/raid1/www/Hosts/bankrupt/CAR_Public/200820.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, August 20, 2020, Vol. 22, No. 167
Headlines
4E BRAND: Pepe et al. Sue Over Defective Methanol-Based Products
AFTEROURS INC: Website Not Accessible to Blind, Katt Says
ALNYLAM PHARMA: Bid to Dismiss CCERF Class Suit Under Advisement
ALNYLAM PHARMA: Leavitt Seeks Leave to File Amended Complaint
APPLE INC: Court Narrows Claims in Securities Litigation
ATLANTIC LOTTERY: Averts Class Action Over VLTs
AUTO-OWNERS INSURANCE: Court Tosses Gordon Suit Over Denied Claim
AVIVA INSURANCE: Canadian Hotels Launch Class Action
BARING BDC: Appeal in Triangle Capital Securities Suit Pending
BASIL BRICK: Faces Naula Wage-and-Hour Suit in E.D.N.Y.
BAUERFEIND USA: Website Inaccessible to Blind, Jaquez Claims
BB CRAFTS INC: Jaquez Alleges Violation under ADA
BFW DENVER: Website Not Accessible to Blind, Katt Says
BRIGHAM YOUNG UNIVERSITY: Hiatt Files Suit in Utah
CEMPRA INC: 4th Cir. Affirms Dismissal of Janies Securities Suit
CENTRAL VALLEY MEAT: Faces Class Action Over COVID-19 Outbreak
CENTURA HEALTH: Faces Class Action Over Predatory Billing Practices
CIOX HEALTH: Thompson Files Suit in South Carolina
CLAYTON COUNTY, GA: Dismissal of Hojeij Tax Refund Suit Reversed
COMED: Faces Class Action Seeking $150M Reimbursement for Customers
CONESTOGA SETTLEMENT: Court Trims Arbitration of Neukranz Claims
CONGRESS COLLECTION: Randolph Asserts Breach of FDCPA
DHL EXPRESS: Jones Seeks Unpaid Overtime for Delivery Drivers
E&M FOOD MARKET: Fails to Pay Minimum Wage, Aguilar et al. Claim
EPOCA INT'L: Monegro Asserts Breach of ADA in New York
EQUITABLE HOLDINGS: Bid for Entry of Judgment in O'Donnell Granted
FCA US: Razen Balks at Defective Vehicle Automatic Transmission
FIRSTENERGY CORP: Paid Bribe to Pass Ohio Bailout Law, Smith Says
FIRSTENERGY: Potential Class Action Seeks Refund of Rate Hike
FIRSTSOURCE ADVANTAGE: Wallk Asserts Breach of FDCPA in New York
FLYWAY EXPRESS: Benton Seeks Unpaid Overtime for Van Drivers
FM12 LIQUORS: Gomez Sues Over Failure to Pay Overtime
FORESCOUT TECHNOLOGIES: Facing Smith Class Suit in New York
FRANCESCA'S HOLDING: Court Refuses Amendments to Magee FLSA Suit
FRIENDS FIRST: Faces Mansfield Wage-and-Hour Suit in Arkansas
G.F. MANAGEMENT: Marrero Sues Over Background Checks
GENESIS HEALTHCARE: Espinosa Suit Seeks to Certify 5 Subclasses
GENWORTH FINANCIAL: Brighton & Daubenmier Suits Consolidated
GENWORTH FINANCIAL: Continues to Defend Burkhart Class Action
GENWORTH FINANCIAL: Final Hearing on Skochin Settlement Next Month
GENWORTH FINANCIAL: TVPX ARX Inc. Suit Underway in Virginia
GREEN POGO: Adam Suit Transferred to New Jersey
HERBALIFE NUTRITION: Still Defends Rodgers Class Action
HOFSTRA UNIVERSITY: Migliore Seeks Tuition Fee Refund
HOMELAND SECURITY: Noncitizen Children Class Sought
HYDROSTATIC OIL: Faces Mosley Suit Over Unpaid Overtime Wages
INNOVATIVE TECHNOLOGY: Monegro Alleges Violation under ADA
INOGEN INC: Bid to Dismiss California Securities Suit Pending
INTERSECT ENT: Yaron Class Suit Underway in California
JEFFERSON CAPITAL SYSTEMS: Stallworth Files FDCPA Suit in New York
KUSHAGRAM: Parker Sues Over Unsolicited Text Messages
LIVE NATION: Still Defends Suits Related to Overpriced Tickets
LUMBER LIQUIDATORS: Sept. 24 Final Approval Hearing on Gold Accord
LUMBER LIQUIDATORS: Steele Class Action Still Ongoing in Canada
MCGRAW HILL LLC: Uchenik Suit Transferred to New York
MICHIGAN DEPARTMENT: Truss Seeks to Certify Three Subclasses
MOODY'S CO-WORKER: Purinton Sues Over Unpaid Wages for Technicians
NEWARK CITY, NJ: Fails to Pay Minimum & OT Wages, Aziz et al Claim
NEWELL BRANDS: Denies Blind Users Full Website Access, Jaquez Says
NORTHWESTERN MUTUAL: Wins Prelim. OK of Russett Suit Settlement
OAK RIDGE: Averted Class Action Over Patient Abuses
ONE WAY: Kiper et al. Sue Over Unpaid OT, Wrongful Termination
PURDUE PHARMA: Grimes County Joins Ongoing Opioid Class Action
RATTLER HOLDINGS: Monegro Alleges Violation of ADA
RIPPLE LABS: Court Consolidates Sostack and BMA Securities Suits
RLI CORP: Barrientos-Larios Suit Transferred to Calif. Dist. Ct.
SHIRE PLC: Meijer One Step Closer to Leading Intuniv Class Action
SYNCHRONY BANK: Court Sustains Arbitration in Auguste FLSA Suit
TAO GROUP: Fails to Pay Minimum Wage, Angel et al. Allege
TD AMERITRADE: Continues to Defend Hawkes Class Suit
TDS ENTERPRISES: Douglas Files Suit in New York
TENNESSEE: Court Dismisses Inmate Pro Se Suit Filed by Derrick
THERAPY PLLC: Estrada Files FLSA Suit in New York
TREND LAB LLC: Monegro Alleges Violation under ADA
U.S. OIL FUND: Palacios Sues Over Incomplete, Misleading Reports
UNIV. OF DELAWARE: Ninivaggi et al. Seek Tuition Fee Refund
VALUECAP LENDERS: Naiman Sues Over Unsolicited Phone Calls
VIKING RANGE: Monegro Asserts Breach of ADA
VOLVO CARS: Court Dates Set in Defective Sunroof Class Action
WESTERN UNION: Class Suit by Argentine Consumer Group Stayed
WESTERN UNION: Frazier Class Suit Still Stayed Pending Arbitration
WESTERN UNION: Smallen Class Suit Concluded
WYNN RESORTS: To Seek Dismissal of Ferris Securities Suit
[*] "Phase II" of COVID-19 Class Actions Looms
*********
4E BRAND: Pepe et al. Sue Over Defective Methanol-Based Products
----------------------------------------------------------------
KATHERINE PEPE, PATRICIA DONADIO, and JUNE VONDERCHEK, on behalf of
themselves and all others similarly situated, Plaintiffs, v. 4E
BRAND NORTH AMERICA, LLC, Defendant, Case No. 7:20-cv-06494
(S.D.N.Y., August 14, 2020) is a class action against Defendant for
the manufacture and sale of Hand Sanitizer Products, all of which
suffer from an identical design defect as they are labeled to
contain ethanol as the active ingredient, but are in fact
contaminated with and contain methanol which is toxic and can cause
death.
The Products include Assured Aloe Hand Sanitizer, Assured Clear
Hand Sanitizer, Assured Instant Hand Sanitizer (Vitamin E and
Aloe), Assured Instant Hand Sanitizer (Aloe and Moisturizers),
Blumen Antibacterial Fresh Citrus Hand Sanitizer, Klar and Danver
Instant Hand Sanitizer, Hello Kitty by Sanrio Hand Sanitizer, the
Honeykeeper Hand Sanitizer, Blumen Instant Hand Sanitizer, Blumen
Advanced Clear Hand Sanitizer, Blumen Aloe Advanced Hand Sanitizer,
Blumen Advanced Hand Sanitizer, Blumen Clear Hand Sanitizer, Blumen
Clear Tea Tree Hand Sanitizer, and Modesa Clear Gel Antibacterial.
According to the complaint, each of the Products suffer from the
same material Defect -- contamination with and presence of
methanol. Exposure to methanol can result in nausea, vomiting,
headache, blurred vision, permanent blindness, seizures, coma,
permanent damage to the nervous system or death. The presence of
methanol renders the Products unsuitable for their principal and
intended purpose and renders them worthless.
Each of the Products is prominently labeled as a "Hand Sanitizer"
on the front of the label, and list Ethyl Alcohol 70% on the back
of the label as the "active ingredient." None of the Products
mention or disclose that the Products are contaminated with
methanol, or that the "active ingredient" is in fact to a large
extent methanol, not Ethyl Alcohol -- or "ethanol." There is a
critical distinction between ethyl and methanol. Ethyl Alcohol is
an accepted active ingredient for hand sanitizers, while methanol
is a toxic substance that cannot be consumed by or come in contact
with humans, and makes the Products wholly toxic, worthless, and
unsuitable for use as hand sanitizers.
Plaintiffs bring claims against Defendant individually and on
behalf of a class of all other similarly situated purchasers of the
Products for (I) breach of express warranty; (II) breach of implied
warranty of fitness; (III) unjust enrichment; (IV) violation of New
York's General Business Law, GBL Section 349; (V) violation of New
York's General Business Law, GBL Section 350; and (VI) negligent
misrepresentation.
4e Brands North America, LLC is a San Antonio, Texas-based company
that manufactures, markets, and distributes hand sanitizer products
throughout the United States, including in New York.[BN]
The Plaintiff is represented by:
Philip L. Fraietta, Esq.
BURSOR & FISHER, P.A
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: pfraietta@bursor.com
AFTEROURS INC: Website Not Accessible to Blind, Katt Says
---------------------------------------------------------
DAVID KATT, individually and on behalf of all others similarly
situated, Plaintiff v. AFTEROURS, INC., Defendant, Case No.
1:20-cv-02216-STV (D. Colo., July 28, 2020) alleges violation of
the Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's website
-- www.afteroursinc.com -- is not fully or equally accessible to
blind and visually-impaired consumers in violation of the Americans
with Disabilities Act. The Plaintiff seeks a permanent injunction
to cause a change in the Defendant's corporate policies, practices,
and procedures so that the Defendant's website will become and
remain accessible to blind and visually-impaired consumers.
Afterours, Inc. provides telemedicine and in-clinic services. [BN]
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
ALNYLAM PHARMA: Bid to Dismiss CCERF Class Suit Under Advisement
----------------------------------------------------------------
Alnylam Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 6, 2020, for
the quarterly period ended June 30, 2020, that the court in the
putative securities class action action suit initiated by the
Chester County Employees Retirement Fund (CCERF) has taken the
defendants' motion to dismiss under advisement.
On September 12, 2019, the Chester County Employees Retirement Fund
(CCERF), individually and on behalf of all others similarly
situated, filed a purported securities class action complaint for
violation of federal securities laws against the company, certain
of its current and former directors and officers, and the
underwriters of the company's November 14, 2017 public stock
offering, in the Supreme Court of the State of New York, New York
County.
On November 7, 2019, plaintiff filed an amended complaint, or the
New York Complaint.
The New York Complaint is brought on behalf of an alleged class of
those who purchased our securities pursuant and/or traceable to our
November 14, 2017 public stock offering.
The New York Complaint purports to allege claims arising under
Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, as
amended, and generally alleges that the defendants violated the
federal securities laws by, among other things, making material
misstatements or omissions concerning the results of our APOLLO
Phase 3 clinical trial of patisiran.
The plaintiff seeks, among other things, the designation of the
action as a class action, an award of unspecified compensatory
damages, rescissory damages, interest, costs and expenses,
including counsel fees and expert fees, and other relief as the
court deems appropriate.
All defendants filed a joint motion to dismiss the New York
Complaint in its entirety on December 20, 2019. Plaintiff's
response to that motion was filed on February 3, 2020, and
defendants filed a joint reply on March 4, 2020.
On June 2, 2020, the Court heard oral argument on defendants'
motion, at which time it took the motion under advisement.
Alnylam Pharmaceuticals, Inc., a biopharmaceutical company, focuses
on discovering, developing, and commercializing RNA interference
(RNAi) therapeutics. The company was founded in 2002 and is
headquartered in Cambridge, Massachusetts.
ALNYLAM PHARMA: Leavitt Seeks Leave to File Amended Complaint
-------------------------------------------------------------
Alnylam Pharmaceuticals, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 6, 2020, for
the quarterly period ended June 30, 2020, that plaintiff Caryl Hull
Leavitt's motion seeking leave to file a further amended class
action complaint remains pending.
On September 26, 2018, Leavitt, individually and on behalf of all
others similarly situated, filed a class action complaint for
violation of federal securities laws against the company, its Chief
Executive Officer and its former Chief Financial Officer in the
United States District Court for the Southern District of New York.
By stipulation of the parties and Order of the Court dated November
20, 2018, the action was transferred to the United States District
Court for the District of Massachusetts.
On May 8, 2019, the Court entered an order appointing a lead
plaintiff, and on July 3, 2019, lead plaintiff filed a consolidated
class action complaint, or the Complaint.
In addition to the originally named defendants, the Complaint also
named as defendants certain of the company's other executive
officers, and purported to be brought on behalf of a class of
persons who acquired the company's securities between September 20,
2017 and September 12, 2018 and sought to recover damages caused by
defendants' alleged violations of the federal securities laws and
to pursue remedies under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated
thereunder.
The Complaint alleged, among other things, that the defendants made
materially false and misleading statements related to the efficacy
and safety of the company's product, ONPATTRO.
The plaintiff sought, among other things, the designation of this
action as a class action, an award of unspecified compensatory
damages, interest, costs and expenses, including counsel fees and
expert fees, and other relief as the court deems appropriate.
All defendants filed a motion to dismiss the Complaint in its
entirety on July 31, 2019. The motion to dismiss was fully briefed
on September 30, 2019. On March 23, 2020, the Court allowed the
company's motion and dismissed the Complaint without prejudice.
Pursuant to a prior Order of the Court, on June 1, 2020, plaintiff
filed a motion seeking leave to file a further amended complaint.
That motion was fully briefed on June 22, 2020, and remains pending
with the Court.
Alnylam Pharmaceuticals, Inc., a biopharmaceutical company, focuses
on discovering, developing, and commercializing RNA interference
(RNAi) therapeutics. The company was founded in 2002 and is
headquartered in Cambridge, Massachusetts.
APPLE INC: Court Narrows Claims in Securities Litigation
--------------------------------------------------------
Judge Yvonne Gonzalez Rogers of the U.S. District Court for the
Northern District of California granted in part and denied in part
the Defendants' motion to dismiss the Apple Inc. securities
litigation.
The case is IN RE APPLE INC. SECURITIES LITIGATION, Case No.
19-cv-02033-YGR (N.D. Cal.).
Lead Plaintiff Employees' Retirement System of the State of Rhode
Island commenced the securities class action litigation alleging
false and misleading statements and omissions between Aug. 2, 2017
and Jan. 2, 2019, against Defendants Apple, Timothy D. Cook (CEO of
Apple), and Luca Maestri (CFO). Specifically, the Plaintiff raised
two causes of action: (1) violation of Section 10(b) of the
Securities Exchange Act and Rule 10b-5 promulgated thereunder by
all the Defendants, and (2) violation of Section 20(a) of the
Exchange Act by the individual Defendants.
Apple is a multinational technology company that designs, develops,
and sells consumer electronics, computer software, and online
services. It is the world's largest information technology by
revenue and enjoys significant reach in emerging markets, including
China. To profit from the iPhone, Apple relies significantly on
"upgrading" -- that is, the practice where consumers replace their
older iPhones with a newer model. Apple has released on average
one new iPhone model per year between 2007 and 2015 to encourage
upgrading. Greater China (a region that includes mainland China,
Hong Kong, and Taiwan) represents an important market for Apple's
iPhone business.
In 2016, reports surfaced that older iPhones were unexpectedly
shutting down. Apple initially responded by offering battery
replacement, free of charge to a small range of devices. However,
as reports showed that a greater number of phones were affected,
Apple released a software update, iOS 10.2.1, that purportedly
addressed the issue and that had the effect of "throttling," or
slowing down, iPhone models 6 and later. Apple did not disclose
that the software update throttled old phones, but only claimed
that it addressed the shutdown issue.
In December 2017, an independent report revealed that Apple's
software updates were causing the slowdown of older iPhones. The
report also revealed that the unexpected shutdowns were caused by
aging batteries and could be remedied by replacing the batteries
(at the low cost of $79 per battery). Shortly after, Apple
admitted that it had deliberately throttled older model iPhones to
save on battery life and avoid unexpected shutdowns. Consumers
responded with outrage. Congress sent Apple a letter demanding
answers about throttling, and Apple responded, in part, by assuring
that "hardware updates" in newer iPhones would address the shutdown
issues instead.
The throttling revelations resulted in significant negative
publicity for Apple, as well as multiple government investigations,
consumer lawsuits, and regulatory fines. However, the market did
not immediately react to the revelations. Apple continued to
throttle iPhones throughout 2017 and into 2019.
The Plaintiff alleges that the Defendants operated with the intent
to deceive, manipulate, or defraud -- or at least with deliberate
recklessness—based on the following additional facts. First,
Cook's and Maestri's trading patterns were suspicious and unusual
during the time. Second, the Greater China region was highly
important to Apple's business and strategy. Third, the Plaintiff
alleges that the individual Defendants knew, or at least recklessly
disregarded, that Apple iOS software updates were being used by the
Company to throttle its iPhones and were aware of the public's
negative reaction to throttling, especially in Greater China.
Fourth, the Defendants possessed motive and opportunity to
accelerate the iPhone upgrade cycle artificially because growth in
the iPhone industry stagnated in 2016 and throttling reversed that
decline by forcing premature upgrades. Fifth, statements by former
Apple employees and employees of Apple's competitors and suppliers
show that defendants tracked iPhone sales and had information that
iPhone demand was stalling, as well as that the battery replacement
program would further hurt demand. Finally, the Plaintiff claims
that Apple attempted to obscure declining sales by no longer
reporting unit sales.
The Defendants moved to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) and the Private Securities Litigation Reform Act
of 1995 ("PSLRA"). They challenge the Plaintiff's Section 10(b)
and Rule 10b-5 claims on four grounds: (1) the complaint presents
impermissible puzzle pleading that fails to conform to the
requirements of Federal Rule of Civil Procedure 8; (2) none of the
challenged statements are false or misleading, or otherwise
actionable; (3) the Plaintiff fails to establish a strong inference
of scienter, and (4) plaintiff fails to establish "loss causation"
for certain statements. The Defendants further moved to dismiss
the Plaintiff's Section 20(a) claim on the ground that it fails to
plead a primary violation of Section 10(b).
The Defendants request judicial notice of 64 documents in support
of their motion to dismiss. For each document, they rely on either
incorporation by reference or judicial notice pursuant to Federal
Rule of Evidence 201. Specifically, they claim that Exhibits 3-44
are incorporated by reference through the Corrected Consolidated
and Amended Class Action Complaint for Violation of the Federal
Securities Laws ("CCAC"), while the remaining Exhibits are subject
to judicial notice. The Plaintiff does not oppose the Defendants'
request. The Judge finds incorporation by reference proper for
these documents.
The Defendants seek judicial notice of Exhibits 45-53, which are
additional SEC filings that were not cited in the CCAC. Because
the Plaintiff does not dispute the authenticity of the SEC filings,
the Judge finds judicial notice of the existence of statements in
these filings proper.
The Defendants also seek judicial notice of Exhibits 1-2 and 54-64.
Exhibit 1 is a Reddit post cited in the CCAC, while Exhibits 2 and
54-64 are news articles discussing Apple's throttling, the battery
replacement program, and the program's potential effect on iPhone
demand. The Judge will take judicial notice of these documents not
for the truth of the matter asserted, but for the purpose of
showing that particular information was available to the stock
market.
Finally, Exhibit 49 is a Yahoo Finance report showing Apple's
historical stock prices for the Class Period. Because the
Plaintiff does not dispute the authenticity of the Yahoo report,
the Judge takes judicial notice of Apple's historical stock
prices.
Turning to the motion to dismiss, Judge Gonzalez granted the
Defendants' motion to dismiss as to all challenged statements
except those alleged in paragraphs 285 (Apple's year-over-year
revenue growth rate accelerated for the fourth consecutive quarter
and drove EPS growth of 24 percent in the September quarter) and
286 (Apple's SEC filings contained misleading statements, and they
therefore form the basis of the Plaintiff's claims), for which the
Defendants' motion is denied.
Judge Gonzalez finds that the statements challenged by the
Plaintiff in paragraphs 271, 272, 285, 286, 287, 288, 296, 297,
298, 304, 325, 326, 327, 350, 351, and 354 are not actionable. In
a few instances, the Plaintiff challenges Defendants' statements
about Apple's business in Greater China. The Plaintiff does not
allege that overall revenue in China was declining (judicially
noticed documents show that it was increasing), so the Defendants'
statements about that revenue are not misleading. However, the
CCAC does allege declining iPhone sales and low market share in
China beginning in late 2017 and 2016, respectively. Several of
the Defendants' challenged statements directly contradict these
allegations.
The Judge finds that these material misrepresentations or omissions
are sufficiently pled to be false or misleading: (i) statements
about strong market share and iPhone sales in China; (ii)
statements about tracking and considering the effect of the battery
replacement program on demand; and (iii) Cook's letter to Congress.
The Judge also finds that the Plaintiff fails to allege scienter
for statements in paragraphs 299, 300, 301, 317, 328, 329, 330,
332, 336, 345, and 353, but finds scienter adequately alleged for
statements in paragraphs 385 and 386. The Plaintiff fails to
allege loss causation for the WeChat statement. The Plaintiff's
Section 20(a) claim against the individual Defendants fails to the
same extent that it fails to allege a predicate claim under Section
10(b).
Based on the procedural history of the case, and the findings in
the Order, the Judge intends to reconsider the motion for lead
counsel as discussed at considerable length with the counsel. The
Plaintiff's counsel will meet and confer with counsel for Norfolk
for the orderly transition of leadership.
A full-text copy of the District Court's June 2, 2020 Order is
available at https://is.gd/47bdMJ from Leagle.com.
ATLANTIC LOTTERY: Averts Class Action Over VLTs
-----------------------------------------------
Daniel Thompson, writing for Casino Reports, reports that the
Supreme Court of Canada recently issued its ruling on highly
popular video lottery terminals. A previous Newfoundland and
Labrador Court of Appeal decision allowing a class-action lawsuit
against the machines to go was overturned, so it will not be able
to proceed. Atlantic Lottery Corporation was accused of overseeing
VLTs that are illegal and harmful for the players.
According to the allegations listed in the class-action lawsuit,
the gaming devices offered by the Atlantic Lottery Corporation have
deeply rooted deceptive nature and have addictive characteristics.
Back in 2017, the lawsuit received a class-action status after a
substantial period of waiting for approval. Douglas Babstock and
Fred Small filed the lawsuit pointing out the devastating impact of
VLT games on their lives and financial state.
Recent Developments
Now it is clear that the class-action targeting the popular video
lottery terminals does not have the permission to proceed. The
Supreme Court of Canada pointed out in its ruling that the claims
made by the two individuals affected by the gaming devices back in
the days are bound to fail at some point. They claim that the
devices are deliberately created in a way that deceives players.
The individuals claim that the video lottery terminals have a
deceptive nature that presents the action in a way that makes
people think they are winning, when in fact they are losing. The
visuals and sounds used in their daily operation also have
addictive qualities, leaving players wanting more, keeping them
engaged in gaming for hours on end. The lawsuit also claims that
the machines should be considered illegal under the Criminal Code
of Canada.
The class-action lawsuit covers a wide range of gaming enthusiasts
that have once engaged in video lottery terminal gaming in-person.
They join the claim that the machines are deceitful and should be
banned. Upwards of 30,000 individuals hailing from Newfoundland and
Labrador are part of this class-action lawsuit.
Superior Court Ruling
December 2018 saw the Newfoundland and Labrador Court of Appeal
give green light to the lawsuit while it dismissed Atlantic Lottery
Corporation's previous filed notice of appeal. The outcome of this
class action lawsuit could reshape Canada's gaming field and lead
to a ban of VLTs not only in the area but in other provinces as
well.
The class-action lawsuit covers a wide range of gaming enthusiasts
that have once engaged in video lottery terminal gaming in-person.
They join the claim that the machines are deceitful and should be
banned. Upwards of 30,000 individuals hailing from Newfoundland and
Labrador are part of this class-action lawsuit.
Now the high court nixed the entire statement of claim. The
Superior Court stated that the allegations that these machines are
similar to the three-card monte stood no ground in court. The Crown
corporation overseeing the devices in Atlantic Canada expressed its
contentment with the outcome of the legal battle, claiming that
responsible gaming is essential for its operation and it will
continue protecting the individuals interested in VLT gaming.
Kirk Baert is the lawyer representing the plaintiffs of this
groundbreaking class-action lawsuit. He pointed out that the ruling
spells death for the efforts against these gaming devices sprinkled
across Atlantic Canada. The issue will not be explored any further,
as it became clear and Mr. Baert pointed out that this is a
disappointing turn of events. [GN]
AUTO-OWNERS INSURANCE: Court Tosses Gordon Suit Over Denied Claim
-----------------------------------------------------------------
The U.S. District Court for the Southern District of Georgia issued
an Order granting the Defendant's unopposed motion to dismiss the
case captioned CHRISTINE GORDON and PRESCIOUS USRY v. AUTO-OWNERS
INSURANCE COMPANY, Case No. CV 120-004 (S.D. Ga.).
Effective September 20, 2017, the Defendant issued a homeowner's
policy, policy number 51-406-002-00 ("Policy"), to the Plaintiffs
insuring the property located at 2222 Walden Drive, in Augusta,
Georgia ("Property"). The Property caught fire on December 8, 2017,
causing damage to the Property. The Plaintiffs filed claim number
300-347218-2017 ("Claim") under the Policy requesting $296,380 in
coverage for the damage the fire caused. The Plaintiffs contend
they are not responsible for starting the fire. Still, the
"Defendant denied ... [P]laintiffs' [C]laim on or about September
7, 2018."
Over one year later, the Plaintiffs filed the present action in the
Superior Court of Richmond County, Georgia, asserting causes of
action for declaratory judgment and insurer's bad faith refusal to
pay. The Defendant removed the case to this Court and filed the
present motion. To date, the Plaintiffs have filed no response to
the Defendant's motion to dismiss, and the motion is, therefore,
deemed unopposed.
At the outset, the Defendant contends that this case is properly
analyzed under Georgia's Declaratory Judgment Act. According to the
Defendant, "courts in the Eleventh Circuit have generally addressed
declaratory judgment claims in removal actions pursuant to the law
under which they were asserted." (quoting Pippen v. Indymac
Bank/One W. Bank, No. 1:09-CV-3570-CAP, 2010 WL 11598156, at *2 n.1
(N.D. Ga. Mar. 4, 2010).).
Because the majority of the Defendant's argument focuses on
interpretations of the Georgia Declaratory Judgment Act, and the
Plaintiffs offer no opposition, the Court says it is left with
little guidance to determine whether the Plaintiffs state a claim
under the Declaratory Judgment Act.
The gist of the Defendant's argument is that the present action for
declaratory judgment fails to allege a threat of any future injury.
The Plaintiffs also accuse the Defendant of bad faith refusal to
pay.
In order to succeed on a claim pursuant to O.C.G.A. Section
33-4-6(a), the plaintiff must demonstrate that the insurance policy
at issue covers the loss, citing Cowart v. Nautilus Ins. Co., No.
4:17-cv-142, 2019 WL 254662, at *9 (S.D. Ga. Jan. 17, 2019). The
Courts says because the bad faith claim may not continue on its
own, it is due to be dismissed. Hence, the Plaintiffs fail to state
a claim for punitive damages.
Accordingly, the Court ruled that the Defendant's unopposed motion
to dismiss is GRANTED. The Clerk is DIRECTED to ENTER JUDGMENT in
favor of the Defendant and against the Plaintiffs; TERMINATE all
motions and deadlines, if any; and CLOSE this case.
A full-text copy of the District Court's May 28, 2020 Order is
available at https://tinyurl.com/y7z4u5s4 from Leagle.com.
AVIVA INSURANCE: Canadian Hotels Launch Class Action
----------------------------------------------------
Ross Marowits, writing for The Canadian Press, reports that
Canadian hotels are the latest group to launch a class-action
lawsuit resulting from COVID-19 after they were denied insurance
coverage for business income lost because of the pandemic.
In a statement of claim, Lerners LLP alleged that Aviva Insurance
Company of Canada was in breach of contract when it denied the
hotels' loss of business income coverage after the federal and
provincial governments declared states of emergency, restricting
their business owing to the outbreak of novel coronavirus.
It is seeking $150,000,000 including loss of business income and
the accountants' fees. Each hotel has up to $500,000 of coverage.
"We are still quantifying the specific loss for the representative
plaintiff and putative class members, but the losses are expected
to be significant," a Lerners spokeswoman said.
The claim said hotels paid premiums for loss of business income
insurance with the expectation that Aviva would act in good faith.
However, the insurance company notified hotel customers that the
coverage applies only to outbreaks that occurred "at or within the
applicable area of the insured premises."
"We know these are challenging times for everyone. And like many,
the hospitality industry has been severely impacted by the COVID-19
pandemic," Aviva said in a statement.
"Unfortunately in this instance there is no coverage for provincial
wide shutdown orders as a result of a worldwide pandemic. As this
matter is in litigation, it wouldn't be appropriate for us to
comment further."
The lawsuit was filed on behalf of Roshan Holdings Inc., which owns
and operates two hotels, a Home 2 by Hilton located in Milton,
Ont., and a Hampton Inn located in Peterborough, Ont.
The Ontario government declared a provincial state of emergency on
March 17 to help contain the spread of the pandemic. Other
provinces ordered the mandatory closing of all places of
non-essential business.
"Although the hotels were not completely closed, their operations
were significantly restricted," said the claim. "The hotels could
not offer food and beverage service, and all of the amenities
including the pool and gym were mandated to close under the Closure
Orders due to COVID-19."
No one rented rooms as Canadians were told to stay home and
international borders were closed to tourists.
The class action, which could involve hundreds of hotels, needs to
be approved by a judge.
Multiple class-action lawsuits have been filed in Canada against
insurance companies, airlines, a meat-packaging company, retirement
homes, Correctional Service Canada and others resulting from
COVID-19. [GN]
BARING BDC: Appeal in Triangle Capital Securities Suit Pending
--------------------------------------------------------------
Barings BDC, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that the appeal from a ruling
in the class action suit entitled, In re Triangle Capital Corp.
Securities Litigation, Master File No. 5:18-cv-00010-FL, remains
pending before the United States Court of Appeals for the Fourth
Circuit.
The Company and certain of its former executive officers have been
named as defendants in two putative securities class action
lawsuits, each filed in the United States District Court for the
Southern District of New York (and then transferred to the United
States District Court for the Eastern District of North Carolina)
on behalf of all persons who purchased or otherwise acquired our
common stock between May 7, 2014 and November 1, 2017.
The first lawsuit was filed on November 21, 2017, and was captioned
Elias Dagher, et al., v. Triangle Capital Corporation, et al., Case
No. 5:18-cv-00015-FL (the "Dagher Action").
The second lawsuit was filed on November 28, 2017, and was
captioned Gary W. Holden, et al., v. Triangle Capital Corporation,
et al., Case No. 5:18-cv-00010-FL (the "Holden Action").
The Dagher Action and the Holden Action were consolidated and are
currently captioned In re Triangle Capital Corp. Securities
Litigation, Master File No. 5:18-cv-00010-FL.
On April 10, 2018, the plaintiff filed its First Consolidated
Amended Complaint. The complaint alleged certain violations of the
securities laws, including, among other things, that the defendants
made certain materially false and misleading statements and
omissions regarding the Company's business, operations and
prospects between May 7, 2014 and November 1, 2017.
The plaintiff seeks compensatory damages and attorneys' fees and
costs, among other relief, but did not specify the amount of
damages being sought.
On May 25, 2018, the defendants filed a motion to dismiss the
complaint. On March 7, 2019, the court entered an order granting
the defendants' motion to dismiss. On March 28, 2019, the plaintiff
filed a motion seeking leave to file a Second Consolidated Amended
Complaint.
On September 20, 2019, the court entered an order denying the
plaintiff's motion for leave to file a Second Consolidated Amended
Complaint and dismissing the action with prejudice.
On October 17, 2019, the plaintiff filed a notice of appeal seeking
review of the court's September 20, 2019 order. The plaintiff filed
its opening brief with the United States Court of Appeals for the
Fourth Circuit on January 6, 2020. The defendants filed their
response brief on February 28, 2020, and the plaintiff filed its
reply brief on March 27, 2020.
The appeal is currently pending before the United States Court of
Appeals for the Fourth Circuit.
Barings BDC, Inc. is a business development company specializing in
private equity and mezzanine investments. Triangle Capital
Corporation was incorporated on October 10, 2006 and is based in
Raleigh, North Carolina.
BASIL BRICK: Faces Naula Wage-and-Hour Suit in E.D.N.Y.
-------------------------------------------------------
JOFFREE NAULA, individually and on behalf of others similarly
situated, Plaintiff, -against- BASIL BRICK OVEN PIZZA CORP. (D/B/A
BASIL BRICK OVEN), UGO MATTEI, and VALENTINO MATTEI, Defendants,
Case No. 1:20-cv-03714 (E.D.N.Y., August 14, 2020) is an action
brought by the Plaintiff on behalf of himself, and other similarly
situated individuals, for unpaid minimum 1and overtime wages
pursuant to the Fair Labor Standards Act of 1938, 29 U.S.C. Section
201 et seq., and for violations of the N.Y. Labor Law Section 190
et seq. and 650 et seq., and the "spread of hours" and overtime
wage orders of the New York Commissioner of Labor codified at N.Y.
COMP. CODES R. & REGS. tit. 12, Section 146-1.6, including
applicable liquidated damages, interest, attorneys' fees and
costs.
Plaintiff was employed as a cook at Basil Brick Oven Pizza located
in New York from approximately January 15, 2017 until on or about
February 5, 2020.
According to the complaint, Plaintiff worked for Defendants in
excess of 40 hours per week, without appropriate minimum wage,
overtime, and spread of hours compensation for the hours that he
worked. Defendants failed to maintain accurate recordkeeping of the
hours worked and failed to pay Plaintiff appropriately for any
hours worked, either at the straight rate of pay or for any
additional overtime premium.
Defendants also failed to pay Plaintiff the required "spread of
hours" pay for any day in which he had to work over 10 hours a day.
Defendants repeatedly failed to pay Plaintiff wages on a timely
basis. Defendants maintained a policy and practice of requiring
Plaintiff Naula and other employees to work in excess of 40 hours
per week without providing the minimum wage and overtime
compensation required by federal and state law and regulations.
Basil Brick Oven Pizza Corp. (d/b/a Basil Brick Oven) is a New
York-based pizzeria company.[BN]
The Plaintiff is 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
BAUERFEIND USA: Website Inaccessible to Blind, Jaquez Claims
------------------------------------------------------------
RAMON JAQUEZ, on behalf of himself and all others similarly
situated, Plaintiff v. BAUERFEIND USA, INC., Defendant, Case No.
1:20-cv-06312 (S.D.N.Y., August 11, 2020) is a class action
complaint brought against Defendant for its alleged violations of
the Americans with Disabilities Act (ADA).
Plaintiff is a blind, visually-impaired handicapped person, and a
member of a protected class of individuals under the ADA.
According to the complaint, Plaintiff attempted to visit
Defendant's website on or around July 2020 by using a popular
screen reading software called NonVisual Desktop Access 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 that denied blind people access.
The complaint asserts that Defendant allegedly failed to maintain
and operate its website in a way to make it fully accessible to
Plaintiff and for other blind or visually-impaired people.
Bauerfeind USA, Inc. is a medical brace and support company that
owns and operates the website bauerfeind.com. [BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Ave., Suite 300
Asbury Park, NJ 07712
Tel: (732) 695-3282
Fax: (732) 298-6256
Email: Yzelman@MarcusZelman.com
BB CRAFTS INC: Jaquez Alleges Violation under ADA
-------------------------------------------------
B.B. Crafts Inc. is facing a class action lawsuit filed pursuant to
the Americans with Disabilities Act. The case is styled as Ramon
Jaquez, on behalf of himself and all others similarly situated,
Plaintiff v. B.B. Crafts Inc., Defendant, Case No. 1:20-cv-06313
(S.D. N.Y., Aug. 11, 2020).
BBCrafts store offers tulle fabrics, ribbons, wedding supplies,
tablecloths and deco mesh at specialty wholesale prices.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
Marcus & Zelman, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Tel: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
BFW DENVER: Website Not Accessible to Blind, Katt Says
------------------------------------------------------
DAVID KATT, individually and on behalf of all others similarly
situated, Plaintiff v. BFW DENVER LLC, Defendant, Case No.
1:20-cv-02217-CMA-NYW (D. Colo., July 28, 2020) alleges violation
of the Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's website
-- www.bfwdenver.com -- is not fully or equally accessible to blind
and visually-impaired consumers in violation of the Americans with
Disabilities Act. The Plaintiff seeks a permanent injunction to
cause a change in the Defendant's corporate policies, practices,
and procedures so that the Defendant's website will become and
remain accessible to blind and visually-impaired consumers.
BFW Denver LLC provides alcoholic beverages. The Company
specializes in wines. [BN]
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
BRIGHAM YOUNG UNIVERSITY: Hiatt Files Suit in Utah
--------------------------------------------------
A class action lawsuit has been filed against Brigham Young
University. The case is styled as Chase Hiatt, an individual on
behalf of himself and all others similarly situated, Plaintiff v.
Brigham Young University, a Utah corporation, Defendant, Case No.
4:20-cv-00085-DN (D. Utah, Aug. 5, 2020).
The docket of the case states the nature of suit as Contract: Other
filed pursuant to the Diversity-Other Contract.
Brigham Young University is a private research university owned by
The Church of Jesus Christ of Latter-day Saints and located in
Provo, Utah.[BN]
The Plaintiff is represented by:
Michael Jay Watton, Esq.
Watton Law Group
301 W Wisconsin Ave 5th FL
Milwaukee, WI 53203
Tel: (414) 273-6858
Email: wlgslc@wattongroup.com
CEMPRA INC: 4th Cir. Affirms Dismissal of Janies Securities Suit
----------------------------------------------------------------
The United States Court of Appeals, Fourth Circuit, issued an
Opinion affirming the District Court's dismissal of the securities
case captioned CHARLES CRAIG JANIES; ROBERT F. COLWELL, JR.;
JENNIFER COLWELL, Plaintiffs-Appellants, and JOHNATHAN HIRTENSTEIN;
DONALD B. HALLOWES, Plaintiffs v. CEMPRA, INC.; PRABHAVATHI B.
FERNANDES; MARK W. HAHN; DAVID W. OLDACH, Defendants-Appellees,
Case No. 18-2415 (4th Cir.).
Plaintiffs Charles Janies, Robert Colwell, Jr., and Jennifer
Colwell appeal the dismissal of their lawsuit alleging securities
fraud, which was filed as a putative class action against Cempra,
Inc. and its former officers and directors.
Cempra was a publicly traded pharmaceutical company focused on the
development of new antibiotics. In 2015 and 2016, Cempra became a
popular choice for investors based on the hope that its lead drug,
solithromycin, would receive approval from the Food and Drug
Administration (FDA) for treatment of community-acquired bacterial
pneumonia (CABP). The Plaintiffs represent shareholders, who
invested in Cempra in the sixteen months preceding the FDA's review
of solithromycin in November 2016. The shareholders incurred
significant losses when Cempra's stock price decreased sharply
after the FDA expressed safety concerns regarding the drug's impact
on the liver.
The Plaintiffs filed suit seeking to recoup their losses under
Sections (10)(b) and 20(a) of the Securities Exchange Act of 1934.
In their putative class-action complaint, the Plaintiffs averred
that the Defendants were aware that solithromycin's chances for FDA
approval were contingent on Cempra's ability to differentiate
solithromycin from Ketek, a similar drug. Ketek initially was
approved by the FDA but later was found to cause severe liver
injury, ultimately prompting congressional investigations. As
alleged by the Plaintiffs, the Defendants fraudulently induced them
to purchase stock in Cempra by misrepresenting solithromycin's
clinical data and by overstating the likelihood that solithromycin
would be reviewed favorably by the FDA.
The Defendants filed a motion to dismiss, which the District Court
granted in a comprehensive 83-page opinion. The District Court
determined that, contrary to the Plaintiffs' allegations, many of
Cempra's alleged misrepresentations were factually accurate, and
that Cempra adequately had informed the public of the risk of
unfavorable FDA review, given the well-known history of Ketek. More
broadly, the District Court concluded that the Plaintiffs'
complaint, viewed as a whole and in context, did not contain
factual allegations sufficient to give rise to the "strong
inference" of scienter required by the Private Securities
Litigation Reform Act of 1995 (PSLRA), and applicable precedent.
The Plaintiffs appealed from the District Court's judgment.
The Appeals Court notes that the foundation of the District Court's
opinion dismissing the complaint and, therefore, the focus of this
appeal, is the element of scienter. The requirements for pleading
scienter in a securities fraud claim are set forth in the PSLRA.
On appeal, the Plaintiffs argue that their complaint satisfies the
heightened standard for scienter under the PSLRA based on the
factual context of the alleged misrepresentations. The Plaintiffs
contend that several of the Defendants' misrepresentations were
made when the Defendants had actual knowledge that the statements
were false, which, according to the Plaintiffs, is "classic
evidence of scienter" under the precedent in S.E.C. v. Pirate
Investor LLC, 580 F.3d 233, 243 (4th Cir. 2009). Thus, the
Plaintiffs assert that they adequately alleged scienter,
particularly when considered in the context of the "[d]efendants'
motivation to maintain a high share price for Cempra."
These arguments were rejected by the District Court. The District
Court thoroughly reviewed the record and determined that the
Defendants' statements regarding the "generally asymptomatic" and
"reversible" nature of the observed ALT elevations "closely
track[ed] the reported clinical data." Thus, the District Court
concluded that those statements could not support any inference of
scienter. The District Court also found, among other things, that
the Defendants' statements regarding liver toxicity were true in
the context in which they were made and, therefore, did not
constitute evidence of scienter.
The Appeals Court opines that there is no error in the District
Court's thorough analysis. Viewing the facts alleged collectively,
the Appeals Court agrees with the District Court that the most
cogent inference arising from the complaint is that the Defendants
had great confidence in solithromycin's prospects and in their
interpretation of the clinical data, and that the FDA simply
disagreed with the Defendants' assessment. This inference strongly
is supported by the FDA's own documents, which largely "did not
conclude that Cempra's statements were factually inaccurate but
simply determined that more data should be obtained before drawing
those same positive interpretations."
For these reasons, the Appeals Court concludes that the inference
that the Defendants acted with fraudulent intent or severe
recklessness is not as cogent or compelling as the opposing
inference that they acted with a genuine confidence in
solithromycin's prospects and ultimately were mistaken, citing
Tellabs, 551 U.S. at 314. As the District Court recognized, such a
mistaken belief does not support a claim for securities fraud.
Accordingly, the Appeals Court affirms the District Court's
dismissal of the Plaintiffs' complaint.
A full-text copy of the Court Appeals' May 28, 2020 Memorandum and
Order is available at https://tinyurl.com/ya2yet7y from Leagle.com
ARGUED: Steven Francis Hubachek, Esq.--shubachek@rgrdlaw.com,
ROBBINS GELLER RUDMAN & DOWD LLP, in San Diego, California, for
Appellants.
Michael S. Hines, Esq.--michael.hines@skadden.com, SKADDEN, ARPS,
SLATE, MEAGHER & FLOM LLP, in Boston, Massachusetts, for
Appellees.
ON BRIEF: Trig R. Smith, Esq.--trigs@rgrdlaw.com, ROBBINS GELLER
RUDMAN & DOWD LLP, in San Diego, California; Michael I. Fistel,
Jr., Esq.--michaelf@johnsonfistel.com, JOHNSON FISTEL, LLP, in
Marietta, Georgia, for Appellants.
Lee M. Whitman, Esq.--lwhitman@wyrick.com, Samuel A. Slater,
Esq.--sslater@wyrick.com, WYRICK ROBBINS YATES & PONTON LLP, in
Raleigh, North Carolina; James R. Carroll,
Esq.--james.carroll@skadden.com, Emily M. Jennings,
Esq.--emily.jennings@skadden.com, SKADDEN, ARPS, SLATE, MEAGHER &
FLOM LLP, in Boston, Massachusetts, for Appellees.
CENTRAL VALLEY MEAT: Faces Class Action Over COVID-19 Outbreak
--------------------------------------------------------------
Brian Johnson, writing for KFSN, reports that meat processing
plants were hit hard and early by COVID-19 in the United States.
A San Diego law firm believes at least 200 employees at Central
Valley Meat Company in Hanford have tested positive for the disease
since an outbreak at the facility in April.
"Reportedly across the country, a lot of plants closed or they
slowed production," said Haeggquist & Eck Partner Aaron Olsen.
"Central Valley Meat did none of that. They didn't slow the
production at all. We still have a production line running full
speed."
Olsen represents one of the company's infected workers, Maria
Ornelas, who is the named plaintiff in a new class action lawsuit
against her employer.
Ornelas, according to the suit, was exposed to another worker who
tested positive for COVID in April.
"Indeed it is believed Central Valley Meat allowed multiple
employees to return to work the day after they tested positive for
COVID-19," the lawsuit says. "It is believed Central Valley Meat
knowingly allowed at least one employee to work up to five (5)
additional days after testing positive for COVID-19 . . ."
While on unpaid leave, the lawsuit says, Ornelas not only lost
bonus and incentive pay given to employees who worked during the
pandemic, but also received points toward discipline under an
existing 'no fault attendance' policy, which her lawyers say both
violates laws and encourages sick employees to work.
"So missing work is hard for them," Olsen said. "And then you have
these policies that are going to have this coercive effect and
incentivize them kind of to come into work even if they're sick. So
it's kind of dangling the carrot out in front of them."
The company's policies and other acts of misconduct, the lawsuit
claims, made the spread of the virus worse at the plant.
"The most significant measures disregarded by Central Valley Meat
include timely notifying workers of positive COVID-19 cases,
spacing workers at least six feet apart while working on the
processing line and modifying workplace policies that pressure sick
employees to report to work," the lawsuit continues.
Despite suing her employer, lawyers for Ornelas say she would like
to come back to work once her health improves.
"And hopefully have her return to a workplace that's safe and
healthy for her to return to," Olsen said. "And if those stars
align like we hope they will, then she has every intent on
returning."
A representative for Central Valley Meat says they have not been
properly served with the lawsuit yet, so have no comment at this
time. [GN]
CENTURA HEALTH: Faces Class Action Over Predatory Billing Practices
-------------------------------------------------------------------
Alia Paavola, writing for Becker's Healthcare, reports that a man
who had a knee replacement at a Centura Health hospital last year
has filed a class-action lawsuit against the Centennial,
Colo.-based organization for what he claims are predatory billing
practices, according to The Durango Herald.
The patient, Franklin Walter, went to Mercy Regional Medical Center
in Derango, Colo., for the routine surgery in April 2019, and two
months later, he received what he called a "surprise" medical bill
for $1,216.73, the newspaper reports.
Mr. Walter said that he had to sign a "consent for medical
treatment" contract requiring him to pay all costs associated with
the knee replacement before the procedure. That contract also
requires Centura to give patients an estimate of out-of-pocket
costs, according to the lawsuit.
But Mr. Walter claims Centura never gave him that out-of-pocket
estimate, which led him to believe he didn't owe anything out of
pocket for the knee replacement and resulted in the surprise bill.
The lawsuit also claims that Mercy Regional's lists out prices for
medical procedures failed to list the price of an arthroplasty, the
procedure Mr. Walter had. The chargemaster doesn't list costs of
the most frequently used medications, and Centura charged
"arbitrary and grossly inflated" ones, Mr. Walter alleged.
"For example, medications are often triple, quadruple, or more than
the full retail price, and include costs that exceed amounts a
third-party payer will pay for them," the lawsuit alleges.
The class action case seeks to include all patients from February
2017 until now who didn't receive an estimate of the amount owed
before or the day of the procedure and received surprise bills.
In the lawsuit, filed in the U.S. District Court for the District
of Colorado, Mr. Walter and his lawyers seek compensation for an
alleged breach of contract and seek a change in the health system's
billing practices. Mr. Walter also is asking for $5 million in
damages, an amount based on the number of people lawyers estimate
were affected by Centura's billing practice since February 2017.
Centura Health declined the Herald's request for comment. The
health system is expected to file a response to the class-action in
August. [GN]
CIOX HEALTH: Thompson Files Suit in South Carolina
--------------------------------------------------
A class action lawsuit has been filed against Ciox Health LLC. The
case is styled as Tammie Thompson and Debra Love, individually and
on behalf of all others similarly situtated, Plaintiff v. Ciox
Health LLC doing business as: IOD Incorporated individually and
Scanstat Technologies LLC, Defendants, Case No. 2:20-cv-02847-BHH
(D. S.C., Aug. 5, 2020).
The docket of the case states the nature of suit as Contract: Other
filed pursuant to the Diversity-Contract Dispute.
Ciox Health is a healthcare information management company with
headquarters in Alpharetta, Georgia. The company provides a variety
of services in release of information department, record retrieval
and health information management.[BN]
The Plaintiff is represented by:
James C Bradley, Esq.
Richardson Patrick Westbrook and Brickman
PO Box 879
Charleston, SC 29402
Tel: (843) 727-6500
Fax: (843) 216-9597
Email: jbradley@rpwb.com
- and -
Michael Joseph Brickman, Esq.
Richardson Patrick Westbrook and Brickman
PO Box 879
Charleston, SC 29402
Tel: (843) 727-6520
Fax: (843) 727-3103
Email: mbrickman@rpwb.com
- and -
Nina Fields Britt, Esq.
Richardson Patrick Westbrook and Brickman LLC
PO Box 1007
1037 Chuck Dawley Boulevard
Building A
Mt Pleasant, SC 29465
Tel: (843) 727-6500
Fax: (843) 881-6183
Email: nfields@rpwb.com
CLAYTON COUNTY, GA: Dismissal of Hojeij Tax Refund Suit Reversed
----------------------------------------------------------------
The Court of Appeals of Georgia, Fifth Division, issued an Opinion
reversing the District Court's order granting the Defendants'
motion to dismiss the case captioned HOJEIJ BRANDED FOODS, LLC v.
CLAYTON COUNTY, GEORGIA, et al., Case No. A20A0103 (Ga. App.).
Hojeij Branded Foods, LLC, filed suit against Clayton County, City
of College Park and other entities seeking a refund of ad valorem
property taxes paid on its usufruct interests at the
Hartsfield-Jackson Atlanta International Airport. The trial court
granted the Defendants' motion to dismiss on the grounds that the
Plaintiff's refund claims for the taxes paid in 2013 and 2014 are
barred by sovereign immunity because the complaint was filed more
than three years after it paid the taxes.
On appeal, the Plaintiff argues that the trial court erred by
applying the wrong version of the tax refund statute, the Official
Code of Georgia Annotated ("OCGA") Section 48-5-380, and by holding
that sovereign immunity barred its lawsuit.
The Appeals Court agrees, and reverses the trial court's dismissal
of the lawsuit.
The evidence shows that the Plaintiff leased retail space at the
Hartsfield-International Atlanta Airport in order to operate a fast
food concession stand pursuant to contracts with the City of
Atlanta, which owns the airport. As pertinent to this decision, the
Plaintiff filed ad valorem taxes on its property interest at the
airport in 2013 and 2015. In Clayton County Bd. of Tax Assessors v.
Aldeasa Atlanta Joint Venture, 304 Ga. 15, 16-17(1) (815 S.E.2d
870) (2018), and City of College Park v. Paradies-Atlanta, LLC, 346
Ga.App. 63, 65-66(2) (815 S.E.2d 246) (2018), the Supreme Court of
Georgia and this Court, respectively, held that such airport retail
spaces were not estates in real property, but instead were
usufructs that were not subject to ad valorem real estate taxes.
On March 13, 2019, the Plaintiff filed a suit pursuant to OCGA
Section 48-5-380 for a refund of the ad valorem taxes that it paid
in 2013 and 2014.
The Defendants filed motions to dismiss Plaintiff's complaint,
arguing that the applicable statute of limitations under OCGA
Section 48-5-380 is three years from the date of payment and that
sovereign immunity was only waived for that three-year period. The
Plaintiff opposed the motions, arguing that OCGA Section 48-5-380
is an express waiver of sovereign immunity and allows a taxpayer to
proceed directly to court in a suit for a property tax refund
within five years of payment of the tax.
The trial court granted the Defendants' motions to dismiss, finding
that sovereign immunity barred the action for a tax refund because
it was filed more than three years after the Plaintiff made its
payments for the 2013 and 2014 tax years.
On appeal, the Plaintiff argues that the trial court erred in
relying upon a former version of OCGA Section 48-5-380 and case law
interpreting that former version of the tax refund statute when
determining the duration of the waiver of sovereign immunity.
The Appeals Court agrees. The Appeals Court opines, among other
things, that because OCGA Section 48-5-380 allows for the filing of
a suit against a county or municipality for a tax refund within
five years of the date the disputed taxes were paid, the Georgia
Legislature has expressly waived the application of sovereign
immunity for that duration of time, citing Sawnee Elec. Membership
Corp. v. Ga. Dept. of Revenue, 279 Ga. 22, 23(2) (608 S.E.2d 611)
(2005). Here, the Plaintiff filed suit within five years of payment
and, thus, the trial court's grant of the Defendants' motion to
dismiss must be reversed.
A full-text copy of the Court or Appeals' May 28, 2020 Opinion is
available at https://tinyurl.com/y8emhgjx from Leagle.com.
COMED: Faces Class Action Seeking $150M Reimbursement for Customers
-------------------------------------------------------------------
Stacy St. Clair and Jason Meisner, writing for Chicago Tribune,
report that as ComEd made its first court appearance on July 28
since being hit with federal bribery charges involving House
Speaker Michael Madigan's political operation, the power company
also dealt with a new class-action lawsuit demanding that customers
be reimbursed at least $150 million for the benefits the utility
gleaned from the scheme.
In a brief phone hearing at the Dirksen U.S. Courthouse,
prosecutors and lawyers for ComEd agreed that after a formal
arraignment, the company would not have to return to court until
2023, when a three-year deferred prosecution agreement with the
government is set to expire.
ComEd has agreed to pay a record $200 million fine and cooperate
with the ongoing probe of its lobbying practices in Springfield in
exchange for the charges being dropped at the end of the agreement
period.
The fine cannot be raised through rate hikes, according to the
terms of the agreement. The deal, however, does not require ComEd
to reimburse customers for any additional money received because of
the scheme--an omission that the class-action lawsuit aims to
address.
"The corruption of ComEd has cost consumers and businesses in
Illinois far too much for far too long," said attorney Stephan
Blandin, who is representing the plaintiffs. "While it's important
that ComEd came clean about bribery and agreed pay the government,
there are 4 million families and businesses across the state that
now deserve to be compensated for their overpayment for electricity
for years and years."
The civil suit, filed in Cook County on July 27, comes less than
two weeks after ComEd stipulated to a "yearslong bribery scheme"
involving jobs, contracts and payments to Madigan's allies as it
sought favorable treatment from the legislature.
"Through rampant and widespread corruption in the form of bribery
of Illinois elected officials, ComEd and its parent company, Exelon
Corporation, deprived ratepayers of vast sums of money, totaling in
the hundreds of millions, if not billions, of dollars," the suit
states.
ComEd has publicly apologized for its actions, but the company
denies the scheme meant customers were unfairly charged. To the
contrary, a utility spokesman said on July 28, the company has
increased reliability by 70% since 2012 and customers' bills are
lower now than they were nearly a decade ago because of legislation
passed by the Illinois General Assembly.
"We apologize for the past conduct that did not live up to our
values and have made significant improvements to our compliance
practices to ensure that nothing like it ever happens again,"
spokesman Paul Elsberg said. "The improper conduct described in the
deferred prosecution agreement, however, does not mean that
consumers were harmed by the legislation that was passed in
Illinois."
While ComEd drew a sharp distinction between the criminal conduct
described in court documents and its impact on customers,
class-action attorney Blandin suggested the company's position
violated its pact with prosecutors to never disparage or contradict
the agreement.
"There's absolutely no question that Commonwealth Edison has a
systemic problem with telling the truth," he said. "When it's in
their benefit to cut a deal with the federal government, they will
cut a deal. When they're asked to be held accountable to the
ratepayers, then they will go back on that agreement."
Blandin also has called for the resignation of Illinois Commerce
Commission Chairwoman Carrie Zalewski, whose agency regulates
ComEd's rates and safety practices. The Tribune has identified
Zalewski's father-in-law, former 23rd Ward Ald. Michael Zalewski,
as one of the Madigan associates who prosecutors referenced
receiving a job for "little or no work."
Carrie Zalewski's office has said there is no conflict of interest
with her remaining on the state board, and Gov. J.B. Pritzker has
said she has his complete confidence. She was expected to preside
over an ethics reform hearing with ComEd executives on July 29.
Prosecutors have said ComEd's scheme began around 2011--when key
regulatory matters were before the Illinois House that Madigan
controls--and continued through last year. They agreed to defer
their prosecution of ComEd for three years as it cooperates with
the ongoing investigation. ComEd's parent company, Exelon, has said
lobbying practices have been cleaned up.
Neither the speaker nor any of his associates have been charged
with wrongdoing. A spokeswoman has said the speaker "has never made
a legislative decision with improper motives and has engaged in no
wrongdoing here."
In all, prosecutors put a value of at least $150 million on the
legislative benefits ComEd received. The federal court documents
specifically noted the 2011 passage of the Energy Infrastructure
and Modernization Act, which "helped improve ComEd's financial
stability" by establishing rate guidelines and a smart grid
overhaul.
The civil case was filed on behalf of three individuals and three
Chicago-area companies. The parties have been ComEd customers since
at least 2011, when the alleged scheme began, according to the
complaint.
The suit was filed as a class action, meaning it seeks to include a
large percentage of ComEd customers during the time period
established by prosecutors.
"Even though ComEd has already paid a $200 million fine, it's
important to keep in mind that not a penny of that is going to
ComEd ratepayers," said attorney Adam Levitt, who also represents
the plaintiffs. "The purpose of our lawsuit is to work toward
seeking full and complete justice for ComEd's ratepayers, to be
made whole for what we believe will be shown as improper inflation
of rates."
Also on July 27, a Downers Grove resident flied a federal
racketeering lawsuit--also seeking class-action status--alleging
ComEd, Madigan, and others participated in a conspiracy that
defrauded customers out of millions of dollars.
Plaintiff Lawrence Gress alleged in the 36-page suit that "Madigan
and his fellow racketeers have used their power as public officials
to line their own pockets by infiltrating and corrupting both
public and private enterprises subject to his power and selling
secret and unlawful indulgences to the highest bidder."
Madigan has denied wrongdoing.
"The speaker has never helped someone find a job with the
expectation that the person would not be asked to perform work by
their employer, nor did he ever expect to provide anything to a
prospective employer if it should choose to hire a person he
recommended," a spokeswoman said in a July 17 statement.
Just as in the class-action lawsuit filed on July 27, ComEd denies
its scheme hurt customers.
"In large part as a result of legislative action in Illinois, ComEd
has made some of the largest improvements in service at the best
value of any utility serving a U.S. major metro area," Elsberg
said. "This in no way excuses the conduct described in the DPA, but
that is a distinct issue from the effect of the legislation for
ComEd's customers."
Gress is also a plaintiff in a similar racketeering suit filed in
February against former state Sen. Martin Sandoval, who pleaded
guilty in a related federal probe to accepting bribes in exchange
for acting as political protection for a red light camera company.
[GN]
CONESTOGA SETTLEMENT: Court Trims Arbitration of Neukranz Claims
----------------------------------------------------------------
The U.S. District Court for the Northern District of Texas issued a
Memorandum Opinion and Order granting in part and denying in part
Defendant Provident Trust Group, LLC's Motion to Compel Arbitration
in the case captioned DEE NEUKRANZ, individually and as heir of the
ESTATE OF LLOYD NEUKRANZ, and on behalf of a class of similarly
situated persons v. CONESTOGA SETTLEMENT SERVICES, LLC; CONESTOGA
INTERNATIONAL, LLC; CONESTOGA TRUST SERVICES, LLC; L.L. BRADFORD
AND COMPANY, LLC; PROVIDENT TRUST GROUP, LLC; STRATEGIX SOLUTIONS,
LTD.; and MICHAEL McDERMOTT, Case No. 3:19-CV-1681-L (N.D. Tex.).
On January 22, 2020, the Findings, Conclusions and Recommendation
of the United States Magistrate Judge ("Report") was entered,
recommending that the Court grant in part and deny in part the
Motion to Compel. Specifically, the Magistrate Judge recommended
that the Motion to Compel be granted with respect to the claims
asserted by Plaintiff Dee Neukranz in her individual capacity and
denied with respect to her claims asserted in her representative
capacity on behalf of the Estate of Lloyd W. Neukranz ("the Estate"
or "Bill Neukranz").
No recommendation was made as to the putative class claims, as
Provident did not seek to compel arbitration of these claims
because no class has been certified to date. With respect to any
remaining claims, however, the Magistrate Judge recommended that
the Court order the parties to brief the applicability of the
Federal Arbitration Act's ("FAA") mandatory stay.
The Plaintiff and Provident both filed objections to the Report and
both responded to the other party's objections. The Plaintiff's
request for clarification focuses on the argument that the
arbitration agreement is not enforceable because it is illusory;
alternatively, the Plaintiff objects to the Report's handling of
this issue.
The Court overrules both parties' objections. The Court notes that
the Magistrate Judge's rejection of the Plaintiff's contention
regarding the unenforceability of the arbitration provision is
unequivocally clear. In support of this determination, the
Magistrate Judge also rejected the Plaintiff's retroactive
application argument based on the language in Section 8.14 in
finding that this section gives the account holder notice and
opportunity to reject any amendment within a certain time frame.
The Court opines that this finding is neither clearly erroneous nor
contrary to law, and the Plaintiff's disagreement with it does not
make it unclear.
With regard to Provident's objection, the Court states that
Provident's contention that the Estate does not have a valid claim
to the Traditional Individual Retirement Account ("IRA") or
Conestoga assets in Dee Neukranz's account or "has no assets at
issue here and thus no claim to assert" misses the mark and is
entirely irrelevant to the court's determination of whether a valid
arbitration agreement exists. It also inconsistent with and
undermines Provident's argument that the arbitration agreement
signed by Dee Neukranz, when she opened the IRA, binds the Estate.
In this case, the Estate stands in the shoes of decedent Bill
Neukranz, not the Estate's representative Dee Neukranz, District
Judge Sam A. Lindsay opines. Thus, in determining whether a valid
arbitration agreement exists, the issue is whether the Estate or
Bill Neukranz entered into a valid arbitration agreement with
Provident, not whether Dee Neukranz entered a valid arbitration
agreement with Provident, unless she did so on behalf of the
Estate.
Judge Lindsay states that Dee Neukranz's conduct in filing this
lawsuit on June 24, 2019, without more, does not satisfy
Provident's burden of establishing that she was acting on behalf of
the Estate (as the Estate's agent) when she executed a Traditional
Individual Retirement Account ("IRA") Application in her individual
capacity to open her own personal IRA with Provident on April 7,
2019. It merely suggests that Dee Neukranz had the standing to
bring suit on behalf of the Estate as the representative of the
Estate.
Provident also offered no evidence in support its Motion to Compel
to show that it entered any contract containing a valid arbitration
agreement with Bill Neukranz before his death, and the Court agrees
with the Magistrate Judge that neither the IRA Application signed
by Dee Neukranz in her individual capacity nor the Custodial
Agreement referenced in the IRA Application indicates an intent by
Dee Neukranz to bind the Estate or her legal authority to do so.
Accordingly, the Court overrules Provident's objections to the
Report.
Having considered the Motion to Compel, the parties' briefs,
evidence, record, and Report, and having conducted a de novo review
of that portion of the Report to which objections were made, the
Court determines that the findings and conclusions of the
Magistrate Judge, as supplemented by the Opinion, are correct. The
Court, therefore, accepts, as supplemented, the Magistrate Judge's
findings and conclusions; overrules the Plaintiff's and Provident's
objections; and grants in part and denies in part Provident's
Motion to Compel Arbitration as recommended by the Magistrate
Judge.
The Court rejects as moot the Magistrate Judge's remaining
recommendation that the parties submit briefing as to whether the
Plaintiff's remaining claims against Provident should be stayed
pending arbitration of Dee Neukranz's individual claims against
Provident, as it appears briefing on this issue has been completed.
Accordingly, all claims asserted by Dee Neukranz, in her individual
capacity, against Provident shall be arbitrated in accordance with
the arbitration provision contained in the Custodial Agreement.
After receiving the Magistrate Judge's recommendation as to whether
the claims at issue in the Motion to Compel or any putative class
claims should be stayed pending resolution of the arbitration, the
Court will enter a separate order addressing this issue.
A full-text copy of the District Court's May 28, 2020 Memorandum
Opinion and Order is available at https://tinyurl.com/ybcyg3sp from
Leagle.com.
CONGRESS COLLECTION: Randolph Asserts Breach of FDCPA
-----------------------------------------------------
A class action lawsuit has been filed against Congress Collection
LLC. The case is styled as Tomeka Randolph, individually and on
behalf of others similarly situated, Plaintiff v. Congress
Collection LLC and John Does 1-25, Defendants, Case No.
2:20-cv-12146-MAG-RSW (E.D. Mich., Aug. 11, 2020).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Congress Collection offers collection services for delinquent
accounts.[BN]
The Plaintiff is represented by:
Yaakov Saks, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Fax: (201) 282-6501
Email: ysaks@steinsakslegal.com
DHL EXPRESS: Jones Seeks Unpaid Overtime for Delivery Drivers
-------------------------------------------------------------
ROBIN JONES, individually and on behalf of all others similarly
situated, Plaintiff v. DHL EXPRESS (USA) INC. d.b.a. DHL Express,
and FLYWAY EXPRESS, LLC, Defendants, Case No. 2:20-cv-02595 (W.D.
Tenn., August 12, 2020) is a class action against the Defendants
for their failure to compensate the Plaintiff and all others
similarly situated delivery drivers or couriers overtime pay for
all hours worked beyond 40 hours in a workweek in violation of the
Fair Labor Standards Act. The Defendants also failed to make and
maintain accurate payroll records to determine their employees'
lawful wages, actual hours worked, and other conditions of
employment as required by federal and state law.
The Plaintiff worked for the Defendants as a delivery driver in
Tennessee from May 2019 to September 2019.
DHL Express (USA) Inc., d/b/a DHL Express is a logistics company
headquartered in Plantation, Florida. It maintains service centers
across Tennessee including in Memphis and Nashville.
Flyway Express, LLC is a contract logistics company, with its
principal office in Memphis, Tennessee. [BN]
The Plaintiff is represented by:
Mark N. Foster, Esq.
LAW OFFICE OF MARK N. FOSTER, PLLC
P.O. Box 869
Madisonville, KY 42431
Telephone: (270) 213-1303
E-mail: Mfoster@MarkNFoster.com
- and –
Sarah R. Schalman-Bergen, Esq.
Camille Fundora Rodriguez, Esq.
Krysten L. Connon, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: sschalman-bergen@bm.net
crodriguez@bm.net
kconnon@bm.net
E&M FOOD MARKET: Fails to Pay Minimum Wage, Aguilar et al. Claim
----------------------------------------------------------------
JOSE LUIS AGUILAR; and JUAN GIL ORTEGA, individually and on behalf
of all others similarly situated, Plaintiffs v. E&M FOOD MARKET
CORP. D/B/A FOOD UNIVERSE MARKETPLACE F/K/A KEY FOOD; MIGUEL
MARTINEZ; and EDELMA MARTINEZ, Defendants, Case No. 1:20-cv-05869
(S.D.N.Y., July 28, 2020) is an action against the Defendants for
failure to pay minimum wages, overtime compensation, authorize and
permit meal and rest periods, provide accurate wage statements, and
reimburse necessary business expenses.
The Plaintiff Aguilar was employed by the Defendants as staff. The
Plaintiff Ortega was employed as supervisor.
E&M Food Market Corp. owns and operates a supermarket located at
Bronx, New York, under the name Food Universe Marketplace. [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
EPOCA INT'L: Monegro Asserts Breach of ADA in New York
------------------------------------------------------
Epoca International, Inc. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Frankie Monegro, on behalf of himself and all others similarly
situated, Plaintiff v. Epoca International, Inc., Defendant, Case
No. 1:20-cv-06111 (S.D. N.Y., Aug. 5, 2020).
Epoca International is a designer and distributor of consumer
houseware products.[BN]
The Plaintiff is represented by:
David Paul Force, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: dforce@steinsakslegal.com
EQUITABLE HOLDINGS: Bid for Entry of Judgment in O'Donnell Granted
------------------------------------------------------------------
Equitable Holdings, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that the court overseeing the
case, Richard T. O'Donnell, on behalf of himself and all others
similarly situated v. AXA Equitable Life Insurance Company, has
granted the company's motion for entry of judgment.
In August 2015, a lawsuit was filed in Connecticut Superior Court,
Judicial Division of New Haven entitled Richard T. O'Donnell, on
behalf of himself and all others similarly situated v. AXA
Equitable Life Insurance Company.
This lawsuit is a putative class action on behalf of all persons
who purchased variable annuities from Equitable Financial, which
were subsequently subjected to the volatility management strategy
and who suffered injury as a result thereof.
Plaintiff asserts a claim for breach of contract alleging that
Equitable Financial implemented the volatility management strategy
in violation of applicable law.
Plaintiff seeks an award of damages individually and on a classwide
basis, and costs and disbursements, including attorneys' fees,
expert witness fees and other costs.
In November 2015, the Connecticut Federal District Court
transferred this action to the United States District Court for the
Southern District of New York. In March 2017, the Southern District
of New York granted Equitable Financial's motion to dismiss the
complaint.
In April 2017, the plaintiff filed a notice of appeal. In April
2018, the United States Court of Appeals for the Second Circuit
reversed the trial court's decision with instructions to remand the
case to Connecticut state court. In September 2018, the Second
Circuit issued its mandate, following Equitable Financial's
notification to the court that it would not file a petition for
writ of certiorari. The case was transferred in December 2018 to
the Connecticut Superior Court, Judicial District of Stamford.
In December 2018, Equitable Financial sought dismissal of the
complaint by filing a motion to strike, which the court granted in
August 2019.
Plaintiff filed an Amended Class Action Complaint in September
2019. Equitable Financial filed a motion for entry of judgment in
October 2019.
On August 3, 2020, the court granted Equitable Financial's motion
for entry of judgment.
Equitable Holdings said, "We are vigorously defending this
matter."
Equitable Holdings, Inc. operates as a diversified financial
services company worldwide. It operates through four segments:
Individual Retirement, Group Retirement, Investment Management and
Research, and Protection Solutions. The company was founded in 1859
and is based in New York, New York. AXA Equitable Holdings, Inc. is
a subsidiary of AXA S.A.
On January 14, 2020, the company announced its plans to rebrand as
"Equitable" and to discontinue the use of the "AXA" brand. In
connection with this rebranding, the company removed "AXA" from its
legal entity name, which is now Equitable Holdings, Inc.
FCA US: Razen Balks at Defective Vehicle Automatic Transmission
---------------------------------------------------------------
BRIAN RAZEN and, individually, and on behalf of a class of
similarly situated individuals, Plaintiff, v. FCA US LLC, a
Delaware limited liability company, Defendant, Case No.
2:20-cv-12188-GCS-APP (M.D. Fla., August 14, 2020) is an action
brought by the Plaintiff for himself and on behalf of all persons
in the United States and its territories who purchased or leased
any Model Year 2016 or later vehicle from the Defendant equipped
with 9-speed automatic transmission.
According to the complaint, the ZF 9HP Automatic Transmission was
supposed to serve as a significant technological advancement from
previously employed six-speed automatic transmission, due to its
unique 9.8 ratio spread and computer-controlled shifting, which
were designed together to allow for better performance and fuel
economy, while maintaining the ease of use of a traditional
automatic transmission.
However, prior to releasing the ZF 9HP Automatic Transmission in
its vehicles, Defendant confirmed that the transmission was plagued
with problems. In addition to its market delay, on September 24,
2013, it was reported that Defendant "was also forced to postpone"
media drive events to "further improve powertrain calibrations."
After multiple delays, attempted fixes and recalibrations,
Defendant nevertheless sold the Class Vehicles with the ZF 9H
Automatic Transmission. Unfortunately for consumers, Defendant
knowingly rushed a product to market that was defective and has
been unable to repair the Class Vehicles. Ultimately, Defendant
failed to deliver any vehicles with the ZF 9HP Automatic
Transmission that lived up to the promise of a transmission that
"shifts through the gears so smoothly that drivers don’t even
notice most of the gear changes."
Further, the Transmission Defect causes unsafe conditions,
including, but not limited to, delayed acceleration, abrupt forward
propulsion and sudden loss of power, which present a safety hazard
because they severely affect the driver's ability to control the
car's speed, acceleration, and deceleration. As examples, these
conditions may make it difficult to safely change lanes, make
turns, merge into traffic, accelerate from stop light/sign, and
accelerate onto highways/freeways.
As a result of their reliance on Defendant's omissions, owners
and/or lessees of the Class Vehicles suffered an ascertainable loss
of money, property, and/or value of their Class Vehicles.
Additionally, as a result of the Transmission Defect, Plaintiff and
Class Members were harmed and suffered actual damages in that the
Class Vehicles' transmission components are substantially certain
to fail before their expected useful life has run.
FCA US LLC is an Auburn Hills, Michigan-based company that designs,
manufactures, markets, distributes, services, repairs, sells, and
leases passenger vehicles across the U.S.[BN]
The Plaintiff is represented by:
Stephen J. Bagge, Esq.
STEPHEN J. BAGGE, P.A.
3902 Henderson Blvd. Suite 208-30
Tampa, FL 33629
Telephone: (813) 250-0511
E-mail: sbagge@baggelaw.com
- and -
Russell D. Paul, Esq.
Jeffrey L. Osterwise, Esq.
BERGER MONTAGUE PC
1818 Market Street Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4604
E-mail: rpaul@bm.net
josterwise@bm.net
FIRSTENERGY CORP: Paid Bribe to Pass Ohio Bailout Law, Smith Says
-----------------------------------------------------------------
JACOB SMITH 9503 Chesapeake Drive North Royalton, OH 44133
Plaintiff, v. FIRSTENERGY CORP. c/o Agent: CT Corporation System
4400 Easton Commons Way Suite 125 Columbus, OH 43219 AND
FIRSTENERGY SERVICE COMPANY c/o Agent: CT Corporation System 4400
Easton Commons Way Suite 125 Columbus, OH 43219 Defendants, Case
No. 2:20-cv-03755-EAS-KAJ (S.D. Ohio, July 27, 2020) alleges that
the Defendants conspired with Larry Householder, Jeffrey
Longstreth, Neil Clark, Matthew Borges, Juan Cespedes, and
Generation Now, and others in racketeering activities in violations
of 18 U.S.C. Section 1962(c), (d).
Specifically, the lawsuit alleges that from March 2017 to March
2020, the Householder Enterprise received approximately $60 million
from Defendants paid through Generation Now and controlled by
Householder and the Enterprise. In exchange for payments from
Defendants, the Householder Enterprise helped pass the House Bill 6
legislation, described by an Enterprise member as a billion-dollar
"bailout" that saved from closure two failing nuclear power plants
in Ohio affiliated with Defendants. The Enterprise then worked to
corruptly ensure that HB 6 went into effect by defeating a ballot
initiative. To achieve these ends, and to conceal the scheme, the
Householder Enterprise passed money received from Defendants
through multiple entities that it controlled. The Householder
Enterprise then used these bribe payments to further the goals of
the Enterprise, which include: (1) obtaining, preserving, and
expanding Householder's political power in the State of Ohio
through the receipt and use of secret payments; (2) enriching and
benefitting the enterprise, its members, and associates; and, (3)
promoting, concealing, and protecting purposes (1) and (2) from
public exposure and possible criminal prosecution.
Plaintiff has been damaged by Defendants by his payment of monthly
surcharges as set forth in HB 6 which provided massive
customer/ratepayer subsidies for Defendants' Davis-Besse and Perry
Nuclear Power Plants.
FirstEnergy Corp., is a public utility holding company which
directs and controls various subsidiary entities organized under
the laws of the State of Ohio with its principal place of business
located in Akron, Ohio.
FirstEnergy Service Company, is organized under the laws of the
State of Ohio with its principal place of business located in
Akron, Ohio and provides legal, financial, and other corporate
support services to affiliated companies.[BN]
The Plaintiff is represented by:
Dennis E. Murray, Jr., Esq.
Margaret M. Murray, Esq.
MURRAY & MURRAY CO., L.P.A.
111 East Shoreline Drive
Sandusky, OH 44870-2517
Telephone: (419) 624-3126
Facsimile: (419) 624-0707
E-mail: dmj@murrayandmurray.com
FIRSTENERGY: Potential Class Action Seeks Refund of Rate Hike
-------------------------------------------------------------
Cory Shaffer, writing for cleveland.com, reports that a FirstEnergy
customer filed what could become a class-action lawsuit in an
effort to make the electricity company refund customers for rate
hikes that resulted from a billion-dollar nuclear bailout now at
the center of a corruption scandal.
The lawsuit filed by Jacob Smith, a North Royalton homeowner,
accuses the Akron-based utility of committing civil racketeering by
bribing law Ohio House Speaker Larry Householder to introduce House
Bill 6 and then illegally bankrolling a dark-money campaign to
pressure legislators into supporting the bill and fending off a
ballot initiative to repeal it.
The goal of the scheme was to deprive ratepayers of money through
the law that required them to pay a monthly surcharge on power the
company delivered, the lawsuit says.
The 34-page complaint filed in U.S. District Court in Columbus also
asks a federal judge to grant class-action status, a move that
would allow hundreds of thousands of customers from across the
state to join as plaintiffs and seek refunds.
House Bill 6 required every Ohio customer to pay a new monthly
surcharge that ranged from 85 cents for residential customers to
$2,400 for operators of large industrial plants. It also stripped
requirements that traditional utility companies generate a certain
percentage of the power they provide from renewable energy, which
supporters said would result in a net savings for consumers.
Sandusky-based attorney Dennis Murray Jr., a former Democratic
state representative who represented what was then District 80 from
2009 to 2013, filed the suit on Smith's behalf. He said that
lawmakers' plans to repeal the bailout law and pass new legislation
in its place are not enough.
"[FirstEnergy] hijacked Ohio's democracy," Murray Jr. told
cleveland.com. "Repeal and replace is likely, but they're not
entitled to keep the change in the meantime. They have to give it
back."
FirstEnergy was referred to as Company A in the 81-page FBI
affidavit that charged Householder, an aide and three lobbyists,
two of whom had been hired by FirstEnergy to work on the nuclear
bailout legislation. No FirstEnergy executives or employees have
been accused of any wrongdoing, and company CEO Charles Jones said
that he believed the company acted ethically.
A FirstEnergy spokeswoman said that she could not comment on the
lawsuit, but noted that FirstEnergy Corp., which is named as a
defendant in the suit, receives no money from the bailout
legislation. The nuclear plants are owned by Energy Harbor, the
company that emerged from bankruptcy court proceedings earlier this
year after the former FirstEnergy Corp. subsidiary FirstEnergy
Solutions filed for Chapter 11 bankruptcy.
The lawsuit seeks damages equal to the amount of money
FirstEnergy's ratepayers have already paid, plus interest, as well
as treble damages equal to three times that amount. It also asks a
judge to order the company to pay Smith's attorney's fees.
Rate disputes generally fall under the jurisdiction of the Ohio
Public Utilities Commission, but Murray said he believes ratepayers
can bring the action in federal court on the grounds that the
scheme laid out in the FBI affidavit amounted to a violation of the
ratepayers' rights that is enforceable in federal court.
Federal investigators say FirstEnergy, identified only as "Company
A" in court records unsealed, agreed to back Householder's 2016
election campaign to the state legislature and resume the house
speaker role,l in exchange for the passage of a bill to make the
company's nuclear power plants outside Cleveland and Toledo
solvent.
Investigators say lobbyists working for FirstEnergy helped the
company passed more than $60 million through a 501(c)(4) nonprofit
organization called Generation Now to secretly support the
campaigns of Householder and those who would vote for him to become
speaker in 2018, as well as the efforts to pass the bill and defeat
a contentious referendum.
The announcement of the arrests on July 28 caused a sharp drop in
FirstEnergy stock that legal experts told cleveland.com is likely
to lead to lawsuits filed against FirstEnergy on behalf of some of
its shareholders. [GN]
FIRSTSOURCE ADVANTAGE: Wallk Asserts Breach of FDCPA in New York
----------------------------------------------------------------
A class action lawsuit has been filed against Firstsource
Advantage, LLC. The case is styled as Chayim Wallk, individually
and on behalf of all others similarly situated, Plaintiff v.
Firstsource Advantage, LLC, Defendant, Case No. 1:20-cv-01067 (W.D.
N.Y., Aug. 11, 2020).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Firstsource Advantage, LLC is a financial institution in Getzville,
New York.[BN]
The Plaintiff is represented by:
David Michael Barshay, Esq.
Barshay Sanders PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516) 203-7600
Fax: (516) 706-5055
Email: dbarshay@barshaysanders.com
- and -
Craig B. Sanders, Esq.
Barshay Sanders PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516) 203-7634
Fax: (516) 281-7601
Email: csanders@barshaysanders.com
FLYWAY EXPRESS: Benton Seeks Unpaid Overtime for Van Drivers
------------------------------------------------------------
MICHAEL BENTON, individually and on behalf of all others similarly
situated, Plaintiff v. FLYWAY EXPRESS, LLC, Defendant, Case No.
5:20-cv-01028-EEF-MLH (W.D. La., August 11, 2020) is a collective
action complaint brought against Defendant for its alleged willful
violation of the Fair Labor Standards Act.
Plaintiff was employed by Defendant as a Van Driver since September
2019.
According to the complaint, Plaintiff and other similarly situated
Van Drivers regularly work more than 40 hours in a workweek, but
Defendant failed to pay them overtime at rates not less than one
and one-half times their regular rates.
Flyway Express, LLC provides delivery services to customers of DHL
and other companies. [BN]
The Plaintiff is represented by:
Philip Bohrer, Esq.
Scott E.Brady, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Tel: (225) 925-5297
Fax: (225) 231-7000
Emails: phil@bohrerbrady.com
scott@bohrerbrady.com
FM12 LIQUORS: Gomez Sues Over Failure to Pay Overtime
-----------------------------------------------------
MOISES MARIA GOMEZ, on behalf of himself and all others similarly
situated, Plaintiff v. FM12 LIQUORS, INC. and FRANKLIN ANTONIO
MARIA, Defendants, Case No. 1:20-cv-23340-XXXX (S.D. Fla., August
11, 2020) brings this complaint against Defendants for their
alleged violation of the Fair Labor Standards Act.
Plaintiff was employed by Defendants as a non-exempt employee from
on or about May 3, 2016 through on or about May 19, 2020.
Plaintiff claims that he worked on average of 70 to 75 hours per
week for Defendants. Although Defendants compensated him $16.25 per
hour for the first 40 hours worked per week, but any hours worked
in excess of 40 were paid in cash at $11.50 per hour. As a result,
Defendant failed to pay Plaintiff overtime at the rate of one- and
one-half times his regular rate of pay.
Franklin Antonio Maria was a managing agent of FM12 and acts
directly in the interests of FM12.
FM12 Liquors, Inc. operates as a liquor store in Miami, Florida.
[BN]
The Plaintiff is represented by:
James M. Loren, Esq.
GOLDBERG & LOREN, PA
1776 N. Pine Island Road, Suite 224
Plantation, FL 33322
Tel: 800-719-1617
Fax: 954-585-4886
Email: jloren@goldbergloren.com
FORESCOUT TECHNOLOGIES: Facing Smith Class Suit in New York
-----------------------------------------------------------
Forescout Technologies, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 5, 2020, for
the quarterly period ended June 30, 2020, that the company has been
named as a defendant in a purported class action suit initiated by
Edward Smith.
On February 6, 2020, the Company entered into an Agreement and Plan
of Merger (the "Original Merger Agreement") with Ferrari Group
Holdings, L.P., a Delaware limited partnership ("Parent"), and
Ferrari Merger Sub, Inc., a Delaware corporation and an indirect
wholly owned subsidiary of Parent ("Merger Sub"). Parent and Merger
Sub are affiliates of Advent International Corporation ("Advent").
On July 31, 2020, a purported class action complaint was filed in
the United States District Court, Southern District of New York, by
Edward Smith, individually, and on behalf of all others similarly
situated, against the Company and its Board for alleged violations
of Section 14(d), Section 14(e) and Section 20(a) of the Exchange
Act related to the Schedule 14D-9. Parent and Merger Sub are also
named as defendants.
The complaint seeks to (1) enjoin the consummation of the Offer;
(2) cause defendants to disseminate revised disclosures; and (3)
rescind the transactions contemplated by the Amended and Restated
Merger Agreement or recover damages in the event that such
transactions were completed.
Forescout Technologies, Inc. provides device visibility and control
solutions in the Americas, Europe, the Middle East, Africa, the
Asia Pacific, and Japan. The company offers its products to various
industries, such as government, financial services, healthcare,
technology, manufacturing, energy, services, retail, entertainment,
and education through distributors and resellers. Forescout
Technologies, Inc. was founded in 2000 and is headquartered in San
Jose, California.
FRANCESCA'S HOLDING: Court Refuses Amendments to Magee FLSA Suit
----------------------------------------------------------------
The U.S. District Court for the District of New Jersey, Camden
Vicinage, issued a Memorandum Opinion and Order denying the Motion
to Amend/Correct Plaintiffs' Second Amended Complaint in the case
captioned MAGEE, et al. v. FRANCESCA'S HOLDING CORP., et al., Case
No. 17-565 (RBK/JS) (D.N.J.).
The Motion was filed by Plaintiffs Danielle Prulello, Samantha
Bailey, Robert Bloominger, Jr., Katherine Perry, and Kathleen
Besaw. The Court received the opposition filed by Defendants
Francesca's Holding Corp. and Francesca's Collections, Inc. and the
Plaintiffs' reply. The Court exercises its discretion to decide the
Plaintiffs' Motion without oral argument. For reasons set forth in
the Memorandum Opinion and Order, the Plaintiffs' Motion is
DENIED.
The Plaintiffs commenced this Class Action lawsuit against
Francesca's on January 27, 2017, asserting claims for unpaid
overtime wages. The Plaintiffs bring this action pursuant to the
Fair Labor Standards Act of 1938 and several state wage and hour
laws, including the New Jersey State Wage and Hour Law, the
Illinois Minimum Wage Law, the Pennsylvania Minimum Wage Act, the
Ohio Minimum Wage Act and the New York Labor Law. The Plaintiffs
brought this action because they allege they worked in excess of 40
hours per work week without being paid overtime wages in violation
of the FLSA and the state wage laws.
On August 6, 2019, the Plaintiffs filed their Second Amended
Complaint. In their Second Amended Complaint, the class period was
defined by the then-existing two-year statute of limitations. The
same day the Plaintiffs filed their second amended complaint, the
New Jersey State Wage and Hour Law was amended to extend the
statute of limitations for wage and hour claims from two years to
six years.
The Plaintiffs seek to amend paragraph 85 of their Second Amended
Complaint to state the six-year statute of limitations for wage
claims under New Jersey law. The Defendants oppose the motion on
futility grounds and argue New Jersey courts generally apply new
laws prospectively and not retroactively, therefore, the Plaintiffs
should not be allowed to amend their complaint to include the
six-year statute of limitations. The Defendants also argue the new
amendment should not be applied retroactively because the New
Jersey legislature did not express an intent that the law apply
retroactively, the amendment is not curative, and the parties'
expectations do not warrant retroactive application. The
Plaintiffs, however, argue New Jersey courts generally apply
statutory amendments to remedies, such as statute of limitations,
retroactively to pending claims.
The Court finds the Plaintiffs' proposed amendment is futile and,
therefore, leave to amend is denied. The Court finds New Jersey law
does not support the retroactive application of the amendment to
the statute of limitations of the New Jersey Wage and Hour Law.
Accordingly, the Motion is denied.
A full-text copy of the District Court's May 28, 2020 Memorandum
Opinion and Order is available at https://tinyurl.com/yd7remyc from
Leagle.com.
FRIENDS FIRST: Faces Mansfield Wage-and-Hour Suit in Arkansas
-------------------------------------------------------------
TIFFANY MANSFIELD, individually and on behalf of all others
similarly situated, Plaintiff v. FRIENDS FIRST, LLC, Defendant,
Case No. 4:20-cv-00928-JM (E.D. Ark., August 12, 2020) is a class
action against the Defendant for violations of the Fair Labor
Standards Act and the Arkansas Minimum Wage Act by failing to pay
the Plaintiff and all others similarly situated delivery drivers
the legal minimum hourly wage and overtime compensation for all
hours worked in excess of 40 per workweek and failing to track,
keep records, and reimburse them for their actual job-related
expenses.
The Plaintiff has been employed by the Defendant as a delivery
driver at its restaurant located at 1813 North 1st Street, Suite A,
in Jacksonville, Arkansas since March 2020.
Friends First, LLC is an operator of several Domino's pizza
restaurant franchise locations in Arkansas. [BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
April Rheaume, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford Road, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
april@sanfordlawfirm.com
G.F. MANAGEMENT: Marrero Sues Over Background Checks
----------------------------------------------------
NATALIA MARRERO, on behalf of herself and on behalf of all others
similarly situated, Plaintiff, v. G.F. MANAGEMENT, LLC A Foreign
Limited Liability Company Defendant, Case No. 6:20-cv-01463 (M.D.
Fla., August 13, 2020) alleges that Defendant routinely obtains and
uses information in consumer reports, commonly known as "background
checks," to determine whether applicants and employees are eligible
for employment -- in violation of the Fair Credit Reporting Act of
1970 ("FCRA").
The use of consumer reports is governed by the FCRA. Section 15
U.S.C. Section 1681b makes it presumptively unlawful to obtain and
use a consumer report for an employment purpose. Such use becomes
lawful if and only if the "user" – in this case Defendant –
complies with the FCRA's strict notice requirements.
According to the complaint, Defendant willfully violated these
requirements in multiple ways, in systematic violation of
Plaintiff's rights and the rights of other putative class members.
Specifically, Defendant violated 15 U.S.C. Section 1681b(b)(3),
which requires an employer intending to use a consumer report as
the basis for adverse employment action (e.g., rejecting an
applicant for employment or terminating an existing employee) first
provide the applicant or employee notice, a copy of their report,
and a summary of FCRA rights.
Plaintiff was employed at the Hilton Garden Inn in Lake Mary,
Florida, as a chef for nearly nine years. In June, 2020, Plaintiff
was unexpectedly terminated. Plaintiff was surprised, and pressed
her manager for a reason. Plaintiff was informed she was terminated
because she had failed a background check.
G.F. Management, LLC is a national full service hospitality
ownership and management company employing thousands of employees
at resorts and hotels throughout the United States.[BN]
The Plaintiff is represented by:
Marc R. Edelman, Esq.
MORGAN & MORGAN, P.A.
201 N. Franklin Street, Suite 700
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 257-0572
E-mail: MEdelman@forthepeople.com
GENESIS HEALTHCARE: Espinosa Suit Seeks to Certify 5 Subclasses
---------------------------------------------------------------
In class action lawsuit captioned as CHRISTINE ESPINOSA,
individually, and on behalf of other members of the general public
similarly situated and other aggrieved employees, v. GENESIS
HEALTHCARE, INC., a Delaware corporation, et al., Case No.
2:20-cv-00688-JFW-JEM (C.D. Cal.), the Plaintiff will move the
Court on October 19, 2020 for an order:
1. certifying the following classes pursuant to Federal Rules
of Civil Procedure 23(b)(3):
a. Unpaid Wage Subclass:
"all current and former non-exempt employees who worked
for Defendants in California at any time between October
28, 2015 and the present who were not paid for all hours
worked at the appropriate hourly rate";
b. Meal Break Subclass:
"all current and former non-exempt employees who worked
for Defendant in California at any time between October
28, 2015 and the present who worked one or more shifts
longer than 5 hours and did not receive an uninterrupted
meal break of at least 30 minutes for every 5 hours of
work and did not receive a corresponding meal break
premium wage";
c. Rest Break Subclass:
"all current and former non-exempt employees who worked
for Defendant in California at any time between October
28, 2015 and the present who worked one or more shifts
of 3.5 hours or longer and did not receive an
uninterrupted rest break of at least 10 minutes for
every 4 hours worked or major fraction thereof and did
not receive a corresponding rest break premium wage";
d. Late Pay Subclass:
"all non-exempt employees who worked for Defendant in
California whose employment was separated between
October 28, 2016 and the present and were not paid for
all wages earned upon the separation of their
employment";
e. Wage Statement Subclass:
"all nonexempt employees who worked for Defendants in
California from October 28, 2018 to the present and
received wage statements that did not accurately state
the number of hours of work or the applicable hourly
rates";
2. appointing herself as the Class Representative; and
3. appointing Aequitas Legal Group as Class Counsel.
Genesis is a provider of short-term post-acute, rehabilitation,
skilled nursing and long-term care services. As of January 2017,
Genesis operates approximately 500 skilled nursing centers and
assisted/senior living residences in 34 states across the United
States.[CC]
The Plaintiff is represented by:
Ronald H. Bae, Esq.
Olivia D. Scharrer, Esq.
AEQUITAS LEGAL GROUP
A Professional Law Corporation
1156 E. Green Street, Suite 200
Pasadena, CA 91106
Telephone: (213) 674-6080
Facsimile: (213) 674-6081
E-mail: rbae@aequitaslegalgroup.com
oscharrer@aequitaslegalgroup.com
GENWORTH FINANCIAL: Brighton & Daubenmier Suits Consolidated
------------------------------------------------------------
Genworth Financial, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that the United States
District Court for the Eastern District of Virginia has issued an
order consolidating the Brighton Trustees and Daubenmier cases.
On April 6, 2020, Genworth Life and Annuity Insurance Company
(GLAIC), a company's indirect wholly-owned subsidiary, was named as
a defendant in a putative class action lawsuit filed in the United
States District Court for the Eastern District of Virginia,
captioned Brighton Trustees, LLC, on behalf of and as trustee for
Diamond LS Trust; and Bank of Utah, solely as securities
intermediary for Diamond LS Trust; on behalf of themselves and all
others similarly situated v. Genworth Life and Annuity Insurance
Company.
On May 13, 2020, GLAIC was also named as a defendant in a putative
class action lawsuit filed in the United States District Court for
the Eastern District of Virginia, captioned Ronald L. Daubenmier,
individually and on behalf of himself and all others similarly
situated v. Genworth Life and Annuity Insurance Company.
On June 26, 2020, Plaintiffs filed a consent motion to consolidate
the two cases.
On June 30, 2020, the United States District Court for the Eastern
District of Virginia issued an order consolidating the Brighton
Trustees and Daubenmier cases.
On July 17, 2020, the Brighton Trustees and Daubenmier Plaintiffs
filed a consolidated complaint, alleging that GLAIC subjected
policyholders to an unlawful and excessive cost of insurance
increase.
The consolidated complaint asserts claims for breach of contract
and injunctive relief, and seeks damages in excess of $5 million.
Genworth said, "Our responsive pleading deadline is August 31,
2020. We intend to vigorously defend this action."
Genworth Financial, Inc. provides insurance and homeownership
solutions in the United States and internationally. It operates
through five segments: U.S. Mortgage Insurance, Canada Mortgage
Insurance, Australia Mortgage Insurance, U.S. Life Insurance, and
Runoff. Genworth Financial, Inc. was founded in 1871 and is
headquartered in Richmond, Virginia.
GENWORTH FINANCIAL: Continues to Defend Burkhart Class Action
-------------------------------------------------------------
Genworth Financial, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that the company continues to
defend a class action suit entitled, Richard F. Burkhart, William
E. Kelly, Richard S. Lavery, Thomas R. Pratt, Gerald Green,
individually and on behalf of all other persons similarly situated
v. Genworth et al.
In September 2018, Genworth Financial, Genworth Holdings, Genworth
North America Corporation, GFIH and Genworth Life Insurance Company
("GLIC") were named as defendants in a putative class action
lawsuit pending in the Court of Chancery of the State of Delaware
captioned Richard F. Burkhart, William E. Kelly, Richard S. Lavery,
Thomas R. Pratt, Gerald Green, individually and on behalf of all
other persons similarly situated v. Genworth et al.
Plaintiffs allege that GLIC paid dividends to its parent and
engaged in certain reinsurance transactions causing it to maintain
inadequate capital capable of meeting its obligations to GLIC
policyholders and agents.
The complaint alleges causes of action for intentional fraudulent
transfer and constructive fraudulent transfer, and seeks injunctive
relief.
The company moved to dismiss this action in December 2018. On
January 29, 2019, plaintiffs exercised their right to amend their
complaint. On March 12, 2019, the company moved to dismiss
plaintiffs' amended complaint. On April 26, 2019, plaintiffs filed
a memorandum in opposition to the company's motion to dismiss,
which the company replied to on June 14, 2019.
On August 7, 2019, plaintiffs filed a motion seeking to prevent
proceeds that GFIH expected to receive from the then planned sale
of its shares in Genworth Canada from being transferred out of
GFIH. On September 11, 2019, plaintiffs filed a renewed motion
seeking the same relief from their August 7, 2019 motion with an
exception that allowed GFIH to transfer $450 million of expected
proceeds from the sale of Genworth Canada through a dividend to
Genworth Holdings to allow the pay off of a senior secured term
loan facility dated March 7, 2018 among Genworth Holdings as the
borrower, GFIH as the limited guarantor and the lending parties
thereto.
Oral arguments on the company's motion to dismiss and plaintiffs'
motion occurred on October 21, 2019, and plaintiffs' motion was
denied. On January 31, 2020, the Court granted in part the
company's motion to dismiss, dismissing claims relating to $395
million in dividends GLIC paid to its parent from 2012 to 2014 (out
of the $410 million in total dividends subject to plaintiffs'
claims).
The Court denied the balance of the motion to dismiss leaving a
claim relating to $15 million in dividends and unquantified claims
relating to the 2016 termination of a reinsurance transaction. On
March 27, 2020, the company's filed its answer to plaintiffs'
amended complaint.
Genworth said, "We intend to continue to vigorously defend this
action."
Genworth Financial, Inc. provides insurance and homeownership
solutions in the United States and internationally. It operates
through five segments: U.S. Mortgage Insurance, Canada Mortgage
Insurance, Australia Mortgage Insurance, U.S. Life Insurance, and
Runoff. Genworth Financial, Inc. was founded in 1871 and is
headquartered in Richmond, Virginia.
GENWORTH FINANCIAL: Final Hearing on Skochin Settlement Next Month
------------------------------------------------------------------
Genworth Financial, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that the court overseeing the
case, Jerome Skochin, Susan Skochin, and Larry Huber, individually
and on behalf of all other persons similarly situated v. Genworth
Financial, Inc. and Genworth Life Insurance Company, conducted
final settlement approval hearings on July 10 and July 14, 2020 and
has continued the final approval hearing to September 11, 2020.
In January 2019, Genworth Financial and Genworth Life Insurance
Company (GLIC) were named as defendants in a putative class action
lawsuit pending in the United States District Court for the Eastern
District of Virginia captioned Jerome Skochin, Susan Skochin, and
Larry Huber, individually and on behalf of all other persons
similarly situated v. Genworth Financial, Inc. and Genworth Life
Insurance Company.
Plaintiffs seek to represent long-term care insurance
policyholders, alleging that Genworth made misleading and
inadequate disclosures regarding premium increases for long-term
care insurance policies.
The complaint asserts claims for breach of contract, fraud,
fraudulent inducement and violation of Pennsylvania's Unfair Trade
Practices and Consumer Protection Law (on behalf of the two named
plaintiffs who are Pennsylvania residents), and seeks damages
(including statutory treble damages under Pennsylvania law) in
excess of $5 million.
On March 12, 2019, the company moved to dismiss plaintiffs'
complaint. On March 26, 2019, plaintiffs filed a memorandum in
opposition to the company's motion to dismiss, which the company
replied to on April 1, 2019.
In July 2019, the Court heard oral arguments on the company's
motion to dismiss. On August 29, 2019, the Court issued an order
granting the company's motion to dismiss the claim with regard to
breach of contract, but denied the company's motion with regard to
fraudulent omission, fraudulent inducement and violation of the
Pennsylvania Unfair Trade Practices and Consumer Protection law.
On September 20, 2019, plaintiffs filed an amended complaint,
dropping Genworth Financial as a defendant and reducing their
causes of action from four counts to two: fraudulent inducement by
omission and violation of Pennsylvania’s Unfair Trade Practices
and Consumer Protection Law (on behalf of the two named plaintiffs
who are Pennsylvania residents).
The parties engaged in a mediation process and, on October 22,
2019, reached an agreement in principle to settle this matter on a
nationwide basis. On November 22, 2019, plaintiffs filed an amended
complaint, adding Genworth Life Insurance Company of New York as a
defendant and expanding the class to all fifty states and the
District of Columbia.
On January 15, 2020, the Court preliminarily approved the
settlement and set the final approval hearing for July 10, 2020. On
March 26, 2020, the parties filed a Joint Motion for Leave to Amend
certain aspects of the settlement, which was approved by the Court
on March 31, 2020.
On April 10, 2020, the Indiana Department of Insurance filed a
Motion to Intervene and Motion to Stay, seeking to stay the current
schedule for class settlement and delay the date of the final
approval hearing in light of disruptions caused by COVID-19. On
April 14, 2020, the class administrator sent out class notices to
potential settlement class members.
On April 17, 2020, plaintiffs filed their opposition to the Indiana
Department of Insurance's motion to stay. The Court conducted final
approval hearings on July 10, 2020 and July 14, 2020 and has
continued the final approval hearing to September 11, 2020.
Genworth said, "Based on the Court's preliminary approval of the
settlement, we do not anticipate the outcome of this matter to have
a material adverse impact on our results of operations or financial
position. If the court does not approve the final settlement, we
intend to continue to vigorously defend this action."
Genworth Financial, Inc. provides insurance and homeownership
solutions in the United States and internationally. It operates
through five segments: U.S. Mortgage Insurance, Canada Mortgage
Insurance, Australia Mortgage Insurance, U.S. Life Insurance, and
Runoff. Genworth Financial, Inc. was founded in 1871 and is
headquartered in Richmond, Virginia.
GENWORTH FINANCIAL: TVPX ARX Inc. Suit Underway in Virginia
-----------------------------------------------------------
Genworth Financial, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that Genworth Life and
Annuity Insurance Company ("GLAIC") continues to defend itself in a
putative class action suit entitled, TVPX ARX INC., as Securities
Intermediary for Consolidated Wealth Management, LTD. on behalf of
itself and all others similarly situated v. Genworth Life and
Annuity Insurance Company.
In September 2018, Genworth Life and Annuity Insurance Company
("GLAIC"), the company's indirect wholly-owned subsidiary, was
named as a defendant in a putative class action lawsuit pending in
the United States District Court for the Eastern District of
Virginia captioned TVPX ARX INC., as Securities Intermediary for
Consolidated Wealth Management, LTD. on behalf of itself and all
others similarly situated v. Genworth Life and Annuity Insurance
Company. Plaintiff alleges unlawful and excessive cost of insurance
charges were imposed on policyholders.
The complaint asserts claims for breach of contract, alleging that
Genworth improperly considered non-mortality factors when
calculating cost of insurance rates and failed to decrease cost of
insurance charges in light of improved expectations of future
mortality, and seeks unspecified compensatory damages, costs, and
equitable relief.
On October 29, 2018, the company filed a motion to enjoin the case
in the Middle District of Georgia, and a motion to dismiss and
motion to stay in the Eastern District of Virginia. The company
moved to enjoin the prosecution of the Eastern District of Virginia
action on the basis that it involves claims released in a prior
nationwide class action settlement (the "McBride settlement") that
was approved by the Middle District of Georgia. Plaintiff filed an
amended complaint on November 13, 2018.
On December 6, 2018, the company moved the Middle District of
Georgia for leave to file its counterclaim, which alleges that
plaintiff breached the covenant not to sue contained in the prior
settlement agreement by filing its current action. On March 15,
2019, the Middle District of Georgia granted the company's motion
to enjoin and denied the company's motion for leave to file its
counterclaim. As such, plaintiff is enjoined from pursuing its
class action in the Eastern District of Virginia.
On March 29, 2019, plaintiff filed a notice of appeal in the Middle
District of Georgia, notifying the Court of its appeal to the
United States Court of Appeals for the Eleventh Circuit from the
order granting the company's motion to enjoin.
On March 29, 2019, the company filed its notice of cross-appeal in
the Middle District of Georgia, notifying the Court of its
cross-appeal to the Eleventh Circuit from the portion of the order
denying its motion for leave to file its counterclaim.
On April 8, 2019, the Eastern District of Virginia dismissed the
case without prejudice, with leave for plaintiff to refile an
amended complaint only if a final appellate Court decision vacates
the injunction and reverses the Middle District of Georgia's
opinion. On May 21, 2019, plaintiff filed its appeal and memorandum
in support in the Eleventh Circuit.
The company filed its response to plaintiff's appeal memorandum on
July 3, 2019. The Eleventh Circuit Court of Appeals heard oral
argument on plaintiff's appeal and the company's cross-appeal on
April 21, 2020.
On May 26, 2020, the Eleventh Circuit Court of Appeals vacated the
Middle District of Georgia's order enjoining Plaintiff's class
action and remanded the case back to the Middle District of Georgia
for further factual development as to whether Genworth has altered
how it calculates or charges cost of insurance since the McBride
settlement. The Eleventh Circuit Court of Appeals did not reach a
decision on Genworth's counterclaim.
Genworth said, "We intend to continue to vigorously defend the
dismissal of this action."
Genworth Financial, Inc. provides insurance and homeownership
solutions in the United States and internationally. It operates
through five segments: U.S. Mortgage Insurance, Canada Mortgage
Insurance, Australia Mortgage Insurance, U.S. Life Insurance, and
Runoff. Genworth Financial, Inc. was founded in 1871 and is
headquartered in Richmond, Virginia.
GREEN POGO: Adam Suit Transferred to New Jersey
-----------------------------------------------
The case captioned as Cindy Adam, individually and on behalf of all
others similarly situated, Plaintiff v. Frank V. Barone, Kirill
Chumenko, Green Pogo LLC (Delaware), Green Pogo LLC (New Jersey),
Natural Beauty Line LLC, Vegan Beauty LLC, Improved Nutraceuticals
LLC, Fortera Nutra Solutions LLC, Advanced Beauty LLC, SFLG Inc.,
Kurt Ellis, Defendant, was transferred from California Northern
with the assigned Case No. 3:20-cv-00761 to the U.S. District Court
for the District of New Jersey on August 11, 2020, and assigned
Case No. 3:20-cv-10321.
The docket of the case states the nature of suit as Other Fraud
filed pursuant to the Racketeering (RICO) Act.
Natural Beauty Line LLC offers natural and organic skin care and
makeup for Women and Men.[BN]
The Plaintiff is represented by:
Kevin Michael Kneupper, Esq.
321 N. Orange St. Apt. 306
Glendale, CA 91203
Tel: (512) 420-8407
The Defendants are represented by:
Charles G. Miller, Esq.
Bartko Zankel Bunzel & Miller
One Embarcadero Center, 8th Floor
San Francisco, CA 94111
Tel: (415) 956-1900
Fax: (415) 956-1152
- and -
Seth M Rosenstein, Esq.
Ansell Grimm and Aaron, P.C.
365 Rifle Camp Road
Woodland Park, NJ 07424
Tel: (973) 247-9000
- and -
JOSHUA S. BAUCHNER, Esq.
ANSELL GRIMM & AARON
365 Rifle Camp Road
Woodland Park, NJ 07424
Tel: (973) 413-8047
Fax: (973) 247-9199
Email: jb@ansellgrimm.com
HERBALIFE NUTRITION: Still Defends Rodgers Class Action
-------------------------------------------------------
Herbalife Nutrition Ltd. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 6, 2020, for the
quarterly period ended June 30, 2020, that the company continues to
defend a class action suit entitled, Rodgers, et al. v Herbalife
Ltd., et al.
On September 18, 2017, the Company and certain of its subsidiaries
and Members were named as defendants in a purported class action
lawsuit, titled Rodgers, et al. v Herbalife Ltd., et al. and filed
in the U.S. District Court for the Southern District of Florida,
which alleges violations of Florida's Deceptive and Unfair Trade
Practices statute and federal Racketeer Influenced and Corrupt
Organizations statutes, unjust enrichment, and negligent
misrepresentation.
On August 23, 2018, the Court issued an order transferring the
action to the U.S. District Court for the Central District of
California as to four of the putative class plaintiffs and ordering
the remaining four plaintiffs to arbitration, thereby terminating
the Company defendants from the Florida action.
The plaintiffs seek damages in an unspecified amount.
The Company believes the lawsuit is without merit and will
vigorously defend itself against the claims in the lawsuit.
The Company is currently unable to reasonably estimate the amount
of the loss that may result from an unfavorable outcome.
No further updates were provided in the Company's SEC report.
Herbalife Nutrition Ltd. develops and sells nutrition solutions in
North America, Mexico, South and Central America, Europe, the
Middle East, Africa, and the Asia Pacific. The company was formerly
known as Herbalife Ltd. and changed its name to Herbalife Nutrition
Ltd. in April 2018. Herbalife Nutrition Ltd. was founded in 1980
and is headquartered in Los Angeles, California.
HOFSTRA UNIVERSITY: Migliore Seeks Tuition Fee Refund
-----------------------------------------------------
MATTHEW MIGLIORE, on behalf of himself and other individuals
similarly situated, Plaintiffs, against HOFSTRA UNIVERSITY –
MAURICE A. DEANE SCHOOL OF LAW; and other affiliated entities and
individuals, Defendants, Case No. 2:20-cv-03671 (E.D.N.Y., August
13, 2020) is a class action brought by the Plaintiff, on behalf of
himself and other individuals similarly situated, who paid tuition
and fees for the Spring 2020 semester at Hofstra University -
Maurice A. Deane School of Law.
As a result of Defendants' response to the Novel Coronavirus
Disease 2019 ("COVID-19"), Plaintiffs did not receive the benefit
for which they bargained for when they provided payment for tuition
and various fees.
Plaintiffs and Defendants entered into a contract where Plaintiffs
would provide payment in the form of tuition and fees and
Defendants would provide in-person educational services,
experiences, opportunities, and other related services.
On March 8, 2020, Hofstra Law canceled all in-person education
experiences and services, then transitioned to complete online
education by March 9, 2020. Based on these closures, Defendants
have failed to uphold their end of the contract to provide
in-person educational services and experiences.
Despite Defendants failure to provide the services and experiences
as bargained for Defendants have not offered proportionate refunds
of the tuition and fees that Plaintiff and the Class had paid.
Plaintiff is a student and a resident of East Setauket, New York.
He was enrolled as a full-time student at Hofstra Law during the
Spring 2020 semester.
Defendant Hofstra University – Maurice A. Deane School of Law is
a private law school whose principal place of business is located
in Hempstead, New York.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Jeremy Francis, Esq.
THE SULTZER LAW GROUP, P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Telephone: (845) 483-7100
E-mail: sultzerj@thesultzerlawgroup.com
francisj@thesultzerlawgroup.com
HOMELAND SECURITY: Noncitizen Children Class Sought
---------------------------------------------------
In class action lawsuit captioned as P.J.E.S., A MINOR CHILD, by
and through his father and NEXT FRIEND, Mario Escobar Francisco, on
behalf of himself and others similarly situated, v. CHAD F. WOLF,
Acting Secretary of Homeland Security, in his official capacity, et
al., Case No. 1:20-cv-02245 (D. Colo.), the Plaintiff asks the
Court to certify a class consisting of:
"all unaccompanied noncitizen children who (1) are or
will be detained in U.S. government custody in the United
States, and (2) are or will be subjected to the Title 42
Process."
The Plaintiff P.J.E.S. is a child who came to the United States
alone and is being held pending removal from the United States
under the government's novel and unlawful Title 42 Process.
The United States Department of Homeland Security (DHS) is the U.S.
federal executive department responsible for public security,
roughly comparable to the interior or home ministries of other
countries.
Chad Wolf is acting Department of Homeland Security (DHS)
Secretary.[CC]
The Plaintiff is represented by:
Stephen B. Kang, Esq.
Cody Wofsy, Esq.
Morgan Russell, Esq.
Adrienne Harrold, Esq.
Celso J. Perez, Esq.
Lee Gelernt, Esq.
Daniel A. Galindo, Esq.
Celso J. Perez, Esq.
Andre Segura, Esq.
Kathryn Huddleston, Esq.
Rochelle Garza, Esq.
Brantley Shaw Drake, Esq.
Scott Michelman, Esq.
Arthur B. Spitzer, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
Immigrants’ Rights Project
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0770
- and -
Karla M. Vargas, Esq.
Efren C. Olivares, Esq.
TEXAS CIVIL RIGHTS PROJECT
1017 W. Hackberry Ave.
Alamo, TX 78516
Telephone: (956) 787-8171
- and -
Robert Silverman,Esq.
OXFAM AMERICA
226 Causeway Street, Suite 500
Boston, MA 02114
Telephone: (617) 482-1211
HYDROSTATIC OIL: Faces Mosley Suit Over Unpaid Overtime Wages
-------------------------------------------------------------
MARK MOSLEY, individually and on Behalf of All Others Similarly
Situated PLAINTIFF vs. HYDROSTATIC OIL TOOLS, INC., DEVIN DEW,
RANDY PHARR and BILLY PHARR DEFENDANTS, Case No. 1:20-cv-01040-SOH
(W.D. Ark., August 13, 2020) is a collective action brought by the
Plaintiff against Defendants for violations of the overtime
provisions of the Fair Labor Standards Act and the Arkansas Minimum
Wage Act.
Plaintiff was employed by Defendant as a Shop Hand from February of
2010 to July of 2020. Plaintiff's primary duties as a Shop Hand
were to assemble and repair tools used at oilfield locations, drive
tools out to oilfield locations, load trucks and haul water.
According to the complaint, Plaintiff and other Shop Hands did not
receive overtime premiums for hours worked in excess of 40 in a
workweek. Plaintiff and other Shop Hands were and are entitled to
one and one-half times their regular rate of pay for all hours
worked in excess of 40 in a week.
Hydrostatic Oil Tools, Inc. is a Magnolia, Arkansas-based company
that provides products and services in the oil and gas industry,
throughout the United States in those areas in which fracking is a
viable business.[BN]
The Plaintiff is represented by:
Tess Bradford, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: tess@sanfordlawfirm.com
josh@sanfordlawfirm.com
INNOVATIVE TECHNOLOGY: Monegro Alleges Violation under ADA
----------------------------------------------------------
Innovative Technology Electronics, LLC is facing a class action
lawsuit filed pursuant to the Americans with Disabilities Act. The
case is styled as Frankie Monegro, on behalf of himself and all
others similarly situated, Plaintiff v. Innovative Technology
Electronics, LLC, Defendant, Case No. 1:20-cv-06117 (S.D. N.Y.,
Aug. 5, 2020).
Innovative Technology Electronics Corp. manufactures and supplies
electronic products.[BN]
The Plaintiff is represented by:
David Paul Force, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: dforce@steinsakslegal.com
INOGEN INC: Bid to Dismiss California Securities Suit Pending
-------------------------------------------------------------
Inogen, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on August 5, 2020, for the quarterly period
ended June 30, 2020, that the defendants are awaiting the court's
ruling on their motion to dismiss the complaint in the class action
suit entitled, In re Inogen, Inc. Sec. Litig., No.
2:19-cv-01643-FMO-AGR.
On March 6, 2019, plaintiff William Fabbri filed a lawsuit against
Inogen, Scott Wilkinson, and Alison Bauerlein, in the United States
District Court for the Central District of California on behalf of
a purported class of purchasers of the Company's securities.
On March 21, 2019, plaintiff Steven Friedland filed a substantially
similar lawsuit against the same defendants in the same court.
On May 20, 2019, the court issued an order consolidating the two
lawsuits under the name In re Inogen, Inc. Sec. Litig., No.
2:19-cv-01643-FMO-AGR, appointing Dr. John Vasil and Paragon Fund
Management as lead plaintiffs, and appointing Robbins Geller Rudman
& Dowd LLP and Glancy Prongay & Murray LLP as lead plaintiffs'
counsel.
On July 10, 2019, the lead plaintiffs filed a consolidated amended
complaint on behalf of a purported class of purchasers of the
Company's common stock between November 8, 2017 and May 7, 2019.
The complaint generally alleges that the defendants failed to
disclose that: (i) Inogen had overstated the true size of the total
addressable market for its portable oxygen concentrators and had
misstated the basis for its calculation of the total addressable
market; (ii) Inogen had falsely attributed its sales growth to the
strong sales acumen of its salesforce, rather than to deceptive
sales practices; (iii) the growth in Inogen's domestic
business-to-business sales to home medical equipment providers was
inflated, unsustainable and was eroding direct-to-consumer sales;
and (iv) Inogen's decision to focus on sales over rentals of
portable oxygen concentrators harmed its ability to serve the
Medicare market, in violation of sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended.
The complaint seeks compensatory damages in an unspecified amount,
costs and expenses, including attorneys' fees and expert fees,
prejudgment and post-judgment interest and such other relief as the
court deems proper.
On January 2, 2020, the court dismissed the consolidated amended
complaint with leave to amend. On January 9, 2020, the plaintiffs
filed a second amended complaint generally alleging substantially
similar claims as those in the previous complaint. On January 23,
2020, the defendants filed a motion to dismiss the second amended
complaint.
The Company intends to vigorously defend itself against these
allegations.
No further updates were provided in the Company's SEC report.
Inogen, Inc., a medical technology company, primarily develops,
manufactures, and markets portable oxygen concentrators for
patients, physicians and other clinicians, and third-party payors
in the United States and internationally. Inogen, Inc. was founded
in 2001 and is headquartered in Goleta, California.
INTERSECT ENT: Yaron Class Suit Underway in California
------------------------------------------------------
Intersect ENT, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that the company continues to
defend itself in a putative class action suit styled, Yaron v.
Intersect ENT, Inc., et al.
In May 2019, a purported stockholder of the Company, Avi Yaron,
filed a putative class action complaint in the United States
District Court for the Northern District of California, entitled
Yaron v. Intersect ENT, Inc., et al., Case No. 4:19-cv-02647,
against the Company and certain individual officers and directors
alleging violations of the Securities Exchange Act of 1934.
The complaint alleges that the Company and the individual officers
made false and/or misleading statements about the Company's
business and seeks unspecified damages and attorney's fees.
The Court appointed the lead plaintiff and set a schedule for
initial motions and pleadings.
By order dated June 19, 2020, the Court granted the Company's
motion to dismiss the amended complaint with leave to amend.
On July 29, 2020, the plaintiff filed an amended complaint. The
Company believes this lawsuit is without merit and intends to
vigorously defend against it.
Intersect said, "As of June 30, 2020, the Company has not recorded
a contingent liability associated with this lawsuit, as the Company
has not determined that a loss is probable. In addition, any
possible loss or range of loss, cannot be reasonably estimated at
this time."
Intersect ENT, Inc., incorporated on October 6, 2003, is a
commercial-stage drug-device company. The Company develops drugs
for patients with ear, nose and throat (ENT) conditions. The
company is based in Menlo Park, California.
JEFFERSON CAPITAL SYSTEMS: Stallworth Files FDCPA Suit in New York
------------------------------------------------------------------
A class action lawsuit has been filed against Jefferson Capital
Systems, LLC. The case is styled as Alexus Stallworth, individually
and on behalf of all others similarly situated, Plaintiff v.
Jefferson Capital Systems, LLC, Defendant, Case No. 1:20-cv-03607
(E.D.N.Y., Aug. 11, 2020).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Jefferson Capital Systems, LLC is a debt collector. This is an
attempt to collect a debt and any information obtained will be used
for that purpose.[BN]
The Plaintiff is represented by:
Craig B. Sanders, Esq.
Barshay Sanders, PLLC
100 Garden City Plaza, Suite 500
Garden City, NY 11530
Tel: (516) 203-7600
Fax: (516) 281-7601
Email: csanders@barshaysanders.com
KUSHAGRAM: Parker Sues Over Unsolicited Text Messages
-----------------------------------------------------
The case TOY PARKER, individually and on behalf of others similarly
situated, Plaintiff, v. KUSHAGRAM, Defendant, Case No.
8:20-cv-01501 (C.D. Cal., August 13, 2020) arises from the illegal
actions of Defendant in negligently, knowingly, and/or willfully
contacting Plaintiff on her cellular telephone, in violation of the
Telephone Consumer Protection Act, 47 U.S.C. Section 227, et seq.,
("TCPA"), thereby invading Plaintiff's privacy.
Plaintiff is not Defendant's customer, nor has Plaintiff ever done
business with Defendant. Plaintiff never sought Defendant's
business and did not authorize any pre-recorded or automated
robotic calls or text messages to her cellular number.
According to the complaint, on or about April 29, 2020, Defendant
sent Plaintiff an unsolicited, automated text message to
Plaintiff's cellular telephone number using an automatic telephone
dialing system. On May 1, May 6, and May 27, 2020, Defendant sent
other unsolicited text messages to Plaintiff's cell phone using
various numbers. Defendant initiated telephonic communications to
Plaintiff's cellular telephone. Plaintiff found these
communications excessive, inconvenient, harassing, and placed in
complete disregard of Plaintiff's privacy.
The advertisement and marketing text messages at issue were sent by
using "equipment which has the capacity (1) to store numbers to be
called; or (2) to produce numbers to be called, using a random or
sequential number generator -- and to dial such numbers
automatically.
Kushagram is a cannabis delivery service serving the Oakland,
California area.[BN]
The Plaintiff is represented by:
Yana A. Hart, Esq.
KAZEROUNI LAW GROUP, APC
2221 Camino Del Rio S., Suite 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: yana@kazlg.com
LIVE NATION: Still Defends Suits Related to Overpriced Tickets
--------------------------------------------------------------
Live Nation Entertainment, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on August 5, 2020, for
the quarterly period ended June 30, 2020, that the company
continues to defend several class action suits related to the
resale of tickets on secondary ticket exchanges at elevated
prices.
The following putative class action lawsuits were filed against
Live Nation and/or Ticketmaster in the United States and Canada:
Vaccaro v. Ticketmaster LLC (Northern District of Illinois, filed
September 2018); Ameri v. Ticketmaster LLC (Northern District of
California, filed September 2018);
Lee v. Ticketmaster LLC, et al. (Northern District of California,
filed September 2018);
Thompson-Marcial v. Ticketmaster Canada Holdings ULC (Ontario
Superior Court of Justice, filed September 2018);
McPhee v. Live Nation Entertainment, Inc., et al. (Superior Court
of Quebec, District of Montreal, filed September 2018);
Crystal Watch v. Live Nation Entertainment, Inc., et al. (Court of
Queen’s Bench for Saskatchewan, by amendments filed September
2018);
Gaetano v. Live Nation Entertainment, Inc., et al. (Northern
District of New York, filed October 2018);
Dickey v. Ticketmaster LLC, et al. (Central District of California,
filed October 2018); Gomel v. Live Nation Entertainment, Inc., et
al. (Supreme Court of British Columbia, Vancouver Registry, filed
October 2018);
Smith v. Live Nation Entertainment, Inc., et al. (Ontario Superior
Court of Justice, filed October 2018);
Messing v. Ticketmaster LLC, et al. (Central District of
California, filed November 2018); and
Niedbalski v. Ticketmaster LLC, et al. (Central District of
California, filed December 2018).
In March 2019, the court granted the defendants' motion to compel
arbitration of the Dickey lawsuit and stayed the matter. The
parties reached a settlement and the case was dismissed with
prejudice in November 2019.
In April 2019, the court granted the defendants' motion to compel
arbitration of the Lee lawsuit and dismissed the case. Lee
subsequently appealed the District Court's ruling to the Ninth
Circuit, and in June 2020 the Ninth Circuit affirmed the District
Court's ruling in the defendants' favor.
The Gaetano lawsuit was voluntarily dismissed with prejudice by the
plaintiff in April 2019.
The Ameri lawsuit was dismissed in May 2019 in light of the
parties' agreement to arbitrate the matter, and the Vaccaro lawsuit
was settled and dismissed in June 2019.
The Messing and Niedbalski lawsuits are stayed pending the outcome
of the appeal in the Lee matter.
The remaining lawsuits make similar factual allegations that Live
Nation and/or Ticketmaster LLC engage in conduct that is intended
to encourage the resale of tickets on secondary ticket exchanges at
elevated prices.
Based on these allegations, each plaintiff asserts violations of
different state/provincial and federal laws. Each plaintiff also
seeks to represent a class of individuals who purchased tickets on
a secondary ticket exchange, as defined in each plaintiff's
complaint.
The complaints seek a variety of remedies, including unspecified
compensatory damages, punitive damages, restitution, injunctive
relief and attorneys' fees and costs.
Based on information presently known to management, the company do
not believe that a loss is probable of occurring at this time, and
believe that the potential liability, if any, will not have a
material adverse effect on the company's financial position, cash
flows or results of operations.
Live Nation said, "Further, we do not currently believe that the
claims asserted in these lawsuits have merit, and considerable
uncertainty exists regarding any monetary damages that will be
asserted against us. We intend to vigorously defend these
actions."
Live Nation Entertainment, Inc. operates as a live entertainment
company. It operates through Concerts, Sponsorship & Advertising,
and Ticketing segments. The Company was incorporated in 2005 and is
headquartered in Beverly Hills, California.
LUMBER LIQUIDATORS: Sept. 24 Final Approval Hearing on Gold Accord
------------------------------------------------------------------
Lumber Liquidators Holdings, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 5,
2020, for the quarterly period ended June 30, 2020, that a hearing
to consider final approval of the settlement in the class action
suit initiated by Dana Gold is currently scheduled for September
24, 2020.
In 2014, Dana Gold filed a purported class action lawsuit alleging
that certain bamboo flooring that the Company sells (the "Strand
Bamboo Product") is defective (the "Gold Litigation").
On September 30, 2019, the parties finalized a settlement agreement
that is consistent with the terms of the Memorandum of
Understanding previously disclosed by the Company, which would
resolve the Gold Litigation on a nationwide basis.
Under the terms of the settlement agreement, the Company will
contribute $14 million in cash and provide $14 million in
store-credit vouchers, with a potential additional $2 million in
store-credit vouchers based on obtaining a claim’s percentage of
more than 7%, for an aggregate settlement of up to $30 million.
The settlement agreement clearly indicates that the settlement does
not constitute or include an admission by the Company of any fault
or liability, and the Company does not admit any fault, wrongdoing
or liability.
On December 18, 2019, the court issued an order that, among other
things, granted preliminary approval of the settlement agreement.
Following the preliminary approval, and pursuant to the terms of
the settlement agreement, in December 2019, the Company paid $1
million for settlement of administrative costs, which is part of
the Gold Cash Payment, to the plaintiff's settlement escrow
account.
Notice has been disseminated to the class members by the settlement
administrator and a Final Approval and Settlement Hearing is
currently scheduled for September 24, 2020.
Only seven objectors filed objections to the settlement agreement
that will be addressed at the Final Approval and Settlement
Hearing. The settlement agreement is subject to certain
contingencies, including court approval.
There can be no assurance that a settlement will be finalized and
approved by the court at the Final Approval and Settlement Hearing
or as to the ultimate outcome of the litigation.
Lumber Liquidators said, "If a final, court-approved settlement is
not reached, the Company will defend the matter vigorously and
believes there are meritorious defenses and legal standards that
must be met for, among other things, success on the merits. The
Company has notified its insurance carriers and continues to pursue
coverage, but the insurers to date have denied coverage. As the
insurance claim is still pending, the Company has not recognized
any insurance recovery related to the Gold Litigation."
No further updates were provided in the Company's SEC report.
Lumber Liquidators Holdings, Inc., together with its subsidiaries,
operates as a multi-channel specialty retailer of hard-surface
flooring, and hard-surface flooring enhancements and accessories.
The company also offers its products through its Website, catalogs,
and call center. Lumber Liquidators Holdings, Inc. was founded in
1994 and is headquartered in Toano, Virginia.
LUMBER LIQUIDATORS: Steele Class Action Still Ongoing in Canada
---------------------------------------------------------------
Lumber Liquidators Holdings, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 5,
2020, for the quarterly period ended June 30, 2020, that the
company continues to defend a class action lawsuit in Canada
initiated by Sarah Steele.
On or about April 1, 2015, Steele filed a purported class action
lawsuit in the Ontario, Canada Superior Court of Justice against
the Company.
In the complaint, Steele's allegations include strict liability,
breach of implied warranty of fitness for a particular purpose,
breach of implied warranty of merchantability, fraud by
concealment, civil negligence, negligent misrepresentation and
breach of implied covenant of good faith and fair dealing.
Steele did not quantify any alleged damages in her complaint, but
seeks compensatory damages, punitive, exemplary and aggravated
damages, statutory remedies, attorneys' fees and costs.
Lumber Liquidators said, "While the Company believes that a loss
associated with the Steele litigation is possible, the Company is
unable to reasonably estimate the amount or range of possible
loss."
No further updates were provided in the Company's SEC report.
Lumber Liquidators Holdings, Inc., together with its subsidiaries,
operates as a multi-channel specialty retailer of hard-surface
flooring, and hard-surface flooring enhancements and accessories.
The company also offers its products through its Website, catalogs,
and call center. Lumber Liquidators Holdings, Inc. was founded in
1994 and is headquartered in Toano, Virginia.
MCGRAW HILL LLC: Uchenik Suit Transferred to New York
-----------------------------------------------------
The case captioned as Alexandra Uchenik, Martha Barabas, Austin
Warman and Bruce Puleo, individually and on behalf of all others
similarly situated, Plaintiffs v. McGraw Hill, LLC, formerly known
as McGraw-Hill Global Education Holdings, LLC, Pearson Education,
Inc., Cengage Learning, Inc., Educational Publishers Enforcement
Group, Barnes & Noble College Booksellers L.L.C., Barnes & Noble
Education, Inc., Follett Higher Education Group, McGraw-Hill Global
Education Holdings LLC, Eric Pica, individually and on behalf of
all others similarly situated, Defendants, Martha Barabas,
Intervenor Plaintiff, was transferred from the Delaware to the U.S.
District Court for the Southern District of New York on August 11,
2020, and assigned Case No. 1:20-md-02946-DLC.
The docket of the case states the nature of suit as Anti-Trust
filed as an Antitrust Litigation (Monopolizing Trade).
McGraw-Hill LLC. is a publisher of educational assessment solutions
for the early learner, K-12, and adult basic education
markets.[BN]
The Plaintiffs are represented by:
Marc Edelson, Esq.
Edelson Lechtzin LLP
3 Terry Drive, Ste 205
Newtown, PA 18940
Tel: (215) 867-2399
Fax: (267) 685-0676
Email: medelson@edelson-law.com
- and -
Robert N. Kaplan, Esq.
Kaplan Fox & Kilsheimer LLP (NYC)
850 Third Avenue
14th Floor
New York, NY 10022
Tel: (212) 687-1980
Fax: (212) 687-7714
Email: rkaplan@kaplanfox.com
- and -
John D. Radice, Esq.
Radice Law Firm, P.C.
475 Wall Street
Princeton, NJ 08540
Tel: (646) 245-8502
Fax: (609) 385-0745
Email: jradice@radicelawfirm.com
- and -
William Gerald Caldes, Esq.
SPECTOR ROSEMAN & KODROFF, P.C.
1818 MARKET STREET, SUITE 2500
PHILADELPHIA, PA 19103
Tel: (215) 496-0300
Fax: (215) 496-6611
Email: bcaldes@srkattorneys.com
The Defendants are represented by:
Amy Neda Vegari, Esq.
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036
Tel: (212) 336-2000
Fax: (212) 336-2222
Email: avegari@pbwt.com
- and -
William Francis Cavanaugh , Jr, Esq.
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, NY 10036
Tel: (212) 336-2000
Fax: (212) 336-2222
Email: wfcavanaugh@pbwt.com
- and -
Jennifer Quinn-Barabanov, Esq.
Steptoe & Johnson LLP
1330 Connecticut Avenue, NW
Washington, DC 20036
Tel: (202) 429-8027
Fax: (202) 429-3902
Email: jquinnba@steptoe.com
- and -
Michael Dockterman, Esq.
Steptoe & Johnson LLP
227 West Monroe St.
Suite 4700
Chicago, IL 60606
Tel: (312) 577-1243
Fax: (312) 577-1370
Email: mdockterman@steptoe.com
- and -
Andrew Ewalt, Esq.
Freshfields Bruckhaus Deringer US LLP
700 13th Street NW
Ste 10th Floor
Washington DC, DC 20005
Tel: (202) 777-4500
Email: andrew.ewalt@freshfields.com
- and -
Christian Vandergeest, Esq.
Freshfields Bruckhaus Deringer Us LLP (NYC)
601 Lexington Avenue
New York, NY 10022
Tel: (212) 277-4000
Email: christian.vandergeest@freshfields.com
- and -
Glenn A. Clark, Esq.
RIKER, DANZIG, SCHERER, HYLAND & PERRETTI, LLP
ONE SPEEDWELL AVENUE
PO BOX 1981
MORRISTOWN, NJ 07092-1981
Tel: (973) 538-0800
Email: gclark@riker.com
- and -
Richard Sutton Snyder , Sr., Esq.
Freshfields Bruckhaus Deringer LLP
700 13th St. NW
10th Floor
Washington, DC 20005
Tel: (202) 777-4500
Email: richard.snyder@freshfields.com
- and -
Stephanie D. Edelson, Esq.
Riker, Danzig, Scherer, Hyland and Perretti
One Speedwell Avenue
Morristown, NJ 07960
Tel: (973) 451-8756
Email: sedelson@riker.com
- and -
Linda G. Harvey, Esq.
GREENBERG, DAUBER, EPSTEIN & TUCKER, PC
ONE GATEWAY CENTER
SUITE 600
NEWARK, NJ 07102-5311
Tel: (973) 643-3700
Email: lharvey@greenbergdauber.com
- and -
Lee Albert, Esq.
Glancy Prongay & Murray LLP
230 Park Avenue, Suite 530
New York, NY 10169
Tel: (212) 682-5340
Fax: (212) 682-0988
Email: lalbert@glancylaw.com
MICHIGAN DEPARTMENT: Truss Seeks to Certify Three Subclasses
------------------------------------------------------------
In class action lawsuit captioned as Cooper Street Correctional
Facility Employees, All Inmates Joinder of Parties, v. Heidi
Washington, Director of Michigan Department of Corrections; and
Dennis Straub, Deputy Director, Case No. 2:20-cv-12157-SJM-PTM
(E.D. Mich.), Mr. Earl Flynn Truss asks the Court for an order
granting his motion to certify these class and subclasses pursuant
to Fed. R. Civ. P. Rule 23(A):
1. Inmate Population Sublcass:
"all current and future persons incarcerated at the Copper
Street Correctional Facility (Facility) during the course
of COVID-19 pandemic who have not tested positive on May
19, 2020";
2. Employees Subclass:
"all current and future persons working at the Facility
during the course of COVID-19 Pandemic who have been here
before and since May 19, 2020, where prison population was
tested for COVID-19"; and
3. Medically Vulnerable Subclass:
"all prisoners in special housing uit who are over the age
of 50 who regardless of age, experience, and underlying
medical conditions that places them at particular risk of
serious illness or death from COVID-19";
The Plaintiffs filed this complaint to redress the deprivation of
rights secured by the Constitution and laws of the United States
The Michigan Department of Corrections oversees prisons and the
parole and probation population in the state of Michigan, United
States. It has 31 prison facilities, and a Special Alternative
Incarceration program, together composing approximately 41,000
prisoners.[CC]
Mr. Truss appears pro se.
MOODY'S CO-WORKER: Purinton Sues Over Unpaid Wages for Technicians
------------------------------------------------------------------
Matthew W. Purinton, on behalf of himself and all others similarly
situated, Plaintiff, v. Moody's Co-Worker Owned, Inc., Shawn Moody,
Merritt Thad Moody, and Danielle Moody, Defendants, Case No.
2:20-cv-00296-JAW (D. Me., August 14, 2020) seeks to stop Moody's
long-time payroll practices and guarantee its workers the right to
be paid for all the time they work and to be paid overtime for
working over 40 hours in a week pursuant to the Fair Labor
Standards Act, 29 U.S.C. Sections 201-219, and the Maine Wages and
Medium of Payment laws, 26 M.R.S. Sections 621-A-629B.
Moody's has maintained a written employment policy directing
Plaintiff and all other employees to take two unpaid 15-minute
breaks during the day. And it has specifically instructed its
employees to deduct these two 15-minute rest breaks when recording
their hours on their daily timesheets. Moody's failure to pay its
hourly workers any wages or overtime pay for these short, 15-minute
rest breaks is an open-and-shut violation of Maine and federal wage
laws.
Moody's has also violated federal and Maine wage laws by requiring
Plaintiff and all other employees to work on a Saturday in October
without any pay. Moody's calls this its "Clean Up" day.
Moody's Co-Worker Owned, Inc. is a Gorham, Maine-headquartered auto
body repair service provider.[BN]
The Plaintiff is represented by:
Carol J. Garvan, Esq.
Valerie Z. Wicks, Esq.
David G. Webbert, Esq.
JOHNSON, WEBBERT & YOUNG, LLP
160 Capitol Street, P.O. Box 79
Augusta, ME 04332-0079
Telephone: (207) 623-5110
E-mail: cgarvan@work.law
vwicks@work.law
dwebbert@work.law
NEWARK CITY, NJ: Fails to Pay Minimum & OT Wages, Aziz et al Claim
------------------------------------------------------------------
MALIKUL AZIZ, RONNIE CRUZ, and RUDAN RAMSAHAL, individually and on
behalf of all of those similarly situated, Plaintiffs v. CITY OF
NEWARK, NEW JERSEY, Defendant, Case No. 2:20-cv-10309 (D.N.J.,
August 11, 2020) is a collective action complaint brought against
Defendant for its alleged unlawful employment policy and practice
in violation of the Fair Labor Standards Act, New Jersey Wage and
Hour Law, and New Jersey Wage Payment Law.
Plaintiffs are current and former employees of the City of Newark,
New Jersey, who are civil service exam passers and were sent to the
New Jersey State Police Academy at Sea Girt for a 16 week cadet
training program to become full-time police officers from in or
about August 2017 through and including December 2017.
Plaintiffs allege that Defendant failed to pay them their lawful
minimum wages for all hours worked and premium overtime
compensation for all hours worked in excess of 40 per workweek.
Moreover, Defendant failed to record all of the time Plaintiffs and
the FLSA Collective spent working for the benefit of Defendant.
Newark City is a municipal entity created and authorized under the
laws of the State of New Jersey. [BN]
The Plaintiffs are represented by:
Adam P. Slater, Esq.
SLATER SLATER SCHULMAN LLP
488 Madison Ave., 20th Floor
New York, NY 10022
Tel: (212) 922-0906
Website: https://sssfirm.com/
NEWELL BRANDS: Denies Blind Users Full Website Access, Jaquez Says
------------------------------------------------------------------
RAMON JAQUEZ, individually and on behalf of all others similarly
situated, Plaintiff v. NEWELL BRANDS INC., Defendant, Case No.
1:20-cv-06354-AJN (S.D.N.Y., August 12, 2020) is a class action
against the Defendant for violations of the Americans with
Disabilities Act and the New York City Human Rights Law.
According to the complaint, the Defendant discriminates against the
Plaintiff and all others similarly situated consumers by failing to
maintain and operate its website to be fully accessible to and
independently usable by blind or visually-impaired people. The
Defendant's website, www.calphalon.com, contains various access
barriers that hinder the Plaintiff and Class members to have full
and equal access to the products and services offered by the
Defendant on its website. These access barriers include: (1)
failure to accurately describe the contents of graphical images,
(2) failure to properly label title, (3) failure to distinguish one
page from another, (4) contain multiple broken links, (5) contain
headings that do not describe the topic or purpose, and (6) the
keyboard user interfaces lack a mode of operation where the
keyboard focus indicator is visible.
As a result of the Defendant's failure and refusal to remove access
barriers to its website, the Plaintiff and Class members have been
and are still being denied equal access to the Defendant's numerous
services and benefits offered to the public through the website.
Newell Brands Inc. is an appliance and cookware company that owns
and operates the website, www.calphalon.com. [BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Telephone: (732) 695-3282
Facsimile: (732) 298-6256
E-mail: Yzelman@MarcusZelman.com
NORTHWESTERN MUTUAL: Wins Prelim. OK of Russett Suit Settlement
---------------------------------------------------------------
The U.S. District Court for the Southern District of New York
issued an Order granting preliminary approval of the Parties' class
action settlement agreement in the case captioned ELIZABETH
RUSSETT, BETH CALABRESE, and JAN BULLARD, individually and on
behalf of all others similarly situated v. THE NORTHWESTERN MUTUAL
LIFE INSURANCE COMPANY, Case No. 19-cv-07414-KMK (S.D.N.Y.).
For purposes of settlement only: (a) Bursor & Fisher, P.A. is
appointed Class Counsel for the Settlement Class; and (b) Elizabeth
Russett, Beth Calabrese, and Jan Bullard are named Class
Representatives. For purposes of settlement only, the Court
conditionally certifies the Settlement Class as defined in the
Settlement Agreement:
[A]ll Persons with a New York mailing address who from
June 21, 2016 to and through the date of this Order were
charged by Defendant an additional rate or fee or a
differential in the rate or fee based on the method by which
they chose to make payments.
Excluded from the Settlement Class are (1) any Judge or Magistrate
presiding over this Action and members of their families; (2) the
Defendant, Defendant's subsidiaries, parent companies, successors,
predecessors, and any entity in which the Defendant or its parents
have a controlling interest and their current or former officers,
directors, agents, attorneys, and employees; (3) Persons who
properly execute and file a timely request for exclusion from the
class; and (4) the legal representatives, successors or assigns of
any such excluded Persons.
Class Counsel shall file papers in support of their Fee Award and
Class Representatives' incentive awards with the Court. The
Defendant may, but is not required to, file a response with the
Court to Class Counsel's Fee Petition on Sept. 15, 2020, and a
reply in support of the Fee Petition is due on Sept. 22, 2020.
Papers in support of final approval of the Settlement Agreement and
any supplementation to the Fee Petition shall be filed with the
Court on or before Sept. 22, 2020.
The Court approves, as to form, content, and distribution, the
Notice Plan set forth in the Settlement Agreement, including Claim
Form attached to the Settlement Agreement as Exhibit A, the Notice
Plan and all forms of Notice to the Settlement Class as set forth
in the Settlement Agreement and Exhibits B, C and D, thereto.
The Court also approves the request for the appointment of JND
Legal Administration as Settlement Administrator of the Settlement
Agreement.
The Final Approval Hearing will be held before the Court on October
6, 2020, at 10:30 a.m.
All further proceedings in the Action are ordered stayed until
Final Judgment or termination of the Settlement Agreement,
whichever occurs earlier, except for those matters necessary to
obtain and/or effectuate final approval of the Settlement
Agreement.
A full-text copy of the District Court's May 28, 2020 Order is
available at https://tinyurl.com/y86t2dzk from Leagle.com.
OAK RIDGE: Averted Class Action Over Patient Abuses
---------------------------------------------------
Marg. Bruineman, writing for Orilliamatters.com, reports that
Marilyn Dolmage painfully read the details about how some patients
at the former Oak Ridge psychiatric institution in
Penetanguishene--now called Waypoint--were treated.
It's yet another Simcoe County institution whose patients or
residents endured years of abuse in the past.
At Oak Ridge, the extreme treatment was referred to as torture.
An Ontario Superior Court judge has found the province and two
psychiatrists liable for using pain as an instrument in
"experimental forms of therapy" on 28 patients between 1966 and
1983 and "breaching their fiduciary duties and by perpetrating
assault and battery."
At the hands of their keepers, the patients in the maximum-security
psychiatric institution on Asylum Point were given drugs, including
the hallucinogen LSD, subject to a strict physical disciplinary
regime, and locked naked in an isolation cell, which also included
the use of hallucinogenic drugs.
Justice Edward Morton's judgment came in June, 20 years after the
case was first presented to the courts. By then, only 20 of the
patients suing were still alive to hear the decision.
A spokesperson for Ontario Attorney General Doug Downey said the
decision is being carefully reviewed as the government considers
whether or not to appeal.
Just the same, the case hasn't reached its final conclusion. A
hearing on damages has yet to be scheduled, with the total value of
the award anticipated to be in the millions of dollars.
Dolmage served as litigation guardian for Marie Slark in another
local high-profile institutional abuse case: Orillia's Huronia
Regional Centre (HRC). The shuttered facility, over the years,
housed thousands of people with a developmental disability; it has
weaved in and out of Dolmage's life since the death of her brother
there 60 years ago.
Dolmage started her career as a social worker at HRC where she met
Slark, a resident who was physically, sexually and emotionally
abused over the many years she lived there.
They, as well as many of the residents involved in that
class-action, are torn about the legal process they used to seek
justice.
Other victimized residents of Simcoe County institutions--the
Sheila Morrison School for learning disabilities in Utopia between
Barrie and Angus, as well as the Adult Occupational Centre in
Edgar, near Horseshoe Valley--also used the class-action process.
The striking difference in those institutional abuse cases that
happened in our backyard is that all, with the exception of the Oak
Ridge case, were class-actions.
Oak Ridge was also the only one that went to trial, while the
remaining cases were settled.
"Right to the last day we believed we were going to trial," said
Patricia Seth, who was sent to HRC in 1964 when she was seven years
old.
Like others who lived there, Seth wanted to tell the court about
what she had endured as a child and then as a young adult.
"The staff got protected by their union. We didn't have a union to
protect us; we had nowhere to run," said Seth, now 62 and living in
an apartment in Toronto. "We have beautiful freedom now."
When the Oak Ridge suit was launched in 2000, it did start life as
a class-action. But at a hearing three years later, Maurice
Cullity, then a judge with the Ontario Superior Court of Justice,
refused to certify it.
He found the individual situation that each patient was subjected
to differed from patient to patient and that they had individual
medical pasts. In addressing the breach of fiduciary duties, he was
"not satisfied that degrees of power imbalance and vulnerability
can be determined otherwise than on an individual basis."
His decision may well have been prescient.
Class-actions are a relatively young legal approach. The idea is to
provide a group of people who have been harmed by an organization
some redress.
Those cases typically involved product liability--like a car part
deemed to be deficient, but not worth the bother for one person to
sue over or for the courts to hear hundreds or thousands of cases
dealing with the same issue.
But a British Columbia case opened the door to using class-actions
for abuses that occurred in institutions across the country over
the years.
The principal objectives of class-actions identified by the Supreme
Court of Canada is the efficiency of having the court hear one
complaint from many people, deterring organizations from repeating
the offending behaviour and providing a group of people access to
justice.
But how they've been used in the past may not reflect how they'll
be used in the future, at least in Ontario.
There is anticipation that changes to Ontario's
not-quite-30-year-old Class Proceedings Act, which received Royal
Assent earlier in July, is introducing more stringent rules and
could limit their use. That's either a good thing or a bad thing,
depending on your perspective.
For those who have used class-actions to address historic cases of
abuse in institutions, the jury is out about whether or not they
were effective and achieved the goals of the class members.
"It was hard. We didn't get everything we wanted," said Slark, a
former HRC resident who's now 66 years old and living in Toronto.
"I think it's worth it, because people are listening to us now
about what happened."
But when asked if she would choose the route of a class-action
again, Seth replied: "Not after what we went through."
Dolmage also expressed some disappointment over the HRC
class-action process and its results. The class members, she said,
have no power, unlike individual lawsuits where the lawyers follow
the direction of their clients. And the payouts were also low.
On the other hand, the voices of the residents, many of whom had
been abused for years, were finally heard and, importantly,
believed. And the class action included all the former residents,
including those who could not speak and say what happened to them.
"I still think it's worthwhile, because the stories of the
survivors got out," said Dolmage. "We want the world to know that
places like this are wrong, they're wrong for everybody." [GN]
ONE WAY: Kiper et al. Sue Over Unpaid OT, Wrongful Termination
--------------------------------------------------------------
CHARLES KIPER and LENA POWELL, individually and on behalf of all
others similarly situated, Plaintiffs v. ONE WAY CLEANING COMPANY,
INC. and CITY WIDE MAINTENANCE CO., INC., Defendants, Case No.
4:20-cv-00643-FJG (W.D. Mo., August 12, 2020) is a class action
against the Defendants for unjust enrichment, wrongful termination,
and violations of the Fair Labor Standards Act and Missouri's
Minimum Wage Law.
According to the complaint, the Defendants failed to compensate the
Plaintiffs and all others similarly situated employees overtime pay
for all hours worked in excess of 40 hours per week. The Defendants
allegedly used different pay schemes and mechanisms to avoid
payment of overtime wages to their employees including using a
combination of hourly wages and a flat rate of pay, manipulating
and changing the work week and pay periods, and misclassifying
employees as supervisors or independent contractors or
subcontractors. Moreover, the Defendants retaliated against
Plaintiff Charles Kiper and terminated his employment after he made
complaints about their failure to pay appropriate overtime wages.
The Plaintiffs were employed by the Defendants to perform cleaning
services and related tasks in Jackson County, Missouri.
One Way Cleaning Company, Inc. is a company that provides
commercial cleaning services, with its principal office at 13010
2nd Street, Grandview, Missouri.
City Wide Maintenance Co., Inc. is a company that provides building
cleaning and maintenance services, with a principal place of
business in Lenexa, Kansas. [BN]
The Plaintiffs are represented by:
Garrett M. Hodes, Esq.
HODES LAW FIRM, LLC
900 Westport Road, 2nd Floor
Kansas City, MO 64111
Telephone: (816) 931-1718
Facsimile: (816) 994-6276
E-mail: garrett@hodeslawfirm.com
PURDUE PHARMA: Grimes County Joins Ongoing Opioid Class Action
--------------------------------------------------------------
Andre Perrard, writing for Willy 1550 AM, reports that Grimes
County is getting in on a big class-action lawsuit against a major
pharmaceutical company.
According to County Judge Joe Fauth, speaking in a recap video of
Commissioner's Court, spoke to what action the county is taking
against Purdue Pharma, which is currently involved in opioid
litigation.
"I do not know if we are going to get any funds out of that
class-action suit or not. But, we have approved our County Attorney
to submit paperwork, and there is a subject matter expert who has
put together some information, which says Grimes County could be
entitled to over seven million dollars. And that would be from 2003
expenditures, projected up to 2040," said Fauth.
Over 2,000 counties and cities have sued the company for "grossly"
misrepresenting "the risks of long-term use of those opioid drugs
for persons with chronic pain," according to the court documents.
Fauth went on to mention that there is a deadline to submit
paperwork, which is August 1st.
"We, as a court, believe it is worth our County Attorney's time to
research, fill out the form before the deadline, and if we are
entitled to any of those funds, then at some point in time, in my
life, your life or your grandchildren's life, we may receive that
money from the government," Fauth said.
The court gave County Attorney Jon C Fultz approval to submit
paperwork in the class action lawsuit. [GN]
RATTLER HOLDINGS: Monegro Alleges Violation of ADA
--------------------------------------------------
Rattler Holdings, LLC is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Frankie Monegro, on behalf of himself and all others similarly
situated, Plaintiff v. Rattler Holdings, LLC, Defendant, Case No.
1:20-cv-06110 (S.D. N.Y., Aug. 5, 2020).
Rattler Holdings, LLC (trade name Planetary Design) is in the
Commercial Containers business.[BN]
The Plaintiff is represented by:
David Paul Force, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: dforce@steinsakslegal.com
RIPPLE LABS: Court Consolidates Sostack and BMA Securities Suits
----------------------------------------------------------------
The U.S. District Court for the Northern District of California
issued an Order granting the Parties' Joint Administrative Motion
to Consider Whether Cases Should Be Related and Consolidated for
Pretrial Purposes in the case captioned VLADI ZAKINOV, et al. v.
RIPPLE LABS, INC., et al., Case No. 18-cv-06753-PJH (N.D. Cal.).
On May 11, 2020, Plaintiff Bradley Sostack and Defendants XRP Labs,
Inc., XRP II LLC, and Bradley Garlinghouse filed a Joint
Administrative Motion to Consider Whether Cases Should Be Related
and Consolidated for Pretrial Purposes." The parties ask the Court
to relate and consolidate an action against the Defendants recently
filed by Plaintiff Bitcoin Manipulation Abatement LLC ("Plaintiff
BMA") presently pending before Judge Richard Seeborg, Bitcoin
Manipulation Abatement LLC v. Ripple Labs, Inc., et. al.,
20-cv-3022-RS (the "BMA Action").
The Sostack Action involves multiple claims against the Defendants
for the alleged violation of federal and California state
securities laws, as well as certain provisions of the California
Business and Professions Code sections. On May 1, 2020, Plaintiff
BMA filed its action alleging seven claims against the Defendants
for violation of the same federal and California state laws as
those alleged in the Sostack Action.
The BMA Action arises out of an alleged scheme by the Defendants to
raise more than [sic] billion dollars through sales of XRP--an
unregistered security--to retail investors in violation of the
registration provisions of federal and California securities laws
with the primary purpose to enrich Ripple's executives, directors,
founders, and affiliates. Additionally, in order to drive demand
for and, thereby, increase profits from the sale of XRP, the
Defendants have made a litany of false and misleading statements
regarding XRP in violation of California's securities laws, and
false advertising and unfair competition laws.
District Judge Phyllis J. Hamilton opines that both the Actions
concern substantially the same parties and the same property and
events. The Court also concludes that relating the BMA Action to
the Sostack Action would avoid the duplication of labor and
conflicting results that might otherwise arise if the BMA Action
were to remain before Judge Seeborg.
Hence, the Court GRANTS the parties' joint motion to relate and
consolidate Bitcoin Manipulation Abatement, LLC v. Ripple Labs,
Inc., Case No. 20-3022-RS, with the Sostack Action. The Court
ORDERS that the Actions are related and consolidated and DIRECTS
the Clerk of Court to take all action prescribed to it under
paragraph 7 of the Court's March 18, 2019 order regarding
publication of notice.
A full-text copy of the District Court's May 25, 2020 Order is
available at https://tinyurl.com/y7rapcno from Leagle.com.
RLI CORP: Barrientos-Larios Suit Transferred to Calif. Dist. Ct.
----------------------------------------------------------------
The case captioned as Hector Ronaldo Barrientos-Larios,
individually and on behalf of all others similarly situated,
Plaintiffs v. RLI Corp. and Does 1 through 10, Defendants, was
transferred from the Calif. Superior with the assigned Case No.
20STCV23958 to the United States District Court for the Central
District of California on September 10, 2019, and assigned Case No.
2:20-cv-07029-DMG-PD.
The docket of the case states the nature of suit as Contract: Other
filed over Breach of Contract.
RLI, specialty insurance company, provides business insurance,
personal insurance and surety bonds to help safeguard the assets of
people and companies.[BN]
The Plaintiff is represented by:
Michael John Hassen, Esq.
Reallaw APC
1981 North Broadway Suite 280
Walnut Creek, CA 94596
Tel: (925) 359-7500
Fax: (925) 557-7690
Email: mjhassen@reallaw.us
The Defendants are represented by:
Michael Dale Prough, Esq.
Morison and Prough LLP
2540 Camino Diablo Suite 100
Walnut Creek, CA 94597
Tel: (925) 937-9990
Fax: (925) 937-3272
Email: MDP@morisonprough.law
- and -
Dean C Burnick, Esq.
Morison Prough LLP
2540 Camino Diablo Suite 100
Walnut Creek, CA 94597
Tel: (925) 937-9990
Fax: (949) 937-3272
Email: dcb@morisonprough.law
SHIRE PLC: Meijer One Step Closer to Leading Intuniv Class Action
-----------------------------------------------------------------
Holly Barker, writing for Bloomberg Law, reports that Meijer
Distribution Inc. is one step closer to representing
direct-purchaser plaintiffs in antitrust litigation in a
Massachusetts federal court alleging that Shire PLC and Actavis
conspired to delay the entrance of generic versions of Shire's ADHD
medication Intuniv.
Meijer is a member of the direct-purchaser class, consequently, it
"plainly has an interest relating to the case that would be
impaired if it could not intervene to protect its own interests,"
Judge Allison D. Burroughs said in the July 24 ruling allowing
intervention.
The court also said Meijer, preliminarily, has established that it
will adequately represent the class. [GN]
SYNCHRONY BANK: Court Sustains Arbitration in Auguste FLSA Suit
---------------------------------------------------------------
The U.S. District Court for the Southern District of Ohio issued a
Decision and Entry sustaining the Plaintiffs' Petition to Compel
Arbitration in the case captioned JOHN AUGUSTE, et al., Petitioners
v. SYNCHRONY BANK, Respondent, Case No. 3:19-cv-33 (S.D. Ohio).
This matter is before the Court on a Petition to Compel Arbitration
pursuant to Section 4 of the Federal Arbitration Act and the
Respondent's Motion to Compel Compliance with the Court's Order and
the FAA, and to Dismiss Petitioners' Petition to Compel. The
Respondent moves for dismissal based on the following: (1) this
Court's prior decision and order compelling individual arbitration
in Mason, et al. v. Synchrony Bank, No., 3:17-cv-314, 2018 WL
527981 (S.D. Ohio Jan. 22, 2018) ("Mason"); (2) Petitioners'
failure to comply with Section 4 of the FAA; and (3) Rule 12 (b)(1)
of the Federal Rules of Civil Procedure. Both the Petitioners and
the Respondent request attorney fees and costs.
The Court notes that both the Petitioners and the Respondent argue,
for different reasons, that the decision in Mason supports their
respective positions.
Petition to Compel Arbitration
On January 31, 2019, a Petition to Compel Arbitration ("Petition")
was filed by 20 former employees of the Respondent, Synchrony Bank
("Respondent" or "Synchrony"). The Petitioners seek an order from
this Court pursuant to 9 the FAA. The Petition states that
following this Court's decision in Mason, in which Synchrony's
motion to compel arbitration was sustained, the Petitioners
attempted to begin the arbitration process with Synchrony, but the
Respondent has since refused to arbitrate with the Petitioners. The
Petitioners contend that an order to compel arbitration is
necessary because the "[P]arties have a dispute regarding the
procedures required to submit" claims under Respondent's two
alternative dispute resolution ("ADR") programs, "the Solutions
program" and "the Resolution program."
Specifically, the Petition alleges disputes regarding two separate
issues in the pre-arbitration stage for the two ADR programs: (1)
issue concerning the Respondent's refusal "to accept [from
Petitioners] the Level I submissions" and (2) the second issue,
which allegedly led to the filing of the Petition, concerns about
the Parties disagreeing as to the applicability, interpretation and
enforceability of the ADR programs' provisions which require the
[Petitioners] to attend the Level II meetings alone, without a
representative, but allows the Respondent to have the Level I
manager, a higher level manager, and 'other Company
representatives' attend the Level II meeting.
Approximately two months after the Petition was filed, however, the
Respondent decided to accept, from the Petitioners' counsel,
"type-written signatures" of the individual Petitioners on forms
stating that the claims would be heard pursuant to the Resolution
and not the Solutions ADR program. Following this agreement,
Petitioners' counsel attempted to negotiate an agreement with
Respondent's counsel permitting Petitioners to attend, with legal
representation, the Level I Resolution pre-arbitration meeting via
telephone. On March 21, 2019, however, counsel for the Respondent
refused these requests and on April 1, 2019, the Respondent's
Motion was filed.
Because of the agreements reached after the filing of the Petition,
there is no longer any dispute concerning signatures and the only
pre-arbitration ADR program at issue is the attendee issue at Level
I of the Resolution program. As such, although counsel have
apparently discussed the issue of attendance and representation for
the Level I meetings under the Resolution ADR program, the Petition
itself does not specifically reference this as a dispute.
The Mason Decision
In Mason, the plaintiffs, who are nearly identical to the
petitioners in this case, alleged violations of the Fair Labor
Standards Act of 1938 ("FLSA"), 29 U.S.C. Section201 et seq., and
the Ohio Minimum Wage Fair Standards Act ("OMFWSA"), Ohio Rev. Code
Section 4111.01 et seq. Shortly after filing their complaint, the
plaintiffs filed a Motion for Conditional Certification requesting
expedited opt-in discovery and court-supervised notice to potential
opt-in plaintiffs. Synchrony then filed a Motion to Compel
Individual Arbitration and Dismiss or, in the Alternative, to Stay
the Proceedings. Synchrony argued that the plaintiffs were
signatories to the two ADR programs, Solutions and Resolution. The
ADR programs, although having slightly different language and
covering employees during different dates of hire, required that
(1) all employment-related disputes be arbitrated, including wage
and hour claims, (2) there was no right to litigate a claim in
state or federal court and (3) employees were required to arbitrate
on an individual basis and not part of a class or collective
action.
Synchrony argued, and this Court ultimately held, that there was
compulsory arbitration of FLSA claims and compulsory individual
arbitration of OMFWSA claims under Huffman v. Hilltop Cos., 747
F.3d 391, 398-99 (6th Cir. 2014). The Court further found that the
ADR programs, Solutions and Resolution, were valid agreements to
arbitrate wage claims individually. On January 22, 2018, the Court
granted the motion to compel arbitration and dismissed the
plaintiffs' case with prejudice.
Conclusion
In its Decision and Entry, the Court also concluded, among other
things, that the Plaintiff's Petition is not barred by the
doctrines of collateral estoppel, res judicata or waiver.
Accordingly, the Court rules that the Petition to Compel
Arbitration is SUSTAINED and the Respondent's Motion to Compel
Compliance with the Court's Order and the Federal Arbitration Act
and to Dismiss Petitioners' Petition to Compel is OVERRULED. The
requests of the Respondent for attorney fees, pursuant to 28 U.S.C.
Section 1927, and of the Petitioners for attorneys' fees, due to
the "bad faith conduct" of the Respondent, are DENIED. The Court
explains that the conduct of the attorneys in this litigation does
not "fall short of the obligations owed by a member of the bar to
the court," citing Red Carpet Studios Div. of Source Advantage,
Ltd. v. Sater, 465 F.3d 642 (6th Cir. 2006).
The issue of who can attend the Level I meeting is solely within
the authority of the arbitrator and must be resolved by the
arbitrator. Judgment shall be entered in favor of Petitioners and
against Respondent.
The captioned case is terminated upon the docket records of the
United States District Court for the Southern District of Ohio,
Western Division at Dayton.
A full-text copy of the District Court's May 28, 2020 Decision and
Entry is available at https://tinyurl.com/yccwkaxa from
Leagle.com.
TAO GROUP: Fails to Pay Minimum Wage, Angel et al. Allege
---------------------------------------------------------
ROBERTO ANGEL; NEFTALI VASQUEZ; ELVIS JIMENEZ; RORY KESSLER; SAMIR
ZEYNALOV; HENRY MORALES; and MORGAN SEDGLEY, individually and on
behalf of all others similarly situated, Plaintiffs v. TAO GROUP
INC.; MARC PACKER; NOAH TEPPERBERG; JASON STRAUSS; RICHARD WOLF;
and YOSHI KOJIMA, Defendants, Case No. 1:20-cv-05876 (S.D.N.Y.,
July 28, 2020) seeks to recover from the Defendants unpaid wages
and overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
The Plaintiffs were employed by the Defendants as staffs.
Tao Group Inc. develops, owns, and operates food, beverage, and
nightlife entertainment venues. [BN]
The Plaintiffs are represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, 8th Floor
New York, NY 10011
Telephone: (212) 465-1180
Facsimile: (212) 465-1181
TD AMERITRADE: Continues to Defend Hawkes Class Suit
----------------------------------------------------
TD Ameritrade Holding Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on August 6,
2020, for the quarterly period ended June 30, 2020, that the
defendants in the putative class action suit entitled, Hawkes v.
Bettino et al., case number 2020-0306-PAF, intend to defend
vigorously against the remaining claims alleged in the complaint
and believe that the claims are without merit.
On November 24, 2019, the Company entered into an Agreement and
Plan of Merger with The Charles Schwab Corporation and Americano
Acquisition Corp. The Merger Agreement was included as Exhibit 2.1
to the Company's Form 8-K filed with the SEC on November 27, 2019.
Upon the terms and subject to the conditions of the Merger
Agreement, Americano Acquisition Corp. will merge with and into the
Company (the "Merger"), with the Company surviving as a
wholly-owned subsidiary of Schwab.
On May 12, 2020, a putative class action complaint challenging the
Merger was filed in the Delaware Court of Chancery. The complaint
is captioned Hawkes v. Bettino et al., case number 2020-0306-PAF,
and names as Defendants each member of the Company's board of
directors who was on the Company's board of directors when the
Merger Agreement was approved, TD and Schwab.
Among other things, the complaint asserts a claim against such
directors alleging that the Merger violates Section 203 of the
Delaware General Corporation Law (the "Section 203 Claim") and that
the definitive joint proxy statement/prospectus fails to disclose
that the Merger does not comply with Section 203, which the
complaint claims is a material omission.
The complaint also alleges claims for breach of fiduciary duty
against members of the Company's board of directors who the
Plaintiff alleges are affiliated with TD and against TD as the
Company's alleged controlling stockholder, relating to the insured
deposit account agreement entered into between Schwab and TD.
The complaint further alleges a claim against Schwab for aiding and
abetting breaches of fiduciary duty.
The complaint sought to enjoin the Company's stockholder vote on
and consummation of the Merger and seeks an award of damages.
On May 12, 2020, the Plaintiff also filed (i) a motion seeking to
preliminarily enjoin the Company's stockholder vote on the Merger
on the grounds that the Merger is subject to the business
combination restrictions of Section 203, and (ii) a motion for
expedited proceedings, which asked the Court to set a preliminary
injunction hearing on this Section 203 Claim in advance of the
Company's stockholder vote on the Merger.
On May 15, 2020, the Court held a hearing on the Plaintiff's motion
for expedited proceedings. The Court granted the Plaintiff's motion
for expedited discovery, but declined to hold any injunction
hearing on the Plaintiff's Section 203 Claim prior to the Company's
June 4, 2020 special meeting.
On May 22, 2020, the Company filed a Form 8-K with the Securities
and Exchange Commission providing the Company's stockholders with
certain Section 203-related disclosures and asking stockholders to
approve the Merger by the affirmative vote of at least 662/3% of
the outstanding shares of the Company's common stock not deemed
owned by Schwab under Section 203.
On May 26, 2020, Plaintiff and Defendants entered into a
stipulation that, among other things, provided that if the Merger
received the requisite stockholder support contemplated by Section
203, Plaintiff would dismiss his Section 203 Claim as moot and
withdraw his application for a preliminary injunction.
At the Company's June 4, 2020 special meeting, the votes cast in
favor of the Merger represented in excess of 662/3% of the
outstanding Common Stock not allegedly deemed owned by Schwab under
Section 203. Accordingly, on June 11, 2020, Plaintiff dismissed his
Section 203 claim as moot and withdrew his preliminary injunction
motion.
The Defendants intend to defend vigorously against the remaining
claims alleged in the complaint and believe that the claims are
without merit.
In addition, as previously disclosed, eight complaints were filed
by purported stockholders of the Company in federal court
challenging the Merger, including (i) Kent v. TD Ameritrade Holding
Corporation et al., case number 1:20-cv-00388, filed in the United
States District Court for the District of Delaware; (ii) Stein v.
TD Ameritrade Holding Corporation et al., case number
1:20-cv-00410, filed in the United States District Court for the
District of Delaware; (iii) Roth v. TD Ameritrade Holding
Corporation et al., case number 2:20-cv-03425, filed in the United
States District Court for the District of New Jersey; (iv) Litwin
v. TD Ameritrade Holding Corporation et al., case number
2:20-cv-03569, filed in the United States District Court for the
District of New Jersey; (v) Bernstein v. TD Ameritrade Holding
Corporation et al., case number 2:20-cv-03695, filed in the United
States District Court for the District of New Jersey; (vi) Garrison
v. TD Ameritrade Holding Corporation et al., case number
1:20-cv-02850, filed in the United States District Court for the
Southern District of New York; (vii) Paine-Mantha v. TD Ameritrade
Holding Corporation et al., case number 1:20-cv-00637, filed in the
United States District Court for the District of Delaware; and
(viii) Kong v. TD Ameritrade Holding Corporation et al., case
number 2:20-cv-05970, filed in the United States District Court for
the District of New Jersey, which complaints are collectively
referred to as the federal actions. The complaints named as
defendants, the Company and members of its board of directors and,
in the case of two of the actions, Schwab. The complaints generally
alleged, among other things, that the defendants authorized the
filing of a materially incomplete and misleading registration
statement. In addition to costs and attorneys' fees, the lawsuits
sought to enjoin the vote of the Company's stockholders and the
closing of the acquisition; and in the event the transaction were
consummated, to set aside the transaction and/or obtain
rescissionary or other damages. The Company believes that the
claims asserted in the lawsuits were without merit and that that no
further disclosure was required to supplement the definitive joint
proxy statement/prospectus under applicable law. On May 27, 2020,
the Company filed a Form 8-K with the Securities and Exchange
Commission voluntarily making supplemental disclosures related to
the Merger. In light of the supplemental disclosures, the
plaintiffs in the federal actions agreed to dismiss their claims
with prejudice. As of July 14, 2020, all of the federal actions
have been voluntarily dismissed.
TD Ameritrade Holding Corporation provides securities brokerage and
related technology-based financial services to retail investors,
traders, and independent registered investment advisors (RIAs) in
the United States. The company is based in Omaha, Nebraska.
TDS ENTERPRISES: Douglas Files Suit in New York
-----------------------------------------------
A class action lawsuit has been filed against TDS Enterprises, Inc.
The case is styled as Evelyn Douglas, individually, and on Behalf
of a Class of Similarly Situated Individuals, Plaintiff v. TDS
Enterprises, Inc., d/b/a My Business Venture, a New York
Corporation, as assignee of My Business Venture, Thomas Stidiron,
an individual and John Helleis, an individual, Defendants, Case No.
1:20-cv-03622 (E.D. N.Y., Aug. 11, 2020).
The docket of the case states the nature of suit as Contract:
Franchise filed pursuant to the Diversity-Other Contract.
TDS Enterprises, Inc. manufactures and exports auto electrical
parts and accessories with wide portfolio of products and
vehicles.[BN]
The Plaintiff is represented by:
Evan M. Goldman, Esq.
A.Y. Strauss LLC
101 Eisenhower Parkway, Suite 412
Roseland, NJ 07068
Tel: (973) 287-0964
Email: egoldman@aystrauss.com
TENNESSEE: Court Dismisses Inmate Pro Se Suit Filed by Derrick
--------------------------------------------------------------
The U.S. District Court for the Middle District of Tennessee,
Nashville Division, issued a Memorandum and Order dismissing
without prejudice the case captioned DEANGELO DERRICK #325917 v.
DISTRICT ATTORNEY OFFICE, et al., Case No. 3:20-cv-00329 (M.D.
Tenn.).
Plaintiff DeAngelo Derrick, a pretrial detainee in the custody of
the Davidson County Sheriff, filed a pro se civil rights complaint
under 42 U.S.C. Section 1983 and has now filed a properly supported
application to proceed without prepaying fees ("IFP application").
The matter is before the Court for a ruling on Plaintiff's
application to proceed in forma pauperis (IFP). The complaint is
also before the Court for an initial review pursuant to the Prison
Litigation Reform Act (PLRA).
Under the PLRA, a prisoner bringing a civil action may be permitted
to file suit without prepaying the filing fee required by 28 U.S.C.
Section 1914(a). Because it appears from Plaintiff's submissions
that he lacks sufficient financial resources from which to pay the
full filing fee in advance, the Court GRANTS his motion to proceed
IFP in this matter.
The Plaintiff is still responsible for paying the full filing fee,
however, as required by Section 1915(b). The obligation to pay the
fee accrues at the time the case is filed, but the PLRA provides
prisoner-plaintiffs the opportunity to make a "down payment" of a
partial filing fee and to pay the remainder in installments.
Accordingly, Plaintiff is ASSESSED a $350 filing fee, to be paid as
outlined by the Court.
The Plaintiff sues under 42 U.S.C. Section 1983 to vindicate
alleged violations of his federal constitutional rights. The
Plaintiff alleges that responsible officials are failing or
refusing to provide a speedy trial without unnecessary delay,
affordable bond, effective counsel, and legal documents to inmates.
He makes broad allegations about general behaviors engaged in by
"The District Attorneys" and "The Court" that result in unjustified
continuances and delays and unjustified bond requirements and
revocations.
The Plaintiff sues the "City of Nashville (Local Government)," the
"District Attorney Office," and "Criminal Court Clerk," all in
their official capacities, and seeks "a judgment on grounds the
statute or policy is repugnant to due process and equal protection
under the Fourteenth Amendment to the United States Constitution
and all other and further relief the court deems proper."
District Judge Eli Richardson opines that the Plaintiff's complaint
would fail for multiple reasons, even if he properly identified and
otherwise stated a claim against the local government. The
Plaintiff's claims relate to the validity of his on-going pre-trial
detention and criminal prosecution, and he cannot obtain relief on
such claims under Section 1983 until he has prevailed on those
claims in state proceedings or through a federal writ of habeas
corpus, citing Heck v. Humphrey, 512 U.S. 477, 481 (1994).
Judge Richardson notes that the Plaintiff does not allege any
specific facts about his own proceedings at all. He alleges broad,
systemic misdeeds, but he does not say when he was detained,
whether or why his prosecution has been continued, when any
continuances happened, whether or why he was denied bond or had
bond revoked, or whether or how his prosecution is influenced by
bias or prejudice. He does not say whether an attorney has been
appointed for him or whether or how any attorney has been
ineffective in representing him. And he does not identify any
documents that officials have failed to provide or deliver to him.
In short, he does not allege facts that would support any finding
that his personal constitutional rights have been violated as he
claims. That reason alone warrants dismissal of his lawsuit, Judge
Richardson explains.
Accordingly, the Court rules that the action is DISMISSED without
prejudice for failure to state a claim upon which relief can be
granted. Any appeal from this Order to the United States Court of
Appeals would not be in good faith as required by 28 U.S.C. Section
1915(a)(3). The Plaintiff may, however, file with this Court a Rule
59 motion, a motion to amend the complaint, and a proposed amended
complaint.
The Clerk of Court is DIRECTED to mail the Plaintiff a blank
"Petition for a Writ of Habeas Corpus Under 28 U.S.C. Section 2241"
(Form Number AO 242) for the Plaintiff's use in seeking relief on
his speedy trial claim if he chooses to do so. The Plaintiff is
reminded, however, that he must exhaust his available remedies in
state court before he would be entitled to review in this Court;
exhaustion of speedy trial claims is required before bringing a
claim under 28 U.S.C. Section 2241 just as it is required before
bringing a claim under Section 1983. The Court expresses no opinion
about the merits of Plaintiff's speedy trial claim.
A full-text copy of the District Court's May 28, 2020 Memorandum
and Order is available at https://tinyurl.com/yczj684t from
Leagle.com.
THERAPY PLLC: Estrada Files FLSA Suit in New York
-------------------------------------------------
A class action lawsuit has been filed against Therapy PLLC. The
case is styled as Policarpo Moreno Estrada and Policarpo Moreno
Estrada, on behalf of others similarly situated, Plaintiffs v.
Therapy PLLC doing business as: therapy, Tom Johnson and Kash Amin,
Defendants, Case No. 1:20-cv-06125 (S.D., N.Y., Aug. 5, 2020).
The docket of the case states the nature of suit as Labor: Fair
Standards filed pursuant to the Fair Labor Standards Act.
Therapy PLLC offers mental health services in Charlotte, North
Carolina.[BN]
The Plaintiffs are represented by:
Michael Antonio Faillace, Esq.
Michael Faillace & Associates, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
Fax: (212) 317-1620
Email: michael@faillacelaw.com
TREND LAB LLC: Monegro Alleges Violation under ADA
--------------------------------------------------
Trend Lab, LLC is facing a class action lawsuit filed pursuant to
the Americans with Disabilities Act. The case is styled as Frankie
Monegro, on behalf of himself and all others similarly situated,
Plaintiff v. Trend Lab, LLC, Defendant, Case No. 1:20-cv-06113
(S.D. N.Y., Aug. 5, 2020).
Trend Lab, LLC, is a privately held, business based in Minnesota
oeffring sophisticated, trend-right nursery decor that can flow
with home decor.[BN]
The Plaintiff is represented by:
David Paul Force, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: dforce@steinsakslegal.com
U.S. OIL FUND: Palacios Sues Over Incomplete, Misleading Reports
----------------------------------------------------------------
DANNY PALACIOS, Individually and on Behalf of All Others Similarly
Situated, Plaintiff, v. UNITED STATES OIL FUND, LP, UNITED STATES
COMMODITY FUNDS LLC, JOHN P. LOVE, and STUART P. CRUMBAUGH,
Defendants, Case No. 1:20-cv-06442 (S.D.N.Y., August 13, 2020) is a
securities class action brought by the Plaintiff on behalf of all
persons who purchased USO securities during the period from
February 25, 2020 to April 28, 2020, inclusive, seeking to pursue
remedies under the Securities Exchange Act of 1934.
USO is an exchange traded fund ("ETF") purportedly designed to
track the daily changes in percentage terms of the spot price of
West Texas Intermediate ("WTI") light, sweet crude oil delivered to
Cushing, Oklahoma. USO stated that it would achieve its investment
objective by investing substantially all of its portfolio assets in
the near month WTI futures contract. However, unbeknownst to
investors, extraordinary market conditions in early 2020 made USO's
purported investment objective and strategy unfeasible. Oil demand
fell precipitously as governments imposed lockdowns and businesses
halted operations in response to the coronavirus pandemic. In
addition, in early March 2020, Saudi Arabia and Russia launched an
oil price war, increasing production and slashing export prices in
a bid to increase the global market share of their domestic
petrochemical enterprises.
According to the complaint, Defendants -- as the creators, issuers
and operators of the largest oil-related ETF in existence and
active market-making players in the complex commodities and futures
markets that determined the Fund's performance -- possessed inside
knowledge about the negative consequences to the Fund as a result
of converging adverse events. However, rather than disclose the
known impacts and risks to the Fund as a result of these
exceptional threats, Defendants instead conducted massive offerings
of USO shares, ultimately selling billions of dollars' worth of USO
shares to the market. Although the offering increased the fees
payable to defendants, it also exacerbated the undisclosed risks to
the Fund by magnifying trading inefficiencies and causing USO to
approach position and accountability limits as a result of the
Fund's massive positions in the WTI futures market.
In the days that followed, USO quickly deteriorated. Ultimately,
the Fund suffered billions of dollars in losses and was forced to
abandon its investment strategy. Through a series of rapid-fire
investment overhauls, USO was forced to transform from the passive
ETF designed to track spot oil prices that Defendants had pitched
to investors to an almost unrecognizable actively managed fund
struggling to avoid a total implosion. In April and May 2020,
Defendants belatedly acknowledged the extreme threats and adverse
impacts that the Fund had been experiencing at the time of the
earlier offerings, but which they had failed to disclose to
investors.
The Individual Defendants made, or caused to be made, false
statements that artificially inflated the prices of USO securities
during the Class Period. The Individual Defendants, because of
their positions with the Company, possessed the power and authority
to control the contents of USO's quarterly reports, press releases,
and presentations to securities analysts, money and portfolio
managers, and institutional investors, i.e., the market. They were
provided with copies of the Company's reports and press releases
alleged to be misleading prior to or shortly after their issuance
and had the ability and opportunity to prevent their issuance or
cause them to be corrected. Because of their positions with the
Company and their access to material non-public information
available to them but not to the public, the Individual Defendants
knew that adverse facts had not been disclosed to and were being
concealed from the public and that the positive representations
being made were then materially false and misleading.
United States Oil Fund, LP is a commodity pool operator that
provides investment exposure to oil markets.
United States Commodity Funds LLC is the sponsor and general and
managing partner for the Fund.[BN]
The Plaintiff is represented by:
Jack G. Fruchter, Esq.
ABRAHAM, FRUCHTER & TWERSKY, LLP
One Penn Plaza, Suite 2805
New York, NY 10119
Telephone: (212) 279-5050
Facsimile: (212) 279-3655
E-mail: JFruchter@aftlaw.com
UNIV. OF DELAWARE: Ninivaggi et al. Seek Tuition Fee Refund
------------------------------------------------------------
PENNY NINIVAGGI, MICHAEL NINIVAGGI, TODD MICKEY, JAKE MICKEY, JAMES
NIGRELLI and CAILIN NIGRELLI, individually and on behalf of all
others similarly situated, Plaintiffs, v. UNIVERSITY OF DELAWARE,
Defendant, Case No. N20C-08-121 DCS (Del. Super., August 14, 2020)
is a class action lawsuit on behalf of all students and parents who
paid tuition and fees for the Spring 2020 academic semester at
University of Delaware and who, because of Defendant's response to
the Novel Coronavirus Disease 2019 ("COVID-19") pandemic, lost the
benefit of the education for which they paid, and/or the services
for which their fees were paid, without having their tuition and
fees refunded to them.
On March 11, Defendant announced that it was suspending classes for
the next two days in the run up to spring break and that the school
would transition all instruction to online learning for the rest of
the semester. Online learning was initially planned to begin on
March 23, 2020, but was later pushed back to March 30, 2020.
As a result of the closure of Defendant's facilities, Defendant did
not deliver the educational services, facilities, access and/or
opportunities that Plaintiffs and the putative class contracted and
paid for. The online classes that Defendant provided were not even
close to being equivalent to the in-person classes that Plaintiffs
and the putative class members contracted and paid for. As a
result, students have been deprived of the opportunity for
collaborative learning and in-person dialogue, feedback, and
critique.
Plaintiffs and the putative class are therefore entitled to a
refund of tuition and fees for in-person educational services,
facilities, access and/or opportunities that Defendant did not
provide. Even if Defendant did not have a choice in cancelling
in-person classes, it nevertheless improperly retained funds for
services it did not provide.
The University of Delaware is a private-public research university
located in Newark, Delaware.[BN]
The Plaintiffs are represented by:
Robert J. Kriner, Jr., Esq.
Scott M. Tucker, Esq.
CHIMICLES SCHWARTZ KRINER & DONALDSON-SMITH LLP
2711 Centerville Road, Suite 201
Wilmington, DE 19808
Telephone: (302) 656-2500
- and -
Joshua D. Arisohn, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (646) 837-7150
Facsimile: (212) 989-9163
E-mail: jarisohn@bursor.com
- and -
Sarah N. Westcot, Esq.
BURSOR & FISHER, P.A.
2665 S. Bayshore Drive, Suite 220
Miami, FL 33133
Telephone: (305) 330-5512
Facsimile: (305) 676-9006
E-mail: swestcot@bursor.com
VALUECAP LENDERS: Naiman Sues Over Unsolicited Phone Calls
----------------------------------------------------------
SIDNEY NAIMAN, individually and on behalf of all others similarly
situated, Plaintiff v. VALUECAP LENDERS LLC and DOES 1 through 10,
inclusive, Defendants, Case No. 2:20-cv-01603-JAM-DMC (E.D. Cal.,
August 11, 2020) is a class action complaint brought against
Defendants for their alleged negligent and willful violations of
the Telephone Consumer Protection Act.
According to the complaint, Defendant placed multiple calls to
Plaintiff's cellular telephone number ending in -5505 beginning in
or around April 2019 by using an "automatic telephone dialing
system" in an attempt to solicit Plaintiff to purchase its services
even without Plaintiff's prior express written consent to receive
calls from Defendants.
Moreover, Plaintiff's cellular telephone number was registered on
the Do-Not-Call Registry for at least 30 days prior to Defendant's
calls.
ValueCap Lenders LLC specializes in providing small business loans
and providing working capital loans. Your business is booming.
[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: 323-306-4234
Fax: 866-633-0228
Emails: tfriedman@toddflaw.com
abacon@toddflaw.com
VIKING RANGE: Monegro Asserts Breach of ADA
-------------------------------------------
Viking Range, LLC is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Frankie Monegro, on behalf of himself and all others similarly
situated, Plaintiff v. Viking Range, LLC, Defendant, Case No.
1:20-cv-06119 (S.D. N.Y., Aug. 5, 2020).
Viking Range Corporation is an American appliance company that
manufactures kitchen appliances for residential and commercial use.
Viking originated the "professional" segment of kitchen appliances
with its introduction of the first professional-grade range for
home use in 1987.[BN]
The Plaintiff is represented by:
David Paul Force, Esq.
Stein Saks, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Email: dforce@steinsakslegal.com
VOLVO CARS: Court Dates Set in Defective Sunroof Class Action
-------------------------------------------------------------
Emmariah Holcomb, writing for glassBYTEs.com, reports that new
stipulations and court dates have been set for an ongoing class
action lawsuit centered on alleged defective sunroofs for select
Volvo models.
The class action suit was filed on behalf of Plaintiffs Joanne
Neale, Keri Hay, Kelly McGary, Svein A. Berg, Gregory P. Burns,
David Taft, Jeffery Kruger, and Karen Collopy, and the defendants
Volvo Cars of North America LLC and Volvo Car Corporation.
In mid-June, the Court directed the plaintiffs to serve (but not
file) their renewed motion for class certification by July 15,
2020. After the renewed motion was served both parties were to meet
and confer.
According to the document, both parties have agreed to the
following:
* Plaintiff's expert, Charles Lawson, shall provide the
discoverable portion of his expert file to Volvo's counsel not
later than July 31, 2020 and the deposition shall take place not
later than August 30, 2020;
* Volvo shall serve any expert reports responding to Lawson's
opinions not later than September 10, 2020 and experts depose by
September 30;
* Volvo shall serve (but not file) its opposition on October 16,
2020; and
* Plaintiffs shall file their renewed motion for class
certification, Volvo's opposition thereto, Plaintiffs' reply, and
any supporting papers on October 30, 2020.
Case Background
The lawsuit, which was originally filed in 2010 by Joanne Neale,
where she alleged Volvo was responsible for defective sunroofs that
caused water leaks in certain models. A new deposition was then
added to the class action suit in 2018 by Kelly McGary, who claimed
she has not experienced any issues with its sunroof even after
leaving her vehicle parked outside, exposing it to various weather
conditions.
When questioned about ever noticing any leaks herself, by her
mechanic or by her staff members who also drive the vehicle, she
answered no.
Plaintiffs want a federal judge to certify their proposed class in
a new motion. They claim Volvo sold the defective sunroofs that led
to interior damage to its vehicles. According to court documents,
some Volvo owners noticed excess water inside of their vehicles
after their limited warranty period was up.
In April 2020, Volvo defense attorneys filed a letter to the
presiding judge urging the court to dismiss subpoenas, filed by the
plaintiffs, requesting additional information from the Department
of Motor Vehicles (DMV) in an ongoing leaking sunroof class action
lawsuit. [GN]
WESTERN UNION: Class Suit by Argentine Consumer Group Stayed
------------------------------------------------------------
The Western Union Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that the class action suit
initiated by Consumidores Financieros Asociacion Civil para su
Defensa in Argentina has been stayed.
In October 2015, Consumidores Financieros Asociacion Civil para su
Defensa, an Argentinian consumer association, filed a purported
class action lawsuit in Argentina's National Commercial Court No.
19 against the Company's subsidiary Western Union Financial
Services Argentina S.R.L. ("WUFSA").
The lawsuit alleges, among other things, that WUFSA's fees for
money transfers sent from Argentina are excessive and that WUFSA
does not provide consumers with adequate information about foreign
exchange rates.
The plaintiff is seeking, among other things, an order requiring
WUFSA to reimburse consumers for the fees they paid and the foreign
exchange revenue associated with money transfers sent from
Argentina, plus punitive damages. The complaint does not specify a
monetary value of the claim or a time period.
In November 2015, the Court declared the complaint formally
admissible as a class action. The notice of claim was served on
WUFSA in May 2016, and in June 2016 WUFSA filed a response to the
claim and moved to dismiss it on statute of limitations and
standing grounds.
In April 2017, the Court deferred ruling on the motion until later
in the proceedings. The process for notifying potential class
members has been completed and the case proceeded to the
evidentiary stage.
On June 4, 2020, the case was stayed because the consumer
association that filed the lawsuit no longer had the registration
needed to assert its claims on behalf of the alleged class. The
case will be stayed until (i) the Attorney-General instructs the
Prosecutor to continue to litigate the claims on behalf of the
plaintiff (during the time the registration of Consumidores
Financieros before the Secretary of Commerce remains suspended); or
(ii) the parties report to the Court that the plaintiff recovered
its legal capacity.
Western Union said, "Due to the stage of this matter, the Company
is unable to predict the outcome or the possible loss or range of
loss, if any, associated with this matter. WUFSA intends to defend
itself vigorously."
The Western Union Company provides money movement and payment
services worldwide. The company operates in two segments,
Consumer-to-Consumer and Business Solutions. It serves primarily
through a network of agents. The Western Union Company was
incorporated in 2006 and is headquartered in Denver, Colorado.
WESTERN UNION: Frazier Class Suit Still Stayed Pending Arbitration
------------------------------------------------------------------
The Western Union Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that the class action suit
entitled, Frazier et al. v. The Western Union Company et al.,
remains stayed pending individual arbitrations with the named
plaintiffs.
On April 26, 2018, the Company, its Western Union Financial
Services, Inc. (WUFSI) subsidiary, its President and Chief
Executive Officer, and various "Doe Defendants" (purportedly
including Western Union officers, directors, and agents) were named
as defendants in a purported class action lawsuit asserting claims
for alleged violations of civil Racketeer Influenced and Corrupt
Organizations Act and the Colorado Organized Crime Act, civil
theft, negligence, unjust enrichment, and conversion under the
caption Frazier et al. v. The Western Union Company et al., Civil
Action No. 1:18-cv-00998-KLM (D. Colo.).
The complaint alleges that, during the purported class period of
January 1, 2004 to the present, and based largely on the admissions
and allegations relating to the Deferred Prosecution Agreement
(DPA), the United States Federal Trade Commission (FTC) Consent
Order, and the New York State Department of Financial Services
(NYDFS) Consent Order, the defendants engaged in a scheme to
defraud customers through Western Union's money transfer system.
The plaintiffs filed an amended complaint on July 17, 2018. The
amended complaint is similar to the original complaint, although it
adds additional named plaintiffs and additional counts, including
claims on behalf of putative California, Florida, Georgia,
Illinois, and New Jersey subclasses for alleged violations of the
California Unfair Competition Law, the Florida Deceptive and Unfair
Trade Practices Act, the Georgia Fair Business Practices Act, the
Illinois Consumer Fraud and Deceptive Business Practices Act, and
the New Jersey Consumer Fraud Act.
On August 28, 2018, the Company and the other defendants moved to
stay the action in favor of individual arbitrations with the named
plaintiffs, which defendants contend are contractually required. On
March 27, 2019, the Court granted that motion and stayed the action
pending individual arbitrations with the named plaintiffs.
Western Union said, "To date, no such individual arbitration
requests have been filed. Due to the stage of the matter, the
Company is unable to predict the outcome, or the possible loss or
range of loss, if any, which could be associated with it. The
Company and the other defendants intend to vigorously defend
themselves in this matter."
No further updates were provided in the Company's SEC report.
The Western Union Company provides money movement and payment
services worldwide. The company operates in two segments,
Consumer-to-Consumer and Business Solutions. It serves primarily
through a network of agents. The Western Union Company was
incorporated in 2006 and is headquartered in Denver, Colorado.
WESTERN UNION: Smallen Class Suit Concluded
-------------------------------------------
The Western Union Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on August 5, 2020, for the
quarterly period ended June 30, 2020, that the class action suit
entitled, Lawrence Henry Smallen and Laura Anne Smallen Revocable
Living Trust et al. v. The Western Union Company et al., Civil
Action No. 1:17-cv-00474-KLM, has been concluded.
On February 22, 2017, the Company, its President and Chief
Executive Officer, its Chief Financial Officer, and a former
executive officer of the Company were named as defendants in two
purported class action lawsuits, both of which asserted claims
under section 10(b) of the Exchange Act and Securities and Exchange
Commission rule 10b-5 and section 20(a) of the Exchange Act.
On May 3, 2017, the two cases were consolidated by the United
States District Court for the District of Colorado under the
caption Lawrence Henry Smallen and Laura Anne Smallen Revocable
Living Trust et al. v. The Western Union Company et al., Civil
Action No. 1:17-cv-00474-KLM (D. Colo.).
On September 6, 2017, the Court appointed Lawrence Henry Smallen
and Laura Anne Smallen Revocable Living Trust as the lead
plaintiff. On November 6, 2017, the plaintiffs filed a consolidated
amended complaint ("Amended Complaint") that, among other things,
added two other former executive officers as defendants, one of
whom subsequently was voluntarily dismissed by the plaintiffs.
The Amended Complaint asserts claims under section 10(b) of the
Exchange Act and Securities and Exchange Commission rule 10b-5 and
section 20(a) of the Exchange Act, and alleges that, during the
purported class period of February 24, 2012, through May 2, 2017,
the defendants made false or misleading statements or failed to
disclose purported adverse material facts regarding, among other
things, the Company's compliance with anti-money laundering ("AML")
and anti-fraud regulations, the status and likely outcome of
certain governmental investigations targeting the Company, the
reasons behind the Company's decisions to make certain regulatory
enhancements, and the Company's premium pricing.
The defendants filed a motion to dismiss the complaint on January
16, 2018, and on March 27, 2019, the Court dismissed the action in
its entirety with prejudice and entered final judgment in the
defendants' favor on March 28, 2019.
On April 26, 2019, plaintiffs filed a notice of appeal to the
United States Court of Appeals for the Tenth Circuit. On June 24,
2019, plaintiffs filed their opening brief on appeal and oral
argument was held on January 22, 2020. Plaintiffs did not appeal
the dismissal of one former executive officer and only appealed the
district court's conclusion that the remaining defendants did not
make statements concerning the Company’s compliance programs with
the requisite intent.
On February 25, 2020, the United States Court of Appeals for the
Tenth Circuit affirmed the dismissal of the case.
Plaintiff's deadline to file a petition for a writ of certiorari
from the Supreme Court of the United States was July 27, 2020.
Plaintiff did not file such a petition, and the case has now
concluded.
The Western Union Company provides money movement and payment
services worldwide. The company operates in two segments,
Consumer-to-Consumer and Business Solutions. It serves primarily
through a network of agents. The Western Union Company was
incorporated in 2006 and is headquartered in Denver, Colorado.
WYNN RESORTS: To Seek Dismissal of Ferris Securities Suit
---------------------------------------------------------
Wynn Resorts Limited said in its Form 10-Q Report filed with the
Securities and Exchange Commission on August 6, 2020, for the
quarterly period ended June 30, 2020, that the Company is now
preparing a motion to dismiss the amended complaint filed in the
putative securities class action suit initiated by John V. Feris
and Joann M. Ferris.
On February 20, 2018, a putative securities class action was filed
against the Company and certain current and former officers of the
Company in the United States District Court, Southern District of
New York (which was subsequently transferred to the United States
District Court, District of Nevada) by John V. Feris and Joann M.
Ferris on behalf of all persons who purchased the Company's common
stock between February 28, 2014 and January 25, 2018.
The complaint alleges, among other things, certain violations of
federal securities laws and seeks to recover unspecified damages as
well as attorneys' fees, costs and related expenses for the
plaintiffs.
On April 15, 2019, the Company filed a motion to dismiss, which the
court granted on May 27, 2020, with leave to amend.
On July 1, 2020, the plaintiffs filed an amended complaint.
The Company is preparing a motion to dismiss the amended
complaint.
The defendants in these actions will vigorously defend against the
claims pleaded against them. These actions are in preliminary
stages and management has determined that based on proceedings to
date, it is currently unable to determine the probability of the
outcome of these actions or the range of reasonably possible loss,
if any.
Wynn Resorts Limited, owns and operates destination casino resorts.
The company was founded in 2002 and is based in Las Vegas, Nevada.
[*] "Phase II" of COVID-19 Class Actions Looms
----------------------------------------------
Jaclyn Metzinger, Esq., James B. Saylor, Esq., & Lauren Margolies,
Esq., of Kelley Drye, disclosed that as previously reported, "Phase
I" of class action filings relating to the COVID-19 pandemic has
become a significant contagion of its own with more than 500 cases
being filed since March challenging refund policies, school
closures, event cancellations, and marketing and pricing practices.
As the economy gradually reopens, "Phase II"--how companies
respond to these cases--is just beginning. Not surprisingly,
defendants are fighting hard and early to defeat these claims, with
many opting to file motions to dismiss rather than answering the
complaint and entering into lengthy and expensive discovery.
Early Action in Cases Against Public-Facing Businesses
Public-facing businesses -- such those in the retail, travel and
hospitality industries -- have been the first to re-open and are
currently navigating a patchwork of state guidelines on how to do
so safely. Compounding this burden, these same companies are
facing a wave of lawsuits by customers and employees alleging
negligence, breach of contract, and unfair business practices
during the pandemic.
These industries are not new to class action litigation and many
companies have included arbitration clauses and class arbitration
waivers in their consumer contracts. These defendants have, not
surprisingly, moved to compel arbitration, and plaintiffs have
responded with unique (but likely ineffective) allegations of
unconscionability, fraud and duress to try to stay in court. For
example, in a case against Amazon, the plaintiffs alleged that the
arbitration agreement was unconscionable because they were under
duress during the pandemic and were forced to purchase products
from Amazon. Amazon's response was based on the black-letter
principle that unconscionability is measured at the time of
contracting, and not at the time of the challenged conduct.
Other companies have focused on substance, arguing that they
complied with their contractual obligations and that their
customers have not suffered damages. For example, in the case of
recurring monthly payments for fitness club memberships, defendants
have argued that their membership agreements do not mandate refunds
for temporary closures, and therefore plaintiffs who filed suit
within days or weeks of the initial closure did so too quickly.
An Uncertain Road Ahead for Failure to Protect Claims
Not surprisingly, courts that have ruled on early motions to
dismiss have come to different conclusions. For example, an
Illinois state court denied a motion to dismiss by McDonald's in a
negligence suit brought by employees who claimed that the company
did not provide sufficient training and personal protective
equipment to protect them from coronavirus, and entered a
preliminary injunction mandating social distancing training and
mask-wearing policies. In contrast, a Missouri federal court
dismissed similar claims by employees of a meat processing plant
pursuant to the primary jurisdiction doctrine, deferring to the
Occupational Safety and Health Administration ("OSHA"). These
inconsistent results will likely lead to even more filings, as many
plaintiffs will use this uncertainty as leverage to try to obtain
favorable settlements.
Cruise passengers have similarly alleged that the cruise companies
knew or should have known that coronavirus outbreaks were likely,
and that they failed to take sufficient action even after
infections were confirmed on board. The first such motion to
dismiss challenging these was decided – and granted – on July
14, 2020, disposing of a series of what a California court called
"Fear Cases" against Princess Cruise Lines. These plaintiffs did
not actually contract coronavirus during their March 2020 cruise,
but sought to recover damages for negligent infliction of emotional
distress arising out of their alleged fear of contracting the
illness. Applying U.S. maritime law, the court found that the
plaintiffs failed to satisfy the necessary "Zone of Danger" test
because they did not sufficiently allege that they were in
immediate risk of physical harm. This decision could provide
support to public-facing businesses on land.
To help alleviate the uncertainty facing businesses as they reopen,
state and local governments have begun to enact liability
protections for businesses related to the coronavirus pandemic.
But, these measures can vary both within and across states, causing
business to adopt strict nationwide policies to protect their
employees and customers while also insulating themselves from
liability. For example, a number of national retailers (such as
Krogers, Target, and Best Buy) have started requiring customers to
wear masks at all of their stores, even where local ordinances do
not require them.
But even a seemingly-conservative approach carries some risk. In
Pennsylvania, a number of individuals sued retailer Giant Eagle for
complying with a Pennsylvania Secretary of Health Order requiring
customers to wear face coverings in retail stores. The complaint
and subsequent motion for a preliminary injunction alleges that the
policy violates both the Americans with Disabilities Act and the
Pennsylvania order itself, which exempts individuals who are unable
to wear a mask due to a medical condition. Giant Eagle's response
outlined the numerous efforts the retailer took to accommodate
those with disabilities (including enhanced curbside service, home
delivery and on-the-spot personal shopping) and emphasized the
public health justification for the policy. Giant Eagle also
pointed to social media evidence suggesting that one lead plaintiff
did not suffer from a disability at all, and that his aversion to
wearing a mask was political rather than medical. As more
businesses adopt a uniform mask requirement, and as the issue
becomes more politicized, we expect these types of claim to
proliferate.
Given the uncertainty that lies ahead, companies should adopt and
enforce reasonable and appropriate policies, and carefully document
any incidents that could lead to claims that they failed to protect
(or failed to accommodate) their customers and employees.
Companies who take these steps will be better-positioned to prevail
on the merits (or to reach an early settlement if desired).
The Price of Education
With the fall semester looming, many educational institutions are
still reeling from the wave of class actions challenging
universities' decisions to close on-campus activities last spring.
While student plaintiffs have an understandable point that
online-only classes do not compare to the experience of being on
campus, universities have moved to dismiss these claims on the
grounds that there is often no contractual requirement guaranteeing
the "college experience." Force majeure clauses and contractual
defenses of impossibility or impracticability often provide
additional support for defendants' arguments that they are
substantially performing their obligations by providing virtual
learning during the pandemic. Public universities have also relied
on sovereign immunity and other procedural hurdles that plaintiffs
must follow when suing state agencies.
At the same time, schools are struggling to define what classes
will look like in the Fall, balancing the risk of potential spread
of infection with the risk of additional litigation challenging
remote learning. Schools are also facing new potential theories of
liability—how to treat students (or teachers) who do not wish to
return to campus.
Education-related class actions that survive the pleading stage
face an interesting road to class certification. Students take
different courses and utilize the resources on campus to different
degrees. Students may place a different value on "in-person
classes," and some students may even prefer an online learning
experience. Thus, satisfying the predominance requirement of Rule
23 will be particularly challenging. Moreover, constructing a
class-wide damages model that fits plaintiffs' theory of liability
will be nearly impossible because it raises ambiguous, and perhaps
philosophical, questions about the true "value" of education.
All of these COVID-related class actions raise fascinating and
novel legal questions that courts will have to deal with in the
not-so-distant future. We will be following these cases closely
and continue to report on significant developments. [GN]
*********
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 ***