/raid1/www/Hosts/bankrupt/CAR_Public/191114.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, November 14, 2019, Vol. 21, No. 228
Headlines
A TEAM HOME: Mejia Seeks Overtime Pay for Construction Workers
ACCENTURE PLC: Data Security Breach Class Suit Ongoing
ACUITY BRANDS: Court Narrows Claims in N.D. Ga. Securities Suit
ADT LLC: Romero Suit Removed From Super. Ct. to N.D. California
AIR METHODS: Gretzinger Labor Suit Removed to S.D. Illinois
ALEPH OBJECTS: Ex-Employee Files Class Action Over Terminations
AMAZON.COM INC: Keller Labor Suit Transferred to W.D. Washington
AMAZON.COM SERVICES: Ponce Suit Transferred to W.D. Washington
AMERICAN PROPERTY: Ct. Narrows Claims in Barrios Suit, Remands Case
AMERICAN PSYCHIATRIC: Court Dismisses Endencia FTCA Suit
AMERICAN REALTY: January 21, 2020 Settlement Fairness Hearing Set
AMERICAN WATER: $5MM Accrued Liabilities in Chemical Spill Suit
AMERICAN WATER: Faces Bruce Class Action in Chattanooga
AMERICAN WATER: Sept. 2020 Trial Date in Water Main Break Suit
AMERISOURCEBERGEN: $260MM Settlement Reached in Ohio Opioid Case
AT&T CORP: Leave to File SAC in Wexler Case Denied
AUTOMATED PET: Henderson Seeks Overtime Wages Under FLSA & WWPCL
AXOS FINANCIAL: Appeal in Calif. Securities Class Suit Underway
BARCLAYS BANK: Court Dismisses SSA Bonds Antitrust Litigation
BARING BDC: Appeal in Triangle Capital Securities Suit Ongoing
BRIGADOON FITNESS: Ct. Denies Reconsideration of Class Cert. Denial
BROCKTON, MA: Dec. 2 Trial Set in Employment Discrimination Suit
BRUNCH LTD: Krzyzanowski Sues Over Improper Use of Tip Credits
CAJUN ENERGY: Baker Seeks to Certify FLSA Class
CARRIAGE FUNERAL: Faria Settlement Wins Final Approval
CASH CONVERTERS: Settles Class Action on Excessive Fees for $42.5MM
CBL CORP: Two Shareholder Class Actions Mulled in New Zealand
CENTOR INC: Faces Johnson Suit Over Unpaid Overtime Pay Under FLSA
CENTRAL TRANSPORT: Illegally Collects Biometrics, Gonzalez Claims
CHICAGO, IL: Faces Pinkston Suit Over Invalid Parking Tickets
CIOX HEALTH: Knipschield Fraud Suit Removed to E.D. Missouri
CITRUS, FL: Alexander, et al. Seek to Certify Class
COLONIAL FIRST: Slater and Gordon Files Class Action
COMMUNITY HEALTH: Bid to Appeal Class Certification Order Nixed
COMMUNITY HEALTH: Bid to Dismiss Kirk Class Action Pending
COMMUNITY HEALTH: Cyber Attack Claims Bar Date Expired
COMMUNITY HEALTH: Gibson Class Action Notice Approved
COMMUNITY HEALTH: Padilla Class Action Ongoing in Tennessee
COMMUNITY HEALTH: Trial in Zwick Partners Suit Set for July 2020
CONAGRA FOODS: Non-California Classes in Allen Suit Decertified
CONTINENTAL GENERAL: Fastrich Suit Settlement Gets Final Court Nod
DIEBOLD NIXDORF: Securities Class Suits Ongoing in NY and Ohio
DISCOVER FINANCIAL: B&R Supermarket Class Action Ongoing
DREAM TEAM: Puma Seeks Minimum & OT Wages for Restaurant Staff
EDISON INT'L: April Trial in Suit over Thomas & Koenigstein Fire
EDISON INT'L: Bellwether Trial in Woolsey Fire Litig. in July 2020
EQUIFAX: Used "Admin" as Password on Portal, Class Action Claims
FACEBOOK INC: Must Face $35BB Facial Recognition Suit in Illinois
FEDEX SUPPLY: Carmello Sues Over Collection of Biometric Data
FULL WHEEL: Lock Seeks Minimum Wages for Fitness Instructors
GARRISON PROPERTY: Philips Suit Moved to Northern Dist. of Alabama
GENDLIN & LIVERMAN: Certification of Two Classes Sought
GENERAL MOTORS: Defective Airbag Inflators Class Suits Ongoing
GENWORTH FINANCIAL: Agreement in Principle Reached in Skochin Suit
GENWORTH FINANCIAL: Awaits 11th Cir.'s Decision in TVPX ARX Suit
GENWORTH FINANCIAL: Burkhart Class Action Ongoing
GODIVA CHOCOLATIER: Thorne Sues Over Blind-Inaccessible Gift Cards
GOLD CARD: Faison Sues Over Unsolicited Marketing Messages
GRAND CANYON UNIV.: Teacher Diversity Program Halted Amid Lawsuit
HARGREAVES LANSDOWN: Class Action Lawyer Mulls Investor Lawsuit
HARRAH'S CASINO: Faces BIPA Class Action in Illinois
HERBALIFE NUTRITION: Still Defends Rodgers Class Action
HICKORY FOODS: Mag. Judge Recommends Approval of $16K Burkett Deal
HIGH OCTANE: French Suit Seeks Overtime Pay for Salespersons
HOMELAND SECURITY: Certification of CBP Detainees Class Sought
HP INC: Kiler Suit Transferred From E.D.N.Y. to N.D. California
HSBC BANK: Chambers Seeks Refund on Improper Charges and Fees
ICONIX BRAND: January 23, 2020 Settlement Fairness Hearing Set
ILLINOIS: Class Action Seeks to Seal Marijuana Convictions
iMOBILE LLC: Fails to Pay Store Managers' OT Wages, Fidelio Says
IOWA BOARD OF REGENTS: Myers FLSA Class Suit Removed to S.D. Iowa
JANUS HENDERSON: VelocityShares Class Suits Still Ongoing
JEFFERSON B. SESSIONS: Court Partly Granted Class Certification
JP MORGAN CHASE: Kawelo Files Suit in Hawaii
KANSAS CITY TREE: Prince FLSA Class Suit Transferred to D. Kansas
KIMGANAE INC: Hwangbo Seeks to Recover Minimum and Overtime Wages
KNOX COUNTY, TN: Has Until Dec. 19 to Respond to Pension Suit
LABCORP: Continues to Defend Billing, Data Breach Class Actions
LAUGH FACTORY: Haines Seeks Unpaid Wages for Cashiers
LE MAGASIN DE L'ENCRE: Advanced Sues Over Unsolicited Fax Ads
LEIDOS HOLDINGS: Settlement in NY Suit Has Initial Approval
LIBERTY MUTUAL: Faces Policyholders' Class Action
LIFE FOR RELIEF: Kempton TCPA Suit Moved to Michigan District Court
LOESTRIN 24: Court Explains Certification of Antitrust Suit
MAGIC TOUCH: Samuels Seeks to Recover Minimum and Overtime Wages
MARKEL CORP: Consolidated Class Suit in NY Voluntarily Dismissed
MASTERCARD INC: ATM Surcharge Fees Litigation Underway
MASTERCARD INC: Final Settlement Approval Hearing This Month
MASTERCARD INC: Point-of-Sale Acceptance Suit Ongoing in Canada
MASTERCARD INC: Shift Fraud Liability Suit Still Ongoing
MASTERCARD INC: TCPA Class Suit in Florida Remains Stayed
MDL 2913: JG v. JUUL Labs Over Sale of E-Cigarettes Consolidated
MDL 2913: McFaull v. JUUL Over Sale of E-Cigarettes Consolidated
MDL 2913: Montgomery v. JUUL Suit Over E-Cigarettes Consolidated
MDL 2913: Murphy v. JUUL Over Sale of E-Cigarettes Consolidated
MDL 2913: NC v. JUUL Over Sale of E-Cigarettes Consolidated
MDL 2913: Phillips v. JUUL Over Sale of E-Cigarettes Consolidated
MDL 2913: Quercia v. JUUL Over Sale of E-Cigarettes Consolidated
MDL 2913: R E v. JUUL Over Sale of E-Cigarettes Consolidated
MDL 5-02641: Ariz. Court Enters 2nd Suggestion of Remand & Transfer
MEDCARE STAFFING: Progressive Sues Over Unsolicited Facsimile Ads
MEJIA VASQUEZ: Fails to Pay Minimum Wages to Servers, Cruz Says
MICHAELS COMPANIES: Web Site Not Blind-Accessible, Matzura Says
MIZUHO BANK: Dec. 19 Settlement Fairness Hearing Set
MONDELEZ INT'L: Antitrust Suit over Wheat Prices Underway
MOVING SOLUTIONS: Bid to Certify Middle Rider Action Sought
MT ARTHUR COAL: Obtains Security for Costs vs. Litigation Funder
NCAA: Jones Sues Over Failure to Protect Student-Athletes' Health
NISOURCE INC: Final Settlement Approval Hearing Set for February
NORTH CAROLINA: Faces Class Action Over Solitary Confinement Use
NORTH MIAMI: Lopez Seeks Overtime Pay for Healthcare Workers
NOVARTIS PHARMACEUTICALS: Sawyer Sues Over Unsolicited Fax Ads
OREGON: Linn County Breach of Contract Class Action Ongoing
P&H 49 CORP: Peralta Seeks Minimum, OT Wages for Restaurant Staff
P.F. CHANG'S: Court Applies Kisor v. Wilkie in Class Action
PACIFIC THEATRES: Mendoza FCRA Suit Moved to C.D. California
PETMED EXPRESS: Awaits Court's Execution of Joint Proposed Decree
PETMED EXPRESS: Reid ADA Suit Concluded Following $8,500 Deal
POWERCOR: Dec. 9 Hearing Set in Bushfire Class Action
PRESIDIO INC: Class Suits Challenge BC Partners Merger Deal
PRICESMART INC: Amended Complaint in PERA Class Suit Due Dec. 6
PRICESMART INC: PERA Appointed Lead Plaintiff in Securities Suit
PUMA BIOTECHNOLOGY: January 28, 2020 Proof of Claim Deadline Set
REGIONAL MANAGEMENT: Medina Seeks OT Wages for Non-Exempt Workers
SABRINA DAVIS: Brown Seeks to Certify Class of Inmates
SAIC INC: January 8, 2020 Settlement Fairness Hearing Set
SAMSUNG ELECTRONICS: Court Certifies Settlement Class in Bronson
SANOFI-AVENTIS: Colon Sues Over Concealment of Zantac Defect
SCOTIABANK PUERTO: Ct. Enters Final Judgment Dismissing Maura Suit
SEDGWICK COUNTY, KS: Court Dismisses Taylor RICO Suit
SOUTHERN POWER: Interlocutory Appeal Filed in MCERS Initiated Suit
STEVENS TRANSPORT: Court Transfers Parr Action to N.D. Texas
SUPERIOR REAL ESTATE: Court Conditionally Certifies Class
TACO BELL: Faces Class Action in New Jersey Over Chalupa Prices
TESLA INC: Appeal in Investor Suit over Model 3 Production Ongoing
TESLA INC: Lead Counsel Selected in Twitter Post Litigation
TWITTER INC: Oral Argument in California Suit Set for Dec. 19
UBER TECH: Ct. Requests Info from Parties in Diva Limousine Case
UNITED PARCEL: Appeal in Hughes Wage-and-Hour Class Suit Underway
USA WATER: Mayall Seeks to Certify Class & Subclass
V & P ALTITUDE: Fails to Pay Laborers' OT Wages, Lipchenko Claims
WALGREENS: Still Faces Trial Unless Chain Joins Opioid Settlement
WELLCARE HEALTH: Clark & Seabaugh Suits Voluntarily Dismissed
WELLS FARGO: Perez, et al. Seek to Certify Classes & Subclasses
XPO PORT: Arrellano Seeks to Certify Class of Drivers
YAHOO INC: Borden Ladner Attorney Discusses Discovery Ruling
ZENDESK INC: Faces Reidinger Securities Suit in N.D. California
ZIONS BANCORP: Tucker & Ellis Attorneys Discuss Court Ruling
ZOVIO INC: Continues to Defend Stein Class Action
[*] Brockovich Pushes for Regulatory Reform to Fight Silicosis
*********
A TEAM HOME: Mejia Seeks Overtime Pay for Construction Workers
--------------------------------------------------------------
JOEL A. MURILLO MEJIA, individually and on behalf of all others
similarly situated, Plaintiff v. A TEAM HOME IMPROVEMENT, INC. and
RUDY ESTRADA, individually and in his official capacity,
Defendants, Case No. 2:19-cv-05987 (E.D.N.Y., Oct. 24, 2019), seeks
to recover unpaid overtime which the Defendants failed to pay in
violation of the Fair Labor Standards Act and the New York Labor
Law.
The Plaintiff's claims are brought as a collective action on behalf
of himself and on behalf of all other similarly situated persons
who were/are employed by the Defendants as roofers, manual
Construction Workers, and other similar manual laborer positions,
who were/are not paid overtime at a rate of one and one-half times
their regular rate of pay for all hours worked in excess of 40
hours per workweek for the period of three years prior to the date
of the filing of the complaint to the date of the final disposition
of this action.
The Plaintiff worked as an hourly roofer for the Defendants
starting in November 2015 until May 2018.
A Team Home Improvement Inc. is a New York corporation with a
principal place of business at 628 Hillside Court, in Uniondale,
New York. Rudy Estrada is the owner of ATeam. Estrada controlled
the operations and determined the policies and practices of ATeam,
including how employees are compensated.[BN]
The Plaintiff is represented by:
Andrea E. Batres, Esq.
BELL LAW GROUP, PLLC
100 Quentin Roosevelt Boulevard, Suite 208
Garden City, NY 11530
Telephone: 516.280.3008
Facsimile: 212.656.1845
E-mail: ab@belllg.com
ACCENTURE PLC: Data Security Breach Class Suit Ongoing
------------------------------------------------------
Accenture PLC said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on October 29, 2019, for the
fiscal year ended August 31, 2019, that the company continues to
defend a class action suit initiated by consumers of Marriott
International, Inc. related to the data security incident involving
unauthorized access to the reservations database of Starwood
Worldwide Resorts, Inc.
On July 24, 2019, Accenture was named in a putative class action
lawsuit filed by consumers of Marriott International, Inc. in the
U.S. District Court for the District of Maryland.
The complaint alleges negligence by the company, and seeks monetary
damages, costs and attorneys' fees and other related relief,
relating to a data security incident involving unauthorized access
to the reservations database of Starwood Worldwide Resorts, Inc.,
which was acquired by Marriott on September 23, 2016.
Since 2009, we have provided certain IT infrastructure outsourcing
services to Starwood.
Accenture said, "We believe the lawsuit is without merit and we
will vigorously defend it. We cannot reasonably estimate a range of
loss, if any, at this time."
Accenture PLC provides management and technology consulting
services and solutions. The Company delivers a range of specialized
capabilities and solutions to clients across all industries on a
worldwide basis. Accenture operates a network of businesses
provides consulting, technology, outsourcing, and alliances. The
company is based in Dublin, Ireland.
ACUITY BRANDS: Court Narrows Claims in N.D. Ga. Securities Suit
---------------------------------------------------------------
Acuity Brands, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on October 29, 2019, for
the fiscal year ended August 31, 2019, that the court has entered
an order granting the company's motion to dismiss in part and
dismissing all claims based on 42 of the 47 statements challenged
in the Consolidated Complaint in the case entitled, In re Acuity
Brands, Inc. Securities Litigation, Civil Action No.
1:18-cv-02140-MHC (N.D. Ga.).
On January 3, 2018, a shareholder filed a class action complaint in
the United States District Court for the District of Delaware
against the company and certain of its officers on behalf of all
persons who purchased or otherwise acquired the company's stock
between June 29, 2016 and April 3, 2017.
On February 20, 2018, a different shareholder filed a second class
action complaint in the same venue against the same parties on
behalf of all persons who purchased or otherwise acquired the
company's stock between October 15, 2015 and April 3, 2017.
The cases were transferred on April 30, 2018, to the United States
District Court for the Northern District of Georgia and
subsequently were consolidated as In re Acuity Brands, Inc.
Securities Litigation, Civil Action No. 1:18-cv-02140-MHC (N.D.
Ga.).
On October 5, 2018, the court-appointed lead plaintiff filed a
consolidated amended class action complaint (the "Consolidated
Complaint"), which supersedes the initial complaints. The
Consolidated Complaint is brought on behalf of all persons who
purchased the Company's common stock between October 7, 2015 and
April 3, 2017 and alleges that we and certain of our current
officers and one former executive violated the federal securities
laws by making false or misleading statements and/or omitting to
disclose material adverse facts that (i) concealed known trends
negatively impacting sales of our products and (ii) overstated our
ability to achieve profitable sales growth.
The plaintiffs seek class certification, unspecified monetary
damages, costs, and attorneys' fees.
The company disputes the allegations in the complaints and intend
to move to dismiss the Consolidated Complaint and to vigorously
defend against the claims. The company filed a motion to dismiss
the Consolidated Complaint.
On August 12, 2019, the court entered an order granting the
company's motion to dismiss in part and dismissing all claims based
on 42 of the 47 statements challenged in the Consolidated Complaint
but also denying the motion in part and allowing claims based on 5
challenged statements to proceed to discovery.
Acuity said, "Estimating an amount or range of possible losses
resulting from litigation proceedings is inherently difficult,
particularly where the matters involve indeterminate claims for
monetary damages and are in the stages of the proceedings where key
factual and legal issues have not been resolved. For these reasons,
we are currently unable to predict the ultimate timing or outcome
of or reasonably estimate the possible losses or a range of
possible losses resulting from the matters described above. We are
insured, in excess of a self-retention, for Directors and Officers
liability."
Acuity Brands, Inc. provides lighting and building management
solutions and services for commercial, institutional, industrial,
infrastructure, and residential applications in North America and
internationally. Acuity Brands, Inc. was founded in 2001 and is
headquartered in Atlanta, Georgia.
ADT LLC: Romero Suit Removed From Super. Ct. to N.D. California
---------------------------------------------------------------
ADT, LLC, removes the case captioned as CARLOS ROMERO, on behalf of
himself and others similarly situated, Plaintiff v. ADT, LLC; and
DOES 1 to 100, Inclusive, Defendants, Case No. RIG19030858 (Filed
Aug. 12, 2019), from the Superior Court of the State of California
for the County of Alameda to the U.S. District Court for the
Northern District of California on Oct. 24, 2019.
The Northern District of California Court Clerk assigned Case No.
4:19-cv-06975 to the proceeding.
The Plaintiff asserts that the Defendants failed to authorize or
permit meal periods and rest periods, failed to adequately
indemnify employees for employment-related losses/expenditures,
failed to provide complete and accurate wage statements, and failed
to timely pay all earned wages and final paychecks due at time of
separation of employment in violation of the California Labor
Code.
ADT Inc., formerly The ADT Corporation, is an American company that
provides residential, small and large business electronic security,
fire protection, and other related alarm monitoring services in
North America.[BN]
Defendant ADT, LLC, is represented by:
Lonnie D. Giamela, Esq.
Philip J. Azzara, Esq.
Rebecca S. King, Esq.
FISHER & PHILLIPS LLP
2050 Main Street, Suite 1000
Irvine, CA 92614
Telephone: (949) 851-2424
Facsimile: (949) 851-0152
E-mail: lgiamela@fisherphillips.com
pazzara@fisherphillips.com
rking@fisherphillips.com
AIR METHODS: Gretzinger Labor Suit Removed to S.D. Illinois
-----------------------------------------------------------
The lawsuit styled Michael Gretzinger, Angela Gretzinger, and all
others similarly situated v. AIR METHODS CORPORATION, Case No.
2019L001414, was removed from the Circuit Court of Madison County,
Illinois, to the U.S. District Court for the Southern District of
Illinois on Nov. 8, 2019.
The District Court Clerk assigned Case No. 3:19-cv-01233 to the
proceeding.
The Plaintiffs' Complaint asserts cause of action for: (1) a
violation of Illinois Minimum Wage Law, specifically failure to pay
overtime for all hours worked over forty hours in a week; and (2)
unjust enrichment.[BN]
The Plaintiffs are represented by:
Mark S. Schuver, Esq.
Deanna L. Litzenburg, Esq.
MATHIS, MARIFIAN & RICHTER, LTD
23 Public Square, Suite 300
P.O. Box 307
Belleville, IL 62220
Phone: (618) 234-9800
Fax: (618) 234-9786
Email: mschuver@mmrltds.com
dlitzenburg@mmrltds.com
hrogers@mmrltds.com
The Defendant is represented by:
Franklin Wolf, Esq.
FISHER & PHILLIPS LLP
10 South Wacker Drive, Suite 3450
Chicago, IL 60606
Phone: (312) 346-8061
Fax: (312) 346-3179
Email: fwolf@fisherphillips.com
ALEPH OBJECTS: Ex-Employee Files Class Action Over Terminations
---------------------------------------------------------------
Dan Maloney writing for Hackaday, reports that what's going on with
Lulzbot? Nothing good, if the reports of mass layoffs and employee
lawsuits are to be believed. Aleph Objects, the Colorado company
that manufactures the Lulzbot 3D printer, announced that they would
be closing down the business and selling off the remaining
inventory of products by the end of October. There was a reported
mass layoff on October 11, with 90 of its 113 employees getting a
pink slip. One of the employees filed a class-action suit in
federal court, alleging that Aleph failed to give 60 days notice of
terminations, which a company with more than 100 employees is
required to do under federal law. As for the reason for the
closure, nobody in the company's leadership is commenting aside
from the usual "streamlining operations" talk. Could it be that the
flood of cheap 3D printers from China has commoditized the market,
making it too hard for any manufacturer to stand out on features?
If so, we may see other printer makers go under too. [GN]
AMAZON.COM INC: Keller Labor Suit Transferred to W.D. Washington
----------------------------------------------------------------
The class action lawsuit styled as KIMBERLEE KELLER and TOMMY
GARADIS, Individually and On Behalf of All Others Similarly
Situated, Plaintiffs v. AMAZON.COM, INC.; AMAZON LOGISTICS, INC.;
and DOES 1 through 100, inclusive, Defendants, and Sean M Hoyt,
Jr., Interested Party, Case No. 3:17-cv-02219 (Filed Mar. 13,
2017), was transferred from the U.S. District Court for the
Northern District of California to the U.S. District Court for the
Western District of Washington (Seattle) on Oct 24, 2019.
The Western District of Washington Court Clerk assigned Case No.
2:19-cv-01719-JLR to the proceeding. The case is assigned to the
Hon. Judge James L. Robart.
The class action asserts causes of action under California state
law for failure to pay minimum wage and overtime, denial of
reimbursements for business-related expenses, denial of meal breaks
and rest periods, willful misclassification, unfair competition,
fraud, and trespass/conversion.
Amazon is in the business of delivering a variety of household
items, office supplies, tools, groceries, prepared food, and other
consumer goods. In order to deliver items to customers, Amazon uses
a fleet of delivery workers.[BN]
The Plaintiffs are represented by:
Jonathan Ellsworth Davis, Esq.
Julie C. Erickson, Esq.
Kevin M. Osborne, Esq.
Robert Stephen Arns, Esq.
Shounak Sanjeev Dharap, Esq.
THE ARNS LAW FIRM
515 Folsom Street 3rd Floor
San Francisco, CA 94105
Telephone: (415) 495-7800
Facsimile: (415) 495-7888
E-mail: jed@arnslaw.com
jce@arnslaw.com
kmo@arnslaw.com
ddl@arnslaw.com
ssd@arnslaw.com
The Defendants are represented by:
Amy A. McGeever, Esq.
Andrea Lynn Fellion, Esq.
Brian D. Fahy, Esq.
Christopher Banks, Esq.
John S. Battenfeld, Esq.
Theresa Mak, Esq.
MORGAN LEWIS & BOCKIUS
One Market Spear Street Tower
San Francisco, CA 94105
Telephone: (415) 442-1270
Facsimile: (415) 442-1001
E-mail: amy.mcgeever@morganlewis.com
andrea.fellion@morganlewis.com
brian.fahy@morganlewis.com
christopher.banks@morganlewis.com
jbattenfeld@morganlewis.com
Interested Party Sean M Hoyt, Jr., is represented by:
Steven M. Tindall, Esq.
GIBBS LAW GROUP LLP
505 14th Street, Suite 1110
Oakland, CA 94612
Telephone: (510) 350-9700
E-mail: smt@classlawgroup.com
AMAZON.COM SERVICES: Ponce Suit Transferred to W.D. Washington
--------------------------------------------------------------
The class action lawsuit styled as ADRIANA PONCE, on behalf of
herself and all others that are similarly situated, Plaintiff, and
Bernadean Rittmann, Intervenor-Plaintiff v. AMAZON.COM SERVICES,
INC., a Delaware Corporation; AMAZON LOGISTICS, INC., a Delaware
Corporation; ALAIN MONIE, a California Resident; JOHN BROWN, a
California Resident; WILLIAM GORDON, a California Resident; and
Does 1-100, inclusive, Defendants, and Kimberlee Keller and Tommy
Garadis, Interested Parties, Case No. 3:19-cv-00288 (Filed Nov. 1,
2018), was transferred from the U.S. District Court for the
Northern District of California to the U.S. District Court for the
Western District of Washington (Seattle) on Oct. 24, 2019.
The Western District of Washington Court Clerk assigned Case No.
2:19-cv-01718-RSL to the proceeding. The case is assigned to the
Hon. Judge Robert S. Lasnik.
The lawsuit alleges violation of labor-related laws.
Specifically, the Plaintiff alleges violations in seven causes of
action against the Defendants: Failure to Reimburse for Business
Expenses; Failure to Pay Minimum Wage; Failure to Provide Meal and
Rest Periods; Failure to Pay Overtime; Failure to Furnish Accurate
Wage Statements; Failure to Pay Wages When Due & Waiting Time
Penalties; and Violation of the Unfair Competition Law.
Amazon provides e-commerce services. The Company retails books,
diamond jewelry, electronics, appliances, apparels, and
accessories. Amazon Fulfillment Services distributes its products
worldwide.[BN]
The Plaintiff is represented by:
Adriana Ponce, Esq.
Mark E. Burton, Jr., Esq.
Nancy Hersh, Esq.
HERSH & HERSH
601 Van Ness Avenue, Suite 2056
San Francisco, CA 94102
Telephone: (415) 441-5544
E-mail: general@hershlaw.com
nhersh@hershlaw.com
The Intervenor-Plaintiff is represented by:
Bernadean Rittmann, Esq.
Shannon Liss-Riordan, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: sliss@llrlaw.com
The Defendants are represented by:
Amy A. McGeever, Esq.
Andrea Lynn Fellion, Esq.
Brian D Fahy, Esq.
John S Battenfeld, Esq.
Max Fischer, Esq.
MORGAN LEWIS & BOCKIUS
One Market Spear Street Tower
San Francisco, CA 94105
Telephone: (415) 442-1270
Facsimile: (415) 442-1001
E-mail: amy.mcgeever@morganlewis.com
andrea.fellion@morganlewis.com
brian.fahy@morganlewis.com
jbattenfeld@morganlewis.com
max.fischer@morganlewis.com
The Interested Parties are represented by:
Julie C. Erickson, Esq.
THE ARNS LAW FIRM
515 Folsom Street 3rd Floor
San Francisco, CA 94105
Telephone: (415) 495-7800
Facsimile: (415) 495-7888
E-mail: jce@arnslaw.com
AMERICAN PROPERTY: Ct. Narrows Claims in Barrios Suit, Remands Case
-------------------------------------------------------------------
The United States District Court for the Eastern District of
California, Fresno Division approved a stipulation and order in the
case captioned JESSICA BARRIOS, Plaintiff, v. AMERICAN PROPERTY
MANAGEMENT, INC. and DOES 1 through 10 inclusive, Defendants, Case
No. 1:18-cv-00352-AWI-SKO, (E.D. Cal.).
Plaintiffs filed a complaint alleging class and individual claims
against Defendant in the Superior Court of California for the
County of Stanislaus, Case No. 2028910 on February 9, 2018,
including claims for unlawful discrimination based on sex and
wrongful termination in violation of public policy. Defendant
removed Plaintiff's lawsuit to the United States District Court for
the Eastern District of California on approximately March 12, 2018
solely based on diversity jurisdiction under 28 U.S.C. Section 1332
and on the value of Plaintiff's individual claims, with the
remaining state law class claims being maintained through
supplemental jurisdiction pursuant to 28 U.S.C. Section 1367.
The Parties have met and conferred regarding these matters and
agreed that Plaintiffs' individual claims for unlawful retaliation,
unlawful discrimination based upon sex, and wrongful termination in
violation of public policy (Plaintiff's tenth, eleventh, and
twelfth causes of action) should be dismissed with prejudice. These
dismissed claims were the basis for satisfying the amount in
controversy requirements of original jurisdiction pursuant to 28
U.S.C. Section 1332.
The Parties have further agreed that supplemental jurisdiction of
the remaining state law claims should be denied pursuant to 28
U.S.C. Section 1367(c)(2)-(3), Rodriguez v. Emeritus Corp., 2018
U.S. Dist. LEXIS 151295 (E.D. Cal. 2018), and Ayala v. Infinity
Ins. Co., 2010 U.S. Dist. LEXIS 75591 (C.D. Cal. 2010) and that the
Court should remand the lawsuit back to the Superior Court of
California for the County of Stanislaus, Case No. 2028910.
The Court-approved stipulation provides that:
-- Plaintiff's tenth, eleventh, and twelfth causes of action are
dismissed with prejudice;
-- Pursuant to 28 U.S.C. Section 1367(c), having dismissed
Plaintiff's tenth, eleventh, and twelfth causes of
action, the Court declines supplemental jurisdiction of Plaintiffs'
remaining claims, which solely arise under state law;
-- This case is REMANDED back to the Stanislaus County Superior
Court, Case No. Case No. 2028910; and
-- The Clerk shall CLOSE this case and send a certified copy of
this Order to the clerk of the Stanislaus County Superior Court,
pursuant to 28 U.S.C. Section 1447(c).
A full-text copy of the District Court's October 7, 2019 Order is
available at https://tinyurl.com/y45mfrp3 from Leagle.com.
Jessica Barrios, individually and on behalf of all other similarly
situated, Plaintiff, represented by Brittany Victoria Berzin -
bberzin@shimodalaw.com - Shimoda Law Corp., Galen T. Shimoda -
attorney@shimodalaw.com - Shimoda Law Corp., Justin Paul Rodriguez
- jrodriguez@shimodalaw.com - Shimoda Law Corp, Shawnte V. Priest ,
Law Office of Thomas P. Hogan & Thomas P. Hogan , Law Office of
Thomas P. Hogan, 1275 W Main St, Box 1042, Ripon, CA, 95366-1550.
American Property Management, Inc., Defendant, represented by Derek
S. Sachs - Derek.Sachs@lewisbrisbois.com - Lewis Brisbois Bisgaard
& Smith.
AMERICAN PSYCHIATRIC: Court Dismisses Endencia FTCA Suit
--------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division issued Memorandum Opinion and Order
granting Defendants' Motion to Dismiss the case captioned FRANCES
ENDENCIA, Plaintiff, v. AMERICAN PSYCHIATRIC ASSOCIATION, DR.
STAFFORD HENRY, as Representative, and ILLINOIS DEPARTMENT OF
FINANCIAL AND PROFESSIONAL REGULATION, Defendants, Case No.
19-cv-3161, (N.D. Ill.).
Frances Endencia owned the Pampered Pet Veterinary Service, which
she says experienced multiple break-ins. According to Endencia's
complaint, after one such break-in, she contacted the police. At
the police department's recommendation, the Illinois Department of
Financial & Professional Regulation (IDFPR) required her to undergo
a psychiatric evaluation. The result of the evaluation was that
IDFPR suspended Endencia's veterinary license.
Endencia brings this suit against Defendants for violating the
Federal Trade Commission Act (Count I) and for negligent
misrepresentation (Count II).
Defendants moved to dismiss the complaint under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6).
Standard
A motion to dismiss tests the sufficiency of a complaint, not the
merits of the case. To survive a motion to dismiss under Rule
12(b)(6), the complaint must provide enough factual information to
state a claim to relief that is plausible on its face and raise a
right to relief above the speculative level. A court deciding a
Rule 12(b)(6) motion accepts plaintiff's well-pleaded factual
allegations as true and draws all permissible inferences in
plaintiff's favor.
IDFPR Immunity
IDFPR is immune from Endencia's lawsuit. IDFPR, as a state agency,
is an arm of the State for purposes of the Eleventh Amendment.
None of Endencia's allegations show that any exception to IDFPR's
immunity applies here. Illinois has not consented to suit in
federal court for the claims at issue. The FTCA does not abrogate
state immunity because, as explained below, there is no private
right of action under the FTCA.
The Ex parte Young doctrine, which allows state official to be sued
if plaintiff is requesting prospective equitable relief for ongoing
violations of law, does not apply because Endencia requests
monetary damages, not an injunction, and she does not allege an
ongoing violation of law. Ex parte Young, 209 U.S. 123, 159-60
(1908).
FTCA Violation (Count I)
Endencia alleges that Defendants violated the FTCA based on
deficiencies she claims exist in psychiatric tests and diagnostic
procedures and because those tests are not transparent.
Section 45(a) of the FTCA prohibits unfair methods of competition
and unfair or deceptive acts or practices in or affecting commerce.
However, as Defendants argue, the FTCA does not provide a private
right of action. Only the FTC may charge an entity with a violation
of the FTCA.
Therefore, the Court dismisses Count I with prejudice.
Negligent Misrepresentation (Count II)
In Count II, Endencia alleges that Defendants made negligent
misrepresentations. To adequately plead that claim, Endencia must
allege:
(1) A false statement of material fact (2) carelessness or
negligence in ascertaining the truth of the statement by the party
making it (3) an intention to induce the other party to act (4)
action by the other party in reliance on the truth of the statement
(5) damage to the other party resulting from such reliance and (6)
a duty on the party making the statement to communicate accurate
information.
Endencia states only that psychiatrists are negligent in informing
the public that the treatment they prescribe cause harm by mental
impairment. Her allegations do not identify any false statement of
material fact by any Defendant. Nor does she allege any of the
other elements of the claim.
The APA argues that even if Endencia adequately alleged a negligent
misrepresentation claim, that claim is time-barred. Under Illinois
law, a negligent misrepresentation claim must be brought within
five years of the date on which the cause of action accrued.
Plaintiff filed her Complaint in 2019, 13 years after receiving the
diagnosis and nearly 11 years after her veterinary license was
suspended.
Therefore Endencia's negligent misrepresentation claim is
time-barred.
Frances Endencia owned the Pampered Pet Veterinary Service, which
she says experienced multiple break-ins between 1999 and 2007.
According to Endencia's complaint, after one such break-in in 2005,
she contacted the police. At the police department's
recommendation, the Illinois Department of Financial & Professional
Regulation ("IDFPR") required her to undergo a psychiatric
evaluation. The result of the evaluation was that IDFPR suspended
Endencia's veterinary license.
Endencia brings this suit against Defendants for violating the
Federal Trade Commission Act (Count I) and for negligent
misrepresentation (Count II). Defendants moved to dismiss the
complaint under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). After the motions were fully briefed, Endencia filed
motions to amend her complaint and add defendants. For the reasons
explained below, the Court grants Defendants' motions to dismiss
[10] and [15], and denies Endencia's motions for leave to amend and
add defendants [28] and [29].
For these reasons, Defendants APA's and IDFPR's motions to dismiss
are granted. Plaintiff Endencia's motions for leave to amend and
add defendants are denied. The case is dismissed with prejudice.
Status hearing set for 10/10/19 was stricken. The court directed
the Clerk to enter judgment and terminate the civil case.
A full-text copy of the District Court's October 7, 2019 Memorandum
Opinion and Order is available at https://tinyurl.com/y2fjp95q
from Leagle.com.
Frances Endencia, Dr., DVM & on behalf of others similarly
situated, Plaintiff, pro se.
American Psychiatric Association, Defendant, represented by
Christine Elizabeth Skoczylas , Barnes & Thornburg LLP, One North
Wacker DriveSuite 4400Chicago, IL 60606- 283
IDFPR, Defendant, represented by Hal Dworkin , Office Of Illinois
Attorney General & Sunil Shashikant Bhave , Illinois Attorney
General
AMERICAN REALTY: January 21, 2020 Settlement Fairness Hearing Set
-----------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP issued a statement regarding the
American Realty Capital Properties, Inc. (ARCP) Securities
Litigation:
SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION
ALL PERSONS AND ENTITIES THAT PURCHASED OR OTHERWISE ACQUIRED THE
COMMON STOCK, PREFERRED STOCK, OR DEBT SECURITIES OF AMERICAN
REALTY CAPITAL PROPERTIES, INC. ("ARCP", NOW KNOWN AS VEREIT, INC.)
OR ARC PROPERTIES OPERATING PARTNERSHIP, L.P. (NOW KNOWN AS VEREIT
OPERATING PARTNERSHIP, L.P.) ("ARCP SECURITIES") DURING THE PERIOD
BETWEEN FEBRUARY 28, 2013 AND OCTOBER 29, 2014 (THE "CLASS
PERIOD")
THIS NOTICE WAS AUTHORIZED BY THE COURT. IT IS NOT A LAWYER
SOLICITATION. PLEASE READ THIS NOTICE CAREFULLY AND IN ITS
ENTIRETY.
YOU ARE HEREBY NOTIFIED that a hearing will be held on
January 21, 2020, at 11:00 a.m., before the Honorable Alvin K.
Hellerstein at the Daniel Patrick Moynihan United States
Courthouse, 500 Pearl Street, New York, NY 10007, to determine
whether: (1) the proposed settlement (the "Settlement") of the
above-captioned action as set forth in the Stipulation of
Settlement ("Stipulation")1 for $1,025,000,000.00 in cash should be
approved by the Court as fair, reasonable and adequate; (2) the
Judgment as provided under the Stipulation should be entered
dismissing the Litigation with prejudice; (3) to award Lead Counsel
attorneys' fees and costs, charges and expenses out of the
Settlement Fund (as defined in the Notice of Proposed Settlement of
Class Action ("Notice"), which is discussed below) and, if so, in
what amounts; (4) to pay Plaintiffs for their costs and expenses in
representing the Class out of the Settlement Fund and, if so, in
what amount; and (5) the Plan of Allocation should be approved by
the Court as fair, reasonable and adequate.
IF YOU PURCHASED OR ACQUIRED ARCP SECURITIES BETWEEN FEBRUARY 28,
2013 AND OCTOBER 29, 2014, YOUR RIGHTS MAY BE AFFECTED BY THE
SETTLEMENT OF THIS LITIGATION.
To share in the distribution of the Settlement Fund, you must
establish your rights by submitting a Proof of Claim and Release
form by mail (postmarked no later than January 23, 2020) or
electronically (no later than January 23, 2020). Your failure to
submit your Proof of Claim and Release by January 23, 2020, will
subject your claim to rejection and preclude your receiving any of
the recovery in connection with the Settlement of this Litigation.
If you are a Member of the Class and did not timely and validly
request exclusion therefrom in accordance with the requirements set
forth by the Court in connection with the Notice of Pendency of
Class Action, you will be bound by the Settlement and any judgment
and release entered in the Litigation, including, but not limited
to, the Judgment, whether or not you submit a Proof of Claim and
Release.
If you have not received a copy of the Notice, which more
completely describes the Settlement and your rights thereunder
(including your right to object to the Settlement), and a Proof of
Claim and Release, you may obtain these documents, as well as a
copy of the Stipulation and other settlement documents, online at
www.ARCPSecuritiesLitigation.com, or by writing to:
ARCP Securities Litigation
c/o Gilardi & Co. LLC
P.O. Box 43434
Providence, RI 02940-3434
Inquiries should NOT be directed to Defendants, the Court, or the
Clerk of the Court.
Inquiries, other than requests for the Notice or for a Proof of
Claim and Release, may be made to a representative of Lead
Counsel:
ROBBINS GELLER RUDMAN & DOWD LLP
Rick Nelson
c/o Shareholder Relations
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 800/449-4900
IF YOU ARE A CLASS MEMBER, YOU HAVE THE RIGHT TO OBJECT TO THE
SETTLEMENT, THE PLAN OF ALLOCATION, THE REQUEST BY LEAD COUNSEL FOR
AN AWARD OF ATTORNEYS' FEES AND EXPENSES AND/OR THE AWARDS TO
PLAINTIFFS PURSUANT TO 15 U.S.C. Sec.78u-4(a)(4) IN CONNECTION WITH
THEIR REPRESENTATION OF THE CLASS. ANY OBJECTIONS MUST BE FILED
WITH THE COURT AND SENT TO LEAD COUNSEL AND ARCP'S COUNSEL BY
DECEMBER 31, 2019, IN THE MANNER AND FORM EXPLAINED IN THE NOTICE.
DATED: October 4, 2019
BY ORDER OF THE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AMERICAN WATER: $5MM Accrued Liabilities in Chemical Spill Suit
---------------------------------------------------------------
American Water Works Company, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 30,
2019, for the quarterly period ended September 30, 2019, that $5
million of the aggregate settlement amount of $126 million has been
reflected in accrued liabilities related to the West Virginia Elk
River Freedom Industries Chemical Spill.
On June 8, 2018, the U.S. District Court for the Southern District
of West Virginia granted final approval of a settlement class and
global class action settlement for all claims and potential claims
by all putative class members arising out of the January 2014
Freedom Industries, Inc. chemical spill in West Virginia.
The effective date of the Settlement was July 16, 2018.
Under the terms and conditions of the Settlement, West
Virginia-American Water Company ("WVAWC") and certain other Company
affiliated entities (collectively, the "West Virginia-American
Water Defendants") did not admit, and will not admit, any fault or
liability for any of the allegations made by the West Virginia
Plaintiffs in any of the actions that were resolved.
Under federal class action rules, claimants had the right, until
December 8, 2017, to elect to opt out of the final Settlement. Less
than 100 of the estimated 225,000 putative class members elected to
opt out from the Settlement, and these claimants will not receive
any benefit from or be bound by the terms of the Settlement.
In June 2018, the Company and its remaining non-participating
general liability insurance carrier settled for a payment to the
Company of $20 million, out of a maximum of $25 million in
potential coverage under the terms of the relevant policy, in
exchange for a full release by the West Virginia-American Water
Defendants of all claims against the insurance carrier related to
the Freedom Industries chemical spill.
The aggregate pre-tax amount contributed by WVAWC of the $126
million Settlement with respect to the Company, net of insurance
recoveries, is $19 million.
As of September 30, 2019, $5 million of the aggregate Settlement
amount of $126 million has been reflected in accrued liabilities,
and $5 million in offsetting insurance receivables has been
reflected in other current assets on the Consolidated Balance
Sheets.
The amount reflected in accrued liabilities as of September 30,
2019 reflects $20 million of reductions in the liability during the
first nine months of 2019, $16 million of which was also recorded
as reductions to the offsetting insurance receivable reflected in
other current assets. The Company has funded WVAWC's contributions
to the Settlement through existing sources of liquidity.
American Water Works Company, Inc., through its subsidiaries,
provides water and wastewater services in the United States and
Canada. The company was founded in 1886 and is headquartered in
Camden, New Jersey.
AMERICAN WATER: Faces Bruce Class Action in Chattanooga
-------------------------------------------------------
American Water Works Company, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 30,
2019, for the quarterly period ended September 30, 2019, that the
company faces a putative class action suit entitled, Bruce, et al.
v. American Water Works Company, Inc., et al.
On September 12, 2019, Tennessee-American Water Company, a wholly
owned subsidiary of the Company, experienced a break of a 36-inch
water transmission main, which caused service fluctuations or
interruptions to TAWC customers and the issuance of a boil water
notice. TAWC repaired the main break by early morning on September
14, 2019, and restored full water service by the afternoon on
September 15, 2019, with the boil water notice lifted for all
customers on September 16, 2019.
On September 17, 2019, a putative class action complaint captioned
Bruce, et al. v. American Water Works Company, Inc., et al. was
filed in the Circuit Court of Hamilton County, Tennessee against
TAWC, the Company and American Water Works Service Company, Inc., a
wholly owned subsidiary of the Company (collectively, the
"Tennessee-American Water Defendants"), on behalf of a putative
class of individuals or entities who lost water service or suffered
monetary losses as a result of the Chattanooga main break (the
"Tennessee Plaintiffs").
The complaint alleges breach of contract and negligence against the
Tennessee-American Water Defendants, as well as an equitable remedy
of piercing the corporate veil. The Tennessee Plaintiffs seek an
award of unspecified alleged damages for wage losses, business and
economic losses, out-of-pocket expenses, loss of use and enjoyment
of property and annoyance and inconvenience, as well as punitive
damages, attorneys' fees and pre- and post-judgment interest.
The Tennessee-American Water Defendants believe that they have
meritorious defenses to the claims raised in this class action
complaint, and they intend to vigorously defend themselves against
these allegations. The Company cannot currently estimate the amount
of any reasonably possible loss or a range of such losses related
to this proceeding.
American Water Works Company, Inc., through its subsidiaries,
provides water and wastewater services in the United States and
Canada. The company was founded in 1886 and is headquartered in
Camden, New Jersey.
AMERICAN WATER: Sept. 2020 Trial Date in Water Main Break Suit
--------------------------------------------------------------
American Water Works Company, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 30,
2019, for the quarterly period ended September 30, 2019, that a
September 21, 2020 trial date in the Dunbar, West Virginia Water
Main Break Class Action Litigation has been set.
On the evening of June 23, 2015, a 36-inch pre-stressed concrete
transmission water main, installed in the early 1970s, failed. The
water main is part of West Virginia-American Water Company's
(WVAWC's) West Relay pumping station located in the City of Dunbar.
The failure of the main caused water outages and low pressure for
up to approximately 25,000 WVAWC customers.
In the early morning hours of June 25, 2015, crews completed a
repair, but that same day, the repair developed a leak. On June 26,
2015, a second repair was completed and service was restored that
day to approximately 80% of the impacted customers, and to the
remaining approximately 20% by the next morning.
The second repair showed signs of leaking, but the water main was
usable until June 29, 2015 to allow tanks to refill. The system was
reconfigured to maintain service to all but approximately 3,000
customers while a final repair was completed safely on June 30,
2015. Water service was fully restored by July 1, 2015 to all
customers affected by this event.
On June 2, 2017, a putative class action complaint captioned
Jeffries, et al. v. West Virginia-American Water Company was filed
in West Virginia Circuit Court in Kanawha County on behalf of a
purported class of residents and business owners who lost water
service or pressure as a result of the Dunbar main break.
The complaint alleges breach of contract by WVAWC for failure to
supply water, violation of West Virginia law regarding the
sufficiency of WVAWC’s facilities and negligence by WVAWC in the
design, maintenance and operation of the water system. The Jeffries
plaintiffs seek unspecified alleged damages on behalf of the class
for lost profits, annoyance and inconvenience, and loss of use, as
well as punitive damages for willful, reckless and wanton behavior
in not addressing the risk of pipe failure and a large outage.
In October 2017, WVAWC filed with the court a motion seeking to
dismiss all of the Jeffries plaintiffs' counts alleging statutory
and common law tort claims. Furthermore, WVAWC asserted that the
Public Service Commission of West Virginia, and not the court, has
primary jurisdiction over allegations involving violations of the
applicable tariff, the public utility code and related rules.
On May 30, 2018, the court, at a hearing, denied WVAWC's motion to
apply the primary jurisdiction doctrine, and on October 11, 2018,
the court issued a written order to that effect. On February 21,
2019, the court issued an order denying WVAWC's motion to dismiss
the Jeffries plaintiffs’ tort claims. On August 21, 2019, the
court set a procedural schedule in this case, including a trial
date of September 21, 2020. Discovery in this case is ongoing.
The Company and WVAWC believe that WVAWC has valid, meritorious
defenses to the claims raised in this class action complaint. WVAWC
is vigorously defending itself against these allegations. The
Company cannot currently estimate the amount of any reasonably
possible loss or a range of such losses related to this
proceeding.
On August 21, 2019, the court set a procedural schedule in this
case, including a trial date of September 21, 2020. Discovery in
this case is ongoing.
American Water Works Company, Inc., through its subsidiaries,
provides water and wastewater services in the United States and
Canada. The company was founded in 1886 and is headquartered in
Camden, New Jersey.
AMERISOURCEBERGEN: $260MM Settlement Reached in Ohio Opioid Case
----------------------------------------------------------------
Julie Carr Smyth and Geoff Mulvihill, writing for The Associated
Press, report that the nation's three biggest drug distributors and
a major drugmaker agreed to an 11th-hour, $260 million settlement
Monday over the terrible toll taken by opioids in two Ohio
counties, averting the first federal trial over the crisis.
Across the U.S., the pharmaceutical industry still faces more than
2,600 other lawsuits over the deadly disaster. Participants in
those cases said Monday's deal buys them time to try to work out a
nationwide settlement of all claims.
Later in the day, a group of four state attorneys general laid out
what they called a national agreement in principle with five
companies. But a lawyer for local governments suing over opioids
dismissed it as something that had already been rejected.
The narrower settlement that was reached Monday was struck in the
middle of the night, just hours before a jury that was selected was
scheduled to hear opening arguments in a trial in federal court in
Cleveland.
The trial involved only two counties -- Cleveland's Cuyahoga County
and Akron's Summit County -- but was seen as an important test case
that could have gauged the strength of the opposing sides'
arguments and prodded them toward a nationwide resolution of all
claims.
Under the settlement, drug distributors AmerisourceBergen, Cardinal
Health and McKesson will pay a combined $215 million, said Hunter
Shkolnik, a lawyer for Cuyahoga County. Israeli-based drugmaker
Teva will contribute $20 million in cash and $25 million worth of
generic Suboxone, a drug used to treat opioid addiction.
"People can't lose sight of the fact that the counties got a very
good deal for themselves, but we also set an important national
benchmark for the others," Shkolnik said.
The deal contains no admission of wrongdoing by the defendants,
said Joe Rice, a lead plaintiffs' lawyer.
But it could turn up the pressure on all sides to work out a
nationwide deal, because every partial settlement reached reduces
the amount of money the companies have available to pay other
plaintiffs.
Across the country, drug manufacturers, suppliers and sellers face
a barrage of lawsuits brought by state and local governments,
Native American tribes, hospitals and others over the opioid
crisis, which is blamed for more than 400,000 deaths in the U.S.
over two decades. For nearly two years, a federal judge in Ohio has
been pushing the parties toward a settlement of all the lawsuits.
Separately, the small distributor Henry Schein also announced
Monday that it is settling with Summit County for $1.25 million.
The company was not named in Cuyahoga's lawsuit.
The only defendant left in the trial that had been scheduled for
Monday is the drugstore chain Walgreens. The new plan is for
Walgreens and other pharmacies to go to trial within six months.
The settlement enables both sides to avoid the risks and
uncertainties involved in a trial: The counties immediately lock in
money they can use to deal with the crisis, and the drug companies
avoid a possible finding of wrongdoing and a huge jury verdict.
"There's no amount of money that's going to change the devastation
and destruction that they've done to families not only all across
our county but all across the country," said Travis Bornstein, who
was preparing to testify in the Cleveland trial. But he said the
settlement should help provide services for people who are
struggling.
Bornstein said his son, Tyler, became hooked on opioids as a
teenager after receiving a prescription following surgery on his
arm. He died of a heroin overdose five years later, in 2014.
Better funding for treatment programs might have helped his son,
who was on a waiting list when he died, Bornstein said.
Ohio in 2017 had the second-highest death rate from drug overdoses
in the U.S., behind only West Virginia.
In a statement, the three major distributors said the settlement
money should be used on such things as treatment, rehab and mental
health services.
The settlement also means that the evidence prepared for the trial
won't be fully aired.
Lawyers for the counties were preparing to show the jury a 1900
first edition of "The Wonderful Wizard of Oz," featuring the poppy
fields that put Dorothy to sleep, and a 3,000-year-old Sumerian
poppy jug to show that the world has long known the dangers of
opioids.
Those suing the industry have accused it of aggressively marketing
opioids while downplaying the risks of addiction and turning a
blind eye toward suspiciously large shipments of the drugs. The
industry has denied wrongdoing.
Industry CEOs and attorneys general from four states met Friday in
Cleveland, where the offer on the table was a deal worth
potentially $48 billion in cash and addiction-treatment drugs to
settle cases nationally.
Those attorney generals reiterated the offer on Monday, saying it
would get money where it's needed quickly. They said they hope
other states and local governments sign on.
But Paul Hanly, one of the lead lawyers for the local governments,
said the companies should be forced to pay more. "It's a little
bizarre, frankly, that they came back with the same deal," he
said.
OxyContin maker Purdue Pharma, often cast as the biggest villain in
the crisis, reached a tentative settlement in September that could
be worth up to $12 billion. But half the states and hundreds of
local governments oppose it. It remains to be seen whether the
settlement will receive the approvals it needs.
Mulvihill reported from Cherry Hill, New Jersey. [GN]
AT&T CORP: Leave to File SAC in Wexler Case Denied
--------------------------------------------------
In the case captioned EVE WEXLER, on behalf of herself and all
others similarly situated, Plaintiff, v. AT&T CORP., Defendant,
Case No. 15-CV-0686 (FB) (PK), (E.D.N.Y.), the United States
District Court for the Eastern District of New York issued a
Memorandum and Order adopting a Report and Recommendation issued by
Magistrate Judge Kuo denying Plaintiff's Motion for Leave to File a
Second Amended Complaint.
In a prior memorandum and order, the Court ordered the class-action
allegations stricken from the complaint on the ground that the
named plaintiff, Dr. Eve Wexler, could not be an adequate class
representative because she is married to Shimshon Wexler, the
lawyer who filed the complaint. It reasoned that Mr. Wexler's
withdrawal from the case did not cure the conflict because he still
retained the right to seek fees on a quantum meruit theory.
In response, Dr. Wexler moved to amend the complaint to resurrect
the class-action allegations. She explained in a promotion letter
that Mr. Wexler had agreed to disavow any claim to attorney fees.
The Court referred the motion to Magistrate Judge Kuo, who issued a
Report and Recommendation ("R&R") on August 5, 2019. Dr. Wexler
timely objected, which requires the Court to review the R&R de
novo.
The R&R recommends that Plaintiff's Motion for Leave to File a
Second Amended Complaint be denied. It reasons that Plaintiff's
proposed amendments would be futile "[b]ecause Plaintiff is not an
adequate class representative" and as such "the proposed class
cannot be certified under Rule 23."
Plaintiff argues that the R&R erred in two respects:
First, as Magistrate Judge Kuo examined whether Plaintiff was an
adequate representative under Rule 23, Plaintiff argues the R&R
addressed the wrong question and should be rejected as contrary to
law.
It is true that a motion to amend a pleading is subject to the
lenient standard of Federal Rule of Civil Procedure 15. But when a
motion for leave to amend arises in the context of a class action,
leave should be denied as futile if the allegations in the proposed
amended complaint demonstrate that the proposed class cannot be
certified under Rule 23.
In this case, Plaintiff's Motion seeks to reinstate class
allegations that were already stricken by this Court on the grounds
that Plaintiff failed to satisfy the adequacy of representation
requirement. Whether Plaintiff's amendments are futile, therefore,
necessarily requires this Court to consider if those amendments
will enhance the likelihood of class certification under Rule 23.
Second, Plaintiff argues that it was error for Magistrate Judge Kuo
to find Plaintiff inadequate under Rule 23 because the R&R only
found the mere appearance of impropriety and the potential for
conflicts of interest, rather than an actual, fully-ripe conflict.
The Court overrules this objection as well.
To satisfy Rule 23's adequate representation requirement, a
plaintiff must have no interests antagonistic to the interest of
the other class members. A proposed representative may be an
inadequate if, for example, they have a close relationship with
class counsel or would otherwise permit a settlement on terms less
favorable to absent class members.
While Plaintiff argues the mere appearance of impropriety is not
disqualifying under Rule 23, the Court cannot agree. An actual
conflict is not a prerequisite to a finding of inadequacy, even a
potential conflict of interest is sufficient to render a named
plaintiff an inadequate class representative.
According to Plaintiff, even the "appearance" of a conflict of
interest was dispelled when Mr. Wexler--the former lead counsel in
this case and Plaintiff's spouse--renounced his claim for fees,
including for quantum meruit. Here again, the Court does not agree.
Evidence brought out in the parties briefing and an evidentiary
hearing on the Motion confirm that potential conflicts of interest
remain even in the absence of a direct fee claim from Mr. Wexler.
For example, Mr. Wexler's testimony revealed a history of business
dealings between him and current class attorneys James Giardina and
Keith Keogh. Mr. Wexler admitted that he and Mr. Giardina
previously worked together as counsel on more than one matter and
that, in at least two additional cases, Mr. Keogh had takenover as
lead counsel for Mr. Wexler. Given their "positive working
relationship", Mr. Wexler admitted that he trusted Giardina and
Keogh to "be fair to me" with respect to any fee claim, and that a
positive result for Giardina and Keogh in this case could lead to
reputational and financial (future case referrals) benefits for Mr.
Wexler himself. Plaintiff also testified at the evidentiary
hearing, stating that the decision to have Mr. Wexler withdraw as
counsel "came from either Mr. Wexler or Mr. Giardina," as did the
idea to have Mr. Wexler waive his claim for fees.
Thus, even accepting as true that Mr. Wexler was not promised
specific remuneration by Giardina and Keogh in this case, the
significant potential for a conflict of interest remains: Mr.
Wexler acknowledged that he previously brought Giardina and/or
Keogh into cases with hope of financial gain, that he had attempted
to do so here, and that he may do so again in the future. The clear
possibility that Plaintiff's husband may derive financial gain from
class counsel creates the appearance that Plaintiff would have an
incentive to maximize fees for her attorneys, ruled the Court.
The Court held that clear possibility that Plaintiff's husband may
derive financial gain from class counsel creates the appearance
that Plaintiff would have an incentive to maximize fees for her
attorneys. Moreover, Plaintiff's own testimony confirmed that she
had little or no involvement in the decisions about who would act
as class counsel or be entitled to recover fees. A plaintiff cannot
adequately represent a class if they "have so little knowledge of
and involvement in the class action that they would be unable or
unwilling to protect the interests of the class against the
possibly competing interests of the attorneys," notes the Court.
Accordingly, having reviewed the R&R de novo, the Court adopts the
R&R in full.
A full-text copy of the District Court's October 7, 2019 Memorandum
and Order is available at https://tinyurl.com/yxl4ncfq from
Leagle.com.
Eve Wexler, on behalf of herself and all others similarly situated,
Plaintiff, represented by James S. Giardina, The Consumer Rights
Law Group, PLLC, 3104 W Waters Ave Ste 200, Tampa, FL 33614 & Keith
James Keogh, Keogh Law, Ltd., 55 W. Monroe, Ste. 3390, Chicago, IL,
60603, pro hac vice.
AT&T Corp., Defendant, represented by Christopher James Houpt -
choupt@mayerbrown.com - Mayer Brown LLP, Archis A. Parasharami -
aparasharami@mayerbrown.com - Mayer Brown LLP, Evan M. Tager -
etager@mayerbrown.com - Mayer Brown, LLP, pro hac vice & Matthew D.
Ingber r - mingber@mayerbrown.com - Mayer Brown LLP.
AUTOMATED PET: Henderson Seeks Overtime Wages Under FLSA & WWPCL
----------------------------------------------------------------
Abigail Henderson, on behalf of herself and all others similarly
situated v. AUTOMATED PET CARE PRODUCTS INC., Case No.
2:19-cv-01630-WED (E.D. Wis., Nov. 8, 2019), is brought pursuant to
the Fair Labor Standards Act of 1938 and Wisconsin's Wage Payment
and Collection Laws to recover unpaid wages, unpaid overtime
compensation, liquidated damages, costs, attorneys' fees, and
declaratory and injunctive relief.
The Defendant operated (and continues to operate) an unlawful
compensation system that deprived and failed to compensate all
current and former hourly paid, non-exempt manufacturing employees
for all hours worked and work performed each workweek, including at
an overtime rate of pay for each hours worked in excess of 40 hours
in a workweek, Ms. Henderson alleges. The Defendant's failure to
compensate its hourly-paid, non-exempt Manufacturing employees for
compensable work performed at the correct and lawful overtime rate
of pay, was intentional, willful, and violated federal law as set
forth in the FLSA and state law as set forth in the FLSA and WWPCL,
says the complaint.
The Plaintiff was hired by the Defendant in the position of
Assembler on May 6, 2019.
Automated Pet Care Products, Inc. is headquartered in Auburn Hills,
Michigan, and designs and manufactures automated pet care
products.[BN]
The Plaintiff is represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
David M. Potteiger, Esq.
WALCHESKE & LUZI, LLC
15850 W. Bluemound Rd., Suite 304
Brookfield, WI 53005
Phone: (262) 780-1953
Fax: (262) 565-6469
Email: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
dpotteiger@walcheskeluzi.com
AXOS FINANCIAL: Appeal in Calif. Securities Class Suit Underway
---------------------------------------------------------------
Axos Financial, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the appeal in the
consolidated class action suit entitled, In re BofI Holding, Inc.
Securities Litigation, Case #: 3:15-cv-02324-GPC-KSC, remains
pending.
On October 15, 2015, the Company, its Chief Executive Officer and
its Chief Financial Officer were named defendants in a putative
class action lawsuit styled Golden v. BofI Holding, Inc., et al.,
and brought in United States District Court for the Southern
District of California.
On November 3, 2015, the Company, its Chief Executive Officer and
its Chief Financial Officer were named defendants in a second
putative class action lawsuit styled Hazan v. BofI Holding, Inc.,
et al., and also brought in the United States District Court for
the Southern District of California (the "Hazan Case"). On February
1, 2016, the Golden Case and the Hazan Case were consolidated as In
re BofI Holding, Inc. Securities Litigation, Case #:
3:15-cv-02324-GPC-KSC (the "Class Action"), and the Houston
Municipal Employees Pension System was appointed lead plaintiff.
The plaintiffs allege that the Company and other named defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, and Rule 10b-5 promulgated thereunder, by failing to disclose
wrongful conduct that was alleged in a complaint filed in
connection with a wrongful termination of employment lawsuit filed
on October 13, 2015 (the "Employment Matter") and that as a result
the Company's statements regarding its internal controls, as well
as portions of its financial statements, were false and misleading.
On March 21, 2018, the Court entered a final order dismissing the
Class Action with prejudice. Subsequently, the plaintiff filed a
notice of appeal and opening brief and the Company has filed its
answering brief.
No further updates were provided in the Company's SEC report.
Axos Financial, Inc. operates as the holding company for BofI
Federal Bank that provides consumer and business banking products
in the United States. The company offers deposits products,
including consumer and business checking, demand, savings, and time
deposit accounts. Axos Financial, Inc. was incorporated in 1999 and
is based in San Diego, California.
BARCLAYS BANK: Court Dismisses SSA Bonds Antitrust Litigation
-------------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Opinion and Order granting Defendants' Motions to
Dismiss the case IN RE SSA BONDS ANTITRUST LITIGATION, Case No.
16-Civ-3711 (ER), (S.D.N.Y.).
This litigation arises from fourteen related complaints filed
against several banks and certain employees who allegedly conspired
to fix the price of supranational, sovereign, and agency (SSA)
bonds sold to and purchased from investors in the secondary market,
where investors can buy and sell bonds among themselves. These
actions were consolidated under the caption In re SSA Bonds
Antitrust Litigation, No. 16 Civ. 3711. Pending before the Court
are the motions to dismiss the Second Consolidated Amended Class
Action Complaint ("SAC") for lack of personal jurisdiction and
improper venue for certain foreign corporate and individual
Defendants.
The thirteen Foreign Dealer Defendants seeking dismissal of all
claims based on lack of personal jurisdiction arc: Barclays Bank
PLC, Barclays Capital Securities Limited, Barclays Services
Limited, BNP Paribas, Citigroup Global Markets Limited, Credit
Agricole Corporate & Investment Bank, Credit Suisse AG, Credit
Suisse International, Credit Suisse Securities (Europe) Ltd.,
Nomura International [PLC], Royal Bank of Canada, RBC Europe
Limited, and The Toronto Dominion Bank. A subset of six Foreign
Dealer Defendants challenge venue in New York based on Plaintiffs'
reliance on Section 12 of the Clayton Act: Barclays Capital
Securities Limited, Barclays Services Limited, Credit Suisse
International, Credit Suisse Securities (Europe) Ltd., and Nomura
International PLC.
And four individual defendants, all British citizens or residents,
join the Foreign Dealer Defendants in their motion to dismiss: Gary
McDonald, Amandeep Singh Manku, Shailen Pau, and Bhardeep Singh
Heer. These four Defendants were employed by several of the bank
Defendants as USD SSA bond traders and communicated with each other
via chat messages about their transactions.
The named Plaintiffs are the Alaska Permanent Fund Corporation, the
Alaska Department of Revenue, and the Iron Workers Pension Plan of
Western Pennsylvania. Plaintiffs seek to represent a Class
comprising of all persons or entities who directly entered into USD
SSA bond transactions with Defendants, their respective
subsidiaries, or affiliates, and which involved trade with the
United States from January 1, 2009 to December 31, 2015 (the "Class
Period").
Plaintiffs allege that the Foreign Dealer Defendants and the
Individual Defendants, directly and through U.S.-based affiliates,
colluded to make money in the USD SSA bond market at the expense of
U.S. customers. The Foreign Dealer Defendants approved and priced
the named Plaintiffs' transactions, knowing they were with a U.S.
counterparty.
LEGAL STANDARD
Before a court can exercise personal jurisdiction over a defendant,
three requirements must be met: (1) plaintiff's service of process
upon the defendant must have been procedurally proper (2) there
must be a statutory basis for personal jurisdiction that renders
such service of process effective and (3) the exercise of personal
jurisdiction must comport with constitutional due process
principles.
CLAYTON ACT
Personal jurisdiction is not proper under Section 12 of the Clayton
Act because Plaintiffs have not satisfied its venue provision.
Plaintiffs bring this case pursuant to Section 1 of the Sherman
Act, which prohibits conspiracies restraining trade. The Section
provides:
Any suit, action, or proceeding under the antitrust laws against a
corporation may be brought not only in the judicial district
whereof it is an inhabitant, but also in any district wherein it
may be found or transacts business; and all process in such cases
may be served in the district of which it is an inhabitant, or
wherever it may be found.
NEW YORK LONG-ARM STATUTE
Next, the Court turns to whether Plaintiffs have alleged sufficient
facts to rely on New York's long-arm statute for personal
jurisdiction. The statute states in relevant part that:
As to a cause of action arising from any of the acts enumerated in
this section, a court may exercise personal jurisdiction over any
non-domiciliary, or his executor or administrator, who in person or
through an agent: 1. transacts any business within the state or
contracts anywhere to supply goods or services in the state or 2.
commits a tortious act within the state, except as to a cause of
action for defamation of character arising from the act or 3.
commits a tortious act without the state causing injury to person
or property within the state, except as to a cause of action for
defamation of character arising from the act.
Transacts Business Within the State
Foreign Dealer Defendants
Plaintiffs allege that because the Clayton Act's venue clause
requires as much as, if not more than, the transacts business
requirement under the New York long-arm statute, the same facts
discussed as to the Venue Defendants apply here, too.
Having found that Plaintiffs did not sufficiently allege that the
Venue Defendants transacted business within New York State, the
Court focuses its analysis on the remaining eight Foreign Dealer
Defendants.7 Plaintiffs summarily argue that all the foreign banks
structured their USD SSA operations in the same way, with the
London desks provided marketing, pricing, and approval direction to
their New York counterparts.
Plaintiffs identify only one specific trade between a Plaintiff and
a non-venue Defendant with an office in New York: a transaction
between the Alaska Department of Revenue and Credit Suisse.
However, there are four Credit Suisse entities sued as Defendants
herein, and Plaintiffs do not specify whether the Credit Suisse
entity they refer to is Credit Suisse AG (CSAG), Credit Suisse
Securities (USA) LLC (CSSUSA), Credit Suisse Securities (Europe)
Limited (CSSEL), or Credit Suisse International (CSI). As to
Barclays Bank PLC, BNP Paribas, Crédit Agricole Corporate &
Investment Bank, Royal Bank of Canada, and the Toronto-Dominion
Bank, Plaintiffs do not allege any specific transactions, let alone
transactions that took place in New York, with a substantial
connection to Plaintiffs' claims. Plaintiffs have not established a
nexus between the alleged business transactions in New York and the
claims of this antitrust case.
Therefore, the New York long-arm statute does not reach the Foreign
Dealer Defendants.
Individual Defendants
Plaintiffs claim that each of the Individual Defendants
deliberately targeted New York with their USD SSA bond trading
activities. Opp. Memo 66, Doc. 579. Each one allegedly promoted,
artificially priced, and traded USD SSA bonds with members of the
Class in the United States and New York. Yet, Plaintiffs cannot
rely on bare allegations that Defendants transacted with unnamed
absent class members to establish jurisdiction. Plaintiffs would
need to show that the Individual Defendants transacted with named
Plaintiffs, not just unnamed members of the class.
Plaintiffs allege that each Individual Defendant traveled to New
York to promote his bond trading services and to maintain
relationships with his New York-based customers for USD SSA bonds
and was personally responsible for USD SSA transactions with
members of the Class in the United States, including in New York.
Plaintiffs assert that Pau worked with U.S.-based salespeople and
traveled to New York for a USD SSA bond conference, but Plaintiffs
do not allege that he manipulated or even discussed bond prices at
the conference. Pau Memo 2, Doc. 541. Neither do Plaintiffs present
facts to support their allegation that the trips were used to plan
the manipulation. These are boilerplate allegations.
These limited contacts are not sufficient to establish jurisdiction
over the Individual Defendants.
Moreover, the Court cannot credit these allegations because
Plaintiffs do not offer particularized facts to show that the
Individual Defendants' activities in New York had an articulable
nexus, or substantial relationship, to the underlying cause of
action. Accordingly, Plaintiffs have not established that the
Individual Defendants transacted business in New York such that
personal jurisdiction may properly be obtained.
Tortious Acts and New York State
Section 302(a)(2): Tortious Acts Within the State
Plaintiffs allege that the Defendants engaged in marketing,
pricing, and approving USD SSA bond transactions, providing a
constant flow of information to and from New York-based salespeople
and traders and traveling to New York to meet U.S. investors.
However, Plaintiffs do not point to any specific salesperson, date
of transaction, amount of transaction, or any other fact that can
support a finding of a tortious act within New York State committed
by Defendants or their alleged co-conspirators in furtherance of
the conspiracy. Without factual support for this claim, the Court
cannot credit it. Lastly, nothing in the record indicates that the
original event occurred in New York. On the contrary, Plaintiffs
allege that the tort originated at the London desks of the
Defendants who conspired not to compete on USD SSA bonds with
U.S.-based investors and then controlled their U.S.-based
associates. Plaintiffs have not established a tort committed within
New York that gives rise to personal jurisdiction here.
In sum, Plaintiffs do not meet their burden of establishing that
the Court has personal jurisdiction over the Foreign Dealer
Defendants or the Individual Defendants pursuant to the New York
long-arm statute.
Due Process Requirements
The Court does not need to reach whether establishing personal
jurisdiction over the Defendants comports with due process. But
even if the Court did so, Plaintiffs have failed to show that the
Foreign Dealer Defendants and the Individual Defendants had minimum
contacts with New York. The touchstone due process principle has
been that the defendant must have sufficient minimum contacts with
the forum such that the lawsuit does not offend traditional notions
of fair play and substantial justice.
Here, Plaintiffs do not allege facts that specifically show that
any of the Defendants sold USD SSA bonds in New York. Accordingly,
Plaintiffs have not alleged purposeful availment. Plaintiffs also
allege the Foreign Dealer Defendants artificially priced and
approved USD SSA bonds knowing the trades were for a U.S. investor.
This is a conclusory statement. There is no factual support for the
proposition that Defendants directed any actions at New York
specifically.
In sum, exercising personal jurisdiction over any of the Defendants
in the instant case would not be proper and would violate due
process.
CONSPIRACY JURISDICTION
Another jurisdictional theory, called conspiracy jurisdiction, may
be available in cases alleging a conspiracy. The appropriate test
for alleging a conspiracy theory of jurisdiction, is an allegation
that (1) a conspiracy existed (2) the defendant participated in the
conspiracy and (3) a co-conspirator's overt acts in furtherance of
the conspiracy had sufficient contacts with a state to subject that
co-conspirator to jurisdiction in that state.
Conspiracy jurisdiction allows a plaintiff to establish personal
jurisdiction over a defendant by imputing to them the
jurisdictional contacts of in-forum defendants based on the alleged
conspiracy.
Existence of a Conspiracy
To establish a conspiracy under Section 1 of the Sherman Act, proof
of joint or concerted action is necessary and mere parallel conduct
is not sufficient. There are two ways that a plaintiff can allege
enough facts to support the inference that a conspiracy existed and
overcome a motion to dismiss: (1) present direct evidence that the
defendants entered into an agreement in violation of the antitrust
laws, or (2) present circumstantial facts supporting the inference
that a conspiracy existed.
Here, Plaintiffs allege the existence of a horizontal conspiracy
among Defendants to not compete against each other in the market
for USD SSA bonds and to cooperate and maximize their own profits
at the expense of their customers. Purportedly, Defendants'
overarching objective was to ensure that cartel members could
transact with investor clients at prices that were more favorable
for the conspiring dealers than would have been achieved absent
collusion. Specifically, that when an investor contacted one or
more dealers to purchase a bond, the Defendants communicated with
each other via chat rooms and phone calls, where they coordinated
sales to achieve more favorable prices and terms for themselves.
They argue that these techniques were per se unlawful.
Direct Evidence
A court in this District found that a horizontal conspiracy existed
in a consolidated class action alleging a long-running agreement
between the world's largest banks to manipulate the benchmark rates
in the foreign exchange (FX) market.
Here, the Defendants are horizontal competitors in the USD SSA
bonds market who compete for customers by supplying different bid
and ask quotes. If Defendants collude, costumers pay
non-competitive prices.
Such chat communications are the type of rare smoking gun evidence
that shows. In re GSE Bonds Antitrust Litig., No. 19 Civ. 1704
(JSR), 2019 WL 4071070, at *5 (S.D.N.Y. Aug. 29, 2019). In GSE
Bonds, plaintiffs filed a class action alleging a conspiracy to fix
secondary market prices of bonds issued by government-sponsored
entities (GSEs). Here, Plaintiffs have sufficiently alleged that
these conversations were.
Indirect and Statistical Evidence
Plaintiffs further corroborate this inference with statistical
analyses that indicate collusion during the Class Period, January
1, 2009 to December 31, 2015, which overlapped with the employment
periods of certain Individual Defendants. Plaintiffs allege that
beginning in late 2015, the U.S. Department of Justice (DOJ) began
an investigation that led all or nearly all of the key participants
in the cartel to be removed from their trading desks. In late 2015,
Bank of America suspended or terminated Gudka, who worked as a bond
trader at several banks from December 2001 to November 2015.
Prosecutors obtained transcripts of online chat rooms indicating
possible misconduct of SSA traders at defendant banks who were
sharing information on certain USD dollar bonds. Plaintiffs rely
on SSA bond data from Bloomberg that does not allow for the
identification of bids, offers, or final prices at an individual or
trade level, but does allow for analyses on market-wide pricing in
the USD SSA bond market.
The Collusion Indicator analysis showed a no reading prior to 2009
and after 2015. Plaintiffs allege that the reports of the
investigation placed a regulatory spotlight on the Defendants and
cast a chilling effect on their collusion activity. This leads to
an inference that there was a correlation between the removal of
certain Individual Defendants from their trading desks and a
Collusion Indicator of no, or 0, outside of the alleged conspiracy
period. A relevant plus factor is that some of the traders' actions
went against their economic interests.
Thus, Plaintiffs have alleged a plausible inference that certain
Individual Defendants colluded.
Co-Conspirator's Acts in New York
Lastly, while Plaintiffs have pleaded plausible collusion existed
among certain Individual Defendants, they have failed to show that
the any Defendants' alleged co-conspirators committed a tort in New
York. At the pleading stage, Plaintiffs must at least provide some
details about the transactions that bear on the plausibility that
the alleged manipulation caused actual damage. While, here, the
chat history, Plaintiffs provide no evidence as to any specific
transactions that occurred in New York or who the alleged
co-conspirators were.
In sum, Plaintiffs have not met their burden of establishing
conspiracy jurisdiction.
FEDERAL LONG-ARM STATUTE
Having found that Plaintiffs have not established personal
jurisdiction over Defendants pursuant to the Clayton Act or the New
York long-arm statute, the Court next considers whether Rule
4(k)(2) of the Federal Rules applies.
Here, Plaintiffs have alleged claims under two federal statutes:
the Sherman Act and the Clayton Act.
Rule 4(k)(2) establishes personal jurisdiction where (1) the claim
arises under federal law (2) the defendant is not subject to
jurisdiction in any state's courts of general jurisdiction and (3)
exercising jurisdiction is consistent with the United States
Constitution and laws.
Because the Plaintiffs in the instant case have not certified that
the Foreign Dealer Defendants are not subject to general
jurisdiction in another state, they have not met all of the
elements of Rule 4(k)(2), and this Court can decline to apply the
provision here.
Plaintiffs request that should this Court conclude that
certification is required, Plaintiffs be allowed the opportunity to
certify that the Foreign Dealer Defendants are not subject to
jurisdiction in any other state court. But even if Plaintiffs met
their burden of certifying that the Foreign Dealer Defendants
cannot be haled into court in any other state, Plaintiffs fail to
show that the exercise of personal jurisdiction over defendants is
consistent with the United States Constitution and laws.
For the Foreign Dealer Defendants, Plaintiffs merely assert they
purposely availed themselves of the forum and argue that
certification under Rule 4(k)(2) is not necessary. They do not
attempt to make a prima facie case that Rule 4(k)(2) applies to the
Foreign Dealer Defendants. For the Individual Defendants,
Plaintiffs propose that all the same facts and arguments that
applied to the New York long-arm statute apply to the Rule 4(k)(2)
analysis, except that the Individual Defendants' ties to the United
States are stronger than to New York State. Plaintiffs repeat their
boilerplate allegations that the Individual Defendants executed and
marketed USD SSA bonds at artificial prices with members of the
Class in New York, directly and via U.S.-based salespeople.
However, as discussed above, Plaintiffs' bare allegations
concerning the sporadic contacts that the Individual Defendants had
with New York are not sufficient to establish personal jurisdiction
over them.
Accordingly, Plaintiffs have not met their burden of establishing
that this Court has jurisdiction over the Defendants pursuant to
Rule 4(k)(2).
ANTITRUST INJURY
The Court has already dismissed Plaintiffs' allegations of
antitrust injury and so no underlying tort has been sufficiently
pled. The defendants in Aluminum IV, Eastman Kodak Co. v. Henry
Bath LLC, 936 F.3d 86, 95 (2d Cir. 2019) (Aluminum IV), allegedly
restrained the market for aluminum sales by artificially
manipulating a price component for sales of the metal The
plaintiffs' injury was not an incidental by product of the
defendants' alleged violation, but a direct result of defendants'
anticompetitive conduct.
In this case, the Dealer Defendants rely on a prior Aluminum
decision to argue that Plaintiffs lack antitrust standing because
the alleged misconduct occurred in the interdealer market where the
Defendants transacted with each other, and not in the
dealer-to-customer market where the Defendants allegedly transacted
with Plaintiffs.
Plaintiffs argue that this argument is erroneous in light of
Aluminum IV because the fact that one means of accomplishing
Defendants' conspiracy occurred in the interdealer market does not
render Plaintiffs' standing less relevant. While the Court agrees
with Plaintiff's interpretation of the Second Circuit's reasoning
in Aluminum IV, Plaintiffs have not pleaded facts sufficient to
show an antitrust injury. Specifically, Plaintiffs failed to show
that they themselves were party to any specific price-fixed
transaction with a named Defendant.
The Defendants' motion to dismiss for personal jurisdiction and
improper venue is GRANTED with prejudice.
The Foreign Dealer Defendants' and McDonald's requests for oral
arguments, and the joint letter motion for a conference, are DENIED
as moot.
A full-text copy of the District Court's September 30, 2019
Memorandum is available at https://tinyurl.com/y3ajue7z from
Leagle.com.
Irving Firemen's Relief and Retirement Fund, Plaintiff, pro se.
Alaska Department of Revenue, Treasury Division & Alaska Permanent
Fund Corporation, Plaintiffs, represented by Ashley M. Kelly -
akelly@rgrdlaw.com - Robbins Geller Rudman & Dowd LLP & Daniel
Lawrence Brockett - danbrockett@quinnemanuel.com - Quinn Emanuel.
City of Atlanta Firefighters Pension Fund, on behalf of itself and
all others similarly situated & Louisiana Sheriffs' Pension Relief
Fund, on behalf of itself and all others similarly situated,
Consolidated Plaintiffs, represented by Benjamin Galdston -
beng@blbglaw.com - Bernstein Litowitz Berger & Grossmann LLP, pro
hac vice, Blair Allen Nicholas - blairn@blbglaw.com - Bernstein
Litowitz Berger & Grossman, LLP, pro hac vice, Brandon Marsh -
brandon.marsh@blbglaw.com - Bernstein Litowitz Berger & Grossman
LLP, pro hac vice, David R. Kaplan - dkaplan@saxenawhite.com -
Saxena White P.A., pro hac vice, Lucas E. Gilmore -
lucas.gilmore@blbglaw.com - Bernstein Litowitz Berger & Grossmann
LLP, pro hac vice & Scott Allan Martin - smartin@hausfeld.com -
Hausfeld LLP.
Credit Suisse AG, Credit Suisse Securities (Europe) Ltd., Credit
Suisse International & Credit Suisse Securities (USA) LLC,
Defendants, represented by Adam Shawn Mintz - amintz@cahill.com -
Cahill Gordon & Reindel LLP, David George Januszewski -
djanuszewski@cahill.com - Cahill Gordon & Reindel LLP, Elai E. Katz
- ekatz@cahill.com - Cahill Gordon & Reindel LLP, Herbert Scott
Washer - hwasher@cahill.com - Cahill Gordon & Reindel LLP, Jason
Michael Hall - jhall@cahill.com - Cahill Gordon & Reindel LLP &
Sheila Chithran Ramesh - sramesh@cahill.com - Cahill Gordon &
Reindel LLP.
Deutsche Bank AG, Defendant, represented by John Terzaken -
john.terzaken@stblaw.com - Simpson Thacher & Bartlett LLP, pro hac
vice, Brian Thomas Fitzpatrick – brian.fitzpatrick@allenovery.com
- Allen & Overy, LLP, Jana Steenholdt –
jana.steenholdt@allenovery.com- Allen & Overy, LLP, pro hac vice &
John Roberti – john.roberti@allenovery.com - Allen & Overy LLP.
BARING BDC: Appeal in Triangle Capital Securities Suit Ongoing
--------------------------------------------------------------
Barings BDC said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 30, 2019, for the quarterly
period ended September 30, 2019, that the appeal in the class
action suit entitled, In re Triangle Capital Corp. Securities
Litigation, Master File No. 5:18-cv-00010-FL, is ongoing.
The company and certain of its former executive officers have been
named as defendants in two putative securities class action
lawsuits, each filed in the United States District Court for the
Southern District of New York (and then transferred to the United
States District Court for the Eastern District of North Carolina)
on behalf of all persons who purchased or otherwise acquired the
company's common stock between May 7, 2014 and November 1, 2017.
The first lawsuit was filed on November 21, 2017, and was captioned
Elias Dagher, et al., v. Triangle Capital Corporation, et al., Case
No. 5:18-cv-00015-FL (the "Dagher Action"). The second lawsuit was
filed on November 28, 2017, and was captioned Gary W. Holden, et
al., v. Triangle Capital Corporation, et al., Case No.
5:18-cv-00010-FL (the "Holden Action"). The Dagher Action and the
Holden Action were consolidated and are currently captioned In re
Triangle Capital Corp. Securities Litigation, Master File No.
5:18-cv-00010-FL.
On April 10, 2018, the plaintiff filed its First Consolidated
Amended Complaint. The complaint, as currently amended, alleges
certain violations of the securities laws, including, among other
things, that the defendants made certain materially false and
misleading statements and omissions regarding the Company's
business, operations and prospects between May 7, 2014 and November
1, 2017.
The plaintiff seeks compensatory damages and attorneys' fees and
costs, among other relief, but did not specify the amount of
damages being sought.
On May 25, 2018, the defendants filed a motion to dismiss the
complaint. On March 7, 2019 the court entered an order granting the
defendants' motion to dismiss. On March 28, 2019, the plaintiff
filed a motion seeking leave to file a Second Consolidated Amended
Complaint. On September 20, 2019, the court entered an order
denying the plaintiff's motion for leave to file a Second
Consolidated Amended Complaint and dismissing the action with
prejudice.
On October 17, 2019, the plaintiff filed a notice of appeal seeking
review of the court's September 20, 2019 order.
Barings said, "We intend to defend ourselves vigorously against the
allegations in the aforementioned actions. Neither the outcome of
the lawsuits nor an estimate of any reasonably possible losses is
determinable at this time. An adverse judgment for monetary damages
could have a material adverse effect on our operations and
liquidity. Except as discussed above, neither we nor our
subsidiaries are currently subject to any material pending legal
proceedings, other than ordinary routine litigation incidental to
our business."
Barings BDC, Inc. is a business development company specializing in
private equity and mezzanine investments. Triangle Capital
Corporation was incorporated on October 10, 2006 and is based in
Raleigh, North Carolina.
BRIGADOON FITNESS: Ct. Denies Reconsideration of Class Cert. Denial
-------------------------------------------------------------------
The Hon. Holly A. Brady entered an opinion and order denying the
Plaintiff's Motion to Reconsider Denial of Class Certification and
the Amended Motion for Class Certification in the lawsuit titled
GORSS MOTELS, INC., a Connecticut corporation, individually and as
the representative of a class of similarly-situated persons v.
BRIGADOON FITNESS INC., an Indiana corporation, BRIGADOON
FINANCIAL, INC., an Indiana corporation, and John Does 1–5, Case
No. 1:16-cv-00330-HAB-SLC (N.D. Ind.).
In April 2013, Defendant Brigadoon Fitness, Inc., a licensed
distributor of commercial fitness equipment and accessories to the
hospitality industry, sent a one-page fax advertising its services
to thousands of hotel and motel franchisees. Plaintiff, a former
Wyndham franchisee that operated a Super 8 motel, claims to have
received this "junk fax." Over three years later, the Plaintiff
filed a lawsuit against Brigadoon for the lost use of its fax
machine, paper, and ink toner and the wasted expenditure of time.
The Plaintiff alleges that the Defendant violated the Telephone
Consumer Protection Act (TCPA) of 1991, as amended by the Junk Fax
Prevention Act of 2005, 47 U.S.C. Section 227, by sending an
unsolicited fax advertisement. The Plaintiff seeks to certify a
putative class of all 10,490 Brigadoon fax recipients.
The Plaintiff asked that this class be certified:
All persons or entities who were successfully sent a Fax on
April 17, 2013 stating, "ANY 2 CARDIO = FREE SANITATION
STATION," listing "Hotel Fitness A Brigadoon Fitness
Company" as the vendor, and containing the phrase "Let Us
Help You Design Your Fitness Room! 800.291.0403 Call today
to talk to one or [sic] our trained experts."
The Court previously denied the Plaintiff's motion for class
certification. The Plaintiff asked the Court to reconsider its
ruling or, alternatively, to certify a class consisting of
recipients of the April 2013 fax whose numbers were obtained from
"the Wyndham Fax List." This alternatively defined class would
include only those recipients of the fax who were, like the
Plaintiff, Wyndham franchisees, and were included in a fax list
that Wyndham supplied to Brigadoon due to its status as a Wyndham
approved supplier.
Judge Brady notes that this Opinion and Order considers both
motions and determines whether this case should be certified as a
class action, either as defined in the Plaintiff's original request
and argued in the Motion to Reconsider Denial of Class
Certification, or as more narrowly defined in its Amended Motion
for Class Certification.[CC]
BROCKTON, MA: Dec. 2 Trial Set in Employment Discrimination Suit
----------------------------------------------------------------
Marc Larocque, writing for The Enterprise, reports that in 2017,
the city of Brockton went to trial to defend itself against a
lawsuit claiming employment discrimination and retaliation, but a
jury found in favor of the plaintiff and issued a
more-than-$4-million judgment in favor of Russell Lopes, a former
job applicant for a position at the Department of Public Works.
Now, the city is facing the potential for an even larger judgment
in a class action case filed by Lopes' lawyer on behalf of other
minorities, alleging they were also victims of employment
discrimination by the city of Brockton. The opening of the trial
for the class action over allegations of employment discrimination
against the city is scheduled to take place on Dec. 2 at Brockton
Superior Court.
Boston-based attorney Philip Gordon said he is planning to proceed
with the trial, representing around 40 people as part of a class,
using the Lopes lawsuit as an "exemplar case."
Gordon has said previously that he is seeking $1.2 million for each
member of the class, the same amount that Lopes was awarded by the
jury in January 2017 for punitive damages for a count of racial
discrimination against the city, over his claims that Brockton's
DPW and Personnel Department favored white applicants and didn't
give him a fair shot at an opening for a diesel mechanic nine years
ago. If Gordon is successful, that could put Brockton taxpayers on
the hook for upward of $50 million, in addition to the $4
million-plus in damages and interest that's accumulating from the
Lopes verdict, which remains under appeal by the city. Lopes has
not seen any of that money yet, as the city continues to appeal the
2017 verdict.
However, when asked about any potential settlement over the class
action case over allegations of discrimination, Gordon confirmed
that he made a "serious settlement offer" to the city to settle the
case. Gordon said the offer was made to the city's legal team a
couple weeks ago. Gordon said he has not yet received a response
from the city.
Gordon would not specify the price tag on that proposed
settlement.
"It's confidential," said Gordon, who also declined to identify
members of the class or make them available for interviews with The
Enterprise. "We'd be happy to engage in further discussions. We
haven't heard back yet from city's counsel."
City Solicitor Philip Nessralla and the office of Mayor Moises
Rodrigues did not respond to questions from The Enterprise about
the class action trial. The Enterprise sought to confirm whether a
settlement offer was made to the city, and also requested
information about the legal costs associates with litigating the
Lopes case, the appeal and the upcoming class action trial.
However, Nessralla sent out a mass email on Oct. 17 to candidates
running for city office in the Nov. 5 election, warning them not to
speak publicly about the Lopes case and the upcoming class action
trial. A copy of the email was obtained by The Enterprise.
"I together with the outside litigation attorney are quite
concerned over such discussion," Nessralla wrote in the email, sent
to about 30 candidates for public office. "This case has not
reached a final judgement and it has a long history of complexities
and legal issues. I, together with the Law Department and outside
attorneys, have been working on this case for several years. I
would admonish public officials and aspiring public officials to
refrain from making further comment or speculation in this case,
considering the amount of information that is not known to the
public."
Nessralla argued that "public statements" about the discrimination
litigation "may be extremely damaging and also diminish any
successful attempts" to defend the city against the Lopes case.
Despite his plea, the two candidates for mayor, Councilor at-large
Robert Sullivan and Jimmy Pereira, both discussed the Lopes case
and the class action during a debate held at Massasoit Community
College on Oct. 17. Both Sullivan and Pereira indicated that they
were open to negotiating a settlement of the civil action against
the city.
"There's nothing worse than discrimination," said Sullivan, noting
his background as a lawyer. "What I would do is sit down . . . to
discuss a possible settlement. . . . As a lawyer . . . it needs to
be discussed. The dollar amount laying out there is just crippling.
. . . Without the discussion, there's not going to be any movement.
. . . If I'm elected mayor, everyone's voice will be heard and the
discrimination days, they're long gone. They have to be."
Pereira said "the city should settle the case before the trial,"
adding that Brockton would otherwise "most likely" lose in court.
Pereira said he'd also like to change city practices to create more
safeguards against employment discrimination, including the
formation of a citizens advisory committee to address potential
instances of discrimination in the future.
"To ignore this case would be a disservice to the city of Brockton
and the taxpayers," Pereira said. "I would make sure to work, to
sit down and make sure to listen and provide feedback as to how we
can move this forward, to make sure we do what's best for the city
of Brockton, and for Lopes as well for his troubles."
Tony Branch, chairman of Brockton's advisory Diversity Commission,
said he hopes that the city officials can come to a resolution that
doesn't put the city into receivership. Branch said he doesn't
believe a "continuing pattern" of employment discrimination still
persists in Brockton. But that doesn't resolve the financial
problem that Brockton is facing because of those discrimination
claims, he said.
"It looks like we could be on the hook for millions of dollars,
unfortunately bankrupting the city of Brockton," Branch said.
"There is a racial discrimination cancer in Brockton that needs
chemo. People are sitting on this like it's not really a big deal.
It is a big deal."
Phyllis Ellis, president of the Brockton Area Branch NAACP, said
the litigation surrounding the Lopes case has "gone on too long,"
and that if Brockton loses the class action trial, then it will be
a greater stain on the city's record concerning racial
discrimination.
"This case could have been settled long ago, if not for the
arrogance of some people in the city," Ellis said. "The fact is Mr.
Lopes was discriminated against. . . . In this class action case we
are talking about, at least 38 individuals alleging what happened
to Mr. Lopes happened to them at the same place of business, the
Department of Public Works. If it can happen to one individual, it
can happen to 38 others. If the city loses this case, not only will
it possibly bankrupt the city, discrimination of minorities in the
city will be more evident than ever. Brockton boasts of the
diversity in the city, but what good is that diversity if we are
not treated equally? . . . If there is any possibility that this
class action can be settled before the court date, negotiate. At
some point, the city is going to have to admit defeat." [GN]
BRUNCH LTD: Krzyzanowski Sues Over Improper Use of Tip Credits
--------------------------------------------------------------
Amanda Krzyzanowski, individually, and on behalf of all others
similarly situated v. BRUNCH, LTD., BNL ST. CHARLES CORP. d/b/a
BRUNCH CAFE-ST. CHARLES, ANDREW ZATOS, and TED ZATOS, Case No.
1:19-cv-07427 (N.D. Ill., Nov. 8, 2019), alleges that the
Defendants violated the tip credit provision of the Fair Labor
Standards Act and the Illinois Minimum Wage Law by requiring their
servers to participate in a mandatory, involuntary and invalid tip
pool, which was operated and controlled by management.
Under their tip pool, the Defendants improperly collected and
maintained a percentage of servers' tips for their own benefit, the
Plaintiff alleges. As a result of the Defendants' improper use of
the tip credit provisions of the FLSA and IMWL, the Defendants paid
regular compensation to the Plaintiff based on an incorrectly low
regular rate of pay, says the complaint.
Amanda Krzyzanowski worked as an hourly-paid, non-exempt server for
the Defendants at their restaurant.
The Defendants operate eight restaurant locations throughout
Illinois and Arizona.[BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Haley R. Jenkins, Esq.
STEPHAN ZOURAS, LLP
100 N. Riverside Plaza, Suite 2150
Chicago, IL 60606
Phone: (312) 233-1550
Fax: (312) 233-1560
Email: rstephan@stephanzouras.com
jzouras@stephanzouras.com
hjenkins@stephanzouras.com
- and -
Scott A. Andresen, Esq.
ANDRESEN & ASSOCIATES, P.C.
319 Meier Street
East Dundee, IL 60118
Phone: (771) 572-6049
Fax: (771) 572-6048
Mobile: (771) 562-9078
Email: scott@andresenlawfirm.com
CAJUN ENERGY: Baker Seeks to Certify FLSA Class
-----------------------------------------------
In the class action lawsuit styled as JEFFREY BAKER, Individually
and for Others Similarly Situated, the Plaintiffs, vs. CAJUN ENERGY
SERVICES AND RENTALS, LLC, the Defendant, Case No.
7:19-cv-00037-DC-RCG (W.D. Tex.), the Plaintiff seeks conditional
certification of a collective action pursuant to 29 U.S.C. section
216(b) and approval of notice of the action against Cajun.
Specifically, Baker seeks conditional certification for the
following Fair Labor Standards Act class:
"All oilfield personnel who worked for, or on behalf of, Cajun
Energy Services and Rentals, LLC, providing flowback and well
testing services who were classified as independent contractors and
paid a day-rate at any time during the last three years."
Cajun is an oilfield services company providing equipment and
flowback and well testing services to the oil and gas
industry.[CC]
Attorneys for the Plaintiff and the Putative Class Members are:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 325-1100
Facsimile: (713) 325-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
rschreiber@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
CARRIAGE FUNERAL: Faria Settlement Wins Final Approval
-------------------------------------------------------
Carriage Services, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the court has
granted final approval of the Faria, et al. v. Carriage Funeral
Holdings, Inc., Class Action Settlement Agreement and the
settlement amount of $676,000.
On March 26, 2018, six Plaintiffs filed a putative class action
against Carriage Funeral Holdings, Inc., its subsidiary, their
alleged employer, on behalf of themselves and all similarly
situated current and former employees.
Plaintiffs seek monetary damages and claim that Carriage Funeral
Holdings, Inc. failed to pay minimum wages, provide meal and rest
breaks, provide accurately itemized wage statements, reimburse
employees for required expenses, and provide wages when due.
Plaintiffs also claim that Carriage Funeral Holdings, Inc. violated
California Business and Professions Code Section 17200 et seq.
On June 5, 2018, Plaintiffs filed a First Amended Complaint to add
a claim under the California Private Attorney General Act. On
October 23, 2018, the parties mediated this matter and executed a
Memorandum of Understanding for class settlement.
In February 2019, a Class Action Settlement Agreement was fully
executed, which was preliminarily approved by the Court.
On October 29, 2019, the court issued final approval of the Faria,
et al. v. Carriage Funeral Holdings, Inc., Class Action Settlement
Agreement and the settlement amount of $676,000 is expected to be
paid in the fourth quarter of 2019.
Carriage Services, Inc., provides funeral and cemetery services and
merchandise in the United States. It operates through two segments,
Funeral Home Operations and Cemetery Operations. The Company was
founded in 1991 and is headquartered in Houston, Texas.
CASH CONVERTERS: Settles Class Action on Excessive Fees for $42.5MM
-------------------------------------------------------------------
David Chau, writing for ABC, reports that Cash Converters has
agreed to pay $42.5 million to settle a class action, in which it
has been accused of charging vulnerable consumers excessive fees on
personal loans.
In a statement, the pawnbroker and loan provider said it signed a
settlement deed with the lead plaintiff, disability pensioner Sean
Lynch, on Oct. 21.
As a condition of the deal, Cash Converters did not admit
liability.
It was alleged Cash Converters engaged in "unconscionable conduct"
by charging annual interest rates in excess of 175 per cent from
July 30, 2009 to June 30, 2013, sending tens of thousands of
borrowers into "debt spirals".
The plaintiffs in the case took out personal loans ranging from
$600 to $2,000 for periods of six months.
The class action was brought by law firm Maurice Blackburn on
behalf of more than 60,000 Queenslanders.
It was argued Cash Converters breached Queensland consumer laws,
which impose a cap of 48 per cent annually for consumer credit
loans.
In order for the settlement to be finalised, it will need to be
approved by the Federal Court.
The company said it would pay the settlement amount in two stages.
It agreed to pay $32.5 million from its existing cash reserves
within 21 days, and the remaining $10 million by September 30,
2020.
By 12:15 p.m. (AEDT), Cash Converters' share price had jumped 26.7
per cent to 19 cents.
It had surged by as much as 43 per cent earlier in the day.
However, the company has seen better days on the ASX -- given its
share price has tumbled significantly since April 2013, when it hit
a record high of $1.51. [GN]
CBL CORP: Two Shareholder Class Actions Mulled in New Zealand
-------------------------------------------------------------
InsuranceNEW.com.au reports that two separate shareholder class
actions have been launched respectively against failed New Zealand
insurer CBL Corporation and its former directors.
Former CBL MD Peter Harris has hit out at the moves, saying today
"little heed is paid to the interests of the parties that lost the
money".
"Given the scramble between the two litigation funders and the
paucity of information coming from them, it seems to be more of one
funder trying to beat the other to get at the prize," Mr Harris
says in a statement to insuranceNEW.com.au.
"It will be interesting to see how some of the parties handle their
various conflicts between shareholders, advisers to the IPO, the
company, and the creditors.
"The issue for me is that these litigation-funded cases are often
just about money and settlements out of court, instead of going all
the way to court for proper outcomes."
The legal action against CBL is financed by Australian litigation
funder IMF Bentham and will allege the company breached its
obligations to keep investors properly informed about its French
business.
CBL subsidiary CBL Insurance, which went into liquidation last
November, was involved in the underwriting of French construction
insurance.
"The claim will allege that at the time of CBL's IPO in September
2015 and at all times up until the suspension of CBL shares in
February 2018, CBL breached disclosure requirements imposed on it
by the Financial Markets Conduct Act 2013," IMF Bentham says.
"Specifically, it will be alleged CBL did not disclose information
about its French insurance business in a timely and accurate way.
The claim will allege that CBL's breaches of the Financial Markets
Conduct Act have caused loss and damage to CBL shareholders."
The litigation funder plans to file the no-win-no-pay legal action
this month in the High Court of New Zealand, Investment Manager
Gavin Beardsell told insuranceNEWS.com.au.
"We are able to confirm we have signed both retail and
institutional investors."
Law firm Glaister Ennor will represent the shareholders in court.
The legal action against CBL's former directors was set to be filed
last month in the High Court in Wellington.
It is funded by New Zealand's LPF Group on a success fee basis and
is open to investors who purchased the IPO share offering in 2015
or acquired it subsequently.
The lawsuit "seeks to hold the directors of CBL Corporation to
account for their actions and gain compensation for the
shareholders who have suffered significant financial losses as a
result of the collapse of CBL," the class action website says.
"This class action is likely the only avenue now left available for
shareholders to seek compensation for the losses that they have
suffered as a result of the collapse of CBL."
The CBL Class Action Litigation Committee is representing
shareholders in all matters relating to the lawsuit. [GN]
CENTOR INC: Faces Johnson Suit Over Unpaid Overtime Pay Under FLSA
------------------------------------------------------------------
Rachel Johnson, on behalf of herself and others similarly situated
v. CENTOR, INC., Case No. 5:19-cv-02622 (N.D. Ohio, Nov. 8, 2019),
challenges the Defendant's overtime policies and practices that
violate the Fair Labor Standards Act, as well as the Ohio Minimum
Fair Wage Standards Act.
The Plaintiff routinely worked 40 or more hours per workweek for
the Defendants. Prior to the start of their shift, the Plaintiff
avers, she was required to their report to their workstation early
to meet with the person from the previous shift, who was working at
that workstation to discuss production and other work-related
issues. The Plaintiff asserts she was not paid for this time that
she and others spent reporting to their workstations prior to the
start of their shift. As a result of the Plaintiff not being paid
for all hours worked, the Plaintiff was not paid overtime
compensation for all the hours worked in excess of 40 each
workweek, says the complaint.
The Plaintiff is a resident of Tuscarawas County, Ohio, and was
employed by the Defendant.
The Defendant is a manufacturer of prescription containers for
medication dispensers.[BN]
The Plaintiff is represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Phone: (330) 470-4428
Facsimile: (330) 754-1430
Email: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
- and -
Jeffrey J. Moyle, Esq.
NILGES DRAHER LLC
614 W. Superior Ave., Suite 1148
Cleveland, OH 44113
Phone: 216.230.2955
Facsimile: (330) 754-1430
Email: jmoyle@ohlaborlaw.com
CENTRAL TRANSPORT: Illegally Collects Biometrics, Gonzalez Claims
-----------------------------------------------------------------
Reno Gonzalez, individually and on behalf of all others similarly
situated v. CENTRAL TRANSPORT LLC, an Indiana limited liability
company, Case No. 2019CH12998 (Ill. Cir., Cook Cty., Nov. 8, 2019),
is brought against the Defendant for violating the Illinois
Biometric Information Privacy Act.
Despite the substantial privacy risks created by the collection and
storage of biometric data, and the decade-old prohibition on
collecting and retaining biometric data in Illinois without
informed consent, the Defendant uses a biometric time-tracking
system that requires its workers to use their fingerprints as a
means of authentication. When the Defendant's Illinois workers
began their employment, the Defendant requires them to scan their
fingerprints into a database.
The Plaintiff contends that the Defendant's scanning and retention
of workers' fingerprints without informed consent is clearly
unlawful in Illinois. The Plaintiff adds that the Defendant fails
to inform its workers of the extent and purposes for which it
collects their biometric data and whether the data is disclosed to
third parties.
Reno Gonzalez is a natural person and a citizen of the State of
Illinois residing in Cook County.
The Defendant operates a trucking yard located in Hillside,
Illinois.[BN]
The Plaintiff is represented by:
Aaron M. Zigler, Esq.
Alex J. Dravillas, Esq.
KELLER LENKNER LLC
150 North Riverside Plaza, Suite 4270
Chicago, IL 60606
Phone: 312.741.5220
Email: amz@kellerlenkner.com
ajd@kellerlenkner.com
CHICAGO, IL: Faces Pinkston Suit Over Invalid Parking Tickets
-------------------------------------------------------------
ALEC PINKSTON, individually, and on behalf of all others similarly
situated, Plaintiff v. CITY OF CHICAGO, Defendant, Case No.
2019CH12364 (Ill. Cir., Oct. 24, 2019), seeks an order disgorging
and refunding all of the money for fines, penalties, and interest
paid by the Plaintiff and others in connection with invalid parking
Central Business District tickets that were issued outside of that
district.
According to the complaint, on May 21, 2019, the Plaintiff parked
his vehicle in a parking meter zone located at or near 1216 South
Wabash Avenue--i.e., on Wabash Avenue, south of Roosevelt Road.
1216 South Wabash Avenue is located outside the City's Central
Business District, as the southern limit of the Central Business
District ends at Roosevelt Road.
Despite the fact that the Plaintiff's vehicle was parked outside of
the Central Business District on May 21, 2019, he received a
Central Business District Ticket. As a result of his Ticket, the
Plaintiff was subjected to a $65 fine for violation of Section
9-64-190(b) of the Chicago Municipal Code, which he contends he did
not commit. On July 11, 2019, the Plaintiff paid the $65 fine in
connection with the Ticket.
According to a May 14, 2019 news article posted by CBS Chicago,
Matt Chapman, a "self-described data geek" analyzed a dataset
published by ProPublica, which contains information regarding
parking tickets issued by the City of Chicago.
That "Dataset provides details on all parking and vehicle
compliance tickets issued in Chicago from January 1, 1996 to May
14, 2018." The data within the Dataset "includes information on
when, where, and by whom tickets were issued; de-identified license
plates; vehicle make; registration zip code; the violation for
which the vehicle was cited; the payment status and more."
ProPublica also "added block-level address information to the
location where a ticket was issued."
After analyzing the Dataset, Chapman discovered that "from 2013 to
2018 the City issued 30,001 [Central Business District Tickets]
outside the Central Business District," the lawsuit says.[BN]
The Plaintiff is represented by:
Thomas A. Zimmerman, Jr., Esq.
Sharon A. Harris, Esq.
Matthew C. De Re
Nickolas J. Hagman
ZIMMERMAN LAW OFFICES, P.C.
77 W. Washington Street, Suite 1220
Chicago, IL 60602
Telephone: (312) 440 0020
Facsimile: (312) 440 4180
E-mail: tom@attorneyzim.com
sharon@attorneyzim.com
matt@attorneyzim.com
nick@attorneyzim.com
CIOX HEALTH: Knipschield Fraud Suit Removed to E.D. Missouri
------------------------------------------------------------
The class action lawsuit styled as Diana Knipschield, on behalf of
herself and all others similarly situated, Plaintiff v. CIOX
Health, LLC, Defendant, Case No. 1911-CC00911, was removed from the
St. Charles County Court to the U.S. District Court for the Eastern
District of Missouri (St. Louis) on Oct 25, 2019.
The Eastern District of Missouri Court Clerk assigned Case No.
4:19-cv-02908 to the proceeding.
The suit demands $5 billion worth of damages alleging violation of
fraud related laws.
CIOX provides health care information solutions. The company offers
electronic records, release of information, revenue cycle, and
audit management services.
The Plaintiff appears pro se.[BN]
The Defendant is represented by:
Jonathan B. Potts, Esq.
BRYAN CAVE LLP
One Metropolitan Square
211 N. Broadway, Suite 3600
St. Louis, MO 63102
Telephone: (314) 259-2403
Facsimile: (314) 552-8403
E-mail: jonathan.potts@bryancave.com
CITRUS, FL: Alexander, et al. Seek to Certify Class
---------------------------------------------------
DAWN ALEXANDER, LISA VENTIMIGLIA, MICHELE TEWELL, and KELLIE REESE,
on behalf of themselves and others similarly situated, the
Plaintiffs, v. MIKE PRENDERGRAST, as SHERIFF of CITRUS COUNTY,
FLORIDA, the Defendant, Case No. 5:18-cv-00519-JSM-PRL (M.D. Fla.),
Alexander et al. move the Court for class certification of their
lawsuit.
The action is brought pursuant to Title VII of the Civil Rights Act
of 1964, and the Florida Civil Rights Act of 1992, charging that
these CCSO policies have a unlawful disparate impact upon females:
(1) a policy of requiring all sworn employees to submit to a
quarterly mandatory physical abilities tests (PAT Policy); and
(2) the accompanying policies which mandate specific adverse
employment actions against employees who fail the PAT (Accompanying
Policies).[CC]
Attorneys for the Plaintiffs are:
Jay P. Lechner, Esq.
William J. Sheslow, Esq.
WHITTEL & MELTON, LLC
11020 Northcliffe Boulevard
Spring Hill, FL 34608
Telephone: (352)683-2016
Facsimile: (352) 556-4839
E-mail: Lechnerj@theFLlawfirm.com
Will@theFLlawfirm.com
Pleadings@theFLlawfirm.com
Pls@theFLlawfirm.com
COLONIAL FIRST: Slater and Gordon Files Class Action
----------------------------------------------------
Nestegg reports that a law firm has filed a class action on behalf
of the 500,000 Australians who, it says, were charged excessive
superannuation fees to fund ongoing commissions paid by Colonial
First State to financial advisers.
It's the fourth class action Slater and Gordon has instigated since
launching the "Get Your Super Back" campaign in September 2018, and
the second that the law firm has launched against Colonial First
State.
The class action relates to members of the FirstChoice Super fund.
It alleges that since 2013, Colonial First State has failed to act
in the best interests of its members and acted unconscionably by
charging them higher fees to pay for ongoing commissions to
financial advisers who weren't required to provide ongoing services
to members.
Slater and Gordon noted that Colonial had paid financial advisers
or the licensees they worked for over $400 million in commissions
that were funded by charging higher fees to superannuation
members.
Many of those advisers worked for the Commonwealth Bank group,
which made significant profits from retaining these commissions.
The Australian government had banned commissions to financial
advisers for new members because it was clear they were not in
members' best interests back in 2013, but special counsel at Slater
and Gordon, Nathan Rapoport, said that "ever since, Colonial
continued to pay commissions with respect to existing members under
what became known as the 'grandfathering exception', and because of
this it continued charging those members higher fees".
"The Hayne report found there was no justification for continuing
to pay commissions to financial advisers. We agree. Paying these
commissions -- and as a result charging members higher fees --
ripped hundreds of millions of dollars out of members' retirement
savings to profit the financial advisers or the licensees they
worked for who were not required to provide any services in
exchange," the lawyer said.
"We allege that Colonial should have stopped paying the commissions
for all its members and reduced their fees accordingly, as it
properly did for new members."
"At the royal commission, Colonial accepted that some of its
conduct fell below community standards and expectations,"
Mr Rapoport continued.
"This is an understatement."
"We believe Colonial's conduct was in breach of the law and it
should be held to account and required to compensate its members,"
he added.
Colonial had the power to transfer existing FirstChoice Super
members into identical products with lower fees and where
commissions were not paid, the special counsel outlined.
"Rather than use this power for the benefit of its members,
Colonial kept them in the more expensive products, preying on their
passivity so it could continue to charge them higher fees to fund
the commissions."
Earlier this year, CBA divested its interests in the Colonial First
State business. [GN]
COMMUNITY HEALTH: Bid to Appeal Class Certification Order Nixed
---------------------------------------------------------------
Community Health Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 30, 2019,
for the quarterly period ended September 30, 2019, that the company
has filed a petition for permission to appeal the District Court's
class certification order in the Sixth Circuit Court of Appeals and
that petition was denied on October 23, 2019.
Three purported class action cases have been filed in the United
States District Court for the Middle District of Tennessee; namely,
Norfolk County Retirement System v. Community Health Systems, Inc.,
et al., filed May 9, 2011; De Zheng v. Community Health Systems,
Inc., et al., filed May 12, 2011; and Minneapolis Firefighters
Relief Association v. Community Health Systems, Inc., et al., filed
June 21, 2011.
All three seek class certification on behalf of purchasers of the
Company's common stock between July 27, 2006 and April 11, 2011 and
allege that misleading statements resulted in artificially inflated
prices for the Company's common stock.
In December 2011, the cases were consolidated for pretrial purposes
and NYC Funds and its counsel were selected as lead plaintiffs/lead
plaintiffs’ counsel. In lieu of ruling on the Company's motion to
dismiss, the court permitted the plaintiffs to file a first amended
consolidated class action complaint, which was filed on October 5,
2015.
The Company's motion to dismiss was filed on November 4, 2015 and
oral argument was held on April 11, 2016. The Company's motion to
dismiss was granted on June 16, 2016 and on June 27, 2016, the
plaintiffs filed a notice of appeal to the Sixth Circuit Court of
Appeals. The matter was heard on May 3, 2017.
On December 13, 2017, the Sixth Circuit reversed the trial court's
dismissal of the case and remanded it to the District Court. The
Company filed a renewed partial motion to dismiss on February 9,
2018, which was denied by the District Court on September 24, 2018.
The Company also filed a petition for a writ of certiorari to the
United States Supreme Court on April 18, 2018 seeking review of the
Sixth Circuit’s decision. The United States Supreme Court denied
the petition for a writ of certiorari on October 1, 2018. The
District Court granted the Plaintiff's motion for class
certification on July 26, 2019.
The Company filed a petition for permission to appeal the District
Court's class certification order in the Sixth Circuit Court of
Appeals on August 9, 2019, and that petition was denied on October
23, 2019. Trial for this matter is set for December 1, 2020.
The Company believes this consolidated matter is without merit and
will vigorously defend this case.
Community Health Systems, Inc. is one of the largest publicly
traded hospital companies in the United States and a leading
operator of general acute care hospitals and outpatient facilities
in communities across the country. The company provide healthcare
services through the hospitals that the company owns and operate
and affiliated businesses in non-urban and selected urban markets
throughout the United States. The company is based in Franklin,
Tennessee.
COMMUNITY HEALTH: Bid to Dismiss Kirk Class Action Pending
----------------------------------------------------------
Community Health Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 30, 2019,
for the quarterly period ended September 30, 2019, that the company
is seeking dismissal of the class action suit entitled, Becky Kirk,
Perry Ayoob, and Dawn Karzenoski, as representatives of a class of
similarly situated persons, and on behalf of the CHS/Community
Health Systems, Inc. Retirement Savings Plan v. Retirement
Committee of CHS/Community Health Systems, Inc., John and Jane Does
1-20, Principal Life Insurance Company, Principal Management
Corporation, and Principal Global Investors, LLC. That motion is
pending.
This purported class action was filed in the United States District
Court for the Middle District of Tennessee on August 8, 2019. The
plaintiffs seek to represent a class of current and former
participants in the CHS/Community Health Systems, Inc. Retirement
Savings Plan and allege that the defendants breached their
fiduciary duties by offering certain investments in the Plan that
were more expensive and/or did not perform as well as other
marketplace alternatives.
The company filed a motion to dismiss the complaint on October 18,
2019, which is pending.
Community Health said, "We believe these claims are without merit
and will vigorously defend the case."
Community Health Systems, Inc. is one of the largest publicly
traded hospital companies in the United States and a leading
operator of general acute care hospitals and outpatient facilities
in communities across the country. The company provide healthcare
services through the hospitals that the company owns and operate
and affiliated businesses in non-urban and selected urban markets
throughout the United States. The company is based in Franklin,
Tennessee.
COMMUNITY HEALTH: Cyber Attack Claims Bar Date Expired
------------------------------------------------------
Community Health Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 30, 2019,
for the quarterly period ended September 30, 2019, that the
deadline for purported class members in the litigation related to a
2014 data theft incident to submit claims expired August 1, 2019.
On August 18, 2014, the company's computer network was the target
of an external, criminal cyber-attack that the company believes
occurred between April and June, 2014. The company and Mandiant (a
FireEye Company), the forensic expert engaged by the company in
connection with this matter, believe the attacker was a foreign
"Advanced Persistent Threat" group who used highly sophisticated
malware and technology to attack the company's systems. The
attacker was able to bypass the company's security measures and
successfully copy and transfer outside the Company certain
non-medical patient identification data (such as patient names,
addresses, birthdates, telephone numbers and social security
numbers), but not including patient credit card, medical or
clinical information.
The company worked closely with federal law enforcement authorities
in connection with their investigation and prosecution of those
determined to be responsible for this attack. Mandiant has
conducted a thorough investigation of this incident and continues
to advise us regarding security and monitoring efforts. The company
ha provided appropriate notification to affected patients and
regulatory agencies as required by federal and state law. The
company offered identity theft protection services to individuals
affected by this attack. The company incurred certain expenses to
remediate and investigate this matter.
In addition, multiple purported class action lawsuits have been
filed against the company and certain subsidiaries. These lawsuits
allege that sensitive information was unprotected and inadequately
encrypted by the company. The plaintiffs claim breach of contract
and other theories of recovery, and are seeking damages, as well as
restitution for any identity theft.
On February 4, 2015, the United States Judicial Panel on
Multidistrict Litigation ordered the transfer of the purported
class actions pending outside of the District Court for the
Northern District of Alabama to the District Court for the Northern
District of Alabama for coordinated or consolidated pretrial
proceedings.
A consolidated complaint was filed and the company filed a motion
to dismiss on September 21, 2015, which was partially argued on
February 10, 2016. In an oral ruling from the bench, the court
greatly limited the potential class by ruling only plaintiffs with
specific injury resulting from the breach had standing to sue.
Further, on jurisdictional grounds, the court dismissed Community
Health Systems, Inc. from all non-Tennessee based cases.
Finally, the court set April 15, 2016 for further argument on
whether the remaining plaintiffs have sufficiently stated a cause
of action to continue their cases. On April 15, 2016 in an oral
ruling from the bench, the court dismissed additional claims and
following this oral ruling only eight of the forty plaintiffs
remained, with significant limitations imposed on their ability to
assert claims for damages. These oral rulings were confirmed in a
written order filed on September 12, 2016.
On October 20, 2016, the plaintiffs filed a renewed motion for
interlocutory appeal from the motion to dismiss ruling and on
February 15, 2017 this motion was denied. Plaintiffs refiled their
motion for permission to seek interlocutory appeal on March 15,
2017, and that motion was also denied.
Community Health said, "We have settled these class action
lawsuits, and the settlement has been approved by the District
Court. Notices of the settlement and claim forms have been mailed
to purported class members. The deadline for purported class
members to opt out of or object to the settlement was May 18, 2019,
with no purported class members objecting or opting out. The
deadline for purported class members to submit claims was August 1,
2019."
No further updates were provided in the Company's SEC report.
Community Health Systems, Inc. is one of the largest publicly
traded hospital companies in the United States and a leading
operator of general acute care hospitals and outpatient facilities
in communities across the country. The company provide healthcare
services through the hospitals that the company owns and operate
and affiliated businesses in non-urban and selected urban markets
throughout the United States. The company is based in Franklin,
Tennessee.
COMMUNITY HEALTH: Gibson Class Action Notice Approved
-----------------------------------------------------
Community Health Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 30, 2019,
for the quarterly period ended September 30, 2019, that the motion
for approval of notice of class action in the case styled as,
Gibson, individually and on behalf of all others similarly situated
v. National Healthcare of Leesville, Inc. d/b/a Byrd Regional
Medical Center, has been granted.
This case is a purported class action lawsuit filed in the 30th
Judicial District Court for the State of Louisiana and served on
August 3, 2016, claiming our formerly affiliated Leesville,
Louisiana hospital violated payor contracts by allegedly improperly
asserting hospital liens against third-party tortfeasors and
seeking class certifications for any similarly situated plaintiffs.
The court has certified a class and denied the company's motion for
summary judgment.
The company appealed both rulings to the Louisiana Third Circuit
Court of Appeals, which affirmed the trial court's decisions on
March 7, 2019.
The company filed an application for writ of certiorari to the
Louisiana Supreme Court, which was denied on May 29, 2019.
Plaintiff's motion for approval of notice of class action was
granted on October 24, 2019.
Community Health said, "We believe these claims are without merit
and will vigorously defend the case."
Community Health Systems, Inc. is one of the largest publicly
traded hospital companies in the United States and a leading
operator of general acute care hospitals and outpatient facilities
in communities across the country. The company provide healthcare
services through the hospitals that the company owns and operate
and affiliated businesses in non-urban and selected urban markets
throughout the United States. The company is based in Franklin,
Tennessee.
COMMUNITY HEALTH: Padilla Class Action Ongoing in Tennessee
-----------------------------------------------------------
Community Health Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 30, 2019,
for the quarterly period ended September 30, 2019, that the company
continues to defend a class action suit entitled, Caleb Padilla,
individually and on behalf of all others similarly situated v
Community Health Systems, Inc., Wayne T. Smith, Larry Cash, and
Thomas J. Aaron.
This purported federal securities class action was filed in the
United States District Court for the Middle District of Tennessee
on May 30, 2019. It seeks class certification on behalf of
purchasers of the Company's common stock between February 20, 2017
and February 27, 2018 and alleges misleading statements resulted in
artificially inflated prices for the Company's common stock.
No responsive pleading is due to the complaint at this time,
pending the District Court's appointment of a lead plaintiff in the
action and the lead plaintiff's filing of a consolidated complaint.
Community Health said, "We believe this matter is without merit and
will vigorously defend this case."
No further updates were provided in the Company's SEC report.
Community Health Systems, Inc. is one of the largest publicly
traded hospital companies in the United States and a leading
operator of general acute care hospitals and outpatient facilities
in communities across the country. The company provide healthcare
services through the hospitals that the company owns and operate
and affiliated businesses in non-urban and selected urban markets
throughout the United States. The company is based in Franklin,
Tennessee.
COMMUNITY HEALTH: Trial in Zwick Partners Suit Set for July 2020
----------------------------------------------------------------
Community Health Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 30, 2019,
for the quarterly period ended September 30, 2019, that trial in
the class action suit entitled, Zwick Partners, LP and Aparna Rao,
individually and on behalf of all others similarly situated v.
Quorum Health Corporation, Community Health Systems, Inc., Wayne T.
Smith, W. Larry Cash, Thomas D. Miller, and Michael J. Culotta, is
set for July 7, 2020.
This purported class action lawsuit previously filed in the United
States District Court, Middle District of Tennessee was amended on
April 17, 2017 to include Community Health Systems, Inc., Wayne T.
Smith and W. Larry Cash as additional defendants.
The plaintiffs seek to represent a class of Quorum Health
Corporation (QHC) shareholders and allege that the failure to
record a goodwill and long-lived asset impairment charge against
QHC at the time of the spin-off of QHC violated federal securities
laws.
The District Court denied all defendants' motions to dismiss on
April 20, 2018. The plaintiffs moved for class certification.
Plaintiffs also amended their complaint on September 14, 2018.
The company moved to dismiss the additional claims in the
plaintiffs' September 14, 2018 amended complaint and responded to
plaintiffs' class certification motion.
On March 29, 2019, the court granted the company's motion to
dismiss the additional claims. The court granted the plaintiffs'
motion for class certification on that same date. On April 12,
2019, the company filed a petition for permission to appeal the
court's order granting class certification with the United States
Court of Appeals for the Sixth Circuit, which was denied on July
31, 2019. On May 17, 2019, the plaintiffs moved to amend their
complaint for a third time to add additional claims, which the
District Court denied on August 2, 2019.
The trial for this matter is set for July 7, 2020.
Community Health said, "We believe the claims are without merit and
will vigorously defend the case."
Community Health Systems, Inc. is one of the largest publicly
traded hospital companies in the United States and a leading
operator of general acute care hospitals and outpatient facilities
in communities across the country. The company provide healthcare
services through the hospitals that the company owns and operate
and affiliated businesses in non-urban and selected urban markets
throughout the United States. The company is based in Franklin,
Tennessee.
CONAGRA FOODS: Non-California Classes in Allen Suit Decertified
---------------------------------------------------------------
In the case, ERIN ALLEN, et al., Plaintiffs, v. CONAGRA FOODS,
INC., Defendant, Case No. 3:13-cv-01279-WHO (N.D. Cal.), Judge
William H. Orrick of the U.S. District Court for the Northern
District of California dismissed the claims of the non-California
named Plaintiffs and decertified the classes they represented.
The case is about the allegedly misleading calorie count listed on
the label of Conagra's product Parkay Spray. Although California
Plaintiff Allen initiated the action in 2013, the non-California
named Plaintiffs whose claims are before the Court now became part
of it only one year ago.
On March 21, 2013, Plaintiff Allen filed a complaint proposing a
nationwide putative class of people who purchased Parkay Spray
believing it to be a fat- and calorie-free alternative to butter.
After a series of orders by judges who were previously assigned to
the case, it was stayed pending Ninth Circuit decisions on certain
issues in other cases. The California Court granted the parties'
stipulation to lift the stay at the end of 2017, and in September
2018, the Court granted Allen's motion for leave to amend her
complaint to add seven additional named Plaintiffs from states
other than California.
On Dec. 10, 2018, the Court denied in part Conagra's motion to
dismiss.
The Plaintiffs then moved for class certification and on June 22,
2019, the Court denied the Plaintiffs' motion to certify a
nationwide class to pursue unjust enrichment claims. It certified
two multistate subclasses and four individual state classes.
On Aug. 5, 2019, the Plaintiffs filed a motion for reconsideration,
asking that the Court modifies its Class Certification Order in
three respects. It called for a response from Conagra, and in that
response, Conagra not only opposed the Plaintiffs' request but also
argued that it should reconsider its December 2018 Order denying
its motion to dismiss for lack of personal jurisdiction over
non-California named Plaintiffs' claims.
Seeing a need for additional briefing in light of the evolution of
the case, the Court directed Conagra to file a motion for
reconsideration. Conagra did so on Sept. 4, 2019, and the Court
heard argument on Oct. 9, 2019.
Conagra argues that the Court should dismiss the claims by the
non-California named Plaintiffs and decertify the classes they
represented. Without a nationwide class, pendent personal
jurisdiction is no longer appropriate. The Plaintiffs argue that
the Court's prior Order should stand, but even if it agrees with
Conagra that there is no personal jurisdiction, it should transfer
the nonresidents' claims instead of dismissing them.
A review of the Motion to Dismiss Order clearly shows that the
subsequent developments in the case have undermined the basis for
asserting personal jurisdiction over nonresidents' claims, the
Court states. There is no dispute that general jurisdiction over
Conagra lies in Illinois, not in California. Accordingly, each
named Plaintiff must satisfy the requirements of specific personal
jurisdiction.
Now that the Plaintiffs have failed to achieve certification of a
nationwide class, the foundation for the California Court's
decision to exercise of pendent personal jurisdiction is no longer
present. The potential for greater efficiency and the avoidance of
piecemeal litigation are not enough. It is no longer appropriate
to allow the non-California plaintiffs to proceed in the California
Court.
Judge Orrick agrees with Conagra that transfer is not appropriate.
There is little citable Ninth Circuit authority addressing the
question of Section 1631's applicability to issues of personal
jurisdiction. The Plaintiffs' request rests on shaky ground in two
additional respects, the Judge opines. It is not clear whether
Section 1631 permits partial transfer. The Ninth Circuit has not
decided this question, but some courts in the Ninth Circuit have
relied on the plain language of the statute to conclude that only
entire actions may be transferred. Finally, the Plaintiffs have
not persuaded the California Court that transfer is in the interest
of justice. The non-California Plaintiffs intervened in the case
only one year ago, and there is no suggestion that the statute of
limitations would bar them from re-filing their claims in a court
that has personal jurisdiction over Conagra with respect to them.
For these reasons, Judge Orrick granted Conagra's motion for
reconsideration. The claims by the non-resident Plaintiffs Ofelia
Frechette, Shelley Harder, Deana Marr, Tammie Shawley, Brian Smith,
and Betty Vazquez are dismissed.
The Judge decertified the following classes:
a. Subclass #2 (formerly #6): Indiana (Ind. Code Section
24-5-0.5-3(a); Ind. Code Section 24-5-0.5-3(b)(1),
(2), (11)) and Wyoming (Wyo. Stat. Ann. Section
40-12-105(a)(xv); Wyo. Stat. Ann. Section 40-12-105(a)(i),
(iii), (x)), class representatives Frechette and Harder.
b. Individual Subclasses in the following states:
(i) Michigan (Mich. Comp. Laws Ann. Section 445.903(c),
(e), (g)), class representative Smith; (ii) Wisconsin
(Wis. Stat. Section 100.18), class representative Vazquez;
and (iii) Illinois (815 Ill. Comp. Stat. Ann. Section
505/2), class representative Vazquez.
A full-text copy of the Court's Oct. 15, 2019 Order is available at
https://is.gd/p1c0hD from Leagle.com.
Erin Allen, on behalf of herself and all others similarly
situated,
Plaintiff, represented by Adam Gutride -adam@gutridesafier.com --
Gutride Safier LLP, Anthony J. Patek -- anthony@gutridesafier.com
-- Gutride Safier LLP, Kristen Gelinas Simplicio --
kristen@gutridesafier.com -- Gutride Safier LLP, Seth A. Safier --
seth@gutridesafier.com -- Gutride Safier LLP & Ureka Ellie Idstrom
-uidstrom@eurekalawfirm.com -- The Eureka Law Firm.
Ofelia Frechette, Shelley Harder, Deana Marr, Tammie Shawley,
Brian
Smith & Betty Vazquez, on behalf of themselves and all others
similarly situated, Plaintiffs, represented by Anthony J. Patek,
Gutride Safier LLP & Kristen Gelinas Simplicio, Gutride Safier
LLP.
ConAgra Foods, Inc., a Delaware corporation, Defendant,
represented
by Rachel Elizabeth King Lowe -- rachel.lowe@alston.com -- Alston
&
Bird, Andrew G. Phillips -- andrew.phillips@alston.com -- Alston &
Bird LLP, Angela M. Spivey -- angela.spivey@alston.com -- Alston &
Bird LLP, Jamie Smith George -- jamie.george@alston.com -- Alston
and Bird LLP, pro hac vice & Patrick E. Brookhouser, Jr., McGrath
North Mullin & Kratz, PC LLO, 1601 Dodge Street, Omaha, NE
68102FIRST NATIONAL TOWER.
CONTINENTAL GENERAL: Fastrich Suit Settlement Gets Final Court Nod
------------------------------------------------------------------
The United States District Court for the Southern District of Ohio
issued an Order granting final approval of the Settlement Agreement
in the case captioned JOHN FASTRICH and UNIVERSAL INVESTMENT
SERVICES, INC. and REGINALD J. GOOD D/B/A REGINALD J. GOOD AGENCY,
Plaintiffs, v. CONTINENTAL GENERAL INSURANCE COMPANY, GREAT
AMERICAN FINANCIAL RESOURCE, INC., AMERICAN FINANCIAL GROUP, INC.,
LOYAL AMERICAN LIFE INSURANCE COMPANY, and AMERICAN RETIREMENT LIFE
INSURANCE COMPANY, Defendants, Case No. 1:17-cv-00615-MRB, (S.D.
Ohio).
For settlement purposes only, the Court finds that the requirements
of Federal Rule of Civil Procedure 23(a) and 23(b)(3) are met and
certifies the following Settlement Class, as defined as follows:
all persons or entities that, from October 25, 2011 through the
Effective Date of the Settlement Agreement, lost or otherwise were
not paid commissions that were or would have been payable on, or
attributable to, insurance policies or products issued or sold by
the Defendants or Releasees as a result of Defendants or their
affiliates': (1) failing to pay Commissions on premiums paid by
policyholders due to premium rate increases on long-term care
insurance policies (2) failing to properly calculate and/or pay
Commissions in accordance with the vesting provisions of any
agreement(s) with any Defendants or (3) replacing any person or
entity as the agent of record in connection with a sale of any
insurance policy; provided, however, that Settlement Class or Class
Members shall not include: (i) persons or entities that previously
released any of the Claims raised in the Nebraska Action or the
Producer Class Action(ii) Defendants or (iii) Releasees. Also
excluded from the Settlement Class are the persons and/or entities
who request exclusion from the Settlement Class within the time
period set by this Order.
The Court finds and concludes that for settlement purposes the
certification of the Settlement Class is warranted in light of the
Settlement under the prerequisites of Federal Rule of Civil
Procedure 23(a) because: (1) the Members of the Settlement Class
are so numerous that joinder is impracticable (2) there are issues
of law and fact common to the Settlement Class (3) Plaintiffs'
claims are typical of the claims of the Settlement Class Members
and (4) Plaintiffs and Plaintiffs' Counsel will fairly and
adequately represent the interests of the Settlement Class
Members.
The Court finds and concludes that for settlement purposes the
certification of the Settlement Class is warranted in light of the
Settlement under Federal Rule of Civil Procedure 23(b)(3) because
common issues predominate over any questions affecting only
individual Members of the Settlement Class, and settlement of this
Action on a class basis is superior to other means of resolving the
Action.
Based on the evidence presented at the hearing, the Court finds
that notice has been given to Class Members pursuant to and in
compliance with the Preliminary Approval Order and the Settlement
Agreement, and that the notice and the notice methodology adopted
pursuant to the Preliminary Approval Order and the Settlement
Agreement was reasonable and the best notice practicable, satisfied
due process requirements; and provided Class Members with fair and
adequate notice of the certification of the Settlement Class and of
the Settlement Fairness Hearing; provided adequate information
concerning the hearing, the right to be excluded from the
Settlement Class, the settlement, and the right of counsel for
Plaintiffs to apply for an award of attorneys' fees and expenses.
Accordingly, the Notice and the Claim Form are finally approved as
fair, reasonable, and adequate.
The Court confirms the appointment of Plaintiffs John Fastrich,
Universal Investment Services, Inc., and Reginald J. Good D/B/A
Reginald J. Good Agency as the Settlement Class Representatives.
The Court confirms that the Settlement Class Representatives will
fairly and adequately protect the interests of the Settlement Class
because: (1) the interests of the Settlement Class Representatives
are consistent with those of the Settlement Class Members; (2)
there appear to be no conflicts between or among the Settlement
Class Representatives and the other Settlement Class Members; (3)
the Settlement Class Representatives have been and appear to be
capable of continuing to be an active participant in the
prosecution and settlement of this litigation; and (4) the
Settlement Class Representatives and the Settlement Class Members
are represented by qualified, reputable counsel who are experienced
in preparing and prosecuting large, complicated class action
cases.
The Settlement Agreement provides that, in exchange for the release
described in the Settlement Agreement and this Settlement Order,
Defendants will pay $1,250,000 by wire transfer the Settlement
Amount into an escrow account, which will be established at a bank
by Class Counsel. The Settlement Amount will be allocated as set
forth in the Allocation Plan.
The Allocation Plan is approved as fair and reasonable, and in the
best interests of the Class, and Class Counsel and Strategic Claims
Services are directed to administer the Settlement Agreement in
accordance with its terms and provisions. Disbursements of the
Settlement Funds to eligible Class Members who timely submit proper
Claim forms shall be made by Strategic Claims Services in the
manner, within the time periods, and under the terms and conditions
provided in the Settlement Agreement and Allocation Plan.
The Court finds that Plaintiffs and counsel for Plaintiffs and the
Settlement Class, Shindler, Anderson, Goplerud & Weese, P.C.,
RoscaLaw LLC, Peiffer Wolf Carr & Kane, APLC, and Whitfield & Eddy
P.L.C. have fairly and adequately represented the interests of the
Settlement Class.
A full-text copy of the District Court's October 7, 2019 Order is
available at https://tinyurl.com/voufcx6 from Leagle.com.
John Fastrich & Universal Investment Services, Inc., Plaintiffs,
represented by James Paul Booker- jbooker@pwcklegal.com - Peiffer
Rosca Wolf Abdullah Carr & Kane, 5015 Grand Ridge Drive, Suite 100,
West Des Moines, IA 50265, Lydia M. Floyd , Brandon M. Bohlman ,
Shindler, Anderson, Goplerud & Weese, PC, 5015 Grand Ridge Drive,
Suite 100, West Des Moines, IA 50265, pro hac vice, Brian O. Marty
, Shindler, Anderson, Goplerud & Weese, PC, 5015 Grand Ridge Drive,
Suite 100, West Des Moines, IA 50265, pro hac vice, J. Barton
Goplerud , Shindler, Anderson, Goplerud & Weese, PC, 5015 Grand
Ridge Drive, Suite 100, West Des Moines, IA 50265, pro hac vice,
Thomas S. Reavely - reavely@whitfieldlaw.com - WHITFIELD & EDDY,
P.L.C., pro hac vice & Alan L. Rosca - rosca@lawgsp.com - RoscaLaw
LLC.
Reginald J. Good, doing business as Reginald J. Good Agency,
Plaintiff, represented by James Paul Booker , Peiffer Rosca Wolf
Abdullah Carr & Kane, Brian O. Marty , Shindler, Anderson, Goplerud
& Weese, PC, pro hac vice, J. Barton Goplerud , Shindler, Anderson,
Goplerud & Weese, PC, pro hac vice, Thomas S. Reavely , WHITFIELD &
EDDY, P.L.C., pro hac vice & Alan L. Rosca , RoscaLaw LLC.
Great American Financial Resources, Inc., Defendant, represented by
Brian P. Muething - bmuething@kmklaw.com - Keating Muething &
Klekamp, Jacob DeNiro Rhode - jrhode@kmklaw.com - Keating Muething
& Klekamp PLL & James R. Matthews - jmatthews@kmklaw.com - Keating
Muething & Klekamp.
Continental General Insurance Company, Defendant, represented by
Susanne M. Cetrulo - Susanne@cetrulolaw.com - Cetrulo, Mowery &
Hicks, PSC, Sheldon E. Eisenberg - sheldon.eisenberg dbr.com -
Drinker Biddle & Reath LLP, pro hac vice & Steven H. Brogan ,
Drinker Biddle & Reath LLP, 1800 Century Park East, Suite 1400 Los
Angeles, California 90067-1517, pro hac vice.
DIEBOLD NIXDORF: Securities Class Suits Ongoing in NY and Ohio
--------------------------------------------------------------
Diebold Nixdorf, Incorporated said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 29, 2019,
for the quarterly period ended September 30, 2019, that in July and
August 2019, shareholders filed putative class action lawsuits
alleging violations of federal securities laws in the United States
District Court for the Southern District of New York and the
Northern District of Ohio.
The lawsuits collectively assert that the Company and three former
officers made material misstatements regarding the Company's
business and operations, causing the Company's common stock to be
overvalued during from February 14, 2017 to August 1, 2018.
Diebold said, "The Company anticipates that these lawsuits, along
with any other potential lawsuits addressing the same topic, will
be consolidated into one action. The Company denies any liability,
believes the claims are without merit and intends to vigorously
defend itself in these matters."
No further updates were provided in the Company's SEC report.
Diebold Nixdorf, Incorporated, incorporated on August 11, 1876,
provides connected commerce services, software and technology. The
Company's geographic segments include North America (NA), Asia
Pacific (AP), Europe, Middle East and Africa (EMEA), and Latin
America (LA). These segments sell and service financial
self-service (FSS), retail solutions and security systems. The
Company provides connected commerce solutions to financial
institutions. The company is based in North Canton, Ohio.
DISCOVER FINANCIAL: B&R Supermarket Class Action Ongoing
--------------------------------------------------------
Discover Financial Services said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the company
continues to defend a class action suit entitled, B&R Supermarket,
Inc., d/b/a Milam's Market, et al. v. Visa, Inc. et al.
On March 8, 2016, a class action lawsuit was filed against the
Company, other credit card networks, other issuing banks, and EMVCo
in the U.S. District Court for the Northern District of California
(B&R Supermarket, Inc., d/b/a Milam's Market, et al. v. Visa, Inc.
et al.) alleging violations of the Sherman Antitrust Act,
California's Cartwright Act, and unjust enrichment.
Plaintiffs allege a conspiracy by defendants to shift fraud
liability to merchants with the migration to the EMV security
standard and chip technology. Plaintiffs assert joint and several
liability among the defendants and seek unspecified damages,
including treble damages, attorneys' fees, costs and injunctive
relief.
On July 15, 2016, plaintiffs filed an amended complaint that
includes additional named plaintiffs, reasserts the original
claims, and includes additional state law causes of action. On
September 30, 2016, the court granted the motions to dismiss for
certain issuing banks and EMVCo but denied the motions to dismiss
filed by the networks, including the Company.
In May 2017, the Court entered an order transferring the entire
action to a federal court in New York that is presiding over
certain related claims that are pending in the actions consolidated
as MDL 1720. On March 11, 2018, the Court entered an order denying
the plaintiffs' motion for class certification without prejudice to
filing a renewed motion. Plaintiffs filed a renewed motion for
class certification on July 16, 2018 and opening merits expert
reports on October 5, 2018.
Defendants filed their Opposition to Class Certification on March
15, 2019. Briefing and expert discovery related to class
certification has ended; and a hearing date on class certification
is yet to be scheduled.
Discover Financial said, "The Company is not in a position at this
time to assess the likely outcome or its exposure, if any, with
respect to this matter, but will seek to vigorously defend against
all claims asserted by the plaintiffs."
Discover Financial Services operates as a credit card issuer and
electronic payment services company. The Company issues credit
cards and offers student and personal loans, as well as savings
products such as certificates of deposit and money market accounts.
Discover Financial Services manages automated teller machine
networks. The company is based in Riverwoods, Illinois.
DREAM TEAM: Puma Seeks Minimum & OT Wages for Restaurant Staff
--------------------------------------------------------------
GERMAN PUMA, on behalf of himself and others similarly situated,
Plaintiff v. DREAM TEAM PARTNERS, LLC d/b/a RICE 'N BEANS and SALLY
CHIRONIS, the Defendants, Case No. 1:19-cv-09824 (S.D.N.Y., Oct.
24, 2019), seeks to recover unpaid minimum wages, unpaid overtime
compensation, liquidated damages, prejudgment and post-judgment
interest, and attorneys' fees and costs pursuant to the Fair Labor
Standards Act, the New York Labor Law, and the New York State Wage
Then Prevention Act.
The Plaintiff was first hired to work at the Defendants' Restaurant
to work as a non-exempt dishwasher, kitchen helper/food preparer,
food delivery worker, and porter. The Plaintiff worked at the
Restaurant in those capacities until August 20, 2019. The work
performed by the Plaintiff is directly essential to the business
operated by Defendants.
The Defendants knowingly and willfully refuse to pay the Plaintiff
and others similarly situated their lawfully earned minimum wages
in direct contravention of the FLSA and New York Labor Law, the
lawsuit says.
Dream Team owns and operates Brazilian restaurant known as "Rice 'N
Beans," located at 744 Ninth Avenue, in New York City. Ms. Chironis
is a partner, owner, director, proprietor, supervisor, and/or
managing agent of Dream Team.[BN]
The Plaintiff is represented by:
Justin Cilenti, Esq.
Peter H. Cooper, Esq.
CILENTI & COOPER, PLLC
10 Grand Central
155 East 44 Street, 6th Floor
New York, NY 10017
Telephone (212) 209 3933
Facsimile (212) 209-7102
E-mail: info@jcpclaw.com
EDISON INT'L: April Trial in Suit over Thomas & Koenigstein Fire
----------------------------------------------------------------
Edison International said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2019, for the
quarterly period ended September 30, 2019, that a bellwether jury
trial on certain Thomas and Koenigstein Fire related suits is
scheduled for April 20, 2020.
In December 2017, wind-driven wildfires impacted portions of SCE's
service territory, causing substantial damage to both residential
and business properties and service outages for SCE customers. The
Ventura County Fire Department (VCFD) and the California
Department
of Forestry and Fire Protection (CAL FIRE) have determined that the
largest of the 2017 fires originated on December 4, 2017, in the
Anlauf Canyon area of Ventura County (the investigating agencies
refer to this fire as the "Thomas Fire"), followed shortly
thereafter by the Koenigstein Fire. According to CAL FIRE, the
Thomas and Koenigstein Fires burned over 280,000 acres, destroyed
or damages an estimated 1,343 structures and resulted in two
fatalities.
As of October 24, 2019, SCE was aware of at least 198 lawsuits,
representing approximately 3,000 plaintiffs, related to the Thomas
and Koenigstein Fires naming SCE as a defendant. Ninety-eight of
these lawsuits also name Edison International as a defendant based
on its ownership and alleged control of SCE. At least four of the
lawsuits were filed as purported class actions.
The lawsuits, which have been filed in the superior courts of
Ventura, Santa Barbara and Los Angeles Counties allege, among other
things, negligence, inverse condemnation, trespass, private
nuisance, and violations of the public utilities and health and
safety codes. The lawsuits have been coordinated in the Los Angeles
Superior Court. Three categories of plaintiffs have filed lawsuits
against SCE and Edison International relating to the Thomas Fire,
Koenigstein Fire and Montecito Mudslides: individual plaintiffs,
subrogation plaintiffs and public entity plaintiffs.
An initial jury trial for a limited number of plaintiffs, sometimes
referred to as a bellwether jury trial, on certain fire only
matters is scheduled for April 20, 2020.
Edison International, through its subsidiaries, engages in the
generation, transmission, and distribution of electricity in the
United States. It generates electricity through hydroelectric,
diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic
sources. Edison International was founded in 1886 and is based in
Rosemead, California. Edison International, incorporated on April
20, 1987, is the holding company of Southern California Edison
Company (SCE).
EDISON INT'L: Bellwether Trial in Woolsey Fire Litig. in July 2020
------------------------------------------------------------------
Edison International said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2019, for the
quarterly period ended September 30, 2019, that a bellwether jury
trial in the Woolsey Fire related suit is scheduled for July 2020.
In November 2018, wind-driven wildfires impacted portions of SCE's
service territory and caused substantial damage to both residential
and business properties and service outages for SCE customers. The
largest of these fires, known as the Woolsey Fire, originated in
Ventura County and burned acreage located in both Ventura and Los
Angeles Counties. According to CAL FIRE, the Woolsey Fire burned
almost 100,000 acres, destroyed an estimated 1,643 structures,
damaged an estimated 364 structures and resulted in three
fatalities. Two additional fatalities have also been associated
with the Woolsey Fire.
As of October 24, 2019, SCE was aware of at least 102 lawsuits,
representing approximately 3,000 plaintiffs, related to the Woolsey
Fire naming SCE as a defendant. Eighty-six of these lawsuits also
name Edison International as a defendant based on its ownership and
alleged control of SCE.
At least two of the lawsuits were filed as purported class actions.
The lawsuits, which have been filed in the superior courts of
Ventura and Los Angeles Counties allege, among other things,
negligence, inverse condemnation, personal injury, wrongful death,
trespass, private nuisance, and violations of the public utilities
and health and safety codes.
The Woolsey Fire lawsuits have been coordinated in the Los Angeles
Superior Court. Three categories of plaintiffs have filed lawsuits
against SCE and Edison International relating to the Woolsey Fire:
individual plaintiffs, subrogation plaintiffs and public entity
plaintiffs.
An initial jury trial for a limited number of plaintiffs on certain
matters, sometimes referred to as a bellwether jury trial, is
scheduled in July 2020.
Edison International, through its subsidiaries, engages in the
generation, transmission, and distribution of electricity in the
United States. It generates electricity through hydroelectric,
diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic
sources. Edison International was founded in 1886 and is based in
Rosemead, California. Edison International, incorporated on April
20, 1987, is the holding company of Southern California Edison
Company (SCE).
EQUIFAX: Used "Admin" as Password on Portal, Class Action Claims
----------------------------------------------------------------
Kate O'Flaherty, writing for Forbes, reports that the Equifax
breach took place in 2017, but even two years later, it is still
regarded as one of the worst of all time. The Equifax breach
happened because the firm failed to patch a web server, which is
itself a very basic error. But now a class action lawsuit shows
that things were allegedly even worse.
Brace yourself, because this isn't going to make pretty reading,
especially if you're a cybersecurity professional. According to the
filing in the U.S. District Court for the Northern District of
Georgia, Atlanta Division, Equifax was protecting sensitive
personal information on a portal used to manage credit disputes
with the username "admin."
And if that wasn't enough, the password protecting that data was
probably the first one an attacker would guess: Yes that's right,
it was also "admin," according to the lawsuit.
The class action lawsuit calls this "a sure-fire way to get
hacked."
But that is not all. The lawsuit also points out that Equifax was
storing unencrypted user data on a public facing server–so it
could have been viewed by any attacker who chose to compromise it.
Meanwhile, Equifax didn't encrypt its mobile applications either -
and when it did encrypt data, it left the encryption keys on the
same public facing servers.
The Equifax breach fallout
The Equifax breach in 2017 exposed the sensitive information
including social security numbers and personal addresses of 147
million people across the world. In July this year, Equifax got
fined $700 million for the hack, with $425 million of that due to
go into a fund to compensate affected customers.
The Equifax cash payment is capped at a hefty $20,000, but it's
looking increasingly unlikely that many people will even get the
lower $125, after the FTC later confirmed that Equifax couldn't, in
fact, afford the promised payout. Instead, affected customers have
been offered free credit monitoring–probably something you
wouldn't trust Equifax with given what happened.
Even two years later, details about the Equifax mega breach
continue to emerge. If one thing can be learnt by other firms, it's
that poor cybersecurity practices can be truly devastating to your
customers, your future revenue and ultimately your brand. [GN]
FACEBOOK INC: Must Face $35BB Facial Recognition Suit in Illinois
-----------------------------------------------------------------
The Sentinel reports that a court in the US has denied Facebook's
request to quash $35 billion class-action lawsuits against its
alleged misuse of facial recognition data in Illinois. A
three-judge panel of the ninth circuit judges in San Francisco
rejected Facebook's plea and the case will now go to trial unless
the Supreme Court intervenes, TechCrunch reported on Oct. 18. "The
suit alleges that Illinois citizens didn't consent to have their
uploaded photos scanned with facial recognition and weren't
informed of how long the data would be saved when the mapping
started in 2011," the report added.
Facebook could face $1,000 to $5,000 in penalties per user for
seven million people, which could reach a maximum of $35 billion.
Facebook started the facial recognition technology in 2011, when it
would ask users to identify if people tagged in photos were friends
they knew. The facial recognition software "invades an individual's
private affairs and concrete interests," said the judges.
"Facebook's facial recognition technology violated Illinois's
Biometric Information Privacy Act (BIPA)," said the court document.
"Violations of the procedures in BIPA actually harmed or posed a
material risk of harm to those privacy interests," it added. BIPA
provides for $1,000 dollars for each negligent violation and $5,000
for each intentional or reckless violation.
The lawsuit could make Facebook face billions of dollars in
potential damages if it eventually loses the legal battle.
"Facebook has always told people about its use of face recognition
technology and given them control over whether it's used for them.
We are reviewing our options and will continue to defend ourselves
vigorously," Facebook said in a statement. The class-action poses a
greater penalty than the record-breaking $5 billion settlement
Facebook agreed to pay the US Federal Trade Commission (FTC). [GN]
FEDEX SUPPLY: Carmello Sues Over Collection of Biometric Data
-------------------------------------------------------------
Cedric Carmello, individually and on behalf of all others similarly
situated v. FEDEX SUPPLY CHAIN, INC., a Delaware corporation, Case
No. 2019CH12997 (Ill. Cir., Cook Cty., Nov. 8, 2019), is brought
against the Defendant for violating the Illinois Biometric
Information Privacy Act.
Despite the substantial privacy risks created by the collection and
storage of biometric data, and the decade-old prohibition on
collecting and retaining biometric data in Illinois without
informed consent, the Defendant uses a biometric time-tracking
system that requires its workers to use their fingerprints as a
means of authentication, the Plaintiff alleges. When the
Defendant's Illinois workers began their employment, the Defendant
requires them to scan their fingerprints into a database. The
Defendant's scanning and retention of workers' fingerprints without
informed consent is clearly unlawful in Illinois. The Defendant
also fails to inform its workers of the extent and purposes for
which it collects their biometric data and whether the data is
disclosed to third parties, says the complaint.
Plaintiff Cedric Carmello is a natural person and a citizen of the
State of Illinois residing in Madison County.
The Defendant operates logistics and cargo facilities across the
state, including a facility located in Edwardsville, Illinois.[BN]
The Plaintiff is represented by:
Aaron M. Zigler, Esq.
Alex J. Dravillas, Esq.
KELLER LENKNER LLC
150 North Riverside Plaza, Suite 4270
Chicago, IL 60606
Phone: 312.741.5220
Email: amz@kellerlenkner.com
ajd@kellerlenkner.com
FULL WHEEL: Lock Seeks Minimum Wages for Fitness Instructors
------------------------------------------------------------
CAMELLIA LOCK, an individual and on behalf of all others similarly
situated, the Plaintiff, vs. FULL WHEEL, LLC, a California limited
liability company; SUHAIL MAQSOOD, an individual; and CARL R.
MORLEY, an individual; and DOES 1-50, inclusive, the Defendants,
Case No. CGC-19-579541 (Cal. Super., Sept. 26, 2019), alleges that
Defendants failed to pay minimum wages, failed to pay for
nonproductive time, and made unlawful deductions from wages under
the California Labor Code.
Camellia Lock was employed by the Defendants between approximately
February 2019 and August 2019.
Specifically, the Defendants intentionally misclassified many or
all of their fitness instructors as independent contractors instead
of employees for the purpose of avoiding paying the cost of
benefits guaranteed to employees in California, the lawsuit
says.[BN]
Counsel for the Plaintiff are:
Patrick R. Kitchin, Esq.
KITCHIN LEGAL, APC
312 Sutter Street, Suite 316
San Francisco, CA 94108
Telephone: (415) 677-9058
E-mail: prk@kitchinlegal.com
GARRISON PROPERTY: Philips Suit Moved to Northern Dist. of Alabama
------------------------------------------------------------------
The class action lawsuit styled as Walker T. Philips individually
and on behalf of all others similarly situated, the Plaintiff, vs.
Garrison Property & Casualty Insurance Company, a United Services
Automobile Association subsidiary; and CCC Information Services,
Inc., the Defendants, Case No. 19-904168, was removed from the
Jefferson County Circuit Court, to the U.S. District Court for the
Northern District of Alabama (Southern) on Oct. 22, 2019.
The suit alleges violation of Insurance related laws. The case is
assigned to the Hon. Magistrate Judge John E. Ott.
Garrison Property operates as an insurance company. The Company
provides property and casualty insurance services. Garrison
Property & Casualty Insurance serves customers in the United
States.[BN]
Attorneys for the Plaintiff are:
Jonathan H. Waller, Esq.
WALLER LAW OFFICE PC
2001 Park Place Suite 900
Birmingham, AL 35203
Telephone: (205) 313-7330
E-mail: jwaller@waller-law.com
Attorneys for Garrison Property & Casualty Insurance Company, are:
Joshua R. Hess, Esq.
Thomas J. Butler, Esq.
MAYNARD COOPER & GALE PC
1901 Sixth Avenue North Suite 2400
Birmingham, AL 35203
Telephone: (205) 254-1000
Facsimile: (205) 254-1999
E-mail: jhess@maynardcooper.com
tbutler@maynardcooper.com
Attorneys for CCC Information Services Inc. are:
Marguerite M. Sullivan, Esq.
LATHAM & WATKINS, LLP
330 North Wabash Avenue, Ste. 2800
Chicago, IL 60611
Telephone: (202) 637-2200
Facsimile: (202) 637-2201
E-mail: marguerite.sullivan@lw.com
GENDLIN & LIVERMAN: Certification of Two Classes Sought
-------------------------------------------------------
In the class action lawsuit styled as GREGORY KARAS, and ANDREA
THUNHORST, individually and on behalf of all others similarly
situated, the Plaintiffs, vs. GENDLIN, LIVERMAN & RYMER, S.C., and
ANDREW R. LIVERMAN, and TIMOTHY J. RYMER, the Defendants, Case No.
19-CV-1291-JPS (E.D. Wisc.), the parties ask the Court for an order
certifying two classes:
Investigator Class:
"all persons who are or have been employed by Defendants as an
Investigator in Wisconsin at any time since November 5, 2016";
and
Paralegal Class:
"all persons who are or have been employed by Defendants as a
Paralegal in Wisconsin at any time since November 5, 2016."[CC]
Attorneys for the Plaintiffs are:
Larry A. Johnson, Esq.
Summer H. Murshid, Esq.
Timothy P. Maynard, Esq.
HAWKS QUINDEL, S.C.
222 E Erie Street, Suite 210
Milwaukee, WI 53202
Telephone: (414) 271-8650
Facsimile: (414) 271-8442
E-mail: ljohnson@hq-law.com
smurshid@hq-law.com
tmaynard@hq-law.com
Attorneys for the Defendants are:
Joseph E. Gumina, Esq.
Erica N. Reib, SBN 1084760
Christa Wittenberg SBN 1096703
O'NEIL, CANNON, HOLLMAN, DEJONG & LAING S.C.
111 E. Wisconsin Avenue, Suite 1400
Milwaukee, WI 53202
Telephone: (414) 276-5000
Facsimile: (414) 276-6581
E-mail: Joseph.gumina@wilaw.com
Erica.reib@wilaw.com
Christa.wittenberg@wilaw.com
GENERAL MOTORS: Defective Airbag Inflators Class Suits Ongoing
--------------------------------------------------------------
General Motors Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2019, for the
quarterly period ended September 30, 2019, that through October 15,
the company is aware of five putative class actions filed against
GM in federal court in the U.S., one putative class action in
Mexico, one putative class action in Israel and three putative
class actions pending in various Provincial Courts in Canada
arising out of allegations that airbag inflators manufactured by
Takata are defective.
General Motors said, "At this early stage of these proceedings, we
are unable to provide an evaluation of the likelihood that a loss
will be incurred or an estimate of the amounts or range of possible
loss."
No further updates were provided in the Company's SEC report.
General Motors Company designs, builds, and sells cars, trucks,
crossovers, and automobile parts worldwide. The company operates
through GM North America, GM International, GM Cruise, and GM
Financial. General Motors Company was founded in 1908 and is
headquartered in Detroit, Michigan.
GENWORTH FINANCIAL: Agreement in Principle Reached in Skochin Suit
------------------------------------------------------------------
Genworth Financial, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the parties in the
case, Jerome Skochin, Susan Skochin, and Larry Huber, individually
and on behalf of all other persons similarly situated v. Genworth
Financial, Inc. and Genworth Life Insurance Company, have reached
an agreement in principle to settle the matter.
In January 2019, Genworth Financial and Genworth Life Insurance
Company (GLIC) were named as defendants in a putative class action
lawsuit pending in the United States District Court for the Eastern
District of Virginia captioned Jerome Skochin, Susan Skochin, and
Larry Huber, individually and on behalf of all other persons
similarly situated v. Genworth Financial, Inc. and Genworth Life
Insurance Company.
Plaintiffs seek to represent long-term care insurance
policyholders, alleging that Genworth made misleading and
inadequate disclosures regarding premium
increases for long-term care insurance policies.
The complaint asserts claims for breach of contract, fraud,
fraudulent inducement and violation of Pennsylvania's Unfair Trade
Practices and Consumer Protection Law (on behalf of the two named
plaintiffs who are Pennsylvania residents), and seeks damages
(including statutory treble damages under Pennsylvania law) in
excess of $5 million.
On March 12, 2019, the company moved to dismiss plaintiffs'
complaint. On March 26, 2019, plaintiffs filed a memorandum in
opposition to the company's motion to dismiss, which the company
replied to on April 1, 2019. In July 2019, the court heard oral
arguments on the company's motion to dismiss. On August 29, 2019,
the Court issued an order granting the company's motion to dismiss
the claim with regard to breach of contract, but denied the
company's motion with regard to fraudulent omission, fraudulent
inducement and violation of the Pennsylvania Unfair Trade Practices
and Consumer Protection law.
On September 20, 2019, plaintiffs filed an amended complaint,
dropping Genworth Financial as a defendant and reducing their
causes of action from four counts to two: fraudulent inducement by
omission and violation of Pennsylvania’s Unfair Trade Practices
and Consumer Protection Law (on behalf of the two named plaintiffs
who are Pennsylvania residents). The trial is scheduled to commence
on March 23, 2020 and conclude on April 3, 2020.
The parties have been engaging in a mediation process for the past
several weeks, and on October 22, 2019, reached an agreement in
principle to settle this matter on a nationwide basis. The parties
will need to enter into a definitive settlement agreement, file for
approval of the settlement with the Court, and have the Court
approve the settlement in order to finalize the settlement of this
matter, and no assurance can be given that a final settlement will
be reached.
Genworth Financial said, "If we enter into a settlement agreement
consistent with the agreement in principle we reached on October
22, 2019, we do not anticipate the result to
have a material negative impact on our results of operations or
financial position. If we do not enter into a final settlement, we
intend to continue to vigorously defend this action."
Genworth Financial, Inc. provides insurance and homeownership
solutions in the United States and internationally. It operates
through five segments: U.S. Mortgage Insurance, Canada Mortgage
Insurance, Australia Mortgage Insurance, U.S. Life Insurance, and
Runoff. Genworth Financial, Inc. was founded in 1871 and is
headquartered in Richmond, Virginia.
GENWORTH FINANCIAL: Awaits 11th Cir.'s Decision in TVPX ARX Suit
----------------------------------------------------------------
Genworth Financial, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the plaintiff's
appeal and the company's cross-appeal in the class action suit
entitled, TVPX ARX INC., as Securities Intermediary for
Consolidated Wealth Management, LTD. on behalf of itself and all
others similarly situated v. Genworth Life and Annuity Insurance
Company, is now fully briefed and waiting for disposition by the
U.S. Court of Appeals for the Eleventh Circuit.
In September 2018, Genworth Life and Annuity Insurance Company
("GLAIC"), the company's indirect wholly-owned subsidiary, was
named as a defendant in a putative class action lawsuit pending in
the United States District Court for the Eastern District of
Virginia captioned TVPX ARX INC., as Securities Intermediary for
Consolidated Wealth Management, LTD. on behalf of itself and all
others similarly situated v. Genworth Life and Annuity Insurance
Company.
Plaintiff alleged unlawful and excessive cost of insurance charges
were imposed on policyholders. The complaint asserts claims for
breach of contract, alleging that Genworth improperly considered
non-mortality factors when calculating cost of insurance rates and
failed to decrease cost of insurance charges in light of improved
expectations of future mortality, and seeks unspecified
compensatory damages, costs, and equitable relief.
On October 29, 2018, the company filed a motion to enjoin the case
in the Middle District of Georgia, and a motion to dismiss and
motion to stay in the Eastern District of Virginia. The company
moved to enjoin the prosecution of the Eastern District of Virginia
action on the basis that it involves claims released in a prior
nationwide class action settlement that was approved by the Middle
District of Georgia.
Plaintiff filed an amended complaint on November 13, 2018. On
December 6, 2018, the company moved the Middle District of Georgia
for leave to file its counterclaim, which alleges that plaintiff
breached the covenant not to sue contained in the prior settlement
agreement by filing its current action. On March 15, 2019, the
Middle District of Georgia granted the company's motion to enjoin
and denied the company's motion for leave to file our counterclaim.
As such, plaintiff is enjoined from pursuing its class action in
the Eastern District of Virginia.
On March 29, 2019, plaintiff filed a notice of appeal in the Middle
District of Georgia, notifying the court of its appeal to the
United States Court of Appeals for the Eleventh Circuit from the
order granting the company's motion to enjoin.
On March 29, 2019, the company filed its notice of cross-appeal in
the Middle District of Georgia, notifying the Court of the
company's cross-appeal to the Eleventh Circuit from the portion of
the order denying the company's motion for leave to file its
counterclaim. On April 8, 2019, the Eastern District of Virginia
dismissed the case without prejudice, with leave for plaintiff to
refile an amended complaint only if a final appellate court
decision vacates the injunction and reverses the Middle District of
Georgia's opinion. On May 21, 2019, plaintiff filed its appeal and
memorandum in support in the Eleventh Circuit.
The company filed its response to plaintiff's appeal memorandum on
July 3, 2019. Plaintiff's appeal and the company's cross-appeal is
now fully briefed and waiting for disposition by the Eleventh
Circuit.
Genworth said, "We intend to continue to vigorously defend the
dismissal of this action."
Genworth Financial, Inc. provides insurance and homeownership
solutions in the United States and internationally. It operates
through five segments: U.S. Mortgage Insurance, Canada Mortgage
Insurance, Australia Mortgage Insurance, U.S. Life Insurance, and
Runoff. Genworth Financial, Inc. was founded in 1871 and is
headquartered in Richmond, Virginia.
GENWORTH FINANCIAL: Burkhart Class Action Ongoing
-------------------------------------------------
Genworth Financial, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the company
continues to defend a class action suit entitled, Richard F.
Burkhart, William E. Kelly, Richard S. Lavery, Thomas R. Pratt,
Gerald Green, individually and on behalf of all other persons
similarly situated v. Genworth et al.
In September 2018, Genworth Financial, Genworth Holdings, Genworth
North America Corporation, GFIH and Genworth Life Insurance Company
("GLIC") were named as defendants in a putative class action
lawsuit pending in the Court of Chancery of the State of Delaware
captioned Richard F. Burkhart, William E. Kelly, Richard S. Lavery,
Thomas R. Pratt, Gerald Green, individually and on behalf of all
other persons similarly situated v. Genworth et al.
Plaintiffs allege that GLIC paid dividends to its parent and
engaged in certain reinsurance transactions causing it to maintain
inadequate capital capable of meeting its obligations to GLIC
policyholders and agents. The complaint alleges causes of action
for intentional fraudulent transfer and constructive fraudulent
transfer, and seeks injunctive relief.
The company moved to dismiss this action in December 2018. On
January 29, 2019, plaintiffs exercised their right to amend their
complaint. On March 12, 2019, the company moved to dismiss
plaintiffs' amended complaint. On April 26, 2019, plaintiffs filed
a memorandum in opposition to the company's motion to dismiss,
which the company replied to on June 14, 2019. On August 7, 2019,
plaintiffs filed a motion, seeking to prevent proceeds that GFIH
expects to receive from the planned sale of its shares in Genworth
MI Canada Inc. from being transferred out of GFIH.
On September 11, 2019, plaintiffs filed a renewed motion seeking
the same relief from their August 7, 2019 motion with an exception
that allows GFIH to transfer $450 million of expected proceeds from
the sale of Genworth Canada through a dividend to Genworth Holdings
to allow the pay off of a senior secured term loan facility dated
March 7, 2018 among Genworth Holdings as the borrower, GFIH as the
limited guarantor and the lending parties thereto.
Oral arguments on the company's motion to dismiss and plaintiffs'
motion occurred on October 21, 2019.
Genworth said, "We intend to continue to vigorously defend this
action."
Genworth Financial, Inc. provides insurance and homeownership
solutions in the United States and internationally. It operates
through five segments: U.S. Mortgage Insurance, Canada Mortgage
Insurance, Australia Mortgage Insurance, U.S. Life Insurance, and
Runoff. Genworth Financial, Inc. was founded in 1871 and is
headquartered in Richmond, Virginia.
GODIVA CHOCOLATIER: Thorne Sues Over Blind-Inaccessible Gift Cards
------------------------------------------------------------------
Braulio Thorne, on behalf of himself and all other persons
similarly situated v. GODIVA CHOCOLATIER, INC., Case No.
1:19-cv-10402 (S.D.N.Y., Nov. 8, 2019), is brought against the
Defendant for its failure to sell store gift cards to consumers
that contain writing in Braille so they will be fully accessible to
and independently usable by the Plaintiff and other blind or
visually-impaired people.
The Defendant's denial of full and equal access to its store gift
cards, and therefore denial of its products and services offered
thereby and in conjunction with its physical locations, is a
violation of the Plaintiff's rights under the Americans with
Disabilities Act, says the complaint. Because the Defendant's store
gift cards are not equally accessible to blind and
visually-impaired consumers, it violates the ADA. The Plaintiff
seeks a permanent injunction to cause a change in the Defendant's
corporate policies, practices, and procedures so that the
Defendant's store gift cards will become and remain accessible to
blind and visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person, who
requires Braille, which is a tactile writing system, to read
written material, including books, signs, store gift cards, credit
cards, etc.
The Defendant operates Godiva retail stores, as well as stores for
various subsidiary companies and advertises markets, distributes,
and/or sells retail merchandise in New York and throughout the
world.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003-2461
Phone: (212) 228-9795
Fax: (212) 982-6284
GOLD CARD: Faison Sues Over Unsolicited Marketing Messages
----------------------------------------------------------
Shawndra Faison, individually and on behalf of all others similarly
situated v. GOLD CARD FINANCE CORPORATION d/b/a FAMILY AUTO MART, a
Florida corporation, Case No. 8:19-cv-02782-MSS-TGW (M.D. Fla.,
Nov. 8, 2019), is brought against the Defendant to secure redress
for violations of the Telephone Consumer Protection Act.
This case arises from the Defendant's transmission of prerecorded
messages to the cellular telephones of the Plaintiff and others. To
promote its services, the Defendant engages in unsolicited
marketing, harming thousands of consumers in the process. Through
this action, the Plaintiff seeks injunctive relief to halt the
Defendant's illegal conduct, which has resulted in the invasion of
privacy, harassment, aggravation, and disruption of the daily life
of thousands of individuals. The Plaintiff also seeks statutory
damages on behalf of herself and members of the class, and any
other available legal or equitable remedies.
The Plaintiff is a natural person who was a resident of
Hillsborough, Florida.
The Defendant is an automotive dealership that sells vehicles for
individuals and businesses.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Ave., Suite 1205
Miami, FL 33132
Phone (305) 479-2299
Email: ashamis@shamisgentile.com
gberg@shamisgentile.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Phone: (305) 975-3320
Email: scott@edelsberglaw.com
GRAND CANYON UNIV.: Teacher Diversity Program Halted Amid Lawsuit
-----------------------------------------------------------------
Sarah Schneider, writing for WESA, reports that the Pittsburgh
Public Schools district postponed a program that was intended to
train current employees of color to be teachers after rescinding
the collaboration with the university that was going to instruct
those educators.
In a statement Tuesday, Pittsburgh Public Schools Superintendent
Anthony Hamlet said the district will seek a local partner in lieu
of Grand Canyon University.
The private Christian school based in Phoenix, Arizona is being
sued by two former students for allegedly misrepresenting
accreditation of some of its programs and the validity of its
degrees across state lines, according to the Arizona Republic. A
separate class action lawsuit was filed in September in federal
court accusing the university of allegedly forcing students to pay
for extra classes in order to finish their degrees, according to
the Phoenix New Times.
Hamlet said Grand Canyon University did not disclose "existing
litigation and the University's relationship with for-profit
affiliates" when it agreed to partner with the district.
"Concerns raised by District Solicitor Ira Weiss and information
received after the October 1st presentation to the Board have
convinced me that postponing the start of our program is the most
prudent decision at this time," said Superintendent Hamlet in a
statement.
The district has been tasked with diversifying its teaching force
for decades. One way to do that is to promote current employees, so
leadership decided to help teacher's aides -- paraprofessionals --
go back to school for teaching certificates.
According to the district, 56 percent of the current
paraprofessionals who hold bachelor's degrees or higher are black,
while more than 80 percent of its teachers are white. Fifty-three
percent of Pittsburgh Public Schools students are black.
When surveyed, the district's paraprofessionals said the biggest
challenge in getting a master's degree or a teaching certificate is
cost of tuition and time to complete the coursework.
The district solicited proposals from all of the colleges and
universities with which it collaborates. Most are local and send
their student teachers to work in the city schools. The district
was looking for a college or a university that offered online
courses and a two-year master's program to educate and train up to
33 PPS paraprofessionals.
Only one school submitted a proposal: Grand Canyon University.
The school is based in Arizona, but has staff in Pennsylvania,
according to the district. It offered tuition discounts and met the
district's requirements. The Para2Teacher pilot program was
announced Oct. 2.
The first cohort was expected to begin online classes Oct. 24 while
continuing to work for the district. A portion of their salary
would have gone toward tuition; grants from the Pittsburgh
Federation of Teachers and the Heinz Endowments would have paid for
substitutes to cover classroom duties while the paraprofessionals
completed their student teaching.
Hamlet said the district is committed to pursuing the program
elsewhere and will work this year to develop an agreement with a
regional partner and expects to begin the first cohort next fall.
[GN]
HARGREAVES LANSDOWN: Class Action Lawyer Mulls Investor Lawsuit
---------------------------------------------------------------
Dylan Lobo, writing for Citywire.co.uk, reports that the pressure
on Hargreaves Lansdown (HL) is mounting as it emerged that its
multi-manager range suffered a GBP440 million outflow over the last
four months.
HL had invested in the suspended Woodford Equity Income fund (WEIF)
through its £8 billion multi-manager range.
According to Morningstar data cited in the Financial Times,
investors have withdrawn a net GBP213 million from Hargreaves'
£2.6 billion Income and Growth Trust since May. Outflows from
Income and Growth, which invested 11% of its assets in WEIF through
the period, peaked in June at around £5 million a day.
It is understood that outflows have accelerated since the closure
of Woodford Investment Management was announced.
While there have been some fears HL may itself need to suspend
trading in its funds if redemptions continue to escalate, the scale
of HL's multi-manager range means this scenario some way off.
The heavy losses for Woodford since the fund was suspended in June
have resulted in its position in the Income and Growth fund falling
from 12.8% to 11%.
Hargreaves said that redemptions from its multi-manager range had
been 'in line with normal trading' since the suspension of the
Woodford fund.
Legal action
Meanwhile, class-action lawyer Leigh Day is probing a potential
legal claim against HL after being approached by furious investors
who have lost money from investing in Woodford on the firm's
guidance.
Kam Vojdani, a lawyer at Leigh Day, said he was investigating
whether HL should have cut WEIF from its best buy list well before
its suspension in June.
HL added the fund to its Wealth 50 buy list in January, even though
it later admitted it had concerns over the fund's investments in
unquoted stocks dating back to 2017. [GN]
HARRAH'S CASINO: Faces BIPA Class Action in Illinois
----------------------------------------------------
John Ferak, writing for Patch, reports that a new Will County
lawsuit accuses Harrah's Casino in downtown Joliet of violating the
state's Biometric Information Privacy Act by possessing the facial
geometry scans and identifying information of its Joliet casino
customers "without creating and following a written policy, made
available to the public."
The lawsuit asks a Will County judge to award liquidated or actual
monetary damages, whichever is higher, to lawsuit co-plaintiffs
Leon Martin and Anthony Adams and members of the class action
lawsuit, "for each violation of the Biometric Information Privacy
Act."
The lawsuit was filed by attorney Douglas Werman of Werman Salas
P.C. in Chicago and New York attorneys Joseph A. Fitapelli and Dana
Cimera of Fitapelli & Schaffer. The same law firm has also filed a
near-identical lawsuit at the Will County Courthouse against
Joliet's other gambling casino, Hollywood Casino in Joliet.
Last year, Harrah's downtown Joliet casino had gross receipts of
nearly $178 million and admitted 1.29 million patrons, with an
average daily admission of 3,536 patrons, the lawsuit states.
"Defendants use facial recognition technology with their video
security cameras at their Illinois casinos," the suit explains.
"Defendants' facial recognition technology identifies a person by
scanning the geometry of a person's facial features and comparing
that scan against databases of stored facial geometry templates."
According to the lawsuit, the co-plaintiffs are residents of
Illinois and both members of the Caesars rewards program "who
gambled at defendants' Harrah's Joliet casino during the
limitations period.
"Adams has gambled at defendants' Harrah's Joliet casino hundreds
of times in the last five years," the suit states. "Adams has been
a member of the Caesars rewards program for approximately two to
three years."
As for Martin, he has gambled at the Joliet casino "more than a
dozen times within the last two years including most recently in
mid-to late September. Martin has been a member of the Caesars
rewards program since approximately 2017," according to the suit.
"Each time plaintiffs gambled at defendants' Harrah's Joliet
casino, defendants facial recognition technology scanned
plaintiffs' facial geometry and compared those scans against stored
facial geometry templates in defendants' databases."
Their lawsuit contends the Joliet Harrah's:
-- Failed to inform the plaintiffs and other Caesars rewards
program members in writing that it was collecting their biometric
identifiers or information, the purpose and length of term for such
collection, and failed to obtain their written consent before
defendants' collected their facial geometry scans.
-- Never established and followed a publicly available written
policy establishing a retention schedule and guidelines for
permanently destroying scans of plaintiffs' and other rewards
program members' facial geometry.
According to the lawsuit, one of Harrah's facial recognition
technology providers is Biometrica Systems and on Oct. 4, Bill
Doolin, a surveillance manager for the Joliet Harrah's, "praised
facial recognition technology installed at the casino as an
effective way to report and catch cheaters" in a company
testimonial posted on the website for Biometrica.
"As other properties which belong to that network catch somebody,
they send a report that goes to all of the other casinos in the
network," Doolin says in the video. "Within an hour or two of them
catching someone, maybe in Nevada or in Atlantic City, all of the
casinos in that network will have that information available to
them."
The plaintiff's lawyers stated that they seek to represent "all
individuals who are members of the Caesars rewards program who had
their facial geometry scans collected or possessed by one or more
the defendants in Illinois between October 15, 2014 and the
present."
"The Class includes hundreds and likely thousands of members," the
lawyers contend. "As a result, the Class is so numerous that
joining of all class members in one lawsuit is not practical ... a
class action is an appropriate method for the fair and efficient
adjudication of this lawsuit and distribution of the common fund to
which the Class is entitled."
The lawsuit names Des Plaines Development Limited Partnership,
Harrah's Illinois and Caesars Entertainment Corporation as
co-defendants.
"Unlike other companies in Illinois, defendants failed to take
notice and follow the requirements of the Biometric Information
Privacy Act, even though the law was enacted in 2008 and numerous
articles and court filings were published about the law's
requirement before defendants committed the violations alleged in
this complaint," the plaintiffs argue.
"As a result, defendants' violations of the Biometric Information
Privacy Act were reckless, or in the alternative, negligent."
The lawyers for Harrah's have yet to file any briefs responding to
the allegations put forth in the lawsuit. [GN]
HERBALIFE NUTRITION: Still Defends Rodgers Class Action
-------------------------------------------------------
Herbalife Nutrition Ltd. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the company
continues to defend a class action suit entitled, Rodgers, et al. v
Herbalife Ltd., et al.
On September 18, 2017, the Company and certain of its subsidiaries
and Members were named as defendants in a purported class action
lawsuit, titled Rodgers, et al. v Herbalife Ltd., et al. and filed
in the U.S. District Court for the Southern District of Florida,
which alleges violations of Florida's Deceptive and Unfair Trade
Practices statute and federal Racketeer Influenced and Corrupt
Organizations statutes, unjust enrichment, and negligent
misrepresentation.
On August 23, 2018, the Court issued an order transferring the
action to the U.S. District Court for the Central District of
California as to four of the putative class plaintiffs and ordering
the remaining four plaintiffs to arbitration, thereby terminating
the Company defendants from the Florida action. The plaintiffs seek
damages in an unspecified amount.
Herbalife said, "The Company believes the lawsuit is without merit
and will vigorously defend itself against the claims in the
lawsuit."
No further updates were provided in the Company's SEC report.
Herbalife Nutrition Ltd. develops and sells nutrition solutions in
North America, Mexico, South and Central America, Europe, the
Middle East, Africa, and the Asia Pacific. he company was formerly
known as Herbalife Ltd. and changed its name to Herbalife Nutrition
Ltd. in April 2018. Herbalife Nutrition Ltd. was founded in 1980
and is headquartered in Los Angeles, California.
HICKORY FOODS: Mag. Judge Recommends Approval of $16K Burkett Deal
------------------------------------------------------------------
In the case captioned RONALD BURKETT, Plaintiff, V. HICKORY FOODS,
INC., Defendant, Case No. 3:19-CV-563-J-34PDB, (M.D. Fla.),
Magistrate Judge PATRICIA D. BARKSDALE of the United States
District Court for the Middle District of Florida, Jacksonville
Division issued a Report and Recommendation (1) granting the
parties' motion, and approving the parties' settlement as a fair
and reasonable resolution of disputed issues; (2) dismissing the
case with prejudice; and (3) directing the Clerk of Court to close
the file.
This case under the Fair Labor Standards Act (FLSA) came before the
Court on the parties' joint motion under Lynn's Food Stores, Inc.
v. U.S. by & through U.S. Dep't of Labor, 679 F.2d 1350, 1354 (11th
Cir. 1982), for approval of a settlement agreement and dismissal of
the action with prejudice.
Ronald Burkett sued Hickory Foods, Inc., on behalf of himself and
others similarly situated. Hickory distributes meat wholesale to
grocery retailers. Hickory hired Burkett as a machine technician.
Burkett would weld, build, troubleshoot, and repair
meat-manufacturing equipment. Hickory failed to pay Burkett at one
and one-half times his regular rate of pay for any overtime hours
worked. He worked more than forty hours a week most weeks.
He brings one claim: a FLSA claim for failure to pay overtime
wages. He seeks certification of the action as a class action;
overtime wages; liquidated damages; pre- and post-judgment
interest; attorney's fees, costs, and expenses; and a declaration
stating that Burkett violated FLSA, failed to keep accurate time
records, has a legal duty to pay overtime wages, failed to prove a
good-faith defense, and that Burkett is entitled to damages and
attorney's fees.
Agreement
In exchange for $16,000 (the total to Burkett and his counsel),
Burkett agrees to release Hickory and Flanders from all actions
arising out of Burkett's claim for unpaid wages that arose or may
have arisen prior to the execution of this Agreement, specifically
agreeing to release them from claims under FLSA, common law, and
any other statute that could have been asserted here regarding
overtime compensation and the attorney's fees. The agreement
contains a provision regarding the payment amounts and timing; a
provision regarding filing the settlement motion; provisions that
any violations of the settlement agreement entitle the
non-violating party to injunctive relief, damages, and attorney's
fees and costs; another provision regarding the release of overtime
claims against Hickory and Flanders; a provision regarding taxes; a
provision stating that the agreement is not an admission of fault
by Hickory or Flanders; a provision that the parties have made no
other promises; a provision regarding enforceability of the terms;
a provision that this agreement constitutes the entire agreement; a
provision stating that Burkett is competent; a provision stating
that the agreement shall be interpreted under Florida law; and a
provision that the agreement shall survive despite any
unenforceable provision.
Authority
Passed in 1938, FLSA establishes minimum wages and maximum hours to
protect certain groups of the population from substandard wages and
excessive hours which endanger the national health and well-being
and the free flow of goods in interstate commerce.
Factors pertinent to fairness and reasonableness may include (1)
the existence of collusion behind the settlement (2) the
complexity, expense, and likely duration of the case (3) the stage
of the proceedings and the discovery completed (4) the probability
of the plaintiff's success on the merits (5) the range of possible
recovery and (6) the opinions of counsel.
Based on the parties' representations and a review of the
complaint, the answer and affirmative defenses, Burkett's answers
to the Court's interrogatories, Hickory's verified summary, the
motion to approve the settlement, and the settlement agreement,
Magistrate Judge BARKSDALE finds the agreement is a fair and
reasonable compromises of disputed issues.
The parties had an opportunity to consult with experienced counsel
and entered into the agreement knowingly and voluntarily. Burkett
claims unpaid overtime and liquidated damages, but Hickory contends
he would be entitled to no overtime or overtime calculated under a
fluctuating workweek method, for which he is being paid in full
here. While denying liability, Hickory and Flanders have agreed to
pay $5688.90 for wages and an equal amount in liquidated damages,
plus a separately negotiated amount for attorney's fees. There is
no stated or apparent collusion. Without a settlement, the parties
would have to continue discovery, possibly engage in motion
practice, and possibly proceed to trial, and Burkett would risk
receiving nothing. The parties and their counsel believe this is a
reasonable settlement.
The agreement contains no provisions commonly found objectionable,
such as a general-release provision, a confidentiality provision,
or a non-disparagement provision, and the motion does not ask the
Court to retain jurisdiction to enforce the agreement.
On attorney's fees and costs, given the parties' representation
they agreed on the attorney's fees separately from the amounts to
Burkett, the Court need not undertake a lodestar review. Moreover,
the fees and costs appear reasonable considering the time to
prepare and file a complaint, answer the Court's interrogatories,
review discovery, and engage in settlement efforts, rules
Magistrate Judge BARKSDALE.
A full-text copy of Magistrate Judge BARKSDALE's October 7, 2019
Report and Recommendation is available at
https://tinyurl.com/y6ebcfdu from Leagle.com.
Ronald Burkett, on behalf of himself and those similarly situated,
Plaintiff, represented by Andrew Ross Frisch -
afrisch@forthepeople.com - Morgan & Morgan, PA & Chanelle Ventura-
cventura@forthepeople.com - Morgan & Morgan, PA.
Hickory Foods, Inc., a Florida for Profit Corporation, Defendant,
represented by Joelle C. Sharman- Joelle.Sharman@lewisbrisbois.com
- Lewis, Brisbois, Bisgaard & Smith, LLP.
HIGH OCTANE: French Suit Seeks Overtime Pay for Salespersons
------------------------------------------------------------
NICHOLAS FRENCH, and MICHAEL LEBRUN, behalf of themselves and all
Others similarly situated, Plaintiffs v. HIGH OCTANE HARLEY
DAVIDSON, KHD INC. and PAUL VERACKA, Defendants, Case No. 19-3141
(Mass. Super., Oct. 25, 2019), seeks damages based on the
Defendants' failure to pay wages, including overtime compensation.
The Defendants' company-wide compensation structure for salespeople
was based on a 100% commission/draw model. Employees' pay each week
was based on a percentage of each sale made by the employee. To the
extent an employee's pay for any given week fell below a certain
threshold, the Defendants would advance the employee a "draw" on
future commissions.
The Plaintiffs worked more than 40 hours in at least one week
during the class. The Plaintiffs also worked on at least one Sunday
or covered holiday during the period. The Defendants did not pay
the Plaintiffs, or members of the Class, overtime pay, the lawsuit
says.
Nicholas French and Michael Lebrun worked as salespersons for the
Defendants.
The Defendants operate a motorcycle dealership located in North
Billerica, Massachusetts.[BN]
The Plaintiffs are represented by:
Josh Gardner, Esq.
Nicholas J. Rosenberg
GARDNER & ROSENBERG P.C.
One State Street, Fourth Floor
Boston, MA 02109
Telephone: 617-390-7570
E-mail: josh@gardnerrosenberg.com
HOMELAND SECURITY: Certification of CBP Detainees Class Sought
--------------------------------------------------------------
In the class action lawsuit styled as Cristian Doe, Diana Doe, the
Plaintiff-Petitioners, vs. KEVIN K. McALEENAN, Acting Secretary of
Homeland Security; KENNETH T. CUCCINELLI, Acting Director of U.S.
Citizenship and Immigration Services; MARK A. MORGAN, Acting
Commissioner of U.S. Customs and Border Protection; DOUGLAS
HARRISON, Chief Patrol Agent, U.S. Border Patrol San Diego Sector;
RYAN SCUDDER, Acting Chief Patrol Agent, U.S. Border Patrol El
Centro Sector; ROBERT HOOD, U.S. Customs and Border Protection
Officer in Charge, San Ysidro Port of Entry; SERGIO BELTRAN, U.S.
Customs and Border Protection Officer in Charge, Calexico Port of
Entry; WILLIAM BARR, Attorney General of the United States, the
PLAINTIFF- PETITIONERS, Case No. 19CV2119 DMS AGS (S.D. Cal.), the
Plaintiff-Petitioners ask the Court for an order granting
certification of the proposed class defined as:
"All individuals who are detained in CBP custody in California
awaiting or undergoing non-refoulement interviews pursuant to what
the government calls the "Migrant Protection Protocols" program and
who have retained lawyers."
The United States Department of Homeland Security is a cabinet
department of the U.S. federal government with responsibilities in
public security, roughly comparable to the interior or home
ministries of other countries.[CC]
Counsel for the Plaintiff-Petitioners are:
Monika Y. Langarica, Esq.
Jonathan Markovitz, Esq.
Bardis Vakili, Esq.
David Loy, Esq.
ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
Telephone: (619) 398-4493
E-mail: mlangarica@aclusandiego.org
jmarkovitz@aclusandiego.org
bvakili@aclusandiego.org
davidloy@aclusandiego.org
HP INC: Kiler Suit Transferred From E.D.N.Y. to N.D. California
---------------------------------------------------------------
In the class action lawsuit styled as Marion Kiler on behalf of
herself and all others similarly situated, Plaintiff v. HP Inc.,
Defendant, Case No. 1:19-cv-00917-DLI-SMG (Filed Feb. 15, 2019),
was transferred from the U.S. District Court for the Eastern
District of New York (Brooklyn) to the U.S. District Court for the
Northern District of California (San Francisco) on Oct. 24, 2019.
The Northern District of California Court Clerk assigned Case No.
3:19-cv-06987-SK to the proceeding. The case is assigned to the
Hon. Judge Sallie Kim.
The suit alleges violation of the American with Disabilities Act.
Hewlett-Packard Company or Hewlett-Packard was an American
multinational information technology company headquartered in Palo
Alto, California.[BN]
The Plaintiff is represented by:
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
E-mail: cklee@leelitigation.com
anne@leelitigation.com
The Defendant is represented by:
Michael Friel Fleming, Esq.
MORGAN, LEWIS & BOCKIUS, LLP
101 Park Avenue
New York, NY 10178
Telephone: (212) 309-6000
Facsimile: (212) 309-6001
E-mail: michael.fleming@morganlewis.com
HSBC BANK: Chambers Seeks Refund on Improper Charges and Fees
-------------------------------------------------------------
Patrice Chambers, on behalf of herself and all others similarly
situated v. HSBC BANK USA, N.A., Case No. 1:19-cv-10436 (S.D.N.Y.,
Nov. 8, 2019), seeks to end the Defendant's abusive and predatory
practices and to force it to refund all of the improper charges it
imposed on customers.
The Plaintiff assert claims for breach of contract, breach of the
covenant of good faith and fair dealing, violation of state
consumer protection law, and/or unjust enrichment.
The Defendant promises its customers that if their account balance
drops too low to cover a particular "item," such as a check,
withdrawal, or service charge, the Defendant will charge the
customer a single $35 insufficient funds fee per item. But as the
Plaintiff and consumers all over the country have discovered, the
Defendant doesn't abide by this promise. Instead, the Defendant
routinely charges its customers multiple non-sufficient funds (NSF)
fees for the same item, driving their account balances deeper into
negative territory. The Defendant's customers have been injured by
the Bank's improper practice to the tune of millions of dollars
bilked from their accounts in violation the Defendant's clear
contractual commitments, says the complaint.
Patrice Chambers is a resident of Patchogue, New York, and holds an
HSBC checking account.
HSBC Bank is engaged in the business of providing retail banking
services to consumers.[BN]
The Plaintiff is represented by:
John A. Kehoe, Esq.
KEHOE LAW FIRM, P.C.
41 Madison Avenue, 31st Floor
New York, NY 10010
Phone: (212) 804-7700
Email: jkehoe@kehoelawfirm.com
- and -
Eric H. Gibbs, Esq.
David M. Berger, Esq.
GIBBS LAW GROUP, LLP
501 14th Street, Suite 1110
Oakland, CA 94612
Phone: (510) 350-9700
Email: ehg@classlawgroup.com
dmb@classlawgroup.com
- and -
Jeffrey Kaliel, Esq.
Sophia Green Gold, Esq.
KALIEL PLLC
1875 Connecticut Avenue NW, 10th Floor
Washington, DC 20009
Phone: 202.250.4783
Email: jkaliel@kalielpllc.com
sgold@kalielpllc.com
ICONIX BRAND: January 23, 2020 Settlement Fairness Hearing Set
--------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP issued a statement regarding the
Iconix Brand Group Securities Litigation:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re ICONIX BRAND GROUP, INC., et al.
This Document Relates To:
ALL ACTIONS.
Civil Action No. 1:15-cv-04860-PGG
CLASS ACTION
SUMMARY NOTICE
TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR ACQUIRED SECURITIES
OF ICONIX BRAND GROUP, INC. ("ICONIX") DURING THE PERIOD FROM
FEBRUARY 22, 2012 TO NOVEMBER 5, 2015, INCLUSIVE
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Southern District of New York, that a
hearing will be held on January 23, 2020, at 11:00 a.m., before the
Honorable Paul G. Gardephe, United States District Judge, at the
United States District Court for the Southern District of New York,
Thurgood Marshall United States Courthouse, 40 Foley Square,
Courtroom 705, New York, NY 10007, for the purpose of determining:
(1) whether the proposed Settlement of certain claims in the
above-captioned Action, as set forth in the settlement agreement
reached between the parties, consisting of Six Million Dollars
($6,000,000.00) in cash, should be approved as fair, reasonable,
and adequate to the Members of the Class; (2) whether the release
by Class Members of the claims as set forth in the Stipulation of
Settlement and Release should be authorized; (3) whether the
proposed plan to distribute the settlement proceeds (the "Plan of
Allocation") is fair, reasonable, and adequate; (4) whether the
application by Lead Counsel for an award of attorneys' fees and
expenses and any award to Lead Plaintiffs pursuant to 15 U.S.C.
Sec.78u-4(a)(4) should be approved; and (5) whether the Judgment,
in the form attached to the settlement agreement, should be
entered.1
Please note that the date, time and location of the settlement
hearing are subject to change without further notice. If you plan
to attend the hearing, you should check the docket or contact Lead
Counsel (identified below) to be sure that no change to the date,
time or location of the hearing has been made.
IF YOU PURCHASED OR ACQUIRED ANY OF THE COMMON STOCK OF ICONIX
DURING THE PERIOD FROM FEBRUARY 22, 2012 TO NOVEMBER 5, 2015,
INCLUSIVE, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT OF THIS
LITIGATION.
If you have not received a detailed Notice of Pendency and Proposed
Settlement of Class Action ("Notice") and a copy of the Proof of
Claim and Release form ("Proof of Claim"), you may obtain copies by
writing to Iconix Securities Settlement, Claims Administrator, c/o
Gilardi & Co. LLC, P.O. Box 43305, Providence, RI 02940-3305, or on
the internet at www.IconixSecuritiesSettlement.com.
If you are a Class Member, in order to share in the distribution of
the Net Settlement Fund, you must submit a Proof of Claim by mail
(postmarked no later than January 6, 2020) or submitted
electronically (no later than January 6, 2020), establishing that
you are entitled to recovery. Unless the deadline is extended,
your failure to submit your Proof of Claim by the above deadline
will preclude you from receiving any payment from the Settlement.
If you are a Class Member and you desire to be excluded from the
Class, you must submit a request for exclusion such that it is
postmarked no later than December 30, 2019, in the manner and form
explained in the detailed Notice, referred to above. All Members
of the Class who do not timely and validly request exclusion from
the Class will be bound by any judgment entered in the Action
pursuant to the Stipulation of Settlement and Release.
Any objection to the Settlement, the Plan of Allocation, or the fee
and expense application must be mailed to each of the following
recipients, such that it is received no later than December 30,
2019:
CLERK OF THE COURT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DANIEL PATRICK MOYNIHAN UNITED STATES COURTHOUSE
500 Pearl Street
New York, NY 10007
Lead Counsel:
Mark Millkey
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Defendants' Counsel:
Scott D. Musoff
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Four Times Square
New York, NY 10036
PLEASE DO NOT CONTACT THE COURT, THE CLERK'S OFFICE OR DEFENDANTS
REGARDING THIS NOTICE. If you have any questions about the
Settlement, you may contact Lead Counsel at the address listed
above.
DATED: September 23, 2019
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
1 Please note that Defendant BDO USA, LLP ("BDO") is not a party to
the Settlement, and the Settlement therefore does not address,
curtail or otherwise resolve Lead Plaintiffs' claims against BDO,
which remain pending in the Action.
ILLINOIS: Class Action Seeks to Seal Marijuana Convictions
----------------------------------------------------------
Jack Karp, writing for Law360, reports that Lucas Loy was just 17
when he was arrested buying marijuana.
Loy, who grew up in a small town in Illinois, says he and his
friends would take turns buying pot, "and basically I just ended up
being the one that got caught."
Though he only spent about four months in jail for a Class 3
felony, which could have sent him to prison for as long as 10
years, he, like many with similar convictions, still finds himself
trapped behind a different set of bars.
Loy is among an estimated 800,000 residents in Illinois alone with
marijuana-related convictions on their records. Between 2001 and
2010, more than 8.2 million marijuana-related arrests were made
across the U.S., 88% of which were for simple possession, according
to the American Civil Liberties Union.
Those whose arrests led to convictions often find themselves barred
from certain jobs, housing, government benefits and even their
children's field trips.
Loy, now 29 and unemployed, is one of those people.
"I have lost so many jobs . . . because of my felony," he says.
While more states have moved to legalize pot, many of them have
failed to make provisions to help people who still carry
convictions for behavior that's now legal. However, an increasingly
loud chorus of activists, lawmakers and some prosecutors are
championing bills and even lawsuits to make sure some of those most
hurt by prohibition don't get left behind when it ends.
In some places, those efforts are making a difference. New York
state, for instance, said it will automatically expunge convictions
for possession of 25 grams or less of marijuana as part of a
decriminalization bill signed by the governor in July.
But opposition and inertia have stymied similar measures in a
number of other jurisdictions, with critics saying avenues for
expunging old convictions already exist and the new laws only serve
to let people off the hook for activity that was illegal at the
time.
Meanwhile, Loy and others with similar arrest records remain locked
in what advocates describe as a "paper prison."
"It's just unbelievable the kinds of things that people face even
decades later from insignificant convictions," says Emma Goodman, a
staff attorney in the special litigation unit of The Legal Aid
Society who works to get criminal records sealed.
A New Start
Since 2012, 11 states and the District of Columbia have legalized
the recreational use of cannabis, according to the Marijuana Policy
Project, while another 15 have decriminalized it, usually meaning
possession of small amounts is treated as a violation of the law
subject only to a fine rather than time in prison.
But while arrests have fallen in some places, that's little help to
the many people convicted of marijuana-related crimes in years
past.
Over the past four years, at least 15 states have enacted laws
providing for the expungement of those convictions, according to
the National Conference of State Legislatures.
Besides the expungement bill in New York, California is requiring
its attorney general to review the cases of hundreds of thousands
of people eligible to have convictions cleared as part of that
state's marijuana legalization.
In Washington state, people with marijuana-related misdemeanors can
go to court and apply to have those convictions vacated under a new
law that went into effect in July.
"We had issues where people who when they were teenagers were
caught smoking weed and now they have kids, and they're not allowed
to go on a field trip with their kids because they had a marijuana
conviction," says Democratic state Sen. Joe Nguyen, whose district
includes West Seattle and who sponsored that bill.
Washington was one of the first states to legalize recreational pot
in 2012, but the original initiative didn't provide relief for
people with old convictions, a move advocates hoped would keep law
enforcement organizations from opposing legalization, according to
Nguyen. Even though expungement bills have been introduced since,
Nguyen says no one has championed them until now.
There's "a very broad and strong sense in the public that these are
not the types of crimes that we need to punish people forever for,"
says Democratic Michigan state Sen. Jeff Irwin, who represents
Washtenaw County, including Ann Arbor, and has introduced a similar
bill in that state.
While Nguyen's bill requires people to apply to have their
convictions vacated, Irwin's bill would automatically set aside
convictions for cannabis use and possession. Voters in the Great
Lakes State approved marijuana's recreational use in November 2018,
but that ballot measure also did not include expungement provisions
because the Michigan Constitution prohibits petitions from having
more than one objective, according to Irwin.
Despite Democratic Gov. Gretchen Whitmer's promise to expunge
pot-related convictions after legalization, Michiganders are still
waiting.
Several bills, Irwin's among them, have been introduced but have
seen little movement. Irwin insists there's bipartisan support for
the effort, but admits there has been some struggle over details
like which offenses should be eligible and whether clearing
people's records should be automatic.
There's been similar wrangling in New Jersey, where Democratic Gov.
Phil Murphy in August conditionally vetoed expungement legislation,
saying the proposed law put too much of the burden on those seeking
expungement.
He sent the bill back to the Legislature with suggestions for
making expungement automatic, but in September, the state's Senate
failed to vote on the changes, instead introducing another version
of the legislation, which is stalled.
Despite the roadblocks his own bill has faced, Irwin is optimistic
about finishing the work of legalizing cannabis in Michigan.
"To me, that means making sure that we exonerate the many, many
people who've been hurt by the war on drugs," he says.
Unequal Enforcement
Nguyen and Irwin say inequities in how marijuana prohibition has
been enforced are a major reason they introduced their bills.
Between 2001 and 2010, African Americans were 3.73 times more
likely than whites to be arrested for marijuana possession
nationally despite using the drug at similar rates, according to a
2013 ACLU report.
In places like Monroe County, Michigan, just south of Irwin's own
district, that figure skyrockets to 15.4 times as likely.
"When you take that fact and you rinse and repeat year after year
after year, what we have done is we have really focused the pain of
the war on drugs and cannabis prohibition on communities of color,"
Irwin says.
Illinois is hoping to undo some of that damage after becoming the
first state to legalize recreational marijuana legislatively rather
than by public referendum in June. Between 2001 and 2010, African
Americans were 7.56 times more likely to be arrested for marijuana
possession than whites in the Prairie State, according to the ACLU
report.
As many as 770,000 records could be eligible for expungement under
the new law, which grants automatic clemency to anyone convicted of
possessing up to 30 grams of the drug, according to Democratic
state Sen. Heather Steans, whose district includes part of Chicago
and who is one of the bill's sponsors.
The law also contains several "social equity" provisions. People
with marijuana convictions or who come from neighborhoods with high
rates of arrest and incarceration related to cannabis will be given
"social equity status," a factor Steans says will account for 20%
of the criteria to get a license to sell recreational marijuana.
"Social equity" applicants who are approved for licenses will then
be able to access loans and grants from a cannabis development fund
to access training and technical assistance, offset fees, and get
their businesses up and running. Neighborhoods that qualify for
"social equity status" include parts of St. Louis, Springfield and
Bloomington, among other cities.
Irwin says he's already working on legislation to establish a
social equity fund in Michigan similar to the measure in Illinois.
Activists are increasingly pushing for legalization bills "to have
at least some racial justice lens and criminal justice lens" like
Illinois', says Charlotte Resing, a policy analyst in the ACLU's
National Political Advocacy Department.
Resing's office has been working, along with a constellation of
other groups, on advocating for the Marijuana Opportunity
Reinvestment and Expungement Act, introduced in Congress in July by
Sen. Kamala Harris, D-Calif., and Rep. Jerry Nadler, D-N.Y.
That bill would not only legalize marijuana nationally but require
federal courts to expunge convictions, ban the denial of federal
benefits due to a previous conviction, and make entry into the
cannabis industry easier for those most impacted by the war on
drugs.
"We wanted some reinvestment in these communities that have really
had their lives . . . turned upside-down by an arrest, by
overpolicing, by a conviction, by serving a sentence," Resing
says.
Of course, not everyone agrees with these efforts. Republican state
Rep. Brad Klippert, who represents Kennewick, Washington, opposed
that state's new expungement law. Klippert, who is also a sheriff's
deputy in the Benton County Sheriff's Office and works as a school
resource officer, says one of the reasons he voted against the bill
is the message he believes it sends to kids.
"It's a tragedy because now more and more kids think, 'Oh, it's no
big deal . . . so why shouldn't I partake in this dangerous drug,'"
he says.
Steven D. Strachan, executive director of the Washington
Association of Sheriffs & Police Chiefs, says his organization also
opposed Nguyen's expungement bill, in part, because there already
are ways to get misdemeanor convictions undone in Washington.
Unlike those avenues, the state's new law removes judges'
discretion to consider an applicant's specific circumstances, he
said.
His organization and other law enforcement groups also oppose
recent expungement efforts because the provisions are aimed at
helping people who broke the law.
"When people were arrested for marijuana, whether it was two years
ago, eight years ago, 12 years ago -- it was illegal. They were
arrested for an illegal offense," says Chief Steven Stelter,
president of the Illinois Association of Chiefs of Police, which
fought the expungement provisions in that state's marijuana
legalization bill. "Who are these legislators today so arrogantly
saying the lawmakers from yesterday were wrong?"
Tearing Up the 'Paper Prison'
For expungement advocates, changing the law is often not enough.
When California first legalized recreational pot in 2016, the
referendum included an expungement provision. But in early 2018,
when now-former San Francisco District Attorney George Gascón
asked how many of the more than 9,300 eligible people in the city
had used the provision to escape what he calls the "paper prison,"
the answer was 23, according to Alex Bastian, deputy chief of staff
in the San Francisco district attorney's office.
"The problem with the system in place is you would have to ... hire
an attorney and pay for an attorney; you would also have to take
time off from work and come in and do it yourself," Bastian says.
The San Francisco district attorney teamed up with technology
nonprofit Code for America to develop a system to automatically
expunge the marijuana convictions of those 9,300 people, a process
his office completed in February. In August, the district attorney
of Cook County, Illinois, announced she would be partnering with
Code for America to do the same.
Manhattan's district attorney, along with Goodman at the Legal Aid
Society, is taking a different tack.
Frustrated with what Goodman calls "the arduous process of
application-based sealing," they and a host of other organizations
filed what they consider a "groundbreaking" class action in New
York Supreme Court to get over 300 eligible marijuana convictions
in Manhattan sealed all at once.
Justice Carol Edmead ordered the convictions sealed in July, and
Goodman says her organization is looking at filing similar suits
elsewhere.
"I really see sealing people's records and helping them with moving
on with their lives as a way to counteract the systemic racism that
still exists even decades later," Goodman says.
For Loy, whose felony turned out to be ineligible for expungement
in Illinois because he was convicted of delivery rather than
possession, the path forward is less clear.
"It sucks. And it's embarrassing. You know how much I've had to
rely on my parents and my family throughout my life?" he says. "I
just want to go out on my own two feet and do what I want to do."
[GN]
iMOBILE LLC: Fails to Pay Store Managers' OT Wages, Fidelio Says
----------------------------------------------------------------
Nicole Fidelio, individually and on behalf of all others similarly
situated v. iMOBILE, LLC and iMOBILE USA, LCC, Case No.
7:19-cv-10417 (S.D.N.Y., Nov. 8, 2019), seeks all relief available
under the Fair Labor Standards Act of 1938 and the New York Labor
Law on behalf of all current and former overtime exempt-classified
Store Managers, who worked at any of the Defendants' locations.
According to the complaint, the Plaintiff worked in excess of 40
hours per workweek, without receiving overtime compensation as
required by the FLSA or NYLL. Pursuant to their policy and pattern
or practice, the Defendants did not pay the Plaintiff proper
overtime wages for hours worked for their benefit in excess of 40
hours in a workweek, says the complaint.
The Plaintiff was employed by the Defendants as s Store Manager
from March 2017 until November 2017.
The Defendants are an exclusive Sprint Authorized Retailer
socializing in wireless communication services.[BN]
The Plaintiff is represented by:
Michael Palitz, Esq.
SHAVITZ LAW GROUP, P.A
830 Third Avenue, 5th Floor
New York, NY 10022
Phone: (800) 616-4000
Facsimile: (561) 447-8831
- and -
Gregg I. Shavitz, Esq.
Camar R. Jones, Esq.
Alan L. Quiles, Esq.
SHAVITZ LAW GROUP, P.A.
951 Yamato Road, Suite 285
Boca Raton, FL 33432
Phone: (561) 447-8888
Facsimile: (561) 447-8831
IOWA BOARD OF REGENTS: Myers FLSA Class Suit Removed to S.D. Iowa
-----------------------------------------------------------------
Iowa Board of Regents removes the case captioned as MELINDA MYERS,
BARBARA STANERSON, and JOHN EIVINS, on Behalf of Themselves and
Others Similarly Situated, Plaintiff v. IOWA BOARD OF REGENTS,
Defendant, Case No. LACV081138 (Filed Aug. 19, 2019), from the Iowa
District Court in and for Johnson County to the U.S. District Court
for the Southern District of Iowa on Oct. 25, 2019.
The Southern District of Iowa Court Clerk assigned Case No.
3:19-cv-00081-SMR-SBJ to the proceeding.
On October 7, 2019, the Plaintiffs filed a Motion to Amend Class
Action Petition seeking leave of court to pursue additional claims,
including a claim made pursuant to the Fair Labor Standards Act.
On October 21, 2019, the Court granted the Plaintiffs' Motion to
Amend allowing them leave to file the Amended Class Action
Petition.
The Board of Regents, State of Iowa, is the 9-member governing body
overseeing the three public universities in the state of Iowa: the
University of Iowa, Iowa State University, and the University of
Northern Iowa.[BN]
The Plaintiffs are represented by:
Nathan Willems, Esq.
RUSH & NICHOLSON, P.L.C.
115 First Avenue SE, Suite 201
P.O. Box 637
Cedar Rapids, IA 52406-0637
E-mail: nate@rushnicholson.com
- and -
Harold Lichten, Esq.
Benjamin J. Weber, Esq.
LICHTEN @ LISS-RIORDAN, P.C.
729 Boylston St., Suite 2000
Boston, MA 02116
E-mail: hlichten@llrlaw.com
bjweber@llrlaw.com
The Defendant is represented by:
Andrew T. Tice, Esq.
AHLERS & COONEY, P.C.
100 Court Avenue, Suite 600
Des Moines, IA 50309
Telephone: (515) 243-7611
Facsimile: (515) 243-2149
E-mail: atice@ahlerslaw.com
JANUS HENDERSON: VelocityShares Class Suits Still Ongoing
---------------------------------------------------------
Janus Henderson Group plc said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the Company and/or
its subsidiaries continue to face several class action lawsuits
related to VelocityShares Daily Inverse VIX. The cases are
Eisenberg v. Credit Suisse AG and Janus Indices, Halbert v. Credit
Suisse AG and Janus Indices, Qiu v. Credit Suisse AG and Janus
Indices and Y-GAR Capital v. Credit Suisse AG and Janus Indices,
and Rubinstein v. Credit Suisse Group AG and Janus Indices.
On March 15, 2018, a class action lawsuit was filed in the United
States District Court for the Southern District of New York against
Janus Index & Calculation Services LLC, which effective January 1,
2019, was renamed Janus Henderson Indices LLC ("Janus Indices"), a
subsidiary of the Group, on behalf of a class consisting of
investors who purchased VelocityShares Daily Inverse VIX Short-Term
ETN (Ticker: XIV) between January 29, 2018, and February 5, 2018
(Eisenberg v. Credit Suisse AG and Janus Indices). Credit Suisse,
the issuer of the XIV notes, is also named as a defendant in the
lawsuit.
The plaintiffs generally allege statements by Credit Suisse and
Janus Indices, including those in the registration statement, were
materially false and misleading based on its discussion of how the
intraday indicative value ("IIV") is calculated and that the IIV
was not an accurate gauge of the economic value of the notes.
On April 17, 2018, a second lawsuit was filed against Janus Indices
and Credit Suisse in the United States District Court of the
Northern District of Alabama by certain investors in XIV (Halbert
v. Credit Suisse AG and Janus Indices).
On May 4, 2018, a third lawsuit, styled as a class action on behalf
of investors who purchased XIV between January 29, 2018, and
February 5, 2018, was filed against Janus Indices and Credit Suisse
AG in the SDNY (Qiu v. Credit Suisse AG and Janus Indices). The
Halbert and Qiu allegations generally copy the allegations in the
Eisenberg case.
On August 20, 2018, an amended complaint was filed in the Eisenberg
and Qiu cases (which have been consolidated in the SDNY under the
name Set Capital LLC, et al. v. Credit Suisse AG, et al.), adding
Janus Distributors LLC, doing business as Janus Henderson
Distributors, and Janus Henderson Group plc as parties, and adding
allegations of market manipulation by all of the defendants.
The Janus Henderson and Credit Suisse defendants moved to dismiss
the Set Capital amended complaint, and on September 25, 2019, the
court dismissed all claims against all defendants. The court denied
the plaintiffs' request for an opportunity to further amend their
complaint, and therefore dismissed the case in its entirety.
Plaintiffs have filed a notice of appeal.
The defendants in Halbert – Credit Suisse and Janus Indices –
jointly moved to dismiss the amended complaint. On August 22, 2019,
the court granted in part and denied in part the defendants' motion
to dismiss the claims. The court dismissed all claims against Janus
Indices – including all federal securities claims – other than
a claim for negligent misrepresentation. On September 26, 2019,
Janus Indices filed its answer to the complaint.
On February 7, 2019, a fourth lawsuit was filed against Janus
Indices, Janus Distributors LLC, Janus Henderson Group plc, and
Credit Suisse in the United States District Court for the Eastern
District of New York by certain investors in XIV (Y-GAR Capital LLC
v. Credit Suisse Group AG, et al.). The allegations in Y-GAR
generally assert that the disclosures relating to XIV were false
and misleading. On March 29, 2019, the plaintiff withdrew the suit
from the EDNY and re-filed it in the SDNY. The Janus Henderson and
Credit Suisse defendants each moved to dismiss the claims against
them. Both motions remain pending before the court.
On February 4, 2019, a fifth lawsuit was filed against Janus
Indices, Janus Distributors LLC, Janus Henderson Group plc and
various Credit Suisse persons in the SDNY (Rubinstein v. Credit
Suisse Group AG, et al.). The suit is styled as a class action and
involves VelocityShares Daily Inverse VIX Medium-Term ETN (Ticker:
ZIV), but otherwise generally copies the allegations in the XIV
cases described above. On August 20, 2019, an amended complaint was
filed, which eliminated each of the Janus Henderson entities as
defendants, thus dismissing all claims against them.
Janus Henderson said, "The Group believes the remaining claims in
these exchange-traded note lawsuits are without merit and is
strongly defending the actions. As of September 30, 2019, the Group
cannot reasonably estimate possible losses from the remaining
claims in the exchange-traded note lawsuits."
Janus Henderson Group plc is an asset management holding entity.
Through its subsidiaries, the firm provides services to
institutional, retail clients, and high net worth clients. It
manages separate client-focused equity and fixed income portfolios.
The firm also manages equity, fixed income, and balanced mutual
funds for its clients. It invests in public equity and fixed income
markets, as well as invests in real estate and private equity.
Janus Henderson Group plc was founded in 1934 and is based in
London, United Kingdom with additional offices in Jersey, United
Kingdom and Sydney, Australia.
JEFFERSON B. SESSIONS: Court Partly Granted Class Certification
---------------------------------------------------------------
In the class action lawsuit styled as Ms. J.P. et. al, the
Plaintiffs, v. Jefferson B. Sessions, et al, the Defendants, Case
No. 2:18-cv-06081-JAK-SK (C.D. Cal.), the Hon. Judge John A.
Kronstadt entered an order:
1. granting in part Plaintiffs' motion for class certification
of:
"all adult parents nationwide who (1) were, are or will be
detained in immigration custody by the Department of
Homeland Security (DHS), and (2) have a minor child who has
been, is or will be separated from the them by DHS and
detained in DHS or Office of Refugee Resettlement (ORR)
custody or foster care, absent a demonstration in a hearing
that the parents in unfit or presents a danger to the
child";
2. partly granting preliminary injunction; and
3. denying Defendants' motion to dismiss.
The Court said, "Defendants contend that the proposed class is
overboard because it would include individuals who were not harmed
by the Defendants' allegedly inadequate policies. The Plaintiffs
respond that the proposed class is appropriate because each member
has been, is being or will be exposed to the family separation
policy. Accordingly even if Defendants had submitted whether an
individual is or has been in ORR or DHS custody, this would not bar
certification."[CC]
JP MORGAN CHASE: Kawelo Files Suit in Hawaii
--------------------------------------------
A class action lawsuit has been filed against JP Morgan Chase Bank
et al. The case is styled as David Lukela Kawelo, Sr., Rochelle
Nohea Kawelo individually, on behalf of themselves and all others
similarly situated, Plaintiff v. JP Morgan Chase Bank, National
Association, Chase Home Finance, MERS (Mortgage Electronics
Registration Systems), Zachary K. Kondo Individually, Alridge Pite,
LLP, Corporately, Cui Mei Ho, Entity Unknown Claiming and legal or
equitable right, title, estate, lien, or interst in the property
described in the complaint adverse to plaintiffs; title, or any
cloud on plaintiffs' title thereto and all whose true names are
unknown, Does 1 - 50, Inclusive, Defendants, Case No.
1:19-cv-00598-DKW-WRP (D. Haw., Nov. 1, 2019).
The nature of suit is stated as Foreclosure Real Property.
JPMorgan Chase & Co. is an American multinational investment bank
and financial services holding company headquartered in New York
City.[BN]
The Plaintiffs appear pro se:
David Lukela Kawelo, Sr.
Rochelle Nohea Kawelo
86-906 Ihuku Street
Waianae, HI 96792
PRO SE
KANSAS CITY TREE: Prince FLSA Class Suit Transferred to D. Kansas
-----------------------------------------------------------------
In the class action lawsuit styled as WILLIAM PRINCE, Individually
and for Others Similarly Situated, Plaintiff v. KANSAS CITY TREE
CARE, LLC, Defendant, Case No. 4:19-cv-00622 (Filed Aug. 7, 2019),
was transferred from the U.S. District Court for Western District
of Missouri to the U.S. District Court for the District of Kansas
(Kansas City) on Oct. 24, 2019.
The District of Kansas Court Clerk assigned Case No.
2:19-cv-02653-KHV-JPO. The case is assigned to the Hon. District
Judge Kathryn H. Vratil.
The suit alleges violation of the Fair Labor Standards Act. Mr.
Prince brings the FLSA lawsuit to recover unpaid overtime wages and
other damages owed to him by KC Tree.
KC Tree is a tree and emergency disaster support company that
employs laborers like Prince to carry out its work.
Prince and the other laborers regularly work more than 40 hours in
a week. But KC Tree does not pay them overtime for hours worked in
excess of 40 in a week. Instead of paying overtime, KC Tree paid
Prince a daily rate with no overtime compensation, the lawsuit
says.[BN]
The Plaintiff is represented by:
William Prince, Esq.
Eric L. Dirks, Esq.
WILLIAMS DIRKS DAMERON, LLC
1100 Main Street, Suite 2600
Kansas City, MO 64105
Telephone: (816) 945-7165
Facsimile: (816) 945-7118
E-mail: dirks@williamsdirks.com
KIMGANAE INC: Hwangbo Seeks to Recover Minimum and Overtime Wages
-----------------------------------------------------------------
Hyunwoo Hwangbo, Jae Young Cheon, and Jaehoon Cho, on behalf of
themselves and others similarly situated v. KIMGANAE, INC. d/b/a
KIMGANAE, JOON HO KIM, HYANG KYUM KIM, and JOHN DOE, Case No.
1:19-cv-06356 (E.D.N.Y., Nov. 8, 2019), seeks to recover from the
Defendants unpaid minimum wages, overtime compensation, confiscated
tips, spread-of-hours pay, unlawful deductions and statutory
penalties under the Fair Labor Standards Act of 1938 and the New
York Labor Law.
The Defendants have never paid the Plaintiffs an overtime rate of
1.5 times their regular hourly rate for hours they worked after
having already worked 40 hours per week, as the Defendants were
required to do under the FLSA and the NYLL, says the complaint.
The Plaintiffs were employed by the Defendants at the Defendants'
restaurant.
The Defendants operates a Korean restaurant located in Flushing,
New York.[BN]
The Plaintiffs are represented by:
Brian L. Greben, Esq.
LAW OF OFFICES OF BRIAN L. GREBEN
316 Great Neck Road
Great Neck, NY 11021
Phone: (516) 304-5357
KNOX COUNTY, TN: Has Until Dec. 19 to Respond to Pension Suit
-------------------------------------------------------------
Mike Steely, writing for The Knoxville Focus, reports that
Knoxville attorney John P. Valliant has apparently been hired by
Mayor Glenn Jacobs to represent the county in the class action suit
against the county in the Retirement and Pension Board case. The
suit was filed on September 10 and the county given 30 days to
answer. Valliant filed a motion on October 10 to extend the time to
answer the suit. A November 21 date was set on the Chancery Court
docket but was then changed to 9 a.m. on December 19.
Knox County Commission Chairman Hugh Nystrom said he was notified
about the hiring of Valliant and the county mayor's office
confirmed the hiring Friday afternoon.
The court docket also indicates that a separate motion, filed by
John Owings, has been received asking that he be approved to enter
the lawsuit on behalf of the Knox County Retirement and Pension
Board. That decision to authorize him to represent them came after
a closed-door executive meeting of the Pension Board that Owings,
the board attorney, offered and received permission, after the
private session.
The pension board, however, is not a party in the suit.
The class action suit, Christ Etters et al. vs. Knox County, is
asking if the commission and mayor have the powers to grant
additional retirement pay beyond what the Knox County Charter
permits. Commissioner Richie Beeler has a discussion item on
Monday's commission agenda to direct the outside hired attorney to
seek the "sole legal issue" and not spend taxpayer money in an
attempt to dismiss the case prior to a court ruling. [GN]
LABCORP: Continues to Defend Billing, Data Breach Class Actions
---------------------------------------------------------------
Isaac Groves, writing for Times-News, reports that when LabCorp
Chief Executive Officer Dave King steps down, he will leave behind
an $11 billion company with more than 60,000 employees in more than
100 countries, with its headquarters in downtown Burlington a mile
or two from where it started.
"It's a humbling experience to sit here 50 years after the
company's founding," King said.
King, 63, and the Board of Directors hand-picked his successor,
former Merck executive Adam Schechter. He will become the company's
fourth CEO in November -- it has had more name changes than leaders
-- and King will stay on in his role as chair of LabCorp's Board of
Directors, where he won't have much to do with day-to-day
operations, but can still offer advice and lobby for the company's
interests.
"We don't have any firm time understanding, but I would certainly
expect it would to be no longer than a year," King told the
Times-News.
Leadership has been stable, but the company has been through a lot
-- acquisitions, litigation, innovation, and maybe most of all
growth. Since King became CEO in 2007, the company has gone to No.
278 on the Forbes 500. In 1995, the company had gotten onto the
list of 600 biggest companies and grown close to a $1.8 billion
business with 20,000 employees.
"We thought that was a massive company, and it was," said Dr. Jim
Powell, LabCorp founder and first CEO.
Ambitious beginnings
Powell and his brothers, Dr. Thomas Powell III and John Powell,
founded Biomedical Laboratories in the old Alamance General
Hospital building. Their father, Tom Powell Jr., founded Carolina
Biological Supply, so they had his help with funding and
relationships with local banks, and a spot in the middle of the
state with access to a growing region.
"We were more interested in business than medicine," Powell said.
In the mid-1960s, Powell was a medical student at Duke University,
and lab testing was done in California, so results took about two
weeks.
"By that time, the patient had been discharged or passed on,"
Powell said. "It was not a good arrangement, so we wanted to do
that locally."
From the start, the company has focused heavily on cutting-edge
technology. In the late 1960s, Powell said, that was newly
available machines that performed 12 blood tests, like glucose and
cholesterol, fast enough that results were available overnight or
faster, and teletype machines made it possible to get those results
to doctors right away.
"It was 50 years ago, but 50 years ago it was revolutionary,"
Powell said.
Laboratory testing has gotten better in the past 50 years -- by an
incredible factor -- and now drives medical treatment in many ways,
LabCorp has been in the thick of it.
As the company's 50th anniversary arrives, Powell said, he toured
the facilities for the first time in years.
"Everything is totally automated," he said.
Mergers and acquisitions
Another pillar of LabCorp from the beginning was acquisitions.
Expanding into new territory, starting operations in the cities of
neighboring states, what Powell called growing "concentrically,"
was "an easy way to grow." The company also bought labs as it grew
and eliminated overlapping operations, and was acquired itself.
In 1995, the company then called Roche Biomedical Laboratories
merged with National Health Laboratories and became LabCorp. It's
also when King first worked with the company.
Cost of doing business
King is a lawyer by training and first came to LabCorp in 1995 as
an outside counsel when the company, like other commercial labs
around the country, was under federal investigation for conducting
and billing for unnecessary tests. LabCorp ended up settling for
more than $180 million, but said its billing practices broke no
laws.
While King might not have met LabCorp at the best moment, it still
made a good impression on King, and it seemed like a good place to
settle down.
"I liked the people here and the mission," King said. "It's an
inspiring mission, to improve the health and lives of patients. I
had a young family, and I was doing a lot of traveling as a lawyer
in private practice, and it seemed like a great opportunity."
LabCorp still spends its share of time in court, currently facing
class action suits on billing and for a data breach at the company
it used to collect unpaid bills that exposed customer data, which
King said is just part of a major company doing business today.
"Let's say we live in a very litigious society, so I don't think
this is any more or less of a litigious time," King said. "We
probably actually have fewer suits than we used to because the
quality of the underlying technology has improved. . . . There are
a vanishingly few number of errors today."
Locally, LabCorp is a massive presence. It's the largest private
employer in Alamance County and shows up in all the right places.
"I think we've been a great corporate citizen for Alamance County
and across the state," King said. "I don't think you could find a
better corporate citizen around."
The company has 8,000 employees in North Carolina, it started what
King called the "mill to bill" program to train former textile
workers for the company's billing department, supports causes like
the Alzheimer's walk, does a lot for both Alamance Community
College and Elon University, makes contributions to the
Alamance-Burlington School System and the list goes on.
Politics and healthcare
Going forward, LabCorp has to deal with the politics around
healthcare. The Protecting Access to Medicare Act, King said, and
other reforms have been a mixed bag, increasing the number of
people with coverage, but cutting payments.
"There are many, many flavors of healthcare proposals in the
marketplace right now, and some of them are financially
impractical, and some, I don't think, are very good for patients,"
King said.
Staying local
While he will have less to do with it going forward, King said, he
thinks LabCorp will be in Burlington for a long time.
"It would be hard to imagine us leaving here," King said. [GN]
LAUGH FACTORY: Haines Seeks Unpaid Wages for Cashiers
-----------------------------------------------------
KATARINA HAINES, as an individual and on behalf of all others
similarly situated, the Plaintiff, vs. LAUGH FACTORY, INC., a
California corporation; and DOES 1 through 100, inclusive, the
Defendants, Case No. 19STCV37453 (Cal. Super., Oct. 21, 2019),
seeks to recover civil penalties under the California Labor Code
Private Attorneys General Act of 2004.
The Plaintiff was employed by the Defendants as a non-exempt
employee in California from March 2019 to June 2019. She worked as
a cashier in a booth at Defendant's Hollywood location.
Throughout Plaintiff's employment, the Plaintiff was not provided
all required meal and rest periods due. The Defendants failed to
compensate the Plaintiff with the required meal and rest periods
premium, the lawsuit says.
The Defendants also failed to timely pay the Plaintiff all wages
owed upon her separation of employment with Defendant.
Laugh Factory is a chain of comedy clubs in the United States.[BN]
Attorneys for the Plaintiff are:
Scott M. Lidman, Esq.
Elizabeth Nguyen, Esq.
Milan Moore, Esq.
LIDMAN LAW, APC
222 N. Sepulveda Blvd., Suite 1550
El Segudo, CA 90245
Telephone: (424) 322 4772
Facsimile: (424) 322 4775
E-mail: slidman@lidmanlaw.com
enguyen@lidmanlaw.com
mmoore@lidmanlaw.com
LE MAGASIN DE L'ENCRE: Advanced Sues Over Unsolicited Fax Ads
-------------------------------------------------------------
ADVANCED DERMATOLOGY On behalf of itself and all those similarly
situated, Plaintiff v. LE MAGASIN DE L'ENCRE dba THE TONER DOCTOR,
Defendant, Case No. 1:19-cv-02503 (N.D. Ohio, Oct. 25, 2019),
alleges that the Defendant promotes and markets its merchandise, in
part, by sending unsolicited facsimiles in violation of the
Telephone Consumer Protection Act.
On October 24, 2018, the Plaintiff received a facsimile on its fax
machine from the Defendant. The form one-page facsimile, stated it
was from, "The Toner Doctor" and touted its purpose of "supplying
medical and professional offices in the USA."
The Plaintiff was damaged by these calls by suffering a monetary
loss due to the calls, incurring the costs of the use of facsimile
paper, ink and toner, loss of employee time to review the
facsimile, invasion of privacy, nuisance, interruption of its work
day, trespass to its chattel by interfering with its office
facsimile used to aid patients, stress, aggravation, and because a
violation of the TCPA itself is a concrete injury, the lawsuit
says.
The Plaintiff is a resident of Ohio, who received an unsolicited
facsimile from the Defendant on its office fax machine without
consent.
The Defendant sells ink and toner cartridges to medical offices,
businesses, schools and individuals, through seven different
distribution points within the United States.[BN]
The Plaintiff is represented by:
Ronald I. Frederick, Esq.
Michael L. Berler, Esq.
Michael L. Fine, Esq.
FREDERICK & BERLER, LLC
767 East 185th Street
Cleveland, OH 44119
Telephone: (216) 502-1055
Facsimile: (216) 566-0750
E-mail: ronf@clevelandconsumerlaw.com
mikeb@clevelandconsumerlaw.com
michaelf@clevelandconsumerlaw.com
LEIDOS HOLDINGS: Settlement in NY Suit Has Initial Approval
-----------------------------------------------------------
said in its Form 10-Q Report filed with the Securities and Exchange
Commission on October 29, 2019, for the quarterly period ended
September 27, 2019, that the court has preliminarily approved the
settlement in the class action suit entitled, In Re: SAIC, Inc.
Securities Litigation.
Between February and April 2012, alleged stockholders filed three
putative securities class actions against the Company and several
former executives relating to the Company's contract to develop and
implement an automated time and attendance and workforce management
system for certain agencies of the City of New York ("CityTime").
One case was withdrawn and two cases were consolidated in the U.S.
District Court for the Southern District of New York in In Re:
SAIC, Inc. Securities Litigation. The consolidated securities
complaint asserted claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 based on allegations that the
Company and individual defendants made misleading statements or
omissions about the Company's revenues, operating income and
internal controls in connection with disclosures relating to the
CityTime project.
The plaintiffs sought to recover from the Company and the
individual defendants an unspecified amount of damages class
members allegedly incurred by buying Leidos' stock at an inflated
price.
The District Court dismissed the plaintiffs' claims with prejudice
and without leave to replead. The plaintiffs then appealed to the
United States Court of Appeals for the Second Circuit, which issued
an opinion affirming in part, and vacating in part, the District
Court's ruling.
The Company filed a petition for a writ of certiorari in the U.S.
Supreme Court, which was granted on March 27, 2017. The District
Court granted the Company's request to stay all proceedings,
including discovery, pending the outcome at the Supreme Court. In
September 2017, the parties engaged in mediation resulting in an
agreement to settle all remaining claims for an immaterial amount
to be paid by the Company.
On October 2, 2019, the court issued an order preliminarily
approving the settlement. The amounts payable by the Company are
covered by an insurance policy.
Leidos Holdings, Inc. provides services and solutions in the
defense, intelligence, civil, and health markets in the United
States and internationally. It operates through three segments:
Defense Solutions, Civil, and Health. The company was founded in
1969 and is headquartered in Reston, Virginia.
LIBERTY MUTUAL: Faces Policyholders' Class Action
-------------------------------------------------
William Rabb, writing for Workcompcentral, reports that a federal
lawsuit charges that Liberty Mutual Insurance Co., with a little
help from the National Council on Compensation Insurance, withheld
information about subrogation and other savings that could have
lowered premiums for thousands of employers across the country. And
when the NCCI notified Liberty Mutual and its sister companies of a
change in experience modifications and cost reductions, the
insurers failed to issue refunds to employers, reads the lawsuit,
which proposes to become a class action for policyholders in 35
NCCI states, including Florida, Illinois and Texas. [GN]
LIFE FOR RELIEF: Kempton TCPA Suit Moved to Michigan District Court
-------------------------------------------------------------------
In the case, Ty Kempton, Plaintiff, v. Life for Relief and
Development Incorporated, Defendant, Case No. CV-19-02156-PHX-DJH
(D. Ariz.), Judge Diane J. Humetewa of the U.S. District Court for
the District of Arizona granted in part and denied in part the
Defendant's Motion to Dismiss, Transfer, or Stay.
From late 2017 to August 2019, Plaintiff Ty Kempton allegedly
received eight unsolicited text messages from Defendant Life for
Relief. For example, the Plaintiff alleges that on June 16, 2018,
he received an unsolicited text message from Life for Relief
stating, "Eid Mubarak to you and your family from Life for Relief
and Development. Please visit us at lifeusa.org.
http://www.lifeusa.org/worldcupReply stop to stop."
Kempton claims that these eight text messages violated the
Telephone Consumer Protection Act's ("TCPA") restriction against
using an automatic telephone dialing system ("ATDS") to send text
messages to cellular telephone numbers without the cellular
telephone subscribers' consent. The Plaintiff claims the texts
harmed him by disturbing his use and enjoyment of his phone, in
addition to the wear and tear on the phones' hardware (including
the phones' battery) and the consumption of memory on the phone.
Kempton initially filed the suit in U.S. District Court for the
Eastern District of Michigan on Oct. 31, 2018. Plaintiff then
filed an Amended Complaint in the Michigan Case on Feb. 1, 2019.
Life for Relief subsequently filed a Motion to Dismiss, arguing
that the Plaintiff failed to plead facts to state a claim for
relief because, in the Eastern District of Michigan, a plaintiff
must provide evidence of something more than just the use of an
automated testing system to prove that the defendant used an ATDS
in violation of the TCPA. Instead of responding to Life for
Relief's Motion to Dismiss, the Plaintiff voluntarily dismissed his
case on March 14, 2019.
On April 2, 2019, the Plaintiff filed his Complaint in the Arizona
District Court, which substantively is almost identical to his
Amended Complaint in the Michigan Case. As with the Michigan Case,
the Arizona action is a putative class action that stems from Life
for Relief's alleged violations of the TCPA. On July 1, 2019, Life
for Relief filed the pending Motion to Dismiss, Transfer, or Stay.
The Plaintiff filed a Response, and Life for Relief filed a Reply.
Having considered the relevant factors, Judge Humetewa finds Life
for Relief has made the "strong showing" required for transfer
under Section 1404(a). Transferring the action to the Eastern
District of Michigan likely moots Life for Relief's request to
dismiss for lack of personal jurisdiction, the Judge states.
However, the Judge will not address the merits of Life for Relief's
request to stay the action and will instead leave that to the
discretion of the Eastern District of Michigan.
Accordingly, Judge Humetewa grants in part and denies in part the
Defendant's Motion to Dismiss, Transfer, or Stay. The Judge
granted the Defendant's request to transfer the action to the
Eastern District of Michigan; declined to rule on the merits of the
Defendant's request to stay the action; and denied the Defendant's
request to dismiss as moot. The Judge directed the Clerk of Court
to take all necessary steps to ensure the prompt transfer of the
action to the U.S. District Court for the Eastern District of
Michigan.
A full-text copy of the Arizona Court's Oct. 15, 2019 Order is
available at https://is.gd/DMTntJ from Leagle.com.
Ty Kempton, and on behalf of all others similarly situated,
Plaintiff, represented by Avi Robert Kaufman --
kaufman@kaufmanpa.com -- Kaufman PA & Stefan Coleman --
law@StefanColeman.com -- Law Offices of Stefan Coleman, P.A.
Life for Relief and Development, a California corporation,
Defendant, represented by Jacob D. Koering --
koering@millercanfield.com -- Miller, Canfield, Paddock and Stone,
P.L.C. & Matthew P. Allen -- allen@millercanfield.com -- Miller,
Canfield, Paddock and Stone, PLC.
LOESTRIN 24: Court Explains Certification of Antitrust Suit
-----------------------------------------------------------
Chief District Judge William E. Smith of the U.S. District Court
for the District of Rhode Island issued a Memorandum explaining its
ruling on Plaintiff EPP Class' Motion for Class Certification in IN
RE LOESTRIN 24 FE ANTITRUST LITIGATION, Document Relates to: ALL
END-PAYOR CLASS ACTIONS, Master File No. 1:13-md-2472-WES-PAS. (D.
R.I.).
In the putative class action, the End-Payor Plaintiffs (EPPs)
allege that Defendants Warner Chilcott (US), LLC, Warner Chilcott
Sales (US), LLC, Warner Chilcott Company, LLC, Warner Chilcott plc,
and Warner Chilcott Limited and Defendants Watson Pharmaceuticals,
Inc. and Watson Laboratories, Inc., violated state and federal law
through a series of actions intended to delay and suppress generic
competition for the oral contraceptive Loestrin 24 Fe (Loestrin
24).
The EPPs moved for class certification on the case. In order to
allow sufficient time for notice to the class prior to trial, which
is slated to commence on January 6, 2020, the District Court -
having found the prerequisites of Rule 23 fully satisfied - issued
an Order dated September 17, 2019, granting in part and denying in
part the EPPs' Motion for Class Certification, promising an opinion
explaining the Order. Accordingly, the District Court issued a
Memorandum dated October 17, 2019, to serve that purpose, a copy of
which is available for free at https://tinyurl.com/y5ypdh7h at
Leagle.com
The EPPs are health and welfare benefit plans, health and welfare
benefit funds, and employee benefit welfare funds (collectively,
the "Third-Party Payors" or the "TPPs") and consumers who
purchased, paid for, and/or provided reimbursement for Loestrin 24
and Minastrin 24 and/or their AB-rated generic equivalents.
The EPPs propose the following amended class definition:
All persons or entities in the United States and its territories
who indirectly purchased, paid and/or provided reimbursement for
some or all of the purchase price for Loestrin 24 Fe and/or its
AB-rated generic equivalents in any form, and/or Minastrin 24 Fe
and/or its AB-rated generic equivalents in any form, for
consumption by themselves, their families, or their members,
employees, insureds, participants, or beneficiaries (the Class
or the End-Payor Class), other than for resale, during the
period September 1, 2009 through and until the anticompetitive
effects of Defendants' unlawful conduct cease (the Class
Period). For purposes of the Class definition, persons or
entities purchased Loestrin 24 Fe, Minastrin 24 Fe, or their
generic equivalents if they indirectly purchased, paid and/or
reimbursed for some or all of the purchase price (the
End-Payor Class).
To certify a class, the Court must undertake a rigorous analysis to
determine whether the putative class satisfies each of the four
prerequisites set forth in Rule 23(a) of the Federal Rules of Civil
Procedure: numerosity, commonality, typicality, and adequacy of
representation.
Among other things, the District Court opines that (1) the TPP
class is too numerous to render joinder practical, and thus
numerosity is established; (2) the EPPs easily establish that the
anticompetitive conduct they allege involves numerous common
questions of law and fact, and Rule 23(a)(2) is readily satisfied;
(3) the named plaintiffs are typical of those in jurisdictions in
which this class may be certified, and thus the typicality
requirement is satisfied; (4) the adequacy requirement is
satisfied.
In addition to explaining the reasoning underlying the Order on the
EPPs' Motion for Class Certification, the District Court entered
these rulings in its Oct. 17 Memorandum:
1. Defendants' Renewed Motion to Dismiss and Motion for Judgment
on the Pleadings as to Claims in EPPs' Second Amended
Consolidated Class Action Complaint is GRANTED IN PART and
DENIED IN PART;
2. Defendants' Motion to Exclude the Opinion and Testimony of
EPPs' Expert Gary L. French, Ph.D., ECF No. 575, is DENIED;
3. EPPs' Motion to Exclude the Opinions and Testimony of James
W. Hughes, Ph.D. is GRANTED IN PART AND DENIED IN PART;
4. Defendants' Motion to Exclude the Opinions and Testimony of
EPPs' Experts Eric Miller, Laura Craft, and Myron Winkelman,
is GRANTED IN PART AND DENIED IN PART; and
5. the EPPs' Motion to Exclude the Opinions and Testimony
of Mr. Timothy E. Kosty and Dr. Bruce A. Strombom id DENIED.
City of Providence, individually and on behalf of itself and all
others similarly situated, Plaintiff, represented by Donald A.
Migliori , Motley Rice LLC, Jeffrey M. Padwa , DarrowEverett LLP,
John Andrew Ioannou , Motley Rice LLC, pro hac vice, Michael M.
Buchman , Motley Rice LLC, pro hac vice, Robert J. McConnell ,
Motley Rice LLC, Bonnie A. Kendrick , The Dugan Law Firm, pro hac
vice, David S. Scalia , The Dugan Law Firm, Douglas R. Plymale ,
Dugan Law Firm, Ellen T. Noteware , Berger Montague PC, pro hac
vice
Walgreen, Co., Plaintiffs, represented by Anna T. Neill , Kenny
Nachwalter, P.A., pro hac vice, Lauren C. Ravkind , Kenny
Nachwalter, P.A., pro hac vice, Matthew Thomas Oliverio , Oliverio
& Marcaccio LLP, Paul J. Skiermont , Skiermont Derby LLP, pro hac
vice, Scott E. Perwin , Kenny Nachwalter, P.A., pro hac vice,
Bonnie A. Kendrick , The Dugan Law Firm, pro hac vice, David S.
Scalia , The Dugan Law Firm, Douglas R. Plymale , Dugan Law Firm,
Ellen T. Noteware , Berger Montague PC, pro hac vice.
MAGIC TOUCH: Samuels Seeks to Recover Minimum and Overtime Wages
----------------------------------------------------------------
Lennox Samuels and Newton Hinds IV, individually and on behalf of
all others similarly situated v. MAGIC TOUCH CAR WASH INC., TRIPLE
FRIEND SERVICE STATION INC., BP TRIPLE FRIEND SERVICE STATION INC.,
QINGQING TANG and WEI LIU and any other affiliated entities that
employed Plaintiff and members of the putative class, Case No.
160986/2019 (N.Y. Sup., New York Cty., Nov. 8, 2019), is brought
pursuant to the New York Labor Law to recover unpaid wages, minimum
wage, overtime, and spread of hours compensations owed.
The Defendants have engaged in a policy and practice of failing to
pay the Plaintiffs their earned wages, including failing to pay
them for every hours worked up to 40 hours in one week at the
minimum wages rate, failing to pay them overtime compensation at
the rate of one and one-half times their regular rate of pay for
hours worked in excess of 40 in a week, and failing to pay
"spread-of-hours" wages to employees who worked in excess of 10
hours per workday, says the complaint.
The Plaintiffs worked for the Defendants from December 2016 to July
2019.
The Defendants are businesses incorporated under the laws of the
State of New York.[BN]
The Plaintiffs are represented by:
Jack L. Newhouse, Esq.
Rachel R. Feigngold, Esq.
VIRGINIA & AMBINDER, LLP
40 Broad Street, 7th Floor
New York, NY 10004
Phone: (212) 943-9080
Email: jnewhouse@vandallp.com
MARKEL CORP: Consolidated Class Suit in NY Voluntarily Dismissed
----------------------------------------------------------------
Markel Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that plaintiff in the
consolidated class action suit in the U.S. District Court for the
Southern District of New York, voluntarily dismissed that action
without prejudice.
Between January 11, 2019 and March 7, 2019, several related
putative class actions were filed in the U.S. District Court for
the Southern District of New York against Markel Corporation and
certain present or former officers and directors alleging
violations of the federal securities laws relating to the matters
that are the subject of the Markel CATCo Inquiries.
Plaintiffs sought to represent a class of persons or entities that
purchased Markel securities between July 26, 2017 and December 6,
2018. The actions were consolidated.
The plaintiff in the consolidated action voluntarily dismissed that
action without prejudice on August 6, 2019.
Markel Corporation, a diverse financial holding company, markets
and underwrites specialty insurance products in the United States,
the United Kingdom, Canada, and internationally. Markel Corporation
was founded in 1930 and is headquartered in Glen Allen, Virginia.
MASTERCARD INC: ATM Surcharge Fees Litigation Underway
------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2019, for the
quarterly period ended September 30, 2019, that the company expects
briefing on class certification in suits over ATM Surcharge Fees to
be completed in the second quarter of 2020.
In October 2011, a trade association of independent Automated
Teller Machine ("ATM") operators and 13 independent ATM operators
filed a complaint styled as a class action lawsuit in the U.S.
District Court for the District of Columbia against both Mastercard
and Visa (the "ATM Operators Complaint").
Plaintiffs seek to represent a class of non-bank operators of ATM
terminals that operate in the United States with the discretion to
determine the price of the ATM access fee for the terminals they
operate.
Plaintiffs allege that Mastercard and Visa have violated Section 1
of the Sherman Act by imposing rules that require ATM operators to
charge non-discriminatory ATM surcharges for transactions processed
over Mastercard's and Visa's respective networks that are not
greater than the surcharge for transactions over other networks
accepted at the same ATM.
Plaintiffs seek both injunctive and monetary relief equal to treble
the damages they claim to have sustained as a result of the alleged
violations and their costs of suit, including attorneys' fees.
Subsequently, multiple related complaints were filed in the U.S.
District Court for the District of Columbia alleging both federal
antitrust and multiple state unfair competition, consumer
protection and common law claims against Mastercard and Visa on
behalf of putative classes of users of ATM services (the "ATM
Consumer Complaints").
The claims in these actions largely mirror the allegations made in
the ATM Operators Complaint, although these complaints seek damages
on behalf of consumers of ATM services who pay allegedly inflated
ATM fees at both bank and non-bank ATM operators as a result of the
defendants' ATM rules.
Plaintiffs seek both injunctive and monetary relief equal to treble
the damages they claim to have sustained as a result of the alleged
violations and their costs of suit, including attorneys' fees.
In January 2012, the plaintiffs in the ATM Operators Complaint and
the ATM Consumer Complaints filed amended class action complaints
that largely mirror their prior complaints.
In February 2013, the district court granted Mastercard's motion to
dismiss the complaints for failure to state a claim. On appeal, the
Court of Appeals reversed the district court's order in August 2015
and sent the case back for further proceedings.
In September 2019, the plaintiffs filed their motions for class
certification in which the plaintiffs, in aggregate, allege over $1
billion in damages against all of the defendants.
Mastercard intends to vigorously defend against both the
plaintiffs' liability and damages claims and to oppose class
certification. Mastercard expects briefing on class certification
to be completed in the second quarter of 2020.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MASTERCARD INC: Final Settlement Approval Hearing This Month
------------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2019, for the
quarterly period ended September 30, 2019, that the U.S. district
court in New York has scheduled a final approval hearing in the
Damages Class this November 2019.
In June 2005, the first of a series of complaints were filed on
behalf of merchants (the majority of the complaints were styled as
class actions, although a few complaints were filed on behalf of
individual merchant plaintiffs) against Mastercard International,
Visa U.S.A., Inc., Visa International Service Association and a
number of financial institutions.
Taken together, the claims in the complaints were generally brought
under both Sections 1 and 2 of the Sherman Act, which prohibit
monopolization and attempts or conspiracies to monopolize a
particular industry, and some of these complaints contain unfair
competition law claims under state law.
The complaints allege, among other things, that Mastercard, Visa,
and certain financial institutions conspired to set the price of
interchange fees, enacted point of sale acceptance rules (including
the no surcharge rule) in violation of antitrust laws and engaged
in unlawful tying and bundling of certain products and services.
The cases were consolidated for pre-trial proceedings in the U.S.
District Court for the Eastern District of New York in MDL No.
1720. The plaintiffs filed a consolidated class action complaint
that seeks treble damages.
In July 2006, the group of purported merchant class plaintiffs
filed a supplemental complaint alleging that Mastercard's initial
public offering of its Class A Common Stock in May 2006 (the "IPO")
and certain purported agreements entered into between Mastercard
and financial institutions in connection with the IPO: (1) violate
U.S. antitrust laws and (2) constituted a fraudulent conveyance
because the financial institutions allegedly attempted to release,
without adequate consideration, Mastercard's right to assess them
for Mastercard's litigation liabilities.
The class plaintiffs sought treble damages and injunctive relief
including, but not limited to, an order reversing and unwinding the
IPO.
In February 2011, Mastercard and Mastercard International entered
into each of: (1) an omnibus judgment sharing and settlement
sharing agreement with Visa Inc., Visa U.S.A. Inc. and Visa
International Service Association and a number of financial
institutions; and (2) a Mastercard settlement and judgment sharing
agreement with a number of financial institutions.
The agreements provide for the apportionment of certain costs and
liabilities which Mastercard, the Visa parties and the financial
institutions may incur, jointly and/or severally, in the event of
an adverse judgment or settlement of one or all of the cases in the
merchant litigations.
Among a number of scenarios addressed by the agreements, in the
event of a global settlement involving the Visa parties, the
financial institutions and Mastercard, Mastercard would pay 12% of
the monetary portion of the settlement.
In the event of a settlement involving only Mastercard and the
financial institutions with respect to their issuance of Mastercard
cards, Mastercard would pay 36% of the monetary portion of such
settlement.
In October 2012, the parties entered into a definitive settlement
agreement with respect to the merchant class litigation (including
with respect to the claims related to the IPO) and the defendants
separately entered into a settlement agreement with the individual
merchant plaintiffs.
The settlements included cash payments that were apportioned among
the defendants pursuant to the omnibus judgment sharing and
settlement sharing agreement described above.
Mastercard also agreed to provide class members with a short-term
reduction in default credit interchange rates and to modify certain
of its business practices, including its "no surcharge" rule.
The court granted final approval of the settlement in December
2013, and objectors to the settlement appealed that decision to the
U.S. Court of Appeals for the Second Circuit.
In June 2016, the court of appeals vacated the class action
certification, reversed the settlement approval and sent the case
back to the district court for further proceedings. The court of
appeals' ruling was based primarily on whether the merchants were
adequately represented by counsel in the settlement.
As a result of the appellate court ruling, the district court
divided the merchants' claims into two separate classes - monetary
damages claims (the "Damages Class") and claims seeking changes to
business practices (the "Rules Relief Class"). The court appointed
separate counsel for each class.
In September 2018, the parties to the Damages Class litigation
entered into a class settlement agreement to resolve the Damages
Class claims. Mastercard increased its reserve by $237 million
during 2018 to reflect both its expected financial obligation under
the Damages Class settlement agreement and the filed and
anticipated opt-out merchant cases.
In January 2019, the district court issued an order granting
preliminary approval of the settlement and authorized notice of the
settlement to class members.
The time period during which Damages Class members were permitted
to opt out of the class settlement agreement ended in July 2019.
Merchants representing slightly more than 25% of the Damages Class
interchange volume chose to opt out of the settlement. The district
court has scheduled a final approval hearing in November 2019.
Mastercard has commenced settlement negotiations with a number of
the opt-out merchants and has reached settlements and/or agreements
in principle to settle a number of these claims. The Damages Class
settlement agreement does not relate to the Rules Relief Class
claims. Separate settlement negotiations with the Rules Relief
Class are ongoing.
As of September 30, 2019 and December 31, 2018, Mastercard had
accrued a liability of $920 million and $915 million, respectively,
as a reserve for both the Damages Class litigation and the filed
and anticipated opt-out merchant cases.
As of September 30, 2019 and December 31, 2018, Mastercard had $666
million and $553 million, respectively, in a qualified cash
settlement fund related to the Damages Class litigation and
classified as restricted cash on its consolidated balance sheet.
During the first quarter of 2019, Mastercard increased its
qualified cash settlement fund by $108 million in accordance with
the January 2019 preliminary approval of the settlement.
Mastercard said, "The reserve as of September 30, 2019 for both the
Damages Class litigation and the filed opt-out merchants represents
Mastercard's best estimate of its probable liabilities in these
matters. The portion of the accrued liability relating to both the
opt-out merchants and the Damages class litigation settlement does
not represent an estimate of a loss, if any, if the matters were
litigated to a final outcome. Mastercard cannot estimate the
potential liability if that were to occur."
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MASTERCARD INC: Point-of-Sale Acceptance Suit Ongoing in Canada
---------------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2019, for the
quarterly period ended September 30, 2019, that the company
continues to defend class action suits in Canada related to its
rules related to point-of-sale acceptance, including the "honor all
cards" and "no surcharge" rules.
In December 2010, a proposed class action complaint was commenced
against Mastercard in Quebec on behalf of Canadian merchants.
The suit essentially repeated the allegations and arguments of a
previously filed application by the Canadian Competition Bureau to
the Canadian Competition Tribunal (dismissed in Mastercard's favor)
concerning certain Mastercard rules related to point-of-sale
acceptance, including the "honor all cards" and "no surcharge"
rules.
The Quebec suit sought compensatory and punitive damages in
unspecified amounts, as well as injunctive relief.
In the first half of 2011, additional purported class action
lawsuits were commenced in British Columbia and Ontario against
Mastercard, Visa and a number of large Canadian financial
institutions.
The British Columbia suit sought compensatory damages in
unspecified amounts, and the Ontario suit sought compensatory
damages of $5 billion on the basis of alleged conspiracy and
various alleged breaches of the Canadian Competition Act.
Additional purported class action complaints were commenced in
Saskatchewan and Alberta with claims that largely mirror those in
the other suits.
In June 2017, Mastercard entered into a class settlement agreement
to resolve all of the Canadian class action litigation. The
settlement, which requires Mastercard to make a cash payment and
modify its "no surcharge" rule, has received court approval in each
Canadian province.
Objectors to the settlement have sought to appeal the approval
orders. Certain appellate courts have rejected the objectors'
appeals, while outstanding appeals remain in a few provinces.
In 2017, Mastercard recorded a provision for litigation of $15
million related to this matter.
No further updates were provided in the Company's SEC report.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MASTERCARD INC: Shift Fraud Liability Suit Still Ongoing
--------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2019, for the
quarterly period ended September 30, 2019, that the company
continues to defend itself against a merchant class action suit
involving conspiracy to shift fraud liability.
In March 2016, a proposed U.S. merchant class action complaint was
filed in federal court in California alleging that Mastercard,
Visa, American Express and Discover (the "Network Defendants"),
EMVCo, and a number of issuing banks (the "Bank Defendants")
engaged in a conspiracy to shift fraud liability for card present
transactions from issuing banks to merchants not yet in compliance
with the standards for EMV chip cards in the United States (the
"EMV Liability Shift"), in violation of the Sherman Act and
California law.
Plaintiffs allege damages equal to the value of all chargebacks for
which class members became liable as a result of the EMV Liability
Shift on October 1, 2015.
The plaintiffs seek treble damages, attorney's fees and costs and
an injunction against future violations of governing law, and the
defendants have filed a motion to dismiss.
In September 2016, the court denied the Network Defendants' motion
to dismiss the complaint, but granted such a motion for EMVCo and
the Bank Defendants.
In May 2017, the court transferred the case to New York so that
discovery could be coordinated with the U.S. merchant class
interchange litigation.
The plaintiffs have filed a renewed motion for class certification,
following the district court's denial of their initial motion.
No further updates were provided in the Company's SEC report.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MASTERCARD INC: TCPA Class Suit in Florida Remains Stayed
---------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 29, 2019, for the
quarterly period ended September 30, 2019, that the Telephone
Consumer Protection Act ("TCPA") class action suit in Florida is
still stayed.
Mastercard is a defendant in a Telephone Consumer Protection Act
("TCPA) class action pending in Florida.
The plaintiffs are individuals and businesses who allege that
approximately 381,000 unsolicited faxes were sent to them
advertising a Mastercard co-brand card issued by First Arkansas
Bank ("FAB").
The TCPA provides for uncapped statutory damages of $500 per fax.
Mastercard has asserted various defenses to the claims, and has
notified FAB of an indemnity claim that it has (which FAB has
disputed).
In June 2018, the court granted Mastercard's motion to stay the
proceedings until the Federal Communications Commission makes a
decision on the application of the TCPA to online fax services.
No further updates were provided in the Company's SEC report.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MDL 2913: JG v. JUUL Labs Over Sale of E-Cigarettes Consolidated
----------------------------------------------------------------
The class action lawsuit styled as J.G. as guardian of his minor
child C.G., and on behalf of those similarly situated, and J.G.
individually, and on behalf of those similarly situated, Plaintiff
v. JUUL LABS INC., ALTRIA GROUP, INC., and PHILIP MORRIS USA, INC.,
Defendants, Case No. 1:19-cv-17826 (Filed Sept. 10, 2019), was
transferred from the U.S. District Court for the District of New
Jersey to the U.S. District Court for the Northern District
California (San Francisco) on Oct 24, 2019.
The Northern District California Court Clerk assigned Case No.
3:19-cv-06930-WHO to the proceeding.
The suit alleges violation of the Racketeer Influenced and Corrupt
Organizations Act.
The Defendants have engaged and continue to engage in unfair,
unlawful, and deceptive trade practices in Florida, the Plaintiff
alleges. In particular, the Defendants have knowingly developed,
sold, and promote a product that contained nicotine levels in
excess of cigarettes with the intention of creating and fostering
long-term addiction to JUUL products for minors to continue that
addiction into adulthood; selling a product that aggravates
nicotine addiction; creating advertising to target youth into using
JUUL e-cigarettes, and disseminating that advertising through
unregulated social media platforms commonly used by youth.
The Plaintiff and class members reasonably relied to their
detriment on Defendants' unlawful conduct in that they purchased
JUUL not knowing the true propensity of its dangers. They have
sustained damages as a direct and proximate result of the
Defendants' tortious conduct and seek injunctive relief to prohibit
Defendants from continuing to engage in the unfair and deceptive
advertising and marketing practices.
JUUL e-cigarettes and JUULpods deliver dangerous toxins and
carcinogens to users, especially teenage users. Nicotine itself is
a carcinogen, as well as a toxic chemical associated with
cardiovascular, reproductive, and immunosuppressive problems, the
lawsuit says.
The J.G.case is being consolidated with MDL 2913 in RE: JUUL LABS,
INC., MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on Oct. 2, 2019. The
actions in this litigation involve allegations that JLI has
marketed its JUUL nicotine delivery products in a manner designed
to attract minors, that JLI's marketing misrepresents or omits that
JUUL products are more potent and addictive than cigarettes, that
JUUL products are defective and unreasonably dangerous due to their
attractiveness to minors, and that JLI promotes nicotine addiction.
The actions include both putative class actions and individual
personal injury cases.
In its Oct. 2, 2019 Order, the MDL Panel found that the actions
share multiple factual issues concerning the development,
manufacture, labeling, and marketing of JUUL products, and the
alleged risks posed by use of those products. Centralization will
eliminate duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other pretrial
matters, and conserve judicial and party resources. The Panel
select the Northern District of California as the transferee
district. JLI is headquartered in that district, and it represents
that most of the key evidence and witnesses are located there.
Presiding Judge in the MDL is Hon. Judge William H. Orrick III. The
lead case is Case No. 3:19-md-02913-WHO.[BN]
The Plaintiff is represented by:
Zachary M. Green, Esq.
JAVERBAUM WURGAFT HICKS KAHN WIKSTROM & SINIS, P.C.
1000 Haddonfield-Berlin Road, Suite 203
Voorhees, NJ 08043
Telephone: (856) 596-4100
MDL 2913: McFaull v. JUUL Over Sale of E-Cigarettes Consolidated
----------------------------------------------------------------
The class action lawsuit styled as JOHN MCFAULL, individually and
on behalf of those similarly situated, Plaintiff v. JUUL Labs Inc.,
and Pax Labs Inc., Case No. 5:19-cv-00378 (Filed Sept. 17, 2019),
was transferred from the U.S. District Court for the Eastern
District of Kentucky to the U.S. District Court for the Northern
District of California (San Francisco) on Oct 24, 2019.
The Northern District California Court Clerk assigned Case No.
3:19-cv-06923-WHO to the proceeding.
The suit alleges violation of the Racketeer Influenced and Corrupt
Organizations Act.
The Defendants have engaged and continue to engage in unfair,
unlawful, and deceptive trade practices, the Plaintiff alleges. In
particular, the Defendants have knowingly developed, sold, and
promote a product that contained nicotine levels in excess of
cigarettes with the intention of creating and fostering long-term
addiction to JUUL products for minors to continue that addiction
into adulthood; selling a product that aggravates nicotine
addiction; creating advertising to target youth into using JUUL
e-cigarettes, and disseminating that advertising through
unregulated social media platforms commonly used by youth.
The Plaintiff and class members reasonably relied to their
detriment on Defendants' unlawful conduct in that they purchased
JUUL not knowing the true propensity of its dangers. They have
sustained damages as a direct and proximate result of Defendants'
tortious conduct and seek injunctive relief to prohibit Defendants
from continuing to engage in the unfair and deceptive advertising
and marketing practices.
JUUL e-cigarettes and JUULpods deliver dangerous toxins and
carcinogens to users, especially teenage users. Nicotine itself is
a carcinogen, as well as a toxic chemical associated with
cardiovascular, reproductive, and immunosuppressive problems, the
lawsuit says.
The McFaull case is being consolidated with MDL 2913 in RE: JUUL
LABS, INC., MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on Oct. 2, 2019. The
actions in this litigation involve allegations that JLI has
marketed its JUUL nicotine delivery products in a manner designed
to attract minors, that JLI's marketing misrepresents or omits that
JUUL products are more potent and addictive than cigarettes, that
JUUL products are defective and unreasonably dangerous due to their
attractiveness to minors, and that JLI promotes nicotine addiction.
The actions include both putative class actions and individual
personal injury cases.
In its Oct. 2, 2019 Order, the MDL Panel found that the actions
share multiple factual issues concerning the development,
manufacture, labeling, and marketing of JUUL products, and the
alleged risks posed by use of those products. Centralization will
eliminate duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other pretrial
matters, and conserve judicial and party resources. The Panel
select the Northern District of California as the transferee
district. JLI is headquartered in that district, and it represents
that most of the key evidence and witnesses are located there.
Presiding Judge in the MDL is Hon. Judge William H. Orrick III. The
lead case is Case No. 3:19-md-02913-WHO.[BN]
The Plaintiff is represented by:
Barbara D. Bonar, Esq.
BONAR, BUCHER & RANKIN, PSC
3611 Decoursey Avenue
Covington, KY 41015
Telephone (859) 431-3333
Facsimile (859) 392-3900
E-mail: bdbonar@lawatbdb.com
- and -
Joseph G. Tekulve, Esq.
TEKULVE LAW
785 Ohio Pike
Cincinnati, OH 45245
Telephone (513) 752-0001
Facsimile (513) 752-0289
E-mail: joetekulvelaw@gmail.com
MDL 2913: Montgomery v. JUUL Suit Over E-Cigarettes Consolidated
----------------------------------------------------------------
The class action lawsuit styled as Montgomery County, Maryland,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff v. JUUL Labs Inc. and Altria Group Inc., Defendants,
Case No. 8:19-cv-02981 (Filed Oct. 11, 2019), was transferred from
the U.S. District Court for the District of Maryland to the U.S.
District Court for the Northern District of California (San
Francisco) on Oct 25, 2019.
The Northern District of California Court Clerk assigned Case No.
3:19-cv-06905-WHO to the proceeding.
The suit alleges violation of the Racketeer Influenced and Corrupt
Organizations Act.
The Defendants have engaged and continue to engage in unfair,
unlawful, and deceptive trade practices, the Plaintiff alleges. In
particular, the Defendants have knowingly developed, sold, and
promote a product that contained nicotine levels in excess of
cigarettes with the intention of creating and fostering long-term
addiction to JUUL products for minors to continue that addiction
into adulthood; selling a product that aggravates nicotine
addiction; creating advertising to target youth into using JUUL
e-cigarettes, and disseminating that advertising through
unregulated social media platforms commonly used by youth.
The Plaintiff and class members reasonably relied to their
detriment on the Defendants' unlawful conduct in that they
purchased JUUL not knowing the true propensity of its dangers,
according to the complaint. They have sustained damages as a direct
and proximate result of the Defendants' tortious conduct and seek
injunctive relief to prohibit Defendants from continuing to engage
in the unfair and deceptive advertising and marketing practices.
JUUL e-cigarettes and JUULpods deliver dangerous toxins and
carcinogens to users, especially teenage users. Nicotine itself is
a carcinogen, as well as a toxic chemical associated with
cardiovascular, reproductive, and immunosuppressive problems, the
lawsuit says.
The Montgomery case is being consolidated with the multidistrict
litigation titled IN RE: JUUL LABS, INC., MARKETING, SALES
PRACTICES, AND PRODUCTS LIABILITY LITIGATION, MDL No. 2913. The MDL
was created by Order of the United States Judicial Panel on
Multidistrict Litigation on Oct. 2, 2019. The actions in this
litigation involve allegations that JLI has marketed its JUUL
nicotine delivery products in a manner designed to attract minors,
that JLI's marketing misrepresents or omits that JUUL products are
more potent and addictive than cigarettes, that JUUL products are
defective and unreasonably dangerous due to their attractiveness to
minors, and that JLI promotes nicotine addiction. The actions
include both putative class actions and individual personal injury
cases.
In its Oct. 2, 2019 Order, the MDL Panel found that the actions
share multiple factual issues concerning the development,
manufacture, labeling, and marketing of JUUL products, and the
alleged risks posed by use of those products. Centralization will
eliminate duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other pretrial
matters, and conserve judicial and party resources. The Panel
select the Northern District of California as the transferee
district. JLI is headquartered in that district, and it represents
that most of the key evidence and witnesses are located there.
Presiding Judge in the MDL is Hon. Judge William H. Orrick III. The
lead case is Case No. 3:19-md-02913-WHO.[BN]
The Plaintiff is represented by:
John Paul Markovs, Esq.
Marc Pemble Hansen, Esq.
Megan B Greene, Esq.
OFFICE OF THE COUNTY ATTORNEY FOR MONTGOMERY COUNTY, MD
101 Monroe Street, Third Floor
Rockville, MD 20850
Telephone: (240) 777-6725
Facsimile: (240) 777-6706
E-mail: john.markovs@montgomerycountymd.gov
marc.hansen@montgomerycountymd.gov
megan.greene@montgomerycountymd.gov
MDL 2913: Murphy v. JUUL Over Sale of E-Cigarettes Consolidated
---------------------------------------------------------------
The class action lawsuit styled as Matthew Murphy, Cade
beauparlant, and Marianne Savage, individually, and on behalf of
those similarly situated, Plaintiff v. JUUL LABS INC., Defendant,
Case No. 1:19-cv-11755 (Filed Aug. 15, 2019), was transferred from
the U.S. District Court for the District of Massachusetts to the
U.S. District Court for the Northern District of California (San
Francisco) on Oct 24, 2019.
The Northern District California Court Clerk assigned Case No.
3:19-cv-06927-WHO to the proceeding.
The suit alleges violation of the Racketeer Influenced and Corrupt
Organizations Act.
The Defendants have engaged and continue to engage in unfair,
unlawful, and deceptive trade practices, the Plaintiff alleges. In
particular, the Defendants have knowingly developed, sold, and
promote a product that contained nicotine levels in excess of
cigarettes with the intention of creating and fostering long-term
addiction to JUUL products for minors to continue that addiction
into adulthood; selling a product that aggravates nicotine
addiction; creating advertising to target youth into using JUUL
e-cigarettes, and disseminating that advertising through
unregulated social media platforms commonly used by youth.
The Plaintiffs and class members reasonably relied to their
detriment on Defendants' unlawful conduct in that they purchased
JUUL not knowing the true propensity of its dangers. They have
sustained damages as a direct and proximate result of Defendants'
tortious conduct and seek injunctive relief to prohibit Defendants
from continuing to engage in the unfair and deceptive advertising
and marketing practices.
JUUL e-cigarettes and JUULpods deliver dangerous toxins and
carcinogens to users, especially teenage users. Nicotine itself is
a carcinogen, as well as a toxic chemical associated with
cardiovascular, reproductive, and immunosuppressive problems, the
lawsuit says.
The Murphy case is being consolidated with MDL 2913 in RE: JUUL
LABS, INC., MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on Oct. 2, 2019. The
actions in this litigation involve allegations that JLI has
marketed its JUUL nicotine delivery products in a manner designed
to attract minors, that JLI's marketing misrepresents or omits that
JUUL products are more potent and addictive than cigarettes, that
JUUL products are defective and unreasonably dangerous due to their
attractiveness to minors, and that JLI promotes nicotine addiction.
The actions include both putative class actions and individual
personal injury cases.
In its Oct. 2, 2019 Order, the MDL Panel found that the actions
share multiple factual issues concerning the development,
manufacture, labeling, and marketing of JUUL products, and the
alleged risks posed by use of those products. Centralization will
eliminate duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other pretrial
matters, and conserve judicial and party resources. The Panel
select the Northern District of California as the transferee
district. JLI is headquartered in that district, and it represents
that most of the key evidence and witnesses are located there.
Presiding Judge in the MDL is Hon. Judge William H. Orrick III. The
lead case is Case No. 3:19-md-02913-WHO.[BN]
The Plaintiffs are represented by:
Mark A Gottlieb, Esq.
PUBLIC HEALTH ADVOCACY INSTITUTE
360 Huntington Avenue, 117CU
Boston, MA 02115
Telephone: (617) 373-8487
Facsimile: (617) 373-3672
E-mail: mark@phaionline.org
The Defendant is represented by:
Ana M. Francisco, Esq.
FOLEY & LARDNER LLP
111 Huntington Avenue, Suite 2500
Boston, MA 02199
Telephone: (617) 342-4096
E-mail: afrancisco@foley.com
MDL 2913: NC v. JUUL Over Sale of E-Cigarettes Consolidated
-----------------------------------------------------------
The class action lawsuit styled as N.C. a Minor, by his Father and
Natural Guardian T.C. and on behalf of all others similarly
situated, Plaintiff v. JUUL LABS INC., Defendant, Case No.
1:19-cv-08779 (Filed Sept. 23, 2019), was transferred from the U.S.
District Court for the Southern District of New York to the U.S.
District Court for the Northern District of California (San
Francisco) on Oct 24, 2019.
The Northern District California Court Clerk assigned Case No.
3:19-cv-06912-WHO to the proceeding.
The suit alleges violation of the Racketeer Influenced and Corrupt
Organizations Act.
The Defendants have engaged and continue to engage in unfair,
unlawful, and deceptive trade practices, the Plaintiff alleges. In
particular, the Defendants have knowingly developed, sold, and
promote a product that contained nicotine levels in excess of
cigarettes with the intention of creating and fostering long-term
addiction to JUUL products for minors to continue that addiction
into adulthood; selling a product that aggravates nicotine
addiction; creating advertising to target youth into using JUUL
e-cigarettes, and disseminating that advertising through
unregulated social media platforms commonly used by youth.
The Plaintiff and class members reasonably relied to their
detriment on the Defendants' unlawful conduct in that they
purchased JUUL not knowing the true propensity of its dangers. They
have sustained damages as a direct and proximate result of
Defendants' tortious conduct and seek injunctive relief to prohibit
the Defendants from continuing to engage in the unfair and
deceptive advertising and marketing practices.
JUUL e-cigarettes and JUULpods deliver dangerous toxins and
carcinogens to users, especially teenage users. Nicotine itself is
a carcinogen, as well as a toxic chemical associated with
cardiovascular, reproductive, and immunosuppressive problems, the
lawsuit says.
The N.C. case is being consolidated with MDL 2913 in RE: JUUL LABS,
INC., MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on Oct. 2, 2019. The
actions in this litigation involve allegations that JLI has
marketed its JUUL nicotine delivery products in a manner designed
to attract minors, that JLI's marketing misrepresents or omits that
JUUL products are more potent and addictive than cigarettes, that
JUUL products are defective and unreasonably dangerous due to their
attractiveness to minors, and that JLI promotes nicotine addiction.
The actions include both putative class actions and individual
personal injury cases.
In its Oct. 2, 2019 Order, the MDL Panel found that the actions
share multiple factual issues concerning the development,
manufacture, labeling, and marketing of JUUL products, and the
alleged risks posed by use of those products. Centralization will
eliminate duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other pretrial
matters, and conserve judicial and party resources. The Panel
select the Northern District of California as the transferee
district. JLI is headquartered in that district, and it represents
that most of the key evidence and witnesses are located there.
Presiding Judge in the MDL is Hon. Judge William H. Orrick III. The
lead case is Case No. 3:19-md-02913-WHO.[BN]
The Plaintiff is represented by:
Andrew Dickens Schlichter, Esq.
SCHLICHTER BOGARD & DENTON, LLP
100 S. 4th Street, Ste. 1200
St. Louis, MO 63102
Telephone: (314) 621-6115
Facsimile: (314) 621-5934
E-mail: aschlichter@uselaws.com
MDL 2913: Phillips v. JUUL Over Sale of E-Cigarettes Consolidated
-----------------------------------------------------------------
The class action lawsuit styled as Chasity Phillips, individually,
and as guardian of her minor child, A.P., on behalf of herself and
those similarly situated, Plaintiff v. JUUL LABS INC. and ALTRIA
GROUP INC., Defendants, Case No. 2:19-cv-04172 (Filed Aug. 21,
2019), was transferred from the U.S. District Court for the Western
District of Missouri to the U.S. District Court for the Northern
District of California (San Francisco) on Oct 24, 2019.
The Northern District California Court Clerk assigned Case No.
3:19-cv-06915-WHO to the proceeding.
The suit alleges violation of the Racketeer Influenced and Corrupt
Organizations Act.
The Defendants have engaged and continue to engage in unfair,
unlawful, and deceptive trade practices, the Plaintiff alleges. In
particular, Defendants have knowingly developed, sold, and promote
a product that contained nicotine levels in excess of cigarettes
with the intention of creating and fostering long-term addiction to
JUUL products for minors to continue that addiction into adulthood;
selling a product that aggravates nicotine addiction; creating
advertising to target youth into using JUUL e-cigarettes, and
disseminating that advertising through unregulated social media
platforms commonly used by youth.
The Plaintiff and class members reasonably relied to their
detriment on Defendants' unlawful conduct in that they purchased
JUUL not knowing the true propensity of its dangers. They have
sustained damages as a direct and proximate result of Defendants'
tortious conduct and seek injunctive relief to prohibit Defendants
from continuing to engage in the unfair and deceptive advertising
and marketing practices.
JUUL e-cigarettes and JUULpods deliver dangerous toxins and
carcinogens to users, especially teenage users. Nicotine itself is
a carcinogen, as well as a toxic chemical associated with
cardiovascular, reproductive, and immunosuppressive problems, the
lawsuit says.
The Phillips case is being consolidated with MDL 2913 in RE: JUUL
LABS, INC., MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on Oct. 2, 2019. The
actions in this litigation involve allegations that JLI has
marketed its JUUL nicotine delivery products in a manner designed
to attract minors, that JLI's marketing misrepresents or omits that
JUUL products are more potent and addictive than cigarettes, that
JUUL products are defective and unreasonably dangerous due to their
attractiveness to minors, and that JLI promotes nicotine addiction.
The actions include both putative class actions and individual
personal injury cases.
In its Oct. 2, 2019 Order, the MDL Panel found that the actions
share multiple factual issues concerning the development,
manufacture, labeling, and marketing of JUUL products, and the
alleged risks posed by use of those products. Centralization will
eliminate duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other pretrial
matters, and conserve judicial and party resources. The Panel
select the Northern District of California as the transferee
district. JLI is headquartered in that district, and it represents
that most of the key evidence and witnesses are located there.
Presiding Judge in the MDL is Hon. Judge William H. Orrick III. The
lead case is Case No. 3:19-md-02913-WHO.[BN]
The Plaintiff is represented by:
Bradley D. Honnold, Esq.
GOZA HONNOLD, LLC
9500 Nall Ave., Suite 400
Overland Park, KS 66207
Telephone: (913) 451-3433
E-mail: bhonnold@gohonlaw.com
- and -
Jonathan P. Kieffer, Esq.
WAGSTAFF & CARTMELL, LLP
4740 Grand Avenue, Suite 300
Kansas City, MO 64112
Telephone: (816) 701-1103
Facsimile: (816) 531-2372
E-mail: jpkieffer@wcllp.com
- and -
Kirk J. Goza, Esq.
GOZA HONNOLD TRIAL LAWYERS
11181 Overbrook Road, Suite 200
Leawood, KS 66211
Telephone: (913) 451-3433
Facsimile: (913) 839-0567
E-mail: kgoza@gohonlaw.com
- and -
Tyler Hudson, Esq.
Thomas P. Cartmell, Esq.
WAGSTAFF & CARTMELL
4740 Grand Avenue, Suite 300
Kansas City, MO 64112
Telephone: (816) 701-1177
Fax: (816) 531-2372
E-mail: thudson@wcllp.com
tcartmell@wcllp.com
The Defendant is represented by:
James F. Bennett, Esq.
DOWD BENNETT LLP
7733 Forsyth Blvd., Ste. 1900
Clayton, MO 63105
Telephone: (314) 889-7302
Facsimile: (314) 863-2111
E-mail: jbennett@dowdbennett.com
MDL 2913: Quercia v. JUUL Over Sale of E-Cigarettes Consolidated
----------------------------------------------------------------
The class action lawsuit styled as Anastasia Quercia, on behalf of
herself and on behalf of those similarly situated, Plaintiff v.
JUUL Labs Inc., Altria Group Inc., and Philip Morris USA Inc.,
Defendants, Case No. 1:19-cv-05664 (Filed Aug. 22, 2019), was
transferred from the U.S. District Court for the Northern District
of Illinois to the U.S. District Court for the Northern District of
California (San Francisco) on Oct 23, 2019.
The Northern District of California Court Clerk assigned Case No.
3:19-cv-06901-WHO to the proceeding.
The suit alleges violation of the Racketeer Influenced and Corrupt
Organizations Act.
The Defendants have engaged and continue to engage in unfair,
unlawful, and deceptive trade practices, the Plaintiff alleges. In
particular, the Defendants have knowingly developed, sold, and
promote a product that contained nicotine levels in excess of
cigarettes with the intention of creating and fostering long-term
addiction to JUUL products for minors to continue that addiction
into adulthood; selling a product that aggravates nicotine
addiction; creating advertising to target youth into using JUUL
e-cigarettes, and disseminating that advertising through
unregulated social media platforms commonly used by youth.
The Plaintiff and class members reasonably relied to their
detriment on the Defendants' unlawful conduct in that they
purchased JUUL not knowing the true propensity of its dangers. They
have sustained damages as a direct and proximate result of
Defendants' tortious conduct and seek injunctive relief to prohibit
the Defendants from continuing to engage in the unfair and
deceptive advertising and marketing practices.
JUUL e-cigarettes and JUULpods deliver dangerous toxins and
carcinogens to users, especially teenage users. Nicotine itself is
a carcinogen, as well as a toxic chemical associated with
cardiovascular, reproductive, and immunosuppressive problems, the
lawsuit says.
The Quercia case is being consolidated with MDL 2913 in RE: JUUL
LABS, INC., MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on Oct. 2, 2019. The
actions in this litigation involve allegations that JLI has
marketed its JUUL nicotine delivery products in a manner designed
to attract minors, that JLI's marketing misrepresents or omits that
JUUL products are more potent and addictive than cigarettes, that
JUUL products are defective and unreasonably dangerous due to their
attractiveness to minors, and that JLI promotes nicotine addiction.
The actions include both putative class actions and individual
personal injury cases.
In its Oct. 2, 2019 Order, the MDL Panel found that the actions
share multiple factual issues concerning the development,
manufacture, labeling, and marketing of JUUL products, and the
alleged risks posed by use of those products. Centralization will
eliminate duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other pretrial
matters, and conserve judicial and party resources. The Panel
select the Northern District of California as the transferee
district. JLI is headquartered in that district, and it represents
that most of the key evidence and witnesses are located there.
Presiding Judge in the MDL is Hon. Judge William H. Orrick III. The
lead case is Case No. 3:19-md-02913-WHO.[BN]
The Plaintiff is represented by:
Kenneth Brian Moll, Esq.
MOLL LAW GROUP
22 W. Washington Street, 15th Floor
Chicago, IL 60602
Telephone: (312) 462-1700
Facsimile: (312) 756-0045
E-mail: kmoll@molllawgroup.com
- and -
Stephen Michael Cady, Esq.
MOLL LAW GROUP
22 W Washington Street, 15th Floor
Chicago, IL 60602
Telephone: (312) 462-1700
E-mail: scady@molllawgroup.com
The Defendants are represented by:
Lauren Michelle Loew, Esq.
FOLEY & LARDNER
321 North Clark Street, Suite 2800
Chicago, IL 60654
Telephone: (312) 832-5393
E-mail: lloew@foley.com
MDL 2913: R E v. JUUL Over Sale of E-Cigarettes Consolidated
------------------------------------------------------------
The class action lawsuit styled as R. E. individually and as parent
and legal guardian of her minor child; and P. K. E., on behalf of
themselves and on behalf of those similarly situated, Plaintiffs v.
JUUL LABS INC., ALTRIA GROUP INC., and Philip Morris USA, Inc.,
Defendants, Case No. 2:19-cv-00591 (Filed Aug. 13, 2019), was
transferred from the U.S. District Court for the Southern District
of West Virginia to the U.S. District Court for the Northern
District of California (San Francisco) on Oct 24, 2019.
The Northern District of California Court Clerk assigned Case No.
3:19-cv-06939-WHO to the proceeding.
The suit alleges violation of the Racketeer Influenced and Corrupt
Organizations Act.
The Defendants have engaged and continue to engage in unfair,
unlawful, and deceptive trade practices, the Plaintiff alleges. In
particular, the Defendants have knowingly developed, sold, and
promote a product that contained nicotine levels in excess of
cigarettes with the intention of creating and fostering long-term
addiction to JUUL products for minors to continue that addiction
into adulthood; selling a product that aggravates nicotine
addiction; creating advertising to target youth into using JUUL
e-cigarettes, and disseminating that advertising through
unregulated social media platforms commonly used by youth.
The Plaintiffs and class members reasonably relied to their
detriment on Defendants' unlawful conduct in that they purchased
JUUL not knowing the true propensity of its dangers. They have
sustained damages as a direct and proximate result of Defendants'
tortious conduct and seek injunctive relief to prohibit Defendants
from continuing to engage in the unfair and deceptive advertising
and marketing practices.
JUUL e-cigarettes and JUULpods deliver dangerous toxins and
carcinogens to users, especially teenage users. Nicotine itself is
a carcinogen, as well as a toxic chemical associated with
cardiovascular, reproductive, and immunosuppressive problems, the
lawsuit says.
The R.E. case is being consolidated with MDL 2913 in RE: JUUL LABS,
INC., MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY
LITIGATION. The MDL was created by Order of the United States
Judicial Panel on Multidistrict Litigation on Oct. 2, 2019. The
actions in this litigation involve allegations that JLI has
marketed its JUUL nicotine delivery products in a manner designed
to attract minors, that JLI's marketing misrepresents or omits that
JUUL products are more potent and addictive than cigarettes, that
JUUL products are defective and unreasonably dangerous due to their
attractiveness to minors, and that JLI promotes nicotine addiction.
The actions include both putative class actions and individual
personal injury cases.
In its Oct. 2, 2019 Order, the MDL Panel found that the actions
share multiple factual issues concerning the development,
manufacture, labeling, and marketing of JUUL products, and the
alleged risks posed by use of those products. Centralization will
eliminate duplicative discovery, the possibility of inconsistent
rulings on class certification, Daubert motions, and other pretrial
matters, and conserve judicial and party resources. The Panel
select the Northern District of California as the transferee
district. JLI is headquartered in that district, and it represents
that most of the key evidence and witnesses are located there.
Presiding Judge in the MDL is Hon. Judge William H. Orrick III. The
lead case is Case No. 3:19-md-02913-WHO.[BN]
The Plaintiffs are represented by:
Brett Justice Preston, Esq.
C. Benjamin Salango, Esq.
Dan R. Snuffer, Jr., Esq.
PRESTON & SALANGO
P. O. Box 3084
Charleston, WV 25331
Telephone: (304) 342-0512
Facsimile: (304) 342-0513
E-mail: brett@wvlawyer.com
bsalango@wvlawyer.com
dsnuffer@wvlawyer.com
- and -
Charles Edward Amos, II, Esq.
THE SEGAL LAW FIRM
810 Kanawha Blvd., East
Charleston, WV 25301
Telephone: (304) 344-9100
Facsimile: (304) 344-9105
E-mail: edward.amos@segal-law.com
- and -
Scott S. Segal, Esq.
THE SEGAL LAW FIRM
810 Kanawha Boulevard, East
Charleston, WV 25301
Telephone: (304) 344-9100
Facsimile: (304) 344-9105
E-mail: scott.segal@segal-law.com
Defendant JUUL Labs, Inc. is represented by:
Laurie K. Miller, Esq.
JACKSON KELLY
P. O. Box 553
Charleston, WV 25322-0553
Telephone: (304) 340-1000
Facsimile: (304) 340-1050
E-mail: lmiller@jacksonkelly.com
- and -
Thomas J. Hurney, Jr., Esq.
JACKSON KELLY
P. O. Box 553
Charleston, WV 25322-0553
Telephone: (304) 340-1000
Facsimile: (304) 340-1050
E-mail: thurney@jacksonkelly.com
MDL 5-02641: Ariz. Court Enters 2nd Suggestion of Remand & Transfer
-------------------------------------------------------------------
Senior District Judge David Campbell of the U.S. District Court for
the District of Arizona issued a Second Order remanding and
transferring the cases in the case captioned IN RE: Bard IVC
Filters Products Liability Litigation. Case No. MDL 5-02641-PHX-DGC
(D. Ariz.).
The Bard IVC Filters Products Liability Litigation is a
multidistrict litigation proceeding (MDL) that involves personal
injury cases brought against Defendants C. R. Bard, Inc. and Bard
Peripheral Vascular, Inc. (Bard). Bard manufactures and markets
medical devices, including inferior vena cava (IVC) filters. The
MDL Plaintiffs have received implants of Bard IVC filters and claim
they are defective and have caused Plaintiffs to suffer serious
injury or death.
The MDL was transferred to the Arizona District Court in August
2015 when 22 cases had been filed. More than 8,000 cases had been
filed when the MDL closed on May 31, 2019. Thousands of cases
pending in the MDL have settled in principle or are near
settlement. The remaining cases no longer benefit from centralized
proceedings.
On August 20, 2019, the Arizona District Court suggested the remand
of 35 cases that were transferred to the MDL by the United States
Judicial Panel for Multidistrict Litigation (Panel). The District
transferred more than 500 cases that were directly filed in the MDL
to appropriate districts.
In updated reports on the settlement status of cases, the parties
identify more than 300 cases that are no longer likely to settle.
An additional 100 cases that were recently served on Defendants are
also unlikely to settle. These cases are now subject to remand or
transfer, the District Court states.
A Schedule A exhibit contains a list of cases that should be
remanded to the transferor court pursuant to 28 U.S.C. Section
1407(a). The Arizona Court therefore provides a Suggestion of
Remand to the Panel.
A Schedule B exhibit contains a list of cases, which were directly
filed in the MDL, that will be transferred to appropriate districts
pursuant to 28 U.S.C. Section 1404(a). To assist the courts that
receive these cases, the Arizona Court describes events that have
taken place in the MDL.
Two cases listed in a Schedule C exhibit will be unconsolidated
from the MDL and will remain in the District of Arizona.
A full-text copy of the Arizona District Court's October 17, 2019
Order at https://tinyurl.com/y5g7lslj from Leagle.com
Bard IVC Filters Products Liability Litigation, Plaintiff,
represented by Kristine Lucille Gallardo - kgallardo@swlaw.com -
Snell & Wilmer LLP, Mark Stephen O'Connor -
moconnor@beusgilbert.com - Beus Gilbert McGroder PLLC, Ramon Rossi
Lopez - rlopez@lopezmchugh.com - Lopez McHugh LLP & Richard B.
North, Jr. , Nelson Mullins Riley & Scarborough LLC. Atlantic
Station, 201 17th Street NW, Suite 1700, Atlanta, GA 30363
Marina Corodemus, Special Master, represented pro se.
George Leus, Plaintiff, represented by Amanda Montee , Montee Law
Firm, James P. Cannon , Montee Law Firm, James Albert Montee ,
Montee Law Firm, 800 W 47th Street , Suite 525, Kansas City, MO
64112, Joseph R. Johnson , Babbitt & Johnson PA, 576 Sky Top Drive,
Ocoee, FL 34761& Ramon Rossi Lopez , Lopez McHugh LLP.
C R. Bard Incorporated, Defendant, represented by Aaron A. Clark ,
McGrath North Law Firm, First National Tower,Suite 3700, 1601
Dodge Street, Omaha, NE 68102, Alex Cameron Walker , Modrall
Sperling Roe hl Harris & Sisk PA, 500 4th Street NW, Suite 1000,
Albuquerque, NM 87102, Andrew J. Rosenzweig , Nelson Mullins Riley
& Scarborough LLC, 1320 Main Street, 17th Floor Columbia, SC 29201,
Andrew J. Trevelise , Reed Smith LLP, 2500 One Liberty Place1650
Market Street, Philadelphia, PA 19103, Angela M. Higgins -
higgins@bscr-law.com - Baker Sterchi Cowden & Rice LLC, Brandee J.
Kowalzyk , Nelson Mullins Riley & Scarborough LLC, 1320 Main
Street, 17th Floor Columbia, SC 29201,Catherine A. Faught Pollard
– Catherine.faught@quarles.com - Quarles & Brady LLP, Christopher
Brian Watt , Reed Smith LLP, Courtland Carter Chillingworth , Reed
Smith LLP, Daniel K. Winters , Reed Smith LLP, One Liberty
Place1650 Market Street, Philadelphia, PA 19103.
MEDCARE STAFFING: Progressive Sues Over Unsolicited Facsimile Ads
-----------------------------------------------------------------
PROGRESSIVE HEALTH AND REHAB CORP., an Ohio corporation,
individually and as the representative of a class of
similarly-situated persons, Plaintiff v. MEDCARE STAFFING, INC., a
Georgia corporation, Defendant, Case No. 2:19-cv-04710-ALM-KAJ
(S.D. Ohio., Oct. 24, 2019), alleges that the Defendant promotes
and markets its merchandise, in part, by sending unsolicited
advertisements by facsimile in violation of the Telephone Consumer
Protection Act.
The action seeks relief expressly authorized by the TCPA, including
award of statutory damages and injunctive relief enjoining the
Defendant, its employees, agents, representatives, contractors, and
affiliates, and all persons and entities acting in concert with
them, from sending unsolicited advertisements in violation of the
TCPA.
MedCare Staffing places physicians and advanced practitioners in
locum tenens, contract and permanent opportunities across the
U.S.[BN]
The Plaintiff is represented by:
Robert E. DeRose, Esq.
Jessica R. Doogan, Esq.
BARKAN MEIZLISH DEROSE WENTZ MCINERNEY PEIFER, LLP
250 E. Broad St., 10th Floor
Columbus, OH 43215
Telephone: 614-2221-4221
Facsimile: 614-744-2300
E-mail: bderose@barkanmeizlish.com
jdoogan@bardanmeizlish.com
- and -
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: 847-368-1500
Facsimile: 847-368-1501
E-mail: rkelly@andersonwanca.com
MEJIA VASQUEZ: Fails to Pay Minimum Wages to Servers, Cruz Says
---------------------------------------------------------------
Delmy Cruz, on her own behalf and others similarly situated v.
MEJIA VASQUEZ, INC., a Florida Corporation, d/b/a Salt & Pepper
Chef, and ROMEO MEJIA, an individual, jointly and severally, Case
No. 0:19-cv-62801-XXXX (S.D. Fla., Nov. 8, 2019), is brought
against the Defendants for failing to pay minimum wages to all
servers/waitpersons pursuant to the Fair Labor Standards Act and
the Florida Minimum Wages Act.
The Defendants orchestrated a common policy and practice of paying
its servers a flat daily rate of $25.00, which usually consisted of
a 7-hour work shift. In addition, the Defendants required their
servers to perform side work each week that was not incidental to
tip producing activities. Because servers' shifts were generally 7
hours, the effective hourly rate was $3.57 per hour. Tip credit
workers in Florida must be paid a cash wage of at least $5.44 per
hours. The Defendants violated the FLSA and FMWA by failing to pay
the Plaintiff and class members at least the full minimum wage for
all hours worked, says the complaint.
The Plaintiff worked for the Defendants as a server at its
restaurant between December 2018 and May 20, 2019.
The Defendants owned and operated a restaurant located in Pompano
Beach, Florida.[BN]
The Plaintiff is represented by:
Robert S. Norell, Esq.
ROBERT S. NORELL, P.A.
300 N.W 70th Avenue, Suite 305
Plantation, FL 33317
Phone: (954) 617-6017
Facsimile: (954) 617-6018
Email: rob@floridawagelaw.com
MICHAELS COMPANIES: Web Site Not Blind-Accessible, Matzura Says
---------------------------------------------------------------
STEVEN MATZURA, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS
SIMILARLY SITUATED, Plaintiff v. THE MICHAELS COMPANIES, INC.,
Defendant, Case No. 1:19-cv-09928 (S.D.N.Y., Oct. 25, 2019), arises
from the Defendant's failure to sell to consumers store gift cards
that contain writing in Braille so they will be fully accessible
and independently usable by the Plaintiff and other blind or
visually-impaired people.
The Defendant's denial of full and equal access to its store gift
cards, and therefore denial of its products and services offered
thereby and in conjunction with its physical locations, is a
violation of his rights under the Americans with Disabilities Act,
the Plaintiff contends. He asserts that because the Defendant's
store gift cards are not equally accessible to blind and
visually-impaired consumers, it violates the ADA.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
its store gift cards will become and remain accessible to blind and
visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person, who
requires Braille, which is a tactile writing system, to read
written material, including books, signs, store gift cards, credit
cards, etc.
Michaels Companies, Inc. is North America's largest specialty
provider of arts, crafts, framing, floral, wall decor, and seasonal
merchandise for makers and do-it-yourself home decorators. The
company owns and operates more than 1,200 stores in 49 states and
Canada under the brands Michaels and Pat Catan's.[BN]
The Plaintiff is represented by:
Zare Khorozian, Esq.
ZARE KHOROZIAN LAW LLC
1047 Anderson Avenue
Fort Lee, NJ 07024
Telephone: 201.957.7269
Facsimile: 201.224.9841
E-mail: zare@zkhorozianlaw.com
- and -
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: 212 228 9795
Facsimile: 212 982 6284
MIZUHO BANK: Dec. 19 Settlement Fairness Hearing Set
----------------------------------------------------
The actions entitled Laydon v. Mizuho Bank Ltd. et al., 12-cv-3419
(GBD) (S.D.N.Y.) and Sonterra Capital Master Fund, Ltd. et al. v.
UBS AG et al., 15-cv-5844 (GBD) (S.D.N.Y.), are pending in the
United States District Court for the Southern District of New
York.
Plaintiffs entered into a Settlement Agreement with The Bank of
Yokohama, Ltd. ("The Bank of Yokohama"), Shinkin Central Bank
("Shinkin"), The Shoko Chukin Bank, Ltd. ("Shoko Chukin"), Sumitomo
Mitsui Trust Bank, Limited and its predecessors ("Sumitomo"),1 and
Resona Bank, Ltd. ("Resona") on September 5, 2019.
Plaintiffs entered into a separate Settlement Agreement with Mizuho
Bank, Ltd., Mizuho Corporate Bank, Ltd.,2 and Mizuho Trust &
Banking Co., Ltd. (collectively, "Mizuho"), The Norinchukin Bank
("Norinchukin"), and Sumitomo Mitsui Banking Corporation ("SMBC")
on August 29, 2019.
IF YOU TRANSACTED IN EUROYEN-BASED DERIVATIVES BETWEEN JANUARY 1,
2006 THROUGH JUNE 30, 2011, INCLUSIVE, (THE "CLASS PERIOD"), YOU
MAY BE ENTITLED TO A PAYMENT FROM A CLASS ACTION SETTLEMENT. IF
YOU TIMELY SUBMITTED A VALID PROOF OF CLAIM AND RELEASE PURSUANT TO
THE CLASS NOTICE DATED JUNE 22, 2016, THE CLASS NOTICE DATED AUGUST
3, 2017, AMENDED SEPTEMBER 14, 2017, OR THE CLASS NOTICE DATED
MARCH 8, 2018, YOU DO NOT HAVE TO SUBMIT A NEW PROOF OF CLAIM AND
RELEASE TO PARTICIPATE IN THESE SETTLEMENTS WITH THE SETTLING
DEFENDANTS.
Important Dates and Deadlines
SUBMIT A PROOF OF CLAIM
Postmarked no later than March 3, 2020
EXCLUDE YOURSELF
Postmarked no later than November 14, 2019
OBJECT TO THE SETTLEMENT
Served on Class Counsel and Counsel for Settling Defendants no
later than November 19, 2019 and filed with the court no later than
November 19, 2019.
FAIRNESS HEARING
December 19, 2019 at 10:00 a.m.
United States District Court for the Southern District of New York,
Courtroom 11A.
Your Legal Rights Could Be Affected Whether You Act Or Do Not Act.
Please Read The Notice Carefully.
What is this case about?
Plaintiffs allege that each Defendant, from January 1, 2006 through
June 30, 2011, inclusive, manipulated or aided and abetted the
manipulation of Yen-LIBOR, Euroyen TIBOR, and the prices of
Euroyen-Based Derivatives. Defendants allegedly did so by using
several means of manipulation. For example, panel banks that made
the daily Yen-LIBOR and/or Euroyen TIBOR submissions to the British
Bankers' Association and Japanese Bankers' Association (the
"Contributor Bank Defendants"), such as the Settling Defendants,
allegedly falsely reported their cost of borrowing in order to
financially benefit their Euroyen-Based Derivatives positions.
Contributor Bank Defendants also allegedly requested that other
Contributor Bank Defendants make false Yen-LIBOR and Euroyen TIBOR
submissions on their behalf to benefit their Euroyen-Based
Derivatives positions and used inter-dealer brokers, intermediaries
between buyers and sellers in the money markets and derivatives
markets, to manipulate Yen-LIBOR, Euroyen TIBOR, and the prices of
Euroyen-Based Derivatives by disseminating false "Suggested
LIBORs," publishing false market rates on broker screens, and
publishing false bids and offers into the market.
Plaintiffs have asserted legal claims under various theories,
including federal antitrust law, the Commodity Exchange Act
("CEA"), the Racketeering Influenced and Corrupt Organizations
("RICO") Act, and common law.
The Settling Defendants have consistently and vigorously denied
Plaintiffs' allegations. Each Settling Defendant entered into a
Settlement Agreement with Plaintiffs, despite each believing that
it is not liable for the claims asserted against it, to avoid the
further expense, inconvenience, and distraction of burdensome and
protracted litigation, thereby putting this controversy to rest and
avoiding the risks inherent in complex litigation.
What is a Euroyen-Based Derivatives?
"Euroyen-Based Derivatives" means (i) a Euroyen TIBOR futures
contract on the Chicago Mercantile Exchange ("CME"); (ii) a Euroyen
TIBOR futures contract on the Tokyo Financial Exchange, Inc.
("TFX"), Singapore Exchange ("SGX"), or London International
Financial Futures and Options Exchange ("LIFFE") entered into by a
U.S. Person, or by a Person from or through a location within the
U.S.; (iii) a Japanese Yen currency futures contract on the CME;
(iv) a Yen-LIBOR and/or Euroyen TIBOR based interest rate swap
entered into by a U.S. Person, or by a Person from or through a
location within the U.S.; (v) an option on a Yen-LIBOR and/or
Euroyen TIBOR based interest rate swap ("swaption") entered into by
a U.S. Person, or by a Person from or through a location within the
U.S.; (vi) a Japanese Yen currency forward agreement entered into
by a U.S. Person, or by a Person from or through a location within
the U.S.; and/or (vii) a Yen-LIBOR and/or Euroyen TIBOR based
forward rate agreement entered into by a U.S. Person, or by a
Person from or through a location within the U.S.
The Rights of Class Members
If you are a member of the Class, you have the following options:
Submit a Proof of Claim
As a Settlement Class Member, you may be entitled to share in the
Net Settlement Fund if you submit a valid and timely Proof of Claim
demonstrating that you are an Authorized Claimant as set forth in
the Settlement Agreements. Proofs of Claim must be postmarked to
the Settlement Administrator (see address below) no later than
March 3, 2020.
An important aspect of the Settlement is that the Settling
Defendants are not entitled to any reversion. Thus, shares of
Settlement Class Members who fail to file a Proof of Claim will be
redistributed to Settlement Class Members who do file Proofs of
Claim and who do qualify for payment as described in the Plan of
Allocation. Settlement Class Members are encouraged to file Proofs
of Claim.
Any member of the Settlement Class who previously submitted a proof
of claim and release in connection with the 2016 Notice, 2017
Notice, or 2018 Notice will be subject to and bound by the releases
reflected in the Proof of Claim and Release form attached hereto.
Any member of the Settlement Class who did not submit a proof of
claim and release pursuant to 2016 Notice, 2017 Notice, or 2018
Notice, and who fails to submit a Proof of Claim and Release by the
dates in the manner specified, will be barred from receiving any
payment from the Net Settlement Funds (unless, by Order of the
Court, an untimely Proof of Claim and Release submitted by such
member of the Settlement Class is approved), but will in all other
respects be bound by the terms of the Settlement Agreements and by
the Final Judgment(s) entered on the Class' claims.
Exclude yourself from the Settlement
To exclude yourself from the Settlement Class for the Settlement
Agreements, you must submit a written request that clearly states:
(i) the name, address, and telephone number of the member of the
Settlement Class; (ii) a list of all trade names or business names
that the member of the Settlement Class requests to be excluded;
(iii) the name of the Laydon Action ("Laydon v. Mizuho Bank, Ltd.
et al., No. 12-cv-3419 (GBD) (S.D.N.Y.)"); (iv) a statement
certifying such person is a member of the Settlement Class; (v) a
description of the Euroyen-Based Derivatives transactions entered
into by the member of the Settlement Class that fall within the
Settlement Class definition (including, for each transaction, the
identity of the broker, the date of the transaction, the type
(including direction) of the transaction, the counterparty (if
any), the exchange on which the transaction occurred (if any), any
transaction identification numbers, the rate, and the notional
amount of the transaction); and (vi) a statement that "I/we hereby
request that I/we be excluded from the Settlement Class"; and (vii)
a statement specifying that such person is requesting exclusion
from the Settlement Class as it relates to one or both of the
Settlements. All written requests must be signed by the member of
the Settlement Class (or his, her, or its legally authorized
representative) and notarized, even if the member of the Settlement
Class is represented by counsel. Requests for exclusion from the
Settlement Class for the Settlement Agreements must be sent by U.S.
first class mail (preferably certified mail) (or, if sent from
outside the U.S., by a service that provides for guaranteed
delivery within five (5) or fewer calendar days of mailing) to the
Settlement Administrator (see address below). Requests for
exclusion must be postmarked no later than November 14, 2019.
If you exclude yourself from the Settlement Class for the
Settlement Agreements, you will not be bound by the Settlement
Agreements and can independently pursue claims you may have against
the Settling Defendants at your own expense. You may also enter an
appearance through an attorney if you so desire. However, if you
exclude yourself from the Settlement Agreements, you will not be
eligible to share in the Net Settlement Fund. In addition, if you
exclude yourself from the Settlement Class, you will not be
entitled to object to the Settlements or to appear at the Fairness
Hearing.
Object to the Settlement
Any objections to the proposed Settlement, Plan of Allocation, the
application for attorneys' fees and reimbursement of expenses or
any other matter must be served on Class Counsel and Counsel for
Settling Defendants in accordance with the instructions set forth
in the Notice no later than November 19, 2019 and also must be
filed with the Court no later than November 19, 2019.
The Court's Settlement Hearing
The Court has scheduled a Fairness Hearing for December 19, 2019 at
10 A.M. to be held at the United States Courthouse, 500 Pearl
Street, New York, New York, Courtroom 11A. At the Fairness Hearing,
the Court will determine, among other things, if the proposed
Settlements are fair, reasonable, and adequate. The Court will
also consider Class Counsel's request for attorneys' fees and
reimbursement of litigation expenses. In the event the Sonterra
Appeal is decided and the case is remanded to the Court, Class
Counsel will ask the Court to approve the Settlement in the
Sonterra Action as well, without further notice to members of the
Settlement Class.
The time and date of the Fairness Hearing may be continued from
time to time without further notice and you are advised to confirm
the time and location if you wish to attend; as soon as practicable
after any change in the scheduled date and time, such change will
be posted on this website.
Settlement Administrator:
Euroyen Settlement
c/o A.B. Data, Ltd.
PO Box 170500
Milwaukee, WI 53217
866-217-4453
info@euroyensettlement.com
Lead Counsel:
Vincent Briganti
Geoffrey M. Horn
Lowey Dannenberg, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
If you have questions, you may call the Euroyen Settlement Help
Line at866-217-4453, or email info@euroyensettlement.com.
1: Sumitomo Mitsui Trust Bank, Limited was formerly known, and was
sued as The Sumitomo Trust and Banking Co., Ltd. ("STB"). The Chuo
Mitsui Trust and Banking Company, Limited, which was also sued in
the Laydon action, merged into STB prior to the action to form
Sumitomo Mitsui Trust Bank, Limited.
2: On July 1, 2013, Mizuho Bank, Ltd. merged with Mizuho Corporate
Bank, Ltd. After the merger, Mizuho Corporate Bank, Ltd. was the
surviving entity and Mizuho Bank, Ltd. dissolved. The new entity
was renamed Mizuho Bank, Ltd.
MONDELEZ INT'L: Antitrust Suit over Wheat Prices Underway
---------------------------------------------------------
Mondelez International, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 30, 2019,
for the quarterly period ended September 30, 2019, that the
company, together with Kraft Foods Group, continues to defend a
lawsuit over alleged market manipulation of wheat prices.
On April 1, 2015, the U.S. Commodity Futures Trading Commission
("CFTC") filed a complaint against Kraft Foods Group and Mondelēz
Global LLC ("Mondelēz Global") in the U.S. District Court for the
Northern District of Illinois, Eastern Division following its
investigation of activities related to the trading of December 2011
wheat futures contracts that occurred prior to the spin-off of
Kraft Foods Group.
The complaint alleges that Kraft Foods Group and Mondelez Global
(1) manipulated or attempted to manipulate the wheat markets during
the fall of 2011; (2) violated position limit levels for wheat
futures and (3) engaged in non-competitive trades by trading both
sides of exchange-for-physical Chicago Board of Trade wheat
contracts.
The CFTC seeks civil monetary penalties of either triple the
monetary gain for each violation of the Commodity Exchange Act or
$1 million for each violation of Section 6(c)(1), 6(c)(3) or
9(a)(2) of the Act and $140,000 for each additional violation of
the Act, plus post-judgment interest; an order of permanent
injunction prohibiting Kraft Foods Group and Mondelez Global from
violating specified provisions of the Act; disgorgement of profits;
and costs and fees.
On August 15, 2019, the Court approved a settlement agreement
between the CFTC and Mondelēz Global. The terms of the settlement,
which are available in the Court's docket, had an immaterial impact
on the company's financial position, results of operations and cash
flows.
On October 23, 2019, following a ruling by the United States Court
of Appeals for the Seventh Circuit concerning post-settlement
activities, the Court vacated the settlement agreement and
reinstated all pending motions that the Court had previously mooted
as a result of the settlement.
The Court scheduled oral argument on these pending motions for
November 20, 2019, unless the parties renegotiate the settlement
agreement prior to this scheduled oral argument.
Additionally, several class action complaints were filed against
Kraft Foods Group and Mondelez Global in the U.S. District Court
for the Northern District of Illinois by investors in wheat futures
and options on behalf of themselves and others similarly situated.
The complaints make similar allegations as those made in the CFTC
action, and the plaintiffs are seeking class action certification;
monetary damages, interest and unjust enrichment; costs and fees;
and injunctive, declaratory and other unspecified relief. In June
2015, these suits were consolidated in the Northern District of
Illinois.
Mondelez said, "We are contesting the plaintiffs' request for class
certification. It is not possible to predict the outcome of these
matters; however, based on our Separation and Distribution
Agreement with Kraft Foods Group dated as of September 27, 2012, we
expect to bear any monetary penalties or other payments in
connection with the CFTC action. "
No further updates were provided in the Company's SEC report.
Mondelez International, Inc., through its subsidiaries,
manufactures and markets snack food and beverage products
worldwide. It offers biscuits, including cookies, crackers, and
salted snacks; chocolates; gums and candies; coffee and powdered
beverages; and cheese and grocery products. Mondelez International,
Inc. was founded in 2000 and is based in Deerfield, Illinois.
MOVING SOLUTIONS: Bid to Certify Middle Rider Action Sought
-----------------------------------------------------------
In the class action lawsuit styled as Gary Middle Rider, et al.,
the Plaintiffs, vs. Moving Solutions, Inc., et. Al, the Defendants,
Case No. 5:17-cv-04015-LHK (N.D. Cal.), the Parties ask the Court
to approve their third motion to certify class of:
"all current and former hourly, non-exempt employees who are
employed or have been employed by Defendants in the State of
California during the Class Period, except for administrative
office staff. Settlement Class Members do not include
Chartwell's employees who were not placed to work for Defendant
Moving Solutions, Inc. or Defendant Managed Facilities
Solutions, LLC".
The Plaintiffs allege that Defendants employed the Plaintiffs in
the office moving industry as non-exempt laborers. The Plaintiffs'
job duties included moving office equipment, wiring computers and
phones, installing office partitions, desks, chairs and other
office furniture. The Plaintiffs claim they regularly worked more
than eight hours in one day and forty hours in one week. The
Plaintiffs claim Defendants had them work unpaid off the clock
hours. For example the Plaintiffs assert Defendants ordered them to
arrive at the offices of their clients at approximately 4:30 p.m.,
and then wait for the office workers to leave at between 5:00 and
6:00 p.m. to begin moving and installing office furniture and
equipment, the lawsuit says.[CC]
Attorney for the Plaintiffs and Class are:
James Dal Bon, Esq.
LAW OFFICES OF JAMES DAL BON
606 North 1st Street
San Jose, CA 95112
Telephone: (408)472-5645
- and -
Victoria L. H. Booke, Esq.
LAW OFFICES OF BOOKE & AJLOUNY, LLP
606 North First Street
San Jose, CA 95112.
Telephone: (408) 286-7000
Attorneys for Chartwell Staffing Services, Inc., are:
Alexander Lawrence Conti, Esq.
CONTI LAW
23 Corporate Plaza Drive, Suite 150
Newport Beach, CA 92660
Telephone: (949) 791-8555
Attorneys for Moving Solutions are:
Richard D. Schramm, Esq.
EMPLOYMENT RIGHTS ATTORNEYS
1500 E Hamilton Ave.,
Campbell, CA 95008
Telephone (408) 796-7551
Attorneys for Managed Facilities LLC are:
Susan Bishop, Esq.
BERLINER COHEN
10 Almaden Blvd., 11th Floor
San Jose, CA 95113
Telephone: (408) 286-5800
MT ARTHUR COAL: Obtains Security for Costs vs. Litigation Funder
----------------------------------------------------------------
Moira Saville, Esq. -- moira.saville@au.kwm.com -- Jack Power,
Esq., and Harriet O'Hare, Esq., of King & Wood Mallesons, in an
article for Lexology, report that Mt Arthur Coal Pty Ltd (MAC) has
successfully obtained security for costs orders against the
litigation funder in the twin labour-hire class actions it is
currently defending. His Honour Justice Lee of the Federal Court
made orders on October 8, 2019 -- described as 'landmark' by
sections of the press -- requiring Augusta Ventures Limited (the
Funder) to furnish security for costs. The decision is significant
as it is the first time in Australia that a litigation funder has
been ordered to pay security for costs directly (as opposed to an
applicant providing the security, but the litigation funder footing
the bill). The precise form of security is to be determined at a
later hearing.
The Applicant alleges in the proceedings that two labour-hire firms
which supplied labour at the MAC mine, TESA and Chandler Macleod,
incorrectly classified certain employees as casual, rather than
permanent, and withheld employee entitlements in breach of the Fair
Work Act 2009 (Cth) (FW Act)
Proceedings of this type formed only 3.4% of class actions filed
between 1992 and 2018 in Australia. The last year, however, has
seen 11 class actions alleging breaches of the FW Act in the
Federal Court.[1] Four of these are funded by Augusta.
Orders requiring applicants to provide security for costs where
there is a commercial litigation funder behind the action have been
commonplace for many years.
Industrial class actions have apparently appealed to litigation
funders for a number of reasons, including because s570 of the FW
Act largely precludes adverse cost orders against an unsuccessful
party (which reduces the downside risk for a funder should it be
unsuccessful, since it will not need to indemnify the applicant for
that cost). Following Lee J's decision, however, commercial
litigation funders can no longer use s570 as a shield against
security or adverse costs orders.
The Court's Decision
As a starting point, Justice Lee noted that ordinarily there would
be no dispute about whether the Applicant would have to provide
security (as applicants typically are required to do so in funded
class actions). This case was different, however, given the FW Act
precludes (with limited exceptions) one party from recovering costs
from the other in proceedings alleging a breach of that
legislation.
Nonetheless, MAC argued that the Funder should be ordered to
provide security (in the amount of $1 million in each proceeding)
on the following basis:
It has generally been established under Australian law that the
Court can make a costs order against third parties, including
funders, where the applicant's claim fails; and it follows
logically that since the Court would have the power to make an
adverse costs order against the Funder, it should also have the
power to order the Funder to provide security for such costs.
Can funders be subject to an adverse costs' orders under the FW
Act?
Lee J ultimately declined to state definitively that funders would
be ordered to pay costs in every unsuccessful class action where
such an order against the applicant would be pointless or
prohibited by statute (such as under the FW Act). His Honour,
however, certainly acknowledged that such orders could be made.[2]
Further, his Honour found that there was nothing in the terms of
s570 of the FW Act that would otherwise restrict a Court's power to
make an adverse costs order directly against the funder of an
industrial class action. His Honour explained that this section is
intended to ensure that applicants who wish to bring a claim for
breach of that Act are not deterred by the prospect of facing a
prohibitive costs order should they be unsuccessful; but the
section is not intended to protect a third party funder who has a
purely commercial interest in the outcome of the litigation.
What is the source of the Court's power to order security for costs
against a funder?
Unlike in the United Kingdom, no statutory provision expressly
grants the Federal Court power to order a funder (or another third
party) to provide security for costs.[3] The Funder argued that the
Federal Court therefore has no such power. Justice Lee rejected
that argument.
His Honour reasoned that the Funder's argument was inconsistent
with the nature and history of s33ZF the Federal Court of Australia
Act 1976 (Cth) (FCA Act). That section bestows a broad power on the
Court, when managing representative proceedings, "to make any order
the Court thinks appropriate or necessary to ensure justice is
done…" Justice Lee considered that the Court's discretion under
this section should not be restricted without good cause, and there
was no persuasive reason why the powers of the Court under that
section should not extend to requiring third parties (including
funders) to provide security for costs.
Further Justice Lee did not rely just on the Court's powers under
s33ZF, but also found that the Court's implied powers enable it to
ward security against a non-party, including potentially a
litigation funder (the Court's implied powers being as are
incidental and necessary to the exercise of the Court's powers).
Should the Court exercise its discretion to grant security for
costs?
Having established that the Court has the power to require a funder
to provide security for costs, his Honour turned to two arguments
raised by the Funder against his exercising that discretion in this
case. Justice Lee was unpersuaded by both arguments.
The Funder argued that a security for costs order would be
inconsistent with the legislative intent underpinning s570 FW Act
-- that is, to institute a 'no costs' jurisdiction in order to
promote access to justice. Again, his Honour found this argument
was of little relevance to a funder that engaged in the proceedings
for their "commercial advantage".
The Funder also submitted that it would be unfair for the Court to
require it to provide security because no adverse costs order could
be made against MAC in the future given it was protected by s570 FW
Act (although, as discussed above, such an order could be made
against the Funder). His Honour was unsympathetic to this argument.
Justice Lee reasoned the Funder's commission could be adjusted to
account for cost of the security provided if a common fund order
were later made. As to future industrial class actions, the market
price of funding would adjust to account for this potential
expense.[4]
Justice Lee therefore found that it was appropriate to order to
provide security in this case.
Where to now?
Justice Lee's decision was not one against litigation funding per
se. Instead, his Honour concluded that litigation funders who
expect a commercial gain should be required to provide security
(where such security cannot be obtained from the applicant, or to
do so would be inappropriate).
It remains to be seen whether this decision in fact has the
'chilling effect' on industrial class actions predicted by some
commentators, or whether security just becomes part of the pricing
of funding. Providing security has not deterred funders from the
funding of other class actions. Not having to incur that expense,
however, would certainly have been one of the advantages that
litigation funders felt industrial class actions had over other
types of class actions.
As a result, it's hard not to see Justice Lee's decision at least
forcing litigation funders to be more selective when choosing which
industrial class actions they will fund, although it would not be
surprising if litigation funders still decide to proceed in some
cases.
It is also possible that we might see industrial class actions
conducted without a funder, perhaps on a no-win no-fee basis or
with some financial backing from the relevant union or the group
members themselves. [GN]
NCAA: Jones Sues Over Failure to Protect Student-Athletes' Health
-----------------------------------------------------------------
Lacurtis Jones v. THE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
Case No. 1:19-cv-07339 (S.D. Ind., Nov. 8, 2019), arises from the
Defendants' breach of duty resulting to the Plaintiff's and the
Class members' injuries.
No matter the popularity and profitability of any college sport,
player safety must come first. This is especially true of "amateur"
college football, which has over the past few decades rivaled the
NFL and other professional sports in popularity, and profitability.
Yet the Defendants sacrificed player safety--including the
Plaintiff's and the Class' long-term health and well-being--in
favor of profits and self-promotion, the Plaintiff contends.
The Defendants failed to meet their legal responsibility to
safeguard student-athletes, despite being aware that the NCAA and
its member conferences have a "legal obligation to use reasonable
care to protect athletes from foreseeable harm in any formal school
sponsored activity," says the complaint. The Defendants engaged in
a long-established pattern of negligence and inaction with respect
to concussions and concussion-related maladies sustained by its
student-athletes, all the while profiting immensely from those same
student-athletes.
The Plaintiff is a former NCAA athlete, who played football at
Baylor university between 1992 and 1991.
The NCAA is an unincorporated association that acts a the governing
body of college sports with its principal office located at
Indianapolis, Indiana.[BN]
The Plaintiff is represented by:
George Parker Young, Esq.
Vincent P. Circelli, Esq.
Kelli L. Walter, Esq.
CIRCELLI, WALTER & YOUNG, PLLC
Tindall Square Warehouse
500 E. 4th Street, Suite 250
Fort Worth, TX 76102
Phone: (817) 697-4942
Email: gpy@cwylaw.com
vinny@cwylaw.com
kelli@cwylaw.com
NISOURCE INC: Final Settlement Approval Hearing Set for February
----------------------------------------------------------------
NiSource Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that a final court
approval hearing in the Greater Lawrence Incident settlement has
been scheduled for February 27, 2020.
On September 13, 2018, a series of fires and explosions occurred in
Lawrence, Andover and North Andover, Massachusetts related to the
delivery of natural gas by Columbia of Massachusetts (the "Greater
Lawrence Incident"). The Greater Lawrence Incident resulted in one
fatality and a number of injuries, damaged multiple homes and
businesses, and caused the temporary evacuation of significant
portions of each municipality.
Various lawsuits, including several purported class action
lawsuits, have been filed by various affected residents or
businesses in Massachusetts state courts against the Company and/or
Columbia of Massachusetts in connection with the Greater Lawrence
Incident.
A special judge has been appointed to hear all pending and future
cases and the class actions have been consolidated into one class
action. On January 14, 2019, the special judge granted the parties'
joint motion to stay all cases until April 30, 2019 to allow
mediation, and the parties subsequently agreed to extend the stay
until July 25, 2019.
The class action lawsuits allege varying causes of action,
including those for strict liability for ultra-hazardous activity,
negligence, private nuisance, public nuisance, premises liability,
trespass, breach of warranty, breach of contract, failure to warn,
unjust enrichment, consumer protection act claims, negligent,
reckless and intentional infliction of emotional distress and gross
negligence, and seek actual compensatory damages, plus treble
damages, and punitive damages.
On July 26, 2019, the Company, Columbia of Massachusetts and
NiSource Corporate Services Company, a subsidiary of the Company,
entered into a term sheet with the class action plaintiffs under
which they agreed to settle the class action claims in connection
with the Greater Lawrence Incident.
Columbia of Massachusetts agreed to pay $143 million into a
settlement fund to compensate the settlement class and the
settlement class agreed to release Columbia of Massachusetts and
affiliates from all claims arising out of or related to the Greater
Lawrence Incident.
The following claims are not covered under the proposed settlement
because they are not part of the consolidated class action: (1)
physical bodily injury and wrongful death; (2) insurance
subrogation, whether equitable, contractual or otherwise; and (3)
claims arising out of appliances that are subject to the
Massachusetts Department of Public Utilities (DPU) orders.
Emotional distress and similar claims are covered under the
proposed settlement unless they are secondary to a physical bodily
injury.
The settlement class is defined under the term sheet as all persons
and businesses in the three municipalities of Lawrence, Andover and
North Andover, Massachusetts, subject to certain limited
exceptions. The motion for preliminary approval and the settlement
documents were filed on September 25, 2019. The preliminary
approval court hearing was held on October 7, 2019 and the court
issued an order granting preliminary approval of the settlement on
October 11, 2019.
The proposed settlement is subject to final court approval, and a
hearing is scheduled for February 27, 2020.
NiSource Inc., an energy holding company, operates as a regulated
natural gas and electric utility company in the United States. The
company operates in two segments, Gas Distribution Operations and
Electric Operations. NiSource Inc. was founded in 1912 and is
headquartered in Merrillville, Indiana.
NORTH CAROLINA: Faces Class Action Over Solitary Confinement Use
----------------------------------------------------------------
Nadia Ramlagan, writing for Public News Service, reports that four
plaintiffs and the ACLU of North Carolina have filed a class-action
lawsuit in a Wake County Superior Court against the state's use of
solitary confinement. The practice involves holding people in
isolation cells no larger than a parking space for 22-24 hours a
day.
Irena Como, acting legal director at the ACLU of North Carolina,
said the use of solitary confinement violates the state
constitution's ban on cruel or unusual punishment.
"We are asking that prison officials stop using solitary
confinement, and use it only as a last resort for the shortest
duration possible and when there is no other option," Como said.
The lawsuit documents how nonviolent transgressions in prison often
are penalized with solitary confinement. People can face nearly a
month in isolation for possessing a cell phone, lying to prison
staff or refusing a drug test.
Around 3,000 people currently are being held in some form of
solitary confinement in North Carolina.
Como said Rocky Dewalt, one of the plaintiffs in the case,
routinely experiences anxiety, depression, paranoia and suicidal
thoughts. He has been held in solitary for more than a decade. Como
said medical research suggests long-term isolation can profoundly
damage the brain.
"We know that solitary confinement creates and exacerbates mental
illness," she said. "It makes people sick, even when they are
exposed to solitary-confinement conditions for a very short amount
of time."
Como said she believes the use of solitary confinement makes it
even more difficult for imprisoned people to adjust to life after
release.
"There's growing consensus as well that solitary does not make us
safer. It does not rehabilitate people or prepare them to re-enter
society," she said.
A study published in October by the Journal of the American Medical
Association Network found that people released from North Carolina
prisons who had spent time in solitary confinement were 24% more
likely to die in the first year after their release -- especially
from suicide, but also from homicide and opioid overdose -- than
those who had been incarcerated but not held in solitary. The state
Department of Safety has not publicly commented on the case. [GN]
NORTH MIAMI: Lopez Seeks Overtime Pay for Healthcare Workers
------------------------------------------------------------
OLGA LOPEZ, Plaintiff v. NORTH MIAMI BEACH SURGICAL CENTER, LLC,
Defendant, Case No. 1:19-cv-24409-DLG (S.D. Fla, Oct. 25, 2019),
alleges that the Defendant unlawfully deprived the Plaintiff of
overtime compensation under the Fair Labor Standards Act during the
course of her employment.
Ms. Lopez also alleges that the Defendant further deprived her of
her rights pursuant to the Family Medical Leave Act. The action
seeks to recover all wages, equitable relief, front pay, and
declaratory relief owed to the Plaintiff arising from the course of
her employment.
The Defendant employs individuals like Plaintiff to provide nursing
and healthcare services to patients, including: helping patients
with bathing and dressing, turning/repositioning bedridden
patients, taking patients' temperatures, blood pressure and vital
signs, documenting patients' health issues and reporting the same
to nurses, feeding patients, cleaning patients' rooms and bed
linens, and dressing wounds, the lawsuit says.
The Defendant is an ambulatory out-patient surgical center that has
been operating in the state of Florida since at least 2002.[BN]
The Plaintiff is represented by:
Jordan Richards, Esq.
Melissa Scott, Esq.
USA EMPLOYMENT LAWYERS-
JORDAN RICHARDS, PLLC
805 E. Broward Blvd., Suite 301
Fort Lauderdale, FL 33301
E-mail: jordan@jordanrichardspllc.com
melissa@jordanrichardspllc.com
jake@jordanrichardspllc.com
jill@jordanrichardspllc.com
stephanie@jordanrichardspllc.com
NOVARTIS PHARMACEUTICALS: Sawyer Sues Over Unsolicited Fax Ads
--------------------------------------------------------------
WILLIAM P. SAWYER d/b/a SHARONVILLE FAMILY MEDICINE, individually
and as the representative of a class of similarly-situated persons,
Plaintiff v. NOVARTIS PHARMACEUTICALS CORPORATION and ALCON
LABORATORIES, INC., Defendants, Case No. 1:19-cv-00901-TSB (S.D.
Ohio, Oct. 24, 2019), alleges that Novartis violated the Telephone
Consumer Protection Act or Junk Fax Prevention Act.
On November 4, 2015, Sharonville Family Medicine received a
document on its fax machine that pertained to the treatment of
Acute Otitis Externa and Acute Otitis Media with Typanostomy Tubes
(the Acute Otitis Fax).
The Acute Otitis Fax invited persons to attend an "Educational
Dinner Event." The "Educational Dinner Event" referenced in the
Acute Otitis Fax was a promotional activity. The "Educational
Dinner Event" referenced in the Acute Otitis Fax was not
accredited.
Based on the Acute Otitis Fax itself, Novartis or Alcon authorized
a third-party vendor to send a document to the fax machine/fax
number of Sharonville on November 4, 2015, according to the
complaint. The Acute Otitis Fax was transmitted to other persons
via their respective fax numbers/fax machines. Alcon and/or
Novartis paid some or all of the expenses for the "Educational
Dinner Event" referenced in the Acute Otitis Fax.
The Plaintiff contends Alcon and/or Novartis did not obtain express
permission from Sharonville to send advertisements to Sharonville's
fax number/facsimile machine before November 4, 2015. The Plaintiff
asserts that Sharonville and the putative class members have
suffered actual damages and statutory damages under the TCPA due to
the sending of the Acute Otitis Fax to their fax machines/fax
numbers.
Dr. Sawyer is an individual, who resides in the State of Ohio.
Sharonville Family Medicine is a trade name registered in the State
of Ohio for a medical facility located in Sharonville, Ohio, that
is operated by Dr. Sawyer.
Novartis distributes pharmaceutical drugs. Ciprodex (TM) is a
pharmaceutical drug marketed as a treatment for both Acute Otitis
Externa and Acute Otitis Media with Typanostomy Tubes.[BN]
The Plaintiff is represented by:
George D. Jonson, Esq.
Matthew W. Stubbs, Esq.
MONTGOMERY JONSON, LLP
600 Vine Street, Suite 2650
Cincinnati, OH 45202
Telephone: (513) 241-4722
Facsimile: (513) 7689227
E-mail: gjonson@mojolaw.com
mstubbs@mojolaw.com
OREGON: Linn County Breach of Contract Class Action Ongoing
-----------------------------------------------------------
Alex Paul, writing for Albany Democrat-Herald, reports on the
timeline of a breach of contract class action complaint:
1930s to 1960s: The state of Oregon takes over the management of
thousands of acres of cut-over timberlands in 15 counties around
the state. Private landowners were turning the lands back to the
counties instead of paying taxes, as it would take decades before
replanted trees could be harvested and generate new income. Many of
the lands had also been damaged by wildfires. In turn, the state
agreed to take them over, replant them and share timber harvest
income with the affected counties based on the premise of "greatest
permanent value."
Over several decades, the state accumulates about 700,000 acres.
1998: After several public hearings, the Oregon Board of Forestry
adopts a definition of the term "greatest permanent value" to mean
"healthy, productive and sustainable forest ecosystems that over
time and across the landscape provide a full range of social,
economic and environmental benefits to the people of Oregon."
Those benefits include: production of forest products that generate
revenues for the benefit of the state, counties and local taxing
districts; wildlife habitat; productive soil and clean air and
water; flood and erosion protection; recreation.
Individuals and some county commissioners agree with the new
management plan. Others, like Linn County, do not.
1998-2016: Linn County and other counties such as Tillamook, try to
get the Board of Forestry to amend the new "greatest permanent
value" definition, because they say it does not keep timber income
at the top rung of the management plan, which means decreased
income for counties and taxing districts that do not receive
property taxes from the state lands located within their
boundaries. The counties charge that the new definition does not
live up to the decades-long contract between the state and
counties.
January 2016: Linn County commissioners announce plans to file a
$1.4 billion breach of contract lawsuit against the state of Oregon
and the Oregon Department of Forestry. The lawsuit becomes a class
action suit that includes 156 counties and taxing districts.
March 2016: The lawsuit is filed by Linn County, which is
represented by John DiLorenzo of the Portland law firm of Davis
Wright Tremaine. It includes $528,600,000 in actual damages and
$881,000,000 in potential future damages.
May 2016: The state of Oregon and several environmental groups
including the Wild Salmon Center, Pacific Rivers, the Association
of Northwest Steelheaders and Northwest Guides and the Northwest
Guides and Anglers Association file a motion to dismiss the
lawsuit.
July 2016: Linn County Circuit Court Judge Daniel Murphy rules that
no interveners would be allowed to join the suit, noting that the
petitioners may "hold passionate views about timber land management
including its impact on wildlife and other environmental concerns,
as do many others on both sides of the issue. Passionate concern
about something does not qualify an applicant for intervener
status."
July 2016: Attorney Scott Kaplan and others representing the state,
file motions to dismiss the case, to move it directly to the Oregon
Court of Appeals, and to deny a class action.
October 2016: Judge Murphy certifies the class action.
December 2016: The North Coast State Forest Coalition -- which
includes several environmental groups -- sends letters to taxing
districts that could be party of the class action, asking them to
not take part. The coalition noted that some of the counties had
previously supported the state's new timber management plan of a
"balanced mix of timber revenue, conservation and recreation."
January 13, 2017: Clatsop County, which has about 147,000 acres of
forest trust lands, becomes the first and only county to opt out of
the lawsuit and is followed by the Benton Soil and Water
Conservation District. In all, about 10 potential litigants choose
to not participate in the lawsuit. Judge Murphy gives districts a
Jan. 25 deadline to opt out of the lawsuit.
January 17, 2017: Benton County Commissioners hold a public hearing
as they consider whether the county will become a lawsuit class
member. Nearly 100 people attend and about 45 of them speak,
slightly more in favor than against lawsuit participation.
January 24, 2017: On a 2-1 vote, the Benton County commissioners
approve participating in the lawsuit. Commissioners Anne Schuster
and Xan Augerot vote to stay in the lawsuit and Commissioner
Annabelle Jaramillo votes to not participate.
January 25, 2017: The deadline to opt out of the class action
arrives. Opting out are the Benton Soil & Water Conservation
District, Clatsop County, Clatsop Community College, Clatsop County
Fair, 4-H and Extension Service District, Road District 1, the
Rural Law Enforcement District, the Port of Portland, the Clackamas
Soil & Water Conservation District and the Tualatin Valley Fire &
Rescue District.
April 20, 2017: The state files 27 motions, including that the
state forester and the Board of Forestry have a "wide latitude" in
managing the forest lands and that the greatest permanent value
rule, that forest management plans are valid and that the federal
Endangered Species Act and Clean Water Act pre-empt any statutory
requirement that the state maximize timber harvests for the benefit
of the class members.
June 9, 2017: Judge Murphy strikes down 12 of the state's motions,
specifically that even though the state can make and change rules
affecting timber harvesting, "that does not constitute a defense to
the consequential breach of contract assertion that allegedly
flowed from those rules" and even though the state may be bound by
federal environmental rules, that also does not protect the state
from a breach of contract allegation by the class.
June 26, 2017: Murphy rules that counties cannot sue the state for
monetary damages due to a centuries-old doctrine known as
"sovereign immunity." July 13, John DiLorenzo meets with Murphy in
conference and argues that it has long been state law that it is
permissible to "waive sovereign immunity on contracts entered into
by all state agencies." Three days later, Murphy withdraws his
decision.
August 2017: A group of 15 organizations ask the Benton County
commissioners to opt out of the lawsuit. The groups include the
Audubon Society of Corvallis, the Oregon Sierra Club, the League of
Women Voters of Corvallis, 350 Corvallis, the Benton Forest
Coalition, the Association of Northwest Steelheaders and Our
Revolution Corvallis Allies. They are told by county counsel that
the deadline to drop out of the class action had long passed.
January 2018: The state's motion for a summary judgment is denied.
January 2019: Presiding Judge Thomas McHill takes over hearing of
the lawsuit due to the retirement of Judge Murphy.
April 2019: Three state motions are denied. Judge McHill rules that
the class action will remain intact and that it will not be broken
up into 150-plus separate claims.
May 2019: Mediation to possibly resolve the class action breach of
contract lawsuit is scheduled for June. A settlement is not
reached.
September 2019: Judge McHill said the district court administrator
plans to send out more than 250 letters to potential jurors. About
80 are returned.
October 24, 2019: A three-week jury trial was scheduled to begin in
Linn County Circuit Court. [GN]
P&H 49 CORP: Peralta Seeks Minimum, OT Wages for Restaurant Staff
-----------------------------------------------------------------
MIGUEL ANGEL ROMANO PERALTA, JAZIEL MARTINEZ TEHUITZIL, JOSUE
MARTINEZ ROMANO, SILVESTRE CABRERA ROMANO, individually and on
behalf of others similarly situated, Plaintiffs v. P&H 49 CORP.
(D/B/A BAGELS ON THE SQUARE), HYUN PAK, and MARCOS VELAZQUEZ,
Defendants, Case No. 1:19-cv-09847 (Oct. 24, 2019), seeks to
recover unpaid minimum and overtime wages pursuant to the Fair
Labor Standards Act of 1938 and the New York Labor Law.
The Plaintiffs were formerly employed by the Defendants as delivery
workers. However, the Plaintiffs allege, they were required to
spend a considerable part of their work day performing non-tipped
duties, including preparing juices and fruit salads, bringing up
sodas and other drinks, accommodating the sodas, cleaning the
bathrooms, windows and refrigerators, cutting vegetables, sweeping
and mopping, throwing out the garbage, twisting and tying up
cardboard boxes, washing dishes and carrying down and stocking
deliveries in the basement (non-tipped duties).
The Plaintiffs assert that they worked for the Defendants in excess
of 40 hours per week, without appropriate minimum wage and overtime
compensation for the hours that they worked. Rather, the
Defendants failed to maintain accurate record-keeping of the hours
worked and failed to pay the Plaintiffs appropriately for any hours
worked, either at the straight rate of pay or for any additional
overtime premium, the lawsuit says.
The Defendants own, operate, or control a bagel restaurant/deli,
located at 7 Carmine St., in New York City, under the name "Bagels
on the Square".[BN]
The Plaintiffs are represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Faillace@employmentcompliance.coms
P.F. CHANG'S: Court Applies Kisor v. Wilkie in Class Action
-----------------------------------------------------------
Brent Owen, Esq. -- brent.owen@squirepb.com -- of Squire Patton
Boggs LLP, in an article for Mondaq, reports that the
administrative state responsible for implementing environmental,
health, and safety policy in the United States is in flux. A few
months ago in Kisor v. Wilkie the US Supreme Court upheld but
significantly narrowed Auer deference. Auer instructs that courts
must defer to an agency's construction of its own regulation unless
that interpretation is "plainly erroneous or inconsistent with the
regulation."
After Kisor though, lower courts reviewing an agency's
interpretation of its own regulations should only defer if there is
a genuine ambiguity, the regulatory guidance comes from the
appropriate source, and the rationale for the agency's
interpretation is not litigation driven. The Kisor Court also
instructed that interpretive issues that fall into a "judge's
bailiwick" are not entitled to deference. Judge Gorsuch concurring
in the judgment predicted that Kisor's guideposts would leave the
Auer doctrine "zombified." Two initial decisions applying Kisor
reflect Kisor's tension. Namely, while courts scrutinize agency
interpretations, Auer deference remains intact.
Court Rejects DOL's "Reinterpretation" of Longstanding "Dual Jobs"
Regulation
A federal judge in the Pennsylvania Eastern District Court recently
applied Kisor in the context of a class action lawsuit brought by
servers who worked at P.F. Chang's China Bistro. The servers argued
that the restaurant misclassified them as tipped-wage employees
($2.13/hour) because their "dual jobs" performing tipped and
not-tipped work entitled them to full minimum wage ($7.25/hour).
Under decades-old regulatory guidance interpreting the Dual Jobs
regulation, the servers could state a claim because they had worked
more than 20% of the time in non-tipped jobs.
The restaurant countered, however, that recent Department of Labor
("DOL") guidance "reinterpreting" the Dual Jobs regulation defeated
the servers' claims. The court rejected that argument, concluding
that the DOL's revised interpretation of the Dual Jobs regulation
should not receive Auer deference. The court explained that the
DOL's revised interpretation "contradicts itself" and contradicts
"the text of the Dual Jobs regulation" and thus was "unreasonable."
Applying another lesson from Kisor, the court also explained that
the revised regulation did not reflect the DOL's "fair and
considered judgment" because the DOL changed course without any
articulated reason or explanation. The court repeated Kisor's
instruction that "an agency's change in policy position will rarely
warrant Auer deference."
Because it rejected the DOL's reinterpretation of the Dual Jobs
regulation, the court allowed the servers' claims to proceed.
Court Affirms Deference to SEC's Interpretation of "Suspicious
Activity" Regulation
In a case from the Southern District of New York applying Kisor,
the SEC successfully received Auer deference for its interpretation
of "Rule 17a-8." That regulation requires broker-dealers to file
suspicious activity reports for any number of transactions that may
involve "illegal activity." The broker-dealer argued that the SEC's
interpretation of its own Suspicious Activity regulation was
"unreasonable" because it impermissibly expanded the regulation as
written. In an opinion issued before Kisor, the court rejected that
argument, repeating the then-settled rule that an agency's
interpretation of its own regulation should receive deference
unless it is "plainly erroneous or inconsistent with the
regulation." Applying that deference, the court reasoned that the
SEC's broad interpretation of the Suspicious Activity regulation as
advanced in its formal adjudication over the years was
"reasonable."
After Kisor, the broker-dealer asked the court to reconsider its
earlier deference. Despite its deferential earlier opinion, the
court declined to reverse its decision upholding the SEC's
interpretation. The court repeated Kisor's holding that "Auer
deference retains an important role in construing agency
regulations," and thus concluded that because Kisor affirmed Auer,
it would not reverse its earlier opinion. Most notably, the court's
analysis denying the motion to reconsider emphasized that its
earlier decision rested "principally" on the regulation's plain
text, and thus its earlier opinion squared with Kisor.
What Does this Mean for Agency Deference?
These early opinions applying Kisor provide two important
takeaways. First, Kisor's guideposts remain just that—limits on
Auer deference but not reason to think Auer is extinct. Second,
careful litigants hoping to defend agency action will frame their
arguments for Auer deference within the narrow considerations
emphasized by the opinion in Kisor.
Squire Patton Boggs will continue to monitor developments in this
area and provide updates. [GN]
PACIFIC THEATRES: Mendoza FCRA Suit Moved to C.D. California
------------------------------------------------------------
The class action lawsuit styled as Roberto A. Mendoza, individually
and on behalf of a class of other similarly situated individuals,
Plaintiff v. PACIFIC THEATRES ENTERTAINMENT CORPORATION and THE
DECURION CORPORATION, Defendants, Case No. 19STCV33044, was removed
from the Superior Court of California for the County of Los Angeles
to the U.S. District Court for the Central District of California
on Oct 24, 2019.
The Central District of California Court Clerk assigned Case No.
2:19-cv-09175 to the proceeding.
The suit alleges violation of the Fair Credit Reporting Act.
Pacific Theatres is an American chain of movie theaters in the Los
Angeles metropolitan area of California. Pacific Theatres is owned
by The Decurion Corporation which also owns ArcLight Cinemas.
The Plaintiff appears pro se.[BN]
The Defendants are represented by:
Timothy William Loose, Esq.
GIBSON DUNN AND CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071-3197
Telephone: (213) 229-7000
Facsimile: (213) 229-7520
E-mail: tloose@gibsondunn.com
PETMED EXPRESS: Awaits Court's Execution of Joint Proposed Decree
-----------------------------------------------------------------
PetMed Express, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that parties in the
case, Brian Fischler, individually and on behalf of all other
persons similarly situated v. PetMed Express, Inc.; Case No.
19-cv-02391, are awaiting the district court's execution of a joint
proposed consent decree.
In January 2019, a putative class action complaint was filed by a
different individual in the United States District Court for the
Southern District of New York alleging that the Company's website,
www.1800petmeds.com, does not comply with the ADA, NYSHRL, and
NYCHRL, and discriminates against visually impaired individuals.
The Plaintiff initially named a New York corporation named Pet Meds
Inc., which is not related or affiliated with the Company, as the
defendant. However, the Plaintiff sought to remedy that error by
requesting leave to file an amended complaint naming the Company,
which request the Court granted on April 9, 2019.
On April 18, 2019, the Court granted the Plaintiff's request to
transfer the case to the United States District Court for the
Eastern District of New York, where it is currently pending. The
matter is styled Brian Fischler, individually and on behalf of all
other persons similarly situated v. PetMed Express, Inc.; Case No.
19-cv-02391.
The Company denies any wrongdoing.
As of July 24, 2019, the Company and the Plaintiff have reached a
confidential settlement in which the Plaintiff and the Company will
enter into a consent decree requiring among other things, the
Company to modify its website to comply with certain accessibility
standards within the next 24 months, and the matter will be
dismissed with prejudice.
As part of the confidential settlement agreement, the Company will
pay the Plaintiff a sum of $10,000. The parties are awaiting the
district court's execution of the joint proposed consent decree,
the Company said in the regulatory filing.
* * *
On July 31, the Court approved a Joint Motion to Approve Consent
Judgment. Magistrate Judge James Orenstein held that, "In light of
the parties' consent decree, all previously scheduled conferences
before me are canceled."
PetMed Express, Inc. and its subsidiaries, doing business as
1-800-PetMeds, operates as a pet pharmacy in the United States. The
company markets prescription and non-prescription pet medications,
and other health products for dogs and cats directly to the
consumers. PetMed Express, Inc. was founded in 1996 and is
headquartered in Delray Beach, Florida.
PETMED EXPRESS: Reid ADA Suit Concluded Following $8,500 Deal
-------------------------------------------------------------
PetMed Express, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that a confidential
settlement has been reached in the case, Valentin Reid, on behalf
of himself and all others similarly situated v. PetMed Express,
Inc., Case No. 19-cv-4169, making a payment of $8,500 and the
matter has been concluded.
The Company was a defendant in a putative class action lawsuit,
filed in May 2019, in the United States District Court for the
Southern District of New York seeking injunctive and monetary
relief styled Valentin Reid, on behalf of himself and all others
similarly situated v. PetMed Express, Inc., Case No. 19-cv-4169,
alleging that the Company's website, www.1800petmeds.com, does not
comply with the Americans with Disabilities Act ("ADA"), New York
State Human Rights Law ("NYSHRL"), and New York City Human Rights
Law ("NYCHRL"), and discriminates against visually impaired
individuals.
The Company denies any wrongdoing.
On July 30, 2019, the Company and the Plaintiff reached a
confidential settlement in which the Plaintiff dismissed the matter
with prejudice in exchange for the Company making a payment of
$8,500 and the matter has concluded.
PetMed Express, Inc. and its subsidiaries, doing business as
1-800-PetMeds, operates as a pet pharmacy in the United States. The
company markets prescription and non-prescription pet medications,
and other health products for dogs and cats directly to the
consumers. PetMed Express, Inc. was founded in 1996 and is
headquartered in Delray Beach, Florida.
POWERCOR: Dec. 9 Hearing Set in Bushfire Class Action
-----------------------------------------------------
Andrew Thomson, writing for The Standard, reports that the Supreme
Court of Victoria has listed the settled Terang/Cobden bushfire
class action for a further hearing on the week starting December
9.
That listing will be to hear the application for approval of a
settlement in the proceeding between Powercor and lead plaintiff
Anthony Lenehan.
"At this hearing, any objections to the proposed settlement will
also be heard," the Supreme Court spokesman said.
The Supreme Court of Victoria earlier confirmed the Anthony Lenehan
v Powercor trial in Warrnambool about the Terang/Cobden bushfire on
St Patrick's Day last year has settled.
A spokesman said the hearing was adjourned to a further hearing (on
a date yet to be fixed) where an application will be made for the
approval of a settlement of the proceeding.
The proceeding was listed for a further directions hearing on Nov.
1 in Melbourne.
A Powercor spokeswoman said the proposed settlement, for those
involved in the class action, was subject to approval by the
Supreme Court.
She said the settlement was without admission of liability by
Powercor.
"We acknowledge these fires have been devastating for landowners
and the community," she said.
"We are pleased to have reached a settlement agreement for the
Terang fire with all parties," she said.
Warrnambool's Maddens Lawyers have not responded to calls for
comment.
A number of questions have been put to Maddens this morning
relating to an estimate of the total payout, Maddens' costs, the
payout of cents in the dollar of class action member losses and the
cents/dollar of losses after Maddens' costs are taken out of the
payout.
The Standard revealed on Nov. 3 that the settlement made by lawyers
for insurance companies, at no cost to their Terang/Cobden bushfire
victims prior to the trial, was for 82.5 cents in the dollar of
losses suffered.
It's expected that the class action member settlement cents/dollar
will be significantly less than 82.5 cents, with some experts
tipping less than half.
On Nov. 3, 2019, the Terang/Cobden bushfire Supreme Court class
action trial in Warrnambool has settled.
Details of the settlement are not yet available.
Maddens Lawyers, of Warrnambool, and barristers for Powercor will
have to return to court at a later date to confirm details of the
settlement, which will then be made public.
It's expected that the final figures will not be confirmed until
well into next year.
It can now be revealed that the settlement made by lawyers for
insurance companies, at no cost to their customers prior to the
trial, was for 82.5 cents in the dollar of losses suffered in the
fire.
It's expected that the class action member settlement cents/dollar
will be significantly less than 82.5 cents, after legal costs of
Maddens after subtracted from the settlement figure.
Calls have been made to Maddens Lawyers to provide comment.
Contact has also been made with the Supreme Court and Powercor to
comment.
Earlier, Powercor failed to look at its own data which could have
prevented a devastating fire, a barrister told a Warrnambool court
on Oct. 21.
Tim Tobin, SC, told the Supreme Court sitting in Warrnambool, that
the power company had information that would have alerted it to the
dangers of its assets sparking the St Patrick's Day fire at Terang
that raced towards Cobden but no one looked at the data.
During the opening address of a class action seeking compensation
for fire victims, Mr. Tobin said the conductors which clashed
sparking the blaze were too close. He claimed Powercor had
straightened a pole in 2007 to ensure the conductors were separated
but the same pole in a clay table drain had shifted, reducing the
gap.
He also claimed the conductors did not have enough clearance from
the ground -- in places they were more than one metre too short.
He said clashing conductors at pole No. 3 near the Terang
electrical substation led to molten metal falling to the ground and
sparking the blaze. The fire burnt 18 kilometres in a
south-easterly direction, torching 4000 hectares, 90 properties,
homes, sheds, fences and livestock.
Mr Tobin said the conductors should have been 900mm apart but were
only 210mm apart, a "grossly insufficient clearance" and if
Powercor complied with its own standard the fire would never have
started.
He said Powercor's own Light Detecting and Ranging Measurement data
showed there was a gross breach of regulations but the electricity
distributor did not instruct anyone to look at the data.
The company looked at data for 66kv lines but not 22kv lines.
"No one bothered to look at the 22kv lines," he said.
"Powercor never looked at the risk of clashing. It would have been
obvious to anyone looking at clearances."
Mr. Tobin said clashing conductors had been a major cause of
bushfires since the 1970s and Powercor admitted its assets caused
the Terang/Cobden bushfire.
He said on Black Saturday 2009 clashing conductors caused a
bushfire at Weerite, just 30 kilometres east of Terang.
Mr Tobin said that since the fire on St Patrick's Day, concrete had
been added to reinforce the pole and the crossarms had been
relocated.
Barrister Tim Margetts, QC, said there was no argument that
Powercor had a duty of care but the dispute was whether plaintiffs
had the right to claim damages.
He agreed Powercor had an obligation to inspect and maintain its
assets.
"In this trial we say that from a Powercor perspective, Powercor
has discharged that duty," he said.
Mr Margetts said the question was whether Powercor had discharged
its duty and exercised reasonable care.
He said there were risks in the supply of electricity that could
not be completely eliminated and not all potential risks could be
prevented or all risk removed.
Maddens Lawyers class action case still scheduled to start
The barrister said a management scheme had been put to and accepted
by Energy Safe Victoria.
Mr Margetts said clashing conductors on poles with such cross arms
were "exceptionally rare" and experienced linesmen had described it
as "unheard of".
"The court has to consider if the inspection and maintenance
practices introduced by Powercor discharge the duty of care," he
said.
The QC said the clash of conductors happened 2.5 metres from the
power pole, not at the pole. [GN]
PRESIDIO INC: Class Suits Challenge BC Partners Merger Deal
-----------------------------------------------------------
Presidio, Inc. said in its Form 8-K filing with the U.S. Securities
and Exchange Commission filed on October 29, 2019, that the company
has been named as a defendant in several class action suits related
to its merger with BC Partners.
On August 14, 2019, the company issued a press release announcing
that it had entered into an Agreement and Plan of Merger (as
amended on September 25, 2019, the "Merger Agreement") to sell
Presidio to BC Partners. Under the terms of the Merger Agreement,
each Presidio stockholder will receive $16.60 in cash for each
share of Presidio common stock they own (the "Merger
Consideration").
On September 10, 2019, the Company filed its Preliminary Proxy
Statement on Schedule 14A (the "Preliminary Proxy Statement"). On
September 26, 2019, a putative class action lawsuit was filed in
the United States District Court for the District of Delaware
against Presidio and the individual members of the Presidio Board
alleging that the defendants violated federal securities laws by
making allegedly false and misleading statements and failing to
disclose certain information in the Preliminary Proxy Statement.
On September 30, 2019, and October 4, 2019, two purported class
actions were filed in the United States District Court for the
Southern District of New York making similar allegations. On
October 7, 2019, the Company filed the Definitive Proxy Statement.
On October 10, 2019, and October 17, 2019, two purported class
actions were filed in the United States District Court for the
Northern District of California and the United States District
Court for the Eastern District of New York, respectively, against
Presidio and the individual members of the Presidio Board alleging
violations of the federal securities laws based on allegedly false
and misleading statements and failing to disclose certain
information in the Definitive Proxy Statement. These actions
sought, among other relief, to enjoin the Merger (or, in the
alternative, an award of rescissory damages in the event the Merger
is completed), and an award of costs and attorneys' fees.
On October 21, 2019, another putative class action complaint was
filed in the Court of Chancery of the State of Delaware against
Presidio, its directors, Parent and Merger Sub under the caption
Firefighters Pension System of City of Kansas City, Missouri Trust
v. Presidio, Inc. et al, C.A. No. 2019-0839-JTL.
The complaint alleges breaches of fiduciary duty by the directors
in connection with the negotiation of the Merger and the disclosure
made in the Definitive Proxy Statement and aiding and abetting of
those alleged breaches by Parent and Merger Sub.
The action seeks, among other relief, an injunction against the
Merger and the stockholder vote, and other damages. On October 23,
2019, the Court of Chancery scheduled a preliminary injunction
hearing for November 5, 2019.
The defendants believe that the actions are without merit, and that
no further disclosure is required under applicable law.
Nonetheless, to seek to avoid the risk of the litigation delaying
or adversely affecting the Merger, the Company has agreed to make a
supplemental disclosures (the "Amended and Supplemental
Disclosures").
A copy of the supplemental disclosure is available at
https://bit.ly/2ql19Jw.
Presidio, Inc. provides information technology services. The
Company offers enterprise-class solutions, including advanced
networking, data analytics and center modernization, hybrid and
multi-cloud, cyber risk management, and enterprise mobility, as
well as professional services, including strategy, consulting,
design, and implementation. The company is based in New York, New
York.
PRICESMART INC: Amended Complaint in PERA Class Suit Due Dec. 6
---------------------------------------------------------------
PriceSmart, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on October 30, 2019, for the
fiscal year ended August 31, 2019, that the Public Employees
Retirement Association of New Mexico (PERA) has until December 6,
2019, to file an amended complaint.
On May 22, 2019, a class action complaint was filed against
PriceSmart, Inc., as well as certain former and current officers in
the United States District Court for the Southern District of
California.
The Complaint alleges violations of Section 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, in connection with the Company's 2017 Form 10-K and
2018 Form 10-Qs.
On October 7, 2019, the Court granted Public Employees Retirement
Association of New Mexico's (PERA's) Motion for Appointment as Lead
Plaintiff.
PERA has until December 6, 2019, to file an amended complaint.
The Company intends to vigorously defend itself against any
obligations or liability to the plaintiffs with respect to such
claims. The Company believes the claims are without merit.
PriceSmart, Inc. owns and operates U.S. style membership shopping
warehouse clubs in Central America, the Caribbean, and Colombia.
PriceSmart, Inc. was founded in 1994 and is headquartered in San
Diego, California.
PRICESMART INC: PERA Appointed Lead Plaintiff in Securities Suit
----------------------------------------------------------------
The United States District Court for the Southern District of
California issued an Order granting Movant Public Employees
Retirement Association of New Mexico's (PERA) Motion for
Appointment as Lead Plaintiff in the case captioned MAX MORRIS
HARARI, individually and on behalf of all others similarly
situated, Plaintiff, v. PRICESMART, INC., JOSE LUIS LAPARTE, JOHN
M. HEFFNER, and MAARTEN O. JAGER, Defendants, Case No. 19-CV-958
JLS (LL), (S.D. Cal.).
Presently before the Court is Movant Public Employees Retirement
Association of New Mexico's (PERA) Motion for Appointment as Lead
Plaintiff and Approval of Choice of Counsel.
The present case is a putative securities class action that arises
from allegations of false and misleading statements in violation of
federal securities laws. Plaintiffs allege that, PriceSmart made
materially false and/or misleading statements, as well as failed to
disclose material adverse facts about the Company's business,
operations, and prospects. PriceSmart announced disappointing
financial results for 2018, the resignation of its CEO, and that
certain assets had been misidentified in prior financial
statements.
LEGAL STANDARDS
Motion to Appoint Lead Plaintiff
The Private Securities Litigation Reform Act (PSLRA) governs the
selection of a lead plaintiff in private securities class actions.
There is a three-step process in determining the lead plaintiff
under the PSLRA.
First, the plaintiff that is first to file an action governed by
the PSLRA must publicize the pendency of the action, the claims
made, and the purported class period in a widely circulated
national business-oriented publication or wire service.
Next, the court must select the presumptive lead plaintiff. To
determine the presumptive lead plaintiff, the district court must
compare the financial stakes of the various plaintiffs and
determine which one has the most to gain from the lawsuit.
Finally, plaintiffs in the class not selected as the presumptive
lead plaintiff may rebut the presumptive lead plaintiff's showing
that it satisfies Rule 23's typicality and adequacy requirements.
Motion to Appoint Lead Counsel
Under the PLSRA, the lead plaintiff is given the right, subject to
court approval, to select and retain counsel to represent the
class.
Motion to Appoint Lead Plaintiff
Notice
Plaintiff Harari filed this lawsuit. On that same day, Plaintiff
Harrari published notice of the class action in the Business Wire,
a national business-oriented publication, advising class members
of, among other things, the pendency of the action, the claims
made, the purported class period, and the right to file a motion
for appointment as lead plaintiff within sixty days.
Selection of Presumptive Lead Plaintiff
As noted above, the PSLRA provides that the most capable plaintiff
and hence the lead plaintiff is the one who has the greatest
financial stake in the outcome of the case, so long as that
plaintiff meets the requirements of Federal Rule of Civil Procedure
23.
Here, PERA alleges it acquired over $9 million in PriceSmart stock
during the class period and suffered financial losses of over $2.29
million. PERA's financial losses are uncontested and no other
plaintiff seeks appointment as lead counsel. The Court thus
concludes that PERA has the largest financial interest in this
matter.
Next, PERA has established that it satisfies the typicality and
adequacy requirements of Rule 23(a). Typicality requires that the
lead plaintiff's injuries be similar to those of other class
members and that those injuries arose out of the same course of
conduct as other class members.
Here, PERA, like all of the members of the proposed class, acquired
PriceSmart stock at prices artificially inflated by Defendants'
false and misleading misrepresentations and omissions and were
damaged" in doing so. PERA's claims therefore arise from the same
event or course of conduct giving rise to the claims of other class
members.
To demonstrate adequacy, PERA must show, first, that it does not
possess any conflicts of interest with the class members and,
second, that both plaintiff and its counsel will work to prosecute
the action vigorously' with respect to the entire class.
Here, PERA's interests are aligned with the members of the proposed
class and there is no evidence of any antagonism between PERA's
interests and those of the proposed class members. Moreover, PERA's
large financial stake and selection of a law firm highly
experienced in prosecuting securities class actions evidences a
commitment to prosecute the action vigorously on behalf of the
entire class.
PERA has established it satisfies the Rule 23(a) adequacy
requirement.
Having determined PERA has the largest financial stake in the case
and satisfies the requirements of Rule 23(a), the Court concludes
PERA is the presumptive lead plaintiff.
Motion to Appoint Lead Counsel
PERA requests that the Court approve its selection of Barrack,
Rodos & Bacine as lead counsel. The Court has reviewed the firm's
resume and is satisfied that PERA has made a reasonable choice of
counsel. Barrack, Rodos & Bacine has extensive experience in the
prosecution of securities class actions and it appears the firm
will adequately represent the interests of all class members.
Accordingly, the Court approves PERA's choice of counsel.
The Court GRANTS PERA's Motion for Appointment as Lead Plaintiff
and Approval of Choice of Counsel. The Court APPOINTS PERA as lead
Plaintiff and APPROVES PERA's selection of Barrack, Rodos & Bacine
as lead counsel.
A full-text copy of the District Court's October 7, 2019 Order is
available at https://tinyurl.com/y3jc3xs4 from Leagle.com.
Max Morris Harari, Individually and on Behalf of All Others
Similarly Situated, Plaintiff, represented by Lesley F. Portnoy -
LPORTNOY@GLANCYLAW.COM - Glancy Prongay & Murray LLP.
PriceSmart, Inc., Jose Luis Laparte, John M. Heffner & Maarten O.
Jager, Defendants, represented by Adam Sisitsky -
ALSisitsky@mintz.com - Mintz Levin Cohn Ferris Glovsky and Popeo,
P.C., Ellen Shapiro - EShapiro@mintz.com - Mintz Levin Cohn Ferris
Glovsky and Popeo PC, pro hac vice, Francis Earley -
FEarley@mintz.com - Mintz Levin Cohn Ferris Glovsky and Popeo PC,
Patrick E. McDonough - PEMcDonough@mintz.com - Mintz Levin Cohn
Ferris Glovsky and Popeo P.C., pro hac vice & Sean T. Prosser -
STProsser@mintz.com - Mintz Levin Cohn Ferris Glovsky and Popeo
PC.
Public Employees Retirement Association of New Mexico, Movant,
represented by Jeffrey Alan Barrack - jbarrack@barrack.com -
Barrack, Rodos & Bacine, pro hac vice, Samuel M. Ward -
sward@barrack.com - Barrack Rodos and Bacine & Stephen Richard
Basser - sbasser@barrack.com - Barrack Rodos and Bacine.
Dan Hartman, Movant, represented by Adam C. McCall -
amccall@zlk.com - Levi & Korsinsky, LLP.
The Pension Fund, Movant, represented by Danielle Suzanne Myers -
danim@rgrdlaw.com - Robbins Geller Rudman & Dowd LLP.
PUMA BIOTECHNOLOGY: January 28, 2020 Proof of Claim Deadline Set
----------------------------------------------------------------
In the case of HsingChing Hsu v. Puma Biotechnology, Inc., et al.,
No. 8:15-cv-00865, a two week trial began on January 15, 2019 in
the United States District Court for the Central District of
California, Southern Division. On February 4, 2019, the jury
returned a verdict.
The jury found that defendants Puma and Alan H. Auerbach violated
the federal securities laws by making false and misleading
statements about the efficacy of Puma's drug, neratinib, in a
clinical trial and that defendants did so in knowing violation of
sections 10(b) and 20(a) of the Securities Exchange Act of 1934. As
a result of this fraudulent conduct, the jury determined that
Puma's stock price was artificially inflated by $4.50 per share
between July 22, 2014 and May 13, 2015. You can find a copy of the
jury verdict, and more information about the trial and claims
process under Case Documents.
The jury verdict will result in the payment of damages, minus
certain deductions, to eligible Class Members who file a timely and
valid Proof of Claim form (submitted online or by mail) and whose
claims are approved. Class Members whose claims are approved will
be entitled to receive all of their damages, plus interest, less
their proportionate share of any fees and expenses awarded by the
Court.
TO RECOVER DAMAGES, YOU MUST SUBMIT A VALID PROOF OF CLAIM FORM NO
LATER THAN JANUARY 28, 2020. LATE FILED CLAIMS WILL ONLY BE
ACCEPTED WITH THE APPROVAL OF THE COURT.
If you have questions regarding how to complete the Proof of Claim
form or about the claims process, please email the Claims
Administrator at info@pumabiosecuritieslitigation.com or call
1-866-880-1572.
REGIONAL MANAGEMENT: Medina Seeks OT Wages for Non-Exempt Workers
-----------------------------------------------------------------
DAMITA MEDINA, on behalf of herself and all others similarly
situated, Plaintiff v. REGIONAL MANAGEMENT CORP., Defendant, Case
No. 2:19-cv-01564-LA (E.D. Wisc., Oct. 25 , 2019), seeks to recover
unpaid overtime compensation under the Fair Labor Standards Act on
behalf of the Plaintiff and all other similarly-situated current
and former hourly-paid, non-exempt employees of the Defendant.
Specifically, Ms. Medina contends, the Defendant operated (and
continues to operate) an unlawful compensation system that deprives
current and former hourly-paid, non-exempt employees of their wages
earned for all compensable work performed each workweek, including
at an overtime rate of pay for each hour worked in excess of 40
hours in a workweek, by failing to include all forms of
non-discretionary compensation, such as monetary bonuses,
commissions, incentives, awards, and/or other rewards and payments,
in all current and former hourly-paid, non-exempt employees'
regular rates of pay for overtime calculation purposes.
Regional Management Corp. is a diversified consumer finance company
that provides installment loan products primarily to customers with
limited access to consumer credit from banks, thrifts, credit card
companies, and other lenders. The Defendant owned, operated, and
managed over 350 branch locations in approximately 11 States across
the United States, including in the State of Alabama, Georgia,
Missouri, New Mexico, North Carolina, Oklahoma, South Carolina,
Tennessee, Texas, Virginia, and Wisconsin.[BN]
The Plaintiff is represented by:
Scott S. Luzi, Esq.
James A. Walcheske, Esq.
WALCHESKE & LUZI, LLC
15850 W. Bluemound Rd., Suite 304
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
SABRINA DAVIS: Brown Seeks to Certify Class of Inmates
------------------------------------------------------
In the class action lawsuit styled as Ade Brown, the Plaintiff, vs.
Sabrina Davis, et al., the Defendants, Case No.
1:18-cv-00812-PLM-PJG ECF (W.D. Mich.), the Plaintiff asks the
Court for an order appointing class counsel and certifying a class
of inmates.
The Plaintiff alleges Defendants' violation of the Unites States
Constitution. The violation includes Eighth Amendment claims of
deliberate indifference to prison condition that cause harm or risk
to health and safety.[CC]
The Plaintiff appears pro se.
SAIC INC: January 8, 2020 Settlement Fairness Hearing Set
---------------------------------------------------------
Robbins Geller Rudman & Dowd LLP issued a statement regarding the
SAIC, Inc. Securities Litigation:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re SAIC, INC. Securities Litigation
This Document Relates To:
ALL ACTIONS.
Master File No. 1:12-cv-01353-DAB
CLASS ACTION
SUMMARY NOTICE
TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED SAIC, INC.
("SAIC") COMMON STOCK BETWEEN MARCH 25, 2011 AND JUNE 2, 2011,
INCLUSIVE
YOU ARE HEREBY NOTIFIED that pursuant to an Order of the United
States District Court for the Southern District of New York, a
hearing will be held on January 8, 2020, at 10:30 a.m. ET, before
the Honorable Deborah A. Batts at the Daniel Patrick Moynihan U.S.
Courthouse, 500 Pearl Street, New York, NY 10007, for the purpose
of determining: (1) whether the proposed Settlement of the
Litigation for the sum of $6,500,000 in cash should be approved by
the Court as fair, reasonable, and adequate; (2) whether,
thereafter, this Litigation should be dismissed with prejudice
against Leidos, Inc. (formerly known as SAIC, Inc.) as set forth in
the Amended Stipulation of Settlement dated June 26, 2019; (3)
whether the Plan of Allocation of settlement proceeds is fair,
reasonable, and adequate and therefore should be approved; and (4)
the reasonableness of the application of Lead Counsel for the
payment of expenses incurred in connection with this Litigation,
together with interest thereon (which request may include a request
for reimbursement of Lead Plaintiffs' reasonable costs and expenses
pursuant to the Private Securities Litigation Reform Act of 1995).
The Court may adjourn or continue the Settlement Hearing without
further notice to the Class.
IF YOU PURCHASED OR OTHERWISE ACQUIRED SAIC COMMON STOCK BETWEEN
MARCH 25, 2011 AND JUNE 2, 2011, INCLUSIVE, YOUR RIGHTS MAY BE
AFFECTED BY THIS LITIGATION AND THE SETTLEMENT THEREOF. If you
have not received a detailed Notice of Proposed Settlement of Class
Action ("Notice") and a copy of the Proof of Claim and Release
form, you may obtain copies by writing to SAIC Securities
Litigation, Claims Administrator, c/o Gilardi & Co. LLC, P.O. Box
43311, Providence, RI 02940-3311 or by downloading this information
at www.SAICSecuritiesSettlement.com. If you are a Class Member, in
order to share in the distribution of the Net Settlement Fund, you
must submit a Proof of Claim and Release online at
www.SAICSecuritiesSettlement.com by February 14, 2020, or by mail
postmarked no later than February 14, 2020, establishing that you
are entitled to a recovery. You will be bound by any judgment
rendered in the Litigation unless you request to be excluded, in
writing, postmarked by December 16, 2019.
If you purchased or otherwise acquired SAIC common stock during the
Class Period and you desire to be excluded from the Class, you must
submit a request for exclusion such that it is postmarked no later
than December 16, 2019, in the manner and form explained in the
detailed Notice referred to above. All Members of the Class who do
not validly request exclusion from the Class will be bound by any
judgment entered in the Litigation pursuant to the Stipulation of
Settlement.
Any objection to any aspect of the Settlement must be filed with
the Clerk of the Court and also delivered by hand or first-class
mail to each of the following addresses such that it is received no
later than December 16, 2019:
Court:
CLERK OF THE COURT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Daniel Patrick Moynihan
U.S. Courthouse
500 Pearl Street
New York, NY 10007
Lead Counsel:
ROBBINS GELLER RUDMAN & DOWD LLP
Ellen Gusikoff Stewart
655 West Broadway, Suite 1900
San Diego, CA 92101
Leidos' Counsel:
GIBSON, DUNN & CRUTCHER LLP
Jason J. Mendro
1050 Connecticut Avenue, N.W.
Washington, DC 20036
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
DATED: September 26, 2019
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAMSUNG ELECTRONICS: Court Certifies Settlement Class in Bronson
----------------------------------------------------------------
In the class action lawsuit styled as ALEXIS BRONSON and CRYSTAL
HARDIN, on behalf of themselves and all others similarly situated,
the Plaintiffs, vs. SAMSUNG ELECTRONICS AMERICA, INC. et al., the
Defendants, Case No. 3:18-cv-02300-WHA (N.D. Cal.), the Hon. Judge
William Alsup entered an order on Nov. 1, 2019, for an order:
1. granting Plaintiffs' motion for class certification for
settlement purposes and denying as moot prior motion for
class certification for litigation purposes;
2. certifying a class of purposes of settlement:
"any resident of the State of California who owns a Samsung
plasma television model PN51F5500, PN51F5300, or PN51F5350
("Affected Models"), that exhibits a "line" issue that
requires a replacement plasma display panel assembly
("PDP")";
3. appointing Crystal Hardin as class representative; and
4. appointing Plaintiffs' counsel Paul Rothstein and Kyla
Alexander as class counsel.
5. preliminarily approving Parties' settlement agreement as
being fair, reasonable and adequate to the members of the
class, subject to further consideration at the final
approval hearing.
6. granting motion for preliminary approval of the settlement;
and
7. approving proposed forms of notice for the class.
The Court set the following schedules:
Nov. 4 -- The final short-form of notice which fixes the two
typos identified shall be filed on the docket.
Nov. 7 -- Counsel shall provide preliminary approval order, the
revised October settlement, and both forms of notice
to a third-party website that regularly provides
information to the public on class actions and class
action settlements.
Nov. 15 -- Consistent with the revised October settlement, the
long-form notice should be published on the
settlement website.
Dec. 16 -- The short-form notice should be published no later
than this date.
Dec. 19 -- The plaintiff shall file her motion for attorney's
fees and costs, which must also be published on the
settlement website.
Jan. 31 -- The deadline for filing objections to the
settlement.
Feb. 13 -- The parties shall respond to any objections to the
settlement
Feb. 27 -- The parties shall file a motion for final approval
of the class settlement. A hearing to consider
whether the class settlement should be given final
approval, and to consider plaintiff's motion for an
award of attorney's fees and costs.[CC]
SANOFI-AVENTIS: Colon Sues Over Concealment of Zantac Defect
------------------------------------------------------------
Carmen Colon, individually and on behalf of all others similarly
situated v. Sanofi-Aventis U.S. LLC, Sanofi US Services Inc.,
Chattem, Inc., and Boehringer Ingelheim Pharmaceuticals, Inc., Case
No. 3:19-cv-20023 (D.N.J., Nov. 9, 2019), seeks to recover economic
losses, statutory damages, and other available remedies as a result
of the Plaintiff's and the class members' purchase of Zantac, a
defective product that put them at risk for cancer.
Zantac is a heartburn medication that "is a clinically proven to
relieve heart burn in as little 30 minutes." On September 13, 2019,
the United States Food and Drug Administration issued a statement
alerting patients and medical professionals that Zantac "contains a
nitrosamine impurity called N-nitrosodimethylamine (NDMA). The
Defendants marketed Zantac as a safe medication for the treatments
of heartburn and did not inform the FDA or warn consumers on its
packaging or elsewhere that Zantac contains excessive levels of
NDMA, a potent carcinogen that has been linked to cancer in animals
and is listed a probable human carcinogen by the FDA.
The Plaintiff purchased Zantac and stopped taking Zantac after she
learned that Zantac exposed her to NDMA. The Defendants knowingly
concealed from the Plaintiff and Class members, as well as the FDA,
material facts and represented that Zantac was of a certain
standard and purity when it was not, deceiving the FDA, and
inducing the Plaintiff and Class members into purchasing Zantac and
paying more for Zantac than it was worth, says the complaint.
Ms. Colon used Zantac for 10 years to relive heartburn and related
gastrointestinal symptoms.
The Defendants manufactured and sold Zantac, an over-the-counter
medication.[BN]
The Plaintiff is represented by:
Jacob M. Polakoff, Esq.
Sahnon J. Carson, Esq.
Jeff Osterwise, Esq.
Amanda Trask, Esq.
BERGER & MONTAGUE, P.C.
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Phone: (215) 875-3000
Facsimile: (215) 875-4604
Email: jpolakoff@bm.net
scarson@bm.net
josterwise@bm.net
atrask@bm.net
- and -
E. Michelle Drake, Esq.
John G. Albanese, Esq.
BERGER MONTAGUE P.C.
43 SE Main Street, Suite 505
Minneapolis, MN 55414
Phone: (612) 594-5933
Fax: (612) 584-4470
Email: rpaul@bm.net
apark@bm.net
- and -
Joseph G. Sauder, Esq.
Matthew D. Schelkopf, Esq.
Lori G. Kier, Esq.
SAUDER SCHELKOPF LLC
555 Lancaster Avenue
Berwyn, PA 19312
Phone: (610) 200-0580
Facsimile: (610) 421-1326
Email: jds@sstriallawyers.com
mds@sstriallawyers.com
lgk@sstriallawyers.com
SCOTIABANK PUERTO: Ct. Enters Final Judgment Dismissing Maura Suit
------------------------------------------------------------------
In the case captioned YIRIES JOSEPH ASEF SAAD MAURA, et al.,
Plaintiffs, v. SCOTIABANK PUERTO RICO, et al., Defendants, Civil
No. 17-2263 (DRD). (D.P.R.), pending before the Court are the
following motions filed by plaintiffs: (a) Motion to Reconsider,
Alter or Amend Judgment at Docket No. 118 Pursuant to Rule 59(e) of
the Federal Rules of Civil Procedure; (b) Motion to Alter or Amend
Opinion and Order at Docket No. 215 and for Clarification of the
Record; (c) Motion for Leave to File Supplemental Allegations Under
FRBP 15(d) et al.; (d) Motion for Settlement Conference; (e) Urgent
Motion for Reconsideration of Opinion and Order at Docket No. 230
and Request for Leave to File Document in the Spanish Language; (f)
Plaintiffs' Motion to Reconsider, to Alter or Amend Omnibus Opinion
and Order at Docket No. 257 and Orders Issued at Docket Nos. 266,
267, 268, 269, 270, 272; and (g) Plaintiffs' Motion to Reconsider,
to Alter or Amend Amended Opinion and Order at Docket No. 288. All
motions were properly opposed to by the defendants.
Also pending before the Court is codefendant, United States of
America's Motion for Joinder and to Dismiss; and codefendant,
MidFirst Bank's Motion for Entry of Order Granting its Motion to
Dismiss.
The Court notes that on March 31, 2019, an Omnibus Opinion and
Order was entered wherein Motions to Dismiss filed by Codefendants
Banco Popular of Puerto Rico; James B. Nutter & Company and Federal
National Mortgage; Bayview Loan Servicing, LLC and Lakeview Loan
Servicing, LLC; and Roosevelt Cayman Asset Company and Rushmore
Loan Management Services were granted. For the sake of clarity, the
operative complaint is the Third Amended Complaint.
Thus, the Court deems necessary to clarify the scope of its Omnibus
Opinion and Order at Docket No. 257, which was subsequently made
applicable to other codefendants, for instance, (a) Federal Home
Loan Mortgage Corporation (hereinafter, "Freddie Mac"); (b) TRM LLC
jointly with RNPM, LLC; (c) Bank of America, N.A.; (d) MWPR CR,
LLC; (e) Wells Fargo & Co.; (f) Banco Cooperativo de Puerto Rico;
and (g) Lime Residential Ltd., Lime Properties, Ltd. and DLJ
Mortgage Capital, Inc.
It is further necessary to reiterate the Court's determination of
granting several motions for joinder to several motions to dismiss
as to several defendants before and after the entry of the Omnibus
Opinion and Order at Docket No. 265, such as, (a) Scotiabank de
Puerto Rico; (b) FirstBank Puerto Rico; (c) Oriental Bank; (d)
Banco Santander Puerto Rico; (e) MidFirst Bank; (f) Tax Free PR
Target Maturity Fund, Inc.; (g) CitiMortgage, Inc.; (h) REO PR
Corp., Roosevelt Cayman Asset Company II/Servicing Rushmore Loan
Management Services and Roosevelt REO PR IV Corp.; (i) PR Asset
Portfolio-1 International, LLC; (j) Santander Financial, Inc.
(d/b/a Island Finance Corp.); (k) Cooperativa de Ahorro y Credito
de Ciales; and (l) Bayview Loan Servicing, LLC, Lakeview Loan
Servicing LLC, and Wells Fargo & Company. As to the defendants
mentioned who effectively sought joinder to any motion to dismiss
that was granted, the Court finds that a DISMISSAL WITH PREJUDICE
is applicable in its entirety as to said Codefendant.
Additionally, the Court finds that any additional self-standing
motion to dismiss or seeking joinder to motion to dismiss is
equally GRANTED.
For reasons stated below, the United States District Court for the
District of Puerto Rico DENIES Plaintiffs' Motion to Alter or Amend
Opinion and Order at Docket No. 215 and for Clarification of the
Record; Plaintiffs' Motion to Reconsider, to Alter or Amend Omnibus
Opinion and Order at Docket No. 257 and Orders Issued at Docket
Nos. 266, 267, 268, 269, 270, 272; and Plaintiffs' Motion to
Reconsider, to Alter or Amend Amended Opinion and Order at Docket
No. 288. As all motions to dismiss and joinders thereof have been
granted, plaintiffs' Motion for Leave to File Supplemental
Allegations Under FRBP 15(d) et al. and Motion for Settlement
Conference are hereby DENIED as MOOT.
Lastly, the Court hereby DENIES plaintiffs' motions at Docket Nos.
122, 216, 226, 227, 234, 279 and 301. Further, the Court hereby
GRANTS defendants' motions at Docket Nos. 286 and 303.
Plaintiffs brought this class action suit on behalf of themselves
and Class Members who either have been subject to illegitimate
foreclosures or sought modifications of payment on their individual
mortgage loans through their mortgage servicers of Defendants.
Plaintiffs contacted Defendants in an attempt to reduce their loan
payments due to a reduction of job hours which affected their
payment capacity.
The Defendants allegedly explained to Plaintiffs that they would
submit Plaintiffs to a loss mitigation process which would make
Plaintiffs eligible to make reduced monthly payments during a
three-month trial period. Plaintiffs allege they complied with the
reduced payments but were still harassed by Defendants for
delinquency of their payments. Plaintiffs assert that their rights
under the Home Affordable Modification Program (HAMP) were not
acknowledged. The HAMP program provided a mechanism to stay any
foreclosure proceeding and help Plaintiffs fulfill the promise of
smaller loan payments. Plaintiffs thus claim that Defendants'
failure to honor the HAMP program provisions left them "financially
devastated."
All Plaintiffs are residents of Puerto Rico with real estate
property holdings in Puerto Rico. The unknown Plaintiffs, and the
Class Members which they represent, are likewise described in very
broad terms as any person who has real estate in Puerto Rico and
whose real estate is encumbered by a mortgage loan serviced by any
of the Defendants in the instant case. The Class Members also
include mortgagors who have complied with their obligations under
the loan modification programs and have not received any of the
benefits of the alleged modifications. Defendants, on the other
hand, are banks or mortgage loan servicers committed to providing
mortgage loans to qualified individuals in Puerto Rico. Unknown
Defendants, on the other hand, are considered any bank, financial
institution or mortgage loan servicers devoted to providing
mortgage loans to qualified individuals with offices, branches and
subsidiaries in Puerto Rico which can be liable for actions alleged
in the Complaint. The Plaintiffs alleged individual claims related
to mortgage loan transactions with one or more of the Defendants.
The Complaint, however, fails to specify which financial
institution, i.e. which Defendant, financed which loan and/or were
designated to provide services under federal laws, the Real Estate
Settlement Procedures Act ("RESPA"), Home Affordable Modification
Program ("HAMP"), Truth in Lending Act ("TILA"), and Home
Affordable Refinance Program ("HARP"). The Plaintiffs instead seem
to believe that their individual claims revolve around similar
issues and can be addressed under one Complaint. In sum, the Court
is unable to identify what loss, if any, each plaintiff suffered,
and which defendant caused said loss.
Standard of Review
As Federal Rule of Civil Procedure 8(a) requires plaintiffs to
provide a short and plain statement of the claim showing that the
pleader is entitled to relief. Under Bell Atlantic v. Twombly, 550
U.S. 544, 555 (2007), a plaintiff must provide the grounds of his
entitlement with more than labels and conclusions. Thus, a
plaintiff must, and is now required to present allegations that
nudge his claims across the line from conceivable to plausible in
order to comply with the requirements of Rule 8(a).
Plaintiffs failed to state any claim for which relief can be
granted
Banco Popular reiterates in its Motion to Dismiss that the First
Circuit has stated that a court will isolate and ignore statements
in the complaint that simply offer legal labels and conclusions or
merely rehash cause-of-action elements when analyzing the merits of
a Rule 12(b)(6) dismissal. A court should likewise ensure that
parties meet the pleading requirement standards set forth in Rule
8(a)(2).
Plaintiffs' Breach of Contract Claim Fails as a Matter of Law
Puerto Rico law states that the elements of a cause of action
required in a breach of contract suit are the following: 1) a valid
contract and 2) a breach by one of the contracting parties. Most
notably, in order for a nonperformance claim to prosper, a moving
party must establish the real and positive existence of the damages
caused.
In the Third Amended Complaint, Plaintiffs claim that Defendants
breached unspecified contracts because some unspecified Defendant
breached an implied term that required it to extend offers for
permanent modifications within a reasonable time period following
Plaintiffs' performance under the trial modification agreements.
Banco Popular claims that Plaintiff does not identify the contract
at issue or describe where it can be found, what it says, or how
Banco Popular or any other Defendant purportedly breached its
terms, let alone as to which Plaintiff such a breach was supposedly
committed. Plaintiffs contend that a Defendant did not perform in
accordance with the contract terms regarding the trial modification
period, and in fact, Defendant intentionally and systematically
delayed converting the trial modifications into permanent
modifications.
Banco Popular, however, states that the Third Amended Complaint
fails to specify which of the above-mentioned trial modification
contract provisions allegedly bind Banco Popular may be found in
the Third Amended Complaint. Likewise, Banco Popular also claims
that the Third Amended Complaint fails to state how Banco Popular
allegedly breached said contract. As such, Banco Popular contends
that these general and conclusory breaches of contract claims fail
to meet the pleading standard required by Twombly.
In their Response in Opposition to Motions to Dismiss, Plaintiffs
failed to address Banco Popular's claims, and failed to provide any
details as to how Banco Popular's actions could be construed as
breaches of contract.
The Court agrees with Banco Popular.
Plaintiffs' Dual Tracking Claim Fails as a Matter of Law
Plaintiffs assert that Defendants filed foreclosure actions against
them after Plaintiffs had submitted a complete loss mitigation
application to the Defendants, in alleged violation of 12 C.F.R.
Section 1024.41(f)(2).
Banco Popular states that no specific Plaintiff is alleged to have
submitted a loss mitigation application; no date is alleged for the
submission of any such application; no Defendant is alleged to have
received such an application and no facts are alleged concerning
any decision having been made on any such application.
In their Response in Opposition to Motions to Dismiss, Plaintiffs
failed to address Banco Popular's claims, and failed to provide any
details as to how Banco Popular's actions could be construed as
dual tracking violations.
The Court agrees with Banco Popular.
Plaintiffs' Robo Signing Claim Fails as a Matter of Law
Plaintiffs claim that Defendants purportedly used robosigners to
approve unspecified foreclosure documents in connection with
unspecified proceedings on unspecified dates and in connection with
unspecified loans. Nonetheless, Banco Popular avers that this is
immaterial because there is no such cause of action.
In their Response in Opposition to Motions to Dismiss, Plaintiffs
failed to address Banco Popular's arguments regarding the Robo
Signing claim.
The Court agrees with Banco Popular.
Plaintiffs' Predatory Lending Claim Fails as a Matter of Law
Banco Popular contends that Plaintiff's insufficiently plead its
claim that an unknown number of Plaintiffs appear to be asserting
that they obtained their loans from unspecified Defendants by
submitting misleading documentation that may have falsely
represented their income. Plaintiffs cite to support said claim the
Secure and Fair Enforcement of Mortgage Licensing Act of 2008 (SAFE
Act) and the Truth in Lending Act (TILA). Banco Popular argues that
the SAFE Act has no apparent connection to Plaintiffs' allegations
and does not contain a private right of action.
In their Response in Opposition to Motions to Dismiss, Plaintiffs
contend that the bank's failure to provide the required disclosure
resulted in 23 violations of TILA due to 23 items that must be
disclosed as required by aforementioned section and this constitute
material violations of TILA.
Furthermore, the claim that the material disclosures are those
defined in section 1026.23(a)(3) which includes the APR, the
finance charge, the amount financed, the total of payments, the
payment schedule, and the disclosures and limitations referred to
in section 1026.32(c) and (d) and 1026.43(g). They fail to address
any of the arguments raised by Banco Popular regarding the
Predatory Lending Claim. Additionally, they failed to identify any
specific TILA violation as relating to Banco Popular.
The Court agrees with Banco Popular.
Plaintiffs' RESPA Claim Fails as a Matter of Law
Plaintiffs assert that Defendants failed to respond to
communications that were purportedly qualified written requests
(QWRs) under 12 U.S.C. Section 2605(e), including not providing
Plaintiffs with information about the nature and costs of mortgage
debt. Banco Popular argues that information about the origination
of a mortgage loan, such as the nature and costs of the loan is not
covered by RESPA's QWR provision. Rather, QWRs only relate to
information about loan servicing. Thus, Banco Popular claims that
since there are no factual allegations that would give rise to a
claim under 12 U.S.C. Section 2605, and the only allegation they do
make clearly shows that the alleged communication was not a QWR,
this claim must be dismissed.
District and Circuit Courts have been resolute in stating that
general statements such as described herein do not suffice to
survive RESPA violation claims. Further, the Eleventh Circuit has
stated, in particular in cases related to loss mitigation
violations pursuant to Section 1024.41, as the Plaintiffs allege,
that RESPA recognizes two types of damages which are an essential
part of a RESPA claim: (1) actual damages the borrower sustained as
a result of the RESPA violation and (2) any additional damages, as
the court may allow, in the case of a pattern or practice of
noncompliance with the requirements of this section, in an amount
not to exceed $2,000. Lage v. Ocwen Loan Servicing LLC, 839 F.3d
1003, 1011 (11th Cir. 2016 (quoting 12 U.S.C. Section 2605(f)(1)).
In Lage, the Eleventh Circuit determined that "the Borrowers failed
to present evidence of a pattern or practice of RESPA noncompliance
that would support a claim for statutory damages. Here, as in Lage,
Plaintiffs failed to provide any evidence of either of these types
of damages they allegedly sustained because of Banco Popular's, or
any Defendants' for that matter, alleged RESPA violations.
In their Response in Opposition to Motions to Dismiss, Plaintiffs
failed to include any specific reference related to the RESPA
claims or respond to the argument put forth by Banco Popular
regarding the QWR.
The Court thus agrees with Banco Popular.
Plaintiffs' ECOA Claim fails as a Matter of Law
Plaintiffs assert generally that they completed loan modification
applications, and that those applications were applications for
credit. Banco Popular claims that Plaintiffs do not allege that any
particular Plaintiff completed a loan modification application, to
whom that application was made, or when it was supposedly made.
Neither do Plaintiffs allege when any of them received a response
to the alleged application. Plaintiffs simply conclusorily assert
that it was Defendants' practice or policy not to send timely
notice letters to consumers when it denied their applications and
that Defendants also failed to provide' unspecified statutory
disclosures', which are required by the ECOA.
In their Response in Opposition to Motions to Dismiss, Plaintiffs
failed to respond to the arguments raised by Banco Popular
regarding the ECOA claim.
The Court thus agrees with Banco Popular.
Remedies Claims are not Specifically Pled and Fail to State a Claim
for Relief
Plaintiffs, under the title of Remedies, name and define certain
laws and regulations, without specifically pointing to facts by
Defendants that violate said laws and regulations. These statutes
are: the Home Affordable Modification Program (HAMP) guidelines,
RESPA and Regulation X, the Home Affordable Refinance Program
(HARP), the Principal Residence Protection and Mandatory Mediation
in Foreclosure Proceedings Act (P.R. Law 184), the Mortgage Debtor
Assistance Act, Puerto Rico Law No. 169 of August 9, 2016 (P.R. Law
169), Negligence and Fault of Diligence under Puerto Rico Law, and
violation of the Constitution of Puerto Rico, Article 6, Section
14.
The pleading consists of identifying certain statutes without
identifying any conduct of any identified bank that violated them.
The First Circuit has found these types of pleadings as
insufficient to state a clam for relief. In their Response in
Opposition to Motions to Dismiss, Plaintiffs have utterly failed to
respond to the arguments expressed by Banco Popular regarding the
Remedies claims.
The Court thus agrees with Banco Popular's legal analysis. Hence,
Plaintiffs have failed to identify the relation between a
particular Plaintiff and a financial institution for purposes of
liability and damages.
For these reasons, the Court GRANTS all of Defendants' remaining
pending motions Docket Nos. 103, 121, 135 and 205. Plaintiffs'
Supplemental Motion for Supplemental Allegations and Motion for
Settlement Conference before Magistrate, filed at Docket Nos. 226
and 227, respectively are DENIED. Plaintiffs' Motions for
Reconsideration at Docket Nos. 122, 216 and 234 are DENIED and
hence, the motions filed at Docket Nos. 149 and 150, respectively
are GRANTED. As a result, the motions pending at Docket Nos. 241,
243, 244, 245, 246, 247, 248, 249, 250, 251, 252, and 255 are
hereby GRANTED. Also, the Plaintiffs' motions for reconsideration
at Docket Nos. 279 and 301 are hereby DENIED, and thus the motions
at Docket Nos. 285, 289, 290, 291, 292, 293, 297, 303, 305 and 329
are hereby GRANTED.
Accordingly, Final Judgment dismissing the Complaint WITH PREJUDICE
is to be entered forthwith as to all named Defendants, rules the
Court. All local claims are dismissed without prejudice as this
Court has dismissed all federal claims in the early stages of the
case after dismissing all other claims under Fed. R. Civ. P.
12(b)(6), or for lack of personal jurisdiction over the Defendants.
Hence, the Court exercised its discretion to dismiss the local
claims without prejudice.
A full-text copy of the District Court's September 30, 2019 Opinion
and Order is available at https://tinyurl.com/yxeva7v8 from
Leagle.com.
Yiries Joseph Asef Saad Maura, William Lopez-Colon, Nancy
Colon-Berrios, Conjugal Partnership Lopez-Colon, Gilberto
Gonzalez-Velez, All Others In Similar Situation, Plaintiffs,
represented by Maximiliano Trujillo-Gonzalez – maxtruj@gmail.com
-Maximiliano L. Trujillo Law Office, Vanessa Saxton-Arroyo & Joseph
Gierbolini , Juris Zone Law Offices P.S.C., G11 Calle O’Neill,
San Juan, PR 00926.
MidFirst Bank, Defendant, represented by Caitlin Kasmar -
ckasmar@buckleyfirm.com - Buckley LLP & Juan B. Soto-Balbas ,
Mercado, Soto, Ronda, Amundaray & Pascual, PSC, Cim Torre I Ste 210
Guaynabo, PR 00902.
PR Asset Porfolio 2013-1 International LLC, Roosevelt REO PR IV
Corp., Roosevelt REO PR Corp., Tax-Free PR Target Marity Fund,
Inc., Roosevelt Cayman Asset Company, Roosevelt Cayman Asset
Company II, Santander Financial Services, Rushmore Loan Management
Services & Banco Santander de Puerto Rico, Defendants, represented
by Ricardo J. Casellas-Santana- ricardo.casellas@oneillborges.com -
O'Neill & Borges & Alejandro Garcia-Carballo -
alejandro.garcia@oneillborges.com - O'Neill & Borges, LLC.
MWPR Cr LLC, Defendant, represented by Francisco J.
Fernandez-Chiques , Fernandez Chiques LLC, 653 Ponce de Leon Avenue
Second Floor San Juan, PR 00907.
Coop de Ahorro y Credito de Ciales, Defendant, represented by
Edgardo J. Hernandez-Oharriz , Hernandez-Oharriz & Santiago Law
Firm, PSC, Centro Internacional de Mercadeo, 100 PR-165, Suite 612,
Guaynabo, PR 00968.
SEDGWICK COUNTY, KS: Court Dismisses Taylor RICO Suit
-----------------------------------------------------
The United States District Court for the District of Kansas issued
a Memorandum and Order granting Defendants' Motions to Dismiss in
the case captioned ROBBY TAYLOR, Plaintiff, v. SEDGWICK COUNTY
BOARD OF COMMISSIONERS, et al., Defendants, Case No.
18-2674-DDC-JPO, (D. Kan.).
This lawsuit arises from plaintiff and defendant Slater's Sedgwick
County, Kansas child support case. Plaintiff's factual
allegations are hard to follow. But, generally, plaintiff claims
that Sedgwick County judges and government partners have obstructed
recusal and appeal in an interstate child support case for the
purpose of preventing plaintiff and his attorney's further
racketeering complaints to federal agents.
Plaintiff brings this lawsuit against three sets of defendants: (1)
Chief District Judge James Fleetwood (in his official and
individual capacities), District Judge Jeff Dewey (in his official
capacity), District Judge Seth Rundle (in his official and
individual capacities), Court Trustee Carl Wheeler, (in his
official capacity), and District Court Clerk Bernie Lumbreras (in
her official capacity) ("the Sedgwick County, Kansas defendants");
(2) the Board of County Commissioners of Sedgwick County ("the
Sedgwick County BOCC") and Sedgwick County Sheriff Jeff Easter (in
his official capacity); and (3) plaintiff's ex-wife, Melinda
Slater.
Plaintiff alleges the following against all defendants: a general
claim under 42 U.S.C. Sections 1983 and 1988 (Count I), a Section
1983 First Amendment claim (Count II), a Section 1983 Equal
Protection claim (Count III) and a Racketeer Influenced and Corrupt
Organization Act (RICO) claim under 18 U.S.C. Section 1962 (Count
IV). Plaintiff also brings an abuse of process claim against Ms.
Slater (Count V).
The Sedgwick County, Kansas defendants filed a Motion to Dismiss
under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Defendants Sedgwick
County BOCC and Sheriff Easter filed a Motion to Dismiss under Rule
12(b)(6), or alternatively a Motion for More Definite Statement
under Rule 12(e). Defendant Slater also filed a Motion to Dismiss
under Rule 12(b)(6), or alternatively a Motion for More Definite
Statement under Rule 12(e). Plaintiff has filed a Response. All
defendants have filed Replies. For reasons explained below, the
court grants defendants' motions.
Legal Standards
Rule 12(b)(1) standard
Generally, a motion to dismiss for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) takes one of two forms:
a facial attack or a factual attack. First, a facial attack on the
complaint's allegations as to subject matter jurisdiction questions
the sufficiency of the complaint. In reviewing a facial attack on
the complaint, a district court must accept the allegations in the
complaint as true.
Second, a party may go beyond allegations contained in the
complaint and challenge the facts upon which subject matter
jurisdiction depends. When reviewing a factual attack on subject
matter jurisdiction, a district court may not presume the
truthfulness of the complaint's factual allegations.
Rule 12(b)(6) standard
On a motion to dismiss for failure to state a claim, the court
accepts all facts pleaded by the non-moving party as true and draws
any reasonable inferences in favor of the non-moving party. To
survive a motion to dismiss [under Rule 12(b)(6)], a complaint must
contain sufficient factual matter, accepted as true, to `state a
claim to relief that is plausible on its face. A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.
All defendants ask the court to dismiss plaintiff's Complaint. They
provide several reasons supporting their dismissal request. The
court addresses each reason, in turn, below.
Plaintiff's Requests for Declaratory Relief
The Sedgwick County, Kansas defendants argue that plaintiff's
requests for declaratory relief fail as a matter of law. Plaintiff
labels some of his requests for relief as seeking declaratory
relief.
But all of plaintiff's demands are requests for injunctive relief.
A declaratory judgment declares the rights and other legal
relations of any interested party seeking such declaration.
Here, none of plaintiff's requests for relief seek a declaration of
rights. Instead, each request for declaratory relief asks the court
to order defendants to initiate some kind of action for the most
part, actions in plaintiff's underlying child support proceedings.
Even if plaintiff truly was seeking declaratory relief, state
officials are immune from suit in their official capacities for
retrospective declaratory relief because the Eleventh Amendment
bars such claims.
Here, the declaratory relief that plaintiff seeks asks this court
to order defendants to perform various actions including actions in
plaintiff's child support proceedings. For these reasons and to the
extent plaintiff raises any plausible claims for declaratory relief
the court declines to exercise jurisdiction over them.
Eleventh Amendment Immunity
Plaintiff sues all the Sedgwick County, Kansas defendants in their
official capacities. The Sedgwick County, Kansas defendants argue
that the Eleventh Amendment bars plaintiff's official capacity
claims against them seeking money damages. The court agrees. The
court thus dismisses plaintiff's official capacity claims seeking
money damages against the Sedgwick County, Kansas defendants as
barred under the Eleventh Amendment.
Judicial Immunity
The Sedgwick County, Kansas defendants next argue that judicial
immunity bars plaintiff's individual capacity claims against them.
Plaintiff sues just Judges Fleetwood and Rundle in their individual
capacities.
Judicial officers are explicitly immunized not only against damages
but also against suits for injunctive relief under 42 U.S.C.
Section 1983.
Both factors mandate the conclusion that Judges Fleetwood and
Rundle were performing judicial acts when they engaged in the
conduct allegedly violating plaintiff's rights. Plaintiff complains
Sedgwick County judges obstructed legal remedy, denied plaintiff's
request for judicial reassignment, threatened plaintiff's attorney
with contempt, denied plaintiff hearings and continuances,
interfered with plaintiff's choice of attorney, and refused
recusal. Plaintiff thus fails to allege that Judges Fleetwood and
Rundle acted in the complete absence of all jurisdiction. Also,
plaintiff's disagreement with judicial actions does not justify
depriving that judge of his immunity. Judicial immunity thus
immunizes the individual capacity claims against Judges Fleetwood
and Rundle.
For all the reasons above, the Sedgwick County, Kansas defendants
enjoy judicial immunity. And they are immune from suit under 42
U.S.C. Section 1983, as well as RICO. The court thus dismisses
plaintiff's individual capacity claims against the Sedgwick County,
Kansas defendants.
Defendants Sedgwick County BOCC and Sheriff Easter's Failure to
State a Claim Arguments
Defendants Sedgwick County BOCC and Sheriff Easter argue that
plaintiff has failed to state plausible Section 1983 and RICO
claims (Counts I-IV) against them. Thus, they ask the court to
dismiss plaintiff's claims against them under Fed. R. Civ. P.
12(b)(6).
For reasons explained below, the court agrees.
Plaintiff fails to state any plausible Section 1983 claims against
Sedgwick County BOCC and Sheriff Easter.
Section 1983 imposes civil liability on one who, under color of any
statute, ordinance, regulation, custom, usage, of any State or
Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws.
To state a claim under Section 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.
Count I references abuses of power but never alleges a precise
constitutional violation. Plaintiff just alleges that Sedgwick
County BOCC knowingly permits its buildings, facilities,
infrastructure, personnel, and revenue to be used for the
impermissible generation of income for government entities and
associated private persons.
The Complaint never alleges the specific constitutional or
statutory violation that injured plaintiff's rights except for
vague and conclusory allegations that Sheriff Easter has deprived
plaintiff of legal rights, privileges or immunities by knowingly
permitting law enforcement services and personnel of the Sedgwick
County Sheriff's Office to acquiesce in collusive deprivation of
plaintiff's substantive due process rights. Plaintiff's mere
conclusory allegations fail to state a plausible claim for relief.
The court thus dismisses Count I (42 U.S.C. Section 1983 Violation)
against Sheriff Easter.
Count II (First Amendment retaliation) and Count III (Equal
Protection violation) against the Sedgwick County BOCC and Sheriff
Easter fail for similar reasons. Count II generally alleges
plaintiff has been obstructed from legal redress and remedy for
grievance against a racially-biased and/or retaliatory judge. Count
III alleges "retaliatory obstruction in the form of contempt
findings and implied threat of physical force for the fundamental
exercise of fundamental First Amendment rights. But plaintiff
alleges no facts about how the Sedgwick County BOCC or Sheriff
Easter violated plaintiff's First Amendment or Equal Protection
rights.
The court thus dismisses plaintiff's Section 1983 claims in Count
II (First Amendment) and Count III (Equal Protection) against
defendants Sedgwick County BOCC and Sheriff Easter.
Plaintiff's 18 U.S.C. Section 1962 (RICO) claim fails to state a
claim against Sedgwick County BOCC and Sheriff Easter
Count IV brings a claim under 18 U.S.C. Section 1962 (RICO).
Plaintiff vaguely alleges a pattern of racketeering activity having
a relationship with an enterprise which is involved in interstate
commerce. While plaintiff neglects to specify the precise theory
his RICO claim means to assert, the court construes this allegation
as a cause of action under 18 U.S.C. Section 1962(c). It provides:
It shall be unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly
or indirectly, in the conduct of such enterprise's affairs through
a pattern of racketeering activity or collection of unlawful debt.
Plaintiff's conclusory allegations under this provision fail to
state a claim.
To state a RICO claim, a plaintiff must set forth `four elements:
(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity. A pattern of racketeering activity must
include commission of at least two predicate acts.
Plaintiff never alleges a specific crime or other predicate act to
support a RICO claim. Instead, the Complaint just generally alleges
retaliatory obstruction and racketeering in plaintiff's Sedgwick
County child support case. Without at least two predicate acts, no
plausible RICO claim exists. Also, plaintiff never identifies a
pattern and makes only a passing reference to an enterprise. Thus,
plaintiff's allegations fail to support a plausible RICO claim.
And, the court dismisses plaintiff's RICO claim (Count IV) against
the Sedgwick County BOCC and Sheriff Easter.
Failure to State a Claim Against Defendant Melinda Slater
Plaintiff also asserts Section 1983, RICO, and an abuse of process
claims against defendant Slater plaintiff's ex-wife. All of the
actions attributed to Ms. Slater in plaintiff's Complaint are
actions taken in the divorced couple's child support proceedings.
Ms. Slater moves to dismiss all claims under Fed. R. Civ. P.
12(b)(6) for failing to state a claim for relief.
Section 1983 Claims (Counts I-III)
To support plaintiff's Section 1983 claim, the Complaint makes
conclusory allegations that defendant Slater acted in collusion
with state actors to deprive plaintiff of
constitutionally-protected legal rights, privileges or immunities.
But plaintiff provides zero facts to support these allegations.
Also, plaintiff never alleges a precise constitutional violation
that Ms. Slater purportedly committed. The Complaint alleges no
facts that, if proved as true, could support a fairly attributable
to the state finding.
The court thus dismisses plaintiff's Section 1983 claims (Counts
I-III) asserted against Ms. Slater.
RICO Claim (Count IV)
Plaintiff's RICO claim (Count IV) fails to state a claim against
Ms. Slater for the same reasons it fails to state a claim against
defendant Sedgwick County BOCC and Sheriff Easter. Plaintiff makes
conclusory allegations about retaliatory obstruction and
racketeering in plaintiff's Sedgwick County child support case. But
he never alleges a specific crime (or predicate act) to support a
RICO claim. Also, he never identifies a pattern and makes only a
passing reference to an enterprise. This kind of sound-bite
pleading can't withstand a motion to dismiss under Rule 12(b)(6).
Plaintiff fails to state a plausible RICO claim against Ms. Slater,
and the court thus dismisses that claim.
Abuse of Process (Count V)
Finally, plaintiff brings an abuse of process claim against Ms.
Slater. Plaintiff alleges that defendant Slater has engaged in a
pattern of initiating, encouraging and enforcing illegal, improper
and/or unauthorized legal proceedings to obstruct plaintiff's
substantive due process rights and deprive him and their mutual
children of their civil liberties. To state a claim for abuse of
process under Kansas law, a plaintiff must allege knowingly illegal
or improper use of the process done for the purpose of harassing or
causing hardship, which resulted in damage to the state court
plaintiff.
Here, plaintiff just makes conclusory allegations of abuse of
process. And, the court questions whether these conclusory
assertions suffice to nudge plaintiff's abuse of process claim over
the line to assert a plausible claim. But the court need to not
decide that issue. Instead, exercising its discretion, the court
declines to exercise supplemental jurisdiction over the state law
abuse of process claim because it is the only remaining claim in
this lawsuit now that the court has dismissed all of plaintiff's
federal claims.
Because all the factors favor remand and no circumstance presents a
compelling reason to the contrary, the court declines to exercise
supplemental jurisdiction over plaintiff's remaining state law
claim for abuse of process.
In sum, the Court dismisses Plaintiff's claims for these reasons:
* To the extent plaintiff raises any plausible claims for
declaratory relief, the court declines to exercise jurisdiction
over them. Thus, the court dismisses any purported claims for
declaratory relief without prejudice.
* The court dismisses plaintiff's claims for injunctive relief
without prejudice because the Younger abstention doctrine,
Rooker-Feldman doctrine, and the domestic relations exception
preclude the court from exercising jurisdiction over plaintiff's
claims for injunctive relief.
* The court dismisses plaintiff's claims for money damages for the
following reasons:
-- Eleventh Amendment immunity bars plaintiff's official
capacity claims against the Sedgwick County, Kansas defendants. So,
the court dismisses plaintiff's official capacity claims against
the Sedgwick County, Kansas defendants without prejudice.
-- Judicial immunity bars plaintiff's individual capacity claims
against the Sedgwick County, Kansas defendants. So, the court
dismisses the individual capacity claims against the Sedgwick
County, Kansas defendants with prejudice.
-- Plaintiff fails to state plausible Section 1983 and RICO
claims against defendants Sedgwick County BOCC, Sheriff Jeff
Easter, and Melinda Slater. So, the court dismisses the Section
1983 and RICO claims against defendants Sedgwick County BOCC,
Sheriff Jeff Easter, and Melinda Slater with prejudice.
-- And the court declines to exercise supplemental jurisdiction
over plaintiff's claim against defendant Melinda Slater for abuse
of process under Kansas law. So, the court dismisses the Kansas
abuse of process claim against defendant Melinda Slater without
prejudice.
This case is dismissed, rules the Court.
A full-text copy of the District Court's September 30, 2019
Memorandum and Order is available at https://tinyurl.com/y3knslsa
from Leagle.com.
Robby Taylor, Plaintiff, represented by Shayla C. Johnston,
Excellence Legal, LLC, 234 S Topeka St, Wichita, KS, 67202-4308.
Sedgwick County Board of Commissioners & Jeff Easter, In official
capacity as Sedgwick County Sheriff, Defendants, represented by
David W. Steed, Klenda Austerman LLC, 1600 Epic Center, 301 North
Main Street, Wichita, KS 67202-4816.
James Fleetwood, In official and personal capacity as Kansas
Eighteenth Judicial District Chief Administrative Judge, Jeff
Dewey, In official capacity as Kansas Eighteenth Judicial District
Presiding Family Law Judge, Seth Rundle, In official and personal
capacity as Kansas Eighteenth Judicial District Judge, Carl
Wheeler, In official capacity as Sedgwick County Court Trustee &
Bernie Lumbreras, In official capacity as Kansas Eighteenth
Judicial District Court Clerk, Defendants, represented by Stephen
O. Phillips, Office of Attorney General.
Melinda Slater, Defendant, represented by Michael P. Whalen , Law
Office of Michael P. Whalen,
229 E William St Ste 300, Wichita, KS, 67202.
SOUTHERN POWER: Interlocutory Appeal Filed in MCERS Initiated Suit
------------------------------------------------------------------
Southern Power Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the defendants in
the class action suit initiated by Monroe County Employees'
Retirement System has filed a petition for interlocutory appeal of
the class certification order with the U.S. Court of Appeals for
the Eleventh Circuit.
In January 2017, a securities class action complaint was filed
against Southern Company, certain of its officers, and certain
former Mississippi Power officers in the U.S. District Court for
the Northern District of Georgia by Monroe County Employees'
Retirement System on behalf of all persons who purchased shares of
Southern Company's common stock between April 25, 2012 and October
29, 2013.
The complaint alleges that Southern Company, certain of its
officers, and certain former Mississippi Power officers made
materially false and misleading statements regarding the Kemper
County energy facility in violation of certain provisions under the
Securities Exchange Act of 1934, as amended. The complaint seeks,
among other things, compensatory damages and litigation costs and
attorneys' fees.
In 2017, the plaintiffs filed an amended complaint that provided
additional detail about their claims, increased the purported class
period by one day, and added certain other former Mississippi Power
officers as defendants. Also in 2017, the defendants filed a motion
to dismiss the plaintiffs' amended complaint with prejudice, to
which the plaintiffs filed an opposition.
In March 2018, the court issued an order granting, in part, the
defendants' motion to dismiss. The court dismissed certain claims
against certain officers of Southern Company and Mississippi Power
and dismissed the allegations related to a number of the statements
that plaintiffs challenged as being false or misleading.
In April 2018, the defendants filed a motion for reconsideration of
the court's order, seeking dismissal of the remaining claims in the
lawsuit. In August 2018, the court denied the motion for
reconsideration and denied a motion to certify the issue for
interlocutory appeal.
On August 22, 2019, the court certified the plaintiffs' proposed
class. On September 5, 2019, the defendants filed a petition for
interlocutory appeal of the class certification order with the U.S.
Court of Appeals for the Eleventh Circuit.
Southern Power Company, a public utility company, develops,
acquires, constructs, owns, and manages generation assets,
including renewable energy projects. The company was founded in
2001 and is based in Atlanta, Georgia. Southern Power Company is a
subsidiary of The Southern Company.
STEVENS TRANSPORT: Court Transfers Parr Action to N.D. Texas
------------------------------------------------------------
The United States District Court for the Northern District of
California issued an order denying Defendants' motion to dismiss
the case captioned JEREMY PARR, RONALD CASTLE, and JULIE VINES,
individually and on behalf of others similarly situated, and on
behalf of the general public, Plaintiffs, v. STEVENS TRANSPORT,
INC., STEVENS TRANSPORT TL, INC., STEVENS TRANSPORT CD, INC., and
DOES 1-10, inclusive, Defendants, Case No. C-19-02610-WHA. (N.D.
Cal.), and granting Defendants' motion to transfer venue.
This is a putative wage-and-hour class action brought by three
named plaintiffs, Jeremy Parr, Ronald Castle, and Julie Vines, on
behalf of nationwide truck drivers who performed work in
California, against Defendants Stevens Transport, Inc., Stevens
Transport CD, Inc., and Stevens Transport TL, Inc. Plaintiffs filed
this putative class action in the Northern District, alleging
violations of various California wage and labor laws.
Stevens Transport provides trucking services throughout the United
States. Stevens Transport, Inc. and Stevens Transport CD are motor
carriers who hire and employ truck drivers to haul and deliver
freight, while Stevens Transport TL brokers contracts between motor
carriers and shippers. All defendants are incorporated in Texas and
have their corporate headquarters in Dallas.
Plaintiff Parr resides in Missouri. Plaintiff Castle resides in
Arizona. Plaintiff Vines resides in Texas. No plaintiff resides in
California. Stevens Transport employed plaintiffs and all putative
class members as truck drivers to haul and deliver freight in the
48 contiguous states.
On May 14, 2019, plaintiffs filed this putative class action in the
Northern District of California, alleging violations of various
California wage and labor laws. Two months later, Defendants filed
a motion to dismiss for lack of personal jurisdiction, or in the
alternative, to transfer to the United States District Court for
the Northern District of Texas.
PERSONAL JURISDICTION
According to the Court, the California district court has specific,
personal jurisdiction over Stevens Transport, Inc., and Stevens
Transport CD. First, defendants established minimum contacts with
California when they adopted uniform employment and wage policies,
then sent their drivers into California to collect and deliver
freight, thus purposefully directing their activities at
California. Second, this wage-and-hour claim unquestionably arises
from those contacts as the plaintiffs are challenging the
application of defendants' wage-and-hour policies to their work
performed in California. Third, defendants have failed to show the
exercise of jurisdiction would be so unreasonable as to offend due
process.
SECTION 1404(A).
Stevens Transport moved to transfer this action to the Northern
District of Texas pursuant to 28 U.S.C. Section 1404(a). Because a
large number of witnesses live and work in Dallas and a greater
proportion of the putative class members live in Texas than in
California, this order finds transfer is proper, rule the Court.
Section 1404(a) states in pertinent 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. The parties agree that venue
would be proper in either district. Thus, defendants' motion only
presents the question of whether convenience and fairness favor
transfer.
Convenience and Fairness
The private convenience and fairness factors include the
convenience of parties and witnesses, the ability of the court to
compel witnesses, the ease of access to evidence, and the
plaintiff's choice of forum.
Here, the convenience of parties and witnesses favors transfer and
outweighs the minimal deference afforded to plaintiffs' choice in
forum.
The first factor, the convenience of parties and witnesses, favors
transfer to Texas because defendants, their witnesses, one named
plaintiff, and a significant number of putative class members all
reside in Texas. Plaintiffs' contention that these details
individually bear little weight is unpersuasive. Additionally,
defendants have identified eight specific corporate executives who
develop and oversee the policies underlying plaintiffs' claims for
relief, all of whom also reside in Texas.
The Court held that Texas appears to be more convenient for
plaintiffs. One of the three named plaintiffs lives in Texas and
none of them live in California. Texas is also home to
approximately one-third of the putative class, while California is
home to less than one percent. Although firm numbers do not exist
at this early stage, Stevens Transport offers a snapshot of the
putative class: In 2018, of the 4,424 truck drivers Stevens
Transport employed or contracted with, only seventeen were
California residents (.38%) while 1,526 were Texas residents.
Additionally, a substantial majority of the putative class members
reside outside of California while approximately one-third of them
live in Texas. Taken with the representative nature of this action,
plaintiffs' initial choice of forum is entitled to only minimal
deference.
Interest of Justice
A district court deciding a motion to transfer must also consider
public-interest factors such as relative degrees of court
congestion, local interest in deciding localized controversies, and
familiarity with governing law.
Here, the public-interest factors weigh only slightly against
transfer.
To start, Stevens Transport seeks judicial notice of three exhibits
under Rule 201(b)(2). Rule 201(b)(2) provides that the court may
judicially notice a fact that is not subject to reasonable dispute
because it can be accurately and readily determined from sources
whose accuracy cannot be reasonably questioned.
Here, the first exhibit requested has been made publicly available
by government entities through a website link. Neither party
disputes the authenticity of the website or the accuracy of the
information displayed by the document. Thus, the document, date,
and information contained therein as available to the recipient is
appropriate for judicial notice. To this limited extent, the
request for judicial notice of the first exhibit is GRANTED. As
this order does not rely on the other two exhibits, the request to
judicially notice those exhibits is DENIED AS MOOT.
Plaintiffs' best point is that this case presents an issue of
legitimate importance to California, namely the extent to which
out-of-state drivers can benefit from California's labor laws when
they drive through our state. California has an interest in making
sure its laws are observed for work done in California, even if it
is only a brief span in a long over-the-road haul.
And here, plaintiffs seek to represent two classes of drivers
solely for their work done in California. If this interest were
enough to overcome the other factors, then every nationwide
trucking company would find themselves in all fifty states
defending against similar lawsuits. While this district is more
familiar with California law, the excellent judges in Dallas can
apply California law, and can appreciate and vindicate California's
interest in the matter. What's more, if the case must resolve an
issue of California law, the decision may be appealed to the Fifth
Circuit which may then certify the question to the California
Supreme Court, just as our court of appeals can. Cal. Rules of
Court, Rule 8.548.
Viewing the totality of the factors, this order finds that this
case belongs in the Northern District of Texas. Although
plaintiffs' choice in forum still carries some weight, and
California does have an interest in this matter, defendants have
met their burden, rules the Court.
Thus, Defendants' motion to transfer the action pursuant to 28
U.S.C. Section 1404(a) is GRANTED.
The Clerk shall transfer this civil action to the United States
District Court for the Northern District of Texas and close the
file. The parties' stipulation to change the hearing date and
continue the case management conference is DENIED AS MOOT. With
respect to the motion to compel arbitration, only partially briefed
at this point, both sides shall please consult with the new
district judge in Dallas concerning its future, rules the Court.
A full-text copy of the District Court's October 7, 2019 Order is
available at https://tinyurl.com/y48ruguz from Leagle.com.
Jeremy Parr, individually and on behalf of others similarly
situated, and on behalf of the General Public, Plaintiff,
represented by Daniel S. Brome - dbrome@nka.com - Nichols Kaster,
LLP, Jason T. Brown , Brown, LLC, 111 Town Square Place, Suite 400,
Jersey City, NJ 07310, pro hac vice, Lotus Cannon , Brown, LLC, 111
Town Square Place, Suite 400, Jersey City, NJ 07310, pro hac vice,
Nicholas Raymond Conlon , Brown, LLC, 111 Town Square Place, Suite
400, Jersey City, NJ 07310, pro hac vice & Matthew C. Helland -
helland@nka.com - Nichols Kaster, LLP.
Ronald Castle & Julie Vines, Plaintiffs, represented by Matthew C.
Helland , Nichols Kaster, LLP.
Stevens Transport, Inc. & Stevens Transport CD, Inc., doing
business as Stevens Transport, Defendants, represented by Brian
Davis Berry - brian.berry@ogletreedeakins.com - Ogletree, Deakins,
Nash, Smoak & Stewart, P.C. & Jared Lee Palmer -
jared.palmer@ogletreedeakins.com - Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
Stevens Transport CO. Inc., Defendant, represented by Brian Davis
Berry , Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
SUPERIOR REAL ESTATE: Court Conditionally Certifies Class
---------------------------------------------------------
In the class action lawsuit styled as ALBERT RODRIGUEZ,
Individually and on Behalf of All Others Similarly Situated, the
PLAINTIFF, vs. SUPERIOR REAL ESTATE SOLUTIONS, LLC; ALVIN FRANKS,
JR., the DEFENDANTS, Case No. 4:19-cv-00405-DPM (E.D. Ark., Oct.
24, 2019), the Hon. Judge D .P. Marshall Jr. entered an order:
1. conditionally certifying a class of:
"all current and former construction laborers who work or
worked for Superior Real Estate Solutions, LLC, and Alvin
Franks Jr. and who were paid an hourly rate at any time
since June 11, 2016";
2. directing Superior and Franks to provide Plaintiff's counsel
(on an electronic spreadsheet) a list of names, addresses,
and e-mail addresses of group members;
3. approving with tweaks notice, proposed consent forms, email,
and reminder postcard; and
4. approving following schedule:
-- Superior and Franks produce spreadsheet on Nov. 8, 2019
-- Notice period opens Nov. 15, 2019
-- Opt-in period closes Feb. 14, 2020
Mr. Rodriguez worked as a construction worker for Superior and
Franks between November 2018 and June 2019. Rodriguez says he was
paid hourly, worked more than forty hours a week, and was not paid
any extra for his overtime work. He says the company usually had
between 10 and 15 construction workers on the payroll, who were all
paid the same way. Even though they worked on different projects at
various locations, they were all construction workers subject to
the same pay structure.[CC]
TACO BELL: Faces Class Action in New Jersey Over Chalupa Prices
---------------------------------------------------------------
Tim Nelson, writing for msn, reports that for low-budget Mexican
food, Taco Bell has always been among the best. Maybe not
necessarily in quality or taste, but certainly in terms of
food-per-dollar. Its prices have helped out many a broke college
student scrape by, and reduced the cost of many a drunken mistake
at the end of a long night out.
Now, one New Jersey couple is such a firm believer in the Bell's
budget prices that they're taking its parent company to court over
a deal gone wrong. Specifically, the $5 Chalupa Craving Box deal.
Back in September, Nelson Estrella-Rosales and Joann Estrella filed
suit against Yum! Brands in the U.S. District Court for the
District of New Jersey, alleging that they were overcharged for the
so-called $5 Chalupa Craving Box they had both purchased a while
earlier. The issue arose when, upon the completion of their Chalupa
Supreme, beefy 5-Layer burrito, crunchy taco, cinnamon twists and
medium drink, the couple noticed they were charged $12.18 plus tax
for the two Craving Boxes, a 21.8% markup from the advertised
price. Once the employee they spoke to about the price discrepancy
was no help, they initiated a lawsuit seeking compensation for
their "time wasted driving to Taco Bell, the gasoline expended to
drive their vehicle to the subject Taco Bell, and in the amount of
$2.18."
At the heart of the matter is the old refrain of "prices may vary."
According to NJ.com commercial that convinced the Estrellas to make
the trip to taco bell stated as much in the fine print, appearing
on the screen for less than two seconds. That's why their lawyer is
crying foul.
"It's a classic bait and switch," attorney Douglas Schwartz told
NJ.com. "It's consumer fraud being perpetrated upon not only
citizens of New Jersey, but all over the country. Taco Bell has
reaped huge profits from their false, misleading, and deceptive
advertising."
This isn't the only recent (potentially class-action) lawsuit to
bemoan false advertising for a food company that's papered over by
a tiny disclaimer. Nestle is the subject of a lawsuit over its
supposedly misleading, not-chocolate "white chocolate," though the
company claims it made no such promises. This Taco Bell lawsuit
over $2.18 does feel a bit pettier, however. For their part, a Taco
Bell spokesperson said that "our advertisements are truthful and
accurate, and we will defend this case vigorously."
Everyone has the experience of feeling miffed when a transaction
rings up a little higher than expected. I guess the plaintiff's
argument here centers on the point at which advertising a certain
price creates an expectation that the company doesn't truly intend
to honor. After all, if prices varied from $5 at every location,
was the $5 Chalupa Craving Box deal even real to begin with?
Hopefully the Taco Bell trial of the century will provide fourth
mealers with some answers. [GN]
TESLA INC: Appeal in Investor Suit over Model 3 Production Ongoing
------------------------------------------------------------------
Tesla Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 29, 2019, for the quarterly
period ended September 30, 2019, that the appeal is ongoing in the
class action suit pending before the U.S. District Court for the
Northern District of California related to the company's Model 3
vehicle.
On October 10, 2017, a purported stockholder class action was filed
in the U.S. District Court for the Northern District of California
against Tesla, two of its current officers, and a former officer.
The complaint alleges violations of federal securities laws and
seeks unspecified compensatory damages and other relief on behalf
of a purported class of purchasers of Tesla securities from May 4,
2016 to October 6, 2017. The lawsuit claims that Tesla supposedly
made materially false and misleading statements regarding the
Company's preparedness to produce Model 3 vehicles.
Plaintiffs filed an amended complaint on March 23, 2018, and
defendants filed a motion to dismiss on May 25, 2018. The court
granted defendants' motion to dismiss with leave to amend.
Plaintiffs filed their amended complaint on September 28, 2018, and
defendants filed a motion to dismiss the amended complaint on
February 15, 2019.
The hearing on the motion to dismiss was held on March 22, 2019,
and on March 25, 2019, the Court ruled in favor of defendants and
dismissed the complaint with prejudice. On April 8, 2019,
plaintiffs filed a notice of appeal and on July 17, 2019 filed
their opening brief. The company filed its opposition on September
16, 2019.
Tesla said, "We continue to believe that the claims are without
merit and intend to defend against this lawsuit vigorously. We are
unable to estimate the possible loss or range of loss, if any,
associated with this lawsuit."
On October 26, 2018, in a similar action, a purported stockholder
class action was filed in the Superior Court of California in Santa
Clara County against Tesla, Elon Musk and seven initial purchasers
in an offering of debt securities by Tesla in August 2017.
The complaint alleges misrepresentations made by Tesla regarding
the number of Model 3 vehicles Tesla expected to produce by the end
of 2017 in connection with such offering and seeks unspecified
compensatory damages and other relief on behalf of a purported
class of purchasers of Tesla securities in such offering. Tesla
thereafter removed the case to federal court.
On January 22, 2019, plaintiff abandoned its effort to proceed in
state court, instead filing an amended complaint against Tesla,
Elon Musk and seven initial purchasers in the debt offering before
the same judge in the U.S. District Court for the Northern District
of California who is hearing the above-referenced earlier filed
federal case.
On February 5, 2019, the Court stayed this new case pending a
ruling on the motion to dismiss the complaint in such earlier filed
federal case. After such earlier filed federal case was dismissed,
defendants filed a motion on July 2, 2019 to dismiss this case as
well.
Tesla said, "This case is now stayed pending a ruling from the
appellate court on such earlier filed federal case with an
agreement that if defendants prevail on appeal in such case, this
case will be dismissed. We believe that the claims are without
merit and intend to defend against this lawsuit vigorously. We are
unable to estimate the possible loss or range of loss, if any,
associated with this lawsuit."
No further updates were provided in the Company's SEC report.
Tesla Inc. designs, manufactures, and sells high-performance
electric vehicles and electric vehicle powertrain components. The
Company owns its sales and service network and sells electric
powertrain components to other automobile manufacturers. Tesla
serves customers worldwide. The company is based in Palo Alto,
California.
TESLA INC: Lead Counsel Selected in Twitter Post Litigation
-----------------------------------------------------------
Tesla Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 29, 2019, for the quarterly
period ended September 30, 2019, that a lead counsel has been
selected in the consolidated class action suit related to Elon
Musk's August 7, 2018 Twitter post.
Between August 10, 2018 and September 6, 2018, nine purported
stockholder class actions were filed against Tesla and Elon Musk in
connection with Elon Musk's August 7, 2018 Twitter post that he was
considering taking Tesla private. All of the suits are now pending
in the U.S. District Court for the Northern District of California.
Although the complaints vary in certain respects, they each purport
to assert claims for violations of federal securities laws related
to Mr. Musk's statement and seek unspecified compensatory damages
and other relief on behalf of a purported class of purchasers of
Tesla's securities.
Plaintiffs filed their consolidated complaint on January 16, 2019
and added as defendants the members of Tesla's board of directors.
The now-consolidated purported stockholder class action was stayed
while the issue of selection of lead counsel was briefed and argued
before the U.S. Court of Appeals for the Ninth Circuit.
Tesla said, "The Ninth Circuit has now ruled regarding lead
counsel, and we anticipate that our motion to dismiss will be due
sometime in November 2019. We believe that the claims have no merit
and intend to defend against them vigorously. We are unable to
estimate the potential loss, or range of loss, associated with
these claims."
Tesla Inc. designs, manufactures, and sells high-performance
electric vehicles and electric vehicle powertrain components. The
Company owns its sales and service network and sells electric
powertrain components to other automobile manufacturers. Tesla
serves customers worldwide. The company is based in Palo Alto,
California.
TWITTER INC: Oral Argument in California Suit Set for Dec. 19
-------------------------------------------------------------
Twitter, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that oral argument on
the motion for summary judgment in the consolidated class action
suit in California is scheduled for December 19, 2019.
Beginning in September 2016, multiple putative class actions and
derivative actions were filed in state and federal courts in the
United States against Twitter, Twitter's directors, and/or certain
former officers alleging that false and misleading statements, made
in 2015, are in violation of securities laws and breached fiduciary
duty.
The putative class actions were consolidated in the U.S. District
Court for the Northern District of California. On October 16, 2017,
the court granted in part and denied in part the Company's motion
to dismiss. On July 17, 2018, the court granted plaintiffs' motion
for class certification in the consolidated securities action.
The Company filed a motion for summary judgment on September 13,
2019, and oral argument on the motion is scheduled for December 19,
2019.
Twitter said, "The Company disputes the claims and intends to
continue to defend the lawsuits vigorously."
Twitter, Inc. operates as a platform for public self expression and
conversation in real time. The company offers various products and
services, including Twitter, a platform that allows users to
consume, create, distribute, and discover content; and Periscope, a
mobile application that enables user to broadcast and watch video
live with others. The company operates in the United States and
internationally. Twitter, Inc. was founded in 2006 and is
headquartered in San Francisco, California.
UBER TECH: Ct. Requests Info from Parties in Diva Limousine Case
----------------------------------------------------------------
District Judge EDWARD M. CHEN of the United States District Court
for the Northern District of California issued an order requesting
information from the parties in the case captioned DIVA LIMOUSINE,
LTD., Plaintiff, v. UBER TECHNOLOGIES, INC., et al., Defendants,
Case No. 18-cv-05546-EMC, (N.D. Cal.).
According to Judge Chen, before the Court will approve the parties'
Notice of Voluntary Dismissal, the Court requests information from
the parties about the scope and nature of the publicity associated
with this putative class action.
As Federal Rule of Civil Procedure 23(e) compels: "A class action
shall not be dismissed or compromised without the approval of the
court, and notice of the proposed dismissal or compromise shall be
given to all members of the class in such manner as the court
directs." This requirement "is to protect the interests of absent
plaintiffs before permitting dismissal."
Although "the class has not been certified . . . '[t]his
requirement [to act as the guardian of the rights of class members
still] applies.'" Thus, in order to ensure that the interests of
the absent plaintiffs are appropriately safeguarded, and to
safeguard against any misplaced reliance on this suit and any
consequential tolling of the statute of limitations, the Court
ordered the parties to file a description of the scope of publicity
and nature of the information shared with the public and putative
class members about this case.
A full-text copy of the District Court's October 7, 2019 Order is
available at https://tinyurl.com/yydk47l3 from Leagle.com.
Diva Limousine, Ltd., individually and on behalf of all others
similarly situated, Plaintiff, represented by Michael A. Geibelson
- MGeibelson@RobinsKaplan.com - Robins Kaplan LLP, Aaron M. Sheanin
- ASheanin@RobinsKaplan.com - Robins Kaplan LLP, Ashley Conrad
Keller - ack@kellerlenkner.com - Keller Lenkner LLC, Seth Adam
Meyer - sam@kellerlenkner.com - Keller Lenkner LLC, pro hac vice,
Thomas Kayes - tk@kellerlenkner.com - Keller Lenkner LLC, pro hac
vice, Travis D. Lenkner - tdl@kellerlenkner.com - Keller Lenkner
LLC & Warren D. Postman - wdp@kellerlenkner.com - Keller Lenkner
LLC.
Martin POSH ENTERPRISES CORP., Creditor, represented by Martin G.
Greenbaum , Greenbaum & Katz LLP, 170 Newport Center Dr. Ste. 130,
Newport Beach, California,
Uber Technologies, Inc., Rasier, LLC, Rasier-CA, LLC, Uber USA, LLC
& UATC, LLC, Defendants, represented by Brian C. Rocca -
brian.rocca@morganlewis.com - Morgan, Lewis & Bockius LLP, Kent
Michael Roger - kroger@morganlewis.com - Morgan Lewis & Bockius
LLP, Minna L. Naranjo -minna.naranjo@morganlewis.com - Morgan Lewis
and Bockius & Sujal Shah - sujal.shah@morganlewis.com -, Morgan,
Lewis & Bockius LLP.
UNITED PARCEL: Appeal in Hughes Wage-and-Hour Class Suit Underway
-----------------------------------------------------------------
United Parcel Service, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 29, 2019, for the
quarterly period ended September 30, 2019, that the plaintiffs in
Hughes v. UPS Supply Chain Solutions, Inc. and United Parcel
Service, Inc. have appealed the court's decision granting the
company's motion for judgment on the pleadings.
The company is a defendant in a number of lawsuits filed in state
and federal courts containing various class action allegations
under state wage-and-hour laws. At this time, the company do not
believe that any loss associated with any matter would have a
material adverse effect on our financial condition, results of
operations or liquidity.
One of these matters, Hughes v. UPS Supply Chain Solutions, Inc.
and United Parcel Service, Inc. had previously been certified as a
class action in Kentucky state court. In the second quarter of
2019, the court granted the company's motion for judgment on the
pleadings related to the wage-and-hour claims. The plaintiffs have
appealed this decision.
United Parcel Service, Inc. provides letter and package delivery,
specialized transportation, logistics, and financial services. It
operates through three segments: U.S. Domestic Package,
International Package, and Supply Chain & Freight. United Parcel
Service, Inc. was founded in 1907 and is headquartered in Atlanta,
Georgia.
USA WATER: Mayall Seeks to Certify Class & Subclass
---------------------------------------------------
In the class action lawsuit styled as ALICE MAYALL, as parent and
guardian of minor H.C., on behalf of H.C. and all others similarly
situated, the Plaintiff, vs. USA WATER POLO, INC., the Defendant,
Case No. 8:15-cv-00171-AG-KES (C.D. Cal., Nov. 5, 2019), the
Plaintiff will move the Court on March 2, 2020, for an order:
1. certifying Negligence/Medical-Monitoring Class consisting
of:
"all current or former members of USA Water Polo residing in
any of jurisdictions between January 1, 2013, and the
present";
2. certifying Negligence/Medical-Monitoring Special
Relationship Subclass consisting of:
"those members of the Negligence/Medical-Monitoring Class
who do not reside in Illinois";
3. designating Hannah Carlson as representative of the
Negligence/Medical-Monitoring Class and the Subclass and
appointing her attorneys as class counsel;
4. certifying Core-Issues Class of individuals in any of the 50
states or the District of Columbia who meet the following
definition:
"all current or former members of USA Water Polo 19 between
January 1, 2013, and the present"
5. certifying Core-Issues Special-Relationship Subclass:
"those members of the Core-Issues Class who do not reside in
Delaware, Illinois, Kansas, Louisiana, Maine, South
Carolina, South Dakota, or Wisconsin";
6. designating Hannah Carlson as the Representative of the
Rule 23(c)(4) Core-Issues Class and subclass, and appointing
her attorneys as class counsel.[CC]
Attorneys for the Plaintiff are:
Steve W. Berman, Esq.
Elaine T. Byszewski, Esq.
Christopher R. Pitoun, Esq.
Daniel J. Kurowski, Esq.
Whitney Siehl, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
elaine@hbsslaw.com
christopherp@hbsslaw.com
dank@hbsslaw.com
whitneys@hbsslaw.com
V & P ALTITUDE: Fails to Pay Laborers' OT Wages, Lipchenko Claims
-----------------------------------------------------------------
YEVGENIY LIPCHENKO, ANDRIY SYNOVETS, and IGOR LOZINSKI,
individually and on behalf of others similarly situated, Plaintiffs
v. V & P ALTITUDE CORP (D/B/A V & P ALTITUDE), HENRY ASNES, and
PETER ASNES, Defendants, Case No. 1:19-cv-06028 (E.D.N.Y., Oct. 25,
2019), alleges that the Defendants maintained a policy and practice
of requiring the Plaintiffs and other employees to work in excess
of 40 hours per week without providing the overtime compensation
required by the Fair Labor Standards Act of 1938 and the New York
Labor Law.
The Defendants employed the Plaintiffs as a labor or mechanic. The
Plaintiffs allege they worked for Defendants in excess of 40 hours
per week, without appropriate minimum wage and overtime
compensation for all the hours that they worked.
The Defendants own, operate, or control a construction company,
located at 3709 Fort Hamilton Parkway, in Brooklyn, New York, under
the name "V & P Altitude." Henry Asnes and Peter Asnes, serve or
served as owners, managers, principals, or agents of the Defendant
Corporation and, through this corporate entity, operate or operated
the construction corporation as a joint or unified enterprise.[BN]
The Plaintiffs are represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Faillace@employmentcompliance.com
WALGREENS: Still Faces Trial Unless Chain Joins Opioid Settlement
-----------------------------------------------------------------
CBS News reports that four of the six defendants in a landmark
federal case against opioid manufacturers and distributors
negotiated a last-minute settlement. The tentative deal reportedly
will cost those companies a combined $260 million, but avoids a
trial that was supposed to begin in Cleveland on Oct. 21.
The Walgreens drugstore chain still faces trial at a later date
unless it joins that settlement. This case is the first of more
than 2,000 lawsuits filed by local governments over the opioid
crisis that has killed about 400,000 Americans since 1999.
We met with a West Virginia family devastated by the opioid
epidemic. Wanita Harvey never thought she'd spend her retirement
years raising young children, but around a decade ago, she became a
mother again -- twice over.
"I love them. They're the loves of my life," Harvey told CBS News
correspondent Adriana Diaz. "I think for me my biggest fear is . .
. what if they have to have pain medication . . . and will it tip
them over into being addicted."
Harvey and her husband adopted their grandchildren, Emmalee and
Jerimiah, because of their birth mother's addiction, which Harvey
said started when a doctor prescribed her opioids after a car
accident. Harvey said the children were born addicted to drugs.
The Harveys live in Beckley, West Virginia, hit hard by the opioid
epidemic. West Virginia has had more opioid related deaths than any
other state, followed by neighboring Ohio. The Harveys are now part
of a class action lawsuit against opioid distributors,
manufacturers and retail pharmacies, accusing them of aggressively
marketing, distributing and over-prescribing the drugs.
Stephen New, the Harvey family's attorney, is closely watching the
federal case involving Summit and Cuyahoga Counties in Ohio.
"In the court room, everyone's equal. A family, like the Harvey
family, or a county like Cuyahoga County, stands on equal footing
with multi-national billion dollar corporations," New said.
New York attorney Harlan Levy said the Ohio federal case is known
as a bellwether trial, which helps set the groundwork for around
2,500 similar cases across the country.
"The numbers that are at stake are enormous," Levy said.
But it's not the first time recently that a major corporation has
been taken to task. In August drugmaker Johnson & Johnson was
ordered to pay more than $572 million after being found liable in
state court for helping fuel Oklahoma's opioid crisis. They are
appealing the decision.
"This is entirely new ground. This is the reckoning of the opioid
crisis," Levy said.
A reckoning is exactly what Harvey wants.
"Their lives are forever changed. Not only birth moms,
grandparents, but the children. The children's lives are forever
changed," Harvey said.
We reached out to the companies and corporations involved in the
federal case. In a statement, the Healthcare Distribution Alliance
said:
"We remain deeply concerned by the impact the opioid epidemic is
having on families and communities across our nation -- and we're
committed to being part of the solution.
"It's important to understand the nature of the role distributors
play in the pharmaceutical supply chain. As logistics experts, we
help ensure that medicines prescribed by licensed doctors are
delivered to licensed pharmacies, so they are available for
patients who need them, when they need them, where they need them.
We are only one component of the supply chain, which also includes
drug manufacturers, regulatory bodies like the U.S. Drug
Enforcement Administration and state pharmacy boards, payers,
prescribing doctors and dispensing pharmacists." [GN]
WELLCARE HEALTH: Clark & Seabaugh Suits Voluntarily Dismissed
-------------------------------------------------------------
WellCare Health Plans, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 30, 2019, for the
quarterly period ended September 30, 2019, that the plaintiff in
the case, Clark v. WellCare and the plaintiff in the case, Seabaugh
v. WellCare, have agreed to drop their notices.
Between May 7 and May 9, 2019, three putative class action lawsuits
were filed by purported stockholders of WellCare against WellCare
and members of the WellCare Board in the United States District
Court for the District of Delaware (Stein v. WellCare Health Plans,
Inc., et al., Case No. 1:19-cv-00855-LPS ("Stein v. WellCare");
Kent v. WellCare Health Plans, Inc., et al., Case No.
1:19-cv-00865-LPS ("Kent v. WellCare"); and Clarke v. WellCare
Health Plans, Inc., et al., Case No. 1:19-cv-00873-LPS "Clark v.
WellCare").
The complaint in Kent v. WellCare also names Centene, Merger Sub I
and Merger Sub II as defendants. The complaints in Stein v.
WellCare, Kent v. WellCare and Clark v. WellCare purport to assert
claims under Sections 14(a) and 20(a) of the Securities Exchange
Act of 1934 and allege that the Joint Proxy Statement filed with
the SEC on May 23, 2019 contained certain material omissions.
In addition, on May 10, 2019, a putative class action lawsuit was
filed by a purported stockholder of WellCare against WellCare,
members of the WellCare Board, Centene, Merger Sub 1 and Merger Sub
2 in the Circuit Court of the 13th Judicial Circuit in and for
Hillsborough County, Florida (Seabaugh v. WellCare Health Plans,
Inc., et al., Case No. 2019CA004942 ("Seabaugh v. WellCare" and,
together with Stein v. WellCare, Kent v. WellCare and Clark v.
WellCare, the "Lawsuits").
The complaint in Seabaugh v. WellCare alleges that members of the
WellCare Board breached their fiduciary duties by, among other
things, agreeing to an allegedly unfair and inadequate price,
agreeing to deal protection devices that allegedly impede their
ability to investigate or obtain higher offers, allegedly failing
to protect against certain purported conflicts of interest, and
allegedly failing to disclose material information in the Joint
Proxy Statement.
The complaint further alleges that WellCare, Centene, Merger Sub 1
and Merger Sub 2 aided and abetted these alleged breaches of
fiduciary duties. The complaint seeks to enjoin or rescind the
mergers and requests an award of attorneys’ fees and damages in
an unspecified amount.
On July 1, 2019, the plaintiffs in Stein v. WellCare and Kent v.
WellCare filed notices of voluntary dismissal. On September 24,
2019, the plaintiff in Clark v. WellCare filed a notice of
voluntary dismissal. On October 8, 2019, the plaintiff in Seabaugh
v. WellCare filed a notice of voluntary dismissal.
WellCare Health Plans, Inc., incorporated on February 5, 2004, is a
managed care company. The Company focuses on government-sponsored
managed care services, primarily through Medicaid, Medicare
Advantage (MA) and Medicare Prescription Drug Plans (PDPs), to
families, children, seniors and individuals with medical needs. The
Company operates in three segments: Medicaid Health Plans, Medicare
Health Plans and Medicare PDPs. The company is based in Tampa,
Florida.
WELLS FARGO: Perez, et al. Seek to Certify Classes & Subclasses
---------------------------------------------------------------
MITZIE PEREZ, ANDRES ACOSTA, SERGIO BARAJAS, TERESA DIAZ VEDOY,
VICTORIA RODAS, and SAMUEL TABARES VILLAFUERTE, individually and on
behalf of all others similarly situated, the Plaintiffs, vs. WELLS
FARGO BANK, N.A., the Defendant, Case No. 17-cv-00454-MMC-EDL (N.D.
Cal.), the Plaintiffs will move the Court on Feb. 7, 2020, for an
order:
1. appointing Plaintiffs as Class Representatives;
2. appointing Plaintiffs' counsel as Class Counsel; and
3. certifying these classes and subclasses:
Classes:
a. Educational Financial Services Class:
"all DACA Residents during the Covered Period who applied
or will apply for a Wells Fargo student loan and were
declined or will be declined by Wells Fargo under denial
code "d01," or another code or codes reflecting the same
basis for declination that Wells Fargo might use in the
future";
b. Consumer Financial Services Class:
"all DACA Residents during the Covered Period who applied
or will apply for (i) a Wells Fargo unsecured credit card
and were declined or will be declined by Wells Fargo
under denial codes "1409" or "1614," or another code or
codes reflecting the same basis for declination that
Wells Fargo might use in the future, or (ii) a Wells
Fargo unsecured personal loan and were declined or will
be declined by Wells Fargo under denial code "34N," or
another code or codes reflecting the same basis for
declination that Wells Fargo might use in the future,
and, between January 30, 2015 and February 13, 2015 only,
denial code "321""
c. BD Class:
"all DACA Residents during the Covered Period who applied
or will apply for a Wells Fargo small business credit
card or loan, whether secured or unsecured, and were
declined or will be declined by Wells Fargo under denial
codes "M93" or "Q14," or another code or codes reflecting
the same basis for declination that Wells Fargo might use
in the future"; and
California Unruh Civil Rights Act, Cal. Civ Code sections 51
et seq. Subclasses:
a. EFS California Subclass:
"all EFS Class members in California during the Covered
Period"; and
b. CFS California Subclass:
"all CFS Class members in California during the Covered
Period."[CC]
Attorneys for Plaintiffs and the Proposed Class, are:
Jahan C. Sagafi, Esq.
Relic Sun, Esq.
Rachel Dempsey, Esq.
Ossai Miazad, Esq.
Michael N. Litrownik, Esq.
Elizabeth V. Stork, Esq.
Patrick David Lopez, Esq.
Daniel S. Stromberg, Esq.
OUTTEN & GOLDEN LLP
One California St, 12th Floor
San Francisco, CA 94111
Telephone: (415) 638-8800
Facsimile: (415) 638-8810
E-mail: jsagafi@outtengolden.com
rsun@outtengolden.com
rdempsey@outtengolden.com
om@outtengolden.com
mlitrownik@outtengolden.com
estork@outtengolden.com
pdl@outtengolden.com
dstromberg@outtengolden.com
- and -
Thomas A. Saenz, Esq.
Belinda Escobosa Helzer, Esq.
Joel Marrero, Esq.
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND
634 S. Spring St., 11th Floor
Los Angeles, CA 90014
Telephone: (213) 629-2512
Facsimile: (213) 629-0266
E-mail: tsaenz@maldef.org
bescobosa@maldef.org
jmarrero@maldef.org
XPO PORT: Arrellano Seeks to Certify Class of Drivers
-----------------------------------------------------
In the class action lawsuit styled as VICTOR CORTEZ ARRELLANO, AND
ON BEHALF OF ALL UNNAMED PLAINTIFFS SIMILARLY SITUATED, the
Plaintiffs, vs. XPO PORT SERVICE INC.; and DOES 1 through 50,
inclusive, the Defendants, Case No. 2:18-cv-08220-SJO-(E) (C.D.
Cal.), the Plaintiffs will move the Court on Feb. 3, 2020, for an
order:
1. certifying a class of:
"approximately 79 class members of former and current
Drivers of Defendant XPO Port Services Inc. who work or
worked out of XPO's California yard located at 18726 South
Laurel Road, Rancho Dominguez, California, during the
relevant period, defined as the class of individuals who:
(1) signed an independent contractor agreement with XPO in
California at any time from May 25, 2013 through the date of
notice to the class; (2) actually drove for XPO as a Truck
Driver or similar position; and (3) were classified by XPO
as an independent contractor instead of an employee"; and
2. appointing Reynaldo Gomez Acosta, Servando Avila Luciano,
and Felix Nunez Duarte as Class representatives, and
appointing Gomez Law Group as Class Counsel.[CC]
Attorney for the Plaintiffs and on behalf of all unnamed Plaintiffs
similarly situated, are:
Alvin M. Gomez, Esq.
GOMEZ LAW GROUP
2725 Jefferson Street, Suite 7
Carlsbad, CA 92008
Telephone: (858) 552-0000
Facsimile: (760) 720-5217
E-mail: amglawyers@yahoo.com
YAHOO INC: Borden Ladner Attorney Discusses Discovery Ruling
------------------------------------------------------------
Bevan Brooksbank, Esq. -- BBrooksbank@blg.com -- of Borden Ladner
Gervais LLP, in an article for Mondaq, reports that in the recent
decision of Justice Perell in Karasik v. Yahoo Inc., a motion by
the representative plaintiffs for production of Yahoo's Canadian
user database was dismissed. While Perell J. applied
well-established principles in reaching this conclusion, the motion
illustrates the rule that documentary production prior to
certification will be limited within the confines of being
proportionate, relevant and necessary to certification itself.
By way of background, in 2016, several representative plaintiffs
commenced a proposed class action against Yahoo advancing privacy
torts and certain statutory claims arising from large data breaches
that occurred in 2013, 2014 and 2016. It was widely believed that
the Russian state security service was responsible for the
cyber-attacks that compromised Yahoo user accounts worldwide.
In response to the plaintiffs' certification materials, the
defendants delivered several affidavits, including one sworn by an
expert in information systems in response to the plaintiffs' expert
evidence.
Prior to cross-examinations, the plaintiffs made 20 requests for
information and documents referred to in the responding affidavits.
While Yahoo delivered substantially all of the requested
information, it objected to a request for the production of Yahoo's
database of its 16.9 million Canadian users. The database had been
provided to the defendants' expert to assist in preparing her
report.
The plaintiffs brought a motion to compel production. Justice
Perell set out the guiding principles that govern pre-certification
documentary discovery:
i. There is no automatic right to discovery at the certification
stage;
ii. The onus is on the party seeking the documents to explain why
the documents are relevant to the issues on certification, which is
by its nature procedural and does not go to the merits of the
action. Bald assertions that the documents may be relevant will
not suffice;
iii. At the pre-certification stage, proportionality is of
particular concern, and the production must be confined to what is
necessary to inform the certification hearing; and
iv. A guiding principal is fairness, in that production should
not be unduly burdensome, yet a party should not hold back
production otherwise needed by its opponent to inform the focussed
purposes of the certification hearing.
Perell J. held that the plaintiffs did not establish why the
extensive database was needed to permit cross-examination of the
defendants' expert. While the expert extracted information from
the database to draw her conclusions, there was no suggestion that
the information was inaccurate or why access to the data was
necessary to allow for cross-examination on the expert's
methodology. Justice Perell also noted that Yahoo had otherwise
made extensive production and that the request for the database was
disproportionate in the circumstances of the motion.
While the motion reasons are not extensive, or novel, the decision
addresses the application of proportionality to discovery in the
class actions context. In the typical litigation setting, the
parties can often reach agreement on the scope of documentary
production, as both sides will be subject to the same production
obligations, and will also be subject to similar burdens in terms
of meeting those obligations. This is not the case in class
actions, where an informational asymmetry results from the fact
that practically all of the relevant records are typically in the
hands of the defendants. While plaintiffs should not be prejudiced
by an inability to rely on documents truly relevant and necessary
to meeting the test for certification, discovery should not be
permitted to be used as a lever to push for settlement through
imposing wide-ranging and onerous production obligations on
defendants. [GN]
ZENDESK INC: Faces Reidinger Securities Suit in N.D. California
---------------------------------------------------------------
CHARLES REIDINGER, Individually and on Behalf of All Others
Similarly Situated, Plaintiff v. ZENDESK, INC., MIKKEL SVANE, ELENA
GOMEZ, ADRIAN McDERMOTT, JOHN GESCHKE, JEFFREY TITTERTON and NORMAN
GENNARO, Defendants, Case No. 3:19-cv-06968 (N.D. Cal., Oct. 24,
2019), is a securities fraud class action brought on behalf of all
purchasers of Zendesk common stock between February 6, 2019, and
October 1, 2019, inclusive, seeking to pursue remedies under the
Securities Exchange Act of 1934.
Throughout the Class Period, the Defendants disseminated materially
false and misleading statements to the investing public and failed
to disclose adverse facts pertaining to the Company's business,
operations, and financial results, the Plaintiff contends.
Specifically, the Company concealed material information and/or
failed to disclose that:
-- Zendesk's clients had been subject to data breaches dating
back to 2016;
-- Zendesk was experiencing slowing demand for its Software as
a Service ("SaaS") offerings, particularly in Germany, the
United Kingdom ("U.K.") and Australia, due in large part to
political uncertainty and China trade issues there; and
-- as a result, Zendesk's business metrics and financial
prospects were not as strong as defendants had led the
market to believe during the Class Period.
On July 30, 2019, Zendesk issued a press release and conducted a
conference call to announce its second quarter 2019 ("2Q19")
financial results for the period ended June 30, 2019. Zendesk
reported net losses that had grown to $54.5 million, or $0.50 per
share, which was significantly larger than the $34.4 million, or
$0.33 per share, reported in 2Q18, despite the fact that 2Q19
revenues had increased from $141.9 million in 2Q18 to $194.6
million in 2Q19. The Company also reported revenue growth of 37%,
which was below the 38-41% range the Company had reported over the
prior eight quarters.
In addition to the disappointing financial results, Zendesk
disclosed that its sales growth in the Europe, Middle East, and
Africa ("EMEA") and Asia-Pacific ("APAC") regions "didn't quite
live up to Defendants' own expectations, and lagged other regions."
Prior to September 24, 2019, a third party alerted Zendesk to the
fact that the personally identifiable data ("PID") of its chat and
support accounts had been breached. By September 24, 2019, Zendesk
had internally confirmed the size and scope of the breach. On
October 2, 2019, Zendesk for the first time publicly disclosed the
data breach, stating then that the data breach only affected
customers, who had signed up prior to November 1, 2016.
On news of the data breach, the price of Zendesk common stock fell
another $2.90 per share to close at $69.81 per share on October 2,
2019, again on unusually high volume of more 11 than 3.3 million
shares traded.
Meanwhile, with Zendesk common stock trading at fraud-inflated
prices throughout the Class Period, the Company's senior executive
officers named as defendants cashed in, collectively selling
approximately 409,000 of their personally held Zendesk shares,
reaping more than $32.7 million in proceeds, the lawsuit says.
The Plaintiff purchased Zendesk common stock during the Class
Period and has been damaged when the stock price dropped.
Zendesk is a Software as a Service ("SaaS") provider that purports
to help clients better communicate with their customers through
online customer chats and data analysis. The Company provides
single customer service interface to organizations to manage all
their one-on-one customer interactions, track and predict common
questions, and provide a seamless path to answers. The employees of
Zendesk's clients are called "agents" of Zendesk, and their
customers are Zendesk's "end users."[BN]
The Plaintiff is represented by:
Shawn A. Williams, Esq.
Samuel H. Rudman, Esq.
Mary K. Blasy, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: 415/288-4545
Facsimile: 415/288-4534
E-mail: shawnw@rgrdlaw.com
srudman@rgrdlaw.com
mblasy@rgrdlaw.com
- and -
Frank J. Johnson, Esq.
JOHNSON FISTEL, LLP
655 West Broadway, Suite 1400
San Diego, CA 92101
Telephone: 619/230-0063
Facsimile: 619/255-1856
E-mail: frankj@johnsonfistel.com
ZIONS BANCORP: Tucker & Ellis Attorneys Discuss Court Ruling
------------------------------------------------------------
Ndubisi Ezeolu, Esq., and Juan Aragon, Esq. --
juan.aragon@tuckerellis.com -- of Tucker & Ellis LLP, in an article
for Bloomberg Law, report that California's high court ruled that
people who sue under a state law that deputizes employees to sue
their employer on the state's behalf cannot recover unpaid wages.
Tucker Ellis LLP attorneys explain how the decision is welcome news
for employers and offer important steps to take when onboarding
employees and drafting arbitration agreements.
An unexpected recent pro-employer decision from California's
Supreme Court found that unpaid wage claims cannot be recovered by
employees under the state's Private Attorneys General Act (PAGA)
because those wages are "not a civil penalty that a private citizen
has authority to collect."
The ruling in ZB, N.A., and Zions Bancorporation v. Superior Court
of San Diego (Cal. Sept. 12, 2019) dramatically reduces employers'
PAGA exposure to only civil penalties and makes clear that there is
no right to individual employee wage recovery under the PAGA
umbrella. Thus, employees can still be required to arbitrate unpaid
wage claims.
This decision is a welcome development for all California
employers. The potential exposure in PAGA cases - and pressure to
settle because of that exposure - has greatly decreased. It also
puts a much-needed end to employees' backdoor attempts to "recover"
unpaid wages in PAGA actions while avoiding arbitration or the
difficulties of pursuing a class action.
The PAGA statute is a powerful tool because it offers financial
incentives ($50 or $100 per violation) to private individuals to
enforce state labor laws, which are typically reserved for the
labor commissioner or attorney general. Plaintiff's counsel
bringing a PAGA claim can seek attorneys' fees under the statute as
well.
Importantly, PAGA claims may not be waived, and employees may not
be compelled to arbitrate such claims. These features made PAGA
claims increasingly popular among the plaintiffs' bar.
Case Specifics
In the case, plaintiff Kalethia Lawson alleged that her employer,
ZB, failed to provide overtime, minimum wages, and meal and rest
periods. Her employment agreement required that she arbitrate all
disputes with her employer. She never disputed that she agreed to
arbitrate her claims, but she initially sidestepped arbitration by
characterizing her wage claim as a civil penalty under PAGA.
When she filed a PAGA claim, ZB moved to compel arbitration of her
individual claims for unpaid wages, which was granted by the trial
court. Defendants appealed a different portion of the decision, but
the case wound its way to the state high court to resolve a split
of authority over whether unpaid wages and the other non-fixed
amounts were truly part of a civil penalty or constituted
individual relief outside the scope of a PAGA action.
ZB argued before the California Supreme Court that unpaid wages
claims are subject to arbitration because PAGA covers only civil
penalties, and unpaid wages fail to qualify as civil penalties
since they are compensatory damages.
Following an in-depth analysis of the California Labor Code
language and legislative history, the court agreed, reasoning that
the statute allowed recovery of only fixed penalties that are
specified in the statute in certain amounts. Thus, PAGA does not
cover unpaid wage claims unique to an employee because the statute
encompasses only civil penalties.
The court further noted that the law authorizes only the "Labor
Commissioner to issue a citation that includes both a civil penalty
and the same unpaid wages." The court recognized that plaintiffs
may recover unpaid wages through civil actions or by filing labor
commission claims rather than filing under PAGA.
What Does This Actually Mean?
What can companies do in the wake of this judgment?
1. California is still a pro-employee state, so review your
current employee agreements or handbooks.
Are they easily accessible to your employees?
Do they include an arbitration agreement that is apparent and
readable?
Ensure that employees expressly acknowledge and agree to arbitrate
claims related to any disputes they may have with the company.
The simplest way to do this is to include an arbitration clause
that the worker signs or initials within the employment agreement
as opposed to referencing another document that the worker may
never actually see.
2. Consider tailoring the language of arbitration clauses in
employee agreements or handbooks to include unpaid wage claims,
overtime claims, and meal and rest claims.
Ensuring that these kinds of claims are arbitrated makes legal
costs more manageable and predictable.
3. Sloppy drafting and unclear language leaves arbitration
agreements vulnerable to courts eager to protect employees.
Companies located in California or those with workers located in
California should keep an eye on PAGA cases. PAGA claims
skyrocketed in popularity because they allowed plaintiffs to
circumvent arbitration clauses and the more stringent class action
requirements.
Plaintiffs' counsel is sure to seek out creative ways to steer
cases into state courts. Likewise, monitor workers' advocacy groups
who disagreed with ZB as they may seek out legislative means to
increase "protections" for California employees.
In that same vein, companies should keep tabs on how lower courts,
other employers, and the plaintiffs' bar grapple with this
decision. While the ruling provides guidance and is welcome news
for anyone doing business in California, the full ramifications and
impact remain uncertain.
This column does not necessarily reflect the opinion of The Bureau
of National Affairs, Inc. or its owners.
Ndubisi Ezeolu -- ndubisi.ezeolu@tuckerellis.com -- is counsel with
Tucker Ellis LLP in Los Angeles and practices management-side
employment law and focuses on helping businesses of all sizes
better govern their talent.
Juan Aragon is an associate with Tucker Ellis and his practice
includes high-stakes and contentious legal matters involving
complex commercial, contractual, and employment mobility issues.
[GN]
ZOVIO INC: Continues to Defend Stein Class Action
-------------------------------------------------
Zovio Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 30, 2019, for the quarterly
period ended September 30, 2019, that the company continues to
defend a class action suit initiated by Shiva Stein.
On March 8, 2019, a securities class action complaint was filed in
the U.S. District Court for the Southern District of California by
Shiva Stein naming the Company, Andrew Clark, Kevin Royal, and
Joseph D'Amico as defendants.
The Stein Complaint alleges that Defendants made false and
materially misleading statements and failed to disclose material
adverse facts regarding the Company's business, operations and
prospects, specifically that the Company had applied an improper
revenue recognition methodology to students enrolled in the FTG
program.
The Stein Complaint asserts a putative class period stemming from
March 8, 2016 to March 7, 2019. The Stein Complaint alleges
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder. Plaintiff Stein
was appointed lead plaintiff by the Court and filed a substantially
similar amended complaint on October 1, 2019.
Zovio said, "The Company is evaluating the amended complaint and
intends to vigorously defend against it. However, because of the
many questions of fact and law that may arise, the outcome of the
legal proceeding is uncertain at this point. Based on information
available to the Company at present, the Company cannot reasonably
estimate a range of loss and accordingly has not accrued any
liability associated with this action."
No further updates were provided in the Company's SEC report.
Zovio Inc. operates as an education technology services company in
the United States. The company was formerly known as Bridgepoint
Education, Inc. and changed its name to Zovio Inc in April 2019.
Zovio Inc was founded in 1999 and is headquartered in San Diego,
California.
[*] Brockovich Pushes for Regulatory Reform to Fight Silicosis
--------------------------------------------------------------
9News reports that American legal activist Erin Brockovich has
turned her sights to Australia's deadly silicosis epidemic,
fighting for regulatory changes to protect workers at risk.
Silicosis is a lung disease caused by inhaling silica dust, found
in kitchen bench tops and bathroom basins.
In March this year, 36-year-old Anthony White from the Gold Coast
became the first Australian to die from the disease.
More than 160 stonemasons have lodged compensation claims in
Queensland alone.
"These are young people, this is a matter of being more transparent
and getting in there and changing policies, before it does become
the next mesothelioma," Ms Brockovich said.
Garry Moratti had been a stonemason for 35 years when he suddenly
collapsed at work. Doctors diagnosed him with silicosis and
determined the disease had been caused by decades of inhaling
silica dust. His family has fought for compensation.
While a class action is being considered, Shine Lawyers says
individual compensation claims are proving to be a better option as
they take into account the patient's pain, suffering and
prognosis.
Queensland has banned dry cutting, meaning the material must be cut
while wet, reducing the risk of inhaling dust.
But Mr. Moratti claims not all companies enforce the regulation.
"There are still companies out there who say, 'don't worry about
it, you won't get caught'," Mr Moratti said.
And the rest of the country has not followed Queensland's lead.
"You have other states that are doing little to nothing," Roger
Singh from Shine Lawyers said.
"There's an inconsistent approach across the country to address
this problem
"This is a national crisis that merits a national response." [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
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