/raid1/www/Hosts/bankrupt/CAR_Public/190125.mbx
C L A S S A C T I O N R E P O R T E R
Friday, January 25, 2019, Vol. 21, No. 19
Headlines
12-15 BROADWAY: Faces Fischler Suit Alleging ADA Breach
ABBOTT HOME: Wilson's Bid to Certify Collective Action Granted
ACCESS FUNDING: Maryland AG Sues Over Lead Poisoning Settlements
AKRON FARM: Fails to Pay Minimum, Overtime Wages, Demchyshyn Says
ALLSTATE INSURANCE: Hoggatt Suit Transferred to N.D. Mississippi
AMERICA ACADEMY: Sullivan Files Suit under ADA in New York
AMERICAN COMMERCIAL: Abante Rooter Suit Alleges TCPA Violation
ASSESSMENT TECH: Sullivan Files Suit under ADA in New York
AVENUE THERAPEUTICS: Krause Files Class Suit Over InvaGen Merger
BED BATH: Asst. Managers to Get $1,750 Each in $8.5MM Settlement
BED BATH: Hak Chu Says Website not Blind-Friendly
BELLA BUS: Sued by Walters Over Improper Wage Practices
BEST THAI: Court Denies Default Judgment Bid in U. Bazan Suit
BRIGHTWATER SUITES: Borozny Files Suit under ADA in Florida
C TECH: Bromberg Sues Over Deceptive Debt Collection Practices
CABINETS TO GO: Hayden Seeks Unpaid Overtime Wages, Damages
CAMPBELL SOUP: Ingredient Class Action to Stay in Federal Court
CHARLOTTE, NC: DR Horton Questions Water/Wastewater Capacity Fees
COLD STORAGE: Court Dismisses R. McGinnis' BIPA Suit
CONSUMER REPORTS: Sullivan Suit Asserts Disabilities Act Breach
CV SCIENCES: Ct. Issues Service & Deadline Order in Derivative Suit
CVS RX: Cabrera Appeals Partial Judgment Ruling to 9th Cir.
DENKA PERFORMANCE: Chloroprene Emission Suit Remains in Dist. Court
DEPENDABLE CARE: Loses Bid to Dismiss Home Attendants' Wage Suit
DISCOVER FINANCIAL: 4th Cir. Appeal Filed in Collins Suit
DRAFTKINGS: Sued Over Sports Betting National Championship
DYNAMIC RECOVERY: Faces Cunningham Suit for Violation of FDCPA
DYNAMIC RECOVERY: Smith Files FDCPA Suit in South Carolina
ERIKA PADRON: Urquilla Rodriguez Sues Over Unpaid Wages
ESTATES NY REAL ESTATE: Faces Fischler Suit Under ADA
FIVE FOUR GROUP: Fischler Suit Alleges ADA Violation
GLUNZ OCEAN: Violates Disabilities Act, Honeywell Suit Says
GOOGLE LLC: Slapped With EUR50MM Fine by France
GREENSKY INC: Bradley Yu Sues over Misleading Financial Report
HEATHERWOOD APARTMENTS: Violates Disabilities Act, Fischler Asserts
HIGHER PICTURES: Photo Gallery Hit With ADA Class Action
HOUK GALLERY: Faces Class Action for ADA Violation
HOUSTON BAPTIST: Court Denies Bid to Dismiss D. Hicks' TCPA Suit
HOWARD GREENBERG: Dawson Suit Alleges ADA Breach
INTERNATIONAL PAPER: Slocum Wants to File Cert. Bid by April 15
JAECKEL GALLERY: Faces Class Suit Under Disabilities Act
JANE KAHAN: Dawson Files Suit under ADA in S.D. New York
JASON MCCOY: Dawson Brings Class Suit Under ADA
JTEKT CORP: Direct Purchaser Class Certification Bid Denied
KEITH DE LELLIS: Violates ADA, Dawson Suit Asserts
KENTUCKY: Seeks 6th Cir. Review of Ruling in Arriola Inmate Suit
KER HOLDINGS: Borozny Suit in Fla. Asserts ADA Breach
KRAUSHAAR GALLERIES: Faces Dawson Suit Alleging ADA Violation
LEONARD HUTTON: Faces Dawson Suit for Violation of ADA in N.Y.
LESLIE FEELY: Art Gallery Hit With ADA Class Suit
LIBERTY INSURANCE: Richelson Appeals Suit Dismissal to 6th Cir.
LIVING SPACES: Faces Class Action Over Defective Electric Recliner
LOVE BEAL: Dempsey Files FDCPA Suit in Arkansas
MACKLOWE GALLERY: Dawson Sues Art Gallery Under ADA
MARIAN GOODMAN: Dawson Alleges ADA Violation
MARK BORGHI: Violates Disabilities Act, Dawson Suit Asserts
MARRIOTT VACATIONS: Bid for Sanction in Timeshare Suit Denied
MDL 2323: Court Denies A. Martin's Bid to Opt Out of Settlement
MDL 2591: Ct. Adopts $503MM Atty's Fees Award Allocation Framework
MIDLAND CREDIT: Cooper Appeals FDCPA Suit Dismissal to 11th Cir.
MIDLAND CREDIT: Court Dismisses E. Greene's FDCPA Suit
MISSOURI: State, Governor Immune in Public Defenders' Suit
MMI 82 LLC: Honeywell Files ADA Class Action in S.D. Florida
MOLINA HEALTHCARE: Steamfitters Appeals Decision to 9th Circuit
NAT'L CREDIT: Gochet Disputes Student Loan "Accelerated" Status
NEKTAR THERAPEUTICS: Inital CMC in Mulquin Suit Continued
NEW JERSEY: Court Tosses Out NJSP Inmate's IPC Claim
NFL: Sports Betting Expert Expects Class Action Over Blown Calls
NIAGARA COUNTY, NY: Strip Search Suit Proceeds for 2 Inmates
NY GREAT STONE: Fails to Pay OT Under FLSA/NYLL, Chavez Alleges
OASIS POWER: Albrecht Files Bid to Compel Production of Docs
OC TRANSPO: Double Amputee of Jan.11 Crash Chooses Independent Suit
OPTIO SOLUTIONS: Muldowney Suit Alleges FCRA Violation
PENNSYLVANIA: Lee Sues Over Unpaid Wages for Post-Shift Work
POPSOCKETS LLC: Faces Suit Over Blind-Inaccessible Web Site
QUALITY BEVERAGE: Court Dismisses Teixeira Unpaid Wages Suit
RBS CITIZENS: 3d Cir. Vacates Class Certification in Reinig Suit
RESURGENT CAPITAL: Brown Hits Misleading Debt Collection Letter
RIVER MEADOWS: Filed for Bankruptcy Amidst Pending Class Action
SAS ANALYTICS: 4th Amendment Claims vs Individual Defendants Junked
SERVICE EMPLOYEES: Faces Class Suit in Pa. for Civil Rights Breach
SOLO HEALTHCARE: Rodich-Annese Sues for Breach of Contract
STATE FARM: Seeks 6th Cir. Review of Decision in Hicks Suit
STEPHEN BRUCE: Court Denies Bid to Dismiss J. Cooper's FAC
STITCH FIX: Bishop Files Class Action Over Share Price Drop
TIGER BRANDS: Listeriosis Victims Sign Up for Class Suit
UK CLEANERS: Gonzales Seeks Unpaid Overtime for Hrs Worked Over 40
UNITED STATES: Colorado Court Dismisses Veteran's FTCA Suit
UNITED STATES: Hernandez Files Suit Under Tucker Act
UNITED STATES: I.P. Files Suit Under Tucker Act
V CIVITANO: Caballero Seeks to Recover OT Pay Under FLSA
VIBRANTCARE REHAB: Faces Williams Suit in Cal. Superior Court
WAITR HOLDINGS: Halley Sues Over Unreimbursed Expenses
WALT DISNEY: Bid to Certify Class in Valenzuela Suit Granted
WEST REVENUE: Court OKs Final Approval of $335K Gerlach Settlement
WONDERFUL CITRUS: Court Denies Peralta Class Certification
WONDERFUL CITRUS: Jordan Parties Need to Confer re Discovery Issue
ZIEN SERVICE: Court Grants 2nd Extension of Dispositive Deadline
ZOGSPORTS: Ernst Moves to Certify California and FLSA Classes
ZWANGER & PESIRI: Sali Files FDCPA Suit in E.D. New York
Asbestos Litigation
ASBESTOS UPDATE: 2 Companies Fined for Asbestos Exposure
ASBESTOS UPDATE: Bid to Dismiss, Remand Youse's Suit Denied
ASBESTOS UPDATE: Broyles Couple Sue Over Wife's Lung Cancer
ASBESTOS UPDATE: Cigarette Maker Faces Prokocimer Asbestos Lawsuit
ASBESTOS UPDATE: Clerk to File Supplemental Record in Andrews Case
ASBESTOS UPDATE: Company Settles Asbestos Violations for $1.5MM
ASBESTOS UPDATE: Court Declines to Bifurcate Asbestos Case
ASBESTOS UPDATE: Cronin Widow Sues Companies for Husband's Death
ASBESTOS UPDATE: Family Searches for Answer on Engineer's Death
ASBESTOS UPDATE: Former Bricklayer's Widow Seeks Asbestos Info
ASBESTOS UPDATE: Former Laborer Dies of Asbestos Exposure
ASBESTOS UPDATE: J&J Faces 1st Trial in Asbestos Talc Suit
ASBESTOS UPDATE: Judge to Resolve Relationship of Espinosa Cases
ASBESTOS UPDATE: Keener Couple Sues Over Wife's Lung Cancer
ASBESTOS UPDATE: Man Arrested for Dumping Asbestos in Wildlife Area
ASBESTOS UPDATE: Maremont Files Ch. 11 to Deal With Asbestos Claims
ASBESTOS UPDATE: Maremont Plan Offers 29.1% to Asbestos Claimants
ASBESTOS UPDATE: NY Asbestos Court Pivotal for Talc Litigation
ASBESTOS UPDATE: Payne Couple Sues Abb, et al., for Failure to Warn
ASBESTOS UPDATE: Rule 26 Initial Disclosures in Espinosa Extended
ASBESTOS UPDATE: Site Manager Diagnosed with Asbestos Disease
*********
12-15 BROADWAY: Faces Fischler Suit Alleging ADA Breach
-------------------------------------------------------
12-15 Broadway Astoria, LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Brian Fischler, individually and on behalf of all other persons
similarly situated, Plaintiff v. 12-15 Broadway Astoria, LLC,
Defendant, Case No. 1:19-cv-00303 (E.D. N.Y., January 16, 2019).
12-15 Broadway offers luxury rental apartments in Astoria,
Queens.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
ABBOTT HOME: Wilson's Bid to Certify Collective Action Granted
--------------------------------------------------------------
Zoe Wilson, et al., the Plaintiffs, vs. Abbott Home Care, Inc., et
al., the Defendants, Case No. 2:18-cv-00743-GCS-EPD (S.D. Ohio),
the Hon. Judge George C. Smith entered an order on Jan. 7, 2019,
granting Parties' joint stipulation to conditionally certify case
as a collective action pursuant to 29 U.S.C. section 216(b) and
that notice be provided to putative class members of Plaintiffs'
Fair Labor Standard Act claims.[CC]
ACCESS FUNDING: Maryland AG Sues Over Lead Poisoning Settlements
----------------------------------------------------------------
Rachel Chason, writing for The Washington Post, reported that a
Chevy Chase company that made millions of dollars from deals with
victims of lead poisoning targeted an "entire generation of youth
coming of age in Baltimore" with its deceptive practices,
Maryland's top law enforcement official alleges.
But even if a lawsuit filed by Attorney General Brian E. Frosh (D)
is successful, the amount of restitution those victims can receive
is severely limited by a separate class-action claim.
The settlement of that lawsuit, brought by two of Access Funding's
former customers, entitles victims of the company to receive about
$750,000 -- about 4 percent of what Frosh's office asserts they are
owed.
Brian Brown, an attorney who represented the victims in the
class-action suit, said his firm, Brown & Barron, got "the best
possible deal for our clients."
Under the terms of the settlement, the victims "released" claims
filed by Frosh's office and the Consumer Financial Protection
Bureau in 2016, meaning they cannot receive additional
restitution.
Frosh's office is appealing the lawsuit in the hopes that it will
be able to win back money for the victims.
Access Funding made deals with people poisoned by lead paint in
their homes who were awarded "structured" settlements, which are
paid in small increments over decades, ensuring that plaintiffs do
not spend their money all at once.
The company obtained rights to structured-settlement payments worth
nearly $18 million from 100 Maryland residents between 2013 and
2015, according to an investigation launched by Frosh's office in
response to reports in The Washington Post. More than 70 percent of
the residents were victims of childhood lead poisoning.
Access Funding was founded in 2012 by Lee Jundanian, Michael
Borkowski and Raffi Boghosian, all of whom are named as defendants
in Frosh's lawsuit. None of them responded to requests for
comment.
One of their customers was Freddie Gray, who was poisoned by lead
paint long before his death in police custody plunged Baltimore
into riots in 2015.
Gray and his two sisters sold $435,000 of their settlement --
valued at $280,000 -- for about $54,000. A Prince George's County
judge, to whom Access Funding funneled most of its cases, approved
the deal. Neither Gray nor his sisters were in court for the
approval.
Much of Frosh's investigation either confirms or amplifies
reporting by The Post. A motion filed in connection with the
state's lawsuit this month details how Access Funding bombarded
victims of lead paint poisoning, many of them mentally impaired,
with calls and texts offering quick cash and directed them to a
lawyer who was supposed to provide independent advice but was
actually working closely with the company.
"It was just an outrageous abuse of these young adults," Frosh
said.
The motion describes emails obtained through the lawsuit that make
clear the lengths to which company executives went -- in the words
of Jundanian -- to "truly 'own' the lead paint market in
Baltimore."
For two years, the company's research department tried to identify
"lead paint virgins" as part of what it called its "virgin research
project," the emails say. The aim was to find families or groups of
people who had received settlements but had not yet sold them to
another company.
The company posted 22 billboards throughout the city in the course
of one month in 2013, urging victims of lead poisoning to "GET CASH
NOW."
The settlements were the only source of income for many of Access
Funding's victims, which leaders at Access Funding knew and sought
to take advantage of, Frosh's lawsuit states.
In the company's manual, employees were instructed to remember that
their customers "do not generally have the peace of mind in their
lives that comes with financial stability."
"Take this as a positive and take full advantage," the manual said.
"You are their savior."
Access Funding has changed its name to Reliance Funding, which is
located in Bethesda, according to its website.
Phone calls to the number listed for the company were not
returned.
Twin siblings Tyree and Tyrell D., who are identified in court
filings as victims of lead paint, sold 40 years of payments, which
had a present value of $1.3 million, for about $300,000 in cash
when they turned 18.
Under the terms of the class-action suit, they would receive
$40,000 for their loss -- 4 percent of what Frosh's office asserts
they are owed.
Brown, who said his firm has fulfilled its "duty to zealously
represent our clients," said it determined after an investigation
that the amount of restitution it could seek from the defendants
was "nominal at best."
The $1.1 million the firm sought -- about $330,000 of which went to
legal fees -- would come from Access Funding's insurance. No money
has been awarded pending Frosh's appeal. A hearing will be held in
March, Brown said.
At the time Access Funding made the deals that are the focus of the
lawsuits, Maryland law required the seller of the structured
settlement to consult with an "independent professional adviser"
before the agreement could be reviewed by a county judge.
Charles E. Smith, a Maryland lawyer who oversaw the vast majority
of Access Funding's deals, claimed to provide "independent
professional advice" to its customers. But he should have been
disqualified from doing so because he was "engaged by,"
"compensated by" and "affiliat[ed]" with Access Funding," which
paid him more than $50,000 from 2013 to 2015, Frosh's lawsuit
states.
Smith, who is also named as a defendant in the Maryland case, did
not respond to requests for comment.
In 2015, he told The Post that he had "no business partnerships
with any company in the structured settlement purchasing industry."
However, emails obtained through Frosh's investigation show he
regularly communicated with Access Funding's staff members and
bragged about how quickly he could get new customers to sign off on
the paperwork necessary to move forward with the deals.
At one point, Boghosian wrote to Borkowski, then the chief
executive, saying Smith was "like an extension of our internal
team."
Smith was Boghosian's "lifelong friend" and "brother," according to
Frosh's motion, and Smith maintained an equally close friendship
and shared a law practice with Access Funding's lawyer, Anuj Sud.
Neither Smith nor Access Funding disclosed their connections with
each other to their customers or explained that Smith was
contacting them so he could later say he had provided them with
"independent professional advice."
No criminal charges have been filed against Access Funding. A
spokeswoman for Frosh said the office does not confirm nor deny the
existence of investigations.
After The Post's investigation of the industry, Frosh's office
pushed to provide stronger protections for victims, which
Maryland's highest court approved in 2015.
People selling structured settlements are now required to appear in
court so a judge can assess their cognitive capacity. Their
counselor must submit their biographical information, including
whether they have previously sold payments.
Frosh said his office is now responsible for licensing companies
wanting to do business in Maryland, providing for stronger
oversight.
"We've substantially reduced the potential for abuse going
forward," Frosh said. "But I think this is going on all over the
country." [GN]
AKRON FARM: Fails to Pay Minimum, Overtime Wages, Demchyshyn Says
-----------------------------------------------------------------
Volodymyr Demchyshyn, on behalf of himself and all other employees
similarly situated, known and unknown v. AKRON FARM Corp, an
Illinois Corporation and TADEUSZ GILEWICZ, ANTONI KOSTIEROW, and
GREGORZ ROGALA individually, Case No. 1:19-cv-00251 (N.D. Ill.,
January 11, 2019), arises under the Fair Labor Standards Act as a
result of the Defendants' alleged failure to pay minimum wages and
overtime compensation.
Akron Farm Corp is an Illinois corporation with its principal place
of business located in Harvard, Illinois. The Individual
Defendants are owners and shareholders of Akron Farm. The
Defendants own and/or operate a farm.[BN]
The Plaintiff is represented by:
Fedor Kozlov, Esq.
THE LAW OFFICE OF FEDOR KOZLOV, P.C.
1990 E. Algonquin Road, Suite 230
Schaumburg, IL 60173
Telephone: (847) 241-1299
Facsimile: (847) 241-1166
E-mail: fedor@nslslaw.com
ALLSTATE INSURANCE: Hoggatt Suit Transferred to N.D. Mississippi
----------------------------------------------------------------
The case captioned as Ethan Hoggatt, Eric Hoggatt, DDS, Plaintiffs
3-29 Allstate Insureds sold similar bogus "Dummy" insurance
policies, and Plaintiffs 20-40 Unknown but discoverable persons
similarly situated/defrauded by Defendants Homan, Plaintiffs v.
Allstate Insurance by its agent, Andy Dyson, Andy Dyson,
individually and in any corporate capacity, Mrs. Hand Tupelo
Allstate Employee, Mr. Homan doing business as: Homans Garage, Mrs.
Homan doing business as: Homans Garage and Homans Garage,
Defendants, Case No. 18-00422-GM, was transferred from the U.S.
Circuit Court for the Monroe County to the U.S. District Court for
the Northern District of Mississippi on January 15, 2019, and
assigned Case No. 1:19-cv-00014-SA-DAS.
The case was filed pursuant to the Racketeer Influenced and Corrupt
Organizations Act.
The Allstate Corporation is one of the largest insurance providers
in the United States and one of the largest that is publicly held.
The company also has personal lines insurance operations in Canada.
Allstate was founded in 1931 as part of Sears, Roebuck and Co., and
was spun off in 1993.[BN]
The Plaintiffs are represented by:
Victoria Jean Johnson Hoggatt, Esq.
HOGGATT LAW
60094 Tubb Drive
Amory, MS 38821
Tel: (830) 570-1299
Email: vjh@currentconstitutionalapp.com
The Defendants are represented by:
Harry Case Embry, Esq.
MCANGUS GOUDELOCK AND COURIE
317 Heritage Drive, Suite 3
Oxford, MS 38655
Tel: (662) 234-0271
Email: case.embry@mgclaw.com
AMERICA ACADEMY: Sullivan Files Suit under ADA in New York
----------------------------------------------------------
America Academy of Ophthalmology, Inc. is facing a class action
lawsuit filed pursuant to the Americans with Disabilities Act. The
case is styled as Phillip Sullivan, Jr., on behalf of himself and
all others similarly situated, Plaintiff v. America Academy of
Ophthalmology, Inc., Defendant, Case No. 1:19-cv-00406 (S.D. N.Y.,
January 15, 2019).
The American Academy of Ophthalmology is a national membership
association of ophthalmologists and medical doctors who provide
comprehensive eye care, including medical, surgical, and optical
care. It focuses on education, eye care information, advocacy, as
well as ophthalmic practice. The association works in collaboration
with partners such as Malpractice Insurance (OMIC),
AAOInsurance.com, Medem, Ophthalmic Societies, American Academy of
Ophthalmic Executives (AAOE), and EyeCare America. The American
Academy of Ophthalmology was founded in 1979 and is based in San
Francisco, California.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
Tel: (212) 465-1188
Fax: (212) 465-1181
Email: cklee@leelitigation.com
AMERICAN COMMERCIAL: Abante Rooter Suit Alleges TCPA Violation
--------------------------------------------------------------
Abante Rooter and Plumbing, individually and on behalf of all
others similarly situated v. American Commercial Capital, Inc. and
Does through 10, inclusive, Case No. 3:18-cv-07414 (N.D. Calif.,
December 10, 2018), is brought against the Defendants for
violations of the Telephone Consumer Protection Act.
The Plaintiff alleges that the Defendants negligently, knowingly
and willfully contacted the Plaintiff's cellular telephone in
violation of the TCPA and related regulations, specifically the
National Do-Not-Call provisions.
The Plaintiff Abante Rooter and Plumbing is a corporation of the
State of California with principal place of business in the county
of Alameda.
The Defendant American Commercial Capital, Inc. is a business loan
company. [BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
Tom E. Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (323) 306-4234
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
twheeler@toddflaw.com
ASSESSMENT TECH: Sullivan Files Suit under ADA in New York
----------------------------------------------------------
Assessment Technologies Institute, L.L.C. is facing a class action
lawsuit filed pursuant to the Americans with Disabilities Act. The
case is styled as Phillip Sullivan, Jr., on behalf of himself and
all others similarly situated, Plaintiff v. Assessment Technologies
Institute, L.L.C., Defendant, Case No. 1:19-cv-00408 (S.D. N.Y.,
January 15, 2019).
Assessment Technologies Institute, L.L.C. (ATI) provides online
education services. The Company offers supplementary nursing
education including assessments and review programs, handbooks,
flash cards, and study sessions.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
Tel: (212) 465-1188
Fax: (212) 465-1181
Email: cklee@leelitigation.com
AVENUE THERAPEUTICS: Krause Files Class Suit Over InvaGen Merger
----------------------------------------------------------------
Lisa Krause, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, v. Avenue Therapeutics, Inc., Lindsay A.
Rosenwald, Lindsay Lu, Neil Herskowitz, Jay Kranzler, Jeffrey
Paley, Akhtar Samad and Michael S. Weiss, Defendants, Case No.
1:19-cv-00107-UNA (D. Del., January 17, 2019) is a complaint
against Defendants for violation of the Securities Exchange Act of
1934.
On November 12, 2018, Avenue Therapeutics, Inc.'s Board of
Directors caused the Company to enter into a stock purchase and
merger agreement with InvaGen Pharmaceuticals, Inc. and Madison
Pharmaceuticals, Inc. On December 21, 2018, defendants filed a
proxy statement with the United States Securities and Exchange
Commission ("SEC") in connection with the Proposed Transaction.
The complaint asserts that the Proxy Statement, which scheduled a
special meeting of stockholders on the Proposed Transaction for
February 6, 2019, omits material information with respect to the
Proposed Transaction, which renders the Proxy Statement false and
misleading.
Plaintiff is an owner of Avenue common stock.
Avenue is a Delaware corporation and maintains its principal
executive offices at 2 Gansevoort Street, 9th Floor, New York, New
York 10014. Avenue's common stock is traded on the NasdaqCM under
the ticker symbol "ATXI." Avenue is a party to the Merger
Agreement.
Lindsay A. Rosenwald is Chairman of the Board of the Company.
Lucy Lu is President, Chief Executive Officer and a director of
the
Company.
Neil Herskowitz, Jay Kranzler, Jeffrey Paley, Akhtar Samad, Michael
S. Weiss are directors of the Company.[BN]
The Plaintiff is represented by:
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Phone: (302) 295-5310
Facsimile: (302) 654-7530
Email: bdl@rl-legal.com
gms@rl-legal.com
- and -
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Phone: (484) 324-6800
Facsimile: (484) 631-1305
Email: rm@maniskas.com
BED BATH: Asst. Managers to Get $1,750 Each in $8.5MM Settlement
----------------------------------------------------------------
Dan Churney, writing for Cook County Record, reported that lawyers
are ready to put to sleep a class action suit by assistant managers
at Bed Bath & Beyond stores against the national retail chain,
which gives $2.3 million to plaintiffs' counsel and about $1,750 to
each class member, in a suit that alleged the company shorted the
managers out of overtime pay.
Brad Brede and Mary Przytula filed a class action July 11, 2017, in
U.S. District Court for the Northern District of Illinois, against
Bed Bath & Beyond, a housewares retailer based in Union, N.J. Brede
and Przytula were assistant managers at Bed Bath & Beyond outlets
in New York and suburban Chicago, respectively, from 2014 to 2016.
The proposed settlement in the case was presented Jan. 18 to U.S.
District Judge Michael T. Mason, for Mason's approval.
Brede and Przytula alleged the retail chain classified them as
salaried managers to avoid paying them overtime. The company then
regularly made them work more than 40 hours per week, usually 45 to
55 hour weeks, doing much the same work as non-management, hourly
paid employees, but without overtime pay. In turn, the hourly
employees did not work overtime.
Plaintiffs claimed this is company-wide practice for Bed Bath &
Beyond, violating the U.S. Fair Labor Standards Act, as well as
state wage laws.
"Bed Bath & Beyond staffs its retail stores leanly to minimize
labor costs. Assistant store managers are not primarily responsible
for true management functions. To the contrary, assistant store
managers spend the vast majority of their time performing the same
duties as non-exempt, hourly associates," plaintiffs alleged.
Before filing suit, plaintiffs asked the company to negotiate
reimbursement for the managers outside of court, but the company
refused, leading to the class action, according to court papers.
Bed Bath & Beyond has denied wrongdoing.
After working with mediator Michael D. Young, both sides agreed to
have the company set up a settlement fund of $8.5 million. From
this fund, both named lead plaintiffs are to collect $9,500 and
nine other plaintiffs, who joined the action later, are to each get
$1,400.
The attorneys would bring home about $2.8 million, plus $35,917 for
expenses, if the judge approves the settlement. The attorneys'
proposed cut is "comfortably within the range" usually taken in
such cases, the attorneys said in quoting a 2010 federal district
court ruling.
Plaintiffs figured 3,150 people, who worked as assistant managers
since July 11, 2014, qualify for class membership. Each would
receive about $1,750, which is a "substantial percentage of the
average participant's alleged lost wages," plaintiffs said.
Excluded from the settlement are Bed Bath & Beyond assistant
managers who worked exclusively in New Jersey stores, and sued the
company in New Jersey state court and U.S. District Court for the
Southern District of New York.
Also, Rust Consulting, a Minneapolis-based settlement claims
administrator, will pick up $50,000 for its service.
Plaintiffs are represented by the New York City firms of Outten &
Golden, and Shavitz Law Group, as well as by Shulman Kessler, of
Melville, N.Y.
Defendants are represented by Greenberg Traurig, which has offices
in Chicago, New York City and Boston. [GN]
BED BATH: Hak Chu Says Website not Blind-Friendly
-------------------------------------------------
Kyo Hak Chu, individually and on behalf of all others similarly
situated v. Bed Bath & Beyond, Inc., dba Bed Bath and Beyond, and
Does 1 to 10, inclusive, Case No. 4:18-cv-07413 (N.D. Calif.,
December 10, 2018), is brought against the Defendants for
violations of the Americans with Disabilities Act of 1990 and
California's Unruh Civil Rights Act.
Because the Defendants' website, https://www.bedbathandbeyond.com/,
is not fully or equally accessible to blind and visually-impaired
consumers in violation of the ADA, the Plaintiff seeks a permanent
injunction to cause a change in Defendant's corporate policies,
practices, and procedures so that the Defendant's website will
become and remain accessible to blind and visually-impaired
consumers.
The Plaintiff is a resident of California, County of San Francisco.
Plaintiff is a legally blind, visually-impaired handicapped person,
and a member of a protected class of individuals under the ADA.
The Defendant Bed Bath and Beyond, Inc. is a New York corporation,
with its headquarters in Union, New Jersey. Defendant conducts a
large amount of its business in California, and the United States
as a whole. These home stores constitute places of public
accommodation. Defendant's stores provide to the public important
goods and services. Defendant's website provides consumers with
access to an array of goods and services including store locators,
information about appliances, home décor, furniture, lighting,
ceiling fans, paint, plumbing, building supplies, home security,
access to holiday specials and promotions, access to apply for
credit, and other products and services which are available online
and in retail stores for purchase. [BN]
The Plaintiff is represented by:
Bobby Saadian, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Tel: (213) 381-9988
Fax: (213) 381-9989
BELLA BUS: Sued by Walters Over Improper Wage Practices
-------------------------------------------------------
CHARLES WALTERS v. BELLA BUS CORP., TOTAL TRANSPORTATION CORP.,
AGOSTINO VONA, individually, JOHN CRONIN, individually, JOSEPH
SGRO, individually, Case No. 500649/2019 (N.Y. Sup., Kings Cty.,
January 10, 2019), is brought for damages and other legal and
equitable relief, on behalf of the Plaintiff and all others
similarly situated for alleged violations of the New York State
Labor Law, the New York Code of Rules and Regulations and the New
York Wage Theft Prevention Act.
The Plaintiff alleges that the Defendants engaged in illegal and
improper wage practices. These practices include: (a) failing to
pay the Plaintiff at the rate of time and one-half his base rate of
pay for hours worked over 40 in a week, and (b) failing to timely
pay the Plaintiff for all hours worked.
Bella Bus Corp. is a domestic corporation organized pursuant to the
laws of the state of New York with a principal place of business in
Brooklyn, New York. Total Transportation Corp. is a domestic
corporation organized pursuant to the laws of the state of New York
with a principal place of business in Brooklyn, New York. The
Individual Defendants are owners, officers or employees of the
Defendant Corporations.
The Defendants own and operate buses that drive routes throughout
New York State.[BN]
The Plaintiff is represented by:
Mark Gaylord, Esq.
BOUKLAS GAYLORD LLP
400 Jericho Turnpike, Suite 226
Jericho, NY 11753
Telephone: (516) 742-4949
Facsimile: (516) 742-1977
E-mail: mark@bglawny.com
BEST THAI: Court Denies Default Judgment Bid in U. Bazan Suit
-------------------------------------------------------------
The Supreme Court, New York County, issued a Decision and Order
denying Plaintiffs' Motion for Default Judgment in the case
captioned URIEL BAZAN, SERGIO CALLE, CRISOFORO PINEDA, DOMINGO
CALEL CHICOJ, REYNALDO VILLALBA MARTINEZ, FRANCISCO QUINO, URBANO
REYES, RODOLFO VILLANO, EDGAR ZEPEDA, Plaintiffs, v. BEST THAI ON
GRAMMERCY INC. (D/B/A RHONG-TIAM EXPRESS OR RHONG-TIAM), 31 EAST 21
EXPRESS INC. (D/B/A RHONG-TIAM EXPRESS OR RHONG-TIAM), BEST THAI ON
8 CORP. (D/B/A RHONG-TIAM EXPRESS OR RHONG-TIAM), RTC 18 CORP.
(D/B/A RHONG-TIAM EXPRESS OR RHONG-TIAM), 331 LEXINGTON RESTAURANT
CORP. (D/B/A RHONG-TIAM EXPRESS OR RHONG-TIAM), RACHAPAS
YANGEKSAKUL, KARNCHARNART LOO, Defendants. Docket No. 652915/2017,
Motion Seq. No. 001. (N.Y. Sup.).
In this action, inter alia, for breach of contract, or more
accurately, breach of a Settlement Agreement, the Plaintiffs move,
pursuant to CPLR 3215, for a default judgment against.
The Plaintiffs allege that, in order to settle a federal class
action suit, Index No. 15 Civ. 04830, brought by plaintiffs in the
Southern District of New York (SDNY), the parties herein executed a
Settlement Agreement wherein, in exchange for plaintiffs dropping
said class action suit, the defendants, Best Thai on Grammercy,
Inc, 31 East 21 Express, Inc. Best Thai on 8 Corp., RTC 18 Corp,
331 Lexington Restaurant Corp. and Rachapas Andy Yangeksakul a.k.a
Andy Yang, agreed to pay plaintiffs a total settlement amount of
$180,000.00.
The Defendants were to have made 20 consecutive monthly payments of
$8,100.00 until the Agreement was paid. The first of such payments
was to have been made on or before October 1, 2016. However, the
defendants failed to make that or any further payments to the
plaintiffs, thereby breaching the Agreement. Julien avers that that
the time for the defendants to answer has expired without the
defendant answering or appearing in this action.
CPLR 3215(a) provides, in pertinent part, that when a defendant has
failed to appear, plead or proceed to trial, the plaintiff may seek
a default judgment against him. It is well settled that on a motion
for leave to enter a default judgment pursuant to CPLR 3215, the
movant is required to submit proof of service of the summons and
complaint, proof of the facts constituting the claim, and proof of
the defaulting party's default in answering or appearing.
This Court notes that, although the plaintiffs submit an Affidavit
of Due Diligence relating to the service of the summons and
verified complaint, they fail to submit any proof of service, or
attempted service of the instant motion. Every affidavit of service
submitted by the plaintiffs references service of the summons and
verified complaint and, thus, the plaintiff has failed to establish
that the motion was properly served. Additionally, the plaintiffs
fail to submit sufficient proof of the facts constituting the
claim. The Court further notes the discrepancies between the named
plaintiffs and defendants in the captioned action as compared to
those in the SDNY action.
Such inconsistencies will need to be explained or corrected before
a default judgment is granted.
A full-text copy of the New York Supreme Court's January 3, 2019
Decision and Order is available at https://tinyurl.com/yabaqc3p
from Leagle.com.
BRIGHTWATER SUITES: Borozny Files Suit under ADA in Florida
-----------------------------------------------------------
Brightwater Suites LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Austin Borozny, individually and on behalf of all others
similarly situated, Plaintiff v. Brightwater Suites LLC, Defendant,
Case No. 8:19-cv-00135 (M.D. Fla., January 17, 2019).
Brightwater Suites LLC is a 2-star hotel.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
The Advocacy Group, LLC
200 SE 6th St Ste 504
Fort Lauderdale, FL 33301-3424
Tel: (954) 282-1858
Fax: (844) 786-3694
Email: jkerr@advocacypa.com
C TECH: Bromberg Sues Over Deceptive Debt Collection Practices
--------------------------------------------------------------
Jenna Bromberg, individually and on behalf of all others similarly
situated v. C. Tech Collections, Inc. and John Does 1-25, Case No.
2:18-cv-07019 (E.D. N.Y., December 10, 2018), seeks damages and
declaratory relief under the Fair Debt Collections Practices Act.
The Plaintiff brings this class action as a result of the
Defendant's deceptive, misleading and false debt collection
practices. The Plaintiff says the Defendant failed to deliver an
August 6, 2018 Letter to the Plaintiff's proper mailing address;
failed to properly inform the Plaintiff of her "G-Notice" rights;
and failed to communicate the consumers' requirements under the
FDCPA.
The Plaintiff is a resident of the State of New York, County of
Nassau, residing at 619 June Court, Valley Stream, NY 11581.
The Defendant C. Tech Collections, Inc. is a "debt collector" with
an address at 5505 Nesconset Highway, Suite 200, Mt. Sinai, NY
11766. [BN]
The Plaintiff is represented by:
Daniel Kohn, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Fax: (201) 282-6501
E-mail: dkohn@steinsakslegal.com
CABINETS TO GO: Hayden Seeks Unpaid Overtime Wages, Damages
-----------------------------------------------------------
Eva Hayden, Lona Hatmaker and others similarly situated,
Plaintiffs, v. Cabinets To Go, LLC, Defendant, Case No.
2:19-cv-00352 (E.D. La., January 17, 2019) was brought pursuant to
the Fair Labor Standards Act to recover unpaid overtime wages and
liquidated damages and reasonable attorney fees and costs pursuant
to FLSA.
Plaintiffs and their co-workers worked well in excess of forty
hours a week, being mandated to strictly clock out at 5:00 pm
everyday, yet still being requested and expected to stay late to
assist customers and clean and close the store. Specifically,
throughout the class period, Defendants have maintained a policy
and practice of requiring, suffering or permitting class members to
work in excess of forty hours in one workweek and to work all seven
days of some workweeks, without paying overtime compensation as
required by the FLSA.
Additionally, throughout the class period Defendant has withheld
due wages in the form of sales commissions that were earned prior
to termination or resignation by adopting a practice of not issuing
sales commissions until the Cabinets are delivered to the customer
and accepted by the customer and further not distributing said
commissions after resignation or termination, says the complaint.
Plaintiff, Eva Hayden, was and continues to be a resident of
Louisiana, with her current residence being the Parish of St.
Tammany, State of Louisiana.
Plaintiff, Lona Hatmaker, was and continues to be a resident of
Louisiana, with her current residence being the Parish of Orleans,
State of Louisiana.
Cabinets To Go, LLC, is a limited liability company organized and
existing under the laws of the State of Florida with its corporate
headquarters and domicile being the State of Tennessee.[BN]
The Plaintiffs are represented by:
John Butler, Esq.
LAW OFFICE OF JOHN BUTLER
3939 Causeway Blvd, Suite 301
Metairie, LA, 70002
Phone (504)-304-2335
Facsimile: (504)-321-2154
- and -
Zachary J. Delerno, Esq.
LAW OFFICE OF ZACHARY J. DELERNO
2901 Houma Blvd, Suite 1
Metairie, LA, 70006
Phone: (504) 217-5306
Fax: (504) 229-6725
Email: Zack@zjdlaw.com
CAMPBELL SOUP: Ingredient Class Action to Stay in Federal Court
---------------------------------------------------------------
Carrie Salls, writing for Madison-St. Clair Record, reported that
U.S. District Judge Nancy Rosenstengel denied remand to plaintiffs
in a "not natural" class action against Campbell Soup Co.
Lead plaintiffs Danielle Schwartz and Haunah Vanlaningham,
represented by David Nelson of Belleville, Matthew H. Armstrong of
Armstrong Law in St. Louis and L. Kirstine Rogers of Steckler
Gresham Cochran in Dallas, originally filed suit in June in St.
Clair County Circuit Court.
They allege that "Campbell Soup was unjustly enriched and violated
the Illinois Consumer Fraud and Deceptive Practices Act (ICFA) . .
. by deceptively and falsely representing that its soups were not
made with preservatives."
The proposed class would include Illinois customers who bought the
company's "Slow Kettle Style" tomato & sweet basil bisque, roasted
red pepper & smoked gouda bisque, New England clam chowder, "Home
Style" harvest tomato with basil, zesty tomato and/or "Home Style
Healthy Request" harvest tomato with basil products anytime in the
five-year period before the lawsuit was filed in St. Clair County.
They want the court to order Campbell Soup to reimburse the class
members for the cost of the soup, as well as pre-judgment and
post-judgment interest, attorney fees and court costs.
Vanlaningham claims she paid $2.49 for one of the soups in question
and Schwartz paid $3.89 for another. Both prices are considered
"typical of [what] all class members" paid for the different
soups.
In removing the case to federal court, Campbell Soup invoked the
court's jurisdiction under the Class Action Fairness Act.
However, lawyers for Schwartz and Vanlaningham -- who have filed
dozens of other similar cases -- asked that the case be moved back
to the circuit court, arguing that the amount of damages sought
does not meet the minimum $5 million required for the U.S. court to
have jurisdiction. They attempted to argue that the model used by
Campbell Soup to calculate the potential claims amount was
incorrect.
"The plaintiffs maintain Campbell fails to offer any proof of the
accurate measure of damages, which is the difference in value of
the soups as represented and as sold," Rosenstengel said in her
Jan. 8 order. "Despite these arguments, Campbell has sufficiently
proven that the potential damages in this case meet CAFA's
amount-in-controversy requirement." [GN]
CHARLOTTE, NC: DR Horton Questions Water/Wastewater Capacity Fees
-----------------------------------------------------------------
D.R. HORTON, INC.; D.R. HORTON-REGENT, LLC; TRUE HOMES, LLC; LENNAR
CAROLINAS, LLC; CALATLANTIC GROUP, INC. f/k/a CHEETAH CUB GROUP
CORP., successor by merger to CALATLANTIC GROUP, INC. f/k/a
STANDARD PACIFIC CORP., successor by merger to THE RYLAND GROUP,
INC; STANDARD PACIFIC OF THE CAROLINAS, LLC; WEEKLEY HOMES, LLC
d/b/a DAVID WEEKLEY HOMES f/k/a WEEKLEY HOMES, L.P.; SHEA BUILDERS,
LLC; SHEA CUSTOM, LLC; individually, and on behalf of all others
similarly situated v. CITY OF CHARLOTTE and CHARLOTTE WATER f/k/a
CHARLOTTE-MECKLENBURG UTILITY DEPARTMENT, Case No. 3:19-cv-00015
(W.D.N.C., January 11, 2018), is brought to remedy the Defendants'
alleged ultra vires violation of the Plaintiffs' substantive due
process rights by adopting, assessing, and collecting the unlawful
water and wastewater capacity fees as a mandatory condition to the
Defendants' furnishing future water and wastewater service to the
Plaintiffs' real properties.
The Plaintiffs are residential homebuilders, who conduct or have
conducted business within the service area of the Defendants' water
and wastewater systems and who have been required to pay the
Defendants' unlawful water and wastewater capacity fees as a
condition to their properties receiving the use of and services
furnished by the Defendants' water and/or wastewater systems in the
future, according to the complaint.
The City of Charlotte is a political subdivision of the state of
North Carolina as prescribed by Chapter 160A of the North Carolina
General Statutes with the capacity to sue and be sued.
Charlotte Water, formerly known as Charlotte-Mecklenburg Utility
Department, is a department of the City, which operates and manages
the water and wastewater systems for the City and Mecklenburg
County, including municipalities located in Mecklenburg
County.[BN]
The Plaintiffs are represented by:
James E. Scarbrough, Esq.
Madeline J. Trilling, Esq.
John F. Scarbrough, Esq.
SCARBROUGH & SCARBROUGH, PLLC
137 Union Street South
Concord, NC 28025
Telephone: (704) 782-3112
Facsimile: (704) 782-3116
E-mail: jes@sandslegal.net
mjt@sandslegal.net
jfs@sandslegal.net
- and -
James R. DeMay, Esq.
FERGUSON, HAYES, HAWKINS & DEMAY, PLLC
45 Church St. South
P.O. Box 444
Concord, NC 28026-0444
Telephone: (704) 788-3211
Facsimile: (704) 784-3211
E-mail: jdemay@fspa.net
COLD STORAGE: Court Dismisses R. McGinnis' BIPA Suit
----------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued a Memorandum Opinion and Order
granting Defendant's Motion to Dismiss in the case captioned
RICHARD McGINNIS, individually and on behalf of all others
similarly situated, Plaintiff, v. UNITED STATES COLD STORAGE, INC.,
Defendant. No. 17 C 08054. (N.D. Ill.)
U.S. Cold Storage initially moved to dismiss under Federal Rule of
Civil Procedure 12(b)(6), contending that McGinnis's claims are
time-barred by the applicable statute of limitations.
Richard McGinnis filed this class-action complaint against his
former employer, United States Cold Storage, Inc., alleging
violations of the Illinois Biometric Information Privacy Act. The
Act prohibits private entities from collecting a person's biometric
identifier including fingerprints unless that person has consented
and the private entity has provided certain disclosures.
McGinnis's claims arise out of U.S. Cold Storage's requirement that
employees scan their fingerprints or handprints3 in U.S. Cold
Storage's time-clock system as part of its time-tracking system.
McGinnis alleges that U.S. Cold Storage negligently violated the
Act by collecting, storing, and using McGinnis's biometric
identifiers and biometric information without obtaining written
releases and without providing required information to McGinnis.
McGinnis does not actually attempt to distinguish the reasoning of
these cases and has essentially forfeited the Article III standing
argument in his two-page position paper. The position paper
confuses two separate legal issues: what it means to be aggrieved
under the Illinois Biometric Privacy Act which is a question of
state statutory interpretation versus what it means to have
suffered an Article III injury-in-fact. McGinnis's position paper
relies entirely on a state court opinion that deals solely with the
state statutory interpretation issue.
To establish standing, a plaintiff must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.
The Illinois legislature found that (1) biometrics are uniquely
sensitive and when compromised, put individuals at a heightened
risk for identity theft (2) biometric technology is cutting edge,
and the full ramifications of biometric technology are not fully
known (3) the public is weary of using biometrics when tied to
personal information and (4) regulating biometric collection, use,
and storage serves the public interest. To those ends, the Act
requires that any private entity that possesses biometric
information or identifiers must develop and make available a
retention schedule and guidelines for destroying that information.
And even before collecting or storing biometric information or
identifiers, the private entity must provide certain information to
and obtain the consent of the person whose information is being
collected.
Here, there is no allegation that McGinnis did not know that his
fingerprint was being collected. Rather, he alleges that after U.S.
Cold Storage implemented its biometric time-tracking system in
2012, he was required to scan his fingerprint and/or handprint so
that U.S. Cold could use it as an authentication method to track
his time. McGinnis knew his fingerprints were being collected
because he scanned them in every time he clocked in or out of work,
and he knew they were being stored because the time-clock-scanned
prints were obviously being compared to a stored set of prints. All
other courts in this District that have considered whether a person
suffers a concrete injury from the known collection and retention
of a fingerprint, without disclosure to a third-party, have
answered the question no.
For a plaintiff to rely on a risk of future harm to satisfy Article
III's concrete injury requirement, the plaintiff must establish a
substantial risk that the future harm will occur. Nowhere in the
complaint is there any allegation of disclosure, other than a
speculative note that U.S. Cold fails to inform its workers.to whom
the [biometric] data is disclosed. That allegation does not come
close to the kind of situation in which the risk of future harm
satisfies Article III concreteness requirements. The mental anguish
alleged by McGinnis arises from the possible disclosure of his
biometric data, as well as the unknown period of retention.
But as discussed, McGinnis does not allege that his data was
already or is even likely to be compromised or disclosed, so any
emotional injury he suffers from that fear is a product of the sort
of hypothetical injury the Supreme Court has held cannot support
Article III standing. His anxiety about whether U.S. Cold will ever
delete his biometric information does not on its own constitute a
concrete injury because the mere retention of data does not in
itself cause an injury-in-fact absent a substantial risk of
disclosure. What's more, that fear of indefinite retention arises
out of the same underlying fear that the fingerprints will be
compromised or disclosed, which is too speculative to satisfy the
requirement of concrete injury under Article III.
The Court lacks subject matter jurisdiction because McGinnis has
not alleged a concrete injury sufficient to satisfy Article III.
The case is dismissed for lack of subject matter jurisdiction.
A full-text copy of the District Court's January 3, 2019 Memorandum
Opinion and Order is available at https://tinyurl.com/yaj9omgt
from Leagle.com
Richard McGinnis, individually and on behalf of all others
similarly situated, Plaintiff, represented by Lorraine Teraldico
Peeters, Caffarelli & Associates Ltd., Madeline K. Engel,
Caffarelli & Associates Ltd. & Alejandro Caffarelli, Caffarelli &
Associates Ltd.
United States Cold Storage, Inc., Defendant, represented by Anne E.
Larson -- anne.larson@ogletree.com -- Ogletree, Deakins, Nash,
Smoak & Stewart & Dana Perminas, Ogletree Deakins Nash Smoak &
Stewart PC.
CONSUMER REPORTS: Sullivan Suit Asserts Disabilities Act Breach
---------------------------------------------------------------
Consumer Reports, Inc. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Phillip Sullivan, Jr., on behalf of himself and all others
similarly situated, Plaintiff v. Consumer Reports, Inc., Defendant,
Case No. 7:19-cv-00407-NSR (S.D. N.Y., January 15, 2019).
Consumer Reports, Inc. provides product ratings and reviews. It
offers advice about products and services, personal finance, health
and nutrition, energy, food, gimmicks and gotchas, phones and
media, safety, and other consumer concerns. The company connects
with consumers through various channels, including its Consumer
Reports magazine; ConsumerReports.org website, a policy and
advocacy work of Consumers Union; and a range of issue-specific
publications and campaigns.[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Lee Litigation Group, PLLC
30 East 39th Street
2nd Floor
New York, NY 10016
Tel: (212) 465-1188
Fax: (212) 465-1181
Email: cklee@leelitigation.com
CV SCIENCES: Ct. Issues Service & Deadline Order in Derivative Suit
-------------------------------------------------------------------
The United States District Court for the District of Nevada issued
an Order regarding Service and the Deadline for All Defendants to
Answer or Move in the case captioned DAVID FRANCIS, derivatively on
behalf of CV SCIENCES, INC. formerly known as, CANNAVEST CORP.,
Plaintiff, v. MICHAEL MONA, JR., MICHAEL MONA III, JOSEPH D.
DOWLING, BART P. MACKAY, LARRY RASKIN, JAMES MCNULTY, GARY SLIGAR,
STEPHEN M. SCHMITZ and EDWARD A. WILSON, Defendants, and CV
SCIENCES, INC. formerly known as, CANNAVEST CORP., Nominal
Defendant. Case No. 2:18-cv-02284-GMN-NJK. (D. Nev.).
Two related putative class action cases are pending. One is pending
in the United States District Court for the Southern District of
New York styled as In re: CannaVest Corp., Securities Litigation,
Case No. 14-cv-2900 (New York Federal Securities Action). The
second related case is a recently filed putative class action
pending in the United States District Court, District of Nevada
entitled Ina v. CV Sciences, Inc., et al., Case No.
2:18-cv-01602-JAD-PAL (Nevada Federal Securities Action).
The New York Federal Securities Action is currently in the
discovery phase with a discovery cutoff date of October 18, 2019.
In the Nevada Federal Securities Action a Lead Plaintiff was
recently appointed and a Consolidated Complaint is due on or before
January 4, 2019.
The parties agree that the pleadings and discovery in the two
related putative class action cases are relevant to this action in
that developments in the related cases may help inform the manner
in which this action proceeds. Moreover, the parties intend to
discuss sharing discovery generated in the related cases in this
action to increase efficiency and conserve party resources.
A full-text copy of the District Court's January 3, 2019 Order is
available at https://tinyurl.com/y7tsflwt from Leagle.com.
David Francis, derivatively, Plaintiff, represented by Phillip Kim
-- pkim@rosenlegal.com -- The Rosen Law Firm, P.A., pro hac vice,
Timothy W. Brown, The Brown Law Firm, P.C., pro hac vice & Patrick
R. Leverty, Leverty & Associates Chtd.
CV Sciences, Inc., Nominal Defendant, represented by Patrick R.
Leverty, Leverty & Associates Chtd.
CVS RX: Cabrera Appeals Partial Judgment Ruling to 9th Cir.
-----------------------------------------------------------
Plaintiffs Sigfredo Cabrera and Enko Telahun filed an appeal from a
court ruling in their lawsuit entitled Sigfredo Cabrera, et al. v.
CVS RX Services, Inc., et al., Case No. 3:17-cv-05803-WHA, in the
U.S. District Court for the Northern District of California, San
Francisco.
As reported in the Class Action Reporter on Jan. 21, 2019, Judge
William Alsup 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 Enko Telahun as a pharmacist and pharmacy
manager between June 2013 and February 2017 and employed Sigfredo
Cabrera as a pharmacy tech trainee from January 2016 through
January 2017.
Mr. 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.
The appellate case is captioned as Sigfredo Cabrera, et al. v. CVS
RX Services, Inc., et al., Case No. 19-15059, in the United States
Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by February 8, 2019;
-- Transcript is due on March 11, 2019;
-- Appellants Sigfredo Cabrera and Enko Telahun's opening
brief is due on April 19, 2019;
-- Appellees CVS Pharmacy, Inc., CVS RX Services, Inc. and
Garfield Beach CVS, LLC's answering brief is due on May 20,
2019; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiffs-Appellants SIGFREDO CABRERA and ENKO TELAHUN are
represented by:
R. Craig Clark, Esq.
Monique R. Rodriguez, Esq.
CLARK LAW GROUP
205 W Date Street
San Diego, CA 92101
Telephone: (619) 239-1321
E-mail: cclark@clarklawyers.com
mrodriguez@clarklawyers.com
- and -
Walter L. Haines, Esq.
UNITED EMPLOYEES LAW GROUP
5500 Bolsa Ave.
Huntington Beach, CA 92649
Telephone: (562) 256-1047
E-mail: walter@whaines.com
Defendants-Appellees CVS RX SERVICES, INC., a New York corporation;
CVS PHARMACY, INC., a Rhode Island corporation; and GARFIELD BEACH
CVS, LLC, a California limited liability company, are represented
by:
Tyler Ryan Andrews, Esq.
GREENBERG TRAURIG, LLP
3161 Michelson Drive, Suite 1000
Irvine, CA 92612
Telephone: (949) 732-6500
E-mail: andrewst@gtlaw.com
- and -
James N. Boudreau, Esq.
Christiana Signs, Esq.
GREENBERG TRAURIG, LLP
2700 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
Telephone: (215) 988-7833
E-mail: boudreauj@gtlaw.com
signsc@gtlaw.com
DENKA PERFORMANCE: Chloroprene Emission Suit Remains in Dist. Court
-------------------------------------------------------------------
The United States District Court for the Eastern District of
Louisiana issued an Order and Reasons denying Plaintiffs' Motion to
Remand in the case captioned JUANEA L. BUTLER, individually and as
representative of all others similarly situated, v. DENKA
PERFORMANCE ELASTOMER, LLC, ET AL., SECTION "F". Civil Action No.
18-6685. (E.D. La.).
The Plaintiffs, who live, work, or attend school within 5.5 miles
of the PWF, allege that they are regularly exposed to unsafe levels
of chloroprene emitted from the facility, which exposes them to a
high risk for developing cancer. Ms. Butler and the putative class
seek damages in addition to declaratory relief, as well as an
injunction, enjoining Denka from emitting chloroprene at a level
exceeding .2 micrograms per cubic meter. Ms. Butler alleges that
Denka and DuPont could have prevented the excessive chloroprene
emissions but negligently failed to do so, failed to disclose or
warn the community of the high risk of exposure, and failed to
timely install necessary equipment to reduce emissions; that
Denka/DuPont had material safety data sheets related to the harmful
effects of exposure; and that the ultrahazardous activity calls for
absolute liability pursuant to Louisiana Code of Civil Procedure
article 2315.
Denka and DuPont removed the case to this Court, invoking this
Court's jurisdiction under the Class Action Fairness Act, 28 U.S.C.
Section 1332(d).
CAFA invests a federal court with subject matter jurisdiction over
a mass action where monetary claims of 100 or more persons,
involving common questions of law or fact, are proposed to be tried
jointly. Each individual plaintiff's claims must meet the
$75,000.00 jurisdictional amount in controversy and an aggregate
amount in controversy of $5 million must also be met. A court may
not exercise supplemental jurisdiction over claims that fail to
meet the individual $75,000.00 requirement even if other claims in
the mass action meet $75,000.00.
Here, the defendants submit that it is facially apparent that
CAFA's aggregate amount in controversy requirement is met. That
tens of thousands of plaintiffs seek injunctive relief,
compensatory damages, punitive damages, and attorney's fees
resulting from past (since 2011) and continuing chloroprene
exposure from the PWF satisfies the necessary pled amount in
controversy requirement.
To be sure, CAFA mandates that the Court lacks jurisdiction over
any plaintiff whose individual damages do not exceed $75,000. As
another Section of this Court has observed, however, it is an open
question in the Fifth Circuit whether the removing defendants must
show that only one, or at least 100 plaintiffs, seek more than
$75,000 to satisfy CAFA's amount in controversy requirement.
Here, the defendants have shown that it is facially apparent that
at least one plaintiff's request for injunctive relief coupled with
requests for punitive and compensatory damages6 as well as
attorney's fees exceeds the $75,000 jurisdictional threshold. And
the plaintiff does not identify which individual plaintiffs' claims
if any should be remanded for failure to meet the individual amount
in controversy requirement.
A full-text copy of the District Court's January 3, 2019 Order and
Reasons is available at https://tinyurl.com/y7c5sn8e from
Leagle.com.
Juanea L Butler, Individually and as representative of all others
similarly situated, Plaintiff, represented by Danny Dustin Russell,
Russell Law Firm, LLC.
Denka Performance Elastomer LLC, Defendant, represented by James
Conner Percy -- jpercy@joneswalker.com -- Jones Walker, Brett S.
Venn, Jones Walker -- bvenn@joneswalker.com -- Justin J. Marocco --
jmarocco@joneswalker.com -- Jones Walker, Michael A. Chernekoff --
mchernekoff@joneswalker.com -- Jones Walker & Michael R. Rhea --
mrhea@joneswalker.com -- Jones Walker.
DEPENDABLE CARE: Loses Bid to Dismiss Home Attendants' Wage Suit
----------------------------------------------------------------
The Supreme Court, New York County, issued a Decision and Order
denying Defendant's Motion to Dismiss the case captioned TRICIA
ROBERTS, individually and on behalf of all other persons similarly
situated who were employed by DEPENDABLE CARE, LLC d/b/a HOPETON
CARE and HOPETON CARE CDPAP, LLC along with other entities
affiliated or controlled by DEPENDABLE CARE, LLC d/b/a HOPETON CARE
and HOPETON CARE CDPAP, LLC, Plaintiff, v. DEPENDABLE CARE, LLC
d/b/a HOPETON CARE and HOPETON CARE CDPAP, LLC, Defendants. Docket
No. 161481/2017, Motion Seq. No. 001. (N.Y. Sup.).
The Plaintiff worked for the defendants as a home attendant tasked
with providing personal care services to homebound and elderly
people. Although the plaintiff did not reside in her clients'
homes, she worked more than 40 hours per week, generally, three to
seven 24-hour shifts a week, and occasional 4-hour shifts. The
Plaintiff was not given a one-hour break for her three daily meals.
The Plaintiff was paid a flat rate of $140 for approximately 12
hours of her 24-hour shifts, and received no overtime wages. Thus,
she was not compensated for the other 12 hours.
The Defendants contend that the plaintiff is precluded from
bringing a cause of action for breach of contract under the Home
Care Worker Wage Parity Law which applies only to work performed
under the Consumer Directed Personal Assistance Program (CDPAP)
after July 1, 2017, well after the plaintiff's period of
employment, and that all claims under the New York Labor Law for
minimum wage, overtime, and spread-of-hours pay are insufficiently
pleaded.
According to the defendants, the plaintiff fails to state the
number of hours worked, the amount she was paid, and the amounts of
hours she slept or how often she had to attend to a client. They
also maintain that the plaintiff's Labor Law claim for uniform
maintenance pay is insufficiently specific, absent any indication
of whether the uniforms were purchased by her, whether she received
uniform maintenance pay, and if she did, the amount and frequency
of the payments.
The Plaintiff's other breach of contract claim, asserted under New
York City Administrative Code Section 6-109, is also insufficiently
pleaded as the plaintiff's allegations are made solely based upon
information and belief and she fails to allege any contract between
defendants and New York City.
The Plaintiff argues that although the Wage Parity Law does not
apply to CDPAP for the period during which she worked for
defendants, she was employed as a home attendant, not as a consumer
directed personal assistant. Likewise, defendants' claim to provide
services only under CDPAP constitutes a misrepresentation, as they
are also a home care agency, which falls within the scope of the
Wage Parity Law.
In light of the liberal pleading standards of the Labor Law,
plaintiff maintains that her claims are sufficiently pleaded as she
provides the hours she worked and services she provided. Moreover,
she asserts, nonresidential home attendants are entitled to be paid
for every hour worked during a 24-hour shift regardless of whether
they were afforded opportunities for sleep and meals.
The Defendants assert that plaintiff disingenuously denies having
worked for a CDPAP as she alleges to have been employed
simultaneously by both defendants, one of which uses the acronym
CDPAP in its name. They reiterate their arguments pertaining to the
specificity of plaintiff's claims under the Labor Law and the
breach of contract claim under Administrative Code Section 6-109.
A pleading may be dismissed for a failure to state a cause of
action. In deciding the motion, the court must liberally construe
the pleading, accept the alleged facts as true, accord the
non-moving party the benefit of every possible favorable inference,
and determine only whether the alleged facts fit within any
cognizable theory.
The Plaintiff concedes that the Wage Parity Law does not apply to
CDPAP prior to July 2017, and thus, the only issue is whether she
worked for defendants as a consumer directed personal assistant or
as a home attendant. That one of the defendant's names contains the
acronym CDPAP does not constitute evidence. In any event, plaintiff
alleges that she was employed as a home care attendant, a
classification covered by the Wage Parity Law. Absent any
documentary evidence to the contrary and accepting all allegations
in the complaint as true, defendants fail to sustain their burden
of proof on this issue.
The Plaintiff alleges that she worked more than 40 hours per week
in three to seven 24-hour shifts a week, and that she was paid a
flat rate of $140 for 12 of the 24 hours per shift that she worked
and was not paid for the other 12 hours. At this stage of the
litigation, such allegations state a cause of action under either
the federal or state pleading standards and plaintiff need not
state the number of hours she slept or how often her sleep was
interrupted, as she did not live at the clients' premises. Thus,
defendants fail to demonstrate that plaintiff is not entitled to
minimum wage payments for her entire 24-hour shift.
As it is undisputed that defendants required that plaintiff wear a
uniform and that they neither laundered the uniform nor compensated
her for the additional cost of laundering it, they fail to
demonstrate that plaintiff's allegations are insufficient as a
matter of law.
A full-text copy of the New York Supreme Court's January 3, 2019
Decision and Order is available at https://tinyurl.com/yaju889d
from Leagle.com.
DISCOVER FINANCIAL: 4th Cir. Appeal Filed in Collins Suit
---------------------------------------------------------
Plaintiffs Asanti T. Collins and Bradley Clayton filed an appeal
from a court ruling in their lawsuit titled Asanti Collins, et al.
v. Discover Financial Services, et al., Case No. 8:17-cv-03011-PX,
in the U.S. District Court for the District of Maryland at
Greenbelt.
As reported in the Class Action Reporter on Dec. 18, 2018, Judge
Paula Xinis denied the Plaintiffs' motion to alter the Court's
judgment compelling arbitration in the case.
Plaintiffs Collins and Bradley Clayton both have Discover Card
accounts. They initially filed the suit as a class action
complaint in Montgomery County Circuit Court, alleging that various
practices of and among the Defendants when seeking to collect on
delinquent accounts are illegal under Maryland and federal consumer
protection laws, and that the Defendants violated certain other
applicable Maryland regulations.
The Plaintiffs seek declaratory and injunctive relief (Counts I and
II) and bring claims under various federal and state consumer
protection and licensing statutes (Counts III-IX), for unjust
enrichment (Count X), and for other ancillary relief (Count XI).
The Defendants removed the action to the Court based on federal
question jurisdiction.
The appellate case is captioned as Asanti Collins, et al. v.
Discover Financial Services, et al., Case No. 19-1050, in the
United States Court of Appeals for the Fourth Circuit.[BN]
Plaintiffs-Appellants ASANTI T. COLLINS, Individually on Behalf of
Themselves and all Others Similarly Situated, and BRADLEY CLAYTON,
Individually on Behalf of Themselves and all Others Similarly
Situated, are represented by:
Douglas Neil Gottron, Esq.
Terry Morris, Esq.
MORRIS PALERM, LLC
2 Barrister's Place
751 Rockville Pike
Rockville, MD 20852
Telephone: (301) 424-6290
Facsimile: (301) 424-6294
E-mail: dgottron@morrispalerm.com
tmorris@morrispalerm.com
Defendants-Appellees DISCOVER FINANCIAL SERVICES; DISCOVER BANK;
DISCOVER PRODUCTS, INC., Individually and as Successor by Merger
Together with DB Servicing Corporation; and U. S. BANK NATIONAL
ASSOCIATION, As Trustee for the Discover Card Master Trust I, are
represented by:
Daniel McKenna, Esq.
BALLARD SPAHR, LLP
1735 Market Street
Philadelphia, PA 19103-7599
Telephone: (215) 864-8321
E-mail: mckennad@ballardspahr.com
- and -
Jessica Hepburn Sadler, Esq.
John Darren Sadler, Esq.
BALLARD SPAHR, LLP
1909 K Street, NW
Washington, DC 20006-1157
Telephone: (202) 661-7658
E-mail: sadlerjh@ballardspahr.com
sadlerj@ballardspahr.com
DRAFTKINGS: Sued Over Sports Betting National Championship
----------------------------------------------------------
Ed Scimia, writing for Online Gambling, reported that the chaotic
ending to the first ever DraftKings Sports Betting National
Championship, which saw many competitors unable to place bets on
the final eligible game in the tournament, has led to a
class-action civil complaint being filed against the sportsbook
operator.
The complaint, brought by contestant Christopher Leong "on behalf
of himself and all others similarly situated," alleges that
DraftKings operated the tournament in a negligent and arbitrary
manner.
Tournament Ends in Controversy
The Sports Betting National Championship was a first-of-its-kind
event, a three-day tournament in which more than 250 players paid
$10,000 each to participate. Of that amount, $5,000 went towards
the $2.5 million guaranteed prize pool, while $5,000 was used as a
bankroll for the contest.
Contestants were then required to make a minimum of $1,000 in bets
over the course of Friday and Saturday, covering any events that
DraftKings offered wagering on. On Sunday, participants were
required to wager at least $2,000, and could only bet on the two
NFL playoff games being played that day.
One of the main issues covered by Leong's complaint is the manner
in which wagers were graded. That was a problem for professional
sports bettor Rufus Peabody, who was in first place after betting
his entire bankroll on the New England Patriots to cover against
the Los Angeles Chargers.
However, his winnings were not credited to his account until after
the start of the later playoff game between the New Orleans Saints
and the Philadelphia Eagles. That meant he could not get a bet in
on that game. Two players who did manage to bet on the late game
ultimately passed Peabody, meaning he finished in third place.
First place and a $1 million prize went to New Jersey poker dealer
Randy Lee.
While Peabody told ESPN that he is not currently part of the
lawsuit -- though he is still considering his legal options --
Leong has said he ran into similar issues. Speaking to ESPN, he
said that he had a problem with a fantasy points bet he made on
Saturday evening that didn't settle for more than 90 minutes after
a game ended, preventing him from accessing his full bankroll
during that time.
Betting Limits, Preferential Treatment Among Issues
Leong's complaint covers a variety of issues. Generally, it alleges
that the contest rules were "sparse in nature." It also argues
that without any announced betting limits, some large wagers were
processed arbitrarily, while others were rejected.
The lawsuit also alleges that some players saw winnings credited to
their accounts more quickly than others. In particular, it alleges
that players who were at the official viewing party location in
Jersey City were able to get bets settled more quickly than those
betting from other places in the state.
"It is truly disappointing to learn so many people lost their time
and money on a contest that was seemingly operated in an arbitrary
and capricious manner," attorney Maurice VerStandig, who is
representing Leong, said in a statement to ESPN. "We expect more
from our licensed gaming establishments, and, frankly, we expect
better from DraftKings and Resorts."
DraftKings has not publicly commented on the complaint. However,
the operator did tell ESPN that "Absolutely no SBNC competitors had
their bets graded/paid out on-site with the help of [DraftKings]
members."
Leong is seeking the repayment of his $10,000 buy-in, along with
treble damages under consumer protection laws, along with fees and
punitive damages of more than $330,000. [GN]
DYNAMIC RECOVERY: Faces Cunningham Suit for Violation of FDCPA
--------------------------------------------------------------
A class action lawsuit has been filed against Dynamic Recovery
Solutions LLC. The case is styled as Billie Michelle Cunningham,
individually and on behalf of all other similarly situated,
Plaintiff v. Dynamic Recovery Solutions LLC, Federal Pacific Credit
Company LLC and John Does 1-25, Defendants, Case No.
7:19-cv-00034-EKD (W.D. Va., January 17, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Dynamic Recovery Solutions LLC is a debt collection agency.[BN]
The Plaintiff is represented by:
Aryeh E. Stein
Meridan Law, LLC
600 Reisterstown Road, Suite 700
Baltimore, MD 21208
Tel: (443) 326-6011
Fax: (410) 653-9061
Email: astein@meridianlawfirm.com
DYNAMIC RECOVERY: Smith Files FDCPA Suit in South Carolina
----------------------------------------------------------
A class action lawsuit has been filed against Dynamic Recovery
Solutions LLC. The case is styled as Belicia Smith, individually
and on behalf of all others similarly situated, Plaintiff v.
Dynamic Recovery Solutions LLC, LVNV Funding LLC and John Does
1-25, Defendants, Case No. 2:19-cv-00135-DCN (D. S.C., January 15,
2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Dynamic Recovery Solutions LLC is a debt collection agency in
Greenville, SC.[BN]
The Plaintiff is represented by:
Kenneth Edward Norsworthy , Jr, Esq.
Norsworthy Law Ltd Co
505 Pettigru Street
Greenville, SC 29601
Tel: (864) 804-0581
Fax: (864) 756-1153
Email: kenorsworthy@me.com
ERIKA PADRON: Urquilla Rodriguez Sues Over Unpaid Wages
-------------------------------------------------------
Ismael Urquilla Rodriguez, on behalf of himself and all others
similarly situated, Plaintiff, v. Erika Padron Gutierrez d/b/a
Quick Clean Padron 1, Herman & Kittle Properties, Inc., ATA
Painting & Construction Services LLC, Alex T. Alexiou, and AM Pro
Installers LLC, Defendants, Case No. 3:19-cv-00092 (M.D. Tenn.,
January 17, 2019)is a collective action seeking to remedy
violations of the Fair Labor Standards Act of 1938 ("FLSA"). The
Plaintiff asserts that the Defendants have violated the FLSA's wage
and overtime provisions.
H&K hired ATA, Alexiou, Padron, and AM Pro as contractors to work
at The Reserve during the period relevant to this action. Padron
hired Mr. Rodriguez to work for Defendants painting apartments at
The Reserve. Padron also hired approximately twenty other painters
at or near the time she hired Mr. Rodriguez. Defendants know the
identities of the members of the Putative Class.
The complaint says the Plaintiff Mr. Rodriguez and the Putative
Class regularly worked in excess of forty hours per workweek;
Defendants did not pay them for all hours worked under forty and
did not pay them the FLSA time-and-a half wage premium for hours
worked over forty. The Defendants' time records for Mr. Rodriquez
and the Putative Class are incomplete, inaccurate, or
non-existent.
The Defendants owe Mr. Rodriguez at least $8,844.50 in unpaid wages
and overtime compensation for the work he performed during his
employment, adds the complaint.
Plaintiff Mr. Rodriguez is an individual; he resides in Wilson
County, Tennessee. Mr. Rodriguez was an "employee" of Defendants,
as defined by the FLSA.
Erika Padron Gutierrez is an individual who resides in Davidson
County, Tennessee and operates a sole proprietorship doing business
as Quick Clean Padron 1.
H&K is a for-profit corporation, organized under the laws of
Indiana, and registered to do business in Tennessee. H&K owns and
operates an apartment complex known as The Reserve at Oakleigh
Apartments, which is located at 3562 Pin Hook Road, Antioch,
Tennessee 37013.
ATA is a foreign limited liability company, organized under the
laws on Indiana and doing business in Tennessee.
Alexiou is an individual and the owner of ATA; on information and
belief, he resides in Marion County, Indiana.
AM Pro is a foreign limited liability company, organized under the
laws of Alabama and doing business in Tennessee.[BN]
The Plaintiff is represented by:
Charles P. Yezbak, III, Esq.
N. Chase Teeples, Esq.
YEZBAK LAW OFFICES PLLC
2002 Richard Jones Road, Suite B-200
Nashville, TN 37215
Phone: (615) 250-2000
Fax: (615) 250-2020
Email: yezbak@yezbaklaw.com
teeples@yezbaklaw.com
ESTATES NY REAL ESTATE: Faces Fischler Suit Under ADA
-----------------------------------------------------
Estates NY Real Estate Services LLC is facing a class action
lawsuit filed pursuant to the Americans with Disabilities Act. The
case is styled as Brian Fischler, individually and on behalf of all
other persons similarly situated, Plaintiff v. Estates NY Real
Estate Services LLC doing business as: Kings and Queens Leasing,
Defendant, Case No. 1:19-cv-00304 (E.D. N.Y., January 16, 2019).
Estates NY Real Estate Services LLC offers Brooklyn and Queens
apartments for rent.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
- and -
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
FIVE FOUR GROUP: Fischler Suit Alleges ADA Violation
----------------------------------------------------
Five Four Group, LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Brian Fischler, individually and on behalf of all other persons
similarly situated, Plaintiff v. Five Four Group, LLC doing
business as: Menlo Club, Defendant, Case No. 1:19-cv-00305 (E.D.
N.Y., January 16, 2019).
Five Four Group, LLC produces apparel for men. It provides
t-shirts, jeans and pants, button downs, jackets and outerwear,
sweaters and sweatshirts, hats, and polos.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
- and -
Christopher Howard Lowe, Esq.
Lipsky Lowe LLP
630 Third Avenue
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: chris@lipskylowe.com
GLUNZ OCEAN: Violates Disabilities Act, Honeywell Suit Says
-----------------------------------------------------------
Glunz Ocean Beach Club Resort LLC is facing a class action lawsuit
filed pursuant to the Americans with Disabilities Act. The case is
styled as Cheri Honeywell, individually and on behalf of all others
similarly situated, Plaintiff v. Glunz Ocean Beach Club Resort LLC,
a Florida limited liability company, Defendant, Case No.
4:19-cv-10011-JLK (S.D. Fla., January 16, 2019).
Glunz Ocean Beach Club Resort LLC is a 3-star hotel.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
Jessica L. Kerr, P.A. dba The Advocacy Group
200 S.E. 6th Street, Suite 504
Fort Lauderdale, FL 33301
Tel: (954) 282-1858
Fax: (844) 786-3694
Email: service@advocacypa.com
GOOGLE LLC: Slapped With EUR50MM Fine by France
-----------------------------------------------
Allison Schiff, writing for Ad Exchanger, reported that France's
data protection authority issued a 50 million euro fine against
Google for failing to comply with the General Data Protection
Regulation.
Not only was Google found not to have the proper consents in place
from its users to collect and process data for personalization and
ad targeting, it may not even have a legal basis to do so at all
since users are so ill informed about what Google wants to do with
their data.
Google relies on consent to process user data for personalization
purposes.
According to the CNIL (the Commission nationale de l'informatique
et des libertes), Google's process for obtaining consent isn't
transparent or specific enough and doesn't give users the
information they need to make an informed decision.
The CNIL also claims that Google's approach to data collection is
"particularly massive and intrusive" because it doesn't gather
consent for ad personalization for each of Google's different
services separately, including Search, YouTube, Google Home, Google
Maps, the Play Store, Google Photo and others.
In other words, Google was found to have committed a cardinal sin
under GDPR, which states that a company must obtain consent for
each specific way it wants to use personal data. Google also
pre-checks boxes by default during the consent gathering process,
which is another major GDPR no-no.
The CNIL's ruling follows a series of complaints filed by two
nonprofit groups, La Quadrature du Net and None Of Your Business
(NOYB), both of which accused Google of not having a legal basis
for processing the personal data of its users.
None Of Your Business is led by Max Schrems, the Austrian lawyer
and privacy campaigner responsible for bringing the 2013 legal
challenge against Facebook's international data-sharing practices
that ultimately overturned the Safe Harbor agreement.
On May 25, 2018, the day GDPR went into effect in Europe, Schrems
and None Of Your Business filed a class action lawsuit against
Google for "coercing" its users into giving consent for data
collection, which is what the CNIL is now reacting to. Schrems also
filed suits against Facebook, Instagram and WhatsApp that day, so
another shoe may yet drop impacting Google's co-duopolist.
The NOYB suits were filed in France, Austria, Belgium and Hamburg,
Germany -- all jurisdictions with active data protection
authorities.
"These places were not chosen arbitrarily or by accident," noted
Dominique Shelton, co-chair of the ad tech privacy and data
management practice at Perkins Coie, in a previous interview.
Until now, the CNIL had focused most of its attentions on the
little guys, using public enforcement actions to make an example of
smaller companies. These companies, mainly French ad tech startups
focused on the location data space, were given time to mend their
ways rather than being hit with a fine right off the bat.
The CNIL's action against Google could be "a symbolic message sent
to show that not only small companies are targeted by the CNIL --
even if 50 million euros is probably only 15 days' worth of Google
France's revenue," a French ad tech executive told AdExchanger.
The fine against Google, which translates to roughly $57 million,
is the largest GDPR-related penalty to date and the first time
either Google or Facebook is being called to task for running afoul
of Europe's new privacy laws. But it is also chump change for
Google, whose ads business brings in billions every quarter.
However, the ruling is portentous for how European regulators feel
about the duopoly: wary of large, US-based technology companies and
more than willing to crack down.
In July of last year, the European Union hit Google with a $5.1
billion fine for breaking antitrust laws for striking deals with
phone manufacturers to favor its Android operating system. [GN]
GREENSKY INC: Bradley Yu Sues over Misleading Financial Report
--------------------------------------------------------------
BRADLEY YU, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, vs. GREENSKY, INC., DAVID ZALIK, ROBERT
PARTLOW, JOEL BABBIT, GERALD BENJAMIN, JOHN FLYNN, GREGG FREISHTAT,
NIGEL MORRIS, ROBERT SHEFT, GOLDMAN SACHS & CO. LLC, J.P. MORGAN
SECURITIES LLC, MORGAN STANLEY & CO. LLC, SUNTRUST ROBINSON
HUMPHREY, INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INC.,
CITIGROUP GLOBAL MARKETS INC., CREDIT SUISSE SECURITIES (USA) LLC,
RAYMOND JAMES & ASSOCIATES, INC., GUGGENHEIM SECURITIES, LLC,
SANDLER O'NEILL & PARTNERS, L.P., AND FIFTH THIRD SECURITIES, INC.,
the Defendants, Case No. 1:19-cv-00100 (S.D.N.Y., Jan. 4, 2019),
seeks to pursue remedies under the Securities Act of 1933.
The case is a federal securities class action on behalf of
individuals who purchased or otherwise acquired GreenSky Class A
common stock pursuant or traceable to the Company's false and
misleading registration statement and prospectus. GreenSky is a
financial technology company in Atlanta, Georgia, and runs an
online platform that allows creditors to process loan applications
at the point of sale. GreenSky's platform is actively used by over
10,000 businesses. Consumers use GreenSky's mobile app to make
purchases from those listed business by applying for on-the-spot
financing via the app.
GreenSky's two principal sources of revenue are (i) "transaction
fees" the Company receives upfront when a consumer secures a loan
through the GreenSky platform and makes a purchase; and (ii)
recurring fees generated from banks over the lives of loans it
facilitates. Transaction fees are critical to GreenSky's business.
For example, transaction fees accounted for 87% of the Company's
revenue in 2017. These transaction fees vary per the particular
agreement between GreenSky and a merchant. GreenSky traditionally
catered to businesses in the home improvement and solar energy
market. GreenSky charged solar panel business substantially higher
transaction fees as compared to others on its platform. GreenSky
charged merchants a 7% transaction fee on average, as compared to
the typical 14% transaction fee it applied to solar panel
merchants.
Currently, GreenSky is moving into the elective healthcare market,
wherein the Company charges lower-than-average transaction fees.
GreenSky has simultaneously started moving away from its business
with solar panel merchants. Approximately 20% of GreenSky's
transaction-fee revenue came from solar panel merchants in the
years leading up to 2018. Starting in 2018, however, GreenSky made
merely 4% of its revenue in transaction fees from solar panel
businesses. Thus, following this transition away from the solar
power business and towards the elective healthcare market,
GreenSky's transaction-fee revenue significantly declined and will
foreseeably continue to do so absent a change in focus back to its
solar power business. On April 27, 2018, GreenSky filed a
registration statement. Then, on May 25, 2018, GreenSky filed a
prospectus for its upcoming initial public offering ("IPO").
GreenSky's registration statement and prospectus are referred to as
the "Offering Documents."
On May 29, 2018, GreenSky's IPO closed and the Company sold 43.7
million shares of Class A common stock at $23.00 per share in its
IPO, for gross proceeds of over $1 billion. The Offering Documents
were negligently prepared and, as a result, contained untrue
statements of material facts or omitted to state other facts
necessary to make the statements made not misleading, and were not
prepared in accordance with the rules and regulations governing
their preparation as the Offering Documents failed to disclose: (i)
that GreenSky was transitioning away from the solar power market in
favor of the elective healthcare market; (ii) foreseeable negative
effects on GreenSky's profits because of significant differences in
transaction fees GreenSky charged to different classes of
merchants; (iii) the primacy of the merchant mix as a driver of
GreenSky's transaction-fee revenue; (iv) the ongoing deterioration
in GreenSky's transaction-fee revenue, while touting GreenSky's
growth and financial performance; (v) the negative impacts of
GreenSky's changing merchant mix on EBITDA; (vi) the markedly lower
transaction fees GreenSky charges to healthcare companies; and
(vii) as a result of the foregoing, GreenSky's Offering Documents
were materially false and misleading at all relevant times.
On August 7, 2018, GreenSky issued a release announcing its
financial results for the second quarter of 2018. The release
indicated that the Company's transaction-fee rate was approximately
53 basis points below the rate achieved in the second quarter of
2017. In an earnings call, Defendant Zalik acknowledged that this
rapid reduction was attributable to the transition away from solar
panel merchants and toward elective healthcare companies. On
November 6, 2018, GreenSky lowered its full year 2018 transaction
volume guidance from between $5.1 and $5.3 billion to between $4.9
and $5.1 billion, and lowered its full year 2018 Adjusted EBITDA
guidance from between $192 and $199 million to between $165 and
$175 million. GreenSky attributed the reduction to a general labor
shortage and unfavorable shifts in its loan mix.
Following these disclosures, GreenSky's stock price closed at $9.28
per share, a decline of $13.72, or approximately 60%, from the IPO
price of $23.00 per share. 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.[BN]
Attorneys for Plaintiff:
Jeremy A. Lieberman, Esq.
Jonathan Lindenfeld, Esq.
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
jlindenfeld@pomlaw.com
pdahlstrom@pomlaw.com
HEATHERWOOD APARTMENTS: Violates Disabilities Act, Fischler Asserts
-------------------------------------------------------------------
Heatherwood Apartments LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Brian Fischler, individually and on behalf of all other persons
similarly situated, Plaintiff v. Heatherwood Apartments LLC and
Yardi Systems, Inc., Defendants, Case No. 1:19-cv-00300 (E.D. N.Y.,
January 15, 2019).
Heatherwood Apartments LLC offers apartment for rent.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
Lipsky Lowe LLP
630 Third Avenue
Fifth Floor
New York, NY 10017
Tel: (212) 392-4772
Fax: (212) 444-1030
Email: doug@lipskylowe.com
HIGHER PICTURES: Photo Gallery Hit With ADA Class Action
--------------------------------------------------------
Higher Pictures LLC is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Higher Pictures LLC, Defendant, Case No.
1:19-cv-00436 (S.D. N.Y., January 15, 2019).
Higher Pictures is a photography gallery in New York.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
HOUK GALLERY: Faces Class Action for ADA Violation
--------------------------------------------------
Houk Gallery, Inc. is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Houk Gallery, Inc., Defendant, Case No.
1:19-cv-00438 (S.D. N.Y., January 15, 2019).
Houk Gallery, Inc. a photography gallery specializing in masters of
twentieth-century photography with an emphasis on the 1920s and
1930s as well as contemporary photography. Houk founded the gallery
in 1980. Today, Houk Gallery has locations at 745 Fifth Avenue in
New York City.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
HOUSTON BAPTIST: Court Denies Bid to Dismiss D. Hicks' TCPA Suit
----------------------------------------------------------------
The United States District Court for the Eastern District of North
Carolina, Western Division, issued an Order denying Defendant's
Motion to Dismiss the case captioned DEANNA HICKS, individually and
on behalf of all others similarly situated, Plaintiff, v. HOUSTON
BAPTIST UNIVERSITY, a Delaware Corporation, Defendant. No.
5:17-CV-629-FL. (E.D.N.C.).
The Plaintiff commenced this action alleging defendant violated the
Telephone Consumer Protection Act (TCPA). Specifically, the
plaintiff alleges under two different provisions of the TCPA that
the defendant made unwanted solicitation telephone calls to the
plaintiff and other members of the autodialed no consent class
members' cellular telephones without their prior express consent
using an autodialer.
Here, the defendant timely raised an objection to personal
jurisdiction in its first responsive pleading, its original answer.
Defendant's first pleading states defendant denies that the court
has personal jurisdiction over the defendant and denies any
remaining allegations contained in paragraph 9.
The Plaintiff argues that the defendant's motion is untimely. The
Court finds that the defendant properly preserved its personal
jurisdiction defense by asserting it in its original answer, and
again in its amended answer. Therefore, the plaintiff's argument
that the defendant waived its personal jurisdiction defense is
without merit.
To decide whether specific jurisdiction exists, the Court examines
(1) the extent to which the defendant purposefully availed itself
of the privilege of conducting activities in the State (2) whether
the plaintiffs' claims arise out of those activities directed at
the State and (3) whether the exercise of personal jurisdiction
would be constitutionally reasonable.
The Defendant has minimum contacts sufficient to show that it
purposefully availed itself of the privilege of conducting
activities in the State. The Plaintiff's complaint alleges that she
resides in North Carolina, and that she received two phone calls
from the defendant's agent. Although the plaintiff does not
specifically allege in her complaint that she received the phone
calls in the State of North Carolina, the court draws a reasonable
inference in favor of the plaintiff that she received these phone
calls in or around the location where she resides.
Moreover, the contacts are related to the dispute at issue. The
Plaintiff is suing for violations of the TCPA, and she was called
by the defendant over the telephone while she was a resident of
North Carolina. Finally, exercise of personal jurisdiction is
constitutionally reasonable. The Defendant has not shown that
litigating this case in this court would constitute an undue
hardship to it, and the plaintiff's choice of forum should be given
some weight in determining whether the choice of forum is fair.
Therefore, the court has specific personal jurisdiction over the
defendant. Consequently, the court denies the defendant's motion to
dismiss for lack of personal jurisdiction as to the plaintiff.
Based on this, the defendant's motion to dismiss for lack of
personal jurisdiction is denied.
A full-text copy of the District Court's January 3, 2019 Order is
available at https://tinyurl.com/ya7znsxb from Leagle.com.
Deanna Hicks, on behalf of herself and all others similarly
situated, Plaintiff, represented by Avi R. Kaufman, Kaufman P.A.,
Stefan Coleman, Stefan Colema & Ted Lewis Johnson, Ted Lewis
Johnson, Attorney at Law.
Houston Baptist University, a Delaware Corporation, Defendant,
represented by Elizabeth Zwickert Timmermans --
eztimmermans@mcguirewoods.com -- McGuireWoods, LLP, Robert A.
Muckenfuss -- rmuckenfuss@mcguirewoods.com -- McGuireWoods, LLP &
Susan E. Groh -- sgroh@mcguirewoods.com -- McGuireWoods LLP.
HOWARD GREENBERG: Dawson Suit Alleges ADA Breach
------------------------------------------------
Howard Greenberg Gallery, LLC is facing a class action lawsuit
filed pursuant to the Americans with Disabilities Act. The case is
styled as Deshawn Dawson, on behalf of himself and all others
similarly situated, Plaintiff v. Howard Greenberg Gallery, LLC,
Defendant, Case No. 1:19-cv-00442 (S.D. N.Y., January 15, 2019).
Howard Greenberg Gallery, LLC operates a gallery to exhibit
photojournalism and street photography. It was formerly known as
Photofind Gallery, Inc. and changed its name to Howard Greenberg
Gallery, LLC in 1991. Howard Greenberg Gallery, LLC was founded in
1981 and is based in New York, New York.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
INTERNATIONAL PAPER: Slocum Wants to File Cert. Bid by April 15
---------------------------------------------------------------
The Plaintiffs in the proceedings titled SHIRLEY SLOCUM, ET AL. v.
INTERNATIONAL PAPER COMPANY, ET AL.; DERRICK SANDERS, ET AL. v.
INTERNATIONAL PAPER, ET AL.; and JARRELL, ET AL. v. INTERNATIONAL
PAPER COMPANY, ET AL., Case Nos. 2:16-cv-12563-EEF-JVM, 16-12567,
16-13346 and 16-13793 (E.D. La.), move the Court to extend the
deadline for filing for class certification until April 15, 2019,
or such other date as deemed appropriate by the Court.
The Plaintiffs represent that counsel for the Defendant has
confirmed that it has no objection to extending the Deadline for
Filing for Class Certification until April 15, 2019, but does not
agree with the remainder of the issues addressed in the Motion.
According to the Motion, it is anticipated that the Filing for
Class Certification will largely tract the Motion for Class
Certification, which will request Class Certification of the Map of
affected claimants tracking the Court's decision in USDC-EDLA
05-4206 Murphy Oil Class Action Litigation. Likewise, the evidence
presented would be the virtually the same for both parties should
the Honorable Court decide to conduct a Daubert hearing on the
plume trajectories or Map of affected areas from the single source
rupture of the Evaporator at the IP Bogalusa Paper Mill on or about
June 10, 2015. The Court has currently set the deadline for filing
motions in limine, including Daubert motions on March 19, 2019,
which would permit submission on April 3, 2019.
In addition, the Plaintiffs state, this would be virtually the same
evidence presented at the trial scheduled before the Court on May
13, 2019, in this matter. As such, the Honorable Court may deem it
appropriate to entertain the Class Certification hearing after the
evidence has been presented at the trial of this matter.
For the purposes of judicial efficiency and costs of securing the
same expert testimony at multiple hearings, clarity is requested
from the Honorable Court on the scheduling of the upcoming Daubert
Motions, Trial and Class Certification Hearing and for this
Honorable Court to set an appropriate date for the Deadline for
Plaintiffs to File for Class Certification.[CC]
The Plaintiffs are represented by:
Shawn C. Reed, Esq.
HOWARD REED & PEDERSEN
516. N. Columbia Street
Covington, LA 70433
Telephone: (985) 893-3607
Facsimile: (985) 893-3478
E-mail: sreed@howardandreed.com
- and -
D. Douglas Howard, Jr., Esq.
Jonathan C. Pedersen, Esq.
HOWARD REED & PEDERSEN
839 St. Charles Avenue, Suite 306
New Orleans, LA 70130
Telephone: (504) 581-3610
Facsimile: (504) 581-7509
E-mail: dhoward@howardandreed.com
jcpedersen@howardandreed.com
JAECKEL GALLERY: Faces Class Suit Under Disabilities Act
--------------------------------------------------------
Jaeckel Gallery LLC is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Jaeckel Gallery LLC, Defendant, Case No.
1:19-cv-00444 (S.D. N.Y., January 15, 2019).
Jaeckel Gallery LLC used for exhibiting a collection of recent
works in New York.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
JANE KAHAN: Dawson Files Suit under ADA in S.D. New York
--------------------------------------------------------
Jane Kahan Gallery, Ltd. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Jane Kahan Gallery, Ltd., Defendant, Case
No. 1:19-cv-00518 (S.D. N.Y., January 17, 2019).
The Jane Kahan Gallery is an art gallery located in New York City
that deals almost exclusively with modern art in a variety of media
including: works on paper, sculpture, and paintings.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
JASON MCCOY: Dawson Brings Class Suit Under ADA
-----------------------------------------------
Jason Mccoy Inc. is facing a class action lawsuit filed pursuant to
the Americans with Disabilities Act. The case is styled as Deshawn
Dawson, on behalf of himself and all others similarly situated,
Plaintiff v. Jason Mccoy Inc., Defendant, Case No. 1:19-cv-00520
(S.D. N.Y., January 17, 2019).
Jason McCoy Inc is a contemporary art gallery established in 1982.
The gallery represents an international group of contemporary
artists in painting, drawing, photography, video, sculpture, and
installation. Since 1989, the gallery has been located in the
Fuller Building in Midtown, New York City.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
JTEKT CORP: Direct Purchaser Class Certification Bid Denied
-----------------------------------------------------------
In the class action lawsuit IN RE: AUTOMOTIVE PARTS ANTITRUST
LITIGATION, Case No. 2:12-cv-00501-MOB-MKM (E.D. Mich.), the Hon.
Judge Marianne O. Battani entered an order on Jan. 7, 2019, denying
Direct Purchaser Plaintiffs' March 20, 2017 motion for class
certification.
Judge Battani said she is satisfied that a class action would be
"superior to other available methods for fairly and efficiently
adjudicating the controversy." Fed. R. Civ. P. 23(b)(3).
Nonetheless, because the DPPs have not satisfied the other
requirement of Rule 23(b)(3) -- namely, that "questions of law or
fact common to class members predominate over any questions
affecting only individual members" -- the Court finds that the DPPs
have not demonstrated a basis under Rule 23(b) for pursuing the
class action proposed in their motion.
The three Plaintiffs -- DALC Gear & Bearing Supply Corp., McGuire
Bearing Company, and Sherman Bearings Inc. -- brought this suit on
behalf of a class of direct purchasers of bearings, alleging that
the Defendant manufacturers and suppliers engaged in a horizontal
conspiracy to fix the prices of steel ball and roller bearings in
violation of Section 1 of the Sherman Act. Specifically, the DPPs
allege that Defendants conspired (i) with respect to the amount and
timing of price increases due to increased steel costs, (ii) to rig
bids, fix prices, and allocate markets for bearings in connection
with customer requests for quotations, and (iii) in their responses
to annual price reduction requests from customers.
The request for certification encompasses the manufacturers and
suppliers named as Defendants in this suit -- including JTEKT
Corporation and JTEKT North America Corporation, f/k/a Koyo
Corporation of U.S.A.; Nachi-Fujikoshi Corp. and Nachi America Inc.
; NSK Ltd. and NSK Americas, Inc.; NTN Corporation and NTN USA
Corporation; and Schaeffler Group USA Inc. -- as well as SKF USA
Inc., SKF GmbH, and AB SKF, which have been named as Defendants in
a follow-on suit brought by the DPPs. Through their present
motion, the DPPs seek to certify a class that consists of "[a]ll
individuals and entities that purchased Bearings in the United
States from one or more of the Defendants, SKF USA Inc., or their
parents, subsidiaries, affiliates, or joint ventures, from and
including April 1, 2004 through December 31, 201[4]."[CC]
KEITH DE LELLIS: Violates ADA, Dawson Suit Asserts
--------------------------------------------------
Keith De Lellis Gallery, LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Keith De Lellis Gallery, LLC, Defendant,
Case No. 1:19-cv-00521 (S.D. N.Y., January 17, 2019).
Keith de Lellis Gallery LLC operates as a recreational center. The
Company organizes art exhibitions.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
KENTUCKY: Seeks 6th Cir. Review of Ruling in Arriola Inmate Suit
----------------------------------------------------------------
Defendants J. Michael Brown, KY, Commonwealth of Kentucky
Corrections Department, Chris E. Cropp, LaDonna L. Thompson and
John Tilley filed an appeal from a court ruling in the lawsuit
styled Antonio Arriola, et al. v. KY, et al., Case No.
3:17-cv-00100, in the U.S. District Court for the Eastern District
of Kentucky at Frankfort.
As reported in the Class Action Reporter on Jan. 15, 2019, the
District Court issued a Memorandum Opinion and Order granting the
Plaintiffs' Request for an Interim Award of Attorneys' Fees in the
case.
The Plaintiffs in this matter are a certified class of current and
former inmates in the care and custody of Defendants Commonwealth
of Kentucky, Kentucky Department of Corrections (KDOC), and
Kentucky Justice and Public Safety Cabinet (the Cabinet).
In the Memorandum Opinion and Order, the District Court directed
the Defendants to pay the Plaintiffs a total of $222,131 in
attorneys' fees for the work performed by Mr. Gregory Belzley and
Ms. Camille Bathurst; and to pay the Plaintiffs a total of $6,313
for litigation costs.
The appellate case is captioned as Antonio Arriola, et al. v. KY,
et al., Case No. 19-5036, in the United States Court of Appeals for
the Sixth Circuit.[BN]
Plaintiffs-Appellees ANTONIO ARRIOLA, KEATH BRAMBLETT, CHRISTOPHER
HOPPER, WALTER A. NOLAND, DONALD ROBERTS and DAVID ALLEN VOYLES,
Individually and on behalf of all others similarly situated, are
represented by:
Gregory A. Belzley, Esq.
BELZLEY, BATHURST & BENTLEY
P.O. Box 278
Prospect, KY 40059
Telephone: (502) 292-2452
E-mail: gbelzley@aol.com
Defendants-Appellants COMMONWEALTH OF KENTUCKY, COMMONWEALTH OF
KENTUCKY CORRECTIONS DEPARTMENT, J. MICHAEL BROWN, LADONNA L.
THOMPSON, CHRIS E. CROPP and JOHN TILLEY, Individually, are
represented by:
Angela T. Dunham, Esq.
COMMONWEALTH OF KENTUCKY
125 Holmes Street, Second Floor
Frankfort, KY 40601
Telephone: (502) 564-8207
E-mail: angela.dunham@ky.gov
KER HOLDINGS: Borozny Suit in Fla. Asserts ADA Breach
-----------------------------------------------------
Ker Holdings Beachview LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Austin Borozny, individually and on behalf of all others
similarly situated, Plaintiff v. Ker Holdings Beachview LLC,
Defendant, Case No. 8:19-cv-00134 (M.D. Fla., January 17, 2019).
Ker Holdings Beachview LLC is a Florida Limited Liability
Company.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
The Advocacy Group, LLC
200 SE 6th St Ste 504
Fort Lauderdale, FL 33301-3424
Tel: (954) 282-1858
Fax: (844) 786-3694
Email: jkerr@advocacypa.com
KRAUSHAAR GALLERIES: Faces Dawson Suit Alleging ADA Violation
-------------------------------------------------------------
Kraushaar Galleries, Inc. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Kraushaar Galleries, Inc., Defendant, Case
No. 1:19-cv-00524 (S.D. N.Y., January 17, 2019).
Kraushaar Galleries is an art gallery in New York City founded in
1885 by Charles W. Kraushaar, who had previously been with the
European art gallery, William Schaus, Sr.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
LEONARD HUTTON: Faces Dawson Suit for Violation of ADA in N.Y.
--------------------------------------------------------------
Leonard Hutton Galleries, Inc. is facing a class action lawsuit
filed pursuant to the Americans with Disabilities Act. The case is
styled as Deshawn Dawson, on behalf of himself and all others
similarly situated, Plaintiff v. Leonard Hutton Galleries, Inc.,
Defendant, Case No. 1:19-cv-00522 (S.D. N.Y., January 17, 2019).
Leonard Hutton Galleries, Inc. is an Art gallery in New York City,
New York.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
LESLIE FEELY: Art Gallery Hit With ADA Class Suit
-------------------------------------------------
Leslie Feely Fine Art, LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Leslie Feely Fine Art, LLC, Defendant, Case
No. 1:19-cv-00525 (S.D. N.Y., January 17, 2019).
Leslie Feely Gallery located in New York City specializes in
Post-War and Contemporary Art.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
LIBERTY INSURANCE: Richelson Appeals Suit Dismissal to 6th Cir.
---------------------------------------------------------------
Plaintiff Murray Richelson filed an appeal from a court ruling in
the lawsuit titled Murray Richelson v. Liberty Insurance
Corporation, Case No. 1:18-cv-01801, in the U.S. District Court for
the Northern District of Ohio at Cleveland.
As reported in the Class Action Reporter on Dec. 21, 2018, Chief
District Judge Patricia A. Gaughan granted the Defendant's motion
to dismiss Plaintiff's First Amended Complaint.
The case involves the interpretation of a homeowner insurance
policy. Plaintiff Murray Richelson filed the Class Action
Complaint in the Lake County Court of Common Pleas against
defendant Liberty Mutual Insurance Company. A First Amended Class
Action Complaint was thereafter filed.
The First Amended Complaint sets forth three claims. Count One
alleges breach of contract by defendant's promise of "additional
coverage," but actually delivering reduced coverage. Count Two
alleges fraud based on defendant's misrepresentation that it was
delivering "additional coverage" while actually intending to
deliver a policy with less coverage. Count Three alleges breach of
contract by defendant's subtraction of the deductible from actual
cash value (ACV) payment made.
The appellate case is captioned as Murray Richelson v. Liberty
Insurance Corporation, Case No. 19-3035, in the United States Court
of Appeals for the Sixth Circuit.[BN]
Plaintiff-Appellant MURRAY RICHELSON, Individually and on behalf of
all others similarly situated, is represented by:
James Andrew DeRoche, Esq.
SEAMAN GARSON LLC
614 W. Superior Avenue, Suite 1600
Cleveland, OH 44113
Telephone: (216) 830-1000
E-mail: jderoche@garson.com
- and -
Patrick J. Perotti, Esq.
DWORKEN & BERNSTEIN CO., L.P.A.
60 S. Park Place
Painesville, OH 44077
Telephone: (440) 352-3391
E-mail: pperotti@dworkenlaw.com
Defendant-Appellee LIBERTY INSURANCE CORPORATION, other Liberty
Mutual Insurance Company, is represented by:
Dustin M. Dow, Esq.
BAKER & HOSTETLER LLP
127 Public Square, Suite 2000
Cleveland, OH 44114
Telephone: (216) 861-7098
E-mail: ddow@bakerlaw.com
- and -
Keesha Warmsby, Esq.
BAKER & HOSTETLER LLP
200 Civic Center Drive, Suite 1200
Columbus, OH 43215
Telephone: (614) 228-1541
E-mail: kwarmsby@bakerlaw.com
LIVING SPACES: Faces Class Action Over Defective Electric Recliner
------------------------------------------------------------------
ANN GRAHAM v. LIVING SPACES FURNITURE, LLC and DOES 1-10, Case No.
30-2019-01043138-CU-BT-CJC (Cal. Super., Orange Cty., January 10,
2018), is brought on behalf of the Plaintiff and all similarly
situated California residents seeking, inter alia, to permanently
enjoin the Defendants' "Policy and Practice" and to recover as
damages and restitution all amounts paid by customers damaged by
that practice.
The Defendants engage in the unfair and unlawful "Policy and
Practice" of selling substandard products and refusing to either
repair, replace or refund when the substandard quality of the sold
product becomes apparent, Ms. Graham alleges. She states that she
purchased an electric recliner with a battery in July 2018 as a
present for an aged relative from Living Spaces but the chair did
not operate.
Living Spaces Furniture, LLC, operates as an online furniture mart
portal -- http://www.mylivingspaces.com/. The Company sells sofas,
chair, mattresses, rug, decor, pillow, tables, and wall art
products. The Plaintiff is ignorant of the true names and
capacities of the Doe Defendants.[BN]
The Plaintiff is represented by:
Anthony G. Graham, Esq.
GRAHAM & MARTIN, LLP
2901 West Coast Highway, Suite 200
Newport Beach, CA 92663
Telephone: (949) 270-2792
E-mail: anthonyggraham@msn.com
LOVE BEAL: Dempsey Files FDCPA Suit in Arkansas
-----------------------------------------------
A class action lawsuit has been filed against Love, Beal & Nixon,
PC. The case is styled as Heather Jones also known as: Heather
Dempsey, individially and on behalf of all others similarly
situated, Plaintiff v. Love, Beal & Nixon, PC, Midland Funding, LLC
and John Doe 1-25, Defendants, Case No. 1:19-cv-01003-SOH (W.D.
Ark., January 16, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Love, Beal & Nixon, PC is a Law Firm Focusing on Debt Collection &
Litigation in Oklahoma.[BN]
The Plaintiff is represented by:
Yaakov Saks, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: ysaks@steinsakslegal.com
MACKLOWE GALLERY: Dawson Sues Art Gallery Under ADA
---------------------------------------------------
Macklowe Gallery, Ltd. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Macklowe Gallery, Ltd., Defendant, Case No.
1:19-cv-00523 (S.D. N.Y., January 17, 2019).
Macklowe Gallery is the world's premier dealer of museum-quality
Twentieth Century Decorative Arts.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
MARIAN GOODMAN: Dawson Alleges ADA Violation
--------------------------------------------
Marian Goodman Gallery, Inc. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Marian Goodman Gallery, Inc., Defendant,
Case No. 1:19-cv-00526-RA (S.D. N.Y., January 17, 2019).
Marian Goodman Gallery was founded in New York City in late 1977.
In 1995 the gallery expanded to include an exhibition space in
Paris and in 2014 an exhibition space in London.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
MARK BORGHI: Violates Disabilities Act, Dawson Suit Asserts
-----------------------------------------------------------
Mark Borghi Fine Art Inc. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Deshawn Dawson, on behalf of himself and all others similarly
situated, Plaintiff v. Mark Borghi Fine Art Inc., Defendant, Case
No. 1:19-cv-00527 (S.D. N.Y., January 17, 2019).
Mark Borghi Fine Art Inc offers a wide selection of artworks by
leading artists.[BN]
The Plaintiff is represented by:
Joseph H Mizrahi, Esq.
Cohen & Mizrahi LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Tel: (917) 299-6612
Fax: (929) 575-4195
Email: joseph@cml.legal
MARRIOTT VACATIONS: Bid for Sanction in Timeshare Suit Denied
-------------------------------------------------------------
The United States District Court for the District of Colorado
issued an Order granting in part and denying in part Plaintiffs'
Motion for Sanction and Default Judgment in the case captioned
RCHFU, LLC et al., Plaintiffs, v. MARRIOTT VACATIONS WORLDWIDE
CORPORATION et al., Defendants. Civil Action No.
16-cv-1301-PAB-GPG. (D. Colo.).
This action arises out of a dispute regarding the management of the
Ritz-Carlton Club, Aspen Highlands (Aspen Highlands), located in
Aspen, Colorado and its affiliation with Marriott Vacation Club
Destinations (MVC). MVC is a timeshare program with more than
400,000 members operated by MVCI that sells points, which can be
used to stay at various resorts owned by MVCI or affiliated with
the program. The complaint does not contain any class action
allegations. Plaintiffs bring five claims: (1) breach of fiduciary
duty against the Association, RC Management, and Cobalt (2)
constructive fraud against the same defendants (3) aiding and
abetting a breach of fiduciary duty and constructive fraud against
all defendants (4) conspiracy against all defendants and (5) unjust
enrichment against RC Management, Cobalt, MVW, MVCI, and Lion &
Crown.
The Plaintiffs contend that Marriott concealed a later agreement
(2013 Affiliation Agreement). The Plaintiffs also contend that
Marriott also failed to produce an additional set of documents
relating to a survey and focus group performed by APCO Worldwide,
Inc. (APCO documents) that strongly support the Plaintiffs'
fiduciary duty and constructive fraud claims.
The Plaintiffs move to consolidate the two instant motions for
default judgment on the basis that the two sanctions motions
together show Marriott's disturbing and pervasive pattern of
concealment, obfuscation, and dishonesty in both document
production and deposition testimony.
Regarding the first motion, the Plaintiffs' position is that the
Affiliation Agreement was wrongfully withheld: (1) from the various
boards and (2) in all three litigations in discovery and in
depositions. With regard to the APCO documents, the Plaintiffs
assert that Marriott was hiding the fact that it did not take a
vote behind a survey and thus hid the survey during the time before
and during the litigation. This theory suggests an intentional
intent to deceive a variety of boards, attorneys and courts over
multiple states and litigations.
While the Court is not unaware of the fact that such deceptive
practices could occur during the course of litigation-having seen
such behavior over the course of multiple actions-that does not
appear to be what occurred here for a variety of reasons.
The Acknowledgement Agreement, containing three (3) pages of text,
goes on to mention the Affiliation Agreement another half-dozen
times. Rather than being interposed for purposes of deception,
Marriott's view of the Affiliation Agreement is that it served to
make reciprocal the usage of Marriott facilities by RCC members.
Undoubtedly, the parties will vigorously advocate those competing
positions to the finder of fact at the appropriate time during the
continuation of this litigation.
For purposes of the present analysis, the Court have to determine
whether there was bad faith or willful misconduct now looking at
the situation as a whole with the supposed intent to hide the
Affiliation Agreement as a part of that whole. To put it bluntly,
if Marriott was trying to hide the Affiliation Agreement, they did
a relatively ham-handed job of it. Marriott left too many clues,
from explicit discussion in the Acknowledgement Agreement to
specific deposition testimony by Ms. Sobeck, for the Court to be
convinced that there was an intent to bury the Affiliation
Agreement. The failure to provide was a mistake, perhaps a costly
and time-consuming mistake, but a mistake nonetheless.
There have been some disputes and negotiations between the parties
during the course of discovery in this matter. It would be
surprising if there were not such disputes. As has been explicitly
detailed herein, discovery in this matter has been complex and
extensive. While it has taken a significant amount of time, and no
doubt been an expensive endeavor, the course of discovery has
appeared, in large part, to have been less contentious than in many
actions. Until the instant motions, there was nothing that
necessarily keyed the Court in to indicate discovery was going
astray. As discussed by Plaintiffs, particularly with regard to the
Affiliation Agreement, Plaintiffs believe that the post-discovery
emails of Marriott Attorney Marx show an intent to deceive based on
differences therein.
In terms of remedies, it appears that Marriott tried to make right
their mistake by allowing additional depositions and taking other
steps to fix the problem their non-provision caused. However, in
the Court's view, additional steps need to be taken to remedy the
failure concerning the Affiliation Agreement as set forth infra.
For these reasons, the Court finds as follows:
-- The Court finds that there was a discovery violation with
regard to the Affiliation Agreement. The Court does not find that
the violation was substantially justified. Thus, the Court Orders
reasonable expenses, attorney fees, and other relief to remedy the
violation.
-- The Court finds that there was a discovery violation with
regard to the APCO documents. The Court does find the violation to
be substantially justified. Therefore, the Court will Order no
sanction as a remedy for this violation.
-- The Court finds no bad faith nor any willful misconduct. The
Court specifically does not find this situation to merit default
judgment.
A full-text copy of the District Court's December 31, 2018 Order is
available at https://tinyurl.com/y786vjz8 from Leagle.com.
RCHFU, LLC, a Colorado limited liability company, Jeffrey A Bayer,
Gail L Bayer, Robert Buzzetti, Julie C Canner, Lee James
Chimerakis, Theresa Ann Chimerakis, Kevin Clare, Nancy Lynne Shute,
Toby L Cone Trust, Toby L Cone, its Trustee, Richard Davis, Shirley
J Davis, Carl Eichstaedt, III, James Richard Farquhar, Jennifer
Lucille Farquhar, Koppleman Family Trust, Larry Koppleman, its
Trustee, David Lancashire, Stephen Andrews, Bonnie Likover, Craig
Lipton, Jeremy Lowell, D.D.S., Lori Lowell, Edward P Meyerson,
Andrea C Meyerson, Jerry M. Nowell Trust, Jerry M Nowell, its
Trustee, Dee Ann Davis Nowell, its Trustee, Dee Ann Davis Nowell
Trust, Thomas M. Prose Revocable Living Trust, Thomas M Prose,
M.D., its Trustee, Casey M Rogers, Courtney S Rogers, Robert A
Sklar, its Trustee, Robert A. Sklar Trust, C. Richard Stasney,
M.D., Susan P Stasney, TSE Holdings, LLC, a Colorado limited
liability company, Stephen Weinstein, Brenda Weinstein & Jack
Zemer, on behalf of themselves and all others similiarly situated,
Plaintiffs, represented by Isabella Martinez --
isabella@reiserlaw.com -- Reiser Law P.C., Linda Pham Lam --
lpl@classlawgroup.com -- Gibbs Law Group, Matthew C. Ferguson,
Matthew C. Ferguson Law Firm, P.C., Matthew Whitacre Reiser --
matthew@reiserlaw.com -- Reiser Law P.C., Michael Joseph Reiser,
Sr. -- michael@reiserlaw.com -- Reiser Law P.C., Michael Lawrence
Schrag -- mls@classlawgroup.com -- Gibbs Law Group & Tyler Roberts
Meade -- tyler@meadefirm.com -- The Meade Firm.
Marriott Vacations Worldwide Corporation, a Delaware corporation,
Marriott Ownership Resorts, Inc., a Delaware corporation,
Ritz-Carlton Management Company, LLC, a Delaware limited liability
company, Cobalt Travel Company, LLC, a Delaware limited liablity
company & The Lion & Crown Travel Co., LLC, a Delaware limited
liability company, Defendants, represented by David L. Masters --
dlm@mastersviner.com -- Masters Viner P.C., Ian Scott Marx,
Greenberg Traurig, LLP, Jaclyn DeMais -- demaisj@gtlaw.com --
Greenberg Traurig, LLP, Philip Rabner Sellinger --
sellingerp@gtlaw.com -- Greenberg Traurig, LLP, Roger Brian Kaplan
-- kaplanr@gtlaw.com -- Robins Kaplan, LLP, Todd Lawrence
Schleifstein -- schleifsteint@gtlaw.com -- Greenberg Traurig, LLP &
Naomi G. Beer -- beern@gtlaw.com -- Greenberg Traurig, LLP.
MDL 2323: Court Denies A. Martin's Bid to Opt Out of Settlement
---------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania issued a Memorandum denying Plaintiff Anita Martin's
Motion to Opt Out of the Settlement in the case captioned IN RE:
NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION INJURY LITIGATION,
THIS DOCUMENT RELATES TO: Martin v. Kansas City Chiefs Football
Club, LLC Lewis et al. v. Kansas City Chiefs Football Club, Inc.
No. 2:12-md-02323-AB, MDL No. 2323.
Defendant the Kansas City Chiefs Football Club, Inc. (Chiefs) moves
to dismiss the Complaint filed by Plaintiff Anita Martin in Martin
v. Kansas City Chiefs Football Club, LLC, No 14-cv-3381 (E.D. Pa.)
and Lewis v. Kansas City Chiefs Football Club, LLC, No. 14-cv-1995
(Lewis), and the Short Form Complaint filed by Martin in Martin
and In re: National Football League Players Concussion Injury
Litigation, 12-md-2323 (E.D. Pa.) (NFL Concussion MDL). Martin was
previously married to Christopher Martin, a former player for the
Chiefs, and brings a claim against the Chiefs for loss of
consortium related to head injuries her ex-husband sustained while
playing for the Chiefs.
The Chiefs contend that Martin's claim should be dismissed because
she is a class member in the NFL Concussion Settlement (Settlement)
and did not opt out of the class.
The Court entered an order granting preliminary approval of the
Settlement between the NFL Defendants and a proposed Settlement
Class. The proposed Class consisted of:
All living NFL Football Players who, prior to the date of the
Preliminary Approval and Class Certification Order July 7, 2014,
retired, formally or informally, from playing professional football
with the NFL or any Member Club (Retired NFL Football Player) and
spouses parents, children who are dependents, or any other persons
who properly under applicable state law assert the right to sue
independently or derivatively by reason of their relationship with
a Retired NFL Football Player (Derivative Claimants).
The Settlement contained a broad release of claims by Class Members
against the NFL Defendants. Each Class Member released any claims
against the NFL Defendants, including individual NFL teams, that
could have been asserted in the Class Action Complaint or any other
Related lawsuit. The Settlement explicitly released, among others,
claims arising out of, or relating to, head, brain, and/or
cognitive injury, as well as any injuries arising out of, or
relating to, concussions and/or subconcussive events, claims
arising out of, or relating to, CTE CChronic Traumatic
Encephalopathy) and claims arising out of, or relating to, loss of
support, services, consortium, companionship, society, or
affection, or damage to familial relations.
Martin is a Derivative Claimant because she has a claim against the
Chiefs under applicable state law by reason of [her] relationship
with a Retired NFL Football Player. Christopher Martin, Martin's
ex-husband, is a Retired NFL Football Player under the definition
of the Settlement because he stopped playing professional football
after 1993. Martin's loss of consortium claim exists by reason of
her former marriage to Christopher Martin while he played for the
Chiefs. Therefore, Martin is a Derivative Claimant and, unless she
timely and effectively opted out of the Settlement, is a Settlement
Class Member.
First, Martin argues that her ex-husband, Christopher Martin's, act
of opting out of the Settlement had the effect of opting out
Martin's claim.
This is incorrect.
The right to opt out of a class action is one that must be
exercised individually. Indeed, to allow a class representative,
counsel, or other individual to opt out on behalf of other class
members would infringe on the due process rights of the individual
class members, who have the right to intelligently and individually
choose whether to continue in a suit as class members. The fact
that Martin's claim was consolidated with her ex-husband's claim
does not alter this fundamental principle of class action law. As
the U.S. District Court for the Western District of Missouri noted
in its order consolidating Anita and Christopher Martin's claims
against the Chiefs, consolidation is permitted as a matter of
convenience and economy in administration, but does not merge the
suits into a single cause, or change the rights of the parties.
Indeed, to allow Christopher Martin to opt out on Martin's behalf
merely because a court consolidated their claims in a single action
in furtherance of judicial administration would infringe upon
Martin's due process rights.6 Christopher Martin's opt-out did not
have the effect of opting out Martin.
A party who fails to timely file an opt out form may be found to
have effectively opted out if there is a reasonable indication' of
a party's intent to opt out. In order for a party to give a
reasonable indication of its intent to opt out, the party must
perform some action that is unambiguously inconsistent with an
intention to participate in the settlement.
Martin did not evince a reasonable indication of her desire to opt
out during the opt-out period. The sole action she took during the
opt-out period was continuing to maintain her pending lawsuit
against the Chiefs. The only other actions Martin puts forth as
evidence of her intent to opt out, her counsel's participation in
an opt-out organizational meeting, her filing of a Short-Form
Complaint, and her filing purporting to join Christopher Martin's
motion to remand occurred between March and July 2017, years after
the opt-out period ended on October 14, 2014. These actions have no
bearing on whether Martin intended to opt out during the opt-out
period. Without some action taken during the opt-out period, this
cannot serve as an after-the-fact indication that she had intended
to opt out nearly three years prior.
Martin argues that, if this Court finds she did not effectively opt
out, the Court should grant her leave to opt out now, four years
after the opt-out deadline. Because Martin's failure to timely opt
out was not due to excusable neglect, the Court will deny this
request.
Four factors are considered in evaluating whether a party's failure
to timely opt out was due to excusable neglect: 1) the danger of
prejudice to the nonmovant 2) the length of the delay and its
potential effect on judicial proceedings 3) the reason for the
delay, including whether it was within the reasonable control of
the movant and 4) whether the movant acted in good faith.
Prejudice to Defendant
First, allowing a class member whose request is neither unique nor
compelling to opt out after the deadline may prejudice defendants
by opening the door to other requests for untimely opt-outs.
Here, Martin's request presents nothing that is unique or
compelling. Martin's position a class member who had pending
litigation against the NFL Parties at the time of the settlement
and failed to timely opt out is one that many other class members
also potentially share. Before the Settlement was preliminarily
approved, about 5,000 former players and their family members had
filed over 300 substantially similar lawsuits against the NFL
Parties. Only 220 Settlement Class Members submitted timely opt-out
requests. There are potentially thousands of Class Members who had
claims pending against the NFL Parties at the time of the
Settlement, failed to timely opt out, and now may be rethinking
that decision, four years after the opt-out deadline.
Second, allowing additional opt-outs at this late date would
further prejudice the Chiefs and the other NFL Parties because they
relied on the guarantee that they would know the number of opt-outs
by a certain date when they agreed to the Settlement.
Reason for the Delay
When considering the reason for the delay and whether it was within
the reasonable control of the movant, courts look to both the
conduct of the claimant which contributed to the delay and to
whether the notice provided contributed to the delay. Martin does
not argue that she did not receive actual or constructive notice of
the opt-out deadline. Rather, the only reason Martin gives for her
delay is her mistaken understanding that, despite not filing a
timely opt-out request, she was considered an opt-out by the
Court.
That Martin had notice of the opt-out deadline weighs against a
finding of excusable neglect. Martin has had a case pending in the
NFL Concussion MDL since June 29, 2014, before preliminary approval
of the Settlement and the beginning of the opt-out period. Martin
has been continuously represented since this time, and her counsel
entered an appearance on ECF. The preliminary approval order, the
Settlement itself, the Summary and Long Form Notices and the list
of timely opt-outs were all posted on ECF. Martin's status as a
party in the MDL during this period means she almost certainly had
actual notice of the opt-out requirements.
Here, Martin received notice of the Settlement rules, including the
opt-out deadline, and has given no reason for her four-year delay
other than her mistakes construing the rules. She has pointed to no
circumstances outside her control that contributed to her failure
to timely opt out. Instead, Martin contends that she failed to
timely opt out of the Settlement solely because she was under the
mistaken belief that she did not personally have to opt out. This
factor weighs against a finding of excusable neglect.
Length of Delay
The length of the delay here four years certainly weighs against a
finding of excusable neglect. Courts have routinely declined to
find excusable neglect for movants who ask for an extension
considerably less than four years after a deadline.
Good Faith
Finally, the Court does not question that Martin's misunderstanding
of the opt-out requirements and her present request are in good
faith. It is unfortunate for Martin, who has been continuously
represented by counsel, that the Court must attribute the mistaken
assumption that she did not need to individually opt out for the
past four years to her.
Nonetheless, because of the prejudice to the Chiefs and the other
NFL Defendants if Martin was allowed to opt out four years after
the deadline, and because the only reason given for the delay is
Martin's misunderstanding of the opt-out requirement, the Court
finds that Martin's failure to timely opt out was not due to
excusable neglect. Martin's request to opt out will be denied.
The Chiefs argue that the Settlement bars all claims of non-opt-out
Class Members, including Martin, against the NFL Parties for
injuries arising from head concussions.
The Chiefs are correct.
Because Martin is a Class Member who failed to opt out, see supra
Section III(A), and because she brings a loss of consortium claim
for injuries arising from her ex-husband's alleged head injuries
experienced during his time playing for the NFL, her claims are
squarely within those released by the Settlement. The Settlement
thus precludes her claim.
Claim preclusion bars a plaintiff's claim when there has been: (1)
a final judgment on the merits in a prior suit involving (2) the
same parties or their privies and (3) a subsequent suit based on
the same cause of action. Allowing Martin's suit to proceed would
be allowing the relitigation of settled question at the core of the
NFL Settlement. Because Martin's claim is precluded by the
Settlement.
The Court will grant the Chiefs' Motion to Dismiss.
Martin is a Settlement Class Member who did not effectively opt out
of the Settlement, and her failure to timely opt out was not due to
excusable neglect. Because her claim is squarely within the scope
of the Settlement's release, her claim is barred by claim
preclusion.
Martin's Motion to Opt Out will be denied, and the Chief's Motion
to Dismiss Martin's claim will be granted.
A full-text copy of the District Court's January 3, 2019 Memorandum
is available at https://tinyurl.com/y9ynwehy from Leagle.com.
BARRY HACKETT, also known as DINO HACKETT & CYNTHIA HACKETT,
Plaintiffs, represented by ANDREW SCHERMERHORN --
ajs@klamannlaw.com -- THE KLAMANN LAW FIRM, JOHN M. KLAMANN, THE
KLAMANN LAW FIRM, KENNETH B. MCCLAIN, HUMPHREY FARRINGTON MCCAIN
PC, LAUREN ELISE MCCLAIN, HUMPHREY FARRINGTON & MCCLAIN PC, PAUL
DOUGLAS ANDERSON, THE KLAMANN LAW FIRM, TIMOTHY J. KINGSBURY,
HUMPHREY FARRINGTON & MCCLAIN PC & WILLIAM DIRK VANDEVER, THE
POPHAM LAW FIRM, PC.
KANSAS CITY CHIEFS FOOTBALL CLUB, INC., Defendant, represented by
BRAD S. KARP -- bkarp@paulweiss.com -- PAUL WEISS RIFKIND WHARTON &
GARRISON LLP, BRUCE BIRENBOIM -- bbirenboim@paulweiss.com -- PAUL,
WEISS, RIFKIND, WHARTON & GARRISON, LLP, ELIZABETH A. MURRAY --
emurray@batyholm.com -- BATY HOLM NUMRICH & OTTO, LEE M. BATY --
lbaty@batyholm.com -- BATY HOLM NUMRICH & OTTO, THERESA A. OTTO --
totto@batyholm.com -- BATY HOLM NUMRICH & OTTO & WILLIAM
CHRISTOPHER HILLMAN -- chillman@batyholm.com -- BATY HOLM NUMRICH &
OTTO.
CYNTHIA PHILLIPS, Movant, represented by PAUL A. TERSHEL, TERSHEL &
ASSOCIATES.
MDL 2591: Ct. Adopts $503MM Atty's Fees Award Allocation Framework
------------------------------------------------------------------
The United States District Court for the District of Kansas issued
a Memorandum and Order adopting in part the Special Master's Report
and Recommendation in the case captioned IN RE: SYNGENTA AG MIR 162
CORN LITIGATION. This Document Relates to All Cases Except: Louis
Dreyfus Co. Grains Merchandising LLC v. Syngenta AG, et al., No.
16-2788 Trans Coastal Supply Co., Inc. v. Syngenta AG, et al., No.
14-2637 The Delong Co., Inc. v. Syngenta AG, et al., No. 17-2614
Agribase Int'l Inc. v. Syngenta AG, et al., No. 15-2279. MDL No.
2591, Case No. 14-md-2591-JWL. (D. Kan.).
The special master recommends a framework for allocating the
$503,333,333.33 award of attorney fees to all attorneys whose
efforts contributed to the settlement class's ultimate recovery.
Ten objections to the R&R were filed by various attorneys, and
those objections may be summarized as follows:
-- Toups/Coffman argues that the entire allocation to attorneys
should not be undertaken until claimant recoveries are known and
that the allocation should be accomplished in one phase. Heninger
Garrison Davis argues that the Illinois percentage should be
increased.
-- Clark/Phipps argues that the Illinois percentage is too
small, that the Heninger group should not be placed in the Illinois
pool, and that the IRPA percentage should be increased. Bassford
Remele argues that some of the Illinois allocation should be
shifted to the Individually Retained Private Attorney’s (IRPA)
pool. Watts Guerra objects to the recommended framework and
alternatively argues that the Minnesota and IRPA percentages should
be increased. Hossley-Embry argues that common-benefit time should
be broadly construed and that either the IRPA pool allocation
should be increased or client contingent fee contracts should be
honored. Paul Byrd, Hecker Law Group, Shields Law Group, and Kirk
Law Firm argue that the IRPA percentage is too low or that client
contracts should be honored.
The Court agrees with the special master that it is appropriate to
include an allocation to an IRPA pool from the total award of fees.
The sheer number of individual suits filed against Syngenta
created enormous pressure on Syngenta, and thus the mere existence
of the IRPAs and their clients contributed in a meaningful way to
the ultimate resolution that benefits the entire settlement class.
That contribution merits an award from the common fund.
The Court agrees with the special master that the relative
contribution to the ultimate recovery, based on the mere existence
of individual claims the basis for any common fund allocation to
the IRPA pool, is small when compared to the pools allocated to
attorneys who performed work that benefitted the entire settlement
class, and that such contribution is appropriately rewarded with an
approximate contingent fee award of 10 percent. The time and
expense incurred by IRPAs in recruiting clients does not contribute
to the ultimate recovery and does not justify an increased
contingent fee. The completion of PFSs is akin to the mere filing
of individual complaints, and significant labor in completing PFSs
may also warrant consideration for allocation from the three common
benefit pools. These objectors stress their efforts at client
communications, but the Court is not persuaded that post-retention
communications with farmers is substantially more onerous than
client communications in any other mass action involving consumers.
Indeed, other than for purposes of completing PFSs, which the Court
has already addressed, additional substantial communication was
unnecessary unless a plaintiff was chosen as a bellwether plaintiff
or was otherwise involved in discovery in which case, the attorney
might seek fees from the common benefits pools.
No attorney has objected to the master's recommendation that any
IRPA making a claim for fees be required to produce, for review by
the Special Master, a retainer agreement and/or a power of attorney
from the Class Member on whose behalf the IRPA is claiming before
it can be paid. The Court concludes that such a requirement is
reasonable, and it therefore adopts it as recommended.
The Court, however, rejects the special master's recommendation for
a limited right of appeal to the master if an IRPA believes that a
fee award is insufficient based on unique and exceptional
circumstances. The Court is not persuaded that such an exception
which the master indicates would be exceedingly narrow is
necessary. Again, IRPAs are eligible to receive allocations of fees
from the common benefit pools, and if an IRPA actually performed an
extraordinarily atypical amount of substantive work to litigate
these claims, such work is more properly compensated by an award
from the other pools, to the extent such work benefitted the
settlement class (and thus was reasonably performed in light of and
despite the work on similar cases being performed by other
attorneys particularly Kansas and Minnesota lead counsel in this
mass action.
The Court adopts the special master's recommendation to reopen the
application period so that IRPAs who have not yet filed an
application for attorney fees may still seek an award of fees from
the IRPA pool. It is true that the Court, in its preliminary
approval order, stated that any person seeking attorney fees,
expenses, or service awards from the settlement fund was required
to file a motion by a particular deadline. That order did not
necessarily make clear, however, that recovery on contingent-fee
client contracts would be prohibited and that the Court's
application process constituted the sole avenue for recovery of any
contingent fee whatsoever. Any such lack of clarity was exacerbated
by language in the long-form class notice approved by the Court,
which advised only that if a class member previously hired an
attorney but wished to remain in the settlement class, the member
should discuss the issue of attorney fees with his or her lawyer
and that if the class member chose to hire a lawyer at that point,
he or she would be responsible for the lawyer's fees and expenses.
Thus, because it is prohibiting the recovery of any contingent
attorney fees beyond those awarded by the Court from the allocation
pools, the Court deems it appropriate to allow IRPAs an additional
opportunity to request a fee award. Such an accommodation should
practically eliminate the possibility that an attorney is unfairly
left without any fee. On the other hand, the Court's previous order
provided sufficient notice of the requirement of a motion by any
attorney claiming fees for common benefit work; therefore, the
recovery by new applicants is limited to recovery from the IRPA
pool.
The Court has already concluded that the allocation to the IRPA
pool should be increased from the 10 percent recommended by the
master to 12 percent of the total attorney fee award. That
two-percent increase requires a reduction in the percentages
allocated to the three common benefit pools. Taking one percent
from the Kansas pool and 0.5 percent each from the Minnesota and
Illinois pools accomplishes that reduction in a fairly proportional
manner.
Accordingly, the Court allocates the total fee award among the four
pools as follows:
-- $60,400,000.00 (12%) IRPA pool
-- $246,633,333,33 (49%) Kansas MDL common benefit pool
-- $118,283.333.33 (23.5%) Minnesota state court common benefit
pool
-- $78,016,666.67 (15.5%) Illinois federal court common benefit
pool
The Court extends the appointment of Ms. Reisman as special master
to oversee the distribution of attorney fees, expenses, and service
awards by the administrator as finally allocated by the courts,
until that distribution has been completed. Kansas MDL court, the
Minnesota state court, and the Illinois federal court be
responsible for the allocation to attorneys in the next phase from
the Kansas, Minnesota, and Illinois common benefit pools
respectively.
A full-text copy of the District Court's December 31, 2018
Memorandum and Order is available at https://tinyurl.com/yd8cxkmm
from Leagle.com.
All Plaintiffs, Plaintiffs, represented by Daniel E. Gustafson --
dgustafson@gustafsongluek.com -- Gustafson Gluek, PLLC, pro hac
vice, Don M. Downing, Gray, Ritter & Graham, PC, pro hac vice,
Patrick J. Stueve, Stueve Siegel Hanson LLP, Richard L. Coffman,
The Coffman Law Firm, Scott A. Powell, Hare Wynn Newell & Newton,
pro hac vice & William B. Chaney, Gray Reed & McGraw, LLP, pro hac
vice.
All Defendants, Defendants, represented by Michael D. Jones --
michael.jones@kirkland.com -- Kirkland & Ellis, pro hac vice &
Thomas P. Schult, Berkowitz Oliver Williams Shaw & Eisenbrandt,
LLP.
Ellen K. Reisman, Special Master, pro se.
MIDLAND CREDIT: Cooper Appeals FDCPA Suit Dismissal to 11th Cir.
----------------------------------------------------------------
Plaintiff Keith Cooper filed an appeal from a court ruling in the
lawsuit titled Keith Cooper v. Midland Credit Management, Inc.,
Case No. 4:18-cv-00082-CDL, in the U.S. District Court for the
Middle District of Georgia.
As reported in the Class Action Reporter on Dec. 21, 2018, Chief
District Judge Clay D. Land granted the Defendant's motion and
dismissed the case.
Keith Cooper brought the putative class action alleging that
Midland Credit Management, Inc. sent him a collection letter that
violates the Fair Debt Collection Practices Act.
Mr. Cooper owes a debt to Midland Funding, LLC, based on his use of
a revolving line of credit he obtained from Credit One Bank. He
does not allege that he selected any of the payment options. Cooper
does allege that if he did make a partial payment, that "would
potentially re-start the statute of limitations on the debt under
Georgia law." He further alleges that Midland's collection letter
"is misleading and deceptive since it fails to advise [Cooper] that
if he takes advantage of any of the payment options, such
payment(s) would be a new promise to pay that would restart the
statute of limitations clock in Georgia thus exposing him to a
potential lawsuit." He does not allege facts to suggest that
Midland would sue him following a partial payment, and in fact, he
alleged that Midland unequivocally stated that it will not sue
him.
The appellate case is captioned as Keith Cooper v. Midland Credit
Management, Inc., Case No. 19-10120, in the United States Court of
Appeals for the Eleventh Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- The appellant's brief is due on or before February 19,
2019;
-- The appendix is due no later than 7 days from the filing of
the appellant's brief;
-- Appellant's Certificate of Interested Persons is due on or
before January 24, 2019, as to Appellant Keith Cooper; and
-- Appellee's Certificate of Interested Persons is due on or
before February 7, 2019, as to Appellee Midland Credit
Management, Inc.[BN]
Plaintiff-Appellant KEITH COOPER, Individually on behalf of himself
and all others similarly situated, is represented by:
David A. Chami, Esq.
PRICE LAW GROUP APC
8245 N 85th Wy
Scottsdale, AZ 85258
Telephone: (818) 600-5515
E-mail: david@pricelawgroup.com
- and -
Tristan Wade Gillespie, Esq.
5150 Cottage Farm Rd.
Alpharetta, GA 30022
Telephone: (404) 984-8260
E-mail: gillespie.tristan@gmail.com
Defendant-Appellee MIDLAND CREDIT MANAGEMENT, INC., is represented
by:
Austin Alexander, Esq.
Alan F. Pryor, Esq.
BALCH & BINGHAM, LLP
30 Ivan Allen Jr. Blvd., NW Suite 700
Atlanta, GA 30308-3036
Telephone: (404) 261-6020
E-mail: aalexander@balch.com
apryor@balch.com
MIDLAND CREDIT: Court Dismisses E. Greene's FDCPA Suit
------------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion granting Defendant's Motion for Summary Judgment
in the case captioned EILEEN GREENE, on behalf herself and all
others similarly situated. Plaintiff, v. MIDLAND CREDIT MANAGEMENT,
INC., Defendant. Civil Action No. 17-1322 (JLL). (D.N.J.).
The Plaintiff had an account with Verizon New Jersey, Inc.
(Verizon) for basic telephone services such as local calling and
non-basic telephone services such as Caller ID and regional and
long distance calling. Charges for the Basic and Non-Basic Services
were grouped separately. The Plaintiff failed to make any further
payments on her account. The Defendant sent two letters to the
Plaintiff, one offering to resolve the amount due on the Basic
Services Account and another offering to resolve the amount due on
the Non-Basic Services Account. The Plaintiff filed a putative
class-action Complaint with this Court alleging a single cause of
action for violation of the Fair Debt Collection Practices Act
(FDCPA).
As an initial matter, the Plaintiff concedes that she uncovered
through discovery that the two debt collection letters were for
separate accounts and debts, and therefore voluntarily withdraws
her first argument. Accordingly, the Court will grant summary
judgment for the Defendant on the Plaintiffs FDCPA claim to the
extent that it pertains to the Defendant allegedly sending two
letters for the same account and improperly charging the Plaintiff
interest fees.
The Plaintiff claims that the Defendant violated the FDCPA,
specifically 15 U.S.C. Section 1692e, by sending the two debt
collection letters without informing the Plaintiff that the debts
were time-barred and no longer actionable.
Section 1692e prohibits a debt collector from using any false,
deceptive, or misleading representation or means in connection with
the collection of any debt including: (i) falsely representing the
character, amount, or legal status of any debt threatening to take
any action that cannot legally be taken or using any false
representation or deceptive means to collect or attempt to collect
any debt or to obtain information concerning a consumer. The
statute of limitations for the collection of debts under New Jersey
law is six years.
Here, the Plaintiff's payments for the accounts were due on or
around October 25, 2010, and the letters were sent on February 24,
2016. The Plaintiff seems to concede that, under New Jersey's
statute of limitations, the debts had not expired at the time the
letters were sent.
Instead, the Plaintiff argues that the statute of limitations for
at least part of the Non-Basic Services Account is less than New
Jersey's six year statute of limitations. Specifically, the
Plaintiff claims that charges for long distance calling and federal
service fees in the Non-Basic Services Agreement are governed by a
two-year statute of limitations period, pursuant to the Federal
Communications Act (FCA). Plaintiff also claims that the broadband
internet services in the Non-Basic Services Agreement were provided
pursuant to a separate Verizon contract, which was explicitly
governed by Virginia law and Virginia's five year statute of
limitations.
The Court is not persuaded that the statutes of limitations
proposed by the Plaintiff apply in this case. First, as the
Defendant correctly points out, the two-year statute of limitations
in the FCA only applies to rates that are tariffed by the Federal
Communications Commission, and the agreements at issue here are not
tariffed. As for the Plaintiff's second argument, the Verizon
contract states that the substantive law of Virginia applies, not
its laws of procedure or statute of limitations, which are governed
by the forum state, i.e., New Jersey. Accordingly, the Court
concludes that both service agreements are governed by New Jersey's
six year statute of limitations, and, because the letters were sent
within that six year statute of limitations period, a reasonable
juror could not conclude that the debts were time-barred or that
Defendant violated the FDCPA on this issue.
A full-text copy of the District Court's January 3, 2019 Opinion is
available at https://tinyurl.com/y8xvwmbp from Leagle.com.
EILEEN GREENE, on behalf of herself and all others similarly
situated, Plaintiff, represented by LAWRENCE C. HERSH.
MIDLAND CREDIT MANAGEMENT, INC., Defendant, represented by ELLEN
BETH SILVERMAN -- esilverman@hinshawlaw.com -- HINSHAW & CULBERTSON
LLP & MATTHEW BLAKE CORWIN -- mcorwin@hinshawlaw.com -- HINSHAW &
CULBERTSON LLP.
MISSOURI: State, Governor Immune in Public Defenders' Suit
----------------------------------------------------------
Charmaine Little, writing for St. Louis Record, wrote that the U.S.
Court of the Appeals for the Eighth Circuit reversed and remanded a
lower court's denial of immunity claims made by the State of
Missouri and its governor in a class-action lawsuit against them.
The plaintiffs, all facing charges in the state court and
represented by the Missouri State Public Defender, claimed that the
state "failed to meet its constitutional obligation to provide
indigent defendants with a meaningful representation," violating
the Sixth Amendment, according to the lawsuit.
They said their representation was inadequate as it was clear that
the lawyers had too many cases on their hands and not enough time
to give each one the care it needed.
They filed the lawsuit and asked for a declaratory judgment that
would say their right to counsel was being infringed upon, and
asked for a separate order for the defendants come up with a
feasible plan to remedy the situation.
In siding with the state and the governor, the appeals court said
that the plaintiffs had failed to source a Missouri law that waives
sovereign immunity for equitable relief. Although they did raise
five different cases as well as rulings made in other states, the
appeals court determined that this was not enough.
The court pointed to a Supreme Court decision that sovereign
immunity was not a practice that served as a defense for liability
suit, but was intended to protect certain parties from lawsuits
altogether. The court reversed and remanded the case back to the
lower court.
Circuit Judge William Duane Benton authored the opinion, issued on
Jan. 10, and Circuit Judges Raymond Gruender and Michael Joseph
Melloy concurred. [GN]
MMI 82 LLC: Honeywell Files ADA Class Action in S.D. Florida
------------------------------------------------------------
MMI 82, LLC is facing a class action lawsuit filed pursuant to the
Americans with Disabilities Act. The case is styled as Cheri
Honeywell, individually and on behalf of all others similarly
situated, Plaintiff v. MMI 82, LLC, a Florida limited liability
company, Defendant, Case No. 4:19-cv-10012-JEM (S.D. Fla., January
16, 2019).
MMI 82 LLC is in the Hotels and Motels industry in Islamorada,
FL.[BN]
The Plaintiff is represented by:
Jessica Lynn Kerr, Esq.
Jessica L. Kerr, P.A. dba The Advocacy Group
200 S.E. 6th Street, Suite 504
Fort Lauderdale, FL 33301
Tel: (954) 282-1858
Fax: (844) 786-3694
Email: service@advocacypa.com
MOLINA HEALTHCARE: Steamfitters Appeals Decision to 9th Circuit
---------------------------------------------------------------
Plaintiff Steamfitters Local 449 Pension Plan filed an appeal from
a court ruling in the lawsuit styled Steamfitters Local 449 Pension
v. Molina Healthcare, Inc., et al., Case No. 2:18-cv-03579-R-JC, in
the U.S. District Court for the Central District of California, Los
Angeles.
As previously reported in the Class Action Reporter, on April 27,
2018, the Steamfitters Local 449 Pension Plan filed a class action
securities complaint in the Central District Court of California
against the Company and its former executive officers -- J. Mario
Molina, John C. Molina, Terry P. Bayer, and Rick Hopfer.
The complaint purports to seek recovery on behalf of all persons or
entities who purchased Molina common stock between October 31,
2014, and August 2, 2017, for alleged violations under Sections
10(b) and 20(a) of the Securities Exchange Act and Rule 10b-5
promulgated thereunder.
The Plaintiff alleges the defendants misled investors regarding the
scalability of the Company's administrative infrastructure during
the identified class period.
The appellate case is captioned as Steamfitters Local 449 Pension
v. Molina Healthcare, Inc., et al., Case No. 19-55050, in the
United States Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Appellant Steamfitters Local 449 Pension Plan's opening
brief is due on March 11, 2019;
-- Appellees Terry P. Bayer, Rick Hopfer, J. Mario Molina,
John C. Molina and Molina Healthcare, Inc.'s answering
brief is due on April 9, 2019; and
-- Appellant's optional reply brief is due 21 days after
service of the answering brief.[BN]
Plaintiff-Appellant STEAMFITTERS LOCAL 449 PENSION PLAN,
Individually and on Behalf of All Others Similarly Situated, is
represented by:
Michael P. Canty, Esq.
Christine M. Fox, Esq.
Jonathan Gardner, Esq.
Theodore J. Hawkins, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
E-mail: mcanty@labaton.com
cfox@labaton.com
gardner@labaton.com
thawkins@labaton.com
- and -
Robert Vincent Prongay, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
E-mail: rprongay@glancylaw.com
Defendants-Appellees MOLINA HEALTHCARE, INC., TERRY P. BAYER and
RICK HOPFER are represented by:
Manuel A. Abascal, Esq.
Robert W. Perrin, Esq.
LATHAM & WATKINS LLP
355 South Grand Avenue, Suite 100
Los Angeles, CA 90071-1560
Telephone: (213) 485-1234
E-mail: manny.abascal@lw.com
robert.perrin@lw.com
Defendants-Appellees J. MARIO MOLINA and JOHN C. MOLINA are
represented by:
John Charles Dwyer, Esq.
COOLEY LLP
5 Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Telephone: (650) 843-5000
E-mail: dwyerjc@cooley.com
- and -
Shannon M. Eagan, Esq.
Jessie LaGoy, Esq.
COOLEY LLP
3175 Hanover Street
Palo Alto, CA 94304
Telephone: (650) 843-5087
E-mail: seagan@cooley.com
jsimpsonlagoy@cooley.com
- and -
Jeffrey D. Lombard, Esq.
COOLEY LLP
1700 Seventh Avenue, Suite 1900
Seattle, WA 98101
Telephone: (206) 452-8700
E-mail: jlombard@cooley.com
NAT'L CREDIT: Gochet Disputes Student Loan "Accelerated" Status
---------------------------------------------------------------
Keanna Gochet, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. National Credit Services Inc., Defendant,
Case No. 19-cv-00020, (E.D. Wisc., January 3, 2019), seeks damages
and other legal and equitable remedies, resulting from violations
of the Fair Debt Collection Practices Act and the Wisconsin
Consumer Act.
Gochet incurred a student loan with Federal Perkins that was
payable in installments. On or about August 27, 2018, National
Credit Services mailed a debt collection letter in an attempt to
collect the said debt, claiming that his Federal Perkins student
loan debt is in default and that the entire balance is due and
payable. Gochet disputes the "accelerated" status of his loan.
[BN]
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
Tel: (414) 482-8000
Fax: (414) 482-8001
Email: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
NEKTAR THERAPEUTICS: Inital CMC in Mulquin Suit Continued
---------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order regarding Defendant's Time to Respond to
the Complaint and Initial Case Management in the case captioned
JOHN MULQUIN, Individually and On Behalf of Himself and All Others
Similarly Situated, Plaintiff, v. NEKTAR THERAPEUTICS, HOWARD W.
ROBIN, and GIL M. LABRUCHERIE, Defendants. Case No.
4:18-cv-06607-HSG. (N.D. Cal.).
The Plaintiff filed a putative class action complaint against the
Defendants alleging violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 (Exchange Act) and Securities and
Exchange Commission Rule 10b-5 promulgated thereunder.
The parties anticipate that the Court-appointed lead plaintiff will
file a consolidated or amended complaint that will supersede the
existing Complaint and any later-filed complaint(s).
In order to avoid the unnecessary expenditure of judicial resources
or effort by the parties prior to the appointment of a lead
plaintiff and the filing of the anticipated amended complaint, the
parties have agreed, subject to the Court's approval, to an
extension of time for Defendants to respond to the current
Complaint and to the continuance of the Initial Case Management
Conference.
The Defendants shall not be required to respond to the Complaint
until after the appointment of a lead plaintiff pursuant to 15
U.S.C. Section 78u-4(a)(3)(B) and after the filing by such lead
plaintiff of a consolidated or amended complaint or the designation
of an operative complaint. Pursuant to Local Rule 6-1(a), this
paragraph shall be effective upon the filing of this Stipulation
with the Court.
Within fourteen (14) days following the appointment of a lead
plaintiff, Defendants shall meet and confer with the
court-appointed lead plaintiff and submit a schedule for the filing
of a consolidated or amended complaint and the filing of
Defendants' response thereto.
The Initial Case Management Conference and the deadlines for
submission of an ADR Certification and a Case Management Statement
and Rule 26(f) Report are continued until such time following the
filing of Defendants' response to the consolidated or amended
complaint designated by the court-appointed lead plaintiff, on
dates to be selected by the Court.
A full-text copy of the District Court's January 3, 2019 Order is
available at https://tinyurl.com/y8u75rso from Leagle.com.
John Mulquin, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, represented by J. Alexander Hood, II --
ahood@pomlaw.com -- Pomerantz LLP, pro hac vice, Jeremy A.
Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP, pro hac vice
& Jennifer Pafiti -- jpafiti@pomlaw.com -- Pomerantz LLP.
Nektar Therapeutics, Howard W. Robin & Gil Labrucherie, Defendants,
represented by Sara B. Brody -- SBRODY@SIDLEY.COM -- Sidley Austin
LLP, Alison Fiona Dame-Boyle -- ADAMEBOYLE@SIDLEY.COM -- Sidley
Austin, Matthew James Dolan -- mdolan@sidley.com -- Sidley Austin
LLP & Robin Eve Wechkin -- RWECHKIN@SIDLEY.COM -- Sidley Austin
LLP.
NEW JERSEY: Court Tosses Out NJSP Inmate's IPC Claim
----------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion granting in part and denying in part Defendant's
Second Motion to Dismiss (Motion) Plaintiff's Amended Complaint
pursuant to Federal Rules of Civil Procedure (FRCP) 12(b)(1) and
12(b)(6) in the case captioned SHAMSIDDIN A. ABDUR-RAHEEM,
Plaintiff, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, et al.,
Defendants. Civil Action No. 15-1743 (MAS) (TJB). (D.N.J.).
Pro se Plaintiff Shamsiddin A. Abdur-Raheem, confined at New Jersey
State Prison (NJSP) in Trenton, New Jersey, filed a Complaint
pursuant to 42 U.S.C. Section 1983, alleging various violations of
his constitutional rights and other related state law claims.
The Amended Complaint includes the following causes of action: (1)
due process violations (2) a freedom of speech violation; (3) state
law negligence, gross negligence, and intentional infliction of
emotional distress (4) an equal protection violation (5) an Eighth
Amendment cruel and unusual punishment violation (6) violations
under New Jersey's Open Public Records Act (OPRA) (7) denial of
access to the courts (8) deprivation of property; (9) denial of
right to petition the government (10) violations under the New
Jersey Civil Rights Act and (11) libel and slander claims.
The Court denies the Motion as to Defendants Alaimo and Campos on
the Plaintiff's Eighth Amendment claim related to NJSP's ping-pong
toilets and denies the motion on the Plaintiff's state law tort
claims for negligence, gross negligence, and intentional infliction
of emotional distress. The Court grants the Motion on all other
claims that Defendants have sought to dismiss in their Motion.
Among other things, the Defendants allege that the Plaintiff's due
process claims arising out of his placement in Involuntary
Protective Custody (IPC) should be dismissed for failure to state a
claim.
The Court agrees.
It is clear that the Plaintiff is attempting to revive his IPC
claim, by reasserting that his placement in IPC without a hearing
violates his due process rights and that his inability to
congregate with other inmates amounts to a constitutional
violation. Plaintiff, however, adds no significant facts that would
change this Court's analysis from when it initially dismissed this
claim and subsequently denied Plaintiff's motion for
reconsideration. As previously explained, the Supreme Court's
decision in Sandin v. Conner, 515 U.S. 472 (1995), foreclosed the
argument that placement in segregated confinement necessarily
violates an inmate's due process rights. Because Plaintiff cannot
establish an underlying deprivation of a legally cognizable liberty
interest, he fails to demonstrate a violation of his due process
rights. The Court, therefore, grants Defendants' Motion on
Plaintiff's due process claim arising out of his placement in IPC
for reasons already expressed in its March 20, 2017 and November 7,
2017 Opinions.
A full-text copy of the District Court's December 31, 2018 Opinion
is available at https://tinyurl.com/yco998le from Leagle.com.
SHAMSIDDIN A. ABDUR-RAHEEM, individually and as a class action
member representing New Jersey Department of Corrections inmates,
Plaintiff, pro se.
SHAMSIDDIN A. ABDUR-RAHEEM, individually and as a class action
member representing New Jersey Department of Corrections inmates,
Plaintiff, represented by ALEXANDER R. SHALOM, AMERICAN CIVIL
LIBERTIES UNION OF NEW JERSEY FOUNDATION.
GARY M. LANIGAN, STEPHEN D'ILIO, ANTONIO CAMPOS, GEORGE ROBINSON,
DONALD KILPATRICK, COREY FORBES & JOHN FALVEY, Defendants,
represented by KAI WENDELL MARSHALL-OTTO , Office of the Attorney
General.
NFL: Sports Betting Expert Expects Class Action Over Blown Calls
----------------------------------------------------------------
Zack Smolen, writing for 12UP.com, reported that this year's NFC
Championship Game was one of the most poorly officiated contests in
recent memory, and not only cost the New Orleans Saints a trip to
the Super Bowl, but also resulted in gamblers losing a ton of
money.
While Saints fans have taken to social media to express their
disdain for the bad calls and no-calls, sports betting expert
Darren Rovell of the Action Network expects that bettors who took
the Saints will take their complaints to the next level.
That's right, Mr. Rovell expects a full-on class action lawsuit
against the NFL to be filed due to monetary losses sustained as a
result of the bad calls.
While these aggrieved gamblers probably won't get their day in
court, they at least have some leg to stand on to help make their
argument, as mobile betting service Points Bet USA announced that
they will refund all wagers placed on the Saints.
The NFL should follow the lead of Points Bet USA and try and get
out in front of this issue. While they would probably win any
lawsuit filed against them, they should at least develop a policy
to protect those who have given the sport untold new riches via
gambling from such unfair circumstances.
It's the least they could do after assigning the game to an
official who used to play for one of the teams. [GN]
NIAGARA COUNTY, NY: Strip Search Suit Proceeds for 2 Inmates
------------------------------------------------------------
The United States District Court for the Western District of New
York issued a Decision and Order granting in part and denying in
part Defendant's Motion for Summary Judgment in the case captioned
DEDRICK WILLIAMS, MARQUESSA PAGE, and CAMILE SMITH, Plaintiffs, v.
THE COUNTY OF NIAGARA; THOMAS BEILEIN, both individually and in his
official capacity as Sheriff of the County of Niagara; SAMUEL
MUSCARELLA, both individually and as Undersheriff of the County of
Niagara; and JOHN SAXTON, both individually and as Major in the
Niagara County Sherriff's Office, Defendants. No. 06-CV-291-A.
(W.D.N.Y.).
The case began as a putative class action challenging a policy at
the Niagara County Jail (NCJ) that, in practice, required certain
detainees, namely, those remanded to the NCJ from local jails in
Niagara County, New York to be strip searched prior to being
admitted to the NCJ.
The Defendants in this case are the County of Niagara and several
high-ranking officials in the Niagara County Sherriff's Office,
each of whom is sued in both his official and individual
capacities. The principles governing liability under Section 1983
are different for each type of defendant.
The Fourth Amendment prohibits unreasonable searches and seizures.
As its text makes clear, the ultimate touchstone of the Fourth
Amendment is reasonableness. The test of reasonableness under the
Fourth Amendment, however, is not capable of precise definition or
mechanical application and, in each case it requires a balancing of
the need for the particular search against the invasion of personal
rights that the search entails.
The context in which a Fourth Amendment search occurs helps inform
the search's reasonableness. As a general matter, a court
considering a Fourth Amendment claim must consider the scope of the
particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is
conducted. Searches of the sort at issue in these cases present two
often countervailing considerations: Detention facilities are
unique places fraught with serious security dangers but at the same
time, it is difficult to underestimate the degree to which such
searches may invade the personal privacy of inmates. Balancing
those considerations can be difficult, because while inmates do not
enjoy the full range of constitutional rights possessed by
unincarcerated individuals, the Fourth Amendment still requires
that searches even those in the prison context be reasonable.
Each of the three Plaintiffs in this case testified that he or she
was strip searched as part of the NCJ's admissions process. Two of
the Plaintiffs Page and Smith were strip searched following
ordinary arrests. The third Plaintiff Williams, claims to have been
strip-searched following what the Defendants characterize as a
bizarre incident in Niagara Falls City Court in which the presiding
judge arrested an entire courtroom" after no one admitted to
possessing what the judge believed was a ringing cell phone.
The Fourth Amendment issue in this case concerns Niagara County
Sheriff's Department Policy 1109. Policy 1109 states that it is the
policy of the NCJ to conduct thorough searches of all inmates
within the facility to detect contraband, to deter inmates from
fabricating introducing, or conveying contraband and to detect
potential security breaches within the facility. To that end,
Policy 1109 establishes a procedure in regards to the utilizing of
the Strip search upon inmates entrusted to the care of the NCJ to
detect contraband. For instance, Policy 1109 requires strip
searches of detainees entrusted to the care of the NCJ when they
reenter their housing units from work detail; following a contact
visit; based upon reasonable suspicion; or following a court
appearance whereupon there is a reasonable expectation of contact
with the public.
To justify Policy 1109's application to detainees remanded to the
NCJ from other facilities, Captain Engert also identified a concern
that such detainees might be more likely to introduce contraband
into the NCJ. Captain Engert, for instance, testified about the
seizure of contraband from inmates who come off the Niagara Falls
City Court buses. Captain Engert also identified a concern that, if
detainees were not strip searched prior to entering the NCJ from a
local jail in Niagara County, those detainees would certainly be
targeted by other detainees to be the one who would be bringing
contraband into the facility whether the detainee wanted to or
whether he didn't want to. Indeed, Captain Engert testified that,
if the NCJ had a policy that flagged inmates who would not be
subjected to a screening process when they come in the facility,
common sense would dictate that that inmate would be utilized,
potentially, as a vehicle for contraband entering into the
facility.
The Court finds that the Defendants have established that they are
entitled to summary judgment as to Page and Smith's claims against
Niagara County and the individual Defendants in their official
capacities. There is no genuine factual dispute concerning whether
Policy 1109, as applied to detainees arriving at the NCJ from local
jails in Niagara County, is reasonably related to legitimate
security interests.
Policy 1109 reasonably furthers that goal by attempting to
eliminate one avenue through which detainees might introduce
contraband into the NCJ: By obtaining contraband at another,
possibly less secure, facility before being transported to the NCJ.
For instance, the record shows that detainees who arrive at the NCJ
from other local jails are, prior to remand, sometimes placed in
situations where it would be easy to acquire contraband, such as in
public courtrooms or during visits with family members or
attorneys. Compounding the risk posed by such opportunities,
Captain Engert has no ability to ensure that officers at other
jails take adequate steps to detect and intercept contraband. For
instance, Captain Engert testified that detainees at the Niagara
Falls City Jail are not subject to active supervision, that is,
detainees at the Niagara Falls City Jail are not, even in a group
setting, consistently monitored by a single officer. And,
notwithstanding whether local jails in Niagara County do employ
active supervision, Captain Engert has no control over the
processing procedures, the security procedures, the supervision
procedures or the staff that perform those procedures. At bottom,
Captain Engert testified that it's not good correctional practice
to base the NCJ's security protocols on assumptions about the
tactics and the policies and procedures of another facility.
Particularly when Captain Engert is afforded the deference he is
due, this is an eminently reasonable conclusion.
It is therefore reasonable for NCJ officials to conclude that
detainees remanded to the NCJ from other jails must be strip
searched before entering the NCJ. Prior to remand, these detainees
have had the opportunity to obtain contraband from the outside
world, and they have been in facilities whose security policies are
either unknown, inadequate, or unverifiable.
Of course, on a motion for summary judgment, the Court must draw
all justifiable inferences in favor of the non-moving party. But in
a case challenging a prison regulation, a court's inferences
regarding disputed matters of professional judgment must accord
deference to the views of prison authorities. Because the
Plaintiffs have not done so, the Court must defer to the judgment
of correctional officials at the NCJ.
Thus, based on the record before the Court, the Court concludes
that Policy 1109, as applied to Plaintiffs Page and Smith, is
reasonable within the meaning of the Fourth Amendment. As a result,
the Court directs judgment in favor of the County of Niagara and
Defendants Beilein, Muscarella and Saxton in their official
capacities.
Defendants Beilein, Muscarella and Saxton are also sued in their
individual capacities. In order to establish individual liability
under Section 1983, a plaintiff must show (a) that the defendant is
a person' acting under the color of state law and (b) that the
defendant caused the plaintiff to be deprived of a federal right.
As to Page and Smith's claims, the Court enters judgment for the
individual Defendants in their individual capacity for the same
reasons the Court entered judgment for the individual Defendants in
their official capacities. As stated above, there is no genuine
factual dispute concerning whether Page and Smith were deprived of
a federal right when they were strip searched after being remanded
to the NCJ from the Niagara Falls City Jail. Thus, the individual
Defendants cannot be liable in their individual capacities.
As the Court noted in a prior Decision and Order, there is a
factual dispute over whether Williams, as well as all other
detainees arrested as the result of an unusual group arrest on
March 11, 2005, were, in fact, strip searched. At his deposition,
Williams testified that he was strip searched; the Defendants,
however, claim that he was not, and that he has changed his story.
The Court has also previously noted that, if Williams was strip
searched following the March 11, 2005 incident at Niagara Falls
City Court, the circumstances surrounding that search are, to say
the least, unusual. Specifically, the Court previously noted that,
if those arrested on March 11, 2005 were strip searched, it is far
from certain that strip searching those arrestees was, under the
strange and unique circumstances of the arrests, reasonable.
Despite the factual question concerning whether Williams was strip
searched, the Defendants urge the Court to grant their motion for
summary judgment as to Williams.
After careful review of the record, the Court cannot conclude that
this is one of those rare circumstances in which the Defendants are
entitled to summary judgment notwithstanding factual disputes in
the record. In addition to Williams' admittedly equivocal testimony
that he was strip searched on March 11, 2005, the Court has also
considered Captain Engert's testimony that there were other inmates
who were there who we had brought to court in the morning who were
there for other reasons who, it appears, were strip searched.
Although it is a close question, when the evidence is viewed in the
light most favorable to Williams as it must be the Defendants'
motion for summary judgment as to Williams' claims must be denied.
A trial will be necessary as to Williams' claims.
Accordingly, the Court grants the Defendants' motion for summary
judgment as to Plaintiffs Page and Smith. The Defendants' motion
for summary judgment is denied as to Plaintiff Williams.
A full-text copy of the District Court's January 3, 2019 Decision
and Order is available at https://tinyurl.com/yapmkby8 from
Leagle.com.
Dedrick Williams, both individually and on behalf of a class of
others similarly situated, Plaintiff, represented by Bruce E.
Menken, Beranbaum Menken Ben-Asher & Bierman LLP, David G. Jay,
Elmer R. Keach, III, Law Offices of Elmer Robert Keach, III, PC,
Gary E. Mason, Whitfield Bryson & Mason LLP, Jason J. Rozger,
Beranbaum Menken Ben-Asher & Bierman LLP & Nicholas A. Migliaccio
-- nmigliaccio@classlawdc.com -- Migliaccio & Rathod.
Marquessa Page & Camile Smith, individually and on behalf of a
Class of others similarly situated, Plaintiffs, represented by
Elmer R. Keach, III, Law Offices of Elmer Robert Keach, III, PC &
Nicholas A. Migliaccio, Migliaccio & Rathod.
The County of Niagara, Thomas Beilein, both individually and in his
official capacity as Sheriff of the County of Niagara, Samuel
Muscarella, both individually and as Undersheriff of the County of
Niagara & John Saxton, both individually and as Major in the
Niagara County Sheriff's Department, Defendants, represented by
Frank T. Gaglione, Hiscock & Barclay, LLP, James Paul Domagalski --
jdomagalski@barclaydamon.com -- Barclay Damon, LLP & Nicholas John
DiCesare -- ndicesare@barclaydamon.com -- Barclay Damon, LLP.
NY GREAT STONE: Fails to Pay OT Under FLSA/NYLL, Chavez Alleges
---------------------------------------------------------------
JORGE LUIS CHAVEZ, on behalf of himself, and others similarly
situated v. NY GREAT STONE INC., and MICHAEL YE, individually, Case
No. 1:19-cv-00193 (E.D.N.Y., January 10, 2018), alleges that
pursuant to the Fair Labor Standards Act and the New York Labor
Law, the Plaintiff is entitled to recover from the Defendants:
(1) unpaid overtime compensation;
(2) liquidated damages;
(3) prejudgment and post-judgment interest; and
(4) attorneys' fees and costs.
NY Great Stone Inc. is a domestic business corporation organized
under the laws of the state of New York, with a principal place of
business in Flushing, New York. Michael Ye is an owner, officer,
director and/or managing agent of the Corporate Defendant.
NY Great Stone offers services to the public in the general
contracting, countertop and stone fabrication and installation, and
construction industry.[BN]
The Plaintiff is represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
708 Third Avenue - 6th Floor
New York, NY 10017
Telephone: (212) 209-3933
Facsimile: (212) 209-7102
E-mail: jcilenti@jcpclaw.com
pcooper@jcpclaw.com
OASIS POWER: Albrecht Files Bid to Compel Production of Docs
------------------------------------------------------------
A motion to Compel Production of Documents in Compliance with
Non-Party Subpoena has been filed by Kenneth Albrecht in the case
captioned Kenneth Albrecht, on behalf of himself and all others
similarly situated, Plaintiff v. Oasis Power, LLC doing business
as: Oasis Energy, Defendant, Case No. 6:19-mc-00006-CEM-DCI (M.D.
Fla., January 16, 2019).
Oasis Power, LLC, doing business as Oasis Energy, supplies
electricity and natural gas to residential, small business, and
commercial consumers in New York, New Jersey, Pennsylvania,
Maryland, Massachusetts, and Illinois. The company was founded in
2008 and is based in Houston, Texas. As of July 31, 2015, Oasis
Power, LLC operates as a subsidiary of Spark HoldCo, LLC.[BN]
The Plaintiff is represented by:
Andrew John Shamis, Esq.
Shamis & Gentile, PA
14 NE 1st Ave, Suite 1205
Miami, FL 33132
Tel: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@sflinjuryattorneys.com
- and -
Manuel Santiago Hiraldo, Esq.
Hiraldo PA
401 E Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Tel: (954) 400-4713
Email: mhiraldo@hiraldolaw.com
- and -
Scott Adam Edelsberg, Esq.
Edelsberg Law, PA
19495 Biscayne Blvd.
Aventura, FL 33180
Tel: (305) 975-3320
Email: scott@edelsberglaw.com
OC TRANSPO: Double Amputee of Jan.11 Crash Chooses Independent Suit
-------------------------------------------------------------------
Those affected by the January 11th bus crash in Ottawa are
exploring their legal options.
A wife and mother of two who was crushed in the OC Transpo Westboro
Station bus crash on January 11th, suffered two above-knee
amputations and will remain separated from her family and in
hospital for an indeterminate period. She was lifted from the
second level of the bus using the Jaws of Life, and was taken to
hospital in critical condition. Despite her injuries, her first
thoughts were of others: she expressed hope that some part of her
legs might be able to medically assist someone else, but
unfortunately the damage to her legs was too severe.
The care provided by hospital staff has been of the highest
quality. Her family gather around to lift her spirits. The reality
is only beginning to set in: the road ahead will be long and
painful -- emotionally, mentally and physically. Moving from
optimism to anger to grief to worry and around and around again,
her biggest concern is how her family will afford the immense care
and support required to get her back to being independent and able
to partner with her husband and nurture her children.
Meghan Hull Jacquin, partner at Howie, Sacks & Henry LLP, has been
retained to ensure that she and her family are supported through
all possible means from the moment she leaves the hospital for her
lifetime.
Concerned about the Class Action announcement, Hull Jacquin
believes that while joining a class action may be the right
decision for some, all of the victims of this tragic crash should
speak to a lawyer to determine if bringing an individual case is
the better way of protecting their rights and seeking all of the
compensation they deserve. "The legislation surrounding injuries
suffered by victims of motor vehicle accidents in Ontario is
complex. In order to best protect their rights, victims are
encouraged to consult with lawyers who are experts in litigating
motor vehicle accidents within the Province of Ontario".
About Howie, Sacks & Henry LLP (HSH)
Formed in 2000, HSH is consistently ranked as one of Canada's top
personal injury law firms. With a mission to handle serious
personal injury cases with compassion and professionalism, HSH
strives to ensure its clients receive adequate compensation for
their pain, suffering, damages and future needs.
For further information: To learn more about your choices, contact
Meghan Hull Jacquin at mhull@hshlawyers.com or 416-361-7561. She
consults free of charge and her firm advances claims on a
contingency basis. [GN]
OPTIO SOLUTIONS: Muldowney Suit Alleges FCRA Violation
------------------------------------------------------
A class action lawsuit has been filed against Optio Solutions LLC.
The case is styled as Karen Muldowney, individually and on behalf
of all others similarly situated, Plaintiff v. Optio Solutions LLC
doing business as: Qualia Collection Services, Defendants, Case No.
5:19-cv-00055-MAD-ATB (N.D. N.Y., January 16, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Credit Reporting Act.
Optio Solutions, LLC, doing business as Qualia Collection Services,
provides accounts receivable management and debt collection
services. The company provides pre-collection and collection
solutions through written demands, interactive phone calls,
collection calls, and insurance and self-pay messages. It caters to
healthcare, education, financial, home service, and professional
service industries. The company is based in Petaluma, California.
Optio Solutions, LLC operates as a subsidiary of CrossCheck,
Inc.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
Sanders Law Firm, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516) 203-7600
Fax: (516) 281-7601
Email: csanders@barshaysanders.com
PENNSYLVANIA: Lee Sues Over Unpaid Wages for Post-Shift Work
------------------------------------------------------------
Robert Lee, Jr., individually and for all others similarly
situated, Plaintiff, v. Pennsylvania Department of Corrections,
Defendant, Case No. 2:19-cv-00241-CMR (E.D. Pa., January 17, 2019)
contends that Defendant has violated the Fair Labor Standards Act
of 1938 ("FLSA") and the Pennsylvania Minimum Wage Act of 1968
("PMWA") by knowingly suffering or permitting Corrections Officer
Trainees and Corrections Officer 1s ("CO1s") to perform
approximately 45 minutes of unpaid post-shift work each day.
The Defendant employs Corrections Officer Trainees and CO1s to
monitor prisoner movement and activities, make rounds and conduct
head counts and security checks, observe prisoner conduct and
behavior and respond to emergency situations in all 24 of its
correctional institutions.
Plaintiff routinely clocked-out and left work 45 minutes after his
scheduled shift end-time as a result of having to wait for the
employee replacing him to arrive at the post, complete the required
information transfer, walk to the equipment window, wait in line to
return his equipment, pass through security and leave the building,
notes the complaint.
Despite knowing that Corrections Officer Trainees and CO1s
routinely clock-out approximately 45 minutes after their scheduled
shift-end time each day, Defendant has never paid these employees
for their post-shift work or done anything to ensure they could be
relieved of all duties and leave work at their scheduled shift
end-time, asserts the complaint.
Plaintiff is an adult citizen of the Commonwealth of Pennsylvania
who resides in Philadelphia County. In October 2017, Defendant
hired Plaintiff to work as a full-time Corrections Officer Trainee
at the SCI Chester prison in Chester, PA. Plaintiff worked in this
position until his termination in October 2018.
The Pennsylvania Department of Corrections is a state government
entity with a Central Office in Mechanicsburg, PA (Cumberland
Co.).[BN]
The Plaintiff is represented by:
David J. Cohen, Esq.
STEPHAN ZOURAS, LLP
604 Spruce Street
Philadelphia, PA 19106
Phone: (215) 873-4836
Email: dcohen@stephanzouras.com
- and -
James B. Zouras, Esq.
Ryan F. Stephan, Esq.
STEPHAN ZOURAS, LLP
100 North Riverside, Suite 2150
Chicago, IL 60606
Phone: 312-233-1550
Email: rstephan@stephanzouras.com
jzouras@stephanzouras.com
POPSOCKETS LLC: Faces Suit Over Blind-Inaccessible Web Site
-----------------------------------------------------------
ARETHA CROSSON, Individually and as the representative of a class
of similarly situated persons v. POPSOCKETS LLC, Case No.
1:19-cv-00200 (E.D.N.Y., January 10, 2018), accuses Popsockets of
failing to design, construct, maintain, and operate its Web site --
http://www.Popsockets.com/-- to be fully accessible to and
independently usable by the Plaintiff and other blind or
visually-impaired persons.
Popsockets LLC, is a Colorado Foreign Limited Liability Company
doing business in New York with its principal place of business
located at 3033 Sterling Circle, in Boulder, Colorado.
Popsockets provides to the public the Web site, which provides
consumers with access to an array of goods and services, including,
the ability to view the various lines of mobile devise grips,
mounts, cases, and other related products, and make purchases among
other features.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
44 Court Street, Suite 1217
Brooklyn, NY 11201
Telephone: (917) 373-9128
E-mail: ShakedLawGroup@gmail.com
QUALITY BEVERAGE: Court Dismisses Teixeira Unpaid Wages Suit
------------------------------------------------------------
The United States District Court for the District of Massachusetts
issued a Memorandum and Order granting Defendant's motion to
dismiss on the grounds that the state law claim is preempted by
Section 301 of the Labor Management Relations Act (LMRA) in the
case captioned CHAD TEIXEIRA, For Himself and for Others Similarly
Situated, Plaintiff, v. QUALITY BEVERAGE LIMITED PARTNERSHIP,
Defendant. Civil Action No. 18-11589-NMG. (D. Mass.).
Plaintiff Chad Teixeira brings this putative class action, on
behalf of himself and at least 16 other similarly situated
employees, against his employer, Quality Beverage Limited
Partnership (Quality Beverage). Teixeira alleges that Quality
Beverage improperly diverted funds to pay health insurance premiums
in excess of the rate provided under a collective bargaining
agreement (CBA) and thus owes those employees unpaid wages pursuant
to M.G.L. c. 149, Sections 148 and 150., 29 U.S.C. Section 185.
A state law claim involving a CBA is properly removable to federal
court on the basis of the doctrine of complete preemption so long
as there is a colorable argument that Section 301 of the LMRA
preempts that claim. Section 301 preempts a state law claim if that
claim requires the court to interpret a CBA. Where the state law
claim establishes rights and obligations independent of a labor
contract, however, such that resolution of the claim requires only
consultation with but not actual interpretation of the CBA, that
claim is not preempted by Section 301.
If Section 301 preempts a state law claim, that claim must either
be treated as a § 301 claim or dismissed. When the CBA calls for
final and binding arbitration, the arbitrator's decision is
ordinarily final and courts generally do not allow employees to
challenge that decision under Section 301 unless there are
circumstances that have impugned the integrity of the arbitration
process, such as fraud or an inadequate grievance procedure.
That wage claim is premised upon a provision in the applicable CBA
whereby health insurance premiums of Quality Beverage employees
were reimbursed in whole or in part. There was a colorable argument
at the time of removal that the state law claim required the
construction of the CBA to determine the amount of wages owed to
those employees.
Teixeira does not contend that the Massachusetts Wage Law
establishes an independent right of employees to be exempted from
paying health insurance premiums above a certain limit. Rather, he
alleges that he and other employees are owed back wages as a result
of a violation of the CBA that sets a limit on the employees'
health insurance contributions. Plaintiff's state law claim is thus
dependent upon an interpretation of contractual rights under the
CBA. The conclusion that Teixeira's state law claim is not
independent of the labor contract is further supported by the
Arbitrator's finding that Quality Beverage violated the CBA when it
charged its employees more than the premium limits. That finding
was necessarily based upon an interpretation of the CBA.
Because the Court finds that Section 301 preempts Teixeira's state
law claim under M.G.L. c. 149, Sections 148 and 150, it must treat
that claim in accordance with the LMRA. The CBA contains a
provision establishing that a decision of the arbitrator is final
and binding and Teixeira does not claim that the integrity of the
arbitration process was impugned by fraud or some other fundamental
unfairness. Plaintiff's claim is therefore precluded by the
Arbitrator's final and binding decision on February, 24, 2018, and
as a result that claim will be dismissed.
A full-text copy of the District Court's January 3, 2019 Memorandum
and Order is available at https://tinyurl.com/y7962yeq from
Leagle.com.
Chad Teixeira, For Himself and for Others Similarly Situated,
Plaintiff, represented by Alyssa M. Jankowski --
ajankowski@edenrafferty.com -- Law Office of Richard Rafferty PC,
Gregory P. Benoit, Eden Rafferty Tetreau & Erlich & Richard J.
Rafferty, Jr., Eden, Refferty, Tetreau & Erlich.
Quality Beverage Limited Partnership, Defendant, represented by
Geoffrey P. Wermuth, Murphy, Hesse, Toomey & Lehane, LLP.
RBS CITIZENS: 3d Cir. Vacates Class Certification in Reinig Suit
----------------------------------------------------------------
The United States Court of Appeals, Third Circuit, issued an
Opinion vacating the District Court's judgment granting Plaintiffs'
Motion for Class Certification in the case captioned ALEX REINIG;
KEN GRITZ; BOB SODA; MARY LOU GRAMESKY; PETER WILDER SMITH; WILLIAM
KINSELLA; DANIEL KOLENDA; VALERIE DAL PINO; AHMAD NAJI; ROBERT
PEDERSON; TERESA FRAGALE; DAVID HOWARD; DANIEL JENKINS; MARK ROSS,
v. RBS CITIZENS, N.A., Appellant. No. 17-3464. ((3rd Cir.).
The interlocutory appeal authorized by Rule 23(f) of the Federal
Rules of Civil Procedure presents the with two significant
questions:
-- First, did the District Court err in certifying a class of
Citizens Bank (N.A.) Mortgage Loan Officers from ten different
states who bring claims alleging that they were unlawfully denied
overtime pay?
-- And second, may the Court exercise pendent appellate
jurisdiction over the District Court's order certifying a
collective action under Section 216(b) of the Fair Labor Standards
Act (FLSA), an otherwise non-appealable order?
Alex Renig, Ken Gritz, and Bob Soda filed a class action complaint
alleging that Citizens, by maintaining an unofficial policy or
practice requiring MLOs to work off the clock in excess of forty
hours per week, failed to pay overtime wages in accordance with the
FLSA and Pennsylvania law. Because this work went unreported,
Plaintiffs claimed that they were not paid for their off-the-clock
hours in violation of the FLSA and Pennsylvania's wage-and-hour
law.
On appeal, Citizens argues that the District Court erred in
certifying the Plaintiffs' state-law claims under Rule 23. Although
the Court expresses reservations about the District Court's
ultimate findings, the Court cannot say at this juncture that the
District Court abused its discretion in certifying the putative
class based upon the record before the Court. Rather, the Court
finds only that the District Court failed to provide a sufficiently
rigorous analysis to support its conclusions and will therefore
vacate and remand its order granting class certification under Rule
23.
Citizens argues that remand is necessary because the Court failed
to define the class or class claims as mandated by Rule
23(c)(1)(B). the Plaintiffs counter that the SM Reports clearly set
out the class definition, and defined the classes as identified in
the Amended Complaint.
To satisfy Rule 23(c)(1)(B), an order granting class certification
must include: (1) a readily discernible, clear, and precise
statement of the parameters defining the class or classes to be
certified, and (2) a readily discernible, clear, and complete list
of claims, issues or defense to be treated on a class basis.
Wachtel v. Guardian Life Ins. Co., 453 F.3d 179, 187-88 (3d Cir.
2006). Although a motion for class certification presents a
discretionary question for a district court, the court 'must
clearly articulate its reasons, in part, so we can adequately
review the certification decision on appeal under Rule 23(f).
The Court's decision in Marcus is instructive on this issue. In
that case, after applying the Wachtel standard to the facts at
issue, the Court held that the district court failed to satisfy
Rule 23(c)(1)(B) because the court's order, rather than set[ting]
out its own class definition, merely stated that "the New Jersey
sub-class is granted" and then cited to a docket entry for the
plaintiff's amended notice of motion for class certification.
Marcus, 687 F.3d at 592. While recognizing that the district court
and counsel may have shared an understanding of the class
definition, the Court nevertheless emphasized that post hoc
clarification is no substitute for a readily discernible, clear,
and precise statement of the parameters defining the class to be
certified.
The Court remanded the case to the district court with instructions
to provide a more clearly defined class and set of claims, issues,
or defenses to be given class treatment.
Here, as in Marcus, the Court is forced to comb through and
cross-reference multiple documents in an attempt to cobble together
the parameters defining the class and a complete list of the
claims, issues, and defenses to be treated on a class basis.
However, wading through the SM Reports proves equally unavailing.
The second report, like the report in Marcus, does not define the
claims, issues, or defense to be treated on a class basis at all.
Although the first report contained a class definition, it does so
merely by cross-referencing Plaintiffs' Amended Complaint.
The District Court's order here requires the Court to do just that,
and thus remand is warranted.
Citizens contends that the District Court erred in finding that the
Plaintiffs' evidence satisfied Rule 23(a)'s commonality requirement
and Rule 23(b)(3)'s predominance requirement. Rule 23(a)(2)'s
commonality requirement requires that the putative class members
share at least one question of fact or law in common with each
other.
At the class certification stage, the predominance requirement is
met only if the district court is convinced that the essential
elements of the claims brought by a putative class are 'capable of
proof at trial through evidence that is common to the class rather
than individual to its members.' In practice, this means that a
district court must look first to the elements of the plaintiffs'
underlying claims and then, through the prism of Rule 23, undertake
a rigorous assessment of the available evidence and the method or
methods by which the plaintiffs propose to use the evidence to
prove those elements.
To satisfy their wage-and-hour claims, the Plaintiffs must show
that: (1) pursuant to Citizens' unwritten
policy-to-violate-the-policy, the class MLOs performed overtime
work for which they were not properly compensated and (2) Citizens
had actual or constructive knowledge of that policy and of the
resulting uncompensated work.
Here, Citizens contends that the Plaintiffs' representative
evidence fails to satisfy either the commonality or predominance
requirements because it is insufficient to permit a reasonable jury
to determine that high-level officers or executives of Citizens
with responsibility for formulating companywide policies knew or
should have known that each class member was working overtime off
the clock, i.e., without reporting hours. The Plaintiffs disagree,
contending that the record evidence is more than sufficient for a
jury to conclude that Citizens operated a `broader company policy'
to discourage MLOs from accurately reporting their overtime hours.
In order for the Plaintiffs' representative evidence to satisfy the
commonality/predominance requirements of Rule 23, that evidence
must be sufficiently representative of the class as a whole such
that each individual Plaintiff could have relied on the sample to
establish liability if he or she had brought an individual action.
That is to say, if the sample could have sustained a reasonable
jury finding as to hours worked in each employee's individual
action, that sample is a permissible means of establishing the
employees' hours worked in a class action.
First, from an evidentiary standpoint, the Court finds it difficult
to discern how the District Court arrived at its conclusion that
the Plaintiffs' representative evidence was sufficient to establish
either the existence of a companywide policy or Citizens' knowledge
of it. The Special Master's predominance analysis merely states
that the Plaintiffs have demonstrated that the unofficial policy
upon which their claims are predicated is amenable to common proof
and that this common question will predominate over any
individualized questions and cites the Plaintiffs' substantial
evidence in the form of testimony from roughly two dozen MLOs. Yet,
the SM Reports do not specify what testimony in particular was
relied upon to reach that conclusion. The reports state that the
MLOs generally testify that, while Citizens maintained an official
policy that required all hours worked to be reported and paid, and
while Citizens officially required overtime to be requested and
approved in advance, Citizens' managers nonetheless regularly and
almost uniformly instructed MLOs not to report all the hours that
they worked.
The class certification order cannot stand. The Court will remand
with instructions that the District Court conduct a rigorous
examination of the factual and legal allegations underpinning the
Plaintiffs' claims before deciding if class certification is
appropriate.
In addition to challenging the District Court's Rule 23 ruling,
Citizens also contests the District Court's non-final FLSA
certification order under the doctrine of pendent appellate
jurisdiction. This doctrine allows the Court in its discretion to
exercise jurisdiction over issues that are not independently
appealable but that are intertwined with issues over which its
properly and independently exercise in its jurisdiction.
Here, the Court must determine, as a matter of first impression,
whether an order granting certification under Rule 23 is
inextricably intertwined with an order granting final collective
action certification under the FLSA. Citizens claims that the Court
may do so because review of the FLSA certification order is
necessary to ensure meaningful review of the Rule 23 order. The
Plaintiffs maintain that, although the Court have jurisdiction to
review the class certification order, the Court's jurisdiction does
not extend to the FLSA order because Rule 23 actions are
fundamentally different from collective actions under the FLSA and
thus cannot be considered inextricably intertwined for purposes of
exercising pendent appellate jurisdiction.
In practice, determining whether plaintiffs are similarly situated
under the FLSA involves considering all relevant factors, such as,
whether the plaintiffs are employed in the same corporate
department, division, and location; whether they advance similar
claims; whether they seek substantially the same form of relief and
whether they have individualized defenses. Although the Court
acknowledges that some of the factors and evidence necessary to
satisfy the prerequisites of Rule 23 and Section 216(b) may overlap
and, as a consequence, our rulings with respect to them may overlap
as well, a mere nexus between the two orders is not sufficient to
justify a decision to assume jurisdiction.
In particular, parties could abuse the doctrine by bringing
insubstantial interlocutory appeals in order to bring before the
Court issues which the Court ordinarily would not be able to review
until a final decision of the district court Therefore, the Court
holds that Rule 23 class certification and FLSA final collective
action certification are not inextricably intertwined. Accordingly,
the Court declines to exercise pendent appellate jurisdiction over
the FLSA collective action certification order in this case.
The Court will leave undisturbed the District Court certifying a
collective action under the FLSA, vacate the District Court's order
granting the Plaintiff's motion for class certification under Rule
23, and remand this matter for further proceedings.
A full-text copy of the Third Circuit's December 31, 2018 Opinion
is available at https://tinyurl.com/ybake3gn from Leagle.com.
Kim M. Watterson [ARGUED], Robert J. Tyler, III, Gretchen W. Root,
Reed Smith, 225 Fifth Avenue, Suite 1200, Pittsburgh, PA 15222.
Thomas E. Hill, Christina Tellado, Holland & Knight, 400 South Hope
Street, 8th Floor, Los Angeles, CA 90071, Counsel for Appellant.
Joshua S. Boyette [ARGUED], Daniel A. Horowitz, Justin L. Swidler,
Swartz Swidler, 1101 Kings Highway North, Suite 402, Cherry Hill,
NJ 08034.
Robert D. Soloff, Soloff Law, 7805 Southwest 6th Court, Plantation,
FL 33324, Counsel for Appellees.
RESURGENT CAPITAL: Brown Hits Misleading Debt Collection Letter
---------------------------------------------------------------
Danielle Brown, individually and on behalf of all others similarly
situated v. Resurgent Capital Services, LP and Defendant Pinnacle
Credit Services, LLC, Case No. 4:18-cv-04643 (S.D. Tex., December
10, 2018), seeks damages and declaratory relief under the Fair Debt
Collections Practices Act.
The Plaintiff alleges that the statement contained in the
Defendants' debt collection letter is materially deceptive to the
unsophisticated consumer, who would believe that Defendant Pinnacle
or a subsequent creditor has the option to change its mind should
he/she not pay the alleged debt. The Defendants made deceptive and
misleading representations when they communicated to the Plaintiff
that Defendant Pinnacle was opting not to sue Plaintiff, when in
fact, it was not permitted to sue as a matter of law.
The Plaintiff is a resident of the State of Texas, County of
Harris, residing at 14220 Park Row Apt. 932, Houston, Texas 77084.
The Defendant Resurgent is a "debt collector" with an address at 55
Beattie Place, Suite 110, Greenville, SC 29601.
The Defendant Pinnacle is a "debt collector" with an address at
2345 Rice Street, Suite 230, Roseville, MN 55113.[BN]
The Plaintiff is represented by:
Jonathan Kandelshein, Esq.
THE LAW OFFICES OF
JONATHAN KANDELSHEIN
18208 Preston Rd, Suite D-9 #256
Dallas, TX 75252
Tel: (469) 677-7863
Fax: (972) 380-8118
E-mail: jonathan.kandelshein@gmail.com
RIVER MEADOWS: Filed for Bankruptcy Amidst Pending Class Action
---------------------------------------------------------------
James T. Mulder, writing for Syracuse.com, reported that the former
owner of James Square nursing home which is facing a raft of
wrongful death lawsuits has filed for bankruptcy.
River Meadows LLC filed a petition for Chapter 7 bankruptcy Jan.
11. Chapter 7 bankruptcy allows a company's assets to be sold off
to pay its debts. A bankruptcy filing also usually halts all
pending legal actions against the debtor.
A pending class action lawsuit against James Square says the
nursing home was so short-staffed when River Meadows owned it
patients were often left lying in their own urine and feces for
hours.
In its filing, River Meadows says it has $2.2 million in assets and
$5.2 million in liabilities. Listed among its unsecured creditors
are individuals who have filed 18 lawsuits alleging poor care at
the nursing home resulted in death and injury to patients.
"Absent a bankruptcy filing, the remaining assets of the company
would be dissipated as a result of creditor activity," said Lisa
Robinson, an attorney for River Meadows.
But a lawyer handling a class action lawsuit against River Meadows
called the bankruptcy filing "gamesmanship."
"They are just trying to delay justice for people harmed by the
nursing home," said Jeremiah Frei-Pearson. He recently got court
approval to amend his class action lawsuit against River Meadows to
include as defendants other individuals and companies he claims
River Meadows used to hide and protect its profits from lawsuits.
"Although they weren't good at running a nursing home, they were
very good at hiding where the money went," Frei-Pearson said.
Robinson, River Meadows' attorney, declined to respond to
Frei-Pearson's allegation.
River Meadows bought James Square in 2015. Judy Kushner, a New
Jersey nursing home operator, and Abraham Gutnicki, an Illinois
lawyer, are 50-50 partners in River Meadows.
The state Attorney General's Office raided James Square in 2017 and
seized records as part of an investigation of patient care problems
at the 440-bed facility at 918 James St. That investigation is
still underway.
Inspection reports and other government data show James Square had
a history of poor care and a shortage of nurses and certified nurse
aides while River Meadows owned it. River Meadows sold the home in
December 2017 to a new owner who changed the facility's name to
Bishop Rehabilitation and Nursing Center.
James Square made a profit of about $1.3 million on revenues of
$39.5 million in 2015, according to data the nursing home reported
to Medicare. It subsequently reported losses of $3.5 million in
2016 and $3.8 million in 2017, years when its occupancy dropped
after it stopped admitting new patients because of quality
problems.
The amended class action lawsuit against River Meadows recently
added Kushner, Gutnicki, Eliezer Friedman, Liberty Senior Holdings
and Excelerate Healthcare Services as defendants.
In court papers Frei-Pearson says Kushner, Gutnicki and Friedman
worked together to take over James Square and established the three
companies to accomplish that.
They structured the deal so revenue was transferred from the
nursing home and River Meadows to Liberty, Excelerate and
themselves to protect the money from lawsuits, according to court
papers. Liberty purchased the property and leased it back to River
Meadows at an inflated rate to "insulate defendants' ill-gotten
gains," the papers say.
Frei-Pearson also says in the court document James Square entered
into an agreement with Excelerate for consulting services and
overpaid for these services as another way of transferring money
out of the nursing home and River Meadows.
Frei-Pearson said if the class action against River Meadows is
delayed by the bankruptcy filing "we are happy to move forward
against the people who actually pocketed the money."
Here are River Meadows' five biggest unsecured creditors and the
amounts they are owed:
Harbor Pharmacy, Oswego $918,367
Assessment Fund Officepool Administration, Syracuse $588,679
CMS Compliance Group, Melville, N.Y. $242,468
Great American Insurance Co. Specialty Accounting, Cleveland
$177,404
American Food & Vending Corp., Liverpool $99,637
The first creditors meeting will be held 11:15 a.m. Feb. 15 in room
207 of Syracuse federal building. [GN]
SAS ANALYTICS: 4th Amendment Claims vs Individual Defendants Junked
-------------------------------------------------------------------
The United States Court of Appeals, Sixth Circuit, issued an
Opinion affirming in part and reversing in part the district
court's decision on Individual Defendant's Motion to Dismiss the
case captioned PATTI JO CAHOO and KRISTEN MENDYK, individuals;
KHADIJA COLE, an individual and on behalf of similarly situated;
HYON PAK; MICHELLE DAVISON, Plaintiffs-Appellees, v. SAS ANALYTICS
INC., et al., Defendants, JULIE A. MCMURTRY (18-1295); STEVEN
GESKEY, SHEMIN BLUNDELL, DORRIS MITCHELL, DEBRA SINGLETON, and
SHARON MOFFET-MASSEY (18-1296), Defendants-Appellants. Nos.
18-1295, 18-1296. (6th Cir.).
Julie McMurtry, Steven Geskey, Shemin Blundell, Dorris Mitchell,
Debra Singleton, and Sharon Moffet-Massey (Individual Agency
Defendants) appeal the district court's decision denying their
Motion to Dismiss based on qualified immunity, in this 42 U.S.C.
Section 1983 action alleging that the Individual Agency Defendants
implemented and oversaw an automated computer system that falsely
determined that the Plaintiffs had committed unemployment insurance
fraud and deprived the Plaintiffs of protected property interests
as a result of those erroneous fraud determinations, without
providing the Plaintiffs with adequate pre-deprivation notice, in
violation of the Fourth and Fourteenth Amendments.
The Court holds that qualified immunity does not protect the
Individual Agency Defendants from Plaintiffs' due process claim
because Plaintiffs plausibly alleged that the Individual Agency
Defendants violated Plaintiffs' clearly-established due process
rights. Conversely, qualified immunity protects the Individual
Agency Defendants from Plaintiffs' equal protection claim because
Plaintiffs failed to allege a plausible equal protection violation.
Finally, qualified immunity protects the Individual Agency
Defendants from Plaintiffs' Fourth Amendment claim because
Plaintiffs failed to plausibly allege that the Individual Agency
Defendants violated Plaintiffs' clearly-established Fourth
Amendment rights.
A full-text copy of the Sixth Circuit's January 3, 2019 Opinion is
available at https://tinyurl.com/ydytrx7k from Leagle.com.
ARGUED: Jason Hawkins, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellants.
Kevin S. Ernst -- kevin@ernstmarkolaw.com -- ERNST & MARKO LAW,
PLC, Detroit, Michigan, for Appellees.
ON BRIEF: Jason Hawkins, Emily A. McDonough, Debbie K. Taylor,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellants.
Jonathan R. Marko, MARKO LAW PLC, 645 Griswold St, Suite 4100,
Detroit, MI 48226, for Appellees.
SERVICE EMPLOYEES: Faces Class Suit in Pa. for Civil Rights Breach
------------------------------------------------------------------
A class action lawsuit has been filed against Service Employees
International Union, Local 668. The case is styled as Megan M.
James, William A. Lester and Angela Pease, individually and on
behalf of others similarly situated, Plaintiffs v. Service
Employees International Union, Local 668, Steve Catanese, in his
official capacity as President of Service Employees International
Union, Local 668, Commonwealth of Pennsylvania Department of Labor
and Industry, Gerard Oleksiak, in his official capacity as
Secretary of Pennsylvania Department of Labor and Industry, Thomas
W. Wolf, in his official capacity as Governor of the Commonwealth
of Pennsylvania, Michael newsome, in his official capacity as
Secretary of the Pennsylvania Office of Administration and Anna
Marie Kiehl, in her official capacities as Cheif Accounting Officer
for the Commonwealth of Pennsylvania and Deputy Secretary for the
Office of Comptroller Operations, Defendants, Case No.
2:19-cv-00053-CB (W.D. Penn., January 17, 2019).
The docket of the case states the nature of suit as violation of
Civil Rights Act.
Service Employees International Union, Local 668 is a Labor union
in Pittsburgh, Pennsylvania.[BN]
The Plaintiff is represented by:
Nathan J. McGrath, Esq.
The Fairness Center
500 North Third Street
Floor 2
Harrisburg, PA 17101
Tel: (844) 293-1001
Fax: (717) 307-3424
Email: njmcgrath@fairnesscenter.org
SOLO HEALTHCARE: Rodich-Annese Sues for Breach of Contract
----------------------------------------------------------
A class action lawsuit has been filed against Solo Healthcare U.S.,
LLC. The case is styled as Valerie Rodich-Annese, individually and
on behalf of all others similarly situated, Plaintiff v. Solo
Healthcare U.S., LLC, Zhejiang Huahai Pharmaceuticals and Prinston
Pharmaceutical, Inc., Defendants, Case No. 2:19-cv-00046-CB (W.D.
Penn., January 16, 2019).
The docket of the case states the nature of suit as breach of
contract.
Solo Healthcare U.S., LLC provides health insurance.[BN]
The Plaintiff is represented by:
D. Aaron Rihn, Esq.
Robert Peirce & Associates, P.C.
707 Grant Street, Suite 2500
Pittsburgh, PA 15219
Tel: (412) 281-7229
Fax: (412) 281-4229
Email: arihn@peircelaw.com
STATE FARM: Seeks 6th Cir. Review of Decision in Hicks Suit
-----------------------------------------------------------
Defendant State Farm Fire & Casualty Company filed an appeal from a
court ruling in the lawsuit entitled SUSAN HICKS, et al. v. STATE
FARM FIRE & CASUALTY CO., Case No. 0:14-cv-00053, in the U.S.
District Court for the Eastern District of Kentucky at Ashland.
As previously reported in the Class Action Reporter, the action was
filed by the Plaintiffs challenging State Farm's methodology in
calculating the "actual cash value" of the damaged portion of an
insured structure upon the occurrence of loss.
The appellate case is captioned as In re: State Farm Fire &
Casualty Company, Case No. 19-501, in the United States Court of
Appeals for the Sixth Circuit.[BN]
Plaintiffs-Respondents SUSAN HICKS, Individually and on behalf of
all others similarly situated, and DON WILLIAMS, individually and
on behalf of all others similarly situated, are represented by:
Erik D. Peterson, Esq.
MEHR, FAIRBANKS & PETERSON TRIAL LAWYERS, PLLC
201 W. Short Street, Suite 800
Lexington, KY 40507-0000
Telephone: (859) 225-3731
E-mail: edp@austinmehr.com
Plaintiff-Respondent SUSAN HICKS, Individually and on behalf of all
others similarly situated, is represented by:
Paula Richardson, Esq.
RICHARDSON, BARBER & WILLIAMSON
86 West Main Street
P.O. Box 1169
Owingsville, KY 40360
Telephone: (606) 674-6337
E-mail: paula_richardson04@yahoo.com
- and -
Jessica Morgan Smith, Esq.
RICHARD & SMITH
P.O. Box 1040
Owingsville, KY 40360-1040
Telephone: (606) 674-8111
Facsimile: (606) 674-6893
E-mail: j.morgan.smith11@gmail.com
Defendant-Petitioner STATE FARM FIRE & CASUALTY COMPANY is
represented by:
Joseph A. Cancila, Jr., Esq.
Heidi Dalenberg, Esq.
RILEY, SAFER, HOLMES & CANCILA LLP
70 W. Madison Street, Suite 2900
Chicago, IL 60602
Telephone: (312) 471-8450
E-mail: jcancila@rshc-law.com
hdalenberg@rshc-law.com
- and -
David T. Klapheke, Esq.
BOEHL, STOPHER & GRAVES LLP
400 W. Market Street, Suite 2300
Louisville, KY 40202
Telephone: (502) 589-5980
Facsimile: (502) 561-9400
E-mail: dklapheke@bsg-law.com
STEPHEN BRUCE: Court Denies Bid to Dismiss J. Cooper's FAC
----------------------------------------------------------
The United States District Court for the Western District of
Oklahoma issued an Order denying Defendant Stephen Bruce &
Associates' Motion to Dismiss the First Amended Complaint in the
case captioned JERNISHA COOPER, individually and on behalf of all
similarly situated consumers, Plaintiff, v. STEPHEN BRUCE &
ASSOCIATES, Defendant. Case No. CIV-18-487-R. (W.D. Okla.).
This case concerns alleged violations of the Fair Debt Collection
Practices Act (FDCPA). The Plaintiff alleges that, at some point,
she incurred a personal debt using a Discover credit card. The
Defendant, a debt collector as that term is defined by the FDCPA,
obtained a judgment for $2,318.99 against the Plaintiff on behalf
of Discover Bank, the original creditor. The Defendant sent the
Plaintiff a dunning letter which noted that the amount she owed
would significantly increase if a garnishment was filed. Arguing
that this letter was false, deceptive, and misleading in violation
of the FDCPA, the Plaintiff filed suit.
Supplementing these recycled merits arguments, the Defendant now
asserts that the Plaintiff's suit should be dismissed because the
Court lacks subject matter jurisdiction. Specifically, the
Defendant asserts that the Plaintiff lacks standing to sue because
she did not suffer a concrete injury. To establish standing a
plaintiff must prove that she (1) suffered an injury in fact an
invasion of a legally protected interest which is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical (2) fairly traceable to a defendant's actions and (3)
likely to be redressed by a favorable judicial decision.
A 'concrete injury,' said the Supreme Court, must be de facto, that
is, it must actually exist. Concrete is not synonymous with
tangible, however: intangible harms may constitute
constitutionally-concrete injuries, and whether such a harm is
sufficiently concrete turns, at least in part, on "history and the
judgment of Congress."
The Plaintiff asserts that the Defendant's alleged violations of
Section 1692e of the FDCPA constitute a sufficiently concrete
injury under Article III. The FDCPA's purpose, in part, is to
eliminate abusive debt collection practices by debt collectors. To
that end, the statute prohibits debt collectors from using any
false, deceptive, or misleading representation or means in
connection with the collection of any debt.
The Plaintiff alleges that the letter she received from the
Defendant violated her statutory right to be free from abusive debt
collection practices by subjecting her to false, deceptive, or
misleading representations. Contrary to the Defendant's
characterization, this is not a bare procedural harm, but rather an
alleged injury sufficiently concrete even if intangible or merely
informational to confer standing. A recent decision from the Sixth
Circuit Court of Appeals offers salient guidance. In Macy v. GC
Services Ltd. Partnership, the Sixth Circuit was faced with a
purported violation of FDCPA notice provisions. 897 F.3d 747, 751
(6th Cir. 2018).
In assessing the defendant's standing challenge, the circuit court
concluded that Spokeo did not mean to disturb the Supreme Court's
prior opinions recognizing that a direct violation of a specific
statutory interest, standing alone, may constitute a concrete
injury without the need to allege any additional harm. Indeed,
where Congress confers a procedural right in order to protect a
concrete interest, a violation of the procedure may demonstrate a
sufficient risk of real harm to the underlying interest to
establish concrete injury without need to allege any additional
harm beyond the one Congress has identified.
Spokeo, then, separated statutory violations pled as concrete
injuries into two types: (1) where the violation of a procedural
right granted by statute is sufficient in and of itself to
constitute concrete injury in fact because Congress conferred the
procedural right to protect a plaintiff's concrete interests and
the procedural violation presents a material risk of real harm to
that concrete interest; and (2) where there is a bare procedural
violation that does not meet this standard, in which case a
plaintiff must allege additional harm beyond the one Congress has
identified.
In light of this discussion, then, the Court is satisfied that the
Plaintiff has standing to bring this suit and that the Court,
therefore, enjoys subject matter jurisdiction over it. Accordingly,
the Court denies the Defendant's motion.
A full-text copy of the District Court's January 3, 2019 Order is
available at https://tinyurl.com/y8aj2n3x from Leagle.com.
Jernisha Cooper, Individually & Jernisha Cooper, On behalf of all
other similarly situated consumers, Plaintiffs, represented by
Katheryn C. Bell, Aries Law Firm PLLC & Daniel Zemel, Zemel Law
LLC.
Stephen Bruce & Associates, Defendant, represented by Justin D.
Meek, Nelson Terry Morton DeWitt & Paruolo, Leah K. Clark, Stephen
L Bruce & Associates & Ryan L. Dean, Nelson Terry Morton DeWitt &
Paruolo.
STITCH FIX: Bishop Files Class Action Over Share Price Drop
-----------------------------------------------------------
Ronald G. Bishop, Sr., individually and on behalf of all others
similarly situated v. Stitch Fix, Inc., Katrina Lake, Paul Yee and
Mike C. Smith, Case No. 3:18-cv-07427 (N.D. Calif., December 10,
2018), is a federal securities class action which seeks remedies
under the Securities Exchange Act of 1934 and is brought on behalf
of a class consisting of all persons or entities who purchased
publicly traded Stitch Fix common stock and sold put option
contracts between June 8, 2018 and October 1, 2018, inclusive.
The Plaintiff alleges that throughout the Class Period, Stitch Fix
made materially false and misleading statements regarding the
strength of its active client growth, its continued investment in
television advertising, and its impact on the Company's financial
prospects, which set investor growth expectations far higher than
what the Company was actually experiencing.
On October 2, 2018, the price of Stitch Fix stock declined $15.60
per share -- more than 35% -- on unusually high volume of more than
39.9 million shares traded, or more than 9.5 times the average
daily volume over the preceding ten trading days, notes the
complaint.
The Plaintiff Ronald G. Bishop, Sr. sold Stitch Fix put options
during the Class Period, and suffered damages.
The Defendant Stitch Fix is incorporated in Delaware and has its
principal executive offices located at 1 Montgomery Street, Suite
1500, San Francisco, CA 94104. Stitch Fix is an online fashion
subscription service. During the Class Period, Stitch Fix's stock
traded on the NASDAQ under the ticker symbol "SFIX."
The Defendant Katrina Lake is the Company's founder, CEO, and a
director. The Defendant Paul Yee is the Company's Chief Financial
Officer. The Defendant Mike C. Smith is the Company's Chief
Operating Officer. [BN]
The Plaintiff is represented by:
Dillon Hagius, Esq.
Richard W. Gonnello, Esq.
Katherine M. Lenahan, Esq.
FARUQI & FARUQI, LLP
685 Third Avenue, 26th Floor
New York, NY 10017
Tel: 212-983-9330
Fax: 212-983-9331
E-mail: dhagius@faruqilaw.com
rgonnello@faruqilaw.com
klenahan@faruqilaw.com
TIGER BRANDS: Listeriosis Victims Sign Up for Class Suit
--------------------------------------------------------
Siboniso Mngadi, writing for IOL.co, reported that at least 500
victims of South Africa's deadly listeriosis outbreak have signed
up for a class action lawsuit to hold Tiger Brands legally and
financially liable for the loss and devastation caused by the
disease between 2017 and 2018.
Human rights lawyer Richard Spoor invited those affected to come
forward during a nationwide advertising campaign that was launched
this week.
Spoor's team was granted permission to launch the class action by
the South Gauteng High Court in December. He said he wanted justice
to prevail in what he termed a "David versus Goliath matter."
"About 206 people died. About 200 women had miscarriages. This was
the biggest food poisoning case in history. I have not been able to
find a reference in any case where such a huge number of people
died," he said.
The source of the outbreak in 2017-2018 was traced to a Tiger
Brands factory in Polokwane.
The World Health Organisation described listeriosis as a serious,
but preventable and treatable disease caused by the bacterium
Listeria monocytogenes. It said the bacteria were widely
distributed in nature and apart from soil, water, vegetation and
the faeces of some animals, and were found in animal products,
including meat and fresh produce.
It said pregnant women and those with compromised immune systems
were most at risk.
In South Africa, many of the people affected by the outbreak had
eaten Tiger Brands polony.
The National Department of Health said there were at least 1000
victims.
Spoor was confident of a strong case against Tiger Brands.
"It is a big case because so many people died, but it won't be hard
to win. It may take one to three years to finalise," said Spoor
whose legal team includes medical doctors and advocates.
"I think our chances are strong. Tiger Brands admitted their
products were contaminated, and people who consumed them could have
become sick, died or lost unborn babies. The only thing they are
denying is that they were negligent and legally liable."
Spoor said he wanted the court to punish the company by making an
order of constitutional damages and awarding additional
compensation for the violation of people's rights.
Before the ad campaign started, 150 victims had already joined the
class action.
Spoor urged others to come forward so they could be compensated. He
said victims who were part of the class action did not have to fork
out any money, but the lawyers would be entitled to recover their
fees from the class members' award, up to a maximum of 20%.
"We are hoping to get as many people as possible. The Minister of
Health agreed and the court allowed him to make the names and
contact details of victims available to a third party. We will
contact them directly to join," Spoor said.
Tiger Brands chief corporate affairs officer Mary Jane Morifi said
the company was committed to acting with honesty and integrity
throughout the process. She said it would work closely with the
attorneys for the claimants so the matter could be expedited.
"We acknowledge the listeriosis outbreak affected all South
Africans. Our thoughts remain with all those who have been victims
of the disease and those who have lost loved ones." [GN]
UK CLEANERS: Gonzales Seeks Unpaid Overtime for Hrs Worked Over 40
------------------------------------------------------------------
Eduardo Gonzalez, individually and on behalf of others similarly
situated, Plaintiff, v. UK Cleaners Inc., La Moll M&S Inc., Sook
Hyun Kim and Jong Choi, Defendants, Case No. 19-cv-00068 (S.D.
N.Y., January 3, 2019), seeks to recover unpaid minimum and
overtime wages and redress for Defendants' failure to provide
itemized wage statements pursuant to the Fair Labor Standards Act
of 1938 and New York Labor Law, including applicable liquidated
damages, interest, attorneys' fees and costs.
Defendants jointly operate two laundry services/drycleaners located
in the Midtown East and Sutton Place sections of Manhattan in New
York City under the names Turtle Bay Cleaners and Knickerbocker
Cleaners where Gonzalez was employed as a packer and a
pickup/drop-off delivery worker. He worked in excess of 40 hours
per week, without appropriate minimum wage and overtime
compensation for the hours that they worked. Defendants also failed
to maintain accurate record-keeping of its employees' hours worked,
says the complaint. [BN]
Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
Email: Faillace@employmentcompliance.com
UNITED STATES: Colorado Court Dismisses Veteran's FTCA Suit
-----------------------------------------------------------
The United States District Court for the District of Colorado
issued an Order granting Defendant's Motion to Dismiss in the case
captioned TIMOTHY PHILIP RODGERS, on behalf of himself and all
military veterans with historical and open claims older than 365
days at the VA, Plaintiff, v. UNITED STATES GOVERNMENT, JEFF
SESSIONS, U.S. Attorney General, and BOB TROYER, U.S. Attorney,
District of Colorado, Defendants. Civil Action No. 17-cv-02954-KLM.
(D. Colo.).
The Plaintiff alleges the following facts as the basis for his
claims. He is a veteran of the United States Army, having served
from June 30, 2004, until his honorable discharge on September 17,
2004, for failure to meet medical fitness requirements. After his
discharge, the Department of Veterans Affairs (VA) granted the
Plaintiff partial benefits in 2005 for severe pes planus, commonly
known as flat feet, which the VA determined had at least a partial
connection to his time in service. Throughout the following years,
the Plaintiff filed additional claims with the VA to obtain
benefits for various psychiatric conditions, which mostly have been
denied.
The Plaintiff asserts that he filed this lawsuit on behalf of
himself and all veterans with open claims older than one year. The
Plaintiff seeks the following relief: (1) an order requiring the VA
to amend its review process so that it must disprove a veteran's
claim for benefits (rather than the burden being on the veteran to
prove his claim) within one year of the claim being filed (2) $15
million in damages and (3) an order requiring the Department of
Justice to investigate an individual named Jose Cardenas (Cardenas)
for abuses of the color of law, although it is unclear precisely
who Mr. Cardenas is and how he is related to the other claims in
this litigation, if at all.
The Plaintiff's assertion that he brings this lawsuit not only on
his own behalf, but also on behalf of all military veterans with VA
claims that have been open for longer than one year.
Generally, a non-lawyer does not possess sufficient legal training
or skills to represent others in class litigation. A litigant may
bring his own claims to federal court without counsel, but not the
claims of others.
Accordingly, to the extent the Plaintiff is asserting class claims
in this action, the Motion is granted, and those claims are
dismissed without prejudice.
The Plaintiff states that technically speaking, the VA (Federal
Agency) violates TITLE 18, U.S.C., SECTION 242 treating "me and
everyone else as fraud's under the law and using tactics to force
people away from the help they need." It is unclear whether the
Plaintiff is attempting to assert a claim under this statute, but
to the extent that he is, 18 U.S.C. Section 242 is a criminal
statute which cannot form a basis of a claim in a civil lawsuit.
Accordingly, to the extent the Plaintiff is asserting a claim in
this action under 18 U.S.C. Section 242, the Motion is granted, and
that claim is dismissed with prejudice.
The Plaintiff asks the Court to order the Department of Justice to
investigate Jose Cardenas's abuses of the color of law. It is
unclear from the Complaint, and from Plaintiff's other filings, who
exactly Mr. Cardenas is or what he allegedly did to Plaintiff,
although, as best as can be gleaned from the docket, he has some
unspecified connection to law enforcement.
Regardless of the identity of Mr. Cardenas, the Court does not have
the discretion to direct the Department of Justice to investigate
anyone. This power lies solely within the executive branch, whose
broad discretion rests largely on the recognition that the decision
to prosecute is particularly ill-suited to judicial review.
Accordingly, the Motion granted to the extent the Plaintiff asks
the Court for an order requiring the Department of Justice to
investigate Mr. Cardenas, and this claim is dismissed with
prejudice.
The Plaintiff is also asserting a claim under the ADA. He notes
briefly that the VA is discriminating against him because of his
mental health condition of Paranoid Schizophrenia. He also marks a
box on the complaint form for retaliation but provides no detail
about that claim. Regardless, the United States government is not
subject to the provisions of the ADA, either as an employer for
purposes of Title I or as a public entity for purposes of Title II.
Thus, any claim against the United States under these provisions of
the ADA fails.
The Motion is granted with respect to the Plaintiff's ADA claim,
and this claim is dismissed with prejudice.
The Plaintiff briefly argues that the FTCA technically violates the
7th amendment against veterans because winning the lawsuit would
literally not yield anything, let alone more than $20 even though
the damages are worth so much more. Thus, Plaintiff states that he
is recommending review of the current legal functionality of the
FTCA legislation.
The Seventh Amendment states: In Suits at common law, where the
value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved. The precise basis of Plaintiff's
Seventh Amendment argument is unclear. However, the Court notes
that FTCA claims may not be tried to a jury. The United States, as
sovereign, is completely immune from suit unless it consents to be
sued. It may, therefore, condition its consent on dispensation of
a jury trial without offending the Seventh Amendment. In the
absence of a clearer legal foundation for this claim, the claim
must be dismissed.
The Motion is granted, and the Plaintiff's claim under the Seventh
Amendment is dismissed without prejudice.
The Plaintiff asserts that the VA's internal procedures unfairly
deny military veterans benefits by requiring them to establish they
are entitled to benefits rather than by presuming that the veterans
are entitled to benefits. More specifically, Plaintiff states that
he is an honest individual, deserving of what he is asking for. He
says that the VA has tried to intimidate him off his
service-connection claims with attempts to strip [his] pension. He
further says that VA personnel deliberately refuse to see what
qualifies him and insist he is undeserving.
The Court lacks jurisdiction to address any of these claims,
however. The Veterans' Judicial Review Act (VJRA) channels all
claims affecting veterans' benefits into a specialized adjudicatory
framework, and, with few inapplicable exceptions, precludes courts
outside that framework from reviewing these claims:
The Secretary of Veterans Affairs shall decide all questions of law
and fact necessary to a decision by the Secretary under a law that
affects the provision of benefits by the Secretary to veterans. The
decision of the Secretary as to any such question shall be final
and conclusive and may not be reviewed by any other official or by
any court, whether by an action in the nature of mandamus or
otherwise.
Accordingly, the Motion is granted with respect the Plaintiff's
claims under the FTCA and Fifth, Sixth, Eighth, and Tenth
Amendments for lack of subject matter jurisdiction, and these
claims are dismissed without prejudice.
A full-text copy of the District Court's December 31, 2018 Order is
available at https://tinyurl.com/ybj4l4cq from Leagle.com.
Timothy Philip Rodgers, Plaintiff, pro se.
United States Government, Jeff Sessions, U.S. Attorney General &
Bob Troyer, U.S. Attorney, District of Colorado, Defendants,
represented by Lauren Marie Dickey , U.S. Attorney's Office.
UNITED STATES: Hernandez Files Suit Under Tucker Act
----------------------------------------------------
A class action lawsuit has been filed against the USA. The case is
styled as Roberto Hernandez and Joseph Quintanar, individually and
on behalf of all others similarly situated, Plaintiffs v. USA,
Defendant, Case No. 1:19-cv-00063-PEC filed in the Court of Federal
Claims on January 15, 2019.
The docket of the case states the nature of suit as violation of
Civilian Pay filed pursuant to the Tucker Act.
The U.S. is a country of 50 states covering a vast swath of North
America, with Alaska in the northwest and Hawaii extending the
nation’s presence into the Pacific Ocean. Major Atlantic Coast
cities are New York, a global finance and culture center, and
capital Washington, DC. Midwestern metropolis Chicago is known for
influential architecture and on the west coast, Los Angeles'
Hollywood is famed for filmmaking.[BN]
The Plaintiff is represented by:
William Clifton Alexander, Esq.
Anderson 2x, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Tel: (361) 452-1279
Fax: (361) 452-1284
Email: clif@a2xlaw.com
UNITED STATES: I.P. Files Suit Under Tucker Act
------------------------------------------------
A class action lawsuit has been filed against USA. The case is
styled as I.P., A.C., S.W., D.W., P.V., M.R., R.C., K.W., B.G. and
R.H., individually and on behalf of all others similarly situated,
Plaintiffs v. USA, Defendant, Case No. 1:19-cv-00095-PEC filed in
the Court of Federal Claims on January 17, 2019.
The docket of the case states the nature of suit as violation of
Civilian pay filed pursuant to the Tucker Act.
The U.S. is a country of 50 states covering a vast swath of North
America, with Alaska in the northwest and Hawaii extending the
nation’s presence into the Pacific Ocean. Major Atlantic Coast
cities are New York, a global finance and culture center, and
capital Washington, DC. Midwestern metropolis Chicago is known for
influential architecture and on the west coast, Los Angeles'
Hollywood is famed for filmmaking.[BN]
The Plaintiffs are represented by:
Brian A. Bodansky, Esq.
Bell Law Group, PLLC.
100 Quentin Roosevelt Boulevard, Suite 208
Garden City, NY 11530
Tel: (516) 280-3008
Fax: (516) 706-4692
Email: bb@belllg.com
V CIVITANO: Caballero Seeks to Recover OT Pay Under FLSA
--------------------------------------------------------
ANGEL CABALLERO, and ROBERTO CABALLERO, on Behalf of Themselves and
All Others Similarly Situated v. V. CIVITANO LANDSCAPING, LTD., and
VINCENT CIVITANO, Case No. 7:19-cv-00292 (S.D.N.Y., January 10,
2018), seeks to recover overtime compensation, and liquidated
damages from the Defendants under the applicable provisions of the
Fair Labor Standards Act.
V. Civitano Landscaping was and is a domestic business corporation
whose principal place of business is located at 848 Nepperhan
Avenue, in Yonkers, New York. The Corporate Defendant is owned and
operated by Defendant Vincent Civitano.
The Defendants own and operate a landscaping business in
Westchester County, New York.[BN]
The Plaintiffs are represented by:
Amit Kumar, Esq.
LAW OFFICES OF WILLIAM CAFARO
108 West 39th Street, Suite 602
New York, NY 10018
Telephone: (212)583-7400
E-mail: AKumar@CafaroEsq.com
VIBRANTCARE REHAB: Faces Williams Suit in Cal. Superior Court
-------------------------------------------------------------
A class action lawsuit has been filed against Vibrantcare
Rehabilitation Inc. The case is styled as Colleen Williams,
individually and on behalf of other members of the general public
similarly situated, Plaintiff v. Vibrantcare Rehabilitation Inc and
Does 1-100, Defendants, Case No. 34-2019-00248851-CU-OE-GDS (Cal.
Super. Ct., Sacramento Cty., January 17, 2019).
VibrantCare offers a wide variety of services including physical
therapy and occupational therapy to patients.[BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS for JUSTICE, PC
410 Arden Ave Ste 203
Glendale, CA 91203
Tel: (818) 265-1020
Fax: (818) 265-1021
Email: edwin@lfjpc.com
WAITR HOLDINGS: Halley Sues Over Unreimbursed Expenses
------------------------------------------------------
Jualeia Halley, individually and on behalf of all others similarly
situated, Plaintiff, v. Waitr Incorporated and/or Waitr Holdings,
Inc. f/k/a Landcadia Holdings, Inc., Defendant, Case No.
4:19-cv-00188 (S.D. Tex., January 17, 2019) is an action on behalf
of all current and former non-exempt delivery drivers who worked
for Defendants at any time from three years preceding the filing of
this Original Complaint through the final disposition of this
matter, to recover compensation, liquidated damages, and attorneys'
fees and costs pursuant to the provisions of the Fair Labor
Standards Act of 1938.
The Defendant Waitr failed to reimburse its delivery drivers for
the reasonable expenses of the business use of their personal
vehicles in performing deliveries for Waitr, such that Plaintiff
and the Putative Class Members' unreimbursed expenses caused their
wages to fall below the federal minimum wage during some or all
workweeks.
Plaintiff and the Putative Class Members, therefore, seek to
recover all unpaid minimum wage and other damages owed under the
FLSA. Plaintiff Halley also prays that all similarly situated
workers be notified of the pendency of this action to apprise them
of their rights and provide them an opportunity to opt-in to this
lawsuit, says the complaint.
Plaintiff Jualeia Halley was employed by Waitr during the relevant
time period.
Waitr Holdings, Inc. f/k/a Landcadia Holdings, Inc. is a foreign
for profit Corporation, licensed to and doing business in the State
of Texas, and an employer as defined by the FLSA.
Waitr Incorporated was a foreign for-profit corporation and an
employer as defined by by the FLSA.[BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Lauren E. Braddy, Esq.
Alan Clifton Gordon, Esq.
Carter T. Hastings, Esq.
George Schimmel, 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
lauren@a2xlaw.com
cgordon@a2xlaw.com
carter@a2xlaw.com
geordie@a2xlaw.com
WALT DISNEY: Bid to Certify Class in Valenzuela Suit Granted
------------------------------------------------------------
The Honorable James V. Selna grants the Plaintiff's Motion to
Certify Class in the lawsuit styled JOSE VALENZUELA, ET AL. v. WALT
DISNEY PARKS AND RESORTS U.S., INC., ET AL., Case No.
8:17-cv-01988-JVS-DFM (C.D. Cal.).[CC]
The Plaintiffs are represented by:
Aparajit Bhowmik, Esq.
BLUMENTHAL NORDREHAUG AND BHOWMIK LLP
2255 Calle Clara
La Jolla, CA 92037-3107
Telephone: (818) 451-9265
E-mail: aj@bamlawlj.com
The Defendants are represented by:
Stephen Berry, Esq.
PAUL HASTINGS LLP
695 Town Center Dr., Floor 17
Costa Mesa, CA 92626-1924
Telephone: (714) 668-6200
Facsimile: (714) 668-6346
E-mail: stephenberry@paulhastings.com
WEST REVENUE: Court OKs Final Approval of $335K Gerlach Settlement
------------------------------------------------------------------
The United States District Court for the Eastern District of
Wisconsin, Green Bay Division, issued an Order granting Final
Approval of Settlement Agreement in the case captioned TRACY
GERLACH, on behalf of herself and all others similarly situated,
Plaintiff, v. WEST REVENUE GENERATION SERVICES, LLC and WEST
CORPORATION, Defendants. Case No. 1:18-cv-00170 WCG. (E.D. Wis.).
The Court finds and determines that (a) the Settlement Agreement
reached by the parties constitutes a fair, reasonable, and adequate
resolution of a bona fide dispute between Defendants and all
affected current and former employees of Defendants on whose behalf
Plaintiff brought this matter (b) 4,222 class members will be bound
by the Settlement Agreement, including 61 opt-ins from Texas, and
will receive payments totaling $335,118.66; (c) 46 class members
from Wisconsin have opted out of the Settlement Agreement; and (d)
no class members have objected to the Settlement Agreement.
The Settlement Agreement is finally approved and all terms and
provisions of the Settlement Agreement should be and hereby are
ordered to be consummated. The Court specifically finds that the
Settlement Agreement is rationally related to the strength of
Plaintiff's and the Settling Associates' claims given the defenses,
risks, expense, complexity, and duration of further litigation. The
Court also finds that the Settlement Agreement is the result of
arm-length negotiations between experienced counsel representing
the interests of the Settlement Classes and Defendants, after
adequate factual and legal investigation. The Court approves the
creation of a Qualified Settlement Fund for the administration of
the Settlement Fund.
The Court finds that the parties have entered into the Settlement
Agreement solely for the purpose of compromising and settling
disputed claims and that Defendants in no way admit any violation
of law or any liability whatsoever to the Plaintiff or Class
Members. This Order is not a finding of the validity of any claims
in the lawsuit or of any wrongdoing by Defendants. This Order, the
Settlement Agreement and exhibits thereto, the Preliminary Approval
Order, Notice of Settlement Forms, and any other papers and records
on file in this lawsuit may be filed in this Court or in any other
litigation as evidence of the settlement by Defendants to support a
defense of res judicata, collateral estoppel, release, or other
theory of claim or issue preclusion or similar defense as to the
Released Claims.
As set forth in Class Counsel's supporting brief and declarations,
the requested award of attorneys' fees and costs is consistent with
the rate of other attorneys in the community and approved rates in
similar matters before the Court. The Court finds that the attorney
fee amount and the costs requested to be reasonable and fair
compensation for counsel given the risk and extent of work in
representing the class and the result they attained. The Court
further finds that payment of the requested incentive award to
Plaintiff Tracy Gerlach is appropriate.
A full-text copy of the District Court's January 3, 2019 Order is
available at https://tinyurl.com/ybcumk3v from Leagle.com.
Tracy Gerlach, Plaintiff, represented by James A. Walcheske --
jwalcheske@walcheskeluzi.com -- Walcheske & Luzi LLC, David M.
Potteiger -- dpotteiger@walcheskeluzi.com -- Walcheske & Luzi LLC &
Scott S. Luzi -- sluzi@walcheskeluzi.com -- Walcheske & Luzi LLC.
West Revenue Generation Services, LLC & West Corporation,
Defendants, represented by George Burnett, Law Firm of Conway
Olejniczak & Jerry SC, Julie A. Springer -- jspringer@wshllp.com --
Weisbart Springer Hayes LLP, Kurt A. Goehre, Conway Olejniczak &
Jerry SC & Matthew C. Wood -- mwood@wshllp.com -- Weisbart Springer
Hayes LLP.
WONDERFUL CITRUS: Court Denies Peralta Class Certification
----------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order denying Plaintiffs' Motion for Class
Certification in the case captioned MARCELINA PERALTA and RIGOBERTO
MONJARAZ, individually and on behalf of others similarly situated,
Plaintiffs, v. WONDERFUL CITRUS PACKING LLC, Defendant. No.
1:15-cv-00263-TLN-JLT. (E.D. Cal.).
The Plaintiffs are seasonal field workers who harvested citrus
grown at various locations in Kern County for the Defendant between
2013 and the present. The Defendant employs between 80 and 110
farm labor contractors to supply field workers, such as the
Plaintiffs. The Plaintiffs allege they were paid on a piece rate
basis, which did not include compensation for non-piece work
activities, such as standby time, rest time, travel time, or
reporting time.
The Plaintiffs filed a Class Action Complaint alleging failure to
pay minimum wages in violation of California Labor Code Section
1197, unfair competition in violation of California Business and
Professions Code Section 17200, failure to provide accurate wage
statements in violation of California Labor Code Section 226, and
failure to pay all wages upon termination in violation of
California Labor Code Sections 201 and 202, and failure to comply
with the Migrant and Seasonal Agricultural Workers Protection Act
(AWPA).
Numerosity
Here, the Plaintiffs allege there are at least 28,889 putative
class members. The parties do not dispute numerosity, and the Court
finds the numerosity requirement is met because the putative class
is so numerous that joinder of all its members is impracticable.
Commonality
The Plaintiffs argue that all putative class members' claims hinge
on two common contentions: (1) the Defendant was a joint employer,
and (2) class members were not paid all minimum wages owed to them
for rest periods and other nonproductive time. Moreover, the
Plaintiffs argue that the Defendant's safe harbor payments made
pursuant to California Labor Section 226.2(b) support those
contentions.
The Defendant responds that its safe harbor payments are
insufficient to demonstrate a policy or practice that affected the
entire putative class. The Defendant argues the safe harbor
payments do not support the contention that the Defendant failed to
pay the putative class members all minimum wages owed to them
because the Defendant made the payments based on an arbitrary
formula of 4% gross piece rate wages earned between July 1, 2012
through December 31, 2015, under Section 226.2(b)(1)(B).
It is unclear what, if any, evidentiary value the Defendant's safe
harbor payment offers to determine whether there was a common
pattern and practice that could affect the class as a whole.
Section 226.2 mandates that employers paying any piece-rate
compensation must also pay an hourly rate of at least the
applicable minimum wage for all hours worked, including
compensation for rest and nonproductive time.
The Plaintiffs cite a single Northern District of Illinois case to
support their argument that safe harbor payments demonstrate
commonality because it is axiomatic, under federal law, an
affirmative defense necessarily admits to allegation of the
complaint.
Section 226.2 does not state that an employer admits liability by
making safe harbor payments. Rather, part of the purpose of the
safe harbor provision is to avoid questions of liability the
Plaintiffs' lack of evidence beyond the safe harbor payments
further weakens their argument for commonality. The Defendant
employs between 80 and 110 Farm Labor Contractors (FLCs) who supply
and operate crews of field workers. Both named Plaintiffs worked
only on a single crew operated by FLC Camacho. Both named
Plaintiffs state they believe Defendant failed to pay all minimum
wages owed to workers on other crews. In response, Defendant
provides declarations from putative class members on various other
crews that contradict the Plaintiffs' statements.
The Plaintiffs bear the burden of demonstrating that Rule 23(a)
requirements have been met. Rule 23(a)'s commonality requirement
depends on the capacity of a classwide proceeding to generate
common answers. Here, Plaintiffs have not provided sufficient
evidence to support their theory that Defendant had a class-wide
pattern or practice of failing to pay all minimum wages owed.
Indeed, the weight of the proffered evidence contradicts the
existence of such a practice, as Defendant provides considerable
evidence as to differences that exist among putative class members.
Accordingly, the Court finds Plaintiffs have not satisfied Rule
23(a)'s commonality requirement.
Typicality
The Plaintiffs contend that typicality is satisfied because the
Plaintiffs allege the same principal injuries suffered by the rest
of the class: failure to receive all minimum wages owed.
The Defendant argues that the Plaintiffs' claims are not typical of
the putative class because (1) the Plaintiffs themselves did not
take rest breaks, (2) the Plaintiffs accepted safe harbor payments
from the Defendant, and (3) the Plaintiffs' claims relating to
nonpayment for non-productive time directly contradicts allegations
from other putative class members who were paid for non-productive
time.
The Plaintiffs allege that putative class members did not receive
minimum wages for various compensable non-piece work activities,
such as 1) waiting before beginning to work in the field 2) waiting
before being told that there is no work for the day 3) walking or
traveling from one field to another during a workday and 4) taking
rest periods. However, Plaintiffs do not provide any evidence that
other members have the same or similar injury. Defendant, on the
other hand, provides declarations from putative class members that
directly refute Plaintiffs' claims.
Based on the declarations provided by Defendant and the lack of
evidence from Plaintiffs, the failure to receive minimum wages for
the aforementioned non-piece work activities appears to be unique
to the named plaintiffs. Accordingly, the Court finds Plaintiffs
have not satisfied Rule 23(a)'s typicality requirement.
Adequate Representatives
The Defendant argues that Plaintiffs are not adequate class
representatives because of their lack of involvement and because
they have not supervised their counsel in any meaningful way.
The Plaintiffs argue adequacy is satisfied because they have met
both requirements (1) there are no conflicts of interest between
Plaintiffs and other class members, and (2) Plaintiffs are willing
to prosecute the action vigorously on behalf of the class.
Plaintiffs state they are willing to participate in the litigation
and understand the nature of their claims. Plaintiffs have met the
Rule 23(a) adequacy requirement.
The Plaintiffs have not met two requirements under Rule 23(a),
commonality and typicality.
Accordingly, the Court find the Plaintiffs have not satisfied Rule
23(a).
Rule 23(b)
A proposed class action must also fit within at least one of the
three categories of class actions laid out in Rule 23(b). Here,
Plaintiff seeks certification solely under Rule 23(b)(3). Rule
23(b)(3) provides the court may certify a class if the court finds
that the questions of law and fact common to class members
predominate over any questions affecting only individual members,
and that a class action is superior to other available methods for
fairly and efficiently adjudicating the controversy. These
requirements are commonly known as predominance and superiority.
Here, the Court has determined the Plaintiffs have not met their
burden to satisfy the Rule 23(a) requirements, including
commonality. The predominance requirement is even more stringent
than the commonality requirement, and the analysis under Rule
23(b)(3) presumes that the existence of common issues of fact or
law have been established pursuant to Rule 23(a)(2). Because
Plaintiffs failed to demonstrate commonality under Rule 23(a), they
cannot demonstrate that common questions predominate under Rule
23(b)(3)'s more stringent standard.
The Plaintiffs have not met one of Rule 23(b)(3)'s two
requirements, predominance, so the Court will not analyze the
second requirement, superiority. Accordingly, the Court find
Plaintiffs have not satisfied Rule 23(b)(3).
A full-text copy of the District Court's January 3, 2019 Order is
available at https://tinyurl.com/y746z2l7 from Leagle.com.
Marcelina Peralta, individually and on behalf of others similarly
situated & Rigoberto Monjaraz, individually and on behalf of others
similarly situated, Plaintiffs, represented by Gregory N. Karasik
-- greg@karasiklawfirm.com -- Karasik Law Firm & Santos Gomez, Law
Offices of Santos Gomez.
Paramount Citrus Cooperative, Defendant, represented by Azadeh
Allayee -- aa@allayeelawfirm.com -- Roll Law Group P.C., Brooke S.
Hammond, Roll Law Group P.C., James Paul Pecht, Roll Law Group P.C.
& Kristina Maria Diaz, Roll Law Group, PC.
Wonderful Citrus Packing LLC, formerly known as, Defendant,
represented by Azadeh Allayee, Roll Law Group P.C..
WONDERFUL CITRUS: Jordan Parties Need to Confer re Discovery Issue
------------------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order requiring Parties to Meet and Confer
regarding Discovery Dispute in the case captioned JAMES K. JORDAN,
Plaintiff, v. WONDERFUL CITRUS PACKING LLC, Defendant. Case No.
1:18-cv-00401-AWI-SAB. (E.D. Cal.).
James K. Jordan filed this action against Wonderful Citrus Packing
LLC alleging violation of the Age Discrimination in Employment Act
(ADEA). The Defendants filed a motion to dismiss that was granted
and the Plaintiff's state law infliction of emotional distress
claims were dismissed. The Defendant filed an answer and a
counterclaim alleging state law causes of action. the Plaintiff's
motion to dismiss the counterclaims was denied.
The Plaintiff filed a motion to allow him to take additional
depositions.
Pursuant to the Local Rules of the Eastern District of California,
the parties are required to meet and confer prior to bringing a
motion to exceed the discovery limitations.
Here, the Court finds that the parties have not sufficiently met
the requirements of the Local Rule. Courts also find that allowing
additional depositions without analyzing the need for the first 10
depositions would reward a party for taking superfluous depositions
early in the course of discovery.
Here, the Plaintiff is seeking twenty-five depositions and the
Defendant has requested that the Plaintiff identify the first ten
deponents in order to determine whether the additional depositions
would be unreasonably cumulative or duplicative. The Plaintiff has
refused to identify the first ten depositions; and therefore, the
parties are a stymy on this issue.
The Court requires the Plaintiff to identify the first ten
deponents and for the parties to meet and confer regarding the
additional fifteen depositions. The Court is not inclined to follow
the exhaustion rule requiring the Plaintiff to take the first ten
depositions and then require a second motion to request additional
depositions to be filed given that the discovery deadline in this
action is quickly approaching.
A full-text copy of the District Court's January 3, 2019 Order is
available at https://tinyurl.com/yb53nsvs from Leagle.com.
James K. Jordan, Plaintiff, represented by Heather Sharon Cohen,
Marderosian, Cercone & Cohen & Michael G. Marderosian, Marderosian,
Cercone & Cohen.
Wonderful Citrus Packing LLC, a California limited liability
company, Defendant, represented by Michael M. Vasseghi --
mvasseghi@roll.com -- Roll Law Group & James Paul Pecht, Roll Law
Group P.C.
Wonderful Citrus Packing LLC, a California limited liability
company, Counter Claimant, represented by Michael M. Vasseghi, Roll
Law Group & James Paul Pecht, Roll Law Group P.C.
ZIEN SERVICE: Court Grants 2nd Extension of Dispositive Deadline
----------------------------------------------------------------
The United States District Court for the Eastern District of
Wisconsin issued an Order granting Plaintiffs' second motion for an
extension of the dispositive motion deadline in the case captioned
WISCONSIN SHEET METAL WORKERS HEALTH AND BENEFIT FUND, MILWAUKEE
AREA SHEET METAL JOURNEYMAN AND APPRENTICESHIP TRAINING FUND and
MICHAEL MOONEY, Plaintiffs, v. ZIEN SERVICE INC., Defendant. Case
No. 18-CV-272-JPS. (E.D. Wis.)
The Plaintiffs filed a motion for partial summary judgment as to
various liability issues.
The Plaintiffs are employee benefit plans and their trustee. They
assert that the Defendant has failed to remit contributions to them
for its employees' benefits in violation of the Employee Retirement
Income Security Act of 1974 (ERISA).
The Plaintiffs present two claims, each under a different
subsection of ERISA, but both allege identical unlawful conduct:
failure to pay contributions in breach of the CBA.
Defendant Is Bound By The 2015-2018 CBA
ERISA requires employers of union workers to, inter alia, make
contributions to union benefit plans in accordance with the terms
of the CBA between the employer and the union. Thus, Plaintiffs
must initially establish that Defendant is bound to a CBA. Here,
the relevant agreement is the 2015-2018 CBA which spans the period
of the Collective Employees' work. Plaintiffs can make this showing
in two complementary ways. First, Plaintiffs can show that
Defendant expressed an unequivocal intention to be bound" by the
actions of the Contractors' Association in negotiating and agreeing
to the 2015-2018 CBA. Second, Plaintiffs can establish that
Defendant has directly agreed to abide by the 2015-2018 CBA by its
conduct manifesting an intention to abide and be bound by the terms
of an agreement.
As to the first theory, the Plaintiffs note that the Defendant has
never withdrawn from the Contractors' Association. As to the
second, the Defendant has acted in accordance with the CBA by
reporting hours worked to the Plaintiffs and paying the Plaintiffs
for contributions and dues owed. The Defendant responds that its
manifestation of intent to be bound by the CBA is less than
unequivocal. Thus, there is nothing for a jury to decide, and the
Plaintiffs are entitled to a finding that the Defendant is bound by
the 2015-2018 CBA.
The CBA's Definition of Covered Work Is Not Unenforceably Ambiguous
or Vague
The Plaintiffs contend that because Bloomfield literally touched
pieces of metal during his work for the Defendant, he performed
covered work. The Defendant contends that when approached this way,
the definition of covered work is both vague and unreasonably
broad. It believes that covered work was intended to be that which
is done by a skilled tradesman.
The Defendant's argument, while certainly having some practical
appeal, must be rejected for two reasons. First, the Defendant has
not grounded its position in legal analysis. Interpretation of
contracts can be made as a matter of law if the contract is
unambiguous. The Defendant does not meaningfully grapple with these
holdings or analogize the CBA in this case to any other which has
been found ambiguous, vague, or both. The Court will not do the
Defendant's legal research on its behalf. The plain language of the
CBA's is neither ambiguous nor vague, but instead extremely broad.
The second failing of the Defendant's argument is evidentiary, also
in two respects. Courts are only permitted to consider extrinsic
evidence when a contract's language is ambiguous. The Defendant has
not offered evidence on certain relevant points, such as to support
its belief that the CBA was only intended to cover skilled trade
work. Even the evidence it did offer such as that of the Cargill
representative discussing Wyhoski's job cannot be considered to
vary the plain and unambiguous language of the agreement.
The Subject Employees Performed Covered Work
The breadth of the CBA does not by itself establish Plaintiffs'
entitlement to contributions for the Subject Employees. The
Plaintiffs must make a factual showing that each employee was
indeed performing covered work. Though the nature of each
employee's work is disputed, even viewing the evidence most
favorably to the Defendant, the Subject Employees were performing
covered work.
Bloomfield handled metalwork by delivering it jobsites and carrying
it to the work areas. Wyhoski lubricated plastic bearings, which
constitutes servicing a material used in lieu of metal. Rombca also
handled metalwork and in fact fabricated spiral ductwork. Though
the Subject Employees' job duties may have involved many unskilled
tasks, or may have changed when they joined the union, this has no
bearing on whether their tasks during the months in question should
be considered covered work. Plaintiffs are entitled to a finding
that the Subject Employees performed covered work.
The determination that the Subject Employees performed covered work
is not the end of the Court's analysis. The next essential question
is the extent of Defendant's liability for contributions, when the
Subject Employees clearly performed many tasks beyond even the
CBA's broad definition of covered work. THe Plaintiffs address this
issue with a discussion of how the Subject Employees should be
classified under the CBA. The CBA provides for four possible
classifications of workers who perform covered work: journeymen,
apprentices, trainees, and warehousemen. The Plaintiffs argue that
in light of the work they performed, Bloomfield and Wyhoski should
be classified as journeymen, and Rombca as a warehousemen.
According to the Plaintiffs, both classifications entail
contributions for every hour each employee worked, regardless of
whether they were actually doing covered work at any particular
time.
A full-text copy of the District Court's January 3, 2019 Order is
available at https://tinyurl.com/y8hwfoyw from Leagle.com.
Wisconsin Sheet Metal Workers Health and Benefit Fund, Milwaukee
Area Sheet Metal Journeymen and Apprenticeship Training Fund &
Michael Mooney, Plaintiffs, represented by Yingtao Ho, The Previant
Law Firm SC.
Zien Service Inc, Defendant, represented by Matthew J. Flanary,
Buelow Vetter Buikema Olson & Vliet LLC & Suzanne M. Glisch, Buelow
Vetter Buikema Olson & Vliet LLC.
ZOGSPORTS: Ernst Moves to Certify California and FLSA Classes
-------------------------------------------------------------
The Plaintiffs in the lawsuit styled KEITH ERNST, ARTHUR OGANESYAN,
and ALAN NAH, individually and on behalf of all others similarly
situated v. ZOGSPORTS, an unknown business entity; and DOES 1- 50,
Inclusive, Case No. 2:18-cv-09043-RGK-MRW (C.D. Cal.), ask the
Court to:
* certify the case as a class action for the California Class,
which consists of:
All persons who worked as unpaid volunteers during any
football game organized or conducted by Defendant, in
California, at any time from September 20, 2014 through and
including the date judgment is rendered in this matter; and
* conditionally certify the case as a collective action
pursuant to Fair Labor Standards Act on behalf of the FLSA
Class, which consists of:
All persons who worked as unpaid volunteers during any
football game organized or conducted by Defendant, in the
United States, at any time from September 20, 2015 through
and including the date judgment is rendered in this matter.
The Plaintiffs also ask the Court to:
1. appoint the named Plaintiffs Keith Ernst, Arthur Oganesyan,
and Alan Nah as class representatives;
2. appoint the law firm of Labor Law PC as class counsel for
the proposed class;
3. order and appoint Plaintiffs Keith Ernst and Arthur
Oganesyan as representative of the State of California
and/or the California Labor Commission and/or the
California and Labor Workforce Development Agency ("LWDA"),
on behalf of the general public, to bring this action as a
"representative action" as required by the Plaintiffs' full
and exhaustive efforts to comply with the Notice and Cure
provisions of the Private Attorneys General Act;
4. order the Defendant to produce a class list to the
Plaintiffs' counsel within 14 days of the date this Court's
Order pursuant to FRCP 23(b)(3);
5. order the parties to meet and confer regarding the class
notices and submit final agreed upon notices to the Court
within 14 days of the date the Court's order pursuant to
FRCP 23(b)(3);
6. authorize the Plaintiffs to send notices to the FLSA Class
pursuant to 28 USC Section 216(b) to all potential opt-in
plaintiffs, that they may join this action and assert
claims under the FLSA; and
7. authorize a Third-Party Administrator to use e-mail service
to all class members, with a postcard notice being issued
to those individuals whose e-mail address is not valid.
The Court will commence a hearing on February 11, 2019, at 9:00
a.m., to consider the Motion.[CC]
The Plaintiffs are represented by:
Danny Yadidsion, Esq.
LABOR LAW PC
100 Wilshire Blvd., Suite 700
Santa Monica, CA 90401
Telephone: (310) 494-6082
Facsimile: (877) 775-2267
E-mail: Danny@LaborLawPC.com
ZWANGER & PESIRI: Sali Files FDCPA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Zwanger & Pesiri
Radiology Group, LLP. The case is styled as Nilgun Sali,
individually and on behalf of all others similarly situated,
Plaintiff v. Zwanger & Pesiri Radiology Group, LLP, Vanvorst Law
Firm, PLLC and John Does 1-50, Defendants, Case No.
2:19-cv-00275-JFB-ARL (E.D. N.Y., January 15, 2019).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Zwanger-Pesiri Radiology provides radiologic services to physicians
and patients in the Long Island community in New York.[BN]
The Plaintiff is represented by:
Abraham Kleinman, Esq.
Kleinman, LLC
626 RXR Plaza
Uniondale, NY 11556-0626
Tel: (516) 522-2621
Fax: (888) 522-1692
Email: akleinman@kleinmanllc.com
Asbestos Litigation
ASBESTOS UPDATE: 2 Companies Fined for Asbestos Exposure
--------------------------------------------------------
Health and Safety Executive reported that two construction
companies have been fined after sub-contractors working under their
control were exposed to asbestos fibres during school refurbishment
work.
Derby Crown Court heard that on 1 August 2016, Oakwood Junior
school in Derby was undergoing refurbishment work during the school
holidays. During the work, two subcontractors removing suspended
ceiling tiles from rooms in the school entered a storage room which
had a suspended ceiling made from asbestos containing ceiling
tiles. They started to remove the tiles, unaware that they
contained asbestos, potentially exposing themselves to harmful
asbestos fibres. A licensed asbestos removal company working on
site alerted management to the situation and action was taken to
stop the work and deal with the contamination.
An investigation by the Health and Safety Executive (HSE) found
that Ashe Construction Limited, the principal contractor for the
project, failed to effectively plan, manage and monitor the work to
prevent the accidental removal of the asbestos containing tiles.
Ashe Construction Limited failed to effectively communicate
information about the asbestos, leaving the storage room open
without barriers or signage warning of asbestos. The work was not
then suitably managed or monitored to ensure that nobody came into
contact with the asbestos.
The HSE investigation also found that Cladceil Limited, a
contractor appointed by Ashe Construction Ltd to carry out the
suspended ceiling removal work, also failed to effectively plan,
manage and monitor the work. The company appointed a sub-contractor
to remove the suspended ceilings on its behalf but provided only a
generic risk assessment and method statement which failed to
identify important information, including the asbestos risk.
Ashe Construction Limited, Ashe House, Cooks Way, Hitchin,
Herefordshire, SG4 0JE, pleaded guilty to breaching Regulation
13(1) of the Construction (Design and Management) Regulations 2015
and Section 3(1) of the Health and Safety at Work Act 1974. It was
fined GBP100,000 and ordered to pay costs of GBP9,759.76.
Cladceil Limited, 2 Lace Market Square, Nottingham, NG11 1PB,
pleaded guilty to breaching Regulation 15(2) of the Construction
(Design and Management) Regulations 2015. It was fined GBP12,000
and ordered to pay costs of GBP47,184.48.
Speaking after the hearing, HSE inspector Andrew Bowker said: "The
exposure to asbestos could so easily have been avoided if the two
companies involved had put sufficient effort into planning,
managing and monitoring the ceiling tile removal work. HSE will not
hesitate to take appropriate enforcement action against those that
fall below the required standards."
ASBESTOS UPDATE: Bid to Dismiss, Remand Youse's Suit Denied
-----------------------------------------------------------
The Hon. Michael M. Baylson of the U.S. District Court for the
Eastern District of Pennsylvania has denied (i) Plaintiffs' Motion
to Remand, and (ii) Defendant Imerys' Motion to Dismiss filed in
the case styled Youse & Youse v. Johnson & Johnson, et al., Civil
Action No. 18-3578, (E.D. Pa.).
Carries Youse & Mark Youse, H/W, Plaintiffs, represented by Jason
Michael Hodrinsky -- jhodrinsky@gorijulianlaw.com -- Gori Julian &
Assoc., PC.
Johnson & Johnson, Defendant, represented by Thomas P. Hanna --
thanna@kjmsh.com -- Kelley Jasons McGowan & Spinelli LLP.
Imerys Talc America, Inc., and as Successor-in-Interest to Luzenac
Group and Cyprus Minerals, Defendant, represented by John C.
McMeekin -- jmcmeekin@rawle.com -- Rawle & Henderson.
Wal-Mart, Defendant, represented by Patrick J. McDonnell, McDonnell
& Associates & Jill Heather Fertel , McDonnell & Associates PC.
Johnson & Johnson, Cross Claimant, represented by Thomas P. Hanna
-- thanna@kjmsh.com -- Kelley Jasons McGowan & Spinelli LLP.
Johnson & Johnson, Cross Defendant, represented by Thomas P. Hanna
-- thanna@kjmsh.com -- Kelley Jasons McGowan & Spinelli LLP.
Imerys Talc America, Inc., and as Successor-in-Interest to Luzenac
Group and Cyprus Minerals, Cross Defendant, represented by John C.
McMeekin -- jmcmeekin@rawle.com -- Rawle & Henderson.
Wal-Mart, Cross Defendant, represented by Patrick J. McDonnell,
McDonnell & Associates & Jill Heather Fertel , McDonnell &
Associates PC.
Wal-Mart, Cross Claimant, represented by Patrick J. McDonnell ,
McDonnell & Associates & Jill Heather Fertel , McDonnell &
Associates PC.
ASBESTOS UPDATE: Broyles Couple Sue Over Wife's Lung Cancer
-----------------------------------------------------------
Madison County Record reported that a Wisconsin husband and wife is
suing more than 40 users of asbestos products, alleging failure to
warn and negligence in the wife developing lung cancer.
Mary Broyles and Brent Broyles of Wautoma, Wisconsin, filed a
complaint Nov. 29 in St. Clair County Circuit Court against more
than 40 defendants, alleging failure to exercise due care and
caution for the safety of others.
According to the complaint, at various times during Mary Broyles'
working life that started in 1969, she was exposed to and inhaled
or ingested asbestos fibers emanating from certain products
manufactured, sold, distributed or installed by the defendants.
The suit says on May 15, 2018, Broyles first became aware that she
had developed lung cancer, an asbestos-induced disease, and that
the disease was wrongfully caused. Brent Broyles says he suffered
the loss of consortium and the services of his wife.
The plaintiffs allege the defendants intentionally included
asbestos fibers in their products when they knew the fibers had
toxic, poisonous and highly deleterious effects on human health and
failed to provide adequate warnings and instructions concerning the
dangers of working with or around products containing these
fibers.
The Broyleses seek trial by jury, compensatory and punitive damages
of more than $50,000 and all further appropriate relief. They are
represented by attonrey Randy L. Gori of Gori, Julian & Associates
PC in Edwardsville.
St. Clair County Circuit Court Case number 18-L-764
ASBESTOS UPDATE: Cigarette Maker Faces Prokocimer Asbestos Lawsuit
------------------------------------------------------------------
Mesothelioma.net Blog reported that though the most common way that
malignant mesothelioma victims have been exposed to asbestos is
generally occupational exposure, there are many other ways. One
that no longer exists but which provides an excellent example of a
corporation ignoring its own knowledge of asbestos’ dangers
involves the manufacturer of Kent cigarettes, which were
manufactured using filters containing crocidolite asbestos. The
cigarette company’s advertising actually promoted the use of
asbestos as providing greater safety for smokers, and this has been
the subject of numerous lawsuits, including one recently filed in
the Supreme Court of New York County. Though R.J. Reynolds Tobacco
Company and Hollingsworth & Vose (the company that provided the
asbestos filters) have argued that they should not be held
responsible for any illnesses caused by asbestos in their products,
those who are pursuing legal claims against them have submitted
significant evidence proving that they did in fact know that
asbestos caused serious illnesses.
The recent case was filed by Lois Prokocimer, who was diagnosed
with pleural mesothelioma. In her lawsuit she claims that she
developed the disease as a result of smoking Kent cigarettes in the
1950s, pointing out that from March 1952 until May of 1956 or 1957
the cigarettes were made using asbestos filters. The companies both
moved for summary judgment against her claims, stating that there
was no general recognition of asbestos’ dangers prior to the
1960s, but the woman’s mesothelioma attorneys were able to submit
161 exhibits showing that the defendants either knew or should have
known that asbestos was a harmful carcinogen, including warnings
from experts as early as 1952. Despite this knowledge, the company
continued to advertise that the asbestos Micronite filter on their
cigarette made it safe, and that it offered the greatest health
protection available.
In determining that summary judgment was not appropriate, Judge
Manuel J. Mendez also noted that it was appropriate for Ms.
Prokocimer to seek punitive damages in the case, saying, "Plaintiff
has presented sufficient evidence from which a jury can conclude
that defendants had knowledge, from at least 1952, of the hazards
of exposure to asbestos from smoking their asbestos-containing
Micronite filter cigarette, that defendants knew that there was
asbestos in the smoke from their cigarette and that this asbestos
posed a health risk to the end user. A jury presented with these
facts could very well find defendants to be wanton and reckless
entitling the plaintiff to an award for punitive damages."
Mesothelioma is a risk to anybody who has been exposed to asbestos,
no matter how the exposure took place. If you have been diagnosed
with this terrible disease and you need information about the
resources and rights available to you, contact the Patient
Advocates at Mesothelioma.net at 1-800-692-8608.
ASBESTOS UPDATE: Clerk to File Supplemental Record in Andrews Case
------------------------------------------------------------------
The Court of Appeals of Texas has directed the Harris County
District Clerk to file a supplemental clerk's record on or before
due, containing the following listed items, in the case styled
Robin Blaine Andrews, Individually and as Personal Representative
of the Heirs and Estate of Garland Dale Pepper, Deceased, and
Garland Pepper, Jr., Susan Andrews, Kimberly Brown and Carolyn
Walker v. ABB, Inc., Et Al, Appellants, v. John Crane, Inc,
Appellee, No. 14-18-00573-CV, (Tex. App.).
The clerk's record was filed July 31, 2018. Appellee filed a motion
to supplement the clerk's record with relevant items were omitted
from the clerk's record. The record does not contain:
(a) August 18, 2015 order granting defendant's motion to
apply maritime law;
(b) Defendant's first amended special exceptions filed
January 12, 2017;
(c) Defendant's amended motion to strike plaintiff's claim
for past medical expenses and exhibit thereto filed January 12,
2017;
(d) Defendant's motion to adopt defendant's motions to
exclude and or strike general causation testimony filed in regard
to asbestos litigation filed January 10, 2017;
(e) Plaintiff's amended response in opposition to John Crane
Inc.'s motion for summary judgment and exhibits thereto 48, 49, 50
and 66 filed January 20, 2017;
(f) Plaintiff's original petition filed December 5, 2013;
(g) Order setting trial date filed January 9, 2015;
(h) Notice of hearing on motion to apply maritime law filed
August 14, 2015;
(i) Plaintiff's brief regarding damages available under
maritime law filed August 28, 2015;
(j) Order granting motion to stay proceedings filed October
23, 2015;
(k) Amended order setting trial date filed May 27, 2016; and
(l) Order granting John Crane Inc.'s motion for continuance
filed December 9, 2016.
If the omitted item is not part of the case file, the Court
directed the district clerk to file a supplemental clerk's record
containing a certified statement that the omitted item is not a
part of the case file.
A copy of the Order, is available at https://tinyurl.com/y9cyxem7
from Leagle.com.
Misty Ann Farris , Darren Patrick McDowell , for Robin Blaine
Andrews, Individually and as Personal Representative of the Heirs
and Estate of Garland Dale Pepper, Deceased, and Garland Pepper,
Jr., Susan Andrews, Kimberly Brown and Carolyn Walker, Appellant.
Laura Ellis Kugler , for John Crane, Inc., Appellee.
ASBESTOS UPDATE: Company Settles Asbestos Violations for $1.5MM
---------------------------------------------------------------
Marin Independent Journal reported that a corporation that manages
a residential complex in San Rafael agreed to pay a $1.5 million
settlement for alleged violations of asbestos-related laws in
California, prosecutors announced Wednesday.
The settlement resolves litigation filed by 10 California counties
against Chicago-based Equity Lifestyle Properties Inc. and two
related entities, MHC Operating Limited Partnership and Realty
Systems Inc.
Equity Lifestyle Properties, which specializes in mobile parks and
manufactured homes, has more than 40 properties in California.
Marin prosecutors joined the case because one of the company’s
concerns is Contempo Marin, the neighborhood in northeast San
Rafael.
The district attorney’s office said it is "unaware of any
residents of Contempo Marin actually being exposed to asbestos
during the Marin demolition or renovation activities."
The alleged violations occurred during renovation or demolition
projects from 2005 to 2014. Prosecutors said the company failed to
follow state laws on asbestos disposal, including worker
protections, inspections and notifications to air quality
regulators.
Company representatives could not be reached for comment. A lawyer
for the defendants declined to comment.
In a statement released by the Marin County District Attorney's
Office, the prosecution said the company was "cooperative
throughout the investigation and quickly responded to enhance" its
compliance efforts.
The settlement requires the defendants to pay $1 million in civil
penalties and $250,000 to reimburse the costs of the
investigation.
Marin's prosecution office will receive 10 percent of the
settlement, said Deputy District Attorney Andy Perez, who
represented the county. Perez said the residents of Contempo Marin
will not receive restitution because there were no identifiable
victims.
The settlement also requires the company to spend $250,000 on an
environmental project: solar power installations capable of
generating at least 100,000 kilowatt hours of energy a year. It can
fulfill the obligation at one or more properties in the state.
"My office is dedicated to protecting the environment and the
people of Marin County from potential exposure to hazardous air
pollutants like asbestos which is unsafe at any exposure level,"
District Attorney Edward Berberian said.
The other prosecution offices involved in the civil lawsuit were
those of Fresno, Monterey, Riverside, San Bernardino, San Diego,
Santa Clara, Santa Cruz, Stanislaus and Tulare counties.
Prosecutors filed the suit in Monterey.
ASBESTOS UPDATE: Court Declines to Bifurcate Asbestos Case
----------------------------------------------------------
The National Law Review reported that a Michigan federal court
declined to bifurcate a case involving a contract dispute between a
ceding insurer, Amerisure, and its reinsurer, Transatlantic Re, in
a case arising from underlying asbestos claims dating back to the
early 1980’s.
Amerisure sued TransRe alleging that it failed to reimburse
Amerisure under a facultative reinsurance agreement covering losses
and loss expenses arising from underlying asbestos claim
liabilities insured by Amerisure. For its part, TransRe alleged
that Amerisure breached the "duty of utmost good faith" by failing
to apprise TransRe of all relevant information in its underwriting
of the facultative agreement, thereby voiding the agreement.
TransRe also claimed that Amerisure's claim is barred due to late
notice.
Amerisure filed a motion to bifurcate the proceedings to address
the contract issues first. TransRe opposed the motion arguing that
even if the contract issues were resolved, the breach of duty of
utmost good faith and late notice issues would remain to be
addressed, and thus bifurcation would not result in a more
efficient proceeding.
The trial judge referred the issue to a special master, who found
that bifurcation was inappropriate, as a phased proceeding would
not result in convenience to the parties or judicial efficiency.
The report noted that much of the discovery involved on the
contract issues would overlap with the issues involved in TransRe's
defense based on breach of the duty of utmost good faith, such as
the underwriting intent and meaning of the applicable policy or
reinsurance language. The report concluded, therefore, that phasing
the proceedings might ultimately be less efficient, rather than
more efficient, and recommended denial of the motion.
The judge accepted the special master’s recommendation and denied
Amerisure's motion.
The case is Amerisure Mut. Ins. Co. v. Transatlantic Reinsurance
Co., No. 2:18-cv-11966 (USDC E.D. Mich., Nov. 29, 2018 (Report and
Recommendation of Special Master), Dec. 20, 2018 (adopting
report)).
ASBESTOS UPDATE: Cronin Widow Sues Companies for Husband's Death
----------------------------------------------------------------
Madison County Record reported that a widow is suing about three
dozen companies that used asbestos products, alleging failure to
warn and negligence in the death of her husband.
Christina Cronin, individually and as special representative for
the estate of William J. Cronin, deceased, filed a complaint Dec. 3
in St. Clair County Circuit Court against the nearly three dozen
defendants, alleging failure to exercise reasonable care and
caution for the safety of others.
According to the complaint, at various times during William
Cronin's work career, which started in 1969, he was exposed to and
inhaled or ingested asbestos fibers emanating from certain products
manufactured, sold, distributed or installed by defendants. On Dec.
5, 2016, the suit says, Cronin first became aware that he had
developed lung cancer, an asbestos-induced disease, and that the
disease was wrongfully caused. He died Dec. 23, 2016.
The plaintiff alleges the defendants negligently included asbestos
fibers in their products when adequate substitutes were available
and failed to provide adequate warnings and instructions concerning
the dangers of working with or around products containing these
fibers.
Christina Cronin seeks trial by jury, compensatory and economic
damages of more than $50,000 and all further just and equitable
relief. She is represented by attorney Randy L. Gori of Gori,
Julian & Associates PC in Edwardsville.
St. Clair County Circuit Court Case number 18-L-772
ASBESTOS UPDATE: Family Searches for Answer on Engineer's Death
---------------------------------------------------------------
Express and Star reported that the widow of a former Black Country
engineer who died from asbestos-related cancer has paid tribute to
her loving husband as she battles to find out more about his
working conditions.
Surinder Singh Ruprai, from Halesowen, died, aged 67, in 2016,
after he was diagnosed with mesothelioma -- a cancer of the lining
of the lung, most commonly associated with exposure to asbestos
materials.
His widow, Kamaljit, and his family are searching for answers in
his memory -- calling on his old workmates from Heaton Ward Ltd at
the company's Western Road site, in Birmingham, from 1970 to 1986,
to come forward about the working conditions.
Prior to his death, the father-of-three and grandfather-of-four
instructed specialist asbestos-related disease lawyers at Irwin
Mitchell to investigate how he deveoped the cancer and whether it
may have been linked to his work history.
Now his family are continuing with the investigations. They are
also keen for further details regarding the presence of asbestos
after the company was taken over by Birmingham Stopper and Cycle
Component Company Ltd. Surinder had worked for the latter from 1986
until he was made redundant in 2009.
Kamaljit, 62, said: "More than two years on from his death, the
entire family remain devastated that he is no longer with us.
"He was a much-loved father and grandfather and everyone misses him
so much.
"Surinder was desperate for justice regarding his illness before he
died and we feel obliged to continue the fight on his behalf. We
would be hugely grateful to anyone who can help us with this, as
key information could prove vital to getting answers regarding the
illness which took his life."
Satinder Bains, who represents Surinder's family at Irwin Mitchell,
added: "His family remain devastated by their loss but are keen to
gain answers regarding just how he came to be exposed to asbestos.
With this in mind, we would be grateful to anyone who can provide
information regarding these employers and the working conditions
Surinder would have faced.
"Any detail, no matter how small, could ultimately prove vital to
our efforts to secure justice for this family."
Anyone with information is asked to call 0121 2145281.
ASBESTOS UPDATE: Former Bricklayer's Widow Seeks Asbestos Info
--------------------------------------------------------------
The Northern Echo reported that the widow of a former bricklayer
who died of asbestosis is calling on former colleagues to come
forward to help her gain justice regarding his death.
Edward Hodgson Phillips, from Consett, died aged 74 in April with a
post-mortem stating that asbestosis, a serious lung condition
caused by exposure to asbestos, contributed to his death.
His family have now instructed lawyers at Irwin Mitchell to
investigate, with the legal experts working to develop a clearer
picture regarding how he came into contact with the material.
He was married for more than 50 years and his widow Sandra, 73,
said: "I can remember Eddie's time working at the steelworks so
clearly, particularly how he always used to leave work covered from
head to toe in white dust.
"He would often visit my parents' house after a shift so he could
have a bath, as his parents didn't have hot water.
"His job as a bricklayer meant he was responsible for building and
repairing the furnaces at the site and this included lining them
with asbestos.
"He also told me how he would have to cut the sheets and blocks of
insulation in order to do it, but as far as I am aware he was never
warned of any dangers.
"It is only eight months since Eddie's death and the whole family
still misses him so much.
"We were devastated to learn of his asbestosis and feel we deserve
some answers and justice regarding how it emerged.”
The family is working with Emma Tordoff, the legal expert at Irwin
Mitchell's Newcastle office.
As part of their investigations, they are now appealing for anyone
who worked with Mr Phillips, who was known as Eddie, to provide
information on the presence of asbestos at the site.
Ms Tordoff said: "Unfortunately we see all too often those, like
Eddie, who have suffered from asbestos exposure.”
To help, contact Stephanie Wilson at Irwin Mitchell's Newcastle
office on 0191-279-0095 or email
Stephanie.Wilson2@IrwinMitchell.com
Go to mesothelioma.com for more information on asbestos and
mesothelioma.
ASBESTOS UPDATE: Former Laborer Dies of Asbestos Exposure
---------------------------------------------------------
Clacton and Frinton Gazette reported that a former labourer died
after being exposed to asbestos, an inquest has ruled.
Alfred Griffiths was taken to Colchester Hospital by paramedics
from his Clacton home on November 30.
However after arrival his condition continued to deteriorate until
his death at 2.09pm on December 6.
A postmortem was carried out at the hospital and his cause of death
was found to be mesothelioma due to exposure to asbestos.
Chelmsford Coroner's Court heard how Mr Griffiths had been exposed
to the deadly mineral in his younger years while working as a
labourer.
Senior Coroner Caroline Beasley-Murray recorded a verdict of
industrial disease.
She said: "Please could my sympathies be expressed to Mr Griffiths'
family."
ASBESTOS UPDATE: J&J Faces 1st Trial in Asbestos Talc Suit
----------------------------------------------------------
CVN News reported that a California state court jury heard opening
statements in the first lawsuit involving Johnson & Johnson's
cosmetic talc products to go to trial in the important asbestos
litigation hub of Alameda County, and the full trial will be
webcast gavel-to-gavel by Courtroom View Network.
Every J&J talc trial in California with one exception has taken
place in the Los Angeles County area. This trial will be closely
watched, both due to it being the first such trial involving J&J's
products in one of the country's busiest jurisdictions for asbestos
cases, and also the plaintiff being represented by the same
attorney who landed a $117 million verdict in the first J&J talc
case last year in the company's home state of New Jersey. That
trial was also recorded by CVN.
The trial will also draw scrutiny, after plaintiffs have failed to
prevail at a cosmetic talc/mesothelioma lawsuit involving J&J since
May of last year. A Missouri jury returned a massive $4.6 billion
verdict against J&J in a talc case last summer, but that involved
claims asbestos supposedly present in talc caused ovarian cancer,
not mesothelioma.
Five cosmetic talc/mesothelioma trials involving J&J have gone to
trial in California since the first case in late 2017. Two ended in
defense verdicts, two ended in a mistrial, and one resulted in a
plaintiff verdict. The only trial of the five not to take place in
LA County occurred in rural Humbolt County, where J&J prevailed.
A sixth trial in LA that resulted in a $417 million verdict
involved ovarian cancer-related claims, but J&J prevailed on a
motion for a new trial. In addition to their trial verdicts, J&J
has notched a number of wins challenging talc verdicts in
post-trial motions and on appeal.
Similar J&J talc/mesothelioma cases over the last year in New
Jersey and South Carolina ended in defense verdicts and hung
juries, so with the momentum clearly shifting in favor of J&J at
talc mesothelioma trials, the outcome of this pending case could
play an important role in the contours of the potential resolutions
of other pending cases.
Thousands of cases involving cosmetic talc products from companies
like J&J, Colgate and others are pending throughout the country.
Most involve claims related to ovarian cancer, but a growing number
of mesothelioma-related cases have been filed after the first went
to trial in 2017.
The trial will also be the first after both Reuters and the New
York Times revealed extensive reporting on the alleged presence of
asbestos in J&J's talc products. The company's stock fell about 10
percent after publication of the articles, losing in excess of $45
billion in value.
The same month the Reuters and NYT pieces ran, J&J reached a $1.5
million settlement in a cosmetic talc case set for trial in January
in New York City. Bloomberg reported that, "In what appears to be a
first-of-its-kind settlement while facing thousands of lawsuits,
the world's largest health-care products maker and its talc
supplier agreed to pay more than $1.5 million to a woman who
claimed J&J's baby powder gave her asbestos cancer, according to
people familiar with the accord."
J&J and their co-defendant and talc supplier Imerys have
steadfastly maintained that their products do not cause ovarian
cancer or mesothelioma, and that the cosmetic talc sold to
consumers never contained asbestos. They accuse plaintiffs of
relying on attorney-driven science, and at trial they have
relentlessly battered scientific studies supposedly linking talc
exposure to cancer as being rooted in faulty and outdated
methodology.
J&J and Imerys have repeatedly filed motions seeking to bar news
media cameras from being present for cosmetic talc trials, largely
without success. They again sought to limit media access to this
pending trial in Oakland, however their objections were overruled
by Judge Brad Seligman.
Numerous other cosmetic talc trials are pending in the first weeks
of 2019 and beyond. A trial involving Colgate begins in Los
Angeles, and the first ovarian cancer case involving J&J since last
summer's blockbuster verdict goes to trial in St. Louis, Missouri
on January 20. That case will also be webcast live by Courtroom
View Network.
CVN's trial archive includes numerous talc and asbestos trials from
California, Missouri, New Jersey, South Carolina, Florida and
numerous other jurisdictions, along with hundreds of other personal
injury and products liability trials, all available for monthly
subscriptions as low as $99.
The Oakland case is captioned Teresa Leavitt and Dean McElroy v.
Johnson & Johnson, case number RG17882401, in Alameda County
Superior Court.
ASBESTOS UPDATE: Judge to Resolve Relationship of Espinosa Cases
----------------------------------------------------------------
The Hon. Haywood S. Gilliam, Jr. of the U.S. District Court for the
Northern District of California has referred the case styled Angela
D. Espinosa, et al., Plaintiffs, v. CertainTeed Corporation, et
al., Defendants, Case No. 18-cv-07059-HSG, (N.D. Cal.), to the Hon.
Vince Chhabria for consideration of whether the case is related to
Espinosa v. Certainteed Corp., 3:18-cv-01833-VC, pursuant to Civil
Local Rule 3-12(c).
A copy of the Order, is available at https://tinyurl.com/yb8jyfgr
from Leagle.com.
Angela D. Espinosa, individually and as successor in interest to
Edward M. Espinosa, Christoper M Espinosa, Trista Haggard &
Patricia L. Fonseth, Plaintiffs, represented by Carole M. Bosch ,
Kazan McClain Satterley & Greenwood, Denise R. Smith , Kazan
McClain Satterley Greenwood, Ian Wilfred Alido Rivamonte , Kazan
McClain Satterley & Greenwood A Professional Law Corporation &
Justin Alexander Bosl , Kazan McClain Satterley Greenwood.
CertainTeed Corporation, individually and as successor-in-interest
parent, alter ego and equitable trustee of Water Works Supply
Company, Inc. and Keasbey & Mattison Company, Defendant,
represented by Jennifer J. Lee -- jennifer.lee@dentons.com --
Dentons US LLP, Lisa Lurline Oberg -- Lisa.Oberg@dentons.com --
Dentons US LLP, Emily Katherine Ayers -- emily.ayers@dentons.com --
Dentons US LLP & Michael Neil Lloyd -- nlloyd@schiffhardin.com --
Schiff Hardin LLP.
The Republic Supply Company of California, Defendant, represented
by Nicole Denine Brown Yuen -- nyuen@foleymansfield.com.
Allied Fluid Products Corp., formerly known as Allied Packing &
Supply, Inc., Defendant, represented by Theodore Thomas Cordery --
tcordery@itkc.com -- Imai Tadlock Keeney & Cordery, LLP.
ASBESTOS UPDATE: Keener Couple Sues Over Wife's Lung Cancer
-----------------------------------------------------------
A wife and husband are suing dozens of companies that used asbestos
products, alleging failure to warn and negligence regarding the
wife's exposure to cancer-causing materials.
Madison County Record reported that Georgann Keener and Richard
Keener filed a complaint Dec. 3 in St. Clair County Circuit Court
against dozens of defendants, alleging failure exercise reasonable
care and caution for the safety of others.
According to the complaint, at various times during Georgann
Kenner's working career that started in 1972, she was exposed to
and inhaled or ingested asbestos fibers emanating from certain
products manufactured, sold, distributed or installed by the
defendants. On March 1, the suit says, she first became aware that
she had developed lung cancer, an asbestos-induced disease.
The suit alleges Keener has suffered great pain and anguish and
became liable for large sums of monies for medical expenses. The
plaintiffs allege the defendants negligently included asbestos
fibers in their products when adequate substitutes were available
and failed to provide adequate warnings and instructions concerning
the dangers of working with or around products containing asbestos
fibers.
The Keeners seek trial by jury, compensatory damages of more than
$50,000 and all further appropriate relief. They are represented by
attorney Randy L. Gori of Julian & Associates PC in Edwardsville.
St. Clair County Circuit Court Case number 18-L-771
ASBESTOS UPDATE: Man Arrested for Dumping Asbestos in Wildlife Area
-------------------------------------------------------------------
NewYorkUpstate.com reported that an Orleans County man was charged
by state Department of Environmental Conservation officers recently
for dumping asbestos-laden materials in a state wildlife management
area.
"On Jan. 3, ECOs charged a man for dumping asbestos-laden materials
on state land after a seven-month-long investigation. Carl J.
Rivers, 49, from Albion, was arrested on felony charges of
endangering public health, safety, or the environment in the 3rd
degree, a Class E felony, as well as a violation level charges of
unlawfully disposing of solid waste in Tonawanda Wildlife
Management Area in the town of Alabama. In May 2018, ECO Gary
Wilson was notified of an illegal dumpsite on Klossen Road. ECO
Wilson investigated the dump site and immediately notified the DEC
Spills unit and investigators with DEC's Bureau of Environmental
Crimes Investigation (BECI) unit.
ASBESTOS UPDATE: Maremont Files Ch. 11 to Deal With Asbestos Claims
-------------------------------------------------------------------
Meritor, Inc. (NYSE: MTOR) on Jan. 22, 2019, said that Maremont
Corporation, a non-operating subsidiary of Meritor, and Maremont's
three wholly-owned, non-operating subsidiaries, Maremont Exhaust
Products, Inc., AVM, Inc., and Former Ride Control Operating
Company, Inc., have filed cases under Chapter 11 of the U.S.
Bankruptcy Code in the U.S. Bankruptcy Court for the District of
Delaware.
The Debtors will seek to implement their Joint Pre-Packaged Plan of
Reorganization through the Chapter 11 Cases. Prior to the filing,
holders of asbestos claims -- the only voting class pursuant to the
Plan -- that voted on the Plan voted unanimously to accept the
Plan.
Meritor and its other non-Debtor subsidiaries are not part of the
Chapter 11 filing and will continue to operate as usual, but will
receive certain releases and other protections under the terms of
the Plan.
Jay Craig, CEO and president of Meritor, commented, "Meritor's
business operations, employees and customers are not impacted by
today's action by our non-operating subsidiary, Maremont. Through
this process, Maremont is seeking a constructive and equitable
resolution for claimants by establishing a trust that will treat
all individuals fairly and consistently while definitively
addressing its historical asbestos-related liabilities. Meritor's
financial position is strong and we remain focused on serving our
customers, driving operational excellence and achieving our
business objectives."
Among other things, the Plan is intended to permanently resolve all
current and future asbestos claims related to Maremont's historical
asbestos-related activities through the creation of a trust
pursuant to Section 524(g) of the U.S. Bankruptcy Code. If the
Plan is confirmed by the bankruptcy court and approved by the
district court and all other actions necessary to implement the
Plan are completed, Maremont will fund a 524(g) trust to address
its current and future asbestos claims and permanently enjoin any
future lawsuits related to such claims against, among others,
Meritor and its non-Debtor subsidiaries, and channel all such
claims and demands to the 524(g) trust.
Certain key terms of the Plan are as follows:
* Funding for the 524(g) trust will consist of a $28 million
contribution by Meritor, together with a contribution of Maremont's
remaining assets, including approximately $21 million in cash and
intercompany loan receivables less certain amounts needed to pay
for the administrative costs of the Chapter 11 Cases, as well as
its remaining insurance assets;
* An injunction that permanently protects the reorganized
Debtors, Meritor and its subsidiaries, and certain of their related
representatives from current and future claims stemming from
Maremont's historical asbestos activities;
* All claims other than asbestos claims against Maremont and its
subsidiary debtors will be paid in full or reinstated; and
* Meritor's equity interests in Maremont will be cancelled. The
524(g) trust will own 100% of the equity interests in reorganized
Maremont.
Asbestos Litigation
Maremont, a non-operating subsidiary of Meritor, manufactured
certain friction products containing asbestos from 1953 through
1977, when it sold its friction product business, and one of its
subsidiaries manufactured certain exhaust products containing
asbestos from 1954 to 1978, when it ceased using asbestos in such
products. Arvin Industries, Inc., a predecessor of Meritor,
acquired Maremont in 1986. Maremont and many other companies are
defendants in suits brought by individuals claiming personal
injuries as a result of exposure to asbestos-containing products.
As previously announced, on December 4, 2018, Maremont and its
subsidiaries initiated a process to equitably and permanently
resolve all asbestos liabilities related to the historic
manufacturing activities of Maremont and its subsidiaries by
soliciting votes from asbestos claimants. The deadline to submit
ballots was January 18, 2019. One hundred percent (100%) of
holders of current asbestos claims against Maremont that voted on
the Plan voted in favor of the Plan. There were approximately 1,900
and 2,800 active asbestos-related lawsuits against Maremont and its
subsidiary Maremont Exhaust Products, Inc. as of December 31, 2018
and December 31, 2017, respectively. Maremont believes that
establishing a 524(g) trust will ensure an equitable and permanent
resolution to all current and future asbestos claims related to
Maremont asbestos products.
Additional information regarding Maremont and the Section 524(g)
process is available at www.donlinrecano.com/maremontch11. Court
filings and information about Maremont's Plan are available at
www.donlinrecano.com/maremontch11 or by calling Maremont's claims
and noticing agent, Donlin, Recano and Company, Inc., at (212)
771-1128 or by sending an email to maremontinfo@donlinrecano.com.
The Debtors are represented in the Chapter 11 Cases by Sidley
Austin LLP and Cole Schotz P.C.
ASBESTOS UPDATE: Maremont Plan Offers 29.1% to Asbestos Claimants
-----------------------------------------------------------------
Maremont Corporation, et al., non-operating units of Meritor, Inc.
(NYSE: MTOR) that previously supplied vehicle parts with asbestos,
have sought Chapter 11 protection to seek approval of their Joint
Prepackaged Chapter 11 Plan that will deal with their asbestos
liabilities.
The centerpiece of the Plan is the creation of the Asbestos
Personal Injury Trust under Section 524(g) of the Bankruptcy Code
and the Asbestos Personal Injury Channeling Injunction that will
channel all Asbestos Personal Injury Claims to the Asbestos
Personal Injury Trust.
The Asbestos Personal Injury Trust will be funded with up to $50
million in cash (consisting of cash held by the Debtors and a
settlement payment). It is also currently anticipated that
Reorganized Maremont will own a commercial property worth
approximately $1.4 million. Additional consideration will be
contributed under the Plan by the Debtors and by Meritor on behalf
of itself and certain other "protected parties" pursuant to the
"restructuring transactions", and the Asbestos Personal Injury
Trust will receive 100% of the new common stock of Reorganized
Maremont. The assets of the Asbestos Personal Injury Trust will be
used to resolve all Asbestos Personal Injury Claims in accordance
with the terms of the Asbestos Personal Injury Trust Distribution
Procedures.
Assuming an Initial funding of not less than $58 million, holders
of Asbestos Personal Injury Claims are estimated to have a 29.1
percent recovery under the Plan. Should the initial funding be
between $58 million and $65 million, the initial payment percentage
will increase proportionately. To the extent the Asbestos Personal
Injury Trust is funded with less than $58 million or more than $65
million the initial payment percentage may be adjusted.
The Debtors estimate that the total Allowed amount of all
prepetition Claims other than Asbestos Personal Injury Claims,
Environmental Claims and Intercompany Claims will be de minimis.
The Plan provides that all classes of claims (other than Asbestos
Personal Injury Claims and Intercompany Claims) will be unimpaired,
and the Debtors plan to seek the Bankruptcy Court's approval to pay
such claims in the ordinary course during the Chapter 11 Cases, as
appropriate.
A copy of the Disclosure Statement is available for free at:
http://bankrupt.com/misc/Maremont_11_DS.pdf
ASBESTOS UPDATE: NY Asbestos Court Pivotal for Talc Litigation
--------------------------------------------------------------
Forbes reported that New York's specialized court for asbestos
lawsuits could become a pivotal battleground for litigation over
talcum powder as plaintiff lawyers seek to establish a record of
wins in a court system known for liberal rules and big jury
verdicts.
Talc manufacturers Johnson & Johnson and Colgate-Palmolive and
their wholesale suppliers insist their products are free from
deadly asbestos. But plaintiffs have won two talc trials so far in
NYCAL, as the asbestos court is known, and Johnson & Johnson in
December joined other defendants in settling a case for what one
report said was a total of $1.5 million, after both Reuters and the
New York Times ran lengthy stories detailing allegations the
company knew about asbestos contamination in its talcum powder.
Johnson & Johnson described that settlement with Texas attorney
Mark Lanier as a "one-off" situation and said it plans to
vigorously defend the more than 9,000 cases it still faces. It lost
a $4.7 billion jury verdict in St. Louis, now on appeal, but won a
jury trial in New Jersey in October after unveiling an aggressive
new strategy of criticizing the case against it as "a sham created
by plaintiffs' lawyers."
The company also ran full-page ads to counter the Reuters and New
York Times articles.
Defendants also can cite a favorable appeals court ruling in Juni
v. Ford Motor that should make it harder for plaintiffs to claim
even the tiny amount of asbestos their experts say contaminates
talcum powder could cause their disease.
Despite the bluster, J&J faces tough odds in NYCAL, which has a
reputation for loose rules of evidence and pro-plaintiff juries and
has been called a "Judicial Hellhole" by a national tort reform
group. One particularly bad sign came in a November 26 order by
Judge Manuel Mendez, the coordinating judge in charge of NYCAL's
docket.
In it, Mendez rejected J&J's motion to dismiss the lawsuit by Ann
Zoas and said punitive damages may be warranted of J&J's "continued
insistence there is no asbestos in talc." J&J settled the case on
December 18, two weeks before jury selection was to begin.
Four more talc lawsuits are scheduled to begin trial in NYCAL in
January, and the court's pro-plaintiff rules make it more difficult
than in some other jurisdictions for defendants to depose experts
and exclude evidence.
New York State uses the so-called Frye standard for scientific
evidence, under which experts can testify as long as their methods
are "generally accepted" in the scientific community. Federal
courts and dozens of states use the tougher Daubert standard under
which judges must serve as active gatekeepers, excluding experts
whose conclusions aren't peer-reviewed or replicable by other
researchers.
New York's Frye rule will allow experts like Dr. Ronald Gordon, a
research professor of pathology at Mt. Sinai Health System who
frequently testifies that talc contains asbestos fibers, a claim
J&J says is false. The dispute comes down to the definition of
asbestos.
Talc and asbestos are both silicate minerals, but government
regulations define asbestos as a silicate that has crystalized into
incredibly thin fibers, typically half-a-micron thick with a
length-to-width ratio of 20:1 to 100:1. A human hair, by comparison
averages 50 microns thick. Defendants accuse plaintiff experts like
Gordon of using unproven techniques to detect "asbestos" particles
that are actually harmless silicates.
"We believe that, in part, plaintiffs are trying to change the
accepted historical definition of what a regulated asbestos fiber
is," said David J. Fisher, an asbestos defense partner with MG+M.
Defendants have had success excluding the testimony of plaintiff
experts under the Daubert standard. In a September ruling in a
federal talc lawsuit in Georgia, for example, the judge said Gordon
used an unorthodox technique and didn't include notes that were
necessary for other experts to replicate his findings.
Other experts who were prepared to say the asbestos in talc caused
cancer were also excluded, since their opinion was based on
Gordon's finding of asbestos in the product.
In that ruling, the judge also noted the pathologist's colorful
past. Gordon admitted "he engaged in 'criminal activity regarding
drugs and drug laundering money'" in the early 1990s -- although he
denied it in more recent depositions - and entered the witness
protection program after cooperating with authorities, the judge
wrote. Gordon, in an email response, at first said he never
laundered money or admitted to it, but in a subsequent email said
the judge was quoting documents "out of context" and many facts
about his case had been withheld by federal prosecutors. According
to this Los Angeles Times article, Gordon became enmeshed in the
scheme because he was married to a goddaughter of John Gotti's
reputed successor.
The defense also can cite a favorable ruling by a New York appeals
court that, in theory at least, requires plaintiff experts to
provide scientific evidence showing how their clients became ill
from exposure to a specific product, not just asbestos generally.
Under the previous standard in NYCAL, plaintiffs only had to
testify they had worked in the presence of dust that other evidence
indicated might include asbestos. They didn't have to show that the
level of asbestos in the dust could cause disease.
Defense lawyers say the Juni decision tightened the rules, forcing
plaintiffs to hire industrial hygenists to quantify the amount of
asbestos they were exposed to from each specific product, based on
how they used it. If NYCAL judges honor the decision as defense
lawyers hope, that means talc plaintiffs must explain how they
could inhale or otherwise be exposed to enough of the asbestos
their experts say is in talc to reach levels that can cause
cancer.
Numerous epidemiological studies have failed to show an increased
rate of mesothelioma or other cancers among talc miners or women
who said they used baby powder.
The Juni decision was based on an earlier ruling, Parker v. Mobil
Oil, which said plaintiffs must prove a product is dangerous by
itself, not merely because it contains an ingredient that has been
found to be capable of causing disease. While plaintiff experts
disagree, defense lawyers say the combination of the two rulings
will make it harder for plaintiffs to prove exposure to the tiny
amounts of asbestos that could possibly be in talc could be the
cause of their cancer.
"Under Parker, we must show through some methodology that the
product at issue can, and did, cause the disease," Fisher said.
Even if the plaintiffs win at trial in NYCAL, they risk being
overturned on appeal under the Juni standard unless they present
plausible evidence that they were exposed to enough asbestos from
talcum powder to cause disease. That could be devastating to the
remaining inventory of talc cases, which could explain why both
sides agreed to settle the Zoas case. Johnson & Johnson said it
isn't capitulating, however.
"The decision to resolve any particular case in no way changes our
overall position that our talc is safe, is asbestos free and does
not cause cancer," the company said in a prepared statement. "We do
not have any organized program to settle Johnson's Baby Powder
cases, nor are we planning a settlement program.
ASBESTOS UPDATE: Payne Couple Sues Abb, et al., for Failure to Warn
-------------------------------------------------------------------
Madison County Record reported that a couple is suing dozens of
companies, alleging failure to warn and negligence in the use of
asbestos fibers.
Charles W. Payne and Christina Payne filed a complaint Nov. 29 in
St. Clair County Circuit Court against Abb Inc., and dozens of
other companies, alleging failure to exercise reasonable care and
caution for the safety of others.
According to the complaint, at various times during Charles Payne's
employment career, he was exposed to and inhaled or ingested
asbestos fibers emanating from certain products manufactured, sold,
distributed or installed by the defendants. The suit says on Feb.
26, he first became aware that he had developed lung cancer, an
asbestos-induced disease, and that the disease was wrongfully
caused.
The plaintiffs allege the defendants negligently included asbestos
fibers in their products when adequate substitutes were available
and failed to provide adequate warnings and instructions concerning
the dangers of working with or around products containing these
fibers.
The Paynes seek trial by jury, compensatory and punitive damages of
more than $50,000, court costs and all further appropriate relief.
They are represented by attorney Randy L. Gori of Gori, Julian &
Associates PC in Edwardsville.
St. Clair County Circuit Court case number 18-L-762
ASBESTOS UPDATE: Rule 26 Initial Disclosures in Espinosa Extended
-----------------------------------------------------------------
Pursuant to the stipulation between Plaintiffs and Defendants,
District Judge Haywood S. Gilliam, Jr. for the Northern District of
California, has extended the date for the Parties' Rule 26(a)(1)
initial disclosures, and such disclosures will be made 30 days
after the Court issues its rulings on the pending motion to remand
filed by Plaintiffs.
The case is entitled Angela D. Espinosa, et al., Plaintiffs, v.
CertainTeed Corporation, et al., Defendants, Case No.
18-cv-07059-HSG, (N.D. Cal.).
A copy of the Order, is available at https://tinyurl.com/y88tlwr4
from Leagle.com.
Angela D. Espinosa, individually and as successor in interest to
Edward M. Espinosa, Christoper M Espinosa, Trista Haggard &
Patricia L. Fonseth, Plaintiffs, represented by Carole M. Bosch ,
Kazan McClain Satterley & Greenwood, Denise R. Smith , Kazan
McClain Satterley Greenwood, Ian Wilfred Alido Rivamonte , Kazan
McClain Satterley & Greenwood A Professional Law Corporation &
Justin Alexander Bosl , Kazan McClain Satterley Greenwood.
CertainTeed Corporation, individually and as successor-in-interest
parent, alter ego and equitable trustee of Water Works Supply
Company, Inc. and Keasbey & Mattison Company, Defendant,
represented by Jennifer J. Lee -- jennifer.lee@dentons.com --
Dentons US LLP, Lisa Lurline Oberg -- Lisa.Oberg@dentons.com --
Dentons US LLP, Emily Katherine Ayers -- emily.ayers@dentons.com --
Dentons US LLP & Michael Neil Lloyd -- nlloyd@schiffhardin.com --
Schiff Hardin LLP.
Sully-Miller Contracting Company, individually and as
successor-in-interest, parent, alter ego and equitable trustee of
Sully-Miller Contracting Company, Defendant, represented by Barbara
Rose Adams -- badams@clarkhill.com -- Clark Hill LLP & Michael
Benjamin Sachs -- msachs@clarkhill.com -- Clark Hill LLC.
Foster Wheeler LLC, Defendant, represented by Edward R. Hugo --
ehugo@hugoparker.com -- Hugo Parker, LLP & Charles S. Park --
cpark@hugoparker.com -- Hugo Parker, LLP.
Allied Fluid Products Corp., formerly known as Allied Packing &
Supply, Inc., Defendant, represented by Theodore Thomas Cordery --
tcordery@itkc.com -- Imai Tadlock Keeney & Cordery, LLP.
The Republic Supply Company of California, Defendant, represented
by Nicole Denine Brown Yuen -- nyuen@foleymansfield.com -- Foley &
Mansfield, PLLP.
ASBESTOS UPDATE: Site Manager Diagnosed with Asbestos Disease
-------------------------------------------------------------
Keighley News reported that a site manager diagnosed with an
asbestos-related disease is appealing to former colleagues after
instructing lawyers to investigate his exposure to harmful asbestos
dust and fibres.
Father-of-three Barry Fitzpatrick, 61, worked for a building
company at sites across Yorkshire, including Airedale Hospital.
He said: "We worked on a variety of buildings, from council offices
to hospitals, and from schools to supermarkets. The apprentices did
a lot of the ripping out of fittings and fixtures. I was just
covered in dust doing those jobs.
"I remember a job at Airedale Hospital. I was drilling, sawing,
screwing and fitting asbestos sheets. This released asbestos dust
which I breathed in.
"At another job at a hospital in Bradford I had to remove asbestos
pipe lagging from pipes leading to a large boiler. We were covered
in asbestos dust all day."
He was employed for five years by a Bradford-based company called
Thompson & Co. Mr Fitzpatrick, who is from Skipton, joined
Thompsons in 1972 as an apprentice ripping out and re-fitting
properties.
He is being helped by legal firm Irwin Mitchell. Fay Marshall,
asbestos-related specialist at the firm, said: "This is an example
of the dangerous impact asbestos exposure can have, with true
consequences only becoming apparent decades after contact with the
harmful material.
"We'd be grateful to any of Barry's former workmates who may be
able to shed light on the presence of asbestos at jobs Barry would
have been a team member on."
*********
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
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2019. All rights reserved. ISSN 1525-2272.
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