing business as "Studio 34 Hair Salon," located at 250 East 40th Street, in New York City. The Individual Defendants are owners, officers or managers of the Corporate Defendants.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC I0 Grand Central 155 East 44th Street, 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: jcilenti@jcpclaw.com pcooper@jcpclaw.com TEE JAYE'S COUNTRY: Faces Cockrell Suit Alleging FLSA Violations ---------------------------------------------------------------- MELINDA COCKRELL, On behalf of herself and all others similarly situated v. TEE JAYE'S COUNTRY PLACE, INC. d/b/a TEE JAYE'S COUNTRY PLACE and DAYNA SOKOL, Case No. 2:19-cv-04658-JLG-EPD (S.D. Ohio, Oct. 21, 2019), challenges the Defendants' policies and practices that violate the minimum wage, overtime and tip provisions of the Fair Labor Standards Act and the Ohio overtime compensation statute. Ms. Cockrell was employed by the Defendants from April 2019 to October 2019 as a tipped employee at the South Hamilton, Ohio Tee Jaye's Country Place location as a server and hourly manager. She alleges that though the Defendants paid her and other similarly situated employees a subminimum wage as tipped employees, the Defendants did not comply with 29 U.S.C. Section 203(m)'s and Ohio law's tip credit requirements and were, thus, disqualified from taking a tip credit against her and proposed class members' minimum wages. Tee Jaye's Country Place, Inc., is an Ohio for-profit corporation with its principal place of business in Franklin County, Ohio. Dayna Sokol is an owner and the President of Tee Jaye's. The Defendants are owners and operators of approximately eight Tee Jaye's Country Place restaurant locations in Ohio.[BN] The Plaintiff is represented by: Joseph F. Scott, Esq. Ryan A. Winters, Esq. Kevin M. McDermott, II, Esq. SCOTT & WINTERS LAW FIRM, LLC The Caxton Building 812 Huron Rd. E., Suite 490 Cleveland, OH 44115 Telephone: (216) 912-2221 Facsimile: (216) 350-6313 E-mail: jscott@ohiowagelawyers.com rwinters@ohiowagelawyers.com kmcdermott@ohiowagelawyers.com TOTALMED STAFFING: Blumenthal Nordrehaug Files Class Action ----------------------------------------------------------- The Sacramento employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP, filed a class action lawsuit against Totalmed Staffing Inc., for allegedly failing to provide their workers in California with the legally required thirty minute uninterrupted meal periods and rest periods. The class action also alleges that Totalmed Staffing Inc., failed to properly reimburse their California employees for necessary business expenses they incurred on the company's behalf. The Totalmed Staffing Inc., class action is currently pending in the Santa Clara County Superior Court for the State of California, Case No. 19CV354635. To view a copy of the Complaint, click here. The lawsuit filed against Totalmed Staffing Inc., alleges that the company failed to provide their California employees with the legal required thirty (30) minute uninterrupted meal break prior to their fifth hour of work. The complaint alleges, "As a result of their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS Members were also from time to time unable to take thirty (30) minute off duty meal breaks and were not fully relieved of duty for their meal periods." The Class action lawsuit also alleges that the company violated the Fair Credit Reporting Act by unlawfully, unfairly and/or deceptively having in place company policies, practices and procedures that uniformly obtained credit reports on prospective employees without first obtaining valid authorization consent forms. For more information about the class action lawsuit filed against Totalmed Staffing Inc., please call Attorney Nicholas De Blouw at (800) 568-8020. Blumenthal Nordrehaug Bhowmik De Blouw LLP, is a Northern California employment law firm that dedicates its practice to helping employees, fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. The firm has offices located in San Diego, Los Angeles, Riverside, San Francisco, Sacramento, Orange, Santa Clara and Chicago. [GN] TOYOTA MOTOR: Faces Class Action Over Repossessed Cars ------------------------------------------------------ Brigette Honaker, writing for Top Class Actions, reports that a recent Toyota class action claims that the auto company's credit division wrongfully repossesses cars from consumers under bankruptcy protections. Plaintiff Robert M. Muswaya reportedly filed bankruptcy in June 2019. During this filing, his 2018 Toyota Corolla was reportedly covered by an "automatic stay" which prevents it from being repossessed. Because the vehicle became property of Muswaya's bankruptcy estate, it was allegedly covered by this automatic stay. The stay reportedly prohibits "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate" as well as "any act to create, perfect, or enforce any lien against property of the estate." Despite this stay, Toyota Motor Credit Corp. allegedly repossessed the vehicle in September without authorization from the bankruptcy court. "[Toyota's] conduct demonstrates a blatant disregard of the rights of bankruptcy debtors and the mandates of the Bankruptcy Code," the Toyota class action argues. The company, who issued a loan to Muswaya for the vehicle, allegedly refused to return the vehicle when requested. As a result, Muswaya has allegedly been forced to spend $2,307 on alternative transportation such as rental cars and cab fares. "As a result of [Toyota's] willful, malicious and reckless repossession of plaintiff's vehicle, plaintiff sustained significant damages," the Toyota class action lawsuit claims. "As a result of [Toyota's] unlawful repossession, plaintiff was deprived of his primary means of transportation." Due to the lack of transportation, Muswaya was allegedly unable to make it to work which caused him to miss out on wages. In addition to the financial damages sustained due to the repossession, Muswaya reportedly suffered "significant emotional distress, mental anguish, anxiety, loss of time, and extreme inconvenience." Muswaya argues that Toyota willfully violated bankruptcy regulations by repossessing the vehicle. According to the Toyota class action, the automotive company had actual knowledge of Muswaya's bankruptcy filing and repossessed his vehicle while operating under internal policies which "run afoul" of bankruptcy codes. The Toyota class action lawsuit seeks actual damages, punitive damages, court costs, and attorneys' fees. The complaint also seeks a court order enjoining Toyota from committing any further violations of U.S. bankruptcy law. Muswaya seeks to represent a Class of consumers who had their vehicle repossessed by Toyota within the last three years after declaring bankruptcy. Class Members are eligible if Toyota repossessed the vehicle without seeking relief from an automatic stay or before the automatic stay expired. The exact number of Class Members isn't known, but Muswaya believes that there could be thousands of consumers in the same situation as him. Did you have your vehicle repossessed by Toyota despite an automatic stay during bankruptcy proceedings? Share your experiences in the comment section below. Muswaya and the proposed Class are represented by Mohammed O. Badwan and Joseph S. Davidson of Sulaiman Law Group Ltd. The Toyota Repossession Class Action Lawsuit is Muswaya, et al. v. Toyota Motor Credit Corp., Case No. 4:19-cv-00768, in the U.S. District Court for the Eastern District of Texas. [GN] TTC LLC: Millward TCPA Suit Seeks to Stop Unsolicited Marketing --------------------------------------------------------------- Ryan Millward, individually and on behalf of all others similarly situated v. TTC, LLC d/b/a Try The CBD, a Colorado Limited Liability Company, Case No. 0:19-cv-62887-XXXX (S.D. Fla., Nov. 21, 2019), is brought to secure redress for the Defendant's violation of the Telephone Consumer Protection Act. The Defendant is a Colorado-based CBD oil products company. To promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process, the Plaintiff contends. Through this action, the Plaintiff seeks injunctive relief to halt the Defendant's illegal conduct, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals. The Plaintiff also seeks statutory damages on behalf of himself and members of the class, and any other available legal or equitable remedies. The Plaintiff is a natural person, who was a resident of Broward County, Florida.[BN] The Plaintiff is represented by: Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Ave., Suite 1205 Miami, FL 33132 Phone (305) 479-2299 Email: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Phone: (305) 975-3320 Email: scott@edelsberglaw.com UBER TECHNOLOGIES: Seeks Dismissal of Drivers' Class Action ----------------------------------------------------------- Kathleen Dailey, writing for Bloomberg Law, reports that Uber asked a California federal court to throw out a driver's proposed class action, saying that it can't proceed because most putative class members already agreed to individual arbitration and class-action waivers. Thomas Colopy filed individual and class action claims against Uber Technologies Inc. Oct. 9 in the U.S. District Court for the Northern District of California. He alleged that Uber willfully misclassified him and other drivers as independent contractors, violating California wage, overtime, business expenses, recordkeeping, and unfair competition laws. Uber responded Oct. 18, saying that the claims didn't satisfy federal class action requirements. [GN] US BANCORP: Bruna Sues Over Illegal Telemarketing Text Messages --------------------------------------------------------------- ESTEBAN BRUNA, individually and on behalf of all others similarly situated v. U.S. BANCORP d/b/a US BANK, a Delaware corporation, Case No. 0:19-cv-02750 (D. Minn., Oct. 21, 2019), is brought under the Telephone Consumer Protection Act seeking to halt the Defendant's illegal conduct of sending telemarketing text messages, which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals, including the Plaintiff. To promote its services, the Defendant engages in unsolicited marketing, harming thousands of consumers in the process, the Plaintiff contends. He asserts that at no point in time did he provide the Defendant with his express written consent to be contacted using an automatic telephone dialing system. The Defendant is a Delaware corporation with a principal office located at 800 Nicollet Mall, in Minneapolis, Minnesota. The Defendant is an American bank holding company.[BN] The Plaintiff is represented by: Melissa S. Weiner, Esq. Joseph C. Bourne, Esq. PEARSON, SIMON & WARSHAW, LLP 800 LaSalle Avenue, Suite 2150 Minneapolis, MN 55402 Telephone: (612) 389-0600 Facsimile: (612) 389-0610 E-mail: mweiner@pswlaw.com jbourne@pswlaw.com - and - Andrew J. Shamis, Esq. Garrett O. Berg, Esq. SHAMIS & GENTILE, P.A. 14 NE 1st Avenue, Suite 1205 Miami, FL 33132 Telephone: (305) 479-2299 Facsimile: (786) 623-0915 E-mail: ashamis@shamisgentile.com gberg@shamisgentile.com - and - Scott Edelsberg, Esq. EDELSBERG LAW, PA 20900 NE 30th Ave., Suite 417 Aventura, FL 33180 Telephone: (305) 975-3320 E-mail: scott@edelsberglaw.com VENATOR: Bernstein Litowitz Appointed as Class Action Lead Counsel ------------------------------------------------------------------ Law360 reports that Bernstein Litowitz was appointed lead counsel in a putative class action in Texas federal court against pigment and additive company Venator, whose shareholders claim downplayed the seriousness of a fire at one of its facilities in the months leading up to its 2017 initial and secondary public offerings. [GN] WAL-MART INC: Settles Pregnancy Bias Class Action for $14 Million ----------------------------------------------------------------- Jennifer Carsen, writing for HR Drive, reports that Walmart will pay $14 million to settle a class action alleging it had a discriminatory written policy that denied pregnant workers the same benefits as other similarly situated workers (Borders v. Wal-Mart Inc., No. 17-cv-0506 (N.D. Ill. Oct. 15, 2019)). The court filing says this case "was one of the first, if not the first, in the nation in which private plaintiffs brought claims of pregnancy discrimination on behalf of a class of women who were denied workplace accommodations because of pregnancy." The lawsuit was triggered when a pregnant worker who had a medical restriction against lifting more than 25 lbs. was allegedly denied light duty even though light duty was available to workers injured on the job who were otherwise similar in their ability to work. The worker says Walmart told her she had to take an unpaid leave of absence pursuant to company policy. Other workers came forward with similar allegations. The class consists of approximately 740 Walmart employees whose pregnancy accommodation requests were allegedly denied. Walmart is not, as part of the settlement, conceding the truth of the allegations or all of the facts as presented by the plaintiffs. Dive Insight: Walmart has found itself in a lot of legal hot water lately. Though it was able to defeat a terminated employee's age bias allegations by showing a legitimate, non-biased reason for the firing, a jury recently awarded a Walmart cart pusher more than $5 million in a disability bias lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC). A separate EEOC lawsuit, filed earlier in October, claims the retailer failed to allow an applicant with a disability to take a physical assessment. Additionally, back in August, a Walmart in Washington, D.C., paid out $100,000 to settle EEOC allegations that it had refused to accommodate two deaf employees. Class actions alleging pregnancy bias aren't always possible if the claims are too fact-specific. Here, however, a broadly applied policy allegedly affected numerous women across multiple states in a similar way. The Pregnancy Discrimination Act provides that discrimination against employees or applicants on the basis of childbirth, pregnancy, or related medical conditions constitutes illegal sex discrimination. Pregnancy alone is not considered a disability under the Americans with Disabilities Act, but conditions linked to or caused by it may be. The law is clear that pregnant employees who are able to continue performing their jobs must be allowed to do so. If, however, a pregnant employee is temporarily unable to perform a job, the worker must be treated the same as any other employee with a temporarily disability in terms of opportunities for light duty, modified tasks, alternative assignments, unpaid leave or disability leave. [GN] WALT DISNEY: Responds to Gender Discrimination Class Action ----------------------------------------------------------- Dominic Patten, writing for Deadline, reports that ten women across the Walt Disney Company claim that the Bob Iger-run media giant doesn't pay women fairly and are challenging the House of Mouse in court in a proposed class action first launched this spring. However, while fine with fighting a ton of individual actions, Disney are now declaring that the potentially massive discrimination suit is just too unwieldy for the Burbank based conglomerate to handle, seriously. "The Walt Disney Company described in Plaintiffs' Complaint is not The Walt Disney Company that exists in fact and law," declares Disney in a memorandum accompanying their October 18 move to kneecap the class action. "The Disney Companies categorically deny that they pay any female employee less than her similarly situated male coworkers and will vigorously defend themselves against each Plaintiff's individual claims," the L.A. Superior Court document adds dismissively, literally and figuratively. "But that is all this case is–an assortment of individual claims, based on highly individualized allegations." Or, as Felicia Davis -- feliciadavis@paulhastings.com -- of Paul Hasting LLP and Disney's chief lawyer in the matter put it unequivocally from her clients' POV: "The parties do not need to litigate this case for three years to discover what is clear today -- Plaintiffs' claims are not appropriate for class or representative treatment." Longtime Walt Disney Studios employees LaRonda Rasmussen and Karen Moore instigated the suit back on April 3 in a move for back pay, lost benefits and other compensation. They were joined by eight other women on September 18 in an amended complaint that Disney now wants to see shredded -- just like the attorneys for the product development manager, the copyright administrator and the others expected. "We anticipated Disney's attack on the complaint, and are preparing our opposition," Lori Andrus of San Francisco firm Andrus Anderson LLP told Deadline on Oct. 21. "Although Disney's legal team attempts to minimize the scope of the impact of the company's unfair pay practices, the experiences of Ms. Rasmussen and the other plaintiffs show that unequal pay is not limited to one division or one job level," the attorney stated. "Disney is essentially arguing that it is too big to be held accountable. But no company should be permitted to evade equal pay laws just because it is large." Pivoting against the plaintiff's read on the Golden State's long on the books and rarely enforced Fair Pay Act, Disney are essentially making the argument that the potential class action initiators' lawyer plain calls them out on. "The comparisons Plaintiffs seek to make-across different jobs, different levels and with potentially unspecified other differences-would demand an individual-by-individual review of the duties, skills, effort, responsibility, and working conditions of each woman in every job, compared to each man in every other job, to identify the correct comparator pool," the company pleads in the 22-page filing to get the class struck. "The defenses to which the Disney Companies are statutorily entitled to assert for each individual further exposes the unique, non-fungible nature of Plaintiffs' jobs," the paperwork continues noting that differences in pay can come from aspects other than gender "such as education, training or experience." Which is where Disney really digs in: "For one putative class member, the Disney Companies may argue that she lacks the job critical prior experience of a male colleague.For another putative class member, the Disney Companies may argue that she lacks important education or training required for the job. For many others, no defense will be necessary at all because the female employee will be the highest paid among her peers." Rasmussen and Moore's initial complaint followed the former going to Disney HR about her pay being less than men at the company performing the same or similar jobs. The situation specific audit the still Disney employed Rasmussen requested was conducted and the then just under a decade employee was basically told, yes you are right, the men are paid more but its "not due to gender." Last year, Rasmussen's pay was increased over $20,000 a year but she says she is still paid less than men doing the work that she is. Facing what could be hundreds of millions of dollars in pay adjustments and past compensation if the class action is allowed to continue and gearing up for a brave new streaming future, family focused Disney obviously don't want to be having to do that. This battle comes in an environment when many media companies and others are committing themselves to California's Equal Pay Pledge -- which Disney has not yet inked for its over 60,000 stateside employees. As it is, women overall in American earn about 80% of what men do, at best. The Walt Disney Company did not respond to request for comment on its strike filing. However, the lawyers for the company and the plaintiffs will be showing up in LASC on December 11 to argue whether this class action should go forward or not. [GN] WATERSTONE FINANCIAL: Continues to Defend Herrington Class Suit --------------------------------------------------------------- Waterstone Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 1, 2019, for the quarterly period ended September 30, 2019, that the company continues to defend a class action suit entitled, Herrington et al. v. Waterstone Mortgage Corporation. Waterstone Mortgage Corporation was a defendant in a class action lawsuit that was filed in the United States District Court for the Western District of Wisconsin and subsequently compelled to arbitration before the American Arbitration Association. The plaintiff class alleged that Waterstone Mortgage Corporation violated certain provisions of the Fair Labor Standards Act (FLSA) and failed to pay loan officers consistent with their employment agreements. On July 5, 2017, the arbitrator issued a Final Award finding Waterstone Mortgage Corporation liable for unpaid minimum wages, overtime, unreimbursed business expenses, and liquidated damages under the FLSA. On December 8, 2017, the District Court confirmed the award in large part, and entered a judgment against Waterstone in the amount of $7,267,919 in damages to Claimants, $3,298,851 in attorney fees and costs, and a $20,000 incentive fee to Plaintiff Herrington, plus post-judgment interest. On February 12, 2018, the District Court awarded post-arbitration fees and costs of approximately $98,000. The judgment was appealed by Waterstone to the Seventh Circuit Court of Appeals, where oral argument was held on May 29, 2018. On October 22, 2018, the Seventh Circuit issued a ruling vacating the District Court's order enforcing the arbitration award. If the District Court determined the agreement only allows for individual arbitration, the award would be vacated and the case sent to individual arbitration for a new proceeding. If the District Court determined the arbitration agreement nevertheless allows for collective arbitration, the District Court could have confirmed the prior award. On December 28, 2018, Plaintiff filed a post-remand brief. In it, Plaintiff asked the District Court to reaffirm the arbitration award entered by the arbitrator in full. Alternatively, she asked the Court to affirm her individual damage award and the awards of 123 other opt-ins whose arbitration agreements permit joinder or class actions. Lastly, Plaintiff asked the District Court to have 154 opt-ins intervene and file an amended complaint for individual relief in court. Waterstone opposed the motion on January 28, 2019, and asked the District Court to vacate the prior Final Award in full because Herrington’s arbitration agreement only allowed for individual arbitration. Plaintiff filed its reply on February 14, 2019. On April 25, 2019, the District Court held that Plaintiff's claims must be resolved through single-plaintiff arbitration. As a result, it vacated the July 5, 2017 arbitration award in its entirety, and closed the case. In May 2019, Herrington and approximately 90 of the prior Claimants filed new demands in arbitration asserting similar claims. Waterstone has answered to those demands and denies the allegations. Waterstone will continue to vigorously defend its interests in these matters and does not believe a loss is probable at this time. No further updates were provided in the Company's SEC report. Waterstone Financial, Inc. operates as a bank holding company for WaterStone Bank SSB that provides various financial services to customers in southeastern Wisconsin, the United States. It operates through two segments, Community Banking and Mortgage Banking. The company was formerly known as Wauwatosa Holdings, Inc. and changed its name to Waterstone Financial, Inc. in August 2008. Waterstone Financial, Inc. was founded in 1921 and is based in Wauwatosa, Wisconsin. WELLS FARGO: Liguori Files Suit in S.D. New York ------------------------------------------------ A class action lawsuit has been filed against Wells Fargo Bank, N.A. The case is styled as William Liguori, Jr., Tricia Liguori, Jose Aguilar, Elizabeth Manley, individually and on behalf of all those similarly situated, Plaintiffs v. Wells Fargo Bank, N.A., Defendant, Case No. 7:19-cv-10677 (S.D.N.Y., Nov. 18, 2019). The nature of suit is stated as Other Statutory Actions. Wells Fargo Bank, National Association operates as a bank. The Bank offers online and mobile banking, home mortgage, loans and credit, investment and retirement, wealth management, and insurance services.[BN] The Plaintiffs appear pro se. WORLD FINANCIAL: Transfer of Yeomans to Ga. Northern Dist. Denied ----------------------------------------------------------------- In the case, TRICIA YEOMANS, et al., Plaintiffs, v. WORLD FINANCIAL GROUP INSURANCE AGENCY, INC., et al., Defendants, Case No. 19-cv-00792-EMC (N.D. Cal.), Judge Edward M. Chen of the U.S. District Court for the Northern District of California denied (i) the Defendants' motion to transfer the case to the U.S. District Court for the Northern District of Georgia, and (ii) the Plaintiffs' request for attorneys' fees. The Plaintiffs bring a putative class action against Defendants World Financial Group Insurance Agency (a California corporation), World Financial Group Inc. (a Florida corporation), and Does 1 to 100, alleging violations of the California Labor Code, the California Business and Professional Code, and California Wage Orders (and asserting a claim of unjust enrichment) based on the Defendants' purported misclassification of the Plaintiffs as independent contractors, as opposed to employees. The Defendants represent themselves as a financial- and insurance-products marketing company; they recruit individuals as "Associates" and purport to give people the tools to build and operate their own financial services business. However, the Plaintiffs assert that the Defendants conduct their business by way of a massive pyramid scheme, wherein recruiting new Associates is one of the main factors involved in achieving promotions. Once someone is an Associate, the Defendants pressure that person to purchase the Defendants' financial and insurance products and to sell financial and insurance products to the new Associates. The Plaintiffs also allege that the Defendants have unlawfully misclassified Associates as 'independent contractors' rather than as employees in order to further increase profits. Specifically, each Associate is required to sign identical, non-negotiable Associate Membership Agreements ('AMAs'), which set forth uniform rules and policies promulgated by the Defendants, which subject Associates to strict control. The Plaintiffs and the Class Members signed the AMAs. The Plaintiffs also contend that the Defendants completely control the overall operation of the business and retain the exclusive authority to hire and fire every Associate. Furthermore, because of this classification, Associates earn only commissions, not minimum wage, and they bear the burden of business costs, which the Defendants might otherwise bear. In addition, Associates are improperly deprived of the protection of workers' compensation, the benefits of overtime pay, and meal and rest breaks. The Plaintiffs contend that, through this conduct, the Defendants have violated various provisions of the California Labor Code, the California Business and Professional Code, and California Wage Orders; they also assert a claim of unjust enrichment. The Defendants seek to have the case transferred to the U.S. District Court for the Northern District of Georgia because of forum selection clauses in the parties' various agreements. It also alleges that many of the Plaintiffs signed Marketing Director Agreements ("MDAs"), which do not displace the AMAs, but contain a similar forum-selection clause, under which those Plaintiffs reaffirmed their commitment to conduct 'all litigation' in Georgia. The Plaintiffs filed the case in San Francisco Superior Court in December 2018. It was removed by the Defendants in February 2019. In June 2019, the Plaintiffs filed a First Amended Class Action Complaint. Shortly thereafter, the Defendants filed a Motion to Transfer Case; they move the Court for an order transferring the case to the U.S. District Court for the Northern District of Georgia. The parties dispute three issues regarding the forum selection clauses at issue in the case. First, the Plaintiffs assert that the Defendants failed to properly authenticate their AMAs and MDAs," which means that the authenticity of the documents is disputed. Second, and relatedly, the Plaintiffs contend that they "never saw or were provided with a full copy of the AMA" when they were recruited, and instead were only provided with the AMA's signature page. Third, the parties disagree as to whether the forum selection clauses in the AMAs and MDAs violate California public policy and are therefore voidable. Assuming, for the sake of argument, that the documents are properly authenticated and that the Plaintiffs did see all of the documents' provisions in their entirety when signing them, the Judge Chen finds that the third issue is the one upon which the Defendants' Motion turns. He focuses his analysis accordingly. The Plaintiffs argue that enforcing the Agreements' forum-selection clauses is against the strong public policy of California in favor of its workers' protections as expressed by Cal. Labor Code Section 925. The Judge finds that (i) the allegations are highly suggestive of a relationship in which the Plaintiffs work under the control and direction of the Defendants; (ii) the Plaintiffs have pled sufficient facts to support a plausible claim of misclassification at this stage; and (iii) the parties' employment agreements within the sweep of Section 925; (iv) the modifications at issue bring the AMAs and MDAs within the sweep of Section 925. Having found that the Plaintiffs plausibly allege they are properly classified as employees, that the Agreements imposed "conditions of employment," and that modifications to the Agreements were made after the effective date of Section 925, the Judge finds that the Plaintiffs may void the forum selection clauses at issue. The Judge also finds that the Section 1404(a) factors weigh in favor of keeping the case in California. Having found the forum selection clauses at issue voidable and having concluded that the factors of Section 1404(a) weigh against transfer, the Judge denies the Defendant's Motion to Transfer, as other Courts looking at forum selection clauses have done when analyzing Section 925 of the California Labor Code. Finally, the Plaintiffs' counsel seeks attorneys' fees under Section 925 of the California Labor Code. The Plaintiffs' counsel notes the numerous hours of work dedicated to the motion and Mr. Schaad's "false statements" (among several reasons) as the basis of their request. The Defendants offer several responses, but the most important among them is that they had a reasonable basis to bring the Motion. Because the Court is loath to award attorneys' fees in the absence of bad faith or unreasonableness, the Judge denies the Plaintiffs' request for attorneys' fees. For the foregoing reasons, Judge Chen denied (i) the Defendants' Motion to Transfer, and (ii) the Plaintiffs' request for attorneys' fees. The Order disposes of Docket No. 24. A full-text copy of the Court's Nov. 6, 2019 Order is available at https://is.gd/R0AmDi from Leagle.com. Tricia Yeomans, individually and on behalf of all others similarly situated & Adrian Rodriguez, individually and on behalf of all others similarly situated, Plaintiffs, represented by Adam Tamburelli -- atamburelli@marlinsaltzman.com -- Marlin and Saltzman, LLP, Christina Marie Lucio, Farnaes and Lucio, APC, Karen I. Gold, Marlin Saltzman, LLP & Stanley Donald Saltzman -- ssaltzman@marlinsaltzman.com -- Marlin and Saltzman LLP. Ismail Chraibi, individually and on behalf of all others similarly situated, Robert Jenkins, individually and on behalf of all others similarly situated, Dorothy Jenkins, individually and on behalf of all others similarly situated, Fatemeh Abtahi, individually and on behalf of all others similarly situated & Cameron Bradford, individually and on behalf of all others similarly situated, Plaintiffs, represented by Adam Tamburelli, Marlin and Saltzman, LLP, David Rosenberg, Rosenberg Shpall and Zeigen, APLC, Chad F. Edwards, Rosenberg, Shpall and Zeigen, APLC, Christina Marie Lucio, Farnaes and Lucio, APC, Karen I. Gold, Marlin Saltzman, LLP & Stanley Donald Saltzman, Marlin and Saltzman LLP. World Financial Group Insurance Agency, Inc., a California corporation & World Financial Group, Inc., a Georgia corporation, Defendants, represented by Spencer C. Skeen -- spencer.skeen@ogletree.com -- Ogletree Deakins Nash Smoak Stewart PC, Jesse Carter Ferrantella, Ogletree Deakins, Marlene Moffitt -- marlene.moffitt@ogletree.com -- Ogletree Deakins Nash Smoak & Stewart, PC & Timothy Lloyd Johnson -- tim.johnson@ogletree.com -- Ogletree Deakins Nash Smoak and Stewart, P.C.. XPO LOGISTICS: Settles Wage Class Action for $16.5 Million ---------------------------------------------------------- Kathleen Dailey, writing for Bloomberg Law, reports that a $16.5 million wage-related class action settlement between XPO Logistics Inc., a delivery service company, and its drivers, obtained final approval from a judge in the Northern District of California. XPO provides delivery and basic installation services in California and throughout the U.S. for retailers including Home Depot, Lowe's Home Improvement, Macy's, Ethan Allen, Pottery Barn, and Kraftmaid. Delivery drivers based in California brought a class action against XPO in March 2016, alleging they were misclassified as independent contractors in violation of California wage and work-related-expense laws, and federal Fair Labor Standards Act overtime requirements. [GN] ZAPPOS: Nov. 29 Deadline Set to Object to Settlement Terms ---------------------------------------------------------- Andrew Rossow, writing for Grit Daily, reports that yeah, in this case, users are the "bastards" to the Zappos family. Seven years after the Zappos data breach, the long-awaited class-action lawsuit has finally come to its closing mark. Unfortunately, for the Las Vegas online store's users, the news isn't that great -- if anything, it's almost laughable. For a quick recap, Zappos first warned users by email in January 2012 that it had suffered a data breach, affecting 24 million users. The breach exposed data including names, email addresses, billing and shipping addresses, phone numbers, and the last four digits of credit card numbers. It also included password hashes, which generated using the SHA-2 algorithm. Days following the breach notification, Zappos was hit by a lawsuit seeking class action status over its security failure. Under Nevada's data breach statute, codified in Title 52, Chapter 603A of the Nevada Revised Statutes Annotated, a data collector is subject to Nevada's data breach notification statute if it owns or licenses computerized data that includes personal information. In this event, it shall disclose any breach in the security of the system data to any resident of Nevada whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. This notice can be delivered via written notification, electronic notice, if its consistent with the provisions of the Electronic Signatures in Global and National Commerce Act, and/or substitute notice, as further discussed in Nevada's data breach notification statute. In March, the U.S. Supreme Court refused to hear an appeal from Zappos, which would have addressed the issue of "standing," which is required under Article III of the U.S. Constitution. 'Standing' refers to a justifiable harm or an articulatable harm caused by another party. The result of the SCOTUS' refusal to hear an appeal, meant that the victims of the breach did not have to show evidence of illegal activity directly linked to the Zappos breach. With the lawyers set to receive $1,620,000 in attorneys' fees and other legal costs, Zappo users are walking away with a 10% discount for any future purchase at the online store. You've got to be fu***** kidding me right?? But wait, there's more. Okay, now you can throw down. This settlement marks another case where data breach victims walk away with almost nothing in their pockets, and more problems with little to no remedy. The terms of the settlement received preliminary approval from District Judge Robert C. Jones on September 19, and victims have until November 29 to file their objections. It currently is pending Judge Jones' approval in a final approval hearing scheduled for December 20. This lawsuit represents everything that's wrong with class-action lawsuits today and our legal justice system. #1—History Continues to Repeat Itself If you are thinking of countering that this is just one shitty outcome, think again. This isn't anything new. Yahoo's Data Breach Let's look back to the Yahoo data breach and its accompanying settlement, where affected users were able to walk away with a maximum of $358.80. Back in September, Yahoo announced that if you had an account any time between January 1, 2012 and December 31, 2016, and are a resident of the U.S. or Israel, you are part of the settlement class and can file a claim for part of the $117,500,000. In other words, you may be entitled to at least $358 as part of the settlement. The settlement was designed to compensate users for losses resulting from a series of data breaches that took place in 2012 and 2013. Over several years, hackers were able to gain access to Yahoo user accounts, stealing private emails, calendars, and contacts in at least three documented, separate attacks. The breaches ranged in scope from two attacks in 2012, although Yahoo claims no data was taken, to a 2013 breach where hackers were able to gain access to information from more than 3 billion Yahoo accounts, stealing names, email addresses, telephone numbers, birth dates, passwords, and answers to many security questions. Equifax Data Breach Back in September 2017, credit reporting agency, Equifax announced a data breach that exposed the personal information of over 147 million people, one of the largest data breaches in history. The company settled with the FTC for $425 million in September 2019, again, with little to no accountability. Why? Consumers still have no choice when other agencies choose to pull credit information from Equifax. The Equifax settlement generously allowed consumers to walk away with a whopping $125. However, just two days ago, it was announced that Equifax used the word "admin" as both password and username for a portal that contained sensitive information, according to a class action lawsuit filed in federal court in the Northern District of Georgia. The ongoing lawsuit, consolidating the 373 previous lawsuits into one, was filed after the company's data breach, went viral after BuzzFeed reporter Jane Lytvynenko took to Twitter sharing the details from the lawsuit: "Equifax employed the username 'admin' and the password 'admin' to protect a portal used to manage credit disputes, a password that 'is a surefire way to get hacked,'" the lawsuit reads. The lawsuit also notes that Equifax admitted using unencrypted servers to store the sensitive personal information and had it as a public-facing website. One of the three largest consumer credit reporting agencies left the keys to unlocking public-facing servers up for grabs. #2—The Settlement Is Absolutely BONKERS While the settlement is the first where both parties have formally agreed following a very drawn-out, seven-years-old lawsuit, I'm not sure what the hell was going on during this seven-year period. What made this case unusually difficult, was the lack of evidence that consumers actually suffered from the breach beyond simply changing their passwords. Indeed, as Zappos wasn't found to be negligent in its security measures, holding the company responsible and liable for the breach was an up-hill battle. It's a slap in the face to consumers and to the justice system. These settlements are not reflective nor punitive enough in nature to wake these companies up. It's only fair to assume the same will take place with whatever settlement arises from the Capital One data breach and Door Dash data breach. The settlement, having received preliminary approval, has its final approval hearing in December. The settlement itself grants $2,500 to each of the nine representative plaintiffs in the case, while the rest of the $1.6 million settlement fund goes straight into the attorney fees. God it would be nice to be one of them right now. As you may have guessed by now, the public is fucking furious with the Zappos outcome. Don't believe us? Check out your Twitter feeds. #3—Consumers Are Left to Fend for Themselves So, if you're one of probably 99 percent of the masses that is extremely disjointed with the settlement, you can opt out and hire a lawyer to help fight the case individually. However, Adam Moskowitz, a class-action attorney in Miami believes the opt-out rate for the settlement will be very low. "It's better than nothing," Moskovitz said of the discount, explaining that in a settlement, the plaintiff and defendant agree on the relief (your compensation) together. While the coupon is a show of goodwill, it does more harm than good. Of course, loyal consumers to the brand will continue to buy shoes, but what about those truly affected or upset? But, that's just it isn't it? We are continuing to see each of these conglomerates escape liability, with little to no accountability, while the average consumer continues to suffer. Sorry Moskovitz, but it's not better than nothing—why would people continue to trust, at least wholly, the security Zappos offers? I don't care that there was a lack of evidence consumers suffered from the breach—every breach creates a harm, direct or indirect, large or small. The mere fact it happened, shows some slight misstep in the company's security. That's a fact. What is it going to take to wake these companies up? What is it going to take for a court to realize that this is far from acceptable? Maybe the court needs to see for itself what it's like to get hit from one of these breaches. And no, there is nothing premeditated here. Back in high school, our curriculum required us to study Sharon Creech and her novel, "Walk Two Moons," and if there's anything that can be taken away from it, it's that you "don't judge a man until you've walked two moons in his moccasins." Yes, we are talking to you Judge Jones. [GN] ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2019. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. 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