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Preview: LexisNexis® Mealey's™ Class Actions Legal News

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Federal Judge Denies Class Certification In Junk Fax Suit Based On Bais Yaakov
CHICAGO - Citing the District of Columbia U.S. Circuit Court of Appeals' ruling in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1083 (D.C. Cir. 2017), an Illinois federal judge on Nov. 3 denied certification to a class of recipients of faxed advertisements, ruling that individualized consent issues prevent certification (Alpha Tech Pet Inc., et al. v. LaGasse, LLC, et al., No. 16-513, N.D. Ill., 2017 U.S. Dist. LEXIS 182499).



Federal Judge Partially Certifies Class Alleging Deficient Credit Monitoring
PHILADELPHIA - A Pennsylvania federal judge on Nov. 13 partially certified a class of consumers suing a retailer and the company that issues the retailer's private-label credit cards for allegedly profiting from a deficient credit-monitoring service, finding that certification is appropriate for class members subject to Delaware law, but not for those subject to Virginia law (Jennifer Underwood, et al. v. Kohl's Department Stores, Inc., et al., No. 15-730, E.D. Pa., 2017 U.S. Dist. LEXIS 186927).



California Federal Judge: Collective, Class Certification Motions Should Both Be Filed
SAN FRANCISCO - A California federal judge on Nov. 10 held in abeyance a motion for collective certification under the Fair Labor Standards Act (FLSA) filed by a property appraiser alleging that he and others have been misclassified and denied overtime wages and ruled that the plaintiff may renew his motion when he files for class certification of his state law claims (Som Swamy, et al. v. Title Source, Inc., No. 17-1175, N.D. Calif., 2017 U.S. Dist. LEXIS 186535).



Louisiana Court Affirms Certification Of Balance Billing Class Action
LAKE CHARLES, La. - The fact that an insurer compensated an insured for some out-of-pocket expenses allegedly caused by a hospital's illegal balance billing practice does not defeat class typicality requirements, a Louisiana appeals court held Nov. 2 in affirming certification of the class (Aaron Emigh, et al. v. West Calcasieu Cameron Hospital, et al., No. 17-292, La. App., 3rd Cir.).



Residents: Company's Sur-Reply To Fracking Class Should Be Denied
COLUMBUS, Ohio - A group of leaseholders in Ohio who contend that hydraulic fracturing companies "systematically" violated their leases and underpaid royalties, filed a brief in Ohio federal court on Nov. 3, contending that the defendants' motion seeking leave to file a sur-reply in opposition to their motion for class certification should be denied (Zehentbauer Family Land LP v. Chesapeake Exploration LLC, et al., No. 15-02449, N.D. Ohio).



Judge Extends Deadline On Class Certification Motion To Allow Discovery Completion
PHILADELPHIA - In a dispute over an alleged kickback insurance premium scheme involving insurers, reinsurers and lenders, a Pennsylvania federal judge on Nov. 9 granted a joint stipulation and order to extend deadlines pertaining to a class certification motion to allow homeowners to complete relevant discovery and document production (Nelson White Jr., et al. v. The PNC Financial Services Group Inc., et al., No. 11-7928, E.D. Pa., 2017 U.S. Dist. LEXIS 135743).



Federal Claims Judge Stops Class Certification In Klamath Water Takings Case
WASHINGTON, D.C. - A federal claims court judge on Oct. 23 instructed parties in a federal takings case to stop work on the class certification process after she entered judgment for the United States (Lonny E. Baley, et al. v. United States, No. 01-591, Fed. Clms.).



Florida Appellate Panel Reserves Certification In Suit Over Florida Tolls
TALLAHASSEE, Fla. - A Florida trial court abused its discretion when it expanded the definition of two out of four subclasses proposed in a lawsuit over Florida highway tolls beyond what the lead plaintiff initially proposed, a Florida First District Court of Appeal panel ruled Nov. 6 (Florida Department of Transportation, et al. v. Tropical Trailer Leasing, LLC, et al., No. 1D16-4586, Fla. App., 1st Dist., 2017 Fla. App. LEXIS 16153).



Attorney Fees Denied For Objector In Southwest Voucher Suit
CHICAGO - An Illinois federal judge on Nov. 13 denied a motion for attorney fees filed by a class member who filed an objection following a settlement in a lawsuit against Southwest Airlines Co. after it stopped honoring drink vouchers, ruling that any order would undo the settlement that has already been approved by a district court and the Seventh Circuit U.S. Court of Appeals (In Re: Southwest Airlines Voucher Litigation, No. 11-8176, N.D. Ill., 2017 U.S. Dist. LEXIS 186937).



Illinois Federal Judge Transfers Suit Over Honda's Soy-Covered Wiring To California
CHICAGO - A class complaint accusing American Honda Motor Co. Inc. of warranty violations for failing to cover the cost to replace wiring covered in a soy-based product that was allegedly eaten by rodents belongs in California based primarily on the interest of justice, an Illinois federal judge ruled Nov. 2, granting a motion to transfer filed by the defendant (Michael Preston, et al. v. American Honda Motor Company, Inc., No. 17-3549, N.D. Ill., 2017 U.S. Dist. LEXIS 181635).



California Judge Keeps T-Mobile Tech's On-Call Wages Suit In Federal Court
OAKLAND, Calif. - Even conservative estimates put the amount in controversy in a wage-and-hour class complaint filed by a mobile phone company technician above the Class Action Fairness Act's (CAFA) $5 million threshold, a California federal judge ruled Nov. 2, denying the technician's motion to remand (Jesse Black v. T-Mobile USA, Inc., No. 17-4151, N.D. Calif., 2017 U.S. Dist. LEXIS 182109).



6th Circuit: No CAFA Minimal Diversity In Pet Food Class Lawsuit
CINCINNATI - A pet food maker incorporated in Delaware and headquartered in Tennessee failed to demonstrate minimal diversity required under the Class Action Fairness Act (CAFA) in a class complaint brought on behalf of a Tennessee class, an Ohio federal judge ruled Nov. 2, opining that nothing in CAFA changes the rule established in 28 U.S. Code Section 1332(c)(1) that a corporation is a citizen of its state of incorporation and its principal place of business (Randy Roberts v. Mars Petcare US, Inc., No. 17-6122, 6th Cir., 2017 U.S. Dist. LEXIS 21926).



3rd Circuit Rules Mary Kay Consultant Class Must File Wage Claims In Texas
PHILADELPHIA - A Third Circuit U.S. Court of Appeals on Oct. 19 ruled that Texas law stipulates that a class complaint accusing Mary Kay Inc. of misclassifying its consultants belongs in Texas state court, not New Jersey federal court, pursuant to the forum selection clauses in agreements between the company and its consultants (Ina M. Collins, et al. v. Mary Kay, Inc., et al., No. 16-3178, 3rd Cir., 2017 U.S. App. LEXIS 20465).



MassMutual Settles Class Suit Over Unreleased Dividends For $37.5 Million
BOSTON - A Massachusetts federal judge on Nov. 8 granted final approval to a $37.5 million settlement to be paid by Massachusetts Mutual Life Insurance Co. (MassMutual) to end a class complaint by policyholders alleging that the insurance company failed to fully distribute dividends (Karen L. Bacchi v. Massachusetts Mutual Life Insurance Company, No. 12-11280, D. Mass., 2017 U.S. Dist. LEXIS 184926).



Preliminary Approval Of UNC Settlement Granted In Wage Suppression Class Suit
DURHAM, N.C. - A North Carolina federal judge set the final hearing for approval of a partial settlement by the University of North Carolina (UNC) of antitrust class claims against UNC and Duke University for Jan. 4, 2018 (Danielle Seaman, et al. v. Duke University, et al., No. 15-462, M.D. N.C.).



All But 1 Claim Survive Volvo Dismissal Motion In Suit Over Electric Mileage
CHICAGO - An Illinois federal judge on Nov. 8 trimmed a single claim from a class complaint accusing Volvo Cars of North America LLC (VCNA) and Volvo Cars USA LLC (VCUSA) of misrepresenting the average mileage its hybrid sport utility vehicle could achieve on a single charge, finding that most of the claims that had previously been dismissed based on mootness and then reinstated by the Seventh Circuit U.S. Court of Appeals survived the defendant's alternative motion to dismiss for failure to state a claim (Xavier Laurens, et al. v. Volvo Cars of North America, LLC, et al., No. 16-4507, N.D. Ill., 2017 U.S. Dist. LEXIS 184992).



Class Suit Over Labeling, Source Of Latex For Condoms Survives Dismissal Bid
SAN DIEGO - A plaintiff's failure to allege exactly what percentage of latex used in Trojan brand condoms is sourced outside the United States does not doom his class complaint alleging that the packaging stating the items are "Made in U.S.A." violates California law, a California federal judge ruled Nov. 13, finding that the plaintiff only needs to credibly allege that the amount coming from outside the United States is greater than 10 percent (Kenrick Claiborne v. Church & Dwight Co., Inc., No. 17-746, S.D. Calif., 2017 U.S. Dist. LEXIS 187343).



Consent Dooms Text Message Class Suit Against Abercrombie
ANN ARBOR, Mich. - Express consent from the lead named plaintiff in a Telephone Consumer Protection Act (TCPA) lawsuit to receive up to 10 marketing text messages per month bars her class complaint against Abercrombie & Fitch Co. and Abercrombie & Fitch Stores Inc. (collectively, A&F), a Michigan federal judge ruled Nov. 13 (Melissa N. Thomas v. Abercrombie & Fitch Stores, Inc., et al., No. 16-11467, E.D. Mich., 2017 U.S. Dist. LEXIS 186945).



Remanded Nickelodeon Privacy Class Action Dismissed With Prejudice
NEWARK, N.J. - Viacom Inc. and the remaining plaintiffs in a putative privacy class action jointly filed a stipulation in New Jersey federal court on Nov. 3, seeking final dismissal of a mostly dismissed suit alleging improper tracking of minor users of the Nickelodeon network's website (In Re: Nickelodeon Consumer Privacy Litigation, No. 2:12-cv-07829, D. N.J.).



Plaintiffs Say VTech Data Breach Revealed Products' Diminished Value
CHICAGO - Stressing that the claims in their amended complaint center on a benefit of the bargain damages theory, the plaintiffs in a putative class action filed in the wake of a 2015 data breach experienced by VTech Electronics North America LLC oppose the firm's dismissal motion in a Nov. 9 brief in Illinois federal court, arguing that the breach revealed VTech's failure to provide a promised kid-safe environment (In re VTech Data Breach Litigation, No. 1:15-cv-10889, N.D. Ill.).



J. Crew To 3rd Circuit: Credit Card Receipt Suit Alleges No FACTA Violation
PHILADELPHIA - In a Nov. 1 brief to the Third Circuit U.S. Court of Appeals, J. Crew Group Inc. says that a putative class action alleging violation of the Fair and Accurate Credit Transactions Act (FACTA), due to credit card numbers on retail receipts, was properly dismissed for failure to plead a concrete injury or to establish willfulness (Ahmed Kamal v. J. Crew Group Inc., et al., No. 17-2345 and 17-2453, 3rd Cir.).



Claims In Securities Suit Against Cemetery Company, Others Dismissed
PHILADELPHIA - The lead plaintiff in a securities class action lawsuit against a funeral and cemetery services provider and others has failed to show that the defendants issued material misrepresentations or omissions in an attempt to conceal the company's poor financial condition in violation of federal securities laws, a federal judge in Pennsylvania ruled Oct. 31 in granting the defendants' motion to dismiss (Judson Anderson, et al. v. StonMor Partners L.P., No. 16-6111, E.D. Pa., 2017 U.S. Dist. LEXIS 179959).



Shareholder's Failure To Plead Scienter Leads To Dismissal Of Securities Claims
BOSTON - A shareholder has failed to plead scienter in making her federal securities law claims against a clinical laboratory services provider and its CEO for their alleged role in concealing an illegal monopoly scheme with the provider's Brazilian affiliate, a federal judge in Massachusetts ruled Nov. 7 in granting the defendants' motion to dismiss (In re Psychemedics Corp. Securities Litigation, No. 17-10186, D. Mass., 2017 U.S. Dist. LEXIS 183955).



2nd Circuit Affirms Dismissal Of Suit Over Weight Watchers Site 'Glitches'
NEW YORK - In a Nov. 2 summary order, a Second Circuit U.S. Court of Appeals panel found that a breach of contract claim over problems with the website and app of Weight Watchers International Inc. failed because the site was offered on an "as is" basis, affirming a trial court's dismissal of a putative class action (Raymond M. Roberts v. Weight Watchers International Inc., No. 16-3865, 2nd Cir., 2017 U.S. App. LEXIS 21874).



High Court Sets Argument Time In Appeal Of Securities Class Action Ruling
WASHINGTON, D.C. - The U.S. Supreme Court on Nov. 6 issued an order granting in part a motion filed by U.S. Solicitor General Noel J. Francisco to participate in oral arguments as amicus curiae in an appeal of a California Superior Court ruling that shareholders in a securities class action are not preempted from bringing their claims under the Securities Act of 1933 by the Securities Litigation Uniform Standards Act (SLUSA) because the provisions of SLUSA divest state courts of jurisdiction over Securities Act claims (Cyan Inc. v. Beaver County Employees Retirement Fund, et al., No. 15-1439, U.S. Sup.).



TGI Friday's Granted Summary Judgment In Tip Credit, Tip Pool Class Suit
PHILADELPHIA - A Pennsylvania federal judge on Nov. 2 granted a summary judgment motion filed by TGI Friday's Inc. in a class complaint brought by a former server who worked in two different locations and alleged that the restaurant improperly took a tip credit from servers without notification and, in a New Hampshire location, forced servers to participate in a tip pool (Adam Calabrese, et al. v. TGI Friday's Inc., et al., No. 16-868, E.D. Pa., 2017 U.S. Dist. LEXIS 181598).



Arbitration Ordered In Class Suit Over Faulty Live Stream Of Mayweather Fight
NEW YORK - A class complaint alleging that the live stream of an August boxing match suffered from technical failures and caused pay-per-view viewers to miss large portions of the fight was stayed Nov. 7 by a New York federal judge, who ordered the matter to arbitration (Victor Mallh, et al. v. Showtime Networks Inc., No. 17-6549, S.D. N.Y., 2017 U.S. Dist. LEXIS 184471).



Judge Sets Discovery Completion Date In Medicare Treatment Class Suit
NEW HAVEN, Conn. - Discovery in a class complaint accusing the U.S. secretary of Health and Human Services of violating the rights of Medicare beneficiaries by placing them on "observation status" rather than admitting then as "inpatients" in order to pay lower rates must be completed, not propounded, by June 15, a Connecticut federal judge ordered on Oct. 31 (Christina Alexander, et al. v. Thomas E. Price, No. 11-1703, D. Conn.).



Class Suit Seeks Damages From Weinstein Co., Harvey Weinstein For Harassment
LOS ANGELES - A class complaint filed Nov. 15 in a California federal court by a plaintiff referred to only as Jane Doe 1 seeks damages from The Weinstein Company Holdings LLC (TWC), Miramax LLC, Harvey Weinstein and unnamed John Does for Harvey Weinstein's alleged widespread sexual harassment and rape of women in the film and television industry (Jane Doe 1, et al. v. The Weinstein Company Holdings, LLC, et al., No. 17-8323, C.D. Calif.).



Uber Hit With Class Suit For Alleged Harassment, Assaults By Drivers
SAN FRANCISCO - Uber Technologies Inc. has failed to perform adequate background checks on its drivers prior to hiring and has failed to monitor them after hiring, resulting in passengers - primarily females - suffering sexual harassment and assaults, two unnamed Jane Does allege in a Nov. 14 class complaint filed in a California federal court alleging violations of the Unfair Fraudulent and Unfair Business Practices Act and the Consumer Legal Remedies Act (CLRA) (Jane Doe 1, et al. v. Uber Technologies, Inc., No. 17-6571, N.D. Calif.).



Tesla Concealed Inadequate Inventory For Model 3 Sedan, Investors Argue
SAN FRANCISCO - High-performance electric vehicles manufacturer Tesla Inc. and certain of its current and former executive officers misled investors about certain production issues with the company's new Model 3 sedan that were causing a slowdown in production in violation of federal securities laws, an investor argues in an Oct. 10 securities class action complaint filed in California federal court (Gregory Wochos v. Tesla Inc., et al., No. 17-5828, N.D. Calif.).



Product Labeling, Faulty Cars, Other Complaints Hit Courts
Recent class action lawsuits filed in federal and state courts across the country include complaints alleging false labeling claims, defective transmissions, debt collection violations, excessive fees and failure to turn over security deposit interest.



11th Circuit: Motion To Intervene Should Be Granted In TCPA Suit
ATLANTA - An 11th Circuit U.S. Court of Appeals panel on Oct. 26 reversed a trial court's refusal to allow plaintiffs in one unsolicited fax class suit to intervene in a second nearly identical suit filed several years later and settled for tens of million less than the intervenors were looking to recover (Technology Training Associates, Inc., et al. v. Buccaneers Limited Partnership, No. 17-11710, 11th Cir., 2017 U.S. App. LEXIS 21205).



Settlement Of Employees' Suit Over Seagate Phishing Event Preliminarily Approved
SAN FRANCISCO - In an Oct. 19 ruling, a California federal judge granted a motion by a group of Seagate Technology LLC employees to preliminarily approve an agreement settling contract and negligence claims against the company stemming from a 2016 phishing incident that exposed the personally identifiable information (PII) of thousands of employees (Everett Castillo, et al. v. Seagate Technology LLC, No. 3:16-cv-01958, N.D. Calif.).



Lumber Liquidators Announces MOU To Settle Formaldehyde Flooring Suit
ALEXANDRIA, Va. - Lumber Liquidators Inc. announced Oct. 24 that it entered into a memorandum of understanding (MOU) to settle litigation related to Chinese-manufactured laminate flooring that allegedly emits excessive levels of formaldehyde (In re: Lumber Liquidators Chinese-Manufactured Flooring Products Marketing, Sales Practices and Products Liability Litigation, MDL 2627, Case No. 15-md-2627).



Ford Transmission Settlement Receives Final Approval
LOS ANGELES - A California federal judge on Oct. 18 granted final approval to a settlement reached between Ford Motor Co. and current and former owners and lessees of certain years of Fiesta and Focus to a cash payment or a repurchase of their vehicle equipped with allegedly faulty transmissions and ordered Ford to pay more than $8.5 million in attorney fees (Omar Vargas, et al. v. Ford Motor Company, No. 12-8388, C.D. Calif., 2017 U.S. Dist. LEXIS 177145).



Final Approval Granted To Class Action Over University Records Theft
ROME, Ga. - Five months after granting preliminary approval of the settlement of a class action over the theft of student records that a group of alumni said exposed their personally identifiable information (PII), a Georgia federal judge on Oct. 17 granted final approval of the parties' agreement that establishes a $175,000 settlement fund for affected students (Erin Bishop, et al. v. Shorter University Inc., No. 4:15-cv-00033, N.D. Ga.).



Ashley Madison Users Seek Approval Of $11.2 Million Data Breach Suit Settlement
ST. LOUIS - A group of plaintiffs, comprising users of the adult dating site Ashley Madison, filed a motion in Missouri federal court Oct. 20 seeking final approval of an $11.2 million class action settlement with the site's operators over a 2015 data breach that compromised the personally identifiable information (PII) of millions of the site's users (In re Ashley Madison Customer Data Security Breach Litigation, No. 4:15-cv-02669, E.D. Mo.).



Neiman Marcus, Class Defend $1.2 Million Data Breach Suit Settlement
CHICAGO - Neiman Marcus Group LLC and the lead plaintiffs in a class action over a 2013 breach of the retailer's network each filed responses Oct. 19 in Illinois federal court to two objections to a preliminarily approved $1.2 million settlement of the suit, arguing that the agreement adequately and fairly provides relief and compensation to affected customers (Hilary Remijas, et al. v. Neiman Marcus Group LLC, No. 1:14-cv-01735, N.D. Ill.).



9th Circuit Vacates Remand Of Recorded Calls Suit Based On Incomplete Class
PASADENA, Calif. - A district court erred when it remanded a class suit over phone calls that were allegedly recorded without permission based on the Class Action Fairness Act's (CAFA) home-state exception as the decision was based on the analysis of an incomplete class, a Ninth Circuit U.S. Court of Appeals panel ruled Oct. 20 (Tiffany Brinkley, et al. v. Monterey Financial Services, Inc., et al., No. 17-56335, 9th Cir., 2017 U.S. App. LEXIS 20668).



California Federal Judge Denies Remand In Cell Phone Use Reimbursement Class Suit
OAKLAND, Calif. - A California federal judge, in a case three times removed and twice remanded, ruled Oct. 19 to keep in federal court the class complaint accusing an employer of requiring employees to use their personal cell phones without reimbursement (Marley Castro, et al. v. ABM Industries, Inc., et al., No. 17-3026, N.D. Calif., 2017 U.S. Dist. LEXIS 173502).



California Federal Judge: Class Claims For Overtime, Missed Breaks Exceed $5M
LOS ANGELES - A California federal judge on Oct. 26 denied a request by the lead named plaintiff in a wage-and-hour class complaint to send the case back to state court, opining that the employer successfully showed that the overtime wages claim combined with the claims of missed meal and rest periods exceed the Class Action Fairness Act's (CAFA) $5 million threshold (Tinamarie Fatiah Al-Najjar v. Kindred Healthcare Operating, Inc., et al., No. 17-6166, C.D. Calif., 2017 U.S. Dist. LEXIS 178462).



Pennsylvania Federal Judge Remands Mortgage Insurance Overcharges Class Complaint
PHILADELPHIA - A Pennsylvania federal judge on Oct. 25 sent a class complaint accusing Santander Bank N.A. of overcharging Pennsylvania residents for private mortgage insurance back to state court, finding it implausible that the class could recover more than $5 million (Drew Kalberg, et al. v. Santander Bank, N.A., No. 17-3561, E.D. Pa., 2017 U.S. Dist. LEXIS 176557).



Insurer Fails To Establish Federal Jurisdiction In Suit Challenging Its Practices
SEATTLE - Granting an insured's motion to remand its class action lawsuit challenging an insurer's practices involving personal injury protection (PIP) coverage, a Washington federal judge on Oct. 26 found that the insurer failed to establish the existence of federal question, diversity or supplemental jurisdiction (Stan Schiff v. Liberty Mutual Fire Insurance Co., et al., No. 17-914, W.D. Wash., 2017 U.S. Dist. LEXIS 177762).



Judge Transfers Claims Related To Allegedly Defective Pressure Cooker
FRESNO, Calif. - A California federal judge on Oct. 30 granted a joint motion by a purchaser and maker of an allegedly defective pressure cooker to transfer class action claims for violation of California's unfair competition law (UCL) and breach of warranty to be consolidated with another action in an Ohio federal court, finding that both cases have been settled and should be combined to promote the efficient administration of justice (Edwina Pinon v. Tristar Products Inc., et al., No. 1:16-cv-00331, E.D. Calif., 2017 U.S. Dist. LEXIS 179566).



9th Circuit Reinstates Class Claims, Injunction Request Over Flushable Wipes
SAN FRANCISCO - A Ninth Circuit U.S. Court of Appeals panel majority on Oct. 20 reversed a dismissal of a class complaint accusing Kimberly-Clark Corp. of falsely marketing their flushable wipes, finding that the lead plaintiff adequately alleged that the defendant's use of the word "flushable" was false and that the plaintiff did not need to allege damage to her plumbing or pipes because economic injury due to paying a premium for a falsely advertised product was sufficient harm under California law (Jennifer Davidson, et al. v. Kimberly-Clark Corporation, et al., No. 15-16173, 9th Cir., 2017 U.S. App. LEXIS 20670).



Gun Importer's Counterclaim In Misfiring Class Suit Survives Dismissal Motion
MIAMI - A Florida federal magistrate judge on Oct. 25 declined to dismiss a counterclaim filed by a gun importer facing a class complaint alleging that its .357 revolvers are defective and can misfire, finding that the defendant has met its requirement of showing that the lead named plaintiff may be liable for contributory fault in the misfiring of her gun (Suzanne M. Bedwell, et al. v. Braztech International, L.C., No. 17-22335, S.D. Fla., 2017 U.S. Dist. LEXIS 176718).



6th Circuit Revives Residents' Class Action Over Oil Company's Emissions
DETROIT - A class action brought by residents who claim a nearby oil company's emissions are contaminating their properties was revived by a Sixth Circuit U.S. Court of Appeals panel on Oct. 26 after it found that the plaintiffs' claims are timely because the allegedly harmful emissions have continued to occur within the last three years (Gregory Cole, et al. v. Marathon Oil Corporation, et al., No. 16-2660, 6th Cir.)



Federal Magistrate Judge Trims Class Claims In Skincare 'Natural' Labeling Suit
SAN FRANCISCO - A California federal judge on Oct. 23 trimmed claims in the lawsuit accusing a skincare manufacturer of labeling its products as all natural when they actually contain synthetic ingredients to include only those products with labels that claim the products are "100% natural" (Andrew Gasser, et al. v. Kiss My Face, LLC, No. 17-1675, N.D. Calif., 2017 U.S. Dist. LEXIS 175273).



Applicant's Suit Against Starbucks For FCRA Violations Survives Dismissal Motion
SEATTLE - A class complaint accusing a coffee chain of violating the Fair Credit Reporting Act (FCRA) by revoking employment offers made to job applicants with negative results on their background checks before providing applicants with a copy of the checks and a description of their rights may proceed after a Washington federal judge on Oct. 25 denied the defendant's motion to dismiss (Jonathan Santiago Rosario v. Starbucks Corporation, No. 16-1951, W.D. Wash., 2017 U.S. Dist. LEXIS 177159).



9th Circuit: Consumer Failed To Show 'Compare At' Prices Were Deceptive
PASADENA, Calif. - A Ninth Circuit U.S. Court of Appeals panel on Oct. 19 affirmed the dismissal of a class complaint accusing a shoe retailer of deceiving customers by listing "compare at" prices on its products, finding that the tags were not shown to be false (Marilyn Sperling, et al. v. DSWC, Inc., et al., No. 16-55231, 9th Cir., 2017 U.S. App. LEXIS 20568).



Plaintiffs Will Ask 7th Circuit To Review Dismissal Of Dimensional Lumber Suit
CHICAGO - Two men who initiated a class action lawsuit against a home improvement store claiming that the company falsely advertised the size of dimensional lumber on Oct. 30 filed a notice of appeal in Illinois federal court stating that they intend to appeal a Sept. 29 ruling dismissing their suit (Michael Fuchs, et al. v. Menard, Inc., No. 17-01752, N.D. Ill.).



Employees Say Hospital Had A Duty To Safeguard Electronically Stored Info
PITTSBURGH - In an Oct. 24 brief, a group of hospital employees ask the Pennsylvania Supreme Court to find that employers have a duty to safeguard electronically stored information (ESI) containing employees' personally identifiable information (PII) from hackers, seeking revival of their class claims for negligence and breach of contract (Barbara A. Dittman, et al. v. UPMC, et al., No. 43 WAP 2017, Pa. Sup.).



Class Suit Over Ford Plan Fees Dismissed; Limited Leave To Replead Granted
DETROIT - A Michigan federal judge on Oct. 19 dismissed a class complaint accusing Xerox HR Solutions LLC of allowing excessive fees to be charged on the accounts of participants in three Ford Motor Co. retirement plans in violation of its fiduciary duty under the Employee Retirement Security Act, finding that the plaintiffs failed to carry their burden under Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (Patrick Chendes, et al. v. Xerox HR Solutions, LLC, No. 16-13980, E.D. Mich., 2017 U.S. Dist. LEXIS 172997).



VW Franchise Dealers' Claims Over Defeat Devices Survive Dismissal Motion
SAN FRANCISCO - A U.S. District Court for the Northern District of California judge on Oct. 30 denied a motion by Bosch GmbH and Bosch LLC (collectively, Bosch) to dismiss a second amended class complaint filed by Volkswagen-branded franchise dealers who accuse Bosch of conspiring with Volkswagen AG and related entitled to develop and use defeat devices in Volkswagen's "clean diesel" vehicles to evade United States emission standards (In re: Volkswagen "Clean Diesel" Marketing, Sales Practices and Products Liability Litigation, No. 15-2672, N.D. Calif., 2017 U.S. Dist. LEXIS 179652).



Federal Judge Dismisses Fraud Claims Against Tax Prep Franchisor, Subsidiary
LOS ANGELES - A consumer who claims that a tax preparation company, its franchisee and other entities manipulated tax returns and submitted them to the Internal Revenue Service without tax payers' consent failed to sufficiently plead agency or fraud by the franchisor and its subsidiary, a California federal judge ruled Oct. 19, granting the plaintiff leave to amend (Luis Lomeli, et al. v. Jackson Hewitt, Inc., et al., No. 17-2899, C.D. Calif., 2017 U.S. Dist. LEXIS 174451).



Securities Claims Against Drug Maker Dismissed For Failure To Plead Scienter
SEATTLE - The lead plaintiff in a securities class action against a developmental stage biopharmaceutical company and certain of its executive officers has shown that the defendants misrepresented the success and prospects for the company's cancer treatment drug in violation of federal securities laws but has failed to show that the defendants acted with the requisite scienter, a federal judge in Washington ruled Oct. 18 in granting the defendants' motion to dismiss without prejudice (Samit Patel v. Seattle Genetics Inc., et al., No. 17-41, W.D. Wash., 2017 U.S. Dist. LEXIS 172588).



District Court's Dismissal Of Market Manipulation Claims In Securities Suit Upheld
PHILADELPHIA - An investor failed to plead actual or presumed reliance in making his market manipulation claims against the Philadelphia Stock Exchange and certain market participants in violation of federal securities laws, and a federal district court did not err in dismissing as a result, a Third Circuit U.S. Court of Appeals panel ruled Oct. 25 in affirming (I. Stephen Rabin v. NASDAQ OMX PHLX LLC, et al., No. 16-2511, 3rd Cir., 2017 U.S. App. LEXIS 21093).



Cordis IVC Filter Plaintiffs Tell Supreme Court Trial Proposal Is No 'Mass Action'
WASHINGTON, D.C. - Plaintiffs in an inferior vena cava (IVC) filter case on Oct. 18 told the U.S. Supreme Court that their suggestion of individual bellwether trials does not convert their actions into a mass action under the Class Action Fairness Act (CAFA), 119 Stat. 4 (Cordis Corporation v. Jerry Dunson, et al., No. 17-257, U.S. Sup., 2017 U.S. S. Ct. Briefs LEXIS 4013).



D.C. Federal Judge Certifies Class Of Enlisted Noncitizens Suing Over Delays
WASHINGTON, D.C. - A District of Columbia federal judge on Oct. 27 certified a class of enlisted people who are not yet citizens of the United States and are suing the U.S. Department of Homeland Security (DHS), the U.S. Department of Defense (DOD), the U.S. Citizen and Immigration Service (USCIS) and government officials for delaying their shipment to basic training or active-duty service until after the DOD's completion of enhanced security screening (Kusuma Nio, et al. v. United States Department of Homeland Security, et al., No. 17-998, D. D.C., 2017 U.S. Dist. LEXIS 178200).



New York Federal Judge Refuses To Strike Unaccepted Judgment Offer
NEW YORK - A New York federal judge on Oct. 30 denied a motion to strike an unaccepted offer of judgment filed by the lead plaintiffs suing New York City for seizing their food carts, opining that since there is not yet a certified class, offers of judgment on the lead plaintiffs' individual claims are appropriate (Sanwar Ahmed, et al. v. City of New York, et al., No. 17-3044, S.D. N.Y., 2017 U.S. Dist. LEXIS 179531).



Maryland Federal Judge Finds Exotic Dancers Employees Under FLSA
BALTIMORE - A Maryland federal judge on Oct. 27 issued an opinion addressing five motions and held, in part, that a class of exotic dancers suing for wage violations were employees under the Fair Labor Standards Act (FLSA) but had not yet proven a violation of the federal law (Maurlanna Braxton, et al. v. Eldorado Lounge, Inc., et al., No. ELH-15-3661, D. Md., 2017 U.S. Dist. LEXIS 178517).



LuLaRoe Consultants Seek $1B For RICO, UCL Class Claims
RIVERSIDE, Calif. - Three women who signed on to be consultants with LuLaRoe LLC and sell the company's leggings and other clothing products claim that they unknowingly were recruited into a pyramid scheme and filed a class complaint on Oct. 23 in a California federal court seeking $1 billion on multiple claims, including violations of the Racketeer Influenced and Corrupt Organizations Act and California's unfair competition law (Aki Berry, et al. v. LuLaRoe, LLC, et al., No. 17-2176, C.D. Calif.).



Survivors Of Las Vegas Shooting File Class Suit Against Shooter's Estate, Hotel
LOS ANGELES - Ten survivors of the mass shooting during a country music concert filed a putative class suit on Oct. 17 against the shooter's estate, the hotel the shooter stayed in and the company that managed and promoted the festival (Michelle Spencer, et al. v. Stephen Paddock, et al., No. BC680065, Calif. Super., Los Angeles Co.).



Amended Complaint In Flint Water Crisis Seeks Unnamed Amount Of Punitive Damages
DETROIT - A class of plaintiffs who sued Michigan Gov. Rick Snyder, members of his administration, state environmental workers, and other parties associated with the lead-contaminated water crisis in Flint, Mich., on Oct. 27 filed an amended complaint in Michigan federal court seeking an unspecified amount of punitive damages for allegedly exacerbating the crisis (In re Flint Water Cases [Luke Waid, et al. v. Richard D. Snyder, et al.], No. 16-10444, E.D. Mich.).



Wage-And-Hour, Debt Collection, Other Complaints Hit Courts
Recent class action lawsuits filed in federal and state courts across the country include complaints alleging wage-and-hour violations, calls violating the Telephone Consumer Protection Act, improper debt collection and fraud.



Split N.J. High Court Nixes Class Certification In TGI Fridays Drink Prices Suit
TRENTON, N.J. - A divided New Jersey Supreme Court on Oct. 4 ruled in the first of two consolidated cases that class certification is inappropriate in a lawsuit against TGI Fridays Inc. over hidden drink prices and, in the second suit over hidden drink prices at Carrabba's New Jersey locations, ruled that class certification was appropriate for one of two claims as long as the class was narrowed (Debra Dugan, et al. v. TGI Fridays, Inc., et al., Ernest Bozzi, et al. v. OSI Restaurant Partners, LLC, et al., Nos. 077567 and 077556, N.J. Sup., 2017 N.J. LEXIS 975).



7th Circuit Affirms No Class Certification In Union Fair-Share Fee Suit
CHICAGO - Too many individualized issues predominate in a suit over public employees who were forced to pay fees to a union, even if they were not members, a Seventh Circuit U.S. Court of Appeals panel ruled Oct. 11, upholding a trial court's ruling in a case on remand from the U.S. Supreme Court (Theresa Riffey, et al. v. Bruce V. Rauner, et al., No. 16-3487, 7th Cir., 2017 U.S. App. LEXIS 19868).



Federal Judge Conditionally Certifies Coffeehouse Workers Seeking Unpaid Overtime
NEW ORLEANS - A class proposed by a former coffeehouse worker who claims that she and other workers were paid cash for overtime hours rather than time and a half was granted conditional certification by a Louisiana federal judge on Oct. 6 following the employer's failure to respond to the plaintiff's motion (Hernandez v. Morning Call Coffee Stand, Inc., No. 17-2613, E.D. La., 2017 U.S. Dist. LEXIS 166018).



High Court Removes Securities Suit Oral Arguments From Calendar
WASHINGTON, D.C. - The U.S. Supreme Court on Oct. 17 removed from the calendar oral arguments in an appeal of a securities class action ruling regarding Securities and Exchange Commission Regulation S-K Item 303's duty to disclose provision for federal securities law claims and stayed the action after the parties stated that they have reached a settlement (Leidos Inc., v. Indiana Public Retirement System, et al., No. 16-581, U.S. Sup.).



8th Circuit Affirms Remand Of Class Suit Alleging Slack-Filled Red Hot Candy
ST. LOUIS - The maker of Red Hot candy failed to show that the amount being sought by a class of consumers alleging "slack-filled" packages or the cost of complying with a potential injunction exceeds the Class Action Fairness Act's (CAFA) $5 million threshold, an Eighth Circuit U.S. Court of Appeals panel ruled Oct. 13, affirming a trial court's remand order (Jaclyn Waters, et al. v. Ferrara Candy Co., No. 17-2812, 8th Cir., 2017 U.S. App. LEXIS 19977).



California Federal Judge Keeps Rest Break Class Suit In Federal Court
SACRAMENTO, Calif. - A class complaint accusing an ambulance service company of rest break violations belongs in federal court because the employer has shown that the claims are preempted and that federal question jurisdiction exists, a California federal judge ruled Oct. 12 (Meghan Silva, et al. v. Medic Ambulance Service, Inc., No. 17-876, E.D. Calif., 2017 U.S. Dist. LEXIS 169128).



California Federal Judge Sends Wage-And-Hour Class Suit Back To State Court
SACRAMENTO, Calif. - An employer that removed a wage-and-hour class suit to federal court under the Class Action Fairness Act (CAFA) initially sufficiently challenged the plaintiffs' amount-in-controversy calculation but then failed to meet its heightened burden when the plaintiffs moved to remand, a California federal judge ruled Oct. 5, sending the case back to state court (Juan Contreras, et al. v. J.R. Simplot Company, et al., No. 17-585, E.D. Calif., 2017 U.S. Dist. LEXIS 166359).



School Bus Company Keeps Waiting Time Wage Suit In Federal Court
OAKLAND, Calif. - A California federal magistrate judge on Oct. 6 denied a school bus driver's motion to remand his waiting time wages class complaint, finding that his employer sufficiently showed that just one of the claims is worth well above the Class Action Fairness Act's (CAFA's) $5 million threshold (Bhanu Vikram v. First Student Management, LLC, No. 17-4656, N.D. Calif., 2017 U.S. Dist. LEXIS 166396).



ADT Agrees To Settle Class Suits Over Wireless Systems' Vulnerabilities For $16M
SAN FRANCISCO - A California federal judge on Oct. 16 granted preliminary approval of a $16 million settlement to be paid by ADT LLC to end several class action suits accusing the home security system company of failing to disclose that its wireless systems are unencrypted and vulnerable to attack (Michael Edenborough v. ADT, LLC, No. 16-2233, N.D. Calif., 2017 U.S. Dist. LEXIS 170896).



Bon Secours Health Will Pay $98M To 7 Plans To Settle Underfunding Claims
BALTIMORE - Bon Secours Health System Inc. (BSHSI) will contribute $14 million annually for the next seven years, for a total of $98 million, to seven defined-benefit plans operating as "church plans" to settle claims that it improperly operated the plans as exempt from the Employee Retirement Income Security Act and underfunded them, a class of participants claim in their motion for final approval of the settlement agreement and certification of settlement class filed Oct. 13 in the U.S. District Court for the District of Maryland (Arlene Hodges, et al. v. Bon Secours Health System, Inc., et al., No. 16-1079, D. Md.).



Judge Grants Preliminary Approval Of $28.5M Settlement In IPO Suit
NEW YORK - A federal judge in New York on Oct. 11 granted preliminary approval of a $28.5 million securities class action settlement between shareholders and a global eCommerce company and others, ruling that the proposed settlement offer is fair, reasonable and adequate (In re Cnova N.V. Securities Litigation, No. 16-444, S.D. N.Y.).



6th Circuit Reinstates Collective Suit Over Hhgregg's Commission-Only Pay
CINCINNATI - A split Sixth Circuit U.S. Court of Appeals panel on Oct. 12 reversed a trial court's dismissal of a collective action accusing hhgregg Inc. and Gregg Appliances Inc., owner and operator of more than 220 appliance and electronic stores across the country, of violating federal and state wage laws in part by advancing commission-only employees a "draw" when their commissions fall below minimum wage and then requiring it to be paid back upon termination (Robert Stein, et al. v. hhgregg Inc., et al., No. 16-3364, 6th Cir., 2017 U.S. App. LEXIS 19908).



Hospital Collection Calls Class Suit Survives Motion To Stay, Strike, Dismiss
SAN DIEGO - A California federal judge on Oct. 10 denied a children's hospital's motion to stay, strike class allegations or dismiss a class complaint filed by individuals who allege collection calls placed on the hospital's behalf violated the Telephone Consumer Protection (TCPA) (Taneesha Crooks, et al. v. Rady Children's Hospital, No. 17-246, S.D. Calif., 2017 U.S. Dist. LEXIS 168085).



3rd Circuit Affirms Dismissal Of Variable Electricity Pricing Class Suit
PHILADELPHIA - A Third Circuit U.S. Court of Appeals panel on Oct. 12 affirmed a trial court's decision to dismiss with prejudice a breach of contract class claim brought by a Pennsylvania resident who claimed that an energy company violated its service contract by raising the rates each month (John D. Orange, et al. v. Starion Energy PA, Inc., et al., No. 16-1949, 3rd Cir., 2017 U.S. App. LEXIS 19939).



Judge Dismisses Class Action Over Dimensional Lumber Measurements
CHICAGO - A federal judge in Illinois on Sept. 29 dismissed with prejudice a class action claiming that the home improvement store Menard Inc. violated the Illinois Consumer Fraud Act (ICFA) when selling dimensional lumber that was not the size listed on the label, finding that while the plaintiffs had standing, the labels were not misleading because they do not have inch-mark symbols (Michael Fuchs, et al. v. Menard, Inc., No. 17-01752, N.D. Ill., 2017 U.S. Dist. LEXIS 160336).



Yahoo, Plaintiffs To Brief On Impact Of 3 Billion User Announcement On Breach Suit
SAN JOSE, Calif. - Following an Oct. 3 disclosure by Yahoo Inc. that a 2013 data breach affected 3 billion, rather than 1 billion users, a California federal judge on Oct. 5 directed Yahoo and the plaintiffs in a consolidated class action over that and other breaches to provide input on how this latest announcement will impact the proceedings (In re: Yahoo! Inc. Customer Data Security Breach Litigation, No. 5:16-md-02752, N.D. Calif.).



Federal Judge Dismisses Breach Of Fiduciary Duty Claim Against Verizon Plans
NEW YORK - A plaintiff's allegations that a number of 401(k) retirement plans offered by Verizon Communications Inc. were "overly complex, overly risky, and inappropriate for the average Verizon employee" are not sufficient to maintain a claim for breach of fiduciary duty, a New York federal judge said Sept. 28 in partially granting the defendants' motion to dismiss (Melina N. Jacobs v. Verizon Communications Inc., et al., No. 16-1082, S.D. N.Y., 2017 U.S. Dist. LEXIS 162703).



7th Circuit Panel Affirms Dismissal Of Depakote RICO Class Action By Insurers
CHICAGO - A Seventh Circuit U.S. Court of Appeals panel on Oct. 12 affirmed dismissal of a racketeering class action against Abbott Laboratories for its off-label promotion of the seizure drug Depakote, saying there are too many layers between the drug manufacturer's actions and Depakote prescriptions paid for by two third-party payers to prove an injury (Sidney Hillman Health Center of Rochester, et al. v. Abbott Laboratories, et at., No. 17-1483, 7th Cir., 2017 U.S. App. LEXIS 19925).



1st Circuit Denies Rehearing In Securities Suit Against Drug Company
BOSTON - The First Circuit U.S. Court of Appeals denied a petition for rehearing and rehearing en banc in a securities class action filed by a pharmaceutical company's shareholders who alleged that the company and certain of its executive officers misrepresented the likelihood of U.S. Food and Drug Administration (FDA) approval for its Duchenne muscular dystrophy treatment drug in violation of federal securities law (Mark A. Corban v. Sarepta Therapeutics Inc., et al., No. 15-2135, 1st Cir.).



Fast Food Workers Ask 9th Circuit To Find McDonald's, Franchisees Joint Employers
SAN FRANCISCO - A district court erred when it ruled that no reasonable juror could find that McDonald's Corp. and McDonald's U.S.A. LLC, along with franchisees, are joint employers of fast food crew members under California's wage-and-hour law, a class of workers argue in their appellant brief filed Oct. 2 in the Ninth Circuit U.S. Court of Appeals (Guadalupe Salazar, et al. v. McDonald's Corp., et al., No. 17-15673, 9th Cir.).



Amex Shareholder Class Action Over Alleged Misrepresentations Dismissed
NEW YORK - A pension fund failed to show that a credit card company and certain of its executive officers violated federal securities laws by failing to disclose known trends and uncertainties and other adverse facts concerning its co-brand agreement negotiations with an international retailer, a federal judge in New York ruled Sept. 30 in dismissing the pension fund's amended class complaint for failure to plead any actionable misrepresentations or scienter (Plumbers and Steamfitters Local 137 Pension Fund v. American Express Co., et al., No. 15-5999, S.D. N.Y., 2017 U.S. Dist. LEXIS 162399).



Tibble Defendants Will Pay $5.8 Million For Attorney Fees
LOS ANGELES - The parties in the long-running Tibble v. Edison International case filed a joint stipulation in a California federal court on Oct. 16 stating that the defendants will pay the class counsel $5.8 million in attorney fees and costs as long as the court approves the award (Glenn Tibble, et al. v. Edison International, et al., No. 07-5359, C.D. Calif.).



Employee Will Appeal Judgment For Converse In Suit Over Pay For Bag Checks
SAN JOSE, Calif. - On Oct. 13, just two days after a California federal magistrate judge granted summary judgment to Converse Inc. in a class complaint over no pay for time spent waiting for and going through bag checks, the lead plaintiff filed a notice of appeal (Eric Chavez v. Converse, Inc., No. 15-3746, N.D. Calif., 2017 U.S. Dist. LEXIS 169167).



Royal Caribbean Customer Files Class Complaint Over Hurricane Cruise
MIAMI - A Canadian woman filed a class complaint on Sept. 28 in a Florida federal court accusing Royal Caribbean Cruises Ltd. (RCCL) of subjecting its customers to "days of danger, terror, and trauma" as the result of allegedly being forced to travel into the path of Hurricane Harvey (Nikki McIntosh, et al. v. Royal Caribbean Cruises Ltd., No. 17-23575, S.D. Fla.).



Vegas Shooting Witnesses File Class Complaint Against Gun Device Makers, Sellers
LAS VEGAS - Individuals who witnessed the Las Vegas shooting at a music festival on Oct. 1 filed a class complaint in Nevada state court on Oct. 6, seeking damages for emotional distress from gun device maker Slide Fire Solutions L.P. and other unnamed manufacturers and retailers (Devon Prescott, et al. v. Slide Fire Solutions, LP, et al., No. A-17-762709, Nev. Dist., Clark Co.).



ACLU Files Class Complaint Over Immigrant Minors' Access To Abortions
WASHINGTON, D.C. - The American Civil Liberties Union filed a class complaint against federal government officials on Oct. 13 in the U.S. District Court for the District of Columbia, alleging that unaccompanied immigrant minors, many of whom have been sexually abused or assaulted, are being denied access to abortions in violation of their rights under the First and Fifth Amendments to the U.S. Constitution (Rochelle Garza, et al. v. Eric Hargan, et al., No. 17-2122, D. D.C.).



Class Complaint Alleges Plan Investment Committee Failed To Diversify
HOUSTON - The Investment Committee of the Phillips 66 Savings Plan, the committee members and the plan's financial administrator violated the Employee Retirement Income Security Act by failing to diversify and investing almost exclusively in the stock of its former parent company, ConocoPhillips, plan participants allege in their class complaint filed Oct. 9 in the U.S. District Court for the Southern District of Texas (Jeffrey Schweitzer, et al. v. The Investment Committee of The Phillips 66 Savings Plan, et al., No. 17-3013, S.D. Texas).



False Labeling, Wage, Fraud, Other Complaints Hit Courts
Recent class action lawsuits filed in federal and state courts across the country include complaints alleging false advertising, wage-and-hour violations, fraudulent inducement and excessive termination fees.



2016 Insurance-Related Class Actions Filed In Or Removed To Federal Court
By Charlotte E. Thomas (Complete version of commentary with images available. Document #43-171020-199X.) This report analyzes 210 insurance-related class actions1 filed in or removed to federal court in 2016. In many respects, the results are predictable. The greatest percentage of the insurance-related class actions involve coverage or claims handling decisions, although there were a few interesting pockets of recurring class claims, such as inflated drug prices and cost of insurance ("COI") increases for life insurance policies. The predominant forum choices were on the American coasts, California and Florida being the preferred locations. One notable result was the frequency of voluntarily dismissals by the plaintiff and individual settlements reached with the named plaintiff only. It can only be surmised that either these cases never were intended to be consummated as class actions or that impediments arose after filing that prevented a cost-effective resolution on a class-wide basis.