/raid1/www/Hosts/bankrupt/CAR_Public/200814.mbx
C L A S S A C T I O N R E P O R T E R
Friday, August 14, 2020, Vol. 22, No. 163
Headlines
ABBVIE INC: Monopolizes Nebivolol HCl Drug Market, LEHB Claims
ACADIA PHARMACEUTICALS: Court Narrows Claims in Securities Suit
AIRPORT MANAGEMENT: $69,000 Deal in Parrilla Suit Gets Final OK
ALLIANZ LIFE: Minn. App. Flips Denial of Expert Disqualification
ANAPTYSBIO INC: Iron Workers Named Securities Suit Lead Plaintiff
APACHE CORP: Still Defends Rhea and Allen Suits in Oklahoma
AZTEC ENTERPRISES: Perez Seeks Overtime Pay for Upholsterers
BANK OF AMERICA: Notice, Allocation Plan in Antitrust Suit Okayed
BENEFYTT TECHNOLOGIES: Plumley Says Buyout Deal Lacks Info
BLS PAINTING: Fails to Properly Pay for Overtime, Moreno Claims
BOJANGLES RESTAURANTS: Class Status Sought for Shift Managers Case
BREWSTER HOME: Website Inaccessible to Blind, Hecht Claims
CALIFORNIA: Oregon Dist. Court Dismisses Blume Action
CAPITAL ONE: Court Dismisses TeWinkle Class Suit Under ECOA
CENTENE CORP: 9th Cir. Dismisses Appeal in Ambetter Policies Suit
CHARLOTTE'S WEB: Moqeet Sues Over Unlawful Sale of CBD Products
CHARLOTTE-MECKLENBURG: Williams Suit Seeks to Certify ADEA Class
CHEBURECK INC: Faces Lopez Wage-and-Hour Suit in E.D.N.Y.
CHESTNUT HOLDINGS: Further Discovery in Huggins FLSA Suit Ordered
CIRCLE K STORES: Tomaszewski Sues Over Unwanted Marketing Texts
COACH INC: Parties in Marino, Et Al. Cases File Joint Letter
CORELOGIC INC: CREDCO Faces Fernandez Suit Over Background Check
CORELOGIC INC: RPS Unit Defending Against Brown Class Suit
CORELOGIC INC: Settlement Reached in Feliciano Suit
CULLEN/FROST: Defends Class Suit Seeking PPP Loan Agent Fees
CVS HEALTH: Court Refuses to Dismiss Labourers Securities Suit
DC CONSTRUCTION: Class of Employees Certified in Imel FLSA Suit
DISCOVER FINANCIAL: B&R Supermarket Class Action Ongoing
DYNATA LLC: Perrong Sues Over Unsolicited Telemarketing Calls
EASTERN MUSHROOM: Bid to Amend Winn-Dixie Antitrust Suit Denied
EDISON INT'L: Bellwether Jury Trial Set for January 2021
EDISON INT'L: Continues to Defend Class Suits Over Woolsey Fire
ELANCO ANIMAL: Hunter Securities Class Action Underway
FEDEX GROUND: Remand of Perea to San Diego Superior Court Denied
FIRSTENERGY CORP: Faces Owens Suit Over 45% Share Price Decline
FIVE STAR: Faces Perrong Suit Over Automated Telemarketing Calls
FLAMINGO FURNITURE: Hernandez Sues Over Unpaid Minimum & OT Wages
FOOD COURT BY BRAZILIAN: Tomita Sues Over Unsolicited Ads
FORTERRA INC: Awaits Final Approval of Securities Case Settlement
HAVE A HEART: Levitt Sues Over Unsolicited Text Messages
HAYT & HAYT: Approval of Barenbaum Class Action Settlement Sought
HEARST COMMUNICATIONS: Underpays Dealers, Sanchez et al. Say
HOME DEPOT: Court Denies Hankey's Bid Compel Document Production
IMMUNOMEDICS INC: Loses Bid to Toss Tsai's Claims in Fergus Suit
INDEGENE INC: Progressive Health Sues Over Unsolicited Fax Ads
INTEL CORP: Huang Sues Over Misleading Report, Stock Price Drop
ITRON INC: Fails to Pay OT Wages Under FLSA and PMWA, Tomko Says
JANON ELECTRIC: Pavon et al. Seek Overtime Pay for Electricians
JOHNSON & JOHNSON: Continues to Defend ERISA-Related Class Suits
JOHNSON & JOHNSON: Continues to Defend INVOKANA(R) Suits
JOHNSON & JOHNSON: Discovery Ongoing in Talc Contamination Suit
JOHNSON & JOHNSON: Suits Over Ethicon Pelvic Mesh Devices Ongoing
KHRG EMPLOYER: Fails to Timely Pay Separation Wages, Munoz Alleges
KROGER CO: Lorentzen Calls Ground Coffee Label "Deceptive"
KROGER COMPANY: Vitort Sues Over Unlawful Labeling of Just Fruit
MATTRESS WAREHOUSE: Loses Bid to Nix Johnson's FLSA & PMWA Claims
MDL 1430: Final Report on Mazzone Awards Program Acknowledged
MDL 2641: CMO 47 Entered in IVC Filters Products Liability Suit
MEWBOURNE OIL: Lease Operators/Pumpers Class Certified in 'Felps'
MIRAND RESPONSE: Must Reply to RFPs & Interrogatories in Drake Suit
MISSISSIPPI POWER: Turnage Plaintiffs Seek to Revive Suit
MMJ AMERICA: Sends Unsolicited Text Messages, Natividad Says
MONARCH INVESTMENT: Turner Sues to Collect Unpaid Overtime Wages
MONTAFON: Cond. Collective Action Certification Granted in Pequero
NEON THERAPEUTICS: Marks Ordered to File Class Suit Notice on ECF
NINGBO SUNNY: Court Grants in Part Orion's Request for Sanctions
OUTLAW LABORATORIES: Tauler Smith Must Provide Further Responses
OWLET BABY: Wins Bid to Dismiss Smart Sock Claims in Ruiz Suit
PIPELINE HEALTH: Bid to Dismiss Pechulis WARN-IWPCA Suit Denied
POLARIS INC: 8th Cir. Agrees to Hear Appeal in Johannessohn Suit
POLARIS INC: Appeal in Sales & Product Liability Suit Pending
POLARIS INC: Discovery Underway in Guzman and Albright Class Suit
PPG INDUSTRIES: Stipulated Protective Order Entered in Castro Suit
PRECISION DRILLING: Court Denies Bill of Costs in Tyger FLSA Suit
PROGRESSIVE DIRECT: Can't Compel Vehicle Loss Appraisal in Stanikzy
QUTEN RESEARCH: Barton Sues over Misleading Qunol Health Products
RATER8 LLC: Faces Wilson TCPA Suit Over Unsolicited Text Messages
RAUSCH STURM: Makurat Sues Over Illegal Consumer Debt Collection
REXNORD CORP: Claims Bar Date in Zurn Brass Fitting Deal Expires
RJ REYNOLDS: Fla. Dist. App. Affirms Final Judgment in Rouse Suit
ROADWAY INC: Jewell Sues Over Failure to Pay Overtime
ROMANOFF FLOOR: $1.4M Settlement in Bailey Suit Has Prelim Approval
RYANAIR HOLDINGS: Birmingham Funds' Suit Ongoing
SALT CREEK: Mag. Judge Recommends Stay Bid Denial in Bock Suit
SEABOARD CORP: Bid to Dismiss Pork Antitrust Litigation Pending
SEARS OUTLET: 3rd Cir. OKs Dismissal of Yucis Discrimination Suit
SEI INVESTMENTS: Suits Over SPTC Services to Stanford Ongoing
SIX FLAGS: Still Defends Lawsuits Over Credit Card Info
SIX FLAGS: Still Defends Suit Over Collection of Biometric Data
SKY SOLAR: Bid to Amend SAC in Barilli Securities Suit Denied
SLEEP NUMBER: Tenzer-Fuchs Sues Over Blind-Inaccessible Web Site
SO CAL PLUMBING: Sasani Seeks Penalties for Labor Code Violations
SOUTHWEST AIRLINES: Appeal in Airfare-Related Class Suit Ongoing
SOUTHWEST AIRLINES: Securities Class Suit Underway in Texas
SPARTAN RACE: Court Won't Modify Scheduling Order in Fruitstone
STATE FARM: Court Partially Grants Bid to Dismiss Irvin Class Suit
STATE STREET: Class Suit Over Invoicing Practices Ongoing
STERLING JEWELERS: Cota Sues Over Blind-Inaccessible Web Site
STEVEN C. ROBERTS: Idzinski Sues Over Failure to Pay Overtime
STRATHMORE INSURANCE: Select Hospitality Sues Over COVID-19 Losses
SUNRISE SENIOR: Class Cert. Hearing in Heredia Suit Moved to Dec.
TAILORED BRANDS: Suit by Airline Staff vs Twin Hill Underway
TAPESTRY INC: Settlement in Garcia Suit Gets Final Approval
TESLA INC: Appeal in Investor Suit Over Model 3 Production Pending
TESLA INC: March 2022 Trial in Class Suit Over 'Go Private' Tweet
TRUE GRADE: Ortueta Sues Over Unpaid Overtime, Termination
TRUEACCORD: Court Dismisses Zuniga Suit Alleging FDCPA Violations
TWIN MOUNT: Santana Seeks to Recover Overtime Wages Under FLSA
UNITED STATES: Subramanya Seeks Class Status for Immigration Suit
UNIVISTA INSURANCE: Nitzany Sues Over Unsolicited Telemarketing
US FINANCIAL: Farris Has Conditional Leave to File Docs Under Seal
VICVIC CORPORATION: Faces Scotto Wage and Hour Suit in New York
WALLER COUNTY, TX: Court Denies Summary Judgment Bid in Allen Suit
WASHINGTON POST: Jordan Sues Over Auto Renewal of Subscription
WOODBOLT DISTRIBUTION: Metague Balks at Deceptive Marketing
YALE UNIVERSITY: Fails to Refund Tuition Fee, Michel Claims
YORKSHIRE BUILDING: Pacheco Sues Over Unpaid OT, Retaliation
Asbestos Litigation
ASBESTOS UPDATE: 3M Accrues $21MM Aearo-related Claims at June 30
ASBESTOS UPDATE: 3M's Pneumoconiosis Suit set for September Hearing
ASBESTOS UPDATE: Albany Int'l. Still Defends Mount Vernon Cases
ASBESTOS UPDATE: Ashland Global Had 49,000 Open Claims at June 30
ASBESTOS UPDATE: Carrier Global Had $251MM Liability at June 30
ASBESTOS UPDATE: Chemours Accrues $34MM for DuPont Suits at June 30
ASBESTOS UPDATE: Colgate-Palmolive Has 128 Talcum Suits at June 30
ASBESTOS UPDATE: Columbus McKinnon Has $4.4MM Liability at June 30
ASBESTOS UPDATE: Corning Had $97MM non-PCC Reserves at June 30
ASBESTOS UPDATE: Crane Co. Has 28,927 Pending Claims at June 30
ASBESTOS UPDATE: Crown Holdings Had 56,000 Claims at June 30
ASBESTOS UPDATE: Flowserve Still Defends PI Lawsuits at June 30
ASBESTOS UPDATE: Garrett-Honeywell Indemnification Disputes Ongoing
ASBESTOS UPDATE: Hercules LLC Had 13,000 Open Claims at June 30
ASBESTOS UPDATE: Honeywell Investors Suit has Sept. 9 Deadline
ASBESTOS UPDATE: ITT Remains Obliged to Indemnify Xylem at June 30
ASBESTOS UPDATE: Magnetek Has $708,000 Liability at June 30
ASBESTOS UPDATE: MRC Global Still Faces 603 Lawsuits at June 30
ASBESTOS UPDATE: Rexnord Still Defends Stearns PI Suits at June 30
ASBESTOS UPDATE: Rexnord's Prager Unit Still Has PI Claims in June
ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at June 30
ASBESTOS UPDATE: Standard Motor Had 1,600 Fibro Cases at June 30
ASBESTOS UPDATE: Trane Transfers Liabilities to Aldrich and Murray
ASBESTOS UPDATE: TriMas Corp. Has 352 Pending Cases at June 30
*********
ABBVIE INC: Monopolizes Nebivolol HCl Drug Market, LEHB Claims
--------------------------------------------------------------
LAW ENFORCEMENT HEALTH BENEFITS, INC., individually and on behalf
of all others similarly situated, Plaintiff v. ABBVIE INC.;
ALLERGAN, INC.; ALLERGAN SALES, LLC; ALLERGAN USA, INC.; FOREST
LABORATORIES, INC.; FOREST LABORATORIES HOLDINGS, LTD.; FOREST
LABORATORIES IRELAND, LTD.; and FOREST LABORATORIES, LLC,
Defendants, Case No. 1:20-cv-05901 (S.D.N.Y., July 29, 2020) is a
class action against the Defendants for alleged violation of
Sections 1 and 2 of the Sherman Act, monopolization and
monopolistic scheme under state law, conspiracy to monopolize,
unfair or deceptive trade practices, and unjust enrichment.
The Plaintiff, on behalf of itself and all others similarly
situated entities or individuals, alleges that the Defendants
knowingly and intentionally conspired to monopolize the Bystolic
and AB-rated bioequivalent nebivolol hydrochloride (HCl) products
market. The Defendants accomplished this scheme by, among other
things, (1) entering into illegal agreements that delayed the entry
of generic Bystolic in order to lengthen the period in which the
Defendants brand Bystolic could monopolize the market and make
supracompetitive profits; (2) raising and maintaining prices so
that the Plaintiff and Class members would pay for Bystolic at
supracompetitive prices; and (3) otherwise conspiring to unlawfully
monopolize and conspire to monopolize the market for nebivolol
hydrochloride.
As a result of the Defendants' monopolistic scheme and concerted
monopolistic conduct, they unlawfully maintained, enhanced, and
extended its monopoly power and the Plaintiff and Class members
were harmed and suffered overcharge damages.
Law Enforcement Health Benefits, Inc. (LEHB) is a voluntary
employee benefits plan to provide health benefits to its eligible
participants and beneficiaries, with its principal place of
business located in Philadelphia, Pennsylvania.
AbbVie, Inc. is an American biopharmaceutical company with its
corporate headquarters at 1 North Waukegan Road, North Chicago,
Illinois.
Allergan, Inc. is a global pharmaceutical company that focused on
eye care, neurosciences, medical dermatology, medical aesthetics,
breast enhancement, obesity intervention and urologics. Its
principal place of business is located at Morris Corporate Center
III, 400 Interpace Parkway, Parsippany, New Jersey.
Allergan Sales, LLC is a pharmaceutical company that provides eye
care, medical aesthetics and dermatology, gastroenterology, women's
health, urology, and anti-infective therapeutic diseases related
products. Its principal place of business is located at 5 Giralda
Farms, Madison, New Jersey.
Allergan USA, Inc. is a pharmaceutical company that develops and
markets medicines for overactive bladders, urinary tract
infections, and menopause symptoms, well as urinary
analgesic-antiseptic products, with its principal place of business
located at 5 Giralda Farms, Madison, New Jersey.
Forest Laboratories, Inc. is a pharmaceutical company with its
principal place of business located at 909 Third Avenue, New York,
New York.
Forest Laboratories Holdings, Ltd. is a pharmaceutical company with
principal place of business located at 18 Parliament Street,
Hamilton HM 11, Bermuda.
Forest Laboratories Ireland Ltd. is a pharmaceutical company with a
place of business at Clonshaugh Industrial Estate, Dublin 17,
Ireland.
Forest Laboratories, LLC is a pharmaceutical company with its
principal place of business located at Morris Corporate Center III,
400 Interpace Parkway, Parsippany, New Jersey. [BN]
The Plaintiff is represented by:
Robert G. Eisler, Esq.
Deborah A. Elman, Esq.
Chad Holtzman, Esq.
GRANT & EISENHOFER
485 Lexington Avenue, 29 Floor
New York, NY 10017
Telephone: (646) 722-8500
Facsimile: (646) 722-8501
E-mail: reisler@gelaw.com
delman@gelaw.com
choltzman@gelaw.com
ACADIA PHARMACEUTICALS: Court Narrows Claims in Securities Suit
---------------------------------------------------------------
In the case captioned IN RE ACADIA PHARMACEUTICALS INC. SECURITIES
LITIGATION, Case No. 18-CV-01647-AJB-BGS (S.D. Cal.), the U.S.
District Court for the Southern District of California issued an
order:
(1) granting the Plaintiff's motion to strike; and
(2) granting in part and denying in part the Defendants'
motion to dismiss the amended class action complaint.
The Plaintiff represents a class of those who acquired ACADIA
securities between April 29, 2016, and July 9, 2018, and who are
suing under the Securities Exchange Act of 1934.
On April 29, 2016, the U.S. Food and Drug Administration ("FDA")
approved ACADIA's lead drug, NUPLAZID. A black box warning was
placed on NUPLAZID that indicated there is an increased risk of
death in elderly patients with dementia-related psychosis treated
with antipsychotic drugs. On May 31, 2016, NUPLAZID commercially
launched.
The Plaintiff filed a motion to strike Exhibit A to the Declaration
of Peter M. Adams in Support of Defendants' Motion to Dismiss the
Amended Class Action Complaint and references thereto in
Defendants' Memorandum in Support of Motion to Dismiss. The
Plaintiff argues that the Defendants submitted an exhibit, totaling
25 pages, for the sole purpose of presenting additional arguments
against falsity which they could not fit in their Memorandum of
Points and Authorities.
The Court agrees. The Court says the Defendants would have needed
to seek leave of the Court prior to filing their brief but the
Defendants failed to do so.
According to District Judge Anthony J. Battaglia, to the extent the
Plaintiff seeks to hold the Defendants liable for statements that
are true and for statements that are forward-looking, the Court
grants Defendants' motion to dismiss. Judge Battaglia adds that to
the extent the Plaintiff is relying on statements of opinion or
statement of corporate optimism, the Court grants the Defendants'
motion to dismiss.
The Court, however, rules that the Defendants' motion to dismiss is
denied regarding the element of scienter, loss causation and
Section 20(a), which imposes liability on control persons.
The Plaintiff must ensure that the statements upon which he bases
his allegations are actionable statements, Judge Battaglia notes.
The Plaintiff will have 45 days from the date of this Order to file
an amended complaint addressing the deficiencies noted in the
Order.
A full-text copy of the District Court's June 1, 2020 Order is
available at https://tinyurl.com/y9jaed6p from Leagle.com.
AIRPORT MANAGEMENT: $69,000 Deal in Parrilla Suit Gets Final OK
---------------------------------------------------------------
In the case, DESTINY PARRILLA, Plaintiff, v. AIRPORT MANAGEMENT
SERVICES, LLC and HUDSON-KEELEE JFK 7 JV, Defendants, Docket No.
159825/2018 (N.Y. Sup.), Judge Louis L. Nock of the New York County
Supreme Court granted the Plaintiffs' Motion for Final Approval of
Class Action Settlement, Service Award to Plaintiff, and Award of
Class Counsel's Attorneys' Fees and Costs.
The Plaintiff filed the present Class Action Complaint in New York
County Supreme Court on Oct. 23, 2018. The Complaint alleged that
the Defendants violated the New York Labor Law and its supporting
New York State Department of Labor Regulations during the Class
Period because the Defendants failed to provide maintenance pay for
required uniforms; for alleged minimum wage violations; for alleged
withholding of gratuities; and for alleged off-the-clock work. A
Joint Settlement Agreement and Release was executed by all parties
to resolve this matter for $69,000, inclusive of all fees, costs
and expenses.
On Oct. 10, 2019, the Plaintiff filed a Motion for Preliminary
Approval of the Settlement Agreement, Certification of the Class
for Settlement Purposes, Appointment of Plaintiff as Class
Representatives, Appointment of the Law Firm of Bouklas Gaylord LLP
as Class Counsel, Approval of the Class Notice, and Scheduling a
Fairness Hearing. On Feb. 27, 2020, the Court granted preliminary
approval of the Settlement Agreement, certified the Settlement
Class, appointed the Plaintiff as the Class Representatives,
appointed Bouklas Gaylord LLP as the Class Counsel, approved the
Class Notice, and scheduled a date for the Fairness Hearing.
On April 3, 2020, the Defendant's attorney mailed the Class Notice
to all the Class Members. Subsequently, the Plaintiff filed a
Motion for Final Approval of Class Action Settlement, Service Award
to Plaintiff, and Award of Class Counsel's Attorneys' Fees and
Costs. The Defendants did not oppose the motion.
The Court held a Fairness Hearing on July 15, 2020. The Parties'
counsel has received zero objections and zero opt-outs.
Having considered the Motion for Final Approval of the Class Action
Settlement, Judge Nock certified the following under Article 9 of
the New York Civil Practice Law and Rules ("CPLR") for settlement
purposes: Named Plaintiff and all current and former non-exempt
employees who worked at the Dunkin' Donuts stores located in John
F. Kennedy International Airport in New York, New York, that are
owned and/or operated, directly or indirectly, by Defendants and/or
their respective parents, subsidiaries and affiliates, including
without limitation those stores owned and/or operated by
HG-KCGI-TEI JFK T8 JV (JFK T8), from Oct. 23, 2012 through July 24,
2019.
The Court granted the Motion for Final Approval of the Class Action
Settlement, Service Award to Plaintiff, and Award of Class Counsel
Attorneys' Fees and Costs, and finally approved the settlement as
set forth in the Settlement Agreement of $69,000.
The Judge finds reasonable the service award of $2,500 to class
representative, Destiny Parrilla, given the contributions she made
to advance the prosecution and resolution of the lawsuit. The
award will be paid from the settlement fund.
He also granted the Class Counsel's request for attorneys' fees and
costs, and awarded the Class counsel $23,456.88, which is 33% of
the settlement fund plus reasonable costs. The attorneys' fees,
costs, and expenses will be paid from the settlement fund.
Within 45 days following the Effective Date, the Defendants will
pay (i) the Class Counsel attorneys' fees and costs of $23,456.88
from the Settlement Fund; (ii) the service award of $2,500 to
Plaintiff Destiny Parrilla; and (iii) the remainder of the
Settlement Fund (after subtracting the attorneys' fees and expenses
and the service award) to the Class Members in accordance with the
allocation plan described in the Settlement Agreement.
The "Effective Date" means the last of: (a) the date 35 days after
entry of an order by the Court granting final approval to the
Settlement and the expiration of any appeal period, provided there
are no appeals, or (b) if there is an appeal of the Court's
decision granting final approval, the day after all appeals are
resolved in favor of final approval.
The case is dismissed with prejudice, and all the members of the
Settlement Class who have not excluded themselves from the
settlement will be conclusively deemed to have released and
discharged the Defendants from, and will be permanently enjoined
from, directly or indirectly, pursuing and/or seeking to reopen,
any and all claims that have been released pursuant to the
settlement.
A full-text copy of the Court's July 15, 2020 Final Judgment is
available at https://is.gd/1z3BhW from Leagle.com.
ALLIANZ LIFE: Minn. App. Flips Denial of Expert Disqualification
----------------------------------------------------------------
The Court of Appeals of Minnesota issued an Opinion reversing the
District Court's order denying Allianz's disqualification motion in
the case captioned Bonnie Berthiaume, et al., Plaintiffs; Robert
Berthiaume, et al., Respondents v. Allianz Life Insurance Company
of North America, Appellant; Imeriti, Inc., d/b/a Imeriti Financial
Network, Defendant, Case No. A19-1422 (Minn. App.).
Allianz appeals from the District Court's denial of its motion to
disqualify Michael Rothman, Esq., as the Respondents' expert
witness.
The Plaintiffs in this class-action lawsuit against a
life-insurance company alleged that the Company is liable for
losses they suffered from an elaborate fraud perpetrated by an
independent insurance agent affiliated with the Company, Sean
Meadows (who is now serving a 25-year sentence in federal prison).
The Plaintiffs identified as their testifying expert witness an
attorney, who previously represented the insurance company. The
Company moved the District Court to disqualify the expert based on
his prior relationship with the Company, asserting that the
attorney had advised the Company on regulatory and litigation
matters, including the Company's monitoring of its independent
insurance agents, and claiming that confidential information
relating to the case had been disclosed to him during the prior
representation. The District Court denied the motion to
disqualify.
The Appellate Court says: "This interlocutory appeal requires us to
decide the proper standard governing a motion to disqualify an
attorney from serving as an expert witness adverse to his former
client. Because we now adopt an expert-disqualification standard
that differs from the standard the district court applied, we
reverse the district court's decision and remand for it to decide
the disqualification motion anew."
The Appellate Court opines that the District Court should
disqualify an expert witness--including an attorney--seeking to
offer testimony against a party with whom the expert had a prior
relationship if (1) it is objectively reasonable for the adverse
party to believe that it had a confidential relationship with the
expert, and (2) the adverse party disclosed to the expert
confidential information regarding the same subject matter or
directly related to the subject matter about which the expert
proposes to testify in the present litigation. In determining
whether disqualification is warranted, a district court may also
weigh the relevant policy interests in the case, such as the
potential prejudice to the parties.
Having determined the standard governing expert disqualification in
this case, the Appellate Court believes the District Court is in
the best position to apply the standard to resolve Allianz's
motion. The Appellate Court, therefore, remands the case to the
District Court to evaluate the evidence in light of the standard.
A full-text copy of the Court of Appeals' June 1, 2020 Opinion is
available at https://tinyurl.com/yb74edfx from Leagle.com
Amy S. Conners, Esq.--aconners@bestlaw.com; Katherine S. Barrett
Wiik, Esq.--kbarrettwiik@bestlaw.com; Jennifer L. Olson,
Esq.--jolson@bestlaw.com; Brian J. Linnerooth,
Esq.--blinnerooth@bestlaw.com, Best & Flanagan LLP, in Minneapolis,
Minnesota, for the Respondents.
Aaron D. Van Oort, Esq.--aaron.vanoort@faegredrinker.com; Jeffrey
D. Hedlund, Esq.--jeff.hedlund@faegredrinker.com; Larry E. LaTarte,
Esq.--larry.latarte@faegredrinker.com; Jeffrey P. Justman,
Esq.--jeff.justman@faegredrinker.com, Faegre Drinker Biddle & Reath
LLP, in Minneapolis, Minnesota, for the Appellant.
ANAPTYSBIO INC: Iron Workers Named Securities Suit Lead Plaintiff
-----------------------------------------------------------------
In the case, CITY OF HALLANDALE BEACH POLICE OFFICERS' AND
FIREFIGHTERS' PERSONNEL RETIREMENT TRUST, on behalf of itself and
all others similarly situated, Plaintiff, v. ANAPTYSBIO, INC.,
HAMZA SURIA, MARCO LONDEI, and DOMINIC G. PISCITELLI, Defendant,
Case No. 20cv565 GPC(DEB) (S.D. Cal.), Judge Gonzalo P. Curiel of
the U.S. District Court for the Southern District of California
granted Iron Workers Local 580 Joint Funds' unopposed motion for
appointment as the Lead Plaintiff and approval of selection of the
Lead Counsel.
On March 25, 2020, Plaintiff City of Hallandale Beach Police
Officers' and Firefighters' Personnel Retirement Trust, through its
counsel, Bernstein Litowitz Berger & Grossmann LLP filed a
securities class action complaint against Defendant AnaptysBio and
certain of its current and former senior executives. The Complaint
claims that between Oct. 10, 2017 and Nov. 7, 2019, inclusive, the
Defendants defrauded investors in violation of Sections 10(b) and
20(a) of the Exchange Act, and U.S. Securities and Exchange
Commission Rule 10b-5 promulgated thereunder.
Specifically, the Complaint alleges that, during the Class Period,
the Defendants misrepresented the purported efficacy of its lead
drug candidate, etokimab, a drug intended for the treatment of
various inflammatory diseases. AnaptysBio investors, including
Iron Workers, incurred significant losses following reports that
questioned the reliability of the Company's reported trial data for
etokimab and after the Company ultimately announced that etokimab
had failed to meet its primary endpoint in a trial evaluating the
drug's efficacy in treating patients with moderate-to-severe atopic
dermatitis.
Before the Court is Iron Workers' unopposed motion for appointment
as the Lead Plaintiff and approval of selection of Lead Counsel.
The Defendants responded that it takes no position on which movant
should be appointed as the Lead Plaintiff or which law firm should
be appointed as the Lead Counsel. On June 19, 2020, Iron Workers
filed a notice indicating that its motion was unopposed and should
be granted.
Movant Iron Workers claims that it has the largest financial
interest in the relief sought by the class as it lost about
$200,000 on its purchases of 3,067 shares of AnaptysBio's stock
during the Class Period. Because no other movant has asserted the
largest financial interest in the litigation, Judge Curiel finds
that Iron Workers is the member with the largest financial interest
in the relief sought by the class.
Judge Curiel also concludes that the typicality and adequacy
requirements are met. First, Iron Workers' claims arise from the
same events and are based on the same legal theory as the claims of
the other class members. Second, it appears that Iron Workers'
interests are aligned with those of the other class members, and it
is willing and able to serve as the Lead Plaintiff. Finally, Iron
Workers' retained counsel, Bernstein Litowitz Berger & Grossmann
LLP, is well experienced in the area of complex securities class
litigation and is capable of representing the interests of the
Class. Therefore, Judge Curiel finds that Iron Workers is the
presumptive Lead Plaintiff under the PSLRA.
The presumption that Iron Workers is the most adequate Lead
Plaintiff may be rebutted only upon proof by a member of the
purported plaintiff class that it will not fairly and adequately
protect the interests of the class or is subject to unique defenses
that render them incapable of adequately representing the class.
No movant has opposed the motion or come forward with such proof.
Accordingly, Judge Curiel will appoint Iron Workers Local 580 Joint
Funds as the Lead Plaintiff.
Iron Workers also asked the Court to approve their selection of
Bernstein Litowitz Berger & Grossmann LLP as lead counsel. On its
firm resume, Bernstein Litowitz Berger & Grossmann LLP claims to be
the nation's leading securities class action firm. It has served
as lead counsel in numerous securities class action litigation and
obtained billions of dollars in recovery. In light of the firm's
substantial experience in securities class action litigation, the
Judge approves Iron Workers' choice of counsel, and will appoint
Bernstein Litowitz Berger & Grossmann LLP as the Lead Counsel.
Against this backdrop, Judge Curiel granted Iron Workers' Motion.
Iron Workers is appointed to serve as the Lead Plaintiff under
Section 21D(a)(3)(B) of the Securities Exchange Act of 1934, as
amended by the Private Securities Litigation Reform Act of 1995, in
the action and all related actions consolidated in accordance with
the Order. Iron Workers' selection of Lead Counsel is approved,
and Bernstein Litowitz Berger & Grossmann LLP is appointed as the
Lead Counsel for the Class.
In accordance with Rule 42(a) of the Federal Rules of Civil
Procedure, any subsequently filed, removed, or transferred actions
that are related to the claims asserted in the action are
consolidated for all purposes.
The action will be captioned "In re AnaptysBio, Inc. Securities
Litigation," and the file will be maintained under Master File No.
3:20-cv-00565-GPC-MDD.
The hearing date set for July 24, 2020 was vacated.
A full-text copy of the Court's July 15, 2020 Order is available at
https://is.gd/4e2I2u from Leagle.com.
APACHE CORP: Still Defends Rhea and Allen Suits in Oklahoma
-----------------------------------------------------------
Apache Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that the company continues to
defend the cases, Bigie Lee Rhea v. Apache Corporation, Case No.
6:14-cv-00433-JH, and Albert Steven Allen v. Apache Corporation,
Case No. CJ-2019-00219, in Oklahoma.
Apache is a party to two class actions in Oklahoma styled Bigie Lee
Rhea v. Apache Corporation, Case No. 6:14-cv-00433-JH, and Albert
Steven Allen v. Apache Corporation, Case No. CJ-2019-00219.
The Rhea case has been certified, and Apache's appeal of the
certification was recently denied.
The case includes a class of royalty owners seeking damages in
excess of $200 million for alleged breach of the implied covenant
to market relating to post-production deductions and alleged
natural gas liquids (NGL) uplift value.
The Allen case has not been certified and seeks to represent a
group of owners who have allegedly received late payments under
Oklahoma statutes.
Apache said, "The amount of this claim is not yet reasonably
determinable. While adverse judgments against the Company are
possible, the Company intends to vigorously defend these lawsuits
and claims."
No further updates were provided in the Company's SEC report.
Apache Corporation is an independent energy company, which explores
for, develops, and produces natural gas, crude oil, and natural gas
liquids. The company is based in Houston, Texas.
AZTEC ENTERPRISES: Perez Seeks Overtime Pay for Upholsterers
------------------------------------------------------------
RODRIGO PEREZ, and other similarly situated individuals, Plaintiff
(s) v. AZTEC ENTERPRISES INC., and DAVID P. NAGURNEY, individually,
Defendants, Case No. 9:20-cv-81220-AHS (S.D. Fla., July 29, 2020)
is an action against Defendant to recover money damages for unpaid
half-time overtime wages pursuant to 28 U.S.C. Section 1337 and by
29 U.S.C. Section 201-219, Section 216(b), the Fair Labor Standards
Act.
The Plaintiff seeks to recover from the Defendants overtime
compensation, liquidated damages, and the costs and reasonable
attorney's fees under the provisions of FLSA on behalf of
Plaintiff, and all other current and former employees similarly
situated to Plaintiff who worked in excess of 40 hours during one
or more weeks on or after July 2017 without being compensated
overtime wages pursuant to the FLSA.
The Defendants employed Plaintiff as a non-exempted, full-time,
upholstering employee, from about October 1989, through
approximately April 14, 2020, or more than 30 years.
Aztec Enterprises, Inc. is a carpet and upholstery business located
in West Palm Beach, Florida.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd. Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
BANK OF AMERICA: Notice, Allocation Plan in Antitrust Suit Okayed
-----------------------------------------------------------------
Judge Edgardo Ramos of the U.S. District Court for the Southern
District of New York granted the Plaintiffs' Motion for an Order
Providing for Notice to the Settlement Classes and Preliminarily
Approving the Plan of Allocation in In re SSA BONDS ANTITRUST
LITIGATION. This Document Relates To: ALL ACTIONS, Civil Action No.
1:16-cv-03711-ER (S.D. N.Y.).
The Court has entered orders, inter alia, preliminarily approving
the terms of the settlements with Defendants Bank of America Corp.,
Bank of America, N.A., Merrill Lynch International, Bank of America
Merrill Lynch International Ltd., Merrill Lynch, Pierce, Fenner &
Smith, Inc., Deutsche Bank AG, Deutsche Bank Securities, Inc., HSBC
Securities (USA), Inc. and HSBC Bank plc, preliminarily certifying
the proposed Settlement Classes, preliminarily appointing Co-Lead
Counsel and preliminarily appointing Class Representatives.
The Plaintiffs have applied to the Court for the Order Providing
for Notice to the Settlement Classes and Preliminarily Approving
the Plan of Allocation.
In an order dated July 15, 2020, a full-text copy of which is
available at https://is.gd/DsJOsw from Leagle.com, Judge Ramos
preliminarily approved the Plan of Allocation as described in the
Plaintiffs' Memorandum of Law in Support of Motion for an Order
Providing for Notice to the Settlement Classes and Preliminarily
Approving Plan of Allocation, and subject to further consideration
at the Fairness Hearing. Any and all distributions to eligible
members of the Settlement Classes will be made pursuant to the Plan
of Allocation, as finally approved by the Court, to those members
of the Settlement Classes who submit a valid Proof of Claim and
Release Form.
The Judge also approved, as to form and content, the Notice of
Proposed Settlements of Class Action, Claim Form, Summary Notice of
Proposed Settlements of Class Action for publication, and Notice
Banner Ads for Publication.
Judge Ramos approved the Co-Lead Counsel's designation of Angeion
Group as the Claims Administrator. He also approved the
Plaintiffs' designation of Robbins Geller Rudman & Dowd LLP as the
Escrow Agent. Absent further order of the Court, the Claims
administrator and the Escrow Agent will have such duties and
responsibilities in such capacity as are set forth in the
Settlement Agreements. If they have not already done so, each
Settling Defendant will comply with the notice requirements of the
Class Action Fairness Act within 10 days of entry of the Order.
As soon as is practicable, Settling Defendants Deutsche Bank and
HSBC will produce to the Plaintiffs the counterparty name and
address information referenced in the Plaintiffs' Memorandum of Law
in Support of Motion for an Order Providing for Notice to the
Settlement Classes and Preliminarily Approving Plan of Allocation.
Beginning 14 days after entry of the Order, each Settling Defendant
who has not yet produced its Counterparty Information to the
Plaintiffs, will submit a joint status letter to the Court every 14
days, apprising the Court of their efforts to produce such
information to them and the estimated time by which they will
produce it. The Plaintiffs will notify the Court as soon as they
have received Counterparty Information from all the Settling
Defendants.
Beginning 15 days after the Plaintiffs notify the Court that they
have received Counterparty Information from all the Settling
Defendants, the Claims Administrator (Angeion Group) will cause a
copy of the Notice and Claim Form to all members of the Settlement
Classes who can be identified through reasonable effort.
Also 15 days after the Plaintiffs notify the Court that they have
received Counterparty Information from all the Settling Defendants,
the Co-Lead Counsel will establish and maintain, or cause to be
established and maintained, a dedicated settlement website from
which each member of the Settlement Classes can view and download
relevant documents, including the Notice, Claim Form, Summary
Notice, Second Consolidated Amended Class Action Complaint, and
other important pleadings and orders.
By 10 days after the Notice Date, the Claims Administrator will
cause the Summary Notice to be published once in the national
edition of The Wall Street Journal and via The Wall Street Journal
display network, once in print and digital e-editions of Financial
Times, The Economist, Bloomberg Businessweek, and The New York
Times, and once in the publications The Bond Buyer and EuroMoney.
Publication notice will also consist of a press release over PR
Newswire, digital banner advertisements, and internet sponsored
links as described in the Declaration of Steven Weisbrot, on Behalf
of Angeion Group, LLC. After the issuance of the Order, the
Settling Parties may agree to broaden this publication notice plan
in consultation with the Claims Administrator without further order
of the Court.
To the extent the Settling Defendants have identified members of
the Settlement Classes but the disclosure thereof to the Co-Lead
Counsel is not clearly permitted by law and/or in respect of other
privacy considerations, the Settling Defendants will provide notice
as described in the Settlement Agreements and may either engage an
agent with experience in providing notice in class actions to
disseminate the Notice and Claim Form to those members of the
Settlement Classes, or themselves disseminate the Notice and Claim
Form to those members of the Settlement Classes.
Any Person who is not a Settling Defendant or Released Party who
transacted in SSA Bonds for the benefit of another Person during
the Settlement Class Periods will be requested either to send the
Notice and Claim Form to all such Beneficial Owners within 14 days
after receipt thereof or to send a list of the names and last known
addresses of such Beneficial Owners to the Claims Administrator
within 14 days of receipt thereof, in which event, the Claims
Administrator will promptly mail the Notice and Claim Form to such
Beneficial Owners.
Members of the Settlement Classes who wish to participate in the
Settlements must complete and submit valid Claim Forms, in
accordance with the instructions contained therein. Unless the
Court orders otherwise, all Claim Forms must be submitted by 14
days after the Fairness Hearing.
Any Person seeking exclusion from the Settlement Classes must
submit a timely written request for exclusion ("Request for
Exclusion") in accordance with the procedures set forth. The
Co-Lead Counsel will provide a list of those Persons who have
submitted Requests for Exclusion, together with all such written
Requests for Exclusion, to the counsel for the Settling Defendants
within five business days of the deadline set by the Court for the
submitting of Requests for Exclusion.
All papers in support of final approval of the Settlements and the
Fee and Expense Application will be filed by 60 days after the
Notice Date, and any reply papers (which may include a response to
objections, if any) will be filed by 14 days after the Objection
Deadline. Concurrent with the motion for final approval of the
Settlements, and with any subsequent updates as necessary, the
Co-Lead Counsel will file or cause to be filed a sworn statement
attesting to the compliance with the paragraphs in the Order
governing the provision of notice.
The Fairness Hearing is set for Dec. 3, 2020 at 11:30 a.m. The
Court will consider the Plan of Allocation and the Fee and Expense
Application separately from the fairness, reasonableness, and
adequacy of the Settlements, and any decisions by the Court
concerning the Plan of Allocation and the Fee and Expense
Application will not affect the validity or finality of the
Settlements.
BENEFYTT TECHNOLOGIES: Plumley Says Buyout Deal Lacks Info
----------------------------------------------------------
The case, PATRICK PLUMLEY, Individually and On Behalf of All Others
Similarly Situated, Plaintiff, v. BENEFYTT TECHNOLOGIES, INC., PAUL
E. AVERY, ROBERT MURLEY, ANTHONY J. BARKETT, JOHN FICHTHORN, PEGGY
B. SCOTT, GAVIN SOUTHWELL, PAUL GABOS, DAYLIGHT BETA PARENT CORP.,
and DAYLIGHT BETA CORP., Defendants, Case No. 1:20-cv-01017-UNA (D.
Del., July 28, 2020) arises from a proposed transaction announced
on July 13, 2020, pursuant to which Benefytt Technologies, Inc.
will be acquired by funds affiliated with Madison Dearborn
Partners, LLC.
According to the complaint, Benefytt's Board of Directors caused
the Company to enter into an agreement and plan of merger with
Daylight Beta Parent Corp. and Daylight Beta Corp. on July 12,
2020. Pursuant to the terms of the Merger Agreement, Daylight Beta
Corp. commenced a tender offer to purchase all of Benefytt's
outstanding Class A common stock for $31.00 per share in cash. The
Tender Offer is set to expire on August 20, 2020.
Defendants filed a Solicitation/Recommendation Statement on July
24, 2020 with the United States Securities and Exchange Commission
in connection with the Proposed Transaction.
The complaint says the Solicitation Statement omits material
information with respect to the Proposed Transaction, which renders
the Solicitation Statement false and misleading. Accordingly,
plaintiff alleges that defendants violated Sections 14(e), 14(d),
and 20(a) of the Securities Exchange Act of 1934 in connection with
the Solicitation Statement.
Benefytt Technologies, Inc. is a Florida-based health insurance
technology company that primarily engages in the development and
operation of private e-commerce health insurance marketplaces,
consumer engagement platforms, agency technology systems, and
insurance policy administration platforms.[BN]
The Plaintiff is represented by:
Seth D. Rigrodsky, Esq.
Brian D. Long, Esq.
Gina M. Serra, Esq.
RIGRODSKY & LONG, P.A.
300 Delaware Avenue, Suite 1220
Wilmington, DE 19801
Telephone: (302) 295-5310
Facsimile: (302) 654-7530
E-mail: sdr@rl-legal.com
bdl@rl-legal.com
gms@rl-legal.com
- and -
Richard A. Maniskas, Esq.
RM LAW, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
Telephone: (484) 324-6800
Facsimile: (484) 631-1305
E-mail: rm@maniskas.com
BLS PAINTING: Fails to Properly Pay for Overtime, Moreno Claims
---------------------------------------------------------------
ISMAEL MORENO, individually and on behalf of all others similarly
situated, Plaintiff v. BLS PAINTING, INC., BENITO LUNA and ERICK
LUNA, Defendants, Case No. 1:20-cv-00780 (W.D. Tex., July 23, 2020)
is a collective action complaint brought against Defendants for
their alleged unlawful policy and practice in violations of the
Fair Labor Standards Act.
Plaintiff was employed by Defendants as a non-exempt painter from
approximately September 2019 through January 2020.
Plaintiff asserts that he was required by Defendant to regularly
work over 40 hours per workweek. However, Defendants failed to
correctly compensate him with proper overtime compensation of 1.5
times his regular rate of pay for all hours he was suffered or
permitted to work.
Benito Luna and Erick Luna own and operate BLS Painting, Inc.
BLS Painting, Inc. provides painting services to customers in and
outside the greater Austin, Texas area. [BN]
The Plaintiff is represented by:
Ricardo J. Prieto, Esq.
Melinda Arbuckle, Esq.
SHELLIST LAZARZ SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Tel: (713) 621-2277
Fax: (713) 621-0993
Emails: rprieto@eeoc.net
marbuckle@eeoc.net
BOJANGLES RESTAURANTS: Class Status Sought for Shift Managers Case
------------------------------------------------------------------
In class action lawsuit captioned as ROBERT E. STAFFORD, JR. on
behalf of himself and all others similarly situated, v. BOJANGLES'
RESTAURANTS, INC., a North Carolina Corporation, Case No.
3:20-cv-266-MOC (W.D.N.C.), the Plaintiff asks the Court for an
order:
1. granting conditional certification of a collective,
consisting of:
"all current and former non-exempt hourly shift managers
who were employed by Bojangles' Restaurants Inc. at any of
its United States locations beginning July 14, 2017, to
the present"; and
2. approving the proposed Notice of Collective Action Lawsuit
and the corresponding Consent to Become Party Plaintiff
form.
Stafford further asks the Court to:
a. Order Defendants to produce to Stafford's counsel, within
seven days, a computer-readable data file containing the
names, addresses, email addresses, telephone numbers,
dates of employment, store locations of employment, social
security numbers and dates of birth for all Class Members;
b. Order court-facilitated notice of this collective action
to the Class Members;
c. Authorize the Plaintiff to send the Notice and Consent, at
his expense, by First-Class U.S. Mail and email to all
Class Members to inform them of their right to opt-in to
this lawsuit, together with a postage-paid return envelope
addressed to Plaintiff's counsel; and
d. Order the posting of the Notice at all of the Defendants'
restaurant locations in a location where Class Members are
likely to view it.
Stafford seeks payment of unpaid minimum wage and overtime wages
owed to his and others similarly situated hourly employees working
as leasing agents due to violations of the Fair Labor Standards
Act.
Bojangles' Inc. is an American regional chain of fast food
restaurants, specializing in cajun-seasoned fried chicken, and
buttermilk biscuits that primarily serves the Southeastern United
States.[CC]
Attorney for the Plaintiff and Putative Class/Collective are:
L. Michelle Gessner, Esq.
GESSNER LAW, PLLC
602 East Morehead
Charlotte, NC 28202
Telephone: (704) 234-7442
Facsimile: (980) 206-0286
E-mail: michelle@mgessnerlaw.com
BREWSTER HOME: Website Inaccessible to Blind, Hecht Claims
----------------------------------------------------------
IRENE HECHT, on behalf of herself and all others similarly
situated, Plaintiffs v. BREWSTER HOME FASHIONS LLC, Defendant, Case
No. 1:20-cv-05719-JPO (S.D.N.Y., July 23, 2020) is a class action
complaint brought against Defendant for its alleged violation of
the Americans with Disabilities Act.
Plaintiff is visually impaired and legally blind.
According to the complaint, Plaintiff visited Defendant's website
using a popular screen reading software called NonVisual Desktop
Access on or around March 2020 with the intent of browsing and
potentially making a purchase. However, Defendant's website
effectively barred Plaintiff from being able to enjoy the
privileges and benefits of Defendant's public accommodation because
it lack variety of features and accommodations which denied
Plaintiff and other visually-impaired persons access equal to that
of a sighted individual.
The complaint alleges that Defendant failed to maintain and operate
its website in a way to make it fully accessible for Plaintiff and
for other blind or visually-impaired people.
Brewster Home Fashions LLC is a home improvement, wallpaper, and
décor company that owns and operates the website
www.brewsterwallcovering.com. [BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Tel: (732) 695-3282
Fax: (732) 298-6256
Email: yzelman@MarcusZelman.com
CALIFORNIA: Oregon Dist. Court Dismisses Blume Action
-----------------------------------------------------
In the case, JAMES BLUME, JOSE CASTANEDA, et al., individuals with
others and on behalf of the People of The State of California
similarly situated, Plaintiffs, v. STATE OF CA, C.O.L.A., CITY OF
L.A, L.A.S.C., STATE BAR OF CA. Mag. STEVE KIM, Jack K. CONWAY, JAN
W. ANDERSON, et al., Real Parties in Interest COMM. DREWRY,
MERCADO, LISA MACCARLEY, EMAHN, COUNTS, SEVAG NIGOGHOSIAN, GREG
BLAIR, SARAH OVERTON, ROBERT FELTON, STEPHEN RYKOFF, ROBERT GOMEZ,
DAVID A XAVIER MICHAEL FLANAGAN, WAYNE BOEHLE, OSCAR ACOSTA AND
CHASE BANK, et al., Defendants, Case No. 3:20-cv-1057-SI (D. Or.),
Judge Michael H. Simon of the U.S. District Court for the District
of Oregon granted the Plaintiff's application to proceed in forma
pauperis, but dismissed the case.
Mr. Castaneda is a self-represented litigant and resident of
California. He alleges that he is also known as "James Blume,
USMC," lists Mr. Blume in the caption as a Plaintiff in the case,
and signed the Complaint in the case "Jose Castaneda aka James
Blume USMC." A review of the Complaint, however, shows that the
only connection Mr. Blume has to the action is that Mr. Castaneda
alleges that Mr. Blume lost a case in California court and was
subject to a similar alleged fraudulent scheme and conspiracy by
California judges and attorneys. Judge Simon does not accept as
true Mr. Castaneda's allegation that he is also known as James
Blume.
Mr. Castaneda brings the suit against named Defendants the State of
California, the City and County of Los Angeles, the Los Angeles
Superior Court, U.S. Magistrate Judge for the Central District of
California Steve Kim, and attorneys Jack K. Conway and Jan W.
Anderson. Mr. Castaneda also lists in the caption "real parties in
interest," including former and current California state court
judges and attorneys. These persons are discussed in the Complaint
as if they are named Defendants. They are not, however, listed in
the proposed Summons. Mr. Castaneda alleges that the Defendants
and other judges and attorneys all engaged in a conspiracy of
fraud, theft, bribery, and other illegal acts to steal from
litigants in California, including Mr. Castaneda.
Mr. Castaneda alleges all causes of action against all the
Defendants. He alleges that all the Defendants are the agents,
partners, employees, or joint venturers of one another.
His first asserted cause of action is that a judicial system was
created in California to violate the civil rights of the litigants
by "selling" verdicts. His second alleged cause of action is
"sabotaging" evidence to assist a specific attorney with a bribe.
His third cause of action is perjury by a court officer. His
fourth cause of action of violation of due process. His fifth
cause of action is fraud on or by the courts. His sixth cause of
action alleges a violation of 42 U.S.C. Section 1983 by allowing
Mr. Castaneda to be represented by attorney Ehman Counts. His
seventh cause of action alleges a § 1983 claim for allowing court
officers and personnel to violate the law and engage in "mental
terrorism" against Mr. Castaneda. His eighth cause of action
alleges a claim under 42 U.S.C. Section 1985. His ninth cause of
action alleges judicial conspiracy. His tenth cause of action
alleges a claim under 18 U.S.C. Section 241 and 242.
Mr. Castaneda describes years of litigation and discrete acts by
attorneys and judges that Mr. Castaneda alleges were motivated by
greed and a desire to ensure that he was unsuccessful in all of his
cases. Some of his allegations are less than clear and many are
posed as questions.
The Plaintiff requests $1,955,000 that he alleges is the value of
costs incurred in eleven California court cases. He requests $2.3
million that he asserts is the "appraised value" of a "work
production order" from one of the California cases to prove
judicial fraud. He also requests $996,002.45 that he alleges was
denied by the California Court of Appeals in one of the California
cases . He further requests the "impeachment" of several attorneys,
punitive damages against one attorney, and the release of attorney
files.
Service of process has not yet occurred. Mr. Castaneda also filed
an application with the Court to proceed in forma pauperis.
Mr. Castaneda purports to bring the action on behalf of similarly
situated persons in the state of California. That would be a
putative class action. Mr. Castaneda, however, is proceeding pro
se without representation. Judge Simon notes that the Plaintiffs
proceeding pro se and without counsel, are not qualified to act as
class representatives as they are unable to fairly represent and
adequately protect the interests of the class.
Next, the Complaint consists of 24 single-spaced pages of rambling
allegations against not only the named Defendants, but numerous
additional judges and attorneys the Complaint characterizes as
"Defendants" despites those persons not being named as Defendants
in the caption. The Complaint discusses conduct from throughout
the last 11 years. It contains 26 pages of exhibits.
Judge Simon finds that the Plaintiff's Complaint fails to comply
with Rule 8 of the Federal Rules of Civil Procedure. Mr. Castaneda
will have the opportunity to replead at least some of his claims.
The Judge expects compliance with Rule 8 in any amended complaint.
As separate and additional grounds for dismissal, he assesses Mr.
Castaneda's Complaint as instructed by 28 U.S.C. Section 1915(e),
considering whether the Complaint requests relief from a defendant
who is immune, makes frivolous allegations, and fails to state a
claim.
Section 1915(e) instructs the Court to review whether a complaint
seeks monetary relief from a defendant who is immune from such
relief. Judge Simon finds that several of the Defendants are immune
from relief. The State of California is immune from suit in
federal court under the Eleventh Amendment. The Los Angeles
Superior Court is similarly immune under the Eleventh Amendment.
The judges are absolutely immune from liability for damages,
declaratory relief, and generally for injunctive relief sought as a
result of judicial acts performed in their judicial capacity.
The remaining named Defendants are the City and County of Los
Angeles, and two private attorneys, Jack K. Conway and Jan W.
Anderson. Mr. Castaneda does not allege sufficient facts regarding
the City and County of Los Angeles to state any claim for relief
against these Defendants. Mr. Castaneda does not specifically
identify City or County employees, policies, or practices, but
instead focuses his allegations on court employees and alleged
policies and practices. Accordingly, the claims against the City
and County are dismissed.
Judge Simon reviews Mr. Castaneda's claims against the two
attorneys. Mr. Castaneda's allegations fail to show that Mr.
Conway engaged in a conspiracy with agents or employees of the
state court to violate his constitutional rights, or were otherwise
in such a position of interdependence so as to be considered joint
participants. His allegations are hyperbolic, speculative, and
conclusory. Mr. Castaneda's claim is frivolous as that term is
used Section 1915(e) and fails to state a claim under Section
1983.
Regarding Ms. Anderson, Mr. Castaneda alleges that Ms. Anderson
moved to Oregon after "stealing" money from the probate case in
which she was involved and that she falsely asserted that there was
no money distribute in the estate. These allegations are
insufficient to show a conspiracy with state actors. Therefore,
Mr. Castaneda fails to state a claim under Section 1983 against Ms.
Anderson.
Mr. Castaneda's remaining causes of action can be liberally
construed as alleging state law claims for fraud, conversion,
unjust enrichment, and legal malpractice. Even assuming Mr.
Castaneda's allegations plausibly state a claim, these are claims
brought under state law and are insufficient to invoke the
jurisdiction of a federal court.
Judge Simon is dismissing Mr. Castaneda's claims brought under
federal law. Because he alleges that he a citizen of California,
and he does not allege complete diversity with Mr. Conway, who
appears also to be a citizen of California, it does not appear that
there is diversity jurisdiction in the case. Accordingly, Judge
Simon declines to invoke supplemental jurisdiction over Mr.
Castaneda's claims brought under state law.
The claims against the Defendants who are immune from suit are
dismissed without leave to replead. Although the Judge is
skeptical that Mr. Castaneda can cure the deficiencies identified
in the Order with respect to his claims against the remaining the
Defendants, he does not find that it is absolutely clear that no
amendment can cure the deficiencies.
Based on the foregoing, Judge Simon granted the Plaintiff's
application to proceed in forma pauperis. Because the Plaintiff
fails to state a claim and his claims against certain the
Defendants are barred by sovereign and judicial immunity, the case
is dismissed sua sponte.
The Plaintiff's claims against United State Magistrate Judge Steve
Kim and all the state court judges are dismissed with prejudice and
without leave to amend. His claim under 18 U.S.C. Sections 241 and
242 is dismissed with prejudice and without leave to amend. The
Plaintiff's claims under 42 U.S.C. Section 1983 against the State
of California, the California State Bar, and the Los Angeles
Superior Court are dismissed with prejudice and without leave to
amend. His remaining claims against the State of California, the
California State Bar, and the Los Angeles Superior Court are
dismissed without prejudice but without leave to amend in the
Court. The Plaintiff's remaining claims against the City of Los
Angeles, the County of Los Angeles, Jack K. Conway, and Jan W.
Anderson are dismissed without prejudice.
The Court allowed the Plaintiff to file not later than July 31,
2020, an Amended Complaint if he can cure the deficiencies
identified in the Opinion and Order.
A full-text copy of the Court's July 15, 2020 Opinion & Order is
available at https://is.gd/e72XLL from Leagle.com.
CAPITAL ONE: Court Dismisses TeWinkle Class Suit Under ECOA
-----------------------------------------------------------
In the case, BRADLEY TEWINKLE, for himself and all others similarly
situated, Plaintiff, v. CAPITAL ONE, N.A., at al., Defendants, Case
No. 19-CV-1002-JLS-HBS (W.D. N.Y.), Judge John L. Sinatra, Jr. of
the U.S. District Court for the Western District of New York
granted the Defendant's motion to dismiss.
On July 31, 2019, TeWinkle commenced the putative class action
under the Equal Credit Opportunity Act ("ECOA"). On Aug. 30, 2019,
the Court referred the case to Magistrate Judge Hugh B. Scott for
all proceedings under 28 U.S.C. Section 636(b)(1)(A) and (B). On
Aug. 26, 2019, Defendant Capital One moved to dismiss the
Complaint. The Plaintiff responded on Sept. 20, 2019 and the
Defendant replied on Sept. 27, 2019.
On Dec. 11, 2019, Judge Scott issued a Report and Recommendation
("R&R") recommending that the Defendant's motion should be granted
without prejudice to the Plaintiff having leave to brief whether an
Amended Complaint should be allowed.
The Plaintiff filed objections to the R&R on Dec. 26, 2019,
alleging that Judge Scott erred in finding that revocation of the
Plaintiffs existing credit relationship isn't actionable under the
ECOA and in recommending dismissal based on the Defendant's factual
denial of the Plaintiffs well-pled allegation that the Defendant
failed to provide the required notice. The Plaintiff also argues
that he sustained a concrete injury, and that the R&R erred in
concluding otherwise. The Defendant filed a response on Jan. 23,
2020, and the Plaintiff replied on Feb. 12, 2020.
Judge Sinatra has carefully reviewed the thorough R&R, the record
in the case, the objection and response, and the materials
submitted by the parties. Based on that de novo review, Judge
Sinatra accepts and adopts Judge Scott's recommendation to grant
the Defendant's motion to dismiss and to afford the Plaintiff the
opportunity to move for leave to amend.
For the reasons he stated and in the R&R, Judge Sinatra granted the
Defendant's motion to dismiss. The Complaint is dismissed without
prejudice to a motion for leave to amend, to be filed within 30
days of the date of the Order and in accordance with Rule 15 of the
Federal Rules of Civil Procedure and Local Rule 15. If such motion
is made within 30 days of the date of the Order, then the case is
referred back to Judge Scott for further proceedings consistent
with the referral order of Aug. 30, 2019. If no such application
is timely made, then the dismissal is with prejudice, and the Clerk
of Court will close the case without further order. A full-text
copy of the Court's May 29, 2020 Decision & Order is available at
https://is.gd/oQaK4A from Leagle.com.
Plaintiff, on June 29, 2020, filed a notice of appeal on the
Court's order on the Motion to Dismiss.
CENTENE CORP: 9th Cir. Dismisses Appeal in Ambetter Policies Suit
-----------------------------------------------------------------
Centene Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 28, 2020 for the
quarterly period ended June 30, 2020, that the U.S. Court of
Appeals for the Ninth Circuit has dismissed the plaintiff's appeal
from a lower court order denying class certification.
The plaintiff appealed the class certification denial to the 9th
Circuit, but the 9th Circuit dismissed the plaintiff's appeal on
procedural grounds.
On January 11, 2018, a putative class action lawsuit was filed by
Cynthia Harvey and Steven A. Milman against the Company and certain
subsidiaries in the U.S. District Court for the Eastern District of
Washington.
The complaint alleges that the Company failed to meet federal and
state requirements for provider networks and directories with
regard to its Ambetter policies, denied coverage and/or refused to
pay for covered benefits, and failed to address grievances
adequately, causing some members to incur unexpected costs.
In March 2018, the Company filed separate motions to dismiss each
defendant. In July 2018, the plaintiff, Cynthia Harvey, voluntarily
filed a First Amended Complaint that removed Steven A. Milman as a
plaintiff, dropped Centene Corporation and Superior Health Plan as
defendants, abandoned certain claims, narrowed the putative class
to Washington State only, and added Centene Management Company as a
defendant.
In August 2018, the Company moved to dismiss the First Amended
Complaint. In response, the plaintiff voluntarily filed a Second
Amended Complaint.
In September 2018, the Company filed a motion to dismiss the Second
Amended Complaint. On November 21, 2018, the Court granted in part
and denied in part the Company's motion to dismiss.
The plaintiff filed a Third Amended Complaint, on November 28,
2018, against Centene Management Company and Coordinated Care
Corporation (Defendants), both subsidiaries of the Company.
Defendants filed an answer on December 12, 2018. The plaintiff
filed a motion for class certification on January 8, 2020. The
Company opposed and the Court denied the class certification.
The plaintiff appealed the class certification denial to the 9th
Circuit, but the 9th Circuit dismissed the plaintiff's appeal on
procedural grounds.
Centene said, "At this time, the case is moving forward as an
individual lawsuit between a single member and Coordinated Care
Corporation. The Company intends to vigorously defend itself
against these claims."
Centene Corporation, incorporated on September 26, 2001, is a
healthcare company. The Company provides a portfolio of services to
government sponsored healthcare programs, focusing on under-insured
and uninsured individuals. The Company operates through two
segments: Managed Care and Specialty Services. It provides
member-focused services through locally based staff by assisting in
accessing care, coordinating referrals to related health and social
services and addressing member concerns and questions. It also
provides education and outreach programs to inform and assist
members in accessing appropriate healthcare services. The company
is based in St. Louis, Missouri.
CHARLOTTE'S WEB: Moqeet Sues Over Unlawful Sale of CBD Products
---------------------------------------------------------------
Rasunae Moqeet, individually and on behalf of all others similarly
situated v. CHARLOTTE'S WEB, INC., a Delaware Corporation, Case No.
2:20-cv-07092 (C.D. Cal., Aug. 6, 2020), is brought on behalf of
consumers, who purchased the Defendant's CBD products and have
suffered injuries caused by its false, fraudulent, unfair,
deceptive, and misleading practices in selling and marketing the
Products.
The Products include "CBD Oils", "CBD Capsules", "CBD Gummies", and
"CBD Isolate."
The Defendant warrants that all of the Products contain cannabidiol
(CBD) and are legal for consumers to purchase for their personal
use and not for resale. The Defendant's Products, however, are
illegal to sell, according to the complaint. The CBD (cannabidiol)
Product market is a multibillion-dollar business enterprise that is
lucrative for its market participants and is expected to further
expand into a $16 billion-dollar industry by 2025. With knowledge
of growing consumer demand for CBD Products, the Defendant has
intentionally marketed and sold illegal CBD products.
The Plaintiff alleges that all of Defendant's Products are
mislabeled as Dietary Supplements and/or contain the illegal
dietary ingredient CBD. Every product contains a Supplement Facts
section on the back of the container which is reserved for dietary
supplements and explicitly state "Dietary Supplement" on the front
of the packaging. The FDA has stated that CBD may not be labeled as
a dietary ingredient or legally be contained within a dietary
supplement. The Plaintiff insists that the Defendant's Products
cannot be dietary supplements because they do not meet the
definition of a dietary supplement under Section 201(ff) of the
FD&C Act.
The Plaintiff purchased Charlotte's Web Hemp Oil and Charlotte's
Web Simply Hemp Capsules.
The Defendant formulates, manufactures, advertises, and sells the
CBD Products throughout the United States, including in the State
of California.[BN]
The Plaintiff is represented by:
Alex R. Straus, Esq.
GREG COLEMAN LAW PC
16748 McCormick Street
Los Angeles, CA 91436
Phone: (917) 471-1894
Email: alex@gregcolemanlaw.com
- and –
Rachel Soffin, Esq.
Justin Day, Esq.
GREG COLEMAN LAW PC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Phone: 865-247-0080
Email: rachel@grecolemanlaw.com
justin@gregcolemanlaw.com
- and -
Jonathan Shub, Esq.
Kevin Laukaitis, Esq.
SHUB LAW FIRM LLC
134 Kings Highway E., 2nd Floor
Haddonfield, NJ 08033
Phone: 856.772.7200
Email: jshub@shublawyers.com
klaukaitis@shublawyers.com
- and -
Nick Suciu III, Esq.
BARBAT, MANSOUR, SUCIU & TOMINA PLLC
6905 Telegraph Rd., Suite 115
Bloomfield Hills, MI 48301
Phone: 313-303-3472
Email: nicksuciu@bmslawyers.com
- and –
Frederick J. Klorczyk III, Esq.
Neal J. Deckant, Esq.
Brittany S. Scott, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Phone: (925) 300-4455
Facsimile: (925) 407-2700
Email: fklorczyk@bursor.com
CHARLOTTE-MECKLENBURG: Williams Suit Seeks to Certify ADEA Class
----------------------------------------------------------------
In class action lawsuit captioned as PRISCILLA WILLIAMS, KIMBERLY
NAPIER, PENNY WOLFE and SANDY WIZZARD individually and on behalf of
all others similarly situated, v. THE CHARLOTTE-MECKLENBURG
HOSPITAL AUTHORITY d/b/a ATRIUM HEALTH, INC. f/k/a Carolinas
HealthCare System, Case No. 3:20-cv-0242–RJC (W.D.N.C.), the
Plaintiffs ask the Court for an order (i) granting conditional
certification of the Age Discrimination in Employment Act
collective action and (ii) authorizing initial and subsequent
Court-supervised Notices to:
"all current and former employees who were employed by the
Charlotte-Mecklenburg Hospital Authority, Atrium Health,
Inc., and the Carolinas HealthCare System at any of its
United States locations beginning April 23, 2017 to the
present who are over age 40 and who directly or indirectly
reported to Kerry Bratcher."
The Plaintiffs further move the Court to grant the following
relief:
a. Order Defendants to produce to Plaintiffs' counsel, within
seven days, a computer-readable data file containing the
names, addresses, email addresses, telephone numbers,
dates of employment, social security numbers and dates of
birth for all Potential Plaintiffs;
b. Order court-facilitated notice of this collective action
to the Potential Plaintiffs;
c. Authorize Plaintiffs to send the Notice and Consent, at
their expense, by First-Class U.S. Mail and email to all
Potential Plaintiffs to inform them of their right to opt-
in to this lawsuit, together with a postage-paid return
envelope addressed to Plaintiffs' counsel;
d. Authorize a 90-day opt-in period for Potential Plaintiffs
to opt-in; and
e. Order the posting of the Notice at Defendants' facilities
in locations where currently employed Potential Plaintiffs
are likely to view it.
The Plaintiffs also ask the Court that the "opt-in period" commence
seven days after the Defendants produce the requested document
containing information pertaining to Potential Plaintiffs, so as to
provide the Plaintiffs' counsel with adequate time to prepare and
send the Court's approved Notice.[CC]
Attorney for the Plaintiffs and Putative Class Members are:
L. Michelle Gessner, Esq.
GESSNER LAW, PLLC
602 East Morehead
Charlotte, NC 28202
Telephone: (704) 234-7442
Facsimile: (980) 206-0286
E-mail: michelle@mgessnerlaw.com
CHEBURECK INC: Faces Lopez Wage-and-Hour Suit in E.D.N.Y.
---------------------------------------------------------
GABRIEL LOPEZ QUINO and ERICA LOPEZ QUINO, individually and on
behalf of all others similarly situated, Plaintiffs v. CHEBURECK
INC. D/B/A SHASHLICHNAYA and ISAK SIONOV A.K.A ISAK MASTYROV,
Defendants, Case No. 1:20-cv-03393 (E.D.N.Y., July 28, 2020) is a
class action against the Defendants for their failure to compensate
the Plaintiffs and all others similarly situated restaurant
employees the required minimum wage, overtime compensation, and
spread of hours pay for all hours worked and failure to maintain
accurate recordkeeping of their worked hours in violation of the
Fair Labor Standards Act, the New York Labor Law, and New York Wage
Orders.
Plaintiff Gabriel Lopez and Plaintiff Erica Lopez were employed as
food preparers at the Defendants' restaurant located at 96-30
Queens Blvd, Rego Park, New York from approximately August 2017
until March 2020 and from approximately July 2019 until March 15,
2020, respectively.
Chebureck Inc., d/b/a Shashlichnaya, is an operator and owner of a
kosher Middle Eastern Russian restaurant located at 96-30 Queens
Blvd, Rego Park, New York. [BN]
The Plaintiffs are represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
CHESTNUT HOLDINGS: Further Discovery in Huggins FLSA Suit Ordered
-----------------------------------------------------------------
In the case, ALEJANDRO HUGGINS, on behalf of himself and others
similarly situated, Plaintiff, v. CHESTNUT HOLDINGS INC., LLC, and
JONATHAN WIENER, Defendants, Case No. 1425 U 8-cv-1037 (PAC) (S.D.
N.Y.), Judge Paul A. Crotty of the U.S. District Court for the
Southern District of New York granted in part Huggins' motion for
conditional certification of a Fair Labor Standards Act ("FLSA")
collective action pursuant to 29 U.S.C. Section 216(b).
The Plaintiff seeks conditional certification of a collective
consisting of current and former superintendents of all residential
apartment buildings owned by the Defendants and who worked for the
Defendants between Feb. 6, 2012 and the present day and were not
paid in violation of the FLSA.
Judge Crotty finds that the Plaintiff has made the required "modest
factual showing" that there may be additional potential collective
action members who were victims of a common policy or plan that
allegedly violated the law. The Plaintiff has submitted his own
declaration in which he describes his allegations that the
Defendants failed to pay him minimum wage and overtime, and in
which he recounts his conversations with two superintendents at
other buildings owned by the Defendants who allegedly suffered the
same violations. The declaration of opt-in Plaintiff Clinton Jack
makes the same allegations, and recounts discussions with two more
superintendents who described the same alleged violations on the
part of the Defendants. It is enough to indicate that there is a
broader class of building superintendents employed by the
Defendants who may have been subject to the same alleged FLSA
violations.
The Defendants encourage the Court to engage in a searching
examination of the Plaintiffs submissions. They ask the Court to
decline to exercise its discretion and not conditionally certify
the collective action. But the Plaintiffs need not put forth the
particularized information that the Defendants would have the Court
demand of them at this stage; they can instead pass the bar for
conditional certification relying on their own pleadings,
affidavits, declarations, or the affidavits and declarations of
other class members.
The Defendants also argue that they do not constitute a joint
employer of the Plaintiffs for purposes of an action under the FLSA
and urge the Court to deny conditional certification of the
collective action on these grounds as well. Separately, the
Plaintiffs ask for equitable tolling of the FLSA statute of
limitations from Oct. 30, 2018 to the date of the Order.
The Judge cannot determine these issues until further discovery is
conducted. These issues will be considered at step two of the
collective action determination.
Based on the foregoing, Judge Crotty determined that any decision
on equitable tolling and joint-employer status would be premature
until further discovery is conducted. He directed the Parties to
meet and confer on the disclosure of contact information for
putative opt-in members of the collective action and on an
appropriate notice and consent form to be jointly submitted to the
Court no later than July 10, 2020.
A full-text copy of the District Court's May 29, 2020 Opinion &
Order is available at https://is.gd/Ac6myC from Leagle.com.
CIRCLE K STORES: Tomaszewski Sues Over Unwanted Marketing Texts
---------------------------------------------------------------
James Tomaszewski and James Cook, Jr., individually and on behalf
of all others similarly situated v. Circle K Stores, Inc., a Texas
corporation, Case No. 2:20-cv-01569-SMB (D. Ariz., Aug. 6, 2020),
seeks to stop the Defendant from violating the Telephone Consumer
Protection Act by sending unsolicited autodialed text messages to
consumers, who are registered on the Do Not Call registry, and to
otherwise obtain injunctive and monetary relief for all persons
injured by the Defendant's conduct.
Part of Circle K's marketing plan includes sending text messages en
masse to consumers regarding promotions and other incentives that
are meant to bring consumers into Circle K's chain of stores. Such
text messages are sent using an autodialer and to consumers
registered on the DNC without the necessary express written
consent, says the complaint.
The Plaintiffs received numerous unsolicited text messages from
Circle K to their cell phone numbers registered on the DNC without
ever having given Circle K consent to call or text message them. In
response to these text messages, the Plaintiffs file this class
action lawsuit seeking injunctive relief, requiring Circle K to
cease sending unsolicited, autodialed text messages to consumers'
cellular telephone numbers who are registered on the DNC, as well
as an award of statutory damages to the members of the Class.
Plaintiff Tomaszewski is a Michigan resident. Plaintiff Cook is a
Florida resident.
Circle K runs a chain of gas stations and convenience stores
throughout the US.[BN]
The Plaintiffs are represented by:
Nathan Brown, Esq.
BROWN PATENT LAW
15100 N 78th Way, Suite 203
Scottsdale, AZ 85260
Phone: 602-529-3474
Email: Nathan.Brown@BrownPatentLaw.com
- and -
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Phone: (305) 469-5881
Email: kaufman@kaufmanpa.com
COACH INC: Parties in Marino, Et Al. Cases File Joint Letter
------------------------------------------------------------
Kevin Cyrulnik of Kasowitz Benson Torres LLP, counsel of Coach
Inc., has submitted a Joint Letter to the U.S. District Court for
the Southern District of New York of the parties' responses to
certain concerns of the Court in class action complaints filed
against Coach Inc., et al.
The cases are MICHELLE MARINO, individually and on behalf of all
others similarly situated, Plaintiff, v. COACH, INC., Defendant;
MONICA RAEL, on behalf of herself and all others similarly
situated, Plaintiff, v. COACH, INC., Defendant; DEBORAH ESPARZA,
individually and on behalf of all others similarly situated,
Plaintiff, v. COACH, INC., Defendant; CERA HINKEY, on behalf of
herself and all others situated, Plaintiff, v. COACH, INC.,
Defendant, Case Nos. 16-CV-1122 (VEC), 16-CV-3773 (VEC), 16-CV-3677
(VEC), 16-CV-5320 (VEC) (S.D. N.Y.).
Judge Valerie Caproni directed the parties in the lawsuits to file
a joint letter addressing the issues she raised before ruling on
the Plaintiffs' unopposed motion for preliminary approval of the
proposed class action settlement. The Judge said she needs
clarification or additional information before she can rule on the
Plaintiffs' motion. Deadline on the required Letter was extended
after the Court's original order. A full-text copy of the Court's
May 29, 2020 Order is available at https://is.gd/spuR1C from
Leagle.com.
Accordingly, the Parties, through counsel at Kasowitz Benson,
submitted a Joint Letter on July 7, 2020, a copy of which is
available at https://is.gd/KEycuA from PacerMonitor.com.
Among other things, the Joint Letter notes these items:
1. Potential inconsistency in class definitions: To address the
Court's concern with any perceived inconsistency in the class
definitions set forth in the documents identified by the Court, the
Parties intend to amend and re-file the settlement agreement,
memorandum of law in support of the motion and the proposed order
to reflect the class definition set forth in the long-form notice.
2. The reliability and availability of CRM data: Tapestry re-ran
its numbers to run on the CRM database through and include June 20,
2020. There are currently 20,750,135 customers with valid email
addresses in the CRM database. Of those, Tapestry believes that
all were obtained directly from its customers, and that
all are accurate and up-to-date. As of June 20, 2020, 22.13% of
customers in the CRM database have just a name or a name and a
telephone number, but no associated (valid) email address or
mailing address.
3. The likelihood of reliably identifying missing email addresses:
The Settlement Administrator will identify the email addresses of
Settlement Class Members whose email addresses are not included in
the CRM database by utilizing the data points provided by the
Defendants (e.g., name, mailing address and/or phone number) as a
validity check against commercially available first- and
third-party data providers' records to identify email addresses
associated with those same data points. According to the
Settlement Administrator, and based on estimates from the data
providers, this process willcapture current email addresses for
approximately 90 to 95.5% of the 4.9 million individuals for whom
Defendants have non-email contact information (mailing address
and/or telephone numbers), or approximately 4.050 to 4.3 million
individuals.
4. Read receipts for emailed notices: The Settlement Administrator
does not recommend using read receipts in connection with the email
notice in this case. Not only may read receipts ineffectively
track receipt of email notice by Settlement Class Members, but the
use of read receipts could impede reaching Settlement Class Members
as read receipts may cause notice emails to be flagged as spam by
Internet service providers (ISPs). Amongst other data, the
Settlement Administrator will report the number of emails sent and
the number of undeliverable emails to the Court at the conclusion
of the Notice Program.
5. Clarifying the internet banner notice plan: The proposed
internet banner notice plan will utilize the leading method of
buying digital advertisements in the United States, Programmatic
Display Advertising. Out of an abundance of caution, the Parties
have agreed to substantially increase the internet banner notice
portion of the Notice Program -- specifically, a tenfold increase
from 2,367,143 impressions to 22,114,428 impressions -- to reach
the Target Audience.
6. Notice by publication: The two newspapers in which publication
notice will be included are USA Today (National Edition) and USA
Today (California Regional Edition). The publication notice will
be published in the National Edition of USA Today on one day. The
publication notice will be published in the California Regional
Edition of USA Today once a week for four consecutive weeks (one
publication per week).
7. Compliance with California law: In order to satisfy the notice
requirements of the California Consumer Legal Remedies Act (CLRA),
the publication notice will include four (4) one-quarter-page black
and white insertions in the California Regional Edition of USA
Today. The ads will feature notice of the Settlement and will run
for four consecutive weeks (one publication per week).
CORELOGIC INC: CREDCO Faces Fernandez Suit Over Background Check
----------------------------------------------------------------
CoreLogic, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2020 for the
quarterly period ended June 30, 2020, that CoreLogic Credco, LLC is
defending against a putative class action suit initiated by Marco
Fernandez.
In June 2020, CoreLogic Credco, LLC ("Credco") was named as a
defendant in Marco Fernandez v. CoreLogic Credco, LLC, a putative
class action lawsuit filed in California Superior Court in San
Diego County.
The named plaintiff alleges that Credco provided a lender with a
consumer report about him that erroneously indicated he is on the
Office of Foreign Asset Control's list of Specially Designated
Nationals and Blocked Persons ("OFAC List"). He further alleges
that Credco failed to provide him with a copy of the OFAC List
designation upon request, failed to notify him of what entities had
received such a notification in the past, and failed to respond to
his effort to dispute the item.
He seeks to represent three classes and four subclasses based upon
these allegations, and asserts seven claims under the Fair Credit
Reporting Act, the California Credit Reporting Agencies Act, and
California's Unfair Competition law.
The Company has removed the case to the US District Court for the
Southern District of California, and intends to vigorously defend
itself in the litigation.
CoreLogic, Inc., together with its subsidiaries, provides property
information, insight, analytics, and data-enabled solutions in
North America, Western Europe, and the Asia Pacific. The company
operates in two segments, Property Intelligence & Risk Management
Solutions (PIRM) and Underwriting & Workflow Solutions (UWS). The
company was formerly known as The First American Corporation and
changed its name to CoreLogic, Inc. in June 2010. CoreLogic, Inc.
was incorporated in 1894 and is headquartered in Irvine,
California.
CORELOGIC INC: RPS Unit Defending Against Brown Class Suit
----------------------------------------------------------
CoreLogic, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2020 for the
quarterly period ended June 30, 2020, that CoreLogic Rental
Property Solutions, LLC, is defending against a putative class
action suit initiated by Terry Brown.
In May 2020, Rental Property Solutions, LLC ("RPS") was named as a
defendant in Terry Brown v. CoreLogic Rental Property Solutions,
LLC, a putative class action lawsuit filed in the US District Court
for the Eastern District of Virginia.
The named plaintiff alleges that RPS prepared a background
screening report about him that included a sex offender record that
did not relate to him.
He seeks damages under the Fair Credit Reporting Act on behalf of
himself and a class of similarly situated consumers, as well as a
subclass of consumers for whom misattributed sex offender records
were removed following a dispute.
The Company intends to vigorously defend itself in the litigation.
CoreLogic, Inc., together with its subsidiaries, provides property
information, insight, analytics, and data-enabled solutions in
North America, Western Europe, and the Asia Pacific. The company
operates in two segments, Property Intelligence & Risk Management
Solutions (PIRM) and Underwriting & Workflow Solutions (UWS). The
company was formerly known as The First American Corporation and
changed its name to CoreLogic, Inc. in June 2010. CoreLogic, Inc.
was incorporated in 1894 and is headquartered in Irvine,
California.
CORELOGIC INC: Settlement Reached in Feliciano Suit
---------------------------------------------------
CoreLogic, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2020 for the
quarterly period ended June 30, 2020 that the company has reached
an agreement to resolve the Claudinne Feliciano, et. al., v.
CoreLogic SafeRent, LLC, a putative class action suit.
In July 2017, Rental Property Solutions, LLC ("RPS") was named as a
defendant in Claudinne Feliciano, et. al., v. CoreLogic SafeRent,
LLC, a putative class action lawsuit in the US District Court for
the Southern District of New York.
The named plaintiff alleges that RPS prepared a background
screening report about her that contained a record of a New York
Housing Court action without noting that the action had previously
been dismissed.
On this basis, she seeks damages under the Fair Credit Reporting
Act and the New York Fair Credit Reporting Act on behalf of herself
and a class of similarly situated consumers with respect to reports
issued during the period of July 2015 to the present.
In July 2019, the District Court issued an order certifying a class
of approximately 2,000 consumers.
In June 2020, the company reached an agreement to resolve the case,
which the company expects to be finalized in the coming months. The
settlement amount has been recorded for the quarter ended June 30,
2020.
CoreLogic, Inc., together with its subsidiaries, provides property
information, insight, analytics, and data-enabled solutions in
North America, Western Europe, and the Asia Pacific. The company
operates in two segments, Property Intelligence & Risk Management
Solutions (PIRM) and Underwriting & Workflow Solutions (UWS). The
company was formerly known as The First American Corporation and
changed its name to CoreLogic, Inc. in June 2010. CoreLogic, Inc.
was incorporated in 1894 and is headquartered in Irvine,
California.
CULLEN/FROST: Defends Class Suit Seeking PPP Loan Agent Fees
------------------------------------------------------------
Cullen/Frost Bankers, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that the company defends a
purported class action suit that alleges that the company refuses
to pay agent fees to purported agents of borrowers under the
Paycheck Protection Program (PPP) in violation of Small Business
Administration ("SBA") regulations.
In April of 2020, purported class action lawsuits were filed
against Frost Bank in each of Federal and Texas State courts
alleging certain violations of law in connection with Frost Bank's
participation in the Paycheck Protection Program (PPP).
Frost Banks's motion to dismiss with prejudice the Federal lawsuit
was granted and as a result the Federal lawsuit is resolved.
The Texas State court lawsuit has also been favorably resolved.
In May of 2020, a purported class action lawsuit was filed against
Frost Bank alleging, among other claims, that Frost Bank had
refused to pay agent fees to purported agents of borrowers under
the PPP in violation of Small Business Administration ("SBA")
regulations.
Frost Bank believes the claims in the agent fee case to be without
merit.
Based in San Antonio, Tex., Cullen/Frost Bankers, Inc. is a
financial holding company and a bank holding company. Through its
subsidiaries, the Company provides products and services throughout
numerous Texas markets, including commercial and consumer banking,
trust and investment management, mutual funds, investment banking,
insurance, brokerage, leasing, asset-based lending, treasury
management and item processing.
CVS HEALTH: Court Refuses to Dismiss Labourers Securities Suit
--------------------------------------------------------------
The New York Supreme Court, New York County, issued a Decision and
Order denying the Defendants' motion to dismiss or stay the case
captioned LABOURERS' PENSION FUND OF CENTRAL AND EASTERN CANADA,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED v. CVS
HEALTH CORPORATION, LARRY MERLO, DAVID DENTON, and EVA BORATTO,
Case No. 651700/2019 (N.Y. Sup.).
The Court ruled that:
-- the motion of Defendants CVS Health Corporation, Larry J.
Merlo, David M. Denton, and Eva C. Boratto to dismiss the
complaint is denied;
-- the Defendants are directed to answer the complaint within
20 days of this decision and order's entry onto NYSCEF by
the Court; and
-- the parties shall meet and confer and submit a proposed
preliminary conference order to the Court via e-mail 20
days after the Defendants' answer is filed.
CVS, a Delaware corporation located in Rhode Island, operates
retail pharmacies.
The case concerns the interplay between CVS's May 2015 acquisition
of nonparty Omnicare, which was then the nation's largest provider
of pharmacy services to long-term care facilities (2015
Acquisition) and CVS's acquisition of nonparty Aetna Inc. (Aetna),
an insurance company, on November 28, 2018 (Aetna Acquisition). CVS
issued new shares of CVS common stock directly to Aetna
shareholders, including Plaintiff Labourers' Pension Fund of
Central and Eastern Canada (LBF), a pension plan to 99,160
employees.
In December 2017, CVS announced its decision to acquire Aetna. CVS
filed an amended registration statement for the Aetna Acquisition
on February 9, 2018, incorporating its annual and quarterly
reports. The Aetna Acquisition closed on November 28, 2018, nine
months after CVS filed its registration statement and 10-K. CVS
represented the 2015 Acquisition as a significant expansion of
CVS's business into pharmaceutical care for assisted living and
long-term care (LTC) facilities.
The Plaintiff alleges that the Defendants painted a rosy picture of
the 2015 Acquisition until the Aetna Acquisition closed, at which
point CVS finally disclosed an overhaul of Omnicare's management,
new financial projections, and booked an impairment of over $6
billion, or 93% of Omnicare's goodwill value, for issues that
existed for years. CVS's stock price plunged 28%.
The Plaintiff also alleges that the registration statement and
prospectus (together, Registration Statement) issued to facilitate
the Aetna Acquisition were materially misleading. Specifically,
tghe Plaintiff alleges that the Registration Statement contained
four categories of misleading statements and omissions, including:
(1) CVS's goodwill; (2) CVS's loss of clients and inability to win
new business; (3) solvency of CVS's customers; and (4) integration
and success of prior CVS acquisitions.
The Defendants' motion to stay this action is denied. The Court
says the Defendants have not even addressed certain factors for a
stay, let alone demonstrated that they will be prejudiced without a
stay.
The Defendants' motion to dismiss is denied. The Court opines that
it will not deprive the Plaintiffs of their right to redress the
alleged violations of the Securities Act of 1933 because there are
claims under the Securities Exchange Act of 1934 pending in Rhode
Island.
A full-text copy of the Supreme Court's June 1, 2020 Decision and
Order is available at https://tinyurl.com/y7s44jfj from
Leagle.com.
DC CONSTRUCTION: Class of Employees Certified in Imel FLSA Suit
---------------------------------------------------------------
The U.S. District Court for the Southern District of Indiana,
Indianapolis Division, issued an order granting the Plaintiff's
Motion for Conditional Certification in the case captioned MICHAEL
IMEL, on behalf of himself and all others similarly situated v. DC
CONSTRUCTION SERVICES, INC., and DUSTIN CALHOUN, Case No.
1:19-cv-0634-TWP-MPB (S.D. Ind.).
The Court conditionally certifies the FLSA claim as a collective
action for the following class:
All present and former hourly employees of DC Construction
Services, Inc. who were employed on or after February 1,
2016 who had/have time deducted from their time worked as a
punishment or for a lunch break without the employee noting
that a lunch break was taken.
On February 12, 2019, Mr. Imel initiated this cause of action on
behalf of himself and other employees of DC Construction alleging
that DC Construction and Calhoun violated the Fair Labor Standards
Act ("FLSA") by willfully failing to pay its hourly employees for
all overtime hours worked over 40 hours in a work week and
illegally deducting time from its hourly employees' time worked for
purposes of punishment and for lunch breaks.
Therefore, the Court concludes that Mr. Imel has met his burden of
making a modest factual showing that other hourly employees are
similarly situated potential plaintiffs to conditionally certify a
collective action against the Defendants.
Accordingly, Mr. Imel's Motion for Conditional Certification,
Expedited Opt-In Discovery, and Court-Supervised Notice to
Potential Opt-In is GRANTED.
The parties shall proceed as follows:
1. Within fourteen (14) days of this Order, the Defendants shall
fully answer the Plaintiff's Expedited Opt-In Discovery, and shall
provide to Plaintiff a spreadsheet containing the names, last known
home addresses (including zip codes), last known telephone numbers,
last known email addresses, and employment dates (in Microsoft
Office Excel format) of all present and former hourly employees of
DC Construction Services, Inc. who were employed on or after
February 1, 2016, who had/have time deducted from their time worked
as a punishment or for a lunch break without the employee noting
that a lunch break was taken.
2. Within ten (10) days of this Order, the parties shall submit to
the Court proposed language for notification and consent forms to
be issued via First-Class Mail and Email, apprising potential
plaintiffs of their rights under the FLSA to opt in as parties to
this litigation. In drafting the proposed notification language,
the parties should be scrupulous to respect judicial neutrality and
take care to avoid even the appearance of judicial endorsement of
the merits of the action. Hoffman-LaRoche Inc. v. Sperling, 493
U.S. 165, 174 (1989).
3. The potential plaintiffs shall have sixty (60) days after the
deadline for mailing of the Notice of Right to Join Lawsuit to
return a Consent to Join form to opt-in to this litigation, unless
the parties agree to permit late filings or good cause can be shown
as to why the form was not returned prior to the deadline.
The Court directs the parties to contact the Magistrate Judge to
schedule the next status conference.
A full-text copy of the District Court's June 1, 2020 Entry is
available at https://tinyurl.com/y83ch9js from Leagle.com.
DISCOVER FINANCIAL: B&R Supermarket Class Action Ongoing
--------------------------------------------------------
Discover Financial Services said in its Form 10-Q Report filed
with the Securities and Exchange Commission on July 27, 2020 for
the quarterly period ended June 30, 2020, that the company
continues to defend a class action suit entitled, B&R Supermarket,
Inc., d/b/a Milam's Market, et al. v. Visa, Inc. et al.
On March 8, 2016, a class action lawsuit was filed against the
Company, other credit card networks, other issuing banks, and EMVCo
in the U.S. District Court for the Northern District of California
(B&R Supermarket, Inc., d/b/a Milam's Market, et al. v. Visa, Inc.
et al.) alleging a conspiracy by defendants to shift fraud
liability to merchants with the migration to the EMV security
standard and chip technology.
Plaintiffs assert joint and several liability among the defendants
and seek unspecified damages, including treble damages, attorneys'
fees, costs and injunctive relief.
In May 2017, the Court entered an order transferring the entire
action to a federal court in New York that is presiding over
certain related claims that are pending in the actions consolidated
as MDL 1720.
On March 11, 2018, the Court entered an order denying the
plaintiffs' motion for class certification without prejudice to
filing a renewed motion. Plaintiffs filed a renewed motion for
class certification on July 16, 2018.
Defendants filed their Opposition to Class Certification on March
15, 2019; a hearing date is yet to be scheduled.
Discover Financial said, "The Company is not in a position at this
time to assess the likely outcome or its exposure, if any, with
respect to this matter, but will seek to vigorously defend against
all claims asserted by the plaintiffs."
No further updates were provided in the Company's SEC report.
Discover Financial Services operates as a credit card issuer and
electronic payment services company. The Company issues credit
cards and offers student and personal loans, as well as savings
products such as certificates of deposit and money market accounts.
Discover Financial Services manages automated teller machine
networks. The company is based in Riverwoods, Illinois.
DYNATA LLC: Perrong Sues Over Unsolicited Telemarketing Calls
-------------------------------------------------------------
ANDREW PERRONG, individually and on behalf of a class of all
persons and entities similarly situated, Plaintiff v. DYNATA, LLC,
Defendant, Case No. 3:20-cv-01040 (D. Conn., July 23, 2020) is a
class action complaint brought against Defendant for alleged
illegal telemarketing practices in violation of the Telephone
Consumer Protection Act.
According to the complaint, Defendant placed three unsolicited
calls to Plaintiff's telephone number 215-947-XXXX on July 2 and
July 3, 2020 in an attempt to make survey cold calls on behalf of
itself and its clients. Defendant allegedly used an automatic
telephone dialing system (ATDS) in placing calls to Plaintiff's
telephone number even without Plaintiff's prior express written
consent.
The complaint asserts that Defendant's automated calls invaded the
privacy of Plaintiff and other similarly situated who received such
calls and they were temporarily deprived of legitimate use of their
phones.
Dynata, LLC provides survey and marketing services. [BN]
The Plaintiff is represented by:
Anthony Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Tel: (617) 485-0018
Fax: (508) 318-8100
Email: anthony@paronichlaw.com
EASTERN MUSHROOM: Bid to Amend Winn-Dixie Antitrust Suit Denied
---------------------------------------------------------------
In the case, WINN-DIXIE STORES, INC., et al., Plaintiffs, v.
EASTERN MUSHROOM MARKETING COOPERATIVE, et al., Defendants, Case
No. 15-6480 (E.D. Pa.), Judge Berle M. Schiller of the U.S.
District Court for the Eastern District of Pennsylvania denied the
Plaintiffs' motion for leave to amend their complaint to add a new
theory of antitrust liability and to expand the alleged antitrust
period by two years.
Winn-Dixie and Bi-Lo have sued various actors in the mushroom
industry for violations of antitrust law. The case is the last in
a long-running series of actions accusing the Eastern Mushroom
Marketing Cooperative, its members, and various affiliates of
unlawfully colluding to inflate the price of fresh agaricus
mushrooms. The saga began in February 2006, when WM Rosenstein &
Sons Co. filed a class action complaint, alleging that various
players in the mushroom industry colluded to inflate the price of
mushrooms by agreeing on minimum prices and by decommissioning
various mushroom farms in order to reduce mushroom supply.
That complaint was later consolidated with six similar class
actions, and a consolidated class action complaint was filed on
Nov. 13, 2007. The unified class action was also consolidated with
individual actions brought by Publix Super Markets and Giant Eagle,
Inc. In the years that followed, the Court adjudicated multiple
motions to dismiss, motions for summary judgment on the issue of
Capper-Volstead Immunity, motions to adjudicate the case under the
rule of reason, and Daubert motions. The parties also concluded a
lengthy discovery period.
Then, on Dec. 7, 2015, Winn-Dixie and Bi-Lo initiated the instant
action. Their complaint was similar in all meaningful respects to
the ones that preceded it, and their action was consolidated with
the others on April 12, 2017.
After the Court certified a class of direct purchasers on Nov. 22,
2016, Publix, Giant Eagle, Winn-Dixie and Bi-Lo all opted out of
the class litigation. On Feb. 22, 2019, the Court ruled that the
three opt-out actions would be tried separately from the class
action, and on July 11, 2019 the Court scheduled a trial on Publix
and Giant Eagle's claims to begin on March 2, 2020. The Plaintiffs
moved to try their case alongside Publix and Giant Eagle, arguing
that each Plaintiff has alleged antitrust claims involving the same
core group or sub-set of defendants arising from the same core and
common group of facts and legal issues.
The Court issued a Scheduling Order in the case following a Rule 16
conference on Sept. 4, 2019. The Order set the end of fact
discovery for Jan. 20, 2020, the disclosure of expert reports for
March 2, 2020, and the filing of motions for summary judgment for
June 8, 2020--deadlines that were later extended to June 18, July
2, and November 6, respectively.
On June 12, 2020, six days before the end of fact discovery, the
Plaintiffs filed their instant motion requesting leave to amend
their complaint. They seek to add allegations claiming that the
Defendants implemented a non-compete policy, and to extend the
alleged antitrust period by two years, such that it ended in 2010
rather than 2008. According to them, these new claims are based on
newly discovered evidence obtained on Dec. 11, 2019.
Certain Defendants and M.D Bascianai & Sons argue that the Court
should deny leave to amend because the Plaintiffs' proposed
amendments are futile, made in bad faith, prejudicial, and come
after an impermissibly long delay. Though the first three points
can be dispensed with quickly, Judge Schiller ultimately agrees
with Defendants fourth point and finds that leave must be denied
due to the Plaintiffs' delay in moving to amend.
First, the Defendants have not shown that the amendments are
futile. Second, the Defendants present no facts from which the
Court could conclude that the Plaintiffs' motion was made in bad
faith. Third, while both Certain Defendants and Basciani dedicate
a section in their briefs to "prejudice", the prejudice they
describe all stems from the timing of the Plaintiffs' decision to
amend. To that end, the Judge agrees with the Defendants that
leave should be denied because the Plaintiffs delayed amending
their complaint until the end of fact discovery, and the delay was
both prejudicial and undue.
First, the Plaintiffs clearly delayed moving to amend their
pleading. Second, their delay was undue, and granting leave now
would postpone the pending litigation in a manner prejudicial to
the Defendants.
The Plaintiffs have no reasonable excuse for waiting until the
close of discovery. The references to non-compete agreements in
the Publix and Giant Eagle litigation is significant, as the
Plaintiffs had previously represented to the Court that it was
substantially familiar with Publix and Giant Eagle's claims. The
Plaintiffs could not have made such an argument in good faith
without researching Publix and Giant Eagle's actual theories of
antirust liability, and thus they cannot now argue that they got
their first whiff of a possible non-compete agreement this spring.
The Plaintiffs delayed moving to amended until the close of
discovery in June. Such a delay is both prejudicial and undue, and
for that reason the Plaintiffs' motion for leave to amend their
complaint is denied, rules the Court.
For the foregoing reasons, the Plaintiffs may not amend their
complaint at this stage. An Order consistent with the Memorandum
will be docketed separately, Judge Schiller wrote in his July 15,
2020 Memorandum, a full-text copy of which is available at
https://is.gd/AVygRs from Leagle.com.
EDISON INT'L: Bellwether Jury Trial Set for January 2021
--------------------------------------------------------
Edison International said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 28, 2020 for the
quarterly period ended June 30, 2020, that the bellwether jury
trial on certain fire only matters has been scheduled for January
12, 2021, but may be delayed further due to the wide-spread
disruption being caused by the COVID-19 pandemic.
In December 2017, wind-driven wildfires impacted portions of
Southern California Edison Company's (SCE's) service territory,
causing loss of life, substantial damage to both residential and
business properties, and service outages for SCE customers. The
Ventura County Fire Department (VCFD) and the California Department
of Forestry and Fire Protection (CAL FIRE) have determined that the
largest of the 2017 fires originated on December 4, 2017, in the
Anlauf Canyon area of Ventura County (the investigating agencies
refer to this fire as the "Thomas Fire"), followed shortly
thereafter by the Koenigstein Fire. According to CAL FIRE, the
Thomas and Koenigstein Fires burned over 280,000 acres, destroyed
or damages an estimated 1,343 structures and resulted in two
fatalities.
As of July 23, 2020, SCE was aware of at least 323 lawsuits,
representing approximately 5,000 plaintiffs, related to the Thomas
and Koenigstein Fires naming SCE as a defendant. One hundred and
thirty-nine of the 323 lawsuits also name Edison International as a
defendant based on its ownership and alleged control of SCE.
At least four of the lawsuits were filed as purported class
actions. The lawsuits, which have been filed in the superior courts
of Ventura, Santa Barbara and Los Angeles Counties allege, among
other things, negligence, inverse condemnation, trespass, private
nuisance, and violations of the public utilities and health and
safety codes.
The lawsuits have been coordinated in the Los Angeles Superior
Court. Three categories of plaintiffs have filed lawsuits against
SCE and Edison International relating to the Thomas Fire,
Koenigstein Fire and Montecito Mudslides: individual plaintiffs,
subrogation plaintiffs and public entity plaintiffs. An initial
jury trial for a limited number of plaintiffs, sometimes referred
to as a bellwether jury trial, on certain fire only matters is
currently scheduled for January 12, 2021 but may be delayed further
due to the wide-spread disruption being caused by the COVID-19
pandemic.
In November 2019, SCE and Edison International reached a settlement
with certain local public entity plaintiffs in the Thomas Fire,
Koenigstein Fire and Montecito Mudslides litigation under which SCE
paid those local public entity plaintiffs parties an aggregate of
$150 million and, other than as set forth below, the plaintiffs
released SCE and Edison International from all claims and potential
claims in the Thomas Fire, Koenigstein Fire and Montecito Mudslides
litigation and/or related to or arising from the Thomas Fire,
Koenigstein Fire or Montecito Mudslides. Certain of the local
public entity plaintiffs will retain the right to pursue certain
indemnity claims against SCE and Edison International.
Edison International and SCE did not admit liability as part of the
settlement.
Edison International, through its subsidiaries, engages in the
generation, transmission, and distribution of electricity in the
United States. It generates electricity through hydroelectric,
diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic
sources. Edison International was founded in 1886 and is based in
Rosemead, California. Edison International, incorporated on April
20, 1987, is the holding company of Southern California Edison
Company (SCE).
EDISON INT'L: Continues to Defend Class Suits Over Woolsey Fire
---------------------------------------------------------------
Edison International said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 28, 2020 for the
quarterly period ended June 30, 2020 that the company continues to
defend two purported class action suits related to the Woolsey
Fire.
In November 2018, wind-driven wildfires impacted portions of
Southern California Edison Company 's (SCE's) service territory and
caused substantial damage to both residential and business
properties and service outages for SCE customers.
The largest of these fires, known as the Woolsey Fire, originated
in Ventura County and burned acreage located in both Ventura and
Los Angeles Counties.
According to the California Department of Forestry and Fire
Protection (CAL FIRE), the Woolsey Fire burned almost 100,000
acres, destroyed an estimated 1,643 structures, damaged an
estimated 364 structures and resulted in three fatalities. Two
additional fatalities have also been associated with the Woolsey
Fire.
As of July 23, 2020, SCE was aware of at least 247 lawsuits,
representing approximately 4,826 plaintiffs, related to the Woolsey
Fire naming SCE as a defendant. One hundred and sixty-seven of the
247 lawsuits also name Edison International as a defendant based on
its ownership and alleged control of SCE.
At least two of the lawsuits were filed as purported class actions.
The lawsuits, which have been filed in the superior courts of
Ventura and Los Angeles Counties allege, among other things,
negligence, inverse condemnation, personal injury, wrongful death,
trespass, private nuisance, and violations of the public utilities
and health and safety codes.
The Woolsey Fire lawsuits have been coordinated in the Los Angeles
Superior Court.
Three categories of plaintiffs have filed lawsuits against SCE and
Edison International relating to the Woolsey Fire: individual
plaintiffs, subrogation plaintiffs and public entity plaintiffs.
In November 2019, SCE and Edison International reached a settlement
with certain local public entity plaintiffs in the Woolsey Fire
litigation under which SCE paid the local public entity plaintiffs
an aggregate of $210 million and those local public entity
plaintiffs released SCE and Edison International from all claims
and potential claims in the Woolsey Fire litigation and/or related
to or arising from the Woolsey Fire.
Edison International and SCE did not admit liability as part of the
settlement.
No further updates were provided in the Company's SEC report.
Edison International, through its subsidiaries, engages in the
generation, transmission, and distribution of electricity in the
United States. It generates electricity through hydroelectric,
diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic
sources. Edison International was founded in 1886 and is based in
Rosemead, California. Edison International, incorporated on April
20, 1987, is the holding company of Southern California Edison
Company (SCE).
ELANCO ANIMAL: Hunter Securities Class Action Underway
------------------------------------------------------
Elanco Animal Health Incorporated said in its Form 10-Q Report
filed with the Securities and Exchange Commission on July 30, 2020,
for the quarterly period ended June 30, 2020, that the court in
Hunter v. Elanco Animal Health Inc., et al., is currently
considering lead plaintiff motions.
On May 20, 2020, a shareholder class action lawsuit captioned
Hunter v. Elanco Animal Health Inc., et al. was filed in the United
States District Court for the Southern District of Indiana (the
Court) against Elanco, Jeffrey Simmons and Todd Young.
The lawsuit alleges, in part, that Elanco and certain of its
executives made materially false and/or misleading statements
and/or failed to disclose certain facts about Elanco's supply
chain, inventory, revenue and projections.
The lawsuit seeks unspecified monetary damages and purports to
represent purchasers of Elanco securities between January 10, 2020
and May 6, 2020.
The Court is currently considering lead plaintiff motions.
Elanco said, "We believe the claims made in the case are meritless,
and we intend to vigorously defend our position. The process of
resolving these matters is inherently uncertain and may develop
over an extended period of time; therefore, at this time, the
ultimate resolution cannot be predicted."
Founded in 1954 as part of Eli Lilly and Company (Lilly), Elanco
Animal Health Incorporated is a premier animal health company that
innovates, develops, manufactures and markets products for
companion and food animals. Headquartered in Greenfield, Indiana,
the company is the fourth largest animal health company in the
world, with revenue of $3,071.0 million for the year ended December
31, 2019.
FEDEX GROUND: Remand of Perea to San Diego Superior Court Denied
----------------------------------------------------------------
Judge Dana M. Sabraw of the U.S. District Court for the Southern
District of California denied Plaintiff Perea's motion to remand
the case captioned NORA PEREA, individually and on behalf of all
others similarly situated, Plaintiff, v. FEDEX GROUND PACKAGE
SYSTEM, INC., a Delaware Corporation; and DOES 1 through 10,
inclusive, Defendants, Case No. 20-cv-00610-DMS-AHG (S.D. Cal.), to
the San Diego Superior Court.
Perea was formerly employed by Defendant Fedex as a non-exempt
warehouse package sorter and handler. She was a part-time
employee--she worked 3.5 to 4.0 hours shifts, 5 days a week. The
Plaintiff alleges that there would be 2 or 3 occasions per week
that she, and other similarly-situated and aggrieved employees,
would report to work, go through security, clock into work, and
work about 45 minutes, only to be sent home without receiving a
reporting time work shift premium at the requisite rate as required
by California law. The Plaintiff further alleges that Defendant,
at all relevant times, maintained a consistent policy and practice
of failing to provide accurate wage statements and failing to
timely compensate employees.
Based on these alleged facts, the Plaintiff brought suit, on behalf
of herself and others similarly situated, against the Defendant in
San Diego Superior Court. In her First Amended Complaint ("FAC"),
the Plaintiff asserts claims for (1) failure to pay report time
wages in violation of California Labor Code Section 218 and Section
5 of California's Industrial Welfare Commission ("IWC") Wage Order
9-2001; (2) failure to provide accurate itemized wage statements in
violation of California Labor Code Section 226 and Section 7 of IWC
Wage Order 9-2001; (3) failure to timely pay wages due upon
separation of employment in violation of California Labor Code
Sections 201, 202, and 203; (4) violation of California's Unfair
Competition Law ("UCL"); (5) civil penalties under California's
Private Attorney General Act ("PAGA") for failure to pay reporting
time wages; (6) civil penalties under PAGA for failure to provide
accurate itemized wage statements; (7) civil penalties under PAGA
for failure to timely pay wages upon termination of employment; and
(8) civil penalties under PAGA for violation of California's Labor
Code and IWC Wage Orders. Plaintiff seeks injunctive relief,
restitution, disgorgement, an award of unpaid wages, statutory
penalties, liquidated damages, attorney's fees and costs.
On March 30, 2020, the Defendant removed the case to the Court
pursuant to the Class Action Fairness Act ("CAFA"). It included
the Declarations of Ms. Andrea K. Cox and Mr. Alexander Chemers to
support a finding of removability. In response to the Notice of
Removal, th Plaintiff filed the present motion, arguing the
Defendant has failed to satisfy its burden of establishing the
class claims exceed the $5 million jurisdictional minimum under
CAFA.
There is no dispute the present action is a "class action" within
CAFA, as the action contains class allegations under California
Code of Civil Procedure Section 382. There is also no dispute that
the action involves more than 100 employees and that the minimal
diversity exists--the citizenship of at least one of the employees
is different from the Defendant's citizenship. The only issue,
therefore, is whether the Defendant has shown the amount in
controversy requirement is satisfied.
Having considered the allegations in the Plaintiff's Complaint, the
parties' briefing, and the Defendant's evidentiary submissions,
Judge Sabraw concludes the Defendant has satisfied its burden. It
has demonstrated by a preponderance of the evidence that the amount
in controversy exceeds CAFA's jurisdictional minimum of $5 million.
The Defendant concluded that the amount in controversy for the
Plaintiff's first two causes of action is $18,667,560. It then
considered the potential attorney's fees award under the California
Labor Code. The Defendant estimated the attorney's fees to be 25%
of the total $18,667,560, which is $4,666,890. Its ultimate
evaluation of the amount in controversy--accounting only for the
Plaintiff's first two causes of action and attorney's fees--was
$23,334,450. Consequently, the Defendant argues the Plaintiff's
case easily exceeds CAFA's $5 million jurisdictional minimum.
Accordingly, the Judge denied the Plaintiff's motion to remand.
A full-text copy of the Court's July 15, 2020 Order is available at
https://is.gd/2DbTTd from Leagle.com.
FIRSTENERGY CORP: Faces Owens Suit Over 45% Share Price Decline
---------------------------------------------------------------
DIANE OWENS, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, vs. FIRSTENERGY CORP., CHARLES E. JONES, JAMES
F. PEARSON, STEVEN E. STRAH and K. JON TAYLOR, Defendants, Case No.
2:20-cv-03785-ALM-KAJ (S.D. Ohio, July 28, 2020) is a securities
class action on behalf of all purchasers of FirstEnergy common
stock between February 21, 2017 and July 21, 2020, inclusive,
seeking to pursue remedies against FirstEnergy and certain of the
Company's current and former most senior executives under
Sections10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule l0b-5 promulgated thereunder.
According to the complaint, Defendants issued materially false and
misleading statements regarding FirstEnergy's internal controls,
business practices and prospects. Specifically, Defendants touted
FirstEnergy's legislative "solutions" to problems with its nuclear
facilities, but failed to disclose that these "solutions" centered
on an illicit campaign to corrupt high-profile state legislators in
order to secure legislation favoring the Company.
Over a nearly three-year period, FirstEnergy and its affiliates
funneled more than $60 million to prominent state politicians and
lobbyists, including Ohio Speaker Larry Householder, in order to
secure the passage of Ohio House Bill 6 ("HB6"), which provided a
$1.3 billion ratepayer-funded bailout to keep the Company's failing
nuclear facilities in operation. In addition, Defendants falsely
represented that they were complying with state and federal laws
and regulations regarding regulatory matters throughout the Class
Period, exposing the Company and its investors to the extreme
undisclosed risks of reputational, legal and financial harm.
FirstEnergy's unscrupulous tactics began to be revealed in dramatic
fashion on July 21, 2020, as federal agents announced the arrest of
Householder and four others persons, including a prominent
FirstEnergy lobbyist, in connection with a $60 million racketeering
and bribery scheme.
On this news, the price of FirstEnergy stock plummeted, trading as
low as $22.85 per share on July 22, 2020, down 45% from its closing
price of $41.26 per share on July 20, 2020, inflicting massive
losses on FirstEnergy shareholders. This lawsuit seeks recompense
for those losses, which resulted from Defendants' brazen violations
of the federal securities laws.
FirstEnergy Corp. is an Akron, Ohio-headquartered electric utility
company with subsidiaries and affiliates involved in the
distribution, transmission and generation of electricity, as well
as energy management and other energy-related services.[BN]
The Plaintiff is represented by:
Joseph F. Murray, Esq.
Brian K. Murphy, Esq.
MURRAY MURPHY MOUL + BASIL LLP
1114 Dublin Road
Columbus, OH 43215
Telephone: (614) 488-0400
Facsimile: (614) 488-0401
E-mail: murray@mmmb.com
murphy@mmmb.com
- and -
Samuel H. Rudman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
Facsimile: (631) 367-1173
E-mail: srudman@rgrdlaw.com
- and -
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
200 South Wacker Drive, 31st Floor
Chicago, IL 60606
Telephone: (312) 674-4674
Facsimile: (312) 674-4676
E-mail: bcochran@rgrdlaw.com
- and -
Guri Ademi, Esq.
ADEMI & O'REILLY, LLP
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: gademi@ademilaw.com
FIVE STAR: Faces Perrong Suit Over Automated Telemarketing Calls
----------------------------------------------------------------
ANDREW PERRONG, on behalf of himself and others similarly situated,
Plaintiff, v. FIVE STAR VENTILATION, INC. Defendant, Case No.
4:20-cv-40095-TSH (D. Mass., July 28, 2020) is a class action over
Defendant's campaign to market its services through the use of
automated telemarketing calls in plain violation of the Telephone
Consumer Protection Act, 47 U.S.C. Section 227 et seq. ("TCPA").
According to the complaint, Defendant sent multiple calls to
residential telephone numbers that are registered on the National
Do Not Call List, which is a separate and additional violation of
the TCPA. Defendant also did not have proper policies and
procedures in place to ensure that they engaged in telemarketing
that complied with federal law.
The recipients of Defendant's illegal calls, which include
Plaintiff and the proposed classes, are entitled to damages under
the TCPA, the lawsuit contends.
Five Star Ventilation, Inc. is a corporation that is registered to
do business in Massachusetts. Five Star Ventilation makes
telemarketing calls and solicits sales into this District.[BN]
The Plaintiff is represented by:
Anthony Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln Street, Suite 2400
Hingham, MA 02043
Telephone: (617) 485-0018
Facsimile: (508) 318-8100
E-mail: anthony@paronichlaw.com
FLAMINGO FURNITURE: Hernandez Sues Over Unpaid Minimum & OT Wages
-----------------------------------------------------------------
JUAN HERNANDEZ, individually and derivatively on behalf of all
others similarly situated, Plaintiff v. FLAMINGO FURNITURE CORP.,
ALBERT MITRANI, and JOHNATHAN MITRANI, Defendants, Case No.
1:20-cv-03397 (E.D.N.Y., July 28, 2020) is a class action against
the Defendants for alleged violations of the Fair Labor Standards
Act and the New York Labor Law.
The lawsuit claims the Defendants failed to provide the Plaintiff
and all others similarly situated employees with minimum wages and
overtime compensation for all hours worked in excess of 40 hours
per week; monitor and record their actual worked hours; and provide
them with the required wage statements and payroll notices.
The Plaintiff was employed by the Defendants as a warehouse
employee at their furniture store in New York from April 2006 until
March 16, 2020.
Flamingo Furniture Corp. is a discount furniture store with its
principal place of business located at 51-09 5th Avenue, Brooklyn,
New York. [BN]
The Plaintiff is represented by:
Katherine Morales, Esq.
KATZ MELINGER PLLC
280 Madison Avenue, Suite 600
New York, NY 10016
Telephone: (212)460-0047
Facsimile: (212)428-6811
E-mail: kymorales@katzmelinger.com
FOOD COURT BY BRAZILIAN: Tomita Sues Over Unsolicited Ads
---------------------------------------------------------
MARIANE TOMITA, individually and on behalf of all others similarly
situated, Plaintiff v. FOOD COURT BY BRAZILIAN DEPOT, INC. d/b/a
PIZZA EXPRESS, Defendant, Case No. CACE-20-011893 (Fla. 17th Jud.
Cir. Ct., July 23, 2020) is a class action complaint brought
against Defendant for its alleged violation of the Telephone
Consumer Protection Act.
According to the complaint, Plaintiff received unsolicited text
messages to his cellular telephone number from Defendant's number
754-704-5668 on June 27, 3030 and on July 3, 2020. Allegedly,
Defendant engages in unsolicited text messaging using an automatic
telephone dialing system (ATDS) to promote its business with no
regard for consumers' privacy rights.
Plaintiff asserts that he never provide Defendant with her express
written consent to be contacted using an ATDS.
Food Court by Brazilian Depot, Inc. sells and delivers prepared
foods to consumers. [BN]
The Plaintiff is represented by:
Jibrael S. Hindi, Esq.
Thomas J. Patti, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th St., Suite 1744
Fort Lauderdale, FL 33301
Tel: 954-907-1136
Fax: 855-529-9540
Emails: jibrael@jibraellaw.com
tom@jibraellaw.com
FORTERRA INC: Awaits Final Approval of Securities Case Settlement
-----------------------------------------------------------------
Forterra, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 28, 2020 for the
quarterly period ended June 30, 2020, that the parties in a
consolidated securities class action suit are awaiting final court
approval of a settlement.
Beginning on August 14, 2017, four plaintiffs filed putative class
action complaints in the United States District Court for the
Eastern District of New York against various defendants. On July
27, 2018, an order was entered consolidating the lawsuits into a
single action (the "Securities Action") and transferring the venue
of the case from the Eastern District of New York to the Northern
District of Texas. Pursuant to an agreed scheduling order,
plaintiffs in the Securities Action filed their Consolidated
Amended Complaint on November 30, 2018.
The Securities Action is brought by two plaintiffs individually and
on behalf of all persons that purchased or otherwise acquired the
Company's common stock issued pursuant to and/or traceable to the
initial public offering (IPO) and is brought against the Company,
certain of its current and former officers and directors, Lone Star
and certain of its affiliates, and certain banks that acted as
underwriters of the IPO (collectively, the "Securities
Defendants").
The Securities Action generally alleges that the Company's
registration statement on Form S-1 filed in connection with the IPO
(the "Registration Statement") contained false or misleading
statements and/or omissions of material facts.
Specifically, plaintiffs allege the Registration Statement (1) made
false and/or misleading statements about the Company's ability to
generate organic growth through cross-selling initiatives amongst
the Company's various businesses while failing to disclose that the
Company had not adequately integrated acquisitions, had not begun
rolling out its cross-selling initiative, and that its businesses
were submitting competing bids against one another, and (2) made
false or misleading statements regarding the existence of certain
accounting practices and alleged material weaknesses in the
Company's internal controls over financial reporting, including the
existence of and accounting for bill and hold transactions, the
lack of sufficient accounting personnel, the lack of effective
internal controls to ensure costs were properly and accurately
accrued, resulting in misstated costs and profits in the Company's
2016 financial statements, and the making of inventory accounting
entries without adequate substantiation or documentation.
The Securities Action asserts claims under Section 11 and Section
15 of the Securities Act of 1933, as amended, (the "Securities
Act") and seeks (1) class certification under the Federal Rules of
Civil Procedure, (2) damages suffered by plaintiffs and other class
members, (3) prejudgment and post-judgment interest, (4) reasonable
counsel fees and expert fees, and other costs and expenses
reasonably incurred, and (5) other relief the court deems
appropriate.
On February 15, 2019, the Securities Defendants filed a Motion to
Dismiss all claims in the case based on plaintiffs' failure to
state a claim. Briefing on the motion to dismiss was completed on
May 1, 2019, and the court has not yet ruled on the motion.
A mediation of the Securities Action occurred in August 2019. On
November 4, 2019, the parties to the Securities Action entered into
a settlement agreement that is intended to fully and finally
resolve all claims in the Securities Action.
On January 4, 2020, the court issued an order granting preliminary
approval for the settlement and providing for notice. Approval of
the settlement in the Securities Action is set for final hearing on
July 28, 2020, but approval cannot be guaranteed.
The terms of the settlement are expected to be paid by the
Company's insurance.
Forterra, Inc. manufactures and sells pipe and precast products the
United States, Canada, and Mexico. It operates through Drainage
Pipe & Products; and Water Pipe & Products segments. Forterra, Inc.
was founded in 2016 and is headquartered in Irving, Texas.
HAVE A HEART: Levitt Sues Over Unsolicited Text Messages
--------------------------------------------------------
ANNE LEVITT, individually and on behalf of all others similarly
situated, Plaintiff v. HAVE A HEART COMPASSION CARE, INC. d/b/a A
CANNABIS STOREY, Defendant, Case No. 2:20-cv-01154 (W.D. Wash.,
July 28, 2020) is a class action against the Defendant for
violation of the Telephone Consumer Protection Act.
The Plaintiff, on behalf of herself and all others similarly
situated consumers, alleges that the Defendant sent text messages
on her cellular telephone number by using an automatic telephone
dialing system without prior express written consent. The text
message that she received from the Defendant consisted of
pre-written templates of impersonal text and was identical to text
messages Defendant sent to other consumers. The Plaintiff found
these telephonic communications excessive, inconvenient, harassing,
and placed in complete disregard of her privacy.
Have a Heart Compassion Care, Inc., d/b/a A Cannabis Storey, is a
company that owns and operates medical and recreational
dispensaries, with its principal place of business in Seattle,
Washington. [BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
5608 17th Ave. NW, No. 891
Seattle, WA 98107
Telephone: (800) 778-2065
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
HAYT & HAYT: Approval of Barenbaum Class Action Settlement Sought
-----------------------------------------------------------------
In class action lawsuit captioned as DANIEL BARENBAUM, individually
and on behalf of all others similarly situated, v.
HAYT, HAYT & LANDAU, LLC, Case No. 2:18-cv-04120-BMS (E.D. Pa.),
the Parties ask the Court for an order granting preliminary
approval of their Class Settlement Agreement on behalf of the
following class:
"all consumers residing in the Commonwealth of Pennsylvania who
received a 'Notice of Deposition in Aid of Execution' from the
Defendant on an obligation owed or allegedly owed to Midland
Funding, LLC, during the time period of September 25, 2017 to
September 24, 2018, and who thereafter appeared as directed at the
date, time and location noticed for the Deposition."
Hayt, Hayt & Landau, P.L. has been practicing law in the state of
Florida for over 25 years specializing in the area of
collections.[CC]
The Plaintiff is represented by:
Ari H. Marcus, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Telephone: (732) 695-3282
Facsimile: (732) 298-6256
E-mail: Ari@MarcusZelman.com
The Defendant is represented by:
Shannon Miller, Esq.
MAURICE WUTSCHER LLP
10 West Front Street
Media, PA 19063
Telephone: (215) 789-7157
E-mail: smiller@mauricewutscher.com
HEARST COMMUNICATIONS: Underpays Dealers, Sanchez et al. Say
------------------------------------------------------------
YOLANDA SANCHEZ, PABLO SANCHEZ, MONICA TEJADA, individually and on
behalf of all others similarly situated, Plaintiff, vs. HEARST
COMMUNICATIONS, INC., and DOES 1–10, inclusive, Defendants, Case
No. 3:20-cv-05147 (N.D. Cal., July 27, 2020) alleges that Defendant
violated California law by maintaining policies and practices that
systematically fail to provide Plaintiffs and all others similarly
situated with the protections of California's Labor Code.
Defendant has violated numerous provisions of the California Labor
Code due to its policies and practices, including but not limited
to, failing to compensate Class Members for all hours worked,
failing to compensate piece rate employees for rest and recovery
periods and other nonproductive time, failure to provide Class
Members with meal periods and rest periods, failure to provide
Class Members with minimum and overtime wages, failing to maintain
accurate and complete employment records, failure to provide Class
Members with accurate, itemized wage statements, failure to
reimburse Class Members for business expenses, and failure to
timely pay all wage earned. Plaintiff also alleges that these acts,
which violate the California Labor Code, constitute unlawful and
unfair business practices in violation of the California Unfair
Competition Laws.
Plaintiff Yolanda Sanchez was employed by Hearst as a newspaper
dealer in and around Burlingame, Hillsborough, and San Mateo,
California, from 2012 until October 21, 2018.
Plaintiff Pablo Sanchez was employed by Hearst as a newspaper
dealer in and around San Mateo, California from the end of August
2009 to September 2019.
Plaintiff Monica Tejada was employed by Hearst as a newspaper
carrier from around 2015 to 2017 in and around Cupertino,
California.
Hearst Communications Inc. is a media company distributing online
and print media throughout the United States, including in the San
Francisco Bay Area in California.[BN]
The Plaintiff is represented by:
Robert Ottinger, Esq.
THE OTTINGER FIRM, P.C.
535 Mission Street
San Francisco, CA 94133
Telephone: (415) 262-0096
Facsimile: (212) 571-0505
E-mail: robert@ottingerlaw.com
HOME DEPOT: Court Denies Hankey's Bid Compel Document Production
----------------------------------------------------------------
In the case captioned RICHARD HANKEY, individually and on behalf of
all other similarly situated v. THE HOME DEPOT USA, INC., a
Delaware Corporation, and DOES 1 through 50, inclusive, Case No.
2:19-cv-0413-JAM-CKD (E.D. Cal.), the U.S. District Court for the
Eastern District of California issued an order:
(1) denying without prejudice the Plaintiff's motion to compel
the production of documents; and
(2) granting in part and denying in part the Plaintiff's
motion to compel deposition testimony from a corporate
representative under Rule 30(b)(6) of the Federal Rules of
Civil Procedure.
On October 19, 2018, Richard Hankey filed a wage and hour class
action against Home Depot in the Superior Court of California,
County of Orange, asserting four causes of action, including
failure to pay wages and overtime under California Labor Code. The
Defendant removed the action to the U.S. District Court for the
Central District of California. The parties agreed to transfer the
case to the U.S. District Court for the Eastern District of
California because it was related to an action pending here.
Currently the parties are at an impasse regarding two discovery
matters: (1) whether the Defendant is required to produce the wage
statements issued to class members within the past four years; and
(2) whether certain topics identified in the Plaintiff's Rule
30(b)(6) deposition notice to the Defendant are proper.
In the motion to compel documents, the Plaintiff asks the Court to
order the Defendant to produce all wage statements issued to class
members within the past four years. The Defendant objects to this
request, arguing that the wage statements are irrelevant and that
their production would be unduly burdensome.
Magistrate Judge Carolyn K. Delaney notes that the Plaintiff does
not attempt to explain why the benefit of the wage statements
justifies the burden and expense of production. Most importantly,
the Plaintiff does not articulate how the wage statements would
assist in establishing commonality, typicality, or adequacy under
Rule 23. At this stage of the litigation, the Plaintiff's request
for class-wide wage statements appears disproportional to the
current needs of the case, given the burden and expense of
production, Judge Delaney opines. Thus, the Plaintiff's motion to
compel class-wide wage statements is denied without prejudice. The
Plaintiff may renew the request for wage statements in the event
this action is certified under Rule 23.
Judge Delaney also rules that the Plaintiff's motion to compel
deposition testimony is granted in part and denied in part, as
follows:
a. Plaintiff's request for an order compelling testimony
concerning topic 3 (Manager training for supervising
employees) is DENIED;
b. Plaintiff's request for an order compelling testimony
concerning topic 4 (Job duties performed by the employees)
is DENIED without prejudice. Plaintiff may renew the
request to compel testimony as to topic 4 if this action is
certified as a class action;
c. Plaintiff's request for an order compelling testimony
concerning topic 8 (Policies and practices re: wage
statements) is DENIED;
d. Plaintiff's request for an order compelling testimony
concerning topic 11 (Plaintiff's duties, hours worked, and
compensation) is GRANTED; and
e. Plaintiff's request for an order compelling testimony
concerning topic 12 (Defendant's record keeping policies)
is DENIED.
A full-text copy of the District Court's June 8, 2020 Order is
available at https://tinyurl.com/yyerykhw from Leagle.com.
IMMUNOMEDICS INC: Loses Bid to Toss Tsai's Claims in Fergus Suit
----------------------------------------------------------------
The U.S. District Court for the District of New Jersey issued an
Opinion denying the Defendants' Motion to Dismiss in the case
captioned JESSICA FERGUS, individually and on behalf of all others
similarly situated v. IMMUNOMEDICS, INC., CYNTHIA L. SULLIVAN,
PETER P. PFREUNDSCHUH AND DAVID GOLDBERG, Case No. 16-cv-3335 (KSH)
(CLW) (D.N.J.).
The Defendants have moved to dismiss the second amended
consolidated complaint of Plaintiff Sensung Tsai in this putative
class action brought under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder.
Mr. Tsai alleged in the consolidated complaint that Immunomedics, a
biopharmaceutical company, and three of its now-former executives
made false and misleading statements, about their anticipated
participation in a 2016 industry conference in an effort to
increase the Company's stock price, locate a licensing partner, and
reap the resulting profit. He asserted that the Defendants' conduct
violated Sections 10(b) and 20(a) of the Exchange Act, as well as
Rule 10b-5.
Mr. Tsai's now-operative second amended complaint followed the
Court's March 31, 2019 opinion and order dismissing the
consolidated complaint. In brief, Mr. Tsai alleged in the
consolidated complaint that Immunomedics, a biopharmaceutical
company, and three of its now-former executives made false and
misleading statements between April 19, 2016, and May 19, 2016,
about their anticipated participation in a 2016 industry conference
in an effort to increase the company's stock price, locate a
licensing partner, and reap the resulting profit. The Defendants
moved to dismiss the consolidated complaint. In its March 31, 2019
opinion, the Court concluded that the consolidated complaint failed
to adequately plead material misrepresentations or omissions or the
existence of scienter, both of which are required elements of Mr.
Tsai's Section 10(b) and Rule 10b-5 claim. Because that claim
failed, the Section 20(a) claim also required dismissal. The Court
granted Tsai 30 days to file an amended complaint, and granted an
additional 30-day extension upon his counsel's request.
The second amended complaint was filed on May 30, 2019, and a
"corrected" version was filed on June 3, 2019. Mr. Tsai continues
to allege that defendants made materially false statements and
omissions concerning Immunomedics' anticipated presentation of
updated data on a key cancer drug candidate (called sacituzumab
govitecan, or IMMU-132) at the 2016 ASCO conferences, but limits
his challenge to statements made after defendants' presentation at
a Boston industry conference in April 2016, and to the aspects of
the statements that concerned the presentation of results
pertaining to IMMU-132's use for triple-negative breast cancer
(TNBC). He alleges, more specifically, that on May 2, 4, 5, and 19,
2016, the Defendants made statements touting their then-upcoming
presentation of updated TNBC results at the ASCO conference on June
3, 2016, and the Best of ASCO conference on June 24-25, 2016. But,
he alleges, the Defendants presented the same TNBC data at an
industry conference in Boston on April 29, 2016; no new information
would be presented at the ASCO programs and the company risked
exclusion due to ASCO's confidentiality and non-disclosure
requirements. The Defendants knew this, he continues, and concealed
or failed to disclose it, and the statements the company made
throughout May 2016 were false and misleading.
Ultimately, ASCO cancelled the June 3 TNBC presentation because its
confidentiality policy had been violated. The Defendants issued a
press release on June 3, 2016, acknowledging the cancellation, but
contended ASCO was wrong and that Sullivan and the presenter, Dr.
Bardia, were trying to reverse the decision because they believed
the results were different than what the company reported in April.
According to Mr. Tsai, these statements were also false and
misleading because the data was not different, Dr. Bardia did not
know about the prior presentation, and the press release implied
there was still a basis for the company to present at the Best of
ASCO program on June 24, 2016.
After that statement--but before the Best of ASCO
program--Defendants Goldenberg and Sullivan sold a large number of
shares in the company, only the second sales they made since
acquiring the shares in 2009, and the sale was made at a time when
their statements would be expected to have maximum effect on the
share price. On June 25, 2016, the Best of ASCO program concluded,
with no presentation by the Defendants and no explanation from
them. The complaint asserts that the Defendants' statements
resulted in an artificially inflated share price that dropped once
the truth--that there was no new data--was revealed, harming
investors.
The Defendants have moved to dismiss, arguing that the amendments
in the complaint fail to correct the deficiencies in the prior
complaint. Mr. Tsai counters that the second amended complaint now
"hones in on and establishes" the Defendants' purported fraud. The
Defendants continue to maintain that Mr. Tsai's claim under Section
10(b) and Rule 10b-5 fails to adequately allege a material
misrepresentation or omission and scienter.
However, the Court says, the second amended complaint has addressed
the prior deficiencies in the pleading of these requirements.
Relying primarily on the Court's opinion dismissing the earlier
version of the complaint, the Defendants also contend that their
May 2016 statements were not false or misleading because defendants
also revealed the Boston presentation; essentially, they argue that
the information was already out there for investors to digest.
Given the fact-intensive nature of the issue in the matter, the
Court declines to dismiss the second amended complaint on this
basis.
While a close issue, the Court also declines to dismiss the claim
insofar as it relies on the June 3 press release, which quoted
Sullivan as stating that she and Dr. Bardia were attempting to
reverse ASCO's decision because "we believe the patient population
and results reported in April were different from those" in the
abstract submitted to ASCO. Although qualified by the "belief"
language, the statement implies that Sullivan and Dr. Bardia had
looked into the issue and had a factual basis for an argument that
the data were different. The complaint alleges that Dr. Bardia had
done no such thing and had no such belief and facts supporting the
proposition that the data presented in Boston mirrored what the
Defendants intended to present at the ASCO conferences.
A full-text copy of the District Court's June 1, 2020 Opinion is
available at https://tinyurl.com/yc3unbsl from Leagle.com
INDEGENE INC: Progressive Health Sues Over Unsolicited Fax Ads
--------------------------------------------------------------
Progressive Health ad Rehab Corp., an Ohio corporation,
individually and as the representative of a class of similarly
situated persons v. INDEGENE, INC., a Delaware corporation,
INDEGENE ENCIMA, INC., INDEGENE WINCERE, INCORPORATED, and INDEGENE
HEALTHCARE, LLC, Case No. 3:20-cv-10106 (D.N.J., Aug. 6, 2020),
challenges the Defendants' practice of sending unsolicited
advertisements via facsimile, in violation of the federal Telephone
Consumer Protection Act of 1991, as amended by the Junk Fax
Prevention Act of 2005.
The Defendants' unsolicited fax has damaged the Plaintiff and the
class in that a junk fax recipient loses the use of its fax
machine, paper, and ink toner, according to the complaint. An
unsolicited fax wastes the recipient's valuable time that would
have been spent on something else. A junk fax intrudes into the
recipient's seclusion and violates the recipient's right to
privacy.
Plaintiff Progressive Health ad Rehab Corp. is an Ohio
corporation.
The Defendants are privately held for profit healthcare solutions
companies.[BN]
The Plaintiff is represented by:
Michael J. Canning, Esq.
Matthew N. Fiorovanti, Esq.
GIORDANO, HELLERAN & CIESLA
125 Half Mile Road, Suite 300
Red Bank, NJ 07701-6777
Phone: 732-741-3900
Fax: 732-224-6599
Email: mcanning@ghclaw.com
mfiorovanti@ghclaw.com
- and -
Ryan M. Kelly, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Phone: 847-368-1500
Email: rkelly@andersonwanca.com
INTEL CORP: Huang Sues Over Misleading Report, Stock Price Drop
----------------------------------------------------------------
The case, CHERYL HUANG, individually and on behalf of all others
similarly situated v. INTEL CORPORATION, ROBERT H. SWAN, and GEORGE
S. DAVIS, Defendants, Case No. 3:20-cv-05194 (N.D. Cal., July 28,
2020), arises from the Defendants' alleged violations of Section
10(b) and Section 20(a) of the Securities Exchange Act of 1934.
According to the complaint, the Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about the company's business, operations,
and prospects between April 23, 2020 and July 23, 2020. The
Plaintiff and all others similarly situated investors relied on the
statements released by the Defendants when they purchased or
otherwise acquired Intel securities during that period.
The material facts that the Defendants failed to disclose to
investors include: (1) that Intel had identified a defect mode in
its 7-nanometer process that resulted in yield degradation; (2)
that, as a result, the company would experience a six-month delay
in its production schedule for 7-nanometer products; (3) that Intel
was reasonably likely to rely on third-party foundries for
manufacturing its 7-nanometer products; (4) that, as a result of
the foregoing, Intel was reasonably likely to lose market share to
its competitors who are already selling 7-nanometer products; and
(5) that, as a result of the foregoing, the Defendants' positive
statements about the company's business, operations, and prospects
were materially misleading and/or lacked a reasonable basis.
The company's share price fell $9.81, or approximately 16%, to
close at $50.59 per share on July 24, 2020 following the disclosure
of the company's production delays for its 7-nanometer products. As
a result of the Defendants' wrongful acts and omissions, and the
precipitous decline in the market value of the company's
securities, the Plaintiff and other Class members have suffered
significant losses and damages.
Intel Corporation is a technology company that provides computing,
networking, data storage, and communication solutions worldwide,
with its principal executive offices located in Santa Clara,
California. [BN]
The Plaintiff is represented by:
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
Pavithra Rajesh, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: info@glancylaw.com
- and –
Frank R. Cruz, Esq.
THE LAW OFFICES OF FRANK R. CRUZ
1999 Avenue of the Stars, Suite 1100
Los Angeles, CA 90067
Telephone: (310) 914-5007
ITRON INC: Fails to Pay OT Wages Under FLSA and PMWA, Tomko Says
----------------------------------------------------------------
Shawn Tomko, on behalf of himself and similarly situated employees
v. ITRON, INC., Case No. 2:20-cv-01170-RJC (W.D. Pa., Aug. 6,
2020), arises from the Defendant's policy of misclassifying the
Plaintiff, not maintaining accurate time records and failing to pay
overtime wages due in overtime workweeks in violation of the Fair
Labor Standards Act of 1938, and the Pennsylvania Minimum Wage Act
According to the complaint, the Plaintiff regularly worked more
than 50 hours in workweeks during his employment but he was not
paid overtime pay. Rather, the Defendant classified the Plaintiff
as exempt from overtime under the FLSA and the PMWA. The Defendant
classified the Plaintiff as exempt as a matter of common policy
based upon the Plaintiff's title and salary. There have also been
times when the Plaintiff had to work in excess of 60 hours in
workweeks in order to complete his assigned work. The Defendant has
not paid overtime compensation--at 1.5x his regular rate or any
other premium rate--to the Plaintiff for any of the worktime in
excess of 40 hours in any workweek.
The Plaintiff was employed by the Defendant with the title of
Implementation Manager for most of that time, from July 2017 until
July 10, 2020.
Itron, Inc., is an American technology company that offers products
and services related to the delivery of infrastructure services,
such as energy and water.[BN]
The Plaintiff is represented by:
Joseph H. Chivers, Esq.
THE EMPLOYMENT RIGHTS GROUP, LLC
100 First Avenue, Suite 650
Pittsburgh, PA 15222-1514
Phone: (412) 227-0763
Fax: (412) 774-1994
Email: jchivers@employmentrightsgroup.com
JANON ELECTRIC: Pavon et al. Seek Overtime Pay for Electricians
---------------------------------------------------------------
TITO ALBERTO PAVON and RODNEY CASTILLO, on behalf of themselves and
other similarly situated individuals, Civ. Action No. Plaintiffs,
v. JANON ELECTRIC CORP., MICHAEL’S ELECTRICAL CONTRACTING INC.,
MICHAEL POSAS, and IRENE POSAS, Defendants, Case No. 1:20-cv-05899
(S.D.N.Y., July 29, 2020) is an action brought by the Plaintiffs,
on behalf of themselves and other similarly situated, current and
former non-supervisory employees who worked at Defendants and who
elect to opt into this action pursuant to the Fair Labor Standards
Act (FLSA), 29 U.S.C. Section 216 (b). The lawsuit contends the
Plaintiffs and the Class are entitled to unpaid overtime wages from
Defendants for their work, as well as liquidated damages pursuant
to the FLSA.
Plaintiffs also allege they are entitled to unpaid overtime wages
from Defendants for their work and unpaid back "spread of hour
wages from Defendants for those days in which they worked in excess
of 10 hours and liquidated damages under New York State Labor Law.
Plaintiff Pavon was employed as an electrician for Janon and
Michael's, and their predecessors, from July 2004 to February 2020.
Plaintiff Castillo was employed as an electrician for Michael's and
its predecessor from September 2008 to 2010 and then again from
2012 until July 2018. As electricians, Plaintiffs were not subject
to an exemption from the federal and New York laws requiring
employers to pay employees time and a half wages for all hours that
exceeded 40 hours in a week.
Janon Electric Corp. is a New York electrical company with its
principal place of business in East Elmhurst, New York.
Michael's Electrical Contracting Inc. is a New York electrical
company with its principal place of business in East Elmhurst, New
York.[BN]
The Plaintiffs are represented by:
Jason L. Solotaroff, Esq.
Amy Robinson, Esq.
GISKAN SOLOTAROFF & ANDERSON LLP
90 Broad Street, 10th Floor
New York NY 10004 (212) 847-8315
JOHNSON & JOHNSON: Continues to Defend ERISA-Related Class Suits
----------------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 24, 2020 for the
quarterly period ended June 28, 2020 that the company continues to
defend against class action suits related to alleged violations of
the Employee Retirement Income Security Act of 1974 (ERISA).
In January 2019, two Employee Retirement Income Security Act of
1974 (ERISA) class action lawsuits were filed by participants in
the Johnson & Johnson Savings Plan against Johnson & Johnson, its
Pension and Benefits Committee, and certain named officers in the
United States District Court for the District of New Jersey,
alleging that the defendants breached their fiduciary duties by
offering Johnson & Johnson stock as a Johnson & Johnson Savings
Plan investment option when it was imprudent to do so because of
failures to disclose alleged asbestos contamination in body powders
containing talc, primarily JOHNSON'S(R) Baby Powder.
Plaintiffs are seeking damages and injunctive relief.
In September 2019, Defendants filed a motion to dismiss. In April
2020, the Court granted Defendants' motion but granted leave to
amend.
On June 15, 2020, Plaintiffs filed an amended complaint.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
JOHNSON & JOHNSON: Continues to Defend INVOKANA(R) Suits
--------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 24, 2020 for the
quarterly period ended June 28, 2020, that the company continues to
defend class action suits related to sales of INVOKANA(R)
medication.
Claims for personal injury have been made against a number of
Johnson & Johnson companies, including Janssen Pharmaceuticals,
Inc. and Johnson & Johnson, arising out of the use of INVOKANA(R),
a prescription medication indicated to improve glycemic control in
adults with Type 2 diabetes.
Lawsuits filed in federal courts in the United States have been
organized as a multi-district litigation in the United States
District Court for the District of New Jersey.
Cases have also been filed in state courts.
Class action lawsuits have been filed in Canada.
Product liability lawsuits continue to be filed, and the Company
continues to receive information with respect to potential costs
and the anticipated number of cases.
The Company has settled or otherwise resolved many of the cases and
claims in the United States and the costs associated with these
settlements are reflected in the Company's accruals.
No further updates were provided in the Company's SEC report.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
JOHNSON & JOHNSON: Discovery Ongoing in Talc Contamination Suit
---------------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 24, 2020 for the
quarterly period ended June 28, 2020, that discovery is ongoing in
the securities class action against the company in the United
States District Court for the District of New Jersey, alleging that
Johnson & Johnson violated the federal securities laws by failing
to disclose alleged asbestos contamination in body powders
containing talc, primarily JOHNSON'S(R) Baby Powder.
In February 2018, a securities class action lawsuit was filed
against Johnson & Johnson and certain named officers in the United
States District Court for the District of New Jersey, alleging that
Johnson & Johnson violated the federal securities laws by failing
to disclose alleged asbestos contamination in body powders
containing talc, primarily JOHNSON'S(R) Baby Powder, and that
purchasers of Johnson & Johnson's shares suffered losses as a
result.
Plaintiffs are seeking damages.
In April 2019, the Company moved to dismiss the complaint and
briefing on the motion was complete as of August 2019. In December
2019, the Court denied, in part, the motion to dismiss.
In March 2020, Defendants answered the complaint.
Discovery is underway.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
JOHNSON & JOHNSON: Suits Over Ethicon Pelvic Mesh Devices Ongoing
-----------------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 24, 2020 for the
quarterly period ended June 28, 2020 that the company has
established accruals with respect to product liability litigation
associated with Ethicon's pelvic mesh products.
Claims for personal injury have been made against Ethicon, Inc.
(Ethicon) and Johnson & Johnson arising out of Ethicon's pelvic
mesh devices used to treat stress urinary incontinence and pelvic
organ prolapse.
The Company continues to receive information with respect to
potential costs and additional cases.
Cases filed in federal courts in the United States had been
organized as a multi-district litigation (MDL) in the United States
District Court for the Southern District of West Virginia. The MDL
Court is remanding cases for trial to the jurisdictions where the
case was originally filed and additional pelvic mesh lawsuits have
been filed, and remain, outside of the MDL.
The Company has settled or otherwise resolved a majority of the
United States cases and the estimated costs associated with these
settlements and the remaining cases are reflected in the Company's
accruals.
In addition, class actions and individual personal injury cases or
claims have been commenced in various countries outside of the
United States, including claims and cases in the United Kingdom,
the Netherlands, and class actions in Israel, Australia and Canada,
seeking damages for alleged injury resulting from Ethicon's pelvic
mesh devices.
In November 2019, the Federal Court of Australia issued a judgment
regarding its findings with respect to liability in relation to the
three Lead Applicants and generally in relation to the design,
manufacture, pre and post-market assessments and testing, and
supply and promotion of the devices in Australia used to treat
stress urinary incontinence and pelvic organ prolapse.
In March 2020, the Court entered damages awards to the three Lead
Applicants.
With respect to other group members, there will be an individual
case assessment process which will require proof of use and
causally related loss. The class actions in Canada are expected to
be discontinued in 2020 as a result of a settlement of a group of
cases.
The Company has established accruals with respect to product
liability litigation associated with Ethicon's pelvic mesh
products.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
KHRG EMPLOYER: Fails to Timely Pay Separation Wages, Munoz Alleges
------------------------------------------------------------------
JESUS MUNOZ, individually and on behalf of all others similarly
situated, Plaintiff v. KHRG EMPLOYER, LLC and DOES 1 to 100,
Defendants, Case No. 37-2020-00026524-CU-OE-CTL (Cal. Super., San
Diego Cty., July 29, 2020) is a class action against the Defendants
for their failure to timely compensate the Plaintiff and all others
similarly situated non-exempt employees all wages owed to them upon
separation in violation of the Labor Code and the California
Business and Professions Code.
The Plaintiff was employed by the Defendants as a non-exempt
employee in San Diego County, California from 2016 until the
termination of his employment following the outbreak of COVID-19 in
2020.
KHRG Employer, LLC is a startup company that was incorporated in
Delaware and operating within the State of California. [BN]
The Plaintiff is represented by:
Daniel Ginzburg, Esq.
Manny M. Starr, Esq.
FRONTIER LAW CENTER
23901 Calabasas Road, Suite 2074
Calabasas, CA 91302
Telephone: (818) 914-3433
Facsimile: (818) 914-3433
E-mail: dan@frontierlawcenter.com
manny@frontierlawcenter.com
KROGER CO: Lorentzen Calls Ground Coffee Label "Deceptive"
----------------------------------------------------------
AMY LORENTZEN, individually and on behalf of all others similarly
situated, Plaintiff v. THE KROGER CO. and DOES 1 – 10,
Defendants, Case No. 2:20-cv-06754 (C.D. Cal., July 28, 2020) is a
class action against the Defendants for violations of the Consumer
Legal Remedies Act, the False and Misleading Advertising Law, and
the Unfair Competition Law.
The Plaintiff, on behalf of herself and all others similarly
situated consumers, alleges that the Defendants are engaged in
false and deceptive advertising and labeling of the Kroger ground
coffee products. The Defendants uniformly and systematically
represent the products to contain enough coffee to make the
specified number of servings on the front panel. However, if the
back-panel brewing instructions are followed, the canister produces
significantly less than what is advertised on the front panel.
Had the Plaintiff known the truth that the products do not contain
enough coffee to make the serving yield as advertised, she would
have paid less for them, or would not have purchased them at all.
As a result, the Plaintiff has been deceived and has suffered
economic injury.
The Kroger Co. is a retail company with its principle place of
business in Cincinnati, Ohio. [BN]
The Plaintiff is represented by:
Gillian L. Wade, Esq.
Sara D. Avila, Esq.
Marc A. Castaneda, Esq.
MILSTEIN JACKSON FAIRCHILD & WADE, LLP
10250 Constellation Blvd., Suite 1400
Los Angeles, CA 90067
Telephone: (310) 396-9600
Facsimile: (310) 396-9635
E-mail: gwade@mjfwlaw.com
savila@mjfwlaw.com
mcastaneda@mjfwlaw.com
KROGER COMPANY: Vitort Sues Over Unlawful Labeling of Just Fruit
----------------------------------------------------------------
Sarah Vitort, individually and on behalf of all others situated v.
THE KROGER COMPANY, an Ohio corporation, FRED MEYER STORES, INC.,
an Ohio corporation, and DOES 1 through 100, inclusive, Case No.
3:20-cv-01317-AC (D. Ore., Aug. 6, 2020), is brought to redress the
unlawful and deceptive practices employed by Defendants in
connection with its labeling, marketing and sale of a
Kroger-branded food item named "Just Fruit."
The Plaintiff, who purchased the Product in Portland, Oregon, also
seeks redress for the Defendants' reckless, knowing, and/or willful
violations of Oregon's Unlawful Trade Practices Act, and Breach of
the Implied Warranty of Merchantability.
This consumer class action addresses a troubling trend--the harmful
means used by some companies to exploit the ever growing consumer
demand for minimally processed foods that avoid unhealthy added
sugars. The Defendants label, market, and/or sell a Kroger-branded
food item named "Just Fruit" (hereafter, the "Product), which the
front label further describes as "spreadable fruit."
Through its labeling, on the front of every jar, the Defendants
uniformly represent that the Product contains only the fruit
identified (in this example, blackberries), the Plaintiff contends.
However, the Plaintiff alleges, the ingredients list on the back
label reveals that the Product is made primarily with "fruit
syrup," and contains other sweeteners, added sugars, and additives
such as "pectin," "calcium citrate," "apple juice concentrate," and
"citric acid." Fruit syrup, not blackberries, is the first listed
ingredient.
Reasonable consumers, like the Plaintiff, have suffered an
ascertainable loss of money, measured by the difference between the
price paid for a product made of "Just Fruit" and the lower market
value of a product that is made primarily of sugary fruit syrup. As
a result of the Defendant's illegal conduct, the purchase price of
the Product was greater than its objective market value, says the
complaint.
THE KROGER COMPANY is the owner and/or operator of various grocery
stores, and is the parent company of Defendant Fred Meyer Stores,
Inc.[BN]
The Plaintiff is represented by:
Joe Piucci, Esq.
Stephen Piucci, Esq.
PIUCCI LAW, LLC
900 SW 13th, Suite 200
Portland, OR 97205-1707
Phone: ((503) 228-7385
Fax: (503) 228-2571
Email: joe@piucci.com
steve@piucci.com
- and -
Gillian L. Wade, Esq.
Sara D. Avila, Esq.
Marc A. Castaneda, Esq.
MILSTEIN JACKSON FAIRCHILD & WADE, LLP
10250 Constellation Blvd., Suite 1400
Los Angeles, CA 90067
Phone: (310) 396-9600
Fax: (310) 396-9635
Email: gwade@mjfwlaw.com
savila@mjfwlaw.com
mcastaneda@mjfwlaw.com
- and -
M. Ryan Casey, Esq.
CASEY LAW FIRM, LLC
PO Box 4577
Frisco, CO 80443
Phone: (970) 372-6509
Fax: (970) 372-6482
Email: ryan@rcaseylaw.com
MATTRESS WAREHOUSE: Loses Bid to Nix Johnson's FLSA & PMWA Claims
-----------------------------------------------------------------
The U.S. District Court for the Eastern District of Pennsylvania
issued a Memorandum denying the Defendant's Motion to Dismiss the
Plaintiff's claims in the case captioned DIANE JOHNSON, ON BEHALF
OF HERSELF AND OTHERS SIMILARLY SITUATED v. MATTRESS WAREHOUSE,
INC., Case No. 20-891 (E.D. Pa.).
Diane Johnson, on behalf of herself and others similarly situated,
alleges that Mattress Warehouse, Inc., has not paid her or other
similarly situated employees required overtime in violation of the
Fair Labor Standards Act (FLSA) and the Pennsylvania Minimum Wage
Act (PMWA).
Mattress Warehouse argues Johnson is not entitled to overtime pay
under the FLSA or the PMWA. These provisions provide exemptions
from the FLSA and PMWA overtime mandate for retail employees.
Specifically, FLSA Section 7(i) states that no employer shall be
deemed to have violated the overtime mandate, by employing any
employee of a retail establishment for a workweek in excess of the
applicable workweek specified therein, if (1) the regular rate of
pay of such employee is in excess of one and one-half times the
minimum hourly rate applicable to him under section 206 of this
title and (2) more than half his compensation for a representative
period, not less than one month represents commissions on goods. In
determining the proportion of compensation representing
commissions, all earnings resulting from the application of a bona
fide commission rate shall be deemed commissions on goods without
regard to whether the computed commissions exceed the draw or
guarantee.
Ms. Johnson asserts that because the retail commission exemptions
are the Defendant's affirmative defenses, it is premature to
resolve their applicability on a motion to dismiss. Mattress
Warehouse argues Johnson's earnings statements, although not
attached to her Complaint, support dismissal because they make it
"apparent" that the FLSA and PMWA retail commission exemptions
apply to bar her claims. Ms. Johnson counters that for the retail
service exemptions to apply, Mattress Warehouse must prove that
"the fee paid the employee" is "based on a bona fide commission
rate."
District Judge Gerald J. Pappert opines that even if Ms. Johnson's
paystubs are integral to her complaint such that they can be
considered at this stage of the litigation, the Court is not
convinced that they make it "apparent" that Ms. Johnson's FLSA and
PMWA claims should be dismissed based on the Defendant's assertion
of the "retail commission overtime exemption" affirmative defense.
FLSA exemptions are construed "narrowly against the employer,"
citing Davis v. Mountaire Farms, Inc., 453 F.3d 554, 556 (3d Cir.
2006).
A full-text copy of the District Court's June 1, 2020 Memorandum is
available at https://tinyurl.com/ybu6pl2y from Leagle.com
MDL 1430: Final Report on Mazzone Awards Program Acknowledged
-------------------------------------------------------------
In the case, JOHN MARKS, individually and on behalf of all others
similarly situated, Plaintiff, v. NEON THERAPEUTICS, INC., CARY
PFEFFER, ROBERT BAZEMORE, ROBERT KAMEN, ERIC LANDER, HUGH O'DOWD,
STEPHEN SHERWIN, ROBERT TEPPER, and MERYL ZAUSNER, Defendants, Case
No. 20-CV-3033 (RA) (S.D. N.Y.), Judge Ronnie Abrams of the U.S.
District Court for the Southern District of New York ordered the
Plaintiff to promptly file a copy of the class notice on ECF.
On April 15, 2020, the Plaintiff filed a class action lawsuit on
behalf of public holders of the common stock of Neon Therapeutics.
The complaint alleges violations of Sections 14(a) and 20(a) of the
Securities Exchange Act of 1934.
Section 78u-4(a)(3)(A) of the Private Securities Litigation Reform
Act ("PSLRA") requires that not later than 20 days after the date
on which the complaint is filed, the plaintiff or plaintiffs will
cause to be published, a notice advising members of the purported
plaintiff class - (I) of the pendency of the action, the claims
asserted therein, and the purported class period; and (II) that,
not later than 60 days after the date on which the notice is
published, any member of the purported class may move the court to
serve as lead plaintiff of the purported class.
The PSLRA also requires that not later than 90 days after the date
on which notice is published, the Court will consider any motion
made by a purported class member in response to the notice, and
will appoint as lead plaintiff the member or members of the
purported plaintiff class that the Court determines to be most
capable of adequately representing the interests of the class
members. In the event that more than one action on behalf of a
class asserting substantially the same claim or claims has been
filed, and any party has sought to consolidate those actions for
pretrial purposes or for trial, the Court will not appoint a lead
plaintiff until after a decision on the motion to consolidate is
rendered.
Judge Abrams ordered the Plaintiff to promptly file a copy of the
notice on ECF. The members of the purported class will have until
60 days from the Plaintiff's publishing of the required notice to
move the Court to serve as lead plaintiffs. Once the Plaintiff has
provided the Court with a copy of its notice, the Court will set a
conference to consider any motions for appointment of lead
plaintiff and lead counsel and for consolidation. That conference
will be held within 90 days of the notice's publication. Upon
scheduling the conference, the Court will also set a deadline for
the service and filing of the oppositions to any motion for
appointment of lead plaintiff.
The Plaintiff will promptly serve a copy of the Order on each of
the Defendants.
A full-text copy of the District Court's May 29, 2020 Order is
available at https://is.gd/qyxbRq from Leagle.com.
MDL 2641: CMO 47 Entered in IVC Filters Products Liability Suit
---------------------------------------------------------------
Judge David G. Campbell of the U.S. District Court for the District
of Arizona entered Case Management Order No. 47 in IN RE: Bard IVC
Filters Products Liability Litigation, Case No. MDL
15-02641-PHX-DGC (D. Ariz.).
A recent filing in an individual case asserted that some cases in
the MDL have been dismissed without prejudice and without being
settled, the parties having entered into a tolling agreement so
they could continue settlement discussions outside the confines of
the MDL. The filing indicated that if settlement is not reached in
these cases, the Plaintiffs will have 90 days to bring new actions.
In an order dated June 29, 2020, the Court expressed concern about
this information because CMO 42, which governs the settlement
process in the MDL, contemplated that cases would remain in two
settlement tracks until either they are settled or settlement talks
fail, in which event they would be remanded or transferred to the
proper districts. CMO 42 did not permit cases that have failed to
settle to be dismissed from the MDL without prejudice only to be
refiled as a new cases. That approach would undermine the purposes
of the MDL and create law-of-the-case issues in refiled actions.
The Court directed the parties to explain: (1) How many cases have
been dismissed pursuant to stipulations but without settlement; (2)
Why the Court was not informed of this fact, particularly given the
clear intent of CMO 42; (3) What the agreement between the parties
is with respect to these cases; and (4) What happened to the cases
since they have been dismissed. The parties have filed a response
which makes clear that the information provided in the individual
filing was not entirely accurate.
The response makes clear that the information contained in the
individual filing that prompted the Court's concerns was
inaccurate. The cases dismissed by stipulation have been subject
to agreed-upon settlement terms. The Court was not aware, however,
that many of the dismissed Plaintiffs had not yet agreed to the
settlement terms and that the parties had agreed those Plaintiffs
could refile their cases if they did not agree.
That portion of the arrangement is inconsistent with CMO 42 and
would present the problems identified in the Court's June 29, 2020
order--new cases filed by the opt-out Plaintiffs would not have
been part of the MDL, would not bring with them the voluminous
discovery completed in the MDL, and would not be subject to law of
the case and the numerous legal rulings made in the MDL. Clearly,
the Plaintiffs in those cases should not file new claims, but their
cases should be revived in the MDL and remanded or transferred to
the proper courts subject to all of the discovery and rulings
completed in the MDL over the last several years.
The Court held a telephone conference with the parties on July 15,
2020. The parties provided additional information and updates on
some of the numbers set forth. On the basis of the joint filing
and the conference call, Judge Campbell vacated the dismissal of
any case that was dismissed as part of an aggregate settlement
agreement between the counsel and where the Plaintiff chooses not
to accept the agreed-upon settlement terms. He specifically
ordered that no such case will be refiled as a new lawsuit.
Instead, the dismissal will be vacated and the Court will remand or
transfer the case to the appropriate court, thereby ensuring that
the case remains subject to the work completed in the MDL.
The Court directed the Plaintiffs and the Defense counsel to
provide by July 31, 2020, a joint report on the status of Track 2
cases. The report will identify the Track 2 cases that are subject
to settlement agreements, and the date by which settlements must be
completed under those agreements. The report will identify the
Track 2 cases that are not subject to settlements agreements and
describe their status and what if any additional action should be
taken in those cases as part of the MDL. If Track 2 cases are
ready for remand or transfer, the parties will provide (a) the
Plaintiff's name, (b) the individual case number, (c) the date the
case was transferred to or directly filed in the MDL, (d) the
appropriate remand or transfer venue, and (e) if that venue is
either Arizona or New Jersey, the basis for diversity jurisdiction.
The parties also will (i) update and lodge with the Court the joint
proposed report to be sent to the JPML with cases recommended for
remand and to districts receiving transfers under Section 1404(a);
(ii) update and file the stipulated designation of record to be
sent with remanded and transferred cases; (iii) provide the Clerk
of Court with a ZIP file containing the documents identified in the
updated designation of record; and (iv) provide the Court with
Word-formatted versions of the report concerning the status of
Track 2 cases, the joint proposed report to be sent to receiving
courts, and the stipulated designation of record.
By Oct. 23, 2020, the Plaintiffs and the Defense counsel will
provide the Court with a list of all cases that were dismissed
under a settlement agreement but where the Plaintiffs have opted
out of the settlement. The Court will vacate the settlement of all
listed cases and transfer or remand them to appropriate courts. For
each such case, the parties will provide (a) the Plaintiff's name,
(b) the individual case number, (c) the date the case was
transferred to or directly filed in the MDL, (d) the appropriate
transfer or remand venue, and (e) if that venue is either Arizona
or New Jersey, the basis for diversity jurisdiction.
The parties also shall: (i) update and lodge with the Court the
joint proposed report to be sent to the JPML with cases recommended
for remand and to districts receiving transfers under Section
1404(a); (ii) update and file the stipulated designation of record
to be sent with remanded and transferred cases; (iii) provide the
Clerk of Court with a ZIP file containing the documents identified
in the updated designation of record; and (iv) provide the Court
with Word-formatted versions of the report concerning dismissed
Track 2 cases, the joint proposed report to be sent to receiving
courts, and the stipulated designation of record.
By Nov. 13, 2020, the Plaintiffs and the Defense counsel will
provide a joint report on all Track 2 cases for which no
appropriate stipulated dismissal has been filed by Nov. 2, 2020.
For each such case, the parties will provide (a) the Plaintiff's
name, (b) the individual case number, (c) the date the case was
transferred to or directly filed in the MDL, (d) the appropriate
transfer or remand venue, and (e) if that venue is either Arizona
or New Jersey, the basis for diversity jurisdiction.
The parties also shall: (i) update and lodge with the Court the
joint proposed report to be sent to the JPML with cases recommended
for remand and to districts receiving transfers under Section
1404(a); (ii) update and file the stipulated designation of record
to be sent with remanded and transferred cases; (iii) provide the
Clerk of Court with a ZIP file containing the documents identified
in the updated designation of record; and (iv) provide the Court
with Word-formatted versions of the report concerning the
non-dismissed Track 2 cases, the joint proposed report to be sent
to receiving courts, and the stipulated designation of record.
A full-text copy of the Court's July 15, 2020 Order is available at
https://is.gd/vmTzBH from Leagle.com.
MEWBOURNE OIL: Lease Operators/Pumpers Class Certified in 'Felps'
-----------------------------------------------------------------
District Judge Martha Vazquez of the United States District Court
for the District of New Mexico issued a Memorandum Opinion and
Order in the case captioned JONATHAN FELPS, Individually and On
Behalf of All Others Similarly Situated, Plaintiffs, v. MEWBOURNE
OIL COMPANY, INC., Defendant, Case No. 18-811 MV/GJF (D.N.M.),
granting Plaintiff's Amended Motion for Expedited Conditional
Certification of Collective Action.
Defendant Mewbourne Oil Company is an oil and gas production
company doing business in New Mexico, Oklahoma, and Texas. From
2014 to October 2016, Plaintiff Jonathan Felps worked as a Lease
Operator, or Pumper, for Defendant at its Hobbs, New Mexico
location. All of Defendant's Lease Operators perform the same job
duties, namely, outdoor manual labor, including operating oilfield
equipment, inspecting and maintaining oilfield equipment,
monitoring oilfield equipment, and collecting and relaying data to
supervisors for analysis.
In August 2016, the United States Department of Labor ("DOL")
commenced an investigation into Defendant's practices of
classifying its employees, through which it determined that
Defendant had been misclassifying its Lease Operators as exempt
from the overtime protections of the Fair Labor Standards Act
("FLSA"). Based on this misclassification, all Lease Operators
employed by Defendants, including Plaintiff, were paid only a base
salary and received no additional compensation for hours worked in
excess of 40 hours a week.
As a result of the DOL investigation, Defendant made back-wage
payments to 53 of its Lease Operators and obtained DOL-approved
releases from them. Further, in October 2016, Defendant
reclassified its Lease Operators as hourly, non-exempt employees
entitled to overtime.It was not until June 21, 2017, however, that
Defendant began paying its Lease Operators overtime for hours
worked in excess of 40 hours a week.
Plaintiff did not receive any funds as a result of the DOL
investigation and did not sign any release of claims. Nor did
Jammie Hobbs, who similarly worked as a Lease Operator at
Defendant's Hobbs, New Mexico location, or Keenan Senter, who
worked as a Lease Operator at Defendant's Canadian, Texas
location.
Plaintiff commenced this action "individually and on behalf of all
others similarly situated" against Defendant, asserting violations
of both the FLSA and the New Mexico Minimum Wage Act. Soon
thereafter, Plaintiff filed a motion seeking conditional
certification of an FLSA collective action, which he amended via
the instant Amended Motion. Specifically, Plaintiff requests
conditional certification of a class of "[a]ll persons who worked
as a Lease Operator[] or Pumper for Defendant at any time between
October 31, 2015 and June 21, 2017." Defendant opposes Plaintiff's
request for conditional class certification.
"Because Plaintiff has undisputedly met his (only) burden of
substantially alleging that he and the other proposed class members
are similarly situated, conditional certification at this initial
notice stage is appropriate," ruled Judge Vazquez in a May 18, 2020
Memorandum Opinion and Order, a full-text copy of which is
available at https://tinyurl.com/ycahjscu from Leagle.com.
The Court will grant Plaintiff's request for conditional
certification of the class as proposed by Plaintiff, provisionally
toll the statute of limitations as to potential plaintiffs, and
allow Plaintiff to provide notice to putative class members by
mail, email, and text message in conformity with the form of Notice
attached to Plaintiff's Amended Motion, with the some noted
revision.
Judge Vazquez held that the Plaintiff's Amended Motion for
Expedited Conditional Certification of Collective Action and
Judicially-Supervised Notice Under Section 216(b) and Brief in
Support is GRANTED, as follows:
(1) This case is conditionally certified as a collective action
under 29 U.S.C. § 216(b) and will proceed as such until further
order of the Court. The class members shall include: All persons
who worked as a Lease Operator or Pumper for Defendant at any time
between October 31, 2015 and June 21, 2017.
(2) The Court authorizes the expedited issuance of the Notice of
Collective Action and Consent Form (the "Notice and Consent") that
Plaintiff filed as Exhibit C to Plaintiff's Amended Motion, with
the following paragraph added after the paragraph that now appears
in response to the first question ("Why Are You Getting this
Notice?"): Mewbourne does not contest that it violated the FLSA by
classifying its Lease Operators as exempt from overtime but denies
that it willfully violated the FLSA. This notice is for the sole
purpose of determining the identity of those persons who wish to be
involved in this lawsuit. The Court has not yet determined whether
Plaintiff or Mewbourne is right.
(3) The Notice and Consent shall be delivered or otherwise
disseminated by mail, email, and a website solely dedicated to
disseminating the Notice and Consent.
(4) The Court authorizes the expedited issuance of the Text
Message Notice filed as Exhibit D to Plaintiff's Amended Motion, to
be delivered or otherwise disseminated by text message.
(5) Plaintiff is authorized to offer the putative class members
the option to consent to join this collective action through the
use of electronic signatures.
(6) The parties shall comply with the following schedule:
(a) No later than 10 days from the date of entry of this
Memorandum Opinion and Order, Defendant shall provide to class
counsel in Excel (.xlsx) format the following information regarding
all putative class members: full name; last known mailing
address(es) with city, state, and zip code; all known email
addresses(es); beginning date(s) of employment; ending date(s) of
employment (if applicable); and telephone number(s).
(b) Within 30 days of receiving the contact information for all
putative class members, class counsel shall send a copy of the
Notice and Consent to the putative class members by First Class
United States mail and electronic mail; class counsel may send the
Text Message Notice of Collective Action through text message; and
class counsel may make the Notice and Consent available on a
website solely dedicated to disseminating notice.
(c) Within five days of the initial mailing and emailing of the
Notice and Consent, class counsel shall file an advisory with the
Court indicating the date of initial delivery of the Notice and
Consent.
(d) The putative class members shall have 60 days from the date of
initial delivery of the Notice and Consent to return their signed
consent forms to class counsel for filing with the Court (the
"Notice Period"). After the Notice Period has closed, Defendant may
remove the Notice and Consent that it has posted.
MIRAND RESPONSE: Must Reply to RFPs & Interrogatories in Drake Suit
-------------------------------------------------------------------
In the case, BRENDA DRAKE, on behalf of herself and others
similarly situated, Plaintiff, v. MIRAND RESPONSE SYSTEMS, INC.,
WOODFOREST NATIONAL BANK, Defendants, Case No.
1:19-cv-01458-RLY-DML (S.D. Ind.), Magistrate Judge Debra McVicker
Lynch of the U.S. District Court for the Southern District of
Indiana, Indianapolis Division, granted Ms. Drake's motion to
compel Defendant Mirand to answer certain document requests and
interrogatories and to produce a Rule 30(b)(6) deponent for certain
topics.
The case arises under the Telephone Consumer Protection Act
("TCPA") and the Fair Debt Collection Practices Act ("FDCPA").
Discovery directed specifically at the FDCPA claim is not at issue
on the Plaintiff's motion to compel, and that claim will not be
further addressed.
Ms. Drake alleges that Defendant Mirand is a debt collector, and
it, acting as an agent for creditor Woodforest National Bank and
using an automatic telephone dialing system (as defined in the
TCPA) or an artificial or prerecorded voice, called her cell phone
to collect a debt owed to Woodforest. It is not clear whether Ms.
Drake still intends to prove that Mirand used an automatic
telephone dialing system, as opposed to proof only that an
artificial or prerecorded voice was used; that opacity does not
affect the discovery issues. Her discovery motion states she
anticipates removing from her class definition any reference to an
automatic telephone dialing system, and she intends to refer only
to calls made to cell phone numbers through a platform used by
DialConnection, the vendor Mirand uses to facilitate the making of
calls using either an ATDS or an artificial or prerecorded voice.
The complaint alleges Mirand called Ms. Drake twice in March 2019,
but Ms. Drake's discovery motion states Mirand called her 30 times
"and left 30 prerecorded voice messages" on her cell phone
voicemail, a cell number Ms. Drake had been assigned in May 2018.
She asserts she never had an account with Woodforest and never gave
consent to receive the calls, implying that Mirand was trying to
reach a person who had had that cell phone number before it was
assigned to her.
Based on the amendments, Ms. Drake states she anticipates making to
her TCPA class definition as explained in her motion to compel, she
will ask the court to certify a class of all persons in the United
States (1) to whom Mirand placed or caused to be placed a call on
behalf of Woodforest,4 (2) directed to a cell number that was not
assigned to the intended recipient at the time of the call, (3) by
using an artificial or prerecorded voice, (4) from April 14, 2015,
through the date of class certification.
The matter is before the Court on Ms. Drake's motion to compel
Mirand to answer certain document requests and interrogatories and
to produce a Rule 30(b)(6) deponent for certain topics. She
contends the discovery is relevant and proportional to her putative
class action claims under the TCPA and is needed to (i) file a
brief to support a motion for class certification, (ii) explore the
strength of Mirand's consent defense, and (iii) explore potential
class damages. The discovery disputes concern: Document Requests
("RFPs") 11-19, Interrogatories 9-14, and Rule 30(b)(6) topics
13-16.
Document request 11 seeks documents and electronically stored
information sufficient to identify the telephone numbers to which
Mirand made, or caused to be made, calls by using an ATDS,
predictive dialer, or artificial or prerecorded voice.
Document request 12 seeks documents and electronically stored
information sufficient to identify the telephone numbers to which
Mirand made, or caused to be made, calls by using the hardware or
software Mirand used to place, or cause to be placed, calls to
Plaintiff Drake, or to Ms. Drake's cell phone number.
Document request 13 seeks--for the telephone numbers identified in
the documents responsive to RFPs 11-12--documents and
electronically stored information sufficient to identify the
telephone numbers for which Mirand's records show that a person
associated with one of them indicated that Mirand contacted the
wrong person or wrong telephone number.
Document requests 14 and 15 seek--for all telephone numbers to
which calls were made using an ATDS, predictive dialer, artificial
or prerecorded voice, or by using the hardware or software used to
place the calls to Ms. Drake or her cell phone number--documents
sufficient to identify for which numbers a call was placed after
Mirand's records show that the called party was not the person
Mirand intended to reach or that the called party indicated that
Mirand contacted the wrong person or telephone number.
Document request 16 seeks--for all telephone numbers to which calls
were made using an ATDS, predictive dialer, artificial or
prerecorded voice, or by using the hardware or software used to
place the calls to Plaintiff Drake or her cell phone
number--documents and electronically stored information sufficient
to identify the numbers that were, or that Mirand's records
indicate were, assigned to a cellular telephone service.
Document request 17 seeks--for all telephone numbers to which calls
were made using an ATDS, predictive dialer, artificial or
prerecorded voice, or by using the hardware or software used to
place the calls to Plaintiff Drake or her cell phone
number--documents and electronically stored information sufficient
to identify each call Mirand placed, or caused to be placed, to the
numbers.
Document request 18 seeks--for all telephone numbers to which calls
were made using an ATDS, predictive dialer, artificial or
prerecorded voice, or by using the hardware or software used to
place the calls to Plaintiff Drake or her cell phone
number--documents and electronically stored information sufficient
to identify the names, addresses, and additional contact
information that Mirand has for persons it or Woodforest associates
with the telephone numbers.
Document request 19 seeks--for all telephone numbers to which calls
were made using an ATDS, predictive dialer, artificial or
prerecorded voice, or by using the hardware or software used to
place the calls to plaintiff Drake or her cell phone
number--documents and electronically stored information evidencing
express consent Mirand had to make, or cause to be made,
communications, or attempted communications, to the telephone
numbers.
Magistrate Judge Lynch granted the Plaintiff's motion to compel as
provided in the Order. She holds that is no doubt the Plaintiff is
entitled to discovery relevant to Rule 23 class certification
issues. The Plaintiff must be provided with some discovery to
assist her presentation of evidence regarding numerosity,
commonality, typicality, adequacy (as that element overlaps with
commonality and typicality), and predominance/superiority. See Rule
23(a) and 23(b)(3). But at this stage of the litigation before a
class is certified, it is not proportional discovery to require
Mirand to produce information and documents solely grounded (a) in
any defense by Mirand that a called party did not consent to the
call or (b) in determining the extent of class damages. To the
extent discovery is otherwise proportional to the class
certification issues, the fact that it also may bear on a consent
defense or on damages does not permit the discovery to be
withheld.
Magistrate Judge Lynch will not, at this time, require Mirand to
make any manual account-by-account or number-by-number reviews.
Mirand must produce to the plaintiff information available through
queries of its Latitude system, whether or not each such query will
result in a list of accounts or telephone numbers that identifies
each TM with a WN and a LM. Multiple queries can be made,
resulting in various lists of data. The Plaintiff then may be able
to conduct cross-checks of the lists to identify telephone numbers
and/or accounts sufficiently typical of the named Plaintiff's
claim--a call to a cell phone number using an ATDS or an artificial
or prerecorded voice that did not reach the intended party
(Woodforest Bank debtor).
Mirand must produce within 14 days results of the following queries
in a format (if at all possible) that will permit the Plaintiff to
conduct her own searches within the results:
1. A query of all telephone numbers marked as TM, with a
resulting list that gives the telephone number, account number, and
account name(s). The list should be sorted by telephone number.
2. A query of all telephone numbers marked as TM and as WN,
with a resulting list that gives the telephone number, account
number, account name(s), and date WN was entered. The list should
be sorted by telephone number, and then by date WN was entered.
3. A query of all telephone numbers marked as TM and as WN,
with a resulting list that gives the telephone number, account
number, account name(s), and date WN was entered. The list should
be sorted by date WN was entered, and then by telephone number.
4. A query of all telephone numbers marked as TM and as LM,
with a resulting list that gives the telephone number, account
number, account name(s) and date(s) LM was entered. The list
should be sorted by telephone number, and then by date LM was
entered.
5. A query of all telephone numbers marked as TM and as LM,
with a resulting list that gives the telephone number, account
number, account name(s), and date(s) LM was entered. The list
should be sorted by date LM was entered, and then by telephone
number.
6. A query of all telephone numbers marked as TM and as CD,
with a resulting list that gives the telephone number, account
number, account name(s) and date CD was entered. The list should
be sorted by telephone number, and then by date CD was entered.
7. A query of all telephone numbers marked as TM and as CD,
with a resulting list that gives the telephone number, account
number, account name(s), and date CD was entered. The list should
be sorted by date CD was entered, and then by telephone number.
A full-text copy of the Court's July 15, 2020 Order is available at
https://is.gd/i5sms8 from Leagle.com.
MISSISSIPPI POWER: Turnage Plaintiffs Seek to Revive Suit
---------------------------------------------------------
Mississippi Power Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 30, 2020, for the
quarterly period ended June 30, 2020, that the plaintiffs in the
putative class action suit initiated by Ray C. Turnage have sought
revision of the court's decision in granting the company's motion
to dismiss the first amended complaint.
In November 2018, Ray C. Turnage and 10 other individual plaintiffs
filed a putative class action complaint against Mississippi Power
and the three then-serving members of the Mississippi PSC in the
U.S. District Court for the Southern District of Mississippi.
Mississippi Power received Mississippi PSC approval in 2013 to
charge a mirror Construction work in progress (CWIP) rate premised
upon including in its rate base pre-construction and construction
costs for the Kemper IGCC prior to placing the Kemper IGCC into
service.
The Mississippi Supreme Court reversed that approval and ordered
Mississippi Power to refund the amounts paid by customers under the
previously-approved mirror CWIP rate.
The plaintiffs allege that the initial approval process, and the
amount approved, were improper. They also allege that Mississippi
Power underpaid customers by up to $23.5 million in the refund
process by applying an incorrect interest rate.
The plaintiffs seek to recover, on behalf of themselves and their
putative class, actual damages, punitive damages, pre-judgment
interest, post-judgment interest, attorney's fees, and costs.
In response to Mississippi Power and the Mississippi PSC each
filing a motion to dismiss, the plaintiffs filed an amended
complaint in March 2019. The amended complaint included four
additional plaintiffs and additional claims for gross negligence,
reckless conduct, and intentional wrongdoing.
Mississippi Power and the Mississippi PSC have each filed a motion
to dismiss the amended complaint. On March 27, 2020, the
Mississippi PSC's motion to dismiss was granted.
Also on March 27, 2020, the plaintiffs filed a motion seeking to
name the new members of the Mississippi PSC, the Mississippi
Development Authority, and Southern Company as additional
defendants and add a cause of action against all defendants based
on a dormant commerce clause theory under the U.S. Constitution.
On April 9, 2020 and April 10, 2020, Mississippi Power and the
Mississippi PSC, respectively, filed responses opposing the motion
for leave to file a second amended complaint.
On May 26, 2020, Mississippi Power's motion to dismiss the first
amended complaint filed in 2019 was granted.
On July 6, 2020, the plaintiffs filed a motion for revision of the
court's decision. The plaintiffs' motion for leave to file a second
amended complaint also remains pending before the court.
Mississippi Power said, "An adverse outcome in this proceeding
could have a material impact on Mississippi Power's financial
statements."
Mississippi Power Company, headquartered in Gulfport, Mississippi,
is a regulated utility subsidiary of The Souterhern Company, a
utility holding company headquartered in Atlanta, Georgia.
MMJ AMERICA: Sends Unsolicited Text Messages, Natividad Says
------------------------------------------------------------
JOHN NATIVIDAD, individually and on behalf of all others similarly
situated, Plaintiff v. MMJ AMERICA HOLDINGS CORPORATION, Defendant,
Case No. 2:20-cv-01407-RFB-EJY (D. Nev., July 29, 2020) is a class
action against the Defendant for alleged violation of the Telephone
Consumer Protection Act.
The Plaintiff, on behalf of himself and all others similarly
situated consumers, alleges that the Defendant sent numerous text
messages to his cellular phone number using an automatic telephone
dialing system in an attempt to promote its cannabis products
without obtaining prior express written consent.
As a result of the Defendant's misconduct, the Plaintiff suffered
damages including invasion of privacy, harassment, aggravation, and
disruption of the daily life.
MMJ America Holdings Corporation is a cannabis dispensary with its
principal office located at 4660 S Decatur Blvd., Las Vegas,
Nevada. [BN]
The Plaintiff is represented by:
Gustavo Ponce, Esq.
KAZEROUNI LAW GROUP, APC
6069 South Fort Apache Road, Suite 100
Las Vegas, NV 89148
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: gustavo@kazlg.coma
MONARCH INVESTMENT: Turner Sues to Collect Unpaid Overtime Wages
----------------------------------------------------------------
David Turner, individually and on behalf of himself and all others
similarly situated v. MONARCH INVESTMENT & MANAGEMENT GROUP, LLC,
Case No. 2:20-cv-03997-MHW-EPD (S.D. Ohio, Aug. 6, 2020), is
brought to collect unpaid overtime compensation and other unpaid
compensation under the Fair Labor Standards Act.
The Plaintiff began working for the Defendant on December 11, 2019,
in the position of Leasing Agent and ended on May 8, 2020. The
Plaintiff alleges that he regularly worked more than 40 hours in a
workweek.
In addition to the hourly pay, Leasing Agents and Assistant
Managers receive commissions for securing new leases and for
securing renewals ("Commission Payments"). The Defendant's
Commissions Policy is a companywide written policy that applies to
all hourly employees who earn commissions, including Leasing Agents
and Assistant Managers. Commission Payments are paid monthly in a
separate paycheck and cover a one month period of time.
The Plaintiff contends that Commission Payments for securing leases
and renewals are not included in Leasing Agents or Assistant
Managers' regular rate of pay when calculating overtime
compensation. Because Commission Payments are required by Federal
and State Law to be included in the regular rate of pay, the
Defendant failed to properly pay Leasing Agents and Assistant
Managers overtime at one and one half times their regular rate of
pay for all hours worked, says the complaint.
The Defendant is in the business of acquiring and managing
multifamily apartment communities and owns/manages communities
across the United States.[BN]
The Plaintiff is represented by:
Greg R. Mansell, Esq.
Carrie J. Dyer, Esq.
Kyle T. Anderson, Esq.
MANSELL LAW, LLC
1457 S. High St.
Columbus, OH 43207
Phone: 614-610-4134
Fax: 614-547-3614
Email: Greg@MansellLawLLC.com
Carrie@MansellLawLLC.com
Kyle@MansellLawLLC.com
MONTAFON: Cond. Collective Action Certification Granted in Pequero
------------------------------------------------------------------
In the case, AMIN LAFRANCO PEQUERO, RUBEN MOJICA, and HENRY
MARTINEZ, on behalf of themselves and other persons similarly
situated, Plaintiffs, v. MONTAFON, LLC, d/b/a MONT BLANC 52, BALZ
EGGIMANN, and MARIA LOHMEYER, individually, Defendants, Case No.
18cv12187 (DF) (S.D. N.Y.), Magistrate Judge Debra Freeman of the
U.S. District Court for the Southern District of New York granted
in part and denied in part the Plaintiffs' motion for conditional
certification pursuant to Section 216(b) of the Fair Labor
Standards Act ("FLSA").
In the action brought under the FLSA and the New York Labor Law
("NYLL"), Plaintiffs Pequero, Mojica, and Henry Martinez bring
claims alleging, inter alia, that they were denied overtime pay
while employed by Defendants Montafon, doing business as Mont Blanc
52, Eggiman, and Lohmeyer. According to the Second Amended
Complaint, Defendant Eggiman owns, and Defendant Lohmeyer manages,
Mont Blanc 52, a Swiss-Austrian restaurant located in Manhattan.
The Plaintiffs allege that both Eggiman and Lohmeyer maintain
control, oversight, and the direction of Montafon. They also plead
that Montafon is engaged in interstate commerce, has gross annual
sales in excess of $500,000, and has "purchased and handled goods
moved in interstate commerce," bringing it within the coverage of
the FLSA. The Plaintiffs allege that each of the Defendants
qualifies as an "employer" under the FLSA, as each exercises
sufficient control over Montafon and its employees' working
conditions, has the authority to hire and fire employees, and
established and maintains policies regarding Montafon's pay
practices for its workers.
Plaintiff Pequero alleges that he was employed by the Defendants at
the Restaurant from December 2017 through Dec. 5, 2018. Plaintiff
Mojica was allegedly employed by Defendants at the Restaurant from
June 11, 2017 through Feb. 15, 2019. The Second Amended Complaint
alleges that Plaintiff Martinez (who has not submitted a
declaration in support of conditional certification) was employed
by the Defendants at the Restaurant from May 2017 through May 2018.
Pequero filed the Complaint initiating the instant proceeding on
Dec. 26, 2018, asserting claims under both the FLSA and the NYLL.
The Defendants filed their Answer to the Complaint on Feb.y 12,
2019. On May 20, 2019, the Plaintiffs submitted a letter motion to
amend the Complaint for the purpose of adding Mojica as a
Plaintiff, but, on May 31, 2019, based on the original Complaint,
the Plaintiffs filed a motion for conditional certification of an
FLSA collective and facilitation of notice. On June 3, 2019, their
motion to amend was granted and their motion for conditional
certification was thereupon denied without prejudice.
On June 10, 2019, the Plaintiffs filed their First Amended
Complaint, adding Mojica as a Plaintiff, and, simultaneously,
refiled their motion for conditional certification. The Defendants
answered the Plaintiffs' First Amended Complaint on June 14 and
filed a memorandum of law opposition to the motion for collective
certification on June 24. On July 16, 2019, however, the
Plaintiffs again sought leave to file an amended complaint, this
time to add Martinez as a Plaintiff. The Court granted the motion
to amend and the Plaintiffs filed their Second Amended Complaint on
Aug. 7, 2019. The Defendants answered the Second Amended Complaint
on Aug. 20, 2019.
On Sept. 11, 2019, the Court issued an Order denying without
prejudice the Plaintiffs' renewed motion for conditional
certification and directing the Plaintiffs to refile their motion,
so as to reflect the allegations in the Second Amended Complaint,
and to be accompanied by an affidavit or declaration from Martinez,
if appropriate. Accordingly, the Plaintiffs filed the instant
Second Motion for Conditional Certification on Sept. 18, 2019.
By their motion, the Plaintiffs seek to proceed in the case on
behalf of themselves and all similarly situated persons employed by
the Defendants at any time in the six years prior to the filing of
the instant lawsuit. In support of their motion, the Plaintiffs
again submitted the Declarations cited, a memorandum in support of
the motion, and a Declaration from their counsel, accompanied by
the Plaintiffs' proposed notice to potential collective action
members and a proposed consent-to-join form. The Plaintiffs did
not, however, submit a declaration from Martinez.
On Oct. 1, 2019, the Defendants filed a memorandum in opposition to
the motion. Along with their memorandum, the Defendants submitted
Declarations from Lohmeyer and Eggiman. Their counsel also
submitted his own Declaration, to which he attached copies of the
Plaintiffs' Second Amended Complaint and the Defendants' Second
Amended Answer. The Plaintiffs filed a reply memorandum on Oct. 8,
2019.
The question for the Court on the Plaintiffs' motion for
conditional certification of an FLSA collective is whether the
named Plaintiffs have made the necessary modest showing, through
the allegations in the Complaint and in the submitted Declarations,
that they and others share at least some similar issue of law or
fact, material to the disposition of their claims, with respect to
the defendant's alleged common policy or plan that violated the
FLSA. In accordance with the reasoning of Scott, the named
Plaintiffs need not show that there are no dissimilarities among
them and other employees, as they may proceed in a collective to
the extent they share a similar issue.
In their Second Amended Complaint, the Plaintiffs--who claim to
have performed work at the Restaurant as salad makers, dishwashers,
dessert makers, cleaners, and/or prep cooks--purport to bring the
action on behalf of themselves and other similarly situated persons
who are current and former employees of the Restaurant during the
statute-of-limitations period and who elect to opt in to the
action. More specifically, they allege, in their pleading, that
the collective should be comprised of approximately 30 current and
former cooks, salad makers, waiters, and dishwashers. In their
briefing, however, they propose to alter the composition of the
requested collective, so as to omit waiters, but to add prep cooks
and delivery workers.)
In their opposition brief, the Defendants contend that, even if the
Plaintiffs, at this juncture, need only make a modest factual
showing sufficient to demonstrate that they and the potential
Plaintiffs together were victims of a common policy or plan that
violated the law, the Plaintiffs' have not met that modest burden.
Although the Defendants appear to suggest that certification of any
FLSA collective would be inappropriate, their opposition chiefly
argues that the Plaintiffs have failed to make any showing
regarding positions and job titles other than salad makers and
dishwashers.
Magistrate Judge Freeman concludes that conditional
certification--albeit of a more limited collective than the one
sought by the Plaintiff--is appropriate. She finds that the
factual and legal issues alleged to be common with respect to the
way in which the named Plaintiffs were paid--in their shared
positions as salad makers and dishwashers--are material to the
question of whether Plaintiffs are entitled to FLSA damages. She
is therefore satisfied that the Plaintiffs have met their burden of
showing that dishwashers and salad makers are similarly situated
for purposes of conditional collective certification.
The Plaintiffs seek to include in the proposed collective not just
salad makers and dishwashers, but also workers who held certain
other positions at the Restaurant. The Magistrate holds that the
Plaintiffs have not sufficiently demonstrated that the collective
should include workers in other job positions.
As the Plaintiffs have failed to meet even their modest burden of
showing that cooks and delivery workers employed by the Defendants
are similarly situated to them, she will not conditionally certify
a collective that includes these categories of workers. With
respect to cooks and delivery workers (which apply equally to
waiters), inclusion of waiters in the collective would also be
inappropriate. And, for the same reason she rejects the
Plaintiffs' request to include cooks, delivery workers, and waiters
from the collective, the Magistrate similarly concludes that the
Plaintiffs have not make even the "modest" requisite showing that
prep cooks should be considered "similarly situated" employees with
respect to the Defendants' alleged unlawful practices.
Accordingly, the Magistrate only finds it appropriate to grant
conditional certification with respect to the job positions of
salad maker and dishwasher.
As part of their motion for collective action certification, the
Plaintiffs request that the Court orders that notice be posted and
issued to all potential collective action members. The Plaintiffs
have submitted a Proposed Notice of Collective Action Lawsuit,
which they request that the Court authorizes for distribution to
all covered employees. The Defendants do not object to the scope
or form of the Proposed Notice in their Opposition, but rather
argue generally that the Court should deny the Plaintiffs' Motion
in its entirety. In light of the rulings, the Magistrate will
authorize notice, but the proposed notice submitted by the
Plaintiffs must be modified to some extent, consistent with her
Order.
The Proposed Notice should be modified, so as to be directed to
those employed as a salad maker or dishwasher at the Restaurant
from Dec. 26, 2015, through the present. The proposed 60-day
opt-in period for the potential Plaintiffs who may wish to join the
collective is appropriate. To increase the effectiveness of the
notice in reaching the potential opt-in Plaintiffs, the Plaintiffs
are granted leave to send out notice of the collective action in
both English and Spanish.
The Defendants are ordered to post the modified notice in the
Restaurant in a location clearly visible to the potential opt-in
Plaintiffs. Finally, in order to facilitate the provision of
notice, the Defendants will produce a "computer-readable list"
containing contact information for all cooks, prep cooks, salad
makers, dishwashers, and delivery people at any point in the six
years prior to the filing of the instant suit within 10 days of its
Order being issued. The information should be provided by the
Defendants in an electronic, "computer-readable" form (e.g., a
Microsoft Excel spreadsheet).
For all of the foregoing reasons, Magistrate Judge Freeman granted
in part and denied in part the Plaintiffs' motion for conditional
certification of an FLSA collective action and Court-authorized
notice. She granted conditional collective action certification,
and authorized notice, of an FLSA collective, but only to the
extent that the collective would cover former and current workers
employed by the Defendants at the Mont Blanc 52 restaurant, as
salad makers and/or dishwashers, for the period from Dec. 26, 2015
to the present.
In order to effectuate notice to the potential opt-in Plaintiffs:
(1) The Plaintiffs will (a) modify the Proposed Notice and
Consent Form, consistent with the Order, (b) confer with the
Defendants in order to agree on a final version of each form, and
(c) submit final versions (as well any translations) for the
Court's approval no later than two weeks from the date of the
Order;
(2) To facilitate notice to the potential opt-in Plaintiffs,
the Defendants shall, within three weeks of the date of the Order,
disclose to the Plaintiffs' counsel the names, last known mailing
address, alternate address (if any), all known telephone numbers,
and dates of employment at Montafon of all the potential Plaintiffs
within the conditionally certified collective action.
(3) Upon the Court's approval of the modified notice, the
Plaintiffs' counsel may arrange to have it disseminated via mail,
in English and Spanish, to all potential members of the collective;
and
(4) At the same time that the notice is disseminated by the
Plaintiffs' counsel, the Defendants will post a copy of the notice,
in English and Spanish, at the Mont Blanc 52 restaurant in a
conspicuous and unobstructed location or locations likely to be
seen by all currently employed members of the collective, and the
notice will remain so posted throughout the opt-in period.
A full-text copy of the Court's July 15, 2020 Memorandum is
available at https://is.gd/fcEWam from Leagle.com.
NEON THERAPEUTICS: Marks Ordered to File Class Suit Notice on ECF
-----------------------------------------------------------------
In the case, JOHN MARKS, individually and on behalf of all others
similarly situated, Plaintiff, v. NEON THERAPEUTICS, INC., CARY
PFEFFER, ROBERT BAZEMORE, ROBERT KAMEN, ERIC LANDER, HUGH O'DOWD,
STEPHEN SHERWIN, ROBERT TEPPER, and MERYL ZAUSNER, Defendants, Case
No. 20-CV-3033 (RA) (S.D. N.Y.), Judge Ronnie Abrams of the U.S.
District Court for the Southern District of New York ordered the
Plaintiff to promptly file a copy of the class notice on ECF.
On April 15, 2020, the Plaintiff filed a class action lawsuit on
behalf of public holders of the common stock of Neon Therapeutics.
The complaint alleges violations of Sections 14(a) and 20(a) of the
Securities Exchange Act of 1934.
Section 78u-4(a)(3)(A) of the Private Securities Litigation Reform
Act ("PSLRA") requires that not later than 20 days after the date
on which the complaint is filed, the plaintiff or plaintiffs will
cause to be published, a notice advising members of the purported
plaintiff class - (I) of the pendency of the action, the claims
asserted therein, and the purported class period; and (II) that,
not later than 60 days after the date on which the notice is
published, any member of the purported class may move the court to
serve as lead plaintiff of the purported class.
The PSLRA also requires that not later than 90 days after the date
on which notice is published, the Court will consider any motion
made by a purported class member in response to the notice, and
will appoint as lead plaintiff the member or members of the
purported plaintiff class that the Court determines to be most
capable of adequately representing the interests of the class
members. In the event that more than one action on behalf of a
class asserting substantially the same claim or claims has been
filed, and any party has sought to consolidate those actions for
pretrial purposes or for trial, the Court will not appoint a lead
plaintiff until after a decision on the motion to consolidate is
rendered.
Judge Abrams ordered the Plaintiff to promptly file a copy of the
notice on ECF. The members of the purported class will have until
60 days from the Plaintiff's publishing of the required notice to
move the Court to serve as lead plaintiffs. Once the Plaintiff has
provided the Court with a copy of its notice, the Court will set a
conference to consider any motions for appointment of lead
plaintiff and lead counsel and for consolidation. That conference
will be held within 90 days of the notice's publication. Upon
scheduling the conference, the Court will also set a deadline for
the service and filing of the oppositions to any motion for
appointment of lead plaintiff.
The Plaintiff will promptly serve a copy of the Order on each of
the Defendants.
A full-text copy of the District Court's May 29, 2020 Order is
available at https://is.gd/qyxbRq from Leagle.com.
NINGBO SUNNY: Court Grants in Part Orion's Request for Sanctions
----------------------------------------------------------------
The U.S. District Court for the Northern District of California,
San Jose Division, issued an order granting in part and denying in
part the Plaintiff's Motion for Sanctions in the case captioned
OPTRONIC TECHNOLOGIES, INC. v. NINGBO SUNNY ELECTRONIC CO., LTD.,
et al., Case No. 16-cv-06370-EJD (VKD) (N.D. Cal.).
Plaintiff Optronic Technologies, Inc. (Orion) seeks sanctions
pursuant to Rule 26(g) of the Federal Rules of Civil Procedure
against Defendant Ningbo Sunny Electronic Co., Ltd. (Ningbo Sunny)
and its counsel Sheppard, Mullin, Richter & Hampton LLP ("Sheppard
Mullin"). The conduct for which Orion seeks sanctions concerns
Ningbo Sunny's written responses to Orion's post-judgment document
requests and one post-judgment interrogatory. After the presiding
judge entered judgment in Orion's favor on its antitrust claims,
Orion served document requests and interrogatories on Ningbo Sunny
seeking discovery directed to enforcement of the judgment.
Orion moves for sanctions based on alleged violations of the
attorney certification requirements of Rule 26(g). Orion argues
that by signing Ningbo Sunny's responses to Orion's interrogatories
and document requests, Sheppard Mullin falsely certified that those
responses were complete and correct at the time they were made.
With respect to Ningbo Sunny's response to Interrogatory No. 4,
Orion argues that counsel's certification of the original response
to the interrogatory was intentionally false because the
supplemental response includes repeated substantive communications
between Ningbo Sunny's lawyers and lawyers for the Synta Entities
that are not merely information or status updates about the case.
With respect to Ningbo Sunny's responses to document requests,
Orion argues that counsel improperly certified as truthful and
accurate Ningbo Sunny's representations that it would produce all
responsive documents.
The Court notes that the problem with these arguments is that Orion
relies on subsection (1)(A) of Rule 26(g), which applies only to
initial disclosures under Rule 26(a)(1) and pretrial disclosures
under Rule 26(a)(3). Rule 26(g)(1)(A) requires counsel to certify
with respect to a disclosure that the disclosure is complete and
correct as of the time it is made. The Court says this subsection
does not apply to discovery responses, which are governed by
subsection (1)(B).
Accordingly, the Court denies Orion's motion for an award of
sanctions for alleged violation of the certification of
completeness and correctness required for disclosures under Rule
26(g)(1)(A).
As the Court finds no violation of Rule 26(g)(1)(B), the Court
denies Orion's motion for sanctions with respect to counsel's
certification of Ningbo Sunny's response to Interrogatory No. 4. As
to Orion's request for sanctions under Rule 26(g)(3), the Court
concludes that Sheppard Mullin has not offered a substantial
justification for the certification violation and that sanctions
are warranted.
The Court orders Ningbo Sunny's new counsel of record to undertake
an independent effort to ensure that Ningbo Sunny fully complies
with Orion's post-judgment document requests. Specifically, Ningbo
Sunny must redo, with the direction and supervision of counsel, its
collection, review, and production of responsive documents.
In addition, the Court finds that monetary sanctions are
appropriate to compensate Orion for the attorneys' fees and costs
it incurred with respect to, among other things, preparing the
portion of the joint discovery dispute letter directed to Ningbo
Sunny's failure to comply with its obligations to produce
responsive documents.
A full-text copy of the District Court's June 1, 2020 Order is
available at https://tinyurl.com/y75yxrbd from Leagle.com.
OUTLAW LABORATORIES: Tauler Smith Must Provide Further Responses
----------------------------------------------------------------
The U.S. District Court for the Southern District of California
issued an Order granting Stores' Motion to Compel Further Responses
to Interrogatories and Document Requests from Tauler Smith in the
case captioned IN RE: OUTLAW LABORATORIES, LP LITIGATION, Case No.
18CV840 GPC (BGS) (S.D. Cal.).
Counter-claimant Roma Mikha and Third-Party Plaintiff NMRM, Inc.
and Skyline Market, Inc. (collectively the "Stores") and
Third-Party Defendant Tauler Smith ("Tauler Smith") have raised a
discovery dispute with the Court. On May 11, 2020, the parties
submitted a Joint Letter Brief explaining the dispute and each
party's position on the dispute.
The Stores have alleged counterclaims under the Racketeer
Influenced and Corrupt Organizations Act (RICO) and a recession
claim on behalf of themselves and a class of similarly situated
stores. The Stores allege that Outlaw, Outlaw's former attorneys
Tauler Smith, and Outlaw's principals, Michael Wear and Shawn
Lynch, have engaged in a scheme that includes using investigators
to collect information to target small businesses with demand
letters sent via U.S. mail. The demand letters threaten the Stores
will be held liable for over $100,000 based on false and misleading
statements, including about potential liability under RICO and the
Lanham Act for the sale of certain products by the stores with
follow up communications offering to settle for increasingly lower
amounts, including as low as $2,500.
The Stores seek to bring these claims on behalf of a Store Class
and three subclasses: stores that were sued; stores that were
threatened; and stores that paid a settlement to encompass the
three different outcomes that have resulted. The Stores also assert
a claim for rescission on behalf of Skyline Market and the class to
rescind the settlement agreements entered into with Outlaw.
The Stores seek to compel further responses to interrogatories and
document requests from Tauler Smith. In response, Tauler Smith
argues both that is has sufficiently responded to the requests and
that it is not required to respond because class discovery has
closed.
The Court note that Tauler Smith, in the present dispute, argues
that because the March 17, 2020 class discovery deadline passed
while this prior dispute was pending, it is now not required to
respond to these same discovery requests. This argument has no
merit, Magistrate Judge Bernard G. Skomal opines, adding that
Tauler Smith's position is both illogical and contrary to the
Court's Chambers Rules.
Accordingly, the Court rules that Tauler Smith must respond to
interrogatories and document requests. Any discovery disputes
arising from these responses, or lack thereof by the deadline, must
be raised, or those disputes will be waived and the Court will not
address them.
A full-text copy of the District Court's June 1, 2020 Order is
available at https://tinyurl.com/ydxnqrof from Leagle.com
OWLET BABY: Wins Bid to Dismiss Smart Sock Claims in Ruiz Suit
--------------------------------------------------------------
The U.S. District Court for the District of Utah issued a
Memorandum Decision and Order granting in part and denying in part
the Defendant's Motion to Dismiss in the case captioned Amanda Ruiz
and Marisela Arreola v. Owlet Baby Care, Inc., Case No.
2:19-cv-00252 (D. Utah).
The Defendant sells the "Owlet Smart Sock" and the "Owlet Smart
Sock 2" (collectively the "Smart Sock"). The Smart Sock "uses pulse
oximetry technology" that "has been miniaturized[,] made wireless,"
and incorporated into a sock that can be placed on a baby's foot.
It is intended to "track a baby's heart rate and oxygen levels" and
to "notify parents if those levels fall outside the preset zone."
The Plaintiffs allege that the Smart Sock is inaccurate, fails to
detect and notify parents of their child's abnormal vital signs,
and gives false alarms. The Plaintiffs assert five causes of action
against Defendant on behalf of themselves and the proposed class.
Plaintiffs assert that Defendant violated California's Consumer
Legal Remedies Act and California's Unfair Competition Law. The
Plaintiffs further assert that the Defendant breached the implied
warranty of merchantability under California's Song-Beverly
Consumer Warranty Act and the federal Magnuson-Moss Warranty Act.
Finally, the Plaintiffs assert a claim for unjust enrichment.
According to the Memorandum Decision and Order, beyond the
vagueness and inconsistency with which the Plaintiffs describe the
incidence of these issues, the Plaintiffs fail to allege sufficient
factual content to support a reasonable inference that this
incidence is (1) different from what a reasonable consumer would
expect from a pulse oximeter and (2) indicative of a defect such
that the Smart Sock is not fit for its ordinary use.
The Plaintiffs also fail, among other things, to allege sufficient
factual enhancement to provide plausible support for their naked
assertion of materiality. For instance, the Plaintiffs fail to
allege facts regarding the accuracy and reliability a reasonable
consumer would expect from a comparable pulse oximeter, as well as
how, if at all, that expectation differs from what the Plaintiffs
contend the Defendant should have disclosed about the accuracy and
reliability of its Smart Sock.
Finally, the Court rejects the Defendant's argument that the
Plaintiffs' claims should be dismissed without leave to amend. The
Court concludes that the Plaintiffs may be able to amend their
Complaint to allege sufficient factual matter to plausibly support
their claims.
Hence, the Defendant's motion to dismiss is GRANTED IN PART and
DENIED IN PART. All of the Plaintiffs' claims are DISMISSED WITH
LEAVE TO AMEND. If the Plaintiffs fail to seek leave to amend
within 30 days, their claims will be dismissed with prejudice.
A full-text copy of the District Court's June 1, 2020 Memorandum
Decision and Order is available at https://tinyurl.com/y7je3klc
from Leagle.com.
PIPELINE HEALTH: Bid to Dismiss Pechulis WARN-IWPCA Suit Denied
---------------------------------------------------------------
In the case, SHELLYE PECHULIS, et. al., Plaintiffs, v. PIPELINE
HEALTH SYSTEMS LLC, Defendant, Case No. 19-cv-06089 (N.D. Cal.),
Judge Sharon Johnson Coleman of the U.S. District Court for the
Northern District of Illinois, Eastern Division, denied Pipeline
Health's motion to dismiss the complaint in its entirety pursuant
to Federal Rule of Civil Procedure 12(b)(6).
Plaintiffs Pechulis, Anna Marie Falcone, and Jodie Holich filed a
first amended class action complaint ("complaint") against
Defendant Pipeline Health. The Plaintiffs brought a claim for
violation of the Federal Worker Adjustment and Retraining
Notification Act ("WARN") Act on behalf of plaintiffs and the
putative WARN Act class and a claim for violation of the Illinois
Wage Payment and Collection Act ("IWPCA") on behalf of the
Plaintiffs Falcone and Holich and the putative IWPCA class.
Defendant Pipeline Health is a privately-held investment company
based in El Segundo, California. In June 2018, it purchased a
portfolio of three hospitals, including Westlake Hospital, which it
planned to close as soon as the transaction was complete. On Sept.
6, 2018, Pipeline Health submitted an application to the Illinois
Health Facilities and Services Review Board seeking permission to
purchase the Hospital, as required by the Illinois Health
Facilities Planning Act.
The application required the purchasing entity to swear under
penalty of perjury that it would maintain the same "charity care
policy" already in place at the Hospital for a two-year period
following the change of ownership transaction. Given the
requirement that it not close the hospital, Pipeline Health's
solution was to create two shell companies -- Pipeline-Westlake and
SRC Hospital Investments II LLC ("SRC")--that it would use to
purchase and quickly close the hospital.
According to the Sept. 6, 2018 application, if approved, the
Hospital would be owned and operated by SRC and its wholly-owned
subsidiary, Pipeline-Westlake. The application was signed by
Pipeline Health's President, Nicholas Orzano, in his capacity as
Chief Executive Officer of both SRC and Pipeline-Westlake.
On Jan. 31, 2019, Pipeline Health moved forward with the purchase
of the Hospital and filed its application to close the Hospital
with the Review Board on Feb. 21, 2019. Pipeline Health President
Orzano again signed the application in his capacity as Chief
Executive Officer of both SRC and Pipeline-Westlake.
On April 30, 2019, the Review Board granted Pipeline Health's
application to close the Hospital. On May 2, 2019, Melrose Park
filed an action challenging the Review Board's decision to approve
the application to close the Hospital, along with an emergency
motion to stay the Review Board's decision. On May 7, 2019, the
Circuit Court of Cook County granted the motion to stay and ordered
Pipeline-Westlake and SRC to keep the Hospital open pending
adjudication of the action.
On Aug. 6, 2019, Pipeline Health directed Pipeline-Westlake to file
for Chapter 7 bankruptcy in the United States Bankruptcy Court for
the District of Delaware. Pipeline-Westlake filed a Chapter 7
bankruptcy petition with the U.S. Bankruptcy Court for the District
of Delaware and the Delaware Bankruptcy Court appointed a Chapter 7
Trustee. The Trustee was authorized and directed to: discharge
and/or transfer the current patients in the Hospital to another
accepting health care facility subject to 11 U.S.C. Section
704(a)(12); retain employees as long as necessary and/or terminate
employees in accordance with its business judgment; terminate such
utilities as it determines are no longer necessary; and secure the
Hospital facility.
On Aug. 19, 2019, the Trustee notified 549 Hospital employees,
including the Plaintiffs, that their positions were terminated
effective Aug. 16, 2019. The notification was silent as to any
repayment of paid time off and vacation time.
Plaintiff Pechulis is a resident of Cook County, Illinois who
worked for the Hospital as a Night Shift Charge Nurse from 2013
until she received a letter from the bankruptcy trustee on Aug. 19,
2019 stating that she was terminated, effective Aug. 16, 2019.
Plaintiff Falcone is a resident of Cook County, Illinois who worked
at the Hospital as a Unit Secretary from 1985 until she received a
letter from the bankruptcy trustee on Aug. 19, 2019 stating that
she was terminated, effective Aug. 16, 2019. At the time of her
termination, Plaintiff Falcone had accrued paid time off and
vacation days for which she did not receive any payment.
Plaintiff Holich is a resident of Cook County, Illinois who worked
at the Hospital as a Registered Nurse from 2015 until she received
a letter from the bankruptcy trustee on August 19, 2019 stating
that she was terminated, effective Aug. 16, 2019. At the time of
her termination, Plaintiff Holich had accrued paid time off and
vacation days for which she did not receive any payment.
The Plaintiffs filed a first amended class action complaint against
Pipeline Health on Nov. 29, 2019. They brought a claim for
violation of the WARN Act on behalf of the Plaintiffs and the
putative WARN Act class and a claim for violation of the IWPCA on
behalf of Plaintiffs Falcone and Holich and the putative IWPCA
class.
Pipeline now moves to dismiss the complaint in its entirety
pursuant to Federal Rule of Civil Procedure 12(b)(6). The
Defendant moves to dismiss the Plaintiff's WARN Act claim against
it for a number of reasons including that it was not responsible
for the decision to terminate, it does not qualify as an employer,
and it did provide proper notice. The Plaintiffs allege that the
Defendant is liable under the WARN Act because it did not provide
them with required notice prior to knowingly terminating their
employment by making the decision that Pipeline-Westlake would file
for Chapter 7 bankruptcy.
Judge Coleman (i) finds that the Plaintiff's allegations are
sufficient to get through the motion to dismiss stage; (ii) finds
that the Defendant's reliance on cases involving the liquidating
fiduciary exception to support its argument are unavailing; (iii)
finds that the Plaintiff has properly alleged a violation; and (iv)
rejects Pipeline Health's attempt to use the state court injunction
as a shield from the notice requirement.
The Defendant next moves for dismissal of the Plaintiffs' claims
under the IWPCA. The Plaintiffs allege that Pipeline Health
violated the IWPCA when it did not pay out their accrued paid time
off and/or vacation time pursuant to and in accordance with their
employment agreements and policies implemented at the Hospital.
The Judge finds that (i) given the level of detail in the
Plaintiffs' complaint, she will allow them to move forward with
their IWPCA claim; and (ii) the Defendants' argument that the
Plaintiffs have failed to allege that Pipeline Health "knowingly
permitted" a violation of the IWPCA is irrelevant.
Finally, the Defendant argues that the Plaintiff's claims are
preempted by the U.S. Bankruptcy Code because they are
post-petition claims against a debtor. As she has already noted,
Judge Coleman holds that the Plaintiffs' claims are not against the
Hospital, SRC, or Pipeline-Westlake. The have brought claims
against Pipeline Health, which they have alleged is their
"employer" under the IWPCA. Because Pipeline Health has not filed
for bankruptcy, its preemption argument is not relevant.
Accordingly, the motion to dismiss is denied.
Based on the foregoing, Judge Coleman denied the Pipeline Health's
motion to Dismiss.
A full-text copy of the Court's July 15, 2020 Memorandum Opinion &
Order is available at https://is.gd/4nBFTm from Leagle.com.
POLARIS INC: 8th Cir. Agrees to Hear Appeal in Johannessohn Suit
----------------------------------------------------------------
Polaris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 28, 2020 for the quarterly period
ended June 30, 2020, that the United States Court of Appeals for
the Eighth Circuit has agreed to hear plaintiffs' appeal from a
lower court ruling denying class certification in the matter, Riley
Johannessohn, Daniel Badilla, James Kelley, Kevin Wonders, William
Bates and James Pinion, individually and on behalf of all others
similarly situated v. Polaris Industries (D. Minn.).
A putative class action is pending in the United States District
Court for the District of Minnesota and alleges excessive heat
hazards on Sportsman ATV, seeking damages for alleged economic
loss: Riley Johannessohn, Daniel Badilla, James Kelley, Kevin
Wonders, William Bates and James Pinion, individually and on behalf
of all others similarly situated v. Polaris Industries (D. Minn.),
October 4, 2016.
On March 31, 2020, the district court judge denied class
certification.
The Eighth Circuit has agreed to hear plaintiffs' appeal.
Polaris Inc. is an American manufacturer of motorcycles,
snowmobiles, ATV, and neighborhood electric vehicles. Polaris was
founded in Roseau, Minnesota, USA, where it still has engineering
and manufacturing. The company's corporate headquarters is in
Medina, Minnesota. The company manufactured motorcycles through its
Victory Motorcycles subsidiary until January 2017, and currently
produces motorcycles through the Indian Motorcycle subsidiary,
which it purchased in April 2011. Polaris produced personal
watercraft from 1994-2004. The company was originally named Polaris
Industries Inc. and was renamed in 2019 to Polaris Inc.
POLARIS INC: Appeal in Sales & Product Liability Suit Pending
-------------------------------------------------------------
Polaris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 28, 2020 for the quarterly period
ended June 30, 2020, that the appeal in the putative class action
suit entitled, In re Polaris Marketing, Sales Practices, and
Product Liability Litigation (D. Minn.), is pending.
A putative class action is pending in the United States District
Court for the District of Minnesota and arises out of allegations
that certain Polaris products suffer from purportedly unresolved
fire hazards allegedly resulting in economic loss, and is the
result of the consolidation of the three putative class actions
that were filed between April 5-10, 2018 and that the company
disclosed in its Quarterly Report on Form 10-Q for the period ended
March 31, 2018: In re Polaris Marketing, Sales Practices, and
Product Liability Litigation (D. Minn.), June 15, 2018.
On February 26, 2020, the district court dismissed the majority of
plaintiffs and claims.
Plaintiffs subsequently voluntarily dismissed the remaining
plaintiffs and are pursuing an appeal on behalf of the dismissed
plaintiffs.
Polaris Inc. is an American manufacturer of motorcycles,
snowmobiles, ATV, and neighborhood electric vehicles. Polaris was
founded in Roseau, Minnesota, USA, where it still has engineering
and manufacturing. The company's corporate headquarters is in
Medina, Minnesota. The company manufactured motorcycles through its
Victory Motorcycles subsidiary until January 2017, and currently
produces motorcycles through the Indian Motorcycle subsidiary,
which it purchased in April 2011. Polaris produced personal
watercraft from 1994-2004. The company was originally named Polaris
Industries Inc. and was renamed in 2019 to Polaris Inc.
POLARIS INC: Discovery Underway in Guzman and Albright Class Suit
-----------------------------------------------------------------
Polaris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 28, 2020 for the quarterly period
ended June 30, 2020, that the putative class action suit entitled,
Paul Guzman and Jeremy Albright v. Polaris Inc., Polaris Industries
Inc., and Polaris Sales Inc., is in the early stages of discovery
and procedural scheduling.
A putative class action is pending in the United States District
Court for the Central District of California and alleges violations
of various California consumer protection laws focused on rollover
protection systems' certifications, for various Polaris off-road
vehicles sold in California: Paul Guzman and Jeremy Albright v.
Polaris Inc., Polaris Industries Inc., and Polaris Sales Inc.,
August 8, 2019.
The case is in the early stages of discovery and procedural
scheduling.
Polaris Inc. is an American manufacturer of motorcycles,
snowmobiles, ATV, and neighborhood electric vehicles. Polaris was
founded in Roseau, Minnesota, USA, where it still has engineering
and manufacturing. The company's corporate headquarters is in
Medina, Minnesota. The company manufactured motorcycles through its
Victory Motorcycles subsidiary until January 2017, and currently
produces motorcycles through the Indian Motorcycle subsidiary,
which it purchased in April 2011. Polaris produced personal
watercraft from 1994-2004. The company was originally named Polaris
Industries Inc. and was renamed in 2019 to Polaris Inc.
PPG INDUSTRIES: Stipulated Protective Order Entered in Castro Suit
------------------------------------------------------------------
Magistrate Judge Michael R. Wilner of the U.S. District Court for
the Central District of California has entered the parties'
Stipulated Protective Order in the case, ROGELIO CASTRO,
individually, and on behalf of other members of the general public
similarly situated Plaintiff, v. PPG INDUSTRIES, INC., a
Pennsylvania corporation; SIERRACIN/SYLMAR CORPORATION, a
California corporation; SIERRACIN CORPORATION, a Delaware
corporation; and DOES 1 through 10, inclusive, Defendants, Case No.
2:20-cv-02110-PA-(MRWx) (C.D. Cal.).
Discovery in the putative class action is likely to involve
production of confidential, proprietary, or private information for
which special protection from public disclosure and from use for
any purpose other than prosecuting the litigation may be warranted.
Accordingly, the parties stipulate to and petition the Court to
enter the Stipulated Protective Order.
The protections conferred by the Stipulation and Order cover not
only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. Any use of Protected
Material at trial will be governed by the orders of the trial
judge. The Order does not govern the use of Protected Material at
trial.
Even after final disposition of the litigation, the confidentiality
obligations imposed by the Order will remain in effect until a
Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition will be deemed to be the
later of (1) dismissal of all claims and defenses in the Action,
with or without prejudice: and (2) final judgment herein after the
completion and exhaustion of all appeals, rehearings, remands,
trials, or reviews of the Action, including the time limits for
filing any motions or applications for extension of time pursuant
to applicable law.
Any Party or Non-Party may challenge a designation of
confidentiality at any time that is consistent with the Court's
Scheduling Order.
After the final disposition of the Action, within 60 days of a
written request by the Designating Party, each Receiving Party must
return all Protected Material to the Producing Party or destroy
such material.
Any violation of the Order may be punished by appropriate measures
including, without limitation, civil or criminal contempt
proceedings, monetary or evidentiary sanctions, reference to
disciplinary authorities, or other appropriate action at the
discretion of the Court.
A full-text copy of the Stipulated Protective Order signed by the
Court on July 15, 2020, is available at https://is.gd/LVRbfL from
Leagle.com.
BEVIN ALLEN PIKE -- Bevin.Pike@CapstoneLawyers.com -- ORLANDO
VILLALBA, JOSEPH HAKAKIAN, Capstone Law APC, Los Angeles,
California, Attorneys for Plaintiff Rogelio Castro.
CARLOS JIMENEZ -- cajimenez@littler.com -- LITTLER MENDELSON, P.C.,
Los Angeles, CA, Additional Counsel of Record Continued on
Following Page.
MAGGY M. ATHANASIOUS -- mathanasious@littler.com -- LITTLER
MENDELSON, P.C., Los Angeles, CA.
LINDA N. BOLLINGER -- lbollinger@littler.com -- LITTLER MENDELSON,
P.C., San Jose, CA, Attorneys for Defendants, PPG INDUSTRIES INC.,
SIERRACIN/SYLMAR CORPORATION, and SIERRACIN CORPORATION.
PRECISION DRILLING: Court Denies Bill of Costs in Tyger FLSA Suit
-----------------------------------------------------------------
In the case, RODNEY TYGER, et al., Plaintiffs, v. PRECISION
DRILLING CORP., et al., Defendants, Case No. 4:11-CV-01913 (M.D.
Pa.), Judge Matthew W. Brann of the U.S. District Court for the
Middle District of Pennsylvania denied the Defendants' bill of
costs.
The Plaintiffs' Amended Complaint asserted one "major claim" -- a
failure to pay overtime compensation as provided by the Fair Labor
Standards Act (FLSA). The Plaintiffs asserted that they were due
compensation for three periods of overtime: (1) hours they spent
donning and doffing PPE; (2) hours attending safety meetings; and
(3) hours walking between particular locations on the worksite.
The parties settled on compensation for the second of the three
periods -- the one concerning safety meetings -- on Oct. 16, 2019.
The agreement provided that the Plaintiffs would receive $410,000.
The Court approved the parties' settlement on Oct. 17, 2019.
On Dec. 17, 2019, Judge Brann granted the Defendants' motions for
partial summary judgment on the other two periods concerning
donning and doffing and walking between particular locations. The
Plaintiffs have appealed that December 2019 decision to the U.S.
Court of Appeals for the Third Circuit.
On Jan. 15, 2020, the Defendants submitted their bill of costs.
The parties submitted letters, and then briefs, on the issue of
whether the Court should grant the Defendants' bill of costs.
Having considered the parties' written and oral arguments, Judge
Brann finds that the Defendants are not the prevailing party. The
Plaintiffs have achieved a settlement of hundreds of thousands of
dollars. Even taking into account the high number of Plaintiffs in
the class action, it still amounts to hundreds of dollars per
individual Plaintiff. The Judge cannot find that the Plaintiffs
have achieved only "limited pre-trial success" that is overall
"insignificant," and he likewise cannot find that the Defendants
have had judgment entered on all their "major claims." The Judge
has ordered enforcement of the parties' settlement. His order
"materially altered the legal relationship between the parties" by
enforcing the parties' agreement and requiring payment.
The Defendants claim the case is akin to the Third Circuit's
decision in Tyler v. O'Neill. Judge Brann respectfully disagrees.
In Tyler, the plaintiff's "major claims" were for alleged breach of
fiduciary duty, fraud, and RICO violations. He proceeded to trial
seeking in excess of one million dollars. Before trial, the
plaintiff had settled a claim for wages owed, under Pennsylvania's
Wage Payment and Collection Law, for $5,000. In Tyler, the
plaintiff's return was much smaller, and the plaintiff's settlement
resolved one peripheral claim. As he explained, the case is
distinguishable, as it involves an aspect of the Plaintiffs'
central claim settling for hundreds of thousands of dollars.
The case is more akin to AMA Realty LLC v. 9440 Fairview Ave. LLC.
In that case, the plaintiff, who had pleaded nine claims
originally, received "prevailing party" status after receiving a
verdict of over $1.2 million on its breach of contract claim. It
is also more akin to Morris v. Consol. Rail Corp., where a
plaintiff received "prevailing party" status after succeeding on
only one of its five claims and getting a verdict of only $500.
In light of the foregoing, Judge Brann denied the Defendants' bill
of costs.
A full-text copy of the District Court's May 29, 2020 Memorandum
Opinion is available at https://is.gd/MBmYgq from Leagle.com.
PROGRESSIVE DIRECT: Can't Compel Vehicle Loss Appraisal in Stanikzy
-------------------------------------------------------------------
In the case, AMEENJOHN STANIKZY; Plaintiff, v. PROGRESSIVE DIRECT
INSURANCE COMPANY, Defendant, Case No. 2:20-cv-118 BJR (W.D.
Wash.), Judge Barbara Jacobs Rothstein of the U.S. District Court
for the Western District of Washington, Seattle, denied
Progressive's Motion to Compel Appraisal and to Stay Proceedings.
The proposed class action brings breach-of-contract and Washington
Consumer Protection Act claims against Defendant Progressive.
Plaintiff Stanizky challenges Progressive's method of calculating
the value of vehicles deemed a total loss under certain auto
insurance policies.
Plaintiff Stanizky purchased an auto insurance policy issued by
Progressive. He alleges that on Oct. 9, 2019, he was involved in a
collision, resulting in damage to his car. He reported his claim
to Progressive, which deemed Stanizky's automobile a total loss.
Progressive ultimately determined that the actual cash value of
Stanizky's vehicle was $8,006.30.
According to the Plaintiff, the Mitchell Market Survey Report
("MSR"), on which Progressive relies for vehicle valuation,
determines the actual cash value ("ACV") of totaled vehicles by
averaging the "adjusted values" of purportedly comparable vehicles.
Adjusted values of the comp vehicles, in turn, are determined
based on their list price, as adjusted by (among other things) a
projected sold adjustment ("PSA"). A PSA is a downward adjustment
to the list price expected in a typical negotiated sale --
essentially, according to the MSR, an adjustment to reflect
consumer purchasing behavior. In Stanizky's case, the MSR reflects
a reduction to the list prices of the two comp vehicles by PSAs of,
respectively, $1,109.40 and $908. Stanizky therefore claims that
his settlement was reduced by the average of these amounts, or
$1,008.70.
By the putative class action lawsuit, the Plaintiff challenges both
Progressive's right to make the adjustment, and how that adjustment
is made. Plaintiff claims that the practice violates WAC Section
284-30-391(4), which enumerates what adjustments an insurer may
make.
Specifically, the regulation provides that an insurer must base all
offers on itemized and verifiable dollar amounts using appropriate
deductions or additions for options, mileage or condition when
determining comparability. The Plaintiff asserts that the
projected sold adjustments applied to his comp vehicles are neither
itemized nor verifiable, and that the law does not permit
adjustments other than those explicitly set out in the regulations
(e.g., for mileage, condition, and, elsewhere in the regulations,
unrepaired damage). He further claims that how the amount is
determined -- the "black box" method of calculating the projected
sold adjustment -- violates Washington law, which limits what data
an insurer may use in valuing a total loss vehicle.
The immediate issue before the Court is Progressive's Motion to
Compel Appraisal and to Stay Proceedings, seeking an order
compelling Stanizky to participate in the appraisal process for his
total loss vehicle, outlined in his Progressive auto insurance
policy, and a stay of the case pending the conclusion of that
appraisal.
Judge Rothstein concludes that it is not a dispute over whether the
calculated average of the comp vehicles' PSAs should be some amount
other than $1008.70; as the Plaintiff notes, neither party claims
that anything about this sum is incorrect. Instead, the gravamen
of the lawsuit is whether Progressive may legally make the
adjustments at all. Indeed, there is no claim that an appraiser
would -- or even could -- choose not to take a PSA deduction from
the list prices of the comparable vehicles. Unless it did so, the
appraisal would not obviate Stanizky's claim that any projected
sold adjustment is illegal.
As Progressive itself notes, an appraisal will not determine
whether Progressive breached the policy (Count I of the Amended
Complaint) or violated the Washington Consumer Protection Act
(Count II), and it will not decide if Plaintiff is entitled to
declaratory or injunctive relief (Counts III and IV). An appraisal
would therefore be an empty exercise, at least for purposes of the
lawsuit.
The conclusion conforms to other courts' interpretations of the
appropriate role of the appraisal process in the insurance context,
where the dispute is over a contract term, not the insurer's
valuation of the loss. A compelled appraisal and stay would
therefore do nothing to advance the lawsuit towards its
conclusion.
For the foregoing reasons, Judge Rothstein denied the Defendant's
Motion to Compel Appraisal and for Stay of Proceedings.
A full-text copy of the District Court's May 29, 2020 Order is
available at https://is.gd/oglL2U from Leagle.com.
QUTEN RESEARCH: Barton Sues over Misleading Qunol Health Products
-----------------------------------------------------------------
DEBORAH BARTON, individually and on behalf of all others similarly
situated, Plaintiff v. QUTEN RESEARCH INSTITUTE, LLC, Defendant,
Case No. 2:20-at-00686 (E.D. Cal., July 9, 2020) alleges that the
Defendant mislead consumers in the sale of its Qunol health
products with the ingredient coenzyme Q10 ("CoQ10").
The Plaintiff alleges in the complaint that Quten deceives
consumers with extravagant and false claims about the potency and
supposed benefits of the Qunol products. Specifically, Quten
advertises its Qunol products with the claims; "1 Cardiologist
Recommended," "3x Better Absorption," "Pharmaceutical Grade," and
"Clinical Strength." Quten also claims its Qunol products support
"heart and vascular health," promote "healthy blood pressure
levels," and are "essential for energy production." All of that is
false. CoQ10 achieves saturation levels in the human body
naturally, and thus the vast majority of people who take CoQ10
receive no benefit from it. Even for those rare people with CoQ10
deficiencies who might benefit from supplementation, the levels of
CoQ10 in Quten's Qunol products are far too low to have any
beneficial effect.
Quten Research Institute, LLC is a New Jersey Limited Liability.
The Company produces, markets, and distributes various nutritional
supplement products through its website and in retail stores across
the United States. [BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Joel D. Smith, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
jsmith@bursor.com
- and -
Nick Suciu, Esq.
BARBAT MANSOUR SUCIU & TOMINA PLLC
1644 Bracken Rd.
Bloomfield Hills, MI 48302
Telephone: (313) 303-3472
E-mail: nicksuciu@bmslawyers.com
RATER8 LLC: Faces Wilson TCPA Suit Over Unsolicited Text Messages
-----------------------------------------------------------------
Robert Wilson, for himself and all others similarly situated v.
RATER8, LLC, a Delaware Limited Liability Company; SAN DIEGO
ORTHOPAEDIC ASSOCIATES MEDICAL GROUP, a California Corporation;
LARRY D. DODGE, M.D., INC., A California Corporation, Case No.
3:20-cv-01515-DMS-LL (S.D. Cal., Aug. 6, 2020), is brought for the
Defendants' violation of the Telephone Consumer Protection Act and
for their unlawful business practice that violates the California
Business & Professions Code.
According to the complaint, the Plaintiff received an unsolicited
text message to his personal cellular telephone number. The
Plaintiff did not give the Defendants or any of them prior express
consent to receiving text messages to his personal cellular
telephone. Moreover, the Plaintiff did not provide his personal
cellular telephone number to any of the Defendants. At no time did
the Plaintiff provide Defendants SDOAMG and/or DR. DODGE with his
cellular telephone number nor did he give prior express consent to
SDOAMG or DR. DIDGE to give any telephone number belonging to the
Plaintiff, including his cellular telephone number ending to
co-Defendant RATER8.
The Plaintiff is an individual and a resident of San Diego County,
California.
RATER8 is in the business of providing "Healthcare Reputation
Management," including managing patient satisfaction surveys.[BN]
The Plaintiff is represented by:
Patrick N. Keegan, Esq.
KEEGAN & BAKER, LLP
2292 Faraday Avenue, Suite 100
Carlsbad, CA 92008
Phone: (760) 929-9303
Facsimile: (760) 929-9260
Email: pkeegan@keeganbaker.com
- and -
Robert A. Waller, Jr., Esq.
LAW OFFICE OF ROBERT A. WALLER, JR.
P.O. Box 999
Cardiff-by-the-Sea, CA 92007
Phone: (760) 753-3118
Facsimile: (760) 753-3206
Email: robert@robertwallerlaw.com
RAUSCH STURM: Makurat Sues Over Illegal Consumer Debt Collection
----------------------------------------------------------------
KARI MAKURAT, Individually and on Behalf of All Others Similarly
Situated, Plaintiffs, v. RAUSCH STURM ISREAL ENERSON & HORNIK LLP
and ONEMAIN FINANCIAL GROUP LLC, Defendant, Case No. 20-cv-1162
(E.D. Wis., July 28, 2020) is a class action brought by the
Plaintiff, seeking redress for collection practices that violate
the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Section
1692 et seq. and the Wisconsin Consumer Act ("WCA"), Ch. 421-427,
Wis. Stats.
According to the complaint, the Plaintiff is a "consumer" as
defined in the FDCPA, in that Defendant sought to collect from
Plaintiff a debt allegedly incurred for personal, family, or
household purposes.
On or about July 26, 2019, Rausch Sturm, acting on behalf of
OneMain, filed a small claims lawsuit against Plaintiff in
Milwaukee County Circuit Court. A default judgment was entered in
the Small Claims Case on August 22, 2019.
On or about January 29, 2020, Rausch Sturm, acting on behalf of
OneMain, filed an earnings garnishment notice in connection with
the Small Claims Case. The lawsuit states the amount the Defendants
are attempting to garnish in a confusing, misleading, and unfair
manner. It shows the misrepresentation to the unsophisticated
consumer that it is an effective earnings garnishment notice even
though it is misleading and potentially unintelligible as well as
misrepresentation of the degree to which an attorney was involved
in Plaintiff's file and falsely implies to the unsophisticated
consumer that an attorney approved the amounts stated in Exhibit B
as correct.
Rausch Sturm Isreal Enerson & Hornik LLP is a Brookfield,
Wisconsin-based law firm.
OneMain Financial Group, LLC is a debt collection agency
headquartered in Baltimore, Maryland.[BN]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
REXNORD CORP: Claims Bar Date in Zurn Brass Fitting Deal Expires
----------------------------------------------------------------
Rexnord Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 28, 2020 for the
quarterly period ended June 30, 2020, that the deadline to file
claims in the class settlement related to Zurn brass fittings on
the PEX plumbing systems had already expired.
Certain Company subsidiaries were named as defendants in a number
of individual and class action lawsuits in various United States
courts claiming damages due to the alleged failure or anticipated
failure of Zurn brass fittings on the PEX plumbing systems in homes
and other structures.
In fiscal 2013, the Company reached a court-approved agreement to
settle the liability underlying this litigation. The settlement
was designed to resolve, on a national basis, the Company's overall
exposure for both known and unknown claims related to the alleged
failure or anticipated failure of such fittings, subject to the
right of eligible class members to opt-out of the settlement and
pursue their claims independently.
The settlement utilized a seven-year claims fund, which was capped
at $20.0 million, and was funded in installments over the
seven-year period based on claim activity and minimum funding
criteria. The seven-year filing period expired on April 1, 2020.
Any claims after April 1, 2020 are time barred.
The Company expects to make payment on any remaining timely filed
claims and close out the settlement fund.
Rexnord Corporation conducts process and motion control, as well as
water management operations. The Company offers gears, seals,
couplings, industrial and aerospace bearings, special components,
industrial chain, conveying equipment, grade specification
plumbing, water treatment, and waste water control products.
Rexnord serves clients worldwide. The company is based in
Milwaukee, Wisconsin.
RJ REYNOLDS: Fla. Dist. App. Affirms Final Judgment in Rouse Suit
-----------------------------------------------------------------
In the case, R.J. Reynolds Tobacco Company, Appellant, v. Paul E.
Rouse, Appellee, Case No. 3D19-0629 (Fla. Dist. App.), a
three-judge panel of the District Court of Appeal of Florida for
the Third District affirmed the final judgment entered pursuant to
a jury verdict in favor of Rouse.
Rouse sued RJR for strict liability, fraud by concealment,
conspiracy to commit fraudulent concealment, and negligence,
alleging that Rouse, an Engle-class member, had developed coronary
artery disease as a result of his addiction to smoking RJR's
cigarettes. He sought both compensatory and punitive damages, and
the matter proceeded to a jury trial. Like the plaintiffs in the
original Engle litigation, Rouse presented extensive expert
testimony that beginning in the early 1950s and for several decades
thereafter, large tobacco companies in the United States, including
RJR, engaged in a massive disinformation campaign designed to
conceal the health hazards of smoking cigarettes and the addictive
nature of nicotine.
More particularly, in 1953, when the tobacco companies' own
scientific research first revealed that cigarettes caused cancer
and other diseases and that the nicotine in tobacco was addictive,
the tobacco companies bonded together to never reveal that
cigarettes were harmful, and instead, they told the public that
they would undertake an honest effort to determine the truth about
whether there were any negative health consequences of smoking, and
promised to share with the public the results of their
investigation had it revealed that cigarettes caused harm.
Further, not only did the tobacco companies hide information about
the dangers of smoking available to them at that point, they
subsequently started disseminating misleading information regarding
the health effects of cigarettes to plant doubt in people's minds
about whether smoking was indeed adverse to health, while still
encouraging people to smoke through their pervasive marketing
efforts.
As part of the disinformation campaign, the tobacco companies,
including RJR, also aggressively promoted filtered cigarettes,
often using advertisements displaying features of filters as tools
of persuasion, suggesting that filtered cigarettes were safer than
unfiltered cigarettes, even though they knew that filters did
nothing to make cigarettes healthier, as internal filtration was
not possible.
Rouse testified about his personal background and life as a smoker.
Born in 1954, he grew up in Rocky Mount, North Carolina, a small
town where cigarette smoking was so prevalent that the town became
known as the "heart of tobbacoland." Throughout his teen years,
Rouse was exposed to cigarette advertisements on television, radio,
billboards, magazines, and park and bus stop benches. The overall
message he was getting from these advertisements was that smoking
was normal and "everyone was doing it."
Rouse first manifested symptoms of coronary artery disease, chest
pains, in 1995, and eventually underwent triple bypass surgery in
1999. While he had previously made multiple attempts to quit
smoking, he did not actually quit until after his surgery. To
prove his addiction to cigarettes containing nicotine, and that
such addiction was a legal cause of his coronary heart disease,
Rouse presented expert testimony of Dr. Benjamin Toll, an addiction
expert, and Dr. Theodore Feldman, a cardiologist.
Drs. Toll and Feldman had not previously treated Rouse, but
reviewed medical records prepared by Rouse's former treating
physicians. From these medical records, Dr. Toll concluded that
prior to undergoing his bypass surgery, Rouse was a heavy tobacco
user who was repeatedly counseled by his cardiologist and cardiac
surgeon to stop smoking, which was a sign of addiction. Dr.
Feldman used the records to conclude that Rouse's history of
smoking was "by far and away the most significant risk factor"
leading to his coronary artery disease. Dr. Feldman also concluded
that Rouse's heart disease manifested before the Engle-class period
closed on Nov. 21, 1996, as the records reflected that Rouse had
suffered from angina pectoris since 1995.
At the close of Rouse's case-in-chief, RJR moved for a directed
verdict on the conspiracy claim, arguing that Rouse failed to show
reliance on a specific false or misleading statement made by RJR or
any other Engle defendant in furtherance of their agreement to
conceal or omit information regarding the health effects of
cigarettes or their addictive nature. The trial court denied the
motion based on the First District Court of Appeal's decision in
R.J. Reynolds Tobacco Co. v. Martin, which held that an
Engle-progeny plaintiff can prove reliance by showing that the
smoker was exposed to the tobacco companies' broad scope of
pervasive misleading advertisements.
The jury found that Rouse qualified as a member of the Engle class,
returned a verdict in his favor on his conspiracy claim, and
awarded him $5 million in compensatory damages. Further, the jury
found that the punitive damages were warranted and awarded Rouse
$2.25 million in punitive damages in the second phase of the trial.
Thereafter, the trial court denied all of RJR's post-trial
motions. While the jury found that Rouse was 50% responsible for
his injuries, the court entered judgment on the full amount of the
jury's verdict because Rouse prevailed on one of his intentional
tort claims.
The appeal ensued. RJR argues that the court erred in denying its
motion for directed verdict on the conspiracy claim because Rouse
presented insufficient evidence to support it. More particularly,
RJR contends that Rouse failed to prove that he relied upon any
specific false or misleading statement made by any of the alleged
co-conspirators in furtherance of their agreement to conceal or
omit information regarding the health effects of cigarettes or
their addictive nature.
The Panel reviews the issue de novo, viewing the evidence and all
inferences of fact in the light most favorable to the nonmoving
party, and rejects this contention.
In the case, the jurors heard evidence about the tobacco industry's
multi-decade, pervasive misleading advertising campaign and the
false controversy it perpetrated during the years Rouse smoked,
aimed at creating doubt among the smokers over the adverse health
effects of smoking and the addictive nature of nicotine. The
expert testimony also established that the tobacco companies'
aggressive promotion of filtered cigarettes was a major part of
their disinformation campaign. The jurors then heard Rouse's own
testimony about his exposure to the tobacco companies' pervasive
cigarette advertisements in general, including advertisements
concerning filtered cigarettes. Further, Rouse specifically
recalled one advertisement displaying features of a filter, which
made him believe that a filter indeed made cigarettes safe. Rouse
also testified that if Winston cigarettes did not have a filter, he
would have not smoked them. This evidence was sufficient to
sustain an inference of detrimental reliance.
The Panel also finds that Rouse's testimony that he read and
believed the warnings on the packages of cigarettes did not rebut a
reasonable inference that the tobacco companies' misleading
advertising campaign, including their advertisements concerning
filtered cigarettes, could confuse Rouse's full understanding about
the health dangers of cigarette smoking to his detriment, and
nevertheless made him believe that filtered cigarettes were safer
than nonfiltered cigarettes.
In sum, not only did Rouse present evidence that he was exposed
throughout his life to the tobacco companies' broad-based
misleading advertising campaign, he also testified that his
decision to smoke Winston filtered cigarettes was influenced by the
way the tobacco companies promoted filtered cigarettes in their
advertisements. From this evidence, a reasonable jury could have
inferred that Rouse might have never started smoking Winston
filtered cigarettes or would have quit earlier had he known true
facts about filtered cigarettes. Based on the strength of the
evidence adduced to show reliance in the case, the Panel finds no
conflict with R.J. Reynolds Tobacco Co. v. Whitmire and R.J.
Reynolds Tobacco Co. v. Prentice. Accordingly, it affirmed.
A full-text copy of the Appeals Court's July 15, 2020 Opinion is
available at https://is.gd/UfDHab from Leagle.com.
King & Spalding LLP., and Scott Michael Edson -- sedson@kslaw.com
-- (Washington, DC) and William L. Durham II -- bdurham@kslaw.co --
(Atlanta, GA), for appellant.
The Alvarez Law Firm and Alex Alvarez --
Alex@integrityforjustice.com -- and Nicholas Reyes --
intake@integrityforjustice.com; The Mills Firm, P.A., and John S.
Mills and Courtney Brewer, (Tallahassee), for appellee.
ROADWAY INC: Jewell Sues Over Failure to Pay Overtime
-----------------------------------------------------
SIRGAE JEWELL, individually and on behalf of all those similarly
situated, Plaintiff v. ROADWAY INC. d/b/a ROADWAY TRANSPORT,
ROADWAY TOWING & RECOVERY, ROADWAY TOWING & TRANSPORTATION,
SAFELOCKS, GUSTAVO LOVATO and ADRIANA LOVATO, Defendants, Case No.
1:20-cv-23054-XXXX (S.D. Fla., July 23, 2020) is a class action
complaint brought against Defendants for their alleged violation of
the Fair Labor Standards Act.
Plaintiff was employed by Defendants as a non-exempt hourly laborer
from December 2019 until July 2020.
According to the complaint, Plaintiff regularly worked in excess of
40 hours per week for Defendant Roadway Towing but he was only paid
straight-time without overtime throughout his entire employment.
Defendants allegedly failed to compensate Plaintiff at one and
one-half times his regular rate of pay for all the hours worked in
excess of 40 per week.
Gustavo Lovato and Adriana Lovato own and operate Roadway Inc.
Roadway Inc. d/b/a Roadway Transport, Roadway Towing & Recovery,
Roadway Towing and Transportation, and Safelocks provide towing
services. [BN]
The Plaintiff is represented by:
Jason K. Kellogg, Esq.
Tal Aburos, Esq.
LEVINE KELLOGG LEHMAN
SCHNEIDER + GROSSMAN LLP
201 South Biscayne Blvd. 22nd Floor
Miami, FL 33131
Tel: 305-403-8788
Fax: 305-403-8789
Emails: jk@lklsg.com
ta@lklsg.com
- and –
Rafael E. Andrade, Esq.
LAW OFFICES OF RAFAEL E. ANDRADE, P.A.
1688 Meridian Ave., 7th Floor
Miami Beach, FL 33139
Tel: (305) 531-9511
Email: ralph@randradelaw.com
ROMANOFF FLOOR: $1.4M Settlement in Bailey Suit Has Prelim Approval
-------------------------------------------------------------------
In the case, JONATHAN BAILEY and JOSE CARRASCO JR., on behalf of
themselves and on behalf of all persons similarly situated,
Plaintiffs, v. ROMANOFF FLOOR COVERING, INC., a Corporation; and
Does 1 through 50, Inclusive, Defendant, Case No.
2:17-cv-00685-TLN-DMC (E.D. Cal.), Judge Troy L. Nunley of the U.S.
District Court for the Eastern District of California granted the
Plaintiffs' Motion for Preliminary Approval of Class Action
Settlement.
The operative Second Amended Complaint, filed July 17, 2018,
alleges violations of the Fair Credit Reporting Act; unfair
competition in violation of California Business and Professions
Code Section 17200; violations of the California Labor Code
Sections 201, 202, 203, 226, 510, 1194, 1197, 1198, and 2802; and
violation of the Private Attorneys General Act.
The Defendant denies any and all allegations relating to the
matter, including, among other things, that it has failed to
properly compensate non-exempt employees, failed to properly obtain
consent for background checks, or that it otherwise violated its
legal obligations. Defendant has asserted many affirmative
defenses, including that the claims are based on individualized
facts and are not appropriate for class certification.
On Feb. 28, 2018, the Parties participated in an all-day mediation
before mediator Mark Rudy. The Parties reached an agreement to
settle the Action pursuant to the terms and conditions of a
mediator's proposal. The Parties executed a Memorandum of
Understanding the same day and thereafter negotiated and prepared
the Agreement which sets forth the final terms of Settlement for
the Court's consideration.
To implement the terms of the Settlement, the Defendant agrees to
pay the Gross Settlement Amount of $1,375,000 in full and complete
satisfaction of the claims released by the Agreement. The Gross
Settlement Amount will consist of: (1) all payments made to
participating Class Members; (2) service awards to the Class
Representatives of up to $10,000 each; (3) $10,000 as the PAGA
Payment; (4) up to $30,000 for the expenses of the Settlement
Administrator; (5) the Class Counsel's approved attorneys' fees of
no more than 25% of the Gross Settlement Amount; and (6) the Class
Counsel's approved litigation costs of no more than $15,000. The
Gross Settlement Amount will not include the employer's share of
payroll taxes which will remain the separate responsibility of the
Defendant.
The Net Settlement Amount is the Gross Settlement Amount less the
Court-approved amounts for the Class Representative Service
Payments, the Class Counsel Fees Payment, the Class Counsel
Litigation Expenses Payment, the LWDA Payment, and the Settlement
Administrator's fees and expenses. The entire Net Settlement
Amount will be distributed to the Participating Class Members,
which are those Class Members who do not request exclusion.
The Net Settlement Amount will be allocated 30% to the FCRA Class
and 70% to the California Class. Within the portion of the Net
Settlement Amount allocated to the FCRA Class, 75% will be
allocated to the FCRA Class Members who received an FCRA form
within the 2-year statutory period of FCRA. The remaining 25% of
the portion of the Net Settlement Amount allocated to the FCRA
Class Members will be allocated to the FCRA Class Members who
received an FCRA form within the 5-year statutory period of FRCA
but outside of the 2-year statutory period of FCRA.
The Settlement Share for each Participating Class Member in the
FCRA Class will be allocated on a per person basis by taking the
Net Settlement Amount allocated to the 2-year and 5-year FCRA
subclasses and dividing that amount by the number of Participating
Class Members in each FCRA Class subclass. The Settlement Share
for each Participating Class Member in the California Class will be
calculated by (a) dividing the Net Settlement Amount allocated to
the California Class by the total number of Pay Periods for all
Participating Class Members in the California Class that occurred
during the California Class Period, and (b) multiplying the result
by each individual Participating Class Member's Pay Periods that
occurred during the California Class Period.
Settlement checks will remain valid for 180 days from the date of
issue. If the check of a California Class Member remains uncashed,
the uncashed check funds will be paid to the DIR Unpaid Wage Fund
in the name of the Participating Class Member. If the check of a
FCRA Class member remains uncashed, the uncashed funds will be paid
to the National Consumer Law Center, a non-profit organization
involved in FCRA advocacy.
As also set forth in the Agreement, the Parties have agreed to have
CPT Group appointed as Settlement Administrator. The Settlement
Administrator has estimated that administering the settlement will
not exceed the cost of $30,000. Such fees, costs, and expenses
will be deducted from the Gross Settlement Amount.
Additionally, the Class Counsel will apply to the Court for an
award of up to 25% of the Gross Settlement Amount for reasonable
attorneys' fees, and for reimbursement of litigation costs not to
exceed $15,000. The Plaintiffs will also apply for approval of
Class Representative Services Payments in an amount not to exceed
$10,000 each.
Judge Nunley has carefully considered the Plaintiffs' Motion and
all relevant documentation including the proposed Settlement
Agreement and proposed Notice to Class Members. He finds that all
the prerequisites of Federal Rule of Civil Procedure 23(a) and at
least one of the requirements of Rule 23(b) have been met.
Judge Nunley therefore preliminarily and conditionally approved the
following classes for settlement purposes only, subject to a final
fairness hearing and certification of the settlement class, under
the Federal Rules of Civil Procedure and related case law: (1) The
California Class is defined as all individuals who worked for
Defendant in California as non-exempt employees from March 30,
2013, up to and through May 1, 2018; and (2) the FCRA Class is
defined as all prospective employees for whom Defendant procured a
background check during the time period of March 30, 2012, to April
5, 2017.
Blumenthal Nordrehaug Bhowmik De Blouw LLP is approved as the Class
Counsel and the Plaintiffs are approved as the representatives of
the Class. CPT Group is also approved and appointed to act as the
Settlement Administrator with expenses not to exceed $30,000,
pursuant to the terms set forth in the Settlement. The Settlement
Administrator's duties are set forth in detail in the Agreement.
Having concluded that class treatment appears to be warranted,
Judge Nunley finds, on a preliminary basis, that the Settlement
Agreement appears to be fair, reasonable, and adequate. The
Parties' proposed Notice of Proposed Settlement of Class Action and
Hearing Date for Final Court Approval is approved.
The Defendant is directed to provide the Settlement Administrator
with the Class Members' Class Data as specified by the Agreement no
later than 30 days after the date of electronic filing of the
Order. Pursuant to the terms set forth in the Agreement, the Class
Data, its contents and any files containing Class Data will remain
strictly confidential for the Settlement Administrator's eyes only,
not to be disclosed to the Plaintiffs or to the Class Counsel or to
any Class Member. The Settlement Administrator is directed to mail
the approved Class Notice by first-class mail to the Class Members
at their last known address no later than 14 days after receipt of
the Class Data.
As set forth throughout the Agreement, the following implementation
schedule is approved:
a. Not later than 30 days from the date of electronic filing
of the Order, the Defendant will provide to the Settlement
Administrator an Excel file containing the Class Member's Class
Data.
b. Not later than 14 days from receipt of the Class Data, the
Settlement Administrator will mail the Class Notice Packets to all
Class Members using the addresses provided by Defendant.
c. If any Class Notice Packets are returned because of
incorrect address, the Settlement Administrator will, not later
than 10 days from receipt of the returned Notice Packet, search for
a more current address and will re-mail the packet to the updated
address.
d. Objections must be postmarked or received by the Settlement
Administrator not later than 45 days from the date the Class Notice
Packet was mailed.
e. Any signed Election Not to Participate in Settlement must
be postmarked or received by the Settlement Administrator not later
than 45 days from the date the Class Notice Packet was mailed.
f. The Class Counsel will file its Application for attorney's
fees and litigation expenses not later than 14 days before the
Class Members' deadline for objections. The Application should be
noticed for and heard at the Final Approval hearing.
g. The Motion for Final Approval of the Settlement Agreement
will be heard on Jan. 21, 2021.
h. The Plaintiffs' Motion for Final Approval will be filed not
later than Dec. 10, 2020. At least four days prior to filing, the
Class Counsel will provide a draft of the Motion to the Defendant's
Counsel.
i. Not later than the date the Plaintiffs file their Motion,
the Settlement Administrator will provide to the Parties a
declaration setting forth its compliance with its obligations under
the Agreement and detailing any Elections Not to Participate as
well as any objections received.
j. Not later than seven days after the Settlement
Administrator notifies the Parties of the final number of valid
Elections Not to Participate, the Defendant will notify the Class
Counsel and the Court whether it is exercising its right to void
the Settlement.
k. Not later than seven days before the hearing date, the
Parties may file a reply to any opposition filed with the Court.
l. Not later than 30 days from the Effective Date of
Settlement, Defendant will fund the Gross Settlement Amount per the
terms of the Agreement.
m. Not later than 14 days after funding, the Settlement
Administrator will issue all applicable payments as detailed in the
Agreement.
n. Checks must be cashed within 180 days of mailing. If any
check is not cashed within 120 days, the Settlement Administrator
will send a notice informing the Class Member that the check will
expire if it is not cashed in the next 60 days.
o. Within 10 days of final disbursement of all funds from the
Gross Settlement Amount, the Settlement Administrator will serve on
the Parties and file with the Court a declaration providing a final
report on the disbursements of all funds.
Judge Nunley set a hearing for final approval of the Settlement
Agreement and certification of the settlement classes on Jan. 21,
2021, at 2:00 p.m., with briefs and supporting documentation to be
filed no later than Dec. 10, 2020.
Any Class Member may appear at the final approval hearing in person
or by his or her own attorney and show cause why the Court should
not approve the Settlement, or object to the motion for an award of
attorneys' fees and costs and the Class Representative Service
Payments. For any written comments or objections to be considered
at the hearing, the Class Member must submit the written objections
to the Settlement Administrator in compliance with the instructions
in the Class Notice.
A full-text copy of the Court's July 15, 2020 Order is available at
https://is.gd/wKnwpS from Leagle.com.
RYANAIR HOLDINGS: Birmingham Funds' Suit Ongoing
------------------------------------------------
Ryanair Holdings plc said in its Form 20-F report filed with the
U.S. Securities and Exchange Commission on July 28, 2020, for the
fiscal year ended March 31, 2020, that the company continues to
defend a putative securities class action suit headed by the City
of Birmingham Retirement and Relief System and City of Birmingham
Firemen's and Policemen's Supplemental Pension System.
In November 2018, a putative securities class action complaint was
filed against the Company and Mr. Michael O'Leary in the United
States District Court for the Southern District of New York.
The District Court appointed a lead plaintiff, the City of
Birmingham Retirement and Relief System and City of Birmingham
Firemen's and Policemen's Supplemental Pension System (the
"Birmingham Funds"), in January 2019.
The Birmingham Funds filed an amended complaint in April 2019 that
purports to be on behalf of purchasers of Ryanair American
Depositary Shares ("ADSs") between May 30, 2017 and September 28,
2018. The amended complaint alleges, among other things, that in
filings with the Securities and Exchange Commission (SEC), investor
calls, interviews, and other communications, the Company and/or Mr.
O'Leary made materially false and misleading statements and
omissions regarding employment and financial data, employee
negotiation processes, the September 2017 pilot rostering
management issue, and the likelihood and financial impact of
unionization, which allegedly artificially inflated the market
value of the Company's securities.
In June 2019, the Company and Mr. O'Leary filed a motion to
dismiss.
In June 2020, the District Court issued a ruling dismissing in part
the Birmingham Funds' claims, including claims regarding employment
and financial data, employee negotiation processes, the September
2017 pilot rostering management issue, and the financial impact of
unionization.
The Birmingham Funds' claims regarding the likelihood of
unionization were not dismissed.
Ryanair intends to vigorously defend itself against the Birmingham
Funds’ claims.
Ryanair Holdings plc (Ryanair Holdings) is a holding company for
Ryanair Limited (Ryanair). Ryanair operates an ultra-low fare,
scheduled-passenger airline serving short-haul, point-to-point
routes between Ireland, the United Kingdom, Continental Europe,
Morocco and Israel. The company is based in Dublin, Ireland.
SALT CREEK: Mag. Judge Recommends Stay Bid Denial in Bock Suit
--------------------------------------------------------------
In the case, THOMAS BOCK, on behalf of himself and all others
similarly situated, Plaintiff, v. SALT CREEK MIDSTREAM LLC,
Defendant, Civ. No. 19-1163 WJ/GJF (D. N.M.), Magistrate Judge
Gregory J. Fouratt of the U.S. District Court for the District of
New Mexico recommended that (i) Kestrel's Motion to Intervene (MTI)
be granted; (2) Kestrel's Motion to Compel (MTC) Arbitration be
granted in part and denied in part; (3) the Defendant's Amended
Motion to Compel Arbitration and Stay Proceedings be denied; and
(4) the Defendant's original Motion to Compel Arbitration and Stay
Proceedings be denied as moot.
The Defendant is a midstream operator in the oil and gas industry.
To expand its transportation capacity, it commissioned in 2018 the
construction of a pipeline project in the Permian Basin, with a
portion of the pipeline originating in New Mexico and the lion's
share of the project to be built in Texas. For its part, Kestrel
is best thought of as a staffing company that furnishes skilled
employees to customers whose projects exceed the capability of
their in-house workforce. The Defendant contracted with Kestrel to
provide platoons of personnel qualified to inspect pipeline-related
features like welding and coating. Under the contract, formally
known as a Master Service Agreement ("MSA"), Kestrel provided the
Defendant with inspection services at various job sites throughout
west Texas and southeast New Mexico.
The inspectors, two of whom are Plaintiffs Bock and Brett Rice,
were hired by Kestrel as its employees. Kestrel created and stored
all human resource-related documents that Plaintiffs completed at
the onset of their employment. As a condition of the inspectors'
employment, Kestrel required each of them to execute a bilateral
Arbitration Agreement ("AA") and class action waiver. Once the
inspectors signed all the paperwork and executed their AAs, Kestrel
then directed the inspectors to specific job sites of Defendant to
provide inspection services. The Plaintiffs submitted their time
sheets to Kestrel and were paid by Kestrel. As has been common in
the oil and gas industry, Kestrel paid Plaintiffs a "day rate" as
opposed to a straight salary or an hourly wage. Viewing the
inspectors as exempt under federal and state wage-and-hour laws,
Kestrel did not pay its inspectors overtime, no matter how many
hours they worked in a given week.
This pay configuration gave rise to the instant lawsuit. But
rather than bringing claims against Kestrel, which hired and paid
them, the Plaintiffs instead have sued only Kestrel's customer,
Defendant Salt Creek. They allege that the Defendant--not
Kestrel--is their "true" employer. The Plaintiffs have
affirmatively disclaimed the theory that Defendant and Kestrel were
their "joint employers," opting instead to proceed on the single
legal theory that the Defendant was their actual employer and that
its pay structure and policy violated both the Fair Labor Standards
Act and the New Mexico Minimum Wage Act.
In response, the Defendant and Kestrel accuse the Plaintiffs of
"artfully pleading" their complaint to omit any mention whatsoever
of their employment with Kestrel--indeed, to omit any mention of
Kestrel at all. They assert that the Plaintiffs have done so for
one purpose only: to circumvent, avoid, and frustrate the AA they
each executed with Kestrel. To vindicate its own interests and
perhaps to keep faith with a customer, Kestrel has moved to
intervene and to compel the Plaintiffs to individually arbitrate
all of their claims, including those against the Defendant. As a
non-signatory to the AAs, the Defendant has moved to compel the
Plaintiffs to individual arbitration on the theory of equitable
estoppel.
Magistrate Judge Fouratt first determines whether Federal Rule of
Civil Procedure 24 permits Kestrel to intervene in the action.
Because he recommends that intervention be allowed, the Magistrate
next addresses Kestrel's request to compel the Plaintiffs to
individually arbitrate their claims against Defendant. He finishes
by analyzing whether equitable estoppel permits the Defendant as a
non-signatory to the AA to compel the Plaintiffs into individual
arbitration.
At the outset, Magistrate Judge Fouratt notes that the Plaintiffs
do not challenge the timeliness of Kestrel's MTI. Not only was the
Plaintiffs' response silent on the topic, the Plaintiffs' counsel
confirmed at oral argument that the Plaintiffs were not disputing
the timeliness with which Kestrel filed its motion. Furthermore,
the Magistrate notes that Kestrel filed its MTI approximately three
months after the lawsuit was filed, which was before discovery
commenced, before a pretrial schedule was imposed, and before any
meaningful hearings were held. Consequently, in addition to the
Plaintiffs' concession, the Court finds the MTI timely as a matter
of law.
Kestrel identifies four protectable interests: (1) enforcing the
Plaintiffs' arbitration agreement (and class action waiver), (2)
protecting its business model and pay structure, (3) defending its
position as the Plaintiffs' sole or joint employer, and (4)
limiting its financial exposure occasioned by the indemnity
provision in its MSA with Defendant. In Kestrel's view, the
Plaintiffs' claims against the Defendant impact each of these
interests, and proceeding without Kestrel being heard places these
interests at risk. It also emphasizes that, at this stage, the
Court need not assess the merits of whether an alleged interest is
impaired because such an impairment may be contingent upon the
outcome of litigation.
The Plaintiffs counter that Kestrel's arbitration agreement does
not affect their claims against Defendant and Kestrel therefore
lacks a valid interest in the current litigation. They also argue
that Kestrel's business practices--providing employees to the
Defendant through the MSA--and any interest in protecting the
practice is purely economic in nature and thus insufficient to
support intervention.
Because of the specter of potential indemnification, and because of
the threat the lawsuit poses to Kestrel's business model, the
Magistrate finds that Kestrel has a sufficiently direct economic
interest in the case and impairment of its interest is possible if
intervention is denied. With threats like that to Kestrel's
financial security and its business operations model, denying
Kestrel a podium in the debate is a result once again that Rule
24(a) is designed to prevent. Moreover, although aligned broadly
in common cause against the Plaintiffs, the Defendant and Kestrel
do not share identical or mutually symmetrical interests. Their
interests in the litigation are potentially divergent enough to
satisfy the 'minimal' burden of establishing a 'possibility' that
Kestrel's interests will not be adequately represented by the
Defendant. For these reasons, the Magistrate recommends that
Kestrel be permitted to intervene as of right under Rule 24(a).
Kestrel contends that it is entitled to permissive intervention for
two primary reasons. First, Kestrel asserts that it shares in
common with the Defendant the defense that the Plaintiffs should be
required to pursue their claims in individual arbitrations as
opposed to a class action lawsuit in federal court. It also argues
that it shares with Defendant the legal defense that the Plaintiffs
were properly classified as "exempt" from overtime under the FLSA
and NMMWA. In opposing permissive intervention, the Plaintiffs
lead off by arguing that Kestrel cannot possibly have a claim or
defense to assert because neither the Plaintiffs nor the Defendant
have made any claims against Kestrel.
Magistrate Judge Fouratt holds that Kestrel has met its burden and
he recommends that Kestrel alternatively be permitted to intervene
under Rule 24(b). The Court has already delayed crafting a case
schedule and stayed all discovery pending the outcome of the
Defendant's Motion to Compel Arbitration. Kestrel has set out
sufficient facts that demonstrate its defenses (and counterclaims)
raise common questions of law and fact. Kestrel's intervention has
not and will not unduly take any pace off the litigation.
For the foregoing reasons, Magistrate Judge Fouratt recommends that
Kestrel's MTI be granted, both with respect to intervention as of
right and permissive intervention.
If allowed to intervene, Kestrel next seeks to compel the
Plaintiffs to arbitrate their claims and to do so in individual,
not collective, actions. It also asserts that the class action
waiver included in the AA bars the Plaintiffs from engaging in any
class or collective action against anyone, whether in court or in
arbitration. In response, the Plaintiffs contend that they agreed
to arbitrate only claims or controversies they might have against
Kestrel (and the other entities and persons named in the AA) and,
since they haven't sued Kestrel, there are no claims to arbitrate.
They insist that they never agreed to arbitrate claims with the
Defendant and their AA with Kestrel does not address and does not
apply to their claims against the Defendant.
Magistrate Judge Fouratt recommends that the AA be interpreted so
as not to apply to the Plaintiffs' claims against the Defendant.
The reasons all share the same theme, which is that the AA--as
interpreted through the use of ordinary tools of contract
interpretation--would not have put the objective reader on notice
that claims, controversies, or disputes against Kestrel's customers
fell within the scope of the AA.
In the context of the overall agreement, construed through the
objective eyes of a reader applying ordinary meaning to words,
Section 1 of the AA cannot fairly be read to apply to claims
brought by Kestrel's employees against one of its customers. By
its plain language, that section limits the claims, controversies,
and disputes subject to arbitration to be those by and between the
signing employee and the list of entities and individuals
identified therein. To say now that the language is malleable
enough to apply to lawsuits against its customers--whom Kestrel
kept off the list and out of that section--would permit Kestrel to
smuggle an elephant through a keyhole, a result the Court believes
is not warranted by governing law. In the final analysis,
Kestrel's MTC invites the Court to rewrite the AA and thereby cure
what might have been a drafting error, an oversight, a failure to
predict the future, some combination of these, or something else
altogether. Magistrate Judge Fouratt declines the invitation and
urges the presiding judge to do the same.
Kestrel now points out that the Class Action Waiver in Section 3 of
the AA does not have the limiting language that made the
application of Section 1 so complicated and, in the Magistrate's
view, so confined. Kestrel emphasizes that Section 3 speaks to any
dispute" without limitation to the parties to that dispute. It
insists that even if arbitration is not compelled, the
class/collective action waiver should be enforced.
As the record now stands, the Plaintiffs' only opposition to the
applicability of the Class Action Waiver was the short and summary
response given by their counsel at oral argument. It does not take
the Court much time at all to reject that response because the
language of the Class Action Waiver plainly applies to "any
dispute" that can be brought, heard, decided, or arbitrated. The
language clearly contemplates disputes that can be resolved in
arbitration or a forum other than arbitration, that is, a court of
competent jurisdiction. Furthermore, Kestrel is correct that the
Class Action Waiver, unlike the Mutual Arbitration Agreement in
Section 1, does not contain any limitation whatsoever on the
disputes or the parties to the disputes that fall within its
scope.
Consequently, for the foregoing reasons, Magistrate Judge Fouratt
recommends that Kestrel's MTC be denied as it pertains to Kestrel's
request that the Plaintiffs be compelled to arbitrate their claims
against the Defendant. But he further recommends that Kestrel's
MTC be granted to the extent that it seeks a ruling forbidding the
Plaintiffs from pursuing their claims against the Defendant in a
class or collective action.
In its amended motion, the Defendant seeks an order compelling
Plaintiffs to pursue their claims against it in individual
arbitration. It contends that the Court should compel arbitration
solely under the doctrine of equitable estoppel under New Mexico
law. The Plaintiffs respond in two primary ways. First, they
contend that Texas law -- not New Mexico law -- should control the
debate over the applicability of equitable estoppel to the case.
They next assert that, even under New Mexico law, the Defendant's
motion should fail because the Plaintiffs have not made any
allegations that the Defendant engaged in interdependent and
concerted misconduct with anyone, much less Kestrel.
Magistrate Judge Fouratt is of the opinion that New Mexico's
contacts stand on a more solid footing. In sum, the Complaint's
allegations that the Plaintiffs performed a substantial portion of
inspection services in Eddy and Lea Counties, the subject matter of
the contract (inspection services that are alleged to have
substantially occurred in those counties), and New Mexico's
relationship under Restatement (Second) Sections 188 and 6 to the
dispute warrant the application of New Mexico's contractual
interpretation law in the action.
Finally, Magistrate Judge Fouratt finds that the New Mexico's
concerted misconduct estoppel doctrine--in its current
articulation--simply does not apply to a complaint that makes no
such allegations. And the Defendant has given the Court no reason
to believe that the New Mexico Supreme Court--even were it to
formally adopt the two-pronged doctrine of equitable estoppel that
has been charted out by the New Mexico Court of Appeals--would
extend the doctrine to reach a set of facts that are so
demonstrably different. To do so, the state supreme court would
essentially have to invent a third prong of the doctrine, one that
would estop signatories from plotting to avoid arbitration by
deliberately sanitizing their complaints against non-signatories to
omit any reference to another signatory. So far as the Court is
aware, no court anywhere has added that prong to its equitable
estoppel doctrine, and the Court is loath to speculate that New
Mexico's Supreme Court might do so in the case. For the foregoing
reasons, the Magistarte recommends that the Defendant's Amended MTC
be denied.
For the foregoing reasons, Magistrate Judge Fouratt recommended
that (i) Kestrel's MTI be granted, (ii) Kestrel's MTC be granted in
part and denied in part; (iii) the Defendant's Amended MTC be
denied; (iv) the Defendant's original MTC be denied as moot.
A full-text copy of the Court's July 15, 2020 Findings &
Recommendation is available at https://is.gd/vgc604 from
Leagle.com.
SEABOARD CORP: Bid to Dismiss Pork Antitrust Litigation Pending
---------------------------------------------------------------
Seaboard Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 28, 2020 for the
quarterly period ended June 27, 2020, that the defendants' motion
to dismiss the class action suit entitled, In re Pork Antitrust
Litigation, remains pending.
On June 28, 2018, Wanda Duryea and eleven other indirect purchasers
of pork products, acting on behalf of themselves and a putative
class of indirect purchasers of pork products, filed a class action
complaint in the U.S. District Court for the District of Minnesota
(the "District Court") against several pork processors, including
Seaboard Foods LLC and Agri Stats, Inc., a company described in the
complaint as a data sharing service.
Subsequent to the filing of this initial complaint, additional
class action complaints making similar claims on behalf of putative
classes of direct and indirect purchasers were filed in the
District Court.
The complaints were amended and consolidated for pre-trial
purposes, into three consolidated putative class actions brought on
behalf of (a) direct purchasers, (b) consumer indirect purchasers
and (c) commercial and institutional indirect purchasers. The
amended complaints named Seaboard Corporation as an additional
defendant.
The consolidated actions are styled In re Pork Antitrust
Litigation.
Subsequent to the original filings, two additional actions making
similar claims, including one by the Commonwealth of Puerto Rico,
were brought in or transferred to the District Court. The
complaints alleged, among other things, that beginning in January
2009, the defendants conspired and combined to fix, raise,
maintain, and stabilize the price of pork products in violation of
U.S. antitrust laws by coordinating their output and limiting
production, allegedly facilitated by the exchange of non-public
information about prices, capacity, sales volume and demand through
Agri Stats, Inc.
The complaints on behalf of the putative classes of indirect
purchasers also included causes of action under various state laws,
including state antitrust laws, unfair competition laws, consumer
protection statutes and state common law claims for unjust
enrichment.
The complaints also alleged that the defendants concealed this
conduct from the plaintiffs and the members of the putative
classes. The relief sought in the respective complaints includes
treble damages, injunctive relief, pre- and post-judgment interest,
costs and attorneys' fees on behalf of the putative classes. On
August 8, 2019, the District Court granted defendants' motion to
dismiss the class action cases while giving the plaintiffs leave to
amend.
The classes and the other two plaintiffs filed amended complaints
in November and December 2019. In addition to amending the original
claims, the consumer indirect purchasers have asserted a new claim
alleging that the exchange of information by defendants through
Agri Stats Inc. unreasonably restrained trade.
On January 15, 2020, the defendants, including Seaboard, moved to
dismiss the amended complaints. Seaboard intends to defend these
cases vigorously.
Seaboard said, "It is impossible at this stage either to determine
the probability of a favorable or unfavorable outcome resulting
from these suits, or to reasonably estimate the amount of potential
loss or range of potential loss, if any, resulting from the
suits."
No further updates were provided in the Company's SEC report.
Seaboard Corporation operates as a diverse agribusiness and
transportation company worldwide. The company's Pork division
produces and sells fresh pork products, such as loins, tenderloins,
and ribs, as well as frozen pork products to further processors,
food service operators, grocery stores, distributors, and retail
outlets. Seaboard Corporation was founded in 1918 and is
headquartered in Merriam, Kansas.
SEARS OUTLET: 3rd Cir. OKs Dismissal of Yucis Discrimination Suit
-----------------------------------------------------------------
The United States Court of Appeals for the Third Circuit issued an
Opinion affirming the District Court's Order granting the
Defendant's motion to dismiss the case captioned ELISABETH YUCIS,
Appellant v. SEARS OUTLET STORES, LLC; JOHN DOES 1-5 AND 6-10, Case
No. 19-2484 (3rd Cir.).
Appellant Elisabeth Yucis sued Appellee Sears Outlet Stores, LLC
(Sears Outlet) under New Jersey's Law Against Discrimination (LAD).
She alleges she visited a Sears Outlet store and was sexually
harassed by a sales manager, who is not a party to this case.
The District Court dismissed the action for failure to state a
claim, concluding that Ms. Yucis had not alleged facts that would
support Sears Outlet's vicarious liability for the harassment.
The Appellate Court agrees that the Plaintiff's claims for monetary
relief fail for that reason, and that she lacks standing to seek
equitable relief. Hence, the Appellate Court modifies the order of
dismissal to one for lack of jurisdiction as to equitable relief,
and affirms the order as modified.
A full-text copy of the Court of Appeals' June 1, 2020 Opinion is
available at https://tinyurl.com/yc84872n from Leagle.com
Deborah L. Mains, Esq. (Argued), Costello & Mains, 18000 Horizon
Way, Suite 800, in Mount Laurel, New Jersey, Counsel for
Appellant.
Concepcion A. Montoya, Esq. (Argued), Hinshaw & Culbertson, 800
Third Avenue, 13th Floor, in New York City, Counsel for Appellee.
SEI INVESTMENTS: Suits Over SPTC Services to Stanford Ongoing
-------------------------------------------------------------
SEI Investments Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 28, 2020 for the
quarterly period ended June 30, 2020, that the company and SEI
Private Trust Company (SPTC) continue to defend several class
action suits related to SPTC's services to Stanford Trust Company.
SEI has been named in seven lawsuits filed in Louisiana courts;
four of the cases also name SEI Private Trust Company (SPTC) as a
defendant.
The underlying allegations in all actions relate to the purported
role of SPTC in providing back-office services to Stanford Trust
Company. The complaints allege that SEI and SPTC participated in
some manner in the sale of "certificates of deposit" issued by
Stanford International Bank so as to be a "seller" of the
certificates of deposit for purposes of primary liability under the
Louisiana Securities Law or so as to be secondarily liable under
that statute for sales of certificates of deposit made by Stanford
Trust Company.
Two of the actions also include claims for violations of the
Louisiana Racketeering Act and possibly conspiracy, and a third
also asserts claims of negligence, breach of contract, breach of
fiduciary duty, violations of the uniform fiduciaries law,
negligent misrepresentation, detrimental reliance, violations of
the Louisiana Racketeering Act, and conspiracy.
The procedural status of the seven cases varies.
The Lillie case, filed originally in the 19th Judicial District
Court for the Parish of East Baton Rouge, was brought as a class
action and is procedurally the most advanced of the cases. SEI and
SPTC filed exceptions, which the Court granted in part, dismissing
claims under the Louisiana Unfair Trade Practices Act and
permitting the claims under the Louisiana Securities Law to go
forward.
On March 11, 2013, newly-added insurance carrier defendants removed
the case to the United States District Court for the Middle
District of Louisiana. On August 7, 2013, the Judicial Panel on
Multidistrict Litigation transferred the matter to the Northern
District of Texas where MDL 2099, In re: Stanford Entities
Securities Litigation ("the Stanford MDL"), is pending. On
September 22, 2015, the District Court on the motion of SEI and
SPTC dismissed plaintiffs' claims for primary liability under
Section 714(A) of the Louisiana Securities Law, but declined to
dismiss plaintiffs' claims for secondary liability under Section
714(B) of the Louisiana Securities Law based on the allegations
pled by plaintiffs.
On November 4, 2015, the District Court granted SEI and SPTC's
motion to dismiss plaintiffs' claims under Section 712(D) of the
Louisiana Securities Law. Consequently, the only claims of
plaintiffs remaining in Lillie are plaintiffs' claims for secondary
liability against SEI and SPTC under Section 714(B) of the
Louisiana Securities Law.
On May 2, 2016, the District Court certified the class as being
"all persons for whom Stanford Trust Company purchased or renewed
Stanford Investment Bank Limited certificates of deposit in
Louisiana between January 1, 2007 and February 13, 2009". Notice of
the pendency of the class action was mailed to potential class
members on October 4, 2016.
On December 1, 2016, a group of plaintiffs who opted out of the
Lillie class filed a complaint against SEI and SPTC in the United
States District Court in the Middle District of Louisiana ("Ahders
Complaint"), alleging claims essentially the same as those in
Lillie. In January 2017, the Judicial Panel on Multidistrict
Litigation transferred the Ahders proceeding to the Northern
District of Texas and the Stanford MDL.
During February 2017, SEI and SPTC filed their response to the
Ahders Complaint, and in March 2017 the District Court for the
Northern District of Texas approved the stipulated dismissal of all
claims in this Complaint predicated on Section 712(D) or Section
714(A) of the Louisiana Securities Law.
In both cases, as a result of the proceedings in the Northern
District of Texas, only the plaintiffs' secondary liability claims
under Section 714(B) of the Louisiana Securities Law remain.
Limited discovery and motions practice have occurred, including SEI
and SPTC's filing of a dispositive summary judgment motion in the
Lillie proceeding. On January 31, 2019, the Judicial Panel on
Multidistrict Litigation remanded the Lillie and Ahders proceedings
to the Middle District of Louisiana.
With respect to the Lillie proceeding, on July 9, 2019, the
District Court issued an order granting SEI's Summary Judgment
Motion to dismiss the remaining Section 714(B) claim and denying
Plaintiffs' Motion for Continuance of SEI and SPTC’s Motion for
Summary Judgment pursuant to Rule 56(d). On July 17, 2019,
Plaintiffs filed a Motion for Reconsideration and/or New Trial.
The Court denied Plaintiffs' Motion for Reconsideration and/or New
Trial and entered a Final Judgment in favor of SEI and SPTC on
August 15, 2019. On August 27, 2019, Plaintiffs-Appellants filed a
Notice of Appeal to the United States Court of Appeals for the
Fifth Circuit of the District Court's dismissal of the Lillie
matter. On November 20, 2019, Plaintiffs-Appellants filed a Motion
in Support of the Notice of Appeal.
On January 17, 2020, SEI and SPTC timely filed their brief in
opposition to the Plaintiffs-Appellants' motion for appeal. On
February 7, 2020, Plaintiffs- Appellants filed their reply brief.
The parties are currently waiting for oral argument to be
scheduled.
With respect to the Ahders proceeding, on July 16, 2019, SEI and
SPTC filed a Motion for Summary Judgment pursuant to Rule 56(d) to
have the remaining Section 714(B) claim dismissed. On January 24,
2020, the District Court issued an order granting SEI's Summary
Judgment Motion to dismiss the remaining Section 714(B) claim.
On March 17, 2020, Plaintiffs-Appellants filed a Notice of Appeal
to the United States Court of Appeals for the Fifth Circuit of the
District Court's dismissal of the Ahders matter. Similar to the
Lillie matter, all motions and briefs in support of the parties'
positions have been filed and the parties are currently waiting for
oral argument to be scheduled.
Another case, filed in the 23rd Judicial District Court for the
Parish of Ascension, also was removed to federal court and
transferred by the Judicial Panel on Multidistrict Litigation to
the Northern District of Texas and the Stanford MDL. The schedule
for responding to that Complaint has not yet been established.
Two additional cases remain in the Parish of East Baton Rouge.
Plaintiffs filed petitions in 2010 and have granted SEI and SPTC
indefinite extensions to respond. No material activity has taken
place since.
In two additional cases, filed in East Baton Rouge and brought by
the same counsel who filed the Lillie action, virtually all of the
litigation to date has involved motions practice and appellate
litigation regarding the existence of federal subject matter
jurisdiction under the federal Securities Litigation Uniform
Standards Act (SLUSA). The matters were removed to the United
States District Court for the Northern District of Texas and
consolidated. The court then dismissed the action under SLUSA.
The Court of Appeals for the Fifth Circuit reversed that order, and
the Supreme Court of the United States affirmed the Court of
Appeals judgment on February 26, 2014. The matters were remanded to
state court and no material activity has taken place since that
date.
SEI said, "While the outcome of this litigation remains uncertain,
SEI and SPTC believe that they have valid defenses to plaintiffs'
claims and intend to defend the lawsuits vigorously. Because of
uncertainty in the make-up of the Lillie class, the specific
theories of liability that may survive a motion for summary
judgment or other dispositive motion, the relative lack of
discovery regarding damages, causation, mitigation and other
aspects that may ultimately bear upon loss, the Company is not
reasonably able to provide an estimate of loss, if any, with
respect to the foregoing lawsuits."
SEI Investments Company is a publicly owned asset management
holding company. Through its subsidiaries, the firm provides wealth
management, retirement and investment solutions, asset management,
asset administration, investment processing outsourcing solutions,
financial services, and investment advisory services to its
clients. SEI Investments Company was founded in 1968 and is based
in Oaks, Pennsylvania.
SIX FLAGS: Still Defends Lawsuits Over Credit Card Info
-------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on July 30, 2020,
for the quarterly period ended June 30, 2020, that the company
continues to defend against putative class action suits related to
the printing of more than the last five digits of a credit or debit
card number on customers' receipts, and/or the expiration dates of
the cards.
During 2017, four putative class action complaints were filed
against Six Flags Entertainment Corporation (Holdings) or one of
its subsidiaries. Complaints were filed on August 11, 2017, in the
Circuit Court of Lake County, Illinois; on September 1, 2017, in
the United States District Court for the Northern District of
Georgia; on September 11, 2017, in the Superior Court of Los
Angeles County, California; and on November 30, 2017, in the
Superior Court of Ocean County, New Jersey.
The complaints allege that the company, in violation of federal
law, printed more than the last five digits of a credit or debit
card number on customers’ receipts and/or the expiration dates of
those cards.
A willful violation may subject a company to liability for actual
damages or statutory damages between $100 and $1,000 per person,
punitive damages in an amount determined by a court and reasonable
attorneys' fees, all of which are sought by the plaintiffs.
The complaints do not allege that any information was misused.
The Circuit Court in Illinois granted the company's motion to
dismiss on November 2, 2018, but the matter was reversed on appeal
on January 22, 2020. The Illinois Supreme Court has granted review,
but briefing has not yet been submitted.
The District Court for the Northern District of Georgia denied the
company's motion to dismiss on May 6, 2019, but on December 31,
2019, the matter was stayed and administratively closed on the
company's motion based on the Eleventh Circuit's review of an order
denying dismissal in a case involving substantially similar factual
allegations and statutory violations.
Either side may move to reopen the Georgia case within 30 days of
the issuance of the Eleventh Circuit's opinion in the other matter.
The company's demurrer in the California matter was overruled on
February 26, 2019, but the order contained certain favorable
rulings that enabled us to file a motion for summary judgment on
December 12, 2019. That motion is still pending. The Superior Court
in the New Jersey matter granted the company's motion to dismiss on
January 18, 2019, which ruling the plaintiff has appealed, and the
matter is fully briefed.
Six Flags said, "We intend to vigorously defend ourselves against
these lawsuits. The outcome of these lawsuits is currently not
determinable, and a reasonable estimate of loss or range of loss in
excess of the immaterial amount that we have recorded for this
litigation cannot be made."
No further updates were provided in the Company's SEC report.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SIX FLAGS: Still Defends Suit Over Collection of Biometric Data
---------------------------------------------------------------
Six Flags Entertainment Corporation continues to face litigation
over the collection of biometric data, the company said in its Form
10-Q Report filed with the Securities and Exchange Commission on
July 30, 2020, for the quarterly period ended June 30, 2020.
On January 7, 2016, a putative class action complaint was filed
against Six Flags Entertainment Corporati (Holdings) in the Circuit
Court of Lake County, Illinois. On April 22, 2016, Great America,
LLC was added as a defendant.
The complaint asserts that the company violated the Illinois
Biometric Information Privacy Act ("BIPA") in connection with the
admission of season pass holders and members through the finger
scan program that commenced in the 2014 operating season at Six
Flags Great America in Gurnee, Illinois, and seeks statutory
damages, attorneys' fees and an injunction.
An aggrieved party under BIPA may recover (i) $1,000 if a company
is found to have negligently violated BIPA or (ii) $5,000 if found
to have intentionally or recklessly violated BIPA, plus reasonable
attorneys' fees in each case. The complaint does not allege that
any information was misused or disseminated.
On April 7, 2017, the trial court certified two questions for
consideration by the Illinois Appellate Court of the Second
District. On June 7, 2017, the Illinois Appellate Court granted the
company's motion to appeal. Accordingly, two questions regarding
the interpretation of BIPA were certified for consideration by the
Illinois Appellate Court.
On December 21, 2017, the Illinois Appellate Court found in the
company's favor, holding that the plaintiff had to allege more than
a technical violation of BIPA and had to be injured in some way in
order to have a right of action.
On March 1, 2018, the plaintiff filed a petition for leave to
appeal to the Illinois Supreme Court. On May 30, 2018, the Illinois
Supreme Court granted the plaintiff's leave to appeal and oral
arguments were heard on November 20, 2018.
On January 25, 2019, the Illinois Supreme Court found in favor of
the plaintiff, holding that the plaintiff does not need to allege
an actual injury beyond the violation of his rights under BIPA in
order to proceed with a complaint.
Six Flags said, "We intend to continue to vigorously defend
ourselves against this litigation. Since this litigation is in an
early stage, the outcome is currently not determinable, and a
reasonable estimate of loss or range of loss in excess of the
immaterial amount that we have recorded for this litigation cannot
be made."
No further updates were provided in the Company's SEC report.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SKY SOLAR: Bid to Amend SAC in Barilli Securities Suit Denied
-------------------------------------------------------------
The U.S. District Court for the Southern District of New York
issued a Memorandum Opinion and Order denying the Plaintiffs'
Motion to Amend Second Amended Complaint in the case captioned
ANDREW BARILLI and RONALD PENA, Individually and on Behalf of All
Others Similarly Situated v. SKY SOLAR HOLDINGS, LTD., WEILI SU,
JIANMIN WANG, YI ZHANG, XIAOGUANG DUAN, HAO WU, DONGLIANG LIN, ROTH
CAPITAL PARTNERS, LLC, and NORTHLAND SECURITIES, INC., Case No. 17
CV 4572-LTS-DCF (S.D.N.Y.).
Andrew Barilli and Ronald Pena (Plaintiffs) bring this action
against Sky Solar Holdings, Ltd. (Sky), Roth Capital Partners, LLC
(Roth) and Northland Securities, Inc. (Underwriter Defendants),
Weili Su (Su), Jainmin Wang, Yi Zhang, Xiaoguang Duan, Hao Wu, and
Dongliang Lin (Defendants) for violations of the Securities Act of
1933 and the Securities Exchange Act of 1934.
On May 23, 2019, the Court granted the Defendants' motion to
dismiss the complaint for failure to state a claim upon which
relief can be granted and, on December 2, 2019, denied the
Plaintiffs' motion to reconsider that decision. The Plaintiffs then
move pursuant to Federal Rule of Civil Procedure 15(a)(2) to amend
the SAC.
In the Proposed Third Amended Complaint, the Plaintiffs seek to add
allegations based on an Award issued on May 28, 2018, in an
arbitration proceeding in Hong Kong (the "Hong Kong Arbitration").
The Hong Kong Arbitration tribunal awarded the claimants therein
damages for breach by Defendant Su of a 2010 Shareholders Agreement
in connection with a September 12, 2013, share swap (the "2013
Share Swap") in which shareholders owning 94.8% of the shares in
Sky Solar Holdings Co. Ltd. ("SSHCL") exchanged their interest in
SSHCL for an equivalent equity interest in Sky Power Group Limited
("SPGL"), a wholly owned subsidiary of SSHCL. Defendant Sky was a
wholly owned subsidiary of SPGL.
The tribunal found that the "effect of the 2013 Share Swap was to
transfer all of [SSHCL's] valuable assets to a new vehicle," and
that Sky was therefore "essentially the same entity as SSHCL." The
relevant provision of the Shareholders Agreement had required Su to
use "commercially reasonable best efforts to effect" an IPO of
SSHCL.
The Award states that Su's justification for the 2013 Share Swap
was "the implementation of an IPP model" and finds that Su provided
no evidence to support that contention and never appeared at the
arbitration hearing. The Hong Kong tribunal found that Su's
explanation for the 2013 Share Swap was not "credible or
convincing," as there "was nothing in the SEC Prospectus to
indicate that [moving to an IPP model] was the motivation behind
the restructure."
The claims asserted in the Hong Kong Arbitration were disclosed in
the Prospectus. According to the Plaintiffs, the Award demonstrates
that statements in the Prospectus that the Defendants believed the
claims were "without merit" and "may be attempting to extort
economic benefits" were misrepresentations. The Plaintiffs further
allege that "[n]o reasonable person, with knowledge of the true
facts, after exercising due diligence, could hold the belief. . .
that the allegations against Su were "without merit" or an attempt
to "extort" economic benefits." The TAC does not proffer any new
factual allegations that the Plaintiffs suffered financial losses.
Finally, the TAC includes certain minor and, for the most part,
conclusory allegations in support of Plaintiffs' claims related to
other alleged misstatements in the Prospectus regarding Sky's
access to financing.
In the Memorandum Opinion and Order, District Judge Laura Taylor
Swain opines that the Plaintiffs have failed to allege facts from
which the Court may infer loss causation related to the alleged
misrepresentation. Judge Swain notes that it is plaintiffs' "burden
[to prove] that the act or omission of the defendant alleged to
violate this chapter caused the loss for which the plaintiff[s]
seek[ ] to recover damages." 15 U.S.C.S. Section 78u-4(b)(4)
(LexisNexis 2018). Thus, the Plaintiffs must allege "that the
subject of the fraudulent statement or omission was the cause of
the actual loss suffered."
Judge Swain explains that the Plaintiffs describe the fraudulent
statement too broadly; the subject of the statement that "[w]e
believe that [the claims asserted in the Hong Kong Arbitration] are
without merit" is simply whether those claims had merit. The
Plaintiffs have not alleged that the public disclosure of the merit
of those claims caused the loss for which they seek to recover
damages. Accordingly, the Plaintiffs have not alleged facts from
which the Court may infer loss causation, and it would be futile to
permit Plaintiffs to amend the complaint to add these allegations
in support of their Exchange Act claims.
Accordingly, none of the allegations in the TAC is sufficient to
revive any of the claims dismissed in the MTD Opinion and leave to
amend would be futile, Judge Swain opines. Hence, the Plaintiffs'
motion to amend the Second Amended Complaint is denied in its
entirety and the case is dismissed. The Clerk of Court is directed
to enter judgment dismissing the Second Amended Complaint and close
this case.
A full-text copy of the District Court's June 1, 2020 Memorandum
Opinion and Order is available at https://tinyurl.com/yd9246dh from
Leagle.com.
SLEEP NUMBER: Tenzer-Fuchs Sues Over Blind-Inaccessible Web Site
----------------------------------------------------------------
Michelle Tenzer-Fuchs, on behalf of herself and all others
similarly situated v. SLEEP NUMBER CORPORATION, d/b/a SLEEP NUMBER,
Case No. 2:20-cv-03552 (E.D.N.Y., Aug. 6, 2020), is brought against
the Defendant for its failure to design, construct, maintain, and
operate its Web site to be fully accessible to and independently
usable by the Plaintiff and other blind or visually-impaired
consumers.
According to the complaint, the Defendant's denial of full and
equal access to its Web site, http://www.sleepnumber.com/,and the
resulting denial of equal access to the goods and services offered
thereby, is a violation of the Plaintiff's rights under the
Americans with Disabilities Act of 1990. Because the Defendant's
Web site is not equally accessible to blind and visually-impaired
consumers, it violates the ADA. The Defendant's Web site contains
various and multiple access barriers that make it extremely
difficult--if not impossible--for blind and visually-impaired
consumers to attempt to complete a transaction.
The Plaintiff is a visually-impaired and legally blind person, who
suffers from what constitutes a "qualified disability" under the
ADA and thus requires screen-reading software to read Web site
content using her computer.
The Plaintiff seeks a permanent injunction to initiate a change in
the Defendant's corporate policies, practices, and procedures so
that the Defendant's Web site will become and remain accessible to
blind and visually-impaired consumers, says the complaint.
The Defendant is a mattress, bedding retailer, and an online
retailer that specializes in developing and producing adjustable,
individualized smart beds, pillows, bed frames, and other related
products.[BN]
The Plaintiff is represented by:
Jonathan Shalom, Esq.
SHALOM LAW, PLLC
105-13 Metropolitan Avenue
Forest Hills, New York 11375
Phone: (718) 971-9474
Email: Jshalom@JonathanShalomLaw.com
SO CAL PLUMBING: Sasani Seeks Penalties for Labor Code Violations
-----------------------------------------------------------------
Shwon Sasani, on behalf of himself and all others aggrieved
employees v. SO CAL PLUMBING HEATING & AIR CONDITIONING, a
California Limited Liability Corporation; DUSTIN TAYLOR, an
individual, and DOES 1- 50, Inclusive, Case No. 20STCV29787 (Cal.
Super., Los Angeles Cty., Aug. 6, 2020), is brought to collect
civil penalties for the Defendants' alleged violations of the
California Labor Code.
The Defendant violated numerous wage and hour laws with respect to
the Plaintiff and other aggrieved employees by failing to provide:
accurate and itemized wages statements, payment for all hours
worked (including regular wages and overtime), failure to provide a
minimum wage lawful meal periods, lawful rest periods, timely
payment during employment, failure to reimburse for expenses
incurred during the course and scope of employment, and payment
upon separation of employment, says the complaint.
The Plaintiff was hired by the Defendant an independent contractor
and terminated him on September 17, 2019, with the titles as
"Technician, repair man, installer and sales representative."
The Defendant is a limited liability corporation which, existing,
doing business and employing individuals in the County of Los
Angeles, State of California.[BN]
The Plaintiff is represented by:
Justin Lo, Esq.
WORK LAWYERS, PC
22939 Hawthorne Blvd., #202
Torrance, CA 90505
Phone: (866) 496- 7552
Fax: (424) 355-8535
Email: Justin@WorkLawyers.com
SOUTHWEST AIRLINES: Appeal in Airfare-Related Class Suit Ongoing
----------------------------------------------------------------
Southwest Airlines Co. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2020 for the
quarterly period ended June 30, 2020, that the appeal from a lower
court decision approving the settlement of the airfare-related
class suit remains pending even as objectors to the settlement have
opted to drop the appeal.
On July 1, 2015, a complaint was filed in the United States
District Court for the Southern District of New York on behalf of
putative classes of consumers alleging collusion among the Company,
American Airlines, Delta Air Lines, and United Airlines to limit
capacity and maintain higher fares in violation of Section 1 of the
Sherman Act.
Since then, a number of similar class action complaints were filed
in the United States District Courts for the Central District of
California, the Northern District of California, the District of
Columbia, the Middle District of Florida, the Southern District of
Florida, the Northern District of Georgia, the Northern District of
Illinois, the Southern District of Indiana, the Eastern District of
Louisiana, the District of Minnesota, the District of New Jersey,
the Eastern District of New York, the Southern District of New
York, the Middle District of North Carolina, the District of
Oklahoma, the Eastern District of Pennsylvania, the Northern
District of Texas, the District of Vermont, and the Eastern
District of Wisconsin.
On October 13, 2015, the Judicial Panel on Multi-District
Litigation centralized the cases to the United States District
Court in the District of Columbia.
On March 25, 2016, the plaintiffs filed a Consolidated Amended
Complaint in the consolidated cases alleging that the defendants
conspired to restrict capacity from 2009 to present.
The plaintiffs seek to bring their claims on behalf of a class of
persons who purchased tickets for domestic airline travel on the
defendants' airlines from July 1, 2011 to present. They seek treble
damages, injunctive relief, and attorneys' fees and expenses.
On May 11, 2016, the defendants moved to dismiss the Consolidated
Amended Complaint, and on October 28, 2016, the Court denied this
motion. On December 20, 2017, the Company reached an agreement to
settle these cases with a proposed class of all persons who
purchased domestic airline transportation services from July 1,
2011, to the date of the settlement.
The Company agreed to pay $15 million and to provide certain
cooperation with the plaintiffs as set forth in the settlement
agreement. The Court granted preliminary approval of the settlement
on January 3, 2018, and the plaintiffs provided notice to the
proposed settlement class. The Court held a fairness hearing on
March 22, 2019, and it issued an order granting final approval of
the settlement on May 9, 2019.
On June 10, 2019, three objectors filed notices of appeal to the
United States Court of Appeals for the District of Columbia
Circuit. Two of the objectors dismissed their appeals, and the
Company and the other settling parties moved to dismiss the
remaining appeal because the district court did not certify the
approval order as appealable.
After the district court denied the remaining objectors' request to
certify the approval order as a final appealable order, on November
6, 2019, the objectors asked the court of appeals to dismiss their
appeal. The court of appeals has instructed the parties to brief
the jurisdictional issues together with the merits of the
objectors' objections to the settlement. The case is continuing as
to the remaining defendants.
The Company denies all allegations of wrongdoing.
No further updates were provided in the Company's SEC report.
Southwest Airlines Co. operates a passenger airline that provides
scheduled air transportation services in the United States and
near-international markets. Southwest Airlines Co. was founded in
1967 and is based in Dallas, Texas.
SOUTHWEST AIRLINES: Securities Class Suit Underway in Texas
------------------------------------------------------------
Southwest Airlines Co. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2020 for the
quarterly period ended June 30, 2020, that the company continues to
defend a class action suit pending before the United States
District Court for the Northern District of Texas in Dallas.
On February 19, 2020, a complaint alleging violations of federal
securities laws and seeking certification as a class action was
filed against the Company and certain of its officers in the United
States District Court for the Northern District of Texas in Dallas.
A lead plaintiff has been appointed in the case, and an amended
complaint was filed on July 2, 2020. The amended complaint seeks
damages on behalf of a putative class of persons who purchased the
Company’s common stock between February 7, 2017, and January 29,
2020.
The amended complaint asserts claims under Sections 10(b) and 20 of
the Securities Exchange Act and alleges that the Company made
material misstatements to investors regarding the Company's safety
and maintenance practices and its compliance with federal
regulations and requirements.
The amended complaint generally seeks money damages, pre-judgment
and post-judgment interest, and attorneys' fees and other costs.
The Company denies all allegations of wrongdoing, including those
in the amended complaint.
The Company believes the plaintiffs' positions are without merit
and intends to vigorously defend itself.
Southwest Airlines Co. operates a passenger airline that provides
scheduled air transportation services in the United States and
near-international markets. Southwest Airlines Co. was founded in
1967 and is based in Dallas, Texas.
SPARTAN RACE: Court Won't Modify Scheduling Order in Fruitstone
---------------------------------------------------------------
In the case, AARON FRUITSTONE, on behalf of himself and all others
similarly situated, Plaintiff, v. SPARTAN RACE INC., Defendant,
Case No. 1:20-cv-20836-BLOOM/Louis (S.D. Fla.), Judge Beth Bloom of
the U.S. District Court for the Southern District of Florida denied
the Defendant's Motion to Stay Discovery Pending Resolution of Its
Motion to Transfer the Case under 28 U.S.C. Section 1404(a) or, in
the alternative, Motion to Dismiss Plaintiff's Amended Complaint
and Motion to Modify This Court's Scheduling Order Setting Trial
and Pre-trial Schedule and to Stay Class Discovery Pending
Resolution of Threshold Legal Issues Regarding the Putative Class
Representative's Claims.
Plaintiff filed his First Amended Complaint on April 13, 2020, and
the Defendant filed its Motion to Transfer or, in the Alternative,
Motion to Dismiss ("Underlying Motion") on May 4, 2020. The Motion
first requests that the Court stay discovery pending resolution of
the Underlying Motion. On May 28, 2020, the Court entered an Order
denying the Underlying Motion. Accordingly, the instant Motion is
denied as moot regarding the request to stay discovery pending
resolution of the Underlying Motion.
The Motion also requests the Court to modify the Scheduling Order
to permit discovery to occur in phases (Plaintiff-specific
discovery prior to any class discovery) and to stay class discovery
pending resolution of the Plaintiff's specific claims, with
discovery on class issues only commencing after resolution of
summary judgment on the Plaintiff's individual claims. According
to the Defendant, the Amended Complaint's inclusion of a
Massachusetts law cause of action significantly expanded the scope
of the lawsuit and, likewise, results in potential nationwide
discovery on multi-jurisdictional issues. It asserts that staying
class discovery to first allow resolution of the Plaintiff's
individual claims will potentially prevent needless, time-consuming
class discovery, promote efficiency and judicial economy, and
result in inexpensive litigation.
In the Response, the Plaintiff asserts that the Defendant knew that
he intended to raise a Massachusetts law claim before the Court
entered the Scheduling Order, and that the elements of the
Massachusetts Chapter 93A claim mirror those of the Florida
consumer protection claims already alleged in the initial
Complaint. Further, the initial complaint included a claim for
unjust enrichment on behalf of a nationwide class. Therefore,
according to the Plaintiff, the Amended Complaint has not
significantly expanded the scope of this lawsuit, and Defendant has
not provided good cause to modify the Scheduling Order.
In reply, the Defendant asserts that phased discovery is
appropriate given the nature of the putative nationwide class
implicated by the Amended Complaint. It also notes that while the
Plaintiff did initially seek a nationwide class in the initial
complaint, the Massachusetts claim could greatly expand the scope
of discovery because potentially every Spartan participant
throughout the world is encompassed within the Plaintiff's
Massachusetts Chapter 93A claim. It adds that the Plaintiff will
not be prejudiced by a phased approach.
Judge Bloom does not find good cause to modify the Scheduling
Order. Under both the initial complaint and the instant Amended
Complaint, the Plaintiff has asserted claims based on a Florida
class and a nationwide class. Likewise, in the parties' Joint
Scheduling Report, which was submitted against the backdrop of a
pending nationwide class action claim in the initial complaint, the
parties agreed to conduct discovery under the current arrangement.
That filing noted that the Plaintiff anticipates amending or, if
necessary, seeking leave to amend to assert claims under
Massachusetts General Laws, Chapter 93A. Thus, the prospect of
litigating a Massachusetts law claim was known to the Defendant
before the Court entered the Scheduling Order.
To be clear, the parties agreed that the case deserved to be placed
on a standard case management track and that discovery should not
be conducted in phases. Moreover, the Scheduling Order essentially
mirrors the parties' proposed report and allows for the
determination of class certification through a somewhat staggered
discovery period. As such, the Juduge is unconvinced that the
Scheduling Order should be modified or that the Plaintiff's
addition of a Massachusetts law claim significantly expanded the
scope of the lawsuit such that discovery needs to be conducted
differently than that set forth in the Scheduling Order.
Accordingly, the Court denied the the Motion.
A full-text copy of the District Court's May 29, 2020 Order is
available at https://is.gd/vMnAcC from Leagle.com.
STATE FARM: Court Partially Grants Bid to Dismiss Irvin Class Suit
------------------------------------------------------------------
In the case, D'ELLA IRVIN, et al., Plaintiffs, v. STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY, Defendant, Civil Action No.
3:19-CV-690-CHB (W.D. Ky.), Judge Claria Horn Boom of the U.S.
District Court for the Western District of Kentucky, Louisville,
(i) granted in part the Defendant's Motion to Dismiss or,
Alternatively, for Abstention, (ii) remanded the Plaintiffs' claim
for unpaid Personal Injury Protection ("PIP") benefits to Jefferson
Circuit Court, and (iii) denied the Plaintiffs' Motion for Remand
and Attorney Fees.
The matter involves a putative class action lawsuit against State
Farm filed by Plaintiffs Irvin, Clara Arrebato Pedroso, and
Katherine Hernandez Arrebato. In Kentucky, the Motor Vehicle
Reparations Act ("MVRA") requires insurance companies to offer PIP
benefits with all policies they sell. PIP benefits are also known
as no-fault benefits, or basic reparations benefits, and auto
insurance companies must provide these benefits for injuries
suffered in automobile accidents. In exchange, the MVRA requires
drivers to purchase automobile insurance, caps these benefits at
$10,000, and limits tort liability for drivers.
Plaintiffs Irvin, Pedroso, and Arrebato are all State Farm
policyholders who were denied PIP benefits by State Farm based on a
"paper review." They were each involved in automobile accidents in
2010 and 2015 and were denied PIP benefits for injuries suffered in
those accidents. A "paper review" is where an insurance company
denies a policyholder's claim without conducting a medical
examination, instead relying on a report prepared by a third-party
medical provider (hired by the insurer) to evaluate an insured's
claim. In 2018, the Kentucky Supreme Court held that insurance
companies could not deny PIP benefits solely based on paper
reviews.
The Plaintiffs seek to bring the action on behalf of themselves and
all insureds in Kentucky who were denied no-fault benefits based
solely on a "paper review" prepared by a medical provider hired by
State Farm from Aug. 31, 2004, to the present. They seek damages
for all unpaid benefits that were denied through paper review
(capped statutorily at $10,000 per Plaintiff), 18% statutory
interest on past-due medical bills, and attorneys' fees.
The Plaintiffs filed their class action suit in Jefferson Circuit
Court, and the Defendant timely removed the action to the Court.
The Defendant has since filed a Motion to Dismiss or,
Alternatively, for Abstention. First, the Defendant claims that
the Court should dismiss the action under Fed. R. Civ. P. 12(b)(1)
because the Plaintiffs lack standing. It also argues that the
Plaintiffs' claims for statutory interest and attorneys' fees
should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
Alternatively, it argues that the Court should abstain from hearing
the Plaintiffs Pedroso and Arrebato's claims because they have
parallel pending state actions involving the same issue.
The Plaintiffs failed to respond to the Defendant's Motion to
Dismiss, instead filing a Motion for Remand and Attorney Fees. The
Plaintiffs first argue that the Court does not have subject matter
jurisdiction to hear the case. Second, they claim that even if
they do not have standing, the proper remedy is remand rather than
dismissal. Finally, they argue that Defendant's actions have
caused delay and unnecessary work on their behalf and that they are
entitled to attorneys' fees for improper removal pursuant to 28
U.S.C. Section 1447(c).
Judge Boom opines that the Plaintiffs' request for attorney fees
under 28 U.S.C. Section 1447(c) is without merit. The Supreme
Court has provided that absent unusual circumstances, courts may
award attorney's fees under Section 1447(c) only where the removing
party lacked an objectively reasonable basis for seeking removal.
State Farm clearly had a reasonable basis for removal: jurisdiction
was proper under CAFA. The fact that State Farm, post-remand,
filed a Motion to Dismiss for lack of standing does not change it.
Consequently, the Plaintiffs' Motion for Remand and Attorney Fees
is denied.
Next, Judge Boom notes that the Plaintiffs wholly failed to respond
to the Defendant's Motion to Dismiss based on lack of standing.
The Sixth Circuit has held that when a party fails to respond to a
motion or argument therein, the lack of response is grounds for the
district court to assume opposition to the motion is waived, and
grant the motion. Indeed, they only addressed the Defendant's
standing argument belatedly in their Response to the Defendant's
Sur-reply to their Motion to Remand and for Attorney Fees. The
Judge need not address arguments raised for the first time in a
reply (or in tes case a Response to a Sur-Reply) and on this basis
alone, she may grant the Defendant's Motion to Dismiss for lack of
standing. But even on the merits, the Plaintiffs lack standing on
their PIP benefits claim and their claim for 18% statutory interest
and attorney fees fails as a matter of law. The Defendant's Motion
to Dismiss is granted with respect to claims for statutory 18%
interest and attorney fees.
Since the Plaintiffs' claims for additional interest and attorneys'
fees are dismissed, one last question remains: whether to dismiss
the Plaintiffs' claim for unpaid PIP benefits without prejudice or
remand it to state court. The Judge has dismissed the Plaintiffs'
claims for additional interest and attorneys' fees, so the case
consists only of their claims for unpaid PIP benefits. As the
Plaintiffs lack Article III standing for that claim, it will be
remanded to state court.
Accordingly, Judge Boom granted in part the Defendant's Motion to
Dismiss or, Alternatively, for Abstention. The Plaintiffs' claims
for additional interest and attorneys' fees are dismissed pursuant
to Fed. R. Civ. P. 12(b)(6), and the Plaintiffs' claim for unpaid
PIP benefits is dismissed pursuant to Fed. R. Civ. P. 12(b)(1) and
remanded to state court because the Plaintiffs lack Article III
standing for that claim.
The Judge remanded the Plaintiffs' claim for unpaid PIP benefits to
Jefferson Circuit Court. She denied the Plaintiffs' Motion for
Remand and Attorney Fees.
A full-text copy of the Court's July 15, 2020 Memorndum Opinion &
Order is available at https://is.gd/6VUM5k from Leagle.com.
STATE STREET: Class Suit Over Invoicing Practices Ongoing
---------------------------------------------------------
State Street Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on July 27, 2020 for the
quarterly period ended June 30, 2020, that the company remains a
Defendant in a purported class suit related to its invoicing
practices.
In March 2017, a purported class action was commenced against the
company alleging that its invoicing practices violated duties owed
to retirement plan customers under the Employee Retirement Income
Security Act.
In addition, the company received a purported class action demand
letter alleging that its invoicing practices were unfair and
deceptive under Massachusetts law.
State Street said, "A class of customers, or particular customers,
may assert that we have not paid to them all amounts incorrectly
invoiced, and may seek double or treble damages under Massachusetts
law."
No further updates were provided in the Company's SEC report.
State Street Corporation, through its subsidiaries, provides a
range of financial products and services to institutional investors
worldwide. State Street Corporation was founded in 1792 and is
headquartered in Boston, Massachusetts.
STERLING JEWELERS: Cota Sues Over Blind-Inaccessible Web Site
-------------------------------------------------------------
Julissa Cota, individually and on behalf of herself and all others
similarly situated v. STERLING JEWELERS INC., d/b/a KAY JEWELERS, a
Delaware corporation; and DOES 1 to 10, inclusive, Case No.
3:20-cv-01522-JLS-LL (S.D. Cal., Aug. 6, 2020), is brought to
secure redress against the Defendants for their failure to design,
construct, maintain, and operate their Web site to be fully and
equally accessible to and independently usable by the Plaintiff and
other blind or visually impaired people.
The Defendants' denial of full and equal access to their Web site,
https://www.kay.com/, and therefore denial of their products and
services offered thereby and in conjunction with their physical
locations, is a violation of the Plaintiff's rights under the
Americans with Disabilities Act and California's Unruh Civil Rights
Act, according to the complaint. Because the Defendants' Web site
is not fully or equally accessible to blind and visually impaired
consumers in violation of the ADA, the Plaintiff seeks a permanent
injunction to cause a change in the Defendants' corporate policies,
practices, and procedures so that the Defendants' Web site will
become and remain accessible to blind and visually impaired
consumers.
The Plaintiff is a visually impaired and legally blind person, who
requires screen reading software to read Web site content using her
computer.
The Defendant's Web site allows consumers to shop from an
assortment of luxurious, high-quality jewelry from engagement rings
to trendy gold chains, necklaces, rings, and more.[BN]
The Plaintiff is represented by:
Thiago Coelho, Esq.
Bobby Saadian, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Facsimile: (213) 381-9989
Email: thiago@wilshirelawfirm.com
ADA@wilshirelawfirm.com
STEVEN C. ROBERTS: Idzinski Sues Over Failure to Pay Overtime
-------------------------------------------------------------
The case, ELAINE IDZINSKI, individually and on behalf of others
similarly situated, Plaintiff v. STEVEN C. ROBERTS, individually,
Defendant, Case No. 8:20-cv-01653 (M.D. Fla., July 20, 2020) arises
from Defendant's alleged intentional and willful violation of the
Fair Labor Standards Act of 1938.
Plaintiff worked for Defendant as a CAN/Caregiver beginning on or
about January 2017.
According to the complaint, Plaintiff regularly worked substantial
hours in excess of 40 in a workweek and submitted a portion of her
hours to his long-term care insurance carrier per Defendant's order
so that Defendant could obtain reimbursement. However, Defendant
began making inappropriate and offensive advances and propositions
to Plaintiff as Plaintiff became more familiar with Defendant and
over time. Subsequently, Defendant substantially reduced
Plaintiff's hours to as low as 12 hours a week because Plaintiff
insisted to Defendant to stop his offensive behavior and questioned
his pay practices.
Plaintiff alleges that Defendant failed to pay him overtime wages
at one and one-half times her regular rate for all the hours she
worked in excess of 40 in a work week.
Steven C. Roberts is an individual who employed Plaintiff on a
personal basis, exercised the day to day control of operations, and
involved in the payment of his employees. [BN]
The Plaintiff is represented by:
Wolfgang M. Florin, Esq.
Christopher D. Gray, Esq.
FLORIN GRAY BOUZAS OWENS, LLC
16524 Pointe Village Drive, Suite 100
Lutz, FL 33558
Tel: (727) 254-5255
Fax: (727) 483-7942
Emails: wolfgang@fgbolaw.com
chris@fgbolaw.com
STRATHMORE INSURANCE: Select Hospitality Sues Over COVID-19 Losses
------------------------------------------------------------------
Select Hospitality, LLC, on behalf of itself and all others
similarly situated, Plaintiff, v. Strathmore Insurance Company,
Defendant, Case No. 1:20-cv-11414-NMG (D. Mass., July 27, 2020) is
a class action brought by Plaintiff on behalf of itself and all
other persons or entities who own an interest in a business or
restaurant that serves food and beverages on the premises and were
insured by Defendant between March 2020 and the present, with an
insurance policy that does not contain an express virus exclusion,
and that suffered a loss of business income (or other losses or
expense related to business interruption) related to COVID-19
and/or state and local civil authority orders.
In March 2020, the COVID-19 pandemic spread throughout the United
States and caused Plaintiff and all other restaurant businesses to
close their doors as a result of the direct physical loss of or
damage to the property caused by COVID-19 and the dangerous
conditions relating to that damage, and as a result of various
civil authority orders entered by state and local authorities.
Plaintiff and all other restaurant businesses were forced to
suspend their business operations due to their inability to use
their property for their intended purposes due to COVID-19 and the
civil authority orders entered by state and local authorities.
The Defendant's policy expressly provides coverage for loss of
"Business Income" and "Extra Expense" and the consequences of
actions by "Civil Authority." Because of this express coverage,
Plaintiff and the Classes believed their policies, which they had
paid significant premiums for, would protect their businesses from
the unlikely event that a pandemic would render Plaintiff and the
Classes unable to use their properties for their intended purpose
or that state and local governments would issue orders to stop or
substantially restrict their operations in connection with a
pandemic or any other Covered Cause of Loss.
According to the complaint, Defendant has universally denied
coverage to Plaintiff and members of the Classes and have refused
to honor the contractual obligations Strathmore had under the
policies, contrary to the coverage provisions in their insurance
policies.
This is an action for damages and a declaratory judgment arising
out of Plaintiff's insurance coverage claims under its "all risks"
insurance policies sold and insured by Defendant.
Plaintiff Select Hospitality is a Massachusetts limited liability
company where it operates the Grand Tour restaurant.
Strathmore Insurance Company is a New York-based insurance company
which has conducted business in and issued insurance policies in
the Commonwealth of Massachusetts.[BN]
The Plaintiff is represented by:
Edward F. Haber, Esq.
Michelle H. Blauner, Esq.
Ian J. McLoughlin, Esq.
Adam M. Stewart, Esq.
Patrick J. Vallely, Esq.
SHAPIRO HABER & URMY LLP
2 Seaport Lane
Boston, MA 02210
Telephone: (617) 439-3939
Facsimile: (617) 439-0134
E-mail: ehaber@shulaw.com
mblauner@shulaw.com
imcloughlin@shulaw.com
astewart@shulaw.com
pvallely@shulaw.com
SUNRISE SENIOR: Class Cert. Hearing in Heredia Suit Moved to Dec.
-----------------------------------------------------------------
In class action lawsuit captioned as Audrey Heredia as
successor-in-interest to the Estate of Carlos Heredia; Amy Fearn as
successor-in-interest to the Estate of Edith Zack; and Helen Ganz,
by and through her Guardian ad Litem, Elise Ganz; on their own
behalves and on behalf of others similarly situated, v. Sunrise
Senior Living, LLC; Sunrise Senior Living Management, Inc.; and
Does 2-100, Case No. 8:18-cv-01974-JLS-JDE (C.D. Cal.), the Court
has rescheduled the hearing on the Plaintiffs' Motion for Class
Certification, which was set for October 23, 2020, at 10:30 a.m.,
to December 4, 2020 at 10:30 a.m. in Courtroom 10A of the
above-referenced Court, located at 411 West Fourth Street, Santa
Ana, California 92701.
Sunrise is an American operator of assisted living and other houses
for senior citizens.[CC]
The Plaintiffs are represented by:
Kathryn A. Stebner, Esq.
Brian S. Umpierre, Esq.
Sarah Colby
STEBNER AND ASSOCIATES
870 Market Street, Suite 1212
San Francisco, CA 94102
Telephone: (415) 362-9800
Facsimile: (415) 362-9801
E-mail: kathryn@stebnerassociates.com
brian@stebnerassociates.com
sarah@stebnerassociates.com
- and -
Guy B. Wallace, Esq.
Travis C. Close, Esq.
Mark T. Johnson, Esq.
SCHNEIDER WALLACE
COTTRELL KONECKY LLP
2000 Powell Street, Suite 1400
Emeryville, CA 94608
Telephone: (415) 421-7100
Facsimile: (415) 421-7105
E-mail: gwallace@schneiderwallace.com
tclose@schneiderwallace.com
mjohnson@schneiderwallace.com
- and -
Christopher J. Healey, Esq.
DENTONS US LLP
4655 Executive Drive, Suite 700
San Diego, CA 92121-3128
Telephone: (619) 236-1414
Facsimile: (619) 645-5328
E-mail: christopher.healey@dentons.com
- and -
Michael D. Thamer, Esq.
LAW OFFICES OF MICHAEL D.
THAMER
12444 South Highway 3
Post Office Box 1568
Callahan, CA 96014-1568
Telephone: (530) 467-5307
Facsimile: (530) 467-5437
E-mail: michael@trinityinstitute.com
- and -
Robert S. Arns, Esq.
Shounak S. Dharap, Esq.
Robert C. Ross, Esq.
THE ARNS LAW FIRM
515 Folsom Street, 3rd Floor
San Francisco, CA 94105
Telephone: (415) 495-7800
Facsimile: (415) 495-7888
E-mail: ddl@arnslaw.com
ssd@arnslaw.com
rcf@arnslaw.com
- and -
W. Timothy Needham, Esq.
JANSSEN MALLOY LLP
730 Fifth Street
Eureka, CA 95501
Telephone: (707) 445-2071
Facsimile: (707) 445-8305
E-mail: tneedham@janssenlaw.com
- and -
David T. Marks, Esq.
MARKS, BALETTE, GIESSEL &
YOUNG, P.L.L.C.
7521 Westview Drive
Houston, TX 77055
Telephone: (713) 681-3070
E-mail: davidm@marksfirm.com
- and -
Stefanie Warren, Esq.
TRAILS LAW GROUP
3170 Fourth Avenue, Suite 250
San Diego, CA 92103
Telephone: (619) 501-4750
E-mail: swarren@trailslawgroup.com
- and -
Julie C. Erickson, Esq.
ERICKSON KRAMER OSBORNE
182 Howard Street
San Francisco, CA 94105
Telephone: (415) 635-0631
Facsimile: (415) 599-8088
E-mail: julie@eko.law
Attorneys for the Defendants Sunrise Senior Living, LLC, and
Sunrise Senior Living Management, Inc., are:
Joseph Gorman, Esq.
Michele L. Maryott, Esq.
Ashley Allyn, Esq.
GIBSON, DUNN & CRUTCHER LLP
3161 Michelson Drive
Irvine, CA 92612
Telephone: (949) 451-3800
Facsimile: (949) 451-4220
E-mail: jgorman@gibsondunn.com
mmaryott@gibsondunn.com
aallyn@gibsondunn.com
TAILORED BRANDS: Suit by Airline Staff vs Twin Hill Underway
------------------------------------------------------------
Tailored Brands, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on July 27, 2020 for the
quarterly period ended May 2, 2020, that Twin Hill, a company
subsidiary, continues to defend against a class action suit
initiated by two American Airlines employees.
On August 2, 2017, two American Airlines, Inc. employees, Thor
Zurbriggen and Dena Catan, filed a putative class action lawsuit
against the Company's then-existing subsidiary Twin Hill in the
United States District Court for the Northern District of Illinois
(Case No. 1:17-cv-05648).
The complaint alleged claims for strict liability, negligence, and
medical monitoring based on allegedly defective uniforms Twin Hill
supplied to American Airlines for its employees.
On September 28, 2017, the plaintiffs filed an amended complaint
adding nine additional named plaintiffs, adding American Airlines
as a defendant, and adding claims for civil battery and intentional
infliction of emotional distress. Plaintiffs filed a Second Amended
Complaint on October 4, 2018 on behalf of 39 named plaintiffs,
adding PSA Airlines, Inc. and Envoy Air Inc. as defendants, adding
new factual allegations and adding a new claim of fraud by the
defendants against American Airlines.
The Second Amended Complaint included plaintiffs from the Onody
(Case No. 1:18-cv-02303) and Joy (Case No. 1:18-cv-05808) matters
we reported in prior filings. As a result, on October 16, 2018, the
judge dismissed the separate Onody and Joy matters.
The company timely answered the Second Amended Complaint and the
matter will proceed in due course. The company believes that any
lawsuit filed on the basis of the safety of the Twin Hill uniforms
supplied to American Airlines is without merit, and the company
intends to contest this action vigorously. Twin Hill has
substantial and convincing evidence of the uniforms' safety and
fitness for their intended purpose, and the company believes that
there is no evidence linking any of the plaintiffs' alleged
injuries to its uniforms.
The range of loss, if any, is not reasonably estimable at this
time.
Tailored Brands said, "We do not currently believe, however, that
it will have a material adverse effect on our financial position,
results of operations or cash flows."
No further updates were provided in the Company's SEC report.
Tailored Brands, Inc. operates as a specialty apparel retailer the
United States and Canada. It operates through two segments, Retail
and Corporate Apparel. The company was formerly known as The Men's
Wearhouse, Inc. and changed its name to Tailored Brands, Inc. in
February 2016. Tailored Brands, Inc. was founded in 1973 and is
based in Houston, Texas.
TAPESTRY INC: Settlement in Garcia Suit Gets Final Approval
-----------------------------------------------------------
In the case, NORMA GARCIA and KARINA ANDRADE, individually, on a
representative basis, and on behalf of all others similarly
situated, Plaintiffs, v. TAPESTRY, INC., a Maryland Corporation
which will do business in California as Coach Leatherware
California, Inc. DBA Coach; and DOES 1 through 10, inclusive,
Defendants, Case No. ED CV 18-1537-DMG (SHKx) (C.D. Cal.), Judge
Dolly M. Gee of the U.S. District Court for the Central District of
California has entered Final Judgment and Order granting the
Plaintiffs' Motion for Final Approval of the Settlement Agreement,
and their Motion for Attorneys' Fees, Costs, And Incentive Award.
The Court approved the Settlement, as set forth in the Settlement
Agreement and each of the releases and other terms, as fair, just,
reasonable, and adequate as to the Parties. The Parties are
directed to perform in accordance with the terms set forth in the
Settlement Agreement.
The Parties are to bear their own costs, except as otherwise
provided in the Settlement Agreement.
For purposes of effectuating the Order and Judgment, the following
Settlement Class is certified:
All non-exempt employees employed by Tapestry, Inc., at any
Coach branded store in California as an Associate Store
Manager, Assistant Store Manager, Acting Associate Store
Manager, or Acting Assistant Store Manager at any time from
June 13, 2014 to Jan. 24, 2020.
The Class Counsel sought an award of attorneys' fees equal to
one-third of the Gross Settlement Amount, or $331,666.66,
litigation costs and expenses of $30,609.35, settlement
administrator costs of $15,000 to CPT Group, a PAGA payment to the
LWDA in the amount of $15,000, and a service award to Plaintiffs
and Class Representatives Norma Garcia and Karina Andrade of
$10,000 each. The Defendant does not oppose these requests.
Because the Court's review of Class Counsel's timesheets reveals
some block billing, several double-billed amounts in January 2019,
and excessive hours billed for travel at the attorneys' regular
rates, and because the results for the Class are relatively modest
when compared to other similar class settlements for which she has
granted one-third of the fund as attorneys' fees, Judge Gee granted
attorneys' fees in the amount of 30% of the Gross Settlement
Amount, or $298,700.
Judge Gee finds that the Gross Settlement Amount is fair,
reasonable, and adequate, and awarded the payments set forth from
the Settlement Amount:
(i) $298,700 to Class Counsel for attorneys' fees;
(ii) $30,609.35 to the Class Counsel for costs/expenses;
(iii) up to $15,000 to the Settlement Administrator, CPT Group;
(iv) $15,000 to the LWDA as PAGA penalties;
(v) $10,000 each to Class Representatives Norma Garcia and
Karina Andrade as a Service Award;
(vi) no more than $29,428.96 for the employer's share of
payroll taxes;
(vii) after deducting the foregoing payments, the remainder will
form the Net Settlement Amount payable to Participating
Class Members for the value of their Individual Settlement
Amounts in accordance with the Settlement Agreement and as
calculated by the Settlement Administrator.
The Defendant is directed to make payments in accordance with the
Settlement Agreement, by and through the Settlement Administrator,
in accordance with the Settlement Agreement. The Settlement
Administrator is directed to calculate the Individual Settlement
Amounts from the Net Settlement Amount and issue all payments in
accordance with the Settlement Agreement.
The Court approved the handling of unclaimed funds set forth in the
Motion for Final Approval. Specifically, any unclaimed funds in
the Settlement Administrator's account as a result of a failure to
timely cash a settlement check will be issued to the State
Controller in the name of the Participating Class Member.
A full-text copy of the District Court's May 29, 2020 Final
Judgment & Order is available at https://is.gd/j3aNjp from
Leagle.com.
TESLA INC: Appeal in Investor Suit Over Model 3 Production Pending
------------------------------------------------------------------
Tesla Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 28, 2020 for the quarterly period
ended June 30, 2020, that the parties in a class action related to
the company's production of Model 3 cars are awaiting a decision
from the U.S. Court of Appeals for the Ninth Circuit.
On October 10, 2017, a purported stockholder class action was filed
in the U.S. District Court for the Northern District of California
against Tesla, two of its current officers, and a former officer.
The complaint alleges violations of federal securities laws and
seeks unspecified compensatory damages and other relief on behalf
of a purported class of purchasers of Tesla securities from May 4,
2016 to October 6, 2017.
The lawsuit claims that Tesla supposedly made materially false and
misleading statements regarding Tesla's preparedness to produce
Model 3 vehicles.
Plaintiffs filed an amended complaint on March 23, 2018, and
defendants filed a motion to dismiss on May 25, 2018. The court
granted defendants' motion to dismiss with leave to amend.
Plaintiffs filed their amended complaint on September 28, 2018, and
defendants filed a motion to dismiss the amended complaint on
February 15, 2019. The hearing on the motion to dismiss was held on
March 22, 2019, and on March 25, 2019, the Court ruled in favor of
defendants and dismissed the complaint with prejudice.
On April 8, 2019, plaintiffs filed a notice of appeal and on July
17, 2019 filed their opening brief. We filed our opposition on
September 16, 2019. A hearing on the appeal before the U.S. Court
of Appeals for the Ninth Circuit was held on April 30, 2020, and
the parties await a ruling.
Tesla said, "We continue to believe that the claims are without
merit and intend to defend against this lawsuit vigorously. We are
unable to estimate the possible loss or range of loss, if any,
associated with this lawsuit."
On October 26, 2018, in a similar action, a purported stockholder
class action was filed in the Superior Court of California in Santa
Clara County against Tesla, Elon Musk, and seven initial purchasers
in an offering of debt securities by Tesla in August 2017.
The complaint alleges misrepresentations made by Tesla regarding
the number of Model 3 vehicles Tesla expected to produce by the end
of 2017 in connection with such offering and seeks unspecified
compensatory damages and other relief on behalf of a purported
class of purchasers of Tesla securities in such offering. Tesla
thereafter removed the case to federal court.
On January 22, 2019, plaintiff abandoned its effort to proceed in
state court, instead filing an amended complaint against Tesla,
Elon Musk and seven initial purchasers in the debt offering before
the same judge in the U.S. District Court for the Northern District
of California who is hearing the above-referenced earlier filed
federal case.
On February 5, 2019, the Court stayed this new case pending a
ruling on the motion to dismiss the complaint in such earlier filed
federal case. After such earlier filed federal case was dismissed,
defendants filed a motion on July 2, 2019 to dismiss this case as
well.
This case is now stayed pending a ruling from the appellate court
on such earlier filed federal case with an agreement that if
defendants prevail on appeal in such case, this case will be
dismissed.
Tesla said, "We believe that the claims are without merit and
intend to defend against this lawsuit vigorously. We are unable to
estimate the possible loss or range of loss, if any, associated
with this lawsuit."
Tesla Inc. designs, manufactures, and sells high-performance
electric vehicles and electric vehicle powertrain components. The
Company owns its sales and service network and sells electric
powertrain components to other automobile manufacturers. Tesla
serves customers worldwide. The company is based in Palo Alto,
California.
TESLA INC: March 2022 Trial in Class Suit Over 'Go Private' Tweet
-----------------------------------------------------------------
Tesla Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on July 28, 2020 for the quarterly period
ended June 30, 2020, that the trial in the consolidated purported
stockholder class action suit related to Elon Must's August 7, 2018
Twitter post that he was considering taking Tesla private is set
for March 2022.
Between August 10, 2018 and September 6, 2018, nine purported
stockholder class actions were filed against Tesla and Elon Musk in
connection with Mr. Musk's August 7, 2018 Twitter post that he was
considering taking Tesla private.
All of the suits are now pending in the U.S. District Court for the
Northern District of California.
Although the complaints vary in certain respects, they each purport
to assert claims for violations of federal securities laws related
to Mr. Musk's statement and seek unspecified compensatory damages
and other relief on behalf of a purported class of purchasers of
Tesla's securities.
Plaintiffs filed their consolidated complaint on January 16, 2019
and added as defendants the members of Tesla's board of directors.
The now-consolidated purported stockholder class action was stayed
while the issue of selection of lead counsel was briefed and argued
before the Ninth Circuit.
The Ninth Circuit ruled regarding lead counsel. Defendants filed a
motion to dismiss the complaint on November 22, 2019. The hearing
on the motion was held on March 6, 2020. On April 15, 2020, the
Court denied defendants' motion to dismiss. Trial is set for March
2022.
Tesla said, "We believe that the claims have no merit and intend to
defend against them vigorously. We are unable to estimate the
potential loss, or range of loss, associated with these claims."
Tesla Inc. designs, manufactures, and sells high-performance
electric vehicles and electric vehicle powertrain components. The
Company owns its sales and service network and sells electric
powertrain components to other automobile manufacturers. Tesla
serves customers worldwide. The company is based in Palo Alto,
California.
TRUE GRADE: Ortueta Sues Over Unpaid Overtime, Termination
----------------------------------------------------------
ANTHONY ORTUETA, and other similarly situated individuals,
Plaintiff (s), v. TRUE GRADE, LLC, and ANTONIO MALAVE,
individually, Defendants, Case No. 1:20-cv-23138-UU (S.D. Fla.,
July 29, 2020), is an action against Defendants to recover money
damages for unpaid overtime wages pursuant to the Fair Labor
Standards Act, 29 U.S.C. Section 201-219 and the Florida Private
Sector Whistleblower's Act, Section 448.10.
Plaintiff was hired as a non-exempt, full-time, warehouse employee
from approximately January 2017 to July 6, 2020, or 181 weeks. At
all times during his employment, the Defendants were able to track
the number of hours worked by Plaintiff and other similarly
situated individuals. Even though Plaintiff worked more than 40
hours, he was not paid for overtime hours during a substantial
number of weeks.
Meanwhile, on or about June 25, 2020, while working at the
warehouse, the owner of the business Antonio Malave approached
Plaintiff and ordered him to change the expiration dates on a lot
of frozen swai fish fillets sold to a cruise line. Plaintiff
refused to participate in the illegal activity and did not follow
the orders of his superior. As a result, on or about July 6, 2020,
Manager Jimmy Hidalgo stated that owner Malave said to fire
Plaintiff because the business was slow, which was not true. The
actions of Defendants constitute a violation of the Florida Private
Whistleblower's Act, the lawsuit asserts.
True Grade, LLC is a Miami, Florida-based food and beverage
wholesaler distributor.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd. Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
TRUEACCORD: Court Dismisses Zuniga Suit Alleging FDCPA Violations
-----------------------------------------------------------------
The U.S. District Court for the District of New Mexico issued a
Memorandum Opinion and Order granting the Defendant's Motion for
Summary Judgment in the case captioned MARISA ZUNIGA, on behalf of
herself and all others similarly situated v. TRUEACCORD, Case No.
18-683 KG/KRS (D.N.M.).
In February 2017, the Plaintiff entered into a loan agreement with
Golden Valley Lending. After the Plaintiff failed to repay the
loan, the Defendant began debt collection efforts on behalf of
Golden Valley Lending's parent company, Mountain Summit Financial,
Inc. The Plaintiff admits that she owes $1,585.00 on the Golden
Valley Lending loan.
On March 2, 2018, the Defendant sent an email to the Plaintiff
regarding the $1,585.00 balance on the Golden Valley Lending loan.
In that email, the Defendant offered "payment options" that the
Plaintiff could review by clicking on a "convenient online payment
option" hyperlink.
The Plaintiff alleges that the Defendant violated the Fair Debt
Collection Practices Act (FDCPA) by initially presenting her with
installment options that exceeded the balance on the Golden Valley
Lending loan. Specifically, Plaintiff brings two FDCPA counts on
behalf of herself and a putative class.
In Count I, the Plaintiff alleges a violation of 15 U.S.C. Section
1692e, which prohibits a debt collector from using any false,
deceptive, or misleading representation or means in connection with
the collection of any debt. In Count II, the Plaintiff alleges a
violation of 15 U.S.C. Section 1692f, which prohibits a debt
collector from using unfair or unconscionable means to collect a
debt.
The Defendant moves for summary judgment on Counts I and II. The
Defendant argues first that the Plaintiff lacks Article III
standing to bring this lawsuit because she has not suffered an
injury in fact. Second, the Defendant argues that the first linked
page did not make any false, deceptive, or misleading statements in
violation of Section 1692e. Third, the Defendant argues that, if it
did make any false, deceptive, or misleading statements in the
first linked page, those statements were not material and, thus,
not in violation of Section 1692e. Finally, Defendant argues that
it is entitled to a bona fide error affirmative defense as to
Counts I and II.
According to the Court's Memorandum Opinion and Order, the
Defendant has carried its burden of demonstrating that no dispute
of material fact exists as to all three elements of the bona fide
error affirmative defense. Hence, the Court concludes, as a matter
of law, that the Defendant is entitled to summary judgment on
Counts I and II on the basis of that affirmative defense. In light
of that conclusion, the Court denies the Plaintiff's Motion for
Certification as a Class Action as moot. The lawsuit will be
dismissed with prejudice.
A full-text copy of the District Court's June 1, 2020 Memorandum
Opinion and Order is available at https://tinyurl.com/y8duhly6 from
Leagle.com.
TWIN MOUNT: Santana Seeks to Recover Overtime Wages Under FLSA
--------------------------------------------------------------
Benjamin Santana, individually and on behalf of others similarly
situated v. TWIN MOUNT SERVICE STATION INC. (D/B/A TWIN MOUNT
SERVICE), RAFAEL SANTANA, and YNDIRA BELLO, Case No. 1:20-cv-06171
(S.D.N.Y., Aug. 6, 2020), seeks to recover unpaid overtime wages
pursuant to the Fair Labor Standards Act of 1938 and the New York
Labor Law.
According to the complaint, the Plaintiff worked for the Defendants
in excess of 40 hours per week, without appropriate overtime
compensation for the hours that he worked. Rather, the Defendants
failed to maintain accurate recordkeeping of the hours worked and
failed to pay Plaintiff Santana appropriately for any hours worked,
either at the straight rate of pay or for any additional overtime
premium. The Defendants maintained a policy and practice of
requiring the Plaintiff to work in excess of 40 hours per week
without providing the overtime compensation required by federal and
state law and regulations.
The Plaintiff was employed as a general assistant at the
Defendants' convenient store.
The Defendants own, operate, or control a convenient store, located
in Bronx, New York, under the name "Twin Mount Service."[BN]
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Phone: (212) 317-1200
Facsimile: (212) 317-1620
UNITED STATES: Subramanya Seeks Class Status for Immigration Suit
-----------------------------------------------------------------
In class action lawsuit captioned as RANJITHA SUBRAMANYA,
individually and on behalf of a class of those similarly situated,
et al., v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, et
al., Case No. 2:20-cv-03707-ALM-EPD (S.D. Ohio), the Plaintiffs ask
the Court for an order:
1. granting Plaintiff's Class Certification Motion on an
expedited basis; and
2. appointing Caroline Gentry, Robert Cohen, David Shouvlin
and Kirsten Fraser of Porter Wright Morris & Arthur, LLP
as class counsel in this case.
U.S. Citizenship and Immigration Services is an agency of the
United States Department of Homeland Security that administers the
country's naturalization and immigration system.[CC]
The Plaintiffs are represented by:
Caroline H. Gentry, Esq.
Robert H. Cohen, Esq.
David P. Shouvlin, Esq.
Kirsten R. Fraser, Esq.
PORTER WRIGHT MORRIS & ARTHUR LLP
One South Main Street, Suite 1600
Dayton, OH 45402
Telephone: 937 449 6748 (work)
Telephone: 937 287 8983 (cell)
Facsimile: 937 449 6820
E-mail: cgentry@porterwright.com
rcohen@porterwright.com
dshouvlin@porterwright.com
kfraser@porterwright.com
UNIVISTA INSURANCE: Nitzany Sues Over Unsolicited Telemarketing
---------------------------------------------------------------
YATIR NITZANY, individually and on behalf of all others similarly
situated, Plaintiff, vs. UNIVISTA INSURANCE CORPORATION, a Florida
corporation, Defendant, Case No. 1:20-cv-23148-KMM (S.D. Fla., July
29, 2020), alleges that Defendant transmitted prerecorded messages
to the cellular telephones of Plaintiff and others, promoting
Defendant's services and goods, in violation of the Telephone
Consumer Protection Act, 47 U.S.C. Section 227 et seq.
Defendant engages in unsolicited marketing, harming thousands of
consumers in the process to promote its services being an insurance
brokerage.
Plaintiff seeks injunctive relief to halt Defendant's illegal
conduct which has resulted in the invasion of privacy, harassment,
aggravation, and disruption of the daily life of thousands of
individuals. Plaintiff also seeks statutory damages on behalf of
himself and members of the class, and any other available legal or
equitable remedies.
Univista Insurance Corporation is a Florida-based insurance
company.[BN]
The Plaintiff is represented by:
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 705
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
20900 NE 30th Ave., Suite 417
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
- and -
Ignacio J. Hiraldo, Esq.
IJH LAW
1200 Brickell Ave Suite 1950
Miami, FL 33131
Telephone: (786) 496-4469
E-mail: ijhiraldo@ijhlaw.com
- and -
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, FL 33301
Telephone: (954) 533-4092
E-mail: MEisenband@Eisenbandlaw.com
US FINANCIAL: Farris Has Conditional Leave to File Docs Under Seal
------------------------------------------------------------------
Judge Matthew W. McFarland of the U.S. District Court for the
Southern District of Ohio, Western Division, Cincinnati,
conditionally granted the Plaintiff's Motion for Leave to File
Under Seal certain items relating to her class certification motion
on the grounds that they contain confidential information or trade
secrets in the case captioned VIVIAN FARRIS; Trustee for Wirt Adams
Yerger, Jr. Legacy Trust; Individually and on behalf of all those
similarly situated, Plaintiffs, v. U.S. FINANCIAL LIFE INSURANCE
COMPANY, Defendant, Case No. 1:17-cv-417 (S.D. Ohio).
The case came before the Court on the Plaintiff's motion for leave
to file under seal. The Plaintiff's motion for class certification
was due July 15, 2020.
The parties conferred to determine whether the Plaintiff needed to
seek leave of the Court to file these documents under seal. The
Defendant maintained that these documents contain or reference
confidential trade secrets and other confidential information
regarding pricing and actuarial evaluations of insurance policies.
Judge McFarland finds that the broad scope of the documents the
parties wish to seal does not strike him as narrowly tailored. The
parties wish to seal five depositions with exhibits, two reports
with exhibits, something that seems to be a life insurance form,
and the Plaintiff's Memorandum in Support of Class Certification.
To the parties' credit, they do not seek to seal every exhibit to
the Memorandum for Class Certification; they seem to limit the seal
only to those documents that contain confidential trade secrets.
That shows a slight attempt to narrowly tailor the seal. But it
does not "analyze in detail" those documents. Furthermore, the
documents it does seek to seal, it seeks to seal them in their
entirety.
According to Judge McFarland, sealing off an entire deposition and
all of its exhibits may be justified, but the parties must
demonstrate that such a seal is necessary. If sealing an entire
deposition turns out to be broader than necessary, the parties may
redact the sensitive portions.
Nevertheless, Judge McFarland understands that the Memorandum in
Support of Class Certification was due July 15, 2020. Accordingly,
he said he will allow the Plaintiff to file the proposed documents
under seal on the condition that the seal will expire 14 days from
issuance of the order unless one or both parties successfully moves
to seal the filings under the proper standard set forth in Shane
Group and its progeny and the Court's Standing Order Section
III.C.; or one or both parties successfully moves to extend the
conditional period.
For these reasons, Judge McFarland conditionally granted the
Plaintiff's Motion for Leave to File Under Seal.
A full-text copy of the Court's July 15, 2020 Order is available at
https://is.gd/ajXE6W from Leagle.com.
VICVIC CORPORATION: Faces Scotto Wage and Hour Suit in New York
---------------------------------------------------------------
Robert M. Scotto, individually and on behalf of all others
similarly situated v. VICVIC CORPORATION d/b/a SEVENTH STREET CAFE,
and VICTOR SCOTTO, as an individual, Case No. 2:20-cv-03544
(E.D.N.Y., Aug. 6, 2020), is brought against the Defendants to
recover damages for egregious violations of state and federal wage
and hour laws arising out of the Plaintiff's employment with the
Defendants.
Although the Plaintiff worked for 50 to 60 or more hours per week
during his employment by the Defendants, the Defendants did not pay
the Plaintiff time and a half for hours worked over 40, a blatant
violation of the overtime provisions contained in the Fair Labor
Standards Act and New York Labor Law, according to the complaint.
The Defendant also willfully failed to post notices of the minimum
wage and overtime wages requirements in a conspicuous place at the
location of their employees as required by both the NYLL and the
FLSA.
The Plaintiff was employed by the Defendants as a manager.
VICVIC CORPORATION, doing business as SEVENTH STREET CAFE, is a
corporation organized under the laws of New York with a principal
executive office located in Garden City, New York.[BN]
The Plaintiff is represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80—02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Phone: 718-263-9591
WALLER COUNTY, TX: Court Denies Summary Judgment Bid in Allen Suit
------------------------------------------------------------------
In the case, JAYLA ALLEN, et al., Plaintiffs, v. WALLER COUNTY,
TEXAS, et al., Defendants, Civil Action No. 4:18-cv-03985 (S.D.
Tex.), Judge Charles Eskridge of the U.S. District Court for the
Southern District of Texas, Houston Division, denied the
Defendants' motion for summary judgment.
The Plaintiffs are minority students and a student and alumni
organization at Prairie View A&M University. Waller County
assigned fewer hours of early voting in the October 2018 election
to PVAMU than those received by some other areas in the County.
The Plaintiffs assert that it violated their rights under the
Fourteenth, Fifteenth, and Twenty-Sixth Amendments of the United
States Constitution and the Voting Rights Act.
Waller County abuts the northwest border of Harris County, roughly
50 miles from Houston. PVAMU is the only university in the County.
It is a historically Black university of around 8,000 students.
Eighty percent of the students are Black. This corresponds to the
demographics of the City of Prairie View, where 80% of the
voting-age population is Black and 54% are aged 18 to 20. This
stands in contrast with the population of the County as a whole,
where 52% are White and 14% are aged 18 to 20. Numerous other
statistical and demographic comparisons are set out in the amended
complaint.
PVAMU students disproportionately engage in early voting. The
voting results published by Waller County for the March 2018
primary indicate that 64% of PVAMU students voted early as compared
to 43% countywide.
The City of Prairie View has no public transportation. The
individual Plaintiffs and many PVAMU students don't own cars. The
Plaintiffs argue that it makes travel throughout Waller County
uniquely difficult for PVAMU students. PVAMU does have a shuttle.
It stops at the on-campus Memorial Student Center at PVAMU. But it
doesn't appear to go to the Waller County Community Center a short
distance off campus.
The two main political parties active in Waller County are the
Democratic and Republican parties. Eason consulted with the local
chairs of both parties in planning for the 2018 election in her
role as the County Elections Administrator. She created a plan of
early voting and presented it to the local chairs for
consideration, both of whom ultimately approved it after changes.
Neither Eason nor the party chairs consulted any student or
administrator representative from PVAMU.
The initial proposal was for early voting to take place at the
PVAMU Memorial Student Center from Wednesday to Friday, October
24th through 26th, with additional voting at the Waller County
Community Center the following Monday and Tuesday, October 29th and
30th. The Democratic Party chair requested this be changed to
avoid any conflicts with homecoming celebrations at PVAMU. Eason
then revised the early-voting plan to move all early voting at
PVAMU from the first to the second week.
The Commissioners Court adopted the revised voting plan on Sept. 5,
2018. The amended complaint includes a chart of the early-voting
plan as posted to the Waller County website. It indicates the
early-voting locations and times at what are the five largest
communities in Waller County--including Brookshire, Hempstead,
Katy, and Waller, in addition to the City of Prairie View. The
plan made Prairie View the only one of these with no early voting
during the first week. Concern also arose that Prairie View had
fewer early-voting hours than the other large communities in Waller
County.
The Commissioners Court held a public meeting on Oct. 17, 2018 to
address possible changes. Eason recommended adding additional
hours at PVAMU and the Prairie View City Hall. This would have
included a new on-campus location at the University Square.
Disagreement abounded. The Commissioners Court ultimately made no
changes to the voting plan.
The Plaintiffs filed suit five days later--on Oct. 22, 2018, the
date on which early voting began. The Commissioners Court in
response met two days later in emergency session on Oct. 24, 2018.
It adopted and implemented additional early-voting hours for the
City of Prairie View. This included expanded voting hours from
7:00 a.m. to 7:00 p.m. on the days already designated at the PVAMU
Memorial Student Center during the second week. And it included
voting at the additional location of Prairie View City Hall between
noon and 5:00 p.m. on Sunday, October 28th.
The Plaintiffs argue that PVAMU students still received no
on-campus voting opportunities during the first week, no on-campus
weekend hours, and no additional on-campus early-voting days during
the second week. They allege that this establishes a
discriminatory effect under the Voting Rights Act, intentional
discrimination under the Voting Rights Act and under the Fourteenth
and Fifteenth Amendments, and intentional discrimination under the
Twenty-Sixth Amendment. They also assert a hybrid claim under the
Fourteenth, Fifteenth, and Twenty-Sixth Amendments specific to
Black students aged eighteen to twenty.
The Defendants moved for summary judgment in January 2020. Hearing
was delayed due to the intervening COVID-19 pandemic. The Court
heard extensive argument by videoconference on June 5, 2020. The
motion was denied at conclusion of the hearing upon finding that
disputes of material fact do exist. The Court directed the parties
to begin preparing for trial and advised that the Memorandum and
Order would follow to set out the Court's reasoning as an aid to
trial preparations.
The Plaintiffs bring a claim for discriminatory effect on Black
student voters due to the failure of Waller County to provide
adequate on-campus early voting in the 2018 election. They
describe a history of discrimination in Waller County under Voting
Rights Act litigation in the Southern District of Texas. The
Defendants don't attempt to dispute that history, instead simply
stating that it is only one factor that may be relevant to
discriminatory intent. Likewise, neither party appears to dispute
the facts underlying the sequence of events leading up to the
decision by the Commissioners Court.
Judge Eskridge holds that the primary dispute is over what weight
should be given to the legislative history and contemporary
statements by the Commissioners Court. It is a dispute of material
fact that will likely feature heavily at trial. It requires
discernment of facts and weighing of credibility. And it precludes
resolution on summary judgment.
The third cause of action brings a claim for violations of the
Twenty-Sixth Amendment under 42 USC Section 1983. The Plaintiffs
assert that the limitation of early voting on the PVAMU campus
neither served nor was rationally related to any compelling state
interest, and that as such Defendants intentionally discriminated
against Plaintiffs based on their age. The Defendants dispute
this, arguing that no burden was placed on the Plaintiffs. They
additionally dispute whether any evidence even supports a
conclusion of discriminatory intent by the Commissioners Court in
the setting of early-voting hours to disadvantage Plaintiffs on
account of their age.
Judge Eskridge directed the parties to more concretely brief with
pretrial submissions the standard for analyzing the claim of
violation of the Twenty-Sixth Amendment at issue. As he noted, the
parties disagree whether the early-voting plan evinces
discrimination by abridgement of the voting rights of the only
concentration of students in Waller County between the ages of 18
and 20. Much of it follows in line with their arguments regarding
racial discrimination. As there, genuine disputes of material fact
exist. And the extent and credibility of any evidence of illicit
intent again precludes summary judgment and must be evaluated at
trial.
The fourth cause of action states a claim for intent to
discriminate against the specific class of Black voters aged 18 to
20. The Plaintiffs assert what they characterize as a blended
right protected under the Fourteenth, Fifteenth, and Twenty-Sixth
Amendments read together.
Judge Eskridge will allow the claim to go forward for evidentiary
development at trial. But the parties are directed to brief the
legal aspects of the claim more concretely with their pretrial
submissions. And the Plaintiffs should pay particular attention to
developing facts--along with rights and remedies--that distinguish
the hybrid claim from each of its constituent components. The
Fifth Circuit teaches in Veasey that a federal court shouldn't
decide a constitutional question if some other ground exists upon
which to dispose of the case. The Judge reserves judgment on
whether it will need to reach the claim and, if reached, whether
such hybrid claim is cognizable.
Based on the foregoing, Judge Eskridge concludes that the
Defendants assert that no right of PVAMU students to vote was
denied or abridged by the decision to limit early-voting hours at
PVAMU. It may well prove to be true. But the record before the
Court is inadequate to reach that conclusion as a matter of law.
The Plaintiffs will have their day in court to fully develop a
factual record at trial of these important claims. Accordingly, he
denied the Defendants' motion for summary judgment.
A full-text copy of the Court's July 15, 2020 Order is available at
https://is.gd/nuTWYz from Leagle.com.
WASHINGTON POST: Jordan Sues Over Auto Renewal of Subscription
--------------------------------------------------------------
The case, DEBORAH JORDAN, individually and on behalf of all others
similarly situated v. WP COMPANY LLC, d/b/a THE WASHINGTON POST,
Defendant, Case No. 4:20-cv-05218 (N.D. Cal., July 29, 2020),
arises from the Defendant's conversion, unjust enrichment,
negligent misrepresentation, fraud, and violations of California's
Unfair Competition Law, False Advertising Law, and Consumers Legal
Remedies Act.
According to the complaint, the Defendant is engaged in an illegal
scheme of automatically renewing subscriptions for its newspaper,
The Washington Post. The Defendant allegedly enrolls consumers in a
program that automatically renews customers' subscriptions from
month-to-month or year-to-year when they sign up for The Washington
Post, which results in monthly or annual charges to the consumer's
credit card or third-party payment account.
According to the complaint, the Defendant violates various
consumers laws in California by: (i) failing to present the
automatic renewal offer terms in a clear and conspicuous manner and
in visual proximity to the request for consent to the offer before
the subscription or purchasing agreement is fulfilled; (ii)
charging consumers' payment method without first obtaining their
affirmative consent to the agreement containing the automatic
renewal offer terms; and (iii) failing to provide an acknowledgment
that includes the automatic renewal offer terms, cancellation
policy, and information regarding how to cancel in a manner that is
capable of being retained by the consumer.
The Plaintiff and Class members lost money or property as a result
of the Defendant's violations because they would not have purchased
the subscriptions on the same terms if the true facts were known
about the product and the subscriptions do not have the
characteristics as promised by the Defendant.
WP Company LLC, d/b/a The Washington Post, is a newspaper
publishing company with its principal place of business at 1301 K
Street NW, Washington, D.C. [BN]
The Plaintiff is represented by:
Neal J. Deckant, Esq.
Frederick J. Klorczyk III, Esq.
BURSOR & FISHER, P.A.
1990 North California Boulevard, Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ndeckant@bursor.com
fklorczyk@bursor.com
WOODBOLT DISTRIBUTION: Metague Balks at Deceptive Marketing
-----------------------------------------------------------
The case, DANIEL METAGUE, on behalf of himself and all others
similarly situated, Plaintiff, v. Woodbolt Distribution, LLC, d/b/a
Nutrabolt, 3891 South Traditions Drive Bryan, TX 77807 Defendant,
Case No. 8:20-cv-02186-PX (D. Md., July 28, 2020) arises from the
deceptive practices of Defendant in its manufacture and sale of
nutritional powders containing branched-chain amino acids labeled
"XTEND Energy" and advertised as containing "0 calories," in
violation of the Maryland Consumer Protection Act ("MCPA"), Md.
Code, Com. Law Sections 13-101, et seq.
According to the complaint, Defendant's representations regarding
the number of calories in the Product is deceptive. Independent
testing revealed that the Product contained approximately 366
calories per 100 grams. Assuming a serving size of 11.6 grams, each
serving contains approximately 42 calories, significantly more than
the "0" calories as advertised. Maryland consumers of Defendant's
products, such as Plaintiff, have been, and continue to be, misled
into purchasing Defendant's nutritional powders with the belief
that they do not contain any calories.
Defendant continued to sell its products with misleading labels
despite knowing the inaccuracy of such statements. Defendant chose
and continues to choose financial gain at the expense of consumers
by concealing and omitting disclosure of this critical
misrepresentation to consumers, who, like Plaintiff, purchase the
Product for personal use.
Woodbolt Distribution, LLC, d/b/a Nutrabolt, is a
Texas-headquartered company that makes and distributes health
supplements, energy drinks, and nutritional protein powders,
throughout the United States and specifically to consumers in the
state of Maryland.[BN]
The Plaintiff is represented by:
Nicholas A. Migliaccio, Esq.
Jason S. Rathod, Esq.
Erick J. Quezada, Esq.
412 H Street NE, Suite 302
Washington, DC 20002
Telephone: (202) 470-3520
E-mail: nmigliaccio@classlawdc.com
jrathod@classlawdc.com
equezada@classalwdc.com
- and -
D. Aaron Rihn, Esq.
Robert Pierce & Associates, P.C.
2500 Gulf Tower 707 Grant Street
Pittsburgh, PA 15219
Telephone: (412) 281-7229
E-mail: arihn@peircelaw.com
- and -
Robert Mackey, Esq.
LAW OFFICES OF ROBERT MACKEY
P.O. Box 279
Sewickley, PA 15143
Telephone: (412) 370-9110
E-mail: bobmackeyesq@aol.com
YALE UNIVERSITY: Fails to Refund Tuition Fee, Michel Claims
-----------------------------------------------------------
JONATHAN MICHEL, individually and on behalf of all others similarly
situated, Plaintiff v. YALE UNIVERSITY, Defendant, Case No.
3:20-cv-01080-JCH (D. Conn., July 29, 2020) is a class action
against the Defendant for alleged breach of contract and unjust
enrichment.
According to the complaint, the Defendant failed to deliver the
educational services, facilities, access and/or opportunities for
which the Plaintiff and Class members contracted and paid for the
Spring 2020 academic semester and refused to refund tuition and
related expenses, purportedly on its provision of online classes.
The Plaintiff and Class members entered into a contract with the
Defendant whereby payment of tuition, fees and other related costs
would be made, and the Defendant would provide in-person
instruction and access to physical resources and school facilities
such as libraries, laboratories, and classrooms. However, the
Defendant closed its campus and moved all or substantially all
classes online in response to the COVID-19 pandemic. While this
step to close campus and end in-person classes was necessitated by
circumstances, it effectively breached or terminated the contract
Yale had with each and every student and tuition provider, who paid
for the opportunity to participate fully in the academic life on
the Yale campus.
As a result of the Defendant's actions, the Plaintiff and Class
members did not receive the full value of the services for which
they paid. They have lost the benefit of their bargain and/or
suffered out-of-pocket loss.
Yale University is a private Ivy League educational institution
that offers programs at fourteen constituent schools. [BN]
The Plaintiff is represented by:
Sarah Poriss, Esq.
777 Farmington Avenue
West Hartford, CT 06119
Telephone: (860) 233-0336
Facsimile: (866) 424-4880
E-mail: sarahporiss@prodigy.net
- and –
James A. Francis, Esq.
John Soumilas, Esq.
David A. Searles, Esq.
Edward H. Skipton, Esq.
FRANCISMAILMAN SOUMILAS, P.C.
1600 Market Street, Suite 2510
Philadelphia, PA 19103
Telephone: (215) 735-8600
Facsimile: (215) 940-8000
E-mail: jfrancis@consumerlawfirm.com
jsoumilas@consumerlawfirm.com
dsearles@consumerlawfirm.com
eskipton@consumerlawfirm.com
- and –
Yvette Golan, Esq.
THE GOLAN FIRM
2000 M Street, NW, Suite #750-A
Washington, D.C. 20036
Telephone: (866) 298-4150
Facsimile: (928) 441-8250
E-mail: ygolan@tgfirm.com
YORKSHIRE BUILDING: Pacheco Sues Over Unpaid OT, Retaliation
------------------------------------------------------------
EDERSON J. PACHECO and other similarly situated individuals,
Plaintiff(s), v. YORKSHIRE BUILDING SERVICES, INC. Defendant, Case
No. 0:20-cv-61540 (S.D. Fla., July 29, 2020) is an action against
Defendant to recover money damages for unpaid overtime wages and
retaliation, pursuant to the Fair Labor Standards Act, 29 U.S.C.
Section 201-219.
The lawsuit is brought as a collective action to recover from the
Defendant overtime compensation, liquidated damages, and the costs
and reasonable attorney's fees under the provisions of the FLSA on
behalf of Plaintiff and all other current and former employees
similarly situated to Plaintiff and who worked more than 40 hours
during one or more weeks on or after August 2019, without being
properly compensated.
The Plaintiff also brings an action for equitable and monetary
relief to reddress the violations of Plaintiff's rights pursuant to
the Family Medical Leave Act, 29 U.S.C. Section 2612 (a)(1), when
Defendant failed to inform Plaintiff that he was eligible to take
leave under the FMLA after he tested positive for the COVID-19.
Defendant violated Plaintiff's protected rights under the Families
First Coronavirus Response Act, 116 P.L. 116-136, as amended, when
it fired Plaintiff due to the COVID-19 diagnosis, and therefore
should be punishable under FLSA, 29 U.S.C. Section 215 (a) (3).
Plaintiff was hired as a non-exempt, full-time cleaning employee.
He was assigned to work at Quest Diagnostics in Miramar, Florida,
approximately from August 1, 2019, to May 1, 2020, or 39 weeks.
Yorkshire Building Services, Inc. is a Florida-based provider of
building maintenance, janitorial, and cleaning services to
commercial accounts.[BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd. Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
Asbestos Litigation
ASBESTOS UPDATE: 3M Accrues $21MM Aearo-related Claims at June 30
-----------------------------------------------------------------
3M Company, through its Aearo Technologies subsidiary, had accruals
of US$21 million as of June 30, 2020, for product liabilities and
defense costs related to current and future Aearo-related asbestos
and silica-related claims, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2020.
The Company states, "On April 1, 2008, a subsidiary of the Company
acquired the stock of Aearo Holding Corp., the parent of Aearo
Technologies ("Aearo"). Aearo manufactured and sold various
products, including personal protection equipment, such as eye,
ear, head, face, fall and certain respiratory protection products.
"As of June 30, 2020, Aearo and/or other companies that previously
owned and operated Aearo's respirator business (American Optical
Corporation, Warner-Lambert LLC, AO Corp. and Cabot Corporation
("Cabot")) are named defendants, with multiple co-defendants,
including the Company, in numerous lawsuits in various courts in
which plaintiffs allege use of mask and respirator products and
seek damages from Aearo and other defendants for alleged personal
injury from workplace exposures to asbestos, silica-related, coal
mine dust, or other occupational dusts found in products
manufactured by other defendants or generally in the workplace.
"As of June 30, 2020, the Company, through its Aearo subsidiary,
had accruals of US$21 million for product liabilities and defense
costs related to current and future Aearo-related asbestos and
silica-related claims. This accrual represents the Company's best
estimate of Aearo's probable loss and reflects an estimation period
for future claims that may be filed against Aearo approaching the
year 2050. The accrual was reduced by US$37 million during the
second quarter of 2020 after paying Aearo's share of certain
settlements under the informal arrangement. The accrual reflects
the Company's assessment of pending and expected lawsuits, its
review of its respirator mask/asbestos liabilities, and the cost of
resolving claims of persons who claim more serious injuries.
Responsibility for legal costs, as well as for settlements and
judgments, is currently shared in an informal arrangement among
Aearo, Cabot, American Optical Corporation and a subsidiary of
Warner Lambert and their respective insurers (the "Payor Group").
Liability is allocated among the parties based on the number of
years each company sold respiratory products under the "AO Safety"
brand and/or owned the AO Safety Division of American Optical
Corporation and the alleged years of exposure of the individual
plaintiff."
A full-text copy of the Form 10-Q is available at
https://is.gd/hjSxbZ
ASBESTOS UPDATE: 3M's Pneumoconiosis Suit set for September Hearing
-------------------------------------------------------------------
The West Virginia Supreme Court will hold a hearing in September
2020 for the petition of respiratory protection manufacturers
challenging a trial court's 2019 ruling in the occupational
pneumoconiosis suit filed by the State of West Virginia through its
Attorney General, according to 3M Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2020.
The Company states, "The State of West Virginia, through its
Attorney General, filed a complaint in 2003 against the Company and
two other manufacturers of respiratory protection products in the
Circuit Court of Lincoln County, West Virginia, and amended its
complaint in 2005. The amended complaint seeks substantial, but
unspecified, compensatory damages primarily for reimbursement of
the costs allegedly incurred by the State for worker's compensation
and healthcare benefits provided to all workers with occupational
pneumoconiosis and unspecified punitive damages.
"In October 2019, the court granted the State's motion to sever its
unfair trade practices claim.
"In January 2020, the manufacturers filed a petition with the West
Virginia Supreme Court, challenging the trial court's rulings; that
petition is scheduled to be heard in September 2020.
No liability has been recorded for this matter because the Company
believes that liability is not probable and estimable at this time.
In addition, the Company is not able to estimate a possible loss
or range of loss given the lack of any meaningful discovery
responses by the State of West Virginia, the otherwise minimal
activity in this case, and the assertions of claims against two
other manufacturers where a defendant's share of liability may turn
on the law of joint and several liability and by the amount of
fault, if any, a jury may allocate to each defendant if the case
were ultimately tried."
A full-text copy of the Form 10-Q is available at
https://is.gd/hjSxbZ
ASBESTOS UPDATE: Albany Int'l. Still Defends Mount Vernon Cases
---------------------------------------------------------------
Albany International Corp. remains a defendant in some asbestos
cases as the "successor in interest" to Mount Vernon Mills,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2020.
Albany International states, "In some of these asbestos cases, the
Company is named both as a direct defendant and as the "successor
in interest" to Mount Vernon Mills ("Mount Vernon"). We acquired
certain assets from Mount Vernon in 1993. Certain plaintiffs
allege injury caused by asbestos-containing products alleged to
have been sold by Mount Vernon many years prior to this
acquisition. Mount Vernon is contractually obligated to indemnify
the Company against any liability arising out of such products. We
deny any liability for products sold by Mount Vernon prior to the
acquisition of the Mount Vernon assets. Pursuant to its
contractual indemnification obligations, Mount Vernon has assumed
the defense of these claims. On this basis, we have successfully
moved for dismissal in a number of actions."
A full-text copy of the Form 10-Q is available at
https://is.gd/47aRE8
ASBESTOS UPDATE: Ashland Global Had 49,000 Open Claims at June 30
-----------------------------------------------------------------
Ashland Global Holdings Inc. had 49,000 open claims related to
asbestos matters at June 30, 2020, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2020. The number of claims
excludes asbestos matters relating to wholly-owned subsidiary
Hercules LLC.
The Company states, "Ashland has insurance coverage for certain
litigation defense and claim settlement costs incurred in
connection with its asbestos claims, and coverage-in-place
agreements exist with the insurance companies that provide
substantially all of the coverage that will be accessed.
"For the Ashland asbestos-related obligations, Ashland has
estimated the value of probable insurance recoveries associated
with its asbestos reserve based on management's interpretations and
estimates surrounding the available or applicable insurance
coverage, including an assumption that all solvent insurance
carriers remain solvent. A substantial portion of the estimated
receivables from insurance companies are expected to be due from
domestic insurers.
"At June 30, 2020, Ashland's receivable for recoveries of
litigation defense and claim settlement costs from insurers
amounted to US$105 million (excluding the Hercules receivable for
asbestos claims) compared to US$123 million at September 30, 2019.
During the June 2020 quarter, the annual update of the model used
for purposes of valuing the asbestos reserve and its impact on
valuation of future recoveries from insurers was completed. This
model update resulted in a US$1 million increase in the receivable
for probable insurance recoveries."
A full-text copy of the Form 10-Q is available at
https://is.gd/bWwW5F
ASBESTOS UPDATE: Carrier Global Had $251MM Liability at June 30
---------------------------------------------------------------
Carrier Global Corporation has recorded US$251 million as of June
30, 2020, for estimated liability to resolve all pending and
unasserted potential future asbestos claims through 2059, according
to the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2020.
Carrier Global states, "The Company and its consolidated
subsidiaries have been named as defendants in lawsuits alleging
personal injury as a result of exposure to asbestos allegedly
integrated into certain Carrier products or business premises.
While the Company has never manufactured asbestos and no longer
incorporates it into any currently-manufactured products, certain
products that Carrier no longer manufactures contained components
incorporating asbestos. A substantial majority of these
asbestos-related claims have been dismissed without payment or were
covered in full or in part by insurance or other forms of
indemnity. Additional cases were litigated and settled without any
insurance reimbursement. The amounts involved in asbestos-related
claims were not material individually or in the aggregate in any
period.
"The amounts recorded for asbestos-related liabilities are based on
currently available information and assumptions that we believe are
reasonable and are made with input from outside actuarial experts.
As of June 30, 2020, the estimated range of liability to resolve
all pending and unasserted potential future asbestos claims through
2059 is approximately US$251 million to US$290 million. Where no
amount within a range of estimates is more likely, the minimum is
accrued. We have recorded the minimum amount of US$251 million and
US$255 million, which is principally recorded in Other long-term
liabilities on the Unaudited Condensed Consolidated Balance Sheet
as of June 30, 2020 and December 31, 2019, respectively. These
amounts are undiscounted and exclude the Company's legal fees to
defend the asbestos claims, which are expensed as incurred. In
addition, the Company has an insurance recovery receivable for
probable asbestos-related recoveries of approximately US$104
million, which is included primarily in Other assets on the
Unaudited Condensed Consolidated Balance Sheet as of June 30, 2020
and December 31, 2019."
A full-text copy of the Form 10-Q is available at
https://is.gd/WEvcbK
ASBESTOS UPDATE: Chemours Accrues $34MM for DuPont Suits at June 30
-------------------------------------------------------------------
The Chemours Company had an accrual of US$34 million related to
asbestos matters at June 30, 2020, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2020.
The Company states, "In the Separation, DuPont assigned its
asbestos docket to Chemours. At June 30, 2020 and December 31,
2019, there were approximately 1,100 lawsuits pending against
DuPont alleging personal injury from exposure to asbestos. These
cases are pending in state and federal court in numerous
jurisdictions in the U.S. and are individually set for trial. A
small number of cases are pending outside of the U.S. Most of the
actions were brought by contractors who worked at sites between the
1950s and the 1990s. A small number of cases involve similar
allegations by DuPont employees or household members of contractors
or DuPont employees. Finally, certain lawsuits allege personal
injury as a result of exposure to DuPont products."
A full-text copy of the Form 10-Q is available at
https://is.gd/vgf8bb
ASBESTOS UPDATE: Colgate-Palmolive Has 128 Talcum Suits at June 30
------------------------------------------------------------------
Colgate-Palmolive Company continues to face 128 individual
asbestos-related cases pending in state and federal courts
throughout the United States as of June 30, 2020, according to the
Company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2020
Colgate-Palmolive states, "The Company has been named as a
defendant in civil actions alleging that certain talcum powder
products that were sold prior to 1996 were contaminated with
asbestos. Most of these actions involve a number of co-defendants
from a variety of different industries, including suppliers of
asbestos and manufacturers of products that, unlike the Company's
products, were designed to contain asbestos.
"As of June 30, 2020, there were 128 individual cases pending
against the Company in state and federal courts throughout the
United States, as compared to 121 cases as of March 31, 2020 and
December 31, 2019.
"During the three months ended June 30, 2020, 12 new cases were
filed and four cases were resolved by voluntary dismissal or
settlement. In addition, one case that was previously dismissed by
the trial court was affirmed on appeal and is now closed.
"During the six months ended June 30, 2020, 17 new cases were filed
and 9 cases were resolved by voluntary dismissal or settlement. In
addition, the case that was previously dismissed by the trial court
was affirmed on appeal and is now closed. The value of the
settlements in the quarter and the year-to-date period presented
was not material, either individually or in the aggregate, to each
such period's results of operations."
A full-text copy of the Form 10-Q is available at
https://is.gd/i4TI7U
ASBESTOS UPDATE: Columbus McKinnon Has $4.4MM Liability at June 30
------------------------------------------------------------------
Columbus McKinnon Corporation has US$4,434,000 asbestos-related
aggregate liability that is probable and estimable as of June 30,
2020, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2020.
The Company states, "Like many industrial manufacturers, the
Company is involved in asbestos-related litigation. In continually
evaluating costs relating to its estimated asbestos-related
liability, the Company reviews, among other things, the incidence
of past and recent claims, the historical case dismissal rate, the
mix of the claimed illnesses and occupations of the plaintiffs, its
recent and historical resolution of the cases, the number of cases
pending against it, the status and results of broad-based
settlement discussions, and the number of years such activity might
continue. Based on this review, the Company has estimated its
share of liability to defend and resolve probable asbestos-related
personal injury claims. This estimate is highly uncertain due to
the limitations of the available data and the difficulty of
forecasting with any certainty the numerous variables that can
affect the range of the liability. The Company will continue to
study the variables in light of additional information in order to
identify trends that may become evident and to assess their impact
on the range of liability that is probable and estimable.
"Based on actuarial information, the Company has estimated its
asbestos-related aggregate liability including related legal costs
to range between US$3,800,000 and US$6,900,000 using actuarial
parameters of continued claims for a period of 37 years from June
30, 2020. The Company's estimation of its asbestos-related
aggregate liability that is probable and estimable, in accordance
with U.S. generally accepted accounting principles approximates
US$4,434,000, which has been reflected as a liability in the
Condensed Consolidated Balance Sheet as of June 30, 2020. The
recorded liability does not consider the impact of any potential
favorable federal legislation. This liability will fluctuate based
on the uncertainty in the number of future claims that will be
filed and the cost to resolve those claims, which may be influenced
by a number of factors, including the outcome of the ongoing
broad-based settlement negotiations, defensive strategies, and the
cost to resolve claims outside the broad-based settlement program.
Of this amount, management expects to incur asbestos liability
payments of approximately US$2,000,000 over the next 12 months.
Because payment of the liability is likely to extend over many
years, management believes that the potential additional costs for
claims will not have a material effect on the financial condition
of the Company or its liquidity, although the effect of any future
liabilities recorded could be material to earnings in a future
period."
A full-text copy of the Form 10-Q is available at
https://is.gd/VKXhZ3
ASBESTOS UPDATE: Corning Had $97MM non-PCC Reserves at June 30
--------------------------------------------------------------
Corning Incorporated's reserve for asbestos claims that are
unrelated to Pittsburgh Corning Corporation ("PCC") was US$97
million at June 30, 2020, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2020.
The Company states, "Corning is a defendant in certain cases
alleging injuries from asbestos unrelated to PCC (the "non-PCC
asbestos claims") which had been stayed pending the confirmation of
the Plan. The stay was lifted on August 25, 2016. At June 30,
2020 and December 31, 2019, the amount of the reserve for these
non-PCC asbestos claims was estimated to be US$97 million and US$98
million, respectively. The reserve balance as of June 30, 2020
represents the undiscounted projection of claims and related legal
fees for the estimated life of the litigation."
A full-text copy of the Form 10-Q is available at
https://is.gd/S1EPgn
ASBESTOS UPDATE: Crane Co. Has 28,927 Pending Claims at June 30
---------------------------------------------------------------
Crane Co. has 28,927 pending asbestos-related claims as of June 30,
2020, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2020.
The Company states, "Of the 28,927 pending claims as of June 30,
2020, approximately 18,000 claims were pending in New York,
approximately 100 claims were pending in Texas, approximately 300
claims were pending in Mississippi, and approximately 200 claims
were pending in Ohio, all jurisdictions in which legislation or
judicial orders restrict the types of claims that can proceed to
trial on the merits.
"We have tried several cases resulting in defense verdicts by the
jury or directed verdicts for the defense by the court. We further
have pursued appeals of certain adverse jury verdicts that have
resulted in reversals in favor of the defense. We have also tried
several other cases resulting in plaintiff verdicts which we paid
or settled after unsuccessful appeals."
A full-text copy of the Form 10-Q is available at
https://is.gd/bJtP6P
ASBESTOS UPDATE: Crown Holdings Had 56,000 Claims at June 30
------------------------------------------------------------
Crown Holdings, Inc. (fka Crown Cork & Seal Co Inc.) had 56,000
outstanding claims related to asbestos matters at June 30, 2020,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2020.
The Company also disclosed that during the six months ended June
30, 2020, it paid US$5 million to settle outstanding claims. In the
same period, there were 700 new claims and 700 settlements or
dismissals.
The Company states, "Crown Cork & Seal Company, Inc. ("Crown Cork")
is one of many defendants in a substantial number of lawsuits filed
throughout the U.S. by persons alleging bodily injury as a result
of exposure to asbestos. These claims arose from the insulation
operations of a U.S. company, the majority of whose stock Crown
Cork purchased in 1963. Approximately ninety days after the stock
purchase, this U.S. company sold its insulation assets and was
later merged into Crown Cork.
"Prior to 1998, amounts paid to asbestos claimants were covered by
a fund made available to Crown Cork under a 1985 settlement with
carriers insuring Crown Cork through 1976, when Crown Cork became
self-insured. The fund was depleted in 1998 and the Company has no
remaining coverage for asbestos-related costs.
"In December 2001, the Commonwealth of Pennsylvania enacted
legislation that limits the asbestos-related liabilities of
Pennsylvania corporations that are successors by corporate merger
to companies involved with asbestos. The legislation limits the
successor's liability for asbestos to the acquired company's asset
value adjusted for inflation. Crown Cork has paid significantly
more for asbestos-related claims than the acquired company's
adjusted asset value.
"In November 2004, the legislation was amended to address a
Pennsylvania Supreme Court decision (Ieropoli v. AC&S Corporation,
et al., No. 117 EM 2002) which held that the statute violated the
Pennsylvania Constitution due to retroactive application. The
Company cautions that the limitations of the statute, as amended,
are subject to litigation and may not be upheld.
"In June 2003, the state of Texas enacted legislation that limits
the asbestos-related liabilities in Texas courts of companies such
as Crown Cork that allegedly incurred these liabilities because
they are successors by corporate merger to companies that had been
involved with asbestos. The Texas legislation, which applies to
future claims and pending claims, caps asbestos-related liabilities
at the total gross value of the predecessor's assets adjusted for
inflation. Crown Cork has paid significantly more for
asbestos-related claims than the total adjusted value of its
predecessor's assets.
"In October 2010, the Texas Supreme Court held that the Texas
legislation was unconstitutional under the Texas Constitution when
applied to asbestos-related claims pending against Crown Cork when
the legislation was enacted in June 2003. The Company believes
that the decision of the Texas Supreme Court is limited to
retroactive application of the Texas legislation to
asbestos-related cases that were pending against Crown Cork in
Texas on June 11, 2003 and therefore, in its accrual, continues to
assign no value to claims filed after June 11, 2003.
"In recent years, the states of Alabama, Arizona, Arkansas,
Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Michigan,
Mississippi, Nebraska, North Carolina, North Dakota, Ohio,
Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West
Virginia, Wisconsin and Wyoming enacted legislation that limits
asbestos-related liabilities under state law of companies such as
Crown Cork that allegedly incurred these liabilities because they
are successors by corporate merger to companies that had been
involved with asbestos. The legislation, which applies to future
and, with the exception of Arkansas, Georgia, South Carolina, South
Dakota, West Virginia and Wyoming, pending claims, caps
asbestos-related liabilities at the fair market value of the
predecessor's total gross assets adjusted for inflation. Crown
Cork has paid significantly more for asbestos-related claims than
the total value of its predecessor's assets adjusted for inflation.
Crown Cork has integrated the legislation into its claims defense
strategy.
"The Company further cautions that an adverse ruling in any
litigation relating to the constitutionality or applicability to
Crown Cork of one or more statutes that limits the asbestos-related
liability of alleged defendants like Crown Cork could have a
material impact on the Company."
A full-text copy of the Form 10-Q is available at
https://is.gd/HdHFZt
ASBESTOS UPDATE: Flowserve Still Defends PI Lawsuits at June 30
---------------------------------------------------------------
Flowserve Corporation said in its Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2020, that it is a defendant in a substantial number of
lawsuits that seek to recover damages for personal injury allegedly
caused by exposure to asbestos-containing products manufactured
and/or distributed by its heritage companies in the past.
The Company states, "While the overall number of asbestos-related
claims has generally declined in recent years, there can be no
assurance that this trend will continue, or that the average cost
per claim will not further increase. Asbestos-containing materials
incorporated into any such products were encapsulated and used as
internal components of process equipment, and we do not believe
that any significant emission of asbestos fibers occurred during
the use of this equipment.
"Our practice is to vigorously contest and resolve these claims,
and we have been successful in resolving a majority of claims with
little or no payment. Historically, a high percentage of resolved
claims have been covered by applicable insurance or indemnities
from other companies, and we believe that a substantial majority of
existing claims should continue to be covered by insurance or
indemnities, in whole or in part. Accordingly, we have recorded a
liability for our estimate of the most likely settlement of
asserted claims and a related receivable from insurers or other
companies for our estimated recovery, to the extent we believe that
the amounts of recovery are probable. While unfavorable rulings,
judgments or settlement terms regarding these claims could have a
material adverse impact on our business, financial condition,
results of operations and cash flows, we currently believe the
likelihood is remote.
"Additionally, we have claims pending against certain insurers
that, if resolved more favorably than reflected in the recorded
receivables, would result in discrete gains in the applicable
quarter. We are currently unable to estimate the impact, if any,
of unasserted asbestos-related claims, although we expect that
future claims would also be subject to then-existing indemnities
and insurance coverage."
A full-text copy of the Form 10-Q is available at
https://is.gd/Bln95q
ASBESTOS UPDATE: Garrett-Honeywell Indemnification Disputes Ongoing
-------------------------------------------------------------------
Garrett Motion Inc. continues to face disputes with its former
parent Honeywell International Inc. on indemnification matters
related to asbestos settlement, according to the Company's Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended June 30, 2020.
As previously reported, Garrett Motion Inc. became an independent
publicly-traded company on October 1, 2018 through a pro rata
distribution by Honeywell International Inc. of 100% of the
then-outstanding shares of Garrett to Honeywell's stockholders (the
"Spin-Off").
The Company states, "Honeywell is a defendant in asbestos-related
personal injury actions mainly related to its legacy Bendix
friction materials ("Bendix") business. The Bendix business
manufactured automotive brake linings that contained chrysotile
asbestos in an encapsulated form. Claimants consist largely of
individuals who allege exposure to asbestos from brakes from either
performing or being in the vicinity of individuals who performed
brake replacements. Certain operations that were part of the
Bendix business were transferred to Garrett.
"In connection with the Spin-Off, Garrett ASASCO, a wholly owned
indirect subsidiary of the Company, entered into the Subordinated
Indemnity Agreement with Honeywell on September 12, 2018. As of
the Spin-Off date of October 1, 2018, Garrett ASASCO is obligated
to make payments to Honeywell in amounts equal to 90% of
Honeywell's asbestos-related liability payments and accounts
payable, primarily related to the Bendix business in the United
States, as well as certain environmental-related liability payments
and accounts payable and non-United States asbestos-related
liability payments and accounts payable, in each case related to
legacy elements of the Business, including the legal costs of
defending and resolving such liabilities, less 90% of Honeywell's
net insurance receipts and, as may be applicable, certain other
recoveries associated with such liabilities. Pursuant to the terms
of this Subordinated Indemnity Agreement, Garrett ASASCO is
responsible for paying to Honeywell such amounts, up to a cap of an
amount equal to the Euro-to-U.S. dollar exchange rate determined by
Honeywell as of a date within two business days prior to the date
of the Distribution (1.16977 USD = 1 EUR) equivalent of US$175
million in respect of such liabilities arising in any given
calendar year. The payments that Garrett ASASCO is required to
make to Honeywell pursuant to the terms of the Subordinated
Indemnity Agreement will not be deductible for U.S. federal income
tax purposes. The Subordinated Indemnity Agreement provides that
the agreement will terminate upon the earlier of (x) December 31,
2048 or (y) December 31st of the third consecutive year during
which certain amounts owed to Honeywell during each such year were
less than US$25 million as converted into Euros in accordance with
the terms of the agreement. During the first quarter of 2020,
Garrett ASASCO paid Honeywell the Euro-equivalent of US$35 million
in connection with the Subordinated Indemnity Agreement. Honeywell
and Garrett agreed to defer the payment under the Subordinated
Indemnity Agreement due May 1, 2020 to December 31, 2020 (the "Q2
Payment"). As of the date of this Quarterly Report on Form 10-Q,
we do not anticipate that Garrett ASASCO will make any additional
payments under the Subordinated Indemnity Agreement, other than the
Q2 Payment, prior to 2022, in accordance with the payment deferral
mechanism contained in the Subordinated Indemnity Agreement. In
accordance with the Subordinated Indemnity Agreement, we anticipate
that the deferred payments will be partially settled on April 30,
2023, up to the available capacity to make such payments under the
Credit Agreement , assuming we remain in compliance with the
financial maintenance covenants in the Credit Agreement at that
time. We expect to pay the remaining balance of deferred amounts
from 2023 onwards. These amounts do not reflect any increases to
the aggregate amount owed to Honeywell.
"In conjunction with the 2020 Amendment, on June 12, 2020, Garrett
ASASCO entered into an amendment (the "Subordinated Indemnity
Amendment") to the Subordinated Indemnity Agreement. The
Subordinated Indemnity Amendment:
* Amends the negative covenants contained in Exhibit L of the
Subordinated Indemnity Agreement to reflect amendments made by the
2020 Amendment to the corresponding negative covenants in the
Credit Agreement; and
* Modifies the Subordinated Indemnity Agreement such that we may
not agree to an amendment or waiver of (i) the minimum liquidity,
net secured leverage ratio and maximum cash covenants under the
Credit Agreement as amended by the 2020 Amendment that would make
those covenants more restrictive to us and (ii) during the Relief
Period, the additional drawdown condition for revolving borrowings,
in each case, without the prior written consent of Honeywell.
"On December 2, 2019, the Company and its subsidiary Garrett
ASASCO, filed a Summons with Notice in the Commercial Division of
the Supreme Court of the State of New York, County of New York (the
"NY Supreme Court") commencing an action (the "Action") against
Honeywell, certain of Honeywell's subsidiaries and certain of
Honeywell's employees for declaratory judgment, breach of contract,
breach of fiduciary duties, aiding and abetting breach of fiduciary
duties, corporate waste, breach of the implied covenant of good
faith and fair dealing, and unjust enrichment.
"On January 15, 2020, the Company and Garrett ASASCO, filed a
Complaint in the NY Supreme Court in connection with the Action.
The lawsuit arises from the Subordinated Indemnity Agreement. The
Company is seeking declaratory relief; compensatory damages in an
amount to be determined at trial; rescission of the Subordinated
Indemnity Agreement; attorneys' fees and costs and such other and
further relief as the Court may deem just and proper. There can be
no assurance as to the time and resources that will be required to
pursue these claims or the ultimate outcome of the lawsuit. Among
other claims, Garrett asserts that Honeywell is not entitled to
indemnification because it improperly seeks indemnification for
amounts attributable to punitive damages and intentional
misconduct, and because it has failed to establish other
prerequisites for indemnification under New York law.
Specifically, the claim asserts that Honeywell has failed to
establish its right to indemnity for each and every asbestos
settlement of the thousands for which it seeks indemnification.
The Action seeks to establish that the Subordinated Indemnity
Agreement is not enforceable, in whole or in part.
"On March 5, 2020, Honeywell filed a "Notice of Motion to Dismiss
Garrett's Complaint."
"On June 18, 2020, by agreement of the parties, Honeywell withdrew
its motion to dismiss and Garrett agreed to file an amended
complaint on September 15, 2020."
A full-text copy of the Form 10-Q is available at
https://is.gd/xJ8N2K
ASBESTOS UPDATE: Hercules LLC Had 13,000 Open Claims at June 30
---------------------------------------------------------------
Ashland Global Holdings Inc. disclosed in its Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2020, that wholly-owned subsidiary Hercules
LLC still faces 13,000 open claims related to asbestos matters at
June 30, 2020.
The Company states, "For the Hercules asbestos-related obligations,
certain reimbursement obligations pursuant to coverage-in-place
agreements with insurance carriers exist. Ashland has estimated
the value of probable insurance recoveries associated with its
asbestos reserve based on management's interpretations and
estimates surrounding the available or applicable insurance
coverage, including an assumption that all solvent insurance
carriers remain solvent. The estimated receivable consists
exclusively of solvent domestic insurers.
"As of June 30, 2020, Ashland's receivable for recoveries of
litigation defense and claims costs from insurers with respect to
Hercules amounted to US$47 million. During the June 2020 quarter,
the annual update of the model used for purposes of valuing the
asbestos reserve and its impact on valuation of future recoveries
from insurers was completed. This model update resulted in a
decrease of US$2 million in the receivable for probable insurance
recoveries."
A full-text copy of the Form 10-Q is available at
https://is.gd/bWwW5F
ASBESTOS UPDATE: Honeywell Investors Suit has Sept. 9 Deadline
---------------------------------------------------------------
Shareholders Foundation states in a press release that if you
purchased a significant amount of shares of Honeywell International
Inc. (NYSE: HON) between February 9, 2018 and October 19, 2018, you
have certain options and should contact the Shareholders
Foundation.
In late 2018 an investor, who purchased shares of Honeywell
International Inc. (NYSE: HON), filed a lawsuit over alleged
violations of Federal Securities Laws by Honeywell International
Inc. in connection with certain allegedly false and misleading
statements.
If you purchased a significant amount of shares of Honeywell
International Inc. (NYSE: HON) between February 9, 2018 and October
19, 2018, you have certain options and for certain investors are
short and strict deadlines running. Deadline: September 9, 2020.
NYSE: HON investors should contact the Shareholders Foundation at
mail@shareholdersfoundation.com or call +1(858) 779 - 1554.
According to the complaint the plaintiff alleged on behalf of
purchasers of Honeywell International Inc. (NYSE: HON) common
shares between February 9, 2018 and October 19, 2018, that the
defendants violated Federal Securities Laws. More specifically,
the plaintiff claimed that between February 9, 2018 and October 19,
2018, the Defendants made false and/or misleading statements and/or
failed to disclose that Honeywell's Bendix asbestos-related
liability was greater than initially reported, that the Company
maintained improper accounting practices in connection with its
Bendix asbestos-related liability, and that as a result,
Honeywell's public statements were materially false and misleading
at all relevant times.
Those who purchased shares of Honeywell International Inc. (NYSE:
HON) have certain options and should contact the Shareholders
Foundation.
Media Contact:
Michael Daniels
Shareholders Foundation, Inc.
3111 Camino Del Rio North
Suite 423
San Diego, CA 92108
Tel: +1-(858)-779-1554
E-Mail: mail@shareholdersfoundation.com
About Shareholders Foundation, Inc.
The Shareholders Foundation, Inc. is a professional portfolio
monitoring and settlement claim filing service, and an investor
advocacy group, which does research related to shareholder issues
and informs investors of securities class actions, settlements,
judgments, and other legal related news to the stock/financial
market. Shareholders Foundation, Inc. is in contact with a large
number of shareholders and offers help, support, and assistance for
every shareholder. The Shareholders Foundation, Inc. is not a law
firm. Referenced cases, investigations, and/or settlements are not
filed/initiated/reached and/or are not related to Shareholders
Foundation. The information is provided as a public service. It
is not intended as legal advice and should not be relied upon.
ASBESTOS UPDATE: ITT Remains Obliged to Indemnify Xylem at June 30
------------------------------------------------------------------
Xylem Inc. said in its Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended June 30,
2020, that it believes ITT Corporation (now ITT LLC) "remains a
substantial entity with sufficient financial resources" to honor
its obligations to indemnify, defend and hold Xylem harmless for
asbestos product liability matters.
The Company states, "From time to time, claims may be asserted
against Xylem alleging injury caused by any of our products
resulting from asbestos exposure. We believe there are numerous
legal defenses available for such claims and would defend ourselves
vigorously. Pursuant to the Distribution Agreement among ITT
Corporation (now ITT LLC), Exelis and Xylem, ITT Corporation (now
ITT LLC) has an obligation to indemnify, defend and hold Xylem
harmless for asbestos product liability matters, including
settlements, judgments, and legal defense costs associated with all
pending and future claims that may arise from past sales of ITT's
legacy products. We believe ITT Corporation (now ITT LLC) remains
a substantial entity with sufficient financial resources to honor
its obligations to us.
"As part of our 2011 spin-off from our former parent, ITT
Corporation (now ITT LLC), Exelis Inc. and Xylem will indemnify,
defend and hold harmless each of the other parties with respect to
such parties' assumed or retained liabilities under the
Distribution Agreement and breaches of the Distribution Agreement
or related spin agreements. The former parent's indemnification
obligations include asserted and unasserted asbestos and silica
liability claims that relate to the presence or alleged presence of
asbestos or silica in products manufactured, repaired or sold prior
to October 31, 2011, the Distribution Date, subject to limited
exceptions with respect to certain employee claims, or in the
structure or material of any building or facility, subject to
exceptions with respect to employee claims relating to Xylem
buildings or facilities. The indemnification associated with
pending and future asbestos claims does not expire. Xylem has not
recorded a liability for material matters for which we expect to be
indemnified by the former parent or Exelis Inc. through the
Distribution Agreement and we are not aware of any claims or other
circumstances that would give rise to material payments from us
under such indemnifications.
"On May 29, 2015, Harris Inc. acquired Exelis. As the parent of
Exelis, Harris Inc. is responsible for Exelis' indemnification
obligations under the Distribution Agreement."
A full-text copy of the Form 10-Q is available at
https://is.gd/ddQgL8
ASBESTOS UPDATE: Magnetek Has $708,000 Liability at June 30
-----------------------------------------------------------
Columbus McKinnon Corporation's subsidiary, Magnetek, recorded
approximately US$708,000 for asbestos-related liability at June 30,
2020, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2020.
The Company states, "Magnetek has been named, along with multiple
other defendants, in asbestos-related lawsuits associated with
business operations previously acquired but which are no longer
owned. During Magnetek's ownership, none of the businesses
produced or sold asbestos-containing products. For such claims,
Magnetek is uninsured and either contractually indemnified against
liability, or contractually obligated to defend and indemnify the
purchaser of these former business operations. The Company
aggressively seeks dismissal from these proceedings. Based on
actuarial information, the asbestos-related liability including
legal costs is estimated to be approximately US$708,000 which has
been reflected as a liability in the Condensed Consolidated Balance
Sheet at June 30, 2020."
A full-text copy of the Form 10-Q is available at
https://is.gd/VKXhZ3
ASBESTOS UPDATE: MRC Global Still Faces 603 Lawsuits at June 30
---------------------------------------------------------------
MRC Global Inc. continues to face approximately 603
asbestos-related lawsuits involving approximately 1,179 claims as
of June 30, 2020, according to the Company's Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarterly
period ended June 30, 2020.
The Company states, "We are one of many defendants in lawsuits that
plaintiffs have brought seeking damages for personal injuries that
exposure to asbestos allegedly caused. Plaintiffs and their family
members have brought these lawsuits against a large volume of
defendant entities as a result of the defendants' manufacture,
distribution, supply or other involvement with asbestos, asbestos
containing-products or equipment or activities that allegedly
caused plaintiffs to be exposed to asbestos. These plaintiffs
typically assert exposure to asbestos as a consequence of
third-party manufactured products that our MRC Global (US) Inc.
subsidiary purportedly distributed.
"As of June 30, 2020, we are named a defendant in approximately 603
lawsuits involving approximately 1,179 claims. No asbestos lawsuit
has resulted in a judgment against us to date, with a majority
being settled, dismissed or otherwise resolved. Applicable
third-party insurance has substantially covered these claims, and
insurance should continue to cover a substantial majority of
existing and anticipated future claims. Accordingly, we have
recorded a liability for our estimate of the most likely settlement
of asserted claims and a related receivable from insurers for our
estimated recovery, to the extent we believe that the amounts of
recovery are probable. It is not possible to predict the outcome
of these claims and proceedings. However, in our opinion, the
likelihood that the ultimate disposition of any of these claims and
legal proceedings will have a material adverse effect on our
consolidated financial statements is remote."
A full-text copy of the Form 10-Q is available at
https://is.gd/jlcNfD
ASBESTOS UPDATE: Rexnord Still Defends Stearns PI Suits at June 30
------------------------------------------------------------------
Rexnord Corporation continues to defend itself against multiple
lawsuits relating to alleged personal injuries due to the alleged
presence of asbestos in certain brakes and clutches of the
Company's Stearns division, according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2020.
The Company states, "Multiple lawsuits (with approximately 300
claimants) are pending in state or federal court in numerous
jurisdictions relating to alleged personal injuries due to the
alleged presence of asbestos in certain brakes and clutches
previously manufactured by the Company's Stearns division and/or
its predecessor owners. Invensys and FMC, prior owners of the
Stearns business, have paid 100% of the costs to date related to
the Stearns lawsuits.
"In connection with its sale, Invensys plc ("Invensys") provided
the Company with indemnification against certain contingent
liabilities, including certain pre-closing environmental
liabilities. The Company believes that, pursuant to such indemnity
obligations, Invensys is obligated to defend and indemnify the
Company with respect to the matters relating to the Ellsworth
Industrial Park Site and to various asbestos claims. The indemnity
obligations relating to the matters are subject, together with
indemnity obligations relating to other matters, to an overall
dollar cap equal to the purchase price, which is an amount in
excess of US$900 million."
A full-text copy of the Form 10-Q is available at
https://is.gd/7WWMY9
ASBESTOS UPDATE: Rexnord's Prager Unit Still Has PI Claims in June
------------------------------------------------------------------
Rexnord Corporation's Prager subsidiary is still the subject of
claims by multiple claimants alleging personal injuries due to the
alleged presence of asbestos in a product allegedly manufactured by
Prager, according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2020.
The Company states, "The Company's Prager subsidiary is the subject
of claims by multiple claimants alleging personal injuries due to
the alleged presence of asbestos in a product allegedly
manufactured by Prager. However, all these claims are currently on
the Texas Multi-district Litigation inactive docket, and the
Company does not believe that they will become active in the
future. To date, the Company's insurance providers have paid 100%
of the costs related to the Prager asbestos matters. The Company
believes that the combination of its insurance coverage and the
Invensys indemnity obligations will cover any future costs of these
matters.
"In connection with its sale, Invensys plc ("Invensys") provided
the Company with indemnification against certain contingent
liabilities, including certain pre-closing environmental
liabilities. The Company believes that, pursuant to such indemnity
obligations, Invensys is obligated to defend and indemnify the
Company with respect to the matters relating to the Ellsworth
Industrial Park Site and to various asbestos claims. The indemnity
obligations relating to the matters are subject, together with
indemnity obligations relating to other matters, to an overall
dollar cap equal to the purchase price, which is an amount in
excess of US$900 million."
A full-text copy of the Form 10-Q is available at
https://is.gd/7WWMY9
ASBESTOS UPDATE: Rockwell Automation Still Faces Suits at June 30
-----------------------------------------------------------------
Rockwell Automation, Inc. said in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2020, that "currently there are a few thousand
claimants" in asbestos-related lawsuits that name the Company as
defendants, together with hundreds of other companies.
The Company states, "We (including our subsidiaries) have been
named as a defendant in lawsuits alleging personal injury as a
result of exposure to asbestos that was used in certain components
of our products many years ago, including products from divested
businesses for which we have agreed to defend and indemnify claims.
Currently there are a few thousand claimants in lawsuits that name
us as defendants, together with hundreds of other companies. But
in all cases, for those claimants who do show that they worked with
our products or products of divested businesses for which we are
responsible, we nevertheless believe we have meritorious defenses,
in substantial part due to the integrity of the products, the
encapsulated nature of any asbestos-containing components, and the
lack of any impairing medical condition on the part of many
claimants. We defend those cases vigorously. Historically, we
have been dismissed from the vast majority of these claims with no
payment to claimants.
"Additionally, we have maintained insurance coverage that includes
indemnity and defense costs, over and above self-insured
retentions, for many of these claims. We believe these
arrangements will provide substantial coverage for future defense
and indemnity costs for these asbestos claims throughout the
remaining life of asbestos liability. The uncertainties of
asbestos claim litigation make it difficult to predict accurately
the ultimate outcome of asbestos claims. That uncertainty is
increased by the possibility of adverse rulings or new legislation
affecting asbestos claim litigation or the settlement process.
Subject to these uncertainties and based on our experience
defending asbestos claims, we do not believe these lawsuits will
have a material effect on our business, financial condition or
results of operations."
A full-text copy of the Form 10-Q is available at
https://is.gd/yK0qwu
ASBESTOS UPDATE: Standard Motor Had 1,600 Fibro Cases at June 30
----------------------------------------------------------------
Approximately 1,600 cases were outstanding at June 30, 2020, for
which Standard Motor Products, Inc. may be responsible for any
related liabilities in connection to its former brake business,
according to the Company's Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2020.
The Company states, "In 1986, we acquired a brake business, which
we subsequently sold in March 1998 and which is accounted for as a
discontinued operation in the accompanying statement of operations.
When we originally acquired this brake business, we assumed future
liabilities relating to any alleged exposure to asbestos-containing
products manufactured by the seller of the acquired brake business.
In accordance with the related purchase agreement, we agreed to
assume the liabilities for all new claims filed on or after
September 2001. Our ultimate exposure will depend upon the number
of claims filed against us on or after September 2001, and the
amounts paid for settlements, awards of asbestos-related damages,
and defense of such claims.
"At June 30, 2020, approximately 1,600 cases were outstanding for
which we may be responsible for any related liabilities. Since
inception in September 2001 through June 30, 2020, the amounts paid
for settled claims are approximately US$33.4 million. We do not
have insurance coverage for the indemnity and defense costs
associated with the claims we face."
A full-text copy of the Form 10-Q is available at
https://is.gd/Icervo
ASBESTOS UPDATE: Trane Transfers Liabilities to Aldrich and Murray
------------------------------------------------------------------
Trane Technologies plc disclosed in its Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 30, 2020, that its indirect wholly-owned subsidiaries,
Aldrich Pump LLC (Aldrich) and Murray Boiler LLC (Murray), have
become solely responsible for the asbestos-related liabilities, and
the beneficiaries of the asbestos-related insurance assets, of
Trane Technologies Company LLC, formerly known as Ingersoll- Rand
Company, and Trane U.S. Inc, respectively.
The Company states, "On May 1, 2020, certain subsidiaries of the
Company underwent an internal corporate restructuring that was
effectuated through a series of transactions (2020 Corporate
Restructuring). As a result, Aldrich Pump LLC (Aldrich) and Murray
Boiler LLC (Murray), indirect wholly-owned subsidiaries of Trane
Technologies plc, became solely responsible for the
asbestos-related liabilities, and the beneficiaries of the
asbestos-related insurance assets, of Trane Technologies Company
LLC, formerly known as Ingersoll- Rand Company, and Trane U.S. Inc,
respectively. On a consolidated basis, the 2020 Corporate
Restructuring did not have an impact on the Condensed Consolidated
Financial Statements.
"On June 18, 2020 (Petition Date), Aldrich and Murray filed
voluntary petitions for relief under Chapter 11 of Title 11 of the
United States Code (the Bankruptcy Code) in the United States
Bankruptcy Court for the Western District of North Carolina (the
Bankruptcy Court) to resolve equitably and permanently all current
and future asbestos related claims in a manner beneficial to
claimants, Aldrich and Murray. Only Aldrich and Murray have filed
for Chapter 11 relief. Neither Aldrich's wholly-owned subsidiary,
200 Park, Inc. (200 Park), Murray's wholly-owned subsidiary,
ClimateLabs LLC (ClimateLabs), Trane Technologies plc nor its other
subsidiaries (the Trane Companies) are part of the Chapter 11
filings. The Trane Companies are expected to continue to operate
as usual, with no disruption to their employees, suppliers, or
customers globally. However, as of the Petition Date, Aldrich and
its wholly-owned subsidiary 200 Park and Murray and its
wholly-owned subsidiary ClimateLabs were deconsolidated and their
respective assets and liabilities were derecognized from the
Company's Condensed Consolidated Financial Statements."
Trane Technologies further reportes, "From an accounting
perspective, we no longer have control over Aldrich and Murray as
of the Petition Date as their activities are subject to review and
oversight by the Bankruptcy Court. Therefore, Aldrich and its
wholly-owned subsidiary 200 Park and Murray and its wholly-owned
subsidiary ClimateLabs were deconsolidated as of the Petition Date
and their respective assets and liabilities were derecognized from
our Condensed Consolidated Financial Statements. As a result, we
recorded an equity investment for an aggregate of US$53.6 million
within Other noncurrent assets in the Condensed Consolidated
Balance Sheet. Simultaneously, we recognized a liability of
US$249.3 million within Other noncurrent liabilities in the
Condensed Consolidated Balance Sheet related to our obligation
under the Funding Agreements. The liability recorded may be
subject to change based on the facts and circumstances of the
Chapter 11 proceedings.
"As a result of these actions, we recognized an aggregate loss of
US$22.7 million in our Condensed Consolidated Statements of
Comprehensive Income (Loss). A gain of US$0.9 million related to
Murray and its wholly-owned subsidiary ClimateLabs was recorded
within Other income/ (expense), net and a loss of US$23.6 million
related to Aldrich and its wholly-owned subsidiary 200 Park was
recorded within Discontinued operations, net of tax. Additionally,
the deconsolidation resulted in an investing cash outflow of
US$41.7 million in our Condensed Consolidated Statements of Cash
Flows, of which US$10.8 million was recorded within continuing
operations."
A full-text copy of the Form 10-Q is available at
https://is.gd/tYGQMA
ASBESTOS UPDATE: TriMas Corp. Has 352 Pending Cases at June 30
--------------------------------------------------------------
TriMas Corporation has 352 pending asbestos-related cases as of
June 30, 2020, involving an aggregate of 4,732 claims, according to
the Company's Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2020.
The Company states, "As of June 30, 2020, the Company was a party
to 352 pending cases involving an aggregate of 4,732 claims
primarily alleging personal injury from exposure to asbestos
containing materials formerly used in gaskets (both encapsulated
and otherwise) manufactured or distributed by Lamons and certain
other related subsidiaries for use primarily in the petrochemical,
refining and exploration industries.
"In addition, the Company acquired various companies to distribute
its products that had distributed gaskets of other manufacturers
prior to acquisition. The Company believes that many of its
pending cases relate to locations at which none of its gaskets were
distributed or used.
"The Company may be subjected to significant additional
asbestos-related claims in the future, and will aggressively defend
or reasonably resolve, as appropriate. The cost of settling cases
in which product identification can be made may increase, and the
Company may be subjected to further claims in respect of the former
activities of its acquired gasket distributors. The cost of claims
varies as claims may be initially made in some jurisdictions
without specifying the amount sought or by simply stating the
requisite or maximum permissible monetary relief, and may be
amended to alter the amount sought. The large majority of claims
do not specify the amount sought. Of the 4,732 claims pending at
June 30, 2020, 55 set forth specific amounts of damages (other than
those stating the statutory minimum or maximum). At June 30, 2020,
of the 55 claims that set forth specific amounts, there were no
claims seeking specific amounts for punitive damages."
A full-text copy of the Form 10-Q is available at
https://is.gd/UMMx25
*********
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.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000.
*** End of Transmission ***