/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/200312.mbx C L A S S A C T I O N R E P O R T E R Thursday, March 12, 2020, Vol. 22, No. 52 Headlines 149 DELI CORP: Amaya Seeks Unpaid Overtime Wages, Missing Paystubs AAF PLAYERS: Bankr. Court Strikes Jury Demand in Schmidt Suit ACTAVIS PHARMA: Brzozowski Sues over Contaminated Metformin Drug ADDUS HEALTHCARE: Court Dismisses Encinias From Moore Labor Suit AMC ENTERTAINMENT: Court Enters Protective Order in Securities Suit ARTIFICIAL GRASS: Class Claims in Bacon Dismissed Without Prejudice ASHBRITT INC: Court Dismisses RICO Claims in Mason Suit AT&T SERVICES: Dist. Ct. Judgment in Gadehak TCPA Suit Affirmed BANK OF AMERICA: Net Settlement Fund Distribution in AEPF Suit OK'd BAUSCH HEALTH CO: MSP Recovery Sues Over Diabetes Drug Monopoly BIMBO BAKERIES: Court Dismisses Peatry's Post-May 8, 2018 Claims BRUNEL RESOURCES: Shortchanges Workers' Overtime Pay, Jonson Claims CAREMARK PHC: BPP Junk Fax Row Removed to E.D. Mo. CITY NATIONAL BANK: Bid to Dismiss Noe Suit Over NSF Fee Denied CREDIT CONTROL: Court Denies Bid to Dismiss Cartmell FDCPA Suit DAWN FOOD: Howell et al Sue over Collection of Biometric Data DELAWARE: District Court Dismisses Abdul-Akbar Civil Rights Suit DEUTSCHE BANK: Settlement in Securities Suit Gets Initial Approval DEVA CONCEPTS: Sells Fraudulent No-Poo Cosmetic, Calabrese Alleges DIRECTV LLC: 11th Cir. Flips Denial of Arbitration Bid in Cordoba EDDIE BAUER: Settlement in Veridian Suit Has Final Approval ENERGY TRANSFER: Institutional Investor Group Named Lead Plaintiff ERMINIA RESTAURANT: Barcenas Sues over Tip Pooling GEICO: Underpays Vehicle Insurance Claims, Angell et al. Allege GERON CORP: Misleads Investors on IMbark Test Result, Pfeifer Says GLOBAL CREDIT: Arbitration Compelled in Castle FDCA Suit HANNA ANDERSSON: Barnes Sues Over Data Breach IDAHO: Court to Hear Bid to Enforce K.W. Settlement on March 19 ILLINOIS: Bid to Sanction Dr. Newbold & Counsel in Winger Denied INNOVACARE HEALTH: Minority Stockholders Sue D&Os over Summit Deal INTELENET AMERICA: Class of CSRs in Clark Conditionally Certified JOHN C. HEATH: Trim and Frey Sue over Unsolicited Telephone Calls JOHN L. SULLIVAN: Arbitration Bid Denial in Gotts Labor Suit Upheld KAISER FOUNDATION: Cal. App. Affirms Andino Class Decertification KARPENISI DO-NUT SHOP: Atemis and Zavala Sue over Unpaid OT Wages L'OREAL USA: Prelim Approval of Settlement in Conti Suit Denied LAWRENCE EQUIPMENT: Arbitration Award Ruling in Rodriguez Upheld LEGEND ENERGY: Baswell Seeks Unpaid Back Wages and OT Pay LEGENDS HOSPITALITY: Contreras Seeks to Recover Withheld Gratuities LOT 74 REALTY: Overcharges Tenants, Martinez and Canela Claim MARY JANE ELLIOTT: Sixth Cir. Flips Dismissal of Vanderkodde Suit MAXIM HEALTHCARE: 10th Circuit Flips Final Judgment in Jordan Suit MDL 2047: Taishan Settlement in Drywall Suit Has Final Approval MDL 2420: Class Notice on Settlement in Antitrust Suit Directed METALS USA: Filing of Bid for Final Nod of Wilson Deal Due March 27 MONTGOMERY COUNTY, NY: Motions in Limine in Hill Suit Partly Okayed PERSONALIZATIONMALL: Barnes Sues over Collection of Biometrics PILOT TRAVEL: Discovery & Entry of Sched Order in Drasal Stayed POLARIS INDUSTRIES: Court Narrows Claims in Products Liability Suit PORSCHE FIN'L: Partial Summ. Judgment Bid in Cox Granted in Part PPDAI GROUP: Court Narrows Claims in Securities Suit PRET A MANGER: Bid to Dismiss Cunningham Suit Over Fraud Denied PSC INC: $1.52MM Settlement in Miller Suit Gets Final Approval PTAG INC: Cotton Labor Suit Seeks Unpaid Overtime Wages RIPPLE LABS: Court Narrows Claims in Zakinov Securities Suit ROBINHOOD FINANCIAL: Court Dismisses Gordon Suit Without Prejudice SAGINAW COUNTY, MI: Court Stays Fox Suit Pending Decision in Freed SALT RIVER: Court Narrows Claims in Ellis Antitrust Suit SANGAM INC: Andrade Sues Over Illegal SMS Ad Blasts SAXE MANAGEMENT: Settlement in Bauman Suit Gets Prelim Approval SEI INVESTMENTS: $6.8MM Stevens ERISA Suit Deal Gets Final Approval SPECTRUM PHARMACEUTICALS: Securities Suit Deal Has Prelim. Approval SPRINT COMMUNICATIONS: Summary Judgment Bid in Gorss Partly Granted STARBUCKS CORP: Adams Hits Coffee Dilution on Large Size Servings STATE FARM MUTUAL: Clemons Sues Over Illegal Telemarketing Calls TELEFONAKTIEBOLAGET LM: Second Amended Securities Suit Dismissed TRADESMEN INTERNATIONAL: Class Claims Stricken in Glass Suit TRANSCARE CORP: Partial Summary Judgment Granted in Ien's Suit TRANSDIGM GROUP: Ohio Northern District Dismisses Securities Suit TREEHOUSE FOODS: Court Certifies Class in MSPERS Suit UNITED STATES: Ct. says CBP Can't Hold Detainees More than 48 Hrs. WELLS FARGO: Claims in Purple Mountain Securities Suit Narrowed ********* 149 DELI CORP: Amaya Seeks Unpaid Overtime Wages, Missing Paystubs ------------------------------------------------------------------ Elmer Amaya, individually and on behalf of all others similarly situated, Plaintiffs, v. 149 Deli Corp., 543 Deli Corp., Amin Abas, Abdo M. Ali and Fares Hamad Ali, as individuals, Defendants, Case No. 20-cv-00954, (S.D. N.Y., February 4, 2020), seeks to recover damages for violations of New York State labor laws and the Fair Labor Standards Act, compensatory and liquidated damages, interest, attorneys' fees, costs and all other legal and equitable remedies. Defendants operate several delis in the Bronx where Amaya worked as a deli worker from November 2016 to November 2019. He claims to have worked in excess of 40 hours per day without overtime premium, and that Defendants failed to provide accurate wage statements. [BN] Plaintiff is represented by: Roman Avshalumov, Esq. HELEN F. DALTON & ASSOCIATES, PC 69-12 Austin Street Forest Hills, NY 11375 Telephone: (718) 263-9591 Fax: (718) 263-9598 Email: HFDalton6912@Gmail.com AAF PLAYERS: Bankr. Court Strikes Jury Demand in Schmidt Suit ------------------------------------------------------------- Judge Craig Gargotta of the U.S. Bankruptcy Court for the Western District of Texas, San Antonio Division, struck the Plaintiffs' Jury Demand in the case, In re LEGENDARY FIELD EXHIBITIONS, LLC and EBERSOL SPORTS MEDIA GROUP, INC., Chapter 7, Debtors. COLTON SCHMIDT ET AL., Plaintiffs, v. AAF PLAYERS, LLC ET AL., Defendants, Case No. 19-50900-cag, Adversary No. 19-05053-cag (W.D. Tex.). On April 17, 2019, co-Defendants AAF Players, LLC; AAF Properties, LLC; Legendary Field Exhibitions, LLC; and Ebersol Sports Media Group, Inc. each filed a chapter 7 bankruptcy case in the Court. After a hearing on July 3, 2019, the cases of all of the AAF Defendants were substantively consolidated into one lead case numbered 19-50900-cag (Case No. 19-50900, ECF No. 150) ("Lead Case"). Before the Chapter 7 filing, on April 10, 2019, Plaintiffs Colton Schmidt and Reggie Northrup filed their Class Action Complaint for Damages ("Original Complaint") against AAF Defendants, Thomas Dundon, and Charles Ebersol in the Superior Court of the State of California, County of San Francisco. Counts in the Original Complaint included the following causes of action against AAF Defendants: breach of contract, breach of implied covenant of good faith and fair dealing, promissory estoppel, failure to pay wages in violation of California Labor Code Section 201, violation of the California Business and Professions Code Section 17200, fraud, false promise, and inducing breach of contract. The Original Complaint also included a demand for jury trial. On June 24, 2019, the Plaintiffs' lawsuit was removed to the U.S. District Court for the Northern District of California. The case was then transferred to the U.S. District Court for the Western District of Texas on Sept. 9, 2019. On Sept. 23, 2019, the Texas Western District Court issued an Order of Referral that referred the Plaintiffs' lawsuit to the Texas Bankruptcy Court. Upon transfer of the case, the Texas District Court transmitted the Original Complaint to the Texas Bankruptcy Court. While the lawsuit was pending in the Texas District Court, the Plaintiffs filed Proof of Claim No. 214 on July 15, 2019, and Amended Proof of Claim No. 214 on July 16, 2019 ("Claim") in the Lead Case. The Claim was for $673,920,000 on the basis of "services performed and U.S. District Case No. 19-CV-03666-JCS." The Claim contained an addendum, which provided that the Plaintiffs' claim against the Debtors arises from a civil action that was filed in the San Francisco County Superior Court against the AAF Defendants. The Claim includes as attachments a copy of the Original Complaint and a copy of the standard form contract between the Plaintiffs and the AAF Players. It also states, in relevant part, that filing of the proof of claim is not and will not be deemed or construed as a waiver or release of the Plaintiffs' rights to a trial by jury. Before the Bankruptcy Court is the Plaintiffs' Jury Demand, which was proceeded by the Plaintiffs' Amended Jury Demand. In compliance with L. Rule 9015, the Plaintiffs filed their Amended Statement Regarding Consent. The Bankruptcy Court also considered Defendant Dundon's Notice of Consent, his Response Regarding Consent, the Plaintiffs' Reply in Support of Plaintiffs' Amended Statement Regarding Consent, the Trustee's Response Regarding Consent, and Defendant Ebersol's Response Regarding Consent. The Bankruptcy Court held a hearing on the Jury Demand on Dec. 4, 2019. As a preliminary matter, the Bankruptcy Court has jurisdiction over this proceeding pursuant to 28 U.S.C. Section 1334(b) and 28 U.S.C. Section 157(e). The parties disagree over whether the proceeding is a core proceeding under 28 U.S.C. Section 157(b). All of the parties have not consented to the bankruptcy court entering final orders under 28 U.S.C. Section 157(c)(2). Judge Gargotta appreciates that the Plaintiffs filed their Claim before the case was transferred to the Bankruptcy Court by the Texas District Court. Judge Gargotta also appreciates the Hobson's Choice, which is that the Plaintiffs were forced to file a proof of claim and lose their right to a jury trial in the adversary proceeding, or forgo filing a proof of claim but risk the loss of their right to participate in distribution of the bankruptcy estate. Judge Gargotta notes, however, that the Plaintiffs should have appreciated the possibility of their case being transferred to the Bankruptcy Court before deciding to file a proof of claim. Ultimately, the Plaintiffs lost their right to a jury trial in the Bankruptcy Court as a result of their own action-filing a proof of claim. By making a conscious decision to seek affirmative relief from the Bankruptcy Court by filing a proof of claim, the Plaintiffs' Claim implicates the claim allowance process and could impact distribution of assets of the estate. Because it is clear that a creditor who submits a proof of claim against the bankruptcy estate has no right to a jury trial on issues raised in defense of such claim, Judge Gargotta struck the Plaintiffs' Jury Demand, as filed in the Bankruptcy Court. A full-text copy of Judge Gargotta's Jan. 10, 2020 Order is available at https://is.gd/ArJ20F from Leagle.com. Colton Schmidt & Reggie Northrup, Plaintiffs, represented by Katharine Battaia Clark, Hedrick Kring, PLLC, Jonathon S. Farahi -- JFarahi@actslaw.com -- Abir Cohen Treyzon Sala, LLP & Boris Treyzon -- btreyzon@actslaw.com -- Abir Cohen Treyzon Salo LLP. AAF Players, LLC, Defendant, pro se. Thomas G. Dundon, Defendant, represented by Jason I. Bluver -- jib@paynefears.com -- Payne & Fears LLP, Brent Douglas Hockaday -- bhockaday@bellnunnally.com -- Bell Nunnally Martin LLP, Jeffrey Scott Lowenstein -- jlowenstein@bellnunnally.com -- Bell Nunnally & Martin, Leila Narvid, Payne & Fears LLP & Brent A. Turman -- bturman@bellnunnally.com -- Bell Nunnally & Martin. Charles Ebersol, Defendant, represented by William N. Radford, Thompson, Coe, Cousins & Irons, L.L.P. & Natalie F. Wilson, Langley & Banack, Inc. Legendary Field Exhibitions, LLC, Defendant, pro se. AAF Properties, LLC, Defendant, pro se. Ebersol Sports Media Group, Inc., Defendant, pro se. Randolph N. Osherow, in his capacity as Chapter 7 Trustee, Trustee, represented by Brian S. Engel, Barrett Daffin Frappier Turner & Engel. ACTAVIS PHARMA: Brzozowski Sues over Contaminated Metformin Drug ---------------------------------------------------------------- The case, JOSEPH BRZOZOWSKI, individually and on behalf of all others similarly situated, Plaintiff v. ACTAVIS PHARMA, INC.; ACTAVIS, LLC, TEVA PHARMACEUTICALS USA, INC.; TEVA PHARMACEUTICAL INDUSTRIES, LTD.; CVS HEALTH CORPORATION; and JOHN DOES 1-100, Defendants, Case No. 2:20-cv-02324-MCA-MAH (D.N.J., March 3, 2020) alleges that Defendants violated the current Good Manufacturing Practices (cGMPs) of 21 U.S.C. Sec. 351(a)(2)(B) by contaminating its generic Metformin with an IARC- and EPA-listed probable human carcinogen known as N-nitrosodimethylamine. Metformin is an oral antihyperglycemic drug used as a first-line therapy in the treatment and management of type 2 diabetes, often referred to as the "gold standard" of diabetes management because it is well-tolerated and cost-effective, and has been generic for decades. Under federal law, pharmaceutical drugs must be manufactured in accordance with cGMPs to assure they meet safety, quality, purity, and strength standards. Otherwise, it is deemed "adulterated" and may not be distributed or sold in the U.S. Plaintiff asserts that he and other metformin consumers have been deceived by Defendants about the impurities with their products by expressly and impliedly warranted to them that their generic Metformin products were the same as branded metformin containing drugs, fit for their ordinary uses, and manufactured and distributed in accordance with applicable laws and regulations. By that means, the case also alleges Defendants for Breaches of Express Warranties and Implied Warranties of Merchantability and Fitness, violation of Magnuson-Moss Warranty Act and violations of numerous State Consumer Protection Laws for engaging in unfair competition or unfair or deceptive acts or practices. Defendants Actavis, LLC, Teva Pharmaceutical Industries Ltd., and Teva Pharmaceuticals USA, Inc. manufacture, sell, and distribute drugs such as metformin. CVS Health Corporation is a national retail pharmacy chain. [BN] The Plaintiff is represented by: Ruben Honik, Esq. David J. Stanoch, Esq. GOLOMB & HONIK, P.C. 1835 Market Street, Suite 2900 Philadelphia, PA 19103 Tel: 215-965-9177 Fax: 215-985-4169 Emails: rhonik@golombhonik.com dstanoch@golombhonik.com - and - Allan Kanner, Esq. Conlee S. Whiteley, Esq. Layne Hilton, Esq. Annemieke Tennis, Esq. KANNER & WHITELEY, LLC 701 Camp Street New Orleans, LA 70115 Tel: 504-524-5777 Fax: 504-524-5763 Emails: a.kanner@kanner-law.com c.whiteley@kanner-law.com l.hilton@kanner-law.com a.tennis@kanner-law.com - and - John R. Davis, Esq. SLACK DAVIS SANGER, LLP 6001 Bold Ruler Way, Suite 100 Austin, TX 78746 Tel: 512-795-8686 Fax: 512-795-8787 Emails: jdavis@slackdavis.com - and - Daniel A. Nigh, Esq. LEVIN, PAPANTONIO, THOMAS, MITCH RAFFERTY & PROCTOR, P.A. 316 S. Baylen Street, Suite 600 Pensacola, FL 32502 Tel: (850)435-7013 Fax: (850)436-6013 Email: dnigh@levinlaw.com ADDUS HEALTHCARE: Court Dismisses Encinias From Moore Labor Suit ---------------------------------------------------------------- In the case, MARY MOORE, et al., Plaintiffs, v. ADDUS HEALTHCARE, INC., et al., Defendants, Case No. 19-cv-01519-HSG (N.D. Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for the Northern District of California granted both (i) the Plaintiffs' counsel's motion to withdraw as attorney for Plaintiff Encinias, and (ii) the Defendant's motion to dismiss Plaintiff Encinias for failure to prosecute. On July 11, 2017, Plaintiff Mary Moore filed the putative class action in Alameda Superior Court. On March 21, 2019, an amended complaint was filed, which added Alexandria Encinias as a Plaintiff and Addus HomeCare, Inc. as a Defendant. The Plaintiffs' counsel, Tatiana G. Avakian of Marlin & Saltzman, LLP, first moved to withdraw as Plaintiff Encinias' attorney on Sept. 23, 2019, citing Plaintiff Encinias' failure to comply with her duties as a class representative and a break down in the attorney-client relationship. The Plaintiffs' counsel then withdrew the motion after Plaintiff Encinias contacted the counsel and assured the Plaintiff's counsel of her ability to continue prosecuting the action. Thereafter, however, the Plaintiffs' counsel renewed her motion to withdraw as Plaintiff Encinias' attorney on Oct. 29, 2019. The Counsel has made numerous attempts to contact Plaintiff Encinias over the course of the case. After a final attempt on Sept. 16, 2019, the counsel filed the initial motion to withdraw as counsel. Thereafter, the counsel again tried to contact Plaintiff Encinias on Oct. 7, 8, 10, and 14, 2019. Although the counsel heard from Plaintiff Encinias on Oct. 15, 2019, Plaintiff Encinias did not confirm attendance for the October 22 deposition and thereafter again failed to respond to the counsel. The counsel then renewed her motion to withdraw as counsel for Plaintiff Encinias arguing that Plaintiff Encinias' failure to communicate has created a conflict between the Plaintiffs' Counsel's duty to Ms. Encinias and the duty to the remaining class representative, Mary Moore, as well as putative class members. The Court set a hearing on the motion for Jan. 9, 2019, and directed the counsel to inform Plaintiff Encinias that she should appear at the hearing if she opposed counsel's motion to withdraw. The counsel confirmed at the hearing that she emailed Ms. Encinias the information. Because Plaintiff Encinias did not appear at the hearing, it is unclear to the Court whether she opposes the motion. Judge Gilliam finds that Civil Local Rule 11-5(a) is satisfied. The Plaintiff's counsel filed the instant motion over two months ago and gave Plaintiff Encinias advance notice of withdrawal weeks before by filing the previous withdrawal motion. Based upon the discussion at the hearing, the Court is persuaded that the Plaintiff's counsel filed the motion with a good faith belief that there is good cause for withdrawal. Accordingly, the Court finds in the exercise of his discretion that withdrawal is warranted. The Court granted the motion to withdraw as counsel. The Court finds that dismissal without prejudice is the less drastic alternative, and the appropriate sanction given the facts of the case. As previously noted, Plaintiff Moore remains a class representative in the action, and the Plaintiffs' counsel seeks to replace Plaintiff Encinias with another class representative to move the case forward as planned. Although the Court recognizes that Plaintiff Encinias' inaction has caused delay, the Defendant's general investment of resources in the litigation will not be rendered futile by dismissal of Plaintiff Encinias without prejudice, given the continuation of the litigation. Furthermore, allowing Plaintiff Encinias to become an absent class member should the class be certified would not be prejudicial to the Defendant. Because the majority of the factors weigh in favor of dismissal, the Court finds that dismissal without prejudice of Plaintiff Encinias for failure to prosecute is appropriate. Accordingly, Jude Gilliam granted the Plaintiff counsel's motion to withdraw as attorney. Further, the Court granted the Defendant's motion to dismiss Plaintiff Encinias from the action without prejudice for failure to prosecute under Rule 41(b). Plaintiff Encinias' former counsel is directed to forward the Order to her. A full-text copy of the District Court's Jan. 10, 2020 Order is available at https://is.gd/kjxtD5 from Leagle.com. Mary Moore, individually and on behalf of other members of the general public similarly situated & Alexandria Encinias, individually and on behalf of other members of the general public similarly situated, Plaintiffs, represented by Edwin Aiwazian -- edwin@lfjpc.com -- Lawyers for Justice, PC, Stanley Donald Saltzman -ssaltzman@marlinsaltzman.com -- Marlin & Saltzman, Tara Zabehi -- tara@lfjpc.com -- Lawyers for Justice, PC & Tatiana G. Avakian -- tavakian@marlinsaltzman.com -- Marlin Saltzman, LLP. Addus Healthcare, Inc., an unknown business entity & Addus HomeCare Corporation, an unknown business entity, Defendants, represented by Gary Matthew McLaughlin -- gmclaughlin@akingump.com -- Akin Gump Strauss Hauer & Feld, LLP, Gregory William Knopp -- gknopp@akingump.com -- Akin Gump Strauss Hauer & Feld LLP & Victor A. Salcedo -- vsalcedo@akingump.com -- Akin Gump Strauss Hauer Feld LLP. AMC ENTERTAINMENT: Court Enters Protective Order in Securities Suit ------------------------------------------------------------------- Judge Alison J. Nathan of the U.S. District Court for the Southern District of New York has entered a Stipulated Protective Order in the case, HAWAII STRUCTURAL IRONWORKERS PENSION TRUST FUND, et al., Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. AMC ENTERTAINMENT HOLDINGS, INC., ADAM M. ARON, CRAIG R. RAMSEY, CHRIS A. COX, LIN ZHANG, JACK Q. GAO, MAOJUN ZENG, ANTHONY J. SAICH, LLOYD HILL, GARY F. LOCKE, HOWARD W. KOCH, JR., KATHLEEN M. PAWLUS, CITIGROUP GLOBAL MARKETS INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, BARCLAYS CAPITAL INC. and CREDIT SUISSE SECURITIES (USA) LLC, Defendants, Case No. 1:18-cv-00299-AJN-SLC (S.D. N.Y.). Disclosure and discovery activity in the Action may involve production of information that is not publicly known, including non-public personal information, trade secrets, or other confidential research, development, or commercial information, which is entitled to confidential treatment under the Federal Rules of Civil Procedure (including Rule 26) or other applicable law, regulation, or agreement. Therefore, pursuant to Federal Rules of Civil Procedure 26 and 29, the Parties stipulated and agreed to the Protective Order. All Discovery Material (including, but not limited to, Confidential Discovery Material, Data Protection Discovery Material, and Highly Confidential Discovery Material) will be used solely for purposes of the prosecution or defense of the Action and may not be used for any other purpose whatsoever, including, but not limited to, any business or commercial purpose, for dissemination to the media or the public, or in connection with any other proceeding, whether judicial, governmental, administrative, or arbitral or contemplated, pending, or final. The Parties, the attorneys of record for the Parties, and all other persons receiving Discovery Material governed by this Protective Order will maintain such Discovery Material in a secure manner so as to avoid disclosure of its contents and take reasonable steps to ensure that Discovery Material is (i) used only for the purposes specified herein and (ii) disclosed only to authorized persons, as provided. A Receiving Person may, at any time prior to the conclusion of trial in the Action, submit a written objection to a designation hereunder to a Designating Person. The Designating Person, within 14 days after receipt of a written challenge, must advise the Receiving Person whether or not it will change the designation. Within 90 days after final judgment in the Action, including the exhaustion of all appeals, or within 90 days after dismissal pursuant to a settlement agreement becomes final and not subject to any further appeal, each Receiving Person, upon request of the Producing Person in writing, is under an obligation to return to the Producing Person, or undertake reasonable efforts to destroy, all Confidential Discovery Material, Data Protection Discovery Material, and Highly Confidential Discovery Material, and to certify to the Producing Person that this destruction or return has been completed. However, outside counsel for any Party is entitled to retain all Court papers, trial transcripts, exhibits, and attorney work product, provided that any such materials containing Confidential Discovery Material, Data Protection Discovery Material, or Highly Confidential Discovery Material, are maintained and protected in accordance with the terms of the Order. The Protective Order will be enforced by the sanctions set forth in Fed. R. Civ. P. 37(a) and any other sanctions as may be available to the presiding judge, including the power to hold Parties or other violators of the Protective Order in contempt. All other remedies available to any person injured by a violation of the Protective Order are fully reserved. The Order will become effective as a stipulation among the Parties immediately upon its execution. Nothing in the Order affects the parties' obligation to comply with Rule 4 of the Court's Individual Practices in Civil Cases governing redactions and filing under seal, or with any of the Court's other Individual Practices as relevant. A full-text copy of the Court's Jan. 10, 2020 Stipulated Protective Order is available at https://is.gd/RpxmtZ from Leagle.com. International Union of Operating Engineers Pension Fund of Eastern Pennsylvania and Delaware, Lead Plaintiff, represented by James Edward Miller -- jmiller@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP, Laurie Rubinow -- lrubinow@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLC & Jayne Arnold Goldstein -- jgoldstein@sfmslaw.com -- Shepherd, Finkelman, Miller & Shah, LLP. Hawaii Structural Ironworkers Pension Trust Fund, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Christopher Thomas Gilroy, Robbins Geller Rudman & Dowd, LLP, David Avi Rosenfeld -- djr@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Samuel Howard Rudman -- SRudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Warren Nichols, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP & Joseph Alexander Hood, II -- ahood@pomlaw.com -- Pomerantz LLP. ARTIFICIAL GRASS: Class Claims in Bacon Dismissed Without Prejudice ------------------------------------------------------------------- In the case, ADRIAN BACON, individually and on behalf of all others similarly situated, Plaintiff, v. ARTIFICIAL GRASS LIQUIDATORS LOCATION 1, INC.; and DOES 1 through 10, inclusive, and each of them, Defendants, Case No. 8-18-cv-01220-JLS-ADS (C.D. Cal.), Judge Josephine L. Staton of the U.S. District Court for the Central District of California, Southern Division, (i) dismissed with prejudice the Plaintiff's individual claims; (2) dismissed without prejudice their class claims; and (3) sealed the parties' settlement agreement. She concluded that the factors set forth in Diaz v. Tr. Territory of Pac. Islands weigh in favor of dismissal. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/r3mFUk from Leagle.com. Adrian Bacon, individually and on behalf of all others similarly situated, Plaintiff, represented by James H. Bartolomei, III -- james@duncanfirm.com -- Duncan Firm PA. Artificial Grass Liquidators Location 1, Inc., Defendant, represented by Anahit Tagvoryan -- atagvoryan@blankrome.com -- Blank Rome & Harrison Maxwell Brown -- hbrown@blankrome.com -- Blank Rome. ASHBRITT INC: Court Dismisses RICO Claims in Mason Suit ------------------------------------------------------- In the case, CRAIG MASON, Plaintiff, v. ASHBRITT, INC., et al., Defendants, Case No. 19-cv-01062-DMR (N.D. Cal.), Magistrate Judge Donna M. Ryu of the U.S. District Court for the Northern District of California granted the Defendants' motion to dismiss Mason's Racketeering Influenced and Corrupt Organizations Act ("RICO") claims pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). The case relates to property damage caused by the Northern California wildfires of October 2017 and subsequent remediation efforts. Defendants AshBritt and Tetra Tech, Inc. contracted with the United States government to provide disaster relief services following the fires. Mason, a California resident, owned real property in Sonoma County during the class period, which is defined as October 2017 to the present. In October 2017, a series of wildfires caused extensive damage throughout the Northern California counties of Sonoma, Napa, Mendocino, and Lake, among others. The fires burned over 245,000 acres of land and destroyed over 14,700 homes. On Oct. 10, 2017, President Trump ordered federal aid to assist the recovery efforts in areas affected by the fires. The Federal Emergency Management Agency ("FEMA") coordinated those efforts. The Army Corps of Engineers ("ACE"), working under FEMA, oversaw and coordinated contractors' clean up and debris removal work as part of the recovery efforts. ACE contracted with AshBritt, a Florida corporation, to manage the Project. Mason, a property owner in Sonoma County, filed the putative class action on Feb. 26, 2019, alleging that the Defendants caused property damage and engaged in fraudulent conduct during their remediation efforts. Both AshBritt and Tetra Tech personnel were personally involved in overseeing work performed on each property involved in the Project. According to Mason, these personnel instructed subcontractors to over-excavate properties where proper testing had not been conducted. Allegedly, the Defendants told state and federal agencies that properties were uncontaminated when either the contamination results were falsified or had not been done at all. Mason claims that the Defendants directed or knowingly permitted subcontractors' over-excavation in furtherance of the common purpose of increasing profits at the expense of the United States government and to the detriment of the Plaintiffs. Mason alleges that this conduct was part of a "cleanup enterprise" between AshBritt and Tetra Tech. According to Mason, this enterprise has existed for at least four years and involved at least six other joint projects. Similar to the Northern California wildfire project, AshBritt engaged subcontractors for these other projects while Tetra Tech monitored the debris removal. Mason claims that the fundamental goal of the enterprise was to maximize the profits of AshBritt and Tetra Tech by over-excavating on subject properties and unnecessarily removing non-debris material without testing for contamination. In furtherance of the joint enterprise, the Defendants allegedly submitted false attestations and statements to ACE certifying that they had removed necessary amounts of debris and soil from subject properties only after proper contamination testing. Mason avers that the Defendants "communicated with each other via daily mail and e-mail correspondence in furtherance of their scheme to defraud the U.S. government. He alleges that Defendants generated and submitted false reports to government agencies daily between October 2017 and the present. According to Mason, the Defendants represented to the U.S. government that they had only removed contaminated soil and debris from each property when in fact they (1) removed excess soil that was not contaminated; (2) removed trees that did not fit the ACE criteria for removal; and (3) failed to remove contaminated soil. These false reports were allegedly submitted through mail, e-mail, and the online load ticket system. Mason brings claims on behalf of the class, alleging that the Defendants violated RICO by unlawfully maintaining an enterprise for the purpose of defrauding the U.S. government. He also asserts numerous state law tort claims, including trespass, conversion, trespass to chattels, and violations of the California's Unfair Competition Law ("UCL"). He seeks a judgment awarding class benefits for actual, compensatory, and liquidated damages; injunctive relief prohibiting further unlawful conduct; restitution and disgorgement; civil and statutory penalties; interest; and attorneys' fees and costs. The Defendants move to dismiss Mason's RICO claims under Rule 12(b)(6). Mason alleges the contents of the ACE contract in the complaint, but the document is not physically attached to his pleading. No party raised a question of authenticity as to the document. Accordingly, the incorporation by reference doctrine applies and judicial notice is not required for the court to consider the ACE contract. Judge Ryu denied as moot Mason's request for judicial notice. Turning to the motions to dismiss, Judge Ryu holds that Mason has not pleaded the requisite causation to substantiate a RICO claim, and therefore does not reach the question of whether Mason has adequately pleaded the other elements of his RICO claim. The Judge further holds that Mason's conspiracy claim fails as he has not pleaded an underlying RICO violation. Mason and the putative class are not the appropriate Plaintiffs to bring a RICO claim based on the Defendants' alleged fraud against the U.S. government. As Mason has failed to show that he has standing to pursue a RICO claim under section 1962(c), his conspiracy claim under section 1962(d) also fails. And, although it seems unlikely, the Court cannot say with certainty that amendment of the pleadings would be futile. Therefore, Mason is granted leave to amend his complaint with respect to the RICO claims, the Court orders. For the foregoing reasons, Judge Ryu granted the Defendants' motion to dismiss Mason's RICO claims. Mason was given until Jan. 24 to file an amended complaint. A full-text copy of the District Court's Jan. 10, 2020 Order is available at https://is.gd/ZySoGZ from Leagle.com. Craig Mason, Plaintiff, represented by Kevin M. Osborne, The Arns Law Firm, Julie C. Erickson, The Arns Law Firm, Shounak Sanjeev Dharap -- shounak.dharap@gmail.com -- The Arns Law Firm & Robert Stephen Arns -- rarns@usfca.edu -- The Arns Law Firm. ASHBRITT, INC., Defendant, represented by Gayle M. Athanacio -- gathanacio@rjo.com -- Rogers Joseph & O'Donnell. Tetra Tech, Inc., Defendant, represented by James Harold Vorhis -- jvorhis@nossaman.com -- Nossaman LLP, David C. Lee -- dlee@nossaman.com -- Nossaman LLP & Jill Nicole Jaffe -- jjaffe@nossaman.com -- Nossaman LLP. AT&T SERVICES: Dist. Ct. Judgment in Gadehak TCPA Suit Affirmed --------------------------------------------------------------- In the case, ALI GADELHAK, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. AT&T SERVICES, INC., Defendant-Appellee, Case No. 19-1738 (7th Cir.), the U.S. Court of Appeals for the Seventh Circuit affirmed the district court judgment that AT&T's system did not qualify as an "automatic telephone dialing system" because it lacked the capacity to generate random or sequential numbers. The dispute stems from AT&T's "Customer Rules Feedback Tool," a device that sends surveys to customers who have interacted with AT&T's customer service department. Using this tool, AT&T sent Chicago resident Gadelhak five text messages asking survey questions in Spanish. But Gadelhak is neither an AT&T customer nor a Spanish speaker, and his number is on the national "Do Not Call Registry." Annoyed by the texts, Gadelhak brought a putative class action against AT&T for violating the Telephone Consumer Protection Act, which Congress enacted in 1991 to address the problem of intrusive telemarketing. With some exceptions not relevant in the case, the Act prohibits the use of an "automatic telephone dialing system" to call or text any cellular phone without the prior consent of the recipient, as well as to call certain hospital numbers. The success of Gadelhak's suit depends on whether AT&T's feedback tool meets the definition. Unfortunately, the awkward statutory wording, combined with changes in technology, makes it a very difficult question. At the time that the TCPA was passed, telemarketers primarily used systems that randomly generated numbers and dialed them, and everyone agrees that such systems meet the statutory definition. But that's not how AT&T's customer feedback tool works. The system, like others commonly used today, pulls and dials numbers from an existing database of customers rather than randomly generating them. (Given that its tool pulls exclusively from its customer database, AT&T posits that Gadelhak received messages because of a typographical error.) Determining whether such systems meet the statutory definition has forced courts to confront an awkwardness in the statutory language that apparently didn't matter much when the statute was enacted: it's not obvious what the phrase using a random or sequential number generator modifies. The answer to that question dictates whether the definition captures only the technology that predominated in 1991 or is broad enough to encompass some of the modern, database-focused systems. The Seventh Circuit begins with the interpretation adopted by the Third and Eleventh Circuits. Under their reading, the phrase "using a random or sequential number generator" modifies both "store" and "produce," defining the means by which either task must be completed for equipment to qualify as an "automatic telephone dialing system." Notwithstanding the difficulties posed by the interpretation, the Seventh Circuit thinks that the language bears it. But because of those difficulties, the Court proceeds to consider whether any of the other possibilities fares better. The district court favored the next option: that "using a random or sequential number generator" modifies the "telephone numbers" that are dialed. Under this interpretation, an "automatic telephone dialing system" is equipment with the capacity to store or produce telephone numbers generated using a random or sequential number generator as well as the capacity to dial those numbers. Because AT&T's system cannot generate random strings of numbers for itself and instead dials only existing numbers from AT&T accounts, the district court held that it could not satisfy the statutory definition. The Seventh Circuit opines that although the district court's version of the statute is clearer and therefore tempting, "the Court's task is to interpret the words of Congress, not add to them." The words of Congress, as written, do not permit the second interpretation. Gadelhak presses the third option: that the phrase "using a random or sequential number generator" modifies only the equipment's capacity to "produce." To Gadelhak, it doesn't matter that AT&T's system cannot generate random or sequential 10-digit numerical strings. As he sees it, the capacity to produce numbers using a random number generator is only one means of meeting the statutory definition. Considering the statute as a whole, that result makes little sense. The Act's other provisions address narrow conduct much more likely to be performed by telemarketers than by private citizens -- for example, the use of "an artificial or prerecorded voice." The definition of an "automatic telephone dialing system" would be an outlier within the statutory scheme if it were to capture such a wide swath of everyday conduct. Gadelhak's rationale for choosing an atextual interpretation is therefore unpersuasive. There is one final possibility: that "using a random or sequential number generator" modifies how the telephone numbers are "to be called." In other words, the definition captures devices with the capacity to store or to produce telephone numbers that will be dialed by a random or sequential number generator. Satisfied that "using a random or sequential number generator" does not describe how the numbers are "to be called," the Seventh Circuit is left again with the first interpretation. It is admittedly imperfect. But it lacks the more significant problems of the other three interpretations and is thus the best reading of a thorny statutory provision. The Court, therefore, holds that the phrase "using a random or sequential number generator" describes how the telephone numbers must be "stored" or "produced." Based on the foregoing, the Seventh Circuit concludes that "using a random or sequential number generator" modifies both "store" and "produce." The system at issue in te case, AT&T's "Customer Rules Feedback Tool," neither stores nor produces numbers using a random or sequential number generator; instead, it exclusively dials numbers stored in a customer database. Thus, it is not an "automatic telephone dialing system" as defined by the Act -- which means that AT&T did not violate the Act when it sent unwanted automated text messages to Gadelhak. The district court held that AT&T's system did not qualify as an "automatic telephone dialing system" because it lacked the capacity to generate random or sequential numbers. Although the Seventh Circuit adopts a different interpretation of the statute, under its reading, too, the capacity to generate random or sequential numbers is necessary to the statutory definition. The Seventh Circuit therefore adopts the district court's judgment. A full-text copy of the Court's Feb. 19, 2020 Opinion is available at https://is.gd/cZKtgQ from Leagle.com. Andrew John Pincus, for Defendant-Appellee. Keith J. Keogh, for Plaintiff-Appellant. Hans Germann -- hgermann@mayerbrown.com -- for Defendant-Appellee. Steven Gregory White, for Amicus Curiae. Kyle J. Steinmetz -- ksteinmetz@mayerbrown.com -- for Defendant-Appellee. Shay Dvoretzky, for Amicus Curiae. Marc Rotenberg, for Amicus Curiae. Timothy J. Sostrin -- TSostrin@KeoghLaw.com -- for Plaintiff-Appellant. BANK OF AMERICA: Net Settlement Fund Distribution in AEPF Suit OK'd ------------------------------------------------------------------- In the case, ALASKA ELECTRICAL PENSION FUND, et al., Plaintiffs, v. BANK OF AMERICA, CORPORATION, et al., Defendants, Case No. 14-CV-7126 (JMF) (S.D. N.Y.), Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York (i) granted the Lead Counsel's motion for Court approval to make distributions of net settlement funds to the claimants with valid claims, and (ii) overruled the objection of Fortinbras Asset Management GmbH, formerly known as Prospero Beteiligungsverwaltung GmbH. The long-lasting and complex class action, institutional investors alleged that many of the world's largest banks illegally manipulated the U.S. Dollar ISDAfix, a benchmark interest rate incorporated into a broad range of financial derivatives. After more than three years of litigation, the Plaintiffs reached settlements with each Defendant, all of which were approved by the Court, along with proposed plans of distribution. Pursuant to the Court's Orders, the claims administrator, Epiq Systems, Inc., published notice of the settlements and received and reviewed individual claims. The Class Counsel now moves for Court approval to make distributions of net settlement funds to claimants with valid claims. Only one claimant -- Fortinbras -- has filed an objection, on the ground that Epiq wrongfully rejected certain of its claims. Following the settlements, Epiq distributed more than 59,000 notice packets to potential class members advising them of the settlement. Epiq ultimately received more than 31,000 claims before the filing deadlines set by the settlements. Of those claims, Epiq determined that 2,369 should be rejected in full and that 28,750 are eligible for payment. Epiq valued 23,413 of those claims at equal to or less than $100; of the remaining authorized claimants, 5,124 are eligible to receive payments averaging $64,897.32 total from both settlement funds, and 213 are eligible to receive payments averaging $6,289.21 from the later settlement fund only. The Class Counsel proposes multiple rounds of distributions to claimants with valid claims. In the initial distribution, the claimants with valid claims equal to or less than $100 in value would receive an "alternative minimum payment" of $100 in order to "preserve the value of the Settlement Funds" by incentivizing claimants to cash their checks, which reduces the costs incurred by the claims administrator. The other claimants with valid claims would receive, in the first instance, pro rata distributions of 92% of the balance of the settlement funds -- that is, after the alternative minimum payments (which total less than 1% of the funds) are deducted. The remaining 8% of the settlements would be held in reserve "to address any contingencies that may arise with respect to" the initial distribution or to pay costs incurred in the administration of the settlement funds, as later authorized by the Court. If any funds remained after such costs were deducted, they would be distributed to claimants unless Epiq and the Class Counsel determine that further distribution would not be cost-effective, in which case the Class Counsel would seek the Court's permission to approve a final distribution to a non-profit organization. As noted, there are no objections to this plan or to the manner in which the settlements have been administered. Upon review of the Class Counsel's submissions, Judge Furman finds that it is for good reason: Because the proposed distributions are in the best interests of the class. Upon review of the Class Counsel's motion papers, Judge Furman is satisfied that the proposed distribution framework -- to which no one objects -- is fair and reasonable. The record makes plain that the notice and claim review process was diligently and effectively completed. Moreover, whether or to what extent such an award may be appropriate is an issue for another day. In short, the general framework of the Class Counsel's proposed distributions is fair and reasonable, and he thus grants the Class Counsel's motion for approval. That leaves only the objection filed by Fortinbras -- which is not to the distribution plan, but instead to Epiq's rejection of certain of its claims. Notably, despite the fact that 31,119 claims were submitted, Fortinbras is the only claimant that has challenged Epiq's determinations. Fortinbras complains that the Class Counsel's proposal improperly excludes from distribution certain claims relating to alleged trades of interest rate swaps that incorporated the ISDAfix rate. The Class Counsel, for their part, agrees with Epiq's conclusion -- following a year-long audit -- that the disputed claims should be excluded because Fortinbras has not provided sufficient evidence that the trades giving rise to Fortinbras's claims actually occurred. The Judge concludes that Epiq properly rejected Fortinbras' disputed claims because Fortinbras failed to prove that it engaged in real transactions. Fortinbras seeks to justify the lack of evidence by asserting that it had agreed with Credit Suisse to create only "minimal documentation" because each trade would be "unwound one business day after being opened. But, putting aside the improbability that Credit Suisse and Fortinbras would engage in transactions totaling more than $3 trillion in notional value based on such paltry documentation, Fortinbras's assertion undermines, rather than salvages, its claims. One risk of creating so little documentation is that, if the existence or validity of a trade is later questioned, the parties to the transaction would be hard-pressed to prove it. The documents provided here suggest only that Fortinbras assisted in the calculation of an index to which other financial products were linked. No evidence suggests, let alone proves, that Fortinbras purchased any of those products -- a conclusion that is reinforced by the fact that Credit Suisse searched its records and was "unable to identify any transactions with Fortinbras during the relevant period. Accordingly, the Judge holds that Epiq and the Class Counsel did not err in finding the disputed claims invalid and excluding them from the proposed distribution. For the reasons he stated, Judge Furman granted the Class Counsel's motion to approve the distribution of net settlement funds in the manner described in their supporting papers, and overruled Fortinbras's objection. Consistent with those rulings, the Judge has signed, and will docket, the Class Counsel's proposed order approving the distribution plan. The Clerk of Court is directed to terminate ECF No. 746. A full-text copy of the Court's Feb. 26, 2020 Memorandum Opinion & Order is available at https://is.gd/q5BP0T from Leagle.com. Alaska Electrical Pension Fund, Plaintiff, represented by Christopher M. Burke -- cburke@scott-scott.com -- Thomas Kay Boardman -- tboardman@scott-scott.com -- Sylvia Sokol -- ssokol@scott-scott.com -- Kristen M. Anderson -- kanderson@scott- scott.com -- at Scott Scott, LLP; Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Daniel Paul Cunningham -- danielcunningham@quinnemanuel.com -- Marc Laurence Greenwald -- marcgreenwald@quinnemanuel.com -- Steig Olson -- steigolson@quinnemanuel.com -- Jeremy Daniel Andersen -- jeremyandersen@quinnemanuel.com -- Jonathan Bacon Oblak -- jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan LLP; David W. Mitchell -- davidm@rgrdlaw.com -- Patrick Joseph Coughlin -- patc@rgrdlaw.com -- Brian O. O'Mara -- bomara@rgrdlaw.com -- Randi Dawn Bandman -- randib@rgrdlaw.com -- at Robbins Geller Rudman & Dowd LLP; Ronald Judah Aranoff -- Aranoff@bernlieb.com -- Stanley D. Bernstein -- Bernstein@bernlieb.com -- at Bernstein Liebhard, LLP Genesee County Employees' Retirement System, Plaintiff, represented by Christopher M. Burke -- cburke@scott-scott.com -- at Scott Scott, LLP; Daniel Lawrence Brockett-- danbrockett@quinnemanuel.com -- at at Quinn Emanuel Urquhart & Sullivan LLP Magnolia Regional Health Center, Plaintiff, represented by Stuart Halkett McCluer -- R. Bryant McCulley -- at McCulley McCluer PLLC; Michael C. Dell'Angelo -- mdellangelo@bm.net -- at Berger & Montague, P.C.; Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak -- jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan LLP The County of Beaver, Plaintiff, represented by Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak - - jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan LLP The City of New Britain, Plaintiff, represented by Christopher M. Burke -- cburke@scott-scott.com -- Donald A. Broggi -- dbroggi@scott-scott.com -- Peter Anthony Barile, III -- pbarile@scott-scott.com -- at Scott Scott, L.L.P.; Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak - - jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan LLP The County of Westmoreland, Plaintiff, represented by Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak -- jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan LLP The County of Montgomery, Plaintiff, represented by Christopher M. Burke -- cburke@scott-scott.com -- Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak -- jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan LLP; Peter Anthony Barile, III -- pbarile@scott-scott.com -- at Scott Scott, L.L.P.; Charles Thomas Caliendo -- ccaliendo@gelaw.com -- Robert Gerard Eisler -- reisler@gelaw.com - - at Grant & Eisenhofer P.A. The County of Washington, Plaintiff, represented by Christopher M. Burke -- cburke@scott-scott.com -- Daniel Lawrence Brockett -- danbrockett@quinnemanuel.com -- Jonathan Bacon Oblak -- jonoblak@quinnemanuel.com -- at Quinn Emanuel Urquhart & Sullivan LLP; Donald A. Broggi -- dbroggi@scott-scott.com -- Peter Anthony Barile, III -- pbarile@scott-scott.com -- at Scott Scott, L.L.P. Bank Of America Corporation, Defendant, represented by Adam Selim Hakki -- ahakki@shearman.com -- Richard Franklin Schwed -- rschwed@shearman.com -- at Shearman & Sterling LLP Barclays Bank PLC, Defendant, represented by Alexander John Willscher -- willschera@sullcrom.com -- Benjamin Robert Walker -- walkerb@sullcrom.com -- David Harold Braff -- braffd@sullcrom.com -- Jeffrey T. Scott -- scottj@sullcrom.com -- Matthew Joseph Porpora -- porporam@sullcrom.com -- Matthew Alexander Schwartz -- schwartzmatthew@sullcrom.com -- at Sullivan & Cromwell, LLP; Andrew Zenner Michaelson -- amichaelson@bsfllp.com -- Jonathan David Schiller -- jschiller@bsfllp.com -- at Boies, Schiller & Flexner, LLP BNP Paribas SA, Defendant, represented by Alejandro Hari Cruz -- acruz@pbwt.com -- Deirdre Ann McEvoy -- Joshua Aaron Goldberg -- jgoldberg@pbwt.com -- Amy Neda Vegari -- avegari@pbwt.com -- William Francis Cavanaugh, Jr. -- wfcavanaugh@pbwt.com -- at Patterson, Belknap, Webb & Tyler LLP CitiGroup Inc., Defendant, represented by Alan M. Wiseman -- awiseman@cov.com -- Andrew D. Lazerow -- alazerow@cov.com -- Andrew Arthur Ruffino -- aruffino@cov.com -- Jamie A. Heine -- jheine@cov.com -- at Covington & Burling, L.L.P. Deutsche Bank AG, Defendant, represented by James L. Brochin -- jbrochin@paulweiss.com -- Moses Silverman -- msilverman@paulweiss.com -- Aaron Sean Delaney -- adelaney@paulweiss.com -- at Paul, Weiss, Rifkind, Wharton & Garrison LLP HSBC Bank USA, N.A. and HSBC Bank PLC, Defendants, represented by Edwin R. Deyoung -- Andrew L. Fish -- Gregory Thomas Casamento -- gcasamento@lockelord.com -- Roger Brian Cowie -- rcowie@lockelord.com -- at Locke Lord Bissell & Liddell LLP Royal Bank of Scotland PLC, Defendant, represented by Jay B. Kasner -- jay.kasner@skadden.com -- Paul Madison Eckles -- paul.eckles@skadden.com -- Shepard Goldfein -- shepard.goldfein@skadden.com -- Thomas Mcauley Leineweber -- thomas.leineweber@skadden.com -- at Skadden, Arps, Slate, Meagher & Flom LLP UBS AG, Defendant, represented by Peter Sullivan -- psullivan@gibsondunn.com -- Eric Jonathan Stock -- estock@gibsondunn.com -- Jefferson Eliot Bell -- jbell@gibsondunn.com -- Joel Steven Sanders -- jsanders@gibsondunn.com -- Lawrence Jay Zweifach -- lzweifach@gibsondunn.com -- Nathaniel L. Bach -- at Gibson, Dunn & Crutcher, LLP Nomura Securities International, Inc., Defendant, represented by Joseph John Frank -- joseph.frank@shearman.com -- Brian Howard Polovoy -- bpolovoy@shearman.com -- Heather Lamberg Kafele -- hkafele@shearman.com -- Katherine Mallory Tosch Brennan -- mallory.brennan@shearman.com -- at Shearman & Sterling LLP JPMorgan Chase & Co., Defendant, represented by Arthur J. Burke -- arthur.m.t.burke@davispolk.com -- at Davis Polk & Wardwell Wells Fargo Bank, N.A., Defendant, represented by Eric Jonathan Seiler -- eseiler@fklaw.com -- Andrew W. Goldwater -- agoldwater@fklaw.com -- Anne Elizabeth Beaumont -- abeaumont@fklaw.com -- Jamuna D. Kelley -- jkelley@fklaw.com -- Priyanka Kishore Wityk -- pwityk@fklaw.com -- at Friedman, Kaplan, Seiler & Adelman, LLP Morgan Stanley & Co. LLC, Defendant, represented by Kenneth Ian Schacter -- kenneth.schacter@morganlewis.com -- Anthony R. Van Vuren -- anthony.vanvuren@morganlewis.com -- Jon Randall Roellke - - jon.roellke@morganlewis.com -- at Morgan Lewis & Bockius, LLP Credit Suisse AG, New York Branch, Defendant, represented by David George Januszewski -- djanuszewski@cahill.com -- Herbert Scott Washer -- hwasher@cahill.com -- Landis C. Best -- lbest@cahill.com -- at Cahill Gordon & Reindel LLP The Goldman Sachs Group, Inc., Defendant, represented by Elizabeth Vicens -- evicens@cgsh.com -- Leah Brannon -- lbrannon@cgsh.com -- Sue Siyan Guan -- sguan@cgsh.com -- Thomas J. Moloney -- tmoloney@cgsh.com -- at Cleary Gottlieb Steen & Hamilton LLP ICAP Capital Markets, LLC, Defendant, represented by Brian S. Fraser -- bfraser@rkollp.com -- Rowan Gaither, IV -- rgaither@rkollp.com -- Shari A. Brandt -- sbrandt@rkollp.com -- at Richards Kibbe & Orbe LLP BAUSCH HEALTH CO: MSP Recovery Sues Over Diabetes Drug Monopoly --------------------------------------------------------------- MSP Recovery Claims, Series LLC, Plaintiff, v. Bausch Health Companies Inc., Salix Pharmaceuticals, Ltd., Salix Pharmaceuticals, Inc., Santarus, Inc., Assertio Therapeutics, Inc., Lupin Pharmaceuticals, Inc. and Lupin Ltd., Defendants, Case No. 20-cv-20555, (S.D. Fla., February 6, 2020) seeks to recover damages, interest, costs of suit and reasonable attorneys' fees resulting from anticompetitive foreclosure of Glumetza in violation of the Sherman Act and various state antitrust, state consumer protection and common laws. MSP purchased branded Glumetza from Defendants. MSP is a Medicare Advantage Organization that provides Medicare benefits to Medicare-eligible beneficiaries enrolled under the Medicare Advantage program. Defendants are pharmaceutical companies involved in the manufacture of Glumetza, a diabetes medication used to prevent and control high blood sugar. [BN] Plaintiff is represented by: Andres Rivero, Esq. Jorge A. Mestre, Esq. Charles E. Whorton, Esq. David L. Daponte, Esq. RIVERO MESTRE LLP 2525 Ponce de Leon Blvd., Suite 1000 Miami, FL 33134 Telephone: (305) 445-2500 Facsimile: (305) 445-2505 E-mail: arivero@riveromestre.com jmestre@riveromestre.com cwhorton@riveromestre.com ddaponte@riveromestre.com npuentes@riveromestre.com BIMBO BAKERIES: Court Dismisses Peatry's Post-May 8, 2018 Claims ---------------------------------------------------------------- In the case, LISA PEATRY, individually, and on behalf of all others similarly situated, Plaintiff, v. BIMBO BAKERIES USA, INC., Defendant, Case No. 19 C 2942 (N.D. Ill.), Judge Sara L. Ellis of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted in part and denied in part Bimbo's motion to dismiss. Plaintiff Peatry, an employee of Defendant Bimbo, filed the putative class action lawsuit alleging that Bimbo violated the Illinois Biometric Information Privacy Act ("BIPA"), through its collection, storage, and use of Peatry's biometric information. Specifically, Peatry brings claims for (1) Bimbo's failure to institute, maintain, and adhere to a publicly available retention schedule in violation of BIPA Section 15(a); (2) Bimbo's failure to obtain informed, written consent before obtaining biometric information in violation of BIPA Section 15(b); and (3) Bimbo's disclosure of biometric information before obtaining consent in violation of BIPA Section 15(d). Bimbo, a bakery product manufacturing company, uses a biometric timekeeping device, provided by a third party, to track employees' hours. Upon hiring an employee, Bimbo scans their fingerprints and enrolls them in an employee database. Employees must then use their fingerprints to clock in and clock out. Bimbo does not inform its employees that it discloses the biometric information it collects to its third-party vendor and other third parties that host the database. Bimbo also does not obtain written releases before collecting the fingerprints or provide employees with a written, publicly available policy identifying a retention schedule and guidelines for permanently destroying employees' fingerprints. Peatry worked for Bimbo as a machine operator at Bimbo's facility at 1540 S. 54th Avenue in Cicero, Illinois. Aryzta owned the facility until Bimbo acquired it on Feb. 9, 2018. Bimbo entered into a collective bargaining agreement ("CBA") with the Chemical and Production Workers Union Local No. 30, AFL-CIO, which became effective May 8, 2018. Among other things, the CBA provides Bimbo with certain exclusive management rights, including to make and enforce reasonable plant rules of conduct and regulations not inconsistent with the provisions of the CBA, to introduce new and improved methods, materials, equipment or facilities," and "to change or eliminate existing methods, materials, equipment, or facilities. The CBA also sets forth negotiated wage tables. Finally, the CBA includes a grievance procedure, requiring employees to pursue disputes regarding the meaning and application of the terms of" the CBA in accordance with that procedure. During her employment at the facility between September 2016 and February 2019, Peatry scanned her fingerprints every time she clocked in and out of work as part of the facility's timekeeping method. Bimbo never informed her of the purposes or length of time for which Bimbo collected, stored, used, and disseminated her biometric data. Bimbo also never informed her of a biometric data retention policy or whether Bimbo would at some point permanently delete her biometric data. Peatry never received or signed a written release authorizing the collection, storage, use, and dissemination of her biometric data. She would not have provided her biometric data if she knew that Bimbo would retain it for an indefinite period of time without her consent. She also would not have agreed to the compensation she received had she known that Bimbo would retain her biometric data indefinitely. Bimbo moves to dismiss the complaint, arguing that Section 301 of the Labor Management Relations Act of 1947 (the "LMRA") and the National Labor Relations Act of 1935 ("NLRA") preempt Peatry's claims. Alternatively, it argues that Peatry has failed to state a BIPA claim and that the Illinois Workers Compensation Act ("IWCA") bars her claims. Judge Ellis holds that Peatry's BIPA claims require interpretation of the CBA, meaning that Section 301 preempts her BIPA claims regardless of whether the Court treats her rights under BIPA as nonnegotiable. And although the LMRA does not provide a separate vehicle for asserting claims like the RLA, the CBA includes a grievance procedure through which Peatry arguably could have raised her claims. Because Section 301 preempts Peatry's post-May 8, 2018 claims, Judge Ellis must determine the appropriate remedy. The Supreme Court has indicated that a preempted state law claim must either be treated as a Section 301 claim, or dismissed as pre-empted by federal labor-contract law. Employees must exhaust administrative remedies before bringing suit in federal court unless certain exceptions apply. Peatry has not set forth allegations to allow the Court to treat her claims as Section 301 claims, and it appears she did not properly exhaust her administrative remedies. Although Peatry may have an argument concerning the futility of exhaustion or the unavailability of the grievance procedure, Judge Ellis cannot make such determinations on the information before it. Judge Ellis therefore finds it appropriate to dismiss Peatry's post-May 8, 2018 claims without prejudice and allow Peatry to evaluate how she wishes to proceed with respect to these preempted claims. Judge Ellis concludes that Section 301 of the LMRA preempts Peatry's claims arising after May 8, 2018, when a collective bargaining agreement governing Peatry's employment went into effect. But Peatry may proceed on her pre-May 8, 2018 claims, which neither the NLRA or IWCA preempt and sufficiently allege BIPA violations. For these reasons, she granted in part and denied in part Bimbo's motion to dismiss. She dismissed Peatry's post-May 8, 2018 claims without prejudice. A full-text copy of the Court's Feb. 26, 2020 Opinion & Order is available at https://is.gd/UB18PY from Leagle.com. Lisa Peatry, individually, and on behalf of all others similarly situated, Plaintiff, represented by Ryan F. Stephan -- rstephan@stephanzouras.com -- Stephan, Zouras, LLP & Catherine T. Mitchell -- cmitchell@stephanzouras.com -- Stephan Zouras, LLP. Bimbo Bakeries USA, Inc., Defendant, represented by Elizabeth Brooke Herrington -- beth.herrington@morganlewis.com -- Morgan, Lewis & Bockius LLP, Alex David Berger -- alex.berger@morganlewis.com -- Morgan, Lewis & Bockius LLP & Tyler Zachary Zmick -- tyler.zmick@morganlewis.com -- Morgan, Lewis & Bockius Llp. BRUNEL RESOURCES: Shortchanges Workers' Overtime Pay, Jonson Claims ------------------------------------------------------------------- Michael Jonson, individually and on behalf of all others similarly situated, Plaintiff, v. Brunel Resources, Inc., Defendant, Case No. 20-cv-00374 (S.D. Tex., February 3, 2020), seeks to recover unpaid overtime compensation, liquidated damages, attorneys' fees, and costs under the provisions of the Fair Labor Standards Act of 1938. Brunel is a staffing company that places workers with its client companies in the oil and gas, mining, engineering, manufacturing and IT industries across the U.S. Jonson worked for Brunel as a construction coordinator from approximately March 2018 to January 2020. He claims to have regularly worked more than 8 hours per day and 40 hours per week but not paid any additional wages for overtime. [BN] Plaintiff is represented by: Don J. Foty, Esq. HODGES & FOTY, LLP 4409 Montrose Blvd, Ste. 200 Houston, TX 77006 Telephone: (713) 523-0001 Facsimile: (713) 523-1116 Email: dfoty@hftrialfirm.com CAREMARK PHC: BPP Junk Fax Row Removed to E.D. Mo. -------------------------------------------------- The case captioned BPP, individually and on behalf of other members of the public similarly situated, Plaintiff, v. Caremark PHC, LLC and Does 1 through 100, inclusive, Defendants, Case No. 19SL-CC05616 filed in the 21st Judicial Circuit Court of Missouri on December 6, 2019, was removed to the U.S. District Court for the Eastern District of Missouri on January 27, 2020 under Case No. 20-cv-00126. BPP alleges that Caremark, operating as "CVS Caremark" violated the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, by sending a facsimile message on September 4, 2019. [BN] Plaintiff is represented by: Ronald J. Eisenberg, Esq. Robert Schultz, Esq. SCHULTZ & ASSOCIATES LLP 640 Cepi Drive, Suite A Chesterfield, MO 63005 Telephone: (636) 733-6647 Facsimile: (636) 537-2599 - and - Philip M. Horwitz, Esq. LAW OFFICES OF PHILIP M. HORWITZ, L.L.C. 640 Cepi Drive, Suite A Chesterfield, MO 63005-1221 Tel: (636) 536-3644 Caremark is represented by: Kaleb N. Berhe, Esq. FOLEY & LARDNER LLP 555 South Flower Street, Suite 3300 Los Angeles, CA 90071 Tel: (213) 972-4572 Email: kberhe@foley.com - and - Robert H. Griffith, Esq. FOLEY & LARDNER LLP 321 North Clark Street Chicago, IL 60654 Tel: (312) 832-5174 Email: rgriffith@foley.com - and - Michael D. Leffel, Esq. FOLEY & LARDNER LLP 150 East Gilman Street Madison, WI 53703 Tel: (608) 258-4216 Email: mleffel@foley.com - and - Aaron R. Wegrzyn, Esq. FOLEY & LARDNER LLP 777 East Wisconsin Avenue Milwaukee, WI 53202 Tel: (414) 297-5156 Email: awegrzyn@foley.com CITY NATIONAL BANK: Bid to Dismiss Noe Suit Over NSF Fee Denied --------------------------------------------------------------- In the case, BRENDA C. NOE, on behalf of herself and all others similarly situated, Plaintiff, v. CITY NATIONAL BANK OF WEST VIRGINIA, Defendant, Civil Action No. 3:19-0690 (S.D. W.Va.), Judge Robert C. Chambers of the U.S. District Court for the Southern District of West Virginia, Huntington Division, denied the Defendant's Motion to Dismiss, Motion to Stay, and to Strike Class Action Allegations. The putative class action arises out of the Defendant's routine practice of assessing more than one non-sufficient funds ("NSF") fee for a single attempted transaction. Distinct from an overdraft fee, an NSF fee is assessed where a bank rejects an attempted transaction because of the insufficient balance of a customer's checking account. The particular practice challenged in the case is not the assessment of NSF fees as a whole, but rather the practice of charging multiple NSF fees for one attempted purchase. The issue stems from certain retailers' policies of re-submitting transactions to the Defendant for approval -- without a customer's knowledge -- after it has already been rejected for a single purchase. The Plaintiff -- a resident of Glenwood, West Virginia -- has held two accounts at City National. The first account was opened in 2012, and is the account that is directly relevant to the instant case. In opening the account, the Plaintiff assented to a sixpage account agreement. Near the end of the agreement is an arbitration clause. The agreement governed the Plaintiff's account for the next several years without alteration. In December 2017, however, the Defendant mailed the Plaintiff a "Notice of Change" meant to update the "Terms and Conditions to address the Military Lending Act revision," as well as "to make several other revisions." The Plaintiff continued to use her account, signaling her assent to the updated terms. Significantly, however, the updated Terms and Conditions omitted any mention of arbitration. In any event, the Plaintiff's continued use of her account gave rise to two transactions that form the basis of the suit. In July 2018, the Plaintiff attempted to purchase $52.10 worth of items at Cashland. The Defendant rejected the payment due to insufficient funds, and charged the Plaintiff a $36 NSF fee for doing so. Weeks later, Cashland apparently re-submitted the transaction to Defendant without the Plaintiff's knowledge. The Defendant again rejected the payment, and assessed another $36 NSF fee. The pattern repeated itself once again two weeks later, with another attempted transaction submitted by Cashland and another fee assessed by the Defendant. In total, the Plaintiff was charged $108 in NSF fees for a single attempted purchase of $52.10. The pattern persisted in May 2019 after the Plaintiff attempted a payment to Wal-Mart for $25.13. Pursuant to its NSF fee policy, City National charged the Plaintiff a $36 fee that same day. Yet over the course of the following weeks, Wal-Mart resubmitted the charge to the Defendant four more times. These five attempted payments each resulted in $36 NSF fee assessments, resulting in a total charge of $180 for an attempted transaction of $25.13. Frustrated by these charges, the Plaintiff initiated the instant action in the Court on Sept. 20, 2019. The Plaintiff brings her claims on behalf of herself and all similarly-situated customers, and argues that the Defendant's NSF fee practices breach contractual promises or result in unjust enrichment in the alternative. She also alleges several violations of the West Virginia Consumer Credit and Protection Act. The Defendant filed the pending motion on Nov. 22, 2019, arguing for dismissal on several different grounds. It raises seven arguments in favor of dismissing various parts -- or in some cases, all -- of the Amended Complaint. The Defendant's first argument -- and the one that has attracted the most attention in the parties' briefs -- is that the arbitration clause in the Plaintiff's 2012 Deposit Account Agreement and Disclosure bars her from pursuing relief in the Court. As the Court is required to draw all reasonable inferences in the Plaintiff's favor at this stage of litigation, it seems clear to Judge Chambers that the Terms and Conditions appended to the Notice of Change could have governed the Plaintiff's account at the time of the challenged transaction. Given the lack of any arbitration agreement in these terms, he cannot conclude that a valid arbitration clause exists that would preclude this litigation. Though the Defendant is free to produce evidence at some future stage of the action tending to demonstrate that the Terms and Conditions supplied to the Plaintiff in 2017 did not replace the 2012 Deposit Account Agreement and Disclosure, it is not a question fit for resolution on a motion to dismiss. The Defendant's next argument is that the Plaintiff's claims are time-barred by the Electronic Funds Transfer Act ("EFTA"). Judge Chambers holds that the question before the Court is whether the contested NSF fees represent an "error" in the Plaintiff's billing statements subject to the EFTA's 60-day time bar. Neither the text of the EFTA nor precedent is particularly clear on this point, but the Defendant's argument fails for an even more immediate reason: that the very heart of its argument is that the contested NSF fees were not errors, but rather contractually-mandated fees assessed on independent transactions. The Judge struggles to conceive of a scenario in which a fee could be justified by a contract and assessed as a regular business practice, yet still be considered an "error" within any reasonable definition of the word. The Defendant can have its cake or choose to eat it, but it cannot do both. The Plaintiff's claims are not time-barred under the EFTA, and so dismissal is not warranted. The Defendant's third argument is that it possessed a contractual right to assess the NSF fees at issue, and that the Plaintiff has therefore failed to state a claim upon which relief can be granted. At this stage of litigation, Judge Chambers cannot conclude as a matter of law that the terms of the 2012 Deposit Account Agreement and Disclosure applied at the time the contested fees were assessed. As the Defendant has offered no argument with regard to the Terms and Conditions mailed to the Plaintiff in 2017, it is unclear whether the Defendant had the contractual right to assess more than one NSF fee for a single attempted purchase. As such, the Judge cannot dismiss the case on these grounds. The Defendant next argues that federal law preempts any state law claims challenging fees imposed by national banks are expressly preempted by federal law. The Plaintiff has raised claims in three counts -- (Count One) a claim for breach of contract and breach of the covenant of good faith and fair dealing; (Count Two) a claim for unjust enrichment; and (Count Three) claims for unfair and deceptive acts or practices within the meaning of the West Virginia Consumer Credit and Protection Act-- that are precisely the sort of claims that are not preempted by federal law. To the extent the Defendant cites other cases to support dismissal, the common thread running through each opinion is the existence of an undisputed, operative contract binding the Plaintiff to pay NSF fees and the attendant absence of any nonpreempted claim. The Court is therefore precluded from dismissing the Plaintiff's claims on preemption grounds. The Defendant's fifth argument is that the Plaintiff cannot state a claim for breach of contract, breach of the implied covenant of good faith and fair dealing, or unjust enrichment. Judge Chambers finds that the Plaintiff has not raised a separate claim for breach of the covenant of good faith and fair dealing; and has stated a claim for unjust enrichment in the alternative to her claims in Count One. Hence, dismissal is not appropriate. The Defendant also argues that the Plaintiff has not stated a claim under the West Virginia Consumer Credit and Collection Act ("WVCCCA"). Like the Defendant's argument with respect to the Plaintiff's common law claims, this is incorrect. The WVCCCA is an expansive piece of consumer protection legislation whose purpose is to complement the body of federal law governing unfair competition and unfair, deceptive and fraudulent acts or practices in order to protect the public and foster fair and honest competition. For the purposes of a motion to dismiss, then, the Plaintiff has sufficiently alleged that the Defendant's conduct constitutes an unlawful practice under the WVCCCA. The Defendant's final argument is that the Plaintiff's class allegations must be stricken because no cause of action states a claim for class relief and the arbitration clause of the 2012 Deposit Account Agreement and Disclosure bars class actions. Judge Chambers holds that the Defendant's argument fails for an even clearer reason: it is unquestionably premature. This is precisely why Rule 23(c)(1) of the Federal Rules of Civil Procedure was amended: to require courts to determine whether to certify a lawsuit as a class action at an early practicable time rather than at the pleading stage. In sum, the Defendant advances no argument that can justify a stay of the action -- let its alone dismissal, rules the Court. Striking the Plaintiff's class allegations is likewise premature. Discovery in the case will no doubt solicit evidence tending to demonstrate whether the Terms and Conditions attached to the Notice of Change governed the Plaintiff's account at the time of the contested transactions, as well as whether the Plaintiff can establish the numerosity, commonality, typicality, and adequacy of representation necessary to certify a class. For the limited purposes of a motion to dismiss, however, the Plaintiff's claims will proceed. For the foregoing reasons, Judge Chambers denied the Defendant's motion. He directed the Clerk to send a copy of his Memorandum Opinion and Order to the counsel of record and any unrepresented parties. A full-text copy of the Court's Feb. 19, 2020 Memorandum Opinion & Order is available at https://is.gd/idANJS from Leagle.com. Brenda C. Noe, on behalf of herself and all others similarly situated, Plaintiff, represented by George Franklin Lemond, Jr., WEBB KLASE & LEMOND, pro hac vice, James G. Bordas, III -- jbordasiii@bordaslaw.com -- BORDAS & BORDAS, Jason E. Causey -- jcausey@bordaslaw.com -- BORDAS & BORDAS & Tiffany M. Yiatras, CONSUMER PROTECTION LEGAL, pro hac vice. City National Bank of West Virginia, Defendant, represented by Ancil G. Ramey -- ancil.ramey@steptoe-johnson.com -- STEPTOE & JOHNSON. CREDIT CONTROL: Court Denies Bid to Dismiss Cartmell FDCPA Suit --------------------------------------------------------------- In the case, WILLIAM CARTMELL, Plaintiff, v. CREDIT CONTROL, LLC, Defendant, Case No. 5:19-cv-1626 (E.D. Pa.), Judge Joseph F. Leeson, Jr. of the U.S. District Court for the Eastern District of Pennsylvania denied Credit Control's motion to dismiss. The action is brought under the Fair Debt Collection Practices Act ("FDCPA"), in which Plaintiff Cartmell contends that Defendant Credit Control's attempt to collect a debt violated several provisions of that statute. As with many FDCPA cases, the case rests on the content of Credit Control's collection letter, which offered Cartmell three "payment options" for repayment of the debt. Prior to April 23, 2018, Cartmell incurred a credit card debt to Credit One Bank, which was subsequently sold or transferred to LVNV Funding, LLC. On April 23, 2018, Credit Control, a debt collector, caused to be delivered to Cartmell a collection letter in an attempt to collect on the debt. As of April 23, 2018, more than six years had elapsed since the last payment or activity on the LVNH Funding debt. At the heart of the dispute in the case -- the Letter failed to inform Cartmell that should he choose one of the payment options and make a payment, such action might revive the statute of limitations for debt-collection purposes, which could expose him to future liability on the debt. Based on this omission, Cartmell asserts causes of action for violations of (1) 15 U.S.C. Section 202f1692e, which prohibits the use of false, deceptive, or misleading representations or means in connection with the collection of any debt, as well as (2) 15 U.S.C. Section 1692f, which prohibits the use of any unfair or unconscionable means to collect any debt. The initial Complaint in the action was filed on April 15, 2019. The counsel appeared before the Court for a Rule 16 initial conference on Aug. 6, 2019, at which time a discovery schedule was put in place. On Aug. 13, 2019, the parties filed a stipulation allowing Cartmell to file an Amended Complaint, which was accepted for filing and remains the operative pleading in the case. There are currently four motions pending before the Court, each with opposition: (i) Credit Control's motion to dismiss the Amended Complaint for lack of subject matter jurisdiction based on Cartmell's failure to establish standing, (ii) Cartmell's motion for class certification, and (iii) both parties' cross-motions for summary judgment. Because protecting against the harm resulting from deceptive or misleading communications was a primary goal of the FDCPA, Judge Leeson finds that a violation of Section 1692e's prohibition on false, deceptive, or misleading communications deprives a debtor of his or her substantive right to truthful information. A debtor who receives a deceptive or misleading communication accordingly need not establish any 'additional harm' to surpass the standing threshold of concrete injury. Cartmell's receipt of Credit Control's collection letter subjected Cartmell to a de facto concrete injury -- the deprivation of his substantive right to truthful information. The final issue that must be (briefly) addressed is the affirmative evidence Credit Control puts forwards: Cartmell's testimony that he understood the debt was beyond the statute of limitations, and that he never intended to pay it. Put simply, it is of no moment that Cartmell did not intend to pay the debt. Congress conferred upon him a substantive right to receive truthful, non-deceptive information, which Credit Control violated when it sent, and Cartmell received, the Letter in the case. Cartmell's receipt of the letter was itself the informational harm the FDCPA was enacted to prevent. For the foregoing reasons, Judge Leeson concludes that Cartmell has alleged facts sufficient to establish his standing to sue, and Credit Control's motion to dismiss is denied. Considering this determination, and in light of the three remaining motions in the case, the Judge will be scheduling the matter for a telephone conference to discuss with the counsel how the case should proceed. A full-text copy of the Court's Jan. 10, 2020 Opinion is available at https://is.gd/hK7Ov5 from Leagle.com. WILLIAM CARTMELL, Plaintiff, represented by ARI H. MARCUS -- Ari@MarcusZelman.com -- MARCUS & ZELMAN LLC & YITZCHAK ZELMAN -- info@marcuszelman.com -- MARCUS ZELMAN LLC, pro hac vice. CREDIT CONTROL, LLC, Defendant, represented by M. BRENT YARBOROUGH -- byarborough@MauriceWutscher.com -- MAURICE WUTSCHER LLP, pro hac vice, SHANNON P. MILLER -- smiller@MauriceWutscher.com -- Maurice Wutscher LLP & THOMAS R. DOMINCZYK -- tdominczyk@MauriceWutscher.com -- MAURICE WUTSCHER, LLP. DAWN FOOD: Howell et al Sue over Collection of Biometric Data ------------------------------------------------------------- ALRIC HOWELL and TELLY WILSON, individually and on behalf of all others similarly situated, Plaintiffs v. DAWN FOOD PRODUCTS, INC., Defendant, Case No. 2020CH02635 (Ill. Cir., Cook Cty., March 3, 2020) is a class action complaint brought against Defendant for its alleged violation of the Biometric Information Privacy Act. According to the complaint, Defendant's employees, including Plaintiffs, were required to scan their fingerprint in Defendant's biometric time tracking system as a means of authentication which possibly exposes employees to serious and irreversible privacy risks, such as identity theft and unauthorized tracking, if a fingerprint database is hacked and breached. The complaint asserts that Defendant disregarded its employees' statutorily protected privacy rights by failing to inform them of the complete purposes of collecting their fingerprints; and to provide them with a written, publicly available retention schedule or guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose is no longer relevant. Plaintiffs seek liquidated damages under BIPA as compensation for the injuries caused by Defendant. Dawn Food Products, Inc. manufactures, wholesales, and distributes bakery products. [BN] The Plaintiffs are represented by: David Fish, Esq. Mara Baltabols, Esq. John Kunze, Esq. THE FISH LAW FIRM, P.C. 200 East Fifth Ave., Ste. 123 Naperville, IL 60563 Tel: 630-355-7590 Fax: 630-778-0400 Emails: dfish@fishlawfirm.com mara@fishlawfirm.com kunze@fishlawfirm.com DELAWARE: District Court Dismisses Abdul-Akbar Civil Rights Suit ---------------------------------------------------------------- Judge Leonard P. Stark of the U.S. District Court for the District of Delaware dismissed the case captioned DEBRO SIDDIQ ABDUL-AKBAR, Plaintiff, v. STATE OF DELAWARE, et al., Defendants, Civ. No. 19-961-LPS (D. Del.). Plaintiff Abdul-Akbar filed the action on May 24, 2019. He requests that the matter proceed as a class action. He appears pro se and has been granted leave to proceed in forma pauperis. The Plaintiff claims jurisdiction based upon the United States Government as a Defendant and a federal question. He lives in the City of Wilmington, Delaware. He alleges that State Defendants are responsible for the educational, correctional, and social services, as well as provision of resources to the community. He alleges that he lives in a mentally debilitating community where poverty has created community trauma, adding that the State of Delaware has repeatedly stated in studies that educational, correctional, and social services systems have failed the people. The Complaint alleges that government officials continue to invest monies in and around poverty-stricken areas but the investments fail to create jobs for local residents and contractors who would hire local residents; it adds that the government has not found a way to create jobs for those suffering community trauma and generational poverty. The Complaint alleges that the State and City own blighted houses and properties in the community, that the properties contribute to poverty and community trauma, and that the properties must be developed in order to treat poverty. The Plaintiff alleges that the CDC and others have declared the City of Wilmington as suffering from community trauma yet the Defendants have failed to put forth a meaningful and effective treatment plan or carried out the recommendations of the CDC. He alleges that those who suffer from mental illness are arrested and detained without treatment, punished by the courts, not rehabilitated while incarcerated, and are then released without treatment and no means of survival, which often leads to a criminal life style. He alleges that because of this he lives in a constant and immediate threat to his life and safety. The Plaintiff alleges deliberate indifference to the welfare of people by the City, State, and Federal government because investments in buildings and companies did not create jobs, reduce generational poverty, or address community trauma and mental illness. The Complaint alleges these actions or inactions have failed the Black community and caused community trauma to the lives of hundreds to thousands of Black youth. The Plaintiff seeks monetary damages as well as injunctive relief. He requests the counsel and has filed a motion for change of venue. While the Court is mindful that the Plaintiff proceeds pro se and is afforded a liberal construction of his pleading, he must allege a deprivation of a right secured by the Constitution or the laws of the United States in order to bring a claim in federal court. Judge Stark can discern no such claim. Moreover, Defendants State of Delaware and the Delaware Department of Justice are immune from suit. In addition, the Complaint fails to allege personal involvement by individual Defendants. An individual government Defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Under the liberal notice pleading standard of Federal Rule of Civil Procedure 8(a), the Plaintiff's Complaint fails to allege facts that, if proven, would show personal involvement by Defendants John Carney and Wilmington Mayor Michael S. Purzycki. Finally, the allegations are conclusory and do not state a facially plausible claim for relief. Accordingly, the Judge will dismiss the Complaint pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i) and (iii). He finds amendment futile. For these reasons, Judge Stark: (1) denied as moot the Plaintiff's request for counsel and motion for change of venue; and (2) dismissed the Complaint as legally frivolous and based upon immunity from suit pursuant to 28 U.S.C. Section 1915(e)(2)(B)(i) and (iii). He finds amendment futile. An appropriate Order follows. A full-text copy of the Court's Feb. 19, 2020 Memorandum Opinion is available at https://is.gd/f4ksqW from Leagle.com. Debro Siddiq Abdul-Akbar, Plaintiff, pro se. DEUTSCHE BANK: Settlement in Securities Suit Gets Initial Approval ------------------------------------------------------------------ Judge Gregory H. Woods of the U.S. District Court for the Southern District of New York preliminarily approved the Class Action Settlement in In re DEUTSCHE BANK AG SECURITIES LITIGATION. This Document Relates To: ALL ACTIONS, Case No. 1:09-cv-01714-GHW-RWL (S.D. N.Y.). On Nov. 11, 2019, the parties entered to the Litigation entered into the Stipulation of Settlement which sets forth the terms and conditions for the proposed settlement of the claims alleged in the complaint on the merits and with prejudice. A Settlement Hearing is set for June 11, 2020, at 4:30 p.m. ET, which is a date at least 100 calendar days from the date of the Order. The Judge approved the form, substance and requirements of: the Notice of Pendency and Proposed Settlement of Class Action; the Proof of Claim and Release form; and the Summary Notice. He appointed Gilardi & Co. LLC as the Claims Administrator. Within 14 calendar days of the entry of the Order, the Claims Administrator will cause the Notice and the Proof of Claim to all Class Members who can be identified with reasonable effort, and to be posted on its website at www.DeutscheBankSecuritiesSettlement.com. The Claims Administrator will use reasonable efforts to give notice to nominee purchasers such as brokerage firms and other persons or entities who purchased or otherwise acquired securities in the Class Offerings as record owners but not as beneficial owners. Such nominee purchasers are directed, within seven business days of their receipt of the Notice, to either forward copies of the Notice and Proof of Claim to their beneficial owners or to provide the Claims Administrator with lists of the names and addresses of the beneficial owners, and the Claims Administrator is ordered to send the Notice and Proof of Claim promptly to such identified beneficial owners. The Lead Counsel will, at least seven calendar days prior to the Settlement Hearing, file with the Court proof of mailing of the Notice and Proof of Claim. All fees, costs, and expenses incurred in identifying and notifying Members of the Class will be paid from the Settlement Fund and in no event will any of the Released Persons bear any responsibility for such fees, costs, or expenses. The Escrow Agent or its agents are authorized and directed to prepare any tax returns required to be filed on behalf of or in respect of the Settlement Fund, to cause any Taxes due and owing to be paid from the Settlement Fund, and to otherwise perform all obligations with respect to Taxes and any reporting or filings in respect thereof as contemplated by the Stipulation without further order of the Court. The Lead Counsel will submit their papers in support of final approval of the Settlement and application for an award of attorneys' fees and expenses, by no later than May 7, 2020 (a date 35 calendar days prior to the Settlement Hearing). All reply papers in support of such motions will be filed and served by no later than June 4, 2020 (a date seven calendar days prior to the Settlement Hearing). The Claims Administrator will cause the Summary Notice to be published once in the national edition of The Wall Street Journal and once over Business Wire within seven calendar days of the Notice Date. The Lead Counsel will, at least seven calendar days prior to the Settlement Hearing, file with the Court proof of the publication of the Summary Notice. The Class Members who wish to participate in the Settlement will complete and submit Proofs of Claim in accordance with the instructions contained therein. Unless the Court orders otherwise, all Proofs of Claim must be postmarked or submitted electronically no later than 90 calendar days from the Notice Date. Any Class Member who does not timely submit a Proof of Claim within the time provided for, will be barred from sharing in the distribution of the proceeds of the Settlement Fund, unless otherwise ordered by the Court. Notwithstanding the foregoing, Lead Counsel may, in their discretion, accept late-submitted claims for processing by the Claims Administrator so long as distribution of the Net Settlement Fund to Authorized Claimants is not materially delayed thereby. A putative Class Member wishing to make such request will mail the request to the Claims Administrator no later than May 21, 2020 (a date 21 calendar days prior to the Settlement Hearing), to the address designated in the Notice. The Lead Counsel will cause to be provided to Deutsche Bank's counsel copies of all requests for exclusion, and any written revocation of requests for exclusion, within the sooner of three days of the Lead Counsel's receipt or seven days prior to the Settlement Hearing. Objections to the Settlement, the Plan of Allocation, the application by or on behalf of Lead Counsel for an award of attorneys' fees and expenses, or any application by the Class Plaintiffs for an amount pursuant to 15 U.S.C. Section77z-1(a)(4) in connection with their representation of the Class in the Litigation, and any supporting papers will be filed with the Court on May 21, 2020 (a date 21 calendar days prior to the Settlement Hearing). Any Class Member may enter an appearance in the Litigation, at their own expense, individually or through counsel of his/her/its own choice. If he/she/it does not enter an appearance, he/she/it will be represented by the Lead Counsel. All funds held by the Escrow Agent will remain subject to the jurisdiction of the Court until such time as such funds will be distributed pursuant to the Order, the Plan of Allocation and/or further orders of the Court. As provided in the Stipulation, the Escrow Agent may pay the Claims Administrator out of the Settlement Fund the reasonable fees and costs associated with giving notice to the Class, the review of claims and the administration of the Settlement without further order of the Court. In the event the Settlement is not approved by the Court, or otherwise fails to become effective, neither the Class Plaintiffs nor the Lead Counsel will have any obligation to repay to Defendants the reasonable and actual costs of class notice and administration. A full-text copy of the Court's Feb. 26, 2020 Order is available at https://is.gd/0u9dVm from Leagle.com. Norbert G. Kaess, Plaintiff, represented by Brian Philip Murray -- bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Eva Hromadkova, Frank LLP, Kevin S. Sciarani -- ksciarani@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay & Murray LLP, pro hac vice, Samuel Howard Rudman -- srudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Andrew J. Brown -- andrewb@rgrdlaw.com - - Robbins Geller Rudman & Dowd LLP, pro hac vice, Deborah R. Gross, Law Offices Bernard M Gross, P.C., pro hac vice, Lucas F. Olts -- lolts@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Mario Alba, Jr. -- malba@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Eric I. Niehaus -- ericn@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Belmont Holdings Corp., Lead Plaintiff, represented by Kevin S. Sciarani, Robbins Geller Rudman & Dowd LLP, Lee Albert, Glancy Prongay & Murray LLP, pro hac vice, Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP, Andrew J. Brown, Robbins Geller Rudman & Dowd LLP, pro hac vice,Christopher D. Stewart -- cstewart@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, David Avi Rosenfeld -- drosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Deborah R. Gross, Law Offices Bernard M Gross, P.C., pro hac vice, Lucas F. Olts, Robbins Geller Rudman & Dowd LLP, Mario Alba, Jr., Robbins Geller Rudman & Dowd LLP & Eric I. Niehaus, Robbins Geller Rudman & Dowd LLP. Maria Farruggio, Plaintiff, represented by Brian Philip Murray, Glancy Prongay & Murray LLP, Eva Hromadkova, Frank LLP, Kevin S. Sciarani, Robbins Geller Rudman & Dowd LLP, Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP, Andrew J. Brown, Robbins Geller Rudman & Dowd LLP, pro hac vice, Deborah R. Gross, Law Offices Bernard M Gross, P.C., pro hac vice, Lucas F. Olts, Robbins Geller Rudman & Dowd LLP, Mario Alba, Jr., Robbins Geller Rudman & Dowd LLP & Eric I. Niehaus, Robbins Geller Rudman & Dowd LLP. Edward P. Zemprelli, Plaintiff, represented by Andrew J. Brown, Robbins Geller Rudman & Dowd LLP, pro hac vice, David Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP, Deborah R. Gross, Law Offices Bernard M Gross, P.C., pro hac vice, Eric I. Niehaus, Robbins Geller Rudman & Dowd LLP, pro hac vice, Lucas F. Olts, Robbins Geller Rudman & Dowd LLP, Christopher D. Stewart, Robbins Geller Rudman & Dowd LLP, pro hac vice, Darren J. Robbins -- darrenr@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, pro hac vice, Mario Alba, Jr., Robbins Geller Rudman & Dowd LLP, Matthew Montgomery, Robbins Geller Rudman & Dowd LLP & Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP. Plumbers' Union Local No. 12 Pension Fund, Plaintiff, represented by Eric I. Niehaus, Robbins Geller Rudman & Dowd LLP. Shirley Bachrach, Plaintiff, represented by Darren J. Robbins, Robbins Geller Rudman & Dowd LLP, pro hac vice, David Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP, Mario Alba, Jr., Robbins Geller Rudman & Dowd LLP, Matthew Montgomery, Robbins Geller Rudman & Dowd LLP, Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP, Christopher D. Stewart, Robbins Geller Rudman & Dowd LLP, pro hac vice & Deborah R. Gross, Law Offices Bernard M Gross, P.C., pro hac vice. George Gerson, Plaintiff, represented by David Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP, Mario Alba, Jr., Robbins Geller Rudman & Dowd LLP,Christopher D. Stewart, Robbins Geller Rudman & Dowd LLP, pro hac vice &Deborah R. Gross, Law Offices Bernard M Gross, P.C., pro hac vice. Ridge Oak Management, Inc, Plaintiff, represented by Harry J. Weiss. Deutsche Bank AG, Deutsche Bank Capital Funding Trust VIII, Deutsche Bank Capital Funding LLC VIII, Deutsche Bank Capital Funding Trust X, Deutsche Bank Capital Funding LLC X, Josef Ackermann, Anthony Di Iorio, Banziger Hugo, Tessen Von Heydebreck, Hermann-Josef Lamberti, Martin Edelmann, Peter Sturzinger, Detlef Bindert, Jonathan Blake, Marco Zimmermann, Deutsche Bank Securities Inc., Deutsche Bank Capital Funding Trust IX, Deutsche BankD Capital Funding LLC IX, Rainer Rauleder, Deutsche Bank Contingent Capital Trust III, Deutsche Bank Contingent Capital LLC III, Deutsche Bank Contingent Capital Trust II, Deutsche Bank Contingent Capital LLC II, represented by Charles Alan Gilman -- cgilman@cahill.com -- Cahill Gordon & Reindel LLP & David George Januszewski -- djanuszewski@cahill.com -- Cahill Gordon & Reindel LLP. UBS Securities LLC, Citigroup Global Markets, Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Wachovia Capital Markets, LLC, Morgan Stanley & Co. Incorporated, Banc of America Securities LLC, Defendants, represented by Jay B. Kasner -- jay.kasner@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP & Scott D. Musoff -- scott.musoff@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP. Deutsche Bank Contingent Captial Trust III, Deutsche Bank Contingent Captial Trust V, Deutsche Bank Contingent Captial LLC V, Defendant, represented by Charles Alan Gilman, Cahill Gordon & Reindel LLP. DEVA CONCEPTS: Sells Fraudulent No-Poo Cosmetic, Calabrese Alleges ------------------------------------------------------------------ TONIA A. CALABRESE, individually and on behalf of others similarly situated, Plaintiff v. DEVA CONCEPTS, LLC, d/b/a DEVACURL, Defendant, Case No. 4:20-cv-00042 (E.D.N.C., March 3, 2020) is a civil class action complaint brought against Defendants for its alleged deceptive marketing, advertising, sale and distribution of DevaCurl's No-Poo Products throughout the U.S. According to the complaint, Defendant markets the No-Poo Product as a "first-of-its-kind, no-suds conditioning cleanser" that is "free of sulfates, parabens, and silicones", that is used to "gently cleanse curls without stripping the natural oils they need to look healthy, bouncy and simply gorgeous", and "allows your scalp to regulate, and your hair to become more what nature intended", thereby convincing consumers to purchase and use the product over a traditional shampoo. However, thousands of consumers, including Plaintiff, have reported their hair failing out shortly after or during actual use of the product such scalp irritation, excessive shedding, hair loss, thinning, relaxing of curl, breakage, and/or balding. The case asserts that Defendant failed to provide warning and disclose the defective nature of its products. The complaint alleges Breach of Express Warranty, Breach of Implied Warranty of Merchantability, violation of Magnuson-Moss Warranty Act, unjust enrichment, negligence for failure to warn the consumers, negligence for failure to test the products before marketing, and violation of the North Carolina Unfair and Deceptive Trade Practices Act. The North Carolina Unfair and Deceptive Trade Practices Act prohibits the use of unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce. Deva Concepts, LLC formulates, manufactures, advertises, and sells DevaCurl's No-Poo Products, a personal cosmetics, throughout the U.S., including in the State of North Carolina. [BN] The Plaintiff is represented by: Joel R. Rhine, Esq. Martin A. Ramey, Esq. Dara A. Damery, Esq. RHINE LAW FIRM, P.C. 1612 Military Cutoff, Suite 300 Wilmington, NC 28403 Tel: (910)772-9960 DIRECTV LLC: 11th Cir. Flips Denial of Arbitration Bid in Cordoba ----------------------------------------------------------------- The U.S. Court of Appeals for the Eleventh Circuit reversed the district court's order denying DIRECTV's motion to compel arbitration in the case, SEBASTIAN CORDOBA, et al., Plaintiffs-Appellees, v. DIRECTV, LLC, Defendant-Appellant, Case No. 18-14832 (11th Cir.) In 2015, Plaintiff Cordoba filed a putative class action against DIRECTV, alleging violations of the Telephone Consumer Protection Act ("TCPA"). During the course of that underlying litigation and in preparing its defense, DIRECTV allegedly shared its customers' personal information with its expert witness, Debra Aron. Specifically, DIRECTV is alleged to have created a data file containing, among others, certain customers' accounts numbers, first and last names, account creation dates, and home and business telephone numbers. Plaintiff Rene Romero alleges that such disclosure was nonconsensual, and therefore, in violation of the Satellite Television Extension and Localism Act of 2010 ("STELA"). On May 30, 2018, the district court granted Cordoba's motion for leave to file a Third Amended Complaint, which added Romero as an additional Plaintiff and a class representative for the STELA claim. DIRECTV responded by moving to compel arbitration under the arbitration provision in Romero's 2016 Customer Agreement -- or, in the alternative, under the 2014 or 2015 versions of the Customer Agreement. The district court denied DIRECTV's motion. It found that while Romero accepted the arbitration clause in the 2016 Customer Agreement, the arbitration provision therein did not encompass Romero's STELA claims. The Federal Arbitration Act requires that the controversy arise out of the contract between the parties" and that DIRECTV had not established that Romero's claim arises from the 2016 Agreement. Therefore, the court held, Romero's STELA claim is not covered by the Agreement's arbitration provision. The appeal followed. Without addressing the more general question of whether the relevant arbitration provision is in fact enforceable as to "all claims and disputes" as DIRECTV contends, the Eleventh Circuit finds -- based on the limited facts of the matter -- that Romero's STELA claim indeed falls within its purview. The arbitration provision expressly governs claims arising out of or relating to any aspect of the relationship between the parties. Romero's STELA claim is a direct derivative of his "relationship" with DIRECTV. Romero alleges that DIRECTV violated Section 338(i)(4) of STELA, which prohibits a "satellite carrier" from the nonconsensual disclosure of "personally identifiable information concerning any subscriber." Romero is a paying subscriber of DIRECTV. That is the entirety of the relationship between the two. If not for Romero's subscriber relationship with DIRECTV, the factual allegations underlying his claim would be non-existent -- DIRECTV would not have his information to share. The subscriber relationship both predicates Romero's STELA claim and delineates the "relationship" referenced and governed by the Customer Agreement's arbitration provision. Accordingly, Romero's STELA claim necessarily arises out of his relationship with DIRECTV as contemplated by the arbitration clause. Simply put, without the subscriber relationship, Romero has no STELA claim. Therefore, because of that relationship, such STELA claim is subject to arbitration, rules the Eleventh Circuit. Because Romero's STELA claim is governed by the Customer Agreement's arbitration provision, the district court erred in denying DIRECTV's motion to compel arbitration, the Eleventh Circuit held. Accordingly, the district court ruling is reversed and remanded. A full-text copy of the Eleventh Circuit's Feb. 19, 2020 Order is available at https://is.gd/km3qLv from Leagle.com. L. Lin Wood -- lwood@linwoodlaw.com -- for Plaintiff-Appellee. Archis Ashok Parasharami, for Defendant-Appellant. Evan Mark Tager, for Defendant-Appellant. Jonathan D. Selbin -- jselbin@lchb.com -- for Plaintiff-Appellee. John P. Jett -- jjett@kilpatricktownsend.com -- for Defendant-Appellant. Andrew John Pincus -- apincus@mayerbrown.com -- for Defendant-Appellant. Matthew M. Wilkins -- mwilkins@kingyaklin.com -- for Plaintiff-Appellee. Michael Joseph Boyle, Jr. -- mboyle@meyerwilson.com -- for Plaintiff-Appellee. Matthew R. Wilson -- mwilson@meyerwilson.com -- for Plaintiff-Appellee. Jonathan David Grunberg -- jgrunberg@linwoodlaw.com -- for Plaintiff-Appellee. G. Taylor Wilson -- twilson@linwoodlaw.com -- for Plaintiff-Appellee. John E. Muench -- jmuench@mayerbrown.com -- for Defendant-Appellant. Hans J. Germann -- hgermann@mayerbrown.com -- for Defendant-Appellant. Kyle J. Steinmetz -- ksteinmetz@mayerbrown.com -- for Defendant-Appellant. Ava J. Conger -- aconger@kilpatricktownsend.com -- for Defendant-Appellant. Nicole Jennings Wade -- nwade@linwoodlaw.com -- for Plaintiff-Appellee. Douglas I. Cuthbertson -- dcuthbertson@lchb.com -- for Plaintiff-Appellee. Daniel Morris Hutchinson -- dhutchinson@lchb.com -- for Plaintiff-Appellee. Stephen A. Yaklin -- syaklin@kingyaklin.com -- for Plaintiff-Appellee. EDDIE BAUER: Settlement in Veridian Suit Has Final Approval ----------------------------------------------------------- In the case, VERIDIAN CREDIT UNION, on behalf of itself and a class of similarly situated financial institutions, Plaintiff, v. EDDIE BAUER LLC, Defendant, Case No. 2:17-cv-00356-JLR (W.D. Wash.), Judge James L. Robart of the U.S. District Court for the Western District of Washington, Seattle, granted the Plaintiff's Motion for Final Approval of the Class Action Settlement. On June 12, 2019, the Court entered an order granting preliminary approval of the Settlement between Veridian, on its own behalf and on behalf of the Settlement Class, and the Defendant, as memorialized in Exhibit A (ECF No. 164-1) to Plaintiff's Unopposed Motion for Preliminary Approval of Class Action Settlement. On Sept. 20, 2019, the Plaintiff filed its Motion for Final Approval of the Class Action Settlement and accompanying Joint Declaration of Gary F. Lynch and Joseph P. Guglielmo, along with supporting exhibits; and the Class Counsel filed their Motion for an Award of Attorneys' Fees and Reimbursement of Expenses and accompanying declarations from counsel of record in the Litigation setting forth their time and expenses and related exhibits. On Oct. 25, 2019, the Court held a Final Approval Hearing. Having determined that the Settlement is fair, adequate, and reasonable; and having considered the Fee Application, Judge Robart granted the Plaintiff's Final Approval Motion, and the Class Counsel's Fee Application. The Court granted final approval of the Settlement, including, but not limited to, the releases in the Settlement and the plans for distribution of the Settlement relief. The Parties will effectuate the Settlement in accordance with its terms. A list of those putative Settlement Class Members who have timely and validly elected to opt-out of the Settlement and Settlement Class, in accordance with the requirements in the Settlement, has been submitted to the Court in the Declaration of Christopher D. Amundson, filed in advance of the Final Approval Hearing. The persons and/or entities listed in Exhibit A are not bound by the Settlement, the Final Approval Order and Judgment, and are not entitled to any of the benefits under the Settlement. The Opt-Out Members listed in Exhibit A will be deemed not to be Releasing Parties. For purposes of the Settlement and the Final Approval Order and Judgment, the Court finally certified for settlement purposes only the following Settlement Class: All banks, credit unions, financial institutions, and other entities in the United States (including its Territories and the District of Columbia) that issued Alerted on Payment Cards. The Court granted Final Approval to the appointment of (i) the Plaintiff as the Settlement Class Representative; and (ii) pursuant to Rule 23(g), of Joseph P. Guglielmo of Scott+Scott Attorneys at Law LLP and Gary F. Lynch of Carlson Lynch LLP as the Class Counsel. The Settlement Administrator's fees, as well as all other costs and expenses associated with Notice and Claims Administration, will continue to be paid by Eddie Bauer as provided in the Settlement. Pursuant to Rule 23(h), and relevant Ninth Circuit authority, the Court awarded the Class Counsel $2 million as an award of reasonable attorneys' fees, costs, and expenses to be paid in accordance with the Settlement. This amount will also cover the Costs of Settlement Administration, which was previously approved by the Court, and the requested Service Award. The award of attorneys' fees, costs, and expenses, and any interest earned thereon, will be paid in accordance with the Settlement. The Court granted the Class Counsel's request for a Service Award and awards $10,000 to the Plaintiff. The Service Award will be paid by Eddie Bauer in accordance with the Settlement. The Court dismissed the Litigation and Complaint and all claims therein on the merits and with prejudice, without fees or costs to any party, except as provided in the Final Approval Order and Judgment. A full-text copy of the Court's Oct. 25, 2019 Order is available at https://is.gd/MyTC14 from Leagle.com. Veridian Credit Union, on behalf of itself and a class of similarly situated financial institutions, Plaintiff, represented by Arthur Mahony Murray , MURRAY LAW FIRM, pro hac vice, Brian C. Gudmundson -- brian.gudmundson@zimmreed.com -- ZIMMERMAN REED LLP, pro hac vice, Bryan L. Bleichner -- bbleichner@chestnutcambronne.com -- CHESTNUT CAMBRONNE PA, pro hac vice, Caroline Thomas White, MURRAY LAW FIRM, pro hac vice, Chase Christian Alvord -- calvord@tousley.com -- TOUSLEY BRAIN STEPHENS, Christopher P. Renz -- crenz@chestnutcambronne.com -- CHESTNUT CAMBRONNE PA, pro hac vice, Erin Green Comite --ECOMITE@SCOTT-SCOTT.COM -- SCOTT + SCOTT LLP, pro hac vice, Gary F. Lynch --glynch@carlsonlynch.com -- CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP, pro hac vice -- JGUGLIELMO@SCOTT-SCOTT.COM -- SCOTT + SCOTT, ATTORNEYS AT LAW, LLP, pro hac vice, Karen H. Riebel -- khriebel@locklaw.com -- LOCKRIDGE GRINDAL NAUEN, pro hac vice, Kate M. Baxter-Kauf -- kmbaxter-kauf@locklaw.com -- LOCKRIDGE GRINDAL NAUEN, pro hac vice, Kevin W. Tucker -- ktucker@carlsonlynch.com -- CARLSON LYNCH SWEET KILPELA & CARPENTER LLP, pro hac vice, Kim D. Stephens -- kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS & Sean C. Russell -- SEAN.RUSSELL@SCOTT-SCOTT.COM -- SCOTT + SCOTT LLP, pro hac vice. Eddie Bauer LLC, Defendant, represented by Dyanne Cho -- Dyanne.Cho@lewisbrisbois.com --LEWIS BRISBOIS BIGAARD & SMITH LLP, pro hac vice, Gordon Calhoun -- Gordon.Calhoun@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH LLP, pro hac vice, Jon P. Kardassakis -- Jon.Kardassakis@lewisbrisbois.com -- LEWIS BRISBOIS BIGAARD & SMITH LLP, pro hac vice, Ethan A. Smith -- Ethan.Smith@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH LLP, Kathleen A. Nelson -- Kathleen.Nelson@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH LLP & Sarah Demaree Macklin -- Sarah.Macklin@lewisbrisbois.com -- LEWIS BRISBOIS BISGAARD & SMITH LLP. ENERGY TRANSFER: Institutional Investor Group Named Lead Plaintiff ------------------------------------------------------------------ In the case, ALLEGHENY COUNTY EMPLOYEES' RETIREMENT SYSTEM, individually and on behalf of others similarly situated, Plaintiffs, v. ENERGY TRANSFER LP, KELCY L. WARREN, JOHN W. McREYNOLDS, and THOMAS E. LONG, Defendants, Civil Action No. 20-200 (E.D. Pa.), Judge Gerald Austin McHugh of the U.S. District Court for the Eastern District of Pennsylvania (i) granted the Institutional Investor Group's Motion for Appointment of Lead Plaintiff, and (ii) denied Public Employees Retirement Association of New Mexico's. The case is a putative class action filed against Energy Transfer and two of its senior executives for securities fraud under Sections 10(b) and 20(a) of the Securities Exchange Act -- as amended by the Private Securities Litigation Reform Act of 1995 ("PSLRA") -- and SEC Rule 10b-5. Energy Transfer is a Dallas-based energy transportation and storage company that operates some of the largest oil and gas pipelines in the United States. Among its projects is the Mariner East pipeline. Mariner East is a multibillion-dollar, 350-mile pipeline that carries "highly volatile natural gas liquids" from the Marcellus and Utica Shales areas in western Pennsylvania, West Virginia, and eastern Ohio across Pennsylvania to, among other places, Energy Transfer's Marcus Hook Industrial Complex on the Delaware River. There the gas liquid is processed, stored, and distributed to domestic and international markets. The first phase of the project, Mariner East 1, consisted of interstate and intrastate propane and ethane service which commenced operations in late 2014 and early 2016, respectively. The second phase of the project, named Mariner East 2, proposed transporting natural-gas liquids across Pennsylvania to a terminal in Marcus Hook, just outside Philadelphia. According to the Plaintiffs, Energy Transfer had a difficult time securing approval for the second phase because of permit application deficiencies and public concern over the environmental impact of the project. Nevertheless, the Pennsylvania Department of Environmental Protection approved the second phase of the project in early February 2017. Energy Transfer began construction on Mariner East 2 quickly thereafter, and the project became operational in December 2018. In November 2019, the Associated Press reported that the FBI had begun a corruption investigation into how Gov. Tom Wolf's administration came to issue permits for construction on a multibillion-dollar pipeline project to carry highly volatile natural gas liquids across Pennsylvania. In the main, the FBI seems to have been examining whether Governor Wolf's administration inappropriately pushed its staff to approve construction permits for the pipeline, and whether those staff received anything of value in return. Over the two trading days following the A.P.'s report, the share price of Energy Transfer fell nearly 7%. Lawsuits followed swiftly, first in the Northern District of Texas and then in this District. In the Complaint filed in the District, the Plaintiffs assert violations of the federal securities laws arising from Energy Transfer's allegedly false or misleading statements about, among other things, its role in obtaining permits for the Mariner East pipeline, as well as its compliance with its internal Code of Business Conduct and Ethics. The Complaint charges that Energy Transfer and certain of its senior executives failed to disclose that the permits received to commence work on the Mariner East pipeline project in Pennsylvania were secured through bribes or other improprieties, which would have increased the risk that Energy Transfer or certain of its employees would be subject to government or regulatory action. Presently pending before the Court are competing Motions for Appointment as Lead Plaintiff and Approval of Selection of Lead Counsel. One Motion was filed by a collection of retirement and pension funds, consisting of the Allegheny County Employees' Retirement System, the Employees' Retirement System of the City of Baton Rouge and Parish of East Baton Rouge, the Denver Public Employees Retirement Plan, the IAM National Pension Fund, and the Iowa Public Employees' Retirement System ( "Institutional Investor Group"). The other Motion was filed by New Mexico. Both parties argue that they are the "most adequate Plaintiff" as that term is used in the PSLRA and defined in the case law, and it is a case where the parties rely on the same authorities but use them to reach opposite conclusions. Judge McHugh finds that the Institutional Investor Group collectively purchased 8,722,995 shares of Energy Transfer stock during the putative class period, while New Mexico purchased roughly a third of that number, at 2,959,365. The total net funds expended by the Institutional Investor Group during the period was $103,145,535, while that number for New Mexico was $42,836,907. Thus, all three of the Cendant factors weigh squarely in favor of the Institutional Investor Group. Because the Institutional Investor Group has shown that it has the largest financial interest in the relief sought in the action, Judge McHugh must now examine whether it otherwise satisfies the requirements of Rule 23. He finds that the Institutional Investor Group has demonstrated that it satisfies both prongs of Rule 23. First, the Institutional Investor Group is a collection of typical Plaintiffs. Second, it will adequately represent the class. Third, it has made a successful preliminary showing of adequacy and typicality, and that it is the most adequate Lead Plaintiff for the present action. Under the PSLRA, once a court determines which prospective lead plaintiff is most adequate, another movant has the opportunity to present evidence in rebuttal. The presumption may be rebutted only upon proof by a member of the purported plaintiff class that the presumptively most adequate plaintiff -- (aa) will not fairly and adequately protect the interests of the class; or (bb) is subject to unique defenses that render such plaintiff incapable of adequately representing the class. Neither New Mexico nor any other putative class member has presented proof that the Institutional Investor Group will not fairly or adequately protect the interests of the class, nor has any argued that the Group is subject to any unique defenses in the underlying action. The presumption that the Institutional Investor Group's is the most adequate Plaintiff is controlling. The Institutional Investor Group has selected Barrack, Rodos & Bacine and Bernstein Litowitz Berger and Grossmann LLP as the Lead Counsel as the co-lead counsel. While New Mexico raises concerns about the appointment of multiple law firms in these actions, courts have not taken issue with two firms sharing lead counsel responsibilities when they are assured of their competency and experience. Both Barrack, Rodos & Bacine and Bernstein Litowitz Berger and Grossmann LLP have substantial experience litigating complex securities class actions, and seem well positioned to do so here. With respect to co-counsel, Judge McHugh expects that there will be no duplication of attorneys' services, and that the use of co-lead counsel will not in any way lead to an increase in attorneys' fees or expenses. For the reasons set forth, Judge McHugh granted the Institutional Investor Group's Motion for Appointment of Lead Plaintiff, and denied New Mexico's. He appointed (i) the Institutional Investor Group as the Lead Plaintiff, and (ii) the Lead Plaintiff's selection of the law firms of Barrack, Rodos & Bacine and Bernstein Litowitz Berger and Grossmann LLP as the Lead Counsel. An appropriate Order follows. A full-text copy of the Court's Feb. 19, 2020 Memorandum Opinion is available at https://is.gd/x3jBzy from Leagle.com. ALLEGHENY COUNTY EMPLOYEES' RETIREMENT SYSTEM, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiff, represented by JAMES M. FICARO, THE WEISER LAW FIRM PC, MARK S. GOLDMAN -- mgoldman@labaton.com -- GOLDMAN SCARLATO & PENNY PC, JACOB A. GOLDBERG -- jgoldberg@rosenlegal.com -- THE ROSEN LAW FIRM, JEFFREY W. GOLAN, BARRACK RODOS & BACINE, LAWRENCE F. STENGEL -- lfs@saxtonstump.com -- SAXTON STUMP & ROBERT A. HOFFMAN, BARRACK, RODOS & BACINE. ENERGY TRANSFER LP, KELCY L. WARREN, JOHN W. MCREYNOLDS & THOMAS E. LONG, Defendants, represented by CURTIS J. CROWTHER -- ccrowther@ycst.com -- YOUNG CONAWAY STARGATT & TAYLOR LLP. ERMINIA RESTAURANT: Barcenas Sues over Tip Pooling -------------------------------------------------- RICARDO BARCENAS, on behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiffs v. ERMINIA RESTAURANT CORP. a/k/a ERMINIA CORP d/b/a LATTANZI RESTAURANT, VITTORIO LATTANZI, and FRANCO PAUL LATTANZI, Defendants, Case No. 1:20-cv-01924 (S.D.N.Y., March 4, 2020) is a class and collective action complaint brought against Defendants for their alleged violations of the Fair Labor Standards Act and New York Labor Law. Plaintiff began employment with Defendants on or around November 1, 2019, as a Waiter for Defendants' restaurants and was scheduled to work six-hour days during his training period -- the first three days of his employment. According to the complaint, Plaintiff worked as a bartender, dishwasher and waiter for approximately 24 hours per week for $10.00 per hour from on or about November 4, 2019 until Plaintiff's termination on January 10, 2020. Throughout the remainder of his employment, Plaintiff only earned tips during periods he was engaged as a waiter but were distributed by Defendants according to a tip-pool arrangement. The complaint asserts that Defendants: -- failed to properly provide tip credit notice in violation of the FLSA; -- failed to inform Plaintiffs that the tip credit claimed by Defendants cannot exceed the amount of tips actually received by Plaintiffs in violation of the FLSA; -- failed to inform that all tips received by Plaintiffs are to be retained by Defendants except pursuant to a valid tip pooling arrangement in violation of the FLSA; -- failed to inform the tip credit will not apply unless they have been informed of the foregoing tip credit notice requirement in violation of the FLSA; -- claimed tip credit for all hours worked despite having caused tipped employees to engage in non-tipped duties for hours exceeding 20% of the total hours worked each workweek in violation of the FLSA and NYLL; -- illegally retained gratuities; -- implemented an invalid tip pooling because Defendants retained tips; -- failed to accurately track daily tips earned or maintain records thereof; -- failed to properly provide tip credit notice at hiring and annually thereafter in violation of the NYLL; and -- failed to properly provide a proper wage statement with payment of wages informing Plaintiff and other tipped employees of the amount of tip credit deducted for each payment period. Vittorio Lattanzi and Franco Paul Lattanzi are owners and operators of Lattanzi Restaurant located at 361 West 46th Street, New York, NY 10013. Erminia Restaurant Corp. a/k/a Erminia Corp d/b/a Lattanzi Restaurant is a corporate Italian restaurant. [BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 148 West 24th Street, 8th Floor New York, NY 10011 Tel: 212-465-1188 Fax: 212-465-1181 Website: http://www.leelitigation.com GEICO: Underpays Vehicle Insurance Claims, Angell et al. Allege --------------------------------------------------------------- PHILIP ANGELL, STEVEN BROWN, TONNIE BECK, TAMMY MORRIS, and DAWN BURNHAM, individually and on behalf of all similarly situated, Plaintiffs v. GEICO ADVANTAGE INSURANCE COOMPANY, GEICO INDEMNITY COMPANY, GOVERNMENT EMPLOYEES INSURANCE COMPANY, GEICO COUNTY MUTUAL INSURANCE COMPANY, and GEICO CHOICE INSURANCE COMPANY, Defendants, Case No. 4:20-cv-00799 (S.D. Tex., March 5, 2020) is a class action lawsuit brought against Defendants for their alleged breach of insurance policies on the first-party total loss claims. The Geico Insurance Policy provides comprehensive and collision coverage with a coverage limit of actual cash value. Plaintiffs are owner of the vehicles insured by the Defendants: -- Brown insured his 2016 Toyota Tacoma SR5 under a Policy issued by GEICO Indemnity; -- Angell insured a 2015 Lexus RC 350 under the Policy issued by GEICO Advantage. -- Beck insured a 2015 Ford Escape under the policy issued by Government Employees; -- Morris insured a 2007 BMW 550I under the policy issued by GEICO County; -- Burnham insured a 2012 Chevrolet Cruze LS under the policy issued by GEICO Choice. The lawsuit asserts that Defendants failed to provide coverage for the full actual cash value of insured vehicles and pay the "replacement costs" mandated by Texas law, including sales tax, title transfer fees, and fees for registration, inspection, and emissions. Plaintiffs seek compensatory damages in amounts owed under the Policies; injunctive relief to prevent continuation of Defendants' illegal practice; for all other damages according to proof; 18% interest on all amounts owed pursuant to Texas Insurance Code 542.051; for attorneys' fees and expenses as appropriate pursuant to applicable law, including Texas Civil Practice & Remedies Code Sec. 38.001 and Texas Insurance Code 542.051; and for other costs and forms of relief. All Defendants operate under the GEICO brand, insure under the same policy forms, and have the same practices and procedures with regard to insuring and adjusting total loss claims. [BN] The Plaintiffs are represented by: Richard Daly, Esq. John Scott Black, Esq. DALY & BLACK, P.C. 2211 Norfolk St., Ste. 800 Houston, TX 77098 Tel: (713)655-1405 Fax: (713)655-1587 Emails: ecfs@dalyblack.com rdaly@dalyblack.com jblack@dalyblack.com - and - Angelica Gentile, Esq. SHAMIS & GENTILE 14 NE 1st Ave., Suite 1205 Miami, FL 33132 Tel: 305-479-2299 Email: agentile@shamisgentile.com - and - Edmund A. Normand, Esq. Jacob L. Phillips, Esq. NORMAND PLLC Orlando, FL 32814-0036 Tel: 407-603-6031 Emails: firm@ednormand.com ed@ednormand.com jacob.phillips@normandpllc.com - and - Scott Edelsberg, Esq. EDELSBERG LAW 19495 Biscayne Blvd #607 Aventura, FL 33180 Tel: (305) 975-3320 Email: scott@edelberglaw.com - and - Christopher B. Hall, Esq. HALL & LAMPROS, LLP 400 Galleria Parkway, Suite 1150 Atlanta, GA 30339 Tel: (404)876-8100 Fax: (404)876-3477 Email: chall@hallandlampros.com - and - Bradley W. Pratt, Esq. PRATT CLAY LLC 4401 Northside Parkway, Suite 520 Atlanta, GA Tel: (404)949-8118 Fax: (404)949-8159 Email: Bradley@prattclay.com GERON CORP: Misleads Investors on IMbark Test Result, Pfeifer Says ------------------------------------------------------------------ KEVAN PFEIFER, individually and on behalf of all others similarly situated, Plaintiff v. GERON CORPORATION, JOHN A. SCARLETT and OLIVIA K. BLOOM, Defendants, Case No. 2:20-cv-02424 (D.N.J., March 5, 2020) is a securities class action complaint brought against Defendants for their alleged materially false and misleading public statements in violation of the Securities Exchange Act of 1934. According to the complaint, Geron partnered with Janssen Biotech Inc., a division of Johnson & Johnson, for the development of imetelstat pursuant to a Collaboration and License Agreement that became effective on December 15, 2014, upon which Geron received a $35 million upfront payment from Janssen. Janssen's decision to collaborate with Geron was based on the results of IMbark Phase 2 trial conducted under the supervision of a Joint Steering Committee consisting of both Geron and Janssen employees. However, the IMbark Phase 2 Trial result was a failure. On March 19, 2018, Geron held a conference call with investors, analysts, and the media wherein Defendant Scarlett discussed the median overall survival of patients in the IMbark study and suggested that the IMbark study supported the conclusion that imetelstat lengthened the lives of patients with myelofibrosis. The complaint claims that Scarlett failed to disclose the failure to reach the primary endpoints of the study: namely, spleen response rates and reduction in TSS, thereby misleading investors regarding imetelstat and the results from the IMbark trial. Imetelstat was Geron's one major asset and hoped to inhibit telomerase, a ribonucleoprotein implicated in cell death and longevity that is found in most cancer cells, as a potential means for treating certain blood cancers. Plaintiff Pfeifer purchased Geron securities during the Class Period and has been damaged thereby. John A. Scarlett was CEO and President of Geron and Olivia K. Bloom was Geron's CFO. Both ran the company as hands-on managers overseeing Geron's operations and finances and were intimately involved in deciding which disclosures would be made by Geron. Geron Corporation is a clinical-stage biopharmaceutical company focused on the development of a telomerase inhibitor, imetelstat, for the treatment of hematologic myeloid malignancies. [BN] The Plaintiff is represented by: Christopher A. Seeger, Esq. Christopher L. Ayers, Esq. SEEGER WEISS LLP 55 Challenger Road, 6th Floor Ridgefield Park, NJ 07660 Tel: 212-584-0700 Fax: 212-584-0799 Email: cseeger@seegerweiss.com cayers@seegerweiss.com - and - Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Tel: 631-367-7100 Fax: 631-367-1173 Email: srudman@rgrdlaw.com GLOBAL CREDIT: Arbitration Compelled in Castle FDCA Suit -------------------------------------------------------- Judge Steven C. Seeger of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Defendants' motions to compel arbitration in the case, BONNIE CASTLE, Plaintiff, v. GLOBAL CREDIT & COLLECTION CORP., et al., Defendants, Case No. 1:18-cv-06888 (N.D. Ill.). Plaintiff Castle applied online for a credit card with Credit One Bank, N.A. in 2014. During the application process, the Plaintiff had access to the proposed credit agreement, and acknowledged its terms by finalizing the application. Credit One accepted her application and opened her credit card account, which she used for several years. Sometime later, Credit One amended the credit agreement, and mailed a copy to the Plaintiff. She continued to use her account. Both the original and amended agreements included an arbitration provision. In 2017, Credit One assigned the rights to the Plaintiff's account to a credit agency, and the receivables went through a string of assignments from one company to another. At the end of the string, Defendant LVNV, a debt collection agency, ultimately acquired the Plaintiff's account. LVNV assumed all "rights, title, and interest in" the Plaintiff's account. Later that year, LVNV sued the Plaintiff to collect an outstanding balance on her credit card account. The parties settled the suit and released the Plaintiff from her debt in January 2018. Sometime after settlement, Defendant Resurgent Capital Services, L.P., a debt collection agency acting on behalf of LVNV, hired Defendant Global Credit to collect the discharged debt. Aptly-named Resurgent attempted to collect a debt that the Plaintiff no longer owed. Global Credit sent the Plaintiff two collection letters. Castle received a letter from a debt collector, Global Credit, to collect an outstanding balance on her credit card account. That was news to her. She had settled with the owner of that debt, LVNV, about six months earlier. One month after the first letter, Global Credit sent a second one, this time offering to settle the debt for 50 cents on the dollar (when she owed nothing). Instead of paying a debt that she did not owe, Castle turned the tables. On Oct. 12, 2018, Castle filed suit under the Fair Debt Collection Practices Act on behalf of herself and a putative class. She essentially alleges that the letters were a trick. The debt was time-barred, but making a partial payment on the debt arguably could have restarted the statute of limitations. By luring an otherwise unsuspecting consumer into making a payment, the collection agency could turn nothing into something. At first, the Defendants engaged the dispute in the federal forum. But a few months later, they moved to compel arbitration. The Plaintiff now argues that the Defendants waived their right to arbitration by not filing their motions sooner. Judge Seeger holds that Congress created a strong federal policy in favor of arbitration, and courts must respect the policy decisions of the political branches. The Plaintiff agreed to arbitration in the contract, and she has not met her burden of establishing a waiver. In light of the strong federal policy favoring arbitration and the enforcement of arbitration agreements, the Court holds that the Defendants did not waive their right to arbitration. The Defendants did not act with alacrity, but they did not delay the issue long enough to surrender their contractual right to arbitration. Judge Seeger granted the motions to compel and stayed the case until the completion of arbitration. A full-text copy of the District Court's Jan. 10, 2020 Memorandum Opinion & Order is available at https://is.gd/Qy7Qt5 from Leagle.com. Bonnie Castle, on behalf of plaintiff and a class, Plaintiff, represented by Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin LLC, Tiffany Nicole Hardy, Edelman, Combs, Latturner & Goodwin LLC & Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin LLC. Global Credit & Collection Corporation, Defendant, represented by Andrew E. Cunningham -- acunningham@sessions.legal -- Sessions Fishman Nathan & Israel, LLC, Morgan Ian Marcus -- mmarcus@sessions.legal -- Sessions Fishman Nathan & Israel, LLC & Syed Haseeb Hussain -- shussain@sessions.legal -- Sessions Fishman Nathan & Israel LLC. Resurgent Capital Services, L.P. & LVNV Funding, LLC, Defendants, represented by Nicole Marie Strickler -- nstrickler@messerstrickler.com -- Messer Strickler, Ltd. & Katherine Maria Saldanha Olson -- kolson@messerstrickler.com -- Messer Strickler, Ltd.. HANNA ANDERSSON: Barnes Sues Over Data Breach --------------------------------------------- Bernadette Barnes, an individual and California resident, on behalf of herself and all others similarly situated, Plaintiff, v. Hanna Andersson, LLC and Salesforce.Com, Inc., Defendants, Case No. 20-cv-00812, (N.D. Cal., February 3, 2020), seeks injunctive relief, statutory damages, attorneys' fees, costs together with other relief resulting from negligence and for violation of California's Unfair Competition Law. Hanna Andersson specializes in selling high-end children's apparel through its popular website and specialty retail stores throughout the United States. For online sales, Hanna uses Salesforce's Commerce Cloud Unit to take customers' personal and payment information. On January 15, 2020, Hanna Andersson notified customers about a widespread data breach that occurred from September 16, 2019 to November 11, 2019.[BN] The Plaintiff is represented by: M. Anderson Berry, Esq. CLAYEO C. ARNOLD, A PROFESSIONAL LAW CORPORATION 865 Howe Avenue Sacramento, CA 95825 Telephone: (916) 777-7777 Facsimile: (916) 924-1829 Email: aberry@justice4you.com - and - John A. Yanchunis, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Tel: (813) 223-5505 Fax: (813) 223-5402 Email: jyanchunis@ForThePeople.com IDAHO: Court to Hear Bid to Enforce K.W. Settlement on March 19 --------------------------------------------------------------- In the case, K.W., by his next friend D.W., et al., Plaintiffs, v. RICHARD ARMSTRONG, in his official capacity as Director of the Idaho Department of Health and Welfare; PAUL LEARY, in his official capacity as Medicaid Administrator of the Idaho Department of Health and Welfare; and the IDAHO DEPARTMENT OF HEALTH AND WELFARE, a department of the State of Idaho, Defendants. TOBY SCHULTZ, et al. Plaintiffs, v. RICHARD ARMSTRONG, et al., Defendants, Case Nos. 1:12-cv-00022-BLW (lead case), 3:12-CV-58-BLW (D. Idaho), Judge B. Lynn Winmill of the U.S. District Court for the District of Idaho denied the Defendants' motion for extension of time and an amended motion for extension of time. The Court also has a pending motion to enforce settlement agreement filed by the Plaintiffs that the Defendants have not responded to pending resolution of their motions for extension of time. In their motions, the Defendants request an order: (1) allowing them to take limited discovery into the basis for the motion to enforce, including deposing the class representatives (for no more than two hours); (2) extend the time within which they must respond to the motion to enforce to allow for limited discovery; and (3) requiring the class counsel to clarify who the class representatives in the case are. The case was originally filed in 2012. Two years have passed since the class action settlement has been proposed. Judge Winmill expresses no opinion on the motion to enforce -- and the arguments concerning whether additional time is needed to construct the budget tool -- other than to say that there must be some urgency in the resolution of that motion. The class members are well-known and the discovery sought by defendants does not, at this time, appear important enough to delay any further the resolution of the motion to enforce. For the reasons stated, the Court denied the Motion to Extend and the Amended Motion to Extend. The Defendants was directed to respond to the pending Motion to Enforce on Feb. 20, 2020. The final reply brief by the Plaintiffs will be due in accordance with Local Rules. A hearing will be held on the Motion to Enforce on March 19, 2020, at 1:30 p.m. in the Federal Courthouse in Boise Idaho. A full-text copy of the Court's Jan. 31, 2020 Memorandum Decision & Order is available at https://is.gd/1NFVTV from Leagle.com. K W, by his next friend DW, Christie Mathwig, formerly known as CM, C L, A L, through her guardian EB, K S, through his next friend SS, Matthew S, through his guardian VS, N R, through her next friend GR, T F, through her guardian RF, T M, through his guardian TW, B B, through his next friend DB, R P, through her guardian TP, Marcia S, through her guardian DS, E L, Toby Schultz, Breanna Mullic & Caleb Hall, Plaintiffs, represented by James Marshall Piotrowski -- James@idunionlaw.com -- HERZFELD & PIOTROWSKI, Marty Durand -- Marty@idunionlaw.com -- Herzfeld & Piotrowski, LLP & Richard Alan Eppink -- reppink@acluidaho.org -- American Civil Liberties Union of Idaho Foundation. Richard Armstrong, in his official capacity as Director of the IDH&W, Idaho Department of Health and Welfare, a department of the State of Idaho & Lisa Hettinger, in her official capacity as Medicaid Administrator of the IDH&W, Defendants, represented by Brian V. Church, Office of the Attorney General, Civil Litigation Division, Cynthia Lin Yee-Wallace, Office of Attorney General & W. Scott Zanzig, Office of the Idaho Attorney General, Civil Litigation. Idaho Care Providers Network, Amicus, represented by James Marshall Piotrowski, HERZFELD & PIOTROWSKI & Marty Durand, Herzfeld & Piotrowski, LLP. ILLINOIS: Bid to Sanction Dr. Newbold & Counsel in Winger Denied ---------------------------------------------------------------- In the case, MARK WINGER, #K97120, Plaintiff, v. JOHN BALDWIN, LOUIS SHICKER, DR. NEWBOLD, COLLEEN RUNGE, and DR. ASSELMEIER, Defendants, Case No. 19-cv-00236-NJR (S.D. Ill.), Judge Nancy J. Rosenstengel of the U.S. District Court for the Southern District of Illinois (i) granted Winger's motion to amend, (ii) denied Winger's Motion for Sanctions, and (iii) denied Winger's Motion for Reconsideration. Winger filed the civil rights action pursuant to 42 U.S.C. Section 1983 for federal and state law deprivations that allegedly occurred during his incarceration in the Illinois Department of Corrections ("IDOC") between 2012 and 2018. The Complaint addressed five separate incidents against the Defendants at multiple institutions. On May 1, 2019, the Court severed the claims arising from four incidents into separate cases. The case focuses on a fifth incident involving the denial of dental care for Winger's loose crown at Menard Correctional Center in 2018. The Complaint was dismissed without prejudice, and Winger was granted leave to file a First Amended Complaint to address his dental claims. Following an initial screening of the First Amended Complaint pursuant to 28 U.S.C. Section 1915A, Winger was allowed to proceed with the following counts: (i) Count 1 - Eighth Amendment deliberate indifference claim against State Defendants John Baldwin and Louis Shicker for allowing inadequate staffing, leadership vacancies, and insufficient sick call procedures that caused the delay and/or denial of dental care for Plaintiff's loose crown at Menard in 2018; and (ii) Count 2 - Eighth Amendment deliberate indifference claim against Dr. Newbold and Colleen Runge for delaying or denying dental care for the Plaintiff's loose crown at Menard in 2018. Winger submitted a Motion for Leave to File a Second Amended Complaint on Sept. 13, 2019, which the Court denied without prejudice for failure to comply with Local Rule 15.1. Again, on Dec. 17, 2019, Winger filed another Motion for Leave to File Third Amended Verified Complaint, in which he brings claims against an additional Defendant, Dr. Asselmeier and previously dismissed Defendants, Pritzker and Rauner, as well as modifies his request for relief. Defendant Dr. Newbold filed a Response to the motion arguing that the Court may deny leave to file an amended complaint in the case of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of amendment. Because Winger attempts in his proposed Third Amended Complaint to bring claims previously dismissed and requests permission to bring a class action, also previously denied, and such claims are not underlined, Dr. Newbold argues that the Motion should be denied. If the Court grants Winger's leave to file his Third Amended Complaint, Dr. Newbold requests the Court to conduct a preliminary review under 28 U.S.C. Section 1915A. The Court now considers Winger's motion to amend, as well as other pending motions -- Motion for Sanctions, Motion for Reconsideration, and Motion for Preliminary Injunction. For the reasons stated and as articulated in the Merit Review Order of the First Amended Complaint, Judge Rosenstengel finds that the following Counts will proceed: (i) Count 1 - Eighth Amendment deliberate indifference claim against John Baldwin and Louis Shicker for allowing inadequate staffing, leadership vacancies, and insufficient sick call procedures that caused the delay and/or denial of dental care for Plaintiff's loose and eventually lost crown in Menard in 2018; (ii) Count 2 - Eighth Amendment deliberate indifference claim against Dr. Newbold, Colleen Runge, and Dr. Asselmeier for delaying and/or denying dental care, including false diagnosis and interference with prescribed treatment, for Plaintiff's loose and eventually lost crown at Menard in 2018; and (iii) Count 3 - Eighth Amendment deliberate indifference claim against John Baldwin, Louis Shicker, and Dr. Asselmeier for maintaining and implementing the IDOC policy prohibiting crown procedures, preventing the Plaintiff from receiving adequate dental care and causing physical pain and suffering. Winger again has sought permission to bring a class action. For the reasons stated in the Court's Merit Review Order of the First Amended Complaint, the Court denied the request for certification as a class action. Winger has filed a motion requesting the Court to sanction Dr. Newbold and his counsel for failing to appear at the preliminary injunction hearing held on Oct. 17, 2019, and for misrepresenting the facts during the hearing. He argues that Dr. Newbold was ordered to appear in person pursuant to Court Order, and because Dr. Newbold was not at the hearing, Winger was unable to question the doctor and establish his likelihood of success on the merits. The Court holds that while there does seem to be discrepancies in the call pass log submitted by Winger and the medical records submitted by Dr. Newbold, it does not demonstrate bad faith. Winger has not also demonstrated how Dr. Newbold's actions prejudiced him in litigating his motion. Thus, the Motion for Sanctions is denied. Winger has also filed a motion asking the Court to reconsider the denial of his preliminary injunction motion. The Court does not find that exceptional circumstances exist in the case to warrant the extraordinary remedy that Winger seeks. Rule 60(b) is not an appropriate vehicle for addressing simple legal error, for rehashing old arguments, or for presenting arguments that should have been raised before the Court made its decision. A contention that the judge erred with respect to the materials in the record, as Winger is doing, is not within the scope of Rule 60(b) Gleash v. Yuswak. Thus, the Motion is denied. Winger has filed a Motion for Preliminary Injunction asking the Court to order the Defendants to restore or repair his tooth #2. He claims that his damaged tooth #2 is at imminent risk of irreparable harm and has fractured since the previous preliminary injunction hearing regarding his dental concerns of the same tooth. Because Winger claims he is continuing to be injured by IDOC's statewide policy prohibiting crown replacement, even after his transfer, the Judge will not dismiss the motion as moot at this time. The Defendants were ordered to respond to the request for a preliminary injunction, at which point the Court will determine the need for a hearing on the request for preliminary injunction. Because the unknown Defendant John/Jane Doe 3 has been identified, Frank Lawrence, Warden of Menard Correctional Center, is no longer a necessary party, and is dismissed without prejudice. Pursuant to Rule 15, and after review of the Third Amended Complaint pursuant to 28 U.S.C. Section 1915A, the Court granted Winger's Motion for Leave to File an Amended Complaint. Count 1 will proceed against Baldwin and Shicker; Count 2 will proceed against Newbold, Runge, and Asselmeier; and Count 3 will proceed against Baldwin, Shicker, and Asselmeier. The Clerk of Court is directed to file the Third Amended Complaint and to add Dr. Asselmeier to the docket as a Defendant. For the reasons stated, Acting Warden Frank Lawrence is dismissed without prejudice, and the Clerk is directed to terminate him from the docket. The Court denied the Motion for Sanctions and the Motion for Reconsideration. Finally, the Defendants are ordered to respond to the Motion for Preliminary Injunction, at which point the Court will determine the need for a hearing on the Motion. Furthermore, the Clerk of Court will prepare for Asselmeier: (i) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (ii) Form 6 (Waiver of Service of Summons). The Clerk is directed to mail these forms, a copy of the Third Amended Complaint, the original Merit Review Order of the First Amended Complaint, the Memorandum and Order, and the Motion for Preliminary Injunction to the Defendant's place of employment as identified by Winger. The Defendants are ordered to timely file an appropriate responsive pleading to the Third Amended Complaint and will not waive filing a reply pursuant to 42 U.S.C. Section 1997e(g). Pursuant to Administrative Order No. 244, the Defendants should respond to the issues stated in the original Merit Review Order of the First Amended Complaint and in the Merit Review Order. The Defendants are advised that the Court does not accept piecemeal answers. A full-text copy of the District Court's Jan. 10, 2020 Memorandum & Order is available at https://is.gd/ET01Bk from Leagle.com. Mark Winger, Plaintiff, pro se. Director John Baldwin, Director of IDOC, added per First Amended Complaint, Louis Shicker, Medical Director of IDOC, added per First Amended Complaint, Acting Warden Frank Lawrence, official capacity only & Colleen Runge, Defendants, represented by Robert Brandon Shultz, Office of the Attorney General. Dr. Newbold, Defendant, represented by Timothy P. Dugan -- tdugan@cassiday.com -- Cassiday Schade, LLP & Alison J. Matusofsky -- amatusofsky@cassiday.com -- Cassiday Schade, LLP. INNOVACARE HEALTH: Minority Stockholders Sue D&Os over Summit Deal ------------------------------------------------------------------ The case, AMBER MOUNTAIN TRADING LP, individual and on behalf of all others similarly situated, Plaintiff v. DANIEL E. STRAUS, RICHARD SHINTO, STEPHEN BAKER, JONATHAN KOLATCH, and RAPHAEL BENAROYA, Defendants, Case No. 2:20-cv-02369 (D.N.J., March 4, 2020) alleges InnovaCare Health entered into a merger agreement on July 16, 2019, with affiliates of Summit Partners, L.P. whereby Summit agreed to acquire InnovaCare for initial total cash consideration of $1.05 billion, but the total consideration paid by Summit was not shared equally among all InnovaCare stockholders and at least $90 million in buyout consideration was siphoned off by Daniel Straus, including an unjustifiably large $64 million payment disguised as consideration for a personal covenant-not-to-compete. Moreover, the minority stockholders of InnovaCare were not provided an opportunity to separately vote on whether to approve the Merger and the various side payments. Daniel Straus is the founder, chairman, and controlling stockholder of InnovaCare. Reportedly, Straus controls the board of directors and caused them to approve terms that paid Straus substantial side benefits that directly reduced the Merger consideration paid to minority stockholders, thereby violating his fiduciary duties and caused his dominated Board to do the same. Under Delaware law, a controlling stockholder cannot abuse its position of control to compete with minority stockholders for consideration and extract greater consideration or a unique benefit in the context of a merger transaction. Plaintiff seeks to recover damages on behalf of InnovaCare minority stockholders. Amber Mountain Trading LP was a stockholder of InnovaCare. [BN] The Plaintiff is represented by: James E. Cecchi, Esq. Mark M. Makahil, Esq. CARELLA, BYRNE, CECCHI OLSTEIN, BRODY & AGNELLO 5 Becker Farm Road Roseland, NJ 07068 Tel: (973)994-1700 - and - Ned Weinberger, Esq. LABATON SUCHAROW LLP 300 Delaware Ave., Suite 1340 Wilmington, DE 19801 Tel: (302)573-2540 Email: nweinberger@labaton.com - and - David Schwartz, Esq. John Vielandi, Esq. David, MacIsaac, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: (212)907-0700 Emails: dschwartz@labaton.com vielandi@gmail.com INTELENET AMERICA: Class of CSRs in Clark Conditionally Certified ----------------------------------------------------------------- In the case, JASMINE CLARK et al., Plaintiffs, v. INTELENET AMERICA, LLC (d/b/a Intelenet Global Services), Defendant, Civil Action No. 18-14052 (D. N.J.), Judge Madeline Cox Arleo of the U.S. District Court for the District of New Jersey granted the Plaintiffs' motion to conditionally certify the putative collective. The Defendant is a U.S.-based company that operates professional call center services for corporate clients. It employs customer service representatives ("CSRs") who work from home or from its brick-and-mortar call centers. According to the Defendant, it had seven customer accounts during the relevant period, but the Plaintiffs and their declarants all worked on Account 1. The Plaintiffs were employed by the Defendant as at-home CSRs on an hourly non-exempt basis. Clark was an at-home CSR in Florida from January 2018 to November 2018. Legree was an at-home CSR in New Jersey from January 2018 to August 2018. Both Clark and Legree state that they typically worked at least 40 hours per five-day workweek and were paid $11.25 per hour, plus shift differentials and incentive pay. The Plaintiffs allege that all at-home CSRs were required to perform a variety of off-the-clock work without compensation, including: (1) pre-shift computer start-up and login activities; (2) post-shift computer logout and shutdown activities; and (3) work-related computer and phone activities during unpaid meal breaks. They further allege that they could not access "XactTime," the Defendant's timekeeping software, until after they completed the alleged startup and login activities. They claim that they were required to perform post-shift logout and shutdown activities after logging out of XactTime. The Plaintiffs estimate that they performed "in the range of 15 minutes" of unpaid pre-shift work, "1 to 10 minutes" of unpaid meal-break work, and between "3 to 4 minutes" of unpaid post-shift work daily, although sometimes more if they experienced technical problems, and "in the range of 5 to 10 minutes" of unpaid work per shift during their eight weeks of training. According to the Plaintiffs, the Defendant enforced these de facto off-the-clock work requirements in part through its written attendance policy, which requires CSRs to be logged in and on their phones no more than three minutes after the start of their scheduled shift. They also claim that the Defendant improperly excluded shift differential pay and incentive pay from their overtime rates. The Plaintiffs filed suit against the Defendant on Sept. 20, 2018, on behalf of themselves and all other similarly situated individuals. On April 29, 2019, they filed a First Amended Collective and Class Action Complaint, alleging: (1) violations of the Fair Labor Standards Act ("FLSA"), on behalf of themselves and a putative collective; and (2) various violations of New Jersey wage and contract law on behalf of themselves and a putative class under Federal Rule of Civil Procedure 23. On July 19, 2019, the Plaintiffs filed a motion for conditional certification and court-authorized notice to potential collective members. The Defendant opposed the Plaintiffs' motion. The Plaintiffs move for conditional certification of a collective of all current and former hourly at-home Customer Service Representatives who worked for Defendant Intelenet America, LLC at any time within three years from the date this lawsuit was filed through judgment. Judge Arleo finds that the Plaintiffs have satisfied their burden and will conditionally certify the proposed collective. In support of their allegations, they have submitted declarations from themselves and six other current and former at-home CSRs who worked in Florida, Indiana, and Texas, their deposition transcripts, pay stubs for the Plaintiffs and four of their declarants from 2018 and 2019, Clark's January 2018 time records, various written policies of Defendant's, and three emails from Team Leaders and a Learning Specialist. In view of the "fairly lenient standard" that applies to motions for conditional certification, the Judge is satisfied that, based on the present evidentiary record, the Plaintiffs have made a "modest factual showing" that they and other at-home CSRs who worked for the Defendant are similarly situated. In conditionally certifying the collective, the Judge emphasizes that the sole consequence of conditional certification is the dissemination of court-approved notice to potential collective action members. To the extent that the Defendant is concerned about a collective class that is broader than what is justified by the evidence, the Court will carefully scrutinize the evidence before granting final certification of the employees to be included. The Plaintiffs request permission to send Court-approved notice by mail, email, and text message, and have submitted proposed forms of notice. The Defendant objects to the proposed forms of notice and requests that resolution of the notice issue be deferred because the scope of conditional certification granted would inform the discussion between the parties. The Judge instructs the parties to meet and confer regarding the method, timing, and content of any notice, and submit agreed-upon proposed forms regarding same, to the Hon. Joseph A. Dickson within 15 days of the accompanying Order. The expedited meet-and-confer schedule will help ensure that potential collective members receive timely notice. For the foregoing reasons, Judge Arleo granted the Plaintiffs' motion to conditionally certify the putative collective. She directed the parties to meet and confer as to the form of notice. An appropriate Order follows. A full-text copy of the Court's Feb. 19, 2020 Opinion is available at https://is.gd/ZWAeHL from Leagle.com. JASMINE CLARK & SIMONE LEGREE, individually and on behalf of all other similarly situated individuals, Plaintiffs, represented by JASON TRAVIS BROWN -- jtb@jtblawgroup.com -- BROWN, LLC. INTELENET AMERICA, LLC, doing business as Intelenet Global Services, Defendant, represented by ANDREW CRAIG KARTER -- andrew.karter@akerman.com -- AKERMAN LLP. JOHN C. HEATH: Trim and Frey Sue over Unsolicited Telephone Calls ----------------------------------------------------------------- The case, LUCINE TRIM and ANTHONY FREY, individually and on behalf of all others similarly situated, Plaintiff v. JOHN C. HEATH, ATTORNEY AT LAW PC, d/b/a LEXINGTON LAW FIRM, a Utah corporation, Defendant, Case No. 2:20-cv-02161 (C.D. Cal., March 5, 2020) arises from Defendant's alleged violation of the Telephone Consumer Protection Act. Plaintiffs allege that Defendant has unlawful practice of placing calls using an "automatic telephone dialing system" or a pre-recorded voice to the cellphones of consumers nationwide without their prior express consent in an effort to obtain leads for its services. Moreover, due to Defendant's unsolicited telephone calls, Plaintiffs and the members of the Classes experienced actual harm and cognizable legal injury such as aggravation and nuisance, invasions of privacy that result from the receipt of such calls, and loss of value realized for the monies consumers paid to their wireless carriers for the receipt of such calls. Plaintiffs seek to obtain redress for all persons injured by Defendant's conduct and an award of statutory damages to the members of the Classes plus court costs and reasonable attorneys' fees. John C. Heath, Attorney at Law PC d/b/a Lexington Law Firm is a law firm located at 360 North Cutler Drive, North Salt Lake, Utah 84054. [BN] The Plaintiffs are represented by: Aaron D. Aftergood, Esq. THE AFTERGOOD LAW FIRM 1880 Century Park East, Suite 200 Los Angeles, CA 90067 Tel: (310)550-5221 Fax: (310)496-2840 Email: aaron@aftergoodesq.com - and - Patrick H. Peluso, Esq. WOODROW & PELUSO, LLC 3900 East Mexico Ave., Suite 300 Denver, CO 80210 Tel: (720)213-0676 Fax: (303)927-0809 Email: ppeluso@woodrowpeluso.com JOHN L. SULLIVAN: Arbitration Bid Denial in Gotts Labor Suit Upheld ------------------------------------------------------------------- In the case, MATTHEW GOTTS, Plaintiff and Respondent, v. JOHN L. SULLIVAN CHEVROLET, INC., et al., Defendants and Appellants, Case No. C088801 (Cal. App.), Judge Peter A. Krause of the Court of Appeals of California for the Third District, Placer, affirmed the trial court's order denying Defendants John L. Sullivan Chevrolet, Inc., John L. Sullivan, and Steven A. Ruckels' petition to compel arbitration and stay court proceedings. Gotts previously worked as a sales associate for Defendant John L. Sullivan Chevrolet, Inc., an automobile dealership. In August 2018, on behalf of himself and other similarly situated employees, the Plaintiff sued the Defendants for alleged Labor Code violations. He alleges that they failed to pay employees for all regular and overtime hours worked, did not permit employees to take meal and rest periods, failed to pay employees for missed meal and rest periods, failed to reimburse employees for business-related expenses, failed to provide accurate wage statements, and failed to timely pay all wages owed upon resignation or termination. The Plaintiff's complaint contains a single cause of action brought under the Private Attorneys General Act of 2004. For each enumerated violation, he seeks a civil penalty or, if no civil penalty is specifically provided, the default civil penalty under section 2699, subdivision (f). In October 2018, the Defendants filed a petition to compel arbitration of the Plaintiff's individual claims for unpaid and underpaid wages. They argued that the Plaintiff executed multiple written agreements to submit all employment-related disputes to binding arbitration. Although they conceded that predispute agreements to arbitrate PAGA claims are not enforceable, the Defendants argued that the allegations in the Plaintiff's complaint go beyond a "true" PAGA claim for civil penalties, seeking recovery of unpaid wages and other victim-specific relief under sections 558 and 1197.1. Thus, they sought an order compelling him to arbitrate his individual victim-specific claims for damages and staying the remainder of the civil action. The trial court denied the petition. In its ruling, it first determined that individual claims for relief were not alleged in the complaint. The court then ruled that arbitration would be improper even if the Plaintiff were seeking to recover victim-specific relief as part of his PAGA claim because the arbitration agreements between the parties expressly exclude PAGA claims from the scope of arbitration. On appeal, the Defendants argue that the trial court erred by (1) determining that the Plaintiff's complaint does not seek recovery of individual claims for unpaid/underpaid wages under sections 558 and 1197.1, and (2) refusing to compel arbitration of such claims. Judge Krause disagrees. The dispute in the case essentially follows the lines of the Esparza-Lawson dispute about whether the recovery of unpaid wages under section 558 should be considered part of the "civil penalty" that employees are authorized to recover on behalf of the state under the PAGA. At the time the parties filed their briefs, the dispute was unsettled. It is no longer true. Less than 24 hours after defendants filed their reply brief, the Supreme Court issued its decision in ZB, N.A. v. Superior Court. As a result of that decision, it is now established that the civil penalties a plaintiff may recover under section 558 (or analogous section 1197.1) do not include unpaid/underpaid wages. It is fatal to Defendants' arguments on appeal. The Plaintiff's complaint alleges a single claim for civil penalties under the PAGA. The Defendants' petition assumed that the civil penalties recoverable under sections 558 and 1197.1 may include unpaid/underpaid wages and sought to compel arbitration of only those claims. ZB makes clear that the Defendants were operating under a faulty premise. The Plaintiff cannot recover unpaid wages under the cause of action alleged in the complaint. Thus, the trial court did not err by denying the Defendants' petition to compel arbitration, rules the appeals court. Judge Krause accordingly affirmed the order denying the petition to compel arbitration. The Plaintiff will recover his costs on appeal. A full-text copy of the Appeals Court's Feb. 19, 2020 Opinion is available at https://is.gd/6lSVC9 from Leagle.com. KAISER FOUNDATION: Cal. App. Affirms Andino Class Decertification ----------------------------------------------------------------- In the case, JOSE F. ANDINO, Plaintiff and Appellant, v. KAISER FOUNDATION HOSPITALS, Defendant and Respondent, Case No. A153962 (Cal. App.), Judge Robert Clive Jones of the Court of Appeals of California for the First District, Division Five, affirmed the trial court's order granting Kaiser's motion to decertify a class of hourly employees who alleged they were not compensated for all time worked because the company rounded their time entries. Kaiser operates hundreds of medical facilities in California. It employs thousands of hourly employees in numerous positions across many departments, from pharmacies to landscaping. These employees clock in and out for shifts and meal periods using a phone-based timekeeping system. Shift tolerance windows are a feature of the company's timekeeping system, and the product of negotiation with employee unions. Shift tolerance windows allow employees to clock in and out during six-minute windows before and after shift start and end times; employees who clock in or out during these windows are paid based on the scheduled shift. For example, an employee would be considered to have started his shift at 9:00 a.m. as long as he clocked in between 8:54 a.m. and 9:06 a.m. There is significant variation in how shift tolerance windows are implemented across the company, i.e., which phones employees use to clock in and out, and the proximity from the phones to the employees' workplace. When work begins and ends also varies from department to department. In some departments, such as housekeeping or nursing, work cannot begin until the shift commences. In certain departments, work winds down before the shift ends. The Plaintiff worked at Kaiser for two and a half years. In 2011, he filed a putative class action lawsuit against Kaiser, alleging he was underpaid due to the company's practice of rounding time. The operative second amended complaint alleged several causes of action, including claims for underpayment of hourly and overtime wages. As pertinent in the instant, the Plaintiff's theory was Kaiser allowed and encouraged hourly employees to work during shift tolerance windows but paid them only for their scheduled shifts. According to the Plaintiff, the rounding policy benefitted the company $113 million to the detriment of employees. The court certified a class of approximately 99,000 current and former hourly employees over a eight-year, nine-month period, premised on the predominant issues of (1) whether Kaiser's timekeeping policy operated as a grace period or a rounding policy, and (2) if so, whether that policy disproportionately favored Kaiser. In concluding the predominant question was whether the timekeeping policy was facially neutral, the court stated certification of a rounding claim was not contingent on a showing by the Plaintiff that the putative class members were actually performing work during the clocked-in time that was deleted for pay purposes. The court cautioned, however, that calling class member by class member at different facilities" could "open the door to decertifying the class. The Plaintiff's counsel assured the court to prove their case, they don't need necessarily class members. The Plaintiff's trial plan urged the court to assume employees were working during shift tolerance windows, and to require Kaiser to establish otherwise. According to him, liability was presumptively established if Kaiser failed to prove employees were not working during the windows. Kaiser's rounding system violates California's labor laws. Individualized testimony from class members is simply not necessary to make the determination. Kaiser identified several problems with the trial plan. First, it argued the plan was premised on a misapplication of the law and the parties' respective burdens of proof. Second, Kaiser argued the evidence established the timekeeping policy was a grace period, not a rounding policy. Third, the company highlighted the individualized inquiries necessary to adjudicate liability, irrespective of whether the timekeeping system was characterized as a grace period or a rounding policy. Kaiser moved to decertify the class, raising arguments similar to those in its trial plan response. The company argued liability could not be established on a class-wide basis because the threshold issue could not be decided without determining whether employees were working during shift tolerance windows. Kaiser urged the court not to presume employees were working; to do so, according to Kaiser, would deny the company due process by exempting plaintiff and class members from proving they worked without compensation. The company argued liability was not subject to common proof because of wide variation in how shift tolerance windows were implemented. Relying on the certification order, the Plaintiff argued he did not have to show class members worked during shift tolerance windows. In the alternative, he claimed he could establish class members were working "with common evidence," which included (1) data showing the timekeeping system deleted more hours than it added; (2) corporate witness testimony regarding company-wide rounding, tardiness, and absence policies, including the absence of a policy prohibiting work during shift tolerance windows; (3) the Plaintiff and class member testimony that employees worked during shift tolerance windows; (4) expert testimony regarding the features of legal timekeeping policies; and (5) expert survey testimony. The Plaintiff offered declarations from 22 class members who averred they routinely clocked in before their scheduled shift, that they performed work before their shift began, and that they were not told they could not work before their shift start time. The court granted Kaiser's motion to decertify the class, concluding the Plaintiff's trial plan was unmanageable. First, the court determined the Plaintiff erred by relying on the statement in the certification order that he need not show class members were working during shift tolerance windows. Next, the court concluded the Plaintiff's method for establishing liability necessitated individualized evidence on what the class members were doing during the shift tolerance windows. Judge Jones affirmed. He finds that the lower court decertified the class because it determined individual issues were unmanageable. It did not, as the Plaintiff claims, impose an "incorrect standard" when decertifying the class, and the Judge rejects the Plaintiff's characterization of the court's ruling as requiring the Plaintif to proffer individualized evidence. The court considered the evidence offered by both parties and concluded the Plaintiff offered no manageable way of answering the essential question of what employees did during shift tolerance windows. The court did not err. Judge Jones also does not believe that the Plaintiff's evidence undermines the trial court's manageability finding. Relying on AHMC Healthcare, Inc. v. Superior Court, the Plaintiff suggests "timekeeping data" is dispositive on the issue of liability, because employees were 'on the clock' during shift tolerance windows and were not paid. The Plaintiff's reliance on proposed survey data does not establish the court's manageability finding was erroneous. It is not sufficient simply to mention a procedural tool; the party seeking class certification must explain how the procedure will effectively manage the issues in question. And the Plaintiff did not satisfy this burden. He vaguely suggested the survey would be used as 'an adjunct' to his liability showing, and he did not explain how the data could be extrapolated to the remainder of the class. Judge Jones declines to consider the Plaintiff's argument that the decertification motion was procedurally improper. Such argument is not set out under a distinct heading. The Plaintiff's remaining arguments have been considered and merit no further discussion, including his argument that the court should have given him an opportunity to submit a new trial plan rather than decertifying the class. Based on the foregoing, Judge Jones affirmed the decertification order. Kaiser is awarded costs on appeal. A full-text copy of the Court's Feb. 26, 2020 Opinion is available at https://is.gd/Ff91IA from Leagle.com. KARPENISI DO-NUT SHOP: Atemis and Zavala Sue over Unpaid OT Wages ----------------------------------------------------------------- CONCEPCION ALVARO ATEMIS and MIGUEL ZAVALA, individually and on behalf of all others similarly situated, Plaintiffs v. KARPENISI DO-NUT SHOP, INC. d/b/a FAME DINER, MIRIKI LLC, GEORGE KANTLIS, JOHN KANTLIS, and MARIA TSIAKAS, jointly and severally, Defendants, Case No. 1:20-cv-01200 (E.D.N.Y., March 4, 2020) is a class and collective action complaint brought against Defendants for their alleged violations of the Fair Labor Standards Act and the New York Labor Law. According to the complaint, Plaintiffs and other non-exempt employees of Defendants, who are former line cooks, waiters, and dishwashers at Defendants' diner located in Maspeth, New York, County of Queens, were either paid a fixed salary or on an hourly basis with no overtime premiums for hours worked over 40 in a given workweek. Plaintiff further claims that Defendants did not pay them spread-of-hours premiums and failed to provide proper wage notices and wage statements pursuant to NYLL. Plaintiffs seek to recover overtime premium pay owed to them pursuant to FLSA and NYLL. George Kantlis, John Kantlis, and Maria Tsiakas are active owners and operators of the Corporate Defendants. Karpenisi Do-Nut Shop, Inc. d/b/a as Fame Diner, and Mariki LLC are corporate donut shops that serve meals. [BN] The Plaintiffs are represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Tel: (212)385-9700 Fax: (212)385-0800 Emails: Pelton@PeltonGraham.com Graham@PeltonGraham.com L'OREAL USA: Prelim Approval of Settlement in Conti Suit Denied --------------------------------------------------------------- In the case, ANGELA CONTI and JUSTINE MORA, individuals, on behalf of themselves, and on behalf of all persons similarly situated Plaintiffs, v. L'OREAL USA S/D, INC., a Corporation Defendant, Case No. 1:19-cv-00769-NONE-SKO (E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the Eastern District of California denied without prejudice the Plaintiffs' motion for preliminary approval of a class action settlement. The Plaintiffs bring the putative class action against the Defendant for alleged violations of California Labor Code Sections 201, 202, 203, 226, 226.3, 226.7, 510, and 512, California Business & Professions Code Section 17200, the California Private Attorneys General Act, and the Fair Labor Standards Act. The Plaintiffs filed a motion for preliminary approval of a class action settlement, which defendant did not oppose. The Court referred the matter to the assigned magistrate judge pursuant to 28 U.S.C. Section 636 and Local Rules 302 and 304 for issuance of findings and recommendations. On Jan. 27, 2020, the magistrate judge issued findings and recommendations in which it was recommended that the Court denies the motion without prejudice to the Plaintiffs renewing the motion to address the issues and concerns identified therein. The magistrate judge recommended denial based upon the finding that the proposed class did not meet the requirements for class certification under Federal Rule of Civil Procedure 23, and because the Plaintiffs had failed to demonstrate that the settlement was fair, reasonable, and adequate, among other noted deficiencies. The Plaintiffs allege various labor violations, including that the Defendant required putative class member employees to work overtime off the clock and to clock out for meal breaks and at the end of shifts even though they were thereafter required submit to "loss prevention inspections." Yet, as the magistrate judge noted, the Plaintiffs have submitted no evidence demonstrating the existence of employment practices or policies common to all putative members of the settlement class. The findings and recommendations were served on the parties and contained notice that objections thereto were to be filed within 21 days. No objections were filed. In accordance with the provisions of 28 U.S.C. Section 636(b)(1)(C), having reviewed the entire file de novo, Judge Drozd finds that the findings and recommendations are supported by the record and proper analysis. Accordingly, he adopted in full the findings and recommendations filed Jan. 27, 2020. The Plaintiffs' motion for preliminary approval of a class action settlement is denied without prejudice. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/mMoLxU from Leagle.com. Angela Conti, individuals, on behalf of themselves, and on behalf of all persons similarly situated & Justine Mora, individuals, on behalf of themselves, and on behalf of all persons similarly situated, Plaintiffs, represented by Aparajit Bhowmik -- aj@bamlawlj.com -- Blumenthal, Nordrehaug & Bhowmik, Kyle R. Nordrehaug -- kyle@bamlawca.com -- Blumenthal Nordrehaug and Bhowmik & Norman Blumenthal -- NORM@BAMLAWCA.COM -- Blumenthal Nordrehaug & Bhowmik, LLP. L'Oreal USA S/D, Inc., a Corporation, Defendant, represented by Irene Vera Fitzgerald -- ifitzgerald@littler.com -- Littler Mendelson, P.C. & Angela Joy Rafoth -- arafoth@littler.com -- LIttler Mendelson, PC. LAWRENCE EQUIPMENT: Arbitration Award Ruling in Rodriguez Upheld ---------------------------------------------------------------- In the case, JULIAN RODRIGUEZ, Plaintiff and Appellant, v. LAWRENCE EQUIPMENT, INC., Defendant and Respondent, Case No. B291180 (Cal. App.), Judge Luis A. Lavin of the Court of Appeals of California for the Second District, Division Three, affirmed the judgment confirming an arbitration award entered in favor of Lawrence. Lawrence is a machine manufacturing company based in Los Angeles. It manufactures "flat bread machinery" in the United States and Europe. Rodriguez started working for Lawrence as an hourly machine operator in April 1999. Rodriguez usually worked five or six days a week, from 6:00 a.m. until 3:30 p.m. Lawrence required its employees, including Rodriguez, to take a 20-minute paid rest break at 10:00 a.m. and a 40-minute break at 1:00 p.m., which consisted of a 30-minute unpaid meal break and a 10-minute paid rest break. Lawrence prohibited its employees from taking their breaks at any other times. In July 2014, Rodriguez signed an acknowledgment included in Lawrence's employee manual. The acknowledgment contained an arbitration agreement, which provided that any dispute between Lawrence and Rodriguez that is in any way related to the employment of Rodriguez will be submitted to arbitration before the American Arbitration Association or any other individual or organization on which the parties agree or which a court may appoint. In July 2015, Lawrence issued a new employee manual. The new manual included a revised arbitration agreement, which provided that any employment-related dispute between an employee and Lawrence would be subject to final and binding arbitration pursuant to the provisions of the Federal Arbitration Act. Rodriguez never signed the revised arbitration provision or any acknowledgment that he had received the new employee manual because he was out of work on a medical leave of absence and had a recently signed arbitration policy in his file. Lawrence terminated Rodriguez's employment in late October 2015. In December 2015, Rodriguez filed a class action lawsuit against Lawrence. The operative first amended complaint alleged eight causes of action: (1) failure to pay wages for all time worked in violation of Labor Code sections 1194 and 1197; (2) failure to pay overtime wages in violation of Labor Code sections 510, 1194, and 1198; (3) failure to pay wages for inadequate meal breaks in violation of Labor Code sections 226.7 and 512; (4) failure to provide adequate rest breaks in violation of Labor Code section 226.7; (5) failure to provide complete and accurate wage statements in violation of Labor Code section 226; (6) failure to pay all earned wages at time of separation of employment in violation of Labor Code sections 201, 202, and 203; (7) unfair business practices in violation of Business and Professions Code section 17200 et seq.; and (8) a claim for civil penalties and wages under the Private Attorneys General Act ("PAGA"). In May 2016, Lawrence filed a motion to compel arbitration of the allegations in the first seven causes of action, to dismiss Rodriguez's class claims, and to stay the eighth cause of action -- i.e., the PAGA claim —until arbitration was resolved. Lawrence argued, among other things, that Rodriguez was required to arbitrate his claims pursuant to the Arbitration Agreement that he signed in July 2014. In July 2016, the court granted Lawrence's motion and ordered the parties to arbitrate the allegations in the first seven causes of action. The court also dismissed Rodriguez's class claims and stayed the PAGA claim pending resolution of the arbitration. In early February 2018, the parties participated in a two-day arbitration hearing. At the hearing, Rodriguez claimed Lawrence violated the Labor Code and the Industrial Wage Commission's Wage Order 4-2001 when it failed to: (1) pay Rodriguez for all regular and overtime hours that he worked; (2) provide Rodriguez legally compliant meal and rest breaks; (3) compensate Rodriguez for each day that he was not provided a legally compliant meal or rest break; (4) timely pay Rodriguez all outstanding wages at the time of his termination; and (5) provide Rodriguez accurate wage statements. Rodriguez also claimed Lawrence's Labor Code violations constituted unfair business practices under the Business and Professions Code. On Feb. 12, 2018, the arbitrator issued a written award in favor of Lawrence. The arbitrator found Lawrence did not fail to pay Rodriguez for any wages that he had earned. The arbitrator also found Lawrence did not schedule Rodriguez's meal and rest breaks in an unlawful manner. In March 2018, Rodriguez filed a motion to vacate the Award. In April 2018, Lawrence filed a petition to confirm the Award as well as an opposition to Rodriguez's motion to vacate. In May 2018, the court granted Lawrence's petition to confirm the Award and denied Rodriguez's motion to vacate. The court found the Arbitration Agreement was governed by the FAA because Rodriguez's employment involved interstate commerce and, as a result, the Award was not subject to expanded judicial review for errors of law or fact. Alternatively, it concluded that even if the Arbitration Agreement was governed by California law, the language in the agreement providing for "limited review" of the Award did not expand the scope of the court's review beyond the grounds identified in sections 1286.2 and 1286.6. The court also rejected Rodriguez's argument that the nature of his claims challenging the manner in which Lawrence scheduled its meal and rest breaks entitled him to expanded judicial review of the arbitrator's decision. In June 2018, the court entered judgment on the first seven causes of action in Lawrence's favor. Rodriguez appeals. On appeal, Rodriguez contends the court erred when it denied his motion to vacate the Award. Specifically, Rodriguez argues the court should have reviewed the merits of the arbitrator's decision because the Arbitration Agreement expressly permits limited judicial review of any award to determine whether the arbitrator "complied with statutory law," which Rodriguez insists includes substantive wage-and-hour laws. Alternatively, he argues the court should have reviewed the merits of the Award because his wage-and-hour claims implicate "unwaivable statutory rights" entitled to expanded judicial review. Finally, Rodriguez urges us to vacate the Award because the arbitrator failed to properly apply California's wage-and-hour laws to his claims. Judge Lavin holds that the court correctly declined to review the merits of the Award. He concludes that the language of the Arbitration Agreement in the case does not explicitly authorize expanded judicial review of the Award for errors of law or fact. Rodriguez is not entitled to expanded judicial review of the Award for legal or factual errors simply because that decision resolves his statutory claims under California's wage-and-hour laws. Because Rodriguez does not challenge the Award on any of the grounds authorized by the CAA, the court did not err when it confirmed the Award. The judgment is affirmed. Lawrence will recover its costs on appeal. A full-text copy of the Court's Feb. 26, 2020 Opinion is available at https://is.gd/Az1fWT from Leagle.com. Levi & Ebrahimian, Joseph Lavi and Jordan D. Bello for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Raul L. Martinez -- Raul.Martinez@lewisbrisbois.com -- and John Haubrich, Jr. -- John.Haubrich@lewisbrisbois.com -- for Defendant and Respondent LEGEND ENERGY: Baswell Seeks Unpaid Back Wages and OT Pay --------------------------------------------------------- TANDY BASWELL, individually and on behalf of all others similarly situated, Plaintiff v. LEGEND ENERGY GROUP, LLC, Defendant, Case No. 7:20-cv-00055 (W.D. Tex., March 4, 2020) is a collective action complaint brought against Defendant for its alleged violation of the Fair Labor Standards Act and the New Mexico Minimum Wage Act. Plaintiff worked for Defendant as a Torque Hand in Texas and New Mexico from approximately July 2019 until September 2019, and was paid $300 per day worked plus an hourly rate of $15.00 per hour for each hour worked over 24-hours in a single shift. According to the complaint, Plaintiff did not receive overtime compensation at the required rate of time-and-one-half for all hours worked over 40 each workweek. Allegedly, Defendant set its workers' rate of pay and controlled the number of hours they worked, and improperly classified Plaintiff and the Putative Class Members as independent contractors. Plaintiff seeks to recover unpaid back wages, overtime compensation, liquidated damages, and other applicable penalties pursuant to the FLSA. Legend Energy Group, LLC is an oilfield service company and provides services for its clients in the oil and gas industry throughout Texas, Louisiana, and New Mexico. [BN] The Plaintiff is represented by: Clif Alexander, Esq. Lauren E. Braddy, Esq. ANDERSON ALEXANDER, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Tel: (361)452-1279 Fax: (361)452-1284 Emails: clif@a2xlaw.com lauren@a2xlaw.com LEGENDS HOSPITALITY: Contreras Seeks to Recover Withheld Gratuities ------------------------------------------------------------------- Alejandro Contreras, individually and on behalf of others similarly situated, Plaintiffs, v. Legends Hospitality, LLC, Legends Hosp. Holding Co., LLC, YGE Legends Holdings, LLC, New Mountain Partner IV, Daniel E. Smith, Martin J. Greenspun and any other related entities, Defendants, Case No. 151253/2020, (N.Y. Sup., February 4, 2020), seeks to recover unlawfully retained tips and gratuities owed under New York Labor Law and New York Codes, Rules and Regulations. Defendants operate a catering business in New York City where Contreras was employed as catering service staff. Defendants charge clients 20% in connection with the administration of catered events. Plaintiffs claim that this amount is a form of a gratuity that should be distributed amongst the wait staff. [BN] Plaintiff is represented by: Jeffrey K. Brown, Esq. Suzanne Leeds Klein, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Tel: (516) 873-9550 Email: sleeds@leedsbrownlaw.com LOT 74 REALTY: Overcharges Tenants, Martinez and Canela Claim ------------------------------------------------------------- The case, DANIEL MARTINEZ and VITORIA CANELA, on behalf of themselves and others similarly-situated, Plaintiffs v. ALFONSO DEJESUS; RUBY ECHEVARRIA; LOT 74 REALTY LLC, Defendants, Case No. 651436 (N.Y. Sup. Ct., March 3, 2020), arises from Defendants' alleged decades-long violation of New York's Rent Stabilization Laws. According to the complaint, Defendants have systematically violated Rent Stabilization Law obligations for the Aqueduct Avenue Building and reaped the rewards of tax benefits available through New York's J-51 exemption programs for decades by failing to register the rents of the building; permanently removing apartments from the rent stabilized stock; neglecting to provide notice of the building's rent-stabilized status; and overcharging the tenants, including Plaintiffs, of the rent-regulated units hundreds of thousands of dollars. J-51 provides a tax exemption for certain qualifying properties to (i) encourage constructing, renovating, and maintaining affordable housing and (ii) protect senior citizens living on fixed incomes against rent increases. Plaintiffs seek to recover monetary damages from Defendants based on the unlawful overcharges, and other appropriate injunctive relief, costs and expenses. Alfonso DeJesus and Ruby Echevarria are agents of Lot 74 Realty. Lot 74 Realty LLC, the landlord of residential building 2523-2525 Aqueduct Avenue, Bronx New York 10468. [BN] The Plaintiffs are represented by: Zoe Kheyman, Esq. Jessica Bellinder, Esq. Robert Desir, Esq. LEGAL AID SOCIETY 260 East 161st Street, 8th Floor Bronx, NY 10451 Tel: (646)689-5138 Emails: zkheyman@legal-aid.org jxbellinder@legal-aid.org rrdesir@legal-aid.org - and - William J. Sushon, Esq. Will C. Autz, Esq. Lauren M. Wagner, Esq. Alec Schierenbeck, Esq. O'MELVENY & MEYERS LLP 7 Times Square New York, NY 10036 Tel: (212)326-2000 Emails: wsushon@omm.com wautz@omm.com lwagner@omm.com aschierenbeck@omm.com eevans@omm.com MARY JANE ELLIOTT: Sixth Cir. Flips Dismissal of Vanderkodde Suit ----------------------------------------------------------------- The U.S. Court of Appeals for the Sixth Circuit reversed the district court's judgment dismissing the cases, DANIEL VANDERKODDE; SUSAN BUCK; RUBY RoBINSON; ANITA BECKLEY; RITCHIE SWAGERTY, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants/Cross-Appellees (19-1091/1127/1128), v. MARY JANE M. ELLIOTT, P.C. (19-1091/1127); BERNDT & ASSOCIATES, P.C. (19-1091/1128), Defendants-Appellees/Cross-Appellants, LVNV FUNDING, LLC; MIDLAND FUNDING, LLC; MIDLAND CREDIT MANAGEMENT, INC.; ENCORE CAPITAL GROUP, INC., Defendants-Appellees (19-1091), Case Nos. 19-1091, 19-1127, 19-1128 (6th Cir.). In Exxon Mobil Corp. v. Saudi Basic Industries Corp., the Supreme Court made clear that the Rooker-Feldman doctrine -- which prohibits the lower federal courts from reviewing appeals of state-court decisions -- applies only to an exceedingly narrow set of cases. The putative class action brought under the Fair Debt Collection Practices Act and Michigan consumer laws is not the rare one that threads the Rooker-Feldman needle. The Plaintiffs are consumers who held credit accounts with various financial institutions and later defaulted on their debts. Defendants LVNV Funding, LLC and Midland Funding, LLC bought these debts and hired defendant Mary Jane M. Elliott, P.C., a law firm, to represent them in collection proceedings. In five separate actions, Elliott filed complaints and supporting affidavits in Michigan state court against plaintiffs on LVNV's or Midland Funding's behalf. Each suit resulted in a judgment against the debtor -- by default in Buck's, Robinson's, and Swagerty's cases, and by consent in Beckley's and VanderKodde's. After obtaining a court judgment against a debtor, a "judgment creditor" may resort to garnishment "to intercept the debtor's income at its source (say from the debtor's employer) rather than trying to collect from the debtor herself. Following this roadmap, the Defendants filed multiple requests and writs for garnishment in state court for each judgment debtor. At this stage, Defendant Berndt & Associates, P.C., a law firm, represented LVNV in plaintiff Swagerty's case, while Elliott remained counsel in the other cases. None of the judgment debtors (i.e., the Plaintiffs in the case) objected to any of the writs within the 14-day window for doing so. The case concerns the rate of post-judgment interest used in creating the writ-of-garnishment requests. Michigan law provides specific methods for calculating judgment interest. In many cases, including this one, it is calculated on the entire amount of the money judgment, including attorney fees and other costs, using the following method: "Interest on a money judgment recovered in a civil action is calculated at 6-month intervals from the date of filing the complaint at a rate of interest equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually, according to this section." In the writs of garnishment in the case, the outstanding amounts of the Plaintiffs' debts were calculated using the much higher post-judgment rate of 13%. It is the maximum interest rate allowed for a judgment rendered on a written instrument evidencing indebtedness with a specified or variable interest rate. But the underlying judgments were not so rendered. The three default judgments specify that they are not based on a note or other written evidence of indebtedness, and none of the judgments include any supporting written instrument. So, the Plaintiffs allege, use of the 13% rate was improper under Michigan law. The Plaintiffs claim that Defendants' use of the impermissibly high interest rate in the writs of garnishment led to the Defendants (1) falsely communicating that the Plaintiffs owed more money than they actually did and (2) collecting (and attempting to collect) more money from them than the law allowed. Both of these actions allegedly violate the Fair Debt Collection Practices Act ("FDCPA"), which prohibits debt collectors from employing false, deceptive, or misleading' practices. Seeking to represent thousands of Michigan consumers, the Plaintiffs brought suit in the U.S. District Court for the Western District of Michigan, alleging violations of the FDCPA; the Michigan Collection Practices Act, and the Michigan Occupational Code. Elliott and Berndt filed motions to dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(1). The district court granted their motions and dismissed the claims for lack of subject-matter jurisdiction. The Plaintiffs' lawsuit, the district court said, amounted to an appeal of the judgments and writs of garnishment in the state-court collection proceedings, and such appeals are barred under the Rooker-Feldman doctrine. F ollowing Elliott and Berndt's lead, the remaining Defendants also filed a motion to dismiss, arguing that Rooker-Feldman barred the claims against them, too. The district court granted that motion in a short order, relying on the reasoning in its previous dismissal order, and entered judgment. The Plaintiffs timely appealed. Elliott and Berndt filed cross-appeals raising statute-of-limitations defenses. The Sixth Circuit determines whether Rooker-Feldman bars a claim by looking to the source of the injury the Plaintiff alleges in the federal complaint. Faced with the defendants' jurisdictional challenge under Rooker-Feldman, the Sixth Circuit holds that the doctrine did not apply for two reasons. First, Rooker-Feldman applies only when a state court renders a judgment -- when the court investigates, declares, and enforces liabilities based on application of law to fact. Second, the Plaintiff's injuries stemmed not from the writs of garnishment themselves, but rather the costs included in them. Thus, the Sixth Circuit finds that that Rooker-Feldman does not apply because the Plaintiff's injuries stemmed from the Defendant's conduct, not the state-court judgment, as the Plaintiff claimed he was injured by the Defendant when it filed a false affidavit. Next, the Sixth Circuit finds that the Plaintiffs did not raise any objections in state court, either. The district court stated that applying Rooker-Feldman made "intuitive sense" because where parties are afforded an opportunity to challenge the amount of money that will be garnished, they should do so, instead of sitting on their hands and later suing in federal court. It is a valid concern, but not under Rooker-Feldman. Other doctrines, like res judicata, collateral estoppel, and forfeiture can discourage strategic sandbagging in litigation. Rooker-Feldman's focus lies elsewhere. Because Rooker-Feldman does not apply, the Sixth Circuit reverses the district court's dismissal for lack of subject-matter jurisdiction. Finally, the Defendants raise several alternate grounds on which to affirm the district court's dismissal of the case, including standing, "comity," and the statute of limitations (which Elliott and Berndt raise in their cross-appeals). But the district court did not address any of them. Because it is "a court of review, not of first view," the Sixth Circuit remands the case to the district court to resolve these issues in the first instance. For the reasons discussed, the Sixth Circuit reversed the district court's judgment, dismissed the cross-appeals, and remanded for further proceedings consistent with his Opinion. A full-text copy of the Sixth Circuit's Feb. 26, 2020 Opinion is available at https://is.gd/kNu9pT from Leagle.com. ARGUED: Theodore J. Westbrook -- twestbrook@westbrook-law.net -- WESTBROOK LAW PLLC, Grand Rapids, Michigan, for Daniel VanderKodde, Susan Buck, Ruby Robinson, Anita Beckley, and Ritchie Swagerty. Michael J. Cook -- michael.cook@ceflawyers.com -- COLLINS EINHORN FARRELL PC, Southfield, Michigan for Mary Jane M. Elliott, P.C. C. Thomas Ludden, LIPSON NEILSON P.C., Bloomfield Hills, Michigan, for Berndt & Associates, P.C. Theodore W. Seitz -- tseitz@dykema.com -- DYKEMA GOSSETT PLLC, Lansing, Michigan, for Midland Funding, LLC, Midland Credit Management, Inc., and Encore Capital Group, Inc. ON BRIEF: Theodore J. Westbrook, WESTBROOK LAW PLLC, Grand Rapids, Michigan, Phillip C. Rogers, Kevin J. Rogers, LAW OFFICE OF PHILLIP C. ROGERS, Grand Rapids, Michigan, for Daniel VanderKodde, Susan Buck, Ruby Robinson, Anita Beckley, and Ritchie Swagerty. Michael J. Cook, COLLINS EINHORN FARRELL PC, Southfield, Michigan for Mary Jane M. Elliott, P.C. C. Thomas Ludden, Karen A. Smyth -- ksmyth@lipsonneilson.com -- LIPSON NEILSON P.C., Bloomfield Hills, Michigan, for Berndt & Associates, P.C. Theodore W. Seitz, DYKEMA GOSSETT PLLC, Lansing, Michigan, for Midland Funding, LLC, Midland Credit Management, Inc., and Encore Capital Group, Inc. Nabil G. Foster -- nfoster@hinshawlaw.com -- HINSHAW & CULBERTSON LLP, Chicago, Illinois, for LVNV Funding, LLC. MAXIM HEALTHCARE: 10th Circuit Flips Final Judgment in Jordan Suit ------------------------------------------------------------------ In the case, THERESA JORDAN, individually and on behalf of the Proposed Colorado Rule 23 Class, Plaintiff-Appellee, v. MAXIM HEALTHCARE SERVICES, INC., Defendant-Appellant, Case No. 18-1290 (10th Cir.), the U.S. Court of Appeals for the Tenth Circuit reversed the district court's final judgment, vacated the award of $2,015,253.42 in overtime wages and $691,474.20 in prejudgment interest, and remanded the case to the district court with instructions to enter judgment in Maxim's favor. Under Colorado law, employers generally must pay all employees time-and-a-half wages for overtime hours. That said, the law carves out several express exemptions from thi srequirement. Specifically, employers need not pay overtime wages to companions, casual babysitters, and domestic employees employed by households or family members to perform duties in private residences. Maxim is a for-profit staffing company that provides customers with in-home care. Jordan worked for Maxim in Colorado as a home health-care worker. The parties do not dispute that in that capacity, Ms. Jordan and other similarly situated Maxim employees were "companions" under Colorado law, and Maxim concedes that it did not pay Ms. Jordan or its other "companions" time-and-a-half wages for overtime hours from 2012 through 2015. Ms. Jordan, on behalf of a class of Maxim companions, argues that the failure violated Colorado law. Ms. Jordan filed the putative class action in state court in May 2015. She alleged that Maxim violated Colorado law by refusing to pay her and other Maxim companions overtime wages as required by section 4 of the Wage Order. Maxim removed the suit to federal court. Once in federal court, Ms. Jordan moved for partial summary judgment as to Maxim's liability. In her motion, she argued that under the plain language of the companionship exemption, only those companions who were employed by households or family members were exempt from the Wage Order's overtime-pay requirement. She also pointed out that neither party disputed that Maxim was a third-party employer, that Ms. Jordan and the other class members were "companions" under Colorado law, and that Maxim had not paid Ms. Jordan or its other companions overtime wages from 2012 through 2015. Thus, Ms. Jordan reasoned, Maxim had improperly relied on the companionship exemption in denying Ms. Jordan and the other Maxim companions overtime wages, thereby rendering Maxim liable for all unpaid overtime for the relevant period and entitling Ms. Jordan to summary judgment against Maxim. Maxim cross-moved for summary judgment. It argued that the household modifier (i.e., the phrase, "employed by households or family members to perform duties in private residences") applied only to "domestic employees" and not to "companions" or "casual babysitters." In other words, according to Maxim, the companionship exemption extended to all companions -- including those employed by third-party employers. On that reading, Maxim concluded that, as a third-party employer, it had no duty to pay Ms. Jordan or the class of Maxim companions overtime wages. The district court sided with Ms. Jordan, adopting in all relevant respects her reading of the companionship exemption. It reasoned that under its plain language, the exemption applied only to companions who were employed by households or family members, and thus did not apply to employees working for third-party employers such as Maxim. For that reason, the court granted Ms. Jordan's summary-judgment motion in relevant part, and entered final judgment against Maxim and in favor of Ms. Jordan. Maxim now appeals from that judgment. It presents one question for the Court's review: Did the district court err in concluding that third-party employers are precluded from invoking the companionship exemption? Put differently, does the companionship exemption apply to companions working for third-party employers, and not just to those working for households or family members? The question before the Court is whether "companions" working for third-party employers -- rather than for households or family members -- fall within the companionship exemption. Applying Colorado's interpretive rules, the 10th Circuit first looks to whether the enacting body's intent is clear from the regulation's text and context. The enacting body is the Division, and the relevant text is the companionship exemption. The companionship exemption is ambiguous. And although the Court believes that the ordinary and particular meanings of the relevant terms suggest that the Division intended the companionship exemption to apply to companions employed by third-party employers (such as Maxim), that suggestion is not so strong as to render the exemption unambiguous. The 10th Circuit holds that the companionship exemption is ambiguous. One plausible reading is that the exemption applies to all companions. Or it could be read as applying to only those companions "employed by households or family members to perform duties in private residences." Nonetheless, the 10th Circuit concludes that the ordinary and particular meanings of "companions," "casual babysitters," and "domestic employees" suggest that the Division intended the former reading. That suggestion, however, is not so strong as to make the Division's intent "clear." Consequently, 10th Circuit may "look to other aids in construction" to pin down the proper scope of the companionship exemption. The 10th Circuit imparts that the companionship exemption is ambiguous but that the ordinary and particular meanings of "companions," "casual babysitters," and "domestic employees," along with other tools of construction, compel the conclusion that the companionship exemption applies to all companions—irrespective of whether their employers are households or family members on the one hand, or third-party companies, like Maxim, on the other. But the Court finds persuasive support for his conclusion in the Division's longstanding and consistent interpretation of the companionship exemption. An examination of that interpretation therefore follows. Finally, the 10th Circuit holds that the Division's longstanding and consistent interpretation of the companionship exemption as applying to companions employed by third-party employers persuasive. This persuasive authority gives him greater confidence in his conclusion -- reached through our analysis of the ordinary and particular meanings of the relevant terms and application of other aids of construction -- that Maxim's reading of the companionship exemption is the superior one. The 10th Circuit, therefore, holds that the companionship exemption applies to companions employed by third-party employers. To conclude, as companions employed by a third-party employer, Ms. Jordan and her fellow class members fall within the companionship exemption. As a result, they are not entitled to overtime wages under Colorado law. For that reason, the 10th Circuit reversed the district court's final judgment, vacated the award of $2,015,253.42 in overtime wages and $691,474.20 in prejudgment interest, and remanded the case to the district court with instructions to enter judgment in Maxim's favor. A full-text copy of the 10th Circuit's Feb. 19, 2020 Order is available at https://is.gd/5eKGUs from Leagle.com. Theresa Jordan, Plaintiff, represented by Gurdip S. Atwal -- tatwal@johnsonbecker.com -- Jacob Robert Rusch -- jrusch@johnsonbecker.com -- at Johnson Becker, PLLC; Neil B. Pioch -- NPioch@sommerspc.com -- at Sommers Schwartz, PC; Robert Eugene DeRose, II -- bderose@barkanmeizlish.com -- Robi J. Baishnab -- rbaishnab@barkanmeizlish.com -- at Barkan Meizlish Handelman Goodin DeRose Wentz, LLP Maxim Healthcare Services, Inc., Defendant, represented by Amanda Colette Dupree -- amanda.dupree@morganlewis.com -- Andrew George Sakallaris -- andrew.sakallaris@morganlewis.com -- Matthew James Sharbaugh -- matthew.sharbaugh@morganlewis.com -- Thomas F. Hurka -- thomas.hurka@morganlewis.com -- at Morgan Lewis & Bockius, LLP; Joseph L. Lambert -- joseph.lambert@hoganlovells.com -- Erin Lynn Sokol -- erin.sokol@hoganlovells.com -- at Hogan Lovells US LLP MDL 2047: Taishan Settlement in Drywall Suit Has Final Approval --------------------------------------------------------------- In the case, IN RE: CHINESE-MANUFACTURED DRYWALL PRODUCTS LIABILITY LITIGATION THIS DOCUMENT RELATES TO: ALL CASES, SECTION "L"(5) (Except The Mitchell Co., Inc. v. Knauf Gips KG, et al., Civil Action No. 09-4115 (E.D. La.)), Civil Action MDL No. 2047 (E.D. La.), Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana (i) granted the Settlement Class Counsel's Motion for Entry of an Order and Judgment (1) Granting Final Approval of the Class Settlement with Taishan and (2) Certifying the Settlement Class; and (ii) granted in part the Settlement Class Counsel's Motion for an Award of Attorneys' Fees and Cost Reimbursements for Common Benefit Counsel and Individually Retained Attorneys. From 2004 through 2006, the housing boom in Florida and rebuilding efforts necessitated by Hurricanes Rita and Katrina led to a shortage of construction materials, including drywall. As a result, drywall manufactured in China was brought into the United States and used to construct and refurbish homes in coastal areas of the country, notably the Gulf Coast and East Coast. Sometime after the installation of the Chinese drywall, homeowners began to complain of emissions of foul-smelling gas, the corrosion and blackening of metal wiring, surfaces, and objects, and the breaking down of appliances and electrical devices in their homes. In an attempt to recoup their damages, these homeowners began to file suit in various state and federal courts against homebuilders, developers, installers, realtors, brokers, suppliers, importers, exporters, distributors, and manufacturers who were involved with the Chinese drywall. Because of the commonality of facts in the various cases, the litigation was designated as a multidistrict litigation. Pursuant to a Transfer Order from the United States Judicial Panel on Multidistrict Litigation on June 15, 2009, all federal cases involving Chinese drywall were transferred and consolidated for pretrial proceedings in MDL 09-2047 before the Louisiana District Court. The Chinese drywall at issue was largely manufactured by two groups of Defendants: (1) the Knauf Entities and (2) the Taishan Entities. The litigation has focused upon these two entities and their downstream associates and has proceeded on strikingly different tracks for the claims against each group. The Knauf Entities are German-based, international manufacturers of building products, including drywall, whose Chinese subsidiary, Knauf Plasterboard (Tianjin) Co., Ltd. ("KPT"), advertised and sold its Chinese drywall in the United States. On Dec. 20, 2011, the Knauf Entities and the PSC entered into a global, class Settlement Agreement ("Knauf Settlement Agreement"), which was designed to resolve all Knauf-related, Chinese drywall claims. Under the terms of the Knauf Settlement, homeowners had the choice of a sum certain or having the house totally remediated in addition to receiving reasonable costs and attorney fees. Furthermore, after a jury trial in a bellwether case, numerous defendants in the chain-of-commerce with the Knauf Entities entered into class settlement agreements, the effect of which settles almost all of the Knauf Entities' chain-of-commerce litigation. The total amount of the Knauf Settlement is estimated at $1.1 billion. Although the Court occasionally has to deal with settlement administration and enforcement issues, the Knauf portion of the litigation is now resolved. The litigation against the Chinese entities has taken a different course. The Chinese Defendants in the litigation include the principal Chinese-based Defendant, Taishan, namely, Taishan Gypsum Co. Ltd. ("TG") and its wholly-owned subsidiary, Taian Taishan Plasterboard Co., Ltd. ("TTP"). Other Chinese-based Defendants include the CNBM and BNBM Entities. A significant development in the Taishan aspect of the litigation occurred in the spring of 2019. On May 22 and 23, 2019, the parties underwent mediation with the goal of resolving the entirety of the Amorin1 and Brooke matters pending in the Eastern District of Louisiana, the Southern District of Florida, and the Eastern District of Virginia. On May 23, 2019, the parties agreed to a Term Sheet, and negotiations continued in person and by telephone for three months. All matters in the Amorin and Brooke actions were accordingly stayed by the remand courts and the Louisiana District Court, pending the execution of a Settlement Agreement between the parties. The stay was extended several times and preliminary approval of the Settlement Agreement was granted by the Court on Aug. 29, 2019. The proposed Taishan Settlement Agreement is the result of over a decade of litigation and a complex negotiation process. Specifically, it obligates Taishan to pay $248 million to fully resolve all claims of the Amorin class, the Plaintiffs named in the Brooke complaints, and any other property owners with Chinese drywall attributable to Taishan ("Absent Class Members"). The settlement funds are "intended to provide compensation for all property and remediation damages as well as Other Losses." Following preliminary approval, the Class Members were able to access the allocation model on the Settlement website and on the Court's docket. The parties undertook a significant effort to notify all the Class Members, including the Absent Class Members, of the proposed Settlement Agreement. Critically, each known Class Member was notified of the Settlement by mail and provided with a gross estimate of their award under the Settlement as calculated by the allocation model. The Taishan Settlement Agreement binds all the Class Members save those who formally opt-out from its terms. The Taishan Settlement Agreement is a historic achievement. It is, however, critically different from the Settlement Agreement reached in the Knauf aspect of the litigation. While the Knauf Settlement Agreement obligated Knauf to pay a designated amount to cover reasonable costs and attorney fees for both contract counsel and common benefit the counsel in addition to completely remediating the affected properties, the Taishan Settlement Agreement provides $248 million to resolve all claims and pay all attorney fees and costs. Taishan is not involved in the allocation of funds. Therefore, while the Knauf aspect of the litigation required the Court to fairly allocate designated funds among common benefit counsel and individually retained attorneys, the Court has a much more difficult task. First, the Court must determine what percentage of the total settlement fund is appropriately allocated to attorney fees and costs. Second, the Court must determine how to allocate that amount between common benefit counsel and individually retained attorneys. Third, the Court must individually allocate a specific portion of those fees to each attorney entitled to such an award. Furthermore, it is a time sensitive inquiry because the allocation of attorney fees and costs necessarily reduces the amount of settlement funds available for distribution to the individual pPlaintiffs in the matter. The Settlement Class Counsel has requested an award representing 30% of the aggregate amount of the Settlement for attorney fees and 3% for costs, totaling $74.4 million in fees and approximately $7,074,830.15 in costs. The Settlement Class Counsel seeks certification of the Settlement Class and final approval of the class settlements with Taishan Gypsum Company Ltd., formerly known as Shandong Taihe Dongxin Co., Ltd. and Taian Taishan Plasterboard Co. Ltd. In support of its motion, the Settlement Class Counsel argues that the settlement is fair, reasonable, and adequate in light of the specific requirements of Rule 23(e) and the Fifth Circuit's Reed factors. Further, the Settlement Class Counsel stresses that notice to the class complied with due process and that the overwhelming majority of class members support the settlement. At the Final Fairness Hearing, the Class Counsel stressed that the Settlement will provide significant benefits to almost 4,000 Plaintiffs and that the Settlement is an historic and substantial achievement in light of the procedural posture of the litigation, factual issues, the challenges of service, jurisdiction, and appeals, and the significant uncertainty of collecting on a potential judgment if the case went to trial. Judge Fallon finds that the proposed Settlement is the product of an arm's-length negotiation untainted by fraud or collusion. The Court also finds it reasonable to award $47.12 million to compensate both the common benefit counsel and the individually retained attorneys in light of the circumstances in the case, namely that the case involves property damage claims and that the attorney fees come out of the overall recovery available to claimants, unlike in the Knauf Settlement. As previously mentioned, 60% of the award will compensate the common benefit counsel, and 40% will compensate the contract counsel. The Court will determine the appropriate division of the common benefit fee among those counsel who performed common benefit work at a later date. In view of the nature and circumstances of the case, the Court concludes that an award of $2,836,242.88 is appropriate to cover the costs and expenses of common benefit counsel. The award is in addition to the attorney fee award of 19% of $248 million, or $47.12 million, to cover the fees of both the common benefit and the contract counsel. Although the total award is less than the 30% sought by Class Counsel, plus 3% for costs, the Court finds that it strikes a fair balance between the diligent and commendable effort exerted by the attorneys and the limited funds available to compensate the Class Members for their property damage. Finally, the Court agrees that the Priority Plaintiffs, the Select Claimants, and the Class Representatives have been significantly involved in the matter to the benefit of the entire class and finds that an incentive award is justified. However, the Court recognizes that this Settlement provides a limited fund for recovery and that any additional award to one claimant necessarily reduces the available funds for all other claimants. Accordingly, in the interest of justice and fairness to all the class members, the Court will award each Priority Plaintiff and Select Claimant an additional $5,000, and each Class Representative an additional $2,500. Considering the foregoing, Judge Fallon granted the Settlement Class Counsel's Motion for Entry of an Order and Judgment (1) Granting Final Approval of the Class Settlement with Taishan and (2) Certifying the Settlement Class. The Taishan Settlement Agreement is approved. The Court granted in part the Settlement Class Counsel's Motion for an Award of Attorneys' Fees and Cost Reimbursements for Common Benefit Counsel and Individually Retained Attorneys. The Counsel is awarded 19% of the Settlement funds, or $47.12 million for attorney fees, for both the common benefit counsel and the contract counsel. The common benefit counsel are entitled to 60% of the amount, or $28.272 million, and the contract counsel are entitled to 40% of the the amount, or $18.848 million. The Common benefit counsel is also awarded $2,836,242.88 for costs. The allocation of the contract counsel's fees will be allocated in accordance with the standard set forth in PTO 28(f) and applied in the Knauf matter. The Court will address the allocation and distribution of common benefit fees among those attorneys who performed common benefit work at a later date. A full-text copy of the District Court's Jan. 10, 2020 Order & Reasons is available at https://is.gd/Gu0Oq8 from Leagle.com. Lynn C. Greer, Special Master, pro se. J. Cal Mayo, Jr., Special Master, pro se. Plaintiff, Plaintiff, represented by Russ M. Herman -- rherman@hhklawfirm.com -- Herman, Herman & Katz, LLC & Leonard A. Davis -- ldavis@hhklawfirm.com -- Herman, Herman & Katz, LLC. Homebuilders and Installers Steering Committee, Defendant, represented by Phillip A. Wittmann -- pwittmann@stonepigman.com -- Stone, Pigman, Walther, Wittmann, LLC. Insurer Steering Committee, Defendant, represented by Judy Y. Barrasso, Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, 909 Poydras Street, Suite 2350, New Orleans, LA 70112 Defendant, Defendant, represented by Kerry James Miller, Fishman Haygood, LLP, 201 Saint Charles Avenue, Suite 4600, New Orleans, LA 70170-4600 & Andrew J. Brien -- brien@carverdarden.com -- Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux. Defendant, Liaison Counsel for Taishan, BNMB entities, and CNBM entities, Defendant, represented by Harry Rosenberg -- harry.rosenberg@phelps.com -- Phelps Dunbar, LLP. MDL 2420: Class Notice on Settlement in Antitrust Suit Directed --------------------------------------------------------------- In the case, IN RE LITHIUM ION BATTERIES ANTITRUST LITIGATION. This Document Relates to: All Indirect Purchaser Actions, Case No. 4:13-md-02420-YGR (N.D. Cal.), Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California, Oakland Division, granted the Indirect Purchaser Plaintiffs ("IPPs")'s Motion to Direct Notice Regarding Settlements with (1) Defendants LG Chem, Ltd. and LG Chem America, Inc.; (2) Hitachi Maxell Ltd. and Maxell Corp. of America; (3) and NEC Corp. The District Court finds that, for purposes of judgment on the proposed Settlement Agreements, it is likely to certify the Settlement Class, which is defined as all persons and entities who, as residents of the United States and during the period from Jan. 1, 2000 through May 31, 2011, indirectly purchased new for their own use and not for resale one of the following products which contained a lithium-ion cylindrical battery manufactured by one or more defendants or their coconspirators: (i) a portable computer; (ii) a power tool; (iii) a camcorder; or (iv) a replacement battery for any of these products. Having found that it will likely approve the Settlement Agreements and certify the Settlement Class, the Judge directed the IPPs to give notice of the proposed Settlement Agreements to the Settlement Class. The Court designated Jason Ames, Caleb Batey, Christopher Bessette, Cindy Booze, Matt Bryant, Steve Bugge, William Cabral, Matthew Ence, Drew Fennelly, Sheri Harmon, Christopher Hunt, John Kopp, Linda Lincoln, Patrick McGuiness, Joseph O'Daniel, Tom Pham, Piya Robert Rojanasathit, Bradley Seldin, Donna Shawn, David Tolchin, Bradley Van Patten, the City of Palo Alto, and the City of Richmond as the representatives for the Settlement Class for purposes of disseminating notice. The Court also designated Cotchett, Pitre & McCarthy, LLP; Hagens Hagens Berman Sobol Shapiro LLP; and Lieff Cabraser Heimann & Bernstein, LLP as Class Counsel for the Settlement Class. The Court appointed the firm Epiq Class Action & Claims Solutions as the Settlement Notice Administrator. The Settlement Class Counsel and their designees are authorized to expend funds from the escrow accounts to pay notice and administration costs as set forth in the Settlement Agreements. The Court approved the form of the Email Notice. The form of the Long Form Notice, including the exclusion and inclusion procedures, is also approved. The IPPs' notice provider (i) will provide notice of the settlements and the claims process consistent with the procedure outlined in the IPPs' Motion to Direct Notice Regarding Settlements; (ii) will cause banner ads to be placed on the websites as discussed in the Notice Plan, or substantially similar websites should some circumstance make it impossible to post on the precise websites listed in the Notice Plan; (iii) will publish notice in sponsored search listings on major search engines, as described in the Notice Plan; (iv) will send informational releases regarding the case as an email blast to media outlets nationwide, including newspapers, magazines, national wire services, television, radio and online media, as discussed in the Notice Plan; and (v) will maintain the case-specific website, toll-free telephone number, and postal mailing address to further assist potential settlement class members in understanding their rights under the settlements. The Court set the following schedule for the dissemination of class notice and the scheduling of further litigation events, including but not limited to, the final approval hearing, opt-out and objection deadlines, and deadlines by which a motion for attorneys' fees and litigation expenses will be submitted: a. Notice Campaign - Begins Feb. 11, 2020 b. Last Day to file IPPs' Motion for Attorneys' Fees and Reimbursement of Litigation Expenses - March 9, 2020 and c. Exclusion and Objection Deadline - April 13, 2020 d. Motion for Final Approval and Response to Objections (if any) - May 5, 2020 e. Final Approval Hearing - May 20, 2020, 2:00 p.m. Consistent with the schedule, each member of the settlement class will have the right to be excluded from the settlement class by mailing a request for exclusion to the claims administrator to be postmarked no later than April 13, 2020. Requests for exclusion must be in writing and set forth the name and address of the person or entity that wishes to be excluded, any trade name or business name and address used by such person or entity, and must be signed by the class member seeking exclusion. No later than May 5, 2020, Settlement Class Counsel will file with the Court a list of all persons or entities who have timely requested exclusion from the settlement class as provided in the settlement agreements. Each member of the settlement class that has not timely excluded themselves from the settlement class will have the right to object to the new Distribution Plan by filing written objections with the Court no later than April 13, 2020. Failure to timely file written objections will preclude a class member from objecting to the settlements. Each member of the settlement class as provided will have the right to appear at the Fairness Hearing by filing a notice of intention to appear. The Court will conduct a Fairness Hearing on May 20, 2020, at 2:00 p.m. All briefs, memoranda, and papers in support of final approval of the settlement will be filed no later than May 5, 2019. A full-text copy of the District Court's Jan. 10, 2020 Order is available at https://is.gd/dHzUdj from Leagle.com. Kevin Young, Plaintiff, represented by Jeff D. Friedman -- jefff@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP. Kevin Young, Plaintiff, represented by George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig -- jasonz@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett -- shanas@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP & Steve W. Berman -- steve@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, pro hac vice. Bradley Seldin, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, George W. Sampson, Hagens Berman Sobol Shapiro LLP, Jason Allen Zweig, Hagens Berman Sobol Shapiro LLP, Shana E. Scarlett, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Bruce Sterman, Plaintiff, represented by Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP & Steve W. Berman, Hagens Berman Sobol Shapiro LLP, pro hac vice. Charles Carte, Plaintiff, represented by Guido Saveri -- guido@saveri.com -- Saveri & Saveri, Inc., Brian P. Murray -- bmurray@glancylaw.com -- Glancy Prongay & Murray LLP, Cadio R. Zirpoli -- cadio@saveri.com -- Saveri & Saveri, Inc., David Yau- Tian Hwu -- dhwu@saveri.com -- Saveri and Saveri Inc., Geoffrey Conrad Rushing -- mheaphy@saveri.com -- Saveri & Saveri Inc., Gregory Bradley Linkh -- glinkh@glancylaw.com -- Glancy Prongay & Murray LLP, Lee Albert -- lalbert@glancylaw.com -- Glancy Prongay & Murray LLP, Lisa Maria Saveri -- lisa@saveri.com -- Saveri & Saveri Inc., Richard Alexander Saveri -- rick@saveri.com -- Saveri and Saveri Inc, Richard Alexander Saveri, Saveri & Saveri, Inc., Susan Gilah Kupfer -- skupfer@glancylaw.com -- Glancy Prongay & Murray LLP & Todd Anthony Seaver, Berman Tabacco. Brian Hanlon, Plaintiff, represented by Brent W. Johnson -- bjohnson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC, Jeff D. Friedman, Hagens Berman Sobol Shapiro LLP, Kit A. Pierson -- kpierson@cohenmilstein.com -- Cohen Milstein Sellers and Toll PLLC & Laura M. Alexander -- lalexander@cohenmilstein.com -- Cohen Milstein Sellers and Toll. Nichole M. Gray, Plaintiff, represented by Guido Saveri, Saveri & Saveri, Inc., Aaron James Broussard, Broussard and Hart LLC, David Yau-Tian Hwu, Saveri and Saveri Inc., Douglas A. Millen -- dmillen@fklmlaw.com -- Freed Kanner London & Millen LLC, Lisa Maria Saveri, Saveri & Saveri Inc., Richard Alexander Saveri, Saveri and Saveri Inc, Richard Kirchner, Bonsignore & Brewer, Richard Alexander Saveri, Saveri & Saveri, Inc., Robert J. Bonsignore -- rbonsignore@class-actions.us -- Bonsignore Trial Lawyers, PLLC & Todd Anthony Seaver -- tseaver@bermantabacco.com -- Berman Tabacco. Woodrow Clark, II, Plaintiff, represented by Brian Joseph Barry - - bribarry1@yahoo.com -- Law Offices of Brian Barry, James E. Cecchi, Carella Byrne, Lindsey H. Taylor -- LTaylor@carellabyrne.com -- Carella Byrne & Todd Anthony Seaver, Berman Tabacco. Rebecca Cervenak, Plaintiff, represented by William James Doyle, II -- bill@doylelowther.com -- Doyle Lowther LLP. John Russo, Plaintiff, represented by William James Doyle, II -- jim@doylelowther.com -- Doyle Lowther LLP, James Robert Hail, Doyle Lowther & Katherine S. DiDonato, Shustak Reynolds & Partners, P.C.. LG Chem Ltd., Defendant, represented by Benjamin Edward Waldin -- bwaldin@eimerstahl.com -- Eimer Stahl LLP, Brian Yanlang Chang -- bchang@eimerstahl.com -- Eimer Stahl LLP, Jungmin Lee -- jlee@eimerstahl.com -- Eimer Stahl LLP, Nathan P. Eimer -- neimer@eimerstahl.com -- Eimer Stahl LLP & Vanessa Greenwood Jacobsen -- vjacobsen@eimerstahl.com -- Eimer Stahl LLP. LG Chem America, Inc, Defendant, represented by Benjamin Edward Waldin, Eimer Stahl LLP, Brian Yanlang Chang, Eimer Stahl LLP, Jungmin Lee, Eimer Stahl LLP, Nathan P. Eimer, Eimer Stahl LLP & Vanessa Greenwood Jacobsen, Eimer Stahl LLP. Samsung SDI America Inc, Defendant, represented by John Roberti - - john.roberti@allenovery.com -- Allen & Overy LLP, Bradley Pensyl -- bradley.pensyl@allenovery.com -- Allen and Overy LLP, Jacob S. Pultman -- jacob.pultman@allenovery.com -- Allen Overy LLP, Matthew R. Boucher -- matthew.boucher@allenovery.com -- Allen and Overy LLP, Michael S. Feldberg -- michael.feldberg@allenovery.com -- Allen and Overy LLP & Nneka Ukpai -- Nneka.Ukpai@AllenOvery.com -- Allen and Overy LLP. Hitachi Ltd., Defendant, represented by Craig P. Seebald -- cseebald@velaw.com -- Vinson & Elkins LLP, Elliott J. Joh -- elliott.joh@squirepb.com -- Vinson and Elkins LLP & Matthew J. Jacobs -- mjacobs@velaw.com -- Vinson & Elkins LLP. Hitachi Maxell, Ltd, Defendant, represented by Christopher Walter James -- cjames@velaw.com -- Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine -- jlevine@velaw.com -- Vinson Elkins LLP, Jeremy C. Keeney -- jkeeney@velaw.com -- Vinson and Elkins L.L.P., Lindsey Robinson Vaala -- lvaala@velaw.com -- Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett -- tbohnett@velaw.com -- Vinson and Elkins L.L.P.. Maxell Corporation of America, Defendant, represented by Christopher Walter James, Vinson and Elkins LLP, Craig P. Seebald, Vinson & Elkins LLP, Elliott J. Joh, Vinson and Elkins LLP, Jason Alan Levine, Vinson Elkins LLP, Jeremy C. Keeney, Vinson and Elkins L.L.P., Lindsey Robinson Vaala, Matthew J. Jacobs, Vinson & Elkins LLP & Thomas William Bohnett, Vinson and Elkins L.L.P.. Samsung SDI Co Ltd, Defendant, represented by John Roberti, Allen & Overy LLP, Bradley Pensyl, Allen and Overy LLP, Jacob S. Pultman, Allen Overy LLP, Matthew R. Boucher, Allen and Overy LLP, Michael S. Feldberg, Allen and Overy LLP & Nneka Ukpai, Allen and Overy LLP. Maxwell Corporation of America, Defendant, represented by Thomas William Bohnett, Vinson and Elkins L.L.P.. Hitachi Maxell Corporation of America, Defendant, represented by Lindsey Robinson Vaala. Toshiba America Electronic Components Inc, Defendant, represented by Christopher M. Curran -- ccurran@whitecase.com -- White & Case & J. Frank Hogue -- fhogue@whitecase.com -- White Case LLP. METALS USA: Filing of Bid for Final Nod of Wilson Deal Due March 27 ------------------------------------------------------------------- In the case, JAMES WILSON, an individual, and JACK WHITE, an individual, on behalf of themselves and all others similarly situated, Plaintiffs, v. METALS USA, INC., a Delaware Corporation; and DOES 1-100, inclusive, Defendants, Case No. 2:12-CV-00568-KJM-DB (E.D. Cal.), Magistrate Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California has entered an order continuing the deadline to file Motion for Final Approval and associated deadlines. The Parties and the Claims Administrator will abide by the following schedule with respect to the resolution of claims, the filing of the final approval papers, and the final approval hearing: a. Last Day for Parties to resolve all disputes relating to the Claim Forms and Provide Claims Administrator with final resolution of disputes -- No later than March 2, 2020 b. Last Day for Claims Administrator to provide the Parties with a Declaration Re: Notice to the Class, Claim Forms Received, Deficiency Letters Issued, Response to Deficiency Letters, and Final Amounts to be Paid -- No later than March 11, 2020 c. Last Day for Plaintiffs to file Motion for Final Approval of Class Action -- No later than March 27, 2020 d. Settlement Hearing on Plaintiffs' Motion for Final Approval of Class Action Settlement -- April 24, 2020 at 10:00 a.m. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/B03kEq from Leagle.com. James Wilson & Jack White, Plaintiffs, represented by Crystal Lee Matter -- crystal@matterlawapc.com -- Stonebarger Law APC, Gene Joseph Stonebarger, Esq. -- gstonebarger@stonebargerlaw.com -- and Richard David Lambert, Esq. -- rlambert@stonebargerlaw.com -- STONEBARGER LAW. Rita White, Plaintiff, represented by Gene Joseph Stonebarger, Stonebarger Law & Richard David Lambert, Stonebarger Law. Metals USA, Inc., A Delaware Corporation, Defendant, represented by Adrian J. Sawyer, Esq. -- sawyer@kerrwagstaffe.com -- KERR & AGSTAFFE, LLP -- Bartholomew Dalton, Esq. -- Bdalton@kilpatricktownsend.com -- KILPATRICK TOWNSEND & STOCKTON, LLP MONTGOMERY COUNTY, NY: Motions in Limine in Hill Suit Partly Okayed ------------------------------------------------------------------- In the case, PERRY HILL and JAMES ROGERS, both individually and on behalf of a class of others similarly situated, Plaintiffs, v. COUNTY OF MONTGOMERY, MICHAEL AMATO and MICHAEL FRANKO, Defendants, Case No. 9:14-cv-00933 (BKS/DJS) (N.D. N.Y.), Judge Brenda K. Sannes of the U.S. District Court for the Northern District of New York granted in part and denied in part the parties' motions in limine. Plaintiffs Hill and Rogers bring the conditions-of-confinement class action under 42 U.S.C. Section 1983 against the Defendant, alleging that the Defendants failed to provide adequate nutrition while they were in the Montgomery County Jail ("MCJ") in Fultonville, New York, in violation of the Eighth and Fourteenth Amendments. Presently before the Court are the parties' motions in limine. In their motions, the parties address the admissibility of: (1) inmate grievances, (2) class questionnaires, (3) evidence regarding the amount of time between inmates' meals and the "absence of a commissary at MCJ," (4) evidence of the commissary's return in 2019, (5) evidence of inmate weight loss, (6) evidence of prior civil rights actions against Defendants Amato and Franko, and (7) evidence of the "Hotel Amato" sign at MCJ. The Defendants also move to limit liability against Defendants Amato and Franko to the time period prior to their respective retirements from MCJ. On Feb. 14, 2020, the Court held a pretrial conference and heard oral argument on the parties' motions. The Plaintiffs seek to admit into evidence food-related grievances various inmates filed at MCJ between 2011 and 2015 on the ground that they show the Defendants had notice of inmate complaints of hunger and inadequate nutrition. The Defendants oppose the introduction of the grievances on hearsay grounds. Judge Sannes finds that the Plaintiff has not demonstrated how inmates who made grievances were acting in the course of a regularly conducted business activity or how making the grievances was a regular practice of that activity. And, even assuming that the Plaintiffs are able to lay a foundation showing Defendant Amato or Franko was aware of the grievances, they would not be hearsay if they were admitted to show that the Defendants had notice of complaints regarding the food being provided at MCJ. Although the Defendants argue that the Plaintiffs' inherent purpose in introducing the evidence is for the truth of the statements included in the grievances, the Court, if requested, will issue a limiting instruction at the time of introduction, and at the end of the case, cautioning the jury to consider the grievances only on the issue of notice, and not for the truth of the allegations in the grievances. The Defendants seek to preclude as hearsay, questionnaires completed by class members concerning their experience at MCJ. The Plaintiffs stated at the pretrial conference that they do not intend to introduce the questionnaires into evidence. Indeed, the questionnaires are not on their exhibit list. Accordingly, the Defendants' motion to preclude the questionnaires is denied as moot. The Defendants seek to prohibit the Plaintiffs from introducing evidence "related to the amount of time between inmates' meals" and the "absence of a commissary" on the grounds that such evidence is inadmissible under Rules 402 and 403 because it would only confuse the jury as to the relevant issues. The Judge finds that the length of time between meals and the absence of any other source of food, and the impact these conditions had on the hunger inmates allegedly experienced at MCJ have long been part of the conditions of confinement claim in the case. Moreover, as the jury must consider whether the conditions "alone or in combination" posed a danger to inmates' health, evidence concerning the timing of the meals, and the absence of any other food source, is both material and highly relevant. The Judge therefore finds that the probative value of the evidence substantially outweighs any danger of confusing the issues. Accordingly, the Defendants' motion to preclude evidence regarding the time between meals and the absence of a commissary is denied. The Defendants also seek to preclude the Plaintiffs from introducing evidence that the Sheriff who took over following Defendant Amato's retirement, reopened the commissary in 2019. They assert Rule 407 prohibits evidence of subsequent remedial measures. The Judge finds that the Plaintiffs do not explain how the return of the commissary is relevant to the class definition. To the extent they intend to introduce such evidence for the purpose of showing a commissary was feasible, it is not clear that feasibility is a contested issue. The Judge's ruling will await trial. If the Defendants open the door at trial to the feasibility of a commissary, evidence of its reopening will be admissible. The Defendants then seek to bar the Plaintiffs from introducing evidence of inmate weight loss on the ground that such evidence is relevant to the issues of causation and damages only and should not be admitted during the liability phase of the trial. The Judge holds that weight loss may be relevant to show Defendant Franko knew that inmates were not receiving a sufficient number of calories. Accordingly, the Defendants' motion to preclude evidence of weight loss is denied. The Defendants further seek to preclude the Plaintiffs from introducing evidence of prior civil rights lawsuits against them. Because the Plaintiffs do not oppose this aspect of the Defendants' motion, it is, accordingly, denied as moot. The Defendants move to bar the Plaintiffs from referring to a sign posted in the MCJ intake area, arguing the sign has limited probative value, is unfairly prejudicial, confuses the issues, will mislead the jury, cause undue delay, and waste time. To the extent the Plaintiffs offer the Hotel Amato sign to show Defendant Amato's alleged state of mind or intent toward the inmates of MCJ, they offer it for a proper purpose for which it appears to be highly probative. With respect to the Defendants' argument that it is unfairly prejudicial, the Judge notes that because virtually all evidence is prejudicial to one party or another, to justify exclusion under Rule 403, the prejudice must be unfair. The unfairness contemplated involves some adverse effect beyond tending to prove a fact or issue that justifies admission. While it would appear that the sign's probative value substantially outweighs the danger of unfair prejudice and other 403 concerns, she will reserve on ruling on this issue until trial. Finally, Defendants Amato and Frank assert they should not be held liable for anything at MCJ following their respective retirements. The Plaintiffs agree that Defendant Amato's retirement marks the end of the liability period. They also agree that Defendant Franko cannot be held liable for anything after his retirement in November 2016. Accordingly, the Defendants' motion to preclude liability after Defendants Amato and Franko's retirement is denied as moot. For these reasons, Judge Sannes granted in part and denied in part the parties' motions in limine. A full-text copy of the Court's Feb. 19, 2020 Memorandum-Decision & Order is available at https://is.gd/PLRRgS from Leagle.com. Perry Hill, both individually and on behalf of a class of others similarly situated, Plaintiff, represented by Elmer R. Keach, III , Law Offices of Elmer Robert Keach, III, P.C., 1 Pine West Plaza, Suite 109, Albany, NY 12205, Jason S. Rathod - jrathod@classlawdc.com - Migliaccio & Rathod LLP, pro hac vice, Maria K. Dyson , Law Offices of Elmer Robert Keach, III, P.C., 1 Pine West Plaza, Suite 109, Albany, NY 12205, & Nicholas A. Migliaccio - nmigliaccio@classlawdc.com - Migliaccio & Rathod LLP. James Rogers, Plaintiff, represented by Elmer R. Keach, III , Law Offices of Elmer Robert Keach, III, P.C., Maria K. Dyson , Law Offices of Elmer Robert Keach, III, P.C. & Nicholas A. Migliaccio , Migliaccio & Rathod LLP. County of Montgomery, Michael Amato, Sheriff, Montgomery County & Michael Franko, Jail Administrator, Montgomery County Jail, Defendants, represented by Chelsea E. Manocchi - cmanocchi@goldbergsegalla.com - Goldberg Segalla, LLP & Jonathan M. Bernstein - jbernstein@goldbergsegalla.com - Goldberg, Segalla Law Firm. PERSONALIZATIONMALL: Barnes Sues over Collection of Biometrics --------------------------------------------------------------- DERRICK BARNES, on behalf of himself and all others similarly situated, Plaintiff v. PERSONALIZATIONMALL.COM, LLC, Defendant, Case No. 2020CH02695 (Ill. Cir., Cook Cty., March 4, 2020) is a class action complaint brought against Defendant for its alleged unlawful collection, use, and storage of sensitive biometric data in violation of the Biometric Information Privacy Act. According to the complaint, the Defendant's employees, including Plaintiff, are required to place their finger on Defendant's biometric time clock to use their fingerprint as part of a means of authentication. The complaint asserts that Defendant: -- failed to properly inform them in writing that their biometric information or identifiers were being collected; -- failed to properly inform them of the specific purpose and length of time for which their fingerprints were being collected, stored, and used, as required by the BIPA; -- failed to create or make available retention schedule and guidelines for permanently destroying their fingerprints, as required by the BIPA; and -- failed to seek a prior written authorization from them to collect, capture, or otherwise obtain their fingerprints, as required by the BIPA. PersonalizationMall.com offers a wide selection of high-quality personalized gifts for all recipients and occasions.[BN] The Plaintiff is represented by: Alejandro Caffarelli, Esq. Lorrie T. Peeters, Esq. Katherine Stryker, Esq. CAFFARELLI & ASSOCIATES LTD. 224 N. Michigan Ave., Ste. 300 Chicago, IL 60604 Tel: (312)763-6880 Emails: acaffarelli@caffarelli.com lpeeters@caffarelli.com PILOT TRAVEL: Discovery & Entry of Sched Order in Drasal Stayed --------------------------------------------------------------- In the case, STEVEN C. DRASAL, Individually and On Behalf of All Others Similarly Situated, Plaintiff, v. PILOT TRAVEL CENTERS, LLC d/b/a PILOT FLYING J, Defendants, Case No. 19-981 KWR/CG (D. N.M.), Chief Magistrate Judge Carmen E. Garza of the U.S. District Court for the District of New Mexico granted the parties' Stipulated Motion to Stay Discovery and to Stay Entry of a Scheduling Order Pending the Court's Ruling on Defendant's Motion to Compel Arbitration, Motion to Enforce Class Action Waiver and Motion to Dismiss, filed Feb. 13, 2020. The Magistrate finds the Motion to be well-taken. The discovery and entry of a scheduling order are stayed until the Defendants' Motion to Compel Arbitration, filed Jan. 14, 2020, is decided by the presiding judge. The Court's Initial Scheduling Order and telephonic Rule 16 Scheduling Conference, set for Feb. 20, 2020, are vacated. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/FhqHgl from Leagle.com. Steven C. Drasal, individually and on behalf of all others similarly situated, Plaintiff, represented by Edmond S. Moreland, Jr. -- edmond@morelandlaw.com -- Moreland Verrett, PC & Daniel A. Verrett -- daniel@morelandlaw.com. Pilot Travel Centers, LLC, doing business as Pilot Flying J, Defendant, represented by Laura Renee Ackermann -- Laura.Ackermann@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith LLP & Ryan M. Walters -- Ryan.Walters@lewisbrisbois.com -- Lewis Brisbois Bisgaard & Smith, LLP. POLARIS INDUSTRIES: Court Narrows Claims in Products Liability Suit ------------------------------------------------------------------- Judge Wilhelmina M. Wright of the U.S. District Court for the District of Minnesota granted in part and denied in part the Defendants' motion to dismiss the Plaintiffs' first amended consolidated class-action complaint in In re Polaris Marketing, Sales Practices, and Products Liability Litigation, Case No. 18-cv-0939 (WMW/DTS) (D. Minn.). The Plaintiffs are 14 individuals who reside in 13 states. Defendants Polaris Industries, Inc. and Polaris Sales Inc. design and manufacture off-road vehicles and their component parts, including engines. Each Plaintiff, between approximately May 8, 2014, and Feb. 9, 2018, purchased an off-road vehicle manufactured by the Defendants. The Plaintiffs allege that a design defect, namely "excessive heat defect," has caused more than 250 fires, more than 30 severe injuries, and at least three deaths. According to them, the excessive-heat design defect is common to all of the vehicles at issue, which are equipped with an unusually high-powered "ProStar" engine. Seven of the Plaintiffs -- Luna, Halvorsrod, Guthrie, Rogers, Elkin, Turgeon, and Rodriguez -- allege that during the operation of their off-road vehicles, the vehicles caught fire, which resulted in a total loss of the vehicles. In April 2018, the Plaintiffs commenced multiple putative class-action lawsuits against the Defendants arising from the alleged defects and fire hazards associated with the class vehicles. United States Magistrate Judge David T. Schultz consolidated these cases and appointed interim counsel to act on behalf of the putative class. Magistrate Judge Schultz also ordered the Plaintiffs to file a consolidated complaint, which they filed on June 15, 2018. The consolidated complaint alleged 54 counts against the Defendants. On March 6, 2019, the Court granted in part and denied in part the Defendants' motion to dismiss the Plaintiffs' consolidated complaint. In doing so, the Court dismissed without prejudice claims asserted by seven of the Plaintiffs for lack of standing. The Court also dismissed without prejudice the breach-of-warranty, Magnuson-Moss Warranty Act ("MMWA"), and unjust-enrichment claims asserted by two of the Plaintiffs. And the Court dismissed with prejudice the fraudulent-omission claims asserted by two of the Plaintiffs. The Plaintiffs amended their consolidated complaint on May 14, 2019, adding four Plaintiffs from three other states. Counts 2 through 65 of the Plaintiffs' first amended consolidated complaint allege state-law claims, including violations of state consumer-fraud laws, breach of express and implied warranties, fraudulent omission, and unjust enrichment. These claims pertain to the 13 states in which the Plaintiffs purchased allegedly defective off-road vehicles. The Plaintiffs allege that the engine defects have diminished the value of their vehicles and, had they known about the engine defects, they either would not have purchased the vehicle or would have paid significantly less for the vehicle. The Plaintiffs seek injunctive and monetary relief, and they expressly decline to seek damages for any personal injuries resulting from the alleged engine defects. The Defendants move to dismiss each count of the Plaintiffs' amended consolidated complaint except for (1) Plaintiff Luna's unjust-enrichment and breach-of-warranty claims pursuant to California law; (2) Plaintiff Halvorsrod's and Plaintiff Rogers' consumer-fraud claims pursuant to Florida and Minnesota law, respectively; (3) Plaintiff Turgeon's unjust-enrichment and consumer-fraud claims pursuant to South Dakota law; and (4) Plaintiff Guthrie's redhibition claim pursuant to Louisiana law. The Plaintiffs' claims must be dismissed, the Defendants contend, for lack of standing, Fed. R. Civ. P. 12(b)(1), or for failure to state a claim on which relief can be granted, Fed. R. Civ. P. 12(b)(6). Among other things, Judge Wright finds that because Plaintiffs Bruner, Lenz, Zeeck, Berens, Jacks, Forrest, and Beattie fail to allege a particularized and actual injury in fact, these Plaintiffs lack Article III standing to pursue their claims in federal court. Consequently, the following counts are dismissed without prejudice for lack of subject-matter jurisdiction: Count 1 as to the No-Fire Plaintiffs, Counts 2 through 6 as to Plaintiff Bruner, Counts 17 through 25 as to Plaintiffs Lenz and Zeeck, Counts 37 through 46 as to Plaintiffs Berens and Jacks, Counts 57 through 61 as to Plaintiff Forrest, and Counts 62 through 65 as to Plaintiff Beattie. Although both parties cite federal decisions in support of their respective positions, none is authoritative as to the Court, Pennsylvania state courts, or Texas state courts. The Court's research has not discovered any case law from Pennsylvania or Texas courts that would settle the issue. Nor has the Court's research found a legal requirement in either Pennsylvania or Texas law for a direct conferral of a benefit on a defendant to maintain an unjust-enrichment claim. For these reasons, the Judge granted the Defendants' motion to dismiss as to the unjust-enrichment claims asserted by Plaintiffs Halvorsrod and Rogers, (Counts 16 and 36), and denied as to the unjust-enrichment claims asserted by Plaintiffs Elkin and Rodriguez, (Counts 51 and 61). Counts 16 and 36 are dismissed with prejudice. The amended consolidated complaint alleges that, before purchasing his car, Plaintiff Luna communicated with friends and a salesperson at Mountain Motorsports in Ontario, California. But the Plaintiffs do not allege that Mountain Motorsports is one of the Defendants' authorized dealerships. As alleged, Plaintiff Luna's fraud claims do not identify any actionable statement or omission attributable to Defendants. As such, Luna fails to plead his fraud claims with particularity, as required. For these reasons, Plaintiff Luna's fraud claims, (Counts 7, 10, and 12), are dismissed without prejudice. For these reasons, Judge Wright granted in part and denied in part the Defendants' motion to dismiss the Plaintiffs' amended consolidated complaint. Counts 15, 16, 27, 29 through 31, 35, 36, 47, 50, 57 (as asserted by Plaintiff Isaac Rodriguez), and 60 (as asserted by Plaintiff Isaac Rodriguez) of the amended consolidated complaint, are dismissed with prejudice. Count 1 (as asserted by all Plaintiffs except Plaintiff Luna), 2 through 7, 10, 12, 14, 17 through 25, 28, 33, 34, 37 through 46, 48, 49, 53 through 55, 57 through 61 (as asserted by Plaintiff Bryan Forrest), 58 (as asserted by Plaintiff Isaac Rodriguez), 59 (as asserted by Plaintiff Isaac Rodriguez), and 62 through 65 of the amended consolidated complaint, are dismissed without prejudice. A full-text copy of the Court's Feb. 26, 2020 Order is available at https://is.gd/gYd6p7 from Leagle.com. Plaintiffs' Interim Co-Lead Counsel, Plaintiff, represented by Adam J. Levitt -- alevitt@dlcfirm.com -- DiCello Levitt Gutzler LLC, pro hac vice, Karl L. Cambronne -- kcambronne@chestnutcambronne.com -- Chestnut Cambronne, PA, Roland Karim Tellis, Baron Budd PC, pro hac vice & W. Daniel Miles, III -- info@baronbudd.com -- Beasley Allen Crow Methvin Portis & Miles, P.C. Plaintiffs' Liaison Counsel, Plaintiff, represented by Bryan L. Bleichner -- #bbleichner@chestnutcambronne.com -- Chestnut Cambronne PA & Karl L. Cambronne, Chestnut Cambronne, PA. James Bruner, individually and on behalf of all others similarly situated, Plaintiff, represented by Adam J. Levitt, DiCello Levitt Gutzler LLC, pro hac vice, Bryan L. Bleichner, Chestnut Cambronne PA, Courtney Davenport, The Davenport Law Firm LLC, pro hac vice, Daniel R. Ferri, DiCello Levitt Gutzler LLC, pro hac vice, H. Clay Barnett, III, Beasley Allen, Crow, Methvin, Portis & Miles, P.C., pro hac vice, Jeffrey D. Bores, Chestnut Cambronne, PA, John E. Tangren, DiCello Levitt & Casey LLC, pro hac vice, Karl L. Cambronne, Chestnut Cambronne, PA & Wilson Daniel Miles, III, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., pro hac vice. Michael Zeeck, individually and on behalf of all others similarly situated & Ed Beattie, individually and on behalf of all others similarly situated, Plaintiffs, represented by Adam J. Levitt, DiCello Levitt Gutzler LLC, pro hac vice, Bryan L. Bleichner, Chestnut Cambronne PA, Courtney Davenport, The Davenport Law Firm LLC, pro hac vice, Daniel R. Ferri, DiCello Levitt Gutzler LLC, pro hac vice, H. Clay Barnett, III, Beasley Allen, Crow, Methvin, Portis & Miles, P.C., pro hac vice, Jeffrey D. Bores, Chestnut Cambronne, PA, John E. Tangren, DiCello Levitt & Casey LLC, pro hac vice, Karl L. Cambronne, Chestnut Cambronne, PA & Wilson Daniel Miles, III, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., pro hac vice. Jose Luna, individually and on behalf of those similarly situated, Plaintiff, represented by Clifford L. Carter -- cliff@cwclawfirm.com -- Carter Wolden Curtis, LLP, David Fernandes, Jr. -- dfernandes@baronbudd.com -- David Fernandes, pro hac vice, Gregory N. McEwen -- gmcewen@mcewenlaw.com -- McEwen Law Firm, Ltd., Karl L. Cambronne , Chestnut Cambronne, PA, Kirk Jerome Wolden -- kirk@cwclawfirm.com -- Carter Wolden Curtis, LLP, Mark Pifko -- mpifko@baronbudd.com -- Baron & Budd, P.C., pro hac vice & Roland Karim Tellis -- rtellis@baronbudd.com -- Baron Budd PC, pro hac vice. Polaris Industries, Inc. & Polaris Sales Inc., Defendants, represented by Andrew Baker Bloomer, Kirkland & Ellis LLP, pro hac vice, Paul David Collier, Kirkland & Ellis LLP, pro hac vice, Peter Magnuson, Faegre Baker Daniels LLP, R. Allan Pixton , Kirkland & Ellis LLP, pro hac vice, Richard C. Godfrey, Kirkland & Ellis, pro hac vice & Wendy Jo Wildung, Faegre Baker Daniels LLP. PORSCHE FIN'L: Partial Summ. Judgment Bid in Cox Granted in Part ---------------------------------------------------------------- In the case STEVEN MICHAEL COX, individually and on behalf of those similarly situated, Plaintiff, v. PORSCHE FINANCIAL SERVICES, INC., Defendant, Case No. 16-23409-CIV-GAYLES/LOUIS (S.D. Fla.), Judge Darrin P. Gayles of the U.S. District Court for the Southern District of Florida granted in part and denied in part the parties' cross-motions for partial summary judgment. The action stems from a 2015 lease transaction that Plaintiff Cox completed with a non-party dealer, Porsche of Fort Myers. The Dealer agreed to give the Plaintiff $25,000 for his 2015 Hyundai Genesis and then agreed to apply that trade-in value to his lease transaction for a 2015 Porsche Cayman. The Plaintiff took the deal and executed with the Dealer a single-payment lease for $36,539.30 due at lease signing. He paid with a check for $11,539.30 and with the $25,000 credit for his trade-in. The Plaintiff's lease agreement included a section titled "Trade-in Vehicle," which is used to show that a vehicle is being traded in as part of a lease agreement. The Dealer listed the Plaintiff's 2015 Hyundai Genesis under "Trade-in Vehicle" on his lease form. The Plaintiff's lease agreement also included a section titled "Net Trade-In Allowance" ("NTIA"), which represents the gross agreed-upon value of a trade-in less the balance owed on the trade-in. The Dealer assigned the Plaintiff's trade-in a gross value of $25,000. The Plaintiff owed no balance on the trade. However, under the NTIA section of the Plaintiff's lease, the Dealer stated "N/A" to mean "not applicable." Among other things, the NTIA is used to determine the "Capitalized Cost Reduction" ("CCR"), which represents the amount of any Net Trade-in Allowance, rebate, noncash credit, or cash you pay that reduces the Gross Capitalized Cost. The Dealers may apply a CCR to a lease to reduce the "Adjusted Capitalized Cost," which may reduce other lease terms, such as the interest ("rent charge") and taxes paid on the lease. Under the CCR section of the Plaintiff's lease, the Dealer again stated "N/A." When the Plaintiff noticed that his lease form indicated "N/A" under the NTIA section, he asked the Dealer where the credit for his trade-in was. The Dealer pointed to the section showing his total due at signing: $36,539.30. Satisfied, the Plaintiff signed the lease form and left the dealership with his 2015 Porsche Cayman and no money owed to the Dealer. Weeks later, the Plaintiff reviewed the lease with his neighbor, a former car dealer, who told him that his rent charge was "extremely high." After later consulting an attorney, the Plaintiff came to believe that the Dealer overcharged him $3,970.93 in interest and sales tax by failing to apply his trade-in as a CCR. Defendant Porsche Financial generates and provides to the Dealer lease agreement forms that Defendant guarantees comply with Federal law and the law of the state where the Dealer is located, if completed accurately. The Defendant also reviews every lease that the Dealer executes through a two-step process: (1) credit underwriting and (2) contract processing. Relevant in the case, the Defendant provided to the Dealer the lease agreement that the Plaintiff completed, approved his credit application, reviewed his executed lease agreement for compliance with the Truth-in-Lending Act, and currently services the Plaintiff's lease. On Aug. 8, 2016, the Plaintiff filed the class action under both federal question and diversity jurisdiction against the Defendants (1) Porsche Cars North America, Inc., (2) Porsche Leasing Ltd., and (3) Porsche Financial Services, Inc., alleging nine counts: (1) Consumer Leasing Act ("CLA") and Regulation M violations, (2) per se violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") based on CLA and Regulation M violations, (3) FDUTPA violation based on the Dealer's failure to disclose how the NTIA was applied, (4) FDUTPA violation based on the Dealer's failure to apply the NTIA to reduce the CCR, (5) breach of contract, (6) breach of covenant of good faith and fair dealing, (7) negligent training and supervision (only against Defendant Porsche Cars North America, Inc.), (8) unjust enrichment, and (9) negligence. In his Complaint, the Plaintiff sought damages and declaratory and injunctive relief enjoining Defendants from continuing to violate federal and Florida law relative to the unlawful treatment of a consumer's NTIA and the imposition and collection of sales taxes. On Nov. 28, 2017, all the Defendants jointly filed their Motion for Summary Judgment. On Oct. 19, 2018, the Court affirmed and adopted Judge Louis' Report and Recommendation granting in part and denying in part the Defendants' Joint Motion, leaving only Counts 1-4 against remaining Defendant, Porsche Financial Services, Inc. On Aug. 1, 2019, the Defendant filed a Motion for Partial Summary Judgment on two issues: (1) whether Florida law permits private parties to pursue civil penalties under FDUTPA and (2) whether the Court has subject matter jurisdiction to hear the Plaintiff's claims. On Aug. 30, 2019, the Plaintiff filed his Amended Motion for Partial Summary Judgment, arguing that summary judgment is warranted in his favor as to (1) all elements of his FDUTPA claim under Count 49, (2) the Defendant's affirmative defense under Florida Statute Section 213.756, and (3) the Defendant's affirmative defense under the voluntary payment doctrine. As for the Defendant's Motion for Partial Summary Judgment, the Defendant argues that the Court lacks jurisdiction because the Plaintiff failed to exhaust his administrative remedies under Florida Statute Section215.26(4). Judge Gayles finds that the Florida Statute Section 215.26(4) is inapplicable because the Plaintiff does not seek a tax refund; he seeks, among other things, actual damages that include alleged overcharges for interest and fees on his lease. The Defendant cites no, and the Court is unaware of, authority stating that a plaintiff who is not seeking a tax refund must exhaust administrative remedies under Section 215.26(4). Even so, that a dealer may issue an assignment of rights to his/her customer in lieu of a refund, does not demand the Plaintiff to have sought such assignment before bringing suit. Accordingly, the Court has jurisdiction. Judge Gayles then finds that summary judgment is warranted with respect to the Defendant's argument that the Plaintiff is unable to pursue civil penalties, in addition to damages, under FDUTPA. Florida Statute Section 501.2075 provides that that civil penalties under FDUTPA may be recovered in any action brought under this part by the enforcing authority. The statute defines an enforcing authority as the office of the state attorney if a violation of this part occurs in or affects the judicial circuit under the office's jurisdiction or the Department of Legal Affairs if the violation occurs in or affects more than one judicial circuit or if the office of the state attorney defers to the department in writing or fails to act upon a violation within 90 days after a written complaint has been filed with the state attorney. As the Plaintiff is not an enforcing authority under the statute, the Judge grants summary judgment in favor of the Defendant as to the Plaintiff's claim for civil penalties pursuant to FDUTPA. As for the Plaintiff's Motion for Partial Summary Judgment, the Plaintiff argues that Defendant committed two traditional FDUTPA violations by (1) using a lease calculation that violates Florida tax law12 and (2) reviewing, accepting, and approving such an unlawful calculation. Judge Gayles holds that summary judgment is unwarranted as to both bases. First, whether conduct constitutes an unfair trade practice is a question of fact for the jury to decide. Because genuine issues of material fact remain as to whether the Defendant "directly participated" in the Plaintiff's lease calculation,the Judge denies the Plaintiff summary judgment as to this claim. Second, whether conduct constitutes an unfair trade practice is a question of fact for the jury to decide. Accordingly, Judge Gayles denies summary judgment as to the Plaintiff's FDUTPA claim. Judge Gayles grants the Plaintiff summary judgment with respect to the Defendant's affirmative defense based on Florida Statute Section 213.756. The Plaintiff correctly submits that the statute is inapplicable where, as is the case, the action is not against a retailer, dealer, or vendor, and the Plaintiff does not seek a tax refund. Summary judgment is warranted in the Plaintiff's favor as to this defense. However, the Court denies the Plaintiff summary judgment as to the Defendant's voluntary payment doctrine defense. Under the common law voluntary payment doctrine, money voluntarily paid under a claim of right, with full knowledge of the material facts, cannot be recovered merely because the paying party, at the time of the payment, mistook the law as to his liability to pay. The party asserting the defense must show that the person who made the payment had full knowledge of the relevant facts, including allegedly wrongful conduct. As the Plaintiff has provided no evidence that the circumstances have changed since the Court affirmed Judge Louis' Report, which found that there is a genuine dispute whether the Plaintiff entered into the lease deal with knowledge of the factual circumstances, Judge Gayles denies the Plaintiff's request for summary judgment as to the voluntary payment doctrine. Based on the foregoing, Judge Gayles granted the Defendant's Motion for Partial Summary Judgment as to civil penalties being unavailable to the Plaintiff under FDUTPA, and denied as to its argument that the Court lacks subject matter jurisdiction to hear the Plaintiff's claims. He granted the Plaintiff's Motion for Partial Summary Judgment as to the Defendant's affirmative defense under Florida Statute Section 213.756, and denied as to both (1) his FDUTPA claim and as to (2) the Defendant's additional affirmative defense under the voluntary payment doctrine. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/PtT6b2 from Leagle.com. Steven Michael Cox, individually and on behalf of those similarly situated, Plaintiff, represented by Adam W. Pittman -- apittman@corywatson.com -- Cory Watson, PC, pro hac vice, Hirlye R. Lutz, III -- rultz@corywatson.com -- Cory Watson PC, pro hac vice, Ronald Peter Weil -- RWeil@weilquaranta.net -- Ronald Weil PA, Frank Jerome Tapley -- jtapley@corywatson.com -- Cory Watson, P.C., Marguerite Clare Racher Snyder, Weil Quaranta P.A. & Mark A. Schweikert -- mschweikert@shb.com -- Schweikert Law PLLC. Porsche Financial Services, Inc., Porsche Leasing Ltd. & Porsche Cars North America, Inc., Defendants, represented by Jacqueline Stechsculte Miller, Nelson Mullins Broad and Cassel, Stacey M. Mohr, Sutherland Asbill & Brennan, LLP, pro hac vice, Tara Suzanne Pellegrino, Vision Precision Holdings, LLC, Thomas M. Byrne -- tombyrne@eversheds-sutherland.com -- Sutherland Asbill & Brennan, pro hac vice, Valerie S. Sanders -- valeriesanders@eversheds-sutherland.com -- Sutherland Asbill & Brennan, LLP, pro hac vice & Steven Ellison -- steven.ellison@nelsonmullins.com -- Nelson Mullins Broad and Cassel. PAG DAVIE P1, LLC, Respondent, represented by Glen Reid Goldsmith -- ggoldsmith@goldsmithpa.com -- Goldsmith & Atlas, P.A. PPDAI GROUP: Court Narrows Claims in Securities Suit ---------------------------------------------------- In the case, IN RE PPDAI GROUP SECURITIES LITIGATION, Plaintiff, v. XXX, Defendant, Case 654482/2018 (N.Y. Sup.), Judge Saliann Scarpulla of the New York County Supreme Court granted in part and denied in part the Defendants' motion to dismiss the consolidated amended complaint. PPDAI is an online consumer finance marketplace with primary operations in the People's Republic of China ("PRC") that connects borrowers and investors whose needs have not been met by traditional financial institutions. In its Nov. 13, 2017 prospectus, PPDAI stated that, through its full-service peer-to-peer ("P2P") lending platform, it generates revenue primarily from fees charged to borrowers for its services in matching them with investors and for other services it provides over the loan lifecycle. The company also generates revenue from loan facilitation service fees, post-facilitation service fees, collection fees and management fees. PPDAI sold shares to the public in an initial public offering ("IPO") in November 2017. The offering materials included the Prospectus and Forms F-1 and F-5 registration statements. The SEC declared the Registration Statement effective on Nov. 9, 2017. Then, on Nov. 13, 2017, the Defendants priced the American Depositary Shares ("ADS") at $13 per share and filed the final Prospectus for the IPO. Law Debenture served as PPDAI's agent for the service of process in the United States and the IPO underwriters were Credit Suisse, Citigroup and KBW. The Plaintiffs allege that the IPO generated $221 million in proceeds before underwriting discounts and commissions (totaling $15.4 million). The Plaintiffs allege that by the Offering Materials' effective date, the PRC had increased its scrutiny and regulation of the P2P lending industry and that PPDAI engaged in the type of lending and collection misconduct, such as usurious loan rates and abusive collection practices, that was the subject of the PRC's scrutiny. They allege that the Defendants disclosed only the amount, terms and delinquency status of PPDAI's loans with rates between 24% and 36%, but did not, similar information concerning PPDAI's exposure to loans with rates higher than 36%. The Plaintiffs claim that this information was important because, under PRC law, the portion of any interest rate above 36% is unenforceable, and PPDAI was substantially facilitating such loans. Less than a month following the IPO, analysts reported that PPDAI's average all-in rate of interest grossly exceeded 36%. Credit Suisse, in a Dec. 6, 2017 report on the P2P lending industry, estimated that the blended annualized cost PPDAI charged is around 60%. In December 2017, after the PRC promulgated regulations prohibiting all-in rates above 36% and the Credit Suisse analyst report, PPDAI's trading price declined considerably. Under the PRC's Guidelines on Promoting the Healthy Development of Online Finance Industry and the Interim Measures on Administration of Business Activities of Online Lending Information Intermediaries, PPDAI and other P2P lending platforms were prohibited from offering credit enhancement services. In the Offering Materials, PPDAI represented that it had previously engaged in practices with institutional investors that could be classified as the prohibited credit enhancement services. The Offering Materials noted that PPDAI. The Plaintiffs allege that, contrary to the aforementioned assurances, PPDAI engaged in prohibited credit enhancement practices exposing PPDAI to fines and regulatory repercussions and jeopardizing PPDAI's ability to do business. A July 18, 2018 UBS analyst report noted that the continued engagement in credit enhancement practices by PPDAI and other P2Ps created downside risks to their margins. Over the two-day period after the 2018 UBS Report, PPDAI's trading price declined. In the CAC, Plaintiffs allege that the Defendants failed to disclose that PPDAI was engaged in improper and illegal predatory lending and collection practices. The CAC alleges the statement regarding collection methods was misleading because, at the time of the Offering Materials, PPDAI was engaging in improper collection methods and had received complaints about its actions prior to the IPO. After news reports revealed that the PRC sought to tighten regulation of the P2P industry due to misconduct, PPDAI's ADS price declined. Finally, the Plaintiffs allege that, although the Offering Materials described exponential growth in its loan origination volume, PPDAI was then facing circumstances that prevented it from maintaining its loan origination volume and could reasonably foresee a reversal of its trend of increasing loan originations. They allege that because the Offering Materials "heavily promoted" a trend of increasing loan origination volume at the time of the IPO, the Defendants were required to disclose that PPDAI's practice of imposing excessive borrowing costs could quickly reverse the trend if regulators prohibited all-in rates in excess of 36%. The CAC states that PPDAI had an affirmative obligation to disclose facts in the Offering Materials required by Item 303 of Regulation S-K, including information regarding known trends, uncertainties or events. The Plaintiffs allege that PPDAI failed to disclose uncertainties and risks that were known to it at the time of the Offering Materials including those (1) associated with its practice of imposing total annualized borrowing costs in excess of 36% of the loan amount; and (2) "associated with its predatory, unethical and illegal loan origination and collection practices. On Sept. 10, 2018, Huang filed a complaint alleging violations the '33 Act in connection with the alleged materially misleading statements and omissions in PPDAI's IPO Offering Materials. Vora filed a similar complaint on Sept. 27, 2018 and the actions were subsequently consolidated. On Dec. 17, 2018, the Plaintiffs filed the CAC, asserting three causes of action for violations of Sections 11, 12(a)(2) and 15 of the '33 Act. The Defendants now move to dismiss the CAC on the grounds of documentary evidence, lack of standing and failure to state a claim. Judge Scarpulla denied the motion by Defendants PPDAI Group, Inc., Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Keefe, Bruyette & Woods, Law Debenture Corporate Services Inc., and Giselle Manon to dismiss the Plaintiffs' second cause of action based on standing. She otherwise denied the motion by Defendants PPDAI Group, Inc., Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc., Keefe, Bruyette & Woods, Law Debenture Corporate Services Inc., and Giselle Manon to dismiss the Plaintiffs' first, second and third causes of action with respect to the allegations concerning loan interest rates in excess of 36% and otherwise granted. Among other things, the Judge finds that contrary to the Defendants' assertion, for Section 12(a)(2) standing, it is sufficient to allege that the Plaintiffs purchased ADSs in connection with the IPO, and the Plaintiffs need not identify the specific defendant from whom they purchased the ADSs. Thus, the Plaintiffs statement in the CAC that they purchased shares "in connection with the IPO and pursuant and/or traceable to the Offering Materials is sufficient for standing purposes. She declines to dismiss the Section 12(a)(2) claims based on standing. The cases cited by the Defendants do not require a different result. In addition, she finds that the alleged misrepresentations concerning interest rates in excess of 36% support a claim under Section 11 and Section 12(a)(2). The Plaintiffs' allegation that, absent information on the total extent or magnitude of PPDAI's exposure to loans above interest rates of 36%, investors could not adequately assess the ADS's actual value or the risks of purchasing them, is sufficient, at this stage of the litigation, to state a claim under sections 11 and 12(a)(2). The counsel for the parties are directed to appear for a status conference on March 18, 2020 at 2:15 p.m. The ruling constitutes the decision and order of the Court. A full-text copy of the Court's Feb. 26, 2020 Order is available at https://is.gd/pAEtZd from Leagle.com. Robbins Geller Rudman & Dowd LLP, Melville, NY (Samuel H. Rudman -- srudman@rgrdlaw.com -- Joseph Russello, Robert D. Gerson) and Scott & Scott, New York City (Max Schwartz, Randy Moonan) for plaintiffs Yizhong Huang and Ravindra Vora. Skadden, Arps, Slate, Meagher & Flom LLP, New York City (Scott D. Musoff -- scott.musoff@skadden.com -- Robert A. Fumerton, Michael C. Griffin) for defendants PPDAI Group Inc., Law Debenture and Giselle Manon. Shearman & Sterling LLP, New York City (Adam S. Hakki -- ahakki@shearman.com -- Daniel Lewis , Daniel Kahn ) for defendants Credit Suisse Securities (USA) LLC, Citigroup Global Markets Inc. and Keefe, Bruyette & Woods, Inc. PRET A MANGER: Bid to Dismiss Cunningham Suit Over Fraud Denied --------------------------------------------------------------- In the case, SKYLAR CUNNINGHAM, individually on behalf of herself and all others similarly situated, Plaintiff, v. PRET A MANGER (USA) LTD., Defendant, Case No. 19-cv-02322 (CM) (S.D. N.Y.), Judge Colleen McMahon of the U.S. District Court for the Southern District of New York denied Pret's motion to dismiss or to alternatively stay the Second Amended Complaint, filed Sept. 12, 2019, pending the completion of jurisdictional discovery. Plaintiff Cunningham commenced the action against Defendant Pret for deceptively marketing and labeling its products as "natural" when many of them contain soya, a genetically modified organism ("GMO"), and other synthetic ingredients. The Plaintiff filed the action on March 15, 2019. The Plaintiff brings the action for violations of New York General Business Law Sections 349 and 350, the consumer protection statutes of all 50 states, and Magnuson-Moss Warranty Act, breach of express warranty, implied warranty of merchantability, implied warranty of fitness for a particular purpose, and unjust enrichment. The Plaintiff is a citizen of New York State. She notes that many Class Members reside in the Southern District of New York, and throughout the State of New York. The Plaintiff filed an Amended Complaint ("FAC") on April 17, 2019. On July 8, 2019, the Defendant moved to dismiss the FAC. In lieu of a response, the Plaintiff filed the SAC on Aug. 12, 2019. The SAC seeks various monetary and punitive damages, injunctive relief, and specifically requests that Pret (1) cease advertising or stating the Products as Natural; and (2) inform consumers that the Products contain GMOs and other synthetic ingredients in advertising for the Products. Within the SAC, the Plaintiff requests certification of a New York subclass. Pret moved to dismiss or to alternatively stay the SAC on Sept. 12, 2019, for lack of subject matter jurisdiction and failure to state a claim. In the alternative, it has asked the Court to stay the case until the FDA releases its findings on the "natural" label on food. Pret urges that there are a number of deficiencies in the Plaintiff's SAC: (1) Pret argues that the Plaintiff has failed to meet Article III's standing requirements because she has not alleged an adequate injury; (2)the Plaintiff cannot establish class standing; (3) the Plaintiff cannot establish standing to sue for injunctive relief; (4) the Plaintiff cannot establish jurisdiction under the Class Action Fairness Act ("CAFA"); and (5) the Plaintiff has failed to establish jurisdiction under the MMWA. Judge McMahon deemed that the Plaintiff has met CAFA's threshold jurisdictional requirements. However, because it is unclear whether the Court has subject matter jurisdiction under CAFA's jurisdictional carve outs, Judge McMahon ordered the parties to engage in limited jurisdictional discovery for the purpose of determining whether two-thirds or more of the putative class members are New York citizens before the U.S. Magistrate Judge Stewart D. Aaron. Any discovery disputes should be directed to the Magistrate Judge Aaron. The deadline for completion was March 6, 2020. In the interim, Judge McMahon denied Pret's motion to dismiss pending the completion of jurisdictional discovery. A full-text copy of the Court's Jan. 10, 2020 Memorandum & Order is available at https://is.gd/D1T4zq from Leagle.com. Skylar Cunningham, individually on behalf of herself and all others similarly situated, Plaintiff, represented by George Volney Granade -- ggranade@reesellp.com -- Reese LLP, Michael Robert Reese -- mreese@reesellp.com -- Reese Richman, LLP, Janine Lee Pollack -- pollackj@theslutzerlawgroup.com -- The Sultzer Law Group, P.C., Jeremy Bradford Francis -- francisj@thesultzerlawgroup.com -- The Sultzer Law Group & Jason P. Sultzer -- sultzerj@thesultzerlawgroup.com -- The Sultzer Law Group. Pret A Manger (USA) Limited, Defendant, represented by Randa Adra -- radra@crowell.com -- Crowell & Moring LLP & Sarah Gilbert -- sgilbert@crowell.com -- Crowell & Moring LLP. PSC INC: $1.52MM Settlement in Miller Suit Gets Final Approval -------------------------------------------------------------- In the case, KIMBERLY MILLER, BRIANA HOUSER, and DEAN BUCHHOLZ, on behalf of themselves and on behalf of others similarly situated, Plaintiffs, v. P.S.C., INC., d/b/a PUGET SOUND COLLECTIONS, and DOES ONE THROUGH TEN, Defendants, Case No. 3:17-cv-05864-RBL (W.D. Wash.), Judge Ronald B. Leighton of the U.S. District Court for the Western District of Washington granted (i) the Plaintiffs' Motion for Final Approval of Class Action Settlement, and (ii) the Class Counsel's Motion for an Award of Fees, Costs, and Class Representative Statutory and Service Awards. On Sept. 10, 2019, the Court preliminarily approved the Agreement and directed that notice be given to the Class. Pursuant to the notice requirements set forth in the Agreement and Preliminary Approval Order, the Class Members were notified of the terms of the proposed Agreement, of their right to opt out, and of their right to object and be heard at a Final Approval Hearing to determine whether the terms and conditions of the Agreement are fair, reasonable, and adequate for the release of the claims contemplated by the Agreement; and whether judgment should be entered dismissing this action with prejudice. The Court has reviewed and considered all papers filed in support of and in opposition to the settlement, and all exhibits thereto, and held a hearing after notice was sent to the Class in order to confirm that the settlement is fair, reasonable, and adequate, and to determine whether the Final Approval Order should be entered in the action pursuant to the terms and conditions set forth in the Agreement on Jan. 10, 2020 at support of and in opposition to the settlement. Pursuant to the terms of the Agreement, the Court modified the class definition in its Preliminary Approval Order to include all persons against whom Defendant obtained a judgment by filing one of the challenged forms within the four-year statute of limitations under the Consumer Protection Act, as follows: All persons who returned to Defendant a signed Stipulation Re Balance Owed and For Judgment or Stipulated Judgment, or substantially similar debt collection form, at any time since Septe. 18, 2013, and any person against whom Defendant obtained a judgment by filing a Stipulation Re Balance Owed and For Judgment and Stipulated Judgment, at any time since Sept. 18, 2013. In its Preliminary Approval Order, the Court also found that the FDCPA Sub-Class satisfies numerosity and certified the following Sub-Class: All persons in the Class whose alleged debt was incurred primarily for personal, family, or household purposes and from whom P.S.C. collected or attempted to collect a debt using a Stipulation Re Balance Owed and For Judgment or Stipulated Judgment, or substantially similar debt collection form, at any time since Sept. 18, 2016. After considering the motions and the declarations and exhibits submitted with the motions, Judge Leighton entered the Final Approval Order and Judgment, which constitutes a final adjudication on the merits of all claims of the Class and Sub-Class. The Court reaffirmed the appointment of Kimberly Miller, Briana Houser, and Dean Bucholz as Class Representatives, and the Terrell Marshall Law Group and the Law Office of Joshua L. Turnham PLLC, as Class Counsel. The settlement requires P.S.C. to establish a Settlement Fund in the amount of $1.52 million to be comprised of (a) $275,000 in write-offs of the balances owed on Class Member Accounts; and (b) $1.245 million in cash that the parties propose to use to make payments to all the Class Members with a deliverable address who did not timely exclude themselves from the settlement; pay the settlement administrator the costs of notice and settlement administration expenses in an amount capped at $18,000; pay statutory damages and service awards in the amount of $5,000 to each Class Representative; and pay the Class Counsel's attorneys' fees and expenses in the amount of $380,000. The Settlement Fund is non-reversionary and any amounts remaining in the Settlement Fund after the deadline to cash checks has expired will be disbursed to the Legal Foundation of Washington and the Northwest Consumer Law Center, two non-profit organizations dedicated to protecting Washington consumers, including victims of unfair debt collection practices. P.S.C. is ordered to comply with the non-monetary relief required by the Settlement. It will no longer use collection-related forms that purport to permit entry of judgment without first serving a summons and complaint or file the Stipulated Judgment forms in any court in Washington. P.S.C. shall, within 10 days of the Effective Date of the settlement, cease all efforts to apply for writs of garnishment in any Pierce County Superior Court case where it obtained a judgment against any Class Member Judgment Account without having served the Class Member with a summons and complaint. And P.S.C. shall, within 90 days of the Effective Date of he settlement, file partial or full satisfactions of judgment reflecting the write-off allocations required under the Agreement. Finally, it shall, within 30 days of the Effective Date of the settlement, request the deletion of any tradeline it has been reporting to any consumer reporting agency regarding any Class Member account. The Court finally approved the Agreement, including the plans for implementation and distribution of the Settlement Fund. The Court dismissed with prejudice the action, the Released Claims, and the Released Parties, and adjudged that the Released Claims are released against the Released Parties. Within the time period set forth in section III.2 of the Agreement, the Settlement Payments will be issued to each Settlement Class Member under the terms of the Agreement. The Court approved the payment of attorneys' fees and costs in the amount of $380,000. The amount will be taken out of the Settlement Fund that is paid by P.S.C. pursuant to the terms of the Agreement. The Class Counsel's application for statutory damages and service awards for Class Representatives Kimberly Miller, Briana Houser, and Dean Buchholz in the amount of $5,000 each is granted. A full-text copy of the Court's Jan. 10, 2020 Order is available at https://is.gd/14OSqy from Leagle.com. Kimberly Miller, Briana Houser & Dean Buchholz, on behalf of themselves and on behalf of others similarly situated, Plaintiffs, represented by Beth E. Terrell -- bterrell@tmdwlaw.com -- TERRELL MARSHALL LAW GROUP PLLC, Blythe H. Chandler -- bchandler@terrellmarshall.com -- TERRELL MARSHALL LAW GROUP PLLC & Joshua L. Turnham -- joshua@turnhamlaw.com -- THE LAW OFFICE OF JOSHUA L TURNHAM PLLC. P.S.C., Inc., doing business as Puget Sound Collections, Defendant, represented by Robert E. Sabido -- rsabido@cosgravelaw.com -- COSGRAVE VERGEER KESTER & Timothy J. Fransen -- tfransen@cosgravelaw.com -- COSGRAVE VERGEER KESTER. PTAG INC: Cotton Labor Suit Seeks Unpaid Overtime Wages ------------------------------------------------------- Rita Cotton, individually and on behalf of all others similarly situated, Plaintiff, v. PTAG, Inc., Defendant, Case No. 20-cv-00163 (W.D. Pa., February 3, 2020), seeks to recover unpaid overtime and other damages pursuant to the Fair Labor Standards Act and the Pennsylvania Minimum Wage Act. PTAG provides engineering, consulting and automation services to pipeline companies, utilities and industrial customers where Cotton worked as a Document Control Lead from April 2017 until April 2018. She claims he was paid a salary regardless of the number of hours she worked that day without any overtime pay for hours worked in excess of forty hours in a workweek. [BN] Plaintiff is represented by: Michael A. Josephson, Esq. Andrew W. Dunlap, Esq. Taylor A. Jones, Esq. JOSEPHSON DUNLAP LAW FIRM 11 Greenway Plaza, Suite 3050 Houston, TX 77046 Tel: (713) 352-1100 Fax: (713) 352-3300 Email: mjosephson@mybackwages.com adunlap@mybackwages.com tjones@mybackwages.com - and - Richard J. Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Tel: (713) 877-8788 Fax: (713) 877-8065 Email: rburch@brucknerburch.com - and - Joshua P. Geist, Esq. GOODRICH & GEIST, P.C. 3634 California Ave. Pittsburgh, PA 15212 Tel: 412-766-1455 Fax: 412-766-0300 Email: josh@goodrichandgeist.com RIPPLE LABS: Court Narrows Claims in Zakinov Securities Suit ------------------------------------------------------------ In the case, VLADI ZAKINOV, et al., Plaintiffs, v. RIPPLE LABS, INC., et al., Defendants, Case No. 18-cv-06753-PJH (N.D. Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted in part and denied in part the Defendants' motion to dismiss Zakinov's consolidated class action complaint. The consolidated putative class action ("In re Ripple") arises out of the creation, dispersal, circulation, and sale of "XRP," a sort of digital units often referred to as a "cryptocurrency." In re Ripple comprises various actions alleging both violations of federal and California state securities laws. Such actions include Coffey v. Ripple et al., 18-3286, Greenwald v. Ripple et al., 18-4790, Zakinov v. Ripple et al., 18-CIV-2845 (Cal. Super. Ct. San Mateo Cty.), and Oconer v. Ripple Labs, Inc., 18-CIV-3332 (Cal. Super. Ct. San Mateo Cty.). On Aug. 5, 2019, the Plaintiff filed the operative consolidated complaint against the Defendants. In it, he alleges the following claims: (i) Violation of Section 12(a)(1) of the Securities Act against the Defendants for the unregistered offer and sale of securities; (ii) Violation of Section 15 of the Securities Act against Defendant Ripple and Defendant Garlinghouse for control person liability for the primary violation of Title 15 U.S.C. Section 77l(a)(1)(together with U.S.C. Section 77l(a)(1), the federal securities claims); (iii) Violation of California Corporations Code Section 25503 against the Defendants for a primary violation of Section 25110's restriction on the offer or sale of unregistered securities; (iv) Violation of California Corporations Code Section 25504 against Defendant Ripple and Defendant Garlinghouse for control person liability in connection with the Defendants' primary violation of Section 25110; (v) Violation of California Corporations Code Section 25501 against Defendant Ripple and Defendant XRP II, as well as a parallel material assistance claim under Section 25504.1 against Defendant Ripple and Defendant Garlinghouse, for misleading statements in connection with the offer or sale of securities in violation of Section 25401; (vi) Violation of California Business & Professions Code Section 17500 against the Defendants for misleading advertisements concerning XR; and (viii) Violation of California Business & Professions Code Section 17200 against the Defendants for their unregistered offer or sale of securities in violation of federal and state law, false advertising practices, misleading statements, and offense to established public policy. The Defendants filed the instant motion to dismiss for failure to state a claim under Rule 12(b)(6). At the core of the Plaintiff's claims is that XRP qualifies as a security under California state and federal law. While the Plaintiff alleges the legal theory at length in his complaint, the Defendants save their dispute with that theory for another day and assume -- solely for the instant motion -- the Plaintiff's legal position that XRP qualifies as a security. Instead, the Defendants challenge the complaint on grounds of Title 15 U.S.C. Section 77m's three-year statute of repose and traditional Rule 12(b)(6) failure to state a claim grounds. Judge Hamilton granted in part and denied in part the Defendants' motion to dismiss. The motion to dismiss the first and second causes of action for violation of Title 15 U.S.C. Section 77l(a)(1) and Section 77o is denied. The motion to dismiss the third and fifth causes of action for violation of California Corporations Code Section 25503, Section 25504, and Section 25110 is denied. The motion to dismiss the fourth cause of action for violation of California Corporations Code Section 25501, Section 25504.1, and Section 25401 is granted with leave to amend. The motion to dismiss the sixth and seventh causes of action for violations of California Business and Professions Code Section 17200 and Section 17500 is granted with prejudice, except as narrowly provided immediately in the Order. Among other things, the Judge finds that the Plaintiff has failed to allege a predicate violation of Section 25401. Absent such showing, he cannot allege joint and several liabilities under Section 25504.1 against Defendant Ripple or defendant Garlinghouse. He also finds that the Plaintiff does not dispute that Rule 9(b)'s heightened pleading standard generally applies to Section 17200 and Section 17500 claims in federal court. In his three-paragraph opposition to the Defendants' challenge that his Section 17200 and Section 17500 claims fail Rule 9(b), the Plaintiff relies solely upon the same seven categories of purported misstatements that he identified in support of his misrepresentation claims under California Corporations Code Section 25401 and Section 25504. As decided, such alleged misstatements fail Rule 9(b)'s heightened pleading requirements. As a result, the Plaintiff's Section 17200 and Section 17500 claims similarly fail those requirements. The Judge allowed the Plaintiff 28 days from the date of the Order to file an amended consolidated complaint accounting for the deficiencies in the claims dismissed without prejudice. In it, the Plaintiff must specifically set forth any alleged misrepresentation used to support any amended claim. Failure to do so will result in dismissal of such claim with prejudice. The Plaintiff may not otherwise amend his complaint absent leave of court or consent of the Defendants. Upon the filing of any amended complaint, the Plaintiff must also file a redline clearly demarcating its changes from the existing complaint. A full-text copy of the Court's Feb. 26, 2020 Order is available at https://is.gd/Sd1P4o from Leagle.com. Vladi Zakinov, individually and on behalf of all others similarly situated, Plaintiff, represented by Brian J. Robbins -- brobbins@robbinsarroyo.com -- Robbins Arroyo LLP, Brian Edward Cochran -- bcochran@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, David Conrad Walton -davew@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Eric M. Carrino -- ecarrino@robbinsarroyo.com -- Robbins Arroyo LLP, Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Stephen J. Oddo -soddo@robbinsarroyo.com -- Robbins Arroyo LLP. Ripple Labs, Inc., XRP II, LLC, Bradley Garlinghouse, Christian Larsen, Ron Will, Antoinette O'Gorman, Eric van Miltenburg, Susan Athey, Zoe Cruz, Ken Kurson, Ben Lawsky, Anja Manuel & Takashi Okita, Defendants, represented by Peter Bradley Morrison -- peter.morrison@skadden.comSkadden -- Arps Slate Meagher and Flom LLP, John M. Neukom -- john.neukom@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP & Virginia Faye Milstead -- virginia.milstead@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP. ROBINHOOD FINANCIAL: Court Dismisses Gordon Suit Without Prejudice ------------------------------------------------------------------ In the case, ISAAC GORDON, Plaintiff, v. ROBINHOOD FINANCIAL, LLC, a Delaware limited liability company, and ROBINHOOD MARKETS, INC., a Delaware corporation, Defendants, Case No. 2:19-CV-0390-TOR (E.D. Wash.), Judge Thomas O. Rice of the U.S. District Court for the Eastern District of Washington granted the Defendants' two Motions to Dismiss. The case concerns the "Refer a Friend" marketing feature of the Defendants' online investment brokerage application, which the Plaintiff alleges violates the Washington Consumer Protection Act by way of the Washington Commercial Electronic Mail Act ("CEMA"). The Plaintiff initially filed a Complaint against the Defendants in Spokane County Superior Court. The Defendants removed the action to federal court on the basis of class action diversity jurisdiction under the Class Action Fairness Act ("CAFA"). Following removal, the Plaintiff filed an Amended Complaint, which is the current operative Complaint. The Defendants then filed a Motion to Dismiss for lack of personal jurisdiction over Defendant Robinhood Markets. They also filed a Motion to Dismiss for failure to adequately allege a CEMA violation. The Defendants filed a Motion to Dismiss for lack of personal jurisdiction over Defendant Robinhood Markets, pursuant to Fed. R. Civ. P. 12(b)(2). The Plaintiff then voluntarily dismissed Defendant Robinhood Markets, pursuant to Fed. R. Civ. P. 41(a)(1). Robinhood Markets contends it is entitled to attorney's fees for prevailing on its Rule 12(b)(2) motion. Washington law authorizes an award of attorney's fees to a defendant who is "personally served outside the state" and "prevails in the action." RCW 4.28.185. "Under this statute, courts are allowed to award attorney's fees to defendants who -- after being hailed into court under the long-arm statute -- prevail on a 12(b)(2) motion to dismiss. The statute authorizes an award of fees to a foreign defendant when the plaintiff voluntarily dismisses the action. Robinhood Markets is a foreign Defendant who was voluntarily dismissed without prejudice from the action. Accordingly, under RCW 4.28.185, Robinhood Markets is entitled to an award of attorney's fees. The Defendants move to dismiss the Plaintiff's Complaint for failure to adequately allege a CEMA violation. However, review of the parties' briefing on the issue has triggered the Court's obligation to consider whether federal subject-matter jurisdiction is present. In any class action, the claims of the individual class members will be aggregated to determine whether the matter in controversy exceeds the sum or value of $5 million, exclusive of interest and costs. In the factual allegations of the Amended Complaint, the Plaintiff alleges the Defendants' text messages were only actually sent to "hundreds of Washington recipients." Assuming he correctly asserts that each class member would be entitled to $1,500 in damages, which could then be trebled to $4,500 per class member, the Plaintiff would still need to allege a class of over 1,100 members in order to satisfy the class aggregate amount-in-controversy requirement. The Plaintiff's vague allegation that the text messages at issue were only sent to "hundreds" of Washington residents fails to meet this threshold. Because the Plaintiff's Amended Complaint fails to allege a sufficient amount-in-controversy to support federal diversity jurisdiction, Judge Rice must dismiss the action. The Plaintiff may have leave to file a Second Amended Complaint within 30 days of the Order. In light of the foregoing, Judge Rice granted the Defendants' Motion to Dismiss Defendant Robinhood Markets, Inc. Defendant Robinhood Markets is entitled to an award of attorney's fees. Within 14-days, Robinhood Markets will file its request and substantiation for attorney fees. The Judge also granted the Defendants' Motion to Dismiss for Failure to State a Claim. The case is dismissed without prejudice and with leave to amend. The District Court Executive is directed to enter the Order, furnish copies to the counsel, and terminate Robinhood Markets as a Defendant in the matter. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/oD2Ch0 from Leagle.com. Isaac Gordon, an individual, and all those similarly situated, Plaintiff, represented by Brian Cameron -- bcameron@cameronsutherland.com -- Cameron Sutherland PLLC, Kirk D. Miller -- kmiller@millerlawspokane.com -- Kirk D. Miller PS & Shayne Sutherland -- ssutherland@cameronsutherland.com -- Cameron Sutherland PLLC. Robinhood Financial LLC, a Delaware limited liability company, Defendant, represented by Kenneth E. Payson -- kenpayson@dwt.com -- Davis Wright Tremaine LLP & Lauren Rainwater -- laurenrainwater@dwt.com -- Davis Wright Tremaine LLP. SAGINAW COUNTY, MI: Court Stays Fox Suit Pending Decision in Freed ------------------------------------------------------------------ Judge Thomas L. Ludington of the U.S. District Court for the Eastern District of Michigan, Northern Division, stayed the case, THOMAS A. FOX, et al., Plaintiffs, v. COUNTY OF SAGINAW, by its BOARD OF COMMISSIONERS, et al., Defendants, Case No. 1:19-cv-11887 (E.D. Mich.) pending the Sixth Circuit's decision in Freed v. Thomas, Case No. 18-2312 (6th Cir.). Plaintiff Fox was the owner of real property in Alma, Michigan in Gratiot County. As of 2017, the Property had accrued a Tax Delinquency of approximately $3,091.23. He claims that in February 2017, Defendant Thomas seized ownership of the Property on behalf of Gratiot County as its duly elected treasurer. He represents that on the date of seizure, the Property had a State Equalized Value of $25,200. The Plaintiff reasons that because the fair market value of a property is at least twice the amount of its State Equalized Value, it means that the government would have known or should have known that said property had a fair market value of at least $50,400. Accordingly, the Plaintiff claims that he had $47,308.77 in equity in the Property (the difference between the fair market value of $50,400 and the tax delinquency of $3,091.23). The Plaintiff contends that by retaining the funds, Defendants Thomas and Gratiot County "took or destroyed" his equity in the Property. The Plaintiff argues that Defendants are seizing property and maintaining the equity pursuant to Michigan's General Property Tax Act ("GPTA"). On June 25, 2019, Plaintiff Fox filed a complaint against multiple Michigan counties and county officials. The Plaintiff claims that the Defendants' process of foreclosure of property to satisfy unpaid real estate taxes is unconstitutional. Plaintiff alleges that Michigan law generally authorizes counties to foreclose on parcels in order to satisfy outstanding unpaid property taxes, but the Defendant Counties and their officials abuse the process. They do not foreclose on the parcel; sell it; keep the amount of the outstanding taxes plus reasonable fees; and return the rest to the property owner. Rather, they foreclose; sell the property at a reduced amount; and keep all of the proceeds and excess/surplus equity for themselves. As a result, property owners lose the entire value of their property, which is often orders of magnitude more than the outstanding tax bills. The complaint seeks to certify the case as a class action to include the Plaintiffs throughout Michigan who are similarly situated to Plaintiff Fox. The complaint lists the following counties and their treasurers as Defendants: Gratiot, Saginaw, Bay, Midland, Isabella, Tuscola, Montmorency, Alpena, Oscoda, Alcona, Arenac, Ogemaw, Clare, and Gladwin. The complaint presented five counts, specifically a taking under the Fifth and Fourteenth Amendments, Inverse Condemnation, a violation of the Michigan Constitution, and a violation of the Eighth Amendment. On Aug. 14, 2019, 25 of the Defendants filed a motion to dismiss the complaint. On Sept. 4, 2019, the Plaintiffs filed an amended complaint adding the following counties and their treasurers as Defendants: Crawford, Genesee, Huron, Jackson, Lapeer, Lenawee, Macomb, Otsego, Presque Isle, Roscommon, Sanilac, St Clair, and Washtenaw. The amended complaint presented three additional counts, specifically violations of procedural and substantive due process and unjust enrichment. Forty-seven of the Defendants have now filed motions to dismiss the amended complaint and motions for summary judgment. Among these Defendants are the twenty-five that previously filed a motion to dismiss the initial complaint. The parties were ordered to show cause why the case should not be stayed pending the Sixth Circuit's resolution of the case Freed v. Thomas, Case No. 18-2312 (6th Cir.). The parties responded to the order to show cause and acknowledged that there was sound reason to stay the case. Judge Ludington holds that the facts in Freed and the facts before the Michigan District Court are almost identical. The claims for relief under the Fifth, Eighth, and Fourteenth Amendments are the same. Most importantly, one of the major questions regarding whether the Court has jurisdiction considering Knick is also the same. Judge Ludington sees no reason to resolve the issue while it is pending before the Sixth Circuit. Among the Defendants listed in the Plaintiff's complaint are Alcona County and Cheryl Franks. Summons were issued for both the Defendants on July 1, 2019, but no certificate of service has been filed nor has an attorney filed an appearance on behalf of either of these Defendants. Accordingly, the Plaintiff was ordered to show cause why his claims against Alcona County and Cheryl Franks should not be dismissed for failure to prosecute. The Plaintiff filed a motion to "reissue the summonses" for Alcona County and Cheryl Franks. The Plaintiff's motion will be granted. Accordingly, Judge Ludington granted the Plaintiff's motion to issue a second summons for Defendants Alcona County and Cheryl Franks. The Judge directed the Clerk of Court to issue a second summons for Defendants Alcona County and Cheryl Franks. The Judge denied as moot the motion to dismiss the initial complaint due to the Plaintiffs' amended complaint. The case is stayed pending the Sixth Circuit's decision in Freed. The parties will file a notice with the Court within 30 days of the Sixth Circuit issuing a mandate. A full-text copy of Judge Ludington's Jan. 10, 2020 Order is available at https://is.gd/AWakqj from Leagle.com. Thomas A Fox, and all those similarly situated, Plaintiff, represented by Christopher D. Kaye, Miller Law Firm, Daniel Luke Ravitz, Miller Law Firm, E. Powell Miller, The Miller Law Firm, Gregory A. Mitchell, Lawyers Group of Michigan, Matthew E. Gronda -- matthewgronda@gmail.com -- Matthew E. Gronda, J.D., P.L.C., Sharon S. Almonrode, The Miller Law Firm, P.C., William Kalas -- WK@miller.law -- The Miller Law Firm, P.C. & Philip L. Ellison -- pellison@olcplc.com -- Outside Legal Counsel PLC. County of Saginaw, by its Board of Commissioners, Timothy M Novak, in his official and individual capacities, Bay, County of, by its Board of Commissioners, Richard F Brzezinkski, in his individual capacity, Shawna S Walraven, in her official and individual capacities, Gratiot, County of, by its Board of Commissioners, Michelle Thomas, in her official and individual capacities, Midland, County of, by its Board of Commissioners, Cathy Lunsford, in her official and individual capacities, Isabella, County of, by its Board of Commissioners, Steven W Pickens, in his official and individual capacities, Tuscola, County of, Patricia Donovan-Gray, in her official and individual capacities, Montmorency, County of, by its Board of Commissioners, Jean M Klein, in her official and individual capacities, Alpena, County of, by its Board of Commissioners, Kimberly Ludlow, in her official and individual capacities, Oscoda, County of, by its Board of Commissioners, William Kendall, in his official and individual capacities, Arenac, County of, by its Board of Commissioners, Dennis Stawowy, in his official and individual capacities, Clare, County of, by its Board of Commissioners, Jenny Beemer-Fritzinger, in her official and individual capacities, Gladwin, County of, by its Board of Commissioners & Christy Van Tiem, in her official and individual capacities, Defendants, represented by Allan C. Vander Laan, Cummings, McClorey & Bradley C. Yanalunas, Cummings, McClorey, Davis & Acho, P.L.C. Ogemaw, County of, by its Board of Commissioners & Dwight McIntyre, in his official and individual capacities, Defendants, represented by Gregory M. Meihn -- gmeihn@foleymansfield.com -- Foley & Mansfield, PLLP, Matthew Wise -- mwise@foleymansfield.com -- Foley & Mansfield, PLLP & Melinda A. Balian -- mbalian@foleymansfield.com -- Foley & Mansfield. Crawford, County of, Kate M. Wagner, Joseph V. Wakeley, Presque Isle, County of & Bridget Lalonde, Defendants, represented by Charles A. Lawler, Clark Hill. Genesee, County of, Deborah Cherry, Huron, County of, Debra McCollum, Jackson, County of, Karen Coffman, Lapeer, County of, Dana M. Miller, Lenawee, County of, Marilyn J. Woods, Otsego, County of, Diann Axford, Roscommon, County of, Rebecca Ragan, Sanilac, County of, Trudy Nicol, St Clair, County of & Kelly Roberts-Burnett, Defendants, represented by Allan C. Vander Laan, Cummings, McClorey. Macomb, County of & Lawrence Rocca, Defendants, represented by Aaron C. Thomas, Macomb County Corporation Counsel, Frank J. Krycia, Macomb County Corporation Counsel & Peter C. Jensen, Macomb County Corporation Counsel. Washtenaw, County of & Catherine McClary, Defendants, represented by Kyle M. Asher, Dykema Gossett PLLC & Theodore W. Seitz, Dykema Gossett. SALT RIVER: Court Narrows Claims in Ellis Antitrust Suit -------------------------------------------------------- In the case, William Ellis, et al., Plaintiffs, v. Salt River Project Agricultural Improvement and Power District, Defendant, Case No. CV-19-01228-PHX-SMB (D. Ariz.), Judge Susan M. Brnovich of the U.S. District Court for the District of Arizona granted in part the District's Motion to Dismiss and Request for Judicial Notice. The case arises out of the District's adoption of a new rate structure for its sale of electricity, which includes additional fees and different rates for residential customers, like the Plaintiffs, who self-generate some of their electricity through solar energy systems. In 2014, the District proposed the new rate structure ("Standard Electric Price Plans" or "SEPPs"), which includes a new E-27 price plan required for self-generating solar customers, that its Board of Directors approved in 2015. The E-27 price plan applies to customers who began self-generating solar power after Dec. 8, 2014. The Plaintiffs' claims relate to their financial injuries caused by the SEPPs. The Plaintiffs are four District residential customers who live in Arizona and self-generate some of their electricity through personal solar energy systems. Three Plaintiffs installed their solar energy systems after the District adopted the SEPPs. Specifically, Ellis, Dill, and Rupprecht installed solar energy systems in May 2018, July 2018, and November 2016, respectively. Rupprecht bought his home equipped with a solar energy system at an unknown date. The District and the "Association" are two distinct entities comprising the Salt River Project Agricultural Improvement and Power District ("SRP"), a power-and-water utility company in central Phoenix, Arizona. Although the District is a political subdivision of Arizona, it (1) is not recognized by the State of Arizona or by any law as a regulator or regulatory authority in the retail electricity market; (2) cannot impose ad valorem property taxes or sales taxes or enact laws governing citizens' conduct; (3) cannot administer normal governmental functions such as the maintenance of streets, the operation of schools, or sanitation, health or welfare services; (4) is not exempt from a city's exercise of eminent domain, nor it is immune from tort liability; and (5) can only levy taxes against its landowners. Unlike other utility providers, the District's rates, rules, and regulations are exempt from the control of Arizona's public utility regulator, the Arizona Corporation Commission ("ACC"). The District provides electricity to around two million residential and commercial customers including the Plaintiffs in central Phoenix ("Market"). As the Plaintiffs allege, the District provides over 95% of retail customers' electricity in the Market through a variety of plans and sources. Individuals in the Market can either purchase electricity from the District or self-generate electricity through purchased or leased solar energy systems. The District competes with solar energy system installers in the Market to provide electricity and one of its executives allegedly referred to solar energy systems, installers, and advocates as the enemy. The SEPPs are aimed at maintaining the District's monopoly power; impeding solar development despite its recognized benefits; quashing competition for electricity from self-generating customers with solar energy systems; and generating additional revenues for the District through exploitation of its monopoly power. More explicitly, the SEPPs make self-generating solar energy uneconomical and force Market consumers to exclusively purchase the District's electricity. Because the District previously encouraged and even incentivized consumer investment in solar energy systems until 2014, the Plaintiffs claim the District adopted and advertised the SEPPs to deter individuals from investing in solar energy systems and fortify its monopoly. The Plaintiffs allege the SEPPs made it economically unfeasible for customers to install solar energy systems. They further allege there is no rational basis for adopting the SEPPs and the District's reason of recouping fixed expenses required to service post-2014 solar customers is pretextual. Beyond "public policy and logic" warranting relief, the Plaintiffs claim the District's anticompetitive, discriminatory, and unconstitutional conduct warrants monetary, injunctive, and declaratory relief under a variety of federal, state, and constitutional remedies. The Plaintiffs allege the SEPPs violate (1) federal and state antitrust law; (2) state-law price discrimination; (3) federal and state equal protection; and (4) Arizona's Consumer Fraud Act. The District requests judicial notice and moves to dismiss under Federal Rule of Civil Procedure 12(b)(6). Judge Brnovich holds that the District's defenses are availing to the extent that they bar the Plaintiffs' state law and Fourteenth Amendment equal protection claims and the Plaintiffs cannot recover antitrust damages under the Sherman Act. More explicitly, the filed-rate doctrine and state-action immunity are inapplicable. As to the two residual claims that survive the District's defenses and not barred as a matter of law (monopolization and attempted monopolization under the Sherman Act), the FAC inadequately alleges antitrust injury, which is an essential element under antitrust law. If the Plaintiffs wish to file a second amended complaint to fix the deficiencies as they relate to their antitrust claims under the Sherman Act, they may do so within 30 days. Accordingly, the Court granted the District's Motion, and dismissed claims 1 and 2 with leave to amend and dismissed claims 3-9 without leave to amend. The Court granted the District's Request as it relates to judicially noticing Exhibit 1, but denied as to the remaining exhibits. The Plaintiffs may file a Second Amended Complaint. If the Plaintiffs fail to file an amended complaint within 30 days of the Order, the Clerk of Court is directed to terminate the action. A full-text copy of the Court's Jan. 10, 2020 Order is available at https://is.gd/4ok2VF from Leagle.com. William Ellis, individually and on behalf of all others similarly situated, Robert Dill, individually and on behalf of all others similarly situated, Edward Rupprecht, individually and on behalf of all others similarly situated & Robert Gustavis, individually and on behalf of all others similarly situated, Plaintiffs, represented by Alia M. Abdi -- alia.abdi@zimmreed.com -- Zimmerman Reed LLP, pro hac vice, Daniel E. Gustafson -- dgustafson@gustafsongluek.com -- Gustafson Gluek PLLC, pro hac vice, Daniel C. Hedlund -- dheldund@gustafsongluek.com -- Gustafson Gluek PLLC, pro hac vice, Daniel J. Nordin -- dnordin@gustafsongluek.com -- Gustafson Gluek PLLC, pro hac vice, David M. Cialkowski -- david.cialkowski@zimmreed.com -- Zimmerman Reed LLP, pro hac vice & Hart Lawrence Robinovitch -- hart.robinovitch@zimmreed.com -- Zimmerman Reed PLLP. Salt River Project Agricultural Improvement and Power District, Defendant, represented by Christopher E. Babbitt -- CHRISTOPHER.BABBITT@WILMERHALE.COM -- Wilmer Cutler Pickering Hale & Dorr LLP, pro hac vice, Daniel S. Volchok -- DANIEL.VOLCHOK@WILMERHALE.COM -- Wilmer Cutler Pickering Hale & Dorr LLP, pro hac vice, David Gringer - david.gringer@wilmerhale.com -- Wilmer Cutler Pickering Hale & Dorr LLP, pro hac vice & Eric Dell Gere, Jennings Strouss & Salmon PLC. Center for Biological Diversity, Movant, represented by Anchun Jean Su, Center for Biological Diversity, pro hac vice & Howard M. Crystal, Center for Biological Diversity, pro hac vice. SANGAM INC: Andrade Sues Over Illegal SMS Ad Blasts --------------------------------------------------- Jose Andrade, individually and on behalf of all others similarly situated, Plaintiff, v. Sangam Inc., Defendant, Case No. 20-cv-00229, (C.D. Cal., February 4, 2020), seeks injunctive relief, statutory and treble damages for violations of the Telephone Consumer Protection Act. Sangam operates as "Maxerly," a company that provides cash advance services. Maxerly markets its cash advance services using unsolicited, autodialed text messages sent en masse. Andrade has never applied for cash advance services from Maxerly and has never provided his consent to receive text messages in this manner, says the complaint.[BN] Plaintiff is represented by: Rachel E. Kaufman, Esq. KAUFMAN P.A. 400 NW 26th Street Miami, FL 33127 Tel: (305) 469-5881 Email: kaufman@kaufmanpa.com rachel@kaufmanpa.com - and - Robert R. Ahdoot, Esq. Tina Wolfson, Esq. Bradley K. King, SBN 274399 AHDOOT & WOLFSON, PC 10728 Lindbrook Drive Los Angeles, CA 90024 Telephone: (310) 474-9111 Facsimile: (310) 474-8585 Email: rahdoot@ahdootwolfson.com twolfson@ahdootwolfson.com bking@ahdootwolfson.com SAXE MANAGEMENT: Settlement in Bauman Suit Gets Prelim Approval --------------------------------------------------------------- Judge Richard F. Boulware of the U.S. District Court for the District of Nevada granted the Plaintiffs' Motion for Preliminary Approval of Class Action Settlement, including the Parties' Settlement Agreement and Release of Claims in the cases JEREMY BAUMAN, individually and on behalf of all persons similarly situated, Plaintiffs, v. DAVID SAXE, et al., Defendants. BIJAN RAZILOU, et al., Plaintiffs, v. V THEATER GROUP, LLC, et al., Defendants, Case Nos. 2:14-cv-01125-RFB-BNW, 2:14-cv-01160-RFB-BNW (D. Nev.). The Agreement resolves all Released Claims against the Released Parties. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Judge conditionally certified for purposes of the Settlement only, the following Settlement Class: All persons and entities to whom Defendants attempted transmission of one or more text messages, between and including April 1, 2013, to May 31, 2014, to a telephone number assigned to a cell phone at the time of transmission. He appointed (i) Plaintiffs Jeremy Bauman and Bijan Razilou as the Class Representatives; (ii) the law firms of Sound Justice Law Group, PLLC; Mazie Slater Katz & Freeman, LLC; Bailey Kennedy, LLP; Strategic Legal Practices, APC; and Marquis Aurbach Coffing, as the Class Counsel; (iii) Albert H. Kirby of Sound Justice Law Group, PLLC and Matthew Mendelsohn of Mazie Slater Katz & Freeman, LLC, as the Lead Class Counsel; and (iv) Angeion Group as the Settlement Administrator. The Final Approval Hearing is set for June 25, 2020 at 10:30 a.m. The Judge approved the Class Notice in the Settlement Agreement, including the Long Form Notice, Email Notice, and Postcard Notice, the Reminder Email Notice and the manner of providing Email Notice and Postcard Notice to the Settlement Class Members described in Section III of the Settlement Agreement. He directed the Parties and the Settlement Administrator to complete all aspects of the Notice Plan no later than March 27, 2020. The Settlement Administrator will file with the Court by no later than June 11, 2020, which is 14 days prior to the Final Approval Hearing, proof that notice was provided in accordance with the Agreement and the Order. No later than 10 calendar days before the Final Approval Hearing, the counsel for the Defendants will file with the Court one or more declarations stating that the Defendants have complied with its notice obligations under 28 U.S.C. Section 1715. Any Request for Exclusion must be postmarked no later than 90 days from the date of entry of the Preliminary Approval Order. Accordingly, the following are the deadlines by which certain events must occur: a. March 27, 2020 - Deadline for notice to be provided in accordance with the Agreement and the Order (Notice Deadline) [30 days after the date of the Order] b. May 5, 2020 - Deadline for filing of Plaintiff's Motion for Attorneys' Fees and Costs and Service Award [39 days after the Notice Deadline] c. May 26, 2020 - Deadline to file objections or submit requests for exclusion (Opt-Out and Objection Deadline) [60 days after the Notice Deadline] d. June 11, 2020 - Deadline to File Motion for Final Approval [14 days Prior to Final Approval Hearing] e. June 4, 2020 - Deadline for Settlement Administrator to Provide Class Counsel with Proof of Class Notice, Identifying the [7 Days Prior to Filing Motion for Final Number of Requests for Exclusion, and Number of Approval] Objections Received f. June 18, 2020 - Defendants Will File with the Court One or More Declarations Stating that they have Complied with [7 Days Prior to Final Approval Hearing] their Notice Obligations g. June 25, 2020 at 10:30 a.m. in 7C - Final Approval Hearing [No earlier than 120 days after Notice Deadline] A full-text copy of the Court's Feb. 26, 2020 Order is available at https://is.gd/vOiwkv from Leagle.com. Bijan Razilou, Consol Plaintiff, represented by Amanda L. Stevens, Bailey Kennedy, LLP, Dennis L. Kennedy, Bailey Kennedy, Matthew R. Mendelsohn -- mmendelsohn@mazieslater.com -- Mazie Slater Katz & Freeman, LLC, pro hac vice, Paul C. Williams -- PWilliams@BaileyKennedy.com -- Bailey Kennedy, LLP & Payam Shahian, Strategic Legal Practices, APC, pro hac vice. Jeremy Bauman, Plaintiff, represented by Albert H. Kirby, Sound Justice Law Group, PLLC, Candice Renka, Marquis & Aurbach, Phillip S. Aurbach, Marquis & Aurbach & Michael David Maupin, c/o Marquis Aurbach Coffing. Saxe Management LLC, V Theater Group LLC & David Saxe, Defendants, represented by James H. Corning -- jamescorning@dwt.com -- Davis Wright Tremaine LLP, pro hac vice, Kenneth E. Payson -- kenpayson@dwt.com -- Davis Wright Tremaine LLP, pro hac vice & Jeffrey A. Silvestri -- jsilvestri@mcdonaldcarano.com -- McDonald Carano Wilson. Saxe Theater, LLC, Defendant, represented by James H. Corning, Davis Wright Tremaine LLP, pro hac vice & Kenneth E. Payson, Davis Wright Tremaine LLP, pro hac vice. Twilio, Inc., Defendant, represented by Adam Daniel Bowser -- adam.bowser@arentfox.com -- Arent Fox LLP, Michael Brian Hazzard, Jones Day, Joel D. Henriod, Lewis Roca Rothgerber Christie LLP & Kenneth E. Payson, Davis Wright Tremaine LLP. David Saxe Productions, LLC & David Saxe Productions, Inc., Consol Defendants, represented by Carrie McCrea Hanlon, Pyatt Silvestri & Hanlon, Chtd., James H. Corning, Davis Wright Tremaine LLP, pro hac vice, Kenneth E. Payson, Davis Wright Tremaine LLP, pro hac vice & Jeffrey A. Silvestri, McDonald Carano Wilson. SEI INVESTMENTS: $6.8MM Stevens ERISA Suit Deal Gets Final Approval ------------------------------------------------------------------- In the case, GORDON STEVENS, individually and as the representative of a class of similarly situated person, and on behalf of the SEI Capital Accumulation Plan, Plaintiff, v. SEI INVESTMENTS COMPANY, et al., Defendants, Civil Action No. 18-4205 (E.D. Pa.), Judge Nitza I. Quinonez Alejandro of the U.S. District Court for the Eastern District of Pennsylvania granted the Plaintiff's unopposed motion for final approval of class action settlement agreement and a motion for approval of attorneys' fees, expenses and class representative service award. Stevens, on behalf of himself and all others similarly situated, brought the class action against the Defendants, asserting claims for breach of fiduciary duty under the Employee Retirement Income Security Act ("ERISA"), relating to the SEI Capital Accumulation Plan. In summary, the Plaintiff alleged that the Plan's fiduciaries retained SEI-affiliated investments in the Plan that a prudent and unbiased fiduciary would not have retained. The Defendants denied the allegations and asserted various affirmative defenses. During the parties' initial pretrial conference with the Court, the parties agreed to engage in early mediation. In preparation for the mediation, the parties engaged in focused discovery, which included the production of more than 6,800 pages of documents by the Defendants. The Plaintiff's counsel also retained and consulted with an expert. In addition, the parties exchanged written mediation statements outlining their factual and legal positions. The parties then engaged in a full-day mediation before Hunter R. Hughes, III, an experienced and well-respected mediator who has successfully resolved numerous high-stakes class actions, including those involving ERISA breach of fiduciary duty claims. Although a settlement was not reached at the initial mediation, the parties continued their settlement discussions through the mediator. With the assistance of the mediator, the parties eventually reached a settlement. The Settlement Agreement provides substantial economic benefits to the certified class. The Settlement creates a total settlement fund of $6.8 million, to be reduced by any amount approved by the Court for attorneys' fees and costs, administrative expenses, and a class representative service award. Within 120 days after the settlement effective date, the net settlement fund will be distributed to the Class Members in proportion to their average quarterly account balances. The Current Plan participants will have their Plan accounts automatically credited with their share of the Settlement Fund. The Former Plan participants are required to submit a claim form, which allows them to receive a direct payment by check or elect to have their distribution rolled over into an individual retirement account or other eligible employer plan. Under no circumstances will any monies revert to SEI. Any uncashed checks will revert to the Qualified Settlement Fund and will be paid to the Plan for the purpose of defraying administrative fees and expenses of the Plan. The Settlement also provides various prospective relief with respect to the management of the Plan, which will benefit current and future participants. As consideration for these settlement benefits, Defendants will receive a mutual release of all claims between the parties. Notably, an independent fiduciary found that the terms of the release, including the release of claims by the Plan, are reasonable. By Order dated July 31, 2019, the Court granted preliminary approval to the proposed Settlement and provisionally certified the proposed class. Pursuant to the Court's Preliminary Approval Order, Analytics Consulting, LLC was appointed to serve as the Settlement Administrator. As part of its responsibilities, Analytics sent notice to the relevant governmental officials under the Class Action Fairness Act ("CAFA"), effected publication notice, and sent direct notice to the Class Members in accordance with the plan for notice. The Notice was mailed to 5,734 Settlement Class members. Of those notices, only 2.65% were returned as undeliverable. One objection -- challenging the Class Counsel's requested attorneys' fees and explicitly declining to object to any terms of the settlement -- was received. Pursuant to the terms of the Settlement, the Settlement was submitted to an independent fiduciary for review following the Court's preliminary approval order. After reviewing the Settlement and other case documents, and interviewing counsel for each of the parties, the Independent Fiduciary concluded that: (1) the Settlement terms, including the scope of the release of claims, the amount of cash received by the Plan, the non-monetary consideration and the amount of any attorneys' fee award or any other sums to be paid from the recovery, are reasonable in light of the Plan's likelihood of full recovery, the risks and costs of litigation, and the value of claims forgone; (2) the terms and conditions of the transaction are no less favorable to the Plan than comparable arm's-length terms and conditions that would have been agreed to by unrelated parties under similar circumstances; and (3) the transaction is not part of an agreement, arrangement or understanding designed to benefit a party in interest. Before the Court is a motion for final approval of class action settlement agreement and a motion for approval of attorneys' fees, expenses and class representative service award, filed by the Plaintiff. A hearing was held on Dec. 18, 2019, at which the Court heard oral argument on Plaintiff's unopposed motion for final approval of the Settlement Agreement. As compensation for their legal services and efforts, the Class Counsel have requested that the Court approves the portion of the settlement that provides for reimbursement of attorneys' fees in an amount equal to one-third of the total settlement amount, or $2,266,666, litigation expenses in the amount of $17,734.97, and settlement administration expenses in the amount of $42,436. The Class Counsel also seek the Court's approval of a Service Award, in the amount of $20,000, to Plaintiff Stevens, for his willingness to undertake the risks and the burden as a class representative in the litigation. Judge Alejandro finds (i) that the proposed class action settlement is fair and reasonable; (ii) that the requirements of Rule 23 are met and that certification of the proposed class is proper; (iii)finds that the attorneys' fees, and the litigation and administrative expenses listed by the Class Counsel are reasonable and expected in this type of case; and (iv) the requested award is well within the range of awards made in similar cases. She, therefore, granted final approval of the proposed class action settlement, awarded the Class Counsel reasonable attorneys' fees in the amount of $2,266,666 and the reimbursement of litigation and administrative expenses in the amount of $60,170.97, and awarded the sum of $10,000 to the Class Representative, Gordon Stevens. An Order consistent with the Memorandum Opinion follows. A full-text copy of the Court's Feb. 26, 2020 Memorandum Opinion is available at https://is.gd/zweTfr from Leagle.com. GORDON STEVENS, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY SITUATED PERSONS, AND ON BEHALF OF THE SEI CAPITAL ACCUMULATION PLAN, Plaintiff, represented by PETER D. WINEBRAKE -- pwinebrake@winebrakelaw.com -- WINEBRAKE & SANTILLO, LLC, R. ANDREW SANTILLO -- asantillo@winebrakelaw.com -- WINEBRAKE & SANTILLO, LLC, BROCK SPECHT, NICHOLS KASTER, PLLP, CARL F. ENGSTROM -- cengstrom@nka.com -- NICHOLS KASTER, PLLP, CHLOE A. O'NEILL, NICHOLS KASTER PLLP, KAI H. RICHTER -- krichter@nka.com -- NICHOLS KASTER PLLP & PAUL J. LUKAS -- lukas@nka.com -- NICHOLS KASTER PLLP. SEI INVESTMENTS COMPANY, SEI INVESTMENTS MANAGEMENT CORPORATION, SEI CAPITAL ACCUMULATION PLAN DESIGN COMMITTEE, SEI CAPITAL ACCUMULATION PLAN INVESTMENT COMMITTEE & SEI CAPITAL ACCUMULATION PLAN ADMINISTRATION COMMITTEE, Defendants, represented by HILLARY E. AUGUST -- hillary.august@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP, BRIAN T. ORTELERE -- brian.ortelere@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP, CHRISTOPHER VARANO, MORGAN, LEWIS & BOCKIUS LLP & JEREMY P. BLUMENFELD -- jeremy.blumenfeld@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP. SPECTRUM PHARMACEUTICALS: Securities Suit Deal Has Prelim. Approval ------------------------------------------------------------------- In the case, IN RE SPECTRUM PHARMACEUTICALS, INC. SECURITIES LITIGATION, Case No. 2:16-cv-02279-RFB-EJY (D. Nev.), Judge Richard F. Boulware, II of the U.S. District Court for the District of Nevada granted the Lead Plaintiffs' Motion For Preliminary Approval of Class Action Settlement. The parties have entered into the Stipulation and Agreement of Settlement, dated Nov. 6, 2019. Pursuant to Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure and for the purposes of the Settlement only, Judge Boulware preliminarily certified the Action as a class action on behalf of all Persons (including, without limitation, their beneficiaries) and entities, other than Defendants and their affiliates, who purchased or acquired Spectrum common stock (including through the exercise of warrants or options, or other form of issuance or options) and/or call options, and/or sold Spectrum put options, during the period from Jan. 31, 2013 through Sept. 16, 2016, both dates inclusive. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, preliminarily and for the purposes of the Settlement only, the Lead Plaintiffs are certified as the class representatives; and the Lead Counsel, previously selected by the Lead Plaintiffs and appointed by the Court, are appointed as the Lead Counsel. The Judge preliminarily approved the Settlement, subject to further consideration at a hearing pursuant to Federal Rule of Civil Procedure 23(e), which is scheduled to be held before the Court on July 22, 2020 at 11:00 a.m. The Judge approved the form, substance and requirements of (a) the Notice, (b) the Summary Notice and (c) the Proof of Claim and Release Form, all of which are exhibits to the Settlement Stipulation. For settlement purposes only, Strategic Claims Services is appointed and approved as the Claims Administrator. The Class Counsel, through the Claims Administrator, will cause the Notice and the Proof of Claim and Release Form within 16 calendar days of the entry of the Order, to all Settlement Class Members who can be identified with reasonable effort by the Class Counsel, through the Claims Administrator. The Escrow Agent may, at any time after entry of the Order and without further approval from the Defendants or the Court, disburse at the direction of the Class Counsel up to $250,000 from the Settlement Fund prior to the Effective Date to pay Administrative Costs. After the Effective Date, additional amounts, up to $100,000, may be transferred from the Settlement Fund to pay for any necessary additional Administrative Costs without further order of the Court. No later than seven calendar days after the date of the Order, the Company will provide and/or cause its transfer agent to provide to Class Counsel a list of the record owners of Spectrum common stock during the Class Period in a usable electronic format, such as an excel spreadsheet. This information will be kept confidential and not used for any purpose other than to provide the notice contemplated by the Order. The Class Counsel, through the Claims Administrator, will make all reasonable efforts to give notice to nominees or custodians who held Spectrum common stock during the Class Period as record owners but not as beneficial owners. Such nominees or custodians will, within 10 calendar days of receipt of notice, either: (i) request copies of the Notice and Proof of Claim and Release Form sufficient to send to all beneficial owners for whom they are nominee or custodian, and within 10 calendar days after receipt thereof send copies to such beneficial owners; or (ii) provide the Claims Administrator with lists of the names, last known addresses and email addresses (to the extent known) of such beneficial owners, in which event the Claims Administrator will promptly deliver the Notice and Proof of Claim and Release Form to such beneficial owners. The Claims Administrator will, if requested, reimburse nominees or custodians out of the Settlement Fund solely for their reasonable out-of-pocket expenses, in an amount not to exceed $0.15 plus postage at the current pre-sort rate used by the Claims Administrator per Notice and Proof of Claim and Release Form; $0.05 per Notice and Proof of Claim and Release Form transmitted by email; or $0.05 per name, address, and/or email address provided to the Claims Administrator, which expenses would not have been incurred except for the sending of such notice, and subject to further order of the Court with respect to any dispute concerning such reimbursement. Such expenses must be properly documented supporting the expenses for which reimbursement is sought. In order to be entitled to participate in recovery from the Net Settlement Fund after the Effective Date, each Settlement Class Member will take the following action and be subject to the following conditions: a. A properly completed and executed Proof of Claim and Release Form must be submitted to the Claims Administrator, at the Post Office Box indicated in the Notice, postmarked no later than June 8, 2020 (44 calendar days prior to the Settlement Hearing). b. Persons who timely submit a Proof of Claim and Release Form that is deficient or otherwise rejected will be afforded a reasonable time (at least 10 calendar days) to cure such deficiency if it will appear that such deficiency may be cured. If any Claimant whose claim has been rejected in whole or in part wishes to contest such rejection, the Claimant must, within 10 calendar days after the date of mailing of the notice, serve upon the Claims Administrator a notice and statement of reasons indicating the Claimant's ground for contesting the rejection along with any supporting documentation, and requesting a review thereof by the Court. If an issue concerning a claim cannot be otherwise resolved, the Class Counsel will thereafter present the request for review to the Court. A Settlement Class Member wishing to make such request for exclusion will file no later thatn July 1, 2020 (21 calendar days prior to the Settlement Hearing). Any Person that submits a request for exclusion may thereafter submit to the Claims Administrator a written revocation of that request for exclusion, provided that it is received no later than two Business Days before the Settlement Hearing, in which event that Person will be included in the Settlement Class. All Persons who submit a valid, timely and unrevoked request for exclusion will be forever barred from receiving any payments from the Net Settlement Fund. The Court will consider comments and/or objections to the Settlement, the Plan of Allocation, or the Fee and Expense Application that are filed at least 21 calendar days prior to the Settlement Hearing Date. All papers in support of the Settlement, the Plan of Allocation and/or the Fee and Expense Application will be filed and served no later than 28 calendar days before the Settlement Hearing. Any submissions filed in response to any objections or in further support of the Settlement, the Plan of Allocation and/or the Fee and Expense Application will be filed no later than seven calendar days prior to the Settlement Hearing. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/geCzVn from Leagle.com. Olutayo Ayeni, Consol Plaintiff, represented by Laurence M. Rosen -- lrosen@rosenlegal.com -- The Rosen Law Firm, P.A. & William Ginn -- bill@levertylaw.com -- Leverty & Associates, Chtd. Michael Bestwick & Mark Hawkins, Movants, represented by Laurence M. Rosen, The Rosen Law Firm, P.A., pro hac vice, Peretz Bronstein, Bronstein, Gewirtz and Grossman, LLC, Phillip Kim, The Rosen Law Firm, pro hac vice, Shimon Yiftach, Bronstein Gewirtz & Grossman LLC, Gonen Haklay, The Rosen Law Firm, P.A., pro hac vice, Jacob A. Goldberg, The Rosen Law Firm, P.A., pro hac vice, Leah Heifetz-Li, The Rosen Law Firm, P.A., pro hac vice, Patrick R. Leverty, Leverty & Associates Chtd & William Ginn, Leverty & Associates, Chtd. Anchorage Police & Fire Retirement System, Movant, represented by Griffith H. Hayes, Litchfield Cavo LLP & Javier Bleichmar, Bleichmar Fonti & Auld LLP. Spectrum Pharmaceuticals, Inc., Defendant, represented by Raymond Stockstill -- beaustockstill@paulhastings.com -- Paul Hastings LLP, pro hac vice, Tamara Beatty Peterson -- tpeterson@petersonbaker.com -- Peterson Baker, PLLC & Christopher H. McGrath -- chrismcgrath@paulhastings.com -- Paul Hastings LLP, pro hac vice. Rajesh Shrotriya, Defendant, represented by Bradley T. Austin, Snell & Wilmer LLP, Patrick Gerard Byrne, Snell & Wilmer, Alison Clare Jordan, Fenwick & West LLP, pro hac vice, Jay L. Pomerantz, Fenwick & West LLP & Kevin Peter Muck, Fenwick & West LLP, pro hac vice. Kurt A Gustafson & Joseph K. Keller, Consol Defendants, represented by Tamara Beatty Peterson, Peterson Baker, PLLC & Christopher H. McGrath, Paul Hastings LLP, pro hac vice. Joseph Turgeon & Lee Allen, Consol Defendants, represented by Raymond Stockstill, Paul Hastings LLP, pro hac vice, Tamara Beatty Peterson, Peterson Baker, PLLC & Christopher H. McGrath, Paul Hastings LLP, pro hac vice. SPRINT COMMUNICATIONS: Summary Judgment Bid in Gorss Partly Granted ------------------------------------------------------------------- In the case, GORSS MOTELS INC., Plaintiff, v. SPRINT COMMUNICATIONS COMPANY, L.P. et al., Defendants, Case No. 3:17-cv-546 (JAM) (D. Conn.), Judge Jeffrey Alker Meyer of the U.S. District Court for the District of Connecticut granted in part and denied in part Sprint's motion for summary judgment. The Junk Fax Prevention Act is one of many federal consumer protection laws, and it generally prohibits the transmission of unsolicited advertising faxes while allowing for a private right of action against its violators. Connecticut has its own similar statute. Gorss has filed the lawsuit against Sprint alleging claims under both these laws stemming from nine fax advertisements that Gorss received from 2013 to 2015. Gorss' lawsuit against Sprint is among many junk fax lawsuits that Gorss has filed against multiple defendants in the District and elsewhere. Gorss entered into a 20-year franchise agreement in 1988 to operate a Super 8 motel in Cromwell, Connecticut. The Super 8 motels were a subsidiary of the Wyndham Hotel Group. The parties amended the franchise agreement in 2009 to extend the franchise to 2014, and then in September 2014 they entered into a new franchise agreement extending the term of the franchise until the end of Gorss' motel business in 2016. Gorss had one fax machine, located behind the front desk of the motel, and furnished its fax number to Wyndham in the course of its regular franchise business dealings. Its fax number was also published in a Super 8 motel directory. Sprint was one of Wyndham's approved suppliers for its motel franchises, and Gorss used Sprint Communications Co. (an affiliate of Defendant Sprint Solutions Inc.) for its long-distance telephone services. On various dates from April 2013 to August 2015, Gorss received nine faxes that advertised Sprint's telephone products and services. Four of these faxes came from a telephone number (646-448-8111) that was assigned to Sprint. These four faxes did not contain any information about how Gorss might "opt out" from receiving more faxes. The other five were sent from a telephone number that was operated by a company known as Westfax, Inc., which had a relationship with Wyndham and which sent the faxes as part of Wyndham's promotional activities on behalf of its approved suppliers like Sprint. In contrast to the four faxes that came from a number assigned to Sprint, these five faxes from Westfax, Inc. included advisories about how Gorss could opt out from receiving such faxes. Gorss filed the class action lawsuit in 2017 alleging that the nine faxes it received were sent in violation of both federal and state junk fax prevention laws. Sprint now moves for summary judgment. It argues that all nine of the faxes at issue were not "unsolicd" and therefore fall outside the scope of the federal Junk Fax Prevention Act. Judge Meyer granted in part and denied in part Sprint's motion for summary judgment. Summary judgment is granted as to all claims under the Connecticut junk fax statute. Summary judgment is denied as to all claims under the federal Junk Fax Prevention Act. Among other things, Judge Meyer finds that the Connecticut General Assembly could have drafted the statute to include not only persons who use a machine to send junk faxes but those who cause others to do so on their behalf. It did so -- but only for emails, not faxes. The very next subsection of the Connecticut statute, penalizing junk email, provides in relevant part that no person will send unsolicited advertising material by electronic mail, or cause such material to be sent by electronic mail. The Connecticut junk fax statute conspicuously lacks this sweeping language, and therefore it should be limited to its terms. Accordingly, Judge Meyer granted Sprint's motion for summary judgment to dismiss all of Gorss' claims under the Connecticut junk fax statute. The parties will submit a joint status report and proposed case schedule within 14 days. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/H4V362 from Leagle.com. Gorss Motels Inc., a Connecticut corporation, individually and as the representative of a class of similarly situated persons, Plaintiff, represented by Aytan Y. Bellin -- Aytan.Bellin@bellinlaw.com -- Bellin & Associates, LLC & Ryan Michael Kelly -- rkelly@andersonwanca.com -- Anderson & Wanca. Sprint Solutions, Inc., a Delaware corporation, Defendant, represented by Tammy L. Adkins -- tadkins@mcguirewoods.com -- McGuire Woods LLP, pro hac vice, Jeffrey J. White -- jwhite@rc.com -- Robinson & Cole, LLP & Kathleen Elizabeth Dion -- Kdion@rc.com -- Robinson & Cole, LLP. STARBUCKS CORP: Adams Hits Coffee Dilution on Large Size Servings ----------------------------------------------------------------- Teresa Adams, individually and on behalf of all others similarly situated, Plaintiffs, v. Starbucks Corporation and Does 1 through 50, inclusive, Defendant, Case No. 20-cv-00225, (C.D. Cal., February 4, 2020), seeks redress for violations of California's Unfair Competition Laws, Business and Professions Code, False Advertising Laws and Consumer Legal Remedies Act. Starbucks is a prominent coffee roaster and retailer with over 24,000 retail stores in 70 different countries. Adams alleges that Starbucks misrepresented that the larger, Venti-sized select hot espresso beverages contained more espresso, and therefore, more caffeine, than their smaller Grande-sized equivalent. Adams contests that the larger container is merely diluted to increase its volume to fill up a larger cup. [BN] Plaintiff is represented by: Todd D. Carpenter, Esq. (Eddie) Jae K. Kim, Esq. Scott G. Braden, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1350 Columbia Street, Suite 603 San Diego, CA 92101 Tel: (619) 762-1910 Fax: (619) 756-6991 Email: tcarpenter@carlsonlynch.com ekim@carlsonlynch.com sbraden@carlsonlynch.com STATE FARM MUTUAL: Clemons Sues Over Illegal Telemarketing Calls ---------------------------------------------------------------- Sherry L. Clemons on behalf of herself and others similarly situated, Plaintiff, v. State Farm Mutual Automobile Insurance Company, Defendant, Case No. 20-cv-01050 (C.D. Ill., February 3, 2020), seeks injunctive relief, statutory damages and any other available legal or equitable remedies for violations of the Telephone Consumer Protection Act. State Farm is the parent company of a series of interrelated insurance and financial services companies. It made telemarketing calls to Clemons' phone without her prior express written consent, says the complaint. Clemons is on the National Do-Not-Call Registry. [BN] The Plaintiff is represented by: Michael J. Boyle, Jr., Esq. Matthew R. Wilson, Esq. MEYER WILSON CO., LPA 1320 Dublin Road, Suite 100 Columbus, OH 43215 Telephone: (614) 224-6000 Facsimile: (614) 224-6066 Email: mboyle@meyerwilson.com mwilson@meyerwilson.com - and - Anthony Paronich, Esq. PARONICH LAW, P.C. 350 Lincoln Street, Suite 2400 Hingham, MA 02043 Tel: (617) 485-0018 Fax: (508) 318-8100 Email: anthony@paronichlaw.com TELEFONAKTIEBOLAGET LM: Second Amended Securities Suit Dismissed ---------------------------------------------------------------- In the case, OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM et al., Plaintiffs, v. TELEFONAKTIEBOLAGET LM ERICSSON et al., Defendants, Case No. 18-CV-3021 (JMF) (S.D. N.Y.), Judge Jesse M. Furman of the U.S. District Court for the Southern District of New York granted the Defendants' motion pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Second Amended Complaint. Ericsson is a Swedish company that provides hardware and services for telecommunications networks. In the putative securities fraud class action, investors allege that Ericsson and several of its senior executive officers and directors made false and misleading statements and omissions about the company's financial performance, accounting practices, internal controls, and policies related to certain long-term service contracts. Ericsson is a public company, incorporated and headquartered in Sweden and traded on the NASDAQ, that provides networking hardware and services to telecommunications companies, like cellular phone providers, around the world. In connection with its long-term service contracts, Ericsson allegedly engaged in four business and accounting practices relevant in case. First, Ericsson entered into long-term "loss-leading contracts" -- contracts that Ericsson entered into with the understanding that they were going to lose money, but undertook anyway to gain market share. Second, Ericsson underestimated -- or "under-scoped" -- the costs of long-term service contracts in order to win project bids. Third, the Complaint alleges that Ericsson delayed recognizing costs that it incurred by "pushing" them onto the accounting books for later financial quarters. Fourth, the Plaintiffs assert that Ericsson prematurely recognized revenues in its accounting. The Plaintiffs allege that, without disclosing these four practices, Ericsson regularly reported its financial results. Ericsson also made a variety of affirmative statements related to its contracts, accounting practices, and internal controls. On April 5, 2018, the Plaintiffs filed the lawsuit, alleging that the Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. The Defendants now move to dismiss the Second Amended Complaint. The Plaintiffs seek to hold all the Defendants liable for securities fraud under Section 10(b) and Rule 10b-5 and to hold the individual Defendants liable as "control persons" under Section 20(a). To state a claim for relief under Section 10(b) and Rule 10b-5 (and by extension, a claim under Section 20(a)), a plaintiff must plausibly allege "(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation." For a variety of reasons, Judge Furman holds that the Plaintiffs' claims fail to satisfy these requirements. The Court first addresses the Plaintiffs' main allegations -- those concerning Ericsson's financial reporting and stated accounting practices -- and then turns to the Plaintiffs' remaining allegations. The Court finds that the Plaintiffs fail to adequately allege that any of the Defendants' alleged statements about its financial results or accounting practices were false in light of the alleged practices of entering into loss-leading and under-scoped contracts. In addition, they fail to allege that such statements, even if false, were made with the requisite scienter. Accordingly, these claims must be and are dismissed. Next, the Court finds that the Plaintiffs fail to adequately allege that any of the Defendants' alleged statements about its financial results or accounting practices were false because of the alleged practices of prematurely recognizing revenues and delaying recognition of costs. In addition, they fail to allege that such statements, even if false, were made with scienter. Accordingly, these claims must be and are dismissed as well. The Plaintiffs' remaining claims also fail as a matter of law, for various reasons, the Court holds. First, the Plaintiffs allege a series of misrepresentations that are not actionable because they are expressions of puffery and corporate optimism. Second, the Plaintiffs allege a series of misrepresentations that fall under the PSLRA's safe harbor for forward-looking statements and the judicial "bespeaks caution" doctrine. Third, they allege a misrepresentation that is not actionable because it qualifies as an opinion. Fourth, the Plaintiffs identify a series of misrepresentations for which they do not adequately allege falsity. Fifth, the Plaintiffs target the Defendants' Sarbanes-Oxley Act ("SOX") certifications, but these claims must be dismissed because the Plaintiffs fail to allege any particularized facts pertaining to the Company's internal structure for financial controls. Finally, the Plaintiffs' clear failure to plead scienter dooms their claims based on the Defendants' failure to disclose its four business practices, as well as the Feed the Gorilla and Bare Bone Tender Scoping policies. Based on the foregoing, Judge Furman concludes that the Plaintiffs' Section 10(b) and Rule 10b-5 claims must be and are dismissed. It follows that their Section 20(a) claim fails as well. The Court need not and does not reach the Defendants' other arguments for dismissal, including their contention that the Court lacks personal jurisdiction over the individual Defendant Mellander. The Plaintiffs request leave to amend. The Court is skeptical that the Plaintiffs will be able to allege additional facts sufficient to cure the defects identified. Nevertheless, the Court recognizes that there is a strong preference for granting leave to amend in securities cases, such as this one, that involve "a complex commercial reality" and a "long, multi-prong complaint." Accordingly, out of an abundance of caution, leave to amend is granted. No further opportunities to amend the Complaint to address the issues raised in the motion to dismiss will be given. A full-text copy of the District Court's Jan. 10, 2020 Opinion & Order is available at https://is.gd/LLeiSb from Leagle.com. Oklahoma Law Enforcement Retirement System, Lead Plaintiff, represented by David Avi Rosenfeld -- DRosenfeld@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, Joseph Frank Russello -- jrussello@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP, William John Geddish -- wgeddish@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP & Samuel Howard Rudman -- SRudman@rgrdlaw.com -- Robbins Geller Rudman & Dowd LLP. Bristol County Retirement System, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Francis Paul McConville -- fmcconville@labaton.com -- Labaton & Sucharow LLP & Christopher J. Keller -- ckeller@labaton.com -- Labaton Sucharow, LLP. Greater Pennsylvania Carpenters' Pension Fund, Movant, represented by Carol Cecilia Villegas, Labaton & Sucharow LLP, Christopher J. Keller, Labaton Sucharow, LLP, Jake E. Bissell-Linsk, Labaton & Sucharow LLP, Joseph Frank Russello, Robbins Geller Rudman & Dowd LLP & Samuel Howard Rudman, Robbins Geller Rudman & Dowd LLP. Telefonaktiebolaget LM Ericsson, Hans Vestberg, Jan Frykhammar, Magnus Mandersson, Borje E. Ekholm & Carl Mellander, Defendants, represented by Brad Scott Karp -- bkarp@paulweiss.com -- Paul Weiss, Daniel Jonathan Kramer -- dkramer@paulweiss.com -- Paul Weiss, Susanna Michele Buergel -- sbuergel@paulweiss.com -- Paul Weiss & Maxwell Arlie Halpern Kosman -- mkosman@paulweiss.com -- Paul, Weiss, Rifkind, Wharton & Garrison. TRADESMEN INTERNATIONAL: Class Claims Stricken in Glass Suit ------------------------------------------------------------ Judge Pamela A. Barker of the U.S. District Court for the Northern District of Ohio, Eastern Division, (i) granted McClone's Motion to Join Pending Dispositive Motions; (ii) denied the Plaintiffs' Motion to Remand, or, in the Alternative for Expedited Discovery Regarding Prospective Class; (iii) granted Tradesmen's Motion to Dismiss or Strike Plaintiffs' Class Claims; and (iv) granted in part Tradesmen's Motion to Compel Individual Arbitration and to Dismiss the Claims of Plaintiffs Masiella and Glass in the case captioned JENNIFER GLASS, et al., Plaintiffs, v. TRADESMEN INTERNATIONAL, LLC, et al., Defendants, Case No. 5:19-CV-01331 (N.D. Ohio) Tradesmen describes itself as a staffing company that specializes in providing skilled and experienced craft professionals to employers throughout the United States and Canada. It is a Delaware limited liability company, but maintains its corporate headquarters in Macedonia, Ohio. The Plaintiffs are all former Tradesmen employees that worked in various positions in the company between 2004 and 2017. They each claim that they were subjected to severe discrimination and sexual harassment while they were employed by Tradesmen. In particular, Masiella and Reese allege that their supervisor, McClone, harassed and unfairly targeted them for negative treatment after they rebuffed his sexual advances and that Tradesmen took no action against him despite their complaints to Tradesmen's Human Resources and other upper-level executives. Masiella claims that she was forced to take another position for less pay at Tradesmen in order to get away from McClone, but the new position was not sustainable, and she ended up leaving Tradesmen. Reese claims McClone eventually fired her for not having sex with him and for complaining to Human Resources about his behavior. Glass does not make any specific allegations against McClone, but asserts that her male colleagues, managers, and even senior executives would frequently remark on her dress, her breasts, and other parts of her body, tell obscene and sexually-charged jokes, and engage in sexual innuendo that had the effect of objectifying women. Glass also claims that she was groped by her superiors and denied promotions because she was a woman. According to Glass, she left Tradesmen after learning that Tradesmen had begun to search for someone to replace her and that she was going to lose her job. The Plaintiffs assert that similar unlawful conduct and differential treatment between male and female employees occurs as a pattern and practice throughout all of Tradesmen's offices. On Oct. 7, 2016, while Masiella and Glass were still employed at Tradesmen, Tradesmen emailed an Employment Arbitration Agreement to all employees with active Tradesmen email addresses, including Masiella and Glass. On Oct. 11, 2016, Tradesmen sent a follow-up email containing the Arbitration Agreement to all Tradesmen employees with active email addresses who did not open the earlier email sent on Oct. 7, 2016, including Masiella. Tradesmen's records show that both Masiella and Glass received and opened an email containing the Arbitration Agreement. Tradesmen utilizes software that, among other things, allows it to track activity associated with sent emails and to generate reports reflecting that activity. It utilized the software on Oct. 7, 2016, when it sent the Arbitration Agreement to Glass, and it utilized the software on Oct. 11, 2016, when it sent the Arbitration Agreement to Masiella. According to Tradesmen's records, Glass opened the Oct. 7, 2016 email containing the Arbitration Agreement 15 times -- nine times on Oct. 7, 2016, five times on Oct. 9, 2016, and one time on Oct. 10, 2016. In addition, Masiella opened the Oct. 11, 2016 email containing the Arbitration Agreement 23 times -- 21 times on Oct. 12, 2016, one time on Oct. 13, 2016, and one time on Nov. 14, 2016. Neither Masiella nor Glass dispute that they received the Arbitration Agreement in October 2016. Subsequently, Glass did not submit an Opt-Out Form and continued her employment with Tradesmen through the first week of November 2016. However, Glass contends that although she continued to work for Tradesmen through the first week of November 2016, she had already accepted a job from a new employer prior to the Oct. 21, 2016 deadline for opting out of the Arbitration Agreement. Masiella continued her employment with Tradesmen through approximately Jan. 27, 2017. According to Tradesmen's former Director of Human Resources, Jeannie Woodall, Masiella did not return an Opt-Out Form and does not appear on a spreadsheet that tracked which employees had submitted an Opt-Out Form. In contrast, Masiella contends that, before Oct. 21, 2016, she executed an Opt-Out Form, brought it into Tradesmen, and hand-delivered it to Woodall. Masiella claims that Woodall accepted the Opt-Out Form from her and at no time stated that Masiella needed to mail the form to her. Masiella asserts that she chose to opt out of the Arbitration Agreement after consulting her husband, who told her to sign the Opt-Out Form and that he had faced a similar situation at a previous employer. On May 10, 2019, the Plaintiffs filed a Class Action Complaint against Tradesmen and McClone in the Court of Common Pleas of Summit County, Ohio. In the Complaint, the Plaintiffs assert claims on behalf of themselves and a putative class of female employees against Defendants for gender discrimination, sexual harassment/hostile work environment, retaliation, and aiding and abetting discrimination in violation of the Ohio Civil Rights Act. They define the proposed class as "all females who are, have been, or will be employed by Tradesmen during the applicable liability period until the date of judgment." On June 10, 2019, Tradesmen removed the suit to the Court, asserting that federal jurisdiction exists pursuant to the Class Action Fairness Act. Shortly thereafter, on June 17, 2019, Tradesmen filed its Motion to Strike Class Claims, seeking to dismiss or strike Plaintiffs' class claims for a variety of reasons. On the same day, Tradesmen also filed its Motion to Compel Arbitration, requesting an order compelling individual arbitration and dismissing the claims of Glass and Masiella.1 On July 1, 2019, the Plaintiffs filed their Motion to Remand. Based on certain exceptions to CAFA jurisdiction, they claim that the Court either lacks subject matter jurisdiction entirely or should decline to accept such jurisdiction. They also sought limited discovery regarding prospective class members in support of their position that an exception to CAFA jurisdiction applies in this case. On Aug. 19, 2019, the Court granted the Plaintiffs' request for expedited discovery regarding the prospective class members and permitted both parties to submit supplemental briefs once discovery was completed, which Plaintiffs and Tradesmen did on Oct. 3, 2019 and Oct. 17, 2019, respectively. The Plaintiffs do not challenge the fact that Tradesmen has established the jurisdictional requirements under CAFA. There is no dispute that minimal diversity of citizenship exists, that the proposed class includes at least 100 members, and that the aggregate amount in controversy exceeds $5 million. Instead, the Plaintiffs contend that two exceptions under CAFA warrant remand -- local controversy nor the interests of justice exceptions to CAFA jurisdiction. Judge Barker finds that the Plaintiffs have failed to establish that two-thirds of the members of the class are citizens of Ohio, and thus have failed to meet their burden to show that the local controversy exception applies. The class definition in the Plaintiffs' Complaint unambiguously sets forth a nationwide class consisting of all female Tradesmen employees, and that it is the relevant definition for purposes of determining whether CAFA jurisdiction exists. Again, the Plaintiffs provide no evidence that demonstrates that one-third of the class members under the definition are citizens of Ohio. Because neither the local controversy nor the interests of justice exceptions to CAFA jurisdiction are applicable to the Plaintiffs' class action, the Judge denies the Plaintiffs' Motion to Remand. Tradesmen moves to dismiss the Plaintiffs' class claims pursuant to Rule 12(b)(6) or, in the alternative, to strike their class allegations pursuant to Rules 12(f) and 23(d)(1)(D) because their proposed nationwide class of Tradesmen employees (1) cannot be maintained because the Ohio Civil Rights Act does not apply extraterritorially, (2) applying Ohio law nationwide would violate the Erie doctrine, and (3) applying Ohio law nationwide would violate the Commerce Clause. Judge Barker finds that all of the Plaintiffs' claims are based on the Ohio Civil Rights Act, and they concede that the Ohio Civil Rights Act only covers claims that are based on conduct tied to Ohio. Yet, the Plaintiffs' Complaint seeks to certify a nationwide class of female Tradesmen employees, which includes employees who are employed outside of Ohio, many of whom have apparently never traveled to Ohio in connection with their employment. The Plaintiffs cannot impose the Ohio Civil Rights Act on Tradesmen employees with no connection to Ohio, and striking Plaintiffs' class allegations is thus appropriate. Moreover, the application of the Ohio Civil Rights Act to a nationwide class of female Tradesmen employees would raise serious constitutional concerns. Accordingly, the Judge finds that a nationwide class may not be certified for the Plaintiffs' claims and strikes their class allegations. The sole issue in dispute in the case is whether the parties agreed to arbitrate. Tradesmen contends that it entered into valid agreements to arbitrate with Glass and Masiella, while the Plaintiffs contend that the Arbitration Agreement lacks valid consideration and that neither Glass nor Masiella accepted the Arbitration Agreement. The Plaintiffs also request expedited discovery and an evidentiary hearing, if necessary, to determine whether the Arbitration Agreement should be enforced. Judge Barker finds (i) that the Arbitration Agreement does not fail for lack of consideration; and (ii) a genuine issue of material fact exists with respect to whether Masiella opted out of the Arbitration Agreement. As such, the validity of the Arbitration Agreement is in issue, and an evidentiary hearing is required. For the reasons she set forth, Judge Barker granted McClone's Motion to Join. She denied the Plaintiffs' Motion to Remand. The Judge granted Tradesmen's Motion to Strike Class Claims. The class allegations in the Plaintiffs' Complaint are stricken. The Plaintiffs are granted leave to amend their Complaint within 30 days of the Order. The Judge granted in part Tradesmen's Motion to Compel Arbitration. Glass' claims are dismissed. She ordered Glass and the Defendants to arbitration pursuant to the terms of the Arbitration Agreement. She deferred ruling on Tradesmen's Motion to Compel Arbitration with respect Masiella until the completion of an evidentiary hearing to determine whether there exists an enforceable arbitration agreement between Masiella and Tradesmen. Accordingly, an evidentiary hearing is set on April 14, 2020 at 1:30 p.m. The parties may conduct discovery prior to the hearing on issues relevant to the existence of an enforceable arbitration agreement between Masiella and Tradesmen. All written discovery requests must be issued within seven days from the date of the Order, and responses are due within 14 days after service of the request. All depositions must be completed prior to the evidentiary hearing. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/eV4irr from Leagle.com. Jennifer Glass, Kristie Masiella & Tracy Reese, Plaintiffs, represented by Bradley A. Sherman -- bradley@shermanboseman.com -- Sherman Boseman Legal Group & F. Allen Boseman, Jr. -- allen@shermanboseman.com -- Sherman Boseman Legal Group. Tradesmen International, LLC, Defendant, represented by Gerald L. Maatman, Jr. -- gmaatman@seyfarth.com -- Seyfarth Shaw, Jennifer A. Riley -- jriley@seyfarth.com -- Seyfarth Shaw & Christina M. Janice -- cjanice@seyfarth.com -- Seyfarth Shaw. Matthew McClone, Defendant, represented by Vincent T. Norwillo, Law Office of Vincent T. Norwillo. TRANSCARE CORP: Partial Summary Judgment Granted in Ien's Suit -------------------------------------------------------------- In the case, In re: TRANSCARE CORP., et al., Chapter 7, Debtors. SHAMEEKA IEN on behalf of herself and all Others similarly situated, Plaintiff, v. TRANSCARE CORP., TRANSCARE NEW YORK, INC., TRANSCARE ML, INC., TC AMBULANCE GROUP, INC., TRANSCARE MANAGEMENT SERVICES, INC., TCBA AMBULANCE, INC., TC BILLING AND SERVICES CORP., TRANSCARE WESTCHESTER, INC., TRANSCARE MARYLAND, INC., TC AMBULANCE NORTH, INC., TRANSCARE HARFORD COUNTY, INC., LYNN TILTON, ARK II CLO 2001-1 LIMITED, ARK INVESTMENT PARTNERS II, L.P., PATRIARCH PARTNERS, LLC, and PATRIARCH PARTNERS III, LLC, Defendants, Case No. 16-10407 (SMB) (Jointly Administered), Adv. Proc. No. 16-01033 (S.D. N.Y.), Judge Stuart M. Bernstein of the U.S. Bankruptcy Court for the Southern District of New York granted in part and denied in part the Plaintiff's Motion for Partial Summary Judgment dated May 21, 2019. The class action concerns claims under the Worker Adjustment and Retraining Notification Act ("US WARN Act"), and the New York Worker Adjustment and Retraining Notification Act ("NY WARN Act"), New York Labor Law ("NYLL") Section 860 et seq., as well as unpaid wages under various state laws. At all relevant times prior to Feb. 24, 2016, TransCare and its subsidiaries provided ambulance and paratransit transportation services in New York, Pennsylvania, and Maryland. The subsidiaries included TransCare New York, Inc., TransCare ML, Inc., TC Ambulance Group, Inc., TransCare Management Services, Inc., TCBA Ambulance, Inc., TC Billing and Services Corp., TransCare Westchester, Inc., TransCare Maryland, Inc., TransCare Harford County, Inc., and TC Ambulance North, Inc. ("Initial Debtors") and TransCarePennsylvania, Inc., TC Ambulance Corporation, and TC Hudson Valley Ambulance Corp. ("Subsequent Debtors"). Facing financial problems, TransCare and those who controlled it embarked on a restructuring plan. They would terminate the operations of the Initial Debtors and continue the operations of the Subsequent Debtors through the foreclosure of their assets and the assignment of those assets to two new entities: Transcendence Transit, Inc. and Transcendence Transit II, Inc. Under this plan, approximately 700 employees of the Subsequent Debtors would continue to work for Transcendence and it would be business as usual. On Feb. 24, 2016, the Initial Debtors filed for bankruptcy under chapter 7 of the Bankruptcy Code in the Court, and Salvatore LaMonica, Esq. was appointed chapter 7 trustee. Earlier that day, the employees of the Initial Debtors had received an email ("First February 24 Notice") that described the plan just mentioned. After explaining that the paratransit and Pittsburgh and Hudson Valley ambulance businesses would continue to operate through Transcendence and save 700 jobs. The First February 24 Notice was issued by Glen Youngblood, a TransCare vice president, and signed "From the TransCare Management Team" but contained no contact information. Later that same day, after the Initial Debtors had filed their chapter 7 cases, Youngblood drafted an "update" ("Second February 24 Notice") which was apparently sent to all employees and held out the hope of continued employment with the Initial Debtors for an indefinite period. The email was also signed by "The TransCare Management Team" with no other contact information. Although the Second February 24 Notice held out the prospect of continued employment, the Trustee advised the employees the next day to return the vehicles to the garages because the businesses were being shut down. The plan to continue the remaining operations through Transcendence quickly died. On Feb. 26, 2016, the employees of the Subsequent Debtors received the following email authored by Tom Fuchs, Vice President of Transit Services. The February 26 Notice included Fuchs' contact information. The Subsequent Debtors filed chapter 7 petitions in the Court on April 25, 2016. Mr. LaMonica was also appointed chapter 7 trustee in these cases, and all of the cases filed by the Debtor-Defendants have been administratively consolidated. According to her Complaint, the Plaintiff was employed by the Defendants. She alleges that on Feb. 24, 2016, the Debtors and the Non-Debtor Defendants terminated her and other similarly situated employees without advance notice and seeks relief under the WARN Acts and unpaid wages under state law. On Oct. 24, 2016, the Court issued an Order certifying two classes. The WARN Class comprises: All persons who worked at or reported to a Facility of Debtors who (1) were terminated without cause on or about Feb. 24, 2016 or within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of any mass layoff and/or plant closing by Debtors covered by the Worker Adjustment and Retraining Notification (WARN) Act on or about Feb. 24, 2016, and (2) are affected employees within the meaning of 29 U.S.C. Section 2101(a)(5). The WARN Class also contains a New York State WARN Sub-Class that comprises: All persons who worked at or reported to a Facility of Debtors in New York State who (1) were terminated without cause on or about Feb. 24, 2016, or within 30 days of that date, or were terminated without cause as the reasonably foreseeable consequence of any mass layoff and/or plant closing by Debtors covered by the New York State Worker Adjustment and Retraining Notification (NY WARN) Act on or about Feb. 24, 2016, and (2) are affected employees within the meaning of NYLL Section 860-A (1),(4) and (6). The Plaintiff thereafter filed the Motion for Partial Summary Judgment seeking to preclude the Defendants from asserting two statutory defenses to the WARN Acts claims, based on the insufficiency of the February Notices. The Plaintiff contends that the notices sent to the Debtors' employees did not satisfy the requirements of the WARN Acts and, consequently, the Debtor Defendants and Non-Debtor Defendants cannot assert certain statutory defense. The Non-Debtor Defendants opposed the Motion, contending, inter alia, that the February Notices were sufficient. The Trustee filed a limited objection on behalf of the Debtor Defendants. He argued that he was not an employer required to send his own WARN Act notices, but conceded that the Debtors did not send WARN notices that complied with the WARN Acts. Judge Bernstein finds that the NY WARN Act and regulations largely mirror the US WARN Act and regulations. The Plaintiff contends that the NY WARN Act is stricter in several respects, but aside from the 90-day notice requirement, does not identify the stricter provisions. In addition, the Motion relies exclusively on the requirements of the US WARN Act. Accordingly, the Motion will be decided based on the US WARN Act and accompanying regulations. The Defendants' answers include affirmative defenses that incorporate the Exceptions. The Plaintiff seeks to strike those affirmative defenses on the ground that the Defendants failed to give sufficient WARN Act notices. The Motion is granted as against the Debtor Defendants in light of their concession that the Debtors did not send WARN notices in compliance with either the federal or New York WARN Acts. The Non-Debtor Defendants contend that the February Notices were sufficient. The Judge disagrees as to the February 24 Notices but agree as to the February 26 Notice. Reading the February 24 Notices together, Judge Bernstein finds that they failed to provide the type of specific information regarding the first date of separation and the schedule of separations required by 20 C.F.R. Section 639.7(d)(2). The February 24 Notices suffered from other fatal omissions. They did not provide any contact information, and instead, were simply signed by the "The TransCare Management Team." Lastly, the February 24 Notices failed to mention bumping rights, i.e., whether any of the affected employees were entitled to take the place of a soon-to-be Transcendence employee based on seniority or some other criteria. In short, even if the Court could overlook technical deficiencies with A WARN notice, the February 24 Notices failed to apprise the affected employees in understandable language whether they were still working and if so, for how long. In contrast, the February 26 Notice was sufficient, the Court notes. It explained the specific circumstances why the remaining divisions -- the Hudson, Pittsburgh and para-transit companies -- could no longer operate and why shortened notice was being given. The February 26 Notice satisfied the notification requirements under the WARN Acts and regulations. In conclusion, Judge Bernstein granted in part and denied in part the Motion. The Motion is granted to the extent of striking the Debtors' Seventh, Eighth, Tenth, and Eleventh Affirmative Defenses and the Non-Debtors' Tenth, Eleventh, Thirteenth, and Fourteenth Affirmative Defenses with respect to those members of the class affected by the February 24 Notices, but is otherwise denied. The Judge has considered the other arguments made by the parties and concludes that they lack merit or are rendered moot by the disposition of the Motion. A full-text copy of the District Court's Jan. 10, 2020 Memorandum Decision & Order is available at https://is.gd/i6kEqm from Leagle.com. Shameeka Ien, on behalf of herself and all others similarly situated, Plaintiff, represented by Robert N. Fisher -- rfisher@usgs.gov -- Bradley Grombacher LLP, Jack A. Raisner, Raisner Roupinian LLP & Rene S. Roupinian, Raisner Roupinian LLP. Lynn Tilton, Ark Clo 2001-1 Limited, Ark Inestment Partners II, LP., Patriarch Partners, LLC & Patriarch Partners III, LLC, Defendants, represented by Gillian G. Egan -- gegan@proskauer.com -- Proskauer Rose LLP, Nicole A. Eichberger -- neichberger@proskauer.com -- Proskauer Rose LLP, Irena M. Goldstein -- irenagoldstein@paulhastings.com -- Trenk DiPasqaule Della Fera & Sodono, PC & Kathleen M. McKenna -- kmckenna@proskauer.com -- Proskauer Rose LLP. TRANSDIGM GROUP: Ohio Northern District Dismisses Securities Suit ----------------------------------------------------------------- Judge Pamela A. Berker of the U.S. District Court for the Northern District of Ohio granted Defendants TransDigm, W. Nicholas Howley, and Terrance Paradie's Motion to Dismiss for Failure to State a Claim in In re TransDigm Group, Inc. Securities Litigation. This Document Relates To: ALL ACTIONS, Case No. 1:17cv1677 (N.D. Ohio). On Aug. 10, 2017, Plaintiff City of Hollywood Firefighters' Pension Fund filed a Complaint against the Defendants, on behalf of all persons who purchased the securities of TransDigm between May 10, 2016 and Jan. 19, 2017. Shortly thereafter, on Sept. 18, 2017, a second action was filed by the City of Warren Police and Fire Retirement System on behalf of all persons who purchased TransDigm's securities between May 10, 2016 and March 21, 2017. TransDigm is a global designer, producer, and supplier of highly engineered components for use on commercial and military aircraft. The Plaintiffs' Complaints alleged that, during the class periods, TransDigm issued materially false and misleading statements and/or failed to disclose material adverse facts regarding its operations, business, and prospects. Specifically, the Plaintiffs alleged that TransDigm failed to disclose that it used (1) shell distributors that it controlled to make noncompetitive government bids seem competitive, (2) monopolistic tactics to hike the prices of its proprietary products, and (3) a variety of tactics to evade government oversight of its cost structure and avoid government scrutiny. As a consequence, the Plaintiffs asserted that TransDigm's growth and profitability during the class period were artificially inflated and that TransDigm shares traded at artificially inflated prices during the class period. Both actions alleged that the Defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Securities and Exchange Commission Rule 10b-5 during the Class Periods. In October 2017, the Plaintiffs each filed Motions for Consolidation and for Appointment as Lead Plaintiff. On Dec. 5, 2017, then-assigned District Judge Donald Nugent issued a Memorandum Opinion & Order in which he (1) granted the parties' Motions for Consolidation; (2) appointed Plaintiff Hollywood Firefighters as Lead Plaintiff; and (3) approved Hollywood Firefighters' selection of Saxena White P.A. as Lead Counsel for the Class and Climaco Wilcox Peca & Garofoli Co., L.P.A. as Local Counsel. Lead Plaintiff filed a Consolidated Amended Complaint on Feb. 16, 2018. The Defendants thereafter filed a Motion to Dismiss for Failure to State a Claim on May 7, 2018, which the Lead Plaintiff opposed. Judge Nugent conducted a status conference on Aug. 29, 2018, during which the parties presented oral arguments on the pending Motion. Judge Nugent then referred the Motion to Magistrate Judge William Baughman for a Report and Recommendation. On Oct. 18, 2018, Judge Baughman issued an Order in which he strongly encouraged the counsel to discuss the possibility of amending the Complaint. On Oct. 26, 2018, Judge Baughman issued a Report & Recommendation, noting that the parties have met, conferred, and now jointly stipulate to a schedule by which the Plaintiffs may file a second amended complaint, followed by an answer or other response by the Defendants, and then a subsequent reply by the Plaintiffs. Judge Baughman recommended that the Court adopt the parties' proposed schedule, and Judge Nugent agreed. A Second Amended Complaint was filed on Dec. 21, 2018. On March 1, 2019, the parties jointly moved the Court for leave to allow Lead Plaintiff to file a Third Amended Complaint. The basis of this Motion was the fact that, on Feb. 25, 2019, the Department of Defense, Office of Inspector General ("DoD-OIG") released a report regarding TransDigm's pricing and cost practices on parts purchased by the Defense Logistics Agency and the Army. Judge Nugent granted the parties' Joint Motion. The Third Amended Complaint (which is now the operative Complaint in this matter) was filed on March 29, 2019 against TransDigm, W. Nicholas Howley, and Terrance Paradie. Therein, the Plaintiff asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder, on behalf of all investors who purchased or otherwise acquired TransDigm common stock between May 10, 2016 and March 21, 2017. The Defendants filed a Motion to Dismiss for Failure to State a Claim on May 13, 2019. The Plaintiff filed a Brief in Opposition on June 27, 2019, to which the Defendants responded on Aug. 19, 2019. On Dec. 20, 2019, the Defendants filed a Notice of Supplemental Authority, to which the Plaintiff filed a response. The Defendants also moved for oral argument, which motion was denied. On July 5, 2019, the matter was transferred to Judge Berker pursuant to General Order 2019-13. Judge Berker concludes that the Plaintiff has failed to meet its burden in pleading either an actionable misrepresentation or omission, or loss causation. Because the Plaintiff cannot satisfy these elements of its Section 10(b) and Rule 10b-5 claim, Count I of the Third Amended Complaint must be dismissed and a discussion regarding the remaining elements of the Section 10(b) claim is unnecessary. Further, because the Plaintiff has failed to plead a primary violation of the Act to serve as the predicate for Section 20(a) liability, Count II against the individual Defendants Howley and Paradie is also dismissed. Finally, the Plaintiff states (summarily and in a footnote) that if the Court decides in favor of the Defendants, then the Plaintiff respectfully requests leave to amend the Complaint to remedy any pleading deficiencies. The request is denied, rules the Court. The Court held that the Plaintiff has been permitted to amend its complaint on three separate occasions over the course of the action, which has been pending since 2017. The Plaintiff offers no explanation why it should be permitted yet another opportunity to amend at this stage of the proceedings. Accordingly, Judge Berker granted the Defendants' Motion to Dismiss, and denied the Plaintiff's request to seek leave to amend its Third Amended Complaint. A full-text copy of the Court's Feb. 19, 2020 Memorandum Opinion & Order is available at https://is.gd/DJFwCz from Leagle.com. City of Hollywood Firefighters' Pension Fund, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Scott D. Simpkins -- sdsimp@climacolaw.com -- Climaco, Wilcox, Peca, Tarantino & Garofoli, Brandon Grzandziel, Saxena White, Dianne M. Anderson, Saxena White, Joseph E. White, III -- jwhite@saxenawhite.com -- Saxena White, Joshua H. Saltzman, Saxena White, Lester R. Hooker -- lhooker@saxenawhite.com -- Saxena White, Manuel Miranda, Saxena White, Maya Saxena -- msaxena@saxenawhite.com -- Saxena White, Robert D. Klausner, Klausner, Kaufman, Jensen & Levinson, pro hac vice, Steven B. Singer -- ssinger@saxenawhite.com -- Saxena White & Stuart A. Kaufman -- stu@robertdklausner.com -- Klausner Kaufman Jensen & Levinson. City of Warren Police and Fire Retirement System, Individually and on behalf of all others similarly situated, Plaintiff, represented by Tricia L. McCormick -- TriciaM@rgrdlaw.com -- Robbins Geller Rudman & Dowd, Brian E. Cochran -- bcochran@rgrdlaw.com -- Robbins Geller Rudman & Dowd, David C. Walton -- davew@rgrdlaw.com -- Robbins Geller Rudman & Dowd, Drew T. Legando, Landskroner Grieco Merriman, Henry Rosen -- henryr@rgrdlaw.com -- Robbins Geller Rudman & Dowd, pro hac vice & Thomas C. Michaud, Vanoverbeke Michaud & Timmony. TransDigm Group Incorporated, Defendant, represented by James A. Slater, Jr. -- jslater@bakerlaw.com -- Baker & Hostetler. District No. 9, I.A. of M. & A.W. Pension Trust, Movant, represented by Jack Landskroner, Landskroner Grieco Merriman. TREEHOUSE FOODS: Court Certifies Class in MSPERS Suit ----------------------------------------------------- In the case, PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI, INDIVIDUALLY AND ON BEHALF OF ALL SIMILARLY SITUATED, Plaintiff, v. TREEHOUSE FOODS, INC., et al., Defendants, Case No. 16-cv-10632 (N.D. Ill.), Judge Robert M. Dow, Jr. of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted the Lead Plaintiff's motion for class certification. Defendant TreeHouse Foods may be the biggest company you have never heard of. It produces packaged foods for stores' "private labels" -- that is, it makes grocery stores' off-brand products. Lead Plaintiff Public Employees' Retirement System of Mississippi ("MSPERS") is an institutional investor that purchased TreeHouse common stock. As is relevant for the present motion, TreeHouse purchased several smaller food-production companies between 2006 and 2014. In late 2014, TreeHouse purchased Flagstone (another food company), and in 2015, it moved to purchase its largest competitor, Private Brands, from ConAgra. The sale of Private Brands closed in February 2016. During and following the closing on Private Brands, TreeHouse and its officers made a series of statements regarding the integration of Private Brands into the TreeHouse supply and production chain and future growth opportunities. On Nov. 3, 2016, TreeHouse reported that its earnings had fallen below forecasts and that its president, Defendant Christopher Sliva would resign. As a result of these disclosures, the stock price fell $16.87 (nearly 20%). Later that day, after the markets closed, Treehouse acknowledged that Flagstone was underperforming as well, but it is unclear whether the market further fell as a result of that news. The Plaintiff alleges that Treehouse's statements painting a rosy picture of the various acquisitions were fraudulent, and therefore violations of Section 10(b) of the Securities Exchange Act of 1934, and the Securities and Exchange Commission's Rule 10b-5, 17 C.F.R. Section 240.10b-5. The Plaintiff now moves to certify a Plaintiff class consisting of all persons and entities who purchased TreeHouse Foods, Inc. common stock on the open market between Jan. 20, 2016, and Nov. 2, 2016, inclusive, and who were damaged thereby. MSPRS also seeks to be appointed the Class Representative and to have Wolf Popper LLP and Robinson Curley P.C. appointed as the Lead and Liason Counsel for the certified class. In support of its motion, MSPERS has attached an expert report from Chad Coffman opining on the efficiency of the market for TreeHouse stock and the feasibility of computing damages on a class-wide basis. The Defendants have attached a report from their own expert, Dr. Paul Zurek, who opined exclusively on the feasibility of determining damages on a class-wide basis. MSPERS seek to certify as a Rule 23(b)(3) class. The Defendants object on the following grounds: (1) MSPERS is atypical and inadequate because it is subject to unique defenses; (2) MSPERS is otherwise inadequate; and (3) MSPERS's proposed damages model cannot be used to show that class issues predominate. Judge Dow granted MSPERS's motion for class certification. He finds that the putative class meets Rule 23(a) and Rule 23(b) requirements. He finds that (i) the Plaintiff has submitted evidence that the average weekly trading volume of Treehouse shares was 4.02 million, representing over 7% of more than 50 million outstanding shares; (ii) each class member's claim hinges on common factual and legal questions; (iii) MSPERS's claim, based on its presumptive reliance on market price, is typical in that it shares the same essential characteristics as the claims of the class at large; (iv) the class counsel is adequate; and (v) common questions predominate about how to deal with Flagstone notwithstanding the methodological critique. A full-text copy of the Court's Feb. 26, 2020 Memorandum Opinion & Order is available at https://is.gd/uTpfTl from Leagle.com. Annemarie Tarara, Individually and On Behalf of All Others Similarly Situated, Plaintiff, represented by John Scott Monical, Lawrence, Kamin, Saunders & Uhlenhop, Mitchell Benjamin Goldberg -- mgoldberg@lksu.com -- Lawrence, Kamin, Saunders & Uhlenhop & Peter E. Cooper -- pcooper@lksu.com -- Lawrence, Kamin, Saunders & Uhlenhop. Ivan Barenbaum, Plaintiff, represented by John Scott Monical, Lawrence, Kamin, Saunders & Uhlenhop. Public Employees' Retirement System of Mississippi, Plaintiff, represented by Matthew Insley-Pruitt, Wolf Popper LLP, pro hac vice, Alan Francis Curley, Robinson Curley P.C., C. Philip Curley, Robinson Curley P.C., Chet B. Waldman, Wolf Popper, LLP & Robert C. Finkel, Wolf Popper, LLP, pro hac vice. Treehouse Foods, Inc., Sam K Reed, Dennis F. Riordan & Christopher D. Sliva, Defendants, represented by Dan K. Webb, Winston & Strawn LLP, Brian Joseph Nisbet, Winston & Strawn Llp, Elizabeth Sheila Deshaies, Winston & Strawn, James P. Smith, III, Winston & Strawn LLP, pro hac vice, Matthew Robert Carter -- mcarter@winston.com -- Winston & Strawn LLP & Samuel Mack Zuidema -- szuidema@winston.com -- Winston & Strawn Llp. UNITED STATES: Ct. says CBP Can't Hold Detainees More than 48 Hrs. ------------------------------------------------------------------ In the case, Unknown Parties, et al., Plaintiffs, v. Kirstjen M Nielsen, et al., Defendants, Case No. CV-15-00250-TUC-DCB (D. Ariz.), Judge David C. Bury of the U.S. District Court for the District of Arizona granted granted the Plaintiffs' request for a Permanent Injunction. The Plaintiffs filed the action on June 8, 2015, seeking injunctive relief related to alleged inhumane and punitive treatment of civil immigration detainees by Customs and Border Patrol ("CBP") in the Tucson Sector at the Brian A. Terry Station/Naco Station, Casa Grande Station, Douglas Station, Nogales Station, Sonoita Station, Tucson Station, Why/Ajo Station, Willcox Station, and Three Points Station. The Tucson Station and Three Points Station process detainees at the Tucson Coordination Center, which serves as a hub for coordinating the movement of the majority of detainees out of CBP custody. The Plaintiffs charge the Defendants with violating the Due Process Clause of the Fifth Amendment based on alleged deprivations of sleep, of hygienic and sanitary conditions, of adequate medical screening and care, of providing inadequate food and water, and of a lack of warmth in CBP holding cells. The case is a class action lawsuit. Following a seven-day trial, Judge Bury granted the Plaintiffs' request for a Permanent Injunction because CBP's mission is to arrest, process, and turn detainees over to United States Immigration and Customs Enforcement ("ICE"), Office of Enforcement and Removal Operations ("ERO"), the Office of Refugee Resettlement ("ORR"); the United States Marshals Service; or another agency ("OA"), as appropriate. CBP stations and holding facilities are designed within the context of the mission for short-term holds, lasting hours not days. There is no legitimate governmental interest to hold detainees longer than the time needed to complete the mission. The evidence reflects that the extended detentions currently occurring at CBP facilities are, in large part, caused when receiving agencies, including ICE, ERO, ORR, the United States Marshals, and other agencies, are unable, usually due to capacity constraints, to accept CBP transfers. The Plaintiffs, who are civil detainees in CBP holding cells, face conditions of confinement after 12 hours which are substantially worse than detainees face upon commitment to either a civil immigration detention facility or even a criminal detention facility, like a jail or prison. Judge Bury finds that the conditions of detention in CBP holding cells, especially those that preclude sleep over several nights, are presumptively punitive and violate the Constitution. The Defendants have overcome the presumption to a limited extent, and the Judge limits his injunctive relief, accordingly. CBP will be enjoined from holding detainees, who are "processing complete," i.e., meaning the detainee has been processed by CBP and the appropriate receiving agency has been identified, longer than 48 hours from book-in time. Detention may not extend into a third night under the "no longer than 48 hours" rule, unless and until CBP can provide conditions of confinement that meet detainees' basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessment performed by a medical professional. Accordingly, Judge Bury found in favor of the Plaintiffs and against the Defendants. He granted the Plaintiff's request for a permanent injunction. The Clerk of the Court will enter Judgment for the Plaintiffs. CBP will be enjoined from holding detainees, who are "processing complete," "no longer than 48 hours, unless CBP provides conditions of confinement that meet basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessments performed by a medical professional. Within 7 days of the filing date of the Order, the Plaintiffs will file a proposed Order for Permanent Injunction. The Defendants will have seven days, thereafter, to file an Objection. A full-text copy of the Court's Feb. 19, 2020 Order is available at https://is.gd/iQh8yb from Leagle.com. Unknown Parties, named as Jane Doe #1 and Jane Doe #2, on behalf of themselves and all others similarly situated, Plaintiff, represented by Akari Atoyama-Little -- aatoyama@mofo.com -- Morrison & Foerster LLP, pro hac vice, Alvaro M. Huerta, National Immigration Law Center, pro hac vice, Bree Bernwanger -- bbernwanger@lccrsf.org -- Lwyrs Committee Civil Rights SF Bay Area, pro hac vice, Colette Reiner Mayer -- crmayer@mofo.com -- Morrison & Foerster LLP, pro hac vice, Elisa Della-Piana -- edellapiana@lccrsf.org -- Lawyers Committee for Civil Rights, pro hac vice, Jack Williford Londen -- jlonden@mofo.com -- Morrison & Foerster LLP, John Sebastiano Douglass -- jdouglass@mofo.com -- Morrison & Foerster LLP, pro hac vice, Karolina J. Walters, American Immigration Council, pro hac vice, Linton Joaquin, National Immigration Law Center, pro hac vice, Louise Carita Stoupe -- lstoupe@mofo.com -- Morrison & Foerster LLP, Mar Kenney, American Immigration Council, pro hac vice, Megan Sallomi, Lawyers Committee for Civil Rights, pro hac vice, Pieter S. DeGanon -- pdeganon@mofo.com -- Morrison & Foerster LLP, Aleyda Yvette Borja, ACLU & Christine Keeyeh Wee, ACLU. Norlan Flores, on behalf of themselves and all others similarly situated, Plaintiff, represented by Alvaro M. Huerta, National Immigration Law Center, pro hac vice, Bree Bernwanger, Lwyrs Committee Civil Rights SF Bay Area, pro hac vice, Colette Reiner Mayer, Morrison & Foerster LLP, pro hac vice, Elisa Della-Piana, Lawyers Committee for Civil Rights, pro hac vice, John Sebastiano Douglass, Morrison & Foerster LLP, pro hac vice, Karolina J. Walters, American Immigration Council, pro hac vice, Linton Joaquin, National Immigration Law Center, pro hac vice, Louise Carita Stoupe, Morrison & Foerster LLP, Mary Kenney, American Immigration Council, pro hac vice, Megan Sallomi, Lawyers Committee for Civil Rights, pro hac vice, Pieter S. DeGanon, Morrison & Foerster LLP, Aleyda Yvette Borja, ACLU & Christine Keeyeh Wee, ACLU. Carla L Provost, Chief of United States Border Patrol, in her official capacity, Chad Wolf, Acting United States Department of Homeland Security, Mark Morgan, Acting Commissioner, United States Custom and Border Protection & Roy Villareal, Commander, Arizona Joint Field Command and Chief Patrol Agent-Tucson Sector, Defendants, represented by Carlton Frederick Sheffield, US Dept of Justice - Civil Division, Christina Parascandola, US Dept of Justice, Colin Kisor, US Dept of Justice, Katelyn Masetta-Alvarez, US Dept of Justice - Office of Immigration Litigation, Michael Anthony Celone, US Dept of Justice, Sarah B. Fabian, US Dept of Justice & William Charles Silvis, US Department of Justice Civil Division Office of Immigration Litigation. Phoenix Newspapers Incorporated, Intervenor, represented by David Jeremy Bodney -- BODNEYDBALLARDSPAHR.COM -- Ballard Spahr LLP. WELLS FARGO: Claims in Purple Mountain Securities Suit Narrowed --------------------------------------------------------------- In the case, PURPLE MOUNTAIN TRUST, Plaintiff, v. WELLS FARGO & COMPANY, et al., Defendants, Case No. 3:18-cv-03948-JD (N.D. Cal.), Judge James Donato of the U.S. District Court for the Northern District of California (i) granted in part and denied in part the Defendants' motion to dismiss, and (ii) granted the Plaintiff leave to amend. The case is a securities class action against Wells Fargo, its former CEO, Timothy J. Sloan, other officers, and the former chairman of its board of directors, Stephen Sanger. Lead Plaintiff Construction Laborers Pension Trust for Southern California brought suit on behalf of persons who purchased or otherwise acquired Wells Fargo common stock between Nov. 3, 2016, and Aug. 3, 2017, under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Securities and Exchange Commission Rule 10b-5. The gravamen of the consolidated amended complaint is that Wells Fargo made 67 statements during the class period that were false or misleading because they did not disclose known problems with its collateral protection insurance ("CPI") and guaranteed auto protection ("GAP") practices for auto loan customers. As alleged in the consolidated complaint, prior to September 2016, some auto loan customers with Wells Fargo were improperly enrolled in, and forced to pay for, collateral protection insurance they did not need. CPI protects a lender's collateral, the car, if the borrower does not obtain auto insurance. CPI is unnecessary if a borrower has obtained insurance, or when the loan has been paid off. Wells Fargo was aware of issues with its CPI practices by July 2016, senior executives were briefed by September 2016, and the practice was terminated later that month. The company also reported the problem to the Office of the Comptroller of the Currency ("OCC"), during the summer of 2016. There was no public disclosure of Wells Fargo's CPI issue until a July 2017 New York Times article. In a press release issued the same day and in its second quarter filing with the SEC a week later, the company acknowledged that it had been aware of problems with its CPI program for approximately a year. On the dates of these disclosures, the price of Wells Fargo's stock fell. Days after the 10-Q filing, the New York Times published an article reporting that Wells Fargo was under investigation by the Federal Reserve Bank of San Francisco for failing to refund unused portions of guaranteed auto protection premiums. GAP insurance is optional coverage that protects auto lenders against the practical reality that the collateral for an auto loan loses a tremendous amount of value almost immediately -- i.e., when it is driven off the lot. Other insurance only pays up to the market value of the vehicle at the time of an accident or other adverse event. Many states require that unused portions of the GAP premium be paid back to customers if loan repayment is completed early. Wells Fargo moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). All the individual Defendants have joined Wells Fargo's motion. Sanger also filed a short brief regarding the alleged falsity of his statements and lack of scienter. The Defendants say the amended complaint should be dismissed for two main reasons: (1) Wells Fargo had no obligation to disclose its improper auto insurance policies when discussing its ongoing sales practices, or "fake accounts," problem; and (2) statements about the company's commitment to transparency and restoring trust in the wake of that problem are not actionable. After an initial set of briefing and oral argument, the Court called for the Plaintiff to file a chart summarizing its allegations on a statement-by-statement basis and for the Defendants to file an accordingly reorganized supplemental brief. It is the Court's standard practice in securities cases. While the consolidated complaint's non-conclusory allegations are taken as true for the motion to dismiss, the parties disagree about the salient facts. The Plaintiff says that a separate Wells Fargo's sales practices issue, in which bank employees were found to have opened unauthorized accounts for customers, makes certain statements failing to disclose its auto insurance problems during the class period false or misleading. The Defendants deny the relevance of the fake accounts to the case. Statements relating to those improper sales practices were the subject of another securities case in the district, which has settled. A consumer class action relating to the improper CPI policy also settled in the Central District of California. Wells Fargo has entered into consent orders, including fines, relating to its CPI policies with the Consumer Financial Protection Bureau and the OCC. Before reaching the merits of the motion, Judge Donato finds that a constructive comment on the amended complaint is warranted. It is counterproductive, and potentially self-defeating, to feature 67 statements as grounds for relief, particularly when many of the alleged misstatements were duplicative or run-of-the-mill boilerplate. The chart summarizing the allegations on a statement-by-statement basis magnified the problem and imposed an enormous amount of additional and largely unnecessary work on the Court and the Defendants. On this occasion, the Court undertook the herculean effort needed to sort through the mass of allegations, but that will not be the course of action going forward. Depending on developments in response to the Order, the Plaintiff may be required to identify its top five allegations, and proceed on that basis. Judicial economy and efficiency, as well as reasonable constraints on litigation costs, demand no less. The Court holds that the Defendants' arguments warrant dismissal of most of the Plaintiff's claims, but Wells Fargo and Sloan's failure to disclose the auto insurance problems -- specifically, the CPI issue -- when explicitly asked about the lay-of-the-land outside of sales practices is actionable. The heightened pleading requirements under Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act of 1995 ("PSLRA") are met. Accordingly, Judge Donato granted and denied in part the Defendants' motion to dismiss, and the Plaintiff is granted leave to amend. The Plaintiff's Section 10(b) and Rule 10b-5 claims against Wells Fargo and Sloan based on Statements 1 and 13 will go forward. The remaining claims are dismissed. It is clear that information about consumer-related problems outside of Wells Fargo's sales practices issues was material to stockholders. The materiality of the misrepresentation or an omission depends upon whether there is a substantial likelihood that it would have been viewed by the reasonable investor as having significantly altered the total mix of information made available for the purpose of decisionmaking by stockholders concerning their investments. The amended complaint alleges that a participant at a bank analyst conference prompted Sloan to discuss Wells Fargo's review of, as the CEO summarized, activities outside of retail banking focused and reviews focused on sales practices and culture. The fact this question was posed shows that the answer was viewed as altering the total mix of information useful for investment decisions. The Plaintiff were given until the end of January to file a second amended complaint consistent with the Order. No new claims or parties may be added without the Court's prior approval. If the Plaintiff chooses to amend, it should organize all of the challenged statements or omissions in a logical and efficient manner, and should file a revised claims chart with the new complaint. A full-text copy of the District Court's Jan. 10, 2020 Order is available at https://is.gd/A5yQ5V from Leagle.com. Purple Mountain Trust, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by Austin P. Brane, Robbins Geller Rudman Dowd LLP, Dennis J. Herman, Robbins Geller Rudman & Dowd LLP, Jeremy Alan Lieberman, Pomerantz LLP, Kevin Shen Sciarani, Robbins Geller Rudman & Dowd LLP, Lucas F. Olts, Robbins Geller Rudman & Dowd LLP & Peretz Bronstein -- peretz@bgandg.com -- Bronstein Gewirtz & Grossman, LLC. Wells Fargo & Company, Defendant, represented by Sverker Kristoffer Hogberg -- hogbergs@sullcrom.com -- Sullivan & Cromwell LLP, Brendan P. Cullen -- cullenb@sullcrom.com -- Sullivan & Cromwell LLP & Christopher Michael Viapiano -- viapianoc@sullcrom.com -- Sullivan and Cromwell LLP. Timothy J. Sloan, Defendant, represented by Adam F. Shearer, Clarence Dyer & Cohen LLP, Josh Alan Cohen, Clarence Dyer & Cohen LLP & Nanci L. Clarence, Clarence Dyer & Cohen LLP. John Richard Shrewsberry, Defendant, represented by Ismail Jomo Ramsey, Ramsey & Ehrlich LLP, Katharine Ann Kates, Ramsey & Ehrlich LLP & Miles F. Ehrlich, Ramsey & Ehrlich LLP. Stephen Sanger, Defendant, represented by Jordan Eth, Morrison & Foerster LLP & Anna Erickson White, Morrison & Foerster LLP. Mary Mack, Defendant, represented by James N. Kramer, Orrick Herrington & Sutcliffe LLP, Stephanie Albrecht, Orrick Herrington and Sutcliffe LLP, Walter F. Brown, Orrick Herrington & Suutcliffe LLP & Lauren B. Seaton, Orrick Herrington and Sutcliffe. Jyontindra Patel, Movant, represented by Lesley Frank Portnoy, Pomerantz LLP. Construction Laborers Pension Trust for Southern California, Movant, represented by Austin P. Brane, Robbins Geller Rudman Dowd LLP, Dennis J. Herman, Robbins Geller Rudman & Dowd LLP, Kevin Shen Sciarani, Robbins Geller Rudman & Dowd LLP, Lucas F. Olts, Robbins Geller Rudman & Dowd LLP, Scott H. Saham, Robbins Geller Rudman & Dowd LLP, Spencer A. Burkholz, Robbins Geller Rudman & Dowd LLP & David Avi Rosenfeld, Robbins Geller Rudman & Dowd LLP. ********* 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 2020. All rights reserved. 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