/raid1/www/Hosts/bankrupt/CAR_Public/200228.mbx
C L A S S A C T I O N R E P O R T E R
Friday, February 28, 2020, Vol. 22, No. 43
Headlines
45 TUDOR RESTAURANT: Linares and Reyes Seek Accurate Overtime Pay
46 NEVINS STREET: Chavez Sues in E.D. New York Over ADA Violation
ACTIVATE FINANCIAL: Errors to be Fixed in Class Notice in Johnson
ACURIAN INC: Shears-Barnes Alleges Abusive Telemarketing Acts
ALDI INC: Mendoza FCRA Suit Remanded to L.A. County Superior Court
ALLIANCE SECURITY: Faces Saldana TCPA Suit Over Unsolicited Calls
ALOHA POOL: Dunsavage Seeks to Certify Class of Salaried Employees
AMAZING CARE: Badon Suit Seeks to Certify FLSA Collective
AMERICAN AIRLINES: 3rd Cir. Flips Class Order in Ferreras Action
APPLE INC: Dismissal Bid Denied, Discovery Ordered in Cohen Suit
ARIZONA BEVERAGES: Class Action Claims Gummies Are Not All Natural
ASPEN CONTRACTING: Hill Suit Removed to District of New Mexico
AUSTIN OASIS: Gresham Balks at Biometrics Data Collection
BED BATH & BEYOND: McBain Alleges Misleading Marketing Practices
BERRY'S RELIABLE: Badon Seeks to Certify FLSA Collective Class
BEYOND MEAT: Pomerantz Law Reminds Investors of Class Action
CALOP BUSINESS: Improperly Records Work Hours, Castenato Claims
CASTLE & COOKE: Ct Orders Payment Distribution to Cy Pres Recipient
CHAMPION PETFOODS: Weaver Suit Seeks to Certify Classes & Subclass
CHECKR INC: Faces Phillips Suit in California Superior Court
CLAYTON RESIDENTIAL: Gresham Balks at Biometrics Data Collection
CONAIR CORP: Hergert and McClanahan Sue Over Defective Hair Dryers
CONCORDIA UNIVERSITY: Student to File Class-Action Lawsuit
D & A SERVICES: Placeholder Class Cert. Bid Filed in Voeks Suit
DETROIT MEDICAL: Court Certifies FLSA Collective Class in Kim Suit
DRAKE ENTERPRISES: Website Inaccessible to Blind, Guglielmo Claims
EDDIE BAUER: Court Directs Filing of Supplemental Brief in Chu Suit
ENHANCED FIELD: Lupardus Seeks OT Pay for Pipeline Inspectors
EVENFLO CO: Faces Xavier et al. Suit Over Booster Seat Advertising
EVENFLO CO: Perry Says Booster Seats Fail Safety Standards
EVENFLO COMPANY: Father Files Car Seat Action for False Advertising
FACEBOOK INC: Cal. Northern Dist. Narrows Claims in Heeger Suit
FCA US: Court Awards $23K in Attorney’s Fees in Flores Suit
FLOWERS FOODS: Court Stays Class Cert. Proceedings in Ludlow Suit
FORD MOTOR: Bid for Judgment on Pleadings in Yetter Suit Granted
GERON CORP: Faruqi & Faruqi Reminds Investors of March 23 Deadline
GROVE SQUARE: Burke Harvey Reminds Consumers of Settlement
GULF STATES SERVICES: Nave Seeks OT Pay for Technicians
HEAVNER BEYERS: Lauderdale Balks at Debt Collection Practices
HERTZ CORP: Aiyekusibe Suit Wins Conditional Class Certification
HOME POINT: Class Settlement in Norona Gets Prelim. Court Approval
HOMEADVISOR: Contractors Join Class Action Lawsuit Accusing Fraud
HORNELL BREWING: Class Action Claims Gummies Are Not All Natural
HUDSON VALLEY: Zachman Sues Over Unlawful Collection of Fees
I.Q. DATA: Settlement in Zulku Case Wins Preliminary Approval
IC SYSTEM: 9th Cir. Upholds Final Approval of Reid Class Settlement
ILLINOIS: Court Grants Prelim. Injunction in Monroe Prisoners Suit
ILLINOIS: Court Narrows Claims in Wallace Prisoners Suit
INTELENET AMERICA: Conditional Cert. of Collective Class Granted
JACOBS ENGINEERING: Roane County Resident's Class Suit Ongoing
KEVIN ISON: Final Approval of Class Action Settlement Granted
LINCOLN TRANSPO: Delgado Remanded to L.A. County Superior Court
LOGMEIN INC: Faruqi & Faruqi Files Class Action Lawsuit
LOWE'S COMPANIES: Martin Seeks OT Pay for Customer Service Reps
LUCKIN COFFEE: Pomerantz Law Files Class Action Lawsuit
MDL 2804: Hestrup v. Mallinckrodt Over Opioid Drugs Consolidated
MINISTRY OF CHILDREN, BC: Talks in Proposed Class Action Underway
MOVING RIGHT: Court Certified Settlement Classes in "Angerosa"
MY HOME: Faces DeClements Suit Over Robocalls
NATIONAL CREDIT: Walls Sues Over Illegal Debt Collection Letters
NORTH EAST AUTO: Stay Denial in Dumas Upheld Pending Arbitration
PARTSBASE INC: Underpays Sales Representatives, Martin Claims
PASADENA TITLE: West Says Collection of Closing Fee Unlawful
PETIT POULET: Underpays Hotel Staff, Arcos Claims
PHILADELPHIA SCHOOL: Wins Summary Judgment in Parker Suit
PHILIPS BRYANT: Obtains Initial Approval of Chang Suit Settlement
PROFESSIONAL ACCOUNT: Archavage Suit Remanded to Luzerne County Ct.
PRUCO LIFE: Behfarin Seeks to Certify Settlement Class
RCSH OPERATIONS: Dix Seeks Proper Wages for Restaurant Servers
READING, PA: Ziegler Appeals Cmmw. Court Order to Pa. Sup. Ct.
REALTYSHARES INC: Church's Chicken Franchise Involved in Suit
RICHEMONT NORTH: Faces Fischler ADA Class Suit in E.D. New York
SAINT-SAUVEUR VALLEY: Court Narrows Claims in Goldberg VFTA Suit
SAKS INC: Giordano et al. Sue Luxury Brands Over No Poach Policy
SANCHEZ OIL: Hutchins Seeks OT Pay for Oilfield Personnel
SANOFI-AVENTIS US: Bond Suit Moved From D. Mass. to S.D. Florida
SASOL LTD: Pomerantz Law Firm Reminds Investors of April 6 Deadline
SCOTTS COMPANY: Hamsher Suit Settlement Gets Final Court Approval
SHARED IMAGING: Ranger Labor Suit Removed to E.D. California
SHAWCOR PIPELINE: Nugent-Gomez Suit Removed to C.D. California
SOUTH CAROLINA: Appeal in Hensley Suit Dismissed
SPIREON INC: Reyes et al. Seek Minimum Pay, Breaks for Staff
STATE FARM: Court Remands Davis' Motion to Certify Class
STATEWIDE TRANSPORT: Fails to Pay Overtime Wages, Baker et al Claim
SUBURBAN PROPANE: Continues to Defend NY & Pennsylvania Suits
TENNESSEE: Court Stays Proceedings in Suit v. Governor
TERMINAL OPERATIONS: Westfield Won't Cover BIPA Class Suit Costs
TERRACES AT PARK: Faces Hill Suit Over Improperly Paid Wages
TEXAS PRIDE: Revalee Sues over Unpaid Overtime Wages
TITAN STAIRS: Court Certifies Laborers Class in Paul Suit
TONOGA INC: N.Y. App. Div. Upholds Class Certification in Burdick
TOYOTA MOTOR: Boulom Sues Over RAV4 Vehicles' Fuel Tank Defect
TOYOTA MOTOR: Emerson Firm Probing Claims Over Brake Assembly
TOYOTA MOTOR: Ly Sues Over RAV4 Hybrid Vehicles' Fuel Tank Defect
TRAVELERS HOME: Court Tosses Barnhart Insurance Coverage Suit
TROPHY NUT: Coleman Asks Court to Conditionally Certify FLSA Class
TUPPERWARE U.S.: Website Inaccessible to Blind, Guglielmo Claims
ULTA SALON: Medeiros Suit Stayed Pending Approval of Tellez Deal
ULTIMATE FRANCHISES: Janke et al. Seek OT Pay, Breaks for Staff
UNITED NATURAL: North Country Seeks to Certify Settlement Class
UNITED STATES: Settles Phillips Railroad Easement Suit for $514K
UNIVERSAL CABLE: Fails to Pay Proper Wages, Bailey Claims
USAA FEDERAL: Court Requires Info in Eiess Suit Pending Dismissal
VERDE ENERGY: Ct Allows Discovery in Panzer Pending Arbitration Bid
VILLAGE FORD: Initial Approval of Flores Settlement Sought
WABASH COUNTY, IN: Copeland Suit Seeks to Certify Inmates Class
WASHINGTON: Court Denies Detainees Class Certification Bid
WELLS FARGO: Court Narrows Claims in Hernandez Suit
WPX ENERGY: Merger Docs Lack Financial Advisors' Info, Hudson Says
YUASA BATTERY: Rodriguez Seeks OT Pay for Distribution Staff
[^] CLASS ACTION Money & Ethics Conference on May 4
Asbestos Litigation
ASBESTOS UPDATE: Meritor Inc. Had $90-Mil. Reserves at Dec. 31
ASBESTOS UPDATE: Paddock in Chapter 11 for Resolution of Claims
*********
45 TUDOR RESTAURANT: Linares and Reyes Seek Accurate Overtime Pay
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JOAQUIN LINARES and JOSE REYES, on behalf of themselves,
individually, and on behalf of all others similarly-situated,
Plaintiffs, v. MIRSO LEKIC, individually, and 45 TUDOR RESTAURANT
LLC d/b/a TUDOR CITY STEAKHOUSE, Defendants, Case No. 1:20-cv-01408
(S.D.N.Y., February 18, 2020) contends that the Defendants fail to
compensate Plaintiffs at the rate of one and one-half times their
respective regular rates of pay for all hours that they worked in
excess of 40 in a week.
The Plaintiffs, who both worked for Defendants as cooks, also claim
that they did not receive all of their earned wages in a timely
manner, in violation of the provisions of the New York Labor Law.
45 Tudor Restaurant LLC is a steakhouse located in Manhattan that
does business under the name Tudor City Steakhouse. The company
has its principal place of business located at 45 Tudor Place, New
York, New York 10017. [BN]
The Plaintiffs are represented by:
Caitlin Duffy, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORRELLI & ASSOCIATES, P.L.L.C.
655 Third Avenue, Suite 1821
New York, NY 10017
Telephone: (212)679-5000
Facsimile: (212)679-5005
46 NEVINS STREET: Chavez Sues in E.D. New York Over ADA Violation
-----------------------------------------------------------------
A class action lawsuit has been filed against 46 Nevins Street
Associates LLC, et al. The case is styled as Kenneth T. Chavez, on
behalf of himself and all others similarly situated v. 46 Nevins
Street Associates LLC, doing business as: Even Hotels Brooklyn,
Cbcs Brooklyn LLC, Case No. 1:20-cv-00977 (E.D.N.Y., Feb. 21,
2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Even Hotels Brooklyn is a contemporary, wellness-oriented hotel
with a living green wall. The hotel is two blocks from the nearest
subway, a 9-minute walk from sports and concerts at the Barclays
Center, and a 25-minute subway ride from Manhattan.[BN]
The Plaintiff is represented by:
Mitchell Segal, Esq.
LAW OFFICES OF MITCHELL SEGAL P.C.
1010 Northern Boulevard, Suite 208
Great Neck, NY 11021
Phone: (516) 415-0100
Fax: (516) 706-6631
Email: msegal@segallegal.com
ACTIVATE FINANCIAL: Errors to be Fixed in Class Notice in Johnson
-----------------------------------------------------------------
The U.S. District Court for the Southern District of New York
issued an Order to fix Errors in Class Notice in the consumer
lawsuit captioned ARTHUR JOHNSON, on behalf of himself and all
others similarly situated, Plaintiff, v. ACTIVATE FINANCIAL, LLC,
and JOHN DOES 1-25, Defendants, Case No. 1:19-cv-3359-GHW.
(S.D.N.Y.).
The Court advises Plaintiff's counsel that there is an extra period
in Plaintiff's counsel's address on page 7 of the proposed notice,
and the same error appears on page 3 of the Class Action Settlement
Agreement. In addition, the period at the end of et seq. on page 9
of the Class Action Settlement Agreement should not be underlined.
The Court advises Plaintiff's counsel to fix these errors before
mailing the notice.
A full-text copy of the District Court's November 21, 2019 Order
available at https://tinyurl.com/yx7zrevk from Leagle.com
Arthur Johnson, on behalf of himself and all others similarly
situated, Plaintiff, represented by Benjamin Jarret Wolf , Jones,
Wolf & Kapasi, LLC & Joseph Karl Jones , Jones, Wolf & Kapasi, LLC,
75 Passaic Avenue, Suite 100 Fairfield, New Jersey 07004
Activate Financial, LLC, Defendant, represented by Patrick Jacob
Bernal , Witten, Woolington & Campbell P.C., 4900 Main St,
Manchester Center, VT 05255 & Michael C. Barnhill -
mcbarnhill@michaelbest.com - Michael Best & Friedrich LLP.
ACURIAN INC: Shears-Barnes Alleges Abusive Telemarketing Acts
-------------------------------------------------------------
KIMBERLY SHEARS-BARNES, on behalf of herself, and all others
similarly situated, Plaintiff, v. ACURIAN, INC., Defendant, Case
No. 4:20-cv-00161-LPR (E.D. Ark., February 19, 2020) contends that
the Defendant routinely contacts individuals including the
Plaintiff through mass text messaging with automatic telephone
dialing equipment in a misguided effort to solicit business in
violation of the Telephone Consumer Protection Act.
The Defendant's acts cause Plaintiff and members of the Class to
experience actual harm including aggravation, nuisance, and
invasion of privacy that necessarily accompanies the receipt of
unsolicited and harassing text message calls.
Acurian, Inc. serves as a full-service provider of clinical trial
patient enrolment and retention solutions for the life sciences
industry headquartered in Wilmington, North Carolina. [BN]
The Plaintiff is represented by:
Ronald A. Marron, Esq.
Alexis M. Wood, Esq.
Kas L. Gallucci, Esq.
LAW OFFICES OF RONALD A. MARRON
651 Arroyo Drive
San Diego, CA 92103
Telephone: (619) 696-9006
Facsimile: (619) 564-6665
ALDI INC: Mendoza FCRA Suit Remanded to L.A. County Superior Court
------------------------------------------------------------------
Judge Otis D. Wright, II of the U.S. District Court for the Central
District of California granted Mendoza's motion to remand for lack
of subject matter jurisdiction the case, GLORIANNE MENDOZA, et al.,
Plaintiff, v. ALDI INC., et al., Defendants, Case No.
2:19-cv-06870-ODW (JEMx) (C.D. Cal.).
Glorianne Mendoza was employed with Defendants Aldi and AI
California, LLC from approximately February 2016 to March 2019.
When Mendoza applied for employment, the Defendants performed a
background investigation on her using legally non-compliant
disclosure and authorization.
Mendoza initiated the putative class action against the Defendants
in the Superior Court of California, County of Los Angeles. She
asserts a single cause of action for violation of the Fair Credit
Reporting Act ("FCRA"). She alleges that the Defendants violated
the FCRA by using legally non-compliant disclosure and
authorization forms.
The Defendants removed the action to the California District Court
on the basis of federal question jurisdiction over Mendoza's FCRA
claim. Mendoza now moves to remand for lack of Article III
standing and subject matter jurisdiction.
Judge Wright finds that Mendoza's allegations constitute a bare
procedural violation of the FCRA and do not amount to concrete harm
sufficient for Article III standing. In the absence of a concrete
injury, Defendants have not met their heavy burden on removal to
show that Mendoza has Article III standing.
Accordingly, Judge Wright granted Mendoza's request and remanded
the action to the Superior Court, County of Los Angeles, Case No.
19STCV21190, 111 North Hill Street. Los Angeles, California 90012.
The Defendants' Motion to Dismiss is denied as moot.
A full-text copy of the District Court's Dec. 27, 2019 Order is
available at https://is.gd/8P3X2m from Leagle.com.
Glorianne Mendoza, on behalf of herself, all others similarly
situated, and the general public, Plaintiff, represented by Bruce
Zareh Kokozian, Kokozian Law Firm APC, Brian Keith Andrews,
Kokozian Law Firm APC, Chaim Shaun Setareh -- info@setarehlaw.com
-- Setareh Law Group & Thomas Alistair Segal --
thomas@setarehlaw.com -- Setareh Law Group.
ALDI Inc., an Illinois corporation & AI California LLC, Defendants,
represented by Kimberly Arouh -- kimberly.arouh@bipc.com --
Buchanan Ingersoll and Rooney LLP, Christian Antkowiak, Buchanan
Ingersoll and Rooney PC, pro hac vice & Frederick Cyrus Bingham --
frederick.bingham@bipc.com -- Buchanan Ingersoll and Rooney LLP.
ALLIANCE SECURITY: Faces Saldana TCPA Suit Over Unsolicited Calls
-----------------------------------------------------------------
MOSIES ABBEL SALDANA, ABANTE ROOTER AND PLUMBING, MONICA ABBOUD,
ANTHONY FRY, and SID NAIMAN, individually and on behalf of all
others similarly situated v. ALLIANCE SECURITY, INC. and DOES 1
through 10, inclusive, and each of them, Case No. 2:20-cv-00978
(C.D. Cal., Jan. 30, 2020), alleges that the Defendants promote and
market their merchandise, in part, by placing unsolicited phone
calls to wireless phone users, in violation of the Telephone
Consumer Protection Act.
The Defendants used an "automatic telephone dialing system" to
place their calls to the Plaintiffs seeking to solicit their
services. The Defendants' calls constituted calls that were not for
emergency purposes. The Defendants did also not possess the
Plaintiffs' "prior express consent" to receive calls using an ATDS,
says the complaint.
Alliance Security provides security services. The Company provides
burglar, fire, and medical protection, as well as provides home
automation services.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Telephone: 323-306-4234
Facsimile: 866-633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
ALOHA POOL: Dunsavage Seeks to Certify Class of Salaried Employees
------------------------------------------------------------------
In the class action lawsuit styled as MICHAEL DUNSAVAGE, on behalf
of himself and all other similarly situated v. ALOHA POOL SERVICES,
INC., a Florida Profit Corporation, MICHAEL A. FOLZ, individually,
and PAMELA M. FOLZ, individually, jointly, and severally, Case No.
0:19-cv-62509-RS (S.D. Fla.), the Plaintiff asks the Court to enter
an order conditionally certifying this case as a collective action,
and permit and supervise notice to:
"any and all non-exempt salaried employees who worked for
Defendants, anywhere in Florida, from October 8, 2016, through the
present and who worked 40 or more hours in one or more workweeks,
and were not paid time and one-half overtime compensation for their
overtime hours worked."
Based in Fort Lauderdale, Florida, Defendants own and operate a
Swimming Pool and Hot Tub service company. To provide these
services, Defendants employed Plaintiff, Opt-In Plaintiffs and the
putative class to conduct and perform physical labor including
cleaning, maintaining, and servicing pools.
The Plaintiffs performed the same or identical job duties; were
paid in the exact same manner; and were not paid overtime
compensation for hours worked over 40 per workweek, says the
complaint.[CC]
The Plaintiff is represented by:
Noah E. Storch, Esq.
RICHARD CELLER LEGAL, P.A.
10368 W. State Road 84, Suite 103
Davie, FL 33324
Telephone: (866) 344-9243
Facsimile: (954) 337-2771
E-mail: noah@floridaovertimelawyer.com
AMAZING CARE: Badon Suit Seeks to Certify FLSA Collective
---------------------------------------------------------
In the class action lawsuit styled as ANTHONY BADON, on behalf of
himself and all others similarly situated v. AMAZING CARE SERVICES,
LLC; NOELL BERRY AND JOLANDA BERRY, Case No..2:19-cv-11279-GGG-KWR
(E.D. La.), the Plaintiff asks the Court for an order:
1. conditionally certifying class pursuant to the Fair Labor
Standards Act:
"all persons employed by Defendants since January 2017 as
Direct Service Workers or "DSWs" and who were paid on an
hourly basis but were not paid at an overtime rate of one
and one-half times their hourly rate of pay for each hour
worked in excess of 40 per week in violation of the FLSA,
due to Defendants' deliberate and willful misclassification
of them as "1099 Misc" workers and/or independent
contractors"; and
2. authorizing notice to allow potential members of the FLSA
Collective Class to opt in to preserve their rights.
The Plaintiff asserted claims on behalf of a collective class for
overtime wages wrongfully not paid to them by Defendants.
Amazing Care offers patient care and nursing services.[CC]
The Plaintiff is represented by:
Mary Bubbett Jackson, Esq.
Jody Forester Jackson, Esq.
JACKSON+JACKSON
201 St. Charles Avenue, Suite 2500
New Orleans, LA 70170
Telephone: (504) 599-5953
Facsimile: (888) 988-6499
E-mail:: jjackson@jackson-law.net
mjackson@jackson-law.net
AMERICAN AIRLINES: 3rd Cir. Flips Class Order in Ferreras Action
----------------------------------------------------------------
The U.S. Court of Appeals for the Third Circuit reversed the order
of the District Court certifying the class in the case, DANIEL
FERRERAS; EDWIN GONZALEZ; DOUG BILLITZ; RUEBEN RAMIREZ; RAMON COCA;
CHRISTOPHER FAUST; MASOUD ZABIHIALAM; SCOTT ELLENTUCK; DENIS
LIPPENS, On Behalf of themselves and all others similarly situated,
v. AMERICAN AIRLINES, INC., Appellant, Case No. 18-3143 (3d Cir.).
The case involves claims for overtime wages brought by employees of
American airlines. The employees allege that American violated the
New Jersey Wage and Hour Law ("NJWHL") because the airline's
timekeeping system defaults to paying employees based on their work
schedules, even if they work additional hours outside of their
shifts and in excess of 40 hours per week.
The employees brought their claims as a putative class action and
moved for class certification. The District Court decided that all
of the requirements for class certification, as set forth in
Federal Rule of Civil Procedure 23, were met, and it thus certified
the class.
Three subclasses were created. The first subclass was defined as
employees who have been denied compensation for work performed
before and after their shifts while on the clock ("Grace Period
Subclass"). The second subclass was defined as employees who have
been denied compensation for work performed during meal periods
("Meal Break Subclass"). The third subclass was defined as
employees who have been denied compensation for work performed
before their shifts before clocking in, and for work performed
after their shifts after clocking out ("Off-the-Clock Subclass").
American Airlines appeals that order, arguing that the District
Court did not conduct a rigorous analysis and that several of the
requirements of Rule 23, including commonality and predominance,
were not met. American argues that the case cannot proceed as a
class action because determining when each employee was actually
working will necessarily require individualized inquiries.
The Third Circuit agrees. The Appellate Court finds that the
District Court did not perform a rigorous analysis, and commonality
and predominance cannot be met under a rigorous analysis.
Because the District Court did not engage in that type of analysis,
the Appellate Court will vacate and remand for further application
of the Rule 23 standards. But because discovery was essentially
complete when the District Court ruled on the motion for class
certification, and the Plaintiffs have stated that no additional
discovery is needed to decide the certification issue, the Third
Circuit reverse rather than remand, as, based on his review of the
record, it is clear that commonality and predominance cannot be
met.
Moreover, the record evidence only demonstrated that a policy of
not paying employees who submitted requests for overtime may have
existed for one group of employees -- the mechanics. But the
District Court certified subclasses consisting of all non-exempt,
hourly employees at American Airlines' Newark airport station, not
just mechanics. The passenger service agents and fleet service
employees have different responsibilities and supervisors than the
mechanics. Even if one of the groups was affected by such a
policy, that would not drive the resolution of the litigation on a
classwide basis, and thus the second common question the District
Court identified did not establish commonality.
Finally, the record evidence demonstrates that employees were not
always working while clocked in and there was substantial
variability in what they were doing, even if some of it could be
called work. Accordingly, the employees would need individualized,
not representative, evidence to prove their case. Thus,
predominance cannot be established, the Appellate Court opines.
For these reasons, the Third Circuit reversed the class
certification order.
A full-text copy of the Third Circuit's Dec. 24, 2019 Opinion is
available at https://is.gd/JoV5aF from Leagle.com.
DANIEL FERRERAS, EDWIN GONZALEZ, On behald of themselves and all
others similarly situated, DOUG BILLITZ, RUEBEN RAMIREZ, RAMON
COCA, CHRISTOPHER FAUST, MASOUD ZABIHIALAM, SCOTT ELLENTUCK &
DENIS LIPPENS, Plaintiffs, represented by CHESTER R. OSTROWSKI --
costrowski@mclaughlinstern.com -- McLAUGHLIN & STERN LLP & BRADLEY
JASON BARTOLOMEO -- bbartolomeo@mclaughlinstern.com -- McLAUGHLIN
& STERN, LLP.
AMERICAN AIRLINES, INC., Defendant, represented by JEFFREY IRA
KOHN -- jkohn@omm.com -- O'MELVENY & MEYERS, LLP.
COMMUNICATIONS WORKERS OF AMERICA,AFL-CIO, Amicus, represented by
JUDIANN CHARTIER, COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO.
Airline Fleet Service Employee Association TWU/IAM, Airline
Mechanic and Related Employee Association TWU/IAM & Airline Stores
Employee Association TWU/IAM, Amicuss, represented by BENNET DANN
ZUROFSKY -- bzurofsky@zurofskylaw.com.
APPLE INC: Dismissal Bid Denied, Discovery Ordered in Cohen Suit
----------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order denying Defendant's Motion to Dismiss in
the case captioned ANDREW COHEN, TIMOTHY HORNICK, KALEAH C. ALLEN,
NICHOLAS CARLSON, GLENN E. JACOBS, MARK WEILER, CHAD SMITH, SARAH
D. SMITH, MATT KOPPIN, SCOTT CISCHKE, KRYSTLE FAERN, RODOLFO
CABRERA, BRANDY DAVIS, WILLIAM ZIDE, ZACHARY GOMOLEKOFF, DAVID
HEDICKER, NANCY MAEKAWA, CATHERINE GOODWIN, PAUL COLETTI, KATHLEEN
BOGGS, KIMBERLY MODESITT, KIMBERLY BENJAMIN, MARK KUNZE, ARIANA
RYAN, NATHAN COOPER, BECKY WELLINGTON, M. GAIL SUNDELL, VICTOR
PERLMAN, and JUNE A. HALL, individually and on behalf of all other
similarly situated, Plaintiffs, v. APPLE INC., Defendant, Case No.
C 19-05322 WHA (N.D. Cal.).
In this putative class action for negligence, breach of warranty,
consumer fraud, and unjust enrichment, defendant moves to dismiss
the complaint. The Court, however, converts the motion to dismiss
into a motion for summary judgment and allows immediate discovery.
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim for relief that
is plausible on its face.
A court may judicially notice a fact that is not subject to
reasonable dispute because it can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned. Just because the document itself is susceptible to
judicial notice, however, does not mean that every assertion of
fact within that document is judicially noticeable for its truth.
Incorporation-by-reference, in contrast, is a judicially created
doctrine that treats certain documents as though they are part of
the complaint itself. The doctrine prevents plaintiffs from
cherry-picking portions of documents that support their claims,
while omitting portions of the same documents that weaken their
claims. A defendant may seek to incorporate a document by reference
if the plaintiff refers extensively to the document or the document
forms the basis of the plaintiff's claim, but the mere mention of
the existence of a document is insufficient to incorporate the
contents of a document by reference.
Apple's motion to dismiss is an excellent example calling for
application of the foregoing principles, rules the Court. The vast
array of material presented outside of the pleadings, including
supposed factual statements and findings of the Commission,
triggers treatment of this motion as one for summary judgment. This
motion cannot and should not be decided on this record. Further
discovery into the issues presented is necessary.
The Court is inclined to hold that if the Apple products ultimately
satisfy the Commission's standard, then all claims must be
dismissed on preemption grounds. On the other hand, if the products
in question do not meet the Commission standards, then the Court is
inclined to let all of the claims go forward. This is not a final
determination and discovery is needed, even into what and how the
Commission's guidance should be implemented.
The Rule 23 issues discussed during the hearing are not yet ready
for decision.
As soon as adequate discovery to address issues raised by Apple's
motion, then Apple may renew its motion and plaintiffs may
cross-move if they feel the record warrants a decision in their
favor.
Therefore, the motion to dismiss is DENIED without prejudice as to
renewal under Rule 56, the Court rules.
A full-text copy of the District Court's February 10, 2020 Order is
available at https://tinyurl.com/vjk5h6c from Leagle.com.
Andrew Cohen, Kaleah C Allen, Kimberly Benjamin, Timothy Hornick,
Nicholas Carlson, Mark Weiler, Chad Smith, Sarah D Smith, Scott
Cischke, Matt Koppin & Albert Collins, Plaintiffs, represented by
Elizabeth A. Fegan , Fegan Scott LLC, 150 S. Wacker Dr., 24th Fl.,
Chicago, IL 60606, pro hac vice, Jennie Lee Anderson -
jennie@andrusanderson.com - Andrus Anderson LLP, Audrey Claire
Siegel , Andrus Anderson LLP, 155 Montgomery Street, Suite 900, San
Francisco, CA 94104, Jessica H. Meeder , Fegan Scott LLC & Lynn
Ellenberger , Fegan Scott LLC, 150 S. Wacker Dr., 24th Fl.,
Chicago, IL 60606, pro hac vice.
Rodolfo Cabrera, Zachary Gomolekoff, Becky Wellington, William
Zide, Kathleen Boggs, Glenn Jacobs, Krystle Faeryn, Nathan Cooper,
Nancy Maekawa, Ariana Ryan, M. Gail Sundell, Catherine Goodwin,
Paul Coletti, June A Hall, David Hedicker, Kimberly Modesitt,
Victor Perlman, Mark Kunze & Brandy Davis, Plaintiffs, represented
by Audrey Claire Siegel , Andrus Anderson LLP, Lynn Ellenberger ,
Fegan Scott LLC, pro hac vice & Elizabeth A. Fegan , Fegan Scott
LLC.
Apple Inc., Defendant, represented by Jonathan S. Tam -
jonathan.tam@dechert.com - Dechert, LLP, Amisha Rajni Patel -
amisha.patel@dechert.com - Dechert LLP, pro hac vice, Christina
Guerola Sarchio - christina.sarchio@dechert.com - Dechert LLP, pro
hac vice & Mark S. Cheffo , Dechert LLP, pro hac vice.
ARIZONA BEVERAGES: Class Action Claims Gummies Are Not All Natural
------------------------------------------------------------------
National Law Review reports that on February 11, 2020, Christopher
Silva, a New York resident, filed a proposed class action lawsuit
against Hornell Brewing Co. Inc., Arizona Beverages USA LLC,
Beverage Marketing USA, Inc., and Arizona Beverage Co.
("Defendants") over defendants' "all natural" gummy snacks.
The plaintiff claims that defendants' advertising and marketing
campaign is false, deceptive, and misleading because the gummies
contain several synthetic ingredients, such as ascorbic acid,
citric acid, gelatin, dextrose, glucose syrup, and modified food
starch. Silva seeks to represent a New York class and individual
classes for all 49 other states.
In the complaint, Silva cited to the United States Department of
Agriculture's Draft Guidance Decision Tree for Classification of
Materials as Synthetic or Nonsynthetic (natural). Per that
guidance, a substance is natural – as opposed to synthetic – if
(a) it is manufactured, produced, or extracted from a natural
source (i.e. naturally occurring mineral or biological matter); (b)
it has not undergone a chemical change (i.e. a process whereby a
substance is transformed into one or more other distinct
substances) so that it is chemically or structurally different than
how it naturally occurs in the source material; or (c) the chemical
change was created by a naturally occurring biological process such
as composting, fermentation, or enzymatic digestion or by heating
or burning biological matter.
Silva noted that while the synthetic ingredients are all listed on
the back of the package, reasonable consumers are not expected or
required to review the ingredients list on the back in order to
confirm or debunk defendants' prominent front-of-the-product
claims. The package in question includes the phrase "All Natural"
on the packaging behind the words, "Arizona" and "fruit snacks." We
will continue to monitor any developments. [GN]
ASPEN CONTRACTING: Hill Suit Removed to District of New Mexico
--------------------------------------------------------------
The case captioned Jean Hill, Individually and on Behalf of a Class
of Similarly Situated Persons v. Aspen Contracting, Inc., Case No.
D-101-CV-19-03301, was removed from the New Mexico First Judicial
District Court to the U.S. District Court for the District of New
Mexico on Feb. 21, 2020.
The District Court Clerk assigned Case No. 1:20-cv-00149 to the
proceeding.
Aspen Contracting Inc. specializes in new construction,
replacements and storm restoration of residential and commercial
roofing, siding and gutters.[BN]
The Plaintiff is represented by:
Christopher P. Bauman, Esq.
Cynthia L. Weisman, Esq.
Melanie L. Ben, Esq.
BAUMAN & DOW PC
PO Box 30684
Albuquerque, NM 87190-0684
Phone: (505) 883-3191
Fax: (505) 883-3194
Email: cpb@bdsfirm.com
cw@bdsfirm.com
mb@bdsfirm.com
The Defendant is represented by:
Timothy C. Holm, Esq.
Alex Cameron Walker, Esq.
MODRALL, SPERLING, ROEHL, HARRIS & SISK, P.A.
500 Fourth St NW, Suite 1000
PO Box 2168
Albuquerque, NM 87103-2168
Phone: (505) 848-1800
Fax: (505) 848-9710
Email: tch@modrall.com
awalker@modrall.com
AUSTIN OASIS: Gresham Balks at Biometrics Data Collection
----------------------------------------------------------
CRYSTAL GRESHAM, individually and on behalf of all others similarly
situated, Plaintiff v. THE AUSTIN OASIS, LLC and ICARE CONSULTING
SERVICES, LLC, Defendants, Case No. 2020CH01910 (Ill. Cir., Cook
Cty., February 18, 2020) is a class action against the Defendants
over Biometric Information Privacy Act violations.
The Plaintiff and other similarly-situated employees were required
by the Defendants, as a condition of employment, to have their hand
geometry scanned by a biometric timekeeping device without
informing them in writing of the specific purpose and length of
time for which their hand geometry was being collected, stored, and
used, as required by BIPA, thereby exposing them to privacy risks
such identity theft.
The Austin Oasis, LLC is a skilled nursing facility that provides
rehabilitation, hospice, psychiatric and nursing services. It is
located at 901 S. Austin Blvd., Chicago, Illinois.
iCare Consulting Services, LLC is an owner and operator of several
healthcare facilities, including the Austin Oasis. [BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Megan E. Shannon, 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
mshannon@stephanzouras.com
BED BATH & BEYOND: McBain Alleges Misleading Marketing Practices
----------------------------------------------------------------
MARIA MCBAIN, Plaintiff, vs. BED BATH & BEYOND, INC., Defendant,
Case No. CACE-20-002442 (Fla. Cir. 17th Judicial, Broward City Feb.
11, 2020) alleges that the Defendant's labeling, marketing, and
advertising of its Sky Organics Lavender Serenity CBD Essential Oil
Set in a roll-on bottle contains representations which are
misleading and deceptive to reasonable consumers, such as the
Plaintiff.
According to the complaint, the Product, which is intended to be
applied topically for use in the cure, mitigation, treatment,
and/or intended to affect the structure or any function of the
body, cannot lawfully be sold because it is an unapproved new drug.
The consumers including the Plaintiff were misled into believing
Defendant had complied with applicable federal laws and regulations
and that Defendant could lawfully sell the Product.
Thus, the Plaintiff and Class Members have been aggrieved by
Defendant's unfair and deceptive practices in violation of the
Florida Deceptive and Unfair Trade Practices Act.
Bed Bath & Beyond is a foreign for profit corporation with its
principal place of business in Union, New Jersey. The Company sells
a wide assortment of merchandise principally including domestic
merchandise and home furnishings, as well as food, giftware, health
and beauty care items, and infant and toddler merchandise. [BN]
The Plaintiff is represented by:
Howard W. Rubinstein, Esq.
The Law Office of Howard W. Rubinstein
1281 N. Ocean Dr. Apt 198
Singer Island, FL 33404
Telephone: 832-715-2788
Facsimile: 561-688-0630
BERRY'S RELIABLE: Badon Seeks to Certify FLSA Collective Class
--------------------------------------------------------------
In the class action lawsuit styled as STACEY BADON on behalf of
herself and all those similarly situated v. BERRY'S RELIABLE
RESOURCES, LLC AND RHONDA WILLIAMS, Case No. 2:19-cv-12317-WBV-DMD
(E.D. La.), the Plaintiff asks the Court to enter an order:
1. conditionally certifying a class pursuant to the Fair Labor
Standards Act:
"all persons employed by Defendants as home health care
workers since February 2017 who were paid on an hourly basis
but were not paid at an overtime rate of one and one-half
times their hourly rate of pay for each hour worked in
excess of 40 per week in violation of the FLSA"; and
2. authorizing notice of this collective action to potential
members of the FLSA Collective Class and approving proposed
notice and consent form.
The Plaintiff asserted claims on behalf of a collective class for
overtime wages wrongfully not paid to them by Defendants, says the
complaint.[CC]
The Plaintiff is represented by:
Mary Bubbett Jackson, Esq.
Jody Forester Jackson, Esq.
JACKSON+JACKSON
201 St. Charles Avenue, Suite 2500
New Orleans, LA 70170
Telephone: (504) 599-5953
Facsimile: (888) 988-6499
E-mail:: jjackson@jackson-law.net
mjackson@jackson-law.net
BEYOND MEAT: Pomerantz Law Reminds Investors of Class Action
------------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against Beyond Meat, Inc. (BYND) and certain of its officers. The
class action, filed in United States District Court for the Central
District of California, and indexed under 20-cv-00963, is on behalf
of a class consisting of all persons and entities other than
Defendants who purchased or otherwise acquired Beyond Meat
securities between May 2, 2019 and January 27, 2020, both dates
inclusive (the "Class Period"), seeking to recover damages caused
by Defendants' violations of the federal securities laws and to
pursue remedies under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5
promulgated thereunder, against the Company and certain of its top
officials.
If you are a shareholder who purchased Beyond Meat securities
during the class period, you have until March 30, 2020, to ask the
Court to appoint you as Lead Plaintiff for the class. A copy of
the Complaint can be obtained at www.pomerantzlaw.com. To discuss
this action, contact:
Robert S. Willoughby
POMERANTZ LLP
E-mail: rswilloughby@pomlaw.com
Tel: 888.476.6529
Toll-Free: 888.4-POMLAW, Ext. 9980.
Those who inquire by e-mail are encouraged to include their mailing
address, telephone number, and the number of shares purchased.
Beyond Meat is a food company that provides plant-based meats. It
offers its products in the meat platforms of beef, pork, and
poultry. The Company sells its products to various customers in the
retail and foodservice channels through brokers and distributors in
the U.S. and internationally.
Don Lee Farms is a maker of plant-based and meat proteins. In
2014, Beyond Meat entered into an exclusive supply agreement with
Don Lee to produce all of Beyond Meat's products, including the
development and launch of the Company's popular Beyond Burger.
In early 2017, following the launch of the Beyond Burger, Beyond
Meat terminated the Supply Agreement and transferred its production
from Don Lee to other food manufacturers.
On May 25, 2017, Don Lee filed a complaint against Beyond Meat in
the Superior Court of the State of California for the County of Los
Angeles asserting claims for, inter alia, breach of contract,
misappropriation of trade secrets, and unfair competition, seeking
monetary damages and declaratory and injunctive relief.
Don Lee's initial lawsuit spawned other related legal proceedings,
including related claims by Don Lee against one of Beyond Meat's
new manufacturing partners, ProPortion Foods, LLC ("Proportion"),
and cross-complaints by both Beyond Meat and ProPortion against Don
Lee (collectively with Don Lee's initial lawsuit, the "Don Lee
Litigation").
As the litigation progressed, Don Lee further alleged that Beyond
Meat had employed lax food safety practices during the two
companies' partnership, specifically alleging, inter alia, that Don
Lee found plastics, cardboard and a metal nozzle in ingredients
that Beyond Meat supplied and that a Beyond Meat truck had arrived
at a Don Lee processing facility with a load contaminated with an
unidentified white powder. Don Lee alleged that Beyond Meat had
provided an altered copy of a food-safety audit of its
manufacturing facilities, and on that basis added fraud claims to
its suit against Beyond Meat in March 2019.
Beyond Meat has consistently denied the merits of Don Lee's
claims.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) Beyond Meat's termination of
its supply agreement with Don Lee constituted a breach of that
agreement, thus exposing the Company to foreseeable legal liability
and reputational harm; (ii) Beyond Meat and certain of its
employees had doctored and omitted material information from a food
safety consultant's report, which the Company represented as
accurate to Don Lee; and (iii) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
On January 27, 2020, post-market, Don Lee issued a press release
entitled "Judge Rules Don Lee Farms Likely to Obtain a Judgment.
Beyond Meat's CFO and Others Named Individually for Fraud." The
press release stated, in part, that "[a] judge has ruled Don Lee
Farms proved the probable validity of its claim that Beyond Meat
breached its manufacturing agreement with Don Lee Farms" and that
"[i]n a separate motion before a different Judge, the Court granted
Don Lee Farms' request to name Beyond Meat Chief Financial Officer
Mark Nelson, Senior Quality Assurance Manager Jessica Quetsch and
Director of Operations Anthony Miller in its fraud claims which
allege they intentionally doctored and omitted material information
from a food safety consultant's report, and then delivered that
doctored report to Don Lee Farms and affirmatively represented that
it was the complete opinion of the consultant."
On this news, Beyond Meat's stock price fell $4.63 per share, or
3.71%, to close at $120.12 per share on January 28, 2020.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris, is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com. [GN]
CALOP BUSINESS: Improperly Records Work Hours, Castenato Claims
---------------------------------------------------------------
ALLAN CASTENATO, an individual, and on behalf of all aggrieved
employees v. CALOP BUSINESS SYSTEMS, INC., and DOES 1 through 50,
inclusive, Case No. 20STCV03772 (Cal. Super., Los Angeles Cty.,
Jan. 30, 2020), alleges that the Defendants violated the California
Labor Code by failing to correctly calculate, or record at all, the
total number of hours worked by the Plaintiff and other employees
when they worked multiple shifts in one day.
The Plaintiff and other aggrieved employees regularly worked more
than 12 and even 14 hours in a day but were not paid overtime
and/or overtime at the correct hourly rate, says the complaint.
The Defendants have employed the Plaintiff as a warehouse screener
since December 2018.
Calop is doing business in the office equipment industry.[BN]
The Plaintiff is represented by:
Marshall R. Lurtz, Esq.
LURTZ LEGAL
3511 Camino Del Rio South, Ste. 101
San Diego, CA 92108
Telephone: (858) 260-5241
E-mail: mlurtz@lurtzlegal.com
- and -
Justin Lo, Esq.
WORK LAWYERS PC
22939 Hawthorne Blvd., No. 202
Torrance, CA 90505
Telephone: (866) 496-7552
Facsimile: (424) 388-8535
E-mail: justin@WorkLawyers.com
CASTLE & COOKE: Ct Orders Payment Distribution to Cy Pres Recipient
-------------------------------------------------------------------
The United States District Court for the Eastern District of
California issued an Order approving parties proposed Cy Pres
Recipient in the case captioned LUIS CABRALES, on behalf of himself
and all others similarly situated, Plaintiff, v. CASTLE & COOKE
MORTGAGE, LLC, a Delaware limited liability company, Defendant,
Case No. 14-CV-01138-MCE-JLT (E.D. Cal.).
The Court granted final approval of the class action settlement and
entered judgment in the case on February 10, 2017.
Pursuant to Section IV.C of the Settlement Agreement, the Parties
are to propose a cy pres recipient which is then to be approved by
the Court.
Accordingly, the parties stipulate, and the Court approves,
Consumer Federation of California as the cy pres recipient.
The Court, in an order dated November 25, 2019 Order, a full-text
copy of which is available at https://tinyurl.com/wmurxep from
Leagle.com, ordered the Claims Administrator to distribute the Cy
Pres Payment to Consumer Federation of California as the cy pres
recipient.
Luis Cabrales, Plaintiff, represented by James T. Hannink -
jhannink@sdlaw.com - Dostart Hannink & Coveney LLP & Zach P.
Dostart - zdostart@sdlaw.com - Dostart Hannink & Coveney LLP.
Castle & Cooke Mortgage, LLC, a Delaware limited liability company,
Defendant, represented by Marc Jeremy Feldman -
mfeldman@sheppardmullin.com - Sheppard, Mullin, Richter & Hampton
LLP & Theona Zhordania - tzhordania@sheppardmullin.com - Sheppard,
Mullin, Richter & Hampton LLP.
CHAMPION PETFOODS: Weaver Suit Seeks to Certify Classes & Subclass
------------------------------------------------------------------
In the class action lawsuit styled as SCOTT WEAVER, individually
and on behalf of all others similarly situated v. CHAMPION PETFOODS
USA, INC. and CHAMPION PETFOODS LP, Case No. 2:18-cv-01996-JPS
(E.D. Wisc.), Scott Weaver asks the Court to enter an order:
1. certifying these Classes:
Six Fish Class:
"all persons residing in the State of Wisconsin who
purchased Orijen Six Fish from July 1, 2014 to the
present"; and
Regional Red Class:
all persons residing in the State of Wisconsin who purchased
Orijen Regional Red with Angus Beef, Wild Boar, Boer Goat,
Romney Lamb, Yorkshire Pork & Wild Mackerel or Orijen
Regional Red Angus Beef, Ranch Raised Lamb, Wild Boar, Pork,
Bison Dry Dog Food (Regional Red) from July 1, 2014 to the
present";
2. certifying this Subclass:
Pentobarbital Subclass:
all persons residing in the State of Wisconsin who purchased
Regional Red between January 2016 and December 2018";
3. appointing himself as Class Representative; and
4. appointing Lockridge Grindal Nauen P.L.L.P.; Gustafson
Gluek, PLLC; Cuneo Gilbert & LaDuca LLP; Robbins Arroyo LLP;
Lite DePalma Greenberg, LLC; and Wexler Wallace LLP as Co-
Lead Class Counsel.
Champion Petfoods retails pet food products. The company offers
meat ingredients, carbohydrates, vegetable proteins, supplements,
and other protein based products.[CC]
The Plaintiff is represented by:
Rebecca A. Peterson, Esq.
Charles N. Nauen, Esq.
Robert K. Shelquist, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: cnnauen@locklaw.com
rkshelquist@locklaw.com
rapeterson@locklaw.com
- and -
Daniel E. Gustafson, Esq.
Karla M. Gluek, Esq.
Raina C. Borrelli, Esq.
GUSTAFSON GLUEK, PLLC
Canadian Pacific Plaza
120 South 6th Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Facsimile: (612) 339-6622
E-mail: dgustafson@gustafsongluek.com
kgluek@gustafsongluek.com
rborrelli@gustafsongluek.com
- and -
Kevin A. Seely, Esq.
Steven M. McKany, Esq.
ROBBINS LLP
5040 Shoreham Place
San Diego, CA 92122
Telephone: (619) 525-3990
Facsimile: (619) 525-3991
E-mail: kseely@robbinsllp.com
smckany@robbinsllp.com
- and -
Charles Laduca, Esq.
Katherine Van Dyck, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Ave NW, Suite 200
Washington, DC 20016
Telephone: 202-789-3960
Facsimile: 202-789-1813
E-mail: kvandyck@cuneolaw.com
charles@cuneolaw.com
- and -
Joseph DePalma, Esq.
Susana Cruz Hodge, Esq.
LITE DEPALMA GREENBERG, LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Telephone: (973) 623-3000
E-mail: jdepalma@litedepalma.com
scruzhodge@litedepalma.com
- and -
Mark A. Peterson, Esq.
PETERSON LAW and MEDIATION, LLC
1433 N. Water Street, Suite 400
Milwaukee, WI 53202
Telephone: (414) 877-7312
E-mail: mark@markpetersonlaw.com
CHECKR INC: Faces Phillips Suit in California Superior Court
------------------------------------------------------------
A class action lawsuit has been filed against CHECKR, INC. The case
is styled as Alicia G. Phillips, on behalf of herself and all
others similarly situated v. CHECKR, INC., Case No. CGC20583126
(Cal. Super., San Francisco Cty., Feb. 21, 2020).
The case type is stated as "OTHER NON EXEMPT COMPLAINTS."
A case management conference is set for July 22, 2020, at 10:30
a.m., at Department 610, 400 McAllister Street, in San Francisco,
California.
Checkr operates a platform (either online access or an API) that
browses and evaluates background reports that include national and
county criminal records, driving history, SSN verification,
previous addresses, etc.[BN]
The Plaintiff is represented by:
Stephanie R. Gast, Esq.
CLAYTON RESIDENTIAL: Gresham Balks at Biometrics Data Collection
-----------------------------------------------------------------
CRYSTAL GRESHAM, individually and on behalf of all others similarly
situated, Plaintiff v. CLAYTON RESIDENTIAL HOME, INC., Defendant,
Case No. 2020CH01912 (Ill. Cir., Cook Cty., February 18, 2020) is a
class action against the Defendant for violation of the Biometric
Information Privacy Act.
The case arises from the Defendant's unlawful collection, use,
storage, and disclosure of the Plaintiff's sensitive and
proprietary biometric data. The Defendant's employees, including
the Plaintiff, are required, as a condition of employment, to have
their hand geometry scanned by a biometric timekeeping device,
which expose them to serious privacy risks such as identity theft.
Moreover, the Defendant failed to inform them in writing of the
specific purpose and length of time for which their hand geometry
was being collected, stored, and used, as required by BIPA.
Clayton Residential Home, Inc. is a mental health care facility
owner and operator located at 2026 North Clark Street, Chicago,
Illinois. [BN]
The Plaintiff is represented by:
Ryan F. Stephan, Esq.
James B. Zouras, Esq.
Megan E. Shannon, 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
mshannon@stephanzouras.com
CONAIR CORP: Hergert and McClanahan Sue Over Defective Hair Dryers
------------------------------------------------------------------
EMILY HERGERT, individually and on behalf of all others similarly
situated; and JULIE MCCLANAHAN, individually and on behalf of all
others similarly situated, Plaintiffs, vs. CONAIR CORPORATION, a
Delaware corporation, authorized to do business in the State of
Illinois, Defendant, Case No. 2020L001943 (Ill. Cir., 1st Judicial,
Cook Cty., February 18, 2020) alleges that the Defendant
manufactures, designs, sells and/or markets defective hair dryers.
According to the complaint, Hergert and McClanahan suffered burn
injuries to their right wrist/forearm in each incident after dryers
malfunctioned despite being equipped with "safety plugs" designed
to recognize a change in the electrical current.
Conair Corporation is a Delaware corporation authorized to do
business in Illinois with its registered agent which sells small
appliances, personal care products, and health and beauty products
for both professionals and consumers. [BN]
The Plaintiffs are represented by:
Michelle N. Schneiderheinze, Esq.
V ANDERGINST LAW, P .C
4950 38th Avenue
Moline, IL 61265
Telephone: (309)788-5297
Facsimile: (309)517-3020
CONCORDIA UNIVERSITY: Student to File Class-Action Lawsuit
----------------------------------------------------------
Samuel Smith, writing for Christian Post, reports that after 115
years, Concordia University in Oregon will close its doors
following the end of the 2020 spring semester and faces a potential
class-action lawsuit launched by a student who claims he was misled
about the institution's financial struggles.
In a statement, the private Lutheran institution with about 5,700
students explained that its board of regents voted after much
prayer and consideration of all options to cease operations of the
school in a resolution approved on Feb. 7.
The board's vote follows "years of mounting financial challenges
and a challenging and changing educational landscape."
Interim President Tom Ries said the board concluded that it's
"impossible to pursue" the school's mission considering the current
and projected enrollment and finances of the school.
"The board has come to this difficult decision recognizing that it
is in the best interest of our students, our faculty, our staff,
and our partners," Ries said. He pledged to share more information
as it becomes available.
According to Oregon Live, the closure will result in over 1,500
layoffs that will occur by September.
Concordia says it is in "active discussions" with accrediting
bodies to provide students with opportunities to continue their
education at other higher education institutions. Concordia is also
in talks about how to help faculty and staff transition to the next
phase of their careers.
The university's 24-acre, Northeast Portland campus will return to
the ownership of the Lutheran Church-Missouri Synod and the
Lutheran Church Extension Fund, one of the campus' lenders. The
institutions will be looking to sell the property.
One Concordia student said that he plans to sue the school on
grounds that it misled students about its financial condition and
left them without a way to graduate or transfer to another school.
Student William Spaulding told Oregon Live that he hired an
attorney Monday, February 10, to draft a class-action lawsuit in
state court accusing the school of unlawful business practices.
Spaulding is requesting a jury trial.
Spaulding claims that he and other students would not have paid for
the 2020 semester had they been informed about the schools
struggling finances.
According to the College Board, the average annual tuition costs
for first-year students at Concordia is $29,480. Including room and
board and other expenses, the average cost is $45,360.
"Concordia University misrepresented the qualities and
characteristics of its education services and the value of its
tuition credits," the complaint claims.
The lawsuit does not specify how much Spaulding is seeking in
monetary damages but does request injunctive relief to require the
university to disclose how much it profited from tuition in 2020.
The lawsuit can be amended later to reflect the value of damages.
According to Spaulding's lawsuit, the first time Concordia students
were told about the financial struggles of the school was the same
day the school announced it would close.
"Upon information and belief, the high-paid executives at Concordia
University knew since 2019 that the University was in dire
financial condition and that the University's closure in 2020 was
looming," the lawsuit argues.
The lawsuit further complains that the university advertised
programs through late 2019 and early 2020 and even promised
students that by 2024 the university would have a "strong national
reputation."
"Relying on Concordia University's advertisements and
representations, plaintiff paid Concordia University thousands of
dollars for educational services and tuition credits in 2020," the
lawsuit adds.
Spaulding is represented by lawyer Michael Fuller, Esq. Fuller told
The Portland Business Journal that he is also talking with three
Concordia University students who attended Marylhurst University
when it shut down in 2018.
In an interview with Business Journal, Ries said that the school
had been considering an option to stay open before the vote of the
board of regents last week.
A Concordia University spokesperson told The Christian Post in an
email that the university believes that the claims made in
Spaulding's lawsuit are "without merit."
"Right now we are focused on supporting our faculty, staff and
students in their transition," the spokesperson added.
Concordia University's closure comes as many small, private
colleges are struggling with lower enrollments and struggling
finances.
In 2018, it was reported by Moody's Investors Service that about a
quarter of private colleges and universities in the U.S. spent more
than they earned in 2017. Meanwhile, the median revenue for such
schools was 2.4 percent with a median expense growth of 3 percent.
Ries told KGW8 that Concordia University has had a "negative cash
flow for quite some time." [GN]
D & A SERVICES: Placeholder Class Cert. Bid Filed in Voeks Suit
---------------------------------------------------------------
In the class action lawsuit styled as MEGAN VOEKS, Individually and
on Behalf of All Others Similarly Situated, the Plaintiff, v. D & A
SERVICES, LLC, d/b/a IL D & A SERVICES, LLC, the Defendant, Case
No. 2:20-cv-00272 (E.D. Wisc.), the Plaintiff filed a "placeholder"
motion for class certification in order to prevent against a
"buy-off" attempt, a tactic class-action defendants sometimes use
to attempt to prevent a case from proceeding to a decision on class
certification by attempting to "moot" the named plaintiff's claims
by tendering the plaintiff individual (but not classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
Plaintiff as the class representative, and appoint Plaintiff's
attorneys as class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
Email: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
DETROIT MEDICAL: Court Certifies FLSA Collective Class in Kim Suit
------------------------------------------------------------------
The United States District Court for the Eastern District of
Michigan, Southern Division issued an Opinion and Order granting in
part and denying in part Plaintiffs' Motion for Conditional
Certification and denying without prejudice Plaintiff's motion for
equitable tolling in the case captioned ANDREW KIM and JONATHAN
ROLLINS, Individually and on behalf of all others similarly
situated, Plaintiffs, v. DETROIT MEDICAL INFORMATICS, LLC, d/b/a
DMI, Defendant, Civil Case No. 19-11185 (E.D. Mich.).
Plaintiffs bring this lawsuit under the Fair Labor Standards Act
(FLSA) and similar statutes in Illinois, Missouri, and
Massachusetts. They allege that Defendant misclassified them and
similarly situated workers as independent contractors to circumvent
the protections of federal and state wage laws.
In the motion, Plaintiffs seek to represent the following class of
workers in this action:
All individuals who worked for Detroit Medical Informatics, LLC
d/b/a DMI providing training and support to Detroit Medical
Informatics, LLC d/b/a DMI's clients in connection with the
implementation of electronic recordkeeping systems in the United
States and who did not receive overtime compensation for hours
worked in excess of forty (40) per week from three years prior to
the filing of this lawsuit to the present.
Plaintiffs also ask the Court to enter an order tolling the statute
of limitations from the date their motion for conditional
certification was fully briefed until the date the motion is
decided. Plaintiffs make this request because the FLSA's statute of
limitations continues to run until an individual consents to opt-in
to a filed lawsuit. Tolling preserves the extinction on statute of
limitations grounds of potentially meritorious claims by potential
plaintiffs who are not yet aware of the action.
Conditional Certification & Notice
Courts within the Sixth Circuit and in other Circuits generally
apply a two-step procedure for determining whether a FLSA case
should proceed as a collective action.
At the initial stage, the court applies a fairly lenient standard
because it has minimal evidence.
At the first stage, commonly referred to as the notice stage or
conditional certification, the plaintiff must only make a modest
factual showing that the plaintiff is similarly situated to the
other employees he or she is seeking to notify. The plaintiff is
required to show only that his or her position is similar, not
identical, to the other employees.
At the second stage, the court examines more closely the question
of whether particular members of the class are, in fact, similarly
situated. The court's focus is on whether the individuals who have
opted into the litigation are similarly situated. The court may
decertify the class if it determines at the second step that the
plaintiffs are not similarly situated.
Plaintiffs have met the modest factual showing that they are
similarly situated to other individuals who were classified as
exempt employees, worked more than forty hours a workweek, and were
not paid overtime premiums under the FLSA. Defendant does not
challenge Plaintiffs' ability to make this showing.
As indicated above, however, Defendant does challenge the use of
e-mail to notify potential collective members of this action, a
follow-up reminder notice, the amount of time allowed to opt-in,
the method for individuals to opt-in, and Plaintiffs' purported
request for direct, continuous, and unsupervised contact with
putative class members.
To begin, the Court finds nothing to suggest that Plaintiffs'
counsel intends to engage in unprofessional or unethical
communications with potential collective members. Absent evidence
of inappropriate communications, the Court finds unwarranted
Defendant's request for a blanket order prohibiting either party's
counsel from communicating with putative class members about the
case until after the expiration of the court-approved notice
period.
Because notice will be sent via two methods regular United States
mail and e-mail the Court finds a reminder notice unnecessary and
redundant.
The Court also finds Defendant's proposed warning in the notice
concerning potential fees and costs unnecessary and, in fact,
improper. Courts in this District and elsewhere routinely refuse to
include such references, finding that it "may deter an employee
from participating, and that adverse effect is disproportionate to
the burden they may face by joining the action.
Plaintiffs propose an opt-in period of ninety days. Defendant seeks
to limit the period to thirty days. The efficiency of using e-mail
to notify potential collective members of their right to opt-in to
this lawsuit and to allow them to opt-in suggests that Plaintiffs'
proposed period is unnecessarily long. On the other hand, limiting
the opt-in period to thirty days seems unnecessarily short and
insufficient to enable individuals interested in opting in to do
so. Sixty days should be sufficient, while also moving the case
along expeditiously.
Finally, the parties disagree as to whether the class definition
should reflect a two- or three-year limitations period. The FLSA
establishes a general two-year statute of limitations, but the
limitations period is extended to three years for willful
violations. A violation is willful when the employer either knew or
showed reckless disregard for the matter of whether its conduct was
prohibited by the statute.
Where the plaintiff alleges that the employer's violations were
willful, but willfulness is disputed, as is the case here, courts
in this district and elsewhere generally find that a three-year
limitations period is appropriate to use in the notice to potential
class members.
The Court finds this reasoning sound and will likewise apply a
three-year limitations period when defining the conditional class.
Accordingly, the District Court, in its November 25, 2019 Opinion
and Order, a full-text copy of which is available at
https://tinyurl.com/vwajrkb from Leagle.com, is conditionally
certifying the following FLSA collective class:
All individuals who worked for Detroit Medical Informatics, LLC
d/b/a DMI providing training and support to Detroit Medical
Informatics, LLC d/b/a DMI's clients in connection with the
implementation of electronic recordkeeping systems in the United
States and who did not receive overtime compensation for hours
worked in excess of forty (40) per week from three years prior to
the filing of this lawsuit to the present (the FLSA Collective or
Collective).
Plaintiffs' Motion for Equitable Tolling is DENIED WITHOUT
PREJUDICE. The Court finds Plaintiffs' motion for equitable tolling
to be premature. Requests for equitable tolling may be renewed, if
necessary, at a later time.
Andrew KIm & Jonathan Rollins, Plaintiffs, represented by Alexandra
K. Piazza - apiazza@bm.net - Berger Montague PC, Frances J.
Hollander hollander@bwlawonline.com, Blanchard & Walker, PLLC,
Harold Lichten - hlichten@llrlaw.com - Lichten & Liss-Riordan PC,
Olena Savytska - osavytska@llrlaw.com - Lichten & Liss-Riordan,
P.C., Sarah Schalman-Bergen - sschalman-bergen@bm.net - Berger
Montague PC & David M. Blanchard - blanchard@bwlawonline.com -
Blanchard & Walker, PLLC.
Detroit Medical Informatics, LLC d/b/a DMI, Defendant, represented
by Bernard Mazaheri - bernie@thelaborfirm.com - Mazaheri &
Mazaheri.
DRAKE ENTERPRISES: Website Inaccessible to Blind, Guglielmo Claims
------------------------------------------------------------------
JOSEPH GUGLIELMO, on behalf of himself and all others similarly
situated, Plaintiffs v. DRAKE ENTERPRISES, LTD., Defendant, Case
No. 1:20-cv-01376 (S.D.N.Y., February 18, 2020) alleges that
Defendant failed to design, construct, maintain, and operate its
website to be fully accessible to and independently usable by
Plaintiff and other blind or visually-impaired people, thereby
violating the rights of Plaintiff under the Americans with
Disabilities Act and the New York City Human Rights Law.
Plaintiff is a blind, visually-impaired handicapped person and a
member of a protected class of individuals under the ADA.
Plaintiff seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
its website will become and remain accessible to blind and
visually-impaired consumers.
Drake Enterprises, Ltd. is a tax preparation software provider that
owns and operates www.drakesoftware.com, which offers products and
services for online sale and general delivery to the public. [BN]
The Plaintiff is represented by:
David P. Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201)282-6500
Fax: (201)282-6501
Email: dforce@steinsakslegal.com
EDDIE BAUER: Court Directs Filing of Supplemental Brief in Chu Suit
-------------------------------------------------------------------
The United States District Court for the Northern District of
California issued an Order requiring Plaintiff to File Supplemental
Brief in the case captioned KYO HAK CHU, Plaintiff, v. EDDIE BAUER
LLC, Defendant, Case No. 19-cv-04182-KAW. (N.D. Cal.)
Plaintiff filed an amended notice of dismissal, seeking to dismiss
the individual claim with prejudice and the class claims without
prejudice. Plaintiff also filed a response to the Court's order
requiring that Plaintiff address the Diaz factors if Plaintiff
sought to dismiss the class claims. Plaintiff did not address the
address the Diaz factors, but instead stated that he did not need
to address the factors due to the amendment of Rule 23(e).
The Court notes that "[w]hile Diaz pre-dates the Rule 23
amendments, and courts in this district have noted 'some
uncertainty' about the continued application of Rule 23(e) to
pre-certification settlement proposals in the wake of the 2003
amendments, our decisions have generally assumed that it does."
Those courts have reasoned that applying Diaz strikes the right
balance between the full-bore fairness review for settlement of
certified class claims, and doing nothing at all to ensure that
putative class members are protected from collusive deals and not
sacrificed for convenience when named representatives decide to
settle their claims individually.
Thus, courts in this district have continued to require that
parties provide supplemental briefing regarding the Diaz factors
even when the settlement would dismiss the class claims without
prejudice.
The Court, therefore, ORDERS Plaintiff to file a supplemental brief
addressing the Diaz factors.
A full-text copy of the District Court's February 10, 2020 Order is
available at https://tinyurl.com/tmmwh9b from Leagle.com
Kyo Hak Chu, Plaintiff, represented by Bobby Saadian -
bobby@wilshirelawfirm.com - Wilshire Law Firm, PLC & Thiago Merlini
Coelho - thiago@wilshirelawfirm.com - Wilshire Law Firm.
Eddie Bauer LLC, a Delaware corporation, Defendant, represented by
Myra B. Villamor - mvillamor@seyfarth.com - Seyfarth Shaw LLP.
ENHANCED FIELD: Lupardus Seeks OT Pay for Pipeline Inspectors
-------------------------------------------------------------
RICHARD LUPARDUS, on behalf of himself and on behalf of all others
similarly situated, Plaintiffs v. ENHANCED FIELD SERVICES INC.,
Defendant, Case No. 1:20-cv-00137 (W.D. Mich., February 14, 2020)
is a collection action brought against Defendant for its alleged
failure to pay overtime compensation to their non-exempt workers,
including Plaintiff, pursuant to the Fair Labor Standards Act.
Plaintiff worked for Defendant as pipeline inspector primarily in
West Virginia from approximately September of 2018 to March of
2019.
According to the complaint, Plaintiff and other inspectors commonly
work in excess of 12 hours each day and despite working overtime
hours, Defendant only pays them the same flat day rate regardless
on the number of hours worked. Defendant misclassified Plaintiff
and other inspectors as exempt from overtime pay and denied them
full compensation for their hours worked over 40.
Enhanced Field Services Inc. provides pipeline inspection services,
project management, engineering, construction procurement, among
other offerings. [BN]
The Plaintiff is represented by:
Bradley K. Glazier, Esq.
Robert M. Howard, Esq.
BOS & GLAZIER, P.L.C.
990 Monroe Avenue, N.W.
Grand Rapids, MI 49503
Tel: (616)456-6814
Emails: bglazier@bosglazier.com
rhoward@bosglazier.com
- and -
Beatriz Sosa-Morris, Esq.
John Neuman, Esq.
SOSA-MORRIS NEUMAN, PLLC
5612 Chaucer Drive
Houston, TX 77005
Tel: (281)885-8844
Emails: Bsosamorris@smnlawfirm.com
EVENFLO CO: Faces Xavier et al. Suit Over Booster Seat Advertising
------------------------------------------------------------------
MIKE XAVIER; LINDSEY BROWN; AND MARCELLA REYNOLDS, individually and
on behalf of all others similarly situated, Plaintiffs v. EVENFLO
COMPANY, INC., Defendant, Case No. 1:20-cv-10336-JCB (D. Mass.,
February 19, 2020) is a class action against the Defendant for
alleged violations of various consumer protection laws including
the California Legal Remedies Act, the Michigan Consumer Protection
Act, and the Texas Deceptive Trade Practices and Consumer
Protection Act.
The Plaintiffs, on behalf of all other similarly-situated
consumers, allege that the Defendant engaged in deceptive and
misleading advertising of its Big Kid booster seats as side-impact
tested and safe for children as small as 30 pounds. However,
legitimate science and legitimate testing reveals that the Big Kid
booster seats provide dubious benefit to children involved in
side-impact collisions, especially those under 40 pounds, thereby
putting children's safety at risk.
Evenflo Company, Inc. is a company that designed, manufactured and
marketed a broad range of juvenile products including car seats. It
is a wholly-owned subsidiary of Goodbaby International Holdings
Limited. [BN]
The Plaintiff is represented by:
Jessica R. MacAuley, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
55 Cambridge Parkway, Suite 301
Cambridge, MA 02142
Telephone: (617) 482-3700
Facsimile: (617) 482-3003
E-mail: jmacauley@hbsslaw.com
- and -
Steve W. Berman, Esq.
Thomas E. Loeser, Esq.
Ted Wojcik, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Second Avenue, Suite 2000
Seattle, WA 98101
Telephone: (206) 623-7292
Facsimile: (206) 623-0594
E-mail: steve@hbsslaw.com
toml@hbsslaw.com
tedw@hbsslaw.com
- and -
Jeffrey S. Goldenberg, Esq.
Todd B. Naylor, Esq.
One West Fourth Street, 18th Floor
Cincinnati, OH 45202-3604
Telephone: (513) 345-8291
Facsimile: (513) 345-8294
E-mail: jgoldenberg@gs-legal.com
EVENFLO CO: Perry Says Booster Seats Fail Safety Standards
----------------------------------------------------------
ASHLEY PERRY on behalf of herself and all others similarly
situated, Plaintiff, v. EVENFLO COMPANY, INC., Defendant, Case No.
2:20-cv-00377-TLN-EFB (E.D. Cal., February 19, 2020) is a class
action against the Defendant for its false, misleading, and
deceptive marketing of the "Big Kid" booster seats as a safe, side
impact tested' booster seat suitable for children as small as 30
pounds.
The complaint contends the Defendant fail to inform consumers
including the Plaintiff and all others similarly situated that the
Products fail to meet safety testing and if used in the manner
marketed by Defendant can cause death or severe injury.
Evenflo Company, Inc. is a Delaware corporation and is a
wholly-owned subsidiary of Goodbaby International Holdings Limited
with principal place of business in Miamisburg, Ohio. The Company
engages in the design, research and development, manufacturing,
marketing and sale of Evenflo Baby and ExerSaucer branded juvenile
products. [BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Joel D. Smith, Esq.
Blair E. Reed, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
– and –
Scott A. Bursor, Esq.
BURSOR & FISHER, P.A.
2665 S. Bayshore Dr., Suite 220
Miami, FL 33133
Telephone: (305) 330-5512
Facsimile: (305) 676-9006
EVENFLO COMPANY: Father Files Car Seat Action for False Advertising
-------------------------------------------------------------------
A California father has filed a nationwide class-action lawsuit
against Evenflo, maker of the popular Evenflo Big Kid booster car
seat, for allegedly selling the car seat with misleading
advertising and safety claims, placing children weighing less than
40 pounds in grave danger during a car crash, according to Hagens
Berman.
The lawsuit, filed Feb. 12, 2020, in the U.S. District Court for
the Southern District of Ohio states that Ohio-based Evenflo's
popular Big Kid booster seat was sold to consumers as "side-impact
tested" and safe for children weighing less than 40 pounds. But the
lawsuit alleges Evenflo does not tell consumers that its own tests
reveal that a child seated in a Big Kid booster during a
side-impact collision could be in grave danger of serious injury or
death.
In 2018, side-impact crashes were responsible for more than a
quarter of deaths in vehicle collisions of children under 15, and
yet, according to the lawsuit, Evenflo's bar for "passing" its
claimed "rigorous" side impact testing is so low that the only way
it would fail one of its own products was if a child-sized dummy
ended up on the floor or the booster seat itself broke into
pieces.
"Millions of parents and child guardians across the country
believed the lies that Evenflo printed in its marketing for its Big
Kid booster seats, leaving children at high-risk of injury or even
death during a side-impact collision," said Steve Berman,
co-founder and managing partner of Hagens Berman. "Evenflo chose to
ignore the warning signs of its own testing, which revealed plain
and simple that children seated in Evenflo's Big Kid car seat would
not be safe during a side-impact car crash."
The named plaintiff in the case purchased multiple Evenflo Big Kid
car seats for his twins for use in his four vehicles, all under the
impression that the booster seats were "side-impact tested" as
stated in Evenflo's marketing. The suit's plaintiff, his wife and
his two children were in a side-impact collision that resulted in
their vehicle being totaled in 2011. For this reason, side-impact
crashworthiness was a significant part of his car seat purchase
decision.
"Evenflo chose to prioritize its own profits over their promise to
the public to safeguard the lives and health of children, an
egregious choice that has put young lives at risk," he added.
"Parents everywhere place the safety of their children first, and
Evenflo sought to capitalize on that fact through misleading claims
of safety testing."
Evenflo is one of the nation's largest sellers of children's
booster seats, and millions of Big Kid boosters have been purchased
from Amazon, Babies R Us, Costco, Target, Walmart and other major
retailers.
Investigating Evenflo's Big Kid Booster Seat
A recent news investigation conducted by ProPublica found that
Evenflo's low weight recommendation for its Big Kid booster, a
top-selling booster seat in the United States, is indicative of its
having "repeatedly made decisions that resulted in putting children
at risk."
"The company's tests show that when child-sized crash dummies
seated in Big Kid boosters were subjected to the forces of a T-bone
collision, they were thrown far out of their shoulder belts.
Evenflo's top booster seat engineer would later admit in a
deposition if real children moved that way, they could suffer
catastrophic head, neck and spinal injuries — or die," the
investigation found.
The lawsuit states: "Evenflo—in a cynical ploy to out-compete its
main rival, Graco—intentionally misrepresents the safety of its
products to parents and other consumers. Specifically, Evenflo
prominently markets one of its most popular products, the 'Big Kid'
booster seat, as 'side impact tested' and, until recently, as safe
for children as light as 30 pounds. But these claims are false:
Evenflo's own testing demonstrates that the Big Kid booster seat
leaves children—especially those under 40 pounds—vulnerable to
serious head, neck, and spine injuries in a side-impact crash."
On its website and in its marketing, Evenflo tells parents and
guardians that its in-house side impact testing is "rigorous,"
simulates realistic conditions, and is equivalent to federal
testing. According to the lawsuit, in reality, Evenflo's tests are
anything but: videos reveal that when child-sized crash dummies
seated in Big Kid booster seats are subjected to the forces of a
T-bone collision, they are thrown far out of their shoulder belts.
The lawsuit seeks reimbursement to consumers for their purchasing
defective products sold under misleading safety statements.
Find out more about the class-action lawsuit against Evenflo for
its Big Kid booster car seat.
Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action
law firm with nine offices across the country. The firm's tenacious
drive for plaintiffs' rights has earned it numerous national
accolades, awards and titles of "Most Feared Plaintiff's Firm," and
MVPs and Trailblazers of class-action law. More about the law firm
and its successes can be found at hbsslaw.com. Follow the firm for
updates and news at @ClassActionLaw.
Contact:
Ashley Klann, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
Tel: 206-268-9363
Email: ashleyk@hbsslaw.com
[GN]
FACEBOOK INC: Cal. Northern Dist. Narrows Claims in Heeger Suit
---------------------------------------------------------------
Judge James Donato of the U.S. District Court for the Northern
District of California granted in part and denied in part, with
leave to amend, Facebook's motion to dismiss the complaint, BRETT
HEEGER, Plaintiff, v. FACEBOOK, INC., Defendant, Case No.
18-cv-06399-JD (N.D. Cal.).
The case is a privacy class action lawsuit brought by Heeger
against the Defendant, on behalf of a putative class of Facebook
users who turned off Facebook's "Location History" feature. Heeger
alleges that Facebook continued to "track, log, and store" their
private location information "regardless of users' choices" to
deactivate that feature.
Facebook moved to dismiss the Plaintiff's complaint under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). It says that
Heeger lacks Article III standing for all of the claims because he
has not alleged a concrete and specific injury in fact.
Facebook's unopposed request for judicial notice is granted, and
the Plaintiff's fifth claim under California's Consumer Legal
Remedies Act is dismissed because the Plaintiff has abandoned that
claim to "streamline the case." That leaves four claims: (1)
violation of the California Invasion of Privacy Act ("CIPA"); (2)
violation of California's constitutional right of privacy; (3)
intrusion upon seclusion; and (4) violation of the Stored
Communications Act ("SCA").
Judge Donato denied Facebook's motion to dismiss under Rule
12(b)(1), but granted the request under Rules 8 and 12(b)(6).
Among other things, the Judge finds that as currently alleged, the
complaint does not provide enough facts to undertake the
context-specific inquiry into the plausibility of the privacy
expectation or the offensiveness of the intrusion. The complaint
does not clearly say what level of location data Facebook is
alleged to have collected after the "Location History" feature was
turned off.
Overall, Judge Donato concludes that the Plaintiff's allegations
fail to meet the requirement of a "short and plain statement" under
Federal Rule of Civil Procedure Rule 8 or to plausibly state
intrusion upon seclusion and California constitutional privacy
claims under Rules 8 and 12(b)(6). Hence, the claims are
dismissed.
Heeger was granted leave to file an amended complaint by Jan. 27,
2020, if he so chooses. Failure to meet that deadline will result
in dismissal with prejudice under Rule 41(b).
A full-text copy of the District Court's Dec. 27, 2019 Order is
available at https://is.gd/wk0sm5 from Leagle.com.
Brett Heeger, Plaintiff, represented by Barrett Jay Vahle --
vahle@stuevesiegel.com -- Stueve Siegel Hanson LLP, Norman E.
Siegel -- niegel@stuevesiegel.com -- Stueve Siegel Hanson LLP,
Jillian Rebecca Dent, Stueve Siegel Hanson LLP, Katherine Marie
Aizpuru -- kaizpuru@tzlegal.com -- Tycko and Zavareei LLP & Sabita
J. Soneji -- ssoneji@tzlegal.com -- Tycko & Zavareei LLP.
Facebook, Inc., Defendant, represented by Andrew Cath Rubenstein --
Andrew.Rubenstein@mto.com -- Munger, Tolles and Olson, Rosemarie
Theresa Ring, Munger, Tolles & Olson LLP, Laura Danielle Smolowe,
Munger Tolles Olson LLP & Zoe Bedell -- Zoe.Bedell@mto.com --
Munger Tolles Olson.
FCA US: Court Awards $23K in Attorney’s Fees in Flores Suit
-------------------------------------------------------------
Magistrate Judge Jennifer Thurston of the U.S. District Court for
the Eastern District of California entered an Order granting in
part Plaintiffs' Motion for Attorney's Fees in the case captioned
JULIAN III FLORES and ALEJANDRA FLORES, Plaintiffs, v. FCA US LLC,
et al., Defendants, Case No. 1:17-cv-0427-JLT. (E.D. Cal.).
Julian III Flores and Alejandra Flores asserted in their complaint
that FCA US LLC violated of the Song-Beverly act and committed
fraudulent inducement under California law. Plaintiffs purchased a
Dodge Ram 1500 and subsequently asserted that the vehicle was
delivered to them with serious defects and non-conformities to
warranty and developed other serious defects and non-conformities
to warranty including, but not limited to, transmission,
electrical, suspension, and engine defects.
Under California's Song-Beverly Act, a prevailing buyer is entitled
to recover as part of the judgment a sum equal to the aggregate
amount of costs and expenses, including attorney's fees based on
actual time expended, determined by the court to have been
reasonably incurred by the buyer in connection with the
commencement and prosecution of such action.
The parties settled the underlying claims, and Plaintiffs now seek
an award of attorney fees and costs.
As prevailing buyers, Plaintiffs asserted that they are entitled to
fees and costs under the Song-Beverly Act. Plaintiffs sought: (1)
an award of attorneys' fees pursuant to the Song-Beverly Act in the
amount of $45,951.25; (2) a lodestar multiplier of 0.5, in the
amount of $22,975.63; and (3) actual costs and expenses of
$13,182.90. Thus, Plaintiffs request a total award of $82,109.78.
Defendant acknowledges that "Plaintiffs are entitled to recover
attorney's fees, costs, and expenses," but argues the Song-Beverly
Act "does not authorize a blank check" and the amount requested is
unreasonable. Defendant proposes the fee award to Plaintiffs
reflect the following: (1) reduction of fees incurred for
duplicative, unnecessary, and clerical tasks; (2) a deduction of 20
percent due to the practice of quarter-hour billing practice of
Hackler, Daghighian, Martino & Novak; (3) and a reduction in the
hourly rate to reflect rates reasonable in Fresno Division of the
Eastern District. In addition, Defendant contends a multiplier
award is not appropriate in this action.
Upon deliberation, the District Court rules that Plaintiffs' motion
is GRANTED in part, in the modified amount of $23,220.55.
A full-text copy of the District Court's November 21, 2019 Order
available at https://tinyurl.com/s4j9b69 from Leagle.com
Julian III Flores & Alejandra Flores, Plaintiffs, represented by
Maite Christine Colon , Knight Law Group, LLP -
maitec@knightlaw.com - Sepehr Daghighian – sepehr@daghighian.com
- Hackler Daghighian Martino & Novak, P.C., Steve Mikhov , Knight
Law Group, LLP, & Russell W. Higgins , Knight Law Group LLP, 10250
Constellation Blvd, Ste 2500, Los Angeles, CA 90067-6225
FCA US LLC, a Delaware Limited Liability Company, Defendant,
represented by Jeanette Catuira Suarez -jsuarez@nixonpeabody.com -
Nixon Peabody, Leon Vram Roubinian , Nixon Peabody LLP, Jeffery
Fadeff , Nixon Peabody LLP & Kristi Livedalen , Nixon Peabody, LLP,
1 Embarcadero Ctr Ste 3200, San Francisco, CA 94111-3739
FLOWERS FOODS: Court Stays Class Cert. Proceedings in Ludlow Suit
-----------------------------------------------------------------
In the class action lawsuit styled as DANIEL LUDLOW, an individual
and on behalf of others similarly-situated; and WILLIAM LANCASTER,
individually and on behalf of others similarly-situated v. FLOWERS
FOODS, INC., a Georgia Corporation; FLOWERS BAKERIES, LLC, a
Georgia limited liability company; and FLOWERS FINANCE, LLC, a
limited liability company, Case No: 18-CV-1190-JLS-JLB (S.D. Cal.),
the Court entered an order:
1. granting Defendants' motion to stay class certification
proceedings;
2. denying without prejudice Plaintiffs' motion for class
certification; and
3. deferring ruling on Defendants' motion for judgment on the
pleadings.
The Plaintiffs contend that a stay would prolong the alleged
'continuing harm' caused by the misclassification of Plaintiffs as
independent contractors, and delay Plaintiffs from receiving the
injunctive and monetary relief they seek. The Court finds these
reasons unavailing. Mere delay in receiving damages is an
insufficient basis to deny a stay. Further, the fact that
Plaintiffs have not moved for a preliminary injunction to stop the
alleged harm and did not file their case for several years after
the alleged harm began lessens the Court's concerns about delaying
prospective relief and the harm continuing.
All of Plaintiffs' claims stem from their allegation that
Defendants intentionally misclassified them as independent
contractors instead of employees, thereby denying Plaintiffs
certain rights and benefits afforded to employees, including
overtime wages, rest and meal periods, payment for all time worked,
accurate wage statements, indemnification for expenses, and
protection from unlawful wage deductions.
The Plaintiffs work as distributors for Defendants' products.
Flowers Foods is a producer and marketer of packed bakery food. The
company operates 47 bakeries producing bread, buns, rolls, snack
cakes, pastries, and tortillas.[CC]
FORD MOTOR: Bid for Judgment on Pleadings in Yetter Suit Granted
----------------------------------------------------------------
In the case, WAYNE W. YETTER, Plaintiff, v. FORD MOTOR COMPANY,
Defendant, Case No. 19-CV-00877-LHK (N.D. Cal.), Judge Lucy H. Koh
of the U.S. District Court for the Northern District of California,
San Jose Division, granted the Defendant's motion for judgment on
the pleadings with prejudice.
The Plaintiff resides in Salinas, California. Defendant Ford is a
vehicle manufacturer incorporated in Delaware. On June 30, 2008,
the Plaintiff purchased a new 2008 Ford Super Duty F-350 truck from
Salinas Valley Ford, an authorized dealer of the Defendant's
vehicles. He paid $56,673.20 for the vehicle.
The Plaintiff alleges that the vehicle that the Defendant
manufactured and that he purchased contains a defective engine.
Navistar supplied a 6.4 liter engine for Ford's Super Duty trucks
for model year 2008 to 2010. Ford claimed that the 6.4 liter
engine had been tested the equivalent of 10 million miles on road
and in the lab, helping ensure excellent long-term durability.
Nonetheless, the Plaintiff alleges that the 6.4 liter engine is
plagued by numerous problems and safety concerns.
The Plaintiff delivered the vehicle to "an authorized Ford repair
facility" for various repairs on multiple occasions, including on
Jan. 15, 2009; July 9, 2009; March 4, 2010; Dec. 7, 2010; Jan. 5,
2011; Oct. 3, 2011; April 30, 2012; Oct. 27, 2012; and Jan. 25,
2016. On each occasion, the technician at the repair facility
informed him that the Vehicle had been repaired and was safe to
drive.
While the Plaintiff still owned the vehicle, a class action was
filed on May 14, 2013 against the Defendant in the U.S. District
Court for the Northern District of Illinois -- Darne v. Ford Motor
Co., Case No. 13-cv-03594 (N.D. Ill. May 14, 2013). The putative
nationwide class was initially defined as all persons in the United
States who purchased or leased Ford trucks with the 6.4-liter Super
Duty diesel engine.
The putative class brought claims for (1) breach of express
warranty; (2) breach of implied warranty; (3) breach of state
consumer fraud statutes; (4) violations of the Illinois Uniform
Deceptive Trade Practices Act; (5) negligence; (6) fraud; (7)
unjust enrichment; and (8) exemplary damages. Both parties
acknowledge that the Plaintiff was a putative member of the Darne
class. On Sept, 1, 2017, the U.S. District Court for the Northern
District of Illinois dismissed the case with prejudice.
On Jan. 17, 2019, the Plaintiff filed a complaint against the
Defendant in California Superior Court for the County of Monterey.
His complaint alleged five causes of action: (1) breach of express
warranty under the Song-Beverly Consumer Warranty Act; (2) breach
of implied warranty under the Song-Beverly Act; (3) fraudulent
concealment; (4) fraudulent inducement - intentional
misrepresentation; and (5) fraudulent inducement - negligent
misrepresentation. The Plaintiff also alleged that all statute of
limitations periods are tolled by the discovery rule and the
doctrine of fraudulent concealment.
On Jan. 31, 2019, in state court, the Defendant filed an answer to
the Plaintiff's complaint. On Feb. 19, 2019, the Defendant removed
the case to federal court. After removal, the Defendant filed a
motion for judgment on the pleadings on March 14, 2019. On July
19, 2019, the Court granted the Defendant's motion for judgment on
the pleadings with leave to amend.
Following the Court's order granting the Defendant's motion for
judgment on the pleadings with leave to amend, the Plaintiff filed
an amended complaint. The FAC alleges the same five causes of
action as the Complaint: (1) breach of express warranty under the
Song-Beverly Act; (2) breach of implied warranty under the
Song-Beverly Act; (3) fraudulent concealment; (4) fraudulent
inducement — intentional misrepresentation; and (5) fraudulent
inducement — negligent misrepresentation.
Similar to the Complaint, the FAC alleges that all statute of
limitations periods are tolled by the discovery rule and the
doctrine of fraudulent concealment. The FAC, however, also claims
that Darne v. Ford Motor Co., Case No. 13-cv-03594 (N.D. Ill. May
14, 2013) -- a class action filed on May 14, 2013 in the U.S.
District Court for the Northern District of Illinois that alleged
similar claims against the Defendant -- tolled the relevant statute
of limitations periods because of the tolling doctrine established
in American Pipe & Construction Co. v. Utah" and "under California
law by the doctrine of equitable tolling." Finally, the FAC
included additional allegations regarding the statements in the
Ford marketing brochure and the statements made by a salesperson at
Salinas Valley Ford.
Before the Court is the Defendant's motion for judgment on the
pleadings. The Defendant contends that the Court should grant
judgment on the pleadings on all five of the Plaintiff's claims.
It argues that all of the Plaintiff's claims are time-barred and
that the Plaintiff's fraud claims fail to meet Rule 9(b)'s
heightened pleading standard and that many of the alleged
statements constitute non-actionable puffery.
The Plaintiff offers a number of responses. First, the Plaintiff
argues that the Song-Beverly express and implied warranty claims
are tolled by the future performance exception. Second, he again
contends that the delayed discovery rule and the fraudulent
concealment doctrine tolled the statute of limitations on all his
claims. Third, he asserts that all of the Plaintiff's claims are
subject to American Pipe tolling. Fourth, the Plaintiff argues
that California equitable tolling applies to save all of his
claims. Finally, the Plaintiff asserts that the Amended Complaint
fulfills Rule 9(b)'s requirements and that the alleged statements
are actionable.
Judge Koh agrees with the Defendant that none of the Plaintiff's
tolling arguments apply to save his claims. Specifically, the
future performance exception, the delayed discovery rule, the
fraudulent concealment doctrine, American Pipe tolling, and
California equitable tolling do not save the Plaintiff's claims.
The Judge addresses each of these tolling arguments in turn before
addressing the Defendant's remaining arguments that the Plaintiff's
fraud claims fail to state a claim. The Judge agrees with the
Defendant that the FAC fails to state a claim for fraud.
Accordingly, Judge Koh granted the Defendant's motion for judgment
on the pleadings with prejudice.
A full-text copy of the Court's Dec. 20, 2019 Order is available at
https://is.gd/U17jI1 from Leagle.com.
Wayne W. Yetter, Plaintiff, represented by Amy-Lyn Morse --
Info@KnightLaw.com -- Knight Law Group, LLP, Steve Mikhov, Knight
Law Group, LLP, Daniel Max Kalinowski, Knight Law Group, LLP,
George Semaan, Knight Law Group & Maite C. Colon --
maitec@knightlaw.com -- Knight Law Group, LLP.
Ford Motor Company, a Delaware Corporation, Defendant, represented
by Jeff Eric Scott -- scottj@gtlaw.com -- Greenberg Traurig, LLP,
Breeanna Nicole Brewer, Greenberg Traurig LLP, Daniell Kai Newman,
Greenberg Traurig, LLP & Elizabeth Vanis McNulty --
emcnulty@efstriallaw.com -- Evans Fears & Schuttert, LLP.
GERON CORP: Faruqi & Faruqi Reminds Investors of March 23 Deadline
------------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm,
reminds investors in Geron Corporation (NASDAQ: GERN) ("Geron" or
the "Company") of the March 23, 2020 deadline to seek the role of
lead plaintiff in a federal securities class action that has been
filed against the Company.
If you invested in Geron stock or options between March 19, 2018
and September 26, 2018 and would like to discuss your legal rights,
click here: www.faruqilaw.com/GERN. There is no cost or obligation
to you.
You can also contact us by calling Richard Gonnello toll free at
877-247-4292 or at 212-983-9330 or by sending an e-mail to
rgonnello@faruqilaw.com.
Contact:
Attn: Richard Gonnello, Esq.
FARUQI & FARUQI, LLP
685 Third Avenue, 26th Floor
New York, NY 10017
Telephone: (877) 247-4292 or (212) 983-9330
Email: rgonnello@faruqilaw.com
The lawsuit has been filed in the U.S. District Court for the
Northern District of California on behalf of all those who
purchased Geron common stock between March 19, 2018 and September
26, 2018 (the "Class Period"). The case, Tollen v. Geron
Corporation et al., No. 3:20-cv-00547 was filed on January 23, 2020
and has been assigned to Judge William Alsup.
The lawsuit focuses on whether the Company and its executives
violated federal securities laws by making false and/or misleading
statements and/or failing to disclose that: (1) the spleen response
rate, which measured the reduction in spleen swelling, and (2) a
composite of various symptoms called the Total Symptom Score (TSS).
In order for IMbark to succeed, patients in the study needed to
show at least a 35% reduction in spleen volume and a minimum 50%
reduction in TSS.
On the morning of March 27, 2018, Adam Feuerstein, a veteran
biotech journalist, published an article on STAT News, an online
life sciences publication, entitled "The top-performing biotech
stock this year has surged on flimsy data." In the article,
Feuerstein called out Geron and Scarlett for intentionally
misleading the market with their statements on March 16 and March
19, 2018.
On this news, the Company's stock price fell from $5.98 per share
on March 26, 2018 to $5.15 per share on March 27, 2018: a $0.83 or
13.88% drop.
Then, on September 27, 2018, the Company finally admitted that
IMbark was a failure. The IMbark study showed only a 10% decrease
in spleen volume, when 35% or more was required for success, and a
32% reduction in Total Symptom Score, when at least 50% was needed.
The same day the full results were finally disclosed, Adam
Feuerstein published another article on STAT News concerning Geron.
The article stated in relevant part: "Back in March, Geron CEO John
Scarlett ignited a steep run higher in the stock price with a
suggestion, uttered on a conference call, that imetelstat was
prolonging survival in patients with the bone marrow disorder
myelofibrosis." Feuerstein noted in the article that "Geron raised
$84 million through highly dilutive stock sales in the second
quarter," ultimately concluding, "[t]aking advantage of the
hyped-up stock price earlier this year was a fiscally smart move,
although that's small consolation to shareholders left holding the
bag."
On this news, the Company's stock price fell from $2.31 per share
on September 27, 2018 to $1.76 per share on September 28, 2018: a
$0.45 or 23.81% drop.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding Geron's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others. [GN]
GROVE SQUARE: Burke Harvey Reminds Consumers of Settlement
----------------------------------------------------------
Burke Harvey, LLC and Ward & Cooper, LLC remind consumers to act on
their rights in a class action settlement with Sturm Foods, Inc.
and Treehouse Foods, Inc.
You are included in the settlement as a "Class Member" if you
purchased Grove Square Coffee ("GSC") products from a retail store
in Alabama, California, Illinois, New Jersey, New York, North
Carolina, South Carolina, or Tennessee any time from September 30,
2010 through September 30, 2014.
Class Members who submit a valid Claim Form for purchases made in:
(1) Alabama will receive up to $100 per Claim Form regardless of
the number of GSC products purchased; (2) New York will receive up
to $275 per Claim Form regardless of the number of GSC products
purchased; and (3) California, Illinois, New Jersey, North
Carolina, South Carolina, and Tennessee will receive $25 per GSC
product purchased, for up to three purchases, for up to $75 per
Claim Form. Payment amounts may be reduced on a proportionate
basis, if needed, to pay all valid claims.
You must submit a valid Claim Form by May 7, 2020. Claim Forms may
be submitted online at www.InstantCoffeeLawsuit.com or printed from
the website and mailed to the address on the form. Claim Forms are
also available by calling 1-866-800-0337.
If you do nothing, you will not get a settlement payment. You may
object to the settlement and notify the Court that you or your
lawyer intend to appear at the Court's Fairness Hearing. Objections
are due March 23, 2020.
The settlement resolves a class action lawsuit about whether the
labeling of GSC products for use in Keurig(R) brewing machines
misled consumers into believing that GSC light, medium and dark
roast coffee contained premium, ground coffee. Defendants deny any
wrongdoing. [GN]
GULF STATES SERVICES: Nave Seeks OT Pay for Technicians
-------------------------------------------------------
QUINTEN NAVE, Plaintiff v. GULF STATES SERVICES GROUP LLC and
MARCUS PICKETT HEUCHAN, Defendants, Case No. 2:20-cv-00546-JTM-KWR
(E.D. La., February 14, 2020) is a collective action complaint
brought against the Defendants for their alleged violation of the
Fair Labor Standards Act.
Plaintiff worked with Defendant from approximately January through
July of 2019 as the lead technician and essentially assumed the
role of foreman at Defendants' Construction Project in Louisiana.
Plaintiff alleges that Defendants failed to fully compensate him
for his long distance travel time for work, failed to pay him
overtime despite regularly working overtime, failed to give his
last paycheck when he was terminated in November of 2019, failed to
pay him for his accrued and unused vacation, and he was forced by
Defendant to pay for damage to a company vehicle which was fully
insured.
Marcus Pickett Heuchan is the sole member of Gulf States and had
the power to hire and fire employees and to set company pay
policies and practices.
Gulf States Services Group LLC provides construction services such
as the construction of cellphone towers sites. [BN]
The Plaintiff is represented by:
Justin M. Chopin, Esq.
Adam P. Sanderson, Esq.
THE CHOPIN LAW FIRM, LLC
650 Poydras Street, Suite 1550
New Orleans, LA 70130
Tel: Justin Direct: 504-229-6681
Adam Direct: 504-517-1675
Fax: 504-324-0640
Emails: Justin@ChopinLawFirm.com
Adam@ChopinLawFirm.com
- and -
Charles J. Stiegler, Esq.
STEIGLER LAW FIRM LLC
318 Harrison Ave., Suite 104
New Orleans, LA 70124
Tel: (504) 267-0777
Fax: (504) 513-3084
Email: Charles@StieglerLawFirm.com
HEAVNER BEYERS: Lauderdale Balks at Debt Collection Practices
-------------------------------------------------------------
ANNETTE LAUDERDALE, individually and on behalf of all others
similarly situated, Plaintiff v. HEAVNER, BEYERS & MIHLAR, LLC,
Defendant, Case No. 1:20-cv-01165 (N.D. Ill., February 18, 2020) is
a class action complaint brought against Defendant for its alleged
violations of the Fair Debt Collection Practices Act.
According to the complaint, Plaintiff received a letter from
Defendant dated August 16, 2019, as Defendant's initial written
communication to Plaintiff concerning an alleged debt which was
allegedly assigned or otherwise transferred to Defendant for
collection. The letter provides and amount of the debt "as of June
12, 2019", which is approximately 5 weeks prior to the date of the
Letter.
Plaintiff alleges that the letter is deceptive and misleading
because it fails to clarify whether the amount of the debt on
August 16, 2019 is the same as it was "as of June 12, 2019" and why
June 12, 2019 is the operative date for the amount of the debt.
Also, the latter fails to indicate whether the debt had increased,
decreased or stayed the same after June 12, 2019 and the date of
the letter August 16, 2019.
Heavner, Beyers & Mihlar, LLC is a debt collector. [BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
BARSHAY SANDERS, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516)203-7600
Fax: (516)706-5055
Emails: csanders@barshaysanders.com
HERTZ CORP: Aiyekusibe Suit Wins Conditional Class Certification
----------------------------------------------------------------
In the class action lawsuit styled as BAMIDELE AIYEKUSIBE, MISCHELE
HIGGINSON and SHANTAL BROWN-WINN, individually and on behalf of all
others similarly situated v. THE HERTZ CORPORATION and DTG
OPERATIONS, INC., Case No. 2:18-cv-00816-SPC-MRM (M.D. Fla.), the
Hon. Judge Sheri Polster Chappel entered an order on Feb. 19,
2020:
1. accepting and adopting Magistrate Judge Mac R. McCoy's
Report and Recommendation (R&R) and incorporating its
findings;
2. overruling Plaintiffs' assert limited objections to the
R&R over the proposed notice form.
3. denying as moot Plaintiffs' Unopposed Motion to Strike
Objection by Figueroa to Joint Motion and Stipulation for
Conditional Certification and Plaintiffs' Response to
Figueroa Objections in light of Plaintiffs' Notice of
Resolution of Objection and Motion to Strike;
4. granting and denying in part Parties' Joint Motion and
Stipulation for Conditional Collective Action Certification
as follows:
a. conditional certification under 29 U.S.C. section 216(b)
is granted based on the parties' stipulated definition:
"all persons who worked for Defendants The Hertz
Corporation and DTG Operations, Inc. in the positions of
Function Manager or Location Manager, at any time from
July 1, 2017 to present."
b. The Joint Motion and Stipulation for Conditional
Collective Action Certification is denied to the extent
the parties seek approval of their current proposed
notice for the reasons set out in this Order and the R&R.
c. The parties are directed to meet and confer and submit an
amended proposed notice to their current proposed notice
-- consistent with this Order and the Report and
Recommendation -- on or before Feb. 26, 2020, for the
Court's consideration and approval.
5. accepting the Court as properly and timely filed the
Figueroa opt-in Plaintiffs' notices of filing consent
to join forms.
The Court rejects Plaintiffs' argument that the class action notice
should not include a clear notification of potential taxable costs
owed by the opt-in plaintiffs if Defendants prevail. Plaintiffs'
argument on attorney's fees, however, is well taken. Attorney's
fees for a prevailing defendant are only granted in "exceptional
circumstances." Given this and the parties' agreement on the
current proposed notice, the Court finds it unnecessary to include
a warning on attorney's fees. This conclusion is in line with the
R&R, which does not address including notice for attorney's fees.
Rather, the R&R recommends the parties amend the proposed notice
"so a potential opt-in is fully and clearly informed of his or her
potential liability to Defendants for costs if Defendants
prevail."
Hertz Corporation, a subsidiary of Hertz Global Holdings Inc., is
an American car rental company based in Estero, Florida that
operates 10,200 corporate and franchisee locations
internationally.[CC]
HOME POINT: Class Settlement in Norona Gets Prelim. Court Approval
------------------------------------------------------------------
Judge Haywood Gilliam Jr. of the U.S. District Court for the
Northern District of California granted preliminary approval of the
class action settlement in the labor complaint, BRANDON NORONA, and
LINDA CORBIN, individually and on behalf of all others similarly
situated, Plaintiffs, v. HOME POINT FINANCIAL CORPORATION,
Defendant, Case No. 4:17-cv-07205-HSG. (N.D. Cal.).
The Court, having found that each of the elements of Federal Rules
of Civil Procedure Rule 23(a) and 23(b)(3) are satisfied, for
settlement purposes only, certifies the following Settlement Class:
All persons currently or previously employed by Defendant in
California, including under its prior name, Maverick Funding
Corp., as originators, mortgage professionals, loan officers,
loan processors and other non-exempt employees in positions
that were eligible for commissions and/or non-discretionary
bonuses, the amounts of which are measured by or dependent
on hours worked, production, or efficiency, from December
19, 2013 through and including September 30, 2018, who have
not previously released their claims.
The Settlement Class does not include any person who was employed
solely by Stonegate Capital Corporation and/or Cross-Line Capital,
Inc. in California. Individuals employed as a non-exempt inside
loan agent, mortgage advisor, or mortgage loan officer at Stonegate
Capital Corporation and/or Cross-Line Capital, Inc. and
subsequently employed by Defendant while residing in California as
non-exempt employee, in positions that were eligible for
commissions and/or non-discretionary bonuses, the amounts of which
are measured by or dependent on hours worked, production, or
efficiency are included in the Settlement Class but only for the
period of time employed by Defendant starting June 1, 2017 through
and including September 30, 2018.
The Court certifies, for settlement purposes only, the following
Settlement Collective and finds for this limited purpose the
individuals in the Settlement Collective are similarly situated as
required by 28 U.S.C. Sec. 216(b):
All persons currently or previously employed by Defendant in
the United States while residing outside California,
including under Defendant's previous name, Maverick Funding
Corp., as non-exempt loan originators, mortgage
professionals, loan officers, loan processors and other
non-exempt employees in positions that were eligible for
commissions and/or non-discretionary bonuses, the amounts
of which are measured by or dependent on hours worked,
production, or efficiency, from December 19, 2014,
through and including September 30, 2018, who have not
previously released their claims.
The Court hereby certifies (a) the Settlement Class Members'
Released Claims asserted on behalf of Settlement Class Members, as
defined in the Settlement Agreement; and (b) the Settlement
Collective Members' Released Claims asserted on behalf of
Settlement Collective Members, as defined in the Settlement
Agreement.
The Court also approves the settlement of the California Private
Attorney General Act claims under the terms of the Agreement.
The Parties are ordered and directed to effectuate the Settlement
according to its terms. The Court orders the Settlement
Administrator to distribute the Settlement funds as approved and in
accordance with the provisions of the Settlement Agreement upon the
Effective Date, with the following modifications:
a. The Class Counsel Award is reduced from $749,000 to
$556,250.
b. Plaintiff Corbin's Service Award is reduced from $10,000
to $5,000.
A full-text copy of the District Court's November 21, 2019 Judgment
available at https://tinyurl.com/rswyffx from Leagle.com
Brandon Noroma, Plaintiff, represented by Reuben D. Nathan -
rnathan@nathanlawpractice.com - Nathan & Associates, APC & Matthew
Righetti - contact@righettilaw.com - Righetti Glugoski, P.C.
Home Point Financial Corporation, Defendant, represented by Rod M.
Fliegel - rfliegel@littler.com - Littler Mendelson P.C., Alison S.
Hightower - ahightower@littler.com - Littler Mendelson, P.C. & Gal
Gressel - ggressel@littler.com -
HOMEADVISOR: Contractors Join Class Action Lawsuit Accusing Fraud
-----------------------------------------------------------------
Chad Pradelli, writing for 6 ABC Action News, reports that you may
have seen the HomeAdvisor commercials. It's a digital marketplace
for home service professionals and remodelers.
6 ABC Action News investigative reporter Chad Pradelli has learned
hundreds of contractors are seeking to join a class-action lawsuit
accusing the company of fraud.
The lawsuit, filed by a Haverford, Pennsylvania law firm, claims
HomeAdvisor's business model is defective, deceptive and
fraudulent.
From roofers to carpenters, to electricians, HomeAdvisor has been a
tool to grow business for home improvement contractors.
The company charges contractors money for leads to potential
customers considering projects.
Rich Bevilacqua is a member and owns Ram Exteriors.
"I believe it was $128 per lead," he said. "Lead means basically
they send us a name and address, phone number and email and best of
luck."
He says, at one point, he was paying $3,000 a month in leads. But
here's the problem: While he did get some jobs through leads, he
believes roughly half were bogus.
"Either we could not reach anybody, even after calling immediately
after receiving notification," or he says when a homeowner did
answer, "They said that they never signed up for anything. They
didn't request any work done for any contractors."
Bevilacqua and 1,300 contractors nationwide are seeking to join a
class-action lawsuit.
It claims the company distributed bogus leads, blatantly
disregarded the lead budgets of contractors and adopted internal
procedures that discourage refunds.
It even accuses HomeAdvisor's sales representatives of " blatantly
lying to service professionals."
In court records, HomeAdvisor has denied wrongdoing and wants the
lawsuit dismissed.
Scott Ziegler signed up with HomeAdvisor when the company was known
as Service Magic in 2006. It has since merged with Angie's List.
"At the end of the day, they're really just there to take your
money," he said.
He says he too began to suspect dead leads.
But more troubling for Ziegler, he says HomeAdvisor began exceeding
his set monthly budget of $400 and billing him for a service called
instant bookings.
He says he was billed an estimated $8,000 over three months for
instant bookings. Furious, he says he called looking for a refund.
"I said can you please show me proof that I agree to these terms?
Show me where I clicked on new terms of agreement or where I signed
a paper or a voice recording of me agreeing to these terms. They
told me to get a subpoena," Zeigler said.
The Denver based HomeAdvisor had no comment on Bevilacqua's case,
citing the pending litigation. The company released this statement
regarding Ziegler:
"We are aware of the pro's ongoing concerns regarding his
membership with HomeAdvisor. While we disagree with his assessment
of the situation, we will continue to work with him towards a
resolution." [GN]
HORNELL BREWING: Class Action Claims Gummies Are Not All Natural
----------------------------------------------------------------
National Law Review reports that on February 11, 2020, Christopher
Silva, a New York resident, filed a proposed class action lawsuit
against Hornell Brewing Co. Inc., Arizona Beverages USA LLC,
Beverage Marketing USA, Inc., and Arizona Beverage Co.
("Defendants") over defendants' "all natural" gummy snacks.
The plaintiff claims that defendants' advertising and marketing
campaign is false, deceptive, and misleading because the gummies
contain several synthetic ingredients, such as ascorbic acid,
citric acid, gelatin, dextrose, glucose syrup, and modified food
starch. Silva seeks to represent a New York class and individual
classes for all 49 other states.
In the complaint, Silva cited to the United States Department of
Agriculture's Draft Guidance Decision Tree for Classification of
Materials as Synthetic or Nonsynthetic (natural). Per that
guidance, a substance is natural – as opposed to synthetic – if
(a) it is manufactured, produced, or extracted from a natural
source (i.e. naturally occurring mineral or biological matter); (b)
it has not undergone a chemical change (i.e. a process whereby a
substance is transformed into one or more other distinct
substances) so that it is chemically or structurally different than
how it naturally occurs in the source material; or (c) the chemical
change was created by a naturally occurring biological process such
as composting, fermentation, or enzymatic digestion or by heating
or burning biological matter.
Silva noted that while the synthetic ingredients are all listed on
the back of the package, reasonable consumers are not expected or
required to review the ingredients list on the back in order to
confirm or debunk defendants' prominent front-of-the-product
claims. The package in question includes the phrase "All Natural"
on the packaging behind the words, "Arizona" and "fruit snacks." We
will continue to monitor any developments. [GN]
HUDSON VALLEY: Zachman Sues Over Unlawful Collection of Fees
------------------------------------------------------------
Nichole Zachman, on behalf of herself and all others similarly
situated v. HUDSON VALLEY FEDERAL CREDIT UNION, Case No.
7:20-cv-01579 (S.D.N.Y., Feb. 21, 2020), seeks monetary damages,
restitution and declaratory relief from the Defendant arising from
the unfair and unconscionable assessment and collection of
"Overdraft Fees" or insufficient funds fees on accounts that were
not actually overdrawn.
According to the complaint, besides being deceptive, unfair and
unconscionable, these practices breach contract promises made in
the Defendant's adhesion contracts. In plain, clear, and simple
language, the checking account contract documents discussing OD
Fees promise that the Defendant will only charge OD Fees or NSF
Fees on transactions where there are insufficient funds to "cover"
them. As happened to the Plaintiff, however, the Defendant
improperly charges bank fees in just this circumstance.
The Plaintiff contends that she and other Hudson customers have
been injured by the Defendant's practices. On behalf of herself and
the putative class, the Plaintiff seeks damages, restitution and
injunctive relief for the Defendant's breach of contract, deceptive
practices, violation of the Electronic Funds Transfer Act.
Plaintiff Zachman is a natural person, who is a citizen of New
York, and who has a personal checking account with Hudson.
Defendant Hudson is a bank with approximately $10 billion in
assets, who issues debit cards to its checking account
customers.[BN]
The Plaintiff is represented by:
Michael R. Reese, Esq.
Sue J. Nam, Esq.
REESE LLP
100 West 93rd Street, 16th Floor
New York, NY 10025
Phone: (212) 643-0500
Facsimile: (212) 253-4272
Email: mreese@reesellp.com
snam@reesellp.com
–and–
Jeffrey Kaliel, Esq.
KALIEL PLLC
1875 Connecticut Avenue NW, 10th Floor
Washington, DC 20009
Phone: (202) 350-4783
Facsimile: (202) 871-8180
Email: jkaliel@kalielpllc.com
I.Q. DATA: Settlement in Zulku Case Wins Preliminary Approval
-------------------------------------------------------------
In the class action lawsuit styled as Sptime Zulku, the Plaintiff,
v. I.Q. Data International, Inc., the Defendant, Case No.
1:19−cv−03675 (N.D. Ill.), the Hon. Judge Mary M. Rowland
entered an order granting Parties' joint motion for preliminary
approval of their settlement agreement.
According to the docket entry made by the Clerk on Feb. 19, 2020, a
settlement fairness hearing is set for May 19, 2020 at 1:00 p.m.
IQ Data International is a debt collection agency.[CC]
IC SYSTEM: 9th Cir. Upholds Final Approval of Reid Class Settlement
-------------------------------------------------------------------
In the case, MICHAEL REID, on behalf of himself and all others
similarly situated Plaintiffs-Appellees, v. I.C. SYSTEM
INCORPORATED, Defendant-Appellant, Case No. 18-16618 (9th Cir.),
the U.S. Court of Appeals for the Ninth Circuit affirmed the
district court's order granting final approval of the agreement
settling the Reid class members' claims that I.C. System violated
the Telephone Consumer Protection Act of 1990.
At the heart of the dispute lies the question whether the district
court lacked the authority to grant final approval of the
settlement agreement after I.C. System purported to terminate it.
The district court had that authority under Federal Rule of Civil
Procedure 23 if it determined that the settlement agreement had not
in fact been terminated according to its terms. Moreover, Section
20.05 of the then-binding settlement agreement requires the court
to resolve any disputes between the parties. Thus, the district
court had authority under both the federal rules and the plain
terms of the settlement agreement to construe the agreement in
accordance with Arizona law and, if it concluded that the agreement
had not been validly terminated, to approve the settlement in the
manner it did.
I.C. System contends that Section 17.02 of the settlement agreement
gave I.C. System broad discretion to determine what constitutes a
Section 17.02 opt-out, and that the district court therefore
materially modified the settlement agreement by ordering the
parties to submit briefing as to the meaning of Section 17.02 of
the agreement and by requiring I.C. System to provide evidence to
support its determination that more than 100 class members had
opted out.
On review, the Ninth Circuit finds that the district court did not
err. The settlement agreement required the district court to apply
Arizona principles of contract interpretation. Under Arizona law,
the district court was required to interpret a contract according
to the parties' intent. By its terms, Section 17.02 grants I.C.
System discretion to terminate the settlement agreement only "if"
100 class members have, in fact, indicated an intent to opt out of
the settlement; it did not grant I.C. System discretion to decide
what constitutes an opt-out.
The district court therefore properly imposed on I.C. System the
burden to show that 100 class members had indicated an intent to
opt out, the Appellate Court opines. Under both Federal Rule of
Civil Procedure 23 and Section 20.05 of the settlement agreement,
the district court was authorized to interpret the settlement
agreement to determine whether 100 class members indicated an
intent to opt out. Thus, far from modifying the settlement
agreement, the district court's order requesting briefing was a
valid exercise of its authority to interpret the settlement
agreement.
I.C. System argues that 100 class members have indicated an intent
to opt out. Both parties agree that five class members opted out
of the settlement agreement via the procedures outlined in Section
12.01. I.C. System points to three additional groups of potential
opt-outs that it claims, in aggregate, constitute well over 100
opt-outs in the case. But I.C. System's math simply does not add
up. Even though "the communication" from a class member did not
necessarily have to be "in compliance with Section 12.01," the
communication still had to indicate an intent to "opt-out," meaning
that the relevant class members formed and expressed an intention
to remove themselves from the settlement.
The Ninth Circuit holds that the district court properly held that
I.C. System failed to show that more than 100 persons had
communicated such an intent. The mere fact that a person had
participated in another suit or made a demand for payment, without
more, does not satisfy I.C. System's burden to show that the person
indicated an intent to opt-out of this settlement. And to the
extent that such an intent to opt out arguably might be inferred
with respect to those class members who filed a lawsuit or made a
pre-litigation demand after notice of the settlement was published,
the district court correctly found that only 15 such persons did
so. Furthermore, I.C. System contends that Reid class members'
participation in two additional class actions in the Eastern
District of New York indicates their intent to opt out of
settlement. However, the district court also correctly found that
those two lawsuits have no relationship to this one.
For these reasons, the Ninth Circuit upheld the trial court's final
approval of the Reid class settlement. Costs will be awarded to the
Plaintiffs-Appellees.
A full-text copy of the Ninth Circuit's Dec. 24, 2019 Memorandum is
available at https://is.gd/UDLaqC from Leagle.com.
ILLINOIS: Court Grants Prelim. Injunction in Monroe Prisoners Suit
------------------------------------------------------------------
The U.S. District Court for the Southern District of Illinois
issued a Memorandum and Order granting Plaintiffs' Motion for
Preliminary Injunction in the case captioned JANIAH MONROE, MARILYN
MELENDEZ, EBONY STAMPS, LYDIA HELENA VISION, SORA KUYKENDALL, and
SASHA REED, Plaintiffs, v. JOHN BALDWIN, STEVE MEEKS, and MELVIN
HINTON, Defendants. Case No. 18-CV-00156-NJR-MAB, (S.D. Ill.).
Janiah Monroe, Marilyn Melendez, Ebony Stamps, Lydia Helena Vision,
Sora Kuykendall, and Sasha Reed are transgender women in the
custody of the Illinois Department of Corrections (IDOC). They
filed the putative class action under 42 U.S.C. Section 1983,
alleging IDOC provides transgender inmates inadequate treatment for
gender dysphoria, in violation of the Eighth Amendment. Plaintiffs
commenced the lawsuit against the IDOC Director, Chief of Health
Services, and Mental Health Supervisor in their official
capacities.
Plaintiffs seek a preliminary injunction directing Defendants to:
(1) cease the policy and practice of allowing the Transgender
Committee to make the medical decisions regarding gender dysphoria
resulting in denials and delays of treatment; (2) cease the policy
and practice of denying and delaying hormone therapy for reasons
that are not recognized as contraindications to treatment; (3)
cease IDOC's policy and practice of refusing to evaluate and
provide surgery to treat gender dysphoria; and (4) cease the policy
and practice of depriving gender dysphoric prisoners of medically
necessary social transition, including by mechanically assigning
housing based on genitalia.
In the present case, Plaintiffs allege IDOC is deliberately
indifferent in its treatment of transgender inmates. Prison
officials violate the Eighth Amendment's proscription against cruel
and unusual punishment when they display deliberate indifference to
serious medical needs of prisoners.
The Court examines (1) whether a plaintiff suffered from an
objectively serious medical condition, and (2) whether the
defendants were deliberately indifferent to that condition.
The parties agree that gender dysphoria is an objectively serious
medical condition. The parties differ, however, on what
constitutes constitutionally adequate treatment. Plaintiffs
contend IDOC puts transgender prisoners' health and lives at risk
by delaying the evaluation and treatment of gender dysphoria;
permitting the Transgender Committee to make medical decisions for
transgender inmates; improperly administering hormone treatment;
denying transgender inmates the ability to socially transition; and
failing to provide gender-affirming surgery to inmates.
The linchpin of Plaintiffs' arguments seems to be that IDOC does
not comport with World Professional Association for Transgender
Health (WPATH), which is a professional association dedicated to
understanding and treating gender dysphoria, Standards of Care.
Plaintiffs' experts, Dr. Randi Ettner and Dr. Vin Tangpricha, both
relied on the Standards of Care and the Endocrine Society
Guidelines to conclude that IDOC provides inadequate treatment to
transgender inmates.
But Defendants argue the Standards of Care delineate the highest
level of care, rather than the constitutionally adequate care IDOC
must provide. After all, it is well-settled that prisoners are not
entitled to demand specific care or the best care possible. Along
the same lines, Defendants assert that the Court should discount
the opinions of Dr. Ettner and Dr. Tangpricha as biased and
unreliable.
For purposes of a preliminary injunction, Plaintiffs must
demonstrate a likelihood of success on the merits, i.e., that they
have a better than negligible chance of proving their claims.
Because the parties agree that gender dysphoria constitutes an
objectively serious medical condition, Plaintiffs must show IDOC
consciously disregarded a known and substantial risk of harm
associated with gender dysphoria.
IDOC is well-aware that transgender inmates are at a high risk of
suffering from mental health issues and resorting to self-harm.
Plaintiffs' grievances and medical records document a pattern of
genital mutilation and suicide attempts among the transgender
population Unfortunately, a transgender inmate successfully
committed suicide while in IDOC's care in May 2015.
Despite these known risks, there is evidence that IDOC denies and
delays the diagnosis and treatment of gender dysphoria without a
medical basis or penological purpose. For instance, Monroe was not
diagnosed with gender dysphoria until four years after she first
sought treatment from IDOC, Melendez had to wait three years to
receive a diagnosis and treatment, and Kuykendall and Reed waited
almost two years.
There is also evidence that IDOC prevents Plaintiffs' social
transitions by misgendering inmates and denying them access to
female commissary items. Social transition is an important
component of medical treatment and misgendering someone with gender
dysphoria is traumatic.
Here, Plaintiffs have repeatedly requested access to commissary
items like lotion, makeup, hair brushes, and female undergarments.
IDOC often denies or fails to respond to these requests. At best,
IDOC provides a bra to transgender inmates residing at male
facilities. Also, Plaintiffs testified IDOC staff members call
transgender inmates him, dude, it and he-she. IDOC's denial and/or
delay of necessary social transition items has exacerbated
Plaintiffs' deteriorating mental states.
Amidst these, Plaintiffs have met their burden of showing a
likelihood of success on the merits for purposes of a preliminary
injunction, the Court opines.
Irreparable Harm and Inadequate Remedy at Law
The party moving for a preliminary injunction must demonstrate he
or she will likely suffer irreparable harm absent the injunctive
relief. Here, Plaintiffs testified that the lack of proper
treatment for gender dysphoria has caused them serious mental
health issues.
In this case, there is no doubt that Plaintiffs face irreparable
harms that cannot be compensated by monetary damages.
Balance of Harms and Public Interest
Once a moving party has met its burden of establishing the
threshold requirements for a preliminary injunction, the court must
balance the harms faced by both parties and the public as a whole.
The balance of harm substantially weighs in favor of granting
injunctive relief. Plaintiffs continue to suffer physical and
mental anguish on a daily basis and are at risk of self-mutilation
and death. In contrast, Defendants have not identified any harm
they will suffer if an injunction were granted.
Plaintiffs have thus met their burden in moving for a preliminary
injunction, the Court opines.
Ongoing Violations
Defendants argue Plaintiffs are not entitled to injunctive relief
because they cite medical records from several years ago and do not
put forth recent evidence to establish an ongoing violation. But
Plaintiffs have provided plenty of evidence that IDOC continuously
fails to provide adequate treatment to inmates with gender
dysphoria. Melendez stated her hormone dosage is ineffective, Reed
and Melendez testified they do not have access to female commissary
items that would facilitate their social transition, the
Transgender Committee has never evaluated a single inmate for
surgical intervention, and the medical records suggest IDOC fails
to adequately monitor inmates' hormones.
In sum, the Court GRANTS Plaintiffs' request for preliminary
injunctive relief. The Court orders Defendants to immediately:
1. cease the policy and practice of allowing the Transgender
Committee to make the medical decisions regarding gender dysphoria
and develop a policy to ensure that decisions about treatment for
gender dysphoria are made by medical professionals who are
qualified to treat gender dysphoria.
2. cease the policy and practice of denying and delaying hormone
therapy for reasons that are not recognized as contraindications to
treatment, ensure timely hormone therapy is provided when
necessary, and perform routine monitoring of hormone levels, and
3. cease the policy and practice of depriving gender dysphoric
prisoners of medically necessary social transition, including by
mechanically assigning housing based on genitalia and/or physical
size or appearance.
A full-text copy of the District Court's December 19, 2019
Memorandum and Order is available at https://tinyurl.com/vud6p5x
from Leagle.com
Janiah Monroe, Marilyn Melendez, Lydia Helena Vision, Sora
Kuykendall & Sasha Reed, Plaintiffs, represented by John A. Knight
- jknight@aclu-il.org - Roger Baldwin Foundation of ACLU, Inc.,
Austin B. Stephenson - austin.stephenson@kirkland.com - Kirkland &
Ellis LLP, Brent P. Ray , Kirkland & Ellis LLP, 300 N La Salle Dr,
Chicago, IL 60654-3406, pro hac vice, Camille E. Bennett-
cbennett@aclu−il.org - Roger Baldwin Foundation of ACLU, Inc.,
Carolyn M. Wald - cwald@aclu-il.org - Roger Baldwin Foundation of
ACLU, Inc., Catherine L. Fitzpatrick -
catherine.fitzpatrick@kirkland.com - Kirkland & Ellis LLP, Erica B.
Zolner - erica.zolner@kirkland.com - Kirkland & Ellis LLP,
Ghirlandi Guidetti , Roger Baldwin Foundation of ACLU, Inc., 180 N
Michigan Ave Suite 2300 Chicago, IL 60601-1287, Megan M. New -
megan.new@kirkland.com - Kirkland & Ellis LLP, Samantha G. Rose -
sam.rose@kirkland.com - Kirkland & Ellis LLP, Sarah Jane Hunt ,
Kennedy Hunt P.C., 112 Front Street, Alton, IL 62002S, Sydney L.
Schneider - sydney.schneider@kirkland.com - Kirkland & Ellis LLP,
Thomas E. Kennedy, III , Law Offices of Thomas E. Kennedy, III,
L.C., 303 State St., Alton, IL 62002 & Jordan M. Heinz -
jordan.heinz@kirkland.com - Kirkland & Ellis LLP.
Ebony Stamps, Plaintiff, represented by John A. Knight , Roger
Baldwin Foundation of ACLU, Inc., Austin B. Stephenson , Kirkland &
Ellis LLP, Brent P. Ray , Kirkland & Ellis LLP, pro hac vice,
Carolyn M. Wald , Roger Baldwin Foundation of ACLU, Inc., Catherine
L. Fitzpatrick , Kirkland & Ellis LLP, Erica B. Zolner , Kirkland &
Ellis LLP, Ghirlandi Guidetti , Roger Baldwin Foundation of ACLU,
Inc., Megan M. New , Kirkland & Ellis LLP, Samantha G. Rose ,
Kirkland & Ellis LLP, Sarah Jane Hunt , Kennedy Hunt P.C., Sydney
L. Schneider , Kirkland & Ellis LLP, Thomas E. Kennedy, III , Law
Offices of Thomas E. Kennedy, III, L.C. & Jordan M. Heinz ,
Kirkland & Ellis LLP.
John Baldwin, Steve Meeks & Melvin Hinton, Defendants, represented
by Lisa A. Cook , Office of the Attorney General & Christopher L.
Higgerson , Illinois Attorney General's Office.
ILLINOIS: Court Narrows Claims in Wallace Prisoners Suit
--------------------------------------------------------
The United States District Court for the Southern District of
Illinois issued a Memorandum and Order granting in part and denying
in part Defendants' Motion to Dismiss the case captioned CORRIE
WALLACE and RAFAEL E. SANTOS, JR., Plaintiffs, v. JOHN BALDWIN,
KIMBERLY BUTLER, JACQUELINE LASHBROOK, SALVADOR GODINEZ, ALEX
JONES, JEFFERY HUTCHINSON, RICHARD HARRINGTON, and GLADYSE TAYLOR,
Defendants. Case No. 3:18-CV-1513-NJR-MAB, (S.D. Ill.).
Plaintiffs Corrie Wallace and Rafael Santos, Jr. are inmates in the
Illinois Department of Corrections (IDOC) who filed the action
pursuant to 42 U.S.C. Section 1983 for deprivations of their
constitutional rights at Menard Correctional Center. Pursuant to a
Second Amended Complaint, the case was transformed into a putative
class action regarding the cell conditions in the North I and North
II cell houses at Menard. Plaintiffs allege the cells in the North
I and North II cell houses are tiny. Plaintiffs further allege
that the ventilation system in the North I and North II cell houses
is seriously dysfunctional. According to Plaintiffs,
double-celling inmates in such cramped quarters with poor
ventilation is objectively unconstitutional and leads to an
increased risk of inmate violence.
At the time the Second Amended Complaint was filed, Jacqueline
Lashbrook was the warden at Menard, and John Baldwin was the
Director of the IDOC. They were named as Defendants, as were
various former wardens (Alex Jones, Jeffery Hutchinson, Kimberly
Butler, and Richard Harrington) and former Directors (Gladyse
Taylor and Salvador Godinez). Plaintiffs allege that each
Defendant knew about the unconstitutional conditions posed by the
tiny cell size and poor ventilation because the conditions are
obvious and readily apparent.
Based on the allegations, the Court understands Plaintiffs are
suing all Defendants in their individual and official capacities,
and, as a remedy, seek injunctive relief and monetary damages.
In their motion to dismiss, Defendants make two arguments. The
first argument is that Plaintiffs failed to state a claim because
they did not provide fair notice of what the claim against each
Defendant is and the grounds upon which it rests. The second
argument is that the official capacity claims must be dismissed
because the Eleventh Amendment bars official capacity claims for
monetary damages, and the only officials who can be properly sued
in their official capacity for injunctive relief are the current
Warden of Menard Correctional Center and Director of Illinois
Department of Corrections.
The Court disagrees with the Defendants argument that Plaintiffs'
claims must be dismissed because they did not specifically allege
what acts or omissions each Defendant is accused of committing.
The Court notes that Plaintiffs are not required to include
specific facts in their complaint. Rather, to satisfy the notice
pleading standard of Rule 8(a)(2), Plaintiffs just have to give
enough details about the subject-matter of the case to present a
story that holds together and to provide Defendants fair notice of
what the claim is and the grounds upon which it rests.
In the Second Amended Complaint, Plaintiffs allege they were
subjected to unconstitutional conditions of confinement by being
double-celled in tiny cells with poor ventilation. They further
claim the named Defendants knew about these illegal conditions
because they were obvious and had been well-documented in
grievances, lawsuits, and external publications. Plaintiffs allege
that, given Defendants' positions of power, they had the authority
and the opportunity to prevent inmates from being harmed but failed
to act.
These allegations, while general, are sufficient for the purposes
of pleading, the Court holds.
Defendants next argue that Plaintiffs' claims for monetary relief
against Defendants in their official capacities are barred by the
Eleventh Amendment. Plaintiffs, in their response brief, concede
this point and chalk up any confusion on the matter to inartful
pleading.
Therefore, to the extent that Plaintiffs' Second Amended Complaint
may be construed as stating claims for monetary damages against
Defendants in their official capacities, those claims are
dismissed, the Court states.
As for Plaintiffs' claims for injunctive relief against Defendants
in their official capacities, Defendants argue that these claims
should proceed against only the current Warden at Menard and the
current Director of the IDOC, which Plaintiffs do not dispute.
The Court agrees the current Warden of Menard and the current
Director of the IDOC, in their official capacities, are the proper
defendants to Plaintiffs' claims for injunctive relief because they
are the officials who would be responsible for ensuring that any
injunctive relief ordered by the Court is carried out.
The official capacity claims against all other Defendants can be
dismissed because they are redundant and because there is no
indication these former officials could effectuate any injunctive
relief.
Accordingly, the Court rules that Defendants' motion to dismiss is
GRANTED in part and DENIED in part. It is DENIED as to Defendants'
argument that Plaintiffs failed to state a claim upon which relief
can be granted. It
is GRANTED with respect to Plaintiffs' official capacity claims.
The matter shall now proceed on the following claims against the
following Defendants:
Count 1: Eighth Amendment claim for unconstitutional
conditions of confinement caused by double-celling inmates in the
North I and North II cell houses against the current warden of
Menard (Frank Lawrence, as of the entry of the Order) and the
current Director of the IDOC (Rob Jeffreys, as of the entry of this
Order), in their official capacities for injunctive relief.
Count 2: Eighth Amendment claim for unconstitutional
conditions of confinement caused by the poor ventilation system in
the North I and North II cell houses against the current warden of
Menard (Frank Lawrence, as of the entry of this Order) and the
current Director of the IDOC (Rob Jeffreys, as of the entry of this
Order), in their official capacities for injunctive relief.
Count 3: Eighth Amendment claim for unconstitutional
conditions of confinement caused by double-celling inmates and the
poor ventilation system in the North I and North II cell houses
against Defendants John Baldwin and Jacqueline Lashbrook, in their
individual capacities for monetary damages.
Count 4: Eighth Amendment claim for unconstitutional
conditions of confinement caused by double-celling inmates and the
poor ventilation system in the North I and North II cell houses
against Defendants Kimberly Butler Salvador Godinez, Richard
Harrington, Jeffery Hutchinson, Alex Jones, and Gladyse Taylor, in
their individual capacities for monetary damages.
A full-text copy of the District Court's November 14, 2019
Memorandum and Order is available at https://tinyurl.com/vaxut3f
from Leagle.com
Corrie Wallace & Rafael E. Santos, Jr., Plaintiffs, represented by
Christian G. Montroy - cmontroy@montroylaw.com - Montroy Law
Offices, LLC.
John Baldwin, Kimberly Butler, Jacqueline Lashbrook, Salvador
Godinez, Alex Jones, Jeffery Hutchinson, Richard Harrington &
Gladyse Taylor, Defendants, represented by Xinyi Wei , Illinois
Attorney General's Office, Clayton J. Ankney , Illinois Attorney
General's Office & Jeremy C. Tyrrell , Illinois Attorney General's
Office.
INTELENET AMERICA: Conditional Cert. of Collective Class Granted
----------------------------------------------------------------
In the class action lawsuit styled as JASMINE CLARK et al., v.
INTELENET AMERICA, LLC (d/b/a Intelenet Global Services), Case No.
2:18-cv-14052-MCA-JAD (D.N.J.), the Hon. Judge Madeline Cox Arleo
entered an order on Feb. 19, 2020:
1. granting conditional certification of a collective class;
and
2. directing parties to meet and confer regarding the method,
timing, and content of any notice to potential members of
the collective, and submit agreed-upon proposed forms
regarding same, to the Honorable Joseph A. Dickson within
15 days of date of this Order.
Intelenet was founded in 2003. The company's line of business
includes providing various business services.[CC]
JACOBS ENGINEERING: Roane County Resident's Class Suit Ongoing
--------------------------------------------------------------
Jacobs Engineering Group Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 4, 2020,
for the quarterly period ended December 27, 2019, that the company
and Tennessee Valley Authority ("TVA") continus to defend a
putative class action suit initiated by a resident of Roane
County.
On December 22, 2008, a coal fly ash pond at the Kingston Power
Plant of the Tennessee Valley Authority ("TVA") was breached,
releasing fly ash waste into the Emory River and surrounding
community.
In February 2009, TVA awarded a contract to the Company to provide
project management services associated with the clean-up. All
remediation and dredging were completed in August 2013 by other
contractors under direct contracts with TVA. The Company did not
perform the remediation, and its scope was limited to program
management services.
Certain employees of the contractors performing the cleanup work on
the project filed lawsuits against the Company beginning in August
2013, alleging they were injured due to the Company's failure to
protect the plaintiffs from exposure to fly ash, and asserting
related personal injuries. There are currently six separate cases
pending against the Company.
The primary case, Greg Adkisson, et al. v. Jacobs Engineering Group
Inc., case No. 3:13-CV-505-TAV-HBG, filed in the U.S. District
Court for the Eastern District of Tennessee, consists of 10
consolidated cases. This case and the related cases involve several
hundred plaintiffs that have been filed against the Company by
employees of the contractors that completed the remediation and
dredging work.
The cases are at various stages of litigation, and several of the
cases are currently stayed pending resolution of other cases.
Separately, in May 2019, Roane County and the cities of King and
Herriman filed a claim against TVA and the Company alleging that
they misled the public about risks associated with the released fly
ash.
In December 2019, the court granted the Company's motion to dismiss
the complaint.
This matter is scheduled for trial in 2021.
In addition, in November 2019, a resident of Roane County filed a
putative class action against TVA and the Company alleging they
failed to adequately warn local residents about risks associated
with the released fly ash.
There has been no finding of liability against the Company or that
any of the alleged illnesses are the result of exposure to fly ash
in any of the above matters.
Jacobs Engineering said, "The Company disputes the claims asserted
in all of the above matters and is vigorously defending these
claims. The Company does not expect the resolution of these matters
to have a material adverse effect on the Company's business,
financial condition, results of operations or cash flows."
No further updates were provided in the Company's SEC report.
Headquartered in Dallas, Texas, Jacobs Engineering Group Inc., is a
global provider of technical, professional, and scientific
services, including engineering, architecture, construction,
operations and maintenance.
KEVIN ISON: Final Approval of Class Action Settlement Granted
-------------------------------------------------------------
In the class action lawsuit styled as BRANDON SIMON, et al. v.
KEVIN J. ISON DMD PSC, d/b/a ORTHODONTIC SPECIALISTS, et al. Case
No. 1:18-cv-00458-KLL (S.D. Ohio), the Court entered an order on
Feb. 18, 2020:
1. granting final approval of the class action settlement;
2. authorizing Parties to distribute checks for Individual
Settlement amounts to all Participating Settlement Class
Members representing their share of the Settlement Fund
for payment of overtime and liquidated damages as set
forth in the Settlement Agreement;
3. approving Class Representative payments to be paid to
Plaintiffs Brandon Simon and Lainey Hollingsworth in the
amount of $3,500.00 each for their services to the Class;
4. awarding Attorneys' fees in the amount of $55,000.000 for
legal services performed in prosecuting and settling the
claims in this action, inclusive of costs in providing
notice and administrative services, to Plaintiffs' Class
Counsel;
5. releasing all claims as specified in the Settlement
Agreement by all Participating Settlement Class Members
who did not properly and timely opt-out of the settlement;
and
6. dismissing with prejudice action against Defendant, but with
the Court's continued jurisdiction over the construction,
interpretation, implementation and enforcement of the
Parties' settlement and over the administration and
distribution of the settlement fund.[CC]
LINCOLN TRANSPO: Delgado Remanded to L.A. County Superior Court
---------------------------------------------------------------
In the case, CARLOS DELGADO, individually and on behalf of all
others similarly situated, Plaintiff, v. LINCOLN TRANSPORTATION
SERVICES INC., et al., Defendants, Case No. CV 19-09449-CJC (SKx)
(C.D. Cal.), Judge Cormac J. Carney of the U.S. District Court for
the Central District of California granted the Plaintiff's
unopposed motion to remand and for attorney fees.
Carlos Delgado filed the putative wage-and-hour class action
against Defendants Lincoln, Navigator Transport Inc., Jose
Cardenas, Elizabeth Cardenas, Octavio Beltran, and unnamed Does in
Los Angeles County Superior Court on March 9, 2018. In the
operative Second Amended Complaint ("SAC"), the Plaintiff alleges
that he was previously employed as a truck driver for Lincoln and
Navigator and compensated on a piece-rate basis. The Defendants
allegedly operate a pickup and delivery business with locations
across California.
Jose, Elizabeth, and Beltran are named as owners, directors,
officers, managers, and/or agents of Lincoln and Navigator. The
Defendants allegedly committed numerous wage-and-hour violations
during the Plaintiff's employment. Specifically, Defendants
allegedly made unlawful wage deductions, failed to reimburse for
business expenses, failed to pay minimum wage, failed to provide
meal and rest periods, failed to compensate for meal and rest
periods, failed to pay earned wages after separation, and failed to
provide accurate itemized wage statements.
Based on these allegations, the Plaintiff brought suit on behalf of
himself and similarly situated current and former employees. Under
the SAC, the Plaintiff asserts 11 causes of action for violations
of the California Labor Code and California Industrial Welfare
Commission wage orders [Claims One through Eight], for violations
of California's Unfair Competition Law [Claim Nine], and for civil
penalties under California's Private Attorneys General Act [Claims
Ten and Eleven].
In November 2018, Lincoln Defendants filed an Answer to the SAC.
The case was scheduled to proceed to a jury trial in state court in
November 2019. On Nov. 1, 2019 -- three days before the state
court trial -- Lincoln Defendants filed their notice of removal.
They assert that the District Court has federal question
jurisdiction over the case based on a December 2018 order from the
Federal Motor Carrier Safety Administration ("FMCSA").
The Plaintiff filed the instant motion to remand on Dec. 4, 2019.
The Plaintiff first challenges removal as untimely and then argues
that the District Court lacks subject matter jurisdiction over the
case. Lincoln Defendants have failed to file an opposition or
notice of non-opposition to the Plaintiff's motion.
Judge Carney holds that the motion to remand timeline is triggered
when the Defendant files the notice of removal, and by its own
terms, Rule 6(d) applies only when a party is required to act
within a prescribed period after service, not after filing.
Accordingly, the District Court must deny the Plaintiff's motion to
remand based on any procedural deficiencies.
Next, jurisdictional defects need not be raised within 30 days of
removal. Lincoln Defendants assert that the District Court has
subject matter jurisdiction because the Plaintiff's claims are
preempted by the FMCSA Order.
The District Court holds that Lincoln Defendants have not
established complete preemption. In the notice of removal, they
invoke the District Court's jurisdiction in vague terms, asserting
that drivers such as the Plaintiff are not subject to state wage
and hour and other state laws and regulations which form the basis
of the Plaintiff's complaint and that FMCSA has determined that
these laws are preempted by federal law. They have not specified
which of Plaintiff's claims are barred by the FMCSA Order or why
these claims are completely preempted. Lincoln Defendants have
also failed to address issues raised in Plaintiff's motion to
remand. For these reasons, the District Court grants the
Plaintiff's motion to remand.
The Plaintiff requests an award of attorney fees for filing the
motion. Based on Lincoln Defendants' violations of Local Rules,
the District Court grants the Plaintiff's motion for attorney fees.
The Plaintiff requests $3,540 in fees, representing 7.05 hours of
work at $800 per hour for the lead counsel Stephen Glick and $450
per hour for his associate attorney. The District finds that the
hourly rates and the time spent are reasonable, and will award the
requested amount.
In sum, Judge Carney granted the Plaintiff's motion to remand and
for attorney fees. The Plaintiff is awarded $3,540 in attorney
fees. The case is remanded to Los Angeles County Superior Court.
A full-text copy of the District Court's Dec. 27, 2019 Order is
available at https://is.gd/jyxsLg from Leagle.com.
Carlos Delgado, individually and on behalf of all current and
former aggrieved employees and the general public of California,
Plaintiff, represented by Michael Anthony Jenkins --
ajenkins@glicklegal.com -- Law Offices of Stephen Glick & Stephen
Glick -- sglick@glicklegal.com -- Stephen Glick Law Offices.
Lincoln Transportation Services, Inc., a California Corp, Jose F.
Cardenas & Elizabeth Cardenas, Defendants, represented by Albert
Douglas Mastroianni -- mastroiannilaw@yahoo.com -- Albert
Mastroianni & Edward T. Muramoto, Edward Muramoto Law Offices.
Doe, inclusive, Defendant, represented by Albert Douglas
Mastroianni, Albert Mastroianni.
LOGMEIN INC: Faruqi & Faruqi Files Class Action Lawsuit
-------------------------------------------------------
Faruqi & Faruqi, LLP has filed a class action lawsuit in the United
States District Court for the District of Delaware, Case No.
1:20-cv-00124-LPS on behalf of shareholders of LogMeIn, Inc.
(NASDAQ:LOGM) who have been harmed by LogMeIn's and its board of
directors' (the "Board") alleged violations of Sections 14(a) and
20(a) of the Securities Exchange Act of 1934 (the "Exchange Act")
in connection with the proposed merger of the Company with
Francisco Partners and Evergreen Coast Capital Corporation
("Evergreen"), the private equity affiliate of Elliot Management
Corporation (the "Proposed Transaction")
On December 17, 2019, the Board caused the Company to enter into an
agreement and plan of merger under which LogMeIn shareholders stand
to receive $86.05 in cash for each share of LogMeIn stock they
own.
The complaint alleges that the Proxy filed with the Securities and
Exchange Commission violates Sections 14(a) and 20(a) of the
Exchange Act because it provides materially incomplete and
misleading information about the Company and the Proposed
Transaction, including information concerning the Company's
financial projections and analysis, on which the Board relied to
recommend the Proposed Transaction as fair to LogMeIn
shareholders.
If you wish to obtain information concerning this action, you can
do so by clicking here: www.faruqilaw.com/LOGM.
Take Action
Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with
extensive experience in prosecuting class actions, and significant
expertise in actions involving corporate fraud. Faruqi & Faruqi,
LLP, was founded in 1995 and the firm maintains its principal
office in New York City, with offices in Delaware, California,
Georgia, and Pennsylvania.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from the date of this notice. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. If you wish to discuss this action,
or have any questions concerning this notice or your rights or
interests, please contact:
Nadeem Faruqi, Esq.
James M. Wilson, Jr., Esq.
FARUQI & FARUQI, LLP
685 3rd Avenue, 26th Floor
New York, NY 10017
Telephone: (877) 247-4292 or (212) 983-9330
E-mail: nfaruqi@faruqilaw.com
jwilson@faruqilaw.com
[GN]
LOWE'S COMPANIES: Martin Seeks OT Pay for Customer Service Reps
---------------------------------------------------------------
The case, MISTY MARTIN, individually and on behalf of all other
similarly situated individuals, Plaintiff v. LOWE'S COMPANIES,
INC., Defendant, Case No. 5:20-cv-00015 (W.D.N.C., February 14,
2020), arises from Defendant's alleged willful violations of the
Fair Labor Standards Act and the North Carolina Wage and Hour Act.
Plaintiff was employed by Defendant as a customer service
representative during the past three years at its brick-and-mortar
call center in Wilkesboro, North Carolina.
Plaintiff claims that Defendant does not begin compensating CSRs
until they have started up their computers and logged into all of
the necessary computer applications, in which process will took
substantial time on a daily basis ranging from 9 to 17 minutes per
day and extending even longer on days when Plaintiff and other CSRs
experience technical issues related to Defendant's computers,
software or programs.
Moreover, Plaintiff asserts that Defendant fails to pay Plaintiff
and other CSRs an amount equal to 9-34 minutes of compensable time
per shift and for other off-the-clock time spent performing work
duties during their unpaid 60-minute lunch break.
Lowe's Companies, Inc. is an American retail company specializing
in home improvement. [BN]
The Plaintiff is represented by:
James J. Mills, Esq.
BURNS, DAY & PRESNELL, P.A.
2626 Glenwood Avenue, Suite 560
Raleigh, NC 27608
Tel: (919)782-1441
Email: jmills@bdppa.com
- and -
Kevin J. Stoops, Esq.
Charles R. Ash, Esq.
SOMMERS SCHWARTZ, P.C.
One Towne Square, 17th Floor
Southfield, MI 48076
Tel: (248)355-0300
Emails: kstoops@sommerspc.com
crash@sommerspc.com
LUCKIN COFFEE: Pomerantz Law Files Class Action Lawsuit
-------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against Luckin Coffee Inc. (NASDAQ: LK) and certain of its
officers. The class action, filed in United States District Court
for the Southern District of New York, and indexed under
20-cv-01293, is on behalf of a class consisting of all persons and
entities other than Defendants who purchased or otherwise acquired
Luckin securities between November 13, 2019 and January 31, 2020,
both dates inclusive (the "Class Period"), seeking to recover
damages caused by Defendants' violations of the federal securities
laws and to pursue remedies under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5
promulgated thereunder, against the Company and certain of its top
officials.
If you are a shareholder who purchased Luckin securities during the
class period, you have until April 13, 2020, to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss
this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW),
toll-free, Ext. 9980. Those who inquire by e-mail are encouraged to
include their mailing address, telephone number, and the number of
shares purchased.
Luckin engages in the retail sale of freshly brewed drinks, and
pre-made food and beverage items in China, offering freshly brewed
drinks, including freshly brewed coffee and non-coffee drinks, and
food and beverage items, such as light meals. The Company operates
pick-up stores, relax stores, and delivery kitchens under the
Luckin brand, as well as Luckin mobile app, Weixin mini-program,
and other third-party platforms that cover the customer purchase
process.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) certain of Luckin's financial
performance metrics, including per-store per-day sales, net selling
price per item, advertising expenses, and revenue contribution from
"other products" were inflated; (ii) Luckin's financial results
thus overstated the Company's financial health and were
consequently unreliable; and (iii) as a result, the Company's
public statements were materially false and misleading at all
relevant times.
On January 31, 2020, Muddy Waters Research published an anonymous
report alleging that Luckin had fabricated certain of the Company's
financial performance metrics, beginning in the third quarter of
2019 ("3Q19") (the "Muddy Waters Report"). The Muddy Waters Report
purported to cite "smoking gun evidence," including, inter alia,
thousands of hours of store video, thousands of customer receipts,
and diligent monitoring of the Company's mobile application
metrics, which allegedly showed that, since 3Q19, Luckin had
inflated its per-store per-day sales figures, its net selling price
per item, its advertising expenses, and its revenue contribution
from "other products."
On this news, Luckin's American depositary share ("ADS") price fell
$3.91 per share, or 10.74%, to close at $32.49 per share on January
31, 2020.
As a result of Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of Luckin' securities,
Plaintiff and other Class members have suffered significant losses
and damages.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris, is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com
Contact:
Robert S. Willoughby, Esq.
Pomerantz LLP
E-mail: rswilloughby@pomlaw.com
[GN]
MDL 2804: Hestrup v. Mallinckrodt Over Opioid Drugs Consolidated
----------------------------------------------------------------
The case captioned as Eric Hestrup, individually and on behalf of
all others similarly situated v. Mallinckrodt PLC; Mallinckrodt
LLC; Mallinckrodt Enterprises LLC; Mallinckrodt Brand
Pharmaceuticals Inc.; Teva Pharmaceuticals Industries Ltd.; Teva
Pharmeceuticals USA, Inc.; Cephalon Inc.; Johnson & Johnson;
Janssen Pharmaceuticals Inc.; Endo Pharmaceuticals Inc.; Actavis
plc; Actavis Inc.; Watson Pharmaceuticals, Inc.; Watson
Laboratories Inc.; McKesson Corporation; Cardinal Health Inc.; and
AmerisourceBergen Corporation, Case No. 1:19-cv-08453 (Filed Dec.
27, 2019), was transferred from the U.S. District Court for the
Northern District of Illinois to the U.S. District Court for the
Northern District of Ohio (Cleveland) on Jan. 24, 2020.
The Northern District of Ohio Court Clerk assigned Case No.
1:20-op-45040-DAP to the proceeding. The case is assigned to the
Hon. Judge Dan Aaron Polster. The lead case is Case No.
1:17-md-02804-DAP.
The lawsuit seeks to recompense for compensatory damages, emotional
distress; loss of enjoyment of life; lost earning capacity and loss
of income; loss of filial consortium; loss of spousal consortium;
anguish; sorrow; solace, including companionship, comfort,
guidance, kindly offices, advise, services, protection, care, and
assistance; services for medical care, including any necessary
rehabilitation; and/or funeral and burial expenses.
The Defendants manufacture, market, sell, and distribute
prescription opioids, which are highly addictive narcotic
painkillers. The Plaintiff contends that the Defendants have
engaged in a cunning and deceptive marketing scheme to encourage
doctors and patients to use opioids to treat chronic pain. In doing
so, the Plaintiff says, the Defendants falsely minimized the risks
of opioids, overstated their benefits, and generated far more
opioid prescriptions than there should have been.
The opioid epidemic is the direct result of the Defendants'
deliberately crafted, well-funded campaign of deception. For years,
they misrepresented the risks posed by the opioids they manufacture
and sell, misleading susceptible prescribers and vulnerable patient
populations. As families and communities suffered from the scourge
of opioid abuse, the Defendants earned billions in profits as a
direct result of the harms they inflicted, the Plaintiff asserts.
The Hestrup Case is being consolidated with MDL 2804 RE: NATIONAL
PRESCRIPTION OPIATE LITIGATION. The MDL was created by Order of the
United States Judicial Panel on Multidistrict Litigation on Dec. 5,
2017.
The Plaintiffs in the actions allege that: (1) manufacturers of
prescription opioid medications overstated the benefits and
downplayed the risks of the use of their opioids and aggressively
marketed (directly and through key opinion leaders) these drugs to
physicians, and/or (2) distributors failed to monitor, detect,
investigate, refuse and report suspicious orders of prescription
opiates. All actions involve common factual questions about, inter
alia, the manufacturing and distributor defendants' knowledge of
and conduct regarding the alleged diversion of these prescription
opiates, as well as the manufacturers' alleged improper marketing
of such drugs.
In its Dec. 5, 2017 Order, the MDL Panel found that the actions in
this MDL involve common questions of fact, and that centralization
in the Northern District of Ohio will serve the convenience of the
parties and witnesses and promote the just and efficient conduct of
the litigation.[BN]
The Plaintiff is represented by:
Ashley C. Keller, Esq.
Travis D. Lenkner, Esq.
KELLER LENKNER
150 North Riverside Plaza
Chicago, IL 60606
Telephone: (312) 741-5220
E-mail: ack@kellerlenkner.com
tdl@kellerlenkner.com
MINISTRY OF CHILDREN, BC: Talks in Proposed Class Action Underway
-----------------------------------------------------------------
Jules Knox, writing for Global News, reports that a young woman in
British Columbia, Canada, who was taken from her mother when she
was just three years old, says in court documents that she was
repeatedly put in homes with abusive foster parents, and her social
worker stole her money.
The woman, who cannot be identified because she was a minor at the
time, named the Ministry of Children and Family Development as a
defendant in her case. It has now filed a response.
In a third-party notice, British Columbia says it is not
vicariously liable for the actions of foster parents or her
biological father.
The woman details a horrendous childhood in her lawsuit, including
time with an allegedly violent foster family.
She claims that the province knew about symptoms of sexual abuse
but failed to act.
When she was finally removed from the foster home, the civil suit
says she then spent the next 12 years with her biological father,
who punched her and pinned her to the floor.
Court documents claim that the ministry knew about the abuse but
failed to remove her from her father's custody for at least two
years.
When the ministry finally did take her away, it failed to give her
new foster parents, according to the lawsuit, leaving her homeless
for 10 months.
At a different foster home, she allegedly reported problems to the
province but was ignored, according to the civil claim.
The woman says she then ran away and gave birth to a child who was
taken away from her.
The lawsuit says her baby was put in the care of the foster parents
she fled and was only removed from there after her foster father
overdosed on injection opioids in a child's bedroom.
The province says it will be filing a response denying that it was
negligent in placing the girl with her biological father or foster
parents.
Five months later, court documents say the girl's social worker,
Robert Riley Saunders, opened a joint chequing account with the
girl, depositing funding for her food, clothing and shelter.
He then allegedly transferred the money into his account, using it
to pay for his family trips and his mortgage.
The girl had a second child, but Saunders took the baby away,
saying she was homeless and lacked the resources to care for her
child, according to the civil claim.
The lawsuit says that when the social worker finally closed the
account in January 2018, he took the cash for himself.
Jason Gratl, Esq., the woman's lawyer, said she wasn't the only
youth in care that Saunders stole money from.
"It's become apparent that Robert Riley Saunders has been negligent
and sometimes deliberately harmful to children in care for as long
as two decades," Gratl said.
The lawyer said he's personally representing more than a dozen
cases involving Saunders in a proposed class action.
"The Province of British Columbia is deep into negotiations with a
representative plaintiff in the class action," he said. "We
anticipate we'll be in a position to make a positive announcement
in the near future."
The lawyer said he's outraged by the facts of the case.
"The notion that a social worker would steal rent cheques from
children in care, making them homeless, is abhorrent," he said.
"And it's only gotten worse since then. We've learned that he
forged his academic credentials," Gratl added. "He appears to have
lived a lie and harmed many people."
Interior Savings Credit Union is also named as a defendant in the
woman's civil case.
Her lawsuit alleges the financial institution breached its own
policies and should have known that Saunders was transferring money
from the children into his own account and living beyond his
means.
"Only a financial institution with its eyes tightly screwed shut
would have failed to notice these irregularities," Gratl said.
In its response to the civil claim, Interior Savings says Saunders
made false statements. It also said it didn't know that he planned
to use the account for any reason other than to allow the youth to
have access to funding from the ministry and other sources.
Gratl says Saunders' whereabouts aren't currently known, but tips
from the public are appreciated.
"The question in my mind is, where are the criminal charges? Why is
this man not being prosecuted?" he asked.
RCMP have not yet responded to request for comment.
Gratl says he hopes to publicize the proposed terms of settlement
to ensure all class members or potential class members are apprised
of the proposed terms.
He estimates Saunders took approximately $400,000.
Gratl believes its time for a broad overhaul of the child
apprehension foster care system.
"Certainly we know this: that there aren't enough social workers,"
Gratl said. "There aren't enough foster parents. The system is
dramatically under-resourced." [GN]
MOVING RIGHT: Court Certified Settlement Classes in "Angerosa"
--------------------------------------------------------------
In the class action lawsuit styled as ROBERT ANGEROSA, on behalf of
himself, individually, and on behalf of all others similarly
situated v. MOVING RIGHT ALONG SERVICE, INC. and JIM RUEDA,
individually, Case No. 1:18-cv-04810-RML (E.D.N.Y.), the Court
entered an order:
1. certifying these settlement classes for settlement purposes
only:
New York Class:
"all individuals who worked for Defendants as a driver
and/or helper at any time between August 23, 2012 and July
31, 2019";
Federal Class
"all individuals who worked for Defendants as a driver
and/or helper at any time between August 23, 2012 and July
31, 2019, and who timely submit a Claim Form, thereby opting
into the settlement of all FLSA claims"
2. appointing Robert Angerosa as Class Representative;
3. appointing Borrelli & Associates, P.L.L.C., as Class
Counsel;
4. appointing Arden Claims Service, LLC (Claims Administrator)
to be responsible for communicating with Class Members,
disseminating the Notice, accepting and maintaining
documents sent by Class Members, including Claim Forms, Opt-
out statements, objections, and other documents relating to
claims administration, and administering claims for
allocation;
5. directing Defendants to furnish to the Claims Administrator
and Class Counsel, in electronic form, with a list of all
Class Members, identified by: (i) name; (ii) last known
address; (iii) social security numbers; and (iv) gross wages
earned during the time period from August 23, 2012 until
July 31, 2019. The list will be contained in a confidential
document that Defendants shall provide to the Claims
Administrator and Class Counsel. The list is to be used by
the Claims Administrator to effectuate the settlement, and
may not be disseminated or used for any other purpose;
6. directing the Parties to require the Claims Administrator to
send the Notice and Claim Form referenced above to putative
class members 44 days after entry of this Order;
7. directing any potential Class Member to may opt out of the
Class by mailing via First Class United States Mail, postage
prepaid, a written, signed statement to the Claims
Administrator that states that he or she is opting out of
the settlement, and that includes his or her name, address,
and telephone number, and the following statement: ,"I elect
to exclude myself from the settlement in Angerosa v. Moving
Right Along Service, Inc.," to be postmarked or received by
on or before June 1, 2020;
8. directing Class Counsel to file Plaintiffs’ Motion for
Final
Approval by on or before July 1, 2020 (date no sooner than
30 days after deadline for submission of Claim Forms, opt-
out statements, and/or objections; and
9. holding a Fairness Hearing on the above-referenced
settlement on Aug. 4, 2020.[CC]
MY HOME: Faces DeClements Suit Over Robocalls
---------------------------------------------
DANIEL DECLEMENTS, individually and on behalf of others similarly
situated, Plaintiff v. MY HOME GROUP REAL ESTATE, LLC, Defendant,
Case No. 2:20-cv-00362-DWL (D. Ariz., February 19, 2020) is a class
action against the Defendant for violations of the Telephone
Consumer Protection Act.
The Plaintiff alleges that he received an autodialed and/or
prerecorded voice call from a Defendant's realtor soliciting his
property listing. According to the complaint, the Defendant directs
and encourages its realtors to purchase systems such as RedX to get
leads lists for real estate listings, both expired listings and for
sale by owner listings, and autodialers with the ability to deliver
prerecorded voice messages to consumers without their consent,
thereby violating TCPA requirements.
My Home Group Real Estate, LLC is a residential real estate
brokerage that assists consumers in buying/selling properties
throughout locations all over the U.S. It is headquartered in
Scottsdale, Arizona. [BN]
The Plaintiff is represented by:
Nathan Brown, Esq.
BROWN PATENT LAW
15100 N 78th Way Suite 203
Scottsdale, AZ 85260
Telephone: (602) 529-3474
E-mail: Nathan.Brown@BrownPatentLaw.com
- and -
Rachel Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Telephone: (305) 469-5881
E-mail: rachel@kaufmanpa.com
NATIONAL CREDIT: Walls Sues Over Illegal Debt Collection Letters
----------------------------------------------------------------
RICHARD WALLS, Individually and on Behalf of All Others Similarly
Situated v. NATIONAL CREDIT SYSTEMS, INC., Case No. 6:20-cv-00045
(E.D. Tex., Jan. 30, 2020), seeks to recover damages under the Fair
Debt Collection Practices Act.
According to the complaint, the Plaintiff has a congressionally
defined right to receive all communications from a debt collector
free from any misrepresentations and false threats.
NCS sent the Plaintiff collection letters on Feb. 1, 2019, and
August 2, 2019. The two letters, although attempting to appear as
special offers, offer the exact same deal. Offering the same exact
deal on two separate occasions shows that NCS is attempting to
coerce the least sophisticated consumer into paying on this alleged
debt that they may not have paid otherwise in an attempt to take
advantage of a perceived opportunity while they can, says the
complaint.
The Plaintiff contends that the Defendant's collection activities
violated the FDCPA. The Plaintiff has, thus, suffered an injury as
a result of the Defendant's conduct.
The Defendant is a debt collector.[BN]
The Plaintiff is represented by:
Samantha Orlowski, Esq.
Joel S. Halvorsen, Esq.
HALVORSEN KLOTE
680 Craig Road, Suite 104
St. Louis, MO 63141
Telephone: (314) 451-1314
Facsimile: (314) 787-4323
E-mail: sam(@hklawstl.com
joel@hklawstl.com
NORTH EAST AUTO: Stay Denial in Dumas Upheld Pending Arbitration
----------------------------------------------------------------
The Court of Appeals of Ohio, Eighth District, Cuyahoga County,
issued an Opinion affirming a trial court judgment denying
Defendant's Motion to Stay Proceedings Pending Arbitration in the
case captioned THEODORE DUMAS, ET AL., Plaintiffs-Appellees, v.
NORTH EAST AUTO CREDIT, L.L.C., Defendant-Appellant. Nos. 108151,
108388, (Ohio App.).
North East Auto Credit, L.L.C. (NEAC) appeals the denial of its
motion to stay the trial court proceedings under R.C. 2711.02(B)
pending an arbitration of the class-action allegations, which were
advanced for the first time in an amended complaint filed over a
year after the initial pleading.
Theodore Dumas and Charlene Parker purchased a vehicle from NEAC.
In their purchase agreement, Dumas and Parker agreed that either
party may seek to arbitrate any disputes arising thereunder, and
that if the matter was arbitrated, the plaintiffs waived any right
to join a class-action lawsuit.
In light of the permissive nature of the arbitration clause, Dumas
and Parker chose to file a lawsuit to settle a disagreement with
NEAC, which in turn, consented to proceed on the individual claims
despite preserving its affirmative defense of arbitration.
On review, the Appellate Court notes that according to the express
terms of their agreement, Dumas and Parker have not waived their
right to participate as class representatives or members, and in
addition, NEAC is not asserting any right to seek a stay pending
the arbitration of Dumas and Parker's individual claims.
In this case, arguably, the plaintiffs were not required to
arbitrate their claims because of the permissive nature of the
particular arbitration clause and the fact that NEAC acquiesced to
the trial court action. The individual plaintiffs are not subject
to arbitration because of a waiver, the Appellate Court opines.
NEAC could not have waived any individual defenses against the
putative class members because those members are not yet parties in
the action, nor can Dumas and Parker elect to avoid arbitration on
behalf of the putative class members, who themselves have the
individual right to request arbitration and against whom NEAC can
elect to seek individual arbitration.
This conclusion, however, may be of little value to NEAC's current
appeal. Because the putative class members are not parties in the
proceeding and are not under the trial court's authority, it
necessarily follows that there is no justiciable controversy upon
which arbitration could be compelled or the action stayed at this
point in time.
Until the class-certification stage, NEAC cannot waive its right to
assert an arbitration defense against the putative class members or
as a basis to demonstrate that Dumas and Parker failed to
demonstrate the typicality or adequacy requirements of Civ.R. 23,
the Appellate Court opines. Along those same lines, because the
putative class members are not parties to the action, NEAC cannot
seek to stay the action pending arbitration of what is currently
considered a non-justiciable controversy between it and the
putative class members. Any stay pending such arbitration would be
premature at this point in the litigation.
The Appellate Court thus affirms the decision denying NEAC's motion
to stay the proceeding pending the arbitration.
A full-text copy of the Appellate Court's November 21, 2019 Opinion
available at https://tinyurl.com/wyzpw64 from Leagle.com
Frederick & Berler, L.L.C., Ronald I. Frederick , Michael Berler ,
and Michael L. Fine,767 East 185th Street, Cleveland, Ohio44119,
for appellees.
The Gertsburg Law Firm Co., L.P.A., Mark M. Turner -
mt@gertsburglaw.com - Eugene Friedman - ef@gertsburglaw.com -
Maximilian Julian - mj@gertsburglaw.com - and Cynthia M. Menta ;
and William J. Krueger, 15885 W Sprague Rd, Strongsville, OH
44136-1772, for appellant.
PARTSBASE INC: Underpays Sales Representatives, Martin Claims
-------------------------------------------------------------
SHAWN MARTIN, individually, and on behalf of all others similarly
situated, Plaintiff, v. PARTSBASE INC. D/B/A GOVGISTICS and
GOVGISTICS INC., Defendants, Case No. 9:20-cv-80235 (S.D Fla.,
February 18, 2020) is a class action against the Defendants for
failure to pay overtime compensation and premium for all hours
worked over 40 each week, failure to pay minimum wage, unjust
enrichment, conversion, violations of the Florida Deceptive and
Unfair Trade Practices Act, and breach of contract.
Mr. Martin, who was employed by the Defendants as an inside sales
representative, and the members of the putative Class of similarly
situated allege that Defendants maintained a scheme to evade and
avoid their Fair Labor Standards Act wage obligations.
PartsBase Inc. operates the world's largest B2B online parts
locator service for the aviation, aerospace and defense industries
with corporate offices located at 5401 Broken Sound Blvd NW, Boca
Raton, Florida.
Govgistics Inc. serves as a people company that leverages
technology to provide defense contractors with a means of matching
their criteria to solicitations released by the U.S. Department of
Defense. [BN]
The Plaintiff is represented by:
Mitchell L. Feldman, Esq.
FELDMAN LEGAL GROUP
6940 W. Linebaugh Ave, #101
Tampa, FL 33625
Telephone: 813-639-9366
Facsimile: 813-639-9376
PASADENA TITLE: West Says Collection of Closing Fee Unlawful
-------------------------------------------------------------
ROBERT WEST, individually and on behalf of all others similarly
situated, Plaintiff v. PASADENA TITLE COMPANY, LLC, Defendant, Case
No. 20-000857-CI (Fla. 6th Cir., Pinellas Cty., February 19, 2020)
is a class action against the Defendant pursuant to Florida Rules
of Civil Procedure.
The Plaintiff, on behalf of himself and other similarly-situated
buyers, alleges that the Defendant illegally charged and collected
closing fees in connection to a real estate purchase and sale
contract that he entered with a property owner in Pinellas County,
Florida, on or about February 7, 2019, wherein the Defendant was
designated as closing agent for the procurement of title insurance
and to perform closing services. The Plaintiff asserts that the
contract was an all-cash transaction with no lender. Therefore, he
was not responsible for any loan or title agent closing fees, title
policy premiums or lender endorsements.
Pasadena Title Company, LLC is a licensed title agency and a
Florida limited liability company doing business in the State of
Florida. [BN]
The Plaintiff is represented by:
Joshua H. Eggnatz, Esq.
EGGNATZ | PASCUCCI
7450 Griffin Road, Suite 230
Davie, FL 333 14
Telephone: (954) 889-3359
Facsimile: (954) 889-5913
E-mail: JEggnatz@JusticeEarned.com
- and -
Seth M. Lehrman, Esq.
EDWARDS POTTINGER LLC
425 North Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
Telephone: (954) 524-2820
Facsimile: (954) 524-2822
E-mail: seth@epllc.com
- and -
Richard B. Feinberg, Esq.
FLORIDA LEGACY LAW LLC
600 Cleveland Street, Suite 3 13
Clearwater, FL 33755
Telephone: (727) 231-6400
E-mail: ricfeinberg@hotmail.com
PETIT POULET: Underpays Hotel Staff, Arcos Claims
-------------------------------------------------
IVAN ARCOS, individually and on behalf of others similarly
situated, Plaintiff v. 52 W 33 ASSOCIATES LLC, d/b/a PETIT POULET;
HERALD HOTEL ASSOCIATES, L.P., d/b/a RADISSON MARTINIQUE BROADWAY;
KELLARI PAREA, LLC, d/b/a THE KELLARI HOSPITALITY GROUP; STAVROS
AKTIPIS; and HAROLD THURMAN, Defendants, Case No. 1:20-cv-01405
(S.D.N.Y., February 18, 2020) is a class action against the
Defendants for violations of the Fair Labor Standards Act and the
New York Labor Law.
The Plaintiff seeks to represent all current and former non-exempt
employees, including but not limited to cooks, food preparers,
bartenders, waiters, bussers, food runners, delivery persons,
cashiers, dishwashers, housekeeping persons and porters, employed
by Defendants in the past six years. The Plaintiff alleges that
the Defendants violated the FLSA and NYLL requirements by failing
to pay applicable minimum wages, failing to provide wage
statements, and failing to provide wage and hour notices upon
hiring.
Mr. Arcos was employed by the Defendants as a non-exempt, hourly
employee.
52 W 33 Associates, LLC is a New York-based restaurant operator and
a domestic business corporation, which also operates under the name
Petit Poulet.
Herald Hotel Associates, LP is a New York-based hotel operator and
a domestic business corporation, which is also doing business as
Radisson Martinique Broadway.
Kellari Parea, LLC is a New York-based restaurant operating company
and a domestic business corporation, which is also doing business
as the Kellari Hospitality Group. [BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1180
Facsimile: (212) 465-1181
PHILADELPHIA SCHOOL: Wins Summary Judgment in Parker Suit
---------------------------------------------------------
Judge Thomas Reuter of the U.S. District Court for the Eastern
District of Pennsylvania granted motions for summary judgment filed
by defendants in the case ERICA PARKER, v. SCHOOL DISTRICT OF
PHILADELPHIA, et al., Civil Action No. 17-1744. (E.D. Pa.).
Erica Parker commenced the action pursuant to 42 U.S.C. Section
1983 alleging that defendants violated her First Amendment rights
by retaliating against her after she reported the suspected abuse
of a minor child. Plaintiff also asserts a state law claim for
wrongful termination.
Plaintiff was retained by defendant Staffing Plus, a staffing
corporation, as an independent contractor beginning in
approximately 2000. Defendant Alison Clark was employed by
Staffing Plus and acted as the plaintiff's recruiter. As an
independent contractor working for Staffing Plus, plaintiff was a
mandatory reporter and was responsible for reporting suspicions of
child abuse.
Defendant Interact provides School Therapeutic Services ("STS") to
students in the School District of Philadelphia pursuant to a
contract with Community Behavioral Health. In 2015, plaintiff was
referred to Interact by Staffing Plus to work as a Lead Clinician.
Plaintiff was first assigned by Interact to Blaine elementary
school, and then began working at Edward T. Steel Elementary School
in September 2015. While plaintiff was assigned to Steel, Jamal
Dennis was the principal of the school and Sharon Stark, an
Interact employee, worked as Clinical Coordinator in the STS
program and supervised plaintiff. Ursala Wacyk, an Interact
employee, directed Interact's STS division.
Before the Court are the motions for summary judgment filed by:
(1) defendants Intercommunity Action, Inc., Sharon Stark, and
Ursala Wacyk (collectively, the "Interact Defendants");
(2) defendants the School District of Philadelphia ("SDP") and
Jamal B. Dennis (collectively, the "SDP Defendants"); and
(3) defendants Staffing Plus Holdings, Inc. and Alison Clark
(collectively, the "Staffing Plus Defendants").
In her responses to the motions for summary judgment, plaintiff
withdrew several of her claims. That is, plaintiff voluntarily
withdrew the wrongful termination claim presented in Count II
against Ms. Stark and Ms. Wacyk. Additionally, plaintiff has
voluntarily withdrawn Count III of the Second Amended Complaint
against defendant SDP which presented a claim pursuant to Monell v.
Dep't of Soc. Servs. of New York, 436 U.S. 658, 690 (1978).
Therefore, the claims that remain before the court are: the claim
for First Amendment retaliation under Section 1983 in Count I
alleged against all defendants, and the claim for wrongful
termination in Count II presented against defendants Staffing Plus
and Interact.
Count I - First Amendment Retaliation
In Count I of the Second Amended Complaint, plaintiff asserts that
her First Amendment rights were violated when defendants retaliated
against her by terminating her employment after she reported a
suspicion of child abuse to ChildLine. Plaintiff's Count I claim,
presented against all defendants, fails for several reasons.
To establish any claim under Section 1983, a plaintiff must
demonstrate that: (1) the conduct at issue was committed by a
person acting under the color of state law, and (2) the
complained-of conduct deprived the plaintiff of rights secured
under the Constitution or federal law.
State Actors
Defendants Interact, Ms. Stark, Ms. Wacyk, Staffing Plus, and Ms.
Clark each asserted in their motions for summary judgment that they
are not state actors, and therefore, cannot be liable on
plaintiff's First Amendment claim. Defendants' respective state
actor arguments are compelling.
To determine whether state action exists, the court must consider:
(1) whether the private entity has exercised powers that are
traditionally the exclusive prerogative of the state, (2) whether
the private party has acted with the help of or in concert with
state officials, and (3) whether the state has so far insinuated
itself into a position of interdependence with the acting party
that it must be recognized as a joint participant in the challenged
activity.
Viewing the evidence in a light most favorable to plaintiff, the
record simply does not establish that Mr. Dennis made the decision
to remove plaintiff from Steel. Rather, Ms. Stark's July 25, 2019
declaration reflects that she made the determination to remove
plaintiff from Steel due to deficiencies in plaintiff's work. This
is supported by the October 14, 2015, email from Ms. Stark to Ms.
Wacyk that reflects the same, as does an October 14, 2016 letter
authored by Ms. Stark. In addition, Mr. Dennis has represented that
he did not know the reason plaintiff was removed from Steel.
Moreover, plaintiff acknowledged at her deposition that no one from
Staffing Plus or Interact told plaintiff that Mr. Dennis directed
them not to bring plaintiff back to Steel. Plaintiff's assertion
that Mr. Dennis instructed other defendants to remove plaintiff
from Steel is pure conjecture, the Court opines.
Whether Plaintiff Engaged in Constitutionally Protected Conduct
Assuming arguendo that plaintiff has demonstrated that defendants
are state actors, to establish a First Amendment retaliation claim,
plaintiff must prove that (1) she engaged in constitutionally
protected conduct, (2) the defendant engaged in retaliatory action
sufficient to deter a person of ordinary firmness from exercising
his constitutional rights, and (3) a causal link existed between
the constitutionally protected conduct and the retaliatory action.
The speech here consists of the report that plaintiff made to
ChildLine, relaying the information known to her at the time,
including that the guidance counselor had not yet made a report of
suspected abuse. ChildLine is the state-wide toll-free telephone
number established by the Department of Human Services for the
purpose of reporting suspicions of child abuse. The statute also
provides that when a person is required to report a suspicion of
abuse as a school staff member, the mandatory reporter must make
the report to the Department of Human Services, but also shall
immediately thereafter notify the person in charge of the school.
In accordance with these statutory procedures, plaintiff contacted
ChildLine and then informed Ms. Stark and Mr. Dennis of the
suspected abuse and that she had made a report through ChildLine.
Thus, because of her work as a Lead Clinician, plaintiff was
required pursuant to statute to direct the report to the Department
of Human Services and to Mr. Dennis. Consideration of this factor
points to employee speech.
In addition, the subject of plaintiff's speech, a suspicion of
child abuse report, was within plaintiff's ordinary job duties and
thus also points to employee speech. It was anticipated even before
plaintiff began working at Steel that in her role as a Lead
Clinician, she may be required to report a suspicion of child
abuse. Evidence supplied by defendant Staffing Plus demonstrates
that plaintiff executed a Staffing Plus Independent Contractor Core
Orientation Checklist on February 2, 2015, confirming that as an
independent contractor she would be held accountable for knowing
and following the information" listed on the checklist. The section
entitled Legal Responsibilities includes the item Suspected abuse
and role as mandatory reporter.
Indeed, plaintiff received training from Staffing Plus in February
2015, and again in June 2015, on how to recognize and report child
abuse. Thus, plaintiff's report to ChildLine was part and parcel of
her ordinary job duties.
Thus, the to whom, what and why of plaintiff's speech clearly
demonstrates that plaintiff spoke as an employee when she made the
report to ChildLine. In other words, defendants have presented
evidence that demonstrates that plaintiff was expected pursuant to
her job duties to make the speech at issue. Therefore, the Court
finds that plaintiff did not speak as a citizen when engaging in
the claimed protected activities.
Plaintiff's Removal from Steel
In any event, it bears noting that even if plaintiff had presented
a viable First Amendment claim, plaintiff has not presented
sufficient evidence to overcome the motions for summary judgment.
Plaintiff contends that her report to ChildLine was the motivating
factor for her removal from Steel and that temporal proximity,
without more, can create an inference of causation if the timing is
unusually suggestive.
Plaintiff argues that the period between when Mr. Dennis learned on
October 7, 2015 that it was plaintiff who made the ChildLine report
and when she was told on October 15, 2015 not to report to Steel is
unduly suggestive. Plaintiff further avers that she has produced
direct evidence that her speech was the motivating factor for her
termination.
As noted supra, if a plaintiff demonstrates she engaged in
constitutionally protected conduct, the defendant retaliated, and a
causal link existed between the constitutionally protected conduct
and the retaliatory action, the government nonetheless may avoid
liability if it can show by a preponderance of the evidence that it
would have taken the adverse action even in the absence of the
protected conduct.
Here, even assuming arguendo that plaintiff has made out a prima
facie case of First Amendment retaliation, defendants have met
their burden of showing that plaintiff would have been removed from
Steel in the absence of the report to ChildLine. The evidence
demonstrates that plaintiff acknowledged at her deposition that her
paperwork contained errors and that she had difficulty managing her
caseload while at Steel.
Indeed, plaintiff sent an email to Ms. Wacyk dated October 13,
2015, in which she requested a meeting to discuss the difficulty
she was having completing her required paperwork in a timely
manner. On or around October 14, 2015, Ms. Stark became convinced
that the deficiencies in plaintiff's work required that plaintiff
be removed from her assignment at Steel. The October 14, 2015 email
from Ms. Stark to Ms. Wacyk indicates that she reviewed plaintiff's
SALs and that there are a slew of mistakes. Her sales dates and
time do not match her notes and even has the wrong children. She
has misspelled one child's last name on the sales. Her tracking
sheet is a mess with cross outs. She does not have all the notes
for time billed. She did not sign and date a sal. The Court is
convinced now that she is not right for this job.
In order to receive funds, Interact submitted detailed progress
notes and timesheets, completed by its clinicians, reflecting the
services it provided. Thus, the deficiencies in plaintiff's
performance impacted Interact's ability to receive funding. No
reasonable juror could conclude based on this evidence that the
call to ChildLine was the but-for cause of plaintiff's removal from
Steel.
Because plaintiff has failed to present evidence sufficient to
establish a claim based on First Amendment retaliation, the Court
will grant defendants' motions for summary judgment on Count I of
plaintiff's Second Amended Complaint.
Count II — Wrongful Termination under Pennsylvania Law
In Count II of the Second Amended Complaint, plaintiff presents a
Pennsylvania state law claim based on wrongful termination.
Pennsylvania does not recognize a common law action for wrongful
termination of at-will employment. An employee may bring a cause
of action for termination only in the most limited circumstances,
namely 'where the termination violates a clear mandate of public
policy.'
In their motion to dismiss, the Staffing Plus Defendants argued
that Pennsylvania law does not permit wrongful termination claims
by independent contractors such as plaintiff, and that plaintiff
had not set forth a cognizable violation of public policy as the
basis of her wrongful termination claim.
In deciding the motion to dismiss, Judge DuBois determined,
however, that plaintiff, an independent contractor, may bring a
wrongful termination claim on the ground that her termination
violated public policy. The court noted that termination based on
compliance with Pennsylvania's Child Protective Services Law falls
squarely within the public policy exceptions under Pennsylvania
law.
Even if plaintiff can pursue her common law wrongful discharge
claim under the facts of this case, plaintiff's claim would fail
for other reasons. It appears that the state law claim for wrongful
discharge would be considered under the federal McDonnell Douglas
framework established for retaliation claims under Title VII. The
burden of production then shifts to defendants to proffer a
legitimate reason for the termination. The burden then shifts back
to plaintiff to show that defendants' explanation is pretextual. In
this case then, plaintiff "must offer sufficient evidence for a
juror to find defendants'] proffered reason was a fabrication . . .
or . . . to infer that [the filing of the ChildLine report . . .was
more likely that not a motivating or determinative cause of the
adverse employment action."
Utilizing the McDonnell Douglas analytical framework, plaintiff's
wrongful termination claim also would fail, the Court opines
Interact
In support of her argument that she was wrongly discharged,
plaintiff again presents the arguments presented in connection with
the First Amendment retaliation claim. That is, plaintiff alleges
that Mr. Dennis was motivated to discredit Plaintiff in order to
protect his guidance counselor and that Co-Defendants and Moving
Defendants were motivated by their interest in maintaining the
client relationship.
Defendant Interact contends that the evidence does not support
plaintiff's claim that she was discharged because she complied with
her statutory duty. Additionally, Interact avers that plaintiff was
not discharged for her report to ChildLine, but rather for issues
involving her paperwork and time management skills.
Here, plaintiff has not proffered sufficient evidence to rebut
defendants' legitimate reason for removing plaintiff from Steel. No
reasonable jury could find based on the evidence before the court
that Interact directed plaintiff's removal from Steel because she
reported suspected child abuse to ChildLine.
Staffing Plus
In its motion for summary judgment, defendant Staffing Plus argued
in the alternative that even if plaintiff can maintain a state law
wrongful discharge claim, plaintiff adduced no evidence that
defendants acted in concert to remove plaintiff from Steel due to
the ChildLine report. Once again, plaintiff alleges that Mr. Dennis
was motivated to discredit Plaintiff in order to protect his
guidance counselor and that Co-Defendants and Moving Defendants
were motivated by their interest in maintaining the client
relationship. Plaintiff reiterates that two Staffing Plus employees
informed her that she was removed from Steel due to the phone
call.
As discussed at length supra, the conversations that plaintiff
relies upon in support of her contention that Staffing Plus advised
plaintiff that she should not return to Steel because of the phone
call are too speculative for purposes of surviving a motion for
summary judgment. At her deposition, plaintiff stated that she
assumed that Ms. Clark was referring to the ChildLine call when
they spoke in October 2015, but acknowledged that Ms. Clark did not
explicitly reference the ChildLine call. Plaintiff did not even
recall if she again spoke with Ms. Clark after that time. In
addition, the deposition testimony regarding the telephone
conversation with Ms. Call, upon which plaintiff also relies as a
basis for her claim, is similarly vague.
For the foregoing reasons, summary judgment is appropriate on
plaintiff's Count II claim against defendants Interact and Staffing
Plus, the Court holds.
Judicial Estoppel
The Staffing Plus Defendants filed a separate motion for summary
judgment, contending that, pursuant to the doctrine of judicial
estoppel, plaintiff should not be permitted to pursue her claims in
the instant matter. The Interact Defendants also raise this issue
in their motion for summary judgment. The Staffing Plus Defendants
and the Interact Defendants assert that: (1) plaintiff was required
to disclose her alleged causes of action in her bankruptcy
petition, and (2) plaintiff should be judicially estopped from
pursuing her claims against defendants because she failed to
disclose them during her bankruptcy proceeding.
Judicial estoppel is a judge-made doctrine that seeks to prevent a
litigant from asserting a position inconsistent with one that she
has previously asserted in the same or in a previous proceeding.
The doctrine is applicable when three elements are met: (1) the
party to be estopped must have taken irreconcilably inconsistent
positions, (2) the party to be estopped acted in bad faith, and (3)
the remedy is tailored to address the harm.
Because the Court will grant the defense motions for summary
judgment for reasons stated, the Staffing Plus motion for summary
judgment on the basis of judicial estoppel will be denied as moot.
In sum, the Court orders that the motions for summary judgment
filed by defendants Interact, Ms. Stark, and Ms. Wacyk, defendants
SDP and Mr. Dennis and defendants Staffing Plus and Ms. Clark are
GRANTED.
A full-text copy of the District Court's November 21, 2019
Memorandum Order available at https://tinyurl.com/rk66nw4 from
Leagle.com
ERICA PARKER, Plaintiff, represented by GARY SCHAFKOPF , HOPKINS
SCHAFKOPF, LLC, 11 Bala Avenue, Bala Cynwyd, PA 19004, L. ANTHONY
DIJIACOMO, III - ADiJiacomo@weisberglawoffices.com - WEISBERG LAW
& MATTHEW B. WEISBERG - mweisberg@weisberglawoffices.com - WEISBERG
LAW PC.
SCHOOL DISTRICT OF PHILADELPHIA, doing business as EDWARD T. STEEL
ELEMENTARY SCHOOL & JAMAL B. DENNIS, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY AS PRINCIPAL OF EDWARD T. STEEL ELEMENTARY
SCHOOL, Defendants, represented by COLIN STUART HAVILAND ,
Philadelphia School District Office of the General Counsel.
STAFFING PLUS HOLDINGS, INC., Defendant, represented by MARVIN
WEINBERG , FOX ROTHSCHILD LLP, STEVEN K. LUDWIG , FOX ROTHSCHILD
LLP & ANDREW M. MACDONALD , Fox Rothschild LLP, 2000 Market Street
Tenth Floor, Philadelphia, PA, 19103
INTERCOMMUNITY, ACTION INC., SHARON STARK, doing business as
INTERCOMMUNITY, ACTION INC. & URSALA WACYK, doing business as
INTERCOMMUNITY, ACTION INC., Defendants, represented by JACQUELINE
K. GALLAGHER - jacqueline.gallagher@bipc.com - Buchanan Ingersoll
& Rooney P.C.
ALLISON JOHNSTONE, doing business as STAFFING PLUS HOLDINGS, INC.,
Defendant, represented by STEVEN K. LUDWIG , FOX ROTHSCHILD LLP &
ANDREW M. MACDONALD , Fox Rothschild LLP.
PHILIPS BRYANT: Obtains Initial Approval of Chang Suit Settlement
-----------------------------------------------------------------
Judge LAURA TAYLOR SWAIN of the United States District Court for
the Southern District of New York issued an order granting
preliminary approval of class settlement in the case captioned
ANDREW CHANG, on behalf of themselves, FLSA Collective Plaintiffs
and the Class, et al., Plaintiffs, v. PHILIPS BRYANT PARK LLC d/b/a
BRYANT PARK HOTEL, et al., Defendants, Case No. 17-CV-8816-LTS-SLC
(S.D.N.Y.).
The Court concludes that the purported Class satisfies the elements
of Rule 23(b)(3). Accordingly, the Court certifies this class for
the purposes of settlement, notice and award distribution only:
Named plaintiffs and up to 367 current and former hourly,
non-exempt employees employed by Defendants from November 13, 2011
to July 30, 2018.
The Court finds that the members of the Class are similarly
situated within the meaning of Section 16(b) of the Fair Labor
Standards Act, 29 U.S.C. Section 216(b), for purposes of
determining whether the terms of settlement are fair. Accordingly,
the Court conditionally certifies the Class as an FLSA collective
action.
Plaintiffs Andrew Chang and Ryan Santos are appointed as class
representatives of the Class, both under Rule 23 and under 29
U.S.C. Section 216(b). C.K. Lee, Esq. of Lee Litigation Group, PLLC
is appointed as class counsel for the Class.
The Court schedules, for Thursday, May 21, 2020, at 2:30 p.m. in
Courtroom 17C, a hearing to determine whether to grant final
certification of the Settlement Class, and the FLSA collective
action, and final approval of the Settlement Agreement and the Plan
of Allocation. At the Fairness Hearing, the Court also will
consider any petition that may be filed for the payment of
attorneys' fees and costs/expenses to Class Counsel, and any
service payments to be made to the Plaintiffs.
Prior to its entry of its order preliminarily approving the class
settlement in the case, the Court, in an order dated November 25,
2019, a full-text copy of which is available at
https://tinyurl.com/r6syavf from Leagle.com, directed the parties
to file an amended Proposed Notice that includes some revisions,
including: The Proposed Notice must define and explain a collective
action pursuant to Section 216(b) of the FLSA, just as the Proposed
Notice currently explains a class action in response to question 2
on page 2, including by explaining that recipients must
affirmatively opt in to be part of the class and any settlement
agreement, and the mechanism by which this settlement requires them
to simultaneously opt in and settle their FLSA claims if they are
to receive money under this settlement at all.
The Court authorizes Amended Class Notices be mailed to potential
members of the FLSA collective action, notifying them of the
pendency of the FLSA claim, and of their ability to join the
lawsuit.
Andrew Chang, on behalf of themselves, FLSA Collective Plaintiffs
and the Class, Plaintiff, represented by Anne Melissa Seelig -
anne@leelitigation.com - Lee Litigation Group, PLLC & C.K. Lee
-cklee@leelitigation.com - Lee Litigation Group, PLLC.
Ryan Santos, on behalf of themselves, FLSA Collective Plaintiffs
and the Class, Plaintiff, represented by C.K. Lee , Lee Litigation
Group, PLLC.
Philips Bryant Park LLC, doing business as Bryant Park Hotel, Phil
Columbo & Michael Strauss, Defendants, represented by Arthur J.
Robb – ajrobb@cbdm.com - Clifton Budd & DeMaria, LLP, Carla
Gunther , Clifton Budd & DeMaria, LLP, 350 5th Ave Fl 61, New York,
NY 10118-0110 & Robert A. Wiesen – rawiesen@cbdm.com - Clifton
Budd & DeMaria, LLP.
PROFESSIONAL ACCOUNT: Archavage Suit Remanded to Luzerne County Ct.
-------------------------------------------------------------------
In the case, STEVEN ARCHAVAGE, Plaintiff, v. PROFESSIONAL ACCOUNT
SERVICES, INC., Defendant, Civil Action No. 3:19-CV-01215 (M.D.
Pa.), Magistrate Judge Karoline Mehalchick of the U.S. District
Court for the Middle District of Pennsylvania granted Archavage's
motion to remand the case to the Luzerne County Court of Common
Pleas.
Archavage commenced the action on Jan. 25, 2016, by filing a
complaint in the Luzerne CCP. In his complaint, Archavage alleges
that PAS' employees falsely held themselves out as a hospital
creditor when attempting to collect debts and recorded these phone
calls without obtaining the consent of the other caller.
Based on these and other, more specific allegations, Archavage
asserts five causes of action based on fraud and unjust enrichment
and violations of the three Pennsylvania statutes: the Fair Credit
Extension Uniformity Act, the Unfair Trade Practices and Consumer
Protection Law, and the Wiretap Act. Archavage asserted a total
amount in controversy, for himself and each class member, of $5
million or less, and he indicated that the members of the class in
Pennsylvania are less than or equal to 100 in number.
In February 2016, PAS filed a notice of removal asserting the
Court's subject matter jurisdiction based on diversity of
citizenship and the presence of a federal question. Archavage
responded by filing a motion for remand, and in March 2017,
Magistrate Judge Joseph F. Saporito, Jr. granted Archavage's
motion, remanding the case back to Luzerne CCP. Judge Saporito
found that PAS had failed to meet its burden of establishing
diversity of citizenship and that the amount in controversy
exceeded $5 million, or that the Court has jurisdiction based on a
federal question. Judge Saporito's reasoning was based, in part,
on a provision in the complaint that expressly limits the amount in
controversy to lower than the jurisdictional requirement.
Discovery and motion practice ensued, and the class was certified
on Aug. 9, 2018.
After a failed mediation effort culminating with Archavage's June
19, 2019 letter demand of $15 million, PAS filed the July 17, 2019
notice of removal that is now the subject of Archavage's motion for
remand. PAS argues that it has established sufficient grounds for
removal to federal court based on diversity of citizenship, arguing
that (1) it is a Tennessee citizen, whereas Archavage and potential
class members are Pennsylvania citizens; (2) more than 100
potential class members have been identified, despite the
allegation in the complaint that there are no more than 100 class
members; and (3) the amount in controversy necessarily exceeds $5
million given Archavage's demands for punitive damages and
attorneys' fees and his $15 million settlement offer.
Archavage argues that PAS failed to file the notice of removal
timely and that removal is precluded by 28 U.S.C. Sections
1446(c)(3)(A) and 1447(d) and the doctrines of law of the case and
collateral estoppel. Though PAS filed its notice of removal on
July 17, 2019, over two years after Archavage had filed his
complaint, PAS argues that the notice is timely under Section
1446(b)(3). It is PAS' contention that Archavage's June 21, 2019
settlement letter demanding $15 million constitutes "other paper"
under the statute and that the notice of removal, filed on July 17,
2019, is therefore timely.
Magistrate Judge Mehalchick finds that PAS' arguments, though not
without some support in the case law, run contrary to the express
language of the removal statute. No genuine argument can be made
that the complaint was initially not removable solely because of
the amount in controversy. Nor is the Court able to conclude that
Archavage's settlement demand is an "other paper" from which PAS
was first able to ascertain that the case is one which is or has
become removable.
Because PAS has failed to establish that its notice of removal
complies with the timing provisions in Sections 1446(b)(3) and
(c)(3)(A), PAS has failed to establish that its notice of removal
is timely. As the notice of removal is untimely, PAS will not be
permitted to rehash the same diversity-of-citizenship arguments
raised before Judge Saporito.
Finally, even assuming the notice of removal was filed timely, PAS
nevertheless failed to establish that Archavage's settlement demand
letter is an "other note" under Sections 1446(b)(3) and (c)(3)(A).
Consideration of these factors leads the Magistrate to conclude
that Archavage's settlement demand letter is not an "other note"
under the statute. Archavage, PAS, and the courts involved in the
case have all noted Archavage's explicit disclaimer of seeking
damages over $5 million. Moreover, the settlement demand itself is
equivocal, containing as it does the cautionary language,
naturally, the demand is made for purposes of early resolution
through medication. No expert or other evidence was provided with
the settlement demand letter to support the figure demanded
therein, Archavage did not make it impossible for PAS to conclude
that the amount in controversy could be satisfied, and the
settlement demand was not made part of the Luzerne CCP record.
Doubts abound concerning the Court's alleged jurisdiction, and
these doubts must be construed in favor of granting remand.
Based on the foregoing, Magistrate Judge Mehalchick granted
Archavage's motion to remand. She remanded the case to the Luzerne
County Court of Common Pleas, and the Clerk of Court is directed to
close thes case. PAS' motion for an order decertifying or striking
various audio files from the potential class list is denied as
moot, as PAS has failed to establish the Court's subject matter
jurisdiction over Archavage's claims.
An appropriate Order follows.
A full-text copy of the Court's Jan. 29, 2020 Memorandum Opinion is
available at https://is.gd/3BA49h from Leagle.com.
Steven Archavage, Plaintiff, represented by Joseph P. Comerota,
Comerota Law, P.C.
Professional Account Services, Inc., Defendant, represented by Mark
S. Sottile -- mtsottile@burnswhite.com -- Burns White LLC, Meghan
E. Campbell -- mecampbell@burnswhite.com -- Burns White LLC &
Stuart T. O'Neal, III -- soneal@burnswhite.com -- Burns White LLC.
PRUCO LIFE: Behfarin Seeks to Certify Settlement Class
------------------------------------------------------
In the class action lawsuit styled as RICHARD BEHFARIN,
individually and on behalf of a class of similarly situated
individuals v. PRUCO LIFE INSURANCE COMPANY, et al., Case No.
2:17-cv-05290-MWF-FFM (C.D. Cal.), the Plaintiff will move the
Court on April 20, 2020, for an order:
1. finally certifying the Settlement Class;
2. finding that the Notice Program has been adequate and
reasonable and has met the requirements of Fed. R. Civ. P.
23, and has constituted the best 8 practical notice under
the circumstances;
3. granting final approval to the Settlement under Fed. R. Civ.
P. 23(e); and
4. directing the entry of Final Judgment dismissing the Action
(including all individual and Class claims presented
thereby) on the merits and with prejudice.[CC]
Attorneys for the Plaintiff are:
Steven C. Shuman, Esq.
Robert Mobasseri, Esq.
Walter J. Lack, Esq.
ENGSTROM, LIPSCOMB & LACK
10100 N Santa Monica Blvd No. 1200
Los Angeles, CA 90067
Telephone: 310-552-3800
RCSH OPERATIONS: Dix Seeks Proper Wages for Restaurant Servers
--------------------------------------------------------------
ROBERT DIX, on behalf of himself and all others similarly situated,
Plaintiff(s), v. RCSH OPERATIONS, LLC. Defendant, Case No.
2:20-cv-00098-JES-MRM (M.D. Fla., Feb. 12, 2020) is an action
against the Defendant for its failure to pay full and proper
federal minimum wage for the "non-tipped" work performed by the
Plaintiff and the class members who are restaurant servers during
the course of their employment.
The Defendant also failed to reimburse all Servers the cost of the
uniform they were required to purchase and wear in the restaurant
every single day of employment.
RCSH Operations, LLC, Doing Business As RUTH's CHRIS, is a New
Orleans limited liability steakhouse company operating and
transacting business within Lee County, Florida. [BN]
The Plaintiff is represented by:
Jordan Richards, Esq.
USA EMPLOYMENT LAWYERS-JORDAN RICHARDS, PLLC
805 E. Broward Blvd. Suite 301
Fort Lauderdale, FL 33301
Telephone: (954) 871-0050
READING, PA: Ziegler Appeals Cmmw. Court Order to Pa. Sup. Ct.
--------------------------------------------------------------
Plaintiffs Alan Ziegler, et al., filed with the Supreme Court of
Pennsylvania an Application for Extraordinary Relief the matter
styled Alan Ziegler, et al., Individually and on Behalf of all
Similarly Situated Persons, Petitioners v. The City of Reading, and
Reading Area Water Authority, Respondents, Case No. 22 MM 2020.
The Plaintiffs want the Supreme Court to review an order issued by
the Pennsylvania Commonwealth Court in their appellate case titled
Alan Ziegler, et al., Individually and on Behalf of all Similarly
Situated Persons v. The City of Reading, and Reading Area Water
Authority, Case No. 1777 CD 2019.
The lawsuit is from the lower court, Berks County Court of Common
Pleas.[BN]
Plaintiffs-Petitioners Alan Ziegler, Nicolas Bene, Lissette
Chevalier, Jose Munoz, and Efrain Caban are represented by:
Laura Elizabeth Cooper, Esq.
LIBERTY LAW GROUP, LLC
128 N 5th St.
Reading, PA 19601
Phone: (610) 685-1800
Paola Pearson, Esq.
Sol H. Weiss, Esq.
ANAPOL WEISS
130 N 18th St., Suite 1600
Philadelphia, PA 19103
Phone: (215) 735-2098
Defendant-Respondent City of Reading is represented by:
Frederick Thomas Lachat, III, Esq.
CITY OF READING LAW DEPARTMENT
815 Washington St., Room 239
Reading, PA 19601-3615
Phone: (610) 655-6208
REALTYSHARES INC: Church's Chicken Franchise Involved in Suit
-------------------------------------------------------------
Keith Lawrence, writing for Messenger Inquirer, reports that it
looks like that Church's Chicken franchise that was supposed to be
coming to Gateway Commons is having problems.
New York City-based Rosen Law Firm, which describes itself as a
"global investor-rights law firm," announced recently that it has
filed a class-action lawsuit "on behalf of purchasers of the
securities of RealtyShares, Inc., relating to loans involving
Franchise Growth LLC, including the loan regarding the Church's
Chicken in Owensboro, KY." [GN]
RICHEMONT NORTH: Faces Fischler ADA Class Suit in E.D. New York
---------------------------------------------------------------
A class action lawsuit has been filed against Richemont North
America, Inc. The case is styled as Brian Fischler, Individually
and on behalf of all other persons similarly situated, v. Richemont
North America, Inc., doing business as: Peter Millar, Case No.
1:20-cv-00980 (E.D.N.Y., Feb. 23, 2020).
The Plaintiff accuses the Defendant of violating the Americans with
Disabilities Act.
Richemont North America Inc. manufactures luxury goods. The Company
provides wholesale distribution of jewelry, precious stones and
metals, costume jewelry, watches, clocks, and silverware.[BN]
The Plaintiff is represented by:
Christopher Howard Lowe, Esq.
LIPSKY LOWE LLP
420 Lexington Avenue, Suite 1830
New York, NY 10170
Phone: (212) 764-7171
Email: chris@lipskylowe.com
SAINT-SAUVEUR VALLEY: Court Narrows Claims in Goldberg VFTA Suit
----------------------------------------------------------------
The United States District Court for the District of Vermont issued
an amended opinion and order denying Defendant SAINT-SAUVEUR VALLEY
RESORTS, INC.'s motion to strike and granting in part and denying
in part Defendant's motions to dismiss the third amended complaint
filed by the Plaintiff in the case captioned MICHAEL I. GOLDBERG,
as Court-Appointed Receiver in Securities and Exchange Commission
v. Ariel Quiros et al., U.S. District Court of South Florida, Case
No. 16-cv-21301-Gayles, Plaintiff, v. LOUIS DUFOUR, LOUIS P.
HEBERT, and SAINT-SAUVEUR VALLEY RESORTS, INC., Defendants, Case
No. 2:17-cv-00061 (D. Vt.).
Plaintiff Michael I. Goldberg, Esq. brings this action as a
court-appointed receiver on behalf of Jay Peak Hotel Suites LP
(Phase I) and Jay Peak Hotel Suites Phase II LP (Phase II), which
were formed pursuant to the federal EB-5 Immigrant Investor Program
(EB-5 Program) in order to facilitate investment in Jay Peak, Inc.,
a Vermont corporation which was the owner of a ski resort in Jay,
Vermont (Resort). Saint-Sauveur Valley Resorts, Inc., currently
known as Valley Summits, Inc. (SSVR), sold Jay Peak to Ariel Quiros
and his corporation, Q Resorts, Inc. (Q Resorts).
In his Third Amended Complaint ("TAC"), Plaintiff asserts the
following claims against SSVR as well as proposed Defendants Louis
Dufour and Louis Hebert: Count One: breach of fiduciary duty and
Count Two: violations of the Vermont Fraudulent Transfer Act
("VFTA"), 9 V.S.A. Sections 2288 and 2289. Although framed as
separate counts as opposed to remedies, in Count Three Plaintiff
seeks exemplary damages and in Count Four he seeks a constructive
trust.
Pending before the court is SSVR's motion to strike unauthorized
new parties and claims from the TAC and its motion to dismiss the
same, as well as Defendants Dufour's and Hebert's separate motion
to dismiss the TAC. Plaintiff is represented by Joshua L. Simonds,
Esq., and Keith L. Miller, Esq. Defendants are represented by David
M. Pocius, Esq., and Laurence May, Esq.
Fraudulent Transfer Act (VFTA)
Whether Plaintiff has Standing to Bring His Claims Against
Defendants
Defendants argue that Plaintiff lacks standing to bring his claims
because those claims are based on injuries allegedly suffered by
the individual Phase I and II investors, and Plaintiff does not
allege that he was appointed to represent the interests of
individual investors allegedly harmed by the purported conduct set
forth in the SEC Action.
The Receivership Order authorizes Plaintiff to institute such
actions and legal proceedings, for the benefit and on behalf of the
Corporate Defendants including Phase I and II LPs and their
investors as Plaintiff deems necessary. Based on the plain language
of the Receivership Order, Plaintiff's appointment includes
instituting legal actions on behalf of the Phase I and II
investors, including requesting a constructive trust on their
behalf.
The court therefore DENIES Defendants' motions to dismiss on the
basis that the Receivership Order does not grant Plaintiff
authority to pursue damages claims for Phase I and Phase II
investors.
Whether Plaintiff's Fiduciary Duty Claim Should Be Dismissed
SSVR contends it had no duty to Phase I and II investors and thus
Plaintiff cannot assert a breach of fiduciary duty claim against
it.
Plaintiff counters that the court has already upheld his breach of
fiduciary duty claim against SSVR and that he has now pled that
SSVR took direct action, which caused injury to the Phase I and
Phase II limited partnerships.
Under Vermont law, officers or agents of a corporation may be held
independently liable for a corporation's misconduct if they
directed or participated actively in the commission of a tortious
act or an act from which a tort necessarily follows or may
reasonably be expected to follow.
In alleging a breach of fiduciary duty by Defendants, Plaintiff
makes this type of claim:
The Defendants breached their fiduciary duty as follows:
a. Taking conscious and affirmative steps to release escrowed
funds and transfer them into the custody and control of Quiros
prior to the closing contemplated under the STA.
b. Having improperly relinquished control of investor funds to
Quiros, consciously taking receipt of these same previously
escrowed funds as payment for the sale of the shares of Jay Peak to
QResorts, when they knew that such monies were the property of
Phase I and II and the investors in Phase I and Phase II.
c. Absconding with such funds and removing them from the U.S. in
order to defeat Phase I and Phase II and Phase I and Phase II
investors'[] right and opportunity to recover such improperly
transferred funds.
At the motion to dismiss stage, the court assesses only the
plausibility of Plaintiff's claims; it does not weigh the evidence
nor evaluate the likelihood that Plaintiff will prevail. The TAC
plausibly alleges that Defendants SSVR, Dufour, and Hebert, through
active participation or cooperation in a positively wrongful act of
commission by JPM and Mr. Stenger, caused Phase I and II investors
an injury directly and proximately caused by a fiduciary breach
which they aided and abetted.
Defendants' motions to dismiss Plaintiff's breach of fiduciary duty
claim (Count One) must be DENIED.
Whether Plaintiff Plausibly Alleges VFTA Claims
Defendants challenge Plaintiff's VFTA claims for failure to state a
claim, asserting that no transfer has been plausibly alleged; SSVR
was a subsequent transferee of Phase I and Phase II property,
having allegedly received the funds as a second or perhaps third
generation transferee and Plaintiff has not identified any existing
creditors of the Phase I and Phase II partnerships at the time of
the transfers, alleging only that the transfers were fraudulent as
to limited partners, who by definition are not creditors and most
of whom did not even exist at the time of the alleged transfers.
Pursuant to 9 V.S.A. Section 2288(a)(1), a transfer made or
obligation incurred by a debtor is voidable as to a creditor if the
debtor made the transfer or incurred the obligation: (1) with
actual intent to hinder, delay, or defraud any creditor of the
debtor.
The TAC alleges:
Defendants, specifically including SSVR and its wholly owned
subsidiary, Jay Peak Management, upon taking receipt and control of
the Phase I and II investor monies, were acting in a capacity as
debtors with respect to those investors, who were their creditors,
to the extent of the tender, control and transfer of such investor
monies.
Although SSVR is correct that Plaintiff occupies the somewhat
unusual position of representing the interests of both alleged
creditors (Phase I and II investors) and the transferor(JPM), the
court will not at this time find that the dual role is dispositive.
If JPM were merely the conduit by which SSVR perpetrated the
alleged fraudulent conveyance, JPM's role in the transfer may be
inconsequential.
The fact that SSVR ultimately received the funds after they had
been transferred several times and is thus a subsequent transferee
is also not grounds for dismissal if the fraudulent scheme routed
them through various intermediaries before they were ultimately
received by SSVR. To the extent a transfer is voidable, a judgment
may be entered against the first transferee of the asset or the
person for whose benefit the transfer was made.
Because neither the Vermont Legislature nor the Vermont Supreme
Court has fleshed out the contours of a Section 2288(a)(1) claim, a
novel claim like Plaintiff's claim against SSVR is better assessed
in the context of a factual record.
The court therefore DENIES SSVR's motion to dismiss Plaintiff's
Section 2288(a)(1) claim.
Whether Plaintiff's Section 2289(a) Claim Should be Dismissed.
SSVR argues that Plaintiff has not adequately alleged a plausible
claim for relief under 9 V.S.A. Section 2289(a) because the TAC
does not allege that Plaintiff's claim on behalf of the Phase I and
II investors arose before the transfer was made or the obligation
was incurred, nor does it assert a claim that SSVR or JPM were
insolvent at the time of the transfer or became insolvent as a
result of the transfer or obligation as required by 9 V.S.A.
Section 2289(a).
Under 9 V.S.A. Section 2289(a), a transfer made or obligation
incurred by a debtor is voidable as to a creditor whose claim arose
before the transfer was made if the debtor made the transfer
without receiving a reasonably equivalent value in exchange for the
transfer and the debtor was insolvent at that time or the debtor
became insolvent as a result of the transfer.
The TAC asserts that it was the Phase I and II partnerships, in
their status as creditors, who became insolvent as a result of the
transfer to Mr. Quiros. This may be a fraudulent conveyance, but it
is not actionable under 9 V.S.A. Section 2289(a).
Accepting the facts pled as true, the TAC does not allege either
the essential elements of a Section 2289(a) claim or sufficient
facts to give rise to a plausible claim for relief consistent with
Fed. R. Civ. P. 9(b)'s pleading standards.
SVR's motion to dismiss Plaintiff's Section 2289(a) VFTA claim
against it is therefore GRANTED and that claim as set forth in
Count Two of the TAC is DISMISSED.
Whether Plaintiff Plausibly Alleges a Claim for Exemplary Damages
In Count Three of the TAC, Plaintiff alleges a claim for exemplary
damages. A claim for exemplary damages may nonetheless be the
subject of a Rule 12(b)(6) motion for failure to state a claim on
the grounds that this type of damages is not available as a matter
of law or because the grounds for such damages have not been
plausibly pled.
Defendants contend that Plaintiff relies on his threadbare and
unexplained allegations that they acted in bad faith and engaged in
fraud, and thus fails to plead that they engaged in outrageous
conduct. (
Although Plaintiff's exemplary damages claim is arguably
conclusory, it is supported by more detailed allegations that it
incorporates by reference. At this nascent phase of the litigation,
the court cannot find as a matter of law that a claim for exemplary
damages has not been plausibly pled based upon Plaintiff's claim
that SSVR aided and abetted and directly participated in a breach
of fiduciary duty with the knowledge and intent of depriving Phase
I and II investors of any recourse and for the purpose of
benefiting itself through the receipt of the purchase price of the
Resort.
Defendants' motion to dismiss Plaintiff's claim for exemplary
damages as set forth in Count Three is therefore DENIED.
Whether Plaintiff Plausibly Alleges a Claim for a Constructive
Trust
Defendants argue that Plaintiff's claim for a constructive trust
must be dismissed because a constructive trust is an equitable
remedy, not a claim for relief, and because Plaintiff's
constructive trust claim is merely a renewal of his dismissed
unjust enrichment claim.
Plaintiff responds that a constructive trust applies to fraudulent
transfers and a breach of fiduciary duty may be imposed in response
and the Receivership Order affirmatively grants him the authority
to recover misappropriated funds in equity and to seek a
constructive trust.
The Vermont Supreme Court has not foreclosed the possibility that a
court may impose a constructive trust in actions other than a claim
for unjust enrichment.
Plaintiff alleges that Defendants participated in a breach of
fiduciary duty with an intent to defraud Phase I and Phase II
investors and should not be allowed to retain the benefits of that
breach. Although Defendants are correct that the court dismissed
Plaintiff's claim for unjust enrichment because Plaintiff's attempt
to obtain the purchase price of Jay Peak, while simultaneously
owning Jay Peak, would result in a double recovery and that concern
remains in the TAC, Plaintiff proposes an elaborate system for
ensuring that no double recovery results.
After the Resort is sold, Plaintiff seeks to disburse the funds
derived from its purchase price in a constructive trust if there
remain funds still necessary to make Phase I and II investors
whole, including any costs, interest and attorneys' fees awarded.
Any remaining monies may and shall be refunded to the Defendants.
Although Defendants challenge Plaintiff's proposal as dependent on
future, contingent, and speculative events, the court cannot find
that a constructive trust is either unavailable as a matter of law
or insufficiently pled in the facts and circumstances of this
case.
The court DENIES Defendants' motions to dismiss Plaintiff's request
for a constructive trust as set forth in Count Four of the TAC.
For these reasons, SSVR's motion to strike Plaintiff's unauthorized
new parties and claims from his TAC is DENIED. SSVR's motion to
dismiss Plaintiff's TAC is GRANTED as to the 9 V.S.A. Section
2289(a) claim in Count Two and DENIED as to the remaining counts.
Defendants Dufour's and Hebert's motion to dismiss Plaintiff's TAC
is GRANTED as to Count Two in its entirety and DENIED as to
Plaintiff's remaining claims.
A full-text copy of the District Court's February 10, 2020 Amended
Opinion and Order is available at https://tinyurl.com/sl42v3l from
Leagle.com.
Michael I. Goldberg, as Court Appointed Receiver in Securities and
Exchange Commission v. Ariel Quiros et al. U.S. District Court of
South Florida, Case No. 16-cv-21301-Gayles, Plaintiff, represented
by Joshua L. Simonds, Esq. , The Burlington Law Practice, Suite
3B126 College Street, Burlington, VT 05401- 1045 PLLC & Keith L.
Miller, Esq. , Law Offices of Keith L. Miller, 58 Winter Street,
4th Floor, Boston, MA 02108, pro hac vice.
Saint-Sauveur Valley Resorts, Inc., Defendant, represented by David
M. Pocius, Esq. , Paul Frank Collins PC, One Church Street,
Burlington, VT 05402-1307 & Laurence May, Esq. , Eiseman Levine
Lehrhaupt & Kakoyiannis, P.C., 805 Third Avenue, New York, New York
10022 Tel 212-752-1000, pro hac vice.
Louis Dufour & Louis P. Hubert, Defendants, represented by David M.
Pocius, Esq. , Paul Frank Collins PC.
SAKS INC: Giordano et al. Sue Luxury Brands Over No Poach Policy
----------------------------------------------------------------
SUSAN GIORDANO, ANGELENE HAYES, and YING-LIANG WANG, on behalf of
themselves and others similarly situated, Plaintiffs v. SAKS
INCORPORATED, SAKS & COMPANY LLC, SAKS FIFTH AVENUE LLC, LOUIS
VUITTON USA INC., FENDI NORTH AMERICA, INC. LORO PIANA & C. INC.,
GUCCI AMERICA, INC., PRADA USA CORP., and BRUNELLO CUCINELLI, USA,
INC., Defendants, Case No. 1:20-cv-00833 (E.D.N.Y., February 14,
2020) is a class action complaint brought by Plaintiffs on behalf
of themselves and all other similarly situated individuals to
challenge an alleged illegal conspiracy among Defendants which
deliberately suppresses the total compensation of SAKS luxury
retail employees.
According to the complaint, the Defendants have entered into
express agreements to eliminate or reduce competition among them
for skilled luxury retail employees by not hiring or attempting to
hire Saks' Luxury Retail Employees without their knowledge or
consent, thereby suppressing the Luxury Retail Employees' total
compensation and imposing unlawful restrictions on their career
mobility.
Pursuant to Federal Rules of Civil Procedure 23(a) and (b)(3),
Plaintiffs brings this action to recover damages, including treble
damages, costs of suit, and reasonable attorneys' fees, and obtain
injunctive relief arising from Defendants' violations of Section 1
of the Sherman Act.
Defendants operate stores that sell luxury retail goods to
consumers. [BN]
The Plaintiffs are represented by:
Innessa Melamed Huot, Esq.
Alex J. Hartzband, Esq.
Patrick J. Collopy, Esq.
FARUQI & FARUQI, LLP
685 Third Avenue, 26th Floor
New York, NY 10017
Tel: 212-983-9330
Fax: 212-983-9331
Emails: ihuot@faruqilaw.com
ahartzband@faruqilaw.com
pcollopy@faruqilaw.com
- and -
Joseph R. Saveri, Esq.
Steven N. Williams, Esq.
Kevin E. Rayhill, Esq.
JOSEPH SAVERI LAW FIRM, INC.
601 California Street, Suite 1000
San Francisco, CA 94108
Tel: (415)500-6800
Fax: (415)395-9940
Emails: jsaveri@saverilawfirm.com
swilliams@saverilawfirm.com
krayhill@saverilawfirm.com
SANCHEZ OIL: Hutchins Seeks OT Pay for Oilfield Personnel
---------------------------------------------------------
JAMES HUTCHINS, individually and on behalf of all others similarly
situated, vs. SANCHEZ OIL & GAS CORPORATION, Case No. 5:20-cv-00195
(W.D. Tex., February 18, 2020) arises from the failure of the
Defendant to pay Plaintiff and all others similarly situated
overtime for hours worked in excess of 40 hours in a single
workweek.
Mr. Hutchins was employed by the Defendant as an oilfield
personnel.
Sanchez Oil & Gas Corporation is a large oil and gas company
operating throughout the United States, and in Texas. [BN]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: 713-352-1100
Facsimile: 713-352-3300
- and –
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: 713-877-8788
Facsimile: 713-877-8065
SANOFI-AVENTIS US: Bond Suit Moved From D. Mass. to S.D. Florida
----------------------------------------------------------------
The case captioned as Jennifer Bond, on behalf of herself and all
others similarly situated, v. Sanofi-Aventis U.S. LLC, Sanofi US
Services Inc., Chattem Inc., Boehringer Ingelheim Pharmaceuticals,
Inc., GlaxoSmithKline LLC, Case No. 1:19-cv-12471, was transferred
from the U.S. District Court for the District of Massachusetts to
the U.S. District Court for the Southern District of Florida on
Feb. 21, 2020.
The Florida District Court Clerk assigned Case No. 9:20-cv-80254 to
the proceeding.
The nature of suit is stated as Other Fraud.
Sanofi-Aventis U.S. LLC develops, manufactures,, and markets
pharmaceutical products. Areas that Sanofi US cover include
cardiovascular disease, central nervous system ailments, and
metabolic disorders.[BN]
SASOL LTD: Pomerantz Law Firm Reminds Investors of April 6 Deadline
-------------------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against Sasol Limited (SSL) and certain of its officers. The class
action, filed in United States District Court for the Southern
District of new, and indexed under 20-cv-01008, is on behalf of a
class consisting of all persons and entities other than Defendants
who purchased or otherwise acquired Sasol securities between March
10, 2015 and January 13, 2020, both dates inclusive (the "Class
Period"), seeking to recover damages caused by Defendants'
violations of the federal securities laws and to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder,
against the Company and certain of its top officials.
If you are a shareholder who purchased Sasol securities during the
class period, you have until April 6, 2020 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 9980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and the number of shares purchased.
Sasol was founded in 1950 and is headquartered in Johannesburg,
South Africa. Sasol operates as an integrated chemical and energy
company in South Africa. The Company operates through Mining,
Exploration and Production International, Energy, Base Chemicals,
and Performance Chemicals segments.
On October 27, 2014, Sasol announced the construction of a of an
$8.1 billion ethane cracker and derivatives complex in Lake
Charles, Louisiana, dubbed the Lake Charles Chemicals Project
("LCCP"). According to the Company, the LCCP includes seven
manufacturing units, some of which are in continued development,
including the low-density polyethylene ("LDPE") facility and
Ziegler alcohol, ethoxylates and Guerbet alcohol facilities, among
others.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) Sasol had conducted
insufficient due diligence into, and failed to account for multiple
issues with, the LCCP, as well as the true cost of the project;
(ii) construction and operation of the LCCP was consequently
plagued by control weaknesses, delays, rising costs, and technical
issues; (iii) these issues were exacerbated by Sasol's top-level
management, who engaged in improper and unethical behavior with
respect to financial reporting for the LCCP and the project's
oversight; (iv) all the foregoing was reasonably likely to render
the LCCP significantly more expensive than disclosed and negatively
impact the Company's financial results; and (v) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
On June 6, 2016, Sasol reported "that the expected total capital
expenditure for the [LCCP] could increase up to US$11 billion,
including site infrastructure and utility improvements"; a slower
rate of capital "resulted in an extended project schedule and
contributed to further project cost increases"; "[t]he expected
returns for the project have reduced due to changes in long-term
price assumptions and the higher capital estimates"; and "[t]he
increase in the estimated LCCP capital cost and extended schedule
will reduce the expected project returns by approximately the same
amount as the Company's lower long-term price assumptions."
Following these disclosures, Sasol's American depositary receipt
("ADR") price fell $3.53 per share, or 10.99%, to close at $28.60
per share on June 6, 2016.
On May 22, 2019, during pre-market hours, Sasol disclosed that "the
cost estimate for the LCCP has been revised to a range of $12,6 to
$12,9 billion which includes a contingency of $300 million." Sasol
cited a $530 million change in the project's cost forecast because
of a "[c]orrection for duplication of investment allowances of
approximately $230 million"; a "[c]orrection for certain contracts
and variation orders managed by Sasol, outside the primary
engineering, procurement and construction contract, of
approximately $180 million"; and forecast improvements that were
"not expected to be realised and adjustments for potential
insurance claims and procurement back-charges of approximately $120
million."
Following these disclosures, Sasol's ADR price fell $4.50 per
share, or 14.93%, to close at $25.64 per share on May 22, 2019.
Later, on August 16, 2019, during pre-market hours, Sasol issued a
press release disclosing that it was delaying the announcement of
its 2019 financial results because of "possible LCCP control
weaknesses."
On this news, Sasol's ADR price fell $0.74 per share, or 4.02%, to
close at $17.67 per share on August 16, 2019.
Then, on October 28, 2019, Sasol disclosed that its review of the
LCCP control weaknesses had brought to light "errors, omissions,
and inaccuracies in the [LCCP] cost estimate," and a number of
unethical and improper reporting activities that took place at the
highest level of management. Sasol also announced the resignation
of, inter alia, its Joint Presidents and Chief Executive Officers
("CEOs"), effective November 1, 2019, and Senior Vice Presidents
and others previously in charge of the LCCP.
Finally, on January 14, 2020, Sasol issued a press release
confirming that on January 13, 2020, the Company "experienced an
explosion and fire at its LCCP low-density polyethylene (LDPE)
unit." Sasol stated that "[t]he unit was in the final stages of
commissioning and startup when the incident occurred" and "has been
shut down and an investigation is underway to determine the cause
of the incident, the extent of the damage and resulting impact on
the LDPE unit's [beneficial operation] schedule."
Following these disclosures, Sasol's ADR price fell $1.70 per
share, or 7.84%, over the following two trading days, closing at
$19.99 per share on January 15, 2020.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris, is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
http://www.pomerantzlaw.com/[GN]
SCOTTS COMPANY: Hamsher Suit Settlement Gets Final Court Approval
-----------------------------------------------------------------
The United States District Court for the Southern District of New
York issued an Order granting Plaintiff's Motion for Final Approval
of the Class Action Settlement in the captioned GERAMIE HAMSHER,
Individually and on Behalf of All Others Similarly Situated,
Plaintiff, v. THE SCOTTS COMPANY, LLC, and EG SYSTEMS, INC.,
Defendants, Case No. 17-cv-4206 (VSB) (S.D.N.Y.).
According to the ruling, Plaintiff's Motion for Certification of
the Settlement Class, Final Approval of the Class Action
Settlement, and Approval of the FLSA Settlement, is GRANTED. The
Court certifies the following class for settlement purposes:
All Territory Service Representatives employed by Defendants in New
York who, during any workweek between June 5, 2011 and December 31,
2016, had their overtime pay calculated pursuant to the fluctuating
workweek method.
The Court further confirms as final its certification of the above
Class as an FLSA collective action for purposes of settlement. The
Court also confirms the appointment of Plaintiff Geramie Hamsher as
a representative of the Class, both under Federal Rule of Civil
Procedure 23 and 29 U.S.C. Section 216(b), and confirms as final
the appointment of Galvin Kennedy of Kennedy Hodges L.L.P. as Class
Counsel for the Class pursuant to Federal Rule of Civil Procedure
23 and 29 U.S.C. Section 216(b). Finally, the Court approves the
settlement agreement as set forth in Plaintiff's motion.
The Plaintiff's Motion for Approval of Attorneys' Fees,
Reimbursement of Expenses, Administration Costs, and Service Award,
is GRANTED. The Court awards Class Counsel $356,666.67 in
Attorneys' Fees and $9,649.79 in expenses to be paid in accordance
with the settlement agreement. The Court further awards $5,600 in
settlement administration costs, and $2,500 as an enhancement award
for the named plaintiff Geramie Hamsher, also to be paid in
accordance with the settlement agreement.
The Court dismisses this case with prejudice as to Plaintiff and
all Class members who did not timely exclude themselves from the
settlement, in accordance with the terms of the settlement
agreement, provided, however, that Class members who, as of the
date hereof, have opted in to Vasquez, et al. v. The Scotts
Company, LLC, et al., Case No. 17-cv-60344 (S.D. Fla.), and who did
not timely submit claims forms shall not be deemed to have waived
or released their claims at issue in Vasquez. The Court permanently
enjoins and restrains all members of the Class who did not timely
exclude themselves from asserting any and all claims that were
released pursuant to the settlement agreement, provided, however,
that Class members who, as of the date hereof, have opted in to
Vasquez, et al. v. The Scotts Company, LLC, et al., Case No.
17-cv-60344 (S.D. Fla.), and who did not timely submit claims forms
shall not be so enjoined or restrained. This order shall not bind
the single person who timely excluded himself, namely Andres
Arango.
The Court reserves jurisdiction over this action for the purpose of
supervising the implementation, enforcement, and interpretation of
the Settlement Agreement.
The Clerk of Court is directed to close the open motions at
Documents 52 and 55, and is further directed to terminate this
case.
A full-text copy of the District Court's February 10, 2020 Order is
available at https://tinyurl.com/yx4wgxm3 from Leagle.com.
Geramie Hamsher, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, represented by Don Foty , Kennedy Hodges,
L.L.P. & Galvin B. Kennedy , Kennedy Hodges, LLP, 4409 Montrose
Blvd, Suite 200 Houston, TX 77006
The Scotts Company, LLC & EG Systems, Inc., Defendants, represented
by Juan C. Enjamio - jenjamio@HuntonAK.com - Hunton & Williams,
Ryan Ayers Glasgow - rglasgow@HuntonAK.com - Hunton & Williams LLP
& Shawn Patrick Regan - sregan@HuntonAK.com - Hunton & Williams,
LLP.
SHARED IMAGING: Ranger Labor Suit Removed to E.D. California
------------------------------------------------------------
The case captioned Monica Ranger, individually and on behalf of all
those similarly situated v. SHARED IMAGING, a Limited Liability
Company, and DOES 1 THROUGH 10, inclusive, Case No.
34-2020-00273765-CU-OE-GDS, was removed from the Superior Court of
the State of California for the County of Sacramento to the U.S.
District Court for the Eastern District of California on Feb. 21,
2020.
The District Court Clerk assigned Case No. 2:20-at-00186 to the
proceeding.
The Plaintiff's Complaint seeks damages for alleged violations of
the California Labor Code.[BN]
The Defendants are represented by:
Linda M. Moroney, Esq.
Kara D. Keister, Esq.
GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
Phone: (415) 986-5900
Facsimile: (415) 986-8054
Email: Lmoroney@grsm.com
Kkeister@grsm.com
SHAWCOR PIPELINE: Nugent-Gomez Suit Removed to C.D. California
--------------------------------------------------------------
The case captioned Andrew Nugent-Gomez, individually, and on behalf
of other members of the general public similarly situated v.
SHAWCOR PIPELINE PROTECTION, LLC, an unknown business entity;
SHAWCOR PIPE PROTECTION LLC, an unknown business entity; SHAWCOR,
an unknown business entity; and DOES 1 through 100, inclusive, Case
No. CIVDS2001526, was removed from the Superior Court of the State
of California, County of San Bernardino, to the U.S. District Court
for the Central District of California on Feb. 21, 2020.
The District Court Clerk assigned Case No. 5:20-cv-00356 to the
proceeding.
The Plaintiff's Complaint alleges that ShawCor failed to pay the
Plaintiff all wages due, including all overtime; that ShawCor
failed to provide the Plaintiff with duty-free meal and rest
periods; that ShawCor failed to timely pay the Plaintiff all wages
due and owing during employment and upon termination; that ShawCor
failed to provide the Plaintiff with accurate wage statements as
required under the California Labor Code and Industrial Welfare
Commission Wage Orders; that ShawCor failed to maintain required
payroll records; and that ShawCor, by way of this conduct, engaged
in unfair business practices in violation of Business & Professions
Code.[BN]
The Defendants are represented by:
Terry L. Higham, Esq.
Ronald R. St. John, Esq.
Christopher D. Higashi, Esq.
BARTON, KLUGMAN & OETTING LLP
350 South Grand Avenue, Suite 2200
Los Angeles, CA 90071-3454
Phone: 213-621-4000
Facsimile: 213-625-1832
Email: t.higham@bkolaw.com
rstjohn@bkolaw.com
chigashi@bkolaw.com
SOUTH CAROLINA: Appeal in Hensley Suit Dismissed
------------------------------------------------
In the case, Kenneth and Angela Hensley, on behalf of their minor
child BLH, and all other similarly situated children, Petitioners,
v. South Carolina Department of Social Services, Respondent,
Opinion No. 27941 (S.C.), Judge John Cannon Few of the Supreme
Court of South Carolina vacated the court of appeals' opinion
certifying the proposed class, and dismissed the appeal.
Kenneth and Angela Hensley filed the lawsuit against the South
Carolina Department of Social Services on behalf of their adopted
minor child BLH and a class of approximately 4,000 similarly
situated adopted children. The central allegation of the lawsuit
is that DSS breached an Adoption Subsidy Agreement with the parents
of each member of the class by reducing each parent's adoption
subsidy by $20 a month, beginning in 2002. The circuit court issued
an order finding the Hensleys satisfied the requirements of Rule
23(a) of the South Carolina Rules of Civil Procedure, and
certifying the proposed class. The court of appeals reversed. Judge
Few finds the circuit court's order is not immediately appealable,
and accordingly vacates the court of appeals' opinion and dismisses
the appeal.
Background
BLH was born on Feb. 20, 1997. DSS placed her in foster care with
the Hensleys in April 1997. The Hensleys received a foster care
maintenance subsidy of $675 per month from DSS through the federal
Adoption Assistance and Child Welfare Act of 1980. The Hensleys
adopted BLH in 1999. DSS then entered into an Adoption Subsidy
Agreement with the Hensleys pursuant to 42 U.S.C.A. Section
673(a)(1)(A), which requires the State to enter into adoption
assistance agreements with the adoptive parents of children with
special needs.
The agreement -- entered on a form prepared by DSS -- required DSS
to make a "monthly cash payment" to the Hensleys of $675. The
agreement stated it was made for the purpose of facilitating the
legal adoption of BLH and to aid the adoptive parents in providing
proper care for the child. By its terms, the contract was to be
renewed annually by the adoptive parents and DSS, and the parents
may appeal DSS's decision to reduce, change, or terminate any
adoption subsidy.
In June 2002, the acting director of DSS notified foster and
adoptive parents by letter that DSS would reduce all federally
funded monthly foster care maintenance and adoption subsidies by
$20. In 2004, DSS restored the $20 for foster care maintenance
subsidies but not for adoption subsidies.
In 2011, the Hensleys filed a class action lawsuit in state court
against DSS and its director alleging a violation of the Contract
Clause of the United States Constitution and civil rights
violations under 42 U.S.C.A. Section 1983 (2012). The Defendants
removed the case to federal court. The Hensleys dismissed their
claims against DSS itself but added several former directors as
Defendants. The district court granted the Hensleys' motion for
class certification, denied the remaining Defendants' motion for
summary judgment on the basis of qualified immunity, and denied the
Hensleys' cross motion for summary judgment.
The Fourth Circuit reversed the denial of the Defendants' motion
for summary judgment. It found that when DSS reduced foster care
maintenance subsidies in 2002, it was required by federal law to
also reduce adoption subsidies. The Fourth Circuit remanded the
case for entry of a judgment consistent with this opinion.
While the federal case was on appeal at the Fourth Circuit, on
April 1, 2013, the Hensleys filed the breach of contract action in
state court in Spartanburg County. They claimed DSS breached the
Adoption Subsidy Agreement by reducing the monthly cash payments in
2002, and by not increasing the payment for adoptive parents in
2004 when DSS restored the foster care maintenance subsidy to the
original level. As with the first action, the Hensleys brought the
claim as a class action.
The circuit court held a hearing on class certification and DSS's
motion for summary judgment. It granted the motion for class
certification in an order filed May 29, 2014, and then filed an
amended order on Sept. 16, 2014, certifying the proposed class.
The court denied DSS' motion for summary judgment.
In the September 2014 order, the circuit court required the
Defendant will serve on each class member a Notice of Class Action.
The court later granted DSS' Rule 59(e), SCRCP, motion to amend
its order only on the question of who must provide notice to the
class. In an order filed April 30, 2015, the court ordered the
Hensleys to prepare a proposed notice and submit it to the circuit
court for approval.
DSS appealed the September 2014 order before the circuit court
ruled on DSS' Rule 59(e) motion. The court of appeals stayed the
appeal until the Rule 59(e) motion was resolved. After the circuit
court granted the motion in part on April 30, the court of appeals
proceeded to hear the appeal. The court of appeals found the order
granting class certification was immediately appealable and
reversed on the basis the Hensleys did not satisfy the commonality
requirement of Rule 23(a). The Court granted the Hensleys'
petition for a writ of certiorari.
Under Rule 23(b)(3) of the Federal Rules of Civil Procedure --
which South Carolina specifically did not adopt as a part of its
Rule 23 -- a district court may not certify the type of class
action the Court addresses in the instant unless the court finds
that the questions of law or fact common to class members
predominate over any questions affecting only individual members.
This provision requires the court to balance the efficiency to be
gained from one trial on common issues versus the difficulty to be
suffered by having to conduct individual trials or hearings on
issues that are not common.
Though the Rule 23 does not specifically require the common issues
"predominate," there must be a proper balance between common and
individualized issues in order to achieve the efficiencies the
class procedure was designed to promote. The circuit court
correctly identified two issues common to the claims of all class
members. However, the court has not yet determined which issues
might need individualized trials or hearings. There are several
potentially significant issues that may require individual
treatment. The court of appeals agreed with DSS that the question
will require individualized inquiry.
The exhaustion of administrative remedies question DSS raises is
not whether the Hensleys or any particular class member's parents
completed the administrative appeals process. That would be a
question addressed to the merits. Rather, DSS raises the question
of what process -- if any -- the circuit court must go through to
answer that merits question. If the requirement to exhaust
administrative remedies does not apply in the case, then the court
would have to go through no individualized process. If the
requirement does apply, however, the circuit court may have to
conduct individual trials or hearings. The circuit court did not
address the question, and the question is not before the Court at
this time. The answer to the question will nevertheless affect
whether the case is appropriate for class treatment.
The court of appeals identified other issues that may require
individualized trials or hearings. DSS raises the additional
question of whether the calculation of damages requires significant
individual treatment, or -- as the Hensleys contend -- the damages
can be calculated by simple formula. All of these questions relate
directly to whether the circuit court will ultimately permit the
lawsuit to be maintained as a class action.
Under the circumstances of the case, Judge Few holds that the class
certification order is not immediately appealable. He vacated the
opinion of the court of appeals and dismissed the appeal.
A full-text copy of the Court's Jan. 29, 2020 Order is available at
https://is.gd/4ssgYE from Leagle.com.
Timothy Ryan Langley -- rlangley@hodgelawfirm.com -- and Charles J.
Hodge -- CHodge@hodgelawfirm.com -- Hodge & Langley Law Firm, PC;
and James Fletcher Thompson -- info@JFTlegal.com -- James Fletcher
Thompson, LLC; all of Spartanburg, for Petitioner.
Andrew F. Lindemann -- Andrew@LDH-Law.com -- and Joel Steve Hughes
-- Joel@LDH-Law.com -- Lindemann, Davis & Hughes, PA, of Columbia,
for Respondent.
SPIREON INC: Reyes et al. Seek Minimum Pay, Breaks for Staff
------------------------------------------------------------
The case, AVIMAEL REYES, individually and on behalf of all others
similarly situated v. SPIREON, INC. and DOES 1 through 100,
Defendants, Case No. 30-2020-01131934-CU-OE-CXC (Cal. Super.,
Orange Cty., February 18, 2020), arises from the Defendants'
violations of the Private Attorneys General Act of the California
Labor Code.
According to the complaint, among the Defendants' violations
include failure to pay applicable minimum wages, failure to provide
meal and rest period premiums, and failure to give final wages in
timely manner.
Mr. Reyes and other Class members were employed by the Defendants
as non-exempt, hourly-paid employees in the State of California.
Spireon, Inc. is a provider of fleet and global positioning system
vehicle tracking devices in the U.S., which is also doing business
throughout the State of California, including the County of Orange.
[BN]
The Plaintiff is represented by:
Edwin Aiwazian, Esq.
LAWYERS for JUSTICE, PC
410 West Arden Avenue, Suite 203
Glendale, CA 91203
Telephone: (818) 265-1020
Facsimile: (818) 265-1021
STATE FARM: Court Remands Davis' Motion to Certify Class
--------------------------------------------------------
In the class action lawsuit styled as LINDA DAVIS, individually and
on behalf of all other similarly situated, STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, et al., Case No. 3:19-CV-00466-CRS
(W.D. Ky.), the Hon. Judge Charles R. Simpson III entered an
order:
1. remanding as moot Plaintiff's Motion to Certify Class filed
on July 12, 2019;
2. remanding as moot Defendants' Motion to Dismiss Plaintiff's
First Amended Complaint filed on July 29, 2019;
3. remanding as moot Plaintiff's Motion for Leave to File
Second Amended Complaint filed on September 30, 2019;
Should the parties' proposed class settlement be not approved or
otherwise not concluded, nothing in the Court's Order will preclude
or prejudice a party from refiling any of the above-listed motions,
says the Court.
State Farm is a large group of insurance companies throughout the
United States with corporate headquarters in Bloomington,
Illinois.[CC]
STATEWIDE TRANSPORT: Fails to Pay Overtime Wages, Baker et al Claim
-------------------------------------------------------------------
WENYEA BAKER and SAMMY STEADMAN, individually and on behalf of all
others similarly situated, Plaintiffs v. STATEWIDE TRANSPORT, INC.,
Defendant, Case No. 2:20-cv-00579-ILRL-JCW (E.D. La., February 18,
2020) is a collective action complaint brought against Defendant to
recover unpaid wages, overtime, liquidated damages and other
damages owed to Plaintiffs, together with attorneys' fees, interest
and other reasonable cost.
According to the complaint, the Defendant employed Baker as an
intrastate truck driver and Steadman as a helper and warehouse
worker. Both were paid an hourly rate or salary with no overtime
premium for hours worked in excess of 40 hours in a workweek,
thereby violated the Fair Labor Standards Act.
Statewide Transport, Inc. is in the business of warehousing,
picking up, transporting and delivering goods and packages such as
office products and supplies, industrial goods and products,
pharmaceutical and medical supplies, equipment, parts, financial
documents and goods and products for convention and trade shows.
[BN]
The Plaintiffs are represented by:
Philip Bohrer, Esq.
Scott E. Brady, Esq.
Amanda E. McGowen, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Tel: (225)925-5297
Fax: (225)231-7000
Emails: phil@bohrerbrady.com
scott@bohrerbrady.com
amcgowen@bohrerbrady.com
SUBURBAN PROPANE: Continues to Defend NY & Pennsylvania Suits
-------------------------------------------------------------
Suburban Propane Partners, L.P. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 6, 2020,
for the quarterly period ended December 28, 2019, that the company
continues to defend itself from two class lawsuits, one in New York
and the other in Pennsylvania.
The Partnership's natural gas and electricity business is currently
a defendant in two putative class action suits in the federal
district courts of New York and Pennsylvania.
The complaints allege a number of claims under various consumer
statutes and common law in New York and Pennsylvania regarding
pricing offered to electricity customers in those states.
The complaint in the Pennsylvania action was dismissed in its
entirety by the district court, which dismissal is being appealed
by the plaintiff.
The complaint in the New York action was dismissed in part by the
district court, but causes of action based on the New York consumer
statute and breach of contract were allowed to proceed.
Based on the nature of the allegations under these suits, the
Partnership believes that the suits are without merit and is
defending each of these suits vigorously. With respect to these
pending suits, the Partnership has determined, based on the
allegations and discovery to date, that no reserve for a loss
contingency is required.
The Partnership is unable to reasonably estimate the possible loss
or range of loss, if any, arising from either of these two actions.
Suburban said, "Although any litigation is inherently uncertain,
based on past experience, the information currently available to
the Partnership, and the amount of its accrued insurance
liabilities, the Partnership does not believe that currently
pending or threatened litigation matters, or known claims or known
contingent claims, will have a material adverse effect on its
results of operations, financial condition or cash flow."
No further updates were provided in the Company's SEC report.
Suburban Propane Partners, L.P., through its subsidiaries, engages
in the retail marketing and distribution of propane, fuel oil, and
refined fuels. The company operates in four segments: Propane, Fuel
Oil and Refined Fuels, Natural Gas and Electricity, and All Other.
Suburban Energy Services Group LLC serves as a general partner of
Suburban Propane Partners, L.P. The company was founded in 1945 and
is headquartered in Whippany, New Jersey.
TENNESSEE: Court Stays Proceedings in Suit v. Governor
------------------------------------------------------
In the class action lawsuit styled as JOHN DOES No. 1-3 v. WILLIAM
B. LEE, Governor of the State of Tennessee, in his official
capacity, et al., Case No. 3:19-cv-00532 (M.D. Tenn.), the Hon
Judge Waverly D. Crenshaw, Jr. entered an order on Feb. 18, 2020:
1. granting Defendants' Motion for Stay of Proceedings;
2. directing parties to file a status report on or before June
30, 2020, on the progress of the pending legislation
regarding Tenn. Code Ann. section 40-39-211(c)(3); and
3. denying without prejudice Plaintiffs' Motion to Certify Rule
23(b)(2) Class and Plaintiffs' Motion for Leave to File
Partial Summary Judgment Motion on Ex Post Facto Claim.
The Court said, "While the Tennessee General Assembly considers
House Bill 1583 and Senate Bill 1568, Defendants remain subject to
the Temporary Restraining Order preventing them from enforcing
Tenn. Code Ann. section 40-39-211(c)(3) against Plaintiffs, and
thus neither party will be prejudiced by a stay. Moreover, the most
efficient use of the Court's and the parties' resources is to
temporarily stay all proceedings and deadlines in this case.
Otherwise, as Defendants correctly note, all parties and the Court
risk engaging in unnecessary litigation and class discovery with
the possibility that the entire action would be mooted by the
Tennessee General Assembly enacting these bills."[CC]
TERMINAL OPERATIONS: Westfield Won't Cover BIPA Class Suit Costs
----------------------------------------------------------------
In the case, WESTFIELD INSURANCE COMPANY, Plaintiff, v. TERMINAL
OPERATIONS MANAGEMENT INC. and ANDREW ELLIS, Defendants, Case No.
2020CH02030 (Ill. Cir., Cook Cty., February 19, 2020), the
Plaintiff seeks a declaration that it owes no duty to defend or
indemnify the Defendant Terminal Operations under several insurance
policies issued to it.
Westfield filed the complaint on account of a class action lawsuit
commenced by Andrew Ellis, an employee of the Defendant, alleging
that Terminal Operations violated the Illinois Biometric
Information Privacy Act, 740 ILCS 14/1 by unlawfully collecting his
and other employees' biometric data, specifically fingerprints.
Westfield is an insurance firm incorporated under the laws of the
State of Ohio with its principal place of business located in
Westfield Center, Ohio.
Terminal Operations Management Inc. is a Minnesota corporation
which conducts business in Illinois and offers a diverse package of
services for managing complex intermodal terminals. [BN]
The Plaintiff is represented by:
Peter G. Syregelas, Esq.
Lauren E. Rafferty, Esq.
LINDSAY, PICKETT & POSTEL, LLC
10 S. LaSalle St., Suite 1301
Chicago, IL 60603
Facsimile: (312) 629-1404
TERRACES AT PARK: Faces Hill Suit Over Improperly Paid Wages
------------------------------------------------------------
BRITTANY HILL, an individual, on behalf of herself and all other
aggrieved employees v. TERRACES AT PARK MARINO LP, and DOES 1
through 100, inclusive, Case No. 20GDCV00113 (Cal. Super., Los
Angeles Cty., Jan. 30, 2020), seeks penalties for improperly paid
wages pursuant to the Labor Code Private Attorneys General Act.
The case is only a PAGA Complaint, pursuant to California Labor
Code, on behalf of Representative Plaintiff and all other persons
similarly situated, who worked for the Defendants in their
California locations as non-exempt hourly employees for: failure to
pay straight and overtime compensation, failure to provide meal
periods, failure to provide rest breaks, and failure to pay minimum
wage.
The Plaintiff was employed by the Defendants from Jan. 21, 2019,
until June 19, 2019.
The Terraces at Park is an assisted living community in the San
Gabriel Valley, at the foothills of San Gabriel Mountains.[BN]
The Plaintiff is represented by:
Haig B. Kazandjian, Esq.
Cathy Gonzalez, Esq.
Kevin P. Crough, Esq.
HAIG B. KAZANDJIAN LAWYERS, APC
801 North Brand Boulevard, Suite 970
Glendale, CA 91203
Telephone: 818 696 2306
Facsimile: 818 696 2307
TEXAS PRIDE: Revalee Sues over Unpaid Overtime Wages
----------------------------------------------------
DANIEL REVALEE, individually and on behalf of all others similarly
situated, Plaintiff v. TEXAS PRIDE SEPTIC, INC. and ROBIN MORAN,
Defendants, Case No. 4:20-cv-00549 (S.D. Tex., February 18, 2020)
is a collective action complaint brought against Defendant for its
alleged failure to pay overtime to their employees, including
Plaintiff, in violation of the Fair Labor Standards Act.
Plaintiff Revalee was employed by Defendants as a day-rate employee
and performed as a septic repair tech and driver at Defendants'
Spring, Texas facility.
According to the complaint, Defendants practice a policy of paying
their employees a day-rate with no overtime pay for hours worked in
excess of 40 in a workweek.
The plaintiff seeks to recover the unpaid wages, liquidated
damages, and other damages owed to these workers, together with
attorneys' fees, interest, and costs of these proceedings.
Defendant Moran is the owner and manager of Texas Pride.
Texas Pride Septic, Inc. is a septic systems cleaning and repair
business. [BN]
The Plaintiff is represented by:
Tran Q. Tran, Esq.
TRAN LAW FIRM, LLP
2537 S. Gessner, Suite 104
Houston, TX 77063
Tel: (713)223-8855
Fax: (713)623-6399
Email: ttran@tranlawllp.com
- and -
Philip Bohrer, Esq.
Scott E. Brady, Esq.
Amanda E. McGowen, Esq.
BOHRER BRADY LLC
8712 Jefferson Highway, Ste. B
Baton Rouge, LA 70809
Tel: 225-925-5297
Fax: 225-231-7000
Emails: phi@bohrerbrady.com
scott@bohrerbrady.com
amcgowen@bohrerbrady.com
TITAN STAIRS: Court Certifies Laborers Class in Paul Suit
---------------------------------------------------------
In the class action lawsuit styled as NATHANIEL PAUL, on behalf of
himself and others similarly situated v. TITAN STAIRS & TRIM, INC.,
KENDALL D. PRISBREY and KODY PRISBREY, Case No. 4:19-CV-00076 (D.
Utah), the Hon. Judge Paul Kohler entered an order on Feb. 19,
2020:
1. conditionally certifying as a class pursuant to the Fair
Labor Standards Act the following persons:
"all current and former hourly-paid store clerks/laborers
or other persons with another title that performs or
performed similar duties as store clerks/laborers
employed by the Defendants at any time from September 13,
2016 to the present";
2. approving Notice and Consent for each putative member to
join the lawsuit;
3. directing Defendants within 10 business days of this Order,
to deliver to Plaintiff's counsel an electronic database
that contains the names, last known mailing address,
telephone numbers, and email address (if available) of all
persons who meet the class definition;
4. directing Plaintiff's counsel to mail and/or email the
Notice and Consent to the persons on the FLSA Class List and
shall provide notice to Defendants' counsel of the date of
the distribution of the Notice; and
5. directing each person on the FLSA Class List who wishes to
join this lawsuit shall file a Consent with the Court within
30 days of the date that the Notice and Consent are first
mailed and/or emailed by Plaintiff's counsel or shall
otherwise be excluded from the Class.
Titan Stairs specializes in the remodeling of stair railings.[CC]
TONOGA INC: N.Y. App. Div. Upholds Class Certification in Burdick
-----------------------------------------------------------------
The Appellate Division of the Supreme Court of New York, Third
Department, issued an Opinion affirming the Supreme Court's Order
granting Plaintiffs' Motion for Class Certification in the case
captioned Jay Burdick et al., on Behalf of Themselves and All
Others Similarly Situated, Respondents, v. Tonoga, Inc., Doing
Business as Taconic, Appellant, Case No. 527117, (N.Y. App. Div.).
Defendant has owned and operated a manufacturing facility located
in the Town of Petersburgh, Rensselaer County. Defendant's
manufacturing process involved the use of the chemical compounds
perfluorooctanoic acid and its predecessor ammonium
perfluorooctanoate (hereinafter jointly referred to as PFOA), as
well as perfluorooctanesulfonic acid and its predecessor
perflourooctane sulfonate (hereinafter jointly referred to as PFOS)
to make water resistant materials.
Plaintiffs, residents of the Town, commenced the lawsuit as a
proposed class action, alleging that defendant's use and improper
disposal of PFOA and PFOS caused personal injury and property
damage.
Plaintiffs moved for class action certification pursuant to CPLR
article 9.
Supreme Court granted plaintiffs' motion, certifying all four
classes and appointing class representatives.
Defendant appeals.
The issues in the case stem from Supreme Court's determination with
regard to three of these prerequisites, namely, whether there are
questions of law or fact common to the class which predominate over
any questions affecting only individual members, whether the claims
or defenses of the representative parties are typical of the claims
or defenses of the class and whether a class action is superior to
other available methods for the fair and efficient adjudication of
the controversy.
The commonality prerequisite requires predominance of common
questions over individual questions, not identity or unanimity of
common questions, among class members.
The common issues must be capable of class wide 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.
In support of their claim that there were common questions of law
or fact supporting the motion for class certification, plaintiffs
relied on the opinions offered by an environmental engineer, a
physician, an epidemiologist and an economist. According to
plaintiffs' experts, the overwhelming source of PFOA contamination
in the Town's drinking water was defendant's facility and that it
was highly likely that properties within a seven-mile radius of
defendant's facility were contaminated by particulates that had
been released from defendant's facility.
In opposition to plaintiffs' motion, defendant submitted countering
opinions by an economist, toxicologist, a geologist and a
physician. According to defendant's economist, there was no
evidence that the housing market has been negatively affected by
the contamination, the existence of PFOA had not diminished the use
or enjoyment of the properties and certain unique characteristics
and uses of contaminated properties militated against determining
damages on a class wide basis.
Mindful that CPLR article 9 was intended to be a liberal remedy and
given broad construction, the Appellate Court agrees with Supreme
Court's determination to certify the three classes asserting
property damage claims and the medical monitoring class.
Primarily, defendant challenges the court's basic premise that
defendant did not dispute that its facility was the source of the
contamination. Plaintiffs' expert did opine, however, that whether
defendant was the source of contamination could be determined
through meteorological and topographic data, among other things,
and that defendant was the likely source of contamination. For his
part, defendant's expert claims that there are other facilities in
the region, but he does not directly rebut or even acknowledge the
claim of plaintiffs' expert.
The Appellate Court opines that plaintiffs' submissions establish
that there are common questions of law or fact regarding whether
defendant negligently discharged PFOA and PFOS and whether such
negligent conduct caused property values to fall or the quality of
life to suffer. Defendant's argument that individual class members
will have different damages, though likely true, does not alter
this conclusion, the Appellate Court points out.
Even if, after determining the answers to these common questions,
it becomes clear that questions peculiar to each individual may
remain or that there are varied damages suffered among class
members, class certification is still permissible, the Appellate
Court says.
The Appellate Court agrees with Supreme Court's determination that,
in addition to those questions common to the property classes, the
answers to certain additional common questions will be applicable
to all members of the invasion injury class, for example: (1)
whether medical monitoring is an available remedy; (2) the extent
of the health hazard presented by exposure to PFOA; and (3) whether
the members of the class are at significant increased risk for
disease based on the excess accumulation of PFOA in their bodies.
The Appellate Court agrees with Supreme Court's determination that
the proposed property classes and the medical monitoring class met
the typicality and superiority class certification prerequisites.
The typicality prerequisite is met where a plaintiff's claim
derives from the same practice or course of conduct that gave rise
to the remaining claims of other class members and is based upon
the same legal theory.
Accordingly, the Appellate Court upholds the order of the Supreme
Court on class certification in the Burdick case.
A full-text copy of the Appellate Court's November 21, 2019 Opinion
available at https://tinyurl.com/tugu37r from Leagle.com
Greenberg Traurig, LLP, Albany ( Henry M. Greenberg -
greenbergh@gtlaw.com - of counsel), for appellant.
Weitz & Luxenberg, PC, New York City ( James J. Bilsborrow 700
Broadway, New York, NY 10003, of counsel), for respondents.
Mayer Brown LLP, Washington, DC ( Andrew J. Pincus -
apincus@mayerbrown.com - of counsel), for Chamber of Commerce of
the United States of American, amicus curiae.
TOYOTA MOTOR: Boulom Sues Over RAV4 Vehicles' Fuel Tank Defect
--------------------------------------------------------------
STEVEN BOULOM, KATHLEEN CHAMPIGNY, and ALANNA FARBER, individually,
and on behalf of a class of similarly situated
individuals v. TOYOTA MOTOR SALES, U.S.A., INC., a California
corporation, TOYOTA MOTOR NORTH AMERICA, INC., a California
corporation, and TOYOTA MOTOR CORPORATION, a Japanese corporation,
Case No. 2:20-cv-00999 (C.D. Cal., Jan. 30, 2020), alleges that
Model year 2019 and 2020 Toyota RAV4 Hybrid vehicles contain a
defect that prevents the gas tank from being filled to capacity.
According to the complaint, Toyota advertises the RAV4 Hybrid as
having a 14.5 gallon tank. However, a flaw in the fuel system
routinely prevents the Subject Vehicles from accepting more than 10
gallons of gas, often times far less, before the pump is triggered
to prematurely shut off, even when the low fuel light is
illuminated (Fuel Tank Defect).
The Fuel Tank Defect effectively reduces the usable tank capacity
of these hybrid SUV's to 10 gallons or less, drastically reducing
their driving range, a major selling point and for which customers
pay a premium.
As a result of the Fuel Tank Defect, the Plaintiffs assert, the
Vehicles fail to comply with federal and state regulations
including the California Consumer Legal Remedies Act, and the
California Unfair Competition Law, and breached Implied Warranty of
Merchantability and Express Warranty.
The Plaintiffs contend that despite knowing about the Fuel Tank
Defect, the Defendants do not warn purchasers and lessees of the
defect. Instead, the Defendants continue to expressly and impliedly
represent that the Vehicles are well-designed, properly
manufactured, are safe for their intended use, and comply with
federal and state emission regulations. They add that the vehicles
cannot be repaired, even under warranty, because Toyota has not
issued a fix.
The Plaintiffs bring this action to obtain redress and to require
the Defendants to properly inform consumers of the Fuel Tank
Defect. The Plaintiffs allege that they have suffered injury in
fact and lost money or property in the form of purchasing the
Vehicle as a result of the Defendants' alleged unfair business
practices.
The RAV4 is a compact crossover SUV that debuted in model year
1996. RAV4 is Toyota's best-selling vehicle in the United
States.[BN]
The Plaintiffs are represented by:
Steven R. Weinmann, Esq.
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
Trisha K. Monesi, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Steven.Weinmann@capstonelawyers.com
Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
Trisha.Monesi@capstonelawyers.com
TOYOTA MOTOR: Emerson Firm Probing Claims Over Brake Assembly
-------------------------------------------------------------
Emerson Firm, PLLC announces a continuing investigation of a hugely
significant issue involving the brake booster pump assembly of
certain Toyota cars. This matter relates to consumers who
purchased or leased one of the following vehicles: 2010-2015 Prius
and Prius PHV, 2012-2015 Prius V, 2012-2014 Camry Hybrid, or
2013-2015 Avalon Hybrid.
If you purchased or leased one of the Toyota cars described above
then you may have claims that can be pursued. It is believed that
Toyota defectively designed and/or manufactured defective brake
booster pump assemblies for these vehicles.
Toyota Motor Corporation is one of the largest automobile
manufacturers in the world and is headquartered and has its
principal place of business in Toyota City, Aichi Prefecture,
Japan. It is the parent company of Toyota Motor Sales, U.S.A., Inc.
which is headquartered in Plano, Texas.
Emerson Firm, PLLC with offices in Houston, TX and Little Rock, AR,
is a law firm specializing in results, integrity, and personal
service. Emerson Firm represents consumers throughout the nation
and has significant class action experience with proven results.
Emerson Firm lawyers have devoted their practice to complex
commercial litigation for almost forty years and have recovered
over a billion dollars for consumers in class actions throughout
the United States.
IMPORTANT: If you purchased or leased one of the cars identified
above then please contact us immediately to protect your rights.
It makes no difference what state you reside in. Send your inquiry
with your complete contact information including phone number and
email address to plaintiffs' counsel, Emerson Firm, PLLC via e-mail
to Tanya Autry (tautry@emersonfirm.com) or John G. Emerson
(jemerson@emersonfirm.com) and we will get back to you to discuss
your situation. [GN]
TOYOTA MOTOR: Ly Sues Over RAV4 Hybrid Vehicles' Fuel Tank Defect
-----------------------------------------------------------------
KEN LY, individually and on behalf of all others similarly situated
v. TOYOTA MOTOR SALES, U.S.A., INC., a Texas corporation; and
TOYOTA MOTOR NORTH AMERICA, INC., a Texas corporation, Case No.
5:20-cv-00640-SVK (N.D. Cal., Jan. 29, 2020), alleges that Model
year 2019 and 2020 Toyota RAV4 Hybrid vehicles contain a defect
that prevents the gas tank from being filled to capacity.
According to the complaint, Toyota advertises the RAV4 Hybrid as
having a 14.5 gallon tank. However, a flaw in the fuel system
routinely prevents the Subject Vehicles from accepting more than 10
gallons of gas, often times far less, before the pump is triggered
to prematurely shut off, even when the low fuel light is
illuminated (Fuel Tank Defect).
The Fuel Tank Defect effectively reduces the usable tank capacity
of these hybrid SUV's to 10 gallons or less, drastically reducing
their driving range, a major selling point and for which customers
pay a premium.
As a result of the Fuel Tank Defect, the Plaintiff asserts, the
Vehicles fail to comply with federal and state regulations,
including the California Consumer Legal Remedies Act, and the
California Unfair Competition Law, and breached Implied Warranty of
Merchantability and Express Warranty.
The Plaintiff contends that despite knowing about the Fuel Tank
Defect, the Defendants do not warn purchasers and lessees of the
Defect. Instead, the Defendants continue to expressly and impliedly
represent that the Vehicles are well-designed, properly
manufactured, are safe for their intended use, and comply with
federal and state emission regulations. He avers that Toyota
designed, manufactured, distributed, sold and leased the Vehicles.
All Vehicles share the Fuel Tank Defect. He adds that the Vehicles
cannot be repaired, even under warranty, because Toyota has not
issued a fix.
The Plaintiff brings this action to obtain redress and to require
the Defendants to properly inform consumers of the Fuel Tank
Defect. The Plaintiff alleges that he has suffered injury in fact
and lost money or property in the form of purchasing the Vehicle as
a result of the Defendants' alleged unfair business practices.
The RAV4 is a compact crossover SUV that debuted in model year
1996. RAV4 is Toyota's best-selling vehicle in the United
States.[BN]
The Plaintiff is represented by:
Ben Barnow, Esq.
Erich P. Schork, Esq.
Anthony L. Parkhill, Esq.
BARNOW AND ASSOCIATES, P.C.
205 W. Randolph Street, Suite 1630
Chicago, IL 60602
Telephone: 312 621-2000
Facsimile: 312 641 5504
E-mail: b.barnow@barnowlaw.com
e.schork@barnowlaw.com
aparkhill@barnowlaw.com
- and -
Timothy G. Blood, Esq.
Leslie E. Hurst, Esq.
Jennifer L. Macpherson, Esq.
BLOOD HURST & O'REARDON, LLP
501 West Broadway, Suite 1490
San Diego, CA 92101
Telephone: 619 338-1100
Facsimile: 619 338-1101
E-mail: tblood@bholaw.com
lhurst@bholaw.com
jmacpherson@bholaw.com
TRAVELERS HOME: Court Tosses Barnhart Insurance Coverage Suit
-------------------------------------------------------------
The United States District Court for the Western District of
Pennsylvania, Pittsburgh dismissed the case captioned MARY
BARNHART, Plaintiff, v. THE TRAVELERS HOME AND MARINE INSURANCE
COMPANY, Defendant, Case No. 2:19-CV-00523-MJH (W.D. Pa.).
Plaintiff, Mary Barnhart, brings this action against Defendant for
Declaratory Relief (Count I), Assumpsit (Count II), and Class
Action Allegations (Count III), because Travelers denied
Underinsured Motorists (UIM) Benefits based upon a regular use
exclusion in its policy.
Travelers moved to dismiss the Complaint pursuant to Fed. R. Civ.
P. 12(b)(6).
Traveler's policy excludes UIM Coverage for bodily injury stating
that it does not provide Uninsured Motorists Coverage or
Underinsured Motorists Coverage for bodily injury sustained: "By
you while occupying or when struck by, any motor vehicle you own or
that is furnished or available for your regular use which is not
insured for this coverage under this policy. This includes a
trailer of any type used with that vehicle."
Barnhart's Complaint avers that the regular use exclusion is
unenforceable pursuant to the Pennsylvania Supreme Court's recent
ruling in Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019).
Standard of Review
When reviewing a motion to dismiss, pursuant to Federal Rule of
Civil Procedure 12(b)(6), the court must accept all factual
allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled
to relief.
At the time of oral argument, the parties agreed that the
disposition of the defense's Motion to Dismiss depends on whether
this Court expands the holding in Gallagher v. GEICO, 201 A.3d 131
(Pa. 2019), which held that a household exclusion in an automobile
insurance policy to preclude stacking of underinsured coverage is
unenforceable to defeat an underinsured insurance claim.
Barnhart asks this Court to hold that a regular use exclusion in
her automobile insurance policy to preclude underinsured coverage
is also unenforceable based upon the Pennsylvania Supreme Court's
reasoning in Gallagher.
Barnhart does not dispute that she cannot recover UIM benefits if
the regular use exclusion is enforceable.
Travelers contends that the Pennsylvania Supreme Court's holding in
Gallagher is distinguishable because the issue in Gallagher
concerned a household exclusion as applied to a waiver of stacked
coverage. The present case concerns a regular use exclusion as
applied to a waiver of UM/UIM benefits.
Travelers argues that Gallagher is distinguishable and that the
Pennsylvania Supreme Court case of Williams v. GEICO Gov't
Employees Ins. Co., 32 A.3d 1195 (Pa. 2011) controls in the present
case. The Williams case upheld the enforceability of the regular
use exclusion to preclude coverage for an underinsured motorist
claim.
In Gallagher, the Pennsylvania Supreme Court held that a motor
vehicle insurance policy's household vehicle exclusion, as applied
to preclude stacking of underinsured motorist benefits, violates
the Pennsylvania Motor Vehicle Financial Responsibility Law
(MVFRL), specifically Section 1738.
As regards Travelers's assertion that the Williams v. Geico case
controls in this case, said case involved denial of UIM coverage
based upon the regular use exclusion. The insured in Williams was a
state trooper who was injured while he was driving in his patrol
car. He filed a UIM claim with GEICO under his personal automobile
insurance policy. GEICO denied UIM coverage based upon the regular
use exclusion under the trooper's personal automobile insurance
policy.
The Pennsylvania Supreme Court upheld the regular use exclusion
stating:
The regular-use exclusion as applied here is neither an implicit
waiver of coverage nor an improper limitation on the statutorily
mandated coverage. Rather, it functions as a reasonable preclusion
of coverage of the unknown risks associated with operating a
regularly used, non-owned vehicle. The regular-use exclusion is not
void as against public policy. A contrary decision is untenable, as
it would require insurers to compensate for risks they have not
agreed to insure, and for which premiums have not been collected.
Presently, the facts of this case align with the Williams decision,
because Barnhart's claim for UIM coverage and benefits from her
accident falls within the regular use exclusion of her automobile
insurance policy, says the Court.
Unlike Gallagher, Barnhart seeks UIM coverage for her injuries from
a regularly used vehicle for which she paid no additional UM/UIM
premiums to Travelers. Thus, the Pennsylvania Supreme Court's
analysis in Williams, regarding the enforceability of the regular
use exclusion, controls in this case. Therefore, Gallagher's
holding does not extend to invalidate the regular use exclusion or
to overturn Williams as the controlling precedent for this case.
Barnhart's argument, against enforceability of the regular use
exclusion, cannot be supported as a matter of law.
Accordingly, the Court, in an Opinion and Order dated October 28,
2019, a full-text copy of which is available at
https://tinyurl.com/yx6jxg48 from Leagle.com, granted Traveler's
Motion to Dismiss the Plaintiff's Complaint.
Because the disposition of the issue depends upon questions of law,
any amendment is deemed futile, the Court held.
MARY BARNHART, Plaintiff, represented by William M. Radcliffe ,
Radcliffe Law, L.L.C. & William M. Martin , Radcliffe Law, L.L.C.,
648 Morgantown Road, Suite B, Uniontown, PA 15401
THE TRAVELERS HOME AND MARINE INSURANCE COMPANY, Defendant,
represented by Brooks R. Foland -BRFoland@mdwcg.com - Marshall
Dennehey Warner Colman & Goggin & Mark L. Hanover , Dentons US LLP,
233 South Wacker Drive Chicago, Illinois 60611, pro hac vice.
TROPHY NUT: Coleman Asks Court to Conditionally Certify FLSA Class
------------------------------------------------------------------
In the class action lawsuit styled as TODD COLEMAN, on behalf of
himself and all others similarly situated v. TROPHY NUT CO., Case
No. 3:19-cv-00374-TMR (S.D. Ohio), Plaintiff moves the Court to
enter an order pursuant to the Fair Labor Standards Act:
a. conditionally certifying this case as a Fair Labor Standards
Act collective action on behalf:
"all former and current hourly employees of Defendant who
engaged in foot bath disinfecting, donning, doffing,
handwashing, hand sanitizing, and/or related travel and who
worked 40 or more hours in any workweek from November 22,
2016 to the conclusion of this matter";
b. directing that notice be sent by United States mail and
email to the proposed class;
c. directing the parties to jointly submit within 14 days a
proposed Notice informing such present and former employees
of the pendency of this collective action and permitting
them to opt into the case by signing and submitting a
Consent to Join Form;
d. directing Defendant to provide within 14 days a Roster of
such present and former employees that includes their full
names, their dates of employment, and their last known home
addresses and personal email addresses;
e. directing that the Notice, in the form approved by the
Court, be sent to such present and former employees within
30 days using the home and email addresses listed in the
Roster;
f. directing Defendant to provide a Declaration that the
produced Roster fully complies with the Court's Order; and
g. providing that duplicate copies of the Notice may be sent
in the event new, updated, or corrected mailing addresses
or email addresses are found for one or more of such
present or former employees.
According to the complaint, Plaintiff and other similarly situated
employees were not paid overtime compensation for all hours they
worked in excess of 40 per week. Specifically, they were not paid
for the time spent performing the necessary and intrinsic
anti-contamination protocol and associated travel.
The Defendant employs non-exempt hourly employees, including
Plaintiff, at its facility in Tipp City, Ohio. Plaintiff and other
similarly situated individuals were employed by Defendant to
process, package, and handle food for human consumption.[CC]
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
TUPPERWARE U.S.: Website Inaccessible to Blind, Guglielmo Claims
----------------------------------------------------------------
JOSEPH GUGLIELMO, on behalf of himself and all others similarly
situated, Plaintiffs v. TUPPERWARE U.S., INC., Defendant, Case No.
1:20-cv-01388 (S.D.N.Y., February 18, 2020) alleges that Defendant
failed to design, construct, maintain, and operate its website to
be fully accessible to and independently usable by Plaintiff and
other blind or visually-impaired people, thereby violated the
rights of Plaintiff under the Americans with Disabilities Act and
the New York City Human Rights Law.
Plaintiff is a blind, visually-impaired handicapped person and a
member of a protected class of individuals under the ADA.
Plaintiff seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
the Defendant's website will become and remain accessible to blind
and visually-impaired consumers.
Tupperware U.S., Inc. is a container and storage company that owns
and operates www.tupperware.com, which offers products and services
for online sale and general delivery to the public. [BN]
The Plaintiff is represented by:
David P. Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201)282-6500
Fax: (201)282-6501
Email: dforce@steinsakslegal.com
ULTA SALON: Medeiros Suit Stayed Pending Approval of Tellez Deal
----------------------------------------------------------------
Judge Troy Nunley of the U.S. District Court for the Eastern
District of California issued an Order granting stay in the case
captioned SHERRI A. MEDEIROS on behalf of herself and all others
similarly situated, Plaintiff, v. ULTA SALON, COSMETICS &
FRAGRANCE, INC., a Delaware corporation, and DOES 1 through 50,
inclusive, Defendants, Case No. 2:18-cv-02947-TLN-AC, (E.D. Cal.).
The Plaintiff filed the Complaint in the Superior Court of
California, County of Solano, Case No. FCS051572 in September 2018.
By November 9, 2018, the Defendant removed the action to the
United States District Court, Eastern District of California, Case
No. 2:18-cv-02947-TLN-AC.
On August 20, 2019, Plaintiff entered into an agreement to become a
named plaintiff in the matter Tellez v. Ulta Salon, Cosmetics &
Fragrance, Inc. pending in the United States District Court,
Southern District of California, Case No. 3:18-cv-02480-CAB-LL
("Tellez"), and to resolve her claims in the Tellez matter. By
October 11, 2019, the Court in Tellez granted preliminary approval
of the class action settlement.
The Parties agree that the similarity of the claims, parties, and
relief sought make it appropriate to stay the proceedings in the
instant action pending an order granting or denying final approval
of the Tellez class action settlement.
Accordingly, Judge Nunley approved a stipulation by the parties
providing that:
1. The Medeiros action in the Eastern District of California is
stayed pending an order granting or denying final approval of the
Tellez class action settlement; and
2. The Bainer Law Firm shall notify the Eastern District Court
of California within ten (10) days of service of any order from
Judge Bencivengo denying or granting final approval of the Tellez
class action settlement.
A full-text copy of the Judge Nunley's November 21, 2019 Order
available at https://tinyurl.com/wnymzwm from Leagle.com
Sherri A. Medeiros, on behalf of herself and all others similarly
situated, Plaintiff, represented by Isandra Y. Fernandez -
isandra@jameshawkinsaplc.com - James Hawkins, APLC &
-james@jameshawkinsaplc.com, James Hawkins APLC.
Ulta Salon, Cosmetics & Fragrance, Inc., a Delaware corporation,
Defendant, represented by Blair A. Copple - bcopple@littler.com -
Littler, Mendelson, P.C.
ULTIMATE FRANCHISES: Janke et al. Seek OT Pay, Breaks for Staff
---------------------------------------------------------------
NICOLE JANKE; DESMONA ARENAS; MARISSA CARRASCO; FAITH RAINES; and
MOES 1 through 1,000, individually and on behalf of all others
similarly situated, Plaintiffs v. ULTIMATE FRANCHISES; GRREAT
GRRIFF; WILLIAM SCOTT GRIFFITHS; RON LOVE; and DOES 1 through 10,
Defendants, Case No. 30-2020-01132208-CU-OE-CXC (Cal. Super.,
Orange Cty., February 19, 2020) is a class action against the
Defendants for violations of California Business and Professions
Code, California Labor Code, and applicable Industrial Welfare
Commission Wage Order.
According to the complaint, the Defendants' violations include
failure to pay all earned minimum, regular rate, and overtime
wages, failure to provide rest and meal periods, and failure to
provide lawful wage statements.
The Plaintiffs were employed by the Defendants as non-exempt
workers at various 18|8 Fine Men's Salons at any time during the
period of four years prior to the filing of the Complaint and up to
the present.
Ultimate Franchises is a men's salon operator which conducts its
business operations primarily in the County of Orange, State of
California
Grreat Grriff is a California corporation doing business primarily
in the State of California and conducts its business operations
primarily in the County of Orange, State of California.[BN]
The Plaintiff is represented by:
Paul J. Denis, Esq.
Ethan E. Rasi, Esq.
DENIS & RASI PC
38 Corporate Park
Irvine, CA 92606
Telephone: (714) 242-4557
Facsimile: (213) 443-9601
UNITED NATURAL: North Country Seeks to Certify Settlement Class
---------------------------------------------------------------
In the class action lawsuit styled as NORTH COUNTRY STORE,
individually and on behalf of a class of all persons or entities
who are similarly situated v. UNITED NATURAL FOODS, INC., Case No.
1:19-cv-00052-WES-LDA (D.R.I.), the Plaintiff asks the Court for an
order:
1. conditionally certifying a Settlement Class consisting of:
"all customers in the United States that paid Defendant one
or more of the Fees at any time within the Class Period";
2. granting preliminary approval of the Settlement and
authorizing Notice to the Settlement Class; and
3. preliminarily appointing Price Armstrong, LLC as class
counsel.
The Plaintiff alleges that UNFI violated the Connecticut Unfair
Trade Practices Act because the Fuel Surcharges imposed by
Defendant were purportedly unrelated to UNFI's actual or increased
fuel costs and UNFI made misrepresentations about -- and did not
disclose -- the true nature and purpose of the Fuel Surcharges.
The Plaintiff also alleges that the Fuel Surcharges breached the
form contracts at issue and was unjustly enriched. UNFI vigorously
contests and denies that it did anything wrong, and contends that
its charging and collection of Fees has always been lawful, proper,
customary, and enforceable.
The Plaintiff is a small business in New York that pursued a
putative class action against UNFI based upon Fuel Surcharges (the
fees). UNFI charged Plaintiff and other customers in connection
with the delivery of food products.[CC]
The Plaintiff is represented by:
Thomas J. Enright, Esq.
ENRIGHT LAW LLC
696 Reservoir Avenue
Cranston, RI 02910
Telephone: (401) 526-2620
E-mail: tom@enrightlawoffice.com
- and -
Oscar M. Price, IV, Esq.
PRICE ARMSTRONG, LLC
2226 1st Avenue South, Suite 105
Birmingham, AL 35233
Telephone: (205) 208-9504
E-mail: oscar@pricearmstrong.com
Attorneys for the Defendant are:
Christian R. Jenner, Esq.
PARTRIDGE SNOW & HAHN LLP
40 Westminster Street, Suite 1100
Providence, RI 02903
Telephone: (401) 861-8200
Facsimile (401) 861-8210
E-mail: cjenner@psh.com
- and -
R. Eric Bilik, Esq.
R. Patrick Dover, Esq.
McGUIREWOODS LLP
50 N. Laura Street, Suite 3300
Jacksonville, FL 32202
Telephone: (904) 798-3200
Facsimile: (904) 798-3207
E-mail: ebilik@mcguirewoods.com
jaiken@mcguirewoods.com
pdover@mcguirewoods.com
jaiken@mcguirewoods.com
UNITED STATES: Settles Phillips Railroad Easement Suit for $514K
-----------------------------------------------------------------
The United States Court of Federal Claims granted final approval of
a settlement agreement in the case captioned RONALD PHILLIPS &
CAROLYN PHILLIPS, FOR THEMSELVES AND AS REPRESENTATIVES OF A CLASS
OF SIMILARLY SITUATED PERSONS, Plaintiffs, v. UNITED STATES OF
AMERICA, Defendant, Case No. 14-208L.
Plaintiffs' claims are based on the conversion of a railroad
corridor in Geneva, Coffee, and Covington counties, Alabama to a
recreational trail. This action was brought on behalf of thirty-two
landowners who collectively own forty-one parcels of land in these
counties. They allege that they were burdened by a railroad
easement.
The court granted plaintiffs' motion for class certification.
Thereafter, the parties engaged in extensive discovery related to
the class members' claims. They indicate that they have negotiated
a proposed settlement agreement that resolves plaintiffs' claims
fully and finally.
The parties submitted a joint motion requesting that this Court
preliminarily approve their proposed settlement for the purpose of
allowing notice of the settlement to the class. They also requested
that thisCourt approve their proposed notice plan and notice of
settlement to be mailed to the class members and schedule a
hearing.
The parties reached an agreement on the amount of property damages,
attorneys' fees and costs, and the applicable interest rates.
Defendant agreed to pay plaintiffs the total sum of $514,384.52,
plus interest accruing on an assumed payment date of March 24,
2019. This amount consists of $179,882.78 in principal for the
value of the property interests allegedly taken, $54,501.75 in
interest through March 24, 2019, and $280,000.00 for reimbursement
of attorneys' fees and costs. The terms of the settlement have been
approved by the authorized representative of the United States
Attorney General. In consideration of the settlement amount,
plaintiffs agree to file a stipulation of dismissal with prejudice
within fourteen days of receipt of payment. They agree inter alia
to release, waive, and abandon all claims against the United
States, its political subdivisions, its officers, agents, and
employees, related to the allegations and claims asserted in the
complaints, including claims for costs, expenses, attorney fees,
and damages of any sort.
The Court reviewed the parties' account of the settlement process
and the terms of the settlement agreement and find that they are
fair, reasonable, and adequate. Neither party objected to the
settlement process and the terms of the settlement at the hearing.
Both parties reviewed the appraisal reports, all class members were
sent a notice, and the parties determined that the terms of the
settlement are in their best interest.
Accordingly, the Court of Federal Claims approved the parties'
proposed settlement agreement in an order dated
November 25, 2019, a full-text copy of which is available at
https://tinyurl.com/urmfw5j from Leagle.com.
RONALD PHILLIPS & CAROLYN PHILLIPS, For Themselves and As
Representatives of a Class of Similarly Situated Persons,
Plaintiffs, represented by Steven Mathew Wald - WALD@SWM.LEGAL -
Stewart Wald & McCulley, LLC.
USA, Defendant, represented by Jessica Michelle Held , U.S.
Department of Justice Environment and Natural Resources Division.
UNIVERSAL CABLE: Fails to Pay Proper Wages, Bailey Claims
---------------------------------------------------------
TEDDRICK BAILEY, Individually and on behalf of all others similarly
situated Plaintiff, v. UNIVERSAL CABLE HOLDINGS, INC. d/b/a
SUDDENLINK COMMUNICATIONS Defendant, Case No. 2:20-cv-00034 (E.D.
Tex., Feb. 12, 2020) is an action on behalf of the Plaintiffs and
the Putative Class Members, who are non-exempt call center
employees, to recover all unpaid overtime, liquidated damages, and
other damages owed under the Fair Labor Standards Act.
Bailey claims that he did not receive compensation for all hours
worked or the correct amount of overtime compensation for all hours
worked in excess of 40 hours per workweek.
Universal Cable Holdings, Inc. d/b/a Suddenlink Communications is a
Foreign For-Profit Corporation, licensed to and doing business in
Texas. The Company provides its customers digital cable, Internet,
phone, and security services throughout the U.S. [BN]
The Plaintiff is represented by:
Clif Alexander, Esq.
Austin W. Anderson, Esq.
Lauren E. Braddy, Esq.
Alan Clifton Gordon, Esq.
Carter T. Hastings, Esq.
John D. Garcia, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
Facsimile: (361) 452-1284
– and –
William S. Hommel, Jr.
HOMMEL LAW FIRM
5620 Old Bullard Road, Suite 115
Tyler, TX 75703
Telephone: 903-596-7100
Facsimilie: 469-533-1618
USAA FEDERAL: Court Requires Info in Eiess Suit Pending Dismissal
-----------------------------------------------------------------
Judge Edward Chen of the U.S. District Court for the Northern
District of California requested information from parties in the
putative class action ELIZABETH EIESS, Plaintiff, v. USAA FEDERAL
SAVINGS BANK, Defendant, Case No. 19-cv-00108-EMC. (N.D. Cal.),
before ruling on the parties Notice of Voluntary Dismissal.
The Court is requesting information from the parties a description
of the scope of publicity and nature of the information shared with
the public and putative class members about the case.
The Court is making the request to ensure that the interests of the
absent plaintiffs are appropriately safeguarded, and to safeguard
against any misplaced reliance on the suit and any consequential
tolling of the statute of limitations pursuant to Federal Rule of
Civil Procedure 23(e).
A full-text copy of the District Court's November 21, 2019 Order
available at https://tinyurl.com/wu732vd from Leagle.com
Elizabeth Eiess, Plaintiff, represented by Jonathan M. Streisfeld -
streisfeld@kolawyers.com - Kopelowitz Ostrow P.A., pro hac vice,
Todd David Carpenter - tcarpenter@carlsonlynch.com - Carlson Lynch
Sweet LLP, Andrea R. Gold - agold@tzlegal.com - Tycko & Zavareei
LLP, Annick Marie Persinger , Tycko & Zavareei LLP, Hassan Ali
Zavareei - hzavareei@tzlegal.com - Tycko & Zavareei LLP, Jeffrey
Douglas Kaliel - jkaliel@kalielpllc.com - Kaliel PLLC, Sophia Goren
Gold - sgold@kalielpllc.com - Kaliel PLLC & Tanya Susan Koshy -
tkoshy@tzlegal.com - Tycko and Zavareei LLP.
USAA Federal Savings Bank, Defendant, represented by Megan Sandra
Webster -megan.webster@mayerbrown.com - Mayer Brown LLP, Elspeth
Victoria Hansen - elspeth.hansen@mayerbrown.com - Mayer Brown LLP &
Thomas Vangel Panoff - tpanoff@mayerbrown.com - Mayer Brown LLP.
VERDE ENERGY: Ct Allows Discovery in Panzer Pending Arbitration Bid
-------------------------------------------------------------------
The United States District Court for the Eastern District of
Pennsylvania issued a Memorandum allowing Discovery Pending
Dismissal or Arbitration Bid in the case captioned SCOTT PANZER, v.
VERDE ENERGY USA, INC. and OASIS POWER, LLC, Civil Action No.
19-3598, (E.D. Pa.).
Plaintiff Scott Panzer filed a putative class action against Oasis
Power, LLC and Verde Energy USA, Inc., asserting claims for breach
of contract, breach of the implied covenant of good faith and fair
dealing, violations of the Pennsylvania Unfair Trade Practices and
Consumer Protection Law and other consumer protection laws, and
unjust enrichment. He alleges that the defendants engaged in
deceptive marketing practices and price gouging of unsuspecting
consumers in the electricity supply market.
The defendants have filed a motion to dismiss or stay based on the
arbitration clause in their customer agreement. They essentially
ask that we compel arbitration. Panzer denies that he received an
agreement from the defendants. He maintains that he is covered by
the agreement he had with the defendants' predecessor and that
agreement had no arbitration provision. The defendants contend that
they mailed Panzer a customer agreement in February 2018 after
Panzer's original energy supplier, non-party Great American Power,
LLC, assigned them his contract. They argue that Panzer's
continuing to use their services and to pay their fees constitutes
his assent to the terms of their customer agreement, including the
arbitration provision.
The court notes that the motion to dismiss standard applies to
motions to compel arbitration "where the existence of a valid
agreement to arbitrate between the parties is apparent from the
face of the complaint or incorporated documents." But, where the
agreement to arbitrate is unclear from the complaint and its
supporting documents, or where the plaintiff has responded with
additional facts that place the existence of a valid agreement to
arbitrate in dispute, the summary judgment standard applies. In
that case, we must allow the parties to conduct limited discovery
on the issue of arbitrability. After this "restricted inquiry," we
review a renewed motion to compel arbitration under the summary
judgment standard.
Panzer disputes the existence of an agreement to arbitrate with the
defendants. In his declaration, he claims that he never received
the defendants' February 2018 letter containing his new customer
service agreement. He states that he never consented to an
arbitration agreement with Great American or the defendants.
"Given this factual dispute, we cannot conclude that Panzer agreed
to arbitrate his claims against the defendants," says the Court.
"Therefore, we shall allow limited discovery on this issue."
"After the parties have conducted discovery, the defendants may
renew their motion to compel arbitration. If they do, we shall
review it under the summary judgment standard," adds the Court.
A full-text copy of the District Court's February 10, 2020
Memorandum is available at https://tinyurl.com/vpylmph from
Leagle.com.
SCOTT PANZER, Plaintiff, represented by MATTHEW D. SCHULTZ -
mschultz@levinlaw.com - LEVIN PAPANTONIO THOMAS MITCHELL RAFFERTY &
PROCTOR PA, WILLIAM F. CASH, III - bcash@levinlaw.com - LEVIN
PAPANTONIO THOMAS MITCHELL RAFFERTY PROCTOR PA, CHANTAL KHALIL -
ckhalil@fbfglaw.com - FINELSTEIN BLANKINSHIP FREI-PEARSON & GARBER
LLP, D. GREG BLANKINSHIP - gblankinship@fbfglaw.com - FINKELSTEIN
BLANKINSHIP FREI-PEARSON & GARBER LLP, NATHAN C. ZIPPERIAN -
nzipperian@sfmslaw.com - SHEPHERD FINKELMAN MILLER & SHAH LLP &
JAMES C. SHAH - jshah@sfmslaw.com - SHEPHERD FINKELMAN MILLER &
SHAH LLC.
VERDE ENERGY USA, INC. & OASIS POWER, LLC, Defendants, represented
by EZRA DODD CHURCH - ezra.church@morganlewis.com - MORGAN LEWIS &
BOCKIUS, LLP.
VILLAGE FORD: Initial Approval of Flores Settlement Sought
----------------------------------------------------------
In the class action lawsuit styled as LARRY FLORES, individually
and on behalf of all others similarly situated v. VILLAGE FORD,
INC., Case No. 2:19-CV-12368 (E.D. Mich.), the Plaintiff asks the
Court for an entry of an order providing for:
1. Preliminary approval of the settlement of the case;
2. Preliminary certification of a Settlement Class consisting
of:
"all individuals (within the United States) (i) who were
sent a prerecorded message(s) (ii) by Affinitiv, Inc. or any
of its predecessors including but not limited to Call
Command and One Command on behalf of Village Ford, Inc.,
(iii) for the purpose of promoting Village Ford, Inc.'s
property, goods, and/or services, (iv) from August 9, 2015
through the date of final approval."
The following are excluded from the Settlement Class: (1)
the trial judge presiding over this case; (2) Village Ford,
as well as any parent, subsidiary, affiliate or control
person of Village Ford, and the officers, directors, agents,
servants or employees of Village Ford; (3) any of the
Released Parties; (4) the immediate family of any such
person(s); (5) any Settlement Class member who has timely
opted-out of this proceeding; and (6) Plaintiff's Counsel
and their employees.
3. Appointment of the Plaintiff as Class Representative and
Plaintiff's counsel as Class Counsel;
4. Approval of the Settlement Administrator, Notice
Administrator and Escrow Agent;
5. Approval of the Notice program describing:
a. The Settlement and the Settlement Class members' rights
with respect to the Settlement;
b. The proposed Release of claims;
c. Class Counsel's request for attorneys' fees and expenses,
as well a Service Award for the Class Representative; and
d. The procedure for opting-out of or objecting to the
Settlement
6. Approval of the Claims process; and
7. The scheduling of a Final Approval Hearing to consider Final
Approval of the Settlement.
The Settlement Agreement establishes an $1,050,000.00 Settlement
Fund, which will also be used to the pay the costs of Settlement
Administration and Notice Administration, says the complaint.
On August 9, 2019, the Plaintiff initiated this litigation against
Village Ford alleging violations of the TCPA, and seeking, inter
alia, monetary damages.[CC]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
SHAMIS AND GENTILE, P.A.
14 NE 1 st Avenue, Suite 400
Miami, Fl 33132
E-mail: ashamis@shamisgentile.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd., Ste. 1400
Fort Lauderdale, FL 33301
E-mail: mhiraldo@hiraldolaw.com
- and -
Michael Leon Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard Suite 120
Fort Lauderdale, FL 33301
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
20900 NE 30 th Avenue, Suite 417
Aventura, FL 33180
E-mail: scott@edelsberglaw.com
- and -
Steven K. Mamat, Esq.
FLOOD, LANCTOT, CONNOR & STABLEIN, PLLC
401 N. Main Street
Royal Oak, MI 48067
WABASH COUNTY, IN: Copeland Suit Seeks to Certify Inmates Class
---------------------------------------------------------------
In the class action lawsuit styled as JERRY COPELAND, JOHN WHITT,
and JAMES DUTTON, on behalf of themselves and a class of those
similarly situated v. WABASH COUNTY, INDIANA; and the WABASH COUNTY
SHERIFF, in his official capacity, Case No. 3:20-cv-00154 (N.D.
Ind.), the Plaintiffs ask the Court for an order:
1. certifying a class of:
"all persons currently confined, or who will in the future
be confined, in the Wabash County Jail"; and
2. appointing their counsel as counsel for the class.
Wabash County is a county located in the northern central part of
the U.S. state of Indiana. Wabash County Sheriff's Office is a law
enforcement company based out of 79 W Main St, Wabash,
Indiana.[CC]
Attorneys for the Plaintiffs and the putative class are
Stevie J. Pactor, Esq.
Kenneth J. Falk, Esq.
ACLU OF INDIANA
1031 E. Washington St.
Indianapolis, IN 46202
Telephone: 317 635-4059
Facsimile: 317 635-4105
E-mail: spactor@aclu-in.org
kfalk@aclu-in.org
WASHINGTON: Court Denies Detainees Class Certification Bid
----------------------------------------------------------
In the case captioned CALVIN MALONE, GEORGE O. MITCHELL, JOHATHAN
PARSONS, RICHARD JACKSON, and JAMES TURNER, Plaintiffs, v. ROBERT
W. FERGUSON, Attorney General of Washington, et. al., Defendants,
Case No. 19-5574 RJB-JRC, District Judge ROBERT J. BRYAN denied
without prejudice Plaintiffs' Motion for Class Certification.
This matter came before the Court on the Report and Recommendation
of U.S. Magistrate Judge J. Richard Creatura. The Court has
considered the Report and Recommendation, objections, and the
remaining record.
The Plaintiffs, pro se civil detainees at the Special Commitment
Center, filed this putative class action on June 24, 2019. They
allege that the Defendants have violated Washington's Minimum Wage
Act, RCW 49.46.010, et. seq., the federal Fair Labor Standards Act,
29 U.C.S. Section 206, et. seq., were unjustly enriched, and
violated the Plaintiffs' constitutional rights when the Defendants
failed to pay the Plaintiffs minimum wage for work performed and
for Defendants' failure to provide "appropriate working gear."
After paying the filing fee, the Plaintiffs were ordered to
indicate to the Court whether they sought the appointment of
counsel. The Plaintiffs did not respond. The Plaintiffs filed a
motion for class certification instead.
On October 30, 2019, the Report and Recommendation was filed,
recommending that the motion for class certification be denied
without prejudice. The Plaintiffs filed objections, asserting that
they now wish to apply for class counsel. They do not directly
address whether the Report and Recommendation should be adopted.
Accordingly, Judge Byran, in an order dated November 18, 2019, a
full-text copy of which is available at
https://tinyurl.com/yx3hklcc from Leagle.com, ordered that:
* The Report and Recommendation IS ADOPTED;
* The Plaintiffs' motion for class certification IS DENIED WITHOUT
PREJUDICE; and
* The case IS RE-REFERRED to Magistrate Judge Creatura for
consideration of the Plaintiffs' motion for
appointment of class counsel and for further proceedings consistent
with this order.
The Clerk is directed to send uncertified copies of the Order to
Magistrate Judge Creatura, all counsel of record, and to any party
appearing pro se at said party's last known address.
Calvin Malone, Plaintiff, pro se.
George O Mitchell, Plaintiff, pro se.
Jonathan Parsons, Plaintiff, pro se.
Richard Jackson, Plaintiff, pro se.
James Turner, Plaintiff, pro se.
WELLS FARGO: Court Narrows Claims in Hernandez Suit
---------------------------------------------------
In the case, ALICIA HERNANDEZ, EMMA WHITE, KEITH LINDNER, TROY
FRYE, COSZETTA TEAGUE, IESHA BROWN, RUSSELL and BRENDA SIMONEAUX,
JOHN and YVONNE DEMARTINO, ROSE WILSON, TIFFANIE HOOD, GEORGE and
CYNDI FLOYD, DEBORA GRANJA, and DIANA TREVINO, individually and on
behalf of all others similarly situated, Plaintiffs, v. WELLS FARGO
BANK, N.A., Defendant, Case No. C 18-07354 WHA (N.D. Cal.), Judge
William Alsup of the U.S. District Court for the Northern District
of California granted in part and denied in part the Plaintiffs'
motion for class certification.
The Plaintiffs all had their mortgage loans serviced by defendant
Wells Fargo Bank. Although they met the Home Affordable
Modification Program ("HAMP") requirements, the Defendant failed to
offer them mortgage modifications. Later, it discovered a
calculation error that had caused certain fees to be misstated and
had resulted in incorrect mortgage modification denials.
The operative complaint makes the following claims: breach of
contract, intentional infliction of emotional distress, wrongful
foreclosure, violation of California's Homeowners Bill of Rights,
violation of California's unfair competition law, and violations of
state consumer protection laws.
Based on these theories, plaintiffs seek to certify the following
nationwide class: All persons who between 2010 and 2018(i)
qualified for a home loan modification or repayment plan pursuant
to the requirements of government-sponsored enterprises (such as
Fannie Mae and Freddie Mac), the Federal Housing Administration,
the U.S. Department of Treasury's Home Affordable Modification
Program; and (ii) were not offered a home loan modification or
repayment plan by Wells Fargo due to excessive attorney's fees
being included in the loan modification decisioning process.
The Plaintiffs also seek to certify a number of state subclasses
based on violations of state consumer protection laws. Of note are
the following California subclasses:
a. California Subclass: All members of the Nationwide Class
whose home was secured by real property located in California.
California Wrongful Foreclosure Subclass: All members of the
California subclass whose home Wells Fargo sold in foreclosure.
In the alternative, the Plaintiffs request that if the
Court holds certification of the nationwide class in abeyance to
test the viability of their assertions that their counsel could
present a common method of proof at trial, then the following
California class should be certified instead:
b. California Class: All persons whose home loan was secured
by real property located in California who between 2010 and 2018(i)
qualified for a home loan modification or repayment plan pursuant
to the requirements of government-sponsored enterprises (such as
Fannie Mae and Freddie Mac), the Federal Housing Administration
(FHA), or the U.S. Department of Treasury's Home Affordable
Modification Program (HAMP); and (ii) were not offered a home loan
modification or repayment plan by Wells Fargo due to excessive
attorney's fees being included in the loan modification decisioning
process.
The Plaintiffs seek leave to amend in connection with their renewed
motion for class certification and in response to the Court's
statement that they should consider the possibility of certifying a
California class while holding a nationwide class in abeyance.
Although the Plaintiffs have been aware of the relevant facts since
before the July 28 deadline to amend, their proposed amended
complaint now seeks to add Sandra Campos, a California resident
whose property was secured by an FHA instrument, reasoning that it
would be prudent to have such a representative to avoid any
conflict between the parties as to whether the Fannie Mae/Freddie
Mac and FHA contracts are so different that two representatives
would be needed.
Given this, Judge Alsup holds that good cause exists for allowing
leave to amend. He granted the motion for leave to file a third
amended complaint.
The Plaintiffs seek certification of a nationwide class for their
breach of contract claim as well as resolution of the issue of
whether the Defendant's conduct was extreme and outrageous for
their intentional infliction of emotional distress claim. They
also seek certification of a California subclass for their
Homeowner Bill of Rights and Section 17200 claim, and a further
California subclass for their wrongful foreclosure claim.
Setting aside the procedural snafus by the Plaintiffs' counsel, the
action will proceed to trial on both liability and damages
together. Certification of the Plaintiffs' proposed classes
denied. Instead, the following nationwide class is certified as to
the breach of contract claim under FRCP 23(b)(3): All persons in
the United States who between 2010 and 2018(i) qualified for a home
loan modification or repayment plan pursuant to the requirements of
government-sponsored enterprises (such as Fannie Mae and Freddie
Mac), the Federal Housing Administration (FHA), the U.S. Department
of Treasury's Home Affordable Modification Program (HAMP); (ii)
were not offered a home loan modification or repayment plan by
Wells Fargo due to excessive attorney's fees being included in the
loan modification decisioning process; and (iii) whose home Wells
Fargo sold in foreclosure.
In other words, the Judge will, on a nationwide basis, determine
the value of the equity lost by each homeowner through a
foreclosure by reason of the failure of Wells Fargo to give notice
of the modification procedure (assuming that it is a breach of
contract). There will not otherwise be a wrongful foreclosure
subclass.
The Plaintiffs seek certification of an issue class that
defendant's conduct was "outrageous" for purposes of their
intentional infliction of emotional distress claim under FRCP
23(c)(4). The Judge holds that the Defendant's conduct could be
considered outrageous in one situation and not the other. Such
individualized inquiries greatly undermine commonality and defeat
class certification. The motion for certification of a nationwide
class as to the issue of whether the Defendant's conduct was
"outrageous" is thus denied.
The Plaintiff has moved for certification of various state
subclasses for violations of their respective state consumer
protection laws. The state consumer laws here are materially
different. Common issues would not predominate and accordingly,
certification of the state subclasses is denied.
The proposed California class would be at most 24 class members,
but likely less as some of these individuals do not plan to
participate in the action. Furthermore, 10 of these individuals
are already represented by the counsel. Joinder would be
practicable and certification of the California classes is denied.
The California wrongful foreclosure class would have at most, 15
members. The Georgia wrongful foreclosure class would have at
most, 18 members. As stated, such classes are not sufficiently
numerous. Certification of the wrongful foreclosure subclasses are
accordingly denied. Damages will be obtainable via the contract
claim.
The Defendant has filed an administrative motion for leave to file
a supplemental brief regarding the calculation of restitution made
by the Plaintiffs' damages expert, Dan Salah. Given the limited
class certification only as to the breach of contract claim, not
Section 17200, the motion is denied as moot.
Based on the foregoing, Judge Alsup granted in part and denied in
part the Plaintiffs' motion for class certification.
He certified the following class: All persons in the United States
who between 2010 and 2018(i) qualified for a home loan modification
or repayment plan pursuant to the requirements of
government-sponsored enterprises (such as Fannie Mae and Freddie
Mac), the Federal Housing Administration (FHA), the U.S. Department
of Treasury's Home Affordable Modification Program (HAMP); (ii)
were not offered a home loan modification or repayment plan by
Wells Fargo due to excessive attorney's fees being included in the
loan modification decisioning process; and (iii) whose home Wells
Fargo sold in foreclosure.
The class is certified only with respect to the breach of contract
claim. The class definition will apply for all purposes, including
settlement. If further discovery is needed as to plaintiff Campos
or any other issue, the Court is amenable to reopen discovery for a
limited period.
The Judge appointed Plaintiffs Granja and Campos as the class
representatives. Michael Schrag of Gibbs Law Group LLP and Richard
Paul of Paul LLP are appointed as the class counsel. The Court
ordered the parties to jointly submit a proposal for class
notification with a plan to distribute notice by first-class mail.
A full-text copy of the Court's Jan. 29, 2020 Order is available at
https://is.gd/VfU8oR from Leagle.com.
Alicia Hernandez, Plaintiff, represented by Richard M. Paul, III --
Rick@PaulLLP.com -- Paul LLP, pro hac vice, Ashlea Gayle Schwarz --
Ashlea@PaulLLP.com -- Paul LLP, pro hac vice, Jeffrey B. Kosbie,
Gibbs Law Group LLP, Laura Catherine Fellows -- Laura@PaulLLP.com
-- Paul LLP, Linda Pham Lam, Gibbs Law Group LLP & Michael Lawrence
Schrag -- mls@classlawgroup.com -- Gibbs Law Group LLP.
Diana Trevino, Coszetta Teague, Yvonne Demartino, George Floyd,
Troy Frye, Russell Simoneaux, Tiffanie Hood, Rose Wilson, Emma
White, Cyndi Floyd, John Demartino, Keith Lindner, Brenda Simoneaux
& Debora Granja, Plaintiffs, represented by Jeffrey B. Kosbie,
Gibbs Law Group LLP, Laura Catherine Fellows, Paul LLP, Linda Pham
Lam, Gibbs Law Group LLP & Michael Lawrence Schrag, Gibbs Law Group
LLP.
Wells Fargo Bank, N.A., Defendant, represented by Amanda L. Groves,
Winston & Strawn LLP, pro hac vice, Gretchen Vetter Scavo, Winston
& Strawn LLP, pro hac vice, Joelle L. Ross, Winston & Strawn LLP,
pro hac vice, Kobi Kennedy Brinson, Winston and Strawn, LLP, pro
hac vice, Stacie Corbett Knight, Winston and Strawn LLP, pro hac
vice, Angela Aziza Smedley -- asmedley@winston.com -- Winston and
Strawn LLP, pro hac vice, Morgan E. Stewart -- mstewart@winston.com
-- Winston and Strawn LLP & Shawn R. Obi -- sobi@winston.com --
Winston Strawn LLP.
Wells Fargo & Company, Defendant, represented by Amanda L. Groves,
Winston & Strawn LLP, pro hac vice & Morgan E. Stewart, Winston and
Strawn LLP.
WPX ENERGY: Merger Docs Lack Financial Advisors' Info, Hudson Says
------------------------------------------------------------------
The case, LINDA HUDSON, on behalf of herself and all other
similarly situated stockholders of WPX ENERGY, INC., Plaintiff v.
RICHARD E. MUNCRIEF, JOHN A. CARRIG, CLAY M. GASPAR, ROBERT K.
HERDMAN, KELT KINDICK, KARL F. KURZ, HENRY E. LENTZ, KIMBERLY S.
LUBEL, VALERIE M. WILLIAMS, DAVID F. WORK, and WPX ENERGY, INC.,
Defendants, Case No. 2020-0095 (Del. Ch., February 14, 2020),
arises from the alleged breach of fiduciary duties among the WPX
board of directors concerning the solicitation of stockholders'
approval of a proposed issuance of WPX common stock shares in
connection with WPX's proposed acquisition of Felix Energy Holdings
II, LLC.
According to the complaint, on December 15, 2019, WPX and Felix
entered into a Securities Purchase Agreement which provides for
WPX's acquisition of 100% of Felix's issued and outstanding
membership interests amounting to approximately $2.5 billion,
consisting of $900 million in cash and 152,963,671 shares of WPX's
common stock.
WPX filed a Definitive Proxy Statement with the U.S. Securities and
Exchange Commission on February 5, 2020. The Proxy Statement
disclosed that WPX engaged two financial advisors, Barclays Capital
Inc. and Tudor Pickering Holt & Co. Advisors LP. The documents
omitted material information pertaining to the two advisors'
potential conflicts of interests in connection with the
Acquisition. The omitted material information is imperative for WPX
stockholders to know to fairly assess the Acquisition and decide
how to vote on the Stock Issuance Proposal.
WPX is an independent oil and natural gas exploration and
production company. [BN]
The Plaintiff is represented by:
Blake A. Bennett, Esq.
COOCH AND TAYLOR, P.A.
The Nemours Building
1007 N. Orange St., Ste. 1120
Wilmington, DE 19801
Tel: (302)984-3800
Email: bbennett@coochtaylor.com
- and -
D. Seamus Kaskela, Esq.
KASKELA LAW LLC
18 Campus Blvd., Ste. 100
Newtown Square, PA 19073
Tel: (484)258-1585
Email: skaskela@kaskelalaw.com
- and -
Alfred G. Yates, Jr., Esq.
LAW OFFICE OF ALFRED G. YATES, JR.
300 Mt. Lebanon Blvd., Ste. 206B
Pittsburgh, PA 15234
Tel: (412)391-5164
Email: yateslaw@aol.com
YUASA BATTERY: Rodriguez Seeks OT Pay for Distribution Staff
------------------------------------------------------------
ROBERTO RODRIGUEZ, individually and on behalf of all others
similarly situated, Plaintiff v. YUASA BATTERY, INC., Defendant,
Case No. 5:20-cv-00889-JFL (E.D. Pa., February 18, 2020) is a class
action against the Defendant for alleged violations of the Fair
Labor Standards Act and the Pennsylvania Minimum Wage Act.
The Plaintiff and all other similarly-situated current and former
employees of the Defendant did not receive compensation for the
time spent donning and doffing protective gear before and after
their scheduled shifts, thereby violating FLSA and PMWA
requirements.
Mr. Rodriguez and Class members were employed by the Defendant as
distribution center employees responsible for the assembly and
packaging of batteries and accessories in and outside of the
Commonwealth of Pennsylvania.
Yuasa Battery, Inc. is a manufacturer of batteries, battery
accessories, and related components with principal place of
business in Laureldale, Pennsylvania. [BN]
The Plaintiff is represented by:
Michael Murphy, Esq.
MURPHY LAW GROUP LLC
Eight Penn Center, Suite 2000
1628 John F. Kennedy Blvd.
Pennsylvania, PA 19103
Telephone: (267) 273-1054
Facsimile: (215) 525-0210
E-mail: murphy@phillyemploymentlawyer.com
[^] CLASS ACTION Money & Ethics Conference on May 4
---------------------------------------------------
Beard Group, Inc. is hosting the 4th Annual Class Action Money &
Ethics Conference in NYC on Monday, May 4th.
Sponsorship opportunities are currently available.
Showcase your firm's expertise on a panel in front of 150+ class
action attorneys, general counsel, litigation financiers,
consultants, claims administrators, reporters and academics.
For sponsorship options and details, contact Colin Post at
colin@beardgroup.com
Visit the conference website: http://bit.ly/2RlIHvo
Asbestos Litigation
ASBESTOS UPDATE: Meritor Inc. Had $90-Mil. Reserves at Dec. 31
--------------------------------------------------------------
Meritor, Inc. disclosed in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
December 29, 2019, that it had reserves of US$90 million for
asbestos-related reserves as of December 31, 2019.
The Company states, "The company 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,
2019. Management continuously monitors the underlying claims data
and experience for the purpose of assessing the appropriateness of
the assumptions used to estimate the liability.
"As of September 30, 2019, the estimated probable range of equally
likely possibilities of the company's 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 a
liability at the low end of the range. The company recognized a
liability for pending and future claims over the next 40 years of
US$90 million as of December 31, 2019 and US$91 million as of
September 30, 2019.
"AM has insurance coverage that management believes covers
indemnity and defense costs, over and above self-insurance
retentions, for a significant portion of these claims. The
insurance receivables for Rockwell asbestos-related liabilities
totaled US$60 million and US$61 million as of December 31, 2019 and
September 30, 2019, respectively."
A full-text copy of the Form 10-Q is available at
https://is.gd/8G1hCR
ASBESTOS UPDATE: Paddock in Chapter 11 for Resolution of Claims
---------------------------------------------------------------
Paddock Enterprises, LLC, voluntarily filed for Chapter 11 relief
with the aim of establishing a final, certain and equitable
resolution for the company's asbestos-related claims liabilities,
O-I Glass, Inc. announced in a press release on February 4, 2020.
O-I Glass said, "In December 2019, the company completed a
corporate modernization effort which resulted in the creation of
O-I Glass, the new public company. In January 2020, Paddock
Enterprises, LLC, a new subsidiary containing all of the company's
legacy asbestos-related claims liabilities, voluntarily filed for
Chapter 11 relief with the aim of establishing a final, certain and
equitable resolution for the company's asbestos-related claims
liabilities. This action does not include O-I Glass or any of its
operating subsidiaries which continue to operate business as
usual."
A full-text copy of the Press Release dated February 4, 2020 is
available at https://is.gd/nB49Da
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2020. All rights reserved. ISSN 1525-2272.
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