A California federal judge denied most of the motion to dismiss filed against Fatburger’s parent company. U.S. District Judge Philip S. Gutierrez ruled that investors can proceed with their claims that the company omitted key information in its initial public offering documents. The judge stated that FAT Brands Inc.’s failure to disclose its management team’s former bankruptcies in similar business circumstances could be considered misleading, especially because the regulatory filings touted the management team’s “track record” and “experience.” The IPO documents didn’t mention that several Fatburger subsidiaries filed for bankruptcy in 2009 while under the direct supervision of the FAT Brands’ current management team, the order said. Fatburger is a fast-casual restaurant operated by FAT Brands.

The Fatburger bankruptcies also occurred in the context of an acquisition spree, which was to be one of FAT Brands’ key growth strategies following the IPO, according to court documents. The incidents allegedly also resulted in Fatburger’s owner, Fog Cutter Capital Group Inc., having its stock delisted. FCCG is run by members of FAT Brands’ leadership team and is a majority shareholder in FAT Brands, according to court documents.

However, Judge Gutierrez said shareholders didn’t explain how certain other alleged omissions could have misled investors. Investors’ second amended complaint pointed out that FCCG had also been delisted from the Nasdaq in 2004 for allegedly “one-sided agreements,” such as paying an executive $4.75 million while he was in jail and allowing him to exercise considerable control over the company while incarcerated. But the complaint didn’t show why that publicly available information was needed in the IPO filings, the order said.

The case is Adam Vignola v. FAT Brands Inc. et al., case number 2:18-cv-07469, in the U.S. District Court for the Central District of California.


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U.S. District Judge Edward M. Chen, from the Northern District of California, rejected Uber’s motion to dismiss a driver’s suit alleging he was misclassified as an independent contractor and shorted on wages under a new California law. It remains to be seen how many drivers in the putative class are covered by Uber’s arbitration agreement.

Judge Chen kept alive most of the driver’s claims in light of Assembly Bill 5, which was signed into law in September and was set to take effect Jan. 1, 2020, which codified the so-called ABC test that the California Supreme Court adopted in its April 2018 decision in Dynamex Operations West v. Superior Court of Los Angeles. The decision imposed a stricter three-pronged test on employers looking to classify workers as independent contractors, who have fewer workplace protections than employees.

The case is Colopy v. Uber Technologies Inc., case number 3:19-cv-06462, in the U.S. District Court for the Northern District of California.


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Mark Joseph Stern at Slate has written an article on explains in a way that many laypeople can understand, why class actions are important and valuable. He also does a great job explaining how the Court’s jurisprudence around forced arbitration has been harmful to workers, consumers and others in wiping out important class actions. To read the article, “The Decade Class Actions Were Gutted,” click here.


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A golf club once called “America’s snootiest” doesn’t pay its caddies proper wages for their work, according to a proposed class action complaint. The named plaintiff, a caddy, alleges that the Long Island Golf Club, National Golf Links of America, only paid the caddies for the time they spent actually carrying bags even though he worked as many as 70 hours in a given week. Besides carrying golf bags, they were also expected to do other tasks, including cleaning and folding towels, vacuuming the locker room, cleaning toilets, and washing golf carts, according to the complaint. The complaint also alleged that If they showed up to the course and no golfers hired them, they weren’t paid at all.

The prestigious golf course requires its members to walk the links rather than use golf carts, which necessitates caddies to help carry clubs and maintain the course.

The complaint claims the National’s behavior violates the spread of hours pay rule in New York, which says that employees who work more than 10 hours in a given day are required to be paid for an extra hour based on the minimum wage in Suffolk County. The caddies aren’t paid any fixed wages at all, according to the suit. According to the complaint, the National classifies their caddies as neither employee nor independent contractor

The case is Rodriguez v. National Golf Links of America et al., case number 2:19-cv-07052, in the U.S. District Court for the Eastern District of New York.


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Stoll Berne attorney Keith Dubanevich was quoted in a January 9, 2020 article in the Oregonian. The article, “Ruby Receptionists faces $30 million lawsuit for allegedly overcharging clients,” can be found here.

A class action settlement has been announced in a long running case against Bausch Health Cos. Inc., formerly known as Valeant Pharmaceuticals. The settlement announced December 16, 2019 said Bausch will pay $1.2 billion to resolve the securities class action accusing its former leaders of fraudulently inflating its stock when the Canadian company was known as Valeant Pharmaceuticals.

The nearly five-year-old lawsuit claimed Valeant used a clandestine network of pharmacies to push high-priced drug prescriptions, sending the stock plummeting once price-gouging allegations surfaced. Under the settlement, payouts will begin in mid-January and will be funded by cash and revolving credit, according to the announcement.

The stock-drop litigation represents consolidated claims by investors who saw Valeant’s stock price slide from more than $250 a share in 2015 to below $10 two years later. The company has been fined by regulators and sued by investors who said it defrauded the market.

The complaint alleged that Valeant duped insurers by changing prescription codes to ensure they were filled with Valeant-branded drugs and making claims for unrequested refills, investors said, and covered up the scheme by lying about the pharmacies’ ownership and issuing a series of false statements to investors.

The case is In re Valeant Pharmaceuticals International Inc. Securities Litigation, case number 3:15-cv-07658, in the U.S. District Court for the District of New Jersey.


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Class Members in an ERISA class action against MFS Investment Management secured a $6.9 million settlement with who claimed the company mismanaged their retirement savings. The Plaintiffs in the Class Action alleged that MFS breached its fiduciary duties and engaged in prohibited transactions.

According to the settlement proposal, the $6.9 million amount represents about 30% of the damages the workers could recover if they were to prove liability and maximum damages on all of their claims. The result is impressive both for dollar amount per class member (about $2,291) and the percentage of the plan’s assets (about .72%) it represents.

The pact also requires MSF to make the qualified default investment alternative for the plan a non-proprietary fund for at least three years following the settlement, and the company will also have to retain an unaffiliated third-party investment consultant to evaluate the plan’s lineup every year over the same period.

The proposed class has roughly 3,000 members based on information that was provided by MFS.

The case is Velazquez v. Massachusetts Financial Services Company et al., case number 1:17-cv-11249, in the U.S. District Court for the District of Massachusetts.


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A class action has been filed on behalf of a proposed class of Canada Goose investors who allege the luxury outerwear brand concealed inhumane treatment of animals it sourced materials from, causing a stock price decline after the company came under scrutiny for falsely advertising about its practices. According to the complaint, a series of revelations about the company’s sourcing, including a news release by People for the Ethical Treatment of Animals, a media report and a Federal Trade Commission investigation of the company’s advertising, all contributed to a “precipitous decline” in the price of the company’s stock.

The complaint claims these revelations on the sourcing were met with per-share stock drops of about 1.36% to almost 5%. The proposed class would include those who purchased Canada Goose stock between March 16, 2017, when the company started trading on the New York Stock Exchange after its initial public offering, and Aug. 1, 2019, when the media report was published.

The case is Cheng v. Canada Goose Holdings Inc. et al., Case Number 1:19-cv-08204, in the U.S. District Court for the Southern District of New York.


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The U.S. District Court for the Central District of California has certified a class action on behalf of detained immigrants who allege that a private company and prison operator, Geo Group, forced them to work for $1 a day. Trial is set for June 2020.

The complaint alleges “systematic and unlawful wage theft” and was filed by detainees at Geo Group’s ICE Processing Center in Adelanto, California. Under the Trump administration’s strict immigration policies, there has been a growing demand for detention centers to house those who have been detained after illegally crossing the U.S. border. Many spends months in the detention centers as they await legal proceedings to seek asylum in this country.

One class certified by the California court alleges that Geo violated the California Minimum Wage Law by paying detainee workers only $1 a day for labor; two classes allege the company violated federal and California laws by compelling detained immigrants at Adelanto to work; and a fourth class seeks to stop Geo’s forced labor practices at its 12 immigration detention centers nationwide.

The lawsuit, filed in 2017 on behalf of Raul Novoa and other detainees, alleges that Geo Group uses “nearly-free labor” of detainees to perform maintenance services to maximize the company’s profits.

Work assignments at Adelanto include food service, laundry, dorm and hallway cleaning, floor crew, barbershop, intake, medical detail, paint detail and warehouse work, according to the lawsuit. Detainees who refuse work assignments face sanctions that include “interference with their immigration cases, solitary confinement, or punitive housing reassignments,” according to the complaint.

Geo Group is one of nation’s largest detention contractors and has been awarded new or extended contracts in 2019 with Immigration and Customs Enforcement and the Marshals Service. In South Florida, Geo operates the Broward Transitional Center, where teenagers who illegally entered the country have been incarcerated.


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Stoll Berne, along with 10 individual attorneys, were recently selected to be included in the 2020 edition of Benchmark Litigation, a definitive source for America’s leading litigation firms and attorneys. Our award recipients include:

HIGHLY RECOMMENDED

STATE LITIGATION STARS

  • Gary Berne
    Antitrust, General Commercial, Securities, Trust/Estates
  • Tim DeJong
    General Commercial, Intellectual Property, Securities
  • Keith Dubanevich
    Antitrust, Appellate, General Commercial, Securities, Class Actions, Healthcare
  • Keith Ketterling
    Antitrust, General Commercial, Securities
  • Steve Larson
    Antitrust, General Commercial, Intellectual Property, Securities, Employment
  • Yoona Park
    General Commercial, Securities, Employment
  • Josh Ross
    General Commercial, Securities
  • Rob Shlachter
    General Commercial, Intellectual Property

FUTURE STARS

United States Federal District Court Judge R. Gary Klausner granted class certification to the U.S. Senior Women’s National Soccer Team (“WNT”) in its suit against the U.S. Soccer Federation Inc. The action was filed in the Central District of California on March 8, 2019, just months before the team’s historic World Cup victory, naming all 28 current WNT players as named plaintiffs. In the complaint, the players claim that the U.S. Soccer Federation is in violation of the Equal Pay Act and Title VII of the Civil Rights Act of 1964, alleging that the defendant’s pay structure is unfair to the women’s team in comparison to the less successful men’s league.

For example, the complaint details how under the pay structure in effect from January 1, 2001 through December 31, 2018, the Men’s National Soccer Team (“MNT”) players received a predetermined payment to play each game. That amount then increased depending on the level of the opposing team (FIFA-ranked 1-10, FIFA-ranked 11-24, etc.) and whether they won or tied the game. The payment structure for the WNT was much different.


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Kemet has reached a $62 million settlement of antitrust litigation in California federal court accusing several electronics parts manufacturers of agreeing to fix the price of capacitors. Groups of direct and indirect purchasers have accused more than a dozen overseas manufacturers including Panasonic Corp. and Sanyo of conspiring to fix prices for aluminum, tantalum and film capacitors over the last decade. U.S. District Judge James Donato certified a class of direct buyers in November 2018.

The lawsuit was filed in July 2014. In April 2018, indirect purchasers reached a $20 million deal with several manufacturers and later that year they reached a $21.5 million agreement with Nichicon Corp.


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A federal judge in Florida gave final approval to a $3.6 million settlement between Global HR Research and a nationwide class of job applicants. The complaint in the class action lawsuit alleged the consumer reporting agency violated the Fair Credit Reporting Act by disclosing workers’ background check results to employers without proper authorization. According to the settlement documents, each of the approximately 18,931 members of the settlement class would receive $117. The class consists of job applicants nationwide whose sensitive information, in the past five years, was compiled by Global HR and disclosed without the company obtaining the user’s certification that it would comply with the FCRA.


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Elizabeth Bailey has joined the law office of Stoll Berne as an associate attorney. Her practice will focus on complex litigation.

Prior to joining Stoll Berne, she served as a law clerk for the Honorable David W. Christel (U.S. District Court, Western District of Washington) as well as a judicial extern to the Honorable Jolie A. Russo (U.S. District Court of Oregon). She also served as a law clerk for a law firm in Springfield, OR and as a foreclosure law clerk with the Northwest Justice Project.

Elizabeth received her law degree from the University of Oregon School of Law, Order of the Coif, in 2017 and received a Bachelor of Arts, magna cum laude, Public Affairs, in 2014 from Washington State University Vancouver. During law school, she received the Excellence in Writing Award in 2016, the Excellence in Written Advocacy Award in 2015, was a Public Law & Policy Fellow from 2014-2017, was an editor on the Oregon Law Review from 2015-2017, and was a board member for the Oregon Law Students Public Interest Fund from 2014-2017, serving as director from 2015-2016.

AT&T will pay $60 million to the U.S. Federal Trade Commission for allegedly slowing data speeds for millions of wireless customers who paid for the “unlimited” plans. The federal regulators complaint said that the company would reduce customers’ internet speeds by as much as 90%. The FTC said the company did not adequately disclose to consumers that it would slow data speeds once the consumers used a certain amount of data in their monthly cycle.


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Stoll Berne was recently named in the U.S. News & World Report and Best Lawyers, Best Law Firms rankings for 2020.

Firms included in the 2020 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise. Our areas ranked include:

Metropolitan Tier 1 (Portland, OR):

Metropolitan Tier 2 (Portland, OR):

Metropolitan Tier 3 (Portland, OR):

Jen Wagner - New Co-Managing ShareholderStoll Berne attorney Jen Wagner has been named as the firm’s new Co-Managing Shareholder. Wagner has been a shareholder of the firm since 2012. Her practice focuses on the areas of complex business, securities, and class action litigation.

“We are excited about Jen’s transition to this leadership role in the firm. Jen’s clients value her approachable and cool-headed manner in litigating and resolving contentious cases and the firm is looking forward to bringing her style to the leadership team.” said Keith Ketterling, Stoll Berne Co-Managing Shareholder.

Jen received her J.D., magna cum laude, graduating first in her class from Northwestern School of Law at Lewis and Clark College. She received her undergraduate degree from the University of Michigan, Ann Arbor. She an active member of the Oregon State Bar having served on the Litigation Section’s Executive Committee since 2014 and is currently a board member and Vice President for the Multnomah Bar Foundation. She has received award rankings from Benchmark Litigation since 2015, The Best Lawyers in America since 2013, and Oregon Super Lawyers since 2010.

Stoll Berne attorney Josh Ross presented at the October 25, 2019 Oregon State Bar Consumer Law Section CLE. Josh, along with Amber Hollister, General Counsel of the Oregon State Bar, discussed, “Ethical Traps and Pitfalls in Settlements.”

For more information, click here.

The Portland Business Journal recognized Stoll Berne as the top philanthropist company in Portland for the 2018 financial year in the Small Company Category.

The firm contributed both money and employee hours to many local charitable and nonprofit causes in 2018 including: Jewish Federation of Greater Portland, Brian Grant Foundation, St. Mary’s Home for Boys, Arab American Cultural Center of Oregon, Dream Factory of Oregon and many others.

Stoll Berne has been a major contributor to the Campaign for Equal Justice since its founding and has consistently been listed as a Guardian of Justice which is comprised of firms that give an average of $1000 or more per attorney. CEJ Executive Director May Crawford Peacock said:

“Stoll Berne’s leadership as a long-term Guardian of Justice Firm has been important to the continued provision of legal aid services in Oregon.”

At Stoll Berne, practicing law is just part of our job – our purpose is much greater. The firm encourages generosity, volunteerism, community involvement, and sustainability. And we practice what we preach.

For example, Stoll Berne attorneys Gary Berne, Tim DeJong, and Keith Ketterling volunteered with the Southern Immigrant Freedom Initiative (SIFI) of the Southern Poverty Law Center (SPLC) in Lumpkin, Georgia, helping immigrant families by interviewing detainees and providing legal services to assist them when they qualified for release on bond or parole. To learn more about our work, click here.

“Stoll Berne stepped up to collaborate with SPLC and SIFI in our work to protect the rights of immigrants detained in some of the worst conditions and one of the most hostile jurisdictions in the United States. We will be forever grateful for the talent, hard work and selfless dedication the attorneys of Stoll Berne brought to this important cause,”

said Peter Isbister, Senior Lead Attorney with SIFI and SPLC.

Additionally, the firm assisted immigrants who were detained in Sheridan, Oregon. Working with the ACLU of Oregon and the Innovation Law Lab, the firm worked with 80 detained immigrants; all but two of them were found to have a positive credible fear of harm which allowed them to be released from detention while pursuing their asylum claims. To learn more about our work, click here.

Regina Ellis, Founder/CEO of the Children’s Cancer Association commented:

“We have relied on Stoll Berne to provide practical solutions to complex challenges. The Stoll Berne team is equipped with experience and institutional knowledge to act as strategic and legal advisors. We are proud to be among the organizations you serve improving our community and the lives of others. Congratulations on receiving the 2019 Portland Business Journal’s prestigious award in community philanthropy.”

“The firm is honored to receive this award. It’s part of who we are and why we do what we do” said Stoll Berne Co-managing Shareholder Jen Wagner.

To learn more about the Portland Business Journal’s Corporate Philanthropy Awards and to read the firm’s article, click here.

On September 18, 2019, Stoll Berne attorneys Josh Ross and Lydia Anderson-Dana represented two directors of the Alpenrose Dairy businesses in a five day preliminary injunction hearing in Multnomah County Circuit Court. Stoll Berne’s clients, along with two other company directors, voted in favor of selling certain operating assets of the Dairy’s business to Smith Brothers Farms. That transaction will not impact the remainder of the property in southwest Portland and will have minimal impact on community uses.

Like Alpenrose, Smith Brothers is a century-old, family owned dairy business. The two companies have worked together on a transaction over many months, and are excited that the transaction will preserve the Alpenrose brand, expand the dairy’s market, and strengthen the ability of the two mid-sized dairies to compete in an increasingly difficult industry.

On the eve of closing, a minority group of family members, representing an indirect ownership block of just under 2%, filed suit, claiming that a non-binding proposal they previously submitted was superior and that the board was required to sell the business to them.

Evidence at the hearing showed that, in addition to the plaintiffs’ non-binding proposal, the plaintiffs had previously submitted a covert proposal to buy the business in the name of a private equity firm, without revealing their involvement. That proposal included a significantly under-valued “option” to acquire the separately-owned real estate and also showed that the plaintiffs hoped to move the business and develop the property.

At the conclusion of the five day hearing aimed at halting the sale, the Court found that the plaintiff’s competing proposal was not objectively superior and that the board’s prior negotiating history with the plaintiffs supported the board’s reasonable and objective view that Smith Brothers was the better negotiating partner. The Court denied the plaintiffs’ request to halt the sale and also dismissed the lawsuit.

On October 10, 2019, an arbitration panel in a separate pending litigation matter rejected another attempt by the plaintiffs to halt the sale.