/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/191212.mbx C L A S S A C T I O N R E P O R T E R Thursday, December 12, 2019, Vol. 21, No. 248 Headlines ADVANCED MICRO: Notice Protocol in Dickey Suit Approved AHOLA CORPORATION: Jones Challenges Improper Account Withdrawals ALAMEDA, CA: Babu et al. Seek to Certify Class & Subclass ALLIED UNIVERSAL: Calixto Seeks to Recover Unpaid Overtime Wages ALLSTATE INSURANCE: Insurance Policy Conflicts With MVFRL, Says Ct. AMERICAN EXPRESS: Settlement in Singer Suit Gets Prelim. Approval AMERICARE CERTIFIED: Denial of Bids to Dismiss & Stay Badzio Upheld AMI LIVONIA: Nolan Seeks to Certify Class of Terminated Employees ARSTRAT LLC: Marchese Files FDCPA Suit in E.D. New York ATLANTA NETWORK: Faces Guglielmo ADA Class Action in NY AUTO-OWNERS INSURANCE: Lammert et al. Seek to Certify Class Action AXIOM DEBT: Canfield May Serve Complaint via Ca. Secretary of State BAYER HEALTHCARE: Grider Sues Over Mislabeling of Sunscreens BBVA COMPASS: Certification of Non-US Citizens Class Sought BEAUTY PLACE: Violates ADA, Guglielmo Suit Asserts BG RETAIL: Mendez Files ADA Suit in S.D. New York BOARD OF SELECTMEN: Court Denies Class Certification BOWLING SUPERMARKET: Mijares Seeks OT Wages for Cleaning Employees CADENCE BANCORPORATION: Faces Anthony Securities Suit in Texas CANADA GOOSE: Calcano Files Suit Under Disabilities Act CANADA: Victoria Withdraws Motion Calling for Class Action CAPITAL ONE BANK: Faces Childers Suit Alleging Violation of TCPA CARNIVAL CORP: Wolfe Appeals S.D. Florida Ruling to 11th Circuit CAVALRY PORTOFOLIO: Kendrick Files FDCPA Suit in E.D. Kentucky CENTRIC BRANDS: Guglielmo Suit Asserts ADA Breach CHICAGO, IL: Must Reply to Ali's Bid to Certify Class by Feb. 26 CISION LTD: Faces Kent Suit Over Proposed Sale to Platinum Equity CLAUDIA RODAS: Withheld Workers' Earned & OT Wages, Ferreira Says COINBASE, INC: Leidel Seeks to Certify Settlement Class COMENITY BANK: Court Denies Bid to Remand Identity Theft Suit COOK COUNTY, IL: Court Denies Bid to Certify Class in Alicea Suit COOK COUNTY, IL: Elizarri Seeks to Certify Class of Detainees DEMOCRATIC NATIONAL: 11th Circuit Affirms Class Action Dismissal DIGNITY HEALTH: Judge Refuses to Approve $100MM Settlement DON VITO OZUNA: Court OKs $375,000 Settlement in Camilo Case EATON CORP: 2nd Circuit Affirms Dismissal of SC Retirement Suit EAZE SOLUTIONS: Court Orders Arbitration in Williams TCPA Suit ELIE TAHARI: Dominguez Files ADA Class Action in NY EMPOWER HEALTHCARE: Court Dismisses King FLSA Suit with Prejudice ENAGIC USA: Final Approval of Class Action Settlement Sought FAIRWAY GOLF: Class Certification in Medina Suit Affirmed FAMILY RANCH: Alvino Seeks to Recover Unpaid Wages and Penalties FAT BRAIN TOYS: Guglielmo Files Class Suit Under ADA FEDCHEX RECOVERY: Castle Seeks to Certify Illinois Residents Class FH CANN: Violates FDCPA When Collecting Debt, Fredrick Claims FILOBLU USA: Faces Mahoney ADA Class Action in Pa. FIRST ADVANTAGE: Dossett FCRA Suit Removed to N.D. Georgia FIRST COUNTY BANK: Moskowitz Sues Over Charging of NSF & OD Fees FIRST NATIONAL: Bid to Compel Doc Production in Lundquist Denied FLAGSTAR BANK: Court Certifies Class in Kivett Suit FLORIDA: Unconstitutionality of Sections 11.066(3) & (4) Affirmed GC SERVICES: Jawaid Files Suit Asserting FDCPA Violation GENERAL NUTRITION: Ruling on OT Compensation Multiplier Affirmed GOOD SAMARITAN: Court Denies Class Certification Bid as Moot HALLMARK RETAIL: Dominguez Files ADA Suit in S.D. New York HANDY TECHNOLOGIES: Fischler Sues Over Blind-Inaccessible Web Site HEADWAY TECHNOLOGIES: Fixes Prices of HDD Suspension, Burke Says HEALTHY HALO: Gordon Suit Moved to Eastern District of Washington HEALTHY HALO: Martin Sues Over Unsolicited Ads That Violate TCPA HERR FOODS: Mahoney Files ADA Suit in Pennsylvania HOT TOPIC: Dominguez Files ADA Suit in S.D. New York HR PARKING: Summary Judgment Bid in Fernandez FLSA Suit Denied INDOCHINO APPAREL: Calcano Files ADA Suit in S.D. New York JAGGED PEAK: Sabatini Challenges Proposed Sale to Parsley Energy JETSMARTER, INC: Court Sends Worthington Suit to Arbitration JPMORGAN CHASE: Final Approval of $5M Rotondo Suit Deal Recommended JUST BRANDS: Faces Class Action Over JustCBD Gummy Candy JUUL LABS: Jefferson PSD Sues Over Sale of E-Cigarettes to Minors KNEIPP CORPORATION: Mahoney Files ADA Suit in E.D. Pennsylvania LA PECORA: Reeves Suit Settlement Gets Initial Court Approval LACOSTE USA: Violates ADA, Dominguez Suit Asserts LAS SIRENAS: Cisneros Seeks to Recover Unpaid Overtime Wages LIBRE TECHNOLOGY: Court Certifies Class in Hudson Case LOAD TRAIL: Lopez Seeks to Recoup Unpaid Overtime Pay for Welders LSG GROUP LLC: Frisby Sues in N.D. Ill. for Violating BIPA & FLSA LYFT INC: ILRCSF Moves to Certify Class of PWDs, Who Need WAVs MADEWELL INC: Mendez Files ADA Suit in S.D. New York MCKESSON CORP: Opioid Case Settlement Reached Prior to Trial MDL 1720: Court Denies Bid to Dismiss Antitrust Suit MDL 2492: Rangel Suit v. NCAA Over Health Issues Consolidated MDL 2804: National Opioid Settlement Moving in Federal Dist. Court MDL 2909: Sabeehullah Class Suit Over Fairlife Milk Consolidated MDL 2909: Salzhauer Class Suit Over Fairlife Milk Consolidated MILLER MAYER: Must Face Class Action Over Investment Scam MONAT GLOBAL: Judge Refuses to Dismiss Hair Product Class Action MONSANTO CANADA: Faces B.C. Roundup Suit Amid U.S. Class Actions MYER: Class Action Decision No Game-Changer NCAA: Manning Sues Over Student-Athletes' Health & Safety NEBRASKA FURNITURE: Faces Guglielmo Suit Over ADA Breach NEW YORK, NY: Astacio Files Civil Rights Suit in E.D. New York OFFICE DEPOT: Nasco Sues Over Unsolicited Texts That Violate TCPA OLDCASTLE APG: Jackson Files FDCPA Suit in N.D. Georgia OM JOLIET: Faces Johnson Suit Over Unlawful Use of Biometric Data ONCOSEC MEDICAL: Alpha Holdings Files Class Action in Nevada OREGON: Awaits Decision on Breach of Contract Lawsuit PANASONIC CORP: Seeks Decertification of Cartel Class Action PC SHIELD: Court Grants Renewed Motion for Class Certification PEARL DINER: Sued by Baten Rojas for Violating FLSA and NYLL PIZZA HUT: Franchisees to Pay $6MM to End TCPA Class Action PLAYMOBIL USA: Guglielmo Files ADA Suit in NY RAMCO ENTERPRISES: Pantoja Suit Remanded to Monterey Superior Court RENOVATE AMERICA: Denial of Arbitration Bid in Nemore Suit Affirmed RESIDEO TECHNOLOGIES: Faces St. Clair Securities Suit in Minn. RYDER INTEGRATED: Ct. OKs Amended Settlement Agreement in Eure Suit SALEM COUNTY, NJ: Faces Class Action Over Illegal Strip Searches SAMSUNG ELECTRONICS: Summary Judgment in Antitrust Suit Upheld SRA ASSOCIATES: Genovese Files Class Suit Under FDCPA STARBUCKS CORP: Certification of Starbucks Employees Class Sought SUBARU OF AMERICA: Faces Class Action Over Defective Windshields TACO MADRE: Maldonado Seeks to Recover Unpaid Overtime Wages TEVA PHARMACEUTICALS: St. Petersburg ERS Suit Moved to D. Conn. TEXAS DE BRAZIL: Non-PAGA Claims in Chavez Dismissed w/o Prejudice TIDY SERVICES: Fischler Files ADA Suit in E.D. New York TWITTER INC: Kaplan Fox Files Securities Class Action in Calif. UNIFIN INC: Berkowitz Files FDCPA Suit in E.D. New York UZBEK LOGISTICS: Class of Drivers Certified in Kopaleishvili Suit VOYA FINANCIAL: Continues to Defend Goetz Class Action VOYA FINANCIAL: Still Defends Barnes COI Litigation VOYA FINANCIAL: Zhou Class Suit Underway in Colorado WATTS HAY COMPANY: Garcia Files Suit in Cal. Super. Ct. WATTS REGULATOR: Accounting of Settlement Funds in Klug Ordered WELLS FARGO: Loughrans Suit Stayed Pending Grundy Case WFS EXPRESS: Temporary Stay of Bautista Suit Extended for 120 Days WILLIAMS COMPANIES: Fairchild Seeks Overtime Wages for Inspectors WORLD BANK: D.C. Court Dismisses Zhan Suit Without Prejudice XPO LOGISTICS: Court Denies Class Certification Bid in "Alvarez" YOUNG LIVING: Penhall Files Fraud Class Suit in S.D. Ca. [*] Cybersecurity Class Actions in Canada on the Rise [*] ERGs May Raise Workplace Discrimination Concerns [*] Firm Sees Dramatic Rise in N.Y. Website Accessibility Suits ********* ADVANCED MICRO: Notice Protocol in Dickey Suit Approved ------------------------------------------------------- In the case, TONY DICKEY AND PAUL PARMER, individually and on behalf of all others similarly situated, Plaintiffs, v. ADVANCED MICRO DEVICES, INC., a Delaware corporation, Defendant, Case No. 4:15-cv-04922-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California, Oakland Division, has issued an order regarding the class members who purchased from Amazon.com. As discussed in colloquy with the Court during the Oct. 3, 2019 hearing, Amazon, citing customer privacy concerns, has refused to provide relevant customer contact information to the Court-approved settlement administrator in the case, Angeion Group. Rather than burden the Class and the judiciary with a subpoena enforcement fight in another District Court, the Parties and Amazon have jointly agreed, subject to Court approval, to an alternative notice protocol for the Class members who purchased the at-issue AMD product via Amazon.com. The parties note that the protocol is intended to be substantively identical to the protocol approved by the Court, and successfully implemented, in In Re: Lenovo Adware Litigation, No. 4:15-md-02624-HSG, Dkt. 248-2 (N.D. Cal. Feb. 14, 2019). The Parties propose -- and represent to the Court that Amazon has agreed to implement -- a protocol wherein Amazon will send an email on Notice Regarding Class Action Settlement to its previously-identified list of customers that are potential Class members. The Parties believe that the protocol is both in the best interest of the Class and also preserves the resources of the federal judiciary. Consequently, the Parties respectfully requested, and Judge Gilliam approved, that the Parties will request that Amazon comply with the protocol described in the Parties' stipulation, and will advise the Court if Amazon does not implement the protocol described in the Parties' stipulation. A full-text copy of the Court's Nov. 6, 2019 Order is available at https://is.gd/swjZzP from Leagle.com. Tony Dickey & Paul Parmer, Plaintiffs, represented by Lily E. Hough -- lhough@edelson.com -- Edelson PC, Benjamin Scott Thomassen -- bthomassen@edelson.com -- Edelson P.C., Brandt Silver-Korn -- bsilverkorn@edelson.com -- Gregory Scott Dovel -- greg@dovel.com -- Dovel and Luner, Rafey Sarkis Balabanian -- rbalabanian@edelson.com -- Edelson PC, Simon Carlo Franzini -- simon@dovel.com -- Dovel and Luner & Todd M. Logan -- tlogan@edelson.com -- Edelson PC. Advanced Micro Devices, Inc., Defendant, represented by Matthew David Powers -- mpowers@omm.com -- O'Melveny & Myers LLP, Edmundo Clay Marquez -- cmarquez@omm.com -- O'MELVENY & MYERS LLP & Kelsey M. Larson -- klarson@omm.com -- O'MELVENY & MYERS LLP. AHOLA CORPORATION: Jones Challenges Improper Account Withdrawals ---------------------------------------------------------------- BRIGITTE JONES, Individually and on behalf of all others similarly situated, and DENNIS SEAMAN CO. L.P.A. d/b/a SEAMAN & ASSOCIATES, Individually and on behalf of all others similarly situated v. THE AHOLA CORPORATION and CACHET FINANCIAL SERVICES, Case No. CV 19 924236 (Ohio Com. Pleas, Cuyahoga Cty., Oct. 30, 2019), challenges the unlawful practices and actions of the Defendants, which caused improper withdrawals to be taken on employees' bank accounts causing the Plaintiffs to suffer a loss of funds. Plaintiff Brigitte Jones brings the lawsuit, individually and as representative of all others similarly situated employees ("Employee Class") and Plaintiff Dennis Seaman Co. L.P.A. d/b/a Seaman & Associates, individually, and as representative of all others similarly situated employers ("Employer Class"). Ahola is a payroll and H.R. processing company that markets itself as being efficient, accurate, and easy with seamless integration with time/attendance, with a total workforce management package. Ahola provides payroll processing services to small to mid-size corporate and institutional clients like Plaintiff Seaman. Ahola offers full-service direct deposits that allow Employers to get their funds directly to employee bank accounts. Plaintiff Seaman contracted with Ahola to process and issue payment of their employee payroll, which included directly depositing funds into employee's individual bank accounts. The Plaintiffs allege that the Defendants failed to properly process payroll payments, wrongfully withheld payroll funds, and fraudulently or negligently misrepresented the events that took place surrounding their failure to deposit payroll payments. The Plaintiffs contend that the Defendants had a responsibility to Plaintiff Jones and each member of the Employee Class of similarly situated employees as third-party beneficiaries to the contract between the Defendants and Plaintiff Seaman & Associates, to properly process, distribute, and deposit payroll checks. Ahola is a corporation organized and existing according to the laws of the State of Ohio and is duly licensed to conduct business in the State of Ohio. Cachet is a California corporation with its principal offices in Pasadena, California.[BN] The Plaintiffs are represented by: David L. Meyerson, Esq. SEAMAN & ASSOCIATES 1400 Rockefeller Building 614 West Superior Avenue Cleveland, OH 44113 Telephone: (216) 696-1080 Facsimile: (216) 696-3177 E-mail: dmeyerson@seamanatty.com - and - Shaun H. Kedir, Esq. KEDIR LAW OFFICES LLC 1400 Rockefeller Building 614 West Superior Avenue Cleveland, OH 44113 Telephone: (216) 696-2852 Facsimile: (216) 696-3177 E-mail: shaunkedir@kedirlaw.com ALAMEDA, CA: Babu et al. Seek to Certify Class & Subclass --------------------------------------------------------- In the class action lawsuit styled as ASHOK BABU, ROBERT BELL, IBRAHIM KEEGAN-HORNSBY, DEMAREA JOHNSON, BRANDON JONES, STEPHANIE NAVARRO, ROBERTO SERRANO, and ALEXANDER WASHINGTON on behalf of themselves and all others similarly situated, the Plaintiffs, vs. COUNTY OF ALAMEDA; GREGORY J. AHERN in his official capacity as Sheriff of the Alameda County Sheriff's Office; KARYN TRIBBLE in her official capacity as Director of the Alameda County Behavioral Health Care Services Agency; and DOES 1 to 20, inclusive, the Defendants, Case 5:18-cv-07677-NC (N.D. Cal.), the Plaintiffs will moved the Court on January 22, 2020, for an order: 1. certifying that this action is maintainable as a class action under Federal Rules of Civil Procedure 23(a) and 23(b)(2) as to each of Plaintiffs’ causes of action; 2. certifying a class of: "all adults who are now, or in the future will be, incarcerated in the Alameda County Jail" (Inmate Class); 3. certifying a subclass of: "all qualified individuals with a psychiatric disability, as that term is defined in 42 U.S.C. section 12102, 29 U.S.C. section 705(9)(B), and California Government Code section 12926(j) and (m), and who are now, or will be in the future, incarcerated in the Alameda County Jail" (Disability Subclass); and 4. certifying Plaintiffs as representatives of the Inmate Class and named Plaintiffs Babu, Bell, Keegan-Hornesby, Johnson, Jones, Navarro, and Washington as representatives of the Disability Subclass and their counsel of record as class counsel for the Inmate Class and Disability Subclass. The Plaintiffs have alleged that the Alameda County Jail system is broken, especially when it comes to the way it treats people with psychiatric disabilities. The Plaintiffs' complaint for injunctive and declaratory relief.[CC] Attorneys for Plaintiffs Jeffrey L. Bornstein, Esq. Ernest Galvan, Esq. Kara J. Janssen, Esq. ROSEN BIEN GALVAN & GRUNFELD LLP 101 Mission Street, Sixth Floor San Francisco, CA 94105-1738 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 E-mail: jbornstein@rbgg.com egalvan@rbgg.com kjanssen@rbgg.com Attorneys for the Defendants are: Gregory B. Thomas, Esq. Temitayo O. Peters, Esq. BURKE, WILLIAMS & SORENSEN, LLP 1901 Harrison Street, Suite 900 Oakland, CA 94612-3501 Telephone: (510) 273-8780 Facsimile: (510) 839.9104 E-mail: gthomas@bwslaw.com tpeters@bwslaw.com - and - Paul B. Mello, Esq. Samantha D. Wolff, Esq. HANSON BRIDGETT LLP 425 Market Street, 26th Floor San Francisco, CA 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 E-mail: pmello@hansonbridgett.com swolff@hansonbridgett.com ALLIED UNIVERSAL: Calixto Seeks to Recover Unpaid Overtime Wages ---------------------------------------------------------------- LEXLY CALIXTO, an individual, Plaintiff v. ALLIED UNIVERSAL, a business entity of unknown organization; UNIVERSAL PROTECTION SERVICE, LP, a California Limited Partnership; BRIAN RABOIN, an individual; and DOES 1 through inclusive, Defendants, Case No. 19STCV40354 (Cal. Super., Nov. 8, 2019), seeks recovery of unpaid overtime wages, statutory penalties, interest, costs, and attorney's fees, and injunctive relief pursuant to the California Labor Code. Allied Universal employed the Plaintiff from June 13, 2014, to August 20, 2019. Universal Protection is a private security company in the United States.[BN] The Plaintiff is represented by: Thomas M. Lee, Esq. LEE LAW OFFICES, APLC 1435 Wilshire Blvd., Suite 2400 Los Angeles, CA 90010 Telephone: 213 251 5533 Facsimile: 213 251 5534 E-mail: thomas@thomasmlee.com - and - Barry G. Florence, Esq. LAW OFFICES OF BARRY G. FLORENCE 3435 Wilshire Blvd., Suite 2000 Los Angeles, CA 90010 Telephone: (213) 252 4969 Facsimile: (213) 232 4890 E-mail: bgf@bgflawoffices.com ALLSTATE INSURANCE: Insurance Policy Conflicts With MVFRL, Says Ct. ------------------------------------------------------------------- In the cases, SAMANTHA SAYLES, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Appellee, v. ALLSTATE INSURANCE COMPANY, Appellant. WILLIAM H. SCOTT, Appellee, v. TRAVELERS COMMERCIAL INSURANCE COMPANY, Appellant, Case Nos. 58 MAP 2018, 59 MAP 2018 (Pa.), Judge Debra Todd of the Supreme Court of Pennsylvania for the Middle District concluded that automobile insurance policy provision conflicts with 75 Pa.C.S. Section 1796(a) of the Pennsylvania Motor Vehicle Financial Responsibility Law ("MVFRL"), and is void as against public policy. The matter arises out of two separate lawsuits commenced in the courts of common pleas which were subsequently removed to federal district courts on the basis of diversity jurisdiction and thereafter consolidated for disposition by the U.S. Court of Appeals for the Third Circuit. In 2009, Appellee Scott was covered by an automobile insurance policy issued by Appellant Travelers, which contained a clause requiring Scott, if he filed a claim for first-party medical benefits, to submit, as often as Travelers reasonably requires to physical exams by physicians Travelers] selects. Scott was injured in an automobile accident on April 8, 2009. He sought reimbursement from Travelers under his automobile policy for his medical expenses, as they were first-party benefits, and Travelers responded to his request by sending a letter stating that he was to be scheduled to undergo an independent medical exam ("IME"), pursuant to the right Travelers claimed it possessed to require such an examination under the above-referenced clause in its insurance policy. Scott did not attend the scheduled IME, and Travelers discontinued paying Scott's outstanding medical bills. Scott then sued Travelers in the Court of Common Pleas of Dauphin County alleging, inter alia, that Travelers had breached its contract with him by imposing its IME requirement, which he contended conflicted with Section 1796(a) of the MVFRL, which requires a court order, based upon a showing of good cause by an insurer paying first-party benefits, to compel an insured to submit to an IME. ravelers responded by removing the action to the U.S. District Court for the Middle District of Pennsylvania, where the matter was assigned to Magistrate Judge Susan E. Schwab. Subsequently, both Scott and Travelers filed cross motions for summary judgment. Judge Schwab ultimately determined, based on her prediction that the Court would find that the Travelers policy provision requiring the IME conflicted with Section 1796(a), that it was void as against public policy. Thus, she concluded that Scott was entitled to judgment as a matter of law. Travelers sought, and was granted, the right to take an interlocutory appeal of the decision to the U.S. Court of Appeals for the Third Circuit. Sayles alleges that an auto insurance policy issued by Allstate under which she was insured contains an "examination requirement" that violates Section 1796 of the MVFRL. In 2015, Sayles was covered by an automobile policy issued by Appellant. In December 2015, Sayles was injured in an automobile accident, necessitating her medical treatment. She sought reimbursement of the amount of her medical bills under her policy's provision for the payment of first-party medical benefits, which obligated Allstate to pay her up to $5,000 per person. In response, Allstate sent a letter to Sayles' attorney requesting that she submit to an IME, which would be performed by a doctor of Allstate's choosing. Sayles never submitted to an IME, and Allstate refused to pay her claim for medical benefits. She subsequently sued Allstate in the Court of Common Pleas of Pike County, alleging, inter alia, that Allstate's conditioning her first-party medical benefits on the IME violated Section 1796(a). In response, Allstate successfully removed the action to the United States District Court for the Middle District of Pennsylvania. Allstate then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), which was adjudicated by the Honorable Richard A. Caputo of the Middle District of Pennsylvania. After reviewing the terms of Section 1796(a), as Judge Schwab had previously determined, Judge Caputo found the language of Section 1796(a) to prohibit the IME which Allstate requested. Judge Caputo denied Allstate's motion to dismiss. The Third Circuit consolidated Travelers' and Allstate's appeals. In these consolidated matters, the Court answers a certified question from the U.S. Court of Appeals for the Third Circuit: Whether an automobile insurance policy provision, which requires an insured seeking first-party medical benefits under the policy to submit to an independent medical exam whenever the insurer requires and with a doctor selected by the insurer, conflicts with Section 1796(a) of the MVFRL, such that the requirement is void as against public policy. Judge Todd rejects the Appellants' argument that Section 1796(a) imposes no mandatory duty on them as insurers with respect to how they may compel a policyholder who has filed a claim for first-party benefits to submit to an IME after the policyholder has refused the insurer's request to voluntarily do so, merely because it does not utilize the terms "insurer," or "shall." Having concluded that Section 1796(a) imposes mandatory obligations on insurers, the Judge turns to a comparison of the IME provisions contained in the Appellants' policies and the requirements of Section 1796(a); a plain reading of both indicates that they are in irreconcilable conflict. First, Section 1796(a) requires an insurer who wishes to compel a claimant for first-party medical benefits to undergo an IME to file a petition with a court of competent jurisdiction, and, also, to show good cause for the IME. In addition, any court order for an IME must give the insured "adequate notice of the time and date of the examination," as well as "state the manner, conditions and scope of the examination." Second, Section 1796(a) requires a judge to adjudicate the petition; however, the IME policy provisions contain no such requirement, and it is the insurer alone which decides when such a request is justified, and if the insured has adequately complied. Third, under Section 1796(a), if the judge does grant an insurer's request for the IME, the judge selects the physician who will perform the IME, and, importantly, sets the manner, conditions, and scope of the examination. However, the IME policy provisions allow the insurer to unilaterally select the physicians who will perform the IME, and, of great significance, set no limits on the scope or conduct of the IME, a process, as we have emphasized above, which impacts insureds' significant privacy interests. Fourth, the IME policy provisions allow the insurer to determine whether, as a result of the insured's alleged noncompliance with the conditions the insurer places on the conduct of the IME, the insured's benefits should be terminated, as they were in the cases before us. By contrast, Section 1796(a) vests this authority solely with the judge who orders the IME. Finally, the Judge must reject Allstate's contention that, because the Insurance Department has, by regulation, promulgated sample language for insurance policies governing medical claims for injuries caused by uninsured motorists which mirrors the language of the clauses at issue, it constitutes approval of the use of such policy language. In sum, then, these IME policy provisions manifestly conflict with, and are repugnant to, the statutory protections for individuals insured under automobile insurance policies regarding the conduct of IMEs as established by the General Assembly in Section 1796(a); consequently, they are void as against the public policy of the Commonwealth, rules Judge Todd. She, therefore, answers the certified question from the Third Circuit in the affirmative. The matter is returned to the U.S Court of Appeals for the Third Circuit. A full-text copy of the Court's Nov. 20, 2019 Opinion is available at https://is.gd/vpglsq from Leagle.com. David J. D'Aloia -- ddaloia@saiber.com -- SAIBER LLC, for Allstate Insurance Company, Appellant. Michael J. Grohs -- mgrohs@saiber.com -- SAIBER LLC, for Allstate Insurance Company, Appellant. Marc Wolin -- mwolin@saiber.com -- Saiber LLC, for Allstate Insurance Company, Appellant. Charles Kannebecker -- kannebecker@wskllawfirm.com -- Law Office of Charles Kannebecker, for Samantha Sayles, Appellee. James C. Haggerty, Haggerty, Goldberg, Schleifer & Kupersmith, P.C., for PA Association for Justice, Amicus Curiae. John J. McGrath, Palmer & Barr, P.C., for PA Defense Institute, et al, Amicus Curiae. Scott B. Cooper, SCHMIDT KRAMER P.C., for PA Association for Justice, Amicus Curiae. Patricia S. Dodszuweit, U.S. Court of Appeals for the Third Circuit, for U.S. Court of Appeals for the Third Circuit, Participants. Cheryl Ann Krause, US Court Of Appeals Third Circuit, for U.S. Court of Appeals for the Third Circuit, Participants. AMERICAN EXPRESS: Settlement in Singer Suit Gets Prelim. Approval ----------------------------------------------------------------- In the case, TARYN SINGER, individually and on behalf of all others similarly situated, Plaintiff, v. AMERICAN EXPRESS CENTURION BANK, Defendant, Case No. 7:17-cv-02507-VB ((S.D. N.Y.), Judge Vincent L. Briccetti of the U.S. District Court for the Southern District of New York granted the Plaintiff's unopposed Motion for Preliminary Approval of Proposed Class Action Settlement. Based on preliminary examination, the Judge concludes that the Settlement Agreement appears to be fair, reasonable and adequate and within the range of possible approval, that the Settlement Class should be certified for settlement purposes and that a hearing should be held after notice to the Settlement Class to determine whether the Settlement Agreement is fair, reasonable and adequate, and whether a settlement approval order and final judgment should be entered in this action, based upon that Settlement Agreement. Based upon the foregoing, the Judge preliminarily approved the Settlement Agreement. He conditionally certified, for settlement purposes only, the following Settlement Class under Federal Rule of Civil Procedure 23(a) and (b)(3): All holders of an American Express credit card issued by American Express Centurion Bank who: (a) between April 6, 2016 and July 28, 2016, received a billing statement from American Express that did not disclose that a late payment could trigger a penalty annual percentage rate on features or balances other than the purchase feature of their account; and (b) timely and properly rejected the arbitration provision in the Cardmember Agreement governing their account. The Judge appointed Bromberg Law Office, P.C., and the Law Office of Harley J. Schnall, as the counsel for the Settlement Class. The Fairness Hearing is set for April 24, 2020 at 11:00 a.m. The Notice shall be provided in accordance with the Settlement Agreement within 30 days following entry of the Order. The Settlement Administrator shall provide notice to the Settlement Class Members. The Internet Notice shall be posted and made available for download in .pdf format on a website, the domain name and content of which shall be subject to review and approval by American Express. The website shall be maintained by a third-party settlement administrator and shall be active and accessible until 120 days after the Effective Date. Comments or objections must be filed and mailed to the Class Counsel and American Express's Counsel not later than Feb. 20, 2020. The Settlement Class Members or their counsel intending to appear at the Settlement Hearing must file with the Court and serve on the Class Counsel and American Express's Counsel, no later than April 3, 2020. Any responses to objections to the Settlement Agreement and any papers in support of the Settlement and Fee Application shall be filed with the Court on or before April 17, 2020. All proceedings in the action are stayed until further order of the Court, except as may be necessary to implement the terms of the Settlement. A full-text copy of the Court's Nov. 20, 2019 Order is available at https://is.gd/Ej2CPs from Leagle.com. Taryn Singer, Individually and on behalf of all others similarly situated, Plaintiff, represented by Harley Jay Schnall, Law Office of Harley J. Schnall & Brian Lewis Bromberg -- brian@bromberglawoffice.com -- Bromberg Law Office, P.C. American Express Centurion Bank, Defendant, represented by Raymond Alexander Garcia -- rgarcia@stroock.com -- Stroock & Stroock & Lavan LLP. AMERICARE CERTIFIED: Denial of Bids to Dismiss & Stay Badzio Upheld ------------------------------------------------------------------- In the case, TAMARA BADZIO, ETC., ET AL., Respondents, v. AMERICARE CERTIFIED SPECIAL SERVICES, INC., ET AL., Appellants, 2017-06984, 2017-06985, Index No. 506155/16 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, Second Department, affirmed (i) the order dated June 15, 2017 that denied the Defendants' motion pursuant to CPLR 3211(a)(5) to dismiss; and (ii) the order dated June 22, 2017, of the same court, that denied the Defendants' motion pursuant to CPLR 2201 to stay all proceedings. The Plaintiffs, home health aides who were employed by the Defendants Americare Certified Special Services, Inc., and Americare, Inc., and who often worked 24-hour "live in" shifts, seek to recover damages for underpayment of minimum, overtime, and "spread of hours" wages in violation of the Labor Law and New York State Department of Labor wage orders and regulations. Plaintiff Badzio, a current Americare home health aide, commenced the action on behalf of herself and all other similarly situated employees on April 18, 2016. An amended complaint adding Larysa Salo, a former Americare home health aide, as a named Plaintiff was served on Jan. 30, 2017. Prior to serving their answer, the Defendants moved pursuant to CPLR 3211(a)(5) to dismiss so much of the amended complaint asserted by Badzio as it seeks damages for underpayment of wages prior to April 18, 2010, and so much of the amended complaint asserted by Salo as it seeks damages for underpayment of wages prior to Jan. 30, 2011, as time-barred by the six-year statute of limitations set forth in Labor Law Section 198(3). In opposition, the Plaintiffs contended that a prior putative class action commenced on behalf of Americare home health aides entitled Melamed v. Americare Certified Special Servs., Inc., in the Supreme Court, Kings County, under Index No. 503171/12, in which the class action allegations had been dismissed, tolled the limitations period. In an order dated June 15, 2017, the Supreme Court denied the Defendants' motion. It concluded that American Pipe tolling applied to successive class actions and, therefore, the Plaintiffs' claims were timely. Thereafter, the Defendants moved pursuant to CPLR 2201 to stay all proceedings in the action pending the determinations of appeals in actions entitled Andryeyeva v. New York Health Care, Inc., commenced in the Supreme Court, Kings County, under Index No. 14309/11, and Moreno v. Future Care Health Servs., Inc., commenced in the Supreme Court, Kings County, under Index No. 500569/13, or, alternatively, pursuant to CPLR 3103 for a protective order. In an order dated June 22, 2017, the Supreme Court granted a 30-day stay of discovery of class-wide payroll records and, in effect, denied, as academic, the alternative relief sought in the Defendants' motion. In a putative class action, inter alia, to recover damages for violations of Labor Law articles 6 and 19, the Defendants appeal from (1) an order of the Supreme Court, Kings County (Martin M. Solomon, J.), dated June 15, 2017, and (2) an order of the same court dated June 22, 2017. The Court finds that the Defendants demonstrated, prima facie, that so much of the amended complaint asserted by Badzio as seeks damages for underpayment of wages prior to April 18, 2010, and so much of the amended complaint asserted by Salo as seeks damages for underpayment of wages prior to Jan. 30, 2011, was time-barred. It also finds that no court has previously dismissed a class action involving the claims in the case based on the determination that the class action status was inappropriate. The Defendants' contention that all proceedings in the action should have been stayed pending the determinations of appeals in the actions entitled Andryeyeva v New York Health Care, Inc., commenced in the Supreme Court, Kings County, under Index No. 14309/11, and Moreno v Future Care Health Servs., Inc., commenced in the Supreme Court, Kings County, under Index No. 500569/13, has been rendered academic in light of the determination of those appeals. The Defendants' remaining contention is without merit. For the foregoing reasons, the Court affirmed. The one bill of costs is awarded to the Plaintiffs. A full-text copy of the Court's Nov. 20, 2019 Decision & Order is available at https://is.gd/Sc5HBT from Leagle.com. Peckar & Abramson, P.C., New York, NY (Kevin J. O'Connor -- KOConnor@pecklaw.com -- of counsel), for appellants. Beranbaum Menken LLP, New York, NY (Jason J. Rozger of counsel), for respondents. AMI LIVONIA: Nolan Seeks to Certify Class of Terminated Employees ----------------------------------------------------------------- In the class action lawsuit styled as DALE NOLAN, the Plaintiff, vs. AMI LIVONIA, LLC, et al., the Defendants, Case No. 2:19-cv-10773-BAF-APP ECF (E.D. Mich.), the Plaintiff moves the Court for an order on Nov. 27 2019: 1. certifying a class of: "all former employees who worked at or reported to the facility located at 36930 Industrial Road Livonia, Michigan 48150 (the Facility) until they were terminated, without cause on their part, on or about March 4, 2019 and thereafter, who do not file a timely request to opt-out of the class; 2. appointing Dale Nolan as Class Representative; 3. appointing Lankenau & Miller, LLP, The Gardner Firm, P.C., and The Sugar Law Center for Economic & Social Justice as Class Counsel; 4. approving the form and manner of Notice to the Class; and 5. granting other and further relief as the Court may deem proper. AMI Livonia is a metal parts stamping company.[CC] Attorneys for Plaintiff and the Proposed Class are: Mary E. Olsen, Esq. M. Vance McCrary, Esq. THE GARDNER FIRM, P.C. 182 St. Francis Street, Suite 103 Mobile, AL 36602 Telephone: (251) 433-8100 E-mail: molsen@thegardnerfirm.com vmccrary@thegardnerfirm.com - and - Stuart J. Miller, Esq. LANKENAU & MILLER, LLP 132 Nassau Street, Suite1100 New York, NY 10038 Telephone: (212) 581-5005 Facsimile: (212) 581-2122 - and - John C. Philo, Esq. Anthony D. Paris, Esq. Sugar Law Center for Economic & Social Justice 4605 Cass Ave., 2nd Floor Detroit, MI 48201 Telephone: (313) 993-4505 E-mail: jphilo@sugarlaw.org tparis@sugarlaw.org ARSTRAT LLC: Marchese Files FDCPA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against ARStrat, LLC. The case is styled as Collette P. Marchese, Roman Gonzalez, individually and on behalf of all others similarly situated, Plaintiffs v. ARStrat, LLC, Defendant, Case No. 2:19-cv-06858-KAM-LB (E.D.N.Y., Dec. 5, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. ARstrat is a collection and bad debt resolution provider for the healthcare industry.[BN] The Plaintiffs are represented by: Craig B. Sanders, Esq. David M. Barshay, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 706-5055 Email: csanders@sanderslawpllc.com dbarshay@barshaysanders.com ATLANTA NETWORK: Faces Guglielmo ADA Class Action in NY ------------------------------------------------------- A class action lawsuit has been filed against Atlanta Network Technologies, Inc. The case is styled as Joseph Guglielmo, on behalf of himself and all others similarly situated, Plaintiff v. Atlanta Network Technologies, Inc., Defendant, Case No. 1:19-cv-11191 (S.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Atlanta Network Technologies, Inc. offers online shopping services. The Company sells computer products, electronics, cameras, and office and home products, as well as provides marine products such as rafts, skiing, and boats.[BN] The Plaintiff is represented by: Russel Craig Weinrib, Esq. Stein Saks PLLC 285 Passaic St., Suite 5 Hakensack, NJ 07601 Phone: (201) 282-6500 Email: rweinrib@steinsakslegal.com AUTO-OWNERS INSURANCE: Lammert et al. Seek to Certify Class Action ------------------------------------------------------------------ GREGORY J. LAMMERT, JAMIE LAMMERT, LARRY REASONS, and SUSAN REASONS, Waverly D. Crenshaw, Jr. the Plaintiffs, vs. AUTO-OWNERS (MUTUAL) INSURANCE COMPANY, the Defendant, Case No. 3:17-cv-00819 (M.D. Tenn.), the Plaintiffs move the Court for an order on Dec. 6, 2019, for an order: 1. certifying the case as a class action: "all Auto-Owners' property insurance policyholders who made: (1) a structural damage claim for property located in the State of Tennessee; and (2) which resulted in an actual cash value payment during the class period from which "non- material depreciation" was withheld from the policyholder; or which should have resulted in an actual cash value payment but for the withholding of "non-material depreciation" causing the loss to drop below the applicable deductible"; 2. appointing Plaintiffs as class representatives; 3. appointing Plaintiffs' counsel for the class; 4. requiring the parties to meet and confer on the form and process for disseminating class notice and submit any disputes to the Court within 10 days of the certification order; and 5. providing all other relief requested that is just and to which Plaintiffs or the class may be entitled. The class period will vary by the type of coverage form in place for each policyholder, as follows: a. All policyholders with applicable claims having a date of oss on or after March 10, 2016 for property policies with a one-year "suit limitations" clause; b. All policyholders with applicable claims having a date of loss on or after April 9, 2015 for property policies with a two-year "suit limitations" clause. The proposed class excludes: a. Claims arising under the following Auto-Owners Policy Forms: "Labor Permissive" forms, including Forms 15542 (7-19), 57911 (7-19), and 57912 (7-19); "Builders Risk" coverage forms, including Forms CP 00 20 10 90; 16690 (7-14), 16691 (7-14), and 16695 (7-13); b. Any claims for which the applicable limits of insurance were exhausted by the initial actual cash value payment. c. The Court, its staff, and Plaintiffs' counsel.[CC] Attorneys for Plaintiffs and Putative Class Representatives are: T. Joseph Snodgrass LARSON KING, LLP 30 East Seventh St., Suite 2800 St. Paul, MN 55101 Telephone: (651) 312-6500 E-mail: jsnodgrass@larsonking.com - and - Gilbert McWherter, Esq. SCOTT & BOBBITT, PLC 341 Cool Springs Blvd, Suite 230 Franklin, TN 37067 Telephone: (615) 354-1144 E-mail: bmcwherter@gilbertfirm.com Attorneys for the Defendants are: John S. Hicks Charles C. McLaurin B AKER , D ONELSON , B EARMAN , C ALDWELL & B ERKOWITZ , PC 211 Commerce Street, Suite 800 Nashville, TN 37201 E-mail: jhicks@bakerdonelson.com cmclaurin@bakerdonelson.com - and - Todd A. Noteboom Peter J. Schwingler Jeffrey G. Mason Zane A. Gilmer S TINSON L EONARD S TREET LLP 50 South Sixth Street, Suite 2600 Minneapolis, MN 55402 E-mail: todd.noteboom@stinson.com jeffrey.mason@stinson.com zane.gilmer@stinson.com peter.schwingler@stinson.com AXIOM DEBT: Canfield May Serve Complaint via Ca. Secretary of State ------------------------------------------------------------------- In the case, DANIEL CANFIELD and REGAN SMITH, individually and on behalf of all others similarly situated, Plaintiffs, v. AXIOM DEBT LLC, a California limited liability company, Defendant, Case No. 19cv2015-MMA (JLB) (S.D. Cal.), Judge Michael M. Anello of the U.S. District Court for the Southern District of California granted the Plaintiffs' motion to permit alternate service on the Defendant via the California Secretary of State. On Oct. 20, 2019, Plaintiffs Canfield and Smith filed the putative class action against the Defendant, alleging violations of the Telephone Consumer Protection Act ("TCPA"). To date, the Defendant has not appeared in the action. On Oct. 31, 2019, the Plaintiffs filed a motion to permit alternate service on the Defendant via the California Secretary of State. The Plaintiffs contend that they have not been able to locate and serve the Defendant's designated agent at the address registered for personal service. They claim that on Oct. 23, 2019, their process server attempted to serve the Defendant's registered agent at the address listed on the California Secretary of State's website, 440 S. Melrose Dr., Suite 208, Vista, CA 92081. The process server informed the Plaintiffs' counsel that the address was invalid. They then attempted to serve the address listed on the Defendant's website (axiomdebt.com), which is the same for the registered agent, except for the suite number. The website indicates that the company's suite number is Suite 207, as opposed to 208. The process server attempted to serve Suite 207, but that address was also invalid. The process server returned the proof of non-service. The Plaintiffs assert that it appears that Axiom is intentionally using fake addresses to conceal its business activity. As a result, they seek leave to serve Defendant via the California Secretary of State. Pursuant to Section 17701.16(c) of the California Corporations Code, before service can be made via the Secretary of State, the plaintiff must demonstrate that: (1) the designated agent cannot with reasonable diligence be found at the address designated for personal delivery of the process;" and (2) the plaintiff shows by affidavit that the LLC "cannot be served with reasonable diligence upon the designated agent by hand in the manner provided in Section 415.10, subdivision (a) of Section 415.20, or subdivision (a) of Section 415.30 of the Code of Civil Procedure. Judge Anello finds that the Plaintiffs have satisfied the first requirement and have demonstrated that the designated agent cannot be found at the address designated for personal delivery of the process. In fact, the process server indicated that the address is invalid. With respect to the second requirement, although the Plaintiffs do not mention attempting service by hand or mail, the Judge is satisfied based upon the counsel's declaration that the Defendant cannot be served with reasonable diligence in the manner prescribed in Sections 415.10, 415.20(a), or 415.30(a) of California's Code of Civil Procedure. Because both addresses listed on the California Secretary of State's website and the Defendant's website are invalid, the Plaintiffs cannot serve the registered agent by hand or by mail. After learning that the address listed on the California Secretary of State's website was invalid, the Plaintiffs took additional steps to find an alternate address for service. After finding a different address on the Defendant's website, they learned that the new address was also invalid. The Plaintiffs have not been able to identify any other address for the designated agent for service of process. Accordingly, the Judge finds that the Plaintiffs have adequately demonstrated that process cannot be served on the Defendant with reasonable diligence. Based on the foregoing, Judge Anello granted the Plaintiffs' motion. The Plaintiffs may serve the Defendant by hand-delivering the summons and Complaint, as well as a copy of the Order, to the California Secretary of State. Service in this manner is deemed complete on the 10th day after delivery of the process to the Secretary of State. A full-text copy of the Court's Nov. 6, 2019 Order is available at https://is.gd/yUH9fJ from Leagle.com. Daniel Canfield, an individual & Regan Smith, an individual, individually and on behalf of all others similarly situated, Plaintiffs, represented by Mark Louis Javitch -- mark@javitchlawoffice.com. BAYER HEALTHCARE: Grider Sues Over Mislabeling of Sunscreens ------------------------------------------------------------ Ethan Grider and Kevin Terry individually and on behalf of all others similarly situated v. BAYER HEALTHCARE PHARMACEUTICALS INC., a Delaware corporation; BAYER HEALTHCARE LLC, a Delaware limited liability company; BAYER AG, a public limited company; BEIERSDORF, INC., a Delaware corporation; BEIERSDORF NORTH AMERICA, INC., a Delaware corporation; and BEIERSDORF AG, a public limited company, Case No. 2:19-cv-10342 (C.D. Cal., Dec. 5, 2019), seeks to stop the Defendants' unlawful conduct in the false, deceptive, and misleading labeling and marketing of their mineral-based sunscreen products. To obtain an unfair competitive advantage in the billion-dollar sunscreen market, the Defendants are exposing babies and children to harmful chemical-based ingredients hidden in their sunscreens by fraudulently passing them off as safe mineral-based ingredients, according to the complaint. The Defendants have reaped many millions of dollars through this fraudulent scheme based on a calculated business decision to put profits over people. The purported "Mineral-Based" products at issue are Coppertone Water Babies Mineral-Based Sunscreen Stick; Coppertone Water Babies Mineral-Based Sunscreen Lotion; Coppertone Kids Mineral Based Sunscreen Lotion; and Coppertone Sport Face Mineral-Based Sunscreen Lotion. Contrary to their labeling, the purported mineral-based sunscreen products contain chemical active ingredients, the Plaintiffs allege. In fact, the Products often contain a larger percentage of chemical active ingredients than mineral active ingredients. Through falsely, misleadingly, and deceptively labeling the Products, the Defendants sought to take advantage of consumers' desire for mineral-based sunscreens, while reaping the financial benefits of using less desirable chemical active ingredients in the Products. Defendants have done so at the expense of unwitting consumers, as well as Defendants' lawfully acting competitors, over whom the Defendants maintain an unfair competitive advantage, says the complaint. Plaintiff Connor Hauer purchased the Nutriar Immune Product in California within the last four years of the filing of this Complaint. The Defendants manufacture, market, advertise, label, and sell the Products throughout California and the United States.[BN] The Plaintiff is represented by: Ryan J. Clarkson, Esq. Matthew T. Theriault, Esq. Bahar Sodaify, Esq. CLARKSON LAW FIRM, P.C. 9255 Sunset Blvd., Suite 804 Los Angeles, CA 90069 Phone: (213) 788-4050 Fax: (213) 788-4070 Email: rclarkson@clarksonlawfirm.com sclarkson@clarksonlawfirm.com bsodaify@clarksonlawfirm.com - and - Christopher D. Moon, Esq. Kevin O. Moon, Esq. MOON LAW APC 600 West Broadway, Suite 700 San Diego, CA 92101 Phone: (619) 915-9432 Fax: (650) 618-0478 Email: chris@moonlawapc.com kevin@moonlawapc.com BBVA COMPASS: Certification of Non-US Citizens Class Sought ----------------------------------------------------------- In the class action lawsuit styled as Amitabho Chattopadhyay, et. al., the Plaintiffs, vs. BBVA Compass Bancshares, Inc. et al., the Defendants, Case No. 4:19-cv-01541-JST (N.D. Cal.), the Plaintiff will move the Court on January 22, 2020, for an order: 1. certifying these classes: "all non-United States citizens who applied or attempted to apply for a bank account with Simple Bank and were denied, or were deterred from applying for an account with Simple Bank, or who had an account with Simple Bank that was terminated, and who had a valid Social 4 Security Number (Covered Non-Citizens) from March 25, 2016 through the date of final judgment in this action" (Covered Period): (a) all Covered Non-Citizens who resided in California at any point during the Covered Period (the "California Class"); (b) all Covered Non-Citizens during the Covered Period (the "Out-of-State Class"). 2. appointing the Plaintiff as Class Representative; and 3. appointing Plaintiff's counsel as Class Counsel. The Plaintiff, a person with a valid Social Security Number, attempted to sign up for a checking account with Defendants and was denied solely because she was not a citizen of the United States. Defendants' denial of Plaintiff's attempt to register for an account was due to their policy which prohibits all non-citizens from registering an account with them, without any individualized inquiry, the lawsuit claims.[CC] Attorney for Plaintiff and the Proposed Class Erin L. Brinkman, Esq. UNITE THE PEOPLE 555 East Ocean Boulevard, Suite 205 Long Beach, CA 90802 Telephone: (888) 245-9393 E-mail: erin@unitethepeople.org BEAUTY PLACE: Violates ADA, Guglielmo Suit Asserts -------------------------------------------------- A class action lawsuit has been filed against Beauty Place Inc. The case is styled as Joseph Guglielmo, on behalf of himself and all others similarly situated, Plaintiff v. Beauty Place Inc., Defendant, Case No. 1:19-cv-11201 (S.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. TheBeautyPlace.com is an online retailer of professional beauty products for cosmetics, hair and skin care needs.[BN] The Plaintiff is represented by: Russel Craig Weinrib, Esq. Stein Saks PLLC 285 Passaic St., Suite 5 Hakensack, NJ 07601 Phone: (201) 282-6500 Email: rweinrib@steinsakslegal.com BG RETAIL: Mendez Files ADA Suit in S.D. New York ------------------------------------------------- A class action lawsuit has been filed against BG Retail, LLC D/B/A Famous Footwear. The case is styled as Himelda Mendez and on behalf of all persons similarly situated, Plaintiff v. BG Retail, LLC D/B/A Famous Footwear, Defendant, Case No. 1:19-cv-11166 (S.D.N.Y., Dec. 5, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Bg Retail, LLC operates 1,055 value-priced family footwear stores under the Famous Footwear banner in the US and Guam.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com BOARD OF SELECTMEN: Court Denies Class Certification ---------------------------------------------------- In the class action lawsuit styled as NICHOLAS G. BELEZOS, on behalf of himself and all others similarly situated, the Plaintiff, v. BOARD OF SELECTMEN of Hingham, Massachusetts, in their official capacity, on behalf of themselves and all others similarly situated, the Defendants, Case No. 1:17-cv-12570-MBB (D. Mass.), the Hon. Judge Marianne B. Bowler entered an order denying a motion seeking to certify a class consisting of: "any person who received motor vehicle traffic citations for violation of a special speed regulation lawfully made under the authority of Mass. Gen. L. ch. 90, section 18, i.e., operating a vehicle at a rate of speed in excess of a Speed Limit sign (R2-1), where (in fact) there is no such approved special speed regulation, and who, by reason thereof, suffered or experienced an adverse legal consequence, including payment of an assessment, surcharge, cost or fee in disposition of the citation, or whose admission or finding of responsibility have been or may be counted against them in the future for the purposes of adversely affecting their driving record or automobile insurance premium, or all these things, from September 28, 2011, to the date of the judgment in this action." The Court said, "In the motion for class certification, the plaintiff repeats the option that: the Court may choose to separate claims or issues within the complaint, and thereby specify and certify a damages subclass under Rule 23(b)(3). If the Court declines to certify a damages subclass under Rule 23(b)(3), then it may instead certify a liability-only subclass under Rule 23(b)(3). The Plaintiff provides no developed argument to support these three subclasses or any analysis regarding why such subclass certification is appropriate and satisfies Rule 23." The Plaintiff fails in his burden to "'affirmatively demonstrate his compliance' with Rule 23" regarding these proposed subclasses.[CC] BOWLING SUPERMARKET: Mijares Seeks OT Wages for Cleaning Employees ------------------------------------------------------------------ CARMEN J. MIJARES and other similarly situated individuals, Plaintiff, vs. BOWLING SUPERMARKET INC. and NORBERTO BENITEZ-CALDERON, individually, the Defendants, Case No. 9:19-cv-81523-XXXX (S.D. Fla., Nov. 7, 2019), seeks to recover money damages for retaliation and unpaid overtime wages, pursuant to the Fair Labor Standards Act. The Defendants employed Plaintiff as a cleaning employee from approximately November 1, 2018, to October 19, 2019, or 50 weeks. The Plaintiff and all other current and former employees similarly situated to Plaintiff worked in excess of 40 hours during one or more weeks on or after July 2016, without being properly compensated. The Defendants willfully failed to pay Plaintiff overtime hours at the rate of time and one-half her regular rate for every hour that he worked in excess of 40, the lawsuit says. Bowling Supermarket is a Hispanic/specialty supermarket and Mexican restaurant located at 1425 S. Main Street, Belle Glade, Florida.[BN] Attorney for the Plaintiff are: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Suite 1500 Miami, FL 33156 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com CADENCE BANCORPORATION: Faces Anthony Securities Suit in Texas -------------------------------------------------------------- ROBERT H. ANTHONY, JR., Individually and On Behalf of All Others Similarly Situated v. CADENCE BANCORPORATION, PAUL B. MURPHY, and VALERIE C. TOALSON, Case No. 4:19-cv-04269 (S.D. Tex., Oct. 30, 2019), is brought on behalf of persons and entities that purchased or otherwise acquired Cadence securities between July 23, 2018, and July 22, 2019, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934. Cadence is a financial holding company that focuses on middle-market commercial lending, complemented by retail banking and wealth management services, and purportedly provides banking services to businesses, high net worth individuals, and business owners. On July 22, 2019, the Company disclosed that "higher credit costs including net charge-offs of $18.6 million and loan provisions of $28.9 million" negatively impacted its second quarter 2019 financial results. On this news, the Company's stock price fell $3.75 per share, or over 19%, to close at $15.86 per share on July 22, 2019, thereby, injuring investors, including the Plaintiff. Throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects, the Plaintiff alleges. Specifically, the Plaintiff contends, the Defendants failed to disclose to investors that: (i) the Company lacked adequate internal controls to assess credit risk; (ii) as a result, certain of the Company's loans posed an increased risk of loss; (iii) as a result, the Company was reasonably likely to incur significant losses for certain loans; (iv) the Company's financial results would suffer a material adverse impact; and (v) as a result, the Defendants' positive statements about the Company's business, operations, and prospects were materially misleading and/or lacked a reasonable basis.[BN] The Plaintiff is represented by: Jeremy A. Lieberman, Esq. J. Alexander Hood, II, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com ahood@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP Ten South LaSalle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com CANADA GOOSE: Calcano Files Suit Under Disabilities Act ------------------------------------------------------- A class action lawsuit has been filed against Canada Goose US, Inc. The case is styled as Marcos Calcano on behalf of himself and all other persons similarly situated, Plaintiff v. Canada Goose US, Inc., Defendant, Case No. 1:19-cv-11227 (S.D.N.Y., Dec. 7, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Canada Goose markets a wide range of jackets, parkas, vests, hats, gloves, shells and other apparel through various avenues, both wholesale and direct to customer with their own retail stores.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com CANADA: Victoria Withdraws Motion Calling for Class Action ---------------------------------------------------------- Stewart Muir, writing for Times Colonist, reports that elected officials have a duty to consider every reasonable idea that comes their way. However, when one of those ideas doesn't stand up to consideration and everyone else is dropping it in favour of another tack, those politicians have an equal duty to let it go. At September's Union of B.C. Municipalities meeting, the annual convention of municipal mayors and councillors, these leaders delivered a three-part win for the cause of common sense: First, the idea of suing fuel companies was soundly rejected. Secondly, a motion from Port Moody calling on the B.C. government to enact legislation expediting climate lawsuits was defeated. Thirdly, Victoria withdrew a motion calling for a class-action lawsuit by B.C. municipalities. Instead, by a two-to-one margin, B.C. elected municipal officials approved a motion from Interior towns and cities stating climate lawsuits are "an inappropriate direction for B.C. communities" and calling for a collaborative approach to the very real challenges of climate change. Practicality and good sense won the day. And yet, Victoria Coun. Ben Isitt isn't letting it go. Afterward, in media, Isitt blamed the decision on the "division between major cities in southeastern B.C. and smaller municipalities in the interior of the province." Such words only sow dissent and create division where we need unity, while conveniently ignoring the fact many urban politicians voted against the climate litigation motions and the defeat was decisive. He then announced law firm Arvay Finlay is working to prepare yet another legal opinion to support local governments considering such lawsuits in an effort to "[recover] a portion of costs incurred in relation to climate change." This ignores his own city staff's legal and cost analysis of the option. We have undertaken several freedom-of-information requests of municipal governments considering these lawsuits, and in one found a letter from Victoria Mayor Lisa Helps to Toronto city Coun. Mike Layton, stating: "We've received some legal advice and cost estimates in camera and safe to say it is a big battle!" Mayor Helps was once a proponent of trying to sue energy firms, but dropped the idea after receiving legal opinions and hearing from local businesses. When the facts came in, she changed course. We asked for the Victoria staff reports referenced in the email, but were turned down. However, we did receive staff reports from cities such as Richmond and Burnaby, which reveal municipal staff are telling councils lawsuits are uncertain, will take many years to come to a conclusion, and will be expensive (for taxpayers). Importantly, such lawsuits are also divisive, preventing the parties involved from working together for years at a time as legal actions drag out. At the very time when collaborating on a response to climate change has never been more critical, Isitt wants to launch legal action that makes collaboration impossible. Launching lawsuits against oil and gas companies will do nothing to take on climate change. It is a feel-good PR exercise about winning points with voters that will stall climate-change action for years. It also ignores that they rely on oil and gas to operate their cities. Victoria has fleets of vehicles and countless services that rely on the very fuels Isett wants to sue over. The capital region's $800-million wastewater-treatment project is only possible because its power system will be backed up by natural gas -- a cleaner-burning, reliable fuel that will allow the system to make our waters cleaner for the next 100 years or more. Our oil and gas companies remain vital to Canada's economy and social fabric -- they literally fuel our lives. And, Canada's energy companies are among the world's most innovative when it comes to green technologies. By way of example, oil sands companies have cut emissions from their extraction processes by 30 per cent in the last 10 years alone, and are aiming to get even lower. Instead of lawsuits, we need our leaders from both the public and private sectors to gather together and inspire creative solutions. The challenge of our times will require solving environmental, social and governance problems at every level of government and in collaboration with industry. Lawsuits that drag on for decades, at unknown cost to local ratepayers, are not a viable path. Only the lawyers come out ahead. It's encouraging to see British Columbia's civic leaders recognizing this by embracing a more positive pathway to change. Most of them, at least. [GN] CAPITAL ONE BANK: Faces Childers Suit Alleging Violation of TCPA ---------------------------------------------------------------- Ryan Childers, individually and on behalf of others v. CAPITAL ONE BANK (USA), N.A., Case No. 3:19-cv-02318-H-JLB (S.D. Cal., Dec. 5, 2019), is brought for damages, injunctive relief, and any other available legal or equitable remedies resulting from the illegal actions of the Defendant in negligently, knowingly, and/or willfully contacting the Plaintiff and class members for alleged debt on their cellular telephones, in violation of the Telephone Consumer Protection Act, thereby, invading their privacy. The Defendant called the Plaintiff's cellphone attempting to collect a debt. The Plaintiff experienced a long delay before the Plaintiff was connected with a live person. Such a delay indicates use of an Automatic Telephone Dialing System. The Plaintiff unequivocally and explicitly informed the Defendant's representative, agent, or employee that the Plaintiff was represented by Attorney Shay regarding the debt. As such, the Plaintiff demanded Defendant cease all contact and communication with him. Accordingly, the Plaintiff asserts he revoked any implied consent previously given to receive the calls when he demanded that the Defendant stop calling him. Despite the Plaintiff's revocation of any implied consent, the Defendant called him again. Through the Defendant's conduct, the Plaintiff suffered an invasion of a legally protected interest in privacy, which is specifically addressed and protected by the TCPA, says the complaint. The Plaintiff is a citizen and resident of the State of California. The Defendant conducted business in the State of California and in the County of San Diego.[BN] The Plaintiff is represented by: Joshua B. Swigart, Esq. SWIGART LAW GROUP, APC 2221 Camino Del Rio South, Suite 308 San Diego, CA 92108 Phone: 866-219-3343 Fax: 866-219-8344 Email: josh@swigartlawgroup.com - and - Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 409 Camino Del Rio South, Suite 101B San Diego, CA 92108 Phone: (619) 222-7429 Fax: (866) 431-3292 Email: danielshay@tcpafdcpa.com CARNIVAL CORP: Wolfe Appeals S.D. Florida Ruling to 11th Circuit ---------------------------------------------------------------- Plaintiffs Erika Bruce, Shivon Harris, Miguel Hernandez, Sonia Hernandez, Samad Rainey and James Wolfe filed an appeal from a court ruling entered in their lawsuit entitled James Wolfe, et al. v. CARNIVAL CORPORATION, Case No. 1:18-cv-23463-KMW, in the U.S. District Court for the Southern District of Florida. As reported in the Class Action Reporter, on Aug. 24, 2018, this proposed class-action lawsuit was filed by James Wolfe and others against Carnival Corporation in the United States District Court for the Southern District of Florida relating to the marketing and sales of Carnival Vacation Protection product. The Plaintiffs purport to represent an alleged class of passengers, who purchased the Carnival Vacation Protection product. The "Wolfe" complaint alleges that Carnival Cruise Line concealed that it received "kickbacks" on the sale of the travel insurance portion of the product from an underwriter. The appellate case is captioned as James Wolfe, et al. v. CARNIVAL CORPORATION, Case No. 19-14326, in the United States Court of Appeals for the Eleventh Circuit.[BN] Plaintiffs-Appellants JAMES WOLFE, on behalf of themselves and all others similarly situated, et al., are represented by: Kimberly Lambert Adams, Esq. LEVIN PAPANTONIO THOMAS MITCHELL RAFFERTY & PROCTOR, PA 316 South Baylen St. Pensacola, FL 32502 Telephone: (850) 435-7000 E-mail: kadams@levinlaw.com - and - Francis J. Balint, Jr., Esq. Andrew S. Friedman, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 2901 N Central Ave., Suite 1000 Phoenix, AZ 85012-3311 Telephone: (602) 274-1100 E-mail: afriedman@bffb.com fbalint@bffb.com - and - Howard M. Bushman, Esq. Joseph M. Kaye, Esq. Adam Moskowitz, Esq. Adam A. Schwartzbaum, Esq. THE MOSKOWITZ LAW FIRM, PLLC 2 Alhambra Plaza, Suite 601 Coral Gables, FL 33134 Telephone: (305) 536-8220 E-mail: howard@moskowitz-law.com joseph@moskowitz-law.com adam@moskowitz-law.com adams@moskowitz-law.com - and - William F. Merlin, Jr., Esq. MERLIN LAW GROUP PA 777 S. Harbour Island Blvd., Suite 950 Tampa, FL 33602 Telephone: (813) 229-1000 E-mail: cmerlin@MerlinLawGroup.com Defendant-Appellee CARNIVAL CORPORATION, a foreign corporation, d.b.a. Carnival Cruise Lines, is represented by: Stuart H. Singer, Esq. BOIES SCHILLER & FLEXNER, LLP 401 E Las Olas Blvd., Suite 1200 Fort Lauderdale, FL 33301 Telephone: (954) 356-0011 E-mail: ssinger@bsfllp.com CAVALRY PORTOFOLIO: Kendrick Files FDCPA Suit in E.D. Kentucky -------------------------------------------------------------- A class action lawsuit has been filed against Cavalry Portfolio Services, LLC. The case is styled as Tracey Kendrick, individually and on behalf of all others similarly situated, Plaintiff v. Cavalry Portfolio Services, LLC, Defendant, Case No. 5:19-cv-00475-CHB (E.D. Ky., Dec. 5, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Cavalry Portfolio Services, LLC provides financial resolution services. Its services cover various areas, such as collection account and debt control.[BN] The Plaintiff is represented by: Yitzchak Zelman, Esq. MARCUS & ZELMAN LLC 1500 Allaire Ave, Suite 101 Ocean, NJ 07712 Phone: (845) 367-7146 Fax: (732) 298-6256 Email: yzelman@marcuszelman.com CENTRIC BRANDS: Guglielmo Suit Asserts ADA Breach ------------------------------------------------- A class action lawsuit has been filed against Centric Brands Inc. The case is styled as Joseph Guglielmo, on behalf of himself and all others similarly situated, Plaintiff v. Centric Brands Inc., Defendant, Case No. 1:19-cv-11193 (S.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Centric Brands Inc. is a lifestyle brand collective, bringing together creative minds from the worlds of fashion and commerce, sourcing, technology, marketing and digital.[BN] The Plaintiff is represented by: Russel Craig Weinrib, Esq. Stein Saks PLLC 285 Passaic St., Suite 5 Hakensack, NJ 07601 Phone: (201) 282-6500 Email: rweinrib@steinsakslegal.com CHICAGO, IL: Must Reply to Ali's Bid to Certify Class by Feb. 26 ---------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on December 5, 2019, in the case entitled Khalid Ali v. City of Chicago, et al., Case No. 1:19-cv-00022 (N.D. Ill.), relating to a hearing held before the Honorable Edmond E. Chang. The minute entry states that: -- Status hearing held. Both sides reports that fact discovery is closed and neither side is likely to retain experts, though the City will make a final decision per the schedule set in this entry; -- For now, on the Plaintiff's motion for class certification, the City's response is due by February 5, 2020; -- Plaintiff's reply is due by February 26, 2020; -- If the City believes it needs an expert to respond, then the City shall file a motion to vacate the briefing schedule by December 23, 2019; -- By December 12, 2019, both sides (and if needed, the City and the individual Defendant may file separate statements, if their interests diverge) shall file position papers on the proper sequence of litigation: the certification motion, the individual-defendant summary judgment motion (and perhaps cross−motion), the Monell summary judgment motion (and perhaps cross−motion), or some combination; -- It is possible for the defense to waive preclusive effect and to waive protection against one−way intervention. Collins v. Village of Palatine, Ill., 875 F.3d 839, 846 (7th Cir. 2017) (citing Costello v. BeavEx, Inc., 810 F.3d 1045, 1057 n.3 (7th Cir. 2016)); Wiesmueller v. Kosobucki, 513 F.3d 784, 787 (7th Cir. 2008); -- A tracking status hearing is set for December 16, 2019, at 8:30 a.m. (no appearance required for that hearing); -- Noticed motion date of December 10, 2019, is stricken; and -- Status hearing is set for March 3, 2020, at 9:00 a.m.[CC] CISION LTD: Faces Kent Suit Over Proposed Sale to Platinum Equity ----------------------------------------------------------------- Michael Kent, individually and on behalf of all others similarly situated v. CISION LTD., MARK M. ANDERSON, PHILIP A. CANFIELD, MARK D. EIN, L. DYSON DRYDEN, KEVIN AKEROYD, STEPHEN P. MASTER, SUSAN VOBEJDA, STUART YARBROUGH, DAVID KRANTZ, PLATINUM EQUITY ADVISORS, LLC, MJ23 UK ACQUISITION LIMITED, and CASTLE MERGER LIMITED, Case No. 1:19-cv-02229-UNA (D. Del., Dec. 5, 2019), stems from a proposed transaction, pursuant to which Cision will be acquired by affiliates of Platinum Equity Advisors, LLC, a Delaware limited liability company: MJ23 UK Acquisition Limited and Castle Merger Limited. On October 22, 2019, Cision's Board of Directors caused the Company to enter into an agreement and plan of merger with Platinum. Pursuant to the terms of the Merger Agreement, Cision's stockholders will receive $10 in cash for each share of Cision common stock they own. On December 3, 2019, the Defendants filed a proxy statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction, which scheduled a stockholder vote on the Proposed Transaction for December 19, 2019. The Plaintiff alleges that the Proxy Statement omits material information with respect to the Proposed Transaction, which renders the Proxy Statement false and misleading. Accordingly, the Plaintiff alleges that the Defendants violated the Securities Exchange Act of 1934 in connection with the Proxy Statement. Specifically, the Plaintiff contends, the Proxy Statement omits material information regarding the Company's financial projections. The Proxy Statement fails to disclose, for each set of projections: (i) all line items used to calculate Adjusted EBITDA; and (ii) a reconciliation of all non-GAAP to GAAP metrics. The Proxy Statement also omits material information regarding the analyses performed by the Company's financial advisors, Rothschild & Co. and Centerview Partners LLC, in connection with the Proposed Transaction. The Proxy Statement also omits material information regarding the Company's additional financial advisor, Deutsche Bank Securities Inc. The Proxy Statement fails to disclose the timing and nature of the past services Deutsche Bank provided to the parties to the Merger Agreement and their affiliates, says the complaint. The Plaintiff is the owner of Cision common stock. Cision is a leading global provider of earned media software and services to public relations and marketing communications professionals.[BN] The Plaintiff is represented by: Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Phone: (302) 295-5310 Facsimile: (302) 654-7530 Email: bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Phone: (484) 324-6800 Facsimile: (484) 631-1305 Email: rm@maniskas.com CLAUDIA RODAS: Withheld Workers' Earned & OT Wages, Ferreira Says ----------------------------------------------------------------- Wellington Ferreira, individually and on behalf of all other employees similarly situated v. CLAUDIA RODAS, MARVIN MARTINEZ and DUO-GASTROPUB CORP. (AKA DUO GASTRO PUB) jointly and severally, Case No. 1:19-cv-06868 (E.D.N.Y., Dec. 5, 2019), is brought under the Fair Labor Standards Act, the New York Labor Law, as well as the supporting New York State Department of Labor Regulations, in order to remedy the Defendants' wrongful withholding of the Plaintiff's earned wages and overtime compensation. The Plaintiff was not paid at an overtime rate of one-and-one-half his regular rate of pay for the overtime hours that he worked, says the complaint. The Defendants required the Plaintiff to work and never compensated them at all for his work. The Plaintiff was never provided with any wage statements, time sheets, or other documents showing the amount of hours they each worked every week and the amounts they were owed. The Plaintiff was employed by the Defendants as a kitchen worker from July 2019 until end of October 2019. The Defendants own and operate a restaurant located in Elmhurst, New York.[BN] The Plaintiff is represented by: Lina Stillman, Esq. STILLMAN LEGAL PC 42 Broadway, 12th Floor New York, NY 10004 Phone: (212) 203-2417 Web site: http://www.FightForUrRights.com/ COINBASE, INC: Leidel Seeks to Certify Settlement Class ------------------------------------------------------- In the class action lawsuit styled as BRANDON LEIDEL, individually, and on behalf of all others similarly situated, the Plaintiff, v. COINBASE, INC., a Delaware corporation d/b/a, Global Digital Asset Exchange (GDAX), the Defendant, Case No. 9:16-cv-81992-KAM (S.D. Fla.), the Class Representative asks the Court for an order: 1. preliminarily approving a settlement agreement among the Parties; 2. approving for the settlement agreement (a) the class notice for mailing and publication and (b) Proof of Claim Form; 3. scheduling a final approval hearing; and 4. certifying settlement class: "all Cryptsy account owners who held bitcoin, other digital currencies or cryptocurrencies, or any other asset on the Cryptsy platform as of November 1, 2015 to the present." Excluded from the Class are: (1) employees of Cryptsy, including its shareholders, officers and directors and members of their immediate families; (2) employees of COINBASE, including its shareholders, officers and directors and members of their immediate families; any judge to whom this action is assigned and the judge's immediate family; (3) persons who timely and validly opt to exclude themselves from the Class; and (4) any person or entity that opened an account at Cryptsy after October 4, 2015, which is the last date on which any of the Cryptsy used any of the accounts maintained on the Coinbase platform to exchange Bitcoin for U.S. dollars." The Settlement adds $962,500 to the Settlement Fund established and distributed to the Class in the Cryptsy Case. As it relates to attorney's fees, Class Counsel have committed that their fee application will not exceed 33.33% of the Common Fund, which is the same percentage approved by the Court in the Cryptsy Case. Therefore, the Settlement, when viewed in the context of these risks and the uncertainties involved with any litigation, makes the Settlement a strong result for the Class. The Settlement was negotiated at arm's length, by counsels who are well-informed of the issues in the Litigation, and are experienced in complex securities litigation. The class definition mirrors the class certified by the Court in the Cryptsy Case, with the exception that it excludes persons who opened an account at Cryptsy after the time that Coinbase closed Cryptsy's accounts at Coinbase. Plaintiff's Counsel believes that few, if any, persons, who were part of the Cryptsy Class will be excluded from the instant Class as a result of this limitation because Cryptsy effectively shut down on, or shortly after, November 1, 2015. The Class Representative has reached an agreement to settle this Class Action against Defendant. The Court previously certified a virtually identical class that asserted claims based on the same underlying conduct at issue here in the matter styled Leidel, et al. v. Project Investors, Inc. d/b/a CRYPTSY, Paul Vernon, and Lorie Ann Nettles, Case No. 9:16-cv-80060-MARRA (the Cryptsy Case). The Cryptsy Case concerned the conduct of Paul Vernon and Cryptsy, a cryptocurrency exchange, in unlawfully converting for their own use the cryptocurrency of the Cryptsy Class. On January 13, 2016, Plaintiff Leidel (and others) filed the Cryptsy Case. The Court appointed James D. Sallah as Receiver. Although unopposed, the Court certified the Class. Coinbase is a digital currency exchange headquartered in San Francisco, California. They broker exchanges of Bitcoin, Bitcoin Cash, Ethereum, Ethereum Classic, and Litecoin with fiat currencies in approximately 32 countries, and bitcoin transactions and storage in 190 countries worldwide.[CC] Counsel for the Plaintiff and the Class are: Marc A. Wites, Esq. WITES LAW FIRM 4400 North Federal Highway Lighthouse Point, FL 33064 Telephone: 954-933-4400 Facsimile: 954-354-0205 E-mail: mwites@witeslaw.com - and - David C. Silver, Esq. Jason S. Miller, Esq. SILVER MILLER 11780 W. Sample Road Coral Springs, FL 33065 Telephone: (954) 755-4799 Facsimile: (954) 755-4684 E-mail: DSilver@SilverMillerLaw.com JMiller@SilverMillerLaw.com COMENITY BANK: Court Denies Bid to Remand Identity Theft Suit ------------------------------------------------------------- The United States District Court of the Eastern District of California issued an Order denying Plaintiffs' Motion to Remand in the case captioned as, LORI ANN GONZALEZ, individually and on behalf of others similarly situated, a Plaintiff, v. COMENITY BANK, DOES 1-30, Defendant. Case No. 1:19-CV-00348-AWI-EPG. (E.D. Cal.) The Court held that the amount in controversy in this action properly includes the maximum statutory penalties for Gonzalez's claims under the Rosenthal Act and the CITA, as well as a reasonable estimate of future penalties under Section 530.8 of the California Penal Code. The Court further held that these penalties, combined with a reasonable estimate of future attorneys' fees attributable solely to Gonzalez's CITA claim, exceed the $75,000 jurisdictional minimum under 28 U.S.C. Section 1442(b), even without factoring in the other types of relief Gonzalez is seeking. Therefore, the Court concluded it properly has jurisdiction over this action pursuant to 28 U.S.C. Section 1332(a) and remand is not warranted. Plaintiff Lori Ann Gonzalez filed a putative class action in Fresno County Superior Court alleging that Defendant Comenity Bank routinely violates California statutes relating to identity theft in connection with credit cards branded for a clothing retailer called The Limited. Comenity removed the case to this forum based on diversity of citizenship pursuant to 28 U.S.C. Section 1441(a)-(b). The notice of removal asserts that Gonzalez and Comenity are citizens of different states and that the total amount of individual relief to which Gonzalez claims she is entitled if she prevails in this action exceeds $75,000, including actual and statutory damages for the Rosenthal Act claim, damages and penalties for claim under Section 530.8 of the California Penal Code, actual damages, injunctive relief and a civil penalty for the CITA claim and attorneys' fees. In moving for remand, Gonzalez does not dispute that she and Comenity are citizens of different states but contends that the Court lacks subject matter jurisdiction over this action and that remand is required under 28 U.S.C. Section 1447(c), because Comenity has not met its burden to show that the amount in controversy exceeds the $75,000 jurisdictional threshold set forth in 28 U.S.C. Section 1332(a)(1). Specifically, Gonzalez argues that using the maximum penalty for the Rosenthal Act claim and the maximum penalty for the CITA claim to calculate the amount in controversy, as Comenity proposes, is improper because the award amounts are discretionary and the Complaint does not expressly seek or allege facts to support the maximum award as to either claim. Further, she argues that Comenity improperly assumes that the penalty under Section 530.8 of the Penal Code will continue to accrue through trial. Finally, Gonzalez contends that Comenity's estimate of attorneys' fees cannot be credited because it overstates the incremental costs associated with litigating Gonzalez's individual CITA claim and the underlying methodology is unsound. Comenity argues that using the maximum penalty for the Rosenthal Act claim and the maximum penalty for the CITA claim to calculate the amount in controversy in this action is proper because recent Ninth Circuit decisions make it clear that the amount in controversy in a case encompasses all relief a court may grant on a complaint if the plaintiff prevails on all claims and because Gonzalez has not alleged or otherwise indicated that she is seeking less than the maximum penalty under either statute. Further, Comenity contends that it is proper to assume the penalty under Section 530.8 of the California Penal Code will continue to accrue through completion of the trial at the statutorily prescribed rate of $100 per day because the amount in controversy is to be estimated at the time of removal, without regard to future events such as settlement or discovery productions that might reduce the amount in controversy after removal. Finally, Comenity argues that at a rate of $300 per hour, Gonzalez could recover attorneys' fees in the amount of at least $28,725 on her individual CITA claim alone. Legal Standard Under 28 U.S.C. Section 1441, a defendant generally may remove an action filed in state court if a federal district court would have had original jurisdiction over the action. There are two bases for federal subject matter jurisdiction: (1) federal question jurisdiction under 28 U.S.C. Section 1331, which gives federal courts original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States and (2) diversity jurisdiction under 28 U.S.C. Section 1332, which gives federal courts original jurisdiction where the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs and there is complete diversity among the parties. Neither party disputes that the diversity requirement is satisfied in this case, so the only issue for the Court to resolve on this motion is whether it is more likely than not that the amount in controversy in connection with Gonzalez's individual claims exceeds the jurisdictional threshold of $75,000. Statutory Penalties Under the Rosenthal Act and the CITA Two of the statutes at issue in this action the Rosenthal Act and the CITA contain provisions that specify maximum penalties. The Rosenthal Act provides for a penalty ranging from a minimum of $100 to a maximum of $1,000 (b) while the CITA provides for a penalty of up to $30,000. Gonzalez contends that the statutory maximum penalties should not be included in the amount-in-controversy calculation because the Complaint does not expressly seek or allege facts justifying maximum penalties, and because Comenity has failed to meet its burden to show that maximum penalties will be awarded if Gonzalez prevails on her claims. Comenity, for its part, contends that it is proper to include maximum penalties in the amount-in-controversy calculation because, whether or not they are ultimately imposed, they are within the scope of relief that could be awarded and are, thus, at stake in the litigation. Further, Comenity argues that Gonzalez has not disclaimed maximum penalties in this case and that the facts alleged in the Complaint could justify maximum penalties under both of the statutes in question. The use of maximum statutory penalties in jurisdictional amount-in-controversy calculations was addressed by this district in Korn v. Polo Ralph Lauren Corp., 536 F.Supp.2d 1199 (E.D. Cal. 2008). Korn was a putative class action involving alleged violations of Section 1747.08 of the California Civil Code, which provides for a civil penalty not to exceed $250 for the first violation and $1,000 for each subsequent violation. Defendant removed the action to federal court under the CAFA and, in seeking remand, plaintiff took the position that the $1,000 maximum penalty set forth in the statute should not be included in the amount in controversy because the class plaintiffs could be awarded less than the maximum statutory penalty per violation. The court rejected that argument on the ground that it overlooked the critical distinction between the likely recovery per plaintiff and the actual issue before the court, the amount in controversy in the litigation. Further, the court found that the maximum penalty was properly included in the amount in controversy because plaintiff alleged that he and every other class member were entitled to civil penalties in amounts up to $1,000 per violation and had not stipulated that he would demand less than the maximum civil penalty. The Court therefore finds that the maximum penalty specified in a statute is properly included in a jurisdictional amount-in-controversy calculation where a plaintiff could reasonably recover that penalty. The amounts in controversy as to Gonzalez's claims under the Rosenthal Act and the CITA are evaluated accordingly below. Rosenthal Act Claim Gonzalez alleges that Comenity violated the Rosenthal Act through a persistent, frequent, willful and knowing failure to notify debtors including herself that claims of identity theft must be submitted in writing. Gonzalez also alleges that she received multiple telephone calls from Comenity seeking to collect on the credit card account at issue here, that Comenity maintains a pattern and practice of failing to inform debtors who make oral claims of identity theft that the claims must be in writing and that Comenity's practices present a continuing threat to Gonzalez and others unless enjoined and restrained. While awards vary, the allegations in the Complaint, including, for example, the allegation that Comenity called Gonzalez on more than one occasion, appear sufficient, in light of relevant case law, to show that Comenity's conduct was willful and knowing and that Gonzalez could reasonably recover the maximum penalty under the Rosenthal Act in this action. Therefore, the Court held that the Complaint puts the maximum penalty under the Rosenthal Act at stake in this action and assigns a value of $1,000 to Gonzalez's individual claim for a penalty under the Rosenthal Act for purposes of the amount-in-controversy calculation. CITA Claim The CITA provides for a civil penalty, in addition to any other damages, of up to $30,000 if the victim establishes by clear and convincing evidence all of the following: (A) That at least 30 days prior to filing an action or within the cross-complaint pursuant to this section, he or she provided written notice to the claimant at the address designated by the claimant for complaints related to credit reporting issues that a situation of identity theft might exist and explaining the basis for that belief. (B) That the claimant failed to diligently investigate the victim's notification of a possible identity theft. (C) That the claimant continued to pursue its claim against the victim after the claimant was presented with facts that were later held to entitle the victim to a judgment pursuant to this section. Gonzalez alleges that she twice provided timely written notice to Comenity that a situation of identity theft might exist, but that Comenity failed to diligently investigate her notification of identity theft and continued to pursue the claim against her after being presented with the facts underlying her claim of identity theft. Comenity cites a couple of cases in which the $30,000 statutory maximum was awarded to the prevailing plaintiff under the CITA. In Washington, 2018 WL 4005447, *3-*4, *7 (C.D. Cal. Feb. 26, 2018), the district court awarded the $30,000 statutory maximum penalty on default judgment based on a mere finding that the FAC has sufficiently alleged a claim under the CITA. Here again, Gonzalez has prayed without caveat for a penalty under a statute that specifies a maximum penalty, while also alleging facts that appear, in light of relevant case law, to be sufficient to justify the maximum award. The Court therefore held that Gonzalez could reasonably recover the maximum penalty if she prevails on her individual CITA claim in this action and assigned $30,000 to Gonzalez's claim for a penalty under CITA for purposes of the amount-in-controversy calculation. A full-text copy of the District Court's Order is available at https://tinyurl.com/y2cezkor from Leagle.com Lori Ann Gonzalez, individually and on behalf of others similarly situated, Plaintiff, represented by Jonathan Weiss -- jonathan.weiss@squirepb.com -- Law Office Of Jonathan Weiss & Tavy Alice Dumont -- tavy.dumont@dumontlaw.com -- Law Office of Tavy A. Dumont. Comenity Bank, Defendant, represented by Tomio B. Narita -- tnarita@snllp.com -- Simmonds & Narita, LLP, Margaret T. Cardasis -- mcardasis@snllp.com -- Simmonds & Narita LLP & Robert Travis Campbell -- tcampbell@snllp.com -- Simmonds & Narita LLP. COOK COUNTY, IL: Court Denies Bid to Certify Class in Alicea Suit ----------------------------------------------------------------- In the case, Elizabeth Alicea, Michelle Urrutia, Katina Ramos, and Jack Artinian, individually and on behalf of others similarly situated, Plaintiffs, v. County of Cook, and Thomas J. Dart, individually and in his official capacity as Sheriff of Cook County, Defendants, Case No. 18 C 5381 (N.D. Ill.), Judge Ronald A. Guzman of the U.S. District Court for the Northern District of Illinois, Eastern Division, denied the Plaintiffs' motion for class certification. The proposed class is defined as all persons who used a toilet in a holding cell in a courthouse in Cook County, Illinois since Aug. 8, 2016, wherein any part of the toilet is visible in the camera feed monitoring the cell. The Judge reviewed the parties' recent submissions, their briefs on class certification, and additional case law addressing the Fourth Amendment as it relates to searches of pretrial detainees and concludes that, as currently defined, the Plaintiff's class is unable to be certified. Upon further reflection, the Judge finds that, as currently defined, the proposed class is too broad to satisfy the commonality requirement. The Plaintiffs may renew their motion for class certification with a revised proposed class definition no later than Dec. 13, 2019. They are directed to provide citations to Seventh Circuit case law in support of their proposed definition in order to assist the Court in determining whether a summary judgment motion should be briefed before the renewed class certification motion. Given the amount of money and effort that will be expended in providing class notice as the Plaintiffs have outlined in their supplemental filing, the Plaintiffs are directed to address in their motion for class certification how their renewed proposed class definition incorporates the anticipated evidence in the case. The Defendants may either respond to the renewed motion for class certification or file a motion seeking to proceed first with a determination on the merits. Either way, the Defendants have until Jan. 8, 2019 to submit their filing. At that time, the Court will review the parties' filings and issue an order as to how it will proceed. A full-text copy of the Court's Nov. 20, 2019 Memorandum Opinion & Order is available at https://is.gd/4HrB2G from Leagle.com. Elizabeth Alicea, Michelle Urrutia, Katina Ramos & Jack Artinian, individually, and on behalf of all others similarly situated, Plaintiffs, represented by Thomas A. Zimmerman, Jr. -- tom@attorneyzim.com -- Zimmerman Law Offices, P.C., Matthew C. De Re -- matt@attorneyzim.com -- Zimmerman Law Offices, P.c., Nickolas J. Hagman -- nick@attorneyzim.com -- Zimmerman Law Offices, P.C. & Sharon Harris -- sharon@attorneyzim.com -- Zimmerman Law Offices, P.C. County Of Cook & Sheriff Thomas J. Dart, individually, and in his official capacity as Sheriff of Cook County, Defendants, represented by Elizabeth A. Ekl -- eekl@reiterburns.com -- Reiter Burns LLP, Terrence Michael Burns -- tburns@reiterburns.com -- Reiter Burns LLP, Daniel Jerome Burns -- kate@reiterburns.com -- Reiter Burns Llp, Daniel Matthew Noland -- dnoland@reiterburns.com -- Reiter Burns LLP, Katherine Carole Morrison -- kmorrison@reiterburns.com -- Reiter Burns LLP & Paul A. Michalik -- pmichalik@reiterburns.com -- Reiter Burns LLP. COOK COUNTY, IL: Elizarri Seeks to Certify Class of Detainees ------------------------------------------------------------- The Plaintiffs move the Court to order that their case titled Leoncio Elizarri and Gregory L. Jordan, individually and for others similarly situated v. Sheriff of Cook County and Cook County, Illinois, Case No. 1:17-cv-08120 (N.D. Ill.), may proceed as a class action for: All persons transferred to the Illinois Department of Corrections from the Cook County Jail whose property remains in the custody of the Sheriff of Cook County. The Sheriff of Cook County, pursuant to an official policy set out in the "Cook County Department of Corrections Inmate Information Handbook," seizes many items of personal property from detainees as they enter the Jail. The Plaintiffs contend that the Sheriff's actions have caused them and others similarly situated to be deprived of their property in violation of the Fifth and Fourteenth Amendments. The Plaintiffs seek equitable relief for members of the putative class, specifically that the Court order the Sheriff to establish and implement a procedure to return the detainee property that it is presently holding.[CC] The Plaintiffs are represented by: Kenneth N. Flaxman, Esq. Joel A. Flaxman, Esq. KENNETH N. FLAXMAN, P.C. 200 South Michigan Ave., Suite 201 Chicago, IL 60604 Telephone: 312) 427-3200 E-mail: knf@kenlaw.com jaf@kenlaw.com DEMOCRATIC NATIONAL: 11th Circuit Affirms Class Action Dismissal ---------------------------------------------------------------- Courthouse News Service reported that the 11th Circuit affirmed dismissal of a class action that claimed the Democratic National Committee was biased in favor of Hillary Clinton during the 2016 presidential primaries. [GN] DIGNITY HEALTH: Judge Refuses to Approve $100MM Settlement ---------------------------------------------------------- Ayla Ellison, writing for Becker's Hospital Review, reports that a California federal judge has refused to approve a deal requiring Dignity Health to pay more than $100 million to settle a class-action lawsuit accusing the San Francisco-based health system of using a religious Employee Income Retirement Security Act exemption it wasn't entitled to, according to Bloomberg Law. Dignity Health allegedly used the religious exemption to underfund its pension plan by $1.5 billion. Under the proposed settlement, Dignity would add $50 million in retirement plan funding in 2020 and 2021.The settlement also requires Dignity to fund the pension plan until 2024 and prohibits the health system from reducing accrued benefits because of a plan merger or amendment for 10 years. On Oct. 29, a federal judge in the Northern District of California refused to sign off on the deal because it contains a "kicker" clause. The clause would allow Dignity to keep the difference between the amount of attorneys' fees awarded by the court and the nearly $6.2 million in fees authorized by the settlement. "Although the fact is not explicitly stated in the Settlement, if the Court awards less than $6.15 million in fees, Defendants keep the amount of the difference and those funds are not distributed to the class," Judge Jon S. Tigar said, according to Bloomberg Law. "The Court concludes that this arrangement, which potentially denies the class money that Defendants were willing to pay in settlement -- with no apparent countervailing benefit to the class -- renders the Settlement unreasonable." Though the judge refused to sign off on the deal, he gave the parties an opportunity to revise the agreement and resubmit it for approval. [GN] DON VITO OZUNA: Court OKs $375,000 Settlement in Camilo Case ------------------------------------------------------------ The United States District Court for the Northern District of California, San Jose Division, granted Plaintiffs' Renewed Motion for Preliminary Approval of the Settlement in the case captioned RODRIGO CAMILO, et al., Plaintiffs, v. SEVERO C. OZUNA, et al., Defendants. Case No. 18-cv-02842-VKD. (N.D. Cal.). The Parties agree to settle this Class Action for a maximum and all-inclusive amount of $375,000 to be paid by Defendants. The Settlement Sum includes attorney's fees, costs and expenses directly related to the Class Action, including Settlement Administration costs estimated to be between $10,000 and $15,000. Plaintiffs Rodrigo Camilo, Alvaro Camilo, Ricardo Sanchez, and Jose Lopez filed this hybrid class action and collective action for alleged wage and hour violations under various provisions of the California Labor Code and the federal Fair Labor Standards Act (FLSA). Plaintiffs estimate that their potential recovery for all claims could be about $2 million. However, certain downward adjustments were made to account for the weakness of plaintiffs' claims for meal and rest break violations. Based on Mr. Ozuna's scribbled handwritten notes and payment method, plaintiffs' counsel estimates that defendants might be able to prove that class members are owed only $500,000. For settlement purposes, the Court conditionally certifies this matter as a collective action under the FLSA, 29 U.S.C. Seciton 216(b), for FLSA Class Members consisting of all individuals who are employed or who have been employed by defendants as non-exempt hourly employees involved in the tortilla and chip manufacturing process from May 14, 2015 through March 19, 2019 who allege violations under the FLSA as described in claim one of the Complaint. For settlement purposes, and pursuant to Rule 23, the Court preliminarily certifies a class of Rule 23 Class Members, consisting of all individuals who are employed or have been employed by defendants as non-exempt hourly employees involved in the tortilla and chip manufacturing process between May 14, 2014 and March 19, 2019 and who allege violations under California law as described in claims two through seven of the Complaint. Subject to plaintiffs with defendants' agreement making certain corrections noted below, the form and content of the proposed Notice of Proposed Class Action Settlement and the notice methodology described in the Amended Agreement, are approved. The Court finds the notice procedures set forth in the Amended Agreement to be the best notice practicable under the circumstances, and constitute due and sufficient notice, in full compliance with the requirements of Rule 23(c) of the Federal Rules of Civil Procedure, the Constitution of the United States, and any other applicable law. Any Rule 23 Class Member who wishes to be excluded from the settlement must send to the Claims Administrator a personally signed letter including (a) his or her full name; (b) his or her current address and telephone number; (c) a clear statement communicating that he or she chooses to be excluded from the settlement, does not wish to be a Rule 23 Class Member, and chooses to be excluded from any judgment entered pursuant to the Amended Agreement; (d) his or her signature; and (e) the case name and case number of this action. Any such Request for Exclusion must be sent to the Claims Administrator, in accordance with the Amended Agreement, no later than 45 calendar days from the date the Claims Administrator mails the Notice Packet. All persons or entities who properly exclude themselves from the settlement shall not be Class Members and shall relinquish their rights or benefits under the Amended Agreement, should it be finally approved, and may not file an objection to the settlement or be entitled to any settlement benefits. If the Court gives final approval for the proposed settlement, any Rule 23 Class Member or FLSA Class Member for whom the Claims Administrator is not able to determine an accurate address and who, in accordance with the terms and conditions of the Amended Agreement, has neither submitted a timely Request for Exclusion, nor submitted a valid and timely Claim Form, shall be bound by all terms of the Amended Agreement and the Court's final order and final judgment, regardless of whether they objected to the settlement, even if the Rule 23 Class Member or FLSA Class Member previously initiated or subsequently initiates any litigation against any or all of the Released Parties relating to Released Claims. In the event the Court does not grant final approval of the settlement, or for any reason the parties fail to obtain a final order and final judgment pursuant to the Amended Agreement, or the Amended Agreement is terminated pursuant to its terms for any reason, then the conditional certification of the class action and collective action shall be automatically vacated, and this litigation shall proceed as though the class and collective action had never been certified and such findings had never been made. The Court appointed CPT Group as the Claims Administrator to help implement the terms of the Amended Agreement. A Final Approval Fairness Hearing will be held before this Court on Tuesday, March 3, 2020, 10:00 a.m. in Courtroom 2, 5th Floor at 280 South First Street, San Jose, California to determine the fairness, reasonableness, and adequacy of the proposed settlement and whether it should be finally approved, including its provision for payment of service awards to each of the named plaintiffs, as well as Class Counsel's request for attorneys' fees, costs and expenses. The Final Approval Fairness Hearing may be postponed, adjourned, or continued by order of the Court without further notice to the Class Members. A full-text copy of the District Court's Order is available at https://tinyurl.com/y3kohpry from Leagle.com Rodrigo Camilo, an individual, Alvaro Camilo, an individual, Ricardo Sanchez, an individual & Jose Manuel Lopez, an individual, Plaintiffs, represented by James Dal Bon -- jdb@wagedefenders.com - Law Offices of James Dal Bon, 2625 Middlefield Road #600 Palo Alto, CA 94306 & Victoria L.H. Booke , Law Offices of Booke & Ajlouny, LLP, 606 N. First Street, San Jose, CA 95122 Severo C Ozuna, an individual & Don Vito Ozuna Food Corporation, a California Corporation, Defendants, represented by Julian Pardo De Zela -- julian.pardo.de.zela@svelf.com -- SV Employment Law Firm PC & Stacey Ann Zartler -- szartler@svelf.com -- Berliner Cohen. EATON CORP: 2nd Circuit Affirms Dismissal of SC Retirement Suit --------------------------------------------------------------- In the case, SOUTH CAROLINA RETIREMENT SYSTEMS GROUP TRUST, Plaintiff-Appellant, STEAMFITTERS LOCAL 449 PENSION PLAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, HELENE GABRIELE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. EATON CORPORATION PLC, ALEXANDER CUTLER, RICHARD FEARON, Defendants-Appellees, Case No. 18-2450-cv (2d Cir.), the U.S. Court of Appeals for the Second Circuit affirmed the judgment of the District Court dismissing the Plaintiff's Second Amended Complaint. Plaintiff-Appellant South Carolina Retirement Systems Group Trust, the Lead Plaintiff in a putative securities class action, challenges the District Court's dismissal of its Complaint against Eaton and two of its executives, Alexander M. Cutler and Richard H. Fearon. The Plaintiff argues that its complaint adequately states a claim for relief under Section 10(b) of the Securities Exchange Act of 1934. The Plaintiff argues that its complaint plausibly alleged that the Defendants intentionally misrepresented and omitted material information about Eaton's vehicle business. Specifically, it argues that the Defendants misled investors about the possibility that Eaton could divest its vehicle business after its merger with Cooper Industries plc. The District Court disagreed and dismissed the complaint. The Appellate Court now concludes that the District Court was correct to dismiss, reaching only the issue of whether there were any material misrepresentations or omissions. It finds there were none, and affirms the dismissal of the complaint on that ground alone. The Plaintiff alleges 10 misrepresentations or omissions in its complaint. a. May 21, 2012 Conference Call Statement 1: The Plaintiff argues that Cutler misleadingly answered a question about Eaton's "portfolio evolution over time" in failing to state that Eaton would be subject to a tax burden if it divested from its vehicle business within five years of the merger. b. May 21, 2012 Conference Call Statement 2: The Plaintiff argues that Cutler misleadingly answered a question about whether Eaton was precluded by any element of the tax structure of the deal from spinning off the vehicle business, because he failed to mention that no tax-free spin-off would be possible. It maintains that the omission was an attempt by Cutler to avoid admitting Eaton's potential tax liability from any spin-off. c. June 22, 2012 Preliminary Proxy Statement: The Plaintiff faults Eaton for stating in an SEC filing that it did not omit anything likely to affect the import of information provided. It argues that the filing, in fact, omitted information regarding Eaton's ability to conduct a tax-free spin-off. d. Sept. 14, 2012 Proxy Statement: The Plaintiff argues that, in a second SEC filing, Eaton misleadingly stated that its merger with Cooper increased global liquidity and free global cash flow among the various entities of the combined enterprise without negative tax effects. e. Oct. 31, 2012 Earnings Call: The Plaintiff argues that Cutler, in responding to a question about whether Eaton faced anything from a regulatory basis that would prevent one from doing additional divestures, misleadingly answered in the negative. f. Nov. 13, 2012 Goldman Sachs Conference: The Plaintiff argues that Cutler misleadingly stated that there is nothing structural in their deal structure or any of their covenants that prevents them from making changes in their portfolio. g. Feb. 5, 2013 Earnings Call: The Plaintiff argues that Cutler's statement that they like the portfolio they're with, was misleading because it suggested that Eaton chose not to divest when in fact Eaton was prevented from divesting by tax consequences. h. May 21, 2013 EPG Conference: In response to a question about whether Eaton was constrained in things it might do strategically, whether that were a larger-scale divestiture or anything else" because of its "tax structure," Cutler said on the tax issue, no, further noting, they've got great flexibility in terms of how they are able to move cash around the world. The Plaintiff argues that this was misleading and that Eaton's "tax structure" constrained its ability to undertake a "larger-scale divestiture. i. June 12, 2013 Press Release: The Plaintiff argues that Eaton's press release -- straight-forwardly entitled "Eaton Not in Discussions to Sell its Automotive Business" -- was misleading in omitting any reference to the potential tax effects of such a sale. j. Nov. 13, 2013 Goldman Sachs Conference: The Plaintiff argues that when Fearon was asked whether Eaton viewed its vehicle business as a "sacred cow" or whether it would consider divesting from it, it was misleading. It argues that, by failing to disclose the tax consequences of divestiture, Fearon misleadingly suggested that Eaton's commitment to the vehicle business was a choice. The Appellate Court has considered each in turn and concluded that no material misrepresentation or omission occurred. Because it identified no material misrepresentation or omission among the 10 statements highlighted by Plaintiff, it concluded that Plaintiff failed to state a plausible claim for securities fraud. A full-text copy of the Court's Nov. 6, 2019 Summary Order is available at https://is.gd/OoKwcP from Leagle.com. THOMAS A. DUBBS -- tdubbs@labaton.com -- Louis Gottlieb, Jeffrey A. Dubbin, Labaton Sucharow LLP, New York, NY, for Plaintiff-Appellant. JAMES E. BRANDT -- james.brandt@lw.com -- Jeff G. Hammel, Latham & Watkins LLP, New York, NY; Roman Martinez, Benjamin W. Snyder, Latham & Watkins LLP, Washington, D.C., for Defendants-Appellees. EAZE SOLUTIONS: Court Orders Arbitration in Williams TCPA Suit -------------------------------------------------------------- The United States District Court for the Northern District of California issued an Order granting Defendant's Motion to Compel Arbitration in the case captioned FARRAH WILLIAMS, Plaintiff, v. EAZE SOLUTIONS, INC., Defendant, Case No. 3:18-cv-02598-JD (N.D. Cal.). In this putative class action, plaintiff Farrah Williams alleges that defendant Eaze Solutions violated the Telephone Consumer Protection Act (TCPA), by sending her unsolicited, autodialed text messages. The parties do not dispute the salient facts. Eaze operates a marijuana mobile application (app) and online marketplace. The app facilitates the delivery of cannabis products from dispensaries to consumers. Williams signed up for Eaze's service. Before creating her Eaze account, Williams checked a box consenting to Eaze's terms of service. Eaze seeks to compel arbitration of her claims pursuant to its terms of service. LEGAL STANDARD The parties disagree about the governing legal standards. Eaze says that the Federal Arbitration Act (FAA) applies for two reasons: (1) the terms of service state that the Federal Arbitration Act will govern the interpretation and enforcement of its dispute resolution provisions and (2) the contract involves interstate commerce as contemplated by the FAA. Williams contends that California law controls because: (1) the terms of service state the parties' agreement will be governed by the laws of the State of California and (2) the contract does not involve interstate commerce. The TCPA allegations in the complaint also depend on the presence of interstate commerce. The TCPA was passed under Congress's Commerce Clause power. Williams alleges Eaze has violated the TCPA by harassing her with text messages, and she seeks to represent a nationwide class. The federal and nationwide claims in this case again require that Eaze be engaged in interstate commerce. Consequently, the FAA controls. The parties could have agreed otherwise, but they did not do so. The terms of service expressly state that the Federal Arbitration Act will govern the interpretation and enforcement of the dispute resolution section. While the contract contains a more general choice-of-law provision that opts for California law, it is the specific provision designating the FAA that governs arbitration. CONTRACT FORMATION The parties dispute yet again what law should be used to resolve the contract formation question. Eaze says that, under the FAA, the issue should be delegated to an arbitrator. Williams says that California law controls, and that the agreement's unlawful object to facilitate marijuana distribution and use means a contract was never formed. Starting with Williams's position, it is important to understand that, under California law, a contract that has an unlawful object is deemed void and unenforceable, not that it was never formed. Williams argues California Civil Code Section 1550, which states that it is essential to the existence of a contract that there should be: (1) Parties capable of contracting (2) Their consent (3) A lawful object and(4) A sufficient cause or consideration, means no contract was ever formed. She also cites an unpublished California Court of Appeal decision equating these factors with contract formation principles. But the California Code and decisions by the state Supreme Court critically undermine Williams's argument. These sources, some of which Williams herself cites, definitively establish that the consequence under California law of an unlawful object is not that a contract was not formed, but that the contract cannot be enforced. Williams mentions some arguably different opinions by California appellate courts and federal courts, but they are not controlling authorities. Eaze's argument takes a step further to suggest that the Supreme Court has applied substantive federal law to determine whether an issue is nondelegable. On this view, questions going to whether a contract has been concluded are limited to whether a contract was signed, whether the signor had authority, and whether the signor possessed the mental capacity to assent and do not include issues related to legality. But the Court need not decide whether California or federal law determines the effect of a contract's illegality because the answer is the same under both regimes. No other formation challenges are presented here. THE DELEGATION CLAUSE The parties agreed to arbitrate threshold issues concerning the arbitration agreement. Under the Supreme Court's decision in Rent-A-Center, Rent-A-Center, 561 U.S. at 72. Williams must challenge the delegation provision itself since any challenge to the validity of the Agreement as a whole is for the arbitrator. Here, the arbitration clause provides that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Service or Application (Disputes) will be settled by binding arbitration. There is no challenge to the delegation provision here and, so the Court will treat it as valid under Section 2, and must enforce it under Sections 3 and 4, leaving any challenge to the validity of the Agreement as a whole for the arbitrator. The Court declines to consider whether the arbitration clause itself is unconscionable because that question was delegated under the terms of service, and Williams did not challenge the delegation. Eaze's motion to compel arbitration of Williams's claims is granted. Williams's motion for a sur-reply is denied. The case is dismissed, rules the Court. A full-text copy of the District Court's October 22, 2019 Order is available at https://tinyurl.com/y5h3erns from Leagle.com Farrah Williams, Plaintiff, represented by David William Hall - dhall@hedinhall.com - Hedin Hall LLP & Frank S. Hedin - fhedin@hedinhall.com - Hedin Hall LLP. Eaze Solutions, Inc., Defendant, represented by Albert Quoc Giang , Boies Schiller Flexner LLP & Michael Dietz Roth , Boies Schiller Flexner LLP, 725 S Figueroa Street, 31st Floor Los Angeles, CA 90017. ELIE TAHARI: Dominguez Files ADA Class Action in NY --------------------------------------------------- A class action lawsuit has been filed against Elie Tahari, Ltd. The case is styled as Yovanny Dominguez and on behalf of all others persons similarly situated, Plaintiff v. Elie Tahari, Ltd., Defendant, Case No. 1:19-cv-11183 (S.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Elie Tahari Limited retails luxury clothes for both men and women. The Company offers its products both online and through its retail stores worldwide.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com EMPOWER HEALTHCARE: Court Dismisses King FLSA Suit with Prejudice ----------------------------------------------------------------- Judge Kristine G. Baker of the U.S. District Court for the Eastern District of Arkansas, Western Division, dismissed the case, QUIANA KING, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. EMPOWER HEALTHCARE SOLUTIONS, LLC, and BEACON HEALTH OPTIONS, INC., Defendants, Case No. 4:19-cv-00456 KGB (E.D. Ark.), with prejudice. The parties' filed the Court their joint stipulation of dismissal with prejudice. For good cause shown, the Judge adopted the stipulation of dismissal. The Court has not certified a collective or class action in the case, nor does the settlement agreement purport to resolve any claims on behalf of any collective or class, according to all the counsel. Each party will bear its own costs and fees to the extent not otherwise provided for in the settlement agreement between the parties. A full-text copy of the Court's Nov. 20, 2019 Order is available at https://is.gd/Mdyr0c from Leagle.com. Quiana King, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Joshua Sanford -- josh@sanfordlawfirm.com -- Sanford Law Firm & Sean Short -- sean@sanfordlawfirm.com -- Sanford Law Firm. Empower Healthcare Solutions LLC & Beacon Health Options Inc, Defendants, represented by Louisa J. Johnson -- lojohnson@seyfarth.com -- Seyfarth Shaw LLP. ENAGIC USA: Final Approval of Class Action Settlement Sought ------------------------------------------------------------ In the class action lawsuit styled as EDWARD MAKARON, individually and on behalf of all others similarly situated, the Plaintiff, vs. ENAGIC USA, INC., the Defendant, Case No. 2:15-cv-05145-DDP-E (C.D. Cal., Nov. 29, 2019), the Plaintiff will move the Court on January 13, 2019, for an order granting final approval of class action settlement. Enagic USA manufactures water purification equipment. The company offers water filtration machine and other related products.[BN] Attorneys for Plaintiff and all others similarly situated are: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Thomas E. Wheeler, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 324 S Beverly Blvd, Suite 725 Beverly Hills, CA 90212 Telephone: (888) 595-9111 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com twheeler@toddflaw.com FAIRWAY GOLF: Class Certification in Medina Suit Affirmed --------------------------------------------------------- In the case, MELVIN MEDINA, ETC., Respondent, v. FAIRWAY GOLF MANAGEMENT, LLC, ET AL., Defendants, MILL POND COUNTRY CLUB CATERERS, INC., ET AL., Appellants, Case No. 2017-11586, Index No. 607829/15 (N.Y. App. Div.), the Appellate Division of the Supreme Court of New York, Second Department, affirmed the order of the Supreme Court, Nassau County (Stephen A. Bucaria, J.), entered Aug. 8, 2017, granting the Plaintiff's motion for class certification pursuant to CPLR article 9. The Plaintiff, a catering service employee, commenced the action to recover damages for violations of Labor Law Section 196-d. He alleged that the Defendants, owners and operators of a golf course and its food and beverage catering operation, improperly retained mandatory service charges that were imposed upon customers for catered events, which customers would reasonably believe were gratuities for the catering employees. The Plaintiff moved for class certification pursuant to CPLR article 9. The Supreme Court granted the motion. Defendants Mill Pond Country Club Caterers, Inc., John Rossi, Anthony Gillespie, and Michael Danon appeal. The Appellate Court agrees with the Supreme Court's determination that the Plaintiff satisfied the requirements of CPLR 901(a). Contrary to the Appellants' contention, the Plaintiff demonstrated that his claim arose out of the same course of conduct and is based on the same theories as the other class members. It is not necessary that the claims of the named Plaintiff be identical to those of the class or that the named Plaintiff be able to assert all the claims made on behalf of the class. In addition, the evidence established that the Plaintiff, and his counsel, would adequately represent the class. Contrary to the Appellants' further contention, the Plaintiff's evidence was sufficient to satisfy the minimal threshold of establishing that his claim was not a sham. Accordingly, the Appellate Court agreed with the Supreme Court's determination to grant the Plaintiff's motion for class certification and affirmed. A full-text copy of the Court's Nov. 13, 2019 Decision & Order is available at https://is.gd/sPTau7 from Leagle.com. Silverman Acampora, LLP, Jericho, NY (Brian J. Shenker -- TheFirm@SilvermanAcampora.com -- and Alan B. Pearl of counsel), for appellants. Leeds Brown Law, P.C., Carle Place, NY (Suzanne B. Klein, Brett R. Cohen, Jeffrey K. Brown, and Michael A. Tompkins of counsel), for respondent. FAMILY RANCH: Alvino Seeks to Recover Unpaid Wages and Penalties ---------------------------------------------------------------- Manuel Alberto Alvino, as an individual and on behalf of all others similarly situated v. FAMILY RANCH, INC., a California corporation; FAMILY TREE FARMS, INC., a California corporation; BALOIAN PACING CO., INC., a California corporation; LANDBOUW RANCHES, LLC, a California limited liability company; and DOES 1 through 100, Case No. 19CECG04356 (Cal. Super. Ct., Fresno Cty., Dec. 5, 2019), is brought for recovery of unpaid wages and penalties under the California Business & Professions Code. The Plaintiff says he was in most workweeks paid on a piece-rate basis, whereby he was paid a set rate per bag filled with onions. The Defendants' foreperson allegedly recorded the hours the Plaintiff worked, however, the Plaintiff was only paid an hourly minimum wages if his earned piece-rate compensation did not exceed his minimum wages earned in a pay period. The Plaintiff and other non-exempt employees also were not authorized to take all legally required rest periods regardless of whether they were working on a piece-rate or hourly basis, says the complaint. The Plaintiff was employed by the Defendant as a non-exempt farm labor employee in the position of "Topper". The Defendants are in the agricultural business and employee seasonal farm labor employees to harvest agricultural goods.[BN] The Plaintiff is represented by: Daniel J. Brown, Esq. STANSBURY BROWN LAW 2610 1/2 Abbot Kinney Blvd. Venice, CA 90291 Phone: 323-207-5925 Fax: (310) 410-0800 Email: dbrown@stansburybrownlaw.com FAT BRAIN TOYS: Guglielmo Files Class Suit Under ADA ----------------------------------------------------- A class action lawsuit has been filed against Fat Brain Toys, LLC. The case is styled as Joseph Guglielmo, on behalf of himself and all others similarly situated, Plaintiff v. Fat Brain Toys, LLC, Defendant, Case No. 1:19-cv-11196 (S.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Fat Brain Toys is a United States manufacturer and retailer of educational toys and games.[BN] The Plaintiff is represented by: Russel Craig Weinrib, Esq. Stein Saks PLLC 285 Passaic St., Suite 5 Hakensack, NJ 07601 Phone: (201) 282-6500 Email: rweinrib@steinsakslegal.com FEDCHEX RECOVERY: Castle Seeks to Certify Illinois Residents Class ------------------------------------------------------------------ In the class action lawsuit styled as BONNIE J. CASTLE, individually and on behalf of a nationwide class of similarly situated individuals, the Plaintiff, vs. FEDCHEX RECOVERY, LLC d/b/a FCR COLLECTION SERVICES, the Defendant, Case No. 1:19-cv-06441 (N.D. Ill.), the Plaintiff asks the Court for an order: 1. certifying a class of: "all residents of the state of Illinois who were sent collection letters from Defendant, where Defendant's name was visible on the face of the envelope that contained the collection letters within the last year"; 2. appointing the Plaintiff as Class Representative; and 3. appointing James C. Vlahakis as Class Counsel. On or about September 6, 2019, the Defendant sent Plaintiff a collection letter in an attempt to collect a purported medical debt that was incurred for personal use. The gist of the Class Action Complaint is that the envelope used by Defendant to mail the collection letter violates Section 1692f(8) of the Fair Debt Collection Practices Act.[CC] Attorney for the Plaintiff are: James C. Vlahakis, Esq. 2500 S. Highland Avenue, Suite 200 Lombard, IL 60148 Telephone: 630 581-5456 Facsimile: 630 575-8188 E-mail: jvlahakis@sulaimanlaw.com FH CANN: Violates FDCPA When Collecting Debt, Fredrick Claims ------------------------------------------------------------- Keith Fredrick, individually and on behalf of all others similarly situated v. F.H. CANN & ASSOCIATES, INC., Case No. 2:19-cv-01784-JPS (E.D. Wisc., Dec. 5, 2019), arises from the Defendant's practices, which violate the Fair Debt Collection Practices Act, when attempting to collect consumer debts. The Defendant mailed or caused to be mailed a letter dated December 5, 2018, to the Plaintiff. The Letter contends that the Plaintiff owes a debt. The Letter stated the Plaintiff's loans could be removed from default by completing the Federal Student Loan Rehabilitation Program. The Letter stated in relevant part: Completion of the Rehabilitation Program will remove you from the Treasury Offset Program and Administrative Wage Garnishment, which will prevent your taxes from being offset, prevent SSI/SSDI benefits from being garnished at up to 15%, and prevent involuntary payments of up to 15% of your wages. The Plaintiff contends that the statement is false, deceptive, and misleading as the law only permits wage garnishment of up to 15% of the Plaintiff's disposable pay. By failing to state that the cap on garnishment was 15% of disposable pay, the Defendant falsely represented that a larger amount of the Plaintiff's pay was subject to garnishment than is actually permitted by law, says the complaint. The Plaintiff is a natural person, who was a citizen of and resided in the Village of Elkhart Lake, Sheboygan County, Wisconsin. F.H. CANN regularly engages in the collection of defaulted consumer debts or allegedly defaulted consumer debts owed to others.[BN] The Plaintiff is represented by: Francis R. Greene, Esq. Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 3010 South Appleton Road Menasha, WI 54952 Phone (973) 379-7500 Email: Philip@SternThomasson.com Andrew@SternThomasson.com Francis@SternThomasson.com FILOBLU USA: Faces Mahoney ADA Class Action in Pa. -------------------------------------------------- A class action lawsuit has been filed against FILOBLU USA, CORP. The case is styled as JOHN MAHONEY ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff v. FILOBLU USA, CORP., Defendant, Case No. 2:19-cv-05761-TJS (E.D. Pa., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. FiloBlu is a business accelerator for brands and retailers.[BN] The Plaintiff is represented by: David S. Glanzberg, Esq. GLANZBERG TOBIA & ASSOCIATES PC 123 S. BROAD STREET SUITE 1640 PHILADELPHIA, PA 19109 Phone: (215) 981-5400 Email: dglanzberg@aol.com FIRST ADVANTAGE: Dossett FCRA Suit Removed to N.D. Georgia ---------------------------------------------------------- The case styled as James Dossett on behalf of himself and all others similarly situated, Plaintiff v. First Advantage Background Services Corp., Defendant, Case No. 2019CV328090 was removed from Fulton Superior Court, to the U.S. District Court for the Northern District of Georgia on Dec. 5, 2019, and assigned Case No. 1:19-cv-05497-SDG-CMS. The Plaintiff filed the case under the Fair Credit Reporting Act. First Advantage Background Services Corp. was founded in 2003. The Company's line of business includes providing detective, guard, and armored car services.[BN] The Plaintiff is represented by: E. Michelle Drake, Esq. John G. Albanese, Esq. Berger & Montague, P.C. -MN 43 SE Main Street, Suite 505 Minneapolis, MN 55414 Phone: (612) 594-5999 Fax: (612) 584-4470 Email: emdrake@bm.net jalbanese@bm.net - and - Gary B. Andrews, Jr. , Esq. Blake Andrews Law Firm, LLC 1831 Timothy Dr. Atlanta, GA 30329 Phone: (770) 828-6225 Email: blake@blakeandrewslaw.com The Defendant is represented by: Connor McGinnis Bateman, Esq. Esther Slater McDonald, Esq. Frederick Thomas Smith, Esq. Seyfarth Shaw, LLP-Atl 1075 Peachtree Street NE, Suite 2500 Atlanta, GA 30309 Phone: (404) 885-1500 Fax: (404) 892-7056 Email: cbateman@seyfarth.com emcdonald@seyfarth.com fsmith@seyfarth.com FIRST COUNTY BANK: Moskowitz Sues Over Charging of NSF & OD Fees ---------------------------------------------------------------- Craig Moskowitz, on behalf of himself and all others similarly situated v. FIRST COUNTY BANK, Case No. 3:19-cv-01920-AVC (D. Conn., Dec. 5, 2019), arises from the Bank's routine practice of: (a) assessing more than one insufficient funds fee ("NSF Fee") on the same item; and (b) charging both NSF Fees and overdraft fees ("OD Fees") on the same item. These practices breach contractual promises, violate the covenant of good faith and fair dealing, and/or result in the Bank being unjustly enriched, the Plaintiff alleges. The Defendant's customers have been injured by its improper practices to the tune of millions of dollars bilked from their accounts in violation of their agreements with the Defendant. The Defendant's Account Documents allow it to charge a single NSF Fee or a single OD Fee when an item, including an electronic payment item, is returned for insufficient funds or paid into insufficient funds. The Defendant breaches its contract when it charges more than one NSF Fee on the same item, since the contract explicitly states--and reasonable consumers understand--that the same item can only incur a single NSF or OD Fee, says the complaint. The Plaintiff is a resident of Stamford, Connecticut, and holds a First County checking account. The Defendant is engaged in the business of providing retail banking services to consumers.[BN] The Plaintiff is represented by: James E. Miller, Esq. Laurie Rubinow, Esq. SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 65 Main Street Chester, CT 06412 Phone: 860-526-1100 Facsimile: 866-300-7367 Email: jmiller@sfmslaw.com lrubinow@sfmslaw.com –and– Jeffrey Kaliel, Esq. KALIEL PLLC 1875 Connecticut Avenue NW, 10th Floor Washington, DC 20009 Phone: (202) 350-4783 Facsimile: (202) 871-8180 Email: jkaliel@kalielpllc.com - and - Jeff Ostrow, Esq. Jonathan Streisfeld, Esq. Daniel E. Tropin, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT One West Las Olas, Suite 500 Fort Lauderdale, FL 33301 Phone: (954) 525-4100 Facsimile: (954) 525-4300 Email: ostrow@kolawyers.com streisfeld@kolawyers.com tropin@kolawyers.com FIRST NATIONAL: Bid to Compel Doc Production in Lundquist Denied ---------------------------------------------------------------- In the case, CAMERON LUNDQUIST, an individual, and LEEANA LARA, an individual, on behalf of themselves and all others similarly situated, Plaintiffs, v. FIRST NATIONAL INSURANCE COMPANY OF AMERICA, a New Hampshire Corporation, and LM GENERAL INSURANCE COMPANY, an Illinois Corporation, and CCC INFORMATION SERVICES INCORPORATED, a Delaware Corporation, Defendants, Case No. 18-5301 RJB (W.D. Wash.), Judge Robert J. Bryan of the U.S. District Court for the Western District of Washington, Tacoma, denied the Plaintiffs' Motion to Compel Production of Documents Relating to Regulatory Action, Customer Complaints, and other Lawsuits. In the putative class action, the Plaintiffs assert that the Defendants' practice of using unexplained and unjustified condition adjustments to comparable vehicles when valuing a total loss claim for a vehicle, violates the Washington Administrative Code ("WAC"), specifically WAC 284-30-391 (4)(b) and (5)(d), and so constitutes: (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) violation of Washington's Consumer Protection Act ("CPA") and (4) civil conspiracy. The Plaintiffs seek damages, declaratory and injunctive relief, attorneys' fees and costs. The class has not been certified. The Second Amended Complaint proposes to define the class as all individuals insured by First National and LMGIC under a private passenger vehicle policy who, from the earliest allowable time to the date of judgment, received a first-party total loss settlement or settlement offer based in whole or in part on the price of comparable vehicles reduced by a condition adjustment. The parties have exchanged written discovery and produced thousands of pages of documents. As part of that written discovery, the Plaintiffs propounded requests for production and the interrogatory that is at issue. They are as follows: (1) Please provide all documents and electronically stored information ("ESI") relating to any previous dispute or discussion about First National's application of condition adjustments to the values of comparable vehicles use to value total loss claims. (2) Produce all documents and ESI relating to investigations, complaints, citations, fines, rebukes or penalties from or by municipal, state or federal agencies, including but not limited to any state government agencies overseeing auto coverage insurance, regarding the application of condition adjustments to the values of comparable vehicles used to value total loss claim payments to insureds in first-party motor vehicle total loss claims and business practices related thereto. (3) Produce all documents and ESI concerning prior lawsuits, in the relevant time period filed against the Defendants concerning their application of condition adjustments to the values of comparable vehicles used to value total loss claim payments to insureds in first-party motor vehicle total loss claims. (4) Produce all documents and ESI relating to complaints made by customers (or their attorneys) concerning the application of condition adjustments to the values of comparable vehicles used to value total loss claim payments to insureds in first-party motor vehicle total loss claims. (5) Please produce any and all documents relating to applicable state methodologies used for requesting, obtaining, and/or generating total loss valuation reports as that term is used in the CCC Valuescope claim services product schedule. (6) Please list all states where, as a general practice, First National and/or LM General value total loss claims based upon valuation reports from CCC Information Services that do not contain condition adjustments applied to the values of comparable vehicles. On Oct. 5, 2018, the Insurer Defendants objected to those discovery requests to the extent they seek information for activities outside of Washington and agreed to provide the discovery that related to Washington. They began collecting their ESI in mid-February 2019 based on over 50 agreed search terms from 50 custodians. They finished the ESI collection process in April of 2019. They began producing documents on a rolling basis and their final production to the Plaintiffs was on Sept. 9, 2019. The Insurer Defendants did not produce documents or information relating to complaints, lawsuits, and activities, etc. outside of Washington. The parties conferred several times over the last year and attempted to resolve the issue of whether the out-of-state information would be provided. They were unable to come to a resolution. The instant motion followed. The deadline for the Plaintiffs' motion for class certification is Jan. 31, 2020, the fact discovery deadline is July 31, 2020, the dispositive motions deadline is Aug. 13, 2020, and the trial is set to begin on Nov. 16, 2020. Judge Bryan holds that the Plaintiffs' motion to compel should be denied. Even broadly construing the term "relevant," the information sought is not relevant to any parties' claims or defenses. The claims asserted are for a proposed Washington class and are made under Washington law. The Insurer Defendants properly point out that information from out-of-state related activities for different policy holders under different standards and applicable state laws are not relevant to the issues presented. Further, the Insurer Defendants have shown that the discovery sought is not proportional to the needs of case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Moreover, the Insurer Defendants point out that the Plaintiffs' request for production regarding lawsuits are materials that are publicly available. Finally, to the extent the Insurer Defendants move for an award of expenses, the motion should be denied. The motion to compel was substantially justified. An award of expenses would be unjust. Based on the foregoing, Judge Bryan denied the Plaintiffs' Motion to Compel Production of Documents Relating to Regulatory Action, Customer Complaints, and other Lawsuits. To the extent the Insurer Defendants move for an award of expenses, that motion is denied. No award of expenses shall be made. The Clerk is directed to send uncertified copies of the Order to all the counsel of record and to any party appearing pro se at said party's last known address. A full-text copy of the Court's Nov. 20, 2019 Order is available at https://is.gd/ANgOfC from Leagle.com. Cameron Lundquist, an individual, on behalf of himself and all others similarly situated & Leeana Lara, Plaintiffs, represented by Steve W. Berman -- steve@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP, David L. Woloshin, ASTOR WEISS KAPLAN & MANDEL, LLP, pro hac vice, Dina S. Ronsayro, ASTOR WEISS KAPLAN & MANDEL, LLP, The Bellevue Suite 600, 200 South Broad Street, Philadelphia, PA 19102, pro hac vice, John M. DeStefano -- johnd@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP, pro hac vice, Marc A. Goldich, AXLER GOLDICH LLC, 1520 Locust Street, Suite 301 Philadelphia, PA 19102, pro hac vice & Robert B. Carey -- rob@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP, pro hac vice. First National Insurance Company of America, a New Hampshire Corporation & LM General Insurance Company, Defendants, represented by Casey Grabenstein -- casey.grabenstein@saul.com -- SAUL EWING ARNSTEIN & LEHR LLP, pro hac vice, James A. Morsch -- jim.morsch@saul.com -- SAUL EWING ARNSTEIN & LEHR LLP, pro hac vice, John Michael Silk- silk@wscd.com -- WILSON SMITH COCHRAN & DICKERSON & Kellie Y. Chen -- kellie.chen@saul.com -- SAUL EWING ARNSTEIN & LEHR LLP, pro hac vice. CCC Information Services, Inc., Defendant, represented by Kathleen M. O'Sullivan -KOSullivan@perkinscoie.com -- PERKINS COIE, Jason R. Burt -- jason.burt@lw.com -- LATHAM & WATKINS, pro hac vice, Kathleen P. Lally -- kathleen.lally@lw.com -- LATHAM & WATKINS, pro hac vice, Marguerite M. Sullivan -- marguerite.sullivan@lw.com -- LATHAM & WATKINS, pro hac vice & Steven J. Pacini -- steven.pacini@lw.com -- LATHAM & WATKINS LLP, pro hac vice. FLAGSTAR BANK: Court Certifies Class in Kivett Suit --------------------------------------------------- In the case, WILLIAM KIVETT, individually and on behalf of others similarly situated, Plaintiff, v. FLAGSTAR BANK, FSB, a federal savings bank, and DOES 1-100, inclusive, Defendant, Case No. C 18-05131 WHA (N.D. Cal.), Judge William Alsup of the U.S. District Court for the Northern District of California granted the Plaintiffs' (i) motion for class certification and (ii) motion for new Plaintiffs to intervene with leave to amend the complaint. In 2010, the enshrinement of the Dodd-Frank Wall Street Reform and Consumer Protection Act changed the federal preemption scheme for banks and federal savings associations. In 2018, the states' Court of Appeals relied on the change to hold that the National Bank Act -- which governs national banks -- did not preempt Section 2954.8(a). Judge Edward Chen has since certified for interlocutory appeal the question of whether the Home Owners' Loan Act preempts state law claims. The civil action began in April 2018, filed by Lowell and Gina Smith. The Smiths alleged that in October 2004, they had obtained a mortgage loan to finance their purchase of real property located in California. The Smiths had executed a deed of trust as security for the loan. The deed of trust called for the establishment of an escrow impound account and required that interest be paid on funds in the escrow account if doing so was required by applicable law. Flagstar then took over the servicing of the Smiths' mortgage account and remained the loan servicer until August 2015. No interest accrued on the funds. The Smiths' complaint alleged two claims against Flagstar: (i) breach of contract, and (ii) violation of California's Unfair Competition Law. In August 2018, a Rule 12 order dismissed that complaint without prejudice due to the Smiths' failure to comply with a threshold notice-and-cure requirement provided by the deed of trust. Judgment then entered in favor of Flagstar and against the Smiths. The Smiths quickly provided Flagstar written notice and an opportunity to cure, which Flagstar refused. Having fixed the cure issue, the Smiths filed the instant suit, alleging the same claims on the same facts as before. In October 2018, Kivett came in as another Plaintiff. He only alleged a violation of Section 17200. He alleged that he had obtained a mortgage loan from Flagstar in September 2012. Flagstar serviced his loan from the loan's inception in 2012 until he refinanced with another institution in April 2015. Flagstar held his money in an escrow account during that time. No interest accrued on the account. In September 2018, Plaintiff Kivett gave written notice and demand for cure, which Flagstar denied. In December 2018, a case management schedule set a deadline of Jan. 30, 2019, for leave to add any new parties or to amend the pleadings. Rule 12 practice followed as to the Smiths but not to Plaintiff Kivett. In February 2019, an order converted Flagstar's motion to dismiss into one for summary judgment under Rule 12(d). At bottom, Flagstar's motion presented a threshold issue as to whether or not the Home Owners' Loan Act preempted the Smiths' claims. To be clear, the enactment of the Dodd-Frank Act in 2010 had generally ended HOLA preemption. The Smiths had obtained their mortgage in October 2004. The preemption argument veered outside the complaint. Flagstar sought judicial notice of the Smiths' promissory note to establish that Flagstar participated in the origination of the Smiths' loan and became its original servicer immediately after origination. The Smiths, however, countered that the deed of trust clearly identified Wholesale America Mortgage as the lender, not Flagstar. Owing to the importance of the factual question and because matters outside the pleading were presented to and not excluded by the court, the motion to dismiss became one for summary judgment. Following discovery and further briefing, summary judgment issued in favor of Flagstar. In brief, the order hewed to a practical construction of the Dodd-Frank Act's phrase "entered into," determining that even though Flagstar had not directly entered into the contract with the Smiths, it sufficed that Flagstar had participated in the origination of the Smiths' loan in 2004. Put simply, the Smiths' claims were still preempted by the Home Owners' Loan Act. With the Smiths out of the picture, the sole surviving plaintiff and claim in this action became plaintiff Kivett and his claim under Section 17200. This brings the Court to the two instant motions. First, Plaintiff Kivett seeks to certify a single class of 125,189 Flagstar customers who, from April 18, 2014, onward, have not received two percent interest on the amounts Flagstar held in their mortgage escrow accounts. More specifically, he seeks to certify the following class pursuant to Rule 23(b)(3): All persons who on or after April 18, 2014 had mortgage loans serviced by Flagstar Bank FSB (Flagstar) on 1-4 unit residential properties in California and paid Flagstar money in advance to hold in escrow for the payment of taxes and assessments on the property, for insurance, or for other purposes relating to the property, but did not receive interest on the amounts held by Flagstar in their escrow accounts (excluding, however, any such persons whose mortgage loans originated on or before July 21, 2010). Kivett seeks to represent will be within the four-year statute of limitations counting from the filing of the complaint in the first action. Flagstar opposes Kivett's motion for class certification, training all its fire on one Rule 23 element: predominance. Second, Kivett also moves for Bernard and Lisa Bravo to intervene in this action and to amend the complaint. The primary purpose for the motion is to add a class member currently serviced by Flagstar to ensure standing for an injunction and a class under Rule 23(b)(2), as plaintiff Kivett has not been a Flagstar customer since 2015. Kivett moved for the Bravos to intervene on August 20. The deadline to add any new parties was January 30. Kivett's instant motion for class certification only seeks certification of a class under Rule 23(b)(3). It differs from the operative complaint, which sought certification of a class under both Rule 23(b)(2) and Rule 23(b)(3). Kivett never moved to certify a class under Rule 23(b)(2). As such, Judge Alsup only assessed certification under Rule 23(b)(3), and whether or not it is too late for new Plaintiffs to intervene. The Judge holds that the prior Smith order erred when it dismissed the statutory claim under the deed of trust's notice-and-cure provision. That requirement did not apply to the statutory claim at issue. The tolling of class claims therefore began from April 18, 2014. Furthermore, the notice-and-cure provision is not an individualized inquiry, because it is not an inquiry in the instnat case at all. The Judge now proceeds to the instant motions. Flagstar does not contest that any of the Rule 23(a) requirements have been met here. Indeed, Kivett has sufficiently established each element. The class would comprise 125,189 California borrowers, the sole claim at issue stems from Flagstar's purported obligation to pay interest on every class member's mortgage loan, and the named Plaintiff suffers the identical injury as the rest of the class, namely that his escrow account never received an interest payment. Furthermore, the class definition is tailored so that no class member would be subject to HOLA field preemption or Section 17200's statute of limitations. It sufficiently satisfies the elements of numerosity, commonality, and typicality, as required by Rule 23(a)(1)-(3). The Judge also finds Kivett and his counsel to be adequate representatives as required by Rule 23(a)(4). Flagstar does not contest that it is both manageable and superior to allow the case to proceed as a class action. Indeed, Flagstar's mortgage records provide current or former home addresses, phone numbers, and social security numbers for all class members, and the low individual restitution amounts are readily calculable based on Flagstar's data. What Flagstar does contest, however, is whether common issues predominate. The Judge holds that it is a classic and textbook issue of the class action device. The law required interest to be paid but the savings association did not do so to its borrowers, all allegedly cheated by the savings association. These borrowers now join together to vindicate their right to interest under the law. The miscellaneous differences thrown out by the savings association are just that -- miscellaneous -- and cannot obfuscate the main point that the savings association allegedly cheated thousands of borrowers out of the interest due to them and pocketed the money for itself. It is hard to imagine a case worthier of class treatment. Finally, the Judge holds that the prejudice Flagstar props up does not suffice to turn the Bravos away. Moreover, the Bravos have already provided Flagstar all their mortgage related documents, and have offered to appear for deposition upon request. Further, Flagstar's argument that amendment would be futile because the proposed class can never seek prospective injunctive relief fails. Under Flagstar's theory, not every class member is a current Flagstar customer and so because the entire class cannot be entitled to injunctive relief, no class can be entitled to injunctive relief. Even assuming Flagstar's argument to be true, a separate sub-class under Rule 23(b)(2) can be certified for all class members who are currently serviced by Flagstar. For these reasons, Kivett's motion to intervene and for leave to amend the complaint will be granted. Based on the foregoing, Judge Alsup granted the Plaintiff's motion for class certification. He certified the following class: All persons who on or after April 18, 2014 had mortgage loans serviced by Flagstar Bank FSB (Flagstar) on 1-4 unit residential properties in California and paid Flagstar money in advance to hold in escrow for the payment of taxes and assessments on the property, for insurance, or for other purposes relating to the property, but did not receive interest on the amounts held by Flagstar in their escrow accounts (excluding, however, any such persons whose mortgage loans originated on or before July 21, 2010). The class definition will apply for all purposes, including settlement. The class is certified as to Kivett's Section 17200 claim, except for prospective injunctive relief. Kivett is appointed as the class representative. His counsel from Hagens Berman Sobol Shapiro LLP and the Law Office of Peter Fredman PC are appointed as the class counsel. The Judge provisionally granted the Plaintiff's motion for new Plaintiffs to intervene and for leave to amend to add new class representatives. The Defendant will have until Jan. 20, 2010 to show cause why the Bravos should not be authorized to co-represent the class. The Plaintiff's counsel will promptly make the Bravos available for depositions on or before Dec. 6, 2019, and will produce their records by that date. By Jan. 2, 2020, both sides will submit a proposed form of notice to the class with a plan of distribution by first-class mail. The Plaintiff also moved for an extension on the deadline to bring dispositive motions. To the extent stated, the Judge granted in part that motion. The deadline on dispositive motions was set for Dec. 5, 2019. All other deadlines remain in place. A full-text copy of the Court's Nov. 20, 2019 Order is available at https://is.gd/ycvtNY from Leagle.com. Lowell Smith & Gina Smith, Plaintiffs, represented by Fredman B. Peter -- peter@peterfredmanlaw.com -- Law Office of Peter Fredman PC & Thomas Eric Loeser -- toml@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. William Kivett, Plaintiff, represented by Fredman B. Peter, Law Office of Peter Fredman PC & Thomas Eric Loeser, Hagens Berman Sobol Shapiro LLP. Flagstar Bank, FSB, Defendant, represented by Carolee Anne Hoover -- choover@mcguirewoods.com -- McGuireWoods LLP, David Carlyle Powell -- dpowell@mcguirewoods.com -- McGuireWoods LLP, Aaron Robert Marienthal -- amarienthal@mcguirewoods.com -- McGuireWoods, LLP, Alexander Jacob Gershen -- agershen@mcguirewoods.com -- McGuireWoods LLP & Alicia Anne Baiardo -- abaiardo@mcguirewoods.com -- McGuireWoods LLP. FLORIDA: Unconstitutionality of Sections 11.066(3) & (4) Affirmed ----------------------------------------------------------------- In the case, FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and FLORIDA COMMISSIONER OF AGRICULTURE, Appellants, v. JOSEPH DOLLIVER; NANCY DOLLIVER; JOHN KLOCKOW and DEANNA KLOCKOW, Trustees of the Klockow Living Trust; CHARLES STROH; LOIS STROH; THE CERTIFIED CLASS OF LEE COUNTY HOMEOWNERS; RAYMOND DELLASELVA; MARY E. DELLASELVA; and MARIANNE J. SANSON, Trustee of the Marianne J. Sanson Revocable Trust, Appellees, Case No. 2D18-1393 (Fla. Dist. App.), Judge Morris Silberman of the District Court of Appeal of Florida, Second District, affirmed the trial court's decision declaring sections 11.066(3) and (4) unconstitutional as applied to the Lee Homeowners' takings judgments and in issuing a writ of mandamus compelling payment. The Florida Constitution provides in what is commonly referred to as the "Takings Clause" that no private property will be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner. The Appellants, a class of homeowners in Lee Count, have spent 16 years fighting for their constitutional rights to payment of compensation for the taking of their property by the Florida Department of Agriculture and Consumer Services and the Florida Commissioner of Agriculture. In this stage of these unnecessarily protracted proceedings, the Lee Homeowners are pursuing enforcement of a 2014 final judgment for $13,625,249.09 that was entered following a jury trial, together with final judgments for attorney's fees and costs entered in their favor in 2015 and 2016. In 2016, the Court affirmed the 2014 final judgment, and the Department did not seek further review in the Florida Supreme Court. The Department also did not seek appellate review of the judgments for fees and costs. As a result of the Department's ongoing failure to pay the outstanding final judgments, the Lee Homeowners returned to Court to enforce the judgments. Although the judgments have long been final and the Department claimed that it would be happy to pay the three judgments, the Department asserted that it is unable to make payment until the legislature appropriates the funds as required by sections 11.066(3) and (4), Florida Statutes (2015). The Lee Homeowners responded that the Department has refused to take affirmative action to obtain an appropriation and has taken a position that has resulted in the governor vetoing a legislative appropriation that the Lee Homeowners had requested. Further, the Lee Homeowners argued that sections 11.066(3) and (4) are unconstitutional as applied. After an evidentiary hearing, the trial court entered a thorough order that addressed at length the Takings Clause, the pertinent statutes, and the applicable case law, together with the evidence that the parties presented. The court determined that sections 11.066(3) and (4) are unconstitutional as applied and issued a writ of mandamus directing the Department to pay the judgments. As the court explained, to essentially argue that the Lee Homeowners should just hope that someday, some year, the Legislature eventually will pass an appropriation to cover the judgments, and further that the governor finally will assent, while at the same time doing absolutely nothing to secure such an appropriation, is a specious argument. Judge Silberman agreed with the trial court's well-reasoned decision and affirmed. After considering all arguments made by the Department, he concluded that the trial court did not err in declaring sections 11.066(3) and (4) unconstitutional as applied to the Lee Homeowners' takings judgments and in issuing a writ of mandamus compelling payment. Applying sections 11.066(3) and (4) to prevent the trial court from issuing a writ of mandamus would preclude the Lee Homeowners from securing their constitutional rights to payment of full compensation under article X, section 6(a), of the Florida Constitution. It would also allow the legislature to control the amount of compensation, if any, that the Lee Homeowners will actually receive in contravention of the separation of powers doctrine under article II, section 3; and the power of the judiciary under article V, section 1. The Judge echoed the sentiment of the trial court that it cannot and will not countenance further delays in securing payment to the Lee Homeowners of the constitutionally-guaranteed full compensation that was adjudicated to finality in the case. A full-text copy of the Court's Nov. 13, 2019 Opinion is available at https://is.gd/FdcJw9 from Leagle.com. Wesley R. Parsons -- wparsons@cspalaw.com -- and Karen H. Curtis -- kcurtis@cspalaw.com -- of Clarke Silverglate, P.A., Miami, for Appellants. Robert C. Gilbert -- gilbert@kolawyers.com -- of Grossman Roth Yaffa Cohen, P.A., Coral Gables; and Bruce S. Rogow and Tara Campion of Bruce S. Rogow, P.A., Fort Lauderdale, for Appellees. GC SERVICES: Jawaid Files Suit Asserting FDCPA Violation -------------------------------------------------------- A class action lawsuit has been filed against GC Services Limited Partnership. The case is styled as Muhammad Jawaid, individually and on behalf of all others similarly situated, Plaintiff v. GC Services Limited Partnership, Defendant, Case No. 1:19-cv-06884 (E.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. GC Services Limited Partnership provides accounts receivable and customer care solutions to public and private sector organizations.[BN] The Plaintiff is represented by: David M. Barshay, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 706-5055 Email: dbarshay@barshaysanders.com GENERAL NUTRITION: Ruling on OT Compensation Multiplier Affirmed ---------------------------------------------------------------- In the cases, TAWNY L. CHEVALIER AND ANDREW HILLER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Appellees, v. GENERAL NUTRITION CENTERS, INC. AND GENERAL NUTRITION CORPORATION, Appellants, TAWNY L. CHEVALIER AND ANDREW HILLER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, Appellees, v. GENERAL NUTRITION CENTERS, INC., AND GENERAL NUTRITION CORPORATION, Appellants, Case Nos. 22 WAP 2018, 23 WAP 2018 (Pa.), Judge Max Baer of the Supreme Court of Pennsylvania for the Western District affirmed the Superior Court's decision rejecting GNC's use of the Fluctuating Work Week method ("FWW Method") for calculating the Plaintiffs' overtime compensation to the extent it utilizes a 0.5 Multiplier. In the case, Court considers the calculation of overtime compensation for non-exempt salaried workers under the Pennsylvania Minimum Wage Act of 1968 ("PMWA"), and the related regulations adopted by the Pennsylvania Department of Labor and Industry. Specifically, it addresses whether these statutory and regulatory provisions allow for the usage of the FWW Method for calculating overtime compensation for salaried employees working fluctuating hours. In September 2013, Chevalier filed a class action complaint against General Nutrition Centers, Inc., a Delaware corporation, and General Nutrition Corp., a Pennsylvania corporation ("GNC"). Chevalier had previously been employed by GNC as a store manager and senior store manager, earning a set weekly salary plus commissions, regardless of the number of hours she worked in a given week. GNC additionally paid her overtime for any hours worked in excess of 40 hours in a week by utilizing the FWW Method. Essentially, Chevalier argued that the FWW Method did not satisfy the PMWA's requirement that employees will be paid for overtime not less than one and one-half times the employee's regular rate. She later amended her complaint to add Andrew Hiller, also a former GNC store manager, as a named Plaintiff and class representative. The Plaintiffs asserted that they were bringing the class action on behalf of all former or current managers, assistant managers and senior store managers and other 'non-exempt' GNC employees that are paid overtime based upon the 'Fluctuating Work Week Method' of overtime compensation. The Plaintiffs worked at GNC between 2009 and 2011. The trial court subsequently granted the Plaintiffs' motion for class certification. On Sept. 6, 2016, the trial court entered judgment in favor of the Plaintiffs, in the amount of $1,378.494.77, representing the unpaid overtime, in addition to $362,286.08 in interest to date, with costs and attorneys' fees to be calculated later. The trial court also granted an award of attorney fees in the amount of $360,000 and $8,000 in costs on Dec. 29, 2016. GNC appealed to the Superior Court from the trial court's order of Sept. 6, 2016, entering final judgment, and the order of Dec. 29, 2016, granting attorney fees and costs. After oral argument, the Superior Court sought the Pennsylvania Department of Labor and Industry's views on "whether the PMWA authorizes an employer to use the [FWW] method to calculate overtime compensation for salaried employees." The Department declined the invitation, asserting that the question implicated not merely an interpretation of law but policy choices among competing positions as to how best to effectuate the intent of the legislature. Ultimately, the Superior Court concluded that GNC's use of a 0.5 Multiplier violated the PMWA and the Pennsylvania Regulations. Given that the court reversed the trial court in part, it vacated the order granting attorney fees and costs and remanded the case to the trial court for further proceedings. GNC appealed the Superior Court's decision to the extent it rejected the application of the FWW Method to salaried employees working fluctuating hours. Before the Court, GNC reiterates its contention that the PMWA should be interpreted consistently with the Federal Regulations, which explicitly adopt the FWW Method. It argues that Pennsylvania's silence on the issue should be interpreted as acceptance of the FWW Method, rather than a repudiation of it. Judge Baer holds that the language of the regulation provides that each employee will be paid for overtime not less than 1-1/2 times the employee's regular rate of pay for all hours in excess of 40 hours in a workweek. This language, when mechanically applied, comports with the Plaintiffs' analysis as it requires "all hours in excess of 40" to be paid at 1.5 times the regular rate, regardless of whether the regular rate was calculated based upon the actual hours worked. Considering this application in light of the unmistakable intent of the General Assembly to use the Commonwealth's police power to increase wages to combat the "evils of unreasonable and unfair wages, the Judge concludes that the rules of statutory construction favor the Plaintiffs' interpretation requiring application of the 1.5 Multiplier. This interpretation is further supported by the Secretary's overt application of the 0.5 Multiplier for day and job rate compensation arrangements by adopting Section 778.112 of the Federal Regulations verbatim but not adopting Section 778.114, which applies the FWW Method's 0.5 Multiplier to salaried employees working fluctuating hours. They are similarly guided by the regulatory decision to allow the use of Belo contracts in 34 Pa. Code. Section 231.43(c), which approves of a different overtime compensation method for salaried employees working fluctuating hours, but not adopting the FWW Method approved in Overnight Motor Transportation Company, Inc. v. Missel. The incorporation of these provisions gives additional credence to the conclusion that the Secretary intentionally adopted some but not all of the calculation methods elaborated in the Federal Regulations. Thus, the Judge views the Secretary's silence as an intent to reject the 0.5 Multiplier of the FWW Method in favor of the 1.5 Multiplier. Accordingly, Judge Baer affirmed the Superior Court's decision rejecting GNC's use of the FWW Method under the PMWA and the Pennsylvania Regulations, which he finds distinguishable from the federal Fair Labor Standards Act, and related regulations, which overtly adopt the FWW Method for salaried employees working fluctuating hours. A full-text copy of the Court's Nov. 20, 2019 Opinion is available at https://is.gd/mZ3mFW from Leagle.com. Robert William Pritchard -- rpritchard@littler.com -- Littler Mendelson, P.C., for General Nutrition Centers, Inc. and General Nutrition Corporation, Appellants. Adrian Nathaniel Roe -- aroe@roeandsimonllc.com -- Roe & Simon LLC, for Tawny L. Chevalier and Andrew Hiller, Appellees. Michael D. Simon, Roe & Simon LLC, for Tawny L. Chevalier and Andrew Hiller, Appellees. George A. Bibikos -- gbibikos@gabibikos.com -- GA BIBIKOS LLC, for National Federation of Independent Business, Pennsylvania Chamber of Business and Industry, Pennsylvania Manufacturers' Association, Pennsylvania Restaurant and Lodging Association and Pennsylvania Retailers' Association, Amicus Curiae. Christine Teresa Elzer, Elzer Law Firm, LLC, for NELA Eastern Pennsylvania and Western Pennsylvania Employment Lawyers Association, Amicus Curiae. Peter David Winebrake -- pwinebrake@winebrakelaw.com -- Winebrake & Santillo, LLC, for Community Legal Services Inc., PathWays PA, The Keystone Research Center, The National Employment Law Project, The Pennsylvania AFL-CIO and The Women's Law Project, Amicus Curiae. GOOD SAMARITAN: Court Denies Class Certification Bid as Moot ------------------------------------------------------------ In the class action lawsuit styled as Jahmir Christopher Frank, the Plaintiff, vs. The Good Samaritan Hospital of Cincinnati, Ohio, the Defendant, Case No. 1:18-cv-00618-MRB (S.D. Ohio), the Hon. Judge Michael R. Barrett entered an order on Dec. 4, 2019, denying as moot the motion for class certification by proposed class representative Jahmir Frank, pending since September 18, 2018. As reported by the Class Action Reporter, the Plaintiff moved the Court for entry of an order: (i) certifying that this action may be maintained and proceed as a class action against defendants; (ii) for his appointment as class representative; and (iii) for appointment of Percy Squire, Esq., as Counsel for the Class and as Liaison Counsel for the Class. Mr. Frank brought this action as a Class Action under Rules 23(a), (b)(1), (b)(2) and (b)(3) of the Federal Rules of Civil Procedure on behalf of: "all persons who delivered or were delivered at Good Samaritan Hospital between the period January 1, 1997 through December 31, 1999." Good Samaritan Hospital, the oldest and largest private teaching and specialty health care facility in Cincinnati, Ohio, United States.[CC] The Plaintiff is represented by: Percy Squire, Esq. PERCY SQUIRE CO., LLC 341 S. Third Street, Suite 10 Columbus, OH 43215 Telephone: (614) 224-6528 E-mail: psquire@sp-lawfirm.com HALLMARK RETAIL: Dominguez Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Hallmark Retail, LLC. The case is styled as Yovanny Dominguez and on behalf of all others persons similarly situated, Plaintiff v. Hallmark Retail, LLC, Defendant, Case No. 1:19-cv-11165 (S.D.N.Y., Dec. 5, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Hallmark Marketing Corporation retails gift and card products. The Company offers holidays and occasions gifts, greeting cards, party plates, invitation cards, books, ornaments, games, and toys.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com HANDY TECHNOLOGIES: Fischler Sues Over Blind-Inaccessible Web Site ------------------------------------------------------------------ Brian Fischler, Individually and on behalf of all other persons similarly situated v. HANDY TECHNOLOGIES, INC., Case No. 1:19-cv-11141 (S.D.N.Y., Dec. 5, 2019), is brought against the Defendant for its failure to design, construct, maintain, and operate its Web site, http://www.handy.com/,to be fully accessible to and independently usable by the Plaintiff and other blind or visually-impaired people. The Defendant denies full and equal access to its Web site; hence, the Plaintiff asserts claims against the Defendant under the Americans with Disabilities Act, New York State Human Rights Law, and New York City Human Rights Law. The Plaintiff seeks a permanent injunction to cause the Defendant to change its corporate policies, practices, and procedures so that its Website will become and remain accessible to blind and visually-impaired consumers. Plaintiff Fischler is blind, visually-impaired handicapped person. The Defendant offers online booking services for household contractors, such as house cleaning, furniture assembly, tv mounting, remodeling, painting, lawn mowing and similar services.[BN] The Plaintiff is represented by: Douglas B. Lipsky, Esq. Christopher H. Lowe, Esq. LIPSKY LOWE LLP 630 Third Avenue, Fifth Floor New York, NY 10017-6705 Phone: 212.392.4772 Email: doug@lipskylowe.com chris@lipskylowe.com HEADWAY TECHNOLOGIES: Fixes Prices of HDD Suspension, Burke Says ---------------------------------------------------------------- ALLISON BURKE v. HEADWAY TECHNOLOGIES, INC., HUTCHINSON TECHNOLOGY INC., MAGNECOMP PRECISION TECHNOLOGY PUBLIC CO., LTD., NAT PERIPHERAL (DONG GUAN) CO., LTD., NAT PERIPHERAL (H.K.) CO., LTD., NHK SPRING CO., LTD., NHK INTERNATIONAL CORPORATION, NHK SPRING (THAILAND) CO., LTD., NHK SPRING PRECISION (GUANGZHOU) CO., LTD., SAE MAGNETICS (H.K.) LTD., AND TDK CORPORATION, Case No. 3:19-cv-07177 (N.D. Cal., Oct. 30, 2019), is brought for damages, injunctive relief and other relief pursuant to federal antitrust laws, state antitrust, unfair competition, consumer protection laws, and the laws of unjust enrichment. The lawsuit arises out of a global conspiracy among the Defendants and their co-conspirators to fix prices of and allocate market shares for hard disk drive ("HDD") suspension assemblies. HDD suspension assemblies are a component of hard disk drives, which use magnetism to store information electronically. HDDs use recording heads, attached to sliders, to read from and write onto rapidly spinning disks. HDD suspension assemblies hold the recording heads close to the disks and provide the electrical connection from the recording heads to the hard disk drives' circuitry. HDDs containing HDD suspension assemblies are sold both as stand-alone devices and incorporated into a variety of ubiquitous electronics, such as desktop computers, laptop computers, gaming systems, printers, and copy machines. The Defendants manufactured and sold HDD suspension assemblies throughout and into the United States.[BN] The Plaintiff is represented by: Jennie Lee Anderson, Esq. ANDRUS ANDERSON LLP 155 Montgomery Street, Suite 900 San Francisco, CA 94104 Telephone: (415) 986-1400 Facsimile: (415) 986-1474 E-mail: jennie@andrusanderson.com - and - Kevin Landau, Esq. Miles Greaves, Esq. TAUS, CEBULASH & LANDAU, LLP 80 Maiden Lane, Suite 1204 New York, NY 10038 Telephone: (646) 873-7654 Facsimile: (212) 931-0703 E-mail: klandau@tcllaw.com mgreaves@tcllaw.com - and - Samuel J. Strauss, Esq. TURKE & STRAUSS LLP 613 Williamson Street, #201 Madison, WI 53703 Telephone: (608) 237-1775 Facsimile: (608) 509-4423 E-mail: sam@turkestrauss.com HEALTHY HALO: Gordon Suit Moved to Eastern District of Washington ----------------------------------------------------------------- The class action lawsuit styled as Issac Gordon individually and on behalf of all others similarly situated, Plaintiff v. Healthy Halo Insurance Services, Inc., a California Corporation, and CallFire, Inc., a Delaware corporation, Defendants, was removed from the Spokane County Superior Court to the U.S. District Court for the Eastern District of Washington (Spokane) on Nov. 12, 2019. The Eastern District of Washington Court Clerk assigned Case No. 2:19-cv-00387 to the proceeding. The suit demands $5 million worth of damages. Healthy Halo is a full-service health insurance agency providing consumers with extensive coverage at affordable prices.[BN] The Plaintiff is represented by: Brian Cameron, Esq. CAMERON SUTHERLAND PLLC 421 W Riverside Avenue, Suite 660 Spokane, WA 99201 Telephone: (509) 315-4507 Facsimile: (509) 315-4584 E-mail: bcameron@cameronsutherland.com - and - Kirk D Miller, Esq. KIRK D MILLER PS 421 West Riverside Avenue, Suite 660 Spokane, WA 99201 Telephone: (509) 413-1494 Facsimile: (509) 413-1724 E-mail: kmiller@millerlawspokane.com - and - Shayne Sutherland, Esq. CAMERON SUTHERLAND PLLC 421 W Riverside Avenue, Suite 660 Spokane, WA 99201 Telephone: (509) 315-4507 Facsimile: (509) 315-4585 E-mail: ssutherland@cameronsutherland.com CallFire, Inc. is represented by: Duncan C. Turner, Esq. BADGLEY-MULLINS LAW GROUP 701 Fifth Avenue, Suite 4750 Seattle, WA 98104 Telephone: (206) 621-6566 Facsimile: (206) 621-9686 E-mail: duncanturner@badgleymullins.com HEALTHY HALO: Martin Sues Over Unsolicited Ads That Violate TCPA ---------------------------------------------------------------- William Martin individually and on behalf of all others similarly situated v. HEALTHY HALO INSURANCE SERVICES INC., Case No. 8:19-cv-02347 (C.D. Cal., Dec. 5, 2019), is brought for damages resulting from the unlawful actions of the Defendant in negligently, knowingly, and/or willfully placed unsolicited automated text messages to the Plaintiff's cellular phone in violation of the Telephone Consumer Protection Act. The Defendant has violated the TCPA by using an automatic telephone dialing system to bombard consumers' mobile phones with non-emergency advertising and marketing text messages without prior express written consent, says the complaint. The case is brought to enforce the consumer privacy provisions afforded by the TCPA, a federal law that was designed to curtail abusive telemarketing practices. The Plaintiff is an individual who resided in Garden Grove, California. Healthy Halo is a full-service health insurance agency which sells consumers health insurance for both individuals and employers.[BN] The Plaintiff is represented by: Robert Ahdoot, Esq. Bradley K. King, Esq. AHDOOT & WOLFSON, PC 10728 Lindbrook Drive Los Angeles, CA 90024 Phone: (310) 474-9111 Fax: (310) 474-8585 Email: rahdoot@ahdootwolfson.com bking@ahdootwolfson.com HERR FOODS: Mahoney Files ADA Suit in Pennsylvania -------------------------------------------------- A class action lawsuit has been filed against HERR FOODS INCORPORATED. The case is styled as JOHN MAHONEY ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff v. HERR FOODS INCORPORATED, Defendant, Case No. 2:19-cv-05759-MMB (E.D. Pa., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Herr Foods Inc. provides food products. The company offers potato chips, pretzels, chocolate covered pretzels, kettle cooked potato, tortilla chips, cheese curls, corn chips, and salsas.[BN] The Plaintiff is represented by: David S. Glanzberg, Esq. GLANZBERG TOBIA & ASSOCIATES PC 123 S. BROAD STREET SUITE 1640 PHILADELPHIA, PA 19109 Phone: (215) 981-5400 Email: dglanzberg@aol.com HOT TOPIC: Dominguez Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Hot Topic, Inc. The case is styled as Yovanny Dominguez and on behalf of all others persons similarly situated, Plaintiff v. Hot Topic, Inc., Defendant, Case No. 1:19-cv-11163 (S.D.N.Y., Dec. 5, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Hot Topic is an American retail chain specializing in counterculture-related clothing and accessories, as well as licensed music.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com HR PARKING: Summary Judgment Bid in Fernandez FLSA Suit Denied -------------------------------------------------------------- In the case, BRYAN FERNANDEZ et al., Plaintiffs, v. HR PARKING INC et al., Defendants, Case No. 16 Civ. 2762 (GWG) (S.D. N.Y.), Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York denied Open Road Defendants' motion for summary judgment on the issue of their status as employers, whether the Plaintiffs are similarly situated, and whether the Plaintiffs can proceed as a class. The Plaintiffs in the case are current and former employees of HR Parking, who have sued HR Parking and its owner, Nelson Rodriguez, along with three other Defendants: Open Road Audi of Manhattan, Michael Morais, and Rodman Ryan ("Open Road Defendants"). Under both the Fair Labor Standards Act ("FLSA"), and the New York Labor Law Sections 190 et seq. ("NYLL"), any employee who works more than 40 hours per week must be paid at a rate not less than 150% of the employee's regular hourly rate for all hours worked beyond 40. The Plaintiffs allege that the Defendants violated this requirement when the Plaintiffs worked for them as valets at Audi Manhattan. Fernandez filed the complaint in the action on April 13, 2016, claiming HR Parking and the Open Road Defendants failed to pay him the proper overtime rate when he worked more than 40 hours per week. Both HR Parking and the Open Road Defendants answered and the Open Road Defendants asserted cross-claims against HR Parking. On July 1, 2016, Fernandez moved for approval of the case as a collective action under 29 U.S.C. Section 216(b). Carlos Arzeno, Naiim Flowers, Hernando Daza, Julio Diaz, and Candiany Rodriguez filed forms consenting to become party Plaintiffs. The consent forms included a box allowing claimants to indicate that they worked at "Audi Manhattan" and thus that they were joining the lawsuit as against the Open Road Defendants. Diaz and Flowers did not check the box. Daza checked the box but conceded at his deposition that he never worked at Audi Manhattan. The Open Road Defendants filed the instant motion for summary judgment on June 21, 2019. Magistrate Judge Gorenstein finds that some of the four "formal control" factors under Carter v. Dutchess Cmty. Coll., favor a finding that the Open Road Defendants were employers and at least one does not. Satisfying the four Carter factors may be sufficient to establish joint employment under the FLSA but it is not necessary to establish joint employment. Rather than determine, however, whether the Plaintiffs have supplied enough evidence to allow a jury to find formal control under Carter, the Magistrate Judge will instead turn to the Zheng "functional control" test, which allows a more expansive determination of employer status. In assessing "functional control," he will also consider any non-duplicative Carter factors in addition to the six Zheng factors: (i) use of premises and equipment; (ii) shift as a unit; (iii) discrete line-job that was integral to the business; (iv) whether HR Parking's contract Ccould pass to another subcontractor; (v) degree of control and supervision; and (vi) "exclusively or predominantly" for the putative joint employer. After considering all the Zheng factors, the non-duplicative Carter factors, and the possibility that a jury could find that the defendants knew of the failure to pay overtime, the Magistrate Judge concludes that a reasonable jury could find that the Open Road Defendants were a joint employer of the Plaintiffs. Accordingly, the Defendants' motion for summary judgment will be denied. Finally, in their motion for summary judgment, the Open Road Defendants include an argument that the Plaintiffs who opted in as part of the collective action should be "decertified" or that Open Road Defendants should be dismissed, because the Plaintiffs are not "similarly situated." The Magistrate Judge holds that the three of the Plaintiffs -- Diaz, Flowers and Daza -- have claims only against HR Parking and not against the Open Road Defendants because these Plaintiffs never worked at Audi Manhattan. The three remaining Plaintiffs, however -- that is, Fernandez, Rodriguez and Arzeno -- all worked for the Open Road Defendants on the seven-to-seven, Monday through Friday, schedule for months at a time. The Open Road Defendants have raised a common defense against them -- that is, that they are not the Plaintiffs' employers. Thus, the Plaintiffs are "similarly situated" to each other. As for Defendants' arguments regarding Rule 23 class certification, these arguments are moot given that the Plaintiffs have not made a motion under that rule. For the foregoing reasons, Magistrate Judge Gorenstein denied the Defendants' motion for summary judgment and other requests for relief. A full-text copy of the Court's Nov. 20, 2019 Opinion & Order is available at https://is.gd/iJJCRw from Leagle.com. Bryan Fernandez, individually & Bryan Fernandez, in behalf of all other persons similarly situated, Plaintiffs, represented by Brandon David Sherr, Law Office of Justin A. Zeller, P.C., Justin Alexander Zeller, The Law Office of Justin A. Zeller, P.C. & John Gurrieri, Law Office of Justin A. Zeller. Carlos Arzeno, Naiim Flowers, Hernando Daza, Julio Diaz & Candiany Rodriguez, Plaintiffs, represented by Brandon David Sherr, Law Office of Justin A. Zeller, P.C. & John Gurrieri, Law Office of Justin A. Zeller. HR Parking Inc, jointly and severally doing business as Tristate Valet & Nelson Rodriguez, jointly and severally, Defendants, represented by Michael K. Chong, Law Offices of Michael K. Chong, LLC. Open Road of Manhattan, LLC, jointly and severally doing business as Audi Manhattan, Michael Morais, jointly and severally & Rodman Ryan, jointly and severally, Defendants, represented by Alicia Langone, I, Methfessel & Werbel & Frank Joseph Keenan -- Keenan@methwerb.com -- Methfessel & Werbel, PC. Michael Morais, jointly and severally, Rodman Ryan, jointly and severally & Open Road of Manhattan, LLC, jointly and severally, Cross Claimants, represented by Frank Joseph Keenan, Methfessel & Werbel, PC. HR Parking Inc, jointly and severally & Nelson Rodriguez, jointly and severally, Cross Defendants, represented by Michael K. Chong, Law Offices of Michael K. Chong, LLC. INDOCHINO APPAREL: Calcano Files ADA Suit in S.D. New York ---------------------------------------------------------- A class action lawsuit has been filed against Indochino Apparel (US) Inc. The case is styled as Marcos Calcano on behalf of himself and all other persons similarly situated, Plaintiff v. Indochino Apparel (US) Inc., Defendant, Case No. 1:19-cv-11145 (S.D.N.Y., Dec. 5, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Indochino Apparel Inc. produces custom tailored suits for men. The Company offers shirts, coats, blazers, vests, pants, cufflinks, and neckties.[BN] The Plaintiff is represented by: Jeffrey Michael Gottlieb, Esq. 150 E. 18 St., Suite PHR New York, NY 10003 Phone: (212) 228-9795 Fax: (212) 982-6284 Email: nyjg@aol.com JAGGED PEAK: Sabatini Challenges Proposed Sale to Parsley Energy ---------------------------------------------------------------- ERIC SABATINI, Individually and On Behalf of All Others Similarly Situated, Plaintiff v. JAGGED PEAK ENERGY INC., CHARLES D. DAVIDSON, ROGER L. JARVIS, JANEEN S. JUDAH, MICHAEL C. LINN, ADRIANNA C. MA, JOHN R. SULT, S. WIL VANLOH, JR., DHEERAJ VERMA, BLAKE A. WEBSTER, JAMES J. KLECKNER, PARSLEY ENERGY, INC., and JACKAL MERGER SUB, INC., Defendants, Case No. 1:19-cv-02114-UNA (D. Del., Nov. 8, 2019), alleges that the Defendants violated the Securities Exchange Act of 1934 in connection with the registration statement filed for a proposed transaction, pursuant to which Jagged Peak will be acquired by Parsley Energy, Inc. and Jackal Merger Sub, Inc. On October 14, 2019, Jagged Peak's Board of Directors caused the Company to enter into an agreement and plan of merger. Pursuant to the terms of the Merger Agreement, Jagged Peak's stockholders will receive 0.447 shares of Parent common stock for each share of Jagged Peak common stock they own. On November 5, 2019, the Defendants filed a Form S-4 Registration Statement with the United States Securities and Exchange Commission in connection with the Proposed Transaction. The Plaintiff alleges that the Registration Statement omits material information with respect to the Proposed Transaction, which renders the Registration Statement false and misleading. The Plaintiff contends that the Registration Statement omits material information with respect to, among other things, the Company's and Parsley's financial projections and the analyses performed by Jagged Peak's financial advisors. The Plaintiff is the owner of Jagged Peak common stock. The Plaintiff seeks injunctive and equitable relief and damages on behalf of holders of Jagged Peak common stock. Jagged Peak operates as an oil and natural gas company. The Company focuses on the acquisition and development of unconventional oil and associated natural gas reserves.[BN] The Plaintiff is represented by: Gina M. Serra, Esq. Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 E-mail: sdr@rl-legal.com bdl@rl-legal.com gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 E-mail: rm@maniskas.com JETSMARTER, INC: Court Sends Worthington Suit to Arbitration ------------------------------------------------------------ The United States District Court for the Southern District of New York granted Defendant's Motion to Compel Arbitration in the case captioned JENNIFER WORTHINGTON, ALEXANDRA WORTHINGTON, and MASSIMO TASSAN-SOLET, Plaintiffs, v. JETSMARTER, INC., DAVID SHERIDAN, and JOHN DOES 1-4, Defendants. No. 18 Civ. 12113 (KPF). (S.D.N.Y.) Plaintiffs J. Worthington and Tassan-Solet renewed their memberships in JetSmarter, a travel services company, and found themselves unable to access many of the services that JetSmarter had previously provided to them. Plaintiffs communicated with Sheridan regarding the changes in their service, but soon realized that, contrary to Sheridan's representations, JetSmarter had in fact changed its business model and would no longer offer free flights. The Complaint alleges claims for breach of contract, violations of the implied covenant of good faith and fair dealing, unfair trade practices, respondeat superior, and fraud. JetSmarter moves to compel arbitration, relying on an arbitration provision in its Membership Agreement. Defendants contend that because the JetSmarter Membership Agreement contains a Florida choice-of-law provision, Florida law applies to the question of contract formation. In opposition, Plaintiffs contend that the Court should apply New York law because Plaintiffs have no connections to Florida and are asserting causes of action under New York law. In diversity of citizenship cases, a federal court deciding questions of conflict of laws must follow the rules prevailing in the state in which the court sits. Under New York law, courts should not engage in any conflicts analysis where the parties included a choice-of-law provision in their contract. District Judge Katherine Polk Failla said the Court need not decide which state's law applies, because the law of New York and Florida is substantially similar on the question of whether the parties have formed an agreement to arbitrate. Under both New York and Florida law, an arbitration agreement requires a manifestation of mutual assent to sufficiently definite contract terms. Plaintiffs contend that Defendants cannot prove that Plaintiffs manifested assent to the Membership Agreements. They are wrong, according to Judge Failla, saying that the Defendants have provided the Court with evidence sufficient to show that Plaintiffs indeed manifested assent to JetSmarter's Membership Agreements and, by extension, to arbitrate their disputes under those Agreements. A declaration submitted by Mikhail Kirsanov, the Chief Technology Officer of JetSmarter, explains that during the process of obtaining JetSmarter memberships, Plaintiffs indicated their assent to JetSmarter's Membership Agreement at least twice. First, when Plaintiffs registered on the JetSmarter app, they indicated assent to JetSmarter's terms of use by swiping a button next to the phrase "I agree to Terms of Use and Privacy Policy." Second, when Plaintiffs submitted payment information for their memberships, they each clicked on a box next to the phrase "I ACCEPT TERMS AND CONDITIONS OF THE MEMBERSHIP AGREEMENT" that was hyperlinked to the Membership Agreement. Undeterred by this evidence, Plaintiffs contend that the making of the arbitration agreement is in issue, and therefore the Court must hold a trial to determine whether Plaintiffs agreed to arbitration. To support this argument, Plaintiffs cast aspersions on the documentary evidence provided by Defendants. Plaintiffs argue, for instance, that the Membership Agreements attached to the Kirsanov Declaration have not been properly authenticated because they are not date-stamped and do not contain the JetSmarter logo. According to Judge Failla, Plaintiffs' arguments regarding the type and format of Defendants' evidence do not create a genuine issue of material fact as to whether the parties entered into an arbitration agreement. When presented with arbitration agreements in contracts formed online between companies and their customers, courts routinely rely on affidavits and declarations similar to the Kirsanov Declaration and screenshots describing and depicting how the customer manifested assent to the company's arbitration provision. Judge Failla noted that, in Cordas v. Uber Technologies, Inc., 228 F.Supp.3d 985, 989 (N.D. Cal. 2017), the court relied on the declaration of an Uber engineer that described the rider sign-up and registration process and on screenshots of the Uber app in determining whether the plaintiff had agreed to Uber's terms and conditions. The court in Cordas rejected the plaintiff's argument that the declaration was insufficient to support Uber's motion to compel arbitration because it was hearsay, speculation, and lacked authentication. The court explained that Cordas offered no testimony or evidence regarding what he did see on his screen, and offered] no evidence to rebut the Uber engineer's reasoned declaration other than his own conclusory allegations that he never received notice of the terms and conditions and that the Uber engineer's declaration is false and inadequate. Instead, the court held that the Uber engineer's declaration was based on personal knowledge and on records kept by Uber in the ordinary course of business, and was therefore sufficient to find, as a matter of law, that Cordas had entered into an arbitration agreement with Uber. Plaintiffs further argue that even if they did agree to the terms of the Membership Agreements, they should not be compelled to arbitrate because those agreements are unenforceable as unconscionable and illusory. Plaintiffs argue that the Membership Agreements were unconscionable because: (i) they were offered to Plaintiffs on a take-it-or-leave-it basis (ii) JetSmarter did not return Plaintiffs' funds when Plaintiffs sought to cancel their memberships and (iii) JetSmarter unilaterally changed the membership program, stripping Plaintiffs of the benefits of their bargain. Plaintiffs also argue that the provisions in the Membership Agreements allowing JetSmarter to modify the terms of such agreements unilaterally rendered these agreements illusory. According to Judge Failla, all of these arguments are challenges to the enforceability of the Membership Agreements in toto. Plaintiffs do not make any discrete challenges to the validity of the arbitration provisions specifically. Neither party has requested a stay, and Defendants have explicitly asked for this action to be dismissed. The Court therefore denied Defendants' motion to dismiss and stayed the matter pending the completion of arbitration. However, Defendants' only argument in support of the Court dismissing, rather than staying, the matter consists of a single footnote providing in its entirety. Defendants' bare assertion fails to persuade the Court that it should dismiss, instead of stay, the matter, particularly where courts in other JetSmarter cases have recognized that a stay promotes the expeditious resolution of the dispute. A full-text copy of the District Court's Opinion and Order is available at https://tinyurl.com/yxnd45au from Leagle.com Jennifer Worthington, Alexandra Worthington & Massimo Tassan-Solet, Plaintiffs, represented by: Bruce E. Baldinger, Esq. The Law Offices of Bruce E. Baldinger, LLC 365 South Street, 1st Floor Morristown, NJ 07960-7323 Jetsmarter, Inc. and David Sheridan, Defendants, represented by: Ronald Andrew Giller, Esq. Catherine Bentivegna, Esq. Daniel Jason Dimuro , Esq. Gordon & Rees LLP E-mail: rgiller@grsm.com cbentivegna@grsm.com ddimuro@grsm.com JPMORGAN CHASE: Final Approval of $5M Rotondo Suit Deal Recommended ------------------------------------------------------------------- In the case, DEREK ROTONDO, Plaintiff, v. JPMORGAN CHASE BANK, N.A., Defendant, Civil Action 2:19-cv-2328 (S.D. Ohio), Magistrate Judge Chelsey M. Vascura of the U.S. District Court for the Southern District of Ohio, Eastern Division, recommended that the Court grant (i) the Plaintiff's Unopposed Motion for Final Approval of Class Action Settlement, and (ii) the Plaintiff's Unopposed Motion for Approval of Attorneys' Fees, Reimbursement of Expenses, and Service Payment. The action arises out of the Defendant's parental leave policy. Under its policy effective in 2016, Chase employees who were primary caregivers could receive up to 16 weeks of paid parental leave upon the birth of a child, while employees who were not primary caregivers (non-primary caregivers) could receive only up to two weeks of paid parental leave. Named Plaintiff Rotondo was told by Chase human resources personnel that, under the 2016 Policy, birth mothers were presumptively treated as primary caregivers, while birth fathers were presumptively treated as non-primary caregivers. To qualify as primary caregivers, birth fathers would have to show that: (1) the father's spouse had returned to work; or (2) the spouse was medically incapable of caring for the child. Mr. Rotondo intended to be the primary caregiver for his son born in 2017, but could not satisfy the 2016 Policy's primary caregiver requirements because his wife had not yet returned to work and was capable of caring for their child. Mr. Rotondo timely filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") challenging Chase's alleged policy and practice of denying primary caregiver leave to fathers, on behalf of himself and a class of similarly situated male employees. From July 2017 through April 2019, the parties engaged in settlement discussions and informal discovery about Chase's policies and their impact on putative class members, including in-person negotiations on July 25 and Oct. 3, 2017, and two days of mediation with an independent mediator on April 16 and May 14, 2018. While the settlement talks were ongoing, Chase changed its parental leave policy in December 2017 to remove gender-specific language and clarify that fathers are eligible to be designated as primary caregivers on the same basis as mothers. The parties executed the Settlement on May 28, 2019, and Mr. Rotondo filed the putative class action on May 30, 2019. On June 21, 2019, the Court granted preliminary approval of the Settlement. It certified the following class under Federal Rules of Civil Procedure 23(a) and 23(b)(3) for settlement purposes only: All male employees of Defendant nationwide who took the maximum amount of non-primary caregiver leave available under the Defendant's policy in effect at the time of the birth of one or more child (either 1 week or 2 weeks depending on the time period) during the Settlement Class Period, or if applicable, the State Settlement Class Periods, and would have otherwise qualified for paid primary caregiver leave, but did not take primary caregiver leave. The Settlement Class period for class members not subject to the State Settlement Class Periods is from Aug. 19, 2016 (300 days before the charge was filed) through Dec. 4, 2017 (when Chase revised the 2016 policy). The Class members who worked in one of the following states are subject to the following State Settlement Class Periods: (a) Alaska, Maine, New Jersey, and West Virginia: June 15, 2015 through Dec. 4, 2017; (b) Michigan, New York, Washington, and Vermont: June 15, 2014 through Dec. 4, 2017; (c) California: June 15, 2013 through Dec. 4, 2017; (d) Kentucky: June 15, 2012 through Dec. 4, 2017; (e) Ohio: June 15, 2011 through Dec. 4, 2017; (f) Arkansas, Louisiana, Minnesota, North Carolina, Oregon, South Dakota, Tennessee, and District of Columbia: June 15, 2016 through Dec. 4, 2017. Chase, through its personnel records, identified 5,035 members of the Settlement Class. As part of the Settlement, Chase will continue to maintain a gender-neutral parental leave policy and will not reduce the amount of non-primary or primary paid caregiver leave it provides for four years from the effective date of the Settlement. It will also conduct training of relevant human resources personnel and contractors on its new parental leave policy, monitor implementation of the policy, and provide data to the Plaintiff's counsel on the implementation of the policy for two years after the Settlement's approval. The Settlement also establishes a $5 million Gross Settlement Amount that covers all amounts to be paid to, or on behalf of, Settlement Class Members; any Court-approved Service Payment to the Named Plaintiff; any Attorneys' Fees and Litigation Expenses approved by the Court; and any Settlement Administrator's fees and costs that exceed $50,000. The Class Counsel may request attorneys' fees not to exceed one-third of the Gross Settlement Amount, as well as reimbursement of reasonable costs and expenses. Chase will pay the Settlement Administrator's fees and costs up to $50,000 in addition to the Gross Settlement Amount. The fees and costs of the Settlement Administrator above $50,000 will be paid from the Gross Settlement Amount. The Net Settlement Amount (which is the Gross Settlement Amount minus attorneys' fees and costs, service payments, and the settlement administrator's fees and costs that exceed $50,000) will be distributed in equal shares to the Settlement Class Members based on the total number of valid claims submitted by the Settlement Class Members. The Settlement Class Members who had more than one child during the Settlement Class Period may receive compensation for multiple claims that they filed. To receive a Settlement Award, the Settlement Class Members must have submitted a valid Claim Form by the Claim Form Deadline. As of Oct. 22, 2019, the Settlement Administrator had received 1,503 claim forms, of which at least 1,440 have been determined to be valid. The Settlement Administrator has calculated the pro rata share of the Net Settlement Amount for each valid claim to be $2,301. The Settlement Class Members will have 180 days to cash the checks that they receive from the Settlement Administrator. Any amount remaining 20 days after the expiration of the 180-day Acceptance Period will be redistributed to the Settlement Class Members who have timely cashed their checks or, if the amount remaining is small enough that a redistribution is not appropriate, unclaimed funds will be donated to a nonprofit organization that the parties propose and the Court approves pursuant to the cy pres doctrine. Plaintiff retained RG/2 as the Settlement Administrator. As of Oct. 22, 2019, RG/2 had received 1,503 claim forms. No class members objected to the Settlement, and 3 class members opted out of the Settlement. Magistrate Judge Vascura presided over a Fairness Hearing on Nov. 6, 2019. She recommended that: a. The Motion for Final Settlement Approval and the Motion for Award of Attorneys' Fees be granted; b. Based upon her review of the Plaintiff's Memorandum of Law in Support of Final Approval of the Class Action Settlement and all other papers submitted in connection with the Plaintiff's Final Approval Motions, that the Court grants final approval of the $5 million settlement memorialized in the Settlement Agreement and Release; c. For settlement purposes only, the Court certifies the Settlement Class defined in the Settlement Agreement pursuant to Federal Rule of Civil Procedure 23(e); d. The Settlement Class Period for the Settlement Class Members who worked in any state outside of those included in separately-defined State Settlement Class Periods is from Aug. 19, 2016 (300 days before the charge was filed) through Dec. 4, 2017 (when Chase revised the 2016 policy). The Settlement Class Member's non-primary caregiver leave or request for non-primary or primary caregiver leave must have occurred during the Settlement Class Period or within 16 weeks before the Settlement Class Period (as the person still would have been eligible for paid parental leave benefits during the Settlement Class Period); e. If a Settlement Class Member worked in a state included in the State Settlement Class Periods, the Settlement Class Member's non-primary caregiver leave or request for non-primary or primary caregiver leave must have occurred during the applicable State Settlement Class Period or within 12 weeks before the State Settlement Class Period (as the person still would have been eligible for paid parental leave benefits during the State Settlement Class Period), except that for Arkansas, Louisiana, Minnesota, North Carolina, Oregon, South Dakota, Tennessee and District of Columbia the Settlement Class Member's non-primary caregiver leave or request for non-primary or primary caregiver leave must have occurred during the applicable State Settlement Class Period or within sixteen (16) weeks before the State Settlement Class Period. The following State Settlement Class Periods apply for the following states: (i) Alaska, Maine, New Jersey, and West Virginia: June 15, 2015 through Dec. 4, 2017; (ii) Michigan, New York, Washington, and Vermont: June 15, 2014 through Dec. 4, 2017; (iii) California: June 15, 2013 through Dec. 4, 2017; (iv) Kentucky: June 15, 2012 through Dec. 4, 2017; (v) Ohio: June 15, 2011 through Dec. 4, 2017; and (vi) Arkansas, Louisiana, Minnesota, North Carolina, Oregon, South Dakota, Tennessee, and District of Columbia: June 15, 2016 through Dec. 4, 2017; f. Outten & Golden LLP and the American Civil Liberties Union Women's Rights Project ("ACLU"), which the Court previously appointed as Class Counsel in its Preliminary Approval Order, satisfy the adequacy requirements of Rule 23(g); g. The Court approves the settlement and all terms set forth in the Settlement Agreement; h. The attorneys at Outten & Golden LLP and the ACLU who prosecuted the case are experienced civil rights and employment lawyers with good reputations among the employment law bar. The Court grants the Plaintiff's Motion for Attorneys' Fees and awards the Class Counsel $1,666,666.67 in attorneys' fees, which is 33 1/3% of the Gross Settlement Amount, plus $29,726.43 in costs and expenses reasonably expended litigating and resolving the lawsuit. These amounts will be paid from the Gross Settlement Amount; i. The Court finds reasonable the service payment for Plaintiff Derek Rotondo in the amount of $20,000 in recognition of the services he rendered on behalf of the Settlement Class Members. This amount will be paid from the Gross Settlement Amount; j. The Court approves the Settlement Administrator's fees and costs of no more than $55,698. Of the amount, $50,000 will be paid by the Defendant and the excess will be paid out of the Gross Settlement Amount; k. Any amount remaining 20 days after the expiration of the Acceptance Period for Settlement Checks will be redistributed among the Settlement Class Members who have timely cashed their checks or, if the amount remaining is small enough that a redistribution is not sensible in the discretion of the Class Counsel, the unclaimed will be donated under the cy pres doctrine. The Parties will identify an organization or organizations to serve as the cy pres recipient if there are unclaimed settlement funds, which will be subject to this Court's approval; l. If no individual or party appeals this Order, the Settlement Effective Date will be 31 days after the Order is entered; m. The Settlement Administrator will disburse Settlement Checks to the Settlement Class Members, the Named Plaintiff's Service Award, and the Class Counsel's attorneys' fees, costs, and expenses within 30 days of the Effective Date; n. The Litigation is dismissed with prejudice, with each side to assume their respective costs and attorneys' fees (other than such costs and attorneys' fees approved by the Court as set forth); and o. The Parties will abide by all terms of the Settlement Agreement. If any party objects to the Report and Recommendation, that party may, within 14 days of the date of the Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made. A full-text copy of the Magistrate Judge's Nov. 20, 2019 Report & Recommendation is available at https://is.gd/HI6R91 from Leagle.com. Derek Rotondo, on behalf of himself and all others similarly situated, Plaintiff, represented by Freda J. Levenson -- flevenson@acluohio.org -- ACLU of OHIO, Deirdre Aaron -- daaron@outtengolden.com -- Outten & Golden LLP, pro hac vice, Galen Sherwin -- gsherwin@aclu.org -- American Civil Liberties Union, pro hac vice, Peter Romer-Friedman -- prf@outtengolden.com -- Outten & Golden LLP, pro hac vice & Pooja Shethji -- pshethji@outtengolden.com -- Outten & Golden LLP, pro hac vice. JPMorgan Chase Bank N.A., Defendant, represented by Alyson A. Terrell -- aterrell@ulmer.com -- Ulmer & Berne LLP, Emily M. Loeb -- eloeb@jenner.com -- Jenner & Block LLP, pro hac vice, Jeffrey S. Dunlap -- jdunlap@ulmer.com -- Ulmer & Berne LLP, Precious S. Jacobs -- pjacobs@jenner.com -- Jenner & Block LLP, pro hac vice, Samuel C. Birnbaum -- sbirnbaum@jenner.com -- Jenner & Block LLP, pro hac vice & Thomas J. Perrelli -- tperrelli@jenner.com -- Jenner & Block LLP, pro hac vice. JUST BRANDS: Faces Class Action Over JustCBD Gummy Candy -------------------------------------------------------- Law360 reports that an Illinois man sued CBD company Just Brands USA in federal court on Oct. 28, claiming he tested positive for THC after eating some of the company's JustCBD gummy candy. Trevor Darrow bought JustCBD watermelon rings in July, thinking they would help him sleep, according to the suit. [GN] JUUL LABS: Jefferson PSD Sues Over Sale of E-Cigarettes to Minors ----------------------------------------------------------------- Jefferson County Public School District, individually and on behalf of all similar situated school districts v. JUUL LABS, INC.; ALTRIA GROUP, INC.; ALTRIA CLIENT SERVICES; ALTRIA GROUP DISTRIBUTION COMPANY; NU MARK LLC; PHILIP MORRIS USA, INC.; AND JOHN DOES 1-100, INCLUSIVE, Case No. 5:19-cv-00136-DCB-MTP (S.D. Miss., Dec. 5, 2019), arises out of the injuries to the Plaintiff's property, students, and employees caused by the Defendants' wrongful conduct in marketing of e-cigarettes to minors. The Defendants' marketing strategy, advertising, and product design target minors, especially teenagers, and has dramatically increased the use of e-cigarettes amongst minors, like the student body in Jefferson County Public School District, according to the complaint. The Defendants' conduct has caused many students to become addicted to the Defendants' e-cigarette products. The Plaintiff, and similarly situated school districts in Mississippi, redirected resources to combat the deceptive marketing scheme of the Defendants and to educate the school children of the true dangers of e-cigarettes, says the complaint. The Plaintiff is a school district located in Jefferson County, Mississippi. JUUL manufactures, designs, sells, markets, promotes and distributes JUUL e-cigarettes, JUULpods and accessories throughout the state of Mississippi and the nation.[BN] The Plaintiff is represented by: T. Roe Frazer II, Esq. Patrick McMurtray, Esq. Thomas Roe Frazer III, Esq. W. Matthew Pettit, Esq. FRAZER PLC 30 Burton Hills Blvd., Suite 450 Nashville, TN 37215 Phone: (615) 647-6464 Fax: (866) 314-2466 Email: roe@frazer.law patrick@frazer.law trey@frazer.law mpettit@frazer.law KNEIPP CORPORATION: Mahoney Files ADA Suit in E.D. Pennsylvania --------------------------------------------------------------- A class action lawsuit has been filed against KNEIPP CORPORATION OF AMERICA, INC. The case is styled as JOHN MAHONEY ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff v. KNEIPP CORPORATION OF AMERICA, INC., Defendant, Case No. 2:19-cv-05757-GEKP (E.D. Pa., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Kneipp has created natural bath and body products designed to improve well-being.[BN] The Plaintiff is represented by: David S. Glanzberg, Esq. GLANZBERG TOBIA & ASSOCIATES PC 123 S. BROAD STREET SUITE 1640 PHILADELPHIA, PA 19109 Phone: (215) 981-5400 Email: dglanzberg@aol.com LA PECORA: Reeves Suit Settlement Gets Initial Court Approval ------------------------------------------------------------- In the case, STEVEN REEVES and KRISTEN BOOTH, on behalf of themselves and other similarly situated, Plaintiff, v. LA PECORA BIANCA, INC., LA PECORA BIANCA HOLDINGS, LLC, LPB1 LLC and MARK BARAK, in his individual and professional capacities, Defendants, Docket No. 151153/2018, Motion Seq. No. 002 (N.Y. Sup.), Judge Robert D. Kalish of the New York County Supreme Court granted the Plaintiffs' Motion for Preliminary Approval of Class Action Settlement and Approval of Proposed Notice of Settlement. On Nov. 6, 2019, the matter came before the Court on the Motion for Preliminary Approval. The Defendants did not oppose the Plaintiffs' Motion for Preliminary Approval. Judge Kalish has considered the Plaintiffs' request for approval of a class pursuant to CPLR 901 and 902 for settlement purposes and the Class Action Settlement Agreement and Release, filed in its final form on June 28, 2019, and the Declaration of Innessa M. Huot filed on the same day. He finds on a preliminary basis that the Settlement memorialized in the Settlement Agreement, filed with the Court, is fair, reasonable and adequate, and therefore, meets the requirements for Preliminary Approval such that notice to the class is appropriate. Therefore, he granted the Plaintiffs' Motion for Preliminary Approval. Pursuant to CPLR 901 and 902, the Judge conditionally certified, for settlement purposes only, a Settlement Class consisting of all individuals who have been employed by Defendants in any position at any time from Aug. 1, 2015 to Jan. 23, 2019. He appointed (i) Plaintiffs Steven Reeves and Kristen Booth to represent the Settlement Class; (ii) Faruqi & Faruqi, LLP as the Class Counsel; and (iii) Rust Consulting, Inc. as the Settlement Administrator. Consistent with the terms of the Settlement Agreement, the Defendants are authorized to send personal and confidential information concerning the Class Members to the Settlement Administrator, including, without limitation, the Social Security Numbers of the Class Members. The Judge approved the proposed Notice of Settlement of Class Action Lawsuit, as well as the Claim Form attached thereto, filed on Nov. 19, 2019. Any written objection to the Settlement made by a Settlement Class Member must be sent to the Settlement Administrator by March 13, 2020. The Judge adopted the settlement approval process as set forth in the Settlement Agreement. He ordered the Parties to carry out the Settlement according to the terms of the Settlement Agreement. The Fairness Hearing is set for April 7, 2020, at 2:15 p.m. The Plaintiffs shall file their motion for Final Approval of the Settlement, and the Class Counsel shall file their motion for attorneys' fees, litigation costs and expenses, and service awards on or before April 3, 2020. The following dates shall govern the schedule in the action: a. November 22, 2019 - La Pecora Bianca shall provide the Class Counsel and the Settlement Administrator with the names, last known addresses, email addresses, and telephone numbers of the Settlement Class Members. La Pecora Bianca shall also provide the Settlement Administrator with the social security numbers of the Settlement Class Members. b. Dec. 13, 2019 - Mailing of Notice and Claim Form c. Feb. 7, 2020 - Follow up mailing of Postcards d. March 13, 2020 - Last day for the Settlement Class Members to Opt-In or Opt-Out of the Settlement or to mail written objections to the Settlement to the Settlement Administrator e. April 3, 2020 - Last day for filing and serving of papers in support of Final Approval of the Settlement with the Court f. April 7, 2020 at 2:15 p.m. - Fairness Hearing A full-text copy of the Court's Nov. 20, 2019 Decision + Order is available at https://is.gd/c6DjgD from Leagle.com. LACOSTE USA: Violates ADA, Dominguez Suit Asserts ------------------------------------------------- A class action lawsuit has been filed against Lacoste USA, Inc. The case is styled as Yovanny Dominguez and on behalf of all others persons similarly situated, Plaintiff v. Lacoste USA, Inc., Defendant, Case No. 1:19-cv-11182 (S.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Lacoste Usa, Inc. retails clothings. The Company offers jackets, sweaters, shirts, bottoms, tops and dresses, shoes, watches, bags, fragrance, and other related accessories for mens, womens, and kids.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com LAS SIRENAS: Cisneros Seeks to Recover Unpaid Overtime Wages ------------------------------------------------------------ Noe Soriano Cisneros on behalf of himself, and other similarly situated employees v. LAS SIRENAS RESTAURANT INC., doing business as LAS SIRENAS MEXICAN RESTAURANT, Case No. 1:19-cv-11152 (S.D.N.Y., Dec. 5, 2019), is brought against the Defendants pursuant to the Fair Labor Standards Act and the New York Labor Law seeking to recover unpaid overtime compensation, unpaid "spread of hours" premiums for each day he worked more than 10 hours, liquidated and statutory damages, prejudgment and post-judgment interest, and attorneys' fees and costs. The Plaintiff worked over 40 hours per week, and often in excess of 10 hours per shift. The Plaintiff was paid hourly, but work performed above 40 hours per week was not paid at time and one-half the Plaintiff's regular rate of pay, as required by state and federal law. The Defendant knowingly and willfully failed to pay the Plaintiff lawfully earned overtime compensation, in contravention of the FLSA and New York Labor Law, says the complaint. The Plaintiff was employed by the Defendants in Bronx County, New York, as a cook food/preparer and cleaner, at the Defendant's restaurant business. The Defendant owns and operates a Japanese restaurant known as "Tampopo Ramen," located in the City of New York.[BN] The Plaintiff is represented by: Justin Cilenti, Esq. Peter H. Cooper, Esq. CILENTI & COOPER, PLLC 10 Grand Central 155 East 44th Street - 6th Floor New York, NY 10017 Phone: (212) 209-3933 Fax: (212) 209-7102 Email: info@jcpclaw.com LIBRE TECHNOLOGY: Court Certifies Class in Hudson Case ------------------------------------------------------ In the case, EBONY HUDSON, an individual and on behalf of all others similarly situated, Plaintiff, v. LIBRE TECHNOLOGY INC., doing business as Student Loan Service, Docupop, and Student Loan Service, US; ANTONY MURIGU; JASON BLACKBURN; and BRIAN BLACKBURN, Defendants, Case No. 3:18-cv-1371-GPC-KSC (S.D. Cal.), Judge Gonzalo P. Curiel of the U.S. District Court for the Southern District of California granted in part and denied in part Hudson's unopposed Motion for Preliminary Approval of Class/Collective Action Settlement. On June 21, 2018, Plaintiff Hudson brought the putative Rule 23 class action/FLSA collective action against Defendants Libre, Murigu (its owner), Jason Blackburn (its COO), and Brian Blackburn (Director of Operations) for violations of California laws and the Fair Labor Standards Act ("FLSA"). On April 12, 2019, the Court granted a joint request to allow the Plaintiff to file a first amended complaint ("FAC"). According to the FAC, the Plaintiff was employed by the Defendants as a "Member Success Coordinator," or "Agent," responsible for making calls to prospective customers and assisting individuals in applying for student loan consolidations and repayment programs. She alleges that the Defendants failed to pay coordinators for the time required to startup, login, and sign out of their computer systems before starting and ending their day. As a result, the Plaintiff and other coordinators were required to work off the clock when booting up and shutting down their computer systems. In addition, she alleges that the Defendants failed to pay its coordinators the entire amount due under its commission-based compensation system, failed to include bonus pay when calculating the regular rate of pay, failed to pay for all overtime hours, and failed to provide the Plaintiff and other coordinators with uninterrupted, work-free 30-minute meal periods and paid 10-minute rest breaks. On the basis of these allegations, Plaintiff's FAC raises the following claims: (1) agents were not paid for all wages and overtime due during their employment pursuanthe t to the Fair Labor Standards Act, 29 U.S.C. Section 201 et seq.; (2) agents were not paid minimum wage and regular wages for all hours worked pursuant to California Labor Codes Sections 223, 1194, 1197, 1197.1 and IWC Wage Order 4; (3) agents were not paid overtime pursuant to California Labor Codes Sections 510, 1194, 1198 and IWC Wage Order 4; (4) agents were subject to unlawful deductions in violation of California Labor Codes Sections 221 and 223; (5) agents were not provided rest and meal periods pursuant to California Labor Codes Sections 226.7 and 512; (6) agents were not timely paid wages owed in accordance with California Labor Codes Sections 202, 203, and 203; (7) the Defendants failed to provide accurate wage statements in accordance with California Labor Code Section 226; (8) the Defendants engaged in unfair competition in violation of California's Unfair Competition Law, Business and Professions Code section 17200 et seq.; (9) the Defendants breached the covenant of good faith and fair dealing; and (10) that by engaging in these alleged practices, the Plaintiff and all others similarly situated were entitled to recover penalties pursuant to the Private Attorney General Act ("PAGA") pursuant to California Labor Code Section 2698. On Jan. 24, 2018, the parties attended a full-day mediation session with Steven Rottman, a mediator who the Plaintiff alleges has extensive experience with wage and hour cases. At the conclusion of the mediation, the parties signed a memorandum of understanding detailing the material terms of the Settlement. Thereafter, the parties jointly moved to allow the Plaintiff to amend her complaint to add additional claims as to lunch break violations uncovered during the course of the parties' settlement discussions. The filing resulted in the FAC, i.e., the operative complaint. On June 6, 2019, the Plaintiff filed the instant unopposed Motion for Preliminary Approval of a Class Action Settlement and Certification of Settlement Class. She seeks, inter alia, Rule 23 preliminary class certification for a Settlement Class comprised of all persons who, during the Class Period, have previously been or currently are employed in California by Libre Technology, Inc. dba Student Loan Service, Docupop, and Student Loan Service, US, as an hourly-paid 'non-exempt' employee from June 21, 2014, to the date of Preliminary Approval. She also seeks preliminary approval for the terms of a settlement agreement reached with Defendants and executed on May 23, 2019. The Settlement provides for a gross settlement amount of $425,000, to be distributed as follows: up to $127,500 in attorneys' fees, $15,000 for litigation costs, $6,000 to the Plaintiff as an incentive award, $5,500 to the proposed claims administrator, $21,250 in Private Attorney General Act ("PAGA") penalties, and the rest to be allocated on a pro rata basis to the participating Class Members based on the hours worked during the class period. The Plaintiff predicts that the Settlement would result in a $2,361 check (before tax) for the average employee. Prior to the hearing, the Court issued a tentative order denying in part and granting in part preliminary approval of proposed class settlement for litigant use only outlining potential areas of deficiencies in the proposed settlement. A hearing was held on Aug. 23, 2019. After a review of the briefs, supporting documentation, the applicable law, and hearing oral argument, Judge Curiel granted in part and denied in part the Motion for Preliminary Approval of Class/Collective Action Settlement. Specifically, the Judge granted the Plaintiff's request to (1) preliminarily certify the Rule 23 class, (2) be named the Class Representative, (3) and appoint Trenton R. Kashima and Kevin J. Stroops as the class counsel. He also sua sponte conditionally certified the FLSA collective. The Judge denied her request for preliminary approval of the Settlement. The Judge concluded that there still remains an issue concerning the FLSA notice and opt-in procedures that will require modification. He found that preliminary approval does not include an opt-in procedure or a separate allocation of payments for FLSA claims. For purposes of the parties' interest in streamlining the process, other courts have noted that the parties may direct putative FLSA Group members to send opt-in forms to the Settlement Administrator and then having the Plaintiff file those opt-in forms with the court. However, the Judge left it up to the parties to present an opt-in procedure and allocation of separate funds that comply with Section 216(b). Finally, the proposed notice does not explain the hybrid nature of the case and instead refers to a "class action settlement" and does not mention Rule 23 or the FLSA. The Judge permited the parties an additional 60 days from the issuance of the Order to file a renewed motion for preliminary approval of class action settlement that cures the deficiencies identified by the Order. A full-text copy of the Court's Nov. 13, 2019 Order is available at https://is.gd/WkxlJq from Leagle.com. Ebony Hudson, individually, and on behalf of all others similarly situated, Plaintiff, represented by Kevin J. Stoops -- kstoops@sommerspc.com -- Sommers Schwartz, P.C., pro hac vice & Trenton R. Kashima -- TKashima@sommerspc.com -- Finkelstein & Krinsk, LLP. Libre Technology Inc., doing business as Student Loan Service doing business as Student Loan Service, US, Anthony Murigu, Jason Blackburn & Brian Blackburn, Defendants, represented by Andrea Leigh Rosenkranz -- arosenkranz@ohaganmeyer.com -- O'Hagan Meyer LLC, Gouya A. Ranekouhi -- granekouhi@ohaganmeyer.com -- O'Hagan Meyer & Matthew Craig Sgnilek -- msgnilek@ohaganmeyer.com -- O'Hagan Meyer LLP. LOAD TRAIL: Lopez Seeks to Recoup Unpaid Overtime Pay for Welders ----------------------------------------------------------------- JUAN LOPEZ BARRIOS, AND JOSE FRAIRE HERNANDEZ, Individually, and on behalf of all others similarly situated, Plaintiffs v. LOAD TRAIL, LLC, Defendant, Case No. 4:19-cv-00811 (E.D. Tex., Nov. 7, 2019), seeks to recover unpaid overtime wages for the Plaintiffs and other welders. Plaintiffs Lopez and Fraire are former employees of Defendant Load Trail, LLC. They worked as welders for Defendant from 2007 and 2013, respectively, until August 28, 2018. The Defendant maintained a practice with Lopez, Fraire, and others, where it paid them on a piece rate basis. The Plaintiffs, if not universally, worked in excess of 40 hours per workweek and were not paid all overtime premium compensation for such overtime hours, the lawsuit says. The Defendant maintains a business in Sumner, Texas, where it manufacturers trailers.[BN] The Plaintiffs are represented by: Matthew R. Scott, Esq. Javier Perez, Esq. SCOTT PEREZ LLP Founders Square 900 Jackson Street, Suite 550 Dallas, TX 75202 Telephone: 214-965-9675 Facsimile: 214-965-9680 E-mail: matt.scott@scottperezlaw.com javier.perez@scottperezlaw.com - and - Nicanor (Nick) Pesina, Jr. ROBERTS & ROBERTS, P.C. 118 West Fourth Street Tyler, TX 75701-4000 Telephone: 903 597-6655 Facsimile: 903 597-1600 E-mail: nick@robertslawfirm.com LSG GROUP LLC: Frisby Sues in N.D. Ill. for Violating BIPA & FLSA ----------------------------------------------------------------- Larry Frisby, on behalf of himself and all others similarly situated v. LSG GROUP, LLC, and SKY CHEFS, INC., Case No. 1:19-cv-07989 (N.D. Ill., Dec. 5, 2019), accuses the Defendants of violating the Illinois Biometric Information Privacy Act, the federal Fair Labor Standards Act, the Illinois Minimum Wage Law, and the City of Chicago Minimum Wage Ordinance. The Plaintiff says he has never been informed of the specific limited purposes or length of time for which the Defendants collected, stored, used and/or disseminated his biometric data. The Plaintiff has never been informed of any biometric data retention policy developed by the Defendants, nor has he ever been informed whether the Defendants will ever permanently delete his biometric data. The Plaintiff also says he has never been provided with nor ever signed a written release allowing the Defendants to collect, store, use, or disseminate his biometric data. Mr. Frisby also alleges that no time clocked in by him or other similarly situated employees of either of the Defendants prior to the start time of the scheduled shift was in fact compensated by the Defendants. The Defendants, instead, rounded the pre-shift and post-shift time worked by the Plaintiff and others to their regularly scheduled shift times; and such rounding was typically to the detriment of the employee, and to the benefit of the Defendants, says the complaint. The Plaintiff worked for the Defendants from November 2015 through March 2019 as a driver's helper, a driver and in other related positions in customer service. The Defendants operate in-flight catering and related food services for the airline industry, world-wide.[BN] The Plaintiff is represented by: Jeffrey Grant Brown, Esq. JEFFREY GRANT BROWN, P.C. 221 North LaSalle Street, Suite 1414 Chicago, IL 60601 Phone: 312.789.9700 Email: jeff@JGBrownlaw.com - and - Glen J. Dunn, Jr., Esq. GLEN J. DUNN & ASSOCIATES, LTD. 221 North LaSalle Street, Suite 1414 Chicago, IL 60601 Phone: 312.880.1010 Email: GDunn@GJDlaw.com LYFT INC: ILRCSF Moves to Certify Class of PWDs, Who Need WAVs -------------------------------------------------------------- In the lawsuit styled INDEPENDENT LIVING RESOURCE CENTER SAN FRANCISCO, a California non-profit corporation, JUDITH SMITH, an individual, JULIE FULLER, an individual, TARA AYRES, an individual, SASCHA BITTNER, an individual, and COMMUNITY RESOURCES FOR INDEPENDENT LIVING, a California non-profit corporation v. LYFT, Inc., a Delaware corporation, Case No. 3:19-cv-01438-WHA (N.D. Cal.), the Plaintiffs ask the Court to certify their claims as a class action. The proposed Rule 23(b)(2) class is defined as: All individuals in San Francisco County, Alameda County, and Contra Costa County who are disabled because of a mobility impairment, use wheelchairs or other mobility devices and therefore need Wheelchair Accessible Vehicles ("WAVs") for transportation, and who have been and continue to be deterred from using Lyft's transportation service due to Lyft's failure to provide equivalent transportation services for WAV users in those counties. Excluded from the Class is any individual who has downloaded the Lyft application. To the extent the Court disagrees with their definition for the Plaintiff Class, the Plaintiffs move for the Court to redefine or modify that definition, as such determinations are within the Court's discretion. The Plaintiffs also ask the Court to appoint them as Class Representatives, and to appoint their counsel as Class Counsel pursuant to Rule 23(g) of the Federal Rules of Civil Procedure. The Court will commence a hearing on January 30, 2020, at 8:00 a.m., to consider the Motion.[CC] The Plaintiffs are represented by: Stuart Seaborn, Esq. Melissa Riess, Esq. Rebecca Serbin, Esq. DISABILITY RIGHTS ADVOCATES 2001 Center Street, Fourth Floor Berkeley, CA 94704-1204 Telephone: (510) 665-8644 Facsimile: (510) 665-8511 E-mail: sseaborn@dralegal.org mriess@dralegal.org rserbin@dralegal.org MADEWELL INC: Mendez Files ADA Suit in S.D. New York ---------------------------------------------------- A class action lawsuit has been filed against Madewell Inc. The case is styled as Himelda Mendez and on behalf of all persons similarly situated, Plaintiff v. Madewell Inc., Defendant, Case No. 1:19-cv-11159 (S.D.N.Y., Dec. 5, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Madewell Inc provides women's apparel and accessories.[BN] The Plaintiff is represented by: Bradly Gurion Marks, Esq. The Marks Law Firm PC 175 Varick Street 3rd Floor New York, NY 10014 Phone: (646) 770-3775 Fax: (646) 867-2639 Email: bmarkslaw@gmail.com MCKESSON CORP: Opioid Case Settlement Reached Prior to Trial ------------------------------------------------------------ Aaron Cooper, Kristina Sgueglia and Holly Yan, writing for CNN, report that four defendants accused in thousands of lawsuits over the opioid epidemic reached a settlement, averting a high-profile trial that was just hours away from starting. Hours before the first federal trial in the opioid epidemic was set to begin, four pharmaceutical companies reached a settlement totaling $260 million. The four companies -- McKesson Corp., Cardinal Health Inc., AmerisourceBergen Corp. and Teva Pharmaceutical Industries Ltd. -- reached a settlement with the two plaintiffs, Summit and Cuyahoga counties in Ohio. McKesson Corp., Cardinal Health Inc. and AmerisourceBergen Corp. will pay out a combined $215 million immediately, and Teva Pharmaceutical will pay $20 million, officials said at a press conference. Teva will also be donating $25 million worth of Suboxone, according a source familiar with the settlement. The settlement was struck between midnight and 1 a.m. on Oct. 21, and the case was dismissed with prejudice, US District Court Judge Dan Polster said. The defendants were supposed to appear in a Cleveland court on Oct. 21 in the first federal multidistrict litigation (MDL) trial involving the opioid epidemic. Thousands more plaintiffs' cases are awaiting trial. MDL is similar to class-action lawsuits in the sense that both consolidate plaintiffs' pretrial proceedings for the sake of efficiency. But unlike with class-action lawsuits, each plaintiff in an MDL case can get a different verdict or award. The plaintiffs in this MDL case -- Summit and Cuyahoga counties -- were the first among more than 2,700 plaintiff communities to head to trial. Three of the defendants -- AmerisourceBergen, Cardinal Health and McKesson -- issued a joint statement saying the settlement does not mean they are at fault. "While the companies strongly dispute the allegations made by the two counties, they believe settling the bellwether trial is an important stepping stone to achieving a global resolution and delivering meaningful relief," the joint statement said. "The companies expect settlement funds to be used in support of initiatives to combat the opioid epidemic, including treatment, rehabilitation, mental health and other important efforts. The distributors remain deeply concerned about the impact the opioid epidemic is having on families and communities across the nation -- and are committed to being part of the solution." The money will go towards treatment Attorneys general from four states -- North Carolina, Tennessee, Pennsylvania and Texas -- lauded the settlement as "an important step" in combating the opioid epidemic. "People in every corner of the country have been hurt by this crisis, and it is critical that settlement funds be distributed fairly across states, cities, and counties and used wisely to combat the crisis," the attorneys general said in a joint statement. "The global resolution we are working to finalize will accomplish those goals while also ensuring that these companies change their business practices to prevent a public health crisis like this from ever happening again." Both Summit County and Cuyahoga County have announced plans for how settlement awards would be allocated. "This is a national emergency right now, and all counties, all municipalities, all villagers need help right now to combat this crisis," Cuyahoga County Prosecutor Michael O'Malley said. "We are looking at using this money for treatment, and getting people into programs and helping first responders as they deal with this crisis." Two other defendants were also involved in this case -- a smaller pharmaceutical company, Henry Schein Medical, and the pharmacy chain Walgreens. Walgreens was not part of the settlement. Judge Polster said claims against the company have been cut off and moved to a different track, with a schedule to follow. Walgreens released a statement saying it is "completely unlike the wholesalers involved in the national opioid litigation." "Before 2014, Walgreens delivered opioid medications -- among many other types of medications -- only to our own pharmacies, staffed by our own pharmacy professionals,' company spokesman Phil Caruso said. Henry Schein Medical will be making a donation of $1 million to establish an educational foundation with Summit County and will pay $250,000 of the county's expenses, the company said in a written statement. Henry Schein said the plaintiffs have "agreed to dismiss the Company." More work needs to be done, attorneys say The sudden settlement followed marathon negotiations that went nowhere. The talks lasted more than 10 hours and involved the CEOs of the four major companies; attorneys general from Tennessee, North Carolina, Pennsylvania and Texas' and lawyers representing over 2,000 state, local and Native American tribal governments. Attorneys for the plaintiffs welcomed the settlement, but said more work needs to be done in fighting the opioid epidemic. "The proposed settlement will make significant progress to abate the epidemic by providing resources for and applying funds directly to necessary opioid-recovery programs," said a joint statement from Paul J. Hanly Jr., Paul T. Farrell Jr. and Joe Rice. "Throughout this process, Summit and Cuyahoga Counties have tirelessly investigated, litigated, and prepared for the bellwether trial that would have begun if not for this agreement. In doing so, the communities revealed facts about the roles of the opioid industry that created and fueled the opioid epidemic." Summit County Executive Ilene Shapiro said the settlement is just one step in a long road ahead. "The long-term impacts on our children that have been byproducts of this health crisis won't end just because a settlement has been done," the county official said. But for now, she added, "we will at least be able . . . to move on with something to help our folks in the shorter term." CNN's Evan Simko-Benarski, Brian Vitagliano, Ben Tinker, Amir Vera and Kate Trafecante contributed to this report. [GN] MDL 1720: Court Denies Bid to Dismiss Antitrust Suit ---------------------------------------------------- In the case, BARRY'S CUT RATE STORES INC.; DDMB, INC. d/b/a EMPORIUM ARCADE BAR; DDMB 2, LLC d/b/a EMPORIUM LOGAN SQUARE; BOSS DENTAL CARE; RUNCENTRAL, LLC; CMP CONSULTING SERV., INC.; TOWN KITCHEN, LLC d/b/a TOWN KITCHEN BAR; GENERIC DEPOT 3, INC. d/b/a PRESCRIPTION DEPOT; and PUREONE, LLC d/b/a SALON PURE, Plaintiffs, v. VISA, INC.; MASTERCARD INCORPORATED; MASTERCARD INTERNATIONAL INCORPORATED; BANK OF AMERICA, N.A.; BA MERCHANT SERVICES LLC (f/k/a DEFENDANT NATIONAL PROCESSING, INC.); BANK OF AMERICA CORPORATION; BARCLAYS BANK PLC; BARCLAYS BANK DELAWARE; BARCLAYS FINANCIAL CORP.; CAPITAL ONE BANK, (USA), N.A.; CAPITAL ONE F.S.B.; CAPITAL ONE FINANCIAL CORPORATION; CHASE BANK USA, N.A.; CHASE MANHATTAN BANK USA, N.A.; CHASE PAYMENTECH SOLUTIONS, LLC; JPMORGAN CHASE BANK, N.A.; JPMORGAN CHASE & CO.; CITIBANK (SOUTH DAKOTA), N.A.; CITIBANK N.A.; CITIGROUP, INC.; CITICORP; and WELLS FARGO & COMPANY, Defendants, Case No. 05-MD-1720 (MKB) (JO) (E.D. N.Y.), Judge Margo K. Brodie of the U.S. District Court for the Eastern District of New York denied the Bank Defendants' joint motion to dismiss the claims against them pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of standing and for failure to state a claim. A putative Rule 23(b)(2) class of millions of merchants commenced the antitrust action under the Clayton Act to prevent and restrain violations of the Sherman Act, and the California Cartwright Act, seeking injunctive relief against Defendants Visa and Mastercard networks, as well as various issuing and acquiring banks ("Bank Defendants"). The Plaintiffs seek to represent a class of merchants that accept Visa- and Mastercard-branded cards as forms of payment, and allege that the Defendants engage in anticompetitive conduct that harms competition and imposes supracompetitive and collectively-fixed fees on the merchants. The Plaintiffs seek declaratory and injunctive relief against all the Defendants. They request a declaratory judgment, pursuant to Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. Section 2201(a), declaring that the Defendants' conduct is unlawful as alleged in the Complaint, and further request that the Court enjoins and restrains the wrongful conduct alleged in the Complaint, pursuant to Section 16 of the Clayton Act. As to all the Defendants, including tge Bank Defendants, the Plaintiffs request, among other things, that the Court declares, adjudges, and decrees that the Defendants have committed the violations of the federal and state antitrust laws alleged in the Complaint; orders that the Defendants, their directors, officers, employees, agents, successors, members, and all persons in active concert and participation with them be enjoined and restrained from, in any manner, directly or indirectly, committing the violations of the Cartwright and Sherman Acts; and grants further relief as is necessary to correct for the anticompetitive market effects caused by the Defendants' unlawful conduct. Currently before the Court is the Bank Defendants' joint motion to dismiss the claims against them pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of standing and for failure to state a claim upon which relief can be granted. They argue that the Plaintiffs lack Article III standing to pursue the claims against them because they have not plausibly alleged that the Bank Defendants are capable of redressing the alleged harm, i.e., the Plaintiffs have not plausibly alleged that any of the Bank Defendants, individually or collectively, has any authority to change the networks' rules. Because the Plaintiffs have standing and have plausibly alleged that the Bank Defendants are part of a conspiracy to unlawfully benefit from supracompetitive interchange fees, Judge Brodie denied the Bank Defendants' motion to dismiss the claims against them. Among other things, she finds that (i) there is a substantial likelihood that a favorable decision on the merits and a grant of the requested relief would provide partial redress; (ii) the Plaintiffs have alleged an ongoing antitrust conspiracy; (iii) the Plaintiffs have sufficiently alleged the Bank Defendants' failure to withdraw from an ongoing conspiracy; (iv) the Plaintiffs have sufficiently alleged a hub-and-spoke conspiracy and unlawful agreement; (v) the Plaintiffs have alleged agreement between the "spokes," i.e., the Bank Defendants, and more than simple membership in a trade association; (vi) the Plaintiffs have alleged more than parallel conduct; and (vii) Bell Atl. Corp. v. Twombly does not compel a contrary result. A full-text copy of the Court's Nov. 20, 2019 Memorandum & Order is available at https://is.gd/jJhTfZ from Leagle.com. Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, In Re, represented by Linda P. Nussbaum -- lnussbaum@nussbaumpc.com -- Nussbaum Law Group, PC, Alexandra S. Bernay -- xanb@rgrdlaw.com -- Coughlin Stoia Geller Rudman & Robbins LLP, pro hac vice, Benjamin R. Nagin -- BNAGIN@SIDLEY.COM -- Sidley Austin LLP, Carmen A. Medici -- cmedici@rgrdlaw.com -- Coughlin Stoia Geller Rudman & Robbins LLP, pro hac vice, D. Cameron Baker, Coughlin Stoia Geller Rudman & Robbins LLP, David W. Mitchell, Coughlin Stoia Geller Rudman & Robbins LLP, pro hac vice, Dennis Stewart -- dstewart@hulettharper.com -- Hulett Harper Stewart LLP, Eric P. Barstad -- EBarstad@RobinsKaplan.com -- Robins Kaplan LLP, Eric H. Grush, Sidley Austin LLP, Gary R. Carney, Jr. -- gcarney@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garison, LLP, H. Laddie Montague -- hlmontague@bm.net -- Berger & Montague, P.C., Jonah H. Goldstein -- jonahg@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, K. Craig Wildfang -- KCWildfang@RobinsKaplan.com -- Robins Kaplan L.L.P., Merrill G. Davidoff -- mdavidoff@bm.net -- Beger & Montague, P.C., Patrick Joseph Coughlin -- patc@rgrdlaw.com -- Robbins Geller, Ryan W. Marth -- RMarth@RobinsKaplan.com -- Robins Kaplan LLP, pro hac vice, Stacey Slaughter -- SSlaughter@RobinsKaplan.com -- Robins, Kaplan, Miller & Ciresi L.L.P. & Thomas J. Undlin -- TUndlin@RobinsKaplan.com -- Robins Kaplan, L.L.P. Plaintiffs in civil action Jetro Holding, Inc. et al v. Visa U.S.A., Inc. et al & Plaintiffs in civil action American Booksellers Association v. Visa U.S.A., Inc. et al, Plaintiffs, represented by K. Craig Wildfang -- KCWildfang@RobinsKaplan.com -- Robins Kaplan L.L.P., Richard J. Kilsheimer -- rkilsheimer@kaplanfox.com -- Kaplan Fox & Kilsheimer LLP, Thomas M. Campbell, Smith Campbell, LLP & William Jay Blechman -- wblechman@knpa.com -- Kenny Nachwalter, P.A., pro hac vice. Plaintiffs in civil action Jetro Holding, Inc. et al v. Visa U.S.A., Inc., Plaintiff, represented by Jeffrey Isaac Shinder -- jshinder@constantinecannon.com -- Constantine Cannon LLP. Plaintiffs in civil action National Association of Convenience Stores et al v. Visa U.S.A., Inc. et al & Plaintiffs in civil action National Grocers Association et al v. Visa U.S.A., Inc. et al, Plaintiffs, represented by Jeffrey Isaac Shinder, Constantine Cannon LLP, Richard J. Kilsheimer, Kaplan Fox & Kilsheimer LLP, Thomas M. Campbell, Smith Campbell, LLP & William Jay Blechman, Kenny Nachwalter, P.A., pro hac vice. Defendants in civil action Jetro Holding, Inc. et al v. Visa U.S.A., Inc. et al, Defendant, represented by Mark E. Tully -- mtully@goodwinlaw.com -- Goodwin Procter, LLP, Peter Edward Greene, Skadden, Arps, Slate, Meagher & Flom LLP, William Harry Rooney -- wrooney@willkie.com -- Willkie Farr & Gallagher LLP, Andrew J. McDonald, Pullman & Comley, LLC, Brian A. Herman -- brian.herman@morganlewis.com -- Morgan, Lewis & Bockuis, LLP, David Sapir Lesser, Wilmer Cutler Pickering Hale & Dorr, LLP, Douglas Melamed, Eric H. Grush, Sidley Austin LLP, Erica Fenby -- erica.ghali@alston.com -- Alston & Bird LLP, pro hac vice, Gary R. Carney, Jr. -- gcarney@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garison, LLP, James T. Shearin -- jtshearin@pullcom.com -- Pullman & Comley, LLC, James M. Sulentic -- James.Sulentic@KutakRock.com -- Kutak Rock LLP, John P. Passarelli -- John.Passarelli@KutakRock.com -- Kutak Rock LLP. MDL 2492: Rangel Suit v. NCAA Over Health Issues Consolidated ------------------------------------------------------------- The case styled JONATHAN RANGEL, individually and on behalf of all similarly situated individuals, Plaintiff v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, and LONE STAR CONFERENCE, Defendants, Case No. 1:19-cv-02813 (Filed July 9, 2019), was transferred from the U.S. District Court for the Southern District of Indiana to the U.S. District Court for the Northern District of Illinois (Chicago) on Nov. 8, 2019. The Northern District of Illinois Court Clerk assigned Case No. 1:19-cv-07342 to the proceeding. The Plaintiff brings this class action complaint against the Defendants to obtain redress for injuries sustained as result of their reckless disregard for the health and safety of generations of student-athletes. The Rangel case is being consolidated with MDL No. 2492, In Re: NATIONAL COLLEGIATE ATHLETIC ASSOCIATION STUDENT-ATHLETE CONCUSSION INJURY LITIGATION. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on Dec. 18, 2013. These actions seek medical monitoring for putative classes of former student athletes at NCAA-member schools, who allege they suffered concussions. The Plaintiffs allege that the NCAA concealed information about the risks of the long-term effects of concussion injuries. Opponents to centralization argue, inter alia, that (1) the putative classes and claims alleged in these actions do not sufficiently overlap; and (2) given the small number of actions pending, alternatives to centralization are preferable. Opponents' arguments, while persuasive when the Section 1407 motion was first filed, are less compelling now given the current state of the litigation, the Panel said. Since the motion for centralization was filed, an additional eight related actions have been filed, most alleging overlapping putative classes of former football players at NCAA-member schools. The Northern District of Illinois Arrington action involves student-athletes, who participated in additional sports, and the putative class alleged in that action is more limited in scope. Most of the actions now pending, however, involve nearly completely overlapping putative classes and claims. Moreover, the Panel is persuaded that the overlap between Arrington and the remaining actions is sufficient to warrant centralization. Regardless of the scope of the putative classes alleged, all actions share common factual questions concerning the NCAA's knowledge of the risks of concussions in football players and its policies governing the protection of players from such injuries. The Plaintiffs in all actions seek medical monitoring for putative class members. In its Dec. 18, 2013 Order, the MDL Panel found that the these actions involve common questions of fact, and that centralization in the Northern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. These actions share factual questions relating to allegations against the NCAA stemming from injuries sustained while playing sports at NCAA-member institutions, including damages resulting from the permanent long-term effects of concussions. Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel, and the judiciary. Presiding Judge in the MDL is Hon. Judge John Z. Lee Paul. The lead case is 1:16-cv-08727. NCAA is a non-profit organization, which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Vincent P. Circelli, Esq. CIRCELLI WALTER & YOUNG PLLC 500 East 4th St., Suite 250 Fort Worth, TX 76102 Telephone: (682) 703-2019 E-mail: vinny@cwylaw.com NCAA is represented by: Mark Steven Mester, Esq. LATHAM & WATKINS LLP 330 N. Wabash Avenue, Suite 2800 Chicago, IL 60611 Telephone: (312) 876-7700 E-mail: mark.mester@lw.com MDL 2804: National Opioid Settlement Moving in Federal Dist. Court ------------------------------------------------------------------ Stateline.org reports that as talks continue on a national opioid settlement, a class-action lawsuit is still moving in federal district court. "The (Multi District Litigation) still exists and they're gearing up for another bellweather case," said Andy Davis, a lead attorney on the suit filed by Rome, Floyd County and several other Northwest Georgia governments. Bellweather cases are the ones U.S. District Judge Dan Polster is using to decide questions of law that will apply to the more than 2,000 suits against opioid manufacturers and distributors gathered under the MDL umbrella. The two Ohio counties slated to be heard first reached a $260 million settlement last week. A group of state attorneys general brokered a deal to expand the settlement to all pending cases, but Davis said it hasn't been accepted by the MDL negotiation class. "Right now there's a hang-up," Davis said. "There are some AGs that don't want to let the cities and counties control the money. There's still that stress that has to be resolved at some point." The Rome City and Floyd County commissions declared the opioid crisis a public nuisance that has harmed the community's residents and led to ongoing costs to taxpayers. They're seeking damages and funding for local services to address the epidemic. However, a large share of the proposed national settlement would be a supply of the addiction medication known as Suboxone: an estimated $26 billion worth over 10 years, out of a $48 billion overall settlement. Addiction experts say states could make a greater impact by spending the money on other measures. "The primary barrier to getting more people into treatment is not the cost of the drug," said Andrew Kolodny, senior scientist at the Institute for Behavioral Health at Brandeis University and co-director of the Opioid Policy Research Collaborative. Kolodny said the real barrier to people with opioid addictions getting help is the lack of willing prescribers and the shortage of treatment programs. Focusing on just one medication as a one-size-fits-all solution across the country misses the mark, said Yngvild Olsen, an addiction specialist in Baltimore who serves on the board of the American Society of Addiction Medicine. "Different states may have different needs and obtaining the medication may not be top-most among them," she said. "Without a robust, trained workforce and funding for comprehensive services, a simplistic settlement may not get us very far." More than 48,000 people in the United States died from overdoses of prescription painkillers, heroin and fentanyl in 2017, according to the U.S. Centers for Disease Control and Prevention. Research shows that people who receive addiction medications, including buprenorphine -- the primary ingredient in Suboxone -- methadone and naltrexone, which is sold as Vivitrol, are at least twice as likely to stay in treatment and recovery as those receiving addiction treatment without medication. The drugs, which block the effects of other opioids, also protect patients from accidental overdose. But only about 10% of the more than 2 million Americans -- about 200,000 people -- with an opioid addiction are receiving treatment, and most treatment does not include these medications, according to data from the U.S. Substance Abuse and Mental Health Services Administration. Also, in much of the country, few doctors are qualified to write prescriptions for the controlled substance, and even fewer accept Medicaid payments. Cash payment is very common, said Brendan Saloner, a researcher at Johns Hopkins University who studies the availability of opioid treatment. Kenneth Stoller, who runs a treatment center in Baltimore, said medications represent only a small portion of the total cost of treatment and recovery services. And when all the other costs of abating the opioid crisis are accounted for, including child protective services, law enforcement, drug courts, employment training, housing and other medical expenses, the relative share of the costs represented by the medication recedes even more, he said. In addition to the cash and medication, the companies in the settlement would agree to participate in a data-tracking program to ensure that opioid painkillers are not over-supplied and to change their marketing and distribution policies. [GN] MDL 2909: Sabeehullah Class Suit Over Fairlife Milk Consolidated ---------------------------------------------------------------- The class action lawsuit styled as MOHAMMAD SABEEHULLAH and NABIL KHAN, individually and on behalf of all others similarly situated, Plaintiffs v. FAIRLIFE, LLC, MIKE McCLOSKEY, and SUE McCLOSKEY, Defendants, Case No. 2:19-cv-00222 (Filed June 17, 2019), was transferred from the U.S. District Court for the Northern District of Indiana to the U.S. District Court for the Northern District of Illinois (Chicago) on Nov. 12, 2019. The Northern District of Illinois Court Clerk assigned Case No. 1:19-cv-07171 to the proceeding. The case is assigned to the Hon. Judge Robert M. Dow, Jr. The lead case is Case No. 1:19-cv-07141. The Sabeehullah case is being consolidated with MDL 2909, In re: FAIRLIFE MILK PRODUCTS MARKETING AND SALES PRACTICES LITIGATION. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on Oct. 2, 2019. These actions share factual questions arising from allegations of animal cruelty at a farm in northern Indiana that provides milk used in fairlife's milk products. The Plaintiffs in each action allege that they purchased fairlife milk products based on the Defendants' marketing and labeling, which emphasized Fairlife's humane treatment of its dairy cows. The Plaintiffs in each action assert similar claims for fraud, unjust enrichment, and violation of state consumer protection laws, and they seek to represent overlapping national and state classes of purchasers of Fairlife milk. In its Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.[BN] The Plaintiffs are represented by: Syed Ali Saeed, Esq. SAEED & LITTLE, LLP 18 W Vermont Street Indianapolis, IN 46204 Telephone: (317) 721-9214 E-mail: ali@sllawfirm.com The Defendants are represented by: Allison A. Ray, Esq. KIRKLAND & ELLIS 300 N Lasalle Chicago, IL 60654 Telephone: (312) 862-2518 E-mail: allison.ray@kirkland.com - and - Mark Steven Mester, Esq. LATHAM & WATKINS LLP 330 N. Wabash Avenue, Suite 2800 Chicago, IL 60611 Telephone: (312) 876-7700 E-mail: mark.mester@lw.com MDL 2909: Salzhauer Class Suit Over Fairlife Milk Consolidated -------------------------------------------------------------- The class action lawsuit styled as Eliana Salzhauer, individually and on behalf of all others similarly situated, Plaintiff v. The Coca-Cola Company, Fairlife, LLC, Mike McCloskey, Sue McCloskey, and Select Milk Producers, Inc., Defendants, Case No. 1:19-cv-02709 (Filed June 13, 2019), was transferred from the U.S. District Court for the Northern District of Georgia to the U.S. District Court for the Northern District of Illinois (Chicago) on Nov. 12, 2019. The Northern District of Illinois Court Clerk assigned Case No. 1:19-cv-07170 to the proceeding. The case is assigned to the Hon. Judge Robert M. Dow, Jr. The lead case is Case No. 1:19-cv-07141. The Salzhauer case is being consolidated with MDL 2909, In re: FAIRLIFE MILK PRODUCTS MARKETING AND SALES PRACTICES LITIGATION. The MDL was created by Order of the United States Judicial Panel on Multidistrict Litigation on Oct. 2, 2019. These actions share factual questions arising from allegations of animal cruelty at a farm in northern Indiana that provides milk used in fairlife's milk products. The Plaintiffs in each action allege that they purchased fairlife milk products based on the Defendants' marketing and labeling, which emphasized Fairlife's humane treatment of its dairy cows. The Plaintiffs in each action assert similar claims for fraud, unjust enrichment, and violation of state consumer protection laws, and they seek to represent overlapping national and state classes of purchasers of Fairlife milk. In its Order, the MDL Panel found that the actions in this MDL involve common questions of fact, and that centralization in the Northern District of Illinois will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.[BN] The Plaintiffs are represented by: Adam J. Levitt, Esq. Amy Elisabeth Keller, Esq. DICELLO LEVITT GUTZLER LLC Ten North Dearborn Street, 11th Floor Chicago, IL 60602 Telephone: (312) 214-7900 E-mail: alevitt@dicellolevitt.com akeller@dicellolevitt.com - and - Daniel Warshaw, Esq. PEARSON, SIMON & WARSHAW LLP 15165 Ventura Blvd., Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 E-mail: dwarshaw@pswlaw.com - and - Kenneth Steven Canfield, Esq. DOFFERMYRE SHIELDS CANFIELD & KNOWLES, LLC 1355 Peachtree Street, N.E., Suite 1725 Atlanta, GA 30309 Telephone: (404) 881-8900 E-mail: kcanfield@dsckd.com - and - Sue J. Nam, Esq. REESE LLP -NY 100 West 93rd Street New York, NY 10025 Telephone: (212) 643-0500 The Defendants are represented by: Jeffrey S. Cashdan, Esq. KING & SPALDING 1180 Peachtree Street, N.E. Atlanta, GA 30309 Telephone: (404) 572-4600 E-mail: jcashdan@kslaw.com - and - Ronald Thomas Coleman, Jr. PARKER, HUDSON, RAINER & DOBBS, LLP 303 Peachtree Street NE, Suite 3600 Atlanta, GA 30308 Telephone: (404) 523-5300 E-mail: rcoleman@phrd.com MILLER MAYER: Must Face Class Action Over Investment Scam --------------------------------------------------------- Laura D. Francis, writing for Bloomberg Law, reports that one of two law firms involved with an investment scam must continue to defend a lawsuit brought by a class of 54 immigrant investors who say they were cheated out of their money and a chance at U.S. citizenship, the California Court of Appeal ruled. Ithaca, N.Y.-based Miller Mayer and Wolfsdorf Rosenthal, which has a main office in Santa Monica, Calif., tried to get the case thrown out under a California law that bars lawsuits based on their exercise of free speech. Both firms prevailed in trial court with the argument that the state's Anti-Strategic Lawsuit Against Public Participation, or Anti-SLAPP law shielded them from litigation over their submission of immigration petitions to the government. But while the investors' allegations against Wolfsdorf directly involved protected activity -- the firm's filing of their immigration paperwork -- that wasn't the case with the allegations against Miller, the Second Appellate District said Oct. 29 in an unpublished decision. Rather, the investors say Miller prepared the misleading private offering memorandum on which they relied in deciding whether to invest, the court said. The firm's protected activity -- petitioning the government for an EB-5 regional center designation -- was "merely incidental," it said. "We're pleased with the decision of the Court of Appeals as another step in confirming that plaintiffs' claims are meritless and lacking in any evidence as to the allegations against Wolfsdorf Rosenthal, LLP," the firm's attorney, Valerie A. Moore of Haight Brown & Bonesteel in Los Angeles, said Oct. 30. The decision also is a boon to immigration attorneys because it protects their constitutional right to petition the government on behalf of their clients and "affirms that immigration attorneys are not guarantors of an EB-5 investment or the success of an underlying EB-5 project," she said in a statement. But Manhattan Beach, Calif., attorney Steven P. Scandura called the decision disappointing because it "said law firms can rip off their own clients." "The whole EB-5 program was basically destroyed by fraud," said Scandura, who represents the investors. "I'm sure there are legitimate ones out there. There must be. I've yet to find one," he said. A representative for Miller Mayer didn't respond to a request for comment. EB-5 Fraud The case is one of several dealing with the fallout of various EB-5 immigrant investor program scams, many of which came to light after a push by the Securities and Exchange Commission to investigate and prosecute EB-5 fraud. The visa program provides green cards to immigrants who invest at least $500,000 in a commercial enterprise that creates at least 10 U.S. jobs. Homeland Security Department regulations set to go into effect Nov. 21 will raise that minimum investment to $900,000 and channel more money into projects in rural areas. But the regulations don't contain provisions to immunize the program from the fraud that has cost investors millions of dollars, something Sens. Charles Grassley (R-Iowa) and Patrick Leahy (D-Vt.) are trying to fix via legislation. The lawsuit brought by a class of 54 investors involved the Pacific Proton EB-5 Fund, which was supposed to build and operate Beverly Proton, a cancer treatment center in southern California. But founder Charles Liu and his partner, radiation oncologist Dr. John Thropay, misappropriated some $21.1 million of the total $26.9 million invested and never built the center. As a result of the SEC's civil enforcement action, Liu and his wife were ordered to pay back all the investors' money and to fork over $8.2 million in civil penalties, and were permanently barred from the EB-5 program. The U.S. Court of Appeals for the Ninth Circuit later affirmed. The investors, each of whom lost more than $500,000, sued Miller and Wolfsdorf for their alleged roles. Both firms knew or should have known that Beverly Proton was a scam, the investors said. Although finding that the case could go forward against Miller, the court said it wasn't ruling on whether the firm actually is liable to the investors. Kaufman Dolowich Voluck represented Miller Mayer. The case is Shi v. Wolfsdorf Rosenthal, LLP, 2019 BL 414783, Cal. Ct. App., 2d Dist., No. B290792, unpublished 10/29/19. [GN] MONAT GLOBAL: Judge Refuses to Dismiss Hair Product Class Action ---------------------------------------------------------------- HarrisMartin reports that a Florida federal judge has refused to dismiss a consolidated class action complaint accusing the makers of Monat hair care products of misrepresenting their safety and efficacy, ruling that the plaintiffs sufficiently alleged design and manufacturing defects, and causation. In an Oct. 23 order, Judge Darrin Gayles of the U.S. District Court for the Southern District of Florida, noted the complaint lists ingredients in the products that are known to cause allergic reactions and dermatitis, and points to unsanitary conditions at defendants' facilities. Monat Global Corp., Alcora Corp. and B&R Products comprise a family-controlled beauty conglomerate. [GN] MONSANTO CANADA: Faces B.C. Roundup Suit Amid U.S. Class Actions ---------------------------------------------------------------- Vancouver Courier reports that a lawsuit filed in British Columbia against Monsanto Canada ULC is just one of a growing number of lawsuits targeting the U.S.-based agrochemical corporation for its herbicide Roundup. Alongside Monsanto, the notice of civil claim in B.C. Supreme Court names the multinational pharmaceutical company Bayer as a defendant as well as retailers where Roundup is sold, including Canadian Tire and Home Hardware among others. This suit is in addition to multiple class action lawsuits being filed against Monsanto in the United States. In his suit, Clifford Frank Sissons claims that he used Roundup heavily at various rental properties from 1987 to 2018. In June of the last year, Sissons was diagnosed with non-Hodgkin's lymphoma, which the suit alleges was caused, or materially contributed to, by his use of Roundup. The lawsuit points to the chemical compound glyphosate contained in Roundup as the cause of the cancer and says that glyphosate-based herbicides are the most commonly and intensely used herbicides in the word. "The defendants knew of or should have known that glyphosate-based herbicides such as Roundup, and specifically Roundup, had been associated with the cause of several types of cancers," read the court filings. The lawsuit alleges that the defendants misled Sissons and other customers by not providing any health warnings in their sales brochures or advertisements, and not issuing a warning when selling the product. According to the claim, the retailers knew that Sissons would be mixing and using the herbicide himself, and they had an obligation to ensure such a practice would be safe to perform. Sissons claims that, in addition to suffering from cancer, he has other personal ailments including headaches, chronic muscular pain and physiological injuries. Sissons is seeking general and special damages, as well as damages for lost earning capacity. He is also suing for costs and future medical care. For his case, Sissons is relying on the legal arguments of negligence, breach of duty of care and breach of the Consumer Protection Act. The claims have not been tested in court, and the respondents had not responded to the petition by press time. [GN] MYER: Class Action Decision No Game-Changer ------------------------------------------- Justin McDonnell, writing Australian Financial Review, reports that the Myer class action decision will be a confidence boost for plaintiff lawyers and funders, but it's no game-changer. The decision in the Myer class action has attracted much attention. However, perhaps its importance has been overstated. Let me explain why. The Myer judgment establishes that a plaintiff only has to demonstrate what a company's market price would have been if the unlawful conduct had not occurred, rather than show individual reliance on a misleading document or statement. The market-based causation issue has been part of securities class action litigation for more than a decade. Yet there has been limited judicial guidance because most cases have been settled. However, in the space of a week, we had two conflicting decisions. The theory was supported in Myer (October 24) but not in Babcock & Brown, another case run in the Federal Court -- and decided on October 18. Babcock & Brown was not a class action. About 1200 claims by separate plaintiffs across three proceedings were heard together. However, the case was very similar to Myer. Net profit figures were announced to the market from April 2008 but these were shown up by its eventual demise in January 2009. The court found the relevant information was either covered by ASX listing rules or not material. The market-based causation theory was not accepted because Justice Lindsay Foster said there was "a serious problem" with the theory in that it "allows compensation to people who actually suffered no loss". The Myer decision will not lead to more class actions. Plaintiff lawyers and funders look for a sudden drop in a listed company's share price as the catalyst for a claim. Causal loss theories do not drive that decision. Practically, the Myer case will mean that plaintiff lawyers will be tougher in pushing the market causation theory in settlement negotiations. However, Myer and Babcock & Brown have demonstrated that these cases are very much subject to their own facts. Concern for boards The length of the Myer decision (386 pages) has meant there are many twists and turns in proving the market causation theory: what else could have caused the share price to drop, how strong is the institutional share base, is there a well-defined event as opposed to the impact being spread out over a couple of days, what is the period in which it is alleged the market was misled, what index should be used, what share price inflation model to consider, and so on. So, while there will be a confidence boost for plaintiff lawyers and funders, defendants will find solace in the Myer roadmap that has many different pathways. Will boards be more concerned? Definitely. However, boards for some time have been wary of internal forecasting and other management views that may not support a position expressed externally. Boards nowadays are very attuned to continuous disclosure requirements. And the Myer case shows that market analysts are sufficiently savvy and sophisticated to query the exuberant tone of chief executive officers. Judge's ruling in Myer case provides a clear path for class actions While the judgment is an important decision and required reading in the class action space, it is unlikely to be the game-changer that some predict. Remember that in Myer and Babcock & Brown, the plaintiffs lost. [GN] NCAA: Manning Sues Over Student-Athletes' Health & Safety --------------------------------------------------------- NATHANIEL MANNING, individually and on behalf of all others similarly situated, Plaintiff v. THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant, Case No. 1:19-cv-04461-JPH-MJD (S.D. Ind., Nov. 6, 2019), seeks redress for injuries sustained as a result of the Defendants' reckless disregard for the health and safety of generations of Kent State University student-athletes. According to the complaint, nearly 100,000 student-athletes sign up to compete in college football each year, and it's no surprise why. Football is America's sport and Plaintiff and a Class of football players were raised to live and breathe the game. During football season, there are entire days of the week that millions of Americans dedicate to watching the game. On game days, hundreds of thousands of fans fill stadium seats and even more watch around the world. Before each game, these players--often mere teenagers--are riled up and told to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep going. But up until 2010, NCAA kept players and the public in the dark about an epidemic that was slowly killing college athletes. During the course of a college football season, athletes absorb more than 1,000 impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you drove your car into a wall at 25 miles per hour and weren't wearing a seatbelt, the force of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and 21-year-old student-athletes are subjected to repeated car accidents. Over time, the repetitive and violent impacts to players' heads led to repeated concussions that severely increased their risks of long-term brain injuries, including memory loss, dementia, depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's disease, and other related symptoms. Meaning, long after they played their last game, they are left with a series of neurological events that could slowly strangle their brains. For decades, NCAA knew about the debilitating long-term dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as "traumatic brain injuries" or "TBIs") that resulted from playing college football, but recklessly disregarded this information to protect the very profitable business of "amateur" college football. Football players were under the Defendant's care. Unfortunately, the Defendant did not care about the off-field consequences that would haunt students for the rest of their lives. Despite knowing for decades of a vast body of scientific research describing the danger of traumatic brain injuries ("TBIs") like those the Plaintiff experienced, the Defendant failed to implement adequate procedures to protect the Plaintiff and other football players from the long-term dangers associated with them. They did so knowingly and for profit, the Plaintiff avers. As a direct result of the Defendant's acts and omissions, the Plaintiff and countless football players suffered brain and other neurocognitive injuries from playing NCAA football, the lawsuit says. As such, the Plaintiff brings this Class Action Complaint in order to vindicate those players' rights and hold the NCAA accountable. NCAA is a non-profit organization which regulates athletes of 1,268 North American institutions and conferences.[BN] The Plaintiff is represented by: Jeff Raizner, Esq. RAIZNER SLANIA LLP 2402 Dunlavy Street Houston, TX 77006 Telephone: 713.554.9099 Facsimile: 713.554.9098 E-mail: jraizner@raiznerlaw.com - and - Jay Edelson, Esq. Benjamin H. Richman, Esq. Rafey S. Balabanian, Esq EDELSON PC 350 North LaSalle Street, 14th Floor Chicago, IL 60654 Telephone: 312 589 6370 Facsimile: 312 589 6378 E-mail: jedelson@edelson.com brichman@edelson.com rbalabanian@edelson.com NEBRASKA FURNITURE: Faces Guglielmo Suit Over ADA Breach -------------------------------------------------------- A class action lawsuit has been filed against Nebraska Furniture Mart, Inc. The case is styled as Joseph Guglielmo, on behalf of himself and all others similarly situated, Plaintiff v. Nebraska Furniture Mart, Inc., Defendant, Case No. 1:19-cv-11197 (S.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Nebraska Furniture Mart is the largest home furnishing store in North America selling furniture, flooring, appliances and electronics.[BN] The Plaintiff is represented by: Russel Craig Weinrib, Esq. Stein Saks PLLC 285 Passaic St., Suite 5 Hakensack, NJ 07601 Phone: (201) 282-6500 Email: rweinrib@steinsakslegal.com NEW YORK, NY: Astacio Files Civil Rights Suit in E.D. New York -------------------------------------------------------------- A class action lawsuit has been filed against The City of New York, et al. The case is styled as Dolores Astacio, Kinetta Berry, Adrian Salas, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. The City of New York, New York City Department of Housing Preservation and Development, and Louise Carroll, Defendants, Case No. 1:19-cv-06862 (E.D.N.Y., Dec. 5, 2019). The nature of suit is stated as Accommodations Civil Rights. New York City comprises 5 boroughs sitting where the Hudson River meets the Atlantic Ocean. At its core is Manhattan, a densely populated borough that's among the world's major commercial, financial and cultural centers.[BN] The Plaintiffs are represented by: Jason P. Sultzer, Esq. The Sultzer Law Group 85 Civic Center Plaza, Suite 200 Poughkeepsie, NY 12601 Phone: (845) 483-7100 Email: sultzerj@thesultzerlawgroup.com OFFICE DEPOT: Nasco Sues Over Unsolicited Texts That Violate TCPA ----------------------------------------------------------------- Arthur Nasco on behalf of himself and those similarly situated v. OFFICE DEPOT, INC., Case No. 3:19-cv-02317-L-KSC (S.D. Cal., Dec. 5, 2019), is brought for damages resulting from the unlawful actions of the Defendant in negligently, knowingly, and/or willfully placed unsolicited automated text messages to the Plaintiff's cellular phone in violation of the Telephone Consumer Protection. According to the complaint, the Defendant placed these unlawful texts after the Plaintiff revoked consent by following the Defendant's own opt-out mechanism and replying "Stop" to the texts. The Defendant has violated the TCPA by using an automatic telephone dialing system to bombard consumers' mobile phones with non-emergency advertising and marketing text messages without prior express written consent, says the complaint. The Plaintiff is a natural person, who resided in the County of San Diego, California. Office Depot is an American office supply retailing company.[BN] The Plaintiff is represented by: Yana A. Hart, Esq. Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Phone: (619) 233-7770 Fax: (619) 297-1022 Email: yana@kazlg.com ak@kazlg.com OLDCASTLE APG: Jackson Files FDCPA Suit in N.D. Georgia ------------------------------------------------------- A class action lawsuit has been filed against Oldcastle APG, Inc. The case is styled as Joseph Devon Jackson, on behalf of himself and All Others Similarly Situated, Plaintiff v. Oldcastle APG, Inc. also known as: Oldcastle Services, Inc., Defendant, Case No. 1:19-cv-05490-ELR-WEJ (N.D. Ga., Dec. 5, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Oldcastle Services, Inc. supplies building products. The Company offers concrete masonry, hardscapes, lawn, and garden products. Oldcastle Services serves customers in the North America.[BN] The Plaintiff is represented by: Gregory Joseph Gorski, Esq. Francis & Mailman, P.C. 1600 Market St., Suite 2510 Philadelphia, PA 19103 Phone: (215) 735-8600 Email: ggorski@consumerlawfirm.com - and - James Marvin Feagle, Esq. Skaar and Feagle 2374 Main Street, Suite B Tucker, GA 30084 Phone: (404) 373-1970 Fax: (404) 601-1855 Email: jfeagle@skaarandfeagle.com - and - Justin Tharpe Holcombe, Esq. Kris Kelly Skaar, Esq. Skaar & Feagle, LLP -Woodstock 133 Mirramont Lake Drive Woodstock, GA 30189 Phone: (770) 427-5600 Fax: (404) 601-1855 Email: jholcombe@skaarandfeagle.com krisskaar@aol.com - and - Matthew Anderson Dooley, Esq. O'Toole McLaughlin Dooley & Pecora Co. LPA 5455 Detroit Road Sheffield Village, OH 44054 Phone: (440) 930-4001 Email: mdooley@omdplaw.com OM JOLIET: Faces Johnson Suit Over Unlawful Use of Biometric Data ----------------------------------------------------------------- Michele Johnson individually, and on behalf of all others similarly situated v. OM JOLIET WINGS, INC. and KALPESH PATEL, Case No. 2019CH14014 (Ill. Cir., Cook Cty., Dec. 5, 2019), is brought against the Defendants to redress and curtail their unlawful collection, use, storage, and disclosure of the Plaintiff's sensitive and proprietary biometric data. The Defendants' and their affiliated facilities' employees are required to have their fingerprints scanned by a biometric timekeeping device. Unlike ID badges or time cards--which can be changed or replaced if stolen or compromised--fingerprints are unique, permanent biometric identifiers associated with each employee. This exposes the Defendants' employees to serious and irreversible privacy risks. Recognizing the need to protect its citizens from such situation, Illinois enacted the Biometric Information Privacy Act, specifically to regulate companies that collect and store Illinois citizens' biometrics, such as fingerprints. Notwithstanding the clear and unequivocal requirements of the law, the Defendants disregards employees' statutorily protected privacy rights and unlawfully collects, stores, disseminates, and uses its employees' biometric data in violation of BIPA, the Plaintiff contends. Specifically, the Defendants have violated and continues to violate BIPA because it did not and continues not to: properly inform the Plaintiff in writing of the specific purpose and length of time for which their fingerprints were being collected, stored, and used, as required by BIPA; receive a written release from the Plaintiff to collect, store, or otherwise use their fingerprints, as required by BIPA; provide a publicly available retention schedule and guidelines for permanently destroying Plaintiff's fingerprints, as required by BIPA; and obtain consent from Plaintiff to disclose, redisclose, or otherwise disseminate their fingerprints to a third party as required by BIPA, says the complaint. Plaintiff Michele Johnson is a natural person and a citizen of the State of Illinois. OM Joliet Wings, Inc. is a franchisee of Wingstop. The Defendant owns and operates a Wingstop located in Joliet, Illinois.[BN] The Plaintiff is represented by: Ryan F. Stephan, Esq. Megan E. Shannon, Esq. STEPHAN ZOURAS, LLP 100 N. Riverside Plaza, Suite 2150 Chicago, IL 60606 Phone: (312) 233-1550 Fax: (312) 233-1560 Email: rstephan@stephanzouras.com mshannon@stephanzouras.com ONCOSEC MEDICAL: Alpha Holdings Files Class Action in Nevada ------------------------------------------------------------ Alpha Holdings, Inc., the largest stockholder of OncoSec Medical Incorporated (NASDAQ: ONCS), with an approximate 15.15% ownership stake, on Oct. 30 disclosed that it has filed two lawsuits in the District Court of Clark County, Nevada, against OncoSec and its Board of Directors. The first is a class action lawsuit filed by Alpha Holdings on behalf of all OncoSec stockholders, alleging that the OncoSec board members have breached their fiduciary duties by agreeing to a takeover proposal (the "Takeover Proposal") with a wholly-owned subsidiary of China Grand Pharmaceuticals and Healthcare Holdings ("CGP") and Sirtex Medical US Holdings, Inc. ("Sirtex"), an affiliate of CGP, and breached their duty of candor by failing to fully and fairly disclose all material information regarding the Takeover Proposal. The lawsuit seeks to enjoin the as-yet unscheduled meeting at which stockholders will vote on the Takeover Proposal, void the license agreement with China Grand that was agreed as part of the Takeover Proposal and order OncoSec to run a true and thorough sale process to maximize value for all stockholders. The second lawsuit asks the Court to enforce Alpha Holdings' demand to inspect OncoSec's books and records, which OncoSec has refused to honor even though it is legally required to do so. Commenting on the lawsuits, Alpha Holdings stated: "The OncoSec board has agreed to a change of control transaction that we believe undervalues the Company and its future prospects, as evidenced by OncoSec's own statements and the analysis of its financial advisor. The OncoSec Board has limited the Company's ability to realize future upside and even agreed to a "no-talk" provision preventing OncoSec from engaging with alternative bidders prior to the closing of the transaction with CGP. We firmly believe that the China Grand takeover should be prevented and OncoSec should consider other financing arrangements that will preserve value for OncoSec's current stockholders." As detailed in the Class Action Complaint, Alpha Holdings opposes the proposed transaction because it: -- Gives CGP and its affiliate, Sirtex, 53% share ownership of OncoSec at a significantly depressed stock price; -- Allows CGP and Sirtex to appoint 3 of 9 directors plus up to 2 additional directors if any OncoSec's current directors cease to serve, potentially giving CGP and Sirtex a majority of board seats; -- Limits OncoSec's ability to consider acquisition proposals for OncoSec from third parties, thereby lowering the potential upside for current stockholders; -- Creates preemption rights on future equity sales by OncoSec that may further dilute OncoSec's current stockholders and hinder the ability to attract new capital in the future; -- Fails to require that CGP actually develop or sell the products it seeks to license, thereby reducing their potential value to current OncoSec stockholders; -- Establishes a 70% board approval requirement for certain business decisions that would significantly restrict the board's ability to run OncoSec's business for the benefit of all stockholders; and -- Is supported by a so-called "fairness" opinion from a bank that will receive the majority of its fee, $1.2 million, only if the deal goes through. The Books and Records Complaint alleges, among other things, that OncoSec has refused to provide Alpha Holdings with books and records that it is entitled to inspect, including a copy of the Company's stock ledger and a list of OncoSec stockholders. In the complaint, Alpha Holdings states its belief that OncoSec refused its request in order to obtain an unfair advantage in the upcoming proxy contest over the China Grand Takeover Proposal by hiding from Alpha Holdings the identities of its fellow stockholders and other valuable information. Alpha Holdings is seeking an order mandating that OncoSec immediately provide the books and records that Alpha Holdings has requested and an order enjoining the Special Meeting until Alpha Holdings has had an opportunity to inspect the records and communicate with its fellow stockholders about the China Grand Takeover Proposal. Alpha Holdings also announced that it has filed a preliminary proxy statement with the U.S. Securities and Exchange Commission, which details its reasons for opposing the transaction. Stockholders need take no action at this time. About Alpha Holdings, Inc. Alpha Holdings, Inc. is a top-ranked Korean company engaged in the design-development service and manufacturing of system semiconductors, biotechnologies and thermal compound materials. The company, formerly known as Alpha Chips Corp., is headquartered in Seongnam, South Korea and was founded in 2002. Alpha is listed on the KOSDAQ Market. [GN] OREGON: Awaits Decision on Breach of Contract Lawsuit ----------------------------------------------------- Ted Sickinger, writing for The Oregonian, reports that twelve people in Linn County are about to decide, for all Oregonians, how we value state forests. It's not about selling them, but how the state balances the need for logging revenues against other social and environmental benefits the forests produce. In a trial that started on Oct. 25, jurors are considering whether the state breached a contract it made with 15 rural counties in 1941, and if so, how much it owes them. Eighty years ago, counties began deeding 600,000 acres of burned, logged and unproductive forests to the state. In return, the state agreed to rehabilitate them, protect them from wildfire and share logging revenues. Today, the 15 "trust land counties" receive two-thirds of all state timber sale revenues -- money they depend on to fund public services. But 14 of those counties now claim the state has shortchanged them for two decades, since the Oregon Department of Forestry adopted new forest management rules. Counties claim they're owed $1 billion because Oregon failed to maximize logging on the land. Depending on who you listen to, the lawsuit is either a landgrab financed by the timber industry, or an effort by rural counties to get what they were promised before radical environmentalists took over the state. For the troubled forestry department, it's a major management distraction and a financial drain that's already cost $2 million. Legally, the lawsuit turns on one question: What did legislators mean eight decades ago when they enshrined in statute that the forest lands should be managed "to secure the greatest permanent value of such lands to the state of Oregon." Practically, it's about whether 729,000 acres of state forests should be operated more like tree farms or managed to provide a broader set of benefits, including habitat for fish and wildlife, clean air and water, scenery and recreation. If Oregon loses -- and the litigation and appeals could go on for years -- it could be hugely consequential, both in terms of the physical impact on forests that belong to all Oregonians, as well as the wealth transfer to a few counties by taxpayers around the state. A settlement is possible. But last-ditch mediation this summer produced no agreement, and the state has shown no signs of caving to date. Both the governor's office and the forestry department declined to comment on the suit. But the agency is developing a new forest management plan, one designed to deliver a broad set of environmental and social benefits. Officials say that plan isn't likely to increase logging levels. The 14 counties can live with that, as long as taxpayers elsewhere pay up. "We're not telling them they have to manage (the state forests) differently," said John DiLorenzo, the counties' lawyer, whose Portland firm stands to earn 15 percent of any monetary award. "But we're telling them that if they manage in a way that violates the contract, they owe us money." Mills rely on state timber It's well into the first shift at Hampton Lumber's mill in Tillamook and inside, the cacophony of bouncing logs, clattering boards and whining saws is deafening. Each log is laser-scanned as it enters the building. Within seconds, a computer considers all possible combinations of rectangles that can be cut from the circle, what boards would fetch the highest price, and how to position the log through the saw to maximize recovery of saleable lumber. Then the precision cutting begins. It's an odd mix of 21st-century high-technology and hard-hatted, ear-plugged manual labor. Well-paid labor. "If you walk in the door and you're sweeping the floor, you're making $18.54 an hour," said Mark Elston, the plant manager. That entry level wage translates to $39,000 a year. The scale tops out at about $60,000, with full medical and dental and a 401(k) match. Skilled trades like electricians and mechanics earn more. "With those kinds of wages," he said, "they contribute a lot to the local economy." Hampton sources most of the logs for the Tillamook Mill within a 100-mile radius. Up to 35% comes off the Astoria, Tillamook and Forest Grove state forest districts, which together comprise about 600,000 acres. That's less than 3% of all forest land in the state. But for mills in Northwest Oregon, they are a critical and steady source of supply. By state law, the logs can't be exported. And because the forestry department relies on timber sales for its budget, it puts a steady supply up for sale, regardless of market conditions. Today, Hampton's Tillamook mill operates at about 75% of capacity, with 165 employees on two shifts. The company insists those numbers could be bigger -- if Oregon harvested more. Dave Kunert, Hampton's log procurement manager, says that when the agency adopted its current management plan in 2001, leaders promised a sustainable annual harvest of 279 million board feet from the three districts. As it is, he said, they've only produced about 180 million board feet on average. That "shortfall" has been bitterly debated for 20 years. Agency leaders say the high harvest projections were due to modeling errors in 2001. Yet the timber companies insist their own analysis shows the forests could deliver another 100 million more board feet annually. "That's another sawmill," Kunert said. Crucial jobs, local revenues Hampton's mills are part of the skeletal remains of Oregon's once-thriving wood products sector, where employment has shriveled by almost two-thirds since the late 1970s, according to the state's Office of Economic Analysis. In Tillamook County, wood products accounted for more than one in four private sector jobs in the 1970s. Now it's less than one in 10. That continuous contraction has bred resentment all over rural Oregon, and increasingly polarized politics. Timber wars aren't new, but they're gathering momentum again. Take the walkout by Republican senators last summer over Oregon's proposed climate change legislation, and the rise of Timber Unity, a movement with an amorphous agenda, but whose members are channeling rural anger on Salem. It's about logging revenues. It's about jobs. It's about the dignity that come with good paychecks, and the despair and social problems that multiply without them. That's what Board of Forestry members regularly hear from the Forest Trust Lands Advisory Committee, a group of county commissioners who advise them on forestry issues. The 15 counties receive 64% of the logging revenues off state forests, and don't pay anything to manage the land. Last year, their cut was $87 million, with the lion's share going to Clatsop, Tillamook and Washington counties. Tillamook was projected to take home about $21 million. About $6 million went to its general fund, which was about a quarter of its operating revenue for the year. The rest was parceled out to taxing districts that included three school districts, the community college, the major fire districts, the education service district, the soil and water district and three ports. "The other side is the fully benefitted family wage jobs we have here in Tillamook County," said County Vice Chairman Dave Yamamoto, who also chairs the advisory committee. Yamamoto reels off the figures: The average private sector wage in his county is about $37,737 a year, well shy of the state's $50,843 average. But forestry and logging jobs pay $50,680. Mill jobs average $52,918. And trucking logs -- to the mill and to market -- averages almost $44,000. "People tell me all the time that Tillamook County just needs to be brought into the 21st century, that you're doing really well with tourism and you need to concentrate on that," he said. "The average tourism job pays $20,000 a year." Yamamoto says Oregon currently grows 400 million board feet of timber annually in state forests, yet the agency only puts about 230 million board feet up for sale each year. There's potential, he said, to almost double the cut. In short, the counties argue, the state is letting trees get too old. Instead of cutting them on a 45- to 50-year rotation, as private landowners do, they let them grow to 80 years and older. Once the trees develop old growth characteristics, they can attract endangered species like the Northern Spotted Owl and Marbled Murrelet, they're off limits. "That's what's happening on our state forest right now," Yamamoto said. Former Tillamook County Commissioner Tim Josi put it more starkly in testimony to the Legislature on a 2015 bill that would have required steep logging increases. "Old growth trees bring in murrelets," he said, "and when that happens, it is just like a cancer." A stalking horse? There's a narrative that the counties' lawsuit was a grassroots effort that grew out of decades of frustration. The frustration is real, but that's not how it happened. Court documents show the lawsuit was instigated -- and initially funded -- by the Oregon Forest & Industries Council trade group and the two companies that buy the most timber off the north coast forests, Hampton Tree Farms and Stimson Lumber. Emails from August of 2015 show the council's president, Kristina McNitt, arranging meetings with Linn County's three commissioners to discuss "harvest activity" and the agency's management plans. She specifically noted she wanted to meet individually to avoid the county's two-person quorum rules, which also triggers a public meeting obligation. By January of 2016, Linn County had entered a contract with Davis Wright Tremaine to pursue the lawsuit. McNitt's group had promised to pay up to $125,000 for the first phase of it. Why Linn County, which gets less than 5% of the harvest revenues? "Kristina grew up in rural Linn County," said Sara Duncan, the group's spokeswoman. "She witnessed, first-hand, mill jobs lost, school enrollment down, communities left behind." The lawsuit's critics say they were "venue shopping," choosing a locale where they'd have a sympathetic judge and jury. A meeting was arranged in early February 2016 for commissioners from other counties to hear more about the lawsuit. Some were anxious about being drawn into a legal case against the state. Craig Pope, a Polk County commissioner, expressed concerns in an email to other commissioners. "I feel like OFIC is in control now," he wrote. "I believe DiLorenzo and company will be chomping at the bit to dive into their strategy to convince the rest of the counties as quickly as they can… "I wish I could feel like (the council) had a voice in the outcomes of the near future, but I think we have been served up by the OFIC and will now have to live with the actions they have chosen." Whatever reservations they had, 14 of the 15 counties -- and another 150 underlying taxing districts -- ultimately joined. It was certified as a class action in October 2016. And now they can't back out. If they do, the counties would owe Davis Wright Tremaine's legal bills since 2016 -- and with five lawyers billing between $410 and $625 an hour, the bill could be in the millions. McNitt said the industry council only provided seed money and has no control. "We believe in and supported advancing this lawsuit because we care about the sustainable management of state forests for the benefit of Oregon schools, our workers and local communities," she said. The lawsuit's lynchpin is a phrase included in legislation more than 80 years ago, when counties began deeding the land to the state. The state's formal mandate, codified in 1941, was to manage the forests "to secure the greatest permanent value of such lands to the state." It's an ambiguous phrase, and in reaction to growing controversy around logging in the 1990s, lawmakers updated the rule in 1998. The new rule spelled out that the agency was to manage forests for sustainable harvests and to protect habitat for salmon and native wildlife, generate productive soil, clean air and clean water, prevent floods and erosion and promote recreation. But counties say that rule change breached their contract. "In the 1940s, timber was king," DiLorenzo said, "and the purpose of the act was to produce revenues for the counties and produce a constant source of timber for the wood products industry." Counties are seeking $1 billion -- $35 million annually since 2001 -- to compensate for lost revenues, plus an additional amount sufficient to yield $35 million annually going forward. That's on top of their cut of future harvest revenues. But the state argues the lands were acquired for multiple uses. According to its pretrial memo, it contends the laws governing the forest acquisitions changed over time, but explicitly mentioned other uses beyond timber production, including water supplies and recreation. The state maintains the lands it acquired were virtually worthless and required a substantial investment to restore. And, it says, there was never a legislative mandate to maximize revenues. The state argues its environmental protection efforts don't breach any contract, but simply comply with the federal clean water and endangered species acts. "It's just absurd," said Scott Lee, a former Clatsop County commissioner who was on the county advisory council when the lawsuit was being considered. "It's Oregonians suing Oregonians. This is not the Oregon way." If the counties win, Lee said, they'll lose anyway. "If we don't manage the forests in a balanced way, it will invite lawsuits that can tie up the state forests just like it did with the federal forests back in the eighties." Clatsop County, the biggest recipient of state timber sales, did not join the lawsuit. A current Clatsop Commissioner, Kathleen Sullivan, calls it a destructive action that "forces conflict rather than collaboration." Instead of working together, time, talent and money are being in a way that is damaging critical working relationships between state and local governments, she said. "Where will the state come up with $1 billion? Will ODF be forced to cash out the entirety of the state forest lands? Then what?" [GN] PANASONIC CORP: Seeks Decertification of Cartel Class Action ------------------------------------------------------------ Mike Leonard, writing for Bloomberg Law, reports that a group of overseas electronics makers say a San Francisco federal judge should decertify an auto capacitor price-fixing class action based on new data showing the plaintiffs badly underestimated the number of uninjured class members. The multidistrict lawsuit targets dozens of mostly Japanese, Korean, and Taiwanese companies, including industry giants like Panasonic Corp. and Samsung Electro-Mechanics Co. Ltd. It accuses them of violating antitrust laws through a global conspiracy to jack up the prices of auto capacitors, components that store and regulate electric currents in cars. [GN] PC SHIELD: Court Grants Renewed Motion for Class Certification -------------------------------------------------------------- In the class action lawsuit styled as WENDELL H. STONE COMPANY, INC., individually and on behalf of all others similarly situated doing business as STONE & COMPANY, the Plaintiff, vs. PC SHIELD INC. an Oklahoma corporation, and BRANDIE M. Jordan, an individual, the Defendants, Case No. 2:18-cv-01135-AJS (W.D. Pa.), the Hon. Judge Arthur J. Schwab entered an order on Dec. 4, 2019: 1. granting Plaintiff's renewed motion for class certification; 2. certifying a class of: "all persons who (1) on or after four years prior to the filing of this action, (2) were sent, by Defendants or on Defendants' behalf an unsolicited telephone facsimile message, (3) from whom Defendants claim they obtained prior express permission or invitation to send those faxes in the same manner as Defendants claim they obtained prior express consent to fax Plaintiff"; 3. appointing Patrick H. Peluso as class counsel; and 4. appointing Stone as class representative. The Court finds that in light of the negligible damages available under the TCPA for a violation, that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Accordingly, the Court finds that Stone has established that the prerequisites of Fed.R.Civ.P. Rule 23(b)(3) are met. Stone asserts a claim on its own behalf, as well as on behalf of a class of individuals, pursuant to the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005.[CC] PEARL DINER: Sued by Baten Rojas for Violating FLSA and NYLL ------------------------------------------------------------ EDWIN RAMIRO BATEN ROJAS (A.K.A. EDWIN), individually and on behalf of others similarly situated v. PEARL DINER, INC. (D/B/A PEARL DINER), JAMES COULIANIDIS, EMANUEL COULIANIDIS, ALEXANDER ALMONTE, and RUBEN DOE, Case No. 1:19-cv-10051 (S.D.N.Y., Oct. 30, 2019), accuses the Defendants of violating the Fair Labor Standards Act and the New York Labor Law. The Plaintiff is a former employee of the Defendants and was employed as a delivery worker and a dishwasher at the Diner. He alleges that he worked for the Defendants in excess of 40 hours per week, without appropriate minimum wage and overtime compensation for the hours that he worked. The Defendants own, operate, or control a diner located at 212 Pearl Street, in New York City, under the name "Pearl Diner."[BN] The Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Michael@Faillacelaw.com PIZZA HUT: Franchisees to Pay $6MM to End TCPA Class Action ----------------------------------------------------------- Law360 reports that several Pizza Hut franchisees have agreed to pay $6 million to clear up allegations in Florida federal court that they breached the Telephone Consumer Protection Act by texting cellphone subscribers unsolicited advertisements after their friends passed on their numbers during a promotion. The franchisees -- ADF MidAtlantic LLC, ADF Pizza I LLC, ADF PA LLC and American Huts Inc. -- have agreed to fund the multimillion dollar settlement amount. [GN] PLAYMOBIL USA: Guglielmo Files ADA Suit in NY --------------------------------------------- A class action lawsuit has been filed against Playmobil USA, Inc. The case is styled as Joseph Guglielmo, on behalf of himself and all others similarly situated, Plaintiff v. Playmobil USA, Inc., Defendant, Case No. 1:19-cv-11198 (S.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. PLAYMOBIL USA, Inc. manufactures and retails toys and games. The Company offers toys, dolls, cars, board games, playing cards, instruments, and puzzles.[BN] The Plaintiff is represented by: Russel Craig Weinrib, Esq. Stein Saks PLLC 285 Passaic St., Suite 5 Hakensack, NJ 07601 Phone: (201) 282-6500 Email: rweinrib@steinsakslegal.com RAMCO ENTERPRISES: Pantoja Suit Remanded to Monterey Superior Court ------------------------------------------------------------------- In the case, BEATRIZ CISNEROS PANTOJA, et al., Plaintiffs, v. RAMCO ENTERPRISES, L.P., Defendant, Case No. 19-CV-03336-LHK (N.D. Cal.), Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, San Jose Division, (i) granted the Plaintiff Carmela Maribel Arroyo's motion to remand, and (ii) denied her request for attorney's fees. On Feb. 25, 2014, the Plaintiff sued the Defendant, a California limited partnership, in the Superior Court of California for the County of Monterey. The Plaintiff brought suit on behalf of a putative class of all current and former employees of the Defendant who were non-exempt under the Wage Order and who performed any work for Defendants in California during the Class Period and were paid any portion of their wages on a piece rate basis. The Plaintiff generally alleged that the Defendant unlawfully underpaid the putative class members for hours worked, minimum wages, overtime wages, rest periods, and other reimbursement costs for work-related expenses. She alleged various violations of the California Labor Code and the California Business and Professions Code. She amended the class action complaint on June 9, 2014 and again on Aug. 31, 2016. The Second Amended Complaint filed on Aug. 31, 2016 replaced class representative Beatriz Pantoja with current Plaintiff Arroyo. On July 29, 2015, the Plaintiff served a settlement conference statement on the Defendant. In the settlement conference statement, the Plaintiff demanded $11.5 million to resolve all claims at issue, inclusive of costs and attorneys' fees. On May 7, 2019, the Plaintiff filed and served the Defendant with a motion for class certification. The motion for class certification included a spreadsheet that the Defendant produced on March 5, 2019 in response to written discovery. The spreadsheet identified thousands of putative class members and included the residences of some putative class members. Some putative class members were listed as residing outside of California. On June 10, 2019, the state court granted the Plaintiff's class certification motion in its entirety. On June 12, 2019, more than five years after the Plaintiff initiated the action, on June 12, 2019, Defendant RAMCO removed the action from the Superior Court of California for the County of Monterey, to the Court. Trial in the state court action was scheduled for Sept. 16, 2019. On July 12, 2019, the Plaintiff moved to remand the case back to state court on the basis that the Defendant's notice of removal was untimely. The Defendant opposed. In the present case, the only issue is whether the Defendant's notice of removal was timely. The Plaintiff contends that the Defendant's notice of removal was untimely because all three elements necessary for CAFA jurisdiction were ascertainable more than 30 days before the Defendant filed the notice of removal. Again, under CAFA, a federal court may exercise subject matter jurisdiction over a class action where (1) the parties are minimally diverse; (2) the proposed class has at least 100 members; and (3) the amount in controversy exceeds $5 million. The Defendant concedes that it was on notice more than 30 days before removal that the Plaintiff's proposed class had at least 100 members. It, however, challenges the Plaintiff's claim that the diversity and amount in controversy requirements were ascertainable from the pleadings or other papers more than thirty days before removal. Because the Plaintiff claims that the amount in controversy was ascertainable at an earlier date than minimal diversity, the Court first addresses the amount in controversy and then turns to minimal diversity. Judge Koh concludes that the amount in controversy in the case was ascertainable from the Plaintiff's July 29, 2015 settlement conference statement, almost four years before Defendant removed the case to federal court on June 12, 2019. As a result, whether the Defendant's removal was timely depends on whether and when the Plaintiff put the Defendant on notice that the final element of CAFA jurisdiction -- minimal diversity -- was satisfied. Turning to the minimal diversity issue, the Judge concludes that the Defendant had a sufficient basis to ascertain minimal diversity on May 7, 2019, when the Plaintiff served it with a spreadsheet indicating that multiple class plaintiffs currently resided outside of California. The Defendant did not remove the case until June 12, 2019, more than 30 days after ascertaining that all elements of CAFA jurisdiction were satisfied and that federal jurisdiction was proper. As a result, the Defendant's removal was untimely under 28 U.S.C. Section 1446(b)(3), and the Judge grants the Plaintiff's motion to remand. Finally, along with the motion to remand, the Plaintiff requests an award of attorneys' fees. The Judge in her discretion denies the Plaintiff's request for attorney's fees. For the foregoing reasons, Judge Koh granted the Plaintiff's motion to remand the instant case to the Superior Court of California for the County of Monterey. She also denied the Plaintiff's request for attorney's fees. The Clerk will close the file. A full-text copy of the Court's Nov. 13, 2019 Order is available at https://is.gd/mhtAcI from Leagle.com. Beatriz Cisneros Pantoja, on behalf of herself and other similarly situated employees, Plaintiff, represented by Charles Swanston, Fitzpatrick Spini & Swanston Attorneys at Law, Kristen Michelle Agnew -- kagnew@diversitylaw.com -- Diversity Law Group, APC, Larry W. Lee -- lwlee@diversitylaw.com -- Diversity Law Group, P.C., Max William Gavron -- mgavron@diversitylaw.com -- Diversity Law Group & Nicholas Rosenthal -- nrosenthal@diversitylaw.com -- Diversity Law Group. Carmela M Arroyo, Plaintiff, represented by Charles Swanston, Fitzpatrick Spini & Swanston Attorneys at Law. RAMCO Enterprises, L.P., Defendant, represented by Anthony P. Raimondo -- mcg@raimondoassociates.com -- Raimondo & Associates, Gerardo V. Hernandez, Raimondo Associates, James Daniel Miller, Raimondo & Associates, Jan Leslie Kahn -- kahn@kschanford.com -- Kahn Soares & Conway, LLP, Rissa Ann Stuart -- rstuart@kschanford.com -- Kahn, Soares & Conway, LLP, Robert Brian Zumwalt -- rzumwalt@kschanford.com -- Kahn, Soares and Conway & Steven Richard Wainess, Raimondo and Associates, a law corporation. RENOVATE AMERICA: Denial of Arbitration Bid in Nemore Suit Affirmed ------------------------------------------------------------------- In the case, REGINALD NEMORE et al., Plaintiffs and Respondents, v. RENOVATE AMERICA, INC., Defendant and Appellant, Case No. B294459 (Cal. App.), Judge Victoria M. Chavez of the U.S. Court of Appeals of California for the Second District, Division Two, affirmed the trial court's order denying Renovate's petition to compel arbitration. Plaintiffs Nemore, Violeta Senac, and Allen Bowen are homeowners who obtained financing from the County of Los Angeles through its Property Assessed Clean Energy ("PACE") program for energy efficiency or water saving improvements to their homes. Plaintiffs Senac and Bowen are ages 87, and 69, respectively. Renovate is one of two private companies retained by the County to administer the PACE program. Renovate markets its PACE financing under the brand name "HERO." The Plaintiffs entered into home improvement contracts with contractors who installed PACE improvements in their homes. The home improvement contracts specify the PACE improvements to be installed; the scope of work, price, and timing of the improvements and installation; and the parties' responsibilities regarding insurance and standards of materials and workmanship. The home improvement contracts also contain arbitration provisions requiring binding arbitration in the event of any dispute, or a claim arising out of or relating to the agreement, or the enforcement or interpretation thereof or of any controversy or claim arising out of or related to this contract, or breach thereof. The Plaintiffs filed the action against Renovate and the County on behalf of themselves and other homeowners who entered into a HERO assessment contract with the County between March 1, 2015 and March 31, 2018. They asserted causes of action against Renovate for financial elder abuse, breach of the Administration Contract under a third party beneficiary theory, violation of the Unfair Competition Law, and declaratory relief. In the general allegations of their complaint, plaintiffs allege that Renovate did not use licensed mortgage brokers to market or originate PACE loans, but instead used registered contractors to sell PACE financing and to sell and install PACE improvements. Typically, contractors introduced homeowners to the PACE program, controlled the financing application process, and obtained homeowners' signatures on PACE contracts. Plaintiffs allege that Renovate instructed its registered contractors to base the amount of improvements sold to a homeowner on the homeowner's available equity rather than the homeowner's ability to repay. As a result, PACE loans are typically larger than traditional home improvement loans. Because the PACE liens run with the land and are accorded priority status ahead of any other mortgage or lien, homeowners with PACE liens have difficulty selling or refinancing their homes. Each of the named Plaintiffs allege that they entered into PACE assessment contracts with the County to finance the cost of various energy efficient or water saving improvements and that liens securing the financing were recorded against their properties. The Plaintiffs further allege that they receive fixed incomes, primarily monthly Social Security payments; that entering into PACE assessment contracts caused their respective DTI ratios to increase substantially; and that repaying the PACE financing will consume most of their annual incomes. In the cause of action for elder abuse, Plaintiffs Senac and Bowen allege, based on the general allegations of the complaint, that Renovate "has taken, secreted, appropriated, obtained and/or retained the property of the Elder Subclass Members." In their breach of contract cause of action, the Plaintiffs allege that Renovate breached its obligations under the Administration Contract to "ensure best in class protections for property owners" against predatory lending and poor assessment servicing and to provide "special" or heightened protections for senior citizens. They further allege Renovate's breaches have caused them damage, including loss of funds they have paid in connection with the PACE loans, increased risk of foreclosure, barriers to obtain refinancing or other debt secured by their homes, reduced value of their homes, and encumbrances that reduce the equity in their homes. In their cause of action for violation of the Unfair Competition Law, the Plaintiffs allege that Renovate engaged in unlawful, unfair, or fraudulent business practices by (a) breaching its duties to plaintiffs under the Administration Contract, (b) failing to screen and monitor its registered contractors in accordance with its own policies, (c) charging an above-market rate of interest on PACE loans and a rate of interest in excess of the risks of return of principal, (d) encouraging predatory lending by determining PACE financing eligibility without considering homeowners' ability to repay, and (e) encouraging predatory lending by informing registered contractors how much funding plaintiffs qualified for based on the equity in their homes. Plaintiffs allege that because of Renovate's unlawful, unfair, or fraudulent practices, they have incurred actual financial losses and injuries including first priority PACE liens that require payment and may trigger foreclosure by the County or by pre-existing conventional mortgage lenders. In their declaratory relief cause of action, the Plaintiffs allege an actual controversy exists between them and Renovate regarding their legal rights and remedies toward one another in connection with the PACE program and PACE liens, and that they are entitled to a judicial declaration extinguishing the PACE liens on the properties, cancelling their obligations under the Assessment Contracts, and recovering payments made in connection with the PACE program and PACE liens. Renovate filed a petition to compel arbitration and a request to stay judicial proceedings pending arbitration, invoking the arbitration provisions in the home improvement contracts between the Plaintiffs and contractors who installed PACE improvements. It argued that even though it was not a signatory to the home improvement contracts, the doctrine of equitable estoppel applied to compel the Plaintiffs to arbitrate their claims against Renovate pursuant to the arbitration provisions in those contracts. The Plaintiffs opposed the petition, arguing that the arbitration provisions in the home improvement contracts were unenforceable, and that even if the arbitration provisions were enforceable, equitable estoppel did not apply. After a Dec. 5, 2018 hearing, the trial court denied Renovate's petition, concluding that the doctrine of equitable estoppel did not apply to compel the Plaintiffs to arbitrate their claims against Renovate. The appeal followed. Judge Chavez finds that the Plaintiffs' complaint does not allege a breach of any obligation under the home improvement contracts, and does not rely on any provision in those contracts to support any of the asserted causes of action. There is no similar intertwining of the Plaintiffs' claims against Renovate with the provisions of the home improvement contracts. The Plaintiffs do not refer to, rely on, or support their claims with any term or provision in the home improvement contracts, nor do they allege any breach of those provisions. In addition, the Judge finds that the factual basis for the Plaintiffs' claims is not the existence of the home improvement contracts or any alleged breach thereunder. Rather, their claims are based squarely on Renovate's obligations under the Administration Contract to "ensure best in class protections" against predatory lending and to provide special protection for seniors over 65 years of age to confirm they clearly understand the terms of the financing. Similarly, the Plaintiffs do not seek to enforce any of the terms or obligations in their respective home improvement contracts. The only operative agreement is the Administration Contract and Renovate's alleged breach of its duties under that agreement. The Judge concludes that the claims asserted against Renovate are not founded in or inextricably entwined with the terms or obligations of the home improvement contracts that contain arbitration provisions. The trial court did not err in denying the motion to compel arbitration. For these reasons, Judge Chavez affirmed the order denying the petition to compel arbitration. The Plaintiffs shall recover their costs on appeal. A full-text copy of the Court's Nov. 20, 2019 Opinion is available at https://is.gd/4SuVjq from Leagle.com. Reed Smith, Jesse L. Miller -- jessemiller@reedsmith.com -- James M. Neudecker -- jneudecker@reedsmith.com -- Matthew T. Peters, and Dennis Peter Maio -- dmaio@reedsmith.com -- for Defendant and Appellant. Hogan Lovells, Michael M. Maddigan -- michael.maddigan@hoganlovells.com -- and Vassi Iliadis -- vassi.iliadis@hoganlovells.com; Public Counsel, Cindy Panuco, Stephanie Carroll, and Nisha Kashyap -- nkashyap@publiccounsel.org; Bet Tzedek Legal Services, Jenna Miara and Jennifer Sperling for Plaintiffs and Respondents. RESIDEO TECHNOLOGIES: Faces St. Clair Securities Suit in Minn. -------------------------------------------------------------- ST. CLAIR COUNTY EMPLOYEES' RETIREMENT SYSTEM, Individually and on Behalf of All Others Similarly Situated, Plaintiff v. RESIDEO TECHNOLOGIES, INC., MICHAEL G. NEFKENS and JOSEPH D. RAGAN III, Defendants, Case No. 0:19-cv-02863 (D. Minn., Nov. 8, 2019), is brought against the Defendants for their violations of the Securities Exchange Act of 1934. The case is a securities class action on behalf of all persons, who purchased the common stock of Resideo between October 29, 2018, and October 22, 2019, inclusive, against Resideo and its President and Chief Executive Officer, Michael G. Nefkens, and Executive Vice President and Chief Financial Officer, Joseph D. Ragan III. On October 30, 2018, the Company announced that it was now trading independently from Honeywell International Inc., with the expectation of new product launches to expand its offerings in the modern home technology market. During the Class Period, Resideo continued to assure investors that the Company was poised to meet its 2018 guidance at the high end of its forecasted range, and more importantly, for 2019 the Company would achieve 4%+ organic growth and -13% adjusted EBITDA margin. Further, while the Company acknowledged it had experienced operational disruptions (primarily administrative) in connection with the spin-off, the Defendants repeatedly assured investors that any negative effects of the spin-off were largely "behind them or minimizing and reiterated their fiscal year ("FY") 2019 guidance for the Company, stating as late as August 8, 2019 that the Company's performance to date put it on track to make its FY19 revenue guidance. The Plaintiff alleges that these representations was materially false and misleading when made because the Defendants failed to disclose the following true facts, which were known to them or recklessly disregarded by them: (a) The negative operational effects of the spin-off were more substantial and persistent than disclosed and had negatively affected the Company's product sales, supply chain, and gross margins, putting Resideo's FY 19 financial forecasts at risk; and as a result of the foregoing, the Company's financial guidance lacked a reasonable basis and the Company was not on track to make its FY19 guidance as claimed. As a result of the Defendants' material misrepresentations and omissions, Resideo stock traded at artificially inflated prices of more than $26 per share during the Class Period, the Plaintiff asserts. Then, on October 22, 2019, Resideo shocked investors when it issued its preliminary financial results for the third quarter of 2019, announcing that it had missed revenue and earnings targets and was lowering its recently reaffirmed revenue outlook for FY19 by $80 million. Also on October 22, 2019, the Company announced that Defendant Ragan, the Company's CFO, would be leaving as of November 6, 2019. Following these alarming disclosures and a significant reduction in the Company's outlook for free cash flow, Resideo's stock price declined more than 40%, from a close of $15.23 per share on October 22, 2019, to a close of $9.50 per share on October 23, 2019, on massive volume of more than 16 million shares traded. Plaintiff St. Clair County Employees' Retirement System purchased Resideo common stock during the Class Period and was damaged by the Defendants' misrepresentations and violations of securities laws. Resideo Technologies is a global provider of residential comfort and security solutions, and distributor of low-voltage and security products.[BN] The Plaintiff is represented by: Carolyn G. Anderson, Esq. June P. Hoidal, Esq. ZIMMERMAN REED LLP 37-1100 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Telephone: 612 341 0400 Facsimile: 612 341 0844 E-mail: Carolyn.Anderson@zimmreed.com June.Hoidal@zimmreed.com - and - Daniel J. Pfefferbaum, Esq. Shawn A. Williams, Esq. ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: 415 288-4545 Facsimile: 415 288-4534 E-mail: shawnw@rerdlaw.com dpfefferbaum@regrdlaw.com - and - Thomas C. Michaud, Esq. VANOVERBEKE, MICHAUD & TIMMONY, P.C. 79 Alfred Street Detroit, MI 48201 Telephone: 313 578-1200 Facsimile: 313 578-1201 E-mail: tmichaud@vmtlaw.com RYDER INTEGRATED: Ct. OKs Amended Settlement Agreement in Eure Suit ------------------------------------------------------------------- In the case, TIM EURE, on behalf of himself, all others similarly situated, and on behalf of the general public, Plaintiff, v. RYDER INTEGRATED LOGISTICS, INC., a Corporation; RYDER DEDICATED LOGISTICS, INC., a Corporation; and DOES 1-100, inclusive, Defendants, Case No. 16-cv-00324-MCE-AC (E.D. Cal.), Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California granted the Parties' Stipulation to Amend the Class Action Settlement Agreement. Without affecting the finality of the Order granting the Plaintiff's Unopposed Motion For Final Approval Of Class Action Settlement, the Judge finds that the amendment to the Settlement Agreement falls within the range of reasonableness and is fair, just, and adequate and no further notice to the Class shall be required. The United Way of California shall be designated as the Cy Pres Beneficiary for the 2018 Credit Reduction tax payment in the amount of $1,975.44. Paragraph 63 of the Class Action Settlement Agreement shall be amended and modified as follows: The Settlement Administrator shall determine the amount of any tax withholding to be deducted from each Participating Class Member's Settlement Payments. All such tax withholdings shall be remitted by the Settlement Administrator to the proper governmental taxing authorities. (i) The State of California was able to pay off its Credit Reduction Account with the IRS towards the end of 2018 and issued a refund in the amount of $1,975.44, representing the 2018 Credit Reduction tax payment. The Parties agree that the 2018 Credit Reduction tax payment in the amount of $1,975.44 (Cy Pres Amount) shall be disbursed to a cy pres and have designated The United Way of California (Cy Pres Beneficiary). The Settlement Administrator shall disburse the Cy Pres Amount to the Cy Pres Beneficiary. (ii) The United Way of California is an umbrella organization, supporting multiple local United Ways throughout the state that all serve the public by working towards financial stability of the citizens they support. Many of these local United Ways have specific programs aimed at promoting steady, gainful employment of Californians, something that meets the objectives of a lawsuit brought with the aim of enforcing employee rights, and supports silent class members through the variety of programs offered. Beyond program that support job seekers and employees, the United Way also advocates at the policy level for an increase in the State minimum wage, and is thus in the interest of the settlement class. A full-text copy of the Court's Nov. 20, 2019 Order is available at https://is.gd/otmX6C from Leagle.com. Tim Eure, Plaintiff, represented by Jill Marie Vecchi -- jvecchi@turleylawfirm.com -- Turley & Mara Law Firm, APLC, William Turley -- bturley@turleylawfirm.com -- Turley & Mara Law Firm, APLC & Jamie Kathryn Serb -- jserb@turleylawfirm.com -- Turley & Mara Law Firm, APLC. Ryder Integrated Logistics, Inc. & Ryder Dedicated Logistics, Inc., Defendants, represented by Mara D. Curtis -- mcurtis@reedsmith.com -- Reed Smith LLP. SALEM COUNTY, NJ: Faces Class Action Over Illegal Strip Searches ---------------------------------------------------------------- Matt Gray, writing for NJ.com, reports that four people who were held at Salem County Correctional Facility claim they were improperly classified as suicide risks, required to wear garments that exposed their genitals and were strip searched several times a day in view of other prisoners and officers. Attorneys representing them hope to make their lawsuit alleging illegal strip searches at the facility a class-action case. A motion for class-action status will be heard in December. The plaintiffs -- Dana Clark-Stevenson, of Salem County, Mark Hendricks, of Gloucester County, and Cumberland County residents Kenneth Fuqua and Darius Snead -- allege they were subjected to humiliating conditions and that their civil rights were violated during their unrelated stays at the facility. The suit, originally filed in 2017, names Salem County and jail Warden John S. Cuzzupe. The county is following state regulations for handling prisoners, Cuzzupe said on Oct. 29, adding that the jail is inspected annually by the state and is in compliance. "The county has taken the position that we're doing things appropriately with regard to their claims of strip searching and classifying inmates at risk," Cuzzupe said on Oct. 29. "It's not like we're doing something different than anybody else. It's all approved by the state." Clark-Stevenson was jailed for two six-day stints in 2016 and 2017, first for missing a municipal court date in a non-indictable matter and the second time for failing to pay a municipal fine, according to the suit. She claims she was strip searched prior to admission to general population, classified as suicidal "for no apparent reason," made to wear garments that exposed her private parts, was routinely strip searched up to three times a day "absent any penological purpose" and subjected to these searches in a public setting. Searches were conducted in her cell, where a glass window meant other prisoners and male officers could see what was happening, according to the lawsuit, and a camera in the cell allowed male officers in other locations at the jail to see her. Those classified as suicidal are issued "turtle suits," an anti-suicide smock that fastens with Velcro. The garments at Salem jail were worn out "because of the sheer volume of individuals misclassified" and didn't close properly, the suit alleges, leaving the plaintiffs' genitals exposed. Fuqua was arrested in 2016 for an outstanding warrant and spent 10 days at the jail. Snead was jailed in 2017 for failing to pay a $250 municipal fine. Both make similar claims about being classified as suicidal for no valid reason, having to wear the turtle suits and being subjected to the repeated searches. Hendricks worked in the jail kitchen during his 2015 stay and was subjected to a strip search after each shift, even though the jail had procedures in place to ensure that all kitchen utensils were accounted for when prisoners completed their duties. Those searches occurred in view of his fellow workers, according to the suit. He was also strip searched each time he was taken to court, again in the presence of other detainees. The plaintiffs say the jail's system for determining if a prisoner is suicidal is illegal. "Salem County's classification system failed to follow New Jersey law in determining whether someone was a threat to himself or others," they claim, adding that strip-searching detainees charged with non-indictable offenses, conducting daily strip searches for no valid reason and failing to provide adequate garments in the "suicide unit" violates the state constitution. If approved as a class action, the class would include anyone subjected to a non-private strip search at the jail, those charged with a non-indictable offense who were strip searched, those classified as suicidal and female prisoners who were strip searched in the presence of male corrections officers or searched while in a cell where a camera feed could be viewed by male officers elsewhere in the facility. The suit alleges there are hundreds "if not thousands" of people improperly classified as suicidal and improperly subjected to strip searches in view of other prisoners, staff and cameras. The class-action period described in the suit begins in April 2015. In a brief arguing against class status, attorneys for the county argued that the claims should be severed since each case is different. "Each were incarcerated at different points in time, for different offenses, and subject to searches based on their individual characteristics," attorney Brian H. Leinhauser wrote. "Allowing the four plaintiffs to proceed in a single lawsuit will only serve to prejudice the defendants should this case go to trial by permitting the jury to hear testimony on unproven allegations regarding the necessity to conduct a strip search based on individualized assessments of plaintiffs." The plaintiffs seek compensatory and punitive damages, along with an injunction barring jail officials from continuing the practices alleged in the suit. Attorneys for the plaintiffs -- Carl Poplar, Kevin P. McCann, Shanna McCann and William Riback -- either didn't return calls for comment or declined to comment on the case. The county previously asked the state Attorney General to defend it against the lawsuit, but the office declined. The county appealed that ruling and lost earlier in October. The appellate court found that the administration of the county jail, including development and implementation of search procedures "are the exclusive responsibility of the county." The allegations in this suit are similar to those described in another claim against the jail that was filed earlier this year in state Superior Court. In that case, a Mullica Hill woman was arrested for leaving the scene of a traffic stop and jailed for two days in 2017. During that time, she alleged she was placed on suicide watch status without proper evaluation by a licensed mental health professional, required to wear an anti-suicide smock and subjected to three strip searches during her stay. While Cuzzupe wouldn't comment on specific allegations in that suit, he said in August that detainees charged with indictable offenses are strip searched upon entry to the facility, as are those classified as at-risk of self-harm and drug addicts going through withdrawal while incarcerated. [GN] SAMSUNG ELECTRONICS: Summary Judgment in Antitrust Suit Upheld -------------------------------------------------------------- In the case, In re: OPTICAL DISK DRIVE PRODUCTS ANTITRUST LITIGATION. INDIRECT PURCHASER CLASS, Plaintiff-Appellant, v. SAMSUNG ELECTRONICS COMPANY, LTD.; et al., Defendants-Appellees, Case No. 18-15058 (9th Cir.), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's order granting summary judgment in favor of the Defendants. In the class action, Plaintiff Indirect Purchaser Class ("IPC") alleges violations of the Sherman Act, California's Cartwright Act, and California's Unfair Competition Law. IPC contends that the class members, indirect purchasers of optical disk drives ("ODDs"), were injured by an unlawful conspiracy to slow the declining prices of ODDs. The district court granted summary judgment on the issues of causation, injury, and damages based on IPC's failure to create a genuine dispute of material fact as to whether the overcharge was passed on to the class members ("pass-through" issue). IPC argues that the opinion of its economics expert, as well as certain documentary evidence, suffices to create a genuine dispute of material fact on pass-through. The expert's opinion is that nearly all of the Defendants' alleged overcharges were passed on to the class members in the form of either (i) higher price, or (ii) reduced computer quality. In support of his opinion, IPC's expert principally relies on certain regression analyses. IPC also identifies a variety of documentary evidence. Viewed in the light most favorable to IPC, the Court holds that the evidence establishes that the ODD market was competitive. However, whether viewed in isolation or in combination with the other record evidence, it does not suffice to create a genuine dispute that pass-through actually occurred. In order for a reasonable jury to decide in favor of IPC, it would have to engage in speculation. In light of the foregoing, the Court affirmed the district court's order granting summary judgment. It need not address the additional arguments concerning damages raised by IPC, nor the alternative arguments raised by the Defendants in their answering brief. A full-text copy of the Court's Nov. 20, 2019 Order is available at https://is.gd/lQuGFD from Leagle.com. SRA ASSOCIATES: Genovese Files Class Suit Under FDCPA ----------------------------------------------------- A class action lawsuit has been filed against SRA Associates, Inc. The case is styled as Sara Genovese, individually and on behalf of all others similarly situated, Plaintiff v. SRA Associates, Inc. doing business as: SRA Associates of New Jersey, Defendant, Case No. 2:19-cv-06882 (E.D.N.Y., Dec. 6, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Sra Associates Inc was founded in 1995. The company's line of business includes collection and adjustment services on claims and other insurance related issues.[BN] The Plaintiff is represented by: David M. Barshay, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Phone: (516) 203-7600 Fax: (516) 706-5055 Email: dbarshay@barshaysanders.com STARBUCKS CORP: Certification of Starbucks Employees Class Sought ----------------------------------------------------------------- In the class action lawsuit styled as DOUGLAS TROESTER, on behalf of himself, and all others similarly situated, the Plaintiffs, vs. STARBUCKS CORPORATION, a Washington corporation; and DOES 1-50, inclusive, the Defendants, Case No. 2:12-cv-07677-CJC-PJW (C.D. Cal.), the Plaintiff will move the Court on January 27, 2020, for an order: 1. certifying Plaintiff class: "all Starbucks employees in California from August 6, 2008 through December 31, 2012 who worked a closing shift in a Starbucks store and performed work after clocking out"; 2. appointing Plaintiff as class representative for the class proposed or later proposed and approved by the Court and any other sub-class the Court may devise; and 3. appointing Shaun Setareh and Thomas Segal of Setareh Law Group, Stanley Saltzman of Marlin & Saltzman LLP, David Spivak of Spivak Law Firm and Louis Benowitz of Law Offices of Louis Benowitz as Class Counsel pursuant to Fed. 15 R. Civ. P. 23(g). Starbucks' practice during the time period of the case was to require employees on closing shifts to perform duties after clocking out for their shift, including uploading store data to Starbucks' computer system, programming the alarm, and walking coworkers to their cars. The issue of the compensability of that time is an overarching common issue -- if it is compensable the class will win. If it is not compensable, Starbucks will win.[CC] Attorneys for the Plaintiff are: Shaun Setareh, Esq. Thomas Segal, Esq. William Pao, Esq. SETAREH LAW GROUP 315 S. Beverly Drove, Suite 315 Beverly Hills, CA 90212 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com thomas@setarehlaw.com william@setarehlaw.com - and - Stanley Saltzman, Esq. MARLIN & SALTZMAN LLP 29800 Agoura Road, Suite 310 Agoura Hills, CA 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 - and - David Spivak, Esq. THE SPIVAK LAW FIRM 16530 Ventura Bl., Suite 203 Encino, CA 91436 Telephone: (818) 582-3086 Facsimile: (818) 582-2561 E-mail: david@spivaklaw.com - and - Louis Benowitz, Esq. LAW OFFICES OF LOUIS BENOWITZ 9454 Wilshire Boulevard, Penthouse Beverly Hills, CA 90212 Telephone: (310)844-5141 Facsimile: (310)492-4056 SUBARU OF AMERICA: Faces Class Action Over Defective Windshields ---------------------------------------------------------------- Denis Flierl, writing for Torque News, reports that Subaru has more bad news than good news in October. See what is happening to some new 2017-2019 Subaru Forester, Outback, and Crosstrek windshields. Subaru of America (SOA) can't seem to catch a break and is now hit with its second class-action lawsuit. Torque News reported on October 16, Subaru and Toyota have a new lawsuit over recall repairs on the BRZ and Toyota 86 causing engine fires. A new class-action lawsuit seeks damages against Subaru for the drivers of 2017-2019 Subaru Forester, Outback, and Crosstrek models alleged to have defective windshields. The lawsuit, filed on behalf of Christine Powell by attorney Peter Muhic of Philadelphia and attorneys for a Pittsburgh-based firm, Carlson Lynch LLC, contends 2017-19 Forester and Outback models have "dangerous" windshields that are prone to "cracking, chipping and otherwise breaking." 2017-2019 Subaru Outback windshields A similar windshield lawsuit was filed against SOA in 2017 claiming the 2015-2016 Subaru Outback and Legacy model's windshield were spontaneously breaking. A judge ruled the plaintiff had sufficiently alleged claims on behalf of a proposed class of California drivers under a mix of state and federal consumer protection, unfair competition and warranty laws. The California judge ruled Subaru knew of the defects and the plaintiffs received compensation in that lawsuit. The recent lawsuit says replacement windshields for 2017-2019 Forester, Outback, and Crosstrek models are not fixing the problem and contends the defect prevents "the safe and proper operation" of technology intended to prevent collisions. Subaru uses a driver assist safety system attached to the inside of the upper windshield and the lawsuit contends cracks in the windshield hamper the EyeSight safety system from working properly. 2019 Subaru Forester Powell, a Wisconsin woman, says the windshield on her 2018 Subaru Forester cracked twice in an 18-month period. The suit says Subaru will not cover the cost of a new windshield or pay for recalibrating the vehicles' EyeSight driver-assist system which can cost from $1,000 to $2,000. Torque News checked the National Highway Traffic Safety Administration (NHTSA) website and found numerous complaints about Outback and Forester windshields cracking, and some while the car is parked. What should Forester, Outback, and Crosstrek owners do? If you own a 2017-2019 Subaru Outback, Forester, or Crosstrek and have experienced a cracked windshield for no apparent reason, you can file a complaint with the NHTSA by going to this website link, or call 1-888-327-4236. Or you can submit your contact information here and an attorney from Carlson Lynch will be in touch to review your case further. [GN] TACO MADRE: Maldonado Seeks to Recover Unpaid Overtime Wages ------------------------------------------------------------ Noe Maldonado, on behalf of himself and all other plaintiffs similarly situated v. Taco Madre Geneva, Inc., Taco Madre, Inc., Taco Madre Naperville, Inc., and Israel Garcia, Case No. 1:19-cv-07965 (N.D. Ill., Dec. 5, 2019), is brought as a collective action to recover unpaid overtime wages under the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act. The Defendants did not pay the Plaintiff and other similarly situated employees proper overtime wages of one and one-half time his regular rate of pay for all hours worked above 40 hours in a workweek, says the complaint. The Plaintiff asserts he was working a substantial amount of overtime but was not getting paid for it. The Plaintiff worked as a chef for Taco Madre. The Defendant is an Illinois corporation owning and operating various restaurants in the Chicago suburbs.[BN] The Plaintiff is represented by: Kimberly Hilton, Esq. John Kunze, Esq. Thalia Pacheco, Esq. THE FISH LAW FIRM, P.C. 200 East Fifth Avenue, Suite 123 Naperville, IL 60563 Phone: 630.355.7590 Fax: 630.778.0400 Email: admin@fishlawfirm.com khilton@fishlawfirm.com jkunze@fishlawfirm.com tpacheco@fishlawfirm.com TEVA PHARMACEUTICALS: St. Petersburg ERS Suit Moved to D. Conn. --------------------------------------------------------------- The class action lawsuit styled as Employees' Retirement System of the City of St. Petersburg, Florida, Plaintiff v. Kare Schultz and Michael Mcclellan, Defendants; Ontario Teachers' Pension Plan Board, Respondent; and Paul Huang, Ramon Geraldino, David Magana, Ezra Erani, and HMG Global Initiative Inc., Movants, Case No. 2:19-cv-02711 (Filed June 21, 2019), was transferred from the U.S. District Court for the Eastern District of Pennsylvania to the U.S. District Court for the District of Connecticut (New Haven) on Nov. 8, 2019. The District of Connecticut Court Clerk assigned Case No. 3:19-cv-01768-RNC to the proceeding. The case is assigned to the Hon. Judge Robert N. Chatigny. The case is a federal securities class action against Teva Pharmaceutical Industries Ltd. and certain of its executive officers for violations of the federal securities laws. The Plaintiff brings the action on behalf of all persons or entities, who purchased or otherwise acquired shares of Teva American Depositary Shares (ADS) between August 4, 2017, and May 10, 2019, inclusive, seeking to pursue remedies under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The Exchange Act claims allege that the Defendants engaged in a fraudulent scheme to artificially inflate the Company's share price. As a result of the fraud, the Company has lost a substantial portion of its value and its investors have incurred substantial losses. Teva Pharmaceutical manufactures and markets generic pharmaceutical products. The Company provides high-quality health-care by developing, producing and marketing affordable generic, innovative and specialty products, as well as active pharmaceutical ingredients.[BN] TEXAS DE BRAZIL: Non-PAGA Claims in Chavez Dismissed w/o Prejudice ------------------------------------------------------------------ In the case, WENDY CHAVEZ, on behalf of herself and all other similarly situated, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorneys General Act of 2004, Plaintiff, v. TEXAS DE BRAZIL (FRESNO), et al., Defendants, Case No. 1:19-CV-0502 AWI BAM (E.D. Cal.), Judge Anthony W. Ishii of the U.S. District Court for the Eastern District of California dismissed without prejudice the Plaintiff's individual and class action claims (non-PAGA claims). On Oct. 28, 2019, the parties filed a stipulation for dismissal of the Plaintiff's individual and class claims and for the filing of Second Amended Complaint that pursued a state law Private Attorneys General Act ("PAGA") claim. The dismissal of the individual and class claims is based on an arbitration agreement that the Plaintiff signed in connection with her employment with the Defendants. On Oct. 30, 2019, the Court requested additional information from the Plaintiff's counsel regarding the three Diaz v. Trust Territory of Pac. Islands, 876 F.2d 1401 (9th Cir. 1989) factors that a court is to consider before permitting the voluntary dismissal of a putative class action. On Nov. 5, 2019, the Plaintiff's counsel submitted the additional information. Federal Rule of Civil Procedure 23(e) requires courts to approve the proposed voluntary dismiss of a class claim even before the class has been certified. Therefore, when parties seek to voluntarily dismiss class claims, the Court must be aware of prejudice to a class and consider three factors before authorizing a dismissal: (1) class members' possible reliance on the filing of the action if they are likely to know of it either because of publicity or other circumstances, (2) lack of adequate time for class members to file other actions, because of a rapidly approaching statute of limitations, (3) any settlement or concession of class interests made by the class representative or counsel in order to further their own interests. In the case, with respect to the first Diaz factor, the initial stipulation and the supplemental materials demonstrate that the Plaintiff's counsel is unaware of any publicity surrounding the filing of the case, no potential class members have contacted the counsel, the counsel unsuccessfully attempted to contact three putative class members, the counsel is unaware of any foregone opportunities by the class members to participate in individuals suits or other class actions, and no class member received written notice of the suit. From the counsel's submissions, Judge Ishii concludes that there is either no or insubstantial detrimental reliance by the member of the putative class action. With respect to the second Diaz factor, the counsel points out that, per American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), the statutes of limitations were all tolled as to the class when the complaint was filed. Further, the counsel is unaware of any imminently approaching limitations periods that would leave the putative class members with inadequate time to file other actions. From this submission, the Judge does not detect a significant statute of limitations problem. Finally, with respect to the third Diaz factor, the stipulation indicates that the dismissal of the class claims is to be without prejudice. Because the dismissal is without prejudice, the other class members will be able to pursue claims against the Defendants. Additionally, no class has been certified and no motion to certify class has been filed. The Judge concludes that the interests of the class are not adversely affected. Because the submissions of the counsel and the Diaz factors do not show that the putative class will be prejudiced by the proposed voluntary dismissal, the Judge will generally give effect to the stipulation. Per the stipulation, the Plaintiff's individual and class action claims will be dismissed without prejudice. The Plaintiff will file and serve her proposed second amended complaint, but the second amended complaint will add jurisdictional allegations. Because the Judge will not permit the proposed second amended complaint to be filed without jurisdictional allegations, the second amended complaint will not be deemed to have been filed on Oct. 28, 2019 (the date it was lodged as part of the parties' stipulation). Accordingly, Judge Ishii, per the parties' stipulation, dismissed without prejudice the Plaintiff's individual and class action claims (non-PAGA claims). The Plaintiff will file the proposed Second Amended Complaint, but will add jurisdictional allegations to the proposed Second Amended Complaint, within seven days of service of the order. A full-text copy of the Court's Nov. 6, 2019 Order is available at https://is.gd/SeJ2RH from Leagle.com. Wendy Chavez, Plaintiff, represented by David Glenn Spivak -- david@spivaklaw.com -- The Spivak Law Firm, Stephanie Brenna Greenberg -- stephanie@spivaklaw.com -- The Spivak Law Firm & Walter L. Haines -- whaines@uelglaw.com -- United Employees Law Group, PC. Texas De Brazil (Concord), a California corporation, Texas De Brazil (Fresno) Corporation, a California corporation, Texas De Brazil (Carlsbad) Corporation, a California corporation, Texas De Brazil (Irvine), a California corporation & Texas De Brazil (Oxnard), a California corporation, Defendants, represented by Adam J. Fiss -- afiss@littler.com -- Littler Mendelson, Marlene S. Muraco -- mmuraco@littler.com -- Littler Mendelson & Uliana A. Kozeychuk -- ukozeychuk@littler.com -- Littler Mendelson, P.C.. TIDY SERVICES: Fischler Files ADA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Tidy Services, Inc. The case is styled as Brian Fischler Individually and on behalf of all other persons similarly situated, Plaintiff v. Tidy Services, Inc., Defendant, Case No. 1:19-cv-06843 (E.D.N.Y., Dec. 5, 2019). The Plaintiff filed the case under the Americans with Disabilities Act. Tidy Services is a family-owned company that specializes in solid and liquid waste disposal and recycling.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Lipsky Lowe LLP 630 Third Avenue New York, NY 10017-6705 Phone: (212) 392-4772 Fax: (212) 444-1030 Email: doug@lipskylowe.com TWITTER INC: Kaplan Fox Files Securities Class Action in Calif. --------------------------------------------------------------- Kaplan Fox & Kilsheimer LLP (www.kaplanfox.com) has filed a class action suit in the United States District Court for the Northern District of California against Twitter, Inc. (NYSE: TWTR), Jack Dorsey, Twitter's Chief Executive Officer, and Ned Segal, Twitter's Chief Financial Officer (collectively, the "Defendants"). The complaint alleges that Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the SEC, and is brought by plaintiff on behalf of all persons and entities who purchased the publicly traded common stock of Twitter from August 6, 2019 through October 23, 2019, inclusive (the "Class Period"). The complaint further alleges that on August 6, 2019, Twitter publicly disclosed through a tweet that it recently found issues where certain user settings choices designed to target advertising were not working as intended. Twitter represented that "We recently discovered and fixed issues related to your settings choices for the way we deliver personalized ads, and when we share certain data with trusted measurement and advertising partners." (Emphasis added). However, unknown to investors, while Twitter represented that it "fixed" certain issues relating to user choice settings, Defendants failed to disclose that the changes implemented to fix these issues adversely affected Twitter's ability to target advertising, including the targeting of advertising through its Mobile App Promotion ("MAP") product, which caused a material decline in advertising revenue. On October 24, 2019, before the market opened, the Company disclosed its financial results for the quarter ended September 30, 2019 and conducted a conference call with investors. During the conference call, Defendant Dorsey, disclosed that Twitter "had some missteps and bugs in our map ads . . . We discovered and took steps to remediate bugs that largely affected our legacy map product. These bugs affected our ability to target ads and share data with measurement and partners. We also discovered that certain personalization and data sightings were not operating as expected." On this news, Twitter's shares declined from a closing price of $38.83 per share on October 23, 2019, to close at $30.73 per share, a decline of $8.10 per share, or over 20%, on heavier than average trading volume. If you are a member of the proposed Class, you may move the court no later than 60 days from October 30, 2019. to serve as a lead plaintiff for the proposed Class. You need not seek to become a lead plaintiff in order to share in any possible recovery. Plaintiff seeks to recover damages on behalf of the proposed Class and is represented by Kaplan Fox & Kilsheimer LLP (www.kaplanfox.com). Our firm, with offices in New York, San Francisco, Los Angeles, Chicago, and New Jersey, has decades of experience in prosecuting investor class actions and actions involving violations of the Federal securities laws. If you have any questions about this Notice, the action, your rights, or your interests, or would like a copy of the complaint, please e-mail attorneys Jeff Campisi (jcampisi@kaplanfox.com), or Larry King (lking@kaplanfox.com), or contact them by phone, regular mail, or fax: Jeffrey P. Campisi KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Toll-Free Telephone: (800) 290-1952 Telephone: (212) 687-1980 Fax: (212) 687-7714 E-mail address: jcampisi@kaplanfox.com Laurence D. King KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 San Francisco, CA 94104 Telephone: (415) 772-4700 Fax: (415) 772-4707 E-mail address: lking@kaplanfox.com [GN] UNIFIN INC: Berkowitz Files FDCPA Suit in E.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Unifin Inc. and Cach, LLC. The case is styled as David Berkowitz, individually and on behalf of all others similarly situated, Plaintiff v. Unifin Inc., Cach, LLC, John Does 1-25, Defendants, Case No. 1:19-cv-06852 (E.D.N.Y., Dec. 5, 2019). The Plaintiff filed the case under the Fair Debt Collection Practices Act. Unifin, Inc. is a full service BPO and Accounts Receivable Management firm.[BN] The Plaintiff is represented by: Raphael Deutsch, Esq. Stein Saks PLLC 285 Passaic st Hackensack, NJ 07601 Phone: (347) 668-9326 Email: rdeutsch@steinsakslegal.com UZBEK LOGISTICS: Class of Drivers Certified in Kopaleishvili Suit ----------------------------------------------------------------- The Hon. Timothy S. Black grants the Plaintiff's motion for class certification in the lawsuit captioned RAUL KOPALEISHVILI, on behalf of himself and others similarly-situated v. UZBEK LOGISTICS, INC., et al., Case No. 1:17-cv-00702-TSB (S.D. Ohio). The Court certifies this class: All drivers who entered into written contracts with Uzbek Logistics, Inc. and/or Uzbek Transport Express, LLC since April 2009 requiring payment on a "per mile" basis. The class does not include those drivers whose contracts expressly state compensation will be paid "based on practical miles." Judge Black appoints Raul Kopaleishvili as class representative and his counsel from the law firms of Croskery Law Offices and Virginia & Ambinder LLP as class counsel. The Plaintiff shall file an amended proposed notice within 10 days of entry of this Order reflecting the revised class certified by this Order, Judge Black also rules. Mr. Kopaleishvili brings this action on behalf of himself and those similarly situated setting forth a single breach of contract claim against his former employers, Defendants Uzbek Logistics, Inc. and Uzbek Transport Express, LLC. He alleges that the Defendants breached their employment contracts by paying truck drivers a per-mile rate based on "practical miles," calculated using an atlas, MapQuest, or Google Maps, rather than based on the "actual miles" they drove. He also alleges that as a result of being paid based on practical miles, his "compensation was regularly short by at least 100 miles in every payment."[CC] VOYA FINANCIAL: Continues to Defend Goetz Class Action ------------------------------------------------------ Voya Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 6, 2019, for the quarterly period ended September 30, 2019, that the company continues to defend a class action suit entitled, Goetz v. Voya Financial and Voya Retirement Insurance and Annuity Company (USDC District of Delaware, No. 1:17-cv-1289). A putative class action in which plaintiff, a participant in a 401(k) plan, seeks to represent other participants in the plan as well as a class of similarly situated plans that "contract with [Voya] for recordkeeping and other services." Plaintiff alleges that "Voya" breached its fiduciary duty to the plan and other plan participants by charging unreasonable and excessive recordkeeping fees, and that "Voya" distributed materially false and misleading 404a-5 administrative and fund fee disclosures to conceal its excessive fees. The Company denies the allegations, which it believes are without merit, and intends to defend the case vigorously. No further updates were provided in the Company's SEC report. Voya Financial, Inc. operates as a retirement, investment, and employee benefits company in the United States. It operates through four segments: Retirement, Investment Management, Employee Benefits, and Individual Life. The company was formerly known as ING U.S., Inc. and changed its name to Voya Financial, Inc. in April 2014. Voya Financial, Inc. was incorporated in 1999 and is based in New York, New York. VOYA FINANCIAL: Still Defends Barnes COI Litigation --------------------------------------------------- Voya Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 6, 2019, for the quarterly period ended September 30, 2019, that the company continues to defend against a cost of insurance litigation, entitled, Barnes v. Security Life of Denver (USDC District of Colorado, No. 1:18-cv-00718) (filed March 27, 2018). A putative class action in which the plaintiff alleges that his insurance policy only permitted the Company to rely upon his expected future mortality experience to establish and increase his cost of insurance, but the Company instead relied upon other, non-disclosed factors to do so. Plaintiff alleges breach of contract and conversion claims against the Company and also seeks declaratory relief. The Company denies the allegations in the complaint, believes the complaint to be without merit, and intends to defend the matter vigorously. No further updates were provided in the Company's SEC report. Voya Financial, Inc. operates as a retirement, investment, and employee benefits company in the United States. It operates through four segments: Retirement, Investment Management, Employee Benefits, and Individual Life. The company was formerly known as ING U.S., Inc. and changed its name to Voya Financial, Inc. in April 2014. Voya Financial, Inc. was incorporated in 1999 and is based in New York, New York. VOYA FINANCIAL: Zhou Class Suit Underway in Colorado ---------------------------------------------------- Voya Financial, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 6, 2019, for the quarterly period ended September 30, 2019, that the company is defending against a putative class action suit entitled, Zhou v. Voya Financial, Inc. and Security Life of Denver (USDC District of Colorado, No. 1:19-cv-02781)(filed September 27, 2019). A putative class action in which the plaintiff alleges that the Company did not properly administer certain universal life insurance policies. The plaintiff claims that the Company did not timely credit interest earned on the payment of her premiums and incorrectly calculated the amount of interest that the Company credited to her account. In addition to the class allegations, the lawsuit alleges breach of contract and conversion and seeks declaratory and injunctive relief. The Company denies the allegations, which it believes are without merit, and intends to defend the case vigorously. Voya Financial, Inc. operates as a retirement, investment, and employee benefits company in the United States. It operates through four segments: Retirement, Investment Management, Employee Benefits, and Individual Life. The company was formerly known as ING U.S., Inc. and changed its name to Voya Financial, Inc. in April 2014. Voya Financial, Inc. was incorporated in 1999 and is based in New York, New York. WATTS HAY COMPANY: Garcia Files Suit in Cal. Super. Ct. ------------------------------------------------------- A class action lawsuit has been filed against WATTS HAY COMPANY. The case is styled as Jose Garcia, Luis Cazarez, on behalf all of others similarly situated, Plaintiffs v. WATTS HAY COMPANY, A CALIFORNIA COMPANY, JARED ALLEN WATTS, Defendants, Case No. BCV-19-103402 (Cal. Super. Ct., Kern Cty., Dec. 5, 2019). The case type is stated as "Other Employment - Civil Unlimited". WATTS HAY CO operates in the Transportation of Freight and Cargo industry in Bakersfield, CA.[BN] The Plaintiff is represented by JONATHAN MELMED, ESQ. WATTS REGULATOR: Accounting of Settlement Funds in Klug Ordered --------------------------------------------------------------- In the cases, CURTIS KLUG, individually and on behalf of all others similarly situated; LAWRENCE NOVER, and NELS ROE, Plaintiffs, v. WATTS REGULATOR COMPANY, Defendant. DURWIN SHARP, on behalf of himself and all others similarly situated; JOSEPH PONZO, on behalf of himself and all others similarly situated; KATHRYN MEYERS, on behalf of herself and all others similarly situated; and JOSHUA WHIPP, on behalf of himself and all others similarly situated; Plaintiffs, v. WATTS REGULATOR CO., Defendant, Case Nos. 8:15CV61, 16CV200 (D. Neb.), Judge Joseph F. Bataillon of the U.S. District Court for the District of Nebraska has entered an order regarding the accounting of the money distributed by Berger & Montague Law Firm as part of the class action. The matter is before the Court on a letter dated Nov. 5, 2019, from Counsel Glen Abrahamson of the Berger & Montague Law Firm. It appears from the letter that certain settlement funds may have been appropriated by Craig Cohen, a subrogation attorney. Criminal charges are currently pending against Mr. Cohen regarding these actions. Accordingly, Judge Bataillon ordered a phone conference to discuss the same with the counsel. Likewise, the Judge will require and order the Berger & Montague Law Firm to perform an accounting of the money distributed by the firm as part of the class action. Based on the foregoing, Judge Bataillon ordered that the counsel be provided with phone conference information via email. The law firm of Berger & Montague will perform an accounting of the money distributed by the firm as part of the class action. Such accounting will be provided to the Court within 30 days of the date of the Order. The counsel for the law firm of Berger & Montague is ordered to provide a copy of the Order to the counsel for the Defendant Craig Cohen. A full-text copy of the Court's Nov. 13, 2019 Order is available at https://is.gd/4Uj83y from Leagle.com. Curtis Klug, individually and on behalf of all others similarly situated, Plaintiff, represented by Adam A. Edwards, GREG COLEMAN LAW FIRM, pro hac vice, Bryan L. Clobes, CAFFERTY, CLOBES LAW FIRM, pro hac vice, Daniel O. Herrera, CAFFERTY, CLOBES LAW FIRM, pro hac vice, Edward A. Wallace, WEXLER, WALLACE LAW FIRM, pro hac vice, Glen L. Abramson, BERGER, MONTAGUE LAW FIRM, Gregory F. Coleman, GREG COLEMAN LAW FIRM, Jeffrey L. Osterwise, BERGER, MONTAGUE LAW FIRM, Joseph G. Sauder, MCCUNE, WRIGHT LAW FIRM, pro hac vice, Lisa A. White, GREG COLEMAN LAW FIRM, pro hac vice, Mark E. Silvey, GREG COLEMAN LAW FIRM, pro hac vice & Shanon J. Carson, BERGER, MONTAGUE LAW FIRM, pro hac vice. Lawrence Nover, et al. are represented by Bryan L. Clobes, Esq. -- bclobes@caffertyclobes.com -- and -- Daniel O. Herrera, Esq. -- dherrera@caffertyclobes.com -- CAFFERTY, CLOBES LAW FIRM -- Edward A. Wallace, Esq. -- eaw@wexlerwallace.com -- WEXLER, WALLACE LAW FIRM -- Glen L. Abramson, Esq. -- gabramson@bm.net -- Jeffrey L. Osterwise, Esq. -- josterwise@bm.net -- and -- Shanon J. Carson, Esq. -- scarson@bm.net -- BERGER, MONTAGUE LAW FIRM. Watts Regulator Company is represented by David S. MacCuish, Esq. -- david.maccuish@alston.com -- and -- Evan W. Sippel-Feldman, Esq. -- evan.sippel-feldman@alston.com -- ALSTON, BIRD LAW FIRM -- Jodi D. Oley, Esq. -- joley@eckertseamans.com -- and -- Keith E. Smith, Esq. -- ksmith@eckertseamans.com -- ECKERT, SEAMANS LAW FIRM. Farmers Insurance Exchange, Interested Party, represented by David Williams, WILLIAMS & ASSOCIATES, pro hac vice & Patrick S. Cooper, FRASER, STRYKER LAW FIRM. State Farm Fire & Casualty Co., Interested Party, represented by Joel M. Carney, GOOSMANN LAW FIRM & William J. Hoffmann, GROTEFELD, HOFFMANN LAW FIRM, pro hac vice. WELLS FARGO: Loughrans Suit Stayed Pending Grundy Case ------------------------------------------------------ In the class action lawsuit styled as Daniel and Margaret Loughran on behalf of themselves and all other similarly situated, the Plaintiffs, vs. WELLS FARGO BANK, N.A., d/b/a WELLS FARGO HOME MORTGAGE, et al., the Defendants, Case No. 1:19-cv-04023 (N.D. Ill.), the Hon. Judge Virginia M. Kendall entered an order: 1. granting Law Firm Defendants' motion to stay pending resolution of Grundy County case (joined by the other Defendants) pursuant to Colorado River; 2. dismissing Defendants' motions to dismiss without prejudice; 3. directing Defendants to may refile motions to dismiss upon resolution of the state-court foreclosure action; and 4. striking the Loughrans' motion for class certification with leave to refile pending resolution of the state-court foreclosure action. On December 28, 2011, the Loughrans were named as Defendants in a foreclosure action filed in Grundy County Circuit Court. The named plaintiff in the foreclosure action was U.S. Bank. The Court said, "Defendants argue that a stay pursuant to the Colorado River abstention doctrine is appropriate here. Motions seeking abstention under the Colorado River doctrine are typically filed pursuant to Federal Rule of Civil Procedure 12(b)(1), and the Court will construe the Defendants' motion as one filed pursuant to that rule." When evaluating such a motion, the Court must accept all well-pleaded facts as true and draw reasonable inferences in favor of the plaintiff when determining whether it should decline to exercise jurisdiction and stay the proceeding. In its consideration, the Court "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." The Colorado River doctrine, however, creates a narrow exception to that rule, allowing federal courts in some exceptional cases to defer to a concurrent state-court case as a matter of 'wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'[CC] WFS EXPRESS: Temporary Stay of Bautista Suit Extended for 120 Days ------------------------------------------------------------------ In the case, JIRIKI BAUTISTA, an individual, ARI SILVA, an individual, Plaintiff, v. WFS EXPRESS, a Delaware corporation, CONSOLIDATED AVIATION SERVICES, a New York Corporation, Defendants, Case No. C18-0757 RSM (W.D. Wash.), Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington, Seattle, extended the temporary stay of the case for 120 days. On April 25, 2018, the Plaintiffs commenced the action by filing a complaint in King County Superior Court against the Defendants. On May 25, 2018, the Defendants removed the action to the U.S. District Court for the Western District of Washington pursuant to the Class Action Fairness Act. In the subsequent 17 months, the Parties have participated in substantial documentary discovery, including the production of voluminous timekeeping and payroll data for the Defendants' employees, who comprise the putative class. The counsel for the Parties have conferred regarding the relevant factual and legal issues in the case, and whether it would be preferable to participate in early mediation before undertaking signification litigation and motions practice relating to the validity of the Plaintiffs' claims and theories. The Parties have also considered the Court's practice of encouraging litigants to explore early settlement initiatives that might shorten the duration and cost of litigation. As result of these discussions, the Parties have agreed to mediate with Judge Steven Scott. A mediation with Judge Scott was originally set for Oct. 23, 2019. Prior to that mediation date, it became clear that the Parties' needed to exchange additional information and discovery before concerted settlement discussions could occur. Based on the need for a further exchange of information and discovery, the Parties struck the Oct. 23, 2019 mediation date. A new mediation date of Jan. 29, 2020 has been set. The Parties believe that in the next 120 days, they can: (1) exchange the necessary discovery and information necessary to constructively participate in mediation, (2) conduct the mediation, and (3) negotiate the specific terms and details of a settlement, However, the Parties also agree that if they are simultaneously attempting to comply with Court deadlines and participate in motions practice, it would reduce their ability to constructively participate in mediation. On the basis of the foregoing, the Parties requested the Court, and Judge Martinez entered an Order staying the action for all purposes for a period of at least 120 days so that the Parties may conduct early settlement efforts. Within 120 days, the Parties will file a status report with the Court describing the status of the Parties' efforts to resolve the matter. A full-text copy of the Court's Nov. 13, 2019 Order is available at https://is.gd/WZO1yH from Leagle.com. Jikiri Bautista, an individual & Ari Silva, an individual, Plaintiffs, represented by Abel M. Tsegga -- abel@northshorelawgroup.com -- TG LAW GROUP, PLLC, Duncan Calvert Turner -- dturner@badgleymullins.com -- BADGLEY MULLINS TURNER PLLC & Mark A. Trivett -- mtrivett@badgleymullins.com -- BADGLEY MULLINS TURNER PLLC. WFS Express, a Delaware corporation & Consolidated Aviation Services, a New York corporation, Defendants, represented by Kathryn S. Rosen -- katierosen@dwt.com -- DAVIS WRIGHT TREMAINE, Paula L. Lehmann -- paulalehmann@dwt.com -- DAVIS WRIGHT TREMAINE & N. Joseph Wonderly -- joewonderly@dwt.com -- DAVIS WRIGHT TREMAINE. WILLIAMS COMPANIES: Fairchild Seeks Overtime Wages for Inspectors ----------------------------------------------------------------- CHARLES FAIRCHILD, individually and on behalf of all others similarly situated, Plaintiff v. THE WILLIAMS COMPANIES, INC. AND WILLIAMS ENERGY RESOURCES, LLC, Defendants, Case No. 2:19-cv-01465-JFC (W.D. Pa., Nov. 12, 2019), seeks to recover unpaid overtime wages and other damages under the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. Williams is an energy delivery company. Williams employs energy and inspector personnel to carry out its work. Mr. Fairchild worked for Williams from January 2019 until September 2019 as a utility inspector. He asserts that he and the other workers like him regularly worked for Williams in excess of 40 hours each week but they never received overtime for hours worked in excess of 40 hours in a single workweek. Instead of paying overtime as required by the FLSA and PMWA, Williams improperly classified Mr. Fairchild and those similarly situated workers as exempt employees and paid them a daily rate with no overtime compensation, the lawsuit says.[BN] The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. JOSEPHSON DUNLAP 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Telephone: 713-352-1100 Facsimile: 713-352-3300 E-mail: mjosephson@mybackwages.com adunlap@mybackwages.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: 713-877-8788 Facsimile: 713-877-8065 E-mail: rburch@brucknerburch.com - and - Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Ave. Pittsburgh, PA 15212 Telephone: (412) 766-1455 Facsimile: (412)766-0300 E-mail: josh@goodrichandgeist.com WORLD BANK: D.C. Court Dismisses Zhan Suit Without Prejudice ------------------------------------------------------------ In the case, RENJIE ZHAN, Plaintiff, v. WORLD BANK, Defendant, Case No. 19-cv-1973 (DLF) (D. D.C.), Judge Dabney L. Friedrich of the U.S. District Court for the District of Columbia granted World Bank's Motion to Dismiss for lack of subject-matter jurisdiction and for failure to state a claim. In the early 1990s, the World Bank helped the Chinese government fund construction of the Shuikou Hydroelectric Power Station. The project forced nearby villagers to resettle, and the Chinese government allegedly broke its promise to compensate those villagers. With the putative class action, Zhan sues the World Bank for its role in the project. The World Bank, which comprises two separate institutions, the International Development Association and the International Bank for Reconstruction and Development, is an international financial institution charged with assisting the development of its member nation's territories, promoting and supplementing private foreign investment, and promoting long range balanced growth in international trade. As for the World Bank's role, Zhan alleges that the Bank was supposed to keep a "close watch" on the resettlement process but instead turned a blind eye to the behavior of government officials and to the difficulty of the migrants on the ground in the Submersion District. And because of the Bank's "protection," government corruption continues to stymie the resettled villagers from receiving compensation for their lost property. Zhan, proceeding pro se, purports to represent 252 Xiadun villagers who did not receive any compensation for their lost land or houses. Zhan filed the Complaint on July 2, 2019, seeking $12,332,500 to compensate for the villagers' lost homes, another $2,520,00 to cover damages and other costs incurred by the Plaintiffs as a result of the incident, and all costs related to the lawsuit. The World Bank moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Judge Friedrich holds that because of two Executive Orders, the World Bank's two constituent intuitions are public international organizations entitled to the privileges, exemptions, and immunities conferred by the International Organizations Immunities Act ("IOIA"). The IOIA provides that such organizations shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments. The immunity has two main exceptions. First, the IOIA limits the immunity to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract. And second, the Supreme Court held recently that the IOIA's reference to "same immunity" means the same immunity that foreign governments enjoy at any given time, not the immunity they enjoyed when Congress passed the IOIA. Today, that means that the Foreign Sovereign Immunities Act ("FSIA") -- which did not exist when Congress enacted the IOIA -- governs the immunity of international organizations. The World Bank is thus immune from suit unless an FSIA exception applies or the Bank expressly waived its immunity under the IOIA. The Judge finds that neither is present in the case. First, no FSIA exception applies. It is the Plaintiff's burden to establish subject-matter jurisdiction, yet Zhan does not identify a relevant FSIA exception. Second, the World Bank has not expressly waived its immunity. Once again, Zhan does not argue as much. And that argument would fail regardless. The World Bank has indeed waived certain immunity through its Articles of Agreements. A suit like the instant one would hinder the Bank, not help it. As the Bank correctly warns, exposure to liability for decades-old loans where the Plaintiffs have been allegedly injured by the borrower -- and not the actions of the World Bank -- would severely interfere with and hamper the Bank's operations. Such exposure would also make certain loans riskier than they would otherwise be, reducing the Bank's financial capacity and willingness to lend. And even if the Bank could conceivably benefit from waiving immunity here, any limited benefit would be substantially outweighed by the burdens caused by judicial scrutiny of the Bank's discretion to select and administer programs. This clear lack of benefit -- indeed, disadvantage -- of a waiver of immunity compels the conclusion that Section 3 of the agreement should not be construed to waive the Bank's immunity in the case. For these reasons, Judge Friedrich granted the World Bank's motion to dismiss, and dismissed the case without prejudice. A separate order accompanied the Memorandum Opinion. A full-text copy of the Court's Nov. 20, 2019 Memorandum Opinion is available at https://is.gd/RHoWXQ from Leagle.com. RENJIE ZHAN, Representative of 252 Villagers at Xiadun Village, Xibin Township, Plaintiff, pro se. WORLD BANK, Defendant, represented by Jeffrey T. Green -- JGREEN@SIDLEY.COM -- SIDLEY AUSTIN LLP & Matthew J. Letten -- MLETTEN@SIDLEY.COM -- SIDLEY AUSTIN LLP. XPO LOGISTICS: Court Denies Class Certification Bid in "Alvarez" ---------------------------------------------------------------- In the class action lawsuit styled as Angel Omar Alvarez et al., the Plaintiffs, v. XPO Logistics Cartage, LLC et al., the Defendants, Case No. 2:18-cv-03736-SJO-E (C.D. Cal.) the Hon. Judge James Otero entered an order denying without prejudice the request of Angel Omar Alvarez, Alberto Rivera, Fernando Ramirez, Juan Romero, and Juan Paz to certify class. The Court said, "In addition to fulfilling the four prongs of [Fed.R.Civ.P.] Rule 23(a), the proposed class must also meet at least one of the three requirements listed in Rule 23(b). Alvarez Plaintiffs seek class certification under Rule 23(b)(3), which requires the Court to find 'that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.'" A court evaluating predominance and superiority must consider: (1) 'the class members' interests in individually controlling the prosecution or defense of separate actions;' (2) 'the extent and nature of any litigation concerning the controversy already begun by or against class members;' (3) 'the desirability or undesirability of concentrating the litigation of the claims in the particular forum;' and (4) 'the likely difficulties in managing a class action.'" Because the Court finds the Alvarez Plaintiffs have not satisfied the requirements of Rule 23(a), the Court declines to analyze Rule 23(b) at this time. The putative class action centers on allegations that Defendants deliberately misclassified their truck drivers as independent contractors, denying them protections under California law to which they were entitled. Alvarez Plaintiffs seek to recover unpaid wages owed by Defendants, all expenses unlawfully deducted by Defendants, and to collect all applicable statutory penalties. Alvarez Plaintiffs also seek to collect civil penalties for Labor Code violations. XPO Logistics is a global logistics provider of cutting-edge supply chain solutions to the most successful companies in the world.[CC] YOUNG LIVING: Penhall Files Fraud Class Suit in S.D. Ca. -------------------------------------------------------- A class action lawsuit has been filed against Young Living Essential Oils, LC. The case is styled as Lindsay Penhall, on behalf of herself and a class of all others similarly situated, Plaintiff v. Young Living Essential Oils, LC, Defendant, Case No. 3:19-cv-02340-JLS-RBB (S.D. Cal., Dec. 6, 2019). The nature of suit is stated as Other Fraud. Young Living is a multi-level marketing company based in Lehi, Utah that sells essential oils and other related products.[BN] The Plaintiff is represented by: Christopher Decker Moon, Esq. Moon Law APC 600 West Broadway, Suite 700 San Diego, CA 92101 Phone: (619) 915-9432 Email: chris@moonlawapc.com [*] Cybersecurity Class Actions in Canada on the Rise ----------------------------------------------------- Nicole Henderson, Esq. -- nicole.henderson@blakes.com -- and Darren Reed, Esq. -- darren.reed@blakes.com -- of Blake, Cassels & Graydon LLP, in an article for JDSupra, report that cybersecurity litigation in Canada is on the rise. Given that the number of data breaches in Canada has been rising exponentially in recent years, the increase in cybersecurity litigation is unsurprising. However, the increase in the volume of breaches, coupled with privacy legislation changes, has resulted in more reporting to the privacy commissioners, attempted class proceedings, and settlements of actions. PRIVACY COMMISSIONER INVESTIGATIONS AND CIVIL LITIGATION An organization that has experienced a privacy breach or cybersecurity incident may be subject to mandatory reporting and resulting investigations by the federal or provincial privacy commissioner. Procedural protection for the organization in the course of such an investigation is often limited. Further, in some cases, there is no (or only very limited) legal recourse to challenge unfair or erroneous findings made in a privacy commissioner report. Plaintiffs in privacy class actions often seek to rely on privacy commissioner reports to the extent they are critical of the security safeguards an organization had in effect at the time of a breach. In two recent decisions in Ontario, however, certification judges affirmed that such reports are not determinative of civil liability or even whether a proposed class action should be certified. In Broutzas v. Rouge Valley Health System, the plaintiffs sought a ruling that the hospital defendant was barred from challenging the findings of the Ontario Information and Privacy Commissioner (IPC) following its investigation of the privacy breaches at issue in the action, and that these findings were conclusive of the hospital's liability. The court declined to make such a ruling, finding that it would be "egregiously unfair" to determine a class action based on the decision of an informal proceeding before an administrative tribunal. Similarly, in Kaplan v. Casino Rama Services Inc., the certification judge confirmed that an IPC investigation report regarding the cyberattack on Casino Rama was "not determinative of legal liability." The judge went on to conduct his own analysis based on the evidence before him on the motion. RECENT DENIALS OF CERTIFICATION IN PRIVACY CLASS ACTIONS There have been an increasing number of privacy class actions in Canada since 2012, when the Ontario Court of Appeal first recognized the new privacy tort of intrusion upon seclusion. While many privacy class actions have been certified, the last year has seen several denials of certification: Broutzas v. Rouge Valley Health System: The Ontario Superior Court of Justice refused to certify a privacy class action in which rogue hospital employees allegedly accessed patient records to sell new mothers' contact information as RESP sales leads. Among other things, the court found that a person's contact information is not "inherently private" and that the tort of intrusion upon seclusion requires some deliberate intrusion by the defendants and could not be made out by some form of "guilt by association." Kaplan v. Casino Rama Services Inc.: The Ontario Superior Court of Justice refused to certify this class action brought following a criminal cyberattack on Casino Rama's networks. The certification judge found that while some of the plaintiffs' claims could survive a motion to strike, the proposed class "collapse[d] in its entirety" because there were no common issues among the class. The court also noted the defendants' prompt and comprehensive response following the discovery of the cyberattack. For further information, please see our May 2019 Blakes Bulletin: Proposed Privacy Class Action "Collapses in its Entirety" on Commonality. Bourbonniere c. Yahoo! Inc.: The Quebec Superior Court refused authorization of this case, which arose out of cyberattacks against Yahoo and theft of user account data. The court found that the authorization criteria were not met because there was no evidence that anyone, including the proposed representative plaintiffs, had suffered any compensable loss as a result of the cyberattacks. As such, there was no "arguable case" with respect to the plaintiffs' claims. Li c. Equifax Inc.: The Quebec Superior Court refused authorization of this case, arising out of the Equifax data breach announced in September 2017. Similar to the reasoning in Bourbonniere, the court concluded that the proposed representative plaintiff did not have an arguable case because he did not show that he had experienced any compensable damages as a result of the breach. While we expect privacy class actions to remain commonplace in Canada for the foreseeable future, these cases suggest that courts are increasingly willing to scrutinize plaintiffs' claims to assess whether they are viable and whether a class action is the appropriate vehicle for their resolution. SETTLEMENT TRENDS IN PRIVACY CLASS ACTIONS To date, no privacy class action in Canada has proceeded to a determination on the merits. In the meantime, there have been several settlements, although it will remain to be seen what impact the cases referred to in this bulletin have on that trend. While most settlements in privacy class actions to date have represented fairly low values per class member, there have been a few settlements involving more significant payments in cases where the information involved was highly sensitive and the defendant's intrusion was deliberate. Settlement structures reflect the bespoke nature of civil privacy suits and the difficulty in assessing the losses (if any) of potential class members. Common characteristics of privacy class action settlements include: -- Compensation for losses in the case of fraud or identity theft resulting from the breach -- Cash payments for other proven out-of-pocket losses (e.g., steps taken to remediate the risk of fraud, lost time) -- Amounts for continuing credit monitoring -- Notice and administration costs -- Honoraria for representative plaintiffs -- Counsel fees. CONCLUSION Cybersecurity incidents are an ever-increasing threat for organizations of all sizes, and with it comes the threat of privacy litigation. The class actions landscape in this area is still evolving. Encouragingly, Canadian courts are turning a careful eye to these claims and scrutinizing their viability. [GN] [*] ERGs May Raise Workplace Discrimination Concerns ---------------------------------------------------- Mishell Parreno Taylor, Esq. -- mtaylor@littler.com -- of Littler Mendelson, in an article for Mondaq, reports that affinity groups, also known as employee resource groups (ERGs), bring together employees with similar backgrounds or interests and can have a powerful influence in the workplace. Employers that have, or are exploring establishing, affinity groups, though, must consider several legal and practical issues. ERGs are employer-recognized groups that can promote a company's diversity and inclusion efforts and allow for networking, mentorships, and other opportunities for professional and personal development. Historically, affinity groups were centered on race or gender, but these groups are increasingly being created for those sharing other characteristics, such as age, veteran status or sexual identity. From a legal standpoint, ERGs raise two common issues: the use of social media and discrimination concerns. Use of Social Media The first issue may arise when employers offer communication options such as messaging services, social media spaces or intranet platforms where employees can engage in ERG discussions. These forums provide accessible communication for members, which is especially beneficial for staff spread across locations or working remotely. Yet these forms of communication can cause problems if employees act inappropriately, perhaps by posting negative comments or sharing others' posts without permission. It can be difficult to assess what is inappropriate conduct and what behavior an employer may regulate. Employers that host these types of forums must bear in mind that Section 7 of the National Labor Relations Act, which applies to unionized and nonunionized nonsupervisory employees in the private sector, entitles workers to engage in concerted activity for their mutual aid or protection. The National Labor Relations Board has held that employees communicating via company e-mail or on social media may be covered by Section 7's protections. Employers should be mindful about restricting or removing employee communications or disciplining employees based on their posts. If an employee posts a disparaging comment about the employer and the employer deletes the post, employees may claim that the company censored their protected Section 7 communications. Employers may maintain a policy to remove posts or limit communications that are obscene, violent, defamatory or harassing of a protected category of worker. Discrimination Concerns ERGs can, at times, create friction in the workplace. Employees who do not feel welcome to join an affinity group or to attend its events may feel excluded -- or even threatened -- by this employer-backed organization. Communication is key. Employers with ERGs should be sensitive and responsive to these concerns to ensure that all employees feel heard and that anti-discrimination laws are followed. Title VII of the Civil Rights Act of 1964, for example, prohibits discrimination on the basis of sex, race, religion and national origin. Some employers have faced class-action civil rights lawsuits filed by white male employees alleging that they were fired -- or suffered some other adverse action -- because of their gender and race. Some plaintiffs in such lawsuits have pointed to corporate diversity initiatives, like ERGs, as evidence of the discrimination they purportedly faced at the office. Although reverse discrimination claims are relatively rare and largely unsuccessful, employers should exercise forethought when implementing diversity initiatives. Recommended Steps Employers can take several steps to support diversity initiatives and limit risk. At the outset, affinity groups should be carefully structured to encourage sharing and mentorship without devolving into platforms for negativity. Some employers have found that an application process and charter requirement for ERGs clarifies the purpose of the group and helps participants focus on clear goals. Employers may also want to provide tasks for affinity groups to tackle, like identifying ways to improve the workplace. Keep in mind that any limits on ERG creation must be applied to all groups in a category. For example, a ban on religious groups must apply to all groups with religious leanings. In addition, management should hold some sort of leadership position on affinity groups. A management representative, for example, may serve as a sponsor or liaison between group members and company leaders. The liaison can help steer discussions toward stated goals and business initiatives rather than allowing the group to focus on complaints. Management can also build a healthy foundation for ERGs by providing anti-discrimination training, including implicit bias training, for all staff. This training can educate employees about the benefits of diversity and about everyone's role in counteracting their own biases. Benefits of Affinity Groups While ERGs require planning and ongoing participation, employers find that the benefits are well worth the effort. Affinity groups can help employers attract more diverse candidates, reduce turnover and increase employee morale. Moreover, multiple studies have found that companies are likely to have above-average financial returns if they fall among the top quartile of their peers for diversity by race, ethnicity and gender. In short, affinity groups, managed wisely, can serve to attract and retain top talent, increase the bottom line, and build a healthy and thriving workplace culture. [GN] [*] Firm Sees Dramatic Rise in N.Y. Website Accessibility Suits --------------------------------------------------------------- Siobhan Neela-Stock, writing for Mashable, reports that it may seem that people with disabilities have made a lot of progress accessing the same resources as people without disabilities. But there's always more ground to cover. Right now there's an important battle playing out online and in the courts IRL, where many businesses are questioning whether they have to make their websites and mobile apps accessible -- and disabilities rights advocates are vehemently insisting they do. Recently, the Supreme Court passed on reviewing a case from Domino's, in which the pizza chain argued that the Americans with Disabilities Act, which protects individuals with disabilities against discrimination, doesn't apply to online spaces. This all started back in 2016 when a blind man, Guillermo Robles, sued Domino's when he couldn't order food on their website and mobile app using a screen reader, an assistive device that helps people who are blind read text online. Domino's site, Robles alleged, was incompatible with the device. The ADA's Title III is a federal civil rights law; it says that public accommodations (businesses in most cases) are required to provide effective communication with the people it serves. Effective communication isn't happening, some disabilities rights advocates argue, when someone who is blind is blocked from a business' services because they can't use its website and mobile app. The problem -- or the loophole for the businesses trying to fight it -- is one about the law's vagueness. "There's no direct mandate in the ADA or its regulations that says, 'you must make your website accessible and here is what an accessible website is,'" Minh Vu, a partner with Seyfarth Shaw who defends businesses against ADA Title III lawsuits, says. In fact, Domino's referenced Title III when they approached the Supreme Court with their case, questioning whether it requires businesses' websites and mobile apps to comply with the ADA's accessibility requirements for people with disabilities. But Christina Brandt-Young, managing attorney with the nonprofit Disability Rights Advocates (DRA), which represents people with disabilities both in class-action lawsuits and systemic litigation, thinks otherwise. "Companies are fighting this [ADA's Title III], not because they think the law isn't clear but just because they don't want to comply with it," she says, adding that the ADA was crafted to be open enough to include websites and apps. "The point of a law is to draft it flexibly so that it can apply to every situation you need it to, and there's no question that the drafters intended the ADA to apply to communication," says Brandt-Young. Currently, there aren't any explicit federal regulations mandating businesses to make their websites and mobile apps accessible. But the fact that the Supreme Court declined to hear the case means the lower court's decision -- which stated that customers should be able to access Domino's website and app -- remains in place. While disability rights advocates applauded this decision, saying the ADA was written to be interpreted in this manner, Domino's wasn't so happy. "Creating a nation-wide standard will eliminate the tsunami of website accessibility litigation that has been filed by plaintiffs' lawyers exploiting the absence of a standard for their own benefit, and chart a common path for both businesses and non-profit institutions to follow in meeting the accessibility needs of the disabled community," Domino's said in an online statement. A barrage of lawsuits Domino's isn't the only company grappling with these questions. The number of federal website accessibility lawsuits went from 814 in 2017 to at least 2,258 in 2018, according to the law firm Seyfarth Shaw, which has a team dedicated to defending businesses against ADA Title III lawsuits. The firm witnessed a dramatic increase in New York federal website accessibility lawsuits after New York federal judges allowed website accessibility cases to be presented during pre-trial fact-finding and presenting process, known as discovery, in lawsuits against the businesses Five Guys and Blick Art, Seyfarth Shaw's website says. Like the Domino's case, people who are blind accused Five Guys' and Blick's of having inaccessible websites. "It's really quite, in my view, unfair for businesses to be hit with all these lawsuits when nobody told them, 'Yes, your website has to be accessible and here are the standards for what an accessible website is,' " says Vu. Why is this so confusing? Some people, like Vu, think the confusion with the ADA lies in the fact that the law was passed in 1990, when the World Wide Web was only about a year old. That means there's no specific language in the ADA about website and app accessibility. However, Brandt-Young isn't confused. "The text of the ADA Title III is broad and flexible . . . if you offer a service like a website to your customers, you have to offer it to all your customers," Brandt-Young wrote in an email. But Sharron Rush, executive director of the nonprofit Knowbility, which works to improve technology access for people with disabilities globally, thinks the question about whether businesses have to make their technology accessible is moot. "We have to create accessible technology because of the way our entire society is now centered around [technology and the web]," Rush says. Brandt-Young says businesses can look to the first web content accessibility guidelines (WCAG) issued in 1999 and updated in 2018. These state that accessible websites should have assistive-technology friendly text alternatives -- which substitute graphics such as pictures and charts with text so people who are blind can understand the information -- video captions, and sign language for prerecorded audio. These standards were published by the World Wide Web Consortium (W3C), the organization that sets the international standards for the internet. The 2018 WCAG guidelines include a long list of accessible features businesses can incorporate into their online technologies so people with disabilities can access them. These are widely accepted international standards for what a website has to do to be accessible, says Kenneth Shiotani, senior staff attorney at the National Disability Rights Network, a disability legal advocacy organization set up by Congress. While Vu also advises her clients to use the WCAG if they want to make their websites and apps accessible, she does explain that businesses aren't legally obligated to follow these guidelines. She also feels it's not an easy standard to meet because it's filled with technical language. How businesses can help Both Rush and Vu have suggestions for how businesses can make their websites and apps accessible. All websites and apps should have keyboard access so people do not have to rely on mouses to navigate, Rush says. Businesses need to pay attention to color contrast, too. For example, pale gray letters on a white background are hard to read, Rush says. Vu says videos should have both closed captioning and audio descriptions. For websites, Vu recommends that companies prioritize the most visited parts of their websites by making them accessible to screen reader users. The need for standards The Department of Justice has never included the WCAG in its Title III regulations. But they are tasked with writing regulations for implementing Title III, which businesses have to follow to make sure they aren't discriminating against people with disabilities. The DOJ can file "lawsuits in federal court to enforce the ADA." In 2010, the DOJ considered creating website accessibility rules but reneged in 2017. "It would have been simpler if DOJ had said, 'OK, look WCAG is the standard," Vu says. Vu worked for the DOJ from 2001 to 2003, overseeing enforcement of the ADA. As to why the DOJ has never adopted any ADA Title III web accessibility standards, Vu says she doesn't know. But she's heard a rumor. During the Obama presidency, Vu says she heard talk that there was pressure on the DOJ from Silicon Valley not to adopt web accessibility standards. If true, Vu thinks this is because this would limit the software tech companies could release. True or not, businesses don't have to wait for the DOJ to do something. "What the courts have essentially said is there's no need to wait for DOJ standards in terms of the full and equal access to technology, including websites . . . [however], it would be great if the DOJ would issue standards," Seaborn says. Fixes could be costly, but inaction costs more For businesses that want to make their websites accessible for people with disabilities, it can cost hundreds of thousands of dollars to potentially millions of dollars, Vu says. If that range seems high to you, you're not the only one. It can cost thousands of dollars for businesses to make their websites accessible, Dmitri Belser, executive director of the Center for Accessible Technology (CforAT), a nonprofit that consults with businesses on accessible web design, wrote in an email. But Belser says, of the businesses CforAT has worked with -- including nonprofits, small businesses, and larger companies like Macy's and JCPenney -- no one has ever spent a million doing this. It's usually about $5,000 to $15,000. At the end of the day, businesses will save money if they include accessibility in the website on day one, Belser wrote in an email. Putting aside disputes about the specific price tag, businesses need to update their websites constantly, so the cost is ongoing, Vu says. "I'm not saying this is why we shouldn't be doing it, I understand that accessibility means there is going to be an additional cost for every business on a permanent basis," Vu says. "Until the language of accessibility becomes the standard for every website developer out there, it's going to cost a lot more money." Rush, for her part, disagrees, pointing to the W3C's "Business Case for Accessible Design" report, which she edited. It looks at the benefits, both financial and otherwise, Fortune 100 companies have enjoyed when including accessible design in their technologies. The report found that inaction can actually cost more. Target learned this lesson when it shelled out millions of dollars in a settlement over claims that its website was inaccessible. After all that, Target still had to make its website accessible. Coincidentally, the DRA represented the plaintiffs. Despite the business consideration, "inclusion is where the future is going and so we need to incorporate those costs . . . to quibble about costs seems so anti-future," Rush says. The DRA, for its part, believes that improving website and app accessibility both increases revenue for businesses while also encouraging independence for people with disabilities. Nonetheless, DRA predicts the issue over website accessibility isn't going away and businesses will likely continue to be hit with website accessibility lawsuits. While the storm of litigation brews, businesses will either have to embrace the future of accessibility or fight it -- leaving out customers with disabilities in the process. [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. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000. *** End of Transmission ***