/raid1/www/Hosts/bankrupt/CAR_Public/190918.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, September 18, 2019, Vol. 21, No. 187
Headlines
18 GREENWICH: Tavera Sues over Time Shaving
321 HENDERSON: Seneca's Bid to Stay Dockery Pending Appeal Denied
A&S BAGEL: Marvin Seeks Minimum & Overtime Wages
ABM INDUSTRIES: Settlement in Castro Suit Granted Final Approval
ABM INDUSTRIES: Trial in Bucio Class Suit Set for May 2020
ALDI INC: Lacey-Salas Suit Moved to C.D. Calif.
ALPHA TECH: Bid to Toll Statute of Limitations in Martinez Denied
AMAZON.COM SERVICES: Court OKs $32.8K Settlement in Christeson
AMAZON.COMKSDC: Renewed Bid for Christeson Deal Approval Overruled
APEX SYSTEMS: Removes Ratcliffe Suit to S.D. California
APPLE INC: Court Dismisses Processor Suit Without Leave to Amend
APPLIED UNDERWRITERS: Obtains Favorable Ruling in Class Action
BANDWIDTH.COM CLEC: Hanks Sues over Unsolicited Phone Calls
BARKMAN HONEY: Faces Wingate Suit in District of Kansas
BIMBO BAKERIES: Oddo, et al. Seek to Certify Class of Sales Reps
BIRDEYE INC: J. Hindi Suit Transferred to N.D. Cal.
BMW: Takes Regency Funding to High Court Over Airbag Payouts
BOX INC: Continues to Defend Securities Class Suit in California
BRIDGEPOINT EDUCATION: Lead Plaintiff & Lead Counsel in Stein Named
BUMBLE BEE: Judge Certifies Tuna Antitrust Class Action
CANNTRUST HOLDINGS: Kalloghlian Launches Securities Class Action
CARRIZO OIL: Callon Petroleum Merger Docs Lack Info, Umland Says
CASH CONVERTERS: Expects $4MM Loss Following Class Action Payout
CBS: Faces Class Action Over Collapse of Federal Credit Union
CEDAR SHAKE: Court Sets Initial Case Management in Antitrust Suit
CELENTANO STADTMAUER: Court Grants Bid to Dismiss Klotz FDCPA Suit
CENTRAL RESEARCH: Ct. Stays Vlasak Class Certification Proceedings
CEPHALON: Judge OK's $65.8MM Provigil Class Action Settlement
CHARTER COMMUNICATIONS: JAMS Arbitration Award in Harper Confirmed
CHICAGO BRIDGE: Settlement in Jones FLSA Suit Has Final Approval
CHURCH & DWIGHT: $300K Settlement in Patton Has Final Approval
CLOUDERA INC: Hortonworks Merger-Related Suit Ongoing
COMMUNICATIONS UNLTD: Hollen Seeks Minimum & OT Wages for Techs
COMMUNITY HEALTH: Faces Class Action Over Inflated Stock Prices
COOK COUNTY, IL: Judge Okays Jail Indecency Class Action
COTY INC: Continues to Defend Suit over Cottage Tender Offer
DALLAS COUNTY, TX: Dismissal w/o Prejudice of Elroy Suit Endorsed
DETROIT POLICE: Court Denies Certification of DDC Detainees Class
DIRECTV LLC: Court OK's Creve Coeur's Bid to Consolidate Suits
DUN & BRADSTREET: Sidbury Seeks Unpaid Wages & OT for Sales Reps
E & A PROTECTIVE: Settlement in Martinez Suit Has Prelim Approval
EXAMINATION MANAGEMENT: Court OKs $700K Settlement in Gonzalez
FACEBOOK INC: EFF Weighs In On Biometric class Action Ruling
FERGUSON, MO: Court Denies Bid to Dismiss Fant Suit
FIRSTSOURCE ADVANTAGE: Court OKs Dismissal of Perdomo FDCPA Suit
FORCE SERVICES: Court Enters Judgment in Ruiz FLSA/NYLL Suit
FORD MOTOR: Dismissal of Hiring Discrimination Suit Partly Vacated
GERAWAN FARMING: $5MM Settlement in Amaro Suit Has Prelim Approval
GGP INC: Del. Ch. Allows Books & Records Inspection in Kosinski
GOOGLE INC: Pixel Microphone Class Action Settlement Finalized
H&R BLOCK: Bid to Stay Proceeding in Olosoni and Snarr Suit Pending
HELIX ENERGY: Court Narrows Claims in Shaw Discrimination Suit
HKA ENTERPRISES: Settlement in Moorhead Suit Has Prelim Approval
HYUNDAI: Santa Fe SUV Acceleration Class Action Survives
INTEGRATED TECH: Class in Monplaisir Suit Conditionally Certified
JEFFERSON, TX: Nourse Seeks to Certify Class
JPMORGAN CHASE: Court Dismisses Anderman Suit
JPMORGAN CHASE: Court OKs Dismissal of Holland TCPA Suit
JUST ENERGY: White Sues over Inflated Share Price
KRAFT HEINZ: $3MM Vazquez Labor Suit Settlement Has Prelim OK
L BRANDS: Continues to Defend Shareholder Class Action in Ohio
LAKE ARBOR, MI: Apartment Tenants' Class Action Pending
LEGACYTEXAS FINANCIAL: Tijerina Balks at Prosperity Merger Deal
LEXINGTON LAW: Court Stays Rosales Pending Pena Deal Approval
LIBERTY MUTUAL: Court Narrows Claims in First State's Suit
LLANOS MAINTENANCE: Court Dismisses ERISA Suit
LLR INC: 2nd Amended Porsch Suit Dismissed without Prejudice
LOS ANGELES, CA: Search Warrant Served Relating to DWP Case
LVNV FUNDING: Court Narrows Claims in Norton's FDCPA Suit
LYFT: Faces Class Actions Over ADA Violation
M-I LLC: $556K Settlement in Syed FCRA Suit Has Final Approval
MARKETSOURCE INC: Court OKs $83K Settlement in Delgado Suit
MARTHA STEWART: Settlement in Raden Suit Has Final Approval
MDL 2804: 43 Actions in Opiate Suit Moved to N.D. Ohio
MIDLAND CREDIT: Court Denies Count I Dismissal in Pierre Suit
MINNESOTA: Court Denies Order Amendment Bid
MONTREAL: Judge Authorizes Racial Profiling Class Action
MOON RIDGE: Court Certifies Class of Laid Off Employees
MRI INTERNATIONAL: Court Approves $220K Sale of Honolulu Property
MY PILLOW: Bid to File Under Seal in Wuest Suit Partly Granted
NAT'L MILK: Discovery Sought on Economist's Role in Class Action
NBC WEST: Removes Taylor Suit to Central District of California
NEW HAMPSHIRE: Court Drops Judge as Defendant in Detention Suit
NEW YORK UNIVERSITY: Berger Remanded to State Court
OASIS LEGAL: 11th Cir. Affirms Denial of Bid to L. Davis' Suit
OCWEN FINANCIAL: Weiner May File Docs Under Seal in RICO Suit
OOMA INC: De Minimis Settlement Reached in Reid Class Action
OOMA INC: Settlement in Consolidated Suit Awaits Court Approval
PALMETTO CONSTRUCTION: Seeks to Hire Geist Law LLC as Attorney
PENNY LANE: Quinn et al. Seek Unpaid Wages for Caregivers
PORTAGE COUNTY, WI: Class of Detainees Certified in Lieberman Suit
QUALCOMM: Advocacy Groups Challenge Class Certification Appeal
RENTECH INC: Oct. 10 Settlement Fairness Hearing Set
RHP PROPERTIES: Mass. App. Vacates Certification Denial in Layes
RISE MEDICAL: Court OKs A. Horn Class Action Settlement
ROSS STORES: Settlement in Jacobo Fraud Suit Has Final Approval
RUSHMORE LOAN: Court Dismisses Paciti FDCPA Suit
SAN JUAN, PUERTO RICO: Court Denies Bid for Class Certification
SANDALS RESORTS: Briefing on McCoy Suit Dismissal Bid Partly Stayed
SANTA BARBARA TRANSPORTATION: Diaz Suit Goes to C.D. California
SCHELL & KAMPETER: 3rd Amended Classick Suit Dismissed w/ Prejudice
SCHMIDT PAINTING: Santos Seeks OT Pay for Building Painters
SEATTLE, WA: Court OKs Settlement in Keck Suit
SEIU LOCAL 669: Gov't Worker Files Class Action Over Union Fees
SETERUS INC: Court Dismisses Barilla FDCPA Suit
SIRIUS XM: Court Denies Bid to Intervene in Buchanan
SIRIUS XM: Settles Class Action Over TCPA Violation
SKM RECYCLING: Likely to Be Sold Following Coolaroo Settlement
SOCIAL VOCATIONAL: Delgadillo Seeks Unpaid Wages for Caregivers
SOUTH CAROLINA: 4th Cir. Dismisses Firriolo Suit
SOUTHERN RESPONSE: Set to Close in December Amid Legal Action
SUNPOWER CORPORATION: Court Narrows Claims in Jannarone Suit
SYNACOR INC: Court Grants Dismissal of Lefkowitz Securities Suit
TEXAS ROADHOUSE: Roberson Seeks Minimum Wages for Restaurant Staff
TJM PROPERTIES: Faces Jocko et al. Suit in New York Supreme Court
TRUDERMA LLC: 9th Cir. Flips Bitton Suit Dismissal with Prejudice
U.S. BANK: Removes Diegert Case to Northern District of Florida
ULTA SALON: Court Denies Bid for Class Certification
UNITED HEALTHCARE: Deal in Spinedex ERISA Suit Has Final Approval
UNITED STATES: Court Certifies Class in APA Suit
UNITED STATES: Court Issues TRO in JOP Suit Over TVPRA Violations
UNITEDHEALTH GROUP: Manley Remanded to Wash. County Circuit Court
UNIVERSAL TELEVISION: Removes Tippin Labor Case to C.D. Calif.
VEREIT INC: Class Settlement Reached in American Realty Class Suit
WELLS FARGO: Class Action Settlement Notification Program Begins
WOOLWORTHS: $100MM Shareholder Class Action to Proceed
ZUMIEZ INC: Appeal in Herrera Class Action Ongoing
[*] Filing Consumer Complaints, Redressal Faster Under New Bill
[*] Squire Patton Attorney Discusses TCPA Class Litigation
*********
18 GREENWICH: Tavera Sues over Time Shaving
-------------------------------------------
VICTOR GONZALEZ TAVERA, on behalf of himself, FLSA Collective
Plaintiffs and the Class, the Plaintiff, vs. 18 GREENWICH AVENUE,
LLC d/b/a ROSEMARY'S, BOBO RESTAURANT LLC d/b/a BOBO, 24 5TH AVE
LLC d/b/a CLAUDETTE and CARLOS SUAREZ, the Defendants, Case No.
1:19-cv-08258 (S.D.N.Y., Sept. 4, 2019), seeks to recover
compensation for unpaid off-the-clock work, including unpaid
overtime premium, due to time shaving, liquidated damages, and
attorneys' fees and costs, pursuant to the Fair Labor Standards Act
and the New York Labor Law.
The class includes but not limited to waiters, busboys, runners,
servers, food preparers, dishwashers, bartenders and bar-backs
employed by Defendants on or after the date that is six years
before the filing of the complaint.
Defendants operate a restaurant enterprise using the following
trade names at the following locations: 18 Greenwich Ave., New
York, NY 10011 ("Rosemary's"); 181 West 10th St., New York, NY
10014 ("Bobo"); and 24 Fifth Avenue New York, New York 10011
("Claudette").[BN]
Attorneys for the Plaintiff and the Class are:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
321 HENDERSON: Seneca's Bid to Stay Dockery Pending Appeal Denied
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In the case, LARRY G. DOCKERY, on behalf of himself and all others
similarly situated, Plaintiffs, v. STEPHEN E. HERETICK, et al.,
Defendants, and NEW YORK LIFE INSURANCE COMPANY, et al., Nominal
Defendants, Civil Action No. 17-4114 (E.D. Pa.), Judge Michael M.
Baylson of the U.S. District Court for the Eastern District of
Pennsylvania denied Defendant Seneca One Finance, Inc.'s Motion to
Certify for Interlocutory Appeal and to Stay.
Seneca, which does not reside in the Eastern District of
Pennsylvania, challenged venue, among other things, in each of its
motions to dismiss. Seneca argued that the Plaintiff did not
allege that any payments were made by or to Seneca in the District,
and that the Plaintiff did not otherwise allege that Seneca resides
in, has an agent in, or transacts business in the District.
The Plaintiff argued that venue was proper because (1) a
substantial part of the events giving rise to his claims arose in
the Distric; and (2) 321 Henderson and Wentworth reside in the
District and the Court can attribute the forum contacts of Seneca's
RICO co-conspirators to Seneca for purposes of determining venue.
In the Opinion denying the motions to dismiss, Judge Baylson found
that venue was proper because, under Section 1965(a), venue is
proper wherever a defendant resides, is found, has an agent, or
transacts its affairs, and 321 Henderson and Wentworth do not
dispute that they are located in the District. The Judge also
applied the concept of "pendent venue" to the state law claims
because they arose out of the same operative facts, although the
state law claims were ultimately dismissed.
Seneca now requests an order certifying an interlocutory appeal on
the Court's venue decision, and argues that the decision to uphold
venue over Seneca was wrong for two reasons: (1) the Third Circuit
has not adopted the co-conspirator venue theory in the context of
RICO claims, and other courts have rejected the application of the
theory in similar contexts; and (2) even if the Third Circuit had
adopted the co-conspirator venue theory as applied to RICO claims,
it should not apply in Seneca's case because Plaintiff does not
allege that 321 Henderson and Wentworth are Seneca's
co-conspirators.
Seneca also requests that the Court stay these proceedings pending
the resolution of the interlocutory appeal.
Judge Baylson will not certify the venue decision for interlocutory
appeal based on the absence of Third Circuit precedent regarding
the co-conspirator venue theory for RICO liability. Nor has Seneca
shown that exceptional circumstances justify a departure from the
basic policy against postponing appellate review until after the
entry of a final judgment.
Under 18 U.S.C. Section 1965(a)-(b), if venue is proper as to one
RICO defendant, it may extend to all other RICO defendants if the
ends of justice require it, even if venue would not otherwise be
proper as to each of them. Otherwise, RICO enterprises could
avoid, or at least stymie, civil liability by spreading their
participants out across various judicial districts.
Count I of the Amended Class Action Complaint appeared to allege
that all the Purchaser Defendants were part of the one
association-in-fact enterprise. The Plaintiff did not clarify that
it was alleging three separate association-in-fact enterprises
until the Court directed him to amend Count I at the second oral
argument. The Plaintiff amended Count I by filing an entirely new
complaint -- the Second Amended Class Action Complaint. After the
Second Amended Class Action Complaint was filed, the Court
determined that the previous briefing on the motions to dismiss
should apply with equal force to the Second Amended Class Action
Complaint, and gave Defendants leave to file supplemental briefs
regarding why Count I should be dismissed. Seneca's supplemental
brief did not raise anew its arguments regarding venue.
The Judge holds that RICO Section 1965(b) does not speak in terms
of "co-conspirators"; rather, it makes venue proper as to other
parties residing in any other district. Seneca, even if it is not
alleged to be a co-conspirator of 321 Henderson or Wentworth, is
another party in the case. Given the totality of facts and the
procedural history of the case, the Judge has concluded that the
ends of justice require finding venue proper as to Seneca, even
though it is not alleged to have conspired with 321 Henderson or
Wentworth, and even though there may be another venue that is
proper for all the three Defendants.
For the foregoing reasons, Jduge Baylson deneid Seneca's Motion to
Certify for Interlocutory Appeal and to Stay. An appropriate Order
follows.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/VKFPN0 from Leagle.com.
LARRY G. DOCKERY, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY
SITUATED, Plaintiff, represented by JEROME M. MARCUS --
jmarcus@marcusauerbach.com -- MARCUS & AUERBACH LLC, JONATHAN
AUERBACH -- auerbach@marcusauerbach.com -- MARCUS & AUERBACH LLC,
DAVID S. PEGNO -- dpegno@dpklaw.com -- DEWEY PEGNO & KRAMARSKY
LLP,
LEE LARSON HULSEBUS -- lhulsebus@dpklaw.com -- DEWEY PEGNO &
KRAMARSKY LLP & THOMAS E.L. DEWEY -- tdewey@dpklaw.com -- DEWEY
PEGNO & KRAMARSKY LLP.
STEPHEN E. HERETICK, Defendant, represented by JEFFREY B. MCCARRON
-- jmccarron@swartzcampbell.com -- SWARTZ CAMPBELL LLC & KATHLEEN
M. CARSON -- kcarson@swartzcampbell.com -- SWARTZ CAMPBELL LLC.
321 HENDERSON RECEIVABLES LLC & J.G. WENTWORTH ORIGINATIONS LLC,
Defendants, represented by A. CHRISTOPHER YOUNG --
youngac@pepperlaw.com -- PEPPER HAMILTON LLP, CHARLES S. MARION,
BLANK ROME LLP, JOSEPH C. CRAWFORD, PEPPER HAMILTON LLP & SAMUEL
D.
HARRISON -- harrisons@pepperlaw.com -- PEPPER HAMILTON LLP.
SENECA ONE FINANCE, INC., Defendant, represented by SAMUEL W.
CORTES -- scortes@foxrothschild.com -- FOX ROTHSCHILD LLP &
MELISSA
E. SCOTT, FOX ROTHSCHILD LLP.
NEW YORK LIFE INSURANCE COMPANY & METROPOLITAN LIFE INSURANCE
COMPANY, Nominal Defendants, represented by STEPHEN R. HARRIS --
sharris@cozen.com -- COZEN O'CONNOR & SUSAN J. STAUSS , COZEN
O'CONNOR.
A&S BAGEL: Marvin Seeks Minimum & Overtime Wages
------------------------------------------------
A class action lawsuit has been filed against A&S Bagel Inc. et al.
The case is captioned as BONILLA, MARVIN INDIVIDUALLY AND ON BEHLF
OF ALL OTHER PERSONS SIMILARLY SITUATED, the Plaintiff, vs. A&S
BAGEL INC., ANTONINO SCOLIERI INDIVIDUALLY, AND RELATED OR
AFFLILATED ENTITIES, the Defendants, Case No. 603116/2019 (N.Y.
Sup., Sept. 5, 2019). The case is assigned to the Hon. Judge Denise
L. Sher.
The Plaintiff seeks to recover unpaid minimum wages and overtime
compensation on behalf of himself and a Putative Class, which they
were entitled to receive pursuant to New York Labor Law.
A & S Bagels Inc. is a family owned and operated wholesaler,
distributor and retailer of New York bagels, raw dough bagels, and
par-baked bagels.[BN]
Attorneys for the Plaintiff are:
VIRGINIA & AMBINDER,LLP
40 Broad Street,7th Floor
New York, NY 10004
Telephone: (212) 943-9080
Attorneys for the Defendants are:
MILBER, MAKRIS, PLOUSADIS SEID
1000 Woodbury Rd Ste 402
Woodbury, NY 11797
Telephone: (516) 712-4000
ABM INDUSTRIES: Settlement in Castro Suit Granted Final Approval
----------------------------------------------------------------
ABM Industries Incorporated said in its Form 10-Q Report filed with
the Securities and Exchange Commission on September 6, 2019, for
the quarterly period ended July 31, 2019, that a California court
has granted final approval to the settlement in the case, Castro
and Marmolejo v. ABM Industries, Inc., et al.
On October 24, 2014, Plaintiff Marley Castro filed a class action
lawsuit alleging that ABM did not reimburse janitorial employees in
California for using their personal cell phones for work-related
purposes, in violation of California Labor Code section 2802.
On January 23, 2015, Plaintiff Lucia Marmolejo was added to the
case as a named plaintiff. On October 27, 2017, plaintiffs moved
for class certification seeking to represent a class of all
employees who were, are, or will be employed by ABM in the State of
California with the Employee Master Job Description Code "Cleaner"
beginning from October 24, 2010.
On May 25, 2017, the Defendants removed the case from the Superior
Court of California, County of Alameda, Case No. RG14745764, to the
U.S. District Court for the Northern District of California.
ABM filed its opposition to class certification on November 27,
2017. On January 26, 2018, the district court granted plaintiffs'
motion for class certification. The court rejected plaintiffs'
proposed class, instead certifying three classes that the court
formulated on its own: (1) all employees who were, are, or will be
employed by ABM in the State of California as Cleaner Employees who
used a personal cell phone to punch in and out of the EPAY system
and who (a) worked at an ABM facility that did not provide a
biometric clock and (b) were not offered an ABM-provided cell phone
during the period beginning on January 1, 2012, through the date of
notice to the Class Members that a class has been certified in this
action; (2) all employees who were, are, or will be employed by ABM
in the State of California as Cleaner Employees who used a personal
cell phone to report unusual or suspicious circumstances to
supervisors and were not offered (a) an ABM-provided cell phone or
(b) a two-way radio during the period beginning four years prior to
the filing of the original complaint, October 24, 2014, through the
date of notice to the Class Members that a class has been certified
in this action; and (3) all employees who were, are, or will be
employed by ABM in the State of California as Cleaner Employees who
used a personal cell phone to respond to communications from
supervisors and were not offered (a) an ABM-provided cell phone or
(b) a two-way radio during the period beginning four years prior to
the filing of the original complaint, October 24, 2014, through the
date of notice to the Class Members that a class has been certified
in this action.
On February 9, 2018, ABM filed a petition for permission to appeal
the district court's order granting class certification with the
United States Court of Appeals for the Ninth Circuit, which was
denied on April 30, 2018.
On March 20, 2018, ABM moved to compel arbitration of the claims of
certain class members pursuant to the terms of three collective
bargaining agreements. In response to that motion, on May 14, 2018,
the district court modified the class definition to exclude all
claims arising after the operative date(s) of the applicable
collective bargaining agreements (which is June 1, 2016 for one
agreement and May 1, 2016 for the other two agreements).
However, the district court denied the motion to compel arbitration
as to claims that arose prior to the operative date(s) of the
applicable collective bargaining agreements. ABM has appealed to
the Ninth Circuit the district court's order denying the motion to
compel arbitration with respect to the periods preceding the
operative dates of the collective bargaining agreements.
After a court-ordered mediation held on October 15, 2018, the
parties agreed to a class action settlement of $5.4 million,
subject to court approval. The plaintiffs' motion for preliminary
approval of the settlement was filed on January 4, 2019, and the
court held a hearing on the motion on February 12, 2019. On
February 14, 2019, the court granted preliminary approval of the
settlement.
ABM Industries said, "The court granted final approval of the
settlement on September 3, 2019, and we expect to fund the
settlement on or before September 24, 2019. In connection with the
settlement, we modified our existing written policies for
California to expressly confirm that ABM service workers are not
required to use personal cell phones for work purposes and began
centralizing the process and implementing technology for such
employees to request reimbursement for personal cell phone use due
to work."
ABM Industries Incorporated provides integrated facility solutions
in the United States and internationally. It operates through
Business & Industry, Aviation, Technology & Manufacturing,
Education, Technical Solutions, and Healthcare segments. The
company was founded in 1909 and is headquartered in New York, New
York.
ABM INDUSTRIES: Trial in Bucio Class Suit Set for May 2020
----------------------------------------------------------
ABM Industries Incorporated said in its Form 10-Q Report filed with
the Securities and Exchange Commission on September 6, 2019, for
the quarterly period ended July 31, 2019, that the trial in the
consolidated cases of Bucio and Martinez v. ABM Janitorial Services
has been set for May 26, 2020.
The Bucio case, filed on April 7, 2006, in the Superior Court of
California, County of San Francisco, alleges the Company failed to
provide legally required meal periods and make additional premium
payments for such meal periods, pay split shift premiums when owed,
and reimburse janitors for travel expenses.
There is also a claim for penalties under the California Labor Code
Private Attorneys General Act ("PAGA"). On April 19, 2011, the
trial court held a hearing on plaintiffs' motion to certify the
class.
At the conclusion of that hearing, the trial court denied
plaintiffs' motion to certify the class. On May 11, 2011, the
plaintiffs filed a motion to reconsider, which was denied. The
plaintiffs appealed the class certification issues. The trial court
stayed the underlying lawsuit pending the decision in the appeal.
The Court of Appeal of the State of California, First Appellate
District (the "Court of Appeal"), heard oral arguments on November
7, 2017. On December 11, 2017, the Court of Appeal reversed the
trial court's order denying class certification and remanded the
matter for certification of a meal period, travel expense
reimbursement, and split shift class. The case was remitted to the
trial court for further proceedings on class certification,
discovery, dispositive motions, and trial.
On September 20, 2018, the trial court entered an order defining
four certified subclasses of janitors who were employed by the
legacy ABM janitorial companies in California at any time between
April 7, 2002 and April 30, 2013, on claims based on previous
automatic deduction practices for meal breaks, unpaid meal
premiums, unpaid split shift premiums, and unreimbursed business
expenses, such as mileage reimbursement for use of personal
vehicles to travel between worksites.
On February 1, 2019, the Superior Court held that the discovery
related to PAGA claims allegedly arising after April 30, 2013 would
be stayed until after the class and PAGA claims accruing prior to
April 30, 2013 had been tried. The parties engaged in mediation in
July 2019, which did not result in settlement of the case. This
matter has been set for trial on May 26, 2020.
ABM Industries said, "Prior to trial, we will have the opportunity
to move for summary judgment, seek decertification of the classes,
or engage in further mediation, if we deem such actions
appropriate. We expect to engage in one or more such activities in
upcoming quarters."
ABM Industries Incorporated provides integrated facility solutions
in the United States and internationally. It operates through
Business & Industry, Aviation, Technology & Manufacturing,
Education, Technical Solutions, and Healthcare segments. The
company was founded in 1909 and is headquartered in New York, New
York.
ALDI INC: Lacey-Salas Suit Moved to C.D. Calif.
-----------------------------------------------
In the case, JENNIFER LACEY-SALAS, an individual on behalf of
herself and on behalf of all persons similarly situated, Plaintiff,
v. ALDI INC., a corporation, and AI CALIFORNIA LLC, a limited
liability company, Defendants, Case No. 19cv1269-MMA (MDD) (S.D.
Cal.), Judge Michael M. Anello of the U.S. District Court for the
Southern District of California granted the parties' joint motion
to transfer the case to the Central District of California pursuant
to the first-to-file rule.
On June 7, 2019, the Plaintiff filed the putative class action
against the Defendants, alleging various wage and hour claims in
the Superior Court of California, County of San Diego. On July 10,
2019, the Defendants removed the action to this Court pursuant to
the Class Action Fairness Act ("CAFA").
On July 30, 2019, the parties filed a joint motion to transfer the
case to the Central District of California pursuant to the
first-to-file rule. Under the first-to-file rule, district courts
have discretion to dismiss, stay, or transfer a case to another
district. In deciding whether to apply the first-to-file rule,
courts analyze three factors: the chronology of the lawsuits,
similarity of the parties, and similarity of issues. If the three
factors are satisfied, the court in which the second action was
filed may transfer, stay, or dismiss the proceeding in order to
allow the court in which the first action was filed to decide
whether to try the case.
Upon consideration of the relevant factors, Judge Anello finds that
all three factors weigh in favor of transferring the instant action
to the Central District. The Defendants filed a notice of related
cases regarding a similar action, Gant v. ALDI Inc. and AI
California LLC, Case No. 2:19-cv-3109-JAK-PLA, which was originally
filed in Los Angeles County Superior Court on Feb. 14, 2019 and
removed to the Central District of California on April 22, 2019.
Notably, Gant was filed nearly four months prior to the instant
action. Additionally, both Gant and the instant action involve the
same Defendants.
Moreover, the proposed class in the action is encompassed by the
proposed class in Gant and both cases assert substantially similar
wage and hour claims, such as failure to pay overtime, failure to
provide meal and rest periods, failure to provide accurate wage
statements, failure to timely pay wages at termination, and failure
to reimburse all reasonable and necessary business expenses.
Further, the parties "jointly request the transfer of this action
to the Central District of California." Id. at 2.
Based on the foregoing, Judge Anello finds that the requirements of
the first-to-file rule are satisfied and he, in his discretion,
finds that transferring the instant action to the Central District
of California will preserve judicial resources. Accordingly, the
he granted the the joint motion and transferred the action to the
Central District of California. The Clerk of Court is instructed
to terminate all pending motions, deadlines, and hearings and close
the case.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/6CEJLn from Leagle.com.
Jennifer Lacey-Salas, an individual, on behalf of herself and on
behalf of all persons similarly situated, Petitioner, represented
by Norman B. Blumenthal -- norm@bamlawca.com -- Blumenthal
Nordrehaug Bhowmik De Blouw LLP, Charlotte James --
CHARLOTTE@BAMLAWCA.COM -- Blumenthal Nordehaug Bhowmik De Blouw LLP
& Jeffrey Scott Herman -- Jeffrey@bamlawca.com -- Blumenthal
Nordrehaug Bhowmik De Blouw LLP.
Aldi Inc., a Corporation & AI California LLC, a Limited Liability
Company, Respondents, represented by Leo Q. Li -- lli@seyfarth.com
-- Seyfarth Shaw LLP & Mason R. Winters -- mwinters@seyfarth.com --
Seyfarth Shaw LLP.
ALPHA TECH: Bid to Toll Statute of Limitations in Martinez Denied
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In the case, PEDRO RODRIGUEZ MARTINEZ, MATEO HERNANDEZ LOPEZ, and
ELMER MENJIVAR ARGETA, on behalf of themselves and all others
similarly situated, Plaintiffs, v. CESAR MENDOZA; JORGE RAMOS; EAST
CAROLINA COMMERCIAL SERVICES, LLC; SOLAR GUYS, INC.; and ALPHA
TECHNOLOGIES SERVICES, INC., Defendants. ALPHA TECHNOLOGIES
SERVICES, INC., Cross-Claimant, v. SOLAR GUYS, INC.,
Cross-Defendant, Case No. 5:17-CV-628-FL (E.D. N.C.), Judge Louise
W. Flanagan of the U.S. District Court for the Eastern District of
North Carolina, Western Division, denied the Plaintiffs' motion to
equitably toll the statute of limitations under the Fair Labor
Standards Act ("FLSA").
The Plaintiffs, claiming they have been misclassified as
independent contractors as opposed to employees, commenced the
action on Dec. 20, 2017, alleging violations of the FLSA and North
Carolina Wage and Hour Act. On June 19, 2018, they filed motion
requesting the court conditionally certify two FLSA collective
actions and requesting permission to share notice of the collective
actions, in part, through public Facebook posts because the
Plaintiffs believed the Defendants might not have complete contact
information for the putative class members.
Thereafter, the parties reached an agreement concerning the
Plaintiffs' motion, as reflected in the Defendants' joint response
and conditional consent to the Plaintiffs' motion for conditional
certification.
On Nov. 27, 2018, with the consent of all parties, the Court
conditionally certified the following two collectives:
1. A collective consisting of all similarly situated
individuals engaged in the construction of IS46 through Defendant
East Carolina Commercial Services individually or jointly with one
or more of the other Defendants who were required to work in excess
of forty hours per week and were not paid the appropriate overtime
rate for hours worked over 40 in a workweek, and who timely file
(or have already filed) a written consent to be a party to this
action pursuant to 29 U.S.C. Section 216(b); and
2. A collective consisting of all similarly situated
individuals engaged in the construction of IS46 through Defendant
East Carolina Commercial Services individually or jointly with one
or more of the other Defendants who were required to purchase and
provide their own hard hats, vests, boots, safety glasses and/or
gloves and were not reimbursed for those purchases or paid minimum
wage for their first week of work, and who timely file (or have
already filed) a written consent to be a party to this action
pursuant to 29 U.S.C. Section 216(b).
Also, with the consent of all the parties, the Court directed the
parties to meet and confer to attempt to agree on whether any
additional means of distribution of the notice to the potential
opt-in Plaintiffs is necessa ry and to report back to the Court
regarding the outcome of the conference. The Defendants were
further directed to provide to the Plaintiffs, by Dec. 11, 2018,
available information regarding the full names, dates of
employments, job titles, last known addresses, e-mail addresses,
telephone numbers, and dates of birth of all putative members of
the collectives "to assist the Plaintiffs in the distribution of
the approved notice."
The Court set a deadline of March 27, 2019, for joinder of the
opt-in Plaintiffs filing consent to join forms, further providing
that upon timely application by the Plaintiffs and a showing that
the Defendants have failed to provide personal contact information
for a significant number of the members of the proposed
collectives, the Court may extend the opt-in period by up to two
months.
On Jan. 25, 2019, the parties filed joint report and motion to
modify the discovery plan, informing the Court that Defendants
Cesar Mendoza and East Carolina Commercial Services ("ECCS")
produced to the Plaintiffs all available W-9 and 1099 tax documents
containing approximately 270 addresses for potential members of the
FLSA collectives and that no other contact information is in any of
the Defendants' custody or control.
In the same filing, the Plaintiffs informed the court that the FLSA
collectives may include as many as 770 people, and that they have
not received phone numbers, e-mail addresses, or dates of birth for
anyone. The parties informed the court that based on this
information, the parties agreed additional means of distributing
notice were appropriate. They additionally sought an extension of
the deadline to May 27, 2019, for opt-in plaintiffs to file consent
to join forms. The Court granted the parties' motion.
The Plaintiffs filed the instant motion on Feb. 15, 2019, arguing
that the Defendants have engaged in wrongful conduct warranting the
tolling of the statute of limitations under the FLSA for the
potential opt-in Plaintiffs. The Defendants filed response in
opposition in the following groupings: 1) Defendants Solar Guys,
Inc. and Jorge Ramos; 2) Defendant ATS, and 3) Defendants ECCS and
Cesar Mendoza. The Plaintiffs filed omnibus reply.
The Plaintiffs allege that the Defendants have engaged in three
instances of wrongful conduct that have prevented the majority of
potential collective actions members from filing consent to join
forms to join the conditionally certified collectives: 1)
classifying workers and potential opt-in Plaintiffs jointly
employed by the Defendants as non-employees; 2) failing to collect
and maintain contact information of the relevant workers; 3)
misleading the Plaintiffs' counsel about the Defendants' ability to
provide adequate contact information.
Judge Flanagan finds that although the Plaintiffs argue that they
only were aware that the Defendants did not maintain addresses or
dates of birth for potential opt-in Plaintiffs and that they did
not learn until December 2018 that no one was going to produce any
phone numbers or e-mail addresses, the acknowledgments undercut the
Plaintiffs' current assertions that the Defendants have misled
them.
Additionally, the cases cited by the Plaintiffs regarding this
issue are inapposite where in those cases defendants refused to
answer discovery or to make any production of information within
their possession, custody, or control. The Plaintiffs do not
dispute that they have received from the Defendants those documents
that the Defendants are able to produce.
Finally, the Plaintiffs heavily rely on cases where the courts
found dispositive that the defendants in those cases had failed to
post the required FLSA notice at the jobsites. They expressly
allege in operative complaint that upon information and belief, the
Defendants disclosed to them and their similarly situated
co-workers that the promised wage for the work they were to perform
would be at least 1.5 times the regular hourly rate, by posting the
information in the mobile office and/or other locations on the
jobsite. They do not address the posting of the required FLSA
notice. It is not until the Plaintiffs' reply that they note
inconclusive evidence on record regarding the presence, or lack
thereof, regarding the required FLSA notice.
The Plaintiffs argue regardless of whether further discovery
reveals conclusively whether there was a poster at this jobsite,
the Fourth Circuit's reasoning for extending equitable tolling for
failure to postthe FLSA notice applies equally in the case, arguing
both the likely absence of the FLSA poster and the Defendants'
wrongful conduct of informing potential opt-ins that they were not
covered by the FLSA mean tolling is warranted.
Judge Flanagan has addressed and rejected the Plaintiffs'argument
regarding the Defendants' alleged wrongful conduct of
misclassifying the Plaintiffs. He declines to grant relief, relief
that is to be granted "sparingly," based on the Plaintiffs'
argument as to the "likely absence of the FLSA poster" where they
allege the Defendants did so post and where the Plaintiffs did not
move to equitably toll the FLSA statute of limitations based on
this ground. He concludes that the Plaintiffs have failed to meet
their burden that equitable tolling of the FLSA statute of
limitations is warranted in the present case at this time.
Based on the foregoing, he denied the Plaintiffs' motion to
equitably toll the FLSA statue of limitations.
A full-text copy of the Court's Aug. 6, 2019 Order is available at
https://is.gd/ZBMHt1 from Leagle.com.
Pedro Rodriguez Martinez, Mateo Hernandez Lopez & Elmer Menjivar
Argeta, on behalf of themselves and all others similarly situated,
Plaintiffs, represented by Carol L. Brooke -- carol@ncjustice.org
-- North Carolina Justice Center, Dhamian A. Blue --
dab@bluellp.com -- Blue Stephens & Fellers LLP & Clermont Fraser
Ripley -- clermont@ncjustice.org -- North Carolina Justice Center.
Cesar Mendoza & East Carolina Commercial Services, LLC, Defendants,
represented by R. Daniel Boyce -- dboyce@nexsenpruet.com -- Nexsen
Pruet, PLLC & William H. Floyd, III -- wfloyd@nexsenpruet.com --
Nexsen Pruet, LLC.
Alpha Technologies Services, Inc, Defendant, represented by Amie F.
Carmack -- acarmack@morningstarlawgroup.com -- Morningstar Law
Group, Matthew J. Segal, P.K. Schrieffer LLP, Sarah C. Johnson,
Pacifica Law Group LLP, Harrison Mann Gates, Morningstar Law Group,
John T. Kivus, Morningstar Law Group & Shannon R. Joseph --
sjoseph@morningstarlawgroup.com -- Morningstar Law Group.
Solar Guys, Inc. & Jorge Ramos, Defendants, represented by Kathryn
F. Abernethy, The Noble Law Firm, PLLC.
Alpha Technologies Services, Inc, Cross Claimant, represented by
Amie F. Carmack, Morningstar Law Group, Matthew J. Segal, P.K.
Schrieffer LLP, Sarah C. Johnson, Pacifica Law Group LLP, Harrison
Mann Gates, Morningstar Law Group, John T. Kivus, Morningstar Law
Group & Shannon R. Joseph, Morningstar Law Group.
Solar Guys, Inc., Cross Defendant, represented by Kathryn F.
Abernethy, The Noble Law Firm, PLLC.
AMAZON.COM SERVICES: Court OKs $32.8K Settlement in Christeson
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The United States District Court for the District of Kansas issued
a Memorandum and Order granting Plaintiffs' Unopposed Motion For
Approval Of Settlement Agreement in the case captioned WYATT
CHRISTESON AND PATRICK J. HILLS Plaintiffs, v. AMAZON.COM SERVICES,
INC., Defendant. Civil Action No. 18-2043-KHV. (D. Kan.).
Wyatt Christeson brings suit against Amazon.com Services, Inc. to
recover unpaid wages, liquidated damages, punitive damages, costs
and attorney fees under the Fair Labor Standards Act (FLSA). The
named plaintiff initially filed this lawsuit as a collective action
and the Court conditionally certified a class consisting of
Christeson and seven other IT Support Engineers who worked for
Amazon.
Under the settlement agreement, Amazon will pay a total of
$32,853.16. Of that amount, Amazon will pay $6,553.36 to Christeson
and $7,341.28 to Hills. The parties calculated these figures by
awarding plaintiffs each $250.00 for any de minimis time worked,
plus approximately $394.00 for each instance that plaintiffs
recorded approximately 40, 49 or 55 hours in a work week. In
exchange, plaintiffs will release the FLSA claims which are
specifically set forth in the complaint.
The rest of the settlement fund ($18,958.52) will go to plaintiffs'
attorney and to cover costs and expenses. Plaintiffs request
$15,000.00 for attorney fees and $3,958.52 for costs and expenses.
When employees file suit against their employer under the FLSA, the
parties must present any proposed settlement to the Court for
review and a determination whether the settlement is fair and
reasonable. The provisions of the FLSA are not subject to private
negotiation between employers and employees. To allow such waivers
would nullify the effectiveness of the Act. Requiring the Court to
approve such settlements thus effectuates the purpose of the FLSA
to protect certain groups of the population from substandard wages
and excessive hours due to the unequal bargaining power as between
employer and employee, which may endanger national health and
well-being and the free flow of goods in interstate commerce.
To approve an FLSA settlement, the Court must find that (1) the
litigation involves a bona fide dispute (2) the proposed settlement
is fair and equitable to all parties concerned and (3) the proposed
settlement contains an award of reasonable attorney fees.
Bona Fide Dispute
In its previous orders, the Court found a bona fide dispute, so now
it must only determine whether the settlement is fair and
reasonable and whether the requested attorney fees and costs are
reasonable
Fair And Reasonable
To be fair and reasonable, an FLSA settlement must be reasonable to
the employees and must not frustrate FLSA policies. When
determining the reasonableness of a settlement, the framework for
evaluating the fairness of a class action settlement is
instructive.
The Tenth Circuit considers the following factors when deciding
whether to approve a class action settlement under Rule 23(e), Fed.
R. Civ. P.: (1) whether the parties fairly and honestly negotiated
the settlement; (2) whether serious questions of law and fact exist
which place the ultimate outcome of the litigation in doubt (3)
whether the value of an immediate recovery outweighs the mere
possibility of future relief after protracted litigation and (4)
the judgment of the parties that the settlement is fair and
reasonable. In its previous order, the Court determined that these
four factors weigh in favor of approving the settlement.
That conclusion still stands.
In addition to these factors, the Court must also ensure that the
settlement does not undermine the purpose of the FLSA to protect
employees' rights from employers who generally wield superior
bargaining power. To do so, the Court considers the following
factors: (1) presence of employees situated similarly to plaintiff
(2) a likelihood that plaintiffs' circumstances will recur and (3)
a history of FLSA non-compliance by defendant or others in
defendant's industry.
The record reflects that the settlement is consistent with the
purpose of the FLSA. Although the record indicates that other
employees are situated similarly to plaintiffs, those individuals
are free to pursue their own claims in separate actions. In
addition, the record suggests no reason why similar conduct is
likely to recur. Finally, the record does not reflect a history of
FLSA non-compliance by defendant or others in its industry.
The Court therefore finds that the settlement is fair and
reasonable.
A full-text copy of the District Court's August 28, 2019 Memorandum
and Order is available at https://tinyurl.com/yx9skd5q from
Leagle.com.
Wyatt Christeson, individually and on behalf of a class of similar
employees & Patrick J. Hills, Plaintiffs, represented by Jeffrey S.
Kratofil -- jeff@mccauleyroach.com -- McCauley & Roach, LLC, Morgan
L. Roach -- morgan@mccauleyroach.com -- McCauley & Roach, LLC &
Nicholas S. Ruble, McCauley & Roach, LLC, 527 W 39th St., Suite
200, Kansas City, MO 64111
Amazon.com Services, Inc., Defendant, represented by Daniel B.
Boatright -- dboatright@littler.com -- Littler Mendelson, PC,
Stefanie R. Moll -- stefanie.moll@morganlewis.com -- Morgan, Lewis
& Bockius, LLP, pro hac vice & Thomas Cullen Wallace --
cullen.wallace@morganlewis.com -- Morgan, Lewis & Bockius, LLP, pro
hac vice.
AMAZON.COMKSDC: Renewed Bid for Christeson Deal Approval Overruled
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In the case, WYATT CHRISTESON, individually and on behalf of a
class of similarly situated employees, Plaintiff, v.
AMAZON.COM.KSDC, LLC, Defendant, Civil Action No. 18-2043-KHV (D.
Kan.), Judge Kathryn H. Vratil of the U.S. District Court for the
District of Kansas overruled the Plaintiff's Renewed Unopposed
Motion For Approval Of Parties' Settlement Agreement And Release
And Notice To Class Members.
After the parties informed the Court on Aug. 6, 2018 that they had
reached a settlement, they filed a series of unsuccessful motions
for approval of a settlement agreement, attorney's fees and costs
and a service award. The matter comes before the Court on the
third try: the Plaintiff's Renewed Unopposed Motion For Approval Of
Parties' Settlement Agreement And Release And Notice To Class
Members filed May 31, 2019.
The Court has previously conditionally certified a collective
action consisting of "Christeson and seven other IT Support
Engineers who worked for Amazon at any time between Jan. 25, 2015
and March 31, 2018.
The Plaintiff asserts that the parties have modeled the proposed
notice on samples provided by the Federal Judicial Center and that
courts routinely approve similar notices. Because the Court cannot
preliminarily approve the amended settlement agreement, review of
the proposed notice is premature.
In its previous orders, the Court found that the litigation
involves a bona fide dispute. In addition, it found no evidence
that the Plaintiff has used the class action for unfair personal
gain. Thus, the remaining issues are whether the amended
settlement agreement is fair and equitable to all parties concerned
and whether the proposed attorney's fee and service awards are
reasonable.
Although the parties have substantially addressed the Court's
concerns, Judge Vratil finds that the proposed release still
improperly exceeds the allegations in the complaint. The parties
assert that the settlement agreement no longer releases state or
local wage and hour laws, ordinances, or any other claims beyond
the FLSA claim specifically pled by the Plaintiff in his
c]omplaint. This statement is flat-out misleading. The proposed
settlement agreement states that the participating Plaintiffs
release any and all claims arising under the FLSA against Amazon.
The release is not limited to the FLSA claims which the Plaintiff
specifically pled in his complaint. The Judge cannot preliminarily
approve the proposed settlement agreement because the parties have
yet again failed to appropriately narrow the release of claims so
that it tracks the claims asserted in the complaint.
Finally, under the amended settlement agreement, the Plaintiff has
reduced the attorney's fee request from $35,000 to $20,000 and the
service award from $5,000 to $2,500. The Defendant will pay up to
$22,467.62 in attorney's fees and costs and up to $2,500 for a
service award to the Plaintiff, and the Defendant has reserved the
right to challenge any such award.
The Judge holds she will make a final determination as to the
appropriate amount of the service award and attorney's fees and
costs when the parties file for final settlement approval.
Based on the foregoing, Judge Vratil overruled the Plaintiff's
Renewed Unopposed Motion For Approval Of Parties' Settlement
Agreement And Release And Notice To Class Members.
A full-text copy of the Court's Aug. 6, 2019 Memorandum and Order
is available at https://is.gd/iDOaxx from Leagle.com.
Wyatt Christeson, individually and on behalf of a class of similar
employees, Plaintiff,
represented by Jeffrey S. Kratofil -- jeff@mccauleyroach.com --
McCauley & Roach, LLC & Morgan L. Roach --
morgan@mccauleyroach.com
-- McCauley & Roach, LLC.
Amazon.com.ksdc, LLC, Defendant, represented by Daniel B.
Boatright
-- dboatright@littler.com -- Littler Mendelson, PC, Stefanie R.
Moll -- stefanie.moll@morganlewis.com -- Morgan, Lewis & Bockius,
LLP, pro hac vice & Thomas Cullen Wallace --
cullen.wallace@morganlewis.com -- Morgan, Lewis & Bockius, LLP,
pro
hac vice.
APEX SYSTEMS: Removes Ratcliffe Suit to S.D. California
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Apex Systems, LLC removes case captioned BERNICE RATCLIFFE,
individually and on behalf of other members of the general public
similarly situated, the Plaintiff, vs. APEX SYSTEMS, LLC, a
Virginia limited liability company; and DOES 1 through 100,
inclusive, the Defendant, Case No. 19CV1688 WQH MDD, from the
Superior Court for the County of San Diego to the United States
District Court for the Southern District of California on Sept. 4,
2019. The Southern District of California Court Clerk assigned Case
No. 3:19-cv-01688-WQH-MDD to the proceeding.
The complaint alleges the Defendant failed to pay meal period
premiums and rest period premiums; failed to pay minimum wages; and
failed to pay final wages pursuant to the California Labor Code.
Apex Systems is an IT staffing and workforce solutions firm.[BN]
Attorneys for the Defendants are:
Mark J. Oayne, Esq.
Lauren E. Grochow, Esq.
TROUTMAN SANDERS LLP
5 Park Plaza, Suite 1400
Irvine, CA 92614-2545
Telephone: 949.622.2700
Facsimile: 949.622.2739
E-mail: mark.payne@troutman.com
lauren.grochow@troutman.com
APPLE INC: Court Dismisses Processor Suit Without Leave to Amend
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In the case, IN RE APPLE PROCESSOR LITIGATION, Case No.
5:18-cv-00147-EJD (N.D. Cal.), Judge Edward J. Davila of the U.S.
District Court for the Northern District of California, San Jose
Division, granted Apple's motion to dismiss the Plaintiffs' second
consolidated amended complaint ("SCAC") without leave to amend.
Defendant Apple is a business incorporated in Delaware with a
principal place of business in Sunnyvale, California. Apple
designs, manufactures, distributes, and sells products such as
laptops, desktop computers, iDevices, and other computing devices
that contain processors.
The putative class action Plaintiffs are purchasers or lessors of
certain Apple products that each contain a central processing unit
("CPU"), which the Plaintiffs allege suffers from a design defect
that allows unauthorized third-parties to access sensitive user
data.
Plaintiffs Jennifer Abrams (CA), Anthony Bartling (NH), Robert
Giraldi (NY), and Jacqueline Olson (NY), who, on behalf of
themselves and all others similarly situated, allege upon personal
knowledge as to their own acts and upon information and belief as
to the remaining matters, that certain Apple products such as
iPhones, iPads, and the Apple TV all contain a central processing
unit that is defective. They allege that they have been harmed by
Apple's attempts to mitigate the alleged design defect through
software updates 11.2 and 11.2.2 have severely degraded the
processor performance in their iDevices and renders their iDevices
less valuable.
The Plaintiffs bring their class action pursuant to Federal Rule of
Civil Procedure 23 and seek to represent a class that consists of
all persons in the United States who purchased or leased from Apple
and/or its authorized retailer sellers one or more iPhones, iPads,
Apple TVs, or other products containing processors designed or
modified by Apple, at any time since Jan. 1, 2010.
They also seek to represent three subclasses: The "California
Subclass," the "New Hampshire Subclass," and the "New York
Subclass." These classes are comprised of members who purchased
such iDevices within their respected states.
The Plaintiffs bring the lawsuit against Apple alleging that they
paid more for their iDevices than they were worth because Apple
knowingly omitted the defect; the value of the Plaintiffs' products
has diminished; and Apple's attempts to mitigate the defects with
patches through software updates materially slowed down the
performance of their iDevices.
On June 8, 2018, the Plaintiffs filed consolidated amended
complaint against Apple alleging 16 causes of action. On Aug. 7,
2018, Apple filed a motion to dismiss, which the court later
granted with leave to amend. In granting Apple's motion to
dismiss, the Court determined that the Plaintiffs had not
established standing and therefore the Court did not address the
substance of the claims. The Plaintiffs could neither show that a
named Plaintiff had personally suffered from slower performance,
nor a universal injury. At that time, the Plaintiffs had not even
alleged they personally downloaded the patches they alleged caused
the degrading performance. Additionally, the Plaintiffs did not
sufficiently allege that their personal iDevices suffered any
actual diminution in value.
The Plaintiffs have since amended their complaint by adding facts
in support of their standing arguments while also narrowing their
claims down to seven. They seek an order enjoining Apple from
continuing and maintaining its alleged violations. For the class,
the Plaintiffs seek certification, and damages -- including
actual, statutory, punitive, and/or civil penalties. They also
request costs and attorney's fees.
Apple moves to dismiss the Plaintiffs' SCAC for lack of sufficient
facts in support of standing or any cause of action. It moves to
dismiss all of the Plaintiffs' claims alleged in their SCAC on
Article III standing grounds, arguing they have not remedied their
FCAC and still lack a showing that any named Plaintiff has suffered
an injury-in-fact. Apple also moves to dismiss each of the
Plaintiffs' substantive claims for failure to state a claim upon
which relief can be granted.
Because Article III standing is a threshold jurisdictional
question, Judge Davila addresses Apple's 12(b)(1) motion prior to
analyzing the substance of the claims. He finds that the
Plaintiffs have not met the burden in establishing injury-in-fact
based on their performance degradation argument. The Plaintiffs'
second assertion of injury is based on an economic loss theory that
their phones have lost value and that they paid too much for them
because Apple omitted the vulnerabilities from the public.
The Judge also finds that although the Plaintiffs do add facts that
Apple's "speculative execution" and "out-of-order execution"
optimization techniques are unique to Apple and create a situation
in which iDevices may be more vulnerable than devices that do not
use these techniques, it is unclear whether there are any phones or
similar devices that are not subject to the same vulnerabilities.
Thus, it is unclear whether there are smartphones that are not
affected by Meltdown or Spectre. In sum, the Plaintiffs have not
established standing. Accordingly, the Judge need not address the
substantive claims.
For the foregoing reasons, Judge Davila granted the Defendant's
motion to dismiss without leave to amend.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/al2lLe from Leagle.com.
Anthony Bartling & Jacqueline N. Olson, Plaintiffs, represented
by Gregory Nespole -- gmn@whafh.com -- Wolf Haldenstein Adler
Freeman & Herz, Janine Lee Pollack -- pollack@whafh.com -- Wolf
Haldenstein Adler Freeman & Herz LLP, pro hac vice, Marisa C.
Livesay -- livesay@whafh.com -- Wolf Haldenstein Adler Freeman &
Herz LLP, Randall Scott Newman -- newman@whafh.com -- Wolf
Haldenstein Adler Freeman & Herz LLP & Rachele R. Rickert --
rickert@whafh.com -- Wolf Haldenstein Adler Freeman & Herz LLP.
Robert Giraldi, Plaintiff, represented by Aidan Chowning Poppler
-- cpoppler@bermantabacco.com -- Berman Tabacco, Christian Levis,
Lowey Dannenberg, P.C., Lee Lefkowitz, Lowey Dannenberg, P.C.,
Matthew Acocella, Lowey Dannenberg, P.C., Matthew David-Craig
Pearson -- mpearson@bermantabacco.com -- Berman Tabacco, Sarah
Khorasanee McGrath -- skmcgrath@bermantabacco.com -- Berman
Tabacco, Vincent Briganti, Lowey Dannenberg, P.C. & Todd Anthony
Seaver -- tseaver@bermantabacco.com -- Berman Tabacco.
Apple Inc., Defendant, represented by Matthew Rawlinson --
matt.rawlinson@lw.com -- Latham & Watkins LLP, Kathleen P. Lally
-- kathleen.lally@lw.com -- Latham & Watkins LLP, pro hac vice,
Mark S. Mester -- mark.mester@lw.com -- Latham & Watkins LLP, pro
hac vice, Michael H. Rubin -- michael.rubin@lw.com -- Latham &
Watkins LLP & Reuben J. Stob -- reuben.stob@lw.com -- Latham and
Watkins LLP.
APPLIED UNDERWRITERS: Obtains Favorable Ruling in Class Action
--------------------------------------------------------------
Michael Wolgin, Esq. -- mwolgin@carltonfields.com -- of Carlton
Fields, in an article for The National Law Review, reports that the
law firm has been tracking certain class actions filed against
Applied Underwriters, Inc. and Applied Risk Services, Inc. alleging
that the companies fraudulently marketed and sold workers'
compensation insurance programs to California employers in
violation of state and federal law. The case involves a disputed
Reinsurance Participation Agreement used to control worker's
compensation rates. As previously reported, on January 29, 2019,
the court denied class certification, holding that plaintiffs
failed to demonstrate that a class action would be "superior" to
individual actions, as required by Federal Rule 23(b)(3).
Subsequent to that ruling, plaintiffs requested a status
conference, which the court granted. The conference addressed a
number of issues, including whether one of the plaintiffs could
file a renewed motion for class certification based on a more
limited proposed class, whether plaintiffs could communicate with
putative class members, and whether the court would set a
settlement conference. The new proposed class "would consist of all
California participants in defendants' insurance programs that paid
more under defendants' Reinsurance Participation Agreement than
they would have under guaranteed cost workers' compensation
insurance policies issued by California Insurance Company." Class
certification would be sought only on the plaintiff's claim "under
the unlawful prong of California's Unfair Competition Law."
The court denied the requests for a renewed motion for class
certification and for leave to communicate with putative class
members. The court noted that the relevant plaintiff failed to
provide "the court with any explanation for why it could not have
pursued this narrowed class definition in the initial motion for
class certification." The court observed that the plaintiffs were
seeking certification of essentially the same class in a separate
New York proceeding. The court also held that the proposed narrower
class still would "not resolve the court's concerns identified in
the prior order denying class certification." The court did decide
to consolidate for trial the related cases before the court, and
further ordered the cases to the court's Voluntary Dispute
Resolution Program.
Shasta Linen Supply, Inc. v. Applied Underwriters, Inc., Case No.
2:16-cv-01211-WBS-AC (USDC E.D. Cal. Apr. 17, 2019). [GN]
BANDWIDTH.COM CLEC: Hanks Sues over Unsolicited Phone Calls
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KIM HANKS, individually and on behalf of all others similarly
situated, the Plaintiff, vs. BANDWIDTH.COM CLEC, LLC and DOES 1
through 10, inclusive, and each of them, the Defendant, Case No.
2:19-at-00823 (E.D. Cal., Sept. 5, 2019), contends that the
Defendant promotes and markets its merchandise, in part, by placing
unsolicited telephone calls to phone users, in violation of the
Telephone Consumer Protection Act. The Plaintiff seeks damages and
any other available legal or equitable remedies resulting from the
illegal actions of Defendant, in negligently, knowingly, and/or
willfully contacting Plaintiff on Plaintiff's home telephone.
Defendant's calls constituted calls that were not for emergency
purposes as defined by 47 U.S.C. section 227(b)(1)(A). Further,
Plaintiff's home telephone number ending in -6552 has been on the
National Do-Not-Call Registry since at least June 8, 2004 The
Defendant placed multiple calls soliciting its business to
Plaintiff on his cellular telephone ending in -0547 in or around
January of 2019, the lawsuit says.[BN]
Attorneys for the Plaintiff are:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Telephone: (323) 306-4234
Facsimile: (866)633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
BARKMAN HONEY: Faces Wingate Suit in District of Kansas
-------------------------------------------------------
A class action lawsuit has been filed against Barkman Honey, LLC,
et al. The case is captioned as Dave Wingate, On Behalf of Himself
and All Others Similarly Situated, the Plaintiff, vs. Barkman
Honey, LLC, a Domestic Corporation; and Truesource Honey, LLC, a
Foreign Corporation, the Defendants, Case No. 5:19-cv-04074-SAC-ADM
(D. Kan., Aug. 27, 2019). The suit alleges fraud related violation.
The case is assigned to the Hon. Judge Sam A. Crow.
Barkman Honey provides True Source Certified (TM) honey.[BN]
Attorneys for the Plaintiff are:
Kent A. Heitzinger, Esq.
THE LAW OFFICES OF KENT A. HEITZINGER
1056 Gage Street, Suite 200
Winnetka, IL 60093
Telephone: (847) 446-2430
Facsimile: (847) 446-2439
E-mail: heitzinger.law@gmail.com
- and -
Terrence Buehler, Esq.
THE LAW OFFICE OF TERRENCE BUEHLER
1 South Wacker Drive, Suite 3140
Chicago, IL 60606
Telephone: (312) 371-4385
E-mail: tbuehler@tbuehlerlaw.com
- and -
James Phillip Gragson, Esq.
HENSON, HUTTON, MUDRICK,
GRAGSON & VOGELSBERG, LLP
3649 SW Burlingame Road, Suite 200
Topeka, KS 66611-2155
Telephone: (785) 232-2200
E-mail: jpgragson@hhmglaw.com
BIMBO BAKERIES: Oddo, et al. Seek to Certify Class of Sales Reps
----------------------------------------------------------------
In the class action lawsuit styled as CHRISTOPHER ODDO, et al., on
behalf of themselves and those similarly situated, the Plaintiffs,
vs. BIMBO BAKERIES U.S.A. INC., the Defendant, Case No.
2:17-cv-04775-PD (E.D. Pa.), the Plaintiffs ask the Court for an
order conditionally certifying a class of:
"individuals who worked as Route Sales Representatives (RSRs)
and drove a Bimbo Small Vehicle (i.e., a Bimbo truck with a
Gross Vehicle Weight Rating of 10,000 pounds or less) during at
least one workweek during the Relevant Period (from September
11, 2014 through the present."
Christopher Oddo, Philip Brucato, and Michael Lennon assert that
Bimbo Bakeries U.S.A., Inc. violated the FLSA by failing to pay
them and other similarly situated individuals overtime wages.
The Plaintiffs are current and former RSRs, which Bimbo
alternatively refers to as "Route Sales Professionals".
Bimbo Bakeries is the American corporate arm of the Mexican
multinational bakery product manufacturing company Grupo Bimbo. It
is the largest bakery company in the United States.[CC]
Attorneys for the Plaintiffs are:
Matthew D. Miller, Esq.
Joshua S. Boyette, Esq.
Justin L. Swidler, Esq.
Richard S. Swartz, Esq.
SWARTZ SWIDLER LLC
1101 Kings Highway North. Ste. 402
Cherry Hill NJ, 08034
Telephone: (856) 685-7420
E-mail: mmiller@swartz-legal.com
BIRDEYE INC: J. Hindi Suit Transferred to N.D. Cal.
---------------------------------------------------
The United States District Court for the Southern District of
Florida issued an Order granting in part and denying in part
Defendant's Motion to Dismiss in the case captioned JAMIL HINDI,
individually and on behalf of all others similarly situated,
Plaintiff, v. BIRDEYE, INC., Defendant. Case No.
19-cv-61201-BLOOM/Valle. (S.D. Fla.)
This cause is before the Court upon Defendant BirdEye, Inc.'s
Motion to Dismiss First Amended Complaint and/or to Stay Action.
Plaintiff filed a First Amended Class Action Complaint against
Defendant for a violation of the Telephone Consumer Protection Act
(TCPA). Plaintiff therefore brings this putative class action on
behalf of the class of all persons within the United States who,
within the four years prior to the filing of this Complaint, were
sent a text message using the same type of equipment used to text
message Plaintiff, from Defendant or anyone on Defendant's behalf,
to said person's cellular telephone number.
LEGAL STANDARD
Section 1404(a) of Title 28 of the United States Code provides in
relevant part, for the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action
to any other district or division where it might have been
brought.
In considering a motion to dismiss for forum non conveniens, as
with a motion to dismiss for improper venue under Federal Rule of
Civil Procedure 12(b)(3), a court must accept the facts in a
plaintiff's complaint as true, to the extent they are
uncontroverted by the defendants' affidavits.
In analyzing the application of a forum-selection clause, a court
must determine whether the clause is valid, whether the claim at
issue falls within the scope of the clause by looking to the
language of the clause itself and whether the clause is mandatory
or permissive. If a court concludes that a valid and enforceable
forum-selection clause exists, it must conduct a forum non
conveniens analysis to determine whether the case should be
transferred.
Defendant argues that the Court should dismiss Plaintiff's Amended
Complaint because of the parties' valid forum-selection clause.
Alternatively, Defendant requests that this Court transfer this
action to the Northern District of California, pursuant to 28
U.S.C. Section 1406(a), or Section 1404(a), and the parties' agreed
to forum-selection clause. Plaintiff, on the other hand, contends
that the forum-selection clause does not apply to his standalone
TCPA action.
Validity of the Forum-Selection Clause
First, the Court must determine whether the forum-selection clause
at issue is valid. Plaintiff fails to assert, let alone present a
strong showing, that the forum-selection clause is invalid.
Plaintiff does not allege that the forum-selection clause was the
product of fraudulent inducement or was improperly included in the
customer agreement to deprive him of some right or ability.
Further, Plaintiff does not dispute the existence of the customer
agreement, its authenticity, or the authenticity of his signature.
As such, the Court concludes that Plaintiff has failed to satisfy
his burden of presenting any extraordinary circumstances preventing
the clause's application. The forum-selection clause is, therefore,
valid.
Scope of the Forum-Selection Clause
Next, the Court must determine whether the TCPA claim at issue is
within the scope of the parties' forum-selection clause. Thus, to
determine if a forum-selection clause encompasses a particular type
of claim, we look to its language.
Here, the forum-selection clause states, The exclusive jurisdiction
and venue of any action with respect to the subject matter of these
Terms will be the state and federal courts located in Santa Clara,
California, and each of the parties hereto waives any objection to
jurisdiction and venue in such courts. As such, the Court must
determine whether Plaintiff's TCPA claim constitutes an action with
respect to the subject matter of the parties' customer agreement.
Plaintiff argues that the forum-selection clause does not apply to
the instant TCPA claim.
Alternatively, Plaintiff asserts that the Court should not transfer
or dismiss the case because the clause is, at best, ambiguous with
regard to whether the TCPA claim falls within the forum-selection
clause's scope. Conversely, Defendant contends that the parties had
a business relationship memorialized by the signed customer
agreement, which includes a provision informing Plaintiff about how
his personal information might be used, and the referral text
message at issue was sent to Plaintiff as a result of this customer
relationship.
Therefore, Defendant argues, the alleged TCPA violation arose out
of the customer relationship and is subject to the Terms and
Conditions.
The plain language of the forum-selection clause indicates that it
governs any action concerning the terms of the parties' customer
agreement. The agreement's terms and conditions contain two
provisions that explicitly dictate Defendant's collection and use
of customers' personal information, including telephone numbers.
Through the parties' business relationship, Plaintiff provided
Defendant with his personal contact information. Moreover, the text
message that allegedly violated the TCPA directly concerned this
business relationship namely, a promotion allowing customers to
earn cash bonuses by referring friends to Defendant's business. It
is through the parties' customer agreement that Defendant was able
to collect and use Plaintiff's telephone number in accordance with
the provisions set forth in the terms and conditions.
Additionally, absent a business relationship between the parties,
Defendant would have no basis to send Plaintiff a message seeking
customer referrals. Thus, Plaintiff's TCPA claim which concerns a
text message received due to the parties' business relationship
established by their customer agreement — plainly stems from the
use of his personal information provided to Defendant pursuant to
the agreed-upon terms and conditions. Given the broad wording of
the forum-selection clause, the Court concludes that Plaintiff's
TCPA claim falls within the scope of any action with respect to the
subject matter of these Terms.
The plain language of the parties' forum-selection clause covers
the instant TCPA claim because it relates to Defendant's collection
and use of Plaintiff's personal information under the customer
agreement, the privacy policy, and the terms and conditions.
Moreover, unlike in Gamble and Ramos, where the unsigned Text
Consent Provisions were separate from the signed agreements, here,
the privacy policy provisions concerning Defendant's use of
customers' phone numbers were included within the agreed-upon
contract.
Therefore, the Court concludes that Plaintiff's TCPA claim falls
within the scope of the forum-selection clause.
Whether the Forum-Selection Clause is Mandatory or Permissive
After determining that the forum-selection clause is valid and
applies to Plaintiff's claims, the Court must then assess whether
the agreed-upon jurisdiction in the forum-selection clause is
mandatory or permissive.
The forum-selection clause at issue states, The exclusive
jurisdiction and venue of any action with respect to the subject
matter of these Terms will be the state and federal courts located
in Santa Clara, California, and each of the parties hereto waives
any objection to jurisdiction and venue in such courts. The term
exclusive is defined as being limited to a particular person,
group, entity, or thing exclusive right. The clause's exclusive
jurisdiction language, clearly indicates that jurisdiction is
limited to, state and federal courts located in Santa Clara,
California. Thus, the plain language of the forum-selection clause
indicates a mandatory clause.
As such, the Court concludes that any claims within the scope of
the forum-selection clause must be brought in the Northern District
of California, rather than the Southern District of Florida.
Forum Non Conveniens Analysis
Finally, if a valid, applicable, mandatory, and enforceable
forum-selection clause exists, the Court must conduct a forum non
conveniens analysis to determine whether the case should be
transferred. When the parties have agreed to a valid
forum-selection clause, a district court should ordinarily transfer
the case to the forum specified in that clause. Only under
extraordinary circumstances unrelated to the convenience of the
parties' should a court decline to enforce a forum-selection
clause. Moreover, a valid forum-selection clause should be given
controlling weight in all but the most exceptional cases.
The existence of a valid forum-selection clause requires a district
court to adjust its forum non conveniens analysis in three ways.
First, the plaintiff's choice of forum merits no weight. Rather, as
the party defying the forum-selection clause, the plaintiff bears
the burden of establishing that transfer to the forum for which the
parties bargained is unwarranted. Second, courts must deem the
private-interest factors to weigh entirely in favor of the
preselected forum. Accordingly, the analysis must only consider
public-interest factors.
Plaintiff has not presented any arguments as to why the Court
should not enforce the agreed-upon forum-selection clause and
transfer the case to the Northern District of California. As such,
Plaintiff has failed to satisfy his burden.
Nevertheless, the Court will also examine whether transfer is
warranted under the modified forum non conveniens analysis. An
alternative forum is adequate if it provides for litigation of the
subject matter of the dispute and potentially offers redress for
plaintiffs' injuries.
Here, there is an adequate alternative forum the Northern District
of California. Plaintiff has already consented to mandatory
jurisdiction over any actions with respect to the subject matter of
the parties' customer agreement in that forum. In addition,
Defendants have stipulated to personal jurisdiction in California
by virtue of their request to transfer. As such, the Northern
District of California is clearly an available adequate alternative
forum for the litigation of Plaintiff's claims.
Ultimately, the public-interest factors favor transfer. First,
Plaintiff provides no support for why this matter should be
litigated in Florida, rather than in California. The terms and
conditions provide, These Terms and any action related thereto will
be governed by the laws of the State of California without regard
to its conflict of laws provisions. Thus, transfer to the Northern
District of California would eliminate any potential problems
related to the application of foreign law. Further, this is not a
localized controversy where it is particularly important to have
the lawsuit resolved in Florida.
Therefore, the Court concludes that the forum non conveniens
analysis favors transferring this action because California is an
adequate and available alternative forum and the public-interest
factors weigh in favor of this pre-selected forum.
Accordingly, the Defendant's Motion to Dismiss First Amended
Complaint and/or to Stay Action is granted in part and denied in
part. The Court directed the Clerk to transfer the case to the
United States District Court for the Northern District of
California.
A full-text copy of the District Court's August 28, 2019 Order is
available at https://tinyurl.com/yytfcqd5 from Leagle.com.
Jamil Hindi, individually and on behalf of all others similarly
situated, Plaintiff, represented by Manuel Santiago Hiraldo --
mhiraldo@hiraldolaw.com -- Hiraldo P.A. & Ignacio Javier Hiraldo,
IJH Law, 78 SW 7th Street, Miami, FL 33130
BirdEye, Inc., Defendant, represented by Matthew John Langley, US
Attorney's Office.
BMW: Takes Regency Funding to High Court Over Airbag Payouts
------------------------------------------------------------
Elizabeth Byrne, writing for ABC, reports that the company
bankrolling what is expected to be largest class action lawsuit in
Australian history was set to face a legal test in the High Court
on Aug. 13, which could slash its entitlement to a large share of
the compensation offered to former owners of Takata Airbags.
Key points:
-- The company funding the Takata Airbag class action is claiming
25 per cent of the compensation
-- BMW argues the company should not be entitled to a portion of
all claimants' payouts
-- A similar case involving Westpac life insurance will also be
considered by the court
-- The faulty airbags have been blamed for one death in
Australia, along with 20 others and countless injuries worldwide.
A massive class action against car manufacturers including BMW,
Honda, Mazda, Nissan, Subaru and Toyota could involve up to two
million claimants.
The case has been financed by litigation funder Regency Funding,
but BMW is challenging an order made by the New South Wales Supreme
Court requiring anybody receiving a payout from the class action to
hand over 25 per cent of the money to Regency Funding, as
compensation for bankrolling the court case.
Lawyers for the car maker argue the ruling, known as a common fund
order, requires people who benefit from the class action to pay
Regency Funding even if they have not formally joined the case.
They argue such orders are unconstitutional because they amount to
an acquisition on "other than just terms".
A similar Federal Court case involving claimants who have sued
Westpac over allegedly inflated prices for life insurance policies
is also being included in the High Court hearing.
A man holding his mobile phone walks past a Westpac Bank sign in
George street Sydney on January 28 2019.
That case has already made legal history with a joint sitting
between the NSW Court of Appeal and the Federal Court in March this
year when Westpac and BMW first challenged the orders, without
success.
In the Westpac case a company called JustKapital Litigation (JKL)
funded the legal action, which was estimated to cost up to $9
million dollars.
About 80,000 people were believed to have been affected, and a
common fund order entitled JKL to a portion of each payout.
But in submissions to the High Court, lawyers for Westpac pointed
out that in the United States, where the common fund approach
emerged, legal representatives were only entitled to a reasonable
attorney's fee.
Lawyers for the bank argued the Federal Court ruling against
Westpac was out of kilter with the intended use of such a fund.
"The Order imposed a liability on group members . . . and its
immediate and binding effect was to confer on JKL a right to part
of the fruits of group members' interests in any judgment or
settlement," the submissions said.
The High Court documents also pointed out that in the case of the
Westpac challenge only four people had formally joined the class
action.
Out of 200,000 people potentially able to join the action against
BMW, just 33 had joined the case by October 2018, with another 116
expressing interest.
Lawyers for the claimants said common fund orders served an
important role, because they gave those who would otherwise be
denied justice access to the courts.
The funders said the order was not just about a common cost, but a
common benefit.
The Commonwealth, Victoria, Western Australia and Queensland have
all intervened in the case to support the claimants. [GN]
BOX INC: Continues to Defend Securities Class Suit in California
----------------------------------------------------------------
Box, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on September 6, 2019, for the quarterly
period ended July 31, 2019, that the company continues to defend a
purported securities class action filed in the U.S. District Court
for the Northern District of California.
On June 6, 2019, a purported securities class action was filed in
the U.S. District Court for the Northern District of California
naming Box and certain of its officers and directors as defendants.
The complaint purports to bring suit on behalf of shareholders who
purchased or otherwise acquired Box's securities between November
28, 2018 and June 3, 2019.
The complaint purports to allege that defendants made false and
misleading statements about Box's business and prospects in
violation of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and seeks unspecified compensatory damages, fees, and
costs.
Box said, "We believe the claims are without merit and intend to
defend against the lawsuit vigorously. Because the litigation is
in the early stages, we are unable to estimate a reasonably
possible loss or range of loss, if any, that may result from this
matter."
Box, Inc. develops Internet applications software. The Company
operates a content sharing platform that enables users to share,
access, and manage content in the cloud, as well as provides mobile
access, file storage, and online collaboration solutions. Box
serves customers worldwide.
BRIDGEPOINT EDUCATION: Lead Plaintiff & Lead Counsel in Stein Named
-------------------------------------------------------------------
In the case, SHIVA STEIN, Individually and On Behalf of All Others
Similarly Situated, Plaintiff, v. BRIDGEPOINT EDUCATION, INC.;
ANDREW S. CLARK; KEVIN ROYAL; JOSEPH L. D'AMICO; Defendants (S.D.
Cal.), Judge William Q. Hayes of the U.S. District Court for the
Southern District of California granted Stein's Motion for
Appointment as Lead Plaintiff and Approval of Counsel.
On March 8, 2019, Plaintiff Stein filed the Complaint against the
Defendants, bringing claims for violation of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and corresponding Rule
10b-5, based on allegations that the Defendants misrepresented or
omitted facts regarding revenue recording processes, internal
controls, and financial statements.
On May 10, 2019, the Plaintiff filed a motion regarding appointment
of the Lead Plaintiff and the lead counsel.
On June 11, 2019, the Court issued an order to show cause for
failure to effectuate service of the Complaint. In addition, it
denied the motion regarding appointment of lthe Lead Plaintiff and
the lead counsel as premature, with leave to refile after proper
effectuation of service.
On June 17, 2019, the Court granted the parties' joint motion to
deem service effectuated, to relieve the Defendants from responding
to the Complaint, to provide that an amended complaint would be
filed within 60 days of appointment of the Lead Plaintiff and
approval of the lead counsel, and to allow the Plaintiff 45 days to
respond to any motion to dismiss the amended complaint.
In addition, the Court ordered the Plaintiff to refile any motion
regarding appointment of the Lead Plaintiff and the lead counsel on
June 24, 2019. It ordered a response in opposition to the motion
or a statement of non-opposition to be filed in compliance with
Local Rule 7.1(e)(2).
On June 18, 2019, the Plaintiff filed the Motion for Appointment as
Lead Plaintiff and Approval of Counsel with a hearing date of July
22, 2019. On July 12, 2019, the Plaintiff filed a notice of
non-opposition stating that no opposition had been filed by July 8,
2019, 14 days before the noticed hearing date, as required by Local
Rule 7.1(e)(2). The record reflects no further filings.
Judge Hayes finds that the Plaintiff filed the complaint and moved
to be appointed lead counsel. She believes that with her losses of
approximately $28 in connection with her purchase of seven
Bridgepoint shares. No competing motions or opposition have been
filed, and the Judge has no basis for finding that another class
member has a larger stake than the Plaintiff.
The Plaintiff states that her claims are typical of the class
claims because she and the other class members bring claims based
on the same legal theory and arising from the same events;
specifically, that she and the other class members purchased
securities at artificially inflated prices, which fell when it was
disclosed that the Defendants had misrepresented or omitted facts
regarding Bridgepoint. The Judge concludes that the Plaintiff has
established that she satisfies the "typicality" requirement.
He also concludes that the Plaintiff has established that she
satisfies the "adequacy" requirement. The Plaintiff is the
presumptive most adequate Lead Plaintiff in accordance with the
PSLRA. He finds that the Plaintiff states that there is no
antagonism between her interests and the interests of the class,
and that she has a sufficient interest in the outcome of the
litigation. The Plaintiff states that she has retained counsel
experienced in vigorous and efficient prosecution of securities
class actions. She states that she is not aware of any unique
defenses that could be raised to render her inadequate to represent
the class. She states in her declaration that she is willing to
serve as the Lead Plaintiff.
No party has opposed Plaintiff's motion for appointment as the Lead
Plaintiff. The presumption that the Plaintiff is the most adequate
Lead Plaintiff has not been rebutted. The Judge holds that the
Court is not required to assess any additional potential Lead
Plaintiffs. Absent proof that the Lead Plaintiff candidate with
the largest financial interest does not satisfy the requirements of
Rule 23(a), the candidate is "entitled to lead plaintiff status."
The Judge concludes that the Plaintiff is entitled to serve as the
Lead Plaintiff in the action.
The Plaintiff requests that the Court approves her selection of the
Pomerantz law firm as the lead counsel for the class. She states
that Pomerantz is highly experienced in the area of securities
litigation and class actions and has successfully prosecuted
numerous securities litigations and securities fraud class actions
on behalf of investors. The firm has experience litigating issues
similar to the case and it appears that the firm will adequately
represent the interests of all class members. The Judge approves
the Plaintiff's choice of counsel and appoints Pomerantz as the
lead counsel.
Based on the foregoing, Judge Hayes granted Stein's Motion for
Appointment as Lead Plaintiff and Approval of Counsel. He
appointed (i) Stein to serve as the Lead Plaintiff and (iii)
Pomerantz as the lead counsel.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/j7oEmc from Leagle.com.
Shiva Stein, Individually and On Behalf of All Others Similarly
Situated, Plaintiff, represented by Jennifer Pafiti --
jpafiti@pomlaw.com -- Pomerantz LLP & Jeremy A. Lieberman --
jalieberman@pomlaw.com -- Pomerantz LLP.
BUMBLE BEE: Judge Certifies Tuna Antitrust Class Action
-------------------------------------------------------
John Breslin, writing for Legal Newsline, reports that a federal
judge in California has certified three putative classes in
lawsuits against canned tuna manufacturers over alleged violations
of federal anti-trust statutes.
Judge Janis L. Sammartino of the U.S. District Court for the
Southern District of California, who is overseeing the
multi-district litigation, granted class certification to three
different groups of members July 30. The classes are the direct
purchasers, commercial food preparers and end payers.
While the U.S. District Court for the Southern District of
California will preside over all the actions, Sammartino separated
them onto three tracks with different counsel leading each. The
judge ruled that each group satisfied the criteria for class
certification.
The defendants in this case are the three largest U.S. producers of
canned tuna: Bumble Bee Foods LLC; Tri-Union Seafoods LLC, doing
business as Chicken of the Sea; and StarKist Co., along with their
parent companies.
Various legal actions began in 2015, with plaintiffs claiming the
three companies conspired to elevate prices above "competitive
levels in violation of state and federal antitrust laws," the court
decision states.
These actions were brought together as a multi-district litigation
with the plaintiffs based in 27 states and Washington, D.C.
Sammartino initially divided the plaintiffs into ground groups,
those directly buying from the companies and suing individually,
direct buyers as part of a class, indirect buyers such as diners
and supermarkets and consumers. That number was reduced to three as
part of the class certification process.
Included in the allegations against the packaged tuna companies is
that they agreed to "fix certain net and list prices for packaged
tuna . . . to limit promotional activity for packaged tuna, and . .
. to exchange sensitive or confidential business information for
the purpose of facilitating the object of the conspiracy," the
ruling states.
It is claimed the conspiracy began in November 2010 and continued
until December 2016. [GN]
CANNTRUST HOLDINGS: Kalloghlian Launches Securities Class Action
----------------------------------------------------------------
Kalloghlian Professional Corporation ("KPC") on Aug. 12 disclosed
that a proposed class action has been commenced against CannTrust
Holdings Inc. ("CannTrust") (TSX: TRST), certain of its current and
former directors and officers, its auditor KPMG LLC, and certain
underwriters and selling shareholders involved in CannTrust's May
2019 primary market share offering.
KPC will be working together with A. Dimitri Lascaris Law
Professional Corporation as co-counsel in this action.
The proposed class action was commenced in the Ontario Superior
Court of Justice and is brought on behalf of all persons (excluding
certain persons associated with the defendants) that (i) acquired
CannTrust's securities in the May 2019 primary market offering;
and/or (ii) acquired CannTrust's securities in the secondary market
between October 1, 2018 and the close of trading on the TSX on July
23, 2019 (together, the "Class Members").
The action alleges that between October 1, 2018 and July 23, 2019,
CannTrust failed to disclose material information and made
misrepresentations in its public disclosures about, among other
things, the compliance of its facilities with applicable laws and
regulations. The action alleges that when the falsity of the
information was revealed, the price of CannTrust's securities
dropped significantly, causing damage to the Class Members.
The plaintiffs seek compensation and/or damages for the Class
Members for misrepresentation, negligence, conspiracy and
oppression.
Shareholders of CannTrust wishing to obtain additional information
are encouraged to contact Serge Kalloghlian of KPC at
skalloghlian@kalloghlian.ca or visit
https://www.kalloghlian.ca/canntrust-holdings-inc [GN]
CARRIZO OIL: Callon Petroleum Merger Docs Lack Info, Umland Says
----------------------------------------------------------------
JAMES UMLAND, Individually and on Behalf of All Others Similarly
Situated, the Plaintiff, v. CARRIZO OIL & GAS, INC., S.P. JOHNSON,
STEVEN A. WEBSTER, ROGER A. RAMSEY, F. GARDNER PARKER, FRANCES
ALDRICH SEVILLA-SACASA, THOMAS L. CARTER, JR., ROBERT F. FULTON,
and FRANK A. WOJTEK, the Defendant, Case No. 1:19-cv-08224
(S.D.N.Y., Sept. 4, 2019), alleges that Carrizo's Board of
Directors violated Section 14(a) and 20(a) of the Securities
Exchange Act of 1934, in connection with a proposed sale of Carrizo
to Callon Petroleum Company.
On July 14, 2019, Carrizo entered into an Agreement and Plan of
Merger with Callon. Pursuant to the terms of the Merger Agreement,
the Company's shareholders will receive 2.05 shares of Callon
common stock for each share of Carrizo common stock owned. The
consummation of the Proposed Transaction is subject to certain
closing conditions, including the approval of the stockholders of
Carrizo. The Proposed Transaction is expected to close in the
fourth quarter of 2019.
On August 20, 2019, in order to convince Carrizo's stockholders to
vote in favor of the Proposed Transaction, the Board authorized the
filing of a materially incomplete and misleading Form S-4
Registration Statement with the SEC, in violation of Sections 14(a)
and 20(a) of the Exchange Act.
The Plaintiff seeks to enjoin Defendants from taking any steps to
consummate the Proposed Transaction unless and until the material
information is disclosed to Carrizo stockholders before the vote on
the Proposed Transaction or, in the event the Proposed Transaction
is consummated, recover damages resulting from the Defendants'
violations of the Exchange Act, the lawsuit says.
Carrizo is a Houston-based energy company actively engaged in the
exploration, development, and production of oil and gas.[BN]
Attorneys for the Plaintiff are:
Joshua M. Lifshitz, Esq.
LIFSHITZ & MILLER LLP
821 Franklin Avenue, Suite 209
Garden City, NY 11530
Telephone: (516) 493-9780
Facsimile: (516) 280-7376
E-mail: jml@jlclasslaw.com
CASH CONVERTERS: Expects $4MM Loss Following Class Action Payout
----------------------------------------------------------------
Nick Hall, writing for Franchise Business, reports that a torrid
year headlined by economic instability and a damaging class action
payout has seen retailer and payday lender Cash Converters headed
for a loss.
In a pre-results release, Cash Converters revealed to investors
that it expects to poll a net profit loss of anywhere between $2m
and $4m after tax. The announcement comes just one year after the
iconic pawnbroker franchise posted a $22.5m profit result.
Cash Converters class action
By far the biggest factor impacting Cash Converter's projected loss
was a $16.4m class action settlement, paid in November 2018.
While the class action was accounted for, a further trial still
looms large over the pawnbroker and payday lender's head. In its
pre-result release, Cash Converters revealed that it continues to
incur legal fees associated with the defence of the action, with
spend climbing upwards of $3.2m.
Despite the significant profit hit, Cash Converters reported that
revenue was up by eight per cent in FY2019 to $283m. However,
growth in the auto lending and personal loan books had also come
with an associated increase in bad debt expense.
Auto lending
With demand for fast-approval loans steadily rising, Cash
Converter's foray into the market has come with some contention.
In December last year, a Senate hearing probed Cash Converters'
same day loan offering, suggesting it may have taken advantage of
vulnerable consumers.
It wasn't the first time accusations had rumbled. Back in 2016,
Cash Converters was hit with an enforceable undertaking by the
corporate regulator, which demanded a review of the lender's
practises.
With fresh CEO, Brendan White now at the helm, it seems some
milestones are being ticked off, however it may be some time before
Cash Converters sees a return. In its latest release, the brand
revealed that management had conducted a review of its credit
scorecards in the second half of the financial year, tightening
approval criteria.
At an approximate cost of $5m, Cash Converters engaged external
consultants to conduct reviews of the unsecured personal finance
loan books, with some loans written off.
"Since joining the Company in March 2019 I have had the opportunity
to review the business operations and meet many of our loyal
customers and colleagues," White said.
"Cash Converters enjoys a unique position in the community,
servicing over 750,000 active customers across our business
segments. As reflected by a strong Net Promoter Score, our
customers remain the central focus of our business and we continue
to strive to deliver a customer experience that exceeds
expectations."
Cash Converters future
While the costs associated with Cash Converters' ongoing
restructuring process continue to climb, now hitting $1.4m, the CEO
revealed that focus on technological initiatives would help drive
future progress for the chain's 150 Australian locations.
"By further leveraging our technology platform, digital channels
and extensive store network we will continue to build upon the
momentum of revenue growth and operational efficiencies in 2019,
thereby delivering value for all stakeholders in the year ahead,"
he said.
"I look forward to updating the market further on our emerging
business strategy when the full year audited results are delivered
towards the end of August." [GN]
CBS: Faces Class Action Over Collapse of Federal Credit Union
-------------------------------------------------------------
Erik Pedersen, writing for Deadline, reports that the CBS Employees
Federal Credit Union was shut down in May, two months after its
longtime manager was arrested and charged with embezzling more than
$40 million from it over two decades. Now, with Edward Rostohar
having pled guilty and set to be sentenced this month, CBS is
facing a class action by its employees to recover that money.
In an 18-page complaint filed in Los Angeles Superior Court (read
it here), the workers led by named plaintiff Victor Webb are suing
over "the failure of the Board of Directors and the Supervisory
Committee of CBS Employees to exercise reasonable oversight of the
Credit Union's management and allowing former Manager and CEO
Edward Martin Rostohar to embezzle more than $40 million from the
Credit Union."
According to an affidavit filed with the original criminal
complaint, beginning before 2000 and continuing until his March 15
arrest, Rostohar used his longtime position as a manager at the
federally insured credit union to make online payments to himself
or forged the signature of another employee on checks to himself.
The feds had alleged that Rostohar spent the money on gambling and
expensive cars and jewelry. Read more details of the case here.
Prosecutors are seeking up to 15 years in prison for Rostohar, who
has admitted to the theft. He is set to be sentenced September 16
in Los Angeles federal court
"Had Defendants exercised reasonable oversight of CBS Employees
management, Rostohar's embezzlement scheme would have been
discovered before he was able to steal more than $40 million from
CBS Employees and cause the Credit Union to be liquidated,"
according to the suit filed on Aug. 9.
Attorneys Richard D. McClune and Michele M. Vercoski of McCune
Wright Arivalo LLC in Irvine, CA, are representing the class in the
suit, which seeks at least $40 million damages and a jury trial.
[GN]
CEDAR SHAKE: Court Sets Initial Case Management in Antitrust Suit
-----------------------------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, issued an Order for Pre-Trial Consolidation
and Initial Case Management in the case captioned In re Cedar Shake
and Shingle Antitrust Litigation. This Document Relates to ALL
CLASS ACTIONS. Case Nos. 2:19-cv-00288-MJP, 2:19-cv-00451-MJP,
2:19-cv-00577-MJP. (W.D. Wash.).
Liebo, et al. v. Cedar Shake & Shingle Bureau, et al., No.
2:19-cv-00288 shall be designated the End User Action.
Fraser Construction Company, Inc., et al. v. Cedar Shake & Shingle
Bureau, et al., No. 2:19-cv-00451 shall be designated the Reseller
Action.
Bradow v. Cedar Shake & Shingle Bureau, et al., No. 2:19-cv-00577
shall be designated the Direct Purchaser Action.
The End User Action, the Reseller Action, and the Direct Purchaser
Action shall collectively be referred to as the Class Actions.
This order does not constitute a determination that these actions
should be consolidated for trial, nor does it have the effect of
making any entity a party to an action in which it has not been
joined and served in accordance with the Federal Rules of Civil
Procedure.
Any lawyer who has been admitted pro hac vice in any of these
actions need not seek pro hac vice admission in any other action; a
single pro hac vice admission in the consolidated Class Action
proceedings is sufficient. Any lawyer who has filed a notice of
appearance in any of the above Class Actions need not notice an
appearance in any other action; a single notice of appearance in
these consolidated proceedings is sufficient. It is incumbent upon
the lawyer to ensure his or her appearance is listed in the
consolidated proceedings for ECF purposes.
NEWLY FILED OR TRANSFERRED ACTIONS
Counsel must call to the attention of the Clerk the filing or
transfer of any case that might properly be coordinated with these
actions and identify the group of actions to which it belongs.
Privileges Preserved. No communication among Plaintiffs' counsel or
among Defendants' counsel shall be taken as a waiver of any
privilege or protection to which they would otherwise be entitled.
STATUS CONFERENCES
The first status conference will take place on Thursday, October 3
at 9:00 am. The Court will set the time and date for subsequent
status conferences at the conclusion of each status conference.
Except as otherwise indicated by the Court, counsel for any party
may attend status conferences by telephone. The Court will provide
a phone bridge line for counsel's use. No later than 48 hours prior
to the scheduled time for any status conference, the parties shall
file a joint notice of no more than two pages that lists the issues
a party or parties wish to discuss at the status conference, or
that advises the Court that no status conference is needed, . The
parties shall refrain from making arguments in this joint notice.
requests, discovery responses, and similar documents by email.
A full-text copy of the District Court's August 28, 2019 Opinion is
available at https://tinyurl.com/yxze5ldu from Leagle.com.
Jack L Liebo, individually and on behalf of all others similarly
situated, Plaintiff, represented by Anne T. Regan --
aregan@hjlawfirm.com -- HELLMUTH & JOHNSON, pro hac vice, Arielle
S. Wagner -- aswagner@locklaw.com -- LOCKRIDGE GRINDAL NAUEN, pro
hac vice, Brian D. Clark -- bdclark@locklaw.com -- LOCKRIDGE
GRINDAL NAUEN, pro hac vice, Elizabeth R. Odette --
erodette@locklaw.com -- LOCKRIDGE GRINDAL NAUEN, pro hac vice, Mark
Adam Griffin -- mgriffin@kellerrohrback.com -- KELLER ROHRBACK LLP,
Nathan D. rosser -- nprosser@hjlawfirm.com -- HELLMUTH & JOHNSON
PLLC, pro hac vice, Raymond J. Farrow -- rfarrow@kellerrohrback.com
-- KELLER ROHRBACK, W. Joseph Bruckner -- wjbruckner@locklaw.com --
LOCKRIDGE GRINDAL NAUEN, pro hac vice & Karin Bornstein Swope --
kswope@kellerrohrback.com -- KELLER ROHRBACK LLP.
Cedar Shake & Shingle Bureau, a Washington nonprofit corporation,
Defendant, represented by Jessica Walder -- walderj@lanepowell.com
-- LANE POWELL PC, Larry Steven Gangnes -- gangnesl@lanepowell.com
-- LANE POWELL PC, Heidi Brooks Bradley -- bradleyh@lanepowell.com
-- LANE POWELL PC & Joseph D. Adamson -- adamsonj@lanepowell.com --
LANE POWELL PC.
Waldun Forest Products Ltd, a British Columbia corporation,
Defendant, represented by Mathew L. Harrington --
matthew.harrington@stokeslaw.com -- STOKES LAWRENCE.
CELENTANO STADTMAUER: Court Grants Bid to Dismiss Klotz FDCPA Suit
------------------------------------------------------------------
In the case, TERRY L. KLOTZ, on behalf of herself and those
similarly situated, Plaintiff, v. CELENTANO, STADTMAUER &
WALENTOWICZ, LLP and JOHN DOES 1 to 10, Defendants, Case No. 19-248
(SDW) (SCM) (D. N.J.), Judge Susan D. Wigenton of the U.S. District
Court for the New Jersey granted teh Defendant's Motion to Dismiss
Plaintiff Terry L. Klotz's Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6).
The action concerns the letters that the Defendant, a collection
law firm, mailed to the Plaintiff on Jan. 8, 2018 and March 26,
2018. The letters refer to an outstanding debt for medical
services the Plaintiff's late husband, Peter M. Klotz, received
from Hackensack University Medical Center. Despite informing the
Defendant that her husband had his own insurance, the Plaintiff
alleges that the Defendant continued its collection efforts.
On Jan. 8, 2019, the Plaintiff filed a one-count, putative
class-action complaint alleging that the Defendant violated the
Fair Debt Collection Practices Act ("FDCPA"). On March 1, 2019,
the Defendant filed the instant Motion to Dismiss.
Judge Wigenton finds that the collection notices in the instant
matter clearly reflect that the services were rendered to Mr.
Klotz, who is listed as the patient in the Defendant's Jan. 8, 2018
and March 26, 2018 letters. As such, he finds that there is
nothing objectively misleading in the Defendant's letters, even to
the "least sophisticated consumer." Because the Plaintiff has
failed to sufficiently allege that the Defendant's communications
violated a provision of the FDCPA, the Complaint will be dismissed.
For the reasons set forth, Judge Wigenton granted the Defendant's
Motion to Dismiss. An appropriate Order follows.
A full-text copy of the Court's Aug. 6, 2019 Order is available at
https://is.gd/Ef5l1a from Leagle.com.
TERRY L KLOTZ, on behalf of herself and those similarly situated,
Plaintiff, represented by RONALD IRA LEVINE & YONGMOON KIM, Kim Law
Firm LLC.
CELENTANO, STADTMAUER & WALENTOWICZ, LLP, Defendant, represented by
ANDREW MICHAEL SCHWARTZ -- amschwartz@grsm.com -- Gordon Rees
Scully Mansukhani, LLP & LAWRENCE J. BARTEL, III --
lbartel@grsm.com -- Gordon Rees Scully Mansukhani.
CENTRAL RESEARCH: Ct. Stays Vlasak Class Certification Proceedings
------------------------------------------------------------------
The United States District Court for Eastern District of Wisconsin
issued an Order granting Plaintiff Motion to Stay in the case
captioned JENNIFER VLASAK, Plaintiff, v. CENTRAL RESEARCH, INC.,
Defendant. Case No. 19-CV-1207. (E.D. Wis.).
In this motion she moved to certify the class described in the
complaint but also moved the court to stay further proceedings on
that motion.
The plaintiff filed a class action complaint.
In Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011),
the court suggested that class-action plaintiffs move to certify
the class at the same time that they file their complaint. The
pendency of that motion protects a putative class from attempts to
buy off the named plaintiffs. However, because parties are
generally unprepared to proceed with a motion for class
certification at the beginning of a case, the Damasco court
suggested that the parties ask the district court to delay its
ruling to provide time for additional discovery or investigation.
The plaintiff's motion to stay further proceedings on the motion
for class certification is granted.
A full-text copy of the District Court's August 27, 2019 Order is
available at https://tinyurl.com/y3b6erhn from Leagle.com.
Paula Rodz, Plaintiff, represented by Ben J. Slatky --
bslatky@ademilaw.com -- Ademi & O'Reilly LLP, Jesse Fruchter --
jfruchter@ademilaw.com -- Ademi & O'Reilly LLP, John D. Blythin --
jblythin@ademilaw.com -- Ademi & O'Reilly LLP & Mark A. Eldridge --
meldridge@ademilaw.com -- Ademi & O'Reilly LLP.
CEPHALON: Judge OK's $65.8MM Provigil Class Action Settlement
-------------------------------------------------------------
Kyle Blankenship, writing for Fierce Pharma, reports that mired in
pay-for-delay lawsuits over its narcolepsy drug Provigil, Teva's
Cephalon is looking to clear the field. A class-action settlement
in Pennsylvania could help ease investors' minds.
A federal judge has approved a $65.8 million settlement between
Teva's Cephalon and five plaintiffs on charges the drugmaker
incentivized other generics makers to keep Provigil competitors off
the market to protect the now-generic drug's sales.
The civil suit comes four years after Teva agreed to pay out $1.2
billion to settle a Federal Trade Commission probe into similar
charges that the Israeli drugmaker promised competitors Mylan and
Sun Pharmaceuticals payment for active ingredients and intellectual
property -- deals that made "no economic sense" for Cephalon beyond
stopping competition.
A Teva spokeswoman could not be reached for comment by press time.
The potential closing of the class-action Provigil lawsuit mostly
shuts the door on the Provigil front of Teva's ongoing legal
troubles.
Late in July, the drugmaker reached an agreement with former execs
to claw back $50 million to help cover its $519 million settlement
with the DOJ and SEC in 2016 to end a foreign bribery probe.
In that case, a series of Teva shareholder lawsuits accused the
company of raking in $276 million in profits from its arrangement
to shell out millions to unnamed foreign officials in Ukraine,
Russia and Mexico between 2007 and 2012.
Teva agreed to pay $519 million to the U.S. government and an
additional $22 million to the Israel State Attorney's Office.
Teva's also been on the receiving end of scrutiny for marketing of
its generic opioids in nationwide litigation that has swamped the
industry.
The drugmaker said it had set aside $646 million in potential
settlement funds despite not acknowledging any wrongdoing. Teva
previously agreed to pay the state of Oklahoma $85 million to
settle an illegal marketing probe in that state.
Outgoing Teva CFO Michael McClellan told investors in an Aug. 8
earnings call that the drugmaker reached the $646 million amount by
extrapolating the range of potential settlements from the one it
signed in Oklahoma.
"We still don't see that we have a huge liability in this case in
terms of causing this epidemic, but we do know that there is a lot
of cases going on and there is a likelihood that some of these
could settle in the future," McClellan said. [GN]
CHARTER COMMUNICATIONS: JAMS Arbitration Award in Harper Confirmed
------------------------------------------------------------------
In the case, LIONEL HARPER, individually and on behalf of all
others similarly situated and all aggrieved employees, Plaintiff,
v. CHARTER COMMUNICATIONS, LLC, CHARTER COMMUNICATIONS, INC., and
DOES 1 through 25, Defendant, Case No. 2:19-cv-00902 WBS DMC (E.D.
Cal.), Judge William B. Shubb of the U.S. District Court for the
Eastern District of California (i) granted the Plaintiff's Motion
to Confirm Arbitration Award and Enter Judgment, and (ii) denied
the Defendant's Motion to Compel Arbitration of Plaintiff's
Individual Claims, Dismiss the Putative Class Claims, and Stay the
PAGA Claims.
The Charter Defendants market and sell telecommunications services
nationwide, including in California. From approximately September
2017 to March 2018, the Plaintiff worked for the Charter Defendants
as a salesperson in California.
Upon hire, the Plaintiff signed a "Mutual Agreement to Arbitrate."
That agreement required arbitration of any and all claims,
disputes, and/or controversies between the Plaintiff and Charter
arising from or related to his employment with Charter. It
designated JAMS as the arbitration provider and stated that JAMS
Employment Arbitration Rules & Procedures and JAMS Policy on
Employment Arbitration Minimum Standards of Procedural Fairness
would govern the arbitration of claims between the Plaintiff and
Charter. The JAMS Arbitration Agreement also included a waiver of
representative, collective, and class actions, and a severance and
so-called "poison pill" provision.
On Oct. 6, 2017, while the Plaintiff was still employed by the
Charter Defendants, Charter adopted a new arbitration agreement
that required arbitration of claims via "Solution Channel,"
Charter's employment-based legal dispute resolution program.
Unlike the JAMS Arbitration Agreement, the Solution Channel
Arbitration Agreement provides for arbitration under the auspices
and pursuant to the rules of the American Arbitration Association.
Charter announced this change via e-mail to all active non-Union
employees below the level of Executive Vice President, the
Plaintiff among them. The Defendant states that the Solution
Channel announcement email "indicated to Employees, including the
Plaintiff, that they would be enrolled in Solution Channel, and
bound by the new Arbitration Agreement, unless they opted out
within 30 days. The Plaintiff did not opt out and, as a result,
the Defendant contends, all of his claims against Charter are
subject to the terms of the new Solution Channel Arbitration
Agreement.
The Plaintiff alleges that during his employment with Charter,
Charter violated a variety of wage and hour laws by, for example,
failing to pay overtime wages, failing to pay minimum wage for all
hours worked, failing to provide rest breaks or pay premium wages
in lieu of rest breaks, and failing to provide accurate wage
statements. In May 2018, after the termination of his employment
with the Defendant, the Plaintiff contacted JAMS and asked to
mediate his grievances against Charter. JAMS then contacted
Charter regarding the request and Charter responded.
Though Charter's initial response to the mediation-inquiry
mentioned the "Solution Channel process," subsequent correspondence
from Charter's counsel makes clear that the Defendant sought to
enforce the JAMS Arbitration Agreement against the Plaintiff.
Specifically, on July 3, 2018, Zachary Shine, outside counsel for
Charter, sent the Plaintiff's counsel a letter requesting that
Harper stipulate to arbitration of his claims against Charter.
Attached to that letter was a copy of the JAMS Arbitration
Agreement the Plaintiff signed when he commenced his employment
with Charter. Shine's July 3, 2018, letter contained no mention of
the Solution Channel Agreement.
The Plaintiff acquiesced to the Defendant's demand for binding
arbitration through JAMS. In September 2018, he filed a PAGA
notice with the California Labor and Workforce Development Agency.
The Plaintiff did not receive notice of the agency's intent to
investigate the Labor Code violations he alleged within 65 days
and, on Nov. 19, 2018, he filed a Demand for Arbitration and
Request for Rulings as to Inarbitrability with JAMS. The
Plaintiff's demand asked the arbitrator to rule on: (1) whether the
arbitrator had the authority to decide all enforceability, scope,
and arbitrability issues; (2) whether the entire Arbitration
Agreement is "null and void" by its own terms; and (3) whether
arbitration jurisdiction existed beyond the ability of the
arbitrator to rule that the Arbitration Agreement was "null and
void."
After Harper filed his demand with JAMS, Charter paid its share of
the JAMS arbitration costs and fees and participated in the
selection of the Hon. Rebecca J. Westerfield (Ret.) as the
arbitrator. Following a preliminary hearing, the arbitrator
ordered Charter to produce no later than Feb. 22, 2019 any job
application related or onboarding documents Harper may have
completed, signed, acknowledged, or been provided and any employee
handbooks or other policies, acknowledgements, or agreements that
governed Harper's employment. Charter produced documents in
response to this discovery order.
Harper then filed a motion for threshold rulings from the
arbitrator as to the inarbitrability of the Plaintiff's claims.
Charter responded to that motion and argued that the Plaintiff's
claims were arbitrable pursuant to the JAMS Arbitration Agreement.
On April 25, 2019, the arbitrator issued an award granting Harper's
motion, finding that the Plaintiff's wage-and-hour claims were
inarbitrable, and dismissing the arbitration for lack of
arbitration jurisdiction.
At no point during the five-month pendency of the JAMS arbitration
did the Charter Defendants assert that the JAMS Arbitration
Agreement was superseded by the Solution Channel Arbitration
Agreement. On May 3, 2019, Harper initiated the action in
California state court. It was not until several weeks later that
the Defendant first sought to enforce its rights under the Solution
Channel Agreement. Specifically, on May 22, 2019, the Defendant's
counsel wrote to the Plaintiff's counsel and asked them to
stipulate to arbitrate his claims on an individual basis and
dismiss his putative class and representative claims pursuant to
the Solution Channel Arbitration Agreement. The Plaintiff declined
to so stipulate.
This series of events has led to the two motions presently before
the Court. The Plaintiff moves the Court to confirm the JAMS
arbitration award and enter judgment. The Defendant moves the
Court to enforce its rights under the Solution Channel Agreement by
compelling arbitration of the Plaintiff's claims, dismissing the
putative class claims, and staying the Plaintiff's PAGA claims.
Judge Shubb finds that, at the time of the arbitrator's award, the
parties had an enforceable agreement to arbitration pursuant to the
JAMS Arbitration Agreement. Accordingly, he rejects the Charter
Defendants' argument that the JAMS Arbitration Agreement was
unenforceable and that, therefore, the arbitration award based on
that agreement is unconfirmable.
He also finds that the JAMS Arbitration Agreement at issue in the
case explicitly incorporates the JAMS Rules by reference. Those
Rules, in turn, explicitly provide that, the Parties to an
Arbitration under these Rules will be deemed to have consented that
judgment upon the Award may be entered in any court having
jurisdiction thereof. JAMS Comprehensive Arbitration Rules &
Procedures Rule 25. Thus, both Defendant Charter and the Plaintiff
consented that judgment upon the arbitration award may be entered
in any court having jurisdiction thereof.
The parties had a valid and enforceable agreement to submit issues
related to the arbitrability of the JAMS Arbitration Award to a
JAMS arbitrator, and the JAMS Arbitration Agreement explicitly
provided for the confirmation of any resultant arbitration awards
by a court. Moreover, the arbitrator's Order Dismissing
Arbitration was a "final" order confirmable under 9 U.S.C. Section
9. Finally, the Judge has reviewed the Order Dismissing
Arbitration and finds no evidence that it is "completely
irrational" or constitutes a "manifest disregard of the law." For
those reasons, the Judge will grant the Plaintiff's Motion to
Confirm Arbitration Award and Enter Judgment.
Next, the Judge finds that there was a novation and that any rights
the parties may have had pursuant to the Solution Channel
Arbitration Agreement were rendered "dead and extinguished" by the
parties' ascension to the JAMS Arbitration Agreement in November
2018. He finds that the JAMS Arbitration Agreement's waiver of
representative claims under PAGA is unenforceable as a matter of
state law. The remainder of the JAMS Arbitration Agreement is void
because of the "poison pill" provision contained within the
agreement. Thus, though almost all of the JAMS Arbitration
Agreement is invalid and unenforceable, this invalidity is due to
state law and the terms of the contract, not to any fraud or
unconscionability. Thus, the JAMS Arbitration Agreement is "valid"
for the purposes of the Court's novation analysis.
Charter's Motion to Dismiss Plaintiff's Class Claims argues that
the Plaintiff cannot assert class claims against Charter because he
is subject to the class action waiver in the Solution Channel
Arbitration Agreement. The Judge has already found that any rights
the parties may or may not have had pursuant to the Solution
Channel Arbitration Agreement were superseded and extinguished by
the JAMS Arbitration Agreement. Accordingly, the Plaintiff is not
bound the by the Solution Channel Arbitration Agreement's class
action waiver and the Judge will deny Defendant's Motion to Dismiss
Plaintiff's Class Claims.
Concurrent with their Motion to Compel Arbitration and their Motion
to Dismiss, the Defendants move the Court to stay the Plaintiff's
PAGA claims pending the arbitration of the Plaintiff's individual
claims. The Charter Defendants argue that staying the Plaintiff's
PAGA claims would promote judicial economy and allow the avoidance
of res judicata and collateral estoppel issues. In light of the
fact that the Court will neither compel arbitration of the
Plaintiff's individual claims nor dismiss his class claims, the
Defendant's argument is moot.
Based on the foregoing, Judge Shubb granted the Plaintiff's Motion
to Confirm Arbitration Award and Enter Judgment. He denied the
Defendant's Motion to Compel Arbitration of Plaintiff's Individual
Claims, Dismiss the Putative Class Claims, and Stay the PAGA
Claims.
A full-text copy of the Court's Aug. 6, 2019 Memorandum and Order
is available at https://is.gd/ZNqFof from Leagle.com.
Lionel Harper, Plaintiff, represented by Jamin S. Soderstrom --
jamin@soderstromlawfirm.eom -- Soderstrom Law Firm.
Charter Communications, LLC & Charter Communications, Inc.,
Defendants, represented by Kathryn T. McGuigan --
kathryn.mcguigan@morganlewis.com -- Morgan, Lewis and Bockius LLP,
Nicole Antonopoulos -- nicole.antonopoulos@morganlewis.com --
Morgan Lewis & Bockius LLP & Zachary W. Shine --
zachary.shine@morganlewis.com -- Morgan, Lewis & Bockius LLP.
CHICAGO BRIDGE: Settlement in Jones FLSA Suit Has Final Approval
----------------------------------------------------------------
In the case, BONNIE R. JONES, on behalf of Herself and all others
similarly situated, Plaintiffs, v. CHICAGO BRIDGE & IRON COMPANY
(DELAWARE) a/k/a CB&I and CB&I STONE & WEBSETER, INC., Defendants,
Case No. 3:17-cv-00424-RJC-DSC (W.D. N.C.), Judge Robert J. Conrad,
Jr. of the U.S. District Court for the Western District of North
Carolina, Charlotte Division, granted the parties' Joint Motion for
Final Approval of Class Action Settlement Agreement and Approval of
Attorneys' Fees and Costs.
The matter comes before the Court on the parties' Joint Motion.
The Court conducted the Final Fairness and Approval Hearing on June
25, 2019. The parties request approval of the Class Action
Settlement Agreement reached between them.
The Plaintiffs alleged that the Defendant failed to pay her and
similarly situated employees promised and earned overtime premium
compensation in violation of the Fair Labor Standards Act ("FLSA");
the North Carolina Wage and Hour Act ("NCWHA"); the Massachusetts
Payment of Wages Act ("MPWA"); and the Massachusetts Minimum Fair
Wage Law ("MMFWL"). The Defendant denies any liability or
wrongdoing of any kind under the FLSA and NCWHA, MPWA and MMFWL and
pled various defenses.
The Court preliminarily approved the parties' Agreement on March
29, 2019. Notice was provided to the Class Members. There were no
objections to the settlement and only four Class Members excluded
themselves from the settlement. There are disputes between the
Parties as to the underlying facts and the controlling law.
Nonetheless, the parties believe the settlement reached and agreed
upon is a fair and reasonable settlement of their dispute, given
the uncertainty as to liability and damages and the estimated
future costs of litigation.
After due consideration and inquiry into the circumstances
surrounding the proposed settlement of the Plaintiffs' collective
FLSA claims and Rule 23 class claims under North Carolina and
Massachusetts law against the Defendant, and review of the
Agreement, Judge Conrad finds and concludes that the proposed
settlement in the case meets the standard for approval as it
reflects a reasonable compromise of a bona fide dispute. The
proposed settlement is just and reasonable and in the best interest
of the parties. Further, he finds that the settlement has been
reached in good faith, and the parties' Agreement is fair,
reasonable, and adequate under Fed. R. Civ. P. 23(e). The class
representative, Named Plaintiff Bonnie Jones, and Class Counsel
have adequately represented the class, and the settlement proposal
was negotiated at arm's length. The settlement proposal treats
class members equitably relative to each other.
For these reasons, he granted the parties' Joint Motion for Final
Approval of Class Action Settlement Agreement and Approval of
Attorneys' Fees and Costs. The parties' Class Action Settlement
Agreement is finally approved.
For settlement purposes only, the following Settlement Class is
finally certified pursuant to Fed. R. Civ. P. 23 and 29 U.S.C.
Section 216(b): Non-exempt employees working a 9/80 plan in the
Defendant's Power Division for the 2 years preceding the filing of
the Complaint (July 18, 2015 through July 18, 2017) who were
located in Charlotte, North Carolina and Canton, Massachusetts.
Plaintiff Bonnie Jones is approved as the Representative of the
Settlement Class, and the proposed service award as outlined in the
Agreement to Plaintiff Jones for her service to the Settlement
Class is approved.
Gibbons Leis, PLLC and Stephan Zouras, LLP are approved as the
Class Counsel to the Settlement Class. The Plaintiff's unopposed
request for attorneys' fees and costs is granted, and fees and
costs as outlined in the Agreement are approved.
Gibbons Leis, PLLC is approved as Settlement Administrator and the
costs of the settlement administration will be paid by the
Defendant as outlined in the Agreement.
The Judge directed that the settlement funds be distributed in
accordance with the terms of the Class Action Settlement Agreement.
He directed the entry of final judgment in the case on or after
July 10, 2019 (due to Class Action Fairness Act requirements) and
dismissal of the action with prejudice in its entirety in
accordance with the terms of the Class Action Settlement Agreement.
The Clerk of the Court is ordered to enter Final Judgment in the
action adjudicating all the claims and all the Parties' rights and
liabilities pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure.
A full-text copy of the Court's Aug. 6, 2019 Order is available at
https://is.gd/ilBwBm from Leagle.com.
Bonnie R. Jones, on behalf of herself and all others similarly
situated, Plaintiff, represented by Catherine T. Mitchell, STEPHAN
ZOURAS, LLP, pro hac vice, Ryan F. Stephan --
Rstephan@stephanzouras.com -- Stephan Zouras, LLP, pro hac vice,
Craig Lorne Leis, Gibbons Leis, PLLC & Philip J. Gibbons, Jr. --
Pgibbons@stephanzouras.com -- Gibbons Leis, PLLC.
Chicago Bridge & Iron Company, also known as CB&I also known as
CB&I Stone & Webster, Inc., Defendant, represented by Benjamin
Robert Holland -- ben.holland@ogletree.com -- Ogletree Deakins
Nash
Smoak & Stewart PC.
CHURCH & DWIGHT: $300K Settlement in Patton Has Final Approval
--------------------------------------------------------------
In the case, CRISHANDA PATTON, an individual, on behalf of herself,
and on behalf of all persons similarly situated, Plaintiff, v.
CHURCH & DWIGHT CO., INC.; Defendant, Case No. EDCV 18-903-MWF
(KKx) (C.D. Cal.), Judge Michael W. Fitzgerald of the U.S. District
Court for the Central District of California granted th (i) Motion
for Final Approval of Class Action Settlement, and (ii) the Motion
for Final Approval of Attorneys' Fees, Costs, and Class
Representative Enhancement Payment.
The matter came before the Court on June 10, 2019, for a hearing on
the Motions. Due and adequate notice having been given to the
Class Members as required by the Court's Preliminary Approval Order
dated Feb. 26, 2019. The Court has received no objections to the
Settlement.
Judge Fitzgerald determines that Settlement is fair, adequate and
reasonable to the Settlement Classes and its members. He approved
the settlement of the Action as memorialized in the Settlement
Agreement. The Gross Settlement Fund of $300,000 appears to be the
product of arm's-length and informed negotiation and treats all the
Settlement Class Members fairly.
The Judge certified for purposes of implementing the Settlement
Agreement, the Settlement Class consisting of all individuals in
the United States of America who filled out the Defendant's
'standard application form' permitting Defendant to obtain a
consumer report verifying applicants' background and experience
during the Class Period. The Class Period of April 30, 2013 to
April 30, 2018 is made final.
No Class Members objected to the terms of the settlement. There
are five individuals who have validly requested exclusion from the
Settlement Class.
The Judge confirmed Kingsley & Kingsley, APC as the Class Counsel
in the Action. He granted the unopposed application of the Class
Counsel for a costs and attorneys' fees award provided for under
the proposed Settlement. Of the Gross Settlement Fund, $75,000 or
25% will be paid for attorney fees and $1,000 will be paid for
litigation costs.
The Judge granted the unopposed application of the Class Counsel
for a Service Award. Of the Gross Settlement Fund, a $5,000
Enhancement will be allocated to Named Plaintiff Patton.
The Judge also granted the unopposed application of the Class
Counsel for claims administration fees to Rust Consulting, Inc. Of
the gross settlement amount, $25,000 will be paid for settlement
administration fees.
The Parties will bear their own costs and attorneys' fees except as
otherwise provided by the Agreement and the Final Approval Order.
The Order will constitute a Final Judgment for purposes of Federal
Rule of Civil Procedure 58. The Judgment is intended to be a final
disposition of the action in its entirety.
The action is dismissed with prejudice, each side to bear its own
costs and attorneys' fees except as provided by the Settlement and
the Order.
A full-text copy of the Court's Aug. 6, 2019 Judgment is available
at https://is.gd/XlLoEM from Leagle.com.
Crishanda Patton, an individual, on behalf of herself and others
similarly situated, Plaintiff, represented by Eric B. Kingsley --
eric@kingsleykingsley.com -- Kingsley and Kingsley APC, Emil
Davtyan -- EDavtyan@lacare.org -- Davtyan PLC & Kelsey M. Szamet --
kelsey@kingsleykingsley.com -- Kingsley and Kingsley APC.
Church and Dwight Co., Inc., Defendant, represented by Patricia Ann
Matias -- patricia.matias@ogletree.com -- Ogletree Deakins Nash
Smoak and Stewart PC.
CLOUDERA INC: Hortonworks Merger-Related Suit Ongoing
-----------------------------------------------------
Cloudera, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on September 4, 2019, for the
quarterly period ended July 31, 2019, that the company continues to
defend a class action suit entitled, In re Cloudera, Inc.
Securities Litigation, related to the company's merger agreement
with Hortonworks, Inc.
In January 2019, the company completed its merger with Hortonworks,
Inc., a publicly-held company headquartered in Santa Clara,
California, and a provider of enterprise-grade, global data
management platforms, services and solutions.
On June 7, 2019, a purported class action complaint was filed in
the Superior Court of California, County of Santa Clara, entitled
Lazard v. Cloudera, Inc., et al., Case No. 19CV348674.
The complaint names as defendants Cloudera, thirteen individuals
who are current or former directors or officers of the Company, and
Intel Corporation.
The complaint alleges that the registration statement contained
untrue statements of material fact and omitted material facts.
Two substantially similar suits, entitled Franchi v. Cloudera,
Inc., et al., Case No. 19CV348790, and Cannizzo v. Cloudera, Inc.,
et al., Case No. 19CV348974, were subsequently filed in the same
court.
The suits have been consolidated under the name In re Cloudera,
Inc. Securities Litigation, and plaintiffs in the consolidated
action purport to assert claims under Sections 11, 12(a)(2) and 15
of the Securities Act of 1933 on behalf of all persons who acquired
Cloudera stock pursuant or traceable to the S-4 registration
statement filed in connection with Cloudera's January 2019 merger
with Hortonworks. Plaintiffs seek, among other things, an award of
damages and attorneys' fees and costs.
Cloudera believes that the allegations in the lawsuits are without
merit.
Cloudera, Inc. provides platform for machine learning and analytics
in the United States, Europe, and Asia. The company operates
through two segments, Subscription and Services. Cloudera, Inc. was
founded in 2008 and is headquartered in Palo Alto, California.
COMMUNICATIONS UNLTD: Hollen Seeks Minimum & OT Wages for Techs
---------------------------------------------------------------
JOSHUA HOLLEN, on behalf of himself and on behalf of all others
similarly situated, the Plaintiff, v. COMMUNICATIONS UNLIMITED
CONTRACTING SERVICES, INC., the Defendant, Case No.
8:19-cv-02129-JSM-TGW (M.D. Fla., Sept. 3, 2019), seeks damages
under the Fair Labor Standards Act for Defendant's failure to pay
minimum wage, failure to pay overtime wages.
The Plaintiff and Members of the Class worked hours in excess of 40
hours within a work week for Defendant, and they were entitled to
be paid an overtime premium equal to one and one-half times their
regular hourly rate for all of these hours.
The Plaintiff was employed by Defendant as a cable technician in
October 2017, and he worked in this capacity until March 2019. The
putative class of similarly situated employees consists of all
other cable technicians employed by Defendant within the last three
years, the lawsuit says.
The Defendant operates a cable services company with its principal
place of business in Birmingham, Alabama.[BN]
Attorneys for the Plaintiff are:
Christopher J. Saba, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Avenue, Suite 300
Tampa, FL 33602
Telephone: 813-224-0431
Facsimile: 813-229-8712
E-mail: csaba@wfclaw.com
tsoriano@wfclaw.com
COMMUNITY HEALTH: Faces Class Action Over Inflated Stock Prices
---------------------------------------------------------------
Ayla Ellison, writing for Becker's Hospital Review, reports that
the U.S. District Court for Middle Tennessee has certified an $891
million class-action lawsuit filed against Franklin, Tenn.-based
Community Health Systems, according to the Nashville Post.
The class-action complaint dates back to 2011 and alleges CHS made
misleading statements that resulted in artificially inflated prices
for the company's common stock.
The fraud allegations first surfaced in April 2011 in a complaint
filed by Dallas-based Tenet Healthcare, which sued CHS to avoid a
hostile takeover bid. Immediately after Tenet sued, CHS issued a
press release stating Tenet's allegations were meritless. CHS'
stock fell nearly 36 percent after Tenet sued.
CHS released weaker-than-expected earnings in October 2011. On an
earnings call, Larry Cash, who then served as CHS' CFO, said
inpatient admissions had declined at 75 percent of its hospitals
after physicians phased out the Blue Book. Blue Book was a guide
CHS created that allegedly prompted physicians to provide inpatient
services for many conditions other hospitals would treat as
outpatient cases. On that same call, CHS Chairman and CEO Wayne
Smith said, "there's no question we've had some adverse impact
related to issues . . . around the Tenet lawsuit," according to
court documents. The day after the earnings call, CHS' stock price
dropped another 11 percent.
Shareholders subsequently sued CHS, claiming they lost a combined
$891 million in the little more than six months between when Tenet
sued and the day of the earnings call and the executive
admissions.
Although CHS continued to deny Tenet's allegations, the company
entered into a $98.15 million settlement with the Department of
Justice in 2014 to resolve allegations that it knowingly billed
government payers for inpatient services that should have been
billed as outpatient or observation services.
The district court dismissed the consolidated lawsuit filed by
shareholders in 2016. The court said the shareholders failed to
show Tenet's lawsuit caused CHS' stock to drop and triggered their
losses.
An appeals panel revived the shareholder suit in December 2017,
finding that CHS executives' public admissions combined with the
fraud allegations were enough to keep the shareholders' lawsuit
alive.
The recent class certification means that anyone who purchased CHS
shares between July 27, 2006, and April 8, 2011, potentially
suffered damages due to the alleged fraud scheme, according to the
Nashville Post.
In an Aug. 6 filing with the Securities and Exchange Commission,
CHS provided an update on the consolidated lawsuit. The company
said the lawsuit is meritless, and it will "vigorously defend this
case." [GN]
COOK COUNTY, IL: Judge Okays Jail Indecency Class Action
--------------------------------------------------------
Jason Meisner, writing for Chicago Tribune, reports that a federal
judge on Aug. 12 gave the green light to a pair of class-action
lawsuits alleging a pattern of "masturbation attacks" allegedly
orchestrated by Cook County Jail inmates against female jail
workers and public defenders created a hostile work environment
that bosses failed to address.
The separate rulings by U.S. District Judge Matthew Kennelly
certify potentially thousands of workers in the two classes of
plaintiffs, including any female assistant Cook County public
defenders who visited the jail over the past four years and most
female sheriff's office employees assigned to the jail or lockups
at the county's main criminal courthouse.
The lawsuits, which name Cook County Sheriff Thomas Dart and Public
Defender Amy Campanelli as defendants, allege the aggressive sexual
behavior created a toxic situation that prompted many female
employees to quit due to emotional distress.
Both Dart and Campanelli have denied the allegations, saying in
previous court filings that they have taken appropriate steps to
try to curtail inmates from exposing themselves.
Among the solutions that were implemented at various times: Holding
classes with problem inmates to inform them of the consequences of
their behavior; requiring repeat offenders to wear modified jail
jumpsuits that limited access to the groin; and handcuffing
detainees behind their backs during attorney visits and transport
to and from lockups, court records show.
Kennelly's rulings on Aug. 12 did not make any findings of
wrongdoing but said enough evidence existed for the plaintiffs to
be certified as a class to pursue their claims.
A spokeswoman for Dart said in a statement the office was still
reviewing the judge's rulings "to determine our next steps in this
litigation."
"The sheriff's office continues to take detainee sexual misconduct
very seriously, and the safety of those who work with the jail
population is our highest priority," according to the statement.
"We have deployed numerous means to hold the perpetrators of these
crimes accountable, including issuing internal discipline and
investigating them for referral for criminal charges."
Calls to Campanelli's office were not returned on Aug. 12.
In his ruling in the suit filed by assistant public defenders, the
judge wrote that it was "undisputed" that between 2015 and 2017,
"attacks involving indecent exposure and masturbation by detainees
became frequent."
"Although each attack was different, a common theme emerged,"
Kennelly wrote. "Detainees targeted women assistant public
defenders and law clerks for attacks that involved exposing their
penises and masturbating while making eye contact with or otherwise
directing their conduct toward their target."
The attacks were "commonly accompanied by verbal threats and,
occasionally, physical contact," Kennelly wrote.
The lawsuits cite evidence of a prison gang called "Savage Life"
that allegedly organized a competition in which detainees were
awarded points for attacks, with incidents involving assistant
public defenders and law clerks worth more points than attacks on
other jail personnel, according to Kennelly's ruling.
In response to the spike in incidents, the sheriff's office in
October 2015 put up signs advising inmates of the consequences of
exposing themselves, according to the ruling. Three months later
the public defender sent supervisors to the jail to hold classes
with detainees to encourage them to "stop the onslaught."
Not only did the problem continue but the attacks also escalated,
according to the lawsuit.
The public defender lawsuit alleged that in June 2016, members of
the jail staff threw a group of maximum-security detainees a pizza
party to reward them for "going a period of time without
perpetrating additional attacks," Kennelly said in his ruling.
According to the suit, the pizza reward only encouraged other
inmates "to join in the harassment in order to become eligible for
such a reward," Kennelly said.
Dart's office has strongly denied the allegation. In his ruling,
Kennelly noted the evidence showed the party was unauthorized and
neither endorsed nor funded by the sheriff.
The assistant public defenders also alleged in their lawsuit that
they were pressured by superiors not to report harassment at the
jail, saying there was a "de facto policy" against pressing
criminal charges against the very people the office was supposed to
be defending.
"In other words, the plaintiffs say that they felt that the public
defender program had a culture in which victims of the sorts of
exhibitionist attacks they endured were expected to simply turn the
other cheek," Kennelly wrote in the ruling. [GN]
COTY INC: Continues to Defend Suit over Cottage Tender Offer
-------------------------------------------------------------
Coty Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on August 28, 2019, for the
fiscal year ended June 30, 2019, that the company continues to
defend a consolidated class action suit related to a tender offer
by Cottage Holdco B.V.
As a result of the completion of the Cottage Holdco B.V. Tender
Offer in May 2019, JABC, through an affiliate, Cottage Holdco B.V.,
owns approximately 60% of the outstanding shares of our Class A
Common Stock. As a result, JAB Cosmetics B.V. (JABC) has the
ability to exercise control over certain decisions requiring
stockholder approval, including the election of directors,
amendments to our certificate of incorporation and approval of
significant corporate transactions, such as a merger or other sale
of the Company or the company's assets.
In addition, several of the members of our Board of Directors are
affiliated with JABC. Accordingly, JAB has significant influence
over the company and its decisions, including the appointment of
management and any other action requiring a vote of the company's
Board of Directors. In addition, this concentration of ownership
may have the effect of delaying, preventing or deterring a change
in control of the company and may negatively affect the market
price of its stock.
Two purported stockholder class action complaints concerning the
Cottage Tender Offer and the Schedule 14D-9 were filed by putative
stockholders against the Company and the directors of the Company
in the U.S. District Court for the District of Delaware, but have
not yet been served.
In both complaints, the plaintiffs allege that the Company's
Schedule 14D-9 omits certain information, including, among other
things, certain financial data and certain analyses underlying the
opinion of Centerview Partners LLC. Plaintiffs assert claims under
the federal securities laws and seek, among other things,
injunctive and/or monetary relief.
A third consolidated purported stockholder class action and
derivative complaint concerning the Cottage Tender Offer and the
Schedule 14D-9 is pending against the directors of the Company, JAB
Holding Company, S.a.r.l., JAB Cosmetics B.V., and Cottage Holdco
B.V. in the Court of Chancery of the State of Delaware. The Company
was named as a nominal defendant.
The case, which was filed on May 6, 2019, was captioned
Massachusetts Laborers' Pension Fund, on behalf of itself and all
similarly situated holders of Coty Inc., v. Peter Harf, Pierre
Laubies, Sabine Chalmers, Joachim Faber, Olivier Goudet, Anna-Lena
Kamenetzky, Erhard Schoewel, Robert Singer, Paul S. Michaels, JAB
Holding Company, S.a.r.l., JAB Cosmetics B.V., and Cottage Holdco
B.V., Case No. 2019-0336-CB ("Massachusetts Laborers").
On June 14, 2019, plaintiffs in the consolidated action filed a
Verified Amended Class Action and Derivative Complaint ("Amended
Complaint"), alleging that the directors and JAB Holding Company,
S.a.r.l., JAB Cosmetics B.V., and Cottage Holdco B.V. breached
their fiduciary duties to the Company’s stockholders and breached
the Stockholders Agreement.
The Amended Complaint sought, among other things, monetary relief.
The defendants responded to the Amended Complaint on August 22,
2019.
Coty Inc., together with its subsidiaries, manufactures, markets,
distributes, and sells beauty products worldwide. It operates in
three segments: Luxury, Consumer Beauty, and Professional Beauty.
The company was founded in 1904 and is based in New York, New York.
As of April 26, 2019, Coty Inc. operates as a subsidiary of JAB
Cosmetics B.V.
DALLAS COUNTY, TX: Dismissal w/o Prejudice of Elroy Suit Endorsed
-----------------------------------------------------------------
Magistrate Judge Rebecca Rutherford of the U.S. District Court for
the Northern District of Texas, Dallas Division, recommended that
the case, ANTHONY ELROY, Plaintiff, v. DALLAS COUNTY JAIL FACILITY,
Defendant, Case No. 3:19-cv-01500-C (BT) (N.D. Tex.), be dismissed
under Fed. R. Civ. P. 41(b).
The Plaintiff, an inmate in the Dallas County jail, and others
filed a putative class action pursuant to 42 U.S.C. Section 1983,
alleging the Dallas County jail is violating their rights by
segregating inmates into housing units based on race. The Court
determined the Plaintiff and the other inmates should not be
allowed to proceed as a class and ordered that the case be severed
into individual actions to allow each inmate to represent himself.
It further ordered each individual Plaintiff to pay the $400 filing
fee or file a motion to proceed in forma pauperis. The Plaintiff
did not pay the filing fee; nor did he file a motion to proceed in
forma pauperis.
On June 25, 2019, the Court sent the Plaintiff a notice of
deficiency reminding him to pay the filing fee or a motion to
proceed in forma pauperis. On Aug. 2, 2019, the notice of
deficiency was returned to the Court because the Plaintiff is no
longer incarcerated in the Dallas County jail. The Plaintiff has
not provided the Court with any forwarding or alternate address.
Magistrate Judge Rutherford finds that Rule 41(b) of the Federal
Rules of Civil Procedure allows a court to dismiss an action sua
sponte for failure to prosecute or for failure to comply with the
federal rules or any court order. In the cas,e the Court entered
an order requiring the Plaintiff to pay the filing fee or file a
motion to proceed in forma pauperis. However, he has failed to
provide the Court with a current address, so it is unable to
communicate with him and advise him of the requirement to pay the
fee or file an appropriate motion. The litigation cannot proceed
until the Plaintiff provides the Court with his current address.
Accordingly, the complaint should be dismissed for want of
prosecution under Fed. R. Civ. P. 41(b).
The Magistrate therefore recommended that the Plaintiff's complaint
should be dismissed without prejudice for want of prosecution under
Fed. R. Civ. P. 41(b). A copy of the Report and Recommendation
will be served on all parties in the manner provided by law. Any
party who objects must file specific written objections within 14
days after being served with a copy.
A full-text copy of the Court's Aug. 2, 2019 Findings, Conclusions,
and Recommendation is available at https://is.gd/6iNJE7 from
Leagle.com.
Anthony Elroy, Plaintiff, pro se.
DETROIT POLICE: Court Denies Certification of DDC Detainees Class
-----------------------------------------------------------------
In the class action lawsuit styled as CHARLES TURNER, REUBEN
BRYANT, TIMOTHY DAVIS, and TYESHA BROWN, the Plaintiffs, vs. CITY
OF DETROIT, the Defendant, Case No. 2:14-cv-14036-MOB-MJH (E.D.
Mich., Oct. 20, 2014), the Hon. Judge Marianne O. Battani entered
an order on Sept. 4, 2019:
1. denying Plaintiffs' October 26, 2018 motion for class
certification of:
"all persons arrested by the Detroit Police Department (DPD)
and detained overnight at the Detroit Detention Center (DDC)
at any time between August 1, 2013 and September 30, 2017";
and
2. denying Defendant's February 21, 2019 motion for leave to
file a supplemental brief in opposition to Plaintiff's
motion.
The Court said it cannot conclude that a class action is superior
to other available methods for fairly and efficiently adjudicating
the outstanding issues in the case. In their motion, the Plaintiffs
suggest a number of mechanisms e.g., the appointment of a special
master or statistical sampling for addressing the issue of damages
once the questions of liability are resolved, the Court noted.
However, all class-wide issues of liability have been resolved, and
only individualized questions of causation and injury remain to be
decided. Thus, the very same mechanisms proposed by Plaintiffs
would be superior to a class action trial for conducting the
necessary individualized inquiries.
The Plaintiffs allege that the City of Detroit has operated the DDC
in accordance with policies and customs that have violated the
federal constitutional rights of detainees at the facility. In
their initial complaint, Plaintiffs identified two such
constitutional violations, alleging that detainees were held at the
DDC without a prompt judicial determination of probable cause, and
that the conditions of their confinement were unlawful.[CC]
DIRECTV LLC: Court OK's Creve Coeur's Bid to Consolidate Suits
--------------------------------------------------------------
In the cases, CITY OF CREVE COEUR, MISSOURI, on behalf of itself
and all others similarly situated, Plaintiffs, v. DIRECTV, LLC, et
al., Defendants. AND CITY OF CREVE COEUR, MISSOURI, on behalf of
itself and all others similarly situated, Plaintiffs, v. NETFLIX,
INC., et al., Defendants, Case Nos. 4:18CV1453 RLW, 4:18CV1495 SNLJ
(E.D. Mo.), Judge Ronnie L. White of the U.S. District Court for
the Eastern District of Missouri, Eastern Division, (i) granted
Plaintiff City of Creve Coeur, Missouri's Motion to Consolidate Its
Cases; (ii) denied without prejudice Defendants DISH Network Corp.
and DISH Network L.L.C.'s Motion to Dismiss Complain and
accompanying Request for Oral Argument; (iii) denied without
prejudice Defendant DIRECTV, LLC's Motion to Dismiss; and (iv)
granted the Plaintiff's Motions to Remand to State Court.
The Plaintiff filed two putative class actions on behalf of itself
and similarly situated Missouri political subdivisions seeking
declaratory judgment and other relief against DIRECTV, LLC, DISH
Network Corp. and DISH Network L.L.C. ("Satellite Defendants") in
one case and against Netflix, Inc. and Hulu LLC ("Streaming
Defendants") in the other. In each case, the Plaintiff alleges the
service providers do business within the state but fail to remit
fees as required by the 2007 Video Services Providers Act ("VSPA"),
and local code provisions.
The separate actions against the Satellite Defendants and the
Streaming Defendants were filed on the same day in the Twenty-First
Judicial Circuit of Missouri in St. Louis County. Within days of
each other, both cases were removed to federal court: the case
against Satellite Defendants was assigned to Judge White and the
case against Streaming Defendants was assigned to the Hon. Stephen
N. Limbaugh, Jr.
The Plaintiff now seeks to consolidate the two separate cases.
Pursuant to Local Rule 4.03, the Plaintiff filed its Motion to
Consolidate in the case before Judge White as it bears the lowest
cause number. The Defendants filed Memoranda in Opposition, and
the Plaintiff filed a Joint Reply in Support of Consolidation.
Two days after the Plaintiff filed its Motion to Consolidate, each
Satellite Defendant filed separate Motions to Dismiss. The
Streaming Defendants have also filed Motions to Dismiss in the case
before Judge Limbaugh. In addition, the Plaintiff filed Motions to
Remand to State Court in each case. The motions to dismiss and
motions to remand are all fully briefed.
Judge White finds that the Plaintiff's cases against the Satellite
Defendants and the Streaming Defendants present common issues of
fact or law that warrant consolidation. The cases will clearly
involve similar questions of law related to the interpretation of
the VSPA even if the act applies differently to Satellite
Defendants compared to the Streaming Defendants. Further, any such
differences can be litigated and adjudicated in the same
consolidated action.
He also finds that judicial economy is best served by deciding the
issue of consolidation first in order to avoid potentially
conflicting rulings on the other pending motions. While the Court
has sympathy for the parties and attorneys given the possible
logistical difficulties that might arise coordinating between the
Plaintiff and all the Defendants, cases involving multiple parties
are commonplace in modern corporate litigation and do not outweigh
the risk of conflicting rulings.
Lastly, and significantly, no party will be unfairly inconvenienced
or prejudiced as both cases are at the same stage in litigation
because both cases were initially filed in state court on the same
day, removed to federal court within days of each other, no
Defendant has filed an answer, and no discovery has been exchanged.
Pursuant to Local Rule 4.03, the case against the Streaming
Defendants will be reassigned to the Judge for full disposition.
Having decided to consolidate the separate cases, the Judge now
turns to the Plaintiff's Motions to Remand to State Court.
Assuming arguendo that the jurisdictional requirements for removal
under CAFA are satisfied, the Judge nevertheless declines to
exercise the Court's jurisdiction pursuant to the reasoning of the
Supreme Court in Levin and the decision from another court in the
district in Maryland Heights. Furthermore, in addition to the
principals evident in the doctrine of comity, the strong preference
for the litigation of state tax issues in state courts rather than
in federal courts is reflected in the TIA. Because he concludes
that the doctrine of comity justifies remanding the case to state
court, the Judge declines to rule on the Defendants' separate
pending motions to dismiss.
Based on the foregoing, Judge White granted the Plaintiff's Motion
to Consolidate Its Cases. The Clerk of Court will reassign City of
Creve Coeur, Missouri, et al., v. Netflix, Inc. and Hulu, LLC, No.
4:18CV1495 SNLJ to the Judge for full disposition. The Clerk will
docket a copy of the Memorandum and Order in action before Judge
Limbaugh.
The Judge also granted the Plaintiff's Motions to Remand to State
Court. These matters will be remanded to the Twenty-First Judicial
Circuit of Missouri in St. Louis County for further proceedings. A
separate Order of Remand accompanies the Memorandum and Order.
Finally, the Judge denied without prejudice the remaining motions.
A full-text copy of the Court's Aug. 6, 2019 Memorandum and Order
is available at https://is.gd/NPQRC7 from Leagle.com.
City of Creve Coeur, Missouri, on behalf of itself and all others
similarly situated, Plaintiff, represented by Carl J. Lumley --
clumley@lawfirmemail.com -- CURTIS AND HEINZ, P.C., Elkin L.
Kistner -- elkinkis@bick-kistner.com -- BICK AND KISTNER, PC,
Garrett Ray Broshuis -- gbroshuis@koreintillery.com -- KOREIN AND
TILLERY, LLC, John W. Hoffman -- jhoffman@koreintillery.com --
KOREIN TILLERY LLC & John F. Mulligan, Jr. --
jfmulliganjr@aol.com.
DirecTV, LLC, Defendant, represented by Robert J. Wagner --
rwagner@thompsoncoburn.com -- THOMPSON COBURN, LLP & Roman P.
Wuller -- rwuller@thompsoncoburn.com -- THOMPSON COBURN, LLP.
Dish Network Corp. & Dish Network, L.L.C., Defendants, represented
by Jeffrey L. Schultz -- jschultz@armstrongteasdale.com --
ARMSTRONG TEASDALE LLP, Pantelis Michalopoulos --
pmichalopoulos@steptoe.com -- STEPTOE AND JOHNSON LLP, Jared R.
Butcher -- jbutcher@steptoe.com -- STEPTOE AND JOHNSON LLP, pro hac
vice & Markham C. Erickson -- merickson@steptoe.com -- STEPTOE AND
JOHNSON LLP, pro hac vice.
Netflix, Inc., Consolidated Filer Defendant, represented by Robert
P. Berry -- rberry@berrysilberberg.com -- BERRY AND SILBERBERG PC.
DUN & BRADSTREET: Sidbury Seeks Unpaid Wages & OT for Sales Reps
----------------------------------------------------------------
JEANOLEE SIDBURY, and all others similarly situated, the Plaintiff,
v. DUN & BRADSTREET EMERGING BUSINESSES CORP., and DUN & BRADSTREET
CREDIBILITY CORP., the Defendants, Case No. 1:19-cv-00865-RP (W.D.
Tex., Sept. 4, 2019), seeks to recover unpaid wages and unpaid
overtime pursuant to the Fair Labor Standards Act.
The Plaintiff was employed by Dun & Bradstreet Credibility Corp.
from Feb. 10, 2014, to approximately Dec. 31, 2016. Thereafter, due
to the formation of a new corporate division, Plaintiff was
employed by Dun & Bradstreet Emerging Businesses Corp., from
January 1, 2017, to the present.
The Defendants employed Plaintiff as an inside sales representative
and paid her $13.00 per hour, plus commissions. Some of Plaintiff's
principle duties were to sell software marketed and sold by the
Defendants to businesses throughout the United States.
Throughout the employment of Plaintiff and others similarly
situated, the Defendant repeatedly and willfully violated Sections
7 and 15 of the Fair Labor Standards Act by failing to compensate
Plaintiff at a rate not less than one and one-half times her
regular rate of pay for each hour worked in excess of 40 in a
workweek, the lawsuit says.
Dun & Bradstreet Emerging Businesses Corp. operates as a business
marketing and selling computer software and data services to
business customers. The Defendant employed over 100 inside sales
representatives in various locations throughout the United States.
[BN]
Attorneys for the Plaintiff are:
Charles L. Scalise, Esq.
Daniel B. Ross, Esq.
ROSS SCALISE LAW GROUP
1104 San Antonio Street
Austin, TX 78701
Telephone: (512) 474-7677
Facsimile: (512) 474-5306
E-mail: Charles@rosslawpc.com
E & A PROTECTIVE: Settlement in Martinez Suit Has Prelim Approval
-----------------------------------------------------------------
In the case, RICHARD MARTINEZ, an individual, on behalf of the
State of California, as a private attorney general, Plaintiff, v. E
& A PROTECTIVE SERVICES-BRAVO, LLC, a Virginia Limited Liability
Company; and DOES 1 to 10, inclusive, Defendants, Case No.
1:18-cv-00658-BAM (E.D. Cal.), Magistrate Judge Barbara A.
McAuliffe of the U.S. District Court for the Eastern District of
California granted the Motion for Preliminary Approval of a Class
Action Settlement.
The Motion for Preliminary Approval of a Class Action Settlement
came before the Court on Aug. 1, 2019. Having considered the Motion
and the papers submitted in support thereof, Magistrate Judge
McAuliffe granted preliminary approval of the Settlement and the
Settlement Class based upon the terms set forth in the Joint
Stipulation of Settlement and Release of Class Action.
She approved, as to form and content, the Revised Notice of
Proposed Class Action Settlement and Hearing Date for Court
Approval, except that the Parties will add that any appearance by
the Counsel of a Class Member at the final fairness hearing will be
at the Class Member's own expense, and the Share Form. She
approved the procedure for Class Members to participate in, to opt
out of, and to object to, the Settlement as set forth in the
Stipulation of Settlement.
The Magistrate directed the mailing of the Class Notice, and the
Share Form to the Class Members in accordance with the
Implementation Schedule.
She preliminarily certified the Settlement Class for settlement
purposes only.
Se appointed (i) Plaintiff Richard Martinez as the Class
Representative, (ii) Craig J. Ackermann of Ackermann & Tilajef,
P.C. and Jonathan Melmed of Melmed Law Group P.C. as the Class
Counsel, and (iii) Simpluris, Inc. as the Settlement
Administrator.
The Magistrate ordered the following Implementation Schedule for
further proceedings:
a. Deadline for Defendant to comply with notice provisions of
Class Action Fairness Act - Aug. 11, 2019
b. Deadline for Defendant to Submit ClassMember Information to
Settlement Administrator - Aug. 15, 2019
c. Deadline for Settlement Administrator to Mail Notice to
Class Members - Aug. 29, 2019
d. Deadline for Class Members to Postmark Share Forms with
Challenges - Oct. 28, 2019
e. Deadline for Class Members to Postmark Requests for
Exclusion - Oct. 28, 2019
f. Deadline for Class Members to submit Objections to
Settlement - Oct. 28, 2019
g. Deadline for Settlement Administrator to file Declaration
of Due Diligence and Proof of Mailing - Dec. 16, 2020
h. Deadline for Class Counsel to file Motion for Attorneys'
Fees and Expenses - Oct. 18, 2019
i. Deadline for Class Counsel to file Motion for Final
Approval of Settlement - Dec. 19, 2019
j. Final Approval/Fairness Hearing - Jan. 14, 2020 at 9:00
a.m. (Dept: 8 (BAM))
k. Deadline for Settlement Administrator to mail the
Settlement Awards, Service Award, and PAGA Payments, and to wire
transfer the Attorneys' Fees and Costs (if Settlement is Effective)
- Feb. 14, 2020
l. Settlement Administrator to File Proof of Payment of
Settlement Awards, Enhancement Award, Attorneys' Fees and Costs (if
Settlement is Effective) - May 14, 2020
If any of the dates in the Implementation Schedule falls on a
weekend, bank or court holiday, the time to act will be extended to
the next business day.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/oXIdQn from Leagle.com.
Richard Martinez, an individual, on behalf of the State of
California, as a private attorney general, Plaintiff, represented
by Craig Justin Ackermann -- cja@ackermanntilajef.com -- Ackermann
& Tilajef, PC & Jonathan Melmed -- jm@melmedlaw.com -- Melmed Law
Group P.C.
E&A Protective Services-Bravo, LLC, a Virginia Limited Liability
Company, Defendant, represented by Alecia W. Winfield --
awinfield@littler.com -- Littler Mendelson, P.C. & James Phuc Van
-- jpvan@littler.com -- Littler Mendelson.
EXAMINATION MANAGEMENT: Court OKs $700K Settlement in Gonzalez
--------------------------------------------------------------
The United States District Court for the Southern District of
California issued an Order granting Plaintiff Maria T. Gonzalez's
unopposed Motions for Final Approval of Class Action Settlement in
the case captioned MARIA T. GONZALEZ, on Behalf of Herself and All
Others Similarly Situated, Plaintiff, v. EXAMINATION MANAGEMENT
SERVICES, INC., a Nevada Corporation; LABORATORY CORPORATION OF
AMERICA HOLDINGS, a Delaware Corporation; SOKO UNITED CORP., a
California Corporation; and DOES 1-10, inclusive, Defendants.
EXAMINATION MANAGEMENT SERVICES, INC., a Nevada Corporation,
Third-Party Plaintiff, v. SOKO UNITED CORP., a California
Corporation, Third-Party Defendant. Case No. 17-CV-1077 JLS (JLB).
(S.D. Cal.).
The Plaintiff alleged the Defendants improperly classified her and
other phlebotomists as independent contractors. The Plaintiff
further alleged that this misclassification caused damages under
several provisions of both federal and state law, including damages
for failure to pay minimum wage, failure to provide accurate wage
statements, and failure to provide timely payment of all wages upon
discharge.
Proposed Settlement Class
The Proposed Settlement Class is defined to include all Persons,
regardless of specific title, who currently work for, or previously
worked for, Soko as a phlebotomist, examiner, and/or PST Specialist
who also worked at a LapCorp location pursuant to the Independent
Contractor Agreement between Soko and EMSI, and/or the Provider
Agreement between EMSI and LapCorp, at any time during the period
of May 24, 2013 through the date of the Preliminary Approval
Order.
Proposed Monetary Relief
The Proposed Settlement Agreement provides for $700,000 in Gross
Settlement Proceeds, Proposed Settlement Agreement (a) used to pay:
(1) $175,000 in attorneys' fees (2) $5,000 in litigation expenses
(3) $6,500 in administrative expenses (4) $5,000 for the Class
Representative Service Award (5) $10,000 for payment to the
California Labor and Workforce Development Agency (LWDA) pursuant
to [the Private Attorneys General Act (PAGA) and (6) the remainder
$498,500 used to pay the Settlement Class Members (Net Settlement
Proceeds).
Class Certification
Before granting final approval of a class action settlement
agreement, the Court must first determine whether the proposed
class can be certified.
In the present case, the Court previously certified the settlement
class for purposes of settlement only. No additional facts have
come to light to disturb the logic of that Order. Accordingly, the
Court reaffirms and incorporates by reference its prior analysis
under Rules 23(a) and (b)(3) as set forth in its Preliminary
Approval Order.
Adequacy of Notice
The Court must also determine that the Class received adequate
notice. Adequate notice is critical to court approval of a class
settlement under Rule 23(e).
In its Preliminary Approval Order, the Court preliminarily approved
the Parties' proposed notice and notice plan. As part of her Final
Approval Motion, Plaintiff filed the Declaration of Elizabeth
Kruckenberg, who is the Director of Case Management at Phoenix
Settlement Administrators (PSA), the Court-appointed Class Action
Settlement Administrator. In her declaration, Ms. Kruckenberg
details the actions taken by PSA to provide notice in accordance
with the Notice Plan. Having reviewed Ms. Kruckenberg's
declaration, the Court finds that the Settlement Class received
adequate notice of the Settlement.
Fairness of the Settlement
The Court must next determine whether the proposed settlement is
fair, reasonable, and adequate pursuant to Federal Rule of Civil
Procedure 23(e)(1)(C). Factors relevant to this determination
include:
The strength of the plaintiffs' case; the risk, expense,
complexity, and likely duration of further litigation; the risk of
maintaining class action status throughout the trial, the amount
offered in settlement, the extent of discovery completed and the
stage of the proceedings, the experience and views of counsel, the
presence of a governmental participant and the reaction of the
class members to the proposed settlement.
In its Preliminary Approval Order, the Court addressed each of the
Hanlon factors in turn and found that all of the pertinent factors
weighed in favor of approving the Settlement. Since then, no Class
Member has filed an objection and only three Class Members have
opted out of the Settlement. Because no pertinent facts have
changed, the Court reaffirms and incorporates by reference its
analysis of the Rule 23(e) requirements as set forth in its
Preliminary Approval Order. Accordingly, the Court finds the
settlement to be fair, reasonable, and adequate pursuant to Federal
Rule of Civil Procedure 23(e).
Because all of the pertinent factors here weigh in favor of
approving the Settlement, the Court grants the Plaintiff's Final
Approval Motion.
A full-text copy of the District Court's August 27, 2019 Order is
available at https://tinyurl.com/y2qyfenk from Leagle.com.
Maria T. Gonzalez, on Behalf of Herself and All Others Similarly
Situated, Plaintiff, represented by Aaron M. Olsen --
aarono@haelaw.com -- Haeggquist & Eck, LLP & Alreen Haeggquist --
alreenh@haelaw.com -- Haeggquist & Eck, LLP.
Examination Management Services, Inc., a Nevada Corporation,
Defendant, represented by John R. Herring --
john.herring@nortonrosefulbright.com -- Norton Rose Fulbright US
LLP, pro hac vice, Richard S. Krumholz --
richard.krumholz@nortonrosefulbright.com -- Norton Rose Fulbright
US LLP, pro hac vice & Robert M. Dawson, Norton Rose Fulbright US
LLP.
Laboratory Corporation of America Holdings, a Delaware Corporation,
Defendant, represented by Kimberly C. Carter --
kcarter@kelleydrye.com -- Kelley Drye & Warren LLP.
Soko United Corp., a California Corporation, Defendant, represented
by Kevin James Abbott -- kabbott@lobbplewe.com -- Lobb & Cliff, LLP
& Uliana A. Kozeychuk -- ukozeychuk@littler.com -- Littler
Mendelson, P.C.
FACEBOOK INC: EFF Weighs In On Biometric class Action Ruling
------------------------------------------------------------
Eric Weiss, writing for FindBiometrics, reports that the Electronic
Frontier Foundation has weighed in on the recent Appellate Court
ruling that cleared the way for a class action lawsuit against
Facebook. The lawsuit alleges that Facebook gathered biometric
information from users without achieving proper consent.
The facts of the case haven't changed since earlier reports, but
the EFF's breakdown does help explain why the lawsuit is so
significant. The digital rights group called particular attention
to the "private right of action" clause in the Illinois Biometric
Information Privacy Act (BIPA), which allows any private individual
to bring a lawsuit against a corporation that violates their
rights. Without that clause, enforcement would rest in the hands of
state regulators that may not make such incidents a priority.
The private right of action lets individuals make the decision to
defend themselves. That makes it much more likely that corporate
violations will end up in court, and that the organizations
committing those violations will be held accountable.
That's why the EFF argues that BIPA is currently one of the most
important pieces of American privacy legislation, and should be the
template for similar bills in other states. However, the EFF does
warn against the threat of weak Federal legislation, noting that
big tech companies may push for more favorable laws that preempt
strong state laws like those on the books in California and
Illinois.
The organization also re-emphasized the importance of court rulings
that have held that biometric privacy violations represent
substantial harm in and of themselves, which gives plaintiffs more
standing to bring a case to federal court. [GN]
FERGUSON, MO: Court Denies Bid to Dismiss Fant Suit
---------------------------------------------------
In the case, KEILEE FANT, et al., Plaintiffs, v. THE CITY OF
FERGUSON, Defendant, Case No. 4:15-CV-00253-AGF (E.D. Mo.), Judge
Audrey G. Fleissig of the U.S. District Court for the East District
of Missouri, Eastern Division, denied both the Defendant's (i)
motion to dismiss Counts I through III and V through VII, and (ii)
motion for a hearing.
The Plaintiffs in the putative class action claim that they have
been jailed by the Defendant, the City of Ferguson, on numerous
occasions because they were unable to pay cash bonds or other debts
resulting from their traffic and other minor offenses. They allege
that, in violation of the United States Constitution and as a
matter of the City's policies and practices, they were not afforded
counsel, any inquiry into their ability to pay, or a neutral
finding of probable cause in a prompt manner; and they were held in
jail indefinitely, in overcrowded and unsanitary conditions, until
they or their friends or family members could make a monetary
payment sufficient to satisfy the City, as part of a broad,
revenue-generating scheme.
The Plaintiffs' amended complaint asserts seven claims pursuant to
42 U.S.C. Section 1983, under the Fourth, Sixth, and Fourteenth
Amendments. They seek compensatory damages as well as declaratory
and injunctive relief.
The City moves to dismiss, for failure to join a party under
Federal Rule of Civil Procedure 19, all claims in the Plaintiffs'
first amended complaint except the claim relating to conditions of
confinement (Count IV). This is the fourth motion to dismiss filed
by the City in this now four-year-old case. The motion asserts
arguments similar to those raised in prior motions but reframes
them in terms of Rule 19.
In short, the City argues that the Plaintiffs' constitutional
challenges are directed solely to the conduct of the Ferguson
Municipal Court, which the City argues is a separate entity, and
that the municipal court is therefore required to be joined as a
co-defendant under Rule 19(a).
But the City argues that joinder is not feasible because the
municipal court is an arm of the state under Missouri law and, as
such, entitled to sovereign immunity. It contends that because
there is a potential for injury to the interests of the municipal
court and because the municipal court is immune from suit,
dismissal of the claims at issue is required under Rule 19(b).
Judge Fleissig concludes that the municipal court (perhaps more
properly referenced as the municipal division) is not a required
party under Rule 19(a). Rule 19(a)(1)(A)'s condition that a court
be able to accord complete relief does not mean that every type of
relief sought must be available, only that meaningful relief be
available.
In the case, Court is able to accord meaningful relief to the
Plaintiffs without joinder of the municipal court. The Plaintiffs
seek money damages from the City, a declaration that the City
violated their constitutional rights, and an injunction enjoining
the City from enacting and enforcing its allegedly unlawful
policies and customs. The Court may provide such relief to the
extent that the Plaintiffs' claims prove to be viable and
meritorious. The City's argument that the municipal court, and not
the City, caused the alleged constitutional violations may be a
reason to deny relief on the Plaintiffs' claims, but it does not
support a finding under Rule 19(a)(1) that joinder of the municipal
court is required.
Likewise, under Rule 19(a)(1)(B), even assuming that the municipal
court has an interest relating to the subject of the action, the
Judge holds that the disposition of the action in the municipal
court's absence will not as a practical matter impair or impede the
municipal court's ability to protect its interest. She finds that
none of the Plaintiffs' claims requires a showing that the
municipal court acted illegally. Rather, for the Plaintiffs to
succeed on their claims, they must demonstrate that the City acted
unlawfully.
Nor would the municipal court's absence subject the City to a
substantial risk of incurring double or otherwise inconsistent
obligations. The City's own argument supports such a holding. The
City asserts that, as a matter of law, it cannot be held liable for
the municipal court's conduct. If the City is correct, and if the
actions complained of were caused by the municipal court, then the
Plaintiffs' claims may fail on the merits. But resolution of these
issues does not require the municipal court's joinder. Because the
municipal court is not a required party under Rule 19(a), the Judge
need not address whether dismissal is required under Rule 19(b).
The City's motion must be denied. In light of the extensive
briefing submitted on these issues, oral argument is unnecessary.
For the reasons set forth, Judge Fleissig denied both the
Defendant's (i) motion to dismiss Counts I through III and V
through VII, and (ii) motion for a hearing.
A full-text copy of the Court's Aug. 6, 2019 Memorandum and Order
is available at https://is.gd/Ojdz8o from Leagle.com.
Keilee Fant, individually and on behalf of all others similarly
situated, Roelif Carter, Allison Nelson, Herbert Nelson, Jr.,
Alfred Morris, Anthony Kimble, Donyale Thomas, Shameika Morris,
Daniel Jenkins, Ronnie Tucker & Tonya DeBerry, Plaintiffs,
represented by Alexander G. Karakatsanis --
alec@equaljusticeunderlaw.org -- CIVIL RIGHTS CORPS, Andrew
Ernest Tomback -- andrew.tomback@whitecase.com -- WHITE AND CASE,
pro hac vice, Brendan D. Roediger -- broedige@slu.edu -- ST.
LOUIS UNIVERSITY SCHOOL OF LAW, John J. Ammann --
ammannjj@slu.edu -- ST. LOUIS UNIVERSITY SCHOOL OF LAW, Michael-
John Voss -- mjvoss@archcitydefenders.org -- ARCHCITY DEFENDERS,
Thomas B. Harvey -- tharvey@archcitydefenders.org -- ARCHCITY
DEFENDERS, Alice Tsier -- atsier@whitecase.com -- WHITE AND CASE,
pro hac vice, Blake Alexander Strode --
bstrode@archcitydefenders.org -- ARCHCITY DEFENDERS, Dorian K.
Panchyson, WHITE AND CASE, pro hac vice, Lawrence Crane
Moscowitz, WHITE AND CASE, pro hac vice, Margaret Jane Spicer,
WHITE AND CASE, pro hac vice, Martin Bingham Sawyer, WHITE AND
CASE, pro hac vice, Nthaniel Richard Carroll --
ncarroll@archcitydefenders.org -- ARCHCITY DEFENDERS, Sima Atri,
ARCHCITY DEFENDERS, Sonia Williams Murphy --
smurphy@whitecase.com -- WHITE AND CASE, pro hac vice & Vivake
Prasad, WHITE AND CASE, pro hac vice.
City of Ferguson, Missouri, Defendant, represented by John
Michael Reeves, Jr. -- jreeves@brinkerdoyen.com -- Brinker &
Doyen, L.L.P., Aarnarian (Apollo) D. Carey --
acarey@lewisrice.com -- LEWIS RICE, LLC, Jeffrey J. Brinker --
jbrinker@brinkerdoyen.com -- BRINKER AND DOYEN LLP, Maurice B.
Graham, GRAY AND RITTER, P.C., Michelle V. Stallings --
MVS@brinkerdoyen.com -- BRINKER AND DOYEN LLP & Ronald A. Norwood
-- rnorwood@lewisrice.com -- LEWIS RICE, LLC.
FIRSTSOURCE ADVANTAGE: Court OKs Dismissal of Perdomo FDCPA Suit
----------------------------------------------------------------
The United States District Court for the Eastern District of New
York issued an Opinion and Order granting Defendant’s Motion to
Dismiss in the case captioned DORALIZA PERDOMO, individually and on
behalf of others similarly situated, Plaintiff, v. FIRSTSOURCE
ADVANTAGE, LLC, Defendant. No. 19-cv-03546-ARR-SJB. (E.D.N.Y.).
Plaintiff Doraliza Perdomo brings this putative class action
against defendant Firstsource Advantage, LLC, a debt collector.
Plaintiff alleges that defendant violated the Fair Debt Collection
Practices Act (FDCPA) by sending her a false, deceptive or
misleading debt collection letter.
On a motion to dismiss under Rule 12(b)(6), the court must accept
all factual allegations in the complaint as true and must draw all
reasonable inferences in favor of the non-moving party.Thus, in
deciding defendants' motion to dismiss, the court must accept the
facts alleged in plaintiff's amended complaint as true. The
complaint's allegations must be enough to raise a right to relief
above the speculative level.
Under the FDCPA, a debt collector may not use any false, deceptive,
or misleading representation or means in connection with the
collection of any debt. Specifically, a debt collector may not
falsely represent the character, amount, or legal status of any
debt. Nor may a debt collector use any false representation or
deceptive means to collect or attempt to collect any debt or to
obtain information concerning a consumer.
Here, the alleged ambiguity stems primarily from the letter's
statement that "If you pay $273.56 by 08-24-18, we will consider
your account settled and collection efforts will stop on the
remaining balance.”
According to plaintiff, this phrasing is ambiguous because it fails
to state whether the payment must be sent by the consumer, or
received by the Defendant, by the stated deadline. In plaintiff's
view, the letter could have two interpretations: (1) the payment
must be sent by 08-24-18, or (2) the payment must be received by
08-24-18.
Defendant argues first, that the letter is not false, deceptive or
misleading. Defendant states "Only a consumer in search of an
ambiguity, and not the least sophisticated consumer relevant here,
would interpret the payment date in the manner advocated for by
Plaintiff." Defendant further notes that the mailbox rule requires
the debt collector to accept any payment sent by the payment date
as a matter of law.
Second, defendant argues that to the extent there is any ambiguity
in the letter, there is no FDCPA violation because the ambiguity is
not material. To be actionable under the FDCPA, an alleged
misleading statement must have the potential to affect the
decision-making process of the least sophisticated consumer.
Here, the purported ambiguity would affect only the payment mailing
date by a few days, not the consumer's decision-making process with
regards to accepting or rejecting the discount offer. Furthermore,
defendant states that the ambiguity could not be material because
both interpretations of the term by 08-24-18 lead to the same
result: the payment would be legally accepted as timely by
Defendant.
Plaintiff fails to address the most important flaw defendant
identifies with the complaint: even if the letter is ambiguous, it
is not materially misleading. To the extent the payment deadline
provided in the letter is ambiguous, plaintiff has not pointed to
any reason why this ambiguity would be material. An ambiguity that,
in the worst-case scenario, would lead a consumer to mail her
payment a few days earlier than necessary does not rise to the
level of a materially misleading statement. Because there is no
material misrepresentation at issue in this case, plaintiff has
failed to state a claim under the FDCPA.
The Court grants defendant's motion to dismiss.
A full-text copy of the District Court's August 28, 2019 Opinion
and Order is available at https://tinyurl.com/y25tag25 from
Leagle.com.
Doraliza Perdomo, individually and on behalf of all others
similarly situated, Plaintiff, represented by David M. Barshay,
Barshay Sanders, PLLC, Jonathan Mark Cader, Barshay Sanders, PLLC &
Craig B. Sanders, Barshay Sanders, PLLC. 100 Garden City Plz Ste
500, Garden City, NY 11530-3207
Firstsource Advantage, LLC, Defendant, represented by Andrew Philip
Kates, SEGAL MCCAMBRIDGE SINGER & MAHONEY, LTD. & Howard A. Fried,
Segal McCambridge Singer & Mahoney, Ltd., 850 3rd Ave Ste 1100, New
York, NY, 10022-6222
FORCE SERVICES: Court Enters Judgment in Ruiz FLSA/NYLL Suit
------------------------------------------------------------
In the case, EDWIN RUIZ and JOSE CAMBIZACA GOMEZ, on behalf of
themselves, FLSA Collective Plaintiffs, and the Class, Plaintiffs,
v. FORCE SERVICES, LLC and LUIS FALCIANO, Defendants, Case No.
16-CV-6729 (JPO) (S.D. N.Y.), Judge J. Paul Oetken of the U.S.
District Court for the Southern District of New York granted in
part and denied in part the Plaintiffs' motion for an entry of
judgment against the Defendants, as well as an award of attorney's
fees.
The Plaintiffs initiated the putative class action on Aug. 25,
2016, alleging that the Defendants, their former employers,
violated Fair Labor Standards Act ("FLSA") and the New York Labor
Law ("NYLL") by, among other things, keeping false time records to
avoid paying overtime wages. The matter ultimately settled, and on
Dec. 4, 2017, the Court certified a settlement class, approved the
parties' proposed class settlement, and dismissed the case with
prejudice.
Under the terms of the Settlement, Defendants agreed to pay a total
of $300,000 into a settlement fund for eventual distribution to
class counsel, the fund administrator, and the class members. The
Defendants were to pay the sum in 31 installments: an initial
installment of $50,000 to be paid by March 10, 2017, and then,
beginning on Aug. 1, 2017, 30 additional monthly installments of
$8,333.33 each. In exchange, the Plaintiffs agreed that each class
member who did not opt out would release certain claims against
Defendants, including the FLSA and NYLL claims asserted in the
case.
All did not go according to plan, however. By May 19, 2019, the
Defendants had put only $133,333.30 into the settlement fund.
According to the Defendants, their lapse in making the required
installment payments was due to "severe financial distress" that
has caused Defendant Force Services to cease operations. The
Defendants further maintain that they have offered to pay monthly
minimal payments to the Plaintiffs, but that Plaintiffs have
rejected it.
The Plaintiffs have now filed a motion seeking (1) judgment against
the Defendants in the amount of the unpaid $166,666.70 portion of
the settlement fund and (2) attorney's fees in the amount of $3,300
to compensate the Plaintiffs' counsel for their efforts to enforce
the Settlement. The Defendants oppose the motion, and the
Plaintiffs have waived the opportunity to file a reply.
Judge Oetken concludes that the Plaintiffs are entitled to a
judgment that the Defendants are liable to pay all past-due
installments into the settlement fund. That said, those past-due
installments do not add up to the full amount the Plaintiffs now
seek. Although they contend that the entire unpaid balance of the
$300,000 settlement fund -- i.e., $166,666.70 -- "remains due and
owing," the Settlement does not contain an acceleration clause
providing for the entire balance of the Defendants' liability to be
due upon the default of any one installment. The Plaintiffs,
therefore, are entitled to recover only the amount of the
installments past due at the time of judgment.
Under the terms of the Settlement, the Defendants as of today
should have paid the initial $50,000 installment (due on March 10,
2017) and twenty-five of the subsequent monthly installments of
$8,333.33 each (due to begin on Aug. 1, 2017). In other words, had
the Defendants been honoring their obligations under the
Settlement, they would by now have paid $258,333.25 into the
settlement fund. Because the Defendants have instead paid only
$133,333.30, the amount of their current liability is $124,999.95.
As explained, the Plaintiffs are entitled to a judgment that this
sum is owed to the settlement fund.
Finally, the Plaintiffs request an award of the attorney's fees
they have incurred in seeking to enforce the Settlement. But New
York law does not permit fee-shifting in breach of contract cases,
unless specifically provided in the contract, and the Plaintiffs
point to nothing in the Settlement that entitles them to a fee
award. Instead, they claim only that they are entitled to
attorney's fees because both the FLSA and NYLL are fee shifting
statutes. This argument, however, overlooks that the Plaintiffs
have already relinquished their FLSA and NYLL claims in exchange
for the specific set of contractual guarantees contained in the
Settlement. And those guarantees, the Judge holds, do not include
an entitlement to recoup any amounts spent in attempting to enforce
the Settlement's terms. He therefore sees no basis for awarding
the Plaintiffs attorney's fees incurred in connection with the
present motion.
For the foregoing reasons, Judge Oetken granted in part and denied
in part the Plaintiffs' motion for entry of judgment and an award
of attorney's fees. Specifically, he denied the Plaintiffs' motion
for attorney's fees but granted in part their motion for entry of
judgment. He concludes that the Plaintiffs are entitled to entry
of a judgment that the Defendants are presently liable to pay
$124,999.95 into the settlement fund created in the matter, and
that the Defendants will continue to be liable to pay additional
monthly installments of $8,333.33 each into the settlement fund as
provided for under the Settlement.
The Clerk of Court is directed to close the motion at Docket Number
55 and to enter judgment against the Defendants as set forth in the
Opinion.
A full-text copy of the Court's Aug. 2, 2019 Opinion and Order is
available at https://is.gd/igOspd from Leagle.com.
Edwin Ruiz, on behalf of themselves, FLSA Collective Plaintiffs and
the Class & Jose Cambizaca Gomez, on behalf of themselves, FLSA
Collective Plaintiffs and the Class, Plaintiffs, represented by
Anne Melissa Seelig -- anne@leelitigation.com -- Lee Litigation
Group, PLLC & C.K. Lee -- cklee@leelitigation.com -- Lee Litigation
Group, PLLC.
Force Services, LLC & Luis Falciano, Defendants, represented by
Patrick V. Deiorio, The Vincent A. Deiorio Law Firm & Vincent
Gelardi -- vg@vincentgelardi.com -- Gelardi & Randazzo LLP.
FORD MOTOR: Dismissal of Hiring Discrimination Suit Partly Vacated
------------------------------------------------------------------
The United States Court of Appeals, Seventh Circuit, issued an
Opinion vacating in part and affirming in part the District Court's
judgment granting Defendants' Motion to Dismiss in the case
captioned MARTIN CHAIDEZ, et al., Plaintiffs-Appellants, v. FORD
MOTOR COMPANY, et al., Defendants-Appellees. No. 18-2753. (7th
Cir.).
The plaintiffs, on behalf of themselves and those similarly
situated, allege a racially discriminatory hiring scheme that has
resulted in a lack of Hispanic and Latino line workers at Ford
Motor Company's Chicago assembly plant.
The district court dismissed the complaint in its entirety, holding
the allegations in the complaint were inconsistent with, and
contradictory to, the allegations in the EEOC charges. The district
court focused on the apparent contradiction between the charges'
allegation that Hispanic applicants are allowed to take
pre-employment tests and the complaint's allegation that Hispanic
applicants are never allowed to begin pre-employment testing.
Thus, the district court held the claims in the complaint were not
like or reasonably related to the claims in the charges. Therefore,
the plaintiffs failed to exhaust their administrative remedies. The
court dismissed the entire case on that basis.
The Court reviews a district court's decision to dismiss a
complaint de novo, accepting as true the complaint's well-pleaded
allegations and drawing all reasonable inferences in the
plaintiffs' favor.
The plaintiffs raise three issues on appeal.
First, they argue the district court erred by concluding the
complaint's claims were not like or reasonably related to the
claims made in the EEOC charges.
Second, they assert their complaint states plausible claims for
relief sufficient to survive a Rule 12(b)(6) motion to dismiss.
Third, they contend the district court abused its discretion by not
allowing the plaintiffs to amend their complaint before dismissal.
Failure to Exhaust Administrative Remedies
The main issue presented in this case is whether the claims
asserted in the plaintiffs' complaint are like or reasonably
related to the claims they asserted in their EEOC charges.
Before bringing a Title VII claim, a plaintiff must first exhaust
his administrative remedies by filing charges with the EEOC and
receiving a right to sue letter. After doing so, a plaintiff filing
suit in federal court may bring only those claims that were
included in her EEOC charge, or that are like or reasonably related
to the allegations of the charge and growing out of such
allegations. This requirement has two purposes: first, it allows
the EEOC and the employer an opportunity to settle the matter, and
second, it ensures that the employer has adequate notice of the
conduct the employee is challenging.
When the plaintiffs submitted their charges to the EEOC, they
identified a specific discriminatory scheme: Hispanic and Latino
applicants are made to take a basic skills test that at least some
other applicants are not required to take, and those who pass this
testing phase are thereafter stalled by Ford employees during the
hiring process or simply not hired. The charges each alleged
Hispanic and Latino individuals are allowed to begin testing,
indicating the discrimination occurs either through the testing
itself or thereafter. The fact that six of the seven plaintiffs did
not allege they proceeded to testing does not change the clear
focus of the express allegations on the test and post-test hiring
process. The conduct of which Ford was notified, and of which the
EEOC and Ford had an opportunity to seek settlement, was focused on
the test and the post-test hiring process.
Next, the Court turn to the claims and allegations of the
plaintiffs' complaint. In Count I of the complaint, the plaintiffs
claim a scheme of discrimination that focuses on the pre-test
application process, including new claims that Hispanic and Latino
applicants' contact information is destroyed or interfered with by
employees at the Harvey unemployment office.
Count I alleges Hispanic and Latino applicants are never allowed to
begin pre-employment testing. This was not the misconduct of which
the EEOC charges placed Ford on notice or provided an opportunity
for settlement.
The plaintiffs are not saved by the charges' allegation that
applications are in some instances stalled in some other way. The
charges alleged it was only in the event that Hispanic applicants
do pass basic skills testing that their applications are stalled in
some other way. Thus, this allegation can only be understood to
refer to the post-test hiring process at Ford. The plaintiffs
cannot use this single sentence to shoehorn into their EEOC charges
new claims about pre-test mishandling of applications at the
unemployment office.
However, Count II describes conduct that is consistent with the
conduct described in the charges. Count II alleges a disparate
impact upon Hispanic and Latino applicants caused by the skills
test.
By comparison, the charges also alleged, in part, that the basic
skills test caused a disparate impact on Hispanic and Latino
applicants. Count II implicates the same individuals as the
charges: Ford and Millender. Like the charges, Count II only
references the unemployment office's role in the hiring process
generally, and that Ford hires line workers almost exclusively
through that office. The claims and allegations included in Count
II are consistent with the claims and allegations in the charges.
In sum, Count I's new claims of pre-test discrimination are not
included in the EEOC charges. They are, at best, incongruent with
the allegations made in the charges at worst, directly
contradictory. Thus, the claims are not like or reasonably related
to the claims in the EEOC charges, and the district court properly
dismissed them on that basis. However, the complaint expressly
asserts the pre-test discrimination as an alternative" theory.
Count II asserted a claim that was included in the EEOC charges:
namely, the disparate impact of the basic skills test.
That claim was properly exhausted before the EEOC, and therefore
Count II should not have been dismissed.
Adequacy of the Complaint
Because the district court dismissed the suit for failure to
exhaust administrative remedies, the court did not address whether
the complaint stated plausible claims for relief sufficient to
survive a 12(b)(6) motion. However, we may affirm the judgment on
any basis within the record.
Ford urges the Court to hold, in the alternative to holding that
the plaintiffs failed to exhaust their administrative remedies,
that the plaintiffs failed to state plausible claims for relief.
To survive a motion to dismiss, a plaintiff must state a claim to
relief that is plausible on its face. Since the Court affirms the
dismissal of Count I, the Court focus only on the adequacy of the
plaintiffs' Count II disparate-impact claim.
To plausibly state a disparateimpact claim under Title VII, a
plaintiff must demonstrate the defendant has established an
employment practice that causes a disparate impact on the basis of
race, color, religion, sex, or national origin.
The Court note that although the discriminatory conspiracy
described in Count I is quite complex, Count II's claim is more
straightforward. It alleges Ford's pre-employment testing process
has created a racially disproportionate workforce and a dearth of
Hispanic or Latino workers. Count II alleges the racial makeup of
Ford's workforce is not consistent with the racial demographics of
the areas surrounding the Ford plant.
It alleges Ford's workforce is primarily black and lacks more than
even a small percentage of Hispanic and Latino workers. It
identifies the pre-employment testing process as the employment
practice that has resulted in this disproportionate lack of
Hispanic and Latino line workers. The plaintiffs also attached as
exhibits to their complaint several photographs of the most recent
classes of new hires at the Chicago plant as support for their
factual allegations regarding the racial makeup of Ford's
workforce.
Ford may present contrary evidence at the summary judgment stage or
at trial to show there is no suspect racial disparity, and the
plaintiffs, for their part, will need to utilize the discovery
process to support their allegations with statistical and
comparative evidence.
Ford may also defeat the plaintiffs' claim by demonstrating the
pre-employment testing process is job-related and consistent with
business necessity. But the plaintiffs' basic allegations regarding
the disparity between the racial makeup of Ford's workforce and the
surrounding area are sufficient to survive a motion to dismiss.
Accordingly, the Seventh Circuit affirms the district court's
dismissal of Count I but modifies the judgment to be without
prejudice, and the Court vacates the dismissal of Count II and
remands to the district court for further proceedings consistent
with this opinion.
A full-text copy of the Seventh Circuit's August 28, 2019 Opinion
is available at https://tinyurl.com/y57f2rve from Leagle.com.
Kristi L. Browne -- kbrowne@pattersonlawfirm.com -- for
Plaintiff-Appellant.
Stephen Anthony Yokich, 8 South Michigan Avenue, 19th Floor,
Chicago, IL 60603, for Defendant-Appellee.
James M. Tucker, for Amicus Curiae.
Kathleen Marie Nemechek, Berkowitz Oliver LLP, 2600 Grand Blvd Ste
1200, Kansas City, MO, 64108-4626, for Defendant-Appellee.
Eugene Scalia, for Defendant-Appellee.
Peter J. Evans, Skawski Law Offices, LLC, 1400 16th StreetSuite
260Oak Brook, IL 60523, for Plaintiff-Appellant.
James L. Bizzieri, Bizzieri Law Offices, 10258 S. Western Avenue,
Suite #210, Chicago, IL 60643, for Plaintiff-Appellant.
Molly Senger -- msenger@gibsondunn.com -- for Defendant-Appellee.
Matthew Gregory, for Defendant-Appellee.
GERAWAN FARMING: $5MM Settlement in Amaro Suit Has Prelim Approval
------------------------------------------------------------------
In the case, RAFAEL MARQUEZ AMARO, et al., Plaintiffs, v. GERAWAN
FARMING, INC, et al., Defendants, Case No. 1:14-cv-00147-DAD-SAB
(E.D. Cal.), Judge Dale E. Drozd of the U.S. District Court for the
Eastern District of California granted the Plaintiffs' motion for
preliminary approval of class action settlement.
The Plaintiffs are former employees who worked as field workers for
the Defendants. The Defendants grow and harvest grapes, oranges,
and various stone fruits in California. They employ seasonal
workers such as the Plaintiffs -- who are fired at the end of each
harvest and are subsequently rehired for the next harvest -- to
assist with "preparing trees and vines" and with harvesting fruit.
The Defendants pay crew laborers on either an hourly basis, a
piece-rate basis, or a mixed basis. Piece-rate payment for picking
ranged between $2.50 and $5 per tub, and piece-rate payment for
packing ranged between $1 and $2 per box. Field marking is also
compensated on a piece-rate basis, generally at five cents per mark
tied. Crew laborers could transition from hourly to piece-rate
payment over the course of a single day.
In accordance with California Labor Code Section 226.7 and
Industrial Welfare Commission ("IWC") Wage Order 14-2001, the
Defendants allowed employees to take 10-minute rest breaks for
every four-hour period worked, or major fraction thereof. They
conducted audits to ensure employees were being offered rest
breaks. According to the Defendants, they implemented a
substantial wage policy change in October 2013 and began to
compensate piece-rate employees for rest periods separate from
those employees' piece-rate earnings. Beginning in 2013,
piece-rate employees were paid for earned 10-minute rest periods at
a rate of $10 per hour. The Defendants increased the amount to $11
per hour in 2014 and to each employee's average hourly piece-rate
in 2015.
On Feb. 3, 2014, the Plaintiffs filed a complaint against the
Defendants, alleging violations of the Migrant and Seasonal
Agricultural Worker Protection Act ("AWPA"), as well as various
California labor laws. More specifically, the Plaintiffs asserted
the following state law claims: (1) failure to pay overtime and all
wages due under California Labor Code Sections 1194 and 1198; (2)
failure to pay minimum wages under California Labor Code Section
1194; (3) failure to compensate for rest breaks under California
Labor Code Section 226.7 and IWC Wage Order 14-2001; (4) failure to
pay wages due to the Plaintiffs and the potential class members
upon being discharged under California Labor Code Section 203; and
(5) for violation of California's Unfair Competition Law under
California Business and Professions Code Sections 17200 et seq.
On May 20, 2016, the Court granted the Plaintiffs' motion for class
certification pursuant to Federal Rule of Civil Procedure 23. It
certifies the following subclasses:
a. Piece-Rate Subclass I: All individuals who have been
employed, or are currently employed, by the Defendants as a
non-exempt field worker or similar titles, who were paid a
piece-rate from Feb. 3, 2010 up to October 2013.
b. Piece-Rate Subclass II: All individuals who have been
employed, or are currently employed, by the Defendants as a
non-exempt field worker or similar titles, who were paid a
piece-rate from October 2013 up to the present.
c. Minimum Wage Subclass: All individuals who have been
employed, or are currently employed, by the Defendants as a
non-exempt field worker or similar titles, who were paid a
piece-rate from Feb. 3, 2010 to the present, whose compensation for
any shift totaled less than the minimum wage.
d. Former Employee Subclass: All individuals who have been
employed, or are currently employed, by Defendant Gerawan as a
non-exempt field worker or similar titles, who were paid a
piece-rate from Feb. 3, 2010 to the present, who were laid off at
the end of a season.
On June 3, 2016, the Defendants filed a motion for reconsideration
of the Court's order granting the Plaintiffs' motion for class
certification. The Court denied the motion for reconsideration on
Aug. 23, 2016 and subsequently ordered the parties to meet and
confer regarding the form and manner of class notice.
On Sept. 16, 2016, the Court approved the form and manner of class
action notice proposed by the parties on Sept. 12, 2016. On Sept.
20, 2016, the Defendants filed a motion to stay the action pending
resolution of their Rule 23(f) petition to the Ninth Circuit. The
Court denied the motion to stay and ordered defendants to provide
the class list to Rust Consulting, Inc. and directed that notice to
all class members be mailed within 21 days of the date of that
order. The Ninth Circuit denied the Defendants' Rule 23 (f)
petition on Nov. 16, 2016.
On Nov. 7, 2016, Rust Consulting, Inc. mailed notices to class
members, which produced a certified class list consisting of 6,417
class members who did not opt out of the class. Thereafter, the
parties conducted extensive discovery. By May 2017, the Defendants
had produced time and pay data for all 6,417 class members, which
the class counsel submitted to their expert for analysis. On Nov.
29, 2018, the parties participated in a private mediation with
mediator Francis J. "Tripper" Ortman III, which resulted in a
settlement agreement.
Under the proposed settlement agreement, the Defendants would pay a
maximum settlement amount of $5 million. The agreement provides
the following allocation of that payment: (i) attorneys' fees of
one-third, or $1.5 million, to be paid to the class counsel; (ii)
litigation costs not to exceed $85,000, to be paid to the class
counsel; (iii) estimated settlement administration fees not to
exceed $30,000 to be paid to the administrator Rust Consulting,
Inc.; (iv) class representative incentive award of $20,000, with
$10,000 to be paid to each named Plaintiff; and (v) the remaining
estimated net settlement amount of $3,365,000 to be distributed to
class members.
The settlement is non-reversionary, and unclaimed amounts from the
proposed settlement amount will be re-allocated to the class
members participating in the settlement through a second
distribution. If there is an insufficient amount in uncashed
checks to cover the costs of the second distribution, or if there
are uncashed funds remaining after the expiration of the checks in
the second distribution, the uncashed funds will be allocated as cy
pres, with 50% of such funds being sent to the Central Valley
Farmworker Foundation and the other 50% to California Rural Legal
Assistance, Inc.
On April 11, 2019, the Plaintiffs filed the present unopposed
motion for preliminary approval of the class action settlement.
The Plaintiffs seek an order: (i) preliminarily approving the
settlement agreement; (ii) approving the proposed notice form and
method of service; (iii) confirming the appointment of the
Plaintiffs as the class representatives; (iv) confirming the
appointment of Eric Kingsley and Liane Katzenstein of Kingsley &
Kingsley, APC and Mario Martinez and Edgar Aguilasocho of Martinez
Aguilasocho & Lynch, APLC as the class counsel; (v) confirming the
appointment of Rust Consulting, Inc. as the settlement
administrator; (vi) setting deadlines for mailing settlement
documents, opting out of, or objecting to the settlement; and (vii)
scheduling the hearing date for final approval of the class
settlement.
Judge Drozd granted the Plaintiffs' motion for preliminary approval
of class action settlement. He approved the proposed notice and
claim form are found to conform with Federal Rule of Civil
Procedure 23. Rust Consulting, Inc. is approved as settlement
claims administrator. The proposed settlement is approved on a
preliminary basis as fair and adequate.
The hearing for final approval of the proposed settlement is set
for Dec. 17, 2019 at 9:30 a.m. in Courtroom 5, with the motion for
final approval of class action settlement to be filed 28 days in
advance of the final approval hearing, in accordance with Local
Rule 230. The Plaintiff's proposed settlement implementation
schedule is adopted.
A full-text copy of the Court's Aug. 6, 2019 Order is available at
https://is.gd/RzCJNv from Leagle.com.
Rafael Marquez Amaro, on behalf of themselves and others similarly
situated & Jesus Alarcon Urzua, on behalf of themselves and others
similarly situated, Plaintiffs, represented by Eric Bryce Kingsley
-- eric@kingsleykingsley.com -- Kingsley & Kingsley APC, Liane
Katzenstein Ly -- liane@kingsleykingsley.com -- Kingsley &
Kingsley, APC, Marcos Rodrigo Camacho, Law Offices of Marcos
Camacho, 227 California Ave.Bakersfield, CA 93304, A Law
Corporation & Mario Martinez -- mmartinez@farmworkerlaw.com --
Martinez Aguilasocho & Lynch, APLC A Law Corporation.
Gerawan Farming, Inc., a California Corporation, Defendant,
represented by David Abba Schwarz -- dschwarz@irell.com -- Irell &
Manella, Patrick Moody -- pmoody@theemployerslawfirm.com --
Barsamian and Moody, Ronald H. Barsamian, Barsamian & Moody,
Theane
Diana Evangelis Kapur- tevangelis@gibsondunn.com -- Gibson Dunn &
Crutcher, Bradley Joseph Hamburger -- bhamburger@gibsondunn.com --
Gibson, Dunn &Crutcher LLP, Tiffany X. Phan --
tphan@gibsondunn.com
-- Gibson Dunn and Crutcher LLP & Victor Jih -- VJih@irell.com --
Irell & Manella LLP.
Gerawan Farming Partners, Inc., a California Corporation,
Defendant, represented by David Abba Schwarz, Irell & Manella,
Patrick Moody, Barsamian and Moody, Ronald H. Barsamian, Barsamian
& Moody & Victor Jih, Irell & Manella LLP.
GGP INC: Del. Ch. Allows Books & Records Inspection in Kosinski
---------------------------------------------------------------
The Court of Chancery of Delaware issued a Memorandum Opinion
granting Plaintiffs’ Demand for Inspection of Books and Records
in the case captioned RANDY KOSINSKI, Plaintiff, v. GGP INC.,
Defendant. C.A. No. 2018-0540-KSJM. (Del. Ch.).
The plaintiff in this action owned GGP stock and sought books and
records under Section 220 of the Delaware General Corporation Law
to investigate possible wrongdoing in connection with the merger.
After GGP rejected the inspection demand, the plaintiff commenced
this action to enforce his inspection rights.
In this action, GGP argues that the plaintiff is not entitled to
inspect books and records because his stated purposes for
inspection are not his own, he lacks a credible basis for
investigating possible wrongdoing, and he otherwise fails to
provide a proper purpose for requesting books and records.
Under Section 220, a stockholder is entitled to inspect a company's
books and records if he demonstrates by a preponderance of the
evidence that he: (1) is a stockholder of the company (2) has made
a written demand on the company and (3) has a proper purpose for
making the demand. If a stockholder meets these three requirements,
he must then establish that each category of the books and records
requested is essential and sufficient to his stated purpose.
Defendant challenges Plaintiff's Section 220 demand on three
grounds.
First, Defendant argues that Plaintiff's purposes in making the
demand were his lawyers' rather than his own.
Second, Defendant argues that Plaintiff's stated purposes are
improper.
Third, Defendant argues that the categories of documents Plaintiff
seeks are not necessary and essential to his enumerated purposes.
Plaintiff's Purposes Are His Own
Defendant argues that Plaintiff's demand and this litigation are
lawyer-driven and reflect the intentions of Plaintiff's counsel
rather than Plaintiff himself.
It is true that a corporate defendant may resist demand where it
shows that the stockholder's stated proper purpose is not the
actual purpose for the demand. However, such a showing is fact
intensive and difficult to establish.
In this case, Defendant emphasizes the fact that Plaintiff's
original intention in retaining counsel was to commence litigation
challenging the merger, rather than to seek to inspect books and
records. Defendant contends that Plaintiff's counsel, having failed
to file suit before three other GGP stockholders did in April and
May 2018, lost the race to the courthouse and decided to go the
Section 220 route instead.
In his deposition, Plaintiff admitted that his counsel helped
articulate his demand purposes, but demonstrated a clear
understanding of the facts and goals relevant to each purpose. For
example, when asked which of the categories of requested documents
would help him achieve the purpose of valuing his shares, Plaintiff
explained that the requested documents would help determine how the
Special Committee came up with their share price versus what the
fair market value maybe could have been.
Also in his deposition, Plaintiff emphasized the importance of
investigating the disinterestedness of the Special Committee,
stating, this should have been a totally independent group with no
ties whatsoever. And I think maybe the special committee was
rushing to get this to go through. Plaintiff's deposition revealed
him to be motivated to inspect GGP's documents, apprised of the
contents of the demand and the circumstances of the merger, and
chalk-full of common sense. The fact that Plaintiff sought and
accepted the advice of counsel is to his credit, not his
detriment.
Plaintiff's Purposes Are Proper
The paramount factor in determining whether a stockholder is
entitled to inspection of corporate books and records is the
propriety of the stockholder's purpose in seeking such inspection.
A purpose is proper where it reasonably relates to the
stockholder's interest as a stockholder. In a section 220 action, a
stockholder has the burden of proof to demonstrate a proper purpose
by a preponderance of the evidence.
Plaintiff articulated three purposes in his Section 220 demand: (1)
to investigate potential breaches of fiduciary duty in connection
with the merger (2) to investigate director disinterestedness
related to the merger and (3) to value Plaintiff's GGP shares.
Investigating Possible Wrongdoing
To inspect books and records for the purpose of investigating
waste, mismanagement, or wrongdoing, a stockholder must present
some evidence that establishes a credible basis from which the
Court of Chancery could infer there were legitimate issues of
possible waste, mismanagement or wrongdoing that warrants further
investigation.
To meet the credible basis requirement, Plaintiff argues that
Brookfield was GGP's de facto controller at the time of the merger,
and that the procedural protections sufficient to trigger the
business judgment standard of review under Kahn v. M & F Worldwide
Corp. were not implemented.
Defendant first responds by denying that Brookfield was a de facto
controller, but Defendant's argument is unpersuasive. Prior to the
merger, Brookfield owned approximately thirty-four percent of GGP's
common stock. Brookfield's stock ownership gave it the power to
appoint three directors to GGP's nine-member board.
Defendant next contends that whether Brookfield and GGP implemented
the procedural protections of MFW speaks solely to whether the
entire fairness standard applies in plenary litigation and not to
whether the Special Committee committed possible wrongdoing to
support a Section 220 inspection.
Yet, the reason why the presence of certain procedural protections
results in a deferential standard under MFW is that, in theory,
those protections operate to replicate an arm's length merger.
There is no reason why these possibilities cannot contribute to a
credible basis.
In this case, the three grounds Plaintiff identifies for calling
into question compliance with MFW establish a credible basis to
investigate possible wrongdoing.
First, Plaintiff points to facts to show that members of the
Special Committee were interested or lacked independence.
Second, Plaintiff alleges that Brookfield's initial offer was not
conditioned on the approval of a special committee.
Third, Plaintiff points to facts suggesting that the Special
Committee failed to obtain a fair price in negotiations with
Brookfield.
Taken together, this evidence supplies a credible basis to infer
the possibility of wrongdoing. To be clear, this decision need not
opine as to whether Plaintiff's allegations would meet the burden
for pleading a claim for breach of fiduciary duty. But Plaintiff's
showing is sufficient to meet the exceptionally low standard to
support a credible basis for investigating wrongdoing.
Investigating Director Disinterestedness Related to the Merger
Another proper Section 220 purpose is to investigate questions of
director disinterestedness and independence. Because director
independence is a contextual inquiry, potential stockholder
plaintiffs have been admonished to employ the Section 220 process
to delve into the relationship among board members. For example,
the Delaware Supreme Court has observed that a stockholder might
use a Section 220 demand to uncover cronyism in the process of
nominating directors, or to make sure the nomination process
incorporated procedural safeguards to ensure directors'
independence. It is certainly within a stockholder's power to
explore these matters' using Section 220.
In this case, Plaintiff's allegations concerning Fukakusa and Haley
satisfy Section 220's minimal standard for investigating Fukakusa's
and Haley's disinterestedness and independence.
Valuing Plaintiff's GGP Shares
Valuation of one's shares is a proper purpose for the inspection of
corporate books and records. Defendant argues that the only reason
Plaintiff might need to value his shares is to allege that the
merger price was unfair in plenary litigation. Further, if
Plaintiff ever files plenary litigation, he may seek documents
concerning the value of GGP shares as part of Rule 34 discovery.
Defendant's argument ignores that Delaware courts instruct
stockholders to pursue Section 220 as a means of gathering
information before making plenary claims in order to meet their
pleading burden.
Defendant further argues that Plaintiff does not need to value his
stock because he already determined how much he believes his shares
were worth at the time of the merger. Defendant overstates the
facts on this point. Plaintiff's belief concerning the value of his
stock at the time of the merger does not deprive him of his right
to seek corporate records in order to make an informed conclusion.
Plaintiff Is Entitled to Books and Records That Are Necessary and
Essential to His Purposes
Having demonstrated proper purposes, Plaintiff is entitled to books
and records that are essential, but no more than are sufficient,
for Plaintiff to achieve his purposes. The Delaware Supreme Court
refers to this standard as the necessary and essential standard.
Documents are necessary and essential pursuant to a Section 220
demand if they address the crux of the shareholder's purpose' and
if that information `is unavailable from another source.
This decision finds that Plaintiff's stated purposes are his own,
that Plaintiff's purposes are proper, and that Plaintiff is
entitled to inspect documents necessary and essential to achieve
his purposes.
A full-text copy of the Chancery Court's August 28, 2019 Memorandum
Opinion is available at https://tinyurl.com/y47p84ps from
Leagle.com.
Seth D. Rigrodsky -- sdr@rl-legal.com -- Brian D. Long –
bdl@rl-legal.com -- Gina M. Serra -- gms@rl-legal.com -- RIGRODSKY
& LONG, P.A., Wilmington, Delaware; Carl L. Stine --
cstine@wolfpopper.com -- Adam J. Blander -- ablander@wolfpopper.com
-- WOLF POPPER LLP, New York, New York; Counsel for Plaintiff Randy
Kosinski.
Kevin G. Abrams -- abrams@abramsbayliss.com -- John M. Seaman --
Seaman@AbramsBayliss.com -- Matthew L. Miller --
Miller@AbramsBayliss.com -- ABRAMS & BAYLISS LLP, Wilmington,
Delaware; John A. Neuwirth -- john.neuwirth@weil.com -- Evert J.
Christensen Jr. -- evert.christensen@weil.com -- Seth Goodchild –
seth.goodchild@weil.com -- Matthew S. Connors --
matthew.connors@weil.com -- WEIL, GOTSHAL & MANGES LLP; Counsel for
Defendant GGP Inc.
GOOGLE INC: Pixel Microphone Class Action Settlement Finalized
--------------------------------------------------------------
Tom McKay, writing for The Verge, reports that a previously
announced settlement in a class action lawsuit against Google over
claims of defective microphones in first-generation Pixel phones
and failure to honor warranty claims has been finalized and a
website set up to process claims, per the Verge. Those eligible for
payouts may receive up to $500, but anyone who owned a Pixel or
Pixel XL during the time period covered by the settlement could
receive up to $20.
According to the terms of the settlement, first-generation Pixel
owners who reside in the U.S. and purchased a device manufactured
before Jan. 4, 2017 (and who did not purchase the Pixel for the
purpose of flipping it) and did not receive a replacement device
manufactured after Jan. 3, 2017 or refurbished after June 5, 2017
are eligible. However -- as the recent debacle over the paltry
checks many may receive in the Equifax data breach settlement
illustrated -- those who file claims may receive less money than
expected.
Google has set aside some $7.25 million for the settlement, which
will be further reduced by administration and lawyer's fees, per
the Verge. From there, anyone who owned an eligible Pixel or Pixel
XL but who does not have documentation showing their device had
audio defects will technically be eligible to receive "up to $20,"
but that pool is capped at 25 percent of the settlement fund. As
the Verge noted, that means that claimants without documentation
will only receive the full $20 if less than 14,500 others (or
fewer, depending on those fees) do so.
According to the Verge, those who paid insurance deductibles to
replace Pixels with audio defects will be refunded; a pool of money
has already been set aside for this purpose to ensure that all such
claimants are reimbursed. Those who experienced the issue on more
than one Pixel device and documented their struggles will get $500.
Finally, the settlement terms say those who only have documentation
of owning one defective Pixel will get up to $350, "unless there is
not enough money left to make those payments, in which case the
rest of the fund will be distributed to them on a pro rata basis."
Proper documentation includes "emails, customer service chat logs,
repair records, insurance claims, Return Merchandise Authorization
("RMA") confirmations, or other credible evidence of failure,"
according to the settlement website. The deadline for filing claims
or opting out (in the extremely unlikely case someone feels like
suing Google all over again) is Oct. 7, 2019.
This is actually the second time that Google has reached an
arrangement to reimburse people for a Pixel-related screwup. On
Aug. 12, Gizmodo reported that Google said it will work with
customers who received time limited $100 Google Store credits in a
Pixel 3a promotional deal and applied them to pre-orders of the
Founder's Edition of its upcoming Stadia game streaming service,
only to find that their credit cards had been charged in full.
Google told Gizmodo it has directed its customer service department
to work with customers whose credits expired before July 1, 201 and
failed to have the amount applied towards Stadia pre-purchases, as
well as extended the validity of credits expiring after that date
until January 2020. [GN]
H&R BLOCK: Bid to Stay Proceeding in Olosoni and Snarr Suit Pending
-------------------------------------------------------------------
H&R Block, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on September 6, 2019, for the
quarterly period ended July 31, 2019, that the company is seeking a
stay of the proceedings in the class action suit entitled, Olosoni
and Snarr v. H&R Block, Inc., et al., based on the primary
jurisdiction doctrine and a motion to compel arbitration, both of
which remain pending.
On May 17, 2019, a putative class action complaint was filed
against H&R Block, Inc., HRB Tax Group, Inc. and HRB Digital LLC in
the Superior Court of the State of California, County of San
Francisco (Case No. CGC-19576093) styled Olosoni and Snarr v. H&R
Block, Inc., et al. The case was removed to the United States
District Court for the Northern District of California on June 21,
2019 (Case No. 3:19-cv-03610-SK).
The plaintiffs filed a first amended complaint on August 9, 2019,
dropping H&R Block, Inc. from the case.
In their amended complaint, the plaintiffs seek to represent
classes of all persons, between May 17, 2015 and the present, who
(1) paid to file one or more federal tax returns through H&R
Block's internet-based filing system, (2) were eligible to file
those tax returns for free through the H&R Block Free File offer of
the IRS Free File Program, and (3) resided in and were citizens of
California at the time of the payments.
The plaintiffs generally allege unlawful, unfair, fraudulent and
deceptive business practices and acts in connection with the IRS
Free File Program in violation of the California Consumers Legal
Remedies Act, California Civil Code Sections 1750, et seq., False
Advertising, Business and Professions Code §§17500, et seq., and
Unfair Competition Law, Business and Professions Code Sections
17200 et seq.
The plaintiffs seek declaratory and injunctive relief, restitution,
compensatory damages, punitive damages, interest, attorneys' fees
and costs.
H&R Block said, "We filed a motion to stay the proceedings based on
the primary jurisdiction doctrine and a motion to compel
arbitration, both of which remain pending. We have not concluded
that a loss related to this matter is probable, nor have we accrued
a liability related to this matter."
H&R Block, Inc., through its subsidiaries, provides assisted income
tax return preparation, digital do-it-yourself (DIY) tax solutions,
and other services and products related to income tax return
preparation to the general public primarily in the United States,
Canada, and Australia. H&R Block, Inc. was founded in 1946 and is
headquartered in Kansas City, Missouri.
HELIX ENERGY: Court Narrows Claims in Shaw Discrimination Suit
--------------------------------------------------------------
In the case, FABIAN SHAW, et al., Plaintiffs, v. HELIX ENERGY
SOLUTIONS GROUP INC., Defendant, Civil Action No. 4:18-CV-3200
(S.D. Tex.), Judge Andrew S. Hanen of the U.S. District Court for
the Southern District of Texas, Houston Division, recommended that
the Defendant's Motion for Dismissal of Class Action Claim and
Certain Other Claims in Plaintiffs' First Amended Class Action
Complaint should be granted in part.
Judge Hanen has reviewed the case, de novo, and agrees with the
Magistrate Judge Stacy's conclusion in her Memorandum and
Recommendation that the Defendant's Motion should be granted in
part. Accordingly, he adopted the Memorandum and Recommendation,
and granted in part the Defendant's Motion for Dismissal of Class
Action Claim and Certain Other Claims in Plaintiffs' First Amended
Class Action Complaint.
Pursuant to Rule 12(b)(6) for failure to state a claim, the
Plaintiffs' class action claim; Shaw's disparate treatment and
hostile work environment claims under Title VII based on conduct
that occurred prior to Nov. 18, 2016; and, Kwabena's disparate
treatment and hostile work environment claims under Title VII based
on conduct that occurred prior to Nov. 15, 2016 are dismissed with
prejudice. The Judge overruled the Defendant's objection
concerning the disparate impact claims without prejudice to being
reasserted pursuant to Rule 56 FED.R.CIV.P.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/LHfu7r from Leagle.com.
Fabian Shaw, Collins Kwabena & Dale Duclion, Plaintiffs,
represented by Gabrielle Ogechukwu Ilochi, TB Robinson Law Group,
PLLC & Terrence B. Robinson -- TRobinson@TBRobinsonlaw.com -- TB
Robinson Law Group, PLLC.
Helix Energy Solutions Group Inc., Defendant, represented by James
R. Staley -- jim.staley@ogletree.com -- Ogletree Deakins et al.
HKA ENTERPRISES: Settlement in Moorhead Suit Has Prelim Approval
----------------------------------------------------------------
In the case, JOSEPH MOORHEAD, individually and on behalf of all
others similarly situated, Plaintiff, v. HKA ENTERPRISES, LLC,
Defendant, Case No. 7:19-cv-00265-DCC (D. S.C.), Judge Donald C.
Coggins, Jr. of the U.S. District Court for the District of South
Carolina, Spartanburg Division, granted the Plaintiffs' motion for
preliminary approval of the proposed class action settlement.
The Judge has conducted a preliminary evaluation of the Settlement
as set forth in the Agreement for fairness, adequacy, and
reasonableness. Based on that evaluation, he finds there is cause
to believe that: (i) the Agreement is fair, reasonable, and
adequate, and within the range of possible approval; (ii) the
Agreement has been negotiated in good faith at arms-length between
experienced attorneys familiar with the legal and factual issues of
this case; and (iii) with respect to the forms of notice of the
material terms of the Agreement to Settlement Class Members for
their consideration and reaction, that notice is appropriate and
warranted. Therefore, he granted preliminary approval of the
Settlement.
Pursuant to Rule 23(a) and Rule 23(b)(3) of the Federal Rules of
Civil Procedure, the Judge conditionally certified, for purposes of
this Settlement only, the following Settlement Classes:
a. Class A: All natural persons residing within the United
States and its Territories with respect to whom, within seven years
prior to the filing of the action and extending through the
resolution of the action, HKA procured or caused to be procured a
consumer report for employment purposes based on a disclosure form
from one or more of the following background check vendors: AWSI,
Backgroundchecks.com, ESS, and GIS. The parties agree that there
are 3,634 members of Settlement Class A as identified by HKA.
Class B: All natural persons residing within the United States
and its Territories: (1) within seven years prior to the filing of
this action and extending through the resolution of the action; (2)
who were the subject of a background report procured or caused to
be procured by HKA based on a disclosure form other than that from
the following background check vendors: AWSI, Backgroundchecks.com,
ESS (the vendor applicable to Moorhead), and GIS; (3) that was used
to make an adverse employment decision regarding such employee or
applicant for employment; and (4) who HKA failed to notify of a
forthcoming adverse action and/or failed to provide the applicant
an understandable copy of his or her consumer report or a copy of
the FCRA summary of rights before it took such adverse action. The
parties agree that there are 68 individuals who are members of
Settlement Class B as identified by HKA.
Class C: All natural persons residing within the United States
and its Territories: (1) within two years prior to the filing of
this action and extending through the resolution of the action; (2)
who were the subject of a background report procured or caused to
be procured by HKA based on a disclosure form from one or more of
the following background check vendors: AWSI, Backgroundchecks.com,
ESS (the vendor applicable to Moorhead), and GIS; (3) that was used
to make an adverse employment decision regarding such employee or
applicant for employment; and (4) who HKA failed to notify of a
forthcoming adverse action and/or failed to provide the applicant
an understandable copy of his or her consumer report or a copy of
the FCRA summary of rights before it took such adverse action. The
parties agree that there are 73 individuals who are members of
Settlement Class C as identified by HKA.
The Judge appointed (i) Meyer Wilson Co., LPA, Semnar & Hartman,
LLP, and Dave Maxfield, Attorney, LLC as the Class Counsel; and
(ii) Joseph Moorhead as the Class Representative.
He approved the proposed Notice plan for giving notice to the
Settlement Class.
On Dec. 3, 2019, in the Second Floor of the Donald S. Russell
Federal Building & U. S. Courthouse, 201 Magnolia Street,
Spartanburg, SC 29306, or at such other date and time later set by
Court Order, the Court will hold a Final Approval Hearing. No
later than Oct. 4, 2019, the Plaintiffs must file papers in support
of their application for attorneys' fees and expenses, and the
incentive awards to the Class Representatives. No later than Nov.
19, 2019, which is 14 days prior to the Final Approval Hearing, the
Plaintiffs must file papers in support of final approval of the
Settlement and respond to any written objections. The Defendant
may (but is not required to) file papers in support of final
approval of the Settlement, so long as it does so no later than
Nov. 19, 2019. The Court may continue the Final Approval Hearing
from time-to-time without further notice to the members of the
Settlement Class.
The Claims Administrator will file with the Court by no later than
Nov. 19, 2019, which is 14 days prior to the Final Approval
Hearing, proof that Notice was provided in accordance with the
Agreement and the Preliminary Approval Order, as well as proof that
notice was provided to the appropriate State and federal officials
pursuant to the Class Action Fairness Act.
The Settlement Class Members who wish to either object to the
Settlement or request to be excluded from it must do so by the
Objection Deadline and Opt-Out Deadline of Nov. 4, 2019, which is
60 calendar days after the Settlement Notice Date.
The following are the deadlines by which certain events must
occur:
a. Sept. 4, 2019 - Deadline to Provide Class Notice [29
calendar days after the date of the Order]
b. Oct. 4, 2019 - Deadline for the Plaintiffs' Motion for
Attorneys' Fees and Incentive Award [30 days after the Settlement
Notice Date]
c. Nov. 19, 2019 - Deadline for Parties to file the following:
[14 days before the (1) List of Class Members who made timely and
proper Requests Final Approval for Exclusion; Hearing] (2) Proof of
Class Notice and CAFA Notice (to be filed by the Administrator);
and (3) Motion and Memorandum in Support of Final Approval,
including responses to any Objections]
d. Nov. 4, 2019 - Deadline for Settlement Class Members to
submit a Claim Form, to [60 days after the file Objections, or
submit Requests for Exclusion Settlement Notice Date]
e. Dec. 3, 2019 - Final Approval Hearing [or any time
thereafter at the Court's convenience] at [10:00 a.m.]
Pursuant to the Agreement, Kurtzman Carson Consultants is appointed
as the Claims Administrator.
A full-text copy of the Court's Aug. 6, 2019 Order is available at
https://is.gd/vFxXrW from Leagle.com.
Joseph Moorhead, an individual, Plaintiff, represented by David
Andrew Maxfield, David Maxfield Attorney LLC, Jared M. Hartman --
Jared@SanDiegoConsumerAttorneys.com -- Semnar & Hartman LLP, pro
hac vice, Matthew Ryan Wilson -- mwilson@meyerwilson.com -- Meyer
Wilson Co LPA & Michael J. Boyle, Jr. -- mboyle@meyerwilson.com --
Meyer Wilson Co LPA.
HKA Enterprises LLC, Defendant, represented by Jennifer Monrose
Moore -- jennifer.moore@ogletree.com -- Ogletree Deakins Nash Smoak
and Stewart PC, pro hac vice & Lucas James Asper --
lucas.asper@ogletree.com -- Ogletree Deakins Nash Smoak and
Stewart.
HYUNDAI: Santa Fe SUV Acceleration Class Action Survives
--------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that Hyundai
Santa Fe "hesitation on acceleration" problems are being debated as
a proposed class action lawsuit struggles in a New Jersey court.
The lawsuit alleges Hyundai concealed powertrain defects that cause
a loss of power, rough shifting and delayed acceleration when
turning or merging onto highways.
Plaintiff Jan Schechter filed the proposed class action lawsuit on
behalf of all persons in the U.S. who purchased, own, owned, lease
or leased 2017-2018 Hyundai Santa Fe SUVs or 2017-2018 Hyundai
Santa Fe Sports.
Hesitation and acceleration problems allegedly cause customers to
incur out-of-pocket expenses in an effort to repair the lurching,
jerking and engine revving associated with the engine and
transmission defects.
The plaintiff claims his 2017 Hyundai Santa Fe Sport lost power
while he was driving and complained the RPM increased when he
pressed the accelerator pedal but the SUV didn't move. The
plaintiff also claims the delayed acceleration lasted five to six
seconds before the Santa Fe Sport finally took off.
Schechter says Hyundai was unable to fix the hesitation and
acceleration problems during two trips to the dealership.
According to the plaintiff, Hyundai's advertisements for the Santa
Fe Sport never mentioned powertrain problems and complaining
directly to Hyundai did nothing to remedy the problems.
The lawsuit further says Hyundai should buy back the SUVs or create
a program to repair or replace the vehicles.
According to the lawsuit, claims against Hyundai include:
-- Fraud
-- Negligent misrepresentation
-- Breach of the express warranty
-- Breach of the implied warranty
-- Violation of the Magnuson-Moss Warranty Act
-- Unjust enrichment
-- Violation of the New Jersey Consumer Fraud Act
-- Violation of California's Consumer Legal Remedies Act
-- Violation of California's Unfair Competition Law
Hyundai filed a motion to dismiss the lawsuit and almost completely
succeeded after the judge dismissed all claims except two.
Hyundai told the judge the plaintiff cannot bring claims related to
2017-2018 Santa Fe Sport 2.0T and 2017-2018 Santa Fe Sport 3.3L
vehicles because he didn't own or lease those models. However, the
plaintiff says he has the right to include those vehicles because
they are similar to his.
That argument didn't fly with the judge who ruled the plaintiff
failed to adequately allege the vehicles are "sufficiently
similar." This left the plaintiff with the ability to only
represent customers who leased or purchased 2017 Hyundai Santa Fe
Sports equipped with 2.4-liter engines.
The automaker also argued the plaintiff had no viable claims
concerning Hyundai concealing alleged powertrain defects or knowing
about the alleged problems before the plaintiff purchased his Santa
Fe Sport.
According to the lawsuit, Hyundai must have known about possible
problems based on consumer complaints and the issuance of technical
service bulletins (TSBs) to dealerships. But the judge found two of
the bulletins referenced unrelated problems on vehicles that aren't
included in the class action.
The judge ruled none of this is proof Hyundai allegedly knew of
acceleration and hesitation problems.
The plaintiff also failed to show Hyundai was aware of anonymous
complaints posted online and never alleged the automaker monitored
or tracked the website of the National Highway Traffic Safety
Administration. Furthermore, the plaintiff failed to show the
government contacted Hyundai about the posted complaints.
"Absent such allegations, consumer complaints on third-party
websites are insufficient to support a manufacturer's knowledge of
an alleged defect. [I]mputing knowledge of a defect to a
manufacturer based upon an internet posting would mean that
virtually every consumer product company would be subject to fraud
claims and extensive discovery."
By the end, the judge dismissed all the claims except breach of
express and implied warranties, and tossed all claims relating to
Santa Fe Sport 2.0T and Santa Fe Sport 3.3-liter vehicles.
The Hyundai Santa Fe hesitation on acceleration lawsuit was filed
in the U.S. District Court for the District of New Jersey -
Schechter v. Hyundai Motor America, et al.
The plaintiff is represented by Bursor & Fisher. [GN]
INTEGRATED TECH: Class in Monplaisir Suit Conditionally Certified
-----------------------------------------------------------------
In the case, PAUL MONPLAISIR, individually and on behalf of all
others similarly situated, Plaintiff, v. INTEGRATED TECH GROUP, LLC
and ITG COMMUNICATIONS LLC, Defendants, Case No. C 19-01484 WHA
(N.D. Cal.), Judge William Alsup of the U.S. District Court for the
Northern District of California (i) granted the Plaintiff's motion
for conditional certification, and (ii) held in abeyance the
Defendants move to compel arbitration.
The Defendants provide cable and communication equipment
installations nationwide on behalf of cable operators. ITG
employed technicians -- who were classified as non-exempt employees
-- to implement its installation services.
Plaintiff Monplaisir worked as a technician for ITG from
approximately January 2017 to June 2018. According to the
complaint, his and other technicians' duties included, for example,
driving to customer locations; installing cable, telephone, and
internet service; making repairs; troubleshooting; and educating
customers.
The Plaintiff alleges that ITG subjected its technicians to similar
policies and procedures that required them to work significant
portions of their day off-the-clock, including attending
orientation and training; pre-shift work; meal periods; additional
time spent on completing jobs; and drive time to client locations.
The Technicians allegedly typically worked 10 to 16 hours a day,
much of which went unreported or eliminated from compensation, as
ITG systematically pressured them Technicians to underreport their
hours, unilaterally changed Technician time records, and instructed
them to falsely report on their time sheets that they took a meal
break, without regard to whether they did in fact took a meal
break. Further, they allegedly incurred unreimbursed work-related
expenses, such as gasoline, tools, and equipment purchases.
Under its compensation system, ITG provided technicians with a job
code for each discrete task completed, which job code corresponded
to a dollar amount to be paid to the technician. ITG, however,
allegedly pressured technicians not to submit job codes for
completed tasks and further instructed management to erase or alter
job codes.
The Plaintiff filed the instant FLSA action in March 2019, seeking
overtime and minimum wages. He now moves under Section 216(b) of
the FLSA to conditionally certify a collective action and to
disseminate notice.
His proposed FLSA is defined as all current and former non-exempt
hourly employees of Defendants Integrated Tech Group, LLC and ITG
Communications LLC working as technicians throughout the United
States during the time period three years prior to the filing of
the complaint until resolution of the action.
The Plaintiff argues that the putative collective members are
similarly situated because they (1) are subject to the same
compensation and overtime policies regardless of geographic
location, and (2) have the same job duties, responsibilities, work
hours, and compensation.
ITG opposes, arguing that (1) the Plaintiff has not shown he is
similarly situated to other putative collective members, and (2) in
the alternative, technicians who signed an arbitration agreement
should be excluded from the proposed FLSA class. ITG also moves to
compel arbitration as to those 36 Plaintiffs who have already opted
in to the instant action but earlier signed an arbitration
agreement.
Judge Alsup finds that the Plaintiff has met his "low burden" at
this stage of showing that there is sufficient material similarity
between the Plaintiff and the putative collective members with
respect to the disposition of their FLSA claim. He supports each
of the allegations in his complaint with declarations from himself
and other technicians who worked in multiple different states, all
of which describe similar FLSA violations by ITG.
ITG complains that the Plaintiff provided no documentary evidence
of a common policy or practice, such as an employee handbook. It
cites no authority, however, for the proposition that documentary
evidence is required at this stage. Rather, this lenient standard
can be satisfied by declarations.
ITG next argues that much of plaintiff's declarations contain
inadmissible hearsay and speculation and thus should not be given
any weight. In support, it filed in nine separate docket entries
objections to each declaration in complete disregard of Civil Local
Rule 7-3(a), which states that that any evidentiary and procedural
objections to the motion must be contained within the brief or
memorandum. In light of this violation, the Judge will not
consider the objections.
In the alternative, ITG argues that the proposed FLSA class should
be limited to those technicians who did not sign arbitration
agreements. It contends that about 1,400 of the approximately
2,680 putative collective members signed valid, identical
arbitration agreements, which included a class/collective action
waiver. Thus those employees cannot be potential Plaintiffs in the
instant action and should not be sent notice, according to ITG.
The Plaintiff, on the other hand, stresses that district judges in
this circuit generally defer ruling on the scope of a proposed FLSA
based on arbitration agreements to the second step, given the
lenient standard applicable.
The Judge finds that district judges within the circuit that have
addressed that issue have all found that the issue of the
enforceability of arbitration clauses related to the merits of the
case and therefore should be dealt with in phase two. He order
finds no persuasive reason to deviate from this approach.
Moreover, a special circumstance here makes the Plaintiff's
argument independently persuasive -- namely, ITG has already moved
to compel arbitration as to the Plaintiffs who have already opted
in. That motion will affect the interests of nearly 1,400 other
putative collective members. If ITG wins a favorable ruling on the
arbitration agreements' validity and enforceability before all
putative collective members have had a chance to opt in and be
heard, ITG would likely use the ruling against them, if not here,
then in whatever court they sued. Thus all putative collective
members should have notice and opportunity to be heard on this
issue now.
For the foregoing reasons, Judge Alsup granted the Plaintiff's
motion for conditional certification. As discussed during the
hearing on the Plaintiff's motion for conditional certification, he
accordingly held in abeyance ITG's motion to compel arbitration
pending the close of the opt-in period in order to allow all the
potential Plaintiffs the opportunity to join the instant action.
The parties will meet and confer and jointly file proposed forms of
the two notice by August 12 at noon. The proposed notice to be
sent to the potential Plaintiffs who signed an arbitration
agreement should include the following language: "If you received
this form of notice, then ITG contends that you are subject to a
valid and enforceable arbitration agreement." And, by way of
corollary, the proposed notice to be sent to the potential
Plaintiffs who did not sign an arbitration agreement should include
the following language: "If you received this form of notice, then
ITG does not contend that you are subject to a valid and
enforceable arbitration agreement." The parties will also propose
a date on which to hear ITG's motion to compel.
A full-text copy of the Court's Aug. 6, 2019 Order is available at
https://is.gd/4ZuT8D from Leagle.com.
Paul Monplaisir, Jacky Charles & Sterling Francois, Plaintiffs,
represented by Sarah Rebecca Schalman-Bergen, Berger Montague PC,
pro hac vice, Krysten Leigh Connon, BERGER MONTAGUE PC, pro hac
vice, Michelle Son Lim -- mlim@schneiderwallace.com -- Schneider
Wallace Cottrell Konecky Wotkyns LLP, Ori Edelstein --
oedelstein@schneiderwallace.com -- Schneider Wallace Cottrell
Konecky Wotkyns LLP & Carolyn Hunt Cottrell --
ccottrell@schneiderwallace.com -- Schneider Wallace Cottrell
Konecky Wotkyns LLP.
Integrated Tech Group, LLC & ITG Communications LLC, Defendants,
represented by Kevin Robert Allen -- kevin@allenattorneygroup.com
-- Allen Attorney Group, Audrey A. Gee -- agee@bgwcounsel.com --
Brown Gee & Wenger, LLP & David M. Marchiano --
dmarchiano@bgwcounsel.com -- Brown Gee & Wenger.
JEFFERSON, TX: Nourse Seeks to Certify Class
--------------------------------------------
In the class action lawsuit styled as BRAD NOURSE, both
individually and on behalf of a Class of others similarly situated,
the Plaintiff, vs. THE COUNTY OF JEFFERSON, the Defendant, Case No.
1:17-cv-00807-BKS-DJS (N.D.N.Y.), the Plaintiff moves the Court for
an order:
1. certifying a class of:
"all persons who have been or will be placed into the
custody of the Jefferson County Jail after being charged
with misdemeanors, violations, traffic infractions, civil
commitments or other minor crimes and being eligible for
bail, and were or will be immediately strip searched upon
their entry into the Jefferson County Jail pursuant to the
policy, custom and practice of the Jefferson County
Sheriff's Department and the County of Jefferson, and who
posted bail within four hours of their entry into the
facility. The class period commences on July 21, 2014 and
extends to the date on which the Jefferson County Sheriff's
Department and/or the County of Jefferson are enjoined from,
or otherwise cease, enforcing their unconstitutional policy,
practice and custom of conducting strip searches of pre-
trial detainees absent providing them with a reasonable
opportunity to post bail. Specifically excluded from the
class are Defendant and any and all of their respective
affiliates, legal representatives, heirs, successors,
employees or assignees"; and
2. seeking any other relief that the Court deems to be just,
proper and equitable.
The Plaintiff is represented by:
Elmer Robert Keach, III, Esq.
Maria K. Dyson, Esq.
LAW OFFICES OF ELMER
ROBERT KEACH, III, PC
One Pine West Plaza, Suite 109
Albany, NY 12205
Telephone: 518-434-1718
E-mail: bobkeach@keachlawfirm.com
JPMORGAN CHASE: Court Dismisses Anderman Suit
---------------------------------------------
The United States District Court for the Middle District of
Florida, Tampa Division, issued an Order granting Defendant's
Motion to Dismiss in the case captioned ROSEMARY ARBUCKLE ANDERMAN,
CAROLYN ARBUCKLE PLATT, and MARILYN ARBUCKLE SCHEIDT, Plaintiffs,
v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, and PHELAN HALLINAN
DIAMOND & JONES, PLLC, Defendants. Case No. 8:19-cv-1034-T-02CPT.
(M.D. Fla.).
The Plaintiffs are sisters and heirs of a decedent, who passed away
in Sarasota County in 2012 while in default on his homestead
mortgage. The Defendants are the bank-mortgagee on the decedent's
house, and the law firm who filed the foreclosure action on
decedent's house. The amended complaint is devoid of any allegation
that the Defendants sent pre-suit dunning letters or sought to take
pre-lawsuit action against Plaintiffs, or engaged in any oppressive
conduct beyond filing an amended complaint with service of summons.
What the instant claim does allege is that Defendants filed an
amended complaint in the state foreclosure action and listed the
Plaintiffs as foreclosure defendants: heirs who might have a
possible interest in the house subject to foreclosure. The
Plaintiffs allege that the filing of the amended foreclosure
complaint, and asking the state court to retain jurisdiction in the
event any deficiency judgment was necessary, violated the Fair Debt
Collection Practices Act (FDCPA).
This was a routine foreclosure action that Plaintiffs wish to make
into a federal class action, alleging that including the Plaintiffs
in the foreclosure actions states a federal cause of action worthy
of class action status. The amended complaint here fails for
several reasons. First, Chase originated this debt and sought to
collect the debt on its own behalf, through a properly-filed law
suit. Therefore, Chase is not a debt collector under the Fair Debt
Collection Practices Act.
Second, the amended complaint only alleges that Chase named
decedent's sisters/heirs as a defendant in a law suit. No
inequitable, false, or misleading conduct is alleged, nor any
dunning collection-type or out-of-court activity. The Plaintiffs
were not subject to any collecting activity and no deficiency was
sought against them by name, but only generically. This fails to
state a claim under the applicable statute. If Chase has pursued a
frivolous claim in a law suit, Plaintiffs have a remedy at that
forum.
Because Chase's actions in pursuing its debt in the foreclosure
matter did not violate the Fair Debt Collection Practices Act, the
amended complaint likewise fails to state a claim against Chase's
lawyers who filed the suit, Defendant Phelan.
Defendant J. P. Morgan Chase Bank, N.A.'s Motion to Dismiss and
Defendant Phelan Hallinan Diamond & Jones, PLLC's Motion to Dismiss
Plaintiffs' Amended Complaint are granted. The amended class action
complaint is dismissed.
A full-text copy of the District Court's August 28, 2019 Order is
available at https://tinyurl.com/yxgxzn57 from Leagle.com.
Rosemary Arbuckle Anderman, Carolyn Arbuckle Platt & Marilyn
Arbuckle Scheidt, Plaintiffs, represented by Jonathan Betten Cohen,
Morgan & Morgan, PA, 201 N. Franklin Street, 7th Floor, Tampa, FL,
33602, James E. Orth, Jr. , James E Orth Jr PA, 2215 Garden Street
# B, Titusville, FL 32796, George Michael Gingo & John Allen
Yanchunis, Sr. , Morgan & Morgan, PA, 201 N. Franklin Street, 7th
Floor, Tampa, FL, 33602
JP Morgan Chase Bank, National Association, Defendant, represented
by Martha Anne Leibell -- martha.leibell@morganlewis.com -- Morgan,
Lewis & Bockius LLP, Melissa Marie Coates --
melissa.coates@morganlewis.com -- Morgan, Lewis & Bockius, LLP &
Robert M. Brochin -- bobby.brochin@morganlewis.com -- Morgan, Lewis
& Bockius, LLP.
Phelan Hallinan Diamond & Jones, PLLC, Defendant, represented by
Wendy Stein Fulton -- wsteinfulton@bonnerkiernan.com -- Bonner
Kiernan Trebach & Crociata.
JPMORGAN CHASE: Court OKs Dismissal of Holland TCPA Suit
--------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order granting Defendants' Motion to
Dismiss in the case captioned STEVEN W. HOLLAND, Plaintiff, v.
JPMORGAN CHASE BANK, N.A., and CHASE BANK USA, N.A., Defendants.
No. 19 Civ. 00233 (PAE). (S.D.N.Y.).
This case involves an alleged violation of the Telephone Consumer
Protection Act (TCPA). Plaintiff Steven W. Holland asserts that he
received repeated telephone calls relating to five Chase credit
card accounts. Holland alleges that defendants JPMorgan Chase Bank,
N.A. (JPMC) and Chase Bank USA, N.A. (Chase) used an automated
telephone dialing system (auto-dialer) to place a barrage of
robocalls without his prior express consent, in violation of the
TCPA.
Defendants argue that Holland lacks standing to proceed against
JPMC, that his claim is barred by the doctrine of res judicata and
by the relevant statute of limitations, and that his Complaint, by
neglecting to distinguish the conduct of each defendant, fails to
satisfy the pleading requirements of Federal Rule of Civil
Procedure 8.
Holland asserts an identical claim for violation of the TCPA
against each of Chase (Chase claim) and JPMC (JPMC claim). A
plaintiff proceeding against multiple defendants must establish
standing as to each defendant and each claim.
Defendants attack the factual basis for Holland's assertion of
standing as to the JPMC claim only—not as to the Chase claim.
Specifically, defendants assert that JPMC neither issued Holland's
accounts nor ever made a robocall to Holland.
Holland counters that: (1) even prior to the merger, the robocalls
were legally attributable to both JPMC and Chase, to the extent the
calls were not previously attributable to JPMC, the later merger of
JPMC and Chase is dispositive of defendants' standing challeng and
(3) the robocalls were factually attributable to JPMC, in other
words, that JPMC itself caused the calls to be made.
The Court addresses these arguments in turn.
First, Holland argues that the robocalls were legally attributable
to JPMC due to JPMC's pre-merger relationship with Chase. Before
the May 18, 2019 merger of Chase with and into JPMC, Chase and JPMC
were formally separate legal entities incorporated in different
states. Holland does not argue that Chase and JPMC were alter egos
or had any sort of agency relationship. Nor has he presented any
evidence that, before the merger, Chase and JPMC were anything
other than legally distinct, though related, corporations.
Given these facts, Holland's first argument fails. It is
well-established that the law allows a corporation to organize so
as to isolate liabilities among separate entities. Chase's alleged
robocalls to Holland's cellular and office telephone numbers, which
pre-date the merger of JPMC and Chase, thus cannot be attributed to
JPMC.
Second, Holland argues that the merger of Chase into JPMC is
dispositive of and wholly extinguishes defendants' claim of a lack
of standing to sue JPMC because JPMC allegedly acquired Chase's
liabilities in the merger. That, too, is wrong. A plaintiff must
establish standing for each claim and as to each defendant Holland
must show, inter alia, that for each claim his injury is fairly
traceable to the challenged action of the defendant. Because the
two defendants here were legally distinct at the time of the
alleged robocalls, Holland, but for the merger, would need to
establish that his injury was fairly traceable to the conduct of
Chase in order to pursue the Chase claim and, separately, that his
injury was fairly traceable to the conduct of JPMC in order to
pursue the JPMC claim.
On its review of the pleadings and the cognizable evidence
presented, the Court finds that it is far more likely than not that
JPMC did not call Holland about his credit card accounts, and that
Holland, far from carrying his burden to prove by a preponderance
that jurisdiction exists for the JPMC claim has not presented any
credible evidence to this effect. The evidence adduced does not
literally preclude the possibility that JPMC may have made
robocalls to his telephone numbers, but any finding here to that
effect would rest solely on speculation.
Because Chase's robocalls were not legally attributable to JPMC and
Holland has failed to present a factual basis supporting his
assertion that JPMC itself made any of the robocalls, the Court
lacks subject matter jurisdiction over the JPMC claim.
The Court, therefore, dismisses the JPMC claim, without prejudice.
Motion to Dismiss for Failure to State a Claim Under Rule 12(b)(6)
Defendants now limited to Chase move to dismiss for failure to
state a claim on the grounds that: (1) Holland, by neglecting to
distinguish the conduct of each defendant, fails to satisfy the
pleading requirements of Federal Rule of Civil Procedure 8 (2) his
claim is barred by the doctrine of res judicata and (3) his claim
is barred by the four-year statute of limitations for TCPA claims.
Failure to Distinguish Between the Conduct of Defendants
Defendants first argue that the Complaint fails to satisfy Rule 8
by failing to differentiate among the two defendants, instead
persistently defining Chase and JPMC collectively as CHASE. The
Complaint even blurs the identity of the entity that issued
Holland's accounts and placed the robocalls.
While defendants fairly fault Holland for sloppy pleading,
dismissal on this ground is not required here. Nothing in Rule 8
prohibits collectively referring to multiple defendants where the
complaint alerts defendants that identical claims are asserted
against each defendant. Although Holland cannot establish standing
or avoid a statutory time bar by obfuscating which defendant
engaged in particular conduct, it is clear that his Complaint, at
its core, attributes the calls made to him to Chase personnel.
Under these circumstances, requiring dismissal of the claim against
Chase solely because Holland wrongly lumped JPMC together with
Chase would be a bridge too far.
Res Judicata
Under the doctrine of res judicata, or claim preclusion, a final
judgment on the merits of an action precludes the parties or their
privies from relitigating issues that were or could have been
raised in that action. A party asserting the affirmative defense of
claim preclusion must show that (1) the previous action involved an
adjudication on the merits (2) the previous action involved the
same adverse parties or those in privy with them and (3) the claims
asserted in the subsequent action were, or could have been, raised
in the prior action.
A district court may consider a res judicata defense on a Rule
12(b)(6) motion to dismiss when the court's inquiry is limited to
the plaintiff's complaint, documents attached or incorporated
therein, and materials appropriate for judicial notice.
The Chase claim is barred by the doctrine of res judicata, as
defendants have satisfied all the above criteria.
As to the first criterion, it is undisputed that the Gehrich class
action concluded with a dismissal, with prejudice, as a result of a
settlement agreement. Gehrich v. Chase Bank USA, N.A., 316 F.R.D.
215 (N.D. Ill. 2016). And it is clear that a dismissal, with
prejudice, arising out of a settlement agreement operates as a
final judgment for res judicata purposes.
Here, the text of the Gehrich settlement agreement provides that
Chase and JPMC would be released from any and all claims related to
automatic telephone dialing systems or callers using an articial or
prerecorded voice that arose on or before the date of preliminary
approval of the settlement, which occurred on August 12, 2014. As
discussed further below, Holland's Complaint alleges that he
received robocalls only in 2012 and 2013. Nowhere in his Complaint
or in other documents cognizable on the Rule 12(b)(6) motion does
Holland allege that he received robocalls on or after August 12,
2014.
Thus, Holland's claim against Chase is precluded by the Gehrich
class action.
Statute of Limitations
Alternatively, the Chase claim is barred by the TCPA's statute of
limitations. Claims under the TCPA are subject to a four-year
statute of limitations. At the pleading stage, a district court may
dismiss a claim on statute of limitations grounds only if the claim
is clearly untimely on the face of the complaint.
Here, Holland's Complaint alleges that the robocalls began in or
about August of 2012 and continued through August 28, 2013.
Notably, it did not allege that the calls continued past January 9,
2015, four years before January 9, 2019, when the Complaint was
filed. Instead, to attempt to justify the otherwise delinquent
filing, the Complaint, in a footnote, declares that the statute of
limitations under the TCPA was tolled prior to Holland opting out
of the settlement class in a certified class action case filed in
the Northern District of Georgia, such that] any calls that were
initiated by defendants to Holland's aforementioned cellular
telephone number after August 16, 2012 are subject to liability
under the TCPA.
To be sure, in the Holland Declaration submitted in opposition to
the motion to dismiss, Holland, for the first time, alleged that
the robocalls he received from Chase, which are the subject of this
lawsuit, continued after January 9, 2015. But, as discussed above,
Holland may not shore up a deficient complaint through extrinsic
documents submitted in opposition to a defendant's motion to
dismiss.
Thus, on the face of the Complaint, the Chase claim, measured by
the allegations in the Complaint, is time-barred.
The Court grants defendants' motion to dismiss. The dismissal is,
however, without prejudice to plaintiff's right to replead,
consistent with the parameters set in this decision.
A full-text copy of the District Court's August 28, 2019 Opinion
and Order is available at https://tinyurl.com/y6z5nwwh from
Leagle.com.
Steven W. Holland, Plaintiff, represented by David Patrick
Mitchell, Morgan & Morgan Complex Litigation Group.
JPMorgan Chase Bank, N.A. & Chase Bank USA, N.A., Defendants,
represented by Arjun Rao -- arao@stroock.com -- Stroock & Stroock &
Lavan LLP & Ali Fesharaki -- afesharaki@stroock.com -- Stroock &
Stroock & Lavan LLP.
JUST ENERGY: White Sues over Inflated Share Price
-------------------------------------------------
THADDEUS WHITE, Individually and On Behalf of All Others Similarly
Situated, the Plaintiff, vs. JUST ENERGY GROUP, INC., PATRICK
MCCULLOUGH and JIM BROWN, the Defendants, Case No. 1:19-cv-08236
(S.D.N.Y., Sept. 4, 2019), is a securities class action on behalf
of purchasers of the securities of Just Energy between May 16, 2018
and August 19, 2019, inclusive.
According to the complaint, each of the defendants is liable as a
participant in a fraudulent scheme and course of business that
operated as a fraud or deceit on purchasers of Just Energy
securities by disseminating materially false and misleading
statements and/or concealing material adverse facts.
The scheme (i) deceived the investing public regarding Just
Energy's business, operations, management and the intrinsic value
of Just Energy securities; and (ii) caused plaintiff and other
members of the Class to purchase Just Energy securities at
artificially inflated prices.
Just Energy was established in 1997. It is incorporated under the
laws of Canada and is operated out of dual headquarters in Houston,
Texas and Toronto, Ontario. Just Energy’s common stock trades on
the New York Stock Exchange under the symbol
"JE". Just Energy purports to be a retail consumer company
specializing in electricity and natural gas commodities, energy
efficiency solutions, and renewable energy options. It has offices
located across the United States, Canada, the United Kingdom,
Ireland, Germany and Japan, Just Energy and serves approximately
1.7 million residential and commercial customers.[BN]
Attorneys for the Plaintiff are:
Jeffrey Klafter, Esq.
KLAFTER OLSEN & LESER LLP
2 International Drive, Suite 350
Rye Brook, NY 10573
Telephone: (914) 934 9200
Facsimile: (914) 934 9220
- and -
Steven L. Wittels, Esq.
Burkett McInturff, Esq.
WITTELS LAW
18 Half Mile Road
Armonk, NY 10504
Telephone: (914) 319 9945
Facsimile: (914) 273 2563
KRAFT HEINZ: $3MM Vazquez Labor Suit Settlement Has Prelim OK
-------------------------------------------------------------
In the case, ENRIQUE VAZQUEZ, SERGIO ALFONSO LOPEZ, and MARIA
VIVEROS, individually and on behalf of themselves and others
similarly situated, Plaintiffs, v. KRAFT HEINZ FOODS COMPANY, a
Pennsylvania Corporation, and DOES 1 through 100, inclusive,
Defendants, Lead Case No. 16-CV-02749-WQH-AGS, Case No.
17-cv-00077-WQH-BLM (S.D. Cal.), Judge William Q. Hayes of the U.S.
District Court for the Southern District of California granted the
Motion for Order Granting Preliminary Approval of Class Action
Settlement.
The Judge finds, on a preliminary basis, that the Settlement
Agreement appears to be within the range of reasonableness of a
settlement which could ultimately be given final approval by the
Court. He notes that the Defendant has agreed to pay the Gross
Settlement Amount of at least $3 million in full satisfaction of
the claims as more specifically described in the Settlement
Agreement. Accordingly, he granted the Motion for Order Granting
Preliminary Approval of Class Action Settlement.
The Class Members will be defined as set forth in the Notice of
Motion (i.e., Classes 1a, 1c, 2a, 2c, 4 and 5), all of which were
certified by the Court over a contested Motion for Class
Certification, in addition to all non-exempt employees who worked
for the Defendant during the Class Period in the State of
California as conditional Class Members pursuant to the proposed
Settlement Agreement.
The Judge approved the Notice of Class Action Settlement.
He appointed (i) CPT Group, Inc. as the Administrator to administer
the Settlement, and (ii) law firms of Haines Law Group, APC,
Cohelan Khoury & Singer and the Law Office of Sahag Majarian II be
confirmed as the Class Counsel.
No later than 15 calendar days (or, if that date falls on a weekend
or holiday, the next business day) after the date the Court enters
an order granting preliminary approval of the Settlement, the
Defendant will provide to the Administrator, for each Class Member,
the Class Data.
As soon as practicable after receiving the Class Data, but no later
than 10 business days after its receipt of the Class Data, the
Administrator will mail in both English and Spanish, to the Class
Members: (1) the Notice of Class Action Settlement; (2) a Change of
Address form, and (3) a pre-printed return envelope addressed to
the Settlement Administrator. The Administrator will take those
measures specified and on the conditions set forth in the Agreement
for updating an address subsequent to the first mailing of a Notice
Packet.
On 60 calendar days from the date the Administrator first mails the
Notice Packet to Class Members (or, if the 60th day falls on a
Sunday or holiday, the next business day that is not a Sunday or
holiday), the Class Members who wish to exclude themselves from the
Settlement must postmark and return to the Administrator a request
for exclusion, as set forth in the Agreement and the Notice.
On the Response Deadline, the Class Members who wish to dispute the
information upon which their Settlement Payment will be calculated
must postmark and return to the Administrator an explanation in
writing describing why he or she believes the information is wrong,
along with any supporting information and/or documentation, as set
forth in the Agreement and the Notice.
The Class Members who wish to object to the Settlement must
postmark and return to the Administrator a written Objection on the
Response Deadline, as set forth in the Agreement and the Notice.
The Judge ordered the Defendant to provide notice to all
appropriate governmental entities in compliance with 28 U.S. Code
Section 1715 et seq., (including California or any other state
where Class Members may reside) and submit a statement of
compliance with the Court in a timely manner to prevent delay of
the Effective Date.
The Final Approval Hearing will be held before the undersigned at
11:00 a.m. on Dec. 13, 2019. All briefs and materials in support
of an Order Granting Final Approval of the Class Action Settlement
and the Class Representatives' Service Payment, payment to
California Labor Workforce and Development Agency, Administration
expenses, and attorneys' fees and litigation costs will be filed
with this Court at least 28 calendar days before the Final Approval
Hearing.
Pending further order of the Court, all proceedings in the matter,
except those contemplated herein and in the Agreement are stayed.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/blddXm from Leagle.com.
Enrique Vazquez, individually and on behalf of himself and others
similarly situated, Plaintiff, represented by Marta Manus, Cohelan
Khoury & Singer, Michael D. Singer -- msinger@ckslaw.com --
Cohelan, Khoury & Singer & Paul K. Haines --
phaines@haineslawgroup.com -- Haines Law Group, APC.
Sergio Alfonzo Lopez, as an individual and on behalf of all others
similarly situated, Plaintiff, represented by Paul K. Haines,
Haines Law Group, APC, Sean M. Blakely, Haines Law Group, APC &
Tuvia Korobkin -- tkorobkin@haineslawgroup.com -- Haines Law
Group,
APC.
Maria Viveros, individually and on behalf of himself and others
similarly situated, Plaintiff, represented by Paul K. Haines,
Haines Law Group, APC.
Kraft Heinz Foods Company, a Pennsylvania Corporation, Defendant,
represented by Daniel B. Chammas -- dchammas@venable.com -- Ford &
Harrison LLP, Alexandria Marie Witte -- awitte@fordharrison.com --
Ford & Harrison LLP & David Lishian Cheng --
cheng@fordharrison.com
-- Ford & Harrison LLP.
L BRANDS: Continues to Defend Shareholder Class Action in Ohio
--------------------------------------------------------------
L Brands, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on September 6, 2019, for the
quarterly period ended August 3, 2019, that on July 2019, a
plaintiff shareholder filed a putative class action complaint in
the U.S. District Court for the Southern District of Ohio alleging
that the Company made false and/or misleading statements relating
to the November 2018 announcement that the Company was reducing its
quarterly dividend.
The Company views this lawsuit as meritless and intends to defend
against this lawsuit vigorously.
L Brands, Inc. sells women's apparel and beauty products. The
Company offers various products including women's apparel, women's
lingerie, beauty and personal care products, home fragrances, and
other related products and accessories. L Brands serves customers
in the United States, Canada, and the United Kingdom through
specialty retail stores, websites, and catalogues. The company is
based in Columbus, Ohio.
LAKE ARBOR, MI: Apartment Tenants' Class Action Pending
-------------------------------------------------------
David Boraks, writing for WFAE, reports that despite announcements
of new projects this year, affordable housing remains in short
supply in Charlotte as the city loses existing units to
redevelopment. The housing squeeze got even tighter two weeks ago
when owners of the run-down Lake Arbor Apartments on Charlotte's
west side announced they're shutting it down for renovations and
kicking out tenants.
The owners' lawyer says they hope the move will ease financial
pressures from fines and lawsuits over building code violations.
Doris Deese has lived at Lake Arbor for four years and pays $780
per month. She likes the location because it's on Tuckaseegee Road
on a city bus line, and she can walk to the Food Lion grocery
nearby. Now that she has to leave, Deese isn't sure where she'll
go.
"I've been looking, but that's a problem with us that can't afford
the apartments. Some with health, and some older people. They
can't, um, don't make that much income," Deese said, standing on a
street corner near her apartment. "Me, I've been praying about it,
sayin' help me, help us get out of these apartments."
Lake Arbor's owners told tenants in a letter July 30 they have to
be out by the end of the year. The shutdown affects 177 of Lake
Arbor's 288 units -- the rest are vacant. Residents in about 78
units have been told to move out sooner -- by the end of August --
because their leases are expired.
Searching In A Tight Market
It's one of Charlotte's largest tenant displacements in recent
years. Crisis Assistance Ministry, the Salvation Army and other
social service agencies are helping Lake Arbor tenants look for new
housing.
"What we're trying to do here is to assess these families so that
we can help ensure that they remain housed and don't end up in a
shelter or considered homeless," said Liana Humphrey, a spokeswoman
for Crisis Assistance.
Humphrey said losing 177 units all at once makes the hunt for new
housing all the more difficult.
"For this community, that's a lot of families that will have to
find housing at a price point where housing is difficult to find,"
she said.
Lake Arbor's tenants pay between $500 and $900 a month, according
to the owners. That's well below the citywide average (in various
surveys) of more than $1,100.
Looking Beyond Mecklenburg?
Rising prices for housing have led to a big deficit in the number
of available affordable units in Charlotte. Now-obsolete studies
have put the number at 24,000 to 34,000 units. But city officials
have said recently they aren't sure what the number is, and admit
it's growing as more units are lost. About one-third of Charlotte
households are now considered housing cost-burdened, meaning they
pay more than a third of their incomes on housing.
Jessica Moreno, a community organizer with Action NC, also has been
working with Lake Arbor residents. She said they're scared because
they don't know where they're going to find anything comparable.
Moreno thinks many will have to move out of Mecklenburg County --
and she speaks from experience. The Matthews mobile home park
where she lived closed last December to make way for high-end
apartments, forcing her and other tenants to relocate.
"I had to. I'm in Gastonia. So I'm assuming a lot of people [at
Lake Arbor] are going to have to," Moreno said. "... If we couldn't
find housing that was affordable, imagine all the residents here."
Moreno says her experience of displacement prompted her to become
an organizer, to help other tenants.
In Need Of Repair
Lake Arbor was built in 1974 and is now owned by two limited
liability companies -- Lake Arbor 80M TIC and Lake Arbor Dean TIC
-- both affiliated with Read Property Group of Brooklyn, New York.
The investors bought the property in November 2014 and have
struggled to keep it in good repair.
Tomeka Barnes has lived here for six years and said she has
complained about mold, roof leaks and other problems.
"This place is ridiculous. When I tell you it's ridiculous, you got
raccoons running around here, water bugs coming in my house. I got
health problems. It's mold in my ceiling. When it rains, my roof is
leaking," Barnes said.
"They won't do nothing about it. I done told them a thousand times.
I done called code enforcement, code enforcement won't do nothing.
And I'm just ready to go. I'm ready to move. I've been ready to
move."
The big question is where. Barnes said she and her husband live on
her $700-a-month disability payments and his job, which pays $11 an
hour. They pay a little over $700 a month in rent. It's been hard
finding anything in Charlotte at that level, she said.
"Some of the apartments they want 8(00)-something, some of 'em want
7(00)-something. Some of 'em (are) doing waiting lists. Some of 'em
you have make twice the rent and all of that. I don't want to sit
back and be waiting on no waiting list. I want something, like
ASAP," she said.
Troubles Prompt Order To Vacate
The Charlotte lawyer for Lake Arbor's owners, Erik Rosenwood, said
they decided to push people out after a year of legal troubles.
A sweep by city housing inspectors last fall found dozens of
violations and the city began assessing daily fines -- now totaling
several hundred thousand dollars and still accruing, Rosenwood
said.
And then there are the lawsuits -- some from individual tenants
and, in June, a class-action suit on behalf of more than 100
tenants, filed by the N.C. Justice Center, Charlotte for Legal
Advocacy and other advocates.
That all added up, said Rosenwood.
"It's sort of like a snowball rolling downhill. We've continued to
accumulate problems as we move forward. Not only the class-action
lawsuit but several lawsuits by Legal Aid. And so, again, it just
every step of the way it was getting more and more complicated to
continue to operate it as a going concern," he said.
Rosenwood said they hope by doing the construction without tenants,
they'll get a reprieve from daily fines.
"One of the considerations is that when you go in and you close the
property down and you turn it into a construction site, not only
will we be finished faster, but there's some circumstances under
which the fines stop accruing," he said.
Incentives To Leave
But first, Lake Arbor has to get tenants out. In that July 30
letter, Lake Arbor offered tenants an incentive package if they
clean out their apartments and leave quickly. That includes
cancelation of past-due rent and immediate return of security
deposits -- instead of waiting 30 days as allowed by state law. But
residents also must sign a legal release, Rosenwood said.
"What we're offering people is an incentive package which is sort
of a, you know, let's part ways amicably. And so it's just a broad
general release," he said.
But legal advocates are warning tenants to talk to a lawyer before
accepting the deal and signing anything. They could be giving up
their rights, said Jack Holzman, a lawyer with North Carolina
Justice Center.
"I have not seen the release, so I don't know specifically what is
being asked for. But like I said, there are various rights under
North Carolina law. A release could have tenants agree not to sue
Lake Arbor for any past conduct. You know, that certainly would be
a waiving of their rights in that regard," Holtzman said.
Action NC organized a community meeting with legal advocates so
residents could ask questions about the incentives and any strings
attached.
A Year Of Work
Lake Arbor's owners expect to spend at least $2 million on
renovations, according to Rosenwood. They hope to finish by late
next spring or early summer and reopen -- with higher rents.
Action NC organizer Jessica Moreno says that means current tenants
are unlikely to return.
"Once they fix the property, they're gonna raise the rents. The
same people that can afford to live here now won't be able to
afford it after they raise the rents," Moreno said.
But at least some tenants could be invited back. Rosenwood said the
owners are considering offering below-market rents to make it
possible.
"Anyone who had a good history with Lake Arbor in the past would be
invited to reapply as a tenant going forward and someone who has a
consistent and long payment history, that's somebody we value and
we'd like to have back," he said. "And so I think there's going to
be a consideration offered in terms of possibly below-market rent
for those." people.
Lake Arbor's owners have a long way to go. That end-of-year
deadline to have all tenants out is a goal, and they may not make
it. Rosenwood said about 18 tenants have leases that expire in
2020, and they'll have the right to stay.
"Once we can get the property completely emptied then it would turn
into a construction site only, until it was completely renovated.
Then all inspections would be conducted. And once we had the entire
property passed, then we could reopen without fear of continuing to
generate lawsuits, complaints, bad press, all this other stuff,"
Rosenwood said.
And as for those lawsuits, they're still pending. Lake Arbor has
moved the class-action suit from state court to federal court.
Tenants are now weighing whether to oppose that, or let their fight
go forward in federal court, said Holtzman, who is representing the
tenants. [GN]
LEGACYTEXAS FINANCIAL: Tijerina Balks at Prosperity Merger Deal
---------------------------------------------------------------
Richard Tijerina individually and on behalf of all others similarly
situated, the Plaintiff, vs. LEGACYTEXAS FINANCIAL GROUP, INC.,
ANTHONY J. LEVECCHIO, GEORGE FISK, ARCILIA ACOSTA, KEVIN J.
HANIGAN, BRUCE HUNT, BRIAN MCCALL, KAREN H. O'SHEA, and GREG
WILKINSON, the Defendants, Case No. 4:19-cv-00640 (E.D. Tex., Sept.
4, 2019), seeks to enjoin a stockholder vote on a proposed merger
transaction unless and until Securities Exchange Act violations are
cured.
On June 17, 2019, LegacyTexas and Prosperity Bancshares, Inc.
issued a joint press release announcing they had entered into an
Agreement and Plan of Reorganization. Under the terms of the Merger
Agreement, LegacyTexas stockholders will be entitled to receive
0.5280 shares of Prosperity common stock and $6.28 cash for each
share of LegacyTexas common stock they own. Based on Prosperity
stock's June 14, 2019 closing price of $67.24, the Merger
Consideration is valued at approximately $41.78 per share and the
Proposed Transaction is valued at approximately $2.1 billion.
On August 23, 2019, Prosperity and LegacyTexas filed a joint proxy
statement/prospectus on Form S-4 with the SEC. The Registration
Statement, which recommends that LegacyTexas stockholders vote in
favor of the Proposed Transaction, omits or misrepresents material
information concerning, among other things: (I) LegacyTexas' and
Prosperity's financial projections, relied upon by the Company's
financial advisor, J.P. Morgan Securities LLC, in its financial
analyses; (ii) the data and inputs underlying the financial
valuation analyses that support the fairness opinion provided by
J.P. Morgan; and (iii) the background of the Proposed Transaction.
The failure to adequately disclose such material information
constitutes a violation of Sections 14(a) and 20(a) of the Exchange
Act as LegacyTexas stockholders need such information in order to
cast a fully-informed vote in connection with the Proposed
Transaction, the lawsuit says.
LegacyTexas Financial operates as a bank holding company. The
Company, through its banking subsidiaries, accepts deposits, makes
loans, and provides other financial services for the general
public.[BN]
Plaintiff's Counsel are:
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Avenue
Oklahoma City, OK 73120
Telephone: (405) 235-1560
Facsimile: (405) 239-2112
E-mail: wbf@federmanlaw.com
- and -
Richard A. Acocelli, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 0036
Telephone: (212) 682-3025
Facsimile: (212) 682-3010
- and -
Alexandra B. Raymond, Esq.
BRAGAR EAGEL & SQUIRE, P.C.
885 Third Avenue, Suite 3040
New York, NY 10022
Telephone: (212) 308-5858
Facsimile: (212) 486-0462
E-mail: raymond@bespc.com
LEXINGTON LAW: Court Stays Rosales Pending Pena Deal Approval
-------------------------------------------------------------
Magistrate Judge Cheryl R. Zwart of the U.S. District Court for the
District of Nebraska stayed the case, EUGENE ROSALES, on behalf of
himself and all others similarly situated; Plaintiff, v. JOHN C.
HEATH, Attorney at Law; Defendant, Case No. 8:17CV87 (D. Neb.),
pending rulings on Rosales' motion to stay, and the Florida
parties' motion for approval of a class action settlement in Pena
v. John C. Heath, Attorney At Law, PLLC, 1:18-cv-24407-UU (S.D.
FL).
The parties have engaged in ongoing battles over whether Plaintiff
Rosales can represent a class in this forum in light of Rosales'
background as a client of the Defendant, and the settlement reached
in Pena. The settlement in Pena is subject to court approval, with
a motion requesting approval filed on May 3, 2019, and now pending
in the Florida forum.
Plaintiff Rosales filed a motion in the Florida forum, asking the
court to stay any approval of the Florida settlement pending a
resolution the Nebraska case. In the instant Nebraska lawsuit, the
Defendant opposes entry of a case progression order, asking the
Court to stay the Nebraska litigation pending rulings on the
motions pending in the Florida forum. Rosales requests a case
progression schedule and class discovery in the Nebraska case.
After reviewing the Florida filings on PACER, the arguments briefed
in the Florida forum are the same as those orally argued to
Magistrate Judge Zwart. In the Florida case, Rosales has fully
briefed his request that the Florida lawsuit be stayed in favor of
proceeding as a class representative in the Nebraska litigation.
Rulings from the briefed and pending motions in the Florida
litigation may resolve the class action issues in this forum, thus
limiting Rosales' claims to, at most, that of an opt-out
Plaintiff.
The Court certainly has no better ability than the Florida court to
decide the stay issues raised by Rosales, and if a stay is denied,
whether the settlement presented to the Florida court should be
approved. Any decision on the stay issue in this forum would
undermine the goal of avoiding duplicative work by the Court and
perhaps inconsistent rulings. And any motion practice and/or case
progression in the instant case may subject the parties to wholly
unnecessary litigation work and expense.
Accordingly, Magistrate Judge Zwart stayed the case pending rulings
on Rosales' motion to stay, and the Florida parties' motion for
approval of a class action settlement in Pena. The clerk will mail
a courtesy copy of the Order to District Judge Ursula Ungaro and
Magistrate Judge John J. O'Sullivan, both of whom are judges for
the U.S. District Court for the Southern District of Florida.
A full-text copy of the Court's Aug. 6, 2019 Order is available at
https://is.gd/Jr6MwX from Leagle.com.
Eugene Rosales, on behalf of himself and all others similarly
situated, Plaintiff, represented by Sergei Lemberg, LEMBERG LAW &
Stephen F. Taylor, LEMBERG LAW FIRM, pro hac vice.
John C. Heath, Attorney at Law, doing business as Lexington Law
Firm, Defendant, represented by Chad R. Fuller --
chad.fuller@troutman.com -- TROUTMAN, SANDERS LAW FIRM, pro hac
vice, David N. Anthony -- david.anthony@troutman.com -- TROUTMAN,
SANDERS LAW FIRM & Julie D. Hoffmeister --
julie.hoffmeister@troutman.com -- TROUTMAN, SANDERS LAW FIRM.
LIBERTY MUTUAL: Court Narrows Claims in First State's Suit
----------------------------------------------------------
In the case, FIRST STATE ORTHOPAEDICS, P.A., on behalf of itself
and all others similarly situated, Plaintiff, v. LIBERTY MUTUAL
INSURANCE COMPANY, ET AL., Defendants, C.A. No. N15C-12-054 WCC
CCLD (Del. Super.), Judge William C. Carpenter, Jr. of the U.S.
Superior Court of Delaware (i) granted in part and denied in part
the Plaintiff's Motion for Partial Summary Judgment; and (ii)
granted in part and denied in part the Defendants' Cross-Motion for
Partial Summary Judgment.
On April 3, 2017, First State filed an amended proposed class
action Complaint against insurer-members of the Liberty Mutual
Group of insurance companies, seeking recovery of statutory
interest allegedly owed under 19 Del. C. Section 2322F(h) of the
Delaware Workers' Compensation Act. The Plaintiff brought suit on
behalf of all Delaware health care providers who, at any time since
Dec. 4, 2012, submitted health care invoices to one or more
Defendants for care provided to Delaware workers' compensation
claimants where: (i) the invoiced the Defendant failed to contest
the sufficiency of the invoice's "data elements" within 30 days of
receipt, (ii) though ultimately paid by the invoiced Defendant, the
invoice was paid only after the expiration of the 30-day period
under section 2322F(h), and (iii) the invoiced Defendant's payment
of the invoice was unaccompanied by the statutory interest provided
under 2322F(h). Essentially, First State is attacking the
Insurers' alleged practice of generally refusing to pay the 1%
interest on unpaid invoices as mandated by Section 2322F(h), a
claim denied by the Defendants.
On June 18, 2018, the Plaintiff filed the instant Motion for
Partial Summary Judgment regarding the meaning and effect of the
two statutory provisions at issue. First State argues that, under
Sections 2362(b) and 2322F(h), if a covered invoice is not paid
within the 30-day window, it is an "unpaid" invoice for which
statutory interest accrues. The Plaintiff further contends that
there is no "good faith" exception to the statutory interest
provision set out in Section 2322F(h). Thus, according to First
State, even if a workers' compensation claim is timely denied in
"good faith" but eventually gets paid outside the 30-day window,
statutory interest for that invoice began to accumulate on the
thirty-first day after the Insurers initially received it.
In response, the Defendants filed a Cross-Motion for Partial
Summary Judgment regarding its interpretation of the two statutes.
The Insurers contend that Sections 2362(b) and 2322F(h) by their
plain terms, confirm that interest is not owed under circumstances
where an insurer, within 30 days of receiving the invoice, either
(i) contests the invoice in good faith, or (ii) requests further
verification to support the charge. According to the Defendants,
if an insurance carrier has a good-faith basis to deny coverage for
the invoice or request additional documentary support, no statutory
interest is owed until 30 days after the provider submits the
documentation necessary to validate the charge"9 or its denial has
been overturned by the Industrial Accident Board.
The Court heard oral arguments on the Plaintiff and Defendants'
Cross-Motions for Partial Summary Judgment on Sections 2362(b) and
2322F(h), and it reserved decision.
Judge Carpenter holds that the initial part of the statute requires
the insurance company to pay an invoice within 30 days of receipt
of that invoice as long as the claim contains substantially all the
required data elements necessary to adjudicate the invoice.
Logically, if the claim information is deficient, this would delay
the 30-day clock, as the insurance company is presumably unable to
process the claim due to a lack of information from the provider.
As such, the invoice is not in an "unpaid" status at that time as
"all the requirement data elements necessary to adjudicate the
invoice" are not present. However, once the information requested
is provided to the insurance company, the clock begins to run
again, and unless further information is demanded or the claim is
denied, interest would again become due on the thirty-first day
after the provider submitted the requested information.
The good faith denial situation, however, is different, as it
assumes that the insurance company has received all of the
information it needs to process an invoice and make a decision.
So, the only basis for denying a claim is that the insurer believes
the information provided does not justify payment. As long as the
invoice remains in a disputed classification, no payment is
required.
However, the issue that remains is what interest is due if the
Board subsequently finds that an insurance company's denial was not
justified and orders payment. When this occurs, the Judge finds
that the interest calculation relates back to the 31st day after
the invoice was initially received by the insurer. The Board's
decision to order payment essentially suggests that the insurance
company did not have a good faith basis to deny the claim. So,
logically, the Plaintiff should not be penalized in that situation,
and the interest rate must fairly return to the date the insurance
company was required to pay the claim. Obviously, if the Board
decided the claim was appropriately denied, no payment would be
required and no interest would accrue.
If the statutes were not interpreted in this fashion, it would give
the Insurers a limitless ability to deny payments and experience no
penalty if their denial was later found to be invalid. Clearly,
the legislature intended some adverse consequence for the
inappropriate denial of benefits in a timely manner, and only
interpreting the statute in the manner the Court has done above
would result in the penalty contemplated by the General Assembly.
The Uudge recognizes there are also scenarios in which the Insurers
may, for whatever reason and without the Board's prompting, decide
to submit a late payment on an invoice they had previously denied
in "good faith." In these instances, the same "formula" for
determining when statutory interest begins to accumulate would be
applied.
Finally, the Judge acknowledges that such a "bright-line" rule
becomes unfair for each party under certain circumstances. However,
the insurance carrier should not receive any advantage by not
having to pay interest for denying a claim that the Board
subsequently finds it should have paid. Even under the holding the
Judge has reached in the casee, the Board retains the inherent
authority to modify interest based on any unique or unusual
circumstances presented to it.
For the foregoing reasons, Judge Carpenter (i) granted in part and
denied in part the Plaintiff's Motion for Partial Summary Judgment
on the meaning of 19 Del. C. Sections 2362(b) and 2322F(h); and
(ii) (i) granted in part and denied in part the Defendants'
Cross-Motion for Partial Summary Judgment.
A full-text copy of the Court's Aug. 6, 2019 Memorandum Opinion is
available at https://is.gd/YQJrXL from Leagle.com.
John S. Spadaro, Esquire (Argued); John Sheehan Spadaro LLC, 54
Liborio Lane, Smyrna, DE 19977. Attorney for Plaintiff.
Kevin J. Connors, Esquire -- kjconnors@mdwcg.com; Marshall Dennehey
Warner Coleman & Goggin, 1007 North Orange Street, Suite 600,
Wilmington, DE 19801. Attorney for Defendants.
Tiffany Powers, Esquire (Argued) -- tiffany.powers@alston.com;
Andrew Hatchett, Esquire -- andrew.hatchett@alston.com; Alston &
Bird LLP, 1201 West Peachtree Street, Atlanta, GA 30309. Attorneys
for Defendants.
LLANOS MAINTENANCE: Court Dismisses ERISA Suit
----------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion denying Plaintiffs' Unopposed Motion for Default
Judgment in the case captioned NEW JERSEY BUILDING LABORERS'
STATEWIDE BENEFIT FUNDS and THE TRUSTEES THEREOF, Plaintiffs, v.
LLANOS MAINTENANCE SERVICE and MJO DRY WALL CONSTRUCTION LLC,
Defendants. Civil No. 18-cv-13118 (KSH) (CLW). (D.N.J.).
This action is brought pursuant to Sections 502(a)(3) and 515 of
the Employment Retirement Income Security Act (ERISA) and Section
301 of the Labor Management Relations Act (LMRA), to collect
delinquent contributions to employee benefit plans and for related
relief. Plaintiffs assert that Llanos failed to make the required
contributions and subsequently failed to cure the delinquencies
despite demand.
Llanos and MJO were served a copy of the summons and complaint on
September 28, 2018 and October 1, 2018 respectively. Notice of
default was entered on November 14, 2018.
Plaintiffs filed their motion for default judgment (D.E. 8) against
both Llanos and MJO in the total amount of $2,957,167.55, comprised
of a principal amount of $1,793,214.34; plus liquidated damages at
20% on delinquent contributions of $358,642.87; interest on
principal at 1.5% compounded per month from the date when
contributions were due in the amount of $400,999.61; attorney's
fees totaling $403,510.73; and the $800.00 arbitration fee.
As of the date of this Opinion and accompanying order, defendants
have not appeared in this action or otherwise responded to the
complaint or plaintiffs' motion for default judgment.
Standard for Default Judgment
Fed. R. Civ. P. 55(b)(2) authorizes the entry of a default judgment
against a properly served defendant who does not file a timely
responsive pleading. In ruling on the motion, the Court accepts the
complaint's well-pleaded factual allegations as true but need not
accept the moving party's legal conclusions or allegations relating
to the amount of damages and must ascertain whether the
unchallenged facts constitute a legitimate cause of action, since a
party in default does not admit mere conclusions of law.
The Court's Jurisdiction
As a threshold determination, the Court must verify whether it has
both subject matter jurisdiction over plaintiffs' cause of action
and personal jurisdiction over defendants. This determination is of
particular concern where, as here, the defaulting party has failed
to make any sort of appearance or submit any responsive
communication to the Court.
Here, plaintiffs assert that the present action is brought under
sections 502(a)(3) and 515 of ERISA and section 301 of the LMRA to
collect delinquent contributions to employee benefit plans and for
related relief and rely upon three federal statutes for
jurisdiction purposes: 28 U.S.C. Section 1331.
The Court first raised the issue of jurisdiction in its January 9,
2019 order for plaintiffs to show cause why the within matter
should not be dismissed and the remedy sought be pursued by way of
a supplemental proceeding based upon the judgment of the district
court entered July 16, 2018.
Plaintiffs' response asserts that in Peacock v. Thomas, 516 U.S.
349, 357 (1996), the Supreme Court held that although federal
courts have ancillary jurisdiction to enforce their own judgments,
that power does not extend beyond attempts to execute, or to
guarantee eventual executability of, a federal judgment.
In other words, district courts do not maintain ancillary
jurisdiction over new actions in which a federal judgment creditor
seeks to impose liability for money judgment on a person not
otherwise liable for the judgment.
Plaintiffs conclude that because the Complaint alleges substantive
theories to establish liability directly on the part of a third
party to the Judgment, MJO the residual federal jurisdiction from
the action against Llanos does not flow to such a claim and thus,
the relief Plaintiffs are seeking in this action cannot be pursued
through supplementary proceedings on the Judgment.
Reversing these decisions, the Supreme Court held that because
Thomas's veil-piercing claim does not state a cause of action under
ERISA, it cannot independently support federal jurisdiction. The
Court concluded that because plaintiff alleged no underlying
violation of any provision of ERISA or ERISA plan, neither ERISA's
jurisdictional provision supplied the District Court with
subject-matter jurisdiction over this suit.
Plaintiffs' complaint raises three theories of recovery: the single
employer doctrine, the alter-ego doctrine, and the successor
liability doctrine. None alleges an independent cause of action
under ERISA.
To begin with, MJO was incorporated on or about August 9, 2017,
foreclosing any possibility that MJO was responsible for the
commission of the original ERISA violation. The complaint does not
allege, nor do its factual allegations support in any way that MJO
committed a new and distinct ERISA violation. To the contrary, the
pleadings seek to establish not that the Non-Judgment Defendants
committed an ERISA violation, but that they bear liability for the
judgment Plaintiffs already obtained.
Plaintiffs may well have grounds for relief on the basis of imputed
third-party liability, but relevant cases have made clear that
federal courts' jurisdiction over ERISA claims does not substitute
for jurisdiction over non-judgment defendants. As a consequence,
their complaint must be dismissed.
Plaintiffs' motion for default judgment is denied for lack of
subject matter jurisdiction, and the complaint is dismissed.
A full-text copy of the District Court's August 28, 2019 Opinion is
available at https://tinyurl.com/y5dk9boj from Leagle.com.
NEW JERSEY BUILDING LABORERS STATEWIDE BENEFIT FUNDS AND THE
TRUSTEES THEREOF, Plaintiff, represented by JENNIFER CHANG --
JChang@krollfirm.com -- KROLL HEINEMAN CARTON.
LLR INC: 2nd Amended Porsch Suit Dismissed without Prejudice
------------------------------------------------------------
Judge Denise Cote of the U.S. District Court for the Southern
District of New York dismissed with prejudice the case, LAUREN
PORSCH, individually and on behalf of all others similarly
situated: Plaintiff, v. LLR, INC. d/b/a LULAROE and LULAROE, LLC,
Defendants, Case No. 18cv9312 (DLC) (S.D. N.Y.), for lack of
subject matter jurisdiction.
Porsch has brought the action invoking federal subject matter
jurisdiction under the Class Action Fairness Act ("CAFA"). Porsch
alleges that Defendants LLR Inc. and LuLaRoe, LLC improperly
collected sales tax on online clothing purchases that were shipped
to consumers in New York between December 2016 and February 2017.
It is undisputed that LLR refunded those improperly collected taxes
to the customers. The Second Amended Complaints ("SAC") asserts
claims for violation of New York General Business Law ("GBL")
Section 349, as well as for common law conversion and
misappropriation under New York law.
In their motion to dismiss the SAC, the Defendants did not
challenge the amount in controversy. Federal courts have an
independent obligation to consider the presence or absence of
subject matter jurisdiction sua sponte. Pursuant to that
obligation, an Order of May 1, 2019 directed the parties to submit
supplemental briefing as to whether the $5 million amount in
controversy requirement of CAFA is met in the case. That briefing
became fully submitted on May 28.
Judge Cote finds that it is clear from the SAC, and Porsch readily
admits, that all of the allegedly overcharged sales taxes were
refunded before the suit was filed. The only amount that Porsch
and the putative class may recover as compensatory damages,
therefore, is the amount of interest they could have earned on the
overcharged amount during the period that the funds were withheld.
Generously assuming that the full overcharged amount ($217,898.14)
was withheld from Dec. 1, 2016 (the beginning of the class period)
until Oct. 11, 2018 (the date the action was filed), the total
interest accrued would be approximately $36,000. This calculation
significantly overestimates the damages alleged in the complaint,
however. Porsch was refunded all of the money that she was
overcharged by June 2017. It is not clear how long before the
action was filed the remaining putative class members received
their refunds.
The Judge also finds that whether the SAC alleges facts sufficient
to support an award of punitive damages need not be addressed.
Even assuming that punitive damages are available, punitive damages
in thes case could not reasonably exceed $360,000, that is, 10
times the actual damages allegedly suffered by the aggregate
class.
It is well-settled in the Second Circuit that attorney's fees may
only be considered as part of the amount in controversy if they are
"recoverable as a matter of right." GBL Section 349 provides that
a court "may award reasonable attorney's fees to a prevailing
plaintiff." The use of the word "may" indicates that the award of
attorney's fees is discretionary, and not a matter of right.
Attorney's fees therefore may not be included in the amount in
controversy calculation in the case.
Finally, after combining statutory damages under GBL Section 349,
treble damages under GBL Section 349, compensatory damages for
conversion, and punitive damages, the amount in controversy in the
case may be no greater than $3,721,750. The Judge therefore holds
that the Court lacks subject matter jurisdiction under CAFA.
Because it is clear to a legal certainty, on the face of the SAC,
that the amount in controversy in the case is far below $5 million,
the Court lacks subject matter jurisdiction under 28 U.S.C. Section
1332(d)(2). Accordingly, Judge Cote dismissed the case without
prejudice. The Clerk of Court is directed to close the case.
A full-text copy of the Court's Aug. 2, 2019 Opinion and Order is
available at https://is.gd/KY5WnO from Leagle.com.
Lauren Porsch, individually and on behalf of all others similarly
situated, Plaintiff, represented by Kelly Iverson --
contact@carlsonlynch.com -- Carlson Lynch, LLP, Kevin W. Tucker,
Carlson Lynch Sweet Kilpela & Carpenter, LLP, Ronald Bruce Carlson
-- bcarlson@carlsonlynch.com -- Carlson Lynch Sweet & Kilpela, LLP
& Edwin David Hoskins, Law Offices of E. David Hoskins, LLC.
LLR, Inc., doing business as LuLaRoe & LuLaRoe, LLC, Defendants,
represented by Steven Robert Kramer -- skramer@eckertseamans.com --
Eckert, Seamans, Cherin & Mellott LLC, Randolph T. Moore --
rmoore@swlaw.com -- Snell & Wilmer, LLP & Steven Graham --
sgraham@swlaw.com -- Snell & Wilmer, LLP.
LOS ANGELES, CA: Search Warrant Served Relating to DWP Case
-----------------------------------------------------------
Sophanith Song, writing for The Organization for World Peace,
reports that the FBI investigated the Los Angeles Department of
Water and Power (DWP) due to newly reviewed portions of the warrant
served at DWP during the raid in July, which indicates a broader
federal probe than was previously known. In July, the FBI raided
the department to find the documents related to the incident on the
department's newly introduced billing system. Regarding the needed
documents, the FBI demanded essential information concerning the
cybersecurity and physical security issues at the department from
June 2008, according to the Los Angeles Times. Also, the FBI
requested for other information, including the department's
compliance with industry-standard security, any manipulation over
compliance history records, recent international travel by the
department's officials, and any contractual associations between
the sector and other corporate entities, domestic and foreign.
Israel Electric Corporation, which is the largest supplier of
electrical power in Israel, was also among the listed attendees at
a DWP event in Israel, according to the travel expense obtained by
Times through a public records request. According to the Israel
Electric Spokesperson, Iris Ben-Shahal, the company was not fully
aware of the situation regarding the FBI investigation; however, it
would continue to subscribe to "developments and their relevance to
the parties' relation, if there [are] any". Another one of the
listed attendees is suspected to be Israel-based Cybersecurity
company, Cybergym, which, based on its website, operates arena-like
facilities in which the companies are trained to counter
cyberattacks from outsiders. However, it has not been established
that the company mentioned in the warrant was the company listed as
attending the DWP event.
According to the ABC7 Eyewitness News, the L.A City Attorney's
Office stated that the search warrant served on its employees
relates to the process of taking legal action regarding the issue
of the new billing system that was introduced by the Department of
Water and Power. The Office released a statement: "The FBI served
search warrants for documents on several City employees at both CHE
and DWP offices, including some of our staff members. The warrants
served on our staff relate to issues that have arisen over the
class action litigation and settlement surrounding the DWP billing
system, and the City's lawsuit against PwC. We have and will
continue to cooperate fully with the expectation that the
investigation will be completed expeditiously." An FBI specialist
who spoke to the ABC Eyewitness News reporters stated that this
search warrant is complex, and could be a public corruption
investigation. From his own statement, "it's going to require a lot
of approvals within the FBI here in Los Angeles and also back in
Washington, D.C. at headquarters, but if you have the information,
if you have the probable cause, if you have verifiable and
substantial documentary information that shows that you need to go
into certain offices at City Hall or some of these other locations,
then yes, you can get the search warrant. A judge will approve it
if the information is there."
Los Angeles's Mayor Eric Garcetti released a statement to the
public:
"We were notified that federal search warrants were being executed.
The Mayor believes that any criminal wrongdoing should be
investigated and prosecuted. His expectation is that any City
employee asked to cooperate will do so fully and immediately."
[GN]
LVNV FUNDING: Court Narrows Claims in Norton's FDCPA Suit
---------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order granting in part and denying in part
Defendants' Motion to Dismiss in the case captioned SONYA NORTON,
Plaintiff, v. LVNV FUNDING, LLC, et al., Defendants. Case No.
18-cv-05051-DMR. (N.D. Cal.).
A non-party Arrow Financial Services, LLC (Arrow) filed a
collections action against Norton in San Mateo County Superior
Court, alleging that Norton failed to tender owed amounts to Arrow.
Plaintiff Sonya Norton filed this putative class action against
Defendants LVNV Funding, LLC (LVNV) and Law Office of Harris & Zide
(H&Z) alleging violations of the federal Fair Debt Collection
Practices Act (FDCPA) and California's Fair Debt Collection
Practices Act (Rosenthal Act), California Civil Code Section 1788
et seq.
Defendants filed a motion to dismiss Norton's first amended
complaint. Ruling from the bench, the court granted in part
Defendants' motion to dismiss, specifically on the basis that
Norton had failed to adequately allege that her debt constituted a
consumer debt under the FDCPA and Rosenthal Act. Norton was granted
leave to amend in order to address the deficiencies identified on
the record, and she filed the SAC. Defendants then filed this
second motion to dismiss.
Defendants make three arguments that the SAC fails to state a claim
under Rule 12(b)(6).
First, they assert that Norton continues to fail to adequately
allege that the debt at issue is a consumer debt under the FDCPA
and Rosenthal Act.
Second, Defendants contend that all of Norton's claims are
untimely.
Third, Defendants argue that Norton lacks standing to pursue
injunctive relief on behalf of herself and the putative class
because she cannot show that it is reasonably likely that she will
be wronged by the same alleged unlawful conduct again.
Debts Under the FDCPA and Rosenthal Act
Because not all obligations to pay are considered debts under the
FDCPA, a threshold issue in a suit brought under the Act is whether
or not the dispute involves a debt within the meaning of the
statute. The FDCPA defines a debt as any obligation or alleged
obligation of a consumer to pay money arising out of a transaction
in which the money, property, insurance, or services which are the
subject of the transaction are primarily for personal, family, or
household purposes, whether or not such obligation has been reduced
to judgment.
Similarly, the Rosenthal Act defines a consumer debt as money,
property or their equivalent, due or owing or alleged to be due or
owing from a natural person by reason of a consumer credit
transaction, where a consumer credit transaction is defined as a
transaction between a natural person and another person in which
property, services or money is acquired on credit by that natural
person from such other person primarily for personal, family, or
household purposes.
In her prior complaint, Norton did not state any facts about the
nature of her debt. Norton now alleges that in late 2017 she called
H&Z and spoke with an unidentified person who told her that the
reason she had been sued was for a credit card. Norton further
alleges that Defendants listed an entity called Washington Mutual
Card Services as potentially having discoverable information that
Defendants may rely upon in connection with their claims and
defenses in this action.
Norton states that Defendants have refused to provide any further
information about the debt they sought to collect from Ms. Norton,
including which entity originally issued the credit card, and
whether the card was a Visa, Mastercard, or store brand card. She
avers that every credit card she has ever had was used primarily to
purchase items for personal, family or household use, such as
clothes, food, gasoline, entertainment and other personal items and
that she has never operated a business or held a business credit
card.
Accordingly, Norton alleges based on information and belief, that
the debt for which she was sued in the state court action] was
based on a credit card used primarily for personal, family or
household use, such as clothes, food, gasoline, entertainment and
other personal items.
It is clear from the SAC that Norton currently does not have
concrete information about the debt.
This is not surprising given the passage of time since it was
incurred. Although Norton's allegations do not nail down the
existence of a consumer debt, they create a plausible inference
that the debt was incurred for personal, family, or household
expenses, and therefore are sufficient to withstand a Rule 12
challenge.
Defendants attempt to paint Norton's allegations as evasive and
misleading by pointing out that she never unequivocally states that
the judgment at issue resulted from credit card debt that she in
fact accrued. They further claim that her statements about her
general credit card use are insufficient to plead that the
transactions underlying this particular judgment qualify as a debt
within the meaning of the FDCPA and the Rosenthal Act.
Finally, contrary to Defendants' argument, Norton's allegations
that describe her communications with H&Z are not offered to show
that H&Z treated the debt as a consumer debt. Instead, they are
factual support for the inference that her debt obligation arose
from a delinquent credit card. Defendants' authorities are, again,
readily distinguishable. In this case, Norton is not alleging that
the debt at issue is a consumer debt because H&Z treated it that
way. Rather, she contends that the information that she has about
the nature of the debt, some of which came from H&Z, supports a
plausible inference that the debt was incurred for personal use.
Defendants essentially argue that a plaintiff's allegations about
consumer debt must be unequivocal and ironclad in order to
withstand a Rule 12 challenge. This ignores well-established
pleading standards. Moreover, adopting such a position could
incentivize creditors to conceal the nature of the debts they are
attempting to collect in order to prevent debtors from discovering
sufficient factual information to adequately contest unfair debt
collection practices. Given that consumers may have more than one
delinquent debt and that many debts are sold and resold through
various collection agencies, it would be antithetical to the
purposes of the FDCPA and Rosenthal Act to prohibit debtors from
contesting unlawful debt collection practices if they are unable to
unequivocally identify the underlying debt after diligent
investigation.
Discovery ultimately may reveal that the underlying debt at issue
in this case is not a consumer debt, and Norton's claims may fail
on the merits. However, as a pleading matter, Norton's factual
allegations about the nature of her debt are sufficient to state a
facially plausible claim for relief.
Statute of Limitations for Plaintiff's FDCPA and Rosenthal Act
Claims
Defendants move to dismiss the FDCPA and Rosenthal Act claims based
on the one-year statute of limitations contained in both statutes.
Defendants argue that Norton's claims are time-barred because the
alleged wrongful conduct first occurred years before she filed this
action, and subsequent collection efforts by Defendants were a mere
continuation of enforcement efforts that do not revive her untimely
claims.
Norton counters that each writ of execution and memorandum of costs
filed by Defendants without complying with section 673 was a
discrete violation of the FDCPA and Rosenthal Act, and that
violations falling within the year prior to when she filed the
complaint are not time-barred. Norton further claims that the
violations occurring prior to the one-year cutoff are timely pled
under the discovery rule.
Acts Within the One-Year Limitation Period
Norton alleges that Arrow filed the collections action against her
on October 21, 2008. Default judgment was entered against Norton on
December 26, 2008. On February 24, 2012, H&Z substituted as Arrow's
new counsel. H&Z caused a writ of execution to issue from
Sacramento County Superior Court on May 17, 2012. Norton filed this
lawsuit on August 17, 2018. Both parties appear to agree that the
judgment collection actions that Defendants took prior to August
17, 2017 fall outside the one-year statute of limitations.
Therefore, the only actions within the limitations period are the
writ of execution issued on September 1, 2017, and the memorandum
of costs filed on the same date.
The court now analyzes whether Norton can state timely claims based
on the September 1, 2017 writ of execution and memorandum of costs.
Norton's contentions that the older claims are timely under the
discovery rule are addressed in a later section.
The September 1, 2017 Writ of Execution
In ordinary civil actions, after entry of a money judgment and upon
application, the law entitles a judgment creditor to issuance of a
writ of execution by the clerk of the court. Separate writs are
issued for each county where a levy is to be made.
Defendants cite numerous cases for the proposition that the
September 2017 writ of execution does not constitute a new FDCPA
violation that restarts the statute of limitations.
None of Defendants' cases are persuasive here. Many explicitly
refer to communications (as opposed to legal actions) from the
creditor about the debt. For example, in Martin, the only action
the creditor took within the one-year statute of limitations was to
contact a sheriff's office to reschedule an execution sale on one
of the plaintiff's properties.
Here, the writ of execution filed by Defendants is not a
communication about the debt. The purpose of a writ is not to relay
information, report the status or amount of the debt, or restate
the allegations in the underlying complaint. Instead, obtaining a
writ of execution is a legal action that requires a levying officer
to enforce a money judgment.
Accordingly, the line of cases regarding new communications about
old claims is not applicable here.
In other cases cited by Defendants, the alleged FDCPA violation was
the filing of the underlying collection action, and courts found
that subsequent litigation efforts in those cases were not
independent violations. By contrast, Norton does not allege that
the FDCPA violation was the filing of the complaint against her in
2008. Nor does she argue that any litigation efforts leading to
obtaining the judgment against her were unlawful. Rather, she
alleges that Defendants violated the FDCPA by attempting to enforce
the judgment without first complying with section 673.
Each writ of execution, including the writ issued in September
2017, lists Arrow as the judgment creditor even though LVNV
acquired Norton's debt from Arrow in 2012.
The failure of Defendants to properly record the assignment from
Arrow to LVNV is precisely the violation that Norton pursues in
this case. Each writ establishes an alleged violation, without
reference to or reliance on the underlying collection case.
Norton's argument also finds support in the fact that several
courts outside this circuit have held that filing an invalid
judgment lien is a discrete violation of the FDCPA. The reasoning
in these cases applies here because placing a lien on property is
similar to issuing a writ of execution for wage garnishment, since
both are post-judgment enforcement actions.
In sum, each of Defendants' attempts to collect on Norton's debt
through issuing writs of execution were distinct legal acts that
could serve as a basis for a FDCPA claim. Norton's claim relating
to the writ of execution filed in September 2017 is timely, and
Defendants' motion to dismiss that claim is denied.
The September 1, 2017 Memorandum of Costs
Norton argues that the memorandum of costs filed on September 1,
2017 was also a distinct violation of the FDCPA and within the
one-year statute of limitations. At the hearing, neither party was
able to explain the legal basis or effect of a memorandum of costs,
nor did the parties brief the issue. Given the parties' failure to
adequately address the issue, the court does not reach whether the
FDCPA claim based on the memorandum is a new communication about an
old claim or a subsequent filing made in the course of litigation
and therefore untimely, or whether it is a distinct legal action
with a separate statute of limitations.
Discovery Rule
Under the discovery rule, a limitations period begins to run when
the plaintiff knows or has reason to know of the injury which is
the basis of the action. The discovery rule permits a plaintiff to
demonstrate that the statute of limitations began running when the
plaintiff discovered the injury rather than when the injury
occurred.
Norton argues that the discovery rule applies to her claim to the
extent it relies on actions that took place prior to August 2017
because she had no reason to know that Defendants had failed to
file an acknowledgement of assignment under section 673, which is
the injury underlying her FDCPA claim. She contends that the
statute of limitations began running around November 2017, when she
contacted the attorneys at HERA and learned for the first time that
LVNV, not Arrow, was attempting to enforce the judgment against
her. Defendants respond that Norton was responsible for diligently
investigating her potential claim and her failure to do so does not
permit her the benefit of the discovery rule.
The federal formulation of the discovery rule states that a
plaintiff knows or reasonably should know of a claim when he or she
knows both the existence and the cause of his injury. Under this
standard, a plaintiff who did not actually know that his rights
were violated will be barred from bringing his claim after the
running of the statute of limitations, if he should have known in
the exercise of due diligence.
Norton's SAC alleges that her attorney at HERA wrote to H&Z in
December 2017 in response to the wage garnishment that Defendants
commenced in November 2017. The letter stated that the wage
garnishment appeared to be improper because Arrow had filed a
Notice of Cancellation with the California Secretary of State, and
no other party had established itself as the assignee of record.
Norton alleges that LVNV did not disclose to her that they had
acquired the judgment until 2018. She contends that the statute of
limitations for her older claims should not begin running until
November 2017, when she contacted the attorneys at HERA who were
aware that Arrow had filed the Notice of Cancellation. To the
extent that the allegations in her SAC are not sufficient to
support the application of the discovery rule, Norton requests
leave to amend to address this point.
The SAC does not contain allegations that establish when Norton
learned that Defendants were unlawfully enforcing the judgment in
Arrow's name or when she should have learned of that violation.
Although the SAC lays out the dates on which Defendants pursued
various collection efforts, such as securing writs of execution and
filing memoranda of costs, it does not allege whether Norton was
aware of those efforts nor does it describe what steps she took to
respond to those actions or investigate the basis for her claims.
Defendants' motion to dismiss Norton's older claims as untimely is
granted. Plaintiff are granted leave to amend their complaint to
add facts to support the application of the discovery rule to those
claims. As this is the third round of pleadings, Plaintiff must
plead her best case.
The court grants in part and denies in part Defendants' motion to
dismiss. Defendants' motion to dismiss Norton's FDCPA and Rosenthal
claims on the basis that she has not adequately alleged the
existence of a consumer debt is denied. Norton's FDCPA and
Rosenthal Act claims with respect to Defendants' actions taken
before August 17, 2017 are dismissed with leave to amend. The
motion is granted as to Norton's individual claim for injunctive
relief, but denied as to the class claim.
A full-text copy of the District Court's August 28, 2019 Order is
available at https://tinyurl.com/y2lf6n7r from Leagle.com.
Sonya Norton, Plaintiff, represented by Gina C. Di Giusto --
gdigiusto@heraca.org -- HERA, Natalie Ann Lyons --
nlyons@heraca.org -- Housing and Economic Rights Advocates &
William Eric Kennedy -- wkennedy@kennedyconsumerlaw.com -- Law
Offices of William E. Kennedy.
LVNV Funding, LLC & Law Office of Harris & Zide, Defendants,
represented by Tomio Buck Narita -- tnarita@snllp.com -- Simmonds &
Narita LLP, Margaret T. Cardasis -- mcardasis@snllp.com -- Simmonds
and Narita LLP & Robert Travis Campbell -- tcampbell@snllp.com --
Simmonds & Narita LLP.
LYFT: Faces Class Actions Over ADA Violation
--------------------------------------------
Liz Kreutz, writing for KGO, reports that a San Francisco woman
with a disability says Lyft drivers have repeatedly canceled her
rides when they pull up and see her service dog.
Although this is against Lyft's policies, she says the rideshare
company is not doing enough to stop it.
Talia Lubin is a law student at UC Hastings College of the Law. She
has Type-1 diabetes and for more than five years has had a Diabetic
Medical Alert Service Dog named Astra - who on more than one
occasion has saved her life.
"It's hard to describe the closeness between a service dog and
their handler," Talia told ABC7 News. "We spend every second of
every day of our lives together."
She explained that during a recent visit to San Francisco to attend
an Admitted Students reception, a Lyft driver canceled on her when
the driver pulled up and saw Astra, who was wearing a dog vest that
said "Service Dog" and "Medical Alert."
"Whenever this sort of thing happens it's so painful," Lubin said.
"And It was scary, because it's like, am I just not going to get
home? What am I supposed to do?"
Lubin said she reported the incident to Lyft's Trust and Safety
team. They temporarily paused the driver's account and reminded him
of his legal obligations to serve passengers with disabilities and
their medical alert service animals. Lyft also offered Lubin a
$5.00 credit.
On August 4th, she said she had two more similar experiences.
She said her mother was visiting her at law school and called the
Lyft. The driver told her she could not bring Astra in the car.
She explained to him that Astra sits at her feet and that she has a
small travel tarp underneath to prevent any hair from being left in
the car. She also explained that it is illegal for the driver to
refuse service to a disabled person because they have a service
dog.
Eventually, she said, she wore him down and they got in the car.
Still, she said he continued to harass her throughout the drive
about it.
Later that day, she called another Lyft. That driver saw her and
Astra and canceled the ride.
Lubin said she reported both instances to Lyft's Trust and Safety
team, and received similar responses as the first incident.
ABC7 News reached out to Lyft for comment. Lyft sent us the
following statement:
"What the rider described is unacceptable.
Community safety and inclusivity are core to our mission, and we
have a strict Service Animal policy that requires all drivers to
accommodate riders traveling with service animals.
Failure to abide by that policy can result in being removed from
the Lyft community."
In addition, the company has an entire page on their website about
its policy of allowing service animals.
Lubin acknowledged that Lyft is following federal law, but believes
not enough is being done to train drivers of this policy and to
enforce it.
"They think having that policy is enough. But it's not enough if
you don't ensure that the people that need to be paying attention
know about it," she said. "So, that's what I'm hoping, hoping to
change."
Lyft, along with Uber, is currently the subject of a class-action
lawsuit calling for sweeping change among the ride-share companies:
Equal access for those with disabilities.
The lawsuits, filed by the nonprofit Disability Rights Advocates of
Berkeley, claim Uber and Lyft don't offer the same on-demand rides
for people with disabilities as they do for everyone else in the
Bay Area, which is in violation of the ADA (Americans With
Disabilities Act). [GN]
M-I LLC: $556K Settlement in Syed FCRA Suit Has Final Approval
--------------------------------------------------------------
In the case, SARMAD SYED, an individual on behalf of himself and
all others similarly situated, Plaintiffs, v. M-I LLC, a Delaware
Limited Liability Company, et al., Defendants, Case No.
1:14-cv-00742 WBS BAM (E.D. Cal.), Judge William B. Shubb of the
U.S. District Court for the Eastern District of California granted
(i) the Plaintiffs' Motion for Final Approval of the Class and
Class Action Settlement, and (ii) the Plaintiff's Motion for Award
of Attorneys' Fees and Costs.
Syed brought the putative class action lawsuit against M-I and
other parties alleging M-I violated federal credit reporting laws
while conducting pre-employment background checks. The Plaintiff
applied for a job with M-I on July 20, 2011. The Plaintiff alleges
that M-I violated Section 1681(b)(2) of the Fair Credit Reporting
Act by procuring or causing to be procured a consumer report for
employment purposes via a disclosure form that contained not only
language authorizing the procurement of a consumer report, but also
an indemnity clause and release. The Plaintiff alleges that as a
result, the class members could recover statutory damages between
$100 and $1,000 as well as punitive damages under 15 U.S.C. Section
1681n(a).
In October 2018, the parties reached a settlement. Their
Settlement Agreement provides for a gross settlement amount of
$556,000. It specifies that the Defendants agree not to oppose a
motion by the class counsel for attorney's fees (up to $300,000)
and attorney's costs (up to $10,000) from this gross settlement
amount. Notably, the Settlement Agreement provides that any
portion of the requested attorneys' fees or costs not awarded will
revert to the Defendant. It also provides for the deduction of
settlement administration costs from the gross settlement amount
and for a class representative service award of up to $5,000.
In its order granting preliminary approval of a class and class
settlement, the Court provisionally certified the following class:
All persons residing in the United States (including all
territories and other political subdivisions of the United States)
as to whom M-I L.L.C. may have procured or caused to be procured a
consumer report for employment purposes during the period from May
19, 2009 through Nov. 1, 2018, who M-I L.L.C. hired, and who have
not signed a severance agreement and release or equivalent
agreement releasing the claims asserted in the Action.
The Court appointed Sarmad Syed as class representative, the Peter
R. Dion-Kindem and the Blanchard Law Group as the class counsel,
and Simpluris, Inc. as the settlement administrator. It also
approved the notice of settlement and final approval hearing and
opt-out form.
The Court set the final fairness hearing for Aug. 5, 2019. It
directed the class counsel to file with the Court, within 28 days
of the fairness hearing, a petition for an award of attorney's fees
and costs; all papers in support of the settlement, incentive
award, fees, and costs; and a declaration from the settlement
administrator setting forth the services rendered, proof of
mailing, and a list of all class members who have commented upon or
objected to the settlement.
The Plaintiff now moves for final approval of the settlement
pursuant to Federal Rule of Civil Procedure 23(e). The Plaintiff's
also move for attorneys' fees and costs.
After conducting the final fairness hearing and carefully
considering the terms of the settlement, the Court now addresses
whether the class should receive final certification; whether the
proposed settlement is fair, reasonable, and adequate; and whether
the class counsel's request for attorneys' fees and costs, as well
as an enhancement award for the representative Plaintiff, should be
granted.
Judge Shubb granted (i) the Plaintiffs' Motion for Final Approval
of the Class and Class Action Settlement, and (ii) the Plaintiff's
Motion for Award of Attorneys' Fees and Costs.
Solely for the purpose of the settlement, and pursuant to Federal
Rule of Civil Procedure 23, he certified the following class: All
persons residing in the United States (including all territories
and other political subdivisions of the United States) as to whom
M-I L.L.C. may have procured or caused to be procured a consumer
report for employment purposes during the period from May 19, 2009
through Nov. 1, 2018, who M-I L.L.C. hired, and who have not signed
a severance agreement and release or equivalent agreement releasing
the claims asserted in the Action.
He appointed (i) named Plaintiff Sarmad Syed as the representative
of the class, and (ii) Peter R. Dion-Kindem and Blanchard Law Group
as the counsel to the settlement class.
The Settlement Agreement's plan for class notice is approved and
adopted. The notice to the class complies with Rule 23 and is
approved and adopted.
The Plaintiff's counsel is entitled to fees in the amount of
$299,809 and costs in the amount of $4307.79. The named Plaintiff
is entitled to an incentive payment of $5,000.
The Judge dismissed the action with prejudice. The Clerk is
instructed to enter judgment accordingly.
A full-text copy of the Court's Aug. 6, 2019 Memorandum and Order
is available at https://is.gd/yqoOGU from Leagle.com.
Sarmad Syed, an individual, on behalf of himself and all others
similarly situated, Plaintiff, represented by Lonnie C. Blanchard,
III -- lonnieblanchard@gmail.com -- The Blanchard Law Group, APC &
Peter R. Dion-Kindem -- Peter@Dion-KindemLaw.com -- Peter R.
Dion-Kindem, P.C.
PreCheck, Inc., a Texas Corporation, Defendant, represented by
Raymond Joseph Muro -- rmuro@nelsongriffin.com -- Nelson Griffin,
LLP & Thomas Joseph Griffin -- tgriffin@nelsongriffin.com --
Nelson
Griffin, LLP.
MARKETSOURCE INC: Court OKs $83K Settlement in Delgado Suit
-----------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division, issued an Order granting Plaintiff's
Motion for Approval of the Second Amended Settlement in the Case
Captioned RAY DELGADO, Plaintiff, v. MARKETSOURCE, INC., Defendant.
Case No. 17-CV-07370-LHK. (N.D. Cal.).
Plaintiff's complaint alleged claims for (1) failure to provide
accurate itemized wage statements in violation of California Labor
Code Section 226(a) (2) failure to pay all wages owed immediately
upon termination in violation of California Labor Code Sections
201, 203 and (3) civil penalties pursuant to California's Private
Attorney General's Act (PAGA).
Settlement Approval
An employee bringing a PAGA action does so as the proxy or agent of
the state's labor law enforcement agencies, who are the real
parties in interest. Thus, an action brought under the PAGA is a
type of qui tam action. Because a PAGA action is brought as a proxy
for law enforcement agencies, there is no requirement that the
Court certify a PAGA claim for representative treatment like in
Rule 23. However, because a settlement of PAGA claims compromises a
claim that could otherwise be brought by the state, the PAGA
provides that courts shall review and approve any settlement of any
civil action filed pursuant to PAGA.
A party seeking approval of a PAGA settlement must simultaneously
submit the proposed settlement to the LWDA to allow the LWDA to
comment on the settlement if the LWDA so desires.
Given the lack of an express standard, several courts, including
this Court, have applied several of the factors in Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998), to evaluate a
PAGA settlement.
The Hanlon factors, which are used to evaluate class action
settlements, include (1) the strength of the plaintiffs' case (2)
the risk, expense, complexity, and likely duration of further
litigation (3) the risk of maintaining class action status
throughout the trial (4) the amount offered in settlement (5) the
extent of discovery completed (6) the expertise and views of
counsel (7) the presence of government participation; and (8) the
reaction of class members to the proposed settlement.
Unjust, Arbitrary and Oppressive, or Confiscatory as to Defendant
This factor favors approval of the second amended settlement. There
is no indication that the second amended settlement would be
unjust, arbitrary and oppressive, or confiscatory.To the contrary,
in the mediation process and the resulting second amended
settlement, the parties recognized the potential burden of
additional litigation. Defendant settled rather than continue
litigating what Defendant views as an exceedingly small matter.
Strength of Plaintiff's Case
This factor favors approval. Courts have noted that legal
uncertainty favors approval of a settlement. The Court denied
Plaintiff's motion for class certification and Defendant's motion
to strike the PAGA claim, but the merits of Plaintiff's final wage
allegations have not been tested. Moreover, the parties continue to
dispute the circumstances of Plaintiff's termination.
Risk, Expense, Complexity, and Likely Duration of Further
Litigation
This factor favors approval. Although the parties have engaged in
motion practice to date, the parties settled before more expansive
discovery occurred and, specifically, before Defendant was to
provide PAGA-related discovery related to 25 employees terminated
during the PAGA period. Even if Plaintiff were to prove his PAGA
claim for all employees, there is a risk that the Court could
reduce PAGA penalties under California Labor Code Section
2699(e)(2). Plaintiff could also fail to recover any penalties for
eligible employees or the LWDA. For both parties, because the
maximum value of the PAGA claim is $96,300, as explained in more
detail below, continued litigation presents an expense not
commensurate with the potential recovery.
Thus, the second amended settlement provides a timely, certain, and
meaningful recovery.
Amount of Second Amended Settlement
This factor favors approval. In a declaration, Plaintiff's attorney
explains that the total valuation of Plaintiff's PAGA claim is
$96,300. There are a maximum of 963 employees eligible for PAGA
penalties. Under PAGA, employees are eligible to recover $100 for
an initial violation and $200 for a subsequent violation. However,
because the alleged violation in this case relates to payment of
final wages, each employee was likely terminated only once and is
entitled to penalties for only one violation. Therefore, the
maximum recovery per employee is $100, for a total of $96,300.
Pursuant to the second amended settlement, Defendant will pay a
total of $83,075, of which at least $45,252.98 are allocated to
PAGA penalties. Thus, the second amended settlement provides for
approximately $46.99 in PAGA penalties per employee, or a recovery
equivalent to almost 47% of the PAGA claim's total valuation.
The Court also approves up to $4,000 for settlement administration
costs. The second amended settlement provides that if settlement
administration costs fall below $4,000, any residual funds will be
paid toward PAGA penalties. Thus, the amount of PAGA penalties
could be even higher.
Courts have raised concerns about settlements of less than 1% of
the total value of a PAGA claim.
By contrast, the second amended settlement provides for penalties
of almost 47% of Plaintiff's total valuation for the PAGA claim,
and that amount could be even higher if settlement administration
costs fall below $4,000. Moreover, although courts have raised
concerns about PAGA settlements where the LWDA filed objections,
Plaintiff filed his proposed settlement with the LWDA, and the LWDA
has not filed any response.
Therefore, the amount of the second amended settlement weighs in
favor of approval.
Extent of Discovery Completed and Stage of the Proceedings
This factor weighs in favor of approval. The parties have completed
significant discovery and litigated both a motion for class
certification and a motion to strike the PAGA claim. Thus, both
sides had a well-developed sense of the risks and benefits of
continued litigation.
Experience and Views of Counsel
This factor favors approval. The parties here are represented by
competent and experienced counsel who favor settlement. Plaintiff's
primary attorney has litigated employment cases for 10 years and
favors settlement because there are legitimate open questions as to
several issues in the litigation. Defendant favors settlement
because the case is an exceedingly small matter, in Defendant's
view.
Therefore, the views of counsel favor settlement.
Thus, each of the six relevant factors discussed above favors
approval. The settlement of the PAGA claim in the instant case for
a total of $83,075 was reached only after multiple rounds of motion
practice, substantial discovery, and negotiations involving counsel
with significant experience in employment cases. Therefore, the
Court GRANTS Plaintiff's motion for approval of the second amended
settlement.
The Court GRANTS Plaintiff's motion for approval of the second
amended settlement.
A full-text copy of the District Court's August 28, 2019 Order is
available at https://tinyurl.com/y38y4ye6 from Leagle.com.
Ray Delgado, Plaintiff, represented by Kristen Michelle Agnew --
kagnew@diversitylaw.com -- Diversity Law Group, APC, Larry W. Lee
-- lwlee@diversitylaw.com -- Diversity Law Group, P.C., Nicholas
Rosenthal -- nrosenthal@diversitylaw.com -- Diversity Law Group &
William Lucas Marder -- bill@polarislawgroup.com -- Polaris Law
Group, LLP.
MarketSource, Inc., a Maryland Corporation doing business as
Maryland MarketSource Inc., Defendant, represented by Kevin Dennis
Sullivan -- ksullivan@ebglaw.com -- Epstein Becker & Green, P.C. &
Michael Stuart Kun -- mkun@ebglaw.com -- Epstein Becker & Green,
P.C.
MARTHA STEWART: Settlement in Raden Suit Has Final Approval
-----------------------------------------------------------
In the case, ALICE RADEN and BOBBIE MOORE, individually and on
behalf of the settlement classes, Plaintiffs, v. MARTHA STEWART
LIVING OMNIMEDIA, INC., a Delaware corporation, and MEREDITH
CORPORATION, an Iowa corporation. Defendants, Case No.:
4:16-cv-12808 (E.D. Mich.), Judge Linda V. Parker of the U.S.
District Court for the Eastern District of Michigan granted the
Plaintiffs' Motion for Attorneys' Fees, Expenses, and Incentive
Awards, and the Plaintiffs' Motion for Final Approval of Class
Action Settlement.
Having duly considered the arguments and authorities presented by
the Parties and their counsel at the Final Approval Hearing held on
July 31, 2019, and the record in the Action, and good cause
appearing, Judge Parker confirmed certification, for purposes of
settlement only, of the Direct Purchaser Settlement Class and
Indirect Purchaser Settlement Class pursuant to Federal Rule of
Civil Procedure 23(b)(3).
The Settlement Classes are defined as follows:
a. Direct Purchaser Settlement Class: All persons with
Michigan Street addresses who were subscribers to Martha Stewart
Living magazine or Martha Stewart Weddings magazine between July
31, 2010 and July 31, 2016 and who purchased their subscriptions
directly from Martha Stewart or Meredith.
b. Indirect Purchaser Settlement Class: All persons with
Michigan Street addresses who were subscribers to Martha Stewart
Living magazine or Martha Stewart Weddings magazine between July
31, 2010 and July 31, 2016 and who purchased their subscriptions
from a third party.
No Direct Purchaser Settlement Class Member or Indirect Purchaser
Settlement Class Member has objected to any of the terms of the
Settlement Agreement and only eight individuals -- Jacqueline
Conry, Debora Hoeve, Amela Nukic, Aditi Ram Prasad, Giovanna
Roncone, Susan Savage, Theresa Stone, and Joann Van Every --
submitted timely requests for exclusion.
The Judge gave final approval to the Settlement Agreement, and
finds that the Settlement Agreement is fair, reasonable, adequate,
and in the best interests of the Direct Purchaser Settlement Class
Members and Indirect Purchaser Settlement Class Members.
Accordingly, the Settlement is finally approved in all respects,
and the Parties and their counsel are directed to implement and
consummate the Settlement Agreement according to its terms and
provisions. The Settlement Agreement is incorporated into the
Final Judgment in full and will have the full force of an Order of
the Court.
She dismissed the Action (including all the individual claims and
the class claims presented thereby) on the merits and with
prejudice, without fees or costs to any Party except as provided
for in the Order.
The Judge has also considered the Plaintiffs' Motion and supporting
declarations for attorneys' fees to the Class Counsel, and finds
that the payment of $337,750 is reasonable in light of the
multi-factor test used to evaluate fee awards in the Sixth Circuit.
This award includes the Class Counsel's unreimbursed litigation
expenses.
She also considered the Plaintiffs' Motion and supporting
declarations for incentive awards to the Class Representatives,
Alice Raden and Bobbie Moore. She finds that the payment of an
incentive award in the amount of $5,000 to Ms. Raden and an
incentive award in the amount of $5,000 to Ms. Moore, to compensate
them for their efforts and commitment on behalf of the Settlement
Classes, is fair, reasonable, and justified under the circumstances
of this case.
All he payments made to Direct Purchaser Settlement Class Members
pursuant to the Settlement Agreement that are not cashed within 90
days of issuance will revert to the Michigan State Bar Foundation's
Access to Justice Fund, which the Judge approved as an appropriate
cy pres recipient.
Without affecting the finality of the Final Judgment for purposes
of appeal, the Court will retain jurisdiction over all matters
relating to administration, consummation, enforcement, and
interpretation of the Settlement Agreement and the Final Judgment,
and for any other necessary purpose.
The Judge directed entry of the Final Judgment pursuant to Federal
Rule of Civil Procedure 58 based upon the Court's finding that
there is no just reason for delay of enforcement or appeal of the
Final Judgment.
A full-text copy of the Court's Aug. 2, 2019 Final Judgment and
Order is available at https://is.gd/9EgEGO from Leagle.com.
Alice Raden & Bobbie Moore, Plaintiffs, represented by Benjamin
Scott Thomassen -- bthomassen@edelson.com -- Edelson PC,
Eve-Lynn Rapp -- erapp@edelson.com -- Edelson PC, Henry M.
Scharg & Ari J. Scharg -- ascharg@edelson.com -- Edelson P.C.
Bobbie Moore, Plaintiff, represented by Benjamin Scott Thomassen,
Edelson PC, Eve-Lynn Rapp, Edelson PC, Henry M. Scharg & Ari J.
Scharg, Edelson P.C.
Martha Stewart Living Omnimedia, Inc., Defendant, represented by
Andrew M. Harris -- andrew.harris@kitch.com -- Kitch, Drutchas,
Wagner, Valitutti & Sherbrook.
Meredith Corporation, Defendant, represented by Jacob A. Sommer -
- jake@zwillgen.com -- Zwillgen, PLLC, Lara F. Phillip --
lara.phillip@honigman.com -- Honigman, Miller & Nury R. Siekkinen
-- nury@zwillgen.com. -- ZwillGen PLLC.
MDL 2804: 43 Actions in Opiate Suit Moved to N.D. Ohio
------------------------------------------------------
In the case, IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION, MDL
No. 2804 (JPML), Judge Sarah S. Vance of the U.S. Judicial Panel on
Multidistrict Litigation transferred the actions listed on Schedule
A to the Northern District of Ohio and, with the consent of that
court, assigned to the Hon. Dan A. Polster for inclusion in the
coordinated or consolidated pretrial proceedings.
The Plaintiffs in 43 actions move under Panel Rule 7.1 to vacate
the orders conditionally transferring their respective actions
listed on Schedule A to MDL No. 2804. Central District of
California Plaintiff United Healthcare Services, Inc., also
requests establishment of a separate MDL consisting of claims
against Insys Therapeutics, Inc., in the District of Arizona.
Various Defendants oppose the motions.
After considering the arguments of counsel, Judge Vance find these
actions involve common questions of fact with the actions
previously transferred to MDL No. 2804, and that transfer under 28
U.S.C. Section 1407 will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of the
litigation. Moreover, transfer is warranted for the reasons set
forth in our order directing centralization. In that order, the
Court held that the Northern District of Ohio was an appropriate
Section 1407 forum for actions sharing factual questions regarding
the allegedly improper marketing and distribution of various
prescription opiate medications into states, cities, and towns
across the country.
Despite some variances among the actions before the Court, the
Judge finds that they share a factual core with the MDL actions:
the manufacturer and distributor defendants' alleged knowledge of
and conduct regarding the diversion of these prescription opiates,
as well as the manufacturers' allegedly improper marketing of such
drugs. The actions therefore fall within the MDL's ambit.
The parties opposing transfer in 42 actions argue principally that
federal jurisdiction is lacking over their cases. But opposition
to transfer based on a jurisdictional challenge is insufficient to
warrant vacating conditional transfer orders covering otherwise
factually related cases. Several parties also argue that including
their actions in the large MDL will cause them inconvenience.
Given the undisputed factual overlap with the MDL proceedings, the
Judge holds that transfer is justified in order to facilitate the
efficient conduct of the litigation as a whole.
Central District of California Plaintiff United HealthCare, which
brings claims against Insys for its role in United's purported
wrongful coverage of Subsys prescriptions, opposes transfer on the
grounds that its action, United Healthcare, is unique. United also
requests the creation of an Insys-only MDL.
The Judge denies the motion to vacate and the request to create a
new MDL. Insys initiated Chapter 11 proceedings in early June
2019. Creating a new MDL is inadvisable at this time -- no
litigation is ongoing at the moment against Insys, pursuant to the
automatic stay, and Insys has yet to weigh in on United's proposal.
Further, the United Healthcare action shares significant factual
overlap with many MDL actions.
The Court recently transferred a third-party payor putative class
action (of which United presumably would be a member), the crux of
which was that Insys perpetrated a scheme to defraud third-party
payors of prescription drugs by, among other things, impersonating
physician office staff and falsifying patient records to induce
third-party payors to pay for prescriptions of Subsys. Moreover,
Insys and its role in the proliferation of Subsys is at issue in
hundreds of actions brought by other MDL plaintiffs.
Based on the foregoing, Judge Vance transferred the actions listed
on Schedule A to the Northern District of Ohio and, with the
consent of that court, assigned to the Judge Polster for inclusion
in the coordinated or consolidated pretrial proceedings.
A full-text copy of the Court's Aug. 2, 2019 Transfer Order is
available at https://is.gd/cZLTu0 from Leagle.com.
MIDLAND CREDIT: Court Denies Count I Dismissal in Pierre Suit
-------------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division, issued a Memorandum Opinion and Order
denying Defendant's Motion to Dismiss in the case captioned
RENETRICE R. PIERRE, Individually and on Behalf of others Similarly
Situated, Plaintiff, v. MIDLAND CREDIT MANAGEMENT, INC., a Kansas
Corporation, Defendant. Case No. 16 C 2895. (N.D. Ill.).
Plaintiff Renetrice Pierre, individually and on behalf of a class,
alleges that Defendant sent debt collection letters that violated
the Fair Debt Collection Practices Act (FDCPA). Pierre raised two
FDCPA claims: (1) a class claim that Defendant falsely represented
the status of the debt, used deceptive means to attempt to collect
the debt, and used unfair or unconscionable means to attempt to
collect the debt and (2) an individual claim that Defendant falsely
represented the amount of Pierre's debt.
Defendant now moves to dismiss Count I under Federal Rule of Civil
Procedure 12(b)(1) for lack of standing.
Here, Defendant raises a factual challenge, and contends that there
is in fact no subject matter jurisdiction, even if the pleadings
are formally sufficient. In reviewing a factual challenge, the
court may look beyond the pleadings and view any evidence submitted
to determine if subject matter jurisdiction exists. As the party
invoking federal jurisdiction, the plaintiff bears the burden of
establishing the elements of Article III standing.
Standing
Defendant argues that Count I of this case should be dismissed
under Rule 12(b)(1) because Pierre and the class lack standing to
pursue their claims.
To establish Article III standing, a plaintiff must show: (1) she
has suffered an injury in fact that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical (2) the injury is fairly traceable to the challenged
action of the defendant and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.
Defendant contends that Pierre failed to establish that she
suffered an injury in fact. Defendant cites to two primary sources
in support of that argument: a recent Seventh Circuit case,
Casillas v. Madison Ave. Assocs., Inc., 926 F.3d 329 (7th Cir.
2019), and Pierre's deposition testimony.
Casillas and Recent Caselaw
In Casillas, a debt collector's letter allegedly violated the FDCPA
by omitting the required notice that a consumer's dispute of a debt
must be in writing. The Seventh Circuit found that the plaintiff
lacked standing because she alleged only a bare procedural
violation. Important to the Court's reasoning in Casillas was the
fact that the plaintiff:
Did not allege that defendant's actions harmed or posed any real
risk of harm to her interest under the Act. She did not allege
that she ever even considered contacting defendant. She complained
only that her notice was missing some information that she did not
suggest that she would ever have used.
Speaking more broadly to standing in FDCPA and other statutory
right cases, Casillas emphasized that the fact that Congress has
authorized a plaintiff to sue a debt collector who fails to comply
with any requirement of the FDCPA does not mean that a plaintiff
has standing. Article III requires a concrete injury even in the
context of a statutory violation. Thus, an FDCPA plaintiff cannot
demonstrate standing simply by pointing to a procedural violation.
She must show that the violation harmed or presented an appreciable
risk of harm to the underlying interest that Congress sought to
protect.
However, the case at hand is distinguishable from Casillas. First
and foremost, this case concerns not an incomplete letter, but a
deceptive letter. In its summary judgment opinion, this Court found
that Midland Credit's letter was misleading as a matter of law, in
violation of 15 U.S.C. Section 1692e.
Second, Casillas concerned a statutory disclosure requirement.
Accordingly, the Seventh Circuit emphasized the distinction between
an informational injury that relates to substantive information
versus notice of statutory rights. The FDCPA violation at issue
here was not a mere failure to inform the recipients of the letter
of required statutory disclosures. Rather, it was substantive, as
it deceptively sought to entice action by the recipients.
Third, as the Untershine opinion observed, Casillas did not
overrule any prior Seventh Circuit decision, and the court took
pains to distinguish cases that appeared inconsistent.
Pierre's Deposition
Defendant contends that Pierre disclaimed any injury in fact under
Spokeo and Casillas because she testified that she understood she
was not going to be sued by defendant, knew her debt was an old
debt and that she never had any intention of paying it, understood
everything' in the letter, knew she `didn't owe the money and that
the letter did not cause her to do anything different than she
otherwise would have done.
Read in context, Pierre's comment that she understood everything
clearly relates back to counsel's question about whether she read
the letter and followed the language therein. It is not a
concession by Pierre that she was not misled or confused by the
letter quite the opposite. Pierre states that she understood the
letter to contain a due date for payment, a time by which Midland
Credit was demanding payment. Pierre is quite unlike the plaintiff
in Casillas who had no intention of using the information she was
not given. Thus, Defendant's argument regarding Pierre's deposition
is unavailing.
Plaintiffs have demonstrated an injury in fact beyond a mere
procedural violation. Protecting consumers from misinformation and
misleading representations is one of the concrete interests that
Congress sought to protect via the FDCPA. And the violation at
issue in Count I certainly presented an appreciable risk of harm to
the underlying interest that Congress sought to protect. Because
Plaintiffs were misinformed and misled about the status of their
debt as a matter of law, as opposed to merely uninformed of
procedural rights they had no intention of exercising, as was the
case in Casillas, the Court finds that Plaintiffs have suffered an
injury in fact. Accordingly, the Court finds that Plaintiffs have
standing, and Defendant's motion to dismiss is denied.
Defendant's Motion to Dismiss is denied.
A full-text copy of the District Court's August 28, 2019 Memorandum
Opinion and Order is available at https://tinyurl.com/y5lbyaf6 from
Leagle.com.
Renetrice R. Pierre, individually and on behalf of others similarly
situated, Plaintiff, represented by Karl G. Leinberger, Markoff
Leinberger LLC & Paul F. Markoff, Markoff Leinberger LLC, 134 N.
LaSalle St., Ste. 1050., Chicago, IL 60602
Nicholas Navarroli & Jonathan Huser, Plaintiffs, represented by
Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin LLC &
Cassandra P. Miller, Edelman, Combs, Latturner & Goodwin LLC, 20 S.
Clark Street, Suite 1500, Chicago, IL 60603
George Hauptman, Plaintiff, represented by James C. Vlahakis,
Sulaiman Law Group, Ltd., 2500 South Highland Ave, Suite 200,
Lombard, IL 60148
Midland Credit Management, Inc., a Kansas corporation, Defendant,
represented by David M. Schultz -- dschultz@hinshawlaw.com --
Hinshaw & Culbertson LLP & Todd Philip Stelter --
tstelter@hinshawlaw.com -- Hinshaw & Culbertson LLP.
MINNESOTA: Court Denies Order Amendment Bid
-------------------------------------------
The United States District Court for the District of Minnesota
issued a Memorandum Opinion and Order denying Defendants' Motion to
Alter or Amend the Court's June 17, 2019 Order in the case
captioned James and Lorie Jensen, as parents, guardians, and next
friends of Bradley J. Jensen; James Brinker and Darren Allen, as
parents, guardians, and next friends of Thomas M. Allbrink;
Elizabeth Jacobs, as parent, guardian, and next friend of Jason R.
Jacobs; and others similarly situated, Plaintiffs, v. Minnesota
Department of Human Services, an agency of the State of Minnesota;
Director, Minnesota Extended Treatment Options, a program of the
Minnesota Department of Human Services, an agency of the State of
Minnesota; Clinical Director, the Minnesota Extended Treatment
Options, a program of the Minnesota Department of Human Services,
an agency of the State of Minnesota; Douglas Bratvold, individually
and as Director of the Minnesota Extended Treatment Options, a
program of the Minnesota Department of Human Services, an agency of
the State of Minnesota; Scott TenNapel, individually and as
Clinical Director of the Minnesota Extended Treatment Options, a
program of the Minnesota Department of Human Services, an agency of
the State of Minnesota; and the State of Minnesota, Defendants.
Civil No. 09-1775 (DWF/BRT). (D. Minn.).
The Court filed the Order on June 17, 2019. The June 2019 Order
readdressed the Court's concerns and detailed specific actions
necessary to alleviate those concerns.
The June 2019 Order also extended the Court's jurisdiction to
December 2019: (1) external verification of compliance; (2)
documentation of use of data to inform policy decisions, and
documentation of any such policy decisions, specifically with
respect to: (a) wait times for admission to MLB housing; (b) wait
times for movement to community placements after placement criteria
have been met and (c) under EC 88, the needs assessment(s)
regarding the number of treatment homes (3) continued use of
restraint and seclusion, and documentation supporting compliance
with EC 104 (4) the use of person-centered planning and (5) the
electronic data management system to track all information relevant
to abuse/neglect investigations.
Defendants now move to amend or alter the June 2019 Order pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure with respect
to the Court's extension of its jurisdiction.
Rule 59(e) motions serve a limited function of correcting `manifest
errors of law or fact or to present newly discovered evidence. Such
motions cannot be used to introduce new evidence, tender new legal
theories, or raise arguments which could have been offered or
raised prior to entry of judgment.
Defendants argue that the Court manifestly erred when the Court
extended its jurisdiction because the Court did not give Defendants
prior notice that it contemplated an extension, and the Court did
not grant Defendants an opportunity to be heard regarding the
Court's concerns underlying the extension.
In support of this argument, Defendants contend that: (1) the Court
did not indicate in its written orders prior to the April 16 status
conference that it contemplated extending its jurisdiction (2) the
Court did not specifically state during the Status Conference that
it contemplated extending its jurisdiction and (3) the Court did
not identify noncompliance with the Settlement Agreement as a basis
for the extension.
Defendants further contend if they had received notice that the
Court contemplated extending its jurisdiction, they would have been
able to address the Court's concerns without having to appoint an
outside expert or participating in an additional meet and confer.
Accordingly, Defendants ask that the Court vacate its June 2019
Order and terminate its jurisdiction over this matter.
Plaintiffs argue that there is no basis under Rule 59 to amend or
alter the June 2019 Order, and that Defendants' simply want the
Court to reconsider its decision extending jurisdiction. They argue
that pursuant to the Settlement Agreement, and as affirmed by the
Eighth Circuit, the Court may extend its jurisdiction as it deems
just and equitable. Plaintiffs therefore contend that Defendants'
motion is an improperly filed request for reconsideration on an
issue already litigated and decided.
While Defendants now contend that they did not know or understand
that the Court contemplated extending its jurisdiction, the record
reflects that Defendants argued against that very thing during the
Status Conference. Moreover, the Court has been clear that it will
continue its jurisdiction over this matter until it determines that
its jurisdiction may come to a just and equitable end.
It appears to the Court that Defendants' Motion is an attempt to
reargue their position that they are in full compliance with the
Agreement and that anything else they could do is beyond the scope
of the Agreement. The Court has already considered these arguments
and rejected them. As clearly set forth in its June 2019 Order, the
Court requires additional information to properly conclude that its
jurisdiction may come to a just and equitable end; accordingly, the
Court has extended its jurisdiction pending verification. The
Court's requirement that Defendants submit additional information
is an opportunity for Defendants to show the Court that they have
satisfied their obligations under the Agreement. Until the Court
has sufficient information to draw such a conclusion, its
jurisdiction simply cannot come to a just and equitable end.
As soon as the Court receives sufficient evidence that Defendants
are in compliance with the Agreement, and that its jurisdiction may
come to a just and equitable end, the Court will end its
jurisdiction. While Defendants may not like the Court's decision to
extend its jurisdiction, a manifest error of law is created by
disregard, misapplication, or failure to recognize controlling
precedent not disappointment by an unhappy party. In lieu of
further delay, the Court encourages Defendants to take the steps
necessary to verify its compliance with the Agreement, or to
satisfy any unmet requirements.
The Court finds that Defendants have identified no extraordinary
circumstances that warrant the relief requested. Specifically,
Defendants offer no newly discovered evidence or law that merit
reversal of its June 2019 Order. The Court concludes that
Defendants have failed to establish any manifest error of law or
fact requiring amendment of its June 2019 Order. Accordingly, the
Court respectfully denies Defendants' Motion.
Accordingly, the Defendants' Motion to Alter or Amend the Court's
June 17, 2019 Order is denied.
A full-text copy of the District Court's August 28, 2019 Memorandum
Opinion and Order is available at https://tinyurl.com/y6xo6hyf
from Leagle.com.
James Jensen, as parents, guardians and next friends of Bradley J.
Jensen and others similarly situated, Lorie Jensen, as parents,
guardians and next friends of Bradley J. Jensen and others
similarly situated, James Brinker, as parents, guardians and next
friends of Thomas M. Allbrink and others similarly situated, Darren
Allen, as parents, guardians and next friends of Thomas M. Allbrink
and others similarly situated & Elizabeth Jacobs, as parent,
guardian and next friend of Jason R. Jacobs and others similarly
situated, Plaintiffs, represented by Mark R. Azman, O'Meara Leer
Wagner & Kohl, PA & Shamus P. O'Meara, O'Meara Leer Wagner & Kohl,
PA. 7401 Metro Boulevard / Suite 600, Minneapolis, MN 55439-3034
Minnesota Department of Human Services, an agency of the State of
Minnesota & State of Minnesota, Defendants, represented by Aaron
Winter, Minnesota Attorney General's Office, Anthony R. Noss,
Minnesota Attorney General's Office, Michael N. Leonard, Minnesota
Attorney General's Office & Scott H. Ikeda, Minnesota Attorney
General's Office.
Director, Minnesota Extended Treatment Options, a program of the
Minnesota Department of Human Services, an agency of the State of
Minnesota, Clinical Director, the Minnesota Extended Treatment
Options, a program of the Minnesota Department of Human Services,
an agency of the State of Minnesota & Douglas Bratvold,
individually, and as Director of the Minnesota Extended Treatment
Options, a program o f the Minnesota Department of Human Services,
an agency of the State of Minnesota, Defendants, represented by
Aaron Winter, Minnesota Attorney General's Office & Scott H. Ikeda,
Minnesota Attorney General's Office.
Scott TenNapel, individually, and as Clinical Director of the
Minnesota Extended Treatment Options, a program o f the Minnesota
Department of Human Services, an agency of the State of Minnesota,
Defendant, represented by Aaron Winter, Minnesota Attorney
General's Office, Christopher A. Stafford, Fredrikson & Byron, PA,
Samuel D. Orbovich -- sorbovich@fredlaw.com -- Fredrikson & Byron,
PA & Scott H. Ikeda, Minnesota Attorney General's Office.
MONTREAL: Judge Authorizes Racial Profiling Class Action
--------------------------------------------------------
Montreal Gazette reports that a class-action suit seeking
compensation from the city of Montreal for incidents of racial
profiling by its police department has been given leave to proceed
by a Superior Court justice. In a 14-page ruling made Aug. 7, Judge
André Provost provided a list of questions that would need to be
addressed by the proceeding, including whether police engaged in
discriminatory conduct based on racial profiling that violated
Charter rights, whether those incidents cause damages to members of
a particular group, whether police should be held liable for those
damages and what the amount of those damages should be. [GN]
MOON RIDGE: Court Certifies Class of Laid Off Employees
-------------------------------------------------------
In the class action lawsuit styled as DAWN MORRIS, et al., the
Plaintiffs, vs. MOON RIDGE FOODS, LLC, et al., the Defendants, Case
No. 18-CV-03219-SRB (W.D. Mo.), the Hon. Judge Stephen R. Bough
entered an order on Sept. 4, 2019:
1. certifying a class of:
"all former employees who worked at or reported to the
facility located at 5305 Highway H Pleasant Hope, MO 65725
(Facility) until they were laid off, furloughed and/or
terminated, without cause on their part, on or about January
11, 2018, within 30 days before that date or in the 60 days
thereafter, as part of, or as the reasonably expected
consequence of, the mass layoff and/or plant closing
occurring on or about January 11 and 12, 2018, and who do
not file a timely request to opt-out of the class";
2. appointing Dawn Morris as Class Representative;
3. appointing Gardner Firm, P.C., Lankenau & Miller LLP, and
Rouse Frets White Goss Gentile Rhodes, P.C. as Class
Counsel;
4. approving proposed form of Notice to the Class submitted
with the parties' joint Stipulation of Class Certification;
5. directing Defendants to provide Class Counsel with an
electronic spreadsheet containing the names and last known
addresses of the former employees encompassed by the Class
(Class Spreadsheet);
6. directing Class Counsel to mail the notice, First Class
postage prepaid, within 21 business days of entry of this
Order, to the proposed members of the Class at their last
known addresses as shown on the Class Spreadsheet;
7. directing Class Members who wish to opt-out of the Class in
this matter must complete the opt-out form, included with
the Class Notice, and must sign and mail that opt-out form
to:
Attn: Mary E. Olsen
The Gardner Firm, P.C.
P.O. Box 3103,
Mobile, AL 36652;
So that it is post-marked no later than 30 days after the
due date on which Class Notice was mailed and received by
Ms. Olsen within seven days of that date. All requests for
exclusion post-marked more than thirty (30) days after the
date on which the Class Notice was mailed or received by Ms.
Olsen more than seven days after that date will not be
effective, and any person who sends a late request will be a
member of the Class in the Action and will be bound in the
same way and to the same extent as all other Class Members;
and
8. directing Class Counsel to serve and file a sworn statement
listing the names of any persons who have timely opted out
of the class, within five days after the last date on which
a Class Member may timely opt-out.
The Court finds that Plaintiff satisfies Rule 23(b)(3), as
questions of law and fact common to the proposed class "predominate
over any questions affecting only individual members" and that a
class action is the superior method of adjudicating this case. Fed.
R. Civ. P. 23(b)(3). "The predominance inquiry tests whether
proposed classes are sufficiently cohesive to warrant adjudication
by representation and goes to the efficiency of a class action as
an alternative to individual suits."
A class action represents the best method for promptly and
efficiently resolving the common questions of law and fact
presented, and this forum is ideal for concentrating the litigation
of the WARN Act claims of the proposed Class Members. Each Class
Member's claim would be impractical to bring as an individual
claim. Additionally, the proposed class presents few difficulties
in managing the litigation. Class Members can be easily identified
by company records, and Defendants’ potential liability can be
readily calculated. Accordingly, the Class meets all criteria for
certification and is certified pursuant to the
requirements of Rule 23(a) and (b)(3).
The Plaintiffs allege that Defendants violated the Worker
Adjustment and Retraining Notification Act of 1988 by failing to
give Plaintiffs at least 60 days advance written notice before
terminating their employment. The Plaintiffs request back pay and
benefits under the Employee Retirement Income Security Act of 1974.
MRI INTERNATIONAL: Court Approves $220K Sale of Honolulu Property
-----------------------------------------------------------------
In the case, SHIGE TAKIGUCHI, FUMI NONAKA, MITSUAKI TAKITA, TATSURO
SAKAI, SHIZUKO ISHIMORI, YUKO NAKAMURA, MASAAKI MORIYA, HATSUNE
HATANO, and HIDENAO TAKAMA, individually and on behalf of all
others similarity situated, Plaintiff, v. MRI INTERNATIONAL, INC.,
EDWIN J. FUJINAGA, JUNZO SUZUKI, PAUL MUSASHI SUZUKI, LVT, INC.,
dba STERLING ESCROW, and DOES 1-500, Defendants, Case No.
2:13-cv-01183-HDM-NJK (D. Nev.), Judge Howard D. McKibben of the
U.S. District Court for the District of Nevada has entered an order
authorizing the sale of 445 Seaside Avenue, Unit 3014, Honolulu,
Hawaii 96815 for $220,000 pursuant to the terms of the Purchase and
Sale Agreement.
The parties submit their amended stipulation and proposed order
authorizing sale of real properties located at 145 E. Harmon
Avenue, Units 2702 and 2704, Las Vegas, Nevada 89109 to revise a
typographical error in the order of the previously filed
stipulation.
On May 22, 2018 the Court granted final approval of the class
action settlement with the Suzuki Defendants. Pursuant to the
Settlement Agreement, the parties listed for sale the properties
located at 445 Seaside Avenue, Unit 3014, Honolulu Hawaii 96815 for
sale.
The Property has been on the market since Feb. 20, 2018. It was
originally listed for $285,000, but due to lack of interest, the
price of the Property has been reduced several times, and is
currently listed at $250,000.
The parties have received an all cash offer to purchase the
Properties for $220,000 with an escrow period of 30 days. They
believe that given the terms of the offer, it is in their best
interest o sell the Properties for this price and the agreed upon
terms.
Based on the forgoing, the parties stipulated that the Court
authorizes the sale of 445 Seaside Avenue, Unit 3014, Honolulu
Hawaii 96815 for $220,000 and pursuant to the terms of the Purchase
and Sale Agreement attached to the Order as Exhibit A.
Judge McKibben granted and so ordered.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/SqomQj from Leagle.com.
Shige Takiguchi, Fumi Nonaka, Kaoruko Koizumi, Tatsuro Sakai &
Mitsuaki Takita, Plaintiffs, represented by James Edwin Gibbons --
jeg@manningllp.com -- Manning & Kass Ellrod, Ramirez, Trester LLP,
James R. Olson, Olson, Cannon, Gormley, Angulo & Stoberski, Mariko
Taenaka, Law Offices of Robert W. Cohen, Robert W. Cohen, Law
Offices of Robert W. Cohen, APC & Steven Jeff Renick --
sjrnull@nullmanningllp.com -- Manning & Kass, Ellrod, Ramirez,
Trester LLP.
Shizuuko Ishimori, Yoko Hatano, Yuko Nakamura, Hidehito Miura,
Yoshiko Tazaki, Masaaki Moriya, Hatsune Hatano, Satoru Moriya,
Hidenao Takama, Shigeru Kurisu, Saka Ono, Kazuhiro Matsumoto, Kaya
Hatanaka, Hiroka Yamajiri, Kiyoharu Yamamoto, Junko Yamamoto,
Koichi Inoue, Akiko Naruse, Toshimasa Nomura & Ritsu Yurikusa,
Plaintiffs, represented by James Edwin Gibbons, Manning & Kass
Ellrod, Ramirez, Trester LLP, James R. Olson, Olson, Cannon,
Gormley, Angulo & Stoberski, Mariko Taenaka, Law Offices of Robert
W. Cohen, Robert W. Cohen, Law Offices of Robert W. Cohen, APC &
Steven Jeff Renick, Manning & Kass, Ellrod, Ramirez, Trester LLP,
pro hac vice.
MRI International, Inc. & Edwin J Fujinaga, Defendants,
represented
by Daniel L. Hitzke, Hitzke & Associates & Erick M. Ferran.
Junzo Suzuki, Defendant, represented by Jeffrey A. Silvestri --
jsilvestri@mcdonaldcarano.com -- McDonald Carano Wilson, Nicolas
Morgan -- nicolasmorgan@paulhastings.com -- Paul Hastings LLP, pro
hac vice & Paul J. Georgeson -- pgeorgeson@mcdonaldcarano.com --
McDonald Carano Wilson LLP.
ICAG, INC., Defendant, represented by Jacob A. Reynolds --
jreynolds@hutchlegal.com -- Hutchison & Steffen, Mark A. Hutchison
-- mhutchison@hutchlegal.com -- Hutchison & Steffen, LLC & Robert
T. Stewart -- rstewart@hutchlegal.com -- Hutchison & Steffen, LLC.
First Hawaiian Bank, Defendant, represented by Christopher R.
Ramos
-- cramos@vedderprice.com -- Vedder Price (CA), LLP, pro hac vice,
Rex Garner -- rex.garner@akerman.com -- Akerman LLP, Ariel E.
Stern
-- ariel.stern@akerman.com -- Akerman LLP, Lisa M. Simonetti --
lsimonetti@vedderprice.com -- Vedder Price, LLP.
Suzuki Enterprises, Inc. Profit Sharing Plan, Defendant,
represented by Gregg D. Zucker -- gregg@foundationlaw.com --
Foundation Law Group & Robert A. Rabbat --
rrabbat@enensteinlaw.com
-- Enenstein Ribakoff LaVina & Pham.
Damon Key Leong Kupchak Hastert, Interested Party, represented by
Paul D. Alston -- PAlston@ahfi.com -- Alston Hunt Floyd & Ing,
Albert G. Marquis -- amarquis@maclaw.com -- Marquis & Aurbach,
Candice Renka -- crenka@maclaw.com -- Marquis & Aurbach & Nickolas
A. Kacprowski -- NKacprowski@ahfi.com -- Alston Hunt Floyd & Ing.
Mary Luszczyk, Material Witness, represented by Mark S. Dzarnoski,
Gordan & Silver, Ltd.
MY PILLOW: Bid to File Under Seal in Wuest Suit Partly Granted
--------------------------------------------------------------
In the case, RICHARD WUEST, on behalf of himself and all others
similarly situated individuals, Plaintiff, v. MY PILLOW, INC., and
DOES 1 through 50, inclusive, Defendants, Case No. 18-03658 WHA
(N.D. Cal.), Judge William Alsup of the U.S. District Court for the
Northern District of California (i) denied the Plaintiff's motion
for class certification, and (ii) granted in part and denied in
part the Defendant moves to file under seal.
The case is a putative class action by Wuest against the Defendant.
Wuest asserts a single claim for violation of California Penal
Code Section 632.7 based on My Pillow's alleged unwarned and
unconsented recording and monitoring of inbound calls and seeks
statutory damages. Most of the underlying facts were developed on
briefing for the instant motion and are briefly summarized herein.
My Pillow had toll-free numbers by which consumers could reach
sales and customer service agents. Up until Dec. 27, 2017, My
Pillow used a pre-recorded greetings, which informed all callers at
the outset that their calls were recorded by My Pillow for quality
assurance. The post-holiday rush, however, brought an attendant
influx of customer calls for exchanges and gift cards.
On Dec. 27, 2017, My Pillow briefly changed allegedly for both
sales and customer service numbers the automated message to one
that informed callers that, "due to very heavy call volume," they
would experience "extremely long wait times" as a courtesy to its
customers. On Feb. 19, 2018, three days after Wuest filed the
instant class action, My Pillow returned the automated message to
again include a call recording warning.
It was during this brief period that Wuest called My Pillow on
multiple occasions. On Jan. 22, 2018, Wuest called My Pillow's
sales number three times from his cell phone, while in California,
to inquire about the company's products and to place an order.
During the first call, Wuest asked the sales representative general
questions of inquiry. During the second call, Wuest placed an
order. During the third call that day, Wuest asked whether My
Pillow recorded such calls, which the sales representative
confirme. On Feb. 8 and 9, 2018, Wuest called My Pillow's customer
service line twice from his cell phone in California regarding the
shipping status of his order. It is undisputed that My Pillow's
customer service line did not warn customers of the call recording
during that time.
Wuest subsequently filed the instant action on Feb. 16, 2018. He
now seeks to represent those who called My Pillow during the time
period at issue. He has filed ten prior CIPA class actions but
always settled them before moving for class certification. This is
the first of his cases ever to reach the class certification stage.
He seeks to certify the following class pursuant to Federal Rules
of Civil Procedure 23(a) and 23(b)(3) (Dkt. No. 32 at 2):
Certifying a class (the Class) of all persons who, at any time
during the period from Dec. 27, 2017 through Feb. 19, 2018,
inclusive, called one or more of My Pillow, Inc.'s (Defendant)
toll-free telephone numbers using a cellular or cordless telephone
with a California area code while located within the State of
California and who was connected to a My Pillow representative.
Wuest also seeks in the alternative to certify certain subclasses.
In opposing the class certification motion, My Pillow contends that
Wuest is an inadequate class representative with atypical claims.
It further opposes on the ground that individual issues would
predominate.
Judge Alsup finds that Wuest's litigation history is more than
unusual. He finds that it shows a pattern of using the threat of
class actions to extract an undeserved premium on an individual
claim. This pattern is further evidenced by the fact that in
several of the cases, both Wuest and his counsel received
settlement amounts disproportionate to maximum recovery allowed
under the statute. In Wuest's suit against Complete Recovery
Corporation, for example, Wuest received one allegedly illicit
phone call from the defendant. His statutory maximum recovery was
thus $5,000. Yet Wuest received $10,000, thanks to the settlement
-- i.e., double the statutory maximum amount. Equally bad, his
counsel received $70,000 in that settlement despite the lack of any
statutory basis for recovery of attorney's fees. The statute in
question makes no provisions for any attorney's fees.
He also finds that the Plaintiff has abused the class action device
whereby the defendants might well be willing to pay the named
plaintiffs a premium for the elimination of the class. Someone who
has abused the Rule 23 process in this way for his own benefit
should not be put in charge of protecting a class. Wuest is liable
to abuse the class action device again and to place his own
interest above those of the class. Moreover, Wuest's extensive
CIPA litigation history renders him uniquely vulnerable to a
defense strategy.
Based on the foregoing, the Judge finds that Wuest is an inadequate
class representative and an atypical Plaintiff so as to preclude
class certification under Rule 23(a).
My Pillow seeks to file under seal in connection with the motion
for class certification certain portions of its opposition and
certain exhibits designated as confidential by Wuest. Wuest filed
a supporting declaration stating that the information he seeks to
seal relates to confidential settlement information from other
lawsuits in which he was a party and which potentially contains
attorney-client privileged communications. For the reasons stated
during the hearing on Wuest's motion for class certification, the
Judge will deny the request to file under seal information relating
to Wuest's prior litigation history.
As to Exhibit 4, however, which is the retainer agreement between
Wuest and his counsel, Wuest specifically seeks to seal information
regarding Keller Grover LLP's (Wuest's counsel) proprietary
business practices and Wuest's personal contact information. The
Judge will grant Wuest's request to seal Exhibit 4 to the extent
supported by Wuest's supporting declaration. My Pillow will
publicly refile the documents at issue in comport with this order
by August 13 at noon.
For the foregoing reasons, Judge Alsup (i) denied the Plaintiff's
motion for class certification, and (ii) granted in part and denied
in part the Defendant moves to file under seal.
A full-text copy of the Court's Aug. 6, 2019 Order is available at
https://is.gd/Kc2LHu from Leagle.com.
Richard Wuest, individually and on behalf of a class of similarly
situated individuals, Plaintiff, represented by Eric A. Grover --
eagrover@kellergtover.com -- Keller Grover LLP.
My Pillow, Inc., Defendant, represented by Donald A. Beshada --
dbeshada@gmail.com -- Beshada Farnese LLP & Peter J. Farnese --
pjf@beshadafarneselaw.com -- Beshada Farnese LLP.
NAT'L MILK: Discovery Sought on Economist's Role in Class Action
----------------------------------------------------------------
Madison Record reports that economist Mark Dwyer violated
confidentiality by helping economist Russell Lamb estimate damages
in a class action, the National Milk Producers Association alleges
in U.S. district court.
Dwyer was provided with a report relating to more than 300 dairy
farms by name, association counsel Jonathan Sallet of Washington
wrote on Aug. 5.
Sallet wrote that the report contained the amounts of bids that
farmers placed and their production numbers for multiple years. It
allegedly listed competitively sensitive prices that specific
cooperatives charged to specific customers, and details of
contracts.
"Defendants need additional discovery to determine what highly
confidential information Dr. Dwyer obtained and what he has done
with it," Sallet wrote.
Lead plaintiff First Impressions Salon, a Vermont business, filed
an antitrust suit against the association in 2013.
First Impressions claims its herd retirement program raised milk
prices for five years, and seeks damages from three cooperatives,
Land O' Lakes, Agri-Mark, and Dairy Farmers of America.
Damages are also sought from Cooperatives Working Together, a group
of 33 cooperatives supporting the program.
District Judge Nancy Rosenstengel certified two classes in 2017,
one for cheese buyers and one for butter buyers.
Trial is set to start this Oct. 1.
On May 3, Lamb submitted a report on damages through his firm,
Monument Economics Group.
Land O' Lakes moved to exclude it on May 31, claiming he improperly
recalculated rates that regulators set.
On July 23, defendants received an anonymous letter stating Dwyer
wrote it.
The author wrote that Dwyer wasn't an employee of Monument and
didn't sign the confidentiality order.
Next day, Sallet moved for a discovery order on behalf of the
producers.
Sallet wrote that at a deposition, Lamb didn't identify Dwyer or
any other firm as persons who assisted him in any way.
On July 31, class counsel Charles Barrett of Tennessee responded
that defendants should have thrown the letter in the trash.
Barrett wrote that in March, Dwyer executed a contract with a
confidentiality clause.
He wrote that Lamb considers Dwyer a member of the staff and
Monument lists him as an employee on billing statements. He also
wrote that the report consisted of 205 paragraphs, and Dwyer
contributed material that appeared in 24 paragraphs.
"Any language Dwyer suggested was carefully reviewed and approved
by Lamb and other Monument staff working under his direction,"
Barrett wrote.
He wrote that Monument billed plaintiffs for 9,303 hours through
May 3, and that Dwyer expended 62.6 of those hours.
"Lamb answered truthfully at his deposition, because he understood
the questions to be asking whether he had consulted with economists
not affiliated with Monument, and he considers Dwyer to be part of
Monument's staff," Barrett wrote.
"When asked about staff at Monument who assisted him, he recalled
at the time the names of three, but not all persons, including
Dwyer."
In reply, Sallet wrote that it was implausible that Lamb wouldn't
recall hiring Dwyer as a special consultant.
He wrote that when defendants filed the motion, they didn't know
whether the letter was truthful.
"But we now know that there is truth to the letter," Sallet wrote.
He wrote that Dwyer's contract addressed confidential information
of Monument, not confidential information of parties in litigation.
"It is unclear what work Dr. Dwyer may have done beyond the 24
paragraphs of direct input," he wrote.
He wrote that defendants don't know the paragraphs on which he
provided input, and that Lamb implied in a declaration that Dwyer's
language may have been included wholesale.
"Dr. Dwyer is an expert in his own right and he was not disclosed
as assisting Dr. Lamb when Dr. Lamb was asked directly about it in
his deposition," Sallet wrote.
He wrote that Dwyer apparently still hadn't signed the protective
order.
"Dr. Lamb is plaintiff's main witness in this case affecting dairy
farmers across the United States, and the integrity of his opinions
is central to this case," he wrote. [GN]
NBC WEST: Removes Taylor Suit to Central District of California
---------------------------------------------------------------
NBC West, LLC removes the case captioned as TRAVIS TAYLOR,
individually and on behalf of all others similarly situated, the
Plaintiff, v. NBC WEST, LLC, a Delaware Limited Liability Company,
and DOE 1 through and including DOE 10, the Defendants, Case No.
19STCV23319 (Filed July 5, 2019), from the Superior Court of the
State of California for the County of Los Angeles, to the U.S.
District Court for the Central District of California on Sep. 4,.
2019. The Central District of California Court Clerk assigned Case
No. 2:19-cv-07663-CAS-PLA to the proceeding.
The complaint alleges that Defendant failed to provide meal breaks
and rest breaks; failed to provide pay stubs; failed to pay minimum
wage and overtime; and failed to reimburse necessary expenses,
pursuant to the California Labor Code.[BN]
Attorneys for the Defendant are:
Emma Luevano, esq.
Stephen A. Rossi, Esq.
MITCHELL SILBERBERG & KNUPP LLP
2049 Century Park East, 18th Floor
Los Angeles, CA 90067-3120
Telephone: (310) 312-2000
Facsimile: (310) 312-3100
E-mail: eyl@msk.com
sar@msk.com
NEW HAMPSHIRE: Court Drops Judge as Defendant in Detention Suit
---------------------------------------------------------------
The United States District Court for the District of New Hampshire
issued an Order granting Defendant Judge King's Motion to Dismiss
in the captioned John Doe, et al. v. Jeffrey A. Meyers,
Commissioner of the New Hampshire Department Of Health and Human
Services, et al. Civil No. 18-cv-1039-JD. (D.N.H.).
The plaintiffs have filed a putative class action that challenges
practices used by New Hampshire hospitals and the Department of
Health and Human Services to involuntarily detain individuals who
experience mental health crises and seek treatment in hospital
emergency rooms. In the amended complaint, the plaintiffs bring
claims for violation of their procedural due process rights under
the federal and New Hampshire constitutions, a claim of violation
of RSA 135-C:31, I, and state law claims for false imprisonment.
David D. King, Administrative Judge of the New Hampshire Circuit
Court, is named in his official capacity as a necessary party under
Federal Rule of Civil Procedure 19(a)(1)(A).
Judge King moves to dismiss the action against him.
In support, he states that he has not been served and service
cannot be made on him, that the Eleventh Amendment precludes the
suit, that this court cannot grant the requested relief, and that
he is not a necessary party.
In response, the plaintiffs ignore the service issue, and argue
that Judge King is a necessary party who is not affected by
immunity under the Eleventh Amendment.
Capacity
As alleged in the amended complaint, Judge King is sued in his
official administrative capacity. In contrast to personal capacity
suits, which seek to impose liability on a government official for
actions taken under color of state law, claims against parties in
their official capacities generally represent only another way of
pleading an action against an entity of which an officer is an
agent.
Therefore, it appears that although Judge King is named, the suit
is brought against the New Hampshire Circuit Court.
Service of Process
Judge King, on behalf of the Circuit Court, states that he has not
been served and that the suit should be dismissed as to him for
that reason. The plaintiffs represent that after the motion to
dismiss was filed, they sent Judge King a waiver of service, which
he signed. The waiver of service was filed on August 2, 2019.
Eleventh Amendment and Sovereign Immunity
Judge King also contends that the plaintiffs' claims are barred by
the Eleventh Amendment. Unless an exception applies, the Eleventh
Amendment precludes suits against states by private individuals in
federal court.
In response to the motion to dismiss, the plaintiffs state that
they assert no claims against Judge King, and thus his concerns
about sovereign or judicial immunity are inapposite. They further
explain that Judge King is named in the suit to ensure that
equitable relief for Plaintiffs can be fashioned without impinging
on the administrative realities of the Circuit Court system. In
essence, the plaintiffs attempt to avoid the effect of the Eleventh
Amendment by joining Judge King in the suit without explicitly
bringing claims that, if successful, would require the Circuit
Court to provide them relief.
Subject Matter Jurisdiction
The restriction imposed by Article III implicates a plaintiff's
standing to bring a claim and the ripeness of the claim. To
establish standing, a plaintiff must show an injury in fact, which
is both concrete and particularized and actual or imminent, not
conjectural or hypothetical. In addition, a claim is not ripe if it
rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all.
Here, the plaintiffs state that they have not brought a claim
against Judge King and do not seek relief from him. Instead, they
contend that the other parties cannot possibly formulate a remedy
without the Circuit Court's involvement in this case because the
parties need to know the feasibility of remedies to this due
process crisis that the Circuit Court will ultimately oversee.
Importantly, the plaintiffs do not allege that the Circuit Court or
Judge King has ever refused to conduct a probable cause hearing or
has ever in any way thwarted their efforts in that regard.
They do not allege any actions or failures to act by the Circuit
Court or Judge King that have violated their rights. Instead, they
anticipate that logistical problems may arise if the other
defendants are ordered to provide probable cause hearings. Such
anticipated problems have not yet occurred, and the plaintiffs have
not alleged facts to show that, if they are successful, the Circuit
Court or Judge King is likely to cause such problems.
Therefore, the complaint does not allege a justiciable case or
controversy as to Judge King or the Circuit Court. As a result,
this court lacks subject matter jurisdiction to consider the
plaintiffs' concerns about possible future issues that might or
might not involve the Circuit Court.
Claims and Relief
Alternatively, and despite the plaintiffs' representations in their
objection to the motion to dismiss, their amended complaint might
be construed to allege that the Circuit Court failed to conduct
timely hearings in violation of due process and RSA 135-C:31. The
plaintiffs also state that they are seeking prospective injunctive
relief to require those hearings. As such, the complaint might be
construed to bring claims and to seek relief from the Circuit
Court.
As is noted above, the Eleventh Amendment precludes suits against
states by private parties in federal courts. The plaintiffs argue
that the Eleventh Amendment does not proscribe future injunctive
relief to require conformity with federal law.
In Ex Parte Young, 209 U.S. 123, 159-60 (1908), the Supreme Court
recognized a narrow exception to Eleventh Amendment immunity when a
state official uses the name of the state to act in violation of
the Constitution. Therefore, a claim against a state official in
his official capacity will avoid Eleventh Amendment immunity if the
complaint alleges an ongoing violation of federal law by the state
official and seeks prospective relief.
In an attempt to show that they alleged an ongoing violation of
federal law by Judge King, despite alleging no claim against him,
the plaintiffs state in their objection: Plaintiffs in this action
have named the Administrative Judge as a necessary party and have
clearly asserted that New Hampshire officials are acting in
contravention of constitutional law by failing to provide timely
due process hearings.
The plaintiffs have not alleged any actions by Judge King that
violate federal law or their constitutional rights. Further, to the
extent the plaintiffs are seeking a prospective injunction to
require the Circuit Court to hold probable cause hearings in the
future, they have not alleged an existing constitutional violation
by Judge King that an injunction would remedy.
Therefore, the plaintiffs have not shown that the exception to
Eleventh Amendment immunity applies here.
Administrative Function
The plaintiffs also argue that the Eleventh Amendment does not
preclude joining Judge King because the suit focuses on the court's
administrative function.
In Rivera-Puig, the plaintiff brought suit against a Commonwealth
judge, apparently in his personal capacity, challenging his use of
a state procedural rule to deny the plaintiff access to certain
court proceedings. That part of the decision cited by the
plaintiffs addresses whether there was a case or controversy, for
purposes of Article III jurisdiction, between the judge and the
plaintiff based on the judge's administrative function in applying
the court rule. Nothing in the case addresses an administrative
function exception to the Eleventh Amendment.
The plaintiffs have not shown that an administrative function
exception exists that would preclude Eleventh Amendment protection
for Judge King or the Circuit Court in this case.
Joinder
The plaintiffs argue that they can join Judge King in this action
under Federal Rule of Civil Procedure 19, as a necessary party,
without bringing any claims against him or the Circuit Court. The
case cited by the plaintiffs in support, acknowledges a circuit
split on the issue, and was later clarified in EEOC v. Peabody W.
Coal Co., 610 F.3d 1070, 1079 (9th Cir. 2013).
In Gonzalez-Aviles v. Perez, 2016 WL 3440581, at *2 (D. Md. June
17, 2016), the court disagreed with the original Ninth Circuit
opinion, holding that Rule 19 does not create a cause of action
against a party" and does not allow joinder of parties when they
have committed no wrong and are joined soley so that the plaintiffs
can obtain complete relief.
This court is not persuaded that the plaintiffs may join Judge King
or the Circuit Court under Rule 19 in the absence of a viable cause
of action against either of them. Further, the plaintiffs have not
shown that Rule 19 would overcome the jurisdictional requirements
of Article III or the immunity provided by the Eleventh Amendment.
Judge King's motion to dismiss is granted.
A full-text copy of the District Court's August 28, 2019 Order is
available at https://tinyurl.com/y63yme4j from Leagle.com.
John Doe, Charles Coe, Jane Roe & Deborah A. Taylor, as guardian
for Scott Stephen Johnstone, Plaintiffs, represented by Aaron J.
Curtis – aaron.curtis@weil.com -- Weil Gotshal & Manges, pro hac
vice, Lara E. Veblen Trager -- lara.trager@weil.com -- Weil Gotshal
& Manges, pro hac vice, Theodore E. Tsekerides --
theodore.tsekerides@weil.com -- Weil Gotshal & Manges, pro hac
vice, Henry Klementowicz, American Civil Liberties Union of New
Hampshire & Gilles R. Bissonnette, American Civil Liberties Union
of New Hampshire, 18 Low Avenue Concord, New Hampshire 03301
New Hampshire Hospital Association, Alice Peck Day Memorial
Hospital, Androscoggin Valley Hospital, Catholic Medical Center,
Cheshire Medical Center, Concord Hospital, Cottage Hospital, Elliot
Hospital, Frisbie Memorial Hospital, HCA Health Services of New
Hampshire, Huggins Hospital, Littleton Hospital Association,
LRGHealthcare, Mary Hitchcock Memorial Hospital, Monadnock
Community Hospital, New London Hospital, Southern New Hampshire
Medical Center, Speare Memorial Hospital, Upper Connecticut Valley
Hospital, Valley Regional Hospital & Weeks Medical Center,
Intervenor Plaintiffs, represented by Michael D. Ramsdell, Ramsdell
Law Firm PLLC,1736 E. Sunshine, Suite 519, Springfield, Missouri
65804
NH Department of Health and Human Services, Commissioner, Official
Capacity, Defendant, represented by Anthony Galdieri, Office of the
Attorney General, Lindsey B. Courtney, NH Department of Justice,
Samuel R.V. Garland, NH Attorney General's Office & Scott Edward
Sakowski, NH Attorney General's Office.
Southern New Hampshire Medical Center, Defendant, represented by
Michael D. Ramsdell, Ramsdell Law Firm PLLC.
New Hampshire Circuit Court District Division, Defendant,
represented by Kelvin A. Brooks, NH Department of Environmental
Services.
NEW YORK UNIVERSITY: Berger Remanded to State Court
---------------------------------------------------
Judge J. Paul Oetken of the U.S. District Court for the Southern
District of New York granted Berger's motion to remand the case,
RICHARD BERGER, for himself and on behalf of all others similarly
situated, Plaintiff, v. NEW YORK UNIVERSITY, Defendant, Case No.
19-CV-267 (JPO) (S.D. N.Y.), back to New York Supreme Court, New
York County.
Berger filed the putative class action in New York Supreme Court,
New York County, on Dec. 11, 2018, seeking to hold his employer,
Defendant New York University ("NYU"), liable for alleged
violations of the New York Labor Law ("NYLL") and the New York
Codes, Rules, and Regulations ("NYCRR"). Berger alleges that NYU
has been engaged in a policy and practice of requiring its guards
to regularly work over 40 hours in a week without paying them all
earned overtime wages.
In particular, Berger alleges that NYU has failed to pay its guards
for a portion of the time they spend before and after each shift
changing into and out of their uniforms and traveling to and from
their assigned posts. By failing to pay its employees for this
supposedly "compensable work time," including by failing to pay
overtime where due, NYU has, according to the complaint, violated
both the NYLL and the NYCRR, N.Y.
Berger seeks redress for these alleged violations on his own behalf
and on behalf of a Plaintiff class consisting of all those who
performed work as security guards and in other related trades for
NYU at any time between December 2012 and the present.
NYU removed the case to federal court on Jan. 9, 2019. As grounds
for removal, NYU invoked Section 301 of the LMRA, which, as
relevant, confers federal jurisdiction over suits for violation of
contracts between an employer and a labor organization. Although
Berger does not in so many words allege the violation of such a
contract, NYU explained that the terms of Berger's employment are
governed by a collective-bargaining agreement ("CBA") negotiated
between NYU and Berger's union, the Local One Security Officers
Union, and that Berger's claims clearly implicate, and require the
interpretation of," the CBA's wage and hour provisions. In
addition, NYU contended, federal jurisdiction under the LMRA is
proper because NYU intends to file a motion to dismiss or compel
arbitration on the grounds that Berger's claims are subject to a
mandatory grievance and arbitration procedure set out in the CBA.
On Feb. 7, 2019, Berger moved to remand the case back to state
court. That motion has been fully briefed.
Judge Oetken concludes that NYU has failed to demonstrate that
establishing its liability on the state-law claims Berger has
asserted in this case will require interpretation of the CBA.
Having so concluded,he considers NYU's remaining arguments for
removal. Ultimately, he finds that NYU has failed to establish
that the LMRA preempts Berger's claims. Even though it may
eventually turn out that evaluating Berger's claims under New York
law will require interpretation of the CBA, such that it ultimately
becomes clear that his claims are indeed preempted, NYU has not
proven the point at this stage of the litigation. Because the
Court must resolve any doubts against removability, the Judge
concludes that the case must be remanded to state court.
For the foregoing reasons, Judge Oetken granted Berger's motion to
remand. He directed the Clerk of Court to close the motion at
Docket Number 11, close the case on the Court's docket, and remand
the case to the New York Supreme Court, New York County.
A full-text copy of the Court's Aug. 2, 2019 Opinion and Order is
available at https://is.gd/EWkrBN from Leagle.com.
Richard Berger, for himself and on behalf of all others similarly
situated, Plaintiff, represented by Alanna Rose Sakovits, Virginia
& Ambinder, LLP, James Emmet Murphy -- jmurphy@vandallp.com --
Virginia & Ambinder, LLP & Lloyd Robert Ambinder, Virginia &
Ambinder, LLP.
New York University, Defendant, represented by Garrett David
Kennedy -- garrett.kennedy@dlapiper.com -- DLA Piper US LLP &
Joseph A. Piesco -- joseph.piesco@dlapiper.com -- DLA Piper US
LLP.
OASIS LEGAL: 11th Cir. Affirms Denial of Bid to L. Davis' Suit
--------------------------------------------------------------
The United States Court of Appeals, Eleventh Circuit, issued an
Opinion affirming the District Court's judgment denying Defendants'
Motion to Dismiss in the case captioned LIZZIE DAVIS, individually
and on behalf of all others similarly situated, DENNIS GREEN,
individually and on behalf of all others similarly situated, JOHNNY
MOODY, individually and on behalf of all others similarly situated,
JOHN SUBER, individually and on behalf of all others similarly
situated, SHIRLEY WILLIAMS, individually and on behalf of all
others similarly situated, PAMELA DAVIS, individually and on behalf
of all others similarly situated, Plaintiffs-Appellees, v. OASIS
LEGAL FINANCE OPERATING COMPANY, LLC, OASIS LEGAL FINANCE, LLC,
OASIS LEGAL FINANCE HOLDING COMPANY, LLC, Defendants-Appellants.
No. 18-10526. (11th Cir.).
The plaintiffs entered into identical loan agreements with Oasis
Legal Finance, LLC, Oasis Legal Finance Operating Company, LLC; and
Oasis Legal Finance Holding Company, LLC. The loans generally
amounted to less than $3,000 and were to be repaid from any
recoveries that the plaintiffs received in their separate personal
injury lawsuits. The plaintiffs' obligations to repay the loans
were therefore contingent on success in the underlying lawsuits.
The plaintiffs filed a class action complaint against the Oasis
lenders in Georgia state court, alleging that the loan agreements
violated Georgia's Payday Lending Act, Industrial Loan Act and
usury laws.
The Oasis lenders removed the suit to federal court and moved to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6) and to strike the plaintiffs' class allegations under
Federal Rule of Civil Procedure 12(f). The Oasis lenders argued,
among other things, that the loan agreements' forum selection
clause required the plaintiffs to bring suit in Illinois, and that
the class action waiver barred their ability to file a class
action. The plaintiffs responded that these provisions violated
Georgia public policy and, therefore, were unenforceable.
Applying Georgia law, the district court rejected both of the
arguments made by the Oasis lenders and held that the forum section
clause and class action waiver were unenforceable. The district
court concluded that the enforcement of forum selections clauses in
payday lending contracts would contravene Georgia's public policy
as established by the Payday Lending Act.
It explained that certain payday lenders have attempted to use
forum selection clauses contained in payday loan documents in order
to avoid the courts of the State of Georgia, and the General
Assembly has determined that such practices are unconscionable and
should be prohibited. The district court similarly ruled that the
class action waiver contravened public policy because, when the
Georgia Legislature enacted the PLA and the GILA, it expressly
included class actions as a remedy for those aggrieved by payday
lenders.
The district court reasoned that the Georgia Legislature would not
create such a remedy and then allow lenders to effectively wipe
away this consumer protection with a waiver in a single paragraph
of a six-page, single-spaced agreement.
The enforceability of a forum selection clause is a question of law
that the Court reviews de novo. The same plenary standard governs
the enforceability of a class action waiver.
A forum selection clause, when properly bargained for, protects the
parties' legitimate expectations and furthers the vital interest of
the justice system. Such clauses "should be given controlling
weight in all but the most exceptional cases.
The Georgia Payday Lending Act, O.C.G.A. Section 16-17-1 et seq.,
states in relevant part as follows:
A payday lender shall not nor shall the loan contract designate a
court for the resolution of disputes concerning the contract other
than a court of competent jurisdiction in and for the county in
which the borrower resides or the loan office is located.
Based on this language, the Georgia Supreme Court ruled that the
PLA established a clear public policy against payday lenders that
have attempted to skirt the laws of Georgia by use of forum
selection clauses In ruling that the loan agreements' forum
selection clause is unenforceable in this case, the district court
found that Section 16-17-1(d) and Section 16-17-2(c)(1) were
conclusive as to Georgia's public policy.
On appeal, the Oasis lenders argue that two other subsections of
the PLA support the opposite conclusion.
First, the Oasis lenders assert that the word county in Section
16-17-2(c)(1) is unqualified, meaning that by permitting parties to
select a forum in and for the county in which the loan office is
located the PLA allows parties to select a county outside Georgia
for litigation if it is the county where the lenders' loan office
is located. The parties could therefore select as a forum the
county where the Oasis lenders operate their loan office, Cook
County, Illinois.
This argument has some superficial appeal, but the district court
rejected it, concluding that the word county in Section
16-17-2(c)(1) refers only to Georgia counties because that
subsection is a venue provision through which the Legislature
intended to allow parties to select fora within Georgia while
prohibiting outbound forum-selection clauses.
The Oasis lenders contend that the district court erred by reading
in the word Georgia in front of county in Section 16-17-2(c)(1).
The Court thinks the district court got it right.
Georgia venue provisions commonly use the term county or counties
in refence to Georgia counties, without explicitly saying so. For
example, Georgia's Constitution provides that joint trespassers
residing in different counties may be tried in either county and
Georgia courts have interpreted that provision to allow joint
tortfeasor residents of different Georgia counties to be sued in
either county. This makes sense given that the Georgia Legislature
generally has authority to establish venue rules within Georgia.
Given the PLA's condemnation of out-of-state lenders using forum
selection clauses to avoid Georgia courts in Section 16-17-1(d), it
would make little sense to conclude that the Georgia Legislature
intended the word county in the next subsection to include places
like Cook County, Illinois.
Next, the Oasis lenders contend that the PLA does not apply to loan
agreements between a Georgia borrower and an out-of-state lender
because Section 16-17-1(d) states that payday lending involves
relatively small loans and does not encompass loans that involve
interstate commerce.
The Court disagrees for a few reasons. First, the Oasis lenders'
arguments are mutually exclusive.
Arguing that the PLA does not apply to loans by an out-of-state
lender contradicts the lenders' argument that the Georgia
Legislature meant for the term county in Section 16-17-2(c)(1) to
include the county where an out-of-state lender maintains its home
office.
Second, other provisions of the PLA make clear that the Act governs
any business that consists in whole or in part of making loans of
$3,000.00 or less unless those entities are specifically exempted.
Third, excluding loans involving out-of-state lenders from coverage
as the Oasis lenders argue would render the PLA's prohibition of
out-of-state forum selection clauses meaningless.
Based on the Court's review, Georgia statutes establish a clear
public policy against out-of-state lenders using forum selection
clauses to avoid litigation in Georgia courts. Enforcing a forum
selection clause like the ones here would therefore contravene a
strong public policy of the forum in which suit is brought and the
district court correctly denied the Oasis lenders' motion to
dismiss on that ground.
The plaintiffs argue, and the district court concluded, that the
class action waivers contained in the loan agreements also
contravene the purpose of the PLA and the Georgia Industrial Loan
Act.
The PLA contains a provision stating that a civil action may be
brought on behalf of an individual borrower or on behalf of an
ascertainable class of borrowers.The GILA provides that a claim for
violation of this chapter against an unlicensed lender may be
asserted in a class action.
The district court concluded that, in passing these laws, the
Georgia Legislature expressly contemplated a specific remedy a
class action for persons aggrieved by predatory lending and did not
expressly create the class action remedy so that predatory lenders
could effectively wipe away this consumer protection with a
waiver.
On appeal, the Oasis lenders contend that the district court erred
by not considering whether the provision was procedurally or
substantively unconscionable. They also argue that neither the PLA
nor the GILA prohibit class action waivers or create a statutory
right to pursue a class action.
These arguments miss the point. The district court's ruling flowed
from its conclusion that enforcing class action waivers in this
context would allow payday lenders to eliminate a remedy that was
expressly contemplated by the Georgia Legislature, and thereby
undermine the purpose of the statutory scheme. That conclusion, if
correct, renders the class action waiver unenforceable under
Georgia law regardless of whether the provision is also
procedurally or substantively unconscionable.
The Oasis lenders may be correct in arguing that, when Georgia
courts address whether a contractual provision is substantively
unconscionable, they also consider the commercial reasonableness of
the contract terms, the purpose and effect of the terms, the
allocation of the risks between the parties, and similar public
policy concerns. The public policy bar, however, remains an
independent basis to hold a contractual provision unenforceable.A
hornbook example of the public policy defense is that a court will
not enforce a contractual provision that is illegal regardless of
whether its obligations are mutual, its terms are conspicuous, and
the parties are well represented.
The district court did not, and needed not, conclude that the PLA
or the GILA expressly prohibited class action waivers or created a
statutory right to pursue a class action. A contractual provision
need not literally conflict with Georgia law to contravene public
policy. Instead, the district court concluded that enforcement of
the class action waivers in this context would eliminate a remedy
contemplated by the Georgia Legislature and undermine the purpose
of the PLA and the GILA.
The PLA and the GILA establish the Georgia Legislature's intent to
preserve class actions as a remedy for those aggrieved by payday
lenders. Enforcing the class action waiver here would undermine the
purpose and spirit of Georgia's statutory scheme. The class action
waiver is therefore unenforceable, and the district court did not
err in denying the Oasis lenders' motion to strike the plaintiffs'
class allegations.
The Court affirms the district court's denial of the motion to
dismiss
A full-text copy of the Eleventh Circuit's August 28, 2019 Opinion
is available at https://tinyurl.com/y42ux9db from Leagle.com.
Jeremy S. McKenzie, Karsman, McKenzie & Hart, 21 W Park Ave,
Savannah, GA 31401, for Plaintiff-Appellee.
Robert Bartley Turner, Turner Law Offices, P.C., 208 3rd Ave N
Suite 100, Nashville, TN 37201, for Plaintiff-Appellee.
James Darren Summerville, 1601 Cherry St., Ste 600, Philadelphia,
PA 19102-1311, for Plaintiff-Appellee.
William M. McErlean, One North Wacker Drive, Suite 4400, Chicago,
IL 60606-2833, for Defendant-Appellant.
Kurt G. Kastorf, The Summerville Firm LLC, 400 Colony Square, Suite
2000, 1201 Peachtree St. NE, for Plaintiff-Appellee.
Angela R. Fox, The Summerville Firm LLC, 1226 Ponce de Leon Ave.
NE, Atlanta, GA 30306, for Plaintiff-Appellee.
Kara Cleary, Atlanta Financial Center 3343 Peachtree Road, N.E.,
Suite 1150, Atlanta, GA 30326, for Defendant-Appellant.
Maxwell Kent Thelen, The Summerville Firm LLC, 1226 Ponce de Leon
Ave. NE, Atlanta, GA 30306, for Plaintiff-Appellee.
Christine Skoczylas, One North Wacker Drive, Suite 4400, Chicago,
IL 60606-2833, for Defendant-Appellant.
OCWEN FINANCIAL: Weiner May File Docs Under Seal in RICO Suit
-------------------------------------------------------------
In the case, DAVID WEINER, individually, and on behalf of other
members of the public similarly situated, Plaintiff, v. OCWEN
FINANCIAL CORPORATION, a Florida corporation, and OCWEN LOAN
SERVICING, LLC, a Delaware limited liability company, Defendants,
Case No. 2:14-cv-02597-MCE-DB (E.D. Cal.), Judge Morrison C.
England, Jr. of the U.S. District Court for the Eastern District of
California granted the Weiner's Request to File Plaintiff's
Opposition to Defendants' Motion for Partial Summary Judgment and
Supporting Documents Under Seal Pursuant to Local Rule 141.
The following unredacted documents will be filed under Seal
pursuant to Local Rule 141 and the Stipulated Amended Protective
Order entered in the case on April 26, 2019: (i) Plaintiff's
Opposition to Defendants' Motion for Partial Summary Judgment (26
pages); (ii) Declaration of Mark Pifko in Support of Plaintiff's
Opposition to Defendants' Motion for Partial Summary Judgment (8
pages); (iii) Exhibits 1-45 to the Declaration of Mark Pifko (645
pages); (iv) Plaintiff's Response to Defendants' Statement of
Undisputed Facts (40 pages); and (v) Plaintiff's Statement of
Disputed Facts (11 pages).
A full-text copy of the Court's Aug. 6, 2019 Order is available at
https://is.gd/oR5Vem from Leagle.com.
David Weiner, Plaintiff, represented by Daniel Alberstone --
dalberstone@baronbudd.com -- Baron & Budd, P.C., Roland Karim
Tellis, Baron & Budd, P.C., Evan M. Zucker, Baron & Budd, PC,
Michael Isaac Miller -- isaacm@bsjfirm.com -- Branstetter Stranch
&
Jennings, Peter Klausner -- peter.klausner.esq@gmail.com -- Baron
&
Budd, P.C., Sterling Lynn Cluff -- scluff@baronbudd.com -- Baron &
Budd PC & Mark Pifko -- mpifko@baronbudd.com -- Baron & Budd.
Ocwen Financial Corporation, a Florida Corporation & Ocwen Loan
Servicing, LLC, a Delaware Limited Liability Company, Defendants,
represented by Elizabeth Lemond McKeen -- emckeen@omm.com --
O'Melveny & Myers LLP, Melinda L. Haag -- mhaag@orrick.com --
Orrick Herrington & Sutcliffe LLP, Randy Scott Luskey --
rluskey@orrick.com -- Orrick, Herrington & Sutcliffe LLP, Ashley
Pavel -- apavel@omm.com -- O'Melveny & Myers LLP, Catalina Joos
Vergara -- cvergara@omm.com -- O'Melveny & Myers, Erika Maki Rasch
-- erasch@omm.com -- O'Melveny & Myers, LLP, James Abbott Bowman
--
jbowman@omm.com -- O'Melveny & Myers, LLP, Jennifer Christine Lee
-- jclee@orrick.com -- Orrick, Herrington & Sutcliffe & Richard A.
Jacobsen, Orrick Herrington & Sutcliffe, LLP, pro hac vice.
OOMA INC: De Minimis Settlement Reached in Reid Class Action
------------------------------------------------------------
Ooma, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on September 9, 2019, for the quarterly
period ended July 31, 2019, that the company and plaintiff Valentin
Reid have agreed to settle the class action suit. Reid is
obligated to dismiss the complaint with prejudice in accordance
with the terms of the settlement agreement.
On May 23, 2019, Reid filed a putative class action complaint (the
"Reid Litigation") against the Company in the U.S. District Court
for the Southern District of New York, alleging violations of the
Americans with Disabilities Act of 1990 (ADA), New York State Human
Rights Law, New York State Civil Rights Law, and New York City
Human Rights Law.
On August 28, 2019, the Company and plaintiff settled the complaint
for an immaterial amount.
Ooma, Inc. creates connected experiences for businesses and
consumers in the United States, Canada, and internationally. Ooma,
Inc. was incorporated in 2003 and is headquartered in Sunnyvale,
California.
OOMA INC: Settlement in Consolidated Suit Awaits Court Approval
---------------------------------------------------------------
Ooma, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on September 9, 2019, for the quarterly
period ended July 31, 2019, that the settlement in the consolidated
securities class action suit pending before the San Mateo County
Superior Court of the State of California is still pending.
On January 14, 2016, Michael Barnett filed a purported stockholder
class action in the San Mateo County Superior Court of the State of
California (Case No. CIV536959) against the Company, certain of its
officers and directors, and certain of the underwriters of the
Company's initial public offering (IPO) on July 17, 2015.
Since that time two additional purported class actions making
substantially the same allegations against the same defendants were
filed, and on May 18, 2016, all three complaints were combined into
a "consolidated complaint" filed in the same court (the "Securities
Litigation").
The consolidated complaint purports to be brought on behalf of all
persons who purchased shares of common stock in the Company's IPO
in reliance upon the Registration Statement and Prospectus the
Company filed with the Securities and Exchange Commission (SEC).
The consolidated complaint alleges that the Company and the other
defendants violated the Securities Act of 1933, as amended (the
"Securities Act") by issuing the Registration Statement and
Prospectus, which the plaintiffs allege contained material
misstatements and omissions in violation of Sections 11, 12(a)(2)
and 15 of the Securities Act.
The plaintiffs seek class certification, compensatory damages,
attorneys' fees and costs, rescission or a rescissory measure of
damages, equitable and/or injunctive relief, and such other relief
as the court may deem proper. On November 29, 2017, the Superior
Court dismissed the claims that were based on Sections 12(a)(2) and
15 of the Securities Act with prejudice.
On May 30, 2019, the parties filed with the Court a Stipulation of
Settlement. Under the terms of the proposed settlement, the
Company's directors' and officers' liability insurers will deposit
$8.65 million into a settlement fund for payment to class members,
plaintiff's attorneys' fees and costs of administering the
settlement. The proposed settlement must be approved by the Court
before becoming effective.
The Stipulation of Settlement contains no admissions of wrongdoing,
and the Company and the other defendants have maintained and
continue to deny liability and wrongdoing of any kind with respect
to the class action claims. If the Court grants final approval of
the Stipulation of Settlement, the Court will dismiss the class
action lawsuit with prejudice and the plaintiff will be deemed to
have released all claims against the Company and all other
defendants relating to the allegations in the class action. The
Company can provide no assurance that the Court will approve the
Stipulation of Settlement.
Ooma said, "Based on the Company's current knowledge, it believes
that if the settlement is approved, the amount of any further
probable loss to be paid by the Company will be immaterial."
No further updates were provided in the Company's SEC report.
Ooma, Inc. creates connected experiences for businesses and
consumers in the United States, Canada, and internationally. Ooma,
Inc. was incorporated in 2003 and is headquartered in Sunnyvale,
California.
PALMETTO CONSTRUCTION: Seeks to Hire Geist Law LLC as Attorney
--------------------------------------------------------------
Palmetto Construction Services LLC, seeks authority from the U.S.
Bankruptcy Court for the District of New Jersey to employ Geist Law
LLC, as counsel to the Debtor.
Palmetto Construction requires Geist Law LLC to represent and
provide legal services to the Debtor in the Chapter 11 bankruptcy
proceedings.
Geist Law LLC will be paid at the hourly rate of $200. The Firm
will be paid a retainer in the amount of $5,000. It will also be
reimbursed for reasonable out-of-pocket expenses incurred.
Jared A. Geist, partner of Geist Law LLC, assured the Court that
the firm is a "disinterested person" as the term is defined in
Section 101(14) of the Bankruptcy Code and does not represent any
interest adverse to the Debtor and its estates.
Geist Law LLC can be reached at:
Jared A. Geist, Esq.
GEIST LAW LLC
25 Main St., Suite 203
Hackensack, NJ 07601
Tel: (201) 870-1488
Fax: (201) 812 9659
E-mail: jared@geistlegal.com
About Palmetto Construction
Palmetto Construction Services, LLC, sought Chapter 11 protection
(Bankr. D.N.J. Case No. 19-21051) on May 31, 2019, estimating less
than $1 million in both assets and liabilities. Jared A. Geist,
Esq., at GEIST LAW LLC, is the Debtor's counsel.
PENNY LANE: Quinn et al. Seek Unpaid Wages for Caregivers
---------------------------------------------------------
PATRICK QUINN, an individual, and LESLIE JACKSON, an individual, On
Behalf of Themselves and All Others Similarly Situated and On
Behalf of the General Public as Private Attorneys General, the
Plaintiffs, v. PENNY LANE HOME HEALTH CARE INC., a California
Corporation; and DOES 1 through 250, the Defendants, Case No.
19STCV30420 (Cal. Super., Aug. 27, 2019), seeks to recover unpaid
wages under the California Labor Code.
Mr. Quinn and Ms. Jackson began working for Defendant on or about
December 1, 2018 and September 6, 2018 as a Care Giver/Care Taker,
respectively.
According to the complaint, the Defendant failed to pay Plaintiffs
and similarly aggrieved employees for all their wages due in a
timely manner. The Plaintiffs and other aggrieved employees were
made to wait several weeks for their wages due for the current pay
periods.
In addition, the Defendant failed to pay Plaintiffs and similarly
aggrieved employees an overtime rate for the overtime hours they
worked. Consequently, wage statements provided to Plaintiffs and
other aggrieved employees were inaccurate, the lawsuit says.
Penny Lane is in the Home Health Care Services business.[BN]
Attorneys for the Plaintiffs are:
Neama Rahmani, Esq.
Ronald L. Zambrano, Esq.
WEST COAST TRIAL LAWYERS, APLC
350 South Grand Avenue, Suite 3350
Los Angeles, CA 90071
Telephone: (213) 927-3700
Facsimile: (213) 927-3701
E-mail: ron@westcoasttriallawyers.com
Efilings@westcoasttriallawyers.com
PORTAGE COUNTY, WI: Class of Detainees Certified in Lieberman Suit
------------------------------------------------------------------
In the case, BRETT LIEBERMAN, individually and on behalf of all
others similarly situated, Plaintiff, v. PORTAGE COUNTY, MIKE
LUKAS, CORY NELSON, and DALE BOETTCHER, Defendants, and WISCONSIN
COUNTY MUTUAL INSURANCE CORPORATION, Intervenor-Defendant, Case No.
18-cv-450-jdp (W.D. Wis.), Judge James D. Peterson of the U.S.
District Court for the Western District of Wisconsin granted
Lieberman's motion for class certification.
The case is a proposed class action of inmates at Portage County
Jail whose attorney phone calls were recorded between 2012 and
2015. Judge Peterson concluded that Lieberman satisfied most of
the requirements in Federal Rule of Civil Procedure 23 for class
certification but stayed a decision to allow Lieberman to submit
evidence that class counsel have the necessary experience and
resources to litigate a class action. The Judge has reviewed the
supplemental materials submitted by the counsel, and is persuaded
that they can adequately represent the class. He will certify the
class.
Also before the Court is Lieberman's proposed class notice. The
JUdge has reviewed the notice and concludes that it contains all
the information required by Rule 23(c)(2)(B). The Defendants want
the notice to require class members who opt out to notify both the
class counsel and the Defendants, but the Defendants do not
identify a precedent for that request, which would place an
unnecessary burden on class members. Once the time for opting out
has expired, the class counsel will share all the opt-out notices
with the Defendants.
For these reasons, Judge Peterson granted Lieberman's motion for
class certification. He certified the class of all Portage County
Jail detainees whose phone calls to attorneys were recorded from
June 12, 2012, until the Jail's distribution of the Inmate
Orientation Booklet dated Nov. 24, 2015.
Steve Alan Hart, Brian Eldridge, and John Shannon Marrese of the
law firm Hart McLaughlin & Eldridge LLC are approved as the class
counsel.
The class counsel may have 30 days to identify, locate, and send
notices to the class. The notice should give the class members 45
days from the date of mailing to opt out of the class.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/vor9tS from Leagle.com.
Brett Lieberman, Individually and on behalf of all others
similarly
situated, Plaintiff, represented by Brian Howard Eldridge --
beldridge@hmelegal.com -- Hart McLaughlin & Eldridge, LLC, John
Shannon Marrese, Hart McLaughlin & Eldridge, LLC & Steven Alan
Hart, Hart McLaughlin & Eldridge, LLC, 22 W Washington St, Ste
1600, Chicago, IL 60602-1615
Portage County, Mike Lukas, Cory Nelson & Dale Boettcher,
Defendants, represented by Garrett Anthony Soberalski --
gas@mtfn.com -- Meissner Tierney Fisher & Nichols, S.C., Lori
Marie
Lubinsky -- llubinsky@axley.com -- Axley Brynelson, LLP, Michael
J.
Cohen -- mjc@mtfn.com -- Meissner Tierney Fisher & Nichols SC,
Michael J. Modl -- mmodl@axley.com -- Axley Brynelson, LLP &
Morgan
Kathleen Stippel -- mstippel@axley.com -- Axley Brynelson, LLP.
John Doe Portage County District Attorney's Office Personnel,
Defendant, represented by David C. Rice, Wisconsin Department of
Justice.
Wisconsin County Mutual Insurance Corporation, Intervenor,
represented by Thomas J. Donnelly -- tjd@ghnlawyers.com -- Grady,
Hayes & Neary, LLC.
QUALCOMM: Advocacy Groups Challenge Class Certification Appeal
--------------------------------------------------------------
Law360 reports that advocacy groups and academics have assailed
Qualcomm for trying to duck certification of an antitrust class
estimated at 250 million US consumers, telling the Ninth Circuit in
amicus briefs that the chipmaker was attempting to manufacture a
policy conflict among state antitrust laws to evade application of
California law to a national class. The American Antitrust
Institute on Aug. 9 filed one of four amicus briefs supporting
consumers against Qualcomm's appeal of class certification. [GN]
RENTECH INC: Oct. 10 Settlement Fairness Hearing Set
----------------------------------------------------
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
CHENG JIANGCHEN, Individually and on Behalf of
All Others Similarly Situated,
Plaintiff,
vs.
RENTECH, INC., KEITH B. FORMAN, and JEFFREY
SPAIN,
Defendants.
Case No. 2:17-cv-01490-GW-FFM
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED
SETTLEMENT; (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR
AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION
EXPENSES
TO:
All persons and entities who, during the period between March 15,
2016 and April 6, 2017, inclusive, purchased or otherwise acquired
common stock of Rentech, Inc. and were allegedly damaged thereby
(the "Settlement Class"):
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY
A CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District Court
for the Central District of California, that the above-captioned
litigation (the "Action") has been certified as a class action on
behalf of the Settlement Class, except for certain persons and
entities who are excluded from the Settlement Class by definition
as set forth in the full printed Notice of (I) Pendency of Class
Action and Proposed Settlement; (II) Settlement Fairness Hearing;
and (III) Motion for an Award of Attorneys' Fees, Reimbursement of
Litigation Expenses, and Request for Contribution Award to Lead
Plaintiff (the "Notice").
YOU ARE ALSO NOTIFIED that Lead Plaintiff in the Action has reached
a proposed settlement of the Action for $2,0500,000 in cash (the
"Settlement"), that, if approved, will resolve all claims in the
Action.
A hearing will be held on October 10, 2019 at 8:30 a.m., before the
Honorable George H. Wu, Courtroom 9D located at the United States
Courthouse, 350 West 1st Street, Los Angeles, CA 90012, to
determine (1) whether the proposed Settlement should be approved as
fair, reasonable, and adequate; (2) whether the Action should be
dismissed with prejudice against Defendants, and the Releases
specified and described in the Stipulation and Agreement of
Settlement dated May 17, 2019 (and in the Notice) should be
granted; (3) whether the proposed Plan of Allocation should be
approved as fair and reasonable; and (4) whether Lead Counsel's
application for an award of attorneys' fees and reimbursement of
Litigation Expenses and request for a contribution award for the
Lead Plaintiff should be approved.
If you are a member of the Settlement Class, your rights will be
affected by the pending Action and the Settlement, and you may be
entitled to share in the Settlement Fund. If you have not yet
received the Notice and Claim Form, you may obtain copies of these
documents by contacting the Claims Administrator at 877-307-6165.
Copies of the Notice and Claim Form can also be downloaded from the
website maintained by the Claims Administrator,
www.rentechsecuritieslitigation.com.
If you are a member of the Settlement Class, in order to be
eligible to receive a payment under the proposed Settlement, you
must submit a Claim Form postmarked no later than November 26,
2019. If you are a Settlement Class Member and do not submit a
proper Claim Form, you will not be eligible to share in the
distribution of the net proceeds of the Settlement but you will
nevertheless be bound by any judgments or orders entered by the
Court in the Action.
If you are a member of the Settlement Class and wish to exclude
yourself from the Settlement Class, you must submit a request for
exclusion such that it is received no later than September 19,
2019, in accordance with the instructions set forth in the Notice.
If you properly exclude yourself from the Settlement Class, you
will not be bound by any judgments or orders entered by the Court
in the Action and you will not be eligible to share in the proceeds
of the Settlement.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, or Lead Counsel's motion for attorneys' fees,
reimbursement of Litigation Expenses, and request for a
reimbursement for reasonable costs and expenses for the Lead
Plaintiff must be filed with the Court and delivered to Lead
Counsel and Defendants' Counsel such that they are received no
later than September 19, 2019, in accordance with the instructions
set forth in the Notice.
Please do not contact the Court, the Clerk's office, Rentech, Inc.,
Defendants, or their counsel regarding this notice. All questions
about this notice, the proposed Settlement, or your eligibility to
participate in the Settlement should be directed to Lead Counsel or
the Claims Administrator.
Inquiries, other than requests for the Notice and Claim Form,
should be made to Lead Counsel:
GLANCY PRONGAY & MURRAY LLP
Ex Kano S. Sams II, Esq.
1925 Century Park East, Suite 2100
Los Angeles, California 90067
(888) 773-9224
settlements@glancylaw.com [GN]
RHP PROPERTIES: Mass. App. Vacates Certification Denial in Layes
----------------------------------------------------------------
The Appeals Court of Massachusetts, Middlesex, issued an Opinion
vacating the District Court's judgment denying Plaintiffs' Motion
for Class Certification in the case captioned ROSA LAYES & another,
vs. RHP PROPERTIES, INC., & another. No. 18-P-218. (Mass. App.).
RHP Properties, Inc., a large owner and operator of manufactured
housing communities, has a nationwide policy requiring its
residents to pay for the maintenance, repair, and replacement of
their privately-owned, individually-metered fuel tanks. The Layeses
filed a complaint, alleging that the defendants' failure to
maintain, repair, and replace the exterior components of their home
heating system and those of the other residents of the CC park
violated the act, the Attorney General's regulations, and G. L. cc.
93A and 186. The defendants asserted counterclaims against the
Layeses, alleging negligence and liability under G. L. c. 21E for
the cleanup costs arising from the release of oil on the Layeses'
home site.
In Rosa's amended class action complaint, she sought the
certification of a class of 240 current and former Chelmsford
Commons residents who resided at the park at any time since April
22, 2011, and who heated their homes through oil-fueled systems.
Her amended class action complaint looked much like the Layeses'
original complaint. In it, she alleged that, since taking ownership
in 2011, the defendants had implemented an illegal policy affecting
all members of the class, requiring the residents to maintain,
repair, and replace the exterior components of their home heating
oil systems.
By the time the motion judge took up the motion for class
certification, another judge had already found that the Layeses
were entitled to judgment as matter of law on their individual c.
93A claims. However, the motion judge denied Rosa's motion for
class certification, concluding that she had failed to meet the
requirements of both c. 93A, Section 9(2), and rule 23.
Rosa appeals.
Here, the motion judge, adopting the earlier summary judgment
interpretation of the Attorney General's regulations, ruled that
the defendants were responsible for maintaining, removing, and
replacing the oil tanks. However, she concluded that, while the
defendants were subject to liability under G. L. c. 93A if they
require residents to pay for the removal or replacement of their
tanks, the defendants would not be liable to CC park residents as
to whom the defendants took no affirmative action with respect to
their tanks. To reach that conclusion, she reasoned that in order
to commit an unfair or deceptive act or practice under c. 93A, an
operator had to impose or enforce a rule or otherwise take action
that conflicts with the act, the Attorney General's regulations, or
other applicable law.
Applying this reasoning to the information submitted by Rosa, the
judge found that, to the extent that the class action claim arose
out of the enforcement of the lease provision, Rosa provided
evidence that the defendants had enforced it against only eighteen
households. A putative class of this few in number, in the judge's
view, failed to satisfy the numerosity requirement of G. L. c. 93A,
Section 9(2).
Next, the judge ruled that, absent some affirmative act, the mere
existence of the lease provision did not amount to the imposition
of a rule that violated 940 Code Mass. Regs. Sections 10.03(2)(n),
10.05(4)(d); and c. 93A. Finally, the judge questioned whether the
similar injury requirement could be met on a class-wide basis.
The judge's class certification analysis was flawed, and as a
result, remand is required to properly consider the class
certification calculus. To begin, the proposed class is
sufficiently numerous. The plaintiff has defined the class as those
current and former CC park residents, during a defined time period,
who heated their homes with a home heating oil system. This class
definition was appropriately definite. The class members could be
ascertained by objective criteria, and it is not contested that
there were 240 such park residents. It is the plaintiff's role to
define the proposed class in the first instance, and where the
proposed class is sufficiently definite, the judge ordinarily
should not redefine it for numerosity purposes.
Here, a class of 240 members is sufficiently numerous to qualify
for class treatment.
Accordingly, on remand the parties and the motion judge must
address the claimed injuries (if any) of the purported class
members; how the injuries are similar or different; and how they
might be proved. In determining whether a class should be
certified, the judge should keep in mind the principles, identified
above, favoring c. 93A classes where circumstances warrant. Here,
the c. 93A violation is common to the class. The fact that injury
or damages may vary across the class is not necessarily a bar to
class certification. Courts frequently have held that a class can
be certified despite differences in damages among class members.
General Laws c. 186, Section 14, certification request.
Rosa also asserts that a class should have been certified on the
Section 14 claim.45 This contention is governed by Mass. R. Civ. P.
23, and presents different issues from those arising under c. 93A.
For example, proof of liability involves different elements under
c. 186, Section 14, and c. 93A . Because the motion judge did not
address certification of the claim under c. 186, Section 14, remand
is required for this reason as well.
So much of the judgment as denied class certification is vacated,
and the question of class certification is remanded for further
proceedings consistent with this opinion.
A full-text copy of the Court of Appeals' August 28, 2019 Opinion
is available at https://tinyurl.com/y2bbl7sl from Leagle.com.
Ethan R. Horowitz -- ehorwitz@carltonfields.com -- for the
plaintiffs.
Trevor J. Keenan, Keenan Law, LLC, 787 Main Street, South
Glastonbury, CT 06073, for the defendants.
Maura Healey , Attorney General, & Daniel A. Less , Assistant
Attorney General, for the Attorney General, amicus curiae,
submitted a brief.
RISE MEDICAL: Court OKs A. Horn Class Action Settlement
-------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order granting Plaintiffs' Motion for
Preliminary Approval of Class Action Settlement in the case
captioned ANNETTE HORN, an individual on behalf of herself and
others similarly situated, Plaintiff, v. RISE MEDICAL STAFFING,
LLC; ADVANCED MEDICAL PERSONNEL SERVICES, INC.; and DOES 1 to 10
inclusive, Defendants. TEKARY WRIGHT and LISA DELGADO, individuals,
on behalf of themselves and on behalf of all persons similarly
situated, Plaintiff, v. ADVANCED MEDICAL PERSONNEL SERVICES, INC.;
RISE MEDICAL STAFFING, LLC; and DOES 1 through 50, Inclusive,
Defendants. Consolidated Case No. 2:17-cv-01967-MCE-KJN. (E.D.
Cal.).
Plaintiffs Annette Horn, Tekary Wright, and Lisa Delgado,
individually and on behalf of the proposed class, moved the Court
for an order granting preliminary approval of a class action
settlement of claims against defendants Rise Medical Staffing, LLC
and Advanced Medical Personnel Services, Inc.
The Court preliminarily finds that the terms of the Class Action
Settlement Agreement (Settlement) are fair, reasonable, and
adequate, and comply with Rule 23(e) of the Federal Rules of Civil
Procedure.2. The following proposed class (Settlement Class) is
conditionally certified for purposes of the Settlement only: All
non-exempt hourly healthcare professionals employed by Rise Medical
Staffing, LLC and/or Advanced Medical Personnel Services, Inc. to
work one or more assignments in California from September 21, 2013
through February 28, 2018 who received overtime pay and had the
value of per diem benefits and/or monetary bonuses received during
the assignment(s) excluded from their regular rate for purposes of
calculating overtime pay.
The Court appoints Plaintiffs as the representative of the
Settlement Class.
The Court appoints ILYM Group, Inc. as the settlement
administrator, preliminarily approves settlement administration
costs of up to $20,000, and, in accordance with the Settlement,
directs the settlement administrator to complete dissemination of
the notice of settlement within 30 days of entry of this Order.
A full-text copy of the District Court's August 28, 2019 Order is
available at https://tinyurl.com/y2fsmbov from Leagle.com.
Annette Horn, Plaintiff, represented by Kye Douglas Pawlenko --
kpawlenko@helpcounsel.com -- Hayes, Pawlenko, LLP & Matthew Bryan
Hayes -- mhayes@helpcounsel.com -- Hayes Pawlenko LLP.
Tekary Wright, Plaintiff, represented by Aparajit Bhowmik --
aj@bamlawlj.com -- Blumenthal, Nordrehaug & Bhowmik, Kyle R.
Nordrehaug -- kyle@bamlawlj.com -- Blumenthal Nordrehaug and
Bhowmik & Norman Blumenthal -- norm@bamlawlj.com -- Blumenthal
Nordrehaug & Bhowmik, LLP.
Rise Medical Staffing, LLC, Defendant, represented by Kenneth
Dawson Sulzer -- ksulzer@constangy.com -- Constangy Brooks Smith &
Prophete LLP, Sarah Kroll-Rosenbaum --
skroll-rosenbaum@constangy.com -- Constangy Brooks Smith & Prophete
& Sayaka Karitani -- skaritani@constangy.com -- Constangy Brooks
Smith & Prophete, LLP.
Advanced Medical Personnel Services, Inc., Defendant, represented
by Sarah Kroll-Rosenbaum, Constangy Brooks Smith & Prophete &
Sayaka Karitani, Constangy Brooks Smith & Prophete, LLP.
ROSS STORES: Settlement in Jacobo Fraud Suit Has Final Approval
---------------------------------------------------------------
In the case, JOSE JACOBO, et al., Plaintiffs, v. ROSS STORES, INC.,
et al., Defendants, Case No. 2:15-cv-04701-MWF-AGRx (C.D. Cal.),
Judge Michael W. Fitzgerald of the U.S. District Court for the
Central District of California granted (i) the Plaintiffs' Motion
for Final Approval of Class Action Settlement, and (ii) the
Plaintiffs' Motion for Attorneys' Fees and Costs, Costs of
Administration, and Representative Enhancement Payments.
For the reasons stated in the Order Granting Plaintiffs' Motion for
Preliminary Approval of Class Action Settlement and Certification
of Settlement Class, Judge Fitzgerald finds that the action meets
all the requirements for class certification, and finally approved
the Settlement Class and certified as a class for purposes of
settlement of the action. He granted the Parties' Settlement
Agreement ("SA") final approval as it meets the criteria for final
settlement approval.
CPT is awarded $630,250 for their services as Settlement
Administrator, pursuant to the terms set forth in the SA. Class
Representatives Jacobo and Theresa Metoyer are each awarded the sum
of $5,000 as a Class Representative Enhancement Payment pursuant to
the terms set forth in the SA. The Class Counsel is awarded
$1,213,500, as attorneys' fees, and $19,750 as costs, pursuant to
the terms set forth in the SA.
By means of the Final Order and Judgment, the Judge entered Final
Judgment in the action, as defined in Rule 54, Federal Rules of
Civil Procedure. He dismissed the action with prejudice, each side
to bear its own costs and attorneys' fees except as provided by the
SA and the Final Order and Judgment.
A full-text copy of the Court's Aug. 6, 2019 Order and Judgment is
available at https://is.gd/n9pM5g from Leagle.com.
Jose Jacobo, an individual, individually and on behalf of all
others similarly situated & Theresa Metoyer, Plaintiffs,
represented by Douglas Caiafa -- dcaiafa@caiafalaw.com -- Douglas
Caiafa APLC & Christopher J. Morosoff -- cjmorosoff@morosofflaw.com
-- Law Offices of Christopher J. Morosoff.
Ross Stores, Inc., a Delaware Corporation, Defendant, represented
by Matthew James Cave -- mcave@mofo.com -- Morrison & Foerster LLP
& David F. McDowell -- dmcdowell@mofo.com -- Morrison and Foerster
LLP.
RUSHMORE LOAN: Court Dismisses Paciti FDCPA Suit
------------------------------------------------
The United States District Court for the District of New Jersey
issued an Opinion granting Defendant's Motion to Dismiss in the
case captioned FRANK C. RACITI, DARLENE A. RACITI, individually and
on behalf of all others similarly situated, Plaintiffs, v. RUSHMORE
LOAN MANAGEMENT SERVICES, LLC, Defendant. Civil Action No. 18-14869
(FLW) (LHG). (D.N.J.).
Plaintiffs Frank C. Raciti and Darlene A. Raciti filed a complaint,
individually and on behalf of putative class members, wherein they
allege that Rushmore misrepresented the legal status of Plaintiffs'
debt by seeking to collect payments on a mortgage that had been
discharged in bankruptcy, in violation of the Fair Debt Collection
Practices Act (FDCPA) and the Fair Credit Reporting Act (FCRA).
Rushmore moves to dismiss Plaintiffs' Complaint in its entirety and
moves to strike Plaintiffs' class action allegations. Rushmore
argues that it is not a debt collector under the FDCPA because
Plaintiffs have not sufficiently alleged that Rushmore's principal
purpose is debt collection for another entity. In addition,
Rushmore contends that because it had a credit transaction
relationship with Plaintiffs, it had a permissible purpose for
obtaining credit information under 15 U.S.C. Section
1681b(a)(3)(A)-(F).
The FDCPA
Rushmore moves to dismiss Plaintiffs' FDCPA claims on the basis
that it does not satisfy the statutory definition of a debt
collector. Rushmore argues that Plaintiffs merely claim that
Rushmore is a debt collector under the FDCPA but do not
sufficiently allege facts to support that claim.
Congress crafted a distinction between such debt collectors and
creditors to reflect the real difference in incentives between
collection actions taken by the actual owner of a debt and those
undertaken by one who merely collects on behalf of others.
The FDCPA defines a creditor as: any person who offers or extends
credit creating a debt or to whom a debt is owed, but such term
does not include any person to the extent that he receives an
assignment or transfer of a debt in default solely for the purpose
of facilitating collection of such debt for another.
Here, Plaintiffs maintain that Rushmore is a debt collector under
only the regularly collects definition of the term, and that it
violated the FDCPA by misrepresenting the legal status of
Plaintiffs' debt when it sought to collect payments on a mortgage
that had been discharged in bankruptcy. However, Plaintiffs allege
nothing more regarding Rushmore's status as a debt collector than
that Rushmore is a residential mortgage servicer and a debt
collector under the FDCPA. These allegations are plainly
insufficient to adequately plead that Rushmore regularly collects"
debts owed to another.
Indeed, although Rushmore is a mortgage loan servicer and not the
loan originator, servicers can and do collect on debts for their
own accounts. Thus, where, as here, a plaintiff fails to adequately
allege that a servicer regularly collects debts for another, the
statutory provisions of the FDCPA will not capture the servicer's
actions. As such, Plaintiffs have not sufficiently alleged that
Rushmore is a debt collector, and dismissal of Counts One, Two, and
Three is appropriate.
The FCRA
Plaintiffs allege that Rushmore violated the FCRA by impermissibly
accessing Mr. Raciti's credit information.
In pleading the FCRA claim, Plaintiffs cite three provisions of the
FCRA: 15 U.S.C. Section 1681b(a), governing the circumstances under
which a consumer reporting agency may furnish consumer reports; 15
U.S.C. Section 1681a(d), defining a consumer report; and 15 U.S.C.
Section 1681n, providing civil damages for willful noncompliance.
Plaintiffs' FCRA claim is premised on the allegation that,
post-discharge, Plaintiffs did not have a credit relationship or
account with Rushmore.
Plaintiffs allege that Rushmore did not have a permissible purpose
in accessing Mr. Raciti's credit report because the debt on the
account was discharged in bankruptcy. Rushmore argues, however,
that while Plaintiffs have no personal liability on the secured
lien following the bankruptcy discharge, Rushmore's continuing in
rem rights and ability to collect the debt through its collateral
the property continued to exist, creating a credit relationship and
account, albeit without Plaintiffs' in personam liability.
Congress enacted the FCRA, 15 U.S.C. Section 1681 et seq. to
prevent consumers from being unjustly damaged because of inaccurate
or arbitrary information in a credit report.
Here, although Plaintiffs are not personally liable for the
discharged mortgage loan, Rushmore's in rem right to the loan is a
collectable debt, and thus, establishes a legitimate business need
for the credit pull. Under the Bankruptcy Act of 1898, a lien on
real property passes through bankruptcy unaffected. Thus, a
discharge of a plaintiff's personal liability does not constitute
the complete termination of an entity's claim against that
plaintiff. Rather, a bankruptcy discharge extinguishes only one
mode of enforcing a claim namely, an action against the debtor in
personam while leaving intact another -- namely, an action against
the debtor in rem.
Indeed, Rushmore's in rem claim gives rise to the right to
foreclose, which implies that Plaintiffs' obligation, which
remained after the Chapter 7 discharge of the in personam
liability, is a debt. Accordingly, Plaintiffs have the choice to
either lose their property or pay the full amount of the in rem
claim. Because Rushmore's in rem claim for the amount due under
Plaintiffs' discharged mortgage constitutes an enforceable debt
owed by Plaintiffs, Rushmore had a legitimate credit relationship
with Plaintiffs and satisfied the statutory legitimate business
need under 15 U.S.C. Section 1681(b).
Therefore, Rushmore's credit pull was permissible and Plaintiffs'
FCRA claim (Count Four) is dismissed.
Negligent Infliction of Emotional Distress
Plaintiffs claim that Rushmore has inflicted emotional distress on
Plaintiffs by continuing to harass them and using unfair means to
collect a debt that it did not have a legal right to collect. This
claim also fails as a matter of law.
A plaintiff must show the following four elements to prevail on a
claim for negligent infliction of emotional distress under New
Jersey law: The following elements are required for Plaintiff to
show a prima facie claim of negligent infliction of emotional
distress: (1) the defendant had a duty of reasonable care to the
plaintiff (2) the defendant breached said duty (3) the plaintiff
suffered severe emotional distress and (4) the breach proximately
caused the plaintiff's injury. Plaintiffs' claimed emotional
distress must be sufficiently substantial to result in physical
illness or serious psychological sequelae.
Here, aside from the conclusory statement that Plaintiffs have
suffered emotional distress caused by Defendant's unlawful behavior
and violations of the FDCPA and FCRA, the Complaint contains no
allegations at all regarding Plaintiffs' alleged emotional
distress. Therefore, Plaintiffs have failed to sufficiently allege
that they suffered severe emotional distress from Rushmore's
communications regarding the discharged mortgage.
Count Six of Plaintiffs' Complaint is dismissed.
Declaratory Judgment
Plaintiffs seek a declaratory judgment finding that Rushmore's
conduct violated the FDCPA and the discharge. Further, Plaintiffs
claim that Rushmore should be enjoined from collecting or seeking
to collect debts previously discharged in bankruptcy. However,
having dismissed Plaintiffs' substantive claims, the Court need not
separately address Plaintiffs' request for declaratory relief.
Therefore, in light of the dismissal of the substantive claims,
Plaintiffs' request for declaratory relief is denied.
Accordingly, the Court grants Rushmore's motion to dismiss.
A full-text copy of the District Court's August 28, 2019 Opinion is
available at https://tinyurl.com/y26p4guz from Leagle.com.
FRANK C. RACITI, individually and on behalf of all others similarly
situated & DARLYNE A. RACITI, individually and on behalf of all
others similarly situated, Plaintiffs, represented by SUBHAN TARIQ,
THE TARIQ LAW FIRM, The Tariq Law Firm, PLLC, 68 Jay St Ste 201,
Brooklyn, NY, 11201-8359
RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Defendant, represented by
AILEEN E. MCTIERNAN -- aileen.mctiernan@lockelord.com -- LOCKE LORD
LLP.
SAN JUAN, PUERTO RICO: Court Denies Bid for Class Certification
---------------------------------------------------------------
In the class action lawsuit styled as Minerva Sanchez-Rosa, et al.,
the Plaintiffs, vs. Municipality of San Juan, et al., the
Defendants, Case No. 3:18-cv-01558-RAM-SCC (DPR), the Hon. Judge
Raul M. Arias-Marxuach entered an order on Sept. 4, 2019, denying
Plaintiff's:
1. Memorandum in Support of Motion to Conditionally Certify
a Collective Action and Facilitate Notice Pursuant to
29 U.S.C. section 216(B);
2. Supplement to Motion to Conditionally Certify A Collective
Action and Facilitate Notice Pursuant to 29 U.S.C. section
216(B); and
3. Motion Renewing Motion Asking the Court Conditionally
Certify This Collective Action.[CC]
SANDALS RESORTS: Briefing on McCoy Suit Dismissal Bid Partly Stayed
-------------------------------------------------------------------
In the case, MICHAEL McCOY, on his own behalf and on behalf of all
others similarly situated, Plaintiff, v. SANDALS RESORTS
INTERNATIONAL, LTD., d/b/a Sandals, and UNIQUE VACATIONS, INC.
d/b/a Unique Vacations. Defendants, Case No.
19-cv-22462-BLOOM/Louis (S.D. Fla.), Judge Beth Bloom of the U.S.
District Court for the Southern District of Florida (i) granted in
part Defendants Sandals Resorts International, Ltd. ("SRI") and
Unique Vacations, Inc. ("UVI")'s Motion to Stay Briefing on SRI's
Motion to Dismiss, and (ii) denied without prejudice Plaintiff
McCoy's Renewed Motion for Leave to Conduct Jurisdictional
Discovery and to Stay Briefing on SRI's Motion to Dismiss.
The Plaintiff filed the putative class action on June 13, 2019. He
asserts two claims for violation of Florida's Deceptive and Unfair
Trade Practices Act ("FDUTPA") and a claim for unjust enrichment
against the Defendants for allegedly charging guests at Sandals
resorts throughout the Caribbean a local government "tax" that the
Defendants secretly retained.
On July 8, 2019, both UVI and SRI filed separate motions to
dismiss. UVI's motion asserts five independent bases for
dismissal. First, UVI argues that the Complaint should be
dismissed under the doctrine of forum non conveniens because the
Plaintiff agreed to a binding forum selection clause requiring that
he litigate the action in the Turks & Caicos Islands. UVI's motion
also seeks dismissal for (1) failure to plead fraud-based claims
with particularity; (2) lack of Article III standing; (3) failure
to state a FDUTPA claim because the Complaint does not allege
Florida misconduct or actual damages; and (4) failure to state an
unjust enrichment claim because it is impermissibly duplicative of
the FDUTPA claim and based on an express contract.
SRI's motion adopts each ground for dismissal asserted by UVI and
also argues that the Court lacks both general jurisdiction and
specific jurisdiction with respect to SRI and that the claims
against SRI should be dismissed for insufficient service of
process.
Turning to the instant motions before the Court, the Defendants
request that the Court stays briefing on SRI's Motion to Dismiss
pending resolution of UVI's Motion to Dismiss. The Defendants
argue that staying briefing on SRI's Motion to Dismiss for Lack of
Personal Jurisdiction until resolution of UVI's Motion to Dismiss
on non-jurisdictional grounds is the approach best designed to
promote efficiency and ensure that the discovery process does not
unduly burden the parties.
The Plaintiff counters that the stay the Defendants request is
unwarranted because UVI's Motion to Dismiss, including its forum
non conveniens arguments, lacks merit. He requests instead that
the Court allows him to conduct jurisdictional discovery for 90
days before he is required to respond to SRI's Motion to Dismiss.
The Plaintiff contends that it is entitled to limited
jurisdictional discovery to establish personal jurisdiction over
SRI.
Under appropriate conditions, a court should consider dismissal on
forum non conveniens grounds without first determining whether
personal jurisdiction is proper or, consequentially, requiring the
parties to engage in related jurisdictional discovery. As the
Supreme Court explained:
Judge Bloom concludes that the less burdensome course is for the
Court to first resolve the Defendants' forum non conveniens
arguments asserted in UVI's Motion to Dismiss and adopted by SRI in
its Motion to Dismiss. At this stage, she is unpersuaded by the
Plaintiff's contention that the forum non conveniens arguments do
not weigh heavily in favor of dismissal. The Plaintiff states that
the forum selection clause UVI relies upon is limited to claims
arising from `personal injury, illness or death and concerns
conduct and events that occur during the guests stay at a resort.
Subject to further briefing on the issue, the Judge is
unconvinced.
Additionally, the parties agree that no jurisdictional discovery is
necessary to resolve UVI's Motion to Dismiss in its entirety. As
such, in ruling on the Defendants' forum non conveniens arguments
the Court will equally consider the four other grounds for
dismissal raised in UVI's Motion to Dismiss and adopted by SRI
(failure to plead fraud-based claims with particularity, lack of
Article III standing, failure to state a FDUTPA claim, and failure
to state an unjust enrichment claim). Accordingly, briefing on the
issues of personal jurisdiction and insufficient service of process
raised in SRI's motion to dismiss will be stayed pending a ruling
on the five grounds for dismissal asserted in UVI's Motion to
Dismiss and adopted by SRI.
Because the Judge's ruling on UVI's Motion to Dismiss, and SRI's
adoption of the arguments contained therein, may be dispositive and
thereby obviate the need for a determination of personal
jurisdiction as to SRI, the Plaintiff's request to conduct
jurisdictional discovery is denied without prejudice. The
Plaintiff may renew its request to conduct jurisdictional discovery
at the appropriate time should its claims against SRI survive the
Court's ruling on the portion of SRI's Motion to Dismiss which
adopts each ground for dismissal asserted by UVI.
Accordingly, Judge Bloom (i) granted in part the Defendants' Motion
to Stay Briefing on SRI's Motion to Dismiss, and (ii) denied
without prejudice the Plaintiff's Renewed Motion for Leave to
Conduct Jurisdictional Discovery and to Stay Briefing on SRI's
Motion to Dismiss. The Plaintiff will file a response to UVI's
Motion to Dismiss by Aug. 15, 2019. He will also file by the same
date a response to the portions of SRI's Motion to Dismiss, which
adopts the five grounds for dismissal raised in UVI's Motion to
Dismiss. The Defendants will file their respective replies in
support of their respective Motions to Dismiss in accordance with
Local Rule 7.1 (c)(1).
A full-text copy of the Court's Aug. 2, 2019 Omnibus Order is
available at https://is.gd/3YQF5K from Leagle.com.
MICHAEL MCCOY, on his own behalf and on behalf of all others
similarly situated, Plaintiff, represented by Adam Abraham
Schwartzbaum, The Moskowitz Law Firm, Daniel Wayne Grammes --
dgrammes@lipcon.com -- Lipcon, Margulies, Alsina, and Winkleman,
P.A., Howard Mitchell Bushman -- howard@moskowitz-law.com -- The
Moskowitz Law Firm, PLLC, Jason Robert Margulies --
crewlawyer@aol.com -- Lipcon Margulies, Alsina & Winkleman, P.A.,
Joseph M. Kaye, The Moskowitz Law Firm, PLLC, Marc E. Weiner --
mweiner@lipcon.com -- Lipcon, Margulies, Alsina, Winkleman, P.A.,
Michael A. Winkleman -- mwinkleman@lipcon.com -- Lipcon Margulies
Alsina & Winkleman & Adam M. Moskowitz, The Moskowitz Law Firm,
PLLC.
Sandals Resorts International LTD, doing business as Sandals,
Defendant, represented by Claudia Ojeda -- ojedac@gtlaw.com --
GREENBERG TRAURIG, James Evans Gillenwater --
gillenwaterj@gtlaw.com -- Greenberg Traurig LP, Mark Allan Salky --
salkym@gtlaw.com -- Greenberg Traurig & Thomas E. Scott, Jr. --
thomas.scott@csklegal.com -- Cole Scott & Kissane.
Unique Vacations Inc., doing business as Unique Vacations,
Defendant, represented by Claudia Ojeda, GREENBERG TRAURIG, James
Evans Gillenwater, Greenberg Traurig LP & Mark Allan Salky,
Greenberg Traurig.
SANTA BARBARA TRANSPORTATION: Diaz Suit Goes to C.D. California
---------------------------------------------------------------
The case captioned as Jose L Diaz, on his own behalf and on behalf
of all others similarly situated, the Plaintiff, vs. Santa Barbara
Transportation Corporation, and Does 1 through 100, inclusive, the
Defendants, Case No. CIVDS1920120, was removed from the San
Bernardino County Superior Court to the Central District of
California (Eastern Division – Riverside) to United States
District Court for the Central District of California (Eastern
Division - Riverside) on Aug 26, 2019. The Central District of
California Court Clerk assigned Case No. 5:19-cv-01638-VAP-SP to
the proceeding. The suit alleges violation of the Fair Credit
Reporting Act. The case is assigned to the Hon. Judge Virginia A.
Phillips.
The Plaintiff is Represented by:
Marcus J. Bradley, Esq.
Kiley Lynn Grombacher, Esq.
Taylor L Emerson, Esq.
BRADLEY GROMBACHER LLP
2815 Townsgate Road Suite 130
Westlake Village, CA 91361
Telephone: (805) 270-7100
Facsimile: (805) 270-7589
E-mail: mbradley@bradleygrombacher.com
kgrombacher@bradleygrombacher.com
temerson@bradleygrombacher.com
- and -
Sahag Majarian II, Esq.
LAW OFFICES OF SAHAG MAJARIAN II
18250 Ventura Boulevard
Tarzana, CA 91356
Telephone: (818) 609-0807
Facsimile: (818) 609-0892
E-mail: sahagii@aol.com
The Defendant is Represented by:
Kathleen J Choi, Esq.
Kristin N Kovacich, Esq.
OGLETREE DEAKINS NASH
SMOAK AND STEWART PC
400 South Hope Street Suite 1200
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
E-mail: kathleen.choi@ogletreedeakins.com
kristin.kovacich@ogletree.com
SCHELL & KAMPETER: 3rd Amended Classick Suit Dismissed w/ Prejudice
-------------------------------------------------------------------
In the case, RICHARD DAVID CLASSICK, JR., individually and on
behalf of all others similarly situated, Plaintiffs, v. SCHELL &
KAMPETER, INC. d/b/a DIAMOND PET FOODS, and DIAMOND PET FOODS INC.,
Defendants, Case No. 2:18-cv-02344-JAM-AC (E.D. Cal.), Judge John
A. Mendez of the U.S. District Court for the Eastern District of
California granted the Defendants' motion to dismiss the
Plaintiff's claims in his Third Amended Complaint ("TAC") for
equitable relief.
The Plaintiff brings the putative class action against the
Defendants for damages sustained from purchasing, or overpaying to
purchase, dog food allegedly containing undisclosed levels of heavy
metals, BPA, pesticides, plasticizers, acrylamides, and other
contaminants.
In its order granting in part and denying in part the Defendants'
Motion to Dismiss Plaintiffs' Second Amended Complaint, the Court
dismissed the Plaintiff's claims for equitable relief, with leave
to amend. Accordingly, on April 9, 2019, Mr. Classick, the sole
remaining named Plaintiff, filed the TAC.
The Defendants move to dismiss the repleaded claims for equitable
relief. The Plaintiff opposes the motion.
Judge Mendez finds that Mr. Classick has failed to remedy the
errors in pleading his claims for equitable relief. It is a basic
doctrine of equity jurisprudence that courts of equity should not
act when the moving party has an adequate remedy at law and will
not suffer irreparable injury if denied equitable relief. The TAC
contains no allegation that Mr. Classick's remedies at law are
inadequate, nor an allegation that he will suffer irreparable
harm.
A pleading may seek, under alternative theories, both monetary
relief and equitable relief. Fed. R. Civ. P. 8(d). However, Mr.
Classick does not plead his theories of relief, which rely upon the
same factual predicates, as alternatives. Thus, the Plaintiff's
claims for equitable relief are dismissed. Given this threshold
failure to meet the pleading standard, the Judge need not address
the secondary issue of whether the claim for injunctive relief in
particular is properly pleaded.
For the reasons set forth, Judge Mendez granted the Defendants'
Motion to Dismiss. Leave to amend having been previously granted,
the Plaintiff's claims for equitable relief, which he seeks under
the CLRA, FAL, UCL, and as a general demand in the prayer for
relief, are dismissed with prejudice.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/5rcrOv from Leagle.com.
Richard David Classick, Jr., Plaintiff, represented by Rebecca A.
Peterson -- rapeterson@locklaw.com -- Lockridge Grindal Nauen
P.L.L.P., Robert K. Shelquist -- rkshelquist@locklaw.com --
Lockridge Grindal Nauen P.L.L.P. & Steven M. McKany --
smckany@robbinsarroyo.com -- Robbins Arroyo LLP.
Schell & Kampeter, Inc., also known as Diamond Pet Foods & Diamond
Pet Foods Inc., Defendants, represented by Amir M. Nassihi --
anassihi@shb.com -- Shook, Hardy & Bacon L.L.P., Emily M.
Weissenberger, Shook Hardy & Bacon & Steven D. Soden, Shook, Hardy
and Bacon L.L.P, 111 S. Wacker Dr., Suite 4700, Chicago, IL 60606,
pro hac vice.
SCHMIDT PAINTING: Santos Seeks OT Pay for Building Painters
-----------------------------------------------------------
DARWIN ROMERO SANTOS, on behalf of himself, individually, and all
other persons similarly situated, thev Plaintiff, vs. SCHMIDT
PAINTING INC. and GARY SCHMIDT, individually, the Defendants, Case
No. 2:19-cv-05033 (E.D.N.Y., Sept. 4, 2019), seeks to recover
unpaid overtime wages and unpaid tips and gratuities under the Fair
Labor and the New York Labor Law.
The Defendants' employees, including Plaintiff, performed services
throughout Long Island, New York. The Defendants employed Plaintiff
Romero as a non-exempt painter from in or about September 2016
through on or about August 9, 2018. Throughout his employment,
Plaintiff Romero was responsible primarily for painting both
residential and commercial properties.
The Plaintiff regularly worked six days per week on Mondays through
Friday from approximately 7:40 a.m. until between 5:00 p.m. to 6:00
p.m., or sometimes even later, and on Saturday from approximately
7:40 a.m. until approximately 2:30 p.m. Accordingly, Defendants
required Plaintiff to work -- and Plaintiff did regularly work --
between 53 hours and 10 minutes and 58 hours and 10 minutes during
each workweek, and sometimes even more hours each workweek.
Despite doing so, the Defendants failed to pay Plaintiff for all of
his hours worked each workweek, instead failing to pay him at any
rate of pay for many hours of work each week. Thus, due to
Defendants' practice of failing to compensate Plaintiff for all
hours worked, Defendants have deprived Plaintiff of compensation
for many hours at his regular or overtime rates of pay, or at his
agreed upon rates of pay, during each workweek, the lawsuit says.
The Defendants provide a variety of services, including interior
and exterior painting, wallpaper removal, power washing external
surfaces, acid washing, spackling and plaster services, wood
staining, faux finishes and cabinet refurbishing.[BN]
Attorneys for the Plaintiff are:
David D. Barnhorn, Esq.
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
825 Veterans Highway, Suite B
Hauppauge, NY 11788
Telephone: (631) 257-5588
SEATTLE, WA: Court OKs Settlement in Keck Suit
----------------------------------------------
The United States District Court for the Western District of
Washington, Seattle, issued an Order granting Joint Motion for
Approval of Settlement Agreement BRADLEY A. KECK, MICHAEL R.
JEPPESEN and HERBERT W. WILSON, Plaintiffs, v. THE CITY OF SEATTLE,
Defendant. Case No. 2:18-CV-1146. (W.D. Wash.).
Plaintiffs filed a complaint against the City of Seattle. The
parties participated in a mediation on July 22, 2019 and reached a
settlement.
This Court has previously held that the Court's responsibility to
review a proposed class action settlement to determine whether the
settlement is fundamentally fair, adequate, and reasonable does not
extend to the context of individual settlement agreements, where
each plaintiff may be consulted individually so as to vindicate her
particular interests. However, the Court makes an exception here
because the defendant is a government entity. The Court finds that
the settlement is fair, adequate, and reasonable.
The parties' joint motion is GRANTED.
A full-text copy of the District Court’s August 28, 2019 Order is
available at https://tinyurl.com/y2hoenun from Leagle.com
Bradley A Keck, Michael R Jeppesen & Herbert W Wilson, Plaintiffs,
represented by Reba Weiss, WEISS LAW FIRM PLLC, 1416 NW 46th St.,
Suite 301, Seattle, WA 98107, Stephen A. Teller, TELLER AND
ASSOCIATES PLLC & Sara B. Amies, TELLER AND ASSOCIATES PLLC, 1139
34th Ave, Seattle, WA 98122
City of Seattle, a Washington state municipality, Defendant,
represented by Molly Margaret Daily, SEATTLE CITY ATTORNEY'S OFFICE
& Rachel Seals, SEATTLE CITY ATTORNEY'S OFFICE.
SEIU LOCAL 669: Gov't Worker Files Class Action Over Union Fees
---------------------------------------------------------------
Jan Murphy, writing for PennLive, reports that a state Department
of Human Services income maintenance supervisor filed a federal
class action lawsuit against a large state government employee
union seeking to reclaim the union fees she and more than 2,000
other non-union commonwealth social service employees were forced
to pay.
In the lawsuit filed on Aug. 7 in U.S. Middle District Court,
Catherine Kioussis of York County is seeking to recoup for herself
and others what could amount to more than $1 million in union fees
paid to the Service Employees International Union Local 668 in 2017
and 2018.
The seven-page lawsuit arises out of the U.S. Supreme Court ruling
from June 2018 that found the practice of forcing government
employees who chose not to join a government union to pay a "fair
share fee" to a union was unconstitutional.
Kioussis, who has worked for the state since 2008, and others are
demanding a refund of the money "illegally taken from them" as far
back as the statute of limitations allows, which in this case is
two years, said Brian Kelsey, a lawyer with the Chicago-based
Liberty Justice Center.
The center and the National Right to Work Legal Defense Foundation
that are representing Kioussis also represented the former child
support specialist from Illinois named Mark Janus who successfully
sued AFSCME in the landmark 2018 Supreme Court case that outlawed
the union practice of charging non-union members a fair share fee.
SEIU Local 669 President Steve Catanese said the union remains
confident it will prevail in court in this case.
"The Liberty Justice Center, along with other anti-union
organizations such as the Fairness Center, is being funded by
millions of dollars in dark money donations from billionaires and
corporations. The sole purpose of these organizations and
investments in them is to file frivolous litigation against labor
unions and undermine the ability of workers to have a voice at the
workplace," he said in an emailed statement.
"Despite these organizations' best efforts, our focus remains on
continuing to fight for the workers that are a part of our union
and for a better Pennsylvania."
Kelsey estimates between 2,000 and 3,500 employees may be covered
by this lawsuit. Using the $450 a year that Kioussis said she was
forced to pay to SEIU Local 668 in fair share fees is how lawyers
arrived at the roughly $1 million, at a minimum, in damages they
seek.
"It's unfortunate her constitutional rights were violated," Kelsey
said. "We're going to make sure she can get her money back now, or
at least as much as we can gather that she paid over the last
couple of years."
If the court agrees to certify other eligible employees who paid
fees to SEIU Local 668 as a class, Kelsey said they will receive a
notice in the mail.
This is the third class-action lawsuit filed by the Liberty Justice
Center on behalf of government employees since the Janus decision.
The others were filed in Illinois and New York but Kelsey
anticipates more cases like it will be filed in the other 19
non-Right to Work states. [GN]
SETERUS INC: Court Dismisses Barilla FDCPA Suit
-----------------------------------------------
The United States District Court for the Middle District of
Florida, Fort Myers Division, issued an Opinion and Order granting
Defendants Seterus, Inc. and Nationstar Mortgage LLC's Motion to
Dismiss Second Amended Complaint in the case captioned NICOLE
BARILLA, LOIS KERR and CHARLES McDONALD, on behalf of themselves
and others similarly situated Plaintiffs, v. SETERUS, INC. and
NATIONSTAR MORTGAGE LLC, Defendants. Case No. 2:19-cv-46-FtM-38NPM.
(M.D. Fla.).
Plaintiffs fell behind on mortgage payments and defaulted. Once
Plaintiffs defaulted, Defendants sent them form letters demanding
that they get current. The letters each listed the default amount,
provided a deadline of 36 days to cure the default, and specified
consequences for failure to cure (Florida Final Letters).
Plaintiffs allegedDefendants violated federal and Florida debt
collection law and committed negligent misrepresentation (Counts
I-III).
The FDCPA Claims (Count I)
Count I alleges that the letters' empty threats violated 15 U.S.C.
Sections 1692e and 1692f of the Fair Debt Collection Practices Act
(FDCPA) because they threatened action not intended to be taken,
used false representations to collect a debt and used unfair or
unconscionable means to collect the debts.
Defendants argue that they had a legal right to threaten
foreclosure, that they did intend to foreclose under some
circumstances, that they made no material misrepresentations, and
that Plaintiffs fail to differentiate between Section 1692e
allegations and Section 1692f allegations. Plaintiffs parry,
arguing that the plain language of the letters refutes Defendants'
argument, that the misrepresentations were manifestly material, and
that the alleged conduct is unfair or unconscionable in addition to
being false or misleading.
Convincing as Plaintiffs' arguments may be, the Court must dismiss
Count I because it is a shotgun pleading.
The FCCPA Claims (Count II)
Count II alleges that Defendants violated the Florida Consumer
Collection Practices Act, Fla. Stat. Section 559.72 et seq.
(FCCPA). This section contains an exhaustive list of nineteen
subparts.
As Defendants note, the Second Amended Complaint does not specify
which subparts apply.
In response, Plaintiffs argue that paragraphs 155-58 of the Second
Amended Complaint specifically allege that Defendants violated Fla.
Stat. 559.72(9) by claiming, attempting, or threatening an action
that it did not intend to take. Although the Second Amended
Complaint never specifically invokes Section 559.72(9), there are
bigger problems. Section 559.72(9), like 15 U.S.C. Section
1692e(5), forbids threats that the collector knows it does not have
the right to take, stating:
In collecting consumer debts, no person shall: "(9) Claim, attempt,
or threaten to enforce a debt when such person knows that the debt
is not legitimate, or assert the existence of some other legal
right when such person knows that the right does not exist."
Thus, in order to state a claim under Section 559.72(9), Plaintiffs
must plausibly allege that Defendants knew they could not legally
accelerate the debts. Plaintiffs do not make such allegations.
Because Courts should generally allow plaintiffs the opportunity to
amend before dismissing a claim with prejudice, the Court will
allow plaintiff to amend.
Negligent Misrepresentation (Count III)
Count III alleges that Defendants committed negligent
misrepresentation by falsely leading Plaintiffs to believe
Defendants would foreclose if the default was not timely cured. To
state a claim for negligent misrepresentation, a plaintiff must
allege: (1) a false statement concerning a material fact (2) the
representor's knowledge that the representation is false (3) an
intention that the representation induce another to act on it and
(4) consequent injury by the party acting in reliance on the
representation. Because negligent misrepresentation sounds in
fraud, plaintiffs must plead these elements with particularity.
Allegations of fraud implicate a heightened pleading standard. In
addition to meeting the Rule 12(b)(6) standard, the pleading must
include: (1) precisely what fraudulent statement was made (2) the
time and place of each statement and who made it (3) the content of
each statement and how it misled the plaintiff; and (4) what the
defendant gained from the fraud.
Without these allegations, the claims of fraud are subject to
dismissal.
Defendants first argue that Plaintiffs fail to state a claim
because (1) Defendants never made any misrepresentation and (2)
Plaintiffs do not sufficiently allege injury. Without reaching the
issue of whether the letters contain actionable misrepresentations,
the Court agrees that Plaintiffs do not allege sufficient
injuries.
Count III alleges Plaintiffs were injured by paying the entire
balance of their defaults instead of using their funds on other
necessary living expenses. But Plaintiffs admit that they were in
default, that they owed the money to Defendants, and that the
letters motivated them to pay what they owed. In other words,
Plaintiffs allege that they were injured by satisfying their
contractual obligations. The Court is aware of no case law to
support that contractually owed payments are actionable losses
within the meaning of Florida negligent misrepresentation.
Injuries in negligent misrepresentation are limited to loss
suffered through reliance upon the false information.Although
Plaintiffs allege that they paid their bills in reliance upon the
false representations, they do not connect their emotional injuries
to this reliance. Plaintiffs do not allege that paying caused them
emotional injury. Rather, Plaintiffs allege that their injuries
arose from the false sense of urgency caused by reading and
believing the letter. With no nexus alleged between the emotional
injuries and the actions taken in reliance, the Plaintiffs do not
properly allege that they suffered emotional injuries from reliance
on the letters.
A full-text copy of the District Court's August 28, 2019 Opinion
and Order is available at https://tinyurl.com/y4fchtox from
Leagle.com.
Nicole Barilla, on behalf of themselves and others similarly
situated, Lois Kerr, on behalf of themselves and others similarly
situated & Charles McDonald, on behalf of themselves and others
similarly situated, Plaintiffs, represented by Edward H. Maginnis
-- emaginnis@maginnislaw.com -- Maginnis Law PLLC, pro hac vice,
Joel J. Ewusiak, Ewusiak Law, P.A., 6601 Memorial Highway, Suite
311, Tampa, FL 33615 & Scott C. Harris -- scott@wbmllp.com --
Whitfield, Bryson & Mason, LLP.
Seterus, Inc, Defendant, represented by Brittney Lauren Difato --
bdifato@mcguirewoods.com -- McGuireWoods, LLP & Sara F.
Holladay-Tobias -- stobias@mcguirewoods.com -- McGuireWoods, LLP.
Nationstar Mortgage LLC, as successor in interest to Seterus, Inc.,
Defendant, represented by Brittney Lauren Difato, McGuireWoods,
LLP.
SIRIUS XM: Court Denies Bid to Intervene in Buchanan
----------------------------------------------------
The United States District Court for the Northern District of
Texas, Dallas Division, issued a Memorandum Opinion and Order
denying Partick Maupin's Motion to Intervene in the case captioned
THOMAS BUCHANAN, Plaintiff, v. SIRIUS XM RADIO, INC., Defendant.
Civil Action No. 3:17-CV-0728-D. (N.D. Tex.).
Patrick Maupin moves pro se to intervene as of right under Fed. R.
Civ. P. 24(a)(2), or, alternatively, to intervene permissively
under Rule 24(b)(1)(B).
Buchanan filed a class action complaint against Sirius XM, alleging
that it had violated the TCPA by placing telemarketing calls to
individuals who had registered either with the National Do Not Call
Registry or Sirius XM's internal DNC list.
Sirius XM raised as a defense the established business relationship
(EBR) exception to the TCPA. The EBR exception permits businesses
to call members of the National DNC Registry with whom they have an
existing business relationship.
Patrick Maupin discovered that he was a member of the class. Maupin
alleges that he received two calls from Sirius XM soliciting
subscriptions. He avers that, at the time of the calls, he was a
member of the National DNC Registry. He also maintains that,
despite having paid for Sirius XM services in the past, he has had
no recent voluntary communication with Sirius XM that would, in his
view, place the calls within the EBR exception. Following the
second call, Maupin sent a claim for damages to Sirius XM's
counsel, but the parties were unable to resolve his claim.
Despite acknowledging class counsel's statement that the EBR issue
is a risk to litigate, Maupin posits that the EBR issue should be
litigated, and he intends to ensure that a ruling is made on this
issue if he is permitted to intervene.
The court turns first to Maupin's motion to intervene as of right.
A party is entitled to intervene as of right under Rule 24(a)(2) if
(1) the motion to intervene is timely (2) the interest asserted by
the potential intervenor is related to the action (3) the interest
may be impaired or impeded by the action and (4) the interest is
not adequately represented by the existing parties.
The court will assume arguendo that Maupin is a member of the class
and that he has satisfied the first two elements of intervention as
of right timeliness and an interest related to the action and will
therefore focus its analysis on the remaining two elements
impairment and inadequate representation.
The court turns first to the impairment prong.
The impairment prong requires the movant to demonstrate that he has
a legally protectable interest related to the action and that
denial of intervention may, as a practical matter, impair or impede
the movant's ability to protect that interest. Although the
impairment requirement does not demand that the movant be bound by
a possible future judgment, the impairment must be practical and
not merely theoretical.
Maupin alleges two interests that may be impaired if he is not
permitted to intervene. He asserts an interest in ensuring that the
cost of the settlement is sufficiently high to deter Sirius XM from
future violations of the TCPA. And he asserts that he and other
class members are entitled to a ruling on the question whether
Sirius XM had an EBR with class members at the time the calls were
made Sirius XM responds that some of Maupin's alleged interests are
not legally protectable and those that are, including his
individual rights under the TCPA, are not impaired because he can
opt out of the class action, file a written objection to the
proposed settlement, or enter an appearance through an attorney.
Maupin replies that because the Fifth Circuit does not require a
showing that he will be bound by a future judgment, he cannot be
precluded from intervening merely because he can opt out. He also
maintains that, as a practical matter, the expense of hiring an
attorney impairs his ability to otherwise protect his interests.
Assuming arguendo that the interests Maupin alleges are legally
protectable, the court nevertheless concludes that Maupin has not
demonstrated that these interests will be impaired. This is so
because Maupin can opt out of the class action, object to the
settlement, or enter an appearance through an attorney.
This court has held that the impairment prong is not satisfied
where the class member will have the opportunity to object to any
settlement or opt out of its preclusive effect, because, as a
practical matter, the class member's interests suffer little to no
injury. To the extent that other circuits have held otherwise,
these decisions are not binding on this court.
In this case, Maupin has several options to prevent his interests
from being impaired or impeded: he can opt out of the class action,
object to the settlement, or enter an appearance through counsel.
Maupin's argument that these options are prohibitively expensive
and therefore impair his interests as a practical matter are
unavailing. In this case, the cost of hiring an attorney and the
general challenges of litigating an individual action do not of
themselves satisfy the impairment prong. Maupin has not
demonstrated that his interests will be impaired if he is unable to
intervene.
The court now turns to the inadequate representation prong.
The burden of establishing inadequate representation is on the
movant. Although the applicant's burden of showing inadequate
representation is minimal, it cannot be treated as so minimal as to
write the requirement completely out of the rule. The potential
intervenor need only show that the representation may be
inadequate. A presumption of adequate representation, however,
arises when the would-be intervenor has the same ultimate objective
as a party to the lawsuit. To rebut this presumption, the
applicant for intervention must show adversity of interest,
collusion, or nonfeasance on the part of the existing party.
For the same reasons that Maupin maintains that his interests would
be impaired, he posits that his interests are not adequately
represented. Maupin contends that the settlement that class counsel
negotiated is insufficient to deter Sirius XM from future
violations of the TCPA. He also maintains that class counsel's
decision to settle rather than litigate the EBR defense and failure
to explicitly require Sirius XM to scrub against the National DNC
Registry demonstrate inadequacy of representation.
Sirius XM and Buchanan respond that Maupin's interests are
adequately protected as a member of the class. Sirius XM and
Buchanan assert that the presumption of adequate representation
applies because Maupin has not set forth an interest that is
different from that of the class. Sirius XM posits that Maupin has
not overcome the presumption because Maupin's allegations amount to
a disagreement over legal tactics and the particulars of a remedy,
not the required showing of adversity of interest, collusion, or
nonfeasance on the part of the existing party.
Maupin replies that he seeks different relief, not different legal
tactics. He asserts that the settlement agreement does not provide
an adequate remedy for members of the National DNC Registry because
it does not enjoin Sirius XM from calling its members. Maupin
maintains that class counsel's unwillingness to modify the
settlement to include an injunction specific to the National DNC
Registry subclass demonstrates inadequate representation.
The court concludes that Maupin and the existing parties share the
same ultimate objective. Both Maupin and Buchanan seek a remedy for
Sirius XM's violations of the TCPA, including its calls to members
of the National DNC Registry, and seek a change in Sirius XM's
telemarketing practices to avoid future violations of the TCPA. For
this reason, the presumption of adequate representation applies.
Neither Maupin's dissatisfaction with class counsel's decision to
settle rather than litigate the EBR issue nor Maupin's desire for a
larger settlement and explicit language constraining Sirius XM's
engagement with the National DNC Registry demonstrates a difference
in ultimate objectives, much less shows inadequate representation.
Here, the objectives Maupin and Buchanan seek are not adverse like
those of the intervenor and the organization in LULAC. Indeed, the
interests Maupin advances are the very ones that class counsel
advocates a monetary remedy for Sirius XM's alleged violations of
the TCPA and changed telemarketing practices to prevent future
violations. The settlement that class counsel has reached in fact
provides a monetary remedy for members of the National DNC Registry
whom Sirius XM called simply attempting to force his own agenda on
counsel representing the class.
Because Maupin and the existing parties share the same ultimate
objective, the presumption of adequate representation applies and
must be rebutted with evidence of adversity of interest, collusion,
or nonfeasance on the part of the existing party. Maupin has not
pleaded any allegations of adversity of interest, collusion, or
nonfeasance outside of that which the court has concluded is mere
disagreement over legal strategy.
Maupin has failed to rebut the presumption of adequate
representation.
Accordingly, because Maupin has failed to satisfy two of the four
essential elements for demonstrating intervention as of right, his
motion to intervene as of right is denied.
The court now turns to the question whether Maupin has demonstrated
that he should be allowed to intervene permissively under Rule
24(b)(2).
The decision to grant or deny a motion to intervene permissively is
wholly discretionary with the district court even though there is a
common question of law or fact, or the requirements of Rule 24(b)
are otherwise satisfied.
Rule 24(b)(2) permits intervention when: (1) timely application is
made by the intervenor (2) the intervenor's claim or defense and
the main action have a question of law or fact in common and (3)
intervention will not unduly delay or prejudice the adjudication of
the rights of the original parties.
The court will assume arguendo that Maupin can satisfy the first
two elements of permissive intervention and will focus its analysis
on the third element: undue delay and prejudice to the original
parties.
Maupin contends that permissive intervention will not unduly delay
the resolution of this case or prejudice the right of the original
parties because he is not inserting any new issues into the case.
Sirius XM responds that Maupin's interests are adequately
represented and, therefore, that the only result of Maupin's
intervention would be delay and increased costs. Maupin replies
that he does not intend to delay resolution of the case but merely
intends to ensure that members of the class who are also members of
the National DNC Registry obtain an adequate remedy.
The court concludes that granting Maupin leave to intervene
permissively in this case will unduly delay its resolution and
prejudice the rights of the original parties. Buchanan and Sirius
XM have undertaken two years of litigation and recently completed
mediation to arrive at the proposed settlement. The class,
estimated to include over 14 million people, has already begun to
receive notices of the preliminarily approved settlement. Any
remedy to which the class will be entitled if the case is settled
now or litigated later will inevitably be delayed if intervention
is permitted.
The sheer size of the class and the delay that litigating or
renegotiating issues the existing parties have already settled
militate against permissive intervention. This is especially so
where, as here, the court has already concluded that the putative
intervenor's interests are adequately protected by the existing
parties, and the movant has the option to advocate for his specific
interests by other means.
The court denies Maupin's alternative motion to intervene
permissively.
Maupin's opposed motion to intervene is denied.
A full-text copy of the District Court's August 28, 2019 Memorandum
Opinion and Order is available at https://tinyurl.com/y5nfawd3 from
Leagle.com.
Thomas Buchanan, Plaintiff, represented by Jarrett L. Ellzey, Jr.,
Hughes Ellzey LLP, 1105 MILFORD STREET, Houston, TX 77066, Aaron
Siri, Siri & Glimstad LLP, 200 Park Ave Fl 17, New York, NY
10166-0004, pro hac vice, Daniel Hutchinson, Lieff Cabraser
Heimann & Bernstein LLP, 275 Battery Street, 29th Floor San
Francisco, CA 94111-3339, pro hac vice, Deola T. Ali, Hughes Ellzey
LLP, 1105 Milford Street., Houston, TX 77066, Douglas M. Werman,
Werman Salas PC, 77 W Washington, Suite 1402, Chicago, IL,
60602-3499, pro hac vice, Henry Abel Turner, Turner Law Offices
LLC, 1300 Rollingbrook, Ste. 610, Baytown, Texas, pro hac vice,
Jonathan D. Selbin, Lieff Cabraser Heimann & Bernstein LLP,
Cabraser Heimann & Bernstein LLP, 275 Battery Street, 29th Floor
San Francisco, CA 94111-3339, Mason Adams Barney, Siri & Glimstad
LLP, 200 Park Ave Fl 17, New York, NY 10166-0004, pro hac vice &
William Craft Hughes, Hughes Ellzey LLP, 1105 Milford Street.,
Houston, TX 77066,
Sirius XM Radio Inc, Defendant, represented by Albert J. Rota –
ajrota@jonesday.com -Jones Day, Allison Waks -- awaks@jonesday.com
-- Jones Day, pro hac vice, Lee Armstrong --
laarmstrong@jonesday.com -- Jones Day, pro hac vice, Natalia
Oehninger Delaune -- ndelaune@jonesday.com -- Jones Day, Sidney
Smith McClung -- smcclung@jonesdaw.com -- Jones Day & Thomas
Demitrack -- tdemitrack@jonesday.com -- Jones Day, pro hac vice.
Patrick Maupin, Intervenor, pro se.
SIRIUS XM: Settles Class Action Over TCPA Violation
---------------------------------------------------
Homer J. Lapp, writing for Foreign Policy, reports that if you are
keeping an eye on the public space, then you might be aware of what
happened with the satellite giant Sirius XM. They found themselves
in trouble for violating the Telephone Consumer Protection Act.
This is basically a federal law which protects consumers from the
telemarketing campaigns. It basically states and protects the
consumers from calls in which they have registered themselves on
the national do not call registry. It is also applicable if the
consumer has registered itself on the company's do not call list.
So, basically, when someone violates the law, they are not being
sued. However, they owe money to the other party on the basis of a
class action settlement. So, on the basis of that, a settlement has
been filed on the class action lawsuit. It claims that Sirius XM
made calls to people who had registered themselves on the national
do not call registry and the company's do not call list as well.
However, in the beginning, Sirius XM denied the whole allegation.
They said that they had not violated any kind of law. The
settlement will give its consumers some months of free services or
even a cash payment.
Who will receive the settlement?
The settlement class basically includes all the people from the
United States of America who received different kinds of
telemarketing calls from Sirius XM from the 16th of October 2013 up
till the 26th of April 2019. They can receive the settlement only
if they have received a call from Sirius XM at least twice in a
frame of 12 months period after they got their wireless phone or
landline number registered on the National do not call registry.
Also, it is important to note that a time frame of 31 days has to
pass after the registration is done. In those 31 days, Sirius XM
can make calls to that particular client. Also, they can receive a
settlement if they got their wireless phone and landline registered
on Sirius XM's internal company do not call list.
The Settlement- Terms and Conditions
Sirius XM is actually eligible to provide three months of complete
free subscription to the consumers standing in the lawsuit against
them. The free access is given to its all-access subscription
package. The package includes all of its available channels.
Currently, there are 150 channels streaming on their package. The
other way of settling this lawsuit would be with the help of cash
payment. Settlement fund would include a sum of $25 Million. It
will be distributed among all the class members who provide with
valid claim forms and proofs. Even attorney's fees, settlement
administrations and service awards will be reimbursed within that.
It actually then depends on the class member on how they want to
settle the case. They can either choose a free service or a cash
settlement. However, it is important to understand that they cannot
choose both options.
What is Sirius XM doing?
Well, after certain proceedings, Sirius XM has agreed to pay the
sum of $25 Million. They have also agreed to provide free services
as a part of the settlement against the violation of the TCPA. This
settlement will surely benefit all the consumers who have received
a telemarketing call from Sirius XM despite registering their name
in the national do not call registry and Sirius XM's do not call
list over a period of 31 days. These individuals are claiming to
have received more than once call in a period of 12 months after
the registry. Thus, they are eligible for a settlement. The 12
month period is valid from Oct 16th 2013 to April 26th 2019.
Plaintiff Thomas Buchanan actually filed this particular case
against Sirius XM in March 2017. According to him, Sirius XM
continued violating the Telephone Violating Consumer Protection
Act. They continued calling the customers in spite of them being
registered in the National do not call registry and Sirius XM's do
not call company list. He argued that this is a violation of the
federal law as TCPA falls under that amendment. Although, Sirius XM
is still standing its ground strong by saying that they have not
done any wrongdoing. They believe that they have not broken any
law. However, they have still agreed to pay the settlement. The
settlement from them was agreed after giving a note which said that
the given settlement does not mean that violation of any law
happened of Sirius XM did anything wrong. The note further
continued that instead by settling this issue down, Sirius XM is
avoiding risks of trial and allowing the claims to be settled
without stress and further costs.
Bottom Line
This settlement will surely benefit all the consumers. It will also
stand as an example to all the companies to take such laws
seriously. [GN]
SKM RECYCLING: Likely to Be Sold Following Coolaroo Settlement
--------------------------------------------------------------
Australian Associated Press reports that a possible private buyer
is on the cards for a major Victorian recycler that was forced into
liquidation owing millions of dollars, the state government says.
SKM Recycling was declared insolvent by Victoria's Supreme Court in
August following the company's failure to produce a promised $13.5
million from a new investor.
It was another blow to Australia's beleaguered recycling sector and
left at least 30 Victorian councils scrambling for other options as
well as hundreds of workers facing unemployment.
The state government has previously labelled SKM a cowboy operator
and Premier Daniel Andrews on Aug. 11 anticipated other private
operators could step in following the company's collapse.
"There are a number of other private sector operators that we
anticipate will step up and do more and there is some commercial
interest in purchasing that SKM business," Mr Andrews said.
SKM's insolvency came after the state's environmental watchdog
issued the company with multiple bans on accepting waste because of
repeated regulatory breaches.
Shortly before SKM was wound up, Environment Minister Lily
D'Ambrosio said a deal had been struck so other recycling
processors would handle 40 per cent of SKM's workload.
But she declined to say which operators were involved or what the
cost would be to taxpayers.
The company that led the legal action against SKM's Victorian
operation, Tasman Logistics, said it was owed $3.35 million, while
another 15 creditors were owed more than a combined $2.2 million.
The Supreme Court was told SKM held little or no realisable
assets.
The recycler's collapse came a day after it reached a $1.2 million
class action settlement over a 2017 fire at its Coolaroo plant in
Melbourne's north. [GN]
SOCIAL VOCATIONAL: Delgadillo Seeks Unpaid Wages for Caregivers
---------------------------------------------------------------
Alexandra M. Delgadillo, an individual, on behalf of the State of
California, as a private attorney general, the Plaintiff, vs.
Social Vocational Services, Inc., a California Domestic Non-Profit
Corporation; and DOES 1-50, inclusive, the Defendants, Case No:
19CECG03108 (Cal. Super., Aug. 27, 2019), seeks penalties for
Defendants' violation of the California Labor Code.
The Plaintiff was employed by Defendant from September 2017 through
the present, as a caregiver for Defendant. Ms. Delgadillo typically
worked five days per week and her shifts typically ran an average
of eight to nine hours. She was paid between $11.25 and $12.00 per
hour during her employment. The Plaintiff and the Aggrieved
Employees are covered by California Industrial Welfare Commission
Occupation Wage Order No. 5-2001.
As a result of Defendant's faulty rounding policy and failure to
pay for work performed off-the-clock, Plaintiff and the other
Aggrieved Employees were forced to work on a regular and consistent
basis without receiving compensation for all hours worked at the
proper rate, the lawsuit says.[BN]
Attorneys for the Plaintiff and the Aggrieved Employees are:
Martin Sullivan, Esq.
Jonathan Melmed, Esq.
MELMED LAW GROUP P.C.
1180 South Beverly Drive, Suite 610
Los Angeles, CA 90035
Telephone: (310) 824-3828
Facsimile: (310) 862-6851
E-mail: ms@melmedlaw.com
jm@melmedlaw.com
SOUTH CAROLINA: 4th Cir. Dismisses Firriolo Suit
------------------------------------------------
The U.S. Court of Appeals for the Fourth Circuit dismissed the
case, THOMAS RAYMOND FIRRIOLO, Plaintiff-Appellant, v. SOUTH
CAROLINA LAW ENFORCEMENT DIVISION, State of South Carolina,
Employees, et al.; LIEUTENANT ELIZABETH CORLEY, (SLED) South
Carolina Law Enforcement Division, State of South Carolina; MARK
KEEL, Chief of (S.L.E.D.), Law Enforcement Division, State of South
Carolina; PAUL GRANT, Assistant Chief, South Carolina Law
Enforcement Division, State of South Carolina; CITY OF GREENVILLE,
Employees; MR. BRAD RICE; MR. JEFF BOWEN; MR. GARY FENELL; MS.
JODIE DUDASH; MR. BOBBIE SKINNER; MS. CYNTHA VILARDO; MS. TOMMY, of
Greenville Cares (Jane Doe), Defendants-Appellees, Case No. 19-1308
(4th Cir.).
Firriolo seeks to appeal the district court's order granting his
motion for an extension of time. The Court may exercise
jurisdiction only over final orders, and certain interlocutory and
collateral orders.
The Court holds that the order Firriolo seeks to appeal is neither
a final order nor an appealable interlocutory or collateral order.
Accordingly, it dismissed the appeal for lack of jurisdiction. It
denied Firriolo's motions for reconsideration, for an en banc
hearing, and for certification of a class action, and denied as
moot his motion for a decision in this appeal.
The Court dispensed with oral argument because the facts and legal
contentions are adequately presented in the materials before it and
argument would not aid the decisional process.
A full-text copy of the Court's Aug. 14, 2019 Opinion is available
at https://is.gd/JCeSIU from Leagle.com.
Thomas Raymond Firriolo, Appellant Pro Se.
SOUTHERN RESPONSE: Set to Close in December Amid Legal Action
-------------------------------------------------------------
Dominic Harris, writing for Stuff, reports that a Crown-owned
earthquake claims company that impacted the lives of thousands of
Cantabrians will shut down in December.
Southern Response -- set up by the Government when insurer AMI
failed in in 2012 -- has been winding down, with open claims now
below 400. All outstanding business will to be passed on to a
"receiving agency" when it effectively closes at the end of the
year.
Tens of millions of dollars of unresolved cases are yet to be
settled, but payouts have been guaranteed.
Earthquake Commission (EQC) Minister Grant Robertson said a "clear
bottom line" for the Government was settling claims to "help people
move on with their lives, and we will see that through".
Southern Response has resolved 8262 claims so far. Some 379 are
still being contested, while a $300m lawsuit alleging around 3000
homeowners were underpaid on insurance settlements remains in the
air.
The organisation offered welcome relief for many as it rescued
claims left in limbo by AMI after the Canterbury quakes.
The Government has since pumped more than $1.5 billion, repeatedly
topping its original $500m pot after it became clear it would not
be enough.
But it drew anger after being slow to settle cases and pushing back
against homeowners, and last year was heavily criticised after it
emerged it had employed a security firm to spy on claimants, the
fiasco forcing the resignation of former chairman Ross Butler.
Southern Response announced its closure as it outlined its
performance expectations for the financial year ahead, saying by
the end of 2019 it will have completed most of its work other than
a "minor proportion of very complex claims and litigated claims".
Between 250 to 300 cases are expected to remain unresolved by the
time Southern Response winds down, worth an estimated $173
million.
After transferring its remaining operations to a receiving agency,
likely to be either EQC or fellow Crown-run scheme the Greater
Christchurch Claims Resolution Service (GCCRS), it is assumed
Southern Response will "cease operating under its current model",
the report says.
"It will continue to exist as a legal entity which retains ultimate
responsibility for the discharge of obligations to policy
holders."
Robertson said Southern Response had made "great progress" in
resolving claims over the past year, many through GCCRS, which was
launched in October.
"At this point as the process begins to wind down it makes sense to
look at the appropriate organisational arrangements," he said. "No
final decisions have been made yet on those.
"Any new arrangement will retain all of Southern Response's
responsibilities and liabilities to claimants. We would also be
seeking as smooth as possible a transition for claimants.
Cam Preston, an accountant who became a high-profile Southern
Response critic while disputing his own quake claim, said he was
extremely grateful of taxpayers stepping in to help.
But he questioned why AMI's directors had been allowed to escape
with little scrutiny and urged the Government to learn from past
mistakes.
"I think the Government needs to learn from the $1.5b of taxpayers'
money that it has had to pay to bailout that last board of
directors of AMI Insurance, and it needs to supervise the insurance
sector far more carefully and rigorously than it has, otherwise
we're doomed to repeat the same thing again." [GN]
SUNPOWER CORPORATION: Court Narrows Claims in Jannarone Suit
------------------------------------------------------------
The United States District Court for the District of New Jersey
issued a Memorandum Opinion granting in part and denying in part
Defendant's Motion to Dismiss in the case captioned JEFFEREY
JANNARONE, Plaintiff, v. SUNPOWER CORPORATION, Defendant. Civil
Action No. 18-9612 (MAS) (TJB). (D.N.J.).
Plaintiff entered into a contract with non-party GeoGenix for the
installation of Defendant's solar electric system on Plaintiff's
home. Defendant represented that the System would produce a minimum
of just over 7,000 kW per year. Shortly after the installation, the
system began to malfunction and did not produce the represented
minimum 7,000 kW per year. Plaintiff alleges that the System
malfunctioned almost immediately after the installation and failed
to produce the minimum amount of power in the beginning of 2008 and
has only produced the promised amount of power in two out of ten
years. Plaintiff alleges that Defendant was aware that it was
giving false information about the power generated annually, that
Plaintiff reasonably relied on those misrepresentations.
Plaintiff has Pled Sufficient Facts Regarding an Agency
Relationship
Plaintiff's breach of contract claim relies on the existence of an
agency relationship between Defendant and GeoGenix. An agency
relationship is created when one party consents to have another act
on its behalf, with the principal controlling and directing the
acts of the agent.
Plaintiff alleges that an agency relationship based on actual
authority existed between Defendant and GeoGenix, whereas Defendant
was the principal and GeoGenix was its agent. As such, Plaintiff
must plead facts in support of its allegation that Defendant
controlled and directed the acts of GeoGenix. Defendant argues that
Plaintiff does not allege any agreement between Defendant or
GeoGenix or that there was an agency relationship at the time of
taking action that has legal consequences for the principal.
The Court finds Defendant's arguments unpersuasive.
First, contrary to Defendant's argument, an actual agreement is not
required to plead an agency relationship. There need not be an
agreement between parties specifying an agency relationship,
rather, the law will look at their conduct and not to their intent
or their words as between themselves but to their factual
relation.
In his Amended Complaint, Plaintiff relies upon statements from
former GeoGenix owner Mitch Berman to demonstrate that Defendant
exercised direct control over GeoGenix. Specifically, Berman states
GeoGenix was an authorized dealer for Defendant and, at some point,
became an Elite Dealer of Defendant's products.
To become an Elite Dealer, Defendant required GeoGenix to undergo
mandatory and ongoing training which included GeoGenix
representatives traveling to Defendant and conferences hosted by
Defendant, online training, and Defendant's representatives going
to GeoGenix in person for training. Berman also claimed, that in
order for GeoGenix to maintain its Elite Dealer status, Defendant
required more than 50% of GeoGenix's sales to be for Defendant's
solar power systems and to become an Elite Dealer, GeoGenix was
required to submit financials to Defendant and then plead its case
for why GeoGenix should be afforded the dealer status. The alleged
required roles and control of GeoGenix by Defendant allow for a
plausible agency relationship.
Given the allegations above, the Court finds that at this motion to
dismiss stage, Plaintiff has pled sufficient facts demonstrating
the plausibility of an agency relationship between Defendant and
GeoGenix.
The Court, therefore, denies Defendant's motion to dismiss
Plaintiff's breach of contract claims.
Plaintiff Sufficiently Pled That Defendant did not Meet its
Warranty Obligations
Plaintiff brings a breach of warranty claim because the System
failed to produce the promised minimum amount of power and
Plaintiff has never had a consistently functional System. Defendant
moves to dismiss Plaintiff's breach of warranty claim, arguing the
Warranty obligations were met when Defendant attempted to fix the
System.
When determining if a repair or replacement meets the obligations
of a warranty, courts generally have concluded that so long as the
buyer has the use of substantially defect-free goods, the limited
remedy should be given effect. But when the seller is either
unwilling or unable to conform the goods to the contract, the
remedy does not suffice.
Plaintiff alleges the System's malfunctioning and Defendant's
subsequent inability to get the System to produce the represented
power output deprived Plaintiff of the substantial value of his
bargain, namely the expected compensation for the SREC credits.
Plaintiff alleges that despite Defendant's repeated attempts to
repair the System, the represented minimum power of 7,000 kW was
only produced two out of ten years. Plaintiff also alleges he would
not have purchased a solar power system but for the benefits
conferred under the SREC. Due to the System's continued
malfunctioning, Plaintiff was deprived of compensation to produce
electrical power under the SREC program.
Plaintiff has sufficiently pled a plausible claim for breach of
warranty and Defendant's argument that it attempted to repair the
System lacks persuasion.
Plaintiff Insufficiently Pled Required Bad Motive for Breach of
Implied Covenant of Good Faith and Fair Dealing Claims
Defendant moves to dismiss Plaintiff's claims for breach of good
faith and fair dealing. Plaintiff argues Defendant breached the
implied covenant of good faith and fair dealing by taking monies
from Plaintiff yet furnishing a constantly malfunctioning System
while ignoring Plaintiff's warranty demands.
Defendant argues it cannot have breached the implied covenant of
good faith and fair dealing when it acted in accordance with an
express contractual term. Defendant also claims the Amended
Complaint does not allege that [Defendant] acted with a bad motive
in relation to the Defendant's Warranty.
To establish a breach of the covenant of good faith and fair
dealing, a plaintiff must show that the party alleged to have acted
in bad faith has engaged in some conduct that denied the benefit of
the bargain originally intended by the parties.
First, Defendant's argument that acting according to an express
contractual term precludes a breach of implied covenant of good
faith and fair dealing claim is without merit. Second, in pleading
bad motive, Plaintiff is not required to specifically use or plead
bad motive or bad intentions, Plaintiff need only plead that
Defendant has acted arbitrarily, unreasonably, or capriciously.
Here, Plaintiff alleges that he made a multitude of requests under
the Warranty for Defendant to repair or replace the defective
System which were consistently and repeatedly ignored. Plaintiff
alleges that when Defendant did attempt to repair the System, the
repair was either ineffective, or the System shortly began to
function sub-optimally again.
Nowhere in the Amended Complaint, however, does Plaintiff allege
Defendant acted with bad motive, or that Defendant acted
arbitrarily, capriciously, or unreasonably in regard to either the
Contract or the Warranty. Plaintiff makes no such allegations of
unreasonableness regarding his contract claims.For the Warranty,
Plaintiff only alleges that Defendant ignored requests to repair or
replace the System and Defendant did in fact repair and replace the
System.
Plaintiff has not alleged any arbitrarily unreasonable or bad
intention on the part of Defendant; therefore, the Court dismisses,
without prejudice, the breach of good faith and fair dealing
claims.
Plaintiff may Plead Unjust Enrichment as an Alternative to the
Breach of Contract Claim
The doctrine of unjust enrichment rests on the equitable principle
that a person shall not be allowed to enrich himself unjustly at
the expense of another. To establish an unjust enrichment claim, a
plaintiff must show that he or she expected remuneration from the
defendant at the time he or she performed or conferred a benefit on
defendant and that the failure of remuneration enriched defendant
beyond its contractual rights.
Defendant moves to dismiss the unjust enrichment claim arguing
Defendant has no direct relationship with Plaintiff" via the
Contract or an agency relationship. Alternatively, Defendant argues
unjust enrichment claims must be dismissed where an express
agreement exists.
Plaintiff argues he sufficiently pled an agency relationship and
that Defendant received a direct benefit through the purchase of
the System. Plaintiff also argues he has sufficiently pled the
following unjust enrichment elements: (1) at plaintiff's expense
(2) defendant received benefit (3) under circumstances that would
make it unjust for defendant to retain benefit without paying for
it.
The Court has already found that Plaintiff sufficiently pled an
agency relationship. Defendant, however, disputes the Contract as
inapplicable to it since only GeoGenix and Plaintiff were parties
to the Contract. Plaintiff, therefore, may plead unjust enrichment
as an alternative claim.
The Court next addresses whether Plaintiff has sufficiently pled
the elements of unjust enrichment. Plaintiff alleges he paid
Defendant or its agent the full price of $57,728.00 for
installation of the System. Plaintiff attached the Contract to his
Amended Complaint, which shows an agreement in which Plaintiff
would pay $57,728 for Defendant's Modules and Inverters. The
Court, accordingly, finds that Plaintiff sufficiently pled that
Defendant received a benefit at Plaintiff's expense, which would be
unjust for Defendant to retain.
The Court, therefore, denies Defendant's motion to dismiss
Plaintiff's unjust enrichment claim.
The Economic Loss Doctrine Precludes Plaintiff's Common-Law Fraud
Claims
Defendant argues Plaintiff failed to allege that it made any
statement or misrepresentation to support a common-law fraud claim.
Defendant also argues the economic loss doctrine precludes
Plaintiff from pleading a fraud claim. Plaintiff opposes and argues
that he pled very specific misrepresentations that are more than
sufficient to place Defendant on notice of the complained
fraudulent conduct.
The economic loss doctrine prohibits plaintiffs from recovering in
tort economic losses to which their entitlement only flows from a
contract. The economic loss doctrine has been applied not only in
products liability cases, but also in actions arising out of
contracts for services and mixed goods/services contracts,
including construction contracts. To plead a common-law fraud claim
in a contractual dispute, the conduct that the plaintiff is
complaining of in its tort claims must be extrinsic to the
contract.
The Court finds that the economic loss doctrine precludes Plaintiff
from pleading common-law fraud. Here, Plaintiff alleges Defendant
misrepresented information regarding the annual power generated by
the System and the promised coverage under the Warranty.
Plaintiff, however, does not plead why or how these allegations are
extrinsic to the contract; all elements of Plaintiff's pleading
deal with promises contained within the Contract and the Warranty.
Thus, Plaintiff has made no allegations that the fraud claim is
extrinsic to the underlying contract claim.
The Court, therefore, dismisses Plaintiff's common-law fraud claims
without prejudice.
Plaintiff Sufficiently Pled Violations of the CFA
The CFA does not require that the consumer actually be misled or
defrauded by a merchant; any violation is enough to create
liability. To violate the CFA, a person must commit an unlawful
practice as defined in the legislation. Unlawful practices fall
into three general categories: affirmative acts, knowing omissions,
and regulation violations.
Plaintiff alleges Defendant violated express provisions of the CFA
and its regulatory statute, the New Jersey Home Improvement
Practice Act (HIP). Defendant, however, argues Plaintiff has not
met the heightened pleading standard required by Rule 9(b) and that
Plaintiff has not specified any conduct that could give rise to a
New Jersey CFA violation.
CFA Regulation Violations
Plaintiff alleges Defendant violated several provisions of the CFA
statutes. Namely, Plaintiff alleges Defendant, in the Contract, did
not include the required information regarding: (1) general
liability insurance, in violation of N.J.S.A. (2) notice that
Plaintiff may cancel the Contract within three days under N.J.S.A.
56:8-151(b) and (3) the toll-free number to the New Jersey
Department of Consumer Affairs, in violation of N.J.S.A. 56:8-144.
Specificity in Pleading CFA Violations
To state a claim under the CFA, the plaintiff must allege
sufficient facts to demonstrate: (1) unlawful conduct (2) an
ascertainable loss and (3) a causal relationship between the
unlawful conduct and the ascertainable loss.
A plaintiff pleading a CFA claim must also meet the heightened
pleading standard under Rule 9(b). Under Rule 9(b), a plaintiff
alleging fraud must state the circumstances of the alleged fraud
with sufficient particularity to place the defendant on notice of
the precise misconduct with which it is charged. To satisfy this
standard, the plaintiff must plead or allege the who, what, when,
where, and how of the events at issue.
Plaintiff has sufficiently pled unlawful conduct by Defendant in
alleging violations of the CFA regulations and the HIP Act. As for
ascertainable loss, Plaintiff pled loss of money for installation
in the amount of $57,728 and loss of compensation from the foregone
SREC credits. To allege causation, Plaintiff needs only to
sufficiently plead his ascertainable loss was a result of" the
unlawful practice.
By sufficiently pleading an agency relationship between Defendant
and GeoGenix regarding the Contract, Defendant is allegedly liable
for Plaintiff's loss in connection with the Contract. As a result
of entering into the Contract, Plaintiff spent $57,728 for the
installation of an allegedly faulty System.
Plaintiff has sufficiently pled his CFA claim and satisfied the
Rule 9(b) pleading standard.
New Jersey TCCWNA
The TCCWNA provides that: "No seller, lessor, creditor, lender or
bailee shall in the course of his business offer to any consumer or
prospective consumer or enter into any written consumer contract or
give or display any written consumer warranty, notice or sign after
the effective date of this act which includes any provision that
violates any clearly established legal right of a consumer or
responsibility of a seller, lessor, creditor, lender or bailee as
established by State or Federal law at the time the offer is made
or the consumer contract is signed or the warranty, notice or sign
is given or displayed."
Defendant argues that the TCCWNA does not apply because Defendant
is not a party to the Contract. Plaintiff argues that his
sufficiently pled CFA claim also gives rise to a sufficient
pleading of the TCCWNA claim.
Plaintiff sufficiently pled a CFA violation claim; he repeats those
allegations for his TCCWNA claim regarding the Contract.
Plaintiff's sufficiently pled CFA claim is enough to allege a
violation of a clearly established legal right", thus Plaintiff
sufficiently pled a violation of the TCCWNA as well.
The Court, therefore, denies Defendant's motion to dismiss
Plaintiff's contract-based TCCWNA.
The Court next addresses Plaintiff's TCCWNA claim for the Warranty.
The TCCWNA allows for certain exceptions regarding warranties and
the exclusionary language they may contain:
No consumer contract, warranty, notice or sign, as provided for in
this act, shall contain any provision by which the consumer waives
his rights under this act. Any such provision shall be null and
void. No consumer contract, notice or sign shall state that any of
its provisions is or may be void, unenforceable or inapplicable in
some jurisdictions without specifying which provisions are or are
not void, unenforceable or inapplicable within the State of New
Jersey; provided, however, that this shall not apply to
warranties.
Defendant argues that the TCCWNA does not apply to the Warranty
since N.J.S.A. 56:12-16 provides an exemption for warranties.
Plaintiff argues Defendant's Warranty contains impermissible
exclusionary language which states that no seller may enter into
any written contract or warranty "that violates any clearly
established legal right of a consumer or responsibility of a seller
at the time the offer is made or the consumer contract or warranty
is signed.
Plaintiff alleges that the exclusionary language in the Warranty
extends beyond mere warranty exclusions and instead seeks to
impermissibly impose a limitation on damages. Plaintiff alleges
Defendant's damage limitation clause in its Warranty does not
specify if such limitation is legal in New Jersey, thus there is
impermissible exclusionary language in the Warranty. That claim is
governed by N.J.S.A. The second sentence of N.J.S.A. expressly
exempts warranties from the additional requirement of specifying
which provisions are or are not void, unenforceable or inapplicable
within the State of New Jersey. Thus, Plaintiff's claims of
impermissible exclusionary language cannot be applied to
Defendant's Warranty.
Plaintiff's TCCWNA claim for the Warranty, therefore, is dismissed
with prejudice.
Defendant's Motion to Dismiss is granted in part and denied in
part.
A full-text copy of the District Court's August 28, 2019 Memorandum
Opinion is available at https://tinyurl.com/y2oexhqz from
Leagle.com.
JEFFREY JANNARONE, on behalf of himself and others similarly
situated, Plaintiff, represented by ANTHONY JOSEPH D'ARTIGLIO --
ajd@ansellgrimm.com -- ANSELL GRIMM & AARON, P.C.
SUNPOWER CORPORATION, Defendant, represented by DERRICK R.
FREIJOMIL -- dfreijomil@riker.com -- RIKER DANZIG.
SYNACOR INC: Court Grants Dismissal of Lefkowitz Securities Suit
----------------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order granting Defendants' Motion to
Dismiss the First Amended Complaint in the case captioned SCOTT D.
LEFKOWITZ, et al., Plaintiffs, v. SYNACOR, INC., et al.,
Defendants. No. 18 Civ. 2979 (LGS). (S.D.N.Y.).
Plaintiffs, individually and on behalf of others similarly
situated, bring this putative class action against Defendants
Himesh Bhise and William J. Stuart and Synacor, Inc. (Synacor),
alleging violations of Section 10(b) and Section 20(a) of the
Securities Exchange Act of 1934 (Exchange Act).
The Alleged Material Omissions and Misrepresentations
The Complaint alleges material omissions and misstatements made
during the Class Period in violation of Sector 10(b) of the
Exchange Act and Rule 10b-5 promulgated thereunder, 17 C.F.R.
Section 240.10b-5. The Complaint's allegations of material
omissions and misstatements fall into three categories. The first
category is statements relating to revenue projections resulting
from Synacor's contract with AT&T. The second category concerns
statements and omissions about AT&T's control over monetizing the
portal and the impact on Synacor's revenues. The third category
relates to Synacor's failure to disclose weaknesses in the
company's internal controls for financial reporting.
Control Over Monetization
The Complaint alleges that Synacor portrayed the delayed
monetization of the portal as a joint decision between Synacor and
AT&T, when in reality, the companies had conflicting priorities and
AT&T was calling the shots. During the 2Q 2017 second quarter
earnings call on August 9, 2017, Bhise informed investors that the
joint AT&T Synacor team has decided to prioritize engagement over
monetization, but on March 15, 2018, Bhise stated, AT&T has chosen,
at least for the near term, to prioritize consumer experience and
engagement, and we are collaboratively working with them in
achieving this goal.
Weaknesses in Internal Controls
The Complaint alleges that the Individual Defendants failed to
disclose that the company's internal control over financial
reporting was materially deficient, causing the company to be
incapable of producing accurate financial statements. On the March
15, 2018, earnings call, Stuart disclosed three material weaknesses
in Synacor's internal controls over financial reporting. On March
16, 2018, Deloitte & Touche issued an adverse auditors' opinion,
stating that Synacor had not maintained effective internal control
over financial reporting as of December 31, 2017.
Scienter
The Complaint alleges scienter based on inferences from the facts
summarized above. In addition, the Complaint relies on confidential
witnesses (CW).
Plaintiffs assert claims under Section 10(b) of the Exchange Act
and its implementing rule, Rule 10b-5. That rule makes it unlawful
to make any untrue statement of a material fact or to omit to state
a material fact necessary in order to make the statements made, in
light of the circumstances under which they were made, not
misleading. To allege a violation of Section 10(b) and Rule 10b-5,
the complaint shall specify each statement alleged to have been
misleading, the reason or reasons why the statement is misleading,
and, if an allegation regarding the statement or omission is made
on information and belief, the complaint shall state with
particularity all facts on which that belief is formed.
The six elements of a claim under Section 10(b) and Rule 10b-5 are:
(1) a material misrepresentation or omission by the defendant (2)
scienter (3) a connection between the misrepresentation or omission
and the purchase or sale of a security (4) reliance upon the
misrepresentation or omission (5) economic loss; and (6) loss
causation.
The Complaint alleges that Defendants' misleading statements
allowed Synacor to inflate its share price for the company's
secondary offering. The Complaint alleges that Synacor misled
investors about (1) the amount of projected revenue Synacor could
reasonably expect from its contract with AT&T (2) the extent of
AT&T's control over monetizing the portal and (3) weaknesses in
Synacor's internal controls over financial reporting.
The Complaint fails to state a claim as to any of these statements
and omissions. Principally at issue on this motion is whether the
Complaint sufficiently pleads two of the six elements of securities
fraud, a material misrepresentation or omission, and scienter.
Section 10(b) Violation
Material Omissions and Misrepresentations
A statement or omission is material when there is a substantial
likelihood that the disclosure of the omitted fact would have been
viewed by the reasonable investor as having significantly altered
the total mix of information made available to the market.
To be material within the meaning of Section 10(b), the alleged
misstatement must be sufficiently specific for an investor to
reasonably rely on that statement as a guarantee of some concrete
fact or outcome which, when it proves false or does not occur,
forms the basis for a Section 10(b) fraud claim.
Financial Projections
The Complaint does not adequately plead that Defendants' financial
projections were materially misleading. The statements are either
non-actionable opinion statements or forward-looking statements.
Opinion Statements
Statements of opinion may be actionable misstatements if (1) the
speaker did not hold the belief she professed (2) if the supporting
facts she supplied were untrue or (3) the stated opinion, though
sincerely held and otherwise true as a matter of fact, omitted
information whose omission made the stated opinion misleading to a
reasonable investor.
A plaintiff who alleges falsity based on the third ground must
identify particular and material facts going to the basis for the
issuer's opinion facts about the inquiry the issuer did or did not
conduct or the knowledge it did or did not have whose omission
makes the opinion statement at issue misleading to a reasonable
person reading the statement fairly and in context.
The Complaint does not allege any of the three types of facts
necessary to make the statements of opinion actionable.
First, the Complaint alleges in only a conclusory fashion that the
Individual Defendants did not believe their own statements about
Synacor's future revenues from the AT&T contract: By virtue of
their positions at Synacor, the Individual Defendants had actual
knowledge of the materially false and misleading statements and
material omissions. Without any facts to make this conclusion
plausible, the allegation that Defendants did not actually believe
their financial projections is insufficient.
Second, the Complaint does not challenge the supporting facts
Defendants supplied in support of the projections. To the contrary,
the Complaint appears to embrace, but distinguish, the fact that
Yahoo reportedly earned $100 million per year from the AT&T
contract, giving rise to the inference that Synacor could do the
same. The Complaint alleges that Defendants disclosed that
Synacor's revenue projections were based on the value of AT&T's
prior contract with Yahoo, and that financial analysts agreed that
the AT&T partnership generated about $100 million in annual revenue
for Yahoo.
Third, the Complaint could be construed to allege that Defendants
may have sincerely believed their projections but omitted
particular identified facts that were the basis for the projections
whose omission makes the projections misleading to a reasonable
person reading the statement fairly and in context.
The Complaint also alleges that Defendants failed to disclose
weaknesses in internal controls for financial reporting. The
Complaint, however, identifies no connection between weak internal
controls and the revenue projections. The control weaknesses
identified by Defendants' auditor related to the preparation of
historical financial statements, not forecasts related to the AT&T
contract. The Complaint makes clear that Defendants based their
revenue projections on AT&T's prior contract with Yahoo and is
silent as to how deficient internal controls influenced revenue
projections.
Forward Looking Statements
Synacor's revenue projections are not actionable for the additional
reason that they fall within the scope of the PSLRA's safe harbor
for forward-looking statements.
The PSLRA provides that a statement containing a projection of
income including income loss, earnings including earnings loss per
share, or other financial items and a statement of future economic
performance, including any such statement contained in a discussion
and analysis of financial condition by the management, are
forward-looking statements.
A defendant is not liable if (1) the forward-looking statement is
identified and accompanied by meaningful cautionary language (2)
the forward-looking statement is immaterial or (3) the plaintiff
fails to prove that the forward-looking statement was made with
actual knowledge that it was false or misleading. Because the safe
harbor is written in the disjunctive, a forward-looking statement
is protected under the safe harbor if any of the three prongs
applies.
Here, the safe harbor applies via the third prong. As discussed
above, the Complaint does not adequately plead that Defendants had
actual knowledge that the financial projections were false or
misleading. Plaintiffs argue that Defendants must have known the
revenue projections were false and misleading because, by mid-2017,
Defendants knew that AT&T wanted to prioritize engagement over
monetization. The Complaint, however, alleges no facts that suggest
that prioritizing user engagement over monetization meant that
Defendants knew that that the projected revenues would never be
realized, rather than delayed.
Weaknesses in Internal Controls
The Complaint alleges that the Defendants' certifications pursuant
to SOX Section 302 contained actionable false and misleading
statements about Synacor's internal controls. Defendants' SOX
certifications stated, in part that, to the knowledge of the
certifying party, Synacor's financial statements were accurate, and
that Synacor had disclosed all significant deficiencies in internal
controls over financial reporting, and any fraud in connection with
financial reporting. These statements were false in light of the
auditors' March 16, 2018, adverse opinion on the Company's internal
control over financial reporting. However, any claim of fraud based
on these statements fails because the Complaint does not plausibly
plead scienter.
The PSLRA requires that a complaint alleging securities fraud state
with particularity facts giving rise to a strong inference that the
defendant acted with the required state of mind. This state of mind
requires a showing of intent to deceive, manipulate, or defraud, or
recklessness.
The Complaint does not sufficiently raise an inference of scienter
with respect to Defendants' SOX certifications. The auditors
identified three material weaknesses: (1) ineffective control
environment due to a lack of sufficient qualified personnel with an
appropriate level of knowledge and experience (2) ineffective
control activities due to the lack of timeliness in executing
business process controls and (3) ineffective monitoring controls
to ascertain whether the components of internal control were
present and functioning.
Accordingly, the Complaint fails to plead a claim as to the
statements related to weaknesses in internal controls.
Section 20(a) Violation
As the Court has granted Defendants' Motion to Dismiss Plaintiffs'
Section 10(b) claim, Defendants' motion to dismiss the Section
20(a) claim is granted.
Defendants' motion to dismiss is granted.
A full-text copy of the District Court's August 28, 2019 Opinion
and Order is available at https://tinyurl.com/y2dzv23x from
Leagle.com.
Chanoch Shreiber, Lead Plaintiff, represented by Melissa Ann
Fortunato -- fortunato@bespc.com -- Bragar, Eagel & Squire PC,
Marion Passmore -- passmore@bespc.com -- Bragar Eagel & Squire,
P.C., Jeremy Alan Lieberman -- jalieberman@pomlaw.com -- Pomerantz
LLP & Lawrence P. Eagel -- eagel@bespc.com -- Bragar, Eagel &
Squire P.C.
Scott D. Lefkowitz, individually and on behalf of all others
similarly situated, Plaintiff, represented by Brenda F. Szydlo --
bszydlo@pomlaw.com -- Pomerantz LLP, Joseph Alexander Hood, II --
ahood@pomlaw.com -- Pomerantz LLP, Marion Passmore, Bragar Eagel &
Squire, P.C., Jeremy Alan Lieberman, Pomerantz LLP & Lawrence P.
Eagel, Bragar, Eagel & Squire P.C.
Charles Romoff, Movant, represented by Phillip C. Kim --
pkim@rosenlegal.com -- The Rosen Law Firm P.A. & Erica Lauren Stone
-- estone@rosenlegal.com -- The Rosen Law Firm, P.A.
Chanoch Shreiber, Movant, represented by Jeremy Alan Lieberman,
Pomerantz LLP & Brenda F. Szydlo, Pomerantz LLP.
Synacor, Inc., Himesh Bhise & William J. Stuart, Defendants,
represented by Michael G. Bongiorno --
MICHAEL.BONGIORNO@WILMERHALE.COM -- Wilmer Cutler Pickering Hale
and Dorr LLP & Tamar Batya Kaplan-Marans --
TAMAR.KAPLAN-MARANS@WILMERHALE.COM -- Wilmer Cutler Pickering Hale
and Dorr LLP.
TEXAS ROADHOUSE: Roberson Seeks Minimum Wages for Restaurant Staff
------------------------------------------------------------------
TIFFANY N. ROBERSON, Individually, and on behalf of herself and all
other similarly situated current and former employees, the
Plaintiff, v. TEXAS ROADHOUSE MANAGEMENT CORP., Case No.
3:19-cv-00628-DJH (W.D. Ky., Sept. 4, 2019), seeks to recover
minimum wages and other damages owed to Plaintiff and other
similarly situated current and former tipped employees pursuant to
the Fair Labor Standards Act.
The Defendant has had a common plan, policy and practice of
compensating Plaintiff and those similarly situated under a
tip-credit compensation plan, consisting of compensating tipped
employees with only a sub-minimum wage hourly rate of pay and then
supposedly crediting tips received by them during their shifts
which, when added to the sub-minimum wage pay, would amount to at
least the FLSA required hourly rate of pay of at least $7.25.
The tipped employees include servers, waiters, waitresses and
bartenders who worked at Defendant's Texas Roadhouse restaurants at
any time during the applicable limitations period.
The Defendant owns and operates Texas Roadhouse branded restaurants
throughout the United States.[BN]
Attorneys for Plaintiffs on behalf of herself and similarly
situated current and former employees, are:
Lori Keen, Esq.
26 North 2 nd St.
Memphis, TN 38103
Telephone: (901) 527-4673
E-mail: lkeen@gwtclaw.com
- and -
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
JACKSON, SHIELDS, YEISER, HOLT
OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
rbryant@jsyc.com
TJM PROPERTIES: Faces Jocko et al. Suit in New York Supreme Court
-----------------------------------------------------------------
A class action lawsuit has been filed against TJM Syracuse, LLC, et
al. The case is captioned as JOCKO, TIARA, ON BEHALF OF HERSELF AND
OTHERS SIMILARLY SITUATED, the Plaintiff, vs. TJM SYRACUSE, LLC,
TJM PROPERTIES INC., RICHFIELD SYRACUSE HOTEL PARTNERS, LLC, AND
ANY OTHER RELATED ENTITIES, the Defendant, Case No. 2904569/2019
(N.Y. Sup., Aug. 26, 2019). The case is assigned to the Hon.
Anthony J. Paris.
TJM Properties provides real estate services. The company acquires,
manages, and develops properties including homes, hospitality,
assisted living, and other buildings.[BN]
Attorneys for the Plaintiff are:
Lloyd Ambinder, Esq.
40 Broad St. 7th Floor
New York, NY 10004
Telephone: (212) 943-9080
Attorneys for the Defendants are:
Clemente Parente, Esq.
JACKSON LEWIS, P.C.
677 Broadway 9th floor
Albany, NY 12207
Telephone: (518) 512-8700
TRUDERMA LLC: 9th Cir. Flips Bitton Suit Dismissal with Prejudice
-----------------------------------------------------------------
In the case, MICHAEL BITTON, on behalf of themselves and all others
similarly situated; BRIAN O'TOOLE, on behalf of themselves and all
others similarly situated; ROBERT SOKOLOVE, on behalf of themselves
and all others similarly situated, Plaintiffs-Appellants, v.
TRUDERMA, LLC, a Nevada limited liability company,
Defendant-Appellee, Case No. 17-56329 (9th Cir.), the U.S. Court of
Appeals for the Ninth Circuit vacated the district court's judgment
of complaint dismissal with prejudice, and remanded with
instructions to allow the Plaintiffs to amend their complaint.
In the original putative class action complaint in this action,
Plaintiffs Brian O'Toole, Robert Sokolove, and Bitton asserted
various state and federal claims against a series of the
Defendants. After the district court dismissed the complaint, the
Court affirmed in part and reversed in part, remanding for further
proceedings on several of the state law claims.
On remand, the Plaintiffs filed an amended complaint. The district
court again dismissed the complaint with prejudice, finding that
their claims all effectively sounded in fraud, and that under
Federal Rule of Civil Procedure 9(b), they were required to "plead
the who, what, when, where, why, and how of their claims." It
concluded that the "when" and "where" of the claims were not
pleaded with sufficient particularity because the operative
complaint did not allege when and where the Plaintiffs had
purchased the Defendants' products. The district court dismissed
the complaint with prejudice, despite the Plaintiffs' express
request for leave to amend if the court found any deficiencies in
the pleading.
While the appeal of that judgment was pending, a settlement was
reached between the Plaintiffs and all Defendants but Truderma,
LLC, and the appeal was dismissed as to those Defendants. The only
issue before the Court is whether the district court erred in
dismissing the claims against Truderma with prejudice.
The Court holds that it did. Federal Rule of Civil Procedure
15(a)(2) provides that when confronted with a request to amend a
pleading, a trial court should freely give leave when justice so
requires. In light of the underlying purpose of Rule 15 to
facilitate decision on the merits, rather than on the pleadings or
technicalities, the Court has stressed that Rule 15's policy of
favoring amendments to pleadings should be applied with 'extreme
liberality. ' The district court provided no reason for not
allowing amendment.
Given the settlement of the claims against the other Defendants,
the only issue is whether the Plaintiffs can allege where and when
they purchased Testofen-based products manufactured by Truderma.
It is not "apparent from the record" that they cannot. In these
circumstances, the Court holds that the outright refusal to grant
the leave without any justifying reason appearing for the denial is
not an exercise of discretion; it is merely abuse of that
discretion and inconsistent with the spirit of the Federal Rules.
The Court therefore vacated the judgment of dismissal and remanded
with instructions to allow the Plaintiffs to amend their complaint.
Each party will bear its own costs.
A full-text copy of the Court's Aug. 2, 2019 Memorandum is
available at https://is.gd/LhFU34 from Leagle.com.
U.S. BANK: Removes Diegert Case to Northern District of Florida
---------------------------------------------------------------
U.S. Bank National Association removed the case captioned as ALISHA
DIEGERT, on behalf of herself and all others similarly situated,
the Plaintiff, vs. U.S. BANK, N. A., the Defendant, Case No.
2019-CA-001239, from the Circuit Civil Court of the First Judicial
Circuit in and for Escambia County, Florida, to the United States
District Court for the Northern District of Florida on Aug. 26,
2019. The Northern District of Florida Court Clerk assigned Case
No. 3:19-cv-03297-TKW-EMT to the proceeding.
According to Ms. Diegert's complaint, U.S. Bank is the loan
servicer for Plaintiff's mortgage loan encumbering Plaintiff's real
property.
The Plaintiff alleges that U.S. Bank breached the mortgage and
violated the Florida Consumer Collection Practices Act and the
Florida Deceptive and Unfair Trade Practices Act, by charging
and/or collecting certain fees.
She seeks actual damages, statutory damages, and attorneys' fees
and costs, has reserved her right to amend her Complaint to add a
claim for punitive damages, and requests that U.S. Bank be ordered
not to alter, delete, or destroy any documents or records that
could be used to identify class member.[BN]
Counsel for the Plaintiff are:
James L. Kauffman, Esq.
BAILEY GLASSER LLP
1055 Thomas Jefferson Street, NW, Suite 540
Washington, DC 20007
E-mail: jkauffman@baileyglasser.com
- and -
Hassan Z. Zavareei, Esq.
Katherine M. Aizpuru, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street NW, Suite 1000
Washington, D.C. 20036
E-mail: hzavareei@tzlegal.com
kaizpuru@tzlegal.com
Attorneys for the Defendant are:
Thomas J. Cunningham, Esq.
LOCKE LORD LLP
777 South Flagler Drive
Suite 215 East Tower
West Palm Beach, FL 33401
Telephone: 561-833-7700
Facsimile: 561-655-8719
E-mail: TCunningham@lockelord.com
ULTA SALON: Court Denies Bid for Class Certification
----------------------------------------------------
In the class action lawsuit styled as Victoria Rowe, et al., the
Plaintiffs, vs. Ulta Salon, Cosmetics and Fragrance, Inc., et al.,
the Defendants, Case No. 2:19-cv-01074-PA-JC (C.D. Cal.), the Hon.
Judge Percy Anderson entered an order on Aug. 30, 2019, denying a
class of:
"all brand representatives that have worked in Ulta stores in
the state of California from four years prior to the filing of
the complaint to the date of preliminary approval or judgment,
whichever is earlier."
The Plaintiffs have failed to establish, by a preponderance of the
evidence, that they can meet Rule 23(b)(3)'s predominance
requirement. The Court therefore denies Plaintiffs' Motion for
Class Certification.[CC]
UNITED HEALTHCARE: Deal in Spinedex ERISA Suit Has Final Approval
-----------------------------------------------------------------
In the case, Spinedex Physical Therapy USA Incorporated, et al.,
Plaintiffs, v. United Healthcare of Arizona Incorporated, et al.,
Defendants, Case No. CV-08-00457-PHX-ROS (D. Ariz.), Judge Roslyn
O. Silver of the U.S. District Court for the District of Arizona
granted the the Motion for Final Approval of Class Action
Settlement, dated July 12, 2019.
On Aug. 1, 2019, the Court held a Final Settlement Hearing and is
satisfied that notice to the Settlement Class was provided in
accordance with the Court's Order preliminarily approving the
proposed settlement, conditionally certifying the settlement class,
setting form and content of notice to members of the settlement
class, and scheduling final settlement hearing, entered on Jan. 25,
2019.
The Court also has taken into account the fact that no objections
were submitted prior to the Final Settlement Hearing in accordance
with the provisions of the Preliminary Approval Order and the
presentations and other proceedings at the Final Settlement
Hearing, and has considered the Settlement in the context of all
prior proceedings conducted in the litigation.
Based on the submissions and proceedings referenced, Judge Silver
granted the Motion for Final Approval of Class Action Settlement,
and approved the Settlement as fair, adequate, reasonable, and in
the best interests of the Settlement Class.
Accordingly, pursuant to Rule 23(a) and (b)(3) of the Federal Rules
of Civil Procedure, the Judge unconditionally certified a class
(the Settlement Class) composed of: (i) all Decompression Therapy
service providers that provided Out-of-Network Decompression
Therapy Services to a Plan Member, submitted a claim for
reimbursement of those Decompression Therapy Services pursuant to
an assignment of benefits received from that Plan Member, and
received a Complete Claim Denial from any of the Released Parties
during the period from March 7, 2002 through April 24, 2019; and
(ii) all Plan Members who received Out-of-Network Decompression
Therapy Services, submitted a claim for reimbursement of those
Decompression Therapy Services (including, but not limited to,
through an authorized representative), and received a Complete
Claim Denial from any of the Released Parties during the period
from March 7, 2002 through April 24, 2019.
For purposes of the Settlement only, the Settling Plaintiffs are
certified as representatives of the Settlement Class and Settlement
Class Counsel is appointed the counsel to the Settlement Class,
with Garofolo & Ramsdell, LLP to serve as the lead counsel (and
Joseph A. Garofolo, Esq. appointed as the attorney to serve as the
lead counsel).
On the basis of its review of the foregoing and on the
presentations and other proceedings at the Final Settlement
Hearing, the Judge granted the Motion for Class Counsel's
Attorney's Fees, Expenses, and Service Awards. She awarded
attorney's fees to the Settlement Class Counsel in the aggregate
amount of $491,666, representing one third (331/3%) of the
Settlement Fund, $126,000 for costs and expenses requested by the
Settlement Class Counsel up to the date of the Final Order and
Judgment Date, and service awards to the Settling Plaintiffs in the
amount of $40,000 to Plaintiff Spinedex Physical Therapy, U.S.A.,
Inc. and $10,000 to Plaintiff Claude Aragon, all to be paid in
accordance with the provisions of the Settlement Agreement.
The Judge also approved the payment or reimbursement by the
Defendants directly to the Settlement Class Counsel of all
mediation fees invoiced by JAMS in accordance with the Settlement
Agreement. In accordance with the Settlement Agreement, she
further approved $153,780 to be paid to Heffler Claims Group as the
settlement administrator and additional fees, costs, and expenses
so that, absent further approval of the Court, the total paid to
Heffler does not materially exceed $175,801, all subject to review
by the counsel.
The Clerk of Court will enter a judgment dismissing all claims
against the remaining Defendants with prejudice.
A full-text copy of the Court's Aug. 2, 2019 Order is available at
https://is.gd/76MhBz from Leagle.com.
Spinedex Physical Therapy USA Incorporated, on behalf of itself as
assignee of plan participants, and on behalf of all other
similarly
situated participants, Claude Aragon, an individual, on his behalf
and on behalf of all other similarly situated plan participants
and
beneficiaries, Jack Adams, an individual, on his behalf and on
behalf of all other similarly situated plan participants and
beneficiaries & Arizona Chiropractic Society, an Arizona
non-profit
association, on behalf of its members, their patients, and all
other similarly situated health service providers, assignees, and
plan participants and beneficiaries, Plaintiffs, represented by
Joseph A. Creitz -- joe@creitzserebin.com -- Creitz & Serebin LLP,
Joseph A. Garofolo -- jgarofolo@garofololaw.com -- Garofolo &
Ramsdell LLP, Jennifer Lynn Kroll, Martin & Bonnett PLLC, Jon F.
Doyle, Garofolo & Ramsdell LLP & Susan Joan Martin, Martin &
Bonnett PLLC.
United Healthcare of Arizona Incorporated, an Arizona corporation
and an employee welfare benefit plan, United Health Group
Incorporated, a Minnesota corporation and an employee welfare
benefit plan, Abbott Laboratories Group Health Plan, an employee
welfare benefit plan assigned United Group No. 0704077, Acoustic
Technologies Incorporated Group Health Plan, an employee welfare
benefit plan assigned United Group No. 0296833, Adobe Drywall
Incorporated Group Health Pan, an employee welfare benefit plan
assigned United Group No. 0706107, Affiliated Cardiologists of
Arizona PC Group Health Plan, an employee welfare benefit plan
assigned United Group No. 60623, Art In Metal U.S.A. Group Health
Plan, an employee welfare benefit plan assigned United Group No.
0298866, Discount Tire Company Incorporated Group Health Plan, an
employee welfare benefit plan assigned United Group No. 0702649,
Downtown Tempe Community Incorporated Group Health Plan, an
employee welfare benefit plan assigned United Group No. 83172,
Faxwatch Incorporated Group Health Plan, an employee welfare
benefit plan assigned United Group No. 63545, General Motors
Corporation Group Health Plan, an employee welfare benefit plan
assigned United Group No. 0003200, Genuine Parts Company Group
Health Plan, an employee welfare benefit plan assigned United
Group
No. 0184109, Home Depot USA Incorporated Group Health Plan,
Medical
and Dental Plan, an employee welfare benefit plan assigned United
Group No. 0241714, Insight Enterprises Incorporated Group Health
Plan, an employee welfare benefit plan assigned United Group No.
0704208, ITC Manufacturing and Powder Coating Group Health Plan,
an
employee welfare benefit plan assigned United Group No. 0303821,
Martz Agency Group Health Plan, an employee welfare benefit plan
assigned United Group No. 0704217, MetLife Securities Incorporated
Group Health Plan, an employee welfare benefit plan assigned
United
Group No. 0193843, OldCastle Glass Incorporated Group Health Plan,
an employee welfare benefit plan assigned United Group No.
0702842,
Pfizer Incorporated Group Health Plan, an employee welfare benefit
plan assigned United Group No. 0183644, Qualex Incorporated Group
Health Plan, an employee welfare benefit plan assigned United
Group
No. 0213294, Quest Communications International Incorporated Group
Health Plan, an employee welfare benefit plan assigned United
Group
No. 0197313 and 0229050, Revlon Consumer Products Corporation
Group
Health Plan, an employee welfare benefit plan assigned United
Group
No. 0193160, Richard A. Bietz D.D.S. PC Group Health Plan, an
employee welfare benefit plan assigned United Group No. 83534,
Shamrock Foods Company Group Health Plan, an employee welfare
benefit plan assigned United Group No. 700560, Shasta Industries
Incorporated Group Health Plan, an employee welfare benefit plan
assigned United Group No. 22354, Sumco USA Corporation Group
Health
Plan, an employee welfare benefit plan assigned United Group No.
0703691, Temcon Concrete Construction Company Group Health Plan,
an
employee welfare benefit plan assigned United Group No. 0705175,
URS Corporation Group Health Plan, an employee welfare benefit
plan
assigned United Group No. 122841, Watson Williams Freight Agency
Incorporated Group Health Plan, an employee welfare benefit plan
assigned United Group No. 0313749, Wells Fargo & Company Group
Health Plan, an employee welfare benefit plan assigned United
Group
No. 0108000, United Healthcare Incorporated, a Delaware
corporation, United Healthcare Insurance Company, a Connecticut
corporation, United Healthcare Services Incorporated, a Minnesota
corporation & Pinnacle Engineering Incorporated, group health
plan,
an employee welfare benefit plan assigned United Group No. 321475,
Defendants, represented by Christopher R.J. Pace --
crjpace@jonesday.com -- Weil Gotshal & Manges LLP, Jared R.
Friedmann -- jared.friedman@weil.com -- Weil Gotshal & Manges LLP,
Jeffrey S. Klein -- Jeffrey.klein@weil.com -- Weil Gotshal &
Manges
LLP, Nicholas James Pappas, Weil Gotshal & Manges LLP, Reed
Lawrence Collins -- reed.collins@weil.com -- Weil Gotshal & Manges
LLP -- jwest@lrrc.com -- Lewis Roca Rothgerber Christie LLP.
UNITED STATES: Court Certifies Class in APA Suit
------------------------------------------------
In the case, O.A., et al., Plaintiffs, v. DONALD J. TRUMP, et al.,
Defendants. S.M.S.R. et al., Plaintiffs, v. DONALD J. TRUMP, et
al., Defendants, Civil Action Nos. 18-2718 (RDM), 18-2838 (RDM) (D.
D.C.), Judge Randolph D. Moss of the U.S. District Court for the
District of Columbia (i) granted in part and denied in part the
Plaintiffs' motions for summary judgment and class certification;
(ii) denied the Defendants' cross-motion; and (iii) denied as moot
the Plaintiffs' earlier-filed motions for temporary and preliminary
injunctive relief.
On Nov. 9, 2018, the Attorney General and the Secretary of Homeland
Security jointly issued an interim final rule adding a new
mandatory bar on eligibility for asylum for certain aliens who are
subject to a presidential proclamation suspending or imposing
limitations on their entry into the United States and who enter the
United States in contravention of such a proclamation. That same
day, the President issued a proclamation suspending for a period of
90 days the entry of any alien into the United States across the
international boundary between the United States and Mexico, except
by aliens who enter the United States at a port of entry and
properly present for inspection and entries by lawful permanent
residents of the United States.
Since that proclamation expired, the President has issued two
subsequent proclamations suspending entries across the southern
border, except at a port of entry, for additional 90-day periods.
It is uncontested that together, these actions make aliens (with
the sole exception of lawful permanent residents) ineligible for
asylum if they enter the United States from Mexico outside a
designated port of entry.
The Plaintiffs in these consolidated cases are nineteen individuals
from Honduras, El Salvador, Nicaragua, and Guatemala who entered
the United States from Mexico outside ports of entry after Nov. 9,
2018, and two non-profit organizations that provide legal services
to refugees. All but one of the individual pPlaintiffs seek
asylum, and the remaining Plaintiff was granted asylum during the
pendency of the proceeding but fears revocation if the Rule is
enforced. Together, the Plaintiffs challenge the lawfulness of the
Rule on multiple grounds.
First and foremost, they contend that the Rule runs afoul of the
Immigration and Nationality Act ("INA"), which declares that any
alien who is physically present in the United States or who arrives
in the United States (whether or not at a designated port of
arrival) irrespective of such alien's status, may apply for asylum.
In other words, aliens have a statutory right to seek asylum
regardless of whether they enter the United States at a designated
port of entry, and Defendants may not extinguish that statutory
right by regulation or proclamation.
Beyond that core challenge, the Plaintiffs also argue that the
Rule: (1) circumvents the statutorily-mandated process for
promulgating "additional limitations and conditions" on eligibility
for asylum, which authorizes the Attorney General and Secretary of
Homeland Security to add limitations and conditions "by
regulation," but does not authorize the President to do so by
proclamation; (2) violates the William Wilberforce Trafficking
Victims Protection Reauthorization Act ("TVPRA"), by depriving
unaccompanied children of the right to seek asylum in a
non-adversarial setting; (3) is "arbitrary and capricious" in
violation of the Administrative Procedure Act ("APA"); and (4) was
promulgated without the required opportunity for notice and public
comment, also in violation of the APA. Some of the Plaintiffs also
contend that the Rule violates the INA's expedited removal scheme
by mandating a negative credible fear determination for those
aliens who cross between ports of entry.
Several motions are currently before the Court. The Plaintiffs in
both consolidated cases -- O.A. v. Trump, Civ. No. 18-2718 ("O.A.")
and S.M.S.R. v. Trump, Civ. No. 18-2838 ("S.M.S.R.") -- have moved
for summary judgment and to certify a class of all asylum seekers
who entered or will enter the United States after Nov. 9, 2018 by
crossing the southern border, except at a designated port of entry.
The Defendants, in turn, oppose those motions and cross-move for
summary judgment, arguing that the Court lacks subject-matter
jurisdiction; that the Plaintiffs lack standing to sue; that the
Plaintiffs' claims fail on the merits; and that the Court should
not certify a class.
Also pending before the Court are the O.A. and S.M.S.R. Plaintiffs'
earlier-filed motions for temporary and preliminary injunctive
relief, which the Court held in abeyance after the United States
District Court for the Northern District of California issued a
nationwide preliminary injunction eliminating any risk of imminent
injury to any of the plaintiffs in these actions.
Judge Moss first holds that it has subject-matter jurisdiction, and
that the Plaintiffs have Article III and zone of interests standing
to challenge the Rule. He also holds that the Rule (in conjunction
with the Proclamation) is inconsistent with 8 U.S.C. Section 1158.
Those three conclusions end the required inquiry: Because the Rule
is contrary to law and must, as a result, be set aside, the Judge
need not consider the Plaintiffs' alternative legal challenges.
Nor need the Judge resolve the parties' dispute about the propriety
of nationwide injunctions.
As the D.C. Circuit has explained, when a reviewing court
determines that agency regulations are unlawful, the ordinary
result is that the rules are vacated -- not that their application
to the individual plaintiffs is proscribed. As a result, vacatur
-- i.e., nullification -- of the Interim Final Rule obviates any
need for the issuance of an injunction. Should future events
dictate otherwise, the Plaintiffs are free to return to the Court
to seek appropriate relief at that time. Finally, although it is
unclear that class certification will serve any significant purpose
given vacatur of the Rule, the Judge finds that the Plaintiffs have
met their burden under Rule 23(a) and Rule 23(b) (2) for
certification of a class.
For the reasons he set forth, Judge Moss (i) granted in part and
denied in part the Plaintiffs' motions for summary judgment and
class certification,and (ii) denied the Defendants' cross-motion.
The Judge also denied as moot the Plaintiffs' earlier-filed motions
for temporary and preliminary injunctive relief. A separate order
consistent with the Memorandum Opinion will issue.
A full-text copy of the Court's Aug. 2, 2019 Memorandum Opinion is
available at https://is.gd/vBCwtw from Leagle.com.
O.A., K.S., A.V., G.Z., D.S. & C.A., Plaintiffs, represented by Ana
C. Reyes -- areyes@wc.com -- WILLIAMS & CONNOLLY LLP, Thomas
Goodman Hentoff -- thentoff@wc.com -- WILLIAMS & CONNOLLY LLP,
Anwen Hughes, HUMAN RIGHTS FIRST, Charles L. Mccloud, Charles G.
Roth, NATIONAL IMMIGRANT JUSTICE CENTER, Eleni R. Bakst, HUMAN
RIGHTS FIRST, Ellen E. Oberwetter, WILLIAMS & CONNOLLY LLP, Gianna
Borroto, NATIONAL IMMIGRANT JUSTICE CENTER, Mary Beth
Hickcox-Howard, WILLIAMS & CONNOLLY LLP, Matthew David Heins,
WILLIAMS & CONNOLLY LLP, Patricia Stottlemyer, HUMAN RIGHTS FIRST,
Ruben Loyo, NATIONAL IMMIGRANT JUSTICE CENTER & Vanessa O.
Omoroghomwan -- vomoroghomwan@wc.com -- WILLIAMS & CONNOLLY LLP.
S.M.S.R. & CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, Plaintiffs,
represented by Craig Alan Hoover -- craig.hoover@hoganlovells.com
-- HOGAN LOVELLS, Elizabeth Hagerty --
elizabeth.hagerty@hoganlovells.com -- HOGAN LOVELLS US LLP, Justin
Bernick, HOGAN LOVELLS US LLP, Kaitlin Welborn, HOGAN LOVELLS US
LLP, pro hac vice, Mitchell Pearsall Reich, HOGAN LOVELLS US LLP,
pro hac vice, Neal Kumar Katyal, HOGAN LOVELLS US LLP, T. Clark
Weymouth, HOGAN LOVELLS US LLP, Thomas P. Schmidt, HOGAN LOVELLS US
LLP, pro hac vice, Zachary W.H. Best, HOGAN LOVELLS US LLP & Adina
Appelbaum, CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, pro hac
vice.
R.S.P.S., On behalf of themselves and all others similarly
situated, Plaintiff, represented by Craig Alan Hoover, HOGAN
LOVELLS, Elizabeth Hagerty, HOGAN LOVELLS US LLP, Justin Bernick,
HOGAN LOVELLS US LLP, Kaitlin Welborn, HOGAN LOVELLS US LLP, pro
hac vice, Mitchell Pearsall Reich, HOGAN LOVELLS US LLP, pro hac
vice, Neal Kumar Katyal, HOGAN LOVELLS US LLP, T. Clark Weymouth,
HOGAN LOVELLS US LLP, Zachary W.H. Best, HOGAN LOVELLS US LLP &
Adina Appelbaum, CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, pro hac
vice.
REFUGEE AND IMMIGRANT CENTER FOR EDUCATION AND LEGAL SERVICES,
INC., Plaintiff, represented by Craig Alan Hoover, HOGAN LOVELLS,
Elizabeth Hagerty, HOGAN LOVELLS US LLP, Justin Bernick, HOGAN
LOVELLS US LLP, Kaitlin Welborn, HOGAN LOVELLS US LLP, pro hac
vice, Mitchell Pearsall Reich, HOGAN LOVELLS US LLP, pro hac vice,
Neal Kumar Katyal, HOGAN LOVELLS US LLP, T. Clark Weymouth, HOGAN
LOVELLS US LLP, Zachary W.H. Best, HOGAN LOVELLS US LLP & Adina
Appelbaum, CAPITAL AREA IMMIGRANTS' RIGHTS COALITION, pro hac
vice.
L.C.V.R, C.S.C.C., R.G.G., N.A.G.A., A.J.A.C., A.J.E.A.M.,
K.P.P.V., R.D.P.V. & Y.A.L.P., Plaintiffs, represented by Justin
Bernick, HOGAN LOVELLS US LLP.
DONALD J. TRUMP, as President of the United States, MATTHEW G.
WHITAKER, as Acting Attorney General, KRISTJEN M. NIELSEN, as
Secretary of the Department of Homeland Security & JOHN LAFFERTY,
Asylum Division Chief, U.S. Citizenship and Immigration Services,
Defendants, represented by Erez Reuveni, UNITED STATES DEPARTMENT
OF JUSTICE, Joseph Anton Darrow, U.S. DEPARTMENT OF JUSTICE Civil
Division, Office of Immigration Litigation, Scott Grant Stewart,
U.S. DEPARTMENT OF JUSTICE, Christina Greer, US DEPARTMENT OF
JUSTICE, CIVIL DIVISION OFFICE OF IMMIGRATION LITIGATION, Kathryne
Marie Gray, U.S. DEPARTMENT OF JUSTICE, CIVIL DIVISION Office of
Immigration Litigation, District Court Section & Thomas Benton
York, UNITED STATES DEPARTMENT OF JUSTICE Office of Immigration
Litigation.
L. FRANCIS CISSNA, as Directory of United States Citizenship and
Immigration Services, Defendant, represented by Erez Reuveni,
UNITED STATES DEPARTMENT OF JUSTICE, Joseph Anton Darrow, U.S.
DEPARTMENT OF JUSTICE Civil Division, Office of Immigration
Litigation, Scott Grant Stewart, U.S. DEPARTMENT OF JUSTICE,
Christina Greer, US DEPARTMENT OF JUSTICE, CIVIL DIVISION OFFICE OF
IMMIGRATION LITIGATION, Kathryne Marie Gray, U.S. DEPARTMENT OF
JUSTICE, CIVIL DIVISION Office of Immigration Litigation, District
Court Section & Thomas Benton York, UNITED STATES DEPARTMENT OF
JUSTICE Office of Immigration Litigation.
KEVIN K. MCALEENAN, In his official capacity as Commissioner of
U.S. Customs and Border Protection, RONALD D. VITIELLO, In his
official capacity as Acting Director of Immigration and Customs
Enforcement, JAMES MCHENRY, In his official capacity as Director of
the Executive Office for Immigration Review, U.S. DEPARTMENT OF
JUSTICE, U.S. CITIZENSHIP AND IMMIGRATION SERVICES, U.S. CUSTOMS
AND BORDER PROTECTION, U.S. IMMIGRATION AND CUSTOM ENFORCEMENT,
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW & U.S. DEPARTMENT OF
HOMELAND SECURITY, Defendants, represented by Erez Reuveni, UNITED
STATES DEPARTMENT OF JUSTICE, Joseph Anton Darrow, U.S. DEPARTMENT
OF JUSTICE Civil Division, Office of Immigration Litigation, Scott
Grant Stewart, U.S. DEPARTMENT OF JUSTICE, Christina Greer, US
DEPARTMENT OF JUSTICE, CIVIL DIVISION OFFICE OF IMMIGRATION
LITIGATION, Kathryne Marie Gray, U.S. DEPARTMENT OF JUSTICE, CIVIL
DIVISION Office of Immigration Litigation, District Court Section &
Thomas Benton York, UNITED STATES DEPARTMENT OF JUSTICE Office of
Immigration Litigation.
OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES,
Amicus, represented by Patrick William Pearsall, JENNER & BLOCK LLP
& Vaishalee V. Yeldandi, JENNER & BLOCK LLP, pro hac vice.
PATICK J. LEAHY, Senator, RON WYDEN, Senator, SHELDON WHITEHOUSE,
Senator, RICHARD BLUMENTHAL, Senator, JEFF MERKLEY, CORY BOOKER,
Senator & KAMALA D. HARRIS, Senator, Amicuss, represented by Susan
Baker Manning, MORGAN, LEWIS & BOCKIUS LLP.
IMMIGRATION REFORM LAW INSTITUTE, Amicus, represented by Lawrence
J. Joseph, LAW OFFICE OF LAWRENCE J. JOSEPH.
UNITED STATES: Court Issues TRO in JOP Suit Over TVPRA Violations
-----------------------------------------------------------------
In the case, J.O.P, et al., Plaintiffs, v. U.S. DEPARTMENT OF
HOMELAND SECURITY et al., Defendants, Case No. GJH-19-1944 (D.
Md.), Judge George J. Hazel of the U.S. District Court for the
District of Maryland, Southern Division, granted the Plaintiffs'
Motion for a Temporary Restraining Order, which requests that the
Defendants' previous policies for unaccompanied children seeking
asylum be maintained until the Court may consider the new policy's
validity.
Plaintiffs J.O.P. (by and through next friend, G.C.P.), M.A.L.C.,
M.E.R.E., and K.A.R.C., on behalf of themselves and other similarly
situated individuals seeking asylum, filed a class action complaint
against Defendants U.S. Department of Homeland Security ("DHS"),
Kevin McAleenan in his official capacity as Acting Secretary of
DHS, U.S. Citizenship and Immigration Services ("USCIS") and
Kenneth Cuccinelli in his official capacity as Acting Director of
USCIS. The Plaintiffs challenge a new policy that changes the
rights held by unaccompanied children who are now seeking asylum.
In 2008, the Congress enacted the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 ("TVPRA"). The Act
extended legal protections to children who entered the United
States without a parent or other legal guardian and were determined
to be "unaccompanied alien children" ("UACs").
In a memorandum authored by Asylum Chief Ted Kim in May 2013 ("Kim
Memo"), USCIS implemented a policy of accepting jurisdiction of
asylum applications filed by individuals previously determined to
be UACs without having asylum officers make redeterminations
regarding the children's status. The Kim Memo came shortly after a
2012 report by the Citizenship and Immigration Services Ombudsman
recommended that USCIS implement the policy of not rescinding UAC
determinations. The Ombudsman concluded that eliminating the
practice of USCIS re-determining UAC status during the asylum
interview would also restore a level of fairness that comes from
having a predictable and uniform process.
Under the policy adopted by the Kim Memo, which was consistent with
the Ombudsman report's recommendations, asylum officers were
required to accept determinations by CBP and ICE regarding UAC
status even if an individual had turned 18 or been reunited with a
parent or guardian by the time he applied for asylum.
But on June 14, 2019, USCIS published a memorandum on its website
that changed the rules for determining whether a child is eligible
for TVPRA protections. The 2019 Redetermination Memo is dated May
31 2019, but was not made available on the USCIS website until June
14, 2019. The policy set forth in the Redetermination Memo became
effective on June 30, 2019.
Pursuant to the Redetermination Memo, all asylum officers are now
required to make independent factual inquiries in all cases in
order to determine whether the individual met the UAC definition on
the date of first filing the asylum application. Under the new
rules, an individual originally designated as a UAC who, perhaps
relying on the former policy, applied for asylum after reaching the
age of 18 or after being reunited with a parent or guardian, will
arrive at an asylum interview to find that USCIS must now decline
jurisdiction because of a redetermination that the applicant was
not a UAC at the time he filed an application.
The Plaintiffs came to the United States as children to escape
violence, abuse, or persecution in their home countries. They each
arrived in the United States as children without a parent or
guardian to care for them and the government determined them to be
UACs. Since arriving in the United States, the Plaintiffs have
each either turned 18 or been reunited with a parent or guardian.
However, because they were relying on USCIS' former policy of not
rescinding UAC status, the Plaintiffs did not file asylum
applications until after they had either been reunited with a
parent or guardian or attained the age of 18.
The Plaintiffs filed a Complaint challenging the implementation of
USCIS' redetermination policy as violating the Administrative
Procedure Act ("APA") and the Due Process Clause of the Fifth
Amendment of the United State Constitution on July 1, 2019. On
that date, they also moved for a Temporary Restraining Order.
The Court held a hearing on July 19, 2019 at which both parties had
an opportunity to be heard. At the hearing, the Defendants
conceded that the Plaintiffs are entitled to at least a limited
temporary restraining order ordering the Defendants to apply the
policies outlined in the 2013 Kim Memo to the four named Plaintiffs
and to avoid re-determining their UAC status.
The Plaintiffs seek temporary injunctive relief prohibiting the
Defendants from implementing the May 31, 2019 policy memo until the
Court has an opportunity to consider the policy's validity. The
purpose of a temporary restraining order ("TRO") or a preliminary
injunction is to protect the status quo and to prevent irreparable
harm during the pendency of a lawsuit, ultimately to preserve the
court's ability to render a meaningful judgment on the merits.
Judge Hazel finds that because the Plaintiffs are likely to succeed
on the merits of some of their APA claims -- claims relevant to
potential class members -- the Plaintiffs' request for a broader
injunction than the relief consented to by the Defendants is not
moot. There remains a controversy regarding whether the
redetermination policy should ultimately be set aside as violating
the APA -- a remedy that would resolve not only the named
Plaintiffs' claims but also the claims of those similarly situated
who the Plaintiffs seek to represent through a class action. In
this context,their request for preliminary injunctive relief beyond
that consented to by the Defendants is still proper. Having
resolved these threshold concerns, the Judge turns to the
Plaintiffs' likelihood of success on their specific claims.
The Judge finds that (i) even though the redetermination policy is
likely a legislative rule, the Defendants did not engage in the
notice-and-comment process, which would violate the APA; (ii) given
the agency's failure to do so, the Plaintiffs are likely to succeed
on their claim that the redetermination policy is arbitrary and
capricious in violation of the APA; (iii) the TVPRA neither
expressly authorizes nor expressly prohibits USCIS from rescinding
a determination that a child is a UAC; and (iv) the Plaintiffs need
only demonstrate that they are likely to succeed on the merits of
some of their claims, and they have done so.
Finally, the Judge finds that the there is no evidence in the
existing record that either the Defendants or the children applying
for asylum will be harmed by pressing pause on enforcing the
redetermination policy. But the Plaintiffs have shown that the new
policy will cause them harm. Thus, at this time, the balance of
the harms favors temporary injunctive relief.
For the foregoing reasons, Judge Hazel granted the Plaintiffs'
Motion for a Temporary Restraining Order. A separate Order will
issue.
A full-text copy of the Court's Aug. 2, 2019 Memorandum Opinion is
available at https://is.gd/qEIg6K from Leagle.com.
J.O.P., by and through Next Friend G.C.P., M.A.L.C., M.E.R.E. &
K.A.R.C., on behalf of themselves as individuals and on behalf of
others similarly situated., Plaintiffs, represented by Brian
Burgess -- bburgess@goodwinlaw.com -- Goodwin Procter LLp, Elaine
Blais -- eblais@goodwinlaw.com -- Goodwin Procter LLP, pro hac
vice, Kevin J. DeJong -- kdejong@goodwinlaw.com -- Goodwin Procter
LLP, pro hac vice, Kristen M. Jackson, Public Counsel, pro hac
vice, Mary Tanagho Ross, Public Counsel, pro hac vice, Michelle N.
Mendez, Catholic Legal Immigration Network, Inc., Rebecca Scholtz,
Catholic Legal Immigration Network Inc., pro hac vice, Sarah K.
Frederick -- sfrederick@goodwinlaw.com -- Goodwin Procter LLP, pro
hac vice, Scott Shuchart, Kids in Need of Defense, pro hac vice,
Stephen Shaw -- sshaw@goodwinlaw.com -- Goodwin Procter LLP, pro
hac vice & Wendy Wylegala -- nnarayan@supportkind.org -- Kids in
Need of Defense, pro hac vice.
U.S. Department of Homeland Security, Kevin McAleenan, in his
official capacity as Acting Secretary of Homeland Security, U.S.
Citizenship & Immigration Services & Kenneth Cuccinelli, in his
official capacity as Acting Director of U.S. Citizenship &
Immigration Services, Defendants, represented by Allen F. Loucks,
Office of the United States Attorney & Vickie LeDuc, US Attorney
Office.
UNITEDHEALTH GROUP: Manley Remanded to Wash. County Circuit Court
-----------------------------------------------------------------
In the case, DEBORAH MANLEY, on Behalf of Herself and All Others
Similarly Situated, Plaintiff, v. UNITEDHEALTH GROUP INC., et al.,
Defendants, Case No. 5:19-CV-05078 (W.D. Ark.), Judge P.K. Holmes,
III of the U.S. District Court for the Western District of
Arkansas, Fayetteville Division, (i) granted Manley's motion to
remand, and (ii) denied as moot the Defendants' motion to dismiss.
On March 13, 2019, Plaintiff Manley filed a complaint in Washington
County Circuit Court against UnitedHealth Group Inc., United
Healthcare Services, Inc., UnitedHealthcare, Inc., UnitedHealthcare
Insurance Co., UMR, Inc., UnitedHealthcare of Arkansas, Inc., John
Doe Corporations 1-10, and John Doe Entities 1-10. Manley is the
only named Plaintiff, but the complaint contains factual
allegations in support of a class action. No class has been
certified.
Manley alleges that the Defendants improperly collected subrogation
or reimbursement from her without first determining whether she had
been "made whole" by a settlement with a third-party. She alleges
that this practice by the Defendants violates Arkansas law which
requires an insurance company to make such a determination before
collecting subrogation or reimbursement. Manley seeks damages for
proceeds improperly collected by the Defendants as well as a
declaratory judgment that their practices are contrary to Arkansas
law.
The Defendants removed the action on April 17, 2019 pursuant to 28
U.S.C. Section 1331. They argue that Manley, on behalf of a
prospective class, seeks a declaration of rights that would impact
the payment of benefits under federal ERISA plans. Manley herself
does not have an ERISA plan. Instead, the Defendants contend that
nearly 44 members of the putative class are ERISA plan
participants. As such, they argue, the Court has federal question
jurisdiction over the action because ERISA completely preempts
Manley's state law claims.
Manley's motion to remand argues the Court is without subject
matter jurisdiction because Manley lacks standing to assert an
ERISA claim or, alternatively, that ERISA does not completely
preempt her state law claims.
Judge Holmes finds that Manley asserts only state law claims. She
argues that Arkansas' "made whole" doctrine requires that an
insurance provider verify whether an insured individual has been
made whole by a third-party settlement before seeking subrogation
or reimbursement. Whether the Defendants have complied with this
duty is a matter entirely independent of an ERISA plan. Rather,
this obligation is imposed by Arkansas law.
The Judge holds that the Defendants cite no term or policy in any
ERISA plan that imposes this obligation. Nor have they
demonstrated how the action exists only because of the existence of
an ERISA plan. In fact, it is undisputed that Manley is not an
ERISA plan participant. The mere fact that Manley may bring the
claim without being an ERISA plan participant demonstrates that
there need not be an ERISA plan to bring the action. Manley, like
the hospital in Marin, seeks only to remedy an alleged violation of
an obligation that is independent of any ERISA plan. Therefore,
Manley's claims fail to satisfy the second prong of Aetna Health
Inc. v. Davila.
The Judge also opines that there is little doubt that the
application of Arkansas' "made whole" doctrine may impact payments
between two parties bound by an ERISA plan. As he discussed, the
duty under the "made whole" doctrine is not imposed by the ERISA
plan. Any claim based on a violation of that duty would, at most,
"relate to" an ERISA plan, or more precisely the parties to an
ERISA plan. The Defendants are free to assert a conflict
preemption defense under Section 514 of ERISA in state court, but
conflict preemption does not provide a basis for federal question
jurisdiction. Because Manley's claims on behalf of potential
plaintiffs would not fall within the scope of Section 502(a), they
are not completely preempted by ERISA. Remand would therefore be
required even if Manley could assert an ERISA claim on behalf of
ERISA participants.
Based on the foregoin, Judge Holmes granted Manley's motion to
remand, and remanded the case to the Circuit Court of Washington
County. He denied as moot the Defendants' motion to dismiss.
A full-text copy of the Court's Aug. 6, 2019 Opinion and Order is
available at https://is.gd/YVNYAb from Leagle.com.
Deborah Manley, On Behalf of themselves and All Others Similarly
Situated, Plaintiff, represented by Bill D. Reynolds --
breynolds@justicetoday.com -- Caddell Reynolds PA, Joseph Henry
Bates, III, Carney Bates & Pulliam, PLLC, Randall K. Pulliam,
Carney Bates & Pulliam, PLLC, Tiffany Wyatt Oldham --
info@cbplaw.com -- Carney Bates & Pulliam, PLLC & William Gene
Horton, Nolan, Caddell & Reynolds, PA.
UnitedHealth Group Inc., United Healthcare Services, Inc.,
UnitedHealthCare Insurance Co., UMR, Inc., United Healthcare of
Arkansas & UnitedHealthCare, Inc., Defendants, represented by Eva
C. Madison -- emadison@littler.com -- Littler Mendelson, P.C., Noah
G. Lipschultz -- nlipschultz@littler.com -- Littler Mendelson P.C.
& Wesley E. Stockard -- wstockard@littler.com -- Littler
Mendelson.
UNIVERSAL TELEVISION: Removes Tippin Labor Case to C.D. Calif.
--------------------------------------------------------------
Universal Television, LLC removed the case captioned as PAUL TIPPIN
and FRED OSBY, individually and on behalf of all others similarly
situated, the Plaintiffs, vs. UNIVERSAL TELEVISION, LLC, a New York
Limited Liability Company; and DOE 1 through and including DOE 10,
the Defendants, Case No. 19STCV23315 (Filed July 5, 2019), from the
Superior Court of the State of California for the County of Los
Angeles to the United States District Court for the Central
District of California on Sep. 4, 2019. The Central District of
California Court Clerk assigned Case No. 2:19-cv-07643 to the
proceeding. The suit alleges violation of the California Labor
Code.
Universal Television operates as a television production company.
The Company produces television series for broadcast on the NBC
Universal owned networks.[BN]
Attorneys for the Defendant are:
Emma Luevano, Esq.
Stephen A. Rossi, Esq.
MITCHELL SILBERBERG & KNUPP LLP
2049 Century Park East, 18th Floor
Los Angeles, CA 90067-3120
Telephone: (310) 312-2000
Facsimile: (310) 312-3100
E-mail: eyl@msk.com
sar@msk.com
VEREIT INC: Class Settlement Reached in American Realty Class Suit
------------------------------------------------------------------
Vereit, Inc. said in its Form 8-K filing with the U.S. Securities
and Exchange Commission filed on September 9, 2019, that a
memorandum of agreement has been reached in the class action suit
entitled, In re American Realty Capital Properties, Inc.
Litigation, No. 1:15-mc-00040 (AKH).
On September 8, 2019, the Company signed a Memorandum of
Understanding ("MOU") providing for the settlement of the Class
Action entitled, In re American Realty Capital Properties, Inc.
Litigation, No. 1:15-mc-00040 (AKH) (the "Class Action MOU").
The Class Action settlement will resolve the claims by class
plaintiffs relating to the disclosures made by the Company in
October 2014 and March 2015 regarding its financial statements,
which included the Company's March 2015 restatement of certain of
its previously issued financial statements.
Pursuant to the terms of the Class Action MOU, certain defendants
have agreed to pay in the aggregate $1.025 billion, comprised of
contributions from the Company’s former external manager and its
principals (together the "Former Manager") totaling $225.0 million,
$12.5 million from the Company's former chief financial officer
(the "Former CFO"), $49.0 million from the Company's former
auditor, and the balance of $738.5 million from the Company.
The contributions from the Company's Former Manager and Former CFO
can be satisfied by a combination of (i) cash, (ii) limited partner
units of the Operating Partnership ("OP Units") held by the Former
Manager and the Former CFO, and (iii) amounts due related to the
dividends on such OP Units previously withheld from distribution.
The Company will contribute cash for such OP Units and dividends
used by the Former Manager and Former CFO to fund their
contributions. The contributions from the Company's Former Manager
are inclusive of the value of substantially all of the OP Units and
dividends surrendered to the Company in July 2019 as a result of a
settlement by the Former Manager and certain of its principals with
the Securities and Exchange Commission (the "SEC"), totaling
approximately $32.0 million, which was recorded in the Company's
quarterly report on Form 10-Q for the quarter ended June 30, 2019,
and for which cash will be contributed by the Company.
Pursuant to the Class Action MOU, the parties will negotiate in
good faith to execute definitive stipulations of settlement and
related documents to be filed with the court, which will not
contain any admission of liability, wrongdoing or responsibility by
any of the parties and will provide that upon final approval of the
Class Action settlement, the Class Action will be dismissed with
prejudice, with mutual releases by all parties. The Class Action
settlement is subject to court approval and is conditioned on
approval of the Derivative Action settlement.
On September 9, 2019, VEREIT, Inc. issued a press release
announcing that VEREIT, Inc. and VEREIT Operating Partnership, L.P.
(the "Operating Partnership" and, together with VEREIT, Inc.,
"VEREIT" or the "Company") entered into agreements to settle
certain outstanding litigation, including the pending class action
litigation, In re American Realty Capital Properties, Inc.
Litigation, No. 1:15-mc-00040 (AKH) (the "Class Action") and the
remaining opt out actions, Jet Capital Master Fund, L.P., et al. v.
American Realty Capital Properties, Inc., et al., No. 1:15-cv-00307
-AKH and Lakewood Capital Partners, LP v. American Realty Capital
Properties, Inc., et al., Index. No. 653676/2019, (together, the
"Opt Out Actions") at a cost to the Company of approximately $765.5
million, comprised of a contribution of $738.5 million toward the
Class Action settlement and $27.0 million toward the Opt Out Action
settlements.
Vereit, Inc. is a full-service real estate operating company which
owns and manages one of the largest portfolios of single-tenant
commercial properties in the U.S. The company is based in Phoenix,
Arizona.
WELLS FARGO: Class Action Settlement Notification Program Begins
----------------------------------------------------------------
A notification program began on August 12, 2019, as ordered by the
United States District Court for the Central District of California
(the "Court"), to alert consumers about a proposed class action
settlement in a lawsuit known as In re Wells Fargo Collateral
Protection Insurance Litigation, Case No. 8:17-ML-2797-AG-KES,
which is currently pending against Wells Fargo Bank, N.A. ("Wells
Fargo") and National General Insurance Company ("National General")
(collectively "Defendants").
The proposed settlement resolves a lawsuit originally filed on July
30, 2017, which alleges that between October 15, 2005 and September
30, 2016, Defendants unlawfully placed collateral protection
insurance ("CPI") policies on automobile loan accounts. CPI is a
type of insurance that Wells Fargo purchased from National General
to cover potential damage to vehicles that served as collateral for
Wells Fargo auto loans. The lawsuit alleges, among other things,
that the CPI policies that Defendants placed on Settlement Class
Members' accounts were duplicative, unnecessary, and overpriced.
Under the Settlement, Defendants will distribute at least $393.5
million to Settlement Class Members pursuant to an agreed-upon
"Settlement Allocation Plan" and "Settlement Distribution Plan."
The Settlement Class is defined as Wells Fargo Dealer Services
("WFDS") Customers who had a CPI Policy placed on their Account(s)
that became effective at any time between October 15, 2005 and
September 30, 2016 and Wells Fargo Auto Finance ("WFAF") Customers
who had a CPI Policy placed on their Account(s) that became
effective at any time between February 2, 2006 and September 1,
2011. The definition of "Class" and "Settlement Class" excludes
Non-Compensable Flat Cancels, as defined in Exhibit A to the
Settlement Agreement, which is available at
www.WellsFargoCPISettlement.com.
Notices will be sent to Settlement Class Members and are scheduled
to appear in a national online notice campaign leading up to a
hearing on October 28, 2019, when the Court will consider whether
to grant final approval to the settlement.
The Court has appointed the following law firms to represent the
Settlement Class: Baron & Budd, P.C. in Encino, California; Robins
Kaplan LLP in Los Angeles, California; Casey Gerry Schenk
Francavilla Blatt & Penfield, LLP in San Diego, California; Gibbs
Law Group LLP in Oakland California; Levin Sedran & Berman in
Philadelphia, Pennsylvania; and, Weitz & Luxenberg, P.C. in
Detroit, Michigan.
Those affected by this Settlement can ask to be excluded from, or
object to, the Settlement and its terms. The deadline for
exclusions and objections is October 7, 2019.
A toll-free number, 1-877-641-8815, has been established, along
with a website, www.WellsFargoCPISettlement.com, where important
case documents may be obtained. Those affected may also write to
Wells Fargo CPI Class Action Settlement, P.O. Box 4990, Portland,
OR 97208-4990 or send an email to info@WellsFargoCPISettlement.com.
[GN]
WOOLWORTHS: $100MM Shareholder Class Action to Proceed
------------------------------------------------------
Sue Mitchell, writing for Australian Financial Review, reports that
if only Norman Wills, Jane Danaher and other Woolworths
shareholders had held their nerve.
It's taken almost five years, but shares in Australia's largest
retailer have returned to levels before a $1 billion investment
into prices and service decimated profits and sent the stock
tumbling 40 per cent.
Woolworths shares have risen 24 per cent this year, reaching $35.90
on Tuesday, August 13, 2019, their highest level since October
2014, boosted by demand for defensive stocks amid turmoil on equity
markets.
While retail spending has been lacklustre, Woolworths is taking
share from Coles and Metcash, gaining traction in its turnaround of
Big W and preparing to merge and then spin off its hotel, gaming
and liquor businesses, which could trigger another big capital
return.
JP Morgan analyst Shaun Cousins expects Woolworths' same-store
sales to rise 4.4 per cent in the September quarter as the retailer
reaps the benefits of chief executive Brad Banducci's strategies on
convenience, digital and fresh foods, superior execution and less
demanding same-store sales growth from last year.
In contrast, Coles' same-store sales are expected to fall 0.8 per
cent as it cycles challenging 5.1 per cent growth in the year-ago
period, when sales were boosted by the successful Little Shop
promotion.
Nikko Asset Management fund manager Craig Young believes
Woolworths' share price rally has less to do with fundamentals and
more to do with a shift towards risk-free stocks amid growing
concerns about the strength of the economy and the impact of trade
wars.
"The big thematic that's driving the market is risk off -- anything
that's risk off is being priced accordingly," said Mr Young.
"You're seeing Woolworths and Coles being priced up because they're
defensive whereas specialty retailers are seen as being susceptible
to risk," he said.
However, Woolworths has not always been a risk-free investment --
just ask shareholders who saw billions of dollars wiped off the
company's market value following a series of profit downgrades in
2015.
'Breached obligations'
Shareholders led by Mr Wills and Ms Danaher who lost money when
Woolworths backed away from its 2014 profit guidance launched a
$100 million class action last September and are pressing ahead
with the claim, which is set down for a lengthy hearing next June.
The class action, through Maurice Blackburn, alleges Woolworths
breached its continuous disclosure obligations and engaged in
misleading conduct by telling investors in 2014 it could meet its
profit forecasts, only to back away from this guidance in 2015
after deciding to invest at least $500 million into reducing
grocery prices and improving service in stores.
The investments decimated supermarket profits and, combined with
mounting losses from Masters and deteriorating sales at BIG W, sent
Woolworths shares tumbling to a low of $22.50 in November 2015 from
$37.02 in August 2014.
A Maurice Blackburn spokesman said Woolworths' share price was
still below the level at the start of the class action claim
period.
"Even if it were at parity, a central point of these claims is that
the share price was inflated at that time because of the
non-disclosure, meaning shareholders still haven't been restored to
the position they should have been in had they purchased at the
legitimate value," the spokesman said.
"Of course the claim will include shareholders that sold out at a
loss . . . so the action isn't going away." [GN]
ZUMIEZ INC: Appeal in Herrera Class Action Ongoing
--------------------------------------------------
Zumiez Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on September 9, 2019, for the quarterly
period ended August 3, 2019, that the appeal in the class action
suit initiated by Alexia Herrera is ongoing.
A putative class action, Alexia Herrera, on behalf of herself and
all other similarly situated, v. Zumiez Inc., was filed against the
company in the Eastern District Count of California, Sacramento
Division under case number 2:16-cv-01802-SB in August 2016.
Alexandra Bernal filed the initial complaint and then in October
2016 added Alexia Herrera as a named plaintiff and Alexandra Bernal
left the case.
The putative class action lawsuit against the company alleges,
among other things, various violations of California's wage and
hour laws, including alleged violations of failure to pay reporting
time.
In May 2017 the company moved for judgment on the pleadings in that
plaintiff's cause of action for reporting-time pay should fail as a
matter of law as the plaintiff and the other putative class members
did not "report for work" with respect to certain shifts on which
the plaintiff's claims are based. In August 2017, the court denied
the motion.
However, in October 2017 the district court certified the order
denying the motion for judgment on the pleadings for immediate
interlocutory review by the United States Court of Appeals for the
Ninth Circuit.
The company then filed a petition for permission to appeal the
order denying the motion for judgment on the pleadings with the
United States Court of Appeals for the Ninth Circuit, which
petition was then granted in January 2018.
The company's opening appellate brief was filed on June 6, 2018 and
the plaintiff's answering appellate brief was filed August 6, 2018.
The company's reply brief to the Plaintiff's answering appellate
brief was filed on September 26, 2018 and oral arguments were
completed on February 4, 2019.
On May 20, 2019, the United States Court of Appeals for the Ninth
Circuit granted the company's motion for leave to file a
supplemental brief addressing new authority. On June 10, 2019, the
plaintiff's supplemental answering brief was filed with the United
States Court of Appeals for the Ninth Circuit. The company then
filed its supplemental reply brief to the plaintiff's supplemental
answering brief with the United States Court of Appeals for the
Ninth Circuit on June 24, 2019.
Zumiez said, "Given the current status of this case, we are unable
to express a view regarding the ultimate outcome or, if the outcome
is adverse, to estimate an amount, or range, of reasonably possible
loss. We have defended this case vigorously and will continue to do
so."
Zumiez Inc., founded in 1978, is a mall-based specialty retailer
providing sports-related apparel, footwear, equipment, and
accessories. It also sells miscellaneous novelties and dvds aimed
at young men and women between the ages of 12 and 24 and
private-label apparel. In addition, it sells merchandise on its Web
site, zumiez.com. The company is based in Everett, Washington.
[*] Filing Consumer Complaints, Redressal Faster Under New Bill
---------------------------------------------------------------
Suresh Misra, writing for Tribune India, reports that the Consumer
Protection Bill 2019 seeks to empower consumers in the era of
globalisation and information technology. In a fast-changing world,
where markets, products, services and end-users have undergone a
transformation, the Consumer Protection Act of 1986 had lost its
relevance. The complex grievance redress mechanism, too, had become
a conundrum for consumers.
In order to meet the contemporary challenges faced by consumers,
the new Bill was brought in to replace the outdated 1986 Act. The
Bill attempts to simplify the consumer justice system, providing
for speedy disposal of complaints.
Consumer Protection Authority
It seeks to set up an executive authority or regulator in the form
of Central Consumer Protection Authority to promote, protect and
enforce the rights of consumers. This body will be empowered to
investigate, recall, refund and impose penalties. It will regulate
matters related to violation of consumer rights, unfair trade
practices and misleading advertisements. There is also a class
action law suit to ensure that the rights of consumers are not
infringed upon.
The need for such an authority was long overdue with the abolition
of the Monopolies and Restrictive Trade Practices (MRTP)
Commission.
Penalty for misleading advertisements
A crucial area the body will regulate is misleading advertisements
that affect the safety and health of consumers.
Under the Bill, the manufacturer and endorser of such
advertisements are liable to pay a penalty of Rs 10 lakh and serve
a jail term of two years in the first instance. For repeat
offenders, the penalty is Rs 50 lakh and a jail term of five
years.
There has been apprehension regarding the provision, but the
objective is to ensure consumer safety. The provision will act as a
deterrent, ensuring both manufacturers and endorsers understand the
implications of misleading consumers.
Mediation cells
Another issue that the Bill seeks to address is the delay in
disposal of consumer complaints, something the 1986 Act failed to
resolve.
The new Bill, however, provides a way out of prolonged litigation
as parties can opt for mediation to resolve disputes at any stage
of proceedings. This will widen the scope of early settlement if
the parties agree. Mediation cells will be set up and attached to
commissions and parties cannot appeal once a dispute has been
resolved through mediation.
Product liability
The concept of product liability has also been defined in the Bill
and manufacturers and service providers will be held accountable
for any harm to consumers from defective products or deficient
services. This will ensure better-quality products and services to
consumers.
Nomenclature changed
The nomenclature of the Consumer Disputes Redressal Agencies has
been changed to bring about uniformity. The district forum will now
be known as District Commission. The pecuniary jurisdiction of the
commissions has also been enhanced. The District Commission will
entertain complaints where the value of goods and services does not
exceed Rs 1 crore, the State Commission up to Rs 10 crore and the
National Commission will entertain complaints exceeding Rs 10
crore.
File complaint from home
Another significant improvement is simplification of the process of
filing a complaint. A consumer now has the provision of e-filing
complaints. If the commission does not reject or admit a complaint
within 21 days, it is deemed to have been admitted. This will
enable commissions to start proceedings early.
Second stage of appeal
An important provision is that after the second stage of appeal,
further appeals will be entertained only on the question of law.
This will reduce prolonged litigation and fasten the pace of
finality of a complaint.
E-commerce complaints
E-commerce in India is growing at a fast pace, courtesy the
availability of a variety of products and services at discounted
prices and the convenience of the process.
However, of late, several complaints have been filed through the
National Consumer Helpline regarding non-refund of money, poor
quality products and services, unfair terms and contracts, fake
products, etc. Thus arose the need to regulate the sector in the
interest of consumers.
The new Bill provides that for the purpose of preventing unfair
trade practices in e-commerce, direct selling and also to protect
interests and rights of consumers, the Centre may take such
measures in the manner as may be prescribed. The Department of
Consumer Affairs has already brought out draft guidelines on
e-commerce known as e-Commerce Guidelines for Consumer Protection
2019.
These are guiding principles for e-commerce to prevent fraud and
unfair trade practices and protect the legitimate rights and
interests of consumers. These guidelines apply to
Business-to-Consumer e-Commerce, including goods and services,
which also include digital content products. These principles will
enable the e-commerce entities to ensure that the consumer is not
taken for a ride. [GN]
[*] Squire Patton Attorney Discusses TCPA Class Litigation
----------------------------------------------------------
Eric J. Troutman, Esq., of Squire Patton Boggs (US) LLP, in an
article for The National Law Review, reports that TCPA litigation
is big business. TCPA class lawyers make millions for the right
case and competition for good leads is fierce.
As Mr. Troutman has said many times, however, TCPA class litigation
is among the most complex and nuanced out there and pitfalls abound
both in pursuing and defending these actions. It is not just
high-end TCPA defense lawyers that are in hot demand, therefore,
but top TCPA class lawyers too find themselves wanted in more cases
than they can safely take on.
One class lawyer of relatively high repute is Keith Keogh. Although
he's had his run ins with a couple of courts -- the District of
Minnesota once found his client had "distort[ed]" the evidentiary
record in pursuing a certification motion, see Ung v. Universal
Acceptance Corp. 249 F. Supp. 3d 985, n. 3 (D. Minn. 2017) and his
engagement letter had to be modified before he could be approved as
class counsel in Lanteri v. Credit Protection Asst. -- he has also
successfully shepherded a number of TCPA class actions through to
successful resolutions including arguably the best (from
plaintiff's perspective) TCPA settlement in history. This makes his
involvement in TCPA class suits valuable for would-be class
representatives (and lawyers hoping to make a referral fee for is
efforts) and somewhat foreboding for defense lawyers hoping to
thwart certification in such actions.
But Keogh doesn't just jump blindly into cases that are brought to
him, as highlighted in the recent decision in Wexler v. AT&T Corp.,
15-CV-686 (FB)(PK), 2019 U.S. Dist. LEXIS 131869 (E.D.N.Y. Aug. 5,
2019).
Wexler has an extremely interesting procedural history. The case
was originally initiated as a putative class with Plaintiff's
husband serving as class counsel. That didn't last long, however,
as a class representative's husband should not serve as class
counsel owing to potential conflict of interest issues.
Nonetheless, when Mr. Wexler first withdrew as class counsel he
initially intended to seek recovery of fees on a quantum meruit
theory. That created its own nest of issues that eventually
resulted in him disclaiming any recovery to fees in a bid to avoid
potential conflict issues.
In the meantime, however, Wexler was working behind the scene with
Keogh on a potential engagement to bring him (Keogh) and another
lawyer -- Scott Owens -- into the suit to serve as class counsel.
According to the Court's analysis, there had been "close business
dealings between Mr. Wexler and [Keogh]" prior to this potential
engagement, however. Moreover, the original retainer agreement
(apparently) did not mention a specific cut coming back to Mr.
Wexler, but did assign a 40% cut of fee to Keogh. Although
Plaintiff and other potential class counsel executed this retainer
agreement, Keogh did not sign it. According to the Wexler decision,
this was because Keogh wanted to see if the Defendant would
successfully pursue arbitration before taking on representation in
the case. Interesting, no?
Plaintiff's apparent willingness to grant fees to Keogh despite his
decision to wait-and-see on the arbitration issue would ultimately
have a major impact on the court's analysis of her adequacy to
represent the class. In assessing the adequacy of Mrs. (Dr.) Wexler
to continue representing the class as Plaintiff in 2019, the court
noted that she had signed that retainer agreement in 2015 even
though Keogh had not yet agreed to represent the class and despite
the fact that she had never met him. As the court relates matters:
[t]he fact that Plaintiff would agree to give an interest in
attorneys' fees to someone who specifically declined to act as her
counsel creates the appearance that Plaintiff had a conflict of
interest, such that she would act to benefit those with financial
dealings with her husband over members of the class.
The court was also concerned that the original retainer agreement
did not make any mention of payment to Mr. Wexler for his fees in
the case although he still expected to recover fees. As the Court
views this matter, this fact alone demonstrates potential
misdealing: "there is no indication of how he was to be paid . . .
[this] gap creates an appearance that Mr. Wexler had a spoken or
unspoken side agreement with Mr. Giardina and Mr. Keogh." This
appearance was apparently heightened by deposition testimony in
which "Mr. Wexler testified that he expected to get a ‘reasonable
amount' of fees, but that he was not included in the 2015 Retainer
Agreement because 'it would raise more problems than it would
solve' in light of the potential adequacy issues."
A new retainer agreement was signed by Mrs. (Dr.) Wexler in 2016
that gave 50% of fees to Keogh and 50% to another Plaintiff's firm,
but that new agreement clearly reserved to Mr. Wexler the ability
to petition the court for a quantum meruit recovery. As noted
above, Mr. Wexler eventually disclaimed his right to any QM
recovery in the case -- apparently via a status report to the court
in 2018 -- in a bid to salvage his wife's adequacy to represent the
class. But it was too late:
In light of Mr. Wexler's close business relationships with
Plaintiff's current counsel, along with Plaintiff's actions and
inactions, the undersigned finds that a conflict of interest is
apparent between Plaintiff and class counsel, such that divided
loyalties impede her from monitoring counsel in this action.
Wow.
So there you have it TCPAWorld. A case that began with the
potential class being represented by the husband of the class
representative has hit the rocks of adequacy yet again. Keogh
wanted to sit on the sidelines and await the outcome of the initial
scuffle over arbitration but the class representative's willingness
to turn over fees to him despite his unwillingness to join the case
-- and apparently in blind reliance on her spouse's advice -- was
deemed to create an appearance of impropriety thwarting adequacy
given the "close business dealings" between her husband and Keogh.
[GN]
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