/raid1/www/Hosts/bankrupt/CAR_Public/191227.mbx
C L A S S A C T I O N R E P O R T E R
Friday, December 27, 2019, Vol. 21, No. 259
Headlines
ACCURATE PERSONNEL: Stidwell Sues Over Use of Biometric Data
AYTU BIOSCIENCE: Sebree Files Suit v. Board Over Cerecor Merger
BARNES & NOBLE: Hebert Seeks to Certify Background Checks Suit
BETANCOURT AUTO SALES: Melillo Hits Illegal Telemarketing SMS Ads
BOSMAN TRUCKING: Court Grants Stage-One Conditional Certification
BOXWOOD MERGER: Wolf Seeks to Enjoin Acquisition of Atlas TC
CANADIAN COUNTY, OK: White et al. Seek to Certify Detainees Class
CBC RESTAURANT: Pardue, et al. Seek to Certify Six FLSA Classes
CHICAGO, IL: Ali Seeks to Certify Class Action over Bail Policy
COINBASE INC: Accord in Cryptsy Account Owners' Suit Okayed
CREDIT CONTROL: Cartmell Seeks to Certify Class
DON VITO: Final Approval of Class Action Settlement Sought
ELITE EYE: Court Certifies Class of Medical Assistants
EQ3 LTD: Faces Muhammad Suit Over Violation of Disabilities Act
EXELON CORPORATION: Sellers Seeks to Certify FLSA Collective
FACEBOOK INC: Adkins Seeks to Certify Class of Users
FRESHONE DISTRIBUTION: McCurdy Seeks Overtime Wages for Drivers
GATESTONE & CO: Murray Sues Over Unsolicited Marketing Texts
GEO GROUP: Ramirez Seeks to Certify Class & Subclass
GOLD CLUB TAMPA: Athena Sues Over Illegal Tip Pool
HEADWAY TECHNOLOGIES: Faces Stanley Antitrust Suit in N.D. Calif.
HEALTH CARE BRIDGE: Terrell Seeks OT Wages for Home Health Aids
HILLENBRAND INC: Schroeder Seeks Minimum Wages & Overtime Pay
HOLY SEE: Faces Class Action Over Child Abuse Cover Up
JAW ENTERTAINMENT: Etheredge Seeks Minimum, Overtime Wages
JOLIET, IL: Ross Seeks to Certify Inmates Suit over Halal Diet
JONES DAY: Tolton et al. Seek to Certify Suit over Equal Pay
KDA CONTRACTING: Dismissal of Avgoustidis Shareholder Suit Sought
KOHN LAW: Reitz Sues Over Illegal Debt Collection Practices
KRAFT HEINZ: Noohi Files Product Mislabeling Suit
LENDINGCLUB CORP: Veal Securities Suit Dismissed w/ Leave to Amend
LGS INC: Reynoso et al. Seek to Certify FLSA Collective Action
LILITH GAMES: Coy Hits Deceptive Business Practices
MARS INC: M&M's Fat Boy Ice Cream Lacks Vanilla, Richardson Says
MDL 2672: Dealers' Bid for Class Certification Denied as Moot
MEDICAL BUSINESS: Court Certifies FCCPA Class & FDCPA Subclass
NATIONAL ENTERTAINMENT: Class of Dancers Conditionally Certified
NATIONAL GENERAL: North Miami Securities Suit Moved to S.D.N.Y.
NAVIENT SOLUTIONS: 5th Cir. Flips Discharge Injunction Ruling
NCAA: Sued by Patrick for Ignoring Athletes' Health and Safety
NCAA: Taylor Sues Over Disregard of Student-Athletes' Safety
NORTHERN TRUST: Court Denies Motion for Class Certification
NORWALK, CA: Riley Seeks to Certify FLSA Class
OSKA CHICAGO: Faces Muhammad Class Suit Alleging Violation of ADA
OSTERMAN PROPANE: Court Certifies Delivery Drivers Class
PECO FOODS INC: Hallman Seeks Pay for Off-the-Clock Work
PIZZA TO YOU: Waters Seeks Minimum & OT Pay for Delivery Drivers
PORTFOLIO RECOVERY: Perea Seeks to Certify FDCPA Class
PROBUILD COMPANY: Senvong Labor Case Removed to S.D. California
RESORT MARKETING: $2.7MM Settlement Deal Gets Final Court OK
SANDALS RESORTS: Court Dismisses Gordon Class Suit
SHERATON OPERATING: Guijarro Suit Removed to S.D. California
SMX LLC: Crawford Seeks Overtime Wages for Non-Exempt Recruiters
SPRINT/UNITED MANAGEMENT: Denied Fuhr Breaks, Wage Statements
STOCKX INC: Harrington Sues Over Data Breach
STRADA SERVICES: Serna Seeks to Recover Overtime Wages Under FLSA
TRANSPORTE EL SOL: Piedra Seeks to Recoup Unpaid Wages Under FLSA
TRANSWORLD SYSTEMS: Coulter Seeks to Certify Class of Consumers
TWENTY-ONE EIGHTY-FIVE: Arndt Consumer Suit Removed to S.D. Fla.
YARDSTICK MANAGEMENT: Morris Seeks Minimum and Overtime Wages
Asbestos Litigation
ASBESTOS UPDATE: 2 CIRCOR Units Still Defend Claims at Sept. 29
ASBESTOS UPDATE: ArvinMeritor Had 1,400 Pending Claims at Sept. 30
ASBESTOS UPDATE: Ashland Global Had $352MM Reserves at September 30
ASBESTOS UPDATE: Ashland Global Had 53,000 Open Claims at Sept. 30
ASBESTOS UPDATE: Cabot Still Defends 35,000 Claimants at Sept. 30
ASBESTOS UPDATE: GMS Units Still Faces 32 PI Suits at October 31
ASBESTOS UPDATE: Hercules LLC Had $252MM Reserve at September 30
ASBESTOS UPDATE: Hercules LLC Had 13,000 Open Claims at Sept. 30
ASBESTOS UPDATE: Meritor Inc. Had US$91MM Reserves at September 30
*********
ACCURATE PERSONNEL: Stidwell Sues Over Use of Biometric Data
------------------------------------------------------------
JOHN STIDWELL, individually, and on behalf of all others similarly
situated, Plaintiff v. ACCURATE PERSONNEL, LLC, Defendant, Case No.
2019CH13564 (Nov. 22, 2019), seeks to redress and curtail the
Defendant's unlawful collection, use, storage, and disclosure of
the Plaintiff's sensitive and proprietary biometric data.
When the Defendant hires an employee, including the Plaintiff, he
or she is enrolled in its employee database(s) using a scan of his
or her fingerprint. Defendant uses the employee database(s) to
monitor the time worked by its employees. While many employers use
conventional methods for tracking time worked (such as ID badges or
punch clocks), the Defendant's employees are required, as a
condition of employment, to have their fingerprints scanned by a
biometric timekeeping device.
Biometrics are not relegated to esoteric corners of commerce. Many
businesses--such as the Defendant's--and financial institutions
have incorporated biometric applications into their workplace in
the form of biometric timeclocks or authenticators, and into
consumer products, including such ubiquitous consumer products as
checking accounts and cell phones. Unlike ID badges or time
cards--which can be changed or replaced if stolen or compromised--a
fingerprint is a unique, permanent biometric identifier associated
with each employee.
This exposes the Defendant's employees to serious and irreversible
privacy risks. For example, if a database containing fingerprints
or other sensitive, proprietary biometric data is hacked, breached,
or otherwise exposed--like in the recent Yahoo, eBay, Equifax,
Uber, Home Depot, MyFitnessPal, Panera, Whole Foods, Chipotle, Omni
Hotels & Resorts, Trump Hotels, Facebook/Cambridge Analytica, and
Suprema data breaches or misuses--employees have no means by which
to prevent identity theft, unauthorized tracking or other unlawful
or improper use of this highly personal and private information.
Accurate is a provider of temporary job services and direct hire
search, with its corporate headquarters located in Schaumburg,
Illinois.[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
Telephone: 312 233 1550
Facsimile: 312 233 1560
E-mail: rstephan@stephanzouras.com
jzouras@stephanzouras.com
jenkins@stephanzouras.com
AYTU BIOSCIENCE: Sebree Files Suit v. Board Over Cerecor Merger
---------------------------------------------------------------
Michael Sebree, on behalf of himself and all others similarly
situated, Plaintiff, v. Josh Disbrow, Steven Boyd, Gary Cantrell,
Carl Dockery, John Donofrio, Jr., Michael Macaluso and Ketan Mehta,
Defendants, Case No. 2019-1011 (D. Del., December 17, 2019), seeks
to enjoin defendants and all persons acting in concert with them
from proceeding with, consummating or closing the Asset Purchase
Agreement between Aytu BioScience, Inc. with Cerecor, Inc.,
rescinding it in the event defendants consummate the merger,
rescissory damages, costs of this action, including reasonable
allowance for plaintiff's attorneys' and experts' fees and such
other and further relief under the Securities Exchange Act of
1934.
Aytu BioScience agreed to pay aggregate consideration of
approximately $32 million to Cerecor consisting of cash
consideration in the amount of $4.5 million by wire transfer of
immediately available funds, Series G Preferred Stock equal to
$12.5 million and the Company's assumption of obligations owed by
Cerecor to Deerfield CSF, LLC totaling approximately $16.575
million, including any guaranteed interest payments due through
January 2021 even if the note is paid in full prior to its
maturity.
The complaint asserts that the registration statement for the
merger failed to include critical financial analysis in order for
stockholders to make a fully informed decision whether to vote in
favor of the proposed transaction or seek appraisal needed by the
shareholders to make an informed decision on the merger deal.
Aytu is a specialty pharmaceutical company, focused on developing
and commercializing novel products in the field of hypogonadism
(low testosterone), cough and upper respiratory symptoms, insomnia,
and male infertility. Defendants are the board of directors of
Aytu. [BN]
Plaintiff is represented by:
Juan E. Monteverde, Esq.
Miles D. Schreiner, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Avenue, 59th Floor
New York, NY 10118
Telephone: (212) 971-1341
Email: jmonteverde@monteverdelaw.com
mschreiner@monteverdelaw.com
- and -
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
The Nemours Building
1007 N. Orange Street, Suite 1120
Wilmington, DE 19801
Tel: (302) 984-3800
Email: bbennett@coochtaylor.com
BARNES & NOBLE: Hebert Seeks to Certify Background Checks Suit
--------------------------------------------------------------
In the class action lawsuit styled as Vicki Hebert, an individual,
on behalf of herself and all others similarly situated and as a
representative plaintiff, the Plaintiff, vs. Barnes & Noble, Inc.;
and Does 1 through 10, the Defendants, Case No.
3:19-cv-00591-BEN-JLB (S.D. Cal.), the Plaintiff will move the
Court on Jan. 13, 2019, for an order:
1. certifying the case as a class action;
2. appointing Vicki Hebert as Class Representative; and
3. appointing Peter R. Dion-Kindem and Peter R. Dion-Kindem,
P.C., Lonnie C. Blanchard III and The Blanchard Law Group,
APC, and Brandon Hill and Wenzel Fenton Cabassa PA as Class
Counsel.
The Plaintiff and the putative class of more than 27,826
individuals are job applicants and employees for whom Defendant
obtained background checks for employment purposes without
following basic requirements of the Fair Credit Reporting Act,
specifically 15 U.S.C. section.
Barnes & Noble, Inc., is an American bookseller. It is a Fortune
1000 company and the bookseller with the largest number of retail
outlets in the United States. As of March 7, 2019, the company
operates 627 retail stores in all 50 U.S. states.[CC]
Attorneys for the Plaintiff are:
Peter R. Dion-Kindem, Esq.
THE DION-KINDEM LAW FIRM
PETER R. DION-KINDEM, P. C.
2945 Townsgate Road, Suite 200
Westlake Village, CA 91361
Telephone: (818) 883-4900
E-mail: peter@dion-kindemlaw.com
- and -
Lonnie C. Blanchard, III, Esq.
THE BLANCHARD LAW GROUP, APC
3579 East Foothill Blvd., No. 338
Pasadena, CA 91107
Telephone: (213) 599-8255
Facsimile: (213) 402-3949
E-mail: lonnieblanchard@gmail.com
BETANCOURT AUTO SALES: Melillo Hits Illegal Telemarketing SMS Ads
-----------------------------------------------------------------
Alan Melillo, individually and on behalf of all others similarly
situated, Plaintiff, v. Betancourt Auto Sales, Corp., Defendant,
Case No. 19-cv-25175 (S.D. Fla., December 17, 2019), seeks
statutory damages, punitive damages, costs and attorney fees for
violation of the Telephone Consumer Protection Act.
Betancourt is an automotive dealership that sells vehicles for
individuals and businesses. To promote its services, it engages in
unsolicited SMS ads sent en masse via an auto dialer. Melillo did
not give express consent to receive such texts. [BN]
Plaintiff is represented by:
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
19495 Biscayne Blvd #607
Aventura, FL 33180
Telephone: (305) 975-3320
Email: scott@edelsberglaw.com
- and -
Andrew J. Shamis, Esq.
Garrett O. Berg, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 400
Miami, FL 33132
Telephone: 305-479-2299
Email: ashamis@shamisgentile.com
gberg@shamisgentile.com
BOSMAN TRUCKING: Court Grants Stage-One Conditional Certification
-----------------------------------------------------------------
In the class action lawsuit styled as Martaneze Johnson, et al.,
the Plaintiffs, vs. Bosman Trucking, Inc., et al., the Defendants,
Case No. 1:19−cv−02066 (N.D. Ill.), the Hon. Judge Robert W.
Gettleman entered an order granting Plaintiffs' motion for
stage-one conditional certification.
According to the docket entry made by the Clerk, a motion hearing
was held on Dec. 4, 2019. The Plaintiffs' motion for stage-one
conditional certification and notice to putative class members is
granted by agreement.
The parties are to file a proposed order with the court to set
further dates.
Bosman is in the trucking, except local industry in Bensenville,
Illinois.[CC]
BOXWOOD MERGER: Wolf Seeks to Enjoin Acquisition of Atlas TC
------------------------------------------------------------
JACK WOLF, Individually and On Behalf of All Others Similarly
Situated, Plaintiff v. BOXWOOD MERGER CORP., STEVE M. KADENACY,
DANIEL E. ESTERS, JOSEPH E. REECE, RICHARD A. GADBOIS, and ALAN P.
KRUSI, Defendants, Case No. 1:19-cv-02184-UNA (D. Del., Nov. 22,
2019), seeks to enjoin the Defendants from consummating or closing
a proposed transaction, pursuant to which Atlas TC Holdings, LLC,
et al., will become a wholly-owned indirect subsidiary of Boxwood.
On August 12, 2019, Boxwood's Board of Directors caused Boxwood to
enter into an agreement with Atlas TC Holdings, LLC, Atlas TC Buyer
LLC, Atlas Intermediate Holdings LLC, and Atlas Technical
Consultants Holdings LP. Pursuant to the terms of the Agreement,
Atlas will become a wholly-owned indirect subsidiary of Boxwood.
On November 12, 2019, the Defendants filed a proxy statement with
the United States Securities and Exchange Commission, which
recommends that Boxwood's stockholders vote to approve the Proposed
Transaction at a special meeting of stockholders scheduled on
December 12, 2019. Additionally, as set forth in the Proxy
Statement, Boxwood's public stockholders must decide whether to
submit requests to redeem all or a portion of their public shares
for cash if the Proposed Transaction is consummated.
The Plaintiff, which owns Boxwood common stock, alleges that the
Proxy Statement omits material information with respect to the
Proposed Transaction, which renders the Proxy Statement false and
misleading. Hence, the Plaintiff asserts that the Defendants
violated Sections 14(a) and 20(a) of the Securities Exchange Act of
1934 in connection with the Proxy Statement. Accordingly, Boxwood's
stockholders are unable to decide whether to approve the Proposed
Transaction and whether to redeem their shares for cash, the
Plaintiff asserts.
With respect to Atlas's financial projections, the Proxy Statement
fails to disclose: (i) all line items used to calculate adjusted
EBITDA and free cash flow; and (ii) a reconciliation of all
non-GAAP to GAAP metrics, according to the complaint. The Proxy
Statement also fails to disclose a fair summary of any financial
analyses the Individual Defendants considered and relied upon in
coming to their decision to approve the Proposed Transaction,
including any analyses performed by Boxwood's financial advisors,
Greenhill & Co. and Macquarie Capital.
Boxwood is a blank check company that was formed for the purpose of
effecting a merger, capital stock exchange, asset acquisition,
stock purchase, reorganization, or similar business combination
with one or more businesses.[BN]
The Plaintiff is represented by:
Gina M. Serra, Esq.
Seth D. Rigrodsky, Esq.
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
E-mail: sdr@rl-legal.com
bdl@rl-legal.com
gms@rl-legal.com
- and -
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (484) 324-6800
Facsimile: (484) 631-1305
E-mail: rm@maniskas.com
CANADIAN COUNTY, OK: White et al. Seek to Certify Detainees Class
-----------------------------------------------------------------
In the class action lawsuit styled as MISTY WHITE, JERMAINE
BRADFORD, JANARA MUSGRAVE, LANDON PROUDFIT, BRADLEY BARBER, JR.,
and DAKOTA KAPPUS, On behalf of themselves and all others similarly
situated, and OKLAHOMA STATE CONFERENCE, NAACP, the Plaintiffs, vs.
HON. PAUL HESSE, in his official capacity as presiding District
Court Judge; HON. JACK MCCURDY, in his official capacity as
District Court Judge; HON. BARBARA HATFIELD; HON. CHARLES GASS;
HON. KHRISTAN STRUBHAR, in their official capacities as Special
District Judges in the Canadian County District Court; and CANADIAN
COUNTY DISTRICT COURT, 26TH JUDICIAL DISTRICT, the Defendants, Case
No. 5:19-cv-01145-R (W.D. Okla.), the Plaintiffs ask the Court for
an order certifying these class and subclass:
Primary Class:
"all arrestees who are detained by Canadian County from the
time of the filing of the Complaint through the final
resolution of this case, for whom a secured financial condition
of release has been set, without the presence of counsel, and
who cannot afford the amount necessary for release on the
secured money bail"; and
Disability Subclass:
"all arrestees with a disability, as defined in the Americans
with Disabilities Act and Rehabilitation Act, who are detained
by Canadian County from the time of the filing of the Complaint
through the final resolution of this case, for whom a secured
financial condition of release has been set, without the
presence of counsel, and who cannot afford the amount necessary
for release on the secured money bail."[CC]
Attorneys for the Plaintiffs are:
Twyla Carter, Esq.
Brandon J. Buskey, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, CRIMINAL LAW REFORM PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2500
E-mail: tcarter@aclu.org
bbuskey@aclu.org
- and -
Claudia Center, Esq.
Zoe Brennan-Krohn, Esq.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION, DISABILITY RIGHTS PROGRAM
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0762
E-mail: ccenter@aclu.org
zbrennan-krohn@aclu.org
- and -
Megan Lambert, Esq.
Ryan Kiesel, Esq.
Michael Redman, Esq.
AMERICAN CIVIL LIBERTIES UNION OF
OKLAHOMA FOUNDATION
P.O. Box 13327
Oklahoma City, OK 73113
Telephone: (405) 525-3831
E-mail: mlambert@acluok.org
rkiesel@acluok.org
mredman@acluok.org
- and -
Blake Johnson, Esq.
Tyler Box, Esq.
Weston Watts, Esq.
Justin Williams, Esq.
Clayburn Curtis, Esq.
Laura Beth Cohen, Esq.
OVERMAN LEGAL GROUP, PLLC
809 NW 36 th St.
Oklahoma City, OK 73118
Telephone: (405) 605-6718
E-mail: blakejohnson@overmanlegal.com
tylerbox@overmanlegal.com
westonwatts@overmanlegal.com
justinwilliams@overmanlegal.com
claycurtis@overmanlegal.com
- and -
Aaron Lewis, Esq.
Amia Trigg, Esq.
Marta Cook, Esq.
COVINGTON & BURLING LLP
1999 Avenue of the Stars
Los Angeles, CA 90067-4643
Telephpone: (424) 332-4800
E-mail: alewis@cov.com
atrigg@cov.com
mcook@cov.com
lcohen@cov.com
CBC RESTAURANT: Pardue, et al. Seek to Certify Six FLSA Classes
---------------------------------------------------------------
In the class action lawsuit styled as AMBER PARDUE and JENNIFER
VARGAS, on behalf of themselves and all others similarly situated,
the Plaintiffs, vs. CBC RESTAURANT CORP, a Delaware Corporation;
JULIANA ZHU, an individual; and DOES 1 through 100, inclusive, Case
No. 2:19-cv-03920-R-SK (C.D. Cal.), the Plaintiffs will move the
Court Jan. 6, 2020, for an order certifying these classes:
Class 1 (Non-Exempt Class – Rancho Cucamonga Location):
"all current and former non-exempt employees of Corner Bakery
within the State of California that worked at or from the
Rancho Cucamonga Location at any time commencing four years
preceding the filing of Plaintiffs' original complaint in Los
Angeles Superior Court on February 7, 2014 (Filing Date) up
until the time that notice of the class action is provided to
the class";
Class 2 (Meal Period Class – Rancho Cucamonga Location):
"all current and former non-exempt employees of Corner Bakery
within the State of California working at or from the Rancho
Cucamonga Location at any time commencing four years preceding
the Filing Date up until the time that notice of the class
action is provided to the class who worked shifts of five hours
or more";
Class 3 (Rest Period Class – Rancho Cucamonga Location):
"all current and former non-exempt employees of Corner Bakery
within the State of California working at or from the Rancho
Cucamonga Location at any time commencing four years preceding
the Filing Date up until the time that notice of the class
action is provided to the class, who worked shifts of 3.5 hours
or more";
Class 4 (Late Pay Class – Rancho Cucamonga Location):
"all former non-exempt employees of Corner Bakery within the
State of California working at or from the Rancho Cucamonga
Location at any time commencing three years preceding the
Filing Date up until the time that notice of the class action
is provided to the class, who had their time entries edited or
clocked out for a rest period"'
Class 5 (Wage Statement Class – Rancho Cucamonga Location):
"all current and former non-exempt employees of Corner Bakery
within the State of California working at or from the Rancho
Cucamonga Location to whom, at any time commencing one year
preceding the Filing Date until the time that notice of the
class action is provided to the class, were provided with
wage statements"; and
Class 6 (UCL Class – Rancho Cucamonga Location):
"all current and former non-exempt employees of Corner Bakery
within the State of California working at or from the Rancho
Cucamonga Location at any time from the Filing Date until the
time that notice of the action is provided to the class".
Putative class members are required to use an electronic
timekeeping system to track when they start their shift, end their
shift, and when they begin and end their meal periods.
Throughout the Class Period, Corner Bakery has maintained a
consistent policy that employees' time entries may only be edited
by a manager so long as the time edit is documented, signed by the
manager, and signed by the employee whose time is edited.
Nevertheless, Corner Bakery routinely edited putative class
members' time entries to their detriment and without their consent,
the lawsuit says.[CC]
Attorneys for the Plaintiffs are:
David D. Bibiyan, Esq.
Diego Aviles, Esq.
BIBIYAN LAW GROUP, P.C.
1801 Century Park East, Suite 2600
Los Angeles, CA 90067
Telephone: (310) 438-5555
Facsimile: (310) 300-1705
E-mail: david@tomorrowlaw.com
diego@tomorrowlaw.com
CHICAGO, IL: Ali Seeks to Certify Class Action over Bail Policy
---------------------------------------------------------------
In the class action lawsuit styled as Khalid Abdullah Ali, the
Plaintiff, vs. City of Chicago, et al., the Defendants, Case No.
1:19-cv-00022 (N.D. Ill.), the Plaintiff moves the Court for an
order certifying the case as a class action for:
"all persons who, on and after January 1, 2017, (a) were
detained by police officers of the City of Chicago on a warrant
issued by a judge of the State of Illinois sitting outside of
Cook County for which the judge had set an amount of cash bail,
(b) were not permitted to post bond at the police station, and
(c) were released after an appearance before a judge of the
Circuit Court of Cook County without being held at the Cook
County Jail."
The Plaintiff drives a taxicab in the City of Chicago. Two Chicago
police officers saw plaintiff made an illegal turn on April 15,
2018. The officers made a traffic stop and conducted a "name check"
to see if plaintiff was the subject of an outstanding warrant. The
check indicated that a person with plaintiff's name was sought on a
warrant issued by a Judge in DuPage County, Illinois.
The officers took plaintiff into custody and transported him to the
police station. There, the arresting officers and their supervisors
determined that plaintiff was the person sought in the warrant.
The DuPage County judge who issued the warrant had set bond at
$150. The Plaintiff had more than $400 when he was arrested, but
the officers did not permit plaintiff to post bond because of an
express municipal policy of the City of Chicago.
The Plaintiff's counsel estimate that there are more than 2,942
persons who, from January 1, 2017 through June 30, 2019, were
detained on a warrant, not permitted to post bond at the police
station, and were released after an appearance before a judge of
the Circuit Court of Cook County without being processed into the
Cook County Jail.
Counsel identified these persons from data produced by the Sheriff
of Cook County in response to a request under the Illinois Freedom
of Information Act.[CC]
Attorneys for the Plaintiff are:
Kenneth N. Flaxman, Esq.
Joel A. Flaxman, Esq.
200 S Michigan Ave, Ste 201
Chicago, IL 60604
- and -
Bret A. Kabacinski, Esq.
Jonathan C. Green, Esq.
CITY OF CHICAGO DEPARTMENT OF LAW
FEDERAL CIVIL RIGHTS LITIGATION DIVISION
30 N. LaSalle, Suite 900
Chicago, IL 60602
Telephone: (312) 742-1842
COINBASE INC: Accord in Cryptsy Account Owners' Suit Okayed
-----------------------------------------------------------
In the class action lawsuit styled as BRANDON LEIDEL, individually,
and on behalf of all others similarly situated, the Plaintiff, vs.
COINBASE, INC., a Delaware corporation d/b/a, Global Digital Asset
Exchange (GDAX), the Defendant, Case No. 9:16-cv-81992-KAM (S.D.
Fla.), the Hon. Judge Kenneth A. Marra entered an order:
a. certifying a class for settlement purposes;
b. granting the motion for preliminary approval of class
action settlement;
c. directing the issuance of class notice, and scheduling
a final approval hearing.
1. Preliminary Approval
The Court preliminarily approves the Settlement entered into
by the Parties, and the Settlement Agreement appended to the
Motion. The Court finds that the Settlement was of informed,
good-faith, arms'-length negotiations between the Parties and
their counsel and was completed with the assistance of the Hon.
Howard Tescher (ret.), an experienced mediator with particular
expertise in complex commercial and financial disputes.
2. Certification of the Settlement Class
The Settlement Class shall consist of:
"all Cryptsy account owners who held bitcoin, other digital
currencies or cryptocurrencies, or any other asset on the
Cryptsy platform as of November 1, 2015 to the present".
Excluded from the Class are: (1) employees of Cryptsy,
including its shareholders, officers and directors and members
of their immediate families; (2) employees of COINBASE,
including its shareholders, officers and directors and members
of their immediate families; any judge to whom this action is
assigned and the judge's immediate family; (3) persons who
timely and validly opt to exclude themselves from the Class;
and (4) any person or entity that opened an account at Cryptsy
after October 4, 2015, which is the last date on which any of
the Cryptsy Defendants used any of the accounts maintained on
the Coinbase platform to exchange Bitcoin for U.S. dollars.
The Settlement Class Period shall commence on November 1, 2015
and shall continue through the date of the final approval
hearing in this action.
3. Designation of Class Representative
Brandon Liedel is designated as representative of the
Settlement Class for the sole purpose of seeking a settlement
of the Action.
4. Designation of Class Counsel
The law firms of Wites Law Firm and Silver Miller, and their
respective counsel, Marc A. Wites, and David C. Silver, are
vhereby designated as Class Counsel for the Settlement Class.
5. Final Approval Hearing
A hearing regarding final approval of the Settlement Agreement
will be held at on April 17, 2020 at 10:00 a.m. before the Hon.
Kenneth A. Marra in Courtroom No. 4 at the Paul G. Rogers
Federal Building and US Courthouse, 701 Clematis Street, West
Palm Beach, FL 33401.
6. Class Notice
The Court approves and directs the issuance of notice to the
Settlement Class.
7. Objections and Appearances
Any Settlement Class Member who wishes to object to the
Settlement Agreement must do so in writing and must file with
the Clerk of Court and serve on Class Counsel and Defendant's
Counsel, at the addresses listed below:
For Plaintiff and Settlement Class:
Marc Wites, Esq.
WITES LAW FIRM
4400 N. Federal Highway
Lighthouse Point, FL 33064
Telephone: (954) 570-8989
Facsimile: (954) 354-0205
For Defendant Coinbase:
Laura A. Stoll, Esq.
Galen A. Phillips, Esq.
Goodwin Procter LLP
601 South Figueroa Street, 41st Floor
Los Angeles, CA 90017
Telephone: (213) 426-2625
Facsimile: (213) 623-1673
8. Attorneys' Fees and Expenses, and Incentive Awards
Defendant has agreed not to oppose an application for the award
of Attorneys' Fees not to exceed one-third of the Settlement
Fund, plus costs and expenses.
The Plaintiff and Class Counsel agree not to seek an award of
Attorneys' Fees greater than one-third of the Settlement Fund,
plus costs and expenses in the Action.
Defendant also agreed not to oppose the application for an
incentive award of $2,500.00 for the Brandon Leidel for his
work and assistance in this Action.
Plaintiff and Class Counsel agreed not to seek an incentive
award in excess of $2,500.00 for Mr. Leidel.
9. Preliminary Injunction
All Settlement Class Members are hereby preliminarily enjoined
from directly or indirectly (i) filing, commencing,
prosecuting, intervening in, or participating in (as class
members or otherwise), any lawsuit in any jurisdiction for the
Released Claims; or (ii) organizing any Settlement Class
Members, or persons who would otherwise fall within the
definition of the Settlement Class but who request exclusion
from the Settlement Class, into a separate class for purposes
of pursuing as a purported class action any lawsuit (including
by seeking to amend a pending complaint or counterclaim to
include class allegations, or seeking class certification in a
pending action) based on or relating to the claims and causes
of action, or the facts and circumstances relating thereto, in
the Action and/or the Released Claims.
10. Termination of Settlement
The Order shall become null and void, and shall be without
prejudice to the rights of the Parties, all of whom shall be
restored to their respective positions existing immediately
before this Court entered this Order, if (i) the proposed
Settlement is not finally approved by the Court, or do not
become Final, pursuant to the terms of the respective
Settlement Agreement; or (ii) the Settlement Agreement is
terminated pursuant to the terms of the Settlement Agreement
for any reason.
11. Use of Order Following Termination of Settlement
The Order shall be of no force and effect if the Settlement
does not become Final and shall not be construed or used as an
admission, concession, or declaration by or against any
Defendant of any fault, wrongdoing, breach, liability, or
appropriateness of contested class certification, or by or
against any Plaintiff or the Settlement Class Members, or
persons who would otherwise fall within the definition of the
Settlement Class but who request exclusion from the Settlement
Class, that their claims lack merit or that the relief
requested in the Second Amended Class Complaint in this Action
is inappropriate, improper, or unavailable, or as a waiver by
any party of any defenses they may have.[CC]
CREDIT CONTROL: Cartmell Seeks to Certify Class
-----------------------------------------------
In the class action lawsuit styled as WILLIAM CARTMELL, on behalf
of himself and all others similarly situated, the Plaintiff, vs.
CREDIT CONTROL, LLC, the Defendant, Case No. 5:19-cv-01626-JFL
(E.D. Pa.)., the Plaintiff move the Court for an order granting
Plaintiff's Motion to Certify the Class pursuant to Federal Rule of
Civil Procedure 23.
Credit Control is a St. Louis credit collection service that offers
debt collections, accounts receivables management, and
security.[CC]
The Plaintiff is represented by:
Ari H. Marcus, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Telephone: (732)695-3282
Facsimile: (732) 298-6256
E-mail: Ari@MarcusZelman.com
DON VITO: Final Approval of Class Action Settlement Sought
----------------------------------------------------------
RODRIGO CAMILO, an individual, ALVARO CAMILO, an individual,
RICARDO G. SANCHEZ, an individual, JOSE MANUEL LOPEZ, an
individual, the Plaintiffs, vs. SERVERO C. OZUNA, an individual,
DON VITO OZUNA FOOD CORPORATION, a California corporation, the
Defendants, Case No. 5:18-cv-02842-VKD (N.D. Cal.), the Plaintiffs
will move the Court on March 3, 2020, for an order granting final
approval of the class action settlement, attorneys' fees, costs and
enhancement payments.
Class counsel believes this settlement is a reasonable compromise
of the class claims, and well within the percentile ranges of the
total available damages that have been approved in other class
settlements (approving a settlement of $11.7 million where the
maximum range of damages was $5,000 for each of the alleged 300,000
instances of unlawful recording violations ($1.5 billion), equaling
approximately 0.78% of the total demand and approximately $800 per
class member).
In this case, the Plaintiff's counsel is requesting service awards
for each Plaintiff in the amount of $5000 per person. Courts
routinely approve incentive awards to compensate named plaintiffs
for the services they provide and the risks they incurred during
the course of the class action litigation Vasquez v. Coast Valley
Roofing, Inc. (E.D. Cal. 13 2010). Five thousand dollars seems like
an adequate sum considering the Plaintiffs the amount of time the
Plaintiffs spent.[CC]
Attorneys for the Plaintiffs are:
James Dal Bon, Esq.
LAW OFFICE OF JAMES DAL BON
606 N. 1ST St.
San Jose, CA 95112
Telephone: (408) 466-5845
Facsimile: (408) 286-7111
- and -
Victoria L.H. Booke, Esq.
BOOKE & AJLOUNY
606 North First Street
San Jose, CA 95112
Telephone: (408) 286-7000
Facsimile: (408) 286-7111
E-mail: vbooke@bookelaw.com
ELITE EYE: Court Certifies Class of Medical Assistants
------------------------------------------------------
DYLAN WOOD, Individually and on Behalf of All Others Similarly
Situated, the PLAINTIFF, vs. ELITE EYE CARE & OPTICAL, LLC, and DR.
CADE M. WILSON, the DEFENDANTS, Case No. 3:19-cv-00026-DPM (E.D.
Ark.), the Hon. Judge D.P. Marshall entered an order conditionally
certifying a class of:
"all persons who work or worked for Elite Eye Care & Optical,
LLC, and Dr. Cade Wilson as full-time hourly employees at any
time since February 8, 2017".
The Court agrees that certain Elite Eye Care employees were subject
to a common wage policy and are similarly situated.
As stipulated, Elite Eye and Wilson must provide plaintiff's
counsel (on an electronic spreadsheet) a list of names, addresses,
and e-mail address of group members.
The stipulated notice, proposed consent forms, email, and reminder
postcard are approved with tweaks.
Remove "Court" from the subject line of the email. Delete the dash
in "hourly paid" each time that phrase appears.
Plaintiff's counsel may send these messages by regular mail and
e-mail, as agreed by the parties. The parties agree to this
schedule:
-- December 20, 2019
Elite Eye Care and Dr. Wilson produce spreadsheet
-- December 27, 2019
Notice period opens
-- March 11, 2020
Opt-in period closes
-- April 10, 2020
Joint Motion to approve and dismiss or Joint Status Report
Dylan Wood worked as a medical assistant for Elite Eye Care between
December 2017 and January 2019. Wood says he was paid hourly,
worked more than forty hours a week, and was not paid any extra for
his overtime work. Wood moved to conditionally certify a collective
action.[CC]
EQ3 LTD: Faces Muhammad Suit Over Violation of Disabilities Act
---------------------------------------------------------------
A class action lawsuit has been filed against EQ3 Ltd. The case is
captioned as Rasul Muhammad, on behalf of himself and all others
similarly situated, Plaintiff v. EQ3 Ltd., Defendant, Case No.
1:19-cv-07743 (N.D. Ill., Nov. 23, 2019).
The case is assigned to the Hon. Sharon Johnson Coleman.
The suit alleges violation of the Americans with Disabilities Act.
EQ3 designs, produces and sells modern furniture.[BN]
The Plaintiff is represented by:
Raymond Joseph Kramer, III, Esq.
KRAMER LLC
225 West Washington, Suite 2200
Chicago, IL 60606
Telephone: (773) 910-1104
E-mail: joe@rjklawyer.com
EXELON CORPORATION: Sellers Seeks to Certify FLSA Collective
------------------------------------------------------------
In the class action lawsuit styled as GREGORY SELLERS, individually
and on behalf of other similarly situated employees, the
Plaintiffs, vs. EXELON CORPORATION, WORK MANAGEMENT, INC., BUCHER &
CHRISTIAN CONSULTING, INC., and MAXETA TECHNOLOGIES, INC.
Defendants, Case No. 1:18-cv-07179 (N.D. Ill.) the Plaintiffs ask
the Court for an order:
1. granting conditional certification of the proposed
collective action pursuant to Section 216(b) of the Fair
Labor Standards Act;
2. directing Defendants to produce a computer-readable data
containing the names, last known mailing addresses, last
known personal and work email addresses, telephone numbers
(both landline and mobile), and dates of employment;
3. authorizing the issuance of notice to all collective members
by mail, email, and text message and an identical reminder
notice via these means half-way through the opt-in period;
4. authorizing posting of the notice at jobsites;
5. allowing for a 60-day opt-in period; and
6. granting such Order, further, or different relief as the
Court deems just and proper.[CC]
Attorneys for the Plaintiffs and Others Similarly Situated are:
Richard M. Schreiber, Esq.
Michael A. Josephson, Esq.
JOSEPHSON DUNLAP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
- and -
Richard (Rex) J. Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
- and -
Douglas M. Werman, Esq.
Maureen A. Salas, Esq.
WERMAN SALAS P.C.
77 West Washington, Suite 1402
Chicago, IL 60602
Telephone: (312) 419-1008
FACEBOOK INC: Adkins Seeks to Certify Class of Users
----------------------------------------------------
In the class action lawsuit styled as STEPHEN ADKINS, an individual
and Michigan resident, on behalf of himself and all others
similarly situated, the Plaintiff, vs. FACEBOOK, INC., the
Defendant, Case No. 3:18-cv-05982-WHA (N.D. Cal.), the Plaintiff
ask the Court for an order granting his motion for class
certification on behalf of:
"all Facebook users whose personally identifiable information
(PII) was part of the September 2018 Data Breach".
The Plaintiff seeks class damages under Fed.R.Civ.P. Rule 23(b)(3),
specifically damages related to the diminished value of their PII.
The lawsuit also wants Facebook to provide money for credit
monitoring.
Facebook has made billions annually off its global platform. Users
provide various forms of PII that third parties access to target
ads.
However, Facebook -- whose motto was "move fast, break things" --
moved too fast and created vulnerabilities to its platform that
allowed hackers to steal PII from at least 29 million users
worldwide, including more than four million users in the United
States.
Among the PII looted were class members' names, email addresses,
telephone numbers, and for nearly half of the class, work and
education history, relationship status, date of birth, hometown,
and other historical PII, neatly packaged in a centralized format,
providing ease of exploitation.
Facebook is an American online social media and social networking
service based in Menlo Park, California and a flagship service of
the namesake company Facebook, Inc.[BN]
Interim Co-Lead Counsel for Plaintiff are:
Andrew N. Friedman, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave. NW, 5th Floor
Washington, DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
E-mail: afriedman@cohenmilstein.com
- and -
John A. Yanchunis, Esq.
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
201 N. Franklin St., 7th Floor
Tampa, FL 33602
Telephone: 813 2223-5505
Facsimile: 813 2223-5402
E-mail: jyanchunis@forthepeople.com
- and -
Ariana J. Tadler, Esq.
TADLER LAW, LLP
One Penn Plaza
New York, NY 10119
Telephone: (212) 946-9453
Facsimile: (212) 273-4375
E-mail: atadler@tadlerlaw.com
Other Plaintiff's Counsel are:
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
Trisha K. Monesi, Esq.
CAPSTONE LAW, APC
Capstone Law APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
Trisha.Monesi@capstonelawyers.com
- and -
David S. Casey, Jr., Esq.
Gayle M. Blatt, Jr., Esq.
Jeremy Robinson, Jr., Esq.
CASEY GERRY SCHENK
FRANCAVILLA BLATT & PENFIELD, LLP
110 Laurel Street
San Diego, CA 92101
Telephone: (619) 238-1811
Facsimile: (619) 544-9232 fax
E-mail: dcasey@cglaw.com
gmb@cglaw.com
jrobinson@cglaw.com
- and -
Clayeo C. Arnold, Esq.
Joshua H. Watson, Esq.
A PROFESSIONAL LAW CORPORATION
865 Howe Avenue
Sacramento, CA 95825
Telephone: 916-777-7777
Facsimile: 916-924-1829
E-mail: carnold@justice4you.com
jwatson@justice4you.com
- and -
Douglas J. McNamara, Esq.
Karina G. Puttieva, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Ave. NW
East Tower, 5th Floor
Washington, DC 20005
Telephone: (202) 408-4600
Facsimile: (202) 408-4699
E-mail: dmcnamara@cohenmilstein.com
kputtieva@cohenmilstein.com
- and -
Jeremiah Frei-Pearson, Esq.
Andrew C. White, Esq.
FINKELSTEIN, BLANKENSHIP, FREI-PEARSON & GARBER LLP
445 Hamilton Ave., Suite 605
White Plains, New York 10601
Telephone: (914) 298-3281
Facsimile: (914) 908-6709
E-mail: Jfrei-pearson@fbfglaw.com
awhite@fbfglaw.com
- and -
Ivy Ngo, Esq.
Kelly Hyman, Esq.
FRANKLIN D. AZAR & ASSOCIATES
14426 East Evans Ave
Aurora, CO 80014
Telephone: 303-757-3300
Facsimile: 720-213-5131
E-mail: ngoi@fdazar.com
hymank@fdazar.com
- and -
Marc Godino, Esq.
Brian Murray, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: 310-201-9150
Facsimile: 310-432-1495
E-mail: mgodino@glancylaw.com
bmurray@glancylaw.com
- and -
Jasper D. Ward, Esq.
JONES WARD PLC
1205 E Washington St, Suite 111
Louisville, KY 40206
Telephone: 502-882-6000
E-mail: jasper@jonesward.com
- and -
Kate M. Baxter-Kauf, Esq.
Arielle S. Wagner, Esq.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 596-4097
Facsimile: (612) 339-0981
E-mail: kmbaxter-kauf@locklaw.com
aswagner@locklaw.com
- and -
Gary S. Graifman, Esq.
Jay Brody, Esq.
KANTROWITZ GOLDHAMER & GRAIFMAN, P.C.
747 Chestnut Ridge Road
Chestnut Ridge, NY 10977
Telephone: (845) 356-2570
Facsimile: (845) 356-4335
E-mail: ggraifman@kgglaw.com
jbrody@kgglaw.com
- and -
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
MIGLIACCIO & RATHOD LLP
412 H Street N.E., Ste. 302
Washington, DC 20002
Telephone: (202) 470-3520
E-mail: nmigliaccio@classlawdc.com
jrathos@classlawdc.com
- and -
Ariana J. Tadler, Esq.
TADLER LAW LLP
ATadler@Tadlerlaw.com
One Penn Plaza
New York, NY
New York, NY 10119
Telephone: (212) 946-9453
Facsimile: (212) 273-4375
- and -
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
KOHN, SWIFT & GRAF, P.C.
jshub@kohnswift.com
klaukaitis@kohnswift.com
1600 Market Street, Suite 2500
Philadelphia, PA 19103-7225
Telephone: (215) 238-1700
Facsimile: (215) 238-1968
- and -
Paul C. Whalen, Esq.
LAW OFFICE OF PAUL C. WHALEN, P.C.
768 Plandome Road
Manhasset, NY 11030
Telephone: (516) 426-6870
Facsimile: (212) 658-9685
E-mail: paul@paulwhelan.com
- and -
Charles Reichmann, Esq.
LAW OFFICES OF REICHMANN
16 Yale Circle
Kensington, CA 94708
Telephone: (415) 373-8849
E-mail: Cpreichmann@yahoo.com
- and -
Karen Hanson Riebel, Esq.
CHARLES LOCKRIDGE GRINDAL NAUEN PLLP
Facsimile: (949) 720-1292
E-mail: khriebel@locklaw.com
- and -
Ryan J. McGee, Esq.
Jean S. Martin, Esq.
Kenya J. Reddy, Esq.
MORGAN & MORGAN
COMPLEX LITIGATION GROUP
201 N. Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 223-5402
E-mail: rmcgee@ForThePeople.com
jeanmartin@ForThePeople.com
kreddy@forthepeople.com
- and -
Daniel S. Robinson, Esq.
Wesley K. Polischuk, Esq.
ROBINSON CALCAGNIE, INC.
Michael W. Olson (312857)
19 Corporate Plaza Drive
Newport Beach, CA 92660
Telephone: (949) 720-1288
9430 W. Olympic Blvd., Suite 400
Beverly Hills, CA 90212
Telephone: (310) 209-2468
Facsimile: (310) 209-2087
E-mail: drobinson@robinsonfirm.com
wpolischuk@robinsonfirm.com
- and -
Patrice L. Bishop, Esq.
Melissa R. Emert
STULL, STULL & BRODY
E-mail: pbishop@ssbla.com
memert@ssbny.com
FRESHONE DISTRIBUTION: McCurdy Seeks Overtime Wages for Drivers
---------------------------------------------------------------
Randy McCurdy Jr., individually and on behalf of all those
similarly situated, Plaintiff v. FreshOne Distribution Services,
LLC, Defendant, Case No. 3:19-cv-02787-M (N.D. Tex., Nov. 22,
2019), is brought on behalf of the Plaintiff and similarly situated
drivers asserting overtime claims under the Fair Labor Standards
Act.
The proposed class consists of the Defendant's current and former
Drivers, who were paid on an hourly or per route basis and who
worked more than 40 hours in one or more workweek over the previous
three years but were not paid overtime.
The Plaintiff worked for the Defendant and was assigned to deliver
food to the Defendant's customers in Texas. The Plaintiff's job
responsibilities consisted of manual labor tasks in the form of
loading and delivering food.
The Defendant is a food services distribution company.[BN]
The Plaintiff is represented by:
Chris R. Miltenberger, Esq.
THE LAW OFFICE OF CHRIS R. MILTENBERGER, PLLC
1360 N. White Chapel, Suite 200
Southlake, TX 76092-4322
Telephone: 817-416-5060
Facsimile: 817-416-5062
E-mail: chris@crmlawpractice.com
GATESTONE & CO: Murray Sues Over Unsolicited Marketing Texts
------------------------------------------------------------
Michael Murray, on Behalf of Himself and all others similarly
situated, Plaintiff v. Gatestone & Co. International, Inc.,
Defendant, Case No. 2:19-cv-05674-SPL (D. Ariz., Nov. 22, 2019),
alleges that the Defendant promotes and markets its merchandise, in
part, by sending unsolicited text messages to wireless phone users,
in violation of the Telephone Consumer Protection Act.
According to the complaint, the Defendant did not determine if they
had Mr. Murray's "express consent" to robodial his phone, instead
they simply loaded his number into their system and hit "go."
The Plaintiff asserts that he never provided his cellular number to
the Defendant and never gave the Defendant any consent to call him.
The Plaintiff and members of the class are the "called parties."
The Defendant is a debt collector and collects debts for third
party creditors from Phoenix, Arizona. The Defendant's Web site
claims it collects debts for some of the top fortune 100 companies
in the United States.
The Plaintiff is represented by:
David J. McGlothlin, Esq.
Ryan L. McBride, Esq.
KAZEROUNI LAW GROUP, APC
2633 E. Indian School Road, Suite 460
Phoenix, AZ 85016
Telephone: 800-400-6808
Facsimile: 800-520-5523
E-mail: david@kazlg.com
ryan@kazlg.com
- and -
William "Billy" Peerce Howard, Esq.
THE CONSUMER PROTECTION FIRM
4030 Henderson Boulevard
Tampa, FL 33629
Telephone: (813) 500-1500
Facsimile: (813) 435-2369
E-mail: Billy@TheConsumerProtectionFirm.com
- and -
John W. Barrett, Esq.
BAILEY & GLASSER LLP
209 Capitol Street
Charleston, WV 25301
Telephone: 304 345 6555
Facsimile: 304 342 1110
E-mail: JBarrett@baileyglasser.com
GEO GROUP: Ramirez Seeks to Certify Class & Subclass
----------------------------------------------------
In the class action lawsuit styled as RAYMOND RAMIREZ, et al., the
Plaintiffs, vs. THE GEO GROUP, et al., the Defendants, Case No.
3:18-cv-02136-LAB-MSB (S.D. Cal.), the Hon. Judge Larry Alan Burns
entered an order on Dec. 11, 2019:
1. certifying these class and subclass:
Class:
"all current and former employees who worked as a
Correctional Officer or Assistant Shift Supervisor at GEO's
Western Region Detention Facility from August 9, 2014 to
present".
Waiting Time Penalty Subclass:
"all Class Members who separated from their employment with
GEO between August 9, 2014 to present"; and
2. granting the parties' motions to seal and GEO's request
for judicial notice.
Ramirez alleges that GEO violated various provisions of California
labor law by, among other things, failing to provide adequate meal
and rest breaks, failing to reimburse employees for job-related
expenses, and improperly rounding employee time.
GEO Group and its subsidiaries own and operate private prisons
throughout the United States.
From 2000 until 2017, Ramirez served as a corrections officer at
the Western Region Detention Facility in San Diego.
The Western Region Detention Facility is owned by GEO Group
subsidiary, GEO Corrections and Detentions, LLC, and houses between
700 and 770 federal detainees awaiting trial, sentencing, or a
hearing.[CC]
GOLD CLUB TAMPA: Athena Sues Over Illegal Tip Pool
--------------------------------------------------
Steffanie A. (a.k.a. Athena), individually and on behalf of all
others similarly situated, Plaintiff, v. Gold Club Tampa, Inc.,
Michael Tomkovich, Doe Managers 1-3 and Does 4-100, inclusive,
Defendants, Case No. 19-cv-03097, (M.D. Fla., December 17, 2019)
seeks damages for violations of the mandatory minimum wage and
overtime provisions of the Fair Labor Standards Act and for
illegally withholding tips.
Defendants operate an adult-oriented entertainment facility located
at 6222 East Adamo Drive, Tampa, Florida 33619 where Athena worked
as an exotic dancer. She was compensated exclusively through tips
from customers and did not receive payment for any hours worked at
their establishment. However, she was required to share her tips
with other non-service employees who do not customarily receive
tips, including the managers, disc jockeys, and the bouncers,
asserts the complaint. [BN]
The Plaintiff is represented by:
Raymond R. Dieppa, Esq.
FLORIDA LEGAL, LLC
14 Northeast 1st Avenue, Suite 1001
Miami, FL 33132
Telephone: (305) 722-6977
Fax: (786) 870-4030
Email: ray.dieppa@floridalegal.law
- and -
John P. Kristensen, Esq.
KRISTENSEN LLP
12540 Beatrice Street, Suite 200
Los Angeles, CA 90066
Telephone: (310) 507-7924
Fax: (310) 507-7906
Email: john@kristensenlaw.com
- and -
Jarrett Ellzey, Esq.
HUGHES ELLZEY, LLP
1105 Milford Street
Houston, TX 77066
Telephone: (713) 554-2377
Fax: (888) 995-3335
Email: jarrett@hughesellzey.com
HEADWAY TECHNOLOGIES: Faces Stanley Antitrust Suit in N.D. Calif.
-----------------------------------------------------------------
Russell Stanley, John R. Shannon III, Richard Jones, Gregory
Painter, Ann Marie Putzier and Alex Nicholson , individually and on
behalf of a Class of all those similarly situated, Plaintiffs v.
HEADWAY TECHNOLOGIES, INC.; HUTCHINSON TECHNOLOGY, INC.; MAGNECOMP
PRECISION TECHNOLOGY PUBLIC CO. LTD.; NAT PERIPHERAL (DONG GUAN)
CO., LTD.; NAT PERIPHERAL (H.K.) CO., LTD.; NHK SPRING CO., LTD.;
NHK INTERNATIONAL CORP.; NHK SPRING (THAILAND) CO., LTD.; SAE
MAGNETICS (H.K.) LTD.; AND TDK CORPORATION, Defendants, Case No.
3:19-cv-07718 (N.D. Cal., Nov. 22, 2019), seeks damages, injunctive
relief and any other relief available as a result of the
Defendants' violations of federal antitrust, state antitrust,
unfair competition, consumer protection and unjust enrichment
laws.
The Plaintiff brings this action against Defendants--who are
manufacturers and suppliers of Hard disk drives (HDD) suspension
assemblies throughout and into the United States--and their
co-conspirators as a result of their unlawful conduct in
contracting, combining, or conspiring to fix, raise, maintain,
and/or stabilize prices of HDD suspension assemblies from
approximately May 2008 to at least April 2016.
The Defendants' illegal and anticompetitive conduct resulted in
their exchange of pricing information with one another, which they
used to their advantage in their negotiations with U.S. and foreign
customers for the sale of HDD suspension assemblies, which
ultimately became the critical component in HDDs for sale in, or
delivery to, the U.S. and elsewhere.
According to the complaint, NHK and TDK Defendants, along with
their affiliates and/or subsidiaries, have maintained a 90%
dominance of the global market for HDD suspension assemblies.
The potential price-fixing of HDD suspension assemblies have been
the subject of investigations by the United States government as
well as foreign governments since at least 2016, the lawsuit says.
Suspension assemblies are an important component of the HDD because
they hold the recording heads close to the disks and provide the
electrical connection from the recording heads to the hard disk
drives' circuitry.
According to Assistant Attorney General of the Department of
Justice (DOJ) Antitrust Division Makan Delrahim, HDD suspension
assemblies are "critical to the operation and performance of
electronic devices, and their impact on American consumers and
business is direct and substantial."
HDD are incorporated into electronic devices, such as desktop
computers, laptops, gaming consoles, MP3 players, printers, and
copy machines, or sold as stand-alone storage devices. An HDD uses
a magnetic recording head to read from, and write onto, a spinning
disk contained in the hard drive.
Headway Technologies provides recording head products to the
computer harddisk drive industry. The Company provides solutions to
the server, mobile, and desktop segments of the hard disk drive
industry for customers throughout the United States.[BN]
The Plaintiff is represented by:
Mario N. Alioto, Esq.
Joseph M. Patane, Esq.
Lauren C. Capurro, Esq.
TRUMP, ALIOTO, TRUMP & PRESCOTT, LLP
2280 Union Street
San Francisco, CA 94123
Telephone: (415) 563-7200
Facsimile: (415) 346-0679
E-mail: malioto@tatp.com
laurenrussell@tatp.com
- and -
Sylvie K. Kern, Esq.
LAW OFFICES OF SYLVIE KULKIN KERN
2532 Lake Street
San Francisco, CA 94121
Telephone: (415) 221-5763
E-mail: kernantitrustglobal@gmail.com
- and -
Isaac Diel, Esq.
SHARP MCQUEEN PA
Financial Plaza
6900 College Boulevard Suite 285
Overland Park, KS 66211
Telephone: (913) 661-9931
E-mail: idiel@sharpmcqueen.com
- and -
Brian M. Sund, Esq.
MORRISON & SUND PLC
5125 County Road 101, Suite 200
Minnetonka, MN 55345
Telephone: (952) 975-0050
Facsimile: (952) 975-0058
E-mail: bsund@morrisonsund.com
- and -
Lawrence G. Papale, Esq.
LAW OFFICES OF LAWRENCE G. PAPALE
The Cornerstone Building
1308 Main Street, Suite 117
St. Helena, CA 94574
Telephone: 707 963-1704
E-mail: lgpapale@papalelaw.com
HEALTH CARE BRIDGE: Terrell Seeks OT Wages for Home Health Aids
---------------------------------------------------------------
DEEANDRA TERRELL, on behalf of herself and all others similarly
situated, Plaintiff v. HEALTH CARE BRIDGE, INC., HEALTH CARE
BRIDGE, LLC, and HOME HEALTH CARE BRIDGE, LTD., Defendants, Case
No. 1:19-cv-02762 (N.D. Ohio, Nov. 22, 2019), arises from the
non-payment of overtime wages beyond 30 days to non-exempt
employees, including the Plaintiff.
Ms. Terrell is an adult individual, residing in Cuyahoga County,
Ohio, who was jointly employed by the Defendants as a Home Health
Aid from January 2019 to September 15, 2019. She challenges the
Defendants' policies and practices, which violate the Fair Labor
Standards Act and the Ohio Wage Laws.
The Defendants are and have been individually and jointly in the
business of providing home health care.[BN]
The Plaintiff is represented by:
Robi J. Baishnab, Esq.
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
NILGES DRAHER LLC
34 N. High St., Ste. 502
Columbus, OH 43215
Telephone: (614) 824-5770
Facsimile: (330) 754-1430
E-mail: rbaishnab@ohlaborlaw.com
hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
HILLENBRAND INC: Schroeder Seeks Minimum Wages & Overtime Pay
-------------------------------------------------------------
BRIAN SCHROEDER, on behalf of himself and others similarly
situated, PLAINTIFF v. HILLENBRAND, INC.; BATESVILLE CASKET
COMPANY, INC.; BATESVILLE LOGISTICS, INC.; BATESVILLE
MANUFACTURING, INC.; and DOES 1 to 100, Inclusive, DEFENDANTS, Case
No. 19STCV42154 (Cal. Super., Nov. 22, 2019), seeks civil penalties
for the Defendant's violations of the California Labor Code.
The lawsuit arises from the Defendants' failure to pay for all
hours worked at minimum wage and overtime hours worked at the
overtime rate of pay; failure to authorize or permit legally
compliant first meal periods; failure to authorize or permit
legally compliant rest periods; failure to provide accurate wage
statements; failing to timely provide all earned wages; and failure
to timely pay former employees all earned and unpaid wages.
The Defendants employed the Plaintiff as an hourly, non-exempt
employee until May 2019.
Hillenbrand, Inc. is a diversified industrial company with multiple
brands that serve a range of industries across the globe.
Batesville Logistics is a licensed and bonded freight shipping and
trucking company running freight hauling business from Batesville,
Indiana.[BN]
The Plaintiff is represented by:
Joseph Lavi, Esq.
Vincent C. Granberry, Esq.
Anwar D. Burton, Esq.
LAVI & EBRAHIMIAN, LLP
8889 W. Olympic Blvd., Suite 200
Beverly Hills, CA 90211
Telephone: (310) 432-0000
Facsimile: (310) 432-0001
E-mail: ilavi@lelawfirm.com
vgranbeny@lelawfirm.com
aburton@lelawfirm.com
HOLY SEE: Faces Class Action Over Child Abuse Cover Up
------------------------------------------------------
Stephen Hurn, Peter Senatore, Marianne Agnello, Dianne Mondello,
Michael Leonard, Daniel Rice and Tom Sparks, on behalf of
themselves and all persons similarly situated, Plaintiffs, v. The
Holy See (a/k/a the Apostolic See) seeks money damages for
negligence in mandating a policy for its Bishops and Dioceses of
secrecy and concealment in response to allegations and reports of
child sexual abuse by Catholic clergy.
The Holy See is a sovereign territory located within the city of
Rome, Italy and is the government of the Catholic Church worldwide.
Catholic priests were allegedly using their positions and roles in
Catholic parishes and schools to sexually molest children, of which
The Holy See has systematically covering up, asserts the complaint.
[BN]
Plaintiff is represented by:
Stuart S. Mermelstein, Esq.
Jeff Herman, Esq.
Daniel G. Ellis, Esq.
HERMAN LAW
434 W. 33rd St., Penthouse
New York, NY 10001
Telephone: (212) 390-0100
Email: jherman@hermanlaw.com
smermelstein@hermanlaw.com
dellis@hermanlaw.com
JAW ENTERTAINMENT: Etheredge Seeks Minimum, Overtime Wages
----------------------------------------------------------
Ebony Etheredge, individually and on behalf of all others similarly
situated, Plaintiff, v. J.A.W. Entertainment, Inc. and JOE LONG,
Defendants, Case No. 19-cv-25186 (S.D. Fla., December 17, 2019),
seeks unpaid overtime wages, unpaid minimum wages, liquidated
damages and reasonable attorney's fees and costs under the Fair
Labor Standards Act.
Defendants operate an adult entertainment establishment where
Etheridge worked for J.A.W. as an exotic dancer from November 2012
until approximately May 27, 2018. Etheridge was not paid the
minimum wage and for those hours worked in excess of forty hours
within a work week, says the complaint. [BN]
Plaintiff is represented by:
Brian Militzok, Esq.
MILITZOK LAW, P.A.
Wells Fargo Building
4600 Sheridan Street, Suite 402
Hollywood, FL 33021
Tel: (954) 780-8228
Fax: (954) 719-4016
Email: bjm@militzoklaw.com
JOLIET, IL: Ross Seeks to Certify Inmates Suit over Halal Diet
--------------------------------------------------------------
EUGENE ROSS, the Plaintiff, vs. GEORGE ADAMSON, et al., the
Defendants, Case No. 1:17-cv-07756 (N.D. Ill.), the Plaintiff asks
the Court for an order certifying a class of:
"all current Muslim inmates in the State of Illinois
incarcerated by the IDOC, at Stateville and elsewhere, who have
previously requested and been denied a halal diet, including
zabiha-prepared meats."
The Plaintiff is a Muslim inmate incarcerated at Stateville
Correctional Center in Joliet, Illinois, since 1999.
The Plaintiff has requested a halal diet that is consistent with
his religious beliefs as a Muslim, including zabiha-prepared
meats.
On multiple occasions over the past years, Plaintiff has been
denied a halal diet, including zabiha-prepared meats, based on
policies, procedures, or guidelines that do not permit the
provision of a halal/zabiha diet to Muslim inmates, based primarily
on the assertion that other types of meals are available to inmates
instead (such as vegan, lacto-ovo, or kosher), which allegedly
satisfy all the requirements of Islam, the lawsuit says.[CC]
* * *
The Hon. Judge Thomas M. Durkin has entered an order continuing
Plaintiff's motion to certify class, according to the docket entry
made by the Clerk on December 10, 2019.
The Plaintiff is represented by:
Phillip J. Robertson, Esq.
CAIR-CHICAGO
17 N. State St., Ste. 1500
Chicago, IL 60602
Telephone: (312) 212-1520
Facsimile: (312) 212-1530
E-mail: probertson@cair.com
JONES DAY: Tolton et al. Seek to Certify Suit over Equal Pay
------------------------------------------------------------
In the class action lawsuit styled as NILAB RAHYAR TOLTON et al.,
on behalf of themselves and all others similarly situated, the
Plaintiffs, vs. JONES DAY, a General Partnership, the Defendant,
Case No. 1:19-cv-00945-RDM (D. Colo.), the Plaintiffs move the
Court for an order:
1. conditionally certifying an Equal Pay Act collective action;
and
2. authorizing the mailing of notice and consent to join forms
to members of the proposed collective action.
Jones Day is an international law firm based in the United States.
As of 2018, it was the fifth largest law firm in the U.S. and the
13th highest grossing law firm in the world.[CC]
Attorneys for Plaintiffs, the Proposed Classes, and the Proposed
Collective, are:
Kate Mueting, Esq.
Paul Blankenstein
SANFORD HEISLER SHARP, LLP
700 Pennsylvania Ave SE, Suite 300
Washington, DC 20003
Telephone: (202) 499-5206
E-mail: kmueting@sanfordheisler.com
pblankenstein@sanfordheisler.com
- and -
Deborah K. Marcuse, Esq.
David W. Sanford, Esq.
Russell L. Kornblith, Esq.
SANFORD HEISLER SHARP, LLP
111 S. Calvert Street, Ste. 1950
Baltimore, MD 21202
Telephone: (410) 834-7415
Facsimile: (410) 834-7425
E-mail: dmarcuse@sanfordheisler.com
dsanford@sanfordheisler.com
rkornblith@sanfordheisler.com
KDA CONTRACTING: Dismissal of Avgoustidis Shareholder Suit Sought
-----------------------------------------------------------------
In the class action lawsuit styled as DIMITRIOS AVGOUSTIDIS,
individually and a shareholder of MESTA RENOVATION INC., suing in
the right of MESTA RENOVATION INC., Plaintiff v. IOANNIS
PASHALIDIS, DILAWAR ALI KHAN, KDA CONTRACTING CORP., KDA DEVELOPERS
INC., MPJ CONSTRUCTION OF NY INC., PPJ CONSTRUCTION INC., YANNI
CONSTRUCTION OF NY, INC., and YANNI CONSTRUCTION CORP., Defendants,
Case No. 714401/2019 (N.Y. Sup., Filed Aug. 20, 2019), the
Plaintiff moved for case dismissal on Nov. 25, 2019.
The action involves a scheme whereby all of the Defendants,
individually and collectively, acted to wrongfully take the
Plaintiff's money, under the guise of Mesta's hiring the Defendants
as subcontractors and paying the Defendants for construction work
performed by the Defendants.
Plaintiff Dimitrios Avgoustidis was a shareholder of Mesta
Renovation Inc.
The Defendants are doing business in building construction. George
Almiroudis is an officer of Mesta.
The Defendants defrauded Avgoustidis by accepting secret payments
from Almiroudis and paying kickbacks to Almiroudis over the course
of several years, the lawsuit says.
Mr. Almiroudis misused and wasted the corporate assets of Mesta for
his own personal benefit, transferring sums to himself, the
Defendants, and to his sons' company, Kanaris, causing significant
harm to Plaintiffs, according to the complaint.[BN]
The Plaintiff is represented by:
Paul V. Lucas, Jr., Esq.
SACCO & FILLAS, LLP
31-19 Newtown Avenue, 7th Floor
Astoria, NY 11102
Telephone: (718) 269-4853
KOHN LAW: Reitz Sues Over Illegal Debt Collection Practices
-----------------------------------------------------------
ROBERT REITZ, individually and on behalf of all others similarly
situated, Plaintiff v. KOHN LAW FIRM S.C., and MIDLAND FUNDING,
LLC, Defendants, Case No. 2:19-cv-01720 (E.D. Wisc., Nov. 22,
2019), arises from the Defendants' practices in attempting to
collect consumer debts, which are prohibited by the Fair Debt
Collection Practices Act.
Prior to November 27, 2018, Kohn filed a lawsuit, and obtained a
judgment, against Reitz on behalf of Midland Funding in the Circuit
Court of Winnebago County. The lawsuit sought to collect a debt,
which arose out of one or more transactions in which the money,
property, insurance, or services that were the subject of the
transactions were primarily for personal, family, or household
purposes.
Kohn sent Reitz a letter dated November 27, 2018 (the Letter).
Above the salutation, the Letter stated in relevant part: Balance
Due as of November 27, 2018: $2,023.34. Notice: As of the date of
this letter, the above amount remains outstanding. Because of
interest and other charges accruing on the account, the amount due
on the day a payment is made may be greater.
The Plaintiff contends that the "Notice" is materially false,
deceptive, and misleading because it falsely suggests that the
amount of the judgment will increase due to undisclosed "other
charges." The Plaintiff asserts that neither KOHN nor Midland may
legally or contractually impose other charges to the Debt. Midland
will never add other charges to the Debt. KOHN will never add other
charges to the Debt.
The Notice, therefore, deprived Reitz of truthful, non-misleading,
information in connection with the Defendants' attempt to collect
the judgment, the lawsuit says. The Letter creates uncertainty
among unsophisticated consumers because it does not state under
what circumstances Defendants would impose "other charges," the
frequency in which the charges would be imposed, and the amount of
the charges.
The Letter is materially false, deceptive, and misleading to
unsophisticated consumers "because these consumers must often make
difficult decisions about how to use scarce financial resources,
and it is plausible that the fear of 'late charges and other
charges' influence these consumers' choices", the lawsuit added.
When collecting or attempting to collect a debt, the FDCPA demands
the debt collector treat people respectfully, honestly, and fairly
by proscribing its use of: (a) harassing, oppresive, and abusive
conduct; (b) false, deceptive, or misleading means or
representations; and (c) unfair or unconscionable means.
The Plaintiff seeks both individually and on behalf of all others
similarly situated, such relief as is allowed under FDCPA including
statutory damages, attorney fees and costs.
Kohn Law Firm S.C. provides legal services. The company provides
services in various areas, such as credit card, municipal, medical
finance, and consumer debt, as well as repossession actions and
insurance subrogation claims. Kohn Law Firm serves customers in the
United States. Kohn is a law firm that regularly engages in the
collection of defaulted consumer debts, or allegedly defaulted
consumer debts, owed to others.
According to its Web site, http://www.midlandfunding.com/,Midland
is "one of the nation's largest buyers of unpaid debt." Midland
buys large portfolios of charged-off consumer credit card debt from
issuing-banks and credit unions for around 10 cents or less on the
dollar.[BN]
The Plaintiff is represented by:
Francis R. Greene, Esq.
Philip D. Stern, Esq.
Andrew T. Thomasson, Esq.
STERN THOMASSON LLP
3010 South Appleton Road
Menasha, WI 54952
Telephone (973) 379-7500
E-mail: Philip@SternThomasson.com
Andrew@SternThomasson.com
Francis@SternThomasson.com
KRAFT HEINZ: Noohi Files Product Mislabeling Suit
-------------------------------------------------
Narguess Noohi, individually, and on behalf of other members of the
general public similarly situated, Plaintiff, v. The Kraft Heinz
Company, Defendant, Case No. 19-cv-04700 (C.D. Cal., December 17,
2019), seeks damages, injunctive relief and any other available
legal or equitable remedies resulting from common law fraud and
unjust enrichment and violation of California's Unfair Competition
Law.
Kraft Heinz manufactures, advertises, markets, sells, and
distributes drink products throughout California and the United
States under the brand name "Crystal Light Liquid."
Noohi disputes Kraft Heinz's claim that its products does not
contain artificial flavors despite containing artificial Malic
Acid. [BN]
Plaintiff is represented by:
Todd M. Friedman, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard Street, Suite 780
Woodland Hills, CA 91367
Phone: (323) 306-4234
Fax: (866) 633-0228
Email: tfriedman@toddflaw.com
abacon@attorneysforconsumers.com
LENDINGCLUB CORP: Veal Securities Suit Dismissed w/ Leave to Amend
------------------------------------------------------------------
The United States District Court for the Northern District of
California, San Jose Division issued an Order granting Defendants'
Motion to Dismiss in the case captioned MATTHEW VEAL, et al.,
Plaintiffs, v. LENDINGCLUB CORPORATION, et al., Defendants, Case
No. 18-cv-02599-BLF, (N.D. Cal.).
Lead Plaintiffs, XiangHong Ding and Zhenbin Chen, have brought this
federal securities class action on behalf of themselves and all
persons and entities other than Defendants, who purchased or
otherwise acquired the publicly traded securities of Lending Club
Corporation. Lead Plaintiffs allege that they purchased LendingClub
securities during the Class Period at inflated prices and were
damaged upon the revelation of the alleged corrective disclosures
and/or materialization of the undisclosed risks.
Plaintiffs have filed a Consolidated Amended Class Action Complaint
alleging that Defendants violated Section 10(b) of the Securities
Exchange Act of 1934 (Exchange Act) and Rule 10b-5, 17 C.F.R.
Section 240.10b-5. Plaintiffs also assert that the Individual
Defendants are liable for violations of federal securities laws as
control persons of LendingClub, pursuant to Section 20(a) of the
Exchange Act.
Defendants LendingClub, Thomas W. Casey, Bradley Coleman, and Scott
Sanborn filed a motion to dismiss.
LEGAL STANDARD
Rule 12(b)(6)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted tests
the legal sufficiency of a claim. When determining whether a claim
has been stated, the Court accepts as true all well-pled factual
allegations and construes them in the light most favorable to the
plaintiff. However, the Court need not accept as true allegations
that contradict matters properly subject to judicial notice or
allegations that are merely conclusory, unwarranted deductions of
fact, or unreasonable inferences.
Rule 9(b) and the PSLRA
In addition to the pleading standards discussed above, a plaintiff
asserting a private securities fraud action must meet the
heightened pleading requirements imposed by Federal Rule of Civil
Procedure 9(b) and the Private Securities Litigation Reform Act of
1995 (PSLRA). Rule 9(b) requires a plaintiff to state with
particularity the circumstances constituting fraud.
Claim 1 — Section 10(b) and Rule 10b-5
Section 10(b) makes it unlawful for any person to use or employ, in
connection with the purchase or sale of any security any
manipulative or deceptive device or contrivance in contravention of
such rules and regulations as the Commission may prescribe. Rule
10b-5, promulgated by the SEC under the authority of Section 10(b),
in turn makes it unlawful for any person,
(a) To employ any device, scheme or artifice to defraud (b) To make
any untrue statement of a material fact or to omit to state a
material fact necessary in order to make the statements made, in
light of the circumstances under which they were made, not
misleading or (c) To engage in any act, practice, or course of
business which operates or would operate as a fraud or deceit upon
any person, in connection with the purchase or sale of any
security.
To state a securities fraud claim, plaintiff must plead: (1) a
material misrepresentation or omission by the defendant (2)
scienter (3) a connection between the misrepresentation or omission
and the purchase or sale of a security (4) reliance upon the
misrepresentation or omission (5) economic loss and (6) loss
causation.
Non-Actionable Statements and Omissions
To adequately plead a material misrepresentation or omission under
Section 10(b), the PSLRA requires plaintiffs to specify each
statement alleged to have been misleading, the reason or reasons
why the statement is misleading, and, if an allegation regarding
the statement or omission is made on information and belief, the
complaint shall state with particularity all facts on which that
belief is formed.
A material misrepresentation differs significantly from corporate
puffery. Puffery is an expression of opinion, while a
misrepresentation is a knowingly false statement of fact.
An omission, by contrast, refers to the failure to disclose
material information about a company. An omission is material if
there is a substantial likelihood that the disclosure of the
omitted fact would have been viewed by the reasonable investor as
having significantly altered the total mix of the information made
available.
Defendants argue that many of the allegedly false statements are
inactionable puffery.
Plaintiffs disagree.
The Court agrees with Defendants that the statements touting
LendingClub's focus on compliance, building trust with various
stakeholders, and transparency are examples of corporate optimism
and puffery. The distinguishing characteristics of puffery are
vague, highly subjective claims as opposed to specific, detailed
factual assertions.
Similarly, a key principle of the Company is maintaining the
highest levels of trust with borrowers, investors, regulators,
stockholders and employees and it bears repeating that by
supporting bank's demanding diligence and regulatory requirements,
we become a better company are not actionable because the
statements lacks detailed factual assertions.
In sum, the Court finds that the alleged misstatements boasting
LendingClub's commitment to compliance, trust, and transparency and
the first sentence of are non-actionable puffery.
Falsity
Having distilled out the non-actionable portions of the statements
of which Plaintiffs complain, the Court must now determine whether
the CAC specifies the reason or reasons why the remaining
statements are false or misleading. In the Ninth Circuit,
plaintiffs may establish falsity in three ways: if (1) the
statement is not actually believed (2) there is no reasonable basis
for the belief or (3) the speaker is aware of undisclosed facts
tending seriously to undermine the statement's accuracy.
Non-Disclosure of Practices in FTC's Complaint
As an initial matter, the Court addresses Plaintiffs' allegations
that various statements made during the Class Period were false or
misleading because Defendants were duty bound to disclose, but
failed to disclose that, inter alia: (1) LendingClub falsely
promised consumers they would receive a loan with `no hidden fees'
when the Company charged a hidden origination fee to all borrowers
(2) LendingClub's privacy policy did not comply with the GLB Act.
Plaintiffs' enumerated omissions are precisely what is alleged in
the FTC Action, filed after the Class Period ended.
That said, it appears that Plaintiffs may be inferring that
Defendants had knowledge of the practices alleged in the FTC Action
because of FTC's pre-suit investigation into those matters.
However, the mere existence of an FTC investigation which
LendingClub disclosed to investors does not mean that Defendants
were aware of the conduct eventually alleged in the FTC Action
nearly two years later, or that such conduct violated FTC rules.
Lack of connection between statements and alleged reasons for their
falsity
In order to plead falsity, a plaintiff must allege specific facts
indicating why the statements at issue were false. Many of the
alleged misstatements in the CAC do not relate to the business
practices at issue in the FTC Action, and thus, the reasons
Plaintiffs offer as to why many of the statements are false or
misleading bear no connection to the substance of the statements.
As a result, the CAC lacks any particularized allegations
demonstrating that these statements were materially false or
misleading when made.
Plaintiffs argue that Defendants disclosed the DOJ's and SEC's
investigations into the loan doctoring scheme on the first day of
the current Class Period, however, they failed to disclose that
internal control weaknesses and reputational damage would persist
from undisclosed, fraudulent loan practices this time to borrowers
or consumers.
Similarly, the statements regarding LendingClub's process and
website improvements, even where not non-actionable puffery as
discussed earlier, are entirely unrelated to the loan practices
Plaintiffs complain of. These statements tout a redesigned website
and a new strategy in technology for verifying income and
employment, resulting in a better and streamlined experience for
borrowers, which is confirmed by positive feedback from
LendingClub's customers. Plaintiffs allege that these statements
were materially false or misleading because Defendants knew or
recklessly disregarded that LendingClub was engaging in the
practices alleged in the FTC Action and that such conduct would
subject LendingClub's business practices to heightened FTC scrutiny
and/or regulatory action.
But that is not what these representations were about only that the
technologically-improved system resulted in positive customer
feedback and better conversion rates, facts that Plaintiffs do not
challenge.
Lack of particularity in allegations
The CAC fails to allege falsity with particularity.
Statements regarding Lending Club's Privacy Policy
Plaintiffs allege that the statements regarding LendingClub's
privacy policy were false because Defendants knew or recklessly
disregarded that LendingClub's privacy policy did not comply with
the Gramm-Leach-Bliley Act, and this conduct would subject
LendingClub's business practices to heightened regulatory scrutiny
and/or regulatory action by the FTC.
Plaintiffs' sole basis for alleging that LendingClub's privacy
policy was not compliant with GLBA is the FTC Action. But, at a
minimum, to meet the requirements of Rule 9(b), Plaintiffs must,
for each allegedly false or misleading statement, clearly allege
with particularity why the statement was false or misleading at the
time it was made. It is not enough to allege that LendingClub was
charged with violating the GLBA after the statements were made. The
CAC fails to allege when, if ever, Defendants became aware of the
alleged non-compliance with GLBA in advance of the FTC Complaint.
Statements disclosing regulatory risks
The CAC suffers from similar deficiencies as to the statements
disclosing regulatory risks. Plaintiffs allege that the statements
disclosing risks related to legal compliance were false and/or
misleading because the risks warned of in the statements with
respect to the Company's compliance with borrower protection and
federal and state consumer protection laws had already
materialized.
Statements regarding LendingClub's no hidden fees
Plaintiffs argue that Defendants falsely told investors that
LendingClub does not charge an origination fee or a prepayment
penalty, that its fixed rates are clearly disclosed to the borrower
during the application process, and there are no hidden fees.
According to Plaintiffs, LendingClub did in fact charge hidden fees
in the form of an origination fee that was not clearly disclosed'
to borrowers; a practice that was anything but transparent.
First, the Court notes that Plaintiffs have withdrawn allegations
that LendingClub falsely represented that it charges no origination
fees because those statements were made in the context of
LendingClub's auto refinance products, which in fact, do not charge
an origination fee.
Second, there are no allegations in the CAC regarding a prepayment
penalty and thus, the Court disregards Plaintiffs' argument on this
issue.
Third, these statements represent that LendingClub's loans feature
a fixed rate and not a fixed fee that is clearly disclosed. The CAC
does not allege that LendingClub's interest rates were hidden only
that LendingClub charged hidden origination fees.
The Court concludes that Plaintiffs failed to plead falsity as to
any of the alleged misstatements in the CAC.
Scienter
Defendants next challenge the sufficiency of the allegations with
respect to scienter. Scienter is a mental state embracing intent to
deceive, manipulate, or defraud.
To demonstrate scienter, defendants must have contemporaneously
made false or misleading statements either intentionally or with
deliberate recklessness. Mere recklessness or a motive to commit
fraud and opportunity to do so is not enough. Rather, a plaintiff
must show a highly unreasonable omission and an extreme departure
from the standards of ordinary care that presents a danger of
misleading buyers or sellers that is either known to the defendant
or is so obvious that the actor must have been aware of it.
Plaintiffs rely on the following to support an inference of
scienter: (1) the CW allegations regarding hidden fees (2)
omission of the hidden fee language from LendingClub's 2017 10-K
filing, (3) facts alleged in the FTC Action regarding an internal
compliance review and an investor's warnings regarding "hidden
fees," and (4) Core Operations doctrine.
As an initial matter, the Court notes that none of Plaintiffs'
alleged indicia of scienter relate to the allegations of
non-compliance with the GLBA. Specifically, there are no
allegations in the CAC or Plaintiffs' opposition brief that any of
the Individual Defendants, or LendingClub, knew that LendingClub's
privacy policy was not compliant with the GLBA before the FTC
Action was filed.
Confidential Witnesses
A complaint relying on statements from confidential witnesses must
pass two hurdles to satisfy the PSLRA pleading requirements. First,
the confidential witnesses whose statements are introduced to
establish scienter must be described with sufficient particularity
to establish their reliability and personal knowledge. Second,
those statements which are reported by confidential witnesses with
sufficient reliability and personal knowledge must themselves be
indicative of scienter.
Here, Plaintiffs have not alleged that any of the Individual
Defendants had access of any kind to the customer complaints let
alone through a forum integral to the company's success. Finally,
in Hatamian a CW, one of the individual defendants' direct report
stated that the individual defendants were kept apprised of and
intimately involved in production issues and attended weekly
production meetings. Here, the CWs have claimed no direct or
indirect contact with any of the Individual Defendants.
The Court notes that CWs also make contradictory statements.
According to CW1 customer representatives never explicitly let
consumers know about the origination fee it was up to the
consumers to find and read it and management instructed
representatives not to read truth-in-lending disclosures to
consumers. on the other hand, stated that the Company trained all
member support representatives to direct borrowers to where the
Company had disclosed the origination fee during the loan process
and to scroll through large documents with complaining borrowers,
showing several lines in far smaller type that summarized the
origination fee.
In any event, without more, customer complaints do not give rise to
a strong inference of scienter.
Omission of the Hidden Fee Language
Plaintiffs allege that LendingClub's decision to omit the no hidden
fees language in the 2017 10-K is further evidence of scienter
because the 2016 10-K and other earlier filings touted no hidden
fees and therefore, the sudden, subtle change shows consciousness
of the deceptive nature of LendingClub's prior statements.
Unsurprisingly, Plaintiffs do not cite to any authority to support
this theory. As this Court has explained, if the law viewed a
company's editing or removal of language from an SEC filing as a
tacit admission that the language was false when made, no public
company would ever remove disclosures from its filings.
Omission of no hidden fees language in LendingClub's 2017 10-K
cannot establish falsity, let alone scienter.
In sum, the CAC has failed to plead facts creating a strong
inference of scienter that is cogent and at least as compelling as
the alternative explanation, as required by the PSLRA. Accordingly,
the Court GRANTS Defendants' motion to dismiss for failure to state
a claim under section 10(b) or Rule 10b-5 WITH LEAVE TO AMEND.
Claim 2 — Section 20(a)
Section 20(a) of the Exchange Act extends liability for 10(b)
violations to those who are controlling persons of the alleged
violations. To succeed on a claim under Section 20(a), a plaintiff
must prove: (1) a primary violation of federal securities laws and
(2) that the defendant exercised actual power or control over the
primary violator. The SEC has defined control as the power to
direct or cause the direction of the management and policies of a
person, whether through ownership of voting securities, by
contract, or otherwise.
Because Plaintiffs have failed to state a claim for a primary
violation of the Exchange Act, they likewise have failed to state a
claim for violation of Section 20(a). Thus, the Court GRANTS
Defendants' motion to dismiss Plaintiffs' claims under section
20(a) WITH LEAVE TO AMEND.
To successfully state a claim, Plaintiffs must plead with
particularity what statements were made, when they were made, why
they were false at the time they were made, and how the Defendant
who made the statement acted with scienter at the time the
statements were made. Because Plaintiffs fail to adequately plead
that Defendants made any false or misleading statements and that
they did so with scienter, the motions to dismiss are GRANTED WITH
LEAVE TO AMEND.
For the amended complaint, pursuant to the PSLRA and the Federal
Rules of Civil Procedure, and for the sake of clarity and efficient
case management, Plaintiffs are directed to set out in chart form
their securities fraud allegations under the following headings on
a numbered, statement-by-statement basis: (1) the speaker(s),
date(s) and medium; (2) the false and misleading statements; (3)
the reasons why the statements were false and misleading when made;
and (4) the facts giving rise to a strong inference of scienter.
The chart may be attached to or contained in the amended complaint,
but in any event will be deemed to be a part of the amended
complaint.
A full-text copy of the District Court's November 4, 2019 Order is
available at https://tinyurl.com/yjo46hb4 from Leagle.com.
Matthew Veal, Individually and on bahalf of all others similarly
situated, Plaintiff, represented by Laurence Matthew Rosen –
lrosen@rosenlegal.com -The Rosen Law Firm, P.A.
Marsha Tiller, Plaintiff, represented by Fredman B. Peter -
peter@peterfredmanlaw.com - Law Office of Peter Fredman PC.
Riccardo Baron, Plaintiff, represented by Avraham Noam Wagner -
avi@thewagnerfirm.com - The Wagner Firm.
LendingClub Investor Group, XiangHong Ding and Zhenbin Chen,
collectively LendingClub Investor Group-Lead Plaintiff, Plaintiff,
represented by Jennifer Pafiti - jpafiti@pomlaw.com - Pomerantz
LLP.
LendingClub Corporation, Scott Sanborn, Bradley Coleman & Thomas W.
Casey, Defendants, represented by Alexander K. Talarides -
atalarides@orrick.com - Orrick Herrington and Sutcliffe LLP & James
Neil Kramer - jkramer@orrick.com - Orrick, Herrington & Sutcliffe
LLP.
Carrie L. Dolan, Defendant, represented by Charlene Sachi Shimada
-charlene.shimada@morganlewis.com - Morgan, Lewis & Bockius LLP &
Lucy Han Wang -lucy.wang@morganlewis.com - Morgan, Lewis & Bockius
LLP.
Ravi Mallur, Movant, represented by Laurence Matthew Rosen , The
Rosen Law Firm, P.A. & Phillip C. Kim – pkim@rosenlegal.com -The
Rosen Law Firm, P.A., pro hac vice.
XiangHong Ding & Zhenbin Chen, Movants, represented by Jennifer
Pafiti , Pomerantz LLP, Jeremy A. Lieberman -
jalieberman@pomlaw.com - Pomerantz LLP, pro hac vice, Leigh H.
Smollar - lsmollar@pomlaw.com - Pomerantz LLP, pro hac vice &
Patrick V. Dahlstrom - pdahlstrom@pomlaw.com - Pomerantz LLP.
LGS INC: Reynoso et al. Seek to Certify FLSA Collective Action
--------------------------------------------------------------
In the class action lawsuit styled as Servando Reynoso, Kailei
Bonds and Tekela Hammond, individually and on behalf of all persons
similarly situated as class representative under Illinois Law
and/or as Class representative for the members of the Collective as
permitted under the Fair Labor Standards Act, the Plaintiff, vs.
LGS INC, d/b/a ISA Experts, and Aleta Sarno Individually Under FLSA
and IWPCA As Employers, the Defendants, Case No. 1:19-cv-04025
(N.D. Ill.), the Plaintiffs ask the Court for an order:
1. certifying a Fair Labor Standards Act Collective Action,
and approving Disclosure of Potential Opt-In Plaintiffs'
Contact Information, and for Court-Approved Notice.
2. allowing an opt-in period of 90 days;
3. directing Defendants to produce the full names, aliases,
addresses, phone numbers, email addresses and last date(s)
of performance of all potential putative class members who
worked for Defendants, and the last known work and home
physical and email addresses and phone numbers of the
employees who worked for Defendant from December 1, 2016 to
the present, no later than two weeks after the date of the
entry of the Order;
4. approving a notice based on a form to be submitted by the
parties; and
5. approving transmittal of the Notice to members of the class
via US Mail, email, and text message.[CC]
The Plaintiffs are represented by:
John C. Ireland, Esq.
THE LAW OFFICE OF JOHN C. IRELAND
636 Spruce Street
South Elgin, IL 60177
Telephone: 630-464-9675
Facsimiles 630-206-0889
E-mail: attorneyireland@gmail.com
LILITH GAMES: Coy Hits Deceptive Business Practices
---------------------------------------------------
Keith Coy, individually and on behalf of all others similarly
situated, Plaintiff, v. Lilith Games (Shanghai) Co., Ltd., and
Shanghai Lilith Network Technology Co., Ltd., Case No. 19-cv-08192
(N.D. Cal., December 17, 2019), seeks to recover for deceptive and
otherwise unlawful in-game purchases solicited by Lilith under the
California Consumer Remedies Act, Unfair or Unlawful Business
Practices and Unfair or Unlawful Contest or Sweepstakes statutes of
the California Business and Professions Code, California's False
Advertising Law and for breach of the covenant of good faith and
fair dealing.
Defendant is a mobile videogame developer and service provider,
based in Shanghai, China that markets its games and services
throughout the United States via the iTunes app store and Google
Play including "Rise of Kingdoms." Said game solicits in-game
purchases from players once they begin playing the game. However,
there is no guarantee of actually receiving the item being
purchased, thus making it a form of gambling. [BN]
Plaintiff is represented by:
Trent R. Kashima, Esq.
SOMMERS SCHWARTZ, P.C.
402 West Broadway, Suite 1760
San Diego, CA 92101
Telephone: (248) 355-0300
Facsimile: (248) 746-4001
Email: tkashima@sommerspc.com
- and -
Kevin J. Stoops, Esq.
Charles R. Ash, IV, Esq.
SOMMERS SCHWARTZ, P.C.
One Towne Square, 17th Floor
Southfield, MI 48076
Telephone: (248) 355-0300
Facsimile: (248) 746-4001
Email: kstoops@sommerspc.com
crash@sommerspc.com
MARS INC: M&M's Fat Boy Ice Cream Lacks Vanilla, Richardson Says
----------------------------------------------------------------
Sherise Richardson, individually and on behalf of all others
similarly situated, Plaintiff v. Mars, Incorporated, Defendant,
Case No. 7:19-cv-10860 (S.D.N.Y., Nov. 23, 2019), arises from the
Defendant's failure to accurately indicate on the front label that
its Fat Boy vanilla ice cream products contained flavor from
non-vanilla sources.
The Defendant did so because it knows consumers prefer foods that
are flavored from food ingredients instead of added flavor
ingredients and contain enough of the characterizing food
ingredients to flavor the Products, the Plaintiff contends.
According to the complaint, Mars manufactures, distributes,
markets, labels and sells ice cream products purporting to contain
flavor from their natural characterizing flavor, vanilla, under
their M&M's brand (Products). The Products are available to
consumers from retail and online stores of third-parties and the
Defendant's Web site and are sold in boxes containing 6 bars of
1.63 FL OZ (9.78 FL OZ).
The Products are misleading because they do not contain the amount,
type and percentage of vanilla as a component of the flavoring in
the product, which is required and consistent with consumer
expectations, the lawsuit says.
The Products' vanilla ice cream is not flavored only by vanilla,
but contains flavors derived from non-vanilla sources, which is
misleading to consumers, the Plaintiff asserts.
Mars manufactures packaged food products. The Company produces
confectionery, beverages, pet food, and other food products, as
well as animal care services.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Blvd., Suite 311
Great Neck, NY 11021
Telephone: (516) 303-0552
Facsimile: (516) 234-7800
E-mail: spencer@spencersheehan.com
- and -
Michael R. Reese, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Telephone: (212) 643-0500
Facsimile: (212) 253-4272
E-mail: mreese@reesellp.com
MDL 2672: Dealers' Bid for Class Certification Denied as Moot
-------------------------------------------------------------
In the class action lawsuit re: RE: VOLKSWAGEN "CLEAN DIESEL"
MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION (MDL
2672), the Hon. Judge Charles R. Breyer entered an order on Dec. 6,
2019:
1. granting the Bosch defendants' motion for summary judgment
on all of the plaintiff-dealerships' claims; and
2. denying as moot (i) the dealers' motion for class
certification, and (ii) the dealers’ motion to exclude an
expert report that the Bosch defendants submitted in
opposition to class certification.
The order relates to these cases:
Case 3:16-cv-02086-CRB (N.D. Cal.); and
Case 3:15-md-02672-CRB (N.D. Cal.).
MEDICAL BUSINESS: Court Certifies FCCPA Class & FDCPA Subclass
--------------------------------------------------------------
In the class action lawsuit styled as BRANDON GAUSE, the Plaintiff,
vs. MEDICAL BUSINESS CONSULTANTS, INC., the Defendant, Case No.
8:18-cv-01726-EAK-AAS (M.D. Fla.), the Hon. Judge Elizabeth E.
Kovachevich entered an order on Dec. 11, 2019:
1. granting Gause's motion for class certification;
2. certifying a Florida Consumer Collection Practices Act
Class consisting of:
"all individuals in the State of Florida who: (1) were sent
letters by Medical Business Consultants, Inc., that are
substantially similar or materially identical to the
Collection Letter attached to Plaintiffs Complaint; (2)
relating to a consumer debt, (3) on or after July 18, 2016";
3. certifying a Fair Debt Collection Practices Act Subclass
consisting of:
"all individuals in the State of Florida who: (1) were sent
letters by Medical Business Consultants, Inc., that are
substantially similar or materially identical to the
Collection Letter attached to Plaintiffs Complaint; (2)
relating to a consumer debt, (3) that Defendant acquired
after it was in default, (4) on or after July 18, 2017";
4. appointing Gause as lead plaintiff and representative of the
FCCPA Class and the FDCPA Subclass; and
5. appointing attorneys Gus M. Centrone and Brian L. Shrader of
Centrone & Shrader, PLLC and Katherine E. Yanes of Kynes
Markman & Felman, PA as co-lead counsel of the FCCPA Class
and the FDCPA Subclass.[CC]
NATIONAL ENTERTAINMENT: Class of Dancers Conditionally Certified
----------------------------------------------------------------
In the class action lawsuit styled as STEPHANIE DE ANGELIS, the
Plaintiff, vs. NATIONAL ENTERTAINMENT GROUP, LLC, Defendant, Case
No. 2:17-cv-00924-ALM-EPD (S.D. Ohio), the Hon. Judge Algenon L.
Marbley entered an order on Ddec. 10, 2019:
1. granting Plaintiff's motion and conditional certifies a
class of:
"all of Defendant's current and former dancers who have
worked at Defendant's club during the three years before
the order was granted to the present."
2. directing the parties to proceed with expedited discovery;
and
3. directing the parties to confer as to the proper form of
the notice and submit a proposed notice form and opt-in
consent form within 14 days of the date of the order.
If the parties disagree as to any specific language in the notice
and opt-in consent form, the parties may note the disputed
language, with accompanying briefing as necessary, and the Court
will promptly determine which language to use.
At the same time, the parties shall also submit a proposed plan for
the distribution of the notice to all potential opt-in plaintiffs
employed by Defendant at any time from three years prior to the
granting of this motion to the present. In the event of a
disagreement on the distribution procedure, the parties shall
submit simultaneous briefing on the matter. No responsive briefing
will be permitted.
The Plaintiff has brought forward sufficient evidence that she is
similarly situated to other dancers at Vanity and that she and
other dancers were subjected to a single, FLSA-violating policy,
the Court says.
Ms. De Angelis worked at Vanity as a dancer from April 2016 to
February 2017. Ms. De Angelis alleged that Vanity did not pay its
dancers any wages by misclassifying all of its dancers as
independent contractors, rather than employees.
She further alleges that at the end of each night, Vanity took a
cut from all tips made by the dancers, and the dancers were
required to split their tips with other employees.
Ms. De Angelis filed the lawsuit as a collective and class action
against Vanity on October 23, 2017, alleging violations of the Fair
Labor Standards Act of 1983, the Ohio Minimum Fair Wage Standards
Act, and the Ohio Semi-Monthly Payment Act.
National Entertainment is an adult entertainment club in Columbus,
Ohio.[CC]
NATIONAL GENERAL: North Miami Securities Suit Moved to S.D.N.Y.
---------------------------------------------------------------
The class action lawsuit styled as CITY OF NORTH MIAMI BEACH POLICE
OFFICERS' AND FIREFIGHTERS' RETIREMENT PLAN, Individually and on
Behalf of All Others Similarly Situated, Plaintiff, and Town of
Davie Police Officers Retirement System and Massachusetts Laborers'
Pension Fund, Movants v. NATIONAL GENERAL HOLDINGS CORP., BARRY
KARFUNKEL and MICHAEL WEINER, Defendants, Case No. 2:19-cv-06468
(Filed July 25, 2019), was transferred from the U.S. District Court
for the Central District of California to the U.S. District Court
for the Southern District of New York (Foley Square) on Nov. 22,
2019.
The Southern District of New York Court Clerk assigned Case No.
1:19-cv-10825-JPO to the proceeding. The case is assigned to the
Hon. Judge J. Paul Oetken.
The case is a securities class action brought on behalf of all
purchasers of National General common stock between August 6, 2015,
and August 9, 2017, against National General and certain of its
officers and/or directors seeking to pursue remedies under the
Exchange Act.
The Defendants unlawfully generated profits by force-placing
unnecessary Collateral Protection Insurance (CPI) on unsuspecting
customers and then collected payments for insurance premiums,
interest, and other fees, while also providing undisclosed
kickbacks to Wells Fargo in the form of unearned commissions and
other compensation, thereby, increasing the costs paid by every
individual that defendants saddled with the policies, the lawsuit
says.
National General Holdings Corp. is a specialty personal lines
insurance holding company. Through its subsidiaries, the Company
provides a range of insurance products, including personal and
commercial automobile, homeowners, umbrella, recreational vehicle,
supplemental health, lender-placed and other niche products.[BN]
The Plaintiff and Movants are represented by:
David C. Walton, Esq.
Ashley M. Price, Esq.
Jennifer N Caringal, Esq.
Tricia L McCormick, Esq.
Brian Edward Cochran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP (SANDIEGO)
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: davew@rgrdlaw.com
APrice@rgrdlaw.com
jcaringal@rgrdlaw.com
tmccormick@rgrdlaw.com
bcochran@rgrdlaw.com
The Defendants are represented by:
Jane M. Byrne, Esq.
Jesse Bernstein, Esq.
Renita N. Sharma, Esq.
Leigha E. Empson, Esq.
Michael Barry Carlinsky, Esq.
Richard Corey Worcester, Esq.
Robert Patrick Vance, Jr., Esq.
Barry Karfunkel, Esq.
QUINN EMANUEL URQUHART AND SULLIVAN LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: (212) 849-7315
Facsimile: (212) 849-7100
E-mail: janebyrne@quinnemanuel.com
jessebernstein@quinnemanuel.com
leighaempson@quinnemanuel.com
michaelcarlinsky@quinnemanuel.com
renitasharma@quinnemanuel.com
coreyworcester@quinnemanuel.com
bobbyvance@quinnemanuel.com
janebyrne@quinnemanuel.com
michaelcarlinsky@quinnemanuel.com
NAVIENT SOLUTIONS: 5th Cir. Flips Discharge Injunction Ruling
-------------------------------------------------------------
The United States Court of Appeals for the Fifth Circuit reversed a
District Court judgment denying Defendants' Motion to Dismiss in
the case captioned In re: Evan Brian Crocker, also known as Haas
Legal, P.L.L.C. Debtor. EVAN BRIAN CROCKER, on behalf of themselves
and all those similarly situated, also known as Haas Legal,
P.L.L.C, formerly known as Evan Brian Haas: MICHAEL SHAHBAZI, on
behalf of themselves and all those similarly situated, formerly
known as Montana Shahbazi; WENDY L. LANDES, on behalf of themselves
and all those similarly situated; RAEGENA SEITZ-MOULDS, on behalf
of themselves and all those similarly situated, Appellees, v.
NAVIENT SOLUTIONS, L.L.C.; NAVIENT CREDIT FINANCE CORPORATION,
Appellants. No. 18-20254. (5th Cir.)
Evan Crocker in Texas and Michael Shabhazi in Virginia separately
obtained loans from the same lender to pay education expenses. Both
later filed for bankruptcy in their respective states. In time,
orders of discharge were entered. Crocker, one of the discharged
debtors, then filed suit against the lender in the same Bankruptcy
Court of the Southern District of Texas that had ordered the
discharge of his debts. Shabhazi later joined the Texas suit. The
suit seeks to certify a nationwide class of those who claim their
education-loan debts were validly discharged but from whom this
lender continues to demand payment. A declaratory judgment,
injunction, and damages are sought.
Navient moved for summary judgment on these claims, arguing that a
bankruptcy court has no jurisdiction to interpret and enforce
discharge orders entered by courts in other judicial districts and
that the plaintiffs' education loans were nondischargeable.
The bankruptcy court denied the motion. It rejected that the
general rule giving an issuing court sole authority to enforce its
own injunctions applied to the automatic injunction created by
statute when a bankruptcy court grants a discharge under 11 U.S.C.
Section 727. The court also determined that the kind of loans for
educational purposes relevant here, which the parties refer to as
private loans, were not within the ambit of the Bankruptcy Code's
bar on the discharge of some student loans.
Navient has two principal contentions on appeal. The first is that
the bankruptcy court either has no jurisdiction to enforce the
statutory injunctions arising from a bankruptcy discharge that
another bankruptcy court ordered, or at least for prudential
reasons may not do so. Second, Navient contends that the
plaintiffs' education loans are within the category of loans that
under the Bankruptcy Code are nondischargeable.
Navient disagrees that discharge injunctions should be treated
differently than others. A principal authority it cites is one of
this court's precedents dealing with non-bankruptcy injunctions.
There, Chief Judge Charles Clark explained in the context of a
claim of securities fraud that enforcement of an injunction through
a contempt proceeding must occur in the issuing jurisdiction
because contempt is an affront to the court issuing the order. A
bankruptcy court does continue to have jurisdiction to enforce its
orders, and that jurisdiction remains even after the bankruptcy
case is closed.
The Second Circuit has limited enforcement of discharge injunctions
through contempt proceedings to the originating court: the
bankruptcy court retains a unique expertise in interpreting its own
injunctions and determining when they have been violated. Anderson
v. Credit One Bank, N.A., (In re Anderson), 884 F.3d 382, 390-91
(2d Cir. 2018).
Without labeling the reason as one of jurisdiction, the court
explained: The power to enforce an injunction is complementary to
the duty to obey the injunction, which the Supreme Court has
described as a duty borne out of respect for judicial process. That
same respect for judicial process requires us to hold that the
bankruptcy court alone has the power to enforce the discharge
injunction in Section 524.
A recent Supreme Court decision placed the civil contempt that
results from violating a bankruptcy discharge injunction under the
general principles for contempt. It richly phrased its analysis:
When a statutory term is obviously transplanted from another legal
source, it brings the old soil with it. Taggart v. Lorenzen, 139
S.Ct. 1795, 1801 (2019) (quoting Hall v. Hall, 138 S.Ct. 1118, 1128
(2018)). Rooted in the soil are the traditional standards in equity
practice for determining when a party may be held in civil contempt
for violating an injunction.
The Court do not see a holding in Taggart that all the rules for
civil contempt were transplanted into bankruptcy, but we do see an
imperative that any deviation from those rules have a substantial
justification. Beginning in 1970, there was a statutory argument
from Section 32(g) of the 1898 Bankruptcy Code that there was no
need to return to the original bankruptcy court, but that argument
was repealed in 1978 along with the section. The remainder of what
has been argued to us does not suffice to show that we should allow
an exception from the usual enforcement rules for injunctions.
Though Taggart did not lock the gate to any deviations from
traditional contempt rules in bankruptcy, very little opportunity
to open it was provided.
The Fifth Circuit adopted the language of the Second Circuit that
returning to the issuing bankruptcy court to enforce an injunction
is required at least in order to uphold respect for judicial
process. The bankruptcy court erred in holding that it could
address contempt for violations of injunctions arising from
discharges by bankruptcy courts in other districts. Therefore, as
to Shahbazi and at least those debtors whose discharges were
entered by courts in other districts, the bankruptcy court in these
proceedings has no authority to enforce the resulting injunction.
Though the bankruptcy court did not reach the issue of
certification of a class, the Court points out that because of the
limitation on enforcement we have just identified, and indeed
because we are aware of no prior certification of a class that
includes debtors whose discharges were entered by bankruptcy courts
in other districts, certifying such a class would be highly
dubious. The Court also leave for the court on remand the separate
issue, if it becomes relevant, of whether that court has authority
to enforce the injunctions arising from discharges entered by any
bankruptcy court in the same judicial district.
Dischargeability of private student loans
The bankruptcy court also answered the question of whether the
loans that the plaintiffs received were subject to the statutory
prohibition of discharge of certain education loans. The court's
answer to that question was no. Though the ruling will impact only
the discharges of loans by that court or perhaps in that judicial
district, it remains an answer the Court must review. Congress has
excepted certain categories of debt from discharge, including much
student-loan debt. All exceptions to discharge are to be
interpreted narrowly in favor of the debtor to preserve the fresh
start the Bankruptcy Code provides for debtors.
The plaintiffs, though, argue that Subsection (8)(A)(ii)'s text and
the Bankruptcy Code's purpose to give debtors a fresh start require
reading the subsection narrowly. Further, reading the subsection
through the canons of statutory interpretation affirms this narrow
reading, as do the drafters' language and grammar choices.
The bankruptcy court here determined Subsection (8)(A)(ii) was
unambiguous. The court considered the absence of the word loan and
the inclusion of the concepts of stipends and scholarships to
narrow the meaning of receiving an educational benefit to include
only such funding as tuition advances by an employer that must be
repaid if the employee leaves her employment within a certain
period of time. The court also focused on the Congressional use of
the word as to precede educational benefit. To the court, that
meant that what was received was the educational benefit, akin to
scholarships and stipends, not that what was received could be used
to pay for educational benefits.
These private education loans were thus dischargeable.
Navient argues that an obligation to repay funds received is
expansive and includes loans, citing to other statutes and federal
regulations that use obligation to repay in reference to loans. The
fact that an obligation to repay is one way to refer to loans is
correct, but the Court is trying to discern the meaning in the
context of a particular enactment.
In 2005, Congress replaced the entirety of Subsection (a)(8) with a
new subsection with subparts. The Court italicizes the only
significant new language:
(8) unless excepting such debt from discharge under this paragraph
would impose an undue hardship on the debtor and the debtor's
dependents, for (A)(i) an educational benefit overpayment or loan
made, insured, or guaranteed by a governmental unit, or made under
any program funded in whole or in part by a governmental unit or
nonprofit institution or(ii) an obligation to repay funds received
as an educational benefit, scholarship, or stipend or(B) any other
educational loan that is a qualified education loan, as defined in
section 221(d)(1) of the Internal Revenue Code of 1986, incurred by
a debtor who is an individual.
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005,
Pub. L. No. 109-8, Title II, Sec. 220, 119 Stat. 23, 59
The significant change was to make nondischargeable any other
qualified educational loan, which Navient concedes the loans here
are not, by adding Subsection (B).
Navient argues that severing Subsection (A)(ii) from (A)(i) allowed
(A)(ii) to cover a broader scope of education financing, including
private education loans. "All we see is a change to the structure
of the overall statute but no real change to the language that
controls the case before us," the Fifth Circuit said.
Navient's assertion that the 2005 amendment made all private
student loans nondischargeable is not only unsupported by the text,
it is unsupported by some of Navient's authorities. Among them is
Corletta v. Tex. Higher Educ. Coordinating Bd. (In re Pappas), 517
B.R. 708, 716-17 (Bankr. W.D. Tex. 2014). That case says no more
than that Congress amended Subsection (a)(8) in 2005 to apply to
private loans as well without identifying Subsection (a)(8)(A)(ii)
as the mechanism for this change. What brought a new category of
private loans into the discharge arena was the language of
Subsection (a)(8)(B), the only meaningful 2005 addition.
The Fifth Circuit has recently discussed the 2005 change to the
statute. The case concerned the undue hardship test that allows the
discharge of an education loan. The loans at issue were from the
United States Department of Education. That made them
nondischargeable under Subsection 523(a)(8)(A)(i) as being insured
or guaranteed by a governmental unit, or made under any program
funded in whole or in part by a governmental unit or nonprofit
institution.
The 2005 revision was in response to the growing trend of
commercial lending and the amendment's purpose was to make
qualified private student loans harder to discharge, prohibiting
discharge in all cases, unless repayment would create undue
hardship' for the debtor. That is a description of the new
Subsection (a)(8)(B). The definition of a qualified education loan
is in Section 221(d)(1) of the Internal Revenue Code of 1986, and,
as stated before, Navient accepts that Subsection (a)(8)(B) does
not apply here.
The Court find nothing in this explanation of the 2005 revisions to
alter our interpretation that Subsection 523(a)(8)(A)(ii) applies
only to educational payments that are not initially loans but whose
terms will create a reimbursement obligation upon the failure of
conditions of the payments.
"In conclusion, the only possibly applicable part of the relevant
statute is Subsection 523(a)(8)(A)(ii). In interpreting that
provision, we rely on the noscitur a sociis doctrine, the need to
avoid surplusage, Congressional ratification in 2005 of prior
interpretations, and the command that discharge exceptions are
interpreted narrowly in favor of debtors," the Fifth Circuit said.
The Court concludes that educational benefit is limited to
conditional payments with similarities to scholarships and
stipends. The loans at issue here, though obtained in order to pay
expenses of education, do not qualify as an obligation to repay
funds received as an educational benefit, scholarship, or stipend
because their repayment was unconditional. They therefore are
dischargeable.
The Fifth Circuit reversed the bankruptcy court's determination
that it has authority to enforce a discharge injunction entered by
a different district's bankruptcy court. Any debtors seeking
enforcement of injunctions due to discharges entered in other
districts should have their proceedings dismissed or transferred.
The Fifth Circuit affirmed the determination that loans such as
those in issue here are dischargeable. The appeals court remanded
to the bankruptcy court.
A full-text copy of the Court of Appeals' October 21, 2019 Opinion
is available at https://tinyurl.com/y5dy6hwb from Leagle.com
Thomas Miles Farrell - tfarrell@mcguirewoods.com - for Appellant.
Mark Samuel Goldstein - markgoldstein@goldsteinlaw.legal - for
Appellant.
Alicia Martone Bendana , 701 Poydras St, New Orleans, LA 70139, for
Appellant.
Lynn Elizabeth Swanson , Jones, Swanson, Huddell & Garrison, LLC,
601 Poydras St Ste 2655,New Orleans, LA 70130, for Appellee.
Marc Douglas Myers - mmyers@rossbanks.com - for Appellee.
Tara Ann Twomey , 5 Emma Lane, Clifton Park, NY 12065, for
Appellee.
Karen Elizabeth Sieg - bsieg@mcguirewoods.com - for Appellant.
Jason W. Burge , 201 St. Charles Avenue, Suite 4600, New Orleans,
LA 70170-4600, for Appellee.
George F. Carpinello - gcarpinello@bsfllp.com - for Appellee.
Susan Tran - Susan.Tran@ctsattorneys.com - for Appellee.
Kathryn Johnson - kathy@kathyjohnsonlaw.com - for Appellee.
Kyle Hosmer , Gateway Plaza800 East Canal StreetRichmond, VA 23219-
3916, for Appellant.
NCAA: Sued by Patrick for Ignoring Athletes' Health and Safety
--------------------------------------------------------------
MICHAEL PATRICK, individually and on behalf of all others similarly
situated, Plaintiff v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
and MASSACHUSETTS INSTITUTE OF TECHNOLOGY, Defendants, Case No.
1:19-cv-4656 (S.D. Ind., Nov. 22, 2019), seeks redress for injuries
sustained as a result of the Defendants' reckless disregard for the
health and safety of generations of MIT student-athletes.
According to the complaint, nearly 100,000 student-athletes sign up
to compete in college football each year, and it's no surprise why.
Football is America's sport and Plaintiff and a Class of football
players were raised to live and breathe the game. During football
season, there are entire days of the week that millions of
Americans dedicate to watching the game. On game days, hundreds of
thousands of fans fill stadium seats and even more watch around the
world. Before each game, these players--often mere teenagers--are
riled up and told to do whatever it takes to win and, when playing,
are motivated to do whatever it takes to keep going.
But up until 2010, NCAA kept players and the public in the dark
about an epidemic that was slowly killing college athletes. During
the course of a college football season, athletes absorb more than
1,000 impacts greater than 10 Gs (gravitational force) and, worse
yet, the majority of football-related hits to the head exceed 20
Gs, with some approaching 100 Gs. To put this in perspective, if
you drove your car into a wall at 25 miles per hour and weren't
wearing a seatbelt, the force of you hitting the windshield would
be around 100 Gs. Thus, each season these 18, 19, 20, and
21-year-old student-athletes are subjected to repeated car
accidents.
Over time, the repetitive and violent impacts to players' heads led
to repeated concussions that severely increased their risks of
long-term brain injuries, including memory loss, dementia,
depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's
disease, and other related symptoms. Meaning, long after they
played their last game, they are left with a series of neurological
events that could slowly strangle their brains. For decades, NCAA
knew about the debilitating long-term dangers of concussions,
concussion-related injuries, and sub-concussive injuries (referred
to as "traumatic brain injuries" or "TBIs") that resulted from
playing college football, but recklessly disregarded this
information to protect the very profitable business of "amateur"
college football.
Football players were under the Defendant's care. Unfortunately,
the Defendant did not care about the off-field consequences that
would haunt students for the rest of their lives, the Plaintiff
asserts. Despite knowing for decades of a vast body of scientific
research describing the danger of traumatic brain injuries ("TBIs")
like those the Plaintiff experienced, the Defendant failed to
implement adequate procedures to protect the Plaintiff and other
football players from the long-term dangers associated with them.
They did so knowingly and for profit, the Plaintiff avers.
As a direct result of the Defendant's acts and omissions, the
Plaintiff and countless football players suffered brain and other
neurocognitive injuries from playing NCAA football, the lawsuit
says. As such, the Plaintiff brings this Class Action Complaint in
order to vindicate those players' rights and hold the NCAA
accountable.
NCAA is a non-profit organization which regulates athletes of 1,268
North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: 713.554.9099
Facsimile: 713.554.9098
E-mail: jraizner@raiznerlaw.com
- and -
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
Rafey S. Balabanian, Esq
EDELSON PC
350 North LaSalle Street, 14th Floor
Chicago, IL 60654
Telephone: 312 589 6370
Facsimile: 312 589 6378
E-mail: jedelson@edelson.com
brichman@edelson.com
rbalabanian@edelson.com
NCAA: Taylor Sues Over Disregard of Student-Athletes' Safety
------------------------------------------------------------
SEAN TAYLOR, individually and on behalf of all others similarly
situated, Plaintiff v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,
Defendant, Case No. 1:19-cv-4651 (S.D. Ind., Nov. 22, 2019), seeks
redress for injuries sustained as a result of the Defendants'
reckless disregard for the health and safety of generations of
Wayne State College's student-athletes.
According to the complaint, nearly 100,000 student-athletes sign up
to compete in college football each year, and it's no surprise why.
Football is America's sport and Plaintiff and a Class of football
players were raised to live and breathe the game. During football
season, there are entire days of the week that millions of
Americans dedicate to watching the game. On game days, hundreds of
thousands of fans fill stadium seats and even more watch around the
world. Before each game, these players--often mere teenagers--are
riled up and told to do whatever it takes to win and, when playing,
are motivated to do whatever it takes to keep going.
But up until 2010, NCAA kept players and the public in the dark
about an epidemic that was slowly killing college athletes. During
the course of a college football season, athletes absorb more than
1,000 impacts greater than 10 Gs (gravitational force) and, worse
yet, the majority of football-related hits to the head exceed 20
Gs, with some approaching 100 Gs. To put this in perspective, if
you drove your car into a wall at 25 miles per hour and weren't
wearing a seatbelt, the force of you hitting the windshield would
be around 100 Gs. Thus, each season these 18, 19, 20, and
21-year-old student-athletes are subjected to repeated car
accidents.
Over time, the repetitive and violent impacts to players' heads led
to repeated concussions that severely increased their risks of
long-term brain injuries, including memory loss, dementia,
depression, Chronic Traumatic Encephalopathy ("CTE"), Parkinson's
disease, and other related symptoms. Meaning, long after they
played their last game, they are left with a series of neurological
events that could slowly strangle their brains. For decades, NCAA
knew about the debilitating long-term dangers of concussions,
concussion-related injuries, and sub-concussive injuries (referred
to as "traumatic brain injuries" or "TBIs") that resulted from
playing college football, but recklessly disregarded this
information to protect the very profitable business of "amateur"
college football.
Football players were under the Defendant's care. Unfortunately,
the Defendant did not care about the off-field consequences that
would haunt students for the rest of their lives. Despite knowing
for decades of a vast body of scientific research describing the
danger of traumatic brain injuries ("TBIs") like those the
Plaintiff experienced, the Defendant failed to implement adequate
procedures to protect the Plaintiff and other football players from
the long-term dangers associated with them. They did so knowingly
and for profit, the Plaintiff avers.
As a direct result of the Defendant's acts and omissions, the
Plaintiff and countless football players suffered brain and other
neurocognitive injuries from playing NCAA football, the lawsuit
says. As such, the Plaintiff brings this Class Action Complaint in
order to vindicate those players' rights and hold the NCAA
accountable.
NCAA is a non-profit organization which regulates athletes of 1,268
North American institutions and conferences.[BN]
The Plaintiff is represented by:
Jeff Raizner, Esq.
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, TX 77006
Telephone: 713.554.9099
Facsimile: 713.554.9098
E-mail: jraizner@raiznerlaw.com
- and -
Jay Edelson, Esq.
Benjamin H. Richman, Esq.
Rafey S. Balabanian, Esq
EDELSON PC
350 North LaSalle Street, 14th Floor
Chicago, IL 60654
Telephone: 312 589 6370
Facsimile: 312 589 6378
E-mail: jedelson@edelson.com
brichman@edelson.com
rbalabanian@edelson.com
NORTHERN TRUST: Court Denies Motion for Class Certification
-----------------------------------------------------------
In the class action lawsuit styled as Lindie L. Banks, et al., the
Plaintiffs, vs. Northern Trust Corporation, the Defendant, Case No.
2:16-cv-09141-JFW-JC (C.D. Cal.), the Hon. Judge John F. Walter
entered an order denying Plaintiffs' motion for class certification
of these classes:
Tax Preparation Fee Class:
"From January 1, 2008 to the present, all grantors, trustors,
beneficiaries, remaindermen, co-trustees and/or successor
trustees of Class Trusts, which are defined as all revocable
or irrevocable personal or charitable trusts: (1) for which
Defendants served or serve as trustee, and where Defendants
charged a "fiduciary" or "tax preparation" fee for one or
more of the covered years, and (2) the paid preparer of the
fiduciary"; and
Fixed-Fee Overcharge Class:
"From January 1, 2008 to the present, all grantors, trustors,
beneficiaries, remaindermen, co-trustees and/or successor
trustees of Class Trusts, which are defined as all revocable
or irrevocable personal or charitable fixed-fee trusts:
(1) for which Defendants served or serve as trustee, (2) for
which the amount of the trustee's compensation is specified
in the governing instrument for the trust, and (3) for which
fees were charged in excess of the specified compensation by
Defendants"; and
Investment Class:
"From December 9, 2012 to the present, all grantors, trustors,
beneficiaries, remaindermen, co-trustees and/or successor
trustees of Class Trusts, which are defined as all revocable
or irrevocable personal or charitable trusts: (1) for which
Defendants served or serve as trustee, (2) for which
Defendants had sole investment discretion or recommendation
responsibility over principal and/or income, and (3) which
had trust assets invested in index fund investments that
were financially affiliated with Defendants, that were also
invested in the Lindstrom Trust."
The Court concludes that Plaintiffs have failed to meet their
burden of demonstrating that there are questions of fact and law
which are common to the Tax Preparation Class. In this case,
Plaintiffs have failed to demonstrate that common proof would
permit class-wide resolution of these claims. Although Plaintiffs
argue that charging a "line item" tax preparation fee is "uniformly
illegal" .
The Court also concludes that Plaintiffs have failed to meet their
burden of demonstrating that there are questions of fact and law
which are common to the Investment Class. the Plaintiffs argue that
whether Northern breached its fiduciary duties by investing in the
specified proprietary funds can be answered with common proof.
However, the use of proprietary funds is not, in and of itself, a
breach of fiduciary duty.
Instead, any analysis of whether a trustee may have breached its
duties requires consideration of whether the trustee acted with
"reasonable care, skill, and caution" in light of the circumstances
of a particular trust and the investment decisions made for the
trust, the Court says.[CC]
NORWALK, CA: Riley Seeks to Certify FLSA Class
----------------------------------------------
BARBARA RILEY, on her own behalf and on behalf of all those
similarly situated, the Plaintiffs, vs. CITY OF NORWALK, NORWALK
BOARD OF EDUCATION, and NORWALK PUBLIC SCHOOLS DISTRICT, the
Defendants, Case No. 3:19-cv-01436-JCH (D. Conn.), the Plaintiffs
ask the Court for an order:
1. permitting conditional certification of a collective action
on behalf of:
"all current and former employees who worked for Defendants
within the last three years and: 1) were paid by the hour,
2) performed two or more jobs for the district in one
workweek, and 3) worked more than 40 hours within a workweek
without being paid time and a half their regular rate of pay
for all overtime hours worked";
2. authorizing, under court supervision, notice to all
similarly situated employees who were employed by
Defendants.
The Plaintiff is a current employee of Defendants who holds several
job titles, including Paraeducator and office assistant.
The Plaintiff's claim is typical of the claims of other former and
current similarly situated individuals employed by Defendants and
typical of the claims of all members of the representative class.
The Plaintiff alleges that during the last three years, Defendants
have engaged in a scheme that has intentionally underpaid
Plaintiffs.
Defendants are a municipality, board of education, and
public-school district. The school district employs over 1,000
individuals and supports over 11,000 students across 20
schools.[CC]
The Plaintiffs are represented by:
Carlos Leach, Esq.
THE LEACH FIRM, P.A.
1950 Lee Rd., Suite 213
Winter Park, FL 32789
Telephone: (407) 574-4999
Facsimile: (833) 423-5864
E-mail: cleach@theleachfirm.com
OSKA CHICAGO: Faces Muhammad Class Suit Alleging Violation of ADA
-----------------------------------------------------------------
A class action lawsuit has been filed against Oska Chicago LLC. The
case is captioned as Rasul Muhammad, on behalf of himself and all
others similarly situated, Plaintiff v. Oska Chicago LLC,
Defendant, Case No. 1:19-cv-07746 (N.D. Ill., Nov. 23, 2019).
The case is assigned to the Hon. Rebecca R. Pallmeyer.
The suit alleges violation of the Americans with Disabilities Act.
OSKA Chicago is an apparel store for women in Chicago.
The Plaintiff is represented by:
Raymond Joseph Kramer, III, Esq.
KRAMER LLC
225 West Washington, Suite 2200
Chicago, IL 60606
Telephone: (773) 910-1104
E-mail: joe@rjklawyer.com
OSTERMAN PROPANE: Court Certifies Delivery Drivers Class
--------------------------------------------------------
The United States District Court for the District of Massachusetts
issued a Memorandum and Order granting Plaintiffs' Motion for Class
Certification in the case captioned DANIEL WALKER and ROBERT
PISKADLO, on behalf of themselves and all others similarly
situated, Plaintiffs, v. OSTERMAN PROPANE LLC and VINCENT OSTERMAN,
Defendants. Civil Action No. 17-10416-PBS. (D. Mass.)
Osterman Propane LLC (Osterman) is a propane delivery company with
eleven branches in Massachusetts. Daniel Walker and Robert Piskadlo
(Plaintiffs) are former employees of Osterman. Plaintiffs filed a
class action complaint alleging that Osterman underpaid its propane
delivery drivers in violation of the Massachusetts Wage Act.
They seek to certify a class of all current and former propane
delivery drivers in Massachusetts employed by Osterman Propane from
February 4, 2014 through the present.
Plaintiffs put forth two theories for why they and other putative
class members have been systematically underpaid by Osterman.
First, they allege that Osterman automatically deducted a half-hour
lunch break from drivers' reported time, even though Osterman knew
or should have known that drivers did not always take a break.
Second, Plaintiffs argue that drivers are not fully relieved of
work duties during ostensible lunch breaks and so should always be
paid for that half hour.
Legal Standard
A proposed class must satisfy four requirements under Rule 23(a):
(1) the class is so numerous that joinder of all members is
impracticable (numerosity) (2) there are questions of law or fact
common to the class (commonality) (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the
class (typicality) and (4) the representative parties will fairly
and adequately protect the interests of the class (adequacy).
The proposed class must also satisfy at least one provision of Rule
23(b). For a proposed class under Rule 23(b)(3), like the one here,
Plaintiffs must show that: (1) questions of law or fact common to
class members predominate over any questions affecting only
individual members (predominance) and (2) a class action is
superior to other available methods for fairly and efficiently
adjudicating the controversy (superiority).
Plaintiffs put forth two separate theories for liability under the
Massachusetts Wage Act. The Court analyzes each in turn and
certifies a class as to the second theory only.
First Theory of Liability: Automatic Deductions
Under Massachusetts law, employees are entitled to wages for all
hours worked.
Plaintiffs assert that Osterman's policy of automatically deducting
half an hour for lunch unlawfully deprives drivers of compensation
because drivers often work through lunch with no break.
Defendants do not contest that the proposed class meets the
ascertainability and numerosity requirements, and the Court agrees
those requirements are met.
Ascertainability
Plaintiffs' proposed class of propane delivery drivers in
Massachusetts employed by Osterman from February 4, 2014 through
the present is easily ascertainable through employment records.
Numerosity
No minimum number of plaintiffs is required to maintain a suit as a
class action, but generally if the named plaintiff demonstrates
that the potential number of plaintiffs exceeds 40, the first prong
of Rule 23(a) has been met. It is uncontested that the proposed
class would include over 100 drivers. The Court finds that joinder
of all these drivers would be impracticable. Rule 23(a)(1)'s
numerosity requirement is met.
Commonality
To satisfy Rule 23(a)(2)'s commonality requirement, the class
claims must depend upon a common contention that is capable of
classwide resolution which means that determination of its truth or
falsity will resolve an issue that is central to the validity of
each one of the claims in one stroke.
Questions are common if they can each be answered either yes or no
for the entire class and the answers will not vary by individual
class member. Commonality is generally satisfied where plaintiffs
challenge a system-wide practice or policy that affects all
putative class members.
Plaintiffs contend that commonality is met here because the claims
arise out of a companywide policy or practice of automatic
deductions for lunch breaks even when not taken.
To prove a claim of unlawful meal break deductions plaintiffs must
demonstrate that the employer knew or should have known that
drivers were working during those meal breaks.
Plaintiffs have not affirmatively demonstrated that Osterman had a
company-wide automatic deduction policy. At least two Osterman
branch managers reported that their policy was to deduct a lunch
break only if a break was affirmatively recorded. In addition,
timesheets from two drivers in the Lee and Southbridge branches
show no affirmative indication of No Lunch and yet their total
hours show no deductions.
Even in branches that automatically deducted a break, the record
reflects a wide variety of practices. Some branch managers took
steps to prevent uncompensated work by, for example, enforcing
mandatory lunch breaks. Other managers allegedly encouraged it by
telling drivers to work through lunch but nonetheless mark a lunch
break. Drivers at some branches could and did report No Lunch days
with no apparent discouragement or negative consequence. Drivers at
other branches found ways around the deduction policy by extending
their hours at the end of the day, thereby receiving compensation
for all hours worked.
The Court concludes commonality is not met. Plaintiffs have failed
to affirmatively demonstrate compliance with Rule 23 as to their
first theory of liability.
Second Theory of Liability: Work-Related Duties
Under Massachusetts law, working time does not include meal times
during which an employee is relieved of all work-related duties.
Plaintiffs' second theory of liability is that drivers are entitled
to compensation during purported lunch breaks because they are not
relieved of all work-related duties.
The Plaintiffs propose the same class of all current and former
propane delivery drivers in Massachusetts employed by Osterman from
February 4, 2014 through the present. The Court's earlier analysis
of ascertainability and numerosity remains applicable and is not
repeated here.
Commonality
As discussed above, commonality is met where there is a common
contention that, if true, will resolve an issue that is central to
the validity of each one of the class claims. As to their second
theory of liability, Plaintiffs catch a break.
Wage claims involving system-wide practices or policies are
appropriate for class treatment because establishing liability for
one employee necessarily establishes liability for the entire
class.
Relying on depositions from putative class members, Plaintiffs
allege that the common Osterman-run CETP training imposes certain
restrictions on all drivers during lunch breaks.
Defendants counter that federal law does not require drivers to
remain within a certain distance and line-of-sight of their
vehicles. Under 49 C.F.R. § 397.5(c), propane delivery drivers
must comply with those restrictions only if they are on a public
street or highway, or on the shoulder of a public highway.
Defendants also point to declarations from drivers who did not
believe they were subject to restrictions during breaks and to an
affidavit from Osterman's Director of Safety and Training that the
CETP training does not include any such requirements.
Plaintiffs have affirmatively demonstrated a common question of
fact whose answer will resolve an issue that is central to the
validity of their Wage Act claim. Namely, does the centralized CETP
training instruct drivers to abide by physical distance and
line-of-sight restrictions? The answer to this question can be
answered yes or no on a class-wide basis. Plaintiffs have submitted
sworn testimony by three drivers that they were trained to follow
this practice. To be sure, Defendants also submitted substantial
evidence that refutes these submissions, but the Court cannot
resolve that conflict here. A jury will have to determine the truth
or falsity of this common contention about the alleged centralized
training on a class-wide basis.
The Court concludes commonality is met.
Typicality
Rule 23(a)(3)'s typicality requirement is met where the class
representatives' claims have the same essential characteristics as
the claims of the other members of the class.
Walker and Piskadlo are typical class members as to their second
theory of liability. The "course of conduct" from which liability
would arise is common to all class members — Osterman requires
all drivers to attend the same training and comply with the same
safety standards. If lunch breaks are compensable under the Wage
Act, Walker and Piskadlo have the same claim to recover for
deducted breaks as every other class member. The Court concludes
that typicality is met.
Adequacy
To satisfy Rule 23(a)(4), the moving party must show first that the
interests of the representative party will not conflict with the
interests of any of the class members, and second, that counsel
chosen by the representative party is qualified, experienced and
able to vigorously conduct the proposed litigation.
Defendants contend Walker and Piskadlo are inadequate class
representatives because they hold grudges against their former
manager, Mike Smith, and because they committed timesheet fraud.
Neither argument is persuasive. Only conflicts that are fundamental
to the suit and that go to the heart of the litigation prevent a
plaintiff from meeting the Rule 23(a)(4) adequacy requirement.
Dissatisfaction with a former boss is not a disqualifying conflict
where there is no evidence it would affect Plaintiffs' claim
regarding lunch breaks.
Plaintiffs' attorneys are experienced in class-action employment
litigation and specifically wage and hour claims. Defendants do not
contest their qualifications. Both prongs of Rule 23(a)(4)'s
adequacy requirement are met.
Predominance
To succeed in their motion for class certification, Plaintiffs must
finally show that the proposed class meets the predominance and
superiority requirements of Rule 23(b)(3).
At the class certification stage, the court must be satisfied that,
prior to judgment, it will be possible to establish a mechanism for
distinguishing the injured from the uninjured class members.
The Court concludes that questions common to the class predominate.
Liability can be determined on a class-wide basis, without resort
to individualized inquiries. To prevail, Plaintiffs will need to
prove that the CETP training instructed all drivers to comply with
the alleged restrictions and that, as a legal matter, those
restrictions rendered lunch breaks working time. Both contentions
will stand or fall as to all class members.
Superiority
Finally, Rule 23(b)(3) requires that a class action is superior to
other available methods for fairly and efficiently adjudicating the
controversy. A Rule 23(b)(3) class action is particularly superior
where class treatment can vindicate the claims of `groups of people
whose individual claims would be too small to warrant litigation.
The Court finds that a class action here is the superior method for
adjudicating this controversy. The Court does not find any
significant management issues in proceeding as a class action, and
the Court is not aware of any other pending related litigation.
Furthermore, the Court finds that a class action lawsuit would be a
better option than multiple individual actions, coordinated
individual actions, consolidated individual actions, test cases, or
any of the other known options. In particular, the class is
composed of individual claims that would likely be too small to
warrant litigation.
The requirements of Rule 23(b)(3) are met.
Accordingly, the Court certifies the following class:
All current and former propane delivery drivers in Massachusetts
employed by Osterman Propane from February 4, 2014 through the
present.
A full-text copy of the District Court's October 21, 2019
Memorandum and Order is available at https://tinyurl.com/y6xs7m2k
from Leagle.com.
Daniel Walker, on Behalf of Herself and All Others Similarly
Situated, Plaintiff, represented by Eric R. LeBlanc-
eleblanc@bennettandbelfort.com - Bennett & Belfort PC, Todd J.
Bennett - tbennett@bennettandbelfort.com - Bennett & Belfort, P.C.,
Craig D. Levey , Bennett & Belfort PC, 24 Thorndike Street Suite
300 Cambridge, MA 02141, Lauren B. Haskins , Bennett & Belfort PC,
24 Thorndike Street Suite 300 Cambridge, MA 02141,& Michaela C. May
, Bennett & Belfort, P.C., 24 Thorndike Street Suite 300 Cambridge,
MA 02141
Robert Piskadlo, Plaintiff, represented by Eric R. LeBlanc ,
Bennett & Belfort PC, Michaela C. May , Bennett & Belfort, P.C. &
Lauren B. Haskins , Bennett & Belfort PC.
Osterman Propane LLC & Vincent Osterman, Defendants, represented by
- Anthony S. Califano acalifano@seyfarth.com - Seyfarth Shaw, LLP,
Barry J. Miller - bmiller@seyfarth.com - Seyfarth Shaw, LLP,
Bridget Bourque Maricich - bmaricich@seyfarth.com - Seyfarth Shaw,
LLP, Michael E. Steinberg - msteinberg@seyfarth.com - Seyfarth
Shaw & Molly Clayton Mooney - mmooney@seyfarth.com - Seyfarth
Shaw.
PECO FOODS INC: Hallman Seeks Pay for Off-the-Clock Work
---------------------------------------------------------
William Hallman and Deanna Walker, individually and on behalf of
all others similarly situated v. Peco Foods, Inc., Defendant, Case
No. 19-cv-00368 (E.D. Ark., December 17, 2019), seeks to recover
monetary damages, liquidated damages, prejudgment interest, and
costs, including reasonable attorneys' fees as a result of failure
to pay overtime wages as required by the Fair Labor Standards Act
and the Arkansas Minimum Wage Act.
Peco owns and operates several chicken processing plants throughout
Arkansas, Mississippi and Alabama where Hallman was employed as an
hourly-paid Production Specialist from February of 2019 until
October of 2019 while Walker worked as an hourly-paid Breading
Specialist in November of 2019. They claim compensation for
off-the-clock hours spent attending meetings, donning and taking
off their work gear. [BN]
Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM
Post Office Box 39
Russellville, AR 72811
Tel: (479) 880-0088
Fax: (888) 787-2040
Email: josh@sanfordlawfirm.com
PIZZA TO YOU: Waters Seeks Minimum & OT Pay for Delivery Drivers
----------------------------------------------------------------
Kirk Waters, On behalf of himself and those similarly situated,
Plaintiff v. Pizza to You, L.L.C.; Pizza to You 2, L.L.C.; Pizza to
You 3, L.L.C.; Pizza to You 4, LLC; Pizza to You 5, LLC; PRM
Management LLC; Peter Marrocco; Rosemary Marrocco; Doe Corporation
1-10; and John Doe 1-10, Defendants, Case No. 3:19-cv-00372-TMR
(S.D. Ohio, Nov. 22, 2019), arises from the Defendants' failure to
compensate the Plaintiff and similarly-situated individuals with
minimum wages and overtime wages as required by the Fair Labor
Standards Act and the Ohio's Prompt Pay Act.
The Plaintiff seeks to represent the delivery drivers, who have
worked at the Jet's Pizza.
The Plaintiff works at the Defendants' Springboro, Ohio location,
which is operated by Pizza to You 3, L.L.C.
The Defendants operate their Jet's Pizza stores as a single
operation.[BN]
The Plaintiff is represented by:
Andrew Kimble, Esq.
Andrew R. Biller, Esq.
Philip J. Krzeski, Esq.
Louise M. Roselle, Esq.
BILLER & KIMBLE, LLC
4200 Regent Street, Suite 200
Columbus, OH 43219
Telephone: (614) 604-8759
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
pkrzeski@billerkimble.com
lroselle@billerkimble.com
PORTFOLIO RECOVERY: Perea Seeks to Certify FDCPA Class
------------------------------------------------------
In the class action lawsuit styled as MARIO PEREA, individually and
on behalf of others similarly situated, the Plaintiff, vs.
PORTFOLIO RECOVERY ASSOCIATES, LLC, the Defendant, Case No.
1:18-cv-06504 (N.D. Ill.), the Plaintiff asks the Court for an
order:
1. certifying that the claims set forth in his Complaint may
proceed on behalf of the Class defined as:
"all persons with Illinois addresses to whom Defendant
mailed, from September 24, 2017 through September 24, 2018,
a letter containing the following statement:
'The law limits how long you can be sued on a debt and how
long a debt can appear on your credit report. Due to the
age of this debt, we will not sue you for it or report
payment or non-payment of it to a credit bureau. In
addition, we will not restart the statute of limitations
on the debt if you make a payment.'";
2. appointing himself as class representative; and
3. appointing his lawyer as counsel for the class.
The Plaintiffs brings this class action against PRA for violations
of the Fair Debt Collection Practices Act.
PRA is a buyer of defaulted consumer debts with its principal place
of business in Norfolk, Virginia. PRA purchases defaulted consumer
debts and attempts to collect them via litigation, credit reporting
via consumer credit reports, the mailing of letters, and via
telephone calls.[CC]
The Plaintiff is represented by:
Mario Kris Kasalo, Esq.
THE LAW OFFICE OF M. KRIS KASALO, LTD.
20 North Clark Street, Suite 3100
Chicago, IL 60602
Telephone: 312 726 6160
Facsimile: 312 698 5054
E-mail: mario.kasalo@kasalolaw.com
PROBUILD COMPANY: Senvong Labor Case Removed to S.D. California
---------------------------------------------------------------
ProBuild Company, LLC, et al., removed the case captioned as OTINA
SENGVONG, on behalf of himself, and all others similarly situated,
Plaintiff v. PROBUILD COMPANY LLC, a Delaware limited liability
company dba DIXIELINE LUMBER & HOME CENTERS, DIXIELINE TRUSS YARD,
DIXIELINE CLASSIC COLLECTIONS, DIXIELINE HOME CENTERS; BUILDERS
FIRSTSOURCE-DALLAS, LLC, a Delaware limited liability company;
BUILDERS FIRSTSOURCE, INC., a Delaware corporation; and DOES 1
through 50, inclusive, Defendants, Case No. 37-2019-00054729 (Filed
Oct. 15, 2019), from the Superior Court of California for the
County of San Diego to the U.S. District Court for the Southern
District of California on Nov. 22, 2019.
The Plaintiff asserts eight causes of action against the Defendants
for failure to provide meal periods, failure to provide rest
breaks, failure to compensate for all hours worked, failure to
indemnify, failure to provide accurately written wage statements,
waiting time penalties under the California Labor Code.
Probuild Company LLC supplies building materials. The company
offers cabinets, decking, doors, engineered wood, gypsum, home
plans, insulation, lumber and panel, milwork, roofing, windows, and
siding and trim products.
Builders FirstSource is a building material supplier in the
country, with over 400 locations in 40 states, and a market
presence in 74 of top the 100 Metropolitan Areas in the United
States.[BN]
The Defendants are represented by:
Nicky Jatana, Esq.
Andrea F. Oxman, Esq.
Sehreen Ladak, Esq.
JACKSON LEWIS P.C.
725 South Fugueroa Street, Suite 2500
Los Angeles, CA 90017-5408
Telephone: (213) 689-0404
Facsimile: (213) 689-0430
E-mail: Nicky.jatana@jacksonlewis.com
Andrea.oxman@jacksonlewis.com
Sehreen.ladak@jacksonlewis.com
RESORT MARKETING: $2.7MM Settlement Deal Gets Final Court OK
-------------------------------------------------------------
The United States District Court for the Northern District of
Illinois, Eastern Division issued an Order granting Parties Motion
for Final Approval of the Class Settlement in the case captioned
PHILIP CHARVAT, on behalf of himself and others similarly situated,
Plaintiff, v. ELIZABETH VALENTE, RESORT MARKETING GROUP, INC.,
CARNIVAL CORPORATION & PLC, ROYAL CARIBBEAN CRUISES, LTD., and NCL
(BAHAMAS) LTD., Defendants, Case No. 12-cv-05746, (N.D. Ill.).
After extensive, often contentious, litigation, the parties reached
a classwide settlement for which they now seek final approval.
Philip Charvat received a series of prerecorded telemarketing calls
from Defendant Resort Marketing Group, Inc. and its principal
Elizabeth Valente (RMG), promoting travel products and services
offered by Defendants Carnival Corporation & PLC, Royal Caribbean
Cruises, Ltd., and NCL (Bahamas) Ltd. Charvat had not consented to
receive the calls, and so he filed this lawsuit as a putative class
action against Defendants for alleged violations of the Telephone
Consumer Protection Act (TCPA).
This Court may approve a settlement binding class members only if
it determines, after proper notice and a public hearing, that the
proposed settlement is fair, reasonable, and adequate. In making
this determination, Rule 23(e)(2) requires the Court to consider
whether (1) the class representatives and class counsel have
adequately represented the class (2) the proposal was negotiated at
arm's length (3) the proposal treats class members equitably
relative to each other, and (4) the relief provided by the
settlement is adequate.
In addition, courts in the Seventh Circuit consider the following
five factors: (1) the strength of the plaintiffs' case compared
against the amount of the defendants' settlement offer (2) the
complexity, length, and expense of continued litigation (3) the
amount of opposition to the settlement (4) the opinion of
experienced counsel and (5) the stage of the proceedings and the
amount of discovery completed.
Adequacy of Representation of the Class
The Court finds that Charvat has represented the class diligently
as the named plaintiff: he sat for a deposition, responded to
discovery requests, and assisted Class Counsel throughout the
litigation. For their part, Class Counsel zealously represented the
class throughout the action, including through a lengthy and
contentious discovery period that involved serving several sets of
discovery requests on Cruise Defendants, drafting seven motions to
compel and defending against several others, and participating in
no less than fifteen depositions.
Arm's Length Negotiations
The record reflects that the proposed settlement here was
negotiated at arm's length after a lengthy period of litigation.
Unlike many class action settlements in which settlement
negotiations begin before discovery even takes place, this case was
contested through an adversarial and contentious process. The
parties attended a full day of mediation that, after initially
failing to result in a settlement, finally jumpstarted negotiations
between the parties. The settlement agreement contains no red flags
that would lead the Court to think the settlement agreement
resulted from anything other than good faith arm's length
negotiations.
Equitable Treatment of Class Members
The proposed settlement allows each class member to recover for up
to three illegal calls per telephone number. Since class members
may have received more than three unwanted calls, some may contend
that this represents an unfair outcome. Indeed, Objector Schilling
complains that the settlement is unfair for precisely this reason.
But capping the recovery is reasonable— without such a provision,
a relatively small number of class members could swallow up a
significant portion of the settlement fund, resulting in a smaller
per-claimant payout for a relatively minor actual injury. The Court
thus finds that the proposal is equitable for class members.
Adequacy of Relief
In considering whether the relief provided by the settlement is
adequate, Rule 23(e)(2) instructs the Court to take into
consideration the costs, risks, and delay of trial and appeal, the
effectiveness of the proposed method of distributing relief; the
terms of any proposed award of attorneys' fees; and any agreements
made in connection with the proposed settlement. nce the factors
articulated by the Seventh Circuit subsume most of these factors,
the Court will consider the adequacy of the settlement's relief
against the background of the factors.
Strength of Case against the Settlement Offer
The strength of plaintiffs' case on the merits balanced against the
amount offered in the settlement is the most important factor for
determining whether a proposed settlement is fair under Rule 23(e).
The Court must estimate the likely outcome of a trial in assessing
whether a settlement adequately disposes of the case. As it
currently stands, the settlement requires the Cruise Defendants to
pay $12,500,000 into a common settlement fund. After deducting
attorneys' fees, costs, administrative expenses, and an incentive
award for Charvat, the 274,851 class members who submitted timely
claims will receive their pro rata share of the settlement fund,
which amounts to an average of $22.17 per claim.
As some objectors note, that recovery is significantly below the
$500 recovery available under the statute for each call, or $1,500
per call for violations willfully or knowingly committed. But a
settlement does not need to provide the class with the maximum
possible damages in order to be reasonable.
Here, individual class members will receive compensation without
suffering more than a few calls or having to endure the time,
expense, and uncertainty of litigation. While the average consumer
payout of $22.17 is not anywhere the statutory maximum, it is also
not out of line with other approved TCPA class action settlements.
And given the extensive publicity received by the case and the
surge in claimants that resulted, it is not surprising that the
average payout is on lower end of approved TCPA class action
settlements. Given the above, the Court concludes that this factor
weighs in favor of approving the settlement.
Complexity, Length, and Expense of Future Litigation
The Court must consider the likely complexity, length, and expense
of continued litigation. Here, while the parties exchanged a
substantial amount of discovery, they had not yet proceeded to
filing motions for summary judgment or preparing for trial.2 Given
the course of this litigation, it is reasonable to assume that
summary judgment and pretrial issues would be hotly contested. As a
result, any relief to class members would still be far down the
road and may ultimately be entirely denied. Approving the proposed
settlement agreement will end the case and cause benefits to flow
in short order.
In sum, the Court finds that the stage of proceedings supports
approving the settlement.
Amount of Opposition
Significant opposition to a proposed settlement by interested
parties should signal to a court that the settlement should not be
approved. Courts assess whether opposition levels are low by
comparing the number of objectors and opt-outs to the number of
individuals reached by the notice plan. Opt-out and objection rates
below 0.01% suggest that a settlement is reasonable.
Here, as the settlement administrator, KCC initially received over
2.7 million claims, with 274,851 of those claims ultimately
accepted as valid. A total of 287 class members opted out of the
settlement and thirty-one objections were filed with the Court.
That means only 0.001% of valid claimants chose either to opt out
of the settlement or file an objection. Such a low percentage of
opposition strongly suggests that the settlement is fair,
reasonable, and adequate. While Objectors Johnson and Shelton
contend that objections are underreported because the process was
difficult and public perception led class members to think they
could not object, the Court finds this to be unlikely. Thirty-one
class members, including Johnson and Shelton, managed to file
objections, including several individuals who did so pro se, which
suggests that the process was readily accessible to class members.
Given the low harm experienced by class members, the Court finds
objector concerns regarding the low payout rate to be unwarranted.
Opinion of Competent Counsel
The opinion of competent counsel is relevant in determining whether
a class action settlement is fair, reasonable, and adequate. Class
Counsel here are experienced TCPA litigators who strongly support
the settlement. This factor weighs in favor of the settlement.
Stage of Proceedings and Amount of Discovery Completed
Finally, courts should consider the stage of proceedings and the
amount of discovery completed in order to determine "how fully the
district court and counsel are able to evaluate the merits of
plaintiffs' claims. Here, the parties engaged in a substantial
amount of discovery over the course of multiple years. Simply put,
the parties have completed enough discovery to place a reasoned
value on their respective positions and litigation risk. This
factor weighs in favor of settlement.
Absence of Collusion
In addition to the above factors, the Seventh Circuit has
emphasized the importance of constant vigilance regarding collusion
in class action settlements. The danger is especially salient in
class action suits, where the class has limited ability to hold
accountable either the named plaintiffs or class counsel. Courts
must be on the lookout for deals that promote the self-interest of
both class counsel and defendant" but fail to provide adequate
compensation for the class.
Here, the record provides no basis from which to conclude that the
proposed settlement resulted from collusion between or among the
parties. To the contrary, the parties have been embroiled in
contentious litigation for several years. The parties quarreled
over the extent of discovery and briefed several motions to compel
during the discovery period, prepared for and attended an
unsuccessful mediation, and presented oral argument at well over a
dozen motion hearings. In sum, the Court finds that nothing on the
record suggests the proposed settlement has been tainted by
collusion.
Objections to the Settlement
Thirty-one individuals have submitted objections arguing that the
Court should either modify or not approve the proposed settlement.
The Court has addressed some of the objectors' arguments above in
analyzing the factors for approval of a proposed class settlement
and will address those concerning the incentive award for Charvat
and Class counsel's attorneys' fees and costs below. The Court
focuses here on the remaining objections.
Three objectors take issue with the administrative costs for this
case, which they contend are excessive and not fully documented.
These concerns, however, were addressed by the Court at the final
approval hearing: the Court noted that costs had increased
significantly, and while that was not necessarily an indicator that
anything was amiss, it did not appear that KCC had fully documented
the work associated with the additional administrative steps taken
to effect notice and vet potential claimants. The Court finds that
KCC's response provides adequate assurance that the Settlement
Administrator devised and implemented an acceptable procedure for
providing multiple rounds of notice to potential claimants and
weeding out potentially fraudulent claims.
Charvat's Incentive Award
Charvat also seeks approval of an incentive award of $50,000 to
reward him for his participation as the named plaintiff in the
suit. Incentive awards are justified when necessary to induce
individuals to become named representatives. Such an award
compensates a named plaintiff for subjecting himself to various
risks, including the burdens of discovery and potential
responsibility for a defendant's costs or attorneys' fees should
the suit fail. In deciding whether an incentive award is proper
and, if so, in what amount, courts should consider the actions the
plaintiff has taken to protect the interests of the class, the
degree to which the class has benefitted from those actions, and
the amount of time and effort the plaintiff expended in pursuing
the litigation.
Here, the Court concludes that an incentive award to Charvat is
appropriate. Charvat chose to bear the risk of being the named
plaintiff and stayed involved throughout a lengthy discovery
process. Charvat should be rewarded for his service to the class.
That said, the Court finds the requested $50,000 to be excessive.
Incentive awards for class action plaintiffs are usually modest in
nature for good reason: the plaintiff's duties are not arduous in
nature and the risk of incurring liability is small. An award of
$50,000 would be a significant outlier for a named plaintiff in a
TCPA consumer class action. In this District, courts routinely
grant such plaintiffs incentive awards of only $5,000.
However, unlike most named TCPA plaintiffs, Charvat's participation
in the discovery process was extensive and included sitting for a
seven-hour deposition. Charvat has endured several years of
discovery, scrutiny, and inconvenience in pursuit of this case.
Under these circumstances, the Court believes an incentive award of
$25,000 is appropriate. This amount recognizes that Charvat's
participation in this litigation was greater than that experienced
by the typical TCPA.
Attorneys' Fees and Costs
To determine whether a requested fee award is reasonable, courts
must balance the competing goals of fairly compensating attorneys
for their services rendered on behalf of the class and of
protecting the interests of the class members in the fund.
Class Counsel here request an award of attorneys' fees in the
amount of $3,150,000. After subtracting administrative costs and a
$25,000 incentive award for Charvat as named plaintiff, that
amounts to 33.99% of the net settlement fund. Class Counsel request
the Court calculate this award by using a percentage-of-the-fund
method that is, determining what fee arrangement the parties would
have otherwise bargained for at the outset of litigation based on a
percentage of the plaintiffs' ultimate recovery.
In class action cases, attorneys' fees should approximate the
market rate that prevails between willing buyers and willing
sellers of legal services.
The Court agrees with Class Counsel that using the
percentage-of-recovery method is preferable to the lodestar method
in this instance. The normal practice in consumer class actions is
to negotiate a fee arrangement based on a percentage of recovery.
A 33.99% market rate award in a complex case that involved a
lengthy and contentious discovery period would by no means be an
unreasonable outlier.
Therefore, the Court finds that a 33.99% attorneys' fee award
reflects the market rate and takes into account the risk of
nonpayment. The requested fee is granted.
Charvat's motion for final approval of the class settlement is
granted. Charvat's motion for attorneys' fees and costs is also
granted in its entirety. Charvat's motion for an incentive award is
granted in amount of $25,000. Objectors Dunlap, Johnson, and
Shelton's motion for an incentive award is denied. Objectors
Dunlap, Johnson, and Shelton's motion for attorneys' fees and costs
is also denied.
A full-text copy of the District Court's October 28, 2019
Memorandum Opinion is available at https://tinyurl.com/yydswkbc
from Leagle.com.
Philip Charvat, on behalf of himself and others similarly situated,
Counter Defendant, represented by Alexander Holmes Burke , Burke
Law Offices, LLC, 155 N. MI Ave Suite 9020 Chicago, IL 60601,
Edward A. Broderick - ted@broderick-law.com - Broderick Law, P.C.,
Matthew Mccue - mmccue@massattorneys.net - Law Office Of Matthew
Mccue & Matthew Mccue , Law Office Of Matthew Mccue, pro hac vice.
Carnival Corporation & PLC, Defendant, represented by Jeffrey Scott
Becker - jbecker@smbtrials.com -Swanson Martin & Bell, LLP, Darren
Brett Watts - dwatts@smbtrials.com -Swanson, Martin & Bell, Joseph
Paul Kincaid - jkincaid@smbtrials.com - Swanson, Martin & Bell,
Joshua Erik Bidzinski - jbidzinski@smbtrials.com - Swanson, Martin
& Bell, Llp & Lena Shapiro - lshapiro@smbtrials.com - Swanson,
Martin & Bell, Llp.
NCL (Bahamas) Ltd., Defendant, represented by Jeffrey Eric Foreman
- jforeman@fflegal.com - Foreman Friedman, PA, Catherine J. MacIvor
- cmacivor@fflegal.com - Foreman Friedman, PA, pro hac vice &
Daniela Ferro Janna , Foreman Friedman Pa., One Biscayne Tower,
Suite 2300 2 South Biscayne Boulevard Miami, FL 33131
Royal Caribbean Cruises, Ltd., Defendant, represented by Jeffrey
Eric Foreman , Foreman Friedman, PA, Catherine J. MacIvor , Foreman
Friedman, PA, pro hac vice, Daniela Ferro Janna , Foreman Friedman
Pa & Nathan I. Neff , Neff Law Group PC.
Elizabeth Valente, Defendant, pro se.
Resort Marketing Group, Inc., Defendant, pro se.
Philip Charvat, on behalf of himself and others similarly situated,
Plaintiff, represented by Alexander Holmes Burke , Burke Law
Offices, LLC, Daniel J. Marovitch , Burke Law Offices, LLC, Edward
A. Broderick , Broderick Law, P.C., Matthew Mccue , Law Office Of
Matthew Mccue & Matthew Mccue , Law Office Of Matthew Mccue, pro
hac vice.
SANDALS RESORTS: Court Dismisses Gordon Class Suit
--------------------------------------------------
The United States District Court for the Southern District of
Florida issued an Order granting Defendants' Motion to Dismiss the
case captioned Anat Gordon, Plaintiff, v. Sandals Resorts
International, Ltd., Unique Vacations, Inc., Defendants, Civil
Action No. 19-22677-Civ-Scola (S.D. Fla.).
Gordon filed a nationwide class action complaint against the
Defendants alleging that they engaged in deceptive and unfair
practices in violation of Florida Deceptive and Unfair Trade
Practices Act (FDUTPA) and unjust enrichment under Florida law.
The complaint specifically alleges that the Defendants market their
Travel Protection Plans (TPP) on the sandals.com website as an
independently underwritten travel insurance policy offered by third
parties. The way the TPPs are marketed would lead a reasonable
consumer to believe that they are contracting directly with the
insurance provider to purchase the Travel Insurance Policy, and
that the Defendants are passing the premiums through to the
third-party insurance company. In reality, the Defendants received
an undisclosed kickback from the insurance providers for each
policy sold through the TPPs.
Each time that the Plaintiff purchased a TPP, booked a hotel
reservation, or paid for her stay, she was presented with terms &
conditions that included a forum selection clause.
The Defendant UVI filed a motion to dismiss.
Legal Standard
The appropriate way to enforce a forum-selection clause pointing to
a state or foreign forum is through the doctrine of forum non
conveniens. Ordinarily, to obtain dismissal based on forum non
conveniens, the moving party must demonstrate that (1) an adequate
alternative forum is available (2) the public and private factors
weigh in favor of dismissal and (3) the plaintiff can reinstate his
suit in the alternative forum without undue inconvenience or
prejudice.
The Plaintiffs argue that the forum selection clause is invalid,
that Gordon's claims are outside of the scope of the forum
selection clause, and that the forum non conveniens factors do not
warrant dismissal.
The parties agreed to a valid and enforceable forum-selection
clause
A forum-selection clause will be invalidated when: (1) its
formation was induced by fraud or overreaching (2) the plaintiff
would be deprived of its day in court because of inconvenience or
unfairness (3) the chosen law would deprive the plaintiff of a
remedy or (4) enforcement of the clause would contravene public
policy.
Fraud or overreaching
In order for a forum selection clause to be invalidated on the
basis of the first factor, fraud or overreaching, a plaintiff must
specifically allege that the clause was included in the contract at
issue because of fraud.
Gordon does not contend that the contract's formation was induced
by fraud, and therefore the first factor does not support
non-enforcement of the forum selection clause. The second factor
also does not support non-enforcement.
Inconvenience or unfairness
To invalidate a contract on the second ground, a plaintiff must
show that litigation in the contractual forum will be so gravely
difficult and inconvenient that he will for all practical purposes
be deprived of his day in court.
Gordon has not made this showing. As a New York resident, she would
need to fly back and forth to Florida as well as TCI. Therefore the
second factor does not render the forum selection clause
unenforceable.
Deprivation of a Remedy
Gordon argues that TCI laws do not provide her with a remedy
comparable to FDUTPA. She contends that TCI would deprive her of a
remedy because TCI's consumer protection laws do not have a private
right of action for damages and that TCI prohibits contingency fees
and therefore she could not afford an attorney capable of defending
a nationwide class action.
The Eleventh Circuit has held that it will not invalidate choice
clauses simply because the remedies available in the contractually
chosen forum are less favorable than those available in the courts
of the United States.
Gordon has presented no evidence that its remedy would be
altogether lost in the instant action, and the possibility of
Plaintiff being deprived of some relief is not sufficient to find
that the foreign forum is inadequate.
With regards to Gordon's second argument, the unavailability of
contingency fees does not invalidate a forum selection clause even
if their unavailability would make it impossible for Gordon to
bring a class action.
Public policy
UVI argues that the enforcement of the clause would contravene
public policy and therefore the clause should be invalidated. It
cites to Davis v. Oasis Legal Finance Operating Company, LLC 936
F.3d 1174 (11th Cir. 2019), and argues that Davis compels
invalidating the forum selection clause.
In Davis, the plaintiffs filed a class action complaint against
lenders alleging that the loan agreements violated Georgia's Payday
Lending Act, the Industrial Loan Act, and usury laws. The Court
found the forum selection clause to be contrary to Georgia public
policy. In doing so, it cited to an explicit prohibition on
out-of-state forum selection clauses in Georgia's Payday Lending
Act (PLA) and to a subsequent Georgia Supreme Court case ruling
that the PLA established a clear public policy against payday
lenders that have attempted to skirt the laws of Georgia by use of
forum selection clauses.
Florida has a muddled public policy regarding whether a forum
selection clause should be enforced against a plaintiff bringing a
FDUPTA claim. Unlike the Georgia Payday Lending Act, FDUPTA is
silent on the issue of forum selection clauses. The Florida courts
have conflicting holdings regarding when and if a forum selection
clause is enforceable against a FDUPTA claim.
Public policy is an amorphous concept. Accordingly, it has been
held that, the delicate and undefined power of courts to declare a
contract void as contravening public policy should be exercised
with great caution. Unlike the Georgia public policy in Davis which
was built on a solid foundation, the Florida public policy is not
clear and the courts articulate conflicting policies regarding the
application of forum selection clauses to FDUPTA claims and class
action claims.
Therefore, the Court declines to find that the enforcement of the
forum selection clause would contravene Florida public policy.
Gordon's claims fall within the scope of the forum selection
clause
Gordon argues that her claims fall outside the scope of the forum
selection clause. Specifically, she argues that the language any
and all claims that each such Guest may have in connection with or
in any way incident or related to the undersigned Guest's or
Guests') stay at the hotel/resort does not include the FDUTPA and
unjust enrichment claims because they are not related to Gordon's
stay.
First, Gordon's trip insurance purchases to insure her stay is in
connection with or in any way incident or related to her stay at
the hotel and thus falls within the scope of the clause.
Second, the Court need not decide whether the forum selection
clause from the terms & conditions applies to non-personal injury
claims. Gordon bought TPP and was not presented with the forum
selection clause from the On Resort Guest Registration only one
time. On that occasion, Gordon was refunded in full for her trip
insurance purchase. That claim is therefore moot.
The forum selection clause requires the dismissal of this action
under a forum non conveniens analysis
The Court must consider the relevant public interest factors to
determine whether dismissal is appropriate. The public interest
factors to be considered include: the administrative difficulties
flowing from court congestion; the local interest in having
localized controversies decided at home; the interest in having the
trial of a diversity case in a forum that is at home with the law
that must govern the action and the avoidance of unnecessary
problems in conflicts of law, or in the application of foreign
law.
First, the Court considers whether administrative difficulties
flowing from court congestion weigh in favor of dismissal. The
Court notes that the Southern District of Florida has one of the
busiest dockets in the country, and this factor, thus weighs in
favor of dismissal. Nonetheless, this factor generally does not
warrant significant consideration in the forum non conveniens
analysis, and the Court does not accord it much weight.
Second, the Court finds that the local interest in adjudicating
this controversy weighs in favor of dismissal to TCI. The Court
first acknowledges the general proposition that a general interest
exists in allowing United States citizens to bring suit in a United
States court. However, the events that are the subject of this suit
did not occur in Florida. The Plaintiff is from New York, and the
contract was signed in TCI. That forum is highly dependent on
tourism and thus, has a strong interest in adjudicating claims that
arose from the tourism activities of the Plaintiffs and their
decedents.
Therefore, this factor weighs in favor of dismissal.
Third, TCI law governs the action since Gordon signed an
enforceable choice of law provision that governs this claim.
Therefore, this factor, too, weighs in favor of dismissal.
In sum, the Court grants the Defendant's motion to dismiss. The
case is dismissed without prejudice and with leave to refile in
TCI. The Court denies all pending motions as moot and directs the
Clerk to close this case.
A full-text copy of the District Court's November 4, 2019 Order is
available at https://tinyurl.com/yjhwk2ha from Leagle.com
Anat Gordon, on her own behalf and on behalf of all others
similarly situated, Plaintiff, represented by Daniel Wayne Grammes
, Lipcon, Margulies, Alsina, and Winkleman, P.A., One Biscayne
Tower 2 S Biscayne Blvd #1776, Miami, FL 33131, Howard Mitchell
Bushman - howard@moskowitz-law.com - The Moskowitz Law Firm, PLLC,
Jason Robert Margulies , Lipcon Margulies, Alsina & Winkleman,
P.A., One Biscayne Tower, 2 S Biscayne Blvd #1776, Miami, FL
33131, Joseph M. Kaye - joseph@moskowitz-law.com - The Moskowitz
Law Firm, PLLC, Marc E. Weiner , Lipcon, Margulies, Alsina,
Winkleman, P.A., Michael A. Winkleman , Lipcon Margulies Alsina &
Winkleman, One Biscayne Tower, 2 S Biscayne Blvd #1776, Miami, FL
33131 & Adam M. Moskowitz - adam@moskowitz-law.com - The Moskowitz
Law Firm, PLLC.
SANDALS RESORTS INTERNATIONAL, LTD, doing business as Sandals &
UNIQUE VACATIONS, INC., doing business as Unique Vacations,
Defendants, represented by Thomas E. Scott, Jr. -
thomas.scott@csklegal.com - Cole Scott & Kissane.
SHERATON OPERATING: Guijarro Suit Removed to S.D. California
------------------------------------------------------------
The class action lawsuit styled as Jorge Guijarro individually, and
on behalf of all other similarly situated current and former
employees of Sheraton Operating Corporation, Plaintiff v. Sheraton
Operating Corporation, a corporation, the Defendant and DOES 1
through 100 inclusive, Case No. 37-02019-00055141-CU-OE-CTL, was
removed from the San Diego County Superior Court to the U.S.
District Court for the Southern District of California (San Diego)
on Nov 22, 2019.
The Southern District of California Court Clerk assigned Case No.
3:19-cv-02237-L-LL to the proceeding. The case is assigned to the
Hon. Judge M. James Lorenz.
The suit alleges violation of jobs-related laws.
Sheraton Operating Corporation was founded in 2006. The Company's
line of business includes operating public hotels and motels.
The Plaintiff is represented by:
Douglas W. Perlman, Esq.
RASTEGAR LAW GROUP, APC
22760 Hawthorne Boulevard, Suite 200
Torrance, CA 90505
Telephone: (310) 961-9600
Facsimile: (310) 961-9094
E-mail: douglas@rastegarlawgroup.com
- and -
Barbara J. Miller, Esq.
MORGAN LEWIS AND BOCKIUS
600 Anton Blvd., Suite 1800
Costa Mesa, CA 92626
Telephone: (714) 830-0600
Facsimile: (714) 830-0700
E-mail: barbara.miller@morganlewis.com
SMX LLC: Crawford Seeks Overtime Wages for Non-Exempt Recruiters
----------------------------------------------------------------
TAMRA CRAWFORD, Individually, and on behalf of herself and other
similarly situated current and former employees, Plaintiff v. SMX,
LLC, d/b/a STAFF MANAGEMENT/SMX, an Illinois Limited Liability
Company, Defendant, Case No. 2:19-cv-02812-TLP-tmp (W.D. Tenn.,
Nov. 22, 2019), seeks to recover under the Fair Labor Standards Act
unpaid overtime compensation owed to the Plaintiff and other
employees.
The Plaintiff has been employed by the Defendant as a non-exempt
recruiter in Memphis, Shelby County, Tennessee. She seeks to
represent those who have worked as non-exempt recruiters at any of
the Defendant's recruiting offices/staffing centers in the United
States within the three years preceding the filing of the action.
As a direct and proximate cause of the Defendant's unlawful
conduct, the Plaintiff and similarly situated employees have
suffered and will continue to suffer a loss of income and other
damages, the lawsuit says.
SMX is an Illinois limited liability company and a leading staffing
company with recruiting offices throughout the United States. The
Defendant's Memphis operations primarily focus on providing
staffing services for a Nike Distribution Center.[BN]
The Plaintiff is represented by:
Gordon E. Jackson, Esq.
J. Russ Bryant, Esq.
Robert E. Turner, IV, Esq.
Robert E. Morelli, III, Esq.
JACKSON, SHIELDS, YEISER, HOLT, OWEN & BRYANT
262 German Oak Drive
Memphis, TN 38018
Telephone: (901) 754-8001
Facsimile: (901) 754-8524
E-mail: gjackson@jsyc.com
rbryant@jsyc.com
rturner@jsyc.com
rmorelli@jsyc.com
SPRINT/UNITED MANAGEMENT: Denied Fuhr Breaks, Wage Statements
-------------------------------------------------------------
Josh Fuhr, individually and on behalf of other persons similarly
situated, Plaintiff, v. Sprint/United Management Company,
Defendants, Case No. 19-cv-02418 (S.D. Cal. December 17, 2019),
seeks redress for failure to pay overtime and minimum wages,
failure to provide meal breaks and proper wage statements and
failure to pay earned wages upon discharge including waiting time
penalties under Unfair Business Practices statures of the
California Business and Professions Code, the California Labor Code
and applicable Industrial Welfare Commission Orders.
Defendant is in the business of selling mobile telephone devices,
accessories and services at its retail stores and operates numerous
offices and facilities throughout California where Fuhr worked as a
non-exempt, hourly-paid store manager in their Spring Valley store
from approximately August 2017 to December 2017.[BN]
Plaintiff is represented by:
David R. Markham, Esq.
Lisa Brevard, Esq.
Maggie K. Realin, Esq.
THE MARKHAM LAW FIRM
750 B Street, Suite 1950
San Diego, CA 92101
Tel: (619) 399-3995
Fax: (619) 615-2067
Email: dmarkham@markham-law.com
mrealin@markham-law.com
lbrevard@markham-law.com
- and -
Walter Haines, Esq.
UNITED EMPLOYEES LAW GROUP
5500 Bolsa Avenue, Suite 201
Huntington Beach, CA 92649
Tel: (888) 474-7242
Fax: (562) 256-1006
Email: walterhaines@yahoo.com
STOCKX INC: Harrington Sues Over Data Breach
--------------------------------------------
Richard Harrington, individually, and on behalf of all others
similarly situated, Plaintiff, v. Stockx, Inc. and Stockx, LLC,
Defendant, Case No. 19-cv-13704, (E.D. Mich., December 17, 2019)
seeks all damages and appropriate injunctive and/or declaratory
relief resulting from negligence and for violations of New York's
General Business Laws.
Stockx, Inc. and Stockx, LLC operate an online platform for stock
trading. On August 8, 2019, StockX acknowledged that their computer
system had been breached and the personal information of its
customers, including Harrington, had been compromised. [BN]
Plaintiff is represented by:
Gary F. Lynch, Esq.
Kevin W. Tucker, Esq.
CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Tel: (412) 322-9243
Email: glynch@carlsonlynch.com
- and -
Nick Suciu III, Esq.
BARBAT, MANSOUR & SUCIU PLLC
1644 Bracken Rd.
Bloomfield Hills, MI 48302
Tel: (313) 303-3472
Email: nicksuciu@bmslawyers.com
STRADA SERVICES: Serna Seeks to Recover Overtime Wages Under FLSA
-----------------------------------------------------------------
DELFINA SERNA, on behalf of herself and all others similarly
situated, Plaintiff v. STRADA SERVICES INC., A Florida Profit
Corporation, Defendant, Case No. 8:19-cv-02891-TPB-CPT (M.D. Fla.,
Nov. 22, 2019), seeks to recover money damages for unpaid overtime
wages pursuant to the Fair Labor Standards Act.
The Plaintiff was hired by the Defendant in June 2018 to work as a
non-exempt electrician, performing electrical related duties and
paid on a piece-rate and hourly basis, at its Tampa, Florida
location.
From June 2018 and continuing through November 2018, the Plaintiff
worked in excess of 40 hours per week for which the Plaintiff was
not compensated at the statutory rate of one and one-half times
Plaintiff's regular rate of pay, the lawsuit says.
The Defendant operates a large scale electrical company based in
Sanford, Florida, and has offices and locations throughout
Florida.[BN]
The Plaintiff is represented by:
Noah E. Storch, Esq.
RICHARD CELLER LEGAL, P.A
10368 W. State Road 84, Suite 230
Davie, FL 33324
Telephone: (866) 344-9243
Facsimile: (954) 337-2771
E-mail: noah@floridaovertimelawyer.com
TRANSPORTE EL SOL: Piedra Seeks to Recoup Unpaid Wages Under FLSA
-----------------------------------------------------------------
YOANIS PIEDRA, CAMILO HERNANDEZ, and others similarly-situated,
Plaintiffs v. TRANSPORTE EL SOL DE AMERICA, CORP., a Florida
corporation, PATRICIA LAYA individually and JOSE M. GUZMAN,
individually, Defendants, Case No. 1:19-cv-24848-MGC (S.D. Cal.,
Nov. 22, 2019), seeks to recover money damages for unpaid minimum
wages pursuant to the Fair Labor Standards Act.
The Plaintiffs also seek to recover damages for unlawful
retaliatory termination of employment in violation of 29 U.S.C.
Section 215(a)(3).
The Defendants employed the Plaintiffs as drivers. The Plaintiffs
worked from September 17, 2019, through November 1, 2019. The
Plaintiffs were both truck drivers and they were paid at the rate
of $00.60 per mile. Both Plaintiffs drove the same truck. One
Plaintiff would drive while the other Plaintiff accompanied and/or
slept on the sleeper berth of the truck. That wage was then divided
in two and each Plaintiff would receive half of the total $00.60
per mile compensation.
The Defendants refused to pay a wage to the Plaintiffs for the
period of October 24, through November 1, 2019, the lawsuit says.
The Defendant is a transportation company.[BN]
Edilberto O. Marban, Esq.
THE LAW OFFICES OF EDDY O. MARBAN
2655 S. LeJeune Road, Suite 804
Coral Gables, FL 33134
Telephone (305) 448-9292
Facsimile (786) 309-9978
E-mail: em@eddymarbanlaw.com
TRANSWORLD SYSTEMS: Coulter Seeks to Certify Class of Consumers
---------------------------------------------------------------
In the class action lawsuit styled as CARISSA COULTER, on behalf of
herself and all other similarly situated consumers, the Plaintiff,
vs. TRANSWORLD SYSTEMS INC., the Defendant, Case No.
2:18-cv-04575-AB (E.D. Pa.), Plaintiff asks the Court for an
order:
1. approving thes case to proceed as a class action pursuant to
Federal Rule of Civil Procedure 23 in order to pursue claims
against Defendant; and
2. certifying a class defined as:
"all consumers with a Pennsylvania address that have
received collection letters from Transworld concerning debts
stemming from PECO within one year prior to the filing of
this complaint that contain the language 'your account
balance may be periodically increased due to the addition of
accrued interest or other charges as provided in the
agreement with the original creditor or as otherwise
provided by state law.'"
The Defendant has disclosed that there are well in excess of 40
individuals within the class definition who were sent a collection
letter with the same language as Plaintiff and the same creditor as
Plaintiff.
The action arises from the Defendant's violation of the Fair Debt
Collection Practices Act in its attempt to collect a debt from
Plaintiff. The Plaintiff filed an initial Complaint on October 24,
2018, alleging that Defendant violated the provisions of the FDCPA
banning false, deceptive, or misleading collection conduct; falsely
representing the character, amount, and legal status of a debt; and
unfair debt collection practices.[CC]
Attorneys for the Plaintiff are:
Daniel Zemel, Esq.
Nicholas Linker, Esq.
ZEMEL LAW LLC
1373 Broad St. Suite 203C
Clifton, NJ 07013
Telephone: (862) 227-3106
Ep-mail: dz@zemellawllc.com
nl@zemellawllc.com
TWENTY-ONE EIGHTY-FIVE: Arndt Consumer Suit Removed to S.D. Fla.
----------------------------------------------------------------
The class action lawsuit styled as Kelly Arndt and Shirley Silkiss,
individually and o/b/o all others similarly situated, Plaintiffs v.
Twenty-One Eighty-Five, LLC, a Delaware limited liability company,
and State Farm Bank, F.S.B., a federal savings bank, Defendants,
Case No. CACE-19-021264, was removed from the Florida Circuit
Court, 17th Judicial Circuit, to the U.S. District Court for the
Southern District of Florida (Ft. Lauderdale) on Nov. 22, 2019.
The Southern District of Florida Court Clerk assigned Case No.
0:19-cv-62902-CMA to the proceeding. The case is assigned to the
Hon. Judge Cecilia M. Altonaga.
The nature of suit is stated as consumer credit.
State Farm Bank is a Member of Federal Deposit Insurance
Corporation and an equal housing lender. Twenty-One Eighty-Five is
an entity controlled by State Farm Life Insurance Company.[BN]
The Plaintiffs are represented by:
Kelly Arndt, Esq.
ROBERT WILLIAM MURPHY
1212 SE, 2nd Avenue
Fort Lauderdale, FL 33316
Telephone: (954) 763-8660
Facsimile: (954) 763-8607
E-mail: rwmurphy@lawfirmmurphy.com
The Defendants are represented by:
Marcy Levine Aldrich, Esq.
Sara Ann Brubaker, Esq.
Enid Ginnette Childs, Esq.
AKERMAN LLP
Three Brickell City Centre
98 Southeast Seventh Street
Miami, FL 33131
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
E-mail: marcy.aldrich@akerman.com
sara.brubaker@akerman.com
ginny.childs@akerman.com
YARDSTICK MANAGEMENT: Morris Seeks Minimum and Overtime Wages
-------------------------------------------------------------
Brittany Morris, on behalf of herself and all those similarly
situated, Plaintiff v. Yardstick Management II, LLC, dba The Park
Street Food Bar, an Arizona limited liability company, Defendant,
Case No. 2:19-cv-05673-DJH (D. Ariz., Nov. 22, 2019), alleges that
pursuant to the Fair Labor Standards Act and the Arizona wage laws,
the Plaintiff and other employees are entitled to unpaid wages,
including overtime and minimum wages.
The Plaintiff asserts claims on behalf of herself and all other
similarly situated employees of the Defendant, who customarily and
regularly receive tips and elect to opt into this action pursuant
to the FLSA.
As a direct result of Park Street's conduct, the Plaintiff has
suffered emotional distress, reputational harm, lost income in the
form of past, present, and future wages and benefits, and other
monetary and non-monetary benefits due, the lawsuit says.
Ms. Morris was employed by Park Street in Phoenix, Arizona, as a
Server, Bartender, Food Runner, and Host, which were non-exempt
positions that paid $8.50 per hour plus tips.
Park Street is an Arizona limited liability company that does
business as a restaurant and bar in Phoenix, Arizona.[BN]
The Plaintiff is represented by:
Ty D. Frankel, Esq.
Patricia N. Syverson, Esq.
Law Offices of BONNETT, FAIRBOURN,
FRIEDMAN & BALINT, P.C.
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: (602) 274-1100
E-mail: tfrankel@bffb.com
psyverson@bffb.com
Asbestos Litigation
ASBESTOS UPDATE: 2 CIRCOR Units Still Defend Claims at Sept. 29
---------------------------------------------------------------
CIRCOR International, Inc. said in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended September 29, 2019, that asbestos-related product liability
claims continue to be filed against subsidiaries Spence Engineering
Company, Inc. and CIRCOR Instrumentation Technologies, Inc.
The Company states, "Asbestos-related product liability claims
continue to be filed against two of our subsidiaries: Spence
Engineering Company, Inc. ("Spence"), the stock of which we
acquired in 1984; and CIRCOR Instrumentation Technologies, Inc.
(f/k/a Hoke, Inc.) ("Hoke"), the stock of which we acquired in
1998. Due to the nature of the products supplied by these
entities, the markets they serve and our historical experience in
resolving these claims, we do not expect that these
asbestos-related claims will have a material adverse effect on the
financial condition, results of operations or liquidity of the
Company.
A full-text copy of the Form 10-Q is available at
https://is.gd/8Uto4S
ASBESTOS UPDATE: ArvinMeritor Had 1,400 Pending Claims at Sept. 30
------------------------------------------------------------------
Meritor, Inc.'s subsidiary, ArvinMeritor, Inc., still defends
itself against approximately 1,400 pending active asbestos claims
in lawsuits at September 30, 2019, according to Meritor's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended September 29, 2019.
The Company states, "ArvinMeritor, Inc. ("AM"), a predecessor of
Meritor, along with many other companies, has been named as a
defendant in lawsuits alleging personal injury as a result of
exposure to asbestos used in certain components of Rockwell
products many years ago. Liability for these claims was
transferred at the time of the spin-off of the automotive business
from Rockwell in 1997. Rockwell had approximately 1,400 pending
active asbestos claims in lawsuits that name AM, together with many
other companies, as defendants at September 30, 2019 and 2018.
"A significant portion of the claims do not identify any of
Rockwell's products or specify which of the claimants, if any, were
exposed to asbestos attributable to Rockwell's products, and past
experience has shown that the vast majority of the claimants will
likely never identify any of Rockwell's products. Historically, AM
has been dismissed from the vast majority of similar claims filed
in the past with no payment to claimants. For those claimants who
do show that they worked with Rockwell's products, management
nevertheless believes it has meritorious defenses, in substantial
part due to the integrity of the products involved and the lack of
any impairing medical condition on the part of many claimants. "
A full-text copy of the Form 10-K is available at
https://is.gd/Z0UyNn
ASBESTOS UPDATE: Ashland Global Had $352MM Reserves at September 30
-------------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended September 30, 2019, that total reserves for asbestos claims
were US$352 million at September 30, 2019 compared to US$380
million at September 30, 2018.
The Company states, "The claims alleging personal injury caused by
exposure to asbestos asserted against Ashland result primarily from
indemnification obligations undertaken in 1990 in connection with
the sale of Riley, a former subsidiary. The amount and timing of
settlements and number of open claims can fluctuate from period to
period.
"From the range of estimates, Ashland records the amount it
believes to be the best estimate of future payments for litigation
defense and claim settlement costs, which generally approximates
the mid-point of the estimated range of exposure from model
results. Ashland reviews this estimate and related assumptions
quarterly and annually updates the results of a non-inflated,
non-discounted approximate 50-year model developed with the
assistance of Nathan.
"During the most recent update completed during 2019, it was
determined that the liability for Ashland asbestos-related claims
should be increased by US$1 million. Total reserves for asbestos
claims were US$352 million at September 30, 2019 compared to US$380
million at September 30, 2018."
A full-text copy of the Form 10-K is available at
https://is.gd/0vnTu5
ASBESTOS UPDATE: Ashland Global Had 53,000 Open Claims at Sept. 30
------------------------------------------------------------------
Ashland Global Holdings Inc. had 53,000 open claims related to
asbestos-related matters, according to the Company's Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended September 30, 2019. The number of claims
excludes asbestos matters relating to wholly-owned subsidiary
Hercules LLC.
The Company states, "Ashland has insurance coverage for certain
litigation defense and claim settlement costs incurred in
connection with its asbestos claims, and coverage-in-place
agreements exist with the insurance companies that provide
substantially all of the coverage that will be accessed.
"For the Ashland asbestos-related obligations, Ashland has
estimated the value of probable insurance recoveries associated
with its asbestos reserve based on management's interpretations and
estimates surrounding the available or applicable insurance
coverage, including an assumption that all solvent insurance
carriers remain solvent. Substantially all of the estimated
receivables from insurance companies are expected to be due from
domestic insurers, all of which are solvent.
"At September 30, 2019, Ashland's receivable for recoveries of
litigation defense and claim settlement costs from insurers
amounted to US$123 million (excluding the Hercules receivable for
asbestos claims). Receivables from insurers amounted to US$140
million at September 30, 2018. During 2019, the annual update of
the model used for purposes of valuing the asbestos reserve and its
impact on valuation of future recoveries from insurers, was
completed. This model update resulted in a US$5 million decrease
in the receivable for probable insurance recoveries."
A full-text copy of the Form 10-K is available at
https://is.gd/0vnTu5
ASBESTOS UPDATE: Cabot Still Defends 35,000 Claimants at Sept. 30
-----------------------------------------------------------------
Cabot Corporation disclosed in its Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
September 30, 2019, that there were approximately 35,000 claimants
in pending cases asserting claims against the Company's American
Optical Corporation in connection with respiratory products as of
both September 30, 2019 and 2018.
The Company states, "We have exposure in connection with a safety
respiratory products business that a subsidiary acquired from
American Optical Corporation ("AO") in an April 1990 asset purchase
transaction. The subsidiary manufactured respirators under the AO
brand and disposed of that business in July 1995. In connection
with its acquisition of the business, the subsidiary agreed, in
certain circumstances, to assume a portion of AO's liabilities,
including costs of legal fees together with amounts paid in
settlements and judgments, allocable to AO respiratory products
used prior to the 1990 purchase by the Cabot subsidiary. In
exchange for the subsidiary's assumption of certain of AO's
respirator liabilities, AO agreed to provide to the subsidiary the
benefits of: (i) AO's insurance coverage for the period prior to
the 1990 acquisition and (ii) a former owner's indemnity of AO
holding it harmless from any liability allocable to AO respiratory
products used prior to May 1982.
"Generally, these respirator liabilities involve claims for
personal injury, including asbestosis, silicosis and coal worker's
pneumoconiosis, allegedly resulting from the use of respirators
that are alleged to have been negligently designed and/or labeled.
Neither Cabot, nor its past or present subsidiaries, at any time
manufactured asbestos or asbestos-containing products. At no time
did this respiratory product line represent a significant portion
of the respirator market.
"The subsidiary transferred the business to Aearo Corporation
("Aearo") in July 1995. Cabot agreed to have the subsidiary retain
certain liabilities associated with exposure to asbestos and silica
while using respirators prior to the 1995 transaction so long as
Aearo paid, and continues to pay, Cabot an annual fee of
US$400,000. Aearo can discontinue payment of the fee at any time,
in which case it will assume the responsibility for and indemnify
Cabot against those liabilities which Cabot's subsidiary had agreed
to retain. We anticipate that we will continue to receive payment
of the US$400,000 fee from Aearo and thereby retain these
liabilities for the foreseeable future. We have no liability in
connection with any products manufactured by Aearo after 1995.
"In addition to Cabot's subsidiary, other parties are responsible
for significant portions of the costs of respirator liabilities,
leaving Cabot's subsidiary with a portion of the liability in only
some of the pending cases. These parties include Aearo, AO, AO's
insurers, another former owner and its insurers, and a third-party
manufacturer of respirators formerly sold under the AO brand and
its insurers (collectively, with Cabot's subsidiary, the "Payor
Group").
"As of both September 30, 2019 and 2018, there were approximately
35,000 claimants in pending cases asserting claims against AO in
connection with respiratory products. The vast majority of these
claims have been pending for more than 10 years with little or no
activity and have therefore been excluded from our estimates of our
liability for respirator claims. Cabot has contributed to the
Payor Group's defense and settlement costs with respect to a
percentage of pending claims depending on several factors,
including the period of alleged product use. In order to quantify
our estimated share of liability for pending and future respirator
liability claims, we have engaged, through counsel, the assistance
of Nathan Associates, Inc. ("Nathan"), a leading consulting firm in
the field of tort liability valuation. The methodology used to
estimate the liability addresses the complexities surrounding our
potential liability by making assumptions about our likely exposure
related to claims pending for less than 10 years and the estimated
number of future claimants with respect to periods of asbestos,
silica and coal mine dust exposure and respirator use. Using those
and other assumptions, we estimate the costs that would be incurred
in defending and resolving both currently pending and future
claims. During the year ended September 30, 2019, we updated this
estimate with the assistance of Nathan. Based on the updated
estimate, we increased our reserve as of September 30, 2019 for our
estimated share of the liability for pending and future respirator
claims by US$20 million to US$35 million. This increase, as well
as the higher payments we made in fiscal 2019, reflects higher
costs of defending and resolving these claims. We made payments
related to our respirator liability of US$10 million in fiscal
2019, and US$3 million in each of fiscal 2018 and fiscal 2017.
"Our current estimate of the cost of our share of existing and
future respirator liability claims is based on facts and
circumstances existing at this time. Developments that could
affect our estimate include, but are not limited to, (i)
significant changes in the number of future claims, (ii) changes in
the rate of dismissals without payment of pending claims, (iii)
significant changes in the average cost of resolving claims,
including potential settlements of groups of claims, (iv)
significant changes in the legal costs of defending these claims,
(v) changes in the nature of claims received, (vi) trial and
appellate outcomes, (vii) changes in the law and procedure
applicable to these claims, (viii) the financial viability of
members of the Payor Group, (ix) a change in the availability of
the insurance coverage of the members of the Payor Group or the
indemnity provided by AO's former owner, (x) changes in the
allocation of costs among the Payor Group, and (xi) a determination
that the assumptions that were used to estimate our share of
liability are no longer reasonable. We cannot determine the impact
of these potential developments on our current estimate of our
share of liability for these existing and future claims.
Accordingly, the actual amount of these liabilities for existing
and future claims could be different than the reserved amount."
A full-text copy of the Form 10-K is available at
https://is.gd/nsyHjH
ASBESTOS UPDATE: GMS Units Still Faces 32 PI Suits at October 31
----------------------------------------------------------------
GMS Inc.'s subsidiaries are still defending themselves against 32
pending asbestos-related personal injury lawsuits as of October 31,
2019, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
October 31, 2019.
The Company states, "The building materials industry has been
subject to personal injury and property damage claims arising from
alleged exposure to raw materials contained in building products as
well as claims for incidents of catastrophic loss, such as building
fires. As a distributor of building materials, we face an inherent
risk of exposure to product liability claims in the event that the
use of the products we have distributed in the past or may in the
future distribute is alleged to have resulted in economic loss,
personal injury or property damage or violated environmental,
health or safety or other laws.
"Such product liability claims have included and may in the future
include allegations of defects in manufacturing, defects in design,
a failure to warn of dangers inherent in the product, negligence,
strict liability or a breach of warranties. In particular, certain
of our subsidiaries have been the subject of claims related to
alleged exposure to asbestos-containing products they distributed
prior to 1979.
"Since 2002 and as of October 31, 2019, approximately 1,004
asbestos-related personal injury lawsuits have been filed and we
vigorously defend against them. Of these, 962 have been dismissed
without any payment by us, 32 are pending and only 10 have been
settled, which settlements have not materially impacted our
financial condition or operating results."
A full-text copy of the Form 10-Q is available at
https://is.gd/TPc7Rv
ASBESTOS UPDATE: Hercules LLC Had $252MM Reserve at September 30
----------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended September 30, 2019, that wholly-owned subsidiary Hercules
LLC's total reserves for asbestos claims were US$252 million at
September 30, 2019 compared to $282 million at September 30, 2018.
The Company states, "Hercules has liabilities from claims alleging
personal injury caused by exposure to asbestos. Such claims
typically arise from alleged exposure to asbestos fibers from resin
encapsulated pipe and tank products which were sold by one of
Hercules' former subsidiaries to a limited industrial market. The
amount and timing of settlements and number of open claims can
fluctuate from period to period.
"From the range of estimates, Ashland records the amount it
believes to be the best estimate of future payments for litigation
defense and claim settlement costs, which generally approximates
the mid-point of the estimated range of exposure from model
results. Ashland reviews this estimate and related assumptions
quarterly and annually updates the results of a non-inflated,
non-discounted approximate 50-year model developed with the
assistance of Nathan. As a result of the most recent annual update
of this estimate, completed during 2019, it was determined that the
liability for Hercules asbestos-related claims should be decreased
by US$10 million. Total reserves for asbestos claims were US$252
million at September 30, 2019 compared to US$282 million at
September 30, 2018."
A full-text copy of the Form 10-K is available at
https://is.gd/0vnTu5
ASBESTOS UPDATE: Hercules LLC Had 13,000 Open Claims at Sept. 30
----------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended September 30, 2019, that wholly-owned subsidiary Hercules LLC
continues to face 13,000 open claims related to asbestos matters.
The Company states, "For the Hercules asbestos-related obligations,
certain reimbursement obligations pursuant to coverage-in-place
agreements with insurance carriers exist. As a result, any
increases in the asbestos reserve have been partially offset by
probable insurance recoveries. Ashland has estimated the value of
probable insurance recoveries associated with its asbestos reserve
based on management's interpretations and estimates surrounding the
available or applicable insurance coverage, including an assumption
that all solvent insurance carriers remain solvent. The estimated
receivable consists exclusively of solvent domestic insurers.
"As of September 30, 2019 and 2018, the receivables from insurers
amounted to US$49 million and US$54 million, respectively. During
2019, the annual update of the model used for purposes of valuing
the asbestos reserve and its impact on valuation of future
recoveries from insurers was completed. This model update resulted
in a US$5 million decrease in the receivable for probable insurance
recoveries."
A full-text copy of the Form 10-K is available at
https://is.gd/0vnTu5
ASBESTOS UPDATE: Meritor Inc. Had US$91MM Reserves at September 30
------------------------------------------------------------------
Meritor, Inc. had reserves of US$91 million for asbestos-related
liabilities as of September 30, 2019, according to the Company's
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended September 29, 2019.
The Company states, "We engaged a third-party advisor with
extensive experience in assessing asbestos-related liabilities to
conduct a study to estimate its potential undiscounted liability
for pending and future asbestos-related claims as of September 30,
2018. On a continual basis, management monitors the underlying
claims data and experience, for the purpose of assessing the
appropriateness of the assumptions used to estimate the liability.
The increase in the estimated liability from the prior year study
at both the low end and high end reflects a change in the forecast
horizon utilized to estimate future claims, excluding legal costs
and any potential recovery from insurance carriers. Previously,
our pending and future claims estimates were based on a ten-year
forecast period. In fiscal year 2018, we moved to a penultimate
horizon for estimating our pending and future claims estimates.
The penultimate horizon is defined as the second-to-last day of
claims estimated to occur. The longer horizon estimate is now
considered reasonable based on factors including our recent history
and experience, the disciplined management of asbestos related
litigation, an observance of trends indicating diminished
volatility and greater consistency in the company's observable
claims data, the maturity of the asbestos litigation overall and
experience in recent insurance negotiations.
"As of September 30, 2019, the estimated probable range of equally
likely possibilities of our obligation for asbestos-related claims
over the next 40 years is US$91 million to US$181 million. Based
on the information contained in the actuarial study, and all other
available information considered, management concluded that no
amount within the range of potential liability was more likely than
any other and, therefore, recorded the low end of the range. We
recognized a liability for pending and future claims of US$91
million as of September 30, 2019 compared to a liability of US$103
million as of September 30, 2018. The ultimate cost of resolving
pending and future claims is estimated based on the history of
claims and expenses for plaintiffs represented by law firms in
jurisdictions with an established history with Rockwell.
"Rockwell has insurance coverage that management believes covers
indemnity and defense costs, over and above self-insurance
retentions, for a significant portion of these claims. In 2004, we
initiated litigation against certain of these carriers to enforce
the insurance policies. During the fourth quarter of fiscal year
2016, we executed settlement agreements with two of these carriers,
thereby resolving the litigation against those particular carriers.
Pursuant to the terms of one of those settlement agreements, in
the fourth quarter of fiscal year 2016 we received US$32 million in
cash from an insurer, of which US$10 million was recognized as a
reduction in asbestos expense, and US$22 million was recorded as a
liability to the insurance carrier as it is required to be returned
to the carrier if additional asbestos liability is not ultimately
incurred. During fiscal years 2018 and 2017, Rockwell recognized
an additional US$12 million and US$10 million, respectively of the
cash settlement proceeds as a reduction in asbestos expense.
During the fourth quarter of fiscal year 2018, we entered into a
settlement agreement to resolve additional disputed coverage
resulting from asbestos claims.
"On September 15, 2018, we received US$3 million in cash and
recorded a US$28 million insurance receivable related to this
settlement. The insurance receivables for Rockwell's
asbestos-related liabilities totaled US$61 million and US$68
million as of September 30, 2019 and 2018, respectively. Included
in the September 30, 2018 amount is an increase to previous
settlement receivables resulting from the extended forecast horizon
which led to a balance of US$40 million for those previous
settlement receivables as of September 30, 2018
"The amounts recorded for the asbestos-related reserves and
recoveries from insurance companies are based upon assumptions and
estimates derived from currently known facts. All such estimates
of liabilities and recoveries for asbestos-related claims are
subject to considerable uncertainty because such liabilities and
recoveries are influenced by variables that are difficult to
predict. The future litigation environment for Rockwell could
change significantly from its past experience, due, for example, to
changes in the mix of claims filed against Rockwell in terms of
plaintiffs' law firm, jurisdiction and disease; legislative or
regulatory developments; our approach to defending claims; or
payments to plaintiffs from other defendants. Estimated recoveries
are influenced by coverage issues among insurers and the continuing
solvency of various insurance companies. If the assumptions with
respect to the estimation period, the nature of pending claims, the
cost to resolve claims and the amount of available insurance prove
to be incorrect, the actual amount of liability for Rockwell
asbestos-related claims, and the effect on us, could differ
materially from current estimates and, therefore, could have a
material impact on our financial condition and results of
operations."
A full-text copy of the Form 10-K is available at
https://is.gd/Z0UyNn
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S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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