/raid1/www/Hosts/bankrupt/CAR_Public/210107.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, January 7, 2021, Vol. 23, No. 0
Headlines
ACCESS CAPITAL: Pyle Files Suit Under FDCPA
AIR METHODS: D. Colo. Certifies 3 Overtime Classes in Wagner Suit
AMERICAN HOMEPATIENT: Presswood TCPA Suit Seeks to Certify Class
BETHANY HOME SOCIETY: Hoge Files Suit in California
CARMAR TRANSPO: Pfeffer Seeks Entry of Judgment on Settlement
CELLCO PARTNERSHIP: Simoni Suit Transferred to New Jersey
CENTRAL PAYMENT: Class Certification in Custom Hair Suit Upheld
CHARLES TYRWHITT: Settlement Class Wins Initial OK in Murphy Suit
CHARTER COMMUNICATIONS: Class Cert. Bid Deadline Moved to May 14
CLEVELANDER OCEAN: Dalton Seeks to Certify Restaurant Staff Class
COURIERNET INC: Gobena Seeks to Certify Class of Couriers
DESTIN FIRE: Jensen FLSA Suit Seeks Collective Class Certification
DJO GLOBAL: Cal. Court Narrows Claims in Dreifort Liability Suit
ENHANCED RECOVERY: Volkman Suit Seeks Final OK of Class Settlement
EQT PRODUCTION: Suit Seeks to Certify Domenic Laudato as Class Rep.
FDM GROUP: Park Suit Seeks Final Approval of Class Settlement
GENERALI US BRANCH: Oglevee Suit Transferred to N.Y. Southern Dist.
GENERALI US BRANCH: Young Files PI Suit in New York
JAKKS PACIFIC: Bunting Alleges Violation under ADA
KATE MCLEOD INC: Kiler Asserts Breach of ADA in New York
KOWALSKI HEAT: Davis Seeks Certification of FLSA Collective Action
LAFAYETTE, LA: Summary Dismissal of Claims in Balbesi Suit Affirmed
LUMOS PHARMA: Settlement Reached in Abramson Securities Class Suit
MANNA 2ND AVENUE: Herrera Files FDCPA Suit in New York
MEDINAH COUNTRY CLUB: Santilli Sues Over Biometrics Data Collection
MIJ INC: Class Certification Bid Denied as Moot in Ford Suit
MINDFINDERS INC: Suit Seeks to Stay Class Certification Deadline
MOGA TRANSPORT: Vae Files Suit in California
MONSANTO COMPANY: Long Beach City Seeks to Certify Settlement Class
NEKTAR THERAPEUTICS: Mulquin Consolidated Securities Suit Dismissed
NEUBASE THERAPEUTICS: Appeal in Lehman Suit v. Ohr Pharma Pending
NEUBASE THERAPEUTICS: Wheby Class Action vs Ohr Pharma Ongoing
NEW YORK: Dismissal of Claim for Damages in Singh Suit Affirmed
NISSAN MOTOR: Ghosn & Kelly Lose Bids to Dismiss Jackson Class Suit
NORDSON CORP: Settlement Reached in Ortiz Suit
NORTHEASTERN UNIVERSITY: Court Narrows Claims in Bahrani Class Suit
OFFSPRING BEAUTY CO: Bunting Asserts Breach of ADA
OLAM SPICES: Court Wants More Settlement Briefing in Beltran Suit
PERFECT FORMULA: Bunting Alleges Violation under ADA
PROGRESSIVE DIRECT: Suit to Add Mackay, Steidl as Class Reps.
QUANTUMSCAPE CORP: Jakubiak Sues Over Denied Exercise of Warrants
SAFE AND FAIR FOOD: Martinez Asserts Breach of ADA
SIFCO INDUSTRIES: Discloses Dispatch of Class Action Notices
SOL MELIA: Puerto Rico Court Refuses to Remand Aviles Class Suit
TAUBMAN CENTERS: Facing Simon Property Merger Related Suits
TELIGENT INC: Econazole Antitrust Litigation Underway
TELIGENT INC: Generic Drug Price-Fixing Suit Underway in Canada
UNITED STATES: Batista Files Suit v. DFPS Commissioner
VARSITY BRANDS: Parents of Cheer Athletes Slam Competition Monopoly
WAVE PLASTIC SURGERY: Kim Suit Transferred to C.D. Ca.
WPX ENERGY: Facing Devon Energy Merger Related Suits
*********
ACCESS CAPITAL: Pyle Files Suit Under FDCPA
-------------------------------------------
A class action lawsuit has been filed against Access Capital
Services, Inc. The case is styled as Timothy Pyle, on behalf of
himself and all others similarly situated, Plaintiff v. Access
Capital Services, Inc, Defendants, Case No. 3:20-cv-00253-SLH (W.D.
Pa., Dec. 29, 2020).
The docket of the case states the nature of suit as Consumer Credit
filed pursuant to the Fair Debt Collection Practices Act.
Access Capital Services, Inc. (ACS) is a full-service collection
agency.[BN]
The Plaintiff is represented by:
Robert P Cocco, Esq.
Robert P. Cocco, P.C.
1500 Walnut St., Ste 900
Philadelphia, PA 19102-3518
Tel: (215) 351-0200
Fax: (215) 261-6055
Email: bob.cocco@outlook.com
AIR METHODS: D. Colo. Certifies 3 Overtime Classes in Wagner Suit
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In the case, TOM WAGNER, SUSAN BRZEZINSKI, MATTHEW DeBROSSE, JOHN
GLAZIER, JAMES HOWE, KEVIN MOFFITT, LAURA WALKER, DANIELLA NOWISKI,
GENE STALSBERG, KRISTEN GRADO, GEORGE RAMEY, NIKOLAS REPETA, and
STEPHANIE PAULEY, on behalf of themselves and all others similarly
situated, Plaintiffs v. AIR METHODS CORPORATION, a Colorado
corporation, Defendant, Case No. 19-cv-00484-RBJ (D. Colo.), Judge
R. Brooke Jackson of the U.S. District Court for the District of
Colorado granted the Plaintiffs' motion for class certification,
and granted in part and denied in part the Defendant's motion to
dismiss parts of the Second Amended Complaint.
AMC provides air ambulance services throughout the United States.
Flight paramedics and flight nurses are scheduled to work 24-hour
shifts. AMC's policy and practice is to designate eight hours of
each 24-hour shift as sleep time, although the employees must
remain on base and ready to board a helicopter or plane on five
minutes notice if necessary. AMC pays the employees for the sleep
time hours. However, if the employee has at least five
uninterrupted hours of sleep during the eight hours, then that
uninterrupted sleep time is not considered time worked for purposes
of calculating the employee's entitlement to overtime
compensation.
The Plaintiffs are flight paramedics and flight nurses who either
are or were employed by AMC in Michigan, New Mexico, and Illinois.
They challenge the foregoing overtime policy under the laws of
their respective states: Michigan Compiled Laws Annotated Section
408.414a (nine Plaintiffs); the New Mexico Minimum Wage Act (three
Plaintiffs); and 820 Illinois Compiled Statutes 105/4a (one
Plaintiff). Alternatively, they assert an equitable claim sounding
in unjust enrichment.
The Plaintiffs ask the Court to certify either one combined
"overtime class" or three separate overtime classes, one for each
represented state. They also ask the Court to certify either one
or three "unjust enrichment" classes. AMC opposes class
certification.
In a separate motion, AMC asks the Court to dismiss the claims of
two of the Michigan Plaintiffs as barred by the statute of
limitations, and to dismiss the unjust enrichment claims of all of
the Plaintiffs. An oral argument was held on Oct. 15, 2020.
Judge Jackson examines the Motion for Class Certification. He
finds that the prerequisites of Rule 23(a) and Rule 23(b)(3) have
been met. Having found that the four prerequisites of Rule 23(a)
and the requirements of Rule 23(b)(3) have been met, the Judge
granted the motion for class certification. He certified three
overtime classes as follows: All persons employed by AMC as flight
paramedics or flight nurses in Michigan, New Mexico, and Illinois
from Feb. 19, 2016 to the present. He appointed Arnold and Miller
(Charles W. Arnold and J. Robert Cowan) and Moody & Stanford
(Christopher Moody) as the class counsel.
AMC is directed promptly to provide a class list with contact
information for the approximately 634 total members of the three
classes to the maximum extent that information is available to it
through payroll records or other means (last known address, email
address, telephone numbers, and any other information it might have
concerning the present whereabouts and communication avenues for
these former and current employees). Absent a compelling showing
that more time is reasonably needed, the contact information must
be provided to the Plaintiff's counsel no later than Jan. 15, 2021.
The Plaintiffs will then notify the class members using the form
of notice provided at ECF No. 51-16, to which AMC has registered no
objection.
The Judge also examines the Defendant's Motion to Dismiss
Plaintiffs' Second Amended Complaint. Despite its sweeping title,
the motion seeks (1) to dismiss Plaintiffs Brzezinski and Howe's
class claims as barred by the applicable Michigan statute of
limitations, and (2) to dismiss the Plaintiffs' unjust enrichment
claim.
The Judge granted the motion as to the unjust enrichment claim but
denied as to Ms. Brzezinski and Mr. Howe. He finds that based on
the facts alleged in the Second Amended Complaint and the plain
language of the statute, Ms. Brzezinski and Mr. Howe's claims in
the case are timely. As both parties recognize, the Court is bound
to follow Michigan law on the statute of limitations. Although the
Michigan statute might have been modeled after American Pipe &
Constr. Co. v. Utah, 414 U.S. 538, 553-55 (1974), and although
China Agritech, Inc. v. Resh, 138 S.Ct. 1800 (2018), has clarified
the reach of American Pipe, the Court must follow the plain
language of the statute as it is.
The Judge also finds that the Plaintiffs are seeking the same
remedy based on the same conduct under both their statutory and
their unjust enrichment theories. Thus, the unjust enrichment
claim is superfluous. The Plaintiffs merely assert their right to
bring alternative theories of recovery. It is not a sufficient
basis for bringing an independent action for equitable relief, the
Judge holds.
A full-text copy of the Court's Dec. 29, 2020 Order is available at
https://tinyurl.com/yaclhr94 from Leagle.com.
AMERICAN HOMEPATIENT: Presswood TCPA Suit Seeks to Certify Class
----------------------------------------------------------------
In the class action lawsuit captioned as ALAN PRESSWOOD, D.C.,
P.C., individually and as the representative of a class of
similarly-situated persons, v. AMERICAN HOMEPATIENT, INC., and JOHN
DOES 1-10, Case No. 4:17-cv-01977-SNLJ (E.D. Mo.), the Plaintiff
asks the Court to enter an order:
1. certifying the following class pursuant to Rule 23 of the
Federal Rules of Civil Procedure:
"all persons or entities who were sent the Fax, on or
about June 22, 2013, providing "American HomePatient, Your
Medicare Patients have 1 week to find a new provider;"
2. appointing the Plaintiff as class representative; and
3. appointing The Margulis Group and Anderson + Wanca as
class counsel.
This case arises out of a fax-advertising campaign wherein a
facsimile advertisement was sent to the Plaintiff and the proposed
class on or about June 22, 2013.
The Plaintiff received the Fax on June 22, 2013 and brought this
lawsuit that the Fax violated the Telephone Consumer Protection Act
of 1991 ("TCPA").
The Fax advertised the availability and quality of Defendant
American HomePatient, Inc.'s respiratory products and services,
specifically, oxygen therapy, continuous positive airway pressure
(CPAP) therapy, and sleep studies.
American Homepatient provides a variety of home health-care
products and services. The Company offers home respiratory
services, infusion therapy, and home medical equipment. American
Homepatient operates centers in the United States.
A copy of the Plaintiff's motion to certify class dated Jan. 4,
2020 is available from PacerMonitor.com at https://bit.ly/2KV0p8D
at no extra charge.[CC]
The Plaintiff is represented by:
Ryan M. Kelly, Esq.
Brian J. Wanca, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Facsimile: (847) 368-1501
E-mail: rkelly@andersonwanca.com
bwanca@andersonwanca.com
- and -
Max G. Margulis, Esq.
MARGULIS LAW GROUP
28 Old Belle Monte Road
Chesterfield, MO 63017
Telephone: (636) 536-7022
E-mail: MaxMargulis@MargulisLaw.com
BETHANY HOME SOCIETY: Hoge Files Suit in California
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A class action lawsuit has been filed against Bethany Home Society
of San Joaquin County, Inc. The case is styled as Tracy Hoge,
individually and on behalf of all others similarly situated,
Plaintiff v. Bethany Home Society of San Joaquin County, Inc.,
Defendant, Case No. STK-CV-UOE-2020-0010956 (Cal. Super. Ct., Dec.
29, 2020).
The docket of the case states as Unlimited Civil Other Employment.
Bethany Home Society of San Joaquin County, Inc. is a retirement
community in Ripon, California.[BN]
The Plaintiff is represented by:
Jessica L. Campbell, Esq.
Aegis Law Firm
9811 Irvine Center Dr, Suite 100
Irvine, CA 92618
Tel: 949-379-6250
CARMAR TRANSPO: Pfeffer Seeks Entry of Judgment on Settlement
-------------------------------------------------------------
In labor case docketed Mark Pfeffer, Vladimir Tsitlidze, Sergio
Dominguez, Timothy Ostrom, George Valdez and Laura Marzano, on
behalf of themselves and all others similarly-situated, Plaintiff,
v. Carmar Transportation, Inc. and Margaret Scholl, individually,
Defendants, Case No. 18-cv-10150 (S.D. Fla.) seeking unpaid minimum
wages and overtime premium pay, said parties entered into a
settlement agreement on September 25, 2020.
Pursuant to the agreement, Defendants had agreed to make one
monthly payment of $3,250 and eleven consecutive monthly payments
in the amount of $2,500 until December 20, 2020, for a total amount
of $30,750 for settlement of this matter. After making the first
two payments for January and February of 2020, Defendants failed to
continue making further payments.
Plaintiffs seek entry of judgment in the County Court of the 16th
Judicial Circuit in and for Monroe County, Florida including
attorneys' fees and costs for enforcement/default purposes. Case is
e-filed under 118109283 dated December 12, 2020. [BN]
Plaintiff is represented by:
Chad E. Levy, Esq.
David M. Cozad, Esq.
LAW OFFICES OF LEVY & LEVY, P.A.
1000 Sawgrass Corporate Parkway, Suite 588
Sunrise, FL 33323
Telephone: (954) 763-5722
Facsimile: (954) 763-5723
Email: chad@levylevylaw.com
assistant@levylevylaw.com
david@levylevylaw.com
CELLCO PARTNERSHIP: Simoni Suit Transferred to New Jersey
---------------------------------------------------------
The case captioned as Stephen J. Simoni, individually and on behalf
of all others similarly situated, Plaintiff v. Cellco Partnership
d/b/a Verizon Wireless and Does 1 through 10, inclusive,
Defendants, was transferred from the Somerset County Court with the
assigned Case No. SOM-L-001437-20 to the U.S. District Court for
the District of New Jersey on Dec. 29, 2020, and assigned Case No.
3:20-cv-20513.
The docket of the case states the nature of suit as Other Fraud.
Verizon Wireless is an American telecommunications company which
offers wireless products and services. It is a division of Verizon
Communications. Verizon Wireless is the second-largest wireless
carrier in the United States, with 120.3 million subscribers as of
the end of Q3 2020.[BN]
The Plaintiff appears PRO SE.
The Defendants are represented by:
Philip R. Sellinger, Esq.
Greenberg Traurig, LLP
500 Campus Drive, Suite 400
PO BOX 677
Florham Park, NJ 07932-0677
Tel: (973) 360-7900
Email: sellingerp@gtlaw.com
CENTRAL PAYMENT: Class Certification in Custom Hair Suit Upheld
---------------------------------------------------------------
The U.S. Court of Appeals for the Eighth Circuit affirmed the
district court's order certifying the class in the case, Custom
Hair Designs by Sandy et al., Respondents v. Central Payment Co.,
LLC, Petitioner, Case No. 20-1677 (8th Cir.).
Custom Hair brought a class action alleging breach of contract,
state-law fraudulent concealment, and violation of the Racketeer
Influenced and Corrupt Organizations Act ("RICO").
The class members are over 160,000 small retailers using Central
Payment Co., LLC ("CPAY") for credit card processing. CPAY does
not employ its (loosely affiliated) agents. They use form
contracts with blanks for the pricing terms, which are subject to
negotiation. Individual retailers can select from two basic
pricing schemes--"pass-through" or "tiered" (by class of
transaction). Both focus on the price-per-transaction that credit
card issuers impose. Changes to the price-per-transaction must be
approved by the issuing banks under the terms of CPAY's form
contract.
The Plaintiffs allege CPAY misrepresented a number of fees, added
fees with no value to retailers, and inflated fees without prior
approval from issuing banks. They stress that the FTC previously
barred, for fraud, CPAY's founders from selling auction guides.
CPAY moved for summary judgment. In a single order, the district
court denied summary judgment and certified the class.
CPAY appeals. It argues the district court failed to adequately
explain its certification decision. The Eighth Circuit holds that
the district court made specific findings of fact. Contrary to
CPAY's assertion, the district court's decision is specific enough.
CPAY also ignores that the district court issued an order that
included its denial of summary judgment. Because the court
addressed the merits in its summary-judgment analysis, and thus
mentioned them only briefly in the class certification section, the
court need not repeat its view of the record in each section of an
order. The district court engaged in a sufficiently rigorous
analysis.
CPAY also argues that the district court erred in determining that
common questions predominate. The Appellate Court holds that
Common questions and common answers predominate in the case.
First, all claims deal with either a common scheme of fraud or a
term common to all contracts with CPAY. Second, any pricing
differences would not affect liability, only damages. Third, that
some contracts authorize a "PCI Noncompliance Fee" or a "TSSNF Fee"
does not defeat predominance. Fourth, that changes in bank rates
cause tier shifts does not defeat predominance.
The Court also finds that the requirements for common law fraud are
not read into RICO. Thus, the Plaintiffs are correct that
overpayments from a pattern of systemic mail fraud in CPAY's
billing would satisfy RICO's causation requirements and be common
among all plaintiffs. Also, the statute of limitations and
Nebraska reliance law do not defeat predominance.
CPAY then argues that the named Plaintiffs' claims are not typical
of the class members. The named Plaintiffs' claims are typical of
the class. CPAY ignores the similarities of the core claims both
named Plaintiffs make--the general scheme of deceptive billing,
violation of the bank pre-authorization contract requirement, and
fraudulent concealment. Since the Plaintiffs' claims resemble the
theories applicable to all class members, minor factual variations
such as differences in rates do not defeat typicality.
CPAY also argues that the named Plaintiffs do not represent class
interests adequately. Identifying and not including the class
members does not create an intraclass conflict, because the claims
of non-class-members are not litigated. The claims CPAY discusses
would thus not be precluded. Hence, the district court did not err
in determining the named Plaintiffs adequately represented class
interests.
Finally, CPAY contends that the class does not satisfy superiority.
A class action is the superior mechanism to try the case. The
Plaintiffs' individual claims are for tens or hundreds of dollars.
Absent a class action, no Plaintiff is likely to pursue their claim
individually. Therefore, the Eighth Circuit holds that the
district court did not abuse its discretion in finding a class
action superior.
Based on the foregoing, the Eighth Circuit affirmed.
A full-text copy of the Court's Dec. 30, 2020 Order is available at
https://tinyurl.com/y4wvwnaw from Leagle.com.
CHARLES TYRWHITT: Settlement Class Wins Initial OK in Murphy Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as ANTHONY HAMOND MURPHY, and
BLAIR DOUGLASS, v. CHARLES TYRWHITT, INC., Case No.
1:20-cv-00056-SPB-RAL (W.D. Pa.), the Hon. Judge Susan Paradise
Baxter entered an order:
1. preliminarily certifying the proposed Settlement Class
pursuant to Fed. R. Civ. P. 23(a) and (b)(2) for purposes
of settlement, defined as:
"all blind or visually disabled individuals who use screen
reader auxiliary aids to navigate digital content and who
have accessed, attempted to access, or been deterred from
attempting to access, or who will access, attempt to
access, or be deterred from accessing the Website from the
United States;"
2. appointing and designating the Plaintiffs Anthony Hammond
Murphy and Blair Douglass as representatives of the
Settlement Class;
3. appointing and designating Kevin W. Tucker, Esq., Kevin J.
Abramowicz, Esq., Lawrence H. Fisher, Esq., and the law
firm of East End Trial Group LLC as Class Counsel for the
Settlement Class;
4. finding that the Notice and Notice Plan to the Motion meet
the requirements for due process, the requirements of
Rules 23(c)(2) and 23(e) of the Federal Rules of Civil
Procedure, and ensure Notice is well calculated to reach
representative class members, and approving Notice and
Notice Plan;
5. directing the Defendant, within 21 days of this Order
(Notice Deadline), to:
a. cause the Notice to be published on a search-engine-
optimized (SEO) settlement website operated by a
stipulated class action settlement administrator or
similar entity;
b. add invisible anchor text in the header of the
Website's homepage which reads, "Click to view our ADA
Class Action Settlement Notice" and which links to the
Notice published by the stipulated class action
settlement administrator or similar entity;
c. post a link to the Notice on its social media accounts,
including https://www.facebook.com/CharlesTyrwhitt,
https://www.instagram.com/charlestyrwhitt/, and
https://twitter.com/ctshirts, which post shall also tag
and direct questions about the Notice to Class Counsel
at its accounts on each respective platform; and
d. request that National Federation of the Blind and
American Council of the Blind publish a link to the
Notice in their respective electronic newsletters so
that notice is sent out within 60 days of the
Preliminary Approval;
6. directing the Defendant or Defendant's counsel, within 10
days prior to the Fairness Hearing, to file a declaration
evidencing compliance with the notice provisions of this
Order;
7. directing the Class Counsel, within 10 days prior to the
Fairness Hearing, to file its motion for attorneys' fees
and costs; and
8. authorizing the Counsel for the parties to utilize all
reasonable procedures in connection with the
administration of the Settlement Agreement which are not
materially inconsistent with either this Order or the
terms of the Settlement Agreement.
Charles Tyrwhitt manufactures men's and women's apparel.
A copy of the Court's order dated Jan. 4, 2020 is available from
PacerMonitor.com at https://bit.ly/35dUPF9 at no extra charge.[CC]
CHARTER COMMUNICATIONS: Class Cert. Bid Deadline Moved to May 14
----------------------------------------------------------------
In the class action lawsuit captioned as Shahid Rahmatullah,
Individually and on behalf of all others similarly situated, v.
Charter Communications, LLC, a Delaware limited liability company;
and Does 1 through 25, Case No. 5:20-cv-00354-PSG-SP (C.D. Cal.),
the Hon. Judge Philip S. Gutierrez entered an order that the
scheduling and case Management order is modified as follows:
Deadlines Date
Motion for Class Certification May 14, 2021
Non-Expert Discovery Cut-Off June 22, 2021
Opening Expert Witness Disclosure June 29, 2021
Last Day to File Motion July 9, 2021
Expert Disclosure (Rebuttal) July 16, 2021
Expert Discovery Cut-Off August 16, 2021
Final Pretrial Conference September 27, 2021
Jury Trial October 11, 2021
Charter Communications is an American telecommunications and mass
media company with services branded as Charter Spectrum.
A copy of the Court's order dated Jan. 4, 2020 is available from
PacerMonitor.com at https://bit.ly/394HuA7 at no extra charge.[CC]
CLEVELANDER OCEAN: Dalton Seeks to Certify Restaurant Staff Class
-----------------------------------------------------------------
In the class action lawsuit captioned as SHANNON DALTON, for
herself and on behalf of those similarly situated, v. CLEVELANDER
OCEAN, LP, a Foreign Limited Partnership, itself, and as
successor-in-interest to 2K Clevelander, LLC, a Foreign Limited
Liability Company, Case No. 1:20-cv-23804-DPG (S.D. Fla.), the
Plaintiff asks the Court to enter an order conditionally certifying
the action as a collective action, and permitting, under
supervision, notice to:
"all "Bartenders and/or Servers" who worked for the Defendant
at the Clevelander South Beach Hotel and Bar, located at 1020
Ocean Dr., Miami Beach, FL 33139, at any time during the
three years before this Complaint was filed and up to the
present."
The Plaintiff has alleged in her Complaint, that the putattive
collective were subject to The Clevelander's common policies and
practices pursuant to which the Plaintiff and other
bartenders/servers: (a) were deprived of their tips because same
were improperly classified as a "service charge;" (b) were not paid
an hourly or direct wage for all of their hours worked, instead
receiving only their tips paid back to them, misclassified as a
"commission;" (c) were required to participate in mandatory pooling
of tips, with significant portions of tip monies (whether or not
pooled) diverted to the business itself; and (d) were not paid
proper overtime premiums for their overtime hours, in violation of
the Fair Labor Standards Act.
As stated in the Plaintiff's Complaint, the Plaintiff was a
bartender/server employed at the Defendant's restaurant.
A copy of the Plaintiff's motion to certify class dated Dec. 31,
2020 is available from PacerMonitor.com at http://bit.ly/3aZSp0Hat
no extra charge.[CC]
The Plaintiff is represented by:
Angeli Murthy, Esq.
Paul M. Botros, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Rd., Suite 4000
Plantation, FL 33324
Telephone: (954) 318-0268
Facsimile: (954) 327-3016
E-mail: Amurthy@forthepeople.com
Pbotros@forthepeople.com
COURIERNET INC: Gobena Seeks to Certify Class of Couriers
---------------------------------------------------------
In the class action lawsuit captioned as WAGAYE GOBENA, on behalf
of herself and all others similarly situated, v. COURIERNET, INC.,
Case No. 3:20-cv-00290-RJC-DSC (W.D.N.C.), the Plaintiff asks the
Court to enter an order:
1. conditionally certifying this case as collective action
pursuant to section 216(B) of the Fair Labor Standards Act
(FLSA), on behalf of:
"all individuals who signed an agreement to provide
courier services to the Defendant, and performed courier
services, pursuant to that agreement, as independent
contractors for Defendant, and who have not been paid
minimum wage and overtime compensation, during the three
years preceding the filing of this action;"
2. approving the proposed FLSA notice of this action and the
consent form;
3. directing the Defendant to produce the names, last known
mailing addresses, last-known cell phone numbers, email
addresses, work locations, and dates of employment of all
putative plaintiffs within 15 days of the Order; and
4. directing the Plaintiff to distribute the Notice and Opt-
in Form via first class mail, email, and text message to
all putative plaintiffs of the conditionally certified
collective, with a reminder mailing to be sent 45-days
after the initial mailing to all non-responding putative
plaintiffs.
Plaintiff Gobena has brought this suit on behalf of herself and
other similarly situated couriers who have worked for CourierNet,
seeking to recover unpaid overtime and minimum wages. The couriers
who make up the proposed collective performed similar duties, were
similarly misclassified as independent contractors, and, as a
result, subject to the same unlawful policies and practices
implemented by the Defendant in violation of the FLSA.
The Plaintiff contends that the Defendant is in the business of
providing courier services, and she and other couriers perform
these exact services in the usual course of this business; without
the couriers, the Defendant would have no business.
The Defendant specializ[es] in on-demand deliveries,
pharmaceutical/medical specimen transportation, and customizing
distribution networks for customers across many industries. The
Defendant also specializes in facilities management, warehousing,
next-day deliveries, and distribution through a dynamic fleet of
cars, cargo vans, box-trucks and tractor-trailers.
A copy of the Plaintiff's motion to certify class dated Jan. 3,
2020 is available from PacerMonitor.com at https://bit.ly/3b80G2H
at no extra charge.[CC]
The Plaintiff is represented by:
Gilda A. Hernandez, Esq.
Charlotte Smith, Esq.
Robert W.T. Tucci, Esq.
THE LAW OFFICES OF GILDA A.
HERNANDEZ, PLLC
1020 Southhill Dr., Ste. 130
Cary, NC 27513
Telephone: (919) 741-8693
Facsimile: (919) 869-1853
E-mail: ghernandez@gildahernandezlaw.com
csmith@gildahernandezlaw.com
rtucci@gildahernandezlaw.com
Local Civil Rule 83.1(c)(2) Local Counsel for the Defendant, are:
M. Lee Daniels, Jr., Esq.
M. LEE DANIELS, JR., P.C.
OF COUNSEL TO WIMBERLY, LAWSON
SCHNEIDER STECKEL & STINE, P.C.
1200 Woodruff Road, Suite A-3
Greenville, SC 29607
Telephone: (864) 242-9484
Facsimile: (864) 288-7937
E-mail: mld@wimlaw.com
Counsel for the Defendant, are:
James W. Wimberly, Esq.
James Larry Stine, Esq.
WIMBERLY, LAWSON, STECKEL
SCHNEIDER & STINE, P.C.
3400 Peachtree Rd., NE
Suite 400, Lenox Towers
Atlanta, GA 30326
Telephone: (404) 365-0900
Facsimile: (404) 261-3707
E-mail: jww@wimlaw.com
jls@wimlaw.com
DESTIN FIRE: Jensen FLSA Suit Seeks Collective Class Certification
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In the class action lawsuit captioned as RYAN JENSEN, individually
and on behalf of all others similarly situated, v. DESTIN FIRE
CONTROL DISTRICT, Case No. 3:20-cv-05661-RV-HTC (N.D. Fla.), the
Plaintiff asks the Court to enter an order:
1. conditionally certifying a collective class consisting of:
"all Employees covered by the collective bargaining
agreements (CBA) employed at any time within the three
year period immediately preceding the filing of the
complaint.
2. approving notice to Collective Class Members -- past and
present firefighters, engineers, and inspectors, and
Similarly Situated employees covered by the CBA between
the Destin Fire Control District and the Destin
Professional Firefighters' Association, Local No. 3158;
and
3. requiring the Defendant to disclose the names, mailing
addresses, cell-phone numbers and email addresses of these
employees so that the Court-approved notice may be
forwarded to them;
4. requiring that the Defendant post a copy of the Notice in
each of the Defendant's firehouses in a conspicuous place
where notices such as wage and hour, workers'
compensation, Occupational Safety and Health Act (OSHA)
and other similar notices are posted; and
5. allowing the similarly situated employees covered by the
CBA and Similarly Situated firefighters 90 days from the
date the notice is mailed to submit their opt-in forms to
join this case.
The Plaintiff filed his lawsuit on behalf of himself and all other
similarly situated present and former employees of the Defendant
alleging that the Defendant violated the Fair Labor Standards Act
of 1938, as amended, 29 U.S.C. section 201 et seq. (FLSA) by
requiring the Plaintiff and similarly situated employees to attend
training/classes on days they were not otherwise scheduled to work
and/or received Incentive Pay for possessing special firefighting
credentials and who work in excess of 40 hours per week, yet failed
to pay wages at a rate of at least one and one half times their
regular rate, contrary to the requirements of the FLSA.
The Plaintiff and potential collective class members are paid on an
hourly basis and receive overtime pay when they work in excess of
106 hours in a bi-weekly pay period. Firefighters are also paid a
fixed amount of Incentive Pay (like a bonus) on a monthly basis for
possession of certain training certifications such as "Open Water
Rescuer."
The Defendant is a municipal corporation which is an independent
special fire control district providing emergency medical, rescue
response, and firefighting services in the Destin, Florida area.
The Defendant hires individuals to provide these services which
require specialized training and skills.
A copy of the Plaintiff's motion to certify class dated Jan. 1,
2020 is available from PacerMonitor.com at https://bit.ly/3ofjP6n
at no extra charge.[CC]
The Plaintiff is represented by:
Sean Culliton, Esq.
SEAN CULLITON, ESQ., LLC
285 Pinewood Drive
Tallahassee, FL 32303
Telephone: (850) 385-9455
E-mail: Sean@seancullitonlaw.com
DJO GLOBAL: Cal. Court Narrows Claims in Dreifort Liability Suit
----------------------------------------------------------------
In the case, DANIEL DREIFORT, individually, and on behalf of all
others similarly situated, Plaintiffs v. DJO GLOBAL INC., DJO, LLC,
and DOES 1-20, Defendants, Case No. 3:18-cv-02393-BTM-KSC (S.D.
Cal.), Judge Barry Ted Moskowitz of the U.S. District Court for the
Southern District of California granted in part and denied in part
the Defendants' Motion to Dismiss Plaintiff's First Amended
Complaint.
Defendants DJO Global, Inc. and DJO, LLC manufacture orthopedic
rehabilitation boots with soles that are thicker than 2.6 cm. DJO
sells its boots directly to consumers and indirectly through
prescribing medical intermediaries.
On Dec. 1, 2017, Plaintiff Dreifort injured his right ankle. On
March 7, 2018, the Plaintiff went to UCSD La Jolla USS Sports
Medicine for treatment of his ankle injury, where he was prescribed
an Aircast AirSelect Standard orthopedic rehabilitation boot
manufactured by DJO. The sole of the boot was approximately 5 cm
thick. The Plaintiff wore the boot from March 7 to March 13,
2018.
On March 13, 2018, the Plaintiff suffered from a back injury caused
by the "thick sole" of the boot, which caused leg length
discrepancy which constantly put additional strain on his back. He
had previously suffered "disk herniation" problems in 2007 and
2013. The Plaintiff alleges that his secondary injury is typical
among the users of DJO manufactured thick sole boots. He states
that DJO did not disclose to him the risk of secondary injury or
that the boot causes leg length discrepancy, and that DJO also did
not warn healthcare providers of such risks. After the Plaintiff's
health insurance covered partial payment for the boot, DJO billed
the Plaintiff directly for $44.52, which he paid.
On March 27, 2018, the Plaintiff notified UCSD of his March 13,
2018 back injury from the boot and that same day, a different UCSD
healthcare provider responded to his concerns by recommending him
purchase a product called Evenup available on Amazon.com for about
$20 to $30. Evenup is a product that DJO sells separately and is
intended to equalize a patient's healthy limb length and reduce
body strain while walking in a cast or walker.
On May 13, 2018, the Plaintiff purchased the Evenup from
www.amazon.com and paid $16.99 plus $1.32 in taxes. He never used
the Evenup but believes it would have prevented his back injury, or
at least lessened or delayed it. He states that DJO never
disclosed to him the existence of the Evenup and that he only
learned of the Evenup from UCSD after it was too late.
The Plaintiff brings the following class action causes of action
against DJO: (1) fraudulent concealment, (2) violations of
California's False Advertising Law, (3) violations of California's
Unfair Competition Law, (4) violations of the Consumer Legal
Remedies Act, and (5) product liability.
DJO moves to dismiss the Plaintiff's FAC in its entirety under Fed.
R. Civ. P. 12(b)(6) and 12(b)(1), or alternatively, moves to strike
the Plaintiff's class allegations under Fed. R. Civ. P. 12(f).
Judge Moskowitz initially addresses DJO's argument that the
Plaintiff's class action claims should be dismissed for lack of
standing to the extent that the claims encompass models of boots
other than the one Plaintiff purchased, because he would not have
standing as to products he never purchased and used. In addition
to the Aircast Airselect Standard, the Plaintiff identifies more
than 30 other DJO boot models that he states are subject to his
class claims. He states that all of the identified boot models
share materially common deficiencies with the specific model that
injured the Plaintiff, in part because they have a sole thicker
than 2.6 cm.
At the pleading stage, the Judge declines to dismiss the
Plaintiff's class allegations as to the additional identified boot
models, which the Plaintiff alleges are materially similar to the
Aircast Airselect Standard that he claims injured him. The Judge
finds it would be more appropriate to address the argument after
discovery, and at the class certification stage.
Next, the Judge examines the DJO's Motion to Dismiss pursuant to
Rule 12(b)(6) for failure to state a claim. He finds that (i) the
Plaintiff's fraudulent concealment, UCL, cause of action, and FAL
and CLRA, causes of action are adequately pled. However, the Judge
finds the Plaintiff's FAC now references and attaches one
additional 2018 study about joint pain associated with controlled
ankle movement walker boot wear, but still fails to allege that any
of the referenced studies (1) are generally recognized, (2) reflect
the best scientific medical knowledge available at the time of
manufacture and distribution, and (3) predate DJO's manufacture and
distribution of the boots at issue. Accordingly, the Plaintiff's
failure to warn products liability cause of action is dismissed
with leave to amend.
Finally, the Judge addresses DJO's Motion to Dismiss pursuant to
Rule 12(f). DJO's Motion to Dismiss does not argue that there are
any specific deficiencies with how any particular causes of action
are pled. Rather, the predominant focus of its argument is that
the Plaintiff's entire action should be dismissed because it is
premised on personal injury, which, along with the Plaintiff's
theory of damages, would require individual inquiries that would
make class resolution inappropriate. Because the Defendant's Rule
12(f) motion is based on the appropriateness of maintaining a class
action, the Judge declines to dismiss the Plaintiff's class
allegations at the pleading state.
For the foregoing reasons, Judge Moskowitz granted in part and
denied in part the Defendants' Motion to Dismiss Plaintiff's FAC.
He granted the Plaintiff leave to amend his complaint as to the
failure to warn products liability cause of action within 21 days
of the entry of the Order. The Defendants will file a response to
the present or amended complaint within 21 days of the service of
any amended complaint or the expiration of the 21-day period to
amend, whichever comes first.
The Judge noted his concern that the action may involve only
personal injury damages, which if true, may make the action
inappropriate for class resolution. The Judge states that it is
unclear from the Plaintiff's FAC whether he would have purchased
the Evenup had the Defendants disclosed the alleged defect when he
obtained the boot, and therefore, it is unclear what, if any,
economic damages the Plaintiff has suffered. However, the Judge
elected to make a determination on the existence of any economic
damages upon a fuller record after a limited discovery period.
Accordingly, discovery as to the Plaintiff's damages will take
priority, and any motion for class certification must be filed
within six months of the filing of the Defendant's answer to the
complaint.
A full-text copy of the Court's Dec. 30, 2020 Order is available at
https://tinyurl.com/y52mo9kz from Leagle.com.
ENHANCED RECOVERY: Volkman Suit Seeks Final OK of Class Settlement
------------------------------------------------------------------
In the class action lawsuit captioned as DEREK VOLKMAN, on behalf
of himself and all others similarly situated, v. ENHANCED RECOVERY
COMPANY, LLC, a Delaware Limited Liability Company, d/b/a ERC, Case
No. 1:18-cv-00091-WCG (E.D. Wisc.), the Plaintiff asks the Court to
enter an order granting his unopposed motion for final approval of
class settlement agreement.
The Plaintiff achieved a settlement for Class Members which
provides significant protections including direct payments of
$80.65 to each Class Member. In short, the Settlement represents a
victory for Wisconsin residents in the sphere of consumer
protection.
Summary of the Terms of the Settlement:
(1) Class Recovery.
ERC will create a class settlement fund of $133,000,
which the Administrator shall distribute on a pro rata
basis to each Class Member who did not previously seek
exclusion from the Class, and whose Notice of Settlement
is not returned as undeliverable.
(2) Plaintiff's Recovery.
Subject to Court approval, ERC agrees to pay the
Plaintiff $1,000.00 for his statutory damages pursuant to
15 U.S.C. section 1692k(a)(2)(B) and, an additional
$5,000.00 in recognition of his service to the Class.
(3) Attorneys' Fees and Costs.
In connection with Class Counsel's application for
approval of attorney's fees and costs, the Parties
stipulate that if the Court grants the Final Order, then
the Litigation is a "successful action” within the
meaning of 15 U.S.C. section 1692k(a)(3) notwithstanding
that ERC does not admit liability. As such, and subject
to court approval, ERC agrees Class Counsel shall be
entitled to receive $151,000.00, which covers all fees
and all expenses arising out of the Litigation and will
not in any way reduce, the Class Recovery. I
On September 24, 2020, the Court preliminarily approved the
Parties' Settlement and conditionally certified the settlement
Class under Federal Rule of Civil Procedure 23(b)(3). The Court
should now grant final approval to the Settlement because it is a
fair, reasonable, and adequate result for Class Members, the
Plaintiff contends.
On May 30, 2018, the Plaintiff filed a Motion for Class
Certification, which ERC opposed. On October 24, 2018, the Court
granted Plaintiff's motion and certified the following litigation
class pursuant to Fed. R. Civ. P. 23(b)(3), which consists of 1,691
members:
"all persons with addresses in the State of Wisconsin to whom
Enhanced Recovery Company, LLC mailed an initial written
communication to collect a debt between January 17, 2017 and
February 7, 2018, which was not returned as undeliverable,
and which stated "[y]our recently disconnected Time Warner
Cable account has been forwarded to us to assist you in the
resolution of your balance due."
The Plaintiff's complaint alleges ERC violated the Fair Debt
Collection Practices Act (FDCPA) by mailing a collection letter to
Plaintiff which, by its terms, only described a debt ERC sought to
collect, and failed to "clearly and accurately" identify the
creditor to whom the debt was owed as required by 15 U.S.C. section
1692g(a)(2).
ERC provides debt collection and asset recovery and reporting
services.
A copy of the Plaintiff's unopposed motion for final approval of
class settlement agreement to certify class dated Jan. 4, 2020 is
available from PacerMonitor.com at https://bit.ly/2LlSH7a at no
extra charge.[CC]
Attorneys for the Plaintiff and Certified Class, are:
Andrew T. Thomasson, Esq.
STERN THOMASSON LLP
150 Morris Avenue, 2nd Floor
Springfield, NJ 07081-1315
Telephone (973) 379-7500
E-mail: Andrew@SternThomasson.com
Philip@SternThomasson.com
- and -
Katelyn B. Busby, Esq.
BUSBY LAW , PLLC
P.O. Box 1384
Monticello, AR 71657
Telephone (870) 723-2179
E-mail: kbusby@busbylaw.org
EQT PRODUCTION: Suit Seeks to Certify Domenic Laudato as Class Rep.
-------------------------------------------------------------------
In the class action lawsuit captioned as PATRICIA ASBURY, ET AL.,
v. EQT CORPORATION, EQUITRANS, L.P., EQT PRODUCTION COMPANY, and
EQT MIDSTREAM PARTNERS, L.P., Case No. 2:18-cv-01005-CB (W.D. Pa.),
the Plaintiffs ask the Court to enter an order certifying Domenic
Laudato, Jr. as class of representative.
At issue in this litigation is the space on the putative class'
properties' located in large, naturally-occurring, underground
formations, which the Defendants have occupied and profited from by
storing natural gas without prior consent or compensation. Per the
U.S. Energy Information Administration, use of these underground
caverns is the most common method to store natural gas in the
United States.
This case is ideally suited for class certification because it will
allow resolution of legal issues commonly affecting a wide class of
individuals who own property in Defendants' Federal Energy
Regulatory Commission (FERC)-defined storage fields and who are
owed compensation. Presenting these issues on behalf of the entire
class of persons affected will allow the Court to determine these
issues, at one time, on a class-wide basis, the Plaintiffs
contend.
Domenic Laudato Jr., is the owner of two adjacent, one-acre
parcels, and accompanying gas storage rights, and which are
entirely located within the combined "active" and "buffer" zones of
the Finleyville. Identified as tax parcel 1276-G-00102-0000-00
(Allegheny County) (Parcel 1) and 1276-G-00090-0000-00 (Allegheny
County) (Parcel 2), Mr. Laudato, Jr., gained titled to Parcels 1
and 2 through deed in 2011.
EQT is an American energy company engaged in hydrocarbon
exploration and pipeline transport. It is headquartered in EQT
Plaza in Pittsburgh, Pennsylvania. In the 2018 Forbes Global 2000,
EQT was ranked as the 1426th-largest public company in the world.
A copy of the Plaintiffs' motion to certify class dated Jan. 4,
2020 is available from PacerMonitor.com at https://bit.ly/3oiHNh8
at no extra charge.[CC]
The Plaintiffs are represented by:
Jordan H. Walker, Esq.
SEVER STOREY, LLP
881 3rd Ave. SW, Suite 101
Carmel, IN 46032
Telephone: (317) 575-9942
FDM GROUP: Park Suit Seeks Final Approval of Class Settlement
-------------------------------------------------------------
In the class action lawsuit captioned as GRACE PARK, individually
and on behalf of all others similarly situated, et al., v. FDM
GROUP, INC., Case No. 1:16-cv-01520-LTS-SN (S.D.N.Y.), the
Plaintiff asks the Court to enter an order:
1. granting final approval of the settlement reached by the
parties in this action;
2. certifying the following settlement class under Federal
Rule of Civil Procedure 23 in connection with the
settlement process:
"all persons employed by Defendant as Consultants from
February 26, 2010 through December 31, 2019 who were
classified by the Defendant as exempt and paid pursuant to
a hybrid compensation model consisting of base pay and
daily bonus payments"; and
3. certifying the following settlement class under the Fair
Labor Standards Act, 29 U.S.C. section 216(b) in
connection with the settlement process:
"all persons employed by Defendant as Consultants from
January 29, 2014 through December 31, 2019 who were
classified by theDefendant as exempt and paid pursuant to
a hybrid compensation model consisting of base pay and
daily bonus payments."
Settlement Terms
-- Settlement Amount.
(A) The Defendant agrees to pay the Gross Settlement
Fund, which shall fully and finally resolve and
satisfy any and all claims that were or could have
been asserted in this Litigation, including without
limitation, for (i) attorneys' fees, expenses, and
costs; (ii) fees to the Claims Administrator; (iii)
all amounts to be paid to all Participating Class
Members for releasing claims as set forth herein;
and (iv) any Service Awards
(B) Other than any employer-side payroll taxes such as
FICA, FUTA, and the like, the maximum total payment
by Defendant under this Agreement, including all
attorneys' fees, subject to Court approval, and
past, present, and future costs, liquidated
damages, penalties, interest, and any other
payments provided by this Agreement or recoverable
in the Litigation is $4,135,000.00.
-- Settlement Amounts Payable as Attorneys' Fees, Expenses
and Costs.
At the Fairness Hearing and in separate Motion for
Attorneys' Fees and Costs, to be filed with the Court
simultaneously with the Motion for Final Approval,
Class Counsel will petition the Court for an award of
attorneys' fees of $1,378,333.33, representing one-
third of the Gross Settlement Fund, plus additional
litigation costs and expenses not to exceed $120,000,
all to be paid out of the Gross Settlement Fund. The
Defendant will not oppose this application, including
any appeal or request for reconsideration if the
application is denied or modified by the Court. After
payment of the Court-approved attorneys' fees award and
costs, the Defendant shall have no additional liability
for Class Counsel's attorneys' fees, expenses and/or
costs.
-- Administration Fees
Prior to the Fairness Hearing, in the Motion for Final
Approval, Class Counsel shall petition the Court for
reimbursement of the reasonable costs and expenses of
the Claims Administrator from the Gross Settlement Fund
in the amount of $25,188. Subject to Defendant's review
and reasonable approval, Defendant will not oppose such
application. After payment of the Court-approved Claims
Administrator’s fees and costs, the Defendant shall
have no additional liability for the Claims
Administrator's fees and/or costs.
FDM Group is an international professional services company
headquartered in London, United Kingdom with offices in Leeds,
Glasgow, Brighton, New York City, Toronto, Reston, Frankfurt, Hong
Kong, Singapore, Australia, and China.
A copy of the Plaintiff's motion to certify class dated Jan. 4,
2020 is available from PacerMonitor.com at https://bit.ly/3nmca4W
at no extra charge.[CC]
Attorneys for the Plaintiffs and the Classes and Collectivism are:
Christopher Q. Davis, Esq.
Rachel M. Haskell, Esq.
THE LAW OFFICE OF CHRISTOPHER Q. DAVIS, PLLC
80 Broadway, Suite 703
New York, NY 10004
Telephone: (646) 430-7930
GENERALI US BRANCH: Oglevee Suit Transferred to N.Y. Southern Dist.
-------------------------------------------------------------------
The case captioned as Rebecca Oglevee, on behalf of herself and all
others similarly situated, Plaintiff v. Generali U.S. Branch and
Generali Global Assistance, Inc., Defendants, was transferred from
the United States District Court for the Western District of
Pennsylvania with the assigned Case No. 2:20-cv-01277 to the U.S.
District Court for the Southern District of New York on Dec. 29,
2020, and assigned Case No. 1:20-cv-11003-JGK.
The docket of the case states the nature of suit as Contract: Other
filed pursuant to a Diversity-Breach of Contract.
Generali U.S. Branch provides a wide range of insurance products
and services and works closely with companies within the Generali
Group and their multinational clients.[BN]
The Plaintiff is represented by:
Gary F. Lynch, Esq.
Carlson Lynch, LLP
1133 Penn Avenue
5th Floor
Pittsburgh, PA 15222
Tel: (412) 322-9243
Email: glynch@carlsonlynch.com
- and -
Jamisen A. Etzel, Esq.
Carlson Lynch, LLP
1133 Penn Avenue
5th Floor
Pittsburgh, PA 15222
Tel: (412) 322-9243
Fax: (412) 231-0246
Email: jetzel@carlsonlynch.com
The Defendants are represented by:
Mark D. Shepard, Esq.
Babst, Calland, Clements & Zomnir
Two Gateway Center
8th Floor
Pittsburgh, PA 15222
Tel: (412) 394-6546
Fax: (412) 394-6576
Email: mshepard@babstcalland.com
- and -
Andrew C DeGory, Esq.
Babst Calland Clements and Zomnir, PC
603 Stanwix St.
Two Gateway Center, 9th Floor
Pittsburgh, PA 15222
Tel: (412) 773-8749
Fax: (412) 394-6576
Email: adegory@babstcalland.com
- and -
Christopher J Houpt, Esq.
Mayer Brown LLP
1221 Avenue of the Americas
New York, NY 10020
Tel: (212) 506-2380
Fax: (212) 849-5830
Email: choupt@mayerbrown.com
- and -
Ilana Cohen, Esq.
Mayer Brown
1221 Avenue of Americas
New York City, NY 10020
Tel: (212) 506-2677
Email: icohen@mayerbrown.com
- and -
Robert S. Harrell, Esq.
Mayer Brown LLP
700 Louisiana Street, Ste 3400
Houston, TX 77002
Tel: (713) 238-2700
Email: rharrell@mayerbrown.com
GENERALI US BRANCH: Young Files PI Suit in New York
---------------------------------------------------
The case captioned as Jo Ellen Young, individually and on behalf of
all others similarly situated, Plaintiff v. Generali U.S. Branch,
Generali Global Assistance, Inc. and Customized Services
Administrators, Inc. doing business as: CSA Travel Protection,
Defendants, was transferred from the United States District Court
for the Southern District of California with the assigned Case No.
3:20-cv-01804 to the U.S. District Court for the Southern District
of New York on Dec. 29, 2020, and assigned Case No.
1:20-cv-11007-JGK.
The docket of the case states the nature of suit as Contract: Other
filed over a Personal Injury.
Generali U.S. Branch provides a wide range of insurance products
and services and works closely with companies within the Generali
Group and their multinational clients.[BN]
The Plaintiff is represented by:
Alan Frank Law, Esq.
Cooper & Scully PC
505 Sansome Street, Suite 1550
San Francisco, CA 94111
Tel: (415) 956-9700
Fax: (415) 391-0274
Email: alan.law@cooperscully.com
The Defendants are represented by:
Bronwyn F Pollock, Esq.
Mayer Brown LLP
350 South Grand Avenue, Suite 2500
Los Angeles, CA 90071-1503
Tel: (213) 229-5194
Fax: (213) 625-0248
Email: bpollock@mayerbrown.com
- and -
Archis Ashok Parasharami, Esq.
Mayer Brown LLP (DC)
1999 K Street, N.W.
Washington, DC 20006
Tel: (202) 263-3328
Fax: (202) 263-5328
Email: aparasharami@mayerbrown.com
- and -
Christopher Mitchell Hendy, Esq.
Mayer Brown LLP
350 South Grand Avenue
25th Floor
Los Angeles, CA 90071-1503
Tel: (213) 229-5142
Fax: (213) 625-0248
Email: mhendy@mayerbrown.com
JAKKS PACIFIC: Bunting Alleges Violation under ADA
--------------------------------------------------
Jakks Pacific, Inc. is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Rasheta Bunting, individually and as the representative of a class
of similarly situated persons, Plaintiff v. Jakks Pacific, Inc.
doing business as: C'est Moi, Defendant, Case No. 1:20-cv-06303
(E.D. N.Y., Dec. 29, 2020).
Jakks Pacific, Inc. is an American company that designs and markets
toys and consumer products, with a range of products that feature
numerous children's toy licenses.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Tel: (917) 373-9128
Email: shakedlawgroup@gmail.com
KATE MCLEOD INC: Kiler Asserts Breach of ADA in New York
--------------------------------------------------------
Kate McLeod Inc. is facing a class action lawsuit filed pursuant to
the Americans with Disabilities Act. The case is styled as Marion
Kiler, individually and as the representative of a class of
similarly situated persons, Plaintiff v. Kate McLeod Inc.,
Defendant, Case No. 1:20-cv-06297 (E.D. N.Y., Dec. 29, 2020).
Kate McLeod Inc. is the creator of the Body Stone -- a solid
moisturizer that glides on like silk.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Tel: (917) 373-9128
Email: shakedlawgroup@gmail.com
KOWALSKI HEAT: Davis Seeks Certification of FLSA Collective Action
------------------------------------------------------------------
In the class action lawsuit captioned as WESLEY DAVIS, on behalf of
himself and others similarly situated, v. KOWALSKI HEAT TREATING
CO., Case No. 1:20-cv-02137-JG (N.D. Ohio), the Plaintiff asks the
Court to enter an order:
1. conditionally certifying this case as a Fair Labor
Standards Act (FLSA) collective action under section
216(b) of, and implementing a procedure whereby Court-
approved Notice of FLSA claims is sent by United States
Mail and e-mail to:
"all current and former hourly, non-exempt production
employees of Defendant who worked 40 or more hours in
any workweek and had one or more of the following occur:
(a) the application of Defendant's meal deduction;
(b) the performance of pre-shift work; and/or
(c) they earned a production bonus, during the three years
preceding the filing of this Motion and continuing
through the final disposition of this case ("Potential
Opt-In Plaintiffs")";
2. approving the proposed Notice and Consent to Join forms;
3. directing the Defendant to provide, within 14 days of an
order granting conditional certification, a Roster of all
Potential Opt-In Plaintiffs that includes their full
names, their dates of employment, their locations worked,
job titles, their last known home addresses, phone
numbers, and their personal email addresses; and
4. directing that the Court-approved Notice and Consent to
Join forms be sent to such present and former employees
within 14 days of receipt of the Roster using the
Potential Opt-In Plaintiffs' home and email addresses.
This case involves the Defendant's meal deduction, pre-shift work,
and regular rate policies or practices. The Named Plaintiff has
submitted allegations and evidence that under the policies or
practices, the Defendant (1) deducts thirty minutes from their
hourly, non-exempt employees' daily hours worked for meal breaks
that are either never taken or that are interrupted with work
duties; (2) did not compensate hourly, non-exempt employees for
integral and indispensable pre-shift work; and (3) did not include
discretionary bonuses in hourly, non-exempt employees' regular
rates of pay for purposes of calculating overtime. Consequently,
each of these policies or practices deprives the Defendant's
hourly, non-exempt employees of their hard-earned overtime pay,
says the complaint.
The Defendant is a corporation that provides distortion sensitive
thermal processing services to customers. The Defendant employed
Potential Opt-in Plaintiffs to work at its facility as operators
and other production employees.
A copy of the Plaintiff's motion to certify class dated Dec. 31,
2020 is available from PacerMonitor.com at https://bit.ly/3aX4uUg
at no extra charge.[CC]
Attorneys for the Plaintiff and those similarly situated, are:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite No. 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
LAFAYETTE, LA: Summary Dismissal of Claims in Balbesi Suit Affirmed
-------------------------------------------------------------------
In the case, NIDAL BALBESI, ET AL. v. LAFAYETTE-CITY PARISH
CONSOLIDATED GOVERNMENT, ET AL., Case No. CA 20-61 (La. App.), the
Court of Appeal of Louisiana, Third Circuit, affirmed the trial
court's summary judgment dismissal of the Plaintiffs' claims
challenging the constitutionality of annual transfers of a portion
of revenue generated by the Lafayette Utilities System to the City
General Fund of Lafayette City-Parish Consolidated Government.
LUS is a public utility that provides electric, water, and
wastewater services to residents of the City of Lafayette and
certain areas of Lafayette Parish. It was established by Lafayette
as a "revenue-producing utility." As such, since 1949, Lafayette
has issued various bonds to provide funding for LUS' construction,
operations, and improvements, with LUS' revenue securing the bonds.
LUS' primary source of revenue is charges to its customers for
services.
The various bond resolutions and ordinances between Lafayette and
the bondholders establish how LUS' revenue is to be deposited into
and/or flow through a series of funds or accounts. The annual
transfers of up to 12% of LUS' revenues from LUS to the City
General Fund ("ILOT payments") are the subject of the litigation.
The annual ILOT payment from LUS to the City General Fund has
increased over time from less than $2 million in 1975, to between
$20 million and $24 million since 2015.
On June 6, 2016, Plaintiffs Balbeisi, Mark Kopieczek, Lana
Kopieczek, Agave Cantina, Inc., and other persons similarly
situated, filed a Class Action Petition for Declaratory Judgment
and Damages, naming as Defendants, Lafayette City-Parish
Consolidated Government and LUS. Therein, they allege that the
ILOT payments Lafayette has imposed, and continues to impose, upon
LUS is an unlawful circumvention of La. Const. art. 7, Section
21(A), which prohibits the imposition of ad valorem property taxes
on public property used for public purposes.
In their Petition, the Plaintiffs seek certification of a proposed
class, a declaratory judgment ruling that the ILOT payments violate
La.Const. art. 7, Section 21(A), as well as a judgment requiring
the Defendants to refund the Plaintiffs and each of the Class
Members amounts paid to LUS which are attributable to ILOT payments
transferred by LUS to Lafayette. The Plaintiffs also seek interest
and attorney fees.
On April 29, 2019, the Plaintiffs filed a Motion for Summary
Judgment seeking a judgment declaring that the ILOT payments made
by LUS since 1975 to Lafayette were made in violation of the
exemption in Article VII, Section 21(A) of the Louisiana
Constitution of 1974 exempting from ad valorem taxation all public
lands and other public property used for public purposes. On June
7, 2019, the Defendants filed a cross Motion for Summary Judgment
seeking to dismiss the Plaintiffs' claims, arguing that the ILOT
payments are authorized by Louisiana law and do not violate La.
Const. art. 7, Section 21(A).
The parties' cross motions for summary judgments were heard on July
8, 2019. On July 19, 2019, the trial court signed a judgment
granting the Defendants' motion, denying the Plaintiffs' motion,
and dismissing the Plaintiffs' claims.
The Plaintiffs appeal. They allege that the trial court erred in
granting the Appellees' motion for summary judgment, denying the
Appellants' motion for summary judgment, dismissing the Appellants'
claims against the Appellees, and failing to issue a declaratory
judgment that the annual in-lieu-of-tax payments made by LUS to the
City were in violation of Article VII, Section 21(A) of the
Louisiana Constitution, which prohibits ad valorem taxation of
public lands and other public property use for public purposes.
In response, the Defendants argue on appeal that the annual ILOT
payments are not ad valorem taxes as they are in no way related to
valuation of any property and the Plaintiffs have failed to
establish any evidence to the contrary. Further, according to
them, it is not ILOT that generates revenue for Lafayette; instead,
it is LUS that generates revenue by providing utility services to
its customers, and a portion of that revenue is transferred to the
City General Fund as ILOT payments.
The issue presented in the parties' cross motions for summary
judgment is whether the annual ILOT payments from LUS to
Lafayette's City General Fund violate La. Const. art. 7, Section
21(A).
The Appellate Court agrees with the Defendants that LUS is a
revenue-producing public utility as contemplated by La. Const. art.
6, Section 37 and La. R.S. 33:4161, et seq. and that, in accordance
therewith, LUS may generate revenue in connection with its
operations.
The Appellate Court further agrees with the Plaintiffs that LUS is
exempt from ad valorem taxation as contemplated by La. Const. art.
7, Section 21(A). However, after reviewing the record, the
Appellate Court finds no support for their suggestion that the ILOT
payments, which are a limited percentage of LUS' revenue that is
transferred annually to the City General Fund, should be considered
a de facto ad valorem tax simply because the transfers are referred
to in the bond ordinances as "payments-in-lieu-of tax," and/or they
are placed into the City General Fund along with other tax revenue.
There is no evidence indicating that ILOT payments are in any way
related to the value of any property.
Further, while the Plaintiffs argue that the ILOT payments should
be considered de facto ad valorem taxes because they are unrelated
to the utility services LUS provides to its customers, the
Plaintiffs fail to provide any evidence in support of the argument.
Instead, the only evidence in the record indicates that ILOT
payments are in fact a percentage of LUS' revenue, which is
primarily generated by charges to its customers for utility
services. Moreover, the Court finds no authority supporting the
Plaintiffs' position that the portion of LUS' revenue that exceeds
the cost of its operations must be considered a de facto ad valorem
tax.
For these reasons, the Appellate Court affirmed the trial court's
summary judgment dismissal of the Plaintiffs' claims against the
Defendants. The costs of the appeal are assessed to Plaintiffs
Balbeisi, Kopieczek, Kopieczek, and Agave.
A full-text copy of the Court's Dec. 30, 2020 Order is available at
https://tinyurl.com/y5p48xce from Leagle.com.
Robert A. Mahtook, Jr. -- RMAHTOOK@MANDLLAW.COM -- Ward F. Lafleur
-- WLAFLEUR@MANDLLAW.COM -- Kay A. Theunissen, Amy J. Miller,
Mahtook & Lafleur, 600 Jefferson Street, Suite 1000(70501), P.O.
Box 3089, in Lafayette, Louisiana 70502-3089, (337) 266-2189,
COUNSEL FOR DEFENDANTS/APPELLEES: Lafayette Utilities System
Lafayette City-Parish Consolidated Government
Jeffrey Michael Bassett -- JeffB@mmrblaw.com -- Patrick C. Morroe
-- patm@mmrblaw.com -- Richard T. Haik, Jr., Richard T. Haik, Sr.,
Morrow, Morrow, Ryan, Bassett & Haik, P.O. Drawer 1787, in
Opelousas, Louisiana 70571-1780, (337) 948-4483, COUNSEL FOR
PLAINTIFS/APPELLANTS: Agave Cantina, Inc. Lana Kopieczek Mark
Kopieczek Nidal Balbesi.
Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, 723 Broad Street,
in Lake Charles, Louisiana 70601, (337) 436-6611, COUNSEL FOR
PLAINTIFS/APPELLANTS: Agave Cantina, Inc. Lana Kopieczek Mark
Kopieczek Nidal Balbesi.
Robert L. Willmore -- rwillmore@crowell.com -- (pro hac vice)
Teresa M. Abney -- tabney@crowell.com -- (pro hac vice) Crowell &
Moring LLP, 1001 Pennsylvania Ave., NW, in Washington, D.C. 20004,
(202) 624-2500, COUNSEL FOR PLAINTIFFS/APPELLANTS: Agave Cantina,
Inc. Lana Kopieczek Mark Kopieczek Nidal Balbesi.
LUMOS PHARMA: Settlement Reached in Abramson Securities Class Suit
------------------------------------------------------------------
Lumos Pharma Inc. said in its Form 8-K filing with the U.S.
Securities and Exchange Commission filed on December 21, 2020, that
a settlement has been reached in the securities class action suit
entitled, Abramson v. NewLink Genetics Corp., et al., Case
1:16-cv-3545-WHP.
On December 16, 2020, Lumos Pharma, Inc., formerly known as NewLink
Genetics Corporation reached a settlement in principle to fully
resolve the securities class action suit, Abramson v. NewLink
Genetics Corp., et al., Case 1:16-cv-3545-WHP, initially filed on
May 12, 2016, pending against the Company, the Company's former
Chief Executive Officer Charles J. Link, Jr., and the Company's
former Chief Medical Officer and President Nicholas Vahanian, in
the United States District Court for the Southern District of New
York.
The agreement, which is subject to final documentation, court
approval and certain other conditions, provides in part for a
settlement payment in exchange for the dismissal and a release of
all claims against the defendants in connection with the securities
class action suit.
The full amount of the settlement payment is expected to be paid by
the Company's insurance provider under its insurance policy.
Lumos Pharma Inc. develops biopharmaceutical products. The Company
operates as a stage biopharmaceutical development company
developing a treatment for CTD patients and their families. Lumos
Pharma offers therapies to patients afflicted with unmet medical
needs in severe, rare, and genetic diseases. The company is based
in Austin, Texas.
MANNA 2ND AVENUE: Herrera Files FDCPA Suit in New York
------------------------------------------------------
A class action lawsuit has been filed against Manna 2nd Avenue LLC.
The case is styled as Alfredo Bello Herrera and Angelo Bello Silva,
on their own behalf and on behalf of others similarly situated,
Plaintiffs v. Manna 2nd Avenue LLC, Manna Madison Avenue, LLC,
Manna Parc 61 LLC, Manna Madison Avenue LLC, Mamexicana LLC, Manna
Lexington Avenue LLC, West D&P LLC, Mamericana 92 LLC, Paola
Pedrignani and Igor Segota, Defendants, Case No. 1:20-cv-11026
(S.D. N.Y., Dec. 29, 2020).
The docket of the case states the nature of suit as Labor: Fair
Standards filed pursuant to the Fair Labor Standards Act.
Manna 2nd Avenue LLC is a Modern Italian restaurant.[BN]
The Plaintiffs are represented by:
John Troy, Esq.
Troy Law, PLLC
41-25 Kissena Boulevard, Ste 103
Flushing, NY 11355
Tel: (718) 762-2332
Email: johntroy@troypllc.com
MEDINAH COUNTRY CLUB: Santilli Sues Over Biometrics Data Collection
-------------------------------------------------------------------
Gina Santilli, individually and on behalf of all others similarly
situated, Plaintiff, v. Medinah County Club, Defendant, Case No.
2020L001431 (Ill. Cir., December 10, 2020), seeks an injunction
requiring Defendants to cease all unlawful activity related to the
capture, collection, storage and use of biometrics, and statutory
damages together with costs and reasonable attorneys' fees for
violation of the Illinois Biometric Information Privacy Act.
Medinah is a Country Club that hosts Golf Championships where
employees are required to scan their fingerprint in its biometric
time tracking system as a means of authentication, instead of using
only key fobs or other identification cards. It has allegedly
collected the biometrics of its employees exposing their data to
serious and irreversible privacy risks. [BN]
Plaintiff is represented by:
David Fish, Esq.
Mara Baltabols, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Tel: (646) 837-7150
Fax: (212) 989-9163
E-Mail: dfish@fishlawfirm.com
mara@fishlawfirm.com
docketing@fishlawfirm.com
MIJ INC: Class Certification Bid Denied as Moot in Ford Suit
------------------------------------------------------------
In the class action lawsuit captioned as ROBERTA FORD on behalf of
Herself and All Other Similarly Situated v. MIJ, INC., d/b/a
WIGGLES GENTLEMEN'S CLUB, Case No. 2:20-cv-00353-TLS-JEM (N.D.
Ind.), the Hon. Judge John E. Martin entered an order:
1. granting the stipulated motion to stay discovery pending
the Court's ruling on the Defendant's Motion for Summary
Judgment/Motion to Dismiss;
2. staying the discovery pending resolution of the motion for
summary judgment/motion to dismiss;
3. denying as moot the Defendant's Motion to Stay Discovery,
Class Certification, and Collection Action Certification
Pending Ruling Upon Defendant's Motion for Summary
Judgment/Motion to Dismiss;
4. vacating the Rule 16 Preliminary Pretrial Conference
currently set for January 14, 2021, to be reset pending
resolution of the Defendant's Motion for Summary
Judgment/Motion to Dismiss.
The Defendant operates an adult entertainment club.
A copy of the Court's order dated Jan. 4, 2020 is available from
PacerMonitor.com at https://bit.ly/3rYgcUQ at no extra charge.[CC]
MINDFINDERS INC: Suit Seeks to Stay Class Certification Deadline
----------------------------------------------------------------
In the class action lawsuit captioned as EBONY DEW and KRYSTAL
OWENS, individually and on behalf of all others similarly situated,
v. MINDFINDERS, INC., Case No. 1:20-cv-02930-BAH (D.D.C.), the
Plaintiffs ask the Court to enter an order staying their deadline
to move for class certification under Rule 23 of the Federal Rules
of Civil Procedure, until a discovery schedule is ordered in this
matter.
The Plaintiffs contend that they had to attempt service of process
numerous times before they were ultimately successful on December
18, 2020. Service here was particularly hard because it appears
that corporate officers for the Defendant are all working remotely
because of the pandemic and they did not respond to electronic
communications. Because the Class and Collective Action Complaint
was filed on October 13, 2020, without an extension, their motion
for class certification is due January 11, 2021. This is their
first request for an extension, and an extension will not affect
any other deadlines.
Further, no one has appeared yet on behalf of the Defendant and the
parties have not been able to confer. Extending the class
certification deadline would avoid piecemeal litigation and allow
the parties to propose a holistic schedule for discovery and motion
practice that builds in time for the discovery necessary to sustain
a motion for class certification, the Plaintiff adds.
Mindfinders was founded in 2001. The company's line of business
includes providing management consulting services.
A copy of the Plaintiffs' motion to stay class certification
deadline dated Jan. 4, 2020 is available from PacerMonitor.com at
https://bit.ly/3hJNmCR at no extra charge.[CC]
The Plaintiffs are represented by:
Attorneys for the Plaintiffs and the Putative Collective and
Classes, are:
Sally J. Abrahamson, Esq.
WERMAN SALAS P.C.
335 18th Pl. NE
Washington, D.C. 20002
Telephone: (202) 744-1407
E-mail: sabrahamson@flsalaw.com
- and -
Michael D. Lore, Esq.
MICHAEL D. LORE, P.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 782-5291
E-mail: mlore@lorefirm.com
MOGA TRANSPORT: Vae Files Suit in California
--------------------------------------------
A class action lawsuit has been filed against Moga Transport, Inc.
The case is styled as Marie Barraza Vae, on behalf of herself and
on behalf of all persons similarly situated, Plaintiff v. Moga
Transport, Inc., a California Corporation, Defendant, Case No.
BCV-20-103017 (Cal. Super. Ct., Dec. 29, 2020).
The docket of the case states the nature of suit as CV Other
Employment - Civil Unlimited.
Moga Transport, Inc. is a milk hauling/logistics company serving
clients in California.[BN]
The Plaintiff is represented by:
Alexander Isaac Dychter, Esq.
Dychter Law Offices, APC
180 Broadway, Ste 1835
San Diego, CA 92101-5064
Tel: (619) 487-0777
Fax: (619) 330-1827
Email: Alex@DychterLaw.com
MONSANTO COMPANY: Long Beach City Seeks to Certify Settlement Class
-------------------------------------------------------------------
In the class action lawsuit captioned as CITY OF LONG BEACH, a
municipal corporation; COUNTY OF LOS ANGELES, a political
subdivision; CITY OF CHULA VISTA, a municipal corporation; CITY OF
SAN DIEGO, a municipal corporation; CITY OF SAN JOSE, a municipal
corporation; CITY OF OAKLAND, a municipal corporation; CITY OF
BERKELEY, a municipal corporation; CITY OF SPOKANE, a municipal
corporation; CITY OF TACOMA, a municipal corporation; CITY OF
PORTLAND, a municipal corporation; PORT OF PORTLAND, a port
district of the State of Oregon; BALTIMORE COUNTY, a political
subdivision; MAYOR AND CITY COUNCIL OF BALTIMORE; all individually
and on behalf of all others similarly situated, Case No.
2:16-cv-03493-FMO-AS (C.D. Cal.), v. MONSANTO COMPANY; SOLUTIA
INC., and PHARMACIA LLC, and DOES 1 through 100, the Plaintiffs
will move the Court on February 4, 202 to enter an order:
1. certifying a Settlement Class defined as follows:
"as of June 24, 2020 only, but not later, all National
Pollutant Discharge and Elimination System (NPDES) Phase I
and II city, town, village, borough, township, and
independent port district MS4 permittees with
jurisdictional boundaries within a HUC 12 Watershed that
contains and/or is immediately adjoining a 303(d) water
body impaired by polychlorinated biphenyls (PCBs) and all
NPDES Phase I and II county MS4 permittees with urbanized,
unincorporated boundaries within a HUC 12 Watershed that
contains and/or is immediately adjoining a 303(d) water
body impaired by PCBs;"
-- the term "MS4 Permittees" describe those cities, towns,
villages, boroughs, townships, counties, and
independent port districts permitted under the Clean
Water Act's NPDES permit process;
-- "MS4" stands for municipal separate stormwater system;
-- a "303(d) water body" is a body of water identified as
"impaired" by the concentration of PCBs found in that
water body;
-- limiting the Class to those MS4 permittees located in
watersheds that discharge into impaired water bodies
identifies those particular MS4 permittees that own
stormwater systems that do or could contribute PCBs
into 303(d) water bodies impaired by PCBs;
2. preliminary approving class action settlement;
3. approving notice plan;
4. appointing Steven Weisbrot of Angeion Group, LLC as class
action settlement administrator; and
5. appointing law firm Baron & Budd, P.C. as class counsel.
According to the complaint, the Plaintiffs and Defendants have
reached a proposed nationwide class action settlement to resolve
allegations that the Defendants' design, manufacture, sale,
promotion, and supply of chemicals known as PCBs resulted in the
contamination of the Plaintiffs' stormwater and other resources,
necessitating treatment and/or remediation to remove PCBs.
In the settlement, the Defendants have agreed to pay as a net class
benefit up to $550 million to be distributed to 2,528 class members
across the United States. The Defendant also has agreed to
separately pay class counsel attorneys' fees and expenses, and
class administration and notice costs.
Monsanto Company (now known as Pharmacia LLC) manufactured a class
of industrial chemicals called polychlorinated biphenyls ("PCBs")
between the 1930s and 1977. The Plaintiffs allege that, while
Monsanto was promoting the widespread use of PCBs, the company also
knew that PCBs were toxic and foresaw the alleged type of
environmental/stormwater contamination.
A copy of the Plaintiffs' motion to certification of settlement
class dated Dec. 31, 2020 is available from PacerMonitor.com at
https://bit.ly/351ziiS at no extra charge.[CC]
The Proposed Lead Class Counsel are:
Scott Summy, Esq.
Carla Burke Pickrel, Esq.
John P. Fiske, Esq.
BARON & BUDD, P.C.
3102 Oak Lawn Ave, No. 1100
Dallas, TX 75219
Telephone: (214) 521-3605
E-mail: SSummy@baronbudd.com
cburkepickrel@baronbudd.com
Fiske@baronbudd.com
NEKTAR THERAPEUTICS: Mulquin Consolidated Securities Suit Dismissed
-------------------------------------------------------------------
In the case, JOHN MULQUIN, Plaintiff v. NEKTAR THERAPEUTICS, et
al., Defendants, Case No. 18-cv-06607-HSG (N.D. Cal.), Judge
Haywood S. Gilliam, Jr., of the U.S. District Court for the
Northern District of California granted the Defendants' motion to
dismiss the Second Consolidated Class Action Complaint without
leave to amend.
The case is a consolidated securities class action brought by Lead
Plaintiffs Oklahoma Firefighters Pension and Retirement System and
El Paso Firemen & Policemen's Pension Fund, against Defendant
Nektar and Howard W. Robin, President and CEO; Stephen K.
Doberstein, Senior VP and Chief Scientific Officer, and later Chief
Research and Development Officer; and Jonathan Zalevsky, Senior VP
of Research Biology and Preclinical Development, and later Chief
Scientific Officer.
Nektar is a research-based biopharmaceutical company with a
research and development pipeline of new investigational drugs that
includes treatments for cancer, autoimmune disease, and chronic
pain. At issue in the case is Nektar's development of its
"flagship" drug, NKTR-214.
NKTR-214 was "a modified version of Interleukin-2," a human protein
that triggers the body's production of cancer-fighting cells.
While Interleukin-2 has long been an approved cancer therapy, a
patient would need significant quantities of native Interleukin-2
to get any kind of effect, and at that point it's wildly toxic.
The Company designed NKTR-214 to address the problem and produce
significant quantities of cancer-fighting cells without affecting
the production of immunosuppressive cells.
The Plaintiffs allege that the Defendants made false and misleading
statements to the public regarding the EXCEL trial in violation of
Section 10(b) and Rule 10b-5(b). They bring the securities action
"on behalf of a class of purchasers of the common stock of Nektar
who bought their shares between Jan. 10, 2017, and Sept. 28, 2018.
The Court previously dismissed the Plaintiffs' Consolidated Class
Action Complaint with leave to amend.
Pending before the Court is the Defendants' motion to dismiss the
SAC. In their SAC, the Plaintiffs allege violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule
10b-5 promulgated thereunder. The Defendants contend that the
Plaintiffs have again failed to sufficiently plead these elements.
The Defendants request that the Court takes judicial notice of or
considers incorporated by reference the following 11 documents: (1)
SEC filings (Exs. 10, 11); (2) investor presentation transcripts
(Exs. 1, 2, 4, 5, 6); (3) investor presentation slide decks (Exs.
3, 7, 8); and (4) an article (Ex. 9). The Plaintiffs filed no
objection to Defendants' request for judicial notice.
Judge Gilliam considers the investor presentation transcripts and
investor presentation slide decks that the Plaintiffs allege
contain false and/or misleading statements for the purpose of
determining what was disclosed to the market. He also considers
the Plainview article that Plaintiffs allege disclosed the
Defendants' alleged misstatements. And, because the SAC relies on
Exhibits 10-11 (each a Form 4) to support "a scienter inference" as
to the Defendants Doberstein and Robin, the Judge considers these
documents as evidence that the stock sales reflected in them
occurred.
Turning to the motion to dismiss, the Court previously held that
the CCAC failed to adequately allege that any of the statements in
the categories identified by the Plaintiffs were false or
misleading. With respect to the claimed basis concerning dosing,
it similarly found that the Plaintiffs failed to support the
assumption that the Figure 6 line chart provided the source data
for Nektar's EXCEL clinical trial representations.
The Judge now finds that it is insufficient to allege that the
challenged statements regarding the 30-fold increase chart were
false or misleading because the Defendants did not use the
Plaintiffs' preferred statistical methodology. Because the
Plaintiffs do not allege that the Defendants misrepresented their
own statistical methodology, analysis, and conclusions, but instead
criticize only the statistical methodology employed by the
Defendants, the Plaintiffs did not adequately plead falsity with
respect to statistic results. Because the SAC fails to adequately
allege that any of the challenged statements were materially false
or misleading, the Judge grants the Defendants' motion to dismiss
for failure to plead falsity.
The Court previously found the CCAC's scienter allegations
insufficient to survive dismissal, explaining that the Plaintiffs
failed to provide specific allegations that the Defendants
presented the 30-fold increase chart with knowledge and intent to
mislead or conceal the true EXCEL clinical trial results. As with
the falsity allegations, it stated that the Plaintiffs failed to
provide critical allegations necessary to transform the false and
misleading statements claim into more than a statistical
disagreement. The Judge again finds that the Plaintiffs' scienter
allegations insufficient to survive dismissal. Because the
Plaintiffs' allegations again fail to support a strong inference of
scienter, individually and when viewed holistically, the Judge also
grants the Defendants' motion to dismiss on this ground.
Finally, the Court previously held that the Plaintiffs failed to
establish loss causation as to either of the two alleged corrective
disclosures. The Plaintiffs alleged that corrective disclosures
leading to stock price declines occurred (1) on June 2, 2018, when
Nektar reported mid-stage results from the PIVOT clinical trial,
and (2) on Oct. 1, 2018, when the Plainview Report was published.
They raise the same two alleged corrective disclosures in the SAC.
Noting that the Plaintiffs have made virtually no amendments to
their loss causation allegations, the Defendants argue that the
Plaintiffs again fail to establish loss causation as to either the
June 4, 2018 or the Oct. 1, 2018 stock price decline.
Having failed to connect the Defendants' alleged misstatements
about the EXCEL trial to the June 2, 2018 announcement concerning
mid-stage results from a different trial, the Judge holds that the
Plaintiffs have not adequately pled that the challenged statements
foreseeably caused the June 4, 2018 stock decline. The nature of
the relationship between the data and the alleged misstatements
does not change the Judge's conclusion that the Plaintiffs have
failed to plausibly allege the Report constituted a corrective
disclosure. And because the Plaintiffs fail to establish loss
causation, he grants the Defendants' motion to dismiss on this
ground.
In light of the foregoing, Judge Gilliam granted the Defendants'
motion to dismiss all of the Plaintiffs' claims. Because the
Plaintiffs were previously granted an opportunity to remedy these
flaws but failed to do so, the claims are now dismissed without
leave to amend. The Clerk is directed to close the file.
A full-text copy of the Court's Dec. 29, 2020 Order is available at
https://tinyurl.com/y995rcu8 from Leagle.com.
NEUBASE THERAPEUTICS: Appeal in Lehman Suit v. Ohr Pharma Pending
-----------------------------------------------------------------
NeuBase Therapeutics, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on December 23, 2020,
for the fiscal year ended September 30, 2020, that plaintiffs filed
a notice of appeal of the order denying plaintiffs leave to amend
the complaint in the class action headed by George Lehman and
Insured Benefit Plans, Inc. against Ohr Pharmaceutical.
On February 14, 2018, plaintiff Jeevesh Khanna, commenced an action
in the Southern District of New York, against Ohr and several
current and former officers and directors, alleging that they
violated federal securities laws between June 24, 2014 and January
4, 2018.
On August 7, 2018, the lead plaintiffs, now George Lehman and
Insured Benefit Plans, Inc., filed an amended complaint, stating
the class period to be April 8, 2014 through January 4, 2018.
The plaintiffs did not quantify any alleged damages in their
complaint but, in addition to attorneys' fees and costs, they seek
to maintain the action as a class action and to recover damages on
behalf of themselves and other persons who purchased or otherwise
acquired Ohr common stock during the putative class period and
purportedly suffered financial harm as a result.
The company and the individuals dispute these claims and intend to
defend the matter vigorously.
On September 17, 2018, Ohr filed a motion to dismiss the complaint.
On September 20, 2019, the district court entered an order granting
the defendants' motion to dismiss. On October 23, 2019, the
plaintiffs filed a notice of appeal of that order dismissing the
action and other related orders by the district court.
After full briefing and oral argument, on October 9, 2020, the U.S.
Court of Appeals for the Second Circuit issued a summary order
affirming the district court's order granting the motion to dismiss
and remanding the action to the district court to make a
determination on the record related to plaintiffs' request for
leave to file an amended complaint.
On October 16, 2020, the district court requested the parties'
positions as to how they proposed to proceed in light of the Second
Circuit's decision. After letter briefing on this issue and
plaintiffs' alternative request for leave to file a second amended
complaint, on November 16, 2020, the district court denied
plaintiffs' request to amend and dismissed with prejudice
plaintiffs' claims.
On December 16, 2020, plaintiffs filed a notice of appeal of that
order denying plaintiffs leave to amend.
The Company cannot predict at this time whether plaintiffs will
choose to pursue any appeal or modification of the dismissal order
within the applicable time period.
NeuBase said, "This litigation could result in substantial costs
and a diversion of management's resources and attention, which
could harm the Company's business and the value of the Company's
common stock."
NeuBase Therapeutics, Inc., a biotechnology company, engages in the
development of various antisense therapies to address genetic
diseases in the United States. The company offers gene
silencingtherapies, including the proprietary PATrOL platform, a
peptide-nucleic acid antisense oligonucleotide for genetic diseases
caused by mutant proteins, including the Huntington's disease and
myotonic dystrophy, as well as various other genetic disorders.
NeuBase Therapeutics, Inc. is headquartered in Pittsburgh,
Pennsylvania.
On July 12, 2019, NeuBase completed the merger deal with Ohr
Pharmaceutical.
NEUBASE THERAPEUTICS: Wheby Class Action vs Ohr Pharma Ongoing
--------------------------------------------------------------
NeuBase Therapeutics, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on December 23, 2020,
for the fiscal year ended September 30, 2020, that Ohr
Pharmaceutical, Inc. continues to defend a class action entitled,
Wheby v. Ohr Pharmaceutical, Inc., et al., Case No.
1:19-cv-00541-UNA.
On March 20, 2019, a putative class action lawsuit was filed in the
United States District Court for District of Delaware naming as
defendants Ohr Pharmaceutical and its board of directors, Legacy
NeuBase, and Ohr Acquisition Corp., captioned Wheby v. Ohr
Pharmaceutical, Inc., et al., Case No. 1:19-cv-00541-UNA.
The plaintiffs in the Wheby Action allege that the preliminary
joint proxy/prospectus statement filed by Ohr with the SEC on March
8, 2019 contained false and misleading statements and omitted
material information in violation of Section 14(a) of the Exchange
Act and SEC Rule 14a-9 promulgated thereunder, and further that the
individual defendants are liable for those alleged misstatements
and omissions under Section 20(a) of the Exchange Act.
The complaint in the Wheby Action has not been served on, nor was
service waived by, any of the named defendants in that action. The
action seeks, among other things, to rescind the Merger or an award
of damages, and an award of attorneys' and experts' fees and
expenses.
NeuBase said, "The defendants dispute the claims raised in the
Wheby Action. Management believes that the likelihood of an adverse
decision from the sole remaining action is unlikely; however, the
litigation could result in substantial costs and a diversion of
management's resources and attention, which could harm our business
and the value of our common stock."
NeuBase Therapeutics, Inc., a biotechnology company, engages in the
development of various antisense therapies to address genetic
diseases in the United States. The company offers gene silencing
therapies, including the proprietary PATrOL platform, a
peptide-nucleic acid antisense oligonucleotide for genetic diseases
caused by mutant proteins, including Huntington's disease and
myotonic dystrophy, as well as various other genetic disorders.
NeuBase Therapeutics, Inc. is headquartered in Pittsburgh,
Pennsylvania.
On July 12, 2019, NeuBase completed the merger deal with Ohr
Pharmaceutical.
NEW YORK: Dismissal of Claim for Damages in Singh Suit Affirmed
---------------------------------------------------------------
In the case, DALER SINGH, ETC., ET AL., Appellants-Respondents v.
CITY OF NEW YORK, ET AL., Respondents-Appellants, Case No.
2017-12988, Index No. 701402/17 (N.Y. App. Div.), the Appellate
Division of the Supreme Court of New York, Second Department, has
entered decision and order:
(i) affirming the order of Judge Kevin J. Kerrigan of the
Supreme Court, Queens County, dated Sept. 21, 2017,
granting the branch of the Defendants' motion to dismiss
the first cause of action; and
(ii) reversed the order denying those branches of the
Defendants' motion to dismiss the third cause of action
and so much of the fifth cause of action.
The first cause of action sought to recover damages for violations
of General Business Law Section 349. The third cause of action
sought to recover damages for breach of the implied covenant of
good faith and fair dealing. The fifth cause of action sought
rescission of contracts based upon breach of the implied covenant
of good faith and fair dealing.
The Plaintiffs in the putative class action seek to recover
monetary damages, and/or to rescind their contracts to purchase New
York City taxi cab medallions, due to the alleged actions of the
Defendants, the City of New York and the New York City Taxi and
Limousine Commission ("TLC"), which purportedly caused a dramatic
loss in value of the medallions after the medallions had been
purchased at auction. The Plaintiffs allege, inter alia, that
prior to holding three taxi cab medallion auctions in late 2013 and
early 2014, the TLC intentionally overstated the value of taxi
medallions and concealed the fact that the value of those
medallions had already begun to decline due to factors known to the
TLC but not disclosed to the Plaintiffs, and that after the
auctions, the TLC through its actions and inaction, significantly
undermined the value of the medallions it had just sold to the
Plaintiffs.
The TLC's alleged wrongful action and inaction after the auctions
included permitting affiliates of Uber Technologies, Inc., to
acquire licenses to operate black car services despite the
affiliates' failure to satisfy the black car licensing
requirements, and permitting affiliates of Uber to accept street
hails in direct and illegal competition with medallion taxis.
The Defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss
the complaint, and the Plaintiffs opposed the motion. In an order
dated Sept. 21, 2017, the Supreme Court, inter alia, granted that
branch of the Defendants' motion which was to dismiss the first
cause of action, which sought to recover damages for violations of
General Business Law Section 349. The Plaintiffs appeal from that
portion of the order.
The Supreme Court also denied those branches of the Defendants'
motion which were to dismiss the third cause of action, which
sought to recover damages for breach of the implied covenant of
good faith and fair dealing, and so much of the fifth cause of
action as sought rescission of the contracts based upon breach of
the implied covenant of good faith and fair dealing, on the ground
that the Plaintiffs failed to state a cause of action. The
Defendants appeal from these portions of the order.
The Appellate Court agrees with the Supreme Court's determination
that the Plaintiffs' first cause of action, which sought to recover
damages for violations of General Business Law Section 349, was a
claim sounding in tort, and therefore was subject to the
requirements of General Municipal Law Section 50-e, as a cause of
action sounding in fraud. Accordingly, the Appellate Court agrees
with the Supreme Court's determination granting that branch of the
Defendants' motion which was to dismiss the first cause of action
due to the Plaintiffs' failure to serve a notice of claim within 90
days after the claim arose.
The Appellate Court disagrees, however, with the Supreme Court's
determination to deny those branches of the Defendants' motion
which were to dismiss the third cause of action and so much of the
fifth cause of action. The Appellate Court finds that the
Plaintiffs concede that the official bid form used by the
Plaintiffs included an acknowledgment that the City had not made
any representations or warranties as to the present or future value
of a taxicab medallion, the operation of a taxicab as permitted
thereby, or as to the present or future application or provisions
of the rules of the NYC Taxi & Limousine Commission or applicable
law, other than a warranty of clear title to such medallion.
Based upon that language, no reasonable person in the position of
the Plaintiffs would believe that the Defendants would act or
refrain from acting in any manner in order to guarantee the value
of their medallions, since it would be inconsistent with the terms
of the official bid form. Accordingly, since the evidence
submitted by the Defendants demonstrated that the Plaintiffs'
allegations regarding breach of the implied covenant of good faith
and fair dealing were not facts at all, the Supreme Court should
have granted those branches of the Defendants' motion which were to
dismiss the third cause of action and so much of the fifth cause of
action.
In light of its determinations, the Appellate Court need not
address the parties' remaining contentions.
A full-text copy of the Court's Dec. 30, 2020 Decision & Order is
available at https://tinyurl.com/y3rofong from Leagle.com.
Wolf Haldenstein Adler Freeman & Herz, LLP, in New York City
(Benjamin Y. Kaufman -- kaufman@whafh.com -- Gregory M. Nespole --
GMN@whath.com -- Correy A. Kamin -- kamin@whafh.com -- and Law
Offices of Daniel L. Ackman of counsel), for
appellants-respondents.
Zachary W. Carter, Corporation Counsel, in New York City (Richard
Dearing and Eric Lee of counsel), for Respondents-Appellants.
NISSAN MOTOR: Ghosn & Kelly Lose Bids to Dismiss Jackson Class Suit
-------------------------------------------------------------------
In the case, JACKSON COUNTY EMPLOYEES' RETIREMENT SYSTEM, et al.,
Plaintiffs v. CARLOS GHOSN, et al., Defendants, Case No.
3:18-cv-01368 (M.D. Tenn.), Judge William L. Campbell, Jr., of the
U.S. District Court for the Middle District of Tennessee, Nashville
Division, denied the Motions to Dismiss filed by Defendants Carlos
Ghosn and Greg Kelly.
The Court also granted in part and denied in part the Motion to
Dismiss filed by Defendants Nissan Motor Co., Ltd., Hiroto Saikawa,
Hiroshi Karube, and Joseph G. Peter.
Lead Plaintiff Jackson County and Named Plaintiff Providence
Employees Retirement System, filed the class action on behalf of
purchasers of Nissan securities between May 11, 2014 and Nov. 16,
2018, against Nissan, Ghosn, former Chairman of the Board of
Directors, Representative Director, CEO, and President; Kelly,
former Representative Director and Executive VP; Saikawa, former
Representative Director and CEO; Karube, current CEO; and Peter,
former CFO, alleging violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, Securities and Exchange Commission
(SEC) Rule 10b-5, and the Financial Instruments and Exchange Act of
Japan ("FIEA").
The Amended Complaint, filed on May 6, 2019, alleges that, since at
least 2010, Nissan's then-CEO and Chairman, Ghosn, engaged in an
unlawful scheme to increase his own pay by approving billions of
yen in deferred compensation, which Nissan would be obligated to
pay him at later dates. The Defendants allegedly made false and
misleading statements regarding executive compensation in Nissan's
annual financial reports, resulting in an understatement of
Nissan's compensation expenses and a concomitant overstatement of
Nissan's operating income throughout the Class Period.
At the same time, the Defendants also made false and misleading
statements regarding Nissan's corporate governance and internal
controls, compliance with applicable laws and regulations, and
commitment to ethical conduct in Nissan's other mandatory
disclosure documents. Nissan's annual financial reports and other
mandatory disclosure documents containing the alleged misstatements
were translated into English and published on Nissan's investor
relations website throughout the Class Period.
On Aug. 5, 2019, Ghosn, Saikawa, and Karube moved to dismiss the
Exchange Act claims and Nissan moved to dismiss the FIEA claim
pursuant to Rule 12(b)(2) for lack of personal jurisdiction.
Nissan also moved to dismiss the FIEA claim on the basis of forum
non conveniens. Additionally, all the Defendants moved to dismiss
the Exchange Act claims pursuant to Rule 12(b)(6) for failure to
state a claim.
Judge Campbell denied the Motions to Dismiss filed by Defendants
Ghosn and Kelly. As to Ghosn, the Judge finds that while some
burden is placed on Ghosn in having to defend claims in the case,
the interest of the United States in the enforcement of federal
securities laws and the Plaintiffs' interest in obtaining relief
make exercise of jurisdiction over Ghosn reasonable. The Amended
Complaint adequately alleges Ghosn's ultimate authority over
Nissan's press releases, Annual Reports, and Sustainability
Reports, including control over the alleged misstatements' content
and whether and how to communicate them.
As to Kelly, viewing the facts alleged in the Amended Complaint in
the light most favorable to Jackson County, the Judge finds that
the Amended Complaint sufficiently alleges that Kelly possessed
ultimate authority over the alleged misstatements in Nissan's
Annual Reports, including control over their "content and whether
and how to communicate it." Kelly was a "maker" of the alleged
misrepresentations in Nissan's Annual Reports.
The Judge granted in part and denied in part the Motion to Dismiss
filed by Defendants Nissan, Saikawa, Karube, and Peter. Among
other things, he holds that when the factual allegations are
considered collectively, there is a strong inference that the
Defendants acted with at least reckless disregard for the
misleading nature of their statements that is at least as
compelling as any innocent inference.
The Judge further finds that (i) the allegations give rise to a
"cogent and compelling" inference that the Defendants acted with at
least deliberate recklessness that "a reasonable person" would deem
at least as compelling as any opposing inference one could draw
from the facts alleged; (ii) the allegations sufficiently plead
that Saikawa and Peter were "control persons" for purposes of
Jackson County's "control-person" claims; (iii) Saikawa's claimed
ignorance supports Jackson County's allegation of recklessness
given his alleged duties to monitor the specific conduct at issue;
(iv) a reasonable juror could conclude that the Defendants'
statements concerning Nissan's corporate governance and internal
controls, legal compliance, and ethics, were material
misrepresentation; and (iv) the private-interest factors weigh in
favor of retaining the action in the Court, and the public-interest
factors weigh in favor of dismissal for forum non conveniens.
A full-text copy of the Court's Dec. 29, 2020 Memorandum is
available at https://tinyurl.com/ycwffska from Leagle.com.
NORDSON CORP: Settlement Reached in Ortiz Suit
----------------------------------------------
Nordson Corporation said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on December 18, 2020, for
the fiscal year ended October 31, 2020, that the parties in a class
action lawsuit initiated by a former employee named Ortiz have
agreed to settle the dispute, subject to the execution of a written
settlement agreement and court approval.
On February 22, 2019, a former employee, Mr. Ortiz, filed a
purported class action lawsuit in the San Diego County Superior
Court, California, against Nordson Asymtek, Inc. and Nordson
Corporation, alleging various violations of the California Labor
Code.
Plaintiff seeks, among other things, an unspecified amount for
unpaid wages, actual, consequential, and incidental losses,
penalties, and attorneys' fees and costs.
Following mediation in June 2020, the parties agreed to settle the
lawsuit, subject to the execution of a written settlement agreement
and court approval.
Nordson said, "If the court approves of the settlement on the
agreed upon terms, the class action lawsuit will be resolved.
Management believes, based on currently available information, that
the ultimate outcome of the proceeding described above will not
have a material adverse effect on the Company's financial condition
or results of operations."
No further updates were provided in the Company's SEC report.
Nordson Corporation engineers, manufactures, and markets products
and systems to dispense, apply, and control adhesives, coatings,
polymers, sealants, biomaterials, and other fluids worldwide.
Nordson Corporation was founded in 1935 and is headquartered in
Westlake, Ohio.
NORTHEASTERN UNIVERSITY: Court Narrows Claims in Bahrani Class Suit
-------------------------------------------------------------------
In the case, MANISHA BAHRANI and DUNCAN LEGGET, individually and on
behalf of all others similarly situated v. NORTHEASTERN UNIVERSITY,
Case No. 20-10946-RGS (D. Mass.), Judge Richard D. Stearns of the
U.S. District Court for the District of Massachusetts granted in
part and denied in part Northeastern's motion to dismiss all claims
in the Second Amended Class Action Complaint.
Plaintiffs Bahrani and Legget filed the putative class action
against the Defendant. By way of their SAC, the Plaintiffs allege
that Northeastern breached an express or implied contract with its
students (Counts I and II), or alternatively unjustly enriched
itself at its students' expense (Count III), when it retained
tuition and fees collected for the Spring semester of 2020 despite
ceasing in-person instruction and closing its on-campus facilities
and resources in March of 2020.
Northeastern is one of the largest private urban universities in
North America. It offers undergraduate majors in approximately 65
departments and graduate degrees in approximately 125 programs.
The Plaintiffs are students who enrolled in classes at Northeastern
during the Spring semester of 2020.
According to the SAC, the Plaintiffs entered into a contractual
agreement with Northeastern to pay tuition and fees for the Spring
semester of 2020 in exchange for on-campus, in-person educational
services and access to oncampus facilities, events, and services.
They purport to derive the terms of this contract from
representations in the Student Financial Responsibility Agreement
("SFRA"), which Northeastern required each student to execute prior
to the start of the semester; students' billing statements and
invoices; and Northeastern's course registration materials.
The Plaintiffs allege that they fulfilled their obligations under
the contract when they "paid all required tuition and fees" for the
Spring semester of 2020. They enrolled in classroom courses, and
for the first half of the semester, Northeastern met its obligation
to provide in-person instruction. On March 12, 2020, however,
Northeastern cancelled all in-person classes for its campuses and
suspended access to on-campus resources, including gyms and
libraries informed students. Northeastern has not provided any
in-person classes or given students access to the university's
on-campus facilities and resources since that date.
After Northeastern refused to offer its students a refund for
tuition or semester fees, the Plaintiffs filed the lawsuit. They
assert three claims on behalf of "all persons in the United States
who paid Northeastern University tuition and/or fees for in-person
education and/or access to campus facilities, in-person events, and
in-person services for the academic term including March 2020 or
for any academic term thereafter during which Northeastern failed
to provide in person educational services"; breach of an express
contract (Count I); breach of an implied contract (Count II); and
unjust enrichment (Count III).
Northeastern moves to dismiss all claims pursuant to Fed. R. Civ.
P. 12(b)(6). Northeastern argues that the Plaintiffs have failed
to state a claim because they have not sufficiently identified the
basis for any contractual right to in-person instruction.
The Plaintiffs respond that the contractual right to in-person
instruction derives from three sources: (1) representations in
billing statements and invoices listing the tuition and fees
charged each semester; (2) representations in the SFRA tying the
payment of tuition to registration and the receipt of "educational
services"; and (3) representations in course registration materials
indicating that the educational services the Plaintiffs had
contracted to receive would include traditional, face-to-face
instruction in physical locations on campus.
First, Judge Stearns denied the motion to dismiss the portion of
Counts I and II premised on payment of tuition. Drawing all
inferences in the Plaintiffs' favor, he cannot, as a matter of law,
say that no student who read these statements could have reasonably
expected that executing the SFRA, paying the tuition charged for
the Spring semester of 2020, and registering for on-campus courses
would entitle them to in-person instruction.
Second, the Judge allowed the motion to dismiss the portions of
Counts I and II premised on payment of the student activity fee,
the student center fee, or the undergraduate student fee. He finds
that because students pay the student activity fee, the student
center fee, and the undergraduate student fee to "support" certain
facilities during terms for which those students are enrolled in
classes, and not to gain admission to any on-campus facility or
access to a given resource (or even to support the operation of any
specific service at an on-campus facility), the Plaintiffs have not
stated a claim for breach of contract with respect to these fees.
Third, the Judge declined to dismiss the portion of Counts I and II
premised on payment of the campus recreation fee. Because the
Plaintiffs allege that they actually and constructively lost the
option to attend home athletic games or use fitness facilities
after March 12, 2020, they have stated a plausible claim for breach
of contract with respect to the campus recreation fee.
Finally, the Judge declined to dismiss Count III. Northeastern
disputes the existence of any contract between the parties
requiring in-person instruction or access to on-campus facilities
and resources. And the Plaintiffs plead unjust enrichment only to
the extent the parties do not have a valid contract on these
grounds. It would thus be inappropriate for the Court to require
the Plaintiffs to make an exclusive election of a contractual
remedy at this early stage of the litigation.
For the foregoing reasons, Judge Stearns allowed in part and denied
in part. Specifically, he dismissed the potions of Counts I, II,
and III premised on the failure to provide access to on-campus
facilities and resources in exchange for payment of the student
activity fee, the student center fee, or the undergraduate student
fee. The portions of Count I, II, and III premised on the failure
to provide in-person instruction in exchange for the payment of
tuition and the failure to provide access to on-campus facilities
and resources in exchange for the payment of the campus recreation
fee, however, survive the Defendant's motions.
A full-text copy of the Court's Dec. 30, 2020 Memorandum is
available at https://tinyurl.com/yyhy8urg from Leagle.com.
OFFSPRING BEAUTY CO: Bunting Asserts Breach of ADA
--------------------------------------------------
Offspring Beauty Co. is facing a class action lawsuit filed
pursuant to the Americans with Disabilities Act. The case is styled
as Rasheta Bunting, individually and as the representative of a
class of similarly situated persons, Plaintiff v. Offspring Beauty
Co. doing business as: Versed, Defendant, Case No. 1:20-cv-06306
(E.D. N.Y., Dec. 29, 2020).
Offspring Beauty Co. was formed by Clique Brands, the owner of
digital publications Who What Wear and Byrdie, as its new beauty
line with its own e-commerce site.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Tel: (917) 373-9128
Email: shakedlawgroup@gmail.com
OLAM SPICES: Court Wants More Settlement Briefing in Beltran Suit
-----------------------------------------------------------------
In the case, THOMAS BELTRAN, et al., Plaintiffs v. OLAM SPICES AND
VEGETABLES, INC., Defendant, Case No. 1:18-cv-01676-NONE-SAB (E.D.
Cal.), Judge Dale A. Drozd of the U.S. District Court for the
Eastern District of California has entered an order directing the
filing of supplemental briefing and documentation on motion for
preliminary approval of class and collective action settlement.
On July 7, 2015, Plaintiff Beltran commenced a class action lawsuit
against the Defendant, erroneously sued as Olam Spices in the
Alameda County Superior Court, Case No. RG15776976. On Sept. 9,
2015, upon a motion of the Defendant, the Beltran Action was
transferred to the Fresno County Superior Court, Case No.
15CECG02993. Plaintiff Mario Martinez was added as a named
Plaintiff to that action.
On June 1, 2017, the Plaintiffs in the Beltran Action filed a
motion for preliminary approval of class action settlement, which
was denied without prejudice by the state court. On April 11,
2018, the parties in the Beltran Action added Mario Claudia Obeso
Cota, Mariana Ramirez, Alexander Solorio, and Juan Rivera as
Plaintiffs. They also added claims under the Fair Labor Standards
Act.
On June 27, 2018, the Plaintiffs filed a renewed motion for
preliminary approval of class action settlement. Contrary to the
parties' assertion that the renewed motion for preliminary approval
was denied, it appears that the hearing on that motion was
continued, and the state court allowed the parties to submit
supplemental briefing.
However, before the Fresno County Superior Court ruled upon the
Plaintiffs' motion for preliminary approval of class settlement,
the Defendant removed the action to the federal court on Dec. 10,
2018. On April 13, 2020, an unopposed motion for preliminary
approval of a class and collective action settlement was filed in
the case and the motion was referred to a U.S. Magistrate Judge for
issuance of findings and recommendations.
On June 2, 2020, the assigned magistrate judge entered findings and
recommendations, noting numerous deficiencies with the motion and
concluding that the proposed settlement was not fair and
reasonable. The findings and recommendations recommended denying
the motion for approval of the class and collective action
settlement. Those findings and recommendations were served on the
parties and contained notice that any objections thereto were to be
filed within 21 days from the date of service.
On June 23, 2020, the Plaintiffs filed objections to the findings
and recommendations.
First, the parties object to the magistrate judge's finding of an
inference of a conflict of interest between the Plaintiffs and
their class counsel. Specifically, the magistrate judge found that
an inference of such a conflict of interest had been raised for the
following reasons: 1) the Plaintiffs' failure to address how they
calculated the potential value of their claims at $81,039,543.12
and the discounted value at $3,994,421.73, which was merely 4.9% of
the overall potential value of the claims; 2) the Plaintiffs'
failure to address whether liquidated damages were included in the
FLSA damage calculation and the applicable statute of limitations
period, which could affect the overall valuation of the Plaintiffs'
claims; 3) the Plaintiffs' counsel's unjustified request for 35%
(of the overall $4.5 million settlement) for attorneys' fees,
exceeding the Ninth Circuit's 25% benchmark; 4) excessive class
representative incentive fees; and 5) the existence of a smooth
sailing provision in the proposed settlement agreement.
Given that the parties have addressed some of the other issues that
led the findings and recommendations to find an inference of a
conflict of interest, Judge Drozd is not yet persuaded that the
proposed incentive payments are so disproportionate that they
cannot be approved. However, he is also not yet satisfied that the
parties have sufficiently supported the proposed incentive payments
with respect to certain named Plaintiffs.
The parties are directed to file supplemental briefing providing
more detailed support for (i) Plaintiff Beltran's requested
incentive payment of $7,500, (ii) Plaintiff Martinez's requested
incentive payment of $7,500, and (iii) Plaintiff Rivera's requested
incentive payment of $3,500. The Plaintiffs are directed to file
supplemental briefing justifying the above-benchmark attorneys'
fees request at the preliminary approval stage.
Second, the findings and recommendations also found that the
parties had failed to address whether there is a bona fide dispute
over the FLSA claims. The parties have objected to the findings
and recommendations in that regard on the ground that a bona fide
dispute exists as to the issue of liability, the availability of
liquidated damages when an employer acts in good faith, whether the
statute of limitations period should be two or three years with
respect to the Plaintiffs' FLSA claim, and whether the de minimus
rule applies to unrecorded time.
While he agrees with the pending findings and recommendations that
the parties initially failed to address whether there was a bona
fide dispute with respect to the FLSA claims in the motion for
preliminary approval of class action settlement, the Judge has
reviewed the additional information provided in the objections and
concludes that a bona fide dispute exists in the case. The
parties' objection in that regard is sustained.
Third, the findings and recommendations concluded that the parties'
proposed FLSA opt-in procedure, in which FLSA members could merely
opt-in by signing the back of their settlement checks, did not
comply with FLSA's notice and consent requirements. Given that the
putative FLSA collective members will receive the notice after
preliminary approval, it should alleviate the magistrate judge's
concern as to whether sufficient notice is given before the final
approval hearing.
The Judge then holds that the proposed Notice explains to the
potential FLSA collective members in detail exactly what their
rights are regarding opt-in and opt-out in connection with the FLSA
settlement and clearly distinguishes between that procedure and the
Rule 23 settlement "opt-out" process. He required, however, that
the Notice be modified to explicitly make it even more clear that
any person who is potentially part of both the FLSA collective and
the Rule 23 class may receive multiple checks. The parties will
revise the Notice accordingly and submit it (in redlined form)
along with the other supplemental briefing called for in the
Order.
Fourth, the findings and recommendations noted several areas for
correction on the settlement notice, including the case number and
assigned judge. The parties argue that the minor revisions can be
easily corrected through supplemental briefing and revised notices.
The Judge notes the parties' intent to correct the notices and
directs them to do so.
Fifth, the findings and recommendations correctly found that the
parties failed to demonstrate whether notice of the settlement was
provided to the California Labor and Workforce Development Agency.
However, the Plaintiffs' counsel Aiwazian has now stated in his
sworn declaration that the parties notified the LWDA of the
settlement. The Judge therefore finds that the parties have
addressed the concern noted in the findings and recommendations
regarding the required notice to the LWDA.
Sixth, the findings and recommendations further inquired about how
excess funds apportioned to the FLSA settlement if not all putative
members opt-in to the collective action would be re-distributed.
Based on his review of the settlement agreement, the Judge
interprets that such unused FLSA funds will be distributed to the
United Way. If his interpretation of the provision of the proposed
settlement is incorrect in any way, the parties are directed to
file supplemental briefing clarifying their position in that
regard.
Seventh, the parties object to the finding that retaining
continuing jurisdiction over the settlement post-judgment is
inappropriate absent a specific showing that it is necessary.
However, they contend that they do not anticipate any post-judgment
issues and therefore have agreed to remove the provision.
Therefore, the Judge need not address the parties' additional
arguments and denies their objection in that regard as moot.
Finally, the findings and recommendations concluded that the class
or collective action Plaintiffs failed to meet their burden
demonstrating commonality based merely upon conclusory allegations
that a uniform policy or procedure existed. The parties object to
the findings and recommendations in that regard on the grounds that
they erroneously conclude there are "only conclusory allegations of
a Uniform Policy or Procedure for purposes of certification," and
identify the class representatives' declarations to support the
finding of uniform practices and policies.
The Judge finds that the objections do not address the concern
expressed in the findings and recommendations regarding whether the
Plaintiffs' allegation that the Defendant failed to reimburse the
Plaintiffs for purchasing dress code approved-clothing was an
individualized or site-specific issue, especially where the record
indicates that defendant had a policy of offering equipment to
employees and providing employees with the option of purchasing
their own equipment. Therefore, the parties are directed to file
supplemental briefing and documentation addressing the commonality
of the claim involving the Defendant's alleged failure to reimburse
the Plaintiffs for their work equipment.
For the reasons he explained, Judge Drozd ordered the parties to
file supplemental briefing and documentation addressing the
following issues raised by the pending motion for preliminary
approval within 30 days from the date of the Order: (i) the
incentive payments for class representative plaintiffs Beltran,
Martinez, and Rivera; (ii) the above-benchmark attorneys' fees;
(iii) revised FLSA and Class Settlement notices indicating that
putative class and collective members may receive multiple checks,
and a redlined copy of the revised FLSA and Class Settlement
notices; (iv) evidence supporting commonality of the Plaintiffs'
claims; and (v) any other issues identified.
A full-text copy of the Court's Dec. 29, 2020 Order is available at
https://tinyurl.com/ydywquxu from Leagle.com.
PERFECT FORMULA: Bunting Alleges Violation under ADA
----------------------------------------------------
Perfect Formula LLC is facing a class action lawsuit filed pursuant
to the Americans with Disabilities Act. The case is styled as
Rasheta Bunting, individually and as the representative of a class
of similarly situated persons, Plaintiff v. Perfect Formula LLC,
Defendant, Case No. 1:20-cv-06295 (E.D. N.Y., Dec. 29, 2020).
Perfect Formula LLC is an Online Retailer in Carlstadt, NJ.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Tel: (917) 373-9128
Email: shakedlawgroup@gmail.com
PROGRESSIVE DIRECT: Suit to Add Mackay, Steidl as Class Reps.
-------------------------------------------------------------
In the class action lawsuit captioned as AMEENJOHN STANIKZY, v.
PROGRESSIVE DIRECT INSURANCE COMPANY, Case No. 2:20-cv-00118-BJR
(W.D. Wash.), the Hon. Judge Barbara Jacobs Rothstein entered an
order granting the Plaintiff's unopposed motion to amend motion to
certify class and add Jon R. Mackay and Niklas Steidl class
representatives.
The Court has reviewed the record and file, and all pleadings filed
in support of Plaintiff's unopposed motion; and granting
Plaintiff's motion.
Both Mr. Mackay and Mr. Steidle fall within the as-plead class
definition as they both had first party total loss claims involving
their own vehicles, and received from Progressive a total loss
valuation from Mitchell based upon the value of comparable vehicles
from which were taken deductions for PSA. As such, both are members
of the proposed Class.
The first is Jon R. Mackay (Claim Number: 20-7425558). On September
8, 2020, Mr. Mackay's 2017 Ford Explorer Platinum (Vin No.
1FM5K8HT5HGD42846) was damaged and then determined by Progressive
to a total loss. Progressive paid Mr. Mackay's loss under his first
party coverage, based upon a Mitchell Report, which valued the
vehicle's market value as $36,694.58 after the deduction of
Projected Sold Adjustments (PSA) of $1,500, $1,618, 1,481, 1,407,
1,382, and 1,382, from the comparables, resulting in a total loss
payment to Mr. Mackay which was $1,461.66 lower than absent the PSA
deduction.
The second is Niklas Steidl (Claim No. 20-4950424-01). On August
19, 2020 Mr. Steidl's 2017 Mazda CX-5 (Vin No. JM3KFBDL0H0149986)
was damaged and then determined by Progressive to be a total loss.
Progressive paid Mr. Steidl's loss under his first party coverage
based upon a Mitchell Report, which valued the vehicle's market
value as $25,427.53 after the deduction of PSAs from each of the 20
comps, resulting (when averaged) in the valuation being $902.20
lower due to having taken a PSA deduction.
A copy of the Court's order dated Jan. 4, 2020 is available from
PacerMonitor.com at https://bit.ly/3pPe3c0 at no extra charge.[CC]
The Plaintiff is represented by:
Scott P. Nealey, Esq.
LAW OFFICE OF SCOTT P. NEALEY
71 Stevenson Street, Suite 400,
San Francisco, CA 94105
Telephone: (415) 231-5311
Facsimile: (415) 231-5313
E-mail: snealey@nealeylaw.com
QUANTUMSCAPE CORP: Jakubiak Sues Over Denied Exercise of Warrants
------------------------------------------------------------------
Jeffrey Jakubiak, on behalf of himself and all others similarly
situated, Plaintiff, v. QuantumScape Corporation (successor in
interest to Kensington Capital Acquisition Corp.) and Continental
Stock Transfer & Trust Company, Defendants, Case No. 656963/2020
(N.Y. Sup., December 11, 2020), alleges that the Defendants have
breached a warrant agreement by failing to allow the exercise of
the warrants issued by QuantumScape beginning 30 days after the
consummation of its business combination on November 25, 2020.
The complaint seeks an injunction requiring Defendants to allow the
exercise of the warrants beginning on December 25, 2020, and
requiring them to take all actions required by the warrant
agreement for the registration of the shares to be issued in
connection with the exercise of the warrants. The Plaintiff also
seeks damages resulting from Defendants' failure to allow exercise
of the warrants 30 days after the consummation of the business
combination on November 25, 2020, as well as reasonable attorneys'
fees and costs and such other and further relief resulting from
breach of contract.
Kensington Capital entered into a warrant agreement with
Continental which established the form of the warrants and the
rights of the warrant holders under New York law.
Kensington Capital entered into a business combination agreement
with QuantumScape Corporation, a privately held Delaware
corporation that is developing a lithium metal solid-state battery
technology for use in electric vehicles. QuantumScape was to be
merged into Kensington Capital, with all of its shares exchanged
for shares of Kensington Capital, and the name of Kensington
Capital changed to QuantumScape. The proxy statement and prospectus
of the merger addressed that each Kensington Warrant entitled the
registered holder to purchase one share of Kensington Class A
Common Stock at a price of $11.50 per share, subject to adjustment,
at any time commencing 30 days after the consummation of the
initial business combination. Jakubiak, as trustee for the Jeffrey
Jakubiak Revocable Living Trust, purchased, and continues to hold
12,000 warrants.
When Jakubiak indicated that he had purchased warrants, he was
informed that QuantumScape did not intend to allow the warrants to
be exercised 30 days after the closing of the merger on November
25, 2020. Warrants and QuantumScape stock for which they may be
exercised may decline substantially between December 25, 2020 and
June 30, 2020. QuantumScape is set to incur losses until it begins
significant production of its batteries in 2024. Plaintiff could
suffer losses or lost profits if they are not permitted to exercise
the warrants beginning on December 25, 2020, asserts the complaint.
[BN]
Plaintiff is represented by:
Carol S. Shahmoon, Esq.
Gregory E. Keller, Esq.
SHAHMOON KELLER PLLC
One Great Neck Road, Suite 7
Great Neck, NY 11021
Tel: (646) 517-4399
Fax: (646) 880-9359
Email: cshahmoon@shahmoonkeller.com
gkeller@shahmoonkeller.com
SAFE AND FAIR FOOD: Martinez Asserts Breach of ADA
--------------------------------------------------
The Safe and Fair Food Company LLC is facing a class action lawsuit
filed pursuant to the Americans with Disabilities Act. The case is
styled as Pedro Martinez, individually and as the representative of
a class of similarly situated persons, Plaintiff v. The Safe and
Fair Food Company LLC, Defendant, Case No. 1:20-cv-06299 (E.D.
N.Y., Dec. 29, 2020).
The Safe Fair Food Company LLC is located in Chicago, IL, United
States and is part of the Snack Foods Manufacturing Industry.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
Shaked Law Group, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Tel: (917) 373-9128
Email: shakedlawgroup@gmail.com
SIFCO INDUSTRIES: Discloses Dispatch of Class Action Notices
------------------------------------------------------------
SIFCO Industries, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on December 23, 2020, for the
quarterly period ended September 30, 2020, that class action
notices were sent at the end of September.
The Company is a defendant in a purported class action lawsuit
filed in the Superior Court of California, County of Orange, which
was filed in August 2017, arising from employee wage-and-hour
claims under California law for alleged meal period, rest break,
hourly and overtime wage calculation, timely wage payment and
necessary expenditure indemnification violations; failure to
maintain required wage records and furnish accurate wage
statements; and unfair competition.
A settlement has been reached and the Company received preliminary
court approval on July 13, 2020, following a brief delay caused by
COVID-19 closures and restrictions.
Class action notices were sent at the end of September.
The Company recorded an additional $65 in fiscal 2020 as part of
the estimated loss and had previously recorded an estimated loss of
$250 as of September 30, 2019.
SIFCO Industries, Inc. produces and sells forgings and machined
components primarily for the aerospace and energy markets in the
United States and Europe. It was founded in 1916 and is
headquartered in Cleveland, Ohio.
SOL MELIA: Puerto Rico Court Refuses to Remand Aviles Class Suit
----------------------------------------------------------------
In the case, ADRIANA AVILES, et al. Plaintiffs v. SOL MELIA V.C.
PUERTO RICO CORP., et al. Defendants, Case No. 20-1146 (GAG)
(D.P.R.), Judge Gustavo A. Gelpi of the U.S. District Court for the
District of Puerto Rico denied the Plaintiffs' motions for remand.
Plaintiffs Aviles, Isaac Serrano-Muniz, James A. Harnar, John A.
Napoli-Romero, Jay Grevers, Luis W. Prosper, and Dr. Goar Blanco,
on behalf of themselves and the putative class, filed suit against
Defendants Sol Melia PR, MeliaHotels International, S.A., and Coco
Condominium 1, LCC, before the Puerto Rico Court of First Instance
seeking redress for injuries that principally occurred outside of
Puerto Rico. The Plaintiffs plead having lost access to their
timeshare membership and benefits, including the Melia Brand, Hotel
Melia in Puerto Rico, and all clubs and affiliates of Melia
International around the world.
The Defendants removed the Plaintiffs' complaint to the Court.
Pending before the Court are the Plaintiffs' motions for remand.
After the conclusion of jurisdictional discovery, the Plaintiffs
filed a third motion to remand arguing that, according to the
timeshare contracts reviewed, more than two-thirds of the proposed
class are residents of the Commonwealth of Puerto Rico and hence,
satisfy said requirement of the Class Action Fairness Act "local
controversy" exception.
In opposition, the Defendants posit that: (1) "residency" does not
equate to "citizenship" for jurisdictional purposes; (2) the "years
old" addresses used by the Plaintiffs fail to accurately determine
"citizenship," and (3) even if these addresses were to be valid,
the percentage calculations at the time of removal (March 2020), as
proffered by the Defendants, fall below the two-thirds
requirements. With leave of Court, a reply and sur-reply were
filed thereafter.
Having reviewed the parties' submissions and applicable law, Judge
Gelpi finds that the Defendants have successfully met the burden
for removal. By the same token, the Plaintiffs have failed to
establish that neither the "local controversy" nor the
"discretionary" exception applies in the case. Thus, the Court has
subject-matter jurisdiction over the matter.
For the reasons stated, Judge Gelpi denied the pending Motion to
Remand to State Court Urgent Motion to Remand, the Motion
Requesting Discretionary Remand, and the Motion to Remand to State
Court for Lack of Jurisdiction under CAFA. He noted the pending
Joint Motion to Stay Term to File Answer to Amend Complaint or
Otherwise Plead and Joint Motion In Compliance as to 101 Order on
Informative Motion. As a result, the Defendants have 30 days to
file an answer to the Plaintiffs' Amended Complaint or otherwise
plead.
A full-text copy of the Court's Dec. 30, 2020 Memorandum Order is
available at https://tinyurl.com/y33w6ndk from Leagle.com.
TAUBMAN CENTERS: Facing Simon Property Merger Related Suits
-----------------------------------------------------------
Taubman Centers, Inc. said in its Form 8-K filing with the U.S.
Securities and Exchange Commission filed on December 22, 2020, that
the company is facing two putative class action suits related to
its merger with Simon Property Group, Inc.
On November 14, 2020, Taubman Centers, Inc., a Michigan corporation
(TCO), The Taubman Realty Group Limited Partnership, a Delaware
limited partnership (the Taubman Operating Partnership and,
together with TCO, the Taubman Parties), Simon Property Group,
Inc., a Delaware corporation (Simon), Simon Property Group, L.P., a
Delaware limited partnership (the Simon Operating Partnership),
Silver Merger Sub 1, LLC, a Delaware limited liability company and
wholly-owned subsidiary of the Simon Operating Partnership (Merger
Sub 1), and Silver Merger Sub 2, LLC, a Delaware limited liability
company and wholly-owned subsidiary of Merger Sub 1 (Merger Sub 2
and, together with Simon, the Simon Operating Partnership and
Merger Sub 1, the Simon Parties), entered into an Amended and
Restated Agreement and Plan of Merger (the merger agreement),
amending and restating the Agreement and Plan of Merger by and
among the Taubman Parties and the Simon Parties, dated February 9,
2020 (the original merger agreement).
Pursuant to the merger agreement, subject to the satisfaction or
waiver of certain conditions, Merger Sub 2 will be merged with and
into the Taubman Operating Partnership and TCO will be merged with
and into Merger Sub 1 (the REIT Merger and, together with the
Partnership Merger, the Mergers).
In connection with the merger agreement, on December 4, 2020, TCO
filed a definitive proxy statement with the U.S. Securities and
Exchange Commission.
In connection with the original merger agreement and/or the merger
agreement and the transactions contemplated thereby, two purported
class action complaints are presently pending on behalf of TCO
shareholders against the Taubman Parties and Simon Parties (in the
case of one of the complaints) and members of TCO's board of
directors in the United States District Court for the District of
Delaware and the Circuit Court for the 6th Judicial Circuit,
Oakland County, of the State of Michigan.
The two complaints are captioned as follows: Post v. Taubman
Centers, Inc., et al., No. 1:20-cv-00685-UNA (D. Del.) and Elstein
v. Taubman Centers, Inc., et al., No. 2020-185008-CB (Oakland
County Cir. Ct.) and, together with the Post Action, the
Shareholder Actions).
The Post Action alleges that the defendants named therein violated
Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, as
amended, or were legally responsible for such alleged violations,
because the proxy statement filed by TCO on May 29, 2020 allegedly
omits or misstates certain material information.
The Elstein Action alleges that the defendants named therein
breached their fiduciary duties to the putative class and TCO under
Michigan law, including their duty to disclose all material facts
in the Proxy Statement.
The Elstein action additionally asserts derivative claims for
breach of fiduciary duty, including breach of a fiduciary
obligation to cause TCO to completely disclose all material facts
in the Proxy Statement so that plaintiff and TCO's other public
shareholders can make an informed decision whether to vote their
shares in favor of the merger.
The Shareholder Actions seek, among other things, injunctive relief
preventing the consummation of the Mergers, unspecified damages and
attorneys' fees. Similarly, earlier shareholder actions filed in
connection with the original merger agreement were voluntarily
dismissed.
TCO believes that no supplemental disclosures are required under
applicable law. However, TCO is making certain disclosures. TCO
denies that any of the defendants have committed or assisted others
in committing any violations of law. Nothing in the supplemental
disclosures shall be deemed an admission of the legal necessity or
materiality under applicable laws of any of the supplemental
disclosures.
A copy of the supplemental disclosure is available at
https://bit.ly/2MoHW4C.
Based in Bloomfield Hills, Mich., Taubman Centers, Inc. is a real
estate investment trust that acquires, develops, owns, and manages
23 urban and suburban regional shopping centers. The Company owns a
65% managing general partner's interest in The Taubman Realty Group
Limited Partnership, through which it conduct all of its
operations.
TELIGENT INC: Econazole Antitrust Litigation Underway
-----------------------------------------------------
Teligent, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on December 31, 2020, for the
quarterly period ended September 30, 2020, that the company
continues to defend antitrust litigation related to the pricing of
econazole nitrate pharmaceutical products.
To date, thirteen putative class action antitrust lawsuits have
been filed against the Company along with co-defendants, including
Taro Pharmaceuticals U.S.A., Inc. and Perrigo New York Inc.,
regarding the pricing of generic pharmaceuticals, including
econazole nitrate.
The class plaintiffs seek to represent nationwide or state classes
consisting of persons who directly purchased, indirectly purchased,
paid and/or reimbursed patients for the purchase of generic
pharmaceuticals from as early as July 1, 2009 until the time the
defendants' allegedly unlawful conduct ceased or will cease.
The class plaintiffs seek treble damages for alleged overcharges
during the alleged period of conspiracy, and certain of the class
plaintiffs also seek injunctive relief against the defendants.
The actions have been consolidated by the Judicial Panel on
Multidistrict Litigation to the U.S. District Court, Eastern
District of Pennsylvania for pre-trial proceedings as part of the
In re Generic Pharmaceuticals Pricing Antitrust Litigation matter.
On October 16, 2018 the court dismissed the class plaintiffs'
claims against the Company with leave to replead.
On December 21, 2018 the class plaintiffs filed amended complaints,
which the Company moved to dismiss on February 21, 2019. On
December 19, 2019 certain class plaintiffs filed a further
complaint that included additional claims against the Company based
on the Company's sales of fluocinolone acetonide.
On October 16, 2020 and October 21, 2020, class plaintiffs amended
or moved to amend their complaints to add additional allegations,
mooting the motion to dismiss.
Teligent, Inc., a specialty generic pharmaceutical company,
develops, manufactures, markets, and sells generic topical, branded
generic, and generic injectable pharmaceutical products in the
United States and Canada. The company was formerly known as IGI
Laboratories, Inc. and changed its name to Teligent, Inc. in
October 2015. Teligent, Inc. was founded in 1977 and is based in
Buena, New Jersey.
TELIGENT INC: Generic Drug Price-Fixing Suit Underway in Canada
---------------------------------------------------------------
Teligent, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on December 31, 2020, for the
quarterly period ended September 30, 2020, that the company and its
Canadian subsidiary, Teligent Canada, are defendants in a putative
class action suit related to alleged generic drug price-fixing.
on June 3, 2020, a putative class action lawsuit was filed in the
Federal Court of Canada against the Company and its Canadian
subsidiary, Teligent Canada, along with over fifty other
pharmaceutical defendant companies.
The Canadian lawsuit alleges that the generic drug manufacturer
defendants conspired to allocate the Canadian market and customers,
fix prices and maintain the supply of generic drugs in Canada to
artificially maintain market share and higher generic drug prices
in violation of Canada's Competition Act.
In terms of the Company and Teligent Canada, without limiting the
general allegation of a general conspiracy over the generic drug
market, the lawsuit specifically asserts allegations in relation to
econzaole dating back to September 2013 and continuing to the
present.
The representative individual plaintiff seeks to represent a class
comprised of all persons and entities in Canada who, from January
1, 2012 to the present, purchased generic drugs in the private
sector (i.e. purchases made by individuals out-of-pocket and by
individuals and businesses through private drug plans). The
plaintiff is alleging aggregate damages of CDN$2.75 billion for
harm caused to class members being charged increased prices as a
result of the alleged conspiracy.
The Canadian lawsuit is at a very early stage and the Company is
unable to form a judgment at this time as to whether an unfavorable
outcome is probable or remote or to provide an estimate of the
amount or range of potential loss.
The Company believes this lawsuit is without merit and it intends
to vigorously defend against the claim.
Teligent, Inc., a specialty generic pharmaceutical company,
develops, manufactures, markets, and sells generic topical, branded
generic, and generic injectable pharmaceutical products in the
United States and Canada. The company was formerly known as IGI
Laboratories, Inc. and changed its name to Teligent, Inc. in
October 2015. Teligent, Inc. was founded in 1977 and is based in
Buena, New Jersey.
UNITED STATES: Batista Files Suit v. DFPS Commissioner
------------------------------------------------------
A Request for application to Proceed in Forma Pauperis has been
filed in the class action lawsuit styled as Christina Batista,
individually and on behalf of all others similarly situated,
Plaintiff v. Jaime Masters, Commissioner of the Dept. of Family and
Protective Services, Defendant, Case No. 4:20-mc-03564 (S.D. Tex.,
Dec. 29, 2020).
Jaime Masters is the Commissioner of the Department of Family and
Protective Services (DFPS). She was appointed by Governor Greg
Abbott effective December 2, 2019, for a term set to expire
September 1, 2021.[BN]
The Plaintiff appears PRO SE.
VARSITY BRANDS: Parents of Cheer Athletes Slam Competition Monopoly
-------------------------------------------------------------------
Jessica Jones, Michelle Velotta and Christina Lorenzen,
individually and on behalf of all others similarly situated,
Plaintiffs, v. Varsity Brands, LLC, Varsity Spirit, LLC, Varsity
Spirit Fashion & Supplies, LLC, U.S. All Star Federation, Inc.,
Jeff Webb, Charlesbank Capital Partners LLC, and Bain Capital
Private Equity, Defendants, Case No. 20-cv-02892 (W.D. Tenn.,
December 10, 2020), seeks damages, injunctive relief, and
any and all other relief that is available pursuant to federal
antitrust laws.
Plaintiffs are parents of Competitive Cheer Athletes. They claim
that they have paid artificially-inflated prices directly to
Varsity for apparel and/or the opportunity to participate in
cheerleading competitions.
Varsity is allegedly involved in acquisitions that allowed it to
dominate the All-Star Cheerleading Competition Market, acquiring
competition rivals, allowing it to acquire, maintain and enhance
control over all three national championships, namely the
Cheerleading World Championships, The Summit and the U.S. Finals.
[BN]
Plaintiff is represented by:
Van Turner, Esq.
Katrice Feild, Esq.
BRUCE TURNER, PLLC
2650 Thousand Oaks Blvd., Suite 2325
Memphis, TN 38118
Telephone: (901) 290-6610
Facsimile: (901) 290-6611
Email: vturner@bruceturnerlaw.net
katrice@bruceturnerlaw.net
- and -
Joseph R. Saveri, Esq.
Steven N. Williams, Esq.
Kevin E. Rayhill, Esq.
Elissa A. Buchanan, Esq.
JOSEPH SAVERI LAW FIRM, INC.
601 California Street, Suite 1000
San Francisco, CA 94108
Telephone: (415) 500-6800
Facsimile: (415) 395-9940
Email: jsaveri@saverilawfirm.com
swilliams@saverilawfirm.com
krayhill@saverilawfirm.com
eabuchanan@saverilawfirm.com
- and -
Joseph R. Saveri, Esq.
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
Daniel J. Nordin
Ling S. Wang, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Facsimile: (612) 339-6622
Email: dgustafson@gustafsongluek.com
dhedlund@gustafsongluek.com
dnordin@gustafsongluek.com
lwang@gustafsongluek.com
- and -
Richard M. Paul III, Esq.
Sean R. Cooper, Esq.
PAUL LLP
601 Walnut, Suite 300
Kansas City, MO 64106
Telephone: (816) 984-8100
Email: rick@paulllp.com
sean@paulllp.com
WAVE PLASTIC SURGERY: Kim Suit Transferred to C.D. Ca.
------------------------------------------------------
The case captioned as Sera Kim, as an individual and on behalf of
all others similarly situated, Plaintiff v. Wave Plastic Surgery
Center, Inc., a California corporation, Wave Plastic Surgery Center
Arcadia, Inc., a California corporation, Wave Plastic Surgery
Center Irvine, Inc., a California corporation, Wave Plastic Surgery
Center San Francisco, Inc., a California corporation and DOES 1
through 50, inclusive, Defendants, was transferred from the Los
Angeles County Superior Court with the assigned Case No.
20STCP02376 to the U.S. District Court for the Central District of
California on Dec. 29, 2020, and assigned Case No. 2:20-cv-11735.
The docket of the case states the nature of suit as Telephone
Consumer Protection Act (TCPA) filed over Restrictions in Use of
Telephone Equipment.
Wave Plastic Surgery Center, Inc. is a plastic surgery clinic in
San Francisco, California.[BN]
The Plaintiff appears PRO SE.
The Defendants are represented by:
Kristin Emily Haule, Esq.
Manatt Phelps and Phillips LLP
2049 Century Park East Suite 1700
Los Angeles, CA 90067
Tel: (310) 312-4000
Fax: (310) 312-4224
Email: khaule@manatt.com
WPX ENERGY: Facing Devon Energy Merger Related Suits
----------------------------------------------------
WPX Energy, Inc. said in its Form 8-K filing with the U.S.
Securities and Exchange Commission filed on December 22, 2020, that
the company is facing several suits including a putative class
action suit related to its merger with Devon Energy Corporation.
On September 26, 2020, WPX Energy, Inc., a Delaware corporation
entered into an Agreement and Plan of Merger, by and among WPX,
Devon Energy Corporation, a Delaware corporation, and East Merger
Sub, Inc., a Delaware corporation and wholly-owned subsidiary of
Devon.
The Merger Agreement provides that, among other things and upon the
terms and subject to the conditions set forth in the Merger
Agreement, Merger Sub will merge with and into WPX, with WPX
surviving the Merger as a wholly-owned subsidiary of Devon.
On November 5, 2020, Devon filed with the Securities and Exchange
Commission a Registration Statement on Form S-4, which included a
preliminary Joint Proxy Statement/Prospectus for the solicitation
of proxies in connection with the special meetings of Devon's and
WPX's stockholders, to be held on December 30, 2020, to vote upon,
among other things, matters necessary to complete the Merger, and
on November 30, 2020, WPX mailed the definitive Joint Proxy
Statement/Prospectus to its stockholders.
Following the initial filing of the Proxy Statement with the SEC,
twelve complaints have been filed with respect to the Merger. The
twelve complaints are captioned as follows: Stephen Bushansky v.
WPX Energy, Inc., et al., Case No. 1:20-cv-09873 (S.D.N.Y.), John
Fiscus v. WPX Energy, Inc., et al., Case No. 1:20-cv-09614
(S.D.N.Y.), Michael Miller v. WPX Energy, Inc., et al., Case No.
1:20-cv-05646 (E.D.N.Y.), Samuel Hogan v. WPX Energy, Inc., et al.,
Case No. 1:20-cv-09795 (S.D.N.Y.), William Hull v. WPX Energy,
Inc., et al., Case No. 1:20-cv-01517 (D. Del.), Pierre Kohler v.
WPX Energy, Inc., et al., Case No. 1:20-cv-10338 (S.D.N.Y.), Kyle
Allen v. WPX Energy, Inc., et al., Case No. 656458/2020 (Sup. Ct.
N.Y. Cty), Gerald Joseph Lovoi v. WPX Energy, Inc., et al., Case
No. 1:20-cv-01540 (D. Del.), Lowinger v. WPX Energy, Inc., et al.,
Case No. 1:20-cv-09519 (S.D.N.Y.), Emmanuel Rigatos v. WPX Energy,
Inc., et al., Case No. 1:20-cv-09696 (S.D.N.Y.), Elaine Wang v. WPX
Energy, Inc., et al., Case No. 1:20-cv-01504 (D. Del.), and Steven
Westmoreland v. WPX Energy, Inc., et al., Case No. 1:20-cv-09799
(S.D.N.Y.).
The Bushansky Action, Fiscus Action, Miller Action, Hogan Action,
Hull Action, Kohler Action, Allen Action, Lowinger Action, Rigatos
Action, Wang Action, and Westmoreland Action were filed by
purported WPX stockholders and name WPX and the members of the WPX
Board as defendants.
The Hull Action and Allen Action also name Devon and Merger Sub as
defendants.
The Lovoi Action was filed by a purported Devon stockholder and
asserts claims against Devon and members of Devon's board of
directors.
The Stockholder Actions allege that, among other things, the Proxy
Statement fails to disclose certain allegedly material information
in violation of Section 14(a) and Section 20(a) of the Securities
Exchange Act of 1934, as amended, as well as Rule 14a-9 under the
Exchange Act and, in the case of the Fiscus Action, in breach of
the fiduciary duties of the WPX Board.
The Allen complaint is a putative class action that also alleges
claims that the WPX directors breached their fiduciary duties and
that WPX, Devon and Merger Sub aided and abetted the alleged breach
of fiduciary duty, premised on, among other things, allegations
that the merger consideration is inadequate, that the WPX Board
process was unfair to stockholders, that WPX's Board and executive
officers are conflicted, and that certain terms of the merger
unduly benefit Devon. The complaints seek injunctive relief
enjoining the Merger and damages and costs, among other remedies.
It is possible that additional, similar complaints may be filed or
the complaints described above may be amended. If this occurs, WPX
does not intend to announce the filing of each additional, similar
complaint or any amended complaint unless it contains materially
new or different allegations. Although WPX cannot predict the
outcome of or estimate the possible loss or range of loss from
these matters, WPX and WPX's defendant directors believe that these
complaints are without merit and intend to vigorously defend them.
WPX believes that no supplemental disclosures are required under
applicable laws; however, in order to avoid the risk of the
Stockholder Actions delaying the Merger and minimize the expense of
defending the Stockholder Actions, and without admitting any
liability or wrongdoing, WPX is voluntarily making certain
disclosures that supplement those contained in the Proxy Statement.
A copy of the supplemental disclosure is available at
https://bit.ly/2JzoYai.
Tulsa, Oklahoma-based WPX Energy, Inc. operates in the exploration
and production segment of the oil and gas industry and its
operations are primarily located in Texas, North Dakota, New Mexico
Colorado. The Company specialize in development and production from
tight-sands and shale formations in the Delaware, Williston and San
Juan Basins.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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