/raid1/www/Hosts/bankrupt/CAR_Public/201102.mbx
C L A S S A C T I O N R E P O R T E R
Monday, November 2, 2020, Vol. 22, No. 219
Headlines
2U INC: Bid to Dismiss Maryland Consolidated Suit Pending
3M CO: 1st Bellwether in Defective Earplug Suit Set for April 2021
3M CO: Agrees to Contribute $5MM to Provide Expanded Water Service
3M CO: Bid to Dismiss Amended Delaware Class Complaint Pending
3M CO: Class Cert. Bid in NY Suit Over Water Pollution Underway
3M CO: Petition for Writ of Mandamus in Consolidated Suit Pending
ABBEY ROAD: Fails to Pay Proper OT to Flaggers, Guzman Suit Claims
ACE HIGH: Conditional Cert. of Brand Ambassadors Class Sought
ADVANCED MICRO: Remaining Claims in Hauck Suit Dismissed
AGENT WALL: Misclassifies Construction Workers, Moran et al. Claim
ALLERGAN PLC: Beats Workers' ERISA Appeal Over Drug Price-fixing
ALLERGAN PLC: Court Denies Bid to Certify Class in Securities Suit
ALLIANT CREDIT: Wins Dismissal of Page Case
ALLSTATE INDEMNITY: Bid to Certify Class in Basher Suit Denied
AMAZON.COM INC: Denial of Arbitration Bid in Rittman Suit Affirmed
AMERICAN FINANCIAL: Davis Sues Over Unsolicited Text Messages
ANTHEM INC: Appeal in Express Scripts/Anthem ERISA Suit Pending
APPLE INC: Viglietti Sues to Recover Money Lost to Illegal Gambling
APPLE INC: Workman Sues to Recover Money Lost to Illegal Gambling
ASTRAZENECA PHARMA: EPPs Antitrust Suit Moved to Del. Dist. Ct.
ATLANTINC HOUSING: Resident Coordinators' Suit Wins Class Status
AURORA CANNIBAS: Pomerantz Law Announces Class Action
BAKER HUGHES: Continues to Defend Consolidated Shareholder Suit
BETHPAGE FEDERAL: Restrepo Sues Over Unfair Fees
BLACK TIE: Court Approves $145K Settlement in Bailey FLSA Suit
BLACKBAUD INC: Faces Bedell Class Action Over Data Breach
BOILERMAKER-BLACKSMITH: Reply Time to Class Cert. Bid Ended Oct. 31
BOSTON SCIENTIFIC: Settlement in Pelvic Mesh Device Case Gets OK
BRINKER INTERNATIONAL: Mediation in Data Breach Suit on Nov. 18
BUCKEYE INC: Morgan et al. Sue Over Failure to Properly Pay OT
CELLULAR CONNECTION: Pa. Employees Class Certified in Weirbach Case
CENTENE CORP: Ambetter Policies Related Suit Dismissed
CHIPOTLE MEXICAN: Bid for Rehearing En Banc in Ong Suit Denied
CHIPOTLE MEXICAN: Judgment in Ong Securities Fraud Suit Affirmed
CHURCHILL DOWNS: Fairness Hearing in Soileau Continued to Nov. 17
CHURCHILL DOWNS: Feb. 2021 Final Hearing on Kater Deal
CHURCHILL DOWNS: Feb. 2021 Final Hearing on Thimmegowda Accord
CJS SOLUTIONS: May Amend Reply in Borup Case to Clarify Defense
CKF ENTERPRISES: $595K Settlement in Ware Suit Gets Final Approval
COBB & FENDLEY: Bid to Certify Class in Leal FLSA Suit Now Moot
COMMUNITY HEALTH: Bid to Dismiss Padilla Suit Still Pending
COMMUNITY HEALTH: Final Settlement Approval Hearing on Nov. 30
COMMUNITY HEALTH: Tentative Settlement Reached in Kirk Suit
CONVERGENT OUTSOURCING: Rawls Sues to Recover Overtime Wages
CROWN CASTLE: Continues to Defend Securities Class Suits
CUBESMART LP: Torres Class Suit Seeks OT Pay for Managers
CULTURAL CARE: Court Narrows Claims in Mack Suit
DEKALB COUNTY SCHOOL: T.H. Suit Seeks to Certify Class & Subclass
DIEBOLD NIXDORF: Continues to Defend NY Consolidated Class Suit
DIRECT BUSINESS: Benitez Sues Over Unsolicited Telemarketing Acts
DISCOVER FINANCIAL: Bid to Compel Arbitration in B&R Suit Pending
EDISON INT'L: Bellwether Jury Trial Set for February 2021
EDISON INT'L: Woolsey Bellwether Jury Trial Set for June 2021
EL JOBITO: Fails to Properly Pay Overtime, Reyes Claims
ELMIRON: Faces Class Action in Canada Over Link to Vision Loss
ENTERPRISE FINANCIAL: Facing Parshall Putative Class Suit in Del.
EQUIFAX INC: Accord in Financial Institutions MDL Wins Final OK
EQUIFAX INC: Appeal from Class Cert. Order in Ontario Case Pending
EQUIFAX INC: Settlement in Pa. State Court Case Wins Final OK
EXACT SCIENCES: Genomic Defends Flannery Class Action
F&E AIRCRAFT: Fails to Pay Proper Wages Under FLSA, Vinasco Claims
FABFITFUN INC: Faces Gaston Class Action Suit Over Data Breach
FACEBOOK INC: Final Hearing on $650MM BIPA Suit Deal Set for Jan. 7
FIORELLA INSURANCE: Jones TCPA Suit Seeks to Certify Class
FIRST EAGLE: Tola Sues Over Revision in Cert. of Incorporation
FLUOR ENTERPRISES: Mixon FLSA Suit Seeks Conditional Class Cert.
FORSTER & GARBUS: Wins Summary Judgment in Musante FDCPA Suit
FRESH FARMS: Class Cert. Bid in Yarger Suit Denied as Premature
GARDNER-WEBB UNIVERSITY: Blind Can't Access Web Site, Hedges Says
GLADIATOR ENERGY: Pruneda Sues Over Unpaid Overtime Wages
GOODFELLA'S PIZZA: Vineyard Sues to Recover Unpaid Wages
GOOGLE LLC: Valencia-Torres Sues Over Illegal Mobile Gambling Games
GOOGLE: Herrera Sues Over Android Mobile App Market Monopoly
H & L PIZZA: Miller-Peppard Sues Over Unpaid Minimum and OT Wages
HANOVER INSURANCE: Fails to Reimburse Medical Expenses, MSP Claims
HARBOR FREIGHT: Jack Stand Lawsuit Filed After Recall
HEALTHCARE SERVICES: Continues to Defend E.D. Pa. Securities Suit
HEARING HELP: Laurie Loses Bid to Dismiss Hoffman TCPA Suit
HETERO USA: Faces KPH Suit Over Bystolic Market Conspiracy
HILLSHIRE BRANDS: Wargo Files False and Mislabeling Class Action
HOMEADVISOR INC: Court Orders Arbitration in Margulis TCPA Suit
HYATT HOTELS: Germak Sues Over Unlawful Restaurant Service Charge
HYUNDAI: Recalls Vehicles in United States to Brake-Fluid Leak
IBM CORP: Continues to Defend ERISA-Related Class Suit in New York
IMPINJ INC: Nov. 19 Hearing Set for $20MM Deal in Securities Suit
IMPINJ INC: Stipulation of Settlement Reached in Plymouth Suit
INNOVATIVE HEIGHTS: Loses Bid to Dismiss Stauffer Suit Under BIPA
JOHNSON & JOHNSON: Talc-Related Class Suit Ongoing in Illinois
JOHNSON & JOHNSON: XARELTO Sales Class Suit in Louisiana Ongoing
JUUL LABS: Can't Compel Arbitration in Bautista Wage Suit
K3 WORKS: DeJohn Seeks Minimum & OT Wages for Delivery Drivers
KANEX INC: Rakhmanin Seeks to Recover Unpaid Wages
LG ELECTRONICS: Court Narrows Claims in Hudock Suit
LIBRARY SYSTEMS: Khaled Seeks to Certify Settlement Class
MASIMO CORP: Physicians Healthsource's Suit Ongoing
MASTERCARD INC: Appeals in Point-of-Sale Acceptance Suit Ongoing
MASTERCARD INC: Class Cert. Bids in ATM Surcharge Suits Pending
MASTERCARD INC: Class Cert. Ruling in Shift Fraud Suit Appealed
MASTERCARD INC: Damage Class Settlement Approval Order Appealed
MASTERCARD INC: TCPA Class Suit in Florida Ongoing
MAYO CLINIC: Court Conditionally Certifies Mayo & FDCPA Classes
MDL 2742: Distribution Plan of Net Settlement Fund Approved
MERCED CITY, CA: Mag. Judge Recommends OK of McKinnon Suit Deal
MERLIN ENTERTAINMENTS: Court Sets Further Deadlines in Case Suit
MICHAEL ARAM: Website Inaccessible to Blind Users, Angeles Claims
MICHIGAN: Court Denies Howell's Class Certification Bid
MICHIGAN: Philpot's Request for Class Certification Denied
MICHIGAN: Plair's Class Certification Bid Denied
MICROSOFT CORP: Settlement in Canadian Class Suits Wins Final OK
MYOS RENS: Directors Breached Fiduciary Duties, Vigil Suit Claims
NAHAL REALTY: Rosales Sues Over Unpaid Minimum and Overtime Wages
NESTLE WATERS: Court Narrows Claims in Patane Suit
NEVADA: Appeals from Writ of Mandamus Ruling in Payne Dismissed
NEW YORK CITY TRANSIT: Robinson Suit Wins Class Status
NEW YORK: M.G. Gets OK to File Second Amended Complaint
NIKOLA CORP: Faces Malo Suit Over Inflated Common Stock Price
NORTHERN NATURAL: De Leon Seeks Conditional Class Certification
NS8: Laid Off Workers Sue Citing Lack of Advance Notice
O'FALLON, IL: Ill. App. Flips Summary Judgment in Saladrigas Suit
ODONATE THERAPEUTICS: Class Suit Over Tesetaxel Safety Ongoing
OHIO RENAL: Freeman Sues Over Unlawful OT Pay and Wage Statements
OTIS WORLDWIDE: Continues to Defend Darnis Putative Class Suit
PENNSYLVANIA: Jennings Suit Seeks to Certify Class of Residents
PETRO-HUNT: Fredericksburg Balks at Untimely Gas Royalty Payments
PHILIP MORRIS: Amended Complaint in Rebolledo Suit Not Yet Served
PHILIP MORRIS: Appeal in ADESF Class Suit vs. Unit Dismissed
PHILIP MORRIS: Continues to Defend Adams Class Suit in Canada
PHILIP MORRIS: Continues to Defend Securities Class Suit in NY
PHILIP MORRIS: Still Defends McDermid Class Action
POLARIS INC: 8th Cir. to Hear Appeal in Johannessohn Suit
POLARIS INC: Appeal in Sales & Product Liability Suit Pending
POLARIS INC: Deposition & Document Discovery in "Guzman" Ongoing
PORSCHE AG: Manipulates Emissions Testing Results, Del Barrio Says
PORTLAND GENERAL: Employees' Fund Sues Over Share Price Drop
PORTLAND GENERAL: Glancy Prongay Reminds of Nov. 2 Deadline
PRO FACADE: Hernandez Seeks to Recover Unpaid Wages Under FLSA
QUEST DIAGNOSTICS: Johnson and Rice Suits Consolidated
QUOTEQIZARD.COM LLC: Bid to Dismiss Perrong TCPA Suit Denied
RAVISSANICS BEAUTY: Dou Seeks Unpaid Wages & Overtime Under FLSA
RESTART USA: Faces Sosa Class Suit Over Wage & Hour Violations
RESTAURANTS BRANDS: Appeal in Suit Over Non-Compete Policy Pending
RESTAURANTS BRANDS: Latifi Suit Against TDL Group Corp. Ongoing
RESTAURANTS BRANDS: Suits Over Data Collection Underway in Canada
RICHARD ALEXANDER: Court Denies Bid to Certify Class as Moot
ROUNDPOINT MORTGAGE: Class Allegations in Elbert Suit Struck
RYDER SYSTEM: Putative Securities Class Suit in Florida Ongoing
SAFE HAVEN: Settlement in Martin FLSA Suit Gets Court Approval
SAN FRANCISCO: Underpays Registered Nurses, Silloway et al. Claim
SEABOARD CORP: Bid to Dismiss Pork Antitrust Litigation Denied
SEALED AIR: Bid to Nix UA Local 13's Securities Class Suit Pending
SEI INVESTMENTS: Suits Over SPTC Services to Stanford Ongoing
SELECT PORTFOLIO: Initial Approval of Class Settlement Sought
SIX FLAGS: Bid to Nix Electrical Workers Pension Fund Suit Pending
SIX FLAGS: Discovery Kingdom Employees' Suit Ongoing
SIX FLAGS: Settlement Reached in Refund Related Class Suits
SIX FLAGS: Suit Against Park Management Corp. Ongoing
SOUTHERN RESPONSE: Appeal Court Reduces Damages in Dodd Suit
SOUTHWEST AIRLINES: Appeal in Airfare-Related Class Suit Ongoing
SOUTHWEST AIRLINES: Bid to Dismiss Texas Securities Suit Pending
SOUTHWEST AIRLINES: Discovery Ongoing in Boeing MAX Defect Suit
SPECTRUM PHARMA: Court Enters Final Judgment in Securities Suit
STURM RUGER: Primus Group Suit v. Smith and Wesson Ongoing
SUDS & BUBBLES: Villatoro Sues Over Unpaid Wages Under FLSA
SUFFOLK COUNTY, NY: Court Certifies Class in Newkirk Suit v. Pierre
SUNERGY INC: Faces Abitbol Suit Over Unsolicited Telephone Calls
SUNNY & KP: Sanchez Suit Seeks Proper Wages
SURESCRIPTS: Pharmacies Antitrust Suit Dismissed Without Prejudice
TELIGENT INC: Oklahoma Police Pension Fund Seeks Class Status
TESCO CORP: 5th Circuit Affirms Heinze Suit Dismissal
TESLA INC: Appeal in Investor Suit Over Model 3 Production Pending
TH NYC RESTAURANT: Song Suit Seeks Unpaid Minimum, Overtime Wages
THAI SMILE: Tolentino Sues Over Unpaid Minimum and Overtime Wages
TOMS KING: Thomas FACTA Suit Dismissed Without Prejudice
TOWN SPORTS: Court Denies Class Certification Bid in "Kolomiichuk"
TOYOTA MOTOR: 9th Cir. Partly Reverses Dismissal of Heber Suit
TRANS-CONTINENTIAL: Stern Seeks to Certify FDCPA Classes
TRILOGY REAL: Dickinson Sues Over Unpaid Minimum and OT Wages
TRUFFA PIZZERIA: Ruiz Sues to Recover Unpaid Overtime Wages
UNDERGROUND ENTERPRISES: Blind Can't Access Website, Angeles Says
UNITED BEHAVIORAL: Court Dismisses LD Suit with Leave to Amend
UNITED STATES: Court Awards Atty's Fees & Costs in Haggart Suit
UNITED THERAPEUTICS: Class Suit by MSP Recovery Claims Ongoing
UNUM GROUP: Appeal in Tennessee Securities Class Suit Pending
VEECO INSTRUMENTS: Still Defends Wolther Class Suit in California
VITA-MIX CORP: 6th Cir. Vacates Atty.'s Fees Award in Linneman Suit
VITALE'S ITALIAN: 2nd Conditional Class Certification Bid OK'd
WAL-MART STORES: Has 45 Days to Finalize Neal Suit Settlement
WALGREEN CO: Caves Class Suit Settlement Gets Initial Approval
WB STUDIO: Fails to Pay Minimum & Overtime Wages, Ettedgui Claims
WHC LLC: Garcia Seeks Proper Overtime Pay Under FLSA
WILLOUGHBY REHAB: Cert. Ruling/Protective Order in Olmann Upheld
YGRENE ENERGY: Court Denies Complete Stay of Woolley Case
YHA AUSTRALIA: Accused of $15M Underpayment to 'Volunteers'
ZOAN MANAGEMENT: Arbitration Ruling in Gist Wage & Hour Suit Upheld
ZWILLING J.A.: Bishop Files ADA Suit in S.D. New York
*********
2U INC: Bid to Dismiss Maryland Consolidated Suit Pending
---------------------------------------------------------
2U, Inc. said in its Form 10-Q Report filed with the Securities and
Exchange Commission on October 27, 2020, for the quarterly period
ended September 30, 2020, that the motion to dismiss the
consolidated putative class action suit remains pending before the
United States District Court for the District of Maryland.
On August 7 and 9, 2019, Aaron Harper and Anne M. Chinn filed
putative class action complaints against the Company, Christopher
J. Paucek, the Company's CEO, and Catherine A. Graham, the
Company's former CFO, in the United States District Court for the
Southern District of New York, alleging violations of Sections
10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated
thereunder, based upon allegedly false and misleading statements
regarding the Company's business prospects and financial
projections.
The district court transferred the cases to the United States
District Court for the District of Maryland, consolidated them
under docket number 8:19-cv-3455 (D. Md.), and appointed Fiyyaz
Pirani as the lead plaintiff in the consolidated action.
On July 30, 2020, Mr. Pirani filed a consolidated class action
complaint ("CAC"), adding Harsha Mokkarala, the Company's former
Chief Marketing Officer, as a defendant. The CAC also asserts
claims under Sections 11, 12(a)(2), and 15 of the Securities Act of
1933, as amended, against Mr. Paucek, Ms. Graham, members of the
Company's Board of Directors, and the Company's underwriters, based
on allegations related to the Company’s secondary stock offering
on May 23, 2018.
The proposed class consists of all persons who acquired the
Company's securities between February 26, 2018 and July 30, 2019.
On October 27, 2020, defendants filed a motion to dismiss.
2U said, "The Company believes that the claims are without merit,
and it intends to vigorously defend against these claims. However,
due to the complex nature of the legal and factual issues involved,
the outcome of this matter is not presently determinable."
Headquartered in Landover, Maryland, 2U, Inc. provides cloud-based
SaaS solutions that address the needs of nonprofit colleges and
universities to attract, enroll and deliver quality education to
students. The 2U platform enables clients to offer full
undergraduate, graduate and doctoral programs online.
3M CO: 1st Bellwether in Defective Earplug Suit Set for April 2021
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3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 27, 2020, for the quarterly
period ended September 30, 2020, that the first bellwether case in
Defective Earplugs Suit is scheduled for April 2021.
Aearo Technologies sold Dual-Ended Combat Arms – Version 2
earplugs starting in about 2003.
3M acquired Aearo Technologies in 2008 and sold these earplugs from
2008 through 2015, when the product was discontinued. In December
2018, a military veteran filed an individual lawsuit against 3M in
the San Bernardino Superior Court in California alleging that he
sustained personal injuries while serving in the military caused by
3M's Dual-Ended Combat Arms earplugs - Version 2.
The plaintiff asserts claims of product liability and fraudulent
misrepresentation and concealment. The plaintiff seeks various
damages, including medical and related expenses, loss of income,
and punitive damages.
As of September 30, 2020, the Company is a named defendant in
approximately 3,000 lawsuits (including 14 putative class actions)
in various state and federal courts that purport to represent
approximately 12,000 individual claimants making similar
allegations.
In April 2019, the U.S. Judicial Panel on Multidistrict Litigation
granted motions to transfer and consolidate all cases pending in
federal courts to the U.S. District Court for the Northern District
of Florida to be managed in a multi-district litigation (MDL)
proceeding to centralize pre-trial proceedings. Discovery is
underway.
The plaintiffs and 3M filed preliminary summary judgment motions on
the government contractor defense.
In July 2020, based on the current record, the court granted the
plaintiffs’ summary judgment motion and denied the defendants'
summary judgment motion, ruling that plaintiffs’ claims are not
barred by the government contractor defense.
The court denied the Company's request to immediately certify the
summary judgment ruling for appeal to the U.S. Court of Appeals for
the Eleventh Circuit. The first bellwether case is scheduled for
April 2021.
3M said, "No liability has been recorded for these matters because
the Company believes that any such liability is not probable and
estimable at this time."
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Agrees to Contribute $5MM to Provide Expanded Water Service
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3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 27, 2020, for the quarterly
period ended September 30, 2020, that Georgia-Pacific and 3M have
agreed to contribute to a fund of approximately $5 million to
provide expanded municipal water service.
3M is a defendant, together with Georgia-Pacific as co-defendant,
in a putative class action in federal court in Michigan brought by
residents of Parchment, who allege that the municipal drinking
water is contaminated from waste generated by a paper mill owned by
Georgia-Pacific's corporate predecessor.
The defendants have moved to dismiss certain claims in the
complaint, and the parties have begun discovery on the remaining
claims.
As a result of discussions among Georgia-Pacific, 3M and
municipalities near Parchment, Georgia-Pacific and 3M have agreed
to contribute to a fund of approximately $5 million to provide
expanded municipal water service in the area.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Bid to Dismiss Amended Delaware Class Complaint Pending
--------------------------------------------------------------
3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 27, 2020, for the quarterly
period ended September 30, 2020, that the motion seeking dismissal
of the amended class action complaint in Delaware is pending.
In Delaware, 3M, together with several co-defendants, is defending
one putative class action brought by individuals alleging
Perfluorooctanoic acid (PFAS contamination of their water supply
resulting from the operations of local metal plating facilities.
Plaintiffs allege that 3M supplied PFAS to the metal plating
facilities. DuPont, Chemours, and the metal platers have also been
named as defendants.
This case has been removed from state court to federal court, and
plaintiffs have withdrawn its motion to remand to state court and
filed an amended complaint.
3M has filed a motion to dismiss the amended complaint.
No further updates were provided in the Company's SEC report.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Class Cert. Bid in NY Suit Over Water Pollution Underway
---------------------------------------------------------------
3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 27, 2020, for the quarterly
period ended September 30, 2020, that the motion for class
certification filed in the putative class action suit filed before
the U.S. District Court for the Northern District of New York
remains pending.
In New York, 3M is defending 41 individual cases and one putative
class action filed in the U.S. District Court for the Northern
District of New York and four additional cases filed in New York
state court against 3M, Saint-Gobain Performance Plastics Corp.
(Saint-Gobain), Honeywell International Inc. and E.I. DuPont De
Nemours and Co. (DuPont).
The plaintiffs allege that 3M manufactured and sold
Perfluorooctanoic acid (PFOA) that was used for manufacturing
purposes at Saint-Gobain's and Honeywell's facilities located in
the Village of Hoosick Falls and the Town of Hoosick.
The plaintiffs claim that the drinking water around Hoosick Falls
became contaminated with unsafe levels of PFOA due to the
activities of the defendants and allege that they suffered bodily
injury due to the ingestion and inhalation of PFOA.
The plaintiffs seek unstated compensatory, consequential, and
punitive damages, as well as attorneys' fees and costs.
3M has answered the complaints in these cases, which are now
proceeding through discovery. The plaintiffs in the putative class
action have moved for class certification.
3M is also defending eight additional cases in New York filed by
Nassau County drinking water providers in the U.S. District Court
for the Eastern District of New York. The plaintiffs in these cases
allege that 3M, DuPont, and additional unnamed defendants are
responsible for the contamination of plaintiffs’ water supply
sources with various PFAS compounds. DuPont's motion to transfer
these cases to the AFFF MDL was denied in March 2020.
These cases are in the preliminary stages of litigation.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Petition for Writ of Mandamus in Consolidated Suit Pending
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3M Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 27, 2020, for the quarterly
period ended September 30, 2020, that the defendants' petition for
writ of mandamus to the U.S. Court of Appeals for the Third Circuit
in the consolidated putative class action suit initiated by Heavy &
General Laborers' Locals 472 & 172 Welfare Fund, is pending.
In July 2019, Heavy & General Laborers' Locals 472 & 172 Welfare
Fund filed a putative securities class action against 3M Company,
its former Chairman and CEO, current Chairman and CEO, and current
CFO in the U.S. District Court for the District of New Jersey.
In August 2019, an individual plaintiff filed a similar putative
securities class action in the same district. Plaintiffs allege
that defendants made false and misleading statements regarding 3M's
exposure to liability associated with PFAS, and bring claims for
damages under Section 10(b) of the Securities Exchange Act of 1934
and SEC Rule 10b-5 against all defendants, and under Section 20(a)
of the Securities and Exchange Act of 1934 against the individual
defendants.
In October 2019, the court consolidated the securities class
actions and appointed a group of lead plaintiffs.
In January 2020, the defendants filed a motion to transfer venue to
the U.S. District Court for the District of Minnesota. In August
2020, the court denied the motion to transfer venue, and in
September 2020, the defendants filed a petition for writ of
mandamus to the U.S. Court of Appeals for the Third Circuit.
The suit is in the early stages of litigation.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
ABBEY ROAD: Fails to Pay Proper OT to Flaggers, Guzman Suit Claims
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SAUL GUZMAN, on behalf of himself and others similarly situated v.
ABBEY ROAD CONTROL, INC., Case No. 3:20-cv-01877-JPW (M.D. Pa.,
Oct. 12, 2020) arises from the Defendant's unlawful conduct in
violation of the Fair Labor Standards Act and the Pennsylvania
Minimum Wage Act.
The complaint alleges that the Defendant acted willfully and with
reckless disregard of clearly applicable federal and state
provisions in paying the Plaintiff and other collective members
straight-time compensation for some of their hours worked over 40
per week.
The Plaintiff was employed by the Defendant as a flagger during the
three-year period relevant to this lawsuit.
Abbey Road Control, Inc. owns and operates a business known as
"Traffic Control" that provides, inter alia, "flagging" services at
road construction sites.[BN]
The Plaintiff is represented by:
Peter Winebrake, Esq.
WINEBRAKE & SANTILLO, LLC
715 Twining Road, Suite 211
Dresher, PA 19025
Telephone: (215) 884-2491
E-mail: pwinebrake@winebrakelaw.com
ACE HIGH: Conditional Cert. of Brand Ambassadors Class Sought
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In the class action lawsuit captioned as MAURICE EYO, on behalf of
himself and all others similarly situated, v. ACE HIGH MARKETING,
LLC, Case No. 1:20-cv-01018-AT (N.D. Ga.), the Plaintiff asks the
Court for an order:
1. conditionally certifying a putative class of:
"Brand Ambassadors employed by Defendant Ace High
Marketing, LLC ("Ace High" or "Defendant")";
2. authorizing herself to proceed as a collective action
under 29 U.S.C. section 216(b) on behalf of Plaintiffs and
other similarly situated employees and former employees;
3. directing Ace High to provide Plaintiff's counsel with
contact information for the putative collective class to
facilitate notice and so that additional Brand Ambassadors
can be promptly notified of their right toC participate in
this lawsuit; and
4. approving the form of notice to the putative collective
class.
Ace High is a premier nationwide event staffing agency.
A copy of the Plaintiffs' motion for conditional certification is
available from PacerMonitor.com at https://bit.ly/3lxyeJr at no
extra charge.[CC]
The Plaintiff is represented by:
Andrew Lampros, Esq.
Gordon Van Remmen, Esq.
Brittany A. Barto, Esq.
ALL & L AMPROS, LLP
400 Galleria Pkwy SE, Suite 1150
Atlanta, GA 30339
Telephone: (404) 876-8100
Facsimile: (404) 876-3477
E-mail: alampros@hallandlampros.com
gordon@hallandlampros.com
ADVANCED MICRO: Remaining Claims in Hauck Suit Dismissed
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Advanced Micro Devices, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 26, 2020, that the
district court has dismissed the remaining claims in the
consolidated Diana Hauck et al. v. AMD, Inc., with prejudice.
Since January 19, 2018, three putative class action complaints have
been filed against the Company in the United States District Court
for the Northern District of California: (1) Diana Hauck et al. v.
AMD, Inc., Case No. 5:18-cv-0047, filed on January 19, 2018; (2)
Brian Speck et al. v. AMD, Inc., Case No. 5:18-cv-0744, filed on
February 4, 2018; and (3) Nathan Barnes and Jonathan Caskey-Medina,
et al. v. AMD, Inc., Case No. 5:18-cv-00883, filed on February 9,
2018.
On April 9, 2018, the court consolidated these cases and ordered
that Diana Hauck et al. v. AMD, Inc. serve as the lead case. On
June 13, 2018, six plaintiffs (from California, Louisiana, Florida
and Massachusetts) filed a consolidated amended complaint alleging
that the Company failed to disclose its processors' alleged
vulnerability to Spectre.
Plaintiffs further allege that the Company's processors cannot
perform at their advertised processing speeds without exposing
consumers to Spectre, and that any "patches" to remedy this
security vulnerability will result in degradation of processor
performance.
The plaintiffs seek damages under several causes of action on
behalf of a nationwide class and four state subclasses (California,
Florida, Massachusetts and Louisiana) of consumers who purchased
the Company's processors and/or devices containing AMD processors.
The plaintiffs also seek attorneys' fees, equitable relief and
restitution.
Pursuant to the court's order directing the parties to litigate
only eight of the causes of action in the consolidated amended
complaint initially, the Company filed a motion to dismiss on July
13, 2018. On October 29, 2018, after the plaintiffs voluntarily
dismissed one of their claims, the court granted the Company's
motion and dismissed six causes of action with leave to amend.
The plaintiffs filed their amended consolidated complaint on
December 6, 2018. On January 3, 2019, the Company again moved to
dismiss the subset of claims currently at issue. On April 4, 2019,
the court granted the Company's motion and dismissed all claims
currently at issue with prejudice. On May 6, 2019, the court
granted the parties' stipulation and request under Fed. R. Civ. P.
54(b) to enter a partial final judgment and certify for appeal the
court's April 4, 2019 dismissal order, and on that same date, the
plaintiffs voluntarily dismissed without prejudice their remaining
claims pursuant to an agreement whereby, subject to certain terms
and conditions, the Company agreed to toll the statute of
limitations and/or statute of repose.
On May 30, 2019, the plaintiffs filed a Notice of Appeal with the
U.S. Court of Appeals for the Ninth Circuit. On May 15, 2020, the
Ninth Circuit affirmed the district court's ruling dismissing the
subset of claims currently at issue against the Company.
On August 14, 2020, the district court dismissed the remaining
claims with prejudice.
Advanced Micro Devices, Inc. operates as a semiconductor company
worldwide. The company operates in two segments, Computing and
Graphics; and Enterprise, Embedded and Semi-Custom. Advanced Micro
Devices, Inc. was founded in 1969 and is headquartered in Santa
Clara, California.
AGENT WALL: Misclassifies Construction Workers, Moran et al. Claim
------------------------------------------------------------------
DOUGLAS MORAN and YOLEISSY MANSFARROL, individually and on behalf
of themselves and others similarly situated, Plaintiffs v. AGENT
WALL SYSTEMS, INC., and B&A CONSTRUCTION SERVICES, INC.,
Defendants, Case No. 3:20-cv-00823-HEH (E.D. Va., October 22, 2020)
is a collective and class action complaint brought against the
Defendants for their alleged unlawful policies, practices, and
procedures in violations of the Fair Labor Standards Act, the
Virginia Wage Payment Law, and the Virginia Misclassification Law.
The Plaintiffs were employed by the Defendants as construction
workers at the Defendants' Fine Arts Center of Christopher Newport
University in Newport News, Virginia. Plaintiff Moran began working
for the Defendants from approximately June 2020 to October 2020,
while Plaintiff Mansfarroll has worked for the Defendants since
August 2019.
The Plaintiffs claim that they were misclassified by the Defendants
as independent contractors. As a result, the Defendant did not pay
them overtime premiums at the rate of one and one-half times for
hours they worked over 40 in a week despite frequently working more
than that number of hours per week.
Agent Wall Systems, Inc. and B&A Construction Services, Inc. are
construction contractors at multiple construction projects around
Virginia. [BN]
The Plaintiffs are represented by:
Rachel Nadas, Esq.
Matthew K. Handley, Esq.
HANDLEY FARAH & ANDERSON PLLC
777 6th Street, NW – Eleventh Floor
Washington, DC 20001
Tel: (202) 899-2991
E-mail: rnadas@hfajustice.com
- and –
Matthew B. Kaplan, Esq.
THE KAPLAN LAW FIRM
1100 N Glebe Rd., Suite 1010
Arlington, VA 22201
Tel: (703) 665-9529
E-mail: mbkaplan@thekaplanlawfirm.com
ALLERGAN PLC: Beats Workers' ERISA Appeal Over Drug Price-fixing
----------------------------------------------------------------
Allergan PLC defeated a proposed class action by employees who said
they lost retirement savings because of the company's participation
in a generic drug price-fixing scheme, when the Third Circuit ruled
that the employees didn't present sufficient allegations of illegal
conduct.
The employees' claims under the Employee Retirement Income Security
Act are premised on the idea that the fiduciaries of their 401(k)
plan knew or should have known about the company's illegal conduct
and taken action to protect the plan from losses tied to a drop in
Allergan's stock price, the court said. But the employees didn't
allege that Allergan was charged with any criminal conduct, only
that the company received inquiries from members of Congress and
the Justice Department about potential price-fixing, the court
said.
"Because all of the plaintiffs' causes of action ultimately rest on
the premise that the defendants knew or should have known about
that supposed illegal conduct, the absence of allegations
sufficient to support the existence of it is fatal to each of their
claims," the court said.
The employees argued that nothing in ERISA requires them to prove
fraud. The Third Circuit disagreed, saying the employees "ignore
the premise of their own complaint."
"Regardless of whether ERISA requires proof of 'collusive or
fraudulent activity,' the plaintiffs specifically chose a theory of
liability predicated on Allergan's participation in an unlawful
price-fixing conspiracy," the court said. "In advancing that
theory, they assumed the burden of plausibly alleging both the
existence of a price-fixing conspiracy and Allergan's participation
in it."
Judge Kent A. Jordan wrote the decision. Judges Stephanos Bibas and
Richard L. Nygaard joined.
The employees are represented by Zamansky LLC; Stull, Stull &
Brody; Kantrowitz, Goldhamer & Graifman; Abraham, Fruchter &
Twersky; and Mark Levine of Pelham, N.Y. Allergan is represented by
Becker LLC and Duane Morris.
The case is In re Allergan ERISA Litig., 3d Cir., No. 18-2729, No.
18-2729 9/18/20.
To contact the reporter on this story: Jacklyn Wille in Washington
at jwille@bloomberglaw.com
To contact the editors responsible for this story: Rob Tricchinelli
at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at
ndatlowe@bloomberglaw.com [GN]
ALLERGAN PLC: Court Denies Bid to Certify Class in Securities Suit
------------------------------------------------------------------
In the class action lawsuit RE ALLERGAN PLC SECURITIES LITIGATION,
Case No. 1:18-cv-12089-CM-GWG (S.D.N.Y.), the Court entered an
order:
1. denying the Plaintiff's motion to certify a class; and
"all individuals and entities that purchased or otherwise
acquired Allergan preferred stock between January 30, 2017
and December 19, 2018 -- the period during which the
Defendants' alleged misstatements and omissions caused the
price of Allergan stock to artificially inflate"; and
2. granting in part and denying in part the Plaintiff's
motion to seal.
The Court said, "There is absolutely no question that this action
should proceed as a class action. It is a garden-variety securities
fraud suit, a type of action particularly well suited to class
treatment. What has become clear, however, is that the Lead
Plaintiff Boston Retirement System (BRS) is not the plaintiff who
should be controlling the representation of the class. Because BRS
is an inadequate representative of the class, its motion for class
certification is denied. The parties also move to seal certain
exhibits to their briefs in support of and in opposition to the
Plaintiff's motion for class certification. That motion is granted
in part and denied in part. In their memorandum of law in response
to Plaintiff's motion to file under seal, the Defendants ask the
Court to strike a subset of these exhibits on the basis of their
purported irrelevancy to the class certification motion. This is
not the proper way to make a motion. However, the only apparent use
of these exhibits was as citations in the "Relevant Facts" section
of the Plaintiff's reply brief, which, to Allergan, suggests that
they were added to the record for an improper purpose and so can be
stricken under Fed. R. Civ. P. 12(f) as "immaterial" matter.
Unfortunately for Allergan, that rule is specifically directed to
pleadings, not materials submitted in connection with a motion. The
Judge direct that the exhibits that Allergan seeks to strike from
the record be filed under seal, but only temporarily, until the
point at which they do become relevant to a decision the court
needs to make. At that point, they will almost certainly have to be
unsealed."
On April 19, 2019, the Lead Plaintiff BRS filed the Consolidated
Amended Class Action Complaint against the Defendant Allergan and
certain of its executives, alleging the that Defendants had made
materially false and misleading statements and omitted to make
necessary disclosures about an alleged link between breast
implant-associated anaplastic large cell lymphoma and the variety
of silicone-gel breast implants manufactured by the Company.
Allergan is a global pharmaceutical and medical products company
that develops, manufactures, and sells, among other things, breast
implants. Allergan's Natrelle BIOCELL line of breast implants is
the subject of this lawsuit. BIA-ALCL -- a rare form of
non-Hodgkin's lymphoma that typically occurs in the scar tissue
surrounding the breast implant -- was first reported in 1997.
A copy of the Court's decision and order denying BRS' motion for
class certification is available from PacerMonitor.com at
https://bit.ly/3dgWA7l at no extra charge.[CC]
ALLIANT CREDIT: Wins Dismissal of Page Case
-------------------------------------------
In the case, ALICIA M. PAGE, individually and on behalf of all
others similarly situated, Plaintiff, v. ALLIANT CREDIT UNION, et.
al, Defendants, Case No. 19-cv-5965 (N.D. Ill.), Judge Sharon
Johnson Coleman of the U.S. District Court for the Northern
District of Illinois, Eastern Division, granted in part with
prejudice and granted in part without prejudice Alliant's motion to
dismiss Page's complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).
This case was previously captioned ALICIA M. PAGE, CARMEL COOPER,
and CINDY MUNIZ, individually and on behalf of all others similarly
situated, Plaintiffs, v. ALLIANT CREDIT UNION and DOES 1-100,
Defendants, Case No. 1:19-cv-5965 (N.D. Ill.). However, in a
Memorandum Opinion and Order entered on May 18, 2020, a full-text
copy of which is available at https://tinyurl.com/ybqncq3r from
Leagle.com, Judge Coleman granted the defendant's motion to compel
arbitration in relation to named plaintiffs Carmel Cooper and Cindy
Muniz. The Court held that it will address defendant's motion to
dismiss in relation to plaintiff Alicia M. Page in a separate
ruling.
The Plaintiffs filed the present putative class action challenging
the practices of Defendant Alliant and Defendants DOES 1 through
100 in relation to charging overdraft or non-sufficient fund
("NSF") fees. Alliant is a non-profit, state-chartered credit
union that offers its members various financial services, including
checking accounts and debit cards. It relationship with its
members is governed by Account Agreement and Disclosures.
Page alleges that when processing transactions, Alliant has a
practice of assessing overdraft or NSF fees although a member's
account has sufficient funds to cover the transaction and that the
practice is contrary to the express terms of the Membership
Agreement. In addition, Page challenges Alliant's practice of
charging multiple overdraft fees for one purchase when retailers
re-submit the same transaction for Alliant's approval. The parties
agree that the Membership Agreement governing their dispute is the
November 2013 version.
In her complaint, Page contends that Alliant has breached the
Membership Agreement, breached the implied covenant of good faith
and fair dealing, and engaged in unfair and deceptive business
practices in violation of the Illinois Consumer Fraud and Deceptive
Business Practices Act ("ICFA"). She also brings quasi-contract
claims for equitable relief in the alternative to her breach of
contract claim.
Before the Court is Alliant's motion to dismiss Page's complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). Alliant's
first argument is that Page's state law claims are preempted by the
Truth in Savings Act ("TISA") because they are, in essence, claims
that Alliant failed to disclose certain fee practices. Although
several federal district courts have concluded that claims based on
a credit union's failure to disclose are preempted by TISA and/or
FCUA, true breach of contract and affirmative misrepresentation
claims are not federally preempted, even if the result of those
claims may affect a federal credit union's fee disclosures.
Examining Page's breach of contract claim, Page alleges that
Alliant has an overdraft practice that is contrary to the express
terms of the Membership Agreement. Under these allegations, Page
is bringing a "true" breach of contract claim, not a failure to
disclose claim as Alliant argues, especially because she highlights
the terms of the Membership Agreement that Alliant allegedly
breached. Therefore, Page's breach of contract claim is not
preempted.
In support of her ICFA claim, Page alleges that Alliant's practice
in relation to its overdraft fees constitutes both unfair and
deceptive business practices. She specifically asserts that
Alliant misrepresented the actual nature of its overdraft program
-- not that it failed to disclose certain aspects of its practice.
Because Page's claims are not preempted, Judge Coleman examines
whether she has adequately alleged her claims under the federal
pleading standards. First, Page alleges that Alliant has breached
the Membership Agreement by charging overdraft fees when a member's
account has sufficient funds and by assessing multiple overdraft
fees for a single transaction.
Judge Coleman finds that Page's reading of the agreement that all
of her funds should be accessible renders the term "available"
meaningless. Read in tandem, these sections of the Membership
Agreement spell out that not all funds are immediately available
for use or withdrawal. She therefore grants with prejudice this
aspect of Alliant's motion to dismiss.
Next, Page asserts that Alliant breached the Membership Agreement
by assessing multiple overdraft fees for a single transaction.
Judge Coleman holds that the language in the provisions does not
promise members that Alliant will charge just one overdraft fee per
transaction. Rather, in the context of the entire Membership
Agreement, Alliant charges its members an overdraft fee every time
a third-party payee presents an item for payment against
insufficient available funds. Page's stilted reading of the
Membership Agreement does not create any ambiguity. Her remaining
arguments are equally unpersuasive. The Judge cannot consider
extrinsic evidence if the agreement's language is unambiguous. She
therefore grants with prejudice this aspect of Alliant's motion to
dismiss.
Alliant contends that the Court must dismiss Page's claim for
breach of the implied covenant of good faith and fair dealing
because it is not a stand-alone claim under Illinois law. Judge
Coleman agrees. She therefore grants Alliant's motion to dismiss
this claim with prejudice.
Further, Alliant maintains that the Court must dismiss Page's
quasi-contract claims of unjust enrichment and "money had and
received" because there is a binding contract at issue. Alliant
correctly asserts, Page's quasi-contract claims cannot stand
because Page incorporated her breach of contract allegations into
her equitable claims. Under this precedent, Judge Coleman grants
Alliant's motion to dismiss Page's quasi-contract claims without
prejudice granting Page leave to amend her quasi-contract claims
accordingly.
Last, Alliant argues that Page has failed to plead a viable ICFA
claim because she did not allege any conduct separate and apart
from the breach of the Membership Agreement. In response, Page
identifies Alliant's use of what she calls the "artificial
available balance" or "accounting gimmicks" as deceptive and
unfair. She also states that Alliant affirmatively misrepresented
its fee practices and overdraft program. Not only are these
arguments intermingled with Page's breach of contract claims, she
fails to allege the alleged deceptive business practices under Rule
9(b)'s particularity requirements. Judge Coleman, hence, grants
Alliant's motion to dismiss Page's ICFA claim without prejudice.
On a final note, Page filed a request for the Court to take
judicial notice of account agreements from other institutions to
support her opposition to Alliant's motion to dismiss. She
suggests that the Court reviews the extrinsic evidence in
evaluating her breach of contract claims. Because the Membership
Agreement is unambiguous, Judge Coleman will not consider the
extrinsic evidence, and thus denies Page's request.
For the foregoing reasons, Judge Coleman, in a Memorandum Opinion &
Order dated Aug. 26, 2020, a full-text copy of which is available
at https://tinyurl.com/y3yex6ks from Leagle.com, granted in part
with prejudice and granted in part without prejudice, Alliant's
motion to dismiss Page's complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). She also granted the Plaintiff leave to
file an amended complaint in accordance with her ruling.
ALLSTATE INDEMNITY: Bid to Certify Class in Basher Suit Denied
--------------------------------------------------------------
In the case, DONALD BRASHER, individually and on behalf of all
others similarly situated, Plaintiff, v. ALLSTATE INDEMNITY
COMPANY, Defendant, Case No. 4:18-cv-00576-ACA (N.D. Ala.), Judge
Annemarie Carney Axon of the U.S. District Court for the Northern
District of Alabama, Middle Division, (i) denied Mr. Brasher's
motion for class certification; (ii) granted in part and denied in
part Allstate's motion to exclude the opinion testimony of Chris
Hatcher and Jason Wells; (iii) denied as moot Mr. Brasher's motion
to strike and exclude the opinion testimony of Don Odom; (iv)
denied as moot Mr. Brasher's motion to exclude the opinion
testimony of Victoria Roberts; (v) denied as moot Allstate's motion
to strike paragraphs 6 and 7 of Colby Graff's declaration; and (vi)
denied Mr. Brasher's motion to strike paragraphs 9, 10, 11, and 13
of Mr. Odom's declaration.
A storm damaged Plaintiff Brasher's home in St. Clair County,
Alabama. Mr. Brasher filed a property damage claim with Defendant
Allstate. Under the terms of Mr. Brasher's policy, Allstate
settles claims on an "actual cash value" basis. Allstate denied
Mr. Brasher's claim because after depreciating the cost of
materials and labor, the actual cash value of Mr. Brasher's claim
was less than his deductible.
Mr. Brasher filed the putative class action lawsuit claiming that
by depreciating labor costs, Allstate breached the terms of his
insurance contract and was unjustly enriched. He seeks to
represent similarly situated Allstate policyholders in Alabama who
also had labor depreciation deducted from actual cash value claim
payments.
Specifically, Mr. Brasher seeks to represent the following class of
individuals: All Allstate Indemnity Co. property insurance
policyholders who submitted a claim for structural property damage
in Alabama, and whose ACV payment was reduced by the withholding of
labor depreciation and who did not receive a subsequent replacement
cash value payment for the amount of that withheld labor
depreciation, or whose claim failed to meet the deductible after
labor depreciation was deducted from the claim estimate, during the
time period from Feb. 28, 2012, to the date of trial.
The members of the proposed class purchased one of the following
nine policy types that Allstate sells in Alabama: (1) Deluxe
Homeowners Policy; (2) Deluxe Plus Homeowners Policy; (3) Standard
Homeowners Policy; (4) Deluxe Select Homeowners Policy; (5)
Standard Select Value Homeowners Policy; (6) Manufactured Home
Policy; (7) Standard Mobilehome Policy; (8) Deluxe Mobilehome
Policy; or (9) Landlord Package Policy.
Pending before the court is Mr. Brasher's motion for certification
of a Rule 23(b)(3) class for breach of contract and appointment of
class counsel.
In addition, the parties have filed the following motions to
exclude the others' experts pursuant to Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc.: (1)
Allstate's motion to exclude the opinion testimony of Mr. Hatcher
and Mr. Wells; (3) Mr. Brasher's motion to strike and exclude the
opinion testimony of Don Odom; and (3) Mr. Brasher's motion to
exclude the opinion testimony of Victoria Roberts.
The parties also have filed two other motions to strike the other's
evidence: (1) Allstate's motion to strike paragraphs 6 and 7 of
Colby Graff's declaration, and (2) Mr. Brasher's motion to strike
paragraphs 9, 10, 11, and 13 of Mr. Odom's declaration.
The Court held a hearing on the motions on June 17, 2020.
First, with respect to the parties' evidentiary challenges, both
parties have proffered experts in support of their respective
positions on class certification, and both parties challenge the
admissibility of the other's expert testimony. Judge Axon granted
in part and denied in part Allstate's motion to exclude the opinion
testimony of Mr. Hatcher and Mr. Wells. She denied as moot the
motion, to the extent Allstate seeks to exclude Mr. Hatcher's
opinion that labor should not be depreciated because she has not
considered the opinion for purposes of ruling on class
certification. Judge Axon granted the motion, to the extent
Allstate seeks to exclude Mr. Hatcher's opinion about the amount of
labor depreciation applied to the class members' property damage
claims because the opinion in unreliable. She granted the motion
to exclude Mr. Wells' testimony, to the extent his calculations are
based on Mr. Hatcher's unreliable opinion.
Next, Judge Axon denied Mr. Brasher's motion to exclude the
opinion testimony of Mr. Odom, to the extent Mr. Brasher seeks to
exclude the opinion for failure to provide a written report, and
denied as moot the motion, to the extent Mr. Brasher's claims the
opinions do not pass a Daubert test because the court has not
relied on Mr. Odom as an expert witness for purposes of ruling on
class certification. Mr. Odom is not specially employed or
retained to provide expert testimony in the case, and his duties as
an Allstate employee do not regularly involve giving expert
testimony. The Judge has not relied on any opinions from Mr. Odom
for purposes of ruling on class certification. She has relied only
on Mr. Odom's fact testimony in his capacity as Allstate's
corporate representative. Mr. Brasher may renew his Daubert
challenges to Mr. Odom's testimony, if necessary, at a later stage
in these proceedings.
Judge Axon denied as moot Mr. Brasher's motion to exclude Ms.
Roberts' opinions, to the extent Mr. Brasher challenges the cited
portions of her testimony because she has not relied on those
opinions for purposes of ruling on class certification. Mr.
Brasher may renew his Daubert challenge to Ms. Roberts' opinions,
if necessary, at a later stage in these proceedings.
She also denied as moot Allstate's motion to exclude paragraphs 6
and 7 of Colby Graff's declaration because she has not relied on
the disputed portions of Mr. Graff's declaration in ruling on class
certification.
Judge Axon denied Mr. Brasher's motion to strike paragraphs 9, 10,
11, and 13 of Mr. Odom's declaration because the declaration does
not contain new or contradictory opinions, and even if it did, Mr.
Brasher is not prejudiced by the new opinions because she has not
relied on the disputed portions of Mr. Odom's declaration for
purposes of ruling on class certification.
Finally, Judge Axon denied Mr. Brasher's motion for class
certification because Mr. Brasher has not established that common
issues predominate over individual questions as required by Federal
Rule of Civil Procedure 23(b)(3). The Court cannot find that any
common issues regarding the class members' ability to establish
liability predominate over the individual issues concerning the
existence of valid contracts; the class members' own performance
under the policies; class members' damages; and Allstate's
affirmative defenses. Accordingly, Mr. Brasher cannot establish
that the class breach of contract claim satisfies Rule 23(b)(2)'s
predominance requirement.
A full-text copy of the Court's Aug. 12, 2020 Memorandum Opinion &
Order is available at https://tinyurl.com/y35g8mfb from Leagle.com.
AMAZON.COM INC: Denial of Arbitration Bid in Rittman Suit Affirmed
------------------------------------------------------------------
In the case, BERNADEAN RITTMANN, individually and on behalf of all
others similarly situated; FREDDIE CARROLL, individually and on
behalf of all similarly situated; JULIA WEHMEYER, individually and
on behalf of all others similarly situated; RAEF LAWSON,
individually and on behalf of all others similarly situated; in his
capacity as Private Attorney General Representative; IAIN MACK, in
his capacity as Private Attorney General Representative,
Plaintiffs-Appellees, v. AMAZON.COM, INC.; AMAZON LOGISTICS, INC.,
Defendants-Appellants, Case No. 19-35381 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit ruled 2-1 to affirm the district
court's order denying the Defendants-Appellants' motion to compel
arbitration of Plaintiff Raef Lawson's federal and state wage and
hour claims.
Plaintiffs Rittman, Freddie Carroll, Julia Wehmeyer, and Lawson
contracted with Amazon Logistics to provide delivery services for
AmFlex. Amazon Logistics is a subsidiary of Amazon.com, an online
retailer that sells its own products and provides fulfillment
services for third-party sellers who also sell their products on
Amazon.com.
Historically, Amazon has shipped products by using large
third-party delivery providers such as FedEx and UPS. Recently, it
has supplemented those delivery services by contracting with local
delivery providers through its AmFlex program, which is available
in certain metropolitan areas in the United States.
To sign up for the AmFlex program, individuals must agree to the
AmFlex Independent Contractor Terms of Service ("TOS") in the app,
the most recent version of which -- and the one at issue -- was
updated in October 2016. In relevant part, the TOS includes the
arbitration provision at issue.
Plaintiffs Rittman, Carroll, and Wehmeyer timely opted out of
arbitration when they signed up for AmFlex and thus are not subject
to the arbitration provision. Plaintiff Lawson, however, did not
opt out. He then went on to make deliveries in the Los Angeles
area.
In 2016, Plaintiffs Rittman, Carroll, and Wehmeyer filed the
proposed collective and class action lawsuit alleging that Amazon
misclassifies AmFlex users as independent contractors rather than
employees. In 2017, they filed a Second Amended Complaint ("SAC"),
adding Lawson as a Plaintiff. The SAC alleges violations by Amazon
of the Fair Labor Standards Act of 1938 ("FLSA"), the California
Labor Code, and Washington state and Seattle municipal wage and
hour laws. The Plaintiffs seek to bring the FLSA claims as a
nationwide collective action and their state claims as state-wide
class actions.
Amazon moved to compel Lawson's claims to arbitration. The
district court stayed the proceedings pending the resolution of
Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018), Van Dusen v.
Swift Transportation Co., No. 17-15102 (9th Cir. Jan. 20, 2017),
and New Prime Inc. v. Oliveira, 139 S.Ct. 532 (2019). Following
the Supreme Court's decision in New Prime, the parties supplemented
their briefing on the motion to compel.
The district court denied Amazon's motion to compel. It determined
that the Plaintiffs fell within the FAA's transportation worker
exemption, which exempts from the FAA's arbitration enforcement
provisions the contracts of employment of seamen, railroad
employees, or any other class of workers engaged in foreign or
interstate commerce. The court then considered whether the
arbitration provision in Section 11 was otherwise valid and
enforceable. Pointing to the text of the TOS' governing law
provision, the court determined that the FAA did not govern Section
11 in light of the application of the FAA's exemption, and that the
parties did not intend Washington law to apply either.
As a result, the court determined that it was not clear what law
would apply to the provision, or whether the parties intended to
arbitrate disputes in the event the FAA did not apply.
Accordingly, it concluded that there was no valid agreement to
arbitrate and denied Amazon's motion to compel arbitration. Amazon
timely appealed, and the district court stayed proceedings pending
the appeal.
The Ninth Circuit holds that the AmFlex delivery providers in the
case are transportation workers engaged in interstate commerce and
are thus exempt from the FAA's enforcement provisions pursuant to
Section 1. It furthers hold that the parties did not enter into a
valid agreement to arbitrate and that there is no other ground upon
which the Court may enforce the arbitration provision. It rejects
Amazon's alternative bases to compel arbitration. The Ninth
Circuit, therefore, affirmed the district court's denial of
Amazon's motion to compel arbitration.
A full-text copy of the Court's Aug. 19, 2020 Opinion is available
at https://tinyurl.com/y6khn4cu from Leagle.com.
David B. Salmons -- david.salmons@morganlewis.com -- (argued) and
Michael E. Kenneally -- michael.kenneally@morganlewis.com -- Morgan
Lewis & Bockius LLP, Washington, D.C.; Richard G. Rosenblatt --
richard.rosenblatt@morganlewis.com -- Morgan Lewis & Bockius LLP,
Princeton, New Jersey; for Defendants-Appellants.
Harold Lichten -- hlichten@llrlaw.com -- (argued), Shannon
Liss-Riordan -- sliss@llrlaw.com -- and Adelaide Pagano --
apagano@llrlaw.com -- Lichten & Liss-Riordan P.C., Boston,
Massachusetts, for Plaintiffs-Appellees.
Toby J. Marshall -- tmarshall@terrellmarshall.com -- Blythe H.
Chandler -- bchandler@terrellmarshall.com -- and Elizabeth A. Adams
-- eadams@terrellmarshall.com -- Terrell Marshall Law Group PLLC,
Seattle, Washington; Jennifer D. Bennett, Public Justice, Oakland,
California; for Amicus Curiae Public Justice.
Archis A. Parasharami -- aparasharami@mayerbrown.com -- and Daniel
E. Jones -- djones@mayerbrown.com -- Mayer Brown LLP, Washington,
D.C., for Amici Curiae Chamber of Commerce of the United States and
National Association of Manufacturers.
AMERICAN FINANCIAL: Davis Sues Over Unsolicited Text Messages
-------------------------------------------------------------
BENJAMIN DAVIS, individually and on behalf of all others similarly
situated, Plaintiff v. AMERICAN FINANCIAL FREEDOM LLC, d/b/a
GLOBELEND CAPITAL, Defendant, Case No. 1:20-cv-24362-DPG (S.D.
Fla., October 22, 2020) brings this class action complaint against
the Defendant for its alleged violation of the Telephone Consumer
Protection Act.
The Plaintiff claims that the Defendant transmitted text messages
to his cellular telephone number ending in -3278, including on
October 2, 9, and 10, 2018, April 29, 2019, and on or about June
13, 2019, in an attempt to promote the commercial availability of
its commercial lending services, for the purpose of selling such
services to the Plaintiff for profit. The Plaintiff has never
provided the Defendant with his "prior express consent" to be sent
such unsolicited text messages.
Furthermore, each of the Defendant's unsolicited text message
transmitted to the Plaintiff's 3278 cellular telephone number was
invasive and intruded upon the Plaintiff's seclusion because he is
alerted by his cellular device whenever he receives a text
message.
American Financial Freedom LLC d/b/a Globeland Capital provides
capital to business throughout the U.S. [BN]
The Plaintiff is represented by:
Frank S. Hedin, Esq.
HEDIN HALL LLP
1395 Brickell Ave., Suite 1140
Miami, FL 33131
Tel: (305) 357-2107
Fax: (305) 200-8801
E-mail: fhedin@hedinhall.com
ANTHEM INC: Appeal in Express Scripts/Anthem ERISA Suit Pending
---------------------------------------------------------------
Anthem, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 28, 2020, for the quarterly
period ended September 30, 2020, that the appeal in the class
action suit entitled, In re Express Scripts/Anthem ERISA
Litigation, has been heard but the U.S. Court of Appeals for the
Second Circuit has yet to issue a decision.
The company is a defendant in a class action lawsuit that was
initially filed in June 2016 against Anthem, Inc. and Express
Scripts, which has been consolidated into a single multi-district
lawsuit captioned In Re Express Scripts/Anthem ERISA Litigation, in
the U.S. District Court for the Southern District of New York.
The consolidated complaint was filed by plaintiffs against Express
Scripts and us on behalf of all persons who are participants in or
beneficiaries of any ERISA or non-ERISA healthcare plan from
December 1, 2009 to December 31, 2019 in which the company provided
prescription drug benefits through the ESI PBM Agreement and paid a
percentage based co-insurance payment in the course of using that
prescription drug benefit.
The plaintiffs allege that the company breached its duties, either
under ERISA or with respect to the implied covenant of good faith
and fair dealing implied in the health plans, (i) by failing to
adequately monitor Express Scripts' pricing under the ESI PBM
Agreement, (ii) by placing the company's own pecuniary interest
above the best interests of its insureds by allegedly agreeing to
higher pricing in the ESI PBM Agreement in exchange for the
purchase price for the company's NextRx PBM business, and (iii)
with respect to the non-ERISA members, by negotiating and entering
into the ESI PBM Agreement that was allegedly detrimental to the
interests of such non-ERISA members.
Plaintiffs seek to hold us and Express Scripts jointly and
severally liable and to recover all losses suffered by the proposed
class, equitable relief, disgorgement of alleged ill-gotten gains,
injunctive relief, attorney's fees and costs and interest.
In April 2017, the company filed a motion to dismiss the claims
brought against us, and it was granted, without prejudice, in
January 2018.
Plaintiffs filed a notice of appeal with the United States Court of
Appeals for the Second Circuit, which was heard in October 2018 but
has not yet been decided.
Anthem said, "We intend to vigorously defend this suit; however,
its ultimate outcome cannot be presently determined."
No further updates were provided in the Company's SEC report.
Anthem, Inc., through its subsidiaries, operates as a health
benefits company in the United States. It operates through three
segments: Commercial & Specialty Business, Government Business, and
Other. The company was formerly known as WellPoint, Inc. and
changed its name to Anthem, Inc. in December 2014. Anthem, Inc. was
founded in 1944 and is headquartered in Indianapolis, Indiana.
APPLE INC: Viglietti Sues to Recover Money Lost to Illegal Gambling
-------------------------------------------------------------------
Rico Viglietti, on behalf of himself and all others similarly
situated v. APPLE, INC., Case No. 2:20-cv-02773 (W.D. Tenn., Oct.
22, 2020), is brought against the Defendant to recover money lost
to illegal gambling pursuant to Section 29-19-104 of the Code of
Tennessee.
The Defendant promotes, enables, and profits from games downloaded
from the App Store and played by numerous Tennessee residents that
constitute illegal gambling under the statutory law and the strong
public policy of the state of Tennessee. This case concerns Apple's
profiting from illegal gambling machine games that it sells in its
App Store. Apple and its chief mobile device software competitor,
Google, both allow customers to purchase games that are no more or
no less than casino-style slot machines, casino style table games,
and other common gambling games.
The Plaintiff downloaded and played several of these casino-style
gambling games, including Lighning Link, Cashman, and Heart of
Vegas. Mr. Viglietti downloaded these games from the Apple App
Store at least two years ago. More than ninety days ago, he began
purchasing coins through the app so he could continue to play for a
chance to win free coins that would enable him to enjoy the games
for a longer period of time. In the ninety days prior to the filing
of this complaint, he paid $106.00 to Apple for the privilege of
continuing to play the illegal gambling games. A customer such as
plaintiff does not have the ability to collect actual cash as a
result of " winning" games, but he does have the ability to win
and therefore acquire more playing time. Tennessee law prohibits
paying to win anything of value, including free plays.
Apple is not some minor or incidental participant in these illegal
gambling games. It is the principal promoter and facilitator of the
illegal activity. Apple maintains dictatorial control over what
apps can be downloaded from the App Store, and the payment method
to purchase in-app items. Apple has the ability, which it has
employed on other apps, to geo-restrict games so that they can only
be played in certain states. In fact, with cash-out gambling games
it regularly restricts those game so that they can only be played
in states where that type of gambling is legal.
Apple has also restricted gambling games such as the ones made the
basis of this lawsuit so that minors cannot download or play them.
It has the ability with existing technology it currently uses to
prevent the games at issue here from being played in this state.
Apple's App Store is not just a venue to buy iOS apps. It is a
promotional tool. Apple heavily promotes apps, such as the illegal
gambling games that form the basis of this complaint, that promise
to bring in revenue. Revenue from the App Store is the reason Apple
is the most valuable company on the planet. Thus, Apple enables,
permits, promotes, and profits from illegal gambling, says the
complaint.
The Plaintiff Rico Vigliette is an adult resident citizen of the
state of Tennessee.
Apple is the most valuable company in the world, with a market
capitalization exceeding $2 trillion as of mid-2020. It is by far
the world's biggest technology company, now roughly double the size
of both Microsoft Corporation and Alphabet Inc., the parent company
of Google, respectively.[BN]
The Plaintiff is represented by:
D. Frank Davis, Esq.
John E. Norris, Esq.
Wesley W. Barnett, Esq.
DAVIS & NORRIS, LLP
2154 Highland Avenue South
Birmingham, AL 35205
Phone: 205.930.9900
Facsimile: 205.930.9989
Email: fdavis@davisnorris.com
jnorris@davisnorris.com
wbarnett@davisnorris.com
APPLE INC: Workman Sues to Recover Money Lost to Illegal Gambling
-----------------------------------------------------------------
Karen Workman, on behalf of herself and all others similarly
situated v. APPLE, INC., Case No. 3:20-cv-01595 (D. Conn., Oct. 22,
2020), is brought against the Defendant to recover money lost to
illegal gambling pursuant to Section 52-554 of the Connecticut
General Statutes.
The complaint alleges that the Defendant promotes, enables, and
profits from games downloaded from the App Store and played by
numerous Connecticut residents that constitute illegal gambling
under the statutory law and the strong public policy of the state
of Connecticut. This case concerns Apple's profiting from illegal
gambling machine games that it sells in its App Store. Apple and
its chief mobile device software competitor, Google, both allow
customers to purchase games that are no more or no less than
casino-style slot machines, casino style table games, and other
common gambling games.
The Plaintiff downloaded and played one of these casino-style
gambling games. Prior to or near the beginning of 2017, she
downloaded Jackpot Mania from the Apple App Store. During January
of 2017, she began purchasing coins through the app so she could
continue to play for a chance to win free coins that would enable
her to enjoy the game(s) for a longer period of time. In the six
months prior to the filing of this complaint, she paid $3,312.19 to
Apple for the privilege of continuing to play the illegal gambling
game(s). A customer such as the Plaintiff does not have the ability
to collect actual cash as a result of " winning" games, but he
does have the ability to win and therefore acquire more playing
time. Connecticut's gambling statutes make it clear that paying
money in a game for a chance to win more playing time constitutes
illegal gambling.
Apple is not some minor or incidental participant in these illegal
gambling games. It is the principal promoter and facilitator of the
illegal activity. Apple maintains dictatorial control over what
apps can be downloaded from the App Store, and the payment method
to purchase in-app items. Apple has the ability, which it has
employed on other apps, to geo-restrict games so that they can only
be played in certain states. In fact, with cash-out gambling games
it regularly restricts those game so that they can only be played
in states where that type of gambling is legal. Apple has also
restricted gambling games such as the ones made the basis of this
lawsuit so that minors cannot download or play them. It has the
ability with existing technology it currently uses to prevent the
games at issue here from being played in this state.
The complaint asserts that Apple's App Store is not just a venue to
buy iOS apps. It is a promotional tool. Apple heavily promotes
apps, such as the illegal gambling games that form the basis of
this complaint, that promise to bring in revenue. Revenue from the
App Store is the reason Apple is the most valuable company on the
planet. Thus, Apple enables, permits, promotes, and profits from
illegal gambling, says the complaint.
The Plaintiff Karen Workman is an adult resident citizen of the
state of Connecticut.
Apple is the most valuable company in the world, with a market
capitalization exceeding $2 trillion as of mid-2020. It is by far
the world's biggest technology company, now roughly double the size
of both Microsoft Corporation and Alphabet Inc., the parent company
of Google, respectively.[BN]
The Plaintiff is represented by:
Paul M. Geraghty, Esq.
GERAGHTY & BONNANO, LLC
P. O. Box 231, New London, CT 06320
Phone: (860) 447-8077
Fax (860) 447-9833
Email: pgeraghty@geraghtybonnano.com
- and -
DAVIS & NORRIS, LLP
2154 Highland Avenue South
Birmingham, AL 35205
Phone: 205.930.9900
Facsimile: 205.930.9989
ASTRAZENECA PHARMA: EPPs Antitrust Suit Moved to Del. Dist. Ct.
---------------------------------------------------------------
Judge Colleen McMahon of the U.S. District Court for the Southern
District of New York transferred the case captioned In re: Seroquel
XR. (Extended Release Quetiapine Fumarate) Litigation. All
End-Payor Class Actions, Lead Dkt. No. 19-cv-8296 (CM) (S.D. N.Y.),
to the U.S. District Court for the District of Delaware.
In the class action, eight end-payor purchaser Plaintiffs ("EPPs")
bring a consolidated antitrust class action on behalf of
themselves, and all others similarly situated, against Defendants
AstraZeneca Pharmaceuticals L.P. and AstraZeneca L.P., AstraZeneca
UK Ltd., Handa Pharmaceuticals, LLC, and Pa" Pharmaceutical, Inc.
for their allegedly anticompetitive behavior in violation of
various state laws. The action arises from the same facts as the
lead direct purchaser class action, JM Smith Corporation v.
AstraZeneca Pharmaceuticals LP et al., No. 19-cv-7233 ("DPP
Case").
The consolidated class action arises from two alleged conspiracies
between and among the Defendants to delay and suppress competition
for generic versions of AstraZeneca's branded quetiapine fumarate
extended-release tablets, Seroquel XR(R). Each EPP indirectly
purchased, paid and/or reimbursed for some or all of the purchase
price for one or more Seroquel XR and its AB-rated generic
equivalent in class state(s) during the class period -- from Sept.
29, 2011 until the anticompetitive effects of the Defendants'
challenged conduct cease.
Generics manufacturers Handa and Accord Pharmaceuticals, Inc. were
the first to file Abbreviated New Drug Applications ("ANDAs") for
different strengths of generic Seroquel XR. AstraZeneca filed
lawsuits against Handa and Accord in the District of New Jersey,
alleging that their ANDAs infringed AstraZeneca's patent that
protected Seroquel XR. Around Oct. 1, 2011, AstraZeneca entered
into two settlement agreements -- one with Handa (which was
assigned to Pa" in 2012), and the other with Accord. Under the
settlement agreements, Handa and Accord agreed to delay their
launches of generic Seroquel XR.
The EPPs allege that the settlement agreements delayed generic
competition with branded Seroquel XR for up to five years and
eliminated competition between the Handa/Par's and Accord's
first-filed generics and AstraZeneca's AGs for 180 days thereafter.
The presence of additional generics would have resulted in lower
prices. Accordingly, the EPPs and members of the putative class
would have been able to satisfy their requirements for
extended-release quetiapine fumarate at significantly lower prices
substantially earlier.
The EPPs assert various state antitrust and consumer protection
causes of action against the Defendants on their own behalf and on
behalf of similarly situated persons and entities in forty states,
Puerto Rico, and the District of Columbia who indirectly purchased,
paid and/or provided reimbursement for some or all of the purchase
price of brand or generic Seroquel XR, other than for resale, at
any time during the period from Sept. 29, 2011 (when AstraZeneca
and Handa settled the patent litigation) through and until the
anticompetitive effects of Defendants' challenged conduct cease.
Other generic competitors launched their own versions of generic
extended release quetiapine fumarate in all strengths in or around
May 2017.
Specifically, the EPPs assert five causes of action under various
state laws: (I) monopolization against AstraZeneca; and against all
Defendants, (II) conspiracy to monopolize; (III) combination and
conspiracy in restraint of trade; (IV) unfair or deceptive trade
practices; and (V) unjust enrichment.
The Defendants filed the same motion to dismiss in the case and the
DPP Case. The EPPs have not submitted their own briefing on the
motion; rather, they incorporate by reference all arguments in the
opposition filed by the named plaintiff in the DPP Case, JM Smith
Corp., doing business as Smith Drug Co.
By the Court's order dated Aug. 11, 2020, the DPP Case was
transferred to the District of Delaware. The Transfer Order
turned largely on a valid and enforceable forum selection clause in
contracts between AstraZeneca and Smith. In this indirect
purchaser action, the Defendants cannot rely on any contracts
between AstraZeneca and the EPPs. Nevertheless, transfer is
warranted under Section 1404(a).
Judge McMahon holds that, as in the DPP Case, it is prudent to
address the motion to transfer before dealing with the contested
issue of personal jurisdiction because all the Defendants are
either subject to general personal jurisdiction in the District of
Delaware, or consent to such jurisdiction for the purposes of the
case.
Courts consider the following factors under Section 1404(a): (1)
the plaintiffs choice of forum, (2) the convenience of witnesses,
(3) the location of relevant documents and relative case of access
to sources of proof, (4) the convenience of parties, (5) the locus
of operative facts, (6) the availability of process to compel the
attendance of unwilling witnesses, (7) the relative means of the
parties, (8) the forum's familiarity with the governing law, and
(9) trial efficiency and the interest of justice. The balance of
these factors favors transfer to the District of Delaware.
Next, generally, courts give a plaintiff's choice of forum
"considerable weight." Several of the EPPs -- SBA, IOUE, and the
UFA Funds -- are located in the Southern District of New York.
Moreover, there is some connection between the operative facts and
the district based the alleged overpayments by these New York-based
EPPs. However, the four remaining EPPs are not citizens of the
district. They hale from Florida, Pennsylvania, Maryland, and
Minnesota. The fact that the Plaintiffs are not citizens of nor
have any particular connection to their chosen forum diminishes the
deference afforded their choice to litigate.
Moreover, all EPPs in the action seek to represent a class of
entities from 40 states, the District of Columbia, and Puerto Rico.
That further diminishes the deference afforded the Plaintiffs'
choice of forum -- even as to the New York-based EPPs. The EPPs'
choice of forum is afforded little weight in a purported class
action, as here, where numerous potential Plaintiffs are each
possibly able to make a showing that a particular forum is best
suited. Hence, the EPPs' choice of forum weighs in favor of
transfer, but is afforded only little weight.
As noted in the Transfer Order, neither side specifies the key
witnesses to be called or states what their testimony will cover.
Where, in the case, the Defendants seek transfer on account of
several factors, their failure to specify key witnesses and their
testimony is not fatal. In any event, both potential venues are
located in the Northeastern United States along a major
transportation corridor, which minimizes any difference in
convenience.
However, the court has already transferred the DPP Case to the
District of Delaware. The testimony of most -- if not all --
AstraZeneca, Handa, Par, and Accord witnesses will pertain equally
to Smith's claims in the DPP Case and the EPPs' claims in the
action. Those witnesses will be spared much inconvenience by being
called to testify in a single trial in a single location.
Accordingly, the convenience of the witnesses factor weighs in
favor of transfer.
The relative convenience of the parties also slightly favors
transfer. Several EPPs are located in the Southern District of New
York; the others are located in Florida, Pennsylvania, Maryland,
and Minnesota. Similarly, AstraZeneca is located in Delaware, Pa"
is located in New York, and the other Defendants are located in
California and the United Kingdom. Most parties would have to
travel whether this case was heard in New York City or Wilmington.
However, trying all claims in a common forum is far more efficient
than bifurcating them, such that transfer to Delaware would greatly
enhance the Defendants' convenience without meaningfully adding to
the EPPs' inconvenience.
The interest of justice weighs heavily in favor of transfer. The
Court has transferred the DPP Case to the District of Delaware
based on mandatory forum selection clauses in AstraZeneca's
contract with Smith and other wholesalers. There is all but
complete overlap in the allegations made by the EPPs here and those
made by Smith in the DPP Case. The only way to ensure that all
related cases are litigated in a single forum is to transfer the
action to the District of Delaware.
Finally, the Defendants concede that many of the remaining factors
are irrelevant. In sum, the private interest factors point in
different directions: the EPPs' choice of forum somewhat favors the
district, while the convenience of the witnesses and the parties
favors transfer. The public interest weighs decisively in favor of
transfer. There is no rigid formula for balancing these factors
and no single one of them is determinative. Instead, weighing the
balance is essentially an equitable task left to the Court's
discretion. The balance tips toward transfer.
Judge McMahon finds that transfer of the consolidated class action
is warranted under Section 1404(a).
Based on the foregoing, Judge McMahon granted the Defendants'
motion to transfer the action to the District of Delaware. Her
order constitutes the decision and order of the court. It is a
"written opinion." The Clerk of Court is respectfully directed to
close the open motion at Dkt. No. 107 and transfer the action to
the U.S. District Court for the District of Delaware.
A full-text copy of the Court's Aug. 12, 2020 Order is available at
https://tinyurl.com/y25a2sje from Leagle.com.
ATLANTINC HOUSING: Resident Coordinators' Suit Wins Class Status
----------------------------------------------------------------
In the class action lawsuit captioned as ANITA JORGE, individually
and on behalf of others similarly situated, v. ATLANTINC HOUSING
FOUNDATION, INC., et al., Case No. 3:20-cv-02782-N (N.D. Tex.), the
Hon. Judge David C. Godbey entered an order:
1. granting Jorge's motion for notice and conditional
certification;
2. conditionally certifying a class consisting of:
"all current and former Resident Coordinators and those
with similar job duties and pay provisions Atlantic
Housing Foundation has employed over the past three
years";
3. authorizing notice to potential plaintiffs; and
4. directing the parties to conduct additional class
certification discovery for 90 days after the Filing Date.
Jorge claims Atlantic subjected her and other Resident Coordinators
to a common wage policy that, among other things, resulted in
failure to pay minimum wage and overtime wages. Additionally, Jorge
claims that other similarly situated current and former employees
of the Defendants will join the opt-in class. Because Jorge seeks
only conditional certification at this time, the Court finds her
request reasonable in scope and conducive to judicial efficiency.
The Court follows the two-step approach to FLSA class certification
set forth in Lusardi v. Xerox Corp. 99 F.R.D. 89 (D.N.J. 1983)
(conditional certification).
Jorge brought an action asserting claims against the Defendants to
recover unpaid overtime compensation pursuant to the Fair Labor
Standards Act. Jorge is a former "Resident Coordinator" of Atlantic
Housing Foundation, a nonprofit organization that provides
affordable housing to residents with low or moderate income. Jorge
claims that Resident Coordinators' wages are $50 a week plus
lodging. Jorge argues that Atlantic has failed to pay Jorge both
minimum wage and overtime wages and takes illegal credit against
Resident Coordinators' wages in the form of a "rent concession.
Atlantic Housing Foundation provides affordable housing, student
housing and independent senior living.
A copy of the Court's Memorandum, Opinion and Order is available
from PacerMonitor.com at https://bit.ly/3iBlL5n at no extra
charge.[CC]
AURORA CANNIBAS: Pomerantz Law Announces Class Action
-----------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against certain officers of Aurora Cannibas, Inc. ("Aurora" or the
"Company") (NYSE: ACB). The class action, filed in United States
District Court for the District of New Jersey, and docketed under
20-cv-13819, is on behalf of a class consisting of all persons
other than Defendants who purchased or otherwise, acquired Aurora
securities between February 13, 2020, and September 4, 2020, both
dates inclusive (the "Class Period"), seeking to recover damages
caused by Defendants' violations of the federal securities laws and
to pursue remedies under Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5
promulgated thereunder, against the Company and certain of its top
officials.
If you are a shareholder who purchased Aurora securities during the
class period, you have until December 1, 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.
Aurora is headquartered in Edmonton, Canada. The Company produces
and distributes medical cannabis products worldwide. It is
vertically integrated and horizontally diversified across various
segments of the cannabis value chain, including facility
engineering and design, cannabis breeding, genetics research,
production, derivatives, high value-add product development, home
cultivation, wholesale, and retail distribution.
In 2018, the Canadian government approved the Cannabis Act, which
legalized and regulated the use of recreational cannabis. In
response to the statute's approval and the corresponding surge of
the recreational cannabis industry, Aurora completed a series of
acquisitions to expand the Company's presence and increase its
distribution, including the Company's all-share purchase of the
Canadian medical cannabis producer MedReleaf for a total
consideration of 3.2 billion Canadian dollars. Like many other
companies in the cannabis industry, however, the Company
encountered a variety of difficulties as the industry surged,
including, inter alia, overproduction, regulatory delays, and
competition from the black market.
On February 6, 2020, shortly before the start of the Class Period,
Aurora issued a press release announcing, inter alia, a "business
transformation plan," to "better align the business financially
with the current realities of the cannabis market in Canada while
maintaining a sustainable platform for long-term growth."
Specifically, the press release touted that the plan was "expected
to include significant and immediate decreases in selling, general
& administrative ("SG&A") expenses and capital investment plans."
The complaint alleges that thought the Class Period, Defendants
made materially false and/or misleading because they misrepresented
and failed to disclose the following adverse facts pertaining to
the Company's business, operations, and prospects, which were known
to Defendants or recklessly disregarded by them. Specifically,
Defendants made false and/or misleading statements and/or failed to
disclose that: (i) Aurora had significantly overpaid for previous
acquisitions and experienced degradation in certain assets,
including its production facilities and inventory; (ii) the
Company's purported "business transformation plan" and cost reset
failed to mitigate the foregoing issues; (iii) accordingly, it was
foreseeable that the Company would record significant goodwill and
asset impairment charges; and (iv) as a result, the Company's
public statements were materially false and misleading at all
relevant times.
On September 8, 2020, Aurora issued a press release "announc[ing]
an update on its business operations along with certain unaudited
preliminary fiscal fourth-quarter 2020 results." Among other
things, Aurora announced that the Company expected to record up to
$1.8 billion in goodwill impairment charges in the fourth quarter
of 2020. The Company also announced that "previously announced
fixed asset impairment charges[ were] now expected to be up to $90
million, due to production facility rationalization, and a charge
of approximately $140 million in the carrying value of certain
inventory, predominantly trim, in order to align inventory on hand
with near term expectations for demand."
On this news, Aurora's stock price fell $0.99 per share, or 11.63%,
to close at $7.52 per share on September 8, 2020.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members.
Robert S. Willoughby
Pomerantz LLP
Tel No: 888-476-6529 ext. 7980
E-mail: rswilloughby@pomlaw.com [GN]
BAKER HUGHES: Continues to Defend Consolidated Shareholder Suit
---------------------------------------------------------------
Baker Hughes Company Baker Hughes Company said in its Form 10-Q
Report filed with the Securities and Exchange Commission on October
23, 2020, for the quarterly period ended September 30, 2020, that
the company continues to defend the consolidated class action suit
by Tri-State Joint Fund and City of Providence.
On August 13, 2019, Tri-State Joint Fund filed in the Delaware
Court of Chancery, a shareholder class action lawsuit for and on
the behalf of itself and all similarly situated public stockholders
of Baker Hughes Incorporated ("BHI") against the General Electric
Company (GE), the former members of the Board of Directors of BHI,
and certain former BHI Officers alleging breaches of fiduciary
duty, aiding and abetting, and other claims in connection with the
combination of BHI and the oil and gas business (GE O&G) of GE (the
Transactions).
On October 28, 2019, City of Providence filed in the Delaware Court
of Chancery a shareholder class action lawsuit for and on behalf of
itself and all similarly situated public shareholders of BHI
against GE, the former members of the Board of Directors of BHI,
and certain former BHI Officers alleging substantially the same
claims in connection with the Transactions.
The relief sought in these complaints include a request for a
declaration that Defendants breached their fiduciary duties, an
award of damages, pre- and post-judgment interest, and attorneys'
fees and costs.
The lawsuits have been consolidated, and plaintiffs filed a
consolidated class action complaint on December 17, 2019 against
certain former BHI officers alleging breaches of fiduciary duty and
against GE for aiding and abetting those breaches.
The December 2019 complaint omitted the former members of the Board
of Directors of BHI, except for Mr. Craighead who also served as
President and CEO of BHI. Mr. Craighead and Ms. Ross, who served as
Senior Vice President and Chief Financial Officer of BHI, remain
named in the December 2019 complaint along with GE.
The relief sought in the consolidated complaint includes a
declaration that the former BHI officers breached their fiduciary
duties and that GE aided and abetted those breaches, an award of
damages, pre- and post-judgment interest, and attorneys' fees and
costs.
Baker Hughes said, "At this time, we are not able to predict the
outcome of these claims."
No further updates were provided in the Company's SEC report.
Baker Hughes Company provides oilfield products and services. The
Company engages in surface logging, drilling, pipeline operations,
petroleum engineering, and fertilizer solutions, as well as offers
gas turbines, valves, actuators, pumps, flow meters, generators,
and motors. Baker Hughes serves oil and gas industries worldwide.
The company is based in Houston, Texas.
BETHPAGE FEDERAL: Restrepo Sues Over Unfair Fees
------------------------------------------------
Annamaria Restrepo, individually and on behalf of others similarly
situated v. BETHPAGE FEDERAL CREDIT UNION and DOES 1 through 100,
Case No. 2:20-cv-05075-GRB-SIL (E.D.N.Y., Oct. 22, 2020), seeks
monetary damages, restitution, and injunctive relief due to, inter
alia, the Defendant's policy and practice of maximizing the fees it
imposes on members; and the Defendant wrongfully charging the
Plaintiff fees related to their checking accounts.
In connection with its processing of debit transactions (debit
card, ATM, check, ACH, and other similar transactions), Bethpage
assesses what it calls " Uncollected Funds Charge External
Withdrawal (Paid)" ; "Uncollected Funds Charge External Withdrawal
(Returned)"; " Insufficient Funds Charge External Withdrawal
(Paid)"; " Insufficient Funds Charge External Withdrawal
(Returned)"; " Insufficient Funds Charge CK (Paid)"; " Insufficient
Funds Charge CK (Returned)"; " Overdraw Protection Withdraw" OD
Protection Tran Fee"; and "POS Courtesy Pay Usage Fees" fees. These
fees either were not at all permitted to be charged by any Bethpage
contract during the class periods, or were charged in breach of the
contracts, or were charged without mention in the contracts, or
without predicate compliance with law. Overdraft fees and
Insufficient Funds fees ("NSF fees") constitute the primary fee
generators for banks and credit unions.
The complaint alleges that this conduct has the common denominator
of breaching its members' contracts and violating laws so as to
maximize the Defendant's fee income, including but not limited to,
imposing more than one NSF fee, or an NSF fee followed by overdraft
fee, on the same electronic item or check; and, charging fees which
were neither disclosed nor authorized by the Account Contract or
Fee Schedule, or not in accordance with the contracts' terms. The
charging of such fees breaches the Defendant's contracts with its
members, who include Plaintiff and the members of the Class, and
also violates federal law, says the complaint.
The Plaintiff Annamaria Restrepo, is a resident of Old Brookville,
Nassau County, New York, and is a former member of Bethpage.
Bethpage Federal Credit Union offers a full range of banking
products, including checking, savings, credit cards, mortgages and
loans.[BN]
The Plaintiff is reprensted by:
Kevin P. Roddy, Esq.
WILENTZ, GOLDMAN & SPITZER, P.A.
90 Woodbridge Center Drive, Suite 900
Woodbridge, NJ 07095
Phone: (732) 636-8000
Facsimile: (732) 726-6686
Email: kroddy@wilentz.com
- and -
Taras Kick, Esq.
Jeffrey Bils, Esq.
THE KICK LAW FIRM, APC
815 Moraga Drive
Los Angeles, CA 90049
Phone: (310) 395-2988
Facsimile: (310) 395-2088
Email: taras@kicklawfirm.com
jeff@kicklawfirm.com
BLACK TIE: Court Approves $145K Settlement in Bailey FLSA Suit
--------------------------------------------------------------
In the case, JORDAN BAILEY, on behalf of himself and all others
similarly situated, Plaintiff, v. BLACK TIE MANAGEMENT COMPANY LLC,
et. al., Defendant, Case No. 2:19-cv-1677 (S.D. Ohio), Judge Edmund
A. Sargus, Jr. of the U.S. District Court for the Southern District
of Ohio, Eastern Division, granted the Joint Motion for Fair Labor
Standards Act Settlement Approval.
Plaintiff Bailey initiated the action on April 29, 2019 alleging
violations of the Fair Labor Standard Act ("FLSA"), the Ohio
Minimum Fair Wage Act of 1938, the Ohio Revised Code Sections 4111,
et seq., and the Ohio Constitution, Article II, Section 34(a). The
Plaintiff alleged that Defendants Black Tie Management, Black Tie
Moving Services LLC, Black Tie Moving Columbus LLC, Black Tie
Moving Cleveland LLC, Black Tie Moving Cincinnati LLC, James Dustin
Black, and Christopher Hess, employed him and others similarly
situated to carry out their intrastate moving services among
several states.
The Defendants employed the Plaintiff and other similarly situated
employees as non-exempt drivers who either did not cross state
lines or did not cross state lines for periods of more than four
months. The Plaintiff alleged that the Defendants misclassified
him and others similarly situated as independent contractors.
The Plaintiff plead that the Defendants failed to pay him and
others similarly situated when they engaged in compensable work and
for travel time. Additionally, he contended the Defendant failed
to pay them overtime compensation. Finally, he alleged he was
never paid his final paycheck and more than 30 days had passed
since such wages were due. Thus, the Plaintiff contended the
Defendants violated both the FLSA and Ohio law. He brought the
action as an FLSA collective action and a Federal Rule of Civil
Procedure Rule 23 class action.
On Nov. 12, 2019, the Court granted in part and denied in part the
Plaintiff's motion to conditionally certify a class. On June 3,
2020, the parties participated in a mediation before mediator Mike
Ungar and reached a settlement. On June 18, 2020, the parties
filed a joint notice of settlement.
On July 15, 2020, the Parties filed a joint motion to approve their
settlement agreement. The settlement includes the Defendants, 103
class members, of which 69 are opt-in Plaintiffs, and those who
worked in Ohio during the period of April 29, 2016 to May 11, 2020,
who have not yet joined the lawsuit but will have the opportunity
to join through settlement.
The total settlement amount is $145,211.13 which covers alleged
unpaid overtime, a service award to the named Plaintiff ($2,500),
liquidated damages, attorney's fees ($48,403.71), and costs
($15,884.31). The settlement allocates $78,423.11 across the class
members which represents approximately 216.52 minutes of unpaid
overtime per week, and thus, an average median of $761.39. The
Plaintiff agrees to release his claims against the Defendant.
The Parties have submitted their settlement agreement, a list of
the class and the amount they will receive if the Court approves
the settlement agreement, the proposed notice to the opt-in
Plaintiffs, the proposed notice to the non-opt-in Plaintiffs, and
the Plaintiffs' attorney Robi J. Baishnab's declaration.
Judge Sargus finds that (i) there is no evidence of fraud or
collision in this case and instead only evidence of good-faith
arms-length negotiations; (ii) not settling the matter at this time
would cause the parties expense and time; (iii) both parties made
an informed decision to enter into the settlement agreement; (iv)
due to the uncertainties inherent in the Plaintiff's claims, the
likelihood of success is uncertain; (v) he gives deference to the
parties' counsel's belief that the settlement is fair and
reasonable particularly in light of the counsel's experience in
this type of litigation; (vi) the $2,500 award to the
representative Plaintiff for his time and effort in prosecuting the
matter is reasonable; and (vii) the attorney's fees for Plaintiffs'
counsel in the amount of $48,403.71, one-third of the total
settlement amount, is reasonable.
All of the relevant factors weigh in favor of approving the
settlement. Judge Sargus concludes that the settlement reflects a
reasonable compromise over issues and therefore is fair and
reasonable. Thus, the Joint Motion for Fair Labor Standard Act
Settlement Approval is granted and the case is dismissed. The
Clerk is directed to close the case.
A full-text copy of the Court's Aug. 12, 2020 Opinion & Order is
available at https://tinyurl.com/y4nn93lt from Leagle.com.
BLACKBAUD INC: Faces Bedell Class Action Over Data Breach
---------------------------------------------------------
MICHELE SILVERMAN BEDELL, Individually and On Behalf of All Others
Similarly Situated, v. BLACKBAUD, INC., Case No. 7:20-cv-08271
(S.D.N.Y., Oct. 5, 2020), is a class action complaint arising out
of a May 2020 ransomware attack and data breach of BLACKBAUD's
systems between February 7 and May 20, 2020, during which hackers
acquired a database that manages SINAI'S fundraising information.
The BLACKBAUD data and servers breached contained identifying,
sensitive, and Private Information and personal data from donors,
including Plaintiff’s. As a result of the Data Breach, the
Plaintiff and thousands of other Class Member users suffered
ascertainable losses in the form of out-of-pocket expenses and the
value of their time reasonably incurred to remedy or mitigate the
effects of the attack, the complaint says.
The Plaintiff seeks to obtain damages, restitution, and injunctive
relief for the Class. The Plaintiff is a resident and citizen of
Scarsdale, Westchester County, New York. She has been a patient of
and donor to SINAI.
BLACKBAUD is a third-party vendor that provides The Mount Sinai
Health System, Inc., (SINAI) with cloud-based and data solution
services related to SINAI's fundraising activities.[BN]
The Plaintiff is represented by:
Steven Bennett Blau, Esq.
Shelly A. Leonard, Esq.
BLAU LEONARD LAW GROUP, LLC
23 Green Street, Suite 105
Huntington, NY 11743
Telephone: (631) 458-1010
E-mail: sblau@blauleonardlaw.com
sleonard@blauleonardlaw.com
BOILERMAKER-BLACKSMITH: Reply Time to Class Cert. Bid Ended Oct. 31
-------------------------------------------------------------------
In the case, THOMAS ALLEN PHILLIPS, et al., on behalf of themselves
and all others similarly situated, Plaintiffs, v.
BOILERMAKER-BLACKSMITH NATIONAL PENSION TRUST, et al., Defendants,
Case No. 19-2402-DDC-KGG (D. Kan.), Judge Daniel D. Crabtree of the
U.S. District Court for the District of Kansas extended the
Defendants' deadline to respond to the Plaintiffs' Motion for Class
Certification to Oct. 31, 2020.
On Aug. 14, 2020, the Defendants moved the Court to extend the time
to respond to the Plaintiffs' Motion for Class Certification until
Dec. 15, 2020. Their response currently is due Aug. 21, 2020.
To support the extension request, the Defendants explain they seek
to depose the four named Plaintiffs. They explain they waited to
notice the depositions until they learned the Plaintiffs' official
proposed class definition from the class certification motion. The
Defendants assert an extension until December is appropriate
because it will allow them time to take the depositions, order
transcripts, and prepare the response. The extension also would
allow time to review the Plaintiffs' responses to their pending
discovery requests, which are due on Aug. 24, 2020, before
conducting the depositions. Additionally, they seek an extension
because the class certification motion involves seven claims with
different legal theories they must analyze. Finally, the
Defendants describe how scheduled vacations and COVID-19 related
delays to school start dates make scheduling the depositions and
preparing the response difficult in the short term.
The Plaintiffs opposed the extension request. When the Defendants
reached out to them about the request, the Plaintiffs noted their
opposition to the lengthy extension, but did not oppose the
Defendants deposing the class representatives before responding to
the class certification motion. And, the Plaintiffs agreed to a
60-day extension until Oct. 20, 2020 as a matter of professional
courtesy. Now, they oppose any extension, arguing that a
four-month extension is unreasonable and will prejudice them who
have their pensions withheld during the difficult economic time.
The claims in the lawsuit assert the Defendants' denial of pension
benefits is unlawful.
Despite the Plaintiffs' arguments that the Defendants have not
shown good cause for any extension, Judge Crabtree finds an
extension is permissible. The Defendants have provided a variety
of reasons they are unable to respond to the Plaintiffs' class
certification motion within the 14-day period permitted by the
Court's local rules, and he concludes they have made some showing
of good faith and some reasonable basis for noncompliance within
the time specified. While the Plaintiffs assert the Defendants
haven't explained in adequate detail why they can't meet the
deadline despite diligent efforts, the Defendants have identified
circumstances underlying their request sufficient for the court to
determine some extension is appropriate.
But the Judge agrees with the Plaintiffs that an extension until
Dec. 15, 2020 is unreasonable. If the Court grants an extension,
the Plaintiffs ask to limit the extension to 60 days -- extending
the response deadline to Oct. 20, 2020.
Consistent with Fed. R. Civ. P. 1's directive to administer and
employ the rules to secure the just, speedy, and inexpensive
determination of every action and proceeding, Judge Crabtree
extended the Defendants' response deadline, but only until Oct. 31,
2020.
If the Defendants exercise diligence in reviewing the Plaintiffs'
forthcoming discovery responses and scheduling and conducting the
depositions they assert are needed, he believes they will have
adequate time to respond to the merits of the Plaintiffs' class
certification motion. The extension is longer than the Plaintiffs
argue is tolerable, but significantly shorter than the Defendants'
initial request, and the Judge concludes extending the response
deadline to the end of October is reasonable.
Based on the foregoing, Judge Crabtree granted in part the
Defendants' Motion for Extension of Time.
A full-text copy of the Court's Aug. 19, 2020 Memorandum & Order is
available at https://tinyurl.com/y4alvlvq from Leagle.com.
BOSTON SCIENTIFIC: Settlement in Pelvic Mesh Device Case Gets OK
----------------------------------------------------------------
Siskinds LLP and Siskinds, Desmeules s.e.n.c.r.l. announced court
approval of a Canada-wide settlement reached in a class action
related to certain women's transvaginal mesh devices for treatment
of Pelvic Organ Prolapse ("POP") and Stress Urinary Incontinence
("SUI") manufactured and distributed by Boston Scientific Ltd. and
Boston Scientific Corporation ("BSC").
The settlement applies to all Canadian women who have been
implanted with one or more of these device(s) at any time on or
before February 28, 2020 and provides for the payment by the
defendants of $21,500,000.00 (Canadian dollars) for eligible
claims, administration costs, health care expenses incurred by
Provincial Health Insurers and legal fees.
"We are proud of this settlement on behalf of Canadian women who
have received pelvic mesh implants," said Jill McCartney of
Siskinds. "We are pleased to be able to finally resolve the claims
of the class members."
The class action, which was commenced in 2012 against BSC, alleged
various injuries associated with BSC's Transvaginal Mesh Devices.
The proposed Settlement is not an admission of the facts or
liability on the part of the defendants, nor has there been any
finding of liability by the Court against them. The defendants deny
the allegations made in the lawsuits.
The settlement was approved by the Ontario Superior Court of
Justice on June 12, 2020. The Ontario Court also approved the
Compensation Protocol, which governs which Class Members are
eligible for compensation and in what amount. For information about
the eligibility criteria and compensation levels, you should review
the long-form Notice, the Compensation Protocol and the Settlement
Agreement and related documents at www.canadabscmeshclassaction.com
or contact the Claims Administrator or Class Counsel at the
addresses below.
Class Members Can Claim Compensation
Class Members can now submit claims for compensation which will be
adjudicated by the Claims Administrator pursuant to the eligibility
terms of the Compensation Protocol. Further information relating to
the proposed settlement, including copies of the Settlement
Agreement, Compensation Protocol, and related documents, and how to
make a claim, including a copy of the claim form, is available at
www.canadabscmeshclassaction.com or by calling the Claims
Administrator at 1.866.795.5067.
Pursuant to the Compensation Protocol, there will be an Initial
Claim Period for women who were implanted with a BSC Transvaginal
Mesh Device before April 1, 2016, which will end on January 18,
2021, and a Supplemental Claim Period, ending on January 18, 2023.
Women who sustained injuries (or worsening injuries) after January
18, 2021, women who missed the Initial Claim Deadline and women who
were implanted with a BSC Transvaginal Mesh Device on or after
April 1, 2016 will be eligible to claim during the Supplemental
Claim Period.
To qualify in the Initial Claim Period, claims must be submitted
(postmarked) by January 18, 2021.
Filing a claim is complex and requires medical records which will
take time to retrieve. As a result, you may wish to retain a lawyer
to assist you. You can retain Class Counsel or a lawyer of your
choice. [GN]
BRINKER INTERNATIONAL: Mediation in Data Breach Suit on Nov. 18
---------------------------------------------------------------
Brinker International, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 23, 2020, that mediation in the
putative class action suit entitled, In re: Brinker Data Incident
Litigation, Case No. 18-cv-00686-TJC-MCR, is scheduled for November
18, 2020.
In fiscal 2018, the company issued a public statement that malware
had been discovered at certain Chili's restaurants that may have
resulted in unauthorized access or acquisition of customer payment
card data. Based on investigation by the company's third-party
forensic experts, the company believe most Company-owned Chili's
restaurants were impacted by the malware during time frames that
vary by restaurant, but the company believes in each case began no
earlier than March 21, 2018 and ended no later than April 22,
2018.
The Company was named as a defendant in a putative class action
lawsuit in the United States District Court for the Middle District
of Florida styled In re: Brinker Data Incident Litigation, Case No.
18-cv-00686-TJC-MCR (the "Litigation") relating to the cyber
security incident.
In the Litigation, plaintiffs assert various claims stemming from
the cyber security incident at the Company's Chili's restaurants
involving customer payment card information and seek monetary
damages in excess of $5.0 million, injunctive and declaratory
relief, and attorney's fees and costs.
On July 27, 2020, the Court granted the company's second motion to
dismiss as to all of Plaintiffs' claims for injunctive relief on
Article III standing grounds, dismissing Plaintiffs' declaratory
judgment and Florida Deceptive and Unfair Trade Practices Act
(FDUTPA) claims outright and dismissing the injunctive relief
portions of their UCL claims.
The Court further ordered Brinker to file an answer to Plaintiffs'
Third Amended Complaint by August 23, 2020, and ordered the parties
to mediate the case by November 20, 2020, prior to the class
certification hearing in January 2021.
Plaintiffs filed their motion for class certification on August 31,
2020, and Brinker's deadline to file its opposition to
Plaintiffs’ motion is October 30, 2020. Mediation is scheduled
for November 18, 2020.
"We believe we have defenses and intend to continue defending the
Litigation. As such, as of September 23, 2020, we have concluded
that a loss, or range of loss, from this matter is not
determinable, therefore, we have not recorded a liability related
to the Litigation. We will continue to evaluate this matter based
on new information as it becomes available," Brinker said.
Brinker International, Inc., together with its subsidiaries, owns,
develops, operates, and franchises casual dining restaurants in the
United States and internationally. As of June 27, 2018, it owned,
operated, or franchised 1,686 restaurants comprising 997
company-owned restaurants and 689 franchised restaurants under the
Chili's Grill & Bar and Maggiano's Little Italy brand names. The
company was founded in 1975 and is based in Dallas, Texas.
BUCKEYE INC: Morgan et al. Sue Over Failure to Properly Pay OT
--------------------------------------------------------------
ROLAND MORGAN and BURNICE PICKENS, individually and on behalf of
all others similarly situated, Plaintiffs v. BUCKEYE, INC.,
Defendant, Case No. 7:20-cv-00247 (W.D. Tex., October 22, 2020)
bring this collective action complaint against the Defendant for
its alleged failure to pay overtime in violation of the Fair Labor
Standards Act.
The Plaintiffs, who were employed by the Defendant as non-exempt
day rate workers, claim that the Defendant employs a day rate
compensation system that did not take into account all hours worked
in a workweek or overtime hours. Despite routinely working in
excess of 60 or more hours in a workweek, the Plaintiffs received a
flat rate only for all hours they worked without overtime premiums
at one and one-half times their regular rate of pay for all hours
they worked in a workweek.
Buckeye, Inc. provides drilling fluids and other specialized
services to the oil and gas industry. [BN]
The Plaintiffs are represented by:
William S. Hommel, Jr., Esq.
HOMMEL LAW FIRM
5620 Old Bullard Road, Suite 115
Tyler, TX 75703
Tel: (903) 596-7100
Fax: (469) 533-1618
E-mail: bhommel@hommelfirm.com
CELLULAR CONNECTION: Pa. Employees Class Certified in Weirbach Case
-------------------------------------------------------------------
In the case THERESA WEIRBACH and CHARLES ZIMMER, on behalf of
themselves and all others similarly situated, Plaintiffs, v. THE
CELLULAR CONNECTION, LLC, Defendant, Case No. 5:19-cv-05310-JDW
(E.D. Pa.), Judge Joshua D. Wolson of the U.S. District Court for
the Eastern District of Pennsylvania granted the Plaintiff's motion
for conditional certification, but limits the scope to Pennsylvania
Plaintiffs.
The Cellular Connection ("TCC") offers cellphones and related
services at retail stores across the United States. Ms. Weirbach
worked as a Sales Representative at a TCC retail location in
Allentown, Pennsylvania, from May 2017 to January 2018. TCC paid
her hourly. Mr. Zimmer worked as Technical Advisor from July 2017
to June 2018 at TCC retail locations in Sayre, Pennsylvania, and
Elmira, New York. Sales Representatives and Technical Advisors
have similar job duties, including customer service, sales of
cellphones and phone service plans, cleaning, and stocking products
in the store.
Ms. Weirbach and Mr. Zimmer allege that TCC managers required them
and similarly situated Sales Reps to participate in off-the-clock
meetings and conferences via phone and a group messaging
application called GroupMe. They also contend that they had to
complete work-related paperwork and make bank deposits during
off-hours. They estimate that they worked five to ten unpaid
overtime hours per workweek. TCC does not provide a method for
recording such time spent working outside the retail stores, so
Sales Reps were not compensated for this time. Ms. Weirbach and
Mr. Zimmer assert that TCC has violated its obligations under the
FLSA.
TCC contends that it prohibits employees from working off-the-clock
and does not require its employees to use any group messaging
application outside of its retail locations or after working hours.
It also asserts that employees are unable to perform any
meaningful work-related tasks while outside of the store. However,
in the event that work is performed outside a store, TCC claims
that it adjusts employees' time records to ensure that it pays them
for all hours worked.
Ms. Weirbach filed a complaint in the action on Nov. 12, 2019. On
Feb. 28, 2020, Ms. Weirbach filed an amended complaint that added
Mr. Zimmer as a Plaintiff. Since Ms. Weirbach filed the original
complaint, approximately 22 other individuals have filed opt-in
notices. The opt-in Plaintiffs come from several different states
around the country. Ms. Weirbach filed a motion for conditional
certification on Feb. 14, 2020. The Court heard argument on that
motion on Aug. 4, 2020.
Ms. Weirbach and Mr. Zimmer seek conditional certification of an
FLSA collective consisting of: All non-exempt hourly retail
associates (including Sales Representatives, Technical Advisors and
similarly titled employees) employed by TCC at any retail store
location throughout the United States on or after Nov. 12, 2016 to
the date of judgment of the action, who have not been paid for all
overtime hours worked.
Judge Wolson concludes that the Plaintiffs have made the modest
factual showing necessary for conditional certification of a
collective. The claims in the amended complaint are similar to the
claims that members of the collective would assert: they had to
perform off-the-clock work, had no way of recording it, and did not
get paid for it. All members of the collective will seek the same
time type of relief.
TCC also argues that the Court should not certify claims concerning
off-the-clock work. Judge Wolson opines that the fact that
determining alleged liability and damages in an off-the-clock case
may prove fact-intensive or individualized does not weigh against
conditional certification at this stage of the proceedings. The
decisions on which TCC bases its argument are not on point because
they arise under Rule 23's class certification standards.
TCC argues that the Court cannot conditionally certify individuals
over whose claims it does not have personal jurisdiction. As an
initial matter, Judge Wolson concludes that he must tackle the
question now, not defer it to the second stage of certification.
Courts should only authorize notice to individuals who might be in
the collective. If he authorized notice to individuals who cannot
be in the collective, it would only sow confusion.
The FLSA makes opt-ins parties to the lawsuit. The statute states
that no employee will be a party plaintiff to any such action
unless he gives his consent in writing to become such a party and
such consent is filed in the court in which such action is brought.
Section 216(b) is a rule of joinder giving legal status to
individual opt-in plaintiffs. The existence of a collective action
depends on the active participation of opt-in party plaintiffs.
In addition to a jurisdictional limit, TCC asks the Court to limit
the scope of any collective to non-managerial employees. Judge
Wolson will not do so at this phase of the litigation. It is not
clear to the Court whether managers are exempt or, if not, whether
they have to perform off-the-clock work. However, as the
Plaintiffs point out, many managers likely started as Sales Reps
and might therefore be members of the collective. Thus, excluding
managers at this point could create more confusion than it will
resolve. The Court, therefore, declines to do so. TCC can argue
that managers are not similarly situated at the next phase of the
case.
Once a court conditionally certifies a collective action, it
possesses discretion to provide court-facilitated notice to
proposed plaintiffs. Taking the Parties' requests into account,
Judge Wolson imposes certain conditions on the form and provision
of the notice. Those conditions are set forth in the Order
accompanying his Memorandum.
Accordingly, Judge Wolson conditionally certified the collective
action, but only for TCC employees who live or work in
Pennsylvania. The Court does not have personal jurisdiction for
claims of other Sales Reps. An appropriate Order follows.
A full-text copy of the Court's Aug. 12, 2020 Memorandum is
available at https://tinyurl.com/yytn8m6n from Leagle.com.
CENTENE CORP: Ambetter Policies Related Suit Dismissed
------------------------------------------------------
Centene Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 30, 2020, that the case related to
Ambetter policies has been dismissed with prejudice.
On January 11, 2018, a putative class action lawsuit was filed by
Cynthia Harvey and Steven A. Milman against the Company and certain
subsidiaries in the U.S. District Court for the Eastern District of
Washington.
The complaint alleges that the Company failed to meet federal and
state requirements for provider networks and directories with
regard to its Ambetter policies, denied coverage and/or refused to
pay for covered benefits, and failed to address grievances
adequately, causing some members to incur unexpected costs.
In March 2018, the Company filed separate motions to dismiss each
defendant. In July 2018, the plaintiff, Cynthia Harvey, voluntarily
filed a First Amended Complaint that removed Steven A. Milman as a
plaintiff, dropped Centene Corporation and Superior Health Plan as
defendants, abandoned certain claims, narrowed the putative class
to Washington State only, and added Centene Management Company as a
defendant.
In August 2018, the Company moved to dismiss the First Amended
Complaint. In response, the plaintiff voluntarily filed a Second
Amended Complaint. In September 2018, the Company filed a motion to
dismiss the Second Amended Complaint. On November 21, 2018, the
Court granted in part and denied in part the Company's motion to
dismiss.
The plaintiff filed a Third Amended Complaint, on November 28,
2018, against Centene Management Company and Coordinated Care
Corporation (Defendants), both subsidiaries of the Company.
Defendants filed an answer on December 12, 2018. The plaintiff
filed a motion for class certification on January 8, 2020.
The Company opposed and the Court denied the class certification.
The plaintiff appealed the class certification denial to the 9th
Circuit, but the 9th Circuit dismissed the plaintiff's appeal on
procedural grounds. The case proceeded as an individual lawsuit
between a single member and Coordinated Care Corporation until
September 15, 2020, when the case was dismissed with prejudice.
Centene Corporation, incorporated on September 26, 2001, is a
healthcare company. The Company provides a portfolio of services to
government sponsored healthcare programs, focusing on under-insured
and uninsured individuals. The Company operates through two
segments: Managed Care and Specialty Services. It provides
member-focused services through locally based staff by assisting in
accessing care, coordinating referrals to related health and social
services and addressing member concerns and questions. It also
provides education and outreach programs to inform and assist
members in accessing appropriate healthcare services. The company
is based in St. Louis, Missouri.
CHIPOTLE MEXICAN: Bid for Rehearing En Banc in Ong Suit Denied
--------------------------------------------------------------
Chipotle Mexican Grill, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that the court
in the putative class action suit initiated by Susie Ong has denied
the plaintiffs' motion for an en banc rehearing.
On January 8, 2016, Susie Ong filed a complaint in the U.S.
District Court for the Southern District of New York on behalf of a
purported class of purchasers of shares of the company's common
stock between February 4, 2015 and January 5, 2016.
The complaint purports to state claims against the company, each of
the co-Chief Executive Officers serving during the claimed class
period and the Chief Financial Officer under Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, as amended, and
related rules, based on the company's alleged failure during the
claimed class period to disclose material information about our
quality controls and safeguards in relation to consumer and
employee health.
The complaint asserts that those failures and related public
statements were false and misleading and that, as a result, the
market price of our stock was artificially inflated during the
claimed class period.
The complaint seeks damages on behalf of the purported class in an
unspecified amount, interest, and an award of reasonable attorneys'
fees, expert fees, and other costs.
On March 22, 2018, the court granted the company's motion to
dismiss, with prejudice.
On April 20, 2018, the plaintiffs filed a motion for relief from
the judgment and seeking leave to file a third amended complaint,
and on November 20, 2018, the court denied the motion.
On December 20, 2018, the plaintiff initiated an appeal to the U.S.
Court of Appeals for the Second Circuit, and on October 1, 2020,
the court denied the plaintiffs' motion for an en banc rehearing.
Chipotle Mexican Grill, Inc., together with its subsidiaries,
operates Chipotle Mexican Grill restaurants. As of December 31,
2018, it operated 2,491 restaurants, including 2,452 Chipotle
restaurants in the United States, 37 Chipotle restaurants
internationally, and two non-Chipotle restaurants. The company was
founded in 1993 and is headquartered in Newport Beach, California.
CHIPOTLE MEXICAN: Judgment in Ong Securities Fraud Suit Affirmed
----------------------------------------------------------------
In the case, METZLER INVESTMENT GMBH, CONSTRUCTION LABORERS PENSION
TRUST OF GREATER ST. LOUIS, Plaintiffs-Appellants, SUSIE ONG,
Individually and On Behalf of All Others Similarly Situated,
Plaintiff, v. CHIPOTLE MEXICAN GRILL, INC., MONTGOMERY F. MORAN,
JOHN R. HARTUNG, M. STEVEN ELLS, Defendants-Appellees, Case No.
18-3807-cv (2d Cir.), the U.S. Court of Appeals for the Second
Circuit affirmed the district court's order denying the Plaintiffs'
motion for relief from judgment for the Defendants-Appellees, (ii)
for leave to file a third amended complaint.
The Plaintiffs-Appellants purchased shares of Chipotle common stock
between Feb. 5, 2015 and Feb. 2, 2016. Chipotle is a fast-food
restaurant chain. It was founded by Defendant Ells in 1993 and by
Dec. 31, 2015 had grown to operate over 1,900 restaurants.
During the class period, before it was shortened to Oct. 21, 2015
through Feb. 2, 2016, Defendants Ells and Moran served as the
co-CEOs of Chipotle while Defendant Hartung served as the CFO.
Defendants Ells and Moran served also on Chipotle's board of
directors -- Moran as a director and Ells as the chairman. On Dec.
12, 2016, Moran resigned both of his positions at the board's
request. Ells then served as the sole CEO until he resigned on
Nov. 29, 2017. He continued to serve as chairman of the board.
Chipotle sells ready-to-eat food products that contain produce
including tomatoes, lettuce, red onions, jalapeños, and cilantro.
Up until late 2014, the company prepared its produce in centralized
commissaries. During 2014 and 2015, FDA regulations required such
centralized commissaries to provide two different types of testing
to ensure food safety: raw material testing and end-product
testing.
In late 2014, Chipotle transitioned from preparing the produce for
its ready-to-eat food products in centralized commissaries to
preparing the produce in its individual restaurants. As a result,
the "risks to Chipotle's operations," specifically that its food
products would cause outbreaks of food-borne illness, "dramatically
increased" after the transition.
The Plaintiffs allege that the increased risk of food-borne illness
outbreaks following the transition was realized. Prior to the
transition, from 2008 to December 2014, there were three outbreaks
of food-borne illness from Chipotle food products. After the
transition, from December 2014 through December 2015, there were
fourteen outbreaks linked to Chipotle customers or locations: five
Salmonella outbreaks, six E. coli outbreaks, and three Norovirus
outbreaks. These outbreaks occurred in various parts of the
country, affecting at least 23 states and sickening a total of
approximately 611 people.
The Center for Disease Control ("CDC"), the Food and Drug
Administration ("FDA"), and state or local public health officials
investigated at least seven of these outbreaks. Public health
officials were able to identify sources they suspected of causing
several outbreaks. They included contaminated produce items such
as cilantro, red onions, jalapeños, tomatoes, and lettuce which
caused six outbreaks, and sick employees reporting to work which
caused three outbreaks. They were unable to identify a source or
suspected source for five of the outbreaks. Chipotle responded by
announcing in September 2015 that it was implementing a
comprehensive whole chain traceability program that would allow it
to trace ingredients across the supply chain (end to end).
The outbreaks had an adverse impact on Chipotle's financial and
operating results in the fourth quarter of 2015. In its Form 10-K
for the fiscal year ending Dec. 31, 2015, filed on Feb. 5, 2016,
Chipotle stated that significant publicity regarding a number of
food-borne illness incidents associated with Chipotle restaurants
had a severe adverse impact on their sales and profitability.
Comparable restaurant sales declined 14.6% in the fourth quarter of
2015 and approximately 36 percent in January 2016. In its Form
10-K filed for the fiscal year ending Dec. 31, 2016, the company
reported $22.9 million in earnings compared to $475.6 million in
earnings for the fiscal year ending Dec. 31, 2015 -- a 95.2%
decline.
On Jan. 8, 2016, Plaintiff Ong, who is not a party to the appeal,
filed the putative securities class action against Chipotle, Ells,
Moran, and Hartung in the U.S. District Court for the Southern
District of New York. The complaint asserted causes of action
under sections 10(b) and 20(a) of the Securities Exchange Act of
1934, and Rule 10b-5 thereunder, on behalf of purchasers of
Chipotle securities between February 4, 2015, and Jan. 5, 2016.
The complaint alleged that the Defendants made materially false and
misleading statements regarding the company's quality controls that
artificially inflated Chipotle's stock price. The putative class
allegedly suffered damages when Chipotle's stock price dropped
after a series of food-borne illness outbreaks from August to
December 2015 were connected to Chipotle customers and
restaurants.
On March 8, 2016, by-then putative class members Metzler and the
Trust made a motion asking the court to appoint them as the Lead
Plaintiffs and to approve their counsel as the lead counsel. On
April 18, 2016, the court granted the motion.
Two months later, on June 17, 2016, the Plaintiffs filed an amended
complaint that included more detailed and specific allegations than
had the original complaint. Among other things, the amended
complaint alleged that the defendants had violated federal
securities laws based on Chipotle's failure to disclose its
decision to switch from using central commissary kitchens to
process and prepare the produce used in its restaurants to
processing produce in each of the Company's over 1,900 restaurants,
and the increased risk of food-borne illness outbreaks that
resulted from that decision. That increased risk allegedly was
realized when there were at least seven food-borne illness
outbreaks from July to December 2015.
On Aug. 18, 2016, the Defendants moved to dismiss the amended
complaint. On March 8, 2017, the court granted the motion. It
dismissed the amended complaint without prejudice and granted the
Plaintiffs' request for leave to amend their complaint.
The Plaintiffs filed a second amended complaint ("SAC") on April 7,
2017. It included new allegations of six additional outbreaks,
including several in late 2014 and early 2015, presumably to rebut
the district court's conclusion that the transition appeared not to
heighten Chipotle's risk at all for the first half of 2015. The
Defendants again moved to dismiss. The Plaintiffs, in their
opposition papers, included a request for leave to replead if the
court were to grant any part of the Defendants' motion.
On March 22, 2018, the district court granted the Defendants'
motion to dismiss with prejudice. In the same opinion and order,
the district court denied the Plaintiffs' request for leave to file
a third amended complaint. The following day, the Clerk of Court
entered judgment for the Defendants and closed the case.
On April 20, 2018, the Plaintiffs moved in the district court for
relief from the judgment, pursuant to Federal Rules of Civil
Procedure 59(e) and 60(b), and for leave to file a proposed third
amended complaint ("PTAC"), pursuant to Rule 15(a)(2). They sought
relief from the Judgment. They argued that the court should grant
them leave to file the PTAC because the new allegations it
contained cure the deficiencies perceived by the court in the SAC
and therefore amendment would not be futile.
On Nov. 20, 2018, the court denied the motion. It concluded that
the Plaintiffs were not entitled to relief because the purported
newly discovered evidence -- but for a single allegation -- was not
in fact new for purposes of Rules 59(e) and 60(b). The court
noted, however, that even if it were to consider the purported new
information in the PTAC, the result would not change because the
proposed amendment would be futile. The appeal followed.
On appeal, the Plaintiffs-Appellants contend only, in sum, that in
denying their post-judgment motion for leave to amend, the district
court applied an incorrect legal standard, and that it erroneously
determined that the filing of the PTAC was futile. As to the
former, they argue that the court was obliged to consider only the
standard that governs pre-trial motions for leave to amend a
pleading pursuant to Federal Rule of Civil Procedure 15(a)(2). The
court should freely give leave when justice so requires.
The Second Circuit holds that the Plaintiffs had three
opportunities to state a claim and had requested a fourth in their
opposition to the Defendants' motion to dismiss before the district
court granted the Defendants' motion with prejudice and denied the
Plaintiffs' request. Even with the benefit of that opinion, the
Plaintiffs failed to cure the deficiencies in their Second Amended
Complaint. Moreover, they cite no authority that supports their
assertion that the district court was obliged to consider their
proposed amendment only under Rule 15(a)(2), effectively replacing
the standards under Rules 59(e) and 60(b) with those in Rule
15(a)(2) to decide their post-judgment motion. The Second Circuit
concludes that its well-established rule that a plaintiff seeking
to file an amended complaint post-judgment must first have the
judgment vacated or set aside pursuant to Rules 59(e) or 60(b),
stands.
In the post-judgment context, the Circuit has indeed given "due
regard" to "the liberal spirit of Rule 15" by ensuring plaintiffs
at least one opportunity to replead. But it has not given sole
regard to Rule 15. Doing so would allow the liberal amendment
policy of Rule 15(a) to swallow the philosophy favoring finality of
judgments. The Plaintiffs-Appellants' argument that their motion
is governed solely by the legal standard applicable to Rule
15(a)(2) motions therefore is without merit, rules the Second
Circuit.
Alternatively, the Plaintiffs-Appellants argue that the district
court erred by considering whether they had presented any newly
discovered evidence that would entitle them to relief under Rules
59(e) and 60(b). The Circuit is not persuaded. It recently
reiterated that Rule 60(b) allows relief from a judgment or order
when evidence has been newly discovered or for any other reason
justifying relief from the operation of the judgment. Newly
discovered evidence must be of facts that existed at the time of
trial or other dispositive proceeding. A motion to dismiss is one
such dispositive proceeding. The newly discovered evidence
provisions of Rules 59(e) and 60(b) thus apply to the
Plaintiffs-Appellants' post-judgment motion for leave to amend
because it was made following grant of a motion to dismiss which,
like a trial, is a dispositive proceeding." Their challenge to the
legal standard applied by the district court thus fails, adds the
Second Circuit.
The Second Circuit has considered their remaining arguments on
appeal and concludes that they are without merit.
Ultimately, IT concludes that the Plaintiffs-Appellants are not
entitled to relief from the judgment and a fourth opportunity to
state a claim. Accordingly, the judgment of the district court is
affirmed.
A full-text copy of the Second Circuit's Aug. 12, 2020 Order is
available at https://tinyurl.com/y4lrynx4 from Leagle.com.
DOUGLAS WILENS -- dwilens@rgrdlaw.com -- Robbins Geller Rudman &
Dowd LLP, Boca Raton, FL, for Plaintiffs-Appellants.
Samuel H. Rudman, David A. Rosenfeld -- drosenfeld@rgrdlaw.com --
and Michael G. Capeci -- mcapeci@rgrdlaw.com -- on the brief,
Robbins Geller Rudman & Dowd LLP, Melville, NY, for
Plaintiffs-Appellants.
James M. Hughes -- jhughes@motleyrice.com -- and Christopher F.
Moriarty -- cmoriarty@motleyrice.com -- on the brief, Motley Rice
LLC, Mount Pleasant, SC, for Plaintiffs-Appellants.
William H. Narwold -- bnarwold@motleyrice.com -- and Mathew P.
Jasinski, on the brief, Motley Rice LLC, Hartford, CT, for
Plaintiffs-Appellants.
Louis M. Bogard, on the brief, Motley Rice LLC, Washington, DC, for
Plaintiffs-Appellants.
ANDREW B. CLUBOK -- andrew.clubok@lw.com -- (Susan E. Engel --
susan.engel@lw.com -- Matthew J. Peters -- matthew.peters@lw.com --
and Jessica L. Saba, on the brief), Latham & Watkins LLP,
Washington, DC, for Defendants-Appellees.
Kendra N. Beckwith -- kbeckwith@messner.com -- on the brief,
Messner Reeves LLP, Denver, CO, for Defendants-Appellees.
CHURCHILL DOWNS: Fairness Hearing in Soileau Continued to Nov. 17
-----------------------------------------------------------------
Churchill Downs Incorporated said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that the
fairness hearing in John L. Soileau, et al. v. Churchill Downs
Louisiana Horseracing, LLC, Churchill Downs Louisiana Video Poker
Company, LLC (Suit No. 14-3873) relating to the terms of a
settlement agreement began on October 7, 2020, and has been
continued until November 17, 2020.
On April 21, 2014, John L. Soileau and other individuals filed a
Petition for Declaratory Judgment, Permanent Injunction, and
Damages-Class Action styled John L. Soileau, et. al. versus
Churchill Downs Louisiana Horseracing, LLC, Churchill Downs
Louisiana Video Poker Company, LLC (Suit No. 14-3873) in the Parish
of Orleans Civil District Court, State of Louisiana.
The petition defined the "alleged plaintiff class" as quarter horse
owners, trainers and jockeys that have won purses at the "Fair
Grounds Race Course & Slots" facility in New Orleans, Louisiana
since the first effective date of La. R.S. 27:438 and specifically
since 2008.
The petition alleged that Churchill Downs Louisiana Horseracing,
LLC and Churchill Downs Louisiana Video Poker Company, LLC ("Fair
Grounds Defendants") have collected certain monies through video
draw poker devices that constitute monies earned for purse
supplements and all of those supplemental purse monies have been
paid to thoroughbred horsemen during Fair Grounds' live
thoroughbred horse meets. La. R.S. 27:438 requires a portion of
those supplemental purse monies to be paid to quarter-horse
horsemen during Fair Grounds' live quarter-horse meets.
The petition requested that the District Court declare that Fair
Grounds Defendants violated La. R.S. 27:438, issue a permanent and
mandatory injunction ordering Fair Grounds Defendants to pay all
future supplements due to the plaintiff class pursuant to La. R.S.
27:438, and to pay the plaintiff class such sums as it finds to
reasonably represent the value of the sums due to the plaintiff
class.
On August 14, 2014, the plaintiffs filed an amendment to their
petition naming the Horsemen’s Benevolent and Protective
Association 1993, Inc. ("HBPA") as an additional defendant and
alleging that HBPA is also liable to plaintiffs for the disputed
purse funds.
On October 9, 2014, HBPA and Fair Grounds Defendants filed
exceptions to the suit, including an exception of primary
jurisdiction seeking referral to the Louisiana Racing Commission.
By Judgment dated November 21, 2014, the District Court granted the
exception of primary jurisdiction and referred the matter to the
Louisiana Racing Commission.
On January 26, 2015, the Louisiana Fourth Circuit Court of Appeals
denied the plaintiffs' request for supervisory review of the
Judgment. On August 24, 2015, the Louisiana Racing Commission ruled
that the plaintiffs did not have standing or a right of action to
pursue the case. The plaintiffs appealed this decision to the
District Court, which affirmed the Louisiana Racing Commission's
ruling. The plaintiffs filed an appeal of the District Court's
decision with the Louisiana Fourth Circuit Court of Appeals, which
reversed the Louisiana Racing Commission's ruling and remanded the
matter to the Louisiana Racing Commission for further proceedings
on June 13, 2018. The Louisiana Fourth Circuit Court of Appeals
denied the Fair Grounds Defendants' Motion for Rehearing on July
12, 2018 and the Louisiana Supreme Court denied the Fair Grounds
Defendants' Writ of Certiorari seeking review of that decision on
November 14, 2018.
The parties had previously attempted to mediate the matter in
October 2018, but were unsuccessful. Thereafter, the parties
resumed informal settlement discussions, and, as a result, the
Company established an accrual for an immaterial amount in the
third quarter of 2019.
The parties submitted a settlement agreement to the District Court
on February 14, 2020, following the Louisiana Racing Commission's
approval to transfer the matter to the District Court for approval
and administration of the settlement agreement on February 12,
2020. At a hearing on February 18, 2020, the District Court granted
preliminary approval of the settlement agreement and set certain
deadlines relating to actions to be taken by class members.
The settlement agreement requires, among other items, the Fair
Grounds Defendants to (i) pay a certain out-of-pocket amount that
is within the amount for which we established an accrual in the
third quarter of 2019, and (ii) support legislation that allocates
a specified amount of video poker purse funds to quarter horse
purses for races at Fair Grounds with maximum annual payout caps
that are not deemed material.
On June 13, 2020, the legislation addressed in the settlement
agreement was passed by the legislature and signed into law by the
Governor of Louisiana. The settlement includes a release of claims
against the Fair Grounds Defendants in connection with the
proceeding, although individual plaintiffs may opt-out. If there
are opt-out claims in excess of $50,000, the settlement will be
voided, unless the parties agree to stipulate otherwise. The
settlement agreement is subject to certain conditions, including
court approval.
After the parties entered into the settlement, legal counsel for
six objecting, named plaintiffs filed an amended petition with the
District Court.
After a hearing on July 20, 2020, the District Court dismissed the
amended petition. The objecting plaintiffs filed a notice of their
intention to seek a writ with the Louisiana Court of Appeals for
the Fourth Circuit related to the dismissal of the amended
petition, which was denied.
The fairness hearing with the District Court relating to the terms
of the settlement agreement began on October 7, 2020, and has been
continued until November 17, 2020.
Churchill Downs Incorporated operates as a racing, gaming, and
online entertainment company in the United States. It operates
through Racing, Casinos, Online Wagering, and Other Investments and
Corporate segments. Churchill Downs Incorporated was founded in
1928 and is headquartered in Louisville, Kentucky.
CHURCHILL DOWNS: Feb. 2021 Final Hearing on Kater Deal
------------------------------------------------------
Churchill Downs Incorporated said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that the final
settlement approval hearing in Cheryl Kater v. Churchill Downs
Incorporated, is currently scheduled for February 11, 2021.
On April 17, 2015, the Kater litigation (Cheryl Kater v. Churchill
Downs Incorporated) was filed in the Washington District Court
alleging, among other claims, that the Company's "Big Fish Casino"
operated by the Company's then-wholly owned mobile gaming
subsidiary Big Fish Games, violated Washington law, including the
Washington Consumer Protection Act, by facilitating unlawful
gambling through its virtual casino games (namely the slots,
blackjack, poker, and roulette games offered through Big Fish
Casino), and seeking, among other things, return of monies lost,
reasonable attorney's fees, treble damages, and injunctive relief.
On January 9, 2018, the Company sold Big Fish Games to Aristocrat,
an indirect, wholly owned subsidiary of Aristocrat Leisure Limited,
an Australian corporation, pursuant to the Stock Purchase
Agreement. Pursuant to the terms of the Stock Purchase Agreement,
the Company agreed to indemnify Aristocrat for the losses and
expenses associated with the Kater litigation for Big Fish Games,
which is referred to in the Stock Purchase Agreement as the
"Primary Specified Litigation."
After the Washington District Court dismissed the case with
prejudice on November 19, 2015, the United States Court of Appeals
for the Ninth Circuit reversed and remanded the Washington District
Court's dismissal of the complaint on March 28, 2018.
The complaint was amended on March 20, 2019, to add Big Fish Games
as a party and to assert claims on behalf of an additional
plaintiff, Suzie Kelly. Prior disclosures in our filings with the
Securities and Exchange Commission have identified the extensive
procedural history associated with this case.
As previously disclosed, on May 22, 2020, the parties entered into
an agreement in principle to settle the Kater litigation and the
Thimmegowda litigation.
The agreement in principle remains contingent on final court
approval by the Washington District Court.
Under the terms of the settlement, which will take effect only
after final court approval of the proposed class settlement: (i) a
total of $155.0 million will be paid into a settlement fund. CDI
will pay $124.0 million of the settlement from its available cash;
Aristocrat will pay $31.0 million of the settlement; (ii) all
members of the nationwide settlement class who do not exclude
themselves will release all claims relating to the subject matter
of the lawsuits; and (iii) Aristocrat has agreed to specifically
release CDI of any and all indemnification obligations under the
Stock Purchase Agreement arising from or related to the Kater and
Thimmegowda litigations, including any claims of diminution of
value of Big Fish Games and any claims by any person who opts out
of the proposed class settlement.
On August 31, 2020, the Washington District Court granted the
parties' motion for preliminary approval, and the final settlement
approval hearing is currently scheduled for February 11, 2021.
Churchill Downs Incorporated operates as a racing, gaming, and
online entertainment company in the United States. It operates
through Racing, Casinos, Online Wagering, and Other Investments and
Corporate segments. Churchill Downs Incorporated was founded in
1928 and is headquartered in Louisville, Kentucky.
CHURCHILL DOWNS: Feb. 2021 Final Hearing on Thimmegowda Accord
--------------------------------------------------------------
Churchill Downs Incorporated said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that the final
settlement approval hearing in Manasa Thimmegowda v. Big Fish
Games, Purchaser, Aristocrat Leisure Limited, is currently
scheduled for February 11, 2021.
On February 11, 2019, the Thimmegowda litigation was filed in the
Washington District Court alleging, among other claims, that "Big
Fish Casino," which is operated by Big Fish Games, violated
Washington law, including the Washington Consumer Protection Act,
and seeking, among other things, return of monies lost, reasonable
attorney's fees, injunctive relief, and treble and punitive
damages.
Prior disclosures in the company's filings with the Securities and
Exchange Commission have identified the extensive procedural
history associated with this case.
On May 22, 2020, the parties entered into an agreement in principle
to settle the Kater and Thimmegowda litigations.
The agreement in principle with respect to the Thimmegowda
litigation is described above, under the "Kater Class Action Suit."
On August 31, 2020, the Washington District Court granted the
parties' motion for preliminary approval, and the final settlement
approval hearing is currently scheduled for February 11, 2021.
Churchill Downs Incorporated operates as a racing, gaming, and
online entertainment company in the United States. It operates
through Racing, Casinos, Online Wagering, and Other Investments and
Corporate segments. Churchill Downs Incorporated was founded in
1928 and is headquartered in Louisville, Kentucky.
CJS SOLUTIONS: May Amend Reply in Borup Case to Clarify Defense
---------------------------------------------------------------
In the case, Timothy C. Borup, Individually and on behalf of all
others similarly situated, Plaintiff, v. The CJS Solutions Group,
LLC, d/b/a The HCI Group, Defendant, Case No. 18-cv-1647 (PAM/DTS)
(D. Minn.), Magistrate Judge David T. Schultz of the U.S. District
Court for the District of Minnesota, granted the Defendant's motion
to amend its answer to clarify its personal jurisdiction defense.
In the wage and hour suit, Borup -- individually, as a collective
action, and on behalf of a purported class -- has sued HCI alleging
that HCI failed to properly pay overtime compensation. HCI is a
Florida-based technology company that provides nationwide support
and training services to the healthcare industry in using new
electronic recordkeeping systems. The Mayo Clinic in Rochester,
Minnesota is one of HCI's clients, for which HCI hired1 Borup as a
consultant and where it assigned him to work.
Borup's suit identifies two distinct groups of aggrieved litigants.
First, he brings his federal FLSA claim (Count I) as a collective
action representing: All individuals who were classified as
independent contractors while performing consulting work for The
CJS Solutions Group, LLC, doing business as The HCI Group, in the
United States, for the maximum time period as may be allowed by
law.
Borup, however, defines the second group more narrowly by bringing
the Minnesota FLSA claim (Count II) as a Rule 23 class action on
behalf of: All individuals who were classified as independent
contractors while performing consulting work for The CJS Solutions
Group, LLC, doing business as The HCI Group, in the State of
Minnesota, for the maximum time period as may be allowed by law.
Thus, while his state-based FLSA class action encompasses only
litigants who worked in Minnesota, his federal FLSA collective
action is nationwide.
HCI answered the complaint, defending that as applied to the facts
and circumstances of the case, Borup's suit would constitute a
denial of its Due Process rights, both substantive and procedural,
in violation of the Fourteenth Amendment to the United States
Constitution. And though personal jurisdiction is inextricably
linked to due process protections, HCI never explicitly mentioned
personal jurisdiction in its pleadings.
HCI moves to amend its answer to more clearly plead an affirmative
defense. In its original answer HCI asserted that certification of
a collective action or class action would constitute a denial of
Defendant's Due Process rights, both substantive and procedural,
but did not specifically aver that this Court lacked personal
jurisdiction over it with respect to certain defendants.
HCI now claims that it intended to plead the affirmative defense
that the Court lacks personal jurisdiction, and now seeks to amend
its answer to plead that the Court lacks personal jurisdiction over
it as to the claims of any individual who neither worked for
Defendant in Minnesota nor resided in Minnesota at the time they
worked for the Defendant, and the exercise of such personal
jurisdiction over the Defendant as to such claims would deprive
Defendant of its right to due process.
Magistrate Judge Schultz concludes that HCI has adequately pleaded
-- however inartfully -- a defense of personal jurisdiction in its
original answer. Having determined that HCI has not waived its
personal jurisdiction defense, he must now determine whether to
grant HCI's motion to amend its answer to more clearly plead it.
Borup argues that the Court should deny HCI's motion to amend
because allowing the amendment will prejudice the putative
collective. But Borup's reasoning is not that the Court's order
granting leave would create prejudice, but that applying the
Bristol-Myers Squibb Co. v. Superior Court standard, which
underlies HCI's personal jurisdiction defense for nationwide class
actions, to collective actions would be prejudicial. But whether
the personal jurisdiction limitations of Bristol-Myers Squibb
extend to nationwide collective actions is not before the Court and
is a question for a later day. Accordingly, HCI may amend its
answer to clearly plead its personal jurisdiction defense, rules
Magistrate Judge Schultz.
A full-text copy of the Court's Aug. 26, 2020 Amended Order is
available at https://tinyurl.com/yyxde9pa from Leagle.com.
CKF ENTERPRISES: $595K Settlement in Ware Suit Gets Final Approval
------------------------------------------------------------------
In the case, JULIA WARE, et al., Plaintiffs, v. CKF ENTERPRISES,
INC., et al., Defendants, Civil Action No. 5: 19-183-DCR (E.D.
Ky.), Judge Danny C. Reeves of the U.S. District Court for the
Eastern District of Kentucky, Southern Division, at Lexington,
granted the Plaintiffs' motion for final approval of the amended
settlement agreement.
Plaintiffs Ware and Ralph Edwards are former consultants for CKF.
They claim that CKF classified them as independent contractors
rather than employees, thus failing to pay them adequate overtime
and violating the Fair Labor Standards Act ("FLSA"), and the
Kentucky Wages and Hours Act ("KWHA"). They filed one claim
individually and on behalf of a collective for violation of the
FLSA. Ware also filed two claims individually and on behalf of a
class for violation of the KWHA pursuant to Federal Rule of Civil
Procedure 23 ("Kentucky class").
After an attempt at mediation, the parties eventually agreed to a
gross settlement amount of $595,000, which includes $198,333.33 in
attorney's fees, $9,148.88 in costs, and a $5,000 service award to
each named Plaintiff. The net settlement amount would be
approximately $377,517.79. The Plaintiffs have identified 652
consultants as beneficiaries of the settlement agreement. Out of
that total, 530 are members of the FLSA collective and 381 are
members of the Kentucky class. Of those 381 Kentucky class
members, 122 are only members of the Kentucky class, and 259 are
members of both the Kentucky class and the FLSA collective.
Each participant will receive a $100 per capita in exchange for
their applicable release of claims. The releases of claims differ
among the named Plaintiffs, FLSA collective members, Kentucky class
members, and those in both the class and collective. Participants
will also receive pro rata allocations based on alleged
uncompensated overtime hours. The average share for participants
is calculated at $883.12.
The agreement will be effective one business day after the Court's
final approval reaches finality and is no longer appealable. The
Plaintiffs' counsel will mail checks within 15 calendar days, and
they will remain valid and negotiable for 180 calendar days. After
those 180 days, any remaining funds will go to Hope Center, Inc.,
their chosen cy pres recipient.
The first unopposed motion for preliminary approval was denied
without prejudice. The Plaintiffs then filed a second unopposed
motion for preliminary approval of the proposed settlement
agreement. The Court conditionally certified the FLSA collective;
preliminarily certified the Rule 23 class; appointed a class
representative and counsel; and preliminarily approved attorney's
fees, costs, service awards, and the cy pres beneficiary.
But due to concerns with the notice forms, the Court declined to
approve the proposed agreement or the notices. The Plaintiffs then
filed a third motion for preliminary approval of the proposed
settlement and approval of the notices. After review, the Court
preliminarily approved the proposed settlement and approved the
notices.
After the agreement was preliminarily approved, the Plaintiffs'
counsel self-administered the settlement. They sent out notice,
opt-in consent forms, and claim forms to the 652 consultants. They
further issued reminder notices, calls, and emails. Ultimately,
only four class members requested exclusion, and none objected.
Three hundred and thirty-two consultants submitted opt-in consent
forms or claim forms, with a total of 402 participants. The
Plaintiffs have now filed an unopposed motion for final approval.
They seek approval of their settlement agreement; certification of
their FLSA collective and Kentucky class; and approval of
attorney's fees, costs, and service awards.
A final fairness hearing was held on Aug. 26, 2020.
Judge Reeves finds that final certification of the FLSA collective
action for purposes of settlement is appropriate. The notice
provided was appropriate. Further, the settlement amount,
attorney's fees, costs, and service awards are fair, reasonable,
and adequate. And as outlined more fully above in in prior
opinions filed in the case, the settlement is fair, reasonable and
appropriate. Accordingly, Judge Reeves granted the Plaintiffs'
motion for final approval of the amended settlement agreement and
approved the settlement agreement.
The provisionally certified Kentucky class is now finally certified
pursuant to Federal Rules 23(a) and (b)(3) of the Federal rules of
Civil Procedure for purposes of settlement only. The conditionally
certified FLSA collective is now finally certified pursuant to 29
U.S.C. Section 216(b) for purposes of settlement only.
The attorney's fees, costs, and service awards provided for in the
proposed agreement, as well as the cy pres beneficiary, are
approved.
A full-text copy of the Court's Aug. 26, 2020 Memorandum Opinion &
Order is available at https://tinyurl.com/yywywlpo from Leagle.com.
COBB & FENDLEY: Bid to Certify Class in Leal FLSA Suit Now Moot
---------------------------------------------------------------
In the class action lawsuit captioned as Andres Leal v. Cobb,
Fendley & Associates, Inc., Case No. 5:20-cv-00372 (W.D. Tex.), the
Hon. Judge Orlando L. Garcia entered an order mooting the motion to
certify class of:
"all field employees employed as a Senior Field Technician,
Field Technician, Party/Crew Chief, or Instrument
Operator/Rodman in CobbFendley's Survey Department who were
paid an hourly rate and received an annual bonus in a period
covering at least one week in which the employee worked more
than 40 hours in the last three years."
The Plaintiff filed this lawsuit as a collective action on March
24, 2020. The suit alleges violation of the Fair Labor Standards
Act.
CobbFendley provides professional civil engineering and land
surveying services.[CC]
The Plaintiff is represented by:
Josh Sanford, Esq.
Merideth Q. McEntire, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford Road, Suite 411
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
merideth@sanfordlawfirm.com
The Defendant is represented by:
Mario A. Barrera, Esq.
NORTON ROSE FULBRIGHT US LLP
Frost Tower
111 W. Houston St., Suite 1800
San Antonio, TX 78205
Telephone: (210) 224-5575
Telecopier: (210) 270-7205
E-mail: mario.barrera@nortonrosefulbright.com
COMMUNITY HEALTH: Bid to Dismiss Padilla Suit Still Pending
-----------------------------------------------------------
Community Health Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that the motion
to dismiss the case, Caleb Padilla, individually and on behalf of
all others similarly situated vs. Community Health Systems, Inc.,
Wayne T. Smith, Larry Cash, and Thomas J. Aaron, is still pending.
Caleb Padilla, individually and on behalf of all others similarly
situated v Community Health Systems, Inc., Wayne T. Smith, Larry
Cash, and Thomas J. Aaron.
This purported federal securities class action was filed in the
United States District Court for the Middle District of Tennessee
on May 30, 2019.
It seeks class certification on behalf of purchasers of the
company's common stock between February 20, 2017 and February 27,
2018 and alleges misleading statements resulted in artificially
inflated prices for the company's common stock.
On November 20, 2019, the District Court appointed Arun
Bhattacharya and Michael Gaviria as lead plaintiffs in the case.
The lead plaintiffs filed a consolidated class complaint on January
21, 2020.
The Company filed a motion to dismiss the consolidated class
complaint on March 23, 2020. That motion is pending.
Community Health said, "We believe this matter is without merit and
will vigorously defend this case."
No further updates were provided in the Company's SEC report.
Community Health Systems, Inc., through its subsidiaries, owns,
leases, and operates general acute care hospitals in the United
States. The company offers general acute care, emergency room,
general and specialty surgery, critical care, internal medicine,
obstetrics, diagnostic, psychiatric, and rehabilitation services,
as well as skilled nursing and home care services. It also provides
outpatient services at urgent care centers, occupational medicine
clinics, imaging centers, cancer centers, and ambulatory surgery
centers. Community Health Systems, Inc. was founded in 1985 and is
headquartered in Franklin, Tennessee.
COMMUNITY HEALTH: Final Settlement Approval Hearing on Nov. 30
--------------------------------------------------------------
Community Health Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that the hearing
to consider final approval of the settlement in the case, Zwick
Partners, LP and Aparna Rao, individually and on behalf of all
others similarly situated v. Quorum Health Corporation, Community
Health Systems, Inc., Wayne T. Smith, W. Larry Cash, Thomas D.
Miller, and Michael J. Culotta, is set for November 30, 2020.
This purported class action lawsuit previously filed in the United
States District Court, Middle District of Tennessee was amended on
April 17, 2017 to include Community Health Systems, Inc., Wayne T.
Smith and W. Larry Cash as additional defendants.
The plaintiffs seek to represent a class of Quorum Health
Corporation, or QHC, shareholders and allege that the failure to
record a goodwill and long-lived asset impairment charge against
QHC at the time of the spin-off of QHC violated federal securities
laws.
The District Court denied all defendants' motions to dismiss on
April 20, 2018. The plaintiffs moved for class certification.
Plaintiffs also amended their complaint on September 14, 2018.
The company moved to dismiss the additional claims in the
plaintiffs' September 14, 2018 amended complaint and responded to
plaintiffs' class certification motion. On March 29, 2019, the
court granted the company's motion to dismiss the additional
claims. The court granted the plaintiffs' motion for class
certification on that same date.
On April 12, 2019, the company filed a petition for permission to
appeal the court's order granting class certification with the
United States Court of Appeals for the Sixth Circuit, which was
denied on July 31, 2019.
On May 17, 2019, the plaintiffs moved to amend their complaint for
a third time to add additional claims, which the District Court
denied on August 2, 2019.
All parties have now reached a settlement of this case, which was
preliminarily approved by the District Court on July 27, 2020. On
September 17, 2020, Greenlight Capital requested exclusion from the
Class. The hearing for final approval of the settlement by the
District Court is set for November 30, 2020.
Community Health Systems, Inc., through its subsidiaries, owns,
leases, and operates general acute care hospitals in the United
States. The company offers general acute care, emergency room,
general and specialty surgery, critical care, internal medicine,
obstetrics, diagnostic, psychiatric, and rehabilitation services,
as well as skilled nursing and home care services. It also provides
outpatient services at urgent care centers, occupational medicine
clinics, imaging centers, cancer centers, and ambulatory surgery
centers. Community Health Systems, Inc. was founded in 1985 and is
headquartered in Franklin, Tennessee.
COMMUNITY HEALTH: Tentative Settlement Reached in Kirk Suit
-----------------------------------------------------------
Community Health Systems, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that a tentative
settlement has been reached in the case, Becky Kirk, Perry Ayoob,
and Dawn Karzenoski, as representatives of a class of similarly
situated persons, and on behalf of the CHS/Community Health
Systems, Inc. Retirement Savings Plan v. Retirement Committee of
CHS/Community Health Systems, Inc., John and Jane Does 1-20,
Principal Life Insurance Company, Principal Management Corporation,
and Principal Global Investors, LLC.
This purported class action was filed in the United States District
Court for the Middle District of Tennessee on August 8, 2019.
The plaintiffs seek to represent a class of current and former
participants in the CHS/Community Health Systems, Inc. Retirement
Savings Plan and allege that the defendants breached their
fiduciary duties by offering certain investments in the Plan that
were more expensive and/or did not perform as well as other
marketplace alternatives.
Community Health said, "We have reached a tentative, immaterial
settlement with the plaintiffs and will be seeking court approval
of the settlement."
No further updates were provided in the Company's SEC report.
Community Health Systems, Inc., through its subsidiaries, owns,
leases, and operates general acute care hospitals in the United
States. The company offers general acute care, emergency room,
general and specialty surgery, critical care, internal medicine,
obstetrics, diagnostic, psychiatric, and rehabilitation services,
as well as skilled nursing and home care services. It also provides
outpatient services at urgent care centers, occupational medicine
clinics, imaging centers, cancer centers, and ambulatory surgery
centers. Community Health Systems, Inc. was founded in 1985 and is
headquartered in Franklin, Tennessee.
CONVERGENT OUTSOURCING: Rawls Sues to Recover Overtime Wages
------------------------------------------------------------
Quneshia Rawls, individually and on behalf of all others similarly
situated v. CONVERGENT OUTSOURCING, INC., Case No. 2:20-cv-01538
(W.D. Wash., Oct. 16, 2020), is brought to recover overtime wages,
liquidated damages, and attorneys' fees and costs pursuant to the
Fair Labor Standards Act of 1938, and Alabama common law.
Specifically, the Defendant has enforced a uniform company-wide
policy wherein it improperly required its hourly call-center
employees to perform work "off-the-clock" and without pay. The
Defendant's illegal company-wide policy has caused the Plaintiff to
have hours worked that were not compensated and further created a
miscalculation of their regular rate(s) of pay for purposes of
calculating their overtime compensation each workweek.
Although the Plaintiff routinely worked in excess of 40 hours per
workweek, the Plaintiff was not paid overtime of at least one and
one half their regular rates for all hours worked in excess of 40
hours per workweek, asserts the complaint. The Defendant knowingly
and deliberately failed to compensate Plaintiff for all hours
worked each workweek and the proper amount of overtime on a routine
and regular basis during the relevant time period, the complaint
adds.
The Plaintiff Quneshia Rawls was employed by Convergent in
Montgomery, Alabama.
Convergent is a global customer engagement and contact center that
provides customer services, technical support services, and sales
and marketing support to its business clients.[BN]
The Plaintiff is represented by:
Michael C. Subit, Esq.
Marc C. Cote, Esq.
FRANK FREED SUBIT & THOMAS LLP
705 Second Avenue, Suite 1200
Seattle, WA 98104
Phone: (206) 682-6711
Email: msubit@frankfreed.com
mcote@frankfreed.com
- and -
Clif Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER, PLLC
819 North Upper Broadway
Corpus Christi, TX 78401
Phone: (361) 452-1279
Facsimile: (361) 452-1284
Email: cliff@a2xlaw.com
austin@a2xlaw.com
CROWN CASTLE: Continues to Defend Securities Class Suits
--------------------------------------------------------
Crown Castle International Corp. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that the company
continues to defend putative securities class action suits in the
U.S. District Court for the District of New Jersey.
In February and March 2020, putative securities class action suits
were filed in the United States District Court for the District of
New Jersey against the Company and certain of its current officers.
The lawsuits were filed on behalf of investors that purchased or
otherwise acquired stock of the Company between February 26, 2018
and February 26, 2020.
The allegations relate to allegedly false or misleading statements
or other failures to disclose information about the Company's
business, operations and prospects.
The complaints seek unspecified money damages and the award of the
plaintiffs' costs and expenses incurred in the respective class
action.
Crown Castle said, "The Company is currently unable to determine
the likelihood of an outcome or estimate a range of reasonably
possible losses, if any, with respect to these lawsuits. The
Company believes these lawsuits are without merit and intends to
defend itself vigorously."
No further updates were provided in the Company's SEC report.
Crown Castle International Corp. owns, operates and leases shared
wireless infrastructure, including towers and other structures like
rooftops and small cell networks supported by fiber. The
Houston-based Company's wireless infrastructure is geographically
dispersed throughout the U.S., including Puerto Rico. The company
is based in Houston, Texas.
CUBESMART LP: Torres Class Suit Seeks OT Pay for Managers
---------------------------------------------------------
SHELTALEE TORRES, individually and on behalf of all others
similarly situated, v. CUBESMART LP, and CUBESMART MANAGEMENT LLC,
d/b/a Cubesmart Self Storage, Case No. 3:20-cv-01137-TJC-PDB (M.D.
Fla., Oct. 5, 2020), alleges that the Defendants violated the Fair
Labor Standards Act for failure to pay overtime compensation and
any premium for all hours worked over 40 each week.
The Plaintiff contends that like his fellow Managers, and who are
members of this putative Class, worked at the Defendants' self
storage retail locations across the United States and its
territories, were paid on an hourly basis and classified as
non-exempt employees under the FLSA. She alleges that the
Defendants classified all Store Managers, Property Managers and
General Managers as Non-Exempt from overtime wages pursuant to
either State law or the FLSA. She, like his fellow Managers were
systematically denied any overtime pay for hours they worked in
excess of 40 hours, she adds.
Sheltalee Torres worked for the Defendants for a period of about 10
years until his termination on October 3, 2020, working under the
job title of "General Manager".
CUBESMART LP, formerly known as U Store It Trust, operates and/or
manages 1246 stores, properties or locations across the United
States and its territories.[BN]
The Plaintiff is represented by:
Mitchell Feldman, Esq.
FELDMAN LEGAL GROUP
Tampa, FL 33625
Telephone: 813-639-9366
Facsimile: 813-639-9376
E-mail: mlf@feldmanlegal.us
CULTURAL CARE: Court Narrows Claims in Mack Suit
------------------------------------------------
In the case, AMANDA MACK, Plaintiff, v. CULTURAL CARE INC.,
Defendant, Civil Action No. 1:19-cv-11530-ADB (D. Mass.), Judge
Allison D. Burroughs of the U.S. District Court for the District of
Massachusetts granted in part and denied in part the Defendant's
motion to dismiss the Plaintiff's Second Amended Complaint.
Plaintiff Mack brings the putative class action against the
Defendant, alleging that it double charged the Plaintiff and au
pairs for travel costs associated with both international airfare
and transitioning the au pairs from its training school to their
host families. The Defendant operates an exchange program that
connects au pairs from foreign countries with host families in the
United States.
On March 4, 2018, the parties entered into an agreement whereby the
Defendant would provide an au pair from China that would live in
the Plaintiff's home in Massachusetts and care for her children.
The terms of the agreement were included in the Host Family
Agreement, and the fee arrangement for the Defendant's services was
set forth in the Host Family Financial Responsibility Agreement.
According to the Agreement, the Program Fee for a new family
seeking an au pair was $8,695 and the Domestic Transportation Fee
was between $0 and $300, depending on the location of the host
family. The Agreement did not provide any further definition of
the Program Fee or the Domestic Transportation Fee.
Because the Program Fee and Domestic Transportation Fee were left
undefined, the Plaintiff looked to the Defendant's website for more
information. Regarding the Domestic Transportation fee, the
website explained that it covers an au pair's transportation to
their host family's home from the Au Pair Training School in New
York. Regarding the Program Fee, the website provided that it
includes recruitment and screening, Training School, matching
services, orientation, round-trip international airfare, travel
medical insurance coverage and year-long support from one's local
childcare consultant.
The Plaintiff paid the Program Fee and the Domestic Transportation
Fee of $100 for the au pair's transportation from New York City to
her home in Boston and the au pair successfully executed the duties
set forth in the Agreement from July 2018 until June 2019.
Unbeknownst to her, the Defendant had similar agreements with au
pairs, who were also required to pay a program fee which allegedly
includes and covers the au pair's travel costs. The Defendant's
website for au pairs in China states that the cost includes travel
costs from designated departure cities to the United States, as
well as transportation costs from the training school to the host
families' homes. The au pair websites for other countries provide
similar arrangements.
The Plaintiff claims that the Defendant misrepresented the nature
of its fees and led her to believe that she would be paying the au
pair's travel costs in their entirety and that her au pair would
therefore not be charged for her travel costs. She alleges that
the Defendant's actions constituted a breach of contract and a
breach of the implied covenant of good faith, or, if the Court
determines that there is no enforceable contract, unjust
enrichment. The Plaintiff additionally brings a claim under
Massachusetts General Laws Chapter 93A. At the root of her claims
is the allegation that the Defendant either double charged her au
pair for the same fee or misrepresented the nature of the fees,
which in either case, induced her to pay more than she would have
reasonably paid for the Program Fee and Domestic Transportation
Fee.
The Plaintiff filed her original complaint on July 12, 2019. With
the agreement of the Defendant, the Plaintiff filed an amended
complaint on Aug. 14, 2019. Again, with the agreement of the
Defendant, she filed the operative SAC on Sept. 30, 2019. The
Defendant filed the instant motion to dismiss on Oct. 21, 2019 to
which the Plaintiff opposed on Nov. 18, 2019.
Judge Burroughs granted in part and denied in part the Defendant's
motion to dismiss. Specifically, Counts I (Breach of Contract and
the Covenant of Good Faith and Fair Dealing) and III (Unjust
Enrichment) of the complaint are dismissed. Count II (Violation of
Chapter 93A) may go forward, insofar as the Plaintiff claims that
the Defendant's alleged double billing practice violated Chapter
93A.
Regarding Count I, Judge Burroughs finds that (i) the releases
agreed to by the Plaintiff do not bar the breach of contract claim
for the alleged double charging or, alternatively,
misrepresentation of the au pair's travel costs; (ii) even if the
Defendant engaged in the alleged double charging scheme, its
participation in such a scheme did not breach any contractually
obligated promise between the Defendant and the Plaintiff; and
(iii) the Plaintiff's claim that the Defendant breached the
covenant of good faith and fair dealing by charging a third party a
potentially duplicative service fee did not deny Plaintiff the
benefit of her bargain and does not implicate a contracted for
right or promise.
Regarding Count II, Judge Burroughs holds that (i) the claims are
sufficiently factually distinct to allow the 93A claim to go
forward; (ii) the Plaintiff has failed to allege that a reasonable
consumer would have acted differently in reliance on the
Defendant's alleged misrepresentations on its website; and (iii)
the Plaintiff has sufficiently pled that the Defendant's
undisclosed double charging caused her to pay an inflated cost for
travel expenses, and that charging both an au pair and the
Plaintiff a fee for the same service would influence a consumer's
decision to use the Defendant's services and the price of those
services.
Finally, regarding Count III, Judge Burroughs explains that the
First Circuit has recently clarified that a common law claim for
unjust enrichment fails because a party with an adequate remedy at
law cannot claim unjust enrichment. The viability of a plaintiff's
Chapter 93A claim is beside the point. A plaintiff's unjust
enrichment claims must be dismissed because an adequate remedy at
law was undoubtedly available to her through Chapter 93A. The
Plaintiff's unjust enrichment claim is therefore dismissed.
A full-text copy of the Court's Aug. 12, 2020 Memorandum & Order is
available at https://tinyurl.com/y3efxpnw from Leagle.com.
DEKALB COUNTY SCHOOL: T.H. Suit Seeks to Certify Class & Subclass
-----------------------------------------------------------------
In the class action lawsuit captioned as T.H., et al., v. DeKalb
County School District, et al., Case No. 1:19-cv-03268-TWT (N.D.
Ga.), the Plaintiffs ask the Court for an order:
1. certifying a class and subclass consisting of the
following:
Individuals with Disabilities Education Act (IDEA) Class:
"all youth detained at the DeKalb County Jail with
a disability, as defined by the IDEA"; and
Discrimination Subclass:
"all members of the IDEA Class who are qualified
individuals with a disability, as defined by the Americans
with Disabilities Act or Section 504 of the Rehabilitation
Act.; and
2. appointing Plaintffs' law firms as class counsel for the
IDEA Class and Discrimination Subclass.
The DeKalb County School District is a school district
headquartered at 1701 Mountain Industrial Boulevard in
unincorporated DeKalb County, Georgia, United States, near Stone
Mountain and in the Atlanta metropolitan area.
A copy of the Plaintiffs' Motion for Class Certification is
available from PacerMonitor.com at https://bit.ly/34KA0jp at no
extra charge.[CC]
The Plaintiffs are represented by:
Christina Wilson Remlin, Esq.
Aaron Finch, Esq.
Jonathan King, Esq.
Danielle Beth Rosenthal, Esq.
CHILDREN'S RIGHTS, INC.
1700 Northside Drive, Suite A7
PMB 1086
Atlanta, GA 30318
Telephone: (646) 831-3543
Facsimile: (212) 683-4015
E-mail: cremlin@childrensrights.org
afinch@childrensrights.org
jking@childrensrights.org
drosenthal@childrensrights.org
- and -
David G.H. Brackett, Esq.
Amanda Kay Seals
BONDURANT, MIXSON & ELMORE, LLP
1201 W. Peachtree Street
3900 One Atlantic Center
Atlanta, GA 30309
Telephone: (404) 881-4100
Facsimile: (404) 881-4111
E-mail: brackett@bmelaw.com
seals@bmelaw.com
- and -
Randee Waldman, Esq.
BARTON JUVENILE DEFENDER CLINIC
EMORY UNIVERSITY SCHOOL OF LAW
1301 Clifton Road
Atlanta, GA 30322
Telephone: (404) 727-6235
Facsimile: (404) 727-7851
E-mail: rwaldm2@emory.edu
- and -
Greg Hecht, Esq.
Michael W. Warner, Esq.
HECHT WALKER, P.C.
3340 Peachtree Road, Suite 1530
Atlanta, GA 30326
Telephone: (404) 348-4881
Facsimile: (678) 884-1257
E-mail: greg@hmhwlaw.com
michael@hmhwlaw.com
DIEBOLD NIXDORF: Continues to Defend NY Consolidated Class Suit
---------------------------------------------------------------
Diebold Nixdorf, Incorporated said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that the company
continues to defend a consolidated class action suit pending before
the U.S. District Court for the Southern District of New York.
In July and August 2019, shareholders filed putative class action
lawsuits alleging violations of federal securities laws in the
United States District Court for the Southern District of New York
and the Northern District of Ohio.
The lawsuits collectively assert that the Company and three former
officers made material misstatements regarding the Company's
business and operations, causing the Company's common shares to be
overvalued from February 14, 2017 to August 1, 2018.
The lawsuits have been consolidated before a single judge in the
United States District Court for the Southern District of New York
and lead plaintiffs appointed.
Diebold said, "While management remains confident that it has valid
defenses to these claims, as with any pending litigation, the
Company is unable to predict the final outcome of this matter."
No further updates were provided in the Company's SEC report.
Diebold Nixdorf, Incorporated, incorporated on August 11, 1876,
provides connected commerce services, software and technology. The
Company's geographic segments include North America (NA), Asia
Pacific (AP), Europe, Middle East and Africa (EMEA), and Latin
America (LA). These segments sell and service financial
self-service (FSS), retail solutions and security systems. The
Company provides connected commerce solutions to financial
institutions. The company is based in North Canton, Ohio.
DIRECT BUSINESS: Benitez Sues Over Unsolicited Telemarketing Acts
-----------------------------------------------------------------
The case, MARIANO BENITEZ, individually and on behalf of all others
similarly situated, Plaintiff v. DIRECT BUSINESS FINANCING INC.,
d/b/a EMC FINANCIAL; DOES 1 through 10, inclusive, Defendants, Case
No. 3:20-cv-02077-BEN-MDD (S.D. Cal., October 22, 2020) arises from
the Defendants' alleged negligent and willful violations of the
Telephone Consumer Protection Act.
According to the complaint, the Plaintiff received calls and text
on his cellular telephone number ending in -7919 beginning on or
around July 10, 2019 from the Defendants in an effort to sell or
solicit its services. The Defendants allegedly used an "automatic
telephone dialing system" (ATDS) and/or "artificial or prerecorded
voice" in placing calls and text message without obtaining "prior
express consent" from the Plaintiff and other similarly situated
individuals.
The Plaintiff contends that the Defendants' unsolicited calls and
text message have invaded his privacy and caused him to incur
certain charges or reduced telephone time for which he had
previously paid.
Direct Business Financing, Inc. is a small business loan company.
[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (323) 306-4234
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
DISCOVER FINANCIAL: Bid to Compel Arbitration in B&R Suit Pending
-----------------------------------------------------------------
Discover Financial Services said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 26, 2020, for the
quarterly period ended September 30, 2020, that the company has
filed a Letter Motion to Compel Arbitration in the class action
suit entitled, B&R Supermarket, Inc., d/b/a Milam's Market, et al.
v. Visa, Inc. et al.
On March 8, 2016, a class action lawsuit was filed against the
Company, other credit card networks, other issuing banks and EMVCo
in the U.S. District Court for the Northern District of California
(B&R Supermarket, Inc., d/b/a Milam's Market, et al. v. Visa, Inc.
et al.) alleging a conspiracy by defendants to shift fraud
liability to merchants with the migration to the EMV security
standard and chip technology.
Plaintiffs assert joint and several liability among the defendants
and seek unspecified damages, including treble damages, attorneys'
fees, costs and injunctive relief.
In May 2017, the Court entered an order transferring the entire
action to a federal court in New York that is presiding over
certain related claims that are pending in the actions consolidated
as MDL 1720.
On August 28, 2020, the Court granted Plaintiff's Motion to Certify
a Class.
Defendants appealed the ruling on September 11, 2020. Discover
filed a Letter Motion to Compel Arbitration on September 29, 2020.
Discover said, "The Company is not in a position at this time to
assess the likely outcome or its exposure, if any, with respect to
this matter, but will seek to vigorously defend against all claims
asserted by the plaintiffs."
Discover Financial Services operates as a credit card issuer and
electronic payment services company. The Company issues credit
cards and offers student and personal loans, as well as savings
products such as certificates of deposit and money market accounts.
Discover Financial Services manages automated teller machine
networks. The company is based in Riverwoods, Illinois.
EDISON INT'L: Bellwether Jury Trial Set for February 2021
---------------------------------------------------------
Edison International said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 30, 2020, that the bellwether jury
trial on certain fire only matters has been scheduled for February
16, 2021.
In December 2017, wind-driven wildfires impacted portions of
Southern California Edison Company's (SCE's) service territory,
causing loss of life, substantial damage to both residential and
business properties, and service outages for SCE customers. The
Ventura County Fire Department (VCFD) and the California Department
of Forestry and Fire Protection (CAL FIRE) have determined that the
largest of the 2017 fires originated on December 4, 2017, in the
Anlauf Canyon area of Ventura County (the investigating agencies
refer to this fire as the "Thomas Fire"), followed shortly
thereafter by the Koenigstein Fire. According to CAL FIRE, the
Thomas and Koenigstein Fires burned over 280,000 acres, destroyed
or damages an estimated 1,343 structures and resulted in two
fatalities.
As of October 20, 2020, SCE was aware of at least 319 lawsuits,
representing approximately 5,000 plaintiffs, related to the Thomas
and Koenigstein Fires naming SCE as a defendant.
One hundred and fifty-five of the 319 lawsuits also name Edison
International as a defendant based on its ownership and alleged
control of SCE. At least four of the lawsuits were filed as
purported class actions.
The lawsuits, which have been filed in the superior courts of
Ventura, Santa Barbara and Los Angeles Counties allege, among other
things, negligence, inverse condemnation, trespass, private
nuisance, and violations of the public utilities and health and
safety codes. The lawsuits have been coordinated in the Los Angeles
Superior Court.
Three categories of plaintiffs have filed lawsuits against SCE and
Edison International relating to the Thomas Fire, Koenigstein Fire
and Montecito Mudslides: individual plaintiffs, subrogation
plaintiffs and public entity plaintiffs.
An initial trial for a limited number of plaintiffs, sometimes
referred to as a bellwether trial, on certain fire only matters is
currently scheduled for February 16, 2021.
In November 2019, SCE and Edison International reached a settlement
with certain local public entity plaintiffs in the Thomas Fire,
Koenigstein Fire and Montecito Mudslides litigation under which SCE
paid those local public entity plaintiffs parties an aggregate of
$150 million and, other than as set forth below, the plaintiffs
released SCE and Edison International from all claims and potential
claims in the Thomas Fire, Koenigstein Fire and Montecito Mudslides
litigation and/or related to or arising from the Thomas Fire,
Koenigstein Fire or Montecito Mudslides.
Certain of the local public entity plaintiffs will retain the right
to pursue certain indemnity claims against SCE and Edison
International.
In September 2020, SCE reached the September 2020 Subrogation
Settlement with the Settling Subrogation Plaintiffs to resolve
those parties' collective claims arising from the Thomas Fire,
Koenigstein Fire or Montecito Mudslides.
Under the terms of the September 2020 Subrogation Settlement, SCE
paid the Settling Subrogation Plaintiffs an aggregate of $1.2
billion in October 2020 and also agreed to pay $0.555 for each
dollar in claims to be paid by the Settling Subrogation Plaintiffs
to their policy holders before July 15, 2023, up to an agreed upon
cap.
In the second and third quarters of 2020, SCE entered into
settlements with several hundred of the several thousand individual
plaintiffs in the 2017/2018 Wildfire/Mudslide Events litigation
under which it agreed to pay an aggregate of approximately $73
million to those individual plaintiffs.
Edison International and SCE did not admit liability as part of any
of the settlements described above.
Edison International, through its subsidiaries, engages in the
generation, transmission, and distribution of electricity in the
United States. It generates electricity through hydroelectric,
diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic
sources. Edison International was founded in 1886 and is based in
Rosemead, California. Edison International, incorporated on April
20, 1987, is the holding company of Southern California Edison
Company (SCE).
EDISON INT'L: Woolsey Bellwether Jury Trial Set for June 2021
-------------------------------------------------------------
Edison International said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 30, 2020, that the bellwether jury
trial in the purported class action suits related to the Woolsey
Fire, is currently scheduled for June 1, 2021.
In November 2018, wind-driven wildfires impacted portions of
Southern California Edison Company 's (SCE's) service territory and
caused substantial damage to both residential and business
properties and service outages for SCE customers. The largest of
these fires, known as the Woolsey Fire, originated in Ventura
County and burned acreage located in both Ventura and Los Angeles
Counties.
According to the California Department of Forestry and Fire
Protection (CAL FIRE), the Woolsey Fire burned almost 100,000
acres, destroyed an estimated 1,643 structures, damaged an
estimated 364 structures and resulted in three fatalities. Two
additional fatalities have also been associated with the Woolsey
Fire.
As of October 20, 2020, SCE was aware of at least 261 lawsuits,
representing approximately 4,908 plaintiffs, related to the Woolsey
Fire naming SCE as a defendant.
One hundred ninety-one of the 261 lawsuits also name Edison
International as a defendant based on its ownership and alleged
control of SCE. At least two of the lawsuits were filed as
purported class actions.
The lawsuits, which have been filed in the superior courts of
Ventura and Los Angeles Counties allege, among other things,
negligence, inverse condemnation, personal injury, wrongful death,
trespass, private nuisance, and violations of the public utilities
and health and safety codes. The Woolsey Fire lawsuits have been
coordinated in the Los Angeles Superior Court.
Three categories of plaintiffs have filed lawsuits against SCE and
Edison International relating to the Woolsey Fire: individual
plaintiffs, subrogation plaintiffs and public entity plaintiffs. An
initial jury trial for a limited number of plaintiffs, sometimes
referred to as a bellwether jury trial, is currently scheduled for
June 1, 2021.
In November 2019, SCE and Edison International reached a settlement
with certain local public entity plaintiffs in the Woolsey Fire
litigation under which SCE paid the local public entity plaintiffs
an aggregate of $210 million and those local public entity
plaintiffs released SCE and Edison International from all claims
and potential claims in the Woolsey Fire litigation and/or related
to or arising from the Woolsey Fire.
In the second and third quarters of 2020, SCE entered into
settlements with several hundred of the several thousand individual
plaintiffs in the 2017/2018 Wildfire/Mudslide Events litigation
under which it agreed to pay an aggregate of approximately $73
million to those individual plaintiffs.
Edison International and SCE did not admit liability as part of any
of the settlements.
Edison International, through its subsidiaries, engages in the
generation, transmission, and distribution of electricity in the
United States. It generates electricity through hydroelectric,
diesel/liquid petroleum gas, natural gas, nuclear, and photovoltaic
sources. Edison International was founded in 1886 and is based in
Rosemead, California. Edison International, incorporated on April
20, 1987, is the holding company of Southern California Edison
Company (SCE).
EL JOBITO: Fails to Properly Pay Overtime, Reyes Claims
-------------------------------------------------------
The case, JOSE REYES, on behalf of himself and all others similarly
situated, Plaintiff v. EL JOBITO SEAFOOD RESTAURANT INC., d/b/a EL
JOBITO RESTAURANT and JUAN ARIAS, individually, Defendants, Case
No. 1:20-cv-08816 (S.D.N.Y., October 22, 2020) arises from the
Defendants' alleged willful violations of the Fair Labor Standards
Act and the New York Labor Law.
The Plaintiff was employed by the Defendants from on or about June
2017 through September 2020 as a cook.
The Plaintiff asserts these claims:
-- The Defendants did not compensate him at the appropriate
overtime rate of pay for workweeks in which he worked more than 40
hours;
-- The Defendants failed to provide him any meal breaks
throughout his employment with them;
-- The Defendants failed to provide him with any notation or
any other documentation of his hours worked during that pay period
or his rate of pay; and
-- The Defendants failed to keep accurate records of hours
worked by employees.
El Jobito Seafodd Restaurant Inc. is a restaurant owned and
operated by Juan Arias. [BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, 3rd Floor
New York, NY 10007
Tel: (212) 323-6980
E-mail: jaronauer@aronauerlaw.com
ELMIRON: Faces Class Action in Canada Over Link to Vision Loss
--------------------------------------------------------------
Rockland County Times reports that Elmiron is a drug that has been
prescribed for years to treat interstitial cystitis -- a painful
condition faced by up to 12 million people in the U.S. Around twice
as many women as men are affected, with symptoms including urinary
urgency and a burning sensation in the bladder area. Lawsuits are
being brought in the U.S. and, more recently, Canada, alleging that
there is a link between the medication and vision loss. Legal
professionals allege that the makers of the drug have known that
the medication was linked to vision problems since 2018, but failed
to provide doctors and patients with this information.
Vision Loss Issues
Plaintiffs claim that the range of problems caused by Elmiron
include blurry vision, muted colors, and reading problems. In
Canada, an Elmiron class action lawsuit was recently filed, while
in the U.S., legal pressure is also mounting. In the U.S. some
firms are offering patients free representation, with fees or
percentages being charged only in the event that the lawsuits are
successful and compensation is obtained. In research conducted in
2018 and published in Ophthalmology, scientists presented the
results of the evaluation of six adult patients seen between 2015
and 2017. The findings showed that there was "a novel and possibly
avoidable maculopathy associated with chronic exposure to PPS
(pentosan polysulfate, the active ingredient in Elmiron).
A Review Of Patients
Later research conducted in 2019 and published by the American
Academy of Ophthalmology found that about 25% of patients with
significant exposure to Elmiron showed definite signs of eye
damage. The researchers added that this problem "could masquerade
as other known retinal conditions such as age-related macular
degeneration or pattern dystrophy." The damage caused by the
toxins, say the scientists, affects the central part of the retina,
which is vital for seeing things clearly and crisply. Their
research began with 140 patients who had taken around 5,000 Elmiron
pills over the course of a decade and a half. Around 65% of these
patients agreed to come in for an ocular exam, with 22 of them
showing "clear signs of drug toxicity." The researchers recommended
that patients who have no visual problems be screened for vision
problems at least once yearly. Those who do have signs of toxicity,
meanwhile, should talk to their specialist about discontinuing the
medication.
What Problems Can Arise From Drug Toxicity?
In addition to problems with sight, vision problems such as those
described can cause many other issues, ranging from mental health
issues to a higher risk of falling. One study published in JAMA
Ophthalmology in 2014 linked poor vision to a reduced life
expectancy. Additional issues can include cognitive decline,
difficulty learning, and a feeling of being discriminated against.
Therefore, it is important for those affected to seek specialist
medical and legal attention.
The plethora of cases against the manufacturers of Elmiron arise
from findings of a link between this drug and problems such as
blurry vision and difficulty reading. Currently cases have been
brought both in the U.S. and Canada, with lawyers calling those
affected to see them for advice. It is important to obtain
compensation if it is forthcoming, since visual problems can result
in a plethora of health issues that may require specialist care.
[GN]
ENTERPRISE FINANCIAL: Facing Parshall Putative Class Suit in Del.
-----------------------------------------------------------------
Enterprise Financial Services Corp. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 23,
2020, for the quarterly period ended September 30, 2020, that the
company is facing a putative class action suit entitled, Parshall
v. Seacoast Commerce Banc Holdings, et al., No. 1:99-cv-01300
Following the announcement on August 20, 2020 of the execution of
the definitive agreement related to the Company's acquisition of
Seacoast Commerce Banc Holdings (SCBH) and Seacoast Commerce Bank
(Seacoast), a lawsuit challenging the proposed transaction was
filed in the U.S. District Court for the District of Delaware.
The lawsuit is captioned Parshall v. Seacoast Commerce Banc
Holdings, et al., No. 1:99-cv-01300 (filed September 28, 2020).
This lawsuit challenging the proposed transaction is a putative
class action filed on behalf of the shareholders of SCBH and names
as defendants SCBH, its directors and Enterprise Financial Services
Corp (EFSC).
The complaint alleges that SCBH and its directors violated Section
14(a) of the Exchange Act by failing to disclose certain facts
about the financial projections of SCBH and EFSC and financial
analysis performed by SCBH's financial advisor.
The complaint further alleges that EFSC and SCBH's board of
directors violated Section 20(a) of the Exchange Act by acting as
control persons. The action seeks, among other relief, an order
enjoining completion of the proposed transaction.
Enterprise said, "The outcome of the pending litigation is
uncertain. If the case is not resolved, this lawsuit could prevent
or delay completion of the proposed transaction and result in
substantial costs, the magnitude of which cannot be predicted at
this time, to EFSC and SCBH, including any costs associated with
the indemnification of directors and officers. One of the
conditions to the closing of the SCBH acquisition is that no
injunction, order, judgement or decree prohibiting or making
illegal completion of the transaction or any of the other
transactions contemplated by the definitive agreement related to
the transaction will be in effect. As such, if plaintiff were
successful in obtaining an injunction prohibiting the completion of
the SCBH acquisition on the agreed-upon terms, then such injunction
may prevent the acquisition from being completed, or from being
completed within the expected timeframe. The defense or settlement
of any lawsuit or claim that remains unresolved at the time the
SCBH acquisition is completed may adversely affect EFSC's business,
financial condition, results of operations and cash flows. Such
litigation is common in connection with acquisitions similar to the
SCBH acquisition, regardless of any merits related to the
underlying acquisition. In this instance, the defendants believe
that the claims asserted against them in the lawsuit are without
merit and intend to defend the litigation vigorously."
Enterprise Financial Services Corp. operates as the financial
holding company for Enterprise Bank & Trust that offers banking and
wealth management services to individuals and corporate customers.
Enterprise Financial Services Corp was founded in 1988 and is
headquartered in Clayton, Missouri.
EQUIFAX INC: Accord in Financial Institutions MDL Wins Final OK
---------------------------------------------------------------
Equifax Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 22, 2020, for the quarterly
period ended September 30, 2020, that a court has granted final
approval of the settlement in the Financial Institutions MDL Class
Action.
On May 15, 2020, the Company entered into a settlement agreement to
resolve the consolidated financial institutions class action cases
pending before the MDL Court (the "Financial Institutions MDL
Litigation").
Under the settlement, the Company agreed to pay for valid claims
submitted by class members up to a maximum amount, reasonable
settlement administration and notice costs, and reasonable
attorneys' fees and expenses.
The Company also agreed to adopt and/or maintain certain business
practices related to its information security program.
The court granted final approval of the settlement on October 22,
2020.
Equifax Inc. provides information solutions and human resources
business process outsourcing services for businesses, governments,
and consumers. The company operates through four segments: U.S.
Information Solutions (USIS), International, Workforce Solutions,
and Global Consumer Solutions. Equifax Inc. was founded in 1899 and
is headquartered in Atlanta, Georgia.
EQUIFAX INC: Appeal from Class Cert. Order in Ontario Case Pending
------------------------------------------------------------------
Equifax Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 22, 2020, for the quarterly
period ended September 30, 2020, that the company's appeal in the
class action suit pending before the court in Ontario is pending.
Five putative Canadian class actions, four of which are on behalf
of a national class of approximately 19,000 Canadian consumers, are
pending against the company in Ontario, British Columbia and
Alberta.
Each of the proposed Canadian class actions asserts a number of
common law and statutory claims seeking monetary damages and other
related relief in connection with the 2017 cybersecurity incident.
In addition to seeking class certification on behalf of Canadian
consumers whose personal information was allegedly impacted by the
2017 cybersecurity incident, in some cases, plaintiffs also seek
class certification on behalf of a larger group of Canadian
consumers who had contracts for subscription products with Equifax
around the time of the incident or earlier and were not impacted by
the incident.
On December 13, 2019, the court in Ontario granted certification of
a nationwide class that includes all impacted Canadians as well as
Canadians who had subscription products with Equifax between March
7, 2017 and July 30, 2017 who were not impacted by the incident.
The company's motion for leave to appeal this decision was granted
in part, and the company's appeal is now pending.
All remaining purported class actions are at preliminary stages or
stayed.
Equifax Inc. provides information solutions and human resources
business process outsourcing services for businesses, governments,
and consumers. The company operates through four segments: U.S.
Information Solutions (USIS), International, Workforce Solutions,
and Global Consumer Solutions. Equifax Inc. was founded in 1899 and
is headquartered in Atlanta, Georgia.
EQUIFAX INC: Settlement in Pa. State Court Case Wins Final OK
-------------------------------------------------------------
Equifax Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 22, 2020, for the quarterly
period ended September 30, 2020, that the settlement in
Pennsylvania State Court Financial Institution Class Action, had
been granted final approval.
The Company entered into a settlement agreement to resolve the
individual claims brought by one of the original named plaintiffs
in the Financial Institutions MDL Litigation in the Court of Common
Pleas of Lawrence County, Pennsylvania on behalf of itself and a
class of financial institutions headquartered in Pennsylvania.
The claims asserted in this matter were substantially similar to
claims asserted by financial institutions that previously were
dismissed in the MDL proceeding for lack of standing.
The court granted approval of the settlement on July 13, 2020.
Equifax Inc. provides information solutions and human resources
business process outsourcing services for businesses, governments,
and consumers. The company operates through four segments: U.S.
Information Solutions (USIS), International, Workforce Solutions,
and Global Consumer Solutions. Equifax Inc. was founded in 1899 and
is headquartered in Atlanta, Georgia.
EXACT SCIENCES: Genomic Defends Flannery Class Action
-----------------------------------------------------
Exact Sciences Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 30, 2020, that Genomic Health
continues to defend an individual and class action complaint
entitled, Flannery v. Genomic Health, Inc., et al., C.A. No.
2020-0492.
In connection with the company's combination with Genomic Health,
on June 22, 2020, Suzanne Flannery, a purported former stockholder
of Genomic Health, filed a Verified Individual and Class Action
Complaint in the Delaware Court of Chancery, captioned Flannery v.
Genomic Health, Inc., et al., C.A. No. 2020-0492.
The complaint asserts individual and class action claims,
including: (i) a violation of 8 Del. C. Section 203 by Genomic
Health's former directors; (ii) conversion by Genomic Health, Exact
and Spring Acquisition Corp.; (iii) breach of fiduciary duty by
Genomic Health's former directors; (iv) breach of fiduciary duty by
a purported controlling group of former Genomic Health stockholders
comprised of funds managed by former Genomic Health directors,
Julian Baker and Felix Baker; and (v) aiding and abetting breach of
fiduciary duty against Exact, Spring Acquisition and Goldman Sachs
& Co. LLC, Genomic Health's financial advisor in the combination.
The complaint seeks, among other things, declaratory relief,
unspecified monetary damages and attorneys' fees and costs.
All defendants intend to move to dismiss the complaint.
Exact Sciences Corporation is a molecular diagnostics company with
an initial focus on the early detection and prevention of
colorectal cancer. Exact Sciences Corp. launched Cologuard in 2014,
the first stool DNA test for colorectal cancer. The company is
based in Madison, Wisconsin.
F&E AIRCRAFT: Fails to Pay Proper Wages Under FLSA, Vinasco Claims
------------------------------------------------------------------
INGRID VINASCO, individually and on behalf of similarly situated
individuals v. F&E AIRCRAFT MAINTENANCE, LLC, Case No. (S.D. Tex.,
Oct. 19, 2020), is a collective action seeking to recover unpaid
wages, liquidated damages, and other damages owed to workers,
together with attorneys' fees, interest, and costs of these
proceedings under the Fair Labor Standards Act.
The Plaintiff contends that the Defendant employs Cabin Interior
Maintenance workers at their home facility on an hourly rate but
subjects them to automatic lunch deductions while still requiring
them to work. FEAM subjects the Plaintiff and the Cabin Interior
Maintenance workers to time shaving by adjusting the clock in time
to show less or no overtime. When FEAM sends the Plaintiff and the
Cabin Interior Maintenance workers to work out of town, they pay
them a day rate and no overtime. When FEAM also sends the Plaintiff
and the other Cabin Interior Maintenance workers on out of town
projects, they regularly work more than 40 hours in a workweek but
the Defendant fails to pay them overtime, the complaint adds.
FEAM is an aircraft service company that provides line maintenance
services to foreign and domestic customers.[BN]
The Plaintiff is represented by:
Trang Q. Tran, Esq.
TRAN LAW FIRM
2537 S. Gessner, Suite 104
Houston, TX 77063
Telephone: (713) 223-8855
Facsimile: (713) 623-6399
E-mail: trang@tranlf.com
service@tranlf.com
FABFITFUN INC: Faces Gaston Class Action Suit Over Data Breach
--------------------------------------------------------------
CHERYL GASTON, Individually and on Behalf of All Others Similarly
Situated v. FABFITFUN, INC., Case No. 2:20-cv-09534 (C.D. Cal.,
Oct. 16, 2020), is brought on behalf of the Plaintiff and all
persons whose PII was compromised as a result of the Defendant's
failure to: (i) adequately protect its users' personally
identifiable information (PII), (ii) warn users of its inadequate
information security practices, and (iii) effectively monitor its
Website and e-commerce platform for security vulnerabilities and
incidents.
The Plaintiff contends that the Defendant's conduct amounts to
negligence and violates federal and state statutes. He alleges that
he and similarly situated customers have suffered injury as a
result of the Defendant's conduct. These injuries may include lost
or diminished value of their PII, and out-of-pocket expenses
associated with the prevention, detection, and recovery from
identity theft, tax fraud, and/or unauthorized use of their PII.
On September 18, 2020, FabFitFun began notifying customers and
state Attorneys General about a widespread data breach that
occurred from April 26, 2020 to May 14, 2020 and May 22, 2020 to
August 3, 2020. Hackers not only "scraped" many of the Defendant's
customers' full names from the Website by infecting it with a
malicious code, but hackers also stole customers' PII, including
names, addresses, payment card account numbers, card expiration
dates, and card verification codes, says the complaint.
The Defendant assures their customers that they are concerned about
PII security and claims: "We take reasonable and appropriate
measures to help keep information secure and to help prevent it
from becoming disclosed." The Defendant does not claim that it
abides by the Payment Card Industry Data Security Standard (PCI
DSS) compliance, which is a requirement for businesses that store,
process, or transmit payment card data.
Ms. Gaston purchased a subscription from FabFitFun on May 7, 2020
using her debit card. She received FabFitFun's Notice of Data
Breach on September 29, 2020.
FabFitFun is a popular lifestyle e-commerce retailer best known for
its flagship product, the FabFitFun Box. The FabFitFun Box includes
a selection of full-size products across beauty, fashion, fitness,
wellness, home, and technology-delivered each season.[BN]
The Plaintiff is represented by:
Betsy C. Manifold, Esq.
Rachele R. Byrd, Esq.
Marisa C. Livesay, Esq.
Brittany N. Dejong, Esq.
WOLF HALDENSTEIN ADLER
FREEMAN & HERZ LLP
750 B Street, Suite 1820
San Diego, CA 92101
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: manifold@whafh.com
byrd@whafh.com
livesay@whafh.com
dejong@whafh.com
- and -
M. Anderson Berry, Esq.
Leslie Guillon, Esq.
CLAYEO C. ARNOLD
A PROFESSIONAL LAW CORP.
865 Howe Avenue
Sacramento, CA 95825
Telephone: (916) 777-7777
Facsimile: (916) 924-1829
E-mail: aberry@justice4you.com
lguillon@justice4you.com
FACEBOOK INC: Final Hearing on $650MM BIPA Suit Deal Set for Jan. 7
-------------------------------------------------------------------
Judge James Donato of the U.S. District Court for the Northern
District of California granted the Plaintiffs' motion for
preliminary approval of the amended class action settlement in IN
RE FACEBOOK BIOMETRIC INFORMATION PRIVACY LITIGATION, Case No.
15-cv-03747-JD (N.D. Cal.). The Court will convene a hearing to
consider final approval of the settlement on Jan. 7, 2021 at 10:00
a.m.
Plaintiffs Nimesh Patel, Adam Pezen and Carlo Licata brought the
consolidated class action lawsuit against Defendant Facebook, for
violations of the Illinois Biometric Information Privacy Act
("BIPA"). The consolidated complaint alleges that Facebook
violated Sections 15(a) and 15(b) of BIPA by collecting and storing
the class members' biometric data in the form of scans of their
faces without prior notice or consent. Facebook harvested the
scans in connection with its "Tag Suggestions" program, which looks
for and identifies people's faces in photographs uploaded to
Facebook to promote user tagging.
On the eve of a trial setting conference in February 2020, the
parties reported that a settlement in principle had been reached
between the class and Facebook. After an extended hearing, the
Court denied the Plaintiffs' initial motion for preliminary
approval of the class action settlement over serious concerns about
the fairness of several terms to class members and the overall
adequacy of proposed relief, including the amount of damages to be
paid to the victims of Facebook's conduct.
The parties filed supplemental briefs renewing their preliminary
approval request, and negotiated revisions to the proposed
settlement to address the Court's concerns. In addition to other
changes in the revised agreement, Facebook will pay $650 million
into a non-reversionary cash fund. From this fund, settlement
administration expenses, taxes, and any class representative
incentive awards and counsel fee awards will be paid, and then the
balance will be distributed on a pro rata basis to each class
member who submits an approved claim. The $650 million amount is
$100 million more than the $550 million Facebook had previously
agreed to pay.
For a conduct remedy, Facebook has agreed to set the Face
Recognition default user setting to "off" and to delete all
existing and stored face templates for class members unless
Facebook obtains a class member's express consent after a separate
disclosure about how Facebook will use the face templates. It has
proposed an exception to this for class members who signed up for
Facebook after Sept. 3, 2019, because it has already implemented
these practices for such newer users. It also proposes to except
users who have manually enabled Face Recognition for themselves,
for obvious reasons. Silence or inaction by the user will be
deemed a withholding of consent, and the Face Recognition function
will be set on "off," and face templates deleted. Facebook will
also delete the face templates of any class members who have had no
activity on Facebook for three years.
Judge Donato held another hearing in July 2020, and took live
testimony from Facebook's Face Recognition Product Manager on
several issues related to the adequacy of the proposed notice to
the class and the class definition. The revised settlement
agreement and additional information presented by the parties have
resolved the Court's concerns. The Judge finds on a preliminary
basis that the settlement agreement appears to be fair, reasonable
and adequate for the class. Consequently, preliminary approval of
the class action settlement was granted.
The Court certified a class of Facebook users located in Illinois
for whom Facebook created and stored a face template after June 7,
2011, and the class definition is the same for purposes of
settlement. Nothing has changed to require the Court to revisit
the Rule 23 analysis in the class certification order, and the same
is true of the adequacy of the class representatives and the class
counsel.
Consequently, the Judge approved the class definition in the
settlement agreement, and the appointment of Nimesh Patel, Adam
Pezen and Carlo Licata as the class representatives, and Edelson
PC, Robbins Geller Rudman & Dowd LLP, and Labaton Sucharow LLP as
the class counsel. The proposed exclusion of persons from the
settlement class including judicial staff and other potentially
interested persons is approved.
The Judge approved the language and proposed forms of notice and
claim form attached as Exhibits A to H to the settlement agreement;
together they constitute the best practicable notice to individual
class members under the circumstances of the case. He directed the
parties to file a report every 14 days on the progress made in
providing notice through the channels approved. The parties should
be prepared to propose improvements in the delivery of notice based
on the data as it is collected. Status conferences will be set as
needed.
The following schedule is set:
a. Facebook to provide Class Notice List to Settlement
Administrator - September 2, 2020
b. Notice Date - Sept. 23, 2020
c. Last day class counsel to file motion for attorney's fees
and costs, and any incentive awards for class representatives -
Oct. 15, 2020
d. Claims Deadline - Nov. 23, 2020
e. Objection/Exclusion Deadline - Nov. 23, 2020
f. Last day to file motion for final approval of class
settlement - Dec. 3, 2020
g. Final Approval Hearing - Jan. 7, 2021 at 10:00 a.m.
Gilardi & Co. LLC is appointed as the settlement administrator, and
the American Civil Liberties Union of Illinois is preliminarily
approved as the potential cy pres recipient. The parties are
authorized to agree to and adopt further settlement-implementing
measures so long as they are consistent in all material respects
with the terms of the settlement agreement and do not limit or
impair the rights of the class. The issues of any incentive awards
to the named class representatives and any fees and costs to the
class counsel are reserved for the final approval hearing.
The parties are directed to follow the schedule set out above and
all other terms of their settlement agreement.
A full-text copy of the Court's Aug. 19, 2020 Order is available at
https://tinyurl.com/y5mojv29 from Leagle.com.
FIORELLA INSURANCE: Jones TCPA Suit Seeks to Certify Class
----------------------------------------------------------
In the class action lawsuit captioned as PAUL JONES, individually
and on behalf of all others similarly situated, v. FIORELLA
INSURANCE AGENCY, INC., Case No. 2:20-cv-14105-RLR (S.D. Fla.), the
Plaintiff asks the Court for an order:
1. certifying a class of:
"all persons or entities within the United States who (a)
received at least one call from Spartan Approach for
Fiorella; (b) made using a pre-recorded voice; (c) to
their cellular telephone numbers; (d) whose phone number
was provided to Fiorella by All Web Leads; (e) as a result
of a purported visit to usinsuranceonline.com and/or get-
instant-health-insurance.com; and (f) who did not receive
a call from Spartan Approach prior to the date on which
All Web Leads provided the lead to Fiorella."
2. appointing himself to serve as the class representative;
3. appointing Kaufman P.A. to serve as class counsel; and
4. directing himself to submit a proposed notice plan and
form of notice.
According to the complaint, Fiorella sells insurance policies. To
increase its customer base, Fiorella relies on its wholly owned
subsidiary call center, Spartan Approach, LLC, to engage in
telemarketing. However, instead of individually contacting
consumers, Spartan Approach employs a calling platform that makes
pre-recorded voice calls en masse but connects the call recipients
to agents only if, after hearing a pitch for insurance, the call
recipient "press[es]". Notably, the pre-recorded voice does not
identify Fiorella (or any other company) as the company that is
calling, likely in an attempt to avoid Telephone Consumer
Protection Act liability.
A copy of the Plaintiff's motion for class certification is
available from PacerMonitor.com at https://bit.ly/2GFIlwL at no
extra charge.[CC]
Attorneys for the Plaintiff and the proposed classes are:
Avi R. Kaufman, Esq.
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26 th Street
Miami, FL 33127
Telephone: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
rachel@kaufmanpa.com
FIRST EAGLE: Tola Sues Over Revision in Cert. of Incorporation
--------------------------------------------------------------
JOSEPH TOLA v. FIRST EAGLE ALTERNATIVE CAPITAL BDC, INC., a
Delaware Corporation, CHRISTOPHER J. FLYNN, EDMUND P. GIAMBASTIANI,
NANCY HAWTHORNE, JAMES D. KERN, DEBORAH MCANENY, and JANE MUSSER
NELSON, Case No. 2020-0905 (Del. Ch., Oct. 20, 2020), is a verified
class action complaint brought on behalf of the Plaintiff and all
other similarly situated public stockholders of First Eagle seeking
declaratory relief relating to the Company's violation of the
Delaware General Corporation Law and Delaware common law.
On August 3, 2020, the Company changed its name from "THL Credit,
Inc." to "First Eagle Alternative Capital BDC, Inc." in connection
with the approval of a new advisory agreement between the Company
and First Eagle Alternative Credit, LLC. In regard with the name
change, the First Eagle Board, without stockholder approval,
adopted the Company's third amended and restated certificate of
incorporation (the "Charter"). Section 5.4 of Article V of the
Charter entitled "Removal of Directors" provides that:
Any director may be removed for cause from office by the
action of the holders of at least seventy-five percent (75%)
of the then outstanding shares of the Corporation's capital
stock entitled to vote for the election of the respective
director. Any director may be removed with or without cause
by approval of at least sixty-six and two-thirds percent (66
2/3%) of the continuing directors.
The Plaintiff contends that the Removal Provisions (a) unlawfully
prohibit Company stockholders from removing directors without
cause, (b) unlawfully prohibit Company stockholders from removing
directors with simple majority support, and (c) impermissibly
expand directorial power to permit directors to remove fellow
directors. The Plaintiff is entitled to a declaration that the
Removal Provisions violate the DGCL and Delaware law generally and
are therefore invalid, unlawful, null, void, and of no further
effect, the complaint says.
The Plaintiff is a stockholder of First Eagle and has owned First
Eagle common stock at all material times alleged in the Complaint.
The Defendant First Eagle is a closed-end management investment
company that has elected to be treated as a business development
company under the Investment Company Act of 1940. The Individual
Defendants are directors of the company.[BN]
The Plaintiff is represented by:
Gregory V. Varallo, Esq.
Jacqueline Y. Ma, Esq.
Mark Lebovitch, Esq.
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
500 Delaware Avenue, Suite 901
Wilmington, DE 19801
- and -
Jeremy S. Friedman, Esq.
David F.E. Tejtel, Esq.
FRIEDMAN OSTER & TEJTEL PLLC
493 Bedford Center Road, Suite 2D
Bedford Hills, NY 10507
Telephone: (888) 529-1108
FLUOR ENTERPRISES: Mixon FLSA Suit Seeks Conditional Class Cert.
----------------------------------------------------------------
In the class action lawsuit captioned as WADE MIXON, on Behalf of
Himself and on Behalf of All Others Similarly Situated, v. FLUOR
ENTERPRISES, INC., Case No. 3:19-cv-00018-B (N.D. Tex.), the
Plaintiff asks the Court for an order:
1. granting his motion for conditional certification; and
2. in the alternative, granting his motion for equitable
tolling of the statute of limitations.
This case concerns an overtime dispute under the Fair Labor
Standards Act ("FLSA"). After Plaintiff Mixon filed this lawsuit,
147 Opt-In Plaintiffs joined this case. The Plaintiffs contend that
they were denied overtime wages as a result of Fluor's policy to
pay them straight time for overtime rather than time and one half
their regular rates of pay for each hour worked over 40 in a
workweek.
Fluor Corporation is an American multinational engineering and
construction firm headquartered in Irving, Texas. It is a holding
company that provides services through its subsidiaries in the
following areas: oil and gas, industrial and infrastructure,
government and power.
A copy of the Plaintiff's motion for conditional certification is
available from PacerMonitor.com at https://bit.ly/33Q0HnT at no
extra charge.[CC]
The Plaintiff is represented by:
Don J. Foty, Esq.
HODGES & FOTY, L.L.P.
4409 Montrose Blvd., Ste. 200
Houston, TX 77006
Telephone: 713 523 0001
Facsimile: 713 523 1116
E-mail: dfoty@hftrialfirm.com
FORSTER & GARBUS: Wins Summary Judgment in Musante FDCPA Suit
-------------------------------------------------------------
In the cases, JENNIFER MUSANTE, on behalf of herself and all others
similarly situated, Plaintiff, v. FORSTER & GARBUS, L.L.P., MARK
GARBUS, and RONALD FORSTER, Defendants. ROBYN G. DORMAN, on behalf
of herself and all others similarly situated, Plaintiff, v. FORSTER
& GARBUS, L.L.P., MARK GARBUS, and RONALD FORSTER, Defendants, Case
Nos. 19-cv-440 (SJF) (ARL), 19-cv-1314 (SJF) (SIL) (E.D. N.Y.),
Judge Sandra J. Feuerstein of the U.S. District Court for the
Eastern District of New York granted the Defendants' motions for
summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure.
Plaintiffs Musante and Dorman each commenced a putative class
action against Forster & Garbus ("F&G"), Garbus, and Forster
alleging that the Defendants have used unlawful collection
practices in violation of the Fair Debt Collection Practices Act
("FDCPA").
Defendant F&G was retained by TD Bank USA, N.A. to collect consumer
debts based upon account balances accrued in connection with Target
Credit Cards. Each Plaintiff is indebted to TDB. In an attempt to
collect the debts owed to TDB, F&G sent each Plaintiff a collection
letter. Musante was sent a letter dated Jan. 22, 2018 indicating a
total amount owed of $2,466.79, and Dorman's letter dated March 9,
2018 showed a total amount due of $3,866.88. To the right of the
addressee, each of the Letters includes a heading with specific
information regarding the debt. In addition to the total amount
owed or "Full Balance," the Letters display a "Minimum Amount
due."
The Defendants have submitted the "controlling TDB contract"
relevant to the Plaintiffs' TDB debts and notification of changes
made to the account terms in 2016. Paragraph 7 sets forth the
terms regarding accrual of interest. Paragraph 8 of the Account
Agreement, entitled "Fees," lists fees that may be assessed.
Several account terms in the Account Agreement were changed in
2016, becoming effective for Musante's account on Nov. 21, 2016 and
for Dorman's on Dec. 9, 2016.
The Account Agreement provides for the imposition of additional
fees for expediting additional or replacement cards and for
document reproduction. The Defendants have submitted an affidavit
from Ryan Flynn, Senior Agency Relations Business Partner for TDB.
Flynn stated the account balances set forth in the Letters were
increasing on a daily basis due to accruing interest and were also
subject to additional late charges and other charges such as
bounced check fees.
Musante and Dorman filed their complaints on Jan. 22, 2019 and
March 6, 2019, respectively, and amended complaints were filed in
both cases on April 7, 2019. While the original complaints
differed from one another in some aspects including the order in
which the claims were presented, the amended complaints are
identical.
The amended complaints assert five causes of action against the
Defendants arising under sections 1962g(a)(1), 1692e, 1692e(2)(A),
1692e(10). The Plaintiffs claim that the advisement that interest,
late charges and other charges may continue to accrue was false,
deceptive, or misleading because (1) TDB had no right under the
Account Agreement to impose "other charges," and; (2) late charges
were actually accruing. They further claim that the least
sophisticated consumer could believe that timely payment of the
minimum amount due would prevent the accrual of interest, late
charges or other charges.
The Defendants move for summary judgment on the first three claims,
contending, inter alia, that: (1) utilization of "safe harbor"
language insulates them from liability; (2) the fact that late
charges were accruing on the Plaintiffs' accounts renders the
statement true; and (3) the Plaintiffs' argument that the least
sophisticated consumer could believe that payment of the minimum
amount due would prevent the accrual of interest, late charges and
other charges is frivolous.
In their opposition papers, the Plaintiffs withdraw their claims
againstDefendants Garbus and Forster. Hence, all claims against
these individuals Defendants are dismissed.
The Plaintiffs' first two claims arise from the Letters' use of
safe harbor language stating that that "depending upon your account
agreement with the creditor, interest, late charges and other
charges may continue to accrue on your account." They argue that
the language is false, deceptive, or misleading because (1) the
Account Agreement allowed TDB to assess interest and late charges,
but not "other charges," and (2) late charges were, in fact,
accruing.
Judge Feuerstein holds that the Plaintiffs' challenge to the safe
harbor language fails because where the safe harbor language
references possible increases in interest, late charges, and other
charges, it is only necessary for one of the three components to
change. As interest was accumulating on the Plaintiff's debt, the
Letter's accuracy does not need to specify which of those
components fluctuate nor does it require all three to do so.
The Plaintiffs' second claim is that the conceded fact that late
charges were, in fact, accruing leads to the conclusion that the
safe harbor's advisement that such charges "may" be imposed was
false, deceptive, and misleading under the FDCPA. The argument has
been raised previously, and consistently rejected, in the District,
and is similarly rejected in the case. F&G is protected by the
safe harbor language and thus there is no violation of either
Section 1692e or Section 1692g. Each of the Letters complies with
these sections as it lists the actual amount due (rather than an
estimated amount), states that that amount may increase due to
interest or other charges, and provides a way for the debtor to
contact the debt collector. It is all the FDCPA requires.
In their third claim, the Plaintiffs claim that the least
sophisticated consumer could believe that payment of the Minimum
Amount due by the specified date would prevent the accrual of
interest, late charges and other charges. The Judge has considered
the single case relied upon the Plaintiffs in support of their
argument, Ortiz v. Advanced Call Center Techs., LLC. The Ortiz
court, in deciding a motion to dismiss, found that the letter at
issue implied that payment of the amount currently due would
prevent accrual of additional interest and fees. The reported
decision in Ortiz does not include the entire letter, and while it
seems to have used similar language, it is not identical to the
language used in the Letters. In light of the factual disparities,
the case is not persuasive. The Judge has considered the
Plaintiffs' remaining arguments and finds them to be without
merit.
In the final paragraph of their opposition, the Plaintiffs include
a pro forma request for an opportunity to further amend the
complaints to the extent that the amended complaints do not conform
to the contract which governed their debts. The Plaintiffs do not
offer any excuse for their failure to request leave to amend
earlier. Putting aside any issue regarding the timeliness of the
request, the Plaintiffs' perfunctory request is deficient in that
it fails to provide any proposed theories or additional facts that
would raise their claims from implausible to plausible. The
Plaintiffs fail to explain how adding references to the Account
Agreements would cure any deficiency in the pleadings. As
amendment would be futile, leave to amend these claims is denied.
For the foregoing reasons, Judge Feuerstein (i) withdrew the
Plaintiffs' claims against Individual Defendants Garbus and
Forster; (ii) granted the Defendant's motions for summary judgment
in Musante and Dorman; and (3) denied the Plaintiffs' request to
further amend their complaints. The Clerk of the Court is directed
to enter judgment and close both cases.
A full-text copy of the Court's Aug. 12, 2020 Memorandum & Order is
available at https://tinyurl.com/yxqn4gjo from Leagle.com.
FRESH FARMS: Class Cert. Bid in Yarger Suit Denied as Premature
---------------------------------------------------------------
In the case, DANYALE YARGER, on behalf of herself and those
similarly situated, Plaintiff, v. FRESH FARMS, LLC, Defendant, Case
No. 2:19-CV-2767-JAR-JPO (D. Kan.), Judge Julie A. Robinson of the
U.S. District Court for the District of Kansas (i) granted Fresh
Farms' Motion to Set Aside Clerk's Entry of Default, and (ii)
granted in part and denied in part without prejudice the
Plaintiff's Motion to Certify Class and for Leave to Take Discovery
Prior to Entry of Final Judgment.
In the putative class action, Plaintiff Yarger alleges that
Defendant Fresh Farms violated the Telephone Consumer Protection
Act ("TCPA"). The Plaintiff filed her Complaint in the matter on
Dec. 19, 2019.
The Plaintiff, a Kansas resident, alleges that Fresh Farms, a South
Dakota wholesaler that delivers fruit and vegetables to customers
nationwide, violated the TCPA, by sending unsolicited, automatic
text messages to the Plaintiff's and the putative class members'
cellular phones. She alleges that she received an unsolicited text
message advertisement from Fresh Farms on Nov. 7, 2019.
Under Fed. R. Civ. P. 23(b)(2) and 23(b)(3), the Plaintiff seeks
certification of a proposed class consisting of all persons
throughout the United States who, at any time between Dec. 19, 2015
and the present: (1) subscribed to a cellular telephone service;
and (2) received, at the telephone number assigned to such service,
one or more automated text messages from Fresh Farms.
The Plaintiff omits from the class definition the
requirement—previously included in her Complaint -- that class
members be persons for whom the Defendant did not claim to have
obtained prior express written consent, or claim to have obtained
prior express written consent in the same manner they claim to have
obtained prior express written consent from the Plaintiff. She
states that she omitted the requirement from the class definition
because "express written consent" is an affirmative defense to a
claim for violation of the TCPA. Yet Fresh Farms has not entered an
appearance in the case, has not asserted an "express written
consent" defense and has thereby waived the defense, and has not
presented any evidence of such consent as to her or any other
member of the proposed class.
The Plaintiff seeks appointment as the class representative; her
attorneys' appointment as the class counsel; declaratory and
injunctive relief; an award of damages under Section 227(b)(3)(B);
treble damages under Section 227(b)(3)(C); attorneys' fees, costs,
and expenses under Rule 23; and pre- and post-judgment interest.
She seeks up to $1,500 in damages for each text message sent in
violation of the TCPA.
On March 17, 2020, the Plaintiff filed an application for default,
which showed that Fresh Farms had been served with the Complaint on
Dec. 23, 2019, but had failed to appear or file an answer within
the 21-day deadline set forth in Fed. R. Civ. P. 12(a). The Clerk
entered default against Fresh Farms on March 18, 2020.
On April 28, 2020, the Plaintiff filed a motion for class
certification and for leave to take discovery prior to the entry of
a final default judgment. Fresh Farms' response to that motion was
initially due on May 12, 2020. On that date, Fresh Farms made its
first appearance in the action, filing both a motion for an
extension of time to respond to the Plaintiff's class certification
motion and a motion to set aside the Clerk's entry of default. The
Court extended Fresh Farms' deadline to respond to the Plaintiff's
motion for class certification to June 11, 2020, and then later
extended it again to July 6, 2020.
After the Plaintiff opposed Fresh Farms' motion to set aside the
Clerk's entry of default, however, Fresh Farms' attorney, Brian
Baggott, filed a motion to withdraw from the matter. Mr. Baggott
indicated that the primary reason for his withdrawal was that Fresh
Farms wished to terminate his representation due to lack of
financial resources. Mr. Baggott attached to his motion
documentation that he advised Fresh Farms that it could not, as a
limited liability company, represent itself in litigation. He also
advised Fresh Farms of its July 6 deadline to oppose the
Plaintiff's motion for class certification and for leave to take
discovery prior to entry of a final default judgment.
Magistrate Judge James P. O'Hara granted Mr. Baggott's motion to
withdraw on June 18, 2020, and then on July 7, 2020, issued a
Notice and Order to Fresh Farms warning that limited liability
companies, like other corporate entities, may not proceed pro se
nor be represented by a non-attorney corporate officer. Thus, by
Aug. 3, 2020, new counsel must enter an appearance for Fresh Farms.
Fresh Farms is warned that if it fails to obtain counsel to
represent it in the action by the set date, default judgment likely
will be entered against it.
August 3 has passed, but no new counsel has entered an appearance
on Fresh Farms' behalf. Although the Court twice extended Fresh
Farms' deadline to respond to the Plaintiff's motion for class
certification and for leave to take discovery, Fresh Farms did not
respond, nor did it file a reply in support of its motion to set
aside the Clerk's entry of default. Fresh Farms also failed to
seek leave to answer out of time.
The Clerk entered default against Fresh Farms after it failed to
appear or defend within 21 days of receiving notice of the
Plaintiff's Complaint.
The case is before the Court on Fresh Farms' Motion to Set Aside
Clerk's Entry of Default and the Plaintiff's Motion to Certify
Class and for Leave to Take Discovery Prior to Entry of Final
Judgment. While Fresh Farms has filed neither a reply in support
of it motion to set aside default nor a response in opposition to
the Plaintiff's motion for class certification and for leave to
take discovery, the time for doing so has passed and the Court is
prepared to rule.
Fresh Farms submitted the declaration of its CEO, Irina
Kleinsasser, stating that when the TCPA lawsuit was filed and
served, Fresh Farms did not have the financial resources to consult
and to hire a TCPA attorney to prepare and file a response or to
otherwise represent Fresh Farms in the lawsuit. Instead, Fresh
Farms "consulted" with a local South Dakota attorney who had "no
experience with the TCPA."
The Plaintiff counters that after Fresh Farms was served with the
summons and Complaint on Dec. 23, 2019, it chose to ignore the
lawsuit for months. She points out that Kleinsasser's declaration
tacitly acknowledges that Fresh Farms was aware of the lawsuit at
the time of service.
Judge Robinson agrees with the Plaintiff that Fresh Farms' failure
to appear in the case until months after service amounts to
culpable conduct rather than inadvertence or simple neglect. Its
CEO does not appear to be a stranger to the legal process. Yet
despite having knowledge of the suit at the time it was filed in
December 2019, or at the latest in mid-February 2020, Fresh Farms
failed to appear, seek an extension of time to respond, or
otherwise communicate with the Court.
Fresh Farms' explanation that it did not have the resources to hire
a "TCPA attorney" is not a persuasive justification for having
failed to respond until nearly five months after service. No
particular TCPA expertise is required to seek an extension of time
to respond, nor does Fresh Farms' contention that it lacks the
resources to participate in this case excuse it from its
obligations under the Federal Rules of Civil Procedure. Further,
despite filing a motion to set aside the Clerk's entry of default,
Fresh Farms never sought leave to answer out of time.
In light of Fresh Farms' continuing failure to participate in the
case, and because the litigation has been essentially halted due to
Fresh Farms' unresponsiveness, Judge Robinson denied Fresh Farms'
motion to set aside the Clerk's entry of default.
Turning to the Plaintiff's Motion for Class Certification and for
Leave to Take Discovery Prior to Entry of Final Judgment, Judge
Robinson finds that the Plaintiff's request for class certification
is premature. Regardless of whether the Plaintiff intended her
early motion for class certification merely as a placeholder -- and
despite the fact that the Plaintiff's well-pleaded allegations are
deemed admitted due to Fresh Farms' default -- Judge Robinson
cannot conduct the required, rigorous Rule 23 analysis without the
benefit of a more developed factual record.
Although the Plaintiff would certainly fit within the broader group
of persons to whom Fresh Farms allegedly sent text advertisements
both with and without prior written consent, the Court presently
lacks a definite understanding of the nature of the class Plaintiff
seeks to represent, and the unclear and/or shifting class
definition complicates the application of Rule 23 at this early
stage. In her discretion, Judge Robinson finds that a ruling on
whether the requirements of Rule 23(a) and (b) are satisfied should
await additional discovery on the scope and contours of the
purported class and a renewed motion for class certification.
While the Plaintiff's motion for class certification is premature,
Judge Robinson finds that the Plaintiff's request for leave to
conduct discovery prior to the entry of a final default judgment is
well-taken. It would be unjust to prevent her from attempting to
demonstrate the elements for certification of a class without the
benefit of discovery, due to the Defendant's failure to participate
in the case. The Judge, therefore, granted the Plaintiff 90 days
from the date of the Order to conduct such discovery, after which
the Plaintiff may renew her motion for class certification, with
clarification of the proposed class, and ultimately seek a final
default judgment.
For these reasons, Judge Robinson granted in part and denied in
part without prejudice the Plaintiff's Motion to Certify Class and
for Leave to Take Discovery Prior to Entry of Final Judgment. The
motion for leave to take discovery is granted; the motion to
certify is denied without prejudice.
A full-text copy of the Court's Aug. 12, 2020 Memorandum & Order is
available at https://tinyurl.com/yy2udejy from Leagle.com.
GARDNER-WEBB UNIVERSITY: Blind Can't Access Web Site, Hedges Says
-----------------------------------------------------------------
DONNA HEDGES, ON BEHALF OF HERSELF AND ALL OTHER PERSONS SIMILARLY
SITUATED, v. GARDNER-WEBB UNIVERSITY, Case No. 1:20-cv-08717
(S.D.N.Y., Oct. 19, 2020), asserts claims against the Defendant for
its failure to design, construct, maintain, and operate its Web
site to be fully accessible to and independently usable by the
Plaintiff and other blind or visually-impaired people.
The Defendant's denial of full and equal access to its Web site,
https://gardner-webb.edu/, and therefore denial of its goods and
services offered thereby, is a violation of the Plaintiff's rights
under the Americans with Disabilities Act, according to the
complaint. Because the Defendant's Web site is not equally
accessible to blind and visually-impaired consumers, the Defendant
violates the ADA.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Web site will become and remain accessible to blind
and visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person, who
requires screen-reading software to read Web site 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.
The Defendant operates the Gardner-Webb online college as well as
the Gardner-Webb website and advertises, markets, and/or operates
in the State of New York and throughout the United States.[BN]
The Plaintiff is represented by:
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
E-mail: Jeffrey@gottlieb.legal
danalgottlieb@aol.com
GLADIATOR ENERGY: Pruneda Sues Over Unpaid Overtime Wages
---------------------------------------------------------
Eric Pruneda, Individually and on behalf of All Others Similarly
Situated v. GLADIATOR ENERGY, LLC, Case No. 4:20-cv-03556 (S.D.
Tex., Oct. 16, 2020), is brought under the Fair Labor Standards
Act, for declaratory judgment, monetary damages, liquidated
damages, prejudgment interest, and costs, including reasonable
attorneys' fees, as a result of the Defendant's failure to pay the
Plaintiff overtime compensation for all hours worked in excess of
40 hours per week.
The Plaintiff regularly worked over forty hours in a one-week
period. The Plaintiff estimates he generally worked between 90 and
100 hours per week. Despite the entitlement of the Plaintiff to
overtime payments under the FLSA, the Defendant failed to pay the
Plaintiff an overtime rate of one and one-half times his regular
rate of pay for all hours worked over 40 in each week. The
Defendant's failure to pay the Plaintiff all overtime wages owed
was willful, says the complaint.
The Plaintiff was employed by the Defendant as a Service Supervisor
from February of 2019 until March of 2020.
Gladiator Energy LLC is located in Houston, TX, United States and
is part of the Business Services Sector Industry.[BN]
The Plaintiff is represented by:
Merideth Q. McEntire, Esq.
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
One Financial Center
650 South Shackleford, Suite 411
Little Rock, AR 72211
Phone: (501) 221-0088
Facsimile: (888) 787-2040
Email: merideth@sanfordlawfirm.com
april@sanfordlawfirm.com
GOODFELLA'S PIZZA: Vineyard Sues to Recover Unpaid Wages
--------------------------------------------------------
Angel Vineyard, individually and on behalf of similarly situated
persons v. GOODFELLA'S PIZZA, INC. and AARON FOX, Case No.
3:20-cv-00441 (E.D. Tenn., Oct. 16, 2020), is brought under the
Fair Labor Standards Act, seeks to recover unpaid wages owed to
Plaintiff and similarly situated delivery drivers employed by the
Defendants at its Domino's stores.
The Defendants employ delivery drivers who use their own
automobiles to deliver pizza and other food items to their
customers. However, instead of reimbursing delivery drivers for the
reasonably approximate costs of the business use of their vehicles,
the Defendants use a flawed method to determine reimbursement rates
that provides such an unreasonably low rate beneath any reasonable
approximation of the expenses they incur that the drivers'
unreimbursed expenses cause their wages to fall below the federal
minimum wage during some or all workweeks, says the complaint.
The Defendants operate numerous Domino's Pizza franchise stores.
The Plaintiff was employed by the Defendants from August of 2018 to
September of 2020 as a delivery driver at the Defendants' Domino's
stores. [BN]
The Plaintiff is represented by:
J. Forester, Esq.
FORESTER HAYNIE PLLC
400 N. St. Paul Street, Suite 700
Dallas, TX 75201
Phone: (214) 210-2100
Fax: (214) 346-5909
Email: jay@foresterhaynie.com
GOOGLE LLC: Valencia-Torres Sues Over Illegal Mobile Gambling Games
-------------------------------------------------------------------
MARIA VALENCIA-TORRES, on behalf of himself and all others
similarly situated, v. GOOGLE, LLC and GOOGLE PAYMENT CORP., Case
No. 2:20-cv-01651-SGC (N.D. Ala., Oct. 21, 2020), seeks to recover
money lost to illegal gambling pursuant to Section 87-1-5 of the
Code of Mississippi.
According to the complaint, Google promotes, enables, and profits
from games downloaded from its Google Play Store and played by
numerous Mississippi residents that constitute illegal gambling
under the statutory law and the strong public policy of the state
of Mississippi.
Ms. Maria Valencia-Torres is an adult resident citizen of the state
of Alabama, residing in Shelby County, Alabama.
Google, LLC is an American multinational technology company that
specializes in Internet-related services and products, which
include online advertising technologies, search engine, cloud
computing, software, and hardware. Google Payment Corp. provides
in-app payment processing services to Android app developers and
Android users, collecting a 30% commission on most in-app purchases
such as the ones made the basis of this lawsuit.[BN]
The Plaintiff is represented by:
D. Frank Davis, Esq.
John E. Norris, Esq.
Wesley W. Barnett, Esq.
Dargan M. Ware, Esq.
DAVIS & NORRIS, LLP
2154 Highland Avenue South
Birmingham, AL 35205
Telephone: 205 930 9900
Facsimile: 205 930 9989
E-mail: fdavis@davisnorris.com
jnorris@davisnorris.com
wbarnett@davisnorris.com
dware@davisnorris.com
GOOGLE: Herrera Sues Over Android Mobile App Market Monopoly
------------------------------------------------------------
KONDOMAR HERRERA, on behalf of herself and all others similarly
situated, v. GOOGLE LLC, a Delaware limited liability company, Case
No. 5:20-cv-07365 (N.D. Cal., Oct. 20, 2020), is a class action
complaint for damages and injunctive relief against Google for
violations of Sections 1 and 2 of the Sherman Act, and for
violations of the California's Cartwright Act.
The Plaintiff contends that Google has abused and maintained its
monopoly power in the Android Mobile App Distribution Market
through restrictive, non-negotiable agreements with mobile app
developers -- who must choose between complying with Google's
draconian terms of use or exit Google's ecosystem. To have a mobile
app listed on the Google Play Store, mobile app developers must
agree and have agreed with Google to not license their mobile app
to any rival app stores. Indeed, Google's developer agreements
mandate that developers may not "make available any Product that
has a purpose that facilitates the distribution of software
applications and games for use on Android devices outside of Google
Play." This has enabled Google to secure the most desired and
highest quality mobile apps while simultaneously foreclosing access
to mobile apps by rival app stores, the Plaintiff adds.
Kondomar Herrera is a natural person who resides in Queens County,
New York. The Plaintiff purchased and paid Google for one or more
apps through the Google Play Store and purchased and paid Google
directly for in-app digital content through an app purchased on the
Google Play Store within the last four years.
Google owns and operates the largest app store on earth, the Google
Play Store. The Google Play Store is available to all mobile device
users running Google's Android operating system. The Google Play
Store offers users the choice of more than 2.96 million apps, and,
in 2019, users worldwide downloaded those apps more than 84.3
billion times.[BN]
The Plaintiff is represented by:
Laurence D. King, Esq.
Mario M. Choi, Esq.
Robert N. Kaplan, Esq.
Hae Sung Nam, Esq.
Frederic S. Fox, Esq.
Donald R. Hall, Esq.
Aaron L. Schwartz, Esq.
KAPLAN FOX & KILSHEIMER LLP
1999 Harrison Street, Suite 1560
Oakland, CA 94612
Telephone: (415) 772-4700
Facsimile: (415) 772-4707
E-mail: lking@kaplanfox.com
mchoi@kaplanfox.com
rkaplan@kaplanfox.com
hnam@kaplanfox.com
ffox@kaplanfox.com
dhall@kaplanfox.com
aschwartz@kaplanfox.com
H & L PIZZA: Miller-Peppard Sues Over Unpaid Minimum and OT Wages
-----------------------------------------------------------------
MITCHELL MILLER-PEPPARD, individually and on behalf of similarly
situated persons, v. H. AND L. PIZZA, INC. d/b/a Domino's Pizza and
HASSAN JANBAKHSH, individually, Case No. 6:20-cv-00213-CHB (E.D.
Ky., Oct. 21, 2020), is a collective action lawsuit under the Fair
Labor Standards Act (FLSA), the Kentucky Wage and Hour Act, and the
Kentucky common law to recover unpaid minimum wages and overtime
hours owed to the Plaintiff and similarly situated delivery drivers
employed by the Defendants at its Domino's Pizza stores.
The Defendants operate numerous Domino's Pizza franchise stores.
The Defendants employ delivery drivers who use their own
automobiles to deliver pizza and other food items to their
customers. However, instead of reimbursing delivery drivers for the
reasonably approximate costs of the business use of their vehicles,
the Defendants use a flawed method to determine reimbursement rates
that provides such an unreasonably low rate beneath any reasonable
approximation of the expenses they incur that the drivers'
unreimbursed expenses cause their wages to fall below the minimum
wage during some or all workweeks, the Plaintiff contends.[BN]
The Plaintiff is represented by:
David O'Brien Suetholz, Esq.
Joe P. Leniski, Jr., Esq.
BRANSTETTER, STRANCH &
JENNINGS, PLLC
515 Park Avenue
Louisville, KY 40208
Telephone: (502) 636-4333
E-mail: davids@bsjfirm.com
joeyl@bsjfirm.com
HANOVER INSURANCE: Fails to Reimburse Medical Expenses, MSP Claims
------------------------------------------------------------------
MSP RECOVERY CLAIMS, SERIES LLC, AND MSPA CLAIMS 1, LLC, v. THE
HANOVER INSURANCE GROUP, INC., CITIZENS INSURANCE COMPANY OF
AMERICA, MASSACHUSETTS BAY INSURANCE COMPANY, Case No.
1:20-cv-24330 (S.D. Fla., Oct. 21, 2020), alleges that the
Defendants have failed to honor the Plaintiffs' primary payer
obligations under the Medicare Secondary Payer provisions of the
Social Security Act, by failing to pay for or reimburse medical
expenses resulting from injuries sustained in automobile and other
accidents.
As a result of the Defendants' misconduct, those accident-related
medical expenses were paid by Medicare Advantage Organizations, as
well as first tier and downstream actors who ultimately paid for
Medicare beneficiaries' accident-related medical expenses pursuant
to risk-sharing agreements authorized under 42 U.S.C. section
1395w-22(b)(4) (these Medicare Advantage payors are hereinafter
referred to collectively as "MA Plans"). Further, the Defendants
have also failed to reimburse the Plaintiffs and the Class Members
for accident-related medical expenses upon entering into
settlements with Medicare beneficiaries, says the complaint.
As a result, the cost of those accident-related medical expenses
has been borne by Medicare and MA Plans to the detriment of the
Medicare Trust Funds and the public. The Plaintiffs and the class
are entitled to be paid or reimbursed at industry standard rates by
the defendant primary payers.
The Defendants are auto and/or other liability insurers that
provide either no-fault or med-pay insurance to their customers,
including Medicare beneficiaries enrolled under Part C of the
Medicare Act.[BN]
The Plaintiffs are represented by:
John H. Ruiz, Esq.
Michael O. Mena, Esq.
MSP RECOVERY LAW FIRM
2701 S. LeJeune Road, 10th Floor
Coral Gables, FL 33134
Telephone: (305) 614-2222
E-mail: jruiz@msprecoverylawfirm.com
mmena@msprecoverylawfirm.com
- and -
Francesco Zincone, Esq.
Eduardo Bertran, Esq.
J. Alfredo Armas, Esq.
ARMAS BERTRAN ZINCONE
4960 SW 72nd Avenue, Suite 206
Miami, FL 33155
Telephone: (305) 661-2021
E-mail: fzincone@armaslaw.com
ebertran@armaslaw.com
alfred@armaslaw.com
HARBOR FREIGHT: Jack Stand Lawsuit Filed After Recall
-----------------------------------------------------
carcomplaints.com reports that a Harbor Freight jack stand lawsuit
alleges 1.7 million stands in the U.S. were sold with defects that
made the jack stands too dangerous to use.
The jack stand class action lawsuit includes all consumers
nationwide who purchased Harbor Freight jack stands with item
numbers 56371, 61196 or 61197.
The lawsuit follows a Pittsburgh Automotive jack stand recall of
3-ton and 6-ton heavy duty steel jack stands sold by Harbor
Freight.
However, consumers who suffered property damage or injuries caused
by the jack stands are not included in the class action lawsuit.
According to the lawsuit, every jack stand has manufacturing
defects which cause the ratchet teeth on the jack stand lifting
extension post to inconsistently engage the pawl deep enough. In
addition, the 3-ton jack stands allegedly have inconsistent
location indexing of the pawl armature holes.
Georgia plaintiff Markeith Mitchell purchased the Pittsburgh
Automotive 6-ton jack stands (part number 61197) and used them a
few times but allegedly experienced slip on the ratcheting
mechanism while lifting his truck.
Mr. Mitchell says he had safety mechanisms in place to catch the
truck before it slammed to the ground.
The plaintiff says he stopped using the jack stands because he felt
they were dangerous.
According to the lawsuit, Mitchell tried to return the jack stands
to the Harbor Freight store but a customer representative told him
the jack stands were no longer under warranty and couldn't be
returned.
The plaintiff alleges he received no value from the stands and he
tossed them out because they were too dangerous to use.
The lawsuit says the jack stands are unsafe due to manufacturing
problems caused by aging in the tooling. The last thing a consumer
needs from a jack stand is for it to collapse while under load, but
the class action alleges that is exactly what makes the Harbor
Freight stands so dangerous.
The lawsuit says sales of the jack stands were negligent because
the stands were "unmerchantable" and unfit for their intended
purposes. The jack stands were also allegedly unreasonably
dangerous and caused damage to all buyers because the "jack stands
were worthless in the condition they were purchased."
The Harbor Freight jack stand lawsuit brings claims for breach of
warranty, negligence and products liability.
The Harbor Freight jack stand lawsuit was filed in the U.S.
District Court for the Middle District of Georgia, Macon Division:
Mitchell, et al., v. Harbor Freight Tools USA, Inc.
The plaintiff is represented by Steven N. Newton, LLC, and Davis &
Norris, LLP. [GN]
HEALTHCARE SERVICES: Continues to Defend E.D. Pa. Securities Suit
-----------------------------------------------------------------
Healthcare Services Group, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 23, 2020,
for the quarterly period ended September 30, 2020, that the company
continues to defend a putative shareholder class action suit in the
U.S. District Court for the Eastern District of Pennsylvania.
On March 22, 2019, a putative shareholder class action lawsuit was
filed against the Company and its Chief Executive Officer in the
U.S. District Court for the Eastern District of Pennsylvania.
The initial complaint, which was filed by a plaintiff purportedly
on behalf of all purchasers of our securities between April 11,
2017 and March 4, 2019, alleges violations of the federal
securities laws in connection with the matters related to the
company's earnings per share (EPS) calculation practices.
On September 17, 2019, the complaint was amended to, among other
things, extend the Class Period to cover the period between April
8, 2014 and March 4, 2019, and to name additional individuals
affiliated with the Company as defendants.
The lead plaintiff seeks unspecified monetary damages and other
relief on behalf of the plaintiff class.
Healthcare Services said, "While the Company is vigorously
defending against all litigation claims asserted, this
litigation—along with the ongoing SEC investigation—could
result in substantial costs to the Company and a diversion of the
Company's management's attention and resources, which could harm
its business. In addition, the uncertainty of the pending lawsuit
or potential filing of additional lawsuits could lead to more
volatility and a reduction in the Company's stock price. At this
time the Company is unable to reasonably estimate possible losses
or form a judgment that an unfavorable outcome is either probable
or remote."
No further updates were provided in the Company's SEC report.
Healthcare Services Group, Inc., incorporated on November 22, 1976,
provides management, administrative and operating services to the
housekeeping, laundry, linen, facility maintenance and dietary
service departments of the healthcare industry, including nursing
homes, retirement complexes, rehabilitation centers and hospitals
located throughout the United States. The Company operates through
two segments: housekeeping, laundry, linen and other services
(Housekeeping), and dietary department services (Dietary). The
company is based in Bensalem, Pennsylvania.
HEARING HELP: Laurie Loses Bid to Dismiss Hoffman TCPA Suit
-----------------------------------------------------------
In the case, MARK HOFFMAN, et al., Plaintiffs, v. HEARING HELP
EXPRESS INC., et al., Defendants, Case No. C19-5960RBL (W.D.
Wash.), Judge Ronald B. Leighton of the U.S. District Court for the
Western District of Washington, Tacoma, (i) granted in part and
denied in part the Plaintiff Hoffman's Motion to Compel; (ii) Pro
se Defendant Lewis Lurie's Motion to Dismiss for Lack of Personal
Jurisdiction; (iii) denied as moot Hoffman's responsive Motion for
Leave to Conduct Jurisdictional Discovery; and (iv) granted
Hoffman's Motion to File Confidential Documents Under Seal or In
Open Court.
The case is a putative class action under the Telephone Consumer
Protection Act ("TCPA"). Hoffman claims Hearing Help made three
unwanted and unauthorized sales calls to his cellular phone,
including one with a "pause," indicating the use of an automatic
telephone dialing system ("ATDS"), despite the fact his number is
on the national Do Not Call registry and he did not consent to such
a call.
He seeks to represent two classes of Plaintiffs: one class who
received calls directly from Hearing Help (which he calls the
"Direct Liability Class") and a second class who received calls
from Hearing Help's agent, Triangular Media Corp. ("Vicarious
Liability Class"). Hoffman has since added Triangular and its
owner/operator, Lurie, as the Defendants.
Hoffman asks the Court to compel Hearing Help to produce documents
(call record details) related to the Direct Liability Class. He
seeks records of every call made by Hearing Help since 2015.
Hoffman claims that he needs that information to identify calls
made using the "Genesys" system like the one used to make the call
to him.
Defendant Lurie seeks dismissal of Hoffman's TCPA claims against
him, arguing that he is a Florida resident with no Washington
contacts. He claims that even if the Court has personal
jurisdiction over Triangular, it does not have jurisdiction over
him. Indeed, he denies any ownership interest in Triangular.
Hoffman asks for leave to conduct jurisdictional discovery into
Lurie's Washington contacts, if the Court determines that he has
thus far failed to establish the Court's jurisdiction over Lurie.
Finally, Hoffman has filed documents in response to Lurie's Motion
to Dismiss that Hearing Help previously designated as
"confidential." He asks the Court to determine whether Hearing
Help has met its burden of demonstrating that these documents
should be filed under seal. Hearing Help has not responded.
In his Motion to Compel, Hoffman seeks five revised categories of
information, instead of his original 10, about all Hearing Help
outgoing calls since 2015: (1) the date and time each call was
placed, (2) the number of calls placed, (3) the telephone numbers
called, (4) the telephone numbers for the outgoing telephone lines
used to place calls, and (5) the identity of the companies or
carriers that were used to place automated calls. He claims that
such information will inform the numerosity, commonality and
typicality aspects of his Rule 23 class certification efforts.
Judge Leighton agrees that as revised, Hoffman's request seeks
discoverable information discoverable and that it is not unduly
burdensome to produce. He granted in part as to these five
categories of calls placed by Hearing Help using leads provided by
Triangular and other vendors, or on its own, to prospective
customers. Hearing Help need not produce information on calls
unrelated to telemarketing.
In his Motion to Dismiss, Lurie argues that the Court has no
personal jurisdiction over him, based on his claim that he has no
ownership of Triangular and his claim that whatever control he
exerted over its activities occurred in Florida. He also argues he
is not personally liable for any violation by Triangular.
Judge Leighton denied Lurie's Motion to Dismiss. Hearing Help has
met its jurisdictional burden of demonstrating that Lurie
purposefully availed himself of the benefits of doing business in
Washington by expressly aiming his conduct. Hoffman also argues
persuasively that the fiduciary shield doctrine does not apply
where the individual defendant was the "primary participant" in the
alleged wrongdoing. Hoffman's Motion for Leave to Conduct
Jurisdictional Discovery is denied as moot.
Finally, Judge Leighton is aware that the Local Rules' mechanism
for filing one's adversary's confidential information under seal is
cumbersome. Hearing Help designated documents it produced as
"confidential," and now Hoffman wants to use those documents in his
motions practice. He properly met and conferred, and Hearing Help
would not agree to his filing some of the information in open
court. He filed the documents under seal, but asks the Court to
determine whether they were in fact confidential. He does not
argue that they are not confidential, and Hearing Help has not
responded to his motion, explaining why they should be
confidential.
The Court held that the "Motion to Seal" is procedurally proper,
but it also appears that neither side cares very much about the
outcome, making it unnecessary. The Motion is granted and the
documents, which are generally invoices from Triangular to Hearing
Help, and email communications between them, may be filed in open
Court, rules Judge Leighton.
Since Judge Leighton is retiring from the federal bench at the end
of August 2020, following resolution of the recently filed Motion
to Amend, the case is transferred to a new Judge, and the Court
will set a schedule consistent with its own calendar. The Class
Certification deadline (September 30) was stricken.
A full-text copy of the Court's Aug. 12, 2020 Order is available at
https://tinyurl.com/y5ko5nu5 from Leagle.com.
HETERO USA: Faces KPH Suit Over Bystolic Market Conspiracy
----------------------------------------------------------
KPH HEALTHCARE SERVICES, INC., a/k/a KINNEY DRUGS, INC.,
individually and on behalf of all others similarly situated, v.
HETERO USA INC., HETERO LABS LTD., HETERO DRUGS LTD., TORRENT
PHARMACEUTICALS LTD., TORRENT PHARMA INC., ASCEND LABORATORIES,
LLC, ALKEM LABORATORIES LTD., INDCHEMIE HEALTH SPECIALTIES PRIVATE
LTD., GLENMARK GENERICS INC., GLENMARK GENERICS LTD., GLENMARK
PHARMACEUTICALS S.A., AMERIGEN PHARMACEUTICALS, INC., AMERIGEN
PHARMACEUTICALS, LTD., WATSON LABORATORIES, INC. (NV), WATSON
LABORATORIES, INC. (DE), WATSON LABORATORIES, INC. (NY), WATSON
LABORATORIES, INC. (CT), WATSON PHARMA, INC., WATSON
PHARMACEUTICALS INC., ACTAVIS, INC., TEVA PHARMACEUTICAL INDUSTRIES
LTD., and TEVA PHARMACEUTICALS USA, INC., Case No. 1:20-cv-08756
(S.D.N.Y., Oct. 20, 2020), is a class action complaint brought on
behalf of the Plaintiff and a putative Class of direct purchasers
of Bystolic (nebivolol hydrochloride or nebivolol HCl) during the
period from July 9, 2016 until the anticompetitive effects of the
Defendants' conduct cease.
The Plaintiff alleges that the Defendants engaged in
anticompetitive conduct in the Bystolic market in violation of
Sections 1 and 2 of the Sherman Act, 15 U.S.C. sections 1, 2. As a
result of the Defendants' anticompetitive conduct, the Plaintiff
and Class Members sustained damages by paying more for Bystolic
than they otherwise would have paid in the absence of the
Defendants' unlawful conduct.
The Plaintiff seeks redress for overcharge damages sustained as a
result of the Defendants' antitrust violations.
KPH operates retail and online pharmacies in the Northeast under
the name Kinney Drugs, Inc. KPH is the assignee of McKesson
Corporation, which directly purchased branded Bystolic during the
Class Period and resold it to KPH.
The Defendants are pharmaceuticals companies engaged in the
manufacture and distribution of Bystolic drug.[BN]
The Plaintiff is represented by:
Dianne M. Nast, Esq.
NASTLAW LLC
1101 Market Street, Suite 2801
Philadelphia, PA 19107
Telephone: (215) 923-9300
Facsimile: (215) 923-9302
E-mail: dnast@nastlaw.com
- and -
Michael L. Roberts, Esq.
ROBERTS LAW FIRM, P.A.
20 Rahling Circle
Little Rock, AR 72223
Telephone: (501) 821-5575
Facsimile: (501) 821-4474
E-mail: mikeroberts@robertslawfirm.us
- and -
Joseph M. Vanek, Esq.
SPERLING & SLATER, P.C.
55 W. Monroe St, Suite 3200
Chicago, IL 60603
Telephone: (312) 641-3200
E-mail: jvanek@sperling-law.com
HILLSHIRE BRANDS: Wargo Files False and Mislabeling Class Action
----------------------------------------------------------------
Christopher Wargo, individually and on behalf of all others
similarly situated v. The Hillshire Brands Company, Case No.
7:20-cv-08672-NSR (S.D.N.Y., Oct. 17, 2020), seeks damages and an
injunction to stop the Defendant's false and misleading marketing
practices with regards to its turkey sausage, egg white and cheese
breakfast sandwiches within a purported "whole grain" English
muffin under their Jimmy Dean brand.
The relevant front label representations include "English Muffin,"
"Made With Whole Grain*," "18g Protein Per Serving - Excellent
Source of Protein," a picture of the Product and "Turkey Sausage,
Egg White & Cheese Sandwich." Though the Product's front label
prominently states "MADE WITH WHOLE GRAIN," it is misleading
because the primary ingredient in the sandwich portion of the
Product is "ENRICHED WHEAT FLOUR," shown in the very fine print of
the ingredient list on the side panel, asserts the Plaintiff.
The complaint further relates that the marketing of the Product is
misleading because the bread portion contains mostly non-whole
grains and contains only a small amount of whole grains. The
Defendant's branding and packaging of the Product is designed
to--and does--deceive, mislead, and defraud plaintiff and
consumers. The Defendant sold more of the Product and at higher
prices than it would have in the absence of this misconduct,
resulting in additional profits at the expense of consumers.
Had the Plaintiff and class members known the truth, they would not
have bought the Product or would have paid less for them, says the
complaint.
The Plaintiff purchased the Product within her district and/or
State for personal consumption.
The Hillshire Brands Company manufactures and markets food products
for retail and foodservice markets.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
505 Northern Blvd., Suite 311
Great Neck, NY 11021
Phone: (516) 303-0552
Facsimile: (516) 234-7800
Email: spencer@spencersheehan.com
HOMEADVISOR INC: Court Orders Arbitration in Margulis TCPA Suit
---------------------------------------------------------------
In the case, MARILYN MARGULIS and MAX MARGULIS, individually and on
behalf of all others similarly situated, Plaintiff(s), v.
HOMEADVISOR, INC., and JOHN DOES 1-10, Defendant(s), Case No.
4:19-cv-00226-SRC (E.D. Mo.), Judge Stephen R. Clark of the U.S.
District Court for the Eastern District of Missouri, Eastern
Division, granted HomeAdvisor's Motion to Compel Arbitration.
On behalf of his wife, Marilyn, attorney Max Margulis submitted a
service request on the website of Defendant HomeAdvisor. In doing
so, he gave HomeAdvisor his phone number and agreed to the Terms
and Conditions of the website. The Terms and Conditions included
an agreement to arbitrate and a class action waiver. The
Plaintiffs allege they later received unsolicited telemarketing
phone calls because they gave HomeAdvisor their phone number, and
bring claims under the Telephone Consumer Protection Ac ("TCPA")
and Missouri's No-Call Law.
HomeAdvisor's business includes providing free referrals through
its website by matching customer requests for various types of
service work with member service professionals who are part of its
referral network. As part of the sunroom project, in September
2017, Max requested quotes for painting service through
HomeAdvisor's website. Through HomeAdvisor's online service
request process, Max provided HomeAdvisor with his phone number,
email address, and a description of the requested service, i.e.,
painting of the sunroom baseboards. In order to complete online
submission of a service request through HomeAdvisor's website, Max
navigated to the submission webpage and clicked a button labeled
"View Matching Pros." It is not possible to complete submission of
a service request on the HomeAdvisor website without navigating to
the submission page and clicking on the "View Matching Pros"
button.
At the time Max submitted the service request to HomeAdvisor, the
webpage displayed, directly underneath the "View Matching Pros"
button, the following text: "By submitting this request, you are
agreeing to our Terms & Conditions." Clicking on any of the "Terms
& Conditions" hyperlinks would direct the user to a webpage
containing HomeAdvisor's complete Terms and Conditions. At the
time Max submitted the service request, HomeAdvisor's Terms and
Conditions included the arbitration provision.
In response to Max's service request, HomeAdvisor submitted the
referral to three contractors. The Plaintiffs then received phone
calls from the contractors who informed them that they received the
request for a service quote from HomeAdvisor. They chose not to
use any of the contractors referred by HomeAdvisor because their
service quotes were higher than who Plaintiffs ended up using.
The Plaintiffs allege that they began to receive unsolicited
telemarketing calls in 2018 because they shared their phone number
with HomeAdvisor. Accordingly, they initiated the present lawsuit
against HomeAdvisor, asserting violations of the TCPA and
Missouri's No-Call Law.
HomeAdvisor filed its first Motion to Compel Arbitration before the
Parties conducted any discovery. It moved to compel arbitration
because the Plaintiffs used HomeAdvisor's website and thereby
agreed to HomeAdvisor's Terms and Conditions, which include an
agreement to arbitrate. The Plaintiffs dispute that they ever
consented to the Terms and Conditions or otherwise agreed to
arbitration. Thus, the threshold question the Court must address
is whether the Parties entered into a valid arbitration agreement.
The Court denied that Motion because Max's affidavit stating that
he "did not recall" setting up an account with HomeAdvisor
precluded a conclusive showing that the service request submitted
in Max's name was actually submitted by him. It then permitted a
period of discovery pertaining solely to the issues of contract
formation and whether the Parties agreed to arbitration. That
discovery conclusively shows that Max set up a HomeAdvisor account.
Judge Clark takes judicial notice of the fact that the Plaintiffs
are frequent litigants under the TCPA. Mr. Margulis has testified
that for the last seven years his practice has been exclusively
handling TCPA actions. He or his wife have been plaintiffs in
approximately 208 individual suits filed under the TCPA. Between
1996 through June 29, 2004, Mr. Margulis has filed a total of 1,215
lawsuits under the TCPA.
Max admits that he used the HomeAdvisor website, that he submitted
a service request by clicking the 'View Matching Pros.' Despite
these admissions, Margulis argues that he is not bound by the Terms
and Conditions because he never actually clicked the hyperlink to
view them and because the hyperlink was not underlined.
Judge Clark finds that Max agreed to the Terms and Conditions when
he submitted the service request. The Plaintiffs received actual
benefit from HomeAdvisor's services, notwithstanding the fact they
found cheaper contractors elsewhere. As a contractor-referrer,
them Plaintiffs more information on which to base their choice of
contractor than they would have had otherwise. And, Marilyn was
the direct beneficiary of that information because Max requested
HomeAdvisor's services on Marilyn's behalf. Accordingly, Marilyn
is bound by the Terms and Conditions as a third-party beneficiary.
To hold otherwise would allow anyone to avoid HomeAdvisor's Terms
and Conditions simply by asking a third-party to use the website on
their behalf.
Having determined that both Max and Marilyn are bound by the Terms
and Conditions, Judge Clark next considers whether the Parties
thereby agreed to arbitration. The Terms and Conditions include an
arbitration clause providing that arbitration will be the
"exclusive means of resolving any dispute" between HomeAdvisor and
the Plaintiffs. The Plaintiffs do not dispute the validity of the
arbitration provision except to repeat their already-rejected
arguments that they are not bound by the Terms and Conditions.
Accordingly, Judge Clark finds that the arbitration provision in
the Terms and Conditions constitutes a valid agreement to arbitrate
between the Parties.
The Plaintiffs next argue that the arbitration agreement does not
apply to the present dispute because their TCPA claims are beyond
the scope of the arbitration provision. Judge Clark does not reach
the question because the arbitration agreement delegates questions
of arbitrability to the mediator. The Plaintiffs are bound by the
Terms and Conditions which incorporate the Arbitration Procedures
by express reference. The Arbitration Procedures' incorporation of
the AAA rules requires the Court to refer all jurisdictional and
arbitrability disputes to the arbitrator, including the formation,
existence, validity, or scope of the Agreement. It includes the
question of whether the agreement governs the Plaintiffs' TCPA
claims. Therefore, Judge Clark must compel arbitration.
Because he granted HomeAdvisor's Motion to Compel Arbitration,
Judge Clark denied without prejudice HomeAdvisor's alternative
Motion to Enforce Class Action Waiver. If the arbitrator should
decide that the dispute is not arbitrable and the stay of the
matter is lifted, then HomeAdvisor may at that time file a renewed
Motion to Enforce Class Action waiver.
Finally, Judge Clark considers the Plaintiffs' Motion to Strike
HomeAdvisor's Reply Statement of Uncontroverted Material Facts.
The Court instructed HomeAdvisor to include with its renewed Motion
to Compel Arbitration a Statement of Uncontroverted Material Facts,
as described in Local Rule 4.01(e). HomeAdvisor did so. The
Plaintiffs filed a Response to HomeAdvisor's Statement of Facts.
HomeAdvisor then filed its Reply to the Plaintiffs' Response.
The Plaintiffs move to strike HomeAdvisor's Reply, arguing that it
was improper without leave of Court. HomeAdvisor responds that
the Reply was appropriate given the Plaintiffs' largely
argumentative responses to HomeAdvisor's Statement of Facts, and
argues that a motion to strike may only be directed to pleadings.
Alternatively, HomeAdvisor requests leave of Court to file the
Reply. The Court granted HomeAdvisor's alternative request for
leave to file the Reply. Accordingly, Judge Clark denied the
Plaintiffs' motion to strike, as moot.
The matter is stayed pending arbitration. The Parties are directed
to jointly file a status report within 14 days of final entry of an
arbitration award or other termination of the arbitration
proceedings.
A full-text copy of the Court's Aug. 12, 2020 Memorandum & Order is
available at https://tinyurl.com/y6b4432z from Leagle.com.
HYATT HOTELS: Germak Sues Over Unlawful Restaurant Service Charge
-----------------------------------------------------------------
LAURA MARIE GERMAK, on behalf of herself and all others similarly
situated, v. HYATT HOTELS CORPORATION, HYATT CORPORATION, HT-MIAMI
BEACH, LLC, and THE CONFIDANTE MIAMI BEACH, Case No.
1:20-cv-24341-XXXX (S.D. Fla., Oct. 21, 2020), is a consumer class
action brought on behalf of people who, from four years prior to
filing of this complaint through and including the date of
judgment, purchased food and/or drinks at a restaurant, bar,
mini-bar, lounge and/or other public food service establishment
owned, operated and/or controlled by Defendants in the State of
Florida and were charged a gratuity or service charge in violation
of Florida Statute 509.214, and/or in violation of the Miami-Dade
County Code of Ordinances, Sec. 8A-110.1(1) for the properties in
Miami-Dade County, and the Florida Unfair Deceptive Trade Practices
Act.
The Plaintiff contends that the Defendants violated these Florida
statutes in a number of ways, including unlawfully including an
automatic, mandatory gratuity or service charge of an amount equal
to or approximately 20% of the charges for food and beverages
without providing the statutorily required notice; and/or
presenting the notice of an automatic gratuity or service charge in
small, hard to read type.
On October 7, 2020, the Plaintiff went to a restaurant located in
the Confidante Miami Beach hotel. The restaurant displayed the
restaurant's menu along with a QR code on a single television
screen by the bar that brought up an electronic version of the
restaurant's menu on her smartphone by using the device's camera.
The Plaintiff ordered food and drink items from the menu presented
to her on the television screen. When she was done eating, the
Plaintiff was presented with a restaurant bill. The check appeared
to indicate that the restaurant was named "Soiree." An automatic
service charge of 20% was included with the charges for food and
beverages on the check, under the subtotal for the meal items,
listed as "20% SVC CHG."
The Plaintiff did not see any notice on the restaurant's menu she
reviewed that an automatic gratuity or service charge of any amount
would be added to Plaintiff's check, says the complaint.
The Defendants own, operate, manage, franchise and/or control 60
hotel properties in the State of Florida including Chesterfield
Hotel Palm Beach, Grand Hyatt Tampa Bay, Hyatt Centric Brickell
Miami, Hyatt Centric Key West Resort & Spa, and Hyatt Centric Las
Olas Fort Lauderdale.[BN]
The Plaintiff is represented by:
David M. Marco, Esq.
SMITHMARCO, P.C.
55 W. Monroe Street, Suite 1200
Chicago, IL 60603
Telephone: (312) 546-6539
Facsimile: (888) 418-1277
E-Mail: dmarco@smithmarco.com
- and -
James A. Francis, Esq.
FRANCIS & MAILMAN, P.C.
1600 Market Street, Suite 2510
Philadelphia, PA 19103
Telephone: (215) 735-8600
Facsimile: (215) 940-8000
E-mail: jfrancis@consumerlawfirm.com
- and -
Lewis J. Saul, Esq.
LEWIS SAUL & ASSOCIATES, P.C.
29 Howard Street, 3rd Floor
New York, NY 10013
Telephone: (212) 376-8450
Facsimile: (212) 376-8447
E-mail: lsaul@lewissaul.com
HYUNDAI: Recalls Vehicles in United States to Brake-Fluid Leak
--------------------------------------------------------------
Brad Anderson, writing for CarScoops, reports that Hyundai and Kia
are recalling roughly 591,000 vehicles in the United States due to
a brake-fluid leak.
A recall notice from the National Highway Traffic Safety
Administration (NHTSA) reveals that due to a suspected supplier
quality deviation issue, brake fluid may leak internally inside the
Hydraulic Electronic Control ECU (HECU) which, over time, could
trigger an electrical short. An electrical short in the HECU
increases the risk of an engine compartment fire while driving --
and Hyundai has added that an engine fire could even happen if the
car is not turned on.
Vehicles involved in the recall are 2013-2015 Kia Optima models,
totaling 283,803 vehicles. The recall also involves 156,567 Kia
Sorentos from 2014 and 2015 and 151,000 Hyundai Santa Fe models
from the 2013-2015 model years.
Kia says all owners of the subject vehicles will be notified by
first class mail with instructions to bring their vehicles to a Kia
or Hyundai dealership. Once the vehicles are in workshops,
dealerships will inspect the HECU for leaking brake fluid and, if
they find one, the HECU will be replaced with a new one. Kia will
reimburse owners for repair expenses.
This isn't the first time that Hyundai or Kia have made a recall of
this nature. Earlier this year, Hyundai recalled 2006-2011 Elantra
and 2007-2011 Elantra Touring vehicles due to another electrical
short-circuit issue involving water getting into the ABS computer
unit, something that also increased the possibility of an engine
fire. [GN]
IBM CORP: Continues to Defend ERISA-Related Class Suit in New York
------------------------------------------------------------------
International Business Machines Corporation said in its Form 10-Q
Report filed with the Securities and Exchange Commission on October
27, 2020, for the quarterly period ended September 30, 2020, that
the company continues to defend a putative class action suit
related to the company's October 2014 announcement that it was
divesting its global commercial semiconductor technology business,
alleging violations of the Employee Retirement Income Security Act
(ERISA).
In May 2015, a putative class action was commenced in the United
States District Court for the Southern District of New York related
to the company's October 2014 announcement that it was divesting
its global commercial semiconductor technology business, alleging
violations of the Employee Retirement Income Security Act (ERISA).
Management's Retirement Plans Committee and three former IBM
executives are named as defendants. On September 29, 2017, the
Court granted the defendants' motion to dismiss the first amended
complaint.
On December 10, 2018, the Second Circuit Court of Appeals reversed
the District Court order. On January 14, 2020, the Supreme Court of
the United States vacated the decision and remanded the case to the
Second Circuit.
On June 22, 2020, the Second Circuit reinstated its prior decision
and remanded the case to the District Court.
International Business Machines Corporation operates as an
integrated technology and services company worldwide. The company
was formerly known as Computing-Tabulating-Recording Co. and
changed its name to International Business Machines Corporation in
1924. The company was incorporated in 1911 and is headquartered in
Armonk, New York.
IMPINJ INC: Nov. 19 Hearing Set for $20MM Deal in Securities Suit
-----------------------------------------------------------------
Impinj, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 28, 2020, for the quarterly
period ended September 30, 2020, that a court has set a final
settlement approval hearing for November 19, 2020.
On August 7, 2018, a class-action complaint for violation of the
federal securities laws was filed in the U.S. District Court for
the Central District of California against the company, its chief
executive officer and former chief operating officer.
Captioned Schultz v. Impinj, Inc., et al, the complaint,
purportedly brought on behalf of all purchasers of the company's
common stock from May 7, 2018 through and including August 2, 2018,
asserted claims that the company's quarterly statement filed on
Form 10-Q for first-quarter 2018 and a concurrent press release
made false or misleading statements about the company's business
prospects and financial condition.
The complaint sought monetary damages, costs and expenses. On
October 3, 2018, the plaintiff voluntarily dismissed this
complaint.
On August 27, 2018, a second class-action complaint for violation
of the federal securities laws was filed in the U.S. District Court
for the Western District of Washington against the company, its
chief executive officer, former chief operating officer and former
chief financial officer.
Captioned Montemarano v. Impinj, Inc., et al., the complaint,
purportedly brought on behalf of all purchasers of our common stock
from May 4, 2017 through and including August 2, 2018, asserted
claims that the company made false or misleading statements in its
financial statements, press releases and conference calls during
the purported class period in violation of Section 10(b) of the
Securities Exchange Act of 1934, as amended, or the Securities
Exchange Act. The complaint sought monetary damages, costs and
expenses.
On October 2, 2018, a third class-action complaint for violation of
the federal securities laws was filed in the U.S. District Court
for the Western District of Washington against the company, its
chief executive officer, former chief operating officer and former
chief financial officer.
Captioned Employees' Retirement System of the City of Baton Rouge
and Parish of East Baton Rouge v. Impinj, Inc., et al., the
complaint, purportedly brought on behalf of all purchasers of the
company's common stock from November 3, 2016 through and including
February 15, 2018, asserted claims that the company made false or
misleading statements about customer demand for our products and
inventory in SEC filings, press releases and conference calls in
violation of Section 10(b) of the Securities Exchange Act. The
complaint sought monetary damages, costs and expenses.
On January 14, 2019, the U.S. District Court for the Western
District of Washington consolidated the Montemarano and Baton Rouge
actions and appointed the Employees' Retirement System of the City
of Baton Rouge and Parish of East Baton Rouge as lead plaintiff. On
February 13, 2019, lead plaintiff filed a consolidated amended
complaint.
The consolidated amended complaint alleged that from July 21, 2016
through February 15, 2018, the company made false or misleading
statements about customer demand and the capability of its products
and platform in violation of Section 10(b) of the Securities
Exchange Act.
On March 19, 2019, the company filed a motion to dismiss the
consolidated amended complaint, and on October 4, 2019, the court
entered an order granting in part and denying in part the motion.
The court dismissed the Section 10(b) claim against the company's
former chief operating officer, dismissed
product-capability-related allegations against the company's former
chief financial officer, and dismissed allegations that defendants
made false or misleading statements concerning increasing demand
prior to first-quarter 2017. The court denied the motion as to all
other claims and defendants.
On July 9, 2020, following a private settlement mediation with the
lead plaintiff in the federal securities class actions and
plaintiff in the New York State securities class action, the
parties in both actions executed a stipulation of settlement that
resolved the claims asserted in both actions. The settlement
provided for a payment to the plaintiff class of $20.0 million.
Impinj said, "Our insurers contributed $14.6 million to the
settlement, and we contributed the remaining settlement amount of
$5.4 million. Accordingly, we recorded a provision of $5.4 million
related to our estimated settlement amount to general and
administrative expenses for the three months ended June 30, 2020,
which was paid during the three months ended September 30, 2020. On
July 29, 2020, the court entered an order preliminarily approving
the settlement, and set a final settlement approval hearing for
November 19, 2020."
Impinj, Inc. operates a platform that enables wireless connectivity
for everyday items by delivering each items unique identity,
location, and authenticity to business and consumer applications.
Impinj, Inc. was founded in 2000 and is headquartered in Seattle,
Washington.
IMPINJ INC: Stipulation of Settlement Reached in Plymouth Suit
--------------------------------------------------------------
Impinj, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 28, 2020, for the quarterly
period ended September 30, 2020, that a stipulation of settlement
has been reached in the case, Plymouth County Retirement System v.
Impinj, Inc., et al.
On January 31, 2019, a class-action complaint for violation of the
federal securities laws was filed in the Supreme Court of the State
of New York for the County of New York against the company, its
chief executive officer, former chief operating officer, former
chief financial officer, members of the company's board of
directors and the underwriters of the company's July 2016 initial
public stock offering, or IPO, and December 2016 secondary public
offering, or SPO.
Captioned Plymouth County Retirement System v. Impinj, Inc., et
al., the complaint, purportedly brought on behalf of purchasers of
the company's stock pursuant to or traceable to its IPO and second
public offering (SPO), alleged that the company made false or
misleading statements in the registration statements and
prospectuses in those offerings concerning demand for the company's
products and inventory in violation of Section 11 of the Securities
Act of 1933.
On April 9, 2019, the New York Supreme Court entered an order
staying the action and requiring the parties to update the court
every 90 days as to the status of the pending federal securities
class actions discussed above.
In connection with the Federal Securities Class Action, on July 9,
2020, the parties in both this action and the federal securities
class actions executed a stipulation of settlement that resolved
the claims in both actions.
On July 29, 2020, the U.S. District Court for the Western District
of Washington entered an order preliminarily approving the
settlement, and set a final settlement approval hearing for
November 19, 2020. Once the settlement is finally approved by the
federal court, plaintiffs will dismiss this action with prejudice.
Impinj, Inc. operates a platform that enables wireless connectivity
for everyday items by delivering each items unique identity,
location, and authenticity to business and consumer applications.
Impinj, Inc. was founded in 2000 and is headquartered in Seattle,
Washington.
INNOVATIVE HEIGHTS: Loses Bid to Dismiss Stauffer Suit Under BIPA
-----------------------------------------------------------------
In the case, MADISYN STAUFFER, on behalf of herself an all others
similarly situated, Plaintiff, v. INNOVATIVE HEIGHTS FAIRVIEW
HEIGHTS, LLC, AND PATHFINDER SOFTWARE, LLC D/B/A PATHFINDER
SOFTWARE, LLC, Defendants, Case No. 3:20-CV-00046-MAB (S.D. Ill.),
Magistrate Judge Mark A. Beaty of the U.S. District Court for the
Southern District of Illinois (i) granted in part and denied in
part Plaintiff Stauffer's Motion to Remand, and (ii) denied
Defendant Pathfinder's Motion to Dismiss.
In her Amended Complaint, the Plaintiff alleges, on behalf of
herself and a class of similarly situated individuals, that both
Defendants Innovative Heights and Pathfinder collected her
biometric information, specifically her fingerprints, in violation
of The Illinois Biometric Information Privacy Act ("BIPA"). On
April 29, 2019, the Plaintiff filed her Complaint in the Twentieth
Judicial Circuit, St. Clair County, Illinois. She brings the
action individually and on behalf of a class of similarly situated
individuals who were employed by Defendant Innovative Heights and
worked at its "Sky Zone" facility in Fairview Heights, Illinois for
alleged violations of BIPA.
Originally, the Plaintiff brought the action solely against her
employer, Defendant Innovative Heights. Sky Zone is a recreational
facility with indoor trampolines that offers a variety of different
activities, including, but not limited to, Ultimate Dodgeball,
SkyHoops, SkyJoust, and Laser Tag. As part of their employment,
employees are required to give their fingerprints to Defendant
Innovative Heights at the beginning of their employment and then
scan their fingerprints for timekeeping1 and other employment
purposes. She alleges that she was never informed by Defendant
Innovative Heights, in writing, of the purpose and the period for
which her fingerprints were being collected, stored, or used.
While still in state court, the Plaintiff sought leave to amend her
complaint on Nov. 19, 2019 after learning of Defendant Pathfinder's
relationship with her employer through the first stages of
discovery. She alleges that Defendant Pathfinder controls and
operates the system and database in which Defendant Innovative
Heights' employees' fingerprints were stored. Like Defendant
Innovative Heights, the Plaintiff alleges that Defendant Pathfinder
never informed her, in writing, of the specific purpose of and the
period for which her fingerprints were being collected, stored, or
used.
The Plaintiff received leave on Nov. 25, 2019 to amend her
complaint. She Plaintiff filed her amended complaint on Nov. 27,
2019 in which she named Defendant Pathfinder, for the first time,
as a co-defendant along with Defendant Innovative Heights. In
adding Defendant Pathfinder, the Plaintiff also alleges two
separate classes of individuals—those that were employed by
Defendant Innovative Heights and worked at its SkyZone facility in
Fairview Heights, Illinois and those individuals who had their
fingerprints collected, captured, purchased, received through
trade, or otherwise obtained by Defendant Pathfinder.
The Plaintiff alleges that both Defendants Innovative Heights and
Pathfinder have violated Sections 15(a) and 15(b) of BIPA while
scanning and storing her and other class members' fingerprints for
timekeeping and other purposes. She alleges Defendant Innovative
Heights violated Section 15(b) of BIPA because it failed to notify
her and the putative class, in writing, that their fingerprints
were being collected, stored, and used before collecting this
biometric information. Additionally, she notes Defendant
Innovative Heights failed to obtain a written release from herself
and the other putative class members before collecting their
fingerprints.
Defendant Pathfinder also violated Sections 15(a) of BIPA,
according to the Plaintiff, by not making available, to the public,
a written policy establishing a retention schedule and guidelines
for permanently destroying the biometric information once the
initial purpose for collecting had been satisfied. She alleges
Defendant Pathfinder violated Section 15(b) of BIPA by not first
informing the class members, in writing, of the purpose for which
their fingerprints were being collected, stored, and used, and for
how long these fingerprints were being collected, stored, and used.
Finally, she contends Defendant Pathfinder did not obtain a
written release from the Plaintiff or the class members before
collecting, capturing, or receiving their fingerprints.
After filing her amended complaint, Defendant Pathfinder removed
the case on Jan. 10, 2020 to the Southern District of Illinois
pursuant to the Class Action Fairness Act ("CAFA"). Soon after
removal, Defendant Pathfinder filed a motion to dismiss on Feb. 5,
2020. The Plaintiff then filed a motion to remand the matter to
state court on March 12, 2020. Both pending motions, and the
responses and replies, are currently before the Court.
In her motion to remand, the Plaintiff hinges on whether she has
alleged an actual injury to sustain Article III standing. The
Plaintiff argues that Defendant Pathfinder based its motion to
dismiss on the argument that she has failed to appropriately plead
that she suffered an injury; therefore, she cannot sustain Article
III standing and the case must be remanded because a crucial
element of subject matter jurisdiction is absent.
Subsequently, Defendant Pathfinder sought leave from the Court to
supplement its response in opposition to the Plaintiff's motion to
remand to include a recent case from the Seventh Circuit on the
issue of Article III standing in BIPA cases. The Court granted
Defendant Pathfinder's motion and allowed additional briefing on
the issue of Article III standing from both the Plaintiff and
Defendant Pathfinder. Defendant Pathfinder argued that a recent
case, Bryant v. Compass Group USA, Inc., 958 F.3d 617 (7th Cir.
2020), moots all of the Plaintiff's arguments in her Motion for
Remand. In her response, the Plaintiff argues that Bryant is
instructive for determining whether Article III standing exists for
a Plaintiff bringing a BIPA Section 15(b) claim, but not a Section
15(a) claim.
Magistrate Judge Beaty finds that while the Plaintiff has advanced
some additional facts discussing the impact of Defendant Innovative
Heights' Section 15(a) violation, she has still not described a
concrete and particularized harm for Article III standing. She has
not described how the Section 15(a) violations have impacted her
thinking or if those violations were the reason for her leaving,
for example; rather, her description is more hypothetical and
describes what could happen if one left employment while Defendant
Innovative Heights still improperly retained their biometric
information. The fact that she has left employment is not enough
if she has not pled how the alleged Section 15(a) violation
impacted her.
Accordingly, the Plaintiff has Article III standing for her Section
15(b) claims against both Defendants Pathfinder and Innovative
Heights. The Plaintiff does not have Article III standing for her
Section 15(a) claims against either Defendant. The Plaintiff's
Section 15(a) claims against Defendant Pathfinder and Defendant
Innovative Heights are remanded to the Twentieth Judicial Circuit,
St. Clair County, Illinois, rules Magistrate Judge Beaty.
In its motion to dismiss, Defendant Pathfinder makes a series of
five arguments in its motion to dismiss, arguing that the Plaintiff
has failed to plead sufficient facts for the case to survive beyond
this early stage of litigation. The Plaintiff opposes each of
these arguments in her response to the Defendant Pathfinder's
motion to dismiss.
First, Pathfinder argues that BIPA is unconstitutional special
legislation because it imposes strict compliance requirements on
some employers, but then exempts "the entire financial industry"
and state and local government contractors "arbitrarily," so BIPA
"should be struck down" as unconstitutional. The Plaintiff
disagrees, arguing that Defendant Pathfinder has failed to cite to
any precedent in which a court has declared BIPA as
unconstitutional.
Magistrate Judge Beaty holds that that BIPA was enacted in 2008,
approximately 12 years ago, and there have been a number of BIPA
cases both in federal and state court. Defendant Pathfinder did
not cite to a single BIPA case to support its argument and while
that is not dispositive of its arguments alone, it is noteworthy
that not a single other case has found BIPA to be unconstitutional
in those twelve years. For purposes of a 12(b)(6) motion, the
Plaintiff has pled sufficient facts to conclude that BIPA is not
special legislation and is, therefore, not unconstitutional.
Second, Pathfinder argues that it should be classified as a
financial institution in the aforementioned financial exemption
and, therefore, Defendant Pathfinder is exempt from BIPA's
requirements. The Plaintiff argues that Defendant Pathfinder is
not a financial institution as defined by BIPA and is not exempt.
Magistrate Judge Beaty finds that the Plaintiff has sufficiently
pled her claims against Defendant Pathfinder for purposes of a
12(b)(6) motion because at this time, he cannot find that Defendant
Pathfinder is exempt from BIPA because it is a financial
institution subjected to the reporting requirements of GLBA.
Third, Defendant Pathfinder argues that the Plaintiff's complaint
is time-barred since she did not bring the claim in the appropriate
statute of limitations, which it claims is one year. The Plaintiff
argues that Defendant Pathfinder relies on the incorrect statute of
limitations and that almost every other BIPA case has held that
BIPA claims are subject to the five-year catchall statute of
limitations.
As he has previously noted, Magistrate Judge Beaty holds that BIPA
precedent is developing, and while many of the cases the Plaintiff
cites to are state-court decisions and non-binding on the Court's
decision, they are instructive for how state courts interpret the
state law, particularly since the Court must apply the law of
Illinois as it believes the Illinois Supreme Court would apply it.
Accordingly, the Plaintiff has pled sufficient facts for purposes
of a 12(b)(6) motion that her BIPA claims are timely.
Fourth, Defendant Pathfinder argues that the Plaintiff voluntarily
waived her right to sue because she implicitly consented to the
collection of her fingerprints for the purpose of clocking in and
out of work; accordingly, the doctrine of equitable estoppel
applies and Plaintiff cannot bring BIPA claims now. The Plaintiff
argues that Defendant Pathfinder incorrectly conflated waiver and
equitable estoppel, and that she is not barred from bringing her
BIPA claims under either doctrine.
Magistrate Judge Beaty opines that Defendant Pathfinder does not
identify any material facts that the Plaintiff has concealed or
misrepresented. It does not attempt to explain how the elements of
equitable estoppel have been satisfied, so the Magistrate cannot
find that the Plaintiff is estopped from bringing her claims.
Additionally, he cannot say, based on the pleadings and the minimal
arguments provided by Defendant Pathfinder, that the only
conclusion logically drawn from the Plaintiff's actions while
employed at Defendant Innovative Heights is that she knowingly,
voluntarily, and intentionally waived any right to bring a BIPA
claim by continuing to scan her fingerprints at her place of work.
He, therefore, concludes that it would be inappropriate, at this
early stage of the case, to dismiss the Plaintiff's claims due to
either doctrine.
Finally, Defendant Pathfinder argues that the case should be
dismissed because the Plaintiff has not pled sufficient facts to
support her cause of action, specifically that she has not asserted
that Defendant Pathfinder negligently, recklessly or intentionally
violated BIPA, specifically 740 ILCS 14/20(1). The Plaintiff
argues that she is not required to assert facts regarding Defendant
Pathfinder's negligent, reckless, or intentional actions to bring a
BIPA cause of action.
The Plaintiff is correct, rules Magistrate Judge Beaty. To allege
a claim that Defendant Pathfinder violated BIPA, all she must do is
allege thatthe Defendant collected, captured, purchased, received,
or obtained her fingerprints without complying with BIPA's
requirements. As the Plaintiff explained, and as other courts have
outlined, the references to negligent, reckless, and intentional
violations only relate to what the prevailing party may recover for
each violation, which is not before the Court presently.
Accordingly, for purposes of a 12(b)(6) motion, the Plaintiff has
pled sufficient facts to state a cause of action against Defendant
Pathfinder.
For the aforementioned reasons, Magistrate Judge Beaty denied in
part and granted in part the Plaintiff Stauffer's motion to remand.
The Court retains jurisdiction over the Plaintiff's BIPA Section
15(b) claims as they pertain to both Defendants Innovative Heights
and Pathfinder. The Plaintiff's BIPA Section 15(a) claims are
remanded as they pertain to Defendants Pathfinder and Innovative
Heights to the Twentieth Judicial Circuit, St. Clair County,
Illinois as the Court does not have jurisdiction over those claims.
Defendant Pathfinder's motion to dismiss is denied.
A full-text copy of the Court's Aug. 19, 2020 Memorandum & Order is
available at https://tinyurl.com/y395tndu from Leagle.com.
JOHNSON & JOHNSON: Talc-Related Class Suit Ongoing in Illinois
--------------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 23, 2020, for the
quarterly period ended September 27, 2020, that the company
continues to defend a class action suit in in Illinois State Court
involving talc contained in JOHNSON'S(R) Baby Powder and
JOHNSON'S(R) Shower to Shower.
In May 2014, two purported class actions were filed in federal
court, one in the United States District Court for the Central
District of California and one in the United States District Court
for the Southern District of Illinois, against Johnson & Johnson
and Johnson & Johnson Consumer Companies, Inc. (now known as
Johnson & Johnson Consumer Inc.) (JJCI) alleging violations of
state consumer fraud statutes based on nondisclosure of alleged
health risks associated with talc contained in JOHNSON'S(R) Baby
Powder and JOHNSON'S(R) Shower to Shower (a product no longer sold
by JJCI).
Both cases seek injunctive relief and monetary damages; neither
includes a claim for personal injuries.
In October 2016, both cases were transferred to the United States
District Court for the District Court of New Jersey as part of a
newly created federal multi-district litigation.
In July 2017, the district court granted Johnson & Johnson's and
JJCI's motion to dismiss one of the cases.
In September 2018, the United States Court of Appeals for the Third
Circuit affirmed this dismissal. In September 2017, the plaintiff
in the second case voluntarily dismissed the complaint.
In March 2018, the plaintiff in the second case refiled in Illinois
State Court.
Following motion practice to remove the case to United States
District Court, as of September 2020 the case will remain in
Illinois State Court.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
JOHNSON & JOHNSON: XARELTO Sales Class Suit in Louisiana Ongoing
----------------------------------------------------------------
Johnson & Johnson said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 23, 2020, for the
quarterly period ended September 27, 2020, that the company
continues to defend a class action suit in the U.S. District Court
for the Eastern District of Louisiana related to its improper
marketing and promotion of XARELTO(R).
In August 2015, two third-party payors filed a purported class
action in the United States District Court for the Eastern District
of Louisiana against Janssen Research & Development, LLC, Janssen
Ortho LLC, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen
Pharmaceuticals, Inc. and Johnson & Johnson (as well as certain
Bayer entities), alleging that the defendants improperly marketed
and promoted XARELTO(R) as safer and more effective than less
expensive alternative medications while failing to fully disclose
its risks.
The complaint seeks damages.
No further updates were provided in the Company's SEC report.
Johnson & Johnson, together with its subsidiaries, researches and
develops, manufactures, and sells various products in the health
care field worldwide. It operates in three segments: Consumer,
Pharmaceutical, and Medical Devices. The company was incorporated
in 1887 and is based in New Brunswick, New Jersey.
JUUL LABS: Can't Compel Arbitration in Bautista Wage Suit
---------------------------------------------------------
In the case, MARIA DE LA LUZ PEREZ BAUTISTA, et al., Plaintiffs, v.
JUUL LABS, INC., et al., Defendants, Case No. 20-cv-01613-HSG (N.D.
Cal.), Judge Haywood S. Gilliam, Jr. of the U.S. District Court for
the Northern District of California denied the motions to compel
arbitration and stay the proceedings filed by Defendants Long Ying
International, Inc. ("LYI"), David M. Ho, Juul, and the Coalition
for Reasonable Vaping Regulation ("CRVR").
On June 25, 2019, San Francisco's Board of Supervisors banned the
sale and distribution of e-cigarettes and vaping products in San
Francisco. On July 10, 2019, the San Francisco Department of
Elections certified a ballot measure -- Proposition C -- for the
2019 general election that would repeal the ban passed by the Board
of Supervisors.
CRVR is a political committee and advocacy organization established
and incorporated under California law to advocate for the
enforcement of strong and coherent laws, regulations and policies
which will prevent the use of e-cigarettes and other tobacco
products by youth under the age of 21, while allowing adults the
choice to continue purchasing these products in brick and mortar
stores and online. CRVR retained LYI, a San Francisco-based
strategic consultancy company, to provide campaign consulting and
field management services in support of the Yes on C Campaign.
David Ho, the CEO of LYI, is a political consultant and registered
lobbyist. Mr. Ho was also retained by CRVR as an independent
contractor to provide field campaign consulting services.
Plaintiffs Maria de la Luz Perez Bautista, Luz Perez Bautista, and
Salvadora Correa are former campaign workers who were hired by LYI
to provide canvassing, phone banking, and administrative services,
purportedly as independent contractors, to support the "Yes on C
Campaign" in San Francisco in 2019. The Plaintiffs are native
Spanish speakers who applied for a position to join the
Spanish-speaking campaign team.
Each of the Plaintiffs entered into an Independent Contractor
Agreement ("ICA") with LYI under which they worked for the Yes on C
Campaign. Between August and October 2019, they worked as phone
bank callers and door-to-door canvassers, and Plaintiff Luz Perez
Bautista also worked as an administrative assistant. The
Plaintiffs admit that they each signed an agreement entitled
"Independent Contractor Agreement" with LYI. However, they contend
that they were only offered the ICA in English, and were not given
the option of receiving a translated version of the ICA or allowed
to take it home to have it translated. The Plaintiffs and LYI
entered into the ICAs for the stated purpose of providing services
for CRVR. Mr. Ho signed the contracts on behalf of LYI.
The Plaintiffs allege that the Defendants are each joint employers
of them and the Campaign Workers, and the Defendants are jointly
and severally liable for violations of applicable San Francisco,
California, and federal law. Further, they allege that CRVR and
Juul are each other's alter egos and form a single enterprise.
Specifically, the Plaintiffs allege that the Defendants are liable
for (1) Failure to Pay Wages Owed at Separation; (2) Failure to
Furnish Accurate Wage Statements; (3) Failure to Pay Minimum Wages
Under California Law; (4) Failure to Pay San Francisco Minimum
Wage; (5) Failure to Pay Overtime Wages; (6) Failure to Reimburse
Business Expenses; (7) Failure to Provide Meal Periods; (8)
Violations of Unfair Competition Law; and (9) Failure to Pay
Overtime Wages.
The Plaintiffs also seek to represent a class of all individuals
who were hired by LYI to perform phone banking, canvassing and/or
administrative tasks for the Yes on C Campaign and did perform such
work at any time during the period between July 2019 and October
2019.
Pending before the Court are motions to compel arbitration and stay
the proceedings filed by LYI, Mr. Ho, Juul, and CRVR. On June 25,
2020, the Court held a hearing on the motions.
Judge Gilliam explains that under the FAA, the Court must compel
arbitration if the claims asserted fall within the scope of a valid
arbitration agreement. Although the FAA establishes that, as a
matter of federal law, any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration, the
Judge finds that the Plaintiffs' claims are not a dispute over the
terms of the ICA so as to trigger the arbitration provision.
Without question, the Defendants could have drafted the arbitration
provision to cover labor code misclassification causes of action
by, for example, expressly providing for arbitration of disputes or
claims arising out of, or related to, the Plaintiffs' employment,
or of all labor code claims. Instead, the Defendants drafted a
narrow clause that only covers "disputes over the terms of" the
ICA, which, applying Ninth Circuit and California law, the
Plaintiffs' causes of action clearly are not. Therefore, Judge
Gilliam finds that the Plaintiffs did not agree to arbitrate the
causes of action pled in the Complaint.
Because the dispute does not fall within the scope of the
arbitration provision in the ICA, Judge Gilliam denied the motions
to compel arbitration. He also denied Juul's motion to compel
arbitration as a non-signatory in light of his finding that the
arbitration provision in the ICA does not cover the Plaintiffs'
claims.
Judge Gilliam set a telephonic case management conference for last
Aug. 25, 2020 at 2:00 p.m., wherein the parties will discuss next
steps, including a plan for resolving the Motion for Conditional
Certification.
A full-text copy of the Court's Aug. 12, 2020 Order is available at
https://tinyurl.com/yxvrcmlv from Leagle.com.
K3 WORKS: DeJohn Seeks Minimum & OT Wages for Delivery Drivers
--------------------------------------------------------------
JENNIFER DEJOHN, individually and on behalf of similarly situated
persons v. K3 WORKS, INC. d/b/a DOMINO'S PIZZA and BILL KENT, Case
No. 1:20-cv-01289-TJM-DJS (N.D.N.Y., Oct. 19, 2020), is a
collective action lawsuit under the Fair Labor Standards Act and
the New York Minimum Wage Act to recover unpaid minimum wages and
overtime hours owed to Plaintiff and similarly situated delivery
drivers employed by the Defendants at its Domino's stores.
The Defendants employ delivery drivers who use their own
automobiles to deliver pizza and other food items to their
customers. However, instead of reimbursing delivery drivers for the
reasonably approximate costs of the business use of their vehicles,
the Defendants use a flawed method to determine reimbursement rates
that provides such an unreasonably low rate beneath any reasonable
approximation of the expenses they incur that the drivers'
unreimbursed expenses cause their wages to fall below the federal
minimum wage during some or all workweeks, says the complaint.
The Plaintiff and the putative class have sustained losses and lost
compensation as a proximate result of the Defendants' violations.
Accordingly, the Plaintiff, on behalf of herself and the putative
class, seeks damages in the amount of their unpaid earned
compensation, liquidated damages, plus interest at the legal rate
set forth in the New York Labor Law.
The Defendants own and operate numerous Domino's franchise stores.
Bill Kent is an owner, officer and director of corporate Defendant
K3 Works, Inc.[BN]
The Plaintiff is represented by:
Jay Forester, Esq.
FORESTER HAYNIE PLLC
400 N. St. Paul Street, Suite 700
Dallas, TX 75201
Telephone: (214) 210-2100
Facsimile: (214) 346-5909
E-mail: jay@foresterhaynie.com
KANEX INC: Rakhmanin Seeks to Recover Unpaid Wages
--------------------------------------------------
Sergei Rakhmanin, Natalia Stepanova and Svetlana Larina,
Individually and on behalf of all other persons similarly situated
v. KANEX INC. d/b/a GRAND MOUNTAIN HOTEL, ALEX SMUSHKOVICH and
TATYANA RUGANOVICH, Jointly and Severally, Case No.
1:20-cv-01287-FJS-DJS (N.D.N.Y., Oct. 16, 2020), alleges that the
Defendants willfully violated the Fair Labor Standards Act and the
New York Labor Law by failing to pay minimum wage, overtime premium
pay, and spread-of-hours pay; unlawfully retaining gratuities;
failing to provide the Notice and Acknowledgement of Payrate and
Payday under N.Y. Lab. Law; and failing to provide an accurate wage
statement under N.Y. Lab. Law with every wage payment.
Throughout their employment with Defendants, the Plaintiffs
regularly worked in excess of 40 hours per week. The Plaintiffs
were not required to keep track of their time, nor to their
knowledge, did the Defendants utilize any time tracking device,
such as punch cards. The Defendants paid the Plaintiffs their wages
in cash. The Plaintiffs' pay did not vary regardless of how many
hours they worked. The Defendants were not permitted to pay the
Plaintiffs a fixed weekly salary.
The complaint alleges that Defendants failed to pay the Plaintiffs
the federal and state minimum wage because their average hourly
rates fell below the applicable federal and state wage requirements
during their employment. By paying the Plaintiffs a fixed weekly
salary, the Defendants failed to pay them any overtime
compensation. Moreover, for the days they were scheduled to and
worked more than 10 hours in a day, the Defendants did not pay the
Plaintiffs spread-of-hours pay--an extra hour at the statutory
minimum wage, says the complaint.
The Plaintiffs worked mainly as servers for the Defendants.
The GM Hotel is a seasonal hotel located in Ulster County, New
York.[BN]
The Plaintiff is represented by:
Douglas B. Lipsky, Esq.
Milana Dostanitch, Esq.
LIPSKY LOWE LLP
630 Third Avenue, Fifth Floor
New York, NY 10017-6705
Phone: 212.392.4772
Email: doug@lipskylowe.com
milana@lipskylowe.com
LG ELECTRONICS: Court Narrows Claims in Hudock Suit
---------------------------------------------------
In the case, BREANN HUDOCK, EUGENE MANNACIO, and BRIAN FLEISHMAN,
individually and on behalf of all others similarly situated,
Plaintiffs, v. LG ELECTRONICS U.S.A., INC., BEST BUY CO., INC.,
BEST BUY STORES, L.P., and BESTBUY.COM, LLC, Defendants, Civil No.
16-1220 (JRT/KMM) (D. Minn.), Judge John R. Tunheim of the U.S.
District Court for the District of Minnesota (i) granted in part
and denied in part the Defendants' Motion for Summary Judgment;
(ii) denied the Defendants' Motion to Exclude Expert Testimony;
(iii) granted in part and denied in part the Plaintiffs' Motion to
Exclude Expert Testimony of Dr. Keith R. Ugone and Dr. Charles A.
Poynton; and (iv) denied the Plaintiffs' Motion to Exclude the
Declaration of Taylor Vander Aarde.
The case is a class action brought by the Named Plaintiffs against
Defendants LG and Best Buy. The Plaintiffs purchased televisions
manufactured by LG either on Bestbuy.com or in a Best Buy store.
They allege that, prior to buying the televisions, they decided to
purchase a television with a refresh rate of either 120Hz or 240Hz.
They contend that they spent weeks shopping for their preferred
television and that advertisements and specifications indicated
these LG televisions had refresh rates of either 120Hz or 240Hz.
After purchasing their televisions, the Plaintiffs allege that they
noticed that the television images were not as clear as expected.
They later learned that the televisions used a technology called
backlight scanning to enhance picture quality and, therefore, had a
"native" refresh rate of only 60Hz or 120Hz, respectively.
In March 2020, the Court granted in part and denied in part the
Plaintiffs' class-certification motion. It certified the proposed
damages class and subclass as to (1) claims against LG under the
New Jersey Consumer Fraud Act ("NJCFA") and claims for unjust
enrichment under New Jersey law; and (2) claims against Best Buy
under the Minnesota Consumer Fraud Act ("MCFA"), Minnesota Uniform
Unlawful Trade Practices Act ("MUTPA"), and claims for unjust
enrichment under Minnesota law.
Because the Court's choice-of-law analysis weighed in favor of
application of home-state law for both breach-of-warranty claims
and breach-of-contract claims, the Court declined to certify a
class for those counts. It also declined to certify an injunctive
class because it concluded that the Plaintiffs' case is primarily
seeking monetary damages.
Now, under the operative SCC, (i) there are three named Plaintiffs;
(ii) four class claims: Count I (MCFA), Count III (MUTPA), Count IV
(NJCFA), and Count XIII (Unjust Enrichment); and there are nine
claims brought only by the Named Plaintiffs: Count II (Minnesota
Uniform Deceptive Trade Practices Act ("MDTPA"); Count V
(California Legal Remedies Act ("CLRA"); Count VI (California
Unfair Competition Law ("UCL"); Count VII (Illinois Consumer Fraud
and Deceptive Business Practices Act ("ICFA"); Count VIII (New York
General Business Law ("GBL"); Count IX (Pennsylvania Unfair Trade
Practices & Consumer Protection Law ("PUTP"); Count X (Breach of
Express Warranty); Count XI (Breach of Implied Warranty); and Count
XII (Breach of Contract) (against Best Buy only).
The Defendants moved for summary judgment.
Addressing the motion for summary judgment, Judge Tunheim will deny
the Defendants' Motion for Summary Judgment except as to claims for
injunctive relief under Count II (MDTPA); Count V (CLRA); and Count
VI (UCL). According to Judge Tunheim, the Named Plaintiffs offer
no evidence that they are likely to be harmed in the future by the
Defendants' alleged mislabeling. The only record evidence suggests
that neither Fleishman nor Mannacio plan to purchase any television
in the foreseeable future. There does not appear to be any
evidence either way of Hudock's plans to purchase a new television.
Given the absence of any evidence of the likelihood of future harm
to the Named Plaintiffs, they lack standing to seek injunctive
relief.
The Judge will also sua sponte dismiss Count VII (ICFA) and Count
VIII (GBL) as those claims were not certified for the Class and
there are no longer any named Plaintiffs who reside in either
Illinois or New York.
Both parties also filed motions to exclude expert testimony. The
Plaintiffs later filed a Motion to Exclude a declaration in support
of the Defendants' summary judgment motion. The Plaintiffs move to
exclude the Defendants' experts Ugone and Poynton, and the
Declaration of Vander Aarde.
The Plaintiffs argue that Ugone offered four opinions which comment
on survey design despite not being an expert on CBC survey design,
methodology, or analysis. In addition, they attack Ugone's opinion
for being speculative, unreliable, and based on insufficient facts.
Finally, they argue three of the four opinions that Ugone offers
are duplicative in violation of Fed. R. Evid. 403.
The Plaintiffs challenge Dr. Poynton's opinions on four grounds:
(i) his qualifications; (ii) the reliability of his methods; (iii)
relevancy; and (iv) whether he usurps the role of factfinder by
commenting on the ultimate question of the case.
The Defendants move to exclude certain expert testimony of Steven
P. Gaskin and Colin B. Weir, taking issue with a choice-based
conjoint ("CBC") analysis conducted by Gaskin and utilized by Weir
to calculate class-wide damage. First, mirroring their summary
judgment argument, the Defendants contend that Gaskin's CBC survey
does not reliably measure relevant market-price damages because it
does not consider both demand and supply-side factors. They also
argue that the survey to collect the CBC data was unreliable, and
that Gaskin's analysis of the data has various flaws. Finally, the
Defendants argue that some of the survey responses were
unreasonable, and thus the entire survey should be discarded.
Ultimately, they argue that because evidence exists which
undermines the reliability of Gaskin's CBC, it ought to be
excluded.
Judge Tunheim will deny the Defendants' Motion to Exclude, and deny
the Plaintiffs' Motions to Exclude, except as to Ugone's opinion
that the design of the Plaintiffs' damages model is flawed because
Ugone is not qualified to opine as a survey-design expert.
Judge Tunheim will also deny both the Plaintiffs' Motion to Exclude
Defendants' Expert Dr. Poynton and their Motion to Exclude the
Declaration of Aarde. Poynton's relevant experience, including a
40-year career in television-display technology and multiple awards
for his work, render him sufficiently qualified despite his lack of
refresh rate specialization. As to Vander Aarde, the Defendants
produced over 750 documents which mentioned Vander Aarde's name or
email address, and multiple deponents discussed Vander Aarde. He
was frequently identified in documents and depositions produced
during discovery.
Based on the foregoing, Judge Tunheim granted in part and denied in
part the Defendants' Motion for Summary Judgment. Count II of the
Plaintiffs' Second Consolidated Complaint is dismissed with
prejudice. Counts V and VI of the Plaintiffs' Second Consolidated
Complaint are dismissed with prejudice so far as they seek
injunctive relief. Counts VII and VIII of the Plaintiffs' Second
Consolidated Complaint are dismissed without prejudice.
Judge Tunheim (i) denied the Defendants' Motion to Exclude Expert
Testimony; (ii)granted in part and denied in part the Plaintiffs'
Motion to Exclude Expert Testimony; (iii) denied the Plaintiffs'
Motion to Exclude Expert Testimony; and (iv) denied the Plaintiffs'
Motion to Exclude the Declaration of Vander Aarde.
A full-text copy of the Court's Aug. 12, 2020 Order is available at
https://tinyurl.com/y5a72fer from Leagle.com.
David M. Cialkowski -- david.cialkowski@zimmreed.com -- and Alyssa
Leary -- Alyssa.leary@zimmreed.com -- ZIMMERMAN REED, 1100 IDS
Center, 80 South Eighth Street, Minneapolis, Minnesota 55402, Raina
Borrelli -- rborrelli@gustafsongluek.com -- Brittany N. Resch --
bresch@gustafsongluek.com -- and Daniel C. Hedlund --
dhedlund@gustafsongluek.com -- GUSTAFSON GLUEK PLLC, 120 South
Sixth Street, Suite 2600, Minneapolis, Minnesota 55402, for
plaintiffs.
Phoebe Anne Wilkinson -- Phoebe.wilkinson@hoganlovells.com -- HOGAN
LOVELLS US LLP, 875 Third Avenue, New York, New York 10020, Robert
Benjamin Wolinsky, HOGAN LOVELLS US LLP, 555 Thirteenth Street
Northwest, Washington, District of Columbia, 20004, Peter H. Walsh
-- peter.walsh@hoganlovells.com -- HOGAN LOVELLS US LLP, 80 South
Eighth Street, Suite 1225, Minneapolis, Minnesota 55402, for
defendants.
LIBRARY SYSTEMS: Khaled Seeks to Certify Settlement Class
---------------------------------------------------------
In the class action lawsuit captioned as ELIZABETH KHALED, on
behalf of herself, and all others similarly situated, and as an
"aggrieved employee" on behalf of other "aggrieved employees" under
the Labor Code Private Attorneys General Act of 2004, v. LIBRARY
SYSTEMS AND SERVICES, LLC, a Maryland limited liability company;
and DOES 1 through 50, inclusive, Case No. e 5:19-cv-01478-JGB-KK
(C.D. Cal.), the Plaintiff Elizabeth Khaled will move the Court for
an order:
1. granting class certification of the Settlement Class
solely for settlement purposes pursuant to Rule 23 of
Federal Rules of Civil Procedure;
2. preliminarily approving the Stipulation of Class
Settlement and Release Between Plaintiff and Defendant;
3. appointing David Spivak of The Spivak Law Firm and Walter
Haines of United Employees Law Group as Class Counsel;
4. appointing herself as the Representative Plaintiff;
5. approving the use of the proposed notice procedures and
related forms;
6. directing that notice be mailed to the proposed Settlement
Class; and
7. scheduling a hearing date for motion for final approval of
class action settlement and awards of attorneys' fees and
costs.
The essential monetary terms of the Settlement are:
a. Defendant LSS LLC's payment of a Gross Settlement Amount
("GSA") of $450,000;
b. Plaintiff's Incentive Award of up to $15,000;
c. Class Counsel's fees of not more than one-third of the
GSA, or $150,000;
d. Class Counsel's costs and expenses not to exceed $18,000;
e. The Claims Administrator's costs not to exceed $17,500;
f. Civil penalties under the California Private Attorneys
General Act (PAGA) of $10,000, of which 25% or $2,500 will
be payable to the Settlement Class and 75% or $7,500 will
be payable to California Labor and Employee Workforce
Development Agency;
g. The Net Settlement Amount ("NSA") is the net amount
available for distribution to Settlement Class Members
after payments have been made from the GSA for (i)
Plaintiff's Incentive Award; (2) Class Counsel's
attorney's fees; (3) Class Counsel's costs and expenses;
(4) Claims Administration Costs; (5) the portion of the
PAGA payment payable to the LWDA; and (6) employer- and
employee-side taxes.
Library Systems is a private for-profit company that manages
municipal libraries on an outsourced basis. It is the largest
library outsourcing company in the United States. It runs 20
library systems in 80 locations.
A copy of the Plaintiff's motion for preliminary approval of the
class action settlement is available from PacerMonitor.com at
https://bit.ly/2Goy08I at no extra charge.[CC]
The Plaintiff is represented by:
David G. Spivak, Esq.
Carl J. Kaplan, Esq.
THE SPIVAK LAW FIRM
16530 Ventura Blvd., Suite 203
Encino, CA 91436
Telephone: (818) 582-3086
Facsimile: (818) 582-2561
E-mail: david@spivaklaw.com
carl@spivaklaw.com
- and -
Walter Haines, Esq.
UNITED EMPLOYEES LAW GROUP
5500 Bolsa Ave, Suite 201
Huntington Beach, CA 92649
Telephone: (562) 256-1047
Facsimile: (562) 256-1006
E-mail: whaines@uelglaw.com
MASIMO CORP: Physicians Healthsource's Suit Ongoing
---------------------------------------------------
Masimo Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 26, 2020, that the company
continues to defend a class action suit initiated by Physicians
Healthsource, Inc. (PHI).
On January 2, 2014, a putative class action complaint was filed
against the Company in the U.S. District Court for the Central
District of California by Physicians Healthsource, Inc. (PHI).
The complaint alleges that the Company sent unsolicited facsimile
advertisements in violation of the Junk Fax Protection Act of 2005
and related regulations.
The complaint seeks $500 for each alleged violation, treble damages
if the District Court finds the alleged violations to be knowing,
plus interest, costs and injunctive relief.
On March 26, 2019, an amended complaint was filed adding Radha
Geismann, M.D. PC as an additional named plaintiff. On June 17,
2019, the plaintiffs filed their motion for class certification. On
September 10, 2019, the parties filed motions for summary judgment.
On September 30, 2019, the Company filed its opposition to the
motion for class certification, and the plaintiffs filed their
reply on October 7, 2019.
On November 21, 2019, the District Court issued an order denying
the plaintiffs' motion for class certification and granting in part
and denying in part the Company's motion for summary judgment, and
deferring ruling on the plaintiffs' motion for summary judgment.
On December 5, 2019, the plaintiffs filed a petition for permission
to appeal the order denying class certification, which was denied
on January 24, 2020. Trial of the individual plaintiffs' claims was
scheduled for June 2, 2020, but on April 1, 2020, the District
Court vacated the trial date and directed the parties to conduct an
in-person mediation. The mediation has not occurred and no new
trial date has been set.
On July 13, 2020, the District Court issued an order granting in
part and denying in part the plaintiffs' motion for summary
judgment.
Masimo said, "The Company believes it has good and substantial
defenses to the claims, but there is no guarantee that the Company
will prevail. The Company is unable to determine whether any loss
will ultimately occur or to estimate the range of such loss;
therefore, no amount of loss has been accrued by the Company in the
accompanying condensed consolidated financial statements."
Masimo Corporation, a medical technology company, develops,
manufactures, and markets noninvasive monitoring technologies
worldwide. Masimo Corporation was founded in 1989 and is
headquartered in Irvine, California.
MASTERCARD INC: Appeals in Point-of-Sale Acceptance Suit Ongoing
----------------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 30, 2020, that objectors to a
class action settlement in Canada have sought to appeal the
approval orders and certain appellate courts have rejected the
objectors' appeals, while outstanding appeals remain in a few
provinces.
In December 2010, a proposed class action complaint was commenced
against Mastercard in Quebec on behalf of Canadian merchants. The
suit essentially repeated the allegations and arguments of a
previously filed application by the Canadian Competition Bureau to
the Canadian Competition Tribunal (dismissed in Mastercard's favor)
concerning certain Mastercard rules related to point-of-sale
acceptance, including the "honor all cards" and "no surcharge"
rules.
The Quebec suit sought compensatory and punitive damages in
unspecified amounts, as well as injunctive relief.
In the first half of 2011, additional purported class action
lawsuits were commenced in British Columbia and Ontario against
Mastercard, Visa and a number of large Canadian financial
institutions.
The British Columbia suit sought compensatory damages in
unspecified amounts, and the Ontario suit sought compensatory
damages of $5 billion on the basis of alleged conspiracy and
various alleged breaches of the Canadian Competition Act.
Additional purported class action complaints were commenced in
Saskatchewan and Alberta with claims that largely mirror those in
the other suits.
In June 2017, Mastercard entered into a class settlement agreement
to resolve all of the Canadian class action litigation.
The settlement, which requires Mastercard to make a cash payment
and modify its "no surcharge" rule, has received court approval in
each Canadian province. Objectors to the settlement have sought to
appeal the approval orders. Certain appellate courts have rejected
the objectors' appeals, while outstanding appeals remain in a few
provinces.
No further updates were provided in the Company's SEC report.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MASTERCARD INC: Class Cert. Bids in ATM Surcharge Suits Pending
---------------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 30, 2020, that the motions for
class certification filed in the ATM Surcharge Fees suits remain
pending.
In October 2011, a trade association of independent Automated
Teller Machine ("ATM") operators and 13 independent ATM operators
filed a complaint styled as a class action lawsuit in the U.S.
District Court for the District of Columbia against both Mastercard
and Visa (the "ATM Operators Complaint").
Plaintiffs seek to represent a class of non-bank operators of ATM
terminals that operate in the United States with the discretion to
determine the price of the ATM access fee for the terminals they
operate.
Plaintiffs allege that Mastercard and Visa have violated Section 1
of the Sherman Act by imposing rules that require ATM operators to
charge non-discriminatory ATM surcharges for transactions processed
over Mastercard's and Visa's respective networks that are not
greater than the surcharge for transactions over other networks
accepted at the same ATM.
Plaintiffs seek both injunctive and monetary relief equal to treble
the damages they claim to have sustained as a result of the alleged
violations and their costs of suit, including attorneys' fees.
Subsequently, multiple related complaints were filed in the U.S.
District Court for the District of Columbia alleging both federal
antitrust and multiple state unfair competition, consumer
protection and common law claims against Mastercard and Visa on
behalf of putative classes of users of ATM services (the "ATM
Consumer Complaints").
The claims in these actions largely mirror the allegations made in
the ATM Operators Complaint, although these complaints seek damages
on behalf of consumers of ATM services who pay allegedly inflated
ATM fees at both bank and non-bank ATM operators as a result of the
defendants' ATM rules.
Plaintiffs seek both injunctive and monetary relief equal to treble
the damages they claim to have sustained as a result of the alleged
violations and their costs of suit, including attorneys' fees.
In January 2012, the plaintiffs in the ATM Operators Complaint and
the ATM Consumer Complaints filed amended class action complaints
that largely mirror their prior complaints. In February 2013, the
district court granted Mastercard's motion to dismiss the
complaints for failure to state a claim. On appeal, the Court of
Appeals reversed the district court's order in August 2015 and sent
the case back for further proceedings. In September 2019, the
plaintiffs filed their motions for class certification in which the
plaintiffs, in aggregate, allege over $1 billion in damages against
all of the defendants.
Mastercard intends to vigorously defend against both the
plaintiffs' liability and damages claims and has opposed class
certification. Briefing on class certification is complete.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MASTERCARD INC: Class Cert. Ruling in Shift Fraud Suit Appealed
---------------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 30, 2020, that the defendants in
the class action suit involving conspiracy to shift fraud liability
have taken an appeal from the court decision granting class
certification.
In March 2016, a proposed U.S. merchant class action complaint was
filed in federal court in California alleging that Mastercard,
Visa, American Express and Discover (the "Network Defendants"),
EMVCo, and a number of issuing banks (the "Bank Defendants")
engaged in a conspiracy to shift fraud liability for card present
transactions from issuing banks to merchants not yet in compliance
with the standards for EMV chip cards in the United States (the
"EMV Liability Shift"), in violation of the Sherman Act and
California law.
Plaintiffs allege damages equal to the value of all chargebacks for
which class members became liable as a result of the EMV Liability
Shift on October 1, 2015.
The plaintiffs seek treble damages, attorney's fees and costs and
an injunction against future violations of governing law, and the
defendants have filed a motion to dismiss.
In September 2016, the district court denied the Network
Defendants' motion to dismiss the complaint, but granted such a
motion for EMVCo and the Bank Defendants.
In May 2017, the district court transferred the case to New York so
that discovery could be coordinated with the U.S. merchant class
interchange litigation.
In August 2020, the district court issued an order granting the
plaintiffs' request for class certification. The Network Defendants
have requested permission to appeal the district court's
certification decision to the appellate court. The case is
proceeding with substantive expert discovery.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MASTERCARD INC: Damage Class Settlement Approval Order Appealed
---------------------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 30, 2020, that the district
court's order granting approval of the damage class settlement has
been appealed.
In June 2005, the first of a series of complaints were filed on
behalf of merchants (the majority of the complaints were styled as
class actions, although a few complaints were filed on behalf of
individual merchant plaintiffs) against Mastercard International,
Visa U.S.A., Inc., Visa International Service Association and a
number of financial institutions.
Taken together, the claims in the complaints were generally brought
under both Sections 1 and 2 of the Sherman Act, which prohibit
monopolization and attempts or conspiracies to monopolize a
particular industry, and some of these complaints contain unfair
competition law claims under state law.
The complaints allege, among other things, that Mastercard, Visa,
and certain financial institutions conspired to set the price of
interchange fees, enacted point of sale acceptance rules (including
the no surcharge rule) in violation of antitrust laws and engaged
in unlawful tying and bundling of certain products and services.
The cases were consolidated for pre-trial proceedings in the U.S.
District Court for the Eastern District of New York in MDL No.
1720. The plaintiffs filed a consolidated class action complaint
that seeks treble damages.
In July 2006, the group of purported merchant class plaintiffs
filed a supplemental complaint alleging that Mastercard's initial
public offering of its Class A Common Stock in May 2006 (the "IPO")
and certain purported agreements entered into between Mastercard
and financial institutions in connection with the IPO: (1) violate
U.S. antitrust laws and (2) constituted a fraudulent conveyance
because the financial institutions allegedly attempted to release,
without adequate consideration, Mastercard's right to assess them
for Mastercard’s litigation liabilities.
The class plaintiffs sought treble damages and injunctive relief
including, but not limited to, an order reversing and unwinding the
IPO.
In February 2011, Mastercard and Mastercard International entered
into each of: (1) an omnibus judgment sharing and settlement
sharing agreement with Visa Inc., Visa U.S.A. Inc. and Visa
International Service Association and a number of financial
institutions; and (2) a Mastercard settlement and judgment sharing
agreement with a number of financial institutions.
The agreements provide for the apportionment of certain costs and
liabilities which Mastercard, the Visa parties and the financial
institutions may incur, jointly and/or severally, in the event of
an adverse judgment or settlement of one or all of the cases in the
merchant litigations. Among a number of scenarios addressed by the
agreements, in the event of a global settlement involving the Visa
parties, the financial institutions and Mastercard, Mastercard
would pay 12% of the monetary portion of the settlement.
In the event of a settlement involving only Mastercard and the
financial institutions with respect to their issuance of Mastercard
cards, Mastercard would pay 36% of the monetary portion of such
settlement.
In October 2012, the parties entered into a definitive settlement
agreement with respect to the merchant class litigation (including
with respect to the claims related to the IPO) and the defendants
separately entered into a settlement agreement with the individual
merchant plaintiffs.
The settlements included cash payments that were apportioned among
the defendants pursuant to the omnibus judgment sharing and
settlement sharing agreement described above. Mastercard also
agreed to provide class members with a short-term reduction in
default credit interchange rates and to modify certain of its
business practices, including its "no surcharge" rule.
The court granted final approval of the settlement in December
2013, and objectors to the settlement appealed that decision to the
U.S. Court of Appeals for the Second Circuit.
In June 2016, the court of appeals vacated the class action
certification, reversed the settlement approval and sent the case
back to the district court for further proceedings.
The court of appeals' ruling was based primarily on whether the
merchants were adequately represented by counsel in the settlement.
As a result of the appellate court ruling, the district court
divided the merchants' claims into two separate classes - monetary
damages claims (the "Damages Class") and claims seeking changes to
business practices (the "Rules Relief Class"). The court appointed
separate counsel for each class.
In September 2018, the parties to the Damages Class litigation
entered into a class settlement agreement to resolve the Damages
Class claims. Mastercard increased its reserve by $237 million
during 2018 to reflect both its expected financial obligation under
the Damages Class settlement agreement and the filed and
anticipated opt-out merchant cases. The time period during which
Damages Class members were permitted to opt out of the class
settlement agreement ended in July 2019 with merchants representing
slightly more than 25% of the Damages Class interchange volume
choosing to opt out of the settlement.
The district court granted final approval of the settlement in
December 2019. The district court's settlement approval order has
been appealed.
Mastercard has commenced settlement negotiations with a number of
the opt-out merchants and has reached settlements and/or agreements
in principle to settle a number of these claims. The Damages Class
settlement agreement does not relate to the Rules Relief Class
claims. Separate settlement negotiations with the Rules Relief
Class are ongoing.
As of September 30, 2020 and December 31, 2019, Mastercard had
accrued a liability of $784 million and $914 million, respectively,
as a reserve for both the Damages Class litigation and the opt-out
merchant cases.
As of September 30, 2020 and December 31, 2019, Mastercard had $586
million and $584 million, respectively, in a qualified cash
settlement fund related to the Damages Class litigation and
classified as restricted cash on its consolidated balance sheet.
The reserve as of September 30, 2020 for both the Damages Class
litigation and the opt-out merchants represents Mastercard's best
estimate of its probable liabilities in these matters. The portion
of the accrued liability relating to both the opt-out merchants and
the Damages Class litigation settlement does not represent an
estimate of a loss, if any, if the matters were litigated to a
final outcome. Mastercard cannot estimate the potential liability
if that were to occur.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MASTERCARD INC: TCPA Class Suit in Florida Ongoing
--------------------------------------------------
Mastercard Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 30, 2020, that the company
continues to defend a class action suit in Florida, involving
Telephone Consumer Protection Act ("TCPA") alleged violations
Mastercard is a defendant in a Telephone Consumer Protection Act
("TCPA") class action pending in Florida.
The plaintiffs are individuals and businesses who allege that
approximately 381,000 unsolicited faxes were sent to them
advertising a Mastercard co-brand card issued by First Arkansas
Bank ("FAB").
The TCPA provides for uncapped statutory damages of $500 per fax.
Mastercard has asserted various defenses to the claims, and has
notified FAB of an indemnity claim that it has (which FAB has
disputed).
In June 2018, the court granted Mastercard's motion to stay the
proceedings until the Federal Communications Commission (FCC) makes
a decision on the application of the TCPA to online fax services.
In December 2019, the FCC issued a declaratory ruling clarifying
that the TCPA does not apply to faxes sent to online fax services
that are received via e-mail. As a result of the ruling, the stay
of the litigation was lifted in January 2020.
The parties have completed briefing plaintiff's motion for class
certification.
Mastercard Incorporated, a technology company, provides transaction
processing and other payment-related products and services in the
United States and internationally. The company was founded in 1966
and is headquartered in Purchase, New York.
MAYO CLINIC: Court Conditionally Certifies Mayo & FDCPA Classes
---------------------------------------------------------------
In the class action lawsuit captioned as as NATALIE KUHR, on behalf
of herself and all conditionally certifies others similarly
situated, v. MAYO CLINIC JACKSONVILLE and PROFESSIONAL SERVICE
BUREAU, INC., Case No. 3:19-cv-00453-MMH-MCR (M.D. Fla.), the Hon.
Judge Marcia Morales Howard entered an order:
1. conditionally certifies, for purposes of settlement only,
the Settlement Class made up of the Mayo Class and the
Fair Debt Collection Practices Act (FDCPA) Subclass,
defined as follows:
The Mayo Class:
"[A]ll Florida residents who according to readily
accessible data and other electronic records of Mayo, at
any time during the period of January 9, 2017 through May
28, 2020, were charged by the Defendant Mayo medical-
related fees related to motor vehicle accidents in excess
of the amount allowed under Florida law.; and
The FDCPA Subclass:
"[A]ll Florida Residents who according to readily
accessible data and other electronic records of Mayo and
PSB, at any time during the period of January 9, 2018
through May 28, 2020, were charged by Defendant PSB acting
on Mayo's behalf medical-related fees related to motor
vehicle accidents in excess of the amount allowed under
Florida law.";
The following individuals are excluded from the Settlement
Class: a) any Judge or Magistrate presiding over this
action and members of their families; b) Defendants,
Defendants' subsidiaries, parents, successors,
predecessors, and any entity in which Defendants or their
parents have a controlling interest and its current or
former employees, officers and directors; c) persons who
properly execute and file a timely request for exclusion
from the Classes; d) the legal representatives,
successors, or assigns of any such excluded persons; e)
Plaintiff's counsel and the Defendants' counsel.
2. designating Plaintiff Natalie Kuhr as Class
Representative, with Plaintiff's Counsel Jordan A. Shaw,
Edward H. Zebersky, and Kimberly A. Slaven of Zebersky,
Payne, Shaw, Lewenz, LLP as Class Counsel.
3. preliminarily approving the terms of the Revised Agreement
as being a fair, reasonable, and adequate resolution of
the dispute between the parties.
4. scheduling a final hearing (Fairness Hearing) on January
20, 2021;
5. directing the Parties on or before January 11, 2021, to
file under seal the list of all putative Settlement Class
Members, along with their last known mailing address, as
updated by the Settlement Administrator (the Class List).
The Class List must indicate which, if any, of the
Settlement Class Members submitted requests for exclusion
from the Settlement Class, and any Settlement Class
Members whose Class Notice was returned as undeliverable.;
6. rejecting the request for an Incentive Award to the Class
Representative, and denying the request for preliminary
approval of this award;
7. directing the parties to review the Court's Class Notice
and insert the relevant information in paragraphs four and
ten to create the Final Class Notice.;
8. approving the the Final Class Notice for distribution to
those individuals on the Class List with a valid mailing
address as determined by the Settlement Administrator in
accordance with the Revised Agreement.
The following deadlines shall govern the distribution
of the Final Class Notice:
a. Defendants shall immediately provide a list of the
approximately 371 putative members of the Settlement
Class (the Class List) with their last known mailing
address to the Settlement Administrator.
b. The Settlement Administrator shall obtain updates, if
any, to the addresses contained in the Class List as
provided in paragraph 2.03 of the Revised Agreement.
c. No later than Friday, November 6, 2020, the Settlement
Administrator shall mail the Final Class Notice via
first class mail to each Class Member at the address
set forth on the Class List, as updated by the
Settlement Administrator.
9. directing the Plaintiff, after conferral with the
Defendants, to file a Motion to Finally Approve the
Settlement Agreement on or before January 11, 2021;
10. authorizing Class Counsel to represent and act on behalf
of the Settlement Class with respect to all acts required
by the Revised Agreement or such other acts which are
reasonably necessary to consummate the spirit of the
Revised Agreement;
11. staying pending all litigation, including discovery,
other than further proceedings with respect to the Revised
Agreement;
The Court found that the Plaintiff has met the prerequisites to
class certification set forth in Rule 23, Federal Rules of Civil
Procedure.
The Plaintiff Natalie Kuhr initiated this action in state court on
January 9, 2019, against the Defendants. PSB removed this action to
this Court, with Mayo's consent, on April 22, 2019. In the
Complaint, the Plaintiff asserts claims against Mayo and PSB under
both the Florida Consumer Collection Practices Act (FCCPA), and the
FDCPA. The Plaintiff alleges that Mayo billed, and PSB attempted to
collect, medical fees in excess of the amounts permitted under
Florida law from certain Florida residents whose medical care was
covered by personal injury protection (PIP) insurance.
Mayo Clinic is a comprehensive medical center.
A copy of the Court's Order is available from PacerMonitor.com at
https://bit.ly/3lFX4XD at no extra charge.[CC]
MDL 2742: Distribution Plan of Net Settlement Fund Approved
-----------------------------------------------------------
Judge P. Kevin Castel of the U.S. District Court for the Southern
District of New York granted the Plaintiffs' Unopposed Motion for
Approval of Distribution Plan in IN RE: SUNEDISON, INC. SECURITIES
LITIGATION. This Document Relates To: Horowitz et al. v. SunEdison,
Inc. et al., 1:16-cv-07917-PKC, Civil Action No. 1:16-md-2742-PKC,
MDL Docket No. 2742 (S.D. N.Y.).
The Order incorporates by reference the definitions in the
Stipulation and Agreement of Settlement dated July 11, 2019, and
the Simmons Declaration. The Plaintiffs' plan for distribution of
the Net Settlement Fund to Authorized Claimants is approved.
The administrative recommendations of the Court-approved Claims
Administrator, Analytics Consulting, LLC, to accept the Timely
Eligible Claims stated in Exhibit D to the Simmons Declaration and
the Late But Otherwise Eligible Claims stated in Exhibit E to the
Simmons Declaration, are adopted.
The Claims Administrator's administrative recommendations to reject
wholly ineligible Claims, as stated in Exhibit F to the Simmons
Declaration, are adopted.
Analytics is directed to conduct an Initial Distribution of the Net
Settlement Fund, after deducting all payments previously allowed
and the payments approved by the Order, and after deducting the
payment of any estimated taxes, the costs of preparing appropriate
tax returns, and any escrow fees, while maintaining a 5% reserve
from the Net Settlement Fund to address any tax liability and
claims administration-related contingencies that may arise.
Specifically,
(1) Analytics will calculate each Authorized Claimant's: (a)
pro rata share of the Exchange Act Claim Fund based on the amount
of the Authorized Claimant's Exchange Act Recognized Claim in
comparison to the total Exchange Act Recognized Claims of all
Authorized Claimants; and (b) pro rata of the Securities Act Claim
Fund based on the amount of the Authorized Claimant's Securities
Act Recognized Claim in comparison to the total Securities Act
Recognized Claims of all Authorized Claimants;
(2) Analytics will, in accordance with the terms of the
Court-approved Plan of Allocation, calculate the total amount each
Authorized Claimant would recover in accordance with the
calculations stated and then will eliminate from the Initial
Distribution any Authorized Claimant whose combined pro rata shares
of the Exchange Act Claim Fund and Securities Act Claim Fund
calculate to less than $10. These Claimants will not receive any
payment from the Net Settlement Fund and will be so notified by
Analytics;
(3) After eliminating Claimants who would have received less
than $10 in the Initial Distribution, Analytics will recalculate
the pro rata share of the Exchange Act Claim Fund and Securities
Act Claim Fund for all Authorized Claimants who would have received
$10 or more pursuant to the calculations described, and the sum of
those pro rata shares is the Authorized Claimant's Distribution
Amount;
(4) Authorized Claimants whose Distribution Amount calculates
to less than $100 will be paid their fill Distribution Amount in
the Initial Distribution (Claims Paid in Full), and these
Authorized Claimants will get no additional funds in subsequent
distributions; and
(5) After deducting the payments to the Claims Paid in Full,
95% of the remaining balance of the Net Settlement Fund will be
distributed pro rata to Authorized Claimants whose Distribution
Amount calculates to $100 or more. The remaining 5% of the Net
Settlement Fund will be held in reserve (the Reserve) to address
any tax liability and claims administration-related contingencies
that may arise. To the extent the Reserve is not depleted, the
remainder will be distributed in the Second Distribution.
In order to encourage Authorized Claimants to cash their checks
promptly, all distribution checks will bear the following notation:
Cash Promptly. Void and Subject to Redistribution if Not Cashed by
[90 Days After Issue Date]. The Lead Counsel and Analytics are
authorized to take appropriate action to locate and contact
Authorized Claimants who have not cashed their distribution checks
within said time.
The Authorized Claimants who do not cash their Initial Distribution
checks within the time allotted or on the conditions stated will
irrevocably forfeit all recovery from the Settlement, and the funds
allocated to all stale-dated checks will be available to be
distributed to other Authorized Claimants in the Second
Distribution. Similarly, Authorized Claimants who do not cash
their second or subsequent distribution checks (should such
distributions occur) within the time allotted or on the conditions
stated will irrevocably forfeit any further recovery from the Net
Settlement Fund.
After Analytics has made reasonable and diligent efforts to have
Authorized Claimants cash their Initial Distribution checks, but
not earlier than seven months after the Initial Distribution,
Analytics will conduct a second distribution in which any amount
remaining in the Net Settlement Fund after the Initial
Distribution, after deducting Analytics' unpaid fees and expenses
incurred in administering the Settlement, and after deducting the
payment of any estimated taxes, the costs of preparing appropriate
tax returns, and any escrow fees, will be distributed to all
Authorized Claimants who cashed their Initial Distribution check
and are entitled to receive at least $10 from the Second
Distribution based on their pro rata share of the remaining funds.
Additional distributions, after deduction of costs and expenses as
described above and subject to the same conditions, may occur
thereafter in six-month intervals until the Lead Counsel determines
that further distribution is not cost-effective.
At such time as the Lead Counsel, in consultation with Analytics,
determines that further distribution of the funds remaining in the
Net Settlement Fund is not cost-effective, if sufficient funds
remain to warrant the processing of Claims received after June 29,
2020, such Claims will be processed, and any such Claims that are
otherwise valid, as well as any previously received Claims for
which an adjustment was received after submission of the
Plaintiffs' motion that resulted in an increased Recognized Claims
amount, will be paid. If any funds remain in the Net Settlement
Fund after payment of such late or late-adjusted Claims, the
remaining balance of the Net Settlement Fund, after payment of any
unpaid fees or expenses incurred in connection with administering
the Net Settlement Fund and after the payment of any estimated
taxes, the costs of preparing appropriate tax returns, and any
escrow fees, will be contributed to nonsectarian, not-for-profit,
organization(s), to be recommended by the Lead Counsel and approved
by the Court.
No new Claims may be accepted after June 29, 2020, and no further
adjustments to previously received Claims that would result in an
increased Recognized Claims amount may be made, subject to the
following exception. If Claims are received or modified that would
have been eligible for payment or additional payment under the Plan
of Al location if timely received, then, at the time that the Lead
Counsel determines that a redistribution is not cost-effective, and
after payment of any unpaid fees or expenses incurred in connection
with administering the Net Settlement Fund and after deducting the
payment of any estimated taxes, the costs of preparing appropriate
tax returns, and any escrow fees, such Claimants may be paid the
distribution amounts or additional distribution amounts on a pro
rata basis that would bring them into parity with other Authorized
Claimants who have cashed all their prior distribution checks to
the extent possible.
All of Analytics' fees and expenses incurred in the administration
of the Settlement and estimated to be incurred in connection with
the Distribution of the Net Settlement Fund are approved, and the
Lead Counsel is directed to pay the outstanding balance of
$56,828.75 out of the Settlement Fund to Analytics.
Unless otherwise ordered by the Court, one year after the Second
Distribution, if that occurs, or, if there is no Second
Distribution, two years after the Distribution, Analytics may
destroy the paper copies of the Claims and all supporting
documentation, and one year after all funds have been distributed
may destroy electronic copies of the same.
A full-text copy of the Court's Aug. 26, 2020 Order is available at
https://tinyurl.com/y6enypjg from Leagle.com.
MERCED CITY, CA: Mag. Judge Recommends OK of McKinnon Suit Deal
----------------------------------------------------------------
In the case, NATHANIEL McKINNON, et al., Plaintiffs, v. CITY OF
MERCED, Defendant, Case No. 1:18-cv-01124-NONE-SAB (E.D. Cal.),
Magistrate Judge Stanley A. Boone of the U.S. District Court for
the Eastern District of California issued his findings and
recommendations recommending the granting of the parties' joint
motion for preliminary approval of settlement agreement and
certification of the collective for purposes of settlement.
Named Plaintiffs McKinnon, Courtney Bohanan, Edward Drum, Timothy
Gaches, Joseph Perez, and Luis R. Solis bring the action on behalf
of themselves and all similarly situated individuals, against
Defendant City of Merced, alleging various wage and hour violations
under the Fair Labor Standards Act ("FLSA").
The Plaintiffs are 75 current or former employees of Defendant City
of Merced claiming unpaid overtime compensation under the FLSA
stemming from the Defendant's alleged failure to include
holiday-in-lieu pay in the regular rate of pay used to calculate
overtime compensation. Specifically, they allege that because they
were required to work on designated holidays that other City
employees were allowed to take off, the holiday-in-lieu pay was
compensation pursuant to the FLSA and should have been included in
calculating and paying the Plaintiffs' overtime compensation. The
City denies that it was required to include holiday-in-lieu pay in
the regular rate and asserts that the Plaintiffs were properly and
fully compensated for their overtime work.
The Plaintiffs assert that the Defendant has miscalculated their
overtime compensation by not including the holiday-in-lieu pay in
the overtime rate calculation. They contend that, by excluding the
holiday-in-lieu pay from their regular rate of pay, the Defendant
violated the FLSA by failing to pay full compensation for all hours
of overtime worked.
On Aug. 17, 2018, the Named Plaintiffs filed this action. On Oct.
9, 2018, the Defendant filed a motion to dismiss that was denied on
Dec. 21, 2018. On Dec. 28, 2018, the Defendant filed an answer to
the complaint. On Feb. 6, 2019, the Court issued a scheduling
order setting among other dates, a trial date of Jan. 26, 2021.
On June 20, 2019, pursuant to the parties' stipulation, the Court
issued an order conditionally certifying the matter as a collective
action. In addition to the six Named Plaintiffs, 69 current and
former employees of the City filed consents joining the action as
Plaintiffs. Of the 75 Plaintiffs, 73 are or were employed by the
City of Merced in the Police Department, and the remaining two are
employed as refuse equipment operates by the City.
The parties proffer that after extensive discovery and
investigative activities, as well as substantial negotiations,
including an all-day mediation, they reached an agreement to settle
the action. Pursuant to the proposed settlement agreement,
Defendant City of Merced will pay a total of $250,000 to settle the
action, inclusive of attorneys' fees and costs. A total of
$106,119 is allocated to pay damages to the Plaintiffs. Attorneys'
fees will be paid in the amount of $106,984.23 for services
rendered in the action, and costs will be paid in the amount of
$36,896.77, for a total of $143,881 in total fees and costs to be
paid to the law firm of the Plaintiffs' counsel.
Each collective action member agrees to dismiss with prejudice his
or her claims in the action. The Settlement Agreement applies to
any complaint, claim, grievance or charge for FLSA overtime
compensation related to the action, filed with any state or federal
court, with any administrative body, agency, board, commission, or
other entity. The Plaintiffs are releasing all claims, known or
unknown, arising out of the matters raised in this action including
all claims made in the lawsuit for unpaid overtime, liquidated
damages and attorneys' fees and costs that have occurred up to and
including the effective date of the Settlement Agreement. The
parties proffer that the 75 Plaintiffs have signed an individual
signature page or acknowledgement agreeing to the terms of the
Settlement Agreement.
On May 14, 2020, the parties filed a notice of conditional
settlement. On the same date, the Court vacated all pending dates
and matters and ordered the Plaintiffs to file a motion for
approval of settlement within 60 days. Pursuant to the parties'
stipulation, on July 14, 2020, the Court extended the deadline for
filing until July 17, 2020. On July 16, 2020, parties filed the
joint motion for approval of the FLSA settlement and set a hearing
to occur on Aug. 19, 2020. On Aug. 19, 2020, the Court held a
hearing on the motion via videoconference.
Magistrate Judge Boone finds that the policy alleged to have
violated the FLSA is a department-wide policy to which all the
Plaintiffs were subjected, which supports finding that the
employees are similarly situated under the FLSA. He finds that the
Plaintiffs are similarly situated under the FLSA and recommends the
action be certified to proceed as a collective action for purposes
of settlement.
As to whether a bona fide dispute exists, Magistrate Judge Boone
finds that (i) the parties have a bona fide dispute regarding
whether the Defendant was required to include holiday-in-lieu pay
in the regular rate for the purposes of calculating overtime under
the FLSA; (ii) a bona fide dispute exists between the parties as to
the proper method to calculate the amount of wage damages in the
action; (iii) a bona fide dispute exists over the fact and which
limitations period is applicable to the action, based on the
parties' opposing positions regarding whether the Defendant's
conduct was willful; (iv) a bona fide dispute exists as to whether
the Plaintiffs are entitled to liquidated damages should they
prevail in the action.; and (v) bona fide disputes exist between
the parties as to whether there was a violation of the FLSA, the
method for calculating damages, whether liquidated damages could be
recovered in the action, and whether the Defendant's conduct was
willful and the related impact on the appropriate statute of
limitations.
Having found that a bona fide dispute exists, the Magistrate Judge
considers whether the settlement is fair and reasonable. He finds
that (i) the amount offered in settlement; (ii) the stage of the
proceedings and the amount of discovery that was conducted; (iii)
consideration of the future litigation risks; (iv) the scope of the
release; (v) the experience and views of the counsel, along with
the fact that the Plaintiffs each reviewed and agreed to the terms
of the settlement agreement; (vi) the settlement was reached by
arm's-length bargaining; and (vii) the settlement's overall effect,
which is to vindicate the policy goals and purposes of the FLSA,
all weigh in favor of finding the settlement to be fair and
reasonable resolution of a bona fide dispute.
Assessing the reasonableness of the attorneys' fee award,
Magistrate Judge Boone finds that (i) the amount of attorneys' fees
is well above the 25% benchmark; (ii) the Plaintiffs have
sufficiently demonstrated the reasonable expenditure of 445.4 total
hours of attorney and law clerk time; and (iii) the counsels'
normal hourly rates to be reasonable rates to utilize in the
lodestar calculation, and sees no compelling reason to adopt the
higher proposed $450 rate.
He emphasizes that while he ultimately finds the total fees and
costs to be reasonable as based on the counsels' sufficient
explanation, the counsel is cautioned that when an accounting
expert's services are utilized to the extent they were, attorneys'
hours billed should normally and comparatively be lessened to
reflect that the accounting expert firm carried a major load of the
litigation work, particularly when in a pre-trial posture.
Nonetheless, for all the reasons explained, he accepts the
attorneys' fees and the costs as reasonable. He recommends
attorneys' fees in the amount of $106,984.23 be approved as part of
the parties' settlement.
Finally, the counsel has attached multiple invoices from the
expert's firm that itemizes the tasks completed by the various
timekeepers. Magistrate Judge Boone does not find any of the tasks
to be facially unreasonable. Accepting the representations of the
counsel explaining the necessity for experts given the complexity
of the records involved, and consent to these terms by the parties
and the Defendant, he does not find the expert fees are out of the
bounds of reasonableness or prohibitively expensive. He also finds
the other documented costs to be reasonable. Accordingly,
Magistrate Judge Boone recommends approval of the total amount of
$36,896.77 in costs as agreed to by the parties in the settlement
agreement.
Based on the forefoing reasons, Magistrate Judge Boone recommended
that (i) the settlement agreement be approved as fair and
reasonable; (ii) the collective be certified for purposes of
settlement; and (iii) the joint motion for approval of the
settlement be granted.
His findings and recommendations is submitted to the district judge
assigned to the action. Within 14 days of service of the
recommendation, any party may file written objections with the
Court and serve a copy on all parties. Such a document should be
captioned "Objections to Magistrate Judge's Findings and
Recommendations." The district judge will review the magistrate
judge's findings and recommendations. The parties are advised that
failure to file objections within the specified time may result in
the waiver of rights on appeal.
A full-text copy of the Court's Aug. 19, 2020 Findings &
Recommendations is available at https://tinyurl.com/y58fvy5f from
Leagle.com.
MERLIN ENTERTAINMENTS: Court Sets Further Deadlines in Case Suit
----------------------------------------------------------------
In the case, JOYCE CASE, individually and on behalf of all others
similarly situated, Plaintiff, v. MERLIN ENTERTAINMENTS GROUP U.S.
HOLDINGS INC., a Delaware corporation; LEGOLAND CALIFORNIA, LLC, a
Delaware limited liability company; MERLIN ENTERTAINMENTS SHORT
BREAKS LLC, a Delaware limited liability company; MADAME TUSSAUDS
HOLLYWOOD LLC, a Delaware limited liability company; MADAME
TUSSAUDS SAN FRANCISCO LLC, a Delaware limited liability company;
and SAN FRANCISCO DUNGEON LLC, Defendants, Case No.
3:20-CV-01049-JAH-MSB (S.D. Cal.), Judge John A. Houston of the
U.S. District Court for the Southern District of California granted
the Parties' Joint Motion to Set Further Case Deadlines and to
Vacate the Hearing Date on Defendants' Motion to Dismiss.
Accordingly, the hearing date on the Defendants' Motion to Dismiss
the Plaintiff's Complaint that was set for Sept. 2, 2020 at 10:30
a.m. was vacated. The Court ordered the Plaintiff to file a First
Amended Complaint no later than Sept. 2, 2020. The Defendants must
move to dismiss or otherwise respond to the Plaintiff's First
Amended Complaint no later than Sept. 30, 2020. The Plaintiff must
file her Opposition to the Defendants' anticipated Motion to
Dismiss the First Amended Complaint no later than Oct. 21, 2020.
The Defendants will file a Reply in Support of their anticipated
Motion to Dismiss the First Amended Complaint no later than Nov. 4,
2020.
A full-text copy of the Court's Aug. 19, 2020 Order is available at
https://tinyurl.com/y3jdpdrc from Leagle.com.
MICHAEL ARAM: Website Inaccessible to Blind Users, Angeles Claims
-----------------------------------------------------------------
JENISA ANGELES, on behalf of herself and all others similarly
situated, Plaintiff v. MICHAEL ARAM, INC., Defendant, Case No.
1:20-cv-08810 (S.D.N.Y., October 22, 2020) is a class action
complaint brought against the Defendant for its alleged violation
of the Americans with Disabilities Act (ADA).
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using her
computer.
The Plaintiff claims that she was denied a shopping experience
similar to that of a sighted individual when she visited the
Defendant's Website, www.michaelaram.com, on multiple occasions,
the last occurring in October of 2020, to make a purchase. The
Website allegedly lacks a variety of features and accommodations,
which effectively barred the Plaintiff from being able to determine
what specific products were offered for sale.
The Plaintiff alleges that the Defendant failed to design,
construct, maintain, and operate its website to be fully accessible
to and independently usable by blind or visually-impaired people
due to its non-compliance with the Web Content Accessibility
Guidelines 2.1, thereby engaging in acts of intentional
discrimination.
Michael Aram, Inc. is a designer company that owns and operates
www.michaelaram.com. [BN]
The Plaintiff is represented by:
David P. Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Fax: (201) 282-6501
E-mail: dforce@steinsakslegal.com
MICHIGAN: Court Denies Howell's Class Certification Bid
-------------------------------------------------------
In the case, DWAYNE E. HOWELL, Petitioner, v. RANDEE REWERTS et
al., Respondents, Case No. 1:20-cv-763 (W.D. Mich.), Judge Janet T.
Neff of the U.S. District Court for the Western District of
Michigan, Southern Division, (i) dismissed the petition for habeas
corpus for failure to exhaust state-court remedies, (ii) denied the
Petitioner's request for class certification, (iii) denied his
request for preliminary injunctive relief, and (iv) denied a
certificate of appealability.
Petitioner Howell is incarcerated with the Michigan Department of
Corrections ("MDOC") at the Carson City Correctional Facility
("DRF") in Carson City, Michigan. A Wayne County Circuit Court
jury found the Petitioner guilty of two counts of first-degree
murder and one count of breaking and entering an occupied dwelling.
On Dec. 21, 1984, the court sentenced him to life imprisonment for
the first-degree murder convictions and 10 to 15 years for breaking
and entering. The Petitioner has been discharged from the breaking
and entering sentence.
On July 21, 2020, the Petitioner filed his habeas corpus petition.
The petition alleges that the risk of infection arising from the
COVID-19 pandemic and the perpetual fear resulting from that risk
renders the Petitioner's continued imprisonment a violation of his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
He seeks placement under house arrest or in a "halfway house." The
Court considers Petitioner's request for relief as a request for
immediate release.
The Petitioner's claims regarding the constitutionality of his
custody in the prison because of risks posed by COVID-19 are
principally claims regarding the conditions of his confinement.
Such claims should be raised by a complaint for violation of 42
U.S.C. Section 1983. Accordingly, Judge Neff construes his claim
as a proper claim for habeas relief. Nonetheless, because the
Petitioner has chosen to pursue relief by way of a habeas petition,
the available relief is circumscribed. Even if there might be
conditions of confinement, short of release, that would mitigate
the risk -- and eliminate the cruel or unusual character of the
punishment -- it is not within the Court's habeas jurisdiction to
grant such relief. A claim seeking relief other than release is
properly brought under 42 U.S.C. Section 1983.
Before the Court may grant habeas relief to a state prisoner, the
prisoner must exhaust remedies available in the state courts. The
Petitioner bears the burden of showing exhaustion. He has neither
alleged that he exhausted his claims in the state courts nor has he
provided any documentation indicating that he has pursued any such
state remedies. He does contend that he has not exhausted, and
should not be required to exhaust, his claims by way of DRF's
administrative grievance procedure. Exhaustion of that remedy,
however, is not required before filing a habeas petition.
Because he has failed to exhaust his claims, his petition is
properly dismissed without prejudice, rules Judge Neff. The habeas
statute imposes a one-year statute of limitations on habeas claims.
The Petitioner's period of limitation commenced running when the
factual predicate of his claim could have been discovered through
the exercise of reasonable diligence. The Petitioner has far more
than 60 days remaining in his limitations period. If he diligently
pursues his state-court remedies and promptly returns to the Court
after the Michigan Supreme Court issues its decision, he is not in
danger of running afoul of the statute of limitations. Therefore,
a stay of these proceedings is not warranted, and Judge Neff
dismissed the petition for failure to exhaust available state-court
remedies.
The Petitioner asks the Court to certify a class of petitioners due
to the large number of prisoners affected by the Respondents
deliberate violations. Because the Petitioner is an incarcerated
pro se litigant, the Judge finds that he is not appropriate
representative of a class. Therefore, Judge Neff denied the
Petitioner's request for class certification.
As part of his petition, the Petitioner asks the Court to order
preliminary injunctive relief immediately releasing him from
custody at DRF. Because the petition is properly dismissed, the
Judge denied his request as moot.
Finally, Judge Neff finds that reasonable jurists could not find it
debatable whether the Petitioner's application should be dismissed
for lack of exhaustion. Therefore, a certificate of appealability
is denied. Moreover, for the same reasons she will deny a
certificate of appealability, the Judge also concludes that any
issue the Petitioner might raise on appeal would be frivolous.
A full-text copy of the Court's Aug. 19, 2020 Opinion is available
at https://tinyurl.com/y5oyjo34 from Leagle.com.
MICHIGAN: Philpot's Request for Class Certification Denied
----------------------------------------------------------
In the case, ISAAC PHILPOT, Petitioner, v. RANDEE REWERTS et al.,
Respondents, Case No. 1:20-cv-765 (W.D. Mich.), Judge Janet T. Neff
of the U.S. District Court for the Western District of Michigan,
Southern Division, (i) dismissed the petition for habeas corpus for
failure to exhaust state-court remedies, (ii) denied the
Petitioner's request for class certification, (iii) denied his
request for preliminary injunctive relief, and (iv) denied a
certificate of appealability.
Petitioner Philpot is incarcerated with the Michigan Department of
Corrections ("MDOC") at the Carson City Correctional Facility
("DRF") in Carson City, Michigan. Following the Plaintiff's guilty
pleas in three separate Wayne County Circuit Court criminal
proceedings, on Dec. 16, 1977, the court sentenced him to life
imprisonment for three counts of armed robbery, one count of
first-degree criminal sexual conduct, one count of assault with
intent to commit murder, and one count of second-degree murder.
On July 21, 2020, the Petitioner filed his habeas corpus petition.
The petition alleges that the risk of infection arising from the
COVID-19 pandemic and the perpetual fear resulting from that risk
renders the Petitioner's continued imprisonment a violation of his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
He seeks placement under house arrest or in a "halfway house." The
Court considers Petitioner's request for relief as a request for
immediate release.
The Petitioner's claims regarding the constitutionality of his
custody in the prison because of risks posed by COVID-19 are
principally claims regarding the conditions of his confinement.
Such claims should be raised by a complaint for violation of 42
U.S.C. Section 1983. Accordingly, Judge Neff construes his claim
as a proper claim for habeas relief. Nonetheless, because the
Petitioner has chosen to pursue relief by way of a habeas petition,
the available relief is circumscribed. Even if there might be
conditions of confinement, short of release, that would mitigate
the risk -- and eliminate the cruel or unusual character of the
punishment -- it is not within the Court's habeas jurisdiction to
grant such relief. A claim seeking relief other than release is
properly brought under 42 U.S.C. Section 1983.
Before the Court may grant habeas relief to a state prisoner, the
prisoner must exhaust remedies available in the state courts. The
Petitioner bears the burden of showing exhaustion. He has neither
alleged that he exhausted his claims in the state courts nor has he
provided any documentation indicating that he has pursued any such
state remedies. He does contend that he has not exhausted, and
should not be required to exhaust, his claims by way of DRF's
administrative grievance procedure. Exhaustion of that remedy,
however, is not required before filing a habeas petition.
Because he has failed to exhaust his claims, his petition is
properly dismissed without prejudice, rules Judge Neff. The habeas
statute imposes a one-year statute of limitations on habeas claims.
The Petitioner's period of limitation commenced running when the
factual predicate of his claim could have been discovered through
the exercise of reasonable diligence. The Petitioner has far more
than 60 days remaining in his limitations period. If he diligently
pursues his state-court remedies and promptly returns to the Court
after the Michigan Supreme Court issues its decision, he is not in
danger of running afoul of the statute of limitations. Therefore,
a stay of these proceedings is not warranted, and the Judge
dismissed the petition for failure to exhaust available state-court
remedies.
The Petitioner asks the Court to certify a class of petitioners due
to the large number of prisoners affected by the Respondents
deliberate violations. Because the Petitioner is an incarcerated
pro se litigant, the Judge finds that he is not appropriate
representative of a class. Therefore, Judge Neff denied the
Petitioner's request for class certification.
As part of his petition, the Petitioner asks the Court to order
preliminary injunctive relief immediately releasing him from
custody at DRF. Because the petition is properly dismissed, the
Judge denied his request as moot.
Finally, Judge Neff finds that reasonable jurists could not find it
debatable whether the Petitioner's application should be dismissed
for lack of exhaustion. Therefore, a certificate of appealability
is denied. Moreover, for the same reasons she will deny a
certificate of appealability, the Judge also concludes that any
issue the Petitioner might raise on appeal would be frivolous.
A full-text copy of the Court's Aug. 19, 2020 Opinion is available
at https://tinyurl.com/y5m7qzbn from Leagle.com.
MICHIGAN: Plair's Class Certification Bid Denied
------------------------------------------------
In the case, OLIVER PLAIR, Petitioner, v. RANDEE REWERTS et al.,
Respondents, Case No. 1:20-cv-761 (W.D. Mich.), Judge Janet T. Neff
of the U.S. District Court for the Western District of Michigan,
Southern Division, (i) dismissed the petition for habeas corpus for
failure to exhaust state-court remedies, (ii) denied the
Petitioner's request for class certification, (iii) denied his
request for preliminary injunctive relief, and (iv) denied a
certificate of appealability.
Petitioner Plair is incarcerated with the Michigan Department of
Corrections ("MDOC") at the Carson City Correctional Facility
("DRF") in Carson City, Michigan. A Genessee County Circuit Court
jury found the Petitioner guilty of kidnapping, first-degree
criminal sexual conduct ("CSC-I"), and armed robbery. On Aug. 9,
1991, the court sentenced Petitioner to 50 to 75 years'
imprisonment for kidnapping and CSC-I and 10 to 20 years for armed
robbery. While the Petitioner was in prison, he was convicted of
two counts of assaulting a prison employee. He received sentences
of 3 to 15 years for each count. According to the MDOC, as a
result of these sentences, the Petitioner has an earliest release
date of March 7, 2034, and a maximum discharge date of Sept. 15,
2063.
On July 21, 2020, the Petitioner filed his habeas corpus petition.
The petition alleges that the risk of infection arising from the
COVID-19 pandemic and the perpetual fear resulting from that risk
renders the Petitioner's continued imprisonment a violation of his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
He seeks placement under house arrest or in a "halfway house." The
Court considers Petitioner's request for relief as a request for
immediate release.
The Petitioner's claims regarding the constitutionality of his
custody in the prison because of risks posed by COVID-19 are
principally claims regarding the conditions of his confinement.
Such claims should be raised by a complaint for violation of 42
U.S.C. Section 1983. Accordingly, Judge Neff construes his claim
as a proper claim for habeas relief. Nonetheless, because the
Petitioner has chosen to pursue relief by way of a habeas petition,
the available relief is circumscribed. Even if there might be
conditions of confinement, short of release, that would mitigate
the risk -- and eliminate the cruel or unusual character of the
punishment -- it is not within the Court's habeas jurisdiction to
grant such relief. A claim seeking relief other than release is
properly brought under 42 U.S.C. Section 1983.
Before the Court may grant habeas relief to a state prisoner, the
prisoner must exhaust remedies available in the state courts. The
Petitioner bears the burden of showing exhaustion. He has neither
alleged that he exhausted his claims in the state courts nor has he
provided any documentation indicating that he has pursued any such
state remedies. He does contend that he has not exhausted, and
should not be required to exhaust, his claims by way of DRF's
administrative grievance procedure. Exhaustion of that remedy,
however, is not required before filing a habeas petition.
Because he has failed to exhaust his claims, his petition is
properly dismissed without prejudice, rules Judge Neff. The habeas
statute imposes a one-year statute of limitations on habeas claims.
The Petitioner's period of limitation commenced running when the
factual predicate of his claim could have been discovered through
the exercise of reasonable diligence. The Petitioner has far more
than 60 days remaining in his limitations period. If he diligently
pursues his state-court remedies and promptly returns to the Court
after the Michigan Supreme Court issues its decision, he is not in
danger of running afoul of the statute of limitations. Therefore,
a stay of these proceedings is not warranted, and the Judge
dismissed the petition for failure to exhaust available state-court
remedies.
The Petitioner asks the Court to certify a class of petitioners due
to the large number of prisoners affected by the Respondents
deliberate violations. Because the Petitioner is an incarcerated
pro se litigant, Judge Neff finds that he is not appropriate
representative of a class. Therefore, the Petitioner's request for
class certification is denied.
As part of his petition, the Petitioner asks the Court to order
preliminary injunctive relief immediately releasing him from
custody at DRF. Because the petition is properly dismissed, the
Judge denied his request as moot.
Finally, the Judge Neff finds that reasonable jurists could not
find it debatable whether the Petitioner's application should be
dismissed for lack of exhaustion. Therefore, a certificate of
appealability is denied. Moreover, for the same reasons she will
deny a certificate of appealability, the Judge also concludes that
any issue the Petitioner might raise on appeal would be frivolous.
A full-text copy of the Court's Aug. 19, 2020 Opinion is available
at https://tinyurl.com/y49px8dl from Leagle.com.
MICROSOFT CORP: Settlement in Canadian Class Suits Wins Final OK
----------------------------------------------------------------
Microsoft Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 30, 2020, that a final settlement
and form of notice have been approved by the courts in British
Columbia, Ontario, and Quebec, in Canada.
Antitrust and unfair competition class action lawsuits were filed
against the company in British Columbia, Ontario, and Quebec,
Canada. All three have been certified on behalf of Canadian
indirect purchasers who acquired licenses for Microsoft operating
system software and/or productivity application software between
1998 and 2010.
The trial of the British Columbia action commenced in May 2016.
Following a mediation, the parties agreed to a global settlement of
all three Canadian actions, and submitted the proposed settlement
agreement to the courts in all three jurisdictions for approval.
The final settlement and form of notice have been approved by the
courts in British Columbia, Ontario, and Quebec.
Microsoft said, "The ten month claims period will commence upon
distribution of notice to the class, which we anticipate to occur
in the second quarter of fiscal year 2021."
Microsoft Corporation develops, licenses, and supports software,
services, devices, and solutions worldwide. The company was founded
in 1975 and is headquartered in Redmond, Washington.
MYOS RENS: Directors Breached Fiduciary Duties, Vigil Suit Claims
-----------------------------------------------------------------
LOUIS VIGIL, On Behalf of Himself and All Others Similarly Situated
v. JOSEPH MANNELLO, DR. ROBERT HARIRI, DR. LOUIS ARONNE,
CHRISTOPHER PECHOCK, VICTOR MANDEL, ERIC ZALTAS, CHRISTOPHER DEWEY,
ANDREW PONTE, and REN REN, Case No. A-20-822848-C (Nev. Dist. Ct.,
Clark Cty., Oct. 12, 2020), is a stockholder class action complaint
brought on behalf of the Plaintiff and the holders of the common
stock of MYOS RENS Technology Inc. against the members of the Board
of Directors of MYOS for breaching their fiduciary duties.
On June 30, 2020, MYOS announced that it had entered into a
definitive merger agreement with MedAvail, Inc. The Merger
Agreement is the result of the Board's -- and, specifically, CEO
and director defendant Joseph Mannello's -- desire to
simultaneously rid themselves of Ren Ren, the Company's "Global
Chairman" with whom they had been embroiled in ongoing litigation,
and take MYOS private.
According to the complaint, in order to end this litigation, see
Ren Ren on his way, and take the Company private, the Board
concocted an extremely unorthodox Merger Agreement that will result
in two distinct transactions, pursuant to which (1) the current
business of MYOS -- all that MYOS essentially is at this time -- is
being spun out into a new company that will be owned by all of MYOS
's current shareholders except Ren Ren; and (2) MYOS is essentially
selling its public listing on the NASDAQ to MedAvail in exchange
for $2 million in cash and a $3 million promissory note -- which it
will apparently use to pay off Ren Ren so that he does not have an
interest in the spinoff -- and a nominal 3.5% interest in the
post-merger company.
The Plaintiff contends that the Proposed Transaction is a reverse
merger whereby MYOS is selling to MedAvail its public listing on
the NASDAQ for $2 million in cash, the $3 million Promissory Note,
and a 3.5% interest in the Post-Merger Company, and is no more than
a vehicle through which the Board -- and specifically MYOS' CEO and
second largest shareholder, defendant Mannello -- can liberate
themselves from Ren Ren. Accordingly, the process leading to the
Proposed Transaction appears to be plagued by conflicts of
interest, the Plaintiff adds.
In order to convince MYOS shareholders to vote in favor of the
Proposed Transaction, on September 2, 2020, the Company filed a
preliminary Form S-4 Registration Statement with the Securities and
Exchange Commission. The Proxy provides a woefully inadequate
account of the process and negotiations that resulted in the
Proposed Transaction and omits material information necessary for
Plaintiff and the other public shareholders of MYOS to cast an
informed vote in connection with the Proposed Transaction, all in
breach of the Defendants' fiduciary duties, the Plaintiff alleges.
The Plaintiff seeks an order enjoining the November 16, 2020
special meeting of Company shareholders to vote on a Proposed
Transaction unless and until the Board remedies the material Proxy
disclosure deficiencies, and, in the event the Proposed Transaction
is consummated, damages incurred as a result of Defendants'
breaches of fiduciary duty.
The Plaintiff is/was a continuous stockholder of MYOS.
MYOS RENS Technology Inc. operates as a biopharmaceutical company.
The Company discovers, develops, and commercializes therapeutics
and nutritional products that improves muscle health and function
essential to the management of sarcopenia, cachexia, and chronic
and acute muscle diseases.
The Defendants are officers and directors of MYOS.[BN]
The Plaintiff is represented by:
G. Mark Albright, Esq.
Daniel R. Ormsby, Esq.
Hayden R. D. Smith, Esq.
ALBRIGHT, STODDARD, WARNICK & ALBRIGHT
801 South Rancho Drive, Suite D-4
Las Vegas, NE 89106
Telephone: (702) 384 7111
Facsimile: (702) 384 0605
E-mail: gma@albrightstoddard.com
dormsby@albrightstoddard.com
hsmithAalbrightstoddard.com
- and -
Michael J. Palestina, Esq.
KAHN SWICK & FOTI, LLC
100 Poydras Street, Suite 3200
New Orleans, LA 70163
Telephone: (504) 455-1400
Facsimile: (504) 455-1498
- and -
Juan E. Monteverde, Esq.
MONTEVERDE & ASSOCIATES PC
The Empire State Building
350 Fifth Avenue, Suite 4405
New York, NY 10118
Telephone: (212) 971-1341
Facsimile: (212) 202-7880
E-mail: jmonteverde@monteverdelaw.com
NAHAL REALTY: Rosales Sues Over Unpaid Minimum and Overtime Wages
-----------------------------------------------------------------
Arnulfo Rosales, individually and on behalf of others similarly
situated v. NAHAL REALTY CORP., HABIB FARZAMIFAR, and BAKHTIAR
BAKHTIARI, Case No. 1:20-cv-08634 (S.D.N.Y., Oct. 16, 2020), is
brought for unpaid minimum and overtime wages pursuant to the Fair
Labor Standards Act of 1938, and for violations of the N.Y. Labor
Law, including applicable liquidated damages, interest, attorneys'
fees, and costs.
The complaint alleges that the Plaintiff worked for the Defendants
without appropriate minimum wage compensation for the hours that he
worked. The Defendants failed to maintain accurate recordkeeping of
the hours worked and failed to pay the Plaintiff appropriately for
any hours worked at the straight rate of pay. Furthermore, the
Defendants repeatedly failed to pay the Plaintiff's wages on a
timely basis. The Defendants also maintained a policy and practice
of requiring the Plaintiff and other employees to work without
providing the minimum wage compensation required by federal and
state law and regulations, says the complaint.
The Plaintiff Rosales was employed as a porter.
The Defendants own, operate, or control an apartment building
located in New York City.[BN]
The Plaintiffs are represented by:
Michael A. Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 2540
New York, NY 10165
Phone: (212) 317-1200
Facsimile: (212) 317-1620
NESTLE WATERS: Court Narrows Claims in Patane Suit
--------------------------------------------------
In the case, MARK J. PATANE et al., Plaintiffs, v. NESTLE WATERS
NORTH AMERICA, INC., Defendant, Case No. 3:17-cv-01381 (JAM) (D.
Conn.), Judge Jeffrey Walker Meyer of the U.S. District Court for
the District of Connecticut granted in part and denied in part
Nestle's motion for summary judgment.
The Plaintiffs have filed the class action lawsuit alleging that
Defendant Nestle fraudulently labels and sells its Poland Spring
bottled water product as "spring water" when in fact it is not
spring water as defined by law.
Nestle labels and sells its Poland Spring water products as "spring
water" in retail, home, and office markets. The Plaintiffs have
purchased Poland Spring water since 2003 and reside in Connecticut,
Maine, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, and Rhode Island. Nestle has packaged its water at
bottling facilities in Poland Spring and Hollis, Maine, and
Framingham, Massachusetts, since 2003, and since 2009 has also used
a fourth facility in Kingfield, Maine. From 2003 to 2017, the
water packaged at these four facilities came from eight sites in
Maine.
In 2018, Judge Meyer dismissed the Plaintiffs' initial complaint
because their state law claims as framed were all preempted by the
federal Food, Drug, and Cosmetic Act. The Plaintiffs then filed an
amended complaint on behalf of consumers in the eight states listed
as well as Vermont, alleging state common law claims for fraud and
breach of contract in addition to state statutory claims for
consumer fraud and unfair trade practices. The Judge dismissed the
Vermont law claims and allowed the rest to proceed. The Plaintiffs
seek, among other remedies, money damages and a permanent
injunction enjoining Nestlé from selling its Poland Spring water
as "spring water."
Nestle has now moved for summary judgment on all of the Plaintiffs'
claims arising under the laws of Connecticut, Maine, Massachusetts,
New Hampshire, New Jersey, New York, Pennsylvania, and Rhode Island
on three grounds. First, it argues that there is no private right
of action under applicable state law for the claimed violations by
Nestlé of state law "spring water" standards. Second, Nestle
argues that applicable state law recognizes a safe harbor defense
to foreclose liability against it in light of alleged state
regulatory approvals of its "spring water" for sale. Third, it
argues that the lawsuit functions as an impermissible collateral
attack on the administrative approvals of state regulators for the
sale of its product as "spring water."
Based on his state-by-state evaluation of these arguments, Judge
Meyer generally concludes that the lack of a specific right of
action for the violation of a state law spring water standard does
not foreclose the underlying conduct from being actionable under
separate state statutes that prohibit unfair and deceptive trade
practices or from being actionable to the extent that they amount
to fraud and breach of contract. He further concludes -- with the
exception of Rhode Island -- that at least a genuine issue of fact
remains whether Nestle is entitled to the benefit of any regulatory
safe harbor exemptions or whether the Plaintiffs' claims amount to
an impermissible collateral attack on state-issued licenses or
permits.
Responding to Nestle's argument that that it is entitled to Rhode
Island Deceptive Trade Practices Act ("RIDTPA")'s safe harbor
exemption, the Plaintiffs rely on a single case noting in dicta
that a statute requiring debt collectors to register with an agency
may not be sufficient regulation or monitoring under the exemption
but declining to decide whether the exemption applied. In the
instant case, not only was Nestle subject to licensure, but the
misconduct alleged by the Plaintiffs risks it having its license
suspended or revoked.
Accordingly, because RIDTPA's safe harbor exemption is
significantly broader in scope than the safe harbor exemption under
the laws of the other states at issue in the case and because
Nestle has shown that it was subject to monitoring in relevant
respects by the Rhode Island Department of Health, Nestle has shown
that it qualifies for the RIDTPA safe harbor exemption, and Judge
Meyer grants Nestle's motion for summary judgment with respect to
the Plaintiffs' RIDTPA claim.
Judge Meyer, therefore, granted in part and denied in part the
motion for summary judgment. It is granted as to Count VIII (Rhode
Island Deceptive Trade Practices Act claim), and denied as to all
other claims.
A full-text copy of the Court's Aug. 12, 2020 Order is available at
https://tinyurl.com/y2owas3d from Leagle.com.
NEVADA: Appeals from Writ of Mandamus Ruling in Payne Dismissed
---------------------------------------------------------------
The Supreme Court of Nevada dismissed the appeal and cross-appeal
from a July 22, 2020 order of the district court granting in part
and denying in part a petition for a writ of mandamus in an
unemployment benefits matter in the case, AMETHYST PAYNE; IRIS
PODESTAMIRELES; ANTHONY NAPOLITANO; ISAIAH PAVIA-CRUZ; VICTORIA
WAKED; CHARLES PLOSKI; DARIUSH NAIMI; TABITHA ASARE; SCOTT HOWARD;
RALPH WYNCOOP; ELAINA ABING; AND WILLIAM TURNLEY, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Appellants/Cross-Respondents, v. STATE OF NEVADA, DEPARTMENT OF
EMPLOYMENT, TRAINING AND REHABILITATION (DETR); HEATHER KORBULIC IN
HER OFFICIAL CAPACITY ONLY AS NEVADA DIRECTOR OF EMPLOYMENT,
TRAINING AND REHABILITATION; DENNIS PEREA IN HIS OFFICIAL CAPACITY
AS DEPUTY DIRECTOR OF DETR; AND KIMBERLY GAA, IN HER OFFICIAL
CAPACITY ONLY AS THE ADMINISTRATOR FOR THE EMPLOYMENT SECURITY
DIVISION (ESD), Respondents/Cross-Appellants, Case No. 81582
(Nev.).
Specifically, in the July 22 order, the district court described
generally who should be considered a covered individual for
purposes of Pandemic Unemployment Assistance and ordered that
payments to individuals whose payments had begun and then stopped
must be restarted by July 28, 2020. In the order, a hearing for
July 30, 2020, to resolve the claims of the earliest filers, and
address the purported non-eligibility of people who filed claims
before the first case of COVID-19 was confirmed in Nevada, was
scheduled. All other forms of relief requested were "denied with
right to renew" and reserved the right "to modify sua sponte the
relief ordered" as a result of information provided at the July 30
hearing.
A review of the documents before it revealed a potential
jurisdictional defect, so the Supreme Court of Nevada directed the
parties to show cause why the appeal and cross-appeal should not be
dismissed for lack of jurisdiction. In particular, it noted, the
district court's order left undecided certain issues pending
further proceedings, including concerns regarding claimants who
were denied benefits because they ostensibly were eligible for
benefits under a program different from that for which they
applied, which is one of the issues appellants raise on appeal. The
Nevada Supreme Court also pointed out that the district court
reserved the right to modify its order as result of those further
proceedings, which, it explained, indicated that the appealed order
did not finally resolve the entire matter before the district
court.
The parties timely responded to the show cause order, arguing that
the Nevada Supreme Court has jurisdiction for a number of reasons.
First, they assert that the issues the July 22 order reserved for
further review are not properly considered part of the relief
requested in the mandamus petition, but were intertwined with that
requested relief such that the order, in denying "all other forms
of relief," should be treated as finally resolving all claims and
issues. However, it appears that the other forms of relief did not
include the relief requested with respect to the three issues
preserved for further proceedings on July 30, which were argued by
the parties and considered by the district court whether or not
they were formally included in the writ petition.
And even if the Nevada Supreme Court read the July 22 order as
equating to a dismissal without prejudice, as the Appellants
suggest, orders dismissing without prejudice do not necessarily
finally resolve the issues before the Court. Instead, a final
order is needed, and thus, the fact that the district court did not
issue a modification order resulting from the July 30 hearing does
nothing to confirm jurisdiction in the Nevada Supreme Court.
Indeed, the district court apparently did not resolve the pending
issues at the July 30 hearing but continued the matter to an Aug.
20, 2020, hearing.
Moreover, the Appellants state that, during this time, they also
renewed their motion for relief. Thus, the July 22 order
identified in the notices of appeal and cross-appeal did not
finally resolve all issues before the district court. As appeals
may be properly taken from orders granting or denying writ
petitions only when the order finally resolves the matter, the
Nevada Supreme Court lacks jurisdiction over the appeal and
cross-appeal from the July 22 order. And although the Appellants
argue that, at the August 20 hearing, the district court clarified
that it was fully resolving the matter and also indicated that it
would certify the July 22 order as final under NRCP 54(b), no
written order doing either has been submitted to the Nevada Supreme
Court or identified in a notice of appeal.
Therefore, the Nevada Supreme Court concludes that it lacks
jurisdiction. Accordingly, it dismissed the appeal and
cross-appeal.
A full-text copy of the Nevada Supreme Courts Aug. 26, 2020 Order
is available at https://tinyurl.com/y2qqwb25 from Leagle.com.
NEW YORK CITY TRANSIT: Robinson Suit Wins Class Status
------------------------------------------------------
In the class action lawsuit captioned as NATHANIEL ROBINSON and
DAVID EVANS, on behalf of themselves and all others similarly
situated, v. NEW YORK CITY TRANSIT AUTHORITY; PATRICK J. FOYE, in
his official capacity as Acting Chairman of the New York City
Transit Authority; and SARAH E. FEINBERG, in her official capacity
as Interim President of the New York City Transit Authority, Case
No. 1:19-cv-01404-AT-BCM (S.D.N.Y.), the Hon. Judge Analisa Torres
entered an order:
1. adopting Judge Moses' report and recommendation (R&R) in
its entirety, and granting the Plaintiffs' motion for
class certification; and
2. substituting Sarah E. Feinberg, the interim president of
the New York City Transit Authority (NYCTA) as a party in
this action because Andy Burford is no longer the
president of the NYCTA.
The Plaintiffs moved for class certification of their claims
against NYCTA, its president Andy Byford, and its chairman Patrick
Foye, related to the Defendants' practices for securing default
judgments against individuals accused of violating transit
regulations. The Court referred the motion to the Honorable Barbara
C. Moses for a Report & Recommendation.
On August 31, 2020, Judge Moses issued a R&R recommending that the
Plaintiffs' motion be granted. The Court has reviewed de novo those
portions of the R&R to which Plaintiff properly objected and has
reviewed the remainder of the R&R for clear error.
The Court held that certification under Fed.R.Civ.P. 23(b) is
appropriate even where the relief to each class member is not
"identical" -- the relief need only be "beneficial." Sykes, 780
F.3d at 97. The Plaintiffs' requested relief meet this standard,
the Court said. For example, the Plaintiffs seek an injunction
"barring TAB from enforcing default judgments until it develops
procedures that comply with the Due Process Clause." Because every
member of the proposed class has or will have a default judgment
entered against them, the Plaintiffs' requested relief will benefit
every member of the proposed class. The Court agrees with Judge
Moses that certification under Rule 23(b)(2) is appropriate.
The NYCTA operates a large public transit system and has a Transit
Adjudication Bureau that adjudicates violations of its rules, the
"Rules Governing the Conduct and Safety of the Public in the Use of
the Facilities of the Authority.
A copy of the Court's Order is available from PacerMonitor.com at
https://bit.ly/3nlKK06 at no extra charge.[CC]
NEW YORK: M.G. Gets OK to File Second Amended Complaint
-------------------------------------------------------
In the case, M.G., et al., Plaintiffs, v. ANDREW CUOMO, et al.,
Defendants, Case No. 19 CV 639 (CS) (LMS) (S.D. N.Y.), Magistrate
Judge Lisa Margaret Smith of the U.S. District Court for the
Southern District of New York granted the Plaintiffs' motion for
leave to file a Second Amended Complaint.
The Plaintiffs commenced the action on Jan. 23, 2019, by filing
their original Complaint naming M.G., P.C., C.J., M.J., J.R., and
D.R. as Plaintiffs individually and on behalf of other similarly
situated individuals. The putative class action asserted claims by
a General Class and an RTF Subclass, which alleged that inmates
with serious mental illness ("SMI") were being held in the custody
of the New York State Department of Corrections and Community
Supervision past their lawful release dates due to the Defendants'
failure to provide appropriate community-based housing for these
inmates on their release dates in violation of Title 11 of the
Americans with Disabilities Act ("ADA") and Section 504 of the
Rehabilitation Act.
The Plaintiffs sought declaratory and injunctive relief, with the
primary focus on the Defendants developing and implementing an
effective plan for providing care and treatment in the most
integrated setting appropriate to the needs of SMI individuals who
would qualify for and desire mental health services in an
integrated setting and promptly making available sufficient
community-based care and treatment opportunities, including
OMH-funded mental health housing, to ensure that the most
integrated appropriate care and treatment is provided without undue
delay to those qualified individuals being discharged from state
prison who want community-based care and treatment.
On June 3, 2019, the Plaintiffs filed its First Amended Complaint.
The FAC elaborates on the facts alleged in the original complaint
and did not change the parties or the causes of action. The FAC
was meant to address some of the issues raised by the Defendants
about the original complaint. During the same conference, Judge
Seibel set a briefing schedule for the Defendants' anticipated
motion to dismiss the FAC. The matter was set to be fully briefed
by Aug. 30, 2019. Subsequently, Judge Seibel referred the matter
to Magistrate Judge Smith for general pretrial supervision.
As the result of delays in producing discovery, the Court
repeatedly extended the briefing deadlines for the Defendants'
motion to dismiss. Throughout the briefing period and pendency of
the Court's decision on the Defendants' motion, the parties engaged
in document discovery supervised by the undersigned via monthly
status conferences. Four days ahead of the conference scheduled
for Aug. 14, 2020, the Plaintiffs raised by letter the intention to
file a SAC. In lieu of formal briefing, the Magistrate Judge
deemed the Plaintiffs' letter a motion to amend and set a schedule
for letter briefing. The letter briefing on the motion to amend is
now fully submitted. The Magistrate heard argument from the
parties at a phone conference on Aug. 25, 2020. The Defendants'
motion to dismiss the FAC is still pending.
The proposed SAC adds three named Plaintiffs, S.D., W.P., and D.H.,
who would be party representatives for the proposed Discharge
Class. The class includes individuals who were not held past their
lawful release dates but were discharged to shelters or similar
settings where they did not receive the services for which they
were deemed eligible by OMH. To that end, the SAC includes
allegations related to the new Plaintiffs and the Discharge Class,
and it includes two additional causes of action for the Defendants'
violation of Title II of the ADA and Section 504 of the
Rehabilitation Act as against the new Plaintiffs and the Discharge
Class.
In addition, the Plaintiffs have updated the facts to reflect
changes with the previously named Plaintiffs (e.g., most of the
previously named Plaintiffs have been released from prison since
the filing of the FAC), and the Plaintiffs have added allegations
throughout the SAC that bolster their claim. The prayer for relief
is unchanged but for the addition of the Discharge Class as one of
the classes for which the Plaintiffs seek class certification.
The Defendants argue that the Plaintiffs' amendments effectively
constitute an entirely new lawsuit. They that Federal Rule of
Civil Procedure 16 governs the Plaintiffs' motion to amend, which
requires a showing of good cause. They assert that the Plaintiffs
cannot demonstrate good cause because they did not diligently seek
leave to amend after becoming aware of the proposed additional
claims. The Defendants further argue that the claims of the
proposed Discharge Class are futile and allowing the proposed
amendments would cause undue prejudice to them.
Magistrate Judge Smith agrees with the Plaintiffs that since a
scheduling order has not been issued in the case, the rule
governing their motion is Federal Rule of Civil Procedure 15.
Having supervised the discovery that has taken place thus far, she
is aware of the burden that the Defendants have experienced with
respect to its production obligations. It is concerning that
potentially hundreds of thousands of documents would need to be
re-reviewed to determine if they are relevant to the proposed new
claims, meaning an increase in effort, cost, and potential delay.
However, it is difficult to imagine an amendment to pleadings under
Rule 15(a) that would not create some increased work to the
opposing party, and if the Plaintiffs were to bring the claims of
the Discharge Class in a separate lawsuit, the Defendants would
face the same burden as it does now.
Magistrate Judge Smith recognizes that the addition of the
Discharge Class will involve more discovery, but the need to
conduct the additional discovery is not a sufficient justification
for denying leave to amend. The matter is still in the pleading
stage and the parties are still engaging in paper discovery with no
deadlines set for depositions; in other words, the matter is far
from the eve of trial. Moreover, the Plaintiffs contend that it
has already started seeking discovery related to the Discharge
Class and that much of what has already been produced is relevant
to the Discharge Class. Therefore, the Magistrate Judge finds that
the prejudice that the Defendants may endure is not so significant
as to require that the Court denies the Plaintiffs the opportunity
to test their claims on the merits.
As to futility, since there is a pending motion to dismiss before
Judge Seibel, Magistrate Judge Smith thinks it inappropriate to
address the merits of the Plaintiffs' claims on the motion to
amend. Contrary to the Plaintiffs' assertion, the new claims do
appear to change the tenor of the case. Judicial economy is better
served if the same judge determines whether the Plaintiffs' claims,
both new and old, would survive a motion to dismiss. Based on
representations by the parties, it may be that determination of the
Olmstead issues is better sought by motion for summary judgment
where material outside the pleadings may be consulted.
For these reasons, Magistrate Judge Smith granted the Plaintiffs'
motion to amend their complaint. The Clerk of the Court was
directed to terminate the motion at ECF No. 125.
A full-text copy of the Court's Aug. 26, 2020 Decision & Order is
available at https://tinyurl.com/y3j5tcqa from Leagle.com.
NIKOLA CORP: Faces Malo Suit Over Inflated Common Stock Price
-------------------------------------------------------------
DOUGLAS MALO, individually, and on behalf of all others similarly
situated, v. NIKOLA CORPORATION DBA NIKOLA MOTOR COMPANY, TREVOR
MILTON and DOES 1-10, inclusive, Case No. 5:20-cv-02168 (C.D. Cal.,
Oct. 16, 2020), is a securities fraud class action on behalf of all
persons who purchased the common stock of Nikola between June 4,
2020 and October 06, 2020, inclusive.
This action is brought against the Defendants for violations of the
Securities Exchange Act of 1934. The Plaintiff also brings this
class action complaint against the Defendant for violation of
Unfair Competition Law, and to obtain redress for a California
class of investors who changed position, within the applicable
statute of limitations period.
The Defendants' fraudulent scheme and course of business that
operated as a fraud or deceit on purchasers of Nikola's common
stock was a success, as it deceived the investing public regarding
Nikola's prospects and business; artificially inflated the price of
Nikola's common stock; and caused the plaintiff and other members
of the Class to purchase Nikola common stock at inflated prices,
says the complaint.
The Plaintiff contends that when purchasing the Defendants' common
stock, he relied on the Defendants' statements about the nature and
quality of the trucks in deciding to purchase stocks of the
Defendants' company. He felt assured by the Defendants' that the
trucks would be as represented by the Defendants, namely that it
was drivable. He would not have purchased the Defendants' common
stock if he had known that the Defendants' trucks were of a nature
and quality other than what the Defendants represented, he adds.
The Plaintiff is a citizen and resident of the State of California,
County of San Bernardino, who purchased the common stock of Nikola
during the Class Period and was damaged as the result of
Defendants' alleged wrongdoing.
Nikola is an American company that has announced a number of
concept zero-emissions vehicles since 2016 and has indicated plans
to produce some of them in the future. The company is based in
Phoenix, Arizona, where its research and development facility is
located. Mr. Trevor Milton is the Company's Chairman of the Board,
Chief Executive Officer and President.[BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
Thomas E. Wheeler, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St. Suite 780,
Woodland Hills, CA 91367
Telephone: (877) 206-4741
Facsimile: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
twheeler@toddflaw.com
- and -
Steven S. Soliman, Esq.
THE SOLIMAN FIRM, P.L.C.
thesolimanfirm.com
245 Fischer Ave D-1
Costa Mesa, CA 92626
Telephone: (714) 970-4770
E-mail: ssoliman@thesolimanfirm.com
NORTHERN NATURAL: De Leon Seeks Conditional Class Certification
---------------------------------------------------------------
In the class action lawsuit captioned as JESSIE DE LEON,
Individually and for Others Similarly Situated, v. NORTHERN NATURAL
GAS COMPANY, Case No. 7:20-cv-00179 (W.D. Tex., July 24, 2020), the
Plaintiff asks the Court for an order granting conditional
certification of the following Fair Labor Standards Act class:
"all inspectors of Northern Natural Gas who were paid a
day-rate with no overtime in the past 3 years (Putative
Class Members)"
The Plaintiff contends the Court should conditionally certify this
class because he has more than satisfied his minimal burden of
demonstrating that he and NNG's other inspectors are similarly
situated, as they performed similar job duties and were all
subjected to NNG's uniform day rate policy that deprived them of
overtime compensation in violation of the FLSA.
The Plaintiff alleges that NNG employs inspectors on a day rate
basis. For example, he worked for Northern from July 2017 until
April 2018. Similarly, Opt-in Plaintiff Anthony Hernandez
(Hernandez) worked for NNG as a utility inspector from July 2018
until December 2018. During this period, NNG paid Plaintiffs and
the Putative Class Members a day rate with no overtime
compensation.
NNG -- https://www.northernnaturalgas.com/ -- is a subsidiary of
Berkshire Hathaway Energy. NNG owns and operates the largest
interstate natural gas pipeline system in the United States. NNG's
pipeline system stretches across 11 states, from the Permian Basin
to Michigan's Upper Peninsula. It provides natural gas
transportation and storage services to 82 utilities and numerous
producers, energy marketing companies and industrial end users.
A copy of the Plaintiff's motion for conditional certification
dated Sept. 29, 2020 is available from PacerMonitor.com at
https://bit.ly/3d9Awvd at no extra charge.[CC]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 325-1100
Facsimile: (713) 325-3300
E-mail: adunlap@mybackwages.com
mjosephson@mybackwages.com
rschreiber@mybackwages.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
NS8: Laid Off Workers Sue Citing Lack of Advance Notice
-------------------------------------------------------
Jonathan Ng at Las Vegas Review-Journal reports that former
employees that were laid off from NS8, the Las Vegas-based
cyberfraud prevention startup embroiled in a federal investigation,
have filed class action lawsuits against the company.
Joshua Hoover, a former NS8 employee, filed the class action suit
in Nevada District Court earlier, days after being let go.
The lawsuit alleges that NS8 did not comply with the federal Worker
Adjustment and Retraining Notification Act, which is meant to
ensure employees have 60 days notice before significant layoffs so
they have time to find work elsewhere.
Genevieve Haldeman, a spokeswoman for NS8, said the company does
not comment on pending litigation.
According to the U.S. Department of Labor's website, a 60-day
notice is required if a company with at least 100 full-time
employees plans to lay off at least 50 people at a single site.
Employers who do not comply with the WARN Act are liable to pay
each affected employee an amount equal to back pay and benefits for
the violation period, which can last up to 60 days.
In NS8's Sept. 10 WARN Act notice to employees, the company said,
"While we would have preferred to give you more advance notice of
this decision, we were not in a position, 60 days ago, to
anticipate the sudden change to our business circumstances, nor the
decisions that were necessitated by them."
Employees were laid off the next day.
Hoover's attornery, Kaine Messer of Las Vegas-based Gabroy Law
Offices, told the Review-Journal that the lawsuit was filed to
protect the communities where a company operates, "specifically
because when a company does have these mass layoffs, the community
itself is put in danger of harm."
There are exceptions to the WARN Act, though, according to the
DOL's website: "WARN makes certain exceptions to the requirements
when layoffs occur due to unforeseeable business circumstances,
faltering companies, and natural disasters."
Messer said that "what we do take issue with is not adhering to the
law, particularly when the exceptions don't apply, and it's our
position that there are no exceptions that apply to the current
situation."
Federal agents arrested NS8 co-founder and former CEO Adam Rogas.
The Securities and Exchange Commission charged Rogas with
defrauding investors, alleging he falsified bank statements to
obtain over $123 million in financing for his company, of which he
personally received approximately $17.5 million.
Rogas resigned Sept. 1 soon after an employee in NS8's finance
department discovered the true balance of funds in the company's
revenue account and the transactions were uncovered.
Another NS8 employee filed a separate class action suit in Delaware
District Court.
Contact Jonathan Ng at jng@reviewjournal.com. Follow @ByJonathanNg
on Twitter. [GN]
O'FALLON, IL: Ill. App. Flips Summary Judgment in Saladrigas Suit
-----------------------------------------------------------------
In the case, ROGELIO SALADRIGAS, on Behalf of Himself and All
Others Similarly Situated, Plaintiff-Appellant, v. THE CITY OF
O'FALLON, Defendant-Appellee, Case No. 5-19-0466 (Ill. App.), the
Appellate Court of Illinois for the Fifth District reversed the
circuit court's summary judgment in favor of O'Fallon and remanded
for further proceedings.
The class action case presents a constitutional challenge to the
validity of an ordinance enacted by the Defendant, the City of
O'Fallon. O'Fallon's ordinance authorizes the municipality to
impound a motor vehicle that is used to commit certain offenses,
including driving under the influence. The ordinance also provides
for a $500 charge to the owner of any motor vehicle that is
impounded under the ordinance. The $500 charge is in addition to
any fees imposed for the vehicle's towing and storage and any
penalties imposed for the underlying offense.
On Oct. 8, 2011, the Plaintiff was arrested by the O'Fallon Police
Department for a Level I violation, his vehicle was towed and
impounded pursuant to O'Fallon's ordinance, and he paid the $500
administrative fee. In his class action complaint, the Plaintiff
alleged that the $500 fee violated his substantive due process
rights because the amount of the fee was not rationally related to
the cost of towing services or any other services provided by
O'Fallon. He alleged that there is no rational justification for
imposing $500 administrative fee upon a motorist to merely issue
that person a receipt stating they have paid $500.
The Plaintiff brought the class action proceeding on behalf of
himself and similarly situated individuals consisting of all
persons who were cited and arrested for any of the Level I
violations that resulted in the payment of the $500 administrative
fee set out in O'Fallon's ordinance. The Plaintiff's original
class action complaint alleged only a facial constitutional
challenge, not an as-applied constitutional challenge. However,
the Plaintiff's first and second amended class action complaints
included both facial and as-applied constitutional challenges to
the ordinance.
The Plaintiff filed a class action complaint, alleging that
O'Fallon's ordinance was unconstitutional because the amount of the
"administrative fee" was not reasonably related to the recoupment
of any actual costs incurred by O'Fallon. O'Fallon filed a motion
for summary judgment maintaining that its ordinance called for a
$500 "fine" that is imposed as a penalty to deter criminal
behavior, not a "fee" to recoup costs. O'Fallon argued that, as a
"fine," the amount passes constitutional muster because the amount
is not grossly disproportionate to the offenses that call for the
fine to be imposed.
O'Fallon's motion for summary judgment, therefore, required the
circuit court to interpret the language of the ordinance and
determine whether it imposed a fine or a fee. The circuit court
interpreted O'Fallon's ordinance as providing for a $500 fine. As
a result, the circuit court granted O'Fallon's motion for summary
judgment because the Plaintiff did not contend that a $500 "fine"
was grossly disproportionate to the underlying offenses calling for
the fine.
The Plaintiff now appeals the circuit court's judgment, arguing
that the ordinance provides for a fee, not a fine.
The Appellate Court finds it significant that, not only did
O'Fallon describe the $500 charge as a fee, but it expressly stated
in the preamble that the ordinance's purpose was to "recoup costs
associated with processing certain arrests." It is the purpose of
a fee, not a fine. It also finds it significant that O'Fallon made
no mention of punishment or crime deterrence in setting out the
purpose for imposing the "administrative fee." O'Fallon does not
use any language in its preamble or in the body of the ordinance to
suggest that any part of the city's intent in imposing the fee is
to deter crime or to punish people who own vehicles that have been
used to commit Level I offenses.
In addition to that express language, the Appellate Court believes
that some of the attributes of the $500 charge are consistent with
the charge being a fee. Accordingly, it does not believe that the
attributes of the $500 charge in O'Fallon's ordinance clearly
indicate that O'Fallon intended the charge to serve a purpose
different than its chosen label (fee) and different than its
expressed intent (recoupment of costs).
The Appellate Court agrees with O'Fallon that some attributes of
the $500 charge are consistent with the $500 charge being a fine.
However, those attributes are not so compelling that they outweigh
the plain language that O'Fallon used in declaring its intent in
creating the ordinance. The attributes, at most, are inconclusive
as they are consistent with a fine and a fee. O'Fallon's express
intent requires us to construe the $500 charge in the case as a
fee.
Finally, the Appellate Court notes that the circuit court has not
addressed the issue of whether the amount of the fee was rationally
related to O'Fallon's legitimate governmental interests in
recouping costs. The circuit court did not address the issue
because it granted summary judgment in favor of O'Fallon on the
basis that the ordinance established a fine. The Plaintiff argues
that he has sufficiently pled that the fee is not rationally
related to the recoupment of any costs and that there remains a
factual question concerning the reasonableness of the amount of the
charge. The Court agrees and, therefore, concludes that the
circuit court erred in granting O'Fallon's motion for summary
judgment.
The Appellate Court expresses no opinion concerning whether the
amount of the fee is rationally related to O'Fallon's recoupment of
expenses. It holds only that the court erred in granting summary
judgment on the basis that O'Fallon's ordinance provided for a
fine.
For the foregoing reasons, the Appellate Court agreed with the
Plaintiff and construed O'Fallon's ordinance as imposing a fee,
rather than a fine. Accordingly, it reversed the circuit court's
summary judgment in favor of O'Fallon and remanded for further
proceedings.
A full-text copy of the Court's Aug. 26, 2020 Opinion is available
at https://tinyurl.com/yy5wm9r8 from Leagle.com.
Donna Morrison Polinske -- polinske@sbcglobal.net -- Brian L.
Polinske, Edwardsville, IL, Attorneys for Appellant.
Brian M. Funk -- bfunk@okgc.com -- O'Halloran, Kosoff, Geitner &
Cook, LLC, Northbrook, IL, Attorney for Appellee.
ODONATE THERAPEUTICS: Class Suit Over Tesetaxel Safety Ongoing
--------------------------------------------------------------
Odonate Therapeutics, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 30, 2020, that the company is a
defendant in a putative class action suit alleging the safety and
tolerability of tesetaxel.
On September 16, 2020, a putative class action lawsuit was filed
against the company and its Chief Executive Officer, as well as its
current and former Chief Financial Officers.
The complaint was filed in the United States District Court for the
Southern District of California and alleges that the company made
material misrepresentations and omissions regarding the safety and
tolerability of tesetaxel in its public statements in violation of
federal securities laws.
The lawsuit seeks damages allegedly sustained by the class and an
award of plaintiffs' costs and attorney fees.
Odonate said, "We believe the complaint is without merit, and we
have substantive defenses to the claims of liability and damages.
We plan to respond accordingly."
Odonate Therapeutics, Inc. is a pharmaceutical company dedicated to
the development of best-in-class therapeutics that improve and
extend the lives of patients with cancer. The company's initial
focus is on the development of tesetaxel, an investigational,
orally administered chemotherapy agent that belongs to a class of
drugs known as taxanes, which are widely used in the treatment of
cancer. The company is based in San Diego, California.
OHIO RENAL: Freeman Sues Over Unlawful OT Pay and Wage Statements
-----------------------------------------------------------------
DAVID M. FREEMAN, on behalf of himself and all others similarly
situated, Plaintiff v. OHIO RENAL CARE GROUP, LLC, RENAL CARE
GROUP, INC., AND FRESENIUS MEDICAL CARE HOLDINGS, INC., Defendants,
Case No. 1:20-cv-02402 (N.D. Ohio, October 22, 2020) is a class and
collective action complaint brought against the Defendants for
their alleged violations of the Fair Labor Standards Act.
According to the complaint, the Plaintiff and other similarly
situated employees frequently worked 40 or more hours per week.
However, they did not receive accurate overtime compensation for
all hours they worked over 40 because the Defendants allegedly
auto-deducted break periods from their timesheets although their
breaks were not taken.
Moreover, the Defendants failed to maintain accurate and complete
records of employees' time or working hours.
The Plaintiff has worked as an acute care dialysis nurse for the
Defendants from December 21, 2009 to the present.
Ohio Renal Care Group, LLC operates a joint venture with Defendant
Renal Care Group, Inc. to provide dialysis treatment at healthcare
facilities throughout Northeast Ohio and the state generally.
Renal Care Group has been a wholly-owned subsidiary of Defendant
Fresenius Medical Care Holdings, Inc. dba Fresenius Medical Care
North America.
Fresenius provides coordinated health care services at pivotal care
points for hundreds of thousands of chronically ill customers
throughout the continent. [BN]
The Plaintiff is represented by:
Scott D. Perlmuter, Esq.
TITTLE & PERLMUTER
4106 Bridge Avenue
Cleveland, OH 44113
Tel: (216) 308-1522
Fax: (888) 604-9299
E-mail: scott@tittlelawfirm.com
- and –
Thomas A. Downie, Esq.
46 Chagrin Falls Plaza #104
Chagrin Falls, OH 44022
Tel: (440) 973-9000
E-mail: tom@chagrinlaw.com
OTIS WORLDWIDE: Continues to Defend Darnis Putative Class Suit
--------------------------------------------------------------
Otis Worldwide Corporation said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 30, 2020, that the company
continues to defend a putative class action suit entitled, Geraud
Darnis et al. v. Raytheon Technologies Corporation et al.
On August 12, 2020, a putative class action lawsuit, (Geraud Darnis
et al. v. Raytheon Technologies Corporation et al.), was filed in
the United States District Court for the District of Connecticut
against Otis, Raytheon Technologies Corporation ("RTX"), Carrier,
each of their directors, and various incentive and deferred
compensation plans.
The named plaintiffs are former employees of United Technologies
Corporation (UTC) and its current and former subsidiaries,
including Otis and Carrier. They seek to recover monetary damages,
as well as related declaratory and equitable relief, based on
claimed decreases in the value of long-term incentive awards and
deferred compensation under nonqualified deferred compensation
plans allegedly caused by the formula used to calculate the
adjustments to such awards and deferred compensation from RTX,
Carrier, and Otis following the spin-offs of Carrier and Otis and
the subsequent combination of UTC and Raytheon Company.
Otis believes that the claims are without merit. At this time, Otis
is unable to predict the outcome, or the possible loss or range of
loss, if any, which could result from this action.
Otis Worldwide Corporation is the world's largest elevator and
escalator manufacturing, installation and service company. The
Company is organized into two segments - New Equipment and Service.
Through our New Equipment segment, we design, manufacture, sell and
install a wide range of passenger and freight elevators, as well as
escalators and moving walkways for residential and commercial
buildings and infrastructure projects. The company is based in
Farmington, Connecticut.
PENNSYLVANIA: Jennings Suit Seeks to Certify Class of Residents
---------------------------------------------------------------
In the class action lawsuit captioned as RUSSEL "JOEY" JENNINGS,
RINALDO SCRUCI, ROBERT B. CARSON, LAUREN LOTZI, BETH LAMBO, MARIA
KASHATUS, DAVID NAULTY, MAUREEN JORDA, JANINE WINSOCK, CYNTHIA
MARTIN, TERRY D. HETRICK, SHARON MCCABE, and VIOLA "VIANNE" CAYE,
v. TOM WOLF, TERESA D. MILLER, KRISTIN AHRENS, SUE RODGERS, MARK J.
GEORGETTI, PENNSYLVANIA DEPARTMENT OF HUMAN SERVICES, PENNSYLVANIA
OFFICE OF DEVELOPMENT PROGRAMS, POLK CENTER, and WHITE HAVEN
CENTER, Case No. 3:20-cv-00148-MEM (M.D. Pa.), the Plaintiffs ask
the Court for an order certifying the case as a class action on
behalf of "284 residents of Polk Center and White Haven Center."
The class claims or issues are:
a. There are unmet obligations of Defendants to provide
treatment, supports, and services to individuals residing
in the Centers consistent with the Americans with
Disabilities Act and implementing regulations. The forcing
of discharges or transfers on Plaintiffs to inappropriate,
harmful and more restrictive environments without their
consent, or without the consent of their guardians or
families.
b. Section 504 of the Rehabilitation Act states that "[n]o
otherwise qualified person with disabilities shall, solely
by reason of his or her disability, be excluded from
participation in, be denied benefits of, or be subjected
to discrimination under any program or activity receiving
federal financial assistance."
c. The Commonwealth of Pennsylvania has voluntarily assumed
certain obligations under federal law in return for
federal funding under the Medical Assistance Program
authorized by 42 U.S.C. section 1396, et seq.
The Pennsylvania Department of Human Services is a cabinet-level
state agency in Pennsylvania. The Pennsylvania Department of Human
Services's seven program offices administer services that provide
care and support to Pennsylvania's most vulnerable citizens.
A copy of the Plaintiffs' motion to certify class is available from
PacerMonitor.com at https://bit.ly/3nlyAEG at no extra charge.[CC]
The Plaintiffs are represented by:
Thomas Cook, Esq.
1205 Argus Road
Kill Devil Hills, NC 27948
Telephone: (717) 495-4555
E-mail: tyork@yorklaw.us
The Defendants are represented by:
Jessica S. Davis, Esq.
SENIOR DEPUTY ATTORNEY GENERAL
OFFICE OF ATTORNEY GENERAL
15th Floor, Strawberry Square
Harrisburg, PA 17120
PETRO-HUNT: Fredericksburg Balks at Untimely Gas Royalty Payments
-----------------------------------------------------------------
FREDERICKSBURG ROYALTY, LTD., on behalf of itself and all others
similarly situated, v. PETRO-HUNT, L.L.C., Case No. 3:20-cv-03170-L
(N.D. Tex., Oct. 19, 2020), arises from Petro-Hunt's willful and
ongoing violations of North Dakota law related to the interest owed
on untimely payments of oil-and-gas royalties.
North Dakota statute requires operators like Petro-Hunt to pay
royalties to mineral owners, both leased and unleased, within 150
days of marketing the oil or gas. The statute further requires
operators to pay mineral owners statutory interest when they fail
to meet that deadline.
The Plaintiff alleges that Petro-Hunt does not automatically pay
mineral owners the interest it owes on untimely royalty payments.
Instead, it has a policy of only paying statutory interest when
mineral owners demand it, despite the fact that the statute
expressly disclaims a demand requirement.
The Plaintiff brings this class action to recover damages for
itself and all similarly situated mineral owners who received
untimely payments from Petro-Hunt for which it did not pay the
interest required by North Dakota statute.
The Plaintiff owns an interest in oil and gas produced from the
Klevmoen 153-95-17C-7-2H well, which is located in Section
17-153N-95W in McKenzie County, North Dakota.
Petro-Hunt operates the Klevmoen 153-95-17C-7-2H well and remits
royalty payments to the Plaintiff.[BN]
The Plaintiff is represented by:
Reagan E. Bradford, Esq.
Ryan K. Wilson, Esq
BRADFORD & WILSON PLLC
431 W. Main Street, Suite D
Oklahoma City, OK 73102
Telephone: (405) 698-2770
Facsimile: (405) 234-5506
E-mail: reagan@bradwil.com
ryan@bradwil.com
- and -
John Paul Albert, Esq.
Brady L. Smith, Esq.
NEEDHAM & ASSOCIATES, PLLC
410 N. Walnut Avenue, Suite 110
Oklahoma City, OK 73104
Telephone: (405) 297-0176
Facsimile: (405) 297-0173
E-mail: jpalbert@theneedhamcompanies.com
brady@theneedhamcompanies.com
- and -
John C. Sokatch, Esq.
DYKEMA GOSSETT PLLC
1717 Main Street, Suite 4200
Dallas, TX 75201
Telephone: (214) 462-6494
E-mail: jsokatch@dykema.com
PHILIP MORRIS: Amended Complaint in Rebolledo Suit Not Yet Served
-----------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 27, 2020,
for the quarterly period ended September 30, 2020, that Philip
Morris Colombia S.A. has yet to be served with the amended
complaint in the purported class action suit Ana Ferrero Rebolledo
v. Philip Morris Colombia S.A., et al.
In Colombia, an individual filed a purported class action, Ana
Ferrero Rebolledo v. Philip Morris Colombia S.A., et al., in April
2019 against the company's subsidiaries with the Civil Court of
Bogota related to the marketing of the company's Platform 1
product.
Plaintiff alleged that the company's subsidiaries advertise the
product in contravention of law and in a manner that misleads
consumers by portraying the product in a positive light, and
further asserts that the Platform 1 vapor contains many toxic
compounds, creates a high level of dependence, and has damaging
second-hand effects.
Plaintiff sought injunctive relief and damages on her behalf and on
a behalf of two classes (class 1 - all Platform 1 consumers in
Colombia who seek damages for the purchase price of the product and
personal injuries related to the alleged addiction, and class 2 -
all residents of the neighborhood where the advertising allegedly
took place who seek damages for exposure to the alleged illegal
advertising).
The company's subsidiaries answered the complaint in January 2020,
and in February 2020, plaintiff filed an amended complaint. The
amended complaint modifies the relief sought on behalf of the named
plaintiff and on behalf of a single class (all consumers of
Platform 1 products in Colombia who seek damages for the product
purchase price and personal injuries related to the use of an
allegedly harmful product).
"The amended complaint has not yet been served on our
subsidiaries," the Company said.
No further updates were provided in the Company's SEC report.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Appeal in ADESF Class Suit vs. Unit Dismissed
------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 27, 2020,
for the quarterly period ended September 30, 2020, that the
Superior Court of Justice has confirmed the denial of plaintiff's
appeal finally dismissing the plaintiff's claim in The Smoker
Health Defense Association (ADESF) v. Souza Cruz, S.A. and Philip
Morris Marketing, S.A. suit.
In a class action in Brazil, The Smoker Health Defense Association
(ADESF) v. Souza Cruz, S.A. and Philip Morris Marketing, S.A.,
Nineteenth Lower Civil Court of the Central Courts of the Judiciary
District of Sao Paulo, Brazil, filed July 25, 1995, the company's
subsidiary and another member of the industry are defendants.
The plaintiff, a consumer organization, sought damages for all
addicted smokers and former smokers, and injunctive relief.
In 2004, the trial court found defendants liable without hearing
evidence and awarded "moral damages" of R$1,000 (approximately
$179) per smoker per full year of smoking plus interest at the rate
of 1% per month, as of the date of the ruling.
The court did not award actual damages, which were to be assessed
in the second phase of the case. The size of the class was not
estimated.
Defendants appealed to the Sao Paulo Court of Appeals, which
annulled the ruling in November 2008, finding that the trial court
had inappropriately ruled without hearing evidence and returned the
case to the trial court for further proceedings.
In May 2011, the trial court dismissed the claim. In February 2015,
the appellate court unanimously dismissed plaintiff's appeal.
In September 2015, plaintiff appealed to the Superior Court of
Justice. In February 2017, the Chief Justice of the Superior Court
of Justice denied plaintiff's appeal. Plaintiff filed a further
appeal.
In August 2020, the Superior Court of Justice confirmed the denial
of plaintiff's appeal finally dismissing the plaintiff's claim.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Continues to Defend Adams Class Suit in Canada
-------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 27, 2020,
for the quarterly period ended September 30, 2020, that the company
continues to defend a class action suit entitled, Adams v. Canadian
Tobacco Manufacturers' Council, et al.
In a class action pending in Canada, Suzanne Jacklin v. Canadian
Tobacco Manufacturers' Council, et al., Ontario Superior Court of
Justice, filed June 20, 2012, the company, Rothmans, Benson &
Hedges Inc. ("RBH"), and the company's indemnitees (PM USA and
Altria), and other members of the industry are defendants.
The plaintiff, an individual smoker, alleges her own addiction to
tobacco products and chronic obstructive pulmonary disease ("COPD")
resulting from the use of tobacco products.
She is seeking compensatory and punitive damages on behalf of a
proposed class comprised of all smokers who have smoked a minimum
of 25,000 cigarettes and have allegedly suffered, or suffer, from
COPD, heart disease, or cancer, as well as restitution of profits.
No further updates were provided in the Company's SEC report.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Continues to Defend Securities Class Suit in NY
--------------------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 27, 2020,
for the quarterly period ended September 30, 2020, that the company
continues to defend a putative shareholder class action suit
entitled, In re Philip Morris International Inc. Securities
Litigation.
A putative shareholder class action lawsuit, In re Philip Morris
International Inc. Securities Litigation, is pending in the United
States District Court for the Southern District of New York,
purportedly on behalf of purchasers of Philip Morris International
Inc. stock between July 26, 2016 and April 18, 2018.
The lawsuit names Philip Morris International Inc. and certain
officers and employees as defendants and includes allegations that
the defendants made false and/or misleading statements and/or
failed to disclose information about PMI's business, operations,
financial condition, and prospects, related to product sales of,
and alleged irregularities in clinical studies of, PMI's Platform 1
product. The lawsuit seeks various forms of relief, including
damages.
In November 2018, the court consolidated three putative shareholder
class action lawsuits with similar allegations previously filed in
the Southern District of New York (namely, City of Westland Police
and Fire Retirement System v. Philip Morris International Inc., et
al, Greater Pennsylvania Carpenters' Pension Fund v. Philip Morris
International Inc., et al., and Gilchrist v. Philip Morris
International Inc., et al.) into these proceedings.
A putative shareholder class action lawsuit, Rubenstahl v. Philip
Morris International Inc., et al., that had been previously filed
in December 2017 in the United States District Court for the
District of New Jersey, was voluntarily dismissed by the plaintiff
due to similar allegations in these proceedings.
On February 4, 2020, the court granted defendants' motion in its
entirety, dismissing all but one of the plaintiffs' claims with
prejudice. The court noted that one of plaintiffs’ claims
(allegations relating to four non-clinical studies of PMI's
Platform 1 product) did not state a viable claim but allowed
plaintiffs to replead that claim by March 3, 2020.
On February 18, 2020, the plaintiffs filed a motion for
reconsideration of the court's February 4th decision; this motion
was denied on September 21, 2020.
On September 28, 2020, plaintiffs filed an amended complaint
seeking to replead allegations relating to four non-clinical
studies of PMI's Platform 1 product.
Philip Morris said, "We believe that this lawsuit is without merit
and will continue to defend it vigorously."
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
PHILIP MORRIS: Still Defends McDermid Class Action
--------------------------------------------------
Philip Morris International Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 27, 2020,
for the quarterly period ended September 30, 2020, that the company
continues to defend a class action suit entitled, McDermid v.
Imperial Tobacco Canada Limited, et al.
In a class action pending in Canada, McDermid v. Imperial Tobacco
Canada Limited, et al., Supreme Court, British Columbia, Canada,
filed June 25, 2010, the company, Rothmans, Benson & Hedges Inc.
("RBH"), and the company's indemnitees (PM USA and Altria), and
other members of the industry are defendants.
The plaintiff, an individual smoker, alleges his own addiction to
tobacco products and heart disease resulting from the use of
tobacco products.
He is seeking compensatory and punitive damages on behalf of a
proposed class comprised of all smokers who were alive on June 12,
2007, and who suffered from heart disease allegedly caused by
smoking, their estates, dependents and family members, plus
disgorgement of revenues earned by the defendants from January 1,
1954, to the date the claim was filed.
No further updates were provided in the Company's SEC report.
Philip Morris International Inc., through its subsidiaries,
manufactures and sells cigarettes, other nicotine-containing
products, and smoke-free products and related electronic devices
and accessories. The company was incorporated in 1987 and is
headquartered in New York, New York.
POLARIS INC: 8th Cir. to Hear Appeal in Johannessohn Suit
---------------------------------------------------------
Polaris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 27, 2020, for the quarterly
period ended September 30, 2020, that the United States Court of
Appeals for the Eighth Circuit has agreed to hear plaintiffs'
appeal from a lower court ruling denying class certification in the
matter, Riley Johannessohn, Daniel Badilla, James Kelley, Kevin
Wonders, William Bates and James Pinion, individually and on behalf
of all others similarly situated v. Polaris Industries (D. Minn.).
A putative class action is also pending in the United States
District Court for the District of Minnesota and alleges excessive
heat hazards on Sportsman ATV, seeking damages for alleged economic
loss: Riley Johannessohn, Daniel Badilla, James Kelley, Kevin
Wonders, William Bates and James Pinion, individually and on behalf
of all others similarly situated v. Polaris Industries (D. Minn.),
October 4, 2016.
On March 31, 2020, the district court judge denied class
certification.
The Eighth Circuit agreed to hear plaintiffs' appeal.
Polaris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 27, 2020, for the quarterly
period ended September 30, 2020, that
No further updates were provided in the Company's SEC report.
Polaris Inc. is an American manufacturer of motorcycles,
snowmobiles, ATV, and neighborhood electric vehicles. Polaris was
founded in Roseau, Minnesota, USA, where it still has engineering
and manufacturing. The company's corporate headquarters is in
Medina, Minnesota. The company manufactured motorcycles through its
Victory Motorcycles subsidiary until January 2017, and currently
produces motorcycles through the Indian Motorcycle subsidiary,
which it purchased in April 2011. Polaris produced personal
watercraft from 1994-2004. The company was originally named Polaris
Industries Inc. and was renamed in 2019 to Polaris Inc.
POLARIS INC: Appeal in Sales & Product Liability Suit Pending
-------------------------------------------------------------
Polaris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 27, 2020, for the quarterly
period ended September 30, 2020, that the appeal in the putative
class action suit entitled, In re Polaris Marketing, Sales
Practices, and Product Liability Litigation (D. Minn.), is
pending.
A putative class action is pending in the United States District
Court for the District of Minnesota and arises out of allegations
that certain Polaris products suffer from purportedly unresolved
fire hazards allegedly resulting in economic loss, and is the
result of the consolidation of the three putative class actions
that were filed between April 5-10, 2018 and that the company
disclosed in its Quarterly Report on Form 10-Q for the period ended
March 31, 2018: In re Polaris Marketing, Sales Practices, and
Product Liability Litigation (D. Minn.), June 15, 2018.
On February 26, 2020, the district court dismissed the majority of
plaintiffs and claims. Plaintiffs subsequently voluntarily
dismissed the remaining plaintiffs and have appealed, as of right,
to the Eight Circuit on behalf of the Court dismissed plaintiffs.
Polaris Inc. is an American manufacturer of motorcycles,
snowmobiles, ATV, and neighborhood electric vehicles. Polaris was
founded in Roseau, Minnesota, USA, where it still has engineering
and manufacturing. The company's corporate headquarters is in
Medina, Minnesota. The company manufactured motorcycles through its
Victory Motorcycles subsidiary until January 2017, and currently
produces motorcycles through the Indian Motorcycle subsidiary,
which it purchased in April 2011. Polaris produced personal
watercraft from 1994-2004. The company was originally named Polaris
Industries Inc. and was renamed in 2019 to Polaris Inc.
POLARIS INC: Deposition & Document Discovery in "Guzman" Ongoing
----------------------------------------------------------------
Polaris Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 27, 2020, for the quarterly
period ended September 30, 2020, that deposition and document
discovery are proceeding in the case, Paul Guzman and Jeremy
Albright v. Polaris Inc., Polaris Industries Inc., and Polaris
Sales Inc.
A class action is pending in the United States District Court for
the Central District of California and alleges violations of
various California consumer protection laws focused on rollover
protection systems' certifications, for various Polaris off-road
vehicles sold in California: Paul Guzman and Jeremy Albright v.
Polaris Inc., Polaris Industries Inc., and Polaris Sales Inc.,
August 8, 2019.
Depositions and document discovery are proceeding in this matter.
No further updates were provided in the Company's SEC report.
Polaris Inc. is an American manufacturer of motorcycles,
snowmobiles, ATV, and neighborhood electric vehicles. Polaris was
founded in Roseau, Minnesota, USA, where it still has engineering
and manufacturing. The company's corporate headquarters is in
Medina, Minnesota. The company manufactured motorcycles through its
Victory Motorcycles subsidiary until January 2017, and currently
produces motorcycles through the Indian Motorcycle subsidiary,
which it purchased in April 2011. Polaris produced personal
watercraft from 1994-2004. The company was originally named Polaris
Industries Inc. and was renamed in 2019 to Polaris Inc.
PORSCHE AG: Manipulates Emissions Testing Results, Del Barrio Says
------------------------------------------------------------------
ERNESTO DEL BARRIO JR. AND OWEN WILLIAMS, on behalf of themselves
and all others similarly situated, v. DR. ING. H.C. F. PORSCHE AG,
and PORSCHE CARS NORTH AMERICA, INC., Case No. 3:20-cv-07341 (N.D.
Cal., Oct. 19, 2020), concerns the deception of Porsche consumers
stemming from the manipulation of federal and California emissions
testing for Porsche cars in the U.S. market.
The Plaintiffs contend that despite Volkswagen's promises to "come
clean" and to be honest about its past mistakes in 2015, its
subsidiary Porsche apparently persisted in concealing its
emission-testing deception for its high-end 911 and Panamera
vehicles.
Five years after the 2015 scandal surrounding Volkswagen Group's
installation of "Defeat Devices" in Volkswagen, Audi, and Porsche
diesel vehicles that unlawfully concealed from regulators and
consumers the true and illegally-high levels of pollutants these
vehicles emitted, and following the discovery of a similar device
in Audi gasoline vehicles, another "Defeat Device" embedded in
numerous Porsche vehicles during emissions testing has just come to
light. New reporting reveals that Porsche deliberately modified the
transmissions of test vehicles so that they emitted fewer
pollutants during testing than the actual cars it sold to consumers
would emit during normal use, says the complaint.
As a direct and proximate result of Porsche's breach, the Plaintiff
Williams and New Jersey Class members have been damaged. They
reasonably relied on Porsche's warranty in purchasing and
continuing to drive Class Vehicles. They were unaware of Porsche's
emissions-testing manipulation. Had they known the truth, they
would not have acted as they did. They would not have purchased
vehicles whose high performance was only made possible through
emissions fraud, or would have paid less for them, the Plaintiffs
allege.
Dr.-Ing. h.c. F. Porsche AG, usually shortened to Porsche AG, is a
German automobile manufacturer specializing in high-performance
sports cars, SUVs and sedans.[BN]
The Plaintiffs are represented by:
Gretchen Freeman Cappio, Esq.
Ryan McDevitt, Esq.
Adele A. Daniel, Esq.
Matthew J. Preusch, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101-3052
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
E-mail: gcappio@kellerrohrback.com
rmcdevitt@kellerrohrback.csom
adaniel@kellerrohrback.com
PORTLAND GENERAL: Employees' Fund Sues Over Share Price Drop
------------------------------------------------------------
Public Employees' Retirement System of Mississippi, Individually,
and on Behalf of All Others Similarly Situated v. PORTLAND GENERAL
ELECTRIC COMPANY, MARIA POPE, and JAMES F. LOBDELL, Case No.
3:20-cv-01786-MO (D. Ore., Oct. 16, 2020), is brought pursuant to
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder; on behalf of Plaintiff and all other persons or
entities who purchased or otherwise acquired securities of the
Portland General Electric Company during the period from February
13, 2020 to August 24, 2020, inclusive and were damaged thereby as
a result from materially false and misleading statements and
omissions by PGE.
After the market closed on August 24, 2020, PGE sprung on its
investors news that the Company was taking a $128 million loss by
its proprietary trading unit, which investors did not know even
existed, based on wrong way bets in the energy trading market.
Changes in the wholesale energy markets in the summer of 2020
exposed these "ill conceived" trades, forcing PGE to disclose its
proprietary trading unit and report the loss.
In announcing the loss, PGE placed employees on administrative
leave and created a special committee to review the Company's
energy trading practices and its controls related to the trading,
with the assistance of external advisors. PGE also lowered its
earning guidance, down from $2.20-$2.50/share -- which it had
reaffirmed just weeks earlier on July 31, 2020 -- to
$1.30-$1.60/share. The surprise announcement of a nine-figure loss
arising from a business segment that investors did not know even
existed other than to hedge and manage risk stunned the markets and
decimated PGE's stock price, which fell by nearly 8% on unusually
heavy volume as a result of the announcement. The stock's decline
wiped out of over $300 million in shareholder value.
The complaint alleges that Defendants made materially false and/or
misleading statements and failed to disclose material adverse facts
about PGE's business. Specifically, the Defendants failed to
disclose to investors that: (1) PGE had entered into substantial
trades in the wholesale energy markets, with increasing volumes in
2020; (2) PGE lacked effective internal controls over its energy
trading practices; (3) PGE downplayed the risks it faced in
commodity price exposure; and (4) the Company's trading in the
wholesale energy markets created significant negative exposure for
PGE and was reasonably likely to incur significant losses. As a
result of the foregoing, PGE's stock price dropped precipitously,
its earnings guidance was slashed, and the Defendants' positive
statements about PGE's operations were materially misleading and/or
lacked a reasonable basis, says the complaint.
The Plaintiff, the Public Employees' Retirement System of
Mississippi, acquired shares of PGE common stock during the Class
Period.
PGE is an electric utility which produces, acquires, and
distributes electricity to over 900,000 customers throughout
Oregon, about its proprietary trading activity in the wholesale
energy markets..[BN]
The Plaintiff is represented by:
Keith S. Dubanevich, OSB No. 975200
Keil M. Mueller, Esq.
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
209 S.W. Oak Street, Suite 500
Portland, OR 97204
Phone: (503) 227-1600
Facsimile: (503) 227-6840
Email: Kdubanevich@stollberne.com
kmueller@stollberne.com
- and -
Daniel L. Berger, Esq.
Caitlin M. Moyna, Esq.
GRANT & EISENHOFER P.A.
485 Lexington Avenue, 29th Floor
New York, NY 10017
Phone: (646) 722 8500
Facsimile: (646) 722 8501
Email: dberger@gelaw.com
cmoyna@gelaw.com
PORTLAND GENERAL: Glancy Prongay Reminds of Nov. 2 Deadline
-----------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM") reminds investors of today's
(November 2, 2020) deadline to file a lead plaintiff motion in the
class action filed on behalf of investors who purchased or
otherwise acquired Portland General Electric Company ("PGE" or the
"Company") (NYSE: POR) securities between April 24, 2020 and August
24, 2020, inclusive (the "Class Period").
If you suffered a loss on your PGE investments or would like to
inquire about potentially pursuing claims to recover your loss
under the federal securities laws, you can submit your contact
information at
https://www.glancylaw.com/cases/portland-general-electric-company/.
You can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com to learn more about your rights.
On August 24, 2020, after the market closed, PGE announced that it
had incurred losses of $127 million as of August 24, 2020. PGE
further stated that "personnel entered into a number of energy
trades during 2020, with increasing volume accumulating late in the
second quarter and into the third quarter, resulting in significant
exposure to the Company." In addition, the Company announced that
it had formed a Special Committee "to review the energy trading
that led to the losses and the Company's procedures and controls
related to the trading."
On this news, the Company's share price fell $3.51, or nearly 8%,
to close at $38.45 per share on August 24, 2020, thereby injuring
investors.
The complaint filed in this class action alleges that throughout
the Class Period, 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: (1) that PGE lacked effective internal controls over its
energy trading practices; (2) that PGE personnel had entered energy
trades during 2020, with increasing volume accumulating late in the
second quarter and into the third quarter, that created significant
negative financial exposure for PGE; (3) that, as a result, the
Company was reasonably likely to incur significant losses; 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 or otherwise acquired PGE securities during the
Class Period, you may move the Court no later than November 2, 2020
to request appointment as lead plaintiff in this putative class
action lawsuit. To be a member of the class action you need not
take any action at this time; you may retain counsel of your choice
or take no action and remain an absent member of the class action.
If you wish to learn more about this class action, or if you have
any questions concerning this announcement or your rights or
interests with respect to the pending class action lawsuit, please
contact Charles Linehan, Esquire, of GPM, 1925 Century Park East,
Suite 2100, Los Angeles, California 90067 at 310-201-9150,
Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com,
or visit our website at www.glancylaw.com. If you inquire by email
please include your mailing address, telephone number and number of
shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
PRO FACADE: Hernandez Seeks to Recover Unpaid Wages Under FLSA
--------------------------------------------------------------
RUBEN HERNANDEZ, YOANNY AREBALO ALBA and other similarly situated
individuals, v. PRO FACADE LLC, a Florida Corporation, JOSE
BARRIOS, RAPHAEL LEVY, and DELFINA BARRIOS, individually, Case No.
1:20-cv-24282-XXXX (S.D. Fla., Oct. 19, 2020), is an action to
recover money damages for unpaid wages pursuant to the Fair Labor
Standards Act.
The Plaintiffs are iron facade installer employees who performed
various duties which included, any and all works that were
necessary of him in the construction site. While employed by the
Defendants, the Plaintiffs are not provided proper overtime pay for
any hours worked over 40.
The Defendant is a Florida Profit corporation having their main
place of business in Miami-Dade County, Florida. The Individual
Defendants are the owners of the Company.[BN]
The Plaintiffs are represented by:
Franklin Antonio Jara, Esq.
JARA LAW FIRM
10271 Sunset Drive, Suite 103
Miami, FL 33173
Telephone: (305) 372-0290
E-mail: Franklin@JaraLaw.com
Joanna@JaraLaw.com
QUEST DIAGNOSTICS: Johnson and Rice Suits Consolidated
------------------------------------------------------
Quest Diagnostics Incorporated said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 23, 2020,
for the quarterly period ended September 30, 2020, that putative
class action suits entitled, House Johnson v. Quest Diagnostics
Incorporated, et al. and Rice, et al. v. Quest Diagnostics
Incorporated, et al., have been consolidated and plaintiffs filed a
consolidated amended complaint.
In June 2020, a putative class action lawsuit, House Johnson v.
Quest Diagnostics Incorporated, et. al, was filed in the U.S.
District Court for New Jersey against the Company and other
defendants with respect to the Company's 401(k) plan.
The complaint alleges, among other things, that the fiduciaries of
the 401(k) plan breached their duties by failing to disclose the
expenses and risks of plan investment options, allowing
unreasonable administration expenses to be charged to plan
participants, and selecting and retaining high cost and poor
performing investments.
In July 2020, a putative class action lawsuit, Rice, et. al v.
Quest Diagnostics Incorporated, et. al, was filed in the U.S.
District Court for New Jersey. The plaintiffs in the Rice case
named the same defendants as those named in the House Johnson case
and alleged substantially similar claims to those made in the House
Johnson matter.
In October 2020, the court consolidated the two lawsuits and
plaintiffs filed a consolidated amended complaint.
The Company plans to vigorously defend this matter.
Quest Diagnostics Incorporated, incorporated on September 20, 1996,
is a provider of diagnostic information services. The Company
operates through two businesses: Diagnostic Information Services
and Diagnostic Solutions. The company is based in Secaucus, New
Jersey.
QUOTEQIZARD.COM LLC: Bid to Dismiss Perrong TCPA Suit Denied
------------------------------------------------------------
In the case, ANDREW PERRONG, Individually And on behalf of a class
of all persons and entities similarly situated, Plaintiff, v.
QUOTEQIZARD.COM, LLC, Defendant, Civil Action No. 20-CV-2506 (E.D.
Pa.), Judge J. Curtis Joyner of the U.S. District Court for the
Eastern District of Pennsylvania denied the Defendant's Motion to
Dismiss pursuant to Fed. R. Civ. P. Nos. 12(b)(1) and 12(b)(6).
The case was initiated by Plaintiff Perrong, a Pennsylvania
resident against QuoteWizard, a Delaware limited liability
corporation with its principal place of business in Seattle, WA,
pursuant to the Telephone Consumer Protection Act ("TCPA"). In his
Complaint, the Plaintiff alleges that the TCPA was enacted to
prevent nuisance telemarketing calls and that the Defendant, a
telemarketer, sent a pre-recorded message to him without consent.
He further avers that because telemarketing campaigns generally
result in the placement of "hundreds of thousands or even millions"
of calls to "potential customers en masse," he therefore is
endeavoring to bring the action on behalf of a nationwide class of
individuals who have received similar illegal calls from or on
behalf of Defendant. The Plaintiff submits that the Court has
federal question jurisdiction over this matter pursuant to 28
U.S.C. Section 1331 and that venue is proper in the district as he
resides here and the telemarketing call to him was placed.
As to the particulars of his own claim, the Plaintiff alleges that
on April 17, 2020 at 3:02 p.m., he received one of these prohibited
calls from an "Avatar," which identified itself as "Danny" with
"Cheap Insurance Rates Online." He responded to the prompts from
the "Avatar" in an effort to receive a follow-up call as he
suspected that "Cheap Insurance Rates Online" was not the true
company behind the call. He provided the Avatar with false vehicle
information and a mis-transcribed name -- "Andy Terrong," and
requested a follow-up to the call. The Plaintiff avers that he
provided the incorrect information so that if there were a
follow-up, he would be able to discern that the preliminary
information was gathered during the particular phone call.
Approximately three hours later, he received an email from Geico
Insurance Co. addressed to Andy Terrong and stating that Geico had
received his information from its "partner site, QuoteWizard." The
Plaintiff alleges that he has never submitted any information to
QuoteWizard's website.
By his Complaint, the Plaintiff claims that he, along with
potentially "hundreds of thousands or even millions" of others
suffered injury by being temporarily deprived of the use of their
phones because the phone line was tied up and their privacy was
improperly invaded, and because the calls were frustrating,
obnoxious, annoying, a nuisance and disturbed their solitude.
He therefore seeks to bring the action on behalf of a class of
individuals impacted by pre-recorded calls from the Defendant
pursuant to Fed. R. Civ. P. 23(b)(2) and/or (b)(3). He seeks both
injunctive relief prohibiting the defendant from placing telephone
calls using a pre-recorded voice and monetary damages in the amount
of $500 for each violation of the TCPA.
In response, the Defendant QuoteWizard moves to dismiss this matter
in its entirety on the grounds that the Plaintiff lacks standing
and his complaint fails to state a claim upon which relief may be
granted.
Judge Joyner finds that the Plaintiff's Complaint sufficiently
alleges facts which, assumed to be true, establish Article III
standing and state a cause of action under the TCPA against the
Defendant upon which relief could be granted. The Plaintiff's
allegations clearly comport with the pleading requirements set
forth in the TCPA. He therefore finds no merit whatsoever in the
Defendant's argument that the complaint fails to state a viable and
factually plausible claim upon which relief may be granted and for
this reason, the motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) is denied.
Judge Joyner likewise finds that the Complaint more than adequately
alleges that the Plaintiff, and potentially a class of similarly
situated individuals, suffered an invasion of their legally
protected interest as codified in the TCPA and thus suffered a
concrete and particularized, non-hypothetical injury in fact and
that the complaint contains enough factual averments to make out a
causal connection between the Defendant identified -- QuoteWizard,
and the complained-of telephone solicitation such that the
Plaintiff's injury can be said to be fairly traceable to
QuoteWizard's business activity.
Accordingly, the requisite nexus between the April 17, 2020 call to
the Plaintiff and the Defendant's action (as opposed to a third
party not before the Court) has been sufficiently pled. Given that
the relief sought by the Plaintiff is that prescribed by the
statute itself, Judge Joyner finds that it is indeed likely, as
opposed to merely speculative, that the alleged injury will be
redressed by a favorable decision. As a consequence, the Plaintiff
has adequately alleged facts which, taken as true, would confer
standing to sue upon him pursuant to Article III. The motion to
dismiss under Rule 12(b)(1) is therefore also properly denied.
For all of the stated reasons, Judge Joyner denied the Defendant's
Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and
(12(b)(6).
A full-text copy of the Court's Aug. 26, 2020 Memorandum & Order is
available at https://tinyurl.com/y3yze3yx from Leagle.com.
RAVISSANICS BEAUTY: Dou Seeks Unpaid Wages & Overtime Under FLSA
----------------------------------------------------------------
Huijie Dou, on behalf of herself and others similarly situated, v.
RAVISSANICS BEAUTY LLC d/b/a Ravissanics Beauty, and YAHONG SUN,
Case No. 3:20-cv-14793-BRM-TJB (D.N.J., Oct. 21, 2020), alleges
violations of the Fair Labor Standards Act, the New Jersey Wage
Payment Law, the New Jersey Wage and Hour Law, and the New Jersey
Wage and Hour Regulations, arising from the Defendants' various
willful and unlawful employment policies, patterns and/or
practices.
The Plaintiff contends that the Defendants have willfully and
intentionally committed widespread violations of the federal and
state laws by engaging in a patterned practice of failing to pay
its employees, including her, minimum wage for all hours worked and
overtime compensation for all hours worked over 40 each workweek.
The Plaintiff seeks to recover from the Defendants unpaid wage for
regular hours worked, unpaid overtime wages, liquidated damages,
prejudgment and post-judgment interest; and attorneys' fees and
cost.
The Plaintiff Huijie Dou was employed by the Defendants to work as
a massage worker from July 7, 2019 to January 14, 2020, from
February 13, 2020 to March 15, 2020, and finally from July 11, 2020
to July 18, 2020.
Ravissanics Beauty offers in store beauty enhancement services and
massage services, and also sells beauty products over the
Internet.[BN]
The Plaintiff is represented by:
Adam Dong, Esq.
DONG, ADAM'S LAW FIRM PLLC
3708 Main St, Suite 308
Flushing, NY 11354
Telephone: (929) 269-5666
RESTART USA: Faces Sosa Class Suit Over Wage & Hour Violations
--------------------------------------------------------------
EFRAIN SOSA, DULCE SOSA, FANNY MARTINEZ, SENAIDA CASTRO, CLAUDIA
JARA, FANNY CASTRON, NANCY MIRANDA, and JAIRO CASTRO, individually
and on behalf of all others similarly situated, v. RESTART USA INC.
D/B/A FUCHANG USA LLC, and ZHI HAO YUAN, as an individual, Case No.
1:20-cv-04755 (E.D.N.Y., Oct. 5, 2020), seeks to recover damages
resulting the Defendants' violations pf the federal wage and hour
laws arising out of Plaintiffs' employment at Restart USA located
at 1013 Close Avenue, Bronx, New York.
The Plaintiffs seek compensatory damages and liquidated damages in
an amount exceeding $100,000.00. The Plaintiffs also seek interest,
attorneys’ fees, costs, and all other legal and equitable
remedies this Court deems appropriate.[BN]
The Plaintiffs are represented by:
Roman Avshalumov, Esq.
HELEN F. DALTON & ASSOCIATES, P.C.
80-02 Kew Gardens Road, Suite 601
Kew Gardens, NY 11415
Telephone: 718-263-959
RESTAURANTS BRANDS: Appeal in Suit Over Non-Compete Policy Pending
------------------------------------------------------------------
Restaurant Brands International Limited Partnership said in its
Form 10-Q Report filed with the Securities and Exchange Commission
on October 28, 2020, for the quarterly period ended September 30,
2020, that the plaintiffs in the class action suit over employee
no-solicitation and no-hiring policies have taken an appeal from
the court's denial of their motion for leave to amend complaint.
On October 5, 2018, a class action complaint was filed against
Burger King Worldwide, Inc. ("BKW") and Burger King Corporation
("BKC") in the U.S. District Court for the Southern District of
Florida by Jarvis Arrington, individually and on behalf of all
others similarly situated.
On October 18, 2018, a second class action complaint was filed
against Restaurant Brands International Inc. (RBI), BKW and BKC in
the U.S. District Court for the Southern District of Florida by
Monique Michel, individually and on behalf of all others similarly
situated.
On October 31, 2018, a third class action complaint was filed
against BKC and BKW in the U.S. District Court for the Southern
District of Florida by Geneva Blanchard and Tiffany Miller,
individually and on behalf of all others similarly situated.
On November 2, 2018, a fourth class action complaint was filed
against RBI, BKW and BKC in the U.S. District Court for the
Southern District of Florida by Sandra Muster, individually and on
behalf of all others similarly situated.
These complaints have been consolidated and allege that the
defendants violated Section 1 of the Sherman Act by incorporating
an employee no-solicitation and no-hiring clause in the standard
form franchise agreement all Burger King franchisees are required
to sign.
Each plaintiff seeks injunctive relief and damages for himself or
herself and other members of the class.
On March 24, 2020, the Court granted BKC's motion to dismiss for
failure to state a claim and on April 20, 2020 the plaintiffs filed
a motion for leave to amend their complaint.
On April 27, 2020, BKC filed a motion opposing the motion for leave
to amend. The court denied the plaintiffs motion for leave to amend
their complaint in August 2020 and the plaintiffs are appealing
this ruling.
Restaurant Brands said, "While we currently believe these claims
are without merit, we are unable to predict the ultimate outcome of
these cases or estimate the range of possible loss, if any."
Restaurant Brands International Limited Partnership operates and
franchises quick service restaurants. The company operates through
three segments: Tim Hortons, Burger King, and Popeyes. The company
was formerly known as New Red Canada Limited Partnership and
changed its name to Restaurant Brands International Limited
Partnership in December 2014. The company was founded in 1954 and
is headquartered in Toronto, Canada. Restaurant Brands
International Limited Partnership is a subsidiary of Restaurant
Brands International Inc.
RESTAURANTS BRANDS: Latifi Suit Against TDL Group Corp. Ongoing
---------------------------------------------------------------
Restaurant Brands International Limited Partnership said in its
Form 10-Q Report filed with the Securities and Exchange Commission
on October 28, 2020, for the quarterly period ended September 30,
2020, that The TDL Group Corp. continues to defend a class action
suit initiated by Samir Latifi.
In July 2019, a class action complaint was filed against The TDL
Group Corp. in the Supreme Court of British Columbia by Samir
Latifi, individually and on behalf of all others similarly
situated.
The complaint alleges TDL violated the Canadian Competition Act by
incorporating an employee no-solicitation and no-hiring clause in
the standard form franchise agreement all Tim Hortons franchisees
are required to sign.
The plaintiff seeks damages and restitution, on behalf of himself
and other members of the class.
Restaurant Brands said, "While we currently believe this claim is
without merit, we are unable to predict the ultimate outcome of
this case or estimate the range of possible loss, if any."
No further updates were provided in the Company's SEC report.
Restaurant Brands International Limited Partnership operates and
franchises quick service restaurants. The company operates through
three segments: Tim Hortons, Burger King, and Popeyes. The company
was formerly known as New Red Canada Limited Partnership and
changed its name to Restaurant Brands International Limited
Partnership in December 2014. The company was founded in 1954 and
is headquartered in Toronto, Canada. Restaurant Brands
International Limited Partnership is a subsidiary of Restaurant
Brands International Inc.
RESTAURANTS BRANDS: Suits Over Data Collection Underway in Canada
-----------------------------------------------------------------
Restaurant Brands International Limited Partnership said in its
Form 10-Q Report filed with the Securities and Exchange Commission
on October 28, 2020, for the quarterly period ended September 30,
2020, that the company is a named defendant in class action suits
in Canada related to its alleged collection of geolocation data
through the Tim Hortons mobile application.
On June 30, 2020, a class action complaint was filed against
Restaurant Brands International Inc., Restaurant Brands
International Limited Partnership and The TDL Group Corp. in the
Quebec Superior Court by Steve Holcman, individually and on behalf
of all Quebec residents who downloaded the Tim Hortons mobile
application.
On July 2, 2020, a Notice of Action related to a second class
action complaint was filed against Restaurant Brands International
Inc., in the Ontario Superior Court by Ashley Sitko and Ashley
Cadeau, individually and on behalf of all Canadian residents who
downloaded the Tim Hortons mobile application.
On August 31, 2020, a notice of claim was filed against Restaurant
Brands International Inc. in the Supreme Court of British Columbia
by Wai Lam Jacky Law on behalf of all persons in Canada who
downloaded the Tim Hortons mobile application or the Burger King
mobile application.
On September 30, 2020, a notice of action was filed against
Restaurant Brands International Inc., Restaurant Brands
International Limited Partnership, The TDL Group Corp., Burger King
Worldwide, Inc. and Popeyes Louisiana Kitchen, Inc. in the Ontario
Superior Court of Justice by William Jung on behalf of a to be
determined class.
All of the complaints allege that the defendants violated the
plaintiff’s privacy rights, the Personal Information Protection
and Electronic Documents Act, consumer protection and competition
laws or app-based undertakings to users, in each case in connection
with the collection of geolocation data through the Tim Hortons
mobile application, and in certain cases, the Burger King and
Popeyes mobile applications.
Each plaintiff seeks injunctive relief and monetary damages for
himself or herself and other members of the class.
Restaurant Brands said, "These cases are in preliminary stages and
we intend to vigorously defend against these lawsuits, but we are
unable to predict the ultimate outcome of any of these cases or
estimate the range of possible loss, if any."
Restaurant Brands International Limited Partnership operates and
franchises quick service restaurants. The company operates through
three segments: Tim Hortons, Burger King, and Popeyes. The company
was formerly known as New Red Canada Limited Partnership and
changed its name to Restaurant Brands International Limited
Partnership in December 2014. The company was founded in 1954 and
is headquartered in Toronto, Canada. Restaurant Brands
International Limited Partnership is a subsidiary of Restaurant
Brands International Inc.
RICHARD ALEXANDER: Court Denies Bid to Certify Class as Moot
------------------------------------------------------------
In the class action lawsuit captioned as GIRISH MODI, v. RICHARD T.
ALEXANDER, Clerk of the State Court of Gwinnett County, Case No.
1:19-cv-05619-AJB (N.D. Ga.), the Hon. Judge Alan J. Baverman
entered an order:
1. denying the Plaintiff's motions for recusal and to amend;
2. dismissing without prejudice the Plaintiff's complaint for
lack of jurisdiction;
3. denying as moot the following pending motions including
the Plaintiff's Motion to Certify Class; Motion for
Judgment on the Pleadings; the Plaintiff's Motion to
Withdraw Motion for Judgment on the Pleadings; the
Plaintiff's Motion for a Three-Judge Court; the
Defendant's Motion to Dismiss for Failure to State a
Claim; the Plaintiff's Motion to Add Attorney General of
Georgia; the Plaintiff's Pro Se Motion for Leave to File
Amended Complaint; the Plaintiff's Motion for
Reconsideration; the Plaintiff's Emergency Motion for
Preliminary Injunctive Relief; the Plaintiff's Pro Se
Motion for Leave to Amend; the Plaintiff's Pro Se Third
Motion to Grant Leave to Amend; the Plaintiff's Renewed
Emergency Motion for Preliminary Injunctive Relief; and
the Plaintiff's construed Motion for Ruling on Pending
Motions.
The Court said it lacks jurisdiction over the complaint and must
dismiss it without prejudice. All other pending motions not
expressly ruled upon are denied as moot.
A copy of the Court's Order and Opinion is available from
PacerMonitor.com at https://bit.ly/36O6jAH at no extra charge.[CC]
ROUNDPOINT MORTGAGE: Class Allegations in Elbert Suit Struck
------------------------------------------------------------
In the case, AMYE ELBERT, Plaintiff, v. ROUNDPOINT MORTGAGE
SERVICING CORPORATION, Defendant, Case No. 20-cv-00250-MMC (N.D.
Cal.), Judge Maxine M. Chesney of the U.S. District Court for the
Northern District of California granted in part and denied in part
RoundPoint's Motion to Dismiss Plaintiff's Complaint or, in the
Alternative, Motion to Strike Class Allegations.
Elbert alleges that, in 2015, she purchased a home in Antioch,
California, through a loan secured by a Deed of Trust issued by an
Federal Housing Administration ("FHA")-approved lender and insured
by the FHA. She further alleges she sometimes makes mortgage
payments over the phone, and that, on those occasions, RoundPoint,
the loan servicer, charges her a fee. As examples, Elbert states
that, on Aug. 5, 2019, and again on Sept. 4, 2019, RoundPoint
"charged" her a $12 "Pay-to-Pay Fee" for making a payment over the
phone, which fees, according to Elbert, were not authorized under
the terms of the Deed of Trust.
Based on these allegations, Elbert asserts, on her own behalf and
on behalf of a putative class, three Counts under state law,
specifically, a claim for breach of contract, a claim under the
Rosenthal Fair Debt Collection Practices Act, and a claim under
California's Unfair Competition Law ("UCL").
In its motion, RoundPoint argues each Count asserted by Elbert is
subject to dismissal for failure to state claim, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, and, in the
alternative, that certain portions of the complaint should be
stricken, pursuant to Rule 12(f) and Rule 23(d)(1)(D).
In Count I, Elbert alleges RoundPoint breached the terms of the
Deed of Trust by charging her Pay-to-Pay fees. RoundPoint argues
Elbert has failed to identify any provision in the Deed of Trust
precluding it from charging such fees.
Judge Chesney disagrees. She finds that Elbert has alleged
sufficient facts to support a finding that RoundPoint, by charging
her a fee not authorized by the Secretary, violated the "Loan
Charges" section in the Deed of Trust. Elbert has also alleged
sufficient facts to support a finding that the Pay-to-Pay fees she
was charged are not allowed under the terms of the contract.
Accordingly, Count I is not subject to dismissal.
In Count II, Elbert asserts RoundPoint has violated the Rosenthal
Act, which Act provides that no debt collector will collect or
attempt to collect a consumer debt by means of various specified
practices. RoundPoint argues Elbert's claim is subject to
dismissal because, RoundPoint asserts, Elbert has not alleged any
mortgage payment she made by telephone was, at the time of such
payment, due or owing. In her opposition, Elbert cites to Sanders
v. LoanCare LLC, in which the plaintiff alleged she made a payment
within a "grace period," which payment, the district court held,
was made when it was, for purposes of the Rosenthal Act, "due and
owing."
Even assuming a payment within a grace period can be considered
"due and owing," however, Elbert has not identified any relevant
document providing for a grace period, let alone that she made any
telephonic payment within any such period, Judge Chesney opines.
Accordingly, Count II is subject to dismissal.
In Count III, Elbert alleges the Defendant has violated Section
17200 of the California Business & Professions Code, which section
prohibits any unlawful, unfair or fraudulent business act or
practice. Specifically, Elbert alleges, RoundPoint's Pay-to-Pay
fees are "unlawful" and "unfair." To the extent Count III is based
on the allegation that the collection of Pay-to-Pay fees is
unlawful, the claim, as pleaded, is wholly derivative of the
Rosenthal Act, and, consequently, is subject to dismissal with
respect to Count II, rules Judge Chesney.
To the extent Count III is based on the allegation that the
collection of Pay-to-Pay fees is unfair, RoundPoint argues the
claim is conclusory, and the Judge agrees. Elbert has not
identified a public policy implicated by Pay-to-Pay fees, nor has
she pleaded facts sufficient to show the collection of such fees is
immoral, unethical, oppressive or unscrupulous. Although she
alleges the fees charged are well above the actual cost of
providing phone payments service, she includes insufficient facts
to support such allegation. Accordingly, Count III is subject to
dismissal.
RoundPoint contends the first three numbered paragraphs of the
complaint should be stricken, on the ground those paragraphs are
vague and inflammatory and are irrelevant to Elbert's experiences
and claims. As Elbert points out, however, the allegations therein
are limited to and summarize the claims Elbert is making.
Accordingly, the first three numbered paragraphs will not be
stricken.
RoundPoint next argues the putative class allegations should be
stricken pursuant to Rule 23(d), under which Rule a court may issue
orders that require that the pleadings be amended to eliminate
allegations about representation of absent persons. In that
regard, RoundPoint is, in essence, contending Elbert cannot show
there are questions of law or fact common to the putative class or
that her claims or defenses are typical of the claims or defenses
of the putative class.
Although, as Elbert points out, a motion to strike class
allegations is rarely granted, Judge Chesney finds the instant case
is one of the rare cases in which the complaint indicates that the
class requirements cannot possibly be met. The class consists of
all borrowers whose loans were serviced by RoundPoint, irrespective
of whether those loans were insured by the FHA, and Elbert does not
allege RoundPoint only services loans insured by the FHA.
Moreover, although the class definition includes persons who made
payments by the internet, nothing in the complaint suggests
RoundPoint charges a fee to persons who make payments in that
manner. Accordingly, the class allegations will be stricken.
For the reasons she stated, Judge Chesney graneed in part and
denied in part RoundPoint's motion. To the extent RoundPoint seeks
dismissal of Counts II and III, the motion is granted. To the
extent RoundPoint seeks an order striking the class allegations,
the motion is granted. In all other respects, the motion is
denied.
If Elbert wishes to amend for purposes of curing any or all of the
deficiencies identified, the Court ordered Elbert to file her First
Amended Complaint no later than Sept. 10, 2020. In light of the
foregoing, the Case Management Conference is continued from Sept.
4, 2020 to Dec. 4, 2020, at 10:30 a.m. A Joint Case Management
Statement will be filed no later than Nov. 27, 2020.
A full-text copy of the Court's Aug. 19, 2020 Order is available at
https://tinyurl.com/y62z83zp from Leagle.com.
RYDER SYSTEM: Putative Securities Class Suit in Florida Ongoing
---------------------------------------------------------------
Ryder System, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 30, 2020, that the company
continues to defend a putative securities class action suit in the
U.S. District Court for the Southern District of Florida.
On May 20, 2020, a putative class action on behalf of purchasers of
the company's securities who purchased or otherwise acquired their
securities between July 23, 2015 and February 13, 2020, inclusive
(the "Class Period"), was commenced against Ryder and certain of
its current and former officers in the U.S. District Court for the
Southern District of Florida, captioned Key West Policy & Fire
Pension Fund v. Ryder System, Inc., et al.
The complaint alleges, among other things, that the defendants
misrepresented Ryder's depreciation policy and residual value
estimates for its vehicles during the Class Period in violation of
Section 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder, and seeks to recover, among
other things, unspecified compensatory damages and attorneys' fees
and costs.
On August 3, 2020, the State of Alaska, Alaska Permanent Fund, the
City of Fort Lauderdale General Employees' Retirement System, and
the City of Plantation Police Officers Pension Fund were appointed
lead plaintiffs.
On October 5, 2020, the lead plaintiffs filed an amended
complaint.
Ryder System, Inc., commonly known as Ryder, is an American
provider of transportation and supply chain management products,
and is especially known for its fleet of rental trucks. Ryder
specializes in fleet management, supply chain management, and
dedicated contracted carriage.
SAFE HAVEN: Settlement in Martin FLSA Suit Gets Court Approval
--------------------------------------------------------------
In the case, ISAIAH MARTIN, et al., Plaintiffs, v. SAFE HAVEN
SECURITY SERVICES, INC., Defendant, Case No. 19-CV-00063-ODS (W.D.
Mo.), Judge Ortrie D. Smith of the U.S. District Court for the
Western District of Missouri, Western Division, (i) granted the
parties' Motion to Approve Collective Action Settlement; and (ii)
granted in part and denied in part the Plaintiffs' Application for
Attorneys' Fees.
In January 2019, the Plaintiffs filed the lawsuit on behalf of
themselves and a putative class of "inside sales representatives"
against Defendant Safe Haven for alleged violations of the Fair
Labor Standards Act ("FLSA"). In September 2019, the Court
conditionally certified a collective action of all current and
former sales representatives who worked for the Defendant at any
time from Sept. 19, 2016, to the present, at the Defendant's place
of business in Kansas City, Missouri, who were not properly
compensated for all time worked in excess of 40 hours in a
workweek. The putative collective action members were notified and
required to submit their consent to join forms by Jan. 6, 2020.
On July 17, 2020, the parties jointly moved for the Court's
approval of their settlement of this matter. Nothing was filed in
response to the parties' motion, and the deadline to do so has
passed. Also pending is the Plaintiffs' application for attorneys'
fees, which the Defendant opposes.
On July 17, 2020, the parties executed a Collective Action
Settlement Agreement. The Settlement Agreement provides
compensation to the Settlement Class, which is defined as follows:
All current and former sales representatives who worked for
Defendant at any time from Sept. 19, 2016, to the present, at thhe
Defendant's place of business in Kansas City, Missouri, and who
timely exercised their right and option to opt into the Action and
have not been Dismissed by the Court. The Settlement Class also
includes Frank Musquiz, Steven Nimmo, Charmaine Payne, Jonathan
Poindexter, Lauryn White, Alvinesha Wynn, and Carol Foster, whose
claims the Court dismissed without prejudice on May 14, 2020.
The 59 Settlement Class members will receive a total of $375,000,
which will be distributed on a pro rata basis among the Settlement
Class members based on rate of pay and length of employment with
the Defendant during the class period. Except for the adjustments
discussed infra, each Settlement Class member will receive
approximately 8.14 hours of overtime compensation along with an
equal amount apportioned for statutory liquidated damages for each
week worked for the Defendant during the Class Period. Thirteen
Settlement Class members will receive 75% of their pro rata
distribution due to failure to appear at their scheduled
depositions. The Settlement Payment also includes service awards,
which are discussed infra. In exchange for the Settlement Payment,
the Settlement Class members release all wage and hour claims they
asserted (or could have asserted) against the Defendant in the
matter.
Judge Smith approves the parties' settlement in accordance with the
FLSA as fair, reasonable, and adequate. He concludes the
settlement is in the best interests of the Settlement Class
members, especially in the light of the benefits to the Settlement
Class members. He also determines the consideration provided under
the Settlement Agreement constitutes reasonable and fair value
given in exchange for the release of claims against the Defendant.
For purposes of the settlement, Judge Smith designates Isaiah
Martin and Kirk Kincaid as the representatives of the Settlement
Class. The Settlement Payment includes a $10,000 service award for
Martin and a $5,000 service award for Kincaid. The parties also
request a $500 service award for each Settlement Class member who
was deposed. Upon consideration of the relevant factors, the Judge
finds service awards of $10,000 to Martin, $5,000 to Kincaid, and
$500 to each Settlement Class member who was deposed are warranted.
Judge Smith also concludes the requested amounts are reasonable
and appropriate in these circumstances. Thus, he grants the
service award requests. The Defendant will deliver the service
awards pursuant to the terms of the Settlement Agreement.
For purposes of the settlement, Judge Smith appoints Marc N.
Middleton, Ryan M. Paulus, and Megan Lowe Stiles of Cornerstone Law
Firm as the Class Counsel. The Plaintiffs and the Class Counsel
seek recovery of $7,956.30 for costs incurred in this matter. The
Defendant does not oppose the request for costs or the amount of
costs requested. The Settlement Payment does not provide for
costs, and the parties have agreed to be bound by the Court's award
of costs.
The Class Counsel provided an itemized list of costs and expenses,
which the Judge reviewed. He grants the Class Counsel's request
for costs and awards Class Counsel $7,956.30 in costs. The
Defendant will deliver payment to the Class Counsel for costs
pursuant to the Settlement Agreement's terms.
Pursuant to the Settlement Agreement, the Defendant will deliver to
the Class Counsel the Settlement Payment within 60 days of the
Order in the form of an individual check for each Settlement Class
member pursuant to the settlement allocations attached to the
Settlement Agreement. The Class Counsel will administer the
settlement and bear the costs and expenses associated with
administering the settlement and distributing the Settlement
Payment.
Upon receipt of the Settlement Payment, the Class Counsel will
promptly distribute the Settlement Payment to the Settlement Class
members along with a Notice, which is attached to the Settlement
Agreement. The Notice informs Settlement Class members of their
eligibility to participate in the settlement by cashing the check,
and they will only be bound by the settlement if they cash their
checks. The Notice also advises Settlement Class members that they
must cash the check within 120 days of the date the Notice is sent.
The 120-day deadline will be bolded and underlined in the Notice.
Because they were unable to agree to the appropriate amount of fees
to be awarded to the Plaintiffs' counsel, the parties briefed the
issue for the Court. The Class Counsel asks the Court to award to
$1,098,223.04 in attorneys' fees. The Defendant opposes the amount
of fees sought and suggests an attorneys' fee award of $125,000 is
appropriate in the matter.
Judge Smith concludes the Class Counsel has not met its burden of
establishing the hourly rates the Class Counsel requested. He
finds a reasonable hourly rate for Middleton and Paulus is $500, a
reasonable hourly rate for Stiles is $300, and a reasonable hourly
rate for the Class Counsel's paralegals is $150.
When reviewing the Class Counsel's time records, Judge Smith found
a few errors. First, Paulus billed 30 minutes for a pretrial
conference on Feb. 7, 2020, but no pretrial conference was held on
that date in the matter. On March 30, 2020, both Paulus and
Middleton billed one-tenth of an hour for reviewing a text order,
but no text order was issued that day. These entries are both
errors, and the Court will reduce the Class Counsel's request for
motion for fees accordingly.
When multiplying the hours reasonably expended by the Class Counsel
and the Class Counsel's paralegals by the reasonable hourly rates
determined, Judge Smith arrives at the total lodestar in the amount
of $432,837.
The Class Counsel suggests the Court multiplies the lodestar by two
so that the Class Counsel is adequately compensated for accepting
the matter on a contingent fee arrangement. The Court holds that
the matter presented a relatively straightforward legal issue:
whether the Plaintiffs were compensated for overtime worked. Once
the necessary documents were obtained, the Class Counsel had to
calculate the hours of overtime worked by the Plaintiffs, determine
whether the Plaintiffs were compensated, in whole or in part, for
overtime worked, and how much the Plaintiffs were owed. The Court
finds the Class Counsel's work is accurately reflected in the time
and hourly rates, and there is insufficient justification for
applying a multiplier. Accordingly, Judge Smith denies the
Plaintiff's request to apply a multiplier to the lodestar.
Accordingly, Judge Smith granted the parties' Motion to Approve the
Collective Action Settlement. He designated Martin and Kincaid as
the representative Plaintiffs and approved service awards of
$10,000 to Martin, $5,000 to Kincaid, and $500 to each Settlement
Class member who was deposed. He appointed the Class Counsel,
awarded costs in the amount of $7,956.30, and awarded attorneys'
fees in the amount of $432,837.
Within five business days of receiving the Settlement Payment and
payment for the Court-ordered attorneys' fees and costs, the
parties will file a joint stipulation of dismissal.
A full-text copy of the Court's Aug. 19, 2020 Order & Opinion is
available at https://tinyurl.com/yym6l5h8 from Leagle.com.
SAN FRANCISCO: Underpays Registered Nurses, Silloway et al. Claim
-----------------------------------------------------------------
KRISTEN SILLOWAY, CHRISTA DURAN, BRIGITTA VAN EWIJK, and those
similarly situated, Plaintiffs v. CITY & COUNTY OF SAN FRANCISCO,
Defendant, Case No. 3:20-cv-07400 (N.D. Cal., October 22, 2020)
bring this complaint against the Defendant for its alleged
violation of the Fair Labor Standards Act.
According to the complaint, the Plaintiffs, who were employed by
the Defendants as registered nurses, performed substantively
identical work for more than 40 hours per week without being
properly compensated for their overtime hours performed. Instead,
the Plaintiffs and other similarly situated registered nurses were
paid by the Defendant the straight-time hourly rate for each hour
worked.
Allegedly, the Defendant has consistently failed and continues to
fail, to properly compensate the Plaintiffs and other similarly
situated registered nurses at the FLSA-mandated rate of not less
than one and one-half times their regular rate of pay for all hours
worked in excess of 40 per workweek or 80 hours per pay period.
City and County of San Francisco is a political entity created
pursuant to the laws of the State of California. [BN]
The Plaintiffs are represented by:
Matthew J. Gauger, Esq.
Kerianne R. Steele, Esq.
Benjamin J. Fuchs, Esq.
WEINBERG, ROGER & ROSENFELD
A Professional Corporation
1001 Marina Village Parkway, Ste. 200
Alameda, CA 94501
Tel: (510) 337-1001
Fax: (510) 337-1023
E-mail: courtnotices@unioncounsel.net
mgauger@unioncounsel.net
ksteele@unioncounsel.net
bfuchs@unioncounsel.net
SEABOARD CORP: Bid to Dismiss Pork Antitrust Litigation Denied
--------------------------------------------------------------
Seaboard Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 26, 2020, that the motion to
dismiss the class action suit entitled, In re Pork Antitrust
Litigation, has been denied.
On June 28, 2018, Wanda Duryea and eleven other indirect purchasers
of pork products, acting on behalf of themselves and a putative
class of indirect purchasers of pork products, filed a class action
complaint in the U.S. District Court for the District of Minnesota
(the "District Court") against several pork processors, including
Seaboard Foods LLC and Agri Stats, Inc., a company described in the
complaint as a data sharing service.
Subsequent to the filing of this initial complaint, additional
class action complaints making similar claims on behalf of putative
classes of direct and indirect purchasers were filed in the
District Court.
The complaints were amended and consolidated for pre-trial
purposes, into three consolidated putative class actions brought on
behalf of (a) direct purchasers, (b) consumer indirect purchasers
and (c) commercial and institutional indirect purchasers. The
amended complaints named Seaboard Corporation as an additional
defendant.
The consolidated actions are styled In re Pork Antitrust
Litigation. Subsequent to the original filings, two additional
actions making similar claims, including one by the Commonwealth of
Puerto Rico, were brought in or transferred to the District Court.
The complaints alleged, among other things, that beginning in
January 2009, the defendants conspired and combined to fix, raise,
maintain, and stabilize the price of pork products in violation of
U.S. antitrust laws by coordinating their output and limiting
production, allegedly facilitated by the exchange of non-public
information about prices, capacity, sales volume and demand through
Agri Stats, Inc.
The complaints on behalf of the putative classes of indirect
purchasers also included causes of action under various state laws,
including state antitrust laws, unfair competition laws, consumer
protection statutes and state common law claims for unjust
enrichment.
The complaints also alleged that the defendants concealed this
conduct from the plaintiffs and the members of the putative
classes.
The relief sought in the respective complaints includes treble
damages, injunctive relief, pre- and post-judgment interest, costs
and attorneys' fees on behalf of the putative classes.
On August 8, 2019, the District Court granted defendants' motion to
dismiss the class action cases while giving the plaintiffs leave to
amend. The classes and the other two plaintiffs filed amended
complaints in November and December 2019. In addition to amending
the original claims, the consumer indirect purchasers have asserted
a new claim alleging that the exchange of information by defendants
through Agri Stats Inc. unreasonably restrained trade.
On October 16, 2020, the defendants' pending motion to dismiss the
amended complaints was denied.
Seaboard intends to defend these cases vigorously.
Seaboard Corporation operates as a diverse agribusiness and
transportation company worldwide. The company's Pork division
produces and sells fresh pork products, such as loins, tenderloins,
and ribs, as well as frozen pork products to further processors,
food service operators, grocery stores, distributors, and retail
outlets. Seaboard Corporation was founded in 1918 and is
headquartered in Merriam, Kansas.
SEALED AIR: Bid to Nix UA Local 13's Securities Class Suit Pending
------------------------------------------------------------------
Sealed Air Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 28, 2020, for the
quarterly period ended September 30, 2020, that the company's
motion to dismiss filed in the putative class action suit initiated
by UA Local 13 & Employers Group Insurance Fund, remains pending.
On November 1, 2019, purported Company stockholder UA Local 13 &
Employers Group Insurance Fund filed a putative class action
complaint in the United States District Court for the Southern
District of New York against the Company and certain of its current
and former officers.
On June 4, 2020, the complaint was amended to remove all individual
defendants other than the Company's former CFO and to add a
plaintiff, and on July 13, 2020, the complaint was further amended
to identify a total of four plaintiffs.
The complaint alleges violations of Sections 10(b) and 20(a) of the
Exchange Act and Rule 10b-5 thereunder based on allegedly false and
misleading statements and omissions concerning the Company's hiring
of Ernst & Young LLP as its independent auditors and concerning the
Company’s corporate policies and procedures.
The plaintiffs seek to represent a class of purchasers of the
Company's common stock between November 17, 2014 and June 20, 2019.
The complaint seeks, among other things, unspecified compensatory
damages, including interest, and attorneys' fees and costs.
On September 4, 2020, the Company filed a motion to dismiss the
complaint, and after briefing the motion, will await a decision by
the court.
Sealed Air Corporation provides food safety and security, and
product protection solutions worldwide. It was founded in 1960 and
is headquartered in Charlotte, North Carolina.
SEI INVESTMENTS: Suits Over SPTC Services to Stanford Ongoing
-------------------------------------------------------------
SEI Investments Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 26, 2020, for the
quarterly period ended September 30, 2020, that the company and SEI
Private Trust Company (SPTC) continue to defend several class
action suits related to SPTC's services to Stanford Trust Company.
SEI has been named in seven lawsuits filed in Louisiana courts;
four of the cases also name SEI Private Trust Company (SPTC) as a
defendant.
The underlying allegations in all actions relate to the purported
role of SPTC in providing back-office services to Stanford Trust
Company. The complaints allege that SEI and SPTC participated in
some manner in the sale of "certificates of deposit" issued by
Stanford International Bank so as to be a "seller" of the
certificates of deposit for purposes of primary liability under the
Louisiana Securities Law or so as to be secondarily liable under
that statute for sales of certificates of deposit made by Stanford
Trust Company.
Two of the actions also include claims for violations of the
Louisiana Racketeering Act and possibly conspiracy, and a third
also asserts claims of negligence, breach of contract, breach of
fiduciary duty, violations of the uniform fiduciaries law,
negligent misrepresentation, detrimental reliance, violations of
the Louisiana Racketeering Act, and conspiracy.
The procedural status of the seven cases varies. The Lillie case,
filed originally in the 19th Judicial District Court for the Parish
of East Baton Rouge, was brought as a class action and is
procedurally the most advanced of the cases.
SEI and SPTC filed exceptions, which the Court granted in part,
dismissing claims under the Louisiana Unfair Trade Practices Act
and permitting the claims under the Louisiana Securities Law to go
forward.
On March 11, 2013, newly-added insurance carrier defendants removed
the case to the United States District Court for the Middle
District of Louisiana.
On August 7, 2013, the Judicial Panel on Multidistrict Litigation
transferred the matter to the Northern District of Texas where MDL
2099, In re: Stanford Entities Securities Litigation ("the Stanford
MDL"), is pending.
On September 22, 2015, the District Court on the motion of SEI and
SPTC dismissed plaintiffs' claims for primary liability under
Section 714(A) of the Louisiana Securities Law, but declined to
dismiss plaintiffs' claims for secondary liability under Section
714(B) of the Louisiana Securities Law based on the allegations
pled by plaintiffs.
On November 4, 2015, the District Court granted SEI and SPTC's
motion to dismiss plaintiffs' claims under Section 712(D) of the
Louisiana Securities Law.
Consequently, the only claims of plaintiffs remaining in Lillie are
plaintiffs' claims for secondary liability against SEI and SPTC
under Section 714(B) of the Louisiana Securities Law. On May 2,
2016, the District Court certified the class as being "all persons
for whom Stanford Trust Company purchased or renewed Stanford
Investment Bank Limited certificates of deposit in Louisiana
between January 1, 2007 and February 13, 2009". Notice of the
pendency of the class action was mailed to potential class members
on October 4, 2016.
On December 1, 2016, a group of plaintiffs who opted out of the
Lillie class filed a complaint against SEI and SPTC in the United
States District Court in the Middle District of Louisiana ("Ahders
Complaint"), alleging claims essentially the same as those in
Lillie.
In January 2017, the Judicial Panel on Multidistrict Litigation
transferred the Ahders proceeding to the Northern District of Texas
and the Stanford MDL.
During February 2017, SEI and SPTC filed their response to the
Ahders Complaint, and in March 2017 the District Court for the
Northern District of Texas approved the stipulated dismissal of all
claims in this Complaint predicated on Section 712(D) or Section
714(A) of the Louisiana Securities Law.
In both cases, as a result of the proceedings in the Northern
District of Texas, only the plaintiffs’ secondary liability
claims under Section 714(B) of the Louisiana Securities Law remain.
Limited discovery and motions practice have occurred, including SEI
and SPTC’s filing of a dispositive summary judgment motion in the
Lillie proceeding. On January 31, 2019, the Judicial Panel on
Multidistrict Litigation remanded the Lillie and Ahders proceedings
to the Middle District of Louisiana.
With respect to the Lillie proceeding, on July 9, 2019, the
District Court issued an order granting SEI's Summary Judgment
Motion to dismiss the remaining Section 714(B) claim and denying
Plaintiffs’ Motion for Continuance of SEI and SPTC's Motion for
Summary Judgment pursuant to Rule 56(d). On July 17, 2019,
Plaintiffs filed a Motion for Reconsideration and/or New Trial.
The Court denied Plaintiffs' Motion for Reconsideration and/or New
Trial and entered a Final Judgment in favor of SEI and SPTC on
August 15, 2019. On August 27, 2019, Plaintiffs-Appellants filed a
Notice of Appeal to the United States Court of Appeals for the
Fifth Circuit of the District Court's dismissal of the Lillie
matter.
On November 20, 2019, Plaintiffs-Appellants filed a Motion in
Support of the Notice of Appeal. On January 17, 2020, SEI and SPTC
timely filed their brief in opposition to the
Plaintiffs-Appellants' motion for appeal. On February 7, 2020,
Plaintiffs- Appellants filed their reply brief. The parties are
currently waiting for oral argument to be scheduled.
With respect to the Ahders proceeding, on July 16, 2019, SEI and
SPTC filed a Motion for Summary Judgment pursuant to Rule 56(d) to
have the remaining Section 714(B) claim dismissed. On January 24,
2020, the District Court issued an order granting SEI's Summary
Judgment Motion to dismiss the remaining Section 714(B) claim.
On March 17, 2020, Plaintiffs-Appellants filed a Notice of Appeal
to the United States Court of Appeals for the Fifth Circuit of the
District Court's dismissal of the Ahders matter. Similar to the
Lillie matter, all motions and briefs in support of the parties'
positions have been filed and the parties are currently waiting for
oral argument to be scheduled.
Another case, filed in the 23rd Judicial District Court for the
Parish of Ascension, also was removed to federal court and
transferred by the Judicial Panel on Multidistrict Litigation to
the Northern District of Texas and the Stanford MDL. The schedule
for responding to that Complaint has not yet been established.
Two additional cases remain in the Parish of East Baton Rouge.
Plaintiffs filed petitions in 2010 and have granted SEI and SPTC
indefinite extensions to respond. No material activity has taken
place since.
In two additional cases, filed in East Baton Rouge and brought by
the same counsel who filed the Lillie action, virtually all of the
litigation to date has involved motions practice and appellate
litigation regarding the existence of federal subject matter
jurisdiction under the federal Securities Litigation Uniform
Standards Act (SLUSA). The matters were removed to the United
States District Court for the Northern District of Texas and
consolidated.
The court then dismissed the action under SLUSA. The Court of
Appeals for the Fifth Circuit reversed that order, and the Supreme
Court of the United States affirmed the Court of Appeals judgment
on February 26, 2014. The matters were remanded to state court and
no material activity has taken place since that date.
SEI said, "While the outcome of this litigation remains uncertain,
SEI and SPTC believe that they have valid defenses to plaintiffs'
claims and intend to defend the lawsuits vigorously. Because of
uncertainty in the make-up of the Lillie class, the specific
theories of liability that may survive a motion for summary
judgment or other dispositive motion, the relative lack of
discovery regarding damages, causation, mitigation and other
aspects that may ultimately bear upon loss, the Company is not
reasonably able to provide an estimate of loss, if any, with
respect to the foregoing lawsuits."
SEI Investments Company is a publicly owned asset management
holding company. Through its subsidiaries, the firm provides wealth
management, retirement and investment solutions, asset management,
asset administration, investment processing outsourcing solutions,
financial services, and investment advisory services to its
clients. SEI Investments Company was founded in 1968 and is based
in Oaks, Pennsylvania.
SELECT PORTFOLIO: Initial Approval of Class Settlement Sought
-------------------------------------------------------------
In the class action lawsuit captioned as THERESA GAFFNEY,
individually and on behalf of all others similarly situated, v.
SELECT PORTFOLIO SERVICING, INC., Case No. 3:18-cv-12233-BRM-ZNQ
(D.N.J.), the Plaintiff Theresa Gaffney asks the Court for an order
granting preliminary approval of the Parties' Class Settlement
Agreement on behalf of a class consisting of:
"all consumers with properties in New Jersey who were 30 or
more days past due on their mortgage loans when SPS began
servicing their loans, and to whom SPS sent monthly mortgage
statements from July 31, 2017 through December 31, 2019,
after a foreclosure judgment was entered with respect to
their loans, and where the note rate in the monthly
statements was in excess of the then-applicable post-judgment
interest rate under New Jersey R. 4:42-11."
Select Portfolio is a loan servicing company founded in 1989 as
Fairbanks Capital Corp. with operations in Salt Lake City, Utah and
Jacksonville, Florida.
A copy of the unnopposed motion for an order granting preliminary
approval of class settlement agreement is available from
PacerMonitor.com at https://bit.ly/34zkdUu at no extra charge.[CC]
The Plaintiff is represented by:
Ari H. Marcus, Esq.
MARCUS & ZELMAN, LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Telephone: (732) 695-3282
Facsimile: (732) 298-6256
E-mail: Ari@MarcusZelman.com
SIX FLAGS: Bid to Nix Electrical Workers Pension Fund Suit Pending
------------------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 28,
2020, for the quarterly period ended September 30, 2020, that the
motion to dismiss filed in the Electrical Workers Pension Fund
Local 103 I.B.E.W. v. Six Flags Entertainment Corp., et al., is
pending.
In February 2020, two putative securities class action complaints
were filed against the company (Holdings) and certain of its former
executive officers in the U.S. District Court for the Northern
District of Texas.
On March 2, 2020, the two cases were consolidated in an action
captioned Electrical Workers Pension Fund Local 103 I.B.E.W. v. Six
Flags Entertainment Corp., et al., Case No. 4:20-cv-00201-P (N.D.
Tex.) (the "Electrical Workers litigation"), and an amended
complaint was filed on March 20, 2020.
On May 8, 2020, Oklahoma Firefighters Pension and Retirement System
and Electrical Workers Pension Fund Local 103 I.B.E.W. were
appointed as lead plaintiffs, Bernstein Litowitz Berger & Grossman
LLP was appointed as lead counsel, and McKool Smith PC was
appointed as liaison counsel. On July 2, 2020, lead plaintiffs
filed a consolidated complaint.
The consolidated complaint alleges, among other things, that the
defendants made materially false or misleading statements or
omissions regarding the Company's business, operations and growth
prospects, specifically with respect to the development of its Six
Flags branded parks in China and the financial health of its
partner, Riverside Investment Group Co. Ltd., in violation of the
federal securities laws.
The consolidated complaint seeks compensatory damages and other
relief on behalf of a putative class of purchasers of Holdings’
publicly traded common stock during the period between April 24,
2018 and February 19, 2020.
On August 3, 2020, defendants filed a motion to dismiss the
consolidated complaint.
Six Flags said, "We believe that these lawsuits are without merit
and intend to defend this litigation vigorously. However, there can
be no assurance regarding the ultimate outcome of the lawsuit."
No further updates were provided in the Company's SEC report.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SIX FLAGS: Discovery Kingdom Employees' Suit Ongoing
----------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 28,
2020, for the quarterly period ended September 30, 2020, that Magic
Mountain LLC, continues to defend purported class action suits in
the Superior Court of Los Angeles County, California, initiated by
current and former employees of Six Flags Discovery Kingdom.
On September 18, 2019, a complaint was filed against Magic Mountain
LLC in the Superior Court of Los Angeles County, California, on
behalf of a purported class of current and former employees of Six
Flags Discovery Kingdom.
An amended complaint was filed on November 24, 2019.
On May 27, 2020, a copycat complaint was filed by the same law firm
on behalf of a different named plaintiff alleging identical causes
of action. The complaints allege violations of California law
governing payment of wages, wage statements, and background checks,
and seeks statutory damages under California law as well as under
the Private Attorneys General Act, and attorneys' fees costs.
Six Flags said, "We intend to vigorously defend ourselves against
this litigation. Since this litigation is in an early stage, the
outcome is currently not determinable and a reasonable estimate of
loss or range of loss cannot be made."
No further updates were provided in the Company's SEC report.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SIX FLAGS: Settlement Reached in Refund Related Class Suits
-----------------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 28,
2020, for the quarterly period ended September 30, 2020, that the
parties in the purported class action suit related to the illegal
charge the company made to members and season passholders while
parks were closed and did not provide refunds for the amounts
charged, have agreed to a settlement in principle.
Since COVID-19 began affecting the operations of the company's
parks in mid-March 2020, three similar purported class action
complaints were filed against the company (Holdings) or one of its
subsidiaries in the United States District Court for the Central
District of California on April 10, 2020, April 13, 2020, and April
21, 2020.
These complaints allege that the company, in violation of
California law, charged members and season passholders while the
parks were closed and did not provide refunds for the amounts
charged.
The complaints seek compensatory damages, punitive damages,
restitution, and unspecified injunctive relief.
On September 9, 2020, the parties agreed to a settlement in
principle to resolve the lawsuits, for an immaterial amount, which
is subject to preliminary and final approval by the court.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SIX FLAGS: Suit Against Park Management Corp. Ongoing
-----------------------------------------------------
Six Flags Entertainment Corporation said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 28,
2020, for the quarterly period ended September 30, 2020, that Park
Management Corp. continues to defend a purported class action suit
initiated by current and former employees of Six Flags Discovery
Kingdom.
On February 20, 2020, a complaint was filed against Park Management
Corp. in the Superior Court of Solano County, California, on behalf
of a purported class of current and former employees of Six Flags
Discovery Kingdom.
The complaint alleges violations of California law governing
payment of wages, wage statements, and background checks, and seeks
statutory damages under California law and attorneys' fees costs.
Six Flags said, "We intend to vigorously defend ourselves against
this litigation. Since this litigation is in an early stage, the
outcome is currently not determinable and a reasonable estimate of
loss or range of loss cannot be made."
No further updates were provided in the Company's SEC report.
Six Flags Entertainment Corporation, incorporated on December 9,
1997, is a regional theme park operator. The Company operates in
the theme parks segment. The Company operates approximately 19
regional theme and water parks. Its parks occupy approximately
4,500 acres of land. Its parks are located in geographically
diverse markets across North America. The company is based in Grand
Prairie, Texas.
SOUTHERN RESPONSE: Appeal Court Reduces Damages in Dodd Suit
------------------------------------------------------------
Stuff reports that a Christchurch couple locked in an ongoing legal
battle with state-owned quake insurer Southern Response says it is
sobering for a Court of Appeal decision to go their way, one decade
on from the harrowing earthquakes.
An earlier High Court decision found Southern Response guilty of
misleading and deceptive behaviour when it short-changed Karl and
Alison Dodds tens of thousands of dollars after their quake damaged
house was written off.
The Dodds say they were tricked into accepting a lower offer from
Southern Response only to later discover the insurer had kept
secret from them a second higher estimate to rebuild their damaged
house, a so-called second secret detailed repair and rebuild
analysis (DRA).
The High Court ordered Southern Response to pay the Dodds almost
$180,000 in damages, plus costs.
But the government appealed the decision, saying it needed clarity,
because of the thousands of similar cases it could be liable for.
The Court of Appeal reduced the damages Southern Response has to
pay $10,656.44 due to an earlier error in calculations.
Speaking to Checkpoint shortly after receiving the news, Karl said
he felt "cathartic" and a "whole bundle of emotions".
"Having the outcome in the middle of what is effectively the 10th
anniversary of the earthquakes is poignant and sobering and I think
what we and the others in Christchurch have gone through, has been
harrowing to say the least, and the post-traumatic effects of
having to deal with Southern Response have added to the trauma of
the earthquakes, and to bring it all to conclusion is brilliant
from our point of view and tremendous for the other 3000 people."
Karl Dodds said his wife Allison had been traumatised by the whole
experience -- from being shaken around the top of her work building
in the 22 February, 2011 earthquake, watching the CTV building
collapse, and then having to deal with Southern Response in the
aftermath.
He said decisions were made by the "highest level of the
organisation" and renewed his call for an inquiry into Southern
Response, by the likes of Dame Silvia Cartwright.
It would need to be similar to the inquiry into EQC, but with one
difference.
"EQC made a lot of mistakes, but they were really caught off guard.
Nobody expected the magnitude of the disaster. They were
understaffed, ill-equipped and perhaps one could say they did their
best, but with that said we spent the first two years battling EQC,
with letters flying backwards and forwards and getting more and
more fiery as we went.
"But with Southern Response they don't have the same excuse. They
came into existence after the disaster and therefore were
well-equipped to behave professionally and competently and this
they failed to do.
"When an independent person digs deep enough they will be able to
find all sorts of additional dubious practices of which we are well
aware, but we are not going to disclose at this point in time,
which will really push the whole case, as to their behaviour,
beyond another level."
Karl Dodds said Southern Response had a right to appeal and take
the case to the Supreme Court, but he hoped it wouldn't come to
that.
Both the minister responsible, Grant Robertson, and Southern
Response declined to be interviewed. Neither have ruled out
appealing the decision in the Supreme Court
Karl Dodds wished others in a similar position all the very best
with their battle against the insurer. [GN]
SOUTHWEST AIRLINES: Appeal in Airfare-Related Class Suit Ongoing
----------------------------------------------------------------
Southwest Airlines Co. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 30, 2020, that the appeal from a
lower court decision approving the settlement of the
airfare-related class suit remains pending even as objectors to the
settlement have opted to drop the appeal.
On July 1, 2015, a complaint was filed in the United States
District Court for the Southern District of New York on behalf of
putative classes of consumers alleging collusion among the Company,
American Airlines, Delta Air Lines, and United Airlines to limit
capacity and maintain higher fares in violation of Section 1 of the
Sherman Act.
Since then, a number of similar class action complaints were filed
in the United States District Courts for the Central District of
California, the Northern District of California, the District of
Columbia, the Middle District of Florida, the Southern District of
Florida, the Northern District of Georgia, the Northern District of
Illinois, the Southern District of Indiana, the Eastern District of
Louisiana, the District of Minnesota, the District of New Jersey,
the Eastern District of New York, the Southern District of New
York, the Middle District of North Carolina, the District of
Oklahoma, the Eastern District of Pennsylvania, the Northern
District of Texas, the District of Vermont, and the Eastern
District of Wisconsin.
On October 13, 2015, the Judicial Panel on Multi-District
Litigation centralized the cases to the United States District
Court in the District of Columbia.
On March 25, 2016, the plaintiffs filed a Consolidated Amended
Complaint in the consolidated cases alleging that the defendants
conspired to restrict capacity from 2009 to present. The plaintiffs
seek to bring their claims on behalf of a class of persons who
purchased tickets for domestic airline travel on the defendants'
airlines from July 1, 2011 to present. They seek treble damages,
injunctive relief, and attorneys' fees and expenses.
On May 11, 2016, the defendants moved to dismiss the Consolidated
Amended Complaint, and on October 28, 2016, the Court denied this
motion. On December 20, 2017, the Company reached an agreement to
settle these cases with a proposed class of all persons who
purchased domestic airline transportation services from July 1,
2011, to the date of the settlement.
The Company agreed to pay $15 million and to provide certain
cooperation with the plaintiffs as set forth in the settlement
agreement. The Court granted preliminary approval of the settlement
on January 3, 2018, and the plaintiffs provided notice to the
proposed settlement class. The Court held a fairness hearing on
March 22, 2019, and it issued an order granting final approval of
the settlement on May 9, 2019.
On June 10, 2019, three sets of objectors filed notices of appeal
to the United States Court of Appeals for the District of Columbia
Circuit. Two sets of the objectors dismissed their appeals, and the
Company and the other settling parties moved to dismiss the
remaining appeal because the district court did not certify the
approval order as appealable.
The court of appeals has ordered the parties to brief the
jurisdictional issue and the merits of the objections raised in the
appeal. The case is continuing as to the remaining defendants.
The Company denies all allegations of wrongdoing.
No further updates were provided in the Company's SEC report.
Southwest Airlines Co. operates a passenger airline that provides
scheduled air transportation services in the United States and
near-international markets. Southwest Airlines Co. was founded in
1967 and is based in Dallas, Texas.
SOUTHWEST AIRLINES: Bid to Dismiss Texas Securities Suit Pending
----------------------------------------------------------------
Southwest Airlines Co. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 30, 2020, that the motion seeking
to dismiss the putative class action suit before the United States
District Court for the Northern District of Texas in Dallas remains
pending.
On February 19, 2020, a complaint alleging violations of federal
securities laws and seeking certification as a class action was
filed against the Company and certain of its officers in the United
States District Court for the Northern District of Texas in Dallas.
A lead plaintiff has been appointed in the case, and an amended
complaint was filed on July 2, 2020.
The amended complaint seeks damages on behalf of a putative class
of persons who purchased the Company's common stock between
February 7, 2017, and January 29, 2020.
The amended complaint asserts claims under Sections 10(b) and 20 of
the Securities Exchange Act and alleges that the Company made
material misstatements to investors regarding the Company's safety
and maintenance practices and its compliance with federal
regulations and requirements.
The amended complaint generally seeks money damages, pre-judgment
and post-judgment interest, and attorneys' fees and other costs. On
August 17, 2020, the Company and the individual defendants filed a
motion to dismiss. On October 1, 2020, the lead plaintiff filed a
response in opposition to the motion to dismiss. The Company filed
a reply on or about October 21, 2020, such that the motion is now
fully briefed.
Southwest Airlines said, "The Company denies all allegations of
wrongdoing, including those in the amended complaint. The Company
believes the plaintiffs' positions are without merit and intends to
vigorously defend itself."
Southwest Airlines Co. operates a passenger airline that provides
scheduled air transportation services in the United States and
near-international markets. Southwest Airlines Co. was founded in
1967 and is based in Dallas, Texas.
SOUTHWEST AIRLINES: Discovery Ongoing in Boeing MAX Defect Suit
---------------------------------------------------------------
Southwest Airlines Co. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 30, 2020, that discovery is
ongoing in the class action suit related to the company's
concealment of defects in the Boeing MAX aircraft.
On July 11, 2019, a complaint alleging violations of federal and
state laws and seeking certification as a class action was filed
against Boeing and the Company in the United States District Court
for the Eastern District of Texas in Sherman.
The complaint alleges that Boeing and the Company colluded to
conceal defects with the MAX aircraft in violation of the Racketeer
Influenced and Corrupt Organization Act ("RICO") and also asserts
related state law claims based upon the same alleged facts.
The complaint seeks damages on behalf of putative classes of
customers who purchased tickets for air travel from either the
Company or American Airlines between August 29, 2017, and March 13,
2019.
The complaint generally seeks money damages, equitable monetary
relief, injunctive relief, declaratory relief, and attorneys' fees
and other costs. On September 13, 2019, the Company filed a motion
to dismiss the complaint and to strike certain class allegations.
Boeing also moved to dismiss.
On February 14, 2020, the trial court issued a ruling that granted
in part and denied in part the motions to dismiss the complaint.
The trial court order, among other things: (i) dismissed without
prejudice various state law claims that the plaintiffs abandoned in
response to the motions, (ii) dismissed with prejudice the
remaining state law claims, including fraud by concealment, fraud
by misrepresentation, and negligent misrepresentation on the
grounds that federal law preempts those claims, and (iii) found
that plaintiffs lack Article III standing to pursue one of the
plaintiffs’ theories of RICO injury.
The order denied the motion to dismiss with respect to two RICO
claims premised upon a second theory of RICO injury and denied the
motion to strike the class allegations at the pleadings stage.
Discovery is ongoing.
The Company denies all allegations of wrongdoing, including those
in the complaint that were not dismissed. The Company believes the
plaintiffs' positions are without merit and intends to vigorously
defend itself.
No further updates were provided in the Company's SEC report.
Southwest Airlines Co. operates a passenger airline that provides
scheduled air transportation services in the United States and
near-international markets. Southwest Airlines Co. was founded in
1967 and is based in Dallas, Texas.
SPECTRUM PHARMA: Court Enters Final Judgment in Securities Suit
---------------------------------------------------------------
Judge Richard F. Boulware of the U.S. District Court for the
District of Nevada has entered an Order and Final Judgment in In Re
Spectrum Pharmaceuticals, Inc. Securities Litigation. This Document
Relates To: All Actions, Case No. 2:16-cv-02279-RFB-EJY (D. Nev.).
The Court has granted the Lead Plaintiff's Motion for Preliminary
Approval of Class Action Settlement, dated Feb. 19, 2020. On July
22, 2020, a hearing having been held before the Court to determine:
(1) whether the terms and conditions of the Stipulation and
Agreement of Settlement executed Nov. 8, 2019 are fair, reasonable
and adequate for the settlement of all claims asserted by the
Settlement Class against the Defendants, and should be approved;
(2) whether judgment should be entered dismissing the Action with
prejudice; (3) whether to approve the proposed Plan of Allocation
as a fair and reasonable method to allocate the Net Settlement Fund
among Settlement Class Members; (4) whether and in what amount to
award the Lead Counsel as fees and reimbursement of expenses; and
(5) whether and in what amount to award the Lead Plaintiff as
incentive fees.
Having considered all matters submitted to him at the hearing and
otherwise, Judge Boulware finds that, for settlement purposes only,
the prerequisites for a class action under Rule 23(a) and (b)(3) of
the Federal Rules of Civil Procedure have been satisfied.
He finally certified the action as a class action for purposes of
the Settlement, on behalf of all Persons (including, without
limitation, their beneficiaries) all persons and entities, other
than Defendants and their affiliates, who purchased or acquired
publicly traded Spectrum common stock (including through the
exercise of warrants or options) and/or call options, and/or sold
publicly traded Spectrum put options, from Jan. 31, 2013 through
Sept. 16, 2016, both dates inclusive.
The Lead Plaintiffs are certified as the class representatives, and
the Lead Counsel previously selected by the Lead Plaintiffs and
appointed by the Court is appointed as the Class Counsel.
The Settling Parties are directed to consummate the Settlement in
accordance with the terms and provisions of the Settlement
Stipulation. The Action and all claims contained therein, as well
as all of the Released Claims, are dismissed with prejudice as
against the Defendants and the Released Parties. The Settling
Parties are to bear their own costs, except as otherwise provided
in the Settlement Stipulation.
Without further order of the Court, the Defendants and the Class
Representatives may agree to reasonable extensions of time to carry
out any of the provisions of the Settlement Stipulation
Judge Boulware held that there is no just reason for delay in the
entry of the Order and Final Judgment and immediate entry by the
Clerk of the Court is expressly directed pursuant to Rule 54(b) of
the Federal Rules of Civil Procedure. The finality of the Order
and Final Judgment will not be affected, in any manner, by rulings
that the Court may make on the Class Counsels' application for an
award of attorneys' fees and expenses or an award to Class
Representatives.
A full-text copy of the Court's Aug. 12, 2020 Order & Final
Judgment is available at https://tinyurl.com/y4jmc8ql from
Leagle.com.
STURM RUGER: Primus Group Suit v. Smith and Wesson Ongoing
----------------------------------------------------------
Sturm, Ruger & Company, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 26, 2020, that the company
continues to defend a putative class action suit entitled, Primus
Group LLC v. Smith and Wesson, et al.
Primus Group LLC v. Smith and Wesson, et al. is a putative class
action filed in the United States District Court for the Southern
District of Ohio on August 8, 2019.
Plaintiff alleges that the defendants’ lawful sale of modern
sporting rifles violates the Racketeer Influenced Corrupt
Organizations Act and seeks a temporary restraining order ("TRO")
and permanent injunction.
On August 20, 2019, the court denied plaintiff's request for a TRO.
On September 3, 2019, defendants filed a motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6).
On September 16, 2019, plaintiff filed an Amended Complaint. On
October 9, 2019, the court dismissed plaintiff's Amended Complaint,
with prejudice.
Plaintiff filed a Notice of Appeal on October 15, 2019 and sought
two extensions of time to file its initial brief. Plaintiff's
subsequent motion to hold the appeal in abeyance was granted,
though the court also ordered plaintiff to file periodic status
reports.
Plaintiff filed a series of status reports and eventually requested
that the appeal be reactivated. Pursuant to the scheduling order in
place currently, the matter should be briefed fully by December 9,
2020.
Sturm, Ruger & Company, Inc., together with its subsidiaries,
designs, manufactures, and sells firearms under the Ruger name and
trademark in the United States. It operates in two segments,
Firearms and Castings. Sturm, Ruger & Company, Inc. was founded in
1949 and is based in Southport, Connecticut.
SUDS & BUBBLES: Villatoro Sues Over Unpaid Wages Under FLSA
-----------------------------------------------------------
Benjamin Villatoro, on behalf of himself and all other persons
similarly situated v. Suds & Bubbles Inc. d/b/a Turnpike Car Wash
and John Does #1-10, Case No. 2:20-cv-04972 (E.D.N.Y. Oct. 16,
2020), is brought pursuant to the Fair Labor Standards Act and the
New York Labor Law, alleging that the Plaintiff is entitled to
unpaid wages from the Defendants for overtime work for which they
did not receive overtime premium pay as required by law, and
liquidated damages pursuant to the FLSA, because the Defendants'
violations lacked a good faith basis.
From roughly February through September each year, the Plaintiff
worked seven days per week, for a total of about 73 and a half
hours per week. The remainder of the year each year he worked only
six days per week, for a total of around 63 hours per week. When
the Plaintiff was paid by a combination of check and cash, he
received paystubs for the check portion of his pay only. The
paystubs, however, did not reflect the cash payments that he
received and did not reflect all of his hours worked.
As a result, the Plaintiff's effective rate of pay was below the
statutory New York minimum wage throughout all of his employment
with the exception of 2016. The Defendants' failure to pay the
Plaintiff amounts at least equal to the New York state minimum wage
in effect during relevant time periods was willful, and lacked a
good faith basis, says the complaint.
The Plaintiff Mr. Villatoro has been employed at Turnpike Car Wash
since July 2014.
The Defendants have owned and operated a car wash in Suffolk
County, New York.[BN]
The Plaintiff is represented by:
David Stein, Esq.
SAMUEL & STEIN
38 West 32nd Street, Suite 1110
New York, NY 10001
Phone: (212) 563-9884
Email: dstein@samuelandstein.com
SUFFOLK COUNTY, NY: Court Certifies Class in Newkirk Suit v. Pierre
-------------------------------------------------------------------
In the case, LANCE NEWKIRK, DOROTHY W., and CHRISTOPHER G., on
behalf of themselves, and all those similarly situated, Plaintiffs,
v. FRANCES PIERRE, Commissioner of the Suffolk County Department of
Social Services, in her official capacity, Defendant, Case No.
19-CV-4283 (NGG) (SMG) (E.D. N.Y.), Judge Nicholas G. Garaufis of
the U.S. District Court for the Eastern District of New York
granted the Plaintiffs' amended motion for class certification.
On July 25, 2019, the named Plaintiffs bring the action on behalf
of themselves and all those similarly situated against Defendant
Pierre, requesting declaratory and injunctive relief for violations
of Title II of the Americans with Disabilities Act ("ADA"), and
Section 504 of the Rehabilitation Act of 1973. On the same day,
the Plaintiffs moved for class certification pursuant to Rules
23(a) and 23(b)(2) of the Federal Rules of Civil Procedure.
On Aug. 7, 2019, the Plaintiffs filed an Amended Complaint and an
amended motion for class certification to correct an error as to a
named Plaintiff's full name.
As alleged in the Plaintiffs' Amended Complaint, SCDSS administers
federal and state subsistence benefit programs and services to
low-income individuals and families residing in Suffolk County, New
York, including: (1) Supplemental Nutrition Assistance Program
("SNAP"), a federally-funded nutrition assistance program; (2)
Medicaid, a joint federal and state program that provides free or
low-cost health coverage; and (3) Temporary Assistance ("TA"), a
joint federal and state program that provides temporary financial
and housing assistance and related support services. To receive
these benefits and services, individuals must apply either online
(SNAP, Medicaid) or in person (SNAP, Medicaid, TA) at one of the
five service centers in Suffolk County.
The Plaintiffs allege that they and the putative class members are
low-income individuals with physical and/or mental impairments who
have encountered significant difficulties in working through
eligibility procedures—and later, recertification forms -- absent
reasonable accommodations. According to them, although Suffolk
County has a policy of providing reasonable accommodations as
required by the ADA and Section 504, the Defendant has failed to
effectively operationalize and implement this policy within SCDSS,
leaving benefits applicants or recipients who present with a need
for reasonable accommodations and/or who specifically request them
without a consistent and effective method of obtaining them. They
allege that the Defendant's discriminatory actions and omissions
have resulted and continue to result in denial, loss, or limited
access to benefits and services to which the Plaintiffs and the
members of the class are entitled by law.
Based on these allegations, the Plaintiffs seek a judgment
declaring that the Defendant's actions and failures or refusals to
act violate Title II of the ADA and Section 504 of the
Rehabilitation Act and injunctive relief requiring the Defendant to
comply with these statutes and implementing regulations.
The requested injunctive relief specifically includes requiring
defendant to (1) provide adequate and timely information as to how
to request or access a reasonable accommodation needed to access or
retain benefits; (2) enact, implement, and enforce systemic and
countywide policies to ensure that SCDSS provides appropriate
screening to identify persons with disabilities who require
reasonable accommodations to access and/or maintain benefits; (3)
uniformly provide reasonable accommodations on an ongoing basis, as
needed to those who are appropriately identified as requiring or
having requested accommodations in order to access and/or maintain
benefits; (4) maintain adequate records of those clients who have
requested reasonable accommodations and/or who have been determined
to require such accommodations; (5) develop a grievance procedure
to provide prompt and equitable resolution of disputes in all
instances when a reasonable accommodation is either denied or is
not provided in the manner or form requested; (6) designate one or
more individuals to coordinate the efforts of the Defendant to
comply with and carry out its responsibilities under the ADA or
Section 504; (7) provide training to SCDSS employees on the rights
of benefits applicants and recipients with disabilities under the
ADA and Section 504; and (8) provide quarterly reporting to the
Court and the Plaintiffs regarding the Defendant's policies and
actions with respect to reasonable accommodations.
Following several adjournments, the Defendant filed an answer to
the Amended Complaint and an opposition to the amended motion for
class certification, and the Plaintiff then filed a reply.
Judge Garaufis has referred the amended motion for class
certification to Magistrate Judge Steven M. Gold for a report and
recommendation ("R&R"). On May 13, 2020, Mag. Judge Gold heard
oral argument and reserved decision.
The Plaintiffs seek to certify the following class: All Suffolk
County residents with disabilities who: (1) have applied for or
will apply for SNAP, Medicaid, or TA, from the SCDSS since July 1,
2018 and are entitled to reasonable accommodations in the
application process to participate in or benefit from these
programs; and/or (2) have been found eligible for such programs and
are entitled to reasonable accommodations in order to enjoy equal
opportunity to participate in or benefit from them.
Judge Gold found that the Plaintiffs have satisfied the
prerequisites of Rule 23(a) for certifying a class action. She
also found that class certification under Rule 23(b)(2) is
appropriate because each of the claims at issue is based on the
Defendant's systemic failure or refusal to comply with the ADA and
Section 504, and the requested declaratory and injunctive relief
would inure to the benefit of all the class members.
For these reasons, the Magistrate Judge respectfully recommended
that the Court grants the Plaintiffs' motion to certify a Rule
23(b)(2) class consisting of all Suffolk County residents with
disabilities who: (a) have applied for or will apply for SNAP,
Medicaid, or TA from SCDSS since July 1, 2018, and are entitled to
reasonable accommodations in the application process to participate
in or benefit from these programs; and/or (b) have been found
eligible for such programs and are entitled to reasonable
accommodations in order to enjoy equal opportunity to participate
in or benefit from them.
The Objection Deadline to R&R was Aug. 25, 2020. No party has
objected to Judge Gold's R&R, and the time to do so has passed.
Therefore, Judge Garaufis reviewed the R&R for clear error. Having
found none, he adopted the R&R in full and certified a Rule
23(b)(2) class as recommended by Magistrate Judge Gold.
A full-text copy of the Court's Aug. 26, 2020 Order is available at
https://tinyurl.com/y2bhkuf9 from Leagle.com.
SUNERGY INC: Faces Abitbol Suit Over Unsolicited Telephone Calls
----------------------------------------------------------------
DAVID ABITBOL, individually and on behalf of all others similarly
situated, Plaintiff v. SUNERGY, INC., and VOLTAIC, INC., and DOES 1
through 10, inclusive, and each of them, Defendants, Case No.
2:20-cv-09719 (C.D. Cal., October 22, 2020) is a class action
complaint brought against the Defendants for their alleged
negligent and willful violations of the Telephone Consumer
Protection Act.
According to the complaint, the Defendants placed numerous calls on
the Plaintiff's cellular telephone number ending in -6443 by using
an "automatic telephone dialing system" in an attempt to solicit
the Plaintiff to purchase its services. The Plaintiff asserts that
he never provided the Defendants with his "prior express consent"
to receive calls using an ATDS or an artificial or prerecorded
voice on his cellular telephone number that was registered to the
National Do-Not-Call Registry on or about February 18, 2020.
Moreover, the Defendants continued placing calls on the Plaintiff's
cellular telephone despite the Plaintiff's request to stop calling
him on his cellular telephone. The Plaintiff has been harmed by the
Defendants' unlawful conduct causing him to incur certain charges
or reduced telephone time for which he had previously paid, and
invading his privacy.
Sunergy, Inc. is a home services company. [BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
Meghan E. George, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (323) 306-4234
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
mgeorge@toddflaw.com
SUNNY & KP: Sanchez Suit Seeks Proper Wages
-------------------------------------------
Mario Sanchez, Francisco Mezquita, and Nano Batista, on behalf of
themselves and all others similarly situated v. SUNNY & KP
CONSTRUCTION CORP., GURNOOR CONSTRUCTION CORP., OMG CONSTRUCTION
CORP., SARBJIT SINGH, KULDIP SINGH, and XINOS CONSTRUCTION CORP.,
Case No. 1:20-cv-08649 (S.D.N.Y., Oct. 16, 2020), seeks unpaid
wages and unpaid overtime wages over the Defendants' violations of
the Fair Labor Standards Act of 1938, the New York Labor Law, and
the supporting regulations.
Despite the Plaintiffs regularly working more than 40 hours per
week, the Defendants did not compensate the Plaintiffs at the
lawful overtime rate of one and one-half times their regular hourly
rate of pay for the hours they worked in excess of 40 hours per
week. The Defendants also failed to keep accurate and sufficient
time records as required by Federal and New York State laws, says
the complaint.
The Plaintiffs were employed as full-time non-exempt construction
employees of the Defendants.
The Defendants jointly operate a construction company that is "part
of the Roofing, Siding, & Sheet Metal Contractors Industry".[BN]
The Plaintiffs are represented by:
David Harrison, Esq.
HARRISON, HARRISON & ASSOCIATES
110 State Highway 35, 2nd Floor
Red Bank, NJ 07701
Phone: (718) 799-9111
Fax: (718) 799-9171
Email: dharrison@nynjemploymentlaw.com
SURESCRIPTS: Pharmacies Antitrust Suit Dismissed Without Prejudice
------------------------------------------------------------------
Judge John J. Tharp, Jr. of the U.S. District Court for the
Northern District of Illinois, Eastern Division, dismissed without
prejudice the Plaintiffs' Consolidated Class Action Complaint
("CAC") in IN RE SURESCRIPTS ANTITRUST LITIGATION. This Document
Relates To All Class Actions, Case No. 1:19-cv-06627 (N.D. Ill.).
The Plaintiffs assert that the Defendants have conspired to
restrain trade and monopolize key services related to the provision
of e-prescriptions. E-prescription services include both
"routing," the transmission of prescription information from a
physician to a pharmacy, and "eligibility," the transmission of a
patient's formulary and pharmaceutical benefit information from the
patient's health care plan to a prescriber's electronic health
record system.
The Plaintiffs are 10 pharmacies that participate solely in the
routing market. Defendant Surescripts is a health information
technology company that provides e-prescription routing and
eligibility services. Defendant RelayHealth is a wholesale
customer of Surescripts that resells Surescripts' e-prescription
routing services. Defendant Allscripts is an electronic health
records ("EHR") vendor that provides patient chart data
electronically for physicians and hospitals.
The market for e-prescription services has expanded dramatically in
recent years, encouraged in part by the Medicare Improvements for
Patients and Providers Act and the Health Information Technology
for Economic and Clinical Health Act. In 2017, 77% of all
prescriptions were delivered electronically. The plaintiffs allege
that Defendant Surescripts maintains at least a 95% share, by
transaction volume, in both the routing and eligibility markets and
has been able to charge pharmacies supracompetitive prices for
nearly 10 years. They allege that they and other pharmacies have
been forced to pay considerably more for their routing services
than they otherwise would have paid in the presence of lawful
competition.
In addition, the Plaintiffs allege that some pharmacy technology
vendors ("PTVs") -- firms that provide software and computer
technology services that facilitate pharmacies' connections to
Surescripts' routing services -- entered into a conspiracy with the
Defendants. These PTVs resell Surescripts' e-prescription routing
transactions to pharmacies, charging routing prices in lock-step
with Surescripts' prices that are paid to the PTV rather than to
Surescripts.
The Plaintiffs seek to represent a prospective class of U.S.-based
pharmacies who paid for e-prescription routing transactions from
Surescripts, RelayHealth, or any pharmacy technology vendor with an
exclusive Surescripts or RelayHealth routing contract during the
period Sept. 21, 2010, through and until the date of trial. They
allege that the Defendants' fraudulent concealment tolled the
statute of limitations, as they and members of the prospective
class had no knowledge of the alleged conspiracy until the FTC
filed a complaint against Surescripts in the U.S. District Court
for the District of Columbia in May 2019.
The plaintiffs filed actions in the District in October and
November 2019 and filed the CAC on Dec. 5, 2019, bringing claims
for monopolization, conspiracy to monopolize, and conspiracy or
combination in restraint of trade in violation of the Sherman Act
against Surescripts, RelayHealth, and Allscripts. The Plaintiffs
reached a settlement in principle with Defendant RelayHealth in
June 2020, and accordingly RelayHealth's motion to dismiss has been
held in abeyance; Defendants Surescripts' and Allscripts' motions
to dismiss are before the Court. Argument on the motions was heard
on June 26, 2020 by telephone conference.
The Defendants, argue (among other things) that under the direct
purchaser rule of Illinois Brick Co. v. Illinois, the Plaintiffs
are not proper parties to bring the antitrust action for damages.
Judge Tharp concludes that because the Plaintiffs stop short of
alleging that they are direct purchasers from the Defendants or
otherwise permitted by the Illinois Brick doctrine to bring these
claims, they have failed to push their claim across the line
between possibility and plausibility of entitlement to relief. The
CAC does not tell whether the Plaintiffs purchased e-prescription
routing services directly from Surescripts, or from RelayHealth or
other resellers, or from PTVs who were conspiring with Surescripts,
or from PTVs who weren't conspiring with Surescripts. Without this
information, the CAC fails to allege facts that establish that the
Plaintiff pharmacies are permitted under the Illinois Brick
doctrine to bring suit in federal court for antitrust damages.
That's the Plaintiffs' burden.
Accordingly, Defendants Surescripts' and Allscripts' motions to
dismiss are granted. The dismissal, however, is without prejudice;
the Plaintiffs may replead if they are able. If they prefer to
stand on the CAC, however, they may so advise the Court and it will
enter judgment for Surescripts and Allscripts to facilitate any
appeal the Plaintiffs may wish to pursue, rules Judge Tharp.
A full-text copy of the Court's Aug. 19, 2020 Memorandum Opinion &
Order is available at https://tinyurl.com/y2t69jfw from Leagle.com.
TELIGENT INC: Oklahoma Police Pension Fund Seeks Class Status
-------------------------------------------------------------
In the class action lawsuit captioned as OKLAHOMA POLICE PENSION
FUND AND RETIREMENT SYSTEM, Individually and on Behalf of All
Others Similarly Situated, v. TELIGENT, INC. and JASON
GRENFELL-GARDNER, Case No. 1:19-cv-03354-VM (S.D.N.Y.), the
Plaintiff asks the Court for an order:
1. certifying the action to proceed as a class action
pursuant to Rules 23(a) and (b)(3) of the Federal
Rules of Civil Procedure;
2. appointing Oklahoma Police to serve as Class
Representative; and
3. appointing Scott and Scott Attorneys at Law LLP as
Class Counsel.
Teligent is a specialty generic pharmaceutical company.[CC]
Counsel for Lead Plaintiff Oklahoma Police Pension Fund and
Retirement System and Proposed Lead Counsel for the Class, are:
Max R. Schwartz, Esq.
Anjali Bhat, Esq.
Jeffrey P. Jacobson
SCOTT+SCOTT ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: 212-223-6444
Facsimile: 212-223-6334
E-mail: mschwartz@scott-scott.com
abhat@scott-scott.com
jjacobson@scott-scott.com
TESCO CORP: 5th Circuit Affirms Heinze Suit Dismissal
-----------------------------------------------------
In the case, NORMAN HEINZE, Plaintiff-Appellant, v. TESCO
CORPORATION; FERNANDO R. ASSING; JOHN P. DIELWART; R. VANCE
MILLIGAN; DOUGLAS R. RAMSAY; ROSE M. ROBESON; ELIJIO V. SERRANO;
MICHAEL W. SUTHERLIN; NABORS INDUSTRIES, LIMITED,
Defendants-Appellees. NORMAN HEINZE, Plaintiff-Appellant, v. TESCO
CORPORATION; MICHAEL W. SUTHERLIN; FERNANDO R. ASSING; JOHN P.
DIELWART; R. VANCE MILLIGAN; DOUGLAS R. RAMSAY; ROSE M. ROBESON;
ELIJIO V. SERRANO, Defendants-Appellees, Case No. 19-20298 (5th
Cir.), the U.S. Court of Appeals for the Fifth Circuit affirmed the
district court's dismissal of all the claims against all the
Defendants.
Heinze brings the putative class action on behalf of himself and
other former shareholders of Tesco against Tesco, former members of
Tesco's board of directors, and Nabors Industries, Ltd. Heinze
alleges that the Defendants' omissions from a proxy statement led
Tesco shareholders to approve an all-stock acquisition by Nabors.
Tesco provided certain technologies related to the drilling,
servicing, and completion of wells for the upstream energy
industry. On July 6, 2017, Tesco received an acquisition offer
from Nabors, a company that provides drilling and drilling-related
services for oil and gas wells. Nabors proposed an all-stock
acquisition with an exchange ratio of 0.62 Nabors shares for each
outstanding share of Tesco common stock.
On July 12, Tesco engaged J.P. Morgan Securities LLC to analyze the
offer. Based on the lack of interest from third parties, Tesco's
board focused on negotiations with Nabors. On August 3, Tesco's
board met to consider the Nabors proposal. The board determined
that the 0.62 ratio was insufficient. Later that night, Nabors
proposed a new ratio of 0.66 Nabors shares for each outstanding
share of Tesco common stock. Tesco's board rejected that offer the
following day. On August 8, Nabors revised its proposal to 0.68
Nabors shares for each outstanding share of Tesco common stock. On
August 13, J.P. Morgan presented its oral opinion to the Tesco
board that the proposed transaction would provide Tesco
shareholders with fair consideration. Tesco and Nabors signed the
agreement that evening and publicly announced the transaction the
following morning on August 14. The transaction valued Tesco at
$4.62 per share, which represented a 19% premium over Tesco's
closing price on the last trading day before the transaction's
announcement.
Because Tesco was incorporated under Alberta law, the Court of
Queen's Bench of Alberta had to approve the transaction. On
October 18, the Alberta court issued an interim order approving a
special meeting of Tesco shareholders and requiring a two-thirds
majority vote of common shares, stock options, and restricted stock
units represented at the meeting. The interim order also called
for the dissemination of a Schedule 14A proxy statement. Tesco
filed its final proxy statement on October 26. At the special
meeting on December 1, Tesco's shareholders approved the
transaction with the required voting majority. The Alberta court
approved it too.
Heinze brought claims on behalf of himself and all other former
Tesco shareholders against Tesco, former members of Tesco's board
of directors, and Nabors. He alleged that the Defendants violated
Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 and
SEC Rule 14a-9. Specifically, Heinze alleged that the Defendants
made a number of omissions in the proxy statement that rendered the
proxy statement misleading. The district court granted the
Defendants' Rule 12(b)(6) motion and dismissed all claims against
all them. Heinze timely appealed.
The heightened pleading requirements of the Private Securities
Litigation Reform Act apply to the case. Heinze's amended
complaint alleges that the Defendants omitted to state a material
fact necessary in order to make the statements made, in the light
of the circumstances in which they were made, not misleading.
Heinze has two causes of action. The first arises under Section
14(a) of the 1934 Act. He claims that the proxy statement was
misleading because it omitted certain material facts. The second
arises under Section 20(a) of the 1934 Act. He claims that the
individual defendants are liable for any violations of Section
14(a) committed by people they controlled.
The Fifth Circuit examines Heinze's allegations in turn and
concludes that he failed to state a claim upon which relief can be
granted. Starting with the Section 14(a) of the 1934 Act, the
Fifth Circuit finds that (i) the Defendants' alleged failure to
communicate a more bullish forecast in the case doesn't come close
to rendering the revenue and EBITDA projections for 2017 and 2018
misleading; (ii) the projections of revenue and EBITDA for 2017 and
2018 are clearly identified as forward-looking statements and are
accompanied by meaningful cautionary statements identifying
important factors that could cause actual results to differ,
therefore safe harbor is inapplicable; and (iii) Heinze doesn't
dispute that the summary of J.P. Morgan's fairness opinion on pages
44-48 of the proxy correctly summarizes J.P. Morgan's analysis.
Heinze's second cause of action arises under Section 20(a) of the
1934 Act. It alleges that the individual Defendants are liable for
any violations described in the first cause of action committed by
a person they controlled. Because Heinze has failed to state a
predicate claim under Section 14(a) and SEC Rule 14a-9, he has also
failed to state a claim under Section 20(a), rules the Fifth
Circuit.
Finally, Heinze argues that the district court erred in not
granting him leave to further amend his complaint. Heinze already
had one opportunity to amend his complaint. He makes only a
general request for leave to amend and has not identified how
amendment would cure the defects identified. The Fifth Circuit,
therefore, holds that amendment would be futile and that the
district court did not abuse its discretion in denying leave to
amend.
For these reasons, the district court's judgment is affirmed.
A full-text copy of the Fifth Circuit's Aug. 19, 2020 Order is
available at https://tinyurl.com/y58jsgv5 from Leagle.com.
TESLA INC: Appeal in Investor Suit Over Model 3 Production Pending
------------------------------------------------------------------
Tesla Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 26, 2020, for the quarterly
period ended September 30, 2020, that the parties in a class action
related to the company's production of Model 3 cars are awaiting a
decision from the U.S. Court of Appeals for the Ninth Circuit.
On October 10, 2017, a purported stockholder class action was filed
in the U.S. District Court for the Northern District of California
against Tesla, two of its current officers, and a former officer.
The complaint alleges violations of federal securities laws and
seeks unspecified compensatory damages and other relief on behalf
of a purported class of purchasers of Tesla securities from May 4,
2016 to October 6, 2017. The lawsuit claims that Tesla supposedly
made materially false and misleading statements regarding Tesla's
preparedness to produce Model 3 vehicles.
Plaintiffs filed an amended complaint on March 23, 2018, and
defendants filed a motion to dismiss on May 25, 2018. The court
granted defendants' motion to dismiss with leave to amend.
Plaintiffs filed their amended complaint on September 28, 2018, and
defendants filed a motion to dismiss the amended complaint on
February 15, 2019.
The hearing on the motion to dismiss was held on March 22, 2019,
and on March 25, 2019, the Court ruled in favor of defendants and
dismissed the complaint with prejudice.
On April 8, 2019, plaintiffs filed a notice of appeal and on July
17, 2019 filed their opening brief. The company filed its
opposition on September 16, 2019. A hearing on the appeal before
the U.S. Court of Appeals for the Ninth Circuit was held on April
30, 2020, and the parties await a ruling.
The company continues to believe that the claims are without merit
and intend to defend against this lawsuit vigorously. The company
is unable to estimate the possible loss or range of loss, if any,
associated with this lawsuit.
On October 26, 2018, in a similar action, a purported stockholder
class action was filed in the Superior Court of California in Santa
Clara County against Tesla, Elon Musk, and seven initial purchasers
in an offering of debt securities by Tesla in August 2017.
The complaint alleges misrepresentations made by Tesla regarding
the number of Model 3 vehicles Tesla expected to produce by the end
of 2017 in connection with such offering and seeks unspecified
compensatory damages and other relief on behalf of a purported
class of purchasers of Tesla securities in such offering. Tesla
thereafter removed the case to federal court.
On January 22, 2019, plaintiff abandoned its effort to proceed in
state court, instead filing an amended complaint against Tesla,
Elon Musk and seven initial purchasers in the debt offering before
the same judge in the U.S. District Court for the Northern District
of California who is hearing the above-referenced earlier filed
federal case.
On February 5, 2019, the Court stayed this new case pending a
ruling on the motion to dismiss the complaint in such earlier filed
federal case. After such earlier filed federal case was dismissed,
defendants filed a motion on July 2, 2019 to dismiss this case as
well.
This case is now stayed pending a ruling from the appellate court
on such earlier filed federal case with an agreement that if
defendants prevail on app
Tesla Inc. designs, manufactures, and sells high-performance
electric vehicles and electric vehicle powertrain components. The
Company owns its sales and service network and sells electric
powertrain components to other automobile manufacturers. Tesla
serves customers worldwide. The company is based in Palo Alto,
California.
TH NYC RESTAURANT: Song Suit Seeks Unpaid Minimum, Overtime Wages
-----------------------------------------------------------------
Hong Jie Song, Bai Sun, and Jing Guo, Individually and on Behalf of
All Other Employees Similarly Situated v. TH NYC Restaurant 1 LLC
d/b/a Pinch Chinese, Xiang Tang a/k/a Sean Tang, Tao Li a/k/a
"Tony" Li, Chang Gui Chen, and Ming Liang Chen, Case No.
1:20-cv-08624 (S.D.N.Y., Oct. 16, 2020), alleges violations of the
Fair Labor Standards Act, the New York Labor Law, and the
Trafficking Victims Protection Reauthorization Act.
The Plaintiffs assert that they are entitled to recover from the
Defendants unpaid minimum wages, unpaid overtime wages, unpaid
"spread of hours" premium for each day they worked 10 or more
hours, compensation for failure to provide wage notice at the time
of hiring, and failure to provide paystubs in violation of the
NYLL, liquidated damages, prejudgment and post-judgment interest,
and attorneys' fees and costs.
The complaint alleges that the Defendants have willfully and
intentionally committed widespread violations of the FLSA, and NYLL
by engaging in a pattern and practice of failing to pay their
employees, including Plaintiffs, compensation for all hours worked
and overtime compensation for all hours worked over 40 each
workweek.
The complaint further alleges that Defendants have unlawfully
confiscated and held Plaintiffs' passports and O-2 work visas,
failed to pay Plaintiffs salaries and assign Plaintiffs to
positions according to the employment contract provided for their
work visa application. The Defendants also breached the employment
contract between parties by improperly terminating Plaintiffs'
employment prior to the expiration of the contract term. Defendants
constituted fraud, breach of the implied covenant of good faith and
fair dealing, and conversion under New York common law, the
complaint relates.
The Defendants own and operate a restaurant business. The
Plaintiffs were employed by the Defendants' restaurant.[BN]
The Plaintiffs are represented by:
Qinyu Fan, Esq.
HANG & ASSOCIATES, PLLC.
136-20 38th Ave., Suite 10G
Flushing, NY 11354
Phone: 718.353.8588
Email: qfan@hanglaw.com
THAI SMILE: Tolentino Sues Over Unpaid Minimum and Overtime Wages
-----------------------------------------------------------------
Jeronimo Tolentino, individually and on behalf of others similarly
situated v. THAI SMILE RESTAURANT CORP. (D/B/A TUE THAI FOOD),
PRASONG PORNPICHAYANURAK, and SUPHAKIT SAEUE AKA NICK, Case No.
1:20-cv-08812 (S.D.N.Y., Oct. 22, 2020), is brought for unpaid
minimum and overtime wages pursuant to the Fair Labor Standards Act
of 1938, and for violations of the N.Y. Labor Law, and the "spread
of hours" and overtime wage orders of the New York Commissioner of
Labor, including applicable liquidated damages, interest,
attorneys' fees, and costs.
According to the complaint, the Plaintiff worked for the Defendants
in excess of 40 hours per week, without appropriate minimum wage,
overtime, and spread of hours compensation for the hours that he
worked. The Defendants failed to maintain accurate recordkeeping of
the hours worked and failed to pay the Plaintiff appropriately for
any hours worked, either at the straight rate of pay or for any
additional overtime premium. Further, the Defendants failed to pay
the Plaintiff the required "spread of hours" pay for any day in
which he had to work over 10 hours a day. The Defendants employed
and accounted for the Plaintiff as a delivery worker in their
payroll, but in actuality his duties required a significant amount
of time spent performing the non-tipped duties. Regardless, the
Defendants paid the Plaintiff at a rate that was lower than the
required tip-credit rate, the complaint relates.
The Defendants also employed the policy and practice of disguising
the Plaintiff's actual duties in payroll records by designating him
as a delivery worker instead of as a non-tipped employee, adds the
complaint.
The Plaintiff Tolentino was employed as a food preparer and
delivery worker at the restaurant.
The Tue Thai Food is a Thai restaurant, located in the City of New
York, under the name "Tue Thai Food" .[BN]
The Plaintiff is represented by:
Michael A. Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 2540
New York, NY 10165
Phone: (212) 317-1200
Facsimile: (212) 317-1620
TOMS KING: Thomas FACTA Suit Dismissed Without Prejudice
--------------------------------------------------------
Judge Christopher A. Boyko of the U.S. District Court for the
Northern District of Ohio, Eastern Division, dismissed without
prejudice the case, DENECE THOMAS, etc., Plaintiff, v. TOMS KING
(OHIO), LLC, et al., Defendants, Case No. 1:19CV1419 (N.D. Ohio).
On June 19, 2019, the Plaintiff on behalf of herself and all others
similarly situated, brought the Class Action Complaint against the
TOMS King Defendants for violations of the Fair and Accurate Credit
Transactions Act ("FACTA"). The Plaintiff alleges that at one of
the Defendants' locations on June 26, 2017, the Defendants printed
the first six digits and the last four digits of her card number on
the printed receipt. By doing so, the Defendants have harmed the
Plaintiff and the Class by exposing them to at least an increased
and material risk of identity theft and credit and/or debit card
fraud.
The Defendants' violation of FACTA's prohibition against printing
excess digits of a card number presents a significant risk of the
exact harm that Congress intended to prevent—the display of card
information that could be exploited by an identity thief. The
first six digits identify the card and the card issuer.
In this situation, the Plaintiff and the Class members must take
additional steps to ensure the safety of his or her identity; he or
she may not simply crumple the receipt and throw it into a nearby
trash can, but must review it to assess what was printed, hold on
to it, and perhaps shred it or cut it up later. Furthermore, to
the extent the Defendants retained a copy of the Plaintiff's
receipt(s) and/or the information contained therein, such retention
provides an additional access point for the information to persons
other than the Plaintiff, and thereby further increases the risk of
harm to te Plaintiff and other customers similarly situated.
The Plaintiff alleges that the Defendants' actions were not
accidental. Despite being on notice of FACTA requirements since at
least 2007, the Defendants knowingly, willfully, intentionally, and
recklessly disregarded FACTA's requirements and used cash registers
and or other machines or devices that printed receipts in violation
of FACTA. She prays for statutory damages pursuant to 15 U.S.C.
Section 1681n for the Defendants' willful violations, punitive
damages, attorneys' fees and costs.
In their Motion to Dismiss, the Defendants argue that the
Plaintiff's Complaint sets forth only a bare procedural violation
of FACTA, i.e., providing a single point-of-sale transaction
receipt that allegedly fails to comply with the statute.
Consequently, the Plaintiff's Complaint fails to satisfy the actual
case or controversy jurisdictional requirement set forth in Article
III of the United States Constitution, and therefore fails to
establish that the Court has subject matter jurisdiction over her
claim or the claims of the putative class members she seeks to
represent.
Judge Boyko finds that the Defendants' technical violation of FACTA
demonstrates no harm to the Plaintiff's identity. The Plaintiff's
allegations of hypothetical future injury are insufficiently
concrete to confer Article III standing. Without standing, the
Court has no subject matter jurisdiction over the Plaintiff's FACTA
claims or that of the class she purports to represent. Therefore,
the Motion of Defendants TOMS King (Ohio), TOMS King (Ohio II) LLC
and TOMS King Services, LLC to Dismiss for lack of subject matter
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) is granted and the
Complaint is dismissed without prejudice.
A full-text copy of the Court's Aug. 26, 2020 Opinion & Order is
available at https://tinyurl.com/y5jarle8 from Leagle.com.
TOWN SPORTS: Court Denies Class Certification Bid in "Kolomiichuk"
------------------------------------------------------------------
In the class action lawsuit captioned as MYKOLA KOLOMIICHUK, on
behalf of himself and all others similarly situated, v TOWN SPORTS
INTERNATIONAL HOLDINGS, INC., et al., Case No. 7:18-cv-01223-KMK
(S.D.N.Y.), the Hon. Judge Kenneth M. Karas entered an order
denying without prejudice the Defendants' Motion for Summary
Judgment, and Plaintiff's Motion for Class Certification in light
of the Defendants' recent bankruptcy petitions.
On September 14, 2020, the Defendants filed voluntary petitions for
Chapter 11 bankruptcy in the United States Bankruptcy Court for the
District of Delaware, thereby triggering an automatic stay of the
pending matter.
The Parties may renew their motions once the automatic stay is
lifted. The Clerk of Court is respectfully directed to terminate
the pending motions, the District Judge said.
Town Sports International Holdings is an operator of fitness
centers in the Eastern United States, California and in
Switzerland. Its brands include New York Sports Clubs, Boston
Sports Clubs, Philadelphia Sports Clubs, Washington Sports Clubs,
Lucille Roberts, TMPL Gym and Total Woman Gym and Spa.
A copy of the Court's Order is available from PacerMonitor.com at
https://bit.ly/30x3yzQ at no extra charge.[CC]
TOYOTA MOTOR: 9th Cir. Partly Reverses Dismissal of Heber Suit
--------------------------------------------------------------
In the case, ALBERT HEBER; et al., Plaintiffs-Appellants, v. TOYOTA
MOTOR SALES, U.S.A., INC.; TOYOTA MOTOR CORPORATION,
Defendants-Appellees, Case No. 18-55935 (9th Cir.), the U.S. Court
of Appeals for the Ninth Circuit affirmed in part and reversed in
part the district court's dismissal of the putative class action
against Toyota.
The Appellants, individually and on behalf of all others similarly
situated, appeal the district court's dismissal of their putative
class action against Toyota. In their Fourth Amended Complaint
("FAC"), the Appellants allege that because Toyota switched its
wiring harness from vinyl chloride to a soy-based material, rodents
were more attracted to their vehicles and caused damages.
The district court dismissed the FAC for failure to plead with
particularity under Federal Rule of Civil Procedure 9(b) and found
that the soy-based wiring did not constitute a latent defect. The
appeal concerns the dismissal of the Appellants' claims arising
under 13 states' consumer protection statutes, the implied warranty
of merchantability, and the Magnuson-Moss Warranty Act ("MMWA").
While the district court did not address whether Appellants
adequately stated a claim for relief under Rule 8, Toyota argues
that the Court should affirm on that ground. The Appellants pled
that Toyota shifted from vinyl chloride-coated harnesses to
soy-based wiring harnesses, which in turn attracted more rodents to
their vehicles. They bolstered their FAC with numerous documents.
They state a claim under Rule 8.
Invoking Herodotus, Toyota contends that rats have always been
pests that chew on things. But that is not in dispute. Rather,
the Appellants assert that the soy-based wiring harness has led to
an increase in rodent damage to their vehicles. The factual
allegations in the FAC directly support the Appellants' theory,
which necessarily excludes Toyota's explanation. Accordingly, the
Appellants state a plausible claim for relief under Rule 8.
The district court dismissed the Appellants' claims arising under
state law fraud and consumer protection statutes because they
failed to plead with sufficient particularity under Rule 9(b). The
Appellants concede that those claims are governed by this
heightened pleading standard.
The Ninth Circuit finds that the Appellants fail to identify the
fraud with particularity. The Appellants merely state in
conclusory fashion that Toyota fraudulently failed to disclose the
alleged defect. Indeed, they fail to allege the extent to which
Toyota was aware of this issue. The consumer complaints they point
to are unpersuasive. This point is made more salient by the
infrequency of reported damage to Toyota vehicles. The Ninth
Circuit is left to wonder who at Toyota was aware of the alleged
defect and why Toyota did not disclose it. Thus, the Ninth Circuit
affirmed the district court's dismissal of Appellants' state-law
fraud and consumer protection claims.
The district court dismissed the Appellants' state-law implied
warranty of merchantability and corresponding MMWA claims,
concluding that the defect did not exist at the time of sale. It
reasoned that the rodents did not destroy the vehicles until after
the sale. On appeal, the Appellants concede they cannot state
claims arising under Idaho, Illinois, and Oregon law, but challenge
the dismissal of their remaining implied warranty and MMWA claims.
The Ninth Circuit holds that the district court incorrectly
identified the rodents as the alleged defect; the alleged defect
was the soy-based wiring harnesses that attracted the rodents in
the first place. The defect existed at the time of sale even if
the damage only occurred later. To hold otherwise would require
that the damage exists at the time of sale. Such a limitation runs
counter to the implied warranty's protection for ordinary use.
Accordingly, the Ninth Circuit reversed the district court's
dismissal of the Appellants' implied warranty of merchantability
claims -- with the exception of the abandoned claims arising under
Idaho, Illinois, and Oregon law -- and MMWA claims.
Based on the foregoing, the Court affirmed in part, reversed in
part, and remanded. The parties will bear their own costs on
appeal.
A full-text copy of the Ninth Circuit's Aug. 19, 2020 Memorandum is
available at https://tinyurl.com/y4zecb2j from Leagle.com.
TRANS-CONTINENTIAL: Stern Seeks to Certify FDCPA Classes
--------------------------------------------------------
In the class action lawsuit captioned as SURY STERN AS PARENT AND
GUARDIAN OF BABY BOY STERN on behalf of herself and all others
similarly situated consumers, v. TRANS-CONTINENTIAL CREDIT &
COLLECTION CORP., Case No. 1:19-cv-06947-WFK-JO (E.D.N.Y.), the
Plaintiff asks the Court for an order certifying classes as
follows:
Class A consisting of:
"all persons whom Defendant's records reflect resided in the
State of New York and who were sent a collection letter in
substantially the same form letters as -7- the letter sent to
the Plaintiff on or about April 25, 2019; and (a) the
collection letter was sent to a consumer seeking payment of a
personal debt; and (b) the collection letter was not returned
by the postal service as undelivered; (c) and the Plaintiff
asserts that the letter contained violations of 15 U.S.C.
sections 1692e, 1692e(10) and 1692g for false representations
and deceptive means and for contradicting the Plaintiff’s
thirty day validation rights"; and
Class B consisting of:
"all persons whom Defendant's records reflect resided in the
State of New York and who were sent a collection letter in
substantially the same form letter as the letter sent to the
Plaintiff on or about April 25, 2019; and (a) the collection
letter was sent to a consumer seeking payment of a personal
debt; and (b) the collection letter was not returned by the
postal service as undelivered; (c) and the Plaintiff asserts
that the letter contained violations of 15 U.S.C. sections
1692e, 1692e(10), 1692g and 1692g(a)(2) for failing to
correctly identify the name of the creditor to whom the debt
is owed."
The Plaintiff contends Trans-Continental Credit & Collection Corp.
has violated the FDCPA by sending to consumers, collection letters
which contradict the consumer's right to dispute the debt for the
initial thirty day period from receipt of the initial collection
letter and that the entity on behalf of which the defendant
collected was not properly identified as the creditor which violate
the Fair Debt Collection Practices Act.
Trans-Continental Credit And Collection Corp was founded in 1973.
The company's line of business includes collection and adjustment
services on claims and other insurance related issues.
A copy of the Plaintiff's motion for class certification is
available from PacerMonitor.com at https://bit.ly/34DAOXw at no
extra charge.[CC]
The Plaintiff is represented by:
Adam J. Fishbein, P.C.
735 Central Avenue
Woodmere, NY 11598
Telephone (516) 668-6945
TRILOGY REAL: Dickinson Sues Over Unpaid Minimum and OT Wages
---------------------------------------------------------------
DANIELLE DICKINSON, in a representative capacity only, and on
behalf of other members of the public similarly situated, v.
TRILOGY REAL ESTATE MANAGEMENT, INC., a California Corporation, and
DOES 1-10, inclusive, Case No. 37-2020-00037990-CU-OE-CTL (Cal.
Super., San Diego Cty., Oct. 20, 2020), is a class action complaint
against the Defendants for meal and rest period, minimum wage and
overtime violations pursuant to the California Labor Code.
The Plaintiff contends that throughout her employment with the
Defendants, she performed her job in a capable and competent
manner, and was commended for doing so. Throughout the term of her
employment, she was denied the benefits and protections of the
Labor Code due to the Defendants institutionalized pay practices,
standard as to all of the Defendants California-based, nonexempt,
non-union employees.
The Plaintiff was employed by the Defendants as a non-exempt
employee from August 14, 2017 through October 28, 2019.
Trilogy is a commercial real estate investment and property
management company in San Diego, California.[BN]
The Plaintiff is represented by:
Eric K. Yaeckel, Esq.
Ryan T. Kuhn, Esq.
SULLIVAN & YAECKEL LAW GROUP, APC
2330 Third Avenue
San Diego, CA 92101
Telephone: (619) 702-6760
Facsimile: (619) 702-6761
E-mail: yaeckel@sullivanlawgroupapc.com
ryan@sullivanlawgroupapc.com
TRUFFA PIZZERIA: Ruiz Sues to Recover Unpaid Overtime Wages
-----------------------------------------------------------
Sandy Ruiz, on behalf of himself and all others similarly situated
v. TRUFFA PIZZERIA & WINE ROOM CORP. d/b/a COCINA CHENTE MEXICAN
CUISINE, and MOISES LOPEZ SR., ROMA LOPEZ and JUAN ROSARIO,
individually, Case No. 1:20-cv-08645 (S.D.N.Y., Oct. 16, 2020),
seeks to recover unpaid overtime compensation under the Fair Labor
Standards Act and the New York Labor Law.
Throughout the vast majority of his employment with the Defendants,
the Plaintiff was regularly scheduled to work more than 40 hours
each week. The Plaintiff was scheduled to work between 5 and 6 days
per week. The Plaintiff was usually scheduled to work from 2 pm to
11 pm. However, the Plaintiff did not receive a meal break. The
Plaintiff was paid a flat weekly salary that was not inclusive of
overtime. The Defendants also never discussed overtime compensation
or overtime work with the Plaintiff. The Plaintiff never received
any written record of his regular and/overtime hours worked, says
the complaint.
The Plaintiff was employed by the Defendants as a cook from July
24, 2017 through May 1, 2020.
Cocina Chente is a Mexican restaurant incorporated in the State of
New York.[BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, 3rd floor
New York, NY 10007
Phone: (212) 323-6980
Email: jaronauer@aronauerlaw.com
UNDERGROUND ENTERPRISES: Blind Can't Access Website, Angeles Says
------------------------------------------------------------------
JENISA ANGELES, on behalf of herself and all others similarly
situated, Plaintiffs v. UNDERGROUND ENTERPRISES, INC., Defendant,
Case No. 1:20-cv-08811 (S.D.N.Y., October 22, 2020) is a class
action complaint brought against the Defendant for its alleged
violation of the Americans with Disabilities Act.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using her
computer.
The Plaintiff claims that she was denied a shopping experience
similar to that of a sighted individual when she visited the
Defendant's Website, www.undergroundcellar.com, on multiple
occasions, the last occurring in October of 2020, to make a
purchase. The Website allegedly lacks a variety of features and
accommodations, which effectively barred the Plaintiff from being
able to determine what specific products were offered for sale.
The Plaintiff alleges that the Defendant failed to design,
construct, maintain, and operate its website to be fully accessible
to and independently usable by blind or visually-impaired people
due to its non-compliance with the Web Content Accessibility
Guidelines 2.1, thereby engaging in acts of intentional
discrimination.
Underground Enterprises, Inc. is a wine company that owns and
operates the Website. [BN]
The Plaintiff is represented by:
David P. Force, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Fax: (201) 282-6501
E-mail: dforce@steinsakslegal.com
UNITED BEHAVIORAL: Court Dismisses LD Suit with Leave to Amend
--------------------------------------------------------------
In the case, LD, ET AL., Plaintiffs, v. UNITED BEHAVIORAL HEALTH,
ET AL., Defendants, Case No. 4:20-cv-02254 YGR (N.D. Cal.), Judge
Yvonne Gonzalez Rogers of the U.S. District Court for the Northern
District of California granted the motions to dismiss all claims in
the complaint under Federal Rule of Civil Procedure 12(b)(6), with
leave to amend.
The Plaintiffs bring the putative class action against Defendants
United and Viant, Inc. for claims arising out of United's alleged
failure to reimburse non-party Summit Estate at the Usual,
Customary, and Reasonable Rate ("UCR") for Intensive Outpatient
Program ("IOP") services that it provided to the Plaintiffs. The
Plaintiffs allege that the Defendants' conduct caused them injury,
because it forced them to pay out-of-pocket any amounts that United
failed to reimburse Summit Estate. In the complaint, the
Plaintiffs assert, on their own behalf and on behalf of a proposed
class of similarly-situated United members, claims under the
Employee Retirement Income Security Act of 1974 ("ERISA") and the
Racketeer Influenced and Corrupt Organizations Act ("RICO").
The Plaintiffs are members of active health insurance policies
administered by United. Every such policy provided coverage for
out-of-network benefits for mental health and substance use
disorder treatment at usual, customary, or reasonable rates.
Before obtaining IOP services from Summit Estate, an out-of-network
provider, the Plaintiffs signed a contract with Summit Estate that
makes them responsible for amounts not paid by United. Based on
the "plain language" of the plans, it was understood by all parties
that 100% of UCR was equivalent to 100% of the billed charges of
Summit Estate. United through plan documents, marketing materials,
EOBs, and other materials represented to the Plaintiffs that their
plans would pay for out-of-network IOP services at the UCR amount
according to an objective, empirical methodology.
After receiving the IOP services, claims were submitted to United
for payment according to the "out-of-network rate." Instead of
"paying UCR," United engaged Defendant Viant to "negotiate"
reimbursements. Viant has "financial incentives" to negotiate low
reimbursements. Neither United nor Viant disclosed to the
Plaintiffs the methodology they used for calculating the
reimbursement rates for IOP services.
No plaintiff has an agreement with Viant that permits Viant to
negotiate with providers on his or her behalf. Yet, Viant
represented through written and oral correspondence that it had
authority to negotiate with providers on the patients' behalf.
Every claim at issue in the litigation has been underpaid by United
and overpaid or currently owed by the Plaintiffs and the Class.
United's underpayment of the claims at issue here resulted in
unduly large balance bills to the Plaintiffs.
The Plaintiffs assert the following on their own behalf and on
behalf of a proposed class of members of a health benefit plan
either administered or insured by United whose claims for
out-of-network IOP services were underpaid or repriced by United
and Viant: a claim against (1) both the Defendants under RICO; (2)
United for underpaid benefits under ERISA; (3) United for breach of
plan provisions under ERISA; (4) United for ERISA disclosure
violations under 29 U.S.C. Section 1132(c)(1); (5) United for
breach of fiduciary duties under 29 U.S.C. Section 1109 and 29
U.S.C. Section 1132(a)(3); (6) United for violations of ERISA's
full and fair review statute; and (7) two claims against both
Defendants for equitable relief under 29 U.S.C. Section
1132(a)(3).
The Defendants move to dismiss all claims in the complaint under
Federal Rule of Civil Procedure 12(b)(6) on the grounds that: (1)
all of the claims in the complaint are inadequately pleaded; and
(2) the Plaintiffs lack RICO standing.
Judge Rogers finds that the Plaintiffs' claims under Section
502(a)(1)(B), 29 U.S.C. Section 1132(a)(1)(B), are subject to
dismissal. She concludes that United's motion is well-taken given
the allegations in the complaint. The Plaintiffs' claims are
predicated on allegations that United under-reimbursed Summit
Estate for IOP services it provided to them. They aver that,
pursuant to the "plain language" of their healthcare plans, United
was required, but failed, to reimburse Summit Estate based on UCR,
with UCR being equivalent to 100% of the billed charges of Summit
Estate. The Plaintiffs, however, do not identify the terms of
their plans that require United to reimburse Summit Estate for IOP
services based on UCR or at 100% of Summit Estate's billed charges.
In the absence of allegations that identify the plan terms at
issue, the Plaintiffs fail to raise the reasonable inference that
United breached the terms of their plans.
The Plaintiffs' claim under 29 U.S.C. Section 1132(c)(1) is also
subject to dismissal. Judge Rogers finds that the Plaintiffs have
alleged no factual matter to raise the inference that United was
designated under any plan documents as the plan administrator, or
that United can otherwise be deemed as the plan administrator under
29 U.S.C. Section 1002(16)(A). Courts routinely dismiss with
prejudice claims under 29 U.S.C. Section 1132(c)(1) asserted
against entities that allegedly served as "de facto" administrators
by virtue of having assumed administrative responsibilities.
Accordingly, the claim is subject to dismissal on the basis that
plaintiffs have not alleged facts to show that United can be sued
under 29 U.S.C. Section 1132(c)(1).
Even if United were the plan administrator for the purposes of 29
U.S.C. Section 1132(c)(1), however, the claim would still be
subject to dismissal because the Plaintiffs' allegations do not
give rise to the reasonable inference that United failed to comply
with ERISA's disclosure requirements. To the extent that the
Plaintiffs' 29 U.S.C. Section 1132(c)(1) claim is predicated on the
theory that United's plan documents and other communications, such
as EOBs, were not accurate, that claim fails because the Plaintiffs
have not shown that a claim disputing the accuracy of such
materials can be brought under 29 U.S.C. Section 1132(c)(1).
Finally, to the extent that plaintiffs seek to assert a 29 U.S.C.
Section 1132(c)(1) claim based on the theory that United was
required, but failed, to disclose the methodology it used to
calculate UCR in the context of the reimbursements it provided to
Summit Estate, the claim is subject to dismissal because the
Plaintiffs have not identified any provision of ERISA that requires
disclosure of such information.
The Plaintiffs' claim for breach of fiduciary duties is predicated
on alleged actions by United that were not authorized by the plan
documents. For the reasons she discussed, the Judge holds that the
Plaintiffs have failed to allege any breaches of the plan terms or
the "plan documents" in connection with United's reimbursements for
the IOP services at issue. Accordingly, the claim is subject to
dismissal.
The Plaintiffs' claim for violations of 29 U.S.C. Section 1133 is
also subject to dismissal to the extent that it is based on the
theory that the EOBs were required, but failed, to state the words
"adverse benefit determination," as the Plaintiffs have cited no
authority to support that proposition, rules Judge Rogers.
Moreover, the Plaintiffs' claims under 1132(a)(3) are subject to
dismissal. Regardless of how the Plaintiffs label their requested
remedies, the Judge cannot reasonably infer that such remedies are
permissible under Section 1132(a)(3) in the absence of allegations
raising the inference that the basis and nature of such remedies is
equitable.
Turning to the RICO claim, Judge Rogers holds that the Plaintiffs'
RICO claim under Section 1962(c) is subject to dismissal for
failure to allege facts to satisfy the elements of RICO Section
1962(c) claim. The complaint does not raise the reasonable
inference that the element of reliance is met so as to find that
the Plaintiffs' injuries were proximately caused by the alleged
mail fraud and wire fraud.
Because it is not clear that amendment of the complaint would be
futile, Judge Rogers grants the Plaintiffs leave to amend the
complaint to attempt to allege a cognizable theory for each of the
claims discussed.
For the foregoing reasons, Judge Rogers granted the Defendants'
motions to dismiss with leave to amend. The Plaintiffs may file an
amended complaint within 30 days of the date the Order is filed.
The Defendants may file a response to the amended complaint within
30 days of the date it is filed. The Order terminated Docket
Numbers 33 and 34.
A full-text copy of the Court's Aug. 26, 2020 Order is available at
https://tinyurl.com/y36ke3us from Leagle.com.
UNITED STATES: Court Awards Atty's Fees & Costs in Haggart Suit
---------------------------------------------------------------
In the case, DANIEL and KATHY HAGGART, et al., For Themselves and
As Representatives of a Class of Similarly Situated Persons,
Plaintiffs, v. UNITED STATES, Defendant, Case No. 09-103L (Fed.
Cl.), Judge Charles S. Lettow of the U.S. Court of Federal Claims
granted in part and denied in part (i) the class' motion for fees
and costs and (ii) the Woodleys' motion for Kellogg Hansen's fees
and costs.
The origins of the dispute underlying the pending motions concern
land in the State of Washington that was converted into a
recreational trail pursuant to Section 208 of the National Trails
System Act Amendments of 1983. The Plaintiffs filed suit over a
decade ago, alleging that the conversion constituted a taking of
their property without just compensation.
The Court certified an initial class of over 500 members, which was
subsequently split into six subclasses. In 2012, the Court ruled
on cross-motions for summary judgment, finding the government
liable to certain class members within Subclass Two and Categories
A through D of Subclass Four while also granting the government
summary judgment as to class claimants in Subclass Four, Category
E.
After extensive mediation, the parties reached a settlement in
February 2014. Of the 521 claimants and their 659 parcels of land,
the settlement would dismiss the claims of 268 class members
without compensation and pay $110 million to the remaining 253
class members, plus interest, attorneys' fees, and litigation
costs. After a fairness hearing in March 2014, the Court approved
the settlement and entered final judgment, awarding legal fees to
class counsel through a common fund.
On Jan. 8, 2016, the Federal Circuit vacated the Court's approval
of the settlement because it determined that the class counsel had
provided to the Woodleys and the class members generally inadequate
information for verifying their individual award allocations.
After the Federal Circuit's mandate issued on April 25, 2016, the
Court re-opened discovery to rectify the deficiency of written
notice to the class, enabling the Woodleys and tge other class
members to access detailed documentation that had not previously
been made available to them in electronic form. The informational
defect that the Federal Circuit had identified in the Court's prior
approval of the settlement agreement was cured during this period
of discovery.
Throughout the proceedings until this time, none of the parties had
suggested that the settlement agreement itself had been set aside,
vacated, or altered, except potentially as to the allocation of the
individual amounts. Then for the first time, in an abrupt volte
face in November 2016, the government indicated that it considered
the settlement agreement itself to be invalid. Following up on
that suggestion, on March 1, 2017, the government filed a motion
for reconsideration seeking to undermine the basis of the
settlement agreement and render it invalid. On Aug. 17, 2017, the
Court rejected the government's attempt to negate the
unconditional, comprehensive settlement agreement that the
government executed with the class.
The Plaintiffs then sought approval of a renewed notice to the
class regarding the settlement, which the government opposed on the
same grounds it had raised in its prior post-remand motions. The
Court held a fairness hearing on Dec. 18, 2017 in Seattle,
Washington, in which numerous class members participated. On Jan.
26, 2018, the Court approved the settlement agreement and entered a
partial final judgment under Rule 54(b), enabling the government to
appeal the settlement approval immediately while reserving judgment
on the matter of whether the Plaintiffs could recover statutory
legal fees and costs beyond those already contained within the
settlement agreement itself. Effectively, the Court employed Rule
54(b) to bifurcate its approval of the settlement agreement from
any determination regarding legal fees and costs outside the
settlement agreement.
On the government's subsequent appeal, the Federal Circuit affirmed
the Court's approval of the settlement on Nov. 27, 2019 but
declined to address the government's arguments regarding legal fees
and costs on the jurisdictional ground that the Court had not
previously acted regarding them. The Federal Circuit's mandate
issued on Jan. 21, 2020.
On March 2, 2020, the Plaintiffs filed five separate motions,
representing four different Plaintiffs or groups of the Plaintiffs,
seeking statutory legal fees and costs pursuant to the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of
1970. Following an additional round of motions practice in which
the government sought to compel the production of retainer and fee
agreements from the class counsel, the government individually
responded to each of the fee motions on June 22, 2020. The
Plaintiffs filed replies on July 6, 2020.
The Woodleys seek to recover legal fees and costs incurred both by
the representation of Mr. Woodley himself and later for the
Woodleys' representation by Kellogg Hansen. First, the Woodleys
seek to recover fees for 670.5 hours of time expended by Mr.
Woodley between 2014 and 2020 and an additional $10,674.16 of
related legal costs. Second, they seek to recover legal fees and
costs incurred by their representation by attorneys at Kellogg
Hansen between 2015 and 2020, amounting to $1,059,152.89.
Judge Lettow finds that the situation changed after the government
filed its motions seeking to overturn the settlement agreement on
March 1, 2017. From that point forward, the primary emphasis of
the legal work performed by Kellogg Hansen on behalf of the
Woodleys shifted from resolving the disputed informational and
allocation issues to defending, both in the Court and on appeal,
against the government's attempts to vacate the agreement. Those
expenses were not comprehended by any of the aspects of the
settlement agreement itself or the earlier proceedings related to
the agreement. Consequently, the Woodleys may recover reasonable
legal fees and costs incurred in retaining representation by
Kellogg Hansen on and after March 1, 2017.
After the Federal Circuit's decision vacating the first approval of
the settlement agreement, Cleveland Square and 25 other class
members obtained representation by Hillis Clark Martin & Peterson
P.S. In addition to the portion they received as part of the
settlement agreement, the Cleveland Square group now seeks to
recover legal fees it paid to Hillis Clark amounting to $244,372
and costs of $4,243.92.
Judge Lettow opines that Cleveland Square's retention of
independent counsel may have obtained for it a larger overall
amount derived from a separate agreement with, and payment from,
the class counsel, but there is no evidence to show that it
provided a benefit to the class as a whole. Notably, the counsel
for the Cleveland Square group did not seek to enter an appearance
in the litigation until July 14, 2017. That was 71 days after the
Court had entered an opinion and order denying the government's
motions that sought to overturn the settlement agreement and
granting the motion by the class counsel to enforce the agreement.
In short, the parameters of the remanded case had been set in place
before, not after, Cleveland Square's counsel sought to appear.
Cleveland Square's separate representation thus generated no
benefit to the broader class. Accordingly, Cleveland Square is not
entitled to any legal fees or costs.
Class members Mr. Ghoddoussi and Westpoint retained Goodstein Law
Group PLLC to represent them on May 18, 2017. They now seek legal
fees incurred to retain Goodstein pursuant to a contingent fee
agreement in the amount of $143,044. They also seek $69,035 to
reimburse Goodstein's costs, as well as time and expenses expended
by Mr. Ghoddoussi for valuable assistance in preparation of the
litigation and various costs he incurred to retain expert title
officers, appraisers, surveyors, a railroad mapping service, and
engineers even before he retained Goodstein.
As he previously noted, Judge Lettow holds that fees and costs may
only be awarded if they provided a benefit to the entire class.
Mr. Ghoddoussi and Westpoint indicate in their brief that
Goodstein's representation assisted them in obtaining more proceeds
than before. They have not, however, produced any evidence tending
to show that the legal fees and costs they seek to recover
generated any benefit to the broader class. Moreover, as with the
Cleveland Square group, the counsel's motion for separate
representation of Mr. Ghoddossi and Westpoint was first filed on
June 16, 2017, 43 days after the Court had ordered that the
settlement agreement was enforceable and effective and should be
enforced. Accordingly, Mr. Ghoddoussi and Westpoint are not
entitled to any additional fees or costs.
Having determined that the class and the Woodleys are entitled to
recover legal fees and costs incurred on and after March 1, 2017,
Judge Lettow addresses and assesses the reasonableness of the
amounts sought. The firm Stewart, Wald & McCulley, served as the
class counsel throughout the litigation and during the period
relevant. Stewart Wald retained Sidley Austin LLP to handle the
appellate portion of the litigation. The class thus seeks to
recover reasonable fees and costs attributable to representation by
both Stewart Wald and Sidley Austin. The firm Kellogg Hansen
represented the Woodleys during the period relevant.
The class seeks to recover legal fees attributable to Stewart
Wald's representation from Jan. 8, 2016 through Feb. 15, 2020,
amounting to $3,049,425.50. They likewise seek costs for the same
period in the amount of $293,550.32. In its reply brief, the class
increased those amounts, seeking an additional $184,354 in fees and
$217.90 in costs incurred between Feb. 15, 2020 and July 6, 2020.
As he already noted, Judge Lettow declines to award fees and costs
incurred before March 1, 2017. During the more limited time period
beginning on March 1, 2017 and extending through Feb. 15, 2020, the
Court calculates that six timekeepers at Stewart Wald expended
4,186.70 hours on the matter, incurring fees amounting to
$2,008,830.50. During that same period, Stewart Wald incurred
expenses of $196,124.73. Accordingly, including the additional
amounts sought for the period after Feb. 15, 2020, the total amount
of legal fees and costs sought and potentially recoverable by the
class is $2,389,527.13. Accordingly, finding the hours, rates, and
costs charged by Stewart Wald reasonable, Judge Lettow awards the
class $2,389,527.13 in legal fees and costs.
The class next seeks to recover legal fees attributable to Sidley
Austin's representation as the class counsel's appellate counsel
for the second appeal from 2018 through Feb. 15, 2020. Sidley
Austin expended 476.75 hours during this time, amounting to
$595,393.75 in fees. They likewise seek costs for the same period
in the amount of $7,832.96. The class supplemented those amounts
in its reply brief, seeking an additional $22,335 in fees for an
additional 21.25 hours and $16,178.41 in costs attributable to the
period from Feb. 15, 2020 to July 6, 2020. In sum, the class seeks
a total of $641,740.12 for legal fees and costs attributable to
Sidley Austin's representation.
Judge Lettow is satisfied that the rates charged by the team
assembled by Mr. Carter G. Phillips are reasonable. Nevertheless,
he is also mindful that Mr. Phillips' rate of $2,000 per hour
exceeds by $700 the next highest rate charged by Sidley Austin on
the matter and considers that difference unwarranted by the
circumstances at hand. Therefore, to address and somewhat limit
this disparity, the Judge reduces the hourly rate recoverable for
Mr. Phillips' work on the matter to $1,500, which reflects a
one-quarter reduction. Accordingly, applying that reduced rate to
the 133.75 hours Mr. Phillips recorded, the Judge awards the class
$552,228.75 for Sidley Austin's legal fees.
Judge Lettow also must assess the reasonableness of the $24,011.37
costs incurred by Sidley Austin. The government's response brief
does not specifically address or challenge any of the costs
requested by Sidley Austin. Having reviewed the detailed listing
of the claimed costs, the Judge is satisfied that they were
reasonable and necessary expenses customarily charged.
Accordingly, he awards the class $576,240.12 in legal fees and
costs attributable to the representation by Sidley Austin.
In their initial motion, the Woodleys sought to recover legal fees
and costs attributable to Kellogg Hansen's representation from
February 2015 through February 2020, amounting to $1,059,152.89.
In their reply brief, the Woodleys increased that amount to
$1,089,071.21, requesting an additional $29,918.32 to account for
additional time and expense incurred between March and June 2020.
In sum, the Woodleys' seek a total of $1,089,071.21 in legal fees
and costs attributable to Kellogg Hansen's representation between
February 2015 and June 2020.
Judge Lettow is satisfied that the rates charged by Kellogg
Hansen's attorneys are reasonable. He is equally satisfied that
the $10,219.04 in costs were reasonably incurred by Kellogg Hansen
from March 1, 2017 through July 6, 2020.
For the reasons stated, Judge Lettow denied the Woodleys' motion
for pro se fees and costs, Mr. Ghoddoussi's corresponding motion,
and Cleveland Square's comparable motion.
He granted in part and denied in part the class' motion and the
Woodleys' motion for Kellogg Hansen's fees and costs. The class is
awarded reasonable legal fees and costs attributable to the
representation provided by Stewart Wald in the amount of
$2,389,527.13. The class is also awarded reasonable legal fees and
costs attributable to the representation provided by Sidley Austin
in the amount of $576,240.12. The Woodleys are awarded reasonable
legal fees and costs attributable to the representation provided by
Kellogg Hansen in the amount of $497,449.
The clerk is directed to enter final judgment accordingly. No
further costs.
A full-text copy of the Court's Aug. 12, 2020 Opinion & Order is
available at https://tinyurl.com/y6efxcwy from Leagle.com.
Thomas S. Stewart -- Stewart@swm.legal -- Stewart Wald & McCulley
LLC, Kansas City, Missouri, for plaintiffs Daniel Haggart and Kathy
Haggart, et al. With him on the briefs were Elizabeth G. McCulley,
Stewart Wald & McCulley LLC, Kansas City, Missouri, Steven M. Wald
and Michael J. Smith, Stewart Wald & McCulley LLC, St. Louis,
Missouri.
David C. Frederick -- dfrederick@kellogghansen.com -- Kellogg,
Hansen, Todd, Figel & Frederick, PLLC, Washington, D.C., for
plaintiffs Gordon A. Woodley and Denise L. Woodley.
Mary Crego Peterson -- mary.peterson@hcmp.com -- Hillis Clark
Martin & Peterson P.S., Seattle, Washington, for plaintiff
Cleveland Square, LLC and twenty-five others.
Richard B. Sanders, Goodstein Law Group PLLC, Tacoma, Washington,
for plaintiffs Faramarz Ghoddoussi and Westpoint Properties, LLC.
Lucinda J. Bach -- lucinda.bach@usdoj.gov -- Trial Attorney,
Natural Resources Section, Environment and Natural Resources
Division, United States Department of Justice, Washington, D.C.,
for defendant. With her on the briefs were Prerak Shah, Deputy
Assistant Attorney General, Environment and Natural Resources
Division, and Sarah Izfar, Trial Attorney, Natural Resources
Section, Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.
UNITED THERAPEUTICS: Class Suit by MSP Recovery Claims Ongoing
--------------------------------------------------------------
United Therapeutics Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 28, 2020,
for the quarterly period ended September 30, 2020, that the company
continues to defend a class action suit initiated by MSP Recovery
Claims, Series LLC; MSPA Claims 1, LLC; and Series PMPI.
On July 27, 2020, MSP Recovery Claims, Series LLC; MSPA Claims 1,
LLC; and Series PMPI, a designated series of MAO-MSO Recovery II,
LLC (Plaintiffs) filed a "Class Action Complaint" against Caring
Voices Coalition, Inc. (CVC) and the company in the United States
District Court for the District of Massachusetts.
The Complaint alleges that the company violated the federal
Racketeer Influenced and Corrupt Organizations (RICO) act and
various state laws by coordinating with CVC when making donations
to a pulmonary arterial hypertension fund so that those donations
would go towards copayment obligations for Medicare patients taking
drugs manufactured and marketed by the company.
Plaintiffs claim to have received assignments from various Medicare
Advantage health plans and other insurance entities that allow them
to bring this lawsuit on behalf of those entities.
United Therapeutics said, "We intend to vigorously defend against
this lawsuit."
Silver Spring, Md.-based United Therapeutics Corporation develops
and commercializes therapeutic products for patients with chronic
and life-threatening diseases. The Company offers products
primarily in three therapeutic areas, including cardiovascular,
cancer, and infectious diseases.
UNUM GROUP: Appeal in Tennessee Securities Class Suit Pending
-------------------------------------------------------------
Unum Group said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 28, 2020, for the quarterly
period ended September 30, 2020, that the plaintiffs in the
consolidated class action suit entitled, In re Unum Group
Securities Litigation, have taken an appeal with the Sixth Circuit
Court of Appeals.
Three alleged securities class action lawsuits have been filed
against Unum Group and individual defendants as follows:
-- On June 13, 2018, an alleged securities class action
lawsuit entitled Cynthia Pittman v. Unum Group, Richard McKenney,
John McGarry, and Daniel Waxenberg was filed in the United States
District Court for the Eastern District of Tennessee.
The plaintiff seeks to represent purchasers of Unum Group publicly
traded securities between January 31, 2018 and May 2, 2018.
The plaintiff alleges the Company caused its shares to trade at
artificially high levels by failing to disclose information about
the rate of long-term care policy terminations and long-term care
claim incidence resulting in misleading statements about capital
management plans and long-term care reserves.
The complaint asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 thereunder and seeks
compensatory damages in an amount to be proven at trial.
The Company strongly denies these allegations and will vigorously
defend the litigation.
-- On July 13, 2018, an alleged securities class action
lawsuit entitled Scott Cunningham v. Unum Group, Richard McKenney,
John McGarry, and Daniel Waxenberg was filed in the United States
District Court for the Eastern District of Tennessee. The
allegations, class period, and damages claimed mirror those in the
Pittman matter.
The Company strongly denies these allegations and will vigorously
defend the litigation.
-- On July 25, 2018, an alleged securities class action
lawsuit entitled City of Taylor Police and Fire Retirement System
v. Unum Group, Richard McKenney, John McGarry, Steve Zabel, and
Daniel Waxenberg was filed in the United States District Court for
the Eastern District of Tennessee.
The plaintiff seeks to represent purchasers of Unum Group publicly
traded securities between October 27, 2016 and May 1, 2018. The
allegations and damages claimed mirror those in the Pittman matter.
The Company strongly denies these allegations and will vigorously
defend the litigation.
On November 9, 2018, the court consolidated the Pittman,
Cunningham, and City of Taylor Police and Fire Retirement System
cases into one matter entitled In re Unum Group Securities
Litigation, appointed a lead plaintiff and lead plaintiff's
counsel, and directed the plaintiff to file a consolidated amended
complaint.
On January 15, 2019, the plaintiff filed a consolidated amended
complaint asserting claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 thereunder and seeks
compensatory damages in an amount to be proven at trial as well as
costs, expenses, and attorney's fees.
On March 18, 2019, the Company filed a motion to dismiss the
consolidated amended complaint. On November 4, 2019, the court
heard oral argument on the motion.
On June 1, 2020, the court granted the Company's motion and
dismissed the cases with prejudice.
On June 26, 2020, the plaintiffs filed a notice of appeal with the
Sixth Circuit Court of Appeals.
The appeal is in a very preliminary stage and the outcome is
uncertain. We believe the appeal and the underlying claims lack
merit and reserves have not been established for these matters as
we are unable to estimate a range of reasonably possible losses.
However, an adverse outcome in one or more of these actions could,
depending on the nature, scope, and amount of any ruling,
materially adversely affect our consolidated results of operations
in a period.
Unum Group, together with its subsidiaries, provides financial
protection benefit solutions in the United States, the United
Kingdom, and internationally. It operates through Unum US, Unum
International, Colonial Life, and Closed Block segments. The
company was founded in 1848 and is based in Chattanooga,
Tennessee.
VEECO INSTRUMENTS: Still Defends Wolther Class Suit in California
-----------------------------------------------------------------
Veeco Instruments Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 27, 2020, for the
quarterly period ended September 30, 2020, that the company
continues to defend a consolidated purported class action suit
entitled, Wolther v. Maheshwari et al.
On June 8, 2018, an Ultratech shareholder who received Veeco stock
as part of the consideration for the Ultratech acquisition filed a
purported class action complaint in the Superior Court of the State
of California, County of Santa Clara, captioned Wolther v.
Maheshwari et al., Case No. 18CV329690, on behalf of himself and
others who purchased or acquired shares of Veeco pursuant to the
registration statement and prospectus which Veeco filed with the
SEC in connection with the Ultratech acquisition (the "Wolther
Action").
On August 2 and August 8, 2018, two purported class action
complaints substantially similar to the Wolther Action were filed
on behalf of different plaintiffs in the same court as the Wolther
Action. These cases have been consolidated with the Wolther Action,
and a consolidated complaint was filed on December 11, 2018.
The consolidated complaint seeks to recover damages and fees under
Sections 11, 12, and 15 of the Securities Act of 1933 for, among
other things, alleged false/misleading statements in the
registration statement and prospectus relating to the Ultratech
acquisition, relating primarily to the alleged failure to disclose
delays in the advanced packaging business, increased MOCVD
competition in China, and an intellectual property dispute.
Veeco is defending this matter vigorously.
No further updates were provided in the Company's SEC report.
Veeco Instruments Inc., together with its subsidiaries, develops,
manufactures, sells, and supports semiconductor and thin film
process equipment primarily to make electronic devices worldwide.
Veeco Instruments Inc. was founded in 1989 and is headquartered in
Plainview, New York.
VITA-MIX CORP: 6th Cir. Vacates Atty.'s Fees Award in Linneman Suit
-------------------------------------------------------------------
In the case, VICKI A. LINNEMAN and OBADIAH N. RITCHEY, on behalf of
themselves and those similarly situated, Plaintiffs-Appellees, v.
VITA-MIX CORPORATION, VITA-MIX MANAGEMENT CORPORATION, and VITA-MIX
MANUFACTURING CORPORATION, Defendants-Appellants, Case Nos.
19-3993, 19-4249 (6th. Cir.), a three-judge panel of the U.S. Court
of Appeals for the Sixth Circuit vacated the district court's award
of attorney's fees.
What began as a case about defective blenders has devolved into a
quarrel about attorney's fees. Vita-Mix is a family-owned company
that manufactures and sells high-performance blenders. Several
years ago, the company learned that some of its blenders contained
tiny black flecks after use. Vita-Mix determined that these flecks
were polytetrafluoroethylene -- a substance commonly used in
kitchen appliances and used in the seals of its blenders. Normal
wear-and-tear would cause tiny pieces -- so tiny they were almost
invisible to the naked eye -- to rub off from the seal and end up
in the blender container.
Because of that defect, the named Plaintiffs (owners of Vita-Mix
blenders) filed the class action, alleging various claims against
the company under state law. The parties soon entered into
settlement negotiations and eventually agreed to a proposed
settlement. The settlement provided for two classes of Plaintiffs:
a household class and a commercial class.
The Class members who owned a household blender could request
either a $70 gift card or a replacement blade assembly, which
included a non-flecking blender seal. (Those with multiple
household blenders were eligible for a $140 gift card.) In
contrast, the class members who owned a commercial blender could
request only a replacement blade assembly. The settlement also
specified that class counsel was entitled to attorney's fees but
that the parties had not agreed on the amount. The district court
preliminarily approved this settlement in late 2017.
The parties then spent most of the next two years arguing about
attorney's fees. The district court ultimately decided to
calculate the fees by multiplying the hours the class counsel
reasonably worked on the case by a reasonable hourly rate. That
calculation resulted in a fees award of a little over $2.2 million.
But based on the purportedly exceptional nature of the litigation,
the court enhanced the figure by 75% for a final award of just
under $4 million. Vita-Mix appealed that decision. The district
court later awarded post-judgment interest on the fees award.
Vita-Mix appealed that order too.
Vita-Mix raises a host of challenges to the district court's award
of attorney's fees.
The Panel considers several questions of first impression about
attorney's fees in class-action settlements. It holds that the
district court correctly held that Section 1712 permitted it to use
the lodestar method in the case. The district court held that the
gift cards in the case qualify as "coupons" under CAFA and thus
that Section 1712 applies. The question for the Panel is whether
Section 1712 permitted the district court to use the lodestar
method (rather than the percentage method) when it calculated the
attorney's fees in the case.
The Panel holds that Section 1712 requires a district court to use
the redemption rate only when the it calculates fees based on the
percentage method; it doesn't prohibit it from using the lodestar
method instead. And nothing in Section 1712 instructs district
courts to conduct a crosscheck. And the Court has repeatedly said
that district courts are not required to conduct a crosscheck in
every case. The district court will often abuse its discretion if
it fails to consider the redemption rate as part of that analysis.
The point is simply that Section 1712 does not require district
courts to calculate attorney's fees based on the percentage method
in every coupon settlement.
Vita-Mix next argues that the settlement agreement places certain
limits on any award of attorney's fees. The Panel holds that the
district court correctly interpreted the settlement agreement.
First, it finds that the agreement does say that the class counsel
can seek attorney's fees under Civil Rules 23(h) and 54(d)(2),
which provide for "reasonable" fees. And courts have long
recognized that "reasonable" attorney's fees can include a
multiplier in limited circumstances. Second, the Plaintiffs'
complaint included a request for attorney's fees as part of the
prayer for relief. And the district court didn't terminate the
case from its docket until after it decided the fees dispute. If
Vita-Mix had wanted to limit the fees to those incurred by the
class counsel in obtaining the settlement, the settlement agreement
could have said as much. But it didn't. Thus, the settlement
allowed the district court to award fees-on-fees.
Vita-Mix also argues that the district court abused its discretion
when it calculated the award of attorney's fees. The company
challenges various aspects of the award, but its arguments can be
grouped into three general issues: (1) the determination of the
billing rates, (2) the use of an upward multiplier, and (3) the
reasonableness of the final award.
The Panel holds that the district court abused its discretion when
it calculated the award of attorney's fees. The district court
first abused its discretion when it determined the billing rates.
It then erred when it determined the billing rates based on the
class counsel's affidavits. The district court next abused its
discretion when it used an upward multiplier. It also abused its
discretion as to the reasonableness of the attorney's fees. On
remand, the district court should recalculate the award in light of
its opinion. It leaves to the district court's discretion whether
to permit new evidence.
Finally, Vita-Mix argues that the district court erred when it
ordered post-judgment interest on the award of attorney's fees
under 28 U.S.C. Section 1961. The Panel finds that the district
court correctly held that Section 1961 applies in the case. The
whole point of Section 1961 is to ensure that a successful party
receives compensation for any delay in the time it takes for the
opposing party to pay up. The Panel's reading of Section 1961 does
little to undermine the freedom-of-contract principles underlying
settlements. But since Vita-Mix hasn't argued that the parties
contracted around Section 1961 in their settlement agreement, it
can leave the issue for another day. On remand, the district court
should recalculate the post-judgment interest in light of any
changes to its fees award.
The Panel concludes that it agrees with the district court on many
issues but finds that it abused its discretion as to the final
award of fees. The Panel, therefore, vacated the award and
remanded for further proceedings.
A full-text copy of the Court's Aug. 12, 2020 Opinion is available
at https://tinyurl.com/yylvagkd from Leagle.com.
ARGUED: John M. Fitzgerald -- jfitzgerald@tdrlawfirm.com -- TABET
DIVITO & ROTHSTEIN, LLC, Chicago, Illinois, for Appellants.
W. B. Markovits -- bmarkovits@msdlegal.com -- MARKOVITS, STOCK &
DEMARCO, LLC, Cincinnati, Ohio, for Appellees.
ON BRIEF: John M. Fitzgerald, TABET DIVITO & ROTHSTEIN, LLC,
Chicago, Illinois, Tracey L. Turnbull -- tturnbull@porterwright.com
-- PORTER WRIGHT MORRIS & ARTHUR, LLP, Cleveland, Ohio, Caroline H.
Gentry -- cgentry@porterwright.com -- PORTER WRIGHT MORRIS &
ARTHUR, LLP, Dayton, Ohio, for Appellants.
W. B. Markovits, Paul M. DeMarco -- pdemarco@msdlegal.com -- Justin
C. Walker -- justin@finneylawfirm.com -- Terence R. Coates --
tcoates@msdlegal.com -- MARKOVITS, STOCK & DEMARCO, LLC,
Cincinnati, Ohio, Jeffrey S. Goldenberg -- jgoldenberg@gs-legal.com
-- GOLDENBERG SCHNEIDER, L.P.A., Cincinnati, Ohio, for Appellees.
VITALE'S ITALIAN: 2nd Conditional Class Certification Bid OK'd
--------------------------------------------------------------
In the class action lawsuit captioned as EMILIO TORRES v. VITALE'S
ITALIAN RESTAURANT, INC., SALVATORE VITALE, and BELINDA PIERSON,
Case No. 1:18-cv-547 (W.D. Mich.), the Hon. Judge Ray Kent entered
an order:
1. granting the Plaintiff's second motion for conditional
certification in a collective action pursuant to 29 U.S.C.
section 216(b);
2. conditionally certifying a collective action for unpaid
overtime wages pursuant to 29 U.S.C section 216(b)
defined as:
"current and former employees of Vitale's Italian
Restaurant, Inc. d/b/a Vitale's Grand Rapids who were not
compensated at a rate of time and one half their regular
rate for any hours worked in excess of 40 hours in a
workweek at any time from May 15, 2015, to the present."
3. directing the Defendants to provide plaintiffs with the
names, all known addresses, e-mail addresses, all known
phone numbers and the dates of employment of all Class
Members;
4. approving the Plaintiffs' proposed "Notice of right to
join lawsuit" to be sent to the Class Members, via
traditional mail, email, text, and/or social media with a
90 day opt-in period; and
5. appointing the Avanti Law Group, PLLC as interim class
counsel.
According to plaintiff's amended complaint, defendants engaged in a
common policy or plan which involved: using two time cards; paying
employees with checks for the regular hours worked (as reflected on
the first time card); paying employees at their regular hourly
rates for overtime hours worked (as reflected on the second time
card); and, paying the overtime hours without withholding income
taxes. In his present motion, the plaintiff seeks conditional
certification of a class based on a much narrower common policy,
i.e., the current and former employees "were not compensated at a
rate of time and one half their regular rate for any hours worked
in excess of 40 hours in a workweek at any time from May 15, 2015,
to the present."
The Court said Torres' affidavit and Whiteside's declaration have
met the "fairly lenient" standard at the first stage, and establish
at least a colorable basis for plaintiff's claim that a class of
similarly situated plaintiffs exists. While the plaintiff was
employed as both a kitchen supervisor and a line cook, he was paid
at an hourly rate, and was not compensated at a rate of time and
one-half for "the majority" of his hours worked over 40 in a
workweek. The Plaintiff's new class definition identifies Vitale's
common policy as a policy not to pay overtime. This is an adequate
policy. "It is enough that plaintiff makes a modest factual showing
sufficient to demonstrate that they and potential plaintiffs
together were victims of a common policy or plan that violated the
law, to wit, that defendant failed to lawfully compensate all
potential plaintiffs for their work."
A copy of the Court's Order granting the plaintiff's second motion
for conditional certification of a collective action is available
from PacerMonitor.com at https://bit.ly/3lrj9ct at no extra
charge.[CC]
WAL-MART STORES: Has 45 Days to Finalize Neal Suit Settlement
-------------------------------------------------------------
In the case, Curtis Neal, on behalf of himself and others similarly
situated, Plaintiff, v. Wal-Mart Stores, Inc., d/b/a Walmart and
Synchrony Bank, f/k/a GE Capital Retail Bank, Defendants. Roy
Campbell on behalf of himself and all others similarly situated,
Plaintiff, v. Synchrony Bank, Defendant, Civil Action No.
3:17-cv-00022 (W.D. N.C.), Judge Kenneth D. Bell of the U.S.
District Court for the Western District of North Carolina,
Charlotte Division, gave the parties 45 days to finalize their
class action settlement agreement and for the Plaintiffs to file
their motion for preliminary approval of the class action
settlement.
The matter is before the Court on the parties' Notice of Class
Action Settlement. The parties state that they have reached an
agreement "in principle" to settle the matter. Having carefully
considered the parties' filing, Judge Bell suspended all case
deadlines and consideration of pending motions until further order
of the Court.
In the event the parties are unable to finalize the settlement
agreement, they are to notify the Court by the end of the 45-day
period.
A full-text copy of the Court's Aug. 19, 2020 Order is available at
https://tinyurl.com/y2j7yc52 from Leagle.com.
WALGREEN CO: Caves Class Suit Settlement Gets Initial Approval
--------------------------------------------------------------
In the case, GLORIA CAVES and TAMIM KABIR, On Behalf of Themselves
and All Others Similarly Situated, Plaintiffs, v. WALGREEN CO.,
Defendant, Case No. 2:18-cv-02910-MCE-DB (E.D. Cal.), Judge Morris
C. England, Jr. of the U.S. District Court for the Eastern District
of California, Sacramento Division, granted the Plaintiffs' motion
for order preliminarily approving the Parties' settlement,
certifying a settlement class, appointing the settlement class
counsel, setting a hearing on the final approval of the settlement,
and directing notice to the class.
The Defendant joined in the Plaintiffs' request for an order
preliminarily approving the Parties' settlement.
Judge England granted preliminary approval of the Settlement based
upon the terms set forth in the Settlement Agreement. The terms of
the Settlement Agreement are sufficiently fair, reasonable, and
adequate to allow dissemination of the Notice according to the
Notice Program.
Judge England appointed the following attorneys as the counsel for
the Settlement Class: James C. Shah of Shepherd, Finkelman, Miller
& Shah, LLP, and John F. Edgar of Edgar Law Firm, LLC.
The Notice and provisions for disseminating notice are approved.
Settlement Administrator Simpluris will be responsible for
providing notice of the proposed Settlement to the Settlement Class
Members in accordance with the provisions of the Settlement
Agreement and to the appropriate state and federal officials as
directed under the Class Action Fairness Act.
Simpluris will mail the Notice to the identified Settlement Class
Members per the Notice Program within 30 days of the entry of the
Order. On the same date, it will make an informational settlement
website available to the public. Anyone who wishes to be excluded
from the Settlement Class must submit a written request for
exclusion and must be postmarked within 45 days from the Notice
Date. The Court will rule on the validity of exclusions at the
Final Approval Hearing.
Any Settlement Class Member who wishes to object to the proposed
Settlement must send or file an objection with the Court within 45
days from the Notice Date. A copy of such papers being filed in
support of any Objection will also be mailed to Simpluris,
Settlement Administrator, P.O. Box 26170 Santa Ana, CA 92799.
No less than 10 days prior to the Final Approval Hearing, the
Claims Administrator will provide to the Parties a declaration
attesting that the Class Notice was disseminated in a manner
consistent with the terms of the Settlement Agreement.
The Class Counsel will file with the Court their petition for
payment of attorneys' fees and reimbursement of litigation costs
and expenses no later than 15 days prior to the Objection and Opt
out deadline.
At least 28 days prior to the date set for the Final Approval
Hearing, the Plaintiff will file a motion for judgment and final
approval of the Settlement. The Parties will file their briefs in
support of settlement approval, as well as any supplemental briefs
supporting the Class Counsel's motion for attorneys' fees and
reimbursement of litigation costs, at that time.
If any Settlement Class Members object or opt-out after Plaintiff
files the motion for final approval, the Parties will file
supplemental briefing no later than seven days prior to the date
set for the Final Approval Hearing, setting forth the Parties'
responses to such Objections and the number of opt-outs. If
appropriate, the parties will include supplemental briefing on
Class Counsel's motion for attorneys' fees at that time.
On Feb. 11, 2021, the Court will hold the Final Approval Hearing.
Pending further orders by the Court, all proceedings in the case
will be stayed, except for proceedings pursuant to the Order.
The Class Counsel and the Defense Counsel are authorized to
establish other means necessary to effectuate the terms of the
Settlement Agreement.
The Court has received filings on behalf of various "class members
and objectors." These individuals are not party to the action, and
it is premature for the Court to entertain their objections and any
requests included therein. Accordingly, those filings at ECF Nos.
34 and 41 are stricken.
A full-text copy of the Court's Aug. 12, 2020 Order is available at
https://tinyurl.com/yysvm53m from Leagle.com.
WB STUDIO: Fails to Pay Minimum & Overtime Wages, Ettedgui Claims
-----------------------------------------------------------------
DAVID ETTEDGUI, on behalf of the State of California, as a private
attorney general, v. WB STUDIO ENTERPRISES INC., a Corporation; and
DOES 1 through 50, inclusive, Case No. 20BBCV00719 (Cal. Super.,
Los Angeles Cty., Oct. 19, 2020), is brought on behalf of the
Plaintiff and all current and former aggrieved employees who worked
for the Defendants, seeking to recover anything other than
penalties as permitted by the California Labor Code.
As a proximate result of the Defendants' willful, knowing, and
intentional violation(s) of the Labor Code section 1102.5, the
Plaintiff has suffered and continues to suffer humiliation,
emotional distress, and mental and physical pain and anguish, all
to their damage in a sum according to proof, says the complaint.
The Plaintiff was employed by the Defendant in California from
December 4, 2019 to January 4, 2020 as a Tour Guide/Floater and was
at all times classified by the Defendant as a non-exempt employee,
paid on an hourly basis, and entitled to the legally required meal
and rest periods and payment of minimum and overtime wages due for
all time worked.
The Defendant operates as an entertainment company. The Company
engages in the creation, production, distribution, licensing and
marketing of all forms of entertainment and their related
businesses.[BN]
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
Nicholas J. De Blouw, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Telephone: (858) 551-1223
Facsimile: (858) 551-1232
WHC LLC: Garcia Seeks Proper Overtime Pay Under FLSA
----------------------------------------------------
Mario A. Garcia Jr., on behalf of himself and all others similarly
situated, v. WHC, LLC, Case No. 7:20-cv-00331 (S.D. Tex., Oct. 16,
2020), is brought by the Plaintiff pursuant to the federal Fair
Labor Standards Act and the federal Portal-to-Portal Pay Act for
the Defendant's failure to pay the Plaintiff time and one-half his
regular rate of pay for all hours worked over 40 during each seven
day workweek.
The Plaintiff worked for the Defendant from April 2018 through
August 2020 as an hourly-paid employee. The putative Collective
Action Members are all current and former hourly-paid employees of
the Defendant who were not paid time and one-half their respective
regular rates of pay for all hours worked over 40 during each seven
day workweek due to the Defendant's failure to include remuneration
designated as per diem pay and/or "Welder Rig Pay."
WHC, LLC offers construction management services. The Company
provides gas pipeline construction, pipeline recoating, facility
upgrades, in-house fabrication, sandblasting, painting, metering
station construction, and pump station construction services.[BN]
The Plaintiff is represented by:
Ricardo J. Prieto, Esq.
Melinda Arbuckle, Esq.
SHELLIST | LAZARZ | SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: rprieto@eeoc.net
marbuckle@eeoc.net
tjones@eeoc.net
WILLOUGHBY REHAB: Cert. Ruling/Protective Order in Olmann Upheld
----------------------------------------------------------------
In the case, JOSEPH OLMANN, ETC., Appellant, v. WILLOUGHBY
REHABILITATION AND HEALTH CARE CENTER, LLC, ET AL., Respondents,
Case 2016-07212, 2017-07645, Index No. 514289/15 ( N.Y. App. Div.),
the Appellate Division of the Supreme Court of New York, Second
Department, (i) modified and affirmed the order of the Supreme
Court, Kings County, dated June 20, 2017, denying the Plaintiff's
motion for class certification; and (ii) modified and affirmed the
court's order dated May 11, 2016, denying the Plaintiff's motion
for a protective order.
In the putative class action, inter alia, to recover damages for
negligence and violation of Public Health Law Section 2801-d, the
plaintiff appeals from (1) an order of the Supreme Court, Kings
County (Judge Gloria M. Dabiri), dated May 11, 2016, and (2) an
order of the same court dated June 20, 2017. The order dated May
11, 2016, denied the Plaintiff's motion pursuant to CPLR 3103(a)
for a protective order. The order dated June 20, 2017, insofar as
appealed from, denied the Plaintiff's motion pursuant to CPLR 901
and 902 for class certification and denied stated portions of their
separate motion pursuant to CPLR 3124 to compel the Defendants to
comply with his discovery demand.
Decedent Marie C. Olmann was a resident of the defendant Spring
Creek Rehabilitation & Nursing Care Center, a nursing home, from
June 2012 to January 2014. In November 2015, the Decedent's son,
Plaintiff Olmann, individually and as the proposed administrator of
her estate, and purportedly on behalf of all others similarly
situated, commenced the putative class action against Spring Creek
and its owner, the Defendant Willoughby Rehabilitation, inter alia,
to recover damages for negligence and violation of Public Health
Law Section 2801-d. The Plaintiff alleged that the decedent and
other residents at Spring Creek sustained injuries attributable to
substandard nursing care. He was subsequently appointed the
administrator of the Decedent's estate, and the caption was amended
to reflect that appointment.
Thereafter, the Plaintiff moved pursuant to CPLR 3103(a) for a
protective order to allow for the disclosure of confidential health
information of other residents at Spring Creek. In an order dated
May 11, 2016, the Supreme Court denied that motion as premature and
overly broad. He also moved pursuant to CPLR 901 and 902 for class
certification and separately moved pursuant to CPLR 3124 to compel
the defendants to comply with his discovery demands. In an order
dated June 20, 2017, the court, inter alia, denied his motion for
class certification and denied stated portions of his motion to
compel the Defendants to comply with his discovery demands. The
Plaintiff appeals.
According to the Appellate Court, under the circumstances
presented, the Supreme Court providently exercised its discretion
in denying the Plaintiff's motion for a protective order to allow
for disclosure of confidential health information of other Spring
Creek residents. Contrary to the Plaintiff's contention, the
Supreme Court also providently exercised its discretion in denying
his motion for class certification.
However, the Appellate Court held that the Supreme Court should
have granted those branches of the Plaintiff's motion which were to
compel the Defendants to comply with (1) his discovery demand
number 30, (2) his discovery demand number 32 to the extent that it
demands "all documents relating to meals provided to" the Decedent,
(3) his discovery demand number 33 to the extent that it demands
"all documents relating to bed changing records for" the Decedent,
(4) his discovery demand number 34 to the extent that it demands
"all documents relating to the movement of" the Decedent, (5) his
discovery demand number 35 to the extent that it demands "all
documents relating to the washing of" the Decedent, (6) his
discovery demand number 36 to the extent that it demands "all
documents relating to the change of position of" the Decedent, and
(7) his discovery demand number 51.
Those demands related to the Decedent's care, the staffing of
nurses and nursing assistants who provided care to the Decedent,
and complaints or investigations of alleged substandard care or
abuse involving the Decedent.
The Supreme court otherwise providently exercised its discretion in
denying stated portions of the Plaintiff's motion to compel
compliance with his discovery demands, ruled the Appellate Court.
While the Defendants failed to object to the Plaintiff's discovery
demands within the time period set forth in CPLR 3122(a)(1), that
failure does not foreclose review of the Defendants' challenge to
those demands as palpably improper. With the exception of the
aforementioned discovery demands, the demands at issue were
palpably improper, since they sought information that was
irrelevant, or were overbroad and burdensome.
The plaintiff's remaining contentions either are without merit or
need not be reached in light of the Court's determination, the
Appellate Court added.
For these reasons, the Appellate Court affirmed the order dated May
11, 2016.
With regards the order dated June 20, 2017, the Appellate Court
modified the order, on the law, by deleting the provisions thereof
denying those branches of the Plaintiff's motion pursuant to CPLR
3124 which were to compel the Defendants to comply with (1) his
discovery demand number 30, (2) his discovery demand number 32 to
the extent that it demands "all documents relating to meals
provided to" the Decedent, (3) his discovery demand number 33 to
the extent that it demands "all documents relating to bed changing
records for" the Decedent, (4) his discovery demand number 34 to
the extent that it demands "all documents relating to the movement
of" the Decedent, (5) his discovery demand number 35 to the extent
that it demands "all documents relating to the washing of" the
Decedent, (6) his discovery demand number 36 to the extent that it
demands "all documents relating to the change of position of" the
Decedent, and (7) his discovery demand number 51, and substituting
therefor provisions granting those branches of that motion. As so
modified, the order dated June 20, 2017, is affirmed insofar as
appealed from.
One bill of costs is awarded to the Defendants.
A full-text copy of the Appellate Court's Aug. 26, 2020 Decision &
Order is available at https://tinyurl.com/y2lskmya from
Leagle.com.
Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, White Plains,
NY (Jeremiah Frei-Pearson -- jfrei-pearson@fbfglaw.com -- of
counsel), for appellant.
Kaufman Borgeest & Ryan LLP, Valhalla, NY (Jacqueline Mandell --
jmandell@kbrlaw.com -- and Rebecca A. Barrett --
rbarrett@kbrlaw.com -- of counsel), for respondents.
YGRENE ENERGY: Court Denies Complete Stay of Woolley Case
---------------------------------------------------------
In the case, GEORGE W. WOOLLEY, TAMMY S. WOOLLEY, ANTHONY LOOK,
JR., KIMBERLY LOOK, ALEJANDRO MARCEY, and FELICIA MARCEY,
individually and on behalf of all others similarly situated,
Plaintiffs, v. YGRENE ENERGY FUND, INC., and YGRENE ENERGY FUND
FLORIDA, LLC, Defendants, Case No. 17-cv-01258-LB (N.D. Cal.),
Magistrate Judge Laurel Beeler of the U.S. District Court for the
Northern District of California, San Francisco Division, denied the
Plaintiffs' motion to stay the case under Rule 23(f).
The case is a putative class action about (1) Ygrene Energy's
alleged misrepresentations to homeowners that clean-energy loans
for home improvements (such as solar panels or better windows) were
assessments that attached to their properties (like property taxes)
and transferred on resale to new owners, when (2) in fact, the
homeowners had to prepay the loans if they wanted to sell their
homes or refinance their mortgages.
On May 28, 2020, the Court denied the Plaintiffs'
class-certification motion, generally because they did not show
that class members were exposed to the challenged marketing
materials. On June 11, 2020, the Plaintiffs filed a Federal Rule
of Civil Procedure 23(f) petition with the Ninth Circuit for
permission to appeal the order. They then moved to stay the case
under Rule 23(f). The Defendants oppose a complete stay because
they contemplate filing a motion for summary judgment for the
claims of the named Plaintiffs Tammy and George Woolleys, but they
otherwise do not oppose the motion to stay.
The Plaintiffs contend that the Court should stay the case pending
the Rule 23(f) petition because (1) their appeal raises a serious
legal question, (2) they would suffer irreparable harm absent a
stay, (3) a stay does not prejudice Ygrene, and (4) judicial
economy and the public interest favor a stay.
First, the Plaintiffs argue that the Court committed "manifest
error" when it reversed its previous order granting class
certification without any intervening changes in the law or the
facts. As the Court has explained, in its first order, it
considered the Plaintiffs' argument and did not consider evidence
-- in the form of exposure -- sufficiently. Moreover, the Court's
initial order was interlocutory, and it can reconsider it, rules
Magistrate Judge Beeler.
Second, the Plaintiffs face Ygrene's summary-judgment motion in any
event, and if they need more discovery, the Court will grant it.
If there are issues about the Woolleys, then the Court will address
the issues when they are live, Magistrate Judge Beeler added.
Third, Ygrene does not oppose staying other aspects of the case.
It otherwise has some harm from a full stay. This factor favors
the Court's approach.
Fourth, the Court's approach balances the interests of the parties
and -- if the post-motion case is stayed -- the interests of
efficiency.
Based on the foregoing, Magistrate Judge Beeler denied the motion
to stay in that it will allow the summary-judgment motion, related
discovery, and any discovery relevant to the class-certification
issues (as it has said previously). The Magistrate Judge otherwise
is willing to stay the case and can address the scope of the stay
at the next case-management conference or in the context of any
discovery disputes. A full-text copy of the Court's Aug. 19, 2020
Order is available at https://tinyurl.com/y4lv6maz from
Leagle.com.
Previously, the plaintiff moved for a protective order limiting
Ygrene's communications with the classes because Ygrene surveyed
class members before class certification. In an order entered on
March 2, 2020, a full-text copy of which is available at
https://tinyurl.com/r7rt53s from Leagle.com, Magistrate Judge
Beeler denied the motion because the plaintiffs have failed to
establish a "clear record" of abuse or of "likelihood of serious
abuse."
"The plaintiffs' sole justification for a protective order, the
Hanssens survey, does not establish "a clear record and specific
findings that reflect a weighing of the need for a limitation and
the potential interference with the rights of the parties," ruled
the Magistrate Judge. "The Hanssens survey was not conducted under
false pretenses and did not affect the customers' individual rights
to participate in the class."
YHA AUSTRALIA: Accused of $15M Underpayment to 'Volunteers'
-----------------------------------------------------------
smh.com.au reports that the nationwide YHA Australia chain of
hostels has been accused of systematically underpaying backpackers
by classifying them as volunteers but requiring them to do regular
work.
One man classified as a volunteer, Afshun Zareey, said he worked as
a desk attendant and activities co-ordinator doing tasks including
cleaning on late night shifts at three YHA properties in NSW and
Queensland.
While Mr Zareey's claim has settled on confidential terms, his
lawyer Rory Markham of Adero Law is preparing a class action
against the hostel company which he estimates could cover up to
4000 backpackers and recoup $15 million in lost wages.
Mr. Markham, the managing principal at Adero, said the YHA offered
beds to backpackers who worked for its hostels but not for long
enough to fairly compensate for the work done. [GN]
ZOAN MANAGEMENT: Arbitration Ruling in Gist Wage & Hour Suit Upheld
-------------------------------------------------------------------
In the case, Jeff GIST, individually and on behalf of all similarly
situated, Plaintiff-Appellant, v. ZOAN MANAGEMENT, INC.; Senvoy,
LLC; and Driver Resources, LLC, a domestic limited liability
company, Defendants-Respondents, Case Nos. 131115916; A159509 (Or.
App.), a three-judge panel of the Court of Appeals of Oregon
affirmed the trial court's order compelling arbitration.
The Plaintiff was a delivery driver for Defendant Driver Resources,
which operates with Defendants ZoAn and Senvoy to provide delivery
service to businesses. In December 2010, the Plaintiff signed a
Driver Services Agreement with Driver Resources to work as a
driver.
In November 2013, the Plaintiff filed a putative class-action
complaint against the Defendants, alleging wage and hour claims
under Oregon law. The complaint sought unpaid wages, unpaid
overtime wages, statutory penalty wages, compensation for unlawful
deductions from wages, and recovery of attorney fees.
In May 2014, the Defendants petitioned the trial court for an order
to stay proceedings and compel arbitration pursuant to the terms of
the Driver Services Agreement. Because the agreement did not
provide for arbitration of class action claims, the Defendants
sought arbitration of the Plaintiff's individual claims. The
Plaintiff opposed the petition, contending that the arbitration
provisions were unenforceable as part of an unconscionable
contract.
The trial court, however, abated further proceedings and ordered
the parties to arbitrate. After two unsuccessful attempts to
initiate an appeal from the order, the Plaintiff filed a motion to
dismiss his claims with prejudice, while reserving his challenge to
the order on appeal. The trial court granted the Plaintiff's
motion and entered a general judgment of dismissal.
Initially, the Plaintiff's appeal was rebuffed. The Defendants
moved to dismiss the appeal on the ground that the judgment was not
appealable because the Plaintiff had requested it. The court
dismissed. On review, the Oregon Supreme Court reversed the Court
Appeal's decision and remanded the case to the Court of Appeals.
It concluded that the judgment was appealable but expressed no view
whether all the issues raised by the Plaintiff on appeal are
reviewable. The court added that certain of the Defendants'
arguments may more appropriately be directed to what issues the
Court of Appeals may properly review on appeal rather than the
appealability of the judgment.
On appeal, the Plaintiff contends that the arbitration provisions
are unenforceable because the contract is procedurally and
substantively unconscionable. The Defendants disagree, adding that
the issue is not reviewable.
The Panel holds that the record reveals that the order compelling
arbitration resulted in the nature of the judgment of dismissal of
the Plaintiff's claims. Consequently, the order "affected" the
judgment and is reviewable on appeal from that judgment.
Next, the Plaintiff does not deny that arbitration fees may be
shifted to the losing parties, but insists that the risk of such
costs is nonetheless a barrier to arbitration. The Panel does not
know that the Plaintiff will bear any costs in arbitration, because
arbitration fees can be shifted to the losing party. The parties
disagree as to what the fees for arbitration might be, and the
Panel does not know the amount of those fees in proportion to the
amount of damages that the Plaintiff may recover. When the fee
provisions themselves are not onerous and when the Plaintiff's
factual information is incomplete, it cannot rely on speculation to
declare arbitration costs unconscionable. On that record, the
Panel cannot determine that the cost of arbitration is truly a
barrier to arbitration or an indication of unconscionability.
The Plaintiff next argues that the arbitration is substantively
unconscionable due to an arbitration provision on attorney fees,
complainting that the provision denies his recovery of attorney
fees from the Defendants in a claim on the agreement. The
Defendants rejoin that the provision is nonetheless mutual.
In the case, the attorney-fee provision is not one-sided, rules the
Appeals Court. It is even-handed; each party pays its own attorney
fees. There is no "unreasonably unfair" term that would treat the
Plaintiff differently from the Defendants. Nor is there even any
risk that, if the Plaintiff did not prevail, he would owe the
Defendants' attorney fees. The Panel is presented with nothing but
the written terms of the agreement, and, from them, it cannot
determine that the attorney-fee provision, in itself, is an
indication of unconscionability.
Finally, the Appeals Court recognizes that the Plaintiff's argument
is not with the attorney-fee provision itself. Rather, he argues
that the attorney-fee provision seems to deny him the potential to
recover attorney fees on his wage claims under Oregon statutes.
The issue is that an arbitration provision of the Driver Services
Agreement seems to provide a different rule. The Panel concludes
that the half-dozen conflicts that the Plaintiff raises, as between
the agreement and Oregon statute, are not matters that relate to
the Court's consideration of unconscionability. They are simply
legal disputes for resolution in due course by the arbitration
panel.
Ultimately, the Appeals Court concludes that the issues presented
are reviewable, that the arbitration provisions of the agreement
are not unconscionable, and that the trial court did not err in
compelling the parties to arbitrate. The Plaintiff's claims remain
for resolution in arbitration.
A full-text copy of the Appeals Court's Aug. 12, 2020 Order is
available at https://tinyurl.com/y43rhsxy from Leagle.com.
Lisa Hunt -- lthunt@lthuntlaw.com -- argued the cause for
appellant. On the opening brief were Phil Goldsmith and Law Office
of Phil Goldsmith; and David A. Schuck, Stephanie J. Brown, and
Schuck Law, LLC. Also on the reply brief were Law Office of Lisa T.
Hunt, LLC; and David A. Schuck and Shuck Law, LLC.
Erin N. Dawson -- edawson@pfglaw.com -- argued the cause for
respondents. Also on the brief were Charles J. Paternoster --
cpaternoster@pfglaw.com -- and Parsons Farnell and Grein, LLP.
ZWILLING J.A.: Bishop Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Zwilling J.A.
Henckels, LLC. The case is styled as Cedric Bishop, on behalf of
himself and all other persons similarly situated v. Zwilling J.A.
Henckels, LLC, Case No. 1:20-cv-08863 (S.D.N.Y., Oct. 22, 2020).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Zwilling J. A. Henckels AG is a German kitchenware manufacturer
based in Solingen, Germany. It is one of the largest and oldest
manufacturers of kitchen knives, scissors, cookware and flatware,
having been founded in June 1731 by Peter Henckels.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18 St., Suite PHR
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
*********
S U B S C R I P T I O N I N F O R M A T I O N
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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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