/raid1/www/Hosts/bankrupt/CAR_Public/190121.mbx
C L A S S A C T I O N R E P O R T E R
Monday, January 21, 2019, Vol. 21, No. 15
Headlines
4 CORNERS: Foreman Suit Moved to Western District of Oklahoma
ADVANCED DENTAL: Misclassifies Dentists as Contractors, Suit Says
AEROFLOT RUSSIAN: Bandurin Seeks Damages for Delayed Int'l. Flights
ALBERTA: Gov't Faces Class Action Over Coerced Sterilization
AMERIPRISE FINANCIAL: Saunders Suit Moved to C.D. California
APPLE INC: Class Must Amend Claims in Software Update Lawsuit
ARIZONA: 9th Cir. Reverses Staffing Plan Development Order
AT&T INC: Reconsideration of Seaman Class Claims Dismissal Denied
AVIVA: Faces Class Action in Canada Over Insurance Claims
BARCEL USA: Court Dismisses 1st Amended Morrison Suit
BARCLAYS BANK: Sued over Collection of Annual Membership Fees
BE AMAZED: Has Until Feb. 1 to Respond to Lynch Suit
BECTON DICKINSON: Marion Diagnostic Filed Appeal in 7th Cir.
BETHESDA SOFTWORKS: Customer Sue Over Cheap Duffel Bag Material
BRIARCLIFF BUS: Alvarez Sues to Recover Overtime Pay
BRIGHAM EXPLORATION: Boytim's 3rd Bid to Certify Class Denied
BRISTOL COUNTY, MA: Claims in Inmate Telephone Service Suit Trimmed
BRITISH COLUMBIA: Gov't Faces Class Action Over Grizzly Hunting Ban
CALIFORNIA, CA: Flores Suit Dismissed with Leave to Amend
CENTERPLATE INC: Marquez Suit Moved to N.D. California
CHESTNUT HOLDINGS: De La Rosa Sues Over Unpaid Wages
CONSOLIDATED WELLSITE: Evans Seeks Unpaid Overtime Wages
CRST INTERNATIONAL: Iowa Law Governs Perez Misclassification Suit
CVS RX: Court Enters Partial Judgment on Cabrera's PAGA Claim
DBV TECHNOLOGIES: Rosen Law Firm Investigates Securities Claims
DISCOUNT CROTONA: Martinez Seeks to Recoup Unpaid Wages
EAST BAY PUBLISHING: Made Illegal Autodialled Calls, Carter Says
ENERGY INSPECTION: Brandon Thrower Seeks Unpaid Wages
EPIC GAMES: YouTuber Keemstar to Join Class Action
FERRERO USA: Drucker Files Suit Over Deceptive Nutella Packaging
FLORIDA: Department of Education Appeals Ruling in FEA Class Suit
FOOD COLONY: Romero Seeks Minimum and Overtime Wages
GOLDEN 1 CREDIT: Has Until Jan. 21 to Reply to D. Ware FLSA Suit
GOLDMAN SACHS: Malaysia AG Seeks 1MDB Damages Amid Class Action
GREEN JACOBSON: Completion of Settlement Fund Distribution Ordered
GRIDSUM HOLDING: Faces Gordon Class Action in New York
H&R BLOCK INC: Restricted Inter-hiring of Employees, Claims Davidow
HOOTERS OF AMERICA: Underpays Waitresses & Bartenders, Mireles Says
HOUSTON INSPECTION: Cornell Seeks Overtime Pay for Inspectors
HUNGARY: Dismissal of Hungarian Jews' Class Suit Reversed
IPASS INC: Faces Class Action in Delaware Over Merger
ISIS PARENTING: Calixto WARN Act Suit Dismissal Affirmed
JGAJ PETROLEUM: Onkar Singh Seeks Overtime Wages
JUUL: Altria to Invest in Business Amid Vaping Class Action
LENMAR RESTAURANT: Campos Sues Over Unpaid Wages, Missed Breaks
LTI TRUCKING: J. Ratliff's FCRA Suit Remanded to State Court
LULAROE: Supplier Files $48.7MM Lawsuit Amid Class Actions
MANITOBA: Gov't Faces Class Action Over MDC Patient Abuses
MARKEL CORPORATION: Faces Bergen Suit Over Share Price Drop
MARKETSOURCE INC: Court Denies Class Certification in Delgado
MDL 2741: Allen v Monsanto over Roundup Sales Consolidated
MDL 2804: Danville City May Take Legal Action Over Opioid Crisis
MERRILL LYNCH: Badlwin Suit Removed to Maine Dist. Ct.
MJM STRUCTURAL: Vazquez Seeks Overtime Pay under FLSA
MONSANTO COMPANY: Rickard Sues over Sale of Herbicide Roundup
MUCKAMORE ABBEY: Class Action Mulled Over Patient Abuses
NASHVILLE COUNTY, TN: McKibbens' Racial Discrimination Claim Junked
NEW JERSEY: Sued for Violating Rights of Psychiatric Patients
NIKE: Gender, Pay Discrimination Class Action Ongoing
NISSAN SHAPIRO: $200 Legal Fee Without Basis, Poltorak Says
NOBILIS HEALTH: Feb. 12 Lead Plaintiff Motion Deadline Set
NONGSHIM CO: Obtains Favorable Ruling in Antitrust Class Action
NVIDIA CORP: Feb. 19 Lead Plaintiff Motion Deadline Set
NVIDIA CORPORATION: Oto Sues over Misleading Financial Reports
OGLETREE: Knepper Suit Asserts Gender Discrimination
ORION PROPERTY: Hjelle Suit Transferred to E.D. New York
PACIFIC GAS: Calif. Regulators Mull Breakup Amid Class Actions
PALM BEACH COUNTY, FL: Injunction Denial in Friedenberg Affirmed
PATENAUDE & FELIX: Schultz Appeals W.D. Pa. Ruling to 3rd Circuit
PATRIOT NATIONAL: McIntire Suit Moved to S.D.N.Y.
PAYTIME INC: Judge Okays Data Breach Class Action Settlement
PROVIDENT SAVINGS: Court Dismisses McKeen-Chaplin FLSA Suit
RAY BUILDERS: Plymouth Seeks $125,703 for Work & Labor Services
RECOLOGY INC: Cal. App. Affirms Judgment in Daniels Suit
RED HAT: Investor Files Class Action in Delaware Over IMB Sale
ROYAL CARIBBEAN: Judge Recommends Denial of Class Action Motions
SABOR GUATEMALTECO: Susano et al. Seek Minimum & Overtime Pay
SACRAMENTO COUNTY, CA: Court Certifies Inmate Disability Class
SAMSUNG ELECTRONICS: 9th Circuit Appeal Filed in Dang Suit
SANIMAX USA: Court Denies Bid to Strike Class Claims in Keech Suit
SARBANAND FARMS: Court Certifies H-2A Blueberry Harvester Class
SHASTA COUNTY, CA: $850K Attys' Fees Awarded in Jewett Inmates Suit
SOUTHWEST CREDIT: Faces Delgado FDCPA Suit in N.D. Illinois
STONEMOR PARTNERS: Doczi Suit Moved to S.D. West Virginia
STURM FOODS: Court Issues Trial Plan for Suchanek Class Suit
TARGET CORP: Judge Refuses to Unseal Supplement Settlements
TECH RABBIT: Removed Zarrabian Case to Central Dist. of California
TENESSEE GAS: Liberty County Landowners File Class Action
TIBANA FINISHING: Final Approval of Vazquez Suit Settlement Sought
TRANSWORLD SYSTEMS: Class Certification Sought in Fleenor Suit
UNITED NATIONS: 2d Cir. Affirms Dismissal of LaVenture Suit
UNITED PARCEL: Settles Religious Discrimination Class Action
UNITED STATES: 6th Cir. Vacates Injunctions in Hamama Suit
UNITED STATES: Can't Execute ICE Cambodian Immigrant Raids
UNITED STATES: Judgment in Catahoula Basin Landowners' Suit Upheld
UNITED STATES: OA Moves to Certify Class of Alien Asylum-Seekers
UNIVERSITY OF NEW MEXICO: Dismissal of Cummings Suit Reversed
UNIVERSITY OF OTTAWA: Vincent Nadon Patients File Class Action
VITALE'S PIZZERIA: Wins OK of Class Stipulation in Collier Suit
WAL-MART STORES: April 4 Settlement Fairness Hearing Set
WALMART STORES: Erie Files Suit Over Indemnification Dispute
WASHINGTON COUNTY, OR: Barber's Suit Can't Proceed as Class Suit
WELLS FARGO: $480MM Cross-Selling Class Action Settlement OK'd
WISCONSIN ELECTRIC: Settlement in Luebke Suit Has Prelim Approval
WORLD FINANCIAL: Misclassified Associates as Contractors, Suit Says
[] FMCSA Preempts California's Meal and Rest Break Rules
*********
4 CORNERS: Foreman Suit Moved to Western District of Oklahoma
-------------------------------------------------------------
A case, Danna Foreman, On behalf of Herself and Others Similarly
Situated, the Plaintiff, vs. 4 Corners Construction LLC, the
Defendant, Case No. CJ-18-05697, was removed from the District
Court of Oklahoma County, to the U.S. District Court for the
Western District of Oklahoma (Oklahoma City) on Dec 28, 2018. The
Western District of Oklahoma Court Clerk assigned Case No.:
5:18-cv-01260-F to the proceeding. The suit alleges Fair Labor
Standards Act violation. The case is assigned to the Hon. Judge
Stephen P. Friot.[BN]
Attorneys for Danna Foreman:
Amber L Hurst, Esq.
Kristin E. Richards, Esq.
Mark E. Hammons, Esq.
HAMMONS GOWENS HURST & ASSOCIATES
325 Dean A McGee Ave
Oklahoma City, OK 73102
Telephone: (405) 235-6100
Facsimile: (405) 235-6111
E-mail: amber@hammonslaw.com
kristin@hammonslaw.com
Mark@Hammonslaw.com
Attorneys for 4 Corners Construction LLC:
Kim A. Tran, Esq.
FELLERS SNIDER BLANKENSHIP BAILEY & TIPPENS-OKC
100 N Broadway Ave., Suite 1700
Oklahoma City, OK 73102-8820
Telephone: (405) 232-0621
Facsimile: (405) 232-9659
E-mail: ktran@fellerssnider.com
- and -
Samuel R Fulkerson, Esq.
OGLETREE DEAKINS NASH SMOAK
& STEWART-OKLAHOMA CITY
621 N Robinson Ave., Suite 400
Oklahoma City, OK 73103
Telephone: (405) 546-3751
Facsimile: (405) 546-3775
E-mail: sam.fulkerson@ogletree.com
ADVANCED DENTAL: Misclassifies Dentists as Contractors, Suit Says
-----------------------------------------------------------------
CHARLES SUTERA III, D.M.D., the Plaintiff, vs. BACK BAY DENTAL
GROUP, LLC; RICHARD T. MILLER, D.M.D.; and ADVANCED DENTAL
MANAGEMENT, LLC, the Defendants, Case No. 18-3964B (Mass. Super.,
Ct., Dec. 27, 2018), alleges that the Defendants classified
Plaintiff as an independent contractor, but he was an employee for
purposes of the Massachusetts wage laws, pursuant to M.G.L. c. 149,
section 148B, and common law.
The Plaintiff is a dentist who provides services to Defendants Back
Bay Dental Group, LLC, Richard T. Miller, D.M.D., and Advanced
Dental Management LLC. According to the complaint, the Plaintiff
began working for the Defendants as a dentist in or around July
2014. The Defendants required him and other members of the class to
execute a Provider Agreement prior to the commencement of
employment. The Defendants required that Plaintiff and other
members of the class execute the Agreement through a business
entity. The Plaintiff had to form a business entity in order to
enter into the Agreement. The Agreement specified that Plaintiff
was the individual required to perform dental services, and
Plaintiff was required to sign, in his individual capacity, an
attestation at the end of the Agreement. The Agreement imposed a
number of other obligations and restrictions on Plaintiff, as well,
including a non-compete provision, a covenant not to treat, and a
non-solicitation clause.
As a result of the Agreement and the Defendants' policies and
procedures, the Plaintiff and other members of the class were not
free from control and direction in connection with the performance
of their services for the Defendants, either under the Agreement or
in fact. The services that Plaintiff and other members of the class
provided to the Defendants were not outside the usual course of the
business of the Defendants. On the contrary, the dental services
provided by Plaintiff were squarely within the Defendants' usual
course of business, which was the provision of dental services.
Under the Agreement, the Plaintiff and other members of the class
were precluded from customarily engaging in an independently
established trade, occupation, profession or business of the same
nature as that involved in the services performed for the
Defendants.
Notwithstanding their classification as independent contractors by
the Defendants, the Plaintiff and members of the class properly
should have been classified as employees of the Defendants pursuant
to, among other things, M.G.L. c. 149, section 148B and
Massachusetts common law (including, among other things, the common
law of joint employment). As a result of their misclassification,
the Plaintiff and members of the class were deprived of the
protections, privileges, and benefits of employment by the
Defendants, the lawsuit says.[BN]
Attorneys for Plaintiff:
Stephen Churchill, Esq.
FAIR WORK, P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: 617-607-3260
E-mail: steve@fairworklaw.com
AEROFLOT RUSSIAN: Bandurin Seeks Damages for Delayed Int'l. Flights
-------------------------------------------------------------------
Dmitri Bandurin, Svetlana Bandurina, Alexander Bandurin, on behalf
of themselves and all others similarly situated passengers of
proposed Class, Plaintiffs v. Aeroflot Russian Airlines, and
FinnAir O.Y.J., Defendants, Case No. 1:19-cv-00255 (N.D. Ill.,
January 13, 2019) is a civil action arising under the Treaty of the
United States known as the Convention for the Unification of
Certain Rules Relating to International Transportation by Air,
concluded at Warsaw, Poland, October 12, 1929 or in alternative
under Article 19 of Montreal Convention for the Unification of
Certain Rules for International Carriage by Air, May 28, 1999,
which is the supreme law of this land.
Plaintiffs purchased international airfare transportation from
Chicago to and from Moscow, Russian Federation. On August 5, 2018,
the Plaintiffs were scheduled to fly from Moscow, Russian
Federation to Helsinki, Finland and thereafter to Chicago,
Illinois, USA. The plaintiffs were scheduled to depart from Moscow
at 10:45 a.m., on board Finnair flight AY 6840 which was co-shared
by Aeroflot as flight SU 2206. Thereafter the Plaintiffs were
scheduled to depart from Helsinki to Chicago on Finnair flight AY9.
The Plaintiffs registered in advance for all flights.
However, the Plaintiffs were not allowed to register their luggage
until 9:30 a.m. and thereafter cleared thorough security check and
passport control. As a result, the Plaintiffs arrived 18-19 minutes
before departure, but were not allowed to board said flight despite
the fact that said flight was still by the gate. As a further
result, the Plaintiffs also missed their connecting flight from
Helsinki to Chicago. At that time the representative of Aeroflot
refused to help the Plaintiffs with finding a replacement for the
missed flights.
The Plaintiffs, on their own behalf and on behalf of all similarly
situated members of Class of Passengers of delayed air flights are
bringing this action for compensation for damages caused by delays
of international flights.
Plaintiffs Dmitri Bandurin and Svetlana Bandurina are adult
citizens of the USA residing at 2605 Dorothy Drive, Aurora, IL
60504.
Plaintiff Alexander Bandurin is an adult citizen of the USA
residing at 2605 Dorothy Drive, Aurora, IL 60504.
FinnAir is believed to be a "community carrier" and an air carrier
with valid operational license granted by European Community Member
State in accordance with the provisions of Counsel Regulation (EEC)
No. 2407/92 of July 23, 1992 on licensing of air carriers domiciled
within European Union with headquarters located at: FinnAir Oyj,
Paakassa ACA/14, 01053, Finland.[BN]
The Plaintiffs are represented by:
Vladimir Gorokhovsky, Esq.
Gorokhovsky Law Office, LLC
10919 North Hedgewood Ln.,
Mequon, WI 53092
Phone: (414)-581-1582
Email: gorlawoffice@yahoo.com
ALBERTA: Gov't Faces Class Action Over Coerced Sterilization
------------------------------------------------------------
Kristy Kirkup, writing for The Canadian Press, reports that a
proposed class action has been filed against the government of
Alberta on behalf of Indigenous women who say they were subjected
to forced sterilizations.
The lawsuit seeks $500 million in damages, plus an additional $50
million in punitive damages, and has been brought on behalf of all
Indigenous women sterilized in Alberta without their prior and
informed consent before December 14, 2018.
The statement of claim, filed on Dec. 18, alleges Alberta --
including senior officials and ministers -- had specific knowledge
of widespread coerced sterilizations perpetrated on Indigenous
women.
It also alleges the government turned a blind eye to that conduct
and breached its fiduciary responsibilities.
Nothing in the claim has been tested in court.
"As a result of the defendant's acts and omissions, Indigenous
women suffered… physically, emotionally, spiritually, mentally
and psychologically," the statement of claim says. "Coerced
sterilization has been destructive to their health, family,
relationships and culture."
It also refers to the proposed representative plaintiff May Sarah
Cardinal and a sterilization procedure she allegedly underwent in a
northern Alberta hospital in December 1977.
It says Cardinal was 20 years old and married when she went to the
hospital to give birth to her second child, and she and her husband
wanted to have more. It says the people treating her told her that
a doctor had decided she should be sterilized so as not to have
more children.
"She did not consent to this surgery," it says. "There was no valid
medical reason for the surgery."
Celeste Poltak -- cpoltak@kmlaw.ca -- a lawyer with the
Toronto-based firm Koskie Minsky LLP, says that coerced
sterilization of Indigenous women is "yet another dark chapter" in
the relationship between governments and Indigenous Peoples.
"This court action is a powerful and practical means for finally
achieving access to justice for the victims," she said in a
statement. "The litigation of this claim will afford the government
an opportunity to both examine the failings that permitted this
situation and provide meaningful compensation to the victims."
Ms. Poltak's firm, which is working alongside the Edmonton-based
firm Cooper Regel, notes that Alberta's Sexual Sterilization Act
explicitly authorized forced sterilizations in the province until
1972.
After it was repealed, doctors and nurses in Alberta continued to
perform coerced sterilizations, the firm said, alleging these
actions were a product of systemic and institutional racism.
A proposed class action is also underway in Saskatchewan by Maurice
Law, an Indigenous-owned firm, that names the Saskatoon Health
Authority, the Saskatchewan government, the federal government and
a handful of medical professionals as defendants.
It was launched in 2017 by two women each claiming $7 million in
damages.
Earlier in December, Canada was ordered by the United Nations
Committee Against Torture to stop the "extensive forced or coerced
sterilization" of Indigenous women and girls -- a finding that
prompted calls for additional federal action by human-rights groups
and the federal NDP.
All allegations, including recent ones made in Saskatchewan, must
be impartially investigated and those responsible held to account,
the committee said, adding the state needs to take legislative and
policy measures to stop women from being sterilized against their
will.
Prime Minister Justin Trudeau has defended his government's
response.
During a roundtable interview with The Canadian Press on Dec. 14,
Trudeau called the practice "heinous" while he stressed the
importance of a working group of senior officials to oversee
measures to improve cultural safety in health systems. [GN]
AMERIPRISE FINANCIAL: Saunders Suit Moved to C.D. California
------------------------------------------------------------
A case, Michael Saunders, an individual, on his own behalf and on
behalf of all others similarly situated, the Plaintiff, vs.
Ameriprise Financial Services, Inc. and DOES 1-100, inclusive, the
Defendants, Case No. 18STCV05936, was removed from the Los Angeles
Superior Court, to U.S. District Court for the Central District of
California (Western Division - Los Angeles) on Dec. 27, 2018. The
Central District of California Court Clerk assigned Case No.
2:18-cv-10668-MWF-AFM to the proceeding. The case is assigned to
the Hon. Judge Michael W. Fitzgerald. The suit alleges employment
discrimination violation.
Ameriprise Financial, Inc. is an American diversified financial
services company. Ameriprise Financial engages in business through
its subsidiaries, providing financial planning, products and
services, including wealth management, asset management, insurance,
annuities, and estate planning.[BN]
Attorneys for Plaintiff:
Kiley Lynn Grombacher, Esq.
Marcus J Bradley, Esq.
Taylor L Emerson, Esq.
BRADLEY GROMBACHER LLP
2815 Townsgate Road Suite 130
Westlake Village, CA 91361
Telephone: (805) 270-7100
Facsimile: (805) 270-7589
E-mail: kgrombacher@bradleygrombacher.com
mbradley@bradleygrombacher.com
temerson@bradleygrombacher.com
Attorneys for Ameriprise Financial Services, Inc.:
Pavlina Kochankovska Rafter, Esq.
Gabrielle M Wirth, Esq.
DORSEY AND WHITNEY LLP
600 Anton Blvd Suite 2000
Cosa Mesa, CA 92626
Telephone: (714) 800-1400
Facsimile: (714) 800-1499
E-mail: rafter.pavlina@dorsey.com
wirth.gabrielle@dorsey.com
APPLE INC: Class Must Amend Claims in Software Update Lawsuit
-------------------------------------------------------------
Robert Kahn, writing for Courthouse News Service, reported that a
class must amend claims regarding Apple devices the company patched
with the iOS 11.2 software update, a federal judge ruled on Jan. 2,
dismissing the case without prejudice.
A copy of the Order Granting Defendant's Motion To Dismiss;
Continuing Case Management Conference is available at:
https://is.gd/WXI5Qb
The case is In Re Apple Processor Litigation, Case No. 18-cv-00147
(N.D. Cal.).
ARIZONA: 9th Cir. Reverses Staffing Plan Development Order
----------------------------------------------------------
The United States Court of Appeals, Ninth Circuit, issued an
Opinion reversing the District Court's Order to Develop General
Staffing Plan in the case captioned VICTOR ANTONIO PARSONS; SHAWN
JENSEN; STEPHEN SWARTZ; SONIA RODRIGUEZ; CHRISTINA VERDUZCO; JACKIE
THOMAS; JEREMY SMITH; ROBERT CARRASCO GAMEZ, JR.; MARYANNE
CHISHOLM; DESIREE LICCI; JOSEPH HEFNER; JOSHUA POLSON; CHARLOTTE
WELLS; ARIZONA CENTER FOR DISABILITY LAW, Plaintiffs-Appellees, v.
CHARLES L. RYAN, Warden, Director, Arizona Department of
Corrections; RICHARD PRATT, Interim Division Director, Division of
Health Services, Arizona Department of Corrections,
Defendants-Appellants. VICTOR ANTONIO PARSONS; SHAWN JENSEN;
STEPHEN SWARTZ; SONIA RODRIGUEZ; CHRISTINA VERDUZCO; JACKIE THOMAS;
JEREMY SMITH; ROBERT CARRASCO GAMEZ, JR.; MARYANNE CHISHOLM;
DESIREE LICCI; JOSEPH HEFNER; JOSHUA POLSON; CHARLOTTE WELLS;
ARIZONA CENTER FOR DISABILITY LAW, Plaintiffs-Appellants, v.
CHARLES L. RYAN, Warden, Director, Arizona Department of
Corrections; RICHARD PRATT, Interim Division Director, Division of
Health Services, Arizona Department of Corrections,
Defendants-Appellees. Nos. 16-17282, 17-15352, 17-15302. (9th
Cir.).
The appeal involves the Plaintiffs' challenge to the district
court's ruling that the Stipulation precludes the court from
ordering the Defendants to develop a general staffing plan as a
remedy for the Defendants' non-compliance.
Prisoners in the custody of the Arizona Department of Corrections
(ADC), together with the Arizona Center for Disability Law, brought
a civil rights class action against senior ADC officials alleging
systemic Eighth Amendment violations in Arizona's prison system.
The inmates alleged that ADC's policies and practices governing
health care delivery in ADC prisons and conditions of confinement
in ADC isolation units expose them to a substantial risk of serious
harm to which Defendants are deliberately indifferent.
On the eve of trial, the parties signed a settlement agreement
(Stipulation) by which Defendants agreed to comply with more than
100 performance measures designed to improve the ADC health care
system and reduce the harmful effects of prisoner isolation. Since
the action settled, the parties have engaged in several disputes
over Defendants' alleged noncompliance with the performance
measures, which has required the assigned magistrate judge to issue
various rulings interpreting and enforcing the Stipulation.
The Court reviews the district court's enforcement of a settlement
agreement for abuse of discretion. Under abuse-of-discretion
review, the Court will reverse only if the district court made an
error of law, or reached a result that was illogical, implausible,
or without support in the record.
The Plaintiffs' appeal from the district court's February 3, 2017
order in which the court concluded that the Stipulation precluded
it from ordering Defendants to develop a plan to increase staffing.
The district court reasoned that such a plan would violate the
Stipulation's provision that the Court shall not have the authority
to order Defendants to hire a specific number or type of staff.
Plaintiffs contend this interpretation violates the plain language
of the Stipulation and runs contrary to principles of contract
interpretation.
The Defendants argue this appeal is untimely because the Plaintiffs
filed it more than 30 days after the district court stated during a
September 2016 status hearing that the Stipulation bars the court
from issuing a general staffing order.
This argument is groundless.
The main purpose of the September 2016 status hearing was to
evaluate the effectiveness of the Defendants' remediation plan, not
to resolve definitively a dispute about whether the Stipulation
allows the district court to issue a general staffing order. The
magistrate judge did not purport to resolve this issue conclusively
until the parties briefed it, after which he issued a written order
on February 3, 2017, denying the Plaintiffs' motion for an order
requiring the Defendants to develop a staffing plan. It is this
order that is the relevant decision for starting the appeals clock.
The Plaintiffs filed their notice of appeal on February 17, 2017,
well within 30 days of the February 3 order. Therefore, the appeal
is timely.
The Court says its interpretation of the Stipulation is governed by
principles of local law which apply to interpretations of contracts
generally. Here, the Court apply Arizona contract law because the
parties entered into the Stipulation in Arizona, the Defendants are
senior officials of the Arizona Department of Corrections, and the
Stipulation concerns the policies and practices of the Arizona
prison system.
Here, the Stipulation is clear on the limits of the district
court's authority to enforce the Stipulation. The relevant
provision, Paragraph 36, provides that the Court shall retain the
power to enforce this Stipulation through all remedies provided by
law, except that the Court shall not have the authority to order
the Defendants to hire a specific number or type of staff unless
Defendants propose to do so as part of a plan to remedy a failure
to comply with any provision of this Stipulation. Under this
provision, the district court could not, for example, order the
Defendants to hire 20 additional employees at the Yuma facility or
10 additional registered nurses at the Tucson facility.
However, Paragraph 36 does not, by its plain language, preclude the
district court from ordering Defendants to develop and implement a
plan to increase staffing in general. Such a general staffing order
would not, without more, violate the Stipulation because Defendants
would retain discretion over the specific number and type of
personnel to hire pursuant to such an order. For example, the
Defendants could develop a plan that relied on a small number of
new hires, while emphasizing structural reforms to the prison
health care delivery system. Or, the Defendants could develop a
plan that relied on significant increases in hiring in one specific
job category, while leaving other staffing levels in place.
Regardless of the Defendants' specific decisions, the key is that a
general staffing order would not bind Defendants to hire a specific
number or type of staff dictated by the district court. That
decision would remain within Defendants' discretion.
Therefore, the Court concludes the plain language of the
Stipulation permits the district court to order Defendants to
develop a general staffing plan. The district court's contrary
conclusion was error.
The Defendants make two arguments for why the district court's
interpretation of the Stipulation is correct. First, the Defendants
advance the position the district court accepted below: that an
order to develop a plan to increase staffing in general is the
functional equivalent of an order requiring a specific number and
type of staff.
The Court disagrees.
A general staffing order by the district court would not intrude
upon the Defendants' discretion to determine the specific number or
type of staff they believe is appropriate. As explained earlier,
the Defendants could develop a plan that places more emphasis on
structural changes than on new hires, or a plan that limits new
hires to a specific job category. Although it is true that a
general staffing order would require Defendants to make staff
hiring part of the solution, it would preserve Defendants'
discretion to determine the number and type of staff to hire as
part of that solution.
Accordingly, the Court rejects the argument that a general staffing
order is the functional equivalent of an order to hire a specific
number and type of staff.
Second, the Defendants contend the Court must defer to the district
court's interpretation because that interpretation was based on the
district court's first-hand understanding of the parties' intent.
But the Defendants' reference to the district court's understanding
of the parties' intent is to a statement the court made during a
status hearing months before the court's written order. The Court
do not review oral statements from the bench on a matter later
committed to writing; the Court reviews instead the written order
entered by the district court. In his written order, the magistrate
judge concluded he could not enter a general staffing order on the
ground that such an order would necessarily involve ordering a
specific number or type of staff. This order which followed
briefing by the parties makes no mention of the district court's
understanding of the parties' intent. Under these circumstances,
the Court will not treat the district court's earlier oral remarks
as a basis for its later written decision.
In sum, the Court concludes the district court erred in
interpreting the Stipulation as precluding it from ordering
Defendants to develop and implement a plan to increase staffing in
general. The Court therefore reverse the district court's February
3, 2017 order. Consistent with our ruling, the district court may,
in future proceedings, consider whether a general staffing order
that does not require Defendants to hire a specific number or type
of staff is an appropriate remedy for Defendants' non-compliance.
A full-text copy of the Ninth Circuit's December 20, 2018 Opinion
is available at https://tinyurl.com/y99cwfum from Leagle.com.
Nicholas D. Acedo -- nacedo@swlfirm.com -- (argued), Rachel Love --
rlove@strucklove.com -- and Daniel P. Struck --
dstruck@strucklove.com -- Struck Wieneke & Love P.L.C., Chandler,
Arizona; Michael E. Gottfried, Assisant Attorney General; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Defendants-Appellants.
Donald Specter (argued), Rita K. Lomio, Corene Kendrick, Alison
Hardy, and Mae Ackerman-Brimberg, Prison Law Office, Prison Law
Office, General Delivery, San Quentin, CA 94964; Amy Fettig
(argued) and David C. Fathi, ACLU National Prison Project; Amelia
M. Gerlicher -- AGerlicher@perkinscoie.com -- and Daniel C. Barr --
Dbarr@perkinscoie.com -- Perkins Coie LLP, Phoenix, Arizona;
Kathleen E. Brody -- kbrody@acluaz.org -- ACLU Foundation of
Arizona, Phoenix, Arizona; Rose A. Daly-Rooney --
rdalyrooney@azdisabilitylaw.org -- and Maya Abela --
mabela@azdisabilitylaw.org -- Arizona Center for Disability Law,
Tucson, Arizona; for Plaintiffs-Appellees.
AT&T INC: Reconsideration of Seaman Class Claims Dismissal Denied
-----------------------------------------------------------------
In the case, ROY HOROWITZ, LINDA LARSON, KEMPTEN POLLARD, KATHERINE
SEAMAN, and KATHLEEN SWEENEY, Plaintiffs, v. AT&T INC., AT&T CORP.,
AT&T SERVICES, INC., and AT&T MOBILITY SERVICES LLC, Defendants,
Civil Action No. 3:17-cv-4827-BRM-LHG (D. N.J.), Judge Brian R.
Martinotti of the U.S. District Court for the District of New
Jersey denied Plaintiff Katherine Seaman's Motion for
Reconsideration seeking reconsideration of the April 25, 2018 Order
and Opinion, which dismissed her collective action allegations.
Before the Court is Seaman's Motion for Reconsideration seeking
reconsideration of the dismissal of her collective action
allegations. Seaman argues: (1) she has articulated facts that
plausibly demonstrate that the General Release's Class, Collective
or Representative Action Waiver is unenforceable; (2) the Court's
prior decision overlooked her argument that a severance agreement's
waiver of right to proceed collectively is per se unenforceable;
and (3) that the Court's prior ruling is clear error of law and
invites intentional evasion of the OWNPA's protections against
abusive waiver practices.
The Defendants argue Seaman's Motion for Reconsideration is just a
repackaged version of the arguments originally advanced.
Specifically, they argue they do not identify any intervening
change in controlling law or new evidence.
Judge Martinotti agrees with the Defendants. He finds that
Seaman's Motion does not assert there has been an intervening
change in the controlling law or that there is new evidence
available that was not available when the Court issued prior
Opinion. Instead, Seaman's Motion is merely an attempt to cloak
mere disagreement of the Court's prior Opinion with arguments of
"clear error" and "manifest injustice." Accordingly, he denied
Seaman's Motion for Reconsideration.
In the alternative, Seaman seeks permission to file an
interlocutory appeal pursuant to 28 U.S.C. Section 1292, as to the
question of whether a waiver in which an older worker who was
terminated in a group layoff agrees not to bring, maintain or
participate in any ADEA collective action or representative action
is enforceable when it is contained in a post-dispute release
agreement which does not contain a mandatory arbitration clause and
which also contains an ADEA claims waiver.
Because the question Seaman seeks to certify for interlocutory
appeal was based on the erroneous assumption that the Court
"overlooked" certain case law and facts, and the Court has now
clarified the Opinion, the Judge denied Seaman's reques
A full-text copy of the Court's Jan 2, 2019 Opinion is available at
https://is.gd/ayLFhM from Leagle.com.
ROY HOROWITZ, KATHERINE SEAMAN & KATHLEEN SWEENEY, on behalf of
themselves individually and on behalf of those similarly situated,
Plaintiffs, represented by DANIEL S. ORLOW -- orlow@consolelaw.com
-- CONSOLE MATTIACI LAW, LLC, EMILY ROSE DERSTINE FRIESEN --
derstinefriesen@consolelaw.com -- CONSOLE MATTIACCI LAW LLC, SUSAN
M. SAINT-ANTOINE -- santanto@consolelaw.com -- CONSOLE MATTIACCI
LAW, LLC, BRIAN CHARLES FARRELL -- farrell@consolelaw.com --
Console Mattiacci Law, LLC & STEPHEN G. CONSOLE --
console@consolelaw.com -- CONSOLE MATTIACCI LAW, LLC.
AT&T, INC., AT&T CORP., AT&T SERVICES, INC. & AT&T MOBILITY
SERVICES, LLC, Defendants, represented by ANGELO JOSEPH GENOVA --
agenova@genovaburns.com -- Genova Burns LLC & JAMES BUCCI --
jbucci@genovaburns.com -- GENOVA BURNS LLC.
AVIVA: Faces Class Action in Canada Over Insurance Claims
---------------------------------------------------------
Erik White, writing for CBC News, reports that right after it
happened, Bill Elliott says it felt like someone "whacked me across
the neck with a baseball bat."
But the pain hasn't gone away in the two years since the taxi cab
he was driving was hit by a car running a red light at a North Bay
intersection in 2016.
The 53-year-old hasn't worked or driven since then, because of pain
in his head that "feels like ice picks going through" and
short-term memory loss.
"Imagine you had Alzheimer's all of a sudden, then you had a lucid
moment, then Alzheimer's, then a lucid moment," says
Mr. Elliott.
He has gone through $30,000 of the $50,000 in treatment he's
entitled to under his insurance plan, but he has learned that the
company may not be providing everything he's paid for.
Mr. Elliott has joined a class action lawsuit alleging that the six
major insurance companies have counted sales tax on certain
services toward the total amount a customer is allowed to claim.
The suit alleges that means that people lose out on treatment,
while the companies add millions of dollars to their profits.
"Foolishly, I believed that the insurance company was fulfilling
their obligations that were guaranteed under the law, but of course
they weren't. They'll do everything they can to pinch a penny out
of you, but they don't want to pay when you need it," says Elliott,
who has been told he will have to deal with his injuries for the
rest of his life.
"We're forced to pay whether we want to or not, but we're not
getting what we paid for."
For many of the dozen or so claimants, this means they pay for more
of their treatments out of their own pockets.
"Visa and you find a way to pay for it. Visa, visa, visa and make
those payments," says 47-year-old Mark Cicciarelli of North Bay.
He still has neck pain two years after his van was rear-ended and
since the insurance money ran out, has been paying for massage
therapy and acupuncture himself so he can keep working for the
family plumbing business.
Mr. Cicciarelli says he "wasn't happy" when his lawyer told him
about the insurance company not covering the harmonized sales tax.
"I would have gotten a good week's worth of work with that kind of
relief," he says.
It's been three years since Shelli Black's car was hit by a taxi at
a North Bay intersection.
The 26-year-old from Callander hasn't been able to work as a
personal support worker since then because of recurring headaches.
She says it's hard "being so young" and "having to depend on
others" to provide for her growing family.
"It just adds another stress on top of trying to cope, trying to
heal," says the mother of two, who is expecting a third child.
"Like I'm not better and I'm not receiving treatment, it's
frustrating to have to fight for that."
Jay Ralston is one of the lawyers leading the class action against
six insurance companies and the Financial Services Commission of
Ontario, which regulates the industry.
He says the individual dollar amounts his clients are owed is often
small, but they add up to millions of dollars for the insurance
companies.
"It's just corporate greed at the expense of individuals who just
aren't in a position to fight for themselves," Ralston says.
The insurance companies named in the suit are Aviva, Intact,
Belair, Allstate, Unifund and Certas. Those that responded to CBC's
request for comment, say they can't because the matter is before
the courts.
"Unifund is committed to treating our customers fairly and our top
priority remains ensuring that injured motorists return to good
health," reads one statement.
"We can confirm that we are paying the HST and are not counting it
towards the cap, as per current [provincial] guidelines," says the
statement from Belairdirect and Intact.
"As this is before the courts, we cannot provide further details at
this time."
The Desjardins Group that owns Certas insurance says it is in the
process of reviewing the statement of claim and will be responding
to it in due course."
The Financial Services Commission of Ontario is also named in the
suit, which alleges the provincial agency knows the companies have
been breaking the law and has not levied fines, revoked licenses or
done anything else to intervene.
"They have the ability to stop it if they want to stop it, instead
of just turning a blind eye," says Ralston.
The commission also declined an interview, but released a statement
that says it "is aware of the recent statements of claim" but says
it can't comment further because it is before the courts. [GN]
BARCEL USA: Court Dismisses 1st Amended Morrison Suit
-----------------------------------------------------
In the case, AURORA MORRISON, on behalf of herself and others
similarly situated, Plaintiff, v. BARCEL USA, LLC, Defendant, Case
No. 18 CV 531 (VB) (S.D. N.Y.), Judge Vincent L. Bricetti of the
U.S. District Court for the Southern District of New York granted
the Defendant's motion to dismiss the first amended class action
complaint pursuant to Rules 12(b)(1) and 12(b)(6).
The Plaintiff brings the putative class action against the
Defendant for alleged violations of New York General Business Law
("GBL") Sections 349 and 350, and for common law fraud.
Essentially, she alleges she purchased two bags of Takis Rolled
Tortilla Chips -- one "Zombie" flavored and one Guacamole flavored
-- and the bags contained too much air and too few chips.
Now pending is the Defendant's motion to dismiss the first amended
class action complaint.
The Plaintiff seeks to enjoin the Defendant from packaging the
Product with non-functional slack fill (unnecessary empty space).
The Defendant argues the Plaintiff lacks standing to seek
injunctive relief under GBL Section 349 because she does not
plausibly allege a risk of future injury.
Judge Bricetti agrees. The Plaintiff alleges she and the putative
class members would not have purchased the Product at the given
price had they known the truth. Therefore, the Plaintiff cannot
show a likelihood of future injury. Accordingly, her claim for
injunctive relief under GBL Section 349 is dismissed.
The Plaintiff alleges the Defendant violated GBL Sections 349 and
350 and committed fraud by increasing the size of the Product's
bags, and filling them with empty space to make it appear to
consumers that they are buying more chips than are being sold. The
Defendant argues the Plaintiff's claims fail because she does not
plausibly allege the slack fill is non-functional.
The Judge again agrees. He finds that the Pplaintiff does not
allege any facts supporting its allegation that the slack fill is
non-functional. Instead, she alleges only that the slack fill in
the Product—approximately 59% is significantly greater than the
amount of slack fill in its competitor's allegedly similarly sized
Doritos bag, which contains approximately 43t slack fill.
Therefore, according to her, some of the slack fill in the Product
must be non-functional.
The Judge is not persuaded. First, the Plaintiff fails to cite any
Second Circuit authority relying on a comparison of similar
products to uphold a claim for non-functional slack fill. Second,
Food and Drug Administration guidance is inconsistent with the
approach, recognizing "there is significant variability in the
amount of the slack-fill in packages, both between and within
commodity classes and even within a single-product line. And
third, the Judge is particularly skeptical of employing such an
approach when the Plaintiff's only other allegations as to
non-functional slack-fill (besides the comparison to the Doritos
bag) are wholly conclusory.
In addition, he disagrees with the Plaintiff's argument that just
because the Product has more slack fill than the Doritos bag, the
additional slack fill in the Product is ipso facto non-functional.
The Plaintiff must allege more than that there simply is a
difference in slack fill. She must allege facts demonstrating the
additional slack fill is non-functional.
Moreover, he finds that the Plaintiff fails to allege whether the
ingredients, surfaces, or size of the chips are similar. And the
Plaintiff's remaining allegations comparing the products are
conclusory; the Plaintiff essentially repeats that the products are
the same, stating, the comparison is between the same kind of
Product in the same kind of packaging that is enclosed in the same
way by the same kind of technology. However, r]epeatedly asserting
that the products are the 'same' does not make them so.
Accordingly, the Plaintiff's claims under GBL Sections 349 and 350
and for common law fraud are dismissed. Judge Bricetti granted the
motion to dismiss. The Clerk is instructed to terminate the motion
and close the case.
A full-text copy of the Court's Jan 2, 2019 Opinion and Order is
available at https://is.gd/Wx6VX8 from Leagle.com.
Aurora Morrison, on behalf of herself and others similarly
situated, Plaintiff, represented by Anne Melissa Seelig, Lee
Litigation Group, PLLC & C.K. Lee -- cklee@leelitigation.com -- Lee
Litigation Group, PLLC.
Barcel USA, LLC, Defendant, represented by Thomas E. Fox --
thomas.fox@skadden.com -- Skadden, Arps, Slate, Meagher & Flom LLP,
Jessica D. Miller -- jessica.miller@skadden.com -- Skadden, Arps,
Slate, Meagher & Flom LLP & John H. Beisner --
john.beisner@skadden.com -- Skadden, Arps, Slate, Meagher & Flom
LLP.
BARCLAYS BANK: Sued over Collection of Annual Membership Fees
-------------------------------------------------------------
NEAL A. ROBERTS, the Plaintiff, vs. BARCLAYS BANK DELAWARE AND DOES
1-10, the Defendants, Case No. 30-2019-01041495-CIJ-BT-CXC (Cal.
Super. Ct., Jan. 3, 2018), seeks to:
-- permanently enjoin Defendants from collecting annual
membership fees and late fees from clients of the Plaintiff
classes who had closed their card accounts but who continued
to (i) be charged annual membership fees, (ii) late fees,
and (iii) both annual membership fees and late fees;
-- impose a constructive trust on all amounts by which
Defendants were unjustly enriched as a result of collecting
the Annual Membership Fees and Late Fees; and
-- recover as damages and/or restitution all annual membership
fees and late fees heretofore paid by clients of the
plaintiff classes, pursuant to California Code of Civil
Procedure section 382, California Civil Code section 1781 et
seq., and California Business and Professions Code section
17200.
According to the complaint, from and after November 1, 2013,
Plaintiffs closed their accounts but continued to be charged annual
membership fees ($89) and late fees ($27) even though their card
was never used and was closed shortly after being opened. The
Annual Membership Fees and Late Fees have generated substantial
revenues and profits for Barclays and its parents and affiliates.
Barclays Bank Delaware, through its subsidiary Barclay card US,
provides customized and co-branded credit card programs for travel,
entertainment, retail, affinity, and financial institutions in the
United States.[BN]
Attorneys for Plaintiff:
Anthony G. Graham, Esq.
GRAHAM & MARTIN, LLP
2901 West Coast Highway, Suite 200
Newport Beach, CA 92663
Telephone: (949) 270-2792
Facsimile: (949) 270-2793
E-mail: anthonvggraham@msn.com
BE AMAZED: Has Until Feb. 1 to Respond to Lynch Suit
----------------------------------------------------
In the case, DALLAS LYNCH, on behalf of herself and all others
similarly situated; Plaintiff, v. BE AMAZED SANDWICH CO.,INC. d/b/a
AND a/k/a CAPRIOTTI'S SANDWICH SHOP; MICHAEL SOLOMON, an
individual; DOES 1 through 50; inclusive, Defendant(s), Case No.
2:18-cv-2425-APG-GWF (D. Nev.), Magistrate Judge George Foey, Jr.
of the U.S. District Court for the District of Nevada has issued a
stipulated order extending the Defendants's time to answer or
otherwise respond to the Plaintiff's Complaint up to and including
Feb. 1, 2019.
The Complaint sets forth a purported class action, and the
Defendants will need further time to investigate the facts,
especially because of the holiday and defense counsel being on
vacation from Jan. 9-17, 2019. An extension will also allow the
parties to discuss potential resolution of the case, if warranted.
It's the first request for an extension of the deadline.
A full-text copy of the Court's Jan 1, 2019 Order is available at
https://is.gd/bb6ylv from Leagle.com.
Dallas Lynch, Plaintiff, represented by Christian James Gabroy,
Gabroy Law Offices & Kaine M. Messer -- kmesser@gabroy.com --
Gabroy Law Offices.
Be Amazed Sandwich Co., Inc., also known as Capriotti's Sandwich
Shop, Capriotti's Sandwich Shop & Michael Solomon, Defendants,
represented by Scott M. Mahoney -- smahoney@fisherphillips.com --
Fisher & Phillips, LLP.
BECTON DICKINSON: Marion Diagnostic Filed Appeal in 7th Cir.
------------------------------------------------------------
In the class action lawsuit captioned MARION DIAGNOSTIC CENTER,
LLC; MARION HEALTHCARE, LLC; and ANDRON MEDICAL ASSOCIATES,
individually and on behalf of all others similarly situated, the
Plaintiffs, vs. BECTON, DICKINSON, AND COMPANY; PREMIER, INC.;
VIZIENT, INC.; CARDINAL HEALTH, INC.; OWENS & MINOR DISTRIBUTION,
INC.; MCKESSON MEDICAL-SURGICAL INC.; HENRY SCHEIN, INC.; and
UNNAMED BECTON DISTRIBUTOR CO-CONSPIRATORS, the Defendants, Case
No. 18-3735 (S.D. Ill.), the Plaintiffs appeal to the United States
Court of Appeals for the Seventh Circuit from the judgment entered
November 30, 2018, and from all prior merged orders and rulings.
The Order dated November 30, 2018, granted Defendants' motion to
dismiss. The Plaintiffs' amended complaint is dismissed with
prejudice. The entire action is dismissed, and the case is closed.
Attorneys for Plaintiffs:
Steven F. Molo, Esq.
Allison M. Gorsuch, Esq.
Justin M. Ellis, Esq.
MOLOLAMKEN LLP
300 N. LaSalle St.
Chicago, IL 60654
- and -
R. Stephen Berry, Esq.
BERRY LAW PLLC
1717 Pennsylvania Ave., N.W., Suite 850
Washington, D.C. 2006
BETHESDA SOFTWORKS: Customer Sue Over Cheap Duffel Bag Material
---------------------------------------------------------------
Alex Meyer, individually and on behalf of all others similarly
situated, Plaintiff, v. Bethesda Softworks LLC, d/b/a Bethesda Game
Studios, Defendant, Case No. RG19002237 (Cal. Super. Ct., Alameda
Cty., January 11, 2019) is a class action under California Code of
Civil Procedure, seeking damages, including restitution and
reasonable attorneys' fees and costs, caused by negligent
misrepresentations of the Defendant in connection with the
marketing of the Power Armor Edition of Fallout 76 to Plaintiff and
a proposed nationwide class of individuals who purchased the Power
Armor Edition in reasonable reliance on Bethesda's representations
and whose reliance on Bethesda's misrepresentations was a
substantial factor in causing them harm.
Bethesda manufactured, packaged, marketed, advertised, sold, and
distributed the Power Armor Edition online through various retail
channels throughout the United States, including but not limited to
Amazon, Wal-Mart, and Target.
However, the Defendant made false, deceptive and misleading claims
regarding the materials used for the West Tek Duffel Bag that was
marketed-as one of the items included for sale in the Power Armor
Edition. Defendant created and/or authorized the false, misleading,
and deceptive marketing materials for the Power Armor Edition that
falsely claimed that the West Tek Duffel Bag was made of canvas,
when it in fact was made out of nylon, a cheaper material of lower
quality, says the complaint.
Plaintiff Alex Meyer is a California resident who resides in
Cameron Park, California. During the Class Period, Plaintiff Meyer
purchased the Power Armor Edition.
Bethesda Softworks LLC d/b/a Bethesda Game Studios is a subsidiary
of Zeni Max Media Inc., a Delaware Corporation with its principal
place of business at 1370 Piccard Drive, Rockville, Maryland
20850.[BN]
The Plaintiff is represented by:
Julian Hammond, Esq.
Polina Brandler, Esq.
Ari Cherniak, Esq.
HammondLaw, P.C.
1829 Reisterstown Rd, Suite 410
Baltimore, MD 21208
Phone: (310) 601-6766
Facsimile: (310) 295-2385
Email: jjhammond@hammondlawpc.com
pbrandler@hammondlawpc.com
acherniak@hammondlawpc.com
BRIARCLIFF BUS: Alvarez Sues to Recover Overtime Pay
----------------------------------------------------
Pablo Alvarez, on behalf of himself and others similarly situated,
Plaintiff, v. Briarcliff Bus Company, Inc. and John Borho,
individually, Defendants, Case No. 18-cv-12379 (S.D. N.Y., December
31, 2018), seeks to recover unpaid minimum wages, spread-of-hours
wages, earned wages and overtime compensation together with
liquidated damages, compensatory damages, pre-judgment and
post-judgment interest and attorneys' fees and costs under the Fair
Labor Standards Act and New York Labor Law.
Briarcliff Bus Company, Inc. is a transportation company that
contracts primarily with schools to transport students in
Westchester County, New York. Alvarez worked as a bus driver from
September 1995 up to his termination in August 2018. He worked more
than forty hours per week but was never paid overtime for her hours
worked in excess of forty hours per week. Throughout his
employment, Briarcliff did not require him to "clock in" using
their time tracking device but was required him to "clock out" by
calling a manager to inform him that his shift had ended. [BN]
Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, Suite 307
New York, NY 10007
Telephone: (212) 323-6980
Facsimile: (212) 233-9238
Email: jaronauer@aronauerlaw.com
BRIGHAM EXPLORATION: Boytim's 3rd Bid to Certify Class Denied
-------------------------------------------------------------
In the case, Raymond Boytim, Hugh Duncan, Walter Schwimmer, the
Edward J. Goodman Life Income Trust and the Edward J. Goodman
Generation Skipping Trust, Jeffrey Whalen, and Howard Weissberg,
Appellants, Brigham Exploration Company, Ben M. Brigham, David T.
Brigham, Harold D. Carter, Stephen P. Reynolds, Stephen C. Hurley,
Hobart A. Smith, Scott W. Tinker, Statoil ASA, and Fargo
Acquisition, Inc., Cross-Appellants, v. Brigham Exploration
Company, Ben M. Brigham, David T. Brigham, Harold D. Carter,
Stephen C. Hurley, Stephen P. Reynolds, Hobart A. Smith, Scott W.
Tinker, Statoil ASA, and Fargo Acquisition, Inc., Appellees,
Raymond Boytim, Hugh Duncan, Walter Schwimmer, the Edward J.
Goodman Life Income Trust and the Edward J. Goodman Generation
Skipping Trust, Jeffrey Whalen, and Howard Weissberg,
Cross-Appellees, Case No. 03-17-00722-CV (Tex. App.), Judge David
Puryear of the Court of Appeals of Texas for the Third District,
Austin, affirmed the trial court's Order denying the Plaintiffs'
renewed motion for class certification.
The instant motion is an interlocutory appeal of an order of the
trial court denying a motion to certify a class filed by the
Plaintiffs. The Appellants filed suit against the Appellees for
breach of fiduciary duty in connection with the sale of Brigham
Exploration Co.
The Appellees have filed a conditional cross-appeal to the extent
necessary to preserve all arguments for affirming the trial court's
order in the event that the Court disagrees with the particular
grounds reflected in the trial court's order.
The appeal is the third time that the issue of class certification
in the dispute has been before the Court. The dispute underlying
the lawsuit stems from the sale of Brigham, a Delaware public
corporation headquartered in Texas, to Statoil ASA, a Norwegian
multinational oil and gas company, via a cash tender offer of
$36.50 per share.
The Appellants, who allegedly continuously held some amount of
Brigham stock from before the announcement of the acquisition
through the close of the deal, allege that the now-former members
of Brigham's board of directors breached their fiduciary duties
under Delaware law by agreeing to and effectuating the cash-out
merger—specifically by engaging in self-dealing, "consciously
disregarding" the company's value, agreeing to inadequate
consideration for the company, and taking unreasonable steps to
ensure consummation" of the deal by agreeing to a number of
"problematic deal protection devices" in the acquisition agreement.
They also allege that Brigham and Statoil aided and abetted the
board members' breaches of fiduciary duties in connection with the
buyout and that Brigham failed to disclose material information and
disclosed materially false and misleading information to the
stockholders in its required SEC filings issued in conjunction with
the merger.
The Appellees assert numerous affirmative defenses including,
ratification, acquiescence, estoppel, waiver, and accord and
satisfaction.
Shortly after filing suit, the Plaintiffs moved, for the first
time, for class certification. The trial court signed an order
granting the class certification, but the Court reversed the order
on appeal, determining that the trial plan was insufficient. After
remand, the Plaintiffs renewed their motion, and the trial court
entered a subsequent order granting the class certification. The
Court again reversed, holding that the class was not sufficiently
defined because it included members who lack standing. After a
second remand, the Plaintiffs again renewed their motion.
In support of their renewed motion, the Plaintiffs submitted a
proposed trial plan with a revised class definition: All holders of
Brigham common stock who held continuously from 7:00 p.m. (CST) on
Oct. 16, 2011 through the effective time of the merger with
Statoil. They also proposed a subclass defined as all holders of
Brigham common stock who held continuously from 7:00 p.m. (CST) on
Oct. 16, 2011 through the effective time of the merger with Statoil
and did not tender their shares in Statoil's offer, but who were
automatically cashed out when the merger was consummated. Other
than the change to the class definition, the Plaintiff's proposed
trial plan remained largely unchanged from their previous one.
The third time, however, the trial court denied the motion to
certify, on the following grounds: (1) the Court cannot determine
that the common issues predominate over the individual issues and
(2) the Court cannot determine whether class action is superior to
individual actions to achieve a fair and efficient adjudication of
the controversy.
The Appellants contend on appeal that the trial court abused its
discretion in denying their motion to certify.
Judge Puryear concludes that the trial court did not abuse its
discretion in denying the Appellants' motion for class
certification. In addition to the Plaintiffs' failure to satisfy
the predominance prerequisite, he additionally concludes that the
trial court did not abuse its discretion in finding that it cannot
determine whether class action is superior to individual actions to
achieve a fair and efficient adjudication of the controversy.
Accordingly, the Judge affirmed the trial court's Order denying the
Plaintiffs' renewed motion for class certification.
A full-text copy of the Court's Dec. 28, 2018 Memorandum Opinion is
available at https://is.gd/AeD2HI from Leagle.com.
Michael D. Marin -- mmarin@boulettegolden.com -- Hamilton Lindley,
Randall J. Baron, Mark S. Reich, Denis F. Sheils --
dsheils@kohnswift.com -- Marc L. Ackerman, James M. Ficaro, Willie
Charles Briscoe, Samuel H. Rudman, Richard A. Maniskas, Katherine
M. Ryan, Shane T. Rowley, Evan J. Smith, Patricia C. Weiser,
Michael G. Capeci -- mcapeci@rgrdlaw.com -- for Jeffrey Whalen,
Howard Weissberg, The Edward J. Goodman Life Income Trust and the
Edward J. Goodman Generation Skipping Trust, Walter Schwimmer,
Raymond Boytim and Hugh Duncan, Appellants.
Nathan Palmer -- nrp@racinelaw.net -- Mackenzie Wallace --
Mackenzie.Wallace@tklaw.com -- Melissa M. Davis, Debora B. Alsup --
Debora.Alsup@tklaw.com -- Michael Warren Stockham, Timothy R.
McCormick, for Stephen C. Hurley, Appellees.
Timothy R. McCormick, Mackenzie Wallace, Michael Warren Stockham,
Nathan Palmer, Timothy Eugene Hudson, Debora B. Alsup, Melissa M.
Davis, for Stephen P. Reynolds, Brigham Exploration Company, Ben M.
Brigham, Hobart A. Smith, Harold D. Carter and David T. Brigham,
Appellees.
Fields Alexander, Russell S. Post, Timothy R. McCormick, Parth S.
Gejji, Debora B. Alsup, Timothy Eugene Hudson, Michael Warren
Stockham, Christopher Cowans, for Scott W. Tinker, Statoil ASA and
Fargo Acquisition, Inc. Appellee.
BRISTOL COUNTY, MA: Claims in Inmate Telephone Service Suit Trimmed
-------------------------------------------------------------------
The United States District Court for the District of Massachusetts
issued a Memorandum and Order granting in part and denying in part
Defendant's Motion to Dismiss the cases captioned KELLIE PEARSON,
ROGER BURRELL, BRIAN GIVENS, and THE LAW OFFICES OF MARK BOOKER, on
behalf of themselves and those similarly situated, Plaintiffs, v.
THOMAS M. HODGSON, individually and his official capacity as
Sheriff of Bristol County, and SECURUS TECHNOLOGIES, INC.,
Defendants. Civil Action No. 18-cv-11130-IT. (D. Mass.).
This case challenges costs imposed by a provider of inmate
telephone services on the recipients of telephone calls made by
inmates in Bristol County, Massachusetts, and paid by the provider
as commissions to the Bristol County Sheriff's Office. The
Plaintiffs filed this putative class action Complaint in the
Massachusetts Superior Court alleging that payments made by Securus
to the Sheriff's Office violate Massachusetts state law and the
Massachusetts Constitution.
Counts I through IV of the Plaintiffs' Complaint are brought
against Sheriff Hodgson. Count I seeks a declaratory judgment that
the monthly site commissions and lump sum payments included in
Securus's contract with the Bristol County contract is contrary to
Massachusetts State law and the Supreme Judicial Court's Decision
in Souza v. Sheriff of Bristol County, 455 Mass. 573, 918 N.E.2d
823 (2010). Compl. Count II seeks a declaratory judgment that
inflated Inmate Calling Services phone charges that the Plaintiffs
paid are unlawful taxes or unlawful fees. Count III alleges that
the Sheriff's Office engaged in ultra virestaxation for which it
does not have statutory authority, in violation of Part I, Article
XXIII of the Massachusetts Constitution. Count IV alleges that, in
the alternative to Count III, the Sheriff's Office extracted
unlawful fees from Plaintiffs for which it has no statutory
authority to charge, in violation of Mass. Gen. Laws ch. 126,
Section 29.
The court allows in part and denies in part Sheriff Hodgson's
Motion to Dismiss and Securus's Motion to Dismiss.
As the motions pertain to claims for injunctive relief on behalf of
Plaintiffs Burrell and Givens, both motions are allowed. To the
extent that the Plaintiffs' Complaint asserts claims against
Sheriff Hodgson in his individual capacity or seeks monetary
damages from Sheriff Hodgson in either his individual or official
capacity, Sheriff Hodgson's motion is allowed. Sheriff Hodgson's
motion is otherwise denied. Securus's motion is allowed as it
relates to count V for conversion, but is denied as it pertains to
count VI under Mass. Gen. Laws ch. 93A.
In counts II, III, and IV, the Plaintiffs further challenge the
legal status of payments made by Securus to the Sheriff's Office,
to the extent that they are funded by increasing the cost of Inmate
Calling Services well beyond the true cost of providing the
service. Plaintiffs allege that Sheriff Hodgson is improperly
collecting revenue, in the form of an unlawful fee or unlawful tax
on the end users, through a third-party intermediary without having
the statutory authority to do so.
Sheriff Hodgson states that these claims must be dismissed because
the site commissions were voluntary payments by Securus not
associated with any government benefit and therefore, because they
were not mandatory, are not an unlawful tax. Sheriff Hodgson
further argues that the contractual terms with Securus were not
fees because the payments were not in exchange for a governmental
service, and, even if construed as fees, were not unlawful.1 Id. at
11-16.
Regardless of whether they are considered a fee or a tax,
Plaintiffs' allegations provide plausible grounds that the site
commissions and lump sum payments were unlawful monetary payments
exacted from them and other Inmate Calling Services consumers
without legislative authority.
The Plaintiffs have alleged, and the court accepts as true for
purposes of this motion, that at the public bidding process, the
Sheriff's Office required payments from any potential Inmate
Calling Services provider beyond any real costs that the Sheriff's
Office incurs to provide Inmate Calling Services.
Given these allegations, in light of the court's finding as to
count 1, see supra Part V (A), Plaintiffs have complied with
Federal Rule of Civil Procedure 8(a)(2)'s pleading requirement that
Plaintiffs plead factual content which allows the court to draw the
reasonable inference that Defendants are liable for the misconduct
alleged.
Sheriff Hodgson's Motion to Dismiss is denied as to counts II, III,
and IV.
In count V, the Plaintiffs allege that Securus coerced or otherwise
took the Plaintiffs' money, in the amount of the inflated cost for
the Inmate Calling Services from the Bristol County Correctional
Facilities, without the legal authority to do so. Securus argues
that count V must be dismissed because Plaintiffs' allegations do
not meet the necessary elements of the tort of conversion.
Specifically, Securus argues that their conduct is not wrongful
because Plaintiffs voluntarily accepted and paid for Securus's
Inmate Calling Services without any misrepresentation or fraud by
Securus.
To prove the tort of conversion under Massachusetts law, Plaintiffs
must show that Securus (1) exercised ownership or control over the
plaintiffs' personal property (2) intentionally and wrongfully and
(3) at the time when the Securus had no legal right of possession
over that property.
Here, while the Plaintiffs may, and do, argue that the increased
rate was unfair, they have failed to sufficiently plead that
Securus committed the tort of conversion. The court need not accept
as true Plaintiffs' charge that Securus coerced them in to paying
the charged fee for Inmate Calling Services without appropriate
factual support to establish a plausible claim of conversion.
Securus's Motion to Dismiss is allowed in regard to count V.
A full-text copy of the District Court’s December 20, 2018
Memorandum and Order is available at https://tinyurl.com/yany74yj
from Leagle.com.
Kellie Pearson, Roger Burrell, Brian Givens & The Law Offices of
Mark Booker, Plaintiffs, represented by Stuart T. Rossman, National
Consumer Law Center, Bonita P. Tenneriello, Prisoners' Legal
Services, Brian Highsmith, National Consumer Law Center, pro hac
vice, Elizabeth A. Ryan -- eryan@baileyglasser.com -- Bailey &
Glasser LLP, Joanna K. Darcus, National Consumer Law Center, pro
hac vice, John J. Roddy -- jroddy@baileyglasser.com -- Bailey &
Glasser LLP & Roger J. Bertling -- rbertlin@law.harvard.edu --
Legal Services Center.
Thomas M Hodgson, Individually and In His Official Capacity as
Sheriff Of Bristol County, Defendant, represented by Elizabeth B.
Herrington -- beth.herrington@morganlewis.com -- Morgan, Lewis &
Bockius LLP & Robert M. Novack, Law Office of Robert M. Novack.
Securus Technologies, Inc., Defendant, represented by Jason D.
Frank -- jason.frank@morganlewis.com -- Morgan, Lewis & Bockius
LLP, Amanda V. McGee -- amanda.mcgee@morganlewis.com -- Morgan,
Lewis & Bockius LLP, Elizabeth B. Herrington --
beth.herrington@morganlewis.com -- Morgan, Lewis & Bockius LLP, pro
hac vice & Megan R. Braden -- megan.braden@morganlewis.com --
Morgan, Lewis & Bockius LLP, pro hac vice.
BRITISH COLUMBIA: Gov't Faces Class Action Over Grizzly Hunting Ban
-------------------------------------------------------------------
The Canadian Press reports that the operator of a guide outfitting
company has filed a proposed class-action lawsuit against the
British Columbia government over the ban on grizzly bear hunting.
Ron Fleming, owner of Love Bros. & Lee, is seeking compensation for
all B.C. guide outfitting businesses allegedly harmed by the
hunting ban.
The lawsuit filed in B.C. Supreme Court names the Ministry of
Forests, Lands, Natural Resource Operations and Rural Development
and the minister, Doug Donaldson, alleging the province
inappropriately closed the hunt over public opinion and for
political or social reasons.
The statement of claim alleges the government knew its decision
would harm the 2,000 people directly employed by 245 guide
outfitting businesses, especially those with licences to hunt
grizzlies or who lost business when the ban was announced in 2017.
The lawsuit says prior to the ban, fewer than two per cent of the
bears in B.C. were hunted each year and the number of grizzlies has
been increasing across the province.
None of the allegations have been proven in court and a statement
of defence has not been filed.
The provincial government did not immediately respond to a request
for comment.
First Nations who hunt for treaty rights or for food, social and
ceremonial reasons were exempted from the ban.
When it went into effect, Donaldson said it was "no longer socially
acceptable to the vast majority of British Columbians to hunt
grizzly bears."
Environment Minister George Heyman also cited research suggesting
the economic impact of bear viewing is far greater than hunting,
both for revenue and job creation.
The statement of claim says there was no government consultation
about shutting down the hunt with guides, resident hunters or First
Nations. It asks for financial compensation for damages.
Chad Day, president of the Tahltan Central Government, which
represents the Tahltan and Iskut First Nations, says in a news
release they support the legal action.
"It has hurt our people culturally, economically and put many of
British Columbia's communities and dwindling ungulate and salmon
populations at further risk," Day says.
The court must first approve the class-action before it would be
allowed to continue.
The statement of claim says hunters pay as much as US$25,000 for a
guided grizzly bear hunt and when the ban was announced, many
outfitters had to cancel bookings already confirmed by deposit for
dates into 2021.
The court document says there are approximately 15,000 grizzly
bears in British Columbia, about 25 per cent of the entire grizzly
population in North America, and that the number of the bears has
remained stable for the last two decades.
It says government data shows hunting of up to nine per cent of
some grizzly populations is sustainable and that the Ministry of
Forests does not have the authority under the Wildlife Act to
regulate grizzly hunts "outside the scope of proper wildlife
management."
The statement of claim seeks a court order certifying a
class-action lawsuit, requests damages for negligent representation
and for "knowingly acting when they had no lawful reason to stop
the grizzly bear hunt on wildlife management or First Nations
grounds." [GN]
CALIFORNIA, CA: Flores Suit Dismissed with Leave to Amend
---------------------------------------------------------
In the case, ROSENDA FLORES, et al., Plaintiffs, v. CITY OF
CALIFORNIA CITY, et al., Defendants, Case No. 1:18-cv-00703-DAD-JLT
(E.D. Cal.), Judge Dale A. Drozd of the U.S. District Court for the
Eastern District of California (i) granted the Plaintiffs' request
to dismiss the class claim; and (ii) granted the Defendant City of
California's motion to dismiss.
The Plaintiffs in the action allege that the Defendants seized
them, arrested Plaintiff Flores, and searched the Plaintiffs' home
in violation of their constitutional rights. On Aug. 13, 2018, the
Defendants filed a motion to dismiss and/or strike portions of the
Plaintiffs' first amended complaint.
Judge Drozd referred the motion to the magistrate judge on Sept. 6,
2018. Following the hearing on the pending motion, the Plaintiffs
filed a request for dismissal of their class claims on Sept. 21,
2018.
On Sept. 25, 2018, the magistrate judge issued findings and
recommendations recommending that both parties' motions be granted.
Specifically, the magistrate judge found the Plaintiffs failed to
allege sufficient facts to support their Monell claims brought
under 42 U.S.C. Section 1983, and therefore recommended that their
claims against Defendant City of California be dismissed. The
magistrate judge also recommended that the Plaintiffs' request for
dismissal of their class claims be granted.
In addition, the magistrate judge determined that the Plaintiffs
had included material in their complaint only for harassment
purposes" and recommended the striking of allegations related to
Defendant's Huizar's previous arrest and conviction and claims that
he is a child molester. The parties were given 14 days to file any
objections to the findings and recommendations. On Oct. 4, 2018,
the Plaintiffs timely filed objections.
Having carefully reviewed the entire file, including the
Plaintiff's objections, Judge Drozd concludes the findings and
recommendations are supported by the record and by proper analysis.
Given the lack of factual allegations to support a conclusion that
the City maintains an unconstitutional policy or practice, he
adopts the recommendations of the magistrate judge, and dismisses
the Plaintiffs' Monell claims against the City with leave to
amend.
Finally, the Judge finds that the Plaintiffs have still failed to
explain how the alleged facts are relevant to the claimed
violations of their constitutional rights. Consequently, he will
adopt the findings and recommendations in this respect as well.
The allegations related to Defendant Huizar's prior conviction, his
prior firing and other inflammatory material—including reference
to the Defendant as corrupt, as having impregnated a minor, and
having unlawfully engineered the removal of the prior Chief of
Police -- will be stricken pursuant to Rule 12(f) of the Federal
Rules of Civil Procedure.
Accordingly, Judge Drozd adopted the findings and recommendations
issued Sept. 25, 2018. He granted (i) the Plaintiffs' request to
dismiss the class claims, and (ii) Defendant California City's
motion to dismiss. The allegations regarding Defendant Huizar's
previous arrest and conviction, and other inflammatory material,
are stricken. The Plaintiffs will file an amended complaint within
14 days of the date of service of the Order.
A full-text copy of the Court's Jan 2, 2019 Order is available at
https://is.gd/ixayID from Leagle.com.
Rosenda Flores, Juan Flores, Jesus Flores, Rosanna Flores & Ciriaco
Flores, Plaintiffs, represented by Olaf Arthur Landsgaard --
Olaf@OlafLegal.com -- Law Offices Of Olaf Landsgaard.
City of California City, Defendant, represented by Daniel J. Dubin,
Manning & Kass Ellrod Ramirez Trester, LLP & Eugene P. Ramirez --
epr@manningllp.com -- Manning & Kass Ellrod Ramirez Trester LLP.
Steven Whiting & Frank Garcia Huizar, Defendants, represented by
Daniel J. Dubin, Manning & Kass Ellrod Ramirez Trester, LLP.
CENTERPLATE INC: Marquez Suit Moved to N.D. California
------------------------------------------------------
A case, Renee Marquez on behalf of herself and on behalf of a Class
of all other persons similarly situated, the Plaintiff, vs.
Centerplate, Inc., a Delaware corporation and Centerplate of
Delaware, Inc., a Delaware corporation, the Defendants, Case No.
CGC-18-567402, was removed from the San Francisco Superior Court to
the U.S. District Court for the Northern District of California
(San Francisco) on Jan 3, 2019. The Northern District of California
Court Clerk assigned Case No.: 3:19-cv-00051 to the proceeding. The
suit alleges Fair Labor Standards Act violation.
Centerplate, Inc. is a food and beverage corporation serving
entertainment venues in North America, and the UK. Centerplate,
formerly known as Volume Services America, Inc., was originally a
division of Canteen corp.[BN]
The Plaintiff appears pro se.
Attorneys for Defendant:
Jeffrey D. Wohl, Esq.
PAUL HASTINGS LLP
101 California St. 48th Floor
San Francisco, CA 94111
Telephone: (415) 856-7000
Facsimile: (415) 856-7100
E-mail: jeffwohl@paulhastings.com
CHESTNUT HOLDINGS: De La Rosa Sues Over Unpaid Wages
----------------------------------------------------
Zenon De La Rosa, individually, and on behalf of all others
similarly situated, Plaintiff, v. Chestnut Holdings of New York
Inc., 1288 LLC, Jonathan Wiener, and all related entities,
Defendants, Case No. 8 1:19-cv-00286 (S.D. N.Y., January 10, 2019)
is a class/collective action, seeking unpaid wages, including
minimum wage and unpaid overtime compensation and interest thereon,
reimbursement for unlawful deductions, liquidated damages and other
penalties, injunctive and other equitable relief and reasonable
attorneys' fees and costs, under, inter alia, the Fair Labor
Standards Act ("FLSA").
The Defendants were and still are a centrally managed real estate
enterprise that owns, controls, and manages apartment buildings and
commercial properties in the New York Metropolitan Area, and during
the relevant time periods, the Chestnut Enterprise has employed
more than 100 superintendents, porters and handymen.
The complaint asserts that Chestnut Enterprise has applied common
employment practices, policies and procedures to Superintendents
and maintenance workers of the Buildings, including the Chestnut
Enterprise's practice of willfully refusing to compensate these
employees for all hours worked beyond the first 40 hours of work
per work week. Furthermore, the Chestnut Enterprise had a policy
and practice of requiring unlawful deductions from wages, including
its requirement that Superintendents, Porters and Handymen pay for
tools used solely for the benefit of the Defendants, in violation
the New York State Department of Labor for the building service
industry.
This Collective and Class Action seeks redress for state and
federal wage violations that Defendants, as joint employers,
inflicted on Superintendents, Porters and other maintenance
personnel who worked at the Chestnut Buildings during the
applicable FLSA and NYLL statute of limitations periods, says the
complaint.
De la Rosa is an adult, natural person who resides in the City,
County and State of New York, beginning in or about September 2014
until on October 3, 2016, De la Rosa worked for Defendants as a
Superintendent/Maintenance Worker.
Chestnut Holdings of New York Inc. was and is a domestic
corporation doing business in New York State.
Wiener is an adult, natural person who, upon information and
belief, resides in Westchester County, New York. Wiener maintains a
principal place of business at 5676 Riverdale Avenue, Bronx, New
York 10471.[BN]
The Plaintiff is represented by:
Marc A. Rapaport, Esq.
RAPAPORT LAW FIRM, PLLC
One Penn Plaza
250 West 34th Street, Suite 2430
New York, NY 10119
Phone: (212) 382-1600
Email: mrapaport@rapaportlaw.com
CONSOLIDATED WELLSITE: Evans Seeks Unpaid Overtime Wages
--------------------------------------------------------
Brandon Evans, individually and on behalf of all others similarly
situated, Plaintiff, v. Consolidated Wellsite Services, LLC,
Defendant, Case No. 2:19-cv-00022-NBF (W.D. Penn., January 8, 2019)
seeks all available relief, including compensation, liquidated
damages, attorneys' fees, and costs, pursuant the Fair Labor
Standards Act ("FLSA"), Ohio's Minimum Fair Wage Standards Act
("OMFWSA"), the Ohio Prompt Pay Act ("OPPA"), and pursuant to the
Pennsylvania Minimum Wage Act ("PMWA").
The complaint asserts that the Plaintiff and the Putative Class
Members routinely work (and worked) in excess of 40 hours per
workweek but were not paid the at the proper overtime rate for all
hours worked. Plaintiff and the Putative Class Members do not and
have not performed work that meets the definition of exempt work
under the FLSA, the Ohio Acts and the PMWA. Plaintiff and the
Putative Class Members therefore seek to recover all unpaid
overtime and other damages owed under the FLSA and to recover all
unpaid overtime and other damages owed under the Ohio Acts and the
PMWA.
Plaintiff Brandon Evans worked for CWS within the meaning of the
FLSA, the PMWA and the Ohio Acts during the relevant time period.
Consolidated Wellsite Services, LLC ("CWS" or "Defendant") is a
Texas limited liability company .[BN]
The Plaintiff is represented by:
Robert E. DeRose, Esq.
BARKAN MEIZLISH DEROSE WENTZ MCINERNEY PEIFER, LLP
250 E. Broad St., 10th Floor
Columbus, OH 43215
Phone: (614) 221-4221
Fax: (614) 744-2300
Email: bderose@barkanmeizlish.com
- and -
Clif Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Phone: (361) 452-1279
Facsimile: (361) 452-1284
Email: clif@a2xlaw.com
austin@a2xlaw.com
CRST INTERNATIONAL: Iowa Law Governs Perez Misclassification Suit
-----------------------------------------------------------------
The United States District Court for the Northern District of Iowa,
Cedar Rapids Division, issued an Order determining the
Applicability of Iowa Law in the case captioned JESUS PEREZ,
Plaintiff, v. CRST INTERNATIONAL, INC; CRST EXPEDITED, INC; DOES
1-100, inclusive, Defendants. No. 18-CV-23-CJW-KEM. (N.D. Iowa).
The Plaintiff formerly worked as part of a two-person, long-haul
truck driving team for defendants, first as an employee, then later
as an independent contractor. Although plaintiff signed an
independent contractor agreement with defendants, plaintiff now
argues that he was misclassified as an independent contractor and,
instead, should have been classified as an employee.
The Plaintiff contends that California law governs, and the
defendants contend that Iowa law governs.
The Plaintiff asserts that the parties are in agreement that the
choice of law clause in the independent contractor agreement is
inapplicable to this case and defendants do not argue for
application of the choice of law provision.
To determine which body of law applies to a dispute, a court must
apply the conflict of laws rules of the state in which it sits.
In tort cases, Iowa applies the Restatement (Second) Conflict of
Laws' most significant relationship test in considering conflict of
laws issues. The Restatement provides as follows: "(1) The rights
and liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to
that issue, has the most significant relationship to the occurrence
and the parties under the principles stated in Section 6.
"(2) Contacts to be taken into account in applying the principles
of Section 6 to determine the law applicable to an issue
include:(a) the place where the injury occurred,(b) the place where
the conduct causing the injury occurred,(c) the domicil, residence,
nationality, place of incorporation and place of business of the
parties, and(d) the place where the relationship, if any, between
the parties is centered."
The Court finds that there is a true conflict between California
law and Iowa law with respect to each of the claims asserted in
this case. Nine of plaintiff's ten claims rest on plaintiff having
allegedly been improperly classified as an independent contractor
instead of as an employee.
The Plaintiff brought the tenth claim under California's Private
Attorneys General Act. Iowa has no law that is analogous to
California's Private Attorneys General Act. As Iowa does not have a
law analogous to California's Private Attorneys General Act, there
is a true conflict as to plaintiff's Private Attorneys General Act
claim.
As to the remaining nine claims, the Court finds that a true
conflict exists because Iowa categorizes workers as employees using
different criteria than does California. Importantly, the nine
claims at issue (Counts One through Eight and Ten) have all been
brought under statutes that apply only to employees, or have been
pled as applying only to employees. As a result, the
employee/independent contractor distinction forms the basis for
each of the nine claims at issue.
Under Iowa law, in determining whether an individual is an employee
or an independent contractor, the primary focus is on the extent of
control by the employer over the details of the alleged employee's
work.
In contrast, when assessing whether an individual is an employee or
an independent contractor, California courts consider, in essence,
whether the principal has the right to control the manner and means
by which the worker accomplishes the work.
The Court finds that the conflict of laws issues presented in the
instant case are true conflicts and that the Court should,
therefore, proceed to a determination of which body of law
applies.
The alleged injuries at issue occurred strictly in California.
Although plaintiff drove for defendants throughout the continental
United States, plaintiff seeks relief under California law only for
those alleged violations that occurred in California. As such, the
first factor weighs in favor of applying California law.
Perhaps those actions affected plaintiff in other parts of the
country, including California, but the evidence before the Court
does not support a finding that defendants committed any allegedly
wrongful acts in a state other than Iowa. As such, this factor
weighs in favor of applying Iowa law.
The third factor, domicile, residence, place of incorporation, and
place of business of the parties is in equipoise. Plaintiff is a
resident of California and defendants are incorporated in Iowa,
where defendants have their principal places of business. All
parties operate throughout the country. Plaintiff, in driving for
defendants, drove throughout the continental United States.
The Defendants, although headquartered in Iowa, contract with
drivers throughout the country and dispatch drivers throughout the
continental United States. Neither Iowa nor California has more
substantial ties to this case than the other state by virtue of the
parties' domiciles or business dealings. Consideration of this
factor does not tip the scale in favor of either party because Iowa
is home to defendants, while California is home to plaintiff, and
all parties operate throughout the country.
The fourth factor, the place in which the parties' relationship was
centered weighs in favor of Iowa law governing. The transient
nature of a truck driver makes it difficult to ascertain where the
parties' relationship was centered because the parties communicated
regarding different business dealings regardless of plaintiff's
physical location in the United States. Plaintiff contends that the
parties' relationship was centered in California because plaintiff
was based out of California, was initially hired as an
employee-driver in California, and because plaintiff "signed the
majority of the independent contractor agreements and lease
agreements in California.
The Defendants refute these assertions by pointing out that of the
three independent contractor agreements plaintiff signed, only one
was signed in California, one was signed in Iowa, and one was
signed elsewhere in the United States while plaintiff was on the
job.
In reviewing plaintiff's sworn declaration, the Court finds that
defendants have correctly determined that plaintiff signed at least
two of his independent contractor agreements outside of California,
and that one was signed in Iowa. It would appear that plaintiff
also signed a number of lease agreements, which permitted plaintiff
to lease trucks so that plaintiff could perform his duties as a
truck driver. The parties' pleadings leave a number of ambiguities
as to how many lease agreements plaintiff signed and where
plaintiff was physically located when he signed those agreements.
For purposes of the present motions, however, the Court will assume
that plaintiff was physically located in California when he signed
each of the lease agreements. This assumption tips the scale
slightly in favor of the fourth factor weighing in favor of
applying California law.
The Court does not agree with the plaintiff, however, that
plaintiff having initially been hired as an employee-driver while
present in California tips the scale in favor of applying
California law.
The Plaintiff was hired as an employee-driver in 1995, plaintiff's
status changed to an independent contractor in 2004,8 and plaintiff
was terminated in 2016. Even assuming, in arguendo, that plaintiff
was hired as an employee-driver while plaintiff was physically
located in California, and even assuming that the parties'
relationship was centered in California at the time plaintiff first
became an employee-driver, the Court finds that the parties'
relationship evolved over the course of the next twenty years such
that the center of the parties' relationship changed to Iowa.
In weighing each of the considerations bearing on which state was
the center of the parties' relationship, the Court concludes that
Iowa was the center of the parties' relationship. Although the
parties' relationship may have begun in California, the parties'
subsequent actions show that Iowa became the center of the parties'
relationship, as that relationship progressed. In reaching this
conclusion, the Court finds it unnecessary to consider whether
defendants' corporate actions and dispatch instructions, both of
which were transmitted out of defendants' corporate headquarters in
Iowa, have any bearing on the center of the parties' relationship.
The Court finds as such because defendants' choice to operate out
of Iowa is probative more on defendants' center of business than it
is on the parties' relationship. Although communicating with an
entity that is based in a certain location could indicate that the
parties' relationship is centered in that location, the facts in
the instant case are not so indicative. The highly transient nature
of truck drivers causes the Court to question whether the
non-transient nature of the trucking companies is a fair indicator
of the center of the parties' relationship. The Court is able to
reach a conclusion as to the center of the parties' relationship
without answering that question, and the Court will therefore
decline to do so.
The primary issue presented in this case is whether defendants
misclassified plaintiff as an independent contractor instead of as
an employee. Defendants are both headquartered in Iowa, and all
decisions regarding such classifications are made in Iowa. As such,
Iowa has a substantial connection with the issue of
misclassification. This factor weighs only slightly in favor of
applying Iowa law, however, because California also has a
connection with the issue of misclassification based on defendants
conducting business in California. The states' dual connections are
resolved in favor of applying Iowa law. Although defendants do
business in both states, defendants are headquartered in Iowa, as
opposed to California, which gives Iowa a greater connection to the
issue. The Court therefore concludes that this factor weighs
slightly in favor of applying Iowa law.
When considering the policies of the forum state and the relevant
policies and interests of other states, the two factors result in a
balanced scale. Although Iowa has an interest in ensuring that
businesses headquartered and incorporated in Iowa abide by all
applicable labor and employment laws, California has an interest in
enforcing its own labor and employment laws for its citizens.
When considered against each other, California's interest in
enforcing its own laws is of equal significance and importance as
Iowa's interest in ensuring that businesses based out of Iowa abide
by the law. The Court therefore concludes that when considered
together, these two factors are in equipoise.
This Court frequently applies Iowa law and would be able to do so
again in the instant case. Defendants urge that determining when
California law would apply and how it would apply here will be
complex. Plaintiff acknowledges that California law is unique in
some material respects but asserts that this Court would be able to
interpret and apply California law. The Court agrees with
plaintiff. The relevant California laws are different from those
laws this Court is most frequently called upon to employ, but the
laws at issue are not so novel or complex that this Court would not
be able to apply the laws accurately. As such, although the Court
may be required to give additional consideration to California
laws, should they be found to govern, the Court would be able to
interpret and apply both Iowa law and California law with equal
accuracy. This factor does not tip the scale in favor of either
body of law.
The parties' arguments as to the remaining factors are
unpersuasive, and the Court finds that the remaining factors have
no bearing on the Court's consideration of which body of law to
apply. As to the protection of justified expectations factor,
plaintiff merely states an Iowa company doing regular business in
California should not be surprised that California labor laws would
apply to California employees performing work in California.
Plaintiff cites no support for this conclusory statement, and the
Court is unpersuaded by plaintiff's rationale. Defendants assert
that the parties' justified expectations are best protected through
application of the law where [defendants are] located and where the
parties agreed all claims would be litigated in Iowa.
The Defendants cite no law for the proposition that the parties'
justified expectations would be best served through application of
Iowa law, and the Court is unpersuaded by defendants' position.
Further, the defendants' argument that the parties agreed to
litigate all claims in Iowa is based on the instant case having
sounded from contract law. The Court has already found that this
case sounds in tort, that plaintiff's claims do not stem from the
independent contractor agreement, and that plaintiff's claims are
not subject to the choice of law provision contained therein. The
Court therefore rejects defendants' argument that the parties'
justified expectations would be served by application of Iowa law.
The final step in the Court's analysis is to weigh the factors
against each other to determine which body of law should be
applied. The Court has found that many of the factors are either in
equipoise or have no bearing on the Court's analysis. Of those
factors that remain, only the place of injury favors applying
California law. The place of conduct causing injury, the place in
which the parties' relationship was centered, and the needs of
interstate and international systems all weigh in favor of applying
Iowa law. Further, the factors in favor of applying Iowa law weigh
much more heavily in favor of applying Iowa law than the place of
injury weighs in favor of applying California law. The Court again
reiterates that the place in which the parties' relationship was
centered carries more weight than the other factors and, as a
result, this factor tips the scale significantly in favor of
applying Iowa law. Based on these considerations, the Court finds
that Iowa law is to govern this case.
The remaining arguments the parties have brought would be
applicable only if the Court had found that California law governs.
Because the Court has concluded that Iowa law governs, the Court
need not address the parties' remaining arguments.
Accordingly, the Court finds that Iowa law is to govern this case.
A full-text copy of the District Court's December 20, 2018 Order is
available at https://tinyurl.com/y79xyn9g from Leagle.com.
Jesus Perez, as an individual, on behalf of himself, all others
similarly situated, and the general public, Plaintiff, represented
by Michael J. Carroll -- Michael@wdmlawyers.com -- Coppola
McConville Coppola Carroll Hockenberg & Scalise, Christopher Martin
Lee -- clee@akgllp.com -- Alexander Krakow & Glick LLP, pro hac
vice, Jessica Sun Choi -- jchoi@akgllp.com -- Alexander Krakow &
Glick LLP, pro hac vice, Michael S. Morrison --
mmorrison@akgllp.com -- Alexander Krakow & Glick LLP, pro hac vice
& Nicolas Orihuela -- no@hohlawyers.com -- Hurwitz Orihuela and
Hayes LLP, pro hac vice.
CRST International, Inc, an Iowan corporation & CRST Expedited,
Inc, an Iowan corporation, Defendants, represented by Kevin J.
Visser, Simmons Perrine Moyer Bergman PLC, Nicholas Petersen --
npetersen@simmonsperrine.com -- Simmons Perrine Moyer Bergman PLC,
Charles Andrewscavage -- npetersen@simmonsperrine.com -- Scopelitis
Garvin Light Hanson and Feary PC, pro hac vice, James H. Hanson --
jhanson@scopelitis.com -- Scopelitis Garvin Light Hanson and Feary
PC, pro hac vice & R. Jay Taylor, Jr. -- jtaylor@scopelitis.com --
Scopelitis Garvin Light Hanson and Feary PC, pro hac vice.
CVS RX: Court Enters Partial Judgment on Cabrera's PAGA Claim
-------------------------------------------------------------
In the case, SIGFREDO CABRERA, ENKO TELAHUN, and CHRISTINE McNEELY,
on behalf of themselves and all others similarly situated,
Plaintiffs, v. CVS RX SERVICES, INC., a New York corporation, CVS
PHARMACY, INC., a Rhode Island corporation, GARFIELD BEACH CVS,
LLC, a California limited liability company, and DOES 1 to 10
inclusive, Defendants, Case No. C 17-05803 WHA (N.D. Cal.), Judge
William Alsup of the U.S. District Court for the Northern District
of California granted the Plaintiffs' motion for partial judgment
on their claim under California's Private Attorneys General Act of
2004 pursuant to FRCP 54(b).
Defendants CVS Rx Services, Inc., CVS Pharmacy, Inc., and Garfield
Beach CVS, LLC provide pharmacy services and operate retail stores.
CVS employed Plaintiff Telahun as a pharmacist and pharmacy
manager between June 2013 and February 2017 and employed Cabrera as
a pharmacy tech trainee from January 2016 through January 2017.
Cabrera initiated the action in August 2017 in state court. He
amended the complaint in September 2017 to add Telahun as a
Plaintiff and to include a claim pursuant to PAGA. In October
2017, CVS removed the action to the district court and later moved
to compel the Plaintiffs to bring their claims in individual
arbitration.
In the face of CVS' motions to compel, the Plaintiffs moved for
leave to file a second amended complaint. The proposed second
amended complaint dropped all of Cabrera and Telahun's putative
class claims (keeping only their PAGA claim) and added Christine
McNeely as a plaintiff and putative class representative with
respect to the non-PAGA claims.
A September 2018 order granted CVS' motion for summary judgment on
the Plaintiffs' PAGA claim, finding that Cabrera and Telahun had
waived their individual claims under the Labor Code and had lost
standing to sue under PAGA. The Plaintiffs now move for entry of
judgment on their PAGA claim pursuant to FRCP 54(b).
Judge Alsup finds that there is no just reason for delaying entry
of a final judgment on Cabrera and Telahun's PAGA claim. The
September 25 order granted summary judgment on the PAGA claim in
favor of CVS -- thereby resolving all of the claims asserted by
Cabrera and Tehlahun in the action -- and held that because Cabrera
and Telahun had given up their rights for individual damages under
the Labor Code they had lost standing to sue under PAGA. The only
remaining claims are those asserted by Plaintiff McNeeley (which
claims remain stayed pending CVS' appeal of the March 16 order
granting the Plaintiffs' motion for leave to amend and granting in
part CVS's motion to compel arbitration).
The appeal of Cabrera and Telahun's PAGA claim will not involve
factual questions at issue in McNeeley's individual claims under
the Labor Code. Rather, the appeal will involve whether or not the
Court erred as a matter of law by granting summary judgment on
Cabrera and Telahun's PAGA claim in favor of CVS. The PAGA claim
is therefore sufficiently separate and distinct from the only
remaining claims in this action. Nor would delay in entering final
judgment serve judicial economy or any other purpose.
In light of the foregoing, Judge Alsup granteed the Plaintiffs'
motion for entry of partial judgment pursuant to FRCP 54(b). The
judgment on the PAGA claim will be entered separately.
A full-text copy of the Court's Jan 2, 2019 Order is available at
https://is.gd/zp25M3 from Leagle.com.
Sigfredo Cabrera, as individuals, on behalf of themselves and all
other similar persons similarly situated, Plaintiff, represented by
R. Craig Clark -- cclark@clarklawyers.com -- Clark Law Firm, Walter
Lewis Haines -- walter@whaines.com -- United Employees Law Group,
P.C. & Monique R. Rodriguez -- mrodriguez@clarklawyers.com -- Clark
Law Group.
Enko Telahun & Christine McNeely, Plaintiffs, represented by R.
Craig Clark, Clark Law Firm & Monique R. Rodriguez , Clark Law
Group.
CVS RX Services, Inc., a New York corporation, CVS Pharmacy, Inc.,
a Rhode Island Corporation & Garfield Beach CVS, LLC, a California
limited liability company, Defendants, represented by Tyler Ryan
Andrews -- andrewst@gtlaw.com -- Greenberg Traurig, Christiana Lynn
Signs -- signsc@gtlaw.com -- GREENBERG TRAURIG & James Norman
Boudreau -- boudreauj@gtlaw.com -- Greenberg Traurig, LLP, pro hac
vice.
DBV TECHNOLOGIES: Rosen Law Firm Investigates Securities Claims
---------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Dec. 24
disclosed that it is investigating potential securities claims on
behalf of shareholders of DBV Technologies S.A. (NASDAQ:DBVT)
resulting from allegations that DBV Technologies may have issued
materially misleading business information to the investing
public.
On December 19, 2018, DBV Technologies revealed that its Biologics
License Application ("BLA") for Viaskin Peanut in children four to
eleven years of age had been voluntarily withdrawn following
discussions with the U.S. Food and Drug Administration ("FDA"). The
company stated, "although the agency did not reference any medical
or clinical questions with the submission of Viaskin Peanut, the
FDA did communicate that the level of detail with regards to data
on manufacturing and quality controls was insufficient in the BLA."
On this news shares of DBV Technologies fell $8.39 or nearly 60% to
close at $5.76 on December 20, 2018.
Rosen Law Firm is preparing a class action lawsuit to recover
losses suffered by DBV Technologies, investors. If you purchased
shares of DBV Technologies, please visit the firm's website at
https://www.rosenlegal.com/cases-1480.html to join the class
action. You may also contact Phillip Kim or Zachary Halper of Rosen
Law Firm toll free at 866-767-3653 or via email at
pkim@rosenlegal.com or zhalper@rosenlegal.com. [GN]
DISCOUNT CROTONA: Martinez Seeks to Recoup Unpaid Wages
-------------------------------------------------------
Javier Gonzalez Martinez, individually and on behalf of others
similarly situated, Plaintiff, v. Discount Crotona Inc. (d/b/a
Dollar Junction), Dollar Two Inc. (d/b/a 99 Cent Wonder), Muhammed
S. Andha, Haroon R. Andha, Sultan Ayub, Useir Doe, and Ayub Alazan,
Defendants, Case No. 1:19-cv-00294 (S.D. N.Y., January 10, 2019)
seek unpaid minimum and overtime wages pursuant to the Fair Labor
Standards Act of 1938 ("FLSA"), and for violations of the N.Y.
Labor Law, including applicable liquidated damages, interest,
attorneys' fees and costs.
Plaintiff Gonzalez has worked for Defendants in excess of 40 hours
per week, without appropriate minimum wage and overtime
compensation for the hours that he has worked. Rather, Defendants
have failed to pay Plaintiff Gonzalez appropriately for any hours
worked, either at the straight rate of pay or for any additional
overtime premium, says the complaint.
Plaintiff Javier Gonzalez Martinez has been employed by Defendants
at Dollar Junction and 99 Cent Wonder from approximately 2006 until
the present date.
Discount Crotona Inc. (d/b/a Dollar Junction) is a domestic
corporation organized and existing under the laws of the State of
New York.
Dollar Two Inc. (d/b/a 99 Cent Wonder) is a domestic corporation
organized and existing under the laws of the State of New York.
Muhammed S. Andha, Haroon R. Andha and Sultan Ayub served as owner,
officer and/or agent of Defendant Corporations.
Useir Doe and Ayub Alazan served as managers of Defendant
Corporations.[BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Phone: (212) 317-1200
Facsimile: (212) 317-1620
EAST BAY PUBLISHING: Made Illegal Autodialled Calls, Carter Says
----------------------------------------------------------------
Mary Carter, on behalf of herself and all others similarly
situated, Plaintiff, v. East Bay Publishing LLC, Bay Area News
Group East Bay, LLC, MediaNews Group Inc. d/b/a Digital First
Media, and Localis, LLC, Defendants, Case No. 4:19-cv-00216 (N.D.
Cal., January 11, 2019) seeks to: (1) stop Defendants' practice of
placing calls using an automatic telephone dialing system ("ATDS")
to the cellular telephones of consumers nationwide without their
prior express written consent; (2) enjoin Defendants from
continuing to place calls using an ATDS to consumers who did not
provide their prior express written consent to receive them; and
(3) obtain redress for all persons injured by its conduct.
The Defendants called Plaintiff using an autodialer without her
prior express written consent at least once, including a call on
December 11, 2018. The Defendants not only invaded the personal
privacy of Plaintiff and members of the putative Classes, but also
intentionally and repeatedly violated the Telephone Consumer
Protection Act, says the complaint.
Plaintiff Mary Carter is a resident of Oakland, California, and a
citizen of the State of California.
East Bay Publishing LLC is a corporation organized under the laws
of Delaware with a principal place of business at 175 Lennon Lane
Suite 100, Walnut Creek, CA 94598. Defendant East Bay Times is a
subsidiary of both Bay Area News Group East Bay, LLC and MediaNews
Group Inc. d/b/a Digital First Media.
Bay Area News Group East Bay, LLC is a corporation organized under
the laws of Delaware with a principal place of business at 4 North
Second Street, Suite 800, San Jose, CA, 95113. Defendant Bay Area
News Group is a subsidiary of MediaNews Group Inc. d/b/a Digital
First Media.
MediaNews Group Inc. d/b/a Digital First Media is a corporation
organized under the laws of Delaware with a principal place of
business at 101 West Colfax Avenue, 11th Floor, Denver, CO
80202-5177.
Localis, LLC is a corporation organized under the laws of Nevada
with a principal place of business at 3225 McLeod Drive, Suite 100,
Las Vegas, NV 89121-2257. Defendant Localis is a marketing company
specializing in newspaper telemarketing services.[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Facsimile: (925) 407-2700
Email: ltfisher@bursor.com
- and -
Scott A. Bursor, Esq.
BURSOR & FISHER, P.A.
2665 S. Bayshore Dr. Ste. 220
Miami, FL 33133-5402
Phone: (305) 330-5512
Facsimile: (212) 989-9163
Email: scott@bursor.com
ENERGY INSPECTION: Brandon Thrower Seeks Unpaid Wages
-----------------------------------------------------
BRANDON THROWER on Behalf of Himself and on Behalf of All Others
Similarly Situated, the Plaintiff, v. ENERGY INSPECTION SERVICES,
L.L.C., the Defendant, Case No. 3:18-cv-00447 (S.D. Tex., Dec. 28,
2018), seeks to recover all unpaid wages and other damages owed
under the Fair Labor Standards Act.
According to the complaint, the Defendant knowingly and
deliberately failed to compensate Plaintiff and the Class Members
at the rate of time and one half their regular rate of pay for all
hours worked over 40 in a workweek as required under the Fair Labor
Standards Act. The Defendant violated the FLSA by misclassifying
the Plaintiff and Class Members as exempt from overtime.
Consequently, Defendant's compensation policy violates the FLSA's
mandate that non-exempt employees, such as the Plaintiff and Class
Members, be compensated at one and one-half times their regular
rate of pay for each hour worked over 40 in a week, the lawsuit
says.
EIS provides professional, integrated field services generating
quality, flexibility, and cost savings in heavy industry
projects.[BN]
Attorneys for Plaintiff:
Don J. Foty, Esq.
KENNEDY HODGES, L.L.P.
4409 Montrose Blvd., Suite 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@kennedyhodges.com
EPIC GAMES: YouTuber Keemstar to Join Class Action
--------------------------------------------------
Erwin Cruz and Milos Kitanovic, writing for blastingnews, report
that Fortnite's V7.10 patch has introduced new contents into the
game alongside some tweaks and bug fixes. However, it looks like
the recent update may have also brought in a glitch [VIDEO] to one
of the weapons in the battle royale shooter.
Someone from Reddit (u/Cloobetsu) posted a couple of clips showing
this glitch where the OP stated in his first post that swapping
directly to the Hunting Rifle after firing a 100 percent accuracy
shot with another weapon will give the same result.
The post gained some traction in r/FortNiteBR, though there are a
few who are not convinced as they commented that the clip was
edited.
Cloobetsu responded, though, that the video was not edited as he
explained that it was just the game clock glitching.
To prove that it was the real deal, the Reddit user has uploaded
another video showing the same glitch where all his four shots
connected and eventually eliminated his opponent.
How the trick is done
The OP also detailed down in the comments on how to replicate this
glitch [VIDEO]. According to him, one should aim down and shoot a
first shot accuracy (FSA) with any weapon and without releasing
both the aim and fire buttons, switch to the rifle.
The second post gained more upvotes from the community, though some
members of the subreddit pointed out that this Hunting Rifle trick
is not that useful against a moving target. There are players,
however, who stated they've been doing this trick for a while now
with a dual HR setup adding that they are not aware that it can be
done with other weapons.
Cloobetsu even went on stating that "it hits wherever the player's
aiming adding that they just have to aim where they want the shot
to hit."
Grimbles skin now available
Meanwhile, Epic has rolled out the items available for purchase in
"Fortnite's" Item Shop for December 22-23. Also, the updated roster
has introduced both the Cold Snap pickaxe and the gnome skin dubbed
the Grimbles Outfit:
Daily items
Scorpion Outfit (Uncommon/800 V-Bucks)
Survival Specialist (Rare/1,200)
Icebreaker Pickaxe (Uncommon/500)
Libre glider (Rare/800)
Rock out emote (Epic/800)
Rawr emote (Rare/500)
Featured Items
Grimbles Outfit (Rare/1,200 V-Bucks)
Ginger Gunner (Epic/1,500)
Merry Marauder (Epic/1,500)
Gingersled glider (Uncommon/500)
Cookie Cutter pickaxe (Uncommon/500)
Cold Snap pickaxe (Rare/800)
Keemstar joins in
In line with the recently released Grimbles skin, popular YouTuber
Keemstar took to Twitter stating that he'll be joining a class
action lawsuit against Epic Games.
The announcement was posted alongside an image of the
above-mentioned skin and made a follow-up tweet on this making it
clear that he's serious about it. [GN]
FERRERO USA: Drucker Files Suit Over Deceptive Nutella Packaging
----------------------------------------------------------------
Abraham Drucker, on behalf of himself and all others similarly
situated v. Ferrero USA, Inc., Case No. CGC-18-571845 (Cal. Super.
Ct., San Francisco Cty., December 5, 2018), is brought against the
Defendant for violation of California's Consumers Legal Remedies
Act.
The Plaintiff brings this action based on the Defendant's
misleading business practices with respect to the packaging and
sale of the Company's Nutella & GO! Products. The Defendant has
packaged and sold Nutella & GO! Products in opaque packaging that
conceals from consumers the amount of product actually contained
therein.
But in stark contrast to the product's outer packaging, the Nutella
portion of the product consists of approximately 50% Nutella and
50% empty space, says the complaint.
The Plaintiff Abraham Drucker is an individual residing in San
Francisco, California who, in or about October 2015, purchased
Nutella & Go! Products, including the Product in the four-pack
variety, from Safeway in San Francisco, California.
The Defendant Ferrero distributed, marketed, advertised and sold
products including Nutella, Tic Tac mints, Ferrero Rocher chocolate
and hazelnut praline, and other "quality confections." Ferrero
maintains its principal place of business at 7 Sylvan Way, 4th
Floor, Parsippany, New Jersey, 07054. Ferrero regularly conducts
and transacts business in this County, as well as throughout the
United States. [BN]
The Plaintiff is represented by:
Rachele B. Byrd, Esq.
Brittany N. Dejong, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Ste 2770
San Diego, CA 92101
Tel: (619) 239-4599
FLORIDA: Department of Education Appeals Ruling in FEA Class Suit
-----------------------------------------------------------------
Defendant Florida Department of Education filed an appeal from a
court ruling in the lawsuit entitled Florida Education Association,
et al. v. Florida Department of Education, Case No.
4:17-cv-00414-RH-CAS, in the U.S. District Court for the Northern
District of Florida.
As previously reported in the Class Action Reporter, the lawsuit is
an action for damages, and equitable, injunctive and declaratory
relief brought under the Civil Rights Act of 1964 and the Florida
Civil Rights Act of 1992, based on age and black and Hispanic race
discrimination.
Plaintiff Florida Education Association ("FEA") through its
affiliates in all 67 Florida counties represents more than 250,000
teachers and education staff professional in Florida's 67 school
districts, and has over 140,000 members in the State through its
local affiliates. For over a century, the FEA has been the leading
advocate of raising the quality of education in Florida's public
schools, and of increasing the dignity and status of all teachers
and education staff professionals. The Individual Plaintiffs are
Hispanics and over 40 years of age. They are classroom teachers in
Dade County, Florida, and members of the FEA, who have been rated
"highly effective" as of Oct. 1, 2015.
The appellate case is captioned as Florida Education Association,
et al. v. Florida Department of Education, Case No. 19-10019, in
the United States Court of Appeals for the Eleventh Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant's Certificate of Interested Persons is due on or
before January 17, 2019, as to Appellant Florida Department
of Education; and
-- Appellee's Certificate of Interested Persons is due on or
before January 31, 2019, as to Appellee Jenny Cisneros.[BN]
Plaintiffs-Appellees FLORIDA EDUCATION ASSOCIATION; JENNY CISNEROS,
individually and on behalf of all others similarly situated;
DOROTHY THOMAS-DUNSON, individually and on behalf of all others
similarly situated; ANGELA FERREIRA, individually and on behalf of
all others similarly situated; and SHANNEL GORDON, individually and
on behalf of all others similarly situated, are represented by:
John Clark Davis, Esq.
LAW OFFICE OF JOHN C. DAVIS
623 Beard Street
Tallahassee, FL, 32303
Telephone: (850) 222-4770
Facsimile: (850) 222-3119
E-mail: john@johndavislaw.net
- and -
Kent Spriggs, Esq.
SPRIGGS LAW FIRM
2007 W Randolph Circle
Tallahassee, FL 32308
Telephone: (850) 224-8700
E-mail: kspriggs@spriggslawfirm.com
Defendant-Appellant FLORIDA DEPARTMENT OF EDUCATION is represented
by:
David Matthew Allen, Esq.
Cathleen Bell Bremmer, Esq.
Chris S. Coutroulis, Esq.
CARLTON FIELDS JORDEN BURT, PA
4221 W Boy Scout Blvd., Suite 1000
PO Box 3239
Tampa, FL 33607
Telephone: (813) 223-7000
E-mail: mallen@carltonfields.com
cbell@carltonfields.com
ccoutroulis@carltonfields.com
- and -
Robert Pass, Esq.
CARLTON FIELDS JORDEN BURT, PA
215 S Monroe St., Suite 500
Tallahassee, FL 32301
Telephone: (850) 224-1585
E-mail: rpass@carltonfields.com
- and -
Jamie Melissa Braun, Esq.
ATTORNEY GENERAL'S OFFICE
PL-01 The Capitol
Tallahassee, FL 32301
Telephone: (850) 414-3300
E-mail: jamie.braun@fldoe.org
- and -
Riley Michelle Landy, Esq.
Matthew Harrison Mears, Esq.
FL DOE, OFFICE OF THE GENERAL COUNSEL
325 W Gaines St., Suite 1244
Tallahassee, FL 32399-6533
Telephone: (850) 245-0442
E-mail: riley.landy@fldoe.org
matthew.mears@fldoe.org
- and -
Jack Wes Gay, Esq.
Michael Mattimore, Esq.
ALLEN NORTON & BLUE, PA
906 N Monroe St.
Tallahassee, FL 32303
Telephone: (850) 561-3503
E-mail: wgay@anblaw.com
mmattimore@anblaw.com
- and -
Matthew David Stefany, Esq.
ALLEN NORTON & BLUE, PA
324 S Hyde Park Ave., Suite 225
Tampa, FL 33606-4110
Telephone: (813) 251-1210
E-mail: mstefany@anblaw.com
- and -
Stacey McGavin Mohr, Esq.
Rocco E. Testani, Esq.
EVERSHEDS SUTHERLAND (US) LLP
999 Peachtree St. NE, Suite 2300
Atlanta, GA 30309
Telephone: (404) 853-8004
E-mail: staceymohr@eversheds-sutherland.com
roccotestani@eversheds-sutherland.com
FOOD COLONY: Romero Seeks Minimum and Overtime Wages
----------------------------------------------------
MARGARITO ROMERO, individually and on behalf of others similarly
situated, the Plaintiff, vs. FOOD COLONY LLC (D/B/A C TOWN), NOOR
HAMDAN, NAYEF HASAN HAMDAN, RADWAN HAMDAN, and ALEX DOE, the
Defendants, Case No. 1:18-cv-07437 (E.D.N.Y., Dec. 28, 2018), seeks
to recover unpaid minimum and overtime wages pursuant to the Fair
Labor Standards Act of 1938 and the New York Labor Law.
According to the complaint, the Defendants own, operate, or control
a supermarket, located at 7510 7512 5th Avenue, Brooklyn, New York
11209 under the name "C Town". The Plaintiff Romero was employed as
a freezer and dairy packer at the supermarket located at 7510 7512
5th Avenue, Brooklyn, NY 11209. The Plaintiff worked for the
Defendants in excess of 40 hours per week, without appropriate
minimum wage and overtime compensation for the hours that he
worked. Rather, the Defendants failed to pay the Plaintiff
appropriately for any hours worked and either at the straight rate
of pay or for any additional overtime premium. Defendants' conduct
extended beyond the Plaintiff to all other similarly situated
employees.
The Defendants maintained a policy and practice of requiring
Plaintiff Romero and other employees to work in excess of 40 hours
per week without providing the minimum wage and overtime
compensation required by federal and state law and regulations, the
lawsuit says.[BN]
Attorneys for Plaintiff:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES , P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Faillace@employmentcompliance.com
GOLDEN 1 CREDIT: Has Until Jan. 21 to Reply to D. Ware FLSA Suit
----------------------------------------------------------------
In the case, DeSHAWN WARE individually and on behalf of all others
similarly situated, Plaintiff, v. THE GOLDEN 1 CREDIT UNION, INC.,
Defendant, Case No. 2:18-cv-02926-JAM-EFB (E.D. Cal.), Judge John
A. Mendez of the U.S. District Court for the Eastern District of
California granted the Defendant until Jan. 21, 2019, to file its
response to the Plaintiff's Complaint.
On Nov. 20, 2018, the Plaintiff filed and served upon Defendant his
Class/Action/Representative Complaint. The Defendant's response to
the Complaint was due Dec. 11, 2018.
On Dec. 5, 2018, the counsel for the Defendant requested an initial
28-day extension of time to respond to the Plaintiff's Complaint.
The Plaintiff's counsel granted the extension.
Subsequently, a further two-week extension of time for Defendant to
respond to the Plaintiff's Complaint was requested and granted.
The Parties have agreed that any statutes of limitation for the
Plaintiff or the putative class or collective members that are
based on the response deadline are tolled for the period of the
agreed-upon extension of 42 days.
The parties respectfully requested from the Court an order granting
the Defendant until Jan. 21, 2019, to file its response to the
Plaintiff's Complaint.
Judge Mendez ordered that the Defendant file its response the
Complaint by Jan. 21, 2019. Any statutes of limitation for the
Plaintiff or the putative class or collective members will be
tolled for 42 days.
A full-text copy of the Court's Jan 4, 2019 Order is available at
https://is.gd/BB0PEI from Leagle.com.
Deshawn Ware, individually and on behalf of all others similarly
situated, Plaintiff, represented by Charles R. Ash, IV --
crash@sommerspc.com -- Sommers Schwartz, P.C., pro hac vice,
Natalia D. Asbill -- nasbill@perkins-lawoffice.com -- Perkins &
Associates, Kevin J. Stoops -- kstoops@sommerspc.com -- Sommers
Schwartz, P.C., pro hac vice & Robin Kerry Perkins --
rperkins@perkins-lawoffice.com -- Perkins & Associates.
The Golden 1 Credit Union, Inc., Defendant, represented by
Elizabeth B. Stallard -- estallard@downeybrand.com -- Downey Brand,
LLP.
GOLDMAN SACHS: Malaysia AG Seeks 1MDB Damages Amid Class Action
---------------------------------------------------------------
Sarawak Report has long argued that the narrative that banks,
together with Najib and all his cohorts, were somehow 'fooled' by
Jho Low would not wash. Despite years of seemingly proving they
could, Goldman Sachs and others cannot in this case expect to have
their cake and eat it.
They took the money, they knew they took the money and they cannot
but have known they ought not to have taken the money.
Everyone can see it, which is why since the high point just before
the May election shares in this bank have fallen from USD 273 to
USD 160 -- a staggering 41%!
Goldman Sachs ended the pre-holiday week not just facing an
escalated demand from Malaysia's Attorney General for a repayment
of $7.5 billion in damages over those 1MDB bonds plus the
escalation of criminal probes, this time emanating from Singapore,
it was also facing a newly minted class action from shareholders
furious that failures of basic due dilligence (or honest practice,
take your pick) had almost halved the value of their investment,
owing to that plunging share price.
Goldmans response was to continue to claim that the bank itself is
innocent and that it was fooled by a rogue banker or two, who lied
to compliance. This was the in-coming CEO David Solomon's end of
year statement to workers at the bank:
"I cannot stress enough how integrity is a cornerstone of our
culture.
"While we understand the anger and skepticism, we do not believe
that the criticism directed at us accurately reflects who we were
then or who we are now,"
"We believe our culture and our processes around our due diligence
and compliance was strong at the time, and is even stronger today."
[Channel News Asia]
Double down, push back, use your muscle, throw money at lawyers,
divert attention have proved the textbook tactics for major players
used to getting out of trouble over their own actions, however the
trick is to recognise the day when none of these are going to
work.
None are going to work for Goldman Sachs for the simple reason that
on May 9th the overwhelming majority of the 30 million people of
Malaysia voted BN out and demanded retribution over 1MDB.
What's more, the new government of Malaysia is working with the US
Department of Justice and the FBI plus numerous other international
law enforcement agencies to get to the truth about the world's
largest theft, which Goldman Sachs enabled and profited greatly
from.
There are now two indictments in the US court system citing Goldman
Sach's role in the matter of 1MDB, including a guilty plea by the
bank's former Souteast Asia boss, Tim Leissner, in which he admits
that several senior colleagues at the bank aided and abetted him in
creating a massively disadvantageous bond for 1MDB, in order to
steal half the money raised and bribe officials (like Najib, Rosmah
and IPIC's Khadem al-Qubaisi) . . . and to pay vast bonuses to
Goldman partners and US$100 million in kickbacks to Leissner
himself.
If David Solomon wants to say that the bank seriously didn't know
something wrong was going on in all this, then the answer is none
of them are fit to run a bank. Sarawak Report was the first to
openly challenge the 1MDB bond deals and that was back in 2013.
There was enough information in that article alone, which was based
on obtaining a copy of the secretive bond offer, to alert Goldman
Sachs that they needed to heavily scrutinise the deal that had made
them all so much money.
Instead, the bank did precisely nothing. Neither did it react to
the eruption of the 1MDB scandal in 2015, together with the
imprisonment of their former partners in the bond issue Khadem
al-Qubaisi and Mohamed al-Husseini. Clearly they must have realised
something had gone amiss by that point?
Yet, even after the Department of Justice announced its civil
seizures of billions of dollars in assets in 2016 and Jho Low
rushed into hiding, no moves were made. As piece by piece the
crooked nature of these bond deals came out and it became clear
that claims in the Goldman offering document were entirely false,
the bank did nothing to address the fact that it had plainly
misrepresented these bonds to trusting customers.
Mr. Leissner was eventually let go, but nothing was done to address
the situation over the plummeting value of 1MDB's mis-sold bonds.
After all, the bank's own share prices held steady, right up until
Malaysia threw out Najib Razak.
There are a number of other banks with their heads in the sand over
the same scandal, notably ANZ. Many others have 'fessed up and
faced fines. However, Goldman Sachs plainly thinks it can still
limit the impact, ring fence the problem and claim that the wider
bank was in no way to blame for the scandal it benefitted from so
greatly.
Flawed Bond Offer
As Goldman insists on firefighting on all fronts on this matter,
rather than lancing the boil and starting over, it is worth
evaluating just what the bank is going to have to claim it did not
spot while in plain sight.
In just one of the cases now being fought, for example, the newly
revamped IPIC (which Abu Dhabi immediately took in hand after the
arrest of Khadem al-Qubaisi in 2015) has blamed the entire bank for
what it describes as "massive global conspiracy" to defraud 1MDB
and its own fund.
After all, huge sums of cash were siphoned out of the bond issues
in the name of paying off IPIC for a guarantee, when in fact the
money did not go to IPIC it went into a bogus off-shore account
with a similar name to the Aabar subsidiary involved in the deal.
If Goldman had checked at any point, they could have found this to
have been the case.
Even more damning are the cold facts laid out in the criminal case
that Malaysia has now laid not just against individuals, as in the
United States, but against three subsidiaries of the bank,
including Goldman Sachs International based in London.
In these indictments the Malaysian Attorney General spells out
exactly why the bond offerings were fraudulent, pointing to related
facts and agreements that were made as part of the deal with IPIC,
which were not passed on as relevant information to the buyers of
the bonds. Any investigation by Goldman Sachs' own hierarchy into
the matter would have thrown up these failings immediately, meaning
either there was gross malfeasance or gross incompetence, because
the bank has had three years to look into the matter during the
period after 1MDB became an international scandal alone.
Key pieces of information, which AG Thommy Thomas points out were
not passed on to bond buyers or made clear in any audit, include
the role of the red flag customer Jho Low as the prime intermediary
in the issuing of the bonds and also the fact that agreements had
been made at the time of the bond issues pledging to pay around
half all the money raised back to the IPIC subsidiary Aabar in
return for getting the parent fund to guarantee the bond. That
would have made it impossible for these bonds to yeild sufficient
returns.
IPIC didn't know about these agreements either of course, and the
money was sent to the bogus BVI company called Aabar PJS
Investments Limited instead.
Another agreement hidden from purchasers of the bonds was the
option provided again to Aabar to allow it to buy 49% of the power
companies subsequently purchased using the remainder of the money.
This provided another excuse to siphon out more money from 1MDB on
the pretext of 'buying out the option'.
What's more, the AG goes on to point out that those guarantees were
themselves meaningless and unenforceable, because a separate secret
agreement assured that the Malaysian Ministry of Finance would bail
out the Abu Dhabi fund for the entire amount.
The AG could also have added that the bond offering documents made
other claims, long since disproved, namely that the 1MDB fund was
'robustly' and 'independently' managed through a 'three tier'
system including an independent board, management and advisory
board. What has since emerged was that the fund was entirely in the
hands of a sole signatory and shareholder, namely the Finance
Minister Najib Razak, who had secretly amended the articles to
ensure only he could authorise decisions. The Advisory Board had
never met.
The scam was so thinly disguised and so appallingly expensive to
1MDB that any investigation by Goldman Sachs would have flushed it
out. However, until May 2018 the bank clearly reckoned that it
could brazen the matter out, protected by Malaysia's own failure to
go after its stolen money, despite the fact that wrongdoing had so
clearly been pointed out by the authorities in the bank's own home
in the United States.
Goldman Sachs and others had walked away from their part in causing
the financial disaster of 2008 and seemed to have taken the lesson
that they had proved them 'untouchable' and 'Masters of the
Universe'. Cynically, the bank went on to strip what the political
boss of its President and COO at the time of all those thefts (Gary
Cohn) categorised as a 'shithole country' of its assets, seemingly
in the belief that BN's corrupted leadership could stay in power
for ever and cover the tracks.
However, Malaysia is not a 'shithole country' and the people fought
back. Goldman Sachs now have one option only, therefore, which is
to pay out, accept their punishment and hope to then start to
repair the damage . . . if they keep their licence. [GN]
GREEN JACOBSON: Completion of Settlement Fund Distribution Ordered
------------------------------------------------------------------
In the case, In re: Green Jacobson, P.C., Debtor. David P. Oetting,
Appellant, v. David A. Sosne; SKMDV Holdings, Inc., Appellees, Case
No. 18-1134 (8th Cir.), Judge James B. Loken of the U.S. Court of
Appeals for the Eighth Circuit reversed in part and affirmed in
part the orders of the district court dated June 21, 2017 and Dec.
19, 2017, dismissing Oetting's unsecured creditor claim and amended
claim.
After the merger of NationsBank Corp. and BankAmerica Corp., the
shareholders of both companies filed class action lawsuits alleging
violations of the federal securities laws. The cases were
transferred to the Eastern District of Missouri, where the district
court appointed David Oetting as one lead Plaintiff of the
NationsBank class and the St. Louis law firm of Green Jacobson,
P.C. as the lead counsel for the class. The litigation settled,
resulting in a $333 million settlement fund for the NationsBank
class. The Eighth Circuit affirmed the district court's approval
of the settlement over Oetting's objection that it was inadequate.
On the recommendation of Green Jacobson, the district court
appointed Heffler, Radetich & Saitta, LLP as the claims
administrator to distribute the settlement fund to class member
claimants. During the claims process, an employee of Heffler
conspired to submit 15 false claims against the fund, resulting in
the payment of $5.87 million that otherwise would have been paid to
members of the class.
In 2010, the district court denied Green Jacobson's motion for
leave to file a supplemental complaint against Heffler to recover
the loss. Oetting subsequently filed a separate action against
Heffler on behalf of the NationsBank class that was transferred to
and dismissed by the Eastern District of Pennsylvania.
After two distributions to the NationsBank class in December 2004
and April 2009, some $2.4 million remained in the settlement fund.
Green Jacobson moved to have the remaining $2.4 million distributed
cy pres and requested an additional award of $98,114.34 in
attorney's fees for post-settlement work.
Oetting opposed the cy pres distribution as contrary to the class
members' interests, opposed the award of additional attorney's
fees, and argued that Green Jacobson should disgorge $2 million in
fees for abandoning the class. Oetting also filed the separate
class action, alleging in four counts that class counsel Green
Jacobson and three members of the firm (i) committed legal
malpractice by negligently hiring and failing to supervise claims
administrator Heffler, and (ii) breached its fiduciary duty by
taking various actions that constituted abandonment of the
NationsBank class. The complaint sought damages for causing the
$5.87 million fraud loss to the settlement fund and disgorgement of
the entire $60 million in attorneys fees awarded Green Jacobson in
the BankAmerica litigation.
In the main action, the district court granted Green Jacobson's
motion for a cy pres distribution and for a supplemental fee award
and denied Oetting's request for disgorgement. The Court reversed
the cy pres award, ordering the district court to allow an
additional distribution to the class and then to consider whether a
cy pres award of any remaining funds would be appropriate. It
vacated the supplemental fee award as premature prior to completion
of additional distributions that would be made after remand.
After the Eighth Circuit's 2015 decision in In re BankAmerica Corp.
Sec. Litig., 775 F.3d at 1060 ("Cy Pres Case"), Green Jacobson's
Chapter 7 proceeding commenced, triggered by an unrelated state
court malpractice judgment. An Order for Relief was entered on
April 16, 2015, and appellee David A. Sosne was appointed Chapter 7
Trustee. Oetting as the representative of the NationsBank Class
then timely filed Claim 1-1, an unsecured claim for $10,503,914.70.
Trustee Sosne objected to the claim.
Wanting his claims resolved as part of the MDL Action, rather than
by the bankruptcy court, Oetting filed a motion to withdraw
reference in the district court, and a motion to abstain or suspend
proceedings in the bankruptcy court. The district court denied the
motion to withdraw reference.
On Nov. 29, 2016, the bankruptcy court denied the motion to abstain
or suspend proceedings, and sustained the Trustee's objection to
Oetting's Claim 1-1, thereby disallowing the claim. The merits of
that decision, and the district court's dismissal of Oetting's
appeal of the bankruptcy court's decision for lack of standing, are
the subjects of Oetting's appeal to the Court.
In Claim 1-1, Oetting again asserted that Green Jacobson as the
lead class counsel was negligent in supervising the administration
of the distribution of settlement proceeds to the NationsBank
class; therefore, he claimed, attorneys' fees awarded to the class
counsel by the district court should be disgorged, and Green
Jacobson is liable to the class for monies owed to the settlement
fund. Oetting quantified the total claim of $10,503,914.70.
Oetting's amended claim restated the primary amount claimed but
acknowledged that the $2,636,022.35 of cy pres funds had been
returned to and deposited with the district court Clerk as
custodian of undistributed settlement proceeds.
The bankruptcy court dismissed the claims as either "no longer in
issue" or barred by the Missouri statute of limitations. Oetting
appealed to the district court. Relying on the Court's decision in
Oetting v. Norton, 795 F.3d 886, 891 (8th Cir. 2015), the district
court dismissed the appeal, concluding that Oetting as the class
representative lacked standing because the claims he filed in the
bankruptcy court were not ancillary to the MDL Action but were
independent, separate and distinct actions.
Oetting appeals. The appeal is the fifth appeal of district court
orders arising out of the MDL Action, despite a "global" settlement
approved by the district court in 2002 and affirmed by the Court in
In re BankAmerica Corp. Sec. Litig., 350 F.3d 747 (8th Cir. 2003).
Judge Loken agrees with the bankruptcy court that the $2,636,022.35
claim for the "unreturned" cy pres distribution is "no longer in
issue" because, in accordance with the Court's decision in the Cy
Pres Case, the distribution has been returned by the charity and
deposited with the district court Clerk for ultimate distribution
for the benefit of the NationsBank class. He also agrees with the
bankruptcy court's decision to disallow Oetting's $98,114.34 claim
for the post-settlement fee award the Court vacated in the Cy Pres
Case. Inexplicably, the award has not yet been returned to the
settlement fund; the Trustee claims he is holding the money in an
account he does not consider part of the bankruptcy estate. But
whether any supplemental fee will be awarded to the bankruptcy
debtor out of the settlement fund will be decided by the district
court in the MDL Action, the forum where Oetting wanted his entire
claim determined. He does not understand Oetting to challenge
either of these two rulings on appeal. In any event, they are
affirmed.
As to the $5,879,073.36 negligent supervision claim, the Judge
finds that the district court ruled in the order which Oetting did
not appeal, this part of Claim 1-1 was not an "ancillary" matter in
the MDL Action; it was a core proceeding in the Chapter 7
bankruptcy case. That ruling preserved the bankruptcy court's
jurisdiction to rule on claim allowance issues. Its decision that
this portion of Claim 1-1 is time barred is consistent with
Missouri law and must be affirmed.
With respect to the $1,890,704.65 "disgorgement" claim, the Judge
the bankruptcy court erred in denying Oetting's motion for
abstention on the grounds that the disgorgement claim is not
pending in the MDL Action and is barred by Missouri's five-year
statute of limitations. But he nonetheless concludes that the
bankruptcy court did not err in disallowing this component of
Oetting's Claim 1-1 and 1-2.
Judge Loken holds that it is distressing that distribution of the
NationsBank settlement fund has not been completed 16 years after
the fund was created. The Court's January 2015 decision in the Cy
Pres Case provided the district court a framework for completing
the task. But since April 2015, part of the problem has been that
the Trustee's litigation tactics have hindered and frustrated
compliance with the Court's mandate in the Cy Pres Case. To right
this rudderless ship, he ordered the Trustee to immediately tender
the $98,114.34 unreturned supplemental fee award, together with
interest at the post-judgment rate from Jan. 8, 2015, to the
district court Clerk for deposit into the NationsBank settlement
fund. The bankruptcy court is directed to remove the Trustee if he
does not comply with this directive within 30 days.
The Judge construed Part I of the bankruptcy court's Order dated
Nov. 29, 2016, as lifting the automatic stay in bankruptcy to the
extent it might otherwise apply to the completion of the
proceedings in the MDL Action mandated by the Court's decision in
the Cy Pres Case. He affirmed that ruling. It is now law of the
case in the Chapter 7 proceeding.
In the event the district court in the MDL Action issues a
supplemental award of attorneys' fees to Green Jacobson as the
counsel for the NationsBank class, that award will become property
of the bankruptcy estate.
In the event the district court in the MDL Action orders the
disgorgement of attorneys' fees previously paid to Green Jacobson
as the counsel for the NationsBank class, that order will become or
will form the basis of a claim against the Chapter 7 bankruptcy
estate. Any party designated by the district court to represent
the NationsBank class in enforcing the court's disgorgement order
will have standing to assert that claim in the Chapter 7 case.
The Judge also affirmed the disallowance of Oetting's Claim 1-1 and
1-2.
Each party will bear its own costs on the appeal. The Orders of
the district court dated June 21, 2017 and Dec. 19, 2017 are
reversed in part and the case is remanded to the district court
with instructions to remand to the bankruptcy court for further
proceedings not inconsistent with the Opinion.
A full-text copy of the Court's Dec. 28, 2018 Order is available at
https://is.gd/n1vDc4 from Leagle.com.
David Prange Oetting, for Appellant.
Stephen C. Hiotis -- shiotis@summerscomptonwells.com -- for
Appellee.
David A. Warfield -- dwarfield@thompsoncoburn.com -- for Appellee.
Brian J. LaFlamme -- blaflamme@summerscomptonwells.com -- for
Appellee.
GRIDSUM HOLDING: Faces Gordon Class Action in New York
------------------------------------------------------
Gridsum Holding Inc. said in its Form 20-F report filed with the
U.S. Securities and Exchange Commission on January 7, 2019, for the
fiscal year ended December 31, 2017, that the company is facing
another class action suit in New York entitled, Gordon v. Gridsum
Holding Inc., et al.
On April 25, 2018 and June 25, 2018, purported securities class
action complaints were filed in the United States District Court
for the Southern District of New York against Gridsum Holding Inc.,
Guosheng Qi, the company's chief executive officer and chairman,
and Michael Peng Zhang, the company's co-chief financial officer,
among other defendants.
These lawsuits, which are captioned Xu v. Gridsum Holding Inc., et
al., Case No. 18-CV-3655, and Li v. Gridsum Holding Inc., et al.,
Case No. 18-CV-5749, alleged, among other things, that "false
and/or misleading statements" were made "and/or" the company failed
to disclose its lack of effective controls over financial
reporting, in connection with its announcement on April 23, 2018
that the company's financial statements for the year ended December
31, 2016 should no longer be relied upon.
On September 17, 2018, the court appointed a lead plaintiff
pursuant to the Private Securities Litigation Reform Act of 1995
and ordered the lawsuits consolidated. A consolidated amended
complaint was filed on November 30, 2018 that variously alleges
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, Rule 10b-5 of the Securities Exchange Act of 1934, and
Sections 11 and 15 of the Securities Act for a putative class
period between September 22, 2016 to April 20, 2018.
On July 2, 2018, a third purported securities class action
complaint was filed in the Supreme Court of the State of New York
against the company and certain of its current and former directors
and executive officers, among other defendants, variously alleging
violations of Sections 11, 12(a)(2) and 15 of the Securities Act
against them. The lawsuit, captioned, Gordon v. Gridsum Holding
Inc., et al., Index No. 18-653342, is brought on behalf of a
putative class of shareholders who "purchased or otherwise
acquired" ADSs in the company's initial public offering on
September 23, 2016, and are based on substantially the same
allegations as the consolidated proceeding.
Gridsum Holding said, "We believe that the claims against us are
without merit and intend to vigorously defend against the
litigation."
Gridsum Holding Inc. provides data analysis software for
enterprises and government agencies in China. Its proprietary
distributed data architecture allows its customers to collect and
analyze information; and Gridsum Big Data platform performs
multi-dimensional correlation analysis and analyzes complex
real-time events. The company was founded in 2005 and is
headquartered in Beijing, China.
H&R BLOCK INC: Restricted Inter-hiring of Employees, Claims Davidow
-------------------------------------------------------------------
Janice Davidow, individually and on behalf of others similarly
situated, Plaintiff, v. H&R Block, Inc. and H&R Block Tax Services
LLC, Defendants, Case No. 18-cv-01022 (W.D. Mo., December 31,
2018), seeks injunctive relief and seeks to recover damages,
including treble damages, costs of suit and reasonable attorneys'
fees for violation of the Sherman Act.
H&R Block is consumer tax services provider and provides tax
preparation and assistance services via franchisee-owned offices.
Davidow worked as a seasonal tax preparer for H&R Block in Coral
Springs, Florida for the 2012-2013 tax seasons. He claims that H&R
restricted the solicitation or recruitment of employees between
franchisees by requiring prior approval by management. [BN]
Plaintiff is represented by:
Richard M. Paul III, Esq.
Ashlea Schwarz, Esq.
Laura Fellows, Esq.
PAUL LLP
601 Walnut Street, Suite 300
Kansas City, MO 64106
Tel: (816) 984-8100
Email: Rick@PaulLLP.com
Ashlea@PaulLLP.com
Laura@PaulLLP.com
- and -
Daniel K. Bryson, Esq.
WHITFIELD BRYSON &MASON LLP
900 W. Morgan Street
Raleigh, NC 27603
Tel: (919) 600-5000
Fax: (919) 600-5035
Email: dan@wbmllp.com
- and -
Daniel E. Gustafson, Esq.
Amanda M. Williams, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Facsimile: (612) 339-6622
E-mail: dgustafson@gustafsongluek.com
awilliams@gustafsongluek.com
- and -
Gregory F. Coleman, Esq.
GREG COLEMAN LAW PC
First Tennessee Plaza
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Tel: (865) 247-0080
Email: greg@gregcolemanlaw.com
HOOTERS OF AMERICA: Underpays Waitresses & Bartenders, Mireles Says
-------------------------------------------------------------------
DESTINY MIRELES, individually and on behalf of all others similarly
situated Plaintiffs, v. HOOTERS OF AMERICA, LLC and TW RESTAURANT
HOLDER LLC D/B/A HOOTERS, Case No.: 4:18-cv-4846 (S.D. Tex., Dec.
28, 2018), seeks to recover minimum and overtime wages from Hooters
of America, LLC and Restaurant under the Fair Labor Standards Act.
The Plaintiff brings claims on behalf of herself and a collective
of Defendants’ current and former waitresses and bartenders. The
Plaintiff worked for Defendants as a Hooters Girl from June 24,
2018 until December 4, 2018 at its restaurant located in Baytown,
Texas. The Hooters Girls worked for Defendants during the Claims
Period at Hooters restaurants throughout the country. Although the
Hooters Girls worked at different restaurants, they were all
subjected to the same general policies and practices in violation
of the FLSA. According to job postings from Defendants, a Hooters
Girl is an "exclusive position, reserved only for those who are
entertaining, goal oriented, glamorous, and charismatic." The
Defendants use the term, "Hooters Girls," in reference to their
waitresses and bartenders. The Defendants use this term in their
job descriptions, advertisements, and internal employment policies
and guidelines. The Defendants explain that the ideal "Hooters Girl
is approachable, upbeat, and attentive to the needs of the guests
as she socially engages with and entertains each individual guest
at the front door and on the floor." Among other job-requirements,
the Defendants require its Hooters Girls to have "glamorous hair,
camera ready make-up, and a fit body."
While Defendants expect a lot from their Hooters Girls, Defendants
maintain several illegal policies and practices that deprive the
Hooters Girls of minimum and overtime wages under the FLSA. Thus,
despite the fact that the Hooters Girls regularly worked
non-overtime and overtime hours for the Defendants, Defendants did
not properly compensate the Hooters Girls for such hours, the
lawsuit says.
Hooters of America, LLC is engaged in operating and franchising
restaurants. Its menu includes seafood, sandwiches and tacos,
salads, chicken wings, and soups.[BN]
Attorneys for Plaintiff:
Dennis A. Clifford, Esq.
712 Main Street, Suite 900
Houston, TX 77002
Telephone: 713 999-1833
Facsimile: 866 232-0999
E-mail: dennis@cliffordemploymentlaw.com
HOUSTON INSPECTION: Cornell Seeks Overtime Pay for Inspectors
-------------------------------------------------------------
BRYCE CORNELL on Behalf of Himself and on Behalf of All Others
Similarly Situated, the Plaintiff, vs. HOUSTON INSPECTION FIELD
SERVICES, LLC, the Defendant, Case No.: 3:18-cv-00446 (S.D. Tex.,
Dec. 28, 2018), alleges that Defendant has violated and continues
to violate the Fair Labor Standards Act by misclassifying its
inspectors as independent contractors instead of as employees and
thereby, denying them overtime pay for those hours worked over 40
in a workweek.
According to the complaint, the Defendant operates in the oil and
gas industry and performs pipeline inspection services. To provide
this service, the Defendant employs hundreds of pipeline inspectors
nationwide to inspect pipelines during construction and
periodically during their use. The Defendant's website specifically
states that "Houston Inspection Field Services supplies energy
companies with superior filed service personnel on a temporary or
permanent basis for a wide variety of positions across the U.S."
Defendant's website further states that it "manages all payroll,
accounting, and benefits administration."
The Plaintiff worked for Defendant as an inspector from May of 2016
to December of 2016. The Defendant paid Plaintiff a set day rate
regardless of the number of hours he worked each day or each week.
The Defendant did not pay the Plaintiff a minimum, guaranteed
amount each week. Instead, Plaintiff's compensation varied each
week depending upon the number of days worked. The Plaintiff
regularly worked over 40 hours each week. However, when he worked
more than 40 hours, he was not paid any overtime wages for those
hours worked in excess of 40, the lawsuit says.[BN]
Attorneys for Plaintiff:
Don J. Foty, Esq.
KENNEDY HODGES, L.L.P.
4409 Montrose Blvd., Suite 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@kennedyhodges.com
HUNGARY: Dismissal of Hungarian Jews' Class Suit Reversed
---------------------------------------------------------
In the case, ROSALIE SIMON, ET AL., Appellants, v. REPUBLIC OF
HUNGARY AND MAGYAR ALLAMVASUTAK ZRT., Appellees, Case No. 17-7146
(D.C. App.), Judge Patricia Millett of the U.S. Court of Appeals
for the District of Columbia Circuit (i) reversed the district
court's dismissal of the case, and (ii) denied the Survivors'
request that the case be reassigned.
More than 560,000 Hungarian Jews -- 68% of Hungary's pre-war Jewish
population -- were killed in one year. In 1944 alone, a
concentrated campaign by the Hungarian government marched nearly
half a million Jews into Hungarian railroad stations, stripped them
of all their personal property and possessions, forced them onto
trains, and transported them to death camps like Auschwitz, where
90% of them were murdered upon arrival.
Fourteen of the very few survivors of the Hungarian government's
pogrom, including four United States citizens, filed suit against
the Republic of Hungary and Magyar Allamvasutak Zrt. ("MAV"),
Hungary's state-owned railway company. The litigation seeks
compensation for the seizure and expropriation of the Survivors'
property as part of the Hungarian government's genocidal campaign.
The Survivors are four United States citizens -- Rosalie Simon,
Charlotte Weiss, Rose Miller, and Ella Feuerstein Schlanger -- as
well as Helen Herman and Helena Weksberg from Canada; Tzvi
Zelikovitch, Magda Kopolovich Bar-Or, Zehava Friedman, Yitzhak
Pressburger, Alexander Speiser, Ze-ev Tibi Ram, and Moshe Perel
from Israel; and Vera Deutsch Danos from Australia. Seeking some
measure of compensation for their injuries, the Survivors filed
suit against the Republic of Hungary, MAV, and Rail Cargo Hungaria
Zrt., a private railway company that is the successor-in-interest
to the former cargo division of MAV. The Survivors claim that
their possessions and those of their families were taken from them
by the Defendants as they boarded trains destined for concentration
camps.
In a prior appeal in the case, the Court held that Hungary's and
MAV's seizure of the Survivors' property was an act of genocide,
and that the Survivors had adequately alleged jurisdiction over
MAV's acts of genocidal expropriation in violation of international
law. Although the Survivors' first complaint had not sufficiently
alleged that jurisdiction existed over Hungary, it noted that they
might yet be able to make that showing.
On remand, the district court dismissed the case on two alternative
grounds, both of which are at issue. First, the court held that,
regardless of whether the Survivors' claims against Hungary
amounted to expropriation, principles of international comity
required that the Survivors first try to adjudicate their claims in
Hungary. Second, the court held that, under the doctrine of forum
non conveniens, a Hungarian forum would be so much more convenient
for resolution of the claims as to clearly override the Survivors'
choice to litigate the case in the United States.
The Survivors appeal both grounds for dismissal and request that
the case be reassigned to a new district court judge. Hungary and
MAV argue first that, even if the FSIA provides jurisdiction, the
Survivors were required as a matter of international comity to
first "exhaust" or "prudentially exhaust" their claims in the
Hungarian courts. According to Hungary, FSIA jurisdiction would
attach, if at all, only if Hungary closed its doors to their claims
or the Survivors showed that exhaustion would be futile.
Judge Millett finds that the controlling circuit and the Supreme
Court precedent give no quarter to Hungary's theory of judicial
immunity wrapped in exhaustion clothing. Under the FSIA, courts
are duty-bound to enforce the standards outlined in the statute's
text, and when jurisdiction exists (as it does at least over MAV),
courts have the power, and ordinarily the obligation, to decide
cases and controversies properly presented to them.
She also finds that the district court committed a number of legal
errors that so materially distorted its analysis as to amount to a
clear abuse of discretion. The misplacement of the burden of proof
and the resulting material gaps in the district court's legal
analysis of Hungary's arguments in favor of a Hungarian forum pull
the legs out from under much of the district court's forum non
conveniens analysis.
In addition, she finds that the district court let Hungary off the
burden-of-proof hook by transforming the Survivors' failure to
prove futility in the "prudential exhaustion" inquiry into proof of
Hungary's clear superiority as a forum in the forum non conveniens
analysis. On this record, that was a consequential legal error.
It is hard to understand how a foreign forum can be so clearly more
convenient when the United States government itself does not have a
clear understanding of its nature or operation.
The consequences of the district court's burden-allocation errors
snowballed as the court balanced the competing private and public
interests in the two fora. The ultimate inquiry, again, puts the
onus on Hungary. The law's strong presumption in favor of the
plaintiff's choice of forum, can be overridden only if the "private
and public interest factors strongly favor dismissal. Given the
record in the case, the Judge finds that the district court's
failure to hold Hungary to that task makes this among the rare
cases in which a district court's balancing of factors amounts to
an abuse of discretion.
Lastly, the Survivors request that their case be assigned to a
different district court judge. The Court will reassign a case
only in the exceedingly rare circumstance that a district judge's
conduct is so extreme as to display clear inability to render fair
judgment. That standard has not remotely been met here. The Judge
finds is no evidence that the district court judge acted with
anything but impartiality in the case, and the Court has no reason
to doubt that the District Court will render fair judgment in
further proceedings.
Judge Millett concludes that the district court erred on both
fronts. The Court's recent decision in Philipp v. Federal Republic
of Germany, which post-dated the district court's ruling, squarely
rejected the asserted comity-based ground for declining statutorily
assigned jurisdiction.
With respect to the dismissal on forum non conveniens grounds, the
district court committed material legal errors at each step of its
analysis. A proper application of the relevant factors leaves no
basis for designating Hungary the strongly preferred location for
the litigation because Hungary is not home to any identified
plaintiff, has not been shown to be the source of governing law,
lacks a process for remediation recognized by the United States
government, and is not the only location of material amounts of
evidence. There is, in short, far too little in the record to
designate Hungary a more convenient forum than the one chosen by
the Survivors.
For these reasons, she reversed and remanded for further
proceedings consistent with her Opinion.
A full-text copy of the Court's Dec. 28, 2018 Order is available at
https://is.gd/6gE0Xm from Leagle.com.
Paul G. Gaston argued the cause for appellants. With him on the
briefs were Charles S. Fax -- cfax@rwlls.com -- Liesel J. Schopler,
L. Marc Zell -- mzell@fandz.com -- and David H. Weinstein --
weinstein@wka-law.com.
Samuel J. Dubbin was on the brief for amici curiae Holocaust
Survivors Foundation USA, Inc., et al. in support of
plaintiffs-appellants.
Geoffrey M. Klineberg -- gklineberg@kellogghansen.com -- and Daniel
S. Severson -- dseverson@kellogghansen.com -- were on the brief for
amicus curiae Professor William S. Dodge in support of
plaintiffs-appellants.
Gregory S. Silbert -- gregory.silbert@weil.com -- argued the cause
for appellees. With him on the brief was Konrad L. Cailteux --
konrad.cailteux@weil.com.
IPASS INC: Faces Class Action in Delaware Over Merger
-----------------------------------------------------
Rose Krebs, writing for Law360, reports that a stockholder filed a
proposed class action in Delaware federal court on Dec. 18 claiming
that wireless connectivity technology company iPass Inc. has failed
to provide enough financial information to shareholders on merger.
[GN]
ISIS PARENTING: Calixto WARN Act Suit Dismissal Affirmed
--------------------------------------------------------
Judge Scott L. Kafker of the Supreme Judicial Court of
Massachusetts, Middlesex, affirmed the Superior Court's dismissal
of the case, JILLIAN CALIXTO & another vs. HEATHER COUGHLIN &
others, Case No. SJC-12515 (Mass.).
The primary issue presented is the interplay, if any, between two
employee protection statutes: G. L. c. 149, Section 148 ("Wage
Act"), and the Federal Worker Adjustment and Retraining
Notification Act ("WARN Act"). The Defendant corporate officers
directed ISIS Parenting, Inc. where the Plaintiff employees worked
until it abruptly ceased operations and terminated its entire
workforce.
The employees were among the more than 200 people who worked at the
company, which operated for more than a decade and had several
stores in the Boston area. At some point the company ran into
financial difficulties, and its management decided to stop
operating. On Jan. 14, 2014, without any prior warning, one of the
officers informed the company's employees that the company was
shutting down and their employment was terminated immediately.
That fall, the employees brought a class action lawsuit against the
company in the U.S. District Court for the District of
Massachusetts, alleging a violation of the WARN Act. The WARN Act
provides that an employer, defined as a "business enterprise" that
employs at least 100 full-time employees or at least 100 full- and
part-time employees who collectively work at least 4,000
non-overtime hours per week, will not order a plant closing or mass
layoff until the end of a 60-day period after the employer serves
written notice of such an order on each affected employee or the
employees' representative. If an employer fails to comply with the
60-day notice requirement, it will be liable to each aggrieved
employee who suffers an employment loss as a result of such closing
or layoff for "back pay" and employee benefits covering each day of
the notice violation. The WARN Act also states that the rights and
remedies provided to employees by the chapter are in addition to,
and not in lieu of, any other contractual or statutory rights and
remedies of the employees, and are not intended to alter or affect
such rights and remedies.
The company did not defend the lawsuit, and the Federal District
Court judge eventually awarded a nearly $2 million default judgment
under the WARN Act to the employees. After failing to collect any
of this judgment amount from the company due to the company's
insolvency, the employees brought the putative class action in the
Superior Court against the officers directly.
The officers moved to dismiss the complaint for failure to state a
claim. The Superior Court judge granted the motion, finding that
the Federal District Court's WARN Act award does not qualify as
'earned wages' giving rise to a claim under the Wage Act. The
appeal followed.
Judge Kafker concludes that an employee who is terminated with
inadequate notice and entitled to WARN Act damages for the amounts
he or she would have earned had proper notice been provided has not
"earned wages" for work actually performed and presently due as
required by the Wage Act. He thus holds that WARN Act damages are
not wrongfully withheld wages for which the officers can be held
liable under the Wage Act.
The Judge further concludes that the employees' breach of fiduciary
duty claim is improperly brought: while styled as a derivative
claim, it simply repackages the employees' primary argument that
the officers committed a breach of duties owed to them under the
WARN Act. By its express terms, the WARN Act is the exclusive
remedy for WARN Act violations. The Judge therefore affirms
dismissal of the claim against the officers for breach of fiduciary
duty.
Because he concludes that WARN Act damages are not "earned wages"
under the Wage Act, and that the employees have not asserted a
viable claim for breach of fiduciary duties, Judge Kafker affirmed
the Superior Court judge's grant of the officers' motion to
dismiss.
A full-text copy of the Court's Dec. 28, 2018 Order is available at
https://is.gd/skBDU1 from Leagle.com.
Nicholas J. Rosenberg -- nick@gardnerrosenberg.com -- for the
plaintiffs.
David G. Thomas -- thomasda@gtlaw.com -- (Mian R. Wang --
wangm@gtlaw.com -- also present) for the defendants.
The following submitted briefs for amici curiae:
Christopher H. Lindstrom -- clindstrom@nutter.com -- & Matthew P.
Ritchie -- mritchie@nutter.com -- for Greater Boston Chamber of
Commerce.
Ben Robbins & Martin J. Newhouse for New England Legal Foundation.
Arthur P. Murphy -- amurphy@mhtl.com -- & Geoffrey P. Wermuth --
gwermuth@mhtl.com -- for Murphy, Hesse, Toomey & Lehane, LLP.
JGAJ PETROLEUM: Onkar Singh Seeks Overtime Wages
------------------------------------------------
ONKAR SINGH, on his own behalf and on behalf of others similarly
situated, the Plaintiff, vs. JGAJ PETROLEUM, INC. d/b/a 310
Broadway Mobil; VARINDER SINGH, and RAM GRUPAL SHETTY, the
Defendants, Case No. 1:18-cv-12327 (S.D.N.Y., Dec. 29, 2018), seeks
to recover unpaid overtime wages, liquidated damages, prejudgment
and post-judgement interest; and or attorney's fees and cost under
the Fair Labor Standards Act, and the New York Labor Law.
According to the complaint, the Defendants have willfully and
intentionally committed widespread violations of the FLSA and NYLL
by engaging in pattern and practice of failing to pay its
employees, including Plaintiff, minimum wage for each hour worked
and overtime compensation for all hours worked over 40 each
workweek, the lawsuit says.[BN]
Attorney for the Plaintiff and proposed FLSA Collective:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 119
Flushing, NY 11355
Telephone: (718) 762-1324
JUUL: Altria to Invest in Business Amid Vaping Class Action
-----------------------------------------------------------
Sara Brittany Somerset, writing for Forbes, reports that Big
Tobacco company Altria, makers of Marlboro cigarettes, invests in
e-cigarette company Juul, while continuing its efforts to
monopolize the marijuana industry. On Dec. 21, Altria, one of the
world's largest producers and marketers of tobacco products,
announced it is investing $12.8 billion in vaping giant, Juul, a
company that controls 68% of the e-cigarette market. Altria is
taking a 35% stake in Juul Labs at a $38 billion valuation. Altria
will discontinue its Verve oral nicotine, as well as its MarkTen
and Green Smoke e-cigarette products, now that is has a minority
stake in what was their largest competitor.
The move comes just a week after the Marlboro maker announced it is
investing $1.8 billion in Canadian marijuana grower, Cronos Group.
Incidentally, vaping marijuana has risen significantly, up more
than 50% among all age groups.
According to the U.S. Surgeon General, vaping tobacco rose 900%
among high school students between 2011 and 2015.
Vape components, often made cheaply in China, contain harmful
chemicals such as polyglycol and formaldehyde.
Since 2009, the FDA has pointed out that (even tobacco-free)
e-cigarettes contain "detectable levels of known carcinogens and
toxic chemicals to which users could be exposed."
Juul has and continues to garner criticism for how its products are
appealing to and getting into the hands of minors. Both the Surgeon
General and FDA chief Dr. Scott Gotlieb refers to "Juuling," or
teenage vaping as "an epidemic." The company is even the subject of
a class action lawsuit alleging its marketing specifically targets
minors. Juul stands accused of targeting teens with a false sense
of safety and luring them into addiction. Big Tobacco historically
and habitually targets children.
Additionally, the acquisition by Altria exposes Juul's hypocrisy of
marketing their e-cigarette devices as a smoking cessation method.
Vaping one Juul cartridge or "pod" is equivalent to smoking an
entire pack of cigarettes.
"We understand the controversy and skepticism that comes with an
affiliation and partnership with the largest tobacco company in the
U.S.," Juul CEO Kevin Burns said in a statement. "We were
skeptical as well. But over the course of the last several months
we were convinced by actions, not words, that in fact this
partnership could help accelerate our success switching adult
smokers." . . . and fatten the founders' wallets.
Juul employees are essentially being bribed with huge bonuses to
remain at the company after a major shift in its ethos.
"I am going to be Captain Obvious here: A company that sells
cigarettes and suppressed knowledge of their harmful effects for
decades, did not acquire its largest electronic competitor to help
people quit smoking," says former smoker Jack Holub, who quit
smoking years ago, after he caught his teenage daughter smoking.
New York City Mayor Bill de Blasio said in a press conference that,
"Big Tobacco victimized my father. Some people are more vulnerable
to addiction than others. I can tell you over my dead body will big
corporate marijuana do that to New Yorkers."
The mayor also vowed to keep corporate cannabis out of New York
City. "Tragically, we know what happens when corporations run the
show. For decades, Big Tobacco knew its product was both deadly and
addictive. But it denied, obscured, advertised, and lobbied its way
into America's homes, targeting children," said the mayor.
"Big Tobacco is officially going all in with the marijuana industry
now," said Dr. Kevin Sabet, president of Smart Approaches to
Marijuana. "The men in suits who once told America that nicotine is
not addictive are now doing the same with marijuana, and laughing
all the way to the bank. Big Tobacco's involvement caused deaths
from tobacco to skyrocket. With those same characters now cornering
the pot industry, we can expect to see this addiction-for-profit
industry become even more nefarious."
In Dr. Sabet's purview, it is only a matter of time before
canna-corps start tinkering with their pot to make it increasingly
addictive for consumers.
For now, the healthier alternative to vaping, for people who want
to quit smoking cigarettes, is to try nicotine patches.
Additionally, Public Health Insider published tips from teachers on
how to talk to children about the dangers of "Juuling." [GN]
LENMAR RESTAURANT: Campos Sues Over Unpaid Wages, Missed Breaks
---------------------------------------------------------------
Victor Campos, on behalf of herself, FLSA Collective Plaintiffs and
the Class, Plaintiff, v. Lenmar Restaurant Inc. and William
Bruckman, Defendants, Case No. 18-cv-12359, (S.D. N.Y., December
31, 2018), seeks to recover unpaid overtime, compensation for
retaliation, liquidated damages, statutory penalties and attorneys'
fees and costs pursuant to the New York Labor Law and the Fair
Labor Standards Act.
Defendants operate an Italian restaurant under the trade name
"Pietro's" located at 232 East 43rd Street, New York, NY 10017.
Campos was hired as a busser. Lieble was regularly required to work
double-shifts and was deducted thirty minutes as a rest break which
he did not enjoy. Defendants also failed to provide proper wage
statements throughout his employment, says the complaint. [BN]
Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Tel: (212) 465-1188
Fax: (212) 465-1181
LTI TRUCKING: J. Ratliff's FCRA Suit Remanded to State Court
------------------------------------------------------------
In the case, JEROME RATLIFF, JR., Plaintiff, v. LTI TRUCKING
SERVICES, INC., Defendant, Case No. 4:18CV1032 RLW (E.D. Mo.),
Judge Ronnie L. White of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, (i) granted the Plaintiff's
Motion for Remand, and (ii) denied as moot the Defendant's Motion
to Dismiss for Lack of Subject Matter Jurisdiction.
The Plaintiff initially filed a putative class action in the
Northern District of Illinois alleging violations of the Fair
Credit Reporting Act ("FCRA"). He claimed Defendant violated
procedural requirements of the FCRA by failing to provide certain
notices required by 15 U.S.C. Section 1681b(b)(3)(B) afterthe
Defendant declined to hire him allegedly based on negative
information disclosed in a pre-employment background check.
The Defendant moved to dismiss the Plaintiff's petition for lack of
subject matter jurisdiction, arguing that the Plaintiff lacked
standing under Article III of the United States Constitution.
District Judge Jorge L. Alonso agreed with the Defendant, found
federal courts lacked jurisdiction over the case, and dismissed the
case.
After the case was dismissed in federal court, the Plaintiff filed
a petition in the Circuit Court for the City of St. Louis. The
Defendant removed the case to federal court citing federal question
jurisdiction and -- on the same day -- filed a Motion to Dismiss
for Lack of Subject Matter Jurisdiction. The Plaintiff
subsequently filed a Motion for Remand.
The Plaintiff argues the Court should remand the case to state
court. Because the Northern District of Illinois had already
issued an order finding the Plaintiff lacked standing to proceed in
federal court thereby depriving federal courts of subject matter
jurisdiction, the Plaintiff contends the doctrine of collateral
estoppel prohibited Defendant from removing the case to the Court
in the first place. Consequently, he asserts 28 U.S.C. Section
1447(c) compels the Court to remand the case back to state court.
The Defendant, on the other hand, argues the Court should dismiss
the case outright because the state would also conclude it lacked
subject matter jurisdiction and dismiss the case.
Judge White finds that absent clear direction from the Supreme
Court or the Eighth Circuit adopting a so-called "futility
exception," he is compelled by the clear directive of 28 U.S.C.
Section 1447(c) and remanded the case. The doctrine of judicial
estoppel also supports remand.
Finally, the Plaintiff included in his Motion for Remand a request
for attorneys' fees pursuant to 28 U.S.C. § 1447(c). His Reply
Memorandum in Support of His Motion for Remand includes a
declaration of one of the attorneys who has worked on the case. In
the declaration, the attorney states he and one other attorney
performed a combined 29.8 hours of legal work dealing with the
issue of remand.
Specifically, the declaration asserts the declarant attorney
performed 2.2 hours at a rate of $5850 and the other attorney
performed 27.6 hours at a rate of $425 for a combined total of
$10,594.50 worth of legal work. The Plaintiff's counsel, however,
has failed to provide itemized time records supporting the
calculation of their hours. Without such itemized records, the
Court is unable to conduct a reasonableness review as required by
case law. Consequently, the request for attorneys' fees is
denied.
Accordingly, Judge White granted the Plaintiff's Motion for Remand.
The matter will be remanded to the Twenty-Second Circuit of
Missouri in City of St. Louis, Missouri for further proceedings.
An order of remand accompanies the Order. The Judge denied as moot
the Defendant's Motion to Dismiss for Lack of Subject Matter
Jurisdiction.
A full-text copy of the Court's Jan 2, 2019 Memorandum and Order is
available at https://is.gd/21wcXA from Leagle.com.
Jerome Ratliff, Jr., individually and on behalf of all others
similary situated, Plaintiff, represented by Adam C. York --
ayork@kamberlaw.com -- KAMBERLAW LLC, pro hac vice, Matthew H.
Armstrong, ARMSTRONG LAW FIRM, LLC & Michael J. Aschenbrener --
masch@kamberlaw.com -- KAMBERLAW LLC.
LTI Trucking Services, Inc., a Missouri corporation, Defendant,
represented by Jill R. Rembusch --
jrembusch@summerscomptonwells.com -- SUMMERS AND COMPTON, LLC.
LULAROE: Supplier Files $48.7MM Lawsuit Amid Class Actions
----------------------------------------------------------
Jack Katzanek, writing for The Press-Enterprise, reports that
LuLaRoe, the Corona-based husband-and-wife-operated fashion
wholesaler that markets its merchandise through individual
freelance salespeople, has been sued for more than $48.7 million by
its major supplier, according to court documents.
Suit alleges creation of shell companies
The lawsuit, filed Nov. 29 in Riverside County Superior Court by
Providence Industries, alleges that LuLaRoe has not paid for any of
the clothing it ordered from Providence more than seven months ago.
It also accuses the company and its founders, Mark and DeAnne
Stidham, of creating numerous shell companies to hide its assets
from Providence and other creditors.
Seven of those alleged shell companies were named as co-defendants
in the suit.
The lawsuit additionally claims there are reasons to believe that
LuLaRoe is becoming insolvent, pointing out that a court ruling in
California directs an insolvent company to place its remaining
assets in a trust fund so creditors can be paid.
"The plaintiff believes that LuLaRoe has sold the products and
absconded with the proceeds of the sale without paying plaintiffs
for the very same products," the suit reads. Long Beach-based
Providence Industries, which designs, manufactures and distributes
clothing, said the money from those sales is funding a "lavish
lifestyle" for LuLaRoe's principals.
LuLaRoe says the claims are without merit
A LuLaRoe spokesperson declined to discuss any of the specifics
mentioned in the suit.
"We believe the claims in this case are completely without merit
and will fight vigorously against them," the spokesperson in an
email. "Given this is pending litigation, we cannot comment on the
specifics."
The company has said sales in 2017 hit $2.3 billion. The suit
contends that LuLaRoe never intended to pay its bills for the
material it has purchased.
Providence Industries' representatives claim that, in September,
Mark Stidham said, "Look, guys, I am not going to pay you guys a
(expletive) dime unless a judge orders me to pay it, and DeAnne and
I will take our two to three hundred million dollars to the
Bahamas, and (expletive) everything."
According to the lawsuit, the Stidhams have acquired assets with
the intent of shielding LuLaRoe from creditors. These assets
include companies that own expensive race cars, private airplanes,
a distribution facility in South Carolina and a ranch in Wyoming.
The suit claims they own 17 individual properties, all set up as
limited liability companies.
Thirteen of those property-related LLCs were set up in December
2017, after a series of class action lawsuits were filed against
LuLaRoe late in that year, according to the suit.
A multitude of legal actions
The 2017 legal actions -- as many as 13 lawsuits -- were filed by
retailers, private citizens who signed up with LuLaRoe to buy
clothing from the company and sell it at a markup, either online,
door-to-door or at parties. At one point there were close to 80,000
retailers, called "independent fashion consultants," across the
country.
The suits alleged that LuLaRoe was operating a pyramid scheme, that
it was maintaining an unfair policy for the return of unsold
merchandise and that it had provided some poorly made products
That, in turn, caused many salespeople to leave the company, which
hurt its bottom line.
The November 2018 suit maintains that the magnitude of this decline
was not disclosed to Provident, to induce the company to continue
to supply LuLaRoe.
Riverside County's Superior Court has set a May 28, 2019 date for a
case management conference. [GN]
MANITOBA: Gov't Faces Class Action Over MDC Patient Abuses
----------------------------------------------------------
Elisha Dacey, writing for Global News, reports that a
multi-million-dollar class-action lawsuit filed on behalf of
patients who lived in a Portage la Prairie development centre
alleges the province failed to prevent rape, abuse and starvation
at the institution.
The lawsuit, filed on Oct. 31 against the province, says the
Government of Manitoba was negligent in its operations of the
Manitoba Development Centre and should pay former patients $50
million.
"The Crown failed to reasonably consider or act upon the knowledge
or recommendations it had been provided … the Crown was also
aware of the abuse occurring at MDC yet failed to take any
reasonable action to prevent it from continuing or occurring," the
lawsuit reads.
The suit was filed by former resident David Weremy, 74, who lived
at the centre for about 15 years until he was last discharged in
1977. Suffering from an intellectual disability, the statement of
claim says he was told he "suffered from mental retardation" and
placed in the centre.
Mr. Weremy alleges during his time at MDC he was repeatedly
sexually assaulted by other residents, witnessed residents being
sexually and physically assaulted nightly, and that he and other
patients were consistently underfed.
"He often witnessed other residents not only eating out of garbage
cans as a source of food, but also witnessed residents eating feces
out of toilet bowls."
The statement of claim says Mr. Weremy tried to escape nine times,
only to be captured and punished, forced to "sleep naked on the
floor without a mattress."
Lawyer David Rosenfeld told 680 CJOB on Dec. 19 that Mr. Weremy has
an "incredible strength of character" to come forward and build a
case.
"[It's hard] to take the next step and try and be a champion on
behalf of those who don't come forward themselves."
The problems at the MDC have been known for decades, the statement
of claim says. Media reports, government reports and lawsuits over
the years have documented everything from residents being stripped
naked as a behavioural punishment and verbal and physical abuse to
derogatory language, physical abuse, choking, kicking, slapping,
professional misconduct, overcrowding, numerous attempts by
residents to escape only to be punished upon return, unsupervised
locked wards in the evenings, and the death of a resident after an
outing.
Despite numerous reports and recommendations, the lawsuit alleges
few or no improvements were made at the centre to prevent the abuse
of the patients there.
"The Crown knew or ought to have known that, as a consequence of
the above-documented failures, that the plaintiff and the residents
of MDC would suffer … both immediate and long-term mental,
emotional, psychological and physical harm.
"As a result of the aforementioned injuries, Class members have
required and will continue to require further medical treatment,
rehabilitation, counselling and other care."
Rosenfeld put the blame squarely on the Province.
"The province of Manitoba … set up this institution for failure.
It set up the staff for failure.
"It set up a toxic environment for these residents."
"The province has received the statement of claim on this matter
and is currently reviewing it in order to prepare our statement of
defence," said a spokesperson from the province.
"It must be filed by January 29."
The MDC first opened in 1890 and is still home to about 160
residents. The centre no longer accepts new patients, but at its
peak in the 1960s, had about 1,200 people living there. It has had
several names over its years of operation.
The population shrunk in the 1980s as the Manitoba government
sought to integrate people with disabilities into their
communities. [GN]
MARKEL CORPORATION: Faces Bergen Suit Over Share Price Drop
-----------------------------------------------------------
David Bergen, individually and on behalf of all others similarly
situated, Plaintiff, v. Markel Corporation, Thomas S. Gayner,
Richard R. Whitt, III, Anne G. Waleski, and Jeremy A. Noble,
Defendants, Case No. 1:19-cv-00319 (S.D. N.Y., January 11, 2019) is
a class action on behalf of persons and entities that purchased or
otherwise acquired Markel securities between July 26, 2017 and
December 6, 2018, inclusive, seeking to pursue remedies under the
Securities Exchange Act of 1934.
On December 6, 2018, the Company disclosed that it had been
contacted by the US and Bermuda authorities on November 30, 2018
regarding "loss reserves recorded in late 2017 and early 2018 at
Markel CATCo Investment Management Ltd and its subsidiaries". On
this news, the Company's share price fell $99.70 per share, more
than 8%, to close at $1048.23 per share on December 7, 2018, on
unusually high trading volume.
The complaint says the Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to
investors: (1) that the Company's subsidiaries did not
appropriately record loss reserves; (2) that, as a result, the loss
reserves would need to be adjusted and/or restated; (3) that these
misleading accounting practices would lead to regulatory scrutiny
and financial loss to investors; and (4) that, as a result of the
foregoing, Defendants' positive statements about the Company's
business, operations, and prospects, were materially misleading
and/or lacked a reasonable basis.
Due to the Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members suffered significant
losses and damages, says the complaint. Plaintiff David Bergen
purchased Markel securities during the Class Period.
Markel is a holding company that purports to market and underwrite
specialty insurance products and programs. It is incorporated under
the laws of Virginia with its principal executive offices located
in Glen Allen, Virginia. Markel's common stock trades on the New
York Stock Exchange ("NYSE") under the symbol "MKL".
Thomas S. Gayner has been the Co-Chief Executive Officer of the
Company since January 2016. Richard R. Whitt, III has been the
Co-Chief Executive Officer of the Company since January 2016. Anne
G. Waleski was the Chief Financial Officer of the Company from 2010
to September 5, 2018. Jeremy A. Noble has been the Chief Financial
Officer of the Company since September 5, 2018.[BN]
The Plaintiff is represented by:
Lesley F. Portnoy, Esq.
GLANCY PRONGAY & MURRAY LLP
230 Park Avenue, Suite 530
New York, NY 10169
Phone: (212) 682-5340
Facsimile: (212) 884-0988
Email: lportnoy@glancylaw.com
- and -
Lionel Z. Glancy, Esq.
Robert V. Prongay, Esq.
Lesley F. Portnoy, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Phone: (310) 201-9150
Facsimile: (310) 201-9160
MARKETSOURCE INC: Court Denies Class Certification in Delgado
-------------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division, issued an Order denying Plaintiffs'
Motion for Class Certification RAY DELGADO, Plaintiff, v.
MARKETSOURCE, INC., Defendant. Case No. 17-CV-07370-LHK. (N.D.
Cal.).
Plaintiff Ray Delgado (Plaintiff) brings this putative class action
against Defendant Marketsource, Inc. (Defendant). The Plaintiff
alleges that the Defendant violated California Labor Code Sections
201 and 203. The Plaintiff supervised employees of the Defendant
who sold cellular phones inside of Target retail locations in
California. The Plaintiff was responsible for staffing these sales
departments, as well as managing inventory and tracking supplies.
The Plaintiff terminated at least three of the Defendant's
employees during his employment with the Defendant.
The Plaintiff filed a motion to certify a class of: "All employees
who were employed by Defendant in the State of California at any
time from November 30, 2016, through the present, whose employment
was terminated."
The Plaintiff's motion in support of class certification identifies
a single purported common question: Does Defendant's common
practice of paying final wages by Federal Express (FedEx) or direct
deposit violate California Labor Code Sections 201-203 because the
practice did not ensure that final wages would be received on the
date of termination? However, the Plaintiff's proposed question
does not satisfy Rule 23(a)(2)'s commonality requirement or Rule
23(b)(3)'s predominance requirement.
The Plaintiff asserts an erroneous theory that the California Labor
Code mandates physical hand delivery of final wages. For example,
Plaintiff asserts that in accordance with Defendant's admitted
practice, Plaintiff was not physically handed his final paycheck
when he was fired. In his deposition, Plaintiff testified that an
employee Plaintiff terminated did not receive his final pay because
Plaintiff didn't have a check for him.
Contrary to the Plaintiff's erroneous theory, the California Labor
Code explicitly authorizes direct deposit payment of final wages.
The Labor Code provides that the employer may pay the wages earned
and unpaid at the time the employee is discharged by making a
deposit authorized pursuant to this subdivision, provided that the
employer complies with the provisions of this article relating to
the payment of wages upon termination. That subdivision authorizes
an employer to deposit wages due or to become due in an account in
any bank, savings and loan association, or credit union of the
employee's choice. Clearly, California Labor Code Section 213(d)
authorizes employers to pay final wages by direct deposit.
Plaintiff does not dispute this.
Thus, the Plaintiff's own circumstances demonstrate that the
Defendant's payment of final wages by direct deposit or FedEx
itself does not determine whether a violation of California Labor
Code Sections 201 and 203 has occurred. The Plaintiff, by contrast,
has provided evidence of neither. The Plaintiff does not identify a
single class member, out of over 5,000, who suffered a violation
because of the Defendant's practice. Thus, the Plaintiff has failed
to prove by a preponderance of the evidence that the Defendant's
practice operates as an unwritten, de facto policy of
non-compliance that resulted in widespread violations.
Therefore, Plaintiff's proposed question is not a common contention
that determines whether class members have suffered the same
injury.
The factual disputes regarding the Plaintiff's termination, which
focus on the effective date of the Plaintiff's termination, not the
Defendant's direct deposit practice, only reinforce the degree to
which fact-intensive, individualized inquiries would predominate in
determining the Defendant's liability to Plaintiff and every single
member of the proposed class. Therefore, the Plaintiff has not
satisfied Rule 23(a)(2)'s commonality requirement or Rule
23(b)(3)'s even more demanding predominance requirement.
The individualized circumstances of the Plaintiff's termination
also mean that the Plaintiff has failed to satisfy Rule 23(a)(3)'s
typicality requirement. Rule 23(a)(3) requires plaintiffs to show
that the claims or defenses of the representative parties are
typical of the claims or defenses of the class. Typicality is
satisfied when each class member's claim arises from the same
course of events, and each class member makes similar legal
arguments to prove the defendants' liability.
Here, no other class member's claims arise from the same course of
events as the Plaintiff's claim.
Given that the Plaintiff offers no evidence to suggest that the
Defendant's direct deposit practice led to the Plaintiff's alleged
late final wages, or that any other class member experienced
similar circumstances, the Plaintiff has not demonstrated that his
claim is typical of the class as a whole. Therefore, the Plaintiff
has also not met Rule 23(a)(3)'s typicality requirement.
Adequacy
The Plaintiff has not satisfied Rule 23(a)(4), which requires the
representative parties to fairly and adequately protect the
interests of the class.
The Plaintiff's own testimony reveals that the Plaintiff has
conflicts of interest with other potential class members. The
Plaintiff testified in his deposition that the Plaintiff terminated
at least three different employees and that he believes those
employees did not timely receive their final wages because the
Plaintiff didn't have a check to hand the employees at the
termination meeting. The Defendant notes that the Plaintiff does
not know whether those employees timely received their final wages
through direct deposit or FedEx.
The Plaintiff has proffered no evidence that the Defendant's
practice alone can serve as common proof of the Defendant's
liability. Proving the class members' claims would require
individualized assessments into the circumstances of each class
member's final wage payments and thus into the actions of
supervisors like the Plaintiff. As part of the Defendant's effort
to timely pay final wages, the Defendant requires supervisors to
consult with human resources regarding an employee's termination,
complete an employee status form, and timely complete an employee's
time card before termination.
Therefore, due to the Plaintiff's conflict of interest with
potential class members, the Plaintiff has not satisfied Rule
23(a)(4)'s adequacy requirement.
A full-text copy of the District Court's December 20, 2018 Order is
available at https://tinyurl.com/y7gvsu98 from Leagle.com.
Ray Delgado, Plaintiff, represented by Kristen Michelle Agnew --
kagnew@diversitylaw.com -- Diversity Law Group, APC, Larry W. Lee
-- lwlee@diversitylaw.com -- Diversity Law Group, P.C., Nicholas
Rosenthal -- nrosenthal@diversitylaw.com -- Diversity Law Group &
William Lucas Marder -- bill@polarislawgroup.com -- Polaris Law
Group, LLP.
MarketSource, Inc., a Maryland Corporation, Defendant, represented
by Kevin Dennis Sullivan -- ksullivan@ebglaw.com -- Epstein Becker
& Green, P.C. & Michael Stuart Kun -- mkun@ebglaw.com -- Epstein
Becker & Green, P.C..
MDL 2741: Allen v Monsanto over Roundup Sales Consolidated
----------------------------------------------------------
The class action lawsuit titled CHARLES ALLEN and SHERYL ALLEN, the
Plaintiffs, v. MONSANTO COMPANY, Defendant, Case No. 4:18-cv-01994,
was transferred from the U.S. District Court for the Eastern
District of Missouri to the U.S. District Court for the Northern
District of California (San Francisco) on Jan. 2, 2019. The
Northern District of California Court Clerk assigned Case No.
3:19-cv-00007-VC to the proceeding.
This is an action for damages suffered by Plaintiffs as a direct
and proximate result of Defendant negligent and wrongful conduct in
connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Allen case is being consolidated with MDL 2741 in re: Roundup
Products Liability Litigation. The MDL was created by Order of the
United States Judicial Panel on Multidistrict Litigation on October
3, 2016. These actions share common factual questions arising out
of allegations that Monsanto's Roundup herbicide, particularly its
active ingredient, glyphosate, causes non-Hodgkin's lymphoma.
Plaintiffs each allege that they or their decedents developed
non-Hodgkin's lymphoma after using Roundup over the course of
several or more years. Plaintiffs also allege that the use of
glyphosate in conjunction with other ingredients, in particular the
surfactant polyethoxylated tallow amine (POEA), renders Roundup
even more toxic than glyphosate on its own. Issues concerning
general causation, the background science, and regulatory history
will be common to all actions.
In its October 3, 2016 Order, the MDL Panel found that the actions
in this MDL involve common questions of fact, and that
centralization in the Northern District of California will serve
the convenience of the parties and witnesses and promote the just
and efficient conduct of this litigation. Centralization will
eliminate duplicative discovery; prevent inconsistent pretrial
rulings (including with respect to discovery, privilege, and
Daubert motion practice); and conserve the resources of the
parties, their counsel, and the judiciary. Presiding Judge in the
MDL is Hon. Judge Vince Chhabria. The lead case is
3:16-md-02741-VC.[BN]
Attorneys for Plaintiffs:
Seth S. Webb, Esq.
BROWN & CROUPPEN, P.C.
211 North Broadway, Suite 1600
St. Louis, MO 63102
E-mail: sethw@getbc.com
Telephone: (314) 222-2222
Facsimile: (314) 421-0359
MDL 2804: Danville City May Take Legal Action Over Opioid Crisis
----------------------------------------------------------------
According to GoDanRiver.com Editorial Board, the opioid crisis has
ravaged America's rural heartland for more than a decade, wreaking
havoc among some of the poorest, most vulnerable communities.
Hundreds of thousands of people have died; families have been split
asunder; and law enforcement and emergency responders taxed almost
beyond their capabilities.
Our part of Virginia hasn't escaped this deadly epidemic, and while
Southside and Central Virginia hasn't taken the body blows of
communities in states such as West Virginia or Ohio, local, per
capita death tolls and addiction rates have been among the highest
in the commonwealth. And the pain of losing a loved one is as great
for one family as it is for a hundred.
Combating this crisis is a war that will take place on many fronts,
including the courtroom as states and local governments go after
the pharmaceutical companies that manufacture the highly addictive
synthetic painkillers and market them in the medical community.
Danville City Council adopted a resolution declaring the opioid
crisis to be a "public nuisance", a first step to putting the city
on a course to take legal action against Big Pharma. The Board of
Supervisors of Halifax County, another Southside community hit hard
by opioid addiction, is considering taking similar action.
Pittsylvania County and the city of Martinsville have already filed
or joined suits against major pharmaceutical firms and
distributers. Virginia, under Attorney General Mark Herring, is one
of the 41 states that already have initiated legal action against
the drugmakers. Right now, there are 11 such cases that have been
filed by Virginia localities with a petition on file to combine
them into a single class action suit.
Earlier in 2018, the Centers for Disease Control and Prevention
updated its estimate for the 2017 death toll, projecting that
opioid overdoses resulted in the deaths of more than 72,000
Americans, an increase of more than 10 percent from the 2016 tally
of 64,000. That's higher than the highest yearly tolls in the
HIV/AIDS crisis, gun deaths and car crashes. It's even higher than
the death toll for the entire Vietnam War, in which there were
58,220 fatal casualties.
Lawyers involved in the numerous class action suits are taking a
page from the playbook of their colleagues a generation ago who
went after Big Tobacco. As the cases proceeded and the discovery
process began, an eventual tsunami of documents revealed the
cigarette manufacturers knew about cancer risk of their products
going back decades but proceeded to market their "death sticks" to
anyone willing to pay for a pack of smokes: teenagers, women,
African-Americans and other minorities. And the manufacturers used
any marketing means available to them to push their product and
make money: fake studies purporting to show the "health" benefits
of cigarettes, product placement in films or TV shows, giveaways to
troops overseas in "care" packages.
Early revelations from the opioid class action suits already in the
court system show similar patterns of behavior by the drugmakers.
Marketers tried to create branding campaigns for the synthetic
painkillers, portraying them as safer and more effective than such
traditional pain medications as morphine, a natural opioid. Drug
company sales representatives targeted more members of the medical
community other than just specialists in pain management: For
example, early on it became quite common even for dentists to
prescribe an opioid painkiller following such common procedures as
having a cavity filled or a root canal. When before the response
would have been to take a couple of Tylenol tablets, the "modern"
response was to prescribe a high-powered opioid.
Lawyers have also uncovered how drugmakers willfully ignored signs
of a growing crisis, signs such as shipment of hundreds of
thousands of pills to pharmacies in small towns or doctors writing
inordinately high numbers of prescriptions for opioids. So long as
the pills were flowing out of the manufacturing plants and the
dollars were flowing in, the companies were happy.
When Big Tobacco waved the white flag of surrender in 1998 and
negotiated the terms of the Tobacco Master Settlement Agreement,
the industry ponied up $206 billion, almost $322 billion in today's
dollars. When -- not if -- Big Pharma arrives at the same point in
the not-too-distant future, drugmakers likely will be on the hook
for far more than that. [GN]
MERRILL LYNCH: Badlwin Suit Removed to Maine Dist. Ct.
------------------------------------------------------
The case captioned Thomas Baldwin, individually and on behalf of
similarly situated individuals, Plaintiff, v. Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Defendant, Case No.
CV-2018-544 was removed from the the Superior Court, County of
Cumberland, State of Maine, to the United States District Court for
the District of Maine on January 11, 2019, and assigned Case No.
2:19-cv-00026-JDL.
Merrill Lynch serves as program manager and national distributor of
the State of Maine Section 529 College Savings Program. The Maine
529 Program, like other educational savings plans, offers a limited
menu of available investments. An investor placing funds in the
Maine 529 Program necessarily chooses one or more of those
investments. With the exception of a bank deposit option and a
fixed annuity option, all of the available investments in the Maine
529 Program are "covered securities".
Plaintiff alleges that he opened a Maine 529 Program account in
September of 2013, and that he enrolled in the account through
Merrill Lynch's website. In opening his account, Plaintiff
purchased interests in four portfolios comprised of over 97% mutual
funds and exchange-traded funds ("ETFs"). Plaintiff further alleges
that he would not have opened his account, and therefore would not
have purchased the same portfolio of covered securities if Merrill
Lynch had not made alleged misrepresentations about the potential
tax benefits of the Maine 529 Program.
Specifically, Plaintiff alleges that, in various places on Merrill
Lynch's website, Merrill Lynch "suggest[ed] and advertis[ed] that
the Maine 529 Program would confer the same tax benefits on New
York state income tax payers as the New York 529 Program," which
was not in fact the case. Plaintiff alleges that "Merrill Lynch
misleadingly and deceptively markets its Maine 529 Program as
providing the same benefits to New York State income tax payers as
those enrolled in the New York 529 Program", says the complaint.
Plaintiff is a resident of New York state.
Defendant Merrill Lynch is a Delaware corporation, headquartered in
New York, New York. Merrill Lynch is a broker-dealer registered
with the Financial Industry Regularity Authority.[BN]
The Defendant is represented by:
Jeff Goldman, Esq.
MORGAN, LEWIS & BOCKIUS, LLP
One Federal Street
Boston, MA 02110-1726
Phone: 617-341-7700
Fax: 617-341-7701
Email: jeff.goldman@morganlewis.com
MJM STRUCTURAL: Vazquez Seeks Overtime Pay under FLSA
-----------------------------------------------------
SALOMON OPORTA VAZQUEZ, and all others similarly situated, the
Plaintiff, vs. MJM STRUCTURAL CORP., a Florida Corporation, and
HENRY LEW, individually, the Defendants, Case No.:
1:19-cv-20034-RNS (S.D. Fla., Jan. 3, 2019), seeks to recover
monetary damages, liquidated damages, interests, costs and
attorney's fees for Defendants' willful violations of overtime
wages under the laws of the United States, the Fair Labor Standards
Act.
According to the complaint, the Plaintiff was not paid overtime
wages when he worked more than 40 hours per week. The Plaintiff
claims the halftime rate for each hour worked over 40 hours weekly.
The Plaintiff was paid a rate of $30.00 per hour from the on or
about December 22, 2015 through on or about July 24, 2018. The
Plaintiff was paid a rate of $31.65 per hour from on or about July
25, 2018 through November 6, 2018. The Plaintiff was paid a rate of
$34.43 per hour from on or about November 7, 2018 through December
22, 2018.
The Defendants knew and/or showed reckless disregard of the
provisions of the FLSA concerning the payment of overtime wages as
required by the Fair Labor Standards Act. The Defendants were aware
of Plaintiff's work schedule and further aware that Plaintiff was
working more than 40 hours per week. The Defendants maintained time
records which reflected that Plaintiff worked more than 40 hours
per week. The Defendants were aware of Plaintiff’s pay records
and the rate that he was being paid for his hours. The Defendants
were aware of their obligation to pay overtime and/or failed to
conduct a reasonable investigation as to whether they were
obligated to pay overtime wages. Despite the obligation to pay
overtime and that Plaintiff was working overtime, Defendants
continued to fail to pay overtime wages, the lawsuit says.
MJM Structural Corp. has been in business since 1984. Th company's
main lines of business include: concrete contractors-reinforced
concrete, foundation contractors-concrete and Block, concrete
Contractors-tilt-up construction Servicing Florida-South-West Palm
Beach, Miami.[BN]
Counsel for Plaintiff:
Isaac Mamane, Esq.
MAMANE LAW LLC
10800 Biscayne Blvd., Suite 350A
Miami, FL 33161
Telephone (305) 773 6661
E-mail: mamane@gmail.com
- and -
Daniel T. Feld, Esq.
DANIEL T. FELD, P.A.
2847 Hollywood Blvd.
Hollywood, FL 33020
Telephone: (954) 361-8383
E-mail: DanielFeld.Esq@gmail.com
MONSANTO COMPANY: Rickard Sues over Sale of Herbicide Roundup
-------------------------------------------------------------
BRIAN RICKARD, the Plaintiff, v. MONSANTO COMPANY, the Defendant,
Case No. 3:18-cv-07759-VC(E.D. Ark., Dec. 13, 2018), seeks to
recover damages suffered by Plaintiff, as a direct and proximate
result of the Defendant's negligent and wrongful conduct in
connection with the design, development, manufacture, testing,
packaging, promoting, marketing, advertising, distribution,
labeling, and/or sale of the herbicide Roundup (TM), containing the
active ingredient glyphosate.
The Plaintiff maintains that Roundup (TM) and/or glyphosate is
defective, dangerous to human health, unfit and unsuitable to be
marketed and sold in commerce, and lacked proper warnings and
directions as to the dangers associated with its use. The
Plaintiff' injuries, like those striking thousands of similarly
situated victims across the country, were avoidable.
The Plaintiff brings this action for personal injuries sustained by
exposure to Roundup (TM), which contains the active ingredient
glyphosate and the surfactant polyethoxylated tallow amine (POEA).
As a direct and proximate result of being exposed to Roundup, the
Plaintiff developed diffuse Non-Hodgkin's Lymphoma.
Roundup refers to all formulations of Defendant's Roundup products,
including, but not limited to, Roundup Concentrate Poison Ivy and
Tough Brush Killer 1, Roundup Custom Herbicide, Roundup D-Pak
Herbicide, Roundup Dry Concentrate, Roundup Export Herbicide,
Roundup Fence & Hard Edger 1, Roundup Garden Foam Weed & Grass
Killer, Roundup Grass and Weed Killer, Roundup Herbicide, Roundup
Original 2k Herbicide, Roundup Original II Herbicide, Roundup Pro
Concentrate, Roundup Pro Dry Herbicide, and Roundup Promax.[BN]
The Plaintiff is represented by:
Laura Fellows, Esq.
PAUL LLP
601 Walnut Street, Suite 300
Kansas City, MO 64106
Telephone: 816-984-8100
E-mail: Laura@PaulLLP.com
MUCKAMORE ABBEY: Class Action Mulled Over Patient Abuses
--------------------------------------------------------
Seanín Graham, writing for The Irish News, reports that a human
rights lawyer who is taking a class action on behalf of families
whose loved ones have been abused in Muckamore Abbey Hospital has
said they are demanding "answers and accountability".
In her first interview about the legal challenge, solicitor Claire
McKeegan confirmed that several families have contacted her about
pursuing a civil case against the Belfast health trust, which is
responsible for the Co Antrim facility.
She said she hopes to get "every shred of documentation" from the
trust in relation to the "systemic" abuse of its vulnerable
patients -- including ward CCTV footage and medical notes --
through a legal process in which the NHS body will be obliged to
forward relevant material.
"In terms of first steps we will be writing to the trust to set out
the failings and ask for an immediate remedy in terms of
compensation and admissions of liability for negligence and breach
of statutory duty," she said.
"In lay man's language, their loved ones have been harmed and they
deserve to receive some form of justice and truth recovery."
The hospital is at the centre of the biggest adult safeguarding
investigation of its kind in Northern Ireland, with the National
Crime Agency now assisting police in the probe into physical and
mental abuse of patients with severe learning disabilities.
Ms McKeegan of Phoenix Law, who also represents historical abuse
victims as well as those abused by a Co Down paedophile priest,
said the Muckamore case was unique due to the existence of the CCTV
footage which shows hospital staff assaulting patients between
March and September 2017.
Staff did not realise the cameras were recording.
The Irish News first revealed the scandal in July and the
unprecedented number of nursing suspensions.
An independent report has concluded that patients' lives were put
at risk.
A total of 15 staff, mainly nurses, have been suspended.
The Belfast lawyer said families are keen to get to "the truth"
after some were forced to make requests under Freedom of
Information legislation to find out what happened to their
relatives.
"I met with a family and I have been approached by several families
in past few days who are keen to pursue a class action, who are
demanding answers and accountability," she said.
"It's clear their loved ones have been let down, that they've been
harmed in a place where they should be cared for - in a hospital."
Earlier The Irish News revealed concerns that information had been
initially "suppressed" by the trust in relation to the scale of the
abuse, after leaked notes showed the Department of Health only
became aware following a tip-off from a politician.
Ms McKeegan said that through her legal challenge she hopes to
discover "who knew what and when".
"No doubt a blame game will occur now. But with a civil case and
through the process of 'discovery', the trust will be forced to
give us give every single shred of documentation which shows what
their defence is -- so for instance all of that CCTV footage would
have to be provided under discovery if it still exists, which we
know it does.
"Medical notes and records, any disciplinary meetings that have
ever taken place and any complaints that are relevant will also
have to be forwarded."
The solicitor backed mounting calls for a public inquiry and urged
other families affected to contact her.
"Clearly the issues of abuse at Muckamore were systemic and relate
to the failings of more than one organisation. The only way to have
a thorough examination and look at all of the failings would be
under the remit of a public inquiry which has the powers to get to
the truth through full disclosure and compelling witnesses." [GN]
NASHVILLE COUNTY, TN: McKibbens' Racial Discrimination Claim Junked
-------------------------------------------------------------------
The United States District Court for the Middle District of
Tennessee, Nashville Division,, issued a Memorandum Opinion
granting in part and denying in part Plaintiffs' Motion for Summary
Judgment in the case captioned DARRYL L. McKIBBENS, Plaintiff, v.
METROPOLITIAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
Defendant. No. 3:17-cv-01110. (M.D. Tenn.).
Plaintiff Darryl McKibbens filed this action against his employer,
Metropolitan Government of Nashville and Davidson County, alleging
discrimination based on his race, as well as retaliation, in
violation of Title VII of the Civil Rights Act of 1964 (Title VII)
and the Tennessee Human Rights Act (THRA).
The Court will grant the Defendant's motion with respect to
Plaintiff's Title VII racial discrimination claim and THRA claims.
The Court will deny the Defendant's motion with respect to
Plaintiff's Title VII retaliation claim.
As it is undisputed that all employees promoted to Water
Maintenance Leader 2 during the same time frame as the Plaintiff
(eight African Americans, including Plaintiff, and six Caucasians)
were promoted on the same day, regardless of race, when the
Defendant removed a hiring freeze. The existence of an individual,
from a non-protected class and of similar qualifications, that
received the promotion instead of the Plaintiff is a necessary
element of the Plaintiff's failure to promote claim. Therefore, the
Plaintiff's delayed promotion to Water Maintenance Leader 2 does
not create a prima facie case of discrimination, as the Plaintiff
has not identified any evidence to support the fourth element of
his claim.
The only evidence the Plaintiff offers regarding Mr. Cobb's
qualifications is that he had less seniority than the Plaintiff.
Thus, this evidence alone is insufficient to show the Plaintiff and
Mr. Cobb were similarly qualified individuals. Accordingly, the
Plaintiff has not presented sufficient evidence of Mr. Cobb's
experience to permit a threshold weighing of his qualifications
against the Plaintiff's. Therefore, the Plaintiff has not met his
summary judgment burden as to the fourth element of his failure to
promote to Water Maintenance Supervisor claim.
In sum, because a reasonable jury could not conclude on the current
record that the Plaintiff offered sufficient evidence as to the
fourth element of his failure to promote claims, the delay in these
promotions cannot be used to support the Plaintiff's prima facie
case of race discrimination.
A full-text copy of the District Court's December 20, 2018
Memorandum Opinion is available at https://tinyurl.com/y85rjjro
from Leagle.com.
Darryl L. McKibbens, Plaintiff, represented by Martin D. Holmes --
mdholmes@dickinsonwright.com -- Dickinson Wright PLLC.
Metropolitan Government of Nashville and Davidson County,
Tennessee, Defendant, represented by J. Brooks Fox, Metropolitan
Legal Department.
NEW JERSEY: Sued for Violating Rights of Psychiatric Patients
-------------------------------------------------------------
Kim Mulford, writing for Cherry Hill Courier-Post, reports that New
Jersey is violating the civil rights of psychiatric patients on a
large scale, according to a federal lawsuit filed on behalf of four
patients at Greystone Park Psychiatric Hospital.
Instead of addressing conditions at the Morris County hospital, the
60-page class-action suit claims, government officials created "an
atmosphere of terror and retaliation" to intimidate doctors and
staff who dared to speak out.
The lawsuit details horrific assaults: bloodied and gouged doctors,
nurses who had clumps of hair torn from their scalps, and patients
left permanently injured while staff stood by "helplessly."
Designed to utilize at least 29 psychiatrists to treat 510
patients, the hospital now has only six psychiatrists on staff to
manage 441 patients -- and more psychiatrists are expected to leave
by the end of the year, according to the lawsuit filed on Dec. 17
by the state Office of the Public Defender.
The staffing shortage "drastically increased caseloads and …
dramatically decreased the opportunity for patients to receive
appropriate psychiatric care," according to the suit.
The hospital recently was re-accredited by the Joint Commission,
but still faces "chronic administrative failures" that have
resulted in a "drastic increase in assaults, suicide attempts, drug
overdoses and fatal medication mismanagement," according to the
lawsuit.
As violence increased, government officials kept multiple sets of
books to cover up the true number of assaults and injuries at the
hospital, the suit alleges. Doctors and staff feared reporting many
incidents and worried they might lose their jobs, it claims.
"Multiple whistleblowers have lost their careers and reputations
when they attempted to disclose or refused to unlawfully manipulate
this information against the direct orders of defendants," the
lawsuit claims.
The defendants also "purposely delayed" hiring additional
psychiatrists to save money, though the hospital faced dire
staffing shortages, the suit says.
Virtually every Greystone doctor has been assaulted, according to
the suit, including one who was left covered in blood and
unconscious on the floor while waiting for an ambulance in
February. The hospital's medical director, Evaristo O. Akerele, who
routinely ignored calls for assistance, also refused to check on
his injured colleague, claiming he was "too busy," it says.
"Patients live in a constant state of fear, knowing that staff
cannot protect them," the suit claims, and report they can't sleep
at night due to an increase of patient-on-patient assaults when
fewer staffers are on duty.
The defendants named in the suit are Akerele; Gov. Phil Murphy;
Attorney General Gurbir Grewal; state Health Commissioner Dr.
Shereef Elnahal; state Department of Human Services Commissioner
Carole Johnson; Valerie Mielke, who leads the state Division of
Mental Health and Addiction Services; Dr. Robert Eilers, the
division's medical director; Greystone CEO Tomika Carter; and
former officials from Gov. Chris Christie's administration.
In August, the state Department of Health released the executive
summary of an outside evaluation of its psychiatric hospitals.
Elnahal also announced an 18-month reform plan, new hires and
spending already underway.
Reforms at Greystone included a 20 percent reduction in the number
of patients, four new administrators, about 40 additional staff, as
well as new efforts to prevent and calm potentially violent
incidents, according to the state.
On Dec. 7, the department announced Greystone and Ann Klein
Forensic Center in Trenton were fully accredited after on-site
visits by the Joint Commission, an independent nonprofit that
accredits health organizations. The visits uncovered minor issues,
"such as replacement of a stained ceiling tile and fixing a gap
near a ceiling sprinkler in a laundry room," according to the
department's news release.
On Dec. 19, the department responded to the lawsuit, stating the
"vast majority of grievances cited" occurred in prior
administrations.
"Conditions cited in the lawsuit do not account for major changes
undertaken at Greystone since the administration's announcement of
an 18-month improvement plan for the hospitals," the department
said in a released statement. "The administration has committed
unprecedented attention and resources to improving conditions at
the hospitals and will continue to do so, per the improvement plan
unveiled this past summer."
The department also stated on Dec. 19 no assault data from the
current year was included in the suit, though the filing details
several violent episodes through September.
"From approximately January 2018 through August of 2018, about 105
employees were assaulted by patients and injured significantly
enough to necessitate a report to Greystone's human resources. Of
those 105 staff members who filed with human resources, at least
one-quarter required multiple days off because of their injuries,"
the suit read.
The department on Dec. 19 said there's been a 14.3 percent decrease
in assaults between the first nine months of 2017 and the same
period for 2018. [GN]
NIKE: Gender, Pay Discrimination Class Action Ongoing
-----------------------------------------------------
Ted Sickinger, writing for The Oregonian/OregonLive, reports that
Oregon's far-reaching new pay equity law kicks in 10 days from now,
opening the door to a raft of pay increases for employees or a
clutch of complaints -- and potential lawsuits -- against
employers.
For employers, that's not an empty threat. Statistics indicate that
pay inequity is systemic, with Oregon women still earning 79 cents
for every dollar a man earns. One of the state's largest employers,
Nike, recently became the focus of a class-action lawsuit, filed by
four women alleging unequal compensation and promotional
opportunities.
Many small businesses, meanwhile, have no structured compensation
system and may not even be aware of the new legislation, much less
that it vastly expands the scope of existing law and who can sue.
Even the state, which has been analyzing its own salaries, has
identified disparities in as much as 10 percent of the positions
surveyed. Whether that figure can be extrapolated to public and
private employers around the state is an open question. But
Gov. Kate Brown, at least, has aside $15 million in her proposed
2019-2021 budget for pay raises related to implementation of the
law.
Business groups are no longer pushing back on the law per se. But
they are loudly complaining the Bureau of Labor and Industries
hasn't given them enough time to absorb the law and ensure
compliance. Though the legislation was approved in early 2017, BOLI
published the rules two days before Thanksgiving.
"There's a lot of worry about what this is going to look like on
January 1," said Anthony Smith, Oregon director for the National
Federation of Independent Business. "There's a difference between
being aware of the law and being prepared for it."
Judging by a hearing of the Senate Workforce Committee, where
lawmakers rebuked labor regulators for tardy rulemaking and lack of
outreach to employers, there is some sympathy for that position.
"The execution on this bill did not go the way I hoped it would,"
Sen. Kathleen Taylor, D-Portland and committee chair, told the
agency staffers. "This has left a lot of people rather frustrated.
Unfortunately, I didn't hear any justifiable reason why it didn't
happen earlier."
The outgoing labor commissioner, Brad Avakian, didn't attend the
hearing and sent three relatively inexperienced employees to
explain the agency's actions. His successor says she'll be taking a
different tack.
Val Hoyle, a former Democratic state representative from Eugene,
will be sworn in Jan. 7. Hoyle says BOLI will focus on education
and outreach for the first six months of her tenure, rather than
investigation and enforcement. She said the agency doesn't have
adequate resources for technical assistance to employers and that
she will be asking the Legislature for more.
"I am not the commissioner yet," she said, "but it is my intention
to focus on outreach and education, specifically to small
businesses and businesses off the I-5 corridor . . . rather than
bringing the hammer down."
BOLI does have discretion on whether to investigate claims filed
with the agency. But employees can also take their complaints to
circuit court as of Jan. 2, and some human resources managers worry
that plaintiff's attorneys are waiting to do exactly that.
Consequently, business groups are asking the Legislature for a six-
to 12-month delay in implementing employees' rights to legal action
under the law.
"It's not a question of the goal. It's making sure people are
adequately prepared to achieve the goal in the best possible way,"
said Sandra McDonough, chief executive of Oregon Business &
Industry, the state's largest business organization. "It's a huge
rule. It came out really late with hardly any time to prepare
before the effective date. We'd like to see some more time for
implementation."
NEW TERRITORY
The Oregon Equal Pay Act of 2017 dramatically expands protections
against pay inequity. The guts of the bill are that employers can't
discriminate by paying some staffers lower wages for work of
"comparable character." That's defined as work requiring
"substantially similar knowledge, skill, effort, responsibility,
and working conditions in the performance of work," regardless of
job description or title. Pay, it should be noted, includes
benefits.
Moreover, the law added 10 protected classes beyond gender,
including race, color, religion, sex, sexual orientation, national
origin, marital status, veteran status, disability and age.
It also broadened the definition of compensation to include
bonuses, stock awards and other forms of payment. And it prohibits
employers from asking job applicants about their salary history.
BOLI could order violators to pay as much as two years' back pay.
If a worker opts to go through the court system, punitive damages
would also be on the table.
Laura Salerno Owens, an employment lawyer at Markowitz Herbold in
Portland, said the legislation is among the most expansive in the
country. She also says it's clunky enough that even the
best-intentioned employers may have difficulty complying. It asks
employers to analyze for possible discrimination, for example,
based on factors they're not supposed to be tracking in the first
place, she said.
Another potential pitfall from employers' perspective: The
definition of pay is so broad that it could hinder an employer's
ability to attract new talent without putting itself in violation
of the law. Say a company paid a signing bonus to a new recruit for
compensation they were leaving on the table at their old job. That
would require them to raise all comparable existing employees' pay
to match.
The legislation does allow employers to make exceptions for
different pay levels if the difference is based on a "bona fide
factor," such as a seniority or merit system, education, training,
experience, workplace locations, or a handful of other factors
cited in the legislation.
The law also offers employers a "safe harbor" provision, extending
some protection from compensatory or punitive damages in lawsuits
if they have completed a pay equity analysis within three years of
a complaint.
Sen. Tim Knopp, who co-sponsored the law with Taylor, says the pay
analysis may be the most important lever in the legislation.
"I really believe it's the equal pay analysis that was Chair
Taylor's idea that will lead to equalization of pay," the Bend
Republican said. "It's not mandatory, but I think it's very prudent
for business to do. A lot of businesses think they don't have a
problem, and I think it's critically important for them to verify
that…before they face any punitive action."
Christine Thelen, a Portland employment lawyer with Lane Powell,
said the problem is that the Bureau of Labor and Industries has
declined to provide comprehensive guidance on what a pay equity
analysis should look like, how exhaustive it should be or how much
it should cost.
"It doesn't help if you don't know exactly what you have to do to
get this safe harbor, and we won't know until these things get
challenged what some of those parameters are going to look like,"
she said "Just doing the audit isn't enough. You need to take steps
to redress the pay differential for the individual suing and have
made substantial progress addressing it for everyone else in the
same protected class."
Nevertheless, a variety of large businesses contacted by The
Oregonian/OregonLive said they did their homework and are confident
they will be in compliance.
Melanie Erdmann, a spokeswoman for Portland General Electric, said
the utility completed its pay equity analysis in May. It wasn't an
especially heavy lift, as it's something the company already does
regularly, she said. Still, PGE did take the extra step of bringing
in an outside consultant in 2018 to beef up the analysis.
"We were pleased with the outcome," she said. "The results showed
that employees in the same role, with comparable work experience in
the same location, on average earn a near-perfect dollar-for-dollar
pay."
Nike, which is facing a class-action suit alleging pay and gender
bias, said it wouldn't comment on the litigation. But
Greg Rossiter, a company spokesman, said "pay equity is a critical
component of our diversity and inclusion strategy. We believe that
women, men and all races/ethnicities who undertake the same work at
the same level, experience and performance should be equitably
compensated."
According to the company's 2017 analysis, for every $1 earned by
men, women globally earned 99.9 cents, and for every $1 earned by
white employees in the U.S., people of color earned $1.
"We are monitoring this data, doing supplemental focused analysis,
and adjusting where appropriate, driving with 1:1 as our goal for
both groups, every year," Mr. Rossiter said.
Large corporations, with internal human resources, legal counsel
and the wherewithal to bring in outside help, may indeed be
well-positioned to comply with the law. But it's a tougher climb
for small businesses, which employ the majority of Oregon's
workforce.
Mr. Smith, of the National Federation of Independent Businesses,
said his organization has about 7,000 members in Oregon. About 90
percent have fewer than 25 employees and 70 percent have less than
10 employees.
Ms. Thelen, the lawyer, says the smaller the company, the less
likely it is to have jobs that are of comparable character. The
flipside, she said, is that the smaller you are, the less likely
you are to have a structured compensation approach thought out by a
human resources professional. Maybe they look on Craigslist for
comparable jobs or ask prospective workers what they're earning and
tack on a few percent.
"You can't take that approach," she said. "You have to approach it
in a far more structured way under this law."
EMPLOYEES GAIN
The hope for workers, legislators and employee advocates say, is
that the Equal Pay Act will force businesses to address
institutionalized inequity, and adopt performance measures, pay and
promotion policies that are less amorphous and subjective.
Sen. Knopp noted that federal equal pay laws have been on the books
since the 1960s and that Oregon statutes date to the '70s, but that
the issues remain.
"I think it's going to be a significant topic of conversation over
the next couple years, and as it goes into effect employees will
start to make inquiries," he said. "Women weren't necessarily aware
of what their male colleagues were making that had similar
experience, and as people become more aware, it will lead to some
soul-searching discussions among businesses about what is fair and
what is equal."
From a practical standpoint, the Equal Pay Act prohibits employers
from cutting anyone's pay in order to comply, but it does allow
them to freeze an employee's compensation while increasing others
to bring them into alignment.
It also specifies that an employer cannot retaliate against an
employee who files a complaint under the Equal Pay Act, or an
employee who participates or who the employer thinks will
participate in an investigation.
"We'll see what this law does," said Salerno Owens. She is handling
the Nike class-action suit and says pay discrimination is an
undeniable fact in this country, supported by statistics about who
is coming out of graduate school, versus who ends up in the
executive suite and garnering the biggest portion of the salary
bonus pool a couple decades later.
She points to figures in the Nike lawsuit attributed to the
company: During its 2017 fiscal year, 71 percent of the company's
vice presidents were men and 62 percent of directors and senior
directors were men. Men make up significantly more than 62 percent
of senior directors, the suit said.
"Perhaps things will become a little more transparent," she said,
"and people will be allowed to move up without being judged by who
I want to go golfing with." [GN]
NISSAN SHAPIRO: $200 Legal Fee Without Basis, Poltorak Says
-----------------------------------------------------------
ELIE POLTORAK on behalf of himself and all other similarly situated
consumers, the Plaintiff, vs. NISSAN SHAPIRO LAW P.C., the
Defendant, Case No. 1:18-cv-07386-WFK-JO (E.D.N.Y., Dec. 27, 2018),
seeks redress for illegal practices of Nissan Shapiro Law P.C.
concerning collection of debts in violation of the Fair Debt
Collection Practices Act.
The Plaintiff is a tenant who resides at 580 Crown Street, Apt. 701
Brooklyn, New York 11213. There is no written and executed lease
between the Plaintiff and the Landlord who goes by the name "Yuda
Silverstein". On or about October 10, 2018, the Defendant sent the
Plaintiff a "Three-Day-Notice" threatening eviction in the event of
non-payment. The Three-Day-Notice demanded: "Legal Fees: $200.00."
The Defendant's demand for legal fees without basis violates the
FDCPA.
The Plaintiff suffered injury in fact by being subjected to unfair
and abusive practices of the Defendant. The Plaintiff suffered
actual harm by being the target of the Defendant's misleading debt
collection communications. The Defendant violated the Plaintiff's
right not to be the target of misleading debt collection
communications. The Defendant violated the Plaintiff's right to a
truthful and fair debt collection process. Defendant used
materially false, deceptive, misleading representations and means
in its attempted collection of Plaintiff's alleged debt, the
lawsuit says.
Shapiro Law Office concentrates its practice in the field of
creditors' rights; collection and litigation of defaulted consumer
and business indebtedness.[BN]
Attorneys for Plaintiff:
Eugene M. Lynch, Esq.
LAW OFFICE OF EUGENE M. LYNCH
338 Atlantic Avenue
Brooklyn, NY 11201
Telephone: (212) 354-5555
NOBILIS HEALTH: Feb. 12 Lead Plaintiff Motion Deadline Set
----------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on Dec. 19 disclosed that
a federal securities class action lawsuit has been filed in the
United States District Court for the Southern District of Texas on
behalf of investors that purchased Nobilis Health Corp. ("Nobilis"
or the "Company") (NYSE American: HLTH) securities between May 8,
2018 and November 15, 2018, inclusive (the "Class Period").
Investors who have incurred losses in the shares of Nobilis Health
Corp. are urged to contact the firm immediately at
classmember@whafh.com or (800) 575-0735 or (212) 545-4774. You may
obtain additional information concerning the action on our website,
www.whafh.com.
If you have incurred losses in the shares of you may, no later than
February 12, 2019, request that the Court appoint you lead
plaintiff of the proposed class. Please contact Wolf Haldenstein to
learn more about your rights as an investor in Nobilis Health Corp.
On November 9, 2018, Nobilis announced that it was "re-evaluating
the Net Realizable Value on its Accounts Receivable and intends to
make a significant adjustment to the carrying value of accounts
receivable, primarily on out of network claims greater than 365
days old." The Company filed for additional time to file its 10-Q
for the period ended September 30, 2018 while the Company and the
auditor completed their review of the financial statements.
On this news, Nobilis's share price fell $0.18 per share, or over
25%, to close at $0.52 per share on November 12, 2018, on unusually
heavy trading volume.
Wolf Haldenstein Adler Freeman & Herz LLP has extensive experience
in the prosecution of securities class actions and derivative
litigation in state and federal trial and appellate courts across
the country. The firm has attorneys in various practice areas; and
offices in New York, Chicago and San Diego. The reputation and
expertise of this firm in shareholder and other class litigation
has been repeatedly recognized by the courts, which have appointed
it to major positions in complex securities multi-district and
consolidated litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at
classmember@whafh.com, or visit our website at www.whafh.com. [GN]
NONGSHIM CO: Obtains Favorable Ruling in Antitrust Class Action
---------------------------------------------------------------
John Council, writing for The Recorder, reports that after a
five-week trial, a federal jury in San Francisco issued a defense
verdict in a $500 million antitrust class action filed against two
South Korean companies accused of conspiring to fix the price of
ramen noodles.
Food retailers and distributors in 23 states sued Nongshim Co. and
Ottogi Corp. in an antitrust case alleging that South Korea's two
leading ramen producers conspired for more than a decade to fix,
raise, maintain or stabilize the price of Korean noodles sold in
the U.S.
The plaintiffs in 2013 decided to sue the companies in the U.S.
following a 2008 investigation by the Korean Fair Trade Commission
(KFTC), which found that Nongshim and its competitors had raised
ramen prices in the Korean market without first getting approval
from the Korean government. The KFTC later issued an order fining
Nongshim and its competitors $100 million each, but the order was
later reversed by the Korean Supreme Court in 2015.
The U.S. plaintiffs' action was tried before U.S. District Judge
William Orrick of the Northern District of California. After three
hours of deliberation, the jury found that the plaintiffs did not
prove the companies conspired to fix U.S. prices.
Mark Dosker -- mark.dosker@squirepb.com -- a partner in the San
Francisco office of Squire Patton Boggs who defended Nongshim at
trial, said the case was unusual.
"It is quite rare for antitrust class action cases to go to verdict
in the U.S., and we are delighted with the jury's conclusion," Mr.
Dosker said.
Scott Edelman -- sedelman@gibsondunn.com -- a partner in Gibson,
Dunn & Crutcher who defended Ottogi at trial, was also pleased with
the decision.
"We are thrilled for our client. It was a decisive vindication for
them. The jury spent over five week deliberating over evidence,''
Edelman said. "I just think that the evidence and the experts the
plaintiffs put forward were not convincing.''
Alan Plutzik -- APlutzik@bramsonplutzik.com -- a partner in Walnut
Creek's Bramson Plutzik Mahler & Birkhaeuser who represented the
plaintiffs at trial, did not return a call for comment. [GN]
NVIDIA CORP: Feb. 19 Lead Plaintiff Motion Deadline Set
-------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Dec. 24
announced the filing of a class action lawsuit on behalf of
purchasers of the securities of NVIDIA Corporation (NASDAQ:NVDA)
from August 10, 2017 through November 15, 2018, inclusive (the
"Class Period"). The lawsuit seeks to recover damages for NVIDIA
investors under the federal securities laws.
To join the NVIDIA class action, go to
https://www.rosenlegal.com/cases-1479.html or call Phillip Kim,
Esq. or Zachary Halper, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or zhalper@rosenlegal.com for information on
the class action.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements. Specifically, defendants:
(1) assured investors that NVIDIA followed the market closely and
could adjust to rapid changes in the cryptocurrency markets; (2)
touted that NVIDIA and its executives are "masters at managing our
channel, and we understand the channel very well."; and (3) assured
investors that surging demand for graphics processing units
("GPUs") among cryptocurrency miners would not have a negative
impact on NVIDIA because of strong demand for GPUs by NVIDIA's core
customer base of computer gamers. When the true details entered the
market, the lawsuit claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than February
19, 2019. A lead plaintiff is a representative party acting on
behalf of other class members in directing the litigation. If you
wish to join the litigation, go to
https://www.rosenlegal.com/cases-1479.html or to discuss your
rights or interests regarding this class action, please contact
Phillip Kim, Esq. or Zachary Halper, Esq. of Rosen Law Firm toll
free at 866-767-3653 or via e-mail at pkim@rosenlegal.com or
zhalper@rosenlegal.com.
Rosen Law Firm -- http://www.rosenlegal.com-- represents investors
throughout the globe, concentrating its practice in securities
class actions and shareholder derivative litigation. Rosen Law Firm
was Ranked No. 1 by ISS Securities Class Action Services for number
of securities class action settlements in 2017. The firm has been
ranked in the top 3 each year since 2013. [GN]
NVIDIA CORPORATION: Oto Sues over Misleading Financial Reports
--------------------------------------------------------------
MICHAEL OTO, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, vs. NVIDIA CORPORATION, JEN-HSUN HUANG,
and COLETTE M. KRESS, the Defendants, Case No. 5:18-cv-07783-LHK
(N.D. Cal., Dec. 28, 2018), seeks to recover damages caused by
Defendants' violations of the federal securities laws and to pursue
remedies under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, against NVIDIA and certain of its top officials.
The case is a federal securities class action on behalf of a class
consisting of all persons other than Defendants who purchased or
otherwise acquired NVIDIA securities between August 10, 2017
through November 15, 2018, both dates inclusive. NVIDIA is a
computer technology company founded in 1993 and is headquartered in
Santa Clara, California. NVIDIA designs and sells graphics
processing units ("GPUs") and software, traditionally in the
computer gaming market. NVIDIA's business has since expanded to
include GPUs used in connection with, inter alia, cryptocurrencies.
NVIDIA's business in cryptocurrency market, infamous for its growth
and volatility, became especially integral to investors.
The Defendants represented to investors that NVIDIA could
competently navigate the cryptocurrency market throughout the Class
Period. For example, Defendants assured investors that NVIDIA and
its executives are "masters at managing [the Company's] channel"
and "understand the channel very well," despite analysts'
increasing qualms regarding NVIDIA's inventory management in that
market. NVIDIA also consistently downplayed the Company's growing
reliance on cryptocurrency-related sales, representing to investors
that the cryptocurrency market made up little of NVIDIA's revenue.
The Defendants also touted the strong demand for its computer
gaming GPUs, assuring investors that NVIDIA's computer gaming
customer base would compensate for any decline in revenue from
cryptocurrency-related sales.
NVIDIA's shares began to trade at record highs as analysts digested
these repeated assurances to investors. Meanwhile, NVIDIA's senior
executives were concurrently selling their own shares in
significant amounts, including, inter alia, Jen-Hsun Huang
("Huang"), NVIDIA's Chief Executive Officer ("CEO"). Huang sold
110,000 personally-held NVIDIA shares during the Class Period,
profiting by over $18 million. The Defendants made materially false
and misleading statements regarding the NVIDIA's business,
operational and compliance policies. Specifically, Defendants made
false and/or misleading statements and/or failed to disclose that:
(i) NVIDIA's growth in its gaming GPU revenue was driven, as
repeatedly denied by Defendants, in significant part by the spiked
demand for those GPUs among cryptocurrency miners; (ii) NVIDIA did
not have, as Defendants asserted, visibility into its inventory
channel; (iii) NVIDIA was unable to
18 adapt to the volatility of cryptocurrency markets; (iv) as
cryptocurrency prices dropped, NVIDIA hid halting growth from
cryptocurrency miners by continuing to push mid-range GPUs into
channel; (v) this would foreseeably cause an oversupply of gaming
card inventory levels on the market and ultimately lead to over
three months of excess inventory in NVIDIA's channel; and (vi) as a
result, NVIDIA's public statements were materially false and
misleading at all relevant times.
On November 15, 2018, NVIDIA disclosed that its revenue would
decline by over 7% for the fourth fiscal quarter, sharply cutting
its revenue guidance. This was in marked contrast to the 17% growth
Defendants had previously led investors to expect. NVIDIA blamed
the poor financial results on lower demand from
cryptocurrency-related purchasers, which resulted in an
oversupplied inventory of midrange GPUs. This inventory of GPUs had
stored up in the channel before cryptocurrency-related demand for
NVIDIA's GPUs rapidly declined. On this news, NVIDIA shares
declined by $57.69, or 28.5% over the next two trading sessions. As
a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages, the lawsuit says.[BN]
Attorneys for Plaintiff:
Jennifer Pafiti, Esq.
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
Jonathan Lindenfeld, Esq.
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
468 North Camden Drive
Beverly Hills, CA 90210
Telephone: (818) 532-6499
E-mail: jpafiti@pomlaw.com
jalieberman@pomlaw.com
ahood@pomlaw.com
jlindenfeld@pomlaw.com
pdahlstrom@pomlaw.com
OGLETREE: Knepper Suit Asserts Gender Discrimination
----------------------------------------------------
Dawn Knepper, on behalf of herself and all others similarly
situated, Plaintiff, v. Ogletree, Deakins, Nash, Smoak & Stewart,
P.C., Defendant, Case No. 8:19-cv-00060-JVS-ADS (N.D. Cal., January
12, 2019) alleges violations of Title VII of the Civil Rights Act
of 1964, the Equal Pay Act of 1963, ("EPA"), and related California
statutes, seeking redress and programmatic change for female
non-equity shareholders who have worked or will work for Ogletree.
The Defendant is one of the largest defense-side labor and
employment law firms in the country, employing nearly 700 attorneys
in the United States. Ogletree defends employers against individual
and class action employment lawsuits, including discrimination
actions. Ogletree also advises employers on how to avoid
discrimination suits.
The complaint asserts that Ogletree's female shareholders face
discrimination in pay, promotions, and other unequal opportunities
in the terms and conditions of their employment. Male shareholders
are disproportionately over-represented at every level of the
Firm's management and leadership structure. The Firm, dominated by
male decision makers, also denies female shareholders the same
business development and training opportunities provided to their
male counterparts. Female shareholders are not selected for
business pitches at the same rate as similarly situated, and in
some cases less qualified, male attorneys. Through these practices
the Firm systematically overlooks, devalues, or undermines female
attorneys as business generators, which adversely impacts their pay
and promotion, says the complaint.
Plaintiff Dawn Knepper is a female attorney and non-equity
shareholder in Ogletree's Orange County office. Plaintiff Knepper
has been employed by Ogletree since approximately June 1, 2005.
Ogletree is a law firm with offices worldwide, including six
offices in California. Ogletree's California offices are located in
Los Angeles, Orange County, Sacramento, San Diego, San Francisco,
and Torrance. Ogletree employs over 100 attorneys in
California.[BN]
The Plaintiff is represented by:
David Sanford, Esq.
SANFORD HEISLER SHARP, LLP
1666 Connecticut Ave, NW, Suite 300
Washington, DC 20009
Phone: (202) 499-5200
Facsimile: (202) 499-5199
Email: dsanford@sanfordheisler.com
- and -
Jill Sanford, Esq.
Edward Chapin, Esq.
SANFORD HEISLER SHARP, LLP
655 W Broadway, Suite 1700
San Diego, CA 92101
Phone: (619) 577-4253
Facsimile: (619) 677-4250
Email: jsanford@sanfordheisler.com
echapin2@sanfordheisler.com
- and -
Jeremy Heisler, Esq.
Alexandra Harwin, Esq.
SANFORD HEISLER SHARP, LLP
1350 Avenue of the America, 31st Floor
New York, NY 10019
Phone: (646) 402-5650
Facsimile: (646) 402-5651
Email: jheisler@sanfordheisler.com
aharwin@sanfordheisler.com
ORION PROPERTY: Hjelle Suit Transferred to E.D. New York
--------------------------------------------------------
A case, Orion Property Group, LLC, individually and on behalf of
others similarly situated, the Plaintiff, vs. Mark Hjelle, the
Defendant, Case No. 2:17-cv-02738 (Filed Feb. 28, 2018), was
transferred from the U.S. District Court for the District of Kansas
to the U.S. District Court for the Eastern District of New York
(Central Islip) on Jan. 3, 2019. The Eastern District of New York
Court Clerk assigned Case No. 2:19-cv-00044-JS-GRB. The suit
alleges Racketeer Influenced and Corrupt Organizations Act
violation. The case is assigned to the Hon. Judge Joanna
Seybert.[BN]
Attorneys for Orion Property Group, LLC:
Barbara C. Frankland, Esq.
Larkin E. Walsh, Esq.
Rex A. Sharp, Esq.
Ryan C. Hudson, Esq.
Scott B. Goodger, Esq.
REX A. SHARP, PA
5301 W. 75th Street
Prairie Village, KS 66208
Telephone: (913) 901-0505
Facsimile: (913) 901-0419
E-mail: bfrankland@midwest-law.com
lwalsh@midwest-law.com
rsharp@midwest-law.com
rhudson@midwest-law.com
sgoodger@midwest-law.com
- and -
Brennan P. Fagan, Esq.
FAGAN EMERT & DAVIS LLC
Lawrence, KS 66044
730 New Hampshire, Suite 210
Telephone: (785) 331-0300
Facsimile: (785) 331-0303
E-mail: bfagan@fed-firm.com
- and -
Christopher C. Gold, Esq.
Paul J. Geller, Esq.
Rachel L. Jensen, Esq.
Stuart A. Davidson, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
Facsimile: (561) 750-3364
E-mail: cgold@rgrdlaw.com
pgeller@rgrdlaw.com
rachelj@rgrdlaw.com
sdavidson@rgrdlaw.com
- and -
William Skepnek, Esq.
Skepnek Law Firm, PA
1 Westwood Road
Lawrence, KS 66044
Telephone: (785) 856-3100
Facsimile: (785) 856-3099
E-mail: bskepnek@skepneklaw.com
Attorneys for Mark Hjelle:
Kelly H. Foos, Esq.
Paul A. Williams, Esq.
Robert J. McCully, Esq.
SHOOK, HARDY & BACON LLP - KC/GRAND
2555 Grand Boulevard
Kansas City, MO 64108-2613
Telephone: (816) 474-6550
E-mail: kfoos@shb.com
pwilliams@shb.com
rmccully@shb.com
PACIFIC GAS: Calif. Regulators Mull Breakup Amid Class Actions
--------------------------------------------------------------
United Press International reports that California regulators are
considering breaking up Pacific Gas & Electric Co. or turning it
into a public utility in wake of deadly disasters, including the
Camp Fire, in northern California.
On Dec. 21, the California Public Utilities Commission said it is
seeking as part of its mission to empower California through access
to safe and affordable utility services and infrastructure,
according to a news release about the16 million served in the
northern portion of the state.
That will include whether PG&E's board and executive management
should be replaced as an effort to determine the best path forward
for Northern Californians to receive safe energy service.
Possibilities also include reorganizing the corporate structure
with subsidiaries based on regional distinctions, splitting it into
gas and electric operations, removing PG&E as an exclusive utility
and changing it to a publicly owned utility.
We must be careful and practical, CPUC President Picker said. "This
process will be like repairing a jetliner while it's in flight.
Crashing a plane to make it safer isn't good for the passengers."
The next step is for the CPUC to obtain input on the various
possible approaches with opening comments due Jan. 30.
In addition, CPUC wants to develop methodology for utility requests
for wildfire cost recovery.
This is not a punitive exercise, Picker said. The keystone question
is would, compared to PG&E and PG&E Corp. as presently constituted,
any of the proposals provide Northern Californians with safer
natural gas and electric service at just and reasonable rates, said
CPUC President Michael Picker.
CPUC noted "serious safety problems with both its natural gas and
electric operations in recent years."
California regulators are investigating whether PG&E continued to
commit pipeline safety violations and falsified records eight years
after an explosion killed eight people in the San Francisco Bay
Area.
In 2015, the CPUC opened a proceeding to determine whether PG&E's
and PG&E Corp.'s organizational culture and governance prioritize
safety. The CPUC adopted the safety findings and recommendations of
its Safety and Enforcement Division contained in the Northstar
Report in November.
The utility also has been confronted with billions of dollars of
claims stemming from the 2017 deadly Northern California fires.
PG&E also is facing class-action suits that it sparked the Camp
Fire, which killed 86 people in November in Northern California.
The fire started on Nov. 8 in Butte County and became the most
deadly and destrucive in state history. The suits include victims
of the fire.
The utility could file for bankruptcy.
In a statement late on Dec. 21, the company that it needed to
re-earn the trust of its customers because state regulators have
serious concerns about the utility.
The company's board of directors and senior management team have
been actively exploring additional changes beyond the corrective
actions and new programs we've implemented at the operational
level, PG&E said. Our shared goal is to improve our culture and
practices that will more fully reinforce our commitment to safety,
integrity and risk reduction. [GN]
PALM BEACH COUNTY, FL: Injunction Denial in Friedenberg Affirmed
----------------------------------------------------------------
The United States Court of Appeals, Eleventh Circuit, issued an
Opinion affirming the District Court's judgment denying Plaintiffs'
Motion for Preliminary Injunction in the case captioned JOAN E.
FRIEDENBERG, on behalf of herself and a class of similarly situated
individuals, Plaintiff-Appellant, v. SCHOOL BOARD OF PALM BEACH
COUNTY, Defendant-Appellee. No. 17-12935. (11th Cir.).
Friedenberg sued the School Board in the United States District
Court for the Southern District of Florida, claiming that the
requirement of suspicionless drug testing of School District
employment applicants violated the Fourth Amendment. She sought
class action relief, describing the putative class as including all
job applicants for non-safety-sensitive positions with the Palm
Beach County School District. Friedenberg sought declaratory and
injunctive relief.
Friedenberg moved the district court for preliminary injunctive
relief, arguing, among other things, that she could establish a
substantial likelihood of success on the merits. After conducting a
hearing, the district court denied preliminary injunctive relief.
The district court then determined that the balance of interests
strongly favored the policy of suspicionless testing of substitute
teacher applicants. And though Friedenberg's privacy interests were
implicated in the testing regime, the district court concluded that
the urinalysis was a relatively noninvasive process and the testing
regime was not unduly intrusive. The court found that although the
efficacy of the scheme is not beyond question, the need asserted by
the School Board the protection of the children under a substitute
teacher's charge is compelling indeed.
The Fourth Amendment protects the right of the people to be secure
in their persons against unreasonable searches and seizures. The
Court holds that undeniably the school district's urinalysis drug
tests are searches that implicte the Fourth Amendment. The Court
considers whether the search is a reasonable one.
Once a plaintiff has shown that the government conducted a search
without individualized suspicion which the School Board concedes
the burden shifts to the government to establish that it has a
special need sufficient to warrant departure from the Fourth
Amendment's baseline requirement of individualized suspicion.
In two cases that arose outside the school context, the Court
identified still other versions of special needs, and made it
abundantly clear that adult government employees in some
safety-sensitive positions could be required to pass suspicionless
drug tests as a condition of their employment.
The first of these cases was Skinner v. Railway Labor Executives
Ass'n, 489 U.S. 602 (1989).
There, the Supreme Court concluded that the government had a
sufficiently compelling reason to test railroad employees who had
been involved in railroad accidents, because the Government's
interest in regulating the conduct of railroad employees to ensure
safety presented special needs beyond normal law enforcement that
may justify departures from the usual warrant and probable-cause
requirements.
Evidence had established that on-the-job intoxication was a
significant problem in the railroad industry, and that in about a
decade, there had been twenty-one significant accidents causing
deaths and injuries that had involved alcohol or drug use. The
delay imposed by a warrant requirement would frustrate detection of
misconduct because alcohol and certain other drugs would leave the
bloodstream before they could be detected. Skinner established the
basic proposition that the government had an important interest in
safety because the protection of life and property depended on
railroad employees working effectively.
On the same day Skinner was handed down, the Supreme Court also
upheld the suspicionless urine testing of two distinct groups of
safety-sensitive Customs Service employees: those applying for
positions directly involved in drug interdiction and those applying
for positions that would require carrying a firearm. Von Raab, 489
U.S. 664. Testing was performed after qualification for the
position but before beginning in either role. The testing regime,
the government urged, was about both prevention and deterrence. It
was meant to deter drug use among those eligible for promotion to
sensitive positions and to prevent the promotion of drug users to
those positions.
These dual needs presented a special need that may justify
departure from the ordinary warrant and probable-cause requirements
of the Fourth Amendment.
To determine whether the government has demonstrated a special need
justifying a departure from probable cause and warrant
requirements, we first evaluate the danger against which the
testing regime is intended to guard; that is, the danger posed by
drug-addicted teachers in the classroom.
The Court concludes that a special need is evident. The danger
posed by intoxicated teachers is significant and it is readily
apparent that the School Board has a compelling interest in
ensuring that teachers including substitutes are not habitual drug
users.
To state the obvious, our schools have a singular custodial and
tutelary responsibility for our nation's most precious resource our
children. Parents are compelled, under force of law, to place their
children in the care of the schools. Our teachers substitute or
otherwise are directly given the responsibility to ensure the
safety and protection of our children. Each family sending a child
into the care and custody of the schools is counting on these
teachers not only to educate them, but to keep them safe. It is to
them that the Court looks to safeguard the classroom and protect
our students. Like teachers, substitute teachers are on the front
lines. After all, students are at school all day long. Teachers
have close interaction with students as young as five and as old as
eighteen for the better part of every school day for many years of
their lives.
The probability of harm is significant because it is a function not
only of the relatively small chance of an intoxicated teacher in
the classroom but also of the much larger chance that an emergency
will occur. If a teacher who is responsible for the wellbeing and
safety of a classroom of students is intoxicated on the job, there
is a very realistic probability that a serious situation requiring
a swift and effective adult response would emerge. Thus, the Court
considers the gravity of the harm that could befall a child not to
mention that child's family if the theoretically responsible adult
fails to respond properly.
Friedenberg acknowledges the gravity of the risk, but she argues
that the risk is purely hypothetical and speculative. The Court
think she's wrong about the probabilities of harm, but, in any
event, profoundly mistaken when the Court also consider the gravity
of harm. The Court knows with a high degree of confidence that
serious problems will arise, that substitute teachers just like
permanent teachers are the first and primary line of protection for
minor students in the care of the public schools, and that an
intoxicated guardian may well be unable to respond properly and
promptly.
The danger that would be posed by drug-using individuals overseeing
our classrooms is, the Court think, concrete and substantial. The
government, therefore, has a significant safety-based interest in
regulating the conduct of teachers to ensure safety in the public
schools.
Teachers are not students, over whom the state acts in loco
parentis, but they are government employees. In Ortega, the Court
said that the governmental interest justifying work-related
intrusions on privacy by public employers is the efficient and
proper operation of the workplace. Ortega, 480 U.S. at 723. The
search in Ortega was less invasive than a drug test, but something
of the same principle carries over. The school is the teacher's
workplace, and the School Board's interest in testing relates
entirely to the efficient and proper operation of the workplace,
not to a detached interest in the circulation of controlled
substances.
Next the Court considers the nature and immediacy of the
governmental concern at issue here. The government's essential
interest in drug testing substitute teachers is to weed out
applicants who abuse drugs in order to better achieve the basic
safety and tutelary obligations of our schools.
Again, teachers, including substitutes, are the School District's
front line agents. They serve as the guardians of school students
throughout the school day. The drug testing regime functions
prophylactically to help ensure that substitute teachers will not
be impaired.
The safety of schoolchildren and the maintenance of an environment
in which education could take place are compelling government
interests. The Supreme Court's previous student drug-testing cases
confirm this. The unique concerns presented in public schools and
involving the custodial care of children should not disappear from
the analysis of special need simply because the drug testing is of
a school employee rather than a student. Again, the Court
determines that the government interests implicated today are
weighty. And the government's interests also present sufficient
immediacy.
The Court concludes that the School District has presented a
compelling need with sufficient immediacy.
Finally, the Court considers the efficacy of the School District's
testing regime. The mere fact that a drug test could conceivably be
beaten by abstaining from drugs for a significant enough period of
time does not necessarily render the test ineffective; Von Raab
squarely rejected that argument. The Court inquiry is only into
whether the testing regime is an effective means of deterring the
undesirable behavior it targets. The Court are not required to
determine whether the current testing regime is the most effective
possible means of keeping drug-using teachers out of the classroom.
The Supreme Court has rejected that idea too and it would be
strange indeed to fault an effective drug-testing regime in this
unique setting simply because the testing could be more frequent
and more intrusive.
The long and the short of it is that we are satisfied that the
testing regime adopted by the Palm Beach County School Board serves
a preventive and deterrent function. When we balance all the
interests as we are required to do, the School Board clearly has
carried the day. Friedenberg has a diminished privacy interest
owing to the unique Fourth Amendment context of the public schools.
Plainly, the School Board has made only a minimal intrusion on that
privacy interest. It has done so in the service of a serious and
compelling need. And the testing regime appears to us be reasonably
effective and altogether reasonable. Friedenberg has not
established a substantial likelihood of success on the merits. On
this preliminary record, and on these facts, we can discern no
abuse of discretion in the district court's denial of a preliminary
injunction.
A full-text copy of the Eleventh Circuit's December 20, 2018
Opinion is available at https://tinyurl.com/yc5dfotv from
Leagle.com.
Shawntoyia N. Bernard -- shawntoyia.bernard@palmbeachschools.org --
for Defendant-Appellee.
Jean Marie Middleton -- jean.middleton@palmbeachschools.org -- for
Defendant-Appellee.
James K. Green, for Plaintiff-Appellant.
Nancy Gbana Abudu, for Plaintiff-Appellant.
Adam Brett Wolf -- awolf@pwcklegal.com -- for Plaintiff-Appellant.
Lindsay Claire Harrison -- lharrison@jenner.com -- for
Plaintiff-Appellant.
Nancy Udell, for Plaintiff-Appellant.
Sean Fahey -- sfahey@hallrender.com -- for Defendant-Appellee.
PATENAUDE & FELIX: Schultz Appeals W.D. Pa. Ruling to 3rd Circuit
-----------------------------------------------------------------
Plaintiff Karen Schultz filed an appeal from a court ruling in her
lawsuit titled Karen Schultz v. Patenaude & Felix, et al., Case No.
2-18-cv-00489, in the U.S. District Court for the Western District
of Pennsylvania.
As reported in the Class Action Reporter on Dec. 13, 2018, Judge
Marilyn J. Horan (i) granted both Defendant Patenaude & Felix,
A.P.C.'s Motion to Dismiss and Defendant Cach, LLC's Motion to
Dismiss; and (ii) denied as moot both Defendant Patenaude's Motion
to Strike and Defendant Patenaude & Felix, A.P.C.'s Motion to
Strike.
Ms. Schultz, on behalf of herself and a purported class, filed suit
against Patenaude under the Fair Debt Collection Practices Act
("FDCPA") in the Court of Common Pleas of Allegheny County,
Pennsylvania. Patenaude timely removed the matter to the District
Court based on federal question jurisdiction. Following the
Initial Case Management Conference, the Plaintiff filed an Amended
Class Action Complaint withdrawing two claims and adding Cach, LLC
as an additional Defendant.
According to the Complaint, the Plaintiff allegedly defaulted on a
credit card account issued by Synchrony Bank. Defendant Cach
purchased that account and then assigned the account to Defendant
Patenaude for the purpose of initiating collection efforts. The
Plaintiff alleges both the Defendants are "debt collectors" within
the meaning of definition provided by -- and therefore subject to
the regulations within -- the FDCPA. The Plaintiff also asserts
that Defendant Cach is liable for Defendant Patenaude's actions.
The appellate case is captioned as Karen Schultz v. Patenaude &
Felix, et al., Case No. 19-1004, in the United States Court of
Appeals for the Third Circuit.[BN]
Plaintiff-Appellant KAREN SCHULTZ, on behalf of herself and all
others similarly situated, is represented by:
Clayton S. Morrow, Esq.
MORROW & ARTIM, PC
304 Ross Street, Suite 703
Pittsburgh, PA 15219
Telephone: (412) 209-0656
E-mail: cmorrow@allconsumerlaw.com
- and -
Jeffrey L. Suher, Esq.
JEFFREY L. SUHER, P.C.
4328 Old William Penn Highway
Monroeville, PA 15146
Telephone: (412) 374-9005
E-mail: jeff@jeffcanhelp.com
Defendant-Appellee PATENAUDE & FELIX is represented by:
Daniel R. Bentz, Esq.
MARKS O'NEILL O'BRIEN DOHERTY & KELLY
707 Grant Street
2600 Gulf Tower
Pittsburgh, PA 15219
Telephone: (412) 467-2021
E-mail: dbentz@moodklaw.com
Defendant-Appellee CACH LLC is represented by:
Mark J. Golen, Esq.
Jessica Lucas, Esq.
GORDON REES SCULLY MANSUKHANI LLP
707 Grant Street, Suite 3800
Pittsburgh, PA 15219
Telephone: (412) 316-2906
E-mail: mgolen@grsm.com
jlucas@grsm.com
PATRIOT NATIONAL: McIntire Suit Moved to S.D.N.Y.
-------------------------------------------------
In the case, ARIC McINTIRE, et al., Plaintiffs, v. STEVEN M.
MARIANO, et al., Defendants, Case No. 18-cv-60075-BLOOM/Valle (S.D.
Fla.), Judge Beth Bloom of the U.S. District Court for the Southern
District of Florida granted the Motion to Intervene and Transfer
filed by Intervenors ODS Capital LLC, Barry A. Smith, and Sunil
Shah.
On March 14, 2017, Plaintiff Anthony L. Gingello, filed a class
action on behalf of himself and others similarly situated, Gingello
v. Patriot National, Inc., Case No. 1:17-cv-01866, in the Southern
District of New York. The Gingello Action alleged claims against
Defendants Patriot National, Inc., Mariano and Thomas Shields under
Sections 10(b) and 20(a) of the Exchange Act on behalf of a class
of persons and entities that purchased Patriot National securities
between Aug. 15, 2016, and March 3, 2017. It alleged that the
Defendants failed to disclose that Patriot National was being run
primarily for Defendant Mariano's benefit rather than for the
benefit of shareholders.
The same day that the Gingello Action was filed, the counsel for
Gingello published a notice on Business Wire, announcing that a
securities class action had been initiated against the defendants.
Pursuant to the Private Securities Litigation Reform Act ("PSLRA")
the lead Plaintiff's motion deadline was set in the Gingello Action
for May 15, 2017. Several members of the purported class filed
motions requesting appointment as the lead Plaintiff pursuant to
the PSLRA.
On Aug. 11, 2017, the counsel for the Plaintiffs in the instant
action filed a Second Amended Complaint in a derivative action on
behalf of Patriot National, with Plaintiffs McIntire and Wasik as
the Plaintiffs, against Defendants Mariano and Shields in the
Delaware Court of Chancery, Wasik v. Mariano, Case No. 12953-VCL
("Derivative Action").
On Sept. 20, 2017, Plaintiff Adam Kayce filed another securities
fraud class action complaint in the Southern District of New York,
Kayce v. Patriot National, Inc., et al., No. 17-cv-07164. The
Kayce complaint asserted claims on behalf of investors who
purchased shares of Patriot National during the class period of
March 3, 2016 through Nov. 14, 2016, and asserted claims against
the Defendants for violations of federal securities laws. On Oct.
12, 2017, the Court consolidated the Kayce Action with the Gingello
Action, designating the Gingello Action as the lead case.
On Nov. 28, 2017, Patriot National announced an anticipated Chapter
11 filing with a plan of reorganization as part of a restructuring
support agreement with its lenders. Accordingly, Patriot
National's direct and indirect U.S.-based subsidiaries were to file
voluntary petitions for relief under Chapter 11 of the U.S.
Bankruptcy Code.
On Jan. 12, 2018, the McIntire Plaintiffs filed the instant action
in the Southern District of Florida. The McIntire Action alleged
Defendants Mariano and Shields violated federal securities laws,
and alleged claims on behalf of all purchasers of Patriot National
common stock from Jan. 15, 2015 to Nov. 22, 2017. The Intervenors
assert that, like the Gingello Action, the McIntire Action focuses
in part on misconduct related to the Patriot's dealings with GIG
and GIC, and alleges that Patriot National put Defendant Mariano's
interests before the interests of its shareholders.
On Jan. 30, 2018, Patriot National officially filed for bankruptcy.
On Feb. 2, 2018, the Court ordered the Gingello Action to be
stayed. On Feb. 25, 2018, the McIntire Plaintiffs submitted a
letter to the judge presiding over the Gingello Action contending
that the McIntire Plaintiffs had the greatest financial interest in
the case, have the only ability to bring all claims on behalf of
the Plaintiff class, and have shown the greatest vigor and interest
in acting to protect the class' interest. There can be no question
that the class is best represented by Wasik and McIntire rather
than ODS or any other competing movant.
On Feb. 27, 2018, the Court temporarily lifted the stay to appoint
the Intervenors as the Co-Lead Plaintiffs in the Gingello Action.
fter appointing the Intervenors as the Co-Lead Plaintiffs, the stay
was re-imposed without prejudice to future requests to lift the
stay following the Bankruptcy Court's ruling on Patriot's stay
application and any mediation that may follow.
On Feb. 28, 2018, the Bankruptcy Court entered an order staying
related litigation and ordering mediation for parties whose claims
may be covered by the existing D&O policies. On March 6, 2018, an
Order staying the case was issued in the McIntire Action. The
Bankruptcy Court ordered that the stay of the action continue
through Aug. 10, 2018, and mandated that all parties with an
interest in claims that may be covered by the existing D&O policies
continue to mediation.
On April 12, 2018, the Intervenors, as the Co-Lead Plaintiffs in
the Gingello Action, submitted their confidential mediation
statement in connection with the April 18-19, 2018 mediation. In
the mediation statement, the Intervenors claim they detailed
preliminary damages estimates in connection with both Exchange Act
claims and Securities Act claims. Exhibits to the mediation
statement included the Southern District of New York's February 27,
2018 Order, appointing the Intervenors as the Co-Lead Plaintiffs,
and a draft of the Gingello proposed Amended Class Action
Complaint. The Intervenors represent that the proposed Amended
Class Action Complaint combined the claims and allegations asserted
by the Gingello Action and the Kayce Action, as well as those in
the McIntire Action, and expanded the class period and added
additional defendants. The mediation resulted in an agreement in
principle to settle the securities law claims on behalf of the
entire class.
On Aug. 14, 2018, after the Bankruptcy Stay had expired, the
McIntire Plaintiffs filed their Motion for Appointment as the Lead
Plaintiffs and Approval of Their Selection of Counsel, which is
presently pending before the Court. On Sept. 5, 2018, the same day
the Intervenors filed their Motion to Intervene and Transfer, the
counsel for the McIntire Plaintiffs filed a duplicative case before
a different judge in the Southern District of Florida, Kaniki v.
Mariano, et al., No. 18-cv-62097.
Two days later, the counsel for McIntire Plaintiffs moved for
transfer and centralization of the consolidated Gingello Action
pending in the Southern District of New York. The two Southern
District of Florida cases, the Kaniki Action and the McIntire
Action, were consolidated in the United States Judicial Panel on
Multidistrict Litigation ("JPML"), In re Patriot National, Inc.,
Securities Litigation, MDL No. 2870.
In their motion for transfer and centralization filed before the
JPML, the McIntire Plaintiffs argued that transfer and
centralization was appropriate because that the multiple
proceedings in multiple venues has led to a disorganized and
inefficient prosecution of the securities class claims.
Should the relief requested by the Intervenors' Motion be granted
by the Court, the Intervenors represent that in order to facilitate
the resolution of the matter, they will file a consolidated amended
complaint in the Gingello Action and adjourn certain defendants'
(including Defendants Patriot National, Mariano, and Shields)
obligation to respond to the consolidated amended complaint to
allow them time to memorialize their agreement with Co-Lead
Plaintiffs to settle the claims against them.
The Intervenors now move to intervene in the styled action, arguing
both that intervention is appropriate as a matter of right under
federal rule of civil procedure 24(a) and permissively under
federal rule of civil procedure 24(b). They also move to have the
instant matter transferred to the Southern District of New York so
that it may be consolidated there under the existing leadership
structure that has previously been appointed by that court. The
Intervenors argue, inter alia, that the McIntire Plaintiffs' Motion
for Appointment as Lead Plaintiffs and Approval of Their Selection
of Counsel pending before the Court is an attempted end run by
lawyers that already unsuccessfully objected to the appointment of
the lead plaintiff and the lead counsel in the existing Gingello
action.
Judge Bloom finds that all required conditions have been met for
the Intervenors to intervene in the action pursuant to Fed. R. Civ.
P. 24(a) and 24(b), and that the transfer of the action is further
warranted pursuant to 28 U.S.C. Section 1404(a). Accordingly, she
granted the Intervenors'Motion to Intervene and Transfer.
The Clerk of Court is directed to transfer the case to the U.S.
District Court for the Southern District of New York. To the
extent not otherwise disposed of, any scheduled hearings are
cancelled, all pending motions are denied as moot, and all
deadlines are terminated.
The Clerk of the Court is further directed to close the case.
A full-text copy of the Court's Dec. 28, 2018 Order is available at
https://is.gd/QyR02o from Leagle.com.
ARIC MCINTIRE, Henry Wasik & MBAGO M. KANIKI, individually and on
behalf of all others similarly situated, Plaintiffs, represented by
Cullin Avram O'Brien -- cullin@cullinobrienlaw.com -- Cullin
O'Brien Law, P.A.
Steven M. Mariano, Defendant, represented by Michael Edward Dutko,
Jr. -- MDutko@conradscherer.com -- Conrad & Scherer & William R.
Scherer -- wscherer@conradscherer.com -- Conrad & Scherer.
Thomas C. Shields & John R. Del Pizzo, Defendants, represented by
Bradley Joseph Bondi -- BBondi@Cahill.com -- Chaill Gordon &
Reindel LLP, Jason M. Hall -- jhall@cahill.com -- Cahill Gordon &
Reindel, LLP, pro hac vice & Peter J. Linken -- plinken@cahill.com
-- Cahill Gordon & Reindell LLP, pro hac vice.
Austin J. Shanfelter, Defendant, represented by Marcos Daniel
Jimenez -- info@mdjlegal.com -- Marcos D. Jimenez, P.A.
CHRISTOPHER PESCH & QUENTIN P. SMITH, Defendants, represented by
Erica Gomer , Akerman LLP, Jason Samuel Oletsky , Akerman
Senterfitt, Christopher Bosch , Sheppard Mullin Richter & Hamilton
LLP, pro hac vice, John P. Stigi, III , Sheppard Mullin Richter &
Hamilton LLP, pro hac vice, Kandace Watson , heppard Mullin Richter
& Hamilton LLP, pro hac vice & Rena Andoh , Sheppard, Mullin,
Richter & Hampton, LLP, pro hac vice.
BDO USA LLP, Defendant, represented by Audrey M. Pumariega,
McDermott Will & Emery LLP, Jason D. Gerstein, McDermott Will &
Emery LLP, pro hac vice, Seth L. Friedman, McDermott Will & Emery
LLP & Michael Edward Dutko, Jr., Conrad & Scherer.
UBS Securities LLC, BMO CAPITAL MARKETS CORP, Suntrust Robinson
Humphrey, Inc., JMP SECURITIES LLC & WILLIAM BLAIR & COMPANY,
L.L.C., Defendants, represented by Alan J. Brudner, Katten Muchin
Rosenman LLP, pro hac vice, David L. Goldberg, Katten Muchin
Rosenman LLP, pro hac vice, Jezabel Pereira Lima, Levine Kellogg
Lehman Schneider & Grossman LLP & Lawrence Allan Kellogg, Levine
Kellogg Lehman Schneider & Grossman LLP.
Anthony Gingello, Intervenor, represented by Josh M. Rubens --
jrubens@klugerkaplan.com -- Kluger, Kaplan, Silverman, Katzen &
Levine, P.L..
PAYTIME INC: Judge Okays Data Breach Class Action Settlement
------------------------------------------------------------
Matt Miller, writing for Pennlive.com, reports that more than four
years after the hacking occurred, a federal judge in Harrisburg has
approved a settlement of a class-action lawsuit filed over a data
breach at a Cumberland County-based payroll firm.
The deal U.S. Middle District Judge John E. Jones III sanctioned
gives $2,500 "incentive awards" to each of the six clients who sued
Paytime Inc. over the April 2014 breach. Paytime must provide 740
other customers who joined the class action with a year of free
credit monitoring and $1 million in identity theft insurance.
Also, Paytime must pay more than $200,000 in legal fees for the
attorneys who represented those who sued the company.
The settlement resolved a legal dispute that continued even after
Jones dismissed the clients' lawsuit in 2015. At that time, Jones
found they hadn't shown they had suffered any damages from the
breach.
Paytime officials estimated the hacking placed about 233,000
clients at risk nationwide. [GN]
PROVIDENT SAVINGS: Court Dismisses McKeen-Chaplin FLSA Suit
-----------------------------------------------------------
Judge Morrison C. England, Jr. of the U.S. District Court for the
Eastern District of California dismissed the case, GINA
McKEEN-CHAPLIN, individually, on behalf of all others similarly
situated, and on behalf of the general public, Plaintiffs, v.
PROVIDENT SAVINGS BANK, FSB, Defendant, Case No.
2:12-cv-03035-MCE-AC (E.D. Cal.).
The Superior Court for Alameda County granted final settlement
approval to the state law class action settlement in Neal v.
Provident Savings Bank, FSB by order dated Nov. 13, 2018, and
served on Nov. 20, 2018. Because the Neal court granted final
approval without substantive modification, the instant case may be
closed. In light of the final settlement approval in Neal, and the
Court's previous grant of settlement approval, the parties now
stipulate that the action may be dismissed.
Therefore, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the parties
stipulated, and Judge England granted, that the action be dismissed
in its entirety. Except as specifically stated in the parties'
settlement agreement and the Court's order, each side will bear its
own fees and costs. The Clerk of the Court is directed to close
the case.
A full-text copy of the Court's Jan 2, 2019 Order is available at
https://is.gd/JWuVET from Leagle.com.
Gina McKeen-Chaplin, Plaintiff, represented by Matthew C. Helland
-- helland@nka.com -- Nichols Kaster, LLP & Daniel Solomon Brome --
dbrome@nka.com -- Nichols Kaster, LLP.
Provident Savings Bank, F.S.B., Defendant, represented by Howard M.
Knee -- Knee@BlankRome.com -- at Blank Rome LLP & Michael Lester
Ludwig -- ludwig@blankrome.com -- at Blank Rome LLP.
RAY BUILDERS: Plymouth Seeks $125,703 for Work & Labor Services
---------------------------------------------------------------
PLYMOUTH INDUSTRIES LLC, Individually and on behalf of all other
lienors, claimants or creditors for work and/or materials due and
owing in connection with the construction and improvement of
certain real property, the Plaintiff, vs. RAY BUILDERS INC., CAB
GRAM DEVELOPER LLC, and "John Doe" said name being fictitious, true
name being unknown to plaintiff, person intended being unknown to
plaintiff, person intended being an officer or director of RAY
BUILDERS INC., the Defendants, Case No. 650032/2019 (N.Y. Sup. Ct.,
Jan. 3, 2019), seeks judgment against the Defendant in the sum of
$125,703.52 with interest.
According to the complaint, the Plaintiff was hired and engaged by
non-party, Red Hook Construction Group II LLC to perform work,
labor and services and to furnish materials in connection with the
construction and improvement of the premises located at "Gramercy
Square" -- 209 East 19th Street, New York, New York. The Plaintiff
performed all of the work, labor or services on its part to be
performed and furnished all of the materials on its part to be
furnished and otherwise performed all of the terms, covenants and
conditions of the agreement on its part to be performed. The agreed
price and fair and reasonable value of the work, labor and services
performed was $574,234.52, no part of which balance has been paid
or credited, except the sum of $448,531, leaving a balance due and
owing of $125,703.52, no part of which has been paid, although
payment has been duly demanded.
On May 11, 2018, the Defendant agreed to pay the outstanding
balance due of $125,703.52 in exchange for a duly-executed final
unconditional lien waiver. The Plaintiff provided the Defendant, a
duly executed final unconditional lien waiver in exchange for
payment of the sum of $125,703.52. The Defendant failed to remit
payment pursuant to the agreement with the Plaintiff, the lawsuit
says.
Ray Builders Inc. was founded in 1964. The company's line of
business includes the construction of single-family homes.[BN]
Attorneys for Plaintiff:
Stuart Zisholtz, Esq.
ZISHOLTZ & ZISHOLTZ, LLP
200 Garden City Plaza
Garden City, NY 11530
Telephone: (516)741-2200
RECOLOGY INC: Cal. App. Affirms Judgment in Daniels Suit
--------------------------------------------------------
In the case, HEZZACK DANIELS et al., Plaintiffs and Appellants, v.
RECOLOGY, INC., et al., Defendants and Appellants. TIMON HOWARD et
al., Plaintiffs and Appellants, v. RECOLOGY, INC., et al.,
Defendants and Appellants, Case No. A141999 (Cal. App.), Judge
Martin J. Jenkins of the Court of Appeals of California for the
First District, Division Three, affirmed the trial court's
dismissal of all remaining causes of action, and its judgment for
Recology.
The Plaintiffs appeal from the judgment in an employee class action
lawsuit brought against Defendants Recology, Inc. and Recology San
Francisco, Inc., a garbage and recycling collecting company with
two facilities in San Francisco, one located at Pier 96 and the
other at 501 Tunnel Avenue. The lawsuit accuses Recology of
violating the privacy and other rights of certain employees engaged
as "Classifiers" at the Pier 96 facility or "Material Handlers" at
the 501 Tunnel Avenue facility in connection with Recology's
administration of a random drug testing program.
The Plaintiffs are two certified classes consisting of employees
working in San Francisco for Recology in one of two job
classifications: "Classifiers" represented by Plaintiff Daniels, or
"Material Handlers" represented by Plaintiffs Hunter and Smith.
Due to the risks posed by these types of tasks, both the
Classifiers and the Material Handlers wear safety gear in order to
protect against injury from any hazardous material present among
the recyclables. The employees also risk injury from their
involvement with vehicle traffic and conveyor belts; from improper
lifting of materials (including waste and debris); and from working
with or near fork lifts or front-end loaders. There are monthly
safety meetings to address these and other safety issues.
Workplace injuries and the resulting loss of workdays are not
uncommon.
On Nov. 27, 2013, the operative complaint—the third amended
consolidated complaint—was filed, asserting the following claims:
drug testing, an unfair business practice under Business and
Professions Code section 17200 (4th cause of action); disability
accommodation discrimination in violation of the California Fair
Employment and Housing Act ("FEHA"); violation of privacy rights
guaranteed by the California Constitution (7th cause of action);
forced medical testing in violation of FEHA (9th cause of action);
failure to prevent a FEHA violation (10th cause of action);
retaliation in violation of FEHA (11th cause of action);
retaliation in violation of Labor Code section 1102.5 (12th cause
of action); violations of rights under the Bane Act by threat,
intimidation and coercion (13th cause of action); and declaratory
and injunctive relief (14th cause of action).
These claims arise from a random drug testing program initiated by
Recology in 1995 pursuant to its substance abuse policy. At first,
the program applied only to employees subject to Department of
Transportation ("DOT") regulations, including its truck drivers.
The Plaintiffs did not qualify as DOT-regulated employees, but were
members of the Teamsters union. In May 2006, Recology and the
union entered into two similar collective bargaining agreements
("CBA") governing employee wages, hours and working conditions.
Disputes regarding interpretation or enforcement of the CBA were
subject to mandatory binding arbitration at the request of either
party.
In 2009, Recology and the union began discussions regarding
expanding the substance abuse policy to include non-DOT-regulated
employees (like the Plaintiffs) as a means to ensure these
employees received the same contract rights to rehabilitation and
reinstatement as DOT-regulated employees. At the time, Recology's
San Francisco-based employees were subject to a municipal police
code provision barring employers from subjecting employees to
random drug testing unless authorized by a CBA. Thus, on May 19,
2009, Recology and the union entered into a letter of understanding
("LOU") that accomplished just that—equalizing the policy as to
both DOT- and non-DOT-regulated employees.
Specifically, the LOU provides in relevant part that since all the
job positions covered by these CBA's implicate safety concerns,
Section 26 of the CBA's is intended to adopt and apply the drug and
alcohol testing requirements of the Federal Motor Carrier Safety
Administration ("FMCSA") to all employees subject to these
Agreements.
All union members were thereafter informed in writing that, per the
LOU, Recology's substance abuse policy would extend to union
employees holding safety-sensitive jobs, including the Plaintiffs,
in 60 days. Thus, on Oct. 13 and 14, 2009, two "all hands"
meetings were held—and attended by each Plaintiff -- wherein a
third party administrator, Concorde, Inc., explained to union
members the drug testing procedures mandated under Recology's
policy that would soon apply to them.
In November or December 2009, random drug testing at Recology
began, with Concorde making the random selections and administering
the tests and two independent laboratories collecting and analyzing
participants' urine samples. With respect to failed tests,
Concorde contacted the participant and requested a medical
explanation. If none was offered, the participant was then
suspended with the opportunity for full reinstatement if the
participant signed a return to work agreement and promised to
complete a drug treatment program and to submit to follow-up drug
tests after returning to work.
The Plaintiffs, except Howard, were among 22 employees failing drug
tests during Concorde's first 18 random selections. In February
2010, the union filed grievances on behalf of each employee testing
positive. On Feb. 15, 2011, the union and Recology entered into a
negotiated grievance resolution calling for reinstatement of those
employees suspended on the basis of an initial positive test
(plaintiffs Smith and Daniels) or refusal to test (Plaintiff
Johnson). No grievance was filed on behalf of plaintiff Howard
with respect to his selection for testing.
In late 2012, the union and Recology agreed to renewed CBA's, which
contained a modified, albeit similar, provision governing drug
testing that reduced the suspension period for a first violation to
one month from three. Union members thereafter ratified these
renewed CBA's, and they were thus given full force and effect.
Based primarily on these CBA's, Recology filed a series of motions
seeking dismissal of the Plaintiffs' claims. The trial court first
considered Recology's motion for summary adjudication of the
Plaintiffs' privacy claims (4th and 7th causes of action) and, in
its Oct. 2, 2013 order to grant this motion, accepted Recology's
argument that said claims were preempted under section 301 of the
LMRA. On Nov. 13, 2013, the trial court sustained Recology's
demurrer with leave to amend the 13th cause of action for violation
of the Bane Act on the ground that said cause arises from the same
preempted privacy claims rejected by the court on Oct. 2, 2013.
Pursuant to stipulation, the trial court also ruled as a general
matter that all court rulings made against the individual claims in
the 4th, 7th, 9th, 13th and 14th causes of action would apply
equally to the certified class claims and that, going forward, all
court summary adjudication rulings would be binding on all class
members. The trial court further ruled that any cause of action
asserting invasion of privacy would be governed by the court's Oct.
2, 2013 order granting summary adjudication on preemption grounds
and, thus, should be deemed dismissed with prejudice. Finally, the
parties stipulated that, if the court granted the pending summary
adjudication motions, judgment would be entered in Recology's favor
and against all the Plaintiffs, individual and class.
On March 28, 2014, the trial court did just that—summarily
adjudicated all remaining claims in Recology's favor and entered
judgment of dismissal against all the Plaintiffs, individual and
class. The appeal, as well as Recology's protective cross-appeal,
followed.
The Plaintiffs challenge the trial court's dismissal of the
following causes of action: unfair business practice, drug testing
in violation of Business and Professions Code section 17200 (4th
cause of action) (class and individual); disability accommodation
discrimination in violation of FEHA (5th cause of action)
(Daniels); violation of privacy rights guaranteed by the California
Constitution (7th cause of action) (class and individual); forced
medical testing in violation of FEHA (9th cause of action) (class
and individual); failure to prevent a FEHA violation (10th cause of
action) (class and individual); retaliation in violation of FEHA
(11th cause of action) (Daniels and Hunter); retaliation in
violation of Labor Code section 1102.5 (12th cause of action)
(Daniels and Hunter); violations of rights under the Bane Act by
threat, intimidation and coercion (13th cause of action) (class and
individual); and declaratory and injunctive relief (14th cause of
action) (class and individual).
Judge Jenkins affirmed the judgment. Among other things, he
concludes that there is no reasonable inference to be drawn that
Recology suspended and then terminated Hunter because of his
statements and actions opposing the substance abuse policy and not
because of its investigation confirming Hunter had repeatedly
violated corporate policy against workplace violence. He thus
affirms the trial court's ruling on this ground and needs not
inquire into whether Hunter's claim is preempted under the National
Labor Relations Act.
He also concludes that because there is no evidence in the record
that Recology suspended Daniels because of his diabetes -- a
fundamental requirement of his FEHA claim -- Recology's duty to
accommodate Daniels's diabetes by altering the drug testing
procedure in his case was not triggered.
The Judge finds that the Plaintiffs have failed their burden to
affirmatively prove error on appeal as to the court's dismissal of
their 12th cause of action. Their broad assertions are not
evidence sufficient to defeat summary adjudication that they
complained about the activity they allege in the case to be
unlawful -- Recology's drug testing program.
The Judge agrees with the trial court Recology was authorized to
mandate drug treatment counseling and retesting for employees, like
the Plaintiffs, testing positive for prohibited substances in order
to enforce its substance abuse and drug-free workplace policies
given the serious potential consequences to health, safety and
productivity of having in the workplace employees affected by these
substances. The Plaintiffs failed their burden to raise any
material triable issue in dispute of this fact and, as such, their
claim was properly disposed of on summary adjudication.
Because the Plaintiffs have failed to establish that Recology
violated any law, as they concede by failing to argue otherwise,
the Judge holds that they have not established any right to relief,
whether in the form of damages or declaratory relief.
Finally, as to Recology's cross-appeal, the Judge finds no error in
the trial court's rulings disposing of each and every remaining
cause of action, Recology's cross-appeal is moot and needs not be
considered.
A full-text copy of the Court's Dec. 28, 2018 Opinion is available
at https://is.gd/Kc32zr from Leagle.com.
RED HAT: Investor Files Class Action in Delaware Over IMB Sale
--------------------------------------------------------------
Bonnie Eslinger, writing for Law360, reports that a Red Hat Inc.
investor filed a putative class action on Dec. 18 in Delaware
federal court seeking to block a shareholder vote on the software
company's planned $34 billion sale to IBM. [GN]
ROYAL CARIBBEAN: Judge Recommends Denial of Class Action Motions
----------------------------------------------------------------
Karen Kidd, writing for Florida Record, reports that the families
for autistic children suing a luxury cruise liner after being
tossed about during passage through rough weather in 2016 have set
themselves "a banquet of consequences," a magistrate judge said
while recommending motions in the class action be denied.
In his 37-page omnibus report and recommendation issued Dec. 11,
U.S. Magistrate Judge Jonathan Goodman, on the bench in Florida's
Southern District, Miami Division, quoted 19th-century "Treasure
Island" author Robert Louis Stevenson. Stevenson, the judge wrote,
"provided insight that could easily apply to a failure to follow
rules: 'Everybody, sooner or later, sits down to a banquet of
consequences'."
Judge Goodman applied the Stevenson quote to the families who
filed the class action. "As outlined in this report and
recommendations, plaintiffs appear to have set their own banquet of
consequences by failing (once again) to comply with Local Rule
7.1.," Goodman wrote.
Judge Goodman recommended that U.S. District Court Judge Jose E.
Martinez deny the plaintiff's motions to exclude defense expert
testimony, at least in part, for repeated failure to comply with
the local rule. Judge Goodman also recommended Martinez deny in
part similar motions filed by defendant in the case, Royal
Caribbean Cruises Ltd.
The class action originally was filed in March 2016 by 40 families
of autistic children following rough passage aboard the Anthem of
the Seas during a winter storm that kicked up hurricane-force winds
off the Carolina coast the previous February. The families,
including lead plaintiff Donna Incardone, claimed the luxury cruise
company's officials had been negligent in deciding to sail the
vessel into the storm despite forecasted turbulent weather.
The families claimed in their initial lawsuit that passengers were
"hurled against cabin walls, floors and furniture, sustaining
bodily and psychic injuries" and that the children were "severely
battered and traumatized."
Royal Carribean claims the storm had been "an unexpected Act of
God" and that the families cannot recover damage under maritime
law.
As part of more recent developments in the now more than 2-year-old
case, both sides have moved to exclude or limit the other side's
expert testimony. Plaintiffs filed to strike expert testimony of
two rebuttal defense experts while Royal Caribbean Cruises, filed a
motion to strike or limit the testimony of five plaintiffs' expert
witnesses.
Plaintiffs' repeated failure comply with Local Rule 7.1 is enough
to merit denial of their motions and their counsel has been
admonished for their failure to comply, Judge Goodman wrote in his
report and recommendations. Plaintiffs also accused Royal Caribbean
of not complying with the same rule, which "does not excuse
plaintiffs' own violations," Judge Goodman wrote. [GN]
SABOR GUATEMALTECO: Susano et al. Seek Minimum & Overtime Pay
-------------------------------------------------------------
ARCELIA SUSANO and LETICIA MAGALI MAURICIO VALDEZ, individually and
on behalf of others similarly situated, the Plaintiffs, vs. SABOR
GUATEMALTECO INC. (D/B/A SABOR GUATEMALTECO), NOE ESTRADA, and
LILIAN CRUZ, the Defednants, Case No. 1:18-cv-07438 (E.D.N.Y., Dec.
28, 2018), seeks to recover unpaid minimum and overtime wages
pursuant to the Fair Labor Standards Act of and the New York Labor
Law.
According to the complaint, the Plaintiffs were employed as a cook
and a food preparer at the Guatemalan restaurant located at 103-18
Roosevelt Ave, Corona, New York 11368. The Plaintiffs worked for
Defendants in excess of 40 hours per week, without appropriate
minimum wage, overtime, and spread of hours compensation for the
hours that they worked. Rather, the Defendants failed to maintain
accurate record-keeping of the hours worked and failed to pay the
Plaintiffs appropriately for any hours worked, either at the
straight rate of pay or for any additional overtime premium.
Further, the Defendants failed to pay Plaintiffs the required
"spread of hours" pay for any day in which they had to work over 10
hours a day. Furthermore, the Defendants repeatedly failed to pay
Plaintiffs wages on a timely basis. The Defendants' conduct
extended beyond Plaintiffs to all other similarly situated
employees. The Defendants maintained a policy and practice of
requiring Plaintiffs and other employees to work in excess of 40
hours per week without providing the minimum wage and overtime
compensation required by federal and state law and regulations, the
lawsuit says.[BN]
Attorneys for Plaintiffs
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Faillace@employmentcompliance.com
SACRAMENTO COUNTY, CA: Court Certifies Inmate Disability Class
--------------------------------------------------------------
In the case, LORENZO MAYS, et al., Plaintiffs, v. COUNTY OF
SACRAMENTO, Defendant, Case No. 2:18-cv-02081-TLN-KJN (E.D. Cal.),
Judge Troy L. Nunley of the U.S. District Court for the Eastern
District of California granted the parties' joint motion for class
certification.
The Plaintiffs, state prisoners proceeding with retained counsel,
filed the civil rights action seeking relief under 42 U.S.C.
Section 1983. The parties brought a joint motion for class
certification. The matter was referred to a U.S. Magistrate Judge
pursuant to 28 U.S.C. Section 636(b)(1)(B) and Local Rule 302.
On Nov. 30, 2018, the Magistrate Judge filed findings and
recommendations which were served on all parties and which
contained notice to all parties that any objections to the findings
and recommendations were to be filed within 10 days. Neither party
has filed objections to the findings and recommendations.
Judge Nunley has reviewed the file and finds the findings and
recommendations to be supported by the record and by the Magistrate
Judge's analysis. Accordingly, he adopted in full the findings and
recommendations filed Nov. 30, 2018. He certified the action as a
class action as to all claims and defenses at issue in the
Complaint pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the
Federal Rules of Civil Procedure.
The Judge certified the following classes:
a. Plaintiff Class: All people who are now, or in the future
will be, incarcerated in the Sacramento County jails.
b. Plaintiff Subclass (the Disability Class): All qualified
individuals with disabilities, as that term is defined in 42 U.S.C.
Section 12102, 29 U.S.C. Section 705(9)(B), and California
Government Code Section 12926(j) and (m), who are, or will be in
the future, incarcerated in the Sacramento County jails.
Plaintiffs Mayes, Richardson, Bothun, Lee, Beirge, and Garland are
certified to serve as the class representatives; and Disability
Rights California, the Prison Law Office, and Cooley LLP as the
class counsel.
A proposed notice to the Plaintiff Class and the Disabilities
Subclass, and the proposed method of distribution of such notice,
was appended to the parties' joint status report and is under
review by the assigned magistrate judge.
A full-text copy of the Court's Dec. 28, 2018 Order is available at
https://is.gd/3ldK9B from Leagle.com.
Armani Lee, Leertese Beirge, Ricky Lee Richardson, Jr., Cody
Garland, Lorenzo Mays & Jennifer Bothun, Plaintiffs, represented by
Donald Specter, Prison Law Office, Jessica Valenzuela Santamaria --
jvs@cooley.com -- Cooley LLP, Addison Mills Litton --
alitton@cooley.com -- Cooley LLP, Anne Hadreas --
anne.Hadreas@disabilityrightsca.org -- Disability Rights
California, Kathlyn Anne Querubin -- kquerubin@cooley.com -- Cooley
LLP, Margot Knight Mendelson -- mmendelson@prisonlaw.com -- Prison
Law Office, Mark Anthony Zambarda -- mzambarda@cooley.com -- Cooley
LLP, Sophie Jedeikin Hart -- sophieh@prisonlaw.com -- Prison Law
Office, Tifanei Ressl-Moyer --
Tifanei.Ressl-Moyer@disabilityrightsca.org -- Disability Rights
California & Aaron Joseph Fischer --
Aaron.Fischer@disabilityrightsca.org -- Disability Rights
California.
County of Sacramento, Defendant, represented by Todd Holton Master
-- tmaster@hrmrlaw.com -- Howard Rome Martin & Ridley LLP & Shawn
M. Ridley -- sridley@hrmrlaw.com -- Howard Rome Martin & Ridley.
SAMSUNG ELECTRONICS: 9th Circuit Appeal Filed in Dang Suit
----------------------------------------------------------
Plaintiff Hoai Dang filed an appeal from a court ruling in his
lawsuit styled HOAI DANG, on behalf of himself and all others
similarly situated v. SAMSUNG ELECTRONICS COMPANY, LTD.; SAMSUNG
ELECTRONICS AMERICA, INC.; SAMSUNG TELECOMMUNICATIONS AMERICA, LLC,
Case No. 5:14-cv-00530-LHK, in the U.S. District Court for the
Northern District of California, San Jose.
As previously reported in the Class Action Reporter, the Plaintiff
asserts that Samsung has "repeatedly infringed the patents of its
chief competitor, Apple," and he contends had he known the phone he
purchased for $199 "infringed" on patents he would not have bought
it.
Mr. Dang also claimed that because of Samsung's infringements, the
South Korean giant's cellular products are worth far less than what
consumers paid and that the resale value of the smartphones has
"dropped dramatically" following patent-infringement verdicts in
favor of Apple.
The appellate case is captioned as HOAI DANG, on behalf of himself
and all others similarly situated, Plaintiff-Appellant v. SAMSUNG
ELECTRONICS COMPANY, LTD.; SAMSUNG ELECTRONICS AMERICA, INC.;
SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, Defendants-Appellees, Case
No. 19-15007, in the United States Court of Appeals for the Ninth
Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- February 1, 2019 -- Transcript shall be ordered;
-- March 4, 2019 -- Transcript shall be filed by court
reporter;
-- April 12, 2019 -- Appellant's opening brief and excerpts of
record shall be served and filed pursuant to FRAP 31 and
9th Cir. R. 31-2.1;
-- May 13, 2019 -- Appellees' answering brief and excerpts of
record shall be served and filed pursuant to FRAP 31 and
9th Cir. R. 31-2.1; and
-- The optional appellant's reply brief shall be filed and
served within 21 days of service of the appellees' brief,
pursuant to FRAP 31 and 9th Cir. R. 31-2.1.[BN]
SANIMAX USA: Court Denies Bid to Strike Class Claims in Keech Suit
------------------------------------------------------------------
In the case, PATRICIA KEECH and DAVID NEWFIELD, on behalf of
themselves and others similarly situated, Plaintiffs, v. SANIMAX
USA, LLC, Defendant, Civil No. 18-683 (JRT/HB) (D. Minn.), Judge
John R. Tunheim of the U.S. District Court for the District of
Minnesota denied Sanimax's Motion to Strike Class Allegations.
Keech and Newfield bring the purported class action against
Sanimax, a rendering and waste oil processing facility located in
the City of South St. Paul. The Facility purifies agri-food
industry by-products and turns them into animal feed, pet food,
soap, and industrial chemicals.
The Plaintiffs allege that their properties have been, and continue
to be, physically invaded by noxious odors originating from the
Facility. They allege that Sanimax is liable in both nuisance and
negligence for interfering with their use and enjoyment of their
property as well as for decreased property values. They allege
that the Facility has a well documented history of failing to
control its odorous emissions. The people living nearby have filed
complaints with the City of South St. Paul, and in February 2015
the City designated the Facility a "Significant Odor Generator.
The Plaintiffs allege that approximately 80 households have
contacted their counsel regarding odors they attribute to the
Facility. They also allege that Sanimax has "failed to install and
maintain adequate technology to properly control its emissions of
noxious odors, including the Facility's ozone generation system,
odor abatement equipment, and raw material intake and storage
systems.
The Plaintiffs propose a class defined as any and all individuals
who owned or occupied residential property at any time beginning in
2015 to present that are located within the area outlined in the
map. The map shows the location of the Facility surrounded by
three concentric circles that delineate three radii around the
facility: 1-mile, 1.5-miles, and 2-miles. The Plaintiffs seek
compensatory and punitive damages as well as injunctive relief
beyond that which is already required by Sanimax's Federal- and
State-issued Air Permits.
Presently before the Court is Sanimax's Motion to Strike Class
Allegations. It seeks to strike the class allegations set forth in
the Complaint and seeks to amend the caption to eliminate "all
others similarly situated."
Because Judge Tunheim finds that it is too early to determine
whether the Plaintiffs' claims could be proven on a class-wide
basis, the Court denied Sanimax's Motion to Strike Class
Allegations. While the Plaintiffs' claims may ultimately be
unsuitable for class-wide resolution, the Judge holds he will not
use the Court's discretion to take the disfavored action of
striking class allegations at this time. Without discovery in the
case, he says he cannot undertake the rigorous analysis required of
the class allegations.
A full-text copy of the Court's Jan 2, 2019 Memorandum Opinion and
Order is available at https://is.gd/oyPLBd from Leagle.com.
Patricia Keech, on behalf of themselves and all others similarly
situated & David Newfield, on behalf of themselves and all others
similarly situated, Plaintiffs, represented by Brandon Thomas Brown
-- bbrown@ldclassaction.com -- Liddle & Dubin PC, pro hac vice,
Jeffrey S. Storms -- jeff@newmarkstorms.com -- Newmark Storms
Dworak LLC & Laura L. Sheets -- info@LDclassaction.com -- Liddle &
Dubin, P.C., pro hac vice.
Sanimax USA, LLC, Defendant, represented by Andrew W. Davis --
andrew.davis@stinson.com -- Stinson Leonard Street LLP, Bryant D.
Tchida -- bryant.tchida@stinson.com -- Stinson Leonard Street LLP &
Matthew J. Salzman -- matt.salzman@stinson.com -- Stinson Leonard
Street LLP, pro hac vice.
SARBANAND FARMS: Court Certifies H-2A Blueberry Harvester Class
---------------------------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, issued an Order granting Plaintiffs' Motion
for Class Certification in the case captioned BARBARO ROSAS and
GUADALUPE TAPIA, as individuals and on behalf of all other
similarly situated persons, Plaintiffs, v. SARBANAND FARMS, LLC,
MUNGER BROS., LLC, NIDIA PEREZ, and CSI VISA PROCESSING S.C.,
Defendants. Case No. C18-0112-JCC.(W.D. Wash.).
The Plaintiffs move for certification of a proposed class and
subclass. The Plaintiffs propose a 2017 H-2A Blueberry Harvester
Class, defined as, "All Mexican nationals who worked at Sarbanand
Farms, LLC in Sumas, Washington picking blueberries pursuant to an
H-2A contract that offered employment from July 2017 through
October 2017." The proposed 2017 H-2A Blueberry Harvester Class
alleges that all Defendants violated the Washington Farm Labor
Contractor Act ("FLCA"), Wash. Rev. Code Section 19.30, for using
unlicensed farm labor contractors to recruit members of the class.
The proposed 2017 H-2A Blueberry Harvester Class also alleges that
Growers violated the federal Trafficking Victims Protection Act
("TVPA"), 18 U.S.C. Section 1589, violated Washington's Law Against
Discrimination ("WLAD"), Wash. Rev. Code. Section 49.60.180(3), and
breached the H-2A contracts between the parties.
The Plaintiffs also propose a Wrongful Termination Subclass,
defined as "approximately 70 H-2A workers who were terminated and
evicted from Sarbanand Farms for protesting dangerous working
conditions." The proposed Wrongful Termination Subclass alleges
that Growers violated Washington's Little Norris-LaGuardia Act
("WLNL"), Wash. Rev. Code Section 49.32.020, and violated
Washington's employment and landlord-tenant laws by improperly
discharging and evicting the subclass members.
Numerosity
The Plaintiffs assert that there are 600 members of the H-2A
Blueberry Harvester Class and 70 members of the Wrongful
Termination Subclass. The Defendants agree that both the class and
subclass, if certified, would satisfy the numerosity requirement.
Therefore, the Court finds that numerosity is satisfied as to both
the H-2A Blueberry Harvester Class and the Wrongful Termination
Subclass.
Commonality
2017 Blueberry Harvester Class
FLCA Claim
The Plaintiffs argue that a common question exists as to Defendant
Perez's liability under the FLCA because she admits that she
transmitted a list of potential visa applicants for work at
Defendant Sarbanand Farms in 2017 to Defendant CSI, which included
workers who had previously worked for Defendant Sarbanand Farms in
2015 or 2016. The Court finds that the common question of whether
Defendant Perez violated the FLCA is only applicable to those
members of the 2017 Blueberry Harvester Class who appeared on the
list sent by Defendant Perez to Defendant CSI (the 2017 Blueberry
Harvester Class, Defendant Perez Subclass.
TVPA Claims
The Plaintiffs assert that a common question exists as to whether
Growers violated the TVPA when they compelled putative class
members to continue to work through a variety of threats, including
implied threats that they would be sent back to Mexico if they
complained or did not meet Growers' production standard. The Court
finds that common questions exist regarding whether Growers
obtained labor or services from the 2017 Blueberry Harvester Class
in violation of 18 U.S.C. Section 1589(a)(3) and 18 U.S.C. Section
1589(a)(4).
WLAD Claim
The Plaintiffs allege that Growers created a hostile work
environment in violation of Revised Code of Washington Section
49.60.180(3) when they engaged in a practice of threatening to send
workers back to their home country for any work condition
complaints. The Defendants' arguments in response focus on whether
individualized issues, particularly whether individual putative
class members heard the alleged threats and interpreted them as
threats, predominate over class-wide issues. Therefore, the Court
finds that a common question regarding whether Growers violated the
WLAD exists as to the 2017 Blueberry Harvester Class.
Breach of Contract Claims
In this case, Defendant Sarbanand Farms' H-2A contracts provided
that, "Workers may work at a sustained, vigorous pace and make
bona-fide efforts to work efficiency and consistently that are
reasonable under the climatic and all other working conditions."
The H-2A contracts further provided that Defendant Sarbanand Farms
would provide putative class members with three meals per day in
exchange for deducting $12.07 per day from their paychecks. When
putative class members arrived in Washington to work for Defendant
Sarbanand Farms, they were informed that they were required.
Wrongful Termination Subclass
Termination for Engaging in Protected Activities Claim
The Plaintiffs assert that a common question exists as to whether
Growers violated Washington employment law when they terminated the
Wrongful Termination Subclass for holding a one-day strike to
protest working conditions. The Defendants' arguments in response
focus on whether the issues of individual members of the Wrongful
Termination Subclass's intent when they did not go to work on
August 4, 2017 and Growers' reason for terminating the subclass
members predominate over the common question. Therefore, the Court
finds that a common question regarding whether Growers violated
Revised Code of Washington section 49.32.020 exists as to the
Wrongful Termination Subclass.
Unlawful Eviction Claim
The Plaintiffs contend that Growers unlawfully evicted members of
the Wrongful Termination Subclass when Growers threatened to call
law enforcement and immigration authorities if members of the
subclass did not vacate their housing within an hour. Defendants do
not contend that this question is not common to members of the
Wrongful Termination Subclass. Therefore, the Court finds that a
common question exists regarding whether Growers unlawfully evicted
the Wrongful Termination Subclass.
Typicality
Plaintiffs Rosas and Tapia have each declared that the recruiter of
Defendant CSI who they met with did not present a labor contractor
licensor or say that Defendant CSI had a bond, that they received
implicit threats that they would be sent back to Mexico in response
to questions or complaints while working for Defendant Sarbanand
Farms, that they were present at the meeting where Defendant Perez
said they could not take a day off unless they were on their death
beds, that they were held to a production standard not set forth in
their employment contracts, and that they were given food of
insufficient quality and quantity.
In response, the Defendants contend that the named Plaintiffs'
claims are not sufficiently coextensive with those of the 2017
Blueberry Harvester Class because both named Plaintiffs were
terminated prior to the conclusion of their employment contract.
Thus, Defendants argue that the named Plaintiffs are unaware of
what happened for the majority of the time spent on the farm. But
the duration of the harm suffered by the named Plaintiffs relative
to other members of the 2017 Blueberry Harvester Class is not
determinative of the typicality of their claims. Both they and the
other members of the 2017 Blueberry Harvester Class were subjected
to the same alleged course of harmful conduct by Defendants giving
rise to their common claims.
The fact that the pattern of alleged misconduct and harm may have
subsided after Plaintiffs Rosas and Tapia were terminated does not
cure the alleged harms that had already occurred to the 2017
Blueberry Harvester Class. Therefore, the Court finds that the
named Plaintiffs' claims are typical of the 2017 Blueberry
Harvester Class.
Adequacy of Representation
The named Plaintiffs have asserted that they understand the claims
in this case and the need to think and act on behalf of the class
members while following the orders of the Court. Plaintiffs'
counsel have experience in representing workers in class action
litigation and will vigorously prosecute this action.
In response, the Defendants only argue that the Plaintiffs have a
potential conflict of interest with the 2017 Blueberry Harvester
class in that they worked for Growers for a much shorter period,
and therefore have less of a vested interest. Defendant's argument
does not present a conflict of interest because the named
Plaintiffs' length of exposure to the alleged misconduct does not
make Defendants' alleged violations of law any less severe, as
discussed above.
Therefore, the Court finds that the named Plaintiffs and their
counsel will adequately represent the 2017 Blueberry Harvester
Class, 2017 Blueberry Harvester Class, Defendant Perez Subclass,
and Wrongful Termination Subclass.
Rule 23(b)(3)
Predominance
2017 Blueberry Harvester Class Claims
FLCA
A common question applicable to the 2017 Blueberry Harvester Class
exists as to the Defendants' liability for violation of the FLCA
stemming from Defendant CSI's alleged recruitment of putative class
members without the necessary licensure. A common question exists
as to Defendant Perez's liability for violation of the FLCA to
those putative class members in the 2017 Blueberry Harvester Class
who appeared on the list Defendant Perez sent to Defendant CSI to
assist in its recruitment of H-2A workers. Defendants do not
contend that individual questions predominate over these particular
common questions. Both common questions are susceptible to
generalized, class-wide proof: whether Defendant CSI improperly
recruited putative class members without holding the required
license, and whether Defendant Perez engaged in farm labor
contracting activity without holding the required license when she
sent the list of potential visa applicants to Defendant CSI.
The Court finds that the ability to adjudicate the elements of
Plaintiffs' FLCA claims in a class action demonstrates that the
common factual and legal questions predominate.
TVPA
The Plaintiffs have asserted that Growers obtained labor or
services from the 2017 Blueberry Harvester Class through pervasive
threats to send members who asked questions, complained, or did not
meet Growers' production standard back to Mexico. Such threats may
constitute an abuse of the law or legal process sufficient to
support a claim under the TVPA. As the question of whether
Growers' pervasive threats were made in order to exert pressure on
the members of the 2017 Blueberry Harvester Class to take action or
refrain from taking action in violation of 18 U.S.C. Section
1589(a)(3) is susceptible to generalized, class-wide proof, the
Court finds that this question predominates over unique issues that
may pertain to individual class members.
WLAD
In this case, the Plaintiffs have alleged that the Defendants
engaged in a pervasive practice of threatening to send putative
class members back to Mexico if they asked questions, made
work-related complaints, or failed to meet Growers' production
standard. Plaintiffs also allege that Defendant Perez told the
class at a meeting that they were expected to work every day, and
only those on their death beds could remain in their housing when
they were supposed to be working. The alleged threats and comments
made by Defendants were pervasive and substantially identical
between members of the 2017 Blueberry Harvester Class. Moreover,
they uniformly promised negative consequences for members who
attempted to improve working conditions or failed to meet Growers'
expectations. Therefore, establishing each member's prima facie
case of Growers' liability for creating a hostile work environment
would depend on the same evidence of Defendants' behavior.
The Court finds that the common question of whether Growers are
liable under the WLAD for creating a hostile work environment
predominates over unique issues that may pertain to individual
members of the 2017 Blueberry class.
Breach of Contract
A common question exists as to the 2017 Blueberry Harvester Class
regarding whether Growers breached the H-2A contracts by imposing a
previously undisclosed production standard and by providing low
quality food in insufficient quantities to meet class members'
daily needs. A breach of contract is actionable only if the
contract imposes a duty, the duty is breached, and the breach
proximately causes damage to the claimant.
Under Washington law, individual class members' interpretations of
the terms of the H-2A contracts are not determinative on the issue
of Growers' liability for breach of the contracts. Rather, Growers'
liability will depend on (1) whether imposition of a production
standard of two boxes of blueberries an hour and (2) providing
low-quality food in meager quantities violated the parties'
objective manifestations in the H-2A contracts. Thus, the issue of
whether Growers owed duties to putative class members under the
H-2A contracts that were breached by the imposition of a new
production standard and the provision of low-quality food in
insufficient quantities, and thus caused harm to putative class
members, is susceptible to generalized, class-wide proof.
Therefore, the Court finds that the common questions on this issue
predominate over unique issues raised by individual class members.
Wrongful Termination Subclass
Termination for Engaging in Protected Activities
A common question exists as to whether Growers violated Revised
Code of Washington section 49.32.020 when they terminated the
members of the Wrongful Termination Subclass following a one-day
strike. (See supra Section II.B.2.b.i.) To prevail on a claim of
wrongful discharge, a plaintiff must establish that (1) Washington
has a clear public policy (the clarity element) (2) discouraging
the conduct would jeopardize the public policy, the jeopardy
element and (3) that policy-protected conduct caused the dismissal
(the causation element).
Under Washington law, employers are prohibited from interfering
with, restraining, or coercing labor employees engaging in
self-organization or in other concerted activities for the purpose
of collective bargaining or other mutual aid or protections. The
concerted activities must relate to the terms and conditions of
employment or be seeking improved working conditions.
The Defendants also argue that the Court must determine the reason
for the Wrongful Termination Subclass's terminations, and that
individualized inquiries will be required to determine why each
member was terminated. The question of why Defendants terminated
all of the members of the Wrongful Termination Subclass at the same
time on August 5, 2017 is the very question that may be answered on
a class-wide basis. Further, the question of why each subclass
member was terminated may be resolved by the same evidence, as the
subclass members were allegedly provided with identical separation
and termination forms. Therefore, Defendants' arguments do not
demonstrate that the common question identified above does not
predominate over issues raised by individual members of the
subclass.
Thus, the Court finds that the common question of whether Growers
violated Washington employment law when they terminated the
Wrongful Termination Subclass on August 5, 2017 predominates over
unique issues pertaining to individual subclass members.
Superiority
In this case, a class action is superior to other available methods
of adjudicating the claims of the 2017 Blueberry Harvester Class,
2017 Blueberry Harvester Class, Defendant Perez Subclass, and
Wrongful Termination Subclass. Based on the record before the
Court, it does not appear that individual class members have an
interest in controlling their own litigation, as each individual
class or subclass member's claim for damages is unlikely to exceed
the cost of pursuing the claims alleged. It does not appear that
other litigation regarding this action is pending elsewhere.
The parties have not argued that the Western District of Washington
is not an appropriate and convenient forum for the litigation. It
does not appear that there are issues with regard to the
manageability of the class action. Therefore, Plaintiffs have
established that class action litigation is superior to other
methods of adjudicating this action.
Accordingly, the Plaintiffs' motion for class certification is
granted pursuant to Federal Rules of Civil Procedure 23(a) and
23(b)(3).
A full-text copy of the District Court's December 20, 2018 Order is
available at https://tinyurl.com/yb4ytgv5 from Leagle.com.
Barbaro Rosas & Guadalupe Tapia, Plaintiffs, represented by Adam J.
Berger --
berger@sgb-law.com -- SCHROETER GOLDMARK & BENDER, Joachim
Morrison, COLUMBIA LEGAL SERVICES, Andrea L. Schmitt, COLUMBIA
LEGAL SERVICES, Lindsay Halm -- halm@sgb-law.com -- SCHROETER
GOLDMARK & BENDER, Lori Isley, COLUMBIA LEGAL SERVICES & Tony
Gonzalez, COLUMBIA LEGAL SERVICE.
Sarbanand Farms LLC, Munger Bros LLC & Nidia Perez, Defendants,
represented by Christopher E. Hawk -- chawk@grsm.com -- GORDON REES
SCULLY MANSUKHANI & Derek Allan Bishop -- dbishop@grsm.com --
GORDON REES SCULLY MANSUKHANI LLP.
SHASTA COUNTY, CA: $850K Attys' Fees Awarded in Jewett Inmates Suit
-------------------------------------------------------------------
In the case, EVERETT JEWETT, LEGAL SERVICES FOR PRISONERS WITH
CHILDREN, GLEN HAROLD EVERETT, MICHAEL DONALD ACKLEY, HAROLD ROBERT
MARQUETTE, on behalf of themselves and all others similarly
situated, Plaintiffs, v. SHASTA COUNTY SHERIFF'S DEPARTMENT, a
public entity; TOM BOSENKO, as Sheriff of the Shasta County; SHASTA
COUNTY, a public entity; and CALIFORNIA FORENSIC MEDICAL GROUP,
INC. a private entity; and DOES 1 through 25, in their individual
capacities, Defendants, Case No. 2:13-cv-0882 MCE AC (PC) (E.D.
Cal.), Judge Morrison C. England, Jr. of the U.S. District Court
for the Eastern District of California granted the Plaintiffs'
Motion for Award of Reasonable Attorneys' Fees and Expenses.
On Aug. 7, 2018, the Court approved the Class Action Settlement
Agreement finding it to be fair, reasonable and adequate. Pursuant
to the Class Action Settlement Agreement, on April 11, 2018, the
Plaintiffs' filed the instant Motion.
On Dec. 5, 2018, the Parties reached an agreement to fully resolve
the Plaintiffs' Motion for reasonable attorneys' fees and expenses
in the Class Action from the inception of the matter through the
date that the Settlement Agreement's term becomes effective in the
amount of $850,000 with payment due by Jan. 31, 2019;
The Plaintiff's Motion remains submitted without oral argument
before Hon. Magistrate Judge Claire.
Judge England has read and considered the Parties' Joint
Stipulation Resolving the Plaintiffs' Motion; the Plaintiffs'
Motion and all supporting and related documents; and finds an award
of $850,000, to be paid by Jan. 31, 2019, in attorney fees and
costs is reasonable to resolve the Plaintiffs' Motion.
Therefore, the Judge approved the Parties' settlement regarding
attorneys' fees and expenses. The payment in the amount of
$850,000 is due to the Plaintiffs' counsel by Jan. 31, 2019. The
amount is exclusive of fees provided for in the Class Action
Settlement Agreement, including fees for monitoring that was
previously approved by the Court or attorneys' fees and costs as
part of any resolution associated with Mr. Everett Jewett's
individual claims. All members of the Settlement Class are bound
by the Order.
A full-text copy of the Court's Jan 2, 2019 Order is available at
https://is.gd/ZxIDaX from Leagle.com.
Everett Jewett, Plaintiff, represented by Jon Ali Atabek, Atabek &
Associates, Maronel Barajas -- mbarajas_law@yahoo.com -- Disability
Rights Legal Center, Steven P. Ragland -- sragland@keker.com --
Keker, Van Nest & Peters LLP, Ajay Sundar Krishnan --
akrishnan@keker.com -- Keker, Van Nest & Peters LLP, Anna Mercedes
Rivera -- anna.rivera@drlcenter.org -- Disability Rights Legal
Center, Franco E. Muzzio -- fmuzzio@keker.com -- Keker, Van Nest
&Peters LLP, Joseph Taylor Gooch -- tgooch@keker.com -- Keker, Van
Nest & Peters LLP & Mallory L. Sepler-King --
mallory.sepler-king@drlcenter.org -- Disability Rights Legal
Center.
Glen Harold Everett, Michael Donald Ackley, Harold Robert Marquette
& Legal Services for Prisoners with Children, Plaintiffs,
represented by Anna Mercedes Rivera, Disability Rights Legal
Center, Maronel Barajas, Disability Rights Legal Center, Steven P.
Ragland, Keker, Van Nest & Peters LLP, Franco E. Muzzio, Keker, Van
Nest & Peters LLP, Joseph Taylor Gooch, Keker, Van Nest & Peters
LLP & Mallory L. Sepler-King, Disability Rights Legal Center.
California Forensic Medical Group, Inc., Defendant, represented by
Jerome Martin Varanini, Law Offices of Jerome M. Varanini.
Shasta County Sheriff's Department, Sheriff Tom Bosenko & Shasta
County, Defendants, represented by Gary Charles Brickwood --
gb@brickwoodlaw.com -- Brickwood Law Office.
SOUTHWEST CREDIT: Faces Delgado FDCPA Suit in N.D. Illinois
-----------------------------------------------------------
A class action lawsuit has been filed against Southwest Credit
Systems, Inc. The case is captioned as Teresa Delgado, on behalf of
herself and all others similarly situated, the Plaintiff, vs.
Southwest Credit Systems, Inc., the Defendant, Case No.
1:18-cv-08494 (N.D. Ill., Dec. 27, 2018). The case is assigned to
the Hon. Judge Charles P. Kocoras. The suit alleges Fair Debt
Collection Act violation.
Southwest Credit Systems is a debt collection agency located in
Carrollton, Texas.[BN].
Attorneys for Plaintiff:
Celetha Chatman, Esq.
COMMUNITY LAWYERS GROUP, LTD.
20 N. Clark Street, Suite 3100
Chicago, IL 60602
Telephone: (312) 757-1880
E-mail: cchatman@communitylawyersgroup.com
- and -
Michael Jacob Wood, Esq.
COMMUNITY LAWYERS GROUP, LTD.
20 N. Clark Street, Suite 3100
Chicago, IL 60602
Telephone: (312) 757-1880
E-mail: mwood@communitylawyersgroup.com
STONEMOR PARTNERS: Doczi Suit Moved to S.D. West Virginia
---------------------------------------------------------
A case, James Doczi, On behalf of himself and all others similarly
situated, the Plaintiff, vs. StoneMor Partners, L.P., doing
business as: Highland Memory Gardens, the Defendant, Receipt No.:
AWVSDC-7011721, was removed from the Circuit Court of Logan County,
to the U.S. District Court for the Southern District of West
Virginia (Charleston) on Jan 3, 2019. The Southern District of West
Virginia Court Clerk assigned Case No.: 2:19-cv-00012 to the
proceeding. The suit alleges personal property damages. The case is
assigned to the Hon. Judge John T. Copenhaver, Jr.
StoneMor Partners L.P., together with its subsidiaries, owns and
operates cemeteries and funeral homes in the United States.[BN]
Attorneys for Plaintiff:
D. Adrian Hoosier, II, Esq.
LORD HOOSIER
225 Hale Street
Charleston, WV 25301
Telephone: (304) 345-8030
Facsimile: (304) 553-7227
E-mail: adrian@lordhoosier.com
Attorneys for StoneMor Partners, L.P.:
Randal M. Whitlatch, Esq.
DUANE MORRIS
600 Grant Street, Suite 5010
Pittsburgh, PA 15219
Telephone: (412) 497-1029
Facsimile: (412) 497-1001
E-mail: rmwhitlatch@duanemorris.com
STURM FOODS: Court Issues Trial Plan for Suchanek Class Suit
------------------------------------------------------------
In the case, LINDA SUCHANEK, RICHARD MCMANUS, CAROL CARR, PAULA
GLADSTONE, EDNA AVAKIAN, CHARLES CARDILLO, BEN CAPPS, DEBORAH
DIBENEDETTO, AND CAROL RITCHIE, Plaintiffs, v. STURM FOODS, INC.,
and TREEHOUSE FOODS, INC., Defendants, Case No. 11-CV-565-NJR-RJD
(S.D. Ill.), Judge Nancy Rosenstengel of the U.S. District Court
for the Southern District of Illinois
On July 3, 2018, the Court issued an order setting forth a proposed
trial plan for the class action, in which the Plaintiffs bring
claims under consumer fraud statutes of eight different states.
Specifically, the Plaintiffs argue the Defendants used deceptive
packaging to conceal the true nature of their coffee product.
The Court initially envisioned dividing the Plaintiffs into two
groups to account for the two versions of the package. These two
groups would then be divided into several subclasses, including a
single subclass that encompassed Plaintiffs from Alabama,
California, Illinois, New Jersey, and New York.
The Court also determined the Plaintiffs are entitled to a
rebuttable presumption of causation and reliance under the Alabama
Deceptive Trade Practice Act ("ADTPA"), if they show: (1) the
Defendants engaged in deceptive conduct; (2) a reasonable consumer
would rely on the deception; (3) the Plaintiffs purchased the
Defendants' products; and (4) the Defendants widely disseminated
the deceptio.
Similarly, the Court found the Plaintiffs are entitled to a
rebuttable presumption of causation, reliance, and injury under
California's Consumers Legal Remedies Act ("CLRA"). Additionally,
it found the Plaintiff could prove causation and/or reliance on a
class-wide basis under California's Unfair Competition Law ("UCL")
and False Advertising Law ("FAL"), and the consumer fraud statutes
from Illinois ("ICFA"), New Jersey ("NJCFA"), and North Carolina
("NCUTPA"). The parties concurred that individual proof is
necessary to show causation under the Tennessee Consumer Protection
Act ("TCPA"), and South Carolina's Uniform Trade Practices Act
("SCUTPA").
The Defendants responded to the Court's Order, raising the
following concerns. First, the Defendants assert the multi-state
subclass would intermingle evidence from different states and blur
the distinctions between the different statutes. They propose
creating a separate subclass for each state. Second, they seek
clarification on whether they can rebut the presumptions of
causation and/or reliance under the laws of each state. The
Plaintiffs did not respond to the Defendants' submission.
Judge Rosentengel has no issue breaking apart the proposed
multi-state subclass, to avoid the potential issues raised by the
Defendants. Thus, the Plaintiffs will be organized into nine
different subclasses under each version of the package. The nine
subclasses include the Plaintiffs bringing claims under: (i) the
ADTPA (Subclass A); (ii) the CLRA (Subclass B); (iii) the ICFA
(Subclass C); (iv) the NJCFA (Subclass D); (v) N.Y. GBL Sections
349 and 350 (Subclass E); (vi) the TCPA (Subclass F); (vii) the
SCUTPA (Subclass G); (viii) the NCUTPA (Subclass H); and (ix) the
UCL/FAL (Subclass I).
Moreover, consistent with the Rules Enabling Act and the
Defendants' due process rights, the Defendants may introduce
evidence to rebut any presumption of class-wide liability.
Finally, the Judge has Seventh Amendment concerns with the current
trial plan that require restructuring. The Court originally
proposed utilizing two juries, with the second jury to hear
individual questions of ascertainable loss, proximate cause, and
damages for the Plaintiffs from Tennessee and South Carolina. To
avoid the possibility of two juries determining the same or similar
issues, however, the Judge believes one jury should hear the
entirety of the evidence, in a single trial. Following trial, the
Court will make determinations for the California equitable claims
and the NCUTPA claims, based on the jury's verdict.
Judge Rosenstengel invites the parties to respond to the new trial
plan before noon on Jan. 7, 2019.
A full-text copy of the Court's Jan 2, 2019 Memorandum and Order is
available at https://is.gd/yygqs1 from Leagle.com.
Linda Suchanek, Plaintiff, represented by Randy L. Gori --
randy@gorijulianlaw.com -- Gori Julian and Associates P.C.. Linda
Suchanek, Plaintiff, represented by Chelsea Lauren Fischer --
cfischer@gorijulianlaw.com -- Gori Julian and Associates P.C., D.
Todd Mathews -- todd@gorijulianlaw.com -- Gori, Julian &
Associates, PC, David Michael Rosenberg-Wohl -- david@hrw-law.com
-- Hershenson Rosenberg-Wohl,, Megan Myers Arvola, Gori --
mmyers@gorijulianlaw.com -- Julian & Associates, PC & Peter H.
Burke pbourke@burkeharvey.com -- Burke Harvey LLC.
Richard McManus, Plaintiff, represented by D. Todd Mathews, Gori,
Julian & Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl, Joseph Allen Schreiber, Burke Harvey LLC, Peter H.
Burke, Burke Harvey LLC & W. Todd Harvey, Burke Harvey LLC.
Carol Carr, Plaintiff, represented by D. Todd Mathews, Gori, Julian
& Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl, & Peter H. Burke, Burke Harvey LLC.
Paula Gladstone, individually, and on behalf of all others
similarily situated. Consolidated from case 11-1068-GPM, Plaintiff,
represented by D. Todd Mathews, Gori, Julian & Associates, PC,
David Michael Rosenberg-Wohl, Hershenson Rosenberg-Wohl A
Professional Corporation, Michael H. Maizes, Maizes & Maizes LLP &
Peter H. Burke, Burke Harvey LLC.
Edna Avakian, Charles Cardillo, Ben Capps, Deborah Dibenedetto &
Carol J. Ritchie, Plaintiffs, represented by D. Todd Mathews, Gori,
Julian & Associates, PC, David Michael Rosenberg-Wohl, Hershenson
Rosenberg-Wohl A Professional Corporation, Michael H. Maizes,
Maizes & Maizes LLP & Peter H. Burke, Burke Harvey LLC.
Sturm Foods, Inc., Defendant, represented by Aaron J. Weinzierl,
Foley & Lardner, Craig S. Fochler -- cfockler@foley.com -- Foley &
Lardner, Jaclyne D. Wallace -- jwallace@foley.com -- Foley &
Lardner, Patrick G. Walker -- pwalker@farris-law.com -- Farris
Bobango Branan, PLC & Richard Spencer Montei -- rmontei@folwy.com
-- Foley & Lardner.
Treehouse Foods, Inc., Defendant, represented by Aaron J.
Weinzierl, Foley & Lardner, Craig S. Fochler, Foley & Lardner,
Jaclyne D. Wallace, Foley & Lardner & Richard Spencer Montei, Foley
& Lardner.
TARGET CORP: Judge Refuses to Unseal Supplement Settlements
-----------------------------------------------------------
Lauraann Wood, writing for Law360, reports that an Illinois federal
judge on Dec. 18 refused to unseal a trio of consumer class action
settlements with Target Corp. and others over the alleged
mislabeling of diet supplements. [GN]
TECH RABBIT: Removed Zarrabian Case to Central Dist. of California
------------------------------------------------------------------
Tech Rabbit, LLC removed case captioned SAHAND ZARRABIAN,
individually, and on behalf of all others similarly situated, the
Plaintiffs, vs. TECH RABBIT, LLC, a New Jersey limited liability
company; and DOES 1 through 100, inclusive, the Defendants, Case
No. 18STCV01352, from the Superior Court of California, County of
Los Angeles, to the U.S. District Court for the Central District of
California on Dec. 26, 2018. The Central District of California
Court Clerk assigned Case No. 2:18-cv-10648-ODW-JC to the
proceeding.
The state-court pleading asserts causes of action for: (1) Breach
of Implied Contract; (2) Negligence; (3) Violation of California
Business & Professions Code section 17200 (“Unlawful
practices”); (4) Violation of California Business & Professions
Code section 17200 ("Unfair practices"); (5) Violation of
California Business & Professions Code section 17200 ("Deceptive
practices"); (6) Constitutional Invasion of Privacy of the pleading
indicates that this Cause of Action is predicated on the
Constitution of California); (7) Negligence Per Se; (8) Breach of
the Covenant of Duty of Good Faith and Fair Dealing; and (9)
Violation of State Data Breach Acts.[BN]
Attorneys for Tech Rabbit, LLC:
Hamilton E. Arendsen, Esq.
Christian S. Molnar, Esq.
Levi Lesches, Esq.
ARENDSEN CANE MOLNAR LLP
550 West "C" Street, Suite 1150
San Diego, CA 92101
Telephone: (619) 535-3910
E-mail: aarendsen@arendsenlaw.com
cmolnar@arendsenlaw.com
llesches@arendsenlaw.com
TENESSEE GAS: Liberty County Landowners File Class Action
---------------------------------------------------------
The Associated Press reports that two landowners near Houston are
accusing a major interstate gas pipeline of being responsible for
the deaths of 40 trophy deer at a breeding facility.
Liberty County landowners Monty Mullenix and Greg Buford recently
filed a lawsuit alleging that Tennessee Gas Pipeline Co. released
methane and other toxic gases on their properties during emergency
shutdowns along the natural gas pipeline route near Cleveland, the
Houston Chronicle reported.
Buford owns the Grande Whitetails breeding facility near the Sam
Houston National Forest. He claimed his white-tailed deer started
dying shortly after the emergency natural gas releases on his
property.
The deer are each worth tens of thousands of dollars, he said.
In Texas, breeding deer, antelope and exotic game has become a $1
billion industry, with most animals sent to hunting ranches.
Kinder Morgan, the Houston parent company of Tennessee Gas
Pipeline, denied that the emergency releases killed the deer,
instead blaming the deaths on a virus.
"Lab results on the deer tested to date confirmed that those deer
died from epizootic hemorrhagic disease, or EHD, a virus
transmitted by small insects," Kinder Morgan said in a statement.
"The company has worked, and continues to work, with the nearby
landowners to remediate any impacts to their property."
Messrs. Mullenix and Buford are seeking class-action status for the
lawsuit to represent residents in the area.
"While this has been an awful tragedy for the animal population,
what's truly concerning are the potential health risks to people
living in the area," said Micah Dortch, a lawyer representing the
landowners. "We don't know what those risks might be, and Kinder
Morgan isn't saying."
An oily mist had settled on homes, cars and vegetation following
the Nov. 14 and Dec. 10 natural gas releases, according to court
documents. Cleanup crews used detergents to remove the mist.
Kinder Morgan said the residue removed by cleanup crews was tested
and determined to have no short- or long-term impacts on people or
livestock. [GN]
TIBANA FINISHING: Final Approval of Vazquez Suit Settlement Sought
------------------------------------------------------------------
Plaintiff Salome Vazquez and Opt-in Plaintiff Blanca Maza, on
consent of all Parties in the lawsuit entitled SALOME VAZQUEZ, on
behalf of herself, individually, and on behalf of all others
similarly situated v. TIBANA FINISHING, INC., and TIBERJE MIKSA,
individually, and ANA MIKSA, individually, Case No. 17-cv-1907 (PK)
(E.D.N.Y.), move the Court for an order:
1) granting final approval of the Parties' Class and
Collective Action Settlement Agreement and Release;
2) authorizing the distribution of settlement checks to all
Class Members who timely submitted claim forms representing
their share of the Settlement Fund;
3) awarding Service Awards, totaling $20,000, to the
Plaintiffs and providing for the release of all claims by
each as specified in the Settlement Agreement;
4) awarding attorneys' fees in the amount of $106,250 for
legal services performed in prosecuting and settling the
claims in this action to Borrelli & Associates, P.L.L.C. as
"Class Counsel";
5) awarding $7,833 for costs and out-of-pocket expenses to
Class Counsel;
6) approving an award of $7,500 for claims administration fees
to Arden Claims Service, LLC;
7) granting final certification of two settlement classes:
a. under Fed. R. Civ. P. 23(a) and (b)(3), all individuals
who worked as sewing and/or stitching machine operators
for Defendants at any time between April 4, 2011 through
September 13, 2018, and who may be owed unpaid minimum
wage and overtime compensation and statutory damages;
and
b. under 29 U.S.C. Section 216(b), all individuals who
worked as sewing and/or stitching machine operators for
Defendants at any time between April 4, 2014 through
September 13, 2018, and who may be owed unpaid minimum
wage and overtime compensation and statutory damages;
8) providing for the release of all claims as specified in the
Settlement Agreement by all participating Class Members as
defined in the Settlement Agreement and all Class Members
who did not properly and timely opt-out of the settlement;
and
9) dismissing this action against Defendants with prejudice,
but with the Court's continued jurisdiction over the
construction, interpretation, implementation, and
enforcement of the Parties' settlement and over the
administration and distribution of the settlement fund.[CC]
The Plaintiffs are represented by:
Jeffrey R. Maguire, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
655 Third Avenue, Suite 1821
New York, NY 10017
Telephone: (212) 679–5000
Facsimile: (212) 679-5005
E-mail: jrm@employmentlawyernewyork.com
atc@employmentlawyernewyork.com
mjb@employmentlawyernewyork.com
TRANSWORLD SYSTEMS: Class Certification Sought in Fleenor Suit
--------------------------------------------------------------
Robert Fleenor moves the Court to certify the class described in
the complaint of the lawsuit captioned ROBERT FLEENOR, Individually
and on Behalf of All Others Similarly Situated v. TRANSWORLD
SYSTEMS INC., and JHPDE FINANCE I LLC, Case No. 2:19-cv-00032-PP
(E.D. Wisc.), and further asks that the Court both stay the motion
for class certification and to grant the Plaintiff (and the
Defendants) relief from the Local Rules setting automatic briefing
schedules and requiring briefs and supporting material to be filed
with the Motion.
Dicta in the Supreme Court's decision in Campbell-Ewald Co. v.
Gomez, left open the possibility that a defendant facing a class
action complaint could moot a class representative's case by
depositing funds equal to or in excess of the maximum value of the
plaintiff's individual claim with the court and having the court
enter judgment in the plaintiff's favor prior to the filing of a
class certification motion, the Plaintiff asserts, citing
Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016).
To avoid the risk of a defendant mooting a putative class
representative's individual stake in the litigation, the Seventh
Circuit instructed plaintiffs to file a certification motion with
the complaint, along with a motion to stay briefing on the
certification motion. Damasco v. Clearwire Corp., 662 F.3d 891,
896 (7th Cir. 2011), overruled on other grounds, Chapman v. First
Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of
that motion [for class certification] protects a putative class
from attempts to buy off the named plaintiffs.").
While the Seventh Circuit has held that the specific procedure
described in Campbell-Ewald cannot force the individual settlement
of a class representative's claims, the same decision cautions that
other methods may prevent a plaintiff from representing a class,
the Plaintiff tells the Court, citing Fulton Dental, LLC v. Bisco,
Inc., No. 16-3574, 2017 U.S. App. LEXIS 10839 *9-10 (7th Cir. June
20, 2017). The Plaintiff asserts that one defendant has attempted
a similar tactic by sending a certified check to the proposed class
representative. Bonin v. CBS Radio, Inc., No. 16-cv-674-CNC (E.D.
Wis.); see also Severns v. Eastern Account Systems of Connecticut,
Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis.
Feb. 24, 2016).
The Plaintiff is obligated to move for class certification to
protect the interests of the putative class, the Plaintiff
asserts.
As the Motion to certify a class is a placeholder motion as
described in Damasco, the parties and the Court should not be
burdened with unnecessary paperwork and the resulting expense when
short motion to certify and stay should suffice until an amended
motion is filed, the Plaintiff contends.
The Plaintiff also asks to be appointed as class representative,
and for the appointment of Ademi & O'Reilly, LLP, as class
counsel.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
UNITED NATIONS: 2d Cir. Affirms Dismissal of LaVenture Suit
-----------------------------------------------------------
In the case, MARIE LAVENTURE, each individually and on behalf of
the Estate of CHERYLUSSE LAVENTURE, and the Estate of MARIE THERESE
FLEURICIANE DELINAIS, and the additional persons and their
representatives listed on Exhibit 1, and on behalf of all others
similarly situated, MAGGIE LAVENTURE, each individually and on
behalf of the Estate of CHERYLUSSE LAVENTURE, and the Estate of
MARIE THERESE FLEURICIANE DELINAIS, and the additional persons and
their representatives listed on Exhibit 1, and on behalf of all
others similarly situated, SANE LAVENTURE, each individually and on
behalf of the Estate of CHERYLUSSE LAVENTURE, and the Estate of
MARIE THERESE FLEURICIANE DELINAIS, and the additional persons and
their representatives listed on Exhibit 1, and on behalf of all
others similarly situated, CARMEN LAVENTURE, each individually and
on behalf of the Estate of CHERYLUSSE LAVENTURE, and the Estate of
MARIE THERESE FLEURICIANE DELINAIS, and the additional persons and
their representatives listed on Exhibit 1, and on behalf of all
others similarly situated, Plaintiffs-Appellants, v. UNITED
NATIONS; UNITED NATIONS STABILIZATION MISSION IN HAITI, BAN
KI-MOON, former Secretary-General of the United Nations; EDMOND
MULET, former Under-Secretary-General for the United Nations
Stabilization Mission in Haiti, CHANDRA SRIVASTAVA, former Chief
Engineer for the United Nations Mission to Haiti; PAUL AGHADJANIAN,
Chief of Mission Support for the United Nations Mission to Haiti;
PEDRO MEDRANO, Assistant Secretary-General of the United Nations;
MIGUEL DE SERPA, Under Secretary for Legal Affairs,
Defendants-Appellees, Case No. 17-2908-cv (2d Cir.), the U.S. Court
of Appeals for the Second Circuit affirmed the Aug. 24, 2017
judgment of the District Court dismissing the case for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(h)(3).
The Plaintiffs are citizens of the United States or Haiti who have
been or will be injured or who are or will be the personal
representative of a person who was or will be killed by cholera
contracted in Haiti on or after Oct. 9, 2010. They brought the
putative class action against the Defendants the United Nations
("UN"), the UN Stabilization Mission in Haiti ("MINUSTAH"), and
various UN officials, seeking to hold them responsible for
negligently causing the cholera outbreak in Haiti. The Plaintiffs
contend that the District Court erred in dismissing the action
based on the Defendants' immunity from suit.
It is well established that the UN and MINUSTAH have absolute
immunity from suit in domestic courts pursuant to the Convention on
Privileges and Immunities of the United Nations, Feb. 13, 1946,
entered into force with respect to the United States Apr. 29, 1970,
21 U.S.T. 1418, ("CPIUN"). The immunity applies even where the UN
allegedly fails to fulfill its obligations under the CPIUN to make
provisions to settle certain disputes.
The Plaintiffs attempt to circumvent this immunity by arguing that
the UN expressly waived its immunity from suit in domestic courts
for torts arising out of peacekeeping operations. To support this
contention, they rely on two reports from the 1990s that address
the UN's procedures for settling claims arising out of UN
peacekeeping operations. The first report was issued in 1996 and
addresses the procedures for settling third-party claims arising
from UN peacekeeping missions. A related report was issued in 1997
and addresses developing specific measures for implementing the
principles described in Report 51/389. Both reports were adopted
by resolution by the General Assembly of the UN. The Plaintiffs
argue that these reports' repeated use of the term "liability"
constitutes express waiver of immunity from legal process in
domestic courts.
The Court finds it plainly incorrect. It says the reports describe
procedures for redress for third-party claims through standing
claims commissions or internal UN procedures. It is clear that the
reports' descriptions of the UN's "liability" refer only to their
responsibility in these non-judicial forums and do not constitute
an express waiver of immunity from legal process in domestic
courts. Nowhere in either report does the UN expressly waive its
immunity to any form of legal process. The mere use of the word
"liability" in these reports about non-judicial dispute resolution
falls well short of the express waiver required under the CPIUN.
To the contrary, the UN has always maintained and continues to
maintain its immunity from legal process in domestic courts.
The Court concludes that the United Nations enjoys absolute
immunity from the instant suit and that the UN has not expressly
waived its immunity. Moreover, the Plaintiffs' only argument that
MINUSTAH and the individual Defendants are not immune is fully
derivative of their claim that the UN expressly waived immunity.
Because it has rejected that argument, it concludes that MINUSTAH
and the individual Defendants are similarly immune from the suit.
Accordingly, the District Court did not err in dismissing all
claims against all the Defendants for lack of subject matter
jurisdiction based on immunity.
In the alternative, the Plaintiffs argue that the District Court
should have granted them jurisdictional discovery to help establish
that the UN waived its immunity. They contend that internal
discussions within the UN around the time that it accepted
responsibility for the cholera outbreak may shed light on whether
the UN waived its immunity with respect to this event.
The Court finds the argument without merit. Under the CPIUN,
waiver must be express. Internal discussions concerning the extent
or nature of the UN's liability that were never communicated to the
public would not be relevant to determining whether the UN
expressly waived its immunity. The Court holds that the Plaintiffs
identify no other way in which jurisdictional discovery could help
them establish that the UN expressly waived its immunity, and none
is apparent.
In light of this, the Court affirmed.
A full-text copy of the Court's Dec. 28, 2018 Summary Order is
available at https://is.gd/lK0lHJ from Leagle.com.
James F. Haggerty -- jamesfhaggerty@gmail.com -- Law Office of
James F. Haggerty, New York, NY., Paul M. Tarr --
ptarr@lskdnylaw.com -- Lester Schwab Katz & Dwyer, LLP, New York,
NY, Mark A. Gottlieb -- ma.gottlieb@northeastern.edu --
Northeastern University School of Law, Boston, MA, for
Plaintiffs-Appellants.
No appearance, for Defendants-Appellees.
UNITED PARCEL: Settles Religious Discrimination Class Action
------------------------------------------------------------
Tracey Porpora, writing for silive.com, reports that United Parcel
Service, Inc., the world's largest package delivery company, will
pay $4.9 million and provide other relief to settle a class
religious discrimination lawsuit filed by the U.S. Equal Employment
Opportunity Commission (EEOC), the federal agency announced.
UPS prohibits male employees in supervisory or customer contact
positions, including delivery drivers, from wearing beards or
growing their hair below collar length, said the EEOC.
The EEOC alleged that since at least Jan. 1, 2005, UPS failed to
hire or promote individuals whose religious practices conflict with
its appearance policy and failed to provide religious
accommodations to its appearance policy at facilities throughout
the United States.
The EEOC further alleged that UPS segregated employees who
maintained beards or long hair in accordance with their religious
beliefs into non-supervisory, back-of-the-facility positions
without customer contact.
The alleged conduct violates Title VII of the Civil Rights Act of
1964, which prohibits employers from discriminating against
individuals because of their religion and requires employers to
reasonably accommodate an employee's religious beliefs unless doing
so would impose an undue hardship on the employer.
EEOC filed its lawsuit (EEOC v. United Parcel Service, Inc., Civil
Action No. 1:15-cv-04141) on July 15, 2015 in the U.S. District
Court for the Eastern District of New York after first attempting
to reach a pre-litigation settlement through its conciliation
process.
"For far too long, applicants and employees at UPS have been forced
to choose between violating their religious beliefs and advancing
their careers at UPS," said Jeffrey Burstein, regional attorney for
the EEOC's New York District Office. "The EEOC filed this suit to
end that longstanding practice at UPS, and we are extremely pleased
with the result."
The suit was resolved by a five-year consent decree entered by
Judge Margo K. Brodie on Dec 21, 2018. Under the terms of the
decree, UPS will pay $4.9 million to a class of current and former
applicants and employees identified by the EEOC.
UPS issued the following statement:
"UPS is proud of the diversity of its workforce and does not
tolerate discrimination of any kind. While UPS disagrees with
assertions made by the EEOC, the company resolved this lawsuit
because we choose to focus our energy on our hiring and promotion
process, rather than lengthy and costly court proceedings."
"The Decree resolves various claims by the EEOC and other parties,
yet within it clearly states that, 'Nothing in this Decree
constitutes an admission by any party as to the claims and/or
defenses of any other party.' UPS willingly agreed to additional
training and enhancements to our religious accommodation process
because it is wholly consistent with the company's deeply held
diversity, inclusion and fair employment values," the statement
continues.
In addition to the monetary relief, UPS will have to amend its
religious accommodation process for applicants and employees,
provide nationwide training to managers, supervisors, and human
resources personnel, and publicize the availability of religious
accommodations on its internal and external websites, according to
the EEOC.
Kevin Berry, director of the EEOC's New York District Office, said,
"Federal law requires employers to make exceptions to their
appearance policies to allow applicants and employees to observe
religious dress and grooming practices."
Individuals who believe they may have been denied a position at UPS
or otherwise discriminated against by UPS because of a religious
conflict with the appearance policy should contact the EEOC
toll-free at 1-833-727-6581, or by e-mail at
ups-religion.lawsuit@eeoc.gov. [GN]
UNITED STATES: 6th Cir. Vacates Injunctions in Hamama Suit
----------------------------------------------------------
The United States Court of Appeals, Sixth Circuit, issued an
Opinion vacating the District Court's judgment granting the
Plaintiff's Motion for Preliminary Injunction in the appeals cases
captioned USAMA JAMIL HAMAMA, et al., Petitioners-Appellees, v.
REBECCA ADDUCCI, et al., Respondents-Appellants. Nos.
17-2171/18-1233. (6th Cir.).
The Petitioners filed a putative class action habeas petition in
the United States District Court for the Eastern District of
Michigan on behalf of all Iraqi nationals in the United States with
final orders of removal, who have been, or will be, arrested and
detained by ICE as a result of Iraq's recent decision to issue
travel documents to facilitate U.S. removal. The Petitioners also
filed a motion for a temporary restraining order and/or stay of
removal, asking the district court to halt their removal to Iraq
and to hear the Petitioners' arguments of allegedly changed country
conditions.
The district court entered two preliminary injunctions: one to halt
the removal of Iraqi nationals (removal-based claims) and one to
order bond hearings for those Iraqi nationals who continued to be
detained after the district court halted their removals
(detention-based claims).
The government argues that because the Petitioners' removal-based
claims fail to seek relief that is traditionally cognizable in
habeas, the Suspension Clause is not triggered.
The Court agrees.
As the government states, the claims and relief requested here are
fundamentally different from a traditional habeas claim. The
Petitioners' removal-based claims did not challenge any detention
and did not seek release from custody. Rather, they sought a stay
of removal until they had a reasonable period of time to locate
immigration counsel, file a motion to reopen in the appropriate
administrative immigration forum, and have that motion adjudicated
to completion in the administrative system, with time to file a
petition for review and request a stay of removal in a federal
court of appeals. The nature of the relief sought by the habeas
petitioners suggests that habeas is not appropriate in these cases
because the last thing petitioners want is simple release but
instead a court order requiring the United States to shelter them.
And the relief ordered by the district court, a stay of removal,
did not result in the Petitioners' release from custody. Because
the common-law writ could not have granted the Petitioners'
requested relief, the Suspension Clause is not triggered here.
The district court did not have jurisdiction over the Petitioners'
removal-based claims, and the Court therefore vacates the
injunction.
The government and the Petitioners agree that the district court
had jurisdiction over the detention-based claims and that this
jurisdiction is an independent consideration that is not tied to
whether the district court has jurisdiction over the removal-based
claims.
The Court agrees the district court's jurisdiction over the
detention-based claims is independent of its jurisdiction over the
removal-based claims.
Nevertheless, the Court finds that 8 U.S.C. Section 1252(f)(1) bars
the district court from entering class-wide injunctive relief for
the detention-based claims. Section 1252(f)(1) reads:
"(f) Limit on injunctive relief(1) In generalRegardless of the
nature of the action or claim or of the identity of the party or
parties bringing the action, no court (other than the Supreme
Court) shall have jurisdiction or authority to enjoin or restrain
the operation of the provisions of 8 U.S.C. Sections 1221-31, other
than with respect to the application of such provisions to an
individual alien against whom proceedings under such part have been
initiated."
Objection #1: The plain text of the statute does not bar class
actions.
According to the Petitioners, Section 1252(f)'s language bars
injunctions that purport to protect persons not yet in immigration
proceedings. According to Petitioners, Section 1252(f)(1) is a bar
on injunctions but there is a carveout for those aliens who are
already in immigration proceedings. Since everyone in the current
litigation is currently in immigration proceedings, Petitioners
argue that Section 1252(f)(1) is inapplicable to the current class
action litigation.
This argument does violence to the text of the statute. The only
way Petitioners can come to the conclusion they do is by reading
out the word individual before alien in the last sentence of the
statute. In other words, they argue that a class action is not
barred by this statute because all the members of the proposed
subclasses are already in immigration proceedings. But although
Petitioners are correct that the statute provides a carveout for
those already in immigration proceedings, that carveout applies
only to an individual. There is no way to square the concept of a
class action lawsuit with the wording individual in the statute. It
is `a cardinal principle of statutory construction' that `a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void,
or insignificant. The only way to permit a class action or
class-based lawsuit without running awry of Section 1252(f)(1)
would be if the statute, instead of using the phrase an individual
alien, used a phrase such as aliens or any alien.
Objection #2: Section 1252(f)(1) does not apply to habeas.
The Petitioners argue that Congress made no specific reference to
habeas corpus, which therefore remains intact. Petitioners cite St.
Cyr,which says that implications from statutory text or legislative
history are not sufficient to repeal habeas jurisdiction; instead,
Congress must articulate specific and unambiguous statutory
directives to effect a repeal.
But the Petitioners' argument fails because there is nothing in
Section 1252(f)(1) that suspends the writ of habeas corpus. It is
true that habeas is barred as to injunctive relief for class
actions, but there is nothing barring a class from seeking a
traditional writ of habeas corpus (which is distinct from
injunctive relief or an individual from seeking habeas relief,
whether injunctive or otherwise. There was therefore no reason for
Congress to explicitly call attention to habeas jurisdiction in
Section 1252(f)(1).
Argument #3: As to their statutory claims, Petitioners do not seek
to enjoin or restrain the operation of the referenced provisions of
the INA.
The Petitioners claim that the district court was not enjoining or
restraining the statutes, but rather interpreting them to ensure
they are correctly enforced. There are two problems with this
argument. First, Jennings foreclosed any statutory interpretation
that would lead to what Petitioners want. The Jennings Court
chastised the Ninth Circuit for erroneously concluding that
periodic bond hearings are required under the immigration
provisions at issue here, a conclusion the Ninth Circuit came to by
adopting implausible constructions of the immigration provisions at
issue. Similarly, Petitioners' argument here cannot succeed to the
extent that Petitioners are arguing the district court was
interpreting the statute to find a statutory basis for the
injunction.
Second, the claim that the district court was not enjoining or
restraining the statutes is implausible on its face. The district
court, among other things, ordered release of detainees held for
six months or more, unless a bond hearing for any such detainee is
conducted; created out of thin air a requirement for bond hearings
that does not exist in the statute; and adopted new standards that
the government must meet at the bond hearings, shall release unless
the immigration judge finds, by clear and convincing evidence, that
the detainee is either a flight risk or a public safety risk. If
these limitations on what the government can and cannot do under
the removal and detention provisions are not restraints, it is not
at all clear what would qualify as a restraint.
The district court did not have jurisdiction to enter class-wide
injunctive relief on Petitioners' detention-based claims.
The Court, accordingly vacates the preliminary injunctions for both
the removal-based and the detention-based claims, and remands with
directions to dismiss the removal-based claims for lack of
jurisdiction, and for further proceedings consistent with this
opinion.
A full-text copy of the Sixth Circuit's December 20, 2018 Opinion
is available at https://tinyurl.com/y7no5agc from Leagle.com.
ARGUED: Scott G. Stewart, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants.
Lee Gelernt, AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS'
RIGHTS PROJECT, New York, New York, Margo Schlanger, Ann Arbor,
Michigan, for Appellees.
ON BRIEF: Scott G. Stewart, Michael A. Celone, William C. Silvis,
Sarah Stevens Wilson, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants.
Lee Gelernt -- lgelernt@aclu.org -- Judy Rabinovitz --
jrabinovitz@aclu.org -- AMERICAN CIVIL LIBERTIES UNION FOUNDATION
IMMIGRANTS' RIGHTS PROJECT, Margo Schlanger, Samuel R. Bagenstos --
sambagen@umich.edu -- Michael J. Steinberg --
msteinberg@aclumich.org -- Miriam J. Aukerman --
maukerman@aclumich.org -- AMERICAN CIVIL LIBERTIES UNION FUND OF
MICHIGAN, Detroit, Michigan, Nadine Yousif --
nadinekalasho@gmail.com -- Nora Youkhana -- norayoukhana@gmail.com
-- CODE LEGAL AID INC., Kimberly L. Scott --
scott@millercanfield.com -- Wendolyn Wrosch Richards --
richards@millercanfield.com -- MILLER, CANFIELD, PADDOCK & STONE,
PLC, William W. Swor, WILLIAM W. SWOR & ASSOCIATES, for Appellees.
UNITED STATES: Can't Execute ICE Cambodian Immigrant Raids
----------------------------------------------------------
Martin Macias Jr., writing for Courthouse News Service, reported
that the Trump administration is prohibited from executing planned
immigration raids this month targeting up to 100 Cambodian
refugees, many of whom have deportation orders but are protected
from being re-detained without due process, a federal judge ordered
on Jan. 3.
In October 2017, Immigration and Customs Enforcement launched a
series of nationwide raids that swept up individuals of Cambodian
descent, many of whom were born in camps housing refugees escaping
the Khmer Rouge, a brutal regime whose genocide killed over 2
million Cambodians between 1975 and 1979.
Many of those detained were lawful permanent residents with
criminal records who had received deportation orders.
In addition to the raids, ICE also detained Cambodians when they
showed up for regular check-ins with the agency.
Of the individuals who were later released, many could not be
deported due to Cambodia refusing to accept them.
The refugees filed a nationwide class action lawsuit on Oct. 27,
2017 to stop any further detentions and to prevent their due
process rights under the U.S. Constitution from being violated.
U.S. District Judge Cormac Carney approved class protection in
August to Cambodians refugees who hadn't committed any crimes since
receiving deportation orders and were subsequently released from
ICE custody.
But ICE continued to re-detain class members, including through two
raids conducted after plaintiffs' lawsuit was filed, according to
court papers.
Approximately 80 Cambodians, many of them class members, were
detained in 2018 and interviewed for travel documents, plaintiffs'
attorneys said in court briefs.
Chhay Kim, a Cambodian immigrant, was detained even though he had
reported to agency check-ins consistently for 18 years, court
papers said. His wife was months away from giving birth to their
fifth child when he was detained.
An attorney for a separate Cambodian individual received a notice
on Dec. 17 that the U.S. government had invited Cambodian officials
to conduct interviews of 100 Cambodian nationals from Jan. 28, 2019
to Feb. 8, 2019.
Interviews done in large quantities have typically been preceded by
ICE raids, plaintiffs' attorneys said in court papers.
Class members at first sought assurances that the government would
provide written notice before a raid, but Justice Department
attorneys said they would not do so without a court order.
When plaintiffs' attorneys said they would seek emergency relief in
court, the government asked for a delay in light of the federal
government shutdown.
Plaintiffs agreed to delay their filing once assurances were made
that no raids would be conducted.
On Jan. 3, absent any assurances that no raids would occur, Carney
granted the refugees' ex parte request for a temporary restraining
order.
"Given the Government's failure to provide the Court adequate
assurances that Petitioners will be afforded sufficient
pre-detention notice before the Court issues its ruling, the Court
finds that a temporary restraining order is necessary," Carney
wrote in the order.
Judge Carney also ordered the government to provide written notice
to a class member at least 14 days before detention and show cause
why he shouldn't issue a preliminary injunction.
Justice Department attorneys did not immediately respond to a
request for comment on Jan. 3.
They'd failed to file an opposition to the temporary restraining
order request by the court's deadline and instead sought to delay
the case until the government shutdown had ended and appropriations
resumed.
Judge Carney wrote that government attorneys must respond to his
order by Jan. 10.
A hearing on the order to show cause is scheduled for Jan. 28 in
federal court in Los Angeles.
Jenny Zhao, an attorney with Asian Americans Advancing Justice,
said in a statement that the judge "has recognized that ICE's
campaign to arrest Cambodian refugees by ambush is likely
illegal."
"At the very least, people are entitled to some warning and an
opportunity to look at their legal options and say goodbye to their
families," she said. "The order provides some relief for a
community that has been re-traumatized by ICE's tactics."
A copy of the Order Granting Petitioners' Application for a
Temporary Restraining Order is available at:
https://is.gd/ZoCaLk
The case is Chhoeun, et al. v. Marin, et al., Case No. 17-cv-01898
(C.D. Cal.)
UNITED STATES: Judgment in Catahoula Basin Landowners' Suit Upheld
------------------------------------------------------------------
In the case, STEVE CROOKS AND ERA LEA CROOKS, v. STATE OF LA.,
DEPARTMENT OF NATURAL RESOURCES, Case No. 17-750 (La. App.), Judge
D. Kent Savoie of the Court of Appeal of Louisiana for the Third
Circuit affirmed in part and reversed in part the trial court's
rendered judgment in favor of the Plaintiffs, awarding compensation
and attorney's fees.
In 1962, the United States began constructing various structures in
and around the Catahoula Basin pursuant to a
congressionally-authorized navigation project under the River and
Harbor Act of 19602 to promote navigation on the Ouachita and Black
Rivers. In association with the project, the State of Louisiana
and the United States signed an "Act of Assurances."
In connection with the project, the Catahoula Lake Water Level
Management Agreement was also developed and signed by the United
States Army Corps of Engineers; the Bureau of Sport Fisheries and
Wildlife, Fish and Wildlife Service, United States Department of
the Interior; and the Louisiana Wildlife and Fisheries Commission.
The agencies confected the agreement to ensure that proper water
level management would protect the wildlife and public recreational
opportunities in the Catahoula Basin, including an area known as
Catahoula Lake.
Upon completion of the project in 1972, the record indicates that
the United States Fish and Wildlife Service began managing water
levels in and around the Catahoula Basin in accordance with a
seasonal schedule outlined in the agreement. Further, the record
indicates that the State exercises jurisdiction of the Louisiana
Department of Wildlife and Fisheries and has granted mineral leases
in the area known as Catahoula Lake.
On May 4, 2006, Steve Crooks and Era Lea Crooks filed a "Class
Action Petition To Fix Boundary, For Damages And For Declaration
Judgment." They alleged to be representatives of a class of
landowners in the Catahoula Basin whose property is affected by the
increased water levels from the project. The trial court
ultimately certified the Plaintiffs as one class. However, the
trial court ascertained that the resolution of some members' claims
would require determining ownership of certain lands. Accordingly,
the trial court subdivided the Plaintiff class into two distinct
groups depending upon the locations of their properties. The trial
court referred to the groups as the "Lake Plaintiffs" and the
"Swamp Plaintiffs."
The Lake Plaintiffs are seeking to have all lands between the
ordinary low and ordinary high water mark of the Little River
within the area known as Catahoula Lake to be declared owned by the
class in accordance with Louisiana's laws of riparian ownership.
The Lake Plaintiffs have asserted additional claims seeking: a
declaration that their lands have been unlawfully expropriated,
without compensation, due to the significant obstructions to the
natural drainage in and around the Catahoula Basin caused by the
project; damages for the unlawful taking of their land because of
this inverse condemnation; and to recover the mineral royalty and
other payments derived from oil, gas, and mineral activities and
productions received by the State of Louisiana from the immovable
property that is the subject of these proceedings.
Separate and independent from them, the Swamp Plaintiffs consists
of the owners of overflow lands located in the southwestern portion
of the Catahoula Basin. Much of the land bordering and lying
outside Catahoula Lake was selected and approved as swampland and
transferred to the state by the United States Government under the
Swampland Acts of 1849 and 1850. It is not disputed that these
lands are below an elevation of 36 feet mean sea level, and that
their titles originated from patents issued by the State. Because
of the State's acknowledgment that these Plaintiffs' ownership is
not disputed, the only remaining issues with respect to these
owners is whether the overflow lands have been unlawfully
expropriated and, if so, the amount of damages necessary to
compensate these Plaintiffs for the unlawful taking of their land
without compensation.
The Lake Plaintiffs argued that, though referred to as a lake, the
area known as Catahoula Lake actually constitutes the banks of a
body of water in the Catahoula Basin called Little River and thus
is owned by the Lake Plaintiffs in accordance with Louisiana's laws
of riparian ownership. They asserted that, prior to construction
of the project and management of the water levels in the Catahoula
Basin, Little River crossed the Catahoula Basin and seasonally
overflowed its banks. They argued that, during overflow periods,
Little River expanded across the entire Catahoula Basin and was
mistakenly called Catahoula Lake. Thus, the Lake Plaintiffs sought
to be declared owners of the area between the ordinary low water
mark and the ordinary high water mark of Little River.
In response, the State filed a motion for partial summary judgment.
In the motion, the State asserted that the third circuit made a
legal determination in Sanders v. State, Dep't of Natural Res.,
07-821 (La.App. 3 Cir. 12/19/07), that the area known as Catahoula
Lake is, as a matter of law, a navigable lake as defined in the
Louisiana Civil Code. Accordingly, it asserted that the area known
as Catahoula Lake is owned, as a matter of law, by the State, not
the Plaintiffs.
The trial court granted the State's motion, and the Plaintiffs
appealed. On appeal, a panel of the Court reversed the grant of
summary judgment, noting that the fundamental question of whether
the area known as Catahoula Lake is a lake or a river was not an
adjudicated issue in Sanders.
Accordingly, the parties continued to litigate how to classify the
area known as Catahoula Lake. The parties focused on the status of
the area as of April 30, 1812, the year Louisiana entered the
Union. The Plaintiffs argued that, in 1812, the area known as
Catahoula Lake was merely the seasonal overflow of Little River.
In contrast, the State argued that, in 1812, the area known as
Catahoula Lake was a distinct lake bed that experienced seasonal
variations in water level.
Ultimately, the trial court found in favor of the Plaintiffs. It
declared the Lake Plaintiffs to be the owners of the area known as
Catahoula Lake according to Louisiana's laws of riparian ownership.
In turn, it further held that the Lake Plaintiffs are entitled to
the royalties received by the State for oil, gas, and mineral
activities that took place in the area known as Catahoula Lake
between May 2003 and the date of trial.
Thereafter, the trial court also awarded attorney fees totaling
$22,075,843.77. Additionally, it awarded to the Plaintiffs
$353,297.34 for the reimbursement of their expert witness fees;
$89,067.45 for the reimbursement of other miscellaneous costs
incurred; and $168,000 as a provisional amount for the
administration of the claims process post-trial. The trial court
further awarded $10,000 as a class representative incentive award
to Mr. Crooks.
The State appeals, asserting that the district court erred (i) in
determining that Catahoula Lake is not a lake; (ii) in finding that
the Appellees have the right to assert a takings claim against the
State; (iii) in finding that prescription on the Appellees' takings
claims did not begin to run in 1973 when they became aware of the
permanent flooding of their respective properties; and (iv) in its
measure of damages and attorney's fees. On appeal, it has also
filed exceptions of lack of subject matter jurisdiction, no right
of action, nonjoinder, and acquisitive prescription.
After a complete review of the record and the trial court's written
reasons for judgment, Judge Savoie cannot say that the trial court
was manifestly erroneous in finding that, in 1812, the area in
contention was "a permanent river that seasonally overflowed and
covered its banks.
Having found that the Act of Assurances is a stipulation pour
autrui and that the Plaintiffs have a direct right of action
against the State for the actions of the United States, the Judge
finds that the United States is not a necessary party to the
action. Hence, the State's exception of nonjoinder is denied.
Next, he finds that the prescription has not run on the Plaintiffs'
claims for compensation and injunctive relief. The Judge agrees
with the Court's decision in Cooper that La.R.S. 13:5111 does not
apply because the United States damaged the land. He further finds
that the application of tort doctrine is appropriate. He also
finds that each interference with the servitude of drainage
constituted a continuing tort.
The Judge also agrees with the trial court that Eagle Pipe is
distinguishable from this case and does not apply. The damages
claimed by the Plaintiffs were not only sustained prior to their
purchase, rather the wrongful conduct and subsequent damages have
continued to occur during the Plaintiffs' ownership of the property
at issue. As such, he says the Plaintiffs in the matter have a
right of action to assert a claim against the State. The State's
Exception of No Right of Action is denied.
Finally, he finds no abuse of discretion in the court's
determination of an award of damages.
For the foregoing reasons, Judge Savoie affirmed in part, vacated
in part, and rendered the judgment of the trial court. The trial
court's judgment awarding attorney's fees, costs, and fees under
La.R.S. 13:5111 is vacated. He ordered that (i) an award of
attorney's fees in the amount of $22,075,843.80 be assessed against
the common fund, pursuant to La.Code Civ.P. art. 595; (ii) an award
of expert witness fees in the amount of $353,297.34 be rendered
against the State; and (iii) an award of miscellaneous costs in the
amount of $89,067.45 be rendered against the State.
The Judge further ordered that a provisional amount for the
administration of the claims process post-trial in the amount of
168,000 be assessed against the common fund, pursuant to La.Code
Civ.P. art. 595. Steve Crooks receive an incentive award as the
class representative in the amount of $10,000, assessed against the
common fund, pursuant to La.Code Civ.P. art. 595.
The Judge affirmed the trial court's judgment in all other
respects. He denied the State's exceptions of lack of subject
matter jurisdiction, no right of action, nonjoinder, and
acquisitive prescription filed on appeal.
A full-text copy of the Court's Dec. 28, 2018 Order is available at
https://is.gd/dqi6it from Leagle.com.
Ronald J. Fiorenza -- rfiorenza@provosty.com -- Joseph J. Bailey --
jbailey@provosty.com -- Provosty, Sadler, deLaunay, Fiorenza &
Sobel, Post Office Box 1791, Alexandria, LA 71309-1791, (318)
445-3631, COUNSEL FOR DEFENDANT/APPELLANT: State of Louisiana,
Department of Natural Resources.
Sean T. Porter, General Counsel, Division of Administration, Post
Office Box 94095, Baton Rouge, LA 70804-9095, (225) 342-7154,
COUNSEL FOR DEFENDANT/APPELLANT: State of Louisiana, Department of
Natural Resources.
Michelle M. White, Assistant Attorney General, Post Office Box
94005, Baton Rouge, LA 70804-9005, (225) 326-6000, COUNSEL FOR
DEFENDANT/APPELLANT: State of Louisiana, Department of Natural
Resources.
Scott Johnson, Steven B. "Beaux" Jones, Harry J. Vorhoff, Ryan M.
Seidemann, Assistant Attorneys General, 1885 North Third Street,
Baton Rouge, LA 70802, (225) 326-6085, COUNSEL FOR
DEFENDANT/APPELLANT: State of Louisiana, Department of Natural
Resources.
V. Russell Purvis, Jr., Smith, Taliaferro & Purvis, Post Office Box
298, Jonesville, LA 71343, (318) 339-8526, COUNSEL FOR
PLAINTIFFS/APPELLEES: Steve Crooks, Era Lea Crooks.
J. Rock Palermo, III, Veron, Bice, Palermo & Wilson, LLC, Post
Office Box 2125, Lake Charles, LA 70602-2125, (337) 310-1600,
COUNSEL FOR PLAINTIFFS/APPELLEES: Steve Crooks, Era Lea Crooks.
Christopher J. Piasecki, Davidson, Meaux, Sonnier, McElligott,
Fontenot, Gideon & Edwards, Post Office Box 2908, Lafayette, LA
70502-2908, (337) 237-1660, COUNSEL FOR PLAINTIFFS/APPELLEES: Steve
Crooks, Era Lea Crooks.
Yolanda G. Martin, Daniel D. Henry, Jr., Nicholas T. "Cole"
Garrett, Louisiana Department of Wildlife & Fisheries, Post Office
Box 98000, Baton Rouge, LA 70898-9000, (225) 765-2369, COUNSEL FOR
AMICUS CURIAE: Louisiana Wildlife and Fisheries Commission,
Louisiana Department of Wildlife and Fisheries.
Mark A. Begnaud, McCoy, Roberts & Begnaud, LTD., Post Office Box
1369, Natchitoches, LA 71458, (318) 352-6495, COUNSEL FOR AMICUS
CURIAE: Red River Waterway District.
Mark D. Seghers -- jap@seghersperezlaw.com -- Seghers & Perez, LLC,
2955 Ridgelake Drive, Suite 108, Metairie, LA 70002, (504)
810-5671, COUNSEL FOR AMICUS CURIAE: Backcountry Hunters &
Anglers.
UNITED STATES: OA Moves to Certify Class of Alien Asylum-Seekers
----------------------------------------------------------------
The Plaintiffs in the consolidated lawsuits entitled O.A., et al.,
on behalf of themselves and all others similarly situated v. DONALD
J. TRUMP, et al., Case No. 1:18-cv-02718-RDM (D.D.C.), and
S.M.S.R., et al. v. Donald J. Trump, et al., Case No.
18-cv-2838-RDM (D.D.C.), seek certification of a class defined as:
All noncitizen asylum-seekers who have entered or will enter
the United States through the southern border but outside
ports of entry after November 9, 2018.
The Plaintiffs also ask the Court to:
(1) appoint them as class representatives, and to appoint
their attorneys as attorneys for the proposed class;
(2) order summary judgment in their favor and against the
Defendants on Counts I, II, III, V, and VIII of their
Amended Complaint; and
(3) issue a declaratory judgment that the Asylum Rule is
unlawful.
According to the Plaintiffs, by denying migrants
statutorily-guaranteed asylum eligibility and dispensing with
mandatory rulemaking procedures, the interim final rule challenged
in this case, Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection Claims, 83
Fed. Reg. 55,934 (Nov. 9, 2018) (the "Asylum Rule"), flatly
contravenes the Immigration and Nationality Act; the Trafficking
Victims Protection Reauthorization Act of 2005; and the
Administrative Procedure Act.[CC]
Plaintiffs O.A., et al., are represented by:
Thomas G. Hentoff, Esq.
Ana C. Reyes, Esq.
Ellen E. Oberwetter, Esq.
Mary Beth Hickcox-Howard, Esq.
Charles L. McCloud, Esq.
Matthew D. Heins, Esq.
Vanessa O. Omoroghomwan, Esq.
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
E-mail: thentoff@wc.com
areyes@wc.com
eoberwetter@wc.com
mhickcox-howard@wc.com
lmccloud@wc.com
mheins@wc.com
vomoroghomwan@wc.com
- and -
Hardy Vieux, Esq.
HUMAN RIGHTS FIRST
805 15th Street, N.W., Suite 900
Washington, DC 20005
Telephone: (202) 547-5692
Facsimile: (202) 553-5999
E-mail: Vieuxh@humanrightsfirst.org
- and -
Eleni Rebecca Bakst, Esq.
Anwen Hughes, Esq.
HUMAN RIGHTS FIRST
75 Broad Street, 31st Floor
New York, NY 10004
Telephone: (212) 845-5200
Facsimile: (212) 845-5299
E-mail: bakste@humanrightsfirst.org
hughesa@humanrightsfirst.org
- and -
Charles George Roth, Esq.
Keren Hart Zwick, Esq.
Gianna Borroto, Esq.
Ruben Loyo, Esq.
NATIONAL IMMIGRANT JUSTICE CENTER
208 S. LaSalle Street, Suite 1300
Chicago, IL 60604
Telephone: (312) 660-1370
Facsimile: (312) 660-1505
E-mail: croth@heartlandalliance.org
kzwick@heartlandalliance.org
gborroto@heartlandalliance.org
rloyo@heartlandalliance.org
Plaintiff Refugee and Immigrant Center for Education and Legal
Services, Inc., is represented by:
Manoj Govindaiah, Esq.
RAICES, INC.
1305 N. Flores Street
San Antonio, TX 78212
Telephone: (210) 222-0964
Facsimile: (210) 212-4856
E-mail: manoj.govindaiah@raicestexas.org
Plaintiff Capital Area Immigrants' Rights Coalition is represented
by:
Adina Appelbaum, Esq.
CAPITAL AREA IMMIGRANTS' RIGHTS COALITION
1612 K Street NW, Suite 204
Washington, DC 20006
Telephone: (202) 899-1412
Facsimile: (202) 331-3341
E-mail: adina@caircoalition.com
Plaintiffs S.M.S.R., et al., are represented by:
Neal K. Katyal, Esq.
T. Clark Weymouth, Esq.
Craig A. Hoover, Esq.
Justin W. Bernick, Esq.
Zachary W. H. Best, Esq.
Mitchell P. Reich, Esq.
Elizabeth Hagerty, Esq.
Kaitlin Welborn, Esq.
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: (202) 637-5600
Facsimile: (202) 637-5910
E-mail: neal.katyal@hoganlovells.com
t.weymouth@hoganlovells.com
craig.hoover@hoganlovells.com
justin.bernick@hoganlovells.com
zachary.best@hoganlovells.com
mitchell.reich@hoganlovells.com
elizabeth.hagerty@hoganlovells.com
kaitlin.welborn@hoganlovells.com
- and -
Thomas P. Schmidt, Esq.
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: (212) 918-5547
Facsimile: (212) 918-3100
E-mail: thomas.schmidt@hoganlovells.com
UNIVERSITY OF NEW MEXICO: Dismissal of Cummings Suit Reversed
-------------------------------------------------------------
In the case, MARIA CUMMINGS, Individually and as Personal
Representative of the ESTATE OF SHAUN MICHAEL CHAVEZ; JANA
VALLEJOS, Individually and as Personal Representative of the ESTATE
OF DONOVAN VALLEJOS; and LEON SALAZAR, Individually, on behalf of
themselves and all others similarly situated,
Plaintiffs-Appellants, v. BOARD OF REGENTS OF THE UNIVERSITY OF NEW
MEXICO, a body corporate of the State of New Mexico, for itself and
its public operations, including UNIVERSITY OF NEW MEXICO HEALTH
SCIENCES CENTER, and its components, THE UNIVERSITY OF NEW MEXICO
HOSPITAL, and UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE,
Defendants-Appellees, Case No. A-1-CA-35800 (N.M. App.), Judge
Michael E. Vigil of the Court of Appeals of New Mexico reversed the
district court's order dismissing the Plaintiffs' claims and
entering judgment in favor of UNMH.
The Plaintiffs, Ms. Cummings, individually and as personal
representative of the estate of her son Shaun Michael Chavez,
brought a class action complaint for medical and other negligence
against the Defendants resulting from treatment provided to
pediatric cancer patients at UNMH. They appeal from an order of
the district court dismissing their claims on grounds that UNMH did
not receive notice of the Plaintiffs' claims as required by the
Tort Claims Act ("TCA").
In 1987, after a review of UNMH's pediatric cancer program
conducted by physicians from the Dana-Farber Cancer Institute and
Harvard Medical School, UNMH received a letter stating that UNMH
was not employing standard protocols in treating its pediatric
cancer patients. On March 3, 1997, Dr. Jami Frost, a physician in
the pediatric cancer program at UNMH, wrote a letter to the Chair
of the Department of Pediatrics, Dr. John Johnson, expressing
concern about UNMH's treatment of pediatric cancer patients.
On May 13, 1997, Dr. Frost followed up with a memorandum addressed
to Dr. Johnson and other UNMH administrators, including the Dean of
the University of New Mexico Medical School, Paul Roth, discussing
the findings of her investigation into the treatment of pediatric
cancer patients at UNMH between approximately 1980-1997.
In response to Dr. Frost's letter and memorandum, UNMH began an
internal investigation into the treatment of pediatric cancer
patients by Dr. Marilyn Duncan, M.D. for acute lymphoblastic
leukemia ("ALL)". On April 9, 1998, UNMH notified at least two of
its patient health insurance carriers that Dr. Duncan had been
placed on extended leave and was no longer seeing patients while
UNMH conducted an investigation into her treatment of pediatric
cancer patients. Dr. Cristina Beato, the Assistant or Associate
Dean of UNMH, stated that as part of UNMH's investigation, she
instructed employees of UNMH to call certain patients treated for
ALL by Dr. Duncan, as well as families of patients so treated, and
inform them that they or their children may not have received the
recommended treatment for their ALL. Ms. Cummings was not
contacted.
On Feb. 27, 2001, the estate of Steven Lawrence Lovato filed a
class action complaint against UNMH, grounded on the alleged
negligence of Dr. Duncan in her evaluation, care, and treatment of
pediatric cancer patients at UNMH. On June 1, 2001, a second class
action complaint was filed by the estate of Christopher Joseph
Sedillo against UNMH, grounded on the same alleged negligence of
Dr. Duncan.
Shaun was born on Jan. 1, 1978. He was diagnosed with ALL when he
was 18 months old, and was treated at UNMH by Dr. Duncan. In 1980,
Shaun moved with his family to Cleveland, Ohio for about six months
while Shaun's ALL was in remission, and then returned to New
Mexico, where he relapsed. Shaun continued treatment at UNMH,
where he was placed on a LSA2L2 chemotherapy regimen in December
1981. Shaun passed away on Sept. 29, 1983, from complications of
ALL.
In early January 2001, Ms. Cummings retained counsel to represent
her in a potential case against UNMH relating to Shaun's care and
treatment. When she met with the counsel, Ms. Cummings did not
know what treatment protocols Shaun had received at UNMH. At no
time, while Shaun was being treated at UNMH, or after he passed
away, did UNMH notify Ms. Cummings that it had not followed
nationally recognized, proper treatment protocols when treating
Shaun for ALL.
On Feb. 22, 2001, the counsel requested a complete copy of Shawn's
medical records from UNMH. When the medical records were produced,
they revealed that Shaun was treated with a LSA2L2 protocol which,
Ms. Cummings declared in an affidavit, was the subject of a class
action case brought against UNMH by the Sedillo family, and was the
first time she learned that Shaun did not receive the proper ALL
treatment at UNMH.
Shortly after receiving Shaun's medical records, Ms. Cummings
signed an affidavit under the caption of the Sedillo class action
on July 24, 2001, which was filed in the Lovato class action on
July 26, 2001. The affidavit was filed in support of a motion to
consolidate the Sedillo class action into the Lovato class action.
On Dec. 3, 2001, the Lovato class action plaintiffs filed a motion
to allow the Plaintiffs to be joined as plaintiffs and additional
class representatives. The moving papers assert that the named
plaintiff in the Lovato class action and Shaun were both pediatric
leukemia patients of Dr. Duncan and members of the putative class.
The motion was granted. For reasons not pertinent to the appeal,
the Lovato plaintiffs were later dismissed from the Lovato class
action, and the caption was amended to reflect that the Plaintiffs
were henceforth the plaintiffs in the Lovato class action. The
operative complaint in the appeal is the third amended Lovato class
action complaint in which the Plaintiffs are named as plaintiffs
and class representatives.
UNMH subsequently filed a motion to dismiss the Plaintiffs'
complaint, alleging that the Plaintiffs failed to provide notice of
their claims as required by the TCA. After Plaintiffs responded,
the district court granted the motion to dismiss on the basis that
the Plaintiffs are unable to establish that UNMH was ever given
timely notice by Plaintiff Cummings, on her own behalf or on behalf
of Shaun Cummings, that there was a likelihood of litigation
stemming from the pediatric oncology facility's conduct.
The Plaintiffs filed a motion to reconsider, which the district
court denied. In denying the motion to reconsider, the district
court explained its reasoning was that regardless of when the time
period for purposes of TCA notice began to run, the Plaintiffs
failed to establish that UNMH was ever provided appropriate
notice.
Initially, the Court observes that the district court used an
incorrect standard in granting UNMH's motion to dismiss. The
burden was not on the Plaintiffs to prove proper notice under the
TCA—it was UNMH's burden to prove inadequate notice. The
Plaintiffs appeal.
Judge Vigil concludes that UNMH was given written notice of the
time, place and circumstances of the alleged loss or injury
suffered by the Plaintiffs as required by Section 41-4-16(A) of the
TCA. He notes that UNMH does not argue that delivery of the notice
affidavit to UNMH's attorneys fails to satisfy the TCA under the
circumstances. Moreover, there is no material distinction between
giving notice through an affidavit attached to a pleading and
sending a letter with the same affidavit attached. The only
remaining question is whether the notice was timely, and he now
turns his attention to that question.
He concludes that UNMH received timely notice. The undisputed
facts show that Shaun's death on Sept. 29, 1983, followed his
receipt of a LSA2L2 chemotherapy regimen. Ms. Cummings did not
discover the facts relevant to her claim against UNMH until she
retained counsel to investigate her potential wrongful death claim
against UNMH arising from the hospital's treatment of Shaun and
received Shaun's full medical records, which occurred, at the very
earliest, on the same day Ms. Cummings' counsel requested Shaun's
full medical records from UNMH on Feb. 22, 2001. This conclusion
is supported by the affidavit filed by Ms. Cummings in response to
UNMH's motion to dismiss, in which she stated that at no time
during Shaun's treatment did UNMH inform her that it did not follow
nationally recognized standard protocols for treatment of ALL; at
no time between when Shaun passed away in September, 1983 to the
present has UNMH notified her that it failed to follow nationally
recognized protocols for ALL in treating Shaun; and that no one
from UNM ever called, wrote, or otherwise contacted her about
Shaun's treatment at UNMH. Five months and five days passed
between Feb. 22, 2001, and the date on which Cummings filed the
notice affidavit—on July 26, 2001. Therefore, by the time the
six-month period for giving UNMH notice under the TCA expired on
Aug. 22, 2001, the hospital had already received notice of the
Plaintiffs' claims.
For these reasons, Judge Vigil reversed the order dismissing the
Plaintiffs' claims and entering judgment in favor of UNMH on
grounds that notice of the Plaintiffs' was not provided to UNMH as
required by the TCA.
A full-text copy of the Court's Dec. 28, 2018 Opinion is available
at https://is.gd/pPDFnl from Leagle.com.
Vigil Law Firm, P.A., Jacob G. Vigil, Albuquerque, NM, Freedman
Boyd Hollander Goldberg Urias & Ward, P.A., Joseph Goldberg, Frank
T. Davis, Albuquerque, NM, for Appellants.
Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco --
ericco@rodey -- Leslie McCarthy Apodaca -- lapodaca@rodey.com --
Andrew G. Schultz -- aschultz@rodey.com -- Nelson Franse,
Albuquerque, NM, Walz & Associates, Jerry Walz, Albuquerque, NM,
for Appellees.
UNIVERSITY OF OTTAWA: Vincent Nadon Patients File Class Action
--------------------------------------------------------------
Jacquie Miller, writing for Ottawa Citizen, reports that the young
woman received two emails from the University of Ottawa Health
Services clinic last winter and spring, saying her doctor was
absent due to "unforeseen circumstances," and then advising that he
would not be returning.
"I was angry," the woman said. What the messages failed to mention
was that Dr. Vincent Nadon had been banned from practising at
Health Services clinics after being charged with sexual assault and
voyeurism.
The woman was painfully aware of that because she was one of his
victims. She had read a media report about the charges against
Nadon and came forward to tell police how he had groped her during
a doctor's visit.
"For me, (the clinic's email) was like a fake email. I was like,
'Thanks, so you are not telling me what is going on,'" said the
woman, whose name is shielded by a court publication ban. "For the
persons involved in the process, you feel like you are invisible."
The woman is one of two patients who told this newspaper they wish
the University of Ottawa Health Services and the school itself had
done more to help Nadon's victims by providing prompt information
about the charges against him and offering counselling and
support.
"It's not their job to investigate, I know," said the woman. "But
in terms of supporting me through the process, they were absent."
The other woman, former student Ellina Rabbat, is the lead claimant
in a proposed class-action lawsuit against Nadon and the
university.
The lawsuit alleges the university is "vicariously liable" for
Nadon's actions and the injuries and damages suffered by his
victims. Rabbat's lawyer says she plans to add the University of
Ottawa Health Services as a defendant in the lawsuit. The
allegations in the civil suit have not been proven in court, and
the University of Ottawa has not yet filed a defence.
Nadon was first charged in January after a patient noticed he was
recording her with an iPhone hidden in a cupboard during a pap test
examination. Police said they feared there were more victims. As
other patients came forward, the charges against Nadon piled up.
Both women interviewed by this newspaper said it wasn't until early
May that Health Services sent them an email explaining that Nadon
had been charged and providing a phone number to contact police.
At that point, the doctor stood accused of sexual assault and
voyeurism in connection with 51 patients over a span of 28 years.
The May 4 email from Health Services emphasized that Nadon was "no
longer connected in any way to our organization."
"There is no higher priority than the safety, confidence and
privacy of our patients," said the email.
Health Services sent 2,235 emails or letters to Nadon's former
patients in May, as well as 51,500 emails to others who weren't his
direct patients but may have seen him in various contexts,
according to executive director Christopher Fisher.
Nadon is in prison now, serving eight years after pleading guilty
earlier in December to voyeurism and sexual assault involving 49
women.
This newspaper asked Fisher for an interview on the topic of what
lessons his agency has learned and what, if anything, it might do
differently.
Fisher referred us to a statement on the Health Services website,
while saying he had "nothing further to add, so I respectfully
decline your invitation to an interview." The statement says
Nadon's guilty plea and sentence were "important steps in the
process of healing for all those involved.
"The University of Ottawa Health Services is thankful to the brave
victims who stepped forward to tell their stories and to the Ottawa
Police Service for their diligent investigation. We are also proud
of our staff and providers who have dedicated themselves to our
patients' well-being throughout this very difficult time.
"As always, UOHS will continue to maintain as our greatest priority
the delivery of high quality health care to all of our patients in
a safe and welcoming environment."
The University of Ottawa says it does not control the University of
Ottawa Health Services, which has a contract with the school but is
independently owned and managed.
The two women who spoke to this newspaper said they believe both
organizations could have done more to help the victims.
Ms. Rabbat said she was puzzled when she received the first email
from Health Services in January, the day after police charged
Nadon.
"In the wake of very serious charges filed against one of our
family physicians," said the email, "we are taking all measures to
fulfill our professional and legal obligations while ensuring that
our patients, staff and providers are supported at this difficult
time and that the public is appropriately informed."
"I thought, 'This is weird, I hope it isn't my doctor.'"
When Ms. Rabbat Googled Nadon's name and discovered he had been
charged with voyeurism and sexual assault, she said she was
horrified.
"My stomach just dropped. I felt sick. You're in shock."
She thought back to her visit with Nadon for her first pap test.
Nadon remained in the examination room while she undressed and put
her clothes back on after the exam, she said. He did not offer her
a gown, or draping over her legs during the exam, which was
conducted while she was naked from the waist down, wearing only a
bra.
Nadon made an inappropriate joke about the speculum that was
inserted into her vagina during the exam, she said.
Ms. Rabbat said she felt embarrassed and uncomfortable during the
exam, but reassured herself that this must be normal procedure for
a pap test. "I trusted him fully."
After reading about the charges against Nadon, she called the
police to report that she believed she was a victim. The police
called her in to provide a statement.
The police officer told her they would let her know if they found
any images of her on video, but some of the evidence had been
destroyed, said Ms. Rabbat. Shortly before they arrested him,
police observed Nadon dumping a garbage bag into a trash bin at a
Chelsea, Que. grocery store that contained a damaged computer hard
drive. No data was recovered from it.
Videos police found on a computer during a search of Nadon's home
in Chelsea provided evidence for multiple charges of voyeurism and
sexual assault. Nadon groped the breasts of patients and inserted
his finger into their vaginas without using gloves, according to
the agreed statement of facts in court.
Ms. Rabbat said she never heard back from police after she gave a
statement. Her complaint was not included among those that formed
the basis for the criminal case.
Health Services should have provided her with information about the
charges against Nadon immediately, she said. The first four emails
she received from Health Services failed to even "have the courtesy
of providing me the phone number of the police."
After the initial email on Jan. 20 about serious charges against an
unspecified doctor, she received an email on Jan. 22 notifying her
that Dr. Nadon was out of the office for an indeterminate amount of
time for "unforeseen circumstances"; another on April 3 saying he
would not be returning and another doctor was filling in; and one
on April 30 saying a new doctor would assume care of his patients.
"Are you trying to minimize the situation or just cover yourself,
not trying to help me tell my story and come forward?" Ms. Rabbat
said. "I felt like they didn't want me to speak out."
Ms. Rabbat also suggested Health Services should have offered
counselling to Nadon's patients.
"The Health Services does have psychologists and psychiatrists. I
definitely think that should have been offered, or mentioned at
least. Isn't trauma important enough to deal with or to address?
I'm confused about what their role would be in terms of my health
care. What is their responsibility? As a patient you expect to be
taken care of by the doctor, and when that doesn't happen, what do
you do?"
Ms. Rabbat also said the University of Ottawa should have done
more. She assumed that Health Services was part of the university
and didn't realize it is independently operated. Health Services
carries the university name and logo, uses the university email
address, is listed on the university website, has offices on campus
and serves students.
"It's irresponsible to give them all those things, then tell them
they can do what they want, and none of it is your responsibility.
"You can't just blindly give out the right to your logo and to your
students and then tell them they can do what they want and you
aren't monitoring them and that you are not going to intervene and
get involved."
The university, in a statement, said that Health Services is an
"independent service provider contracted to deliver health services
to uOttawa students and employees. It also provides health services
to people in the community."
Immediately after the first charges were laid against Nadon in
January, the university contacted Health Services to make sure he
was suspended from practising at all Health Services clinics, said
the statement.
"The safety and security of our students, faculty and support staff
is of the utmost importance to the University of Ottawa."
Ms. Rabbat said she has been in "fight mode" for most of 2018.
"Obviously, I'm super traumatized. I feel extremely violated and so
sick to my stomach. It's really, really, disgusting.
"But I'm more focused now on just getting justice. Once I have
that, I can focus on how to get over it in a healthy way."
Her experience with Nadon left her less likely to trust people,
especially doctors, she said. "It's even hard for me now to find a
therapist I can trust. I don't know if I can trust people that I
don't know."
The other woman said she found out about the charges against Nadon
from a friend who read a news story.
That prompted the woman to contact police about her own experience
with Nadon.
She had gone to him for treatment of an ailment. During the visit,
he suddenly groped her breast.
"It just happened, he touched me. I remember my first reaction was
not in my mind, it was in my body. I just contracted everything. It
went very fast . . . I remember his face, he was talking and
talking, then during (the groping) it was silence, then he was
talking again.
"I was a little bit dizzy, like, 'What just happened?' I wanted to
ask him, 'What just happened?' Then he was talking, talking,
telling me he will give me a prescription, he takes one or two
minutes. Then I said, 'OK, I will not confront him now.' I left,
and I was like, 'Oh, that's just disgusting, what happened?'"
She took a shower, and phoned a friend. The woman said she phoned
Health Services the next day but gave up after being put on hold.
She searched the university website but didn't immediately see what
service to contact.
She just wanted to speak to someone, perhaps warn them, without
going to police, she explained.
"I was afraid of being involved in the whole formal process where I
would have to say, to explain, where I would be confronted to him
directly . . .
"So I kind of let it go. And I feel guilty about this because I
guess I could have done more."
She also questioned herself about the groping.
"I felt, oh, maybe it's me, provoking something? Maybe there is
something in me that provokes that sort of behaviour?
"In my culture I have this image of oh, for women, sometimes this
happens and it's not such a big deal. But because I went to the
police and they took it seriously, I know it's a big deal and I
shouldn't be ashamed."
Once she heard about the charges against Nadon, the woman decided
to call police.
"If you know there are other victims, you feel maybe, OK, I can say
what has happened to me. But if you have to go through it alone, in
the police station, it can be very intimidating."
She has high praise for the way police handled her complaint.
"When I came to the police station, they really took it seriously.
I didn't feel I had to justify. They were very supportive."
Her complaint was the basis for one of the sexual assault charges
that Nadon pleaded guilty to.
Her suggestion? Health Services could have put someone in charge of
contacting Nadon's patients. Personally.
"You can call that person and talk, and figure out what to do,
maybe you go to the police or not, but it's available . . . You can
talk and it's anonymous and doesn't trigger a whole process." [GN]
VITALE'S PIZZERIA: Wins OK of Class Stipulation in Collier Suit
---------------------------------------------------------------
The Hon. Ellen S. Carmody approves the stipulation regarding
conditional certification of collective action and approval of
proposed notice to join lawsuit filed by the parties in the lawsuit
styled MONICA COLLIER, an individual, and on behalf of all others
similarly situated v. VITALE'S PIZZERIA OF HUDSONVILLE, LLC,
MAURIZIO LOGIUDICE, an individual, and MANDY TITHOF, an individual,
jointly and severally, Case No. 1:18-cv-00804-ESC (W.D. Mich.).
The lawsuit is an employment action filed under the Fair Labor
Standards Act on July 19, 2018.
In the Stipulation, the parties agree that the proposed class (the
FLSA class), as defined in the attached proposed Notice of Right to
Join, should be defined as:
All current and former hourly employees of Vitale's Pizzeria
of Hudsonville, LLC who worked in excess of forty (40) hours
during a workweek, and were paid in cash for any part of
their wages at any time after July 19, 2015.
The parties further agree that the collective action certification
shall be conditional only. The Defendants reserve the right to
move to decertify the FLSA class at a later date, consistent with
any deadlines set by the Court. The Defendants shall provide to
Plaintiff an excel spreadsheet containing the names, last known
address, and dates of employment of each current or former employee
of the Defendants, who falls within the definition of FLSA class.
The parties agree that the opt-in period for the FLSA class will
remain open for 90 days from the Court's approval of the entry of
this Order. [CC]
The Plaintiff is represented by:
Robert Anthony Alvarez, Esq.
Agustin Henriquez, Esq.
AVANTI LAW GROUP, PLLC
600 28th St. SW
Wyoming, MI 49509
Telephone: (616) 257-6807
E-mail: ralvarez@avantilaw.com
ahenriquez@avantilaw.com
- and -
Catherine A. Brainerd, Esq.
Ian A. Northon, Esq.
Patrick E. Sweeney, Esq.
RHOADES MCKEE PC
55 Campau Ave., N.W., Suite 300
Grand Rapids, MI 49503
Telephone: (616) 235-3500
E-mail: cabrainerd@rhoadesmckee.com
ian@rhoadesmckee.com
psweeney@rhoadesmckee.com
WAL-MART STORES: April 4 Settlement Fairness Hearing Set
--------------------------------------------------------
The following statement is being issued by Robbins Geller Rudman &
Dowd LLP regarding the
Wal-Mart Stores Shareholder Litigation:
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
CITY OF PONTIAC GENERAL EMPLOYEES'
RETIREMENT SYSTEM, Individually and on
CLASS ACTION
Behalf of All Others Similarly Situated,
Plaintiff,
vs.
WAL-MART STORES, INC., et al.,
Defendants.
CLASS ACTION
No. 5:12-cv-05162-SOH
SUMMARY NOTICE
TO:
ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED WALMART INC.
("WALMART") PUBLICLY TRADED COMMON STOCK DURING THE PERIOD FROM
DECEMBER 8, 2011, THROUGH AND INCLUDING APRIL 20, 2012 (THE
"CLASS")
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY
A CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED that pursuant to Rule 23 of the Federal
Rules of Civil Procedure and an Order of the United States District
Court for the Western District of Arkansas, that the
above-captioned action (the "Litigation") has been certified as a
class action on behalf of the Class, except for certain persons and
entities who are excluded from the Class by definition as set forth
in the full printed Notice of Proposed Settlement of Class Action
(the "Notice").
YOU ARE ALSO NOTIFIED that Lead Plaintiff in the Litigation, City
of Pontiac General Employees' Retirement System, on behalf of
itself and the other Members of the Class, have reached a proposed
settlement of the Litigation with defendants Walmart and Michael T.
Duke (collectively, "Defendants") for the sum of $160 million in
cash (the "Settlement"). If the Settlement is approved, it will
resolve all claims in the Litigation.
A hearing will be held on April 4, 2019, at 10:00 a.m. CT, before
the Honorable Susan O. Hickey at the United States Courthouse, 100
Reserve Street, Hot Springs, AR 71901, for the purpose of
determining: (1) whether the proposed Settlement should be approved
by the Court as fair, reasonable and adequate; (2) whether,
thereafter, this Litigation should be dismissed with prejudice
against the Defendants as set forth in the Stipulation of
Settlement dated October 26, 2018; (3) whether the Plan of
Allocation is fair, reasonable, and adequate and therefore should
be approved; and (4) the reasonableness of the application of Lead
Counsel for the payment of attorneys' fees and expenses incurred in
connection with this Litigation, together with interest thereon
(which request may include a request for reimbursement of Lead
Plaintiff's reasonable costs and expenses pursuant to the Private
Securities Litigation Reform Act of 1995).
IF YOU PURCHASED OR ACQUIRED WALMART PUBLICLY TRADED COMMON STOCK
DURING THE PERIOD FROM DECEMBER 8, 2011, THROUGH AND INCLUDING
APRIL 20, 2012 (THE "CLASS PERIOD"), YOUR RIGHTS MAY BE AFFECTED BY
THIS LITIGATION AND THE SETTLEMENT THEREOF. If you have not
received a detailed Notice as referred to above and a copy of the
Proof of Claim and Release form, you may obtain copies by writing
to Walmart Securities Settlement, Claims Administrator, c/o Gilardi
& Co. LLC, P.O. Box 404094, Louisville, KY 40233-4094, or by
downloading this information at
www.WalmartSecuritiesSettlement.com. If you are a Class Member, in
order to share in the distribution of the Net Settlement Fund, you
must submit a Proof of Claim and Release online at
www.WalmartSecuritiesSettlement.com by April 15, 2019, or by
mail postmarked no later than April 15, 2019, establishing that you
are entitled to a recovery. You will be bound by any judgment
rendered in the Litigation unless you request to be excluded, in
writing, postmarked by March 14, 2019.
If you purchased or otherwise acquired Walmart publicly traded
common stock during the Class Period and you desire to be excluded
from the Class, you must submit a request for exclusion such that
it is postmarked no later than March 14, 2019, in the manner and
form explained in the detailed Notice referred to above. All
Members of the Class who do not validly request exclusion from the
Class will be bound by any judgments or orders entered in the
Litigation pursuant to the Stipulation of Settlement.
Any objection to any aspect of the Settlement must be filed with
the Clerk of the Court and also delivered by hand or First-Class
Mail to each of the following addresses such that it is received no
later than March 14, 2019:
COURT:
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF
ARKANSAS
Clerk of the Court
United States Courthouse
101 South Jackson Avenue, Room 205
El Dorado, AR 71730
LEAD COUNSEL:
ROBBINS GELLER RUDMAN
& DOWD LLP
ELLEN GUSIKOFF STEWART
655 West Broadway, Suite 190
San Diego, CA 92101
DEFENDANTS' COUNSEL:
LATHAM & WATKINS LLP
PETER A. WALD
505 Montgomery Street, Suite 2000
San Francisco, CA 94111
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DATED: December 6, 2018
WALMART STORES: Erie Files Suit Over Indemnification Dispute
------------------------------------------------------------
Erie Insurance Exchange, Plaintiff, v. Walmart Stores, Inc., and
Basic Grain Products, Inc., Defendants, Case No. 2019CH00323
(Circuit Ct., Cook Cty., Ill., January 10, 2019) is an action for
declaratory judgment seeking a determination of the rights and
obligations of the parties in connection with an insurance policy
that Erie issued to Basic Grain.
The underlying complaint involves a proposed class action lawsuit
against Walmart. The plaintiffs allege that Walmart sold pita chips
that were falsely labeled as "ALL NATURAL" when, in fact, the chips
were not all natural and contained unnatural, synthetic and/or
artificial ingredients.
Walmart seeks coverage under the insurance policy that Erie issued
to Basic Grain. Erie seeks a declaration from this Court that it
has no duty, under the terms of the insurance policy that Erie
issued to Basic Grain, to defend or indemnify Walmart under the
policy, relates the complaint.
Erie is a reciprocal insurance exchange organized and existing
under the laws of the Commonwealth of Pennsylvania, with its
principal place of business located in Pennsylvania.
Walmart is a corporation organized and existing under the laws of
the State of Arkansas, with its principal place of business in
Bentonville, Arkansas.
Basic Grain is a corporation organized and existing under the laws
of the State of Ohio, with its principal place of business in
Coldwater, Ohio. Basic Grain is joined here as a necessary party
only. Erie does not seek any affirmative relief against Basic Grain
and will agree to dismiss Basic Grain if it executes a stipulation
in which it agrees to be bound by any judgment of this Court or
settlement between the parties.[BN]
The Plaintiff is represented by:
Bruce M. Lichtcsien, Esq.
Hinkhouse Williams Walsh LLP
180 North Stetson, Suite 3400
Chicago, IL 60601
Phone: (312) 784-5431
Email: blichtcsien@hww-law.com
WASHINGTON COUNTY, OR: Barber's Suit Can't Proceed as Class Suit
----------------------------------------------------------------
In the case, BENJAMIN JAY BARBER; JAY DAVID LEATHERWOOD; and JA
YCOB PA TRICK HOLTEN, Petitioners, v. PAT GARRETT, Sheriff,
Respondent, Case No. 3:18-cv-01870-AC (D. Or.), Judge Michael H.
Simon of the U.S. District Court for the District of Oregon
Barber, an inmate at the Washington County Jail, purports to bring
the action challenging the constitutionality of convictions
obtained against all three Petitioners in Washington County Circuit
Court. Currently before the Comi are the "Petition for Post
Conviction Relief" filed to initiate the action, as well as several
motions subsequently filed by Petitioner Barber.
Initially, the Comi notes that although Petitioner Barber names two
additional Petitioners in the caption of the Petition, neither of
these two individuals submitted the $5 filing fee or an in forma
pauperis application, or signed the Petition. Accordingly, Judge
Simon dismisses the claims of Petitioners Leatherwood and Holten.
As to Petitioner Barber's claims, the Judge notes that Petitioner
initiated the action by filing a "Petition for Post Conviction
Relief" under Oregon Revised Statutes Sections 138.510-680, which
he seeks to "remove" to the Court under 28 U.S.C. Sections 1338(a)
& 1454. He finds that the "Petition for State Post-Conviction
Relief" referenced by Petitioner Barber does not fall within the
purview of Section 1454. As with the removal statute, he says the
Petitioner's claims do not fall within the purview of Section
1338(a).
To the extent Petitioner Barber's claims are construed as an
attempt to seek habeas corpus relief under 28 U.S.C. Section 2254,
the Judge finds that the Petition does not comply with Rule 2(d) of
the Rules Governing Sec. 2254 cases. Accordingly, to the extent
Petitioner Barber seeks state post-conviction relief on behalf of
himself or the other named Petitioners, the Judge denies the
Petition. If Petitioner Barber wishes to pursue an application for
writ of habeas corpus pursuant to 28 U.S.C. Section 2254
challenging the legality of his conviction, the Petitioner must
file his application on the form provided by the Court within 30
days of the date of the Order. Failure to do so will result in the
dismissal of the action.
As to the Motion for Appointment of Counsel, the Judge finds that
unless an evidentiary hearing is required, the decision to appoint
counsel in a Section 2254 proceeding is within the discretion of
the district court. The interests of justice do not require the
appointment of counsel at this juncture of the case. Accordingly,
he denies Petitioner Barber's Motion for Counsel.
With respect to the Motions for Joinder and Motion to Proceed as a
Class Action, the Judge denies it because an incarcerated, pro se
individual is not suitable to act as a class representative and
because, to the extent the Court construes the action as seeking
habeas relief under Section 2254, Petitioner Barber may not advance
the claims of other individuals.
Plaintiff Barber moves to convene a three judge panel under 28
U.S.C. Section 2284 and 17 U.S.C. Section 502 to permanently enjoin
operation of Or. Rev. Stat. Section 163.472 as violative of federal
law. The Judge denies these motions, because to the extent the
action is construed as seeking relief under 28 U.S.C. Section 2254,
the sole remedy is the determination of the legality of Plaintiff
Barber's state court conviction; the Plaintiff cannot succeed on
the merits of a claim that enforcement of the criminal statute in
question should be universally enjoined.
For these reasons, Judge Simon dismissed the Petition for Post
Conviction Relief. He dismissed the claims of Petitioners
Leatherwood and Holten without prejudice to their right to each
file a separate application for writ of habeas corpus pursuant to
28 U.S.C. Section 2254, as appropriate. Petitioner Barber may file
a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. Section
2254 within 30 days in the action on the form provided by the
Court. Petitioner Barber is advised that failure to do so will
result in the dismissal of the action.
He denied Petitioner Barber's Motion to Remove Case to Federal
Court, Motion for Appointment of Counsel, Motion for Three Judge
Court Injunction, Motion to Proceed as Class Action, Motion for
Joinder of Leatherwood, Motion for Joinder of Holten, Motions for
Preliminary Injunction and Temporary Restraining Order, and Motion
for Three Judge Panel.
The Clerk of the Court is directed to send Plaintiff Barber a form
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section
2254 with the Order.
A full-text copy of the Court's Jan 2, 2019 Order is available at
https://is.gd/nOnuS7 from Leagle.com.
Benjamin Barber, Petitioner, pro se.
WELLS FARGO: $480MM Cross-Selling Class Action Settlement OK'd
--------------------------------------------------------------
Perry Cooper, writing for BloombergLaw, reports that Wells Fargo &
Co. will pay $480 million to settle class claims it misled
shareholders about opening unauthorized accounts after a federal
court granted final approval to the deal Dec. 18.
The investors alleged the bank's stock price plummeted after the
scandal broke in 2016.
Over 1.8 million shareholders representing 1.1 billion affected
shares will recover $0.35 per share, Judge Jon S. Tigar wrote for
the U.S. District Court for the Northern District of California.
The court approved a $95.9 million attorneys' fee award for class
counsel, which constitutes 20 percent of the settlement fund.
The award is "within the median range of 19-22.3 percent in fees
awarded in cases with large settlements over $100 million," the
court said.
Class counsel will also get $470,000 in expenses.
Robbins Geller Rudman & Dowd LLP and Bernstein Litowitz Berger
Grossmann LLP represented the investors.
Sullivan and Cromwell LLP represented Wells Fargo.
The case is Hefler v. Wells Fargo & Co., 2018 BL 468579, N.D. Cal.,
No. 16-5479, 12/18/18. [GN]
WISCONSIN ELECTRIC: Settlement in Luebke Suit Has Prelim Approval
-----------------------------------------------------------------
In the case, PETER LUEBKE, individually, and on behalf of all other
similarly situated, Plaintiff, v. WISCONSIN ELECTRIC POWER COMPANY
d/b/a WE ENERGIES, Case No. 17-CV-969 (E.D. Wis.), Magistrate Judge
William E. Duffin of the U.S. District Court for the Eastern
District of Wisconsin granted the Parties' Joint Motion for
Preliminary Approval of the Amended Collective and Class Action
Settlement.
He finds that the Parties' Agreement is fair, reasonable, and
adequate resolution of disputed claims under the Fair Labor
Standards Act and applicable wage and hour laws as articulated in
the Parties' Agreement. The class definitions of the Fed. R. Civ.
P. 23 Classes are modified to conform with the Class Definitions
described in Section IV.B of the Amended Settlement Agreement.
The Magistrate approved the Parties' Notices of Class Action
Settlement in the forms of Exhibits E and F to the Amended
Settlement Agreement for distribution to the 27 members of the Rule
23 Classes identified by the Parties on Exhibit A; and the
provision of the Notices of Class Action Settlement, in the form of
Exhibits E and F, by mail as valid, due, and sufficient notice to
affected Rule 23 Classes' Members.
Any of affected Rule 23 Classes' members who wish to exclude
him/herself from the Parties' Settlement of Wisconsin Sate and/or
local law claims as defined in the Amended Settlement Agreement
will him/herself per the instructions set forth in the Notices
within 30 days of the mailing of the Notices.
Any of the affected Rule 23 Classes' members who wish to object in
any way to the proposed Amended Settlement Agreement will file and
serve such written objections per the instructions set forth in the
Notices no later than 30 days after the mailing of the Notices,
together with copies of all papers in support of his or her
position.
All other matters addressed in the Court's Order Granting
Preliminary Approval of Settlement remain unchanged.
A full-text copy of the Court's Dec. 28, 2018 Order is available at
https://is.gd/3px9xT from Leagle.com.
Peter Luebke, Plaintiff, represented by Larry A. Johnson --
ljohnson@hq-law.com -- Hawks Quindel SC, Timothy P. Maynard --
tmaynard@hq-law.com -- Hawks Quindel SC & Summer H. Murshid --
smurshid@hq-law.com -- Hawks Quindel SC.
Wisconsin Electric Power Company, doing business as WE Engeries,
Defendant, represented by Sean M. Scullen --
sean.scullen@quarles.com -- Quarles & Brady LLP & Steven M. Kruzel
-- steven.kruzel@quarles.com -- Quarles & Brady LLP.
WORLD FINANCIAL: Misclassified Associates as Contractors, Suit Says
-------------------------------------------------------------------
TRICIA YEOMANS, ISMAIL CHRAIBI,ADRIAN RODRIGUEZ, ROBERT JENKINS,
and DOROTHY JENKINS, individually and on behalf of all others
similarly situated, the Plaintiffs, vs. WORLD FINANCIAL GROUP
INSURANCE AGENCY, INC., a California corporation; WORLD FINANCIAL
GROUP, INC., a Georgia corporation; and DOES 1 to 100, inclusive,
the Defendants, Case No. CGC-18-572397 (Cal. Super. Ct., Dec. 28,
2018), seeks to recover all wages, including minimum wage under the
California Labor Code.
According to the complaint, Defendants market financial and
insurance products sold through its affiliated companies. The
Defendants recruit as many individuals as possible to sign up to
work for Defendants by representing that joining Defendants as
"Associates" will allow individuals to build and operate their own
financial services business, and that Defendants merely give them
the tools to build that business. However, in reality, the
Defendants conduct their business by way of a massive pyramid
scheme: once prospective Associates pay the required $100
application fee to join Defendants and are approved, one of
Associates' primary duties is to recruit more Associates for the
benefit of Defendants -- a duty for which they receive no
compensation. Indeed, Defendants set the criteria for Associates'
promotion up the company hierarchy, and one of the main factors
involved in achieving promotions is the number of new Associates
that an Associate recruits.
Because of Defendants' intense focus on recruiting to build the
pyramid, they place very little emphasis on marketing or selling
financial and insurance products to anyone other than new
Associates and their family and friends. In fact, Defendants'
emphasis on recruiting as many people as possible is one of their
primary sales tactics, because in addition to the required $100
application fee, once new Associates sign up with Defendants,
Defendants pressure them to purchase Defendants' financial and
insurance products. The Defendants train their Associates to sell
financial and insurance products to the new Associates as soon as
possible, since most new Associates leave the company shortly after
signing up. Becoming an Associate require no prior skill,
knowledge, training, or experience, so the recruiting pool is
nearly limitless. Therefore, recruiting is also a major revenue
stream, through the combination of the required $100 application
fee paid by all new Associates, new policies then aggressively
marketed to the new Associates, and the further "mining" of the
contacts and thus prospective further new Associates who regularly
flow from all newly recruited Associates.
In order to increase their profits, Defendants have unlawfully
misclassified Associates as "independent contractors" rather than
as employees, thereby evading all of the obligations of an employer
to provide benefits, pay relevant taxes, and absorb various normal
operating costs. Accordingly, Plaintiffs and other similarly
situated and aggrieved individuals in the business of selling
securities and insurance or training to be in the business of
selling financial and insurance products.[BN]
Attorneys for Plaintiffs, individually and on behalf of
all others similarly situated and aggrieved:
Stanley D. Saltzman, Esq.
Adam M. Tamburelli, Esq.
MARLIN & SALTZMAN, LLP
29800 Agoura Road, Suite 210
Agoura Hills, CA 91301
Telephone: (818) 991-8080
Facsimile: (818) 991-8081
E-mail: ssaltzman@marlinsaltzman.com
atamburelli@marlinsaltzman.com
[] FMCSA Preempts California's Meal and Rest Break Rules
--------------------------------------------------------
Clark Hill PLC, in an article for JDSupra, reported that on
December 21, 2018, the U.S. Department of Transportation's Federal
Motor Carrier Safety Administration (FMCSA) announced it is
granting petitions to preempt the State of California's meal and
rest break rules, which differ from current Federal
hours-of-service regulations. California has been a major
battleground in the fight between transportation businesses and
labor regulators as California's meal and rest break rules are
substantially different from those mandated under the Federal
hours-of-service rules. Thousands of lawsuits (including many
class action cases) that are currently pending will be impacted by
this announcement from the Department of Transportation.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2019. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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The CAR subscription rate is $775 for six months delivered via
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are $25 each. For subscription information, contact
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