/raid1/www/Hosts/bankrupt/CAR_Public/201026.mbx
C L A S S A C T I O N R E P O R T E R
Monday, October 26, 2020, Vol. 22, No. 214
Headlines
3M COMPANY: Keaton Alleges Injury From Exposure to Toxic AFFF
3M COMPANY: Marti Alleges Injury From Exposure to Toxic AFFF
3M COMPANY: Ruthenberg Alleges Injury From Exposure to Toxic AFFF
7-ELEVEN INC: Haitayan Suit Seeks to Certify Rule 23 Class
ALTERYX INC: Faces Lalgudi Securities Suit Over Stock Price Drop
AMAZON.COM INC: 1st Cir. Upholds Arbitration Denial in Waithaka
AMERICAN LIMOUSINE: Settles Limo Drivers Class Action for $1.6MM
ARBITERSPORTS LLC: Faces McCluskey Class Suit Over Data Breach
BANK OF AMERICA: Class Settement in Contant Suit Gets Prelim. OK
BANK OF AMERICA: Court Denies Motion to Remand Douglas Suit
BEST-LINE SHADES: Valenzuela Files 2nd Amended Class Complaint
BP EXPLORATION: Obtains Summary Judgment in Scarbrough BELO Suit
C.L. KNOX: Cal. App. Affirms Summary Judgment in Thompson Suit
CALIFIA FARMS: Final Judgment Entered in Cicciarella Class Suit
CAPITAL ONE: Knox Files Placeholder Class Certification Bid
CHUCK'S FISH: Refuses to Pay Minimum Wages, Guest Claims
COLGATE-PALMOLIVE CO: Summary Judgment in McCutcheon Partly Granted
COMCAST CORP: Can Compel Arbitration in Baker Suit
CONNER LOGISTICS: Court Grants Prelim. OK to Class Deal in Figueroa
CONOPCO INC: Court Dismisses Schulte's AntiPerspirant Class Suit
CONOPCO INC: Schulte AntiPerspirant Suit Denied Remand to State Ct.
CREDIT MANAGEMENT: Pederson Files Placeholder Class Status Bid
D&A SERVICES: Pederson Files Placeholder Class Certification Bid
DARMOUTH COLLEGE: $14MM Class Deal in Rapuano Gets Final Approval
DCM SERVICES: Voeks Files Placeholder Class Certification Bid
DELTA AIR: Ninth Circuit Affirms Ruling in McGarry Class Suit
DEUTSCHE BANK: Five Deals in GSE Bonds Antitrust Suit Gets Final OK
ECO SCIENCE: Class Settlement in Bell Suit Gets Prelim. Approval
ENERGIZER HOLDINGS: Court Enters Judgment in Manzo Class Suit
ENHANCED RECOVERY: Gordon Files Placeholder Class Status Bid
EXTENDICARE WEST: Thomson Rogers Files Class Action Proceeding
FAITH TECHNOLOGIES: Breached ERISA Fiduciary Duties, Laabs Claims
FASTLY INC: Jakubowitz Law Reminds of Oct. 26 Motion Deadline
FASTLY INC: Levi & Korsinsky Reminds of October 26 Deadline
FIAT CHRYSLER: Dodge SRT Demon Owners File Class Action
FIRST INTERSTATE: Hunter RICO Suit May Proceed in Forma Pauperis
FSM ZA: Patzfahl Seeks Authorization to Send Notice to Co-Workers
G4S SECURE: Labor Class Action Pending in California
GHIRARDELLI CHOCOLATE: Counts 1-3 in Cheslow Dismissed w/ Prejudice
GOHEALTH INC: Wolf Haldenstein Files Securities Class Action
GOL LINHAS: Zhang Investor Reminds of Class Action Filing
GSK CONSUMER: Seeks Dismissal of Chapstick Class Action
GURSTEL LAW: Jabler Files Placeholder Class Certification Bid
HARLEY-DAVIDSON INC: 9th Cir. Flips Remand of Greene to State Court
HEALTH EXPRESS: Judgment in Arafa Flipped & Affirmed in Colon's
HUNAN MANOR: Chen Suit Seeks Class Certification
ILLINOIS HIGH: Judge Denies TRO for Parents of Student-Athletes
INTERNATIONAL PAPER: Court Narrows Claims in Ashworth Class Suit
J. JACOBO: Bid to Reconsider Rest Break Class Period End Date Nixed
KAISER FOUNDATION: Schmitt Dismissal Upheld With Leave to Amend
KEVITA KOMBUCHA: Deadline for Claims in Class Deal Set for Jan. 14
KEYSTONE RV: Court Denies Class Certification in Cole Suit
KIMBERLY-CLARK CORP: 9th Cir. Vacates Judgment in Bahamas Suit
LANCER FOOD: Gardner Suit Seeks Conditional Class Certification
LLOYD'S UNDERWRITERS: Guardian Law Group Launches Class Action
LOWE'S COS: Can Compel 94 Opt-Ins in Danford FLSA Suit to Arbitrate
LYFT INC: Faces Shareholder Derivative Action
MARICOPA COUNTY, AZ: Partly Compelled to Show TASC's MDPP Files
MARRIOTT INT'L: Faces Class Action Over GDR Non-Compliance
MCDONALD'S: RAFFWU Joins Shine Lawyers to Investigate Class Suit
MDL 2472: $21MM in EPP Counsel Fees Recommended in Loestrin 24 Suit
MDL 2472: $39MM in DPP Counsel Fees Recommended in Loestrin 24 Suit
MDL 2752: $117.5MM Deal in Yahoo Security Breach Suit Has Final OK
MEDLEY OPPORTUNITY: 3rd Cir. Upholds Arbitration Denial in Williams
MGM RESORTS: Judge Accepts $800MM Vegas Shooting Settlement
MOHAWK COUNCIL: Faces Breach of Fiduciary Duty Class Action
MOUNTAIRE FARMS: Court Denies Interlocutory Appeal in Cuppels Suit
MUSHIE & CO: Website not Accessible to Blind People, Romero Says
NANO-X IMAGING: Kehoe Law Reminds of Nov. 16 Motion Deadline
NEW DIRECTIONS: Utilization Manager Class Conditionally Certified
NEW YORK: Court Narrows Claims in Knight Prisoners Suit
NEW YORK: NY Transit Face Class Action From Violating Riders
NEXTEP FUNDING: Class Settlement in Danger Suit Gets Prelim. OK
NINTENDO: CSK&D Requests Videos of Joy-Con Drift Experience
NORTHEASTERN UNIVERSITY: Court Junks Gallo Suit for Tuition Refund
NPAS SOLUTIONS: 11th Cir. Rejects $6,000 Plaintiff Award in Johnson
NUSRET NEW YORK: $300,000 Settlement in Fteja Suit Gets Final OK
ODONATE THERAPEUTICS: Levi & Korsinsky Reminds of Oct. 26 Deadline
OMEGA SPORTS: Website not Accessible to Blind, Angeles Says
ONESOURCE EHS: Powell Seeks Conditional Class Certification
ORMAT TECHNOLOGIES: Fairness Hearing in Class Suit Set for Jan. 11
ORRSTOWN FINANCIAL: Court Certifies Interlocutory Appeal in SEPTA
PACIFIC POWER: Faces Class Action Over Santiam Canyon Wildfires
PEABODY ENERGY: Howard Smith Alerts of Securities Class Action
PENRICH INVESTMENT: Adina Thorn Mulls Class Action Amid Probe
PINTEC TECHNOLOGY: Bragar Eagel Alerts of Class Action Filing
PINTEC TECHNOLOGY: Gross Law Alerts of Class Action Filing
PINTEC TECHNOLOGY: Rosen Law Alerts of Class Action Filing
PIVOTAL SOFTWARE: Consolidated Amended Securities Suit Dismissed
PNC FINANCIAL: Breached Fiduciary Duties, Johnson & Demps Claim
PORTLAND, OR: 2nd Amended Complaint Filed in Index Newspapers Suit
PROGENITY INC: Robbins Geller Reminds of Oct. 27 Motion Deadline
PROGRESSIVE SELECT: Bid for Class Certification Denied as Moot
PURDUE PHARMA: Manitoba to Join Opioid Class Action
PWC: Faces Class Action Over Axsesstoday Accounting Work
QUDIAN INC: Bid to Reconsider Securities Claims Dismissal Denied
SAFEGUARD PROPERTIES: Dismissal of James CPA Suit Partly Affirmed
SARASOTA COUNTY, FL: Class in Abelson Suit Conditionally Certified
SENTRY CREDIT: Fondren Files Placeholder Class Certification Bid
ST. LOUIS, MO: Compelled to Produce Remaining Docs in Cody Suit
STAR CAREER: Class Certification Denial in Polanco Suit Upheld
STATE FARM: Certification of Ky. Homeowners Class in Hicks Upheld
TACTILE SYSTEMS: Hagens Berman Reminds of Nov. 30 Motion Deadline
TEXAS: Court Awards $12.45 Million in Counsel Fees in M.D. Suit
U.S. BANK: Faces Hood Class Suit Over Data Breach
U.S. SPECIALTY: Court Stays Discovery in Egg and I Class Suit
UBER TECH: Can Partly Compel Arbitration in Nicholas Wage Suit
UNCA: Student's Class Action Seeks Tuition Refund
UNITED STATES: Court Certifies Class in PPM Suit vs. HHS
UNITED STATES: Dismissal of Day RICO Suit Recommended
UNITEDHEALTHCARE SERVICES: Samson Suit Stayed Pending Matlock Case
US DEFENSE DEPT: Court Denies Bid to Certify Class in Hobson Suit
USF REDDAWAY: Stipulated Protective Order in Rivera Suit Filed
VIEGA LLC: Approval Hearing on $15MM Class Deal Set for Dec. 17
WALGREEN CO: In Camera Review of Withheld Docs in Washtenaw Denied
WEGMANS FOOD: Court Dismisses First Amended Steele Class Suit
WESTERN DENTAL: Settlement in Bulette Class Suit Has Final Approval
WRAP TECHNOLOGIES: Faces Mercurio Suit Over Stock Price Drop
XTREME DRILLING: Final OK of $850,000 Blanco Deal Partly Granted
YALE: Files Motion to Dismiss Tuition Refund Class Action
YAYYO INC: Pomerantz LLP Alerts of Securities Class Action
[*] Luxembourg Minister Presents Class Action Draft Bill
[*] More Than 500 Pandemic-Related Class Actions Filed Since May
*********
3M COMPANY: Keaton Alleges Injury From Exposure to Toxic AFFF
-------------------------------------------------------------
KENNETH SAMUEL KEATON, JR. v. 3M COMPANY (f/k/a Minnesota Mining
and Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY;
CHEMGUARD, INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.;
CORTEVA, INC.; DU PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.);
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATIONAL FOAM, INC.; THE CHEMOURS
COMPANY; TYCO FIRE PRODUCTS LP, as successor-in-interest to The
Ansul Company; UNITED TECHNOLOGIES CORPORATION; UTC FIRE & SECURITY
AMERICAS CORPORATION, INC. (f/k/a GE Interlogix, Inc.), Case No.
2:20-cv-03642-RMG (D.S.C., October 16, 2020), seeks damages for
personal injury sustained by the Plaintiff and those similarly
situated resulting from exposure to aqueous film-forming foams
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the Plaintiff
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Keaton case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
E-mail: gregc@elglaw.com
- and -
J. Edward Bell, III, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP, LLC
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
E-mail: ebell@edbelllaw.com
3M COMPANY: Marti Alleges Injury From Exposure to Toxic AFFF
------------------------------------------------------------
RUSSELL PAUL MARTI v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, INC.; DU
PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION;
E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:20-cv-03643-RMG (D.S.C., Oct 16,
2020), seeks damages for personal injury sustained by the Plaintiff
and those similarly situated resulting from exposure to aqueous
film-forming foams containing the toxic chemicals collectively
known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the Plaintiff
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Marti case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
E-mail: gregc@elglaw.com
- and -
J. Edward Bell, III, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP, LLC
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
E-mail: ebell@edbelllaw.com
3M COMPANY: Ruthenberg Alleges Injury From Exposure to Toxic AFFF
-----------------------------------------------------------------
DANIEL J. RUTHENBERG v. 3M COMPANY (f/k/a Minnesota Mining and
Manufacturing Company); BUCKEYE FIRE EQUIPMENT COMPANY; CHEMGUARD,
INC.; CHEMOURS COMPANY FC, LLC; CHUBB FIRE, LTD.; CORTEVA, INC.; DU
PONT DE NEMOURS INC. (f/k/a DOWDUPONT INC.); DYNAX CORPORATION;
E.I. DU PONT DE NEMOURS AND COMPANY; KIDDE-FENWAL, INC.; KIDDE PLC;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. (f/k/a
GE Interlogix, Inc.), Case No. 2:20-cv-03644-RMG (D.S.C., October
16, 2020), seeks damages for personal injury sustained by the
Plaintiff and those similarly situated resulting from exposure to
aqueous film-forming foams containing the toxic chemicals
collectively known as per and polyfluoroalkyl substances.
AFFF is a specialized substance designed to extinguish
petroleum-based fires. AFFF has been used for decades by military
and civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS.
PFAS binds to proteins in the blood of humans exposed to the
material and remains and persists over long periods of time. Due to
their unique chemical structure, PFAS accumulates in the blood and
body of exposed individuals. PFAS are highly toxic and carcinogenic
chemicals. PFAS includes perfluorooctanoic acid ("PFOA") and
perfluorooctane sulfonic acid ("PFOS") and related chemicals,
including those that degrade to PFOA and/or PFOS. The Defendants
knew, or should have known, that PFAS remain in the human body
while presenting significant health risks to humans, the Plaintiff
contends.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Ruthenberg case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel.[BN]
The Plaintiff is represented by:
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: 205-328-9200
Facsimile: 205-328-9456
E-mail: gregc@elglaw.com
- and -
J. Edward Bell, III, Esq.
Gabrielle Anna Sulpizio, Esq.
BELL LEGAL GROUP, LLC
219 Ridge Street
Georgetown, SC 25442
Telephone: 843-546-2408
Facsimile: 843-546-9604
E-mail: ebell@edbelllaw.com
7-ELEVEN INC: Haitayan Suit Seeks to Certify Rule 23 Class
----------------------------------------------------------
In the class action lawsuit captioned as SERGE HAITAYAN, JASPREET
DHILLON, ROBERT ELKINS, and MANINDER "PAUL" LOBANA, individually
and on behalf of others similarly situated, v. 7-ELEVEN, INC., a
Texas corporation, Case No. 2:17-cv-07454-DSF-AS (C.D. Cal.), the
Plaintiff will move the Court on November 30, 2020 for an order:
1. certify a class pursuant Fed.R.Civ.P. 23, consisting of:
"7-Eleven franchisees who have worked in California since
October 12, 2013";
2. appointing the Plaintiffs Serge Haitayan, Jaspreet
Dhillon, Robert Elkins, and Maninder "Paul" Lobana, as
class representatives; and
3. appointing the Plaintiffs' counsel as class counsel.
The Plaintiffs Serge Haitayan, Jaspreet Dhillon, Robert Elkins, and
Maninder "Paul" Lobana brought this class action lawsuit on behalf
of themselves and those similarly situated alleging that the
Defendant 7-Eleven, Inc. misclassified its franchisees as
independent contractors when they should be deemed employees in
violation of California law.
7-Eleven Inc. is an American international chain of convenience
stores, headquartered in Dallas, Texas. The chain was founded in
1927 as an ice house storefront in Dallas.
A copy of the Plaintiff's motion for class certification dated Oct.
19, 2020 is available from PacerMonitor.com at
https://bit.ly/34eEUpU at no extra charge.[CC]
The Plaintiffs are represented by:
Shannon Liss-Riordan, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
Facsimile: (617) 994-5801
E-mail: sliss@llrlaw.com
ALTERYX INC: Faces Lalgudi Securities Suit Over Stock Price Drop
----------------------------------------------------------------
SUBRAMANIAN LALGUDI, Individually and On Behalf of All 18 Others
Similarly Situated, v. ALTERYX, INC., DEAN A. STOECKER, and KEVIN
RUBIN, Case No. 8:20-cv-01910 (C.D. Cal., Oct. 2, 2020), is a class
action suit on behalf of persons and entities that purchased or
otherwise acquired Alteryx securities between May 6, 2020 and
August 7, 2020, inclusive, pursuing claims against the Defendants
under the Securities Exchange Act of 1934.
The Class Period begins on May 6, 2020. On that day, the Company
announced its first quarter 2020 financial results in a press
release that stated, "Alteryx delivered solid results and crossed
over $400 million in annual recurring revenue in the first quarter,
despite an abrupt and significant change in customer buying
behavior late in the quarter," said Dean Stoecker, CEO of Alteryx,
Inc.
On May 7, 2020, Alteryx filed its quarterly report on Form 10-Q
with the SEC for the period that ended March 31, 2020. The
Company’s Quarterly Report on Form 10-Q was signed by Defendants
Stoecker and Rubin. Therein, the Company affirmed the previously
reported financial results reported on May 6, 2020. On August 6,
2020, after the market closed, Alteryx announced its second quarter
2020 financial results, and stated that the Company expected only
10% to 11% revenue growth for the full year, and 7% to 11% revenue
growth for the third quarter of 2020.
On August 7, 2020, after the market closed, the Company filed its
Quarterly Report on Form 10-Q for the period ended June 30, 2020.
Alteryx further disclosed that during the three and six months
ended June 30, 2020, they continued to experience significant
changes in customer buying behavior that began in March as a result
of the impact of the COVID-19 pandemic, including decreased
customer engagement and delayed sales cycles. On this news,
Alteryx's stock price fell $12.15, or 10%, to close at 26 $109.23
per share on August 10, 2020, on unusually heavy trading volume.
The Plaintiff Subramanian Lalgudi purchased Alteryx securities
during the Class Period, and suffered damages as a result of the
federal securities law violations, false and/or misleading
statements, and/or alleged material omissions.
The Defendant Alteryx is incorporated under the laws of Delaware
with its principal executive offices located in Irvine, California.
Dean A. Stoecker was the Company's Chief Executive Officer. Kevin
Rubin was the Company's Chief Financial Officer. Alteryx purports
to be a leader in analytic process automation. The Company offers a
subscription-based platform that customers can use to access,
prepare, and analyze data from multitude of sources, then deploy
and share analytics at scale to make data-driven decisions.[BN]
The Plaintiff is represented by:
Robert J. Gralewski, Jr., Esq.
Ira M. Press, Esq.
Thomas W. Elrod, Esq.
KIRBY McINERNEY LLP
600 B Street, Suite 2110
San Diego, CA 92101
Telephone: (619) 784-1442
E-mail: bgralewski@kmllp.com
250 Park Avenue, Suite 820
New York, NY 10177
Telephone: (212) 371-6600
Facsimile: (212) 751-2540
E-mail: ipress@kmllp.com
telrod@kmllp.com
AMAZON.COM INC: 1st Cir. Upholds Arbitration Denial in Waithaka
---------------------------------------------------------------
In the case, BERNARD WAITHAKA, on behalf of himself and all others
similarly situated, Plaintiff, Appellee, v. AMAZON.COM, INC.;
AMAZON LOGISTICS, INC., Defendants, Appellants, Case No. 19-1848
(5th Cir.), a three-jugde panel of the U.S. Court of Appeals for
the First Circuit affirmed the district court's denial of the
Appellants' motion to compel arbitration.
The putative class action requires the Court to decide whether
employment contracts of certain delivery workers -- those locally
transporting goods on the last legs of interstate journeys -- are
covered by the Federal Arbitration Act ("FAA"), given its exemption
for contracts of employment of seamen, railroad employees, or any
other class of workers engaged in foreign or interstate commerce.
Amazon.com and Amazon Logistics are based in Seattle, Washington.
Amazon sells retail products online to customers throughout the
United States. To ensure that millions of packages reach their
final destination as efficiently as possible, Amazon Logistics
provides package delivery services through the last mile of the
order. Amazon attributes its success as one of the world's largest
online retailers, in part, to its accurate and timely package
delivery.
Historically, Amazon has used third-party delivery providers, such
as FedEx, UPS, and the United States Postal Service, to deliver its
products. In recent years, however, Amazon has also begun to
contract with independent contractors for delivery services through
its Amazon Flex ("AmFlex") smartphone application. These
contractors, like Waithaka, sign up for delivery shifts and then
use their own methods of transportation -- typically, a private
vehicle -- to deliver products ordered through Amazon within a
specified timeframe and in compliance with other Amazon service
standards. AmFlex contractors are paid an hourly rate for their
delivery shifts. But if contractors require more time than a
normal shift to complete all of their deliveries, they are not
compensated for the additional time. Nor do they receive any
reimbursement for their gas, car maintenance, or cellphone data
expenses.
To begin work with AmFlex, a prospective contractor must download
the AmFlex app, create an account, login, and agree to the AmFlex
Independent Contractor Terms of Service ("TOS"). The second
paragraph of the TOS contains tha arbitration provisions. Section
11 of the Agreement further explains the arbitration requirement
and also states that the parties waive their rights to bring class
actions.
Two parts of the Agreement pertain to the parties' choice of law.
The dispute resolution section includes a provision stating that
the Federal Arbitration Act and applicable federal law will govern
any dispute that may arise between the parties. In a separate
section, the TOS indicates the law that governs the interpretation
of the Agreement. Finally, the Agreement includes a severability
provision, which states that if any provision of the Agreement is
determined to be unenforceable, the parties intend that it be
enforced as if the unenforceable provisions were not present and
that any partially valid and enforceable provisions be enforced to
the fullest extent permissible under applicable law.
Bernard Waithaka, a resident of Massachusetts, "on-boarded" into
the AmFlex program on Jan. 13, 2017, and accepted the TOS on that
same date. He did not opt out of the arbitration agreement. Since
2017, Waithaka has collected packages for delivery in Massachusetts
and has not crossed state lines in the course of his deliveries.
Waithaka filed the action in Massachusetts state court in August
2017, asserting three claims against Amazon: (1) misclassification
of AmFlex drivers as independent contractors, rather than
employees; (2) violation of the Massachusetts Wage Act by requiring
AmFlex drivers to "bear business expenses necessary to perform
their work"; and (3) violation of the Massachusetts Minimum Wage
Law. He seeks to bring these claims on behalf of himself and
individuals who have worked as delivery drivers for the Appellants
in the Commonwealth of Massachusetts and have been classified as
independent contractors.
Although Amazon timely removed the case to federal court, the
district court remanded the case after concluding that the putative
class did not meet the requisite amount in controversy for
jurisdiction pursuant to the Class Action Fairness Act. However,
Amazon was successful when it again removed the case in September
2018. Concluding that the amount in controversy had increased
since the first removal and that the second removal was not
time-barred, the district court denied Waithaka's second motion to
remand.
In April 2019, Amazon moved to compel arbitration pursuant to the
TOS, or, in the alternative, to transfer the case to the United
States District Court for the Western District of Washington so
that the case could proceed with similar, earlier-filed litigation
that was pending. In August 2019, the district court denied in
part and granted in part the motion. Specifically, the district
court concluded that Waithaka's Agreement was exempt from the FAA,
that Massachusetts law therefore governed the enforceability of the
arbitration provision, and that the provision was unenforceable
based on Massachusetts public policy. However, the court granted
the Appellants' alternative request to transfer the case, which has
since occurred.
Amazon timely filed the appeal, challenging the district court's
denial of the motion to compel arbitration. The parties agreed to
stay the Washington proceedings pending the resolution of the
appeal.
Using the principles articulated in Circuit City as a guide, the
Panel turns to the interpretive question raised in the case:
whether Waithaka belongs to a class of workers engaged in foreign
or interstate commerce, such that his contract with appellants is
exempt from the FAA's coverage. In answering that question, the
Panel notes that the Supreme Court recently held that the Section 1
exemption does not apply exclusively to contracts of "employees,"
but rather to "agreements to perform work," including those of
independent contractors. Accordingly, there is no dispute that the
independent contractor agreement at issue would fall within the
Section 1 exemption if Waithaka qualifies as a transportation
worker.
The Panel rejects Amazon's cramped construction of Section 1's
exemption for transportation workers. The original meaning of the
phrase "engaged in interstate commerce," revealed by the FELA
precedents, and the text, structure, and purpose of the FAA, all
point to the same conclusion: Waithaka and other last-mile delivery
workers who haul goods on the final legs of interstate journeys are
transportation workers "engaged in interstate commerce," regardless
of whether the workers themselves physically cross state lines. By
virtue of their work transporting goods or people within the flow
of interstate commerce, Waithaka and other AmFlex workers are "a
class of workers engaged in interstate commerce." Accordingly, the
FAA does not govern the dispute, and it provides no basis for
compelling the individual arbitration required by the dispute
resolution section of the Agreement at issue.
Having concluded that the FAA does not govern the enforceability of
the dispute resolution section of the Agreement, with its
requirement of individual arbitration, the Panel must now decide
whether such arbitration may still be compelled pursuant to state
law. Because the parties dispute which state's law -- that of
Washington or Massachusetts -- governs that enforceability
question, its analysis proceeds in two parts.
First, it analyzes the contract's choice-of-law and severability
language to determine the governing law. It concludes that the
contract selects the law of Washington. Then, the Panel considers
whether conflict-of-law principles permit the enforceability of
that contractual choice of Washington law. Because it concludes
that Massachusetts would treat the class waiver provisions in the
Agreement as contrary to the Commonwealth's fundamental public
policy and that, based on conflict-of-laws principles, the
contractual choice of Washington law would be unenforceable if it
would permit such waivers, it decides that individual arbitration
cannot be compelled pursuant to state law.
Assuming that Washington law would permit the class waiver
provisions, Massachusetts law would oust the contractual choice of
Washington law as contrary to the Commonwealth's fundamental public
policy and would govern the enforceability of the dispute
resolution section of the Agreement. Under Massachusetts law, the
class waiver provisions would be invalid. Because, as noted, see
supra Section III.B, the Agreement stipulates that the class waiver
provisions cannot be severed from the rest of the dispute
resolution section, the arbitration provision would be similarly
unenforceable.
Thus, the district court rightly refused to compel arbitration
pursuant to state law, the First Circuit holds. For these reasons,
Judge Kermit Lipez, writing for the First Circuit panel, affirmed
the district court's denial of Amazon's motion to compel
arbitration.
A full-text copy of the First Circuit's July 17, 2020 Order is
available at https://bit.ly/3jrOvy0 from Leagle.com.
David B. Salmons, with whom James P. Walsh, Jr., Noah J. Kaufman --
noah.kaufman@morganlewis.com -- Michael E. Kenneally --
michael.kenneally@morganlewis.com -- and Morgan, Lewis & Bockius
LLP were on brief, for appellants.
Harold L. Lichten, with whom Shannon Liss-Riordan --
sliss@llrlaw.com -- Adelaide H. Pagano -- apagano@llrlaw.com -- and
Lichten & Liss-Riordan, P.C. were on brief, for appellee.
Archis A. Parasharami and Mayer Brown LLP on brief for the Chamber
of Commerce of the United States of America and the National
Association of Manufacturers, amici curiae.
Corbin K. Barthold, Richard A. Samp, and Washington Legal
Foundation on brief for Washington Legal Foundation, amicus
curiae.
Toby J. Marshall, Blythe H. Chandler, Elizabeth A. Adams --
elizabeth.bresnahan@morganlewis.com -- Terrell Marshall Law Group
PLLC, Jennifer D. Bennett, and Public Justice on brief for Public
Justice, amicus curiae.
AMERICAN LIMOUSINE: Settles Limo Drivers Class Action for $1.6MM
----------------------------------------------------------------
Law360 reports that New York-area limo drivers told a federal judge
on Sept. 30 that American Limousine Group LLC has agreed to shell
out $1.6 million to end a proposed class action accusing the
company of violating federal and state law by making them work
off-the-clock and withholding tips. [GN]
ARBITERSPORTS LLC: Faces McCluskey Class Suit Over Data Breach
--------------------------------------------------------------
RICHARD MCCLUSKEY, on behalf of himself and all others similarly
situated, v. ARBITERSPORTS, LLC, Case No. 1:20-cv-02557-JMS-TAB
(S.D. Ind., Oct. 1, 2020), arises out of the recent cyberattack and
data breach involving the Defendant ArbiterSports, which held in
its possession certain personally identifiable information (PII) of
the Plaintiff and the putative Class Members, all of whom have PII
on ArbiterSports servers.
The PII compromised in the Data Breach included highly-sensitive
information including first and last names, addresses, dates of
birth, username, passwords, Social Security numbers, full bank
account numbers, and payroll and withholding information.
The Plaintiff contends that the Data Breach was a direct result of
Defendant's failure to implement adequate and reasonable
cybersecurity procedures and protocols necessary to protect
consumers' PII.
The Plaintiff is and was as individual citizen of the State of
Florida, residing in the city of Brooksville. He received notice of
the Data Breach from ArbiterSports on August 25, 2020.
ArbiterSports is the sports officiating software company of the
National Collegiate Athletic Association, and is a venture between
two NCAA subsidiaries, Arbiter LLC and eOfficials LLC. The company
is based in Sandy, Utah.[BN]
The Plaintiff is represented by:
Gary M. Klinger
MASON LIETZ & KLINGER LLP
227 W. Monroe Street, Suite 2100
Chicago, IL 60630
Telephone: (202) 429-2290
E-mail: gklinger@masonllp.com
- and -
James Felman, Esq.
Katherine Yanes, Esq.
KYNES MARKMAN & FELMAN
1000 South Ashley Drive, Suite 300
Tampa, FL 33602
Telephone: (813) 229-1118
E-mail: jfelman@kmf-law.com
kyanes@kmf-law.com
- and -
Gary E. Mason, Esq.
David K. Lietz, Esq.
MASON LIETZ & KLINGER LLP
5101 Wisconsin Avenue NW, Suite 305
Washington, DC 20016
Telephone: (202) 429-2290
E-mail: gmason@masonllp.com
dlietz@masonllp.com
BANK OF AMERICA: Class Settement in Contant Suit Gets Prelim. OK
----------------------------------------------------------------
In the case, JAMES CONTANT, et al., Plaintiffs, v. BANK OF AMERICA
CORPORATION, et al., Defendants, Case No. 17-cv-3139-LGS, Related
to No. 13-cv-7789-LGS (S.D. N.Y.), Judge Lorna G. Schofield of the
U.S. District Court for the Southern District of New York has
preliminary approved the proposed class settlements.
The Plaintiffs have entered into and executed a Stipulation and
Agreement of Settlement with (i) Defendant Standard Chartered Bank
("SC"); (ii) Societe Generale ("SG"); and Defendants Bank of
America Corporation, Bank of America, N.A., and Merrill Lynch,
Pierce, Fenner & Smith Inc., Barclays Bank PLC and Barclays Capital
Inc.; BNP Paribas (identified in the Complaint as BNP Paribas
Group), BNP Paribas US Wholesale Holdings Corp., previously known
as BNP Paribas North America, Inc., and BNP Paribas Securities
Corp., which now includes BNP Paribas Prime Brokerage, Inc., Credit
Suisse AG and Credit Suisse Securities (USA), LLC, Deutsche Bank
AG, The Goldman Sachs Group, Inc. and Goldman, Sachs & Co. (now
known as Goldman Sachs & Co., LLC), HSBC Bank plc, HSBC North
America Holdings, Inc., HSBC Bank USA, N.A., and HSBC Securities
(USA) Inc., JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A.,
Morgan Stanley, Morgan Stanley & Co. LLC, and Morgan Stanley & Co.
International plc, RBC Capital Markets, LLC, The Royal Bank of
Scotland plc (now known as NatWest Markets Plc) and RBS Securities
Inc. (now known as NatWest Markets Securities Inc.), UBS AG, UBS
Group AG, and UBS Securities LLC ("Group Settling Defendants").
In full and final settlement of the claims asserted against them in
the Action, (i) SC has agreed to pay an amount of $1.72 million;
(ii) SG has agreed to pay an amount of $975,000, and (iii) the
Group Settling Defendants have agreed to pay a total amount of $10
million.
The Plaintiffs have made an application pursuant to Rule 23(e) of
the Federal Rules of Civil Procedure, for an order preliminarily
approving the Settlements, which sets forth the terms and
conditions of the settlement of the Action against the New Settling
Defendants and for dismissal of the Action against each New
Settling Defendant with prejudice upon the terms and conditions set
forth in the Settlements. The Class Plaintiffs have sought, and
New Settling Defendants have agreed not to object to, the
certification of the Settlement Classes solely for settlement
purposes.
The Class Counsel have requested that they be appointed as the
settlement class counsel for the Settlement Classes pursuant to
Rule 23(g) of the Federal Rules of Civil Procedure. The Plaintiffs
have also requested that they be appointed the class
representatives of the Settlement Classes. The New Settling
Defendant and the Class Plaintiffs have agreed to the entry of the
Preliminary Approval Order.
Judge Schofield has considered the Settlements and other documents
submitted in connection with the Plaintiffs' Motion for Preliminary
Approval of Settlements. The Judge finds that the Settlements
resulted from arm's-length negotiations between highly experienced
counsel and fall within the range of possible approval. The
litigation risks faced by the Plaintiffs when the Settlements were
reached are substantial. The recoveries achieved by the
Settlements therefore supports preliminary approval, and likely
final approval, of the Settlements when weighed against the risks
of establishing liability and damages against the New Settling
Defendants.
For these reasons, the Judge preliminarily approved the
Settlements, subject to further consideration at the Fairness
Hearing.
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the
Judge preliminarily certified, solely for purposes of effectuating
the Settlements, the following Settlement Classes:
a. New York Class: All persons and entities who, during the Class
Period, indirectly purchased an FX Instrument from a Defendant or
co-conspirator in New York and/or while domiciled in New York, by
entering into an FX Instrument with a member of the Direct
Settlement Class, where the Direct Settlement Class member entered
into the FX Instrument directly with a Defendant or
co-conspirator.
b. Arizona Class: All persons and entities who, during the Class
Period, indirectly purchased an FX Instrument from a Defendant or
co-conspirator in Arizona and/or while domiciled in Arizona, by
entering into an FX Instrument with a member of the Direct
Settlement Class, where the Direct Settlement Class member entered
into the FX Instrument directly with a Defendant or co-conspirator.
c. California Class: All persons and entities who, during the
Class Period, indirectly purchased an FX Instrument from a
Defendant or co-conspirator and were thereby injured in California
by entering into an FX Instrument with a member of the Direct
Settlement Class, where the Direct Settlement Class member entered
into the FX Instrument directly with a Defendant or co-conspirator.
d. Florida Class: All persons and entities who, during the Class
Period, indirectly purchased an FX Instrument from a Defendant or
co-conspirator in Florida and/or while domiciled in Florida, by
entering into an FX Instrument with a member of the Direct
Settlement Class, where the Direct Settlement Class member entered
into the FX Instrument directly with a Defendant or co-conspirator.
e. Illinois Class: All persons and entities who, during the Class
Period, indirectly purchased an FX Instrument from a Defendant or
co-conspirator in Illinois and/or while domiciled in Illinois, by
entering into an FX Instrument with a member of the Direct
Settlement Class, where the Direct Settlement Class member entered
into the FX Instrument directly with a Defendant or
co-conspirator.
f. Massachusetts Class: All persons and entities who, during the
Class Period, indirectly purchased an FX Instrument from a
Defendant or co-conspirator in Massachusetts and/or while domiciled
in Massachusetts, by entering into an FX Instrument with a member
of the Direct Settlement Class, where the Direct Settlement Class
member entered into the FX Instrument directly with a Defendant or
co-conspirator.
g. Minnesota Class: All persons and entities who, during the
Class Period, indirectly purchased an FX Instrument from a
Defendant or co-conspirator in Minnesota and/or while domiciled in
Minnesota, by entering into an FX Instrument with a member of the
Direct Settlement Class, where the Direct Settlement Class member
entered into the FX Instrument directly with a Defendant or
co-conspirator.
h. North Carolina Class: All persons and entities who, during the
Class Period, indirectly purchased an FX Instrument from a
Defendant or co-conspirator and were thereby injured in North
Carolina, by entering into an FX Instrument with a member of the
Direct Settlement Class, where the Direct Settlement Class member
entered into the FX Instrument directly with a Defendant or
co-conspirator.
As defined in the Settlements, the term "Class Period" for purposes
of the SC and SG Settlements is the period of Dec. 1, 2007 through
the date of the Order; and the term "Class Period" for purposes of
the Group Settlement is the period of Dec. 1, 2007 through Dec. 15,
2015.
As defined in the Settlements, the term (i) "FX Instrument" for all
Settlement Classes is any FX spot, forward, swap, future, option,
or any other FX transaction or instrument the trading or settlement
value of which is related in any way to FX rates; and (ii) "Direct
Settlement Class" for all Settlement Classes refers to the class of
direct purchasers who purchased an FX Instrument directly from one
or more Defendants or co-conspirators, which was certified for
settlement purposes in FOREX.
The FOREX settlements, id., define the Direct Settlement Class as:
All Persons who, between Jan. 1, 2003 and Dec. 15, 2015, entered
into an FX Instrument directly with a Defendant, a direct or
indirect parent, subsidiary, or division of a Defendant, a Released
Party, or co-conspirator where such Persons were either domiciled
in the United States or its territories or, if domiciled outside
the United States or its territories, transacted FX Instruments in
the United States or its territories.
The Judge held that:
(i) Berger Montague PC will continue to serve as the Settlement
Class Counsel for the Settlement Classes;
(ii) Settlement Class Representatives James Contant, Sandra
Lavender, Victor Hernandez, Martin-Han Tran, FX Primus Ltd., Carlos
Gonzalez, Ugnius Matkus, Charles G. Hitchcock III, Jerry Jacobson,
Tina Porter, and Paul Vermillion as the Settlement Class
Representatives in connection with the Citigroup and MUFG Bank
Settlements; and
(iii) Heffler Claims Group as the Claims Administrator for
purposes of the Citigroup and MUFG Bank Settlements.
The notice will be disseminated to the members of the Settlement
Classes no later than 45 days after entry of the Order, pursuant to
the Settlement Schedule.
The Judge approved the Plaintiffs' proposed Notice Plan, and the
proposed postcard Notice and Long-Form Notice submitted with their
Motion. The parties will replace the placeholders included in the
forms of notice for the deadlines to object and opt-out with the
date certain identified in the Settlement Schedule.
The Judge preliminarily approved the methods of allocating the Net
Settlement Fund to the Settlement Classes as set forth in the
Declaration of Dr. Janet S. Netz, Ph.D. and related papers
submitted with the Plaintiffs' Motion. The Court will further
evaluate the proposed method of allocation at the Fairness
Hearing.
The Plaintiffs may pay up to $600,000 for notice and claims
administration costs from the Settlement Fund pursuant to the SC,
SG, and Group Settlements. If the actual costs of disseminating
notice and administering the Settlement exceed $600,000 -- in
addition to the $200,000 notice and claims administration costs
that the Court authorized to be paid from the Citigroup and MUFG
Bank Settlement Funds -- the Plaintiffs will file a motion
requesting Court approval for the disbursement of additional funds
for notice and administration costs.
As provided in the Settlement Schedule, the Plaintiffs may file a
motion for attorneys' fees, costs, expenses, and service awards for
the Settlement Class Representatives by 21 days after the Notice
Date.
Huntington National Bank will continue to serve as the Escrow Agent
for the Settlements. The establishment of escrow accounts under
the Settlements as Qualified Settlement Funds ("QSFs") is approved,
and retains continuing jurisdiction as to any issue that may arise
in connection with the formulation or administration of the QSFs.
The funds held by the Escrow Agent will be deemed and considered to
be in custodia legis, and will remain subject to the jurisdiction
of the Court, until such time as such funds will be distributed
pursuant to the Settlements and/or further order(s) of the Court.
A fairness hearing on the settlements is scheduled for November 19,
2020, at 11:30 a.m.
A full-text copy of the District Court's July 17, 2020 Order is
available at https://bit.ly/2J4M0Fv from Leagle.com.
BANK OF AMERICA: Court Denies Motion to Remand Douglas Suit
-----------------------------------------------------------
Judge James L. Robart of the U.S. District Court for the Western
District of Washington, Seattle, denied the Plaintiffs' motion to
remand the case, CLAIRE DOUGLAS, et al., Plaintiffs, v. BANK OF
AMERICA, N.A., et al., Defendants, Case Case No. C20-0193JLR (W.D.
Wash.), to King County Superior Court.
On Dec. 20, 2019, the Plaintiffs filed their first amended
complaint in King County Superior Court. The amended complaint
names three companies as Defendants: Bank of America, N.A., U.S.
Bank National Association, and KeyCorp.
KeyCorp. is a publicly held corporation headquartered in Ohio that
wholly owns KeyBank National Association. In other words, KeyCorp.
is a holding company and KeyBank is one of its subsidiaries.
On Dec. 27, 2019, the Plaintiffs' process server attempted to serve
KeyCorp. at a KeyBank branch in Seattle, Washington. The
Plaintiffs' process server entered the KeyBank branch and spoke to
an individual who identified himself as the assistant manager and
gave his name as Alex Donisin, or something to that effect. The
process server advised the individual that he was at the branch to
serve legal papers upon KeyCorp.
The summons and complaint were addressed to "KeyCorp c/o Beth
Mooney, Chairman/CEO." The individual first indicated that he felt
that the manager should accept the papers, but the process server
advised the individual that any person with authority to accept the
documents can properly accept service. The individual indicated
that he had such authority and did in fact take the material.
On Jan. 8, 2020, the Plaintiffs' counsel emailed a copy of the
complaint to KeyCorp.'s counsel. KeyCorp. removed the case to the
District Court on Feb. 7, 2020. The Plaintiffs contend that
KeyCorp. waited longer than the maximum 30 days after receipt of
service to file its notice of removal under 28 U.S.C. Section
1446(b) because the Plaintiffs served KeyCorp. on Dec. 27, 2019,
but KeyCorp. maintains that the December 27 service attempt was
improper and that the Plaintiffs did not serve KeyCorp. until Jan.
8, 2020. The Plaintiffs' motion relies entirely on KeyCorp.'s
allegedly tardy filing.
KeyCorp. asserts that neither KeyCorp. nor KeyBank employs (nor has
employed) a person named 'Alex Donisin' and there is no 'assistant
manager' at the West Seattle branch authorized to accept service on
behalf of KeyCorp. and no one at that location is authorized to
accept service for its CEO. KeyCorp. claims that it did not
receive notice of the Plaintiffs' complaint until Jan. 8, 2020,
when the Plaintiffs' counsel forwarded a copy of the first amended
complaint to its counsel.
Judge Robart now considers whether the Plaintiffs properly served
KeyCorp. on Dec. 27, 2019. RCW 4.28.080(10) specifies the manner
in which foreign corporations may be served in Washington State,
and the statute does not provide for substituted service on
subsidiaries. Instead, the Plaintiffs must pierce the corporate
veil if they wish to serve a foreign corporation through its
subsidiary.
The Plaintiffs do not aver that "Alex Donisin" is a designated
agent of KeyCorp. authorized to accept service of process.
Instead, they rely on the substituted service provision of RCW
4.28.080(10), asserting that an assistant manager of the KeyBank
branch falls into the "cashier or secretary thereof" category.
The Judge holds that the Plaintiffs are correct in their assertion
that their process server's declaration is presumably correct, but
the declaration at most establishes that the Plaintiffs served an
assistant manager at the wrong corporation. Their Dec. 27, 2019
service attempt is especially troubling because the Plaintiffs'
counsel was not positive KeyCorp. had been served. Thus, the
Plaintiffs' Dec. 27, 2019, service attempt on KeyCorp. was
improper.
While it is KeyCorp.'s burden to establish that removal is proper,
KeyCorp. met the burden in its notice of removal, the Court finds.
In its notice of removal, KeyCorp. establishes that the Court has
original jurisdiction over the case under 28 U.S.C. Section 1332
because the amount in controversy is over $75,000 and there is
complete diversity between the parties. Assuming service took
place on Jan. 8, 2020, KeyCorp. filed its notice of removal on the
last possible day it could do so, meaning removal to the Court was
statutorily proper.
In sum, the Court finds that the Plaintiffs' motion must be denied
because the Plaintiffs did not effectuate proper service on
KeyCorp. on Dec. 27, 2019. The Plaintiffs' process server
improperly attempted to effectuate service on KeyCorp. through its
subsidiary, KeyBank, a statutorily improper method of serving
foreign corporations under RCW 4.28.080. Thus, the earliest
KeyCorp. could have been served was on Jan. 8, 2020, meaning
KeyCorp.'s Feb. 7, 2020, removal was timely.
For the reasons set forth, Judge Robart denied the Plaintiffs'
motion to remand.
A full-text copy of the District Court's July 10, 2020 Order is
available at https://bit.ly/37BQJJ8 from Leagle.com.
BEST-LINE SHADES: Valenzuela Files 2nd Amended Class Complaint
--------------------------------------------------------------
A second amended complaint has been filed in the case, DOLORES
VALENZUELA, et al., Plaintiffs, v. BEST-LINE SHADES, INC., et al.,
Defendants, Case No. 19-cv-07293-JSC (C.D. Cal.) on July 21, 2020.
Plaintiffs Valenzuela and Adela Flores filed the putative wage and
hour class action against their former employer Best-Line Shades
and its owner and president Jill Schaffer seeking to recover unpaid
wages and penalties under the Fair Labor Standards Act and
California labor laws.
The Second Amended Complaint was filed after Magistrate Judge
Jacqueline Scott Corley of the U.S. District Court for the Northern
District of California granted the Plaintiffs leave to make the
filing.
The Plaintiffs sought leave to amend the complaint (1) to allege
additional facts which post-date the First Amended Complaint
including that the Defendants' operations ceased on March 17, 2020
and employees were told that they would not be paid for their final
two weeks of work; (2) to add an additional named Plaintiff
Raymunda Menijivar who was employed by the Defendants through this
date; and (3) to add Richard Schaffer, who allegedly recently
became Best-Line Shades' CFO, as a Defendant.
The Plaintiffs contend that amendment is proper because they seek
to allege facts that developed following the filing of the First
Amended Complaint and to add a Defendant so that they can pursue
and recover on their claims against Mr. Schaffer at the CFO as well
as Best-Line Shades and Ms. Schaffer as the owner and president.
The Defendants do not oppose the amendment except as to adding Mr.
Schaffer as a Defendant because they contend that such amendment
would be futile because Mr. Schaffer is not an "employer" under the
Fair Labor Standards Act.
In his decision, Magistrate Judge Corley concluded that amendment
is proper. There is no evidence of material prejudice to the
Defendants, no evidence of bad faith, and no evidence of undue
delay, the Court noted. Finally, there is nothing to suggest that
amendment of the Plaintiffs' complaint to add these allegations and
parties would be futile, the Court added.
A full-text copy of the District Court's July 17, 2020 Order is
available at https://bit.ly/3otRQ3e from Leagle.com.
BP EXPLORATION: Obtains Summary Judgment in Scarbrough BELO Suit
----------------------------------------------------------------
In the case, GARY SCARBROUGH, Plaintiff, v. BP EXPLORATION &
PRODUCTION, INC., and BP AMERICA PRODUCTION COMPANY, Defendants,
Case No. 2:19-cv-00706-AMM (N.D. Ala.), Judge Anna M. Manasco of
the U.S. District Court for the Northern District of Alabama,
Southern Division, granted BP Exploration & Production, Inc. and BP
America Production Co.'s unopposed motion for summary judgment.
Plaintiff Scarbrough's amended complaint alleges that he suffered
injuries from exposure to crude oil, dispersants, and other harmful
chemicals while performing clean-up work following the Deepwater
Horizon Rig oil spill in April 2010. Mr. Scarbrough alleges that
he was employed by Miller Environmental Group from approximately
May 2010 to July 2010 to perform shoreline clean-up and boom
decontamination. He further alleges that he was exposed to oil,
dispersants, and other harmful chemicals through inhalation, by
airborne and direct contact, and "when his eyes, nose, mouth, and
skin were exposed by the lack of proper protective gear." Mr.
Scarbrough claims that this exposure caused him to suffer permanent
injuries, including Follicular Dendritic Cell Sarcoma, which was
first diagnosed on April 20, 2018.
The "Medical Benefits Class Action Settlement Agreement," approved
by the U.S. District Court for the Eastern District of Louisiana on
Jan. 11, 2013, governs claims arising from clean-up efforts after
the Deepwater Horizon Rig oil spill. The Settlement Agreement
defines the settlement class as all Natural Persons who resided in
the United States as of April 16, 2012, and who worked as Clean-Up
Workers at any time between April 20, 2010, and April 16, 2012. It
is undisputed that Mr. Scarbrough is a member of the settlement
class.
The Settlement Agreement provides class members with a "Back-End
Litigation Option" ("BELO") for class members who claim a
"Later-Manifested Physical Condition," which the Settlement
Agreement defines as a physical condition that is first diagnosed
after April 16, 2012, and which is claimed to have resulted from
exposure to oil, other hydrocarbons, or other substances and/or
exposure to dispersants and/or decontaminants used in connection
with the Response Activities, where such exposure occurred on or
prior to April 16, 2012, for Clean-Up Workers. Mr. Scarbrough
chose this option to file his lawsuit against BP, and he claims his
injuries fall under the definition.
For BELO lawsuits alleging Later-Manifested Physical Conditions,
the Settlement Agreement provides a list of issues that may and may
not be litigated. Among other things, the Settlement Agreement
permits the parties to litigate whether the alleged
Later-Manifested Physical Condition was legally caused by his or
her exposure to oil, other hydrocarbons, and other substances
and/or dispersants and/or decontaminants used in connection with
the Response Activities, as well as wether there exist any
alternative causes for the alleged Later-Manifested Physical
Condition.
Under the court's scheduling order, Mr. Scarbrough's deadline to
disclose his expert witnesses and reports was Jan. 30, 2020. Mr.
Scarbrough did not disclose his experts by the deadline. On Jan.
31, 2020, BP moved for summary judgment on all of Mr. Scarbrough's
claims on the ground that Mr. Scarbrough cannot establish causation
with respect to any of his alleged physical injuries as a result of
exposure to oil or chemical dispersants during clean-up activities
because he has not offered the requisite expert evidence to support
his claims against BP.
Before the Court's deadline for Mr. Scarbrough to respond to the
motion, BP filed a supplement to inform it that the motion was
unopposed. Mr. Scarbrough did not file an opposition to BP's
motion for summary judgment, which opposition was due by Feb. 24,
2020.
Judge Manasco opines that Mr. Scarbrough failed to disclose any
expert witnesses whose testimony would establish causation. He
also did not file by Feb. 24, 2020 a response to BP's motion for
summary judgment, and, according to BP's supplement filing, has
agreed not to oppose the motion. In the absence of expert
testimony about causation, Mr. Scarbrough cannot prove an essential
element of his toxic tort claim. Accordingly, the Judge concludes
that BP is entitled to judgment as a matter of law.
For the foregoing reasons, Judge Manasco granted the BP's unopposed
motion for summary judgment.
A full-text copy of the District Court's July 10, 2020 Memorandum
Opinion is available at https://bit.ly/35sreqX from Leagle.com.
C.L. KNOX: Cal. App. Affirms Summary Judgment in Thompson Suit
--------------------------------------------------------------
In the case, JACKIE THOMPSON et al., Plaintiffs and Appellants, v.
C.L. KNOX, INC., Defendant and Respondent, Case No. F077511 (Cal.
App.), a three-judge panel of the Court of Appeals of California
for the Fifth District affirmed the April 18, 2018 judgment of the
Kern County Superior Court granting summary judgment in favor of
Defendant C.L. Knox, doing business as Advanced Industrial Services
("AIS").
AIS is a Bakersfield-based tank cleaning and services company. Its
personnel consist of approximately 110 to 120 employees, 90 percent
of whom work in the field and perform the following principal
activities: oil tank and vessel cleaning, hydro excavation, high
pressure water blasting, industrial painting and coating, and
specialty material vacuuming. On occasion, the company receives
temporary employees from local temporary staffing agencies.
AIS held safety meetings at its office every Thursday until Feb. 5,
2015, and on the first Thursday of each month thereafter. They
began at 5:15 a.m. and typically lasted between 20 minutes and an
hour.
Three separate lawsuits were consolidated into a single class
action. The operative complaint defined the class as all
individuals who (1) work or have worked for AIS as a non-exempt
employee and all individuals who work or have worked for
Continental Labor Resources, Inc. and were placed at AIS as a
non-exempt employee and (2) who attended one or more safety
meetings between Feb. 25, 2009 and the present. Plaintiffs Kevin
Fritz, George Montoya, Jackie Thompson, Keith Aurthur, and Manuel
Macias were appointed as the class representatives.
In the operative complaint, the Plaintiffs alleged AIS violated
Labor Code sections 510, 1194, 1194.2, and 1198. They alleged that
during the liability period, AIS failed to pay the Plaintiffs and
the members of the Class all minimum wages and overtime wages. The
Plaintiffs also alleged AIS furnished inaccurate wage statements;
failed to promptly pay wages to former employees; engaged in unfair
competition; and was subject to civil penalties under the Labor
Code Private Attorneys General Act of 2004.
On Oct. 26, 2017, AIS filed a motion for summary judgment or, in
the alternative, summary adjudication. On Jan. 5, 2018, the
Plaintiffs filed an opposition to AIS' motion. It argued each of
the material issues which AIS purports is undisputed in the case is
actually in dispute: Whether attendance at Thursday Morning Safety
Meetings was mandatory; whether employees were paid for their
travel time from AIS' office following said meetings to their
respective job sites; whether employees were paid properly for
their travel time; and whether employees were properly paid
overtime wages.
Motion hearings were held on Jan. 19, 2018, and Feb. 16, 2018. On
March 26, 2018, the superior court granted AIS' summary judgment
motion.
The Appellate Court recognized the general rule that concessions or
admissions made during the course of discovery control over
contrary affidavits or declarations filed in connection with a
motion for summary judgment. As pointed out by the court, however:
(1) Morgan's deposition testimony did not have the same binding
effect as a response to a Request for Admissions because, even
though Morgan was designated as the person most knowledgeable to
testify on AIS' behalf, she may be confronted with some questions
that are unexpected, even after the designation of categories of
questions contemplated by the discovery statutes; (2) Morgan's
declaration was not offered for the first time in summary judgment,
but pre-dated the summary judgment motion by months"; and (3) AIS
did not offer Morgan's declaration to impeach her testimony by a
contrary assertion. Instead, the true issue before the court in
light of AIS' objection made was whether Morgan's testimony would
be admissible at trial over the objection. The Appellate Court
concludes that the superior court's ruling did not exceed the
bounds of reason.
As the reviewing court, the Appellate Court determines de novo
whether an issue of material fact exists and whether the moving
party was entitled to summary judgment as a matter of law. In
other words, it must assume the role of the trial court and
reassess the merits of the motion. In doing so, it considers only
the facts properly before the trial court at the time it ruled on
the motion. The Panel applies the same three-step analysis
required of the trial court. First, it identifies the issues
framed by the pleadings since it is these allegations to which the
motion must respond. Second, it determines whether the moving
party's showing has established facts which negate the opponent's
claim and justify a judgment in the moving party's favor. When a
summary judgment motion prima facie justifies a judgment, the third
and final step is to determine whether the opposition demonstrates
the existence of a triable issue of material fact.
The Plaintiffs contend there remained triable issues of fact
irrespective of Morgan's testimony. Specifically, (1) whether
non-drivers should have been compensated for their drive time was
still a triable issue; and (2) the trial court misapplied the de
minimis doctrine.
First, the Appellate Court holds that the Plaintiffs did not
provide evidence demonstrating the existence of a triable issue of
material fact. It finds that AIS provided the deposition
testimonies and declarations of Knox and various AIS employees to
prove attendance at the Thursday morning safety meetings was
optional and the activities at said meetings were not part of
non-safety employees' regular work in the ordinary course of
business. These deposition testimonies and declarations were also
provided to prove employees that attended a Thursday morning safety
meeting were not taken off the clock after the meeting ended and
while they traveled from the office to their worksite.
The Plaintiffs relied on either evidence that was not admitted,
inadmissible evidence, or evidence insufficient to allow a
reasonable trier of fact to find the Thursday morning safety
meetings were mandatory and/or involved integral and indispensable
components of their principal activities. Hence, on this matter,
the Plaintiffs did not provide evidence demonstrating the existence
of a triable issue of material fact.
The Plaintiffs alleged AIS did not pay the proper amount of
overtime compensation to employees who attended the Thursday
morning safety meetings, i.e., the company utilized the meeting's
lower $8 rate rather than the weighted average of all hours worked,
resulting in substantial underpaid overtime. In support of its
summary judgment motion, AIS provided declarations from numerous
employees who attested their overtime pay was chiefly based on
their regular wage rates and occasionally based on the minimum wage
rate.
Assuming, arguendo, the court should not have invoked the de
minimis doctrine, the $2.04 deficiency remained immaterial. A fact
is material when, under the governing substantive law, it could
affect the outcome of the case. The record shows Aurthur worked at
AIS for 12 days. As noted by the court, the Plaintiffs could only
demonstrate AIS underpaid Aurthur $2.04 during a single pay period.
They did not offer any evidence Authur's deficient wage statement
was of a type that predominated for the Plaintiffs or for the
class. Thus, the Plaintiffs' evidence could not establish the
existence of a triable issue of material fact.
In light of the foregoing, writing for the Appellate Panel, Judge
Jennifer R.S. Detjen affirmed the judgment of the superior court
granting summary judgment. Costs on appeal are awarded to AIS.
A full-text copy of the Appellate Court's July 17, 2020 Opinion is
available at https://bit.ly/3e2sQeL from Leagle.com.
Gaines & Gaines, Alex Paul Katofsky -- alex@gaineslawfirm.com --
Miriam Leigh Schimmel -- miriam@gaineslawfirm.com; Kabateck Brown
Kellner, Kabateck, Brian S. Kabateck, and Christopher B. Noyes for
Plaintiffs and Appellants.
Muzi & Associates, Andrew C. Muzi -- amuzi@muzilaw.com -- and Nida
L. Henderson -- nhenderson@muzilaw.com; Hagan Law Group and Joseph
A. Werner for Defendant and Respondent.
CALIFIA FARMS: Final Judgment Entered in Cicciarella Class Suit
---------------------------------------------------------------
Judge Cathy Seibel of the U.S. District Court for the Southern
District of New York has entered Final Approval Order and Judgment
in the case, MICHELLE ANN CICCIARELLA and TANASHA RIETDYK,
individually on behalf of all others similarly situated,
Plaintiffs, v. CALIFIA FARMS, LLC, Defendant, Case No.
7:19-cv-08785-CS (S.D. N.Y.).
On March 20, 2020, the Court granted the motion of the Plaintiffs
for preliminary approval of the Settlement Agreement and
certification of the Settlement Class. Commencing on April 13,
2020, pursuant to the notice requirements in the Settlement
Agreement and the Preliminary Approval Order, KCC, LLC, the
Settlement Administrator, began providing notice to the Settlement
Class Members in compliance with the Settlement Agreement and the
Notice Plan, due process, and Rule 23 of the Federal Rules of Civil
Procedure.
On July 9, 2020, Judge Seibel held a Final Approval hearing. Based
on her review, she finds that the Settlement Agreement is fair,
reasonable, adequate and in the best interests of Settlement Class
Members. Therefore, she granted final approval of the Settlement
Agreement in full, including but not limited to the releases
therein and the procedures for distribution of the Settlement Fund.
All Settlement Class Members are bound by the Final Approval Order
and Judgment.
Solely for purposes of the Settlement Agreement and the Final
Approval Order and Judgment, the Judge certified the following
Settlement Class: All purchasers nationwide of all Califia Products
listed in Exhibit A to the Settlement Agreement from Aug. 7, 2014
through March 5, 2020.
The Judge also granted final approval to the appointment of (i) the
Plaintiffs as the Class Representatives; and (ii) Michael R. Reese
of Reese LLP and Spencer Sheehan of Sheehan & Associates, P.C. as
the counsel for the Settlement Class.
The Plaintiffs' Counsel is awarded $750,000 in fees and
reimbursement expenses. Each of the Plaintiffs is awarded $5,000
(for a total of $30,000) as Incentive Awards. The payments will be
made from the Settlement Fund pursuant to the procedures in the
Settlement Agreement.
The Judge released and forever discharged the Released Parties from
each of the Released Claims, as provided in the Settlement
Agreement. The Action is dismissed in its entirety with prejudice,
and without fees or costs except as otherwise provided for in the
Final Approval Order.
Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure,
there is no just reason for delay in the entry of the Final
Approval Order and Judgment and immediate entry by the Clerk of the
Court is expressly directed. The Judge entered judgment in the
matter pursuant to Rule 58 of the Federal Rules of Civil
Procedure.
A full-text copy of the Court's July 17, 2020 Final Order &
Judgment is available at https://bit.ly/3kup9kx from Leagle.com.
CAPITAL ONE: Knox Files Placeholder Class Certification Bid
-----------------------------------------------------------
In the class action lawsuit styled as ALFRED KNOX, Individually and
on Behalf of All Others Similarly Situated, vs. CAPITAL ONE BANK
(USA), N.A. Case No. 2:20-cv-01403-LA (E.D. Wisc.), the Plaintiff
filed a "placeholder" motion for class certification in order to
prevent against a "buy-off" attempt, a tactic class-action
defendants sometimes use to attempt to prevent a case from
proceeding to a decision on class certification by attempting to
"moot" the named plaintiff's claims by tendering the plaintiff
individual (but not classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
himself as the class representative, and appoint his attorneys as
class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
A copy of the Plaintiff’s Placeholder motion to certify class is
available from PacerMonitor.com at https://bit.ly/3hF5a0f at no
extra charge.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
ADEMI & O'REILLY
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
CHUCK'S FISH: Refuses to Pay Minimum Wages, Guest Claims
--------------------------------------------------------
LETICIA GUEST, individually and on behalf of all others similarly
situated, v. CHUCK'S FISH ATHENS, LLC., and MITCHELL DANE
HENDERSON, Case No. 3:20-cv-00108-CAR (M.D. Ga., Oct. 2, 2020),
alleges that the Defendants violated the Fair Labor Standards Act
and Georgia law.
The Plaintiff contends that she worked for Defendants within three
years preceding the filing of this Complaint. The Defendants failed
and willfully refused to pay her minimum wages equal to or
exceeding the amount required under the FLSA.
Further, Defendants committed fraud under Georgia law. The
Plaintiff alleges that the Defendants fraudulently inflated the
dollar amount of cash tips allegedly paid to the Plaintiff,
claiming far higher amounts than were actually paid.
The Defendants operate a seafood restaurant.[BN]
The Plaintiff is represented by:
Peter H. Steckel, Esq.
STECKEL LAW, L.L.C.
54 South Main Street
Watkinsville, GA 30677
Telephone: (404) 717-6220
E-mail: peter@SteckelWorkLaw.com
COLGATE-PALMOLIVE CO: Summary Judgment in McCutcheon Partly Granted
-------------------------------------------------------------------
In the case, REBECCA McCUTCHEON, et al., Plaintiffs, v.
COLGATE-PALMOLIVE CO., et al., Defendants, Case No. 16 Civ. 4170
(LGS) (S.D. N.Y.), Judge Lorna G. Schofield of the U.S. District
Court for the Southern District of New York granted in part and
denied in part the Defendants' motion for summary judgment on
Counts I and II of the Complaint.
Plaintiff and class representative Rebecca McCutcheon brings the
action, on behalf of herself and others similarly situated, under
the Employee Retirement Income Security Act of 1974 ("ERISA"),
against Defendants Colgate, Colgate-Palmolive Co. Employees'
Retirement Income Plan, Laura Flavin, Daniel Marsili and the
Employee Relations Committee of Colgate-Palmolive Co.
Defendant Colgate is a global consumer products company and is the
sponsor of the Plan. At all relevant times, Defendant Plan was an
"employee pension benefit plan" and a defined benefit plan within
the meaning of ERISA; Defendant Committee was the "plan
administrator," and, along with non-party the Pension Fund
Committee, was a "named fiduciary" of the Plan. Defendants Marsili
(Senior VP of Global Human Resources) and Flavin (VP for Global
Employee Compensation and Benefits) were members of the Committee.
The Plan originally operated as a traditional defined benefit plan,
which guaranteed that each member receives an "accrued benefit"
expressed as an annuity upon reaching "normal retirement age," age
65. Effective July 1, 1989, the Plan was converted to a cash
balance plan. For Class Members who, like McCutcheon, separated
from service between 1989 and 2000, the Plan used a projection rate
of the 20-year Treasury bill interest rate plus 1% ("20+1% rate").
The 20+1% rate used by the Defendants between 1989 and 2000 was
consistently and substantially higher than the Pension Benefit
Guaranty Corporation ("PBGC") rate.
In 2004, it came to Colgate's attention that the lump sum payments
that the Plan had been paying to Participants were less than the
Participants would have otherwise received had they elected to
receive an annuity. On March 30, 2005, the Committee adopted the
RAA to address the potential unlawful forfeiture of benefits.
The Residual Annuity Amendment ("RAA") amended the Plan and granted
a residual annuity ("RAA Annuity") to any Participant who elected a
lump sum payment upon separation, and whose age 65 single life
annuity benefit otherwise payable to the Member under Appendices B,
C or D, as applicable, ("Grandfathered Benefit") was greater than
the age 65 single life annuity actuarial equivalent of a
Participant's lump sum payment ("Age 65 AE of LS paid").
Retroactive implementation of the RAA did not occur at that time
for Participants who had retired between July 1989 and February
2005, such as McCutcheon.
In 2007, In re Colgate-Palmolive Co. ERISA Litig. ("Colgate I"), a
class action, was commenced on behalf of several thousand
Participants against Colgate, alleging that their pension benefits
had been miscalculated. In May 2010, the parties in Colgate I
reached an agreement in principle to settle that case. After the
Colgate I settlement, the Defendants retroactively applied the RAA,
granting millions of dollars of additional annuity benefits to a
few hundred Participants who had taken a lump sum payment between
1989 and 2005 and who had continued to make contributions under the
Grandfathered Formula. The Defendants contend that all
Participants entitled to an RAA Annuity received one at that time.
The Plaintiffs dispute it.
McCutcheon was employed by Colgate from 1979 to 1994, and
participated in the Plan during that time. After the Plan
converted in 1989, she continued to make contributions under the
Grandfathered Formula until she resigned from the company at the
age of 37 in 1994. She elected to receive her pension benefit as a
lump sum distribution of $22,425.64. She did not receive any
benefit under the RAA when it was enacted in 2005. On July 30,
2014, she submitted a claim letter to the Committee, stating that
she was entitled to an RAA Annuity, in addition to the lump sum
payment she had received in 1994. She requested that the
Defendants begin paying her an RAA Annuity, and provide an
explanation of how it was calculated.
Defendant Flavin responded on behalf of the Committee and denied
McCutcheon's claim, by letter dated Nov. 4, 2014. Because her
Grandfathered Benefit (calculated as $699.58) was less than her Age
65 AE of LS paid (calculated as $752.84), the Committee concluded
that McCutcheon was not entitled an RAA Annuity.
McCutcheon formally appealed the Committee's benefit denial
decision in a letter dated April 6, 2015, identifying four errors
that the Committee allegedly committed in the course of calculating
her RAA Annuity. The four Errors are the basis for the denial of
benefits claim in Count II. The April 6, 2015, letter also noted
that the Defendants had not adequately responded to the 39 specific
requests for documents, records and/or information made in
McCutcheon's Jan. 6, 2015, letter, and again requested that the
Defendants respond to those contentions, answer those questions,
and fully comply with those requests so as to prevent further
prejudice to McCutcheon.
As Error 1, the Plaintiffs assert that the Defendants miscalculated
the RAA benefit, causing an impermissible forfeiture of benefits by
Class Members. In Error 2, the Plaintiffs argue that the
Defendants used the wrong Plan provision to determine the Estimated
Primary Insurance Amount ("PIA") when calculating benefits under
the Grandfathered Formula. In Error 3, they argue that the
Defendants improperly used a pre-retirement mortality discount
("PRMD") to determine a Class Member's RAA Annuity in the
calculation of the age 65 actuarial equivalence for the period
prior to age 65 (normal retirement age). Finally, in Error 4, the
Complaint alleges that, while the Colgate I settlement agreement
required future RAA Annuities to be offset by Colgate I settlement
proceeds, the Plan itself was not amended prior to applying the
offsets to the payments; and if the Plan were retroactively amended
now, that would result in an impermissible cutback in benefits
under ERISA Section 204(g) and IRC Section 411(d)(6).
On June 4, 2015, in a 16-page letter signed by Defendant Marsili,
the Committee denied McCutcheon's appeal. In a March 14, 2016,
letter from McCutcheon to the Committee, she again raised the
Committee's failure to respond adequately to her prior request for
documents. On April 25, 2016, the Committee provided four
additional documents.
McCutcheon commenced the action on June 3, 2016, asserting five
causes of action. The Magistrate Judge overseeing pre-trial
proceedings bifurcated the case and ordered only Counts I and II to
proceed. On July 27, 2017, the Court granted the Plaintiffs'
motion for class certification as to Count II and appointed
McCutcheon as class representative of a class consisting of: Any
person who, under any of Appendices B, C or D of the Plan, is
entitled to a greater benefit than his or her Accrued Benefit as
defined in Plan Section 1.2, provided such person received a lump
sum payment from the Plan, and the beneficiaries and estates of any
such person.
Given the class definition, each Class Member (1) was a Colgate
employee in July 1989 who elected to continue making contributions
under the Grandfathered Formula as set forth in Appendices A
through D of the Plan until separating from the company, (2)
received a lump sum payment from the Plan in the amount of his or
her accrued benefit plus contributions under the Grandfathered
Formula upon separation and (3) is entitled to a greater benefit
than his or her Accrued Benefit as defined in Plan Section 1.2,
which defines Accrued Benefit in part as the "Actuarial Equivalent
of the Member's Account." The Plaintiffs estimate that the Class
consists of approximately 1,200 individuals, with claims totaling
approximately $300 million.
The Defendants now move for summary judgment on Counts I and II of
the Complaint, which allege, respectively, that they failed to
comply with ERISA and accompanying regulations during the
administrative phase of the case, and that the Plaintiffs were
wrongfully denied residual annuity benefits under the RAA and
incorporated Plan provisions.
Judge Schofield granted in part and denied in part the Defendants'
motion for summary judgement. The Judge granted the motion as to
Count I, Count II's Error 2, and Count II's Error 4 as to the
Class. The Judge denied Count II's Error 1 and Count II's Error 4
as to McCutcheon.
Among other things, the Judge opines that in broad terms, Error 1
involves how to determine who is entitled to an RAA Annuity
benefit, and the amount of any such benefit. The Defendants seek
summary judgment, arguing that eligibility and the amount are
determined by comparing the PRA lump sum payment Age 65 AE of LS
paid (defined above as the "Age 65 actuarial equivalent of the lump
sum paid") with the Grandfathered Benefit. The Plaintiffs oppose,
arguing that the determination is made by comparing the Age 65 AE
of LS paid with the greater of the Grandfathered Benefit or the
Actuarial Equivalent of the Member's Accrued Benefit plus
Contributions. All agree that if the Age 65 AE of LS paid is
smaller than the second amount, then the difference is the RAA
Annuity benefit.
Based on a plain reading of the RAA, the Plaintiffs have the better
argument. The Defendants' interpretation is erroneous as a matter
of law because the PRA lump sum is not the same as the Appendix C
Section 2(b)(ii) benefit. First, on the most basic level, the
words are different, suggesting that the drafters of the Plan meant
to indicate two different things. Second, the Age 65 AE of the LS
paid is a computational construct created to facilitate the
computation under the RAA. Third, a critical difference that flows
from this distinction, and the reason the amounts are not the same,
is that they are based on different interest rate assumptions. In
contrast, the Appendix C Section 2(b)(ii) benefit, which is an
actual benefit, is based on the higher 20+1% rate because that is
the interest rate assumption that the Defendants actually used (for
Participants paid before Jan. 1, 2000) to project to an age 65
account value and then convert it to an age 65 annuity.
Accordingly, the Defendants are denied summary judgment on Error
1.
In addition, summary judgment is denied to the Defendants on Error
4 as to McCutcheon alone, because the legal arguments are not
sufficiently developed to determine which party has the better
argument applying the de novo standard of review applicable to
McCutcheon's claim.
The Judge denied as moot the Defendants' request for oral argument,
as is the Plaintiffs' request for a pre-motion conference on the
application to file a surreply.
A full-text copy of the District Court's July 10, 2020 Opinion &
Order is available at https://bit.ly/3dTtqv7 from Leagle.com.
COMCAST CORP: Can Compel Arbitration in Baker Suit
--------------------------------------------------
In the case, BRIAN BAKER, on behalf of himself and all others
similarly situated, Plaintiff, v. COMCAST CORPORATION, Defendant,
Case No. 2:19-cv-00652 (D. Utah), Judge Howard C. Nielson, Jr. of
the U.S. District Court for the District of Utah granted Comcast's
motion to compel arbitration on an individual basis.
In December 2015, Mr. Baker contracted with Comcast for residential
internet, cable, and phone services. On July 11, 2016, a Comcast
salesperson offered Mr. Baker an upgraded package of services,
called "XFINITY Extreme Triple Play," that included high-speed
internet, a phone line, and access to all premium television
channels.
As part of Comcast's strategy to compete with Google Fiber, a
high-speed fiber-optic data service, the salesperson offered the
package for a "lifetime price" -- a monthly rate that would never
increase. Mr. Baker accepted the offer, signing a "Service Order"
that stated in part that the services ordered are subject to the
terms and conditions in Comcast's Agreement for Residential
Services terms as provided to him at installation or otherwise,
which terms he accepts by signing or by use of Comcast services.
Comcast's Agreement for Residential Services, also known as the
Subscriber Agreement, includes a broadly worded arbitration clause
requiring that legal disputes between the customer and Comcast be
resolved through arbitration on an individual basis unless the
customer opts out of this requirement within thirty days of
signing. Mr. Baker did not opt out.
In June 2019, Comcast allegedly breached its "lifetime price"
guarantee, increasing Mr. Baker's bill by $10 per month and
increasing the bills of other customers who had purchased XFINITY
Extreme Triple Play by as much as $50 per month. Instead of
seeking to resolve the matter through arbitration, Mr. Baker filed
the putative class action against Comcast in state court. Comcast
removed the action to the District Court, then filed its motion
seeking to compel Mr. Baker to arbitrate his claim on an
individual, non-class basis.
In interpreting the validity and scope of the arbitration clause
invoked by Comcast, Judge Nielson applies principles of contract
law as recognized by Utah, the State where the parties allegedly
agreed to the clause. The Judge finds that Comcast and Mr. Baker
did enter a binding agreement to arbitrate that applies to claims
of the particular type raised by Mr. Baker.
At the time Mr. Baker signed the Service Order, the Subscriber
Agreement contained an arbitration provision. In light of Mr.
Baker's signature on the Service Order and the clear text of that
Order and the Subscriber Agreement, the Judge rejects Mr. Baker's
claim that he never saw or agreed to the arbitration clause.
In addition, when Mr. Baker signed the 2016 Service Order and
agreed to the Service Agreement, including the arbitration clause,
the agreement was plainly supported by consideration: in exchange
for signing the Service Order and agreeing to the terms of the
Subscriber Agreement, Mr. Baker received XFINITY Extreme Triple
Play, which he concedes was "an improvement" over his previous
service. Because the arbitration clause was not imposed
unilaterally and was supported by consideration, the Judge also
rejects Mr. Baker's argument that the clause is "null and void."
The Judge also finds that the arbitration provision in the
Subscriber Agreement requires arbitration of the "particular type
of controversy" raised by Mr. Baker. Under that provision, the
Parties agreed to arbitrate any Dispute involving him and Comcast.
"Dispute" is defined broadly to include claims that are the subject
of purported class action litigation in which one is not a member
of a certified class. There can be no doubt that the plain terms
of the agreement thus cover the claims for breach of contract
brought by Mr. Baker on behalf of himself and the proposed class.
For the foregoing reasons, Judge Nielson must therefore "rigorously
enforce" the arbitration clause according to its terms.
Accordingly, the Judge granted Defendant Comcast's motion to compel
arbitration, and dismissed with prejudice the Plaintiff's action.
A full-text copy of the District Court's July 10, 2020 Memorandum
Decision & Order is available at https://bit.ly/3ojUokq from
Leagle.com.
CONNER LOGISTICS: Court Grants Prelim. OK to Class Deal in Figueroa
-------------------------------------------------------------------
In the case UBALDO FIGUEROA, an individual, on behalf of himself,
and on behalf of all persons similarly situated, Plaintiff, v.
CONNER LOGISTICS, INC., a California corporation; and DOES 1
through 50, inclusive, Defendants, Case No. 1:19-cv-01004-NONE-BAM
(E.D. Cal.), Judge Dale Drozd of the U.S. District Court for the
Eastern District of California has adopted in full Magistrate Judge
Barbara McAuliffe's Findings and Recommendations and thus granted
the Plaintiff's Motion for Preliminary Approval of Class
Settlement.
Magistrate Judge McAuliffe made these recommendations:
(a) Preliminarily approval of the Joint Stipulation of Class
Settlement and Release of Claims based on the Court's
preliminary determination that the settlement agreement is
within the range of possible final approval.
(b) That the Class be conditionally certified for settlement
purposes only. The Class is defined as all individuals who
were California residents who worked for Defendant, Conner
Logistics, Inc. in California as truck drivers at any time
during the Class Period. The Class Period is Aug. 11, 2011
and up to and including July 11, 2016.
(c) That, pursuant to the Stipulation, the FLSA collective
action be certified for settlement purposes only. The
"FLSA Opt-In Members" are defined as those Participating
Class Members who worked for Defendant during the period
Aug. 11, 2012 to July 11, 2016 and who timely execute and
return the FLSA Consent Form.
(d) That Plaintiff Figueroa be provisionally appointed as the
representative of the Class and FLSA members.
(e) That Blumenthal, Nordrehaug & Bhowmik be provisionally
appointed as the Class Counsel.
(f) That the Notice of Pendency Class Action Settlement and
Hearing Date for Court Approval be approved as to form and
content. She also recommended that the FLSA Consent Form
be approved and the Court orders the mailing of the Notice
Materials by first class mail, pursuant to the terms set
forth in the Stipulation.
(g) That KCC Class Action Services be appointed as the
Settlement Administrator.
(h) That the proposed procedure for exclusion from the
Settlement be preliminarily approved. Any Class Member may
choose to opt out of and be excluded from the Class as
provided in the Class Notice by following the instructions
for requesting exclusion from the Class that are set forth
in the Class Notice. All requests for exclusion must be
postmarked or received by the deadline set forth in the
Class Notice.
(i) That a final approval hearing be set for Jan. 15, 2021 at
9:00 a.m.
A full-text copy of Judge Drozd's Aug. 7, 2020 Order is available
at https://bit.ly/2HzMcvq from Leagle.com.
A full-text copy of the Court's July 10, 2020 Findings &
Recommendations is available at https://bit.ly/3jt0gUS from
Leagle.com.
CONOPCO INC: Court Dismisses Schulte's AntiPerspirant Class Suit
-----------------------------------------------------------------
In the case, KAREN SCHULTE, individually and on behalf of all
others similarly situated, Plaintiffs, v. CONOPCO, INC, d/b/a
Unilever, WALGREEN CO., CVS PHARMACY, INC., WALMART, INC., TARGET
CORPORATION, SCHNUCK MARKETS, INC., and DIERBERGS MARKETS, INC.,
Defendants, Case No. 4:19 CV 2546 RWS (E.D. Mo.), Judge Rodney W.
Sippel of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, granted the Defendants' motion to
dismiss the Plaintiff's complaint.
Plaintiff Schulte filed the proposed class action lawsuit in state
court. She alleges in her complaint that the Defendants have
violated the Missouri Merchandising Practices Act ("MMPA") by
engaging in the discriminatory marketing of men and women's
antiperspirants.
Defendant Conopco, doing business as Unilever, manufactures
personal care products including antiperspirants. Unilever makes a
Dove brand product line of antiperspirants for women under the name
"Advanced Care." Plaintiff Schulte alleges in her complaint that
the product is sold in packaging which is more "feminine" and
available in "feminine" scents (15 scents and varieties). The
product is marketed to women in advertising and is found for sale
in the "women's" section of stores.
Unilever also makes a Dove brand antiperspirant product line for
men called "Men + Care." According to Schulte's complaint the
product is marketed in more "masculine" packaging and comes in a
variety of "masculine" scents. It is marketed to men and sold in
the "men's" section of stores.
Schulte alleges that the women's and men's brands contain the same
active ingredients. However, the men's brand does not contain a
minor ingredient, hydroxyethyl urea, found in the women's brand and
the men's brand contains multiple additional ingredients. In
addition, the men's brand provides 2.7 ounces of product while the
women's brand contains slightly less, 2.6 ounces of product.
Schulte alleges that she purchased six sticks of Advanced Care from
six different sellers, the Retail Defendants, in June of 2019. On
information and belief, Schulte alleges that the Retail Defendants
were also selling Dove's Men + Care at the time of her purchases.
On information and belief, Schulte alleges that the price for the
women's Advance Care product was higher than the men's Men + Care
product at each of the Retail Defendants' stores ranging from 40
cents to $1 higher per stick of antiperspirant.
Schulte alleges that despite containing the same active ingredient,
and the women's brand containing slightly less product, the women's
Advanced Care was uniformly more expensive than the Men + Care.
She alleges that it is a gender-discriminating pricing scheme, a
"pink tax," that is arbitrary and unjustified and constitutes an
unfair practice in violation of the MMPA.
Schulte seeks to certify the case as a class action consisting of
all Missouri consumers, who, within the Class Period, purchased the
'Dove' -- brand 'Advance Care' Antiperspirant from any of the
Retail Defendants in the State of Missouri. The Class Period is
defined as beginning five years prior to the filing of the
lawsuit.
Defendant Unilever removed the case from state court pursuant to
the Class Action Fairness Act. The Defendants then filed a joint
motion to dismiss asserting that Schulte's complaint fails to state
a claim under the MMPA. Schulte opposes the motion.
Judge Sippel finds that the Missouri Human Rights Act provision
Schulte relies upon is the ban upon discrimination in the provision
of services and privileges made available in any place of public
accommodations based on, inter alia, sex. Nothing in that statute
addresses the pricing of products nor has any court interpreted
that statute to do so. Men and women are may purchase any brand of
Dove antiperspirant which undermines any discriminatory
accommodation claim.
Nothing in the Robinson-Patman Act applies to Schulte's claims in
the present lawsuit. Men and women are may purchase any Dove
product for the same price. Nor does the pricing difference
between the products marketed to men and marketed to women affect
competition in the marketplace.
Similarly, Schulte's reliance of the Federal Trade Commission
("FTC")'s enforcement of the ECOA is misplaced. The Equal Credit
Opportunity Act ("ECOA") makes it unlawful for a creditor to
discriminate against any individual based on, among other
characteristics, sex. The ECOA is not violated because Unilever is
not acting as a creditor in the sale of its antiperspirants.
Finally, Schulte's discriminatory pricing claim does not also meet
the FTC's requirement that the practice be deemed unfair by a
public policy that is well established by formal sources such a
statute, judicial decisions, or the Constitution, as interpreted by
the courts, rather than being ascertained from a general sense of
national values.
The Judge concludes that Schulte's complaint fails to allege any
facts that support a claim the sales of the Dove antiperspirants at
issue were extrinsically discriminatorily deceptive or unfair.
There is no claim that the ingredients of the antiperspirants were
hidden or inaccurate or that the product did not contain what was
represented on the packaging. Women are able to purchase any of
the Dove antiperspirants for the same price as men regardless of
the scent or variety. Although Schulte has highlighted a pervasive
issue of women being subjected to questionable pricing practices in
the marketplace for similar of products and services marketed to
men and women, her claims are not amenable to judicial resolution.
Her remedy lies with legislation not litigation.
As a result, Judge Sippel granted the Defendants' motion to dismiss
Schulte's complaint.
A full-text copy of the District Court's July 17, 2020 Memorandum &
Order is available at https://bit.ly/3jmXjoU from Leagle.com.
CONOPCO INC: Schulte AntiPerspirant Suit Denied Remand to State Ct.
-------------------------------------------------------------------
Judge Rodney Sippel of the U.S. District Court for the Eastern
District of Missouri, Eastern Division, denied remand of the case
KAREN SCHULTE, individually and on behalf of all others similarly
situated, Plaintiffs, v. CONOPCO, INC, d/b/a Unilever, WALGREEN
CO., CVS PHARMACY, INC., WALMART, INC., TARGET CORPORATION, SCHNUCK
MARKETS, INC., and DIERBERGS MARKETS, INC., Defendants, Case No.
4:19 CV 2546 RWS (E.D. Mo.) to state court.
Plaintiff Schulte filed the proposed class action lawsuit in state
court. She alleges in her complaint that the Defendants have
violated the Missouri Merchandising Practices Act ("MMPA") by
engaging in the discriminatory marketing of men and women's
antiperspirants.
Defendant Conopco, doing business as Unilever, manufactures
personal care products including antiperspirants. Unilever makes a
Dove brand product line of antiperspirants for women under the name
"Advanced Care." Plaintiff Schulte alleges in her complaint that
the product is sold in packaging which is more "feminine" and
available in "feminine" scents (15 scents and varieties). The
product is marketed to women in advertising and is found for sale
in the "women's" section of stores.
Unilever also makes a Dove brand antiperspirant product line for
men called "Men + Care." According to Schulte's complaint the
product is marketed in more "masculine" packaging and comes in a
variety of "masculine" scents. It is marketed to men and sold in
the "men's" section of stores.
Schulte alleges that the women's and men's brands contain the same
active ingredients. However, the men's brand does not contain a
minor ingredient, hydroxyethyl urea, found in the women's brand and
the men's brand contains multiple additional ingredients. In
addition, the men's brand provides 2.7 ounces of product while the
women's brand contains less, 2.6 ounces of product.
Schulte alleges that she purchased six sticks of Advanced Care from
six different sellers, the Retail Defendants, in June 2019. On
information and belief, Schulte alleges that the Retail Defendants
were also selling Dove's Men + Care at the time of her purchases.
On information and belief, Schulte alleges that the price for the
women's Advance Care product was higher than the men's Men + Care
product at each of the Retail Defendants' stores ranging from 40
cents to $1.00 higher per stick of antiperspirant.
Schulte alleges that despite containing the same active ingredient,
and the women's brand containing slightly less product, the women's
Advanced Care was uniformly more expensive than the Men + Care.
Schulte alleges that it is a gender-discriminating pricing scheme,
a "pink tax," that is arbitrary and unjustified and constitutes an
unfair practice in violation of the MMPA.
Schulte seeks to certify the case as a class action consisting of
all Missouri consumers, who, within the Class Period, purchased the
'Dove' - brand 'Advance Care' Antiperspirant from any of the Retail
Defendants in the State of Missouri. The Class Period is defined
as beginning five years prior to the filing of the lawsuit.
Defendant Unilever removed the case from state court under Class
Action Fairness Act. After removal, the District Court ordered the
parties to brief whether permissive or mandatory remand was
required under a CAFA jurisdictional exception in 28 U.S.C. Section
1332(d)(3) or (4). In response, Schulte filed a motion to remand
under the jurisdictional exception in Section 1332(d)(4)(A). The
Defendants (with the exception of Walgreen Co. who has not been
served) oppose remand and argue that Schulte has failed to meet her
burden of proof to establish that the jurisdictional exception
applies.
Judge Sippel finds that Schulte's proposed analogy of equating
consumers with residents is unavailing. Residents are not the same
as citizens. Schulte's assertion that her proposed class is
composed of at least two-thirds of Missouri citizens cannot rest on
guesswork. She has failed to provide "sound evidence" that
two-thirds of the class are citizens and it is difficult to
conceive how she could identify all the people who purchased the
Advance Care products in Missouri over the past five years and then
determine their citizenship. She has also failed to limit her
proposed class to Missouri citizens in her complaint. Moreover,
Schulte cannot establish a CAFA jurisdiction exception by filing an
amended complaint that redefines her proposed class as Missouri
citizens after the case has been removed. Because Schulte is not
entitled to the benefit of doubt to presume that two-thirds of the
class are Missouri citizens she cannot meet her burden to establish
an exception to jurisdiction in the Court under CAFA.
Likewise, Schulte fails to establish another requirement for her
proposed jurisdictional exception. She argues that two of the
defendants, Schnucks Markets, Inc. and Dierbergs Markets, Inc., are
Missouri citizens whose alleged conduct forms a significant basis
for the claims and from whom significant relief is sought by the
class members. Her complaint does not support the proposition.
Based on the complaint it is Unilever's control of pricing that is
the primary focus for the claims of the proposed class. Schnucks
and Dierbergs are the conduits passing that pricing on to the
consumer. They are peripheral Defendants.
Moreover, Schulte does not seek significant relief from Schnucks
and Dierbergs. The Defendants have provided information regarding
the sales of their Advance Care products in Missouri from the
Retail Defendants from 2014 through 2018. Total sales in that
period were $4,883,434. Dierbergs accounted for $71,655 or 1.5%
and Schnucks accounted for $158,108 or 3.2% of gross sales. These
figures include the wholesale cost of the product that would be
paid to Unilever resulting in a far lower share of the sales
proceeds attributable to Schnucks and Dierbergs. As a result,
these figures reveal the proposed class does not seek significant
relief from Schnucks and Dierbergs compared to the relief sought
from Unilever and the other Defendants.
Based on the foregoing, Judge Sippel concludes that Schulte has
failed to meet her burden of proof to establish a jurisdictional
exception under Section 1332(d)(4)(A). Accordingly, the Judge
denied the Plaintiff's motion to remand.
A full-text copy of the District Court's July 17, 2020 Memorandum &
Order is available at https://bit.ly/3dW8TWY from Leagle.com.
CREDIT MANAGEMENT: Pederson Files Placeholder Class Status Bid
--------------------------------------------------------------
In the class action lawsuit styled as BREANNA PEDERSON,
Individually and on Behalf of All Others Similarly Situated, v.
CREDIT MANAGEMENT, L.P., Case No. 2:20-cv-01417-PP (E.D. Wisc.),
the Plaintiff filed a "placeholder" motion for class certification
in order to prevent against a "buy-off" attempt, a tactic
class-action defendants sometimes use to attempt to prevent a case
from proceeding to a decision on class certification by attempting
to "moot" the named plaintiff's claims by tendering the plaintiff
individual (but not classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
herself as the class representative, and appoint her attorneys as
class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
A copy of the Plaintiff's Placeholder motion to certify class is
available from PacerMonitor.com at https://bit.ly/2FzL5vs at no
extra charge.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
D&A SERVICES: Pederson Files Placeholder Class Certification Bid
----------------------------------------------------------------
In the class action lawsuit styled as BREANNA PEDERSON,
Individually and on Behalf of All Others Similarly Situated, v. D&A
SERVICES, LLC, d/b/a IL D&A SERVICES, LLC, and BUREAUS INVESTMENT
GROUP PORTFOLIO NUMBER 15, LLC, Case No. 2:20-cv-01414-NJ (E.D.
Wisc.), the Plaintiff filed a "placeholder" motion for class
certification in order to prevent against a "buy-off" attempt, a
tactic class-action defendants sometimes use to attempt to prevent
a case from proceeding to a decision on class certification by
attempting to "moot" the named plaintiff's claims by tendering the
plaintiff individual (but not classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
herself as the class representative, and appoint her attorneys as
class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
A copy of the Plaintiff's Placeholder motion to certify class is
available from PacerMonitor.com at https://bit.ly/3mrQVzo at no
extra charge.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
DARMOUTH COLLEGE: $14MM Class Deal in Rapuano Gets Final Approval
-----------------------------------------------------------------
In the case, KRISTINA RAPUANO, VASSIKI CHAUHAN, SASHA BRIETZKE,
ANNEMARIE BROWN, ANDREA COURTNEY, MARISSA EVANS, JANE DOE, JANE DOE
2, AND JANE DOE 3, Plaintiffs, v. TRUSTEES OF DARTMOUTH COLLEGE,
Defendant, Civil Action No. 1:18-cv-01070-LM (D. N.H.), Judge
Landya B. McCafferty of the U.S. District Court for the District of
New Hampshire granted the Plaintiffs' Motion for Final Approval of
the Proposed Class Settlement and the Plaintiffs' Motion for
Attorneys' Fees, Costs, and Service Awards.
On Aug. 6, 2019, the parties reached a settlement agreement,
subject to the approval of the Court, as a result of intensive,
non-collusive, arm's-length negotiations. On Sept. 25, 2019, the
Plaintiffs filed a Motion for Preliminary Approval of Class Action
Settlement. On Sept. 18, 2019, the Defendant served the Class
Action Fairness Act notice. On March 16, 2020, the Defendant
served a Supplemental CAFA Notice. On Jan. 29, 2020, the Court
granted the Plaintiffs' Motion for Preliminary Approval of Class
Action Settlement.
On Feb. 12, 2020, the Class Counsel and the Settlement
Administrator sent the Notice of Proposed Settlement of Class
Action. On July 9, 2020, the Court held a fairness hearing
regarding the parties' class action settlement.
Having considered the Plaintiffs' motion for Final Approval of the
Class Settlement and the statements made at the fairness hearing,
Judge McCafferty granted the Plaintiffs' Motion for Final Approval
of the Proposed Class Settlement and the Plaintiffs' Motion for
Attorneys' Fees, Costs, and Service Awards. The Judge affirmed the
Court's findings in its Preliminary Approval Order.
For purposes of settlement only, the Judge further affirmed the
Court's determinations in the Preliminary Approval Order and
finally certified, pursuant to Rule 23(a) and (b)(3) of the Federal
Rules of Civil Procedure, the Action as a class action, composed of
the following individuals:
A. All current and former women graduate students at Dartmouth who
meet any of the following criteria:
i. Between April 1, 2012 and Aug. 31, 2017 were graduate
advisees of one or more of Todd Heatherton, William Kelley,
and/or Paul Whalen ("Three Professors");
ii. Between April 1, 2012 and Aug. 31, 2017 were teaching or
research assistants for one or more of the Three
Professors;
iii. Were graduate students in the Psychological and Brain
Sciences Department and co-authored papers with one or
more of the Three Professors based on research conducted
between April 1, 2012 and Aug. 31, 2017; or
iv. Were graduate students in the Psychological and Brain
Sciences Department between March 31, 2015 and Aug. 31,
2017 who do not fit within categories (i)-(iii), but who
attested that they experienced dignitary, emotional,
educational and/or professional harm during this period
as a result of the misconduct of one or more of the Three
Professors.
B. All current and former women undergraduate students at
Dartmouth who, between April 1, 2012 and Aug. 31, 2017, worked
as research assistants for one or more of the Three Former
Professors. The research assistants include individuals
working on an honors thesis or independent research study in
one or more of the Three Former Professors' labs.
The Judge finally approved the terms of the Agreement and the Plan
of Allocation. The Defendant will pay the Class Settlement Amount
of $14 million in the manner set forth in the Settlement Agreement.
It will implement the programmatic relief described in Exhibit A
to the Agreement.
The Class Counsel will receive attorneys' fees of $4.9 million from
the Class Settlement Amount. The Class Counsel's litigation
expenses ($125,756.42) will be deducted from the Class Settlement
Amount.
The Settlement administration costs incurred by the Settlement
Administrator, Rust Consulting, Inc. (in an amount not to exceed
$24,217) and the Independent Claims Expert, Maria C. Walsh, Esq.
(in an amount not to exceed $85,000) will be deducted from the
Class Settlement Amount.
The Plaintiffs will each receive service awards of $75,000 for
their contributions to the litigation and their services to the
Class, including incurring the risks and burdens of litigation on
behalf of the Class Members.
The remainder of the Class Settlement Amount will be distributed to
the Plaintiffs and Settlement Class Members as detailed in the Plan
of Allocation.
The Judge approved of the cy pres distribution provided for in the
Settlement to The New Hampshire Coalition Against Domestic and
Sexual Violence.
The action is dismissed with prejudice as to all other issues and
as to all parties and claims.
A full-text copy of the District Court's July 10, 2020 Final Order
is available at https://bit.ly/37wsQm5 from Leagle.com.
DCM SERVICES: Voeks Files Placeholder Class Certification Bid
-------------------------------------------------------------
In the class action lawsuit styled as GEORGE VOEKS, Individually,
as Representatives of the Estate of JULIE VOEKS, and on Behalf of
All Others Similarly Situated, v. DCM SERVICES, LLC, Case No.
2:20-cv-01418-PP (E.D. Wisc.), the Plaintiff filed a "placeholder"
motion for class certification in order to prevent against a
"buy-off" attempt, a tactic class-action defendants sometimes use
to attempt to prevent a case from proceeding to a decision on class
certification by attempting to "moot" the named plaintiff's claims
by tendering the plaintiff individual (but not classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
himself as the class representative, and appoint his attorneys as
class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
A copy of the Plaintiff's Placeholder motion to certify class is
available from PacerMonitor.com at https://bit.ly/35LhIRq at no
extra charge.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
DELTA AIR: Ninth Circuit Affirms Ruling in McGarry Class Suit
-------------------------------------------------------------
In the case, TERESA J. McGARRY, on behalf of herself and all others
similarly situated, Plaintiff-Appellant, v. DELTA AIR LINES, INC.;
[24]7.AI, INC., Defendants-Appellees, Case No. 19-55790 (9th Cir.),
the U.S. Court of Appeals for the Ninth Circuit affirmed the
district court judgment that all of McGarry's claims were either
insufficiently pled or preempted by the Airline Deregulation Act
("ADA").
In 2017, hackers gained access to the personal data of customers
who booked flights through the website of Defendant Delta.
Plaintiff McGarry then filed a putative class action against Delta
and Defendant [24]7.ai, a technology company that provided services
to Delta. The district court found all of McGarry's claims were
either insufficiently pled or preempted by the ADA. She asserts it
was error.
After reviewing the record, briefs, and applicable law, the Ninth
Circuit concludes the thorough and well-written orders of the
district court correctly articulate and apply the law to the
factual allegations of the case. Accordingly, for the reasons
stated by the district court, the Ninth Circuit affirmed the trial
court ruling.
A full-text copy of the Ninth Circuit's July 17, 2020 Memorandum is
available at https://bit.ly/3osP2Dy from Leagle.com.
DEUTSCHE BANK: Five Deals in GSE Bonds Antitrust Suit Gets Final OK
-------------------------------------------------------------------
Judge Jed S. Rakoff of the U.S. District Court for the Southern
District of New York granted the motion for final approval of the
five settlements in the case, IN RE GSE BONDS ANTITRUST LITIGATION,
Case No. 19-cv-1704 (JSR) (S.D. N.Y.).
The putative class action alleges a conspiracy among several large
banks to fix the secondary market prices of GSE bonds.
Between October 2019 and February 2020, the Court preliminarily
approved five separate settlements between the Plaintiffs and the
Defendants in the action. The settlements were between the
Plaintiffs and (1) Deutsche Bank Securities, Inc.; (2) First
Tennessee Bank, N.A. and FTN Financial Securities Corp.; (3)
Goldman Sachs; (4) Barclays Capital, Inc.; and (5) all remaining
Defendants ("Global Settlement"). The parties now seek final
approval of the same settlements.
Co-Lead Counsel Scott+Scott Attorneys at Law LLP and Lowey
Dannenberg, P.C. move for an award of attorneys' fees and payments
of litigation expenses in connection with their representation of
the settlement class. Named Plaintiffs City of Birmingham
Retirement and Relief System, Electrical Workers Pension System
Local 103, I.B.E.W. and Local 103, I.B.E.W. Health Benefit Plan
("I.B.E.W."), and Joseph Torsella, in his official capacity as
Treasurer of the Commonwealth of Pennsylvania, move for awards for
their service as the class representatives in the Action.
The Court in its opinion and orders providing the basis for its
preliminary approval of the five settlements has already explained
in detail why Federal Rule of Civil Procedure 23 and Grinnell
factors support approval of each of the settlements. Judge Rakoff
re-adopts that analysis, and limits his focus to those few
developments since the time of the preliminary approvals that
impact that analysis. The subsequent developments only further
support the fairness, reasonableness, and adequacy of the
settlements. The Judge finds that all five settlements meet the
requirements of Rule 23(e)(2), that the notice was the best
practicable under the circumstances, and that certification of the
class for purposes of judgment is warranted. Judge Rakoff thus
granted final approval to the five proposed settlements.
Turning to the Motion for Attorneys' Fees and Reimbursement of
Litigation Expenses, Judge Rakoff holds that five of the six
Goldberger factors in the case weigh in favor of the proposed fees'
reasonableness, and one weighs only slightly against it.
Accordingly, the Judge finds the proposed attorneys' fees of 20%,
or $77.3 million, is reasonable and merits approval.
In addition to fees, the Co-Lead Counsel seek reimbursement of
their litigation expenses in the amount of $1,718,773.04, plus
interest on the fee and expense award at the same rate that is
earned by the settlement fund. The majority of Co-Lead Counsel's
expenses were devoted to expert work, which was essential to the
resolution of this complex case. Moreover, the Co-Lead Counsel
kept discovery costs low by using its in-house technology to manage
document production. The remaining expenses for travel and meal
costs, copying costs, and online research, filing and service fees,
and telephone charges were reasonable. The Judge thus awards the
Co-Lead Counsel the requested reimbursement of expenses.
Plaintiffs Birmingham, I.B.E.W., and Pennsylvania Treasury have
moved for awards totaling $400,000 for their service as class
representatives in the Action. Pennsylvania Treasury seeks an
award of $300,000 and Birmingham and I.B.E.W. each seek $50,000.
The Judge has examined Hangley's timesheets and determined that the
work was not duplicative of the Co-Lead Counsel's work, that the
fees are reasonable, and that reimbursement is thus warranted.
Moreover, the Judge finds that Pennsylvania Treasury did an
excellent job in its role as class representative such that it
merits a substantial award beyond its out-of-pocket costs. The
Judge thus finds that the Plaintiffs' requested service awards are
warranted.
At the preliminary approval stage, the Court found that it was
likely to approve the proposed settlements under Rule 23(e)(2) and
certify the class for purposes of judgment. Circumstances since
preliminary approval have only confirmed that final approval and
certification are warranted. Furthermore, the Co-Lead Counsel's
requested attorneys' fees and expenses are reasonable under the
Goldberger factors, and based on both the percentage method and a
cross-check to the lodestar. Finally, the class representatives'
excellent performance in monitoring and contributing to the
successful conclusion of this litigation warrants substantial
service awards. Accordingly, Judge Rakoff granted the motions for
final approval, attorneys' fees and expenses, and service awards.
A full-text copy of the District Court's June 16, 2020 Memorandum &
Order is available at https://bit.ly/2TwYHLn from Leagle.com.
City of Birmingham Retirement and Relief System, Plaintiff,
represented by Vincent Briganti - vbriganti@lowey.com - Lowey
Dannenberg P.C., Amanda F. Lawrence - alawrence@scott-scott.com -
Scott&Scott, Attorneys at Law, LLP, Andrea Farah -
afarah@scott-scott.com - Scott + Scott, L.L.P., Christian Levis -
clevis@lowey.com - Lowey Dannenberg P.C., George A. Zelcs -
gzelcs@koreintillery.com - Korein Tillery, LLC, Johnathan P.
Seredynski - jseredynski@lowey.com - Lowey Dannenberg P.C., Joseph
Peter Guglielmo - JGUGLIELMO@SCOTT-SCOTT.COM -, Scott + Scott,
L.L.P., Justin W. Batten , Scott and Scott Attorneys at Law LLP,
230 Park Ave Fl 17, New York, NY 10169-1820 , Kristen M. Anderson -
KANDERSON@SCOTT-SCOTT.COM - Scott+Scott, Attorneys At Law, LLP,
Margaret Ciavarella MacLean - mmaclean@lowey.com - Lowey Dannenberg
P.C.
Bank of America, N.A. & Merrill Lynch, Pierce, Fenner & Smith Inc.,
Defendants, represented by John E. Schmidtlein -
jschmidtlein@wc.com - Williams & Connelly L.L.P., pro hac vice,
Beth A. Stewart - bstewart@wc.com - Beth Stewart Esq, Jesse T.
Smallwood - jsmallwood@wc.com - Williams & Connolly LLP, Jonathan
Bradley Pitt - jpitt@wc.com - Williams & Connolly LLP & Lauren Anna
Howard - lhoward@wc.com - Williams & Connolly LLP.
Barclays Bank PLC, Defendant, represented by Lawrence Edward
Buterman - lawrence.buterman@lw.com - Latham & Watkins LLP, Lilia
Borislavova Vazova - lilia.vazova@lw.com - Latham & Watkins LLP,
Richard David Owens - richard.owens@lw.com - Latham & Watkins LLP,
Adam Brian Shamah - adam.shamah@lw.com - Latham & Watkins, LLP &
Gregory Stephen Mortenson - gregory.mortenson@lw.com - Latham &
Watkins LLP.
Barclays Capital Inc., Defendant, represented by Lawrence Edward
Buterman , Latham & Watkins LLP, Lilia Borislavova Vazova , Latham
& Watkins LLP, Richard David Owens , Latham & Watkins LLP, Adam
Brian Shamah , Latham & Watkins, LLP, Alexis Kellert , Latham &
Watkins LLP & Gregory Stephen Mortenson , Latham & Watkins LLP.
Deutsche Bank AG & Deutsche Bank Securities Inc., Defendants,
represented by John Terzaken - john.terzaken@stblaw.com - Simpson
Thacher & Bartlett LLP, Abram Jeremy Ellis - aellis@stblaw.com -
Simpson Thacher & Bartlett LLP, Adrienne Vollmer Baxley -
adrienne.baxley@stblaw.com - Simpson Thacher & Bartlett LLP &
Jonathan Porter - jporter@stblaw.com - Simpson Thacher & Bartlett
LLP.
Goldman Sachs & Co. LLC, Defendant, represented by Matthew Joseph
Porpora - porporam@sullcrom.com , Richard C. Pepperman, II -
peppermanr@sullcrom.com , Jonathan Sloan Carter -
carterjo@sullcrom.com of Sullivan & Cromwell LLP.
ECO SCIENCE: Class Settlement in Bell Suit Gets Prelim. Approval
----------------------------------------------------------------
Eco Science Solutions, Inc., (OTCBB: ESSI) (the "Company") a
vertically focused consumer engagement and enterprise software
provider, announced on Oct. 1 that the Company has received
preliminary approval of the settlement of previously-disclosed
stockholder derivative actions brought by Plaintiffs Ian Bell and
Marc D'Annunzio, and pending in the United States District Court
for the District of Hawaii (the "Hawaii Actions"). The proposed
settlement releases all claims asserted against the Company and the
named defendants in the Hawaii Actions. The proposed settlement
remains subject to court approval and customary conditions.
"Our Leadership Team is pleased to have worked through this
settlement while we continue to develop our business with the goal
of restoring shareholder value and confidence," said Jeffery
Taylor, Eco Science Solutions Chief Executive Officer.
About Eco Science Solutions*
Headquartered in Maui, Hawaii, with operations in Southern
California, Eco Science Solutions, Inc. is an enterprise technology
Company delivering solutions to the multibillion-dollar health and
wellness industry. The Company continues to develop its Herbo
Platform as a premier consumer engagement and enterprise
application for health, wellness and alternative medicine
businesses.
The Herbo platform is a 360-degree ecosystem for business location,
communications between consumers and business operators, inventory
management / selection, payment facilitation, delivery arrangement
and unitized accounting.
*Eco Science Solutions, Inc. is not in the business of growing,
manufacturing, or distributing cannabis.
To view the notice describing the proposed settlement and the
settlement agreement, please visit
www.useherbo.com/essi-classaction-settlement/ [GN]
ENERGIZER HOLDINGS: Court Enters Judgment in Manzo Class Suit
-------------------------------------------------------------
In the case, ESPERANZA LOPEZ MANZO, Plaintiff, v. ENERGIZER
HOLDINGS, INC.; ENERGIZER MANUFACTURING, INC.; and ENERGIZER, LLC,
Defendants, Case No. CV 19-2844 DMG (ASx) (C.D. Cal.), Judge Dolly
M. Gee of the U.S. District Court for the Central District of
California entered judgement in favor of the Defendants and against
the Plaintiff.
The Court has granted with prejudice the Defendants' motion to
dismiss Plaintiff Manzo's Third Amended Class Action Complaint by
order dated July 17, 2020.
A full-text copy of the District Court's July 17, 2020 Judgment is
available at https://bit.ly/2HENBAU from Leagle.com.
ENHANCED RECOVERY: Gordon Files Placeholder Class Status Bid
------------------------------------------------------------
In the class action lawsuit styled as SARAH GORDON, Individually
and on Behalf of All Others Similarly Situated, v. ENHANCED
RECOVERY COMPANY LLC, Case No. 2:20-cv-01416-SCD (E.D. Wisc.), the
Plaintiff filed a "placeholder" motion for class certification in
order to prevent against a "buy-off" attempt, a tactic class-action
defendants sometimes use to attempt to prevent a case from
proceeding to a decision on class certification by attempting to
"moot" the named plaintiff's claims by tendering the plaintiff
individual (but not classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
herself as the class representative, and appoint her attorneys as
class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
A copy of the Plaintiff's Placeholder motion to certify class is
available from PacerMonitor.com at https://bit.ly/3cbervJ at no
extra charge.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
ADEMI & O'REILLY
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
EXTENDICARE WEST: Thomson Rogers Files Class Action Proceeding
--------------------------------------------------------------
Thomson Rogers has issued a class action proceeding claiming $15
million in damages on behalf of residents of Extendicare West End
Villa and their families.
Extendicare West End Villa ("West End Villa") is a long-term care
home owned by Extendicare (Canada) Inc., located in Ottawa,
Ontario. At least 16 residents at West End Villa have died as a
result of contracting COVID-19 and related illnesses.
One of the representative plaintiffs is Suzanne Zagallai. Suzanne's
mother, Peggy, is a resident at West End Villa. Peggy contracted
COVID-19 while residing in a shared bedroom at West End Villa and
continues to suffer from on-going illness. Suzanne and Peggy
represent the residents and family members of the victims who have
contracted COVID-19 as a result of the COVID-19 outbreak at West
End Villa.
The outbreak at West End Villa was declared on August 30, 2020. It
is alleged that, despite having ample time to properly implement an
infection prevention and control program, West End Villa failed to
provide personal protective equipment ("PPE") to West End Villa's
staff, as well as to ensure there was an adequate number of staff.
It is also alleged that West End Villa failed to implement
screening measures of its staff and basic social distancing
practices.
The Ottawa Hospital was made interim manager of West End Villa on
September 18, 2020. When asked about the outbreak at West End
Villa, Premier Doug Ford stated: "We've sent in the hospital to
take over the long-term care, but the ownership of these long-term
care companies, they have to take responsibility. And I'm calling
out Extendicare. They have to take responsibility".
On September 19, 2020, CBC published an article documenting
allegations by a West End Villa employee. The employee alleged that
the outbreak at West End Villa could have been avoided if
Extendicare provided adequate PPE, which it has failed to do
throughout the pandemic.
"This is the sixth action Thomson Rogers has advanced on behalf of
residents of a long-term care home in Ontario. It is unacceptable
that six months after the COVID-19 pandemic was first declared and
after we have lost so many elderly victims, that the same issues
continue to repeat themselves at some homes. The families of the
West End Villa residents are frustrated and upset that their loved
ones are suffering and deserve answers," said Stephen Birman, a
partner involved in the class actions.
This class action was issued on September 30, 2020, prior to the
Class Proceedings Act, 1992 amendments coming into force on October
1, 2020. The amendments are expected to make it more difficult for
class actions, such as those against long-term care homes, to be
certified and therefore to proceed. These amendments will pose
significant hurdles for individuals, especially our vulnerable
seniors, to access justice and hold for-profit corporations
accountable going forward.
Suzanne, Peggy and their family, as well as other families of the
victims and survivors of West End Villa, seek compensation for
their tragic losses. They hope that the independent commission into
Ontario's long-term care system and the proposed class action will
result in meaningful change to ensure that a tragedy like this is
never repeated in Ontario's vulnerable long-term care population.
For further information regarding this claim, please contact
Stephen Birman at Thomson Rogers at sbirman@thomsonrogers.com
(416-868-3137) or Lucy Jackson at ljackson@thomsonrogers.com
(416-868-3154). [GN]
FAITH TECHNOLOGIES: Breached ERISA Fiduciary Duties, Laabs Claims
-----------------------------------------------------------------
GENNA B. LAABS, individually, and as representative of a Class of
Participants and Beneficiaries of the Faith Technologies Inc.
401(k) Retirement Plan, v. FAITH TECHNOLOGIES, INC.; BOARD OF
DIRECTORS OF FAITH TECHNOLOGIES, INC.; and JOHN AND JANE DOES 1-30,
Case No. 1:20-cv-01534-WCG (E.D. Wisc., Oct. 2, 2020), alleges that
during the putative Class Period (October 2, 2014 through the date
of judgment), the Defendants breached the duties they owed to the
Plan, to Plaintiff, and to the other participants of the Plan by
(1) authorizing the Plan to pay unreasonably high fees for
recordkeeping and administration (RK&A); (2) failing to
objectively, reasonably, and adequately review the Plan's
investment portfolio with due care to ensure that each investment
option was prudent, in terms of cost; and (3) maintaining certain
funds in the Plan despite the availability of identical or similar
investment options with lower costs.
According to the complaint, the Defendants are ERISA fiduciaries as
they exercise discretionary authority or discretionary control over
the 401(k) defined contribution pension plan -- known as the Faith
Technologies, Inc. 401(k) Retirement Plan -- that the company
sponsors and provides to its employees.
The Plaintiffs bring this action also because of Faith
Technologies' breaches of its fiduciary duties under ERISA,
including the approval, maintenance and recommendation of an
abusive "GoalMaker" asset allocation service furnished by
Prudential Insurance Company of America that served Prudential's
interests.
Faith Technologies touted GoalMaker to participants as a service
that would "guide you to a model portfolio of investments
available, then rebalance[s] your account quarterly to ensure your
portfolio stays on target," and that ,"GoalMaker's ideal
allocations are based on generally accepted financial theories that
take into account the historic returns of different asset classes."
The representations were and remain false. Here "GoalMaker" served
Prudential's interests by funneling participants' retirement
savings into Prudential's own shamelessly overpriced proprietary
investment products.
To remedy, the Plaintiff brings this action on behalf of the Plan
under 29 U.S.C. section 1132(a)(2) to enforce the Defendants'
liability under 29 U.S.C. section 1109(a) to make good to the Plan
all losses resulting from their breaches of fiduciary duty.
The Plaintiff is a resident of the State of Wisconsin and currently
resides in Clintonville, Wisconsin, and during the Class Period,
was a participant in the Plan under 29 U.S.C. section 1002(7). In
September 2018, the Plaintiff commenced employment with Faith
Technologies initially in the position of Apprenticeship Assistant
and then, Talent Development Coordinator.
Faith Technologies, Inc. provides electrical contracting services.
The Company offers automation controls, electrical risk management,
drafting, lighting, and electrical risk management services.[BN]
The Plaintiff is represented by:
Paul M. Secunda, Esq.
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
WALCHESKE & LUZI, LLC
15850 W. Bluemound Rd., Suite 304
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-Mail: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
psecunda@walcheskeluzi.com
FASTLY INC: Jakubowitz Law Reminds of Oct. 26 Motion Deadline
-------------------------------------------------------------
Jakubowitz Law on Oct. 4 disclosed that securities fraud class
action lawsuit has commenced on behalf of shareholders of Fastly
Inc. within the class periods listed below. Shareholders interested
in representing the class of wronged shareholders have until the
lead plaintiff deadline to petition the court. Your ability to
share in any recovery doesn't require that you serve as a lead
plaintiff. For more details and to speak with our firm without cost
or obligation, follow the links below.
Fastly, Inc. (NYSE:FSLY)
CONTACT JAKUBOWITZ ABOUT FSLY:
https://claimyourloss.com/securities/fastly-inc-loss-submission-form/?id=9785&from=1
Class Period : May 6, 2020 - August 5, 2020
Lead Plaintiff Deadline: October 26, 2020
The filed complaint alleges that defendants made materially false
and/or misleading statements and/or failed to disclose that: (1)
Fastly's largest customer was ByteDance, operator of TikTok, which
was known to have serious security risks and was under intense
scrutiny by U.S. officials; (2) there was a material risk that
Fastly's business would be adversely impacted should any adverse
actions be taken against ByteDance or TikTok by the U.S.
government; and (3) as a result, Defendants' positive statements
about the Company's business, operations, and prospects were
materially misleading and/or lacked a reasonable basis.
Jakubowitz Law is vigorous in pursuit of justice for shareholders
who have been the victim of securities fraud. Attorney advertising.
Prior results do not guarantee similar outcomes.
CONTACT:
JAKUBOWITZ LAW
1140 Avenue of the Americas
9th Floor
New York, New York 10036
Tel: (212) 867-4490
Fax: (212) 537-5887 [GN]
FASTLY INC: Levi & Korsinsky Reminds of October 26 Deadline
-----------------------------------------------------------
Levi & Korsinsky, LLP on Oct. 1 disclosed that class action lawsuit
has commenced on behalf of shareholders of Fastly Inc. Shareholders
interested in serving as lead plaintiff have until the deadlines
listed to petition the court. Further details about the cases can
be found at the links provided. There is no cost or obligation to
you.
Fastly, Inc. (NYSE:FSLY)
FSLY Lawsuit on behalf of: investors who purchased May 6, 2020 -
August 5, 2020
Lead Plaintiff Deadline: October 26, 2020
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/fastly-inc-information-request-form?prid=9734&wire=1
According to the filed complaint, during the class period, Fastly,
Inc. made materially false and/or misleading statements and/or
failed to disclose that: (1) Fastly's largest customer was
ByteDance, operator of TikTok, which was known to have serious
security risks and was under intense scrutiny by U.S. officials;
(2) there was a material risk that Fastly's business would be
adversely impacted should any adverse actions be taken against
ByteDance or TikTok by the U.S. government; and (3) as a result,
Defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
You have until the lead plaintiff deadlines to request that the
court appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
FIAT CHRYSLER: Dodge SRT Demon Owners File Class Action
-------------------------------------------------------
Mack Hogan, writing for Road & Track, reports that Dodge Challenger
SRT Demon owners have filed a class-action lawsuit against Fiat
Chrysler, alleging that an ill-fitting piece of the car's giant
hood scoop is causing the paint on the hood to chip and peel away.
The Demon's prominent hood scoop is one of its most defining
traits, a massive air intake (claimed to be the largest ever fitted
to a production car) that spans a majority of the hood's width. But
on some models -- primarily ones with the optional satin black hood
-- forum threads show that the plastic insert inside the hood scoop
can rub against the rim of the air inlet, damaging the paint.
The lawsuit acknowledges that FCA tried to address the issue with a
service bulletin specifying the fitment of a redesigned scoop
insert, but owners say this was not an adequate remedy -- the
damage has been done and the fixes aren't enough. Owners involved
in the class-action suit also allege that FCA denies warranty
claims seeking paint repairs in this area, leaving owners on the
hook for damage caused by an alleged design flaw.
The case, Garlough, et al. v. FCA US LLC, was filed in the Eastern
District Court of California. FCA, reached for comment, provided
the following statement to Road & Track:
"FCA believes this issue has been addressed and will be vigorously
defending the reputation of our products in this matter." [GN]
FIRST INTERSTATE: Hunter RICO Suit May Proceed in Forma Pauperis
----------------------------------------------------------------
In the case, MICHAEL HUNTER et al., Plaintiffs, v. FIRST INTERSTATE
BANK and CB1 Collections, Defendants, Case No. 5:19-CV-5073-LLP (D.
S.D.), Judge Lawrence L. Piersol of the U.S. District Court for the
District of South Dakota granted Mr. Hunter's Motion to Proceed in
Forma Pauperis.
On Nov. 6, 2019, Plaintiff Hunter, appearing pro se filed a
complaint on behalf of himself and on behalf of "All Others
Similarly Situated" alleging civil liability under section 1964(c)
of Racketeer Influenced and Corrupt Organizations Act ("RICO").
Subsequently, Mr. Hunter filed a Motion for Leave to Proceed in
Forma Pauperis.
As the Court noted in its recent opinion dismissing a lawsuit filed
by Mr. Hunter in another matter, Michael Hunter, et. al. v. Unknown
Named South Dakota Criminal, Civ. No. 19-4144, Mr. Hunter is no
stranger to the federal courts. He has filed at least 14 lawsuits
in South Dakota federal courts counting the present case and at
least 14 lawsuits in North Dakota. These suits have almost all
been dismissed for failure to state a claim or for failure to serve
defendants.
In just at least two prior lawsuits filed with this Court, Mr.
Hunter has sought to bring claims on behalf of other
non-represented parties. See Michael Hunter, et. al. v. Unknown
Named South Dakota Criminal, Civ. No. 19-4144 (D.S.D. 2019); Hunter
v. Sioux City Police Department et. al, Civ. No. 18-4119 (D.S.D.
2018). In each instance, the Court told Mr. Hunter that because he
is not an attorney, he is not permitted to file lawsuits on behalf
of other another person or entity. As in these prior cases, Judge
Piersol therefore construes Mr. Hunter's Complaint as asserting
only claims on his behalf.
Next, based upon Mr. Hunter's application, he indicates that he is
currently unemployed and has very limited assets, is on public
assistance, and that he has little discretionary income.
Considering the information in his financial affidavit, the Judge
finds that Mr. Hunter has made the requisite financial showing to
proceed in forma pauperis.
Mr. Hunter alleges that his claim arises under RICO which prohibits
certain conduct involving a "pattern of racketeering activity," and
makes a private right of action available to any person injured in
his business or property by reason of a violation of RICO's
substantive restrictions, provided that the alleged violation was
the proximate cause of the injury.
As the best the Judge can discern, Mr. Hunter alleges that he was
not informed by the Defendant of the fees associated with checking
account and "Gold" Mastercard that he received from the Defendant.
Mr. Hunter alleges that in October 2019, he had incurred a debt of
about $1,300 and that the Defendant withdrew overdraft protection.
Mr. Hunter also alleges that in October 2019, the Defendant refused
to close his checking and credit card and that without his approval
altered two checks including, it appears his Social Security check
mailed to the bank from Sioux Falls South Dakota and stole the
money.
In the present case, Mr. Hunter has not alleged what racketeering
activities the Defendant allegedly engaged in. Although the Judge
is bound to liberally construe a pro se plaintiff's complaint,
given the long list of 'prohibited activities' specified in 18
U.S.C. Section 1961(a), he is simply unwilling to guess upon what
racketeering activities Mr. Hunter bases his RICO claim. He will
grant Mr. Hunter leave to amend his Complaint. Mr. Hunter is
cautioned that any amended complaint filed by him must be a
complete pleading and will supersede his original complaint,
rendering the original without legal effect.
Accordingly, Judge Piersol granted Mr. Hunter's Motion to Proceed
in Forma Pauperis. Mr. Hunter was directed to amend his complaint
by Aug. 10, 2020, if he wishes to proceed. If he fails to do so,
his complaint will be dismissed without prejudice.
A full-text copy of the District Court's July 14, 2020 Memorandum
Opinion & Order is available at https://bit.ly/3osoa6D from
Leagle.com.
FSM ZA: Patzfahl Seeks Authorization to Send Notice to Co-Workers
-----------------------------------------------------------------
In the class action lawsuit captioned as Jason Patzfahl, On behalf
of himself and those similarly situated, v. FSM ZA, LLC, et al.,
Case No. 2:20-cv-01202-LA (E.D. Wisc.), the Plaintiff asks the
Court for an order authorizing him to send notice of the pendency
of this action to his similarly-situated co-
workers:
"all current and former delivery drivers employed at any
Toppers Pizza location owned/operated by Defendants FSM ZA,
LLC and/or Garett Burns from August 6, 2017 to the date of
the Court's Order approving notice."
A copy of the Plaintiff's Motion to Send Notice to Similarly
Situated Employees is available from PacerMonitor.com at
https://bit.ly/3mu2mXf at no extra charge.[CC]
The Plaintiff is represented by:
Andrew R. Biller, Esq.
Andrew P. Kimble, Esq.
Nathan B. Spencer, Esq.
BILLER & KIMBLE, LLC
4200 Regent Street, Suite 200
Columbus, OH 43219
Telephone: (614) 604-8759
Facsimile: (614) 340-4620
E-mail: abiller@billerkimble.com
akimble@billerkimble.com
nspencer@billerkimble.com
- and -
Scott S. Luzi, Esq.
WALCHESKE & LUZI, LLC
15850 W. Bluemound Road, Suite 304
Brookfield, WI 53005
Telephone: (262) 780-1953
Facsimile: (262) 565-6469
E-mail: sluzi@walcheskeluzi.com
G4S SECURE: Labor Class Action Pending in California
----------------------------------------------------
The San Diego employment law attorneys, at Blumenthal Nordrehaug
Bhowmik De Blouw LLP, filed a class action complaint alleging that
G4S Secure Solutions (USA) Inc. failed to provide their California
employees with meal and rest periods as required by California law.
The G4S Secure Solutions (USA) Inc., class action lawsuit, Case No.
37-2020-00029421-CU-OE-CTL, is currently pending in the San Diego
Superior Court of the State of California.
The complaint alleges G4S Secure Solutions (USA) Inc. committed
acts of unfair competition in violation of the California Unfair
Competition Law, Cal. Bus. & Prof. Code Secs. 17200, et seq. (the
"UCL"), by engaging in a company-wide policy and procedure which
failed to accurately calculate and record all missed meal and rest
periods by PLAINTIFFS and other CALIFORNIA CLASS Members. As a
result of DEFENDANT's intentional disregard of the obligation to
meet this burden, DEFENDANT allegedly failed to properly calculate
and/or pay all required compensation for work performed by the
members of the CALIFORNIA CLASS and violated the California Labor
Code.
Additionally, "DEFENDANT subjected PLAINTIFF to adverse employment
action by retaliating against PLAINTIFF." PLAINTIFF was terminated
due to excessive force. In California, there is a general public
policy favoring the preservation of human life and would prevent
DEFENDANT from firing PLAINTIFF for fighting back in self-defense
of his life when he had no opportunity to retreat and was
cornered.
If you would like to know more about the G4S Secure Solutions (USA)
Inc. lawsuit, please contact Attorney Nicholas J. De Blouw today by
calling (800) 568-8020.
Blumenthal Nordrehaug Bhowmik De Blouw LLP is an employment law
firm with offices located in San Diego, San Francisco, Sacramento,
Los Angeles, Riverside and Chicago that dedicates its practice to
helping employees, investors and consumers fight back against
unfair business practices, including violations of the California
Labor Code and Fair Labor Standards Act. If you need help in
collecting unpaid overtime wages, unpaid commissions, being
wrongfully terminated from work, and other employment law claims,
contact one of their attorneys today. [GN]
GHIRARDELLI CHOCOLATE: Counts 1-3 in Cheslow Dismissed w/ Prejudice
-------------------------------------------------------------------
GHIRARDELLI CHOCOLATE: Counts 1-3 in Cheslow Dismissed w/
Prejudice
GHIRARDELLI CHOCOLATE: Court Junks 3 Counts in Cheslow
In the case, LINDA CHESLOW, et al., Plaintiffs, v. GHIRARDELLI
CHOCOLATE COMPANY, Defendant, Case No. 19-cv-07467-PJH (N.D. Cal.),
Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California granted the Defendant's motion to
dismiss the Plaintiffs' first through third causes of action.
On Sept. 19, 2019, Plaintiffs Cheslow and Steven Prescott filed a
complaint in Sonoma County Superior Court, which the Defendant
removed to federal court on Nov. 13, 2019. The complaint asserted
three causes of action: (1) violation of California Unfair
Competition Law Business & Professions Code Section 17200 et seq.;
(2) False and Misleading Advertising in violation of Business &
Professions Code Section 17500 et seq.; and (3) violation of
California Consumer Legal Remedies Act.
On April 8, 2020, the Court granted the Defendant's motion to
dismiss and dismissed the complaint with leave to amend. On April
29, 2020, the Plaintiffs filed their First Amended Complaint
("FAC") alleging the same three causes of action as the original
complaint. They seek to certify a class action of all persons who
purchased Ghirardelli's "Premium Baking Chips Classic White Chips"
in the United States or, alternatively, in California.
The Plaintiffs' FAC has pled the following new allegations. The
Plaintiffs cite and attach to the FAC a consumer study they
commissioned to determine whether and to what extent the
Defendant's labeling misleads consumers into believing that the
product contains white chocolate. The survey's sample size was
1,278 respondents; respondents were equally allocated to respond to
questions concerning one of the following four products:
Ghirardelli's Classic White Chips, Nestle Toll House's Premier
White Morsels, Target's Market Pantry White Baking Morsels, and
Walmart's White Baking Chips. Respondents were asked demographic
questions and then shown the front panel of one of the four
products. They were then asked questions such as "Based on your
review of this package, do you think that this product contains
white chocolate."
According to the survey results, 91.88% of the respondents
indicated that they believed the product contained white chocolate
while 8.12% did not think the product contained white chocolate.
The respondents were asked "If, after purchasing this Product, you
learned that the Product contained no white chocolate or chocolate
of any kind, would you be less or more satisfied with you
purchase?" About 64.69% of respondents answered that they would
either be "much less satisfied" or "somewhat less satisfied."
About 35.31 of them would be "neither less nor more satisfied,"
"somewhat more satisfied," or "much more satisfied." Similar
percentages responded that they would be much or somewhat less
likely to purchase the product again (65.32%) as compared to more
likely to purchase the product again (34.68%).
Additionally, each Plaintiff alleges with greater specificity the
reasons why they were deceived by the packaging and why they relied
on the product's package. Cheslow saw the picture of white
chocolate chips on the label, as well as the references to
"Premium" and "Classic White Chips," and she believed that the
product contained white chocolate. Prescott alleges that he relied
upon the labeling and advertising of the product, which he
reasonably believed to be white chocolate.
The Plaintiffs also discuss at length the history of chocolate, how
chocolate is made, and the attributes of white chocolate. The
discussion is relevant because, according to the Plaintiffs,
chocolate is perceived to be a unique, irreplaceable product and
reasonable consumers do not think they are purchasing a cheap
knock-off pretending to be chocolate.
Before the Court is the Defendant's motion to dismiss.
The Plaintiffs bring three claims under three different California
statutes: The Unfair Competition Law ("UCL"), False Advertising Law
("FAL"), and the Consumer Legal Remedies Act ("CLRA"). The UCL
prohibits any unlawful, unfair or fraudulent business act or
practice. The false advertising law prohibits any unfair,
deceptive, untrue, or misleading advertising. The CLRA prohibits
unfair methods of competition and unfair or deceptive acts or
practices.
Judge Hamilton finds that the Plaintiffs' arguments concerning
issues decided in the Court's prior order generally do not put
forward any reason for him to change the findings. Accordingly, he
reaffirms the Court's prior order and turns to the new allegations
included in the FAC.
The most significant new allegation in the FAC concerns a consumer
survey that the Plaintiffs commissioned. As detailed, the
Plaintiffs commissioned a consumer survey that resulted in nearly
92% of the respondents who viewed the front panel of the product
indicating that they thought it contained white chocolate while
only 8% thought it did not contain white chocolate. A majority of
the respondents would either be much less satisfied or somewhat
less satisfied with their purchase if they learned that the product
contained no white chocolate.
The Court previously determined that it was unreasonable for the
Plaintiffs to think that the term "white" in "white chips" meant
white chocolate chips. Critical to the conclusion was both the
lack of an affirmative deceptive statement and the presence of an
ingredient list to dispel any doubt as to the contents of the
product.
The Plaintiffs' newly added allegations do not substantially change
the Court's prior conclusion and, accordingly, the Judge finds that
the Plaintiffs' UCL, FAL, and CLRA claims all fail to state a claim
as a matter of law. As before, the Judge need not reach the
Defendant's alternative arguments regarding standing and Federal
Rule of Civil Procedure 9(b)'s heightened pleading requirements and
does not revisit its separate order on the Defendant's partial
motion for summary judgment.
Finally, the Plaintiffs request leave to amend if the Court
dismisses the FAC. The Court previously expressed its skepticism
that any amendment could cure the defects in the complaint because
Ghirardelli's packaging would not change in any amended complaint.
The Plaintiffs have not identified what additional facts they might
allege to cure any deficiencies and, if those facts existed, then
they would have been included in the FAC. Any further amendment
would be futile and, accordingly, the claims will be dismissed with
prejudice.
For the foregoing reasons, Judge Hammilton granted the Defendant's
motion to dismiss the Plaintiffs' first through third causes of
action, and dismissed with prejudice the Plaintiffs' claims.
A full-text copy of the Court's July 17, 2020 Order is available at
https://bit.ly/34pITQI from Leagle.com.
GOHEALTH INC: Wolf Haldenstein Files Securities Class Action
------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on Oct. 1 disclosed that
it has filed a federal securities class action lawsuit against
GoHealth, Inc. ("GoHealth" or the "Company") (NASDAQ: GOCO). The
class action, filed in United States District Court for the
Northern District of Illinois, Eastern Division, and docketed under
1:20-cv-05765, is on behalf of a class consisting of all persons
other than Defendants who purchased or otherwise acquired GoHealth
Class A common stock pursuant and/or traceable to the registration
statement issued in connection with GoHealth's July 2020 initial
public offering (the "IPO"). Wolf Haldenstein is seeking to pursue
remedies under the Securities Act of 1933 (the "Securities Act")
against GoHealth, certain of GoHealth's officers and directors, and
the private equity sponsor of the IPO and its affiliates.
All investors who purchased shares of GoHealth and incurred losses
are urged to contact the firm immediately at classmember@whafh.com
or (800) 575-0735 or (212) 545-4774. You may obtain additional
information concerning the action or join the case on our website,
www.whafh.com.
If you have incurred losses in the shares of against GoHealth., you
may, no later than November 20, 2020, request that the Court
appoint you lead plaintiff of the proposed class. Please contact
Wolf Haldenstein to learn more about your rights as an investor in
the shares of GoHealth.
On June 19, 2020, GoHealth filed a registration statement with the
United States Securities and Exchange Commission ("SEC") for the
IPO on Form S-1 (the "Registration Statement"), which was used to
sell to the investing public 43.5 million shares of GoHealth Class
A common stock at $21 per share, for total gross proceeds of $913.5
million.
Our complaint alleges that the Offering Materials for the IPO were
negligently prepared and, as a result, contained untrue statements
of material fact, omitted material facts necessary to make the
statements contained therein not misleading, and failed to make
necessary disclosures required under the rules and regulations
governing their preparation. Specifically, the Offering Materials
failed to disclose that at the time of the IPO:
-- the Medicare insurance industry was undergoing a period of
elevated churn, which had begun in the first half of 2020;
-- GoHealth suffered from a higher risk of customer churn as a
result of its unique business model and limited carrier base;
-- GoHealth suffered from degradations in customer persistency
and retention as a result of elevated industry churn,
vulnerabilities that arose from the Company's concentrated carrier
business model, and GoHealth's efforts to expand into new
geographies, develop new carrier partnerships and worsening product
mix;
-- GoHealth had entered into materially less favorable revenue
sharing arrangements with its external sales agents; and
-- these adverse financial and operational trends were
internally projected by GoHealth to continue and worsen following
the IPO.
Since the July 2020 IPO, the price of GoHealth Class A common stock
has suffered significant price declines. By September 15, 2020,
GoHealth Class A common stock closed at just $12.53 per share –
over 40% below the $21 per share price investors paid for the stock
in the IPO nearly two months prior.
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm has
attorneys in various practice areas; and offices in New York,
Chicago and San Diego. The reputation and expertise of this firm in
shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at
classmember@whafh.com, or visit our website at www.whafh.com.
Contact:
Wolf Haldenstein Adler Freeman & Herz LLP
Kevin Cooper, Esq.
Gregory Stone, Director of Case and Financial Analysis
Email: gstone@whafh.com, kcooper@whafh.com or
classmember@whafh.com
Tel No: (800)575-0735 or (212)545-4774 [GN]
GOL LINHAS: Zhang Investor Reminds of Class Action Filing
---------------------------------------------------------
Zhang Investor Law on Oct. 1 announced a class action lawsuit on
behalf of shareholders who bought shares of Gol Linhas Aereas
Inteligentes S.A. (NYSE: GOL) between March 14, 2019 and July 22,
2020, inclusive (the "Class Period"). The lawsuit seeks to
recover damages for Anaplan Inc. investors under the federal
securities laws.
To join the class action, go to
http://zhanginvestorlaw.com/join-action-form/?slug=gol-linhas-aereas-inteligentes-s-a&id=2407
or call Sophie Zhang, Esq. toll-free at 800-991-3756 or email
info@zhanginvestorlaw.com for information on the class action.
If you wish to serve as lead plaintiff, you must move the Court
before the November 10, 2020 DEADLINE. A lead plaintiff is a
representative party acting on behalf of other class members in
directing the litigation.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) GOL had material weaknesses in its internal controls; (2)
there was substantial doubt as to the Company's ability to continue
to exist as a going concern because of negative net working capital
and net capital deficiency; and (3) as a result, Defendants'
statements about its business, operations, and prospects, were
materially false and misleading and/or lacked a reasonable basis at
all relevant time. When the true details entered the market, the
lawsuit claims that investors suffered damages.
Lead plaintiff status is not required to seek compensation. You
may retain counsel of your choice. You may remain an absent class
member and take no action at this time.
Zhang Investor Law represents investors worldwide. Attorney
Advertising. Prior results do not guarantee similar outcomes.
Zhang Investor Law P.C.
99 Wall Street, Suite 232
New York, New York 10005
info@zhanginvestorlaw.com
Tel: (800) 991-3756 [GN]
GSK CONSUMER: Seeks Dismissal of Chapstick Class Action
-------------------------------------------------------
Legal Newsline reports that the maker of ChapStick is again asking
a federal judge to throw out a class action lawsuit that accuses it
of claiming the product can protect against the sun for eight
hours.
It is the second time GSK Consumer Healthcare Holdings has had to
point out that the reason its claims for "8 hour moisture" and "SPF
15" are so close is because there is not a lot of room on its
tubes. In August, the law firm Sheehan & Associates was permitted
to file an amended complaint.
"Plaintiff's Amended Complaint does not make his claims any more
plausible. Instead, his only new substantive allegation is a
one-sentence conclusory reference to a consumer survey in which a
majority of participants purportedly responded that ChapStick
Moisturizer provided eight hours of sun protection," the new motion
to dismiss says.
"Nowhere in the Amended Complaint does plaintiff explain what
participants were shown in the survey or what question(s) they were
asked.
"Plaintiff's apparent strategy to survive a motion to dismiss - the
less said the better - is directly contrary to the mandate of the
U.S. Supreme Court, which has held that in order to satisfy Rule 8,
a plaintiff must offer concrete and plausible factual allegations,
not just 'conclusory statements.'"
The packaging instructs users to reapply at least every two hours.
Plaintiff Clifton Engram has alleged he was at a risk of harm
because the packaging encourages under-application of the product.
GSK also says Engram doesn't allege he was actually harmed.
The amended complaint says a May survey by a third party of 402
consumers showed 64.4% of them thought the packaging claimed eight
hours of sun protection. [GN]
GURSTEL LAW: Jabler Files Placeholder Class Certification Bid
-------------------------------------------------------------
In the class action lawsuit styled as TAISIR JABER, Individually
and on Behalf of All Others Similarly Situated, vs. GURSTEL LAW
FIRM PC and ABSOLUTE RESOLUTIONS INVESTMENTS LLC, Case No.
2:20-cv-01410-LA (E.D. Wisc.), the Plaintiff filed a "placeholder"
motion for class certification in order to prevent against a
"buy-off" attempt, a tactic class-action defendants sometimes use
to attempt to prevent a case from proceeding to a decision on class
certification by attempting to "moot" the named plaintiff's claims
by tendering the plaintiff individual (but not classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
himself as the class representative, and appoint his attorneys as
class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
A copy of the Plaintiff’s Placeholder motion to certify class is
available from PacerMonitor.com at https://bit.ly/3hyBBxm at no
extra charge.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
HARLEY-DAVIDSON INC: 9th Cir. Flips Remand of Greene to State Court
-------------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit reversed the
district court's order remanding to state court the case, MATTHEW
D. GREENE, an individual, on behalf of himself, the proposed
class(es), all others similarly situated, and on behalf of the
general public, Plaintiff-Appellee, v. HARLEY-DAVIDSON, INC., a
Wisconsin corporation; HARLEY-DAVIDSON MOTOR COMPANY, INC., a
Wisconsin corporation; HARLEY-DAVIDSON MOTOR COMPANY OPERATIONS,
INC., a Wisconsin corporation, Defendants-Appellants, and DOES, 1
through 10, inclusive, Defendant, Case No. 20-55281 (9th Cir.).
In 2015, Plaintiff-Appellee Matthew Greene started shopping for a
Harley-Davidson motorcycle. He researched online, reviewed
Harley-Davidson's catalogs and brochures, and browsed motorcycles
at the Riverside Harley-Davidson dealership. The motorcycles had
price tags with a manufacturer suggested retail price, and
according to Harley-Davidson's advertising, the price excluded
dealer setup, taxes, title and licensing. Based on this
advertising, Greene expected the dealership to charge him a dealer
setup fee on top of the suggested retail price.
Greene bought a motorcycle from the Riverside dealership on June
13, 2015. He paid $23,799.63, which included a $1,399 freight and
prep charge. As expected, Greene paid the $1,399 fee in addition
to the manufacturer's suggested retail price. But, unbeknownst to
Greene, the dealership had already performed the necessary prep and
setup tasks for the motorcycle, and Harley-Davidson had reimbursed
the dealership for the costs of doing so. Therefore, contrary to
the dealership's advertising, the suggested retail price actually
included the dealership's setup costs.
Two years later, Harley-Davidson's advertising revealed that it in
fact reimburses dealers for performing setup tasks. Greene now
claims that he would not have paid the $1,399 fee if not for
Harley-Davidson's fraudulent statement that the suggested retail
price did not include dealer setup.
Greene filed a putative class action against Harley-Davidson on
June 11, 2019, in California state court. Greene brought claims
for (1) false advertising, (2) violations of the Consumer Legal
Remedies Act (CLRA), (3) breach of express warranty, (4) negligent
misrepresentation, (5) fraud and deceit (6) quasi-contract/unjust
enrichment, (7) aiding and abetting, and (8) unfair competition.
Greene seeks (1) damages in an amount not less than $1 million for
each year beginning June 11, 2015 and continuing to Aug. 23, 2017,
(2) reasonable attorneys' fees under a statutory fee shifting
provision, (3) punitive damages, and (4) injunctive relief.
Greene proposes a class of all consumers who, for the period
beginning June 11, 2015 through Aug. 22, 2017, purchased or leased
from Riverside Harley-Davidson a new, assembled Harley-Davidson
motorcycle, and alleges that the class likely consists of thousands
of members. The complaint also says that any applicable statutes
of limitation[s] should be tolled and are tolled under governing
law.
Harley-Davidson removed the case, invoking federal jurisdiction
under the Class Action Fairness Act. It alleged that the following
damages satisfied CAFA's requirement that the amount in controversy
exceeds $5 million: (1) at least $2,166,666 in compensatory damages
based on the prayer in the Complaint (at least $1,000,000/year from
June 11, 2015 to Aug. 23, 2017); (2) approximately $2,166,666 in
punitive damages based on a 1:1 punitive/compensatory damages
ratio; and (3) $1,083,333 in attorneys' fees, or 25% of the total
amount in controversy.
Greene moved to remand the case back to state court, challenging
Harley-Davidson's punitive damages and attorneys' fees amounts. He
argued that only the CLRA and fraud causes of action allow for
punitive damages, and that both have a three-year statute of
limitations. Invoking tolling principles established in American
Pipe & Constr. Co. v. Utah, Green argued that his punitive damages
prayers had to be based on his individual claims, not the class
claims. He argued that his individual claims were for $1,399, so a
1:1 ratio would yield a punitive damages award of $1,399, not
$2,166,666. Greene also challenged Harley-Davidson's attorneys'
fees amount, arguing that the "common fund" fees come out of the
total damages and are not added to the total amount in
controversy.
Harley-Davidson opposed the motion, attaching (1) evidence that
juries had awarded punitive damages above a 1:1 ratio in four prior
California CLRA cases and (2) evidence that Greene's attorney
sought attorneys' fees totaling 35 percent of the recovery in a
similar class action.
The district court granted Greene's motion to remand. It
acknowledged that Harley-Davidson had cited several cases in which
the jury had awarded punitive damages on at least a 1:1 ratio. But
it ruled that such evidence was insufficient because
Harley-Davidson made no attempt to analogize or explain how these
cases are similar to the instant action. A lthough Harley-Davidson
was not required to submit evidence of punitive damage awards in an
identical case as this one, simply citing to cases without analysis
or explanation is insufficient. The court thus held that, even
assuming Harley-Davidson's attorneys' fees amount was correct,
Harley-Davidson had not established by a preponderance of the
evidence that the amount in controversy exceeded $5 million.
Finally, the district court concluded by noting that the potential
recovery for punitive damages was $1,399, not $2,166,166.
Harley-Davidson timely filed a petition for permission to appeal,
which was granted on March 16, 2020.
The case presents a technical, but unresolved, question in the
circuit: If the Defendant relies on potential punitive damages to
meet the amount-in-controversy requirement for removal under the
Class Action Fairness Act, what is the Defendant's burden in
establishing that amount?
The Ninth Circuit holds that the Defendant must show that the
punitive damages amount is reasonably possible. Harley-Davidson
met that standard by identifying prior cases involving the same
cause of action in which the juries awarded punitive damages based
on the same or higher punitive/compensatory damages ratios than the
one relied upon by Harley-Davidson.
First, the Ninth Circuit finds that a defendant that relies on
potential punitive damages to satisfy the amount in controversy
under CAFA meets that requirement if it shows that the proffered
punitive/compensatory damages ratio is reasonably possible. And
one way to establish that possibility is to cite a case involving
the same or a similar statute in which punitive damages were
awarded based on the same or higher ratio. Harley-Davidson met
that burden by citing four cases where juries had awarded punitive
damages at ratios higher than 1:1 for claims based on the CLRA. In
doing so, Harley-Davidson "relied on a reasonable chain of logic"
to assume that a similar amount was at stake, and "presented
sufficient evidence to establish that the amount in controversy
exceeds $5 million."
Next, the Ninth Circuit finds that Greene put more than $5 million
in controversy. Greene is the master of his complaint, and he owns
the allegations that have landed him in federal court. In adopting
Greene's measure of damages, the district court assumed that
Harley-Davidson would prevail on a statute of limitations defense
against the rest of the class. The district court improperly
decided the merits of the case before it could determine if it had
subject matter jurisdiction, the Ninth Circuit holds.
Greene cannot smuggle in merits-based arguments into the
jurisdictional inquiry, which is supposed to be simple and
mechanical. Moreover, doing so would allow Greene to rewrite his
complaint to avoid federal court. Greene sued for compensatory
damages, punitive damages, and attorneys' fees for a two-year class
period, and alleged that all statutes of limitations should be
tolled. He sued under laws that allow for punitive damages,
exposing Harley-Davidson to higher damages. Harley-Davidson may
successfully assert certain defenses, but if the class succeeds in
receiving what Greene asked for, Harley-Davidson could pay more
than $5 million in damages.
Based on the foregoing, the Ninth Circuit reversed the district
court's order remanding the case to state court because it
effectively required Harley-Davison to provide evidence that the
proffered punitive damages amount is probable or likely.
A full-text copy of the Ninth Circuit's July 14, 2020 Opinion is
available at https://bit.ly/2Tn3qiD from Leagle.com.
James S. Azadian -- jazadian@dykema.com -- (argued) and Cory L.
Webster, Dykema Gossett LLP, Los Angeles, California, for
Defendants-Appellants.
Ross H. Hyslop -- hyslop@pestotnik.com -- (argued), Pestotnik LLP,
San Diego, California, for Plaintiff-Appellee.
HEALTH EXPRESS: Judgment in Arafa Flipped & Affirmed in Colon's
---------------------------------------------------------------
In the cases, Essam Arafa, on behalf of himself and others
similarly situated, Plaintiff-Respondent, v. Health Express
Corporation, Defendant-Appellant. Gloria Colon, Diana Mejia and
Freddy Diaz, on behalf of themselves and all other similarly
situated persons, Plaintiffs-Appellants, v. Strategic Delivery
Solutions, LLC, and Myriam Barreto, Defendants-Respondents, Case
Nos. 083174, 083154, A-6 September Term 2019, A-7 September Term
2019 (N.J.), the Supreme Court of New Jersey ruled 6-1 to:
(i) reverse the judgment of the Appellate Division in Arafa, and
(ii) affirm the judgment of the Appellate Division in Colon.
The appeals involve arbitration agreements in contracts for
employment that, the Plaintiffs argue, fall within the "exemption
clause" of the Federal Arbitration Act ("FAA"). The question posed
in both cases is whether the disputed arbitration agreements would
be enforceable under the New Jersey Arbitration Act ("NJAA"), if
they are exempt from the FAA.
The Court addresses Colon and Arafa together. Although the facts
of the arbitration agreements differ, their overall thrust is the
same. In both cases, the Plaintiff employees brought suit against
their employers in Superior Court, and the employers sought
dismissal of the suits in light of the arbitration agreement in the
respective employment contracts.
In Colon, Defendant SDS is a licensed freight forwarder and broker.
Plaintiffs Colon, Mejia, and Diaz worked for SDS at the Elizabeth,
New Jersey facility from approximately February 2015 through March
2016. Their job descriptions included truck driving and delivery
functions for customers throughout the state and surrounding areas.
Each Plaintiff entered into an identical employment agreement with
SDS. Directly at issue are Paragraphs 19, 20, and 24 of the
employment agreements.
The Plaintiffs filed a class action complaint against SDS on behalf
of themselves and similarly situated persons who performed truck
driving and/or delivery services for SDS. They alleged SDS
violated the New Jersey Wage and Hour Law by failing to pay
overtime wages and violated the New Jersey Wage Payment Law by
illegally withholding monies.
SDS filed a motion to dismiss the complaint and compel arbitration
on an individual basis pursuant to the Plaintiffs' arbitration
agreements. Because the Plaintiffs failed to mention the
arbitration agreements in their complaint, SDS thus relied on
materials not in the Plaintiffs' complaint, and the trial court
applied a summary judgment standard to SDS's motion.
In Arafa, decided one day after Colon, Plaintiff Arafa began
working for Defendant Health Express in April 2016. He was hired
to deliver medicines and pharmaceutical products from pharmacies
and medical offices in New Jersey to customers throughout the state
and in surrounding areas. Arafa signed an employment agreement and
an arbitration agreement with Health Express.
Arafa filed a class action complaint against Health Express on
behalf of himself and others similarly situated. He alleged Health
Express misclassified him and the class members as independent
contractors, violating New Jersey's Wage and Hour and Wage Payment
Laws. Arafa also alleged Health Express failed to pay overtime
wages and illegally withheld monies.
Health Express filed a motion to dismiss, or alternatively, to stay
the proceeding and compel arbitration pursuant to the parties'
arbitration agreement.
Both trial courts granted the employers' motions to dismiss and to
compel arbitration. A panel of the Appellate Division agreed in
Colon that the arbitration agreement would be enforceable under the
NJAA if, on remand, the trial court found the agreement exempt from
the FAA; another Appellate Division panel reversed the dismissal in
Arafa, ruling the arbitration agreement in that case null and
void.
The New Jersey Supreme Court granted the Plaintiffs' petition for
certification in Colon, and Defendant Health Express' petition for
certification in Arafa. It also granted the motions of the
National Employment Lawyers Association of New Jersey ("NELA") and
the New Jersey Association for Justice ("NJAJ") to participate as
amici curiae.
Plaintiff Colon, on behalf of the class members, asserts they are
transportation workers for purposes of section 1 of the FAA and are
therefore exempt from arbitration. Because the arbitration
agreements designated the FAA as the "sole and exclusive governing
law," the Plaintiffs argue there was no "meeting of the minds"
because there was no other basis in the contract for arbitration.
They also argue that, by applying the NJAA, the Appellate Division
rewrote the parties' arbitration agreements to substitute the
express provision in favor of the FAA. The Plaintiffs also
challenge the Appellate Division's finding that they waived their
right to proceed in court through the arbitration agreement,
stressing that their arbitration agreements fail to expressly
mention their statutory wage claims.
Plaintiff Arafa agrees with the Colon Plaintiffs' assertions about
the applicability of the NJAA. Arafa stresses that he was a
transportation worker engaged in interstate commerce and was
therefore exempt from the FAA under section 1. Further, Arafa
argues that absent clear intent to apply non-FAA law, the FAA must
be applied. Specifically, Arafa asserts that absent express intent
to apply the NJAA, the state law cannot be applied in the FAA's
place.
Amicus curiae NELA aligns itself with Colon's and Arafa's position:
the contractual waiver of the right to a jury trial must be clear,
unmistakable, and explicitly stated. NELA argues that Colon and
the class did not have a clear mutual understanding with SDS of
their assent to the arbitration provision. As such, NELA argues
that because the arbitration agreements applied to a waiver of
statutory rights, the lack of mutual assent rendered the
arbitration agreements invalid and unenforceable. NELA also argues
the Appellate Division reformulated the parties' agreement to
provide that the NJAA applied.
Amicus curiae NJAJ also aligns itself with the Plaintiffs'
position, arguing the parties entered into an agreement that was
invalid under their own choice of applicable law, and therefore,
there was no mutual assent at the time the arbitration agreement
was entered into. NJAJ argues that in the case, the parties agreed
to arbitrate pursuant to the FAA, and the NJAA is therefore
superseded and inapplicable. Additionally, although NJAJ
recognizes the FAA does not generally preempt state law, it posits
that there is a direct conflict between the FAA and the NJAA in the
matter.
Defendant SDS asserts the Court should affirm the Appellate
Division in Colon because arbitration agreements need not
explicitly refer to statutory claims in order to be enforceable.
Further, it asserts that the Plaintiffs' argument that the parties
lacked mutual assent is premature because the Appellate Division
did not determine whether the FAA applied to the arbitration
agreements at issue. SDS also argues the parties expressly
anticipated that a court may invalidate only specific provisions of
the agreements in the event those provisions are found
unenforceable.
Defendant Health Express in Arafa argues the Court should follow
the Colon decision because the matters are factually identical and
because the Appellate Division in Colon recognized both the FAA and
the NJAA are in favor of arbitration. Conversely, Health Express
argues the Appellate Division in Arafa misapplied New Prime because
the FAA does not preempt state law or reflect a congressional
intent to occupy the entire field of arbitration. Further, Health
Express argues the parties unequivocally agreed to arbitrate their
disputes, and the FAA's inapplicability to the parties did not
destroy the intent to arbitrate in general.
In considering the issues raised by the parties, the Court first
examines the legal question common to both appeals before it --
whether, if the agreements at issue are exempt from the FAA under 9
U.S.C. Section 1, they may be enforceable under the NJAA. It then
examines the challenges to the enforceability of the agreements
specific to each case.
In sum, the New Jersey Supreme Court concludes that the NJAA may
apply to arbitration agreements even if parties to the agreements
are exempt under section 1 of the FAA. It therefores hold that the
parties in both Colon and Arafa are not exempt from arbitration and
that their arbitration agreements are enforceable. In Arafa, the
arbitration agreements are enforceable under the NJAA. In Colon,
the arbitration agreements are enforceable under either the FAA or
the NJAA, which will be determined by the trial court upon remand
when it resolves the factual question of whether the employees in
that case were transportation workers engaged in interstate
commerce. Therefore, the Court (i) reversed the judgment of the
Appellate Division in Arafa, and (ii) affirmed the judgment of the
Appellate Division in Colon.
A full-text copy of the Court's July 14, 2020 Opinion is available
at https://bit.ly/37QFQmT from Leagle.com.
Ivan R. Novich -- inovich@littler.com -- argued the cause for
appellant in Essam Arafa v. Health Express Corporation (Littler
Mendelson, attorneys; Ivan R. Novich and Dylan C. Dindial, of
counsel and on the briefs, and Michael T. Grosso , on the briefs).
Ravi Sattiraju -- rsattiraju@sattirajulawfirm.com -- argued the
cause for respondent in Essam Arafa v. Health Express Corporation
and for appellants in Gloria Colon v. Strategic Delivery Solutions,
LLC (The Sattiraju Law Firm, attorneys; Ravi Sattiraju of counsel
and on the briefs, and Anthony S. Almeida, on the briefs).
Patrick W. McGovern -- pmcgovern@genovaburns.com -- argued the
cause for respondents in Gloria Colon v. Strategic Delivery
Solutions, LLC (Genova Burns, attorneys; Patrick W. McGovern, of
counsel and on the briefs).
William D. Wright -- wwright@fisherphillips.com -- argued the cause
for amicus curiae New Jersey Association for Justice in Essam Arafa
v. Health Express Corporation and in Gloria Colon v. Strategic
Delivery Solutions, LLC (The Wright Law Firm, attorneys; William D.
Wright and David T. Wright, on the brief).
Andrew W. Dwyer -- intake@thedwyerlawfirm.com -- submitted a brief
on behalf of amicus curiae National Employment Lawyers Association
of New Jersey in Gloria Colon v. Strategic Delivery Solutions, LLC
(The Dwyer Law Firm, attorneys; Andrew W. Dwyer, of counsel and on
the brief).
HUNAN MANOR: Chen Suit Seeks Class Certification
------------------------------------------------
In the class action lawsuit captioned as SHI MING CHEN, LIANHE
ZHOU, YONG KANG LIU, JIXIANG WANG, WEI MIN ZHU, BAOJUN TIAN,
XINLONG LIU, QIFANG CHEN, and PINGJIN FAN, individually and on
behalf of others similarly situated, v. HUNAN MANOR ENTERPRISE,
INC. d/b/a Hunan Manor, HUNAN MANOR LLC d/b/a Hunan Manor, HUNAN
HOUSE MANOR INC d/b/a Hunan Manor, HUNAN HOUSE RESTAURANT, INC.
d/b/a Hunan Manor, HUNAN HOUSE RESTAURANT NY LLC. d/b/a Hunan
Manor, HUNAN HOUSE, INC. d/b/a Hunan Manor, A TASTE OF MAO, INC.
d/b/a China Xiang, JINGCHAO LI a/k/a Jing Chao Li a/k/a Diana Li,
ZHIDA LI a/k/a Zhi Da Li a/k/a Zhi Ba Li, and ZHENQI XIAO a/k/a
Nancy Xiao a/k/a Nancy Zhou, Case No. 1:17-cv-00802-GBD-GWG
(S.D.N.Y.), the Plaintiffs ask the Court for an order:
1. certifying the action as a class action pursuant to
Federal Rule of Civil Procedure 23;
2. appointing themselves as class representatives;
3. appointing Troy Law, PLLC as class counsel;
4. permitting the Plaintiffs to circulate a class action
notice in Mandarin in the World Journal, a Mandarin-
language newspaper in New York City for five consecutive
weeks; and
5. granting such other relief as the Court deems just and
proper.
The Defendants operate a restaurant business.
A copy of the Plaintiff's Motion to Certify Class is available from
PacerMonitor.com at https://bit.ly/3mtztdZ at no extra charge.[CC]
The Plaintiffs are represented by:
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard, Suite 103
Flushing, NY 11355
Telephone: 718 762-1324
ILLINOIS HIGH: Judge Denies TRO for Parents of Student-Athletes
----------------------------------------------------------------
Eric DeGrechie, writing for Patch, reports that a class-action
lawsuit filed on behalf of student-athletes hoping to play high
school sports this fall in Illinois hit a snag on Oct. 1 when
DuPage County Circuit Judge Paul Fullerton denied a request from a
group of parents for a temporary restraining order involving the
Illinois High School Association's Return to Play guidelines,
largely due to special circumstances caused by the coronavirus
pandemic.
"We are in a pandemic and I think what the IHSA did was within
their authority under the [organization's] by-laws and
constitution," Fullerton said of the IHSA's decision to move
football, among other fall sports, to the spring following
restrictions placed on youth sports by Gov. J.B. Pritzker in July.
Among the contentions made by the plaintiffs in the lawsuit is that
the IHSA's board of directors did not have the right to pass the
Return to Play guidelines without a full vote of its 800 member
schools.
"I believe that they do [have the right]," Fullerton said. "In
reading the [IHSA's] constitution and by-laws, they must be read as
a whole. There was a lot of argument parsing out sections of the
by-laws, and you can take that language in certain sections to
support your position. There are arguments that these guidelines
are amendments, or no, they're modifications, or no, they're an
adjustment, but they are a temporary adjustment."
Parents David Ruggles, Chris Warden and Kelly Ridges, on behalf of
their student-athlete children, were the lead plaintiffs in the
case, and were represented by lawyer Jeff Widman. The IHSA was
represented by David Bressler.
"The IHSA says 'what difference does it make as the governor won't
allow it to be played.' The ADs [athletic directors] and coaches
don't stand up for the kids and instead say 'what difference will
it make.' The teachers don't stand up for the kids to get them back
in class because they say 'what difference does it make," Ruggles
told Patch. "The people whose job it is to advocate for the kids
are incompetent cowards."
A status update on whether a preliminary injunction hearing will
occur was planned for Oct. 5. Widman said he would discuss the
matter with his clients before saying the plaintiffs want to move
forward with the case.
"While the IHSA defended itself in court, our defense was not a
rebuttal against expanding the participation opportunities for high
school athletes in Illinois," IHSA Executive Director Craig
Anderson said in a statement. "The IHSA has and continues to
believe that we can safely conduct high school sports in Illinois
throughout the 2020-21 school year ... If changes to that schedule
are forthcoming, we feel that the path to achieving them is through
collaboration with the Illinois Department of Public Health and
state leadership, as opposed to litigation."
In the lawsuit, the plaintiffs stated the IHSA Board of Directors
adopted a series of guidelines -- Return To Play and Contact Day
Guidelines -- that altered the 2020-21 sports seasons mandated by
the IHSA bylaws. The guidelines, according to the lawsuit, include
an outright ban on certain sports (football, boys soccer, girls
volleyball) during the time periods, to which the IHSA by-laws
limit those sports. The lawsuit argues these amendments to the IHSA
by-laws were not enacted through the legislative process that the
IHSA Constitution requires. The plaintiffs are asking the court to
find them invalid and void them.
"Again, we're in a pandemic. I'm sitting here in the courtroom and
I'm only allowed to have a certain number of people in the
courtroom. Everybody is wearing a mask, and I'm sitting behind
plexiglass to protect myself," Fullerton said. "The last pandemic
we had of this type was 100 years ago, so clearly, we're in special
circumstances. When things like this happen, people take action,
and I think what the IHSA did was at least within their bounds."
In his ruling, Fullerton said he has student-athlete children of
his own and that he understands how tough not playing sports this
fall is for all the athletes, especially seniors.
It remains to be seen if Ruggles and the other plaintiffs in the
case plan to move forward with time running out on the fall sports
season.
"The poorest kids among us continue to get screwed by this
incompetence and nobody stands up for them. Guys like me will be
fine because I'll take my kid over to Indiana, where he can compete
on the court and go to school," Ruggles said. "The leaders in
Indiana and Iowa have guts and advocate for the kids." [GN]
INTERNATIONAL PAPER: Court Narrows Claims in Ashworth Class Suit
----------------------------------------------------------------
In the case, LARRY W. ASHWORTH, v. INTERNATIONAL PAPER CO., ET AL,
Case No. 2:20-CV-00053 (W.D. La.), Judge James D. Cain, Jr. of the
U.S. District Court for the Western District of Louisiana, Lake
Charles Division, (i) granted in part and denied in part
International Paper's Motion to Dismiss, and (ii) denied its Motion
for More Definite Statement.
The action arises from claims of land contamination by Plaintiff
Ashworth, who asserts that his property has been damaged by toxic
waste from former creosote plants in Beauregard Parish, Louisiana.
Specifically, Mr. Ashworth identifies the International Paper site
(Parcel A) and the American Creosote site (Parcel B). He asserts
that creosoting operations ceased on Parcel A in 1989 and on Parcel
B in 1963.
Mr. Ashworth alleges that he first became aware of the
contamination less than one year before filing the suit, when he
witnessed dark colored thick liquid coming from the ground after
extracting a tree stump. He brings claims for damages and
injunctive relief based on theories of negligence (Count I), strict
liability (Count II), and continuing nuisance and trespass (Count
III). He asserts that he is also entitled to punitive damages
under former Louisiana Civil Code Article 2315.3 (Count IV).
As Defendants, Mr. Ashworth names various corporations as
owners/operators of the creosote plants, or successors to same.
Among these is International Paper, which now moves for dismissal
of all claims under Federal Rule of Civil Procedure 12(b)(6) and/or
a more definite statement under Rule 12(e). To this end it argues
that (1) the Plaintiff fails to allege facts supporting his
assumption that the contaminant on his property is creosote from
International Paper's plant; (2) the Plaintiff cannot prevail under
a theory of strict liability, nuisance, or continuing trespass; and
(3) the Plaintiff should be ordered to refine his conclusory
allegations. Doc.
The Court has already dismissed the strict liability, nuisance, and
continuing trespass claims against codefendant BNSF Railway Company
on an unopposed motion to dismiss, based on similar arguments to
the ones now asserted by International Paper. Mr. Ashworth has
failed to respond to International Paper's motion and his time for
doing so has passed. Accordingly, the motion is likewise regarded
as unopposed.
First, the Plaintiff has alleged the existence of a toxic plume of
creosote from the sites based on his discovery of waste with
"chemical constituents indicative of creosote by-products" after
disturbing the soil on his property five miles away. He has also
alleged contamination of the area's groundwater from International
Paper's operations. Given the proximity of the Defendants'
creosoting operations, the Plaintiff's allegations of a scientific
investigation, and the asserted theory of migration (through either
groundwater contamination or surface runoff), Judge Cain finds a
plausible link between International Paper's alleged actions and
the Plaintiff's alleged injuries. Accordingly, the motion to
dismiss is denied in this regard.
Mr. Ashworth has also raised strict liability claims against
International Paper under Louisiana Civil Code articles 667, 2317
and 2317.1, and 2322. To this end he has alleged that
International Paper had custody, control, and garde of damaging
chemicals associated with the creosoting process and is strictly
liable for the unreasonably dangerous condition caused by the
migration of these chemicals. International Paper maintains that
the cause of action fails under all of these provisions.
The Judge holds that (i) the Plaintiff has shown no basis for
liability under this article and the claims must be dismissed; (ii)
Mr. Ashworth fails to state a strict liability claim under these
articles as he has not described any vice or defect with respect to
any aspect of International Paper's creosoting operations; and
(iii) Mr. Ashworth fails to state a claim under Article 2322
because he describes no particular building owned by International
Paper that contributed to the damages alleged, nor does he allege
the ruin of any of International Paper's facilities.
International Paper argues that the claims against it for
continuing nuisance and trespass fail because the Plaintiff alleges
no ongoing conduct or presence of any neighbor. It also argues
that the nuisance claim fails due to the Plaintiff's inability to
show that he is a neighbor within the meaning of Louisiana's
nuisance statutes.
The Judge finds that Mr. Ashworth shows that his property is
approximately 5.1 miles away from Parcel A. The Plaintiff asserts
no basis under Louisiana statute or jurisprudence as to why he
should be considered a "neighbor" to property located such a
distance from his own. The Judge is reluctant to extend the
protection of the nuisance statutes to him, particularly when the
theory of liability here is based on underground migration of an
enormous toxic plume potentially impacting several non-adjacent
landowners. Accordingly, the distance is too attenuated for the
coverage likely implied by Louisiana's nuisance statutes and the
claim should also be dismissed on this basis.
Finally, International Paper argues that it is entitled to a more
definite statement on the Plaintiff's theories of liability. A
motion under Rule 12(e) should only be granted where the petition
is so vague that the moving party cannot reasonably be expected to
form a responsive pleading. As shown, however, Mr. Ashworth has
alleged the nature of the contamination at his property and from
International Paper's parcel with sufficient specificity to allow
International Paper to prepare a response. This motion will also
be denied.
For the reasons he stated, Judge Cain granted in part and denied in
part the Motion to Dismiss. The Judge denied the Motion for a More
Definite Statement.
A full-text copy of the Court's July 17, 2020 Memorandum Ruling is
available at https://bit.ly/3dVRsWm from Leagle.com.
J. JACOBO: Bid to Reconsider Rest Break Class Period End Date Nixed
-------------------------------------------------------------------
In the case, MARISOL GOMEZ and IGNACIO OSORIO, Plaintiffs, v. J.
JACOBO FARM LABOR CONTRACTOR, INC. Defendant, Case No.
1:15-cv-01489-AWI-BAM (E.D. Cal.), Judge Anthony W. Ishii of the
U.S. District Court for the Eastern District of California denied
the Defendant's motion to reconsider the Court's previous order
certifying the Plaintiffs' rest break claim for class aggregation
under Rule 23(b)(3) of the Federal Rules of Civil Procedure, but
slightly modified the first modification order.
In the class action lawsuit, a farm labor contractor is being sued
by its employees for violating California's wage-and-hour laws and
the federal Migrant and Seasonal Agricultural Workers Protection
Act of 1983 ("MAWPA"). The farm labor contractor is the Defendant.
The named Plaintiffs are two employees of the Defendant.
The Plaintiffs pleaded several claims against the Defendant,
including the following itemized wage statement claim and rest
break claim: (1) itemized wage statements - the Defendant failed to
issue properly itemized wage statements to its employees in
violation of Cal. Lab. Code Sections 226(B), 1174, 1175; and (2)
rest breaks - the Defendant failed to provide timely and complete
rest breaks to its employees or pay additional wages to its
employees in lieu of providing rest breaks in violation of Cal.
Lab. Code Sections 226.7, 512, and IWC Wage Orders 8, 13, 14.
The Plaintiffs also pleaded several claims that are "derivative" of
the rest break claim. In other words, they alleged that because
the Defendant failed to provide timely and complete rest breaks or
pay additional wages in lieu of providing rest breaks, the
Defendant is also liable for the following derivative claims: (3)
wages upon termination or resignation - the Defendant failed to pay
wages to its terminated or resigned employees in violation of Cal.
Lab. Code Sections 201, 202, and 203; (4) MAWPA violations - the
Defendant violated its employees' rights under MAWPA by providing
false and misleading information regarding terms and conditions of
employment; violating the terms of the employees' working
arrangements; failing to pay wages when due; and failing to provide
accurate itemized written statements; (5) Itemized wage statements
(as a derivative claim) - the Defendant failed to issue properly
itemized wage statements to its employees in violation of Cal. Lab.
Code Sections 226(B), 1174, 1175; and (6) unfair business
competition - the Defendant engaged in unfair business competition
in violation of Cal. Bus. & Prof. Code Sections 17200 et seq. by
engaging in the foregoing wage-and-hour violations.
The Plaintiffs moved to certify the foregoing claims for class
aggregation pursuant to Rule 23(b)(3). The Court then issued two
separate orders that together partially granted the Plaintiff's
motion for class certification. Specifically, in the first order
-- the "original certification order" -- the Court certified the
non-derivative wage statement claim for class aggregation. The
Court defined the class for the non-derivative wage statement claim
as follows: All individuals who were employed as a non-exempt
field worker or agricultural worker from Sept. 30, 2012, to Nov. 5,
2019, by J. Jacobo Farm Labor Contractor, Inc. In defining the
class, the Court specifically established the end date of the class
period as Nov. 5, 2019, which is the date of the original
certification order.
After the Court issued the original certification order, the
Plaintiffs moved the Court to reconsider the original certification
order. In response to the Plaintiffs' motion for reconsideration,
the Court issued the "first modification order." In the first
modification order, the Court certified the rest break claim and
derivative claims for class aggregation, and it defined the class
for those claims as follows: All individuals who have been
employed, or are currently employed, by the Defendant as a
non-exempt field worker or agricultural worker, who worked on a
piece rate basis at any time from Sept. 30, 2011 up to the present
and were not separately compensated for rest periods during their
piece rate shifts.
In the first modification order -- unlike in in the original
certification order -- the Court neglected to establish the end
date for the rest break class period as Nov. 5, 2019. Instead, the
Court used the end date that was supplied by the Plaintiffs -- and
not objected to by the Defendant -- namely, "to the present." It
was an oversight by the Court.
The Defendant now moves the Court to reconsider the first
modification order, specifically with respect to the end date of
the rest break class period. It argues that the end date for the
rest break class period should be changed from "to the present" to
Feb. 27, 2016. According to the Defendant, it is because the
Plaintiffs' payroll database expert, Aaron Wolfson, declared during
the briefing on the Plaintiffs' motion for class certification that
the Defendant began paying its employees for rest breaks on Feb.
27, 2016, and beyond.
Therefore, according to the Defendant, the rest break class period
should not encompass the time after Feb. 27, 2016, because
employees after that date were not "subject to the same unlawful
practice" that occurred prior to that date -- namely, not being
paid by the Defendant for rest breaks. According to the Defendant,
if the rest break class period includes the time after Feb. 27,
2016, then there will no longer be commonality amongst the class
members.
The Plaintiffs argue that the Defendant's motion should be denied
on procedural grounds because it is raising an argument for the
first time in a motion for reconsideration, and it could and should
have previously raised the argument in its opposition briefing to
their motion for class certification. The Plaintiffs also argue
that the Defendant's motion should be denied on substantive grounds
because, first, there is no legal requirement that a class be
ascertainable in order to be certified under Rule 23 and, second,
commonality will not be destroyed by including the time period
after Feb. 27, 2016.
Judge Ishii rejects the Defendant's argument that the end date for
the rest break class period should be changed to Feb. 27, 2016. It
is because it failed to raise the argument in its opposition
briefing to the Plaintiffs' motion for class certification. They
are appropriate only to correct manifest errors of law or fact or
to present newly discovered evidence. They are not to be used to
test new legal theories that could have been presented when the
original motion was pending.
Ever since they first moved for class certification, the Plaintiffs
proposed that the end date for the class period should be "to the
present." Yet, in its opposition briefing to the Plaintiffs'
motion for class certification, the Defendant failed to address the
issue of the end date, let alone the specific end date of Feb. 26,
2016. It appears clear to the Court that the Defendant could have
raised this issue in its opposition briefing, and the Defendant has
provided no explanation in its reconsideration motion for why it
did not do so. Consequently, the Defendant's argument is deemed
waived and procedurally improper for reconsideration.
However, pursuant to the Court's "inherent procedural power to
reconsider, rescind, or modify an interlocutory order for cause
seen by it to be sufficient, the Judge will modify the first
modification order with respect to the end date of the rest break
class period. As noted, it was due to the Court's oversight that
the first modification order established the end date of the rest
break class period as "to the present." That oversight will be
remedied. For the same reasons that the Court established Nov. 5,
2019, as the end date for the non-derivative wage statement class
period in the original certification order -- reasons that the
original certification order clearly explained and supported with
extensive case law -- the Judge will modify the end date for the
rest break class period to be Nov. 5, 2019.
Accordingly, based on the foregoing, Judge Ishii denied the
Defendant's motion for reconsideration.
The Judge modified the Court's first modification order in part, as
follows: The class for the Plaintiffs' rest break claim and
derivative wages upon termination claim, accurate itemized wage
statement claim, MAWPA claim, and unfair business practices claim
is defined as follows: All individuals who have been employed, or
are currently employed, by the Defendant as a non-exempt field
worker or agricultural worker, who worked on a piece rate basis at
any time from Sept. 30, 2011 to Nov. 5, 2019, and were not
separately compensated for rest periods during their piece rate
shifts.
The parties must promptly meet and confer about the submission of a
joint stipulated class notice and distribution plan. Within 21
days of the Order, the parties must file either a stipulated class
notice and distribution plan or a notice that no stipulation can be
agreed to. If the parties cannot agree to a class notice or
distribution plan, then the Plaintiffs must file a proposed class
notice and distribution plan within 35 days of the Order, and the
Defendant will have 14 days following the Plaintiffs' filing to
file any objections, and the Plaintiffs will have seven days
following the Defendant's filing to file a reply.
The case is referred back to the assigned magistrate judge for
further scheduling and other proceedings consistent with the
Order.
A full-text copy of the Court's July 17, 2020 Order is available at
https://bit.ly/2TleAEu from Leagle.com.
KAISER FOUNDATION: Schmitt Dismissal Upheld With Leave to Amend
---------------------------------------------------------------
In the case, ANDREA SCHMITT, on her own behalf, and on behalf of
all similarly situated individuals; ELIZABETH MOHUNDRO, on her own
behalf, and behalf of all similarly situated individuals,
Plaintiffs-Appellants, v. KAISER FOUNDATION HEALTH PLAN OF
WASHINGTON; KAISER FOUNDATION HEALTH PLAN OF THE NORTHWEST; KAISER
FOUNDATION HEALTH PLAN, INC., Defendants-Appellees, Case No.
18-35846 (9th Cir.), the U.S. Court of Appeals for the Ninth
Circuit (i) affirmed the district court's dismissal of the second
amended complaint, but (ii) reversed the district court's dismissal
without leave to amend, and (iii) remanded so that Schmitt and
Mohundro have that opportunity.
Section 1557 of the Patient Protection and Affordable Care Act
("ACA") prohibits covered health insurers from discriminating based
on various grounds, including disability. Prior to the ACA's
enactment, an insurer could generally design plans to offer or
exclude benefits as it saw fit without violating federal
antidiscrimination law—in particular, the Rehabilitation Act --
so long as the insurer did not discriminate against disabled people
in providing treatment for whatever conditions it chose to cover.
Schmitt and Mohundro are insured by Kaiser under policies offered
through their respective employers. They both have been diagnosed
with disabling hearing loss. They require treatment other than
cochlear implants, such as outpatient office visits to a licensed
audiologist and hearing aids or other durable medical equipment or
prosthetic devices. Their Kaiser policies cover cochlear implants
and related screening tests but exclude all other programs or
treatments for hearing loss and hearing care.
In October 2017, Schmitt and Mohundro filed the class action
against Kaiser, asserting a single claim under the ACA. They
alleged that Kaiser's exclusion of all treatments for hearing loss
other than cochlear implants discriminates against putative class
members on the basis of their disability in violation of section
1557. The district court granted Kaiser's motion to dismiss their
second amended complaint for failure to state a claim and entered
judgment.
The district court concluded that insurers have discretion over the
scope of benefits provided in the first instance so long as they
provide the benefits offered in a non-discriminatory manner. It
therefore ruled that Schmitt and Mohundro's allegations do not give
rise to a plausible inference that they were excluded from
participation in or denied the benefits of their health plan under
the ACA because the benefits the Plaintiffs seek are not part of
the plan in which they participate.
Although the court suggested that a coverage exclusion or
limitation might be impermissible and a violation Section 1557 if
it were motivated by discriminatory intent, it did not address the
issue. The court found that Schmitt and Mohundro failed to raise
an inference of discrimination because the hearing loss exclusion
is not designed with reference to a disability and applies to both
disabled and nondisabled plan participants.
The primary issue before the Ninth Court is whether the ACA's
nondiscrimination mandate imposes any constraints on a health
insurer's selection of plan benefits. It holds that it does. The
Court agrees with the district court that Schmitt and Mohundro have
failed to state a plausible discrimination claim. The ACA
specifically prohibits discrimination in plan benefit design, and a
categorical exclusion of treatment for hearing loss would raise an
inference of discrimination against hearing disabled people
notwithstanding that it would also adversely affect individuals
with non-disabling hearing loss. But the exclusion in the case is
not categorical. While Kaiser's coverage of cochlear implants is
inadequate to serve Schmitt and Mohundro's health needs, it may
adequately serve the needs of hearing disabled people as a group.
Because the pleadings do not suggest otherwise, the Ninth Circuit
affirmed the district court's dismissal of the second amended
complaint. But because amendment may not be futile, it reversed
the district court's dismissal without leave to amend, and remanded
so that Schmitt and Mohundro have that opportunity
A full-text copy of the Ninth Circuit's July 14, 2020 Opinion is
available at https://bit.ly/3ksimYy from Leagle.com.
Eleanor Hamburger -- ehamburger@sylaw.com -- (argued) and Richard
E. Spoonemore -- rspoonemore@sylaw.com -- Sirianni Youtz Spoonemore
Hamburger PLLC, Seattle, Washington, for Plaintiffs-Appellants.
Medora A. Marisseau -- mmarisseau@karrtuttle.com -- (argued) and
Mark A. Bailey -- mbailey@karrtuttle.com -- Karr Tuttle Campbell,
Seattle, Washington, for Defendants-Appellees.
Huma Zarif, Northwest Health Law Advocates, Seattle, Washington;
Sarah Somers, Elizabeth Edwards, and Wayne Turner, National Health
Law Program, Carrboro, North Carolina; for Amici Curiae National
Health Law Program and Northwest Health Law Advocates.
Carly A. Myers, Silvia Yee, and Arlene B. Mayerson, Disability
Rights Education & Defense Fund, Berkeley, California, for Amici
Curiae Disability Rights Education and Defense Fund; National
Association of the Deaf; Bazelon Center for Mental Health Law;
Hearing Loss Association of America; Hearing Loss Association,
Oregon State Association; Washington State Communication Access
Project; Oregon Communication Access Project; and California
Communication Access Project.
KEVITA KOMBUCHA: Deadline for Claims in Class Deal Set for Jan. 14
------------------------------------------------------------------
The Penny Hoarder reports that if you've had a fridge on the fritz
or a microwave that looks like it's having its own Fourth of July
celebration inside, you may be eligible for part of these
class-action settlements.
* KeVita Master Brew Kombucha: Pasteurizing Claims
If you bought KeVita Master Brew Kombucha prior to Sept. 16, 2020,
you may be able to claim up to $60 from a class-action settlement.
Plaintiffs accused the beverage company of mislabeling the drinks
as being made without pasteurization.
While kombucha is a fermented tea-based drink that usually has live
probiotics, KeVita Kombucha products allegedly were subject to
pasteurization, which kills both harmful bacteria and helpful
probiotics.
Even though the probiotics could not survive the pasteurization
process, KeVita allegedly continued to ship the products in
refrigerated trucks and included a warning to consumers to keep the
drink refrigerated.
KeVita and parent company PepsiCo admitted no wrongdoing, but
agreed to the settlement to end the litigation.
The settlement agreement provides $0.30 per product purchased
before Sept. 16, 2020. Class members can claim up to $60 with proof
of purchase, such as receipts. Class members without proof of
purchase can claim between $3 and $9.
We have the list of covered flavors and the details you need to
file your valid claim by Jan. 14, 2021.
* Sharp Microwave Drawer Oven: Fire-Risk Defect
If you own a Sharp microwave drawer oven that was installed in your
residential property between Jan. 1, 2009 and Aug. 5, 2020, you may
be eligible for either $250 cash or a $500 voucher due to a class
action settlement.
Plaintiffs alleged the microwaves were manufactured with a serious
fire-risk defect and that Sharp failed to warn consumers.
Consumers said they could see "arcing" as evidenced by sparks or
flashes seen within the microwave drawer oven when it was being
used. Consumers also said they sometimes heard a buzzing noise or
saw smoke.
While not admitting to any wrongdoing, Sharp agreed to resolve the
claims by approving the settlement.
Class members may choose between receiving a replacement Sharp
microwave drawer oven, a $250 cash payment or a $500 voucher to be
used towards any other Sharp product. Claimants may also receive
reimbursement for labor costs of up to $150 for microwave repairs
or inspections and up to $200 to pay for repairs of adjacent
cabinetry.
In addition, a warranty extension of one year to five years may be
available to cover any arcing events.
You must submit your valid claim by May 7, 2021.
* LG Refrigerator: Cooling Defect
You may be entitled to a portion of a $1.5 million class-action
settlement if you bought a certain model of LG refrigerator from an
authorized dealer between Jan. 1, 2014 and Dec. 31, 2017.
Plaintiffs said the refrigerators failed to keep cool and resulted
in their food spoiling.
LG has not admitted to any wrongdoing, but agreed to settle the
class-action lawsuit.
Without proof of purchase, cash payments up to $450 are available
to class members, but those with proof of purchase may receive
$6,000 or more. Extended warranties on covered LG refrigerators may
be available as well.
The list of circumstances and possible payment amounts is lengthy
and specific. Check out the details and submit your claim by the
Jan. 11, 2021 deadline.
* 3M: Dental Crown Defect
Dentists and dental practices in the U.S. who purchased and used
3M's Lava Ultimate Restorative material for a dental crown prior to
June 15, 2020 on patients who experienced debonding of the crown
before Sept. 7, 2020 may be eligible for a portion of a $32.5
million class-action settlement.
3M was accused of violating the terms of its warranty for dental
crown bonding product Lava Ultimate Restorative, which is a ceramic
material intended to dry and form a crown in dental procedures.
Dentists said as patients came back for repairs or replacements
that the dentists allegedly had to make such amends at their own
costs.
Class members are eligible for either full reimbursement for
out-of-pocket costs related to the debonding of the 3M crowns or
$250 per debond.
The original claim form deadline was Aug. 8, 2019 for debonds
repaired on or before May 10, 2019, but now a supplemental deadline
of Dec. 8, 2020 exists for debonds repaired between May 11, 2019
and Sept. 7, 2020.
Eligible class members should file a claim prior to the Dec. 8,
2020 deadline.
* Great Value & Market Pantry Coffee: Deceptive Packaging
A number of food manufacturers have agreed to a $20 million ground
coffee class-action settlement regarding allegations that deceptive
packaging tricked consumers into believing they could brew more
coffee that was actually feasible.
If you bought ground coffee under the names Great Value, Bonus
Blend, Flavor Peak, Food Lion, Hannaford, Market Pantry and
Signature Select in packaged cans, vacuum bricks or jars between
Jan. 1, 2016 and July 29, 2020, you could be eligible for
compensation. Coffee that was purchased and sold in bags is not
eligible.
Defendants in the case included Massimo Zanetti Beverage USA,
Mother Parker's Tea & Coffee USA, Ltd. and Reily Foods Company. The
companies faced allegations that certain brands they produced were
mislabeled regarding the number of cups of coffee the consumer
could make after buying the products, and the consumers said they
relied on the accuracy of the labels when they made their
purchasing decision. None of the companies admitted to wrongdoing.
Consumers may claim $1 per qualifying product purchased up to $5
without proof of purchase or up to $30 with proof of purchase.
Valid claims must be filed by Nov. 18, 2020.
* Everi: Debit Card Receipts Violation
Everi Holdings Inc. has agreed to a $14 million class-action
settlement to resolve claims the company violated the Fair and
Accurate Credit Transactions Act (FACTA).
The casino game maker, which also provides financial equipment and
services to casinos, allegedly printed both the first and last four
digits of debit card numbers on receipts in a field labeled "BIN."
According to federal law, only the last four digits of a credit or
debit card number may appear on electronically printed receipts. No
other digits -- including the card's expiration date -- may
lawfully appear on such receipts.
Plaintiffs say they and other consumers were at greater risk of
identity theft due to the receipts Everi provided, according to the
lawsuit.
Everi did not admit to any wrongdoing, but agreed to settle the
lawsuit to resolve the claims against them.
If Everi provided you a credit or debit card receipt that included
four digits in a field labeled "BIN" between Feb. 16, 2016 and Dec.
31, 2019, you could be eligible for payments between $40 and $60.
These amounts will be distributed on a proportional basis, but will
depend upon the number of valid claims received and the net
settlement fund after deductions of fees, expenses and service
awards.
While some class members may have received a claim number and
confirmation code by mail or email, others may not have received
such a notice. We hav information on how to complete a claim form
by the Feb. 1, 2021 deadline.
* Customized Silicone Wristbands: Price Fixing
If you bought customized silicone wristbands or customized pin
buttons between June 1, 2014 and June 23, 2020, you could be
eligible for a portion of a $3.5 million class-action settlement
pot.
Manufacturers, including Netbrands, Gennex, Custom Wristbands and
Zaappaaz, allegedly conspired to fix the prices of customized
silicone wristbands and pin buttons that forced customers to pay
higher prices. Such price fixing is illegal.
The class-action lawsuit referred to a federal investigation that
reportedly resulted in guilty verdicts for Zaappaaz, Custom
Wristbands and several of their executives. As a result, Zaappaaz
purportedly paid almost $2 million in fines and Custom Wristbands
paid more than $400,000 in fines that went to the federal
government for the violations of antitrust laws.
The lawsuit alleges consumers also should be compensated by the
companies that allegedly fixed prices higher than they should have
been.
None of the manufacturers have admitted any wrongdoing, but Custom
Wristbands has agreed to pay $290,000; Gennex will pay $140,000;
Netbrands has agreed to pay $2.5 million; and Zaappaaz will pay
$625,000.
Exact settlement payments will depend upon how many products a
claimant bought, how many claims are filed and the amount deducted
in fees.
Purchase dates that are covered vary by brand and are as follows:
Netbrands: June 1, 2014 to Feb. 19, 2020
Gennex: June 1, 2014 to Jan. 23, 2020
Custom Wristbands: June 1, 2014 to Feb. 6, 2020
Zaappaaz: June 1, 2014 to June 23, 2020
Check out the complete details and the claim form by Dec. 13, 2020.
[GN]
KEYSTONE RV: Court Denies Class Certification in Cole Suit
----------------------------------------------------------
In the case, JUDITH COLE, et al., Plaintiffs, v. KEYSTONE RV
COMPANY, Defendant, Case No. C18-5182RBL (W.D. Wash.), Judge Ronald
B. Leighton of the U.S. District Court for the Western District of
Washington, Tacoma, (i) denied the Plaintiff Cole's Motion to
Certify Class, (ii) granted in part and denied in part Defendant
Keystone's Motion to Exclude Cole's Expert, Joellen Gill; and (iii)
granted Defendant Keystone's Motion to Exclude Cole's Expert, John
Walker.
Cole and the other named Plaintiffs, Michael and Johnson, purchased
Keystone Recreational Vehicles, and occupied them full time. They
claim Keystone did not meaningfully inform them of the risk of
serious injury resulting from this ordinary use of Keystone RVs,
specifically, the adverse health effects of prolonged occupancy and
indoor air quality due to moisture, mold, and formaldehyde. They
assert claims under the Washington Consumer Protection Act, arguing
they were harmed at the point of purchase by paying more than the
RVs were worth. They seek economic damages, and they seek to
certify a class of all such purchasers of Keystone RVs in
Washington State since March 2013.
Cole seeks to certify as a class of all persons who have purchased
a new or used Keystone RV in Washington in the last four years.
The class seeks economic damages based on the difference in fair
market value between the RVs as represented and what they would
have been worth, if the health hazards had been properly
disclosed.
Keystone opposes certification, arguing first that the named
Plaintiffs (Cole, Michael and Johnson) lack standing because none
has alleged an injury in fact caused by their purchase of Keystone
RV. It also argues that the Plaintiffs cannot meet their Federal
Rule of Civil Procedure 23(a) obligation to demonstrate numerosity,
commonality, and typicality. It also argues that the Plaintiffs
cannot meet their Rule 23(b) obligation to show either that the
class issues predominate over individual ones, or that a class
action is superior to other available methods for efficiently
resolving the controversy.
Keystone also moves the Court to exclude two of Cole's expert
witnesses under Fed. R. Evid. 702 and Daubert v. Merrell Dow
Pharms, Inc. It claims that her "human factors" expert, Gill, is
not qualified and her untested opinions are not relevant or
admissible. It argues that Cole's other expert, Walker (a vehicle
appraiser), has supplied an inadmissible Declaration purporting to
opine that "all Keystone owners 'have a claim' against Keystone."
Judge Leighton finds that (i) the Plaintiffs have satisfied Rule
23(a)'s numerosity requirement; (ii) the Plaintiffs have not
demonstrated that their claims are typical of the class, such that
class treatment is appropriate under Rule 23(a); (iii) the
Plaintiffs have not demonstrated that their claims meet Rule
23(a)'s commonality requirement (which they are required to do in
any event), or that they meet Rule 23(b)(3)'s requirement that such
claims "predominate," as all the evidence suggests instead that
their claims are individualized. The Judge also is not persuaded
that class resolution of the three named Plaintiffs' claims is
superior to litigation of those claims individually.
For these reasons, Judge Leighton denied the Motion for Class
Certification. Plaintiff Cole's, Michael's, and Johnson's
individual claims will proceed to trial, but not as a class
action.
Turning to the Motions to Exclude, the Judge finds that Gill's
opinions are marginally relevant, and will be subject to presumably
robust cross examination on these and other points. But her
opinions about the efficacy of Keystone's warnings about mold and
moisture generally are admissible, barely. Keystone's Motion to
exclude them is denied.
Gill's final opinion, that Keystone failed to properly warn about
the risks of formaldehyde exposure, are a bridge too far, the Court
notes. She does not know or opine that formaldehyde is even in the
RVs, or at what levels, and as discussed, there is no evidence of
any formaldehyde exposure in the case. Hence, Gill's opinions on
this topic are excluded.
Walker's opinions have no demonstrated basis; they are little more
than ipse dixit, the Court adds. His 30% and 50% "discounts" are
seemingly pulled from thin air. He is admittedly unqualified to
opine about whether the Plaintiffs "have claims" or "should be able
to" rescind their purchases or obtain a retroactive discount; those
are legal questions for the Court. Walker is not qualified, and
his opinions are neither reliable nor relevant. Hence, the Court
granted the Motion to Exclude Walker's opinions.
A full-text copy of the District Court's July 14, 2020 Order is
available at https://bit.ly/2TrQJTm from Leagle.com.
KIMBERLY-CLARK CORP: 9th Cir. Vacates Judgment in Bahamas Suit
--------------------------------------------------------------
In Bahamas Surgery Center's lawsuit against Kimberly-Clark Corp, et
al., the U.S. Court of Appeals for the Ninth Circuit:
(i) vacated the district court's judgment against Defendant
Halyard and remanded with instructions to dismiss in Case
No. 18-55483;
(ii) vacated the district court's judgment against Defendant
Kimberly-Clark in Case No. 18-55478 and remanded for
further proceedings; and
(iii) dismissed as moot Bahamas' appeal from the district court's
reduction of the jury's punitive damages awards, and its
conditional appeal from the district court's rejection of
one of its damages models.
The cases are BAHAMAS SURGERY CENTER, LLC, DBA Bahamas Surgery
Center, a California limited liability company, on behalf of itself
and all others similarly situated, Plaintiff-Appellee, v.
KIMBERLY-CLARK CORPORATION, a Delaware Corporation,
Defendant-Appellant, and HALYARD HEALTH, INC., a Delaware
Corporation, Defendant. BAHAMAS SURGERY CENTER, LLC, DBA Bahamas
Surgery Center, a California limited liability company, on behalf
of itself and all others similarly situated, Plaintiff-Appellee, v.
HALYARD HEALTH, INC., a Delaware Corporation, Defendant-Appellant,
and KIMBERLY-CLARK CORPORATION, a Delaware Corporation, Defendant.
BAHAMAS SURGERY CENTER, LLC, DBA Bahamas Surgery Center, a
California limited liability company, on behalf of itself and all
others similarly situated, Plaintiff-Appellant, v. KIMBERLY-CLARK
CORPORATION, a Delaware Corporation; HALYARD HEALTH, INC., a
Delaware Corporation, Defendants-Appellees, Case Nos. 18-55478,
18-55483, 18-55558 (9th Cir.).
In Case No. 18-55478, Defendant KC appeals the district court's
judgment, following a jury trial, in a class action brought against
it by class representative Bahamas regarding surgical gowns
manufactured and sold by KC, which were labeled as compliant with
the AAMI Liquid Barrier Level 4 standard. In Case No. 18-55483,
Defendant Halyard appeals the district court's judgment against it
in the same action. In Case No. 18-55558, Bahamas appeals the
district court's reduction of the jury's punitive damages awards,
and conditionally appeals the district court's rejection of one of
its damages models.
The Ninth Circuit will vacate the judgment.
Halyard asserts that the district court erred when it determined
that Bahamas had standing to sue it. The Ninth Circuit agrees.
Bahamas has no claim against Halyard because it purchased no gowns
from it, and any injuries it has are not traceable to Halyard's
conduct. Without a claim of its own, Bahamas cannot seek relief on
behalf of itself or any other member of the class. Even if other
class members have valid claims against Halyard, that cannot
retroactively cure the district court's improper certification of a
class wherein the named Plaintiff (Bahamas) lacked standing to
pursue those claims. Because Bahamas never had standing to sue
Halyard, the Ninth Circuit will set aside the judgment against
Halyard and will remand with instructions to dismiss the claims
against it.
Next, KC argues that the district court abused its discretion by
refusing to decertify the fraudulent concealment class because
individual issues predominated in the class with regard to the
materiality of the purported omissions. The Appellate Court again
agrees. It holds that the district court abused its discretion in
failing to decertify the class because the evidence that it relied
upon to demonstrate the materiality of the testing failures to the
entire class applied only to the subset of transactions in which
class purchasers had seen representations about the Gowns' AAMI
rating. Moreover, there is no evidence that a reasonable person
would attach importance to AAMI test failures in a transaction for
purchase of a package of surgical goods where the Gowns' AAMI
rating was not noted on the package. Those transactions comprised
the majority of class purchases.
Because the record does not support the conclusion that common
questions regarding the materiality of the omissions predominated
in the defined class, the district court abused its discretion in
failing to decertify the class. The Court will therefore vacate
the judgment as to KC and will remand for further proceedings.
In light of these conclusions, the Ninth Court did not reach the
other assignments of error raised by the parties. It vacated and
with instructions to dismiss in Case No. 18-55843. It vacated and
remanded for further proceedings consistent with its disposition in
Case No. 18-55478. The Court dismissed as moot in Case No.
18-55558. Bahamas will bear costs on appeal.
A full-text copy of the Ninth Circuit's July 23, 2020 Memorandum is
available at https://bit.ly/2Tn1tT2 from Leagle.com.
LANCER FOOD: Gardner Suit Seeks Conditional Class Certification
---------------------------------------------------------------
In the class action lawsuit captioned as ROBIN GARDNER,
individually and on behalf of all other similarly situated
individuals, v. LANCER FOOD HOLDINGS, LLC (d/b/a LANCER
HOSPITALITY, INC.), and LANCER MANAGEMENT SERVICES, INC., Case No.
0:20-cv-00493-KMM (D. Minn.), the Plaintiff asks the Court for an
order granting his Unopposed Motion for Conditional and Class
Certification and for Preliminary Approval of Settlement.
The Defendants are doing business in the caterer & hospitality
industry.
A copy of Plaintiff's unopposed motion for conditional and class
certification is available from PacerMonitor.com at
https://bit.ly/3mueacb at no extra charge.[CC]
Attorneys for the Plaintiff, the Putative FLSA Collective, and the
Putative Minnesota Rule 23 Class, are:
Michele R. Fisher, Esq.
Kayla M. Kienzle, Esq
NICHOLS KASTER, PLLP
4600 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
Facsimile: (612) 215-6870
E-mail: fisher@nka.com
kkienzle@nka.com
LLOYD'S UNDERWRITERS: Guardian Law Group Launches Class Action
--------------------------------------------------------------
Tim Kalinowski, writing for Lethbridge Herald, reports that
Calgary-based Guardian Law Group is launching a class-action
lawsuit on behalf of business owners who have been denied insurance
coverage for losses sustained due to COVID-19 under the "all risks"
policy from Lloyd's Underwriters.
Guardian Law Group is also open to potentially launching other
class actions against other insurers besides Lloyd's Underwriters
if there are business owners who have been denied coverage for
COVID-19 losses under similar "all risks" policies.
"This one is against Lloyd's, but we suspect as things go ahead
there will be people who contact us who had similar experiences
with other insurance companies," confirms Guardian Law Group
attorney Mathew Farrell. "In this case, one person who is in
Calgary has stood up and said, 'This is not fair. I paid my
insurance premiums. Something bad happened, and that is what
insurance is supposed to cover, but they are not. And that's not
right.'"
The way a class action works is usually there is one or a few named
complainants which stand in for all classes of the same type out
there. If successful, any claim received from the lawsuit is paid
out equally to everyone in the same circumstance as the named
complainant.
"This particular client is a landlord," explains Farrell, "and in
this case it had to do with business interruption associated with
his rental properties. But it is the same policy whether we are
talking about rental properties or other businesses. I think for
most people this particularly speaks to interruptions in business
(due to COVID-19)."
Farrell says similar class actions have been launched already
across North America, but have yet to be tested in court.
"Where the rubber meets the road here," Farrell states, "and where
the battle lines are going to be drawn, is the policy says that it
covers anything bad that happens to you that causes a loss with
respect to property. It is talking about physical property. If
there is damage to physical property, then there is a loss.
"Here, the argument is that COVID-19 is a physical thing that
happens in the world that affects you physically, and affects the
usability and safety of your property physically just like damage
from a fire would affect the feasibility of your property É Here,
just because the thing that is dangerous is too small to see
doesn't make it any less physical, and doesn't mean the policy
should be any less engaged."
Farrell says any business in the Lethbridge area covered by Lloyd's
Underwriters "all risks" policy, or those who may be interested in
pursuing similar class-action lawsuits against other insurance
providers, should visit the Guardian Law Group website and register
their names with the firm.
"The insurance policy says all risks, and that should mean all
risks," Farrell concludes. "The point is it should cover the things
we didn't foresee, and this is a great example of something we
didn't foresee. That doesn't mean the insurance company is supposed
to get out of it. That means the insurance company is supposed to
help you, because that's why you paid your premiums." [GN]
LOWE'S COS: Can Compel 94 Opt-Ins in Danford FLSA Suit to Arbitrate
-------------------------------------------------------------------
In the case, DANIEL DANFORD, individually and on behalf of all
other similarly situated individuals, Plaintiffs, v. LOWE'S
COMPANIES, INC. and LOWE'S HOME CENTERS, LLC, Defendants, Civil
Action No. 5:19-CV-0041-KDB-DBK (W.D. N.C.), Judge Kenneth D. Bell
of the U.S. District Court for the Western District of North
Carolina, Statesville Division, granted Lowe's Motion to Compel
Arbitration.
The case is a putative class action suit under the Fair Labor
Standards Act ("FLSA"), in which the Plaintiffs allege that the
Defendants failed to pay certain hourly managers for all time
worked in violation of FLSA and various state laws.
Lowe's is a retail company specializing in home improvement.
Headquartered in Mooresville, North Carolina, Lowe's operates a
chain of retail stores in the United States and Canada. As of
February 2018, Lowe's and their related businesses operate more
than 2,390 home improvement and hardware stores and employ over
310,000 people in North America.
Lowe's employs non-exempt hourly managers, including Department
Managers, Service Managers, and Support Managers to supervise and
oversee the retail stores, or various departments within the retail
stores, and to manage the retail stores' employees. Hourly
Managers are required to work a full-time schedule, with occasional
overtime; however, the Plaintiffs allege that the Hourly Managers
were not compensated for all the hours worked during their shifts.
On Oct. 2, 2019, the Court conditionally certified the FLSA
collective class, approved a notice to potential opt-ins, and set
up an opt-in deadline. Of the 3,896 individuals who filed opt-in
forms and thereby joined the lawsuit as Plaintiffs, Lowe's
identified 1,075 opt-ins who were allegedly bound by arbitration
agreements. Of those opt-ins, 945 conceded that they are subject
to arbitration and thus consented to their dismissal from the case.
Thus, there remain 94 opt-in Plaintiffs who Lowe's claims are
bound by arbitration agreements who have objected to arbitration.
Each of the 94 Opt-In Plaintiffs received an offer letter from
Lowe's. The letters were provided via an electronic portal, which
sent an email notification to the individual's email address, which
was provided to Lowe's by the employee during the job application
process. Each letter contained an explicit arbitration provision.
The Plaintiffs do not dispute having had notice of these written
offers or their contents, nor do they dispute that each of them
started working in the offered position. However, the 94 Opt-In
Plaintiffs assert that they are not obligated to arbitrate their
claims, arguing that Lowe's lacked physical or electronic
signatures which they claim call into question whether or not the
individuals truly agreed to arbitrate their employment claims
against Lowe's.
Now, the Defendants move to compel the 94 Opt-In Plaintiffs to
arbitration based on the arbitration provisions in the employment
or promotion offers that Lowe's made to them.
Judge Bell concludes that 94 Opt-In Plaintiffs have failed to show
that they did not assent to the agreement to arbitrate. The state
law in each of the opt-ins' respective states holds that there need
not be a signature in order for the arbitration provision to be
binding. Further, the opt-ins accepted the terms of their
employment offers by accepting and performing their new jobs at
Lowe's. Therefore, the 94 Opt-In Plaintiffs must arbitrate their
claims and will be dismissed from the suit.
For these reasons, Judge Bell granted Lowe's Motion to Compel
Arbitration and For Dismissal of 94 Opt-In Plaintiffs' Claims. The
94 Opt-In Plaintiffs will arbitrate their claims as provided in
their employment offers and are dismissed from the lawsuit.
A full-text copy of the District Court's July 10, 2020 Order is
available at https://bit.ly/35p2TlG from Leagle.com.
LYFT INC: Faces Shareholder Derivative Action
---------------------------------------------
Law360 reports that Lyft Inc. is now facing a shareholder
derivative action after it was unable in September to land a full
dismissal of a putative securities class action claiming it misled
investors in the leadup to its March 2019 initial public offering.
[GN]
MARICOPA COUNTY, AZ: Partly Compelled to Show TASC's MDPP Files
---------------------------------------------------------------
In the case, Deshawn Briggs, et al., Plaintiffs, v. Allister Adel,
et al., Defendants, Case No. CV-18-02684-PHX-EJM (D. Ariz.),
Magistrate Judge Eric J. Markovich of the U.S. District Court for
the District of Arizona granted in part the Plaintiffs' Motion to
Compel Production of Defendant Treatment Assessment Screening
Center, Inc. ("TASC")'s MDPP Program Files.
Named Plaintiffs Antonio Pascale, Briggs, and Lucia Soria filed the
class action lawsuit on behalf of themselves and other similarly
situated individuals against Defendants Maricopa County, Adel in
his official capacity as Maricopa County Attorney, and TASC, under
a Section 1983 theory of liability. The Plaintiffs filed their
initial complaint on Aug. 23, 2018, alleging claims under Section
1983 for wealth-based discrimination in violation of the
Plaintiffs' Fourteenth Amendment rights, and unreasonable search
and seizure in violation of their Fourth and Fourteenth Amendment
rights.
The Defendants conducted the Marijuana Deferred Prosecution Program
("MDPP") in which the Plaintiffs were enrolled. The Plaintiffs
allege that their participation in the program was involuntarily
extended solely because they were too poor to pay required program
fees, thus violating their constitutional rights. The case is now
proceeding on the second amended complaint filed by the Plaintiffs
on Sept. 23, 2019. The Plaintiffs are seeking compensatory
damages, punitive damages, damages for pain and suffering, and
declaratory and injunctive relief.
On Sept. 12, 2019, the Court entered its Scheduling Order in the
case bifurcating discovery into two parts: a class certification
phase, to culminate in a class certification hearing, and a merits
phase.
On Sept. 16, 2019, the Plaintiffs served the Defendants with their
first set of discovery requests, seeking as relevant to their case
for class certification the program files of all individuals who
have participated in MDPP since Jan. 1, 2017. TASC responded to
the request on Oct. 16, 2019, refusing to produce the program files
of MDPP participants other than the named Plaintiffs. The
Plaintiffs served TASC with a deficiency letter on Oct. 25, 2019,
responding to TASC's objections and requesting to meet and confer.
The parties held a conference on Nov. 19, 2019 and agreed to narrow
the number of case files sought through stipulations. The
Plaintiffs proposed stipulations to TASC on Dec. 13, 2019, but TASC
objected. The parties then held a second meet and confer on Jan.
13, 2020. TASC proposed a new set of stipulations on Jan. 20,
2020, but the Plaintiffs objected that TASC's proposed stipulations
failed to obviate their need for discovery of the MDPP
participants' program files. The Plaintiffs then sought relief
from the Court during a telephonic discovery dispute call on Jan.
27, 2020, and the Court ordered the parties to brief the issue.
The Plaintiffs filed their motion to compel TASC to produce the
requested MDPP program files on Feb. 14, 2020. TASC filed its
response on Feb. 28, 2020, and the Plaintiffs filed their reply and
requested oral argument on March 6, 2020. On April 1, 2020, TASC
filed a motion for supplemental briefing to address the
requirements of the Public Health Service Act ("PHSA"). The
Plaintiffs agreed that supplemental briefing was necessary, and the
Court granted TASC's motion and set a briefing schedule. TASC
filed its supplemental brief on May 18, 2020. The Plaintiffs filed
their response on June 1, 2020, and TASC filed its reply on June 8,
2020.
According to the Plaintiffs' review of the named Plaintiffs'
program files, the MDPP program files contain the following
information: (1) a participant's program start and end dates, and
whether a participant's term of participation was extended; (2)
whether a participant was terminated from the program, including
whether that termination was due to nonpayment of fees; (3)
payments made for drug testing and fees; (4) documents participants
provided showing their indigence; (5) case notes and communications
between participants and their case managers, including statements
by participants that they could not afford the fees and statements
by case managers that participants cannot complete the program
without paying all required fees; (6) violation and termination
letters sent by TASC; (7) client contracts stating that the failure
to make minimum monthly payments will result in the case being
returned for prosecution; (8) intake forms documenting income and
public assistance benefits; and (9) a participant's drug testing
history, including whether the participant missed any tests.
The Plaintiffs seek disclosure of the MDPP program files for all
program participants since Jan. 1, 2017. They contend that the
files are not only relevant to class certification, but key to
their case. The Plaintiffs argue that their motion to compel
should be granted because the requested discovery is highly
relevant and proportional to the needs of the case, and because it
will not create an undue burden on TASC.
TASC argues that the Plaintiffs' motion to compel should be denied
as premature because the parties have not made an honest, good
faith effort to resolve their discovery dispute without judicial
intervention. Alternately, TASC argues that Plaintiffs' motion
should be denied on the merits because the request is overbroad and
irrelevant to class certification, and because the request is not
proportional to the needs of the case and will place an undue
burden on TASC.
Magistrate Judge Markovich finds that the Plaintiffs' motion to
compel should be granted in part for the following reasons. First,
the parties have made a reasonable effort to resolve their
discovery dispute without judicial intervention. Second, the
Plaintiffs have made a prima facie showing that the class action
requirements of Rule 23 are satisfied and that the information they
request is necessary and relevant to prove a pattern or practice of
wealth-based discrimination by TASC. Third, the Plaintiffs do not
seek discovery of any privileged information, and any documents
that are protected by attorney-client privilege or the work product
doctrine can be redacted by TASC. Fourth, although the requested
program files may be protected under HIPAA, disclosure is
nonetheless authorized by the terms of the Protective Order already
in place in the case.
And, although the requested information identifying patients as
having or having had substance use disorders and obtained for the
purpose of diagnosis, treatment, or referral is protected under
PHSA, TASC may still disclose the files in compliance with PHSA by
redacting the applicable documents. However, because TASC
persuasively argues that the Plaintiffs' discovery request would
impose an undue burden of production on it, the Magistrate will
order the parties to negotiate a sampling procedure that will allow
the Plaintiffs access to the information that they need to prove
their case for class certification while reducing TASC's burden of
disclosure.
Accordingly, for the reasons stated, Magistrate Judge Markovich
granted in part the Plaintiffs' Motion to Compel. The Magistrate
Judge finds that (i) the information sought in the Plaintiffs'
discovery request is both necessary and relevant to their case for
class certification; (ii) to the extent the MDPP program files
contain any privileged communications, TASC can protect the
privileged information by redacting it and submitting a privilege
log; (iii) while information in the program files is protected
under HIPAA, the information can still be disclosed pursuant to the
Protective Order already entered in the case; (iv) although some of
the program files contain information protected under PHSA, TASC
can still lawfully disclose the information by making appropriate
redactions; and (v) requiring TASC to disclose all of the program
files from the relevant time period would be unduly burdensome.
The burden is partially alleviated by the Plaintiffs' agreement to
exclude certain documents from their discovery request. To further
reduce TASC's burden, the Court will require the parties to
negotiate a sampling procedure that will provide the Plaintiffs
with a representative sample of the MDPP program files sufficient
to prove their case for class certification.
A full-text copy of the District Court's July 14, 2020 Order is
available at https://bit.ly/3jt24x4 from Leagle.com.
MARRIOTT INT'L: Faces Class Action Over GDR Non-Compliance
----------------------------------------------------------
James Mullock, Esq. -- james.mullock@twobirds.com -- of Bird & Bird
LLP, in an article for International Law Office, reports that
Marriott International announced a significant data breach two
years ago following which the UK's data protection regulator, the
ICO, issued a statement in July 2019 citing an intention to fine
Marriott GBP99.2 million for breaches of the General Data
Protection Regulation (GDPR).(1) Whatever comes of that intention,
recent filings in the High Court in London reveal that Marriott now
faces the additional threat of a customer class action which cites
GDPR non-compliance in respect of the same security breach.
The lawsuit was launched by technology consultant Martin Bryant,
represented by international law firm Hausfeld. It has been
reported that Mr Bryant is seeking damages on behalf of affected
data subjects as he wants to serve a notice to data controllers to
treat the data that they hold responsibly.
The ICO's July 2019 statement suggests that hackers had gained
unauthorised access to around 30 million EU citizen's guest records
within the Starwood guest reservation database, Starwood having
been purchased by Marriott in 2016.
What is a class action?
Class actions are an increasing trend in Europe following the
notification of data breaches to regulators and data subjects in
line with the requirements of the GDPR. Such action have been
advertised or commenced in respect of companies ranging from
British Airways to the UK supermarket Morrison's, the latter
following the leaking by a rogue employee of staff records relating
to approximately 100,000 individuals.
There are two class action types that can be initiated; a group
litigation order (CPR 19.11) or a representative action (CPR 19.6).
Marriott is facing a representative action, which allows for
numerous individuals to bring forward a joint claim if they have a
common grievance and seek the same relief on an opt in basis.
Conclusions
If this class action succeeds, Marriott will face multiple payouts
which although individually may be for small amounts cumulatively
could be substantial. It was the size of the maximum fine available
to regulators under the GDPR that caught the eye in the run up to
its go live date of 25 May 2018 (the greater of 4% of worldwide
turnover or €20 million), but the threat of class actions looks
to be of equal motivation when it comes to those in the hotel
sector taking steps to ensure GDPR compliance.
For further information on this topic please contact James Mullock
at Bird & Bird LLP by telephone (+44 20 7415 6000) or email
(james.mullock@twobirds.com). The Bird & Bird LLP website can be
accessed at www.twobirds.com. [GN]
MCDONALD'S: RAFFWU Joins Shine Lawyers to Investigate Class Suit
----------------------------------------------------------------
John Hilton, writing for HRD, reports that the Retail and Fast Food
Workers Union (RAFFWU) has joined with Shine Lawyers to investigate
a potential class action against McDonald's over the company's
failure to provide McDonald's workers with full paid 10-minute
breaks.
Both the McDonald's Australian Enterprise Agreement 2013 and the
Fast Food Industry Award 2010, entitle staff to a paid 10-minute
break for shifts lasting between four and nine hours, as well as
two paid breaks for shifts nine hours or longer, according to Shine
Lawyers.
The potential class action will mean that more than 250,00 current
and former Australian employees could be entitled to a pay-out from
McDonald's.
HRD recently reported on the historic decision by the Federal Court
of Australia who ruled that workers have a legal right to toilet
breaks and to drink water while at work. The RAFFWU brought the
case on behalf of Chiara Staines who worked for Tantex, a
McDonald's franchisee in Queensland.
The Federal Court found Staines was not provided with paid rest
breaks when working shifts four hours or longer. It also found that
the franchisee misrepresented the nature of the breaks Staines was
entitled to.
Shine Lawyers Class Actions Practice Leader Vicky Antzoulatos said
the firm is looking at whether Staines' case is representative of a
systemic failure by McDonald's.
"This breach could be the tip of the iceberg with potentially
hundreds of thousands of staff, both past and present, affected, if
McDonald's and its franchisees have breached the Fair Work Act
across the board," said Antzoulatos.
"Every Australian McDonald's worker has the legal right to a paid
break when working a shift of four hours or more. This is in
addition to workers' rights to access the toilet or to take a drink
of water outside scheduled breaks."
A McDonald's spokesperson told HRD that they have yet to receive
any notification of the proposed class action and are unable to
comment on the veracity of the trade association's claims.
"We continue to work closely with our restaurants to ensure
employees receive all the correct workplace entitlements and pay,"
said the spokesperson.
"We are of course disappointed this did not happen in the instance
of Tantex Holdings Pty Ltd. As was represented to the Court at the
time, the franchisee's breach of the Enterprise Agreement was
unintentional and did not result in any form of underpayment of
wages."
The spokesperson added that the franchisee has already implemented
processes to ensure ongoing compliance.
"We remain committed to working with our employees and franchisees
to ensure any concerns are addressed. A dedicated employee
assistance hotline is available to any McDonald's staff who may
have queries regarding their employment conditions." [GN]
MDL 2472: $21MM in EPP Counsel Fees Recommended in Loestrin 24 Suit
-------------------------------------------------------------------
In the case, IN RE: LOESTRIN 24 FE ANTITRUST LITIGATION. THIS
DOCUMENT RELATES TO: End-Payor Actions, Master File No.
1:13-md-2472-WES-PAS (D. R.I.), Magistrate Judge Patricia A.
Sullivan of the U.S. District Court for the District of Rhode
Island recommended that the Court grants the EPP Classes' Motion
for an Award of Attorneys' Fees, Reimbursement of Litigation
Expenses, and Service Award to the Class Representatives.
The first of the end-payor complaints in these now-consolidated
class action cases was filed in the Eastern District of
Pennsylvania in April 2013. Some of the cases were filed in the
Court and others were transferred to the Court by the Multidistrict
Litigation Panel. The end-payor ("EPP") claims arose under both
the federal antitrust laws, as well as the antitrust, unfair
competition and common laws of various states and other
jurisdictions. They broadly allege that the Defendants -- Warner
Chilcott and Lupin -- illegally entered into reverse payment
settlements of patent litigation and engaged in other illegal
conduct to reduce competition in the market in which a brand name
prescription oral contraceptive, Loestrin 24 Fe (and related
drugs), was sold.
As the attorneys representing the end-payors who paid for the drug,
the EPP Counsel acted on behalf of a putative class comprised of
third-party payors ("TPP") and consumers ("EPP Class"). Based on
Illinois Brick v. Illinois, the EPP Class sought only
declaratory/injunctive relief and attorneys' fees and costs under
the federal antitrust laws; they also sought damages, fees and
costs to the extent permitted by applicable state or other
pertinent law.
EPP Counsel have now resolved all EPP claims. First, by a motion
filed on July 15, 2019, the EPP Counsel asked the Court to approve
a proposed settlement with Lupin and the entire EPP Class, to be
certified for settlement purposes. The Lupin Settlement calls,
inter alia, for a cash payment of $1 million. The motion asked the
Court to delay any determination regarding attorneys' fees, cost
and expenses or service awards until additional settlements have
been achieved, with the allocation to be based directly on the
overcharges to each claimant, thus assuring equitable treatment
among class members, and to delay notice until after the Court
decided the pending motion for class certification. The Lupin
Settlement was preliminarily approved on Oct. 23, 2019.
Soon after the Lupin Settlement, the Court decided the hotly
contested EPP motion for class certification with the issuance of
an Order on Sept. 17, 2019, as amended by an Order issued on Sept.
26, 2019. This Order broke the EPP Class into two subclasses,
certifying the TPP Class, which incurred approximately two-thirds
of the total EPP alleged damages, but denying certification of the
Consumer Class, which incurred the other third. On Oct. 17, 2020,
the Court issued a lengthy opinion explaining the class
certification decision and dismissing some, but not all, of the EPP
state law claims. A significant reason for the denial of
certification of the Consumer Class was the First Circuit's
intervening decision in In re Asacol Antitrust Litig., which had
issued less than three months after the EPP Counsel moved for
certification.
As the Court held, Asacol makes plain in the Circuit what may have
been unclear before: in order to prevail on its motion for class
certification, the class action plaintiff must provide a plan to
identify and remove any uninjured entities and/or persons from the
class in a manner that is both administratively feasible and
protective of the Defendant's Seventh Amendment and due process
rights. Based on Asacol, the Court found that the task proves
impossible with respect to any class containing individual
consumers. The Defendants took an interlocutory appeal from this
decision pursuant to Fed. R. Civ. P. 23(f). The First Circuit
denied review.
With Consumer Class certification denied, all individual claims for
relief brought by the remaining two Consumer Plaintiffs against
Warner Chilcott were resolved when each of them accepted Warner
Chilcott's offer of judgment on Dec. 30, 2019. The accepted offer
covered 100% of their individual alleged damages and included all
costs and attorneys' fees incurred to date attributable to their
individual claims. Id. at 4, 7.
What remained ended with a second class-wide settlement concluded
on the very brink of trial. By motion filed on Feb. 6, 2020, as
amended on March 6, 2020, the certified TPP Class only asked the
Court to approve a proposed settlement with Warner Chilcott, that
calls, inter alia, for a cash payment of $62.5 million for the
benefit of the TPP Class. By Order entered on March 23, 2020, the
Court preliminarily approved, subject to further consideration at
the Fairness Hearing. It also approved the content and method of
serving the notices to be sent to all EPP Class members (both TPP
and Consumers).
On June 8, 2020, in anticipation of the Fairness Hearing, based on
Fed. R. Civ. P. 23(h), the EPP Class Counsel filed a Motion for an
Award of Attorneys' Fees, Reimbursement of Litigation Expenses, and
Service Award to the Class Representatives. The motion asks the
Court to approve the following payments out of the two Settlement
Funds: (1) reimbursement from both Settlement Funds of
$3,743,996.58 for costs and expenses, together with up to $250,000
for settlement distribution expenses for a total of up to
$3,993,996.58; (2) attorneys' fees for EPP Counsel of
$20,833,333.33, to be paid only from the Warner Chilcott Settlement
Fund (for the benefit only of the TPP Class), which amounts to
one-third of that Fund; and (3) service awards for the Class
representatives totaling $100,000, paid from both Settlement Funds,
allocated $10,000 to each of the nine TPP Class representatives
(paid from the Warner Chilcott Settlement Fund) and $5,000 to each
of the two Consumer Class representatives (paid from the Lupin
Settlement Fund).
Mindful of Magistrate Judge Sullivan's work in scrutinizing the
reasonableness of the EPP Counsel's time and expenses on behalf of
the EPP Class on a quarterly basis since the outset of the
litigation pursuant to Case Management Order Number 2 and Case
Management Order Number 2 Supplement (EPP) ("CMO No. 2"), the
Court referred the motion to her for a report and recommendation.
Mindful of the role played by the EPP counsel and the extent of the
risk they accepted at the outset of the matter, the length of time
the case has been pending and the many successes achieved by the
EPP Counsel for the benefit of the EPP Class, including their
ultimate success in procuring the Warner Chilcott Settlement for
the TPP Class, the Magistrate Judge finds that the attorneys' fees
roughly cover the entire lodestar are eminently reasonable.
The requested total of up to $3,993,996.58 in costs and expenses
synchs with the rolling costs and expenses that she reviewed
quarterly in connection with CMO No. 2, now enhanced to cover final
costs, including an estimate of the costs of administering the
Settlement. Seeing no irregularities, the Magistrate Judge
recommends that they be approved for reimbursement from the two
Settlement Funds, allocated as described.
As for the service awards, the Magistrate Judge concludes that the
service awards should be approved for the EPP Class
representatives. The Magistrate Judge further finds that the
requested service awards in the aggregate and individually are
consistent with or lower than what has been awarded in other cases.
Therefore, the Magistrate Judge recommends that the Court approves
payments of $10,000 each to the nine TPP Class representatives from
the Warner Chilcott Settlement Fund and payments of $5,000 each to
the two Consumer Class representatives from the Lupin Settlement
Fund, for a total of $100,000 in service awards.
Finally, to the limited extent that it is pertinent to the motion
referred to her by the District Court, the Magistrate Judge has
considered whether the allocation of attorneys' fees, costs and
expenses and service awards among the Settlement Funds suggests an
issue as to the adequacy of the class representatives based on the
conflict of interest that may arise when unitary Counsel represents
two differently situated classes. Based on her review of the
motion and her conference with the parties on July 13, 2020, the
Magistrate Judge sees nothing in these settlements raising any such
concerns.
The EPP Counsel are requesting no fees from the Lupin Settlement
Fund; their compensation is coming exclusively from the Warner
Chilcott Settlement Fund created for the benefit of the certified
TPP Class. Further, EPP Counsel litigated doggedly in the wake of
Asacol on behalf of both the TPP Class and the Consumer Class. At
bottom, notice was given to the TTP Class members and the Consumer
Class members that accurately advised them of what happened,
including that the Consumer Class members will not receive any
distribution.
To the extent that dissatisfied consumers or members of the TPP
Class believed that there was any taint of conflict or unfairness,
they were free to assert their objections to EPP Counsel's motion
for approval of payment of attorneys' fees, costs and expenses and
service awards. As of the writing of the Report and
Recommendation, no objections have been received.
Based on the foregoing, Magistrate Judge Sullivan recommended that
the Court grants the EPP Classes' Motion for an Award of Attorneys'
Fees, Reimbursement of Litigation Expenses, and Service Award to
the Class Representatives, and approves the following payments out
of the respective Settlement Fund:
(1) Reimbursement from both Settlement Funds of $3,743,996.58
for costs and expenses, together with up to $250,000 for settlement
distribution expenses for a total of up to $3,993,996.58;
(2) Attorneys' fees for EPP Counsel of $20,833,333.33, to be
paid from the Warner Chilcott Settlement Fund; and
(3) Service awards for the Class representatives totaling
$100,000, paid from both Settlement Funds, allocated $10,000 to
each of the nine TPP Class representatives (paid from the Warner
Chilcott Settlement Fund) and $5,000 to each of the two Consumer
Class representatives (paid from the Lupin Settlement Fund).
A full-text copy of the District Court's July 17, 2020 Report &
Recommendation is available at https://bit.ly/2TqpN6O from
Leagle.com.
MDL 2472: $39MM in DPP Counsel Fees Recommended in Loestrin 24 Suit
-------------------------------------------------------------------
In the case, IN RE: LOESTRIN 24 FE ANTITRUST LITIGATION. THIS
DOCUMENT RELATES TO: Direct Purchaser Actions, Master File No.
1:13-md-2472-WES-PAS (D. R.I.), Magistrate Judge Patricia A.
Sullivan of the U.S. District Court for the District of Rhode
Island recommended that the Court grants the DPP Class' Unopposed
Motion for an Award of Attorneys' Fees, Reimbursement of Expenses,
and Service Award for the Class Representative.
The first of the direct purchaser complaints in these
now-consolidated class action cases was filed in the Court in May
2013. The cases arise under the antitrust laws and broadly allege
that the Defendants illegally entered into reverse payment
settlements of patent litigation and engaged in other illegal
conduct to reduce competition in the market in which a brand name
prescription oral contraceptive, Loestrin 24 Fe, was sold. Over
vigorous objection, the Court certified the Direct Purchaser
Plaintiff ("DPP") Class on July 2, 2019.
By motion filed on Jan. 22, 2020, as amended on Feb. 24, 2020, the
DPP Class asked the Court to approve a proposed settlement signed
by DPP Class representative Ahold USA, Inc., that calls, inter
alia, for a cash payment of $120 million for the benefit of the DPP
Class. By Order entered on March 23, 2020, the Court preliminarily
found that this Settlement is sufficiently fair, reasonable, and
adequate, in the best interests of the members of the Direct
Purchaser Class, within a range that responsible and highly
experienced counsel could accept considering all relevant risks and
factors of litigation, and arrived at by arm's-length
negotiations.
The Court also preliminarily found that it is fair and in the best
interest of the Direct Purchaser Class to provide a service award
out of the Settlement Fund not to exceed $100,000 for class
representative Ahold and allow the Co-Lead Counsel to use the
Settlement Funds to pay attorneys' fees as well as costs and
expenses incurred by the counsel in an amount to be determined and
approved by the Court in accordance with the schedule for final
approval of the Settlement.
Pursuant to the schedule set by the Court in anticipation of the
Fairness Hearing, on April 20, 2020, invoking Fed. R. Civ. P.
23(h), the DPP Class filed an Unopposed Motion for an Award of
Attorneys' Fees, Reimbursement of Expenses, and Service Award for
the Class Representative. The motion asks the Court to approve the
following payments out of the Settlement Fund: (1) reimbursement
for costs and expenses of $3,965,558; (2) attorneys' fees for DPP
counsel of $38,678,147, which amounts to one-third of the
Settlement Fund remaining after the payment of costs and expenses,
plus interest on that amount as may accrue prior to distribution;
and (3) a service award for the Class representative Ahold of
$100,000.
Mindful of Magistrate Judge Sullivan's work in scrutinizing the
reasonableness of DPP Counsel's time and expenses on behalf of the
DPP Class on a quarterly basis since the outset of the litigation
pursuant to Case Management Order Number 3 and Case Management
Order Number 3 - Supplement (Direct) (CMO No. 3), the Court
referred the motion to her for a report and recommendation.
Viewed from the perspective of the motion referred to her, the
Magistrate finds that the percentage method of calculating the fee
award should be the primary guide for the Court in considering what
to approve as payment for DPP Counsel. In reliance on Professor
Fitzpatrick's data regarding other class fee awards, she finds that
one-third of the DPP Settlement Fund, less costs and expenses, is
fair, reasonable and appropriate compensation for the work done by
DPP Counsel to create the Fund.
Mindful of the lead role played by DPP Counsel in many of the
issues litigated before the Court, the extent of risk they accepted
at the outset of the matter, the length of time the case has been
pending and the many successes achieved by the DPP Counsel for the
benefit of the DPP Class, including the ultimate success in
procuring the Settlement, despite the size of the Fund (in excess
of $100 million), the Magistrate finds that a multiplier of 1.31%
in the circumstances presented is eminently reasonable.
The requested total of $3,965,558 in costs and expenses synchs with
the rolling costs and expenses that she reviewed quarterly in
connection with CMO No. 3, now enhanced to cover final costs,
including an estimate of the costs of administering the Settlement.
Seeing no irregularities, the Magistrate recommends that they be
approved for reimbursement from the Settlement Fund.
Finally, to encourage entities and individuals to agree to serve as
the named class representative in a complex class action, in light
of the concomitant responsibilities, including, but not limited to,
exposure to potentially substantial expenses in responding to
discovery, monitoring the litigation and participating at trial,
courts may grant a service award. For the DPP Class, Ahold's
service was protracted and included time and expenses in responding
to discovery and in monitoring the litigation on behalf of the DPP
Class, ultimately leading to a successful resolution. While the
service award requested is on the high side for what has been
awarded in other cases, the Magistrate finds that the uncertainty
and delay caused by the need to interpret Actavis, coupled with
Ahold being required to proceed alone after the withdrawal of the
other DPP Class representative, justify the amount sought.
Therefore, she recommends that the Court approves payment to Ahold
from the Settlement Fund of a service award of $100,000.
Based on the foregoing, Magistrate Judge Sullivan recommended that
the Court grants the DPP Class's Unopposed Motion for an Award of
Attorneys' Fees, Reimbursement of Expenses, and Service Award for
the Class Representative, and approves the following payments out
of the Settlement Fund: (i) reimbursement for costs and expenses of
$3,965,558; (ii) attorneys' fees for DPP Counsel of $38,678,147,
which amounts to one-third of the Settlement Fund remaining after
the payment of costs and expenses, plus interest on that amount as
may accrue prior to distribution; and (iii) a service award for the
Class representative Ahold USA, Inc., of $100,000.
Any objection to the Report and Recommendation must be specific and
must be served and filed with the Clerk of the Court within 14 days
of its receipt. Failure to file specific objections in a timely
manner constitutes waiver of the right to review by the district
judge and the right to appeal the Court's decision.
A full-text copy of the District Court's July 17, 2020 Report &
Recommendation is available at https://bit.ly/3jtDRXq from
Leagle.com.
MDL 2752: $117.5MM Deal in Yahoo Security Breach Suit Has Final OK
------------------------------------------------------------------
In the case, IN RE: YAHOO! INC. CUSTOMER DATA SECURITY BREACH
LITIGATION, Case No. 16-MD-02752-LHK (N.D. Cal.), Judge Lucy H. Koh
of the U.S. District Court for the Northern District of California,
San Jose Division, (i) granted the Plaintiffs' motion for final
approval of the proposed class action Settlement, and (ii) granted
in part the Class Counsel's motion for approval of attorneys' fees,
costs, and expenses and incentive awards.
The Court, on July 20, 2019, preliminarily certified, for
settlement purposes only, the following class: All U.S. and Israel
residents and small businesses with Yahoo accounts at any time
during the period of Jan. 1, 2012 through Dec. 31, 2016,
inclusive.
Yahoo has committed to allocate at least $66 million per year to
its information security budget in 2019 to 2022, which is roughly
four times the size of Yahoo's average information security budget
in 2013 to 2016. Yahoo will also employ 200 full-time security
employees through the end of 2022, up from 48 in 2016. It has
pledged to align its information security program with the National
Institute of Standards and Technology Cybersecurity Framework, and
Yahoo has also agreed to undertake annual third-party assessments
to ensure compliance with that framework every year for four years
beginning in 2019. Yahoo has also agreed to strictly limit access
to its User Database, enhance security training for employees,
adopt industry standard anomaly and intrusion detection security
tools, maintain event logs for three years, and engage in proactive
penetration testing.
Moreover, the Settlement provides for meaningful consideration -- a
Settlement Fund of $117.5 million where the Settlement Class size
is approximately 194 million. Additionally, there is no
possibility of reversion to Yahoo.
The matter is before the Court on the Plaintiffs' motion for final
approval of the proposed class action settlement between the
Plaintiffs, and Defendants Yahoo and Aabaco Small Business, LLC.
The Class Counsel has also filed a motion for approval of
attorneys' fees, costs, and expenses and incentive awards. The
Defendants do not oppose either motion.
Judge Koh first addresses whether the Settlement Class meets the
requirements of Rule 23(a), then addresses whether the action meets
the requirements of Rule 23(b)(3). The Judge finds that the
Settlement Class meets the Rule 23(a) requirements of numerosity,
commonality, typicality, and adequacy of representation under the
heightened scrutiny mandated in the settlement-only context. The
Judge also finds that the Settlement Class meets the Rule 23 (b)(3)
of predominance and superiority. Accordingly, as all requirements
of class certification under Rule 23 are met, the Settlement Class
will be certified for the purposes of settlement.
Evaluating a proposed class action settlement under Federal Rule of
Civil Procedure 23(e), the Judge finds that the Settlement is fair,
adequate, and reasonable. First, the Settlement reflects the
strength of the Plaintiffs' case as well as the Defendant's
position. Second, the risks, expense, complexity, and likely
duration of further litigation also support final approval. Third,
as a result of the Settlement, Yahoo has agreed to implement
concrete Business Practice Changes designed to rectify the harms
suffered by Settlement Class Members in the instant case. She
concludes that the $117.5 million amount offered in settlement is a
significant sum and weighs in favor of approval.
The Judge overrules the objections to the Settlement and the
Settlement relief. Among other things, the Judge finds that in
objecting to the size of the Settlement, these Settlement Class
Members fail to adequately take into account the risks and delays
involved in proceeding to class certification, summary judgment,
and/or trial. They ignore that the Settlement provides the class
with a timely, certain, and meaningful recovery, while further
litigation and any subsequent appeal are uncertain, would entail
significant additional costs, and in any event would substantially
delay any recovery achieved. Yahoo has also implemented concrete
Business Practice Changes designed to rectify the harms suffered by
Settlement Class Members in the instant case.
Next, the Judge addresses the Notice Program and objections
thereto. The Judge finds that the Notice Plan has been fully
implemented in compliance with the Court's Order, and complies with
Fed. R. Civ. P. 23(c)(2)(B). The Judge also overrules the
objections. Pursuant to the Settlement Agreement and the Court's
order, the Settlement Administrator initiated an email campaign on
Sept. 3, 2019 that continued until Sept. 30, 2019 in multiple other
ways. The Notice Plan is reasonably calculated to apprise
Settlement Class Members of the nature of the litigation, the scope
of the Settlement Class, the terms of the Settlement Agreement, the
right of Settlement Class Members to object to the Settlement
Agreement or exclude themselves from the Settlement Class and the
process for doing so, and of the Final Approval Hearing.
The Judge also finds that the distribution plan is fair, adequate,
and reasonable, and overrules the objections. The plan is
structured to fit the various injuries that different Settlement
Class Members face. First and foremost, the Settlement requires
Yahoo to undertake numerous Business Practice Changes designed to
increase information security and that directly relate to the
inadequacies alleged by the Plaintiffs. All Settlement Class
Members benefit from this form of relief, irrespective of whether
they ultimately submit a Claim Form.
Turning to the attorneys' fees, the Plaintiffs seek the application
of the percentage-of-recovery method because the novel and complex
nature of this data breach action affords a dearth of established
precedent and other guidance by which to employ the lodestar
method. The Class Counsel request $30 million in attorneys' fees,
the maximum amount allowed by the Settlement Agreement.
The Judge disagrees that percentage-of-recovery represents the best
principal method in the instant case. Instead, having overseen the
case for four years, the Judge finds that justice would be best
served by applying the lodestar method -- i.e., tying the fee
awards for the Class Counsel to the actual hours they reasonably
expended on the litigation and then selecting a multiplier. The
Judge approves the Plaintiffs' total of 40,084.96 hours as
reasonable, which, including the reduced future lodestar,
corresponds to a lodestar total of $19,794,471.90. The application
of the 1.15 multiplier to the $19,794,471.90 lodestar yields an
attorneys' fee award of $22,763,642.70.
In the instant case, the Settlement Agreement authorizes the
Plaintiffs to request up to $2.5 million in costs and expenses.
The Plaintiffs initially requested $1,497,609.54 in litigation
costs and expenses. The total amounted to $1,341,230.41 incurred
in connection with the MDL Case and $156,379.13 incurred in
connection with the JCCP Case. At the Final Fairness Hearing, the
Court requested additional information about expenses paid to
Professor Miller for his work contradicting prior academic work.
The Plaintiffs have since withdrawn their request for reimbursement
of Professor Miller's $20,000 retainer, and they have not billed
any other expenses to the Settlement Class. Hence, their new
request is for $1,477,609.54 in litigation costs and expenses.
Having reviewed the submissions of the Class Counsel, the Judge
finds that their requests for unreimbursed expenses are reasonable.
The Class Counsel submitted declarations and invoices reflecting
the $1,477,609.54 in unreimbursed expenses that they incurred in
the action. In addition to the request for $1,477,609.54 in
unreimbursed expenses, the Class Counsel also requests a cost
reserve of $60,000 for a cybersecurity expert to review Yahoo's
annual cybersecurity reports. The Judge also deems the request
reasonable. Based on the foregoing, the Judge approves
$1,477,609.54 in unreimbursed costs and expenses to the Class
Counsel and a $60,000 cost reserve for retention of a cybersecurity
expert.
Finally, the Plaintiffs request that the Court approves the Service
Awards in the amount of: (1) $7,500 for the eight Settlement Class
Representatives who were both deposed and whose devices were
forensically imaged; (2) $5,000 for the three Settlement Class
Representatives who were only either deposed or whose devices were
forensically imaged; and (3) $2,500 for the five Settlement Class
Representatives who participated in the instant case without being
deposed or subjected to forensic imaging.
The Judge finds the requested Service Awards reasonable. The
requested $2,500 and $5,000 payments for eight of the Settlement
Class Representatives is set at or below the Ninth Circuit's
benchmark award for representative plaintiffs. For the remaining
eight Settlement Class Representatives, the larger $7,500 figure is
justified by the record. Further, the requested Service Awards
($87,500 in total) represent less than .1% of the Settlement Fund.
Based on the foregoing, Judge Koh:
(a) granted the Plaintiffs' motion for final approval of the
proposed class action Settlement, and
(b) granted in part the Class Counsel's motion for approval
of attorneys' fees, costs, and expenses and incentive
awards as follows: (i) $22,763,642.70 in attorneys' fees
to the Class Counsel; (ii) $1,477,609.54 in unreimbursed
costs and expenses to the Class Counsel; (iii) $60,000
cost reserve for retention of a cybersecurity expert;
(iv) $87,500 in Service Awards ($2,500 to Jana Brabcova,
Reid Bracken, Hilary Gamache, Jared Pastor, and Brendan
Quinn; $5,000 to Brian Neff, John Bell, and Michael
Bouras; and $7,500 to Andrew Morensen, Mali Granot,
Paul Dugas, Yaniv Rivlin, Matthew Ridolfo, Deana Ridolfo,
Kimberly Heines, and Hashmatullah Essar).
A full-text copy of the District Court's July 21, 2020 Amended
Order is available at https://bit.ly/3dZfsb6 from Leagle.com.
MEDLEY OPPORTUNITY: 3rd Cir. Upholds Arbitration Denial in Williams
-------------------------------------------------------------------
In the cases, CHRISTINA WILLIAMS; MICHAEL STERMEL, On Behalf of
Themselves and All Others Similarly Situated v. MEDLEY OPPORTUNITY
FUND II, LP; MARK CURRY; BRIAN MCGOWAN; VINCENT NEY; OTHER JOHN DOE
PERSONS OR ENTITIES; RED STONE INC, As Successor In Interest to
MacFarlane Group, Inc. Red Stone, Inc. Appellant in CHRISTINA
WILLIAMS; MICHAEL STERMEL, On Behalf of Themselves and All Others
Similarly Situated v. MEDLEY OPPORTUNITY FUND II, LP; MARK CURRY;
BRIAN MCGOWAN; VINCENT NEY; OTHER JOHN DOE PERSONS OR ENTITIES; RED
STONE, INC., As Successor In Interest to MacFarlane Group, Inc.
Mark Curry, Brian McGowan, Vincent Ney, Appellants in, Case Nos.
19-2058, 19-2082 (3d Cir.), a three-judge panel of the U.S. Court
of Appeals for the Third Circuit affirmed the District Court's
order denying the Defendants' motions to compel arbitration.
Plaintiffs Williams and Stermel obtained loans from AWL, Inc., an
online entity owned by the Otoe-Missouria Tribe of Indians. The
Plaintiffs assert that AWL charged unlawfully high interest rates
and sued AWL's holding company, Red Stone, and three members of
AWL's board of directors, Curry, Ney, and McGowan for violations of
federal and Pennsylvania law.
The Plaintiffs entered into payday loan agreements with AWL. To
obtain loans from AWL, the Plaintiffs had to sign a loan agreement
that set forth the interest rates, payment terms, and other
provisions. The loan agreement states that it is between the
borrower/debtor, and AWL, an arm of the Tribe, as lender. It
includes the disclosure to the borrower that the loan is made
within the tribe's jurisdiction, and is subject and governed by
tribal law, and not not of the law of the state. The loan
agreement also makes disclosures pursuant to the Truth in Lending
Act.
Following these disclosures, the loan agreement contains 25
numbered sections. One section is titled "Waiver of Jury Trial and
Agreement to Arbitrate. The tribal court may confirm an
arbitration award "only if" the court "determines that the award is
supported by substantial evidence and is not based on legal error
under Tribal Law." The arbitration agreement makes numerous other
references to tribal law.
The Plaintiffs, on behalf of themselves and a putative class, sued
the Defendants in federal court, alleging that AWL's lending
practices violated the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), and various Pennsylvania consumer
protection laws. The Defendants moved to compel arbitration.
The District Court denied the motion to compel, reasoning that: (1)
the arbitration agreement was unenforceable because the arbitrator
is permitted only to consider tribal law and, therefore, the
arbitrator could not consider any of the Plaintiffs' claims as they
are based on federal and state law; and (2) a 'choice of
arbitrator' provision permitting the parties to select the AAA or
JAMS does not provide an available arbitral forum because it only
permitted the arbitrator to apply policies and procedures that do
not contradict the agreement or 'Tribal law.'
The Defendants assert that the District Court erred in refusing to
compel arbitration because (1) the arbitration agreement specifies
that the arbitrator will decide issues of enforceability and (2)
the arbitration agreement's applicable law subsection is not an
impermissible prospective waiver of statutory rights.
First, the Panel identifies the law that would apply in arbitration
under the agreement, and thus what claims the Plaintiffs could
pursue in arbitration. Because the parties have not provided the
Court with any such tribal law nor have they identified any such
federal law as is applicable under the Indian Commerce Clause
regarding contract interpretation, the Panel applies the forum's
contract interpretation principles.
Next, because the arbitration agreement mandates that only tribal
law applies in arbitration, federal law does not. As a result, the
arbitration agreement effects as an impermissible prospective
waiver of statutory rights. While parties may choose what law
governs their contract or how their arbitration is conducted, a
party may not underhandedly convert a choice of law clause into a
choice of no law clause. By limiting the claims available to
borrowers to tribal-law claims, the arbitration agreement here
requires a borrower to prospectively waive claims based on any
other law. Like the Third Circuit's sister circuits, the Panel
concludes that the requirement violates public policy and renders
the arbitration agreement unenforceable.
The Defendants' arguments to the contrary are unpersuasive. First,
the arbitration agreement is clear that only tribal-law claims are
available, and that pronouncement is enough to show that
federal-law claims are unavailable. Second, the arbitration
agreement contains a forbidden prospective waiver of statutory
rights. Finally, even if the Panel interpreted the arbitration
agreement to allow borrowers to assert claims in arbitration
arising under such federal law as is applicable under the Indian
Commerce Clause, the agreement still effects a prospective waiver.
Furthermore, the text of the loan agreement makes clear that the
phrase "such federal law as is applicable under the Indian Commerce
Clause" does not capture all federal law or even laws of general
applicability.
Finally, the arbitration agreement repeatedly states that only
tribal law claims can be brought in arbitration. Were the Panel to
remove the invocations of tribal law in the arbitration agreement,
it would impermissibly rewrite the contract. Because tribal law
provisions are integral to the entire arbitration agreement, they
cannot be severed. As a result, the entire arbitration agreement,
including the delegation clause, is unenforceable.
Based on the foregoing, Judge Patty Shwartz, writing for the Panel,
affirmed the District Court's order denying the Defendants' motions
to compel arbitration.
A full-text copy of the Third Circuit's July 14, 2020 Opinion is
available at https://bit.ly/2Hn1O65 from Leagle.com.
Arpit K. Garg, Tamara S. Grimm -- TGrimm@ohaganlaw.com -- Molly M.
Jennings, Jonathan E. Paikin -- jonathan.paikin@wilmerhale.com --
Thomas L. Strickland, Daniel Volchok, [ARGUED] Seth P. Waxman,
WilmerHale, Washington, DC.
Charles K. Seyfarth -- cseyfarth@ohaganmeyer.com -- O'Hagan Meyer,
Richmond, VA, Counsel for Appellant Red Stone, Inc.
Robert M. Cary, Sarah M. Harris, [ARGUED] Michael J. Mestitz,
Christopher Yeager, Williams & Connolly, Washington, DC, Counsel
for Appellant Mark Curry.
David F. Herman -- dherman@armstrongteasdale.com -- Richard L.
Scheff -- rlscheff@armstrongteasdale.com -- Armstrong Teasdale,
Philadelphia, PA, Counsel for Appellants Brian McGowan and Vincent
Ney.
Michael J. Quirk -- mquirk@eblawllc.com -- Motley Rice,
Philadelphia, PA.
Matthew W.H. Wessler -- matt@guptawessler.com -- [ARGUED] Gupta
Wessler, Washington, DC, Counsel for Appellees Christina Williams
and Michael Stermel, On Behalf of Themselves and All Others
Similarly Situated.
Stephen F. Raiola -- sraiola@cov.com -- Covington & Burling,
Washington, DC, Counsel for Amicus Curiae Online Lenders Alliance
in Support of Appellants.
Patrick O. Daugherty -- pod@vnf.com -- Van Ness Feldman,
Washington, DC, Counsel for Amicus Curiae Native American Financial
Services Association in Support of Appellants.
Anthony M. Sabino, Mineola, NY, Counsel for Amicus Curiae Anthony
Michael Sabino in Support of Appellant Red Stone, Inc.
Mark C. Stephenson -- mstephenson@thewardlaw.com -- Ward Law,
Philadelphia, PA, Counsel for Amici Curiae American Legislative
Exchange Council, The Center for Individual Freedom, and the
American Consumer Institute in Support of Appellant Red Stone,
Inc.
Jeffrey R. White -- jeffrey.white@justice.org -- American
Association for Justice, Washington, DC, Counsel for Amicus Curiae
American Association for Justice in Support of Appellees.
MGM RESORTS: Judge Accepts $800MM Vegas Shooting Settlement
-----------------------------------------------------------
Josh Stewart, writing for Inkedin, reports that a Nevada judge
accepted a $800 million settlement in a class action lawsuit
brought by victims against casino operator MGM Resorts
International on the eve of the third anniversary of the deadliest
shooting in modern US history.
Clark County District Court Judge Linda Bell mentioned
"near-unanimous participation" in the settlement between claimants
in her brief order.
On October 1, 2017, from his suite on the 32nd floor of the
Mandalay Bay Hotel and Casino owned by MGM in Las Vegas, a lone
gunman rained bullets on a crowd of 22,000 concertgoers attending
the Route 91 Harvest music festival.
The gunman, later identified as Stephen Paddock, a former Nevada
accountant and avid video poker player, killed 58 people and
wounded more than 850 at an open-air concert, then shot himself
before his suite was reached by police.
A specific motive for Paddock's assault was never determined by
local police and FBI investigators.
Under the deal, MGM and the insurers will pay the families and
relatives of the attack families $800 million. The casino operator
will pay $49 million, while the remaining $751 million will be paid
by its insurance firms. No liability for the incident was
recognised by MGM, which owns both Mandalay Bay and the concert
venue at which Paddock fired gunshots.
In early September, Robert Eglet, the attorney charged with
handling the resolution of hundreds of cases brought against MGM,
submitted resolution papers to a court in Clark County. In October
2019, the casino operator and the victims of the shooting announced
that they had reached a settlement.
The September 225-page civil lawsuit provides a list of more than
4,400 victims and families of victims seeking compensation and
punitive damages from the casino operator for the incident.
Plaintiffs, coming from almost every U.S. state, at least eight
Canadian provinces, the United Kingdom, Ireland, and Iran, have
accused MGM of negligence, wrongful death, and guilt for the
massacre of October 1, 2017.
In the days leading up to the attack, the casino and hospitality
company was accused of failing to enforce adequate safety measures
during the music festival and of stopping Paddock from creating an
arsenal of nearly two dozen assault-style guns.
Mr. Eglet claimed that two retired judges would decide the sums
that would be disbursed to the victims and that he hoped that the
first payments would be made before the end of the year. Millions
of dollars might be earned from the most seriously and permanently
wounded, the lawyer also noted.
The specific amounts will be measured on the basis of a variety of
variables, including age, number of dependents, type of injuries
sustained, past and potential medical care, and ability to
function. A minimum of $5,000 will be offered to each person who
has lodged a claim for unseen injuries and has not pursued medical
treatment or therapy. [GN]
MOHAWK COUNCIL: Faces Breach of Fiduciary Duty Class Action
-----------------------------------------------------------
Indian Time was informed of a class action suit against Mohawk
Council of Akwesasne. Roger Thompson, Kawehno:ke is named as the
plaintiff. The class action suit was filed in the Registries of the
Federal Courts on Wednesday, September 23, 2020.
According to the Statement of Claim, "The Plaintiff claims on
behalf of himself and the other members of the Proposed Class… a
declaration that the Defendant was, and continues to be
systematically negligent in the oversight, operation, training,
supervision, control, maintenance and support of their obligation,
under section 20 of the Indian Act, R.S.C., 1985, c. 1-5 regarding
the allotment of land".
The Statement of Claim continued alleging MCA "breached their
fiduciary duty to the Plaintiff and Proposed Class by failing to
provide a means to resolve property disputes on land held for the
benefits of the Akwesasne Indians."
Damages being sought are in the amount of $500 million. The
plaintiff is also seeking 'punitive and exemplary damages' against
the defendant in the amount of $250 million.
The Statement made is in regard to a landlocked Lot 108 on
Kawehno:ke and has been in dispute since "on or about 1988."
The Plaintiff proposes this action be tried in Ottawa, Ontario.
[GN]
MOUNTAIRE FARMS: Court Denies Interlocutory Appeal in Cuppels Suit
------------------------------------------------------------------
In the appellate case, STATE OF DELAWARE, DEPARTMENT OF NATURAL
RESOURCES & ENVIRONMENTAL CONTROL, Third Party Petitioner Below,
Appellant, v. GARY and ANNA-MARIE CUPPELS, Plaintiffs Below,
Appellee, Case No. 212, 2020 (Del.), the Supreme Court of Delaware
refused to accept an interlocutory appeal from a Superior Court
opinion and order, dated April 14, 2020, denying the motion by
Appellant-Third Party Petitioner State of Delaware Department of
Natural Resources & Environmental Control ("DNREC") to quash
subpoenas served by the Plaintiffs/Appellees, Gary and Anna-Marie
Cuppels.
The case is one of several cases arising from Defendant-Appellee
Mountaire Farms of Delaware, Inc.'s disposal of waste at its
poultry processing plant in Millsboro. In the class-action
lawsuit, the Cuppels allege that they suffered property damage and
personal injuries as a result of Mountaire Delaware's improper and
unlawful waste disposal. The Cuppels have asserted tort claims
against Mountaire Delaware, Mountaire Corp., and Mountaire Farms
Inc.
In the course of the instant litigation, the Cuppels served a
subpoena upon DNREC for all documents from July 1, 2017 to the
present, in the possession or control of five DNREC employees, that
related to the Millsboro plant's wastewater, sludge facilities,
groundwater, and nearby wells. The Cuppels also served subpoenas
for depositions of the five DNREC employees named in the document
subpoena.
DNREC filed motions to quash the subpoenas or in the alternative
for a protective order. In the motions, DNREC argued that: (i) it
had already produced many documents from before July 1, 2017 in
response to requests that the Cuppels made under the Delaware
Freedom of Information Act; (ii) the subpoenas sought investigatory
files and information protected from disclosure by Section
10002(l)(3) and D.R.E. 508(b); (iii) it should not be compelled to
produce information protected by the attorney-client privilege,
work product doctrine; and (iv) the subpoena was unduly burdensome
to DNREC. The Cuppels opposed the motions.
The Superior Court held a hearing on the motions to quash on April
8, 2020. At the conclusion of the hearing, the Superior Court
denied the motions. On April 14, 2020, the Superior Court issued
an opinion further explaining its reasoning for the denial of the
motions.
On June 29, 2020,9 DNREC filed an application for certification of
an interlocutory appeal. Mountaire supported the application. The
Cuppels opposed the application. On July 14, 2020, the Superior
Court denied the application for certification. In denying the
application for certification, the Superior Court questioned
whether a non-party may pursue an interlocutory appeal, but
proceeded to consider the Rule 42 criteria. After considering the
criteria, it concluded that interlocutory review was not in the
interests of justice because it would result in substantial and
serious delay for the parties to the litigation.
The Applications for interlocutory review are addressed to the
sound discretion of the Court. Even assuming a non-party may
pursue an interlocutory appeal, Judge Traynor has concluded that
the application for interlocutory review does not meet the strict
standards for certification under Supreme Court Rule 42(b).
Exceptional circumstances that would merit interlocutory review of
the Superior Court's interlocutory opinion do not exist in the
case, and the potential benefits of interlocutory review do not
outweigh the inefficiency, disruption, and probable costs caused by
an interlocutory appeal. Therefore, the Supreme Court refused the
interlocutory appeal.
A full-text copy of the Delaware Supreme Court's July 28, 2020
Order is available at https://bit.ly/35rLqZW from Leagle.com.
MUSHIE & CO: Website not Accessible to Blind People, Romero Says
----------------------------------------------------------------
JOSUE ROMERO, on behalf of himself and all others similarly
situated, v. MUSHIE & CO, LLC, Case No. 1:20-cv-08144-PGG
(S.D.N.Y., Oct. 1, 2020), alleges that the Defendant failed to
design, construct, maintain, and operate its website to be fully
accessible to and independently usable by Plaintiff and other blind
or visually-impaired people.
The Defendant's denial of full and equal access to its website, and
therefore denial of its goods and services offered thereby, is a
violation of Plaintiff's rights under the Americans with
Disabilities Act ("ADA"). Because Defendant's website,
www.mushie.com, is not equally accessible to blind and
visually-impaired consumers, it
violates the ADA.
The Plaintiff seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet this definition have limited vision.
Others have no vision.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind's 2015 report, approximately 400,000
visually impaired persons live in the State of New York.
The Defendant is a baby product manufacturer and retail company,
and owns and operates the website, www.mushie.com, offering
features which should allow all consumers to access the goods and
services and which the Defendant ensures the delivery of such goods
throughout the United States, including New York State. The
Defendant operates and distributes its products throughout the
United States, including New York.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Telephone: (929) 575-4175
Facsimile: (929) 575-4195
E-mail: Joseph@cml.legal
NANO-X IMAGING: Kehoe Law Reminds of Nov. 16 Motion Deadline
------------------------------------------------------------
Kehoe Law Firm, P.C. is investigating potential securities claims
on behalf of investors of Nano-X Imaging Ltd. ("Nano-X" or the
"Company") (NASDAQ: NNOX) to determine whether the Company engaged
in securities fraud or other unlawful business practices.
Nano-X investors who purchased, or otherwise acquired, the
Company's common stock between August 21, 2020 and September 15,
2020, both dates inclusive (the "Class Period"), and suffered
losses greater than $100,000 are encouraged to complete Kehoe Law
Firm's Securities Class Action Questionnaire or contact Michael
Yarnoff, Esq., (215) 792-6676, Ext. 804, myarnoff@ktmc.com,
securities@kehoelawfirm.com, to discuss the securities
investigation or potential legal claims.
IF YOU WISH TO SERVE AS LEAD PLAINTIFF, YOU MUST MOVE THE COURT NO
LATER THAN NOVEMBER 16, 2020. To be a member of the class action,
you do not need to take any action at this time; you may retain
counsel of your choice; or you can take no action and remain an
absent member of the class action. No class has yet been certified
in the above action. Until a class is certified, you are not
represented by counsel, unless you retain an attorney. An
investor's ability to share in any potential future recovery is not
dependent upon serving as lead plaintiff.
On September 16, 2020, a class action lawsuit was filed against
Nano-X. According to the class action complaint, the Nano-X
Defendants made materially false and/or misleading statements,
because they misrepresented and failed to disclose the following
adverse facts pertaining to the Company's business, operational and
financial results, which were known to Defendants or recklessly
disregarded by them.
The Nano-X Defendants, according to the complaint, made false
and/or misleading statements and/or failed to disclose that: (1)
Nano-X's commercial agreements and its customers were fabricated;
(2) Nano-X's statements regarding its "novel" Nanox System were
misleading, as the Company never provided data comparing its images
with images from competitors' machines; (3) Nano-X's submission to
the FDA admitted the Nanox System was not original; and (4) as a
result, the Nano-X Defendants' public statements were materially
false and/or misleading at all relevant times.
Kehoe Law Firm, P.C., with offices in New York and Philadelphia, is
a multidisciplinary, plaintiff–side law firm dedicated to
protecting investors from securities fraud, breaches of fiduciary
duties, and corporate misconduct. Combined, the partners at Kehoe
Law Firm have served as Lead Counsel or Co-Lead Counsel in cases
that have recovered more than $10 billion on behalf of
institutional and individual investors.
This press release may constitute attorney advertising. [GN]
NEW DIRECTIONS: Utilization Manager Class Conditionally Certified
-----------------------------------------------------------------
In the class action lawsuit captioned as MARIA KROTT, individually
and on behalf of all others similarly situated, v. NEW DIRECTIONS
BEHAVIORAL HEALTH, LLC, Case No. 4:19-cv-00915-DGK (W.D. Mo.), the
Hon. Judge Greg Kays entered an order:
1. conditionally certifying a class of:
"all individuals employed by Defendant in non-management
job titles containing the term "Utilization Manager" in
the last three years who were paid on a salary basis and
classified as exempt from overtime compensation";
2. directing the Defendant to produce to the Plaintiff the
names, job titles, dates of employment, last known
addresses, and email addresses of Potential Plaintiffs
within seven days;
3. authorizing the Plaintiff to send notice and consent forms
by mail and email to potential class members, but reminder
notice is prohibited. Each potential plaintiff shall have
sixty-three days from the date notice is mailed to opt-in
to the litigation.; and
4. directing the parties to file a joint proposed scheduling
order within 14 days of this Order.
The Defendant argues that the Plaintiff seeks to certify an
"ill-defined, improper collective" because its UMs span across the
country and have varying hours and conditions based on health plan
client, region, and supervisor. The declaration filed by
Defendant's Vice President of Clinical Services, however, admits
that UMs share the same primary duty of making medical-necessity
determinations using specific guidelines to approve insurance
claims the Defendant also does not contest the allegations provided
in the four declarations of UMs in Florida and Georgia that all
UMs, regardless of location, were classified as exempt. Nor does it
contest the allegation that Ums worked more than 40 hours per week
on occasion and were not paid any overtime. The Defendant instead
contests that all UMs worked over forty hours per week. But
"whether they actually worked over 40 hours goes to the merits and
will be addressed at a later stage of the litigation," the Court
said.
Moreover, the Plaintiff's notice explicitly states: "If you fit the
above definition and you worked more than 40 hours in any workweek
during your employment, you are eligible for participation in this
lawsuit". This makes it clear that those who did not work more
than 4 hours per week will not be entitled to compensation,
according to the Court. Thus, the record before the Court shows
that the UMs are similarly situated because they performed similar
job duties using the same predetermined guidelines; were subject to
the same exempt and overtime classification policies regardless of
location; and were uncompensated for any overtime work they
performed. Thus, Plaintiff has satisfied her burden through
affidavits, supported by admissible evidence, which show the
putative members were together "victims of a single decision,
policy, or plan." The Plaintiff has met her burden of showing
conditional certification is proper, the Court said.
This putative collective-action case arises out of the Plaintiff
Maria Krott's allegations that the Defendant New Directions
Behavioral Health, LLC violated the Fair Labor Standards Act by
failing to pay overtime compensation due her and other similarly
situated employees.
The Plaintiff formerly worked as a UM for Defendant, a managed
behavioral health organization that provides benefit determinations
for healthcare plans. The Defendant works with insurers to admit or
deny claims for treatment by insurers' members. The Defendant's UMs
assist in making this determination based on whether requisite
criteria are present in health plan Participants' clinical
information. The Plaintiff alleges that all UMs employed by
Defendant over the last three years had the same essential job
duties.
New Directions provides health care services.
A copy of the Court's Order conditionally certifying class is
available from PacerMonitor.com at https://bit.ly/32EsI0T at no
extra charge.[CC]
NEW YORK: Court Narrows Claims in Knight Prisoners Suit
-------------------------------------------------------
In the case, HUGH KNIGHT, WAYNE STEWART, and SHANNON DICKINSON, on
behalf of themselves and all others similarly situated.,
Plaintiffs, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS, et al.,
Defendants, Case No. 18-CV-7172 (KMK) (S.D. N.Y.), Judge Kenneth M.
Karas of the U.S. District Court for the Southern District of New
York granted in part and denied in part the Defendants' Motion To
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Plaintiffs Knight, Stewart, and Dickinson are inmates in the
custody of the New York State Department of Corrections and
Community Supervision ("DOCCS") who require intermittent
catheterization.
The Plaintiffs bring the Action, pursuant to 42 U.S.C. Section
1983, on behalf of themselves and all others similarly situated,
against DOCCS and several DOCCS medical officials: current Chief
Medical Officer ("CMO") John Morley; former Chief Medical Officer
Carl Koenigsmann; Shawangunk Correctional Facility Health Services
Director ("FHSD") Chung Lee; Nurse Practitioner ("NP") Albert
Acrish; and numerous John and Jane Doe medical professionals and
administrators.
Knight, Stewart, and Dickinson are all paraplegics and largely
wheelchair-bound, who do not have control over their bladder
function and thus require "intermittent catherization," that is,
the insertion and removal of a catheter several times a day to
empty the bladder. The Plaintiffs require a "steady supply" of
catheters -- at least 4 to 6 catheters per day -- and must also be
able to clean their hands and body parts in order to avoid
bacterial transfer that can develop into urinary tract infections.
Until recently, the Plaintiffs did not receive an adequate number
of single-use catheters per day nor adequate supplies to
effectively clean their genital area and hands before insertion.
As a result of this failure, they developed repeated infections and
suffered severe pain, and in one case, permanent kidney damage.
The Plaintiffs concede, however, that as of July 2019, the
Defendants have started providing the three representative
Plaintiffs with an appropriate number of daily sterile, single-use
catheters. They also make specific allegations with respect to the
treatment and provision of catheters for each of the three named
Plaintiffs.
The Plaintiffs bring two Eighth Amendment claims pursuant to 42
U.S.C. Section 1983. The first cause of action alleges that the
Defendants exhibited deliberate indifference to their health by
adopting and implementing a policy which restricts the number of
sterile, single-use catheters to the bare minimum and demands
patients rewash catheters, and by allowing the deprivation of an
adequate number of sterile catheters despite knowing that patients
suffer from UTIs and hospitalizations as a result of infections
from unsterile catheterizations. The second cause of action, which
is not readily distinguishable from the first, alleges that the
Defendants denied the Plaintiffs adequate medical care by failing
to provide five to seven sterile, single-use catheters. Both
claims are brought against DOCCS, Morley (in his official
capacity), Koenigsmann (in his individual capacity), Lee (in his
individual capacity), Acrish (in his individual capacity), and
various John and Jane Doe DOCCS medical officials (in their
individual capacities).
The initial Complaint was filed on Aug. 10, 2018. The First
Amended Complaint was filed on Nov. 21, 2018. The Court held a
conference on Dec. 17, 2018, at which it permitted the Plaintiffs
to amend a second time and indicated that any future amendment
would be subject to dismissal with prejudice.
On July 23, 2019, the Plaintiffs filed the operative complaint, the
Third Amended Complaint. On Sept. 19, 2019, they filed a letter
seeking leave to file a fourth amended complaint and requesting
that the Court dismisses without prejudice their prayers for
injunctive and declaratory relief and official capacity claims
against DOCCS and Morley. The same day, the Defendants consented
to the Plaintiff's filing of a fourth amended complaint.
On Sept. 25, 2019, the Plaintiffs filed their purported fourth
amended complaint. On Oct. 7, 2019, the Court denied the
Plaintiffs leave to proceed with the fourth amended complaint, and
the Parties agreed to proceed based on the Third Amended
Complaint.
On Nov. 4, 2019, the Plaintiffs filed a letter seeking leave for
the intervention of a third-party (and potential class member),
David Kornell, and alleging that Kornell had been told by an
unidentified individual that he would receive no more than three
catheters per day as it was 'the new policy.' Three days later,
the Court denied the request, explaining that the Plaintiffs'
counsel is free to file other lawsuits on behalf of other inmates
who claim that DOCCS' catheter policy denies them their
constitutional rights.
On Nov. 22, 2019, the Defendants filed the instant Motion To
Dismiss and accompanying papers. On Dec. 19, 2019, the Plaintiffs
filed their Opposition. Four days later, the Plaintiffs filed a
clarification and a signed version of the Kornell Declaration.
The Defendants argue that DOCCS is shielded by sovereign immunity;
that claims for prospective injunctive and declaratory relief fail
because the Plaintiffs do not allege any ongoing federal violation;
that the request for class certification fails because the named
Plaintiffs (who are currently receiving sufficient catheters and
supplies) cannot adequately represent the putative class members;
that all allegations fail to satisfy either the objective or
subjective elements of the deliberate indifference test; and the
TAC fails to adequately allege the personal involvement of Morley
or Koenigsmann in prescribing (or failing to properly prescribe)
catheters to the Plaintiffs.
Judge Karas granted in part and denied in part the Defendants'
Motion. All claims against DOCCS (including all official capacity
claims) are dismissed, as are all claims against Koenigsmann.
Because the Plaintiffs have already received several opportunities
to amend, dismissal of these claims is with prejudice. The
Plaintiffs may continue to pursue their claims against the
remaining Defendants (Lee, Acrish, and any Doe Defendants) in their
individual capacities.
Among other things, the Plaintiffs pursue claims against
Koenigsmann, Lee, Acrish, and various John and Jane Doe DOCCS
medical officials in their individual capacities. The Judge finds
that the Eighth Amendment forbids deliberate indifference to
serious medical needs of prisoners. To state a deliberate
indifference claim, an inmate must plausibly allege (1) that he
suffered a sufficiently serious constitutional deprivation, and (2)
that the defendants acted with deliberate indifference. The first
element is "objective" and requires the Plaintiff show that the
alleged deprivation of adequate medical care is sufficiently
serious. The second element, which goes to mental state, requires
the Plaintiff show that prison officials were subjectively reckless
in their denial of medical care.
Under these standards, the Plaintiffs have adequately pleaded
Eighth Amendment violations. First, the Plaintiffs have alleged
that they received insufficient catheters over an extended period
and were thus forced to reuse single-use catheters. Second, they
have adequately alleged that the Defendants were aware of the
harmfulness associated with their failure to provide adequate
catheters. In sum, the Plaintiffs have adequately pleaded that the
Defendants were subjectively aware of their medical needs and the
toll taken by depriving them of adequate medical care. A
fact-finder could infer from such conduct that the Defendants
consciousy chose an easier and less efficacious treatment plan that
would likely cause pain and other medical problems. The Judge
therefore declines to dismiss the individual capacity claims
against Lee, Acrish, and the Doe Defendants on this basis.
A full-text copy of the District Court's July 10, 2020 Opinion &
Order is available at https://bit.ly/2ITXThf from Leagle.com.
Amy Jane Agnew, Esq. -- aj@ajagnew.com -- Law Office of Amy Jane
Agnew, P.C., New York, NY, Counsel for Plaintiffs.
Andrew Stuart Amer, Esq., New York State Department of Law, New
York, NY, Counsel for Defendants.
NEW YORK: NY Transit Face Class Action From Violating Riders
------------------------------------------------------------
Brian Flood, writing for Bloomberg Law, reports that the New York
City Transit Authority must face a class action challenging its
practices for securing default judgments against individuals
accused of violating transit regulations, a federal court in
Manhattan said.
NYCTA operates the city's subway and bus systems and the Staten
Island Railway. A rider accused of violating transit rules can
either pay a fine or contest the charge. If the alleged violator
fails to pay the fine or deny the violation, the authority may deem
the lack of response as an admission of liability and impose a
default judgment with fines and additional penalties. [GN]
NEXTEP FUNDING: Class Settlement in Danger Suit Gets Prelim. OK
---------------------------------------------------------------
In the case, LuANN DANGER, on behalf of herself and others
similarly situated, Plaintiff, v. NEXTEP FUNDING, LLC and MONTEREY
FINANCIAL SERVICES, LLC, Defendants, Civil Action No.
0:18-cv-00567-SRN-LIB (D. Minn.), Judge Susan Richard Nelson of the
U.S. District Court for the District of Minnesota granted the
Plaintiff's Unopposed Motion for Preliminary Approval of Class
Action Settlement.
The Court has been advised that the parties to the action, Class
Representative and Nextep, through their respective counsel, have
agreed, subject to Court approval following notice to the Class
Members and a hearing, to settle the Lawsuit upon the terms and
conditions set forth in their Class Action Settlement Agreement and
Release, which has been filed with the Court.
On preliminary examination, the Court notes that the proposed
settlement appears fair, reasonable, and adequate.
Accordingly, the Court rules that for purposes of settlement only
and pursuant to Rule 23(b)(3) of the Federal Rules of Civil
Procedure, the Lawsuit is preliminarily certified as a class action
on behalf of the following classes of the Plaintiffs with respect
to the claims asserted in the Lawsuit:
a. Nationwide Class: All persons (a) with an address in the
United States (b) who signed a Consumer Pet Lease Agreement with
Nextep Holdings, LLC, formerly known as Nextep Funding, LLC, (c)
between Feb. 26, 2016 and Jan. 9, 2019 (d) for personal, family, or
household purposes.
b. Minnesota Class: All persons (a) with an address in Minnesota
(b) who signed a Consumer Pet Lease Agreement with Nextep Holdings,
LLC, formerly known as Nextep Funding, LLC, (c) between Feb. 26,
2016 and Jan. 9, 2019.
The Defendant represents that there are 2,506 potential Nationwide
Class Members and 28 Minnesota Class Members, including the
Plaintiff.
The Court appointed (i) LuAnn Danger as the Class Representative of
the Nationwide Class and the Minnesota Class; (ii) Jesse S. Johnson
and James L. Davidson of Greenwald Davidson Radbil PLLC as the
Class Counsel; and (iii) First Class, Inc. as the class
administrator.
The form and substance of the Direct Mail Notices of Class Action
Settlement is approved. In accordance with the Settlement
Agreement, the class administrator will mail the notices to the
Class Members as expeditiously as possible, but in no event later
than 21 days after the Court's entry of the order, i.e., no later
than Aug. 7, 2020. The class administrator will confirm, and if
necessary, update the addresses for the Class Members through
standard methodology that the class administrator currently uses to
update addresses.
Any Nationwide Class Member other than Minnesota Class Members who
wishes to receive a pro-rata portion of the Nationwide Settlement
Fund must send a valid, timely claim form to First Class, Inc. with
a postmark date no later than 90 days after the Court's entry of
this order, i.e., no later than Oct. 15, 2020. Per the Settlement
Agreement, the Minnesota Class Members need not submit any claim
form to participate in the Minnesota Settlement Fund.
Any Class Member who desires to be excluded from either class must
send a written request for exclusion to First Class, Inc. with a
postmark date no later than 90 days after the Court's entry of the
order, i.e., no later than Oct. 15, 2020.
Upon final approval from the Court, and upon the expiration of any
available appeal period (or, if an appeal is filed, after the
conclusion of such appeal, unless it results in reversal of final
approval from the Court), the class administrator will mail a
settlement check to all the Minnesota Class Members and to each
Nationwide Class Member who submits a valid, timely claim form.
Each Minnesota Class Member will receive a pro-rata portion of the
$13,700 Minnesota Settlement Fund, after deducting related costs
and expenses of class notice and settlement administration.
Additionally, each participating Nationwide Settlement Class Member
will receive a pro-rata portion of the $33,500 Nationwide
Settlement Fund, after deducting related costs and expenses of
class notice and settlement administration. In addition to her
pro-rata share of the Minnesota Settlement Fund, and separate and
apart from that fund, the Class Representative will be paid a total
of $3,000 in recognition of her service to the Class Members.
The Court will conduct the Fairness Hearing on Dec. 7, 2020, at
9:30 a.m. Submissions by the Parties in support of the settlement,
including memoranda in support of final approval of the proposed
settlement, and responses to any objections, must be filed with the
Court no later than 28 days prior to the Final Fairness Hearing,
i.e., no later than Nov. 9, 2020. Opposition briefs to any of the
foregoing must be filed no later than 14 days prior to the Final
Fairness Hearing, i.e., no later than Nov. 23, 2020. Reply
memoranda in support of the foregoing must be filed with the Court
no later than seven days prior to the Final Fairness Hearing, i.e.,
no later than Nov. 30, 2020.
A full-text copy of the District Court's July 17, 2020 Order is
available at https://bit.ly/2IWPrOi from Leagle.com.
Mark L. Vavreck -- mvavreck@cgmvlaw.com -- Gonko & Vavreck, PLLC,
401 N. 3rd St., Ste. 600, Minneapolis, MN 55401; James L. Davidson
and Jesse S. Johnson -- jjohnson@gdrlawfirm.com -- Greenwald
Davidson Radbil, PLLC, 7601 N. Federal Hwy., Ste. A-230, Boca
Raton, FL 33487, for Plaintiff.
Eldon J. Spencer -- espencer@losgs.com -- and Thomas C. Atmore --
tatmore@losgs.com -- Leonard, O'Brien, Spencer, Gale & Sayre, Ltd.,
100 S. 5th St., Ste. 2500, Minneapolis, MN 55402; Bruce N. Menkes,
George V. Desh, and Steven L. Baron, Mandell Menkes LLC, 1 N.
Franklin St., Ste. 3600, Chicago, IL 60606.
NINTENDO: CSK&D Requests Videos of Joy-Con Drift Experience
-----------------------------------------------------------
Souhardya Biswas, writing for Essentially Sports, reports that
according to a VGC report, Nintendo claims that the Joy-Con drift
issue "isn't a real problem or hasn't caused anyone inconvenience."
Chimicles Schwartz Kriner & Donaldson-Smith LLP (CSK&D), the US law
firm that filed the class-action lawsuit against Nintendo, gave the
statement.
The complaint was filed in the United States District Court for the
Western District of Washington. It alleges that the joysticks on
Switch controllers are defective, causing users to experience drift
issues. In March, the court approved Nintendo's move to compel the
case to arbitration, while declining to dismiss the case.
CSK&D is currently pursuing the case through the arbitration
process. As reported by VGC, the law firm is now responding to
Switch consumers who had contacted it regarding the Joy-Con drift.
The LLP entity is asking the users to submit short videos
describing their experience with the drifting controllers. It will
aid the law firm to demonstrate the issues and their impact towards
its prosecution of the case.
"We are working on putting together a montage of video clips from
Nintendo Switch owners such as yourself as a way to give voice to
the joy-con drift issues you've experienced. This will be helpful
to us in responding to Nintendo's arguments about how this isn't a
real problem or hasn't caused anyone any inconvenience."
CSK&D will put together a montage of video clips from Switch owners
and intends to share it with Nintendo's attorneys and the company's
representatives. The law firm had requested concerned users to
email them the videos by October 16. [GN]
NORTHEASTERN UNIVERSITY: Court Junks Gallo Suit for Tuition Refund
------------------------------------------------------------------
Doug Lederman, writing for Inside Higher Ed, reports that within
weeks after colleges around the country closed their campuses and
shifted to remote learning as COVID-19 descended last spring,
students and lawyers sprang into action, filing lawsuits seeking
reimbursements of tuition and fees on top of the housing and dining
refunds that many institutions granted. They argued that the
virtual learning they were getting was inadequate given what they
had paid, even as college and university leaders said their
institutions had done their best to pivot in a crisis and allow
students to continue their educations.
On Oct. 1, a federal judge -- in what appears to be the first of
last spring's cases to be adjudicated -- largely dismissed a
lawsuit in which a group of Northeastern University students sought
refunds of their tuition and fees after the university closed its
campus and shifted to remote learning last spring.
In his ruling, Judge Richard G. Stearns granted Northeastern's
motion to dismiss the class action on all of the students' demands
except for the possible refund of the campus recreation fee, which
he agreed could proceed.
The two named plaintiffs, Thom Gallo and Manny Chong, undergraduate
and graduate students, respectively, had paid Northeastern between
$23,400 and $26,100 in tuition, plus several hundred dollars in
fees for the spring term. Chong petitioned the university for a
refund based on the "pedagogical inferiority of online
instruction," and when that was rejected, he and Gallo filed a
class action on behalf of similarly situated students, saying that
the university either breached its contract with them or engaged in
unjust enrichment.
The judge, citing the annual financial responsibility agreement
that students sign with Northeastern, concluded that the university
did not commit to providing in-person instruction, invalidating the
breach-of-contract claim. Stearns dismissed the claims for refunded
student fees because, he said, students pay those fees "to
'support' certain facilities during terms for which those students
are enrolled in classes, not to gain access to any on-campus
facility or resource."
Stearns permitted the recreation fee claim to proceed because that
fee gives students the option to attend home sporting events and to
use fitness facilities that were unavailable to them when the
campus closed. [GN]
NPAS SOLUTIONS: 11th Cir. Rejects $6,000 Plaintiff Award in Johnson
-------------------------------------------------------------------
Lindsay Demaree, Esq. -- demareel@ballardspahr.com -- of Ballard
Spahr LLP, in an article for JDSupra, reports that in a split
decision, the Eleventh Circuit rejected a $6,000 incentive award
for the named plaintiff in a TCPA class action. According to the
majority in Johnson v. NPAS Solutions, LLC, U.S. Supreme Court
precedent prohibits such awards -- a holding that is bound to
discourage class actions in the Eleventh Circuit. The decision is
the most recent in a series of Eleventh Circuit's rulings against
TCPA plaintiffs.
The named plaintiff in Johnson alleged, on behalf of himself and a
putative class, that defendant NPAS Solutions, LLC violated the
TCPA by using an automatic telephone dialing system to call cell
phone numbers that had been reassigned to a non-consenting
consumer. The case quickly settled, and the plaintiff moved to
certify a settlement class. The district court granted preliminary
approval, appointing the plaintiff as the class representative and
his attorneys as class counsel. It also set a deadline for class
members to object to the settlement that was nearly three weeks
before the parties had to submit their petitions for fees and costs
and their motion for final approval of the settlement.
One class member objected to the settlement, taking issue with,
among other things, the proposed $6,000 incentive award for the
named plaintiff (which the objector had learned about through the
settlement notice). The parties thereafter moved for final approval
of the settlement, requested attorney's fees and costs, and opposed
the objection, arguing that the settlement was fair. After holding
a final fairness hearing, the district court sided with the parties
and issued an order setting forth its fairness findings in a
single, boilerplate sentence and awarding the named plaintiff a
$6,000 incentive payment. (Remaining class members who submitted
claims stood to receive only $79.) The order also stated, without
explanation, that the objection "is OVERRULED."
The objector appealed. Agreeing with the objector, the Eleventh
Circuit held that the Supreme Court's decisions in Trustees v.
Greenough, 105 U.S. 527 (1882) and Central Railroad & Banking Co.
v. Pettus, 113 U.S. 116 (1885) prohibit incentive awards. In
Greenough (and reiterated a few years later in Pettus), the Supreme
Court refused the plaintiff's request for an award to compensate
for his "personal services and private expenses" incurred in
successfully bringing a claim on behalf of himself and other
bondholders. According to the Supreme Court, such an award "would
present too great of a temptation to parties to intermeddle in the
management of valuable property or funds in which they have only
the interest of creditors." The Johnson majority concluded that an
incentive award was "roughly analogous" to a payment for personal
services barred in Greenough and, if anything, presented an even
greater risk of intermeddling to the extent the award provides a
"bounty" for bringing suit.
Notably, the Eleventh Circuit appears to be the only circuit to
have applied Greenough and Pettus to bar incentive awards. While
the Eleventh Circuit acknowledged that a contrary Second Circuit
opinion had disregarded Greenough and Pettus as factually
inapposite, it also explained that challenges to incentive awards
are "few and far between" because the challenge must come from
objectors, who have minimal incentives to assert a challenge. As a
result, there are few opportunities for courts to consider the
legal basis for an incentive award which allows them to proliferate
in class action settlements "as a product of inertia and
inattention, not adherence to the law."
The majority also rejected the dissenting judge's view that Holmes
v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983) required the
court to consider simply whether the incentive award is fair. The
majority countered that Holmes did not address a salary, bounty, or
incentive award for a class representative; rather, it involved
whether disparities in payments to the named plaintiffs were
justified by the value of their unique, individual claims.
In addition to rejecting incentive awards, the majority held that
the district court failed to follow Rule 23(h) when it required
objections to be filed before the class representative and counsel
were required to move for final settlement approval and fees. It
also concluded that the district court failed to adequately explain
its rulings, including its denial of the objection to the
settlement.
The Johnson decision is the latest in a series of Eleventh Circuit
rulings against TCPA plaintiffs, including Medley v. DISH Network,
LLC (holding TCPA does not permit unilateral revocation of
contractual consent), Glasser v. Hilton Grand Vacations Co., LLC
(narrowly interpreting the definition of an automated telephone
dialing system), and Salcedo v. Hanna (holding plaintiff lacked
standing where he received only a single text message). Johnson's
holding, however, extends beyond the TCPA to limit incentives for
class representatives generally. This far-reaching consequence,
along with the opposing views of the Second Circuit and dissent,
could lead to a rehearing en banc by the Eleventh Circuit or
Supreme Court review. [GN]
NUSRET NEW YORK: $300,000 Settlement in Fteja Suit Gets Final OK
----------------------------------------------------------------
In the case, MUSTAFA FTEJA, on behalf of himself, FLSA Collective
Plaintiffs and the Class, Plaintiff, v. NUSRET NEW YORK LLC d/b/a
Nusret Steakhouse and NUSRET GÖKÇE, a/k/a "The Salt Bae," jointly
and severally, Defendants, Case No. 19-cv-00429 (KHP) (S.D. N.Y.),
Magistrate Judge Katherine H. Parker of the U.S. District Court for
the Southern District of New York granted (i) the Plaintiff's
Motion for Certification of the Settlement Class, Final Approval of
the Class Action Settlement and Approval of the FLSA Settlement;
(ii) the Plaintiff's Unopposed Motion For Approval Of Class
Representative's Service Award; and (3) the Plaintiff's Unopposed
Motion For Approval Of Attorneys' Fees And Reimbursement Of
Expenses.
The Parties entered into a final settlement totaling $300,000 on
Feb. 3, 2020 in a Settlement Agreement and Release, and the
Plaintiff filed for preliminary approval of the settlement on March
2, 2020, which, for settlement purposes only, the Defendants did
not oppose.
On March 5, 2020, the Court entered an Order preliminarily
approving the settlement on behalf of the Rule 23 class and FLSA
collective set forth therein, conditionally certifying the
settlement class, appointing Lee Litigation Group, PLLC as the
Class Counsel, appointing Rust Consulting, Inc. as the Settlement
Administrator, and authorizing notice to all the Class Members.
On July 1, 2020, the Plaintiff filed a Motion for Certification of
the Settlement Class, Final Approval of the Class Action Settlement
and Approval of the FLSA Settlement, which for settlement purposes
only the Defendants did not oppose. That same day, the Plaintiff
also filed Motions for Approval of Attorneys' Fees and
Reimbursement of Expenses and for a Service Award. The motions
were unopposed and Defendants did not object to the requests for
attorneys' fees, costs, or service payments.
Having considered the Motion for Final Approval, the Motion for
Attorneys' Fees and Reimbursement of Expenses, the Motion for
Service Award, and the supporting declarations, the oral argument
presented at the July 16, 2020 fairness hearing, and the complete
record in the matter, and for the reasons set forth therein and
stated on the record at the July 16, 2020 fairness hearing,
Magistrate Judge Parker, pursuant to Rule 23, confirmed as final
the certification of the Class for settlement purposes.
Pursuant to 29 Section U.S.C. 216(b), the FLSA Settlement is
approved and the collective class under the FLSA is certified.
The Magistrate Judge confirms as final the appointment of (i)
Plaintiff Mustafa Fteja as the representative of the Class, both
under Federal Rule of Civil Procedure 23 and 29 U.S.C. Section
216(b); and (ii) C.K. Lee of Lee Litigation Group PLLC as the Class
Counsel for the Class pursuant to Federal Rule of Civil Procedure
23 and for individuals who opted into the Litigation pursuant to 29
U.S.C. Section 216(b).
Pursuant to Rule 23(e), the Magistrate Judge granted the Motion for
Final Approval and finally approved the settlement as set forth
therein. The Judge granted the Plaintiff's Motion for Attorneys'
Fees and awarded the Class Counsel $100,000. She also awarded the
Class Counsel reimbursement of their litigation expenses in the
amount of $3,933.90. The attorneys' fees and the amount in
reimbursement of litigation costs and expenses will be paid from
the Settlement Fund.
The Magistrate Judge approved the service award for the named
plaintiff Mustafa Fteja in the amount of $15,000, and the payment
of the Settlement Administrator's fees in the amount of $15,000.
These amount will be paid out of the Settlement Fund, according to
the terms of the Parties' Settlement Agreement and Release.
The action is thus fully and finally dismissed in its entirety and
with prejudice.
A full-text copy of the District Court's July 17, 2020 Order is
available at https://bit.ly/3kyPoGs from Leagle.com.
ODONATE THERAPEUTICS: Levi & Korsinsky Reminds of Oct. 26 Deadline
------------------------------------------------------------------
Levi & Korsinsky, LLP on Oct. 1 disclosed that class action lawsuit
has commenced on behalf of Odonate Therapeutics Inc. Shareholders
interested in serving as lead plaintiff have until the deadlines
listed to petition the court. Further details about the cases can
be found at the links provided. There is no cost or obligation to
you.
Odonate Therapeutics, Inc. (NASDAQ:ODT)
ODT Lawsuit on behalf of: investors who purchased December 7, 2017
- April 21, 2020
Lead Plaintiff Deadline: November 16, 2020
TO LEARN MORE, VISIT:
https://www.zlk.com/pslra-1/odonate-therapeutics-inc-information-request-form?prid=9734&wire=1
According to the filed complaint, during the class period, Odonate
Therapeutics, Inc. made materially false and/or misleading
statements and/or failed to disclose that: (i) the Company's orally
administered chemotherapy agent, tesetaxel, was not as safe or
well-tolerated as the Company had led investors to believe; (ii)
consequently, tesetaxel's commercial viability as a cancer
treatment was overstated; and (iii) as a result, the Company's
public statements were materially false and misleading at all
relevant times.
You have until the lead plaintiff deadlines to request that the
court appoint you as lead plaintiff. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
OMEGA SPORTS: Website not Accessible to Blind, Angeles Says
-----------------------------------------------------------
JENISA ANGELES, on behalf of himself and all others similarly
situated, v. OMEGA SPORTS, INCORPORATED, Case No. 1:20-cv-08145-MKV
(S.D.N.Y., Oct. 1, 2020), alleges that the Defendant failed to
design, construct, maintain, and operate its website to be fully
accessible to and independently usable by Plaintiff and other blind
or visually-impaired people.
The Defendant's denial of full and equal access to its website, and
therefore denial of its goods and services offered thereby, is a
violation of Plaintiff's rights under the Americans with
Disabilities Act ("ADA"). Because Defendant's website,
www.omegasports.com, is not equally accessible to blind and
visually-impaired consumers, it violates the ADA.
The Plaintiff seeks a permanent injunction to cause a change in
Defendant's corporate policies, practices, and procedures so that
Defendant's website will become and remain accessible to blind and
visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet this definition have limited vision.
Others have no vision.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind's 2015 report, approximately 400,000
visually impaired persons live in the State of New York.
The Defendant is a sports gear and clothing company that owns and
operates www.omegasports.com, offering features which should allow
all consumers to access the goods and services and which Defendant
ensures the delivery of such goods throughout the United States,
including New York State.[BN]
The Plaintiff is represented by:
David P. Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
E-mail: dforce@steinsakslegal.com
ONESOURCE EHS: Powell Seeks Conditional Class Certification
-----------------------------------------------------------
In the class action lawsuit captioned as WILLIAM POWELL,
Individually and Others Similarly Situated, v. ONESOURCE EHS,
L.L.C. Case No. 3:20-cv-00161-SDD-RLB (M.D. La.), the Plaintiff
asks the Court for an order granting conditional class
certification, judicial notice, and for disclosure of the names and
addresses of potential "opt-in" plaintiffs.
OneSource is a comprehensive consulting company specializing in
Environmental, Health, and Safety solutions.
A copy of Powell's motion for conditional certification is
available from PacerMonitor.com at https://bit.ly/2Rx0yi2 at no
extra charge.[CC]
Attorneys for the Plaintiff and the putative class members are:
Carl A. Fitz, Esq.
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: adunlap@mybackwages.com
mjosephson@mybackwages.com
cfitz@mybackwages.com
- and -
Philip Bohrer, Esq.
Scott E. Brady, Esq.
BOHRER BRADY, LLC
8712 Jefferson Highway, Suite B
Baton Rouge, LA 70809
Telephone: (225) 925-5297
Facsimile: (225) 231-7000
E-mail: phil@bohrerbrady.com
scott@bohrerbrady.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
ORMAT TECHNOLOGIES: Fairness Hearing in Class Suit Set for Jan. 11
------------------------------------------------------------------
Pomerantz LLP on Oct. 1 disclosed that the United States District
Court for the District of Nevada has approved the following
announcement of a proposed class action settlement that would
benefit purchasers of Ormat Technologies, Inc. Common Stock (NYSE:
ORA) (Tel Aviv: ORA):
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
MAC COSTAS, Individually and on behalf of all others similarly
situated,
Plaintiffs,
v.
ORMAT TECHNOLOGIES, INC., ISAAC ANGEL, and DORON BLACHAR,
Defendants.
Case No. 3:18-cv-00271-RCJ-WGC
Hon. Robert C. Jones
PUBLICATION NOTICE OF PENDENCY AND PROPOSED CLASS ACTION SETTLEMENT
AND MOTION FOR ATTORNEYS' FEES AND FAIRNESS HEARING
To: All Persons Who Purchased Ormat Technologies, Inc.
Securities between August 3, 2017 and May 15, 2018, inclusive
YOU ARE HERBY NOTIFIED, pursuant to an Order of the United States
District Court for the District of Nevada, that a hearing will be
held on January 11, 2021 at 10:00 A.M. PT before the Honorable
Robert C. Jones, United States District Judge of the District of
Nevada, in Courtroom 3, Bruce R. Thompson Courthouse, 400 S.
Virginia St., Reno, NV 89501, to determine: (1) whether the
proposed Settlement for $3,750,000 in cash should be approved by
the Court as fair, reasonable, and adequate; (2) whether the
proposed plan to distribute the settlement proceeds is fair and
reasonable; (3) whether the application for an award of attorneys'
fees of up to one-third plus interest of the Settlement Amount and
reimbursement of expenses of not more than $115,000 should be
approved; (4) whether the application for a service award to Lead
Plaintiff of up to $20,000 to compensate it for its time and
contributions to the case should be approved; and (5) whether the
Action should be dismissed with prejudice against the Defendants,
as set forth in the Stipulation and Agreement of Settlement and
Release dated June 8, 2020 (the "Stipulation") filed with the
Court.
If you have not received the detailed Notice of Pendency and
Proposed Settlement of Class Action (the "Notice") and Proof of
Claim and Release Form, you may obtain them free of charge at
www.strategicclaims.net or by contacting the Claims Administrator
at:
Ormat Securities Litigation Claims Administrator
c/o Strategic Claims Services
P.O. Box 230
600 N. Jackson St., Ste. 205
Media, PA 19063
Tel.: 866-274-4004
Fax: 610-565-7985
info@strategicclaims.net
If you purchased Ormat Technologies, Inc. ("Ormat") securities
between August 3, 2017 and May 15, 2018, inclusive, your rights may
be affected by this Settlement. As further described in the Notice,
you will be bound by any Judgment entered in the Action, whether or
not you make a claim, unless you request exclusion from the
Settlement Class, in the manner set forth in the Notice, no later
than December 11, 2020.
If you are a member of the Settlement Class and wish to share in
the Settlement proceeds, you must submit a Proof of Claim and
Release Form electronically or postmarked no later than December
11, 2020 to the Claims Administrator, establishing that you are
entitled to recovery. Any objection to the Settlement, Plan of
Allocation, or Lead Counsel's request for an award of attorneys'
fees and service Award to Lead Plaintiff must be in the manner and
form explained in the Notice and received no later than 5 P.M. PT
on January 4, 2021, by each of the following:
CLERK OF COURT:
Clerk of the Court
United States District Court
District of Nevada
400 S. Virginia St.
Reno, NV 89501
LEAD COUNSEL:
Jeremy A. Lieberman
Murielle Steven Walsh
Eric D. Gottlieb
POMERANTZ LLP
600 Third Avenue, Floor 20
New York, NY 10016
DEFENDANTS' COUNSEL:
Douglas P. Baumstein
Dominique Forrest
WHITE & CASE LLP
1221 Avenue of the Americas
New York, NY 10020
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. If you have any questions, you may call or write to
Lead Counsel at:
Jeremy A. Lieberman
Murielle Steven Walsh
Eric D. Gottlieb
POMERANTZ LLP
600 Third Avenue, Floor 20
New York, NY 10016
Tel: (212) 661-1100
Fax: (917) 463-1044
jalieberman@pomlaw.com
mjsteven@pomlaw.com
egottlieb@pomlaw.com
DATED: September 3, 2020
BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF NEVADA [GN]
ORRSTOWN FINANCIAL: Court Certifies Interlocutory Appeal in SEPTA
-----------------------------------------------------------------
In the case, SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY,
Plaintiff, v. ORRSTOWN FINANCIAL SERVICES, INC., et al.,
Defendants, Case No. 1:12-cv-00993 (M.D. Pa.), Judge Yvette Kane of
the U.S. District Court for the Middle District of Pennsylvania
granted the Motions for Certification of Interlocutory Appeal filed
by the Orrstown Defendants and Defendants Sandler O'Neill &
Partners L.P. and Janney Montgomery Scott ("Underwriter
Defendants") with Defendant Smith Elliott Kearns & Co., LLC
("SEK"), both seeking certification of the Court's Feb. 14, 2020
Order granting Plaintiff Southeastern Pennsylvania Transportation
Authority ("SEPTA")'s Motion for Leave to File Third Amended
Complaint.
The case is a purported class action alleging securities violations
in connection with Defendant Orrstown's early 2010 public offering
of approximately 1.4 million shares of Orrstown common stock, which
raised almost $40 million. Following a series of revelations
regarding its financial condition, Orrstown reported significant
losses for the fourth quarter of 2011, and on March 15, 2012, filed
its 2011 Annual Report, which disclosed that it had a "material
weakness" in its internal controls and had failed to implement a
structured process with appropriate controls to ensure that updated
loan ratings were incorporated timely into the calculation of the
Allowance for Loan Losses.
On May 12, 2012, the Southeastern Pennsylvania Transportation
Authority or SEPTA on behalf of two classes filed the purported
class action pursuant to Federal Rule of Civil Procedure 23(a) and
(b)(3) against Orrstown, Orrstown Bank, and several additional
individual Defendants associated with Orrstown. On March 4, 2013,
the Plaintiff filed a First Amended Complaint ("FAC"), adding as
Defendants Orrstown's auditor, SEK, and the Underwriter Defendants
(the underwriters involved in the Offering), and alleging that the
Defendants issued materially untrue and/or misleading statements
and omissions in violation of the Securities Act of 1933 and the
Exchange Act of 1934.
After the Court's dismissal of SEPTA's Securities and Exchange Act
claims against all the Defendants for failure to state a claim upon
which relief may be granted, SEPTA, with permission of the Court,
filed a Second Amended Complaint ("SAC") against the same
Defendants, which focused exclusively on alleged materially false
and/or misleading statements they made in the offering documents
and through the class period pertaining to the effectiveness of the
Orrstown Defendants' internal controls over underwriting of loans,
risk management, financial reporting and compliance with banking
regulations. All the Defendants subsequently moved to dismiss the
SAC.
On Dec. 7, 2016, the Court granted SEK and the Underwriter
Defendants' motions to dismiss and granted in part and denied in
part the Orrstown Defendants' motion to dismiss. Specifically, as
to the Securities Act claims asserted in the SAC (counts one
through four), the Court granted the motions to dismiss all such
claims upon the Court's finding that the SAC failed to allege facts
supporting a reasonable inference that the representations and
certifications in Orrstown's 2009 Annual Report on Form 10-K as to
the effectiveness of its "internal controls over financial
reporting" were materially false and/or misleading when made. As
to the Exchange Act claims asserted in the SAC, the Court granted
the motions as to the claims asserted against SEK (count six) and
all individual Defendants, with the exception of claims asserted
against individual Defendants Quinn, Everly, and Embly. The Court
denied the motions as to the SAC's Exchange Act claims against the
Orrstown entity Defendants.
Accordingly, after the issuance of the Court's Dec. 7, 2016 Order,
the remaining Exchange Act claims involved alleged misstatements
about the effectiveness of Orrstown's internal controls over
financial reporting in its 2010 and 2011 Annual Reports on Form
10-K and its quarterly reports on Form 10-Q (beginning with the
second quarter of 2010 through the end of 2011). The parties
subsequently initiated discovery on the remaining Exchange Act
claims, a process that has been delayed to a significant extent by
the potentially privileged status of a number of the documents to
which SEPTA sought access and the regulatory review attendant to
that potentially privileged status.
Thereafter, SEPTA filed a Motion for Leave to File Third Amended
Complaint, seeking leave to file a Third Amended Complaint ("TAC")
reasserting the Securities and Exchange Act claims previously
dismissed by the Court's Dec. 7, 2016 Order against several
individual Defendants associated with Orrstown, as well as
Orrstown's auditor, SEK, and the Underwriter Defendants, based upon
information gleaned during the discovery process in 2018, which
SEPTA maintained demonstrated that the material weaknesses in
internal controls over financial reporting ("ICFR") at the heart of
this case existed at least as early as 2008, and that certain of
the Defendants, with the complicity of SEK, deliberately
manipulated Orrstown's financial statements in Orrstown's 2009 10-K
in advance of the 2010 public offering in order to conceal material
weaknesses in ICFR and loan losses inherent in Orrstown's
commercial lending portfolio.
After extensive briefing, on Feb. 14, 2020, the Court issued a
Memorandum and Order granting SEPTA's motion for leave to file the
TAC. In its Memorandum, the Court rejected the Defendants'
argument that the Securities and Exchange Act's respective statutes
of repose barred SEPTA's reassertion of claims and therefore
rendered its effort to amend the operative complaint futile, and in
doing so, noted that no party had cited to it any controlling
authority on point. However, the Court was persuaded that because
its Dec. 7, 2016 Order adjudicated fewer than all the claims or
rights and liabilities of fewer than all the parties and does not
end the action as to any of the claims or parties, and because
through the TAC SEPTA seeks to reassert the same claims against the
same parties originally brought by way of the FAC, filed within the
applicable statute of repose and limitations period, no statute of
repose or limitation is calculated by reference to the potential
filing of the TAC.
On Feb. 24, 2020, the Orrstown Defendants and the Underwriter
Defendants (along with Defendant SEK) filed the instant motions to
certify the Court's Feb. 14, 2020 Order for interlocutory appeal.
Specifically, the moving Defendants seek certification of the
question as to whether the Securities and Exchange Act's respective
statutes of repose preclude SEPTA from reasserting the previously
dismissed Securities and Exchange Act claims against the Orrstown
Defendants, the Underwriter Defendants, and SEK by way of the TAC.
They filed briefs in support of their motions on March 9, 2020,
and, pursuant to stipulation, SEPTA filed a consolidated brief in
opposition to both motions on April 20, 2020. The moving
Defendants filed reply briefs on May 11, 2020.
Upon consideration of the briefs of the parties and the relevant
authorities, Judge Kane finds that the moving Defendants have
demonstrated that the Section 1292(b) criteria are met, and that
certification of the Court's Feb. 14, 2020 Order for interlocutory
appeal is warranted.
As an initial matter, the Judge is persuaded that the issue at bar
-- whether the operation of the statutes of repose in the
Securities and Exchange Acts renders SEPTA's effort to reassert
such claims previously-dismissed by way of a non-final order in the
multi-party, multi-claim action futile -- is a controlling question
of law because if the Third Circuit Court of Appeals were to
disagree with this Court's resolution of that issue, SEPTA's
re-asserted Securities and Exchange Act claims against the
Underwriter Defendants, SEK, and several individual Orrstown
Defendants would be precluded. Further, the question is one that
is certainly serious to the litigation, both practically and
legally.
The Judge is unpersuaded by SEPTA's argument that the fact that the
Court's Feb. 14, 2020 Order involved the exercise of its discretion
in granting a motion for leave to amend means that it does not
involve a controlling question of law. While she acknowledges the
authority cited by SEPTA to the effect that decisions committed
entirely to the district court's discretion rarely present a
controlling questions of law' and are generally not appropriate for
certification under Section 1292(b), she finds that the case is a
case where the Court's exercise of its discretion is appropriately
viewed as involving a "controlling question of law."
If the Court had reached a different conclusion regarding the
statute of repose-based futility arguments proffered by the
Defendants in opposition to SEPTA's motion for leave to amend, it
would have denied SEPTA's motion; accordingly, the Judge finds that
the Feb. 14, 2020 Order granting SEPTA permission to file a TAC
involves a controlling question of law appropriate for
certification for interlocutory appeal.
Secondly, the Judge finds that there exists a "substantial ground
for difference of opinion" as to the question whether SEPTA's
previously-dismissed Securities and Exchange Act claims in the
multi-party, multi-claim action remain subject to amendment
pursuant to the provisions of Federal Rule of Civil Procedure
54(b), or whether the previous dismissal of those claims ended the
"action" with regard to those claims, such that any future
amendment of those claims would be subject to the relevant statute
of repose. As she noted, substantial grounds for difference of
opinion exist where there is genuine doubt or conflicting precedent
as to the correct legal standard" to be applied. That difference
of opinion must involve one or more difficult and pivotal questions
of law not settled by controlling authority.
In the absence of authority supporting the Defendants' position
that the Court's Dec. 7, 2016 order ended the "action" with regard
to the claims dismissed by it such that the relevant statutes of
repose would operate to bar the reassertion of those claims in
SEPTA's TAC, the Court in its Feb. 14, 2020 Memorandum ultimately
relied on the plain meaning of Federal Rule of Civil Procedure
54(b) and the non-final nature of its Dec. 7, 2016 order to permit
SEPTA leave to amend to reassert previously-dismissed claims.
However, the Judge acknowledged the Defendants' argument regarding
the substantive right provided by the relevant statutes of repose
and the limitations of the Rules Enabling Act, which provides that
the Federal Rules of Civil Procedure will not abridge, enlarge or
modify any substantive right. Accordingly, in light of the
foregoing, the Judge finds that, in the absence of any controlling
authority, there may exist substantial grounds for difference of
opinion among reasonable jurists as to this complex issue of
statutory interpretation.
Finally, as to the third criteria for certification, the Judge
easily concludes that the moving Defendants have met their burden
to demonstrate that the prompt resolution of the legal issue may
materially advance the ultimate termination of the litigation. As
she stated, the criteria is met where an immediate appeal may
eliminate the need for trial or simplify a trial by the elimination
of complex issues, and where it may result in more expeditious and
less costly discovery. Certainly, if the Third Circuit would reach
a different conclusion on the statute of repose issue, such a
decision would eliminate the Securities Act claims from the case,
thereby eliminating the need for a trial on those claims,
simplifying the case by foreclosing complex issues unique to those
claims, and enabling the parties to complete discovery more quickly
and at less expense.
The Judge is also unpersuaded by SEPTA's contention that an
interlocutory appeal would result in substantial delay of the
long-pending litigation because the applicable statute provides
that an application for an appeal thereunder will not stay
proceedings in the district court unless the district judge or the
Court of Appeals or a judge thereof will so order. The Moving
Defendants have not requested a stay from the Court; moreover, they
have explicitly represented that they will continue to brief their
pending motions to dismiss in concert with their pursuit of an
interlocutory appeal. Accordingly, the Judge finds that an
immediate appeal of the Court's Feb. 14, 2020 Order may materially
advance the termination of the litigation.
Therefore, having determined that the Moving Defendants have met
their burden to demonstrate that the Section 1292(b) criteria are
satisfied, Judge Kane, in the exercise of her discretion, finds the
action to be that "exceptional case" justifying certification of
its Feb. 14, 2020 Order for interlocutory appeal. The Judge
granted the Defendants' Motions for Certification of Interlocutory
Appeal, and amended the Court's Feb. 14, 2020 Order accordingly.
A full-text copy of the Court's July 17, 2020 Memorandum is
available at https://bit.ly/3ktH8Yk from Leagle.com.
PACIFIC POWER: Faces Class Action Over Santiam Canyon Wildfires
---------------------------------------------------------------
Zach Urness, writing for Salem Statesman Journal, reports that a
class action lawsuit filed against Pacific Power alleges the
utility's failure to shut down its power lines amid a historically
dangerous storm caused wildfires that devastated the Santiam Canyon
on Labor Day evening.
Jeanyne James and Robin Colbert, who owned a home and property
burned by the fires in Lyons, filed the lawsuit individually and on
behalf of a class of similarly situated people in Multnomah County
Circuit Court.
"Despite being warned of extremely critical fire conditions,
Defendants left their powerlines energized," the lawsuit says.
"Defendants' energized powerlines ignited massive, deadly and
destructive fires that raced down the canyons, igniting and
destroying homes, businesses and schools. These fires burned over
hundreds of thousands of acres, destroyed thousands of structures,
killed people and upended countless lives."
The Beachie Creek Fire destroyed 1,323 structures, including 486
homes, according to firefighting agencies.
James and Colbert are seeking "equitable relief" at this time, the
lawsuit says.
"They've lost everything," Stoll Berne partner Yoona Park said.
And these enormous losses might have been prevented, attorneys
said.
"Many of these fires were not ignited by lightning or careless
campers," said Daniel Mensher, a partner at Keller Rohrback.
"Instead, these fires were whipped to their overwhelming size by a
series of ignitions caused by these defendants' power lines."
In an email, Pacific Power said it doesn't comment on pending
litigation.
Three Pacific Northwest law firms -- Keller Rohrback L.L.P., Stoll
Berne, and Nick Kahl, LLC -- filed the complaint on Sept. 30. A
file-stamped copy from the court has not yet been received.
Anyone who suffered losses as a result of the fires could be
included in the class seeking relief, the firms said.
Park said they've heard from several other Santiam Canyon residents
impacted by the fire and expect to add other plaintiffs.
The lawsuit cites fire crew reports and reporting by the Statesman
Journal to justify its claim that downed power lines were the
primary cause of the fires, as opposed to the original Beachie
Creek Fire that began in the Opal Creek Wilderness.
A final report on the cause of the combination Santiam and Beachie
Creek fires has yet to be issued.
'Extremely critical weather' doesn't bring shutoff
The lawsuit notes that on Sept. 5, the National Weather Service
warned Oregon was about to experience a historic wind event and
"extremely critical fire conditions."
Even so, the lawsuit says, Pacific Power left its powerlines
energized.
Pacific Power told the Statesman Journal in a Sept. 24 story that
"communities in Santiam Canyon are not in its designated 'Public
Safety Power Shutoff area.'"
"The winds that blew through the Santiam Canyon were atypical and
very different and much faster-moving from what we would normally
see," the company said. "Pacific Power did not perform a Public
Safety Power Shutoff prior to the historic windstorm. However, we
did de-energize lines at the request of local emergency agencies to
allow firefighters to do their jobs safely."
Other power companies did shut down some of their power lines.
Portland General Electric shut down its power lines to 5,000
customers near Mount Hood. And Consumers Power Inc., an electric
co-op in the Santiam Canyon, shut off power around 7 p.m.
"All indications to us, in our service territory, was that those
areas were at very high risk," James Ramseyer, member services
director and spokesman for Consumers Power, told the Statesman
Journal. "We were at the highest level of danger we could be."
Power lines cause damaging flames, not wildland fire
The lawsuit quotes fire crews in stressing that the fires were
caused by downed power lines, and not the original Beachie Creek
Fire, which ignited in mid-August and stayed small for weeks in the
Opal Creek Wilderness.
"The fires that destroyed the homes of Plaintiffs and class members
were not caused by a wildland forest fire; rather these fires were
caused by a series of downed power lines," the lawsuit says.
The lawsuit quotes a report from Northwest Incident Management Team
13 from Sept. 9.
"Originally named the Beachie Creek fire, it has been renamed the
Santiam Fire acknowledging that the Beachie Creek fire no longer
was the main cause of rapid fire growth and was instead fed by a
series of small fires largely caused by downed power lines and
other ignition sources throughout the area," the report said.
"Defendants had a duty to properly maintain and operate their
electrical infrastructure and equipment to ensure it would not
become a source of fires," the lawsuit said. "The catastrophic
losses could have been prevented; these community-destroying fires
were not inevitable. Defendants could have shut off the power,
invested in their infrastructure to minimize the risk of fire, and
taken other reasonable steps to operate their systems to eliminate
the risk of fire altogether."
But because they didn't, "PacifiCorp and Pacific Power have caused
Plaintiffs, the class members, and their communities to suffer
devastating property damage and economic losses that will scar
families and communities for generations," the lawsuit says.
In December, Pacific Gas & Electric agreed to a $13.5 billion
settlement for damages caused by two fires in Northern California
which were determined to have been started by its equipment.
James and Colbert lose home in fires
The two plaintiffs in the lawsuit, James and Colbert, lived
together at a house on Rowena Avenue in Lyons, the lawsuit says.
James was the owner of the property and lived at the home for 17
years, while Colbert lived in the home for the past four years and
owned personal property in and around the home.
The property included a three-car garage, with one of the bays
filled with tools used for maintaining rental properties in
Portland, the lawsuit says.
"As a result of the fire that destroyed their home, Ms. James and
Ms. Colbert lost almost everything on their property, including
their home, the garage and all its contents, four cars, and their
personal belongings," the lawsuit says. [GN]
PEABODY ENERGY: Howard Smith Alerts of Securities Class Action
--------------------------------------------------------------
Law Offices of Howard G. Smith on Oct. 1 disclosed that a class
action lawsuit has been filed on behalf of investors who purchased
Peabody Energy Corporation ("Peabody" or the "Company") (NYSE: BTU)
common stock between April 3, 2017 and October 28, 2019, inclusive
(the "Class Period"). Peabody investors have until November 27,
2020 to file a lead plaintiff motion.
Investors suffering losses on their Peabody investments are
encouraged to contact the Law Offices of Howard G. Smith to discuss
their legal rights in this class action at 888-638-4847 or by email
to howardsmith@howardsmithlaw.com.
On September 28, 2018, Peabody issued a press release announcing
that it did "not expect any production from North Goonyella in the
fourth quarter of 2018" due to a fire occurring within the mine.
On this news, Peabody's stock price fell $5.54, or over 13%, to
close at $35.64 per share on September 28, 2018, thereby injuring
investors.
Then, on February 6, 2019, Peabody reported disappointing financial
earnings for fourth quarter 2018 due to remediation costs and lack
of production at the North Goonyella mine. The Company also
announced that production would not "begin to ramp up in the early
months of 2020."
On this news, Peabody's stock price fell $3.80, or 11%, to close at
$32.05 per share on February 6, 2019, thereby injuring investors
further.
Finally, on October 29, 2019, Peabody disclosed that restarting
operations at the North Goonyella mine would not resume for three
or more years due to local regulator QMI's strict restrictions.
On this news, Peabody's stock price fell $3.56, or 22%, to close at
$12.48 per share on October 29, 2019, thereby injuring investors
further.
The complaint alleges that Defendants made materially false and/or
misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, Defendants failed to disclose to investors
that: (1) Peabody had failed to implement adequate safety controls
at the North Goonyella mine to prevent the risk of a spontaneous
combustion event; (2) Peabody failed to follow its own safety
procedures; (3) as a result, the North Goonyella mine was at a
heightened risk of shutdown; (4) Peabody's low-cost plan to restart
operations at the North Goonyella mine posed unreasonable safety
and environmental risks; (5) the Queensland Mines Inspectorate
("QMI"), the Australian body responsible for ensuring acceptable
health and safety standards, would likely mandate a safer,
cost-prohibitive approach; (6) as a result, there would be major
delays in reopening the North Goonyella mine and restarting coal
production; and (5) that, as a result, of the foregoing,
Defendants' statements about the Peabody's business, operations,
and prospects were materially misleading and/or lacked a reasonable
basis.
If you purchased Peabody common stock, have information or would
like to learn more about these claims, or have any questions
concerning this announcement or your rights or interests with
respect to these matters, please contact Howard G. Smith, Esquire,
of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112,
Bensalem, Pennsylvania 19020 by telephone at (215) 638-4847,
toll-free at (888) 638-4847, or by email to
howardsmith@howardsmithlaw.com, or visit our website at
www.howardsmithlaw.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Law Offices of Howard G. Smith
Howard G. Smith, Esquire
215-638-4847
888-638-4847
howardsmith@howardsmithlaw.com
www.howardsmithlaw.com [GN]
PENRICH INVESTMENT: Adina Thorn Mulls Class Action Amid Probe
-------------------------------------------------------------
LawFuel reports that Auckland lawyer Adina Thorn is planning a
class action against the Christchurch promoters of the Penrich
Investment Fund, currently being investigated by the Serious Fraud
Office.
What staggered me was that Adina herself was an investor in the
fund. I say that as she's quoted by the Herald saying Penrich
"billed itself as making bets on interest and foreign exchange
movements."
For God's sake, that's absolutely no different than offering to
make bets on behalf of "investors" on race-horses. Far from
investing, instead it's gambling in which for every winner there's
a corresponding loser.
The Penrich promoters, according to the reports, may have
misrepresented their size, financial strength and past performance,
all offences, albeit basically puffery.
But the salient fact remains that punters knowingly gave them money
to speculate on their behalves, which they did and seemingly picked
the wrong horses.
Unless it can be shown that in fact, they made no bets and instead
pocketed their punters' funds, Adina will simply be throwing good
money after bad. [GN]
PINTEC TECHNOLOGY: Bragar Eagel Alerts of Class Action Filing
-------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, on Sept. 30 disclosed that a class action lawsuit
has been filed in the United States District Court for the Southern
District of New York on behalf of investors that purchased Pintec
Technology Holdings Limited ( PT) securities pursuant and/or
traceable to the registration statement and prospectus
(collectively, the "Registration Statement") issued in connection
with the Company's October 2018 initial public offering ("IPO").
Investors have until November 30, 2020 to apply to the Court to be
appointed as lead plaintiff in the lawsuit.
In October 2018, Pintec completed its IPO in which it sold more
than 3.7 million American Depositary Shares ("ADSs" or "shares") at
$11.88 per share.
On July 30, 2019, the Company filed its fiscal 2018 annual report,
in which it restated previously disclosed financial results. Among
other things, the Company reported net income of $315,000 for
fiscal year 2018, compared to its prior disclosure of $1.068
million net income. Pintec also disclosed that there were material
weaknesses in its internal control over financial reporting related
to cash advances outside the normal course of business to Jimu
Group, a related party, and to a non-routine loan financing
transaction with a third-party entity, Plutux Labs.
On this news, the Company's share price fell $0.53, or more than
13%, over the next several trading sessions, to close at $3.40 per
share on August 5, 2019, thereby injuring investors.
On June 15, 2020, Pintec disclosed that it could not timely file
its fiscal 2019 annual report and that it anticipated reporting a
significant change in results of operations. Specifically, the
Company disclosed that it "erroneously recorded revenue earned from
certain technical service fee on a net basis" for fiscal years 2017
and 2018. Moreover, Pintec "announced a net loss of RMB906.5
million in the full year of 2019 due to RMB890.7 million of
provision for credit loss in amounts due from a related party, Jimu
Group, and RMB200 million of impairment in prepayment for long-term
investment."
By the commencement of the action, Pintec shares were trading as
low as $0.92 per share, a nearly 92% decline from the $11.88 per
share IPO price.
The complaint, filed September 29, 2020, alleges that the
Registration Statement was false and misleading and omitted to
state material adverse facts. Specifically, defendants failed to
disclose to investors: (1) that the Company erroneously recorded
revenue earned from certain technical service fee on a net basis,
rather than a gross basis; (2) that there were material weaknesses
in Pintec's internal control over financial reporting related to
cash advances outside the normal course of business to Jimu Group,
a related party, and to a non-routine loan financing transaction
with a third-party entity, Plutux Labs; (3) that, as a result of
the foregoing, the Company's financial results for fiscal 2017 and
2018 had been misstated; and (4) that, as a result of the
foregoing, defendants' positive statements about the Company's
business, operations, and prospects, were materially misleading
and/or lacked a reasonable basis.
If you purchased Pintec securities pursuant and/or traceable to the
Registration Statement issued in connection with Pintec's October
2018 IPO, have information, would like to learn more about these
claims, or have any questions concerning this announcement or your
rights or interests with respect to these matters, please contact
Brandon Walker, Melissa Fortunato, or Marion Passmore by email at
investigations@bespc.com, telephone at (212) 355-4648, or by
filling out this contact form. There is no cost or obligation to
you.
About Bragar Eagel & Squire, P.C.
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York and California. The firm represents
individual and institutional investors in commercial, securities,
derivative, and other complex litigation in state and federal
courts across the country. For more information about the firm,
please visit www.bespc.com. Attorney advertising. Prior results do
not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
PINTEC TECHNOLOGY: Gross Law Alerts of Class Action Filing
----------------------------------------------------------
The securities litigation law firm of The Gross Law Firm issues the
following notice on behalf of shareholders in the following
publicly traded companies. Shareholders who purchased shares in the
following companies during the dates listed are encouraged to
contact the firm regarding possible Lead Plaintiff appointment.
Appointment as Lead Plaintiff is not required to partake in any
recovery.
Pintec Technology Holdings Limited (NASDAQ:PT)
This lawsuit is on behalf of shareholders who purchased PT
securities pursuant and/or traceable to the registration statement
and prospectus issued in connection with the Company's October 2018
initial public offering.
A class action has commenced on behalf of certain shareholders in
Pintec Technology Holdings Limited. The filed complaint alleges
that defendants made materially false and/or misleading statements
and/or failed to disclose that: (1) the Company erroneously
recorded revenue earned from certain technical service fee on a net
basis, rather than a gross basis; (2) there were material
weaknesses in Pintec's internal control over financial reporting
related to cash advances outside the normal course of business to
Jimu Group, a related party, and to a non-routine loan financing
transaction with a third-party entity, Plutux Labs; (3) as a result
of the foregoing, the Company's financial results for fiscal 2017
and 2018 had been misstated; and (4) as a result of the foregoing,
Defendants' positive statements about the Company's business,
operations, and prospects, were materially misleading and/or lacked
a reasonable basis.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/pintec-technology-holdings-limited-loss-submission-form/?id=10007&from=1
Progenity, Inc. (NASDAQ:PROG)
This lawsuit is on behalf of all purchasers of Progenity common
stock pursuant and/or traceable to the registration statement, as
amended, issued in connection with Progenity's June 2020 initial
public offering.
A class action has commenced on behalf of certain shareholders in
Progenity, Inc. The filed complaint alleges that defendants made
materially false and/or misleading statements and/or failed to
disclose that: (i) that Progenity had overbilled government payors
by $10.3 million in 2019 and early 2020 and, thus, had materially
overstated its revenues, earnings and cash flows from operations
for the historical financial periods provided in the registration
statement; (ii) that Progenity would need to refund this
overpayment in the second quarter of 2020 (the same quarter in
which the initial public offering was conducted), adversely
impacting its quarterly results; and (iii) that Progenity was
suffering from accelerating negative trends in the second quarter
of 2020 with respect to the Company's testing volumes, revenues and
product pricing.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/progenity-inc-loss-submission-form/?id=10007&from=1
Tactile Systems Technology, Inc. (NASDAQ:TCMD)
Investors Affected: May 7, 2018 - June 8, 2020
A class action has commenced on behalf of certain shareholders in
Tactile Systems Technology, Inc. The filed complaint alleges that
defendants made materially false and/or misleading statements
and/or failed to disclose that: (1) while Tactile publicly touted a
$4 plus billion or $5 plus billion market opportunity, in truth,
the total addressable market for Tactile's pneumatic compression
devices was materially smaller; (2) to induce sales growth and
share gains, Tactile and/or its employees were engaged in illicit
and illegal sales and marketing activities in violation of
applicable federal and state rules and public payer regulations;
(3) the foregoing illicit and illegal sales and marketing
activities increased the risk of a Medicare audit of Tactile's
claims and criminal and civil liability; (4) Tactile's revenues
were in part the product of unlawful conduct and thus
unsustainable; and that as a result of the foregoing, (5)
Defendants' public statements, including Tactile's year-over-year
revenue growth, the purported growth drivers, and the effectiveness
of Tactile's internal controls over financial reporting were
materially false and misleading at all relevant times.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/tactile-systems-technology-inc-loss-submission-form/?id=10007&from=1
The Gross Law Firm is committed to ensuring that companies adhere
to responsible business practices and engage in good corporate
citizenship. The firm seeks recovery on behalf of investors who
incurred losses when false and/or misleading statements or the
omission of material information by a Company lead to artificial
inflation of the Company's stock. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (212) 537-9430
Fax: (833) 862-7770 [GN]
PINTEC TECHNOLOGY: Rosen Law Alerts of Class Action Filing
----------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Oct. 1
announced the filing of a class action lawsuit on behalf of
purchasers of the securities of Pintec Technology Holdings Limited
(NASDAQ: PT) pursuant and/or traceable to the registration
statement issued in connection with the Company's October 2018
initial public offering (the "IPO"). The lawsuit seeks to recover
damages for Pintec investors under the federal securities laws.
To join the Pintec class action, go to
http://www.rosenlegal.com/cases-register-1608.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
According to the lawsuit, the registration statement was false and
misleading and omitted to state material facts. Specifically,
defendants failed to disclose to investors that: (1) the Company
erroneously recorded revenue earned from certain technical service
fees on a net basis, rather than a gross basis; (2) there were
material weaknesses in Pintec's internal control over financial
reporting related to cash advances outside the normal course of
business to Jimu Group, a related party, and to a non-routine loan
financing transaction with a third-party entity, Plutux Labs; (3)
as a result of the foregoing, the Company's financial results for
fiscal 2017 and 2018 had been misstated; and (4) as a result of the
foregoing, defendants' positive statements about the Company's
business, operations, and prospects, were materially misleading
and/or lacked a reasonable basis. When the true details entered the
market, the lawsuit claims that investors suffered damages.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than November
30, 2020. A lead plaintiff is a representative party acting on
behalf of other class members in directing the litigation. If you
wish to join the litigation, go to
http://www.rosenlegal.com/cases-register-1608.htmlor to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
cases@rosenlegal.com.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 3 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors. Attorney
Advertising. Prior results do not guarantee a similar outcome.
CONTACT:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
PIVOTAL SOFTWARE: Consolidated Amended Securities Suit Dismissed
----------------------------------------------------------------
In the case, IN RE PIVOTAL SECURITIES LITIGATION, Master File No.
3:19-cv-03589-CRB (N.D. Cal.), Judge Charles R. Breyer of the U.S.
District Court for the Northern District of California granted
Pivotal's motion to dismiss the Plaintiffs' Consolidated Amended
Class Action Complaint ("CAC").
The consolidated class action alleges violations of the Securities
Act of 1933 and the Securities Exchange Act of 1934 against
Pivotal. The Purchasers of Pivotal's securities argue that they
are entitled to damages caused by Pivotal's alleged false and
misleading statements about its financial and business condition.
Defendant Pivotal is a San Francisco-based information technology
and software company founded in 2013. It provides a cloud-native
application platform, Pivotal Cloud Foundry ("PCF"), and strategic
services. Pivotal's flagship product is Pivotal Application
Service ("PAS"), and in February 2018, Pivotal made its new
product, Pivotal Container Service ("PKS") commercially available.
PKS allows customers to "more easily deploy and operate
Kubernetes," an open-source system designed for managing
containerized workloads and services.
At all relevant times, Defendant Robert Mee served as Pivotal's
CEO, and Defendant Cynthia Gaylor served as Pivotal's CFO.
Defendants Mee and Gaylor possessed the power and authority to
control the contents of Pivotal's Securities and Exchange
Commission ("SEC") filings, press releases, and other market
communications.
Defendants Paul Martiz, Egon Durban, William Green, Marcy Klevorn,
Khozema Shipchandler, and Michael S. Dell each signed the
Registration Statement, solicited the investing public to purchase
securities issued pursuant thereto, hired and assisted the
underwriters, and planned and contributed to the initial public
offering ("IPO") and Registration Statement.
Defendants Morgan Stanley & Co. LLC; Goldman Sachs & Co. LLC;
Citigroup Global Markets Inc.; Merrill Lynch, Pierce, Fenner &
Smith Inc.; Barclays Capital Inc.; Credit Suisse Securities (USA)
LLC; RBC Capital Markets, LLC; UBS Securities LLC; Wells Fargo
Securities LLC; KeyBanc Capital Markets Inc.; William Blair & Co.,
L.L.C.; Mischler Financial Group, Inc.; Samuel A. Ramirez & Co.,
Inc.; Siebert Cisneros Shank & Co., LLC; and Williams Capital
Group, L.P. ("Underwriter Defendants") are financial services
companies that acted as underwriters for Pivotal's IPO, helping to
draft the Registration Statement and solicit investors to purchase
securities issued pursuant thereto. Representatives for the
Underwriter Defendants allegedly conducted a "due diligence"
investigation into Pivotal's operations and financial prospects,
met with Pivotal executives for "drafting sessions," and caused the
Registration Statement to be filed with the SEC.
The Plaintiff class consists of all persons and entities, other
than the Defendants, who purchased or otherwise acquired (1)
Pivotal's common stock traceable to the registration statement and
prospectus issued in connection with its April 2018 IPO, and/or (2)
Pivotal securities between April 20, 2018 and June 4, 2019. The
Lead Plaintiffs in the matter are the Oklahoma City Employee
Retirement System and the Police Retirement System of St. Louis.
In November 2019, the Court consolidated three related securities
class actions against Pivotal, and appointed Oklahoma as the Lead
Plaintiff. The Plaintiffs subsequently filed the CAC on Feb. 11,
2020.
On March 27, 2020, Pivotal filed a motion to dismiss the CAC, a
declaration in support of the motion that attached twenty-one
documents, some of which were incorporated in the CAC by reference,
and a request for the Court to consider these documents and to take
judicial notice of Pivotal's SEC filings. The Plaintiffs oppose
Pivotal's motion to dismiss. Pivotal filed a reply to Plaintiffs'
opposition. The Court also held a motion hearing on July 17,
2020.
First, Judge Breyer considers Pivotal's request for judicial notice
and incorporation by reference. Second, he addresses the
Plaintiffs' claims concerning Pivotal's registration statement and
prospectus, analyzing the allegations under Sections 11, 12(a)(2),
and 15 of the Securities Act. Third, he examines the Plaintiffs'
claims regarding the various statements made during the Class
Period, evaluating the allegations under Sections 10(b) and 20(a)
of the Exchange Act.
Pivotal attaches 21 documents (Exhibits 1-21) to the Declaration of
Robert L. Cortez Webb and cites to a subset of these in its motion
to dismiss. Pivotal has asked the Court to consider documents
under the incorporation-by-reference doctrine and to take judicial
notice of other documents. The Plaintiffs do not oppose Pivotal's
request, but they maintain that these documents only may be
considered for their existence -- not for the truth of the matters
asserted therein or for matters that are disputed.
Exhibit 1 is Pivotal's registration statement; Exhibits 2, 5, and
12 are Pivotal's SEC filings; and Exhibits 15 through 19 are
transcripts of earnings calls and corporate presentations, all of
which, according to the CAC, allegedly contain materially false or
misleading statements. Because these documents form the basis of
the Plaintiffs' complaint, they are subject to incorporation by
reference. Similarly, Exhibit 20 is the transcript of the June 4,
2019 earnings call, which the CAC repeatedly references to
illustrate the materialization of previously undisclosed risks. It
is likewise subject to incorporation by reference.
Exhibit 21 is an analyst report that the CAC identifies to define
"the cloud" and to demonstrate the positive analyst coverage
following Pivotal's IPO. It does not satisfy the
incorporation-by-reference doctrine's requirements, as the report
is not referenced extensively in, nor does it form the basis of,
the complaint. The Judge thus declines to take judicial notice of
Exhibit 21.
Exhibits 3, 4, 6-8 (Pivotal's 10-Q forms filed with the SEC) and
Exhibits 9-11, 13, 14 (Pivotal's 8-K forms filed with the SEC) are
not cited in the CAC. These documents are not subject to
incorporation by reference. Nonetheless, the SEC filings are
publicly-filed documents whose accuracy cannot reasonably be
questioned and are therefore subject to judicial notice. The Judge
therefore takes judicial notice of Pivotal's SEC filings for the
sole purpose of determining what representations Pivotal made to
the market. He does not take notice of the truth of any facts
asserted in these documents.
Considering the Plaintiffs' Sections 11 and 12(a)(2) claims
together and then addressing the control-person claim under Section
15, the Judge finds that the Plaintiffs fails to establish falsity.
Pivotal accurately points out that the PCF platform contained
several components, which included both PAS and PKS, and only the
former did not incorporate Kubernetes at the time. Even taking as
true the assertion that Pivotal's strategy prevented the individual
sale of PKS, it does not render Pivotal's statements false. The
CAC also does not provide any further factual assertions to
plausibly allege that these statements were false or misleading.
The remaining challenged risk disclosures fail for the same reason:
the CAC does not provide anything beyond conclusory assertions that
the risks had already materialized.
Taking all of the Plaintiffs' allegations as true, the Judge finds
that the CAC fails to state a claim under Item 303 for which relief
can be granted. Accordingly, he will dismiss the Plaintiffs'
Sections 11 and 12(a)(2) claims without prejudice, as the
Plaintiffs indicated at the motion hearing that they could plead
additional facts demonstrating falsity. Importantly, amendment as
to some of the challenged statements (e.g., corporate puffery)
would be futile for the reasons explained.
To state a claim against a control person under Section 15 of the
Securities Act, the Plaintiffs must plausibly allege (1) an
underlying violation of Section 11 or 12, and (2) control. Because
they have not plausibly alleged an underlying violation of Section
11 or 12, their Section 15 claim will be dismissed with leave to
amend.
The Plaintiffs also bring claims under Sections 10(b) and 20(a) of
the Exchange Act. They allege that Pivotal Defendants made false
and materially misleading statements and omissions throughout the
class period, which artificially inflated or maintained Pivotal's
securities price and operated as a fraud or deceit on all persons
and entities who purchased or otherwise acquired those securities
during the Class Period.
After a careful review of every alleged false statement or omission
in the CAC, the Judge finds that tge Plaintiffs failed to plead
specific facts indicating why each of Pivotal's statements were
false when made. The CAC instead provides a conclusory litany of
reasons for the statements' falsity that are insufficiently
supported by vague accounts from seven CWs. Additionally, many
statements are not actionable because they are either statements of
corporate optimism or forward-looking statements protected by the
PSLRA's Safe Harbor.
For these reasons, the Judge will dismiss the Plaintiffs' Section
10(b) claim with leave to amend, as the Plaintiffs indicated at the
hearing that they could plead additional facts demonstrating
scienter. Statements that are not actionable should not be
included in any amended complaint.
Section 20(a) of the Exchange Act provides a right of action
against any person who violates any provision of the chapter or the
rules or regulations thereunder by purchasing or selling a security
while in possession of material, nonpublic information. To plead a
Section 20(a) claim, the Plaintiffs must allege a predicate insider
trading violation of the Exchange Act. To establish this claim
under Securities Exchange Act Section 20(a), the Plaintiffs must
show (1) a primary violation of federal securities law, and (2)
that the defendant exercised actual power or control over the
primary violator. Because they fail to state a claim under Section
10(b), their "control person" claim against Pivotal will therefore
be dismissed with leave to amend.
In sum, Judge Breyer granted Pivotal's motion to dismiss with leave
to amend. Any statements that are not actionable and cannot be
amended around (e.g., puffery and forward-looking statements)
should not be part of any amended complaint.
A full-text copy of the District's July 21, 2020 Order is available
at https://bit.ly/3jrObQ0 from Leagle.com.
PNC FINANCIAL: Breached Fiduciary Duties, Johnson & Demps Claim
---------------------------------------------------------------
HENRENA JOHNSON and BARBARA DEMPS, Individually and as a
representatives of a class of similarly situated persons, on behalf
of the PNC FINANCIAL SERVICES GROUP, INC. INCENTIVE SAVINGS PLAN,
v. THE PNC FINANCIAL SERVICES GROUP, INC., THE PNC FINANCIAL
SERVICES GROUP, INC. INCENTIVE SAVINGS PLAN ADMINISTRATIVE
COMMITTEE and DOES No. 1-20, Whose Names Are Currently Unknown,
Case No. 2:20-cv-01493-RJC (W.D. Pa., Oct. 2, 2020), is brought by
the Plaintiffs on behalf of the Plan and a class of
similarly-situated participating employees, against the Defendants
for breach of their fiduciary duties under the Employee Retirement
Income Security Act.
As of December 31, 2018, the Plan had 66,032 participants with
account balances and assets totaling approximately $5.7 billion,
placing it in the top 0.1% of defined contribution plans by plan
size. Defined contribution plans with substantial assets, like the
Plan, have significant bargaining power and the ability to demand
low-cost administrative and investment management services within
the marketplace for administration of defined contribution plans
and the investment of defined contribution assets. The marketplace
for defined contribution retirement plan services is
well-established and can be competitive when fiduciaries of defined
contribution retirement plans act in an informed and prudent
fashion.
The Plaintiffs contend that the Defendants maintain the Plan and
are responsible for selecting, monitoring, and retaining the
service provider(s) that provide investment, recordkeeping, and
other administrative services. The Defendants are fiduciaries under
ERISA, and, as such, are obligated to (a) act for the exclusive
benefit of participants, (b) ensure that the investment options
offered through the Plan are prudent and diverse, and (c) ensure
that Plan expenses are fair and reasonable. The Plaintiffs allege
that the Defendants have breached their fiduciary duties to the
Plan and have allowed unreasonable recordkeeping/administrative
expenses to be charged to the Plan throughout the Class Period.
The Plaintiffs seek to recover and obtain all losses resulting from
each breach of fiduciary duty. In addition, the Plaintiffs seek
such other equitable or remedial relief for the Plan and the
proposed class as the Court may deem appropriate and just under all
of the circumstances.
Johnson is a former employee of PNC and is a current participant in
the Plan under 29 U.S.C. section 1002(7). Johnson is a resident of
Jacksonville, Florida. Demps is a former employee of PNC and is
also a current participant in the Plan
PNC is a financial services company that provides retail and
corporate banking and asset management.[BN]
The Plaintiffs are represented by:
Gary F. Lynch, Esq.
Kelly K. Iverson, Esq.
CARLSON LYNCH LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: glynch@carlsonlynch.com
kiverson@carlsonlynch.com
- and -
James E. Miller, Esq.
Laurie Rubinow, Esq.
James C. Shah, Esq.
Michael P. Ols, Esq.
Alec J. Berin, Esq.
Kolin C. Tang, Esq.
SHEPHERD FINKELMAN MILLER & SHAH, LLP
65 Main Street
Chester, CT 06412
Telephone: (860) 526-1100
Facsimile: (866) 300-7367
E-mail: jmiller@sfmslaw.com
lrubinow@sfmslaw.com
jshah@sfmslaw.com
mols@sfmslaw.com
aberin@sfmslaw.com
ktang@sfmslaw.com
PORTLAND, OR: 2nd Amended Complaint Filed in Index Newspapers Suit
------------------------------------------------------------------
A second amended complaint has been filed in the case, INDEX
NEWSPAPERS LLC d/b/a PORTLAND MERCURY; DOUG BROWN; BRIAN CONLEY;
SAM GEHRKE; MATHIEU LEWIS-ROLLAND; KAT MAHONEY; SERGIO OLMOS; JOHN
RUDOFF; ALEX MILAN TRACY; TUCK WOODSTOCK; JUSTIN YAU; and those
similarly situated, Plaintiffs, v. CITY OF PORTLAND; and JOHN DOES
1-60, Defendants, Case No. 3:20-cv-1035-SI (D. Or.) on July 17,
2020.
The named Plaintiffs originally commenced the putative class action
against the City of Portland and numerous as-of-yet unnamed
individual and supervisory officers of the Portland Police Bureau
("PPB") and other agencies allegedly working in concert with the
PPB. As alleged in the First Amended Complaint ("FAC"), the
Plaintiffs seek to stop the Portland police from assaulting news
reporters, photographers, legal observers, and other neutrals who
are documenting the police's violent response to protests over the
murder of George Floyd.
The Plaintiffs assert that the police's efforts to intimidate the
press and suppress reporting on the police's own misconduct offends
fundamental constitutional protections and strikes at the core of
democracy. They allege violations of the First and Fourth
Amendments of the United States Constitution and Article I,
sections 8 and 26 of the Oregon Constitution. They request
declaratory and injunctive relief and money damages.
The Plaintiffs filed their original Complaint on June 28, 2020. On
July 2, the Court entered a temporary restraining order against the
City upon the request of the Plaintiffs. On July 16, the Court
entered a stipulated preliminary injunction against the City.
The second amended complaint was filed after the Plaintiffs sought
and obtained leave from the Court for the filing of such.
Plaintiffs wanted to amended the complaint to add as Defendants the
U.S. Department Homeland Security ("DHS") and the U.S. Marshals
Service ("USMS") "Federal Entities").
The Plaintiffs and the Plaintiff Class want to continue attending
protests to gather news and observe and document how police are
treating demonstrators, and whether demonstrators are actually
provoking the outpouring of violence from the police, as the police
claim, or whether police are engaging in indiscriminate unprovoked
violence. They also want to be able to document how police are
dispersing protesters. They are fearful, however, that they
themselves will be targeted for the same violence police mete out
against protesters. The police have prevented the Plaintiffs and
the Plaintiff Class from documenting how police have dispersed
protesters and have repeatedly told them that they will be
similarly arrested and assaulted if they fail to stop recording
these events.
The City opposed the Plaintiffs' Motion to Amend on two grounds --
the City argued that joinder of the Federal Entities is not
permissible under Rule 20 of the Federal Rules of Civil Procedure
and the City argued that joinder of the Federal Entities would
unfairly prejudice the City in the lawsuit.
On review, the Court held that the Plaintiffs have satisfied Rule
20's requirements for permissive joinder. Regarding the City's
first subsidiary argument, Rule 20 does not require the Plaintiffs
to show common liability among all named Defendants. Regarding the
City's second subsidiary argument, Rule 20(a)(2)(A) requires that
the assertion of joint, several, or alternative liability arise out
of the same transaction, occurrence, or series of transactions or
occurrences. The Judge is satisfied that there is an adequate
logical relationship between the events occurring every night in
June and the events occurring on July 12th to show they are part of
the same series of occurrences for purposes of Rule 20. Regarding
the City's third subsidiary argument, Rule 20(a)(2)(B) requires
that the Plaintiffs' claims contain questions of law or fact common
to all Defendants. There are several questions of law or fact that
are common in the Plaintiffs' claims against the City and the
Federal Entities. These common questions suffice for purposes of
Rule 20.
The City also argued that in the event these cases proceed to a
jury, the inclusion of the Federal Entities in the same lawsuit
with the City would result in the simultaneous litigation of two
separate sets of incidents, governed by different legal standards,
different directives, and involving separate damages claims. The
City adds that the inclusion of the Federal Entities'
constitutionally problematic behavior alongside the City's lawful
conduct presents an undue risk that the conduct of the Federal
Entities will be attributed to the City in the mind of the jury, or
that the Federal Entities' fault would improperly be attributed or
apportioned to the City.
The Judge finds it too early in the life of the lawsuit for the
Court to reach any firm conclusions on the issue. If, after
discovery and any appropriate pretrial motions, the Court concludes
that there is a serious risk of unfair prejudice to the City from
having the claims alleged against the City decided by the same
jury, in a single trial, that decides the claims against the
Federal Entities, the Court can eliminate that risk by ordering
separate trials. Separate trials, if appropriate, would suffice to
cure any risk of unfair prejudice to the City. The Court will
consider ordering separate trials of the City and the Federal
Entities at the appropriate time, if necessary.
A copy of the Court's Decision allowing the filing of a second
amended complaint is available at https://bit.ly/3e3vLnC from
Leagle.com.
Matthew Borden -- borden@braunhagey.com -- J. Noah Hagey --
hagey@braunhagey.com -- Athul K. Acharya -- acharya@braunhagey.com
-- and Gunnar K. Martz -- martz@braunhagey.com -- BRAUNHAGEY &
BORDEN LLP, 351 California Street, Tenth Floor, San Francisco, CA
94104; Kelly K. Simon, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF
OREGON, P.O. Box 40585, Portland, OR 97240. Of Attorneys for
Plaintiffs.
Denis M. Vannier and Naomi Sheffield, Senior Deputy City Attorneys;
Ryan C. Bailey, Deputy City Attorney; and Youngwoo Joh, Assistant
Deputy City Attorney, OFFICE OF THE CITY ATTORNEY, 1221 SW Fourth
Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant
City of Portland.
PROGENITY INC: Robbins Geller Reminds of Oct. 27 Motion Deadline
----------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on Oct. 1 disclosed that
purchasers of Progenity, Inc. (NASDAQ:PROG) common stock pursuant
and/or traceable to the registration statement, as amended (the
"Registration Statement"), issued in connection with Progenity's
June 2020 initial public offering ("IPO") have until October 27,
2020 to seek appointment as lead plaintiff in the Progenity class
action lawsuit, Soe v. Progenity, Inc., No. 20-cv-01683 (S.D.
Cal.), which is pending before Judge Cathy Ann Bencivengo.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased Progenity common stock pursuant to the June
2020 IPO to seek appointment as lead plaintiff in the Progenity
class action lawsuit. A lead plaintiff acts on behalf of all other
class members in directing the Progenity class action lawsuit. The
lead plaintiff can select a law firm of its choice to litigate the
Progenity class action lawsuit. An investor's ability to share in
any potential future recovery of the Progenity class action lawsuit
is not dependent upon serving as lead plaintiff. If you wish to
serve as lead plaintiff in the Progenity class action lawsuit, you
must move the Court no later than October 27, 2020. If you wish to
discuss the Progenity class action lawsuit or have any questions
concerning this notice or your rights or interests, please contact
plaintiff's counsel, Brian E. Cochran of Robbins Geller, at
800/449-4900 or 619/231-1058 or via e-mail at bcochran@rgrdlaw.com.
You can view a copy of the complaint as filed at
https://www.rgrdlaw.com/cases-progenity-inc-class-action-lawsuit.html.
The Progenity class action lawsuit charges Progenity, certain of
its officers and directors, and the underwriters of its IPO with
violations of the Securities Act of 1933. Progenity specializes in
developing and commercializing molecular testing products and
precision medicine applications. Progenity provides in vitro
molecular tests designed to assist parents in making informed
decisions related to family planning, pregnancy, and complex
disease diagnosis.
On or about June 22, 2020, defendants conducted Progenity's IPO. In
the IPO, defendants sold over 6.6 million shares of Progenity
common stock to the investing public at a price of $15 per share,
generating over $100 million in gross offering proceeds.
The Progenity class action lawsuit alleges that the Registration
Statement for the IPO was negligently prepared and, as a result,
contained untrue statements of material fact, omitted material
facts necessary to make the statements contained therein not
misleading, and failed to make the necessary disclosures required
under the rules and regulations governing its preparation.
Specifically, the Registration Statement failed to disclose, inter
alia, the following adverse facts that existed at the time of the
IPO, rendering numerous statements provided therein materially
false and misleading: (i) that Progenity had overbilled government
payors by $10.3 million in 2019 and early 2020 and, thus, had
materially overstated its revenues, earnings and cash flows from
operations for the historical financial periods provided in the
Registration Statement; (ii) that Progenity would need to refund
this overpayment in the second quarter of 2020 (the same quarter in
which the IPO was conducted), adversely impacting its quarterly
results; and (iii) that Progenity was suffering from accelerating
negative trends in the second quarter of 2020 with respect to
Progenity's testing volumes, revenues and product pricing.
Shortly after the IPO, the price of Progenity stock suffered
significant price declines. By August 14, 2020, Progenity stock
closed at just $7.71 per share – nearly 50% below the $15 per
share price investors paid for the stock in the IPO less than two
months previously.
The plaintiff is represented by Robbins Geller, which has extensive
experience in prosecuting investor class actions including actions
involving financial fraud.
Robbins Geller Rudman & Dowd LLP is one of the world's leading law
firms representing investors in securities litigation. With 200
lawyers in 9 offices, Robbins Geller has obtained many of the
largest securities class action recoveries in history. For seven
consecutive years, ISS Securities Class Action Services has ranked
the Firm in its annual SCAS Top 50 Report as one of the top law
firms in the world in both amount recovered for shareholders and
total number of class action settlements. Robbins Geller attorneys
have helped shape the securities laws and have recovered tens of
billions of dollars on behalf of aggrieved victims. Beyond securing
financial recoveries for defrauded investors, Robbins Geller also
specializes in implementing corporate governance reforms, helping
to improve the financial markets for investors worldwide. Robbins
Geller attorneys are consistently recognized by courts,
professional organizations and the media as leading lawyers in the
industry. Please visit http://www.rgrdlaw.comfor more
information.
Contacts:
Robbins Geller Rudman & Dowd LLP
Brian E. Cochran, 800-449-4900
bcochran@rgrdlaw.com [GN]
PROGRESSIVE SELECT: Bid for Class Certification Denied as Moot
--------------------------------------------------------------
In the class action lawsuit captioned as JONATHAN MORGAN, on behalf
of himself and all others similarly situated v. PROGRESSIVE SELECT
INSURANCE CO., Case No. 0:18-cv-61844-WPD (S.D. Fla.), the Hon.
Judge William P. Dimitrouleas entered an order:
1. granting the Defendant's Motion to Dismiss or in the
Alternative for Summary Final Judgment;
2. denying as moot the Plaintiff's Motion for Partial Summary
Judgment, Plaintiff's Motion for Class Certification, and
the Defendant's Motion in Limine;
3. dismissing the Plaintiff's claim; and
4. canceling the Calendar Call scheduled for September 11,
2020.
The Court finds the Plaintiff could not prove his breach of
contract claim, therefore the Defendant is entitled to summary
judgment. The Court won't review the remaining issues the
Defendant raises with the Plaintiff claim which are unique to the
Plaintiff.
The Plaintiff's single count complaint alleges that the "Defendant
breached the Policy by requiring transfer of the damaged vehicle to
the Defendant or its affiliate as an added condition in order to
obtain the actual cash value payment required under the Policy."
A copy of the Court's Order on motion for summary judgment is
available from PacerMonitor.com at https://bit.ly/2Eh21WS at no
extra charge.[CC]
PURDUE PHARMA: Manitoba to Join Opioid Class Action
---------------------------------------------------
CBC News reports that Manitoba is preparing to join a growing
class-action lawsuit against dozens of opioid manufacturers.
The province has introduced legislation to become part of the
British Columbia-led suit, which alleges that drug manufacturers
falsely marketed opioids as less addictive than other pain drugs.
"Our government has taken action to help the individuals, families
and communities that have been affected by the misuse of opioids,"
Justice Minister Cliff Cullen said on Oct. 1.
"Now it is time for Manitoba to hold these companies to account, by
joining other provinces and territories to take on the
pharmaceutical companies that have created such significant and
ongoing harm."
The Opioid Damages and Health Care Costs Recovery Act, introduced
in spring 2020, would allow Manitoba to join the class action
lawsuit launched by British Columbia in August 2018 and pursue
claims in the bankruptcy of Purdue Pharma.
The lawsuit names more than 40 manufacturers, wholesalers and
distributors of opioids in Canada.
Similar legislation has already been passed in B.C., Ontario,
Alberta, Saskatchewan, Newfoundland and Labrador, and Nova Scotia.
"The human cost of opioids -- such as addiction, poisoning,
hospitalizations and deaths -- is high, and we have invested
significant resources in the health-care system to respond to
opioids," said Health Minister Cameron Friesen, touting the $42
million spent by the province since October 2019 to address mental
health and addictions issues. [GN]
PWC: Faces Class Action Over Axsesstoday Accounting Work
--------------------------------------------------------
Hannah Wootton, writing for The Australian Financial Review,
reports that the country's largest blue-chip company auditor, PwC,
is facing a class action from bondholders of its collapsed audit
client Axsesstoday over allegations of shoddy accounting work by
the big four consultancy.
The action, filed in the Federal Court in August, is the seventh
time in the past decade that the firm has been sued over its work
on audit clients that later collapsed. It has so far settled four
of these.
Listed lending company Axsesstoday went into voluntary
administration in April 2019 after breaching its loan term
conditions and was later sold to an affiliate of private investment
firm Cerberus Capital Management for almost $260 million.
But a prospectus given to bondholders in June 2018 suggested
Axsesstoday was not at risk of breaching any loan or debt
obligations, and those investors now want compensation.
The bondholders allege that the audit giant failed to adequately
consider changes to accounting standards that would see the
financial assets and liabilities of lenders such as Axsesstoday
measured and classified differently.
Expected losses would also be recorded on a prospective basis,
rather than the incurred loss model used before the rule change.
These changes would ultimately contribute to Axsesstoday's
collapse.
The bondholders allege that PwC either failed to tell Axsesstoday
that it had not assessed the likely effect of the rule change on
the company's financials, or wrongly assessed it.
They also claim that by doing the accounting work behind the flawed
prospectus, PwC engaged in misleading or deceptive conduct.
They say that without these misrepresentations, they would not have
entered into the bonds.
The lead applicant, Compumod Investments, is seeking damages for
the more than $36,000 in bonds it lost when the company collapsed.
It had invested in the bonds as trustee for its staff super fund.
Other group members in the class action will also be entitled to
damages if their case is successful, though the quantum of these
amounts will not be known until everyone who plans to join the
action has done so.
Audit issues
PwC failed to raise any concerns about Axsesstoday's continued
survival in its initial audit of the company's last financial
statements before its collapse, but did so in its restated annual
report.
In August 2018, PwC signed off on Axsesstoday's financials without
flagging any concerns about the lender's ability to continue
trading.
Axsesstoday shares were suspended two weeks later in September
2018. The initial reason for the halt was for the board to review
company strategy, but it was followed by senior executive
departures.
At the end of November 2018, the company reissued its annual report
to take into account breaching its lending agreements during the
2017-18 period. The restatement cut the company's net profit and
earnings per share in half.
In the reissued report, signed off in November 2018, PwC flagged a
"material uncertainty related to going concern" for Axsesstoday.
The newly launched class action is not in relation to this audit
work.
The firm settled a case related to its audit work at Centro
Properties for around $67 million in 2012, and has also settled
cases related to its audits of Provident Capital, Great Southern
Finance and Ausbil Investment Management.
It continues to fight one case related to a former audit client, a
class action over failed education provider Vocation, in the
federal court. [GN]
QUDIAN INC: Bid to Reconsider Securities Claims Dismissal Denied
----------------------------------------------------------------
In the case, IN RE QUDIAN INC. SECURITIES LITIGATION, Case No.
17-CV-9741 (JMF) (S.D. N.Y.), Judge Jesse M. Furman of the U.S.
District Court for the Southern District of New York denied the
Plaintiffs' for partial reconsideration of the Court's Sept. 27,
2019 Opinion and Order.
The Plaintiffs in the putative class action move for partial
reconsideration of the Sept. 27, 2019 Opinion and Order, which
dismissed most of the Plaintiffs' securities fraud claims brought
under the Securities Act of 1933. In particular, the Plaintiffs
attempt to revive claims relating to statements by Qudian regarding
its data security protocols. More specifically, they argue that
the Registration Statement submitted in advance of Qudian's Oct.
18, 2017 initial public offering ("IPO") -- which contained various
statements touting the company's information security systems --
was materially misleading because Defendants failed to disclose
that Qudian had already experienced a massive data breach in early
2017 and that the negative consequences of the breach were ongoing
at the time" of the company's IPO.
The standards governing motions for reconsideration under Rule
59(e) and Local Rule 6.3 are the same and are meant to ensure the
finality of decisions and to prevent the practice of a losing party
examining a decision and then plugging the gaps of a lost motion
with additional matters.
Applying these standards, Judge Furman concludes that the
Plaintiffs' motion is without merit. The Plaintiffs' principal
argument -- that the Court overlooked Meyer v. JinkoSolar Holdings
Co., in dismissing their data breach claims -- is nothing more than
a veiled effort to relitigate an argument that was raised and
rejected in the first instance. In their opposition to the
Defendants' motion to dismiss, the Plaintiffs cited the JinkoSolar
case for the proposition that an issuer's statements misleadingly
touting the strength, quality, or character of an important
business practice or program are actionable.
But Judge Furman holds that the Court did not overlook or dispute
that proposition in its Opinion and Order; it merely held that,
when considered together and in context, the Defendants' statements
about its data security protocols were not misleading. The mere
fact that the Court did not cite the JinkoSolar case is of no
moment.
Put differently, citing or discussing the JinkoSolar case would not
have altered the conclusion reached by the court. In the
JinkoSolar case, the Second Circuit held that a manufacturer of
solar cells and solar panel products made materially misleading
misstatements and omissions when it touted its pollution compliance
protocols but failed to disclose "ongoing, serious pollution
problems" of which the company was plausibly aware at the time of
the offering.
The Second Circuit found the company's statements materially
misleading because of three critical facts. First, the company
described its compliance mechanisms in confident detail. Second,
at the time the registration statement became effective, the
prophylactic environmental measures it described "were then
failing." And third, the undisclosed ongoing violations were
"serious" and "substantial."
The current case is easily distinguished from the JinkoSolar case.
First, while JinkoSolar provided specific, confident assurances of
compliance, Qudian's registration statement contained only "generic
risk warnings." That is, JinkoSolar involved specificity that is
not present in the instant case. Second, while the statements in
JinkoSolar were not qualified, the statements in the instant case
explicitly cautioned investors that the company's compliance
measures were not perfect and that data security measures might
well be found wanting. Third, although Qudian did not explicitly
disclose that it had experienced a data security breach in early
2017, there is no evidence that its security protocols were failing
at the very time it issued its Registration Statement. And fourth,
although news of the breach allegedly caused a 5.28% drop in
Qudian's stock price, that drop pales in comparison to the 40% drop
in JinkoSolar.
In short, as the Court found in its Opinion and Order, considering
Qudian's statements as a whole, it did not fail to disclose
then-ongoing and serious violations that would cause a reasonable
investor to make an overly optimistic assessment of the risk. To
the contrary, any reasonable investor who read the offering
documents would have understood that data security remained an
ongoing problem for the company.
Accordingly, and for the reasons stated, the Judge holds that the
Plaintiffs' motion for reconsideration must be and is denied.
A full-text copy of the District Court's July 10, 2020 Memorandum
Opinion & Order is available at https://bit.ly/3ompSq8 from
Leagle.com.
SAFEGUARD PROPERTIES: Dismissal of James CPA Suit Partly Affirmed
-----------------------------------------------------------------
In the case, S. SCOTT JAMES; NOEL L. JAMES, a married couple, and
on behalf of others similarly situated., Plaintiffs-Appellants, v.
SAFEGUARD PROPERTIES LLC, a Delaware corporation,
Defendant-Appellee, Case No. 18-35953 (9th Cir.), the U.S. Court of
Appeals for the Ninth Circuit reversed in part and affirmed in part
the district court's dismissal of the Plaintiffs-Appellants' class
action suit.
Plaintiffs-Appellants Scott and Noel James appeal the district
court's dismissal of their class action suit against Safeguard
after the district court found the original sole named Plaintiff
lacked standing. They also appeal the district court's grant of
summary judgment to Safeguard on their claims for statutory
trespass and unfair and deceptive conduct under the Washington
Consumer Protection Act ("CPA") and seek certification of several
questions to the Washington Supreme Court.
The Ninth Circuit reversed the district court's dismissal of the
suit for lack of jurisdiction. The Appellate Court holds that when
a plaintiff lacks standing at the outset of a case, the
jurisdictional defect can be cured by the subsequent addition of
another plaintiff. The Jameses were added as the Plaintiffs prior
to the discovery that Bund lacked standing. The subsequent
addition of the Jameses retroactively cured the jurisdictional
defect present at the time of filing. The district court therefore
erred in dismissing the case based on a jurisdictional defect that
had been cured.
Next, the Ninth Circuit declined to certify the Appellants'
proposed questions about the "good faith" defense regarding the
Washington CPA claims to the Washington Supreme Court. Because the
Appellants did not request certification of their proposed
questions before the district court, there is a presumption against
certification at this stage of the proceedings. The Appellants
have demonstrated no "particularly compelling reasons" to overcome
that presumption. Multiple Washington cases discuss the good faith
defense in the context of CPA claims, so it is not a case where a
question of law has not been clearly determined by the Washington
courts. Moreover, one of the Appellants' questions is a factual --
not a legal -- question.
The Appellate Court affirmed the district court's grant of summary
judgment as to pre-Jordan CPA claims -- for both unfair and
deceptive acts -- and statutory trespass claims. Prior to Jordan
v. Nationstar Mortgage, LLC, Safeguard's conduct was lawful under
an arguable interpretation of then-existing state law. No genuine
dispute of material fact exists as to whether Safeguard acted in
good faith reliance on that interpretation. Safeguard relied on
its clients, the lenders and loan servicers with whom it
contracted, to ensure their loan agreements were in compliance with
the law; Safeguard's vendors that performed its property
preservations services were licensed by Washington's Labor Industry
Board; and Safeguard belonged to industry groups which provided
updates on the law. Safeguard also previously won lawsuits
concerning its lock-changing and property-preservation services,
without courts questioning its authority to enter and lock the
home.
Given all of these circumstances, the Ninth Circuit concludes that
Safeguard acted in good faith on a reasonable interpretation of
then-existing law and affirmed the grant of summary judgment.
Moreover, for these same reasons, there is no genuine issue of
material fact with respect to whether Safeguard acted "wrongfully"
within the meaning of Washington's statutory trespass statute.
Finally, the Ninth Circuit vacated the summary judgment order,
however, to the extent it applies to the absent class members
because summary judgment was entered before class members received
notice of the class action or had an opportunity to opt out.
The disposition does not address the Appellants' claims for common
law intentional trespass and common law negligent trespass. Those
claims were raised in Safeguard's motion for partial summary
judgment, but the district court did not rule on them in its
summary judgment order. Moreover, the district court recognized
the continued viability of the common law trespass claims when it
decertified the class and dismissed the case. On appeal, the
parties have not asked the Appellate Court to address these claims
and it declined to do so.
Each party to bear its own costs.
A full-text copy of the Ninth Circuit's July 14, 2020 Memorandum is
available at https://bit.ly/3dXAZkH from Leagle.com.
SARASOTA COUNTY, FL: Class in Abelson Suit Conditionally Certified
------------------------------------------------------------------
In the case, DESIREE ABELSON, Plaintiff, v. SARASOTA COUNTY,
FLORIDA, Defendant, Case No. 8:19-cv-3092-T-33SPF (M.D. Fla.),
Judge Virginia M. Hernandez Covington of the U.S. District Court
for the Middle District of Florida, Tampa Division, granted
Plaintiff Abelson's Renewed Motion seeking conditional
certification of an FLSA collective action.
In its prior order denying Abelson's initial motion for conditional
certification, the Court previously set forth both the pertinent
allegations in Abelson's amended complaint and the case law
controlling its decision as to whether to conditionally certify a
collective action under the Fair Labor Standards Act ("FLSA"). In
that Order, the Court determined that, while Abelson met her light
burden to establish a reasonable basis that other employees would
desire to opt into this action, her motion was deficient because
she had failed to demonstrate that the other employees were
similarly situated with regard to their job duties and pay
provisions.
As Abelson notes, the Court denied her first motion because the
affidavits she relied upon from other employees failed to state
whether those other employees were also classified as non-exempt
from overtime compensation while working for the County as a
Caseworker II or Caseworker III, whether they were paid
insufficient overtime compensation under the FLSA, and whether they
were similarly situated with respect to their job duties. Abelson
claims that her supplemental affidavits have now cured these
deficiencies and, accordingly, she once again seeks conditional
certification.
Defendant Sarasota County, Florida, has not filed a response in
opposition to the Renewed Motion. Accordingly, the Court considers
the Motion to be unopposed.
In support of her Renewed Motion, Abelson has attached affidavits
from two individuals: Carlos Burgos and Jennifer Cirieco. Both
Burgos and Cirieco were employed by the County for several years in
the positions of Caseworker II and Caseworker III. They claim that
their duties in these two positions were "nearly identical." Both
Burgos and Cirieco, like Abelson, state that while they worked as
Caseworkers, they were classified as non-exempt from overtime
compensation and worked overtime hours for which they were not
properly compensated.
On the basis of these affidavits, and in light of the County's lack
of opposition and the lenient standard utilized by courts at the
conditional-certification stage, Judge Covington holds that Abelson
has met her burden of showing a reasonable basis for her claim that
there are other employees who were similarly situated with regard
to their pay provisions and their job duties.
Although Abelson has produced only two affidavits, the Court is
mindful that the class of employees that Abelson seeks to
conditionally certify is narrow: all former and current employees
of Defendant who hold, or previously held, the positions of
Caseworker II and Caseworker III in the three years prior to the
filing of the complaint in the case.
What's more, the Court has granted conditional certification in
other cases that also involved fairly limited evidence of other
similarly situated employees who desired to opt-in. Similarly, to
the extent there might be slight variations between the job duties
of a person employed as a Caseworker II and another person employed
as a Caseworker III, variations in specific job duties, job
locations, working hours, or the availability of various defenses
are examples of factual issues that are not considered at the
notice stage. For these reasons, the Judge will grant Abelson's
Renewed Motion for conditional certification.
Abelson also seeks permission to send notice to the members of the
collective action and requests that the County provide her with the
information necessary to effect notice. Specifically, she seeks
the last known addresses of the putative class members and the
birth dates and partial Social Security numbers for any class
members whose mailed notice is returned. She also seeks permission
to send a "follow-up postcard" to any class members who have not
responded within 30 days and requests that the Court order the
County to post the notice at all of the County's worksites, in the
same areas where it is required to post FLSA notices.
As an initial matter, the Judge does not approve the sending of
follow-up or reminder communications to the potential opt-in
Plaintiffs. Abelson has not provided the Court with a proposed
notice to be sent to putative members of the collective action, nor
has she described how the notice would be sent, or how long
employees would have to opt in.
In these circumstances, the parties are directed to meet and confer
with respect to the provisions of the notice, how the County might
facilitate the sending of notices by providing the requested
information, and any other issues raised in the Order or
contemplated by the parties with respect to notice to the potential
members of the collective action. The Plaintiff's counsel is
directed to file a motion for approval of the proposed notice and
notice procedures within 14 days of the date of the Order, noting
any objections to the proposed notice which have not been resolved
by the parties. The Judge will toll the FLSA statute of
limitations during the 14-day period to avoid prejudice to the
rights of the putative collective action members.
Accordingly, Judge Covington granted the Plaintiff's Unopposed
Renewed Motion for Conditional Certification. The parties are
directed to meet and confer in accordance with the Order. After
consulting with the defense counsel, the Plaintiff's counsel will
file a motion for approval of the proposed notice and notice
procedures within 14 days of the date of the Order, noting any
objections to the proposed notice which have not been resolved by
the parties.
A full-text copy of the District Court's July 14, 2020 Order is
available at https://bit.ly/2TnDWBz from Leagle.com.
SENTRY CREDIT: Fondren Files Placeholder Class Certification Bid
----------------------------------------------------------------
In the class action lawsuit styled as REGINA FONDREN, Individually
and on Behalf of All Others Similarly Situated, vs. SENTRY CREDIT
INC., Case No. 2:20-cv-01409-NJ (E.D. Wisc.), the Plaintiff filed a
"placeholder" motion for class certification in order to prevent
against a "buy-off" attempt, a tactic class-action defendants
sometimes use to attempt to prevent a case from proceeding to a
decision on class certification by attempting to "moot" the named
plaintiff's claims by tendering the plaintiff individual (but not
classwide) relief.
The Plaintiff asks the Court for an order to certify class, appoint
herself as the class representative, and appoint her attorneys as
class counsel.
In Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016), the
Supreme Court held "an unaccepted settlement offer or offer of
judgment does not moot a plaintiff's case," and "a would-be class
representative with a live claim of her own must be accorded a fair
opportunity to show that certification is warranted." The Sixth
Circuit applied Campbell-Ewald in an unreported opinion in Family
Health Chiropractic, Inc. v. MD On-Line Sols., Inc., No. 15-3508,
2016 WL 384823, at (6th Cir. Feb. 2, 2016).
In Wilson v. Gordon, F.3d 934, 949-50 (6th Cir. 2016), the Sixth
Circuit held that, even where "[the parties [did] not dispute that
all eleven named plaintiffs' individual claims became moot before
the district court certified the class," the "picking-off"
exception applied and allowed the named plaintiffs with moot
individual claims to pursue class certification, which would
"relate back" to the filing of the complaint, applying Deposit
Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980). The Sixth
Circuit held this ruling was consistent with Campbell-Ewald, 136 S.
Ct. at 672, which refused to put defendants "in the driver's seat"
on class certification.[CC]
A copy of the Plaintiff’s Placeholder motion to certify class is
available from PacerMonitor.com at https://bit.ly/2RA5Byf at no
extra charge.[CC]
The Plaintiff is represented by:
John D. Blythin, Esq.
Mark A. Eldridge, Esq.
Jesse Fruchter, Esq.
Ben J. Slatky, Esq.
ADEMI & O'REILLY
3620 East Layton Avenue
Cudahy, WI 53110
Telephone: (414) 482-8000
Facsimile: (414) 482-8001
E-mail: jblythin@ademilaw.com
meldridge@ademilaw.com
jfruchter@ademilaw.com
bslatky@ademilaw.com
ST. LOUIS, MO: Compelled to Produce Remaining Docs in Cody Suit
---------------------------------------------------------------
In the case, JAMES CODY, et al., Plaintiffs, v. CITY OF ST. LOUIS,
Defendant, Case No. 4:17-CV-2707 AGF (E.D. Mo.), Judge Audrey F.
Fleissig of the U.S. District Court for the Eastern District of
Missouri, Eastern Division, (i) granted the Plaintiffs' motion to
compel discovery, and (ii) denied the Plaintiffs' motion for
sanctions.
The Plaintiffs filed the action on behalf of themselves and all
others similarly situated against the City of St. Louis, Missouri,
alleging various dangerous, unsanitary, and inhumane conditions
inside the St. Louis City Medium Security Institution ("MSI"). The
Plaintiffs, who were all held at MSI at various times in 2017,
claim that detainees at MSI are subjected to insufficient
ventilation and extreme heat; unsanitary and unhealthy conditions
including rodent and insect infestation, overflowing sewage, and
black mold; inadequate medical care; and overcrowding, inadequate
staffing, violence, and retaliation from staff. They seek monetary
damages, as well as declaratory and injunctive relief.
The Plaintiffs filed the action on Nov. 13, 2017. By late May
2018, they had served two requests for production of documents on
the City. When the City failed to respond to the first request for
production by the original deadline of June 1, 2018, the parties
agreed to an extension. At the same time, the City moved 400 boxes
of records from indoor storage to an outdoor storage container in
the parking lot of MSI. Jaime Lambing, MSI's Custodian of Records,
testified that she "lost intellectual control" of the records
during the transfer, which she testified meant that the prior
system of organization that allowed her to easily identify and
locate files was lost.
On Sept. 6, 2018, the Plaintiffs filed the first motion to compel
discovery and request for sanctions. A hearing was held before the
Court on Nov. 6, 2018. The following day, the Court granted the
Plaintiffs' motion in part and denied it in part. The Plaintiffs'
request for disciplinary records of MSI employees was granted; the
parties were instructed to collaborate on narrowing the scope of
several of the Plaintiffs' other requests for records; and the
Plaintiffs' request for sanctions was denied.
Since the issuing of the Court's Order on Nov. 7, 2018, discovery
has been ongoing and the deadline for the close of discovery has
been extended several times, with the current deadline set for Aug.
25, 2020. During this time, the City has produced a variety of
records which the Plaintiffs have compiled into a table. The table
also lists documents which the Plaintiffs contend are missing and
which they request that the Court compels the City to produce. The
missing document include, for example, Department of Health
inspections, weekly dorm inspection sheets, Department of Public
Safety Cleanliness and Maintenance Reports, Inspection and Safety
Rounds reports, Environmental and Health Safety Round reports, Duty
Officer reports, Community Sanitation Quarterly Inspections, and
temperature reports.
The Plaintiffs note that the City has produced some but not all of
these types of documents. They argue that it is not unduly
burdensome for the City to be required to timely search for and
produce the remaining documents. As to any documents that are not
produced, the Plaintiffs ask the Court to order the City to
identify in writing why the document cannot be produced as follows:
(1) If a document was created but subsequently destroyed, the date
and reason for the destruction of the document; (2) If the document
was created but is now missing, the efforts taken to locate the
missing document; (3) If the document was never created, or there
is another unidentified reason for being unable to produce the
document, a description of that reason.
Further, the Plaintiffs argue that City's conduct in discovery
justifies sanctions. They assert that the City has refused to
comply with its obligations and has produced inconsistent
information about the status of many documents. They argue that
this behavior has caused them to suffer prejudice and that,
therefore, sanctions are appropriate. The Plaintiffs requests a
variety of sanctions, ranging from the grant of an adverse
inference at trial for documents not produced to the appointment of
a Special Master to oversee discovery. For all options, the
Plaintiff requests that the Court awards him attorneys' fees and
costs incurred in connection with this motion pursuant to Rule
37(a)(5)(A).
In response, the City asserts that the Court's decision on the
Plaintiffs' first motion to compel resolved all discovery issues.
The City interprets the Court's decision as largely denying the
Plaintiff's requests, except for those items specified in the
Court's Nov. 7, 2018 Order. The City argues that it has already
produced the specified documents. It further argues that it has
complied with its discovery obligations by producing thousands of
pages of documents over the past two years and that the current
global COVID-19 pandemic has slowed the pace of discovery. In
short, the City argues that it has acted in good faith and that the
Plaintiffs' motion should be denied.
Upon careful consideration of the parties' arguments in light of
the proportionality concerns set forth in Federal Rule of Civil
Procedure 26, Judge Fleissig granted the Plaintiffs' motion to
compel and denied their motion for sanctions. She finds, and the
City does not contest, that the documents sought by the Plaintiffs
are relevant to proving their claims. The Court's Nov. 7, 2018
Order simply did not address the current discovery dispute; it has
never ruled that the Plaintiff is unable to discover the material
at issue in the motion.
Any burden in searching for the missing documents appears to be
due, at least in part, to the City's admitted failure to maintain
the organizational structure of its files when it chose to move
these files after litigation began. Further, the City's contention
that it is producing the documents, but that production is
laborious, is not a convincing reason to deny the Plaintiffs'
motion. Although the pace of discovery in the case has been
painfully slow, the City provides no date by which they allege the
documents will be produced in their entirety. The Plaintiffs'
request for such a deadline is reasonable.
The Judge thus imposed a deadline of 45 days from the date of her
Memorandum and Order for the City to produce the documents at
issue, and if not produced, to provide an affidavit or sworn
declaration by a person with knowledge as to why the documents
could not be produced, including: (1) If a document was created but
subsequently destroyed, the date and reason for the destruction of
the document; (2) If the document was created but is now missing,
the efforts taken to locate the missing document; (3) If the
document was never created, or there is another unidentified reason
for being unable to produce the document, a description of that
reason.
The Judge denied the Plaintiffs' motion for sanctions and
attorneys' fees at this time, without prejudice to reconsidering in
the event of the City's failure to comply with her Memorandum and
Order and depending on the extent of any deficiency.
A full-text copy of the District Court's July 17, 2020 Memorandum &
Order is available at https://bit.ly/37IoZm6 from Leagle.com.
STAR CAREER: Class Certification Denial in Polanco Suit Upheld
--------------------------------------------------------------
In the appellate case, SHIRLEY POLANCO, individually and on behalf
of all others similarly situated, Plaintiff-Appellant, v. STAR
CAREER ACADEMY, SC ACADEMY HOLDINGS, INC. and SC ACADEMY, INC.,
Defendants-Respondents, Case No. A-5391-18T1 (N.J. Super. App.
Div.), a three judge panel of the Superior Court of New Jersey,
Appellate Division, affirmed the trial court's order denying class
certification.
The Defendants are owners of for-profit schools, including the
institution at issue, Star Career Academy, that trains surgical
technicians ("ST"). The Defendants' mission is to provide
performance-based occupational training to prepare students for
entry-level employment" in various fields, including allied health
fields.
The Plaintiff enrolled in Defendants' ST program in July 2011. Her
tuition was $18,213. While enrolled in the program, the Plaintiff
asked the director of the ST program whether the newly passed ST
law would affect her ability to gain employment as a ST. The
director assured her that graduating from the program would qualify
her under the ST law, and the director of externships for the
Defendants' Clifton campus also told her that their ST program was
accredited. Other students also questioned admissions officers as
to the effect of the ST law, and those officers discussed the
accreditation issues with their subordinates but instructed them to
sell the program as best they could.
The Plaintiff filed a class action complaint naming Star and
alleging that Star violated the New Jersey Consumer Fraud Act by
misrepresenting information about the accreditation of its ST
program in connection with the ST law. The Plaintiff's proposed
class consisted of all individuals who were enrolled in the ST
program for surgical technician training to take place in the State
of New Jersey as of June 29, 2011 and thereafter.
Over Star's objection, the court certified that class and appointed
the Plaintiff the class representative. It also denied Star's
subsequent motion to decertify the class. The jury returned a
$2.969 million verdict in favor of the class. In accordance with
the CFA, the court trebled the damages and entered final judgment,
plus interest, in the amount of $9,091,941.35. Pursuant to the
Plaintiff's motion for attorneys' fees and costs, the court awarded
the class $1.7 million in attorneys' fees.
The case returns to the Court on leave granted and after remand
proceedings directed by its previous opinion in which it reversed
the trial court's class certification ruling. It also reversed the
jury's verdict and attendant attorneys' fee award.
In that decision, the Court concluded that the trial court
improperly granted class certification because common issues of
fact did not predominate over the specific issues relating to the
individuals comprising the proposed class. In this regard, it
stated that the individualized factual inquiries surrounding the
Defendants' misrepresentations and the nexus between those
misrepresentations and omissions and the class members'
ascertainable loss compels decertification. It also determined
that although the court divided the class into sub-groups to
analyze the total paid by the class in relation to the differing
circumstances of certain class members, that division demonstrated
the significant individualized issues related to the nexus between
the Defendants' misrepresentations and the class members' damages.
Despite its decision to decertify the class, the Court stated that
its decision should not be interpreted to conclude that a class is
not an appropriate vehicle to address the Defendants' purported
misrepresentations and omissions for those who have paid tuition
fees or other ascertainable losses. To that end, it noted that
such a class action may further the goals of judicial economy,
cost-effectiveness, convenience, and consistent treatment of class
members, but that the proposed class did not satisfy the relevant
Rules governing class actions. The Plaintiff did not seek Supreme
Court review of that decision.
On remand, the Plaintiff again moved for class certification, and
after hearing oral arguments, the court denied her motion in a June
7, 2019 order. On appeal, the Plaintiff raises the following
argument: (i) the trial court erroneously concluded that individual
damages evidence was required to establish liability-only and
erroneously declined to certify a liability-only class action on
the basis that liability may be established on a classwide basis:
(i) Star's nondisclosure and unconscionable practice, and (ii)
materiality.
The Appellate Court concludes that the Plaintiff's liability only
class fails to satisfy the predominance element of Rule
4:32-1(b)(3). Like the Plaintiff's earlier proposed class, the CFA
allegations in the proposed liability only class still require
numerous individualized inquiries rendering class certification
improper. Her claims primarily center on the Defendants' failure
to disclose accurately its accreditation status and the attendant
ascertainable loss allegedly caused by way of tuition expenditures
and diminished job opportunities. Even were the Appellate Court to
assume a wrongful act occurred, however, the proposed class cannot
"speak with one voice" on those issues.
For similar reasons, the Appellate Court concludes that the trial
court did not abuse its discretion when it determined the proposed
liability only class failed to meet Rule 4:32-1(b)(3)'s superiority
requirement. That requirement necessarily implies a comparison
with alternative procedures. A class action must be better than,
not merely as good as, other methods of adjudication.
Even were it to agree that the Defendants' alleged CFA violation
occurred and could be addressed on a class-wide basis, for the
reasons previously expressed, the Appellate Court would still need
to conduct in excess of 100 separate mini-trials addressing the
individualized damages claims. These proceedings would not be like
a forensic auditing of the claims, but rather a series of
adjudicatory proceedings in which the proposed class member would
be required to establish causation and ascertainable loss. The
court clearly considered the difficulties in conducting "hundreds
of mini-trials" to address the differing claims and rejected the
Plaintiff's proposal, a result the Panel determine was not an abuse
of discretion. To the extent it has not addressed any of the
Plaintiff's arguments it is because it has concluded they lack
sufficient merit to warrant discussion in a written opinion.
In light of the foregoing, the trial court's order denying class
certification is affirmed as the Appellate Court concluded that the
trial court did not abuse its discretion when it determined common
questions of law or fact failed to predominate over questions
affecting individual members and that a class action was not
superior to other available methods for the fair and efficient
adjudication of the controversy as required by Rule 4:32-1(b)(3).
A full-text copy of the Appellate Court's July 17, 2020 Opinion is
available at https://bit.ly/37G67nu from Leagle.com.
STATE FARM: Certification of Ky. Homeowners Class in Hicks Upheld
-----------------------------------------------------------------
In the case, SUSAN HICKS; DON WILLIAMS, Plaintiffs-Appellees, v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant-Appellant, Case No.
19-5719 (6th Cir.), the U.S. Court of Appeals for the Sixth Circuit
ruled 2-1 to affirm the district court's ruling certifying a class
of Kentucky homeowners, and to remand for further proceedings.
State Farm and the named Plaintiffs Susan Hicks and Don Williams
entered into replacement-cost homeowner insurance contracts. State
Farm's standard-form policy provides a two-step settlement process,
obligating the insurer to pay for property damage. First, before
the insured makes any repairs, State Farm must pay the actual cash
value at the time of the loss of the damaged part of the property,
up to the policy's liability limit, not to exceed the cost to
repair or replace the damaged part of the property. The "actual
cash value" (ACV") is calculated under the policy by estimating the
amount it will cost to repair or replace damaged property and
subtracting depreciation and the deductible.
During the class period, State Farm determined the ACV first by
sending an adjuster to inspect the damage and estimate the
reconstruction cost. Using Xactimate, software State Farm has
exclusively used since 1990, State Farm then input the adjuster's
reconstruction cost estimate -- the "replacement cost value" or RCV
-- and depreciated costs for both materials and labor. Xactimate
produced an ACV calculation (RCV minus material and labor cost
depreciation), subtracted the insured's deductible, and then State
Farm paid that Xactimate estimate to the insured.
Insureds did not have to spend the ACV payment or make repairs on
their property; if they made no repairs or made repairs for less
than the ACV payment, they did not have to return any of the ACV
payment to State Farm. If an insured made repairs and incurred
costs exceeding the ACV payment, however, the individual could seek
further payment from State Farm. In the second stage, the insured
could seek repayment of replacement cost benefits based on
documentation showing the repairs made and the costs incurred.
Fires destroyed the Plaintiffs' homes in 2014. State Farm accepted
coverage and issued ACV payments to the Plaintiffs. Using
Xactimate, State Farm estimated Williams's RCV as $206,068.88,
including material and labor costs; subtracted Williams's $500
deductible, $40,627.34 for depreciation of materials and labor, and
$8,125.54 for general contractor overhead & profit on recoverable
and non-recoverable depreciation; and issued a $156,316.00 ACV
payment. Williams chose not to rebuild his home and instead
purchased a new home for $75,000. He did not need to return any of
his ACV payment, and he recovered none of the depreciated costs.
State Farm used Xactimate to estimate Hicks's RCV as $273,306.97,
including costs for materials and labor; subtracted Hicks's $500
deductible, $60,751.32 in depreciation of materials and labor, and
$12,150.68 for general contractor overhead & profit on recoverable
and non-recoverable depreciation; and issued Hicks a $199,904.97
ACV payment. Hicks repaired her home and later recovered the
withheld depreciation.
The Plaintiffs filed the putative class action, alleging that their
ACV payments were miscalculated because State Farm, in violation of
Kentucky law, included labor costs in its depreciation deduction.
State Farm moved to dismiss the Plaintiffs' contract claims, which
the district court denied, concluding that State Farm could only
depreciate costs for materials, not labor, under Kentucky law.
State Farm filed its first appeal. The Sixth Circuit affirmed,
holding that in an insurance contract that incorporates Kentucky's
replacement cost minus depreciation formula, the insurer cannot
depreciate costs of labor when determining ACV payments.
On July 25, 2015, State Farm changed its practice to conform to the
district court's decision. It also created a program to send
refunds to those who had received ACV payments between March 25,
2015 and July 25, 2015, the gap between the district court's
decision on labor depreciation and the date State Farm stopped
deducting labor depreciation costs.
After Xactimate revised the estimates using the updated formula
(RCV — material costs depreciation), State Farm issued payments
to the insureds to refund the previously depreciated labor costs.
No one at State Farm questioned the accuracy of the disbursed
payments, and MacMillan testified that he was pleased by the
program's efficiency. State Farm records show that it took an
average of "15 minutes" to complete each review. Most
policyholders refunded by the program received payments of less
than $1,000, and many received payments for amounts less than the
fee for filing suit in state court.
The district court held a hearing on the Plaintiffs' pending motion
for class certification in which the Plaintiffs proposed
calculating damages with the following formula: Damages = (withheld
Labor Depreciation Amount Not resulting in Toral Exceedng Policy
Limits - Recovered Labor Depreciation) + Prejudgment Interest. The
inputs used in this damages formula, save "prejudgment interest,"
are the same inputs State Farm used (by unchecking a box in
Xactimate) to refund insureds for depreciated labor costs during
the gap period.
The district court granted the motion for class certification,
amending the class definition as follows: All persons and entities
that received actual cash value payments, directly or indirectly,
from State Farm Fire and Casualty Company (State Farm) for loss or
damage to a dwelling or other structure located in the Commonwealth
of Kentucky, such payments arising from events that occurred from
Feb. 28, 2013 through July 25, 2015, where the cost of labor was
depreciated.
In the second appeal, State Farm challenges the certification
order. State Farm argues that the Plaintiffs cannot satisfy Rule
23(a)'s commonality requirement because the common liability
question has already been answered in the Plaintiffs' favor. It
likewise claims that the putative class cannot meet Rule 23(b)(3)'s
predominance and superiority requirements because individualized
damages inquiries will overwhelm the common liability question.
State Farm also asserts that the Plaintiffs' class is not
ascertainable. Finally, it argues that the district court abused
its discretion by failing to consider striking the Plaintiffs'
expert before it certified the class.
The Sixth Circuit finds that the district court did not abuse its
discretion in finding that the Plaintiffs satisfied Rule 23(a)'s
commonality requirement. The Plaintiffs' claims share a common
legal question central to the validity of each of the putative
class member's claims: whether State Farm breached the Plaintiffs'
standard-form contracts by deducting labor depreciation from their
ACV payments. No individualized proof is necessary to resolve this
liability question on a classwide basis because State Farm does not
dispute that until July 2015, it depreciated labor costs when
calculating ACVs.
Next, the Sixth Circuit finds that the district court did not abuse
its discretion in concluding that a common question predominates
over individualized issues. Ultimately, whether some Plaintiffs
are unable to prove damages because they eventually recouped the
withheld depreciation through an RCV payment is a merits question,
and the district court has the power to amend the class definition
at any time before judgment. In any case, the Plaintiffs'
complaint and damages formula include the claim that even those
class members who recovered depreciated labor costs are eligible
for damages in the form of prejudgment interest.
The Sixth Circuit also cannot conclude that the district court
abused its discretion in finding class litigation to be the
superior method of adjudication. The district court appropriately
concluded that superiority is satisfied because a threshold common
issue predominates (i.e. whether State Farm improperly depreciated
labor costs from ACV payments) and because the Plaintiffs' ability
to obtain relief through individual damages suits is likely not
economically feasible. As the court correctly observed, the
payments State Farm made to Kentucky homeowners for depreciation
costs through its 2015 refund program were generally less than
$1,000 and a "significant portion" of the refunds were for amounts
"less than the filing fee for initiating an action in state
court."
For its 2015 refund program, State Farm applied objective standards
through its long-employed Xactimate program and readily ascertained
the number of claimants to be repaid labor depreciation. Those
same objective standards may also serve as inputs for the
Plaintiffs' proposed class definition. State Farm had all the
necessary information to identify the Kentucky claims to be
refunded during the gap period, to make the simple changes to the
parameters in Xactimate to calculate the ACV reimbursements for
those 1,854 claimants, and to assure that labor depreciation would
not be subtracted from replacement cost estimates in the future.
The class is ascertainable by reference to the same objective
criteria.
State Farm further argues that the district court abused its
discretion by declining to analyze the Defendant's Motion to Strike
Saul Solomon's Opinions and Testimony before ruling on the
Plaintiffs' Motion for Class Certification. State Farm's motion to
strike included a Daubert challenge.
The Sixth Circuit holds that the district court did not abuse its
discretion in declining to rule on State Farm's Motion to Strike
before deciding whether to certify the Plaintiffs' proposed class.
The case does not present an opportunity to do so because the
district court did not rely on Solomon's expert opinion in ruling
on class certification. To be sure, the court cited to the expert's
proposed formula for calculating damages, but the court did not
rely on Solomon's testimony to determine that this formula is
consistent with the Plaintiffs' theory of liability. Instead,
other information in the record supports that conclusion and
informs the formula for calculating damages. Specifically, State
Farm's own refund program supports the district court's conclusion
that the Plaintiffs' proposed formula for calculating damages
satisfies Rule 23's requirements. State Farm's refund program used
the same model that the Plaintiffs propose for calculating
damages.
For the foregoing reasons, Judge Jane B. Stranch, writing for the
Sixth Circuit, affirmed the district court's grant of class
certification, and remanded for further proceedings.
A full-text copy of the Sixth Circuit's July 10, 2020 Opinion is
available at https://bit.ly/3okU5Gk from Leagle.com.
ARGUED: Jacob L. Kahn -- jkahn@rshc-law.com -- RILEY SAFER HOLMES &
CANCILA LLP, Chicago, Illinois, for Appellant.
Erik D. Peterson -- edp@austinmehr.com -- MEHR, FAIRBANKS, &
PETERSON, Lexington, Kentucky, for Appellees.
ON BRIEF: Jacob L. Kahn, Joseph A. Cancila, Jr. --
jcancila@rshc-law.com -- RILEY SAFER HOLMES & CANCILA LLP, Chicago,
Illinois, David Klapheke -- dklapheke@bsg-law.com -- BOEHL STOPHER
& GRAVES LLP, Louisville, Kentucky, for Appellant.
Erik D. Peterson, M. Austin Mehr -- amehr@austinmehr.com -- Philip
G. Fairbanks -- pgf@austinmehr.com -- MEHR, FAIRBANKS, & PETERSON,
Lexington, Kentucky, for Appellees.
Wystan M. Ackerman, ROBINSON & COLE LLP, Hartford, Connecticut, J.
Brandon McWherter, McWHERTER SCOTT BOBBITT PLC, Franklin,
Tennessee, for Amici Curiae.
TACTILE SYSTEMS: Hagens Berman Reminds of Nov. 30 Motion Deadline
-----------------------------------------------------------------
Hagens Berman urges Tactile Systems Technology (NASDAQ: TCMD)
investors to submit their losses now. The firm has filed a
securities fraud class action and certain investors may have
valuable claims.
Class Period: May 7, 2018 - June 8, 2020
Lead Plaintiff Deadline: Nov. 30, 2020
Visit: www.hbsslaw.com/investor-fraud/TCMD
Contact An Attorney Now: TCMD@hbsslaw.com
844-916-0895
Hagens Berman's Tactile Securities Litigation:
Throughout the Class Period, Defendants allegedly misrepresented
and concealed that: (1) while Tactile publicly touted a $4 plus
billion or $5 plus billion market opportunity, in truth, the total
addressable market for Tactile's medical devices was materially
smaller; (2) to induce sales growth and share gains, Tactile
engaged in illegal sales and marketing activities; and (3)
Tactile's revenues were in part the product of unlawful conduct and
thus unsustainable.
The truth began to emerge on Mar. 20, 2019, when an amended federal
Qui Tam complaint filed against Tactile was unsealed, which
contained detailed allegations of illegal sales practices on the
part of Tactile, causing the Company to submit fraudulent claims to
Medicare and the VA.
Then, on Feb. 21, 2020, the court issued an order in the Qui Tam
Action, denying Tactile's motion to dismiss in its entirety.
Finally, on June 8, 2020, research firm OSS Research published a
scathing report about the Company, accusing Tactile of using a
"daisy-chaining" kickback scheme that has resulted in rampant
overprescribing and rapid market share gains at the expense of
patients, insurers and the public."
All told, these disclosures caused Tactile securities to decline
precipitously, wiping out significant shareholder value.
If you are a TCMD investor, click here to discuss your legal rights
with Hagens Berman.
"We're focused on investors' losses and proving Tactile deceived
investors by engaging in illegal marketing schemes to induce sales
growth," said Reed Kathrein, the Hagens Berman partner leading the
investigation.
Whistleblowers: Persons with non-public information regarding
Tactile should consider their options to help in the investigation
or take advantage of the SEC Whistleblower program. Under the new
program, whistleblowers who provide original information may
receive rewards totaling up to 30 percent of any successful
recovery made by the SEC. For more information, call Reed Kathrein
at 844-916-0895 or email TCMD@hbsslaw.com.
About Hagens Berman
Hagens Berman is a national law firm with nine offices in eight
cities around the country and eighty attorneys. The firm represents
investors, whistleblowers, workers and consumers in complex
litigation. More about the firm and its successes is located at
hbsslaw.com. [GN]
TEXAS: Court Awards $12.45 Million in Counsel Fees in M.D. Suit
---------------------------------------------------------------
In the case, M.D.; bnf STUKENBERG, et al, Plaintiffs, v. GREG
ABBOTT, et al, Defendants, Civil Action No. 2:11-CV-00084 (S.D.
Tex.), Judge Janis Graham Jack of the U.S. District Court for the
Southern District of Texas, Corpus Christi Division, granted in
part the Plaintiffs' first application for attorneys' fees,
expenses, and costs for the time period through Oct. 11, 2019.
The procedural history of the nine-year litigation is adequately
described in the Court's Dec. 17, 2015 Memorandum Opinion and
Verdict, January 2018 Order, and November 2018 Order. Subsequent
to the November 2018 Order, the Defendants appealed to the Fifth
Circuit. On July 8, 2019, the Fifth Circuit remanded the case for
implementation of the order. On Oct. 11, 2019, the Plaintiffs
filed a motion requesting an award for attorneys' fees, expenses,
and costs. On Oct. 31, 2019, the Defendants filed a motion
objecting to the Plaintiffs' Bill of Costs, and on Nov. 1, 2019,
the Defendants filed their response to the Plaintiffs' motion for
attorneys' fees. On Dec. 9, 2019, the Plaintiffs filed their reply
in support of their application for attorneys' fees and their
response to the Defendants' objections to the Bill of Costs. On
Jan. 13, 2020, the Defendants filed their sur-reply to the
Plaintiffs' responses.
There is no dispute that the Plaintiffs are the prevailing party
since they secured the core relief sought in the case which
includes a finding that the State of Texas violated the U.S.
Constitutional rights of the Plaintiffs and an order requiring the
State to remedy the violations. The Fifth Circuit subsequently
affirmed large and significant parts of the order and remanded for
theCourt to implement it. Therefore, the Plaintiffs are entitled
to an award for reasonable fees pursuant to 42 U.S.C. Section
1988.
The Defendants, however, dispute the degree by which the Plaintiffs
prevailed in the case, arguing that Johnson Factor #8 ("The Amount
Involved and the Results Obtained") requires an across-the-board
75% reduction to any attorneys' fee award given to the Plaintiffs.
Judge Jack finds that the Plaintiffs are indeed the prevailing
party and have received the main and core remedy sought, which is
in essence the systemic and ongoing reform of the Permanent
Managing Conservatorship class foster care system, in such a
timely, complex class action civil-rights case such that the
Plaintiffs' claims are too intertwined to differentiate for
attorneys' fees award consideration. Indeed, because the lawsuit,
and all the numerous individual remedies that the Plaintiffs
sought, had an overarching goal of giving relief to the state's
Permanent Managing Conservatorship class foster children, the Judge
concludes that the case involved a common core of facts and are
based on related constitutional legal theories, making it difficult
to divide the hours spent on a claim-by-claim basis. Given this,
no separation of fees per claim is necessary.
After determining the prevailing party, the Judge must utilize the
following two-step process in determining the fee award to be
granted to the prevailing the Plaintiffs: (1) he must first
calculate the lodestar amount, and then (2) he must consider
whether to enhance or decrease the amount considering the Johnson
v. Ga. Highway Express, Inc. factors.
The Plaintiffs initially requested the following fees, expenses,
and costs:
Children's Rights [$14,601,053.10 (Total Request)]:
$14,096,744.11 (Attys' Fees), $376,440.66 (Expenses),
$127,868.36 (Costs)
A Better Childhood [$702,340.16 (Total Request)]:
$683,896.11 (Attys' Fees), $18,444.05 (Expenses), $0 (Costs)
Yetter Coleman [$4,678,517.69 (Total Request)]:
$4,505,725.25 (Attys' Fees), $109,413.32 (Expenses),
$63,379.12 (Costs)
Haynes & Boone [$1,528,550 (Total Request)]:
$1,528,550 (Attys' Fees), $0 (Expenses), $0 (Costs)
In their reply, the Defendants do not dispute that the Plaintiffs
are to be awarded the following amounts:
Children's Rights [$2,828,764.80 (Total Request)]:
$2,668,283.24 (Attys' Fees), $97,728.38 (Expenses),
$62,753.18 (Costs)
A Better Childhood [$199,039.40 (Total Request)]:
$199,039.40 (Attys' Fees), $0 (Expenses), $0 (Costs)
Yetter Coleman [$1,203,649.44 (Total Request)]:
$1,142,323.98 (Attys' Fees), $45,408.44 (Expenses),
$15,917.02 (Costs)
Haynes & Boone [$289,749.75 (Total Request)]:
$289,749.75 (Attys' Fees), $0 (Expenses), $0 (Costs)
After receiving the Defendants' objections, the Plaintiffs revised
their request to the following amounts:
Children's Rights [$12,775,919.40 (Total Request)]:
$12,362,233.74 (Attys' Fees), $308,575.56 (Expenses),
$105,110.09 (Costs)
A Better Childhood [$647,699.77 (Total Request)]:
$632,900.11 (Attys' Fees), $14,799.66 (Expenses), $0 (Costs)
Yetter Coleman [$4,551,867.84 (Total Request)]:
$4,406,667.25 (Attys' Fees), $109,413.32 (Expenses),
$35,787.27 (Costs)
Haynes & Boone [$1,421,437.50 (Total Request)]:
$1,421,437.50 (Attys' Fees), $0 (Expenses), $0 (Costs).
The Judge now turns to the remaining unresolved objections by the
Defendants. Bearing in mind that the Plaintiffs have reduced their
fees based on some of the Defendants' objections, he addresses, by
individual entity, the Defendants' remaining objections.
Judge Jack awards:
(i) Children's Rights $5,960,408.07 for attorneys' fees,
$225,755.45 for expenses and $86,388.53 in costs;
(ii) A Better Childhood $468,514.01 for attorneys' fees,
$10,541.90 for expenses and $0 for costs as it does not
request any cost reimbursements;
(iii) Haynes & Boone $1,205,678.68 for attorneys' fees, and
$0 expenses and costs reimbursements as it does not request
any; and
(iv) Yetter Coleman $4,399,830.25 for attorneys' fees,
$68,009.92 for expenses and $25,842.79 for costs.
For the foregoing reasons, Judge Jack holds that the Plaintiffs are
entitled to recover attorneys' fees, expenses, and litigation
costs. The Judge granted in part the Plaintiffs' first application
for the time period through Oct. 11, 2019. The Judge awarded the
Plaintiffs an overall award of $12,450,969.60.
In accordance with his Order, the Judge entered the following
judgments against the Defendants. The Judge entered judgment in
favor of (i) Children's Rights in the amount of $6,272,552.05; (ii)
A Better Childhood in the amount of $479,055.91; (iii) Haynes &
Boone in the amount of $1,205,678.68; and (iv) Yetter Coleman in
the amount of $4,493,682.96. These judgments are subject to a
post-judgment interest rate of 0.15% per annum, compounded
annually, until paid. These are final judgments for the
Plaintiffs' first application.
The Defendants will pay the Plaintiffs' Counsel these amounts
without delay.
A full-text copy of the District Court's July 14, 2020 Opinion is
available at https://bit.ly/3dTB6xC from Leagle.com.
U.S. BANK: Faces Hood Class Suit Over Data Breach
-------------------------------------------------
KIMBERLY HOOD, PATRICIA LADD, and SHARON FELTNER individually and
on behalf of all others similarly situated, v. U.S. BANK NATIONAL
ASSOCIATION and U.S. BANCORP, Case No. 0:20-cv-02101-DSD-KMM (D.
Minn., Oct. 2, 2020), is a class action suit against the Defendants
for their failure to secure and safeguard the confidential,
personally identifiable information of thousands of consumers --
including names, account numbers, Social Security numbers, driver's
license numbers, and dates of birth ("PII").
The Plaintiff contends that the Defendants did not live up to that
promise. On July 30, 2020, and due to the Defendants' wholly
inadequate security and failure to comply with federal and state
data privacy standards, a computer server containing an unknown
quantity of business and/or consumer PII was physically taken from
one of Defendants' corporate offices (Data Breach).
According to the complaint, due to the Defendants' carelessness and
inadequate security, the Plaintiffs and Class members have suffered
irreparable harm and are subject to an increased risk of identity
theft. The Plaintiffs' and Class members' PII has been compromised
and they must now undertake additional security measures to
minimize the risk of identity theft.
The Defendants provide banking, investment, mortgage, trust, and
payment services products to individuals, businesses, governmental
entities, and other financial institutions. As of December 31,
2019, U.S. Bank was the fifth-largest bank in the country, with
more than 70,000 employees and $495 billion in assets.[BN]
The Plaintiffs are represented by:
Karen Hanson Riebel, Esq.
Kate M. Baxter-Kauf, Esq.
Maureen Kane Berg, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Ave. South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: khriebel@locklaw.com
kmbaxter-kauf@locklaw.com
mkberg@locklaw.com
- and -
Gayle M. Blatt, Esq.
Jeremy Robinson, Esq.
P. Camille Guerra, Esq.
James M. Davis, Esq.
CASEY GERRY SCHENK FRANCAVILLA
BLATT & PENFIELD, LLP
110 Laurel Street
San Diego, CA 92101
Telephone: (619) 238-1811
Facsimile: (619) 544-9232
E-mail: gmb@cglaw.com
jrobinson@cglaw.com
camille@cglaw.com
jdavis@cglaw.com
U.S. SPECIALTY: Court Stays Discovery in Egg and I Class Suit
-------------------------------------------------------------
Magistrate Judge Daniel J. Albregts of the U.S. District Court for
the District of Nevada stayed discovery in the case, EGG AND I,
LLC, a Nevada limited liability company; EGG WORKS, LLC, a Nevada
limited liability company; EGG WORKS 2, LLC, a Nevada limited
liability company; EGG WORKS 3, LLC, a Nevada limited liability
company; EGG WORKS 4, LLC, a Nevada limited liability company; EGG
WORKS 5, LLC, a Nevada limited liability company; EGG WORKS 6, LLC,
a Nevada limited liability company; and EW COMMISSARY, LLC, a
Nevada limited liability company, Plaintiffs, v. U.S. SPECIALTY
INSURANCE COMPANY, a Texas corporation; PROFESSIONAL INDEMNITY
AGENCY, INC. dba TOKIO MARINE, HCC-SPECIALTY GROUP, a New Jersey
corporation, Defendants, Case No. 2:20-cv-00747-KJD-DJA (D. Nev.),
pending resolution of the Motion to Dismiss.
The Parties, by and through their attorneys of record, stipulated
to stay discovery in the action.
The Plaintiffs are a group of restaurants in Clark County, Nevada.
USSIC insured the Plaintiffs under a Restaurant Recovery Insurance
Policy, policy no. U719-860374, in force from Sept. 1, 2019 through
Sept. 1, 2020. Between March and April 2020, the Governor of
Nevada issued Declaration of Emergency Directive 003 and guidance
in response to the health crisis caused by COVID-19.
To comply with the Directives, the Plaintiffs suspended business
operations at their restaurants, causing them to suffer losses.
The Plaintiffs claim that the Defendants refused to pay for the
losses and expenses under the Policy. The Defendants claim that
there is no coverage under the Policy for the claimed losses and
expenses.
On April 24, 2020, the Plaintiffs filed their Complaint on behalf
of themselves and a putative class of persons and entities whose
claims for losses under a Restaurant Recovery Policy were denied by
the Defendants. On May 26, 2020, the Defendants filed their Motion
to Dismiss, to which the Plaintiffs replied on June 30, 2020. The
Defendants' Reply brief was due on July 28, 2020.
The Parties both request a stay of discovery pending resolution of
the Motion to Dismiss. They recognize that discovery in the
putative class action will be substantial, costly, and
time-consuming. In the case, there are eight named Plaintiffs and
an unknown amount of the putative class members. Discovery related
to the named Plaintiffs alone is expected to require substantial
attorney time and cost. Typically, class discovery can increase
the discovery time and costs. Additionally, requiring discovery to
proceed while a potentially dispositive motion is pending increases
the burden on the Court system and its scarce resources.
Federal Rule of Civil Procedure 1 strongly supports granting a stay
of discovery to preserve the resources of the parties and the
Court. The stay furthers the goal of efficiency for the court and
litigants.
In the event the Court grants the Stipulation, the Parties will
hold a Federal Rule of Procedure 26(f) conference and submit a
proposed discovery plan and scheduling order within 45 days after
the Order on the Motion to Dismiss is entered.
Magistrate Judge Albregts granted the Parties' Stipulation and
stayed discovery pending resolution of the Motion to Dismiss.
A full-text copy of the District Court's July 17, 2020 Order is
available at https://bit.ly/3ktG9Hr from Leagle.com.
ROBERT S. LARSEN, ESQ. -- rlarsen@grsm.com -- WING YAN WONG, ESQ.
-- wwong@grsm.com -- GORDON REES SCULLY MANSUKHANI, LLP, Las Vegas,
Nevada, MATTHEW S. FOY, ESQ. -- mfoy@grsm.com -- Admitted Pro Hac
Vice, JENNIFER WAHLGREN, ESQ. -- jwahlgren@grsm.com -- Admitted Pro
Hac Vice, GORDON REES SCULLY MANSUKHANI, LLP, San Francisco, CA,
Attorneys for Defendants.
UBER TECH: Can Partly Compel Arbitration in Nicholas Wage Suit
--------------------------------------------------------------
In the case, JERICHO NICHOLAS, et al., Plaintiffs, v. UBER
TECHNOLOGIES, INC., Defendant, Case No. 19-cv-08228-PJH (N.D.
Cal.), Judge Phyllis J. Hamilton of the U.S. District Court for the
Northern District of California (i) granted in part and denied in
part Uber's motion to compel arbitration, and (ii) granted its
motion to dismiss with leave to amend.
The Defendant develops and maintains a technology platform that
connects riders with ride-share drivers through a mobile-device
application. The Plaintiffs comprise 48 persons seeking to certify
a class on behalf of themselves and all individuals working or
having worked as 'ride-share drivers' for the Defendant within
California from April 2018 to present and who opted out of an
applicable arbitration provision.
At core, the Plaintiffs allege that, since the California Supreme
Court's decision in Dynamex Operations West v. Superior Court, Cal.
5th 903 (2018) and the California state legislature's passage of
Labor Code Section 2750.3, the Defendant has unlawfully classified
them as "independent contractors" rather than "employees."
Based upon that alleged practice of misclassification, all the
Plaintiffs assert claims for the following: (i) Violation of
California Labor Code Sections 201-04, 218.5, and 218.6 premised
upon the Defendant's failure to pay timely earned wages during
employment and upon separation of employment; (ii) Violation of
Sections 1182.12, 1194, 1194.2, 1197, and Industrial Welfare
Commission Wage Order No. 4-2001 Section 3(A) premised upon the
Defendant's failure to pay minimum wages; (iii) Violation of
Section 1174.5 and Wage Order No. 4 Section 7 premised upon the
Defendant's failure to maintain required records; (iv) Violation of
Section 226 premised upon the Defendant's failure to provide
accurate wage statements; (v) Violation of Title 29 U.S.C. Section
206 (the Fair Labor Standards Act) premised upon the Defendant
failure to pay minimum wages; (vi) Violation of Title 29 U.S.C.
Section 2017 and Title 29 C.F.R. Section 778.106 premised upon the
Defendant's failure to pay overtimes wages; (vii) Violation of
California Business and Professions Code Sections 17200, et. seq.
(Unfair Business Practices Act), premised upon the referenced
violations; (viii) California Labor Code Section 2698, et. seq.
(Private Attorney General Act) seeking civil penalties as an
aggrieved employee for the referenced violations of the California
Labor Code; and (ix) Violation of California Labor Code Section
2750.3 for misclassification of their employment status.
The Plaintiffs purport to bring each of these claims on both a
direct and representative basis.
On March 5, 2020, the Defendant filed the two subject motions in
response to the FAC. In its Rule 12(b)(6) motion to dismiss, it
seeks to dismiss all claims against it by three particular
Plaintiffs, Mark Glinoga, Kevin Neely, and Alexis Gonzalez ("MTD
Plaintiffs"). In its motion to compel arbitration, the Defendant
asks that the Court send all of the referenced claims with respect
to each of the remaining Plaintiffs ("MTC Plaintiffs") to
arbitration on an individual basis.
The Defendant bases the latter motion upon arbitration provisions
included in two different agreements assented to by each MTC
Plaintiff as specified, namely the 2019 Technology Services
Agreement ("2019 TSA") and the 2015 Technology Services Agreement
("2015 TSA"). Antecedent to that request, the Defendant also asks
that, with limited exceptions, that the Court sends all questions
concerning the enforceability of the 2019 TSA's and 2015 TSA's
arbitration provisions to the arbitrator for determination.
On Sept. 13, 2019, Judge Chen issued an order finally approving a
settlement agreement reached in O'Connor v. Uber Technologies,
Inc., 13-cv-03826-EMC, a consolidated action in the district
alleging that Defendant misclassifies its drivers as independent
contractors rather than as employees. The O'Connor court did not
enumerate or otherwise detail in that order the scope of the claims
released. In support of their motion to dismiss, the Defendant
asks that the Court take judicial notice of the settlement
agreement finally approved in O'Connor, which the Plaintiffs did
not oppose.
The MTC Plaintiffs advance the following three arguments in
opposition to the Defendant's motion to compel arbitration: (1) the
2019 TSA's arbitration provision does not apply because the MTC
Plaintiffs effectively opted out of that provision; (2) the 2019
TSA's arbitration provision "terminated" their 2015 TSA
counterpart; and (3) in any event, both TSAs' arbitration
provisions are unconscionable and, thus, unenforceable.
Judge Hamilton concludes that (i) the MTC Plaintiffs entered into
and agreed to the 2019 TSA and 2015 TSA, including their respective
arbitration provisions, in the first instance; (ii) the Defendant
and these remaining MTC Plaintiffs are nonetheless bound to the
2015 TSA's arbitration provision, as the MTC Plaintiffs failed to
opt out of the TSAs' arbitration provisions, and will be compelled
to arbitrate; (iii) the Arbitration Provision delegates issues
concerning enforceability ad validity to the arbitrator; (iv) to
the extent the MTC Plaintiffs adequately allege a cognizable PAGA
claim, such claim was not waived by either TSA's arbitration
provision and thus remains properly before the Court; and (v) he
will stay any further litigation of the MTC Plaintiffs' PAGA claim
pending completion of their arbitrable claims.
Turning to the Motion to Dismiss, in their opposition to the
Defendant's opening brief's contention that the O'Connor Settlement
precludes their non-PAGA claims, the MTD Plaintiffs argue the
following: (1) that settlement did not result in a final judgment;
(2) it fails to encompass wage violations after Feb. 28, 2019 up
until present day, as well as their PAGA claim; and (3) the present
action involves Plaintiffs who were not parties to that settlement
because it includes persons who began working for UBER after
February 28, 2019.
In its reply, the Defendant argues the following: (1)
well-established Ninth Circuit authority recognizes that settlement
agreements qualify as final judgment for purpose of claim
preclusion; (2) despite the MTD Plaintiff's suggestion, the FAC
does not include any alleged wage violation that occurred after
Feb. 28, 2019; and (3) the Plaintiff's attempt to include a
declaration from a non-MTD Plaintiff is irrelevant, and, in any
event, improper on a motion to dismiss.
The Judge agrees with the Defendant that the O'Connor Settlement
precludes all the MTD Plaintiffs' non-PAGA claims as presently
alleged. First, for purpose of claim preclusion, the O'Connor
Settlement qualifies as a final judgment. Second, while the Judge
agrees that claim preclusion generally does not bar claims that are
predicated on events that postdate the filing of the initial
complaint, the Plaintiff fails to provide any non-conclusory
allegations that the Defendant committed any Labor Code violations
with respect to the MTD Plaintiffs after Feb. 28, 2019. Third, the
MTD Plaintiffs' citation to Marcos Montes' and Royal Gaston's
declarations for the fact that they began driving for the Defendant
after February 2019 and, thus, could not have been members of the
O'Connor class misses the point. Accordingly, the Judge grants the
Defendant's motion with respect to such claims.
The Defendant challenges the MTD Plaintiffs' PAGA claim on the
following three grounds: (1) they lack standing to assert this
claim; (2) they failed to allege a predicate violation under the
Labor Code and, incidentally, cannot state a cognizable claim for
relief under PAGA; and (3) they failed to allege their compliance
with certain procedural requirements prior to initiating the
litigation.
The Judge finds that the only reasonable interpretation of the
Defendant's use of the term "satisfaction and release" is in
reference to the O'Connor Settlement. Given that the MTD
Plaintiffs do not contend that they maintain standing to assert a
PAGA claim for violations occurring prior to March 1, 2019, the
parties appear in agreement that the MTD plaintiffs may maintain
Article III standing to assert a PAGA claim premised upon a
violation that occurred on or after that date. Accordingly, to the
extent the MTD Plaintiffs can allege that they suffered
post-February 28, 2019 Labor Code violations, the MTD Plaintiffs'
PAGA claims are not subject to dismissal for lack of standing.
The MTD Plaintiffs also failed to provide any non-conclusory
allegation that would support a plausible inference that the
Defendant committed a Labor Code violation against them that
occurred after Feb. 28, 2019. In their opposition, the MTD
Plaintiffs' asserts they have stated plausible claims of relief on
each of their predicate claims. That summary assertion does not
remedy the referenced pleading deficiencies. Accordingly, the MTD
Plaintiffs' PAGA claim is subject to dismissal on this ground.
Finally, the MTD Plaintiffs failed to allege that the LWDA provided
"no notice" within 65 days of their notice of the Defendant's
alleged violations to that agency. Rather, they allege only the
date that they provided the LWDA with such notice (Nov. 1, 2019).
Accordingly, the MTD Plaintiffs' PAGA claim is subject to dismissal
on this separate ground as well.
For these reasons, Judge Hamilton granted in part and denied in
part the Defendant's motion to compel arbitration with respect to
all claims brought by the MTC Plaintiffs, except their PAGA claim.
With respect to such claim, he stayed all further litigation
pending completion of the parties' arbitration.
The Judge granted the Defendant's motion to dismiss the MTD
Plaintiffs' claims in their entirety. To the extent the Plaintiff
premises such claims upon Labor Code violations occurring on or
before Feb. 28, 2019, such dismissal is with prejudice. To the
extent the Plaintiff premises such claims upon violations occurring
after that date, such dismissal is without prejudice.
The MTD Plaintiffs are allowed 28 days from the date of the Order
to file a second amended complaint correcting the deficiencies only
in the claims dismissed without prejudice. In it, they may only
proffer amendments that would support a post-Feb. 28, 2019 Labor
Code violation. The Court will not entertain any amendment
alleging violations that occurred prior to that period. Failure to
remedy the factual defects in the MTD Plaintiffs' claims --
including, without limitation, those identified -- will result in
their dismissal with prejudice. The MTD Plaintiffs may not
otherwise amend their complaint absent leave of court or consent of
the Defendant. Upon the filing of any amended complaint, the MTD
Plaintiffs must also file a redline clearly demarcating its changes
from the existing complaint.
A full-text copy of the District Court's July 17, 2020 Order is
available at https://bit.ly/3oqwvrC from Leagle.com.
UNCA: Student's Class Action Seeks Tuition Refund
-------------------------------------------------
Andrew Crutchfield, writing for thebluebanner.net, reports that a
UNC Asheville student, Harry Burnett, filed a class action lawsuit
against UNCA last spring for a partial refund of tuition due to the
university's handling of the COVID-19 shut down. The original
complaint against UNCA has been dropped but a new one has been
filed.
"We did voluntarily dismiss the federal case filed only against
UNCA, but it was refiled the same day in state court in Orange
County against the entire UNC system and is still pending," said
Eric Poulin, the director of litigation at Anastopoulo Law Firm.
The complaint alleges: "While closing campus and transitioning to
online classes was the right thing for defendants to do, this
decision deprived plaintiff and the other members of the class from
recognizing the benefits of in-person instruction, access to campus
facilities, student activities, and other benefits and services in
exchange for which they had already paid fees and tuition."
Though happy with handling of the semester, Burnett said the
university caused the quality of students' education to suffer and
unjustly profited by not issuing reimbursement to those students.
"Everyone's education was abruptly shifted online in an extremely
unorganized way, and was frankly a failure," Burnett said. "The
quality education students pay upfront for every year was not
present after spring break."
The university issued a refund for housing costs and discounted
remote summer courses.
"Students pay for access to professors, campus resources, ones that
can't be delivered remotely, such as a gym, and of course a quality
education through their tuition. Students can't use any of these
resources when they're not allowed to be on campus," Burnett said.
One concept emphasized by Burnett and the complaints regarding
tuition refunds is students aren't simply paying for credit hours,
but rather for an education, an experience and access to resources.
The complaint alleges: "Common sense would dictate that the level
and quality of instruction an educator can provide through an
online format is lower than the level and quality of instruction
that can be provided in person. The true college experience
encompasses much more than just the credit hours and degrees."
A class action lawsuit involves a group of people being represented
collectively by a member of that group. The goal is to recover some
sort of loss for every individual in the class. In this case, the
class would be made of all UNCA students enrolled during spring
2020 and the recover would go to each of them. Burnett felt this
was the appropriate lawsuit to take on.
"I chose to pursue a class action lawsuit simply because it was the
right thing to do. I'm fortunate enough to not have to worry about
this sort of reimbursement, but I pursued anyway because I know
most students aren't as privileged as I," Burnett said.
Burnett dropped the lawsuit in April after his name was mentioned
in a Citizen-Times article and his father took issue with the
situation.
"To say my father was furious was an understatement. I had never
seen him blow up over something so much. The sad part is that I was
proud to show him what I had done -- his reaction was totally
antithetical to what I expected. He gave me the ultimatum of
'withdraw the suit or get out of the house," Burnett said.
Burnett is currently enrolled at UNCA this fall and he's happy with
the way classes are being handled.
"UNCA has done a fantastic job this time around -- the hybrid
situation is awesome and gives me a lot of confidence in the
university's leadership, it's a great idea," Burnett said.
Several universities in North Carolina encountered similar class
action suits last spring. The North Carolina state legislature
passed a bill in June providing immunity to universities for legal
claims related to COVID-19 closures but it hasn't had much effect
on ongoing class action efforts.
"We do not believe the bill will have any impact on our case and
are moving forward," Poulin said.
Students filing class action suits against their universities is a
very uncommon situation. It is also common for the state to step in
and do the job of the courts by deciding what cases are worthy of a
fair trial.
"State legislation does not run indefinitely. It only stops
Anastopoulos' claim to a certain point," said Catherine Ross
Dunham, Professor of Law at Elon University.
Another class action complaint was filed against the UNC School
System and its Board of Governors on Aug. 10 by seventeen staff and
faculty members at UNC System schools.
The complaint claims "UNC and its constituent institutions cannot,
in the face of this pandemic, provide conditions and places of
employment safe or 'free from' recognized hazards associated with
COVID-19."
The complaint also claims returning non-compliant college students
to poorly ventilated dorms and classrooms creates unsafe
conditions. Since the complaint was filed, several clusters of
COVID-19 have caused NC State to close its dorms and UNC Chapel
Hill to switch entirely to online classes. No refunds for tuition
have been issued by either university. [GN]
UNITED STATES: Court Certifies Class in PPM Suit vs. HHS
--------------------------------------------------------
In the case, Planned Parenthood of Maryland, Inc., et al. v. Alex
M. Azar II, Secretary of the United States of Health and Human
Services, in his official capacity, et al, Civil No. CCB-20-00361
(D. Md.), Judge Catherine C. Blake of the U.S. District Court for
the District of Maryland (i) granted the Plaintiffs' motion for
summary judgment; (ii) denied the Defendants' motion for summary
judgment; (iii) granted the Plaintiffs' unopposed motion for leave
to file an amended complaint; and (iv) granted the Plaintiffs'
motion for class certification.
Plaintiffs, Planned Parenthood of Maryland, Inc., and individuals
Kirsty Hambrick, Rebecca Parson, Mariel Didato, and Tanja
Hollander, on behalf of themselves and a proposed class, challenge
the promulgation of a rule interpreting Section 1303 of the Patient
Protection and Affordable Care Act ("ACA"). The Defendants are
Alex M. Azar II, in his official capacity; the U.S. Department of
Health and Human Services ("HHS"); Seema Verma, Administrator of
the Centers for Medicare and Medicaid Services, in her official
capacity; and Centers for Medicare and Medicaid Services ("HHS").
The case concerns HHS' promulgation of a rule regarding the
requirement of "separate payment" in Section 1303 of the ACA, which
is codified at 42 U.S.C. Section 18023. Section 1303 allows
qualified health plans ("QHPs") offered through state exchanges to
decide whether or not to provide coverage for abortion services,
subject to state laws prohibiting or requiring such coverage. But
Section 1303 also prohibits federal funding of certain abortion
services. Specifically, it prohibits the QHP issuer from using
federal credits or federal cost-sharing reductions to pay for
"non-Hyde abortions," which are abortion services for which public
funding is prohibited under the Hyde Amendment.
In 2012, HHS promulgated a regulation interpreting Section 1303 at
45 C.F.R. Section 156.280, which largely repeated the language of
the statute. HHS issued guidance in 2015, which provided that
section 1303 of the ACA and Section 156.280 do not specify the
method an issuer must use to comply with the separate payment
requirement and noted that the provision could be satisfied by,
inter alia, sending the enrollee a single monthly invoice or bill
that separately itemizes the premium amount for non-excepted
abortion services; sending a separate monthly bill for these
services; or sending the enrollee a notice at or soon after the
time of enrollment that the monthly invoice or bill will include a
separate charge for such services and specify the charge.
On Nov. 9, 2018, HHS proposed the rule challenged in the case. It
proposed that issuers would need to send two separate bills to the
policyholder to comply with Section 1303, and instruct the
policyholder to pay the premium attributable to non-Hyde abortion
coverage in a separate transaction. The proposed rule stated,
though, that for enrollees who still pay the entire premium in one
transaction, the QHP issuer would not be permitted to refuse to
accept such a combined payment on the basis that the policy
subscriber did not send two checks as requested by the QHP issuer,
and to then terminate the policy, subject to any applicable grace
period, for non-payment of premiums. HHS received many objections
to the proposed changes. On the other hand, a minority of
commenters summarily supported the policy.
The final rule, published on Dec. 27, 2019, largely adopted the
proposed rule. In response to the concerns expressed in the notice
and comment period, however, HHS changed the requirement that the
bills be sent in separate mailings with separate postage, although
bills sent electronically must still be sent through separate
communications. The final rule contains some protections for
enrollees who either continue to combine the two payments, or fail
to make the separate payment for non-Hyde abortion coverage. It
also stated that, until HHS is able to address certain concerns
through future action, they also will not take enforcement action
against QHP issuers that modify the benefits of a plan either at
the time of enrollment or during a plan year to effectively allow
enrollees to opt out of coverage of non-Hyde abortion services by
not paying the separate bill for such services. The Plaintiffs
refer to this as the "Opt-Out Policy."
HHS stated that the final rule would cost over $1 billion between
2020 and 2024. In response to concerns about the substantial costs
of the rule to issuers, exchanges, and enrollees, HHS stated that
the use of resources is important to achieving better alignment of
the regulatory requirements for QHP issuer billing of enrollee
premiums with the separate payment requirement in section 1303 of
the PPACA. The final rule sets the implementation deadline as 60
days after the publication of the rule in the Federal Register, but
due to the COVID-19 pandemic, the effective date has been delayed
by 60 days, to Aug. 26, 2020.
The Plaintiffs are the Planned Parenthood Maryland ("PPM"), a
nonprofit reproductive healthcare provider, and the several
individuals who purchased exchange-based health insurance that
covers non-Hyde abortion care. They filed their complaint on Feb.
11, 2020, and a motion for leave to file an amended complaint on
May 19, 2020, which added class allegations.
The Plaintiffs bring three counts: (1) Violation of the
Administrative Procedure Act ("APA") - Contrary to Law and in
Excess of Statutory Authority; (2) Violation of the APA - Arbitrary
and Capricious; and (3) Violation of the APA - Failure to Observe
Procedure Required by Law.
Plaintiffs ask the Court (A) to certify a class pursuant to Federal
Rule of Civil Procedure 23(a) and 23(b)(2); (B) to declare that the
Defendants have violated the APA by adopting the Final Rule using a
rationale that is arbitrary, capricious, and otherwise contrary to
law, and by failing to notify the public and afford it an
opportunity to comment before adopting the Final Rule; (C) to
declare unlawful and immediately vacate the Final Rule; (D) to
issue permanent, and if necessary preliminary, injunctive relief
without bond that prevents the Defendants from requiring
implementation of the Final Rule; (E) to award the Plaintiffs their
costs and expenses, including reasonable attorneys' fees; and (F)
to grant such other relief as the Court deems just and proper.
The "Consumer Plaintiffs" (Kirsty Hambrick, Rebecca Barson, Mariel
DiDato, and Tanja Hollander) move to certify a class under Federal
Rule of Civil Procedure 23(b)(2). The proposed class is defined
as: All enrollees in individual-market Affordable Care Act (ACA)
exchange plans whose plans: (1) include coverage of abortion
services for which federal funds appropriated to the Department of
Health and Human Services (HHS) may not be used; and (2) are
subject to the Separate-Billing Rule's segregation and separate
billing requirements, exclusive of any enrollees who have opted out
of abortion coverage in such plans, pursuant to the
Separate-Billing Rule's opt-out policy.
The Defendants oppose the motion for class certification. They
argue that the proposed class is not ascertainable; the proposed
class does not meet the requirements of typicality and commonality
with respect to the opt-out policy; and the proposed class is
overbroad.
Judge Blake finds that (i) there is no need for a "complicated and
individualized" process to determine who has opted out, because the
Court can consult the issuers' records; (ii) the Plaintiffs have
shown typicality and commonality with respect to the opt-out policy
as the named Plaintiffs are likely to experience harm from the
opt-out policy, and that harm is likely to be typical of the rest
of the class who are also affected by the opt-out policy; (iii) the
named Plaintiffs (or any class plaintiffs) are not parties to the
California action or any other action (that the Court is aware of)
challenging the "separate billing" rule; (iv) the proposed class
meets the numerosity requirement, because, with approximately 3
million class members spread throughout the country, joinder of all
members is impracticable; (v) there does not appear to be any
conflict between the named Plaintiffs and the other class members,
and the counsel is qualified and experienced; and (vi) Rule
23(b)(2) is met because the "separate billing" rule applies
generally to the class, and the requested relief would provide the
same relief to all the class members. Accordingly, Judge Blake
granted the Plaintiffs' motion for class certification.
Turning to the motions for summary judgment, the Judge agrees with
the Plaintiffs that the "separate billing" rule violates subsection
(1) of Section 1554. The "separate billing" requirement directly
affects how consumers pay for medical care. And it is a "barrier"
because it makes it harder for consumers to pay for insurance,
because they must now keep track of two separate bills. Further, on
the record before the Court, the Judge finds that the "separate
billing" requirement is an "unreasonable barrier." The record
indicates that the rule is likely to cause enrollee confusion and
may lead to some enrollees losing health insurance, should issuers
choose not to take advantage of HHS's enforcement discretion policy
regarding placing policy holders into grace periods.
The Judge also agrees with the Plaintiffs that HHS has not
sufficiently provided good reasons for the "separate billing"
requirement. First, HHS' reasoning appears to be internally
inconsistent and is not sufficiently explained. Second, HHS'
explanation for the final rule is also inadequate because it failed
to consider relevant factors in determining Congressional intent.
To be clear, HHS has provided virtually no explanation for finding
that the "separate billing" rule is more consistent with
Congressional intent when it appears to acknowledge that the plain
language of the statute does not require it, when Congressional
intent is the only justification for a rule that HHS acknowledges
will impose massive costs, and when HHS failed to consider any
other factors that traditionally have been used in determining
Congressional intent.
Finally, because HHS failed to consider and adequately address
specific, contrary evidence from regulated stakeholders, the
implementation deadline is arbitrary and capricious, the Court
finds. Additionally, the "separate billing" rule violates Section
1554 and also is arbitrary and capricious for failure to provide a
reasoned explanation. Because she finds that the "separate
billing" rule is not in accordance with law, as it violates Section
1554, and also is arbitrary and capricious, the Judge need not
address whether the rule violates Section 1303(b)(3)(A)19 or
whether the opt-out policy is separately unlawful.
Judge Blake concludes that injunctive relief should be no more
burdensome to the Defendant than necessary to provide complete
relief to the Plaintiffs. The class consists of all enrollees in
exchange plans who would be affected by the rule, exclusive of
opt-outs. There does not appear to be any way to provide relief to
the entire class without vacating the rule, given that the class
consists of approximately 3 million people throughout the country
(minus opt-outs). Therefore, the Judge ordered that the "separate
billing" rule be vacated and the Defendants be enjoined from
requiring its implementation.
In summary, Judge Blake granted the Plaintiffs' motion to amend,
their motion for class certification, and their motion for summary
judgment. The Judge denied the Defendants' motion for summary
judgment. The "separate billing" rule, which is contrary to
Section 1554 of the ACA and is arbitrary and capricious, is vacated
and its enforcement is enjoined.
A full-text copy of the District Court's July 10, 2020 Memorandum
is available at https://bit.ly/3mjviAD from Leagle.com.
UNITED STATES: Dismissal of Day RICO Suit Recommended
-----------------------------------------------------
In the case, ROGER CHARLES DAY, JR., Plaintiff, v. RICHARD A.
MILLER, et al., Defendants, Case No. 2:20-cv-2978 (S.D. Ohio),
Judge Kimberly A. Jolson of the U.S. District Court for the
Southern District of Ohio, Eastern Division, granted the
Plaintiff's Motion for Leave to Proceed in forma pauperis, and
recommended that the Court dismisses the Plaintiff's claims.
In late 2004 and early 2005, Roger Day began running a business
scheme involving his then-girlfriend, Susan Crotty Neufeld, and his
friends, Nathan Carroll and Greg Stewart. Acting at Day's
direction, Neufeld, Carroll, and Stewart would set up companies
that could bid on parts-supply contracts for the Defense Logistics
Agency ("DLA"), the agency within the U.S. Department of Defense
("DOD") responsible for acquiring parts for the military services.
Using Day's custom-designed software program, the companies would
then bid en masse on low-dollar value DLA contracts. When one of
the newly formed companies won a contract, Day would purchase the
necessary parts and have them shipped to Neufeld or Carroll, who
would in turn deliver the parts to a packaging company for shipping
to the DLA to complete the contract. Day would then share a
portion of the profit with the others.
The arrangement between Day and his co-conspirators lasted three
years, during which the various companies secured some 987
contracts worth approximately $8,670,380.78. Like all too many
get-rich-quick ideas, however, the scheme was too good to be true.
The trick was in the parts: rather than delivering parts that
complied with the exacting military specifications called for in
the various contracts, Day would purchase similar sounding -- yet
cheaper and non-conforming -- items.
Early on in the scheme, in May 2005, Day moved to Mexico, where he
directed Neufeld, Carroll, and Stewart through emails, phone calls,
and internet chats. The scheme unraveled as the Plaintiff's
co-conspirators were arrested in 2006 and 2007. After a year on
the run in Mexico, the Plaintiff was arrested there in 2008 and
imprisoned while awaiting extradition to the United States. He was
subsequently indicted in the Eastern Division of Virginia for wire
fraud conspiracy; wire fraud; aggravated identity theft; money
laundering conspiracy; smuggling conspiracy; and obstruction of
justice. After extradition, he was convicted following a jury
trial and sentenced to 1,260 months of imprisonment.
Now, the Plaintiff purports to bring a civil RICO class action on
behalf of a class of persons who contracted with the DOD, including
the DLA and various Defense Supply Centers, using the DD1155 form
that contained the express waiver of the contractor's signature for
acceptance of 'the contract' terms and conditions and the waiver of
the contractor's return of a signed DD1155 contract to the contract
administrator, from 2004 to the present.
The Defendants are a number of "contracting/ordering officers" and
contract administrators who allegedly worked for the DOD during
that time period. They allegedly approved "illegal" contracts in
violation of various federal regulations. In doing so, the
Plaintiffs alleges that the Defendants engaged in a civil RICO
conspiracy.
The Plaintiff is an inmate at Terre Haute Federal Correctional
Institution who is proceeding pro se against the Defendants. The
matter is before the Court for consideration of the Plaintiff's
Motion for Leave to Proceed in forma pauperis and the initial
screen of the Plaintiff's Complaint under 28 U.S.C. Section
1915(e)(2).
Upon consideration of the Plaintiff's Motion for Leave to Proceed
in forma pauperis, Magistrate Judge Jolson granted the Plaintiff's
Motion. The Plaintiff is required to pay the full amount of the
Court's $350 filing fee. The Plaintiff's Motion reveals that he
has an insufficient amount to pay the full filing fee.
Pursuant to 28 U.S.C. Section 1915(b)(1), the custodian of the
Plaintiff's inmate trust account at the Terre Haute Correctional
Institution is directed to submit to the Clerk of the U.S. District
Court for the Southern District of Ohio as an initial partial
payment, 20% of the greater of either the average monthly deposits
to the inmate trust account or the average monthly balance in the
inmate trust account, for the six-months immediately preceding the
filing of the Complaint. After full payment of the initial,
partial filing fee, the custodian will submit 20% of the inmate's
preceding monthly income credited to the account, but only when the
amount in the account exceeds $10 until the full fee of $350 has
been paid to the Clerk of the Court.
Checks should be made payable to Clerk, United States District
Court and should be sent to: Prisoner Accounts Receivable 258 U.S.
Courthouse 85 Marconi Boulevard Columbus, Ohio 43215. The
prisoner's name and the case number must be included on each
check.
Consequently, the Magistrate Judge ordered that the Plaintiff be
allowed to prosecute his action without prepayment of fees or costs
and that judicial officers who render services in the action will
do so as if the costs had been prepaid. The Clerk of Court is
directed to mail a copy of the Order to the Plaintiff and the
prison cashier's office. The Clerk is further directed to forward
a copy of the Order to the Court's financial office in Columbus.
Next, the Magistrate Judge finds that the Plaintiff fails to state
a claim upon which relief can be granted. As a pro se litigant, he
is not permitted to prosecute a class action. And any individual
civil RICO claim that the Plaintiff could possibly bring is barred
by the statute of limitations applicable to such claims. Civil
RICO claims have a four-year statute of limitations. The Plaintiff
has been incarcerated since 2008. Nothing in the Complaint
suggests that he only learned of his alleged injury in the past
four years and that he could not have discovered his injury earlier
through the exercise of reasonable diligence. For these reasons,
the Magistrate recommended that the Court dimisses the Plaintiff's
Complaint as for failure to state a claim.
If any party objects to the Report and Recommendation, that party
may, within 14 days of the date of the Report, file and serve on
all parties written objections to those specific proposed findings
or recommendations to which objection is made, together with
supporting authority for the objection(s).
A full-text copy of the District Court's July 10, 2020 Report &
Recommendation is available at https://bit.ly/35qye7I from
Leagle.com.
UNITEDHEALTHCARE SERVICES: Samson Suit Stayed Pending Matlock Case
------------------------------------------------------------------
Judge James L. Robart of the U.S. District Court for the Western
District of Washington, Seattle, stayed the case, FRANTZ SAMSON,
Plaintiff, v. SERVICES, INC., Defendant, Case No. C19-0175JLR (W.D.
Wash.), pending resolution of the consolidated case Matlock v.
United HealthCare Services, Inc., Case No. 2:13-cv-02206 (E.D.
Cal.).
The case arises under the Telephone Consumer Protection Act of 1991
("TCPA"). Frantz Samson alleges that he received automated
telemarketing calls on his cellular telephone from UnitedHealthCare
Services Inc. beginning in March 2018. He further alleges that he
"has never requested information from United Healthcare, has never
provided his cell phone number to United Healthcare, and did not
consent to receive calls from United Healthcare.
Mr. Samson seeks to certify the case as a class action on behalf of
two classes:
a. Wrong Number Class: All persons or entities in the United
States (1) to whom Defendant placed a call, (2) on or after four
years before the filing of this action (3) via its Avaya dialer or
LiveVox IVR dialing system, (4) directed to a number assigned to a
cellular telephone service, but not assigned to a United Healthcare
member at the time of the call.
b. Do-Not-Call Class: All persons or entities in the United
States who received a call to their cellular telephone line made by
or on behalf of Defendant using its Avaya dialer or LiveVox IVR
dialing system on one or more dates after Defendant's records
reflect that the telephone number was flagged or documented as do
not call, final do not contact or otherwise recorded as a number
not to be called.
Mr. Samson brings two claims for relief under the TCPA on behalf of
these proposed classes.
Related Cases:
At least three cases similar to the instant one are pending in the
U.S. District Court for the Eastern District of California:
Matlock; Humphrey v. United HealthCare Services, Inc., Case No.
2:14-cv-01792 (E.D. Cal.); and Gonzalez v. Optum, Inc., Case No.
2:20-CV-01129 (E.D. Cal.).
Matlock was filed in the Eastern District of California on Oct. 22,
2013. The named plaintiff in that case, Jack Matlock, alleges that
he began receiving calls from United on his cellular telephone in
October 2013 that were directed to an individual named Willard
Hanlin. Mr. Matlock further alleges that the calls he received
were automated and utilized an artificial or prerecorded voice, in
violation of the TCPA. He claims that he is not Willard Hanlin and
that he did not provide his phone number to United or consent to
receive automated calls from United.
Mr. Matlock seeks to certify a class consisting of: All persons
within the United States who received any telephone call/s from
Defendant or its agent/s and/or employee/s to said person's
cellular telephone made through the use of any automatic telephone
dialing system or with an artificial or prerecorded voice within
the four years prior to the filling of the Complaint.
On March 20, 2014, then Chief Judge Morrison C. England, Jr. stayed
Mr. Matlock's case and denied Mr. Matlock's motion for class
certification without prejudice as a result of the stay. Judge
England stayed the case at United's request pending resolution of a
petition for expedited declaratory ruling with the Federal
Communications Commission on the meaning of certain terminology in
the TCPA.
Humphrey was initially filed in the U.S. District Court for the
Northern District of Illinois on Feb. 18, 2014. The named
plaintiff in that case, Andy Humphrey, alleges that he began
receiving calls from United on his cellular telephone in December
2013 that were directed to an individual named Johnny Perez. Like
Mr. Matlock and Mr. Samson, Mr. Humphrey alleges that the calls he
received were automated and utilized an artificial or prerecorded
voice, in violation of the TCPA. He claims that he had no business
relationship with United and did not consent to receiving phone
calls from United. Mr. Humphrey seeks to certify a class
consisting of: "consumers who were called by United Healthcare
using an artificial or pre-recorded voice without the consent of
the called party."
On July 16, 2014, Judge Sara L. Ellis in the Northern District of
Illinois granted a motion to transfer Humphrey to the Eastern
District of California based on the first-to-file rule. The court
concluded that transferring the case to the Eastern District of
California, where Matlock is pending, best promotes judicial
economy and prevents duplicative litigation in separate districts.
After the case was transferred to the Eastern District of
California, it was reassigned to Judge English, consolidated with
Matlock under Matlock's case number, and stayed for the same
reasons that Matlock was stayed. Because Humphrey has been
consolidated with Matlock, Humphrey also remains stayed.
Gonzalez was originally filed in the U.S. District Court for the
Western District of Texas on Dec. 10, 2019. The named plaintiff in
that case, Diane Gonzalez, alleges that she began receiving
prerecorded messages from Optum, Inc. -- a subsidiary of United --
on her cellular telephone in September 2019. Like Mr. Matlock, Mr.
Samson, and Mr. Humphrey, Ms. Gonzalez alleges that the messages
she received were automated and utilized an artificial or
prerecorded voice in violation of the TCPA. Ms. Gonzalez claims
that she did not consent to receiving phone calls from Optum.
Ms. Gonzalez seeks to certify a class consisting of: All persons
within the United States who, within the four years prior to the
filing of this Complaint, received a telephone call made through
the use of a prerecorded voice, from Defendant or anyone on
Defendant's behalf, for the purpose of promoting Defendant's House
Calls program.
On June 3, 2020, Judge Alan D. Albright in the Western District of
Texas granted a motion to transfer Gonzalez to the Eastern District
of California based on the first-to-file rule. The court concluded
that transferring the case to the Eastern District of California is
proper in light of the likelihood of substantial overlap this case
has with Matlock and Humphrey. After the case was transferred to
the Eastern District of California, it was reassigned to Judge
English due to its relation to Matlock and Humphrey. On June 30,
2020, Optum moved to consolidate Gonzalez with Matlock and Humphrey
and to stay Gonzalez for the same reasons that Matlock and Humphrey
were stayed. That motion is currently pending.
United's Motion in Samson Case:
In the current motion, United seeks two alternate forms of relief.
United asks the Court to stay the case until the United States
Supreme Court decides Barr v. American Association of Political
Consultants, Inc., No. 19-631; or, in the alternative, to dismiss,
transfer, or stay the case under the first-to-file rule. Plaintiff
Samson opposes the motion.
Although Judge Robart concludes that the first-to-file rule should
be applied to the case and recognizes the inherent efficiencies in
transferring the case to Judge England so that it may be decided by
the same court considering Matlock, Humphrey, and Gonzalez, he
holds that the Court lacks the authority to transfer the case to
the Eastern District of California. The Court may only transfer
the case to the Eastern District of California if venue is
appropriate in that district such that the case "might have been
brought" there in the first instance.
Venue would not be proper in the Eastern District of California.
For purposes of determining venue for class actions under
subsection (b)(2), the 'events' in question are only those
involving the named plaintiffs. Accordingly, venue is not proper
in the Eastern District of California under subsection (b)(2)
because nothing in Mr. Samson's complaint suggests that any events
that gave rise to his TCPA claim occurred in the Eastern District
of California. Finally, subsection (b)(3) is inapplicable because
there are appropriate venues for the instant action under
subsections (b)(1) and (b)(2). Thus, the Court cannot transfer the
case to the Eastern District of California.
Judge Robart also declines to dismiss the case and concludes
instead that a stay is most appropriate. Although he recognizes
Humphrey's resolution may provide the prospective class members in
the instant case with sufficient relief or may resolve it on
preclusion grounds, United did not adequately support its argument
on those issues in its motion. The Judge will not dismiss the case
based solely on United's undeveloped assertion that Mr. Samson and
his proposed class will be fully covered by Matlock and Humphrey.
Instead, the Judge concludes that the prudent course of action is
to stay this case pending resolution of Matlock and Humphrey. As
other courts have succinctly put it: "Why take chances? It is
simpler just to stay the second suit."
Accordingly, Judge Robart granted United's alternative motion to
dismiss, transfer, or stay the case, and stayed the case pending
resolution of the consolidated case in Matlock.
For the reasons set forth, Judge Robart granted in part and denied
in part United's motion. Specifically, the Court denied as moot
United's request to stay the case pending resolution of Barr v.APP,
but granted United's alternative motion to dismiss, transfer, or
stay the case under the first-to-file doctrine. The Judge stayed
the case pending resolution of the consolidated case Matlock.
Within six months of the filing date of the Order, or within 20
days following the conclusion of Matlock, whichever is sooner, the
parties will file a joint status report describing the status of
the case, and if warranted, requesting that the Court lifts the
stay.
The Judge directed the Clerk of Court to strike Mr. Samson's
pending motion for class certification. If appropriate, Mr. Samson
may refile his motion for class certification once the stay is
lifted. In light of his direction to strike the motion for class
certification, the Judge also directed the Clerk to strike the
parties' pending motions to seal as moot and to designate all
provisionally sealed documents as withdrawn from the record.
A full-text copy of the District Court's July 14, 2020 Order is
available at https://bit.ly/3mpFp6H from Leagle.com.
US DEFENSE DEPT: Court Denies Bid to Certify Class in Hobson Suit
-----------------------------------------------------------------
In the case, FAYE RENNELL HOBSON, Plaintiff, v. MARK T. ESPER
Secretary, Department of Defense Defendant, Case No. 3:20-cv-00076
(M.D. Tenn.), Judge William L. Campbell, Jr. of the U.S. District
Court for the Middle District of Tennessee, Nashville Division,
denied the Plaintiff's motion for class certification.
Pending before the Court is a Report and Recommendation from the
Magistrate Judge recommending the Court denies class certification
in the Hobson case. The Plaintiff filed objections to the Report
and Recommendation and the Defendant responded to the objections.
Plaintiff Hobson, who is proceeding pro se, filed the case as a
putative class action alleging racial discrimination and
retaliation in violation of Title VII of the Civil Rights Act of
1964. In addition to the class claims, the Plaintiff asserts an
individual claim under the Rehabilitation Act of 1973.
In her pleadings, the Plaintiff requested the Court to certify the
case as a class action lawsuit. The Magistrate Judge construed the
Plaintiff's request as a motion for class certification under Rule
23 of the Federal Rules of Civil Procedure. The Magistrate Judge
recommended that class certification be denied because the
Plaintiff, as a pro se party, may only represent herself and cannot
serve as a representative of the class.
The Plaintiff's response to the Report and Recommendation raises
two objections relevant to the Magistrate Judge's recommendation.
She objects that the Magistrate Judge did not cite the rule or law
that prevents a pro se party from serving as a class
representative. She also objects to the determination that 29
C.F.R. Section 1614.204, which allows a "class agent" to act for a
class in an administrative proceeding before the Equal Employment
Opportunity Commission ("EEOC") representative, does not apply to
litigation in court.
Judge Campbell holds that these objections are without merit. The
Plaintiff's argument that she is a highly experienced pro se
litigant, does not address the well-established law in this Circuit
that a pro se litigant cannot serve as a class representative. The
Magistrate Judge correctly stated the law that a pro se party may
only represent herself in her own case but cannot make filings on
behalf of another party. The Magistrate Judge also correctly
determined that that Plaintiff, as a non-attorney proceeding pro
se, cannot adequately represent the class.
The Plaintiff's "objection" to the Magistrate Judge's statement
that 29 C.F.R. Section 1614.204 applies only to administrate
proceedings is without substantive argument. The Judge has
reviewed the relevant regulation and agrees with the Magistrate
Judge that it applies only to administrative proceedings before the
EEOC and does not allow a pro se litigant to serve as a class
representative in court.
For the reasons he stated, Judge Campbell overruled the Plaintiff's
objections to the Report and Recommendation, and adopted the Report
and Recommendation.
A full-text copy of the District Court's July 17, 2020 Order is
available at https://bit.ly/34tcdpB from Leagle.com.
USF REDDAWAY: Stipulated Protective Order in Rivera Suit Filed
--------------------------------------------------------------
In the case, MONICA RIVERA individually, and on behalf of all
others similarly situated, Plaintiff, v. USF REDDAWAY INC., an
Oregon Corporation; and DOES 1 through 10, inclusive, Defendant,
Case No. CV 19-10218-JAK (FFM) (C.D. Cal.), Plaintiff Rivera and
Defendant USF filed with Magistrate Judge Rozella A. Oliver of the
U.S. District Court for the Central District of California their
proposed Stipulated Protective Order.
The Plaintiff and the Defendant have met and conferred as required
by Fed. R. Civ. P. 26(c) and agreed that they may seek discovery of
information constituting confidential, proprietary or private
information. Given the nature of the case as a wage and hour class
action, private employment data and confidential and proprietary
business information is likely to be implicated in discovery. They
therefore agreed that a protective order is necessary to protect
the parties and third parties from annoyance, embarrassment,
oppression, or undue burden or expense.
The protections conferred by the parties' Stipulation and Order
cover not only Protected Material, but also any information copied
or extracted therefrom, as well as all copies, excerpts, summaries,
or compilations thereof; plus testimony, conversations, or
presentations by parties or counsel to or in court or in other
settings that might reveal Protected Material.
However, the protections conferred by the Stipulation and Order do
not cover the following information: (a) any information that is in
the public domain at the time of disclosure to a Receiving Party or
becomes part of the public domain after its disclosure to a
Receiving Party as a result of publication not involving a
violation of the Order, including becoming part of the public
record through trial or otherwise; and (b) any information known to
the Receiving Party prior to the disclosure or obtained by the
Receiving Party after the disclosure from a source who obtained the
information lawfully and under no obligation of confidentiality to
the Designating Party. Any use of Protected Material at trial or
in other court hearings or proceedings will be governed by the
orders of the trial judge.
Even after the final disposition of the litigation, the
confidentiality obligations imposed by the Order will remain in
effect until a Designating Party agrees otherwise in writing or a
court order otherwise directs. Final disposition will be deemed to
be the later of (1) dismissal of all claims and defenses in the
action, with or without prejudice; and (2) final judgment therein
after the completion and exhaustion of all appeals, re-hearings,
remands, trials, or reviews of the action, including the time
limits for filing any motions or applications for extension of time
pursuant to applicable law.
A Party that elects to initiate a challenge to a Designating
Party's confidentiality designation will initiate the dispute
resolution process by providing written notice of each designation
it is challenging and describing the basis for each challenge.
A Receiving Party may use Protected Material that is disclosed or
produced by another Party or by a non-party in connection with the
case only for prosecuting, defending, or attempting to settle this
litigation. Such Protected Material may be disclosed only to the
categories of persons and under the conditions described in the
Order. When the litigation has been terminated, a Receiving Party
must comply with the provisions of section 12.
Unless otherwise ordered or agreed in writing by the Producing
Party, within 60 days after the final termination of the action,
each Receiving Party must return all Protected Material to the
Producing Party. Notwithstanding this provision, the Counsel is
entitled to retain an archival copy of all pleadings, motion
papers, transcripts, legal memoranda, correspondence or attorney
work product, even if such materials contain Protected Material.
Any such archival copies that contain or constitute Protected
Material remain subject to the Protective Order as set forth in
Section 5.
A full-text copy of the parties' July 10, 2020 Stipulated
Protective Order is available at https://bit.ly/3ktoakw from
Leagle.com.
Marcus J. Bradley, Esq. -- mbradley@bradleygrombacher.com -- Kiley
L. Grombacher, Esq. -- kgrombacher@bradleygrombacher.com -- Lirit
A. King --lking@bradleygrombacher.com -- BRADLEY/GROMBACHER, LLP,
Westlake Village, California, Attorneys for Plaintiff.
RONALD J. HOLLAND -- rjholland@mwe.com -- PANKIT J. DOSHI --
pdoshi@mwe.com -- PHILIP SHECTER -- pshecter@mwe.com -- MCDERMOTT
WILL & EMERY LLP, San Francisco, CA, Attorneys for Defendant.
VIEGA LLC: Approval Hearing on $15MM Class Deal Set for Dec. 17
---------------------------------------------------------------
A Settlement of a class action lawsuit affects you if you
indirectly purchased Viega ProPress(R) copper press fittings sold
by wholesale distributors in the United States between January 29,
2015 and September 18, 2020. The Settlement creates a Cash
Settlement Fund and Rebate Program funds that will be distributed
to affected indirect purchasers of these products. If you qualify,
you may send in a Claim Form to ask for payment, and you may
request a rebate from the Rebate Program. Or, you can exclude
yourself from the Settlement or object.
The U.S. District Court for the Middle District of Pennsylvania
authorized this notice. The Court will have a hearing to consider
whether to approve the Settlement, so that the benefits may be
paid.
Who's Affected?
You are a 'Class Member' if you purchased one or more Viega
ProPress(R) copper press fittings from a wholesale distributer in
the United States between January 29, 2015 and September 18, 2020.
What's this About?
The lawsuit claimed that Viega made wholesaler distributor access
to its carbon steel press fittings contingent upon distributor
agreements not to sell Viega's competitors' copper press fittings,
and/or charged higher prices to distributors that stock competitor
copper press fittings. The lawsuit alleged that this caused
plumbers to pay more for Viega ProPress(R) copper press fittings.
Viega denies all of the allegations, denies that it acted
improperly or that its actions were unlawful or harmed anyone, and
has asserted many defenses. The Settlement was reached to resolve
the dispute and is not an admission of wrongdoing or an indication
that any law was violated.
What Can You Get From The Settlement?
The $15 million Settlement includes a Cash Settlement Fund of $10
million and a Rebate Program of up to $5 million for Class Members
who made purchases of Viega ProPress(R) copper press fittings from
a wholesale distributor located in, or made from a purchaser's
principal place of business located in: AL, AZ, CA, CT, IA, KS, MA,
MI, MN, MS, NC, ND, NE, NH, NM, NV, NY, OR, RI, SD, TN, UT, VT, WI,
WV, and the District of Columbia ("Multi-State Damages Subclass").
These states have antitrust or consumer protection laws that allow
consumers to sue for damages for alleged antitrust violations.
Payments from the Net Cash Settlement Fund to Class Members who are
located in or who made purchases in these states will be a
percentage of total purchases of Viega ProPress(R) copper press
fittings during the class period, not to exceed 25% of the total
purchase amount. Rebate payments distributed from the Rebate
Program to Class Members who are located in or who made purchases
of Viega ProPress(R) copper press fittings in these states will be
4% of purchases made during the Rebate Claims Period, capped at
$500.
If your principal place of business is located outside of these
states, or you made purchases of Viega ProPress(R) copper press
fittings from a wholesale distributor outside of these states, you
cannot make a claim for a settlement payment or rebate. However, as
part of the settlement Viega has agreed to change, across the U.S.,
certain pricing policies that formed the basis for plaintiffs'
claims, but which Viega denied were unlawful or caused any harm.
How Do You Get A Payment And Rebate?
A Plan of Allocation and Claim Forms for Settlement Payments or
Rebate Payments can be found at www.PressFittingsSettlement.com.
Claim Forms for payments from the Cash Settlement Fund are due by
December 15, 2020. Claims for Rebate Program payments are separate:
Viega will send an additional notice of the Rebate Program via
email before Rebate Claim Forms are due to Class Members who have
submitted Claim Forms for Settlement Payments. The Settlement
website, www.PressFittingsSettlement.com, will also provide notice
of when Rebate Claim Forms are due. To receive a payment or
rebate, you will need to submit proof of the amount and prices paid
for purchases of Viega ProPress(R) copper press fittings during the
relevant Claims Period. Just call 1-866-977-1135 or visit
www.PressFittingsSettlement.com for a detailed notice or for more
information.
What Are Your Options?
If you don't want a payment or rebate, and you don't want to be
legally bound by the Settlement, you must exclude yourself by
November 30, 2020, or you won't be able to sue or continue to sue.
If you exclude yourself, you can't get a payment or rebate from
this Settlement. If you stay in the Class, you may comment on or
object to the Settlement by November 30, 2020. The detailed notice
describes how to exclude yourself, comment or object. The Court
will hold a hearing in this case (Al's Discount Plumbing LLC et al.
v. Viega LLC, Case No. 1:19-cv-00159) on December 17, 2020, to
consider whether to approve the Settlement and attorneys' fees and
expenses totaling no more than $4.5 million. You may appear at the
hearing, but you don't have to.
For more information, call 1-866-977-1135 or visit
www.PressFittingsSettlement.com. [GN]
WALGREEN CO: In Camera Review of Withheld Docs in Washtenaw Denied
------------------------------------------------------------------
In the case, WASHTENAW COUNTY EMPLOYEES' RETIREMENT SYSTEM,
Individually and on Behalf of All Others Similarly Situated,
Plaintiffs, v. WALGREEN CO., GREGORY D. WASSON, and WADE D.
MIQUELON, Defendants, Case No. 15 C 3187 (N.D. Ill.), Magistrate
Judge Gabriel A. Fuentes of the U.S. District Court for the
Northern District of Illinois, Eastern Division, denied the
Plaintiffs' motion for an in camera inspection of 75 documents from
those listed on two of the three volumes of privilege logs tendered
by Defendant Walgreen in support of attorney-client privilege
claims it asserts in support of its withholding of the documents.
Lead Plaintiff Industriens Pensionsforsikring, A/S brought the
securities fraud class action lawsuit against Walgreens, its former
CEO Wasson and its former CFO Miquelon under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934. The Plaintiffs'
allegations relate to Walgreens's public statements concerning the
expected benefits of a 2012 merger with Alliance Boots GmbH, in the
form of a goal, for fiscal year 2016, of between $9 billion and
$9.5 billion in adjusted earnings before interest and taxes.
The Plaintiffs allege that Walgreens had become aware that earnings
would fall short of that goal, in large part due to a significant
level of generic drug price inflation and a phenomenon known as
"reimbursement pressure," by the class period of March to August
2014 but continued to make statements or omissions that downplayed
the risk of not achieving the FY 2016 EBIT Goal.
The Plaintiffs move for an in camera inspection of 75 documents
from those listed on two of the three volumes of privilege logs
tendered by Walgreens in support of attorney-client privilege
claims it asserts in support of its withholding of the documents.
In all, the first two volumes of the Walgreens privilege log list
some 1,200 documents, and the third, which is the subject of
ongoing efforts by the parties to resolve their disputes under
Local Rule 37.2, contains an additional 4,500-some documents.
The Plaintiffs argue that the Court's ruling (after in camera
inspection) on these 75 documents (as contained in Walgreens's
opposition to the motion for in camera review, Exhibit 1) will give
the parties guidance on how to approach disputes over other
privilege claims arising from documents Walgreens has described in
all three privilege logs.
With respect to the Plaintiffs' motion for in camera review,
Walgreens does not dispute that whether to conduct an in camera
review to determine the validity of privilege claims is a matter
for the Court's discretion. Rather, Walgreens argues that the
Plaintiffs have not established that the Court ought to exercise
its discretion to conduct an in camera review because the
Plaintiffs have failed to present a well-founded basis for
challenging the logs' privilege designations. Walgreens asserts
that it diligently assembled the logs over thousands of attorney
hours and adequately described the documents for purposes of
evaluating the privilege claims within the logs, making an in
camera review of the 75 documents unnecessary.
The types of log entries included in the motion fall into several
categories as delineated in the motion: (1) communications between
non-attorney employees; (2) emails on which in-house counsel is
copied and is not a sender or recipient; (3) emails disseminated
"widely" within the company and through distribution lists; (4)
communications "reflecting," "circulating" or "discussing" legal
advice; (5) communications that Plaintiffs say are simply not
privileged; and (6) withheld attachments.
As to communications between non-attorney employees, Magistrate
Judge Fuentes finds that the lawyer's involvement in a
communication weighs heavily in favor of its being deemed
privileged, but privileged communications may be contained in
discussions between or among non-attorney employees. Employees
below the executive-suite level may have a distinct need to discuss
and apply legal advice. The Plaintiffs point to eight emails as
examples which did not involve lawyers and which, according to the
Plaintiffs, show why in camera review is needed.
The Magistrate Judge holds that the log descriptions at issue
adequately indicate that the communications concern "legal"
matters, and in camera review is not suggested by anything other
than the Plaintiffs' speculation that the communications are of a
business or non-legal nature. That is an insufficient basis for in
camera review.
As to emails on which in-house counsel, the emails relied upon by
the Plaintiffs for the idea that the privilege log disclosures were
inadequate in a way that warrants in camera review, where one or
more lawyers is a "cc" or was merely copied on a communication, are
similar to those involving all non-lawyers. The Plaintiffs list
six examples which they say appear to be routine business
communications in which in-house counsel is simply a copied
recipient.
The Magistrate Judge disagrees. The log describes these emails as
"discussing" or "reflecting" legal advice on specific matters
similar to those disclosed in the log entries discussed above in
Part II(A). The addition of one or more attorneys to the
distribution list does not make the descriptions of their
privileged character any more or less adequate, and the subject
matters seem highly relevant to the disputed issues in the case.
Legal advice about earnings disclosures, generic inflation and
reimbursement, reimbursement rates, and discussions with analysts
does not cross the line into "routine business communications"
unless the Court were to find that the otherwise adequate
descriptions are simply disingenuous. The Court has not been
presented with a basis for such a finding and does not so find.
Turning to emails disseminated "widely" within the company and
through distribution lists, the Magistrate Judge does not accept
that the allegedly "wide" distribution of these emails warrants in
camera review, where there is no indication that they were shared
outside the company except with non-attorney consultants as to whom
no showing has been made that disclosure represented a waiver or a
breaking of the privilege. He does note that in these and many
other log descriptions, the identity of the attorney who was the
source of the legal advice is not disclosed. He believes that a
better practice would be to identify that attorney, but the fact
that these attorneys are not identified specifically does not
defeat the privilege claim or trigger in camera review. In any
event, the Magistrate is not persuaded that further identification
of the lawyers who gave the advice is proportional to the needs of
the case at this time.
For communications "reflecting," "circulating" or "discussing"
legal advice, the Magistrate already explained that legal advice
may well need to be disseminated internally, discussed, and
circulated to others within the company in email communications
that "reflect" what the advice is. The Walgreens log describes the
"legal advice" in question specifically as concerning
communications to shareholders on matters including business
performance and earnings, and communications to directors about
"tax inversion." The descriptions are adequate. They do not back
up the Plaintiffs' speculation that the emails are mere business
communications for which the predominate purpose is something other
than legal advice. In camera review is not necessary.
As to the purportedly "non-privileged" matters, the Plaintiffs
assert that Walgreens withheld and logged various documents that
are not privileged because they related to "draft" press releases,
public disclosures, or shareholder communications. The log entries
claimed to be insufficient to establish privilege state
specifically that the communications 'reflect' requests for legal
advice about the content of draft earnings disclosures and an
earnings-related press release. The entries do not support the
Plaintiffs' request for in camera review.
Finally, with respect to the withheld attachments, attachments need
to have their own privileged bases in order for them to be properly
withheld under a claim of privilege. The Plaintiffs complain that
Walgreens improperly withheld attachments that do not appear to be
legal in nature nor reflect legal advice. It is unclear whether
Walgreens separately logged the attachments or provided a separate
description of the senders and recipients, the privileged content,
the date, and so forth. The Magistrate in his discretion will not
review withheld any attachments in camera, and the broader question
of supplementation of Walgreens's logs on this issue is not
currently before the Court. He directs the parties to meet and
confer about an approach that supplies the Plaintiffs with the
necessary information about withheld attachments, consistent with
his Opinion.
For the foregoing reasons, Magistrate Judge Fuentes denied the
Plaintiffs' motion.
A full-text copy of the District Court's July 14, 2020 Memorandum
Opinion & Order is available at https://bit.ly/2Tqj9NS from
Leagle.com.
WEGMANS FOOD: Court Dismisses First Amended Steele Class Suit
-------------------------------------------------------------
In the case, QUINCY STEELE and JIMMY ARRIOLA, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
WEGMANS FOOD MARKETS, INC., Defendants, Case No. 19 Civ. 9227 (LLS)
(S.D. N.Y.), Judge Louis L. Stanton of the U.S. District Court for
the Southern District of New York granted Defendant Wegmans' motion
to dismiss Plaintiffs Steele and Arriola's first amended complaint
("FAC") pursuant to Federal Rules of Civil Procedure 12(b)(6) and
9(b).
The Plaintiffs sue Wegmans, a grocery store chain and food
manufacturer, for claimed deceptive acts or practices in violation
of federal, New York, and Pennsylvania statutes and standards,
false advertising, common-law negligent misrepresentation, fraud,
breach of warranty and unjust enrichment.
Nevertheless, the case comes down to two decisive questions: (i)
whether the label on the ice cream container misrepresented the
container's contents, and (ii) whether the elaborate gas
chromatography-mass spectrometry analysis the Plaintiffs' chemists
performed showed there was fraudulently little vanilla bean extract
in the ice cream.
Judge Stanton opines that the answers to each of those questions
being No, will disimiss the complaint.
The Plaintiffs contend they were deceived by Wegmans to believe
that ice cream they bought from Wegmans got its vanilla flavor from
vanilla beans or vanilla bean extract, when in fact the ice cream
got most of its vanilla flavor from some non-vanilla source. Their
claim that Wegmans' ice cream is flavored by artificial flavors,
not natural vanilla flavor, has no factual support, since the test
performed does not show that. They claim that Wegmans' label is
misleading under the law requires some explanation, but also fails.
The Plaintiffs assume that buyers take it for granted that natural
vanilla flavor is wholly or largely derived from vanilla beans, and
argue that if the predominant component of the flavoring is not
from beans or vanilla extract, the customer is misled. They point
to Mantikas v. Kellogg Co., where the Cheez-It crackers box
proclaimed Whole Grain in large type; there was in fact a small
amount of whole grain in the crackers, but they were mainly made of
less nutritious enriched white flour.
The instant case is different. The Wegmans container does not
mention vanilla beans, or bean extract, and even if vanilla or bean
extract is not the predominant factor, if the sources of the flavor
are natural, not artificial, it is hard to see where there is
deception. The ice cream is vanilla flavored. The sources of the
flavor are natural, not artificial. In the case, it is conceded
that there is vanilla in the product; it is claimed to be de
minimis. No objective facts in this respect are pled. Hence, the
Plaintiffs' authority for that argument is its alleged experts'
test.
The subject-matter of the discussion of the Plaintiffs' mass
spectrometry analysis is four chemical compounds that are present
in vanilla beans in small amounts ("marker compounds") . They are
vanillin (1.3% to 1.7% present), p-hydroxybenzaldehyde (a tenth of
a percent), vanillic acid (a twentieth of a percent), and
p-hydroxybenzoic acid (three hundredths of a percent). The latter
three proportions are tiny, from 6% to .2% as much as the
vanillin.
The analysis of the ice cream picked up vanillin at 0.787 parts per
million, and did not detect any of the smaller three markers. The
Plaintiffs argue it means there is too little vanilla bean extract
in the ice cream, and the flavoring must come from non-vanilla bean
sources.
But, the Judge holds that it is not a self-evident conclusion. The
fact that the analysis disclosed only the vanillin may simply show
that the test was not sensitive enough to detect the markers with
smaller profiles in the bean. The test may just confirm that the
vanilla flavor derives solely from vanilla extract. That is left
to speculation. What is needed is to test, not for the universe of
the ice cream's contents, but specifically for the presence of the
particular chemical markers. The test performed under the
Plaintiffs' instructions is as inapplicable to the action as are
the federal specifications for ice cream flavorings, which are not
enforceable by private plaintiffs.
Based on the foregoing, Judge Stanton concludes that the Amended
Complaint does not state a claim of misrepresentation regarding the
flavoring of Wegmans Vanilla Ice Cream and is dismissed.
A full-text copy of the District Court's July 14, 2020 Opinion &
Order is available at https://bit.ly/3kwsm38 from Leagle.com.
WESTERN DENTAL: Settlement in Bulette Class Suit Has Final Approval
-------------------------------------------------------------------
In the case, RACHEL BULETTE, individually and on behalf of all
others similarly situated, Plaintiff, v. WESTERN DENTAL SERVICES
INC., et. al, Defendants, Case No. 3:19-cv-00612-MMC (N.D. Cal.),
Magistrate Judge Maxine M. Chesney of the U.S. District Court for
the Northern District of California granted the Plaintiff's motion
for Final Approval of the Class-Action Settlement and motion for
attorneys' fees and expenses and a service award to Class
Representative.
Magistrate Judge Chesney finds that the proposed Settlement is
fair, reasonable, and adequate.
Pursuant to Fed. R. Civ. P. 23, and for purposes of the settlement
only, the Settlement Class consists of all regular users or
subscribers to numbers assigned to wireless carriers to which a
text message was attempted using RevSpring's TalkSoft platform,
after RevSpring received a text message containing the word stop
from such number in response to a Western Dental text message,
within four years of Feb. 4, 2019.
The plan for distribution of the Settlement Fund is fair and
equitable, the Court finds. The Settlement Administrator will
perform the distribution to Settlement Class Members following the
process set forth in the Settlement Agreement without further order
of the Court.
Having considered the motion for a service award and the additional
information provided by the Class Counsel at the hearing, the Judge
awarded the class representative service award in the amount of
$5,000 payable to the Plaintiff. The payment will be pursuant to
the terms of the Settlement Agreement.
Having also considered the Class Counsel's Motion for an Award of
Attorneys' Fees and Expenses and considering the percentage of the
fund, the quality of representation provided and the results
obtained, as well as a number of other factors, the Judge awarded
the Class Counsel attorneys' fees of $2,425,000 and costs and
expenses of $12,919.49. All payments of attorneys' fees and
reimbursement of expenses to the Class Counsel in the Action will
be made from the Settlement Fund, and the Released Parties will
have no liability or responsibility for the payment of the Class
Counsel's attorneys' fees or expenses except as provided in the
Settlement Agreement.
A full-text copy of the District Court's July 17, 2020 Order is
available at https://bit.ly/3dV9RTg from Leagle.com.
WRAP TECHNOLOGIES: Faces Mercurio Suit Over Stock Price Drop
------------------------------------------------------------
JOSEPH MERCURIO, Individually and on Behalf of All Others Similarly
Situated, v. WRAP TECHNOLOGIES, INC., DAVID NORRIS, JAMES A.
BARNES, and THOMAS SMITH, Case No. 2:20-cv-09030 (C.D. Cal., Oct 1,
2020), seeks to recover compensable damages caused by the
Defendants' violations of the federal securities laws under the
Securities Exchange Act of 1934.
The case is a federal securities class action on behalf of a class
consisting of all persons and entities that purchased or otherwise
acquired Wrap securities between July 31, 2020 and September 23,
2020, inclusive.
On December 3, 2019, Wrap announced that the Los Angeles Police
Department (LAPD) had decided to train its officers on the BolaWrap
and employ 200 devices in the field for a trial, pilot program. On
September 23, 2020, while the market was open, White Diamond
Research published a report entitled "Wrap Technologies: Disastrous
LAPD BolaWrap Pilot Program Results, No Evidence These Have Been
Communicated To Investors" alleging, among other things, that the
Company's trial pilot program with the LAPD was a disaster, and
that the Company had not disclosed the results to investors. On
this news, Wrap's stock price fell $2.07 per share, or 25.43%, to
close at $6.07 per share on September 23, 2020, damaging investors.
The Plaintiff contends that as a result of the Defendants' wrongful
acts and omissions, and the precipitous decline in the market value
of the Company's securities, Plaintiff and other Class members have
suffered significant losses and damages.
The Plaintiff purchased Company's securities at artificially
inflated prices during the Class Period and was damaged upon the
revelation of the alleged corrective disclosure.
Wrap purports to develop security products for law enforcement and
security personnel, including the BolaWrap 100, a hand-held remote
restraint device that discharges an eight-foot bola style Kevlar
tether to entangle a subject at a range of 10-25 feet.
The Individual Defendants are directors and officers of the
company.[BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
Facsimile: (917) 463-1044
- and -
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Telephone: (212) 697-6484
Facsimile: (212) 697-72
XTREME DRILLING: Final OK of $850,000 Blanco Deal Partly Granted
----------------------------------------------------------------
In the case, JOSE BLANCO, on behalf of himself and all similarly
situated persons, Plaintiff, v. XTREME DRILLING AND COIL SERVICES,
INC., a Texas corporation, Defendant, Civil Action No.
16-cv-00249-PAB-SKC (D. Colo.), Judge Philip A. Brimmer of the U.S.
District Court for the District of Colorado granted in part and
denied in part the parties' the Joint Motion for Final Approval of
Class Action Settlement.
The case arises out of a wage dispute. The Defendant is an
oilfield drilling company. The Plaintiff claims that he and other
similarly situated employees of the Defendant were not paid full
compensation for overtime hours worked and failed to receive paid
rest breaks required by state law.
The Plaintiff filed a class action complaint on Feb. 2, 2016. He
asserts claims for violation of the Colorado Wage Claim Act, the
Colorado Minimum Wage Act, and breach of contract. On March 8,
2017, the Court granted the Defendant summary judgment on the
Plaintiff's Colorado Wage Claim Act Claim.
On March 29, 2019, the parties filed a joint motion for preliminary
approval of a class action settlement. Acting with the consent of
the parties, Magistrate Judge S. Kato Crews granted the motion on
March 8, 2020 and approved the parties' plan to disseminate notice
of the settlement to the class members. On May 26, 2020, the
parties moved for final approval of the class action settlement,
including an award of attorney's fees and costs to the Plaintiff's
counsel.
The proposed settlement agreement defines the settlement class as:
all non-exempt drilling employees of the Defendant who were based
in Colorado, worked at any time between Feb. 2, 2013 and Jan. 24,
2019, and who received additional payments for bonuses, oil-based
mud payments, training pay, or per diems that were not included in
the calculation of such employee's regular rate of pay.
Under the proposed settlement agreement, the Defendant agrees to
pay a total of $850,000. The settlement funds are to be
distributed as follows: (1) service award of 24,000 to the
Plaintiff; (2) payments to class counsel of up to 38% ($323,000) of
the settlement amount, which equals $323,000; (3) payment of the
class members' payroll taxes; and (4) pro rata payments to the
settlement class members of all remaining funds based on a formula
set out in the settlement agreement to be calculated by the
settlement administrator.
The Plaintiff's counsel seeks $323,000 in attorney's fees and
costs, or 38% of the total settlement amount. The Class counsel
represents that the case required a significant time commitment on
a contingent basis, and that the counsel's firm incurred $4,715 in
costs related to the litigation.
On review, Judge Brimmer concludes that (i) the notice provided to
class members met the requirements of Rule 23(e) and due process;
(ii) the settlement is fair, reasonable, and adequate; (iii) the
lodestar crosscheck supports the reasonableness of the requested
fee; and (iv) the enhancement payment is reasonable compensation
for the named Plaintiff's participation in the lawsuit.
For these reasons, Judge Brimmer granted in part and denied in part
the Joint Motion for Final Approval of Class Action Settlement.
A full-text copy of the District Court's July 17, 2020 Order is
available at https://bit.ly/3myctKb from Leagle.com.
YALE: Files Motion to Dismiss Tuition Refund Class Action
---------------------------------------------------------
Rose Horowitch, writing for Yale News, reports that on Sept. 25,
Yale filed a motion to dismiss a class-action lawsuit from Jon
Michel '22 that claims the University should partially refund
tuition after switching to online classes for much of the spring
2020 term.
Yale's motion was filed in U.S. District Court in Connecticut. It
marks the University's official response to the class-action suit
brought against it in late July. In Michel's original complaint, he
alleged that the University breached its contract and was unjustly
enriched by switching to online classes without refunding students'
tuition. But in its response, Yale claimed that courts cannot judge
the academic experience a school offers.
"Put simply, no breach of contract arises simply because a
plaintiff subjectively feels 'that the education was not good
enough,'" Yale's response reads.
The University's response comes in the context of courts across the
country hearing numerous other cases similar to Michel's, including
lawsuits against Ohio State, Columbia and Brown. These cases
foreshadow how the one against Yale may play out.
Now, Michel's lawyers have until Oct. 16 to either amend their
original complaint or file an opposition to Yale's motion to
dismiss the claim. Michel's counsel is currently debating this
decision, Yve Golan, one of the lawyers representing Michel, told
the News.
After the deadline passes, Judge Janet C. Hall of the U.S. District
Court for the District of Connecticut will decide whether there is
a legal basis for the complaint, University Spokesperson Karen
Peart wrote in an email to the News.
According to Golan, other Yale College and graduate school students
have approached her firm to serve as class representatives to the
suit against the University. The firm could add these students to
an amended complaint, Golan said.
Michel's suit concedes that Yale made the correct decision in
switching to remote learning when the coronavirus pandemic hit, but
claims that the Zoom-based classes were of lesser quality, and
therefore worth less, than in-person education. Michel's suit is on
behalf of all undergraduate and graduate students who paid tuition
to Yale in the spring 2020 semester.
The specific claims are that Yale breached its contract by not
offering the full "Yale experience," including in-person
instruction and access to facilities, that students expect when
they enroll. The lawsuit claims that Yale was "unjustly enriched"
by keeping students' tuition payments after offering them online
classes, for which the University typically charges less.
However, University officials disagree. According to Peart, the
University acted according to public health guidelines and refunded
students for services they could not use.
"Yale acted to protect the community by moving quickly and
effectively to online classes, which allowed students to complete
the semester safely. Yale also provided students with prorated
refunds for the room and board that they were unable to use," Peart
wrote in an email to the News. "Yale believes the lawsuit is
legally and factually baseless, and it will offer a vigorous
defense."
In its response, Yale cited the case Gupta v. New Britain General
Hospital. In this case, the Connecticut Supreme Court ruled that
the court cannot pass judgment on the academic quality of a school.
According to Yale's response, Michel's complaint asks the Court to
judge whether Yale's "educational experience" during the pandemic
was "the same or just as good as" before.
"Plaintiff alleges that Yale's decision to move classes online
during the global pandemic breached its contract with students and
unjustly enriched Yale," the University's motion reads. "Those
claims fail at the outset because Connecticut law does not permit
second-guessing how a university teaches its courses."
To Michel's "unjust enrichment" allegation, the University wrote
that it provided students with an education and granted them course
credit. Additionally, Yale incurred the usual costs of providing an
education as well as additional costs to sustain educational
offerings during the pandemic, the University's motion reads.
In her opinion, Golan said, Yale's response does not have merit.
"This is not an educational malpractice case," Golan said. "This
is, bottom line, a pure breach of contract case."
She likened the situation to a gym temporarily closing during the
pandemic and canceling membership fees.
"Now my gym has partially opened up but it doesn't have as many
classes as it did so it doesn't charge me the full membership
rate," Golan said. "One party can't unilaterally change a contract
and make the other party still pay under the original terms."
The University is represented by lawyers at Wiggin and Dana LLP.
[GN]
YAYYO INC: Pomerantz LLP Alerts of Securities Class Action
----------------------------------------------------------
Pomerantz LLP on Oct. 1 disclosed that a class action lawsuit has
been filed against YayYo, Inc. ("YayYo" or the "Company") (OTCMKTS:
YAYO) and certain of its officers. The class action, filed in
United States District Court for the Central District of
California, and docketed under 20-cv-08591, is on behalf of a class
consisting of all persons other than Defendants who purchased or
otherwise, acquired YayYo common stock pursuant and/or traceable to
the registration statement and related prospectus (collectively,
the "Registration Statement") issued in connection with YayYo's
November 13, 2019, initial public offering (the "IPO" or
"Offering"), seeking to recover compensable damages caused by
Defendants' violations of the Securities Act of 1933 (the
"Securities Act").
If you are a shareholder who purchased YayYo common stock pursuant
and/or traceable to the registration statement and related
prospectus (collectively, the "Registration Statement") issued in
connection with YayYo's November 13, 2019, IPO, you have until
November 9, 2020, to ask the Court to appoint you as Lead Plaintiff
for the class. A copy of the Complaint can be obtained at
www.pomerantzlaw.com. To discuss this action, contact Robert S.
Willoughby at newaction@pomlaw.com or 888.476.6529 (or
888.4-POMLAW), toll-free, Ext. 7980. Those who inquire by e-mail
are encouraged to include their mailing address, telephone number,
and the number of shares purchased.
YayYo, Inc., through its subsidiaries, engages in developing
vehicle rental platform in the United States. It operates Rideshare
Platform, an online peer-to-peer booking platform that rents
standard passenger vehicles to self-employed ridesharing drivers;
and manages a fleet of standard passenger vehicles to be rented
directly to drivers in the ridesharing economy through the
Rideshare Platform.
The Complaint alleges that the Registration Statement featured
false and/or misleading statements and/or failed to disclose that:
(1) defendant Ram El-Batrawi ("El-Batrawi") continued to exercise
supervision, authority, and control over YayYo and was intimately
involved, on a day-to-day basis, with the business, operations, and
finances of the company, including assisting the Underwriter
Defendants in marketing YayYo's IPO; (2) defendant El-Batrawi never
sold the 12,525,000 "Private Shares" and continued to own a
controlling interest in YayYo despite the NASDAQ's insistence that
he retain less than a 10% equity ownership interest in connection
with the listing agreement; (3) defendants promised certain
creditors of YayYo that in exchange to their agreeing to purchase
shares in the IPO – in order to permit the Underwriter defendants
to close the IPO – YayYo would repurchase those shares after the
IPO; (4) defendants intended to repurchase shares purchased by
creditors of YayYo in the IPO using IPO proceeds: (5) YayYo owned
its former President, CEO, and Director a half of million dollars
at the time of the IPO; (6) YayYo owed SRAX, Inc. (formerly Social
Reality, Inc.) $426,286 in unpaid social media costs, most of which
was more than a year overdue as payment had been delayed while
YayYo attempted to complete its IPO; and (7) as a result of the
foregoing, defendants' statements about the Company's business,
operations, and prospects were materially false and misleading
and/or lacked a reasonable basis at all relevant times.
On January 13, 2020, YayYo filed with the Securities and Exchange
Commission ("SEC") a Form 8-K announcing that "[o]n January 10,
2020, YayYo Inc. [] entered into an Executive Employment Agreement
[] with the Company's Chief Executive Officer, Jonathan Rosen
("Rosen"), pursuant to which Mr. Rosen will continue to serve as
the Company's Chief Executive Officer for one year or until
terminated in accordance with the Agreement."
On January 24, 2020, YayYo filed an action for declaratory judgment
and permanent injunction against Defendant El-Batrawi in the
Superior Court of the State of California, County of Los Angeles,
Case No. 20STCP00309, alleging in pertinent part: Despite leaving
the Company following concerns from NASDAQ regarding his
involvement in the day-to-day operations of YayYo in September
2019, Defendant [El-Batrawi] has engaged in a continuous course of
actions misrepresenting himself as affiliated with, speaking on
behalf of, and authorized or empowered by YayYo. In so doing,
Defendant [El-Batrawi] has purported to bind the Company to
contracts, direct its employees, change its website, and event to
attempted to sell the Company to its competitors.
In a declaration filed with YayYo's complaint in support of a
temporary restraining order, Defendant Rosen testified that despite
having promised in September 2019 in connection with his
resignation to have "no formal or informal affiliation between the
Company and [El-Batrawi], expect [sic] for [his] minority ownership
(less than 10%) in the Company" (emphasis in original), "[Defendant
El-Batrawi] [had] continue[d] to operate and hold himself out as if
a director or officer of YayYo, or as an otherwise authorized
representative of the same." Defendant Rosen further testified that
despite the Registration Statement having expressly stated that
Defendant El-Batrawi had already sold the 12,525,000 shares of
YayYo prior to the IPO, in reality "Defendant El-Batrawi ha[d]
failed and/or refused to sell his shares of stock in the Company .
. . ." Defendant Rosen further admitted this had all been going on
since September 2019, well before the IPO, including testifying in
pertinent part that "[s]ince [September 2019], Defendant El-Batrawi
has engaged in a continuous and escalating pattern of behavior
destructive to YayYo . . . ." Defendant Rosen testified that
Defendant El-Batrawi's misconduct between September 2019 and
January 2020 had included, among other things, contacting
competitors, suppliers, and vendors of YayYo and negotiating with
them as a representative of YayYo; meeting with financiers and
investment firms about investing in YayYo and claiming to represent
YayYo; hiring a public relations firm for YayYo and producing and
airing commercials for YayYo on the Fox Business Channel;
attempting to hire two marketing firms for YayYo; and directing
that changes be made to YayYo's website.
On January 27, 2020, YayYo filed a Form 8-K with the SEC announcing
that Defendants Jeffrey J. Guzy, Christopher Miglino, and Paul
Richter had been replaced as Board members and that Defendant Rosen
was no longer the CEO of YayYo.
On February 10, 2020, YayYo issued a press release entitled "YayYo,
Inc. Announces Intention to Voluntarily Delist Its Common Stock
From the NASDAQ Capital Market Effective February 20, 2020"
disclosing that the new Board would delist YayYo common stock from
the NASDAQ.
On February 11, 2020, SRAX filed a collection action against YayYo
in the Superior Court of the State of California for the County of
Los Angeles, Case No. 20STCV05559, alleging that SRAX had provided
media services to the Company dating back to 2018, and claiming
breach of contract and related causes of action. SRAX alleged that
YayYo then owed it $645,286—including $426,286 for services
rendered prior to time of the IPO. In its complaint, SRAX alleged
that YayYo claimed to be "unable to pay" for the services prior to
the IPO "apparently due to a delay in its [IPO]." Though the
invoices for the services attached to the complaint filed by SRAX
were signed by Defendant El-Batrawi, an email attached to the
complaint dated January 24, 2020 from Defendant Rosen stated that
other than $50,000 that had apparently been paid to SRAX from the
IPO proceeds on January 23, 2020, YayYo would be unable to pay the
rest of the outstanding bill until it obtained additional outside
financing.
On March 3, 2020, former YayYo President, CEO, and Director Anthony
Davis filed a complaint for damages, declaratory relief, failure to
pay wages in violation of labor code 201, et. seq., violation of
California's Unfair Competition Laws (Business & Professions Code
§ 17200, et seq.), breach of contract, intentional
misrepresentation and fraud, and promissory fraud against YayYo.
On April 28, 2020, FirstFire Global Opportunities Fund, LLC
("FirstFire") filed a complaint against underwriters for the IPO in
the U.S. District Court for the Southern District of New York, Case
No. l:20-cv-03327. Among other things, FirstFire alleges that the
Registration Statement used to conduct the IPO was materially false
and misleading because it concealed Defendant El-Batrawi's ongoing
control over the company and its IPO process. FirstFire further
alleges that when the underwriters for the IPO were unable to raise
the full $10 million required by NASDAQ to close the IPO, Defendant
El-Batrawi fabricated a $1.2 million commitment purportedly from a
trust, which turned out to be a lie. FirstFire also alleges that
the underwriters for the IPO and Defendant El-Batrawi solicited
creditors and shareholders to invest more money to close the IPO,
and "sought to sweeten the attraction of such further investment"
by agreeing that YayYo would "immediately" pay them back from the
IPO proceeds, an "unlawful act" that would "materially misrepresent
the Offering and fraudulently mislead investors[.]" FirstFire
further alleges that the underwriters for the IPO told investors
that YayYo planned to use the IPO proceeds to purchase vehicles, as
well as for general corporate purposes, including working capital
and sales and marketing activities, but that in reality, YayYo had
no intention to do so.
Since the IPO, and as a result of the disclosure of material
adverse facts omitted from the Company's Registration Statement,
YayYo's stock price has fallen significantly below its IPO price,
damaging Plaintiff and Class members.
As of the filing of this Complaint, YayYo's stock last closed at
$0.29 per share on September 17, 2020, representing a 92.75%
decline from the price the stock was offered at in the IPO.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com.
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com [GN]
[*] Luxembourg Minister Presents Class Action Draft Bill
--------------------------------------------------------
RTL reports that Paulette Lenert presented a draft bill for
class-action lawsuits. She conducted the presentation in her role
as minister for consumer protection.
While the new legal basis is set to be introduced throughout
Europe, the Grand Duchy will have a special clause to make the use
of third parties non-essential.
Class-action lawsuits have become a permanent topic of discussion
since the diesel scandal broke out for the first time. The law
adaptations are also set to facilitate extrajudicial settlements.
[GN]
[*] More Than 500 Pandemic-Related Class Actions Filed Since May
----------------------------------------------------------------
Michele Epstein, writing for PropertyCasualty360, reports that more
than 500 new class-action suits associated with the pandemic and
shutdown-related matters have been filed since May.
In late May, most states that had imposed stay-at-home orders or
shelter-in-place mandates to help prevent the spread of COVID-19
began to lift certain restrictions for many businesses. But until
state officials and health experts see significant improvements in
areas such as expanded testing, tracking of infected persons and
vaccine development, businesses must learn how to operate in a "new
normal" environment that includes adhering to specific reopening
guidelines. [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
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Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2020. All rights reserved. ISSN 1525-2272.
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