/raid1/www/Hosts/bankrupt/CAR_Public/210205.mbx
C L A S S A C T I O N R E P O R T E R
Friday, February 5, 2021, Vol. 23, No. 21
Headlines
ABBOTT LABORATORIES: Web Site Not Accessible to Blind, Suit Says
AETNAS BETTER: Faces Pineda Suit Over Unsolicited Text Messages
ALDI INC: Cheddar Not Smoked Over Wood Chips, Fleischer Suit Says
ASTRAZENECA PLC: Faces Monroe Securities Suit Over ADS Price Drop
ASTRAZENECA PLC: Rosen Law Firm Reminds of March 27 Deadline
ASTRAZENECA PLC: Schall Law Firm Reminds of March 27 Deadline
BANK OF AMERICA: Faces Oosthuizen Suit Over EDD Insurance Benefits
BAYER CROPSCIENCE: Faces Lex Suit Over Crop Input Market Monopoly
BEN E. KEITH: Faces Fishburne Suit Over Failure to Pay Overtime
BIT DIGITAL: Kehoe Law Firm Investigates Potential Securities Suit
BIT DIGITAL: Levi & Korsinsky Reminds of March 22 Deadline
BIT DIGITAL: Yang Sues Over Decline in Securities Market Value
BLACKBERRY LTD: Court Certifies Class in Pearlstein Securities Suit
BOEING CO: Enters DPA with Justice Dep't Following Class Action
BRIGADOON FITNESS: Loses Summary Judgment Bid in Gorss TCPA Suit
CANADA: Superior Court Authorizes Parking Meter Class Action
CAPIO PARTNERS: Overshadowing Claims in Anderson FDCPA Suit Tossed
CAPSTONE GROUP: Faces Rivera Suit Over Unwanted Text Messages
CARNIVAL CORP: Bid to Nix Consolidated Putative Class Suit Pending
CARNIVAL CORP: Interlocutory Appeal in Karpik Suit Pending
CARNIVAL CORP: O'Neill Putative Class Suit Stayed
CARNIVAL CORP: Ruby Princess Former Guests' Suit Underway
CARPENTER DESIGN: Ruppe et al. Seek Builders' Unpaid OT Wages
CD PROJEKT: Bragar Eagel & Squire Reminds of February 22 Deadline
CHEYENNE MEDICAL: Faces Quintero Suit Over Unwanted Text Messages
CHURCHILL DOWNS: Judge Philips to Determine Final Claims in Kater
CLUB EXPLORIA: Moore's Bid for Sanctions in TCPA Suit Partly Okayed
CONOPCO INC: Bernstein Sues Over Mislabeled Vanilla Ice Cream
COVIA HOLDINGS: Faces Baron Suit Over Drop in Share Price
D&G TRANSMISSION: Underpays Auto Repair Shop Workers, Szwed Claims
DIAMOND T SERVICES: Roinestad Sues Over Supervisors' Unpaid OT
ETHAN HOSPITALITY: Hendricks Seeks Unpaid OT Wages Under FLSA
FEDERAL EXPRESS: Fischer Appeals Ruling in FLSA Suit to Third Cir.
FIRSTCREDIT INC: Legere-Gordon Suit Settlement Gets Prelim. Nod
GREENSPOON MARDER: N.J. Court Narrows Claims in Rock FDCPA Suit
HELIX TCS: Urges Judge to Bar Class Certification in FLSA Suit
INTERCONTINENTAL TERMINALS: Faces Ogden Suit Over Tank Yard Fire
JERRY W. BAILEY: Settlement in Koch FLSA Suit Wins Court Approval
JOSIE ACCESSORIES: Williams Sues Over Blind-Inaccessible Website
KANDI TECHNOLOGIES: Schall Law Firm Reminds of Feb. 9 Deadline
KELLER WILLIAMS: Samataro Suit Transferred to W.D. Texas
KORIN INC: Williams Files ADA Suit in S.D. New York
KTG MULTISERVICES: Sanchez Suit Alleges Unpaid Wages for Cleaners
KUSH PHARM: Raven Sues Over Transmission of Unwanted Text Messages
LIVE LION: Valencia Suit Seeks Unpaid Wages for Security Staff
LIVENT CORP: April 15 Fairness Hearing Set for Class Settlement
MANPOWERGROUP US: 2 Classes in Francis Suit Conditionally Certified
MAX BINIK: Faces Ticas Wage-and-Hour Class Suit in E.D.N.Y.
MINERVA NEUROSCIENCES: Thornton Law Reminds of Feb. 8 Deadline
MSHS INC: Rangel Seeks Overtime Pay for Store Managers Under FLSA
PATRIOT INSPECTION: Settlement in Stanley Suit Gets Court Approval
PENUMBRA INC: Bronstein Gewirtz Reminds of March 16 Deadline
PICCOLA CUCINA: Rigano Suit Seeks Minimum, OT Pay Under FLSA & NYLL
QIWI PLC: Bragar Eagel Reminds Investors of February 9 Deadline
QUANTUMSCAPE CORP: Lieff Cabraser Reminds of March 8 Deadline
RIPPLE LABS: Faces Class Action Over Unregistered XRP Sales
ROBINHOOD MARKETS: Faces Baird Suit Over Unfair Trading Practices
SAFE FOR HOME: Cota Files ADA Suit in S.D. California
SAKS INC: April 26 Settlement Fairness Hearing Set
SECURITAS SECURITY: Desrosiers Sues Over Security Guards' Unpaid OT
SEPTEM COMA: Sends Unsolicited Text Messages, Brady Suit Alleges
SHR PALO ALTO: Website Lacks Accessibility Info, Arroyo Suit Says
SIGNET BUILDERS: Vanegas Seeks to Recover Proper Overtime Pay
SIGNIFY HEALTH: Barry Sues Over Unsolicited Telemarketing Calls
STANWELL CORP: Manipulates Electricity Pricing System, Suit Says
STATE FARM: Bauer Sues Over Excessive Cost of Insurance Charges
TENNESSEE: Atkins Files Certiorari Petition in Civil Rights Suit
TESLA INC: Ninth Cir. Upholds Dismissal of Wochos Securities Suit
THAICHELLA LLC: Barrera Files FLSA Suit in S.D. New York
TRANSUNION LLC: Carlton Fields Attorney Discusses Court Ruling
TRICIDA INC: Robbins Geller Reminds Investors of March 8 Deadline
TRITERRAS INC: Hagens Berman Reminds of February 19 Deadline
UBER TECHNOLOGIES: Court Certifies Class of Drivers in James Suit
UBER TECHNOLOGIES: Drivers' Labor Class Action Can Proceed
UNITED STATES: Court Denies Miller's Bid for Writ of Habeas Corpus
WEST KABUL: Naula Seeks Minimum Wages, OT Premiums Under FLSA, NYLL
XPO LOGISTICS: Menoch Seeks OT Pay for Sales Reps Under FLSA & IMWL
[*] Blank Rome Discusses Data Breach Class Action Defense
[*] Class Action Filed Over Contaminated Water Wells
[*] Securities Class Action Filings Remain High Despite Pandemic
[*] Stradling Yocca Discusses CCPA's Private Right of Action
Asbestos Litigation
ASBESTOS UPDATE: ADAO Challenges EPA’s Asbestos Risk Evaluation
ASBESTOS UPDATE: Bentonview Evacuated Due to Asbestos Exposure
*********
ABBOTT LABORATORIES: Web Site Not Accessible to Blind, Suit Says
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JENISA ANGELES, individually and on behalf of all others similarly
situated, Plaintiff v. ABBOTT LABORATORIES, Defendant, Case No.
1:21-cv-00806 (S.D.N.Y., Jan. 29, 2021) alleges violation of the
Americans with Disabilities Act.
The Plaintiff alleges in the complaint that the Defendant's
Website, www.abbottstore.com, is not fully or equally accessible to
blind and visually-impaired consumers in violation of the ADA. The
Plaintiff seeks a permanent injunction to cause a change in the
Defendants' corporate policies, practices, and procedures so that
the Defendants' Website will become and remain accessible to blind
and visually-impaired consumers, including the Plaintiff.
Abbott Laboratories discovers, develops, manufactures, and sells a
broad and diversified line of health care products and services.
The Company's products include pharmaceuticals, nutritional,
diagnostics, and vascular products. [BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Telephone: (201) 282-6500
Facsimile: (201) 282-6501
E-mail: mrozenberg@steinsakslegal.com
AETNAS BETTER: Faces Pineda Suit Over Unsolicited Text Messages
---------------------------------------------------------------
The case, LISA PINEDA, individually and on behalf of all others
similarly situated, Plaintiff v. AETNA BETTER HEALTH OF ILLINOIS
INC., Defendant, Case No. 1:21-cv-00462 (N.D. Ill., January 27,
2021) arises from the Defendant's alleged violations of the
Telephone Consumer Protection Act.
According to the complaint, the Defendant sent numerous text
messages to the Plaintiff's cellular telephone, including on
December 21, 2020, December 23, 2020, and December 28, 2020, in an
attempt to promote its services. Despite the Plaintiff's
unambiguous request to the Defendant to cease its text messages,
the Defendant continued sending unwanted text messages to the
Plaintiff.
The Plaintiff asserts that he never provided her phone number to
the Defendant nor her "prior express consent" to receive text
messages, which were highly intrusive and nuisance, and have caused
actual harm to her.
The Plaintiff seeks an injunctive relief enjoining the Defendant
from placing further violating text messages to any consumers, as
well as damages and other relief that the Court deems just and
proper.
Aetna Better Health of Illinois Inc. provides health insurance.
[BN]
The Plaintiff is represented by:
Mohammed O. Badwan, Esq.
Victor T. Metroff, Esq.
SULAIMAN LAW GROUP, LTD.
2500 S. Highland Ave., Suite 200
Lombard, IL 60148
Tel: (630) 575-8180
E-mail: mbadwan@sulaimanlaw.com
vmetroff@sulaimanlaw.com
ALDI INC: Cheddar Not Smoked Over Wood Chips, Fleischer Suit Says
-----------------------------------------------------------------
Michael Fleischer, individually and on behalf of all others
similarly situated v. Aldi Inc., Case No. 1:21-cv-00443 (E.D.N.Y.,
Jan. 27, 2021), alleges that the Defendant's branding, marketing
and packaging of the Smoked White Cheddar -- Deli Sliced Cheese
(Product) is designed to -- and does -- deceive, mislead, and
defraud Plaintiff and other consumers.
Aldi manufactures, distributes, markets, labels and sells "Smoked
White Cheddar -- Deli Sliced Cheese" to consumers from its over
2,000 grocery stores in the United States.
According to the complaint, since the food is labeled as "Smoked
White Cheddar Cheese," consumers expect its smoked flavor is from
being smoked over wood chips. However, the Product's smoked flavor
is not from being smoked over wood chips, but from added "liquid
smoke" flavor, identified as "natural smoke flavor" on the
ingredient list.
Allegedly, consumers are misled because the front label fails to
tell the what the Product is -- "Natural Smoke Flavored White
Cheddar Cheese" – in violation of the requirements of federal and
state law.
The Defendant sold more of the Product and at higher prices than it
would have in the absence of this misconduct, resulting in
additional profits at the expense of consumers, the suit says.
As a result of the false and misleading labeling, the Product is an
sold at a premium price, approximately no less than $4.29 per 8 OZ
compared to other similar products represented in a non-misleading
way, and higher than the price of the Product if it were
represented in a non-misleading way, the Plaintiff contends.
ALDI Inc. owns and operates grocery stores. The Company offers
grocery, meat, fresh produce, wine and beer, beverages, and other
home products. ALDI serves customers in the United States.BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cuttermill Rd Ste 409
Great Neck, NY 11021-3104
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
ASTRAZENECA PLC: Faces Monroe Securities Suit Over ADS Price Drop
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MONROE COUNTY EMPLOYEES' RETIREMENT SYSTEM, Individually and on
Behalf of All Others Similarly Situated v. ASTRAZENECA PLC, PASCAL
SORIOT, MARC DUNOYER and MENELAS PANGALOS, Case No. 1:21-cv-00722
(S.D.N.Y., Jan. 26, 2021) is a securities class action on behalf of
all purchasers of AstraZeneca American Depositary Shares ("ADSs")
between May 21, 2020 and November 20, 2020, inclusive (the "Class
Period") against AstraZeneca and certain of the Company's executive
officers seeking to pursue remedies under the Securities Exchange
Act of 1934.
On November 23, 2020, AstraZeneca issued a release announcing the
results of an interim analysis of its ongoing trial for AZD1222.
Although the release claimed that the drug candidate had met its
primary efficacy endpoints, the announcement immediately began to
raise questions among analysts and industry experts. AstraZeneca
disclosed that the interim analysis involved two smaller scale
trials in disparate locales (the United Kingdom and Brazil) that,
for unexplained reasons, employed two different dosing regimens.
One clinical trial provided patients a half dose of AZD1222
followed by a full dose, while the other trial provided two full
doses.
Counterintuitively, AstraZeneca claimed that the half dosing
regimen was substantially more effective at preventing COVID-19 at
90% efficacy than the full dosing regimen, which had achieved just
62% efficacy. AstraZeneca highlighted the blended "average efficacy
of 70%" among the two trials.
The unexplained discrepancies, omissions and the need for multiple
trials in separate locales raised red flags for investors and
distinguished AstraZeneca's trial procedures from those of other
biopharmaceutical companies, such as Pfizer and Moderna, that had
recently released interim results for their own COVID-19 vaccine
candidates. As questions surrounding AstraZeneca's announcement
grew, the price of AstraZeneca ADSs declined nearly $2 per ADS
during the trading day on November 23, 2020, on extremely high
trading volume of over 13 million ADSs traded, the suit says.
As negative news reports continued to reveal previously undisclosed
problems and flaws in AstraZeneca's clinical trials for AZD1222,
the price of AstraZeneca ADSs fell to $52.60 by market close on
November 25, 2020, a 5% decline over three trading days in response
to adverse news on abnormally high volume.
As a result of Defendants' alleged wrongful acts and omissions,
Plaintiff and the Class purchased AstraZeneca ADSs at artificially
inflated prices and suffered significant losses and were damaged
thereby.
The Plaintiff purchased AstraZeneca ADSs during the Class Period as
described in the certification and suffered damages.
AstraZeneca is one of the largest biopharmaceutical companies in
the world. The Company is headquartered in Cambridge, England, and
it maintains its North American headquarters in Wilmington,
Delaware, a global research and development center in Gaithersburg,
Maryland, and a primary commercial and manufacturing hub in Boston,
Massachusetts. AstraZeneca is primarily known for its development
of drugs to treat cancer, asthma and other chronic conditions, and
has not historically specialized in vaccine development. The
Individual Defendants are officers and directors of the
company.[BN]
The Plaintiff is represented by:
Samuel H. Rudman, Esq.
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
Facsimile: (631) 367-1173
E-mail: srudman@rgrdlaw.com
- and -
Brian E. Cochran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
200 South Wacker Drive, 31 st Floor
Chicago, IL 60606
Telephone: (312) 674-4674
Facsimile: (312) 674-4676
E-mail: bcochran@rgrdlaw.com
- and -
Thomas C. Michaud, Esq.
VANOVERBEKE, MICHAUD TIMMONY, P.C.
79 Alfred Street
Detroit, MI 48201
Telephone: (313) 578-1200
Facsimile: (313) 578-1201
E-mail: tmichaud@vmtlaw.com
ASTRAZENECA PLC: Rosen Law Firm Reminds of March 27 Deadline
------------------------------------------------------------
Rosen Law Firm, a global investor rights law firm, on Jan. 27
announced the filing of a class action lawsuit on behalf of
purchasers of the securities of AstraZeneca PLC (NASDAQ: AZN)
between May 21, 2020 and November 20, 2020, inclusive (the "Class
Period"). The lawsuit seeks to recover damages for AstraZeneca
investors under the federal securities laws.
To join the AstraZeneca class action, go to
http://www.rosenlegal.com/cases-register-2027.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action.
According to the lawsuit, defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) initial clinical trials for AZD1222, the Company's
coronavirus vaccine hopeful, had suffered from a critical
manufacturing error, resulting in a substantial number of trial
participants receiving half the designed dosage; (2) clinical
trials for AZD1222 consisted of a patchwork of disparate patient
subgroups, each with subtly different treatments, undermining the
validity and import of the conclusions that could be drawn from the
clinical data across these disparate patient populations; (3)
certain clinical trial participants for AZD1222 had not received a
second dose at the designated time points, but rather received the
second dose up to several weeks after the dose had been scheduled
to be delivered according to the original trial design; (4)
AstraZeneca had failed to include a substantial number of patients
over 55 years of age in its clinical trials for AZD1222, despite
this patient population being particularly vulnerable to the
effects of COVID-19 and thus a high priority target market for the
drug; (5) AstraZeneca's clinical trials for AZD1222 had been
hamstrung by widespread flaws in design, errors in execution, and a
failure to properly coordinate and communicate with regulatory
authorities and the general public; (6) as a result of the
foregoing, the clinical trials for AZD1222 had not been conducted
in accordance with industry best practices and acceptable standards
and the data and conclusions that could be derived from the
clinical trials was of limited utility; and (7) as a result of the
foregoing, AZD1222 was unlikely to be approved for commercial use
in the United States in the short term, one of the largest
potential markets for the drug.
A class action lawsuit has already been filed. If you wish to serve
as lead plaintiff, you must move the Court no later than March 27,
2021. A lead plaintiff is a representative party acting on behalf
of other class members in directing the litigation. If you wish to
join the litigation, go to
http://www.rosenlegal.com/cases-register-2027.htmlor to discuss
your rights or interests regarding this class action, please
contact Phillip Kim, Esq. of Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
cases@rosenlegal.com.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. YOU MAY ALSO REMAIN AN
ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. AN INVESTOR'S
ABILITY TO SHARE IN ANY POTENTIAL FUTURE RECOVERY IS NOT DEPENDENT
UPON SERVING AS LEAD PLAINTIFF.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm was Ranked No. 1
by ISS Securities Class Action Services for number of securities
class action settlements in 2017. The firm has been ranked in the
top 3 each year since 2013. Rosen Law Firm has achieved the largest
ever securities class action settlement against a Chinese Company.
Rosen Law Firm's attorneys are ranked and recognized by numerous
independent and respected sources. Rosen Law Firm has secured
hundreds of millions of dollars for investors. Attorney
Advertising. Prior results do not guarantee a similar outcome.
CONTACT:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
ASTRAZENECA PLC: Schall Law Firm Reminds of March 27 Deadline
-------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on Jan. 27 announced the filing of a class action lawsuit against
AstraZeneca PLC ("AstraZeneca" or "the Company") (NASDAQ: AZN) for
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S.
Securities and Exchange Commission.
Investors who purchased the Company's securities between May 21,
2020 and November 20, 2020, inclusive (the "Class Period"), are
encouraged to contact the firm before March 27, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. AstraZeneca's initial clinical trials for
its COVID-19 vaccine, AZD1222, suffered from manufacturing errors.
The validity and import of the Company's clinical trials for
AZD1222 were damaged by a patchwork of differentiated patient
subgroups, each with subtly different treatments. Some trial
participants did not receive a second dose of the vaccine candidate
at the designated time, in some cases receiving them weeks later.
The Company failed to include a substantial sample of patients aged
over 55, despite this population being a high priority for
vaccination. The Company's clinical trials were generally damaged
by widespread design errors and flawed execution. Based on these
facts, the Company's public statements were false and materially
misleading throughout the class period. When the market learned the
truth about AstraZeneca, investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
Contacts:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
BANK OF AMERICA: Faces Oosthuizen Suit Over EDD Insurance Benefits
------------------------------------------------------------------
ROLAND OOSTHUIZEN and ROSEMARY MATHEWS, on behalf of themselves and
all others similarly situated v. BANK OF AMERICA, N.A.; and DOES 1
through 30, inclusive, Case No. 3:21-cv-00615 (N.D. Cal., Jan. 26,
2021) is a class action complaint brought on behalf of the
Plaintiffs and and all other similarly situated individuals whose
California unemployment insurance (UI) and other public benefits
are or were paid through bank debit cards issued by Bank of
America.
The Plaintiffs bring this class action against Bank of America for
breach of contract, negligence, and other state common law and
statutory claims to remedy Bank of America's egregious
maladministration of its obligations under the California
Employment Development Department's (EDD) benefits payment
programs. In violation of the Bank's common law and statutory
obligations to the Plaintiffs and class members, both directly and
as third party beneficiaries of the contract between the Bank and
EDD, Defendant Bank of America has deprived Plaintiffs and class
members of their statutory right to UI and other benefits when due,
and has permitted, countenanced, and failed to take reasonable
steps to protect the Plaintiffs and class members from fraud and to
take reasonable steps to ensure that the Plaintiffs and class
members are able to receive and retain access to the public
benefits to which they are lawfully
entitled, says the complaint.
EDD is an agency of the State of California that is responsible for
administering numerous benefits programs for low-income,
unemployed, and other Californians, including programs providing
unemployment insurance benefits, disability insurance benefits,
paid family leave benefits, pandemic unemployment assistance
benefits, and pandemic emergency unemployment compensation benefits
to Californians (collectively, "EDD benefits").
In 2010, Defendant Bank of America entered into an exclusive
contract with the State of California and EDD to issue Bank of
America debit cards through which individuals entitled to receive
EDD benefits could access those benefits.
Ms. Mathews is a person residing in Lawndale, California. She lost
her employment with the Staples Center catering department and with
a yoga studio in March 2020 due to the COVID-19 pandemic. She
applied for, was eligible for, and received EDD 8 unemployment
benefits after losing her jobs, and soon thereafter received a Bank
of America EDD Visa debit card with a magnetic stripe but no EMV
chip to use to access her benefits. In October 2020, Mathews was
the victim of an unauthorized transaction on her card in the amount
of $1,000, despite her having maintained exclusive physical
possession of that card.
Plaintiff Oosthuizen is a person residing in Lawndale, California.
He was furloughed from his job working for ABM at Los Angeles
International Airport in or about April 14 2020 due to the COVID-19
pandemic. He applied for, was eligible for, and received EDD
unemployment benefits after being furloughed and soon thereafter
received a Bank of America EDD Visa debit card with a magnetic
stripe but no EMV chip to use to access his benefits. In September
2020, Oosthuizen was the victim of five separate unauthorized
transactions on his card on five successive days in the amount of
$1,000 each, despite his having maintained exclusive physical
possession of that card.
Bank of America, National Association operates as a bank. The Bank
offers saving and current account, investment and financial
services, online banking, and mortgage and non-mortgage loan
facilities, as well as issues credit card and business loans.[BN]
The Plaintiffs are represented by:
Michael Rubin, Esq.
Matthew Murray, Esq.
Connie Chan, Esq.
ALTSHULER BERZON LLP
177 Post St., Ste. 300
San Francisco, CA 94108
Telephone: (415) 421-7151
Facsimile: (415) 362-8064
E-mail: mrubin@altber.com
mmurray@altber.com
cchan@altber.com
- and -
Adam McNeile, Esq.
Kristin Kemnitzer, Esq.
KEMNITZER, BARRON, & KRIEG, LLP
42 Miller Ave., 3rd Floor
Mill Valley, CA 94941
Telephone: (415) 632-1900
Facsimile: (415) 632-1901
E-mail: adam@kbklegal.com
kristin@kbklegal.com
BAYER CROPSCIENCE: Faces Lex Suit Over Crop Input Market Monopoly
-----------------------------------------------------------------
CHARLES LEX v. BAYER CROPSCIENCE LP, BAYER CROPSCIENCE, INC.,
CORTEVA INC., CARGILL INCORPORATED, BASF CORPORATION, SYNGENTA
CORPORATION, WINFIELD SOLUTIONS, LLC, UNIVAR SOLUTIONS, INC.,
FEDERATED COOPERATIVES LTD., CHS INC., NUTRIEN AG SOLUTIONS INC.,
GROWMARK INC., SIMPLOT AB RETAIL SUB, INC., AND TENKOZ INC., Case
No. 0:21-cv-00188 (D. Minn., Jan. 26, 2021), is a class action
complaint brought on behalf of the Plaintiff and on behalf of all
classes consisting of persons or entities in the United States,
including its territories, that, at least as early as January 1,
2014 and continuing through the present, purchased from a Defendant
a Crop Input.
According to the complaint, given the structure of the Crop Inputs
industry with the necessary relationships between manufacturers,
wholesalers, and retailers, an effective boycott of electronic
platforms would not have been feasible absent actual coordination
and cooperation among the Defendants. Absent an agreement among
themselves, the Defendants' alleged actions were against their
independent economic self-interests. As a result of the Defendants'
misconduct, farmers remain trapped in an inefficient, opaque Crop
Inputs market and have paid more for Crop Inputs than they would
have but for the Defendants' wrongful conduct. The Plaintiff and
the Classes bring this antitrust suit to redress that wrongful
conduct.
The market for "Crop Inputs" -- seeds and crop protection chemicals
such as fungicides, herbicides, and insecticides -- used by
American farmers is one of the largest markets in the world with
annual sales in excess of $65 billion.
The Plaintiff brings this action under Section 16 of the Clayton
Act, to secure injunctive relief against the Defendants for
violating Section 1 of the Sherman Act, and to recover actual and
compensatory damages, treble damages, interest, costs, and
attorneys' fees for the injury caused by the Defendants' wrongful
conduct. The Plaintiff also brings state law class claims on behalf
of the Classes to recover actual and/or compensatory damages,
double and treble damages as permitted, pre- and post- judgment
interest, costs, and attorneys' fees for the injury caused by the
Defendants' conduct.
Bayer CropScience operates as a crop science company. The Company
offers fungicides, harvest aids, herbicides, insecticides, traits,
seed, seed treatments, and weed management products.[BN]
The Plaintiff is represented by:
W. Joseph Bruckner, Esq.
Robert K. Shelquist, Esq.
Brian D. Clark, Esq.
Rebecca A. Peterson, Esq.
Stephanie A. Chen, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Ave. South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: wjbruckner@locklaw.com
rkshelquist@locklaw.com
bdclark@locklaw.com
rapeterson@locklaw.com
sachen@locklaw.com
- and -
J. Barton Goplerud, Esq.
Brandon M. Bohlman, Esq.
SCHINDLER, ANDERSON, GOPLERUD &
WEESE P.C.
5015 Grand Ridge Drive, Suite 100
West Des Moines, IA 50265
Telephone: (515) 223-4567
Facsimile: (515) 223-8887
E-mail: goplerud@sagwlaw.com
bohlman@sagwlaw.com
BEN E. KEITH: Faces Fishburne Suit Over Failure to Pay Overtime
---------------------------------------------------------------
KYLE FISHBURNE, on behalf of himself and all others similarly
situated, Plaintiff v. BEN E. KEITH COMPANY, Defendant, Case No.
4:21-cv-00095-Y (N.D. Tex., January 27, 2021) is a collective
action complaint brought against the Defendant for its alleged
failure to pay overtime in violation of the Fair Labor Standards
Act and the Portal-to-Portal Pay Act.
The Plaintiff, who has worked for the Defendant as a warehouse
worker in Fort Worth, Texas from approximately August 5, 2015 to
approximately October 19, 2020, alleges that the Defendant did not
pay him overtime premium at one and one-half times his regular rate
of pay despite he routinely worked in excess of 40 hours per
seven-day workweek.
The Plaintiff seeks all damages available under the FLSA and PPPA,
including back wages, liquidated damages, legal fees, costs, and
post-judgment interest.
Ben E. Keith Company is a premier distributor of top-quality food
service products and premium beverages. [BN]
The Plaintiff is represented by:
Allen R. Vaught, Esq.
NILGES DRAHER VAUGHT PLLC
1910 Pacific Ave., Suite 9150
Dallas, TX 75201
Tel: (214) 251-4157
Fax: (214) 261-5159
E-mail: avaught@txlaborlaw.com
BIT DIGITAL: Kehoe Law Firm Investigates Potential Securities Suit
------------------------------------------------------------------
Kehoe Law Firm, P.C. is investigating potential securities claims
on behalf of investors of Bit Digital, Inc. ("Bit Digital" or the
"Company") (NASDAQ: BTBT) to determine whether the Company engaged
in securities fraud or other unlawful business practices.
INVESTORS WHO PURCHASED, OR OTHERWISE ACQUIRED, BIT DIGITAL
SECURITIES BETWEEN DECEMBER 21, 2020 AND JANUARY 8, 2021, BOTH
DATES INCLUSIVE (THE "CLASS PERIOD"), AND SUFFERED LOSSES GREATER
THAN $100,000 ARE ENCOURAGED TO COMPLETE KEHOE LAW FIRM'S
SECURITIES CLASS ACTION QUESTIONNAIRE OR CONTACT MICHAEL YARNOFF,
ESQ., (215) 792-6676, EXT. 804, MYARNOFF@KEHOELAWFIRM.COM,
SECURITIES@KEHOELAWFIRM.COM, INFO@KEHOELAWFIRM.COM, TO DISCUSS THE
SECURITIES INVESTIGATION OR POTENTIAL LEGAL CLAIMS.
On January 20, 2021, a class action lawsuit was filed against Bit
Digital in United States District Court, Southern District of New
York.
According to class action complaint, throughout the Class Period,
the Bit Digital Defendants made materially false and/or misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects. Allegedly,
the Bit Digital Defendants failed to disclose to investors: (1)
that Bit Digital overstated the extent of its bitcoin mining
operation; and (2) as a result of the foregoing, the Bit Digital
Defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
Kehoe Law Firm, P.C., with offices in New York and Philadelphia, is
a multidisciplinary, plaintiff–side law firm dedicated to
protecting investors from securities fraud, breaches of fiduciary
duties, and corporate misconduct. Combined, the partners at Kehoe
Law Firm have served as Lead Counsel or Co-Lead Counsel in cases
that have recovered more than $10 billion on behalf of
institutional and individual investors. [GN]
BIT DIGITAL: Levi & Korsinsky Reminds of March 22 Deadline
----------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of Bit Digital, Inc. (NASDAQ: BTBT) ("Bit Digital")
between December 21, 2020 and January 8, 2021. You are hereby
notified that a securities class action lawsuit has been commenced
in the United States District Court for the Southern District of
New York. To get more information go to:
https://www.zlk.com/pslra-1/bit-digital-inc-loss-submission-form?prid=12470&wire=5
or contact Joseph E. Levi, Esq. either via email at
jlevi@levikorsinsky.com or by telephone at (212) 363-7500. There is
no cost or obligation to you.
The complaint alleges that throughout the class period Defendants
issued materially false and/or misleading statements and/or failed
to disclose that: (1) that Bit Digital overstated the extent of its
a bitcoin mining operation; and (2) that, as a result of the
foregoing, Defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
If you suffered a loss in Bit Digital you have until March 22, 2021
to request that the Court appoint you as lead plaintiff. Your
ability to share in any recovery doesn't require that you serve as
a lead plaintiff.
Levi & Korsinsky is a nationally recognized firm with offices in
New York, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
55 Broadway, 10th Floor
New York, NY 10006
jlevi@levikorsinsky.com
Tel: (212) 363-7500
Fax: (212) 363-7171
www.zlk.com [GN]
BIT DIGITAL: Yang Sues Over Decline in Securities Market Value
--------------------------------------------------------------
Zhongxun Yang, individually and on behalf of all others similarly
situated v. BIT DIGITAL, INC., MIN HU, and ERKE HUANG, Case No.
1:21-cv-00721 (S.D.N.Y., Jan. 26, 2021), is brought on behalf of
persons and entities that purchased or otherwise acquired Bit
Digital securities between December 21, 2020 and January 8, 2021,
inclusive; and pursues claims against the Defendants under the
Securities Exchange Act of 1934 due to the Defendants' wrongful
acts and omissions, and the precipitous decline in the market value
of the Company's securities.
Accodrding to the complaint, the Defendants made materially false
and/or misleading statements, as well as failed to disclose
material adverse facts about the Company's business, operations,
and prospects. Specifically, the Defendants failed to disclose to
investors that: (i) Bit Digital overstated the extent of its
bitcoin mining operation; and (ii) as a result of the foregoing,
Defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis.
On January 11, 2021, J Capital Research issued a research report
alleging, among other things, that Bit Digital operates "a fake
crypto currency business" "designed to steal funds from investors."
Though the Company claims "it was operating 22,869 bitcoin miners
in China," J Capital alleged that "is simply not possible" and
stated that "we verified with local governments supposedly hosting
the BTBT mining operation that there are no bitcoin miners there."
On this news, Bit Digital's ordinary share price fell $6.27 per
share, or 25%, to close at $18.76 per share on January 11, 2021, on
unusually heavy trading volume. As a result of Defendants' wrongful
acts and omissions, and the precipitous decline in the market value
of the Company's securities, Plaintiff and other Class members have
suffered significant losses and damages, says the complaint.
The Plaintiff purchased Bit Digital securities during the Class
Period.
Bit Digital is a holding company that purports to engage in the
bitcoin mining business through its wholly owned subsidiaries in
the U.S. and Hong Kong.[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
James M. LoPiano, Esq.
POMERANTZ LLP
600 Third Avenue
New York, NY 10016
Phone: (212) 661-1100
Facsimile: (212) 661-8665
Email: jalieberman@pomlaw.com
ahood@pomlaw.com
jlopiano@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Phone: (312) 377-1181
Facsimile: (312) 377-1184
Email: pdahlstrom@pomlaw.com
- and -
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ & GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Phone: (212) 697-6484
Facsimile: (212) 697-7296
Email: peretz@bgandg.com
BLACKBERRY LTD: Court Certifies Class in Pearlstein Securities Suit
-------------------------------------------------------------------
In the case, MARVIN PEARLSTEIN, Individually And On Behalf of All
Others Similarly Situated, Plaintiffs v. BLACKBERRY LIMITED (F/K/A
RESEARCH IN MOTION LIMITED), THORSTEN HEINS, BRIAN BIDULKA, and
STEVE ZIPPERSTEIN, Defendants, Case No. 13 Civ. 7060 (CM)
(S.D.N.Y.), Chief District Judge Colleen McMahon of the U.S.
District Court for the Southern District of New York granted the
Plaintiffs' Motion for Class Certification.
On Sept. 29, 2017, Lead Plaintiffs Todd Cox and Mary Dinzik and
additional Plaintiffs Yong M. Cho and Batuhan Ulug, filed the
Second Consolidated Amended Class Action Complaint ("SAC"), the
operative complaint in the action, against Defendants BlackBerry,
its former CEO Heins, its former CFO Bidulka, and its Chief Legal
Officer Zipperstein, for violations of the Securities Exchange Act
of 1934. The Plaintiffs bring the federal securities class action
on behalf of the purchasers of BlackBerry common stock between
March 28, 2013 and Sept. 20, 2013. They allege that the Defendants
made a series of materially false and misleading statements and
omissions concerning the Company's new BlackBerry 10 smartphones
("BB10s") during the Class Period.
In short, the Plaintiffs allege that the Defendants' misstatements
and omissions maintained the price of BlackBerry's stock or
otherwise prevented it from falling over the course of the Class
Period. Thus, when they bought BlackBerry common stock during the
Class Period, they did so at an artificially inflated price. They
were harmed when the stock price dropped as these
misrepresentations were revealed throughout the Class Period.
The Plaintiffs now seek to certify a class of all those who
purchased or otherwise acquired the common stock of BlackBerry
Limited on the NASDAQ during the period from March 28, 2013 through
and including Sept. 20, 2013, excluding the Defendants, officers,
and directors of BlackBerry Limited, members of their immediate
families and their legal representatives, heirs, successors, or
assigns, and any entity in which the Defendants have or had a
controlling interest.
The Class Period proposed by the Plaintiffs begins on March 28,
2013, the day of the first alleged misrepresentation about the BB10
launch and revenues therefrom, and ends on Sept. 20, 2013, the day
BlackBerry announced its nearly $1 billion charge against inventory
and supply commitments attributable to the Z10s, that most of its
3.7 million sales for the quarter were not BB10s, and that the
Company had burned $500 million of cash.
Lead counsel Kahn Swick & Foti, LLC was appointed March 14, 2014,
and additional counsel Brower Piven, A Professional Corporation,
which was formally appointed Oct. 18, 2019 but has collaborated
with the lead counsel for the past six years.
Defendants BlackBerry, Heins, and Bidulka filed a joint brief in
opposition. Defendant Zipperstein filed his own brief in
opposition, but joins the opposition of his co-Defendants.
Judge McMahon finds that the proposed class satisfies the standards
for certification pursuant to Rule 23(a)(1)-(4): numerosity,
commonality, typicality, and adequacy of representation. In
addition, the proposed class definition clearly delineates the
class' boundaries by the dates of investors' transactions in
BlackBerry stock. Ascertaining the members of the class will be
easily administrable by references to investor records. Hence, the
Plaintiff has satisfied the implied requirement of
ascertainability.
Next, Rule 23(b)(3) requires the Plaintiffs to demonstrate that
common questions of law or fact predominate over individual
questions and that a class action is the superior method for
adjudicating the dispute. The Defendants argue that the Plaintiffs
cannot prove class-wide reliance or class-wide damages. They do
not challenge superiority.
Judge McMahon holds that the Defendants have failed to demonstrate
an absence of price impact by a preponderance of the evidence, and,
therefore, have failed to rebut the Basic presumption of reliance.
The Plaintiffs have established that common issues of law and fact
concerning "reliance" predominate.
The Plaintiffs have established that adjudicating the case as a
class action will promote judicial efficiency and provide relief to
those with claims too small to justify individual lawsuits. The
Defendants do not contest that any of the factors weigh against
class certification. The Judge therefore concludes that class
certification is the superior method for adjudicating the case.
Finally, the Class Period proposed by the Plaintiffs begins on
March 28, 2013 and ends on Sept. 20, 2013. The Defendants argue
that the market was fully cured as of Aug. 28, 2013 -- the day when
the market reacted swiftly and negatively to BlackBerry's surprise
loss for the quarter and shipment of only 2.7 million BB10s.
Accordingly, they contend that the Class Period should not extend
beyond that date.
The Judge finds that the Plaintiffs offered substantial evidence
that the market was misled throughout the class period.
Specifically, the market continued to overestimate BB10 performance
and overvalue the BB10 project after June 28. The September 20
announcement finally revealed the sell-through issues with the
BB10s. The market reacted with a significant stock drop and
analysts commented on how the disclosure revealed their valuations
had been too high. Accordingly, the "full truth" was not
disseminated to the market until Sept. 20, 2013, marking the end of
the Class Period.
The Defendants also argue that the class definition must exclude
"in-and-out" traders who both purchased and sold BlackBerry stock
before any corrective disclosure. The Plaintiffs do not respond to
the argument in their reply brief, and Dr. Feinstein's own damages
model reflects that shares purchased from March 28, 2013 through
April 10, 2013 and sold prior to April 11, 2013 -- the date of the
first corrective disclosure--have per share damages of $0. Thus,
there is no reason not to exclude these individuals from the class.
The class definition is modified to exclude any person who
purchased BlackBerry from March 28 through April 10, 2013 and who
sold all of their position prior to April 11, 2013.
Based on the foregoing, Judge McMahon granted the Plaintiffs'
motion to certify a class, appoint the class representatives, and
appoint the class counsel in accordance with her Opinion. The
class is modified to exclude true in-and-out traders as stated.
The Clerk of Court is respectfully directed to close Dkt. No. 463.
A full-text copy of the Court's Jan. 26, 2021 Order is available at
https://tinyurl.com/9vk8ay82 from Leagle.com.
BOEING CO: Enters DPA with Justice Dep't Following Class Action
---------------------------------------------------------------
Alison Frankel, writing for Reuters, reports that in every true
corporate crisis, there are at least two dimensions of litigation
for defense lawyers to worry about: government claims, including
prospective state and federal criminal and regulatory cases; and
claims by private plaintiffs, like shareholders in securities class
actions or victims in mass torts or customers in antitrust cases.
Defense strategy has to account for how a resolution in one
dimension of the case will affect the other.
We're seeing that dynamic at work in Boeing's attempt to manage its
737 MAX scandal. Earlier in January, the company entered a $2.5
billion deferred prosecution agreement with the Justice Department
to resolve a criminal allegation of conspiracy to defraud the U.S.
The agreement includes a criminal penalty of nearly $244 million
(the maximum such penalty), $1.77 billion in compensation to
Boeing's airline customers, and $500 million for the heirs and
beneficiaries of the 346 passengers who died in crashes of Boeing
737 MAX planes.
DOJ required Boeing to admit that two of its employees "knowingly,
and with intent to defraud, conspired to defraud" the Federal
Aviation Administration's Aircraft Evaluation Group. And in the
press release announcing the agreement, a DOJ Acting Assistant
Attorney General said the company's employees had concealed
material information about the flawed planes, and then tried to
cover up their deception.
The week after Boeing announced its deal to resolve DOJ's nearly
two-year investigation, plaintiffs' lawyers in two private class
actions arising from the 737 MAX crisis filed motions asking the
judges overseeing their cases to take note of the DPA. Prospective
class counsel for about 7,000 pilots who claim they were duped into
learning to fly the planes argued that in the DOJ agreement,
"Boeing admitted that the information provided to pilots, including
the plaintiffs in this case, was materially false, inaccurate and
incomplete." That admission, said plaintiffs' lawyers Patrick Jones
and Joseph Wheeler, belied Boeing's assertion in its motion to
dismiss the pilots' case that the pilots were not defrauded.
In a separate motion, shareholders suing Boeing for securities
fraud told U.S. District Judge John Tharp of Chicago that the DPA
and accompanying statement of facts directly contradicted many of
Boeing's arguments for dismissing their class action. The
government filings, wrote class counsel from Bernstein Litowitz
Berger & Grossmann, "confirm defendants' culpability for multiple
allegedly false and misleading statements and omissions . . . and,
at a minimum, further make clear that this case should proceed to
discovery."
Boeing's lawyers at Kirkland & Ellis have already disposed of the
DPA in the pilots' case. The U.S. District Judge Steven Seeger
denied plaintiffs' motion for judicial notice of Boeing's agreement
with the government. The company's motion to dismiss the pilots'
complaint is already briefed, the judge said, and admissions from
the government case were not in the class pleadings. "The
complaint," he said, "will rise or fall based on what it says, not
based on information outside the pleadings that a party can muster
after the fact." (Pilots' counsel Wheeler said in an email that he
and Jones still consider Boeing's admissions "highly relevant" and
believe the government filings "will be admitted in discovery at
the appropriate time.")
Will Judge Tharp be similarly disinterested in the shareholder
class action? Boeing's exposure in the case is potentially huge,
since the company lost tens of billions of dollars in market
capitalization after 737 MAX crashes in 2018 and 2019. In June,
Kirkland & Ellis moved to dismiss the class action, arguing that
the shareholder complaint failed to plead that Boeing's alleged
misrepresentations about the plane were fraudulent or that the
company intended to defraud investors.
In a shareholders' motion for judicial notice of the government
deal, Bernstein Litowitz said the DPA and accompanying documents
disproved Boeing's arguments: The company's admissions to the
government, shareholders said, proved both its willful deception
and the fraudulent nature of Boeing's alleged misrepresentations
about the planes' safety and the company's response to the FAA.
Boeing would not have been hit with such a huge penalty, the
Bernstein Litowitz motion said, if it had not at first tried to
hide the planes' problems from the FAA.
Boeing's defense team from Kirkland did not respond to my email
query, but the company's opposition to the class motion for notice
of the DPA said the company's deal with the government is
irrelevant to the shareholders' complaint, which must be evaluated
on its own, without regard for subsequent developments. Boeing
accused plaintiffs' lawyers of procedural improprieties for
re-arguing against dismissal via their brief on the DPA.
Even if Judge Tharp takes the government deal into account,
Boeing's brief said, he should be wary of shareholders'
characterization of the agreement. Boeing emphasized the careful
language of the DPA, which pinned wrongdoing on two particular
employees, not on the company as a whole. In fact, Boeing said, the
government agreement specifically said the underlying illegal
conduct "was neither pervasive across the organization, nor
undertaken by a large number of employees nor facilitated by senior
management." The shareholder class action, Boeing said, alleges
that Boeing's then CEO and CFO fraudulently deceived investors -
but the DPA specifically said "senior" management did not encourage
the fraudulent conspiracy to which Boeing admitted.
John Browne of Bernstein Litowitz declined to comment on Boeing's
opposition brief.
I'm eager to see if Boeing has managed to resolve the government's
case - even admitting to its employees' misconduct - without
suffering collateral damage in the shareholder class action. [GN]
BRIGADOON FITNESS: Loses Summary Judgment Bid in Gorss TCPA Suit
----------------------------------------------------------------
In the case, GORSS MOTELS, INC., a Connecticut corporation,
individually and as the representative of a class of
similarly-situated persons, Plaintiffs v. BRIGADOON FITNESS INC.,
an Indiana corporation, BRIGADOON FINANCIAL, INC., an Indiana
corporation, and JOHN DOES 1-5, Defendants, Case No.
1:16-CV-330-HAB (N.D. Ind.), Judge Holly A. Brady of the U.S.
District Court for the Northern District of Indiana, Fort Wayne
Division, denied the Defendant's Motion for Summary Judgment, and
granted the Plaintiff's Motion for Summary Judgment.
In 1944, vaudesvillian Jimmy Durante made popular the phrase "the
guy's making a federal case out of it." The expression is
particularly apropos in the present case as Gorss received a single
facsimile transmission from Defendants Brigadoon Fitness and
Brigadoon Financial and literally made it a federal case. Gorss
filed the federal lawsuit seeking redress for the offense under the
Telephone Consumer Protection Act ("TCPA") of 1991, as amended by
the Junk Fax Prevention Act of 2005.
Beginning in the fall of 1988, Gorss began operating a Super 8
Motel pursuant to a series of franchise agreements, originally with
Super 8 Motels, then with Super 8 Worldwide, Inc. Wyndham Hotels
Group, LLC which, in turn, is owned by Wyndham Worldwide Corp.,
eventually acquired Super 8 Worldwide, Inc. Defendant Brigadoon
sells commercial fitness equipment, accessories, and related items
to the hospitality industry. Brigadoon, as a party to a separate
agreement with Wyndham, became a Wyndham approved supplier to
provide its commercial fitness equipment to Wyndham affiliates,
including Gorss. To this end, on April 17, 2013, Brigadoon,
through its fax broadcaster, sent a facsimile transmission to
Gorss' subscribed fax line advertising its products.
In August 2012, Brigadoon acquired Hotel Fitness Club, Inc. which
was a party to a Worldwide Sourcing Agreement ("WSA") with
Worldwide Sourcing Solutions, Inc. ("WSSI"), a wholly owned
subsidiary of Wyndham. Together with Wyndham, WSSI provides
support to its franchisees by "negotiating prices, volume
discounts, and commissions for various products and services with
third parties." Through its acquisition of Hotel Fitness,
Brigadoon became a party to the WSA and a Wyndham approved
supplier, allowing it to provide "certain products and/or services
for the benefit of Wyndham and its Affiliates and Participants.
Through this relationship between Wyndham and Brigadoon, Super 8
franchisees, such as Gorss, were able to achieve discounts on the
products and services offered by Brigadoon.
As an approved supplier in the Wyndham Marketing Program, Brigadoon
periodically received spreadsheets from Wyndham containing contact
information, including fax numbers, of Wyndham franchisees. On
April 15, 2013, Wyndham supplied a list to Brigadoon that included
Gorss' facsimile information, among many others. The following
day, Brigadoon utilized a fax broadcaster named WestFax to send the
2013 Fax to Gorss and over 10,000 other recipients.
There is no dispute that the 2013 Fax constituted an advertisement
and describes the commercial availability of Brigadoon's fitness
equipment. There is likewise no dispute that Gorss received the
facsimile on its stand-alone fax machine and that the fax contained
no opt-out provision. Prior to sending the fax, Brigadoon never
communicated with or did business with Gorss. Instead, Brigadoon
relied upon its WSA with Wyndham as permission to send the fax and
did not contact Gorss prior to sending the fax to request
permission to send it.
Presently before the Court are the parties' cross-motions for
summary judgment. Gorss argues that all the requirements for a
claim under the TCPA are satisfied: (1) the 2013 Fax is an
advertisement under the TCPA; (2) it was sent to Gorss using a
telephone facsimile machine, computer, or other device; and (3)
Brigadoon sent the 2013 Fax. Additionally, it asserts that
Brigadoon cannot demonstrate the affirmative defense of prior
express permission or invitation. Thus, Gorss believes that the
Court should enter judgment in its favor and award the minimum
statutory damages of $500 for the single violation of the TCPA.
Brigadoon, in turn, concedes the first three TCPA requirements, but
contends the undisputed facts show that Gorss provided prior
express permission to receive the fax or, at a minimum, it has set
forth genuine issues of material fact as to the affirmative defense
precluding Gorss' motion for summary judgment.
In a nutshell then, the case boils down to a single question: can
Brigadoon establish as a matter of law or raise a genuine issue of
fact that Gorss provided prior express permission to receive the
2013 Fax.
Given Gorss' vigorous pursuit of TCPA violations, there exists much
precedent from which Judge Brady is guided in resolving the
question. Brigadoon relies heavily on the Eleventh Circuit's
decision in Gorss Motels, Inc. v. Safemark Systems, 931 F.3d 1094,
1100 (11th Cir. 2019), and argues that the result in that case
supports its assertion that Gorss provided prior express
permission.
More specifically, Brigadoon claims Safemark aligns perfectly with
the facts and issues in the case and urges the Court to apply the
doctrine of collateral estoppel to adopt the outcome and logic of
Safemark and grant its motion for summary judgment. Not
surprisingly, Gorss opposes this result and argues that while
Safemark may have some issue preclusive effect where the fax at
issue was sent after the 2014 Franchise Agreement, it has no
application where, as in the case, the questionable fax was sent
well before execution of that agreement.
Applying these elements to Safemark, Judge Brady concludes that
Brigadoon has not demonstrated an identity of issues between the
issue litigated and resolved in Safemark and the issue in the
present case as it relates to the 1988 Agreement and its 2009
Amendment--the very agreements in place at the time the 2013 Fax
was sent.
In Safemark, Gorss and another Wyndham franchisee claimed that
Safemark violated the TCPA by sending two unsolicited fax
advertisements, one in 2013 and another in 2015. There, as in the
case, the parties had entered into the 2014 Franchise Agreement and
agreed to the "optional assistance" language as well as the
language that "Wyndham affiliates" may offer products to Gorss.
Based solely upon the language in the 2014 Franchise Agreement, the
Eleventh Circuit concluded that Gorss' "franchise agreements
constitute an 'official act of allowing' Safemark the liberty to
send them faxes." The Safemark court found that Gorss had given
prior express permission for both the 2013 and 2015 fax
transmissions seemingly based upon the 2014 Franchise Agreement in
its opinion.
The case, however, involves a fax transmission before the 2014
Franchise Agreement took shape and before Gorss provided its fax
number in any prior agreement. Judge Brady fails to see how the
2014 Franchise Agreement has any relevance to whether Gorss gave
consent in April 2013 to receive fax advertisements. Moreover, it
is a reasonable proposition that if, as Safemark held, a
"reasonable consumer" would read the language in the 2014 Franchise
Agreement as providing express permission, the absence of such
language from a prior agreement would seemingly lead to the
opposite conclusion--permission was withheld. Thus, the Judge is
hardpressed to conclude that an agreement signed nearly a year and
a half after the 2013 fax transmission in the case can give rise to
the necessary prior express permission required by the TCPA.
The Judge did, however, seemingly give preclusive effect to
Safemark's analysis of the 2014 Agreement by concluding that Gorss
did give prior express permission for a 2015 fax sent by the
Defendant since that fax occurred after the 2014 Agreement took
effect. She rejects the notion that collateral estoppel controls
the outcome in the case, where the basis for the Safemark decision
is an agreement with no applicability to the present disputed
issue.
With respect to Brigadoon's final argument, that Gorss' disclosure
of its fax number on Site Contact Forms in 2010 and 2015, in a
general hotel directory, or while registering for a trade
show/convention permits a finding as a matter of law (or creates a
genuine issue of fact) that Gorss provided prior express permission
in 2013 to receive facsimile advertisements, Judge Brady concludes
otherwise. Accordingly, she denied Brigadoon's Motion for Summary
Judgment asserting the defenses of prior express permission and
collateral estoppel.
Finally, with respect to Gorss' Motion for Summary Judgment, no
genuine dispute of fact exists as to the violation of the TCPA as
Brigadoon conceded the elements of the TCPA claim in its briefing.
As noted, the Defendant cannot as a matter of law establish its
affirmative defense of prior express permission and no genuine
disputes of fact exist. For these reasons, Gorss' Motion for
Summary Judgment is granted.
John Does 1-5 are dismissed. The Clerk is directed to enter
judgment in favor of Gorss Motels and against the Defendant in the
amount of $500, which constitutes the statutory damages to which it
is entitled under the TCPA.
A full-text copy of the Court's Jan. 26, 2021 Opinion & Order is
available at https://tinyurl.com/y66vb536 from Leagle.com.
CANADA: Superior Court Authorizes Parking Meter Class Action
------------------------------------------------------------
Paul Cherry, writing for Montreal Gazette, reports that a Superior
Court judge has authorized a class action suit against the city of
Montreal and Quebec City that should address a question that has
been on the minds of many who use parking meters.
"Is it possible for Stationnement de Montreal and Quebec to allow
what remains from one transaction (on a meter) to carry over to the
next (user)? If yes, why don't they do it," Justice Eric Hardy
wrote in decision that allows for a case, brought against both
cities and Societé en commandite stationnement Montreal, to
proceed as a class action suit.
"Is this abusive? Do municipal regulations allow this?" Those are
two other questions, the judge wrote, that need to be addressed in
the suit.
The two cities and Stationnement de Montreal failed in their bids
to prevent the class action suit. Montreal argued, among other
things, that there is no actual contract between it and the people
who use its parking meters.
The case was initiated by Catherine Bergeron Duchesne, a Quebec
City resident who felt it is unfair that the two cities can charge
a person to park in a spot with a meter if the time is already paid
for by someone who previously had the spot and left early.
The case is being heard at the courthouse in Quebec City.
The suit also claims Montrealers are victims of a specific type of
discrimination because some of its older parking meters still
display the time that is left on them while the newer models do
not.
Bergeron Duchesne, a restaurant owner, is seeking damages and
interest while claiming the municipalities are not respecting their
contractual obligations and make false representations about apps
they offer through which people can pay for a spot remotely. She
alleges that, specifically in Montreal, users of the P$ app were
not told that the app does not inform a user if there was time
remaining on an empty parking spot. In Quebec City, a similar app
named Copilote also does not let users know if there is time
remaining on a parking meter at an empty spot.
The class action suit can include anyone who has used electronic
parking meters since June 15, 2015 "who were not able to benefit
from the time left from the previous user." Bergeron Duchesne is
asking that both cities pay back double whatever amount they have
benefitted from having charged people for the same parking spot
twice.
Hardy ruled that Bergeron Duchesne's request meets all four
criteria to proceed as a class action suit, including that is not
considered frivolous.
He also ordered the cities to cover the costs of publishing notices
informing the public of the class action suit and how people can
become part of it. [GN]
CAPIO PARTNERS: Overshadowing Claims in Anderson FDCPA Suit Tossed
------------------------------------------------------------------
In the case, BRANDY ANDERSON, individually and on behalf of all
others similarly situated Plaintiffs v. CAPIO PARTNERS, LLC, CF
MEDICAL, LLC, and JOHN DOES 1-25, Defendants, Case No.
7:20-cv-00298 (W.D. Va.), Judge Elizabeth K. Dillon of the U.S.
District Court for the Western District of Virginia, Roanoke
Division, granted in part and denied in part Capio Partners, LLC
and CF Medical, LLC's corrected joint motion to dismiss the
Plaintiffs' class action complaint.
Plaintiff Anderson, on behalf of herself and others similarly
situated, claims that the Defendants violated the Fair Debt
Collection Practices Act ("FDCPA") when they sent her a collection
letter offering a reduced payment to settle her debt. Anderson
claims that the collection letter was misleading and that the
settlement offer overshadowed information about her right to
contest the debt.
On Aug. 20, 2019, Defendant Capio, a debt collection company, sent
Anderson a letter regarding an alleged debt that she owed to
Palestine Regional Medical Center. Palestine Regional is now owned
by Defendant CF Medical who contracted with Capio to collect the
debt
The collection letter notified Anderson that she owed $248.40 to CF
Medical and that Capio was responsible for collection. The
collection letter made Anderson "a special offer" to settle her
debt. It also informed Anderson of her right to contest the debt.
On May 26, 2020, Anderson filed a class action complaint, alleging
that the Defendants violated the FDCPA by: (1) making false and
misleading representations in their collection letter in violation
of 15 U.S.C. Section 1692e; (2) offering a settlement plan that was
available for a period of time less than the 30-day debt dispute
period in violation of 15 U.S.C. Section 1692f; and (3)
overshadowing the disclosure of the consumer's right to contest the
debt in violation of 15 U.S.C. Section 1692g.
On June 24, 2020, Defendants Capio and CF Medical filed a joint
motion to dismiss for failure to state a claim. They argue that
the fact that an offer to settle expires within the Dispute Period
does not provide evidence of overshadowing and the letter does not
leave the consumer uncertain of her rights to contest the debt.
They also argue that because the letter states, "this offer and the
deadline for accepting it do not in any way affect your right to
dispute this debt," that even the least sophisticated consumer
would not be confused as to her right to dispute the debt.
On Aug. 7, 2020, Anderson filed a response in opposition to the
motion to dismiss. Anderson likens the collection letter to a
demand letter and argues that "an unsophisticated consumer would
likely believe that setting up payment arrangements would act as a
waiver of the right to dispute the debt." She Anderson also argues
that the notice of her right to dispute the debt was misleading
because it "does not explain how the consumer's debt validation
rights would be impacted, if at all, by accepting the settlement
offer." Finally, Anderson objects to the format of the letter
because it emphasizes certain information on the front page while
relegating the consumer's rights to the back page.
On Aug. 21, 2020, the Defendants filed a joint reply in support of
their motion to dismiss. They again argue that the collection
letter does not leave the consumer uncertain of her rights to
contest the debt. On Oct. 2, 2020, the Defendants filed
supplemental authority in support of their motion to dismiss.
Though styled as three counts, the Plaintiff argues that the
Defendants violate the FDCPA in two ways: (1) the Defendants'
settlement offer that expired during the 30-day dispute period
overshadowed the Plaintiff's right to dispute the debt (counts two
and three); and (2) the Defendants' made false, deceptive, or
misleading representations in connection with the collection of the
debt (count one).
As to counts two and three, Judge Dillon opines that the collection
letter provides Anderson with the statutorily required notice and
makes her a settlement offer that expires during the 30-day dispute
window. Although the Plaintiff attempts to frame the collection
letter as "a clear-cut case of `demanding payment' within the
30-day debt validation period," the letter does not demand
immediate payment or payment-in-full before 30 days. Instead, it
is akin to that described in Hanks v. Shafer Law Firm, PC, No.
2:19CV428, 2019 WL 6834319, at *5 (E.D. Va. Nov. 14, 2019), in
which the settlement offer does not overshadow otherwise proper
notice simply because it expires during the debt dispute period.
Since the settlement offer alone cannot overshadow Capio's
otherwise proper notice, and Anderson makes no other overshadowing
claims in the complaint, the Judge dismissed Anderson's
overshadowing claims and granted the Defendants' motion to dismiss
as to counts two and three.
As to count one, the Judge finds that the second sentence of the
collection letter explicitly describes Anderson's rights if she
rejects the settlement offer. However, the letter does not
explicitly describe Anderson's rights if she accepts the settlement
offer. Anderson has pled sufficient facts to state a claim as to
misleading statements in violation of 15 U.S.C. Section 1692e
because, read as a whole, the least sophisticated consumer may
reasonably believe that she may have no dispute rights if she
accepts the settlement because Capio did not describe her dispute
rights if she were to accept the settlement. Therefore, the Judge
denied the Defendants' motion to dismiss as to count one.
Judge Dillon will enter an order granting in part the Defendants'
corrected motion to dismiss as to counts two and three, and denying
in part the motion as to count one.
A full-text copy of the Court's Jan. 26, 2021 Memorandum Opinion is
available at https://tinyurl.com/y2s3leck from Leagle.com.
CAPSTONE GROUP: Faces Rivera Suit Over Unwanted Text Messages
-------------------------------------------------------------
MISMA RIVERA, individually and on behalf of all others similarly
situated v. THE CAPSTONE GROUP SOUTHERN LLC D/B/A RETRO FITNESS OF
COOPER CITY, Case No. CACE-21-001711 (Fla. Cir., Broward Cty., Jan.
26, 2021), contends that the Defendant promotes and markets its
merchandise, in part, by sending unsolicited text messages to
wireless phone users, in violation of the Telephone Consumer
Protection Act.
The Defendant operates as a fitness center in Cooper City, Florida.
The Defendant engages in unsolicited telemarketing directed towards
prospective customers with no regard for consumers' privacy
rights.
The Plaintiff brings this action for statutory damages and other
legal and equitable remedies resulting from the unlawful actions of
the Defendant in transmitting advertising and telemarketing text
messages to her cellular telephone and the cellular telephones of
numerous other similarly situated persons using an automatic
telephone dialing system ("ATDS") and without anyone's prior
express written consent, in violation of the TCPA.[BN]
The Plaintiff is represented by:
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
- and -
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, FL 33301
Telephone: (954) 533-4092
E-mail: MEisenband@Eisenbandlaw.com
CARNIVAL CORP: Bid to Nix Consolidated Putative Class Suit Pending
------------------------------------------------------------------
Carnival Corporation said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on January 26, 2021, for
the fiscal year ended November 30, 2020, that the motion to dismiss
the consolidated purported class action suit headed by the New
England Carpenters Pension and Guaranteed Annuity Fund, is
pending.
On May 27, 2020, Service Lamp Corporation Profit Sharing Plan filed
a purported class action against Carnival Corporation, Arnold W.
Donald and David Bernstein on behalf of all purchasers of Carnival
Corporation securities between January 28 and May 1, 2020.
On June 3, 2020, John P. Elmensdorp filed a purported class action
against the same defendants, and included Micky Arison as a
defendant. This action is on behalf of all purchasers of Carnival
Corporation securities between September 26, 2019 and April 30,
2020.
These actions allege that the defendants violated Sections 10(b)
and 20(a) of the U.S. Securities and Exchange Act of 1934 by making
misrepresentations and omissions related to Carnival Corporation's
COVID-19 knowledge and response, and seek to recover unspecified
damages and equitable relief for the alleged misstatements and
omissions.
On July 21, 2020, Abraham Atachbarian filed a purported class
action against the same defendants as the Elmensdorp action. The
Atachbarian action is on behalf of all purchasers of Carnival
Corporation options between January 27 and May 1, 2020 and alleges
the same set of factual theories presented in the class actions
described.
These three cases have been consolidated with a new lead plaintiff,
the New England Carpenters Pension and Guaranteed Annuity Fund and
the Massachusetts Laborers' Pension and Annuity Fund, and a
consolidated class action complaint was filed on December 15, 2020,
which also removed Micky Arison and David Bernstein as defendants.
A motion to dismiss was filed on January 18, 2021.
Carnival Corporation owns and operates cruise ships offering
cruises to all major vacation destinations including North America,
United Kingdom, Germany, Southern Europe, South America, and Asia
Pacific. The Company, through a subsidiary also owns and operates
hotels and lodges.
CARNIVAL CORP: Interlocutory Appeal in Karpik Suit Pending
----------------------------------------------------------
Carnival Corporation said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on January 26, 2021, for
the fiscal year ended November 30, 2020, that an interlocutory
appeal has been filed in the purported class action suit initiated
by Susan Karpik.
On July 23, 2020, Susan Karpik, a former guest from Ruby Princess
filed a purported class action against Carnival plc and Princess
Cruises in the Federal Court of Australia
On December 14, 2020, the company filed an interlocutory appeal.
Carnival Corporation owns and operates cruise ships offering
cruises to all major vacation destinations including North America,
United Kingdom, Germany, Southern Europe, South America, and Asia
Pacific. The Company, through a subsidiary also owns and operates
hotels and lodges.
CARNIVAL CORP: O'Neill Putative Class Suit Stayed
-------------------------------------------------
Carnival Corporation said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on January 26, 2021, for
the fiscal year ended November 30, 2020, that the purported class
action suit initiated by Kathleen O'Neill, has been stayed.
On July 13, 2020, Kathleen O'Neill, a former guest from Coral
Princess filed a purported class action in the U.S. District Court
for the Central District of California against Princess Cruises,
Carnival Corporation, and Carnival plc.
The company had filed a motion to dismiss.
This case is currently stayed and is pending resolution of the
appeal by the plaintiffs in the Grand Princess class action of the
court's denial of the plaintiffs' motion for class certification,
Archer et al v. Carnival Corporation and plc et al.
Carnival Corporation owns and operates cruise ships offering
cruises to all major vacation destinations including North America,
United Kingdom, Germany, Southern Europe, South America, and Asia
Pacific. The Company, through a subsidiary also owns and operates
hotels and lodges.
CARNIVAL CORP: Ruby Princess Former Guests' Suit Underway
---------------------------------------------------------
Carnival Corporation said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on January 26, 2021, for
the fiscal year ended November 30, 2020, that the purported class
action suit against Princess Cruise Lines, Ltd., is ongoing.
On June 4, 2020, numerous former guests from Ruby Princess filed a
purported class action against Princess Cruise Lines, Ltd.
Princess Cruises filed a motion to dismiss, in response to which
the plaintiffs amended their action to remove their class action
allegations and seek recovery on behalf of two guests who allege
that they contracted COVID-19 while on Ruby Princess.
Princess Cruises filed a motion to dismiss the amended complaint.
On October 12, 2020, plaintiffs filed a second amended complaint,
to which Princess Cruises filed an answer on October 26, 2020.
Carnival Corporation owns and operates cruise ships offering
cruises to all major vacation destinations including North America,
United Kingdom, Germany, Southern Europe, South America, and Asia
Pacific. The Company, through a subsidiary also owns and operates
hotels and lodges.
CARPENTER DESIGN: Ruppe et al. Seek Builders' Unpaid OT Wages
-------------------------------------------------------------
CHRISTOPHER RUPPE, and WILLIAM TONEY, on behalf of themselves and
those similarly situated, Plaintiffs v. CARPENTER DESIGN, INC.,
Defendant, Case No. 1:21-cv-00024 (W.D.N.C., January 27, 2021)
alleges the Defendant of violation of the Fair Labor Standards
Act.
The Plaintiffs have worked for the Defendant as builders in
Rutherford, North Carolina. Plaintiff Ruppe started working from
approximately May 2018 to February 2019, while Plaintiff Toney was
from approximately May 2018 to October 2018. The Plaintiffs contend
that the Defendant failed to pay them overtime compensation at one
and one-half times their regular rate of pay for hours they worked
over 40 in a workweek.
On behalf of themselves and those similarly situated builders, the
Plaintiffs demand judgment against the Defendant for the payment of
all overtime hours at the applicable overtime rate, as well as
liquidated damages, reasonable attorneys' fees and litigation
costs, declaratory relief, and any and all further relief that the
Court determines to be just and appropriate.
Carpenter Design, Inc. provide a wood waste removal service. [BN]
The Plaintiffs are represented by:
Adam A. Smith, Esq.
RIDDLE & BRANTLEY, LLP
P.O. Box 11050
Goldsboro, NC 27532-1050
Tel: (919) 432-1516
Fax: (919) 432-1751
E-mail: aas@justicecounts.com
CD PROJEKT: Bragar Eagel & Squire Reminds of February 22 Deadline
-----------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of CD Projekt S.A. (Other OTC:
OTGLY, OTGLF), SolarWinds Corporation (NYSE: SWI), QuantumScape
Corporation (NYSE: QS), and Tricida, Inc. (NASDAQ: TCDA).
Stockholders have until the deadlines below to petition the court
to serve as lead plaintiff. Additional information about each case
can be found at the link provided.
CD Projekt S.A. (Other OTC: OTGLY, OTGLF)
Class Period: January 16, 2020 to December 17, 2020
Lead Plaintiff Deadline: February 22, 2021
For several years, the Company had been devoting substantially all
its resources to the development of Cyberpunk 2077, which the
Company described as a "open world, narrative-driven role-playing
game."
The Company launched Cyberpunk 2077 on December 10, 2020. Consumers
soon discovered that the Current-Generation Console versions of
Cyberpunk 2077 were error-laden and difficult to play. IGN
published a scathing review, stating that the Console versions
"fail[] to hit even the lowest bar of technical quality one should
expect even when playing on lower-end hardware. [Cyberpunk 2077]
performs so poorly that it makes combat, driving, and what is
otherwise a master craft of storytelling legitimately difficult to
look at."
Following the release, the Company's ADRs fell from its close of
$27.68 on December 9, 2020 to close at $20.75 on December 14, 2020,
a drop of $6.93 or 25% over 3 trading days, damaging investors.
Over that same period, CD Projekt's common share (OTGLF) price fell
$21.65 per share, or 20.1%, to close at $86.00 on December 14,
2020.
Then, on December 18, 2020, Sony issued a statement via the
Playstation website that it would "offer a full refund for all
gamers who have purchased Cyberpunk 2077 via PlayStation Store" and
"be removing Cyberpunk 2077 from PlayStation Store until further
notice." Microsoft also announced that it would offer refunds for
the game. That same day, the Company stated that Sony's decision to
"temporarily suspend" sales of the game came after a discussion
with the Company.
On this news, CD Projekt's ADR (OTGLY) price fell $3.44 per share,
or 15.8%, to close at $18.50 per ADR on December 18, 2020, damaging
investors. CD Projekt's common share (OTGLF) price fell $9.20 per
share, or 10.45%, to close at $78.80 on December 18, 2020.
The complaint, filed on December 24, 2020, alleges that defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Cyberpunk 2077 was virtually
unplayable on the current-generation Xbox or Playstation systems
due to an enormous number of bugs; (2) as a result, Sony would
remove Cyberpunk 2077 from the Playstation store, and Sony,
Microsoft and CD Projekt would be forced to offer full refunds for
the game; (3) consequently, CD Projekt would suffer reputational
and pecuniary harm; and (4) as a result, defendants' statements
about its business, operations, and prospects, were materially
false and misleading and/or lacked a reasonable basis at all
relevant times. When the true details entered the market, the
lawsuit claims that investors suffered damages.
For more information on the CD Projekt class action go to:
https://bespc.com/cases/CDProjekt
SolarWinds Corporation (NYSE: SWI)
Class Period: February 24, 2020 to December 15, 2020
Lead Plaintiff Deadline: March 5, 2021
On December 15, 2020, Reuters published an article stating that,
last year, security researcher Vinoth Kumar "alerted the company
that anyone could access SolarWinds' update server by using the
password 'solarwinds123.'" The article also disclosed that,
according to Kyle Hanslovan, the cofounder of Maryland-based
cybersecurity company Huntress, "days after SolarWinds realized
their software had been compromised, the malicious updates were
still available for download."
On this news, the Company's shares fell $1.56 per share or 8% to
close at $18.06 per share on December 15, 2020.
The complaint, filed on January 4, 2021, alleges that defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) since mid-2020, SolarWinds
Orion monitoring products had a vulnerability that allowed hackers
to compromise the server upon which the products ran; (2)
SolarWinds' update server had an easily accessible password of
'solarwinds123'; (3) consequently, SolarWinds' customers,
including, among others, the Federal Government, Microsoft, Cisco,
and Nvidia, would be vulnerable to hacks; (4) as a result, the
Company would suffer significant reputational harm; and (5) as a
result, Defendants' statements about SolarWinds's business,
operations and prospects were materially false and misleading
and/or lacked a reasonable basis at all relevant times.
For more information on the SolarWinds class action go to:
https://bespc.com/cases/SWI
QuantumScape Corporation (NYSE: QS)
Class Period: November 27, 2020 to December 31, 2020
Lead Plaintiff Deadline: March 8, 2021
On January 4, 2021, an article was published on Seeking Alpha
pointing to several risks with QuantumScape's solid-state batteries
that make it "completely unacceptable for real world field electric
vehicles." Specifically, it stated that the battery's power means
it "will only last for 260 cycles or about 75,000 miles of
aggressive driving." As solid-state batteries are temperature
sensitive, "the power and cycle tests at 30 and 45 degrees above
would have been significantly worse if run even a few degrees
lower."
On this news, the Company's stock price fell $34.49, or
approximately 40.84%, to close at $49.96 per share on January 4,
2021.
The complaint, filed on January 5, 2021, alleges that throughout
the Class Period defendants made materially false and/or misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, defendants failed to disclose to investors: (1) that
the Company's purported success related to its solid-state battery
power, battery life, and energy density were significantly
overstated; (2) that the Company is unlikely to be able to scale
its technology to the multi-layer cell necessary to power electric
vehicles; and (3) that, as a result of the foregoing, defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
For more information on the QuantumScape class action go to:
https://bespc.com/cases/QS
Tricida, Inc. (NASDAQ: TCDA)
Class Period: September 4, 2019 to October 28, 2020
Lead Plaintiff Deadline: March 8, 2021
Tricida is a pharmaceutical company that focuses on the development
and commercialization of its drug candidate, veverimer (TRC101), a
non-absorbed, orally administered polymer designed as a potential
treatment for metabolic acidosis in patients with CKD. Tricida has
completed a Phase 3, double-blind, placebo-controlled trial of
veverimer in patients with CKD and metabolic acidosis.
On September 4, 2019, Tricida announced that it had submitted a New
Drug Application ("NDA") to the U.S. Food and Drug Administration
("FDA") under the Accelerated Approval Program for approval of
veverimer for the treatment of metabolic acidosis in patients with
CKD.
On July 15, 2020, Tricida issued a press release announcing that,
on July 14, 2020, the Company received a notification from the FDA,
stating that as part of the FDA's ongoing review of the Company's
NDA for veverimer, "the FDA has identified deficiencies that
preclude discussion of labeling and post marketing
requirements/commitments at this time." Tricida stated that "[t]he
notification does not specify the deficiencies identified by the
FDA."
On this news, Tricida's stock price fell $10.56 per share, or
40.31%, to close at $15.64 per share on July 16, 2020.
Then, on October 29, 2020, Tricida announced an update on its
End-of-Review Type A meeting with the FDA regarding the veverimer
NDA, advising investors that the Company "now believes the FDA will
also require evidence of veverimer's effect on CKD progression from
a near-term interim analysis of the VALOR-CKD trial for approval
under the Accelerated Approval Program and that the FDA is unlikely
to rely solely on serum bicarbonate data for determination of
efficacy." Concurrently, Tricida disclosed that it "is
significantly reducing its headcount from 152 to 59 people and will
discuss its commitments with vendors and contract service providers
to potentially provide additional financial flexibility."
On this news, Tricida's stock price fell $3.90 per share, or
47.16%, to close at $4.37 per share on October 29, 2020.
The complaint, filed on January 6, 2021, alleges that throughout
the Class Period defendants made materially false and misleading
statements, and failed to disclose material adverse facts about the
Company's business, operational, and compliance policies.
Specifically, defendants made false and/or misleading statements
and failed to disclose to investors that: (i) Tricida's NDA for
veverimer was materially deficient; (ii) accordingly, it was
foreseeably likely that the FDA would not accept the NDA for
veverimer; and (iii) as a result, the Company's public statements
were materially false and misleading at all relevant times.
For more information on the Tricida class action go to:
https://bespc.com/cases/TCDA
About Bragar Eagel & Squire, P.C.
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
CHEYENNE MEDICAL: Faces Quintero Suit Over Unwanted Text Messages
-----------------------------------------------------------------
ROSALINDA QUINTERO, individually and on behalf of all others
similarly situated v. CHEYENNE MEDICAL LLC d/b/a THRIVE CANNABIS
MARKETPLACE, a Nevada limited liability company, Case No.
5:21-cv-00156 (C.D. Cal., Jan. 27, 2021) contends that the
Defendant promotes and markets its merchandise, in part, by sending
unsolicited text messages to wireless phone users, in violation of
the Telephone Consumer Protection Act.
According to the complaint, to promote its services, Defendant
engages in aggressive unsolicited marketing, harming thousands of
consumers in the process.
The Plaintiff seeks injunctive relief to halt the Defendant's
illegal conduct, which has resulted in the invasion of privacy,
harassment, aggravation, and disruption of the daily life of
thousands of individuals. The Plaintiff also seeks statutory
damages on behalf of herself and members of the Class, and any
other available legal or equitable remedies.
The Defendant is a cannabis dispensary.[BN]
The Plaintiff is represented by:
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
1925 Century Park E No. 1700
Los Angeles, CA 90067
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
- and -
Joshua Moyer, Esq.
SHAMIS & GENTILE, P.A.
401 W A Street, Suite 200
San Diego, CA 92101
Telephone: (305) 479-2299
E-mail: jmoyer@shamisgentile.com
CHURCHILL DOWNS: Judge Philips to Determine Final Claims in Kater
-----------------------------------------------------------------
In the cases, CHERYL KATER and SUZIE KELLY, individually and on
behalf of all others similarly situated, Plaintiffs v. CHURCHILL
DOWNS INCORPORATED, a Kentucky corporation, and BIG FISH GAMES,
INC., a Washington corporation, Defendants. MANASA THIMMEGOWDA,
individually and on behalf of all others similarly situated,
Plaintiffs v. BIG FISH GAMES, INC., a Washington corporation;
ARISTOCRAT TECHNOLOGIES INC., a Nevada corporation; ARISTOCRAT
LEISURE LIMITED, an Australian corporation; and CHURCHILL DOWNS
INCORPORATED, a Kentucky corporation, Defendants. SEAN WILSON,
individually and on behalf of all others similarly situated,
Plaintiff v. PLAYTIKA LTD, an Israeli limited company, and CAESARS
INTERACTIVE ENTERTAINMENT, LLC, a Delaware limited liability
company, Defendants. SEAN WILSON, individually and on behalf of all
others similarly situated, Plaintiff v. HUUUGE, INC., a Delaware
corporation, Defendant, Case Nos. 15-cv-00612-RSL, 19-cv-00199-RSL,
18-cv-5277-RSL, 18-cv-05276-RSL (W.D. Wash.), Judge Robert S.
Lasnik of the U.S. District Court for the Western District of
Washington, Seattle, delegated the authority to make final and
binding decisions on challenges regarding the validity or amount of
any particular claim, and to calculate the final payable amount of
all claims, to Judge Layn R. Phillips.
The Settlement Agreements in these cases confer upon the Settlement
Administrators the authority to make final and binding decisions on
challenges regarding the validity or amount of any particular
claim, and--consistent with the Plans of Allocation--to calculate
the final payable amount of all claims. But given the scale,
nature, and complexity of some individual class members' claims,
the Parties and the Settlement Administrators have agreed, subject
to Court approval, to delegate that authority ("Final Claims
Determinations") to the Honorable Layn R. Phillips (Fmr.) of
Phillips ADR.
Provided the Court grants their motion, Judge Phillips has agreed
to make the Final Claims Determinations. Because Judge Phillips
already successfully mediated each of the settlements, he is the
ideal candidate to fulfill the role. In addition, a member of
Judge Phillips' mediation staff has over twenty years' experience
in the class action space, including having previously served as a
Vice President at a respected claims administrator that was
headquartered in Seattle, Washington. Moreover, after consulting
with Class Counsel, Judge Phillips has already agreed to implement
a set of modest procedures, enumerated in the attached [Proposed]
Order, to efficiently make all Final Claims Determinations. And
while Judge Phillips and his staff will be reimbursed at their
regular hourly rates by the Settlement Funds, the Class Counsel do
not anticipate that will materially impact class member recoveries,
given that the Settlement Administrators will no longer need to
make Final Claims Determinations (nor, in turn, will they be
reimbursed by the Settlement Funds for doing so).
Consequently, the Parties respectfully request that the Court
enters an order, approving of Judge Phillips' role making Final
Claims Determinations and ability to be fairly reimbursed by the
Settlement Funds for fulfilling that role.
Judge Lasnik granted the Parties' stipulated motion. He ordered
that the Honorable Layn R. Phillips (Fmr.) of Phillips ADR will
make all Final Claims Determinations.
Specifically, Judge Phillips will:
a. Determine and work with the Settlement Administrators to
implement a process by which each claimant will be informed of the
Settlement Administrators' initial determination as to claimant's
claim validity, Lifetime Spending Amount and, where applicable,
Claim Type (i.e., DRP or GLBA versus Non-DRP or GLBA), and that the
claimant has the right within 21 calendar days of receipt of that
notice to challenge that initial determination;
b. Determine and work with the Settlement Administrators, the
Class Counsel, and the Defendants' counsel to implement a process
by which any claimant will be able to challenge the Settlement
Administrators' initial determination as to claim validity
(including any late claims), Lifetime Spending Amount and, where
applicable, Claim Type;
c. Allow, as to any challenges to the Settlement
Administrators' initial determination as to claim validity, amount,
or type, the Settlement Administrators to first confer with the
claimant to explain the determination in an effort to resolve the
challenge;
d. With respect to any unresolved challenges, finally resolve
any challenges to the Settlement Administrators' initial
determinations as to claim validity, Lifetime Spending Amount, and
Claim Type;
e. To the extent deemed appropriate and necessary by Judge
Phillips, retain one or more claims administration consultants to
review the Settlement Administrators' models and programming for
accuracy and to suggest any necessary corrections which will, in
the first instance be reviewed by the Class Counsel, and then if
any issues as to the models and programming remains, be recommended
to Judge Phillips, who has the non-appealable final binding
decision-making authority;
f. Finally determine the amount of each valid claim,
consistent with the Plan of Allocation; and
g. Determine whether any portion of the Settlement Funds
should be held back as Reserve Funds to address any unforeseen
circumstances within the claims processes, and if so, work with the
Settlement Administrators to implement the distribution of the
Reserve Funds to approved claimants.
For the avoidance of doubt, Judge Phillips will have no authority
to increase the size of any Settlement Fund, to seek or order
additional discovery from the Defendants, nor to otherwise impact
any Defendants' liability or other obligations under the Settlement
Agreements.
Judge Phillips' regular hourly rates, as well as the regular hourly
rates of any Phillips ADR staff Judge Phillips may choose to assist
with the Final Claims Determinations, along with any authorized
consultants retained as deemed appropriate in Judge Phillips'
discretion, will be paid from the Settlement Funds. Fees will be
billed to a particular Settlement and paid from that particular
Settlement Fund.
Finally, Judge Phillips will be provided, and will treat as
Confidential under the protective orders entered in these cases,
any documents or information previously provided to or under the
control of the Settlement Administrators.
A full-text copy of the Court's Jan. 26, 2021 Order is available at
https://tinyurl.com/y2pjfsgr from Leagle.com.
CLUB EXPLORIA: Moore's Bid for Sanctions in TCPA Suit Partly Okayed
-------------------------------------------------------------------
In the case, GEORGE MOORE on behalf of himself and others similarly
situated, Plaintiff v. CLUB EXPLORIA, LLC, Defendant, Case No.
19-cv-2504 (N.D. Ill.), Magistrate Judge Sunil R. Harjani of the
U.S. District Court for the Northern District of Illinois, Eastern
Division, granted in part and denied in part the Plaintiff's
Opposed Motion for Sanctions.
In the putative class action, Plaintiff Moore alleges that
Defendant Club Exploria violated the Telephone Consumer Protection
Act ("TCPA") by causing telemarketing phone calls to be placed to
his telephone without his consent. Club Exploria asserts that it
contracted with a vendor to place TCPA-compliant calls only, and
that the sub-vendor who placed the phone calls at issue apparently
had consent from an individual named Donald Jorgensen to call the
subject number.
According to Club Exploria, its investigation in the case revealed
that Donald Jorgensen and Patricia Jorgenson were associated with
Moore's phone number as recently as September 2020. As a result,
J. David Washburn, an attorney at the law firm of Katten Muchin
Rosenman LLP, the counsel for Club Exploria, called Moore's alleged
phone number to test the research indicating that Donald Jorgensen,
and not Moore, would answer the call.
Mr. Moore ultimately picked up the phone on Oct. 27, 2020. Moore
states that at approximately 12:12 p.m., he received a call from a
Private number. Moore answered, and a man indicated he was trying
to reach someone named Don. He informed the caller that there was
no one named Don at the number and asked who was calling. The
caller responded, David Washburn. Moore then asked Washburn if Don
had provided the number to Washburn recently, and Washburn
responded affirmatively. He told Washburn that the phone number
had been assigned to Moore for nearly 20 years. Washburn asked who
he was speaking with, and Moore identified himself as George Moore.
Moore asked Washburn what company he is with and Washburn
responded that he was not with any company and was just an
individual. He asked Washburn again if Don had provided the number
to him recently, and Washburn responded affirmatively again. The
call concluded shortly thereafter.
After the call, Moore performed a caller ID lookup for the number
and learned the name associated with the number was "J David
Washburn," an attorney at Katten. Moore informed his counsel, who
later emailed the counsel for Club Exploria to inquire about the
phone call.
In the responding email, the counsel for Club Exploria gave the
following account of the October 27, 2020 phone call: "We got an
expert report on the 27th indicating the number on which your
client claims he got calls is owned by or used by another
individual named Don. David called the number and apparently your
client answered. David asked for Don and your client responded
that he is not Don. Your client asked who was calling and David
truthfully gave his name. David said the number is supposed to be
for Don and your client stated it is his number and his name is not
Don. He identified himself and David apologized and said good bye.
David did not ask him questions and certainly did not discuss the
case. He was merely trying to verify the report we received that
the number is associated with Don, not your client."
At a hearing with the Court on Jan. 6, 2021, the counsel for Club
Exploria represented that while Moore's recitation of the call was
accurate, Washburn could not remember all of the specifics of the
phone call. The counsel further stated that because Club Exploria
did not have affirmative evidence to refute Moore's recollection of
the phone call, Club Exploria has accepted Moore's version for
purposes of the sanctions motion.
Mr. Moore has moved for sanctions in light of the Oct. 27, 2020
phone call. Moore asserts that the phone call violated ABA Model
Rule 4.2, the so-called "anti-contact" rule, and requests that the
Court consequently: (1) disqualifies Katten from representing Club
Exploria in the action; and (2) orders Katten to produce "all of
its work product concerning Don Jorgensen's alleged use or
ownership of the Subject Telephone Number." Club Exploria responds
that Washburn's brief phone call did not violate Rule 4.2 and that
disqualification and work product production are inappropriate
remedies, as Moore suffered no prejudice as a result of the phone
call. Doc.
Magistrate Judge Harjani finds that Washburn violated Rule 4.2.
While his phone call with Moore was brief, Washburn purposefully
called a number that was repeatedly disclosed in the litigation as
Moore's phone number, without the consent of Moore's counsel.
Then, even after Moore identified himself on the call, Washburn
continued the conversation and made misstatements about who he was
and about Donald Jorgensen, a figure central to Club Exploria's
theory of the case. That being said, disqualification and the
production of attorney work product is too severe a sanction. The
Magistrate Judge finds that the lesser sanction of an award of the
fees and costs associated with the motion is the appropriate
remedy.
For these reasons, Magistrate Judge Harjani granted in part and
denied in part the Plaintiff's Opposed Motion for Sanctions. Club
Exploria's counsel is ordered to pay for the attorneys' fees and
costs incurred by Moore in bringing the motion.
A full-text copy of the Court's Jan. 26, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/yyhsey52 from
Leagle.com.
CONOPCO INC: Bernstein Sues Over Mislabeled Vanilla Ice Cream
-------------------------------------------------------------
HEATHER BERNSTEIN, individually and on behalf of all others
similarly situated, Plaintiff v. CONOPCO, INC., Defendant, Case No.
1:21-cv-10160 (D. Mass., Jan. 29, 2021) is an action alleging the
Defendant's deceptive labeling, marketing, and sale of its "Breyers
Delights Vanilla Bean Low Fat Ice Cream" ("Products").
The Plaintiff alleges in the complaint that the Defendant has
misled the Plaintiff and reasonable consumers to believe the
Product contains vanilla beans as the ingredient that provides for
the Product's characterizing vanilla flavor. Instead, the Product
is flavored by "natural flavor" that provides for the Product's
characterizing vanilla flavor, the suit says.
The Defendant deceives the Plaintiff and the Class into believing
that the Product contains vanilla as its characterizing ingredient,
in the form of vanilla bean seeds from the vanilla bean pod portion
of the vanilla orchid plant. Allegedly, Defendant's labeling its
Product as if it contains vanilla beans as an ingredient, without
reference to any wording that would inform reasonable consumers
that the Product does not contain vanilla beans, is deceptive,
misleading, and unjust.
Conopco, Inc., doing business as Unilever, provides personal care
products. The Company offers perfumes, soaps, and shampoos, as well
as food products. [BN]
The Plaintiff is represented by:
John T. Longo, Esq.
LAW OFFICE OF JOHN T. LONGO
177 Huntington Avenue, 17th Fl, Suite 5
Boston, MA 02115
Telephone: (617) 863-7550
E-mail: jtlongo@jtlongolaw.com
-and-
Peter N. Wasylyk, Esq.
LAW OFFICES OF PETER N. WASYLYK
1307 Chalkstone Avenue
Providence, RI 02908
Telephone: (401) 831-7730
Facsimile: (401) 861-6064
E-mail: pnwlaw@aol.com
COVIA HOLDINGS: Faces Baron Suit Over Drop in Share Price
---------------------------------------------------------
SERGIO BARON, individually and on behalf of all others similarly
situated, Plaintiff v. JENNIFFER D. DECKARD; MARK E. BARRUS;
MICHAEL F. BIEHL; ANDREW D. EICH; and RICHARD A. NAVARRE,
Defendants, Case No. 1:21-cv-00238 (N.D. Ohio, Jan. 29, 2021) is a
class action on behalf of persons and entities that purchased or
acquired Covia Holdings Corporation ("Covia") f/k/a Fairmount
Santrol Holdings Inc., a securities between March 15, 2016 and
June 29, 2Q20, inclusive (the "Class Period"), seeking to pursue
claims against the Defendants under the Securities Exchange Act of
1934 (the `Exchange Act").
According to the complaint, on June 29, 2020, after the market
closed, the Company announced that it had entered into a
comprehensive restructuring agreement and voluntarily filed
petitions under Chapter 11 of the United States Bankruptcy Code. On
June 30, 2020, the NYSE delisted the Company, stating that "the
Company is no longer suitable for listing" after the announcement
that it was filing for bankruptcy. On this news, the Company's
share price fell $0.18, or 37.5%, from a close of $0.48 per share
on June 29, 2020 to the open on the OTC on July 1, 2020 at $0.30
per share.
Throughout the Class Period, the Defendants made materially false
and misleading statements, as well as failed to disclose material
adverse facts about the Company's business, operations, and
prospects. Specifically, the Defendants failed to disclose to
investors that: (1) the Company's proprietary 'value-added'
proppants were not necessarily more effective than ordinary sand,
(2) the Company's revenues, which were dependent on its proprietary
'value added' proppants, was based on misrepresentations; (3) when
Company insiders raised this issue, the Defendants did not take
meaningful steps to rectify the issue; and (4} that, as a result of
the foregoing, the Defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and lacked a reasonable basis, the suit says.
Covia Holdings Corporation provides metal mining services. The
Company produces low-iron nepheline syenite for glass, ceramics,
paints, and plastics, as well as offers quartz proppants for oil
and natural gas simulation and recovery. [BN]
The Plaintiff is represented by:
Richard S. Wayne, Esq.
Robert R. Sparks, Esq.
Jeffrey A. Levine, Esq.
STRAUSS TROY CO., LPA
150 East Fourth Street, 4th Floor
Cincinnati, OH 45202
Telephone: (513) 21-2120
Facsimile: (513) 241-8259
E-mail: rswayne@strausstroy.com
rrsparks@straus stroy. com
-and-
Robert V. Prongay, Esq.
Charles H. Linehan, Esq.
GLANCY PRONGAY & HURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-91 SO
Facsimile: (310) 201-9160
-and-
Lesley Portnoy, Esq.
THE PORTNOY LAW FIRM:
1800 Century Park East, Suite 600
Los Angeles, CA 90067
Telephone: (310) 692-8883
E-mail: Lesley@portnoylaw.com
D&G TRANSMISSION: Underpays Auto Repair Shop Workers, Szwed Claims
------------------------------------------------------------------
JEFF SZWED and TIMOTHY GRAVITT, individually and on behalf of all
others similarly situated, Plaintiffs v. D&G TRANSMISSION AND AUTO
REPAIR, INC. and GORDON CAMERON, Defendants, Case No. 1:21-cv-00477
(N.D. Ill., January 27, 2021) is a class action against the
Defendants for violations of the Fair Labor Standards Act, the
Illinois Minimum Wage Law, and the Illinois Wage Payment and
Collections Act, and for common law assault and battery.
According to the complaint, the Defendants failed to compensate the
Plaintiffs and all others similarly situated workers overtime pay
for all hours worked in excess of 40 hours in a workweek.
The Plaintiffs helped service vehicles and rebuild transmissions
for trucks and cars that were brought to the Defendants'
transmission store in Lockport, Illinois for the past three years.
D&G Transmission and Auto Repair, Inc. is an owner and operator of
a transmission and auto repair shop in Lockport, Illinois. [BN]
The Plaintiffs are represented by:
David J. Fish, Esq.
John Kunze, Esq.
Kim Hilton, Esq.
THE FISH LAW FIRM, P.C.
200 E. 5th Ave., Suite 123
Naperville, IL 60563
Telephone: (630) 355-7590
Facsimile: (630) 778-0400
E-mail: docketing@fishlawfirm.com
DIAMOND T SERVICES: Roinestad Sues Over Supervisors' Unpaid OT
--------------------------------------------------------------
CHRIS ROINESTAD and SHAWN DURHAM, individually and on behalf of all
others similarly situated, Plaintiffs v. DIAMOND T SERVICES, INC.,
Defendant, Case No. 4:21-cv-00004 (W.D. Tex., January 27, 2021) is
a class action against the Defendant for violations of the Fair
Labor Standards Act by failing to compensate the Plaintiffs and all
others similarly situated field supervisors overtime pay for all
hours worked in excess of 40 hours in a workweek.
Mr. Roinestad and Mr. Durham were employed by the Defendant as
field supervisors from November of 2016 until December of 2019 and
from October of 2016 until February of 2020, respectively.
Diamond T Services, Inc. is a company that provides equipment
rental and field support services for oil and gas operators and
utility companies throughout the United States, with its principal
place of business in Fort Stockton, Texas. [BN]
The Plaintiffs are represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
ETHAN HOSPITALITY: Hendricks Seeks Unpaid OT Wages Under FLSA
-------------------------------------------------------------
SCOTT HENDRICKS, individually, and on behalf of others similarly
situated v. ETHAN HOSPITALITY, LLC, RED ROCK HOSPITALITY, INC,
VIREN PATEL, AND MITESH BHULA, Case No. 1:21-cv-00014-JRH-BKE (S.D.
Ga., Jan. 27, 2021) is a collective action for unpaid overtime
wages brought pursuant to the Fair Labor Standards Act.
The Plaintiff alleges that the Defendants willfully violated the
FLSA by failing to pay him and other similarly situated hourly
employees for all hours worked over 40 per workweek at 1.5 times
their regular hourly rates.
Mr. Hendricks worked for the Defendants as an hourly Maintenance
Supervisor at the "Sleep In" Choice Hotel and the "Suburban Lodge"
Choice Hotel located in Augusta, Georgia. Plaintiff Leah Macs
worked for Defendants as an hourly Housekeeper, Front Desk
Associate and Assistant General Manager at the "Sleep In" Choice
Hotel.
The Defendants own and operate hotels where the Plaintiffs
worked.[BN]
The Plaintiff is represented by:
Andrew Y. Coffman, Esq.
PARKS, CHESIN & WALBERT, P.C.
75 Fourteenth Street, 26th Floor
Atlanta, GA 30309
Telephone: (404) 873-8000
E-mail: acoffman@pcwlawfirm.com
FEDERAL EXPRESS: Fischer Appeals Ruling in FLSA Suit to Third Cir.
------------------------------------------------------------------
Plaintiffs Christa Fischer, et al., filed an appeal from a court
ruling entered in the lawsuit entitled CHRISTA B. FISCHER,
Plaintiff v. FEDERAL EXPRESS CORPORATION, et al., Defendants, Case
No. 5-19-cv-04924, in the United States District Court for the
Eastern District of Pennsylvania.
As previously reported in the Class Action Reporter on January 6,
2021, Judge John M. Gallagher of the U.S. District Court for the
Eastern District of Pennsylvania granted Fischer's Motion for
Conditional Certification and Court-Authorized Notice, but only for
the putative opt-in Plaintiffs, who worked for FedEx Express in
Pennsylvania during the relevant period.
For the better part of the last decade, Fischer and Andre Saunders
worked as security specialists at their respective FedEx Ground
facility assignments in Pennsylvania and Maryland. Although they
are employed by FedEx Express, security specialists provide various
loss-prevention and site monitoring services at FedEx Ground
locations pursuant to a Professional Services Agreement.
Ms. Fischer and Mr. Saunders allege that, during their time as
security specialists, they regularly worked more than 40 hours a
week. However, because FedEx Express classified them as salaried
employees who were exempt from overtime pay requirements, they were
not paid for those extra hours worked. As a result, Ms. Fischer and
Mr. Saunders brought suit alleging that, by misclassifying security
specialists as exempt employees, FedEx Express failed to pay them
proper overtime wages in violation of the Fair Labor Standards
Act.
The Plaintiffs are now seeking petition for permission to appeal
under 28 U.S.C. Section 1292(b) after the Court certified an order
granting in part, a motion for conditional certification for
immediate interlocutory appeal filed by Plaintiff Fischer.
Under 28 U.S.C. Section 1292(b), the certification of an order for
interlocutory appeal is appropriate when (1) the order involves a
controlling question of law; (2) a substantial ground for
difference of opinion concerning the ruling exists; and (3) an
immediate appeal would materially advance the litigation.
The appellate case is captioned as Christa Fischer, et al. v.
Federal Express Corp, et al., Case No. 21-8006, in the United
States Court of Appeals for the Third Circuit.[BN]
Plaintiffs-Petitioners CHRISTA B. FISCHER and ANDREW SAUNDERS,
INDIVIDUALLY AND ON BEHALF OF OTHER SIMILARLY SITUATED EMPLOYEES,
are represented by:
Kelly A. Burgy, Esq.
Benjamin L. Davis, III, Esq.
LAW OFFICES OF PETER T. NICHOLL
36 South Charles Street
Baltimore, MD 21201
Telephone: (410) 244-7005
E-mail: kaburgy@nicholllaw.com
bdavis@nicholllaw.com
- and -
Adam W. Hansen, Esq.
Colin R. Reeves, Esq.
APOLLO LAW
333 Washington Avenue North, Suite 300
Minneapolis, MN 55401
Telephone: (612) 927-2969
E-mail: adam@apollo-law.com
colin@apollo-law.com
- and -
Scott M. Pollins, Esq.
POLLINS LAW FIRM
303 West Lancaster Avenue
Wayne, PA 19087
Telephone: (610) 896-9909
E-mail: scott@pollinslaw.com
Defendants-Respondents FEDERAL EXPRESS CORP. and FEDEX GROUND
PACKAGE SYSTEM are represented by:
Barak J. Babcock, Esq.
Frederick L. Douglas, Esq.
Brandon D. Pettes, Esq.
FEDERAL EXPRESS CORPORATION
3620 Hacks Cross Road
Building B, Third Floor
Memphis, TN 38125
Telephone: (901) 434-8523
E-mail: barak.babcock@fedex.com
frederick.douglas@fedex.com
FIRSTCREDIT INC: Legere-Gordon Suit Settlement Gets Prelim. Nod
---------------------------------------------------------------
In the case, NAOMI LEGERE-GORDON, individually and on behalf all
others similarly situated, Plaintiff v. FIRSTCREDIT INCORPORATED,
Defendant, Case No. 1:19-cv-360 WBS (D. Idaho), Judge William B.
Shubb of the U.S. District Court for the District of Idaho granted
the Plaintiff's motion for preliminary certification of a
conditional settlement class and preliminary approval of the class
action settlement.
Plaintiff Legere-Gordon, individually and on behalf of all other
similarly situated persons, brought the putative class action
against Defendant Firstcredit Inc. ("FCI"), alleging violations of
the Telephone Consumer Protection Act of 1991 ("TCPA"). The
complaint alleges that the Plaintiff received calls on her cellular
phone from a number associated with defendant on "numerous"
occasions. Though she never gave permission for FCI to contact
her, she alleges that defendant continued to call her cellular
phone anyway. The Plaintiff's complaint further alleges that she
represents a class of persons throughout the United States to whom
defendant placed, or caused to be placed, similar calls over the
last four years.
The parties reached a tentative agreement through mediation, and
engaged in further negotiations over the next month to produce the
final settlement agreement before the Court. The Plaintiff has
filed an unopposed motion for preliminary approval of a class
action settlement.
As proposed, the Settlement Agreement contemplates a release of all
claims for injunctive relief asserted in the action by the
settlement class, defined as "All natural and juridical persons
within the United States (1) to whom FCI placed, or caused to be
placed, a call, (2) directed to a number assigned to a cellular
telephone service, but not assigned to the intended recipient of
Defendant's calls, (3) by using an automatic telephone dialing
system or an artificial or prerecorded voice, (4) from Sept. 18,
2015 through the date the Order of Preliminary Approval of Class
Action Settlement is entered by the Court."
The proposed settlement class consists of approximately 33,172
recipients of defendants' calls.
The TCPA's statutory damages provision awards a minimum of $500 in
damages per violative call. Given the number of violative calls at
issue, the Plaintiff estimates that a judgment in the case would
total at least $16.5 million. The parties represent that, based on
financial documents produced by defendant in discovery, the amount
far exceeds the Defendant's ability to pay.
Accordingly, the settlement does not provide the class members with
any monetary relief, and instead seeks injunctive relief requiring
the Defendant to implement changes to its calling practices.
Specifically, the Defendant must determine which phone numbers on
its call lists are cellular numbers and scrub those numbers from
its lists (unless defendant has a good faith basis to believe that
consent to call the number has been given); revise its TCPA
processes, procedures, and training materials and implement
training for its employees regarding these processes and
procedures; and issue quarterly reports concerning TCPA litigation
and proof of compliance to the class counsel throughout the
two-year duration of the injunctive period.
In exchange for this injunctive relief, the class members waive
their right to bring claims for injunctive relief or to participate
in any class or representative proceeding related to claims that
they received phone calls from defendant in violation of the TCPA
between Sept. 18, 2015, and the date of preliminary approval. The
settlement does not require class members to release any individual
claims for damages they may have against FCI.
The Settlement Agreement further provides for an award of $180,000
in attorney's fees and costs, subject to Court approval, and an
incentive award for the Plaintiff of $3,500. The settlement states
that the class counsel will be responsible for reimbursing the
settlement administrator for all costs of settlement
administration.
The proposed Notice of Class Settlement calls for notice to be
published in summary form in two consecutive Monday editions of USA
Today. The summary will direct the members of the settlement class
to a website created by the settlement administrator. The
settlement administrator will also create a call center reachable
at a toll-free number that is dedicated to answering the class
members' questions and to providing information regarding the
settlement.
As proposed, the Notice published on the settlement website will
inform the class members of the injunctive relief provided by the
settlement, of their right to object and attend a fairness hearing,
that the settlement will waive their right to pursue claims for
damages in a class action setting while preserving their right to
pursue individual damages claims against the Defendant.
On Dec. 9, 2020, the Court held a hearing on the Plaintiff's
motion. After expressing concern with the parties' proposed notice
plan, the Court continued the hearing to Jan. 25, 2021, so the
parties could negotiate a new plan for issuing notice to the
members of the class. The parties submitted a Joint Status Report
containing an updated proposed notice plan on Jan. 19, 2021.
Based on the Plaintiff's motion, the Court's Dec. 9, 2020, and Jan.
25, 2021 hearings, and the parties' Joint Status Report, Judge
Shubb issued the Order granting the Plaintiff's motion for
preliminary approval.
The following class is provisionally certified for the purpose of
settlement: All natural and juridical persons within the United
States (a) to whom defendant placed, or caused to be placed, a
call, (b) directed to a number assigned to a cellular telephone
service, but not assigned to the intended recipient of Defendant's
calls, (c) by using an automatic telephone dialing system or an
artificial or prerecorded voice, (d) from Sept. 18, 2015 through
the date of the Order.
The proposed settlement is preliminarily approved as fair, just,
reasonable, and adequate to the members of the settlement class,
subject to further consideration at the final fairness hearing
after distribution of notice to the members of the settlement
class.
For purposes of carrying out the terms of the settlement only:
Naomi Legere-Gordon is appointed as the representative of the
settlement class and is provisionally found to be an adequate
representative within the meaning of Federal Rule of Civil
Procedure 23, Gary M. Klinger of Mason Lietz & Klinger, LLP, and
Anthony Paronich of Paronich Law, P.C., are provisionally found to
be fair and adequate representatives of the settlement class and
are appointed as the class counsel for the purposes of representing
the settlement class conditionally certified in the Order. KCC
Class Action Services, LLC is appointed as the settlement
administrator.
Judge Shubb approved the form and content of the proposed full
Notice of Class Action Settlement contained in the parties
Settlement Agreement, except to the extent that it must be updated
to reflect dates and deadlines specified in the Order and to
reflect the fact that the final fairness hearing will occur over
Zoom.
He also approved the content of the proposed digital media notice
plan contained in the parties' Joint Status Report, except to the
extent it must be updated to reflect dates and deadlines specified
in the Order. The summary notice placed on the desktop and/or
mobile devices of users shall, at a minimum, state "If you received
a call on your cell phone from FirstCredit Incorporated, a class
action settlement may affect your rights," and will contain a link
to the settlement website containing the full notice created
pursuant to the Notice of Class Action Settlement contained in the
parties' Settlement Agreement.
No later than 20 days from the date the Order is signed, KCC will
provide notice to the class members pursuant to the proposed
digital media notice plan.
No later than 60 days from the date the Order is signed, any member
of the settlement class who intends to object to or comment upon
the settlement will mail written notice of that intent to the class
counsel, defense counsel, and the United States District Court for
the District of Idaho, pursuant to the instructions in the Notice
of Class Action Settlement.
The final fairness hearing is set for June 1, 2021, at 1:30 p.m.
(PT) in Courtroom 5. The parties will update the proposed full
Notice of Class Action Settlement to inform the class members that
the final fairness hearing will take place over Zoom. The Notice
will instruct any person who is interested in attending the hearing
to contact the Plaintiff's counsel no later than 60 days from the
date KCC publishes the Notice of Class Action Settlement to obtain
instructions for gaining access via Zoom.
The courtroom deputy will provide the Plaintiff's counsel with
these instructions no later than May 25, 2021. The Plaintiff's
counsel shall, in turn, provide the instructions to persons who
have expressed interest in attending no later than May 27, 2021.
The Court may continue the final fairness hearing without further
notice to the members of the class.
No later than 28 days before the final fairness hearing, the class
counsel will file with the Court a petition for an award of
attorney's fees and costs. Any objections or responses to the
petition will be filed no later than 14 days before the final
fairness hearing. The Class counsel may file a reply to any
objections no later than seven days before the final fairness
hearing.
No later than 28 days before the final fairness hearing, the class
counsel will file and serve upon the Court and the Defendants'
counsel all papers in support of the settlement, the incentive
award for the class representative, and any award for attorney's
fees and costs.
No later than 8 days before the final fairness hearing, KCC will
prepare, and the class counsel will file and serve upon the Court
and the Defendants' counsel, a declaration setting forth the
services rendered, proof of notice provided, a list of all the
class members, and a list of all the class members who have
commented upon or objected to the settlement.
Responses to any such objections will be served by hand or through
the mails on the objectors, or on the objector's counsel if there
is any, and filed with the court no later than 14 calendar days
before the final fairness hearing. The Objectors may file optional
replies no later than seven calendar days before the final fairness
hearing in the same manner described above.
Pending final determination of whether the settlement should be
ultimately approved, the Court preliminarily enjoined all the class
members (unless and until the class member has submitted a timely
and valid request for exclusion) from filing or prosecuting any
claims, suits, or administrative proceedings regarding claims to be
released by the settlement.
A full-text copy of the Court's Jan. 26, 2021 Memorandum & Order is
available at https://tinyurl.com/y5acxne4 from Leagle.com.
GREENSPOON MARDER: N.J. Court Narrows Claims in Rock FDCPA Suit
---------------------------------------------------------------
In the case, KIMMA ROCK as Executrix of the Estate of Isabel
Schick, individually and on behalf of all others similarly
situated, Plaintiff(s) v. GREENSPOON MARDER, LLP, Defendant, Case
No. 20-cv-3522 (D.N.J.), Judge John Michael Vazquez of the U.S.
District Court for the District of New Jersey granted in part and
denied in part Defendant Greenspoon's motion to dismiss the Amended
Complaint.
The putative class action involves alleged violations of the Fair
Debt Collection Practices Act ("FDCPA"). Isabel Schick allegedly
incurred a financial obligation to Liberty Home Equity Solutions,
Inc., and Liberty retained Celink as serving agents for the
obligation. Celink then retained Greenspoon in connection with the
Liberty obligation, which was in default.
On Dec. 20, 2019, the Plaintiff was appointed Executrix of the
Estate of Isabel Schick pursuant to Letters Testamentary issued by
the New Jersey Surrogate's Court. On Feb. 19, 2020, the Plaintiff
received a debt collection letter from Greenspoon that was
addressed to the "Estate of Isabel Schick." Through the Letter,
Greenspoon attempted to collect on the Liberty obligation.
After receiving the Letter, the Plaintiff filed the putative class
action alleging, in her one-count Complaint, that the Letter and
Greenspoon's debt collection practices violated the FDCPA. Within
the one count, the Plaintiff alleges multiple violations of the
FDCPA, including violations of (1) 15 U.S.C. Section 1692c(b) for
addressing the Letter to the Estate rather than the Executor; (2)
15 U.S.C. Sections 1692g(a)(1), 1692e(2)(A) and 1692e(10) for
failing to disclose how the amount of debt was calculated or
setting forth the "other charges" that could change the total
amount due; (3) 15 U.S.C. Section 1692(g)(b) and 1692e(10) because
the Letter is not clear as to how long the debt collector must
cease its collection efforts if the Plaintiff exercised her
validation rights; and (4) 15 U.S.C. Sections 1692e(5) and
1692e(10) by failing to explain who "you" refers to in the Letter.
On May 12, 2020, the Defendant filed a motion to dismiss, arguing
that the Plaintiff lacked standing and failed to state a claim.
The Plaintiff filed the Amended Complaint the following day. The
Defendant subsequently filed the instant motion to dismiss, seeking
to dismiss the AC. The Defendant again maintains that the
Plaintiff lacks standing to assert her claims and fails to state a
claim.
Judge Vazquez finds that the Plaintiff has standing to assert her
claims. He holds that the Plaintiff, who also asserts claims
alleging a violation of Section 1692e, among other provision of the
FDCPA, sufficiently alleged a concrete injury to establish Article
III standing. The receipt of a misleading debt collection letter
may constitute a concrete injury because it is the precise injury
that Congress hoped to stop with the FDCPA. The fact remains that
the Plaintiff asserts that the Letter was false and misleading in
violation of Section 1692e. These allegations are sufficient to
find that she facially pleads that she suffered an injury-in-fact.
Even assuming that the Plaintiff paid the debt in full, the fact
that she eventually paid the debt does not negate the fact that she
received the purportedly false and misleading Letter. Thus, as
alleged, the Plaintiff suffered an injury sufficient to establish
standing.
For these reasons, the Defendant's motion to dismiss pursuant to
Rule 12(b)(1) is denied. Because the Plaintiff has standing, the
Judge turns to the Defendant's arguments for dismissal pursuant to
Rule 12(b)(6). To succeed on an FDCPA claim, a plaintiff must
demonstrate that (1) she is a consumer, (2) the defendant is a debt
collector, (3) the defendant's challenged practice involves an
attempt to collect a 'debt' as the Act defines it, and (4) the
defendant has violated a provision of the FDCPA in attempting to
collect the debt." The Defendant does not dispute that the
Plaintiff is consumer, that Defendant is a debt collector, or that
it was attempting to collect a debt from her. Thus, the critical
issue is whether any part of the Letter violated the FDCPA.
The Plaintiff first contends that Greenspoon violated Section 1692c
because it addressed the Letter to the Estate of Isabel Schick,
rather than to the attention of her as the Executrix of the Estate.
Judge Vazquez explains that the Defendant does not contest that it
addressed the Letter at issue to the Estate, rather than the
Executrix. Moreover, when it sent the Letter, the Plaintiff was
appointed the Executrix of the Estate. Consequently, the Defendant
technically violated Section 1692c(b) by addressing the Letter to
the Estate, as an estate is not considered the consumer. The
Plaintiff, therefore, states a claim as to a violation of Section
1692c(b), and the Defendant's motion is denied on these grounds.
Next, the Plaintiff alleges that the Letter violated Sections 1692g
and 1692e(2)(A) for failing to disclose how the amount of debt was
calculated or set forth what "other charges" may be incurred. The
Judge holds that Greenspoon utilized the Safe Harbor language in
the Letter under appropriate circumstances. The Plaintiff does not
allege that the amount listed in the Letter is incorrect; that
Greenspoon could not actually assess interest, late charges, or
other charges; or that other language in the letter made the Safe
Harbor language false or misleading. Consequently, the Judge Court
concludes that the Defendant complied with the "amount of debt"
provision of the FDCPA because it utilized the Safe Harbor language
established in Miller v. McCalla, Raymer, Padrick, Cobb, Nichols, &
Clark, L.L.C., 214 F.3d 872 (7th Cir. 2000)). Therefore, its
motion is granted on these grounds and the Plaintiff's Sections
1692e(2) and 1692g claims are dismissed.
Next, the Plaintiff contends that Greenspoon violated Sections
1692e(5) and (10) because the letter used the word "you," despite
the fact that she was not individually responsible for the debt.
Judge Vazquez says the FTC provides two possible disclosures that
"generally will be sufficient to prevent deception." The
disclosures are (1) that the collector is seeking payment from the
estate's assets; and (2) that the individual could not be required
to use the individual's assets to pay the decedent's debt. The
Letter at issue fails to include either disclosure. As a result,
he concludes that the least sophisticated debtor may be misled into
believing that she was personally responsible for the debt because
Greenspoon used the word "you" in the letter. The Plaintiff states
a claim pursuant to Sectiosn 1692e(5) and (10). The Defendant's
motion is denied on these grounds.
Finally, the Plaintiff alleges that the validation notice in the
Letter is unclear, in violation of Section 1692g(b). Applying the
least sophisticated debtor standard, the Judge agrees with the
Plaintiff that the Letter does not clearly explain that the
Defendant could re-start its collection activities after mailing
the verification, even if the initial 30-day verification period
had not ended. Because the least sophisticated consumer may be
confused as to when the Defendant may re-start its debt collection
efforts, the Judge concludes that the Plaintiff states a claim
under Section 1692g(b). The Defendant's motion to dismiss is also
denied on these grounds.
For the foregoing reasons, Judge Vazquez granted in part and denied
in part the Defendant's motion to dismiss. The Defendant's motion
is denied as to its argument that the Court lacks subject-matter
jurisdiction pursuant to Rule 12(b)(1). The Defendant's motion to
dismiss pursuant to Rule 12(b)(6) is granted as to the Plaintiff's
Sections 1692e(2) and 1692g claims and these claims are dismissed.
The Defendant's motion to dismiss pursuant to Rule 12(b)(6) is
otherwise denied. With respect to the portions of the Amended
Complaint that are dismissed, the dismissal is without prejudice.
The Plaintiff will have 30 days to file a second amended complaint,
which cures the deficiencies noted. If the Plaintiff does not file
an amended pleading within that time, the dismissed claims will be
dismissed with prejudice. An appropriate Order accompanies the
Opinion.
A full-text copy of the Court's Jan. 26, 2021 Order is available at
https://tinyurl.com/y5d3ymz6 from Leagle.com.
HELIX TCS: Urges Judge to Bar Class Certification in FLSA Suit
--------------------------------------------------------------
Law360.com reports that fresh off its failed bid to take a Fair
Labor Standards Act class action dispute over whether federal labor
laws protect employees at federally illegal businesses to the U.S.
Supreme Court, cannabis security company Helix TCS urged a Colorado
federal judge to bar certification of the proposed class of
workers. [GN]
INTERCONTINENTAL TERMINALS: Faces Ogden Suit Over Tank Yard Fire
----------------------------------------------------------------
STEVEN BRETT OGDEN and BRANDON MICHAEL MARTIN on Behalf of
Themselves and on Behalf of All Others Similarly Situated v.
INTERCONTINENTAL TERMINALS COMPANY LLC, JOHNSON CONTROLS INC., TYCO
FIRE PRODUCTS, LP, THE ANSUL COMPANY, CHEMGUARD, INC., NATIONAL
FOAM, INC., KIDDE-FENWAL, INC., KIDDE FIRE FIGHTING, INC., US PUMP
COMPANY, LLC, WILLIAMS FIRE & HAZARD CONTROL, NSK LIMITED, NSK
CORPORATION, NSK PRECISION AMERICA, INC., NSK-AKS PRECISION BALL
COMPANY, and APPLIED INDUSTRIAL TECHNOLOGIES, INC, Case No.
4:21-cv-00273 (S.D. Tex., Jan. 27, 2021) is a class action arising
out of a fire at ITC's tank yard in Deer Park, Texas during the
morning of March 17, 2019.
According to the complaint, the tank fire at ITC's facility burned
for days while churning out massive plumes of toxic smoke across
the communities of Harris County. First responders struggled to
contain the fire and ITC's own actions and inactions caused an
increase in the fire's severity. The fire caused injury and damages
to Plaintiffs and the Class Members, says the complaint.
During the fire, industrial firefighting foam was used in an
attempt to suppress the fire. The foam that was used contained Per-
and Polyfluoroalkyl substances ("PFAS"). PFAS is a group of manmade
chemicals that have been known to cause adverse health outcomes in
humans. PFAS can cause reproductive and developmental, liver and
kidney, and immunological effects.
ITC operates a storage facility in the petrochemical industry. The
Defendant Johnson Controls, Inc. owns, operates, and controls
Defendants Tyco Fire Products, LP and Chemguard, Inc. The
Defendants Tyco Fire Products, LP and Chemguard, Inc. manufactured,
marketed, promoted, distributed, and/or sold Aqueous Fire Fighting
Foam that contained PFAS chemicals, such as PFOA, PFOS, and other
toxic substances that were used during the ITC fire.[BN]
The Plaintiffs are represented by:
Don J. Foty, Esq.
David W. Hodges, Esq.
HODGES & FOTY, LLP
4409 Montrose Blvd., Suite 200
Houston, TX 77006
Telephone: (713) 523-0001
Facsimile: (713) 523-1116
E-mail: dfoty@hftrialfirm.com
dhodges@hftrialfirm.com
- and -
William R. Oden, Esq.
FARRAR & BALL, L.L.P.
1117 Herkimer Street
Houston, TX 77008
Telephone: (713) 221-8300
Facsimile: (713) 221-8301
E-mail: bill@fbtrial.com
- and -
Charles R. Houssiere, III, Esq.
Spencer T. Speed, Esq.
HOUSSIERE, DURANT & HOUSSIERE
1990 Post Oak Blvd., Suite 800
Houston, TX 77056-3812
Telephone: (713) 626-3700
Facsimile: (713) 626-3709
E-mail: choussiere@hdhtex.com
sspeed@hdhtex.com
JERRY W. BAILEY: Settlement in Koch FLSA Suit Wins Court Approval
-----------------------------------------------------------------
In the case, DANIEL KOCH, et al., Plaintiffs v. JERRY W. BAILEY
TRUCKING, INC., THE ESTATE OF JERRY W. BAILEY, and LINDA L. BAILEY,
Defendants, Case No. 1:14-CV-72-HAB (N.D. Ind.), Judge Holly A.
Brady of the U.S. District Court for the Northern District of
Indiana, Fort Wayne Division, granted the parties' Joint Motion to
Approve Settlement.
On March 7, 2014, the Plaintiffs filed suit against the Defendants
alleging a class action for violations of the Fair Labor Standards
Act ("FLSA") and individual actions for violations of Indiana's
Wage Claims Statute. The claims arose out of an alleged failure to
pay the Plaintiffs' for activities undertaken before and after
their compensated workday.
The Court conditionally certified both class and collective actions
on June 24, 2015. However, it decertified both the class and
collective actions on May 16, 2019, because of the Plaintiffs'
failure to meet the numerosity requirement for certification.
Following decertification, the parties filed cross-motions for
summary judgment. On Aug. 27, 2020, the Court entered its Opinion
and Order on those motions. It granted summary judgment in favor
of Linda L. Bailey, finding that she was not an "employer" for the
purposes of the FLSA. It also granted summary judgment in favor of
the Plaintiffs, finding that Defendant Jerry W. Bailey Trucking,
Inc. had violated the FLSA. Summary judgment was denied on all
other issues.
Following the ruling on the parties' dispositive motions, the
parties engaged in a two-day settlement conference with Magistrate
Judge Susan Collins. As a result of that conference, the
Defendants agreed to make certain payments to the Plaintiffs, the
amounts of which have been filed with the Court under seal. The
parties have also provided the Court with a general Settlement and
Release of Claims Agreement that will be executed by each
Plaintiff.
The matter comes before the Court on the parties' Joint Motion to
Approve Settlement.
While Judge Brady has determined, as a matter of law, that an FLSA
violation occurred, there remain serious questions of fact
regarding the liability of the Estate of Jerry Bailey, whether the
FLSA violations were willful, and whether the Defendants acted in
good faith. The resolution of these questions would seriously
affect the Plaintiff's potential recoveries. Moreover, the
Plaintiffs would have the burden at trial of proving the extent of
the unpaid time and the amounts owed. With these issues
outstanding, the value of an immediate recovery outweighs the mere
possibility of further relief after taking the case to trial.
Additionally, the Judge finds that the parties are represented by
counsel who have negotiated in good faith and at arm's length. The
settlement was reached during a settlement conference with the
Magistrate Judge. Finally, she finds that the payments provided in
the settlement agreement are fair and reasonable and reflect a
reasonable compromise of disputed issues.
For the foregoing reasons, Judge Brady granted the Joint Motion to
Approve Settlement. She ordered the parties to inform the Court
when all settlement documents have been properly executed so that
judgment can be entered.
A full-text copy of the Court's Jan. 26, 2021 Opinion & Order is
available at https://tinyurl.com/y5trbzaw from Leagle.com.
JOSIE ACCESSORIES: Williams Sues Over Blind-Inaccessible Website
----------------------------------------------------------------
Milton Williams, on behalf of himself and all other persons
similarly situated v. JOSIE ACCESSORIES INC. and ELRENE
MANUFACTURING CO., INC., Case No. 1:21-cv-00725-VSB (S.D.N.Y., Jan.
26, 2021), is brought against the Defendant for its failure to
design, construct, maintain, and operate its website to be fully
accessible to and independently usable by the Plaintiff and other
blind or visually-impaired people.
The Defendant's denial of full and equal access to its website, and
therefore denial of its products and services offered thereby and
in conjunction with its physical location, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act.
Because the Defendants' Website, https://www.elrene.com/, is not
equally accessible to blind and visually-impaired consumers, it
violates the ADA. The Plaintiff seeks a permanent injunction to
cause a change in the Defendant's corporate policies, practices,
and procedures so that the Defendant's website will become and
remain accessible to blind and visually-impaired consumers, says
the complaint.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read website content using his
computer.
The Defendants operates the Elrene online retail store as well as
the Elrene website and advertises, markets, and operates in the
State of New York and throughout the United States. [BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, N.Y. 10003-2461
Phone: (212) 228-9795
Fax: (212) 982-6284
Email: Michael@Gottlieb.legal
Jeffrey@gottlieb.legal
Dana@gottlieb.legal
KANDI TECHNOLOGIES: Schall Law Firm Reminds of Feb. 9 Deadline
--------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
announces the filing of a class action lawsuit against Kandi
Technologies Group, Inc. ("Kandi" or "the Company") (NASDAQ:KNDI)
for violations of §§10(b) and 20(a) of the Securities Exchange
Act of 1934 and Rule 10b-5 promulgated thereunder by the U.S.
Securities and Exchange Commission.
Investors who purchased the Company's securities between
March 15, 2019 and November 27, 2020, inclusive (the "Class
Period"), are encouraged to contact the firm before February 9,
2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Kandi artificially inflated its revenues
using a scheme involving undisclosed related party transactions.
These undisclosed related party transactions, along with
transactions with parties in which an arms-length relationship was
in doubt, accounted for the majority of the Company's sales in the
past year. When the related party scheme came to light, it cast
doubt on the Company's reported revenue and harmed its reputation.
Based on these facts, the Company's public statements were false
and materially misleading throughout the class period. When the
market learned the truth about Kandi, investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
KELLER WILLIAMS: Samataro Suit Transferred to W.D. Texas
--------------------------------------------------------
The case styled as Thomas Samataro, William Miskokomon,
individually and on behalf of all others similarly situated v.
Keller Williams Realty, Inc., M 77, LLC, Nick Zeoli, Great Day Real
Estate, LLC, Case No. 2:20-cv-12185, was transferred from the U.S.
District Court for the Eastern District of Michigan, to the U.S.
District Court for the Western District of Texas on Jan. 26, 2021.
The District Court Clerk assigned Case No. 1:21-cv-00076 to the
proceeding.
The nature of suit is stated as Other Statutory Actions.
Keller Williams Realty -- https://www.kw.com/ -- is an American
technology and international real estate franchise with
headquarters in Austin, Texas.[BN]
The Plaintiffs are represented by:
Avi Kaufman, Esq.
KAUFMAN PA
400 NW 26th St.
Miami, FL 33127
Phone: (305) 469-5881
Email: kaufman@kaufmanpa.com
- and -
Stefan Coleman, Esq.
LAW OFFICES OF STEFAN COLEMAN LLC
201 S Biscayne Blvd., 28th Fl.
Miami, FL 33131
Phone: (877) 333-9427
Fax: (888) 498-8946
Email: law@stefancoleman.com
- and -
George T. Blackmore, Esq.
BLACKMORE LAW PLC
21411 Civic Center Drive, Suite 200
Southfield, MI 48076
Phone: (248) 845-8594
Fax: (855) 744-4419
The Defendants are represented by:
David M. Schultz, Esq.
Jennifer W. Weller, Esq.
HINSHAW & CULBERTSON LLP
151 N. Franklin Street, Suite 2500
Chicago, IL 60606
Phone: (312) 704-3000
Fax: (312) 704-3001
- and -
Mark D. Willmarth, Esq.
503 S. Saginaw Street, Suite 1000
Flint, MI 48502
Phone: (810) 600-4238
Fax: (810) 232-1079
- and -
Wayne T. Tomala, Esq.
TOMALA LEGAL GROUP
2804 Orchard Lake Rd., Suite 200
Keego Harbor, MI 48320
Phone: (248) 681-6255
- and -
Marco Carmine Masciulli, Esq.
Shawn H. Head, Esq.
THE HEAD LAW FIRM, PLC
34705 W. Twelve Mile Rd., Suite 160
Farmington Hills, MI 48331
Phone: (248) 939-5405
Fax: (248) 406-0218
KORIN INC: Williams Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Korin, Inc. The case
is styled as Milton Williams, on behalf of himself and all other
persons similarly situated v. Korin, Inc., Case No. 1:21-cv-00726
(S.D.N.Y., Jan. 26, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Korin, Inc. -- https://www.korin.com/ -- is a source for
professional quality Japanese knives, tableware, kitchen
appliances, kitchen tools, and barware.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
KTG MULTISERVICES: Sanchez Suit Alleges Unpaid Wages for Cleaners
-----------------------------------------------------------------
JAVIER TORRES SANCHEZ and OSCAR DAVID POSADA, individually and on
behalf of all others similarly situated, Plaintiffs v. KTG
MULTISERVICES INC., AAC MAINTENANCE CORP., ANDREA CATALINA
GONZALEZ, ALVEIRO ECHEVERRI, ALEJANDRO ACOSTA, and ROSA MARTINEZ,
Defendants, Case No. 1:21-cv-00751 (S.D.N.Y., January 27, 2021) is
a class action against the Defendants for violations of the Fair
Labor Standards Act and the New York Labor Law by failing to
compensate the Plaintiffs and all others similarly situated
cleaners overtime pay for all hours worked in excess of 40 hours in
a workweek and failing to pay them spread of hours premium.
Mr. Sanchez and Mr. Posada worked for the Defendants as cleaners in
New York from January 2018 until March 2020 and from approximately
November or December 2017 until October 2020, respectively.
KTG Multiservices Inc. is a cleaning and maintenance services
company, with its principal place of business located at 47-10
104th Street, Suite 4A, Corona, New York.
AAC Maintenance Corp. is a provider of maintenance services, with
its principal place of business located at 2351 White Oak Court,
East Elmhurst, New York. [BN]
The Plaintiffs are represented by:
D. Maimon Kirschenbaum, Esq.
Josef Nussbaum, Esq.
JOSEPH KIRSCHENBAUM LLP
32 Broadway, Suite 601
New York, NY 10004
Telephone: (212) 688-5640
Facsimile: (212) 688-2548
KUSH PHARM: Raven Sues Over Transmission of Unwanted Text Messages
------------------------------------------------------------------
TONI RAVEN, individually and on behalf of all others similarly
situated, Plaintiff v. K.U.S.H. (KINDER UNDERSTANDING SENSITIVE
HEALING) COLLECTIVE d/b/a KUSH PHARM, Defendant, Case No.
2:21-cv-00731 (C.D. Cal., January 27, 2021) is a class action
against the Defendant for violations of the Telephone Consumer
Protection Act.
According to the complaint, the Defendant sent text messages to the
cellular telephone numbers of the Plaintiff and Class members using
an automatic telephone dialing system in an attempt to promote its
business without obtaining prior express written consent. As a
result of the Defendant's alleged illegal conduct, the Plaintiff
and the Class were harmed including invasion of their privacy,
harassment, aggravation, and disruption of daily life.
K.U.S.H. (Kinder Understanding Sensitive Healing), doing business
as KUSH Pharm, is a cannabis dispensary located at 16770 Stagg St.,
Van Nuys, California. [BN]
The Plaintiff is represented by:
Joshua Moyer, Esq.
SHAMIS & GENTILE, P.A.
401 W A Street, Suite 200
San Diego, CA 92101
Telephone: (305) 479-2299
E-mail: jmoyer@shamisgentile.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
1925 Century Park E #1700
Los Angeles, CA 90067
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
LIVE LION: Valencia Suit Seeks Unpaid Wages for Security Staff
--------------------------------------------------------------
RAMON VALENCIA, individually and on behalf of all others similarly
situated, Plaintiff v. LIVE LION SECURITY LLC, BENJAMIN MEHREL, and
JOSEPH JACOBOWITZ, Defendants, Case No. 1:21-cv-00448 (E.D.N.Y.,
January 27, 2021) is a class action against the Defendants for
violations of the Fair Labor Standards Act, the New York Labor Law,
and the New York State Wage Theft Prevention Act by failing to
compensate the Plaintiff and all others similarly situated security
monitors overtime pay for all hours worked in excess of 40 hours in
a workweek, failing to pay them spread of hours premium, failing to
provide wage notices, and failing to provide accurate wage
statements.
Mr. Valencia worked for the Defendants as a security monitor in
Brooklyn, New York from approximately August 2018 through December
2020.
Live Lion Security LLC is a remote live-video monitoring services
provider located in Brooklyn, New York. [BN]
The Plaintiff is represented by:
Louis Pechman, Esq.
Gianfranco J. Cuadra, Esq.
PECHMAN LAW GROUP PLLC
488 Madison Avenue, 17th Floor
New York, NY 10022
Telephone: (212) 583-9500
E-mail: pechman@pechmanlaw.com
cuadra@pechmanlaw.com
LIVENT CORP: April 15 Fairness Hearing Set for Class Settlement
---------------------------------------------------------------
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY,
PENNSYLVANIA – CIVIL TRIAL DIVISION
IN RE LIVENT CORPORATION
SECURITIES LITIGATION
CIVIL ACTION
Consolidated Case No. 190501229
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED
SETTLEMENT, AND MOTION FOR ATTORNEYS' FEES AND EXPENSES
To: All persons and entities who or which purchased or
otherwise acquired the publicly traded common stock of Livent
Corporation ("Livent") pursuant and/or traceable to Livent's
Offering Materials for its initial public offering of 23,000,000
shares.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the Court of
Common Pleas of Philadelphia County, Pennsylvania, that Lead
Plaintiffs Plymouth County Retirement Association and Gary
Bizarria, on behalf of themselves and the proposed Settlement
Class,1 and Livent and the other defendants in the Action, have
reached a proposed settlement of the above-captioned class action
(the "Action") in the amount of $7,400,000 that, if approved, will
resolve the Action in its entirety (the "Settlement").
A hearing will be held before the Honorable Ramy I. Djerassi,
either in person at the Court of Common Pleas of Philadelphia
County, Pennsylvania, in a courtroom that will be posted in advance
on the Settlement website, or remotely, using information that will
be posted on the Settlement website, in the Court's discretion, at
10:00 a.m. EDT on April 15, 2021 (the "Settlement Hearing") to,
among other things, determine whether the Court should: (i) approve
the proposed Settlement as fair, reasonable, and adequate; (ii)
dismiss the Action with prejudice as provided in the Stipulation
and Agreement of Settlement, dated October 27, 2020; (iii) approve
the proposed Plan of Allocation for distribution of the Net
Settlement Fund; and (iv) approve Lead Counsel's Fee and Expense
Application. The Court may change the date of the Settlement
Hearing without providing another notice. You do NOT need to
attend the Settlement Hearing to receive a distribution from the
Net Settlement Fund.
IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS, YOUR RIGHTS WILL BE
AFFECTED BY THE PROPOSED SETTLEMENT AND YOU MAY BE ENTITLED TO A
MONETARY PAYMENT. If you have not yet received a Notice and Proof
of Claim and Release form ("Claim Form"), you may obtain copies of
these documents by visiting the website dedicated to the
Settlement, www.LiventSecuritiesSettlement.com, or by contacting
the Claims Administrator at:
Livent Securities Settlement
c/o Epiq Class Action & Claims Solutions, Inc.
P.O. Box 5270
Portland, OR 97208-5270
Inquiries, other than requests for the Notice/Claim Form or for
information about the status of a claim, may also be made to Lead
Counsel:
Alfred L. Fatale III, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
www.labaton.com
settlementquestions@labaton.com
(888) 219-6877
If you are a Settlement Class Member, to be eligible to share in
the distribution of the Net Settlement Fund, you must submit a
Claim Form postmarked or submitted online no later than May 8,
2021. If you are a Settlement Class Member and do not timely
submit a valid Claim Form, you will not be eligible to share in the
distribution of the Net Settlement Fund, but you will nevertheless
be bound by all judgments or orders entered by the Court in the
Action, whether favorable or unfavorable.
If you are a Settlement Class Member and wish to exclude yourself
from the Settlement Class, you must submit a written request for
exclusion in accordance with the instructions set forth in the
Notice such that it is received no later than March 25, 2021. If
you properly exclude yourself from the Settlement Class, you will
not be bound by any judgments or orders entered by the Court in the
Action, whether favorable or unfavorable, and you will not be
eligible to share in the distribution of the Net Settlement Fund.
Any objections to the proposed Settlement, the proposed Plan of
Allocation, and/or Lead Counsel's Fee and Expense Application must
be mailed to counsel for the Parties in accordance with the
instructions in the Notice, such that they are received no later
than March 25, 2021.
PLEASE DO NOT CONTACT THE COURT, DEFENDANTS, OR
DEFENDANTS' COUNSEL REGARDING THIS NOTICE.
DATED: January 22, 2021
BY ORDER OF THE COURT OF COMMON
PLEAS OF PHILADELPHIA COUNTY,
PENNSYLVANIA
MANPOWERGROUP US: 2 Classes in Francis Suit Conditionally Certified
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In the case, KAREN FRANCIS, Plaintiff v. MANPOWERGROUP US INC.,
EXPERIS US INC., Defendants, Case No. 16-cv-1477-bhl (E.D. Wis.),
Judge Brett H. Ludwig of the U.S. District Court for the Eastern
District of Wisconsin granted in part the Plaintiff's motion for
conditional certification, and referred the case to a magistrate
judge for mediation.
Plaintiff Francis brings the individual and collective action
against Defendants ManpowerGroup and Experi under the Fair Labor
Standards Act of 1938 ("FLSA") for unpaid overtime compensation.
Defendants ManpowerGroup and Experis (collectively "Experis") are
affiliated human resource companies headquartered in Milwaukee,
Wisconsin. Among other things, Experis provides talent acquisition
and recruiting services to clients through a division known as
Recruiting Process Outsourcing ("RPO"). RPO services are managed
through individualized units, called Programs, developed
specifically for each client. Between October 2013 and March 2017,
RPO operated 164 distinct Programs and engaged 2,476 employees.
Each RPO Program is designed to meet a client's talent acquisition
need and has its own separate goals, recruitment parameters, and
management schemes; some clients are even allotted multiple RPO
Programs.
Experis employs two kinds of recruiters in its RPO Programs: (1)
hourly, nonexempt Associate Recruiters; and (2) salaried, exempt
Senior Recruiters, also referred to as Recruiting Specialists. The
duties and, accordingly, compensation of Associate Recruiters and
Senior Recruiters vary across RPO's Programs. Because Associate
Recruiters are classified as nonexempt, they are eligible for
overtime compensation. In the three years prior to the conditional
certification motion, Experis reports that almost half (42%) of
RPO's nonexempt employees received some overtime compensation.
Ms. Francis worked for RPO's Comcast West Program under the
management of Client Delivery Director Rachel Boyd. According to
Francis, she served for almost four years as an Associate
Recruiter, followed by a five-month stint as a Senior Recruiter.
All recruiters in the Comcast West Program were given performance
quotas to meet and were expected to record their time spent working
towards those quotas in an internal software program. The
recruiters were also required to follow the policies articulated in
a handbook created and distributed by Boyd.
During the relevant time period, Associate Recruiters in the
Comcast West Program were responsible for reviewing application
materials submitted by candidates and searching for additional
potential candidates online and in person. They reporting to Boyd
conducted screening interviews before referring the candidate to
Comcast and followed up with referred candidates about the hiring
process. After referred candidates were interviewed by Comcast,
they were tasked with informing rejected candidates of their
unsuccessful attempt. The Boyd handbook instructed Associate
Recruiters to work no more than forty hours a week and prohibited
overtime hours unless they had been approved in advance by a
manager. This was not the case for recruiters in other RPO
programs, not managed by Boyd.
Senior Recruiters in the Comcast West Program also reviewed
application materials and identified potential candidates for open
positions, but their work was subject to little or no review by
management. Some of Boyd's Senior Recruiters were tasked with
preparing training materials and serving as mentors for new
recruiters, others were placed in Comcast's place of business to
maintain a good working relationship and open communication with
the client, and some Senior Recruiters were assigned duties to
analyze and report on the team's metrics, prioritization of
workload, and sourcing strategies.
As an Associate Recruiter, Francis alleges she was limited to
reporting only eight hours of work each workday even though she
often worked longer than eight hours and on weekends to meet her
position's performance quotas. As a salaried Senior Recruiter,
Francis explains she was considered exempt and ineligible for
overtime even though she regularly worked more than 40 hours a week
and performed essentially the same job duties she had as an
Associate Recruiter.
On March 3, 2017, Francis moved for conditional certification of
two classes of employees:
(a) All current and former non-exempt hourly Associate
Recruiters, Recruiting Consultants, Contract Recruiters,
and/or other non-exempt hourly recruiters who worked for
ManpowerGroup US Inc. and/or Experis US, Inc. both d/b/a
ManpowerGroup Solutions at any time during the last three
years; and
(b) All current and former salaried Recruiting Specialists who
worked for ManpowerGroup US Inc. and/or Experis US, Inc.
both d/b/a ManpowerGroup Solutions at any time during the
last three years.
First, Judge Ludwig finds that the record does not support the
overly broad classes that Francis proposes. Based on the record,
Francis has not proved a common policy or nexus with either of her
proposed classes. Simply put, she has not shown that she is
similarly situated to all Associate Recruiters or Recruiting
Specialists employed by Experis. To the contrary, Experis has
presented compelling evidence to show that the RPO Programs are run
and managed on an individualized basis. The Judge will not
conditionally certify the two classes proposed by Francis.
Next, the Judge finds that the record does support conditional
certification of narrower classes, limited to the Comcast West
Program in which francis was employed. The record establishes that
Francis is sufficiently similarly situated to other Associate
Recruiters and Senior Recruiters within the Comcast West Program.
With respect to the Associate Recruiters, the record shows a common
governing policy (the Boyd handbook) that uniformly applied to all
Associate Recruiters working in the Comcast West Program. Francis
has also established that the other Associate Recruiters in the
Comcast West Program were required to meet the same performance
quotas and suffered the same burdens. With respect to Senior
Recruiters, Francis asserts (and Boyd confirms) that all Senior
Recruiters in the Comcast West Program were subject to the same
performance quotas and governing policies articulated in the Boyd
handbook.
Accordingly, the Judge will conditionally certify narrowed versions
of the two classes Francis has proposed. Both proposed classes are
modified and limited to employees holding the same positions as
Francis in the Comcast West Program.
Finally, Francis has attached a proposed "Notice of Right to Join
Lawsuit" and "Consent to Join Lawsuit" forms to her motion. She
asks the Court to authorize the circulation of the proposed notice
via first-class mail and email to the potential plaintiffs in the
conditionally certified collective, and to send them a text
message. She seeks contact information for the collective's
members from Experis by way of an order requiring them to produce
their names, last-known addresses, phone numbers, email addresses,
and the last four digits of their Social Security numbers. She
also asks the Court to order Experis to produce the job titles and
dates of employment of the collective's members. Experis did not
respond to this portion of Francis' motion.
The Judge will grant Francis' motion for an order requiring Experis
to produce the information requested for each potential plaintiff
in the two conditionally certified collectives as modified by the
Court. The Court finds that the information requested will aid in
the orderly and sensible management of the joinder process.
However, the Court will require plaintiff's counsel to submit
amended proposed forms and an updated text message for
Court-approval, consistent with the terms of this decision.
At the Oct. 15, 2020 status conference, the parties briefly
discussed whether and how equitable tolling should apply to the
claims of the potential opt-in plaintiffs. The Judge declined to
address the issue at that time because it had not yet been briefed.
Because the matter of equitable tolling is still not properly
before the Court, he declines to rule on that issue in the Order.
In light of the foregoing, Judge Ludwig granted the Plaintiff's
motion for conditional certification. He conditionally certified
the Plaintiff's two classes as:
a. All current and former non-exempt hourly Associate
Recruiters, Recruiting Consultants, Contract Recruiters,
and/or other non-exempt hourly recruiters who worked for
ManpowerGroup US Inc. and/or Experis US Inc., both d/b/a
ManpowerGroup Solutions, in the RPO organization's Comcast
West Program; and
b. All current and former salaried Recruiting Specialists
and/or Senior Recruiters who worked for ManpowerGroup US
Inc. and/or Experis US Inc., both d/b/a ManpowerGroup
Solutions, in the RPO organization's Comcast West Program.
Within seven days of the date of the Order, the Plaintiff will file
amended proposed Notice of Right to Join Lawsuit and Consent to
Join Lawsuit forms to replace ECF No. 19-1, and an amended proposed
text message to replace ECF No. 19-2. The Defendants will then
have seven days to file a response containing their objections, if
any, to the proposed forms and text message.
Once the modified forms and text message are approved by the Court,
the putative FLSA collective members will have 60 days from
circulation of the notice via first class mail, email, or text
message, whichever occurs first, to file their written consent
forms.
Within 14 days of the date of the Order, the Defendants will
provide the Plaintiff's counsel with an electronic and importable
database containing the following information for each potential
member of the two classes: full names, last known addresses, dates
of employment, job titles, phone numbers, email addresses, and the
last four digits of their Social Security numbers.
The case will be referred for mediation in a separate Order.
A full-text copy of the Court's Jan. 26, 2021 Decision & Order is
available at https://tinyurl.com/y2upojma from Leagle.com.
MAX BINIK: Faces Ticas Wage-and-Hour Class Suit in E.D.N.Y.
-----------------------------------------------------------
CHRISTIAN TICAS, individually and on behalf of all others similarly
situated, Plaintiff v. MAX BINIK "Z.L." CORP. d/b/a KRM KOLLEL
SUPERMARKET, MOISHA'S KOSHER DISCOUNT SUPERMARKET, INC. d/b/a
MOISHA'S SUPERMARKET, MARVIN BINK, and BARRY BINIK, Defendants,
Case No. 1:21-cv-00460 (E.D.N.Y., January 27, 2021) is a class
action against the Defendants for violations of the Fair Labor
Standards Act and the New York Labor Law by failing to compensate
the Plaintiff and all others similarly situated employees overtime
pay for all hours worked in excess of 40 hours in a workweek and
failing to pay them spread of hours premium.
The Plaintiff worked as a packer at the Defendants' KRM Kollel
Supermarket in New York in or around November 2019.
Max Binik "Z.L." Corp., doing business as KRM Kollel Supermarket,
is a supermarket with its principal place of business and an
address for service of process located at 1325 39th St., Brooklyn,
New York.
Moisha's Kosher Discount Supermarket, Inc., doing business as
Moisha's Supermarket, is a supermarket with its principal place of
business and an address for service of process located at 315 Ave.
M, Brooklyn, New York. [BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, Eighth Floor
New York, NY 10011
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
MINERVA NEUROSCIENCES: Thornton Law Reminds of Feb. 8 Deadline
--------------------------------------------------------------
The Thornton Law Firm on Jan. 28 disclosed that a class action
lawsuit has been filed on behalf of investors of Minerva
Neurosciences, Inc. (NASDAQ:NERV). Investors who purchased NERV
common stock or other securities between May 15, 2017 and November
30, 2020 may contact the Thornton Law Firm to obtain a copy of the
complaint or to discuss the lead plaintiff process. Interested
investors are encouraged to visit: www.tenlaw.com/cases/Minerva.
Investors may email investors@tenlaw.com or call 617-531-3917.
Interested Minerva investors have until February 8, 2021 to apply
to be a lead plaintiff.
FOR MORE INFORMATION: www.tenlaw.com/cases/Minerva
The case alleges that Minerva and its senior executive made
misleading statements to investors and failed to disclose: (i) the
truth about the negative feedback received from the FDA concerning
the "end-of-Phase 2" meeting for MIN-101; (ii) the Phase 2b study
did not use the commercial formulation of MIN-101 and was conducted
solely outside of the United States; (iii) the failure of the Phase
3 study to meet its primary and key secondary endpoints rendered
that study incapable of supporting substantial evidence of
effectiveness; (iv) the Company's plan to use the combination of
the Phase 2b and Phase 3 studies would be "highly unlikely" to
support the submission of an NDA; and (v) reliance on these two
trials in the submission of an NDA would lead to "substantial
review issues" because the trials were inadequate and not
well-controlled.
FOR MORE INFORMATION, VISIT: www.tenlaw.com/cases/Minerva
The lawsuit alleges violations of the federal securities laws. The
Private Securities Litigation Reform Act of 1995 allows any
investor who purchased the securities at issue in the case during
the Class Period to seek appointment as a lead plaintiff in the
lawsuit. A lead plaintiff acts on behalf of all other investor
class members in managing the class action and can select a law
firm of their choice to litigate the lawsuit. Serving as a lead
plaintiff does not impact an investor's share in any potential
recovery. Investors do not need to be a lead plaintiff to be a
member of the class. If investors choose to take no action, they
can remain an absent class member. Interested Minerva investors
have until February 8, 2021 to apply to be a lead plaintiff. The
class has not yet been certified. Until certification occurs,
investors are not represented by an attorney.
Thornton Law Firm's securities attorneys are highly experienced in
representing investors in recovering damages caused by violations
of the securities laws. Its attorneys have established track
records litigating securities cases in courts throughout the
country and recovering losses on behalf of investors. This may be
considered Attorney Advertising in some jurisdictions. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter.
CONTACT:
Thornton Law Firm LLP
1 Lincoln Street
State Street Financial Center
Boston, MA 02111
www.tenlaw.com/cases/Minerva [GN]
MSHS INC: Rangel Seeks Overtime Pay for Store Managers Under FLSA
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MARTHA RANGEL, on behalf of herself and on behalf of all others
similarly situated v. MSHS INC, Case No. 8:21-cv-00196 (M.D. Fla.,
Jan. 26, 2021) is a collective action for damages under the Fair
Labor Standards Act and for failure to pay overtime wages under 29
U.S.C. section 215(a)(3).
The Plaintiff contends that she and Members of the Class worked
hours in excess of 40 hours within a work week for the Defendant
and they were entitled to be paid an overtime premium equal to one
and one-half times their regular hourly rate for all of these
hours.
The Plaintiff began working for the Defendant in December 2016 and
she worked as an assistant store manager at the time of her
termination in July 2020.
The Defendant operates a gas station and convenience store in
Sarasota, Sarasota County, Florida.[BN]
The Plaintiff is represented by:
Donna V. Smith, Esq.
WENZEL FENTON CABASSA P.A.
1110 N. Florida Avenue, Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Direct No. (813) 386-0995
Facsimile: (813) 229-8712
E-mail: DSmith@wfclaw.com
RCooke@wfclaw.com
PATRIOT INSPECTION: Settlement in Stanley Suit Gets Court Approval
------------------------------------------------------------------
In the case, WILLIAM STANLEY, Plaintiff v. PATRIOT INSPECTION
SERVICES, INC., Defendant, Case No. 6-20-CV-00283-ADA (W.D. Tex.),
Judge Alan D. Albright of the U.S. District Court for the Western
District of Texas, Waco Division, granted the Parties' Joint Motion
to Approve Confidential Settlement Agreement and Dismissal with
Prejudice.
The parties request that the Court reviews the settlement agreement
for fairness, using factors illustrated in Rule 23 class action
settlement claims. Judge Albright reviews the settlement agreement
to determine that the settlement is a "fair and reasonable
resolution of a bona fide dispute over FLSA provisions."
At issue is whether the members of the class were properly
compensated for all hours worked. Stanley contends that he himself
and other workers were not compensated enough. While Patriot
contends that the workers were always properly compensated.
Furthermore, the parties disagree about the classification of the
members of the class. Stanley contends that members of the class
are similarly situated. Patriot continues to maintain that members
of the class are not similarly situated, and the suits should be
tried separately. The Parties also dispute the culpability of
Patriot. Thus, under provisions of the FSLA, the recoverable
period of time for unpaid wages would differ from two to three
years based on the parties conflicting positions.
As demonstrated by the parties, Judge Albright opines that a bona
fide dispute exists over FLSA provisions. She concludes that the
settlement is fair and reasonable. The Settlement Class Members'
attorneys have considerable experience settling FLSA cases. She
says the settlement reflects an arms'-length compromise of the
disputed claims, citing Collins v. Sanderson Farms, Inc., 568
F.Supp.2d 714, 720 (E.D. La. 2008).
Pursuant to the Parties' Motion, having been found to constitute a
fair and reasonable compromise on a bona fide dispute, the Judge is
of the opinion that it should be granted.
Therefore, the Judge conditionally certified the following class
for settlement purposes and pursuant to the Original Class and
Collective Action Complaint: "All workers who worked for, or on
behalf of, Defendant that the Defendant paid according to a day
rate plan at any time from Sept. 14, 2017 to Sept. 14, 2020."
The Judge approved and authorized the Parties' Settlement Agreement
and proposed Notice, proposed fees and settlement structure to
issue to the conditionally certified class. She dismissed the case
and all claims asserted in it with prejudice, with each Party to
bear its own costs, except as set forth in the Settlement
Agreement.
A full-text copy of the Court's Jan. 26, 2021 Order is available at
https://tinyurl.com/y5vftxum from Leagle.com.
PENUMBRA INC: Bronstein Gewirtz Reminds of March 16 Deadline
------------------------------------------------------------
Bronstein, Gewirtz & Grossman, LLC notifies investors that a class
action lawsuit has been filed against Penumbra, Inc. ("Penumbra" or
"the Company") (NYSE: PEN) and certain of its officers, on behalf
of shareholders who purchased or otherwise acquired Penumbra
securities between August 3, 2020 and December 15, 2020, inclusive
(the "Class Period"). Such investors are encouraged to join this
case by visiting the firm's site: www.bgandg.com/pen.
This class action seeks to recover damages against Defendants for
alleged violations of the federal securities laws under the
Securities Exchange Act of 1934.
The complaint alleges that throughout the class period, Defendants
made false and/or misleading statements and/or failed to disclose
that: (1) the Jet 7 Xtra Flex had known design defects that made it
unsafe for its normal use; (2) Penumbra did not adequately address
the risk of Jet 7 Xtra Flex causing serious injury and deaths,
which had in fact already occurred; (3) the Jet 7 Xtra Flex was
likely to be recalled due to its safety issues; and (4) as a
result, Penumbra's public statements as set forth above were
materially false and misleading at all relevant times.
A class action lawsuit has already been filed. If you wish to
review a copy of the Complaint you can visit the firm's site:
www.bgandg.com/pen or you may contact Peretz Bronstein, Esq. or his
Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz &
Grossman, LLC at 212-697-6484. If you suffered a loss in Penumbra
you have until March 16, 2021 to request that the Court appoint you
as lead plaintiff. Your ability to share in any recovery doesn't
require that you serve as a lead plaintiff.
Bronstein, Gewirtz & Grossman, LLC is a corporate litigation
boutique. Our primary expertise is the aggressive pursuit of
litigation claims on behalf of our clients. In addition to
representing institutions and other investor plaintiffs in class
action security litigation, the firm's expertise includes general
corporate and commercial litigation, as well as securities
arbitration. Attorney advertising. Prior results do not guarantee
similar outcomes.
Contacts:
Bronstein, Gewirtz & Grossman, LLC
Peretz Bronstein or Yael Hurwitz
212-697-6484 | info@bgandg.com [GN]
PICCOLA CUCINA: Rigano Suit Seeks Minimum, OT Pay Under FLSA & NYLL
-------------------------------------------------------------------
EMANUELE RIGANO, MARLENE SEPULVEDA LIDIA FOCACCI, BEATRICE CAROLINA
BRUSCOLI, and MARTINA CHARLTON, Individually and on Behalf of All
Other Persons Similarly Situated v. PICCOLA CUCINA GROUP, PICCOLA
CUCINA GROUP, INC., MGM THOMPSON LLC, R&G SOHO LLC, R&G SPRING LLC,
M&G 60th STREET LLC, PHILIP GUARDIONE and ALFIO SCRIVANO, Jointly
and Severally, Case No. 1:21-cv-00724 (S.D.N.Y., Jan. 26, 2021)
alleges that the Defendants failed to pay the Plaintiffs minimum
wages for all hours worked, premium pay for overtime, and
spread-of-hour pay, misappropriated tips through an illegal tip
pool, and failed to provide wage notices and adequate wage
statement in violation of the New York Labor Law and Fair Labor
Standards Act.
The Plaintiffs are employed by the Defendants as busser and
server.
The Defendant MGM Thompson is a New York limited liability company
that owns and operates Piccola Cucina Estiatorio Restaurant located
at 75 Thompson Street, in Manhattan.[BN]
The Plaintiffs are represented by:
Michael P. Mangan, Esq.
MANGAN GINSBERG LLP
80 Maiden Lane, Suite 304
New York, NY 10005
Telephone: (212) 248-2170
QIWI PLC: Bragar Eagel Reminds Investors of February 9 Deadline
---------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, reminds investors that class actions have been
commenced on behalf of stockholders of Qiwi plc (NASDAQ: QIWI), ACM
Research, Inc. (NASDAQ: ACMR), Triterras, Inc. (NASDAQ: TRIT), and
Restaurant Brands International (NYSE: QSR). Stockholders have
until the deadlines below to petition the court to serve as lead
plaintiff. Additional information about each case can be found at
the link provided.
Qiwi Plc (NASDAQ: QIWI)
Class Period: March 28, 2019 to December 9, 2020
Lead Plaintiff Deadline: February 9, 2021
Qiwi together with its subsidiaries, purports to operate electronic
online payment systems primarily in the Russia, Kazakhstan,
Moldova, Belarus, Romania, the United Arab Emirates, and
internationally.
On December 9, 2020, after the market closed, Qiwi filed a Form 6-K
with the SEC, announcing that the Central Bank of Russia had
imposed a fine of approximately $150,000 for deficient
record-keeping and reporting, and suspended the Company's conduct
most types of payments to foreign merchants and money transfers to
pre-paid cards from corporate accounts.
On this news, Qiwi's ADS price fell $2.80 per share, or 20.6%, to
close at $10.79 per share on December 10, 2020.
The complaint, filed on December 11, 2020, alleges that defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) Qiwi's internal controls
related to reporting and record-keeping were ineffective; (2)
consequently, the Central Bank of Russia would impose a monetary
fine upon the Company and impose restrictions upon the Company's
ability to make payments to foreign merchants and transfer money to
pre-paid cards; and (3) as a result, defendants' public statements
were materially false and/or misleading at all relevant times. When
the true details entered the market, the lawsuit claims that
investors suffered damages.
For more information on the Qiwi class action go to:
https://bespc.com/cases/QIWI
ACM Research, Inc. (NASDAQ: ACMR)
Class Period: March 6, 2019 to October 7, 2020
Lead Plaintiff Deadline: February 19, 2021
On October 8, 2020, analyst J Capital Research ("J Capital")
published a report concerning ACM, in which J Capital concluded
that ACM "is a fraud, over-reporting both revenue and profit." The
report cited, among other things, J Capital's visits to "sites in
China, Korea, and California" and "more than 40 interviews." J
Capital asserted that "[w]hat real profit the company has is
apparently being siphoned off to related parties." The J Capital
report concluded that ACM's revenue was overstated by 15-20% and
claimed to have "evidence that undisclosed related parties are
diverting revenue and profit from the company."
Following this news, ACM's stock price $1.09 per share, or 1.52%,
to close at $70.79 per share on October 8, 2020.
The complaint, filed on December 21, 2020, alleges that throughout
the Class Period defendants made materially false and misleading
statements regarding the Company's business, operational and
compliance policies. Specifically, defendants made false and/or
misleading statements and/or failed to disclose that: (i) the
Company's revenue and profits had been diverted to undisclosed
related parties; (ii) accordingly, the Company had materially
overstated its revenues and profits; and (iii) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
For more information on the ACM research class action go to:
https://bespc.com/cases/ACMR
Triterras, Inc. (NASDAQ: TRIT)
Class Period: August 20, 2020 to December 16, 2020
Lead Plaintiff Deadline: February 19, 2021
Triterras is a fintech company focused on trade and trade finance.
It operates Kratos, a commodity trading and trade finance platform
that connects commodity traders to trade and source capital from
lenders directly online. Triterras formed via merger of Netfin and
Triterras Fintech Pte. Ltd., which closed on November 11, 2020.
Rhodium Resources Pte. Ltd. ("Rhodium") is a commodity trading
business controlled by Srinivas Koneru, the Company's Chief
Executive Officer ("CEO"). Rhodium enabled the launch of the Kratos
platform, and substantially all of the Company's users were
referred to it by Rhodium.
On December 17, 2020, Triterras stated that Rhodium was seeking a
moratorium to shield itself from creditor actions while it planned
a restructuring of its debts and continue its business as a going
concern.
On this news, the Company's share price fell $4.11, or 31%, to
close at $9.09 per share on December 17, 2020. The Company's
warrant price fell $1.09, or 35%, to close at $2.01 per warrant on
December 17, 2020.
The complaint, filed on December 21, 2020, alleges that throughout
the Class Period defendants made materially false and/or misleading
statements, as well as failed to disclose material adverse facts
about the Company's business, operations, and prospects.
Specifically, defendants failed to disclose to investors: (1) the
extent to which Company's revenue growth relied on Triterras'
relationship with Rhodium to refer users to the Kratos platform;
(2) that Rhodium faced significant financial liabilities that
jeopardized its ability to continue as a going concern; (3) that,
as a result, Rhodium was likely to refer fewer users to the
Company's Kratos platform; and (4) that, as a result of the
foregoing, defendants' positive statements about the Company's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
For more information on the Triterras class action go to:
https://bespc.com/cases/TRIT
Restaurant Brands International, Inc. (NYSE: QSR)
Class Period: April 29, 2019 to October 28, 2019
Lead Plaintiff Deadline: February 19, 2021
On April 24, 2018, Restaurant Brands announced a new strategy
designed to improve performance within the Company's Tim Hortons
brand. Specifically, the "Winning Together Plan" would focus on
three key pillars: restaurant experience; product excellence; and
brand communications.
On March 20, 2019, Restaurant Brands announced "Tims Rewards" -- a
new loyalty program for Tim Hortons customers in Canada. Under the
Tims Rewards program, customers would be eligible for a free hot
brewed coffee, hot tea, or baked good after every seventh paid
visit to a participating Tim Hortons restaurant. On April 10, 2019,
Restaurant Brands announced that it was expanding the Tims Rewards
program to include customers in the United States.
Throughout the Class Period, Defendants repeatedly touted the
implementation and execution of the Company's Winning Together Plan
and Tims Rewards loyalty program. On the heels of the Company
touting the benefits of these initiatives, the Company completed
two stock offerings on or about August 12, 2019, and September 5,
2019, collectively resulting in proceeds of approximately $3
billion to insiders.
On October 28, 2019, mere weeks after the offerings were completed,
investors learned the truth about Tim Hortons's hyped growth
initiatives when the Company announced disappointing financial
results for the third quarter ended September 30, 2019.
Specifically, Defendants acknowledged that "results at Tim Hortons
were not where we want them to be with global comparable sales
dipping into negative territory" and admitted that "discounting
[associated with Tims Rewards] is slightly more than offsetting the
traffic levels, which is causing a little bit of softness in
sales."
On this news, the price of Restaurant Brands common stock declined
$2.59 per share, or approximately 4%, from a close of $68.45 per
share on October 25, 2019, to close at $65.86 per share on October
28, 2019.
The complaint, filed on December 21, 2020, alleges that throughout
the Class Period defendants made materially false and/or misleading
statements, as well as failed to disclose material adverse facts,
about the Company's business and operations. Specifically,
defendants misrepresented and/or failed to disclose that: (1) the
Company's Winning Together Plan was failing to generate
substantial, sustainable improvement within the Tim Hortons brand;
(2) the Tims Rewards loyalty program was not generating sustainable
revenue growth as increased customer traffic was not offsetting
promotional discounting; and (3) as a result, defendants'
statements about the Company's business, operations, and prospects
lacked a reasonable basis.
For more information on the Restaurant Brands class action go to:
https://bespc.com/cases/QSR
About Bragar Eagel & Squire, P.C.
Bragar Eagel & Squire, P.C. is a nationally recognized law firm
with offices in New York, California, and South Carolina. The firm
represents individual and institutional investors in commercial,
securities, derivative, and other complex litigation in state and
federal courts across the country. For more information about the
firm, please visit www.bespc.com. Attorney advertising. Prior
results do not guarantee similar outcomes.
Contact Information:
Bragar Eagel & Squire, P.C.
Brandon Walker, Esq.
Melissa Fortunato, Esq.
Marion Passmore, Esq.
(212) 355-4648
investigations@bespc.com
www.bespc.com [GN]
QUANTUMSCAPE CORP: Lieff Cabraser Reminds of March 8 Deadline
-------------------------------------------------------------
The law firm of Lieff Cabraser Heimann & Bernstein, LLP on Jan. 27
disclosed that class action litigation has been filed on behalf of
investors who purchased or otherwise acquired the securities of
QuantumScape Corporation f/k/a Kensington Capital Acquisition Corp.
("QuantumScape" or the "Company") (NYSE: QS; QS.WS) between
November 27, 2020 and December 31, 2020, inclusive (the "Class
Period").
If you purchased or otherwise acquired QuantumScape securities
during the Class Period, you may move the Court for appointment as
lead plaintiff by no later than March 8, 2021. A lead plaintiff is
a representative party who acts on behalf of other class members in
directing the litigation. Your share of any recovery in the actions
will not be affected by your decision of whether to seek
appointment as lead plaintiff. You may retain Lieff Cabraser, or
other attorneys, as your counsel in the action.
QuantumScape investors who wish to learn more about the litigation
and how to seek appointment as lead plaintiff should click here or
contact Sharon M. Lee of Lieff Cabraser toll-free at
1-800-541-7358.
Background on the QuantumScape Securities Class Litigation
QuantumScape, incorporated in Delaware and headquartered in San
Jose, California, develops battery technology for electric vehicles
and other applications.
The actions allege that, throughout the Class Period, defendants
misrepresented and/or failed to disclose: (1) that QuantumScape's
battery technology was not sufficient for electric vehicle
performance; (2) the Company's battery technology likely provided
no meaningful improvement over existing battery technology; and (3)
the successful commercialization of the QuantumScape's battery
technology was subject to undisclosed and significant risks and
uncertainties.
On January 4, 2021, Seeking Alpha published an article describing
multiple risks with QuantumScape's solid-state battery development
and design that render the batteries "completely unacceptable for
real world field electric vehicles." According to the article,
QuantumScape's batteries "will only last for 260 cycles or about
75,000 miles of aggressive driving" and since solid-state batteries
are sensitive to temperature, "the power and cycle tests at 30 and
45 degrees above would have been significantly worse if run even a
few degrees lower." On this news, the price of QuantumScape's Class
A common stock fell $34.49 per share, or 40.84%, from its closing
price of $84.45 on December 31, 2020, to close at $49.96 per share
on January 4, 2021, on heavy trading volume.
About Lieff Cabraser
Lieff Cabraser Heimann & Bernstein, LLP, with offices in San
Francisco, New York, Nashville, and Munich, is a nationally
recognized law firm committed to advancing the rights of investors
and promoting corporate responsibility.
The National Law Journal has recognized Lieff Cabraser as one of
the nation's top plaintiffs' law firms for fourteen years. In
compiling the list, the National Law Journal examines recent
verdicts and settlements and looked for firms "representing the
best qualities of the plaintiffs' bar and that demonstrated unusual
dedication and creativity." Law360 has selected Lieff Cabraser as
one of the Top 50 law firms nationwide for litigation, highlighting
our firm's "laser focus" and noting that our firm routinely finds
itself "facing off against some of the largest and strongest
defense law firms in the world." Benchmark Litigation has named
Lieff Cabraser one of the "Top 10 Plaintiffs' Firms in America."
For more information about Lieff Cabraser and the firm's
representation of investors, please visit
https://www.lieffcabraser.com/. [GN]
RIPPLE LABS: Faces Class Action Over Unregistered XRP Sales
-----------------------------------------------------------
Yogita Khatri, writing for The Block, reports that a new
class-action lawsuit has been filed against Ripple, its CEO Brad
Garlinghouse and its subsidiary XRP II, LLC.
Filed in the Middle District Court of Florida on Jan. 25, the case
alleges that the defendants sold "millions of dollars (or more)" of
XRP without registering it either with federal or Florida
authorities.
"On numerous occasions, Defendants made public statements claiming
that XRP was not a security, when in fact it is," the lawsuit
claims. "Defendants actively concealed from investors the true
nature of XRP."
The lawsuit is filed by Tyler Toomey, a resident of Florida. Toomey
claims that he owned 135 XRP in November 2020 (worth about $100 at
the time) and sold it in two transactions in December 2020 at a
loss of about 50%.
To be sure, that is a negligible amount, but since the lawsuit is
class-action, other similarly situated XRP investors in Florida
could join Toomey in the case. "Plaintiff seeks to represent a
class defined as all persons or entities in the State of Florida
who purchased XRP," the lawsuit states.
The Block has reached out to Ripple for comments and will update
this story should we hear back.
This is not the first time the defendants are facing a class-action
lawsuit. In 2018, investor Vladi Zakinov filed a case in California
alleging that XRP is a security controlled by Ripple. At the time,
another investor Ryan Coffey also filed a suit in California
against the defendants, alleging that XRP is a security.
After years of regulatory uncertainty, in December, the U.S.
Securities and Exchange Commission (SEC) also sued Ripple, the CEO
and co-founder Chris Larsen. The agency said it views XRP as a
security and alleged that the defendants engaged in unregistered
securities sales.
Ripple has maintained that XRP is not a security and has vowed to
fight the SEC charges. Ripple and the SEC are set to meet for a
pretrial conference on February 22. Their joint letter describing
the facts of the case is due February 15. [GN]
ROBINHOOD MARKETS: Faces Baird Suit Over Unfair Trading Practices
-----------------------------------------------------------------
STEVEN BAIRD, individually and on behalf of all others similarly
situated, Plaintiff v. ROBINHOOD MARKETS, INC.; ROBINHOOD
FINANCIAL, LLC; and ROBINHOOD SECURITIES, LLC, Defendants, Case
4:21-cv-00061-WS-MAF (N.D. Fla., Jan. 29, 2021) is an action for
damages under the Florida's Deceptive and Unfair Trade Practices
Act ("FDUPTA") caused by the Defendants' unfair and deceptive
practice of preventing individual investors from trading on their
Robinhood accounts.
The Plaintiff alleges in the complaint that early in the year 2021,
a collective of individual investors, organizing through Websites
like reddit.com, caused massive disruptions in markets, in
particular driving up otherwise unexceptional stocks (e.g. GameStop
and AMC) to unprecedented values. In response to the disruptions,
on January 28, 2021, Robinhood halted the trading of several
publicly traded stocks such as GameStop, AMC, Nokia, and
Blackberry, making it impossible for its individual investors to
buy or sell the affected securities, the suit says.
As a result of Robinhood's decision to restrict user trades,
millions of its customers, including the Plaintiff, were unable to
freely trade on the stock market. At the same time, institutional
investors with whom Robinhood has beneficial relationships -- but
are not Robinhood customers -- could continue to trade freely. This
market manipulation created an unfair disadvantage for the
Plaintiff and the Class to their detriment, for the benefit of
institutional investors, added the suit.
Robinhood Markets, Inc. designs application software. The Company
develops application for cash management such as stocks,
exchange-traded funds, options, and cryptocurrency. [BN]
The Plaintiff is represented by:
Jason Zimmerman, Esq.
GRAY ROBINSON, P.A.
301 East Pine Street, Suite 1400
Orlando, FL 32801
Telephone: (407) 843-8880
Facsimile: (407) 244-5690
E-mail: jason.zimmerman@gray-robinson.com
SAFE FOR HOME: Cota Files ADA Suit in S.D. California
-----------------------------------------------------
A class action lawsuit has been filed against Safe for Home
Products LLC, et al. The case is styled as Julissa Cota,
individually and on behalf of all others similarly situated v. Safe
for Home Products LLC (doing business as Naturepedic), an Ohio
limited liability company Does 1 to 10, inclusive; Case No.
3:21-cv-00144-GPC-AHG (S.D. Cal., Jan. 26, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Safe For Home Products LLC -- https://www.naturepedic.com/ -- was
founded in 2008. The company's line of business includes the retail
sale of household furniture. [BN]
The Plaintiff is represented by:
Thiago M. Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Email: thiago@wilshirelawfirm.com
SAKS INC: April 26 Settlement Fairness Hearing Set
--------------------------------------------------
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION AND
INFORMATION REGARDING PROPOSED SETTLEMENT OF
CLASS ACTION CLAIMS, SETTLEMENT HEARING,
AND RIGHT TO OBJECT, OPT OUT, and APPEAR AT HEARING
This notice is for all owners of Saks Inc. ("Saks") common stock
between July 29, 2013 through November 4, 2013 (the date of the
consummation of the acquisition of Saks by Hudson's Bay Company
("HBC")), together with their successors and assigns (the
"Class").
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A
CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to CPLR 904 and 908 and an Order
of the Supreme Court of the State of New York, County of New York
(the "Court") of the pendency of the above-captioned consolidated
shareholder class action (the "Action") that may affect your rights
if you are a member of the Class.
YOU ARE ALSO HEREBY NOTIFIED that Plaintiffs in the Action, on
behalf of themselves and the other members of the Class, have
reached a proposed settlement of the Action for $21,000,000 in cash
(the "Settlement") on the terms and conditions set forth in a
Stipulation and Agreement of Settlement, Compromise, and Release
dated November 13, 2020 (the "Stipulation"), as described in more
detail in the full printed Notice of Pendency of Class Action and
Information Regarding Proposed Settlement of Class Action Claims,
Settlement Hearing, and Right to Object, Opt Out, and Appear at
Hearing (the "Notice").
PLEASE VISIT THE SETTLEMENT WEBSITE AT
WWW.SAKSSECURITIESSETTLEMENT.COM FOR THE MOST UP TO DATE
INFORMATION ABOUT THE TIME, PLACE AND MANNER OF THE SETTLEMENT
HEARING WHICH YOU MAY ATTEND VIA INTERNET OR TELEPHONE.
A settlement hearing will be held on April 26, 2021, at 10:00 a.m.,
via Microsoft Teams in the Supreme Court of the State of New York,
County of New York, 60 Centre Street, New York, New York 10007. At
the Settlement Hearing, the Court will determine, among other
things: (a) whether the Class should be certified; (b) whether the
proposed Settlement on the terms and conditions provided in the
Stipulation is fair, reasonable, and adequate to the Class, and
should be approved; (c) whether the Action should be dismissed with
prejudice and the releases specified and described in the
Stipulation (and in the Notice) should be given effect;
(d) whether the application by Plaintiffs' Counsel for an award of
attorneys' fees and reimbursement of litigation expenses should be
approved; and (e) whether the applicable by Plaintiffs' Counsel for
an incentive award to Plaintiffs should be approved.
IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY
THE PENDING ACTION AND THE SETTLEMENT. If you have not yet received
the Notice, you may obtain copies of it by contacting the
Settlement Administrator at the address set forth below. Copies of
the Notice and Claim Form can also be downloaded from the website
maintained by the Settlement Administrator,
www.SaksSecuritiesSettlement.com.
If the Settlement is approved by the Court and the Effective Date
occurs, the Net Settlement Fund will be distributed on a pro rata
basis to "Authorized Claimants," which means Eligible Class Members
who submit a Claim Form to the Settlement Administrator that is
approved by the Court for payment from the Net Settlement Fund.
Eligible Class Members means Class Members who held shares of Saks
common stock at the closing of the acquisition of Saks by HBC and
therefore received or were entitled to receive the merger
consideration for their eligible shares. Eligible Class Members
exclude all Excluded Persons (as defined in the Stipulation) and
all Class Members who have delivered a timely and valid request for
exclusion from the Settlement. Pursuant to the terms of the
Stipulation, each Authorized Claimant will be eligible to receive a
pro rata payment from the Net Settlement Fund equal to the product
of (x) the number of Eligible Shares held by the Authorized
Claimant and (y) the "Per-Share Recovery" for the Settlement, which
will be determined by dividing the total amount of the Net
Settlement Fund by the total number of Eligible Shares held by all
Authorized Claimants, as determined by the Settlement Administrator
in accordance with the Stipulation.
To qualify for a distribution from the Settlement, you must be an
Eligible Class Member and you must submit a timely and valid Claim
Form. Claim Forms must be submitted no later than April 5, 2021.
Eligible Class Members who do not submit a timely and valid Claim
Form will not receive a distribution from the Settlement and will
be bound in all respects by the Stipulation and the Judgment to be
entered in the Action. Instructions on how to submit a Claim Form,
and a summary of how the Net Settlement Fund will be distributed to
Authorized Claimants, are set forth in the Notice.
Any person or entity falling within the definition of the Class may
exclude themselves from the Class by submitting to Plaintiffs'
Counsel a request for exclusion so that it is received no later
than April 5, 2021, in accordance with the instructions set forth
in the Notice. All persons who submit valid and timely Requests for
Exclusion in the manner set forth in the Notice shall have no
rights under the Stipulation, shall not share in the distribution
of the Net Settlement Fund, and shall not be bound by the
Stipulation or the Judgment entered in the Action. All Class
Members who do not timely submit valid requests for exclusion shall
be deemed to have waived their rights to be excluded from the
Class, shall be barred from making such a request in the Action or
any other proceeding, and shall be bound by the Settlement and the
Stipulation in all respects.
Any objections to the proposed Settlement and/or Plaintiffs'
Counsel's application for an award of fees and expenses to
Plaintiffs' Counsel or for an incentive award to Plaintiffs must be
filed with the Clerk of Court and delivered to representatives of
Plaintiffs' Counsel, Defendants' Counsel, and the Companies'
Counsel so that they are received no later than April 5, 2021 in
accordance with the instructions set forth in the Notice.
All questions about this Summary Notice, the Notice and Claim
Forms, and the proposed Settlement should be directed to the
Settlement Administrator or Plaintiffs' Counsel. Visit
www.SaksSecuritiesSettlement.com or call toll-free at
1-833-707-1446.
Requests for the Notice or Claim Forms should be made to:
Saks Securities Settlement
c/o JND Legal Administration
P.O. Box 91062
Seattle, WA, 98111
1-833-707-1446
info@SaksSecuritiesSettlement.com
Inquiries other than requests for the Notice or Claim Forms should
be made to the following representative of Plaintiffs' Counsel:
Benjamin Y. Kaufman, Wolf Haldenstein Adler Freeman & Herz LLP, 270
Madison Avenue, New York, NY 10016; (212) 545-4600;
kaufman@whafh.com.
DO NOT CALL OR WRITE THE COURT REGARDING THIS NOTICE.
BY ORDER OF THE SUPREME COURT
OF THE STATE OF NEW YORK,
COUNTY OF NEW YORK [GN]
SECURITAS SECURITY: Desrosiers Sues Over Security Guards' Unpaid OT
-------------------------------------------------------------------
JOSEPH DESROSIERS, individually and on behalf of all others persons
similarly situated, Plaintiff v. SECURITAS SECURITY SERVICES USA,
INC., Defendant, Case No. 1:21-cv-00752 (S.D.N.Y., January 27,
2021) brings this class and collective action complaint against the
Defendant for its alleged unlawful employment policies, practices,
and procedures that violated the Fair Labor Standards Act and the
New York Labor Law.
The Plaintiff was employed by the Defendant as a security guard
from in or around 2010 through the present.
The Plaintiff claims that during his employment with the Defendant,
he worked more than 40 hours approximately every other week.
Although the Defendant paid him an hourly rate, he was never paid
overtime premium pay for hours he worked over 40 at one and
one-half times his regular hourly rate.
The Plaintiff affirms that other security guards were not also paid
overtime premium pay by the Defendant. Moreover, the Defendant
failed to provide him and other security guards with the Notice and
Acknowledgment of Payrate and Payday when they were hired, and with
accurate wage statements with any wage payment.
Securitas Security Services USA, Inc. provides facility security
services throughout the U.S. [BN]
The Plaintiff is represented by:
Douglas B. Lipsky, Esq.
Alfons D' Auria, Esq.
LIPSKY LOWE LLP
420 Lexington Ave., Suite 1830
New York, NY 10170
Tel: (212) 392-4772
Fax: (212) 444-1030
E-mail: doug@lipskylowe.com
alfons@lipskylowe.com
SEPTEM COMA: Sends Unsolicited Text Messages, Brady Suit Alleges
----------------------------------------------------------------
JAMES BRADY, individually and on behalf of all others similarly
situated, Plaintiff v. SEPTEM COMA INCORPORATED D/B/A SOUTH
SACRAMENTO CARE CENTER, Defendant, Case No. 2:21-cv-00160-WBS-JDP
(E.D. Cal., January 27, 2021) is a class action against the
Defendant for violations of the Telephone Consumer Protection Act.
According to the complaint, the Defendant sent telemarketing text
messages to the cellular telephone numbers of the Plaintiff and
Class members using an automatic telephone dialing system without
obtaining their express written consent. As a result of the
Defendant's alleged illegal conduct, the Plaintiff and the Class
were harmed including invasion of their privacy, harassment,
aggravation, and disruption of daily life.
Septem Coma Incorporated, doing business as South Sacramento Care
Center, is a state licensed cannabis dispensary located in
Sacramento, California. [BN]
The Plaintiff is represented by:
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
1925 Century Park E #1700
Los Angeles, CA 90067
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
SHR PALO ALTO: Website Lacks Accessibility Info, Arroyo Suit Says
-----------------------------------------------------------------
Rafael Arroyo v. SHR Palo Alto, LLC, a Delaware Limited Liability
Company, Case No. 4:21-cv-00341-DMR (N.D. Cal., Jan. 13, 2021) is
brought on behalf of the Plaintiff and all other similarly
situated, alleging violations of the Defendant of the California's
Unruh Civil Rights Act and the Americans with Disabilities Act with
respect to its reservation policies and practices of a place of
lodging.
According to the complaint, the Defendant failed to provide
information on the hotel's reservation Website that would permit
Plaintiff to determine if there are rooms that would work for
people with physical disabilities like him.
As a result of the Defendant's failure to comply with its ADA
obligations, the Plaintiff is unable to engage in an online booking
of the hotel room with any confidence or knowledge about whether
the room will actually work for him due to his disability, the suit
says.
Mr. Arroyo is a California resident with physical disabilities who
is substantially limited in his ability to walk. He is a paraplegic
and uses a wheelchair for mobility.
SHR Palo Alto, LLC, a Delaware limited liability company, owns and
operates the Four Seasons Hotel Silicon Valley located in Palo
Alto, California.[BN]
The Plaintiff is represented by:
Raymond Ballister Jr., Esq.
Russell Handy, Esq.
Amanda Seabock, Esq.
Zachary Best, Esq.
CENTER FOR DISABILITY ACCESS
8033 Linda Vista Road, Suite 200
San Diego, CA 92111
Telephone: (858) 375-7385
Facsimile: (888) 422-5191
E-mail: amandas@potterhandy.com
SIGNET BUILDERS: Vanegas Seeks to Recover Proper Overtime Pay
-------------------------------------------------------------
JOSE AGEO LUNA VANEGAS, on behalf of himself and all others
similarly situated v. SIGNET BUILDERS, INC., Case No. 3:21-cv-00054
(W .D. Wisc., Jan. 26, 2021) is an action for damages and
declaratory relief by the Plaintiff against the employer for which
he worked for a number of years between 2004 and 2019.
The Plaintiff contends that the Defendant violated its obligations
to him, and all others similarly situated Mexican H-2A guest
workers, under federal law by failing to pay them overtime wages as
required by the Fair Labor Standards Act. He seeks recovery of
unpaid wages, liquidated damages, costs of litigation, and
attorney's fees. He further alleges that Defendant Signet Builders,
Inc. violated his rights and the rights of other similarly situated
workers under the FLSA.
The Plaintiff Vanegas is a citizen of Mexico who was legally
admitted to the United States on a temporary basis pursuant to 8
U.S.C. section 1101(a)(15)(H)(ii)(a) to work for the Defendant
building livestock confinement structures in several U.S. states
for various years between 2004 and 2019. In 2019, the Plaintiff
worked for the Defendant in Wisconsin for approximately three
months and Indiana for approximately five months.
Signet Builders is a construction company in interstate commerce,
providing services to businesses in Wisconsin, Iowa, Indiana, and
other U.S. states.[BN]
The Plaintiff is represented by:
Jennifer J. Zimmermann, Esq.
Erica Sweitzer-Beckman, Esq.
LEGAL ACTION OF WISCONSIN
744 Williamson Street, Suite 200
Madison, WI 53703
Telephone: (608) 256-3304
Facsimile: (608) 256-0510
E-mail: jjz@legalaction.org
elb@legalaction.org
SIGNIFY HEALTH: Barry Sues Over Unsolicited Telemarketing Calls
---------------------------------------------------------------
DAVID A. BARRY, individually and on behalf of all others similarly
situated, Plaintiff v. SIGNIFY HEALTH, LLC, Defendant, Case No.
3:21-cv-00175-G (N.D. Tex., January 27, 2021) is a class action
complaint brought against the Defendant seeking redress for
violations of the Telephone Consumer Protection Act.
According to the complaint, the Defendant started placing calls to
the Plaintiff's cellular telephone number ending in 2305 in October
2020 in an attempt to schedule a home health assessment. The
Plaintiff answered the Defendant's calls on multiple occasions,
including October 6, 2020, November 19, 2020, and January 14, 2021,
and informed the Defendant that he was not interested in the
Defendant's services. Despite the Plaintiff's multiple requests to
the Defendant to cease its calls, the Defendant continued its
barrage of solicitation calls.
The Plaintiff contends that he never provided his cellular phone
number to the Defendant nor his "prior express consent" to receive
the Defendant's invasive solicitation phone calls, which have
severely disrupted his daily life and general well-being.
Nevertheless, the Defendant's phone harassment campaign and illegal
telemarketing activities have caused the Plaintiff actual harm, the
suit says.
Signify Health, LLC specializes in assisting healthcare providers
facilitate healthcare services to individuals nationwide. [BN]
The Plaintiff is represented by:
Mohammed O. Badwan, Esq.
Victor T. Metroff, Esq.
SULAIMAN LAW GROUP, LTD.
2500 S. Highland Ave., Suite 200
Lombard, IL 60148
Telephone: (630) 575-8180
E-mail: mbadwan@sulaimanlaw.com
vmetroff@sulaimanlaw.com
STANWELL CORP: Manipulates Electricity Pricing System, Suit Says
----------------------------------------------------------------
Energy reports that law firm Piper Alderman has filed the nation's
largest energy class action suit, on behalf of over 50,730
electricity customers, in the Federal Court of Australia against
two Queensland state owned electricity generators.
The QLD Energy Class Action is a legal claim being brought against
electricity generators Stanwell and CS Energy for allegedly
manipulating the electricity pricing system and artificially
inflating consumers' electricity bills.
The class action was initiated on 18 June 2020 by Piper Alderman
and is funded by LCM (an Australian litigation funder). The action
is brought on behalf of anyone who paid for electricity in
Queensland at any point from 20 January 2015 to 20 January 2021 and
who has registered to participate.
The majority of registrants are residential energy customers.
However, there are also over 1,600 businesses registered. These
comprise ASX listed companies, industrial users of electricity and
SMEs.
The claim filed is seeking damages on behalf of registered
participants only, however, Piper Alderman has indicated that it
will apply to join new registrants to the action providing a final
opportunity for electricity consumers to join the action if they
wish.
As a litigation funder is covering the legal costs, it does not
cost anything to join the action. The QLD Energy Class Action is
based on a "no win, no fee" basis.
Greg Whyte, head of Piper Alderman's Dispute Resolution and
Litigation team in Brisbane, said, "There is a lot of complexity in
electricity generation and power prices.
"Our team has spent over two years investigating Stanwell and CS
Energy's unlawful conduct.
"The unlawful conduct occurred at the generation stage, and your
retailer simply passed that cost through to consumers.
"This is why this action is available to all Queensland businesses
and residents.
"The facts indicate, and we will seek to prove, that the defendants
manipulated the wholesale cost of electricity for their own profit.
It amounts to a hidden tax paid by Queenslanders.
"We brought this action on behalf of Queensland based businesses
and households who have all been affected. The conduct of Stanwell
and CS Energy has had a devastating effect on the Queensland
economy.
"Queenslanders who paid for electricity between January 2015 and
January 2021 are invited to visit www.QLDEnergyClassAction.com.au
to register for the action. I encourage them all to join."
In a media release, Stanwell said, "The proposed class action is
opportunistic and entrepreneurial, funded by an international
litigation funder that treats class actions as a means of
generating profits.
"Stanwell strongly rejects Piper Alderman's allegations and will
vigorously defend the allegations in the courts.
"At no stage has the Australian Energy Regulator found Stanwell
misused its market power or breached market rules.
"Many of the allegations being made by Piper Alderman quote a 2016
report by the Grattan Institute.
"The Australian Energy Market Commission - which makes the rules
for the National Electricity Market - has reviewed the Grattan
Institute's 2016 report and dismissed many of the claims contained
in it, including key allegations which Piper Alderman is levelling
against Stanwell.
"Queensland taxpayers would bear the costs of defending this class
action because it will reduce the dividends which Stanwell can
deliver to help fund vital health, education and police services."
[GN]
STATE FARM: Bauer Sues Over Excessive Cost of Insurance Charges
---------------------------------------------------------------
KATHY BAUER, individually and on behalf of all others similarly
situated, Plaintiff v. STATE FARM LIFE INSURANCE COMPANY,
Defendant, Case No. 1:21-cv-00464-SDG (N.D. Ga., Jan. 29, 2021) is
an action against the Defendant for unlawful and excessive cost of
insurance ("COI") charges to the universal life insurance policies
issued by State Farm and its predecessors in interest issued using
FORM-94030 (the "Subject Policies").
According to the complaint, the Subject Policies "unbundle" the
various charges and credits charged to the policy owner, that is,
the monthly deductions are broken down into an array of discrete
charges and credits. State Farm is contractually bound to deduct
only those charges that are explicitly identified and authorized by
the terms of the Subject Policies.
The Defendant has been allegedly breaching its contractual
commitment by (a) basing its COI charges on non-permissible
considerations, such as profit and lapse rates, and (b) not
reducing its COI charges in light of the well-established decreased
mortality rates. These breaches allowed State Farm to convert COI
charges from a cost-recovery mechanism into a profit vehicle. By
retaining the difference between its projected mortality expenses
and the COI charges incurred by Plaintiff and the Class, State Farm
has earned tens -- if not hundreds -- of millions of dollars in
extra profit, the suit says.
State Farm Life Insurance Company operates as an insurance company.
The Company offers life insurance products, as well as insures
cars, boats, motorcycles, homes, and businesses. [BN]
The Plaintiff is represented by:
Roy E. Barnes, Esq.
J. Cameron Tribble, Esq.
BARNES LAW GROUP, LLC
31 Atlanta Street
Marietta, GA 30060
Telephone: (770) 227-6375
Facsimile: (770) 227-6373
E-mail: roy@barneslawgroup.com
ctribble@barneslawgroup.com
–and–
James J. Pizzirusso, Esq.
Nathaniel C. Giddings, Esq.
Melinda R. Coolidge, Esq.
HAUSFELD LLP
1700 K Street, NW
Washington, DC 20006
Telephone: (202) 540-7200
Facsimile: (202)540-7201
E-mail: jpizzirusso@hausfeld.com
ngiddings@hausfeld.com
mcoolidge@hausfeld.com
-and-
Kimberly Fetsick, Esq.
HAUSFELD LLP
33 Whitehall Street
New York, NY 10004
Telephone: (646) 357-1100
Facsimile: (212) 202-4322
E-mail: kfetsick@hausfeld.com
–and–
Sophia Goren Gold, Esq.
KALIEL PLLC
1875 Connecticut Avenue NW, 10th Floor
Washington, DC 20009
Telephone: (202) 350-4783
Facsimile: (202) 871-8180
E-mail: sgold@kalielpllc.com
–and–
David M. Wilkerson, Esq.
THE VAN WINKLE LAW FIRM
11 N. Market Street
Asheville, NC 28801
Telephone: (828) 258-2991
Facsimile: (828) 527-2767
E-mail:dwilkerson@vwlawfirm.com
–and–
Larry D. Lahman, Esq.
Roger L. Ediger, Esq.
MITCHELL DeCLERK
202 West Broadway Avenue
Enid, OK 73701
Telephone: (580) 234-5144
Facsimile: (580) 234-8890
E-mail: larry.lahman@sbcglobal.net
rle@mdpllc.com
TENNESSEE: Atkins Files Certiorari Petition in Civil Rights Suit
----------------------------------------------------------------
Plaintiffs GREGORY ATKINS, et al., filed with the Supreme Court of
United States a petition for a writ of certiorari in the matter
styled GREGORY ATKINS, CHRISTOPHER GOOCH, KEVIN PROFFITT, and
THOMAS ROLLINS, JR., on behalf of themselves and all others
similarly situated, Petitioners v. DR. KENNETH WILLIAMS, Medical
Director, Tennessee Department of Correction, in his official
capacity, Respondent, Case No. 20-941.
Response is due on February 12, 2021.
Petitioners Atkins, et al., petition for a writ of certiorari to
review the judgment of the United States Court of Appeals for the
Sixth Circuit in the case titled GREGORY ATKINS, CHRISTOPHER GOOCH,
KEVIN PROFFITT, and THOMAS ROLLINS, JR., on behalf of themselves
and all others similarly situated, Plaintiffs-Appellants v. TONY
PARKER, Commissioner, Tennessee Department of Corrections, and DR.
KENNETH WILLIAMS, Medical Director, Tennessee Department of
Corrections, in their official capacities, Defendants-Appellees,
Case No. 19-6243.
According to the complaint, Gregory Atkins and his fellow
plaintiffs represent a certified Class made up of Tennessee
prisoners suffering from hepatitis C. In 2016, they sued several
officials in the state Department of Corrections, including its
medical director, Dr. Kenneth Williams, alleging that the officials
acted with deliberate indifference to the Class' serious medical
needs in violation of the Eighth Amendment's prohibition on cruel
and unusual punishment. After a four-day bench trial, the District
Court rejected the Class' claim.
Petitioners only appealed the judgment with respect to Dr.
Williams. The Sixth Circuit affirmed by a 2-to-1 vote.
The federal courts of appeals have split on whether a lack of funds
or other resources can defeat a deliberate indifference claim by
undercutting the mental state requirement. In the typical scenario,
a State has underfunded its prison system, preventing officials
from delivering medical treatment, security, or proper sanitation.
Going to the other extreme, the Sixth Circuit held in this case
that inmates cannot even get an injunction if the defendant shows
that poor prison conditions resulted from a lack of funds.
The questions presented in this petition for a writ of certiorari
are:
1. Does the unavailability of funds or other resources negate the
subjective component of a deliberate indifference claim under the
Eighth Amendment?
2. If lack of funds is a valid defense at all, can a defendant
assert this defense when sued in his or her official capacity for
injunctive relief? [BN]
Plaintiffs-Appellants-Petitioners Gregory Atkins, et al., are
represented by:
Michael Joseph Wall, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa L. Parks Avenue, Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
E-mail: michaelw@bsjfirm.com
TESLA INC: Ninth Cir. Upholds Dismissal of Wochos Securities Suit
-----------------------------------------------------------------
In the case, GREGORY WOCHOS, Individually and on Behalf of All
Others Similarly Situated, Plaintiff, and KURT FRIEDMAN; UPPILI
SRINIVASAN, Individually and on Behalf of All Others Similarly
Situated, Plaintiffs-Appellants v. TESLA, INC.; ELON MUSK; and
DEEPAK AHUJA, Defendants-Appellees, Case No. 19-15672 (9th Cir.),
the U.S. Court of Appeals for the Ninth Circuit affirmed the
district court's dismissal of the Plaintiffs' Second Amended
Complaint with prejudice.
Plaintiffs Kurt Friedman and Uppili Srinivasan, on behalf of a
putative class of shareholders, allege that Tesla and two of its
officers, Chairman and CEO Elon Musk and CFO Deepak Ahuja misled
the investing public during 2017 about Tesla's progress in building
production capacity for the Model 3, its first mass-market electric
vehicle.
As of 2016, Tesla remained a "niche" carmaker, delivering only
76,000 electric vehicles a year. All of these were luxury vehicles
with a suggested retail price of over $74,000. For years, though,
Musk had been hoping to expand Tesla's production into mass-market
electric vehicles, and the fruit of those efforts was the "Model
3."
In 2016, Tesla first announced concrete plans to build the Model 3,
which was envisioned as a sedan with a recommended retail price
starting at $35,000. At such prices, Musk anticipated selling
hundreds of thousands of cars a year by 2018. To achieve this
scale of production, Tesla planned to develop fully automated
production lines for the Model 3 at a factory in Fremont,
California, and to produce the vehicle's battery in-house at a
factory in Reno, Nevada, called "Gigafactory 1."
In a May 2017 quarterly report filed with the U.S. Securities and
Exchange Commission ("SEC"), Tesla described its production goals
for the Model 3, but it warned that the production of the vehicle
might not be a seamless process. It further cautioned that it had
"no experience to date in manufacturing vehicles" at such a high
volume and that its "ability to achieve these plans" depended on a
number of risk factors.
The Plaintiffs' claims in the case are based on a number of
statements Tesla made to investors between May 3, 2017 and Nov. 1,
2017, during the ramp-up to mass production of the Model 3. The
Plaintiffs' theory is that, during the "Class Period," Tesla
announced Model 3 production goals for the end of 2017 that it knew
it would not be able to achieve, and it repeatedly reaffirmed that
it was on track to reach those targets, even as the end-of-the-year
deadline drew closer and as delays grew increasingly significant.
The Plaintiffs start with May 3, 2017, because on that date Tesla
publicly affirmed that its 2017 production goal was to manufacture
5,000 Model 3s per week. Specifically, they stated, in a Form 8-K
filed that day, that "preparations at our production facilities are
on track to support the ramp of Model 3 production to 5,000
vehicles per week at some point in 2017." The Class Period ends on
Nov. 1, 2017, because that is the day Tesla publicly admitted that
it would not, in fact, be able to produce 5,000 vehicles per week
by the end of 2017.
Plaintiff Wochos filed the putative class action in the district
court on Oct. 10, 2017. Friedman, a member of the putative class,
thereafter moved to be appointed "lead plaintiff" in accordance
with the PSLRA, and the district court granted that unopposed
motion on Feb. 2, 2018. Thereafter, a First Amended Complaint was
filed adding Friedman and Uppili Srinivasan as additional named
Plaintiffs.
On the Defendants' motion, the district court dismissed that
complaint with leave to amend, and Plaintiffs Friedman and
Srinivasan filed the operative SAC in September 2018. The SAC
alleges that the Defendants' challenged statements concerning
Tesla's production of the Model 3 were false and misleading in
violation of Section 10(b) of the Securities Exchange Act of 1934,
and Rule 10b-5. The complaint also asserted an additional claim
against the individual Defendants, Musk and Ahuja, alleging that
they were "controlling persons" who were liable under Section 20 of
the Securities Exchange Act, for Tesla's alleged violation of
Section 10(b) and Rule 10b-5.
The Defendants again moved to dismiss for failure to state a claim,
and this time the district court dismissed the action with
prejudice and without leave to amend. The district court concluded
that, as to the challenged statements made by Tesla, the Plaintiffs
had failed to plead any material misrepresentation that was not
within the PSLRA's safe harbor for "forward-looking" statements
"accompanied by meaningful cautionary statements." It expressly
declined to reach the additional issues of scienter or loss
causation that had also been raised in the motion to dismiss.
Plaintiffs Friedman and Srinivasan timely appealed.
In a typical Section 10(b) private action a plaintiff must prove
(1) a material misrepresentation or omission by the defendant; (2)
scienter; (3) a connection between the misrepresentation or
omission and the purchase or sale of a security; (4) reliance upon
the misrepresentation or omission; (5) economic loss; and (6) loss
causation." On appeal, the parties contest whether the Plaintiffs
adequately pleaded falsity, scienter, and loss causation.
In addressing the adequacy of the operative SAC, the Ninth Circuit
finds the issue of falsity to be dispositive, and it therefore does
not reach the issues of scienter or loss causation with respect to
that complaint. In reviewing the question of falsity, it begins by
reviewing the general substantive standards that govern the
pleading of falsity in Rule 10b-5 claims, and it then applies those
standards to the specific statements challenged by the Plaintiffs
in their complaint.
The Ninth Circuit opines that the district court correctly
concluded that none of the 15 statements challenged in the SAC was
actionable. And because the Plaintiffs have "not sufficiently
alleged violations of Section 10(b) and Rule 10b-5," they likewise
"cannot establish control person liability" under Section 20(a).
The SAC was therefore properly dismissed.
The only remaining question is whether the district court erred in
dismissing the SAC without leave to amend because of the futility
of further amendment. The Court finds that the Plaintiffs have
failed to show that they can adequately plead loss causation as to
the additional August 2 statement that they did not include in the
SAC. Because the Plaintiffs have not shown any other basis for
concluding that further amendment would not be futile, the district
court correctly dismissed the action with prejudice.
For these reasons, he Ninth Circuit concludes that, to the limited
extent that the specific statements challenged in the Plaintiffs'
operative Second Amended Complaint are not protected by the "safe
harbor" for forward-looking statements in the Private Securities
Litigation Reform Act ("PSLRA"), the Plaintiffs have failed
adequately to plead falsity. It also holds that the Plaintiffs'
proposal to amend the complaint further, to challenge an additional
statement, fails for lack of the requisite loss causation. It
therefore affirmed the district court's dismissal of the action
with prejudice.
A full-text copy of the Court's Jan. 26, 2021 Opinion is available
at https://tinyurl.com/y26szk3n from Leagle.com.
Jacob A. Goldberg (argued) -- jgoldberg@rosenlegal.com -- and Gonen
Haklay -- ghaklay@rosenlegal.com -- The Rosen Law Firm P.A., in
Jenkintown, Pennsylvania; Laurence M. Rosen, The Rosen Law Firm
P.A., in Los Angeles, California; for Plaintiffs-Appellants.
Dean S. Kristy (argued) -- dkristy@fenwick.com -- and Jennifer
Bretan -- jbretan@fenwick.com -- Fenwick & West LLP, in San
Francisco, California; Alison Jordan -- ajordan@fenwick.com --
Fenwick & West LLP, in Mountain View, California; for
Defendants-Appellees.
THAICHELLA LLC: Barrera Files FLSA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Thaichella LLC. The
case is styled as Jorge Luis Barrera, Facundo Castillo Huertos, on
behalf of others similarly situated v. Thaichella LLC (doing
business as Thai Chella), Xiangyuan Liang, Nutcha Kethirun, Case
No. 1:21-cv-00696 (S.D.N.Y., Jan. 26, 2021).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act for Denial of Overtime Compensation.
Thai Chella -- http://www.thaichella.com/-- is a cornerstone in
the New York community and has been recognized for its outstanding
Thai cuisine, excellent service and friendly staff. [BN]
The Plaintiffs appear pro se.
TRANSUNION LLC: Carlton Fields Attorney Discusses Court Ruling
--------------------------------------------------------------
Aaron Weiss, Esq. -- aweiss@carltonfields.com -- of Carlton Fields,
in an article for JDSupra, reports that on December 16, 2020, the
Supreme Court granted certiorari in TransUnion LLC v. Ramirez to
review the Ninth Circuit's decision in Ramirez v. TransUnion LLC.
Specifically, the Supreme Court granted certiorari for the
following question:
Whether either Article III or Rule 23 permits a damages class
action where the vast majority of the class suffered no actual
injury, let alone an injury anything like what the class
representative suffered.
The Supreme Court's certiorari grant is a significant moment in
class action jurisprudence. The question of Article III standing
for absent class members is a knot that courts have been trying to
sort out over the last several years.
On one end, the Second Circuit has held that "no class may be
certified that contains members lacking Article III standing."
Accordingly, district courts in the Second Circuit routinely
examine Article III standing of absent class members as part of the
class certification analysis. See, e.g., Kempner v. Town of
Greenwich, 249 F.R.D. 15, 17 (D. Conn. 2008) (Hall, J.) ("Before
addressing the class certification rule, the court finds that the
proposed class cannot be certified because it contains members who
do not have standing under Article III of the Constitution.");
Tomassini v. FCA US LLC, 326 F.R.D. 375, 386 (N.D.N.Y. 2018)
(D'Agostino, J.) ("Where a plaintiff's class definition includes a
significant number of individuals who do not have standing, a court
must deny the motion for class certification."); Calvo v. City of
N.Y., No. 1:14-cv-07246, 2018 WL 1633565, at *2 (S.D.N.Y. Apr. 2,
2018) (Caproni, J.) ("Ultimately, the Article III standing inquiry
must be examined through the prism of the class definition; in this
Circuit, a class cannot be certified if any person captured within
the class definition lacks Article III standing.").
District courts in the Second Circuit have even denied class action
settlements where the settlement class contained individuals who
lacked Article III standing. See, e.g., Lackawanna Chiropractic
P.C. v. Tivity Health Support, LLC, No. 1:18-cv-00649, 2020 WL
4692464, at *3 (W.D.N.Y. July 7, 2020) (McCarthy, M.J.) (rejecting
the plaintiff's argument that "the presence of a de minimis number
of uninjured class members is permissible at class certification"
and finding that "[a]pproval of the proposed settlement would
exceed the court's jurisdiction, by authorizing payments to those
who have not been injured").
Likewise, in In re Asacol Antitrust Litigation, the First Circuit
reversed an order granting class certification, holding that "this
is a case in which any class member may be uninjured, and there are
apparently thousands who in fact suffered no injury. The need to
identify those individuals will predominate." The First Circuit
went on to discuss the difficulties with identifying a manageable
claim process that allows the defendant to preserve its Seventh
Amendment right to a jury trial on contested issues, as opposed to
a claim administrator's review.
And in In re Rail Freight Fuel Surcharge Antitrust Litigation, the
D.C. Circuit vacated certification of a class because the
plaintiffs had failed to "show that they can prove, through common
evidence, that all class members were in fact injured by the
alleged conspiracy."
Some other circuits have held that absent class members are not
required to have Article III standing. See, e.g., Neale v. Volvo
Cars of N. Am., LLC, 794 F.3d 353, 367 (3d Cir. 2015) (concluding
that "requiring Article III standing of absent class members is
inconsistent with the nature of an action under Rule 23"); DG ex
rel. Stricklin v. Devaughn, 594 F.3d 1188, 1198 (10th Cir. 2010)
(holding that "Rule 23's certification requirements neither require
all class members to suffer harm or threat of immediate harm nor
Named Plaintiffs to prove class members have suffered such harm");
Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 676 (7th Cir. 2009)
("[A] class will often include persons who have not been injured by
the defendant's conduct. … Such a possibility or indeed
inevitability does not preclude class certification.").
Nonetheless, even courts in those circuits that do not require that
absent class members have standing often still consider the issue
of individualized injury when deciding a motion for class
certification, particularly on the issue of predominance. See
Neale, 794 F.3d at 368–69.
As for where the law stands in the Eleventh Circuit, within the
last five years, some district courts have stated that "only [the
named plaintiff] needs to establish standing." Gross v. Advanced
Disposal Servs., Inc., No. 8:17-cv-01920, 2018 WL 8415876, *4 (M.D.
Fla. Dec. 10, 2018) (Honeywell, J.); Etzel v. Hooters of Am., LLC,
223 F. Supp. 3d 1306, 1313–14 (N.D. Ga. 2016) (May, J.)
(concluding that the plaintiff does not have to show that each
member of the putative class would have an injury in fact); Mohamed
v. Am. Motor Co., 320 F.R.D. 301, 310 n.3 (S.D. Fla. 2017) (Cooke,
J.) (rejecting the defendant's "contention that absent class
members must have Article III standing").
However, since the Gross, Etzel, and Mohamed decisions were issued,
the Eleventh Circuit weighed in on this important issue and held
that "whether absent class members can establish standing may be
exceedingly relevant to the class certification analysis required
by Federal Rule of Civil Procedure 23."
Specifically, in the published Cordoba decision,¹ the Eleventh
Circuit held that Article III standing must be determined as to
each individual class member before any relief can be awarded. In
reaching that conclusion, the Eleventh Circuit observed that
"unnamed class members' standing poses a powerful problem under
Rule 23(b)(3)'s predominance factor" and, after surveying the case
law, added that "[t]his problem will necessarily arise here because
at some point before it can award any relief, the district court
will have to determine whether each member of the class has
standing." See also id. at 1274 ("The essential point, however, is
that at some time in the course of the litigation the district
court will have to determine whether each of the absent class
members has standing before they could be granted any relief. That
is an individualized issue.").
The import of Cordoba is that, in the Eleventh Circuit, a district
court must, at some point, evaluate each class member's standing on
an individualized basis. This aspect of Cordoba has since been
applied by several Florida district courts to deny class
certification. See, e.g., New Concept Dental v. Dental Res. Sys.,
Inc., No. 0:17-cv-61411, 2020 WL 3303064, at *10 (S.D. Fla. Mar. 3,
2020) (Marra, J.) (citing Cordoba, "recogniz[ing] potential
standing impediments, as to absent class members," and finding that
the "Plaintiff is unable to show what proportion of the putative
class members suffered an injury 'fairly traceable' to [the
Defendant's] conduct . . . and hence is unable to show that the
issue of standing will involve common questions of fact as opposed
to individualized determinations"); Ohio State Troopers Ass'n, Inc.
v. Point Blank Enters., Inc., No. 0:18-cv-63130, 2020 WL 5667766,
at *8–9 (S.D. Fla. Aug. 24, 2020) (Ruiz, J.) (analyzing standing
under Cordoba and noting that "a class should not be certified if
it is apparent that it contains agreat many persons who have
suffered no injury at the hands of the defendant").
One way or the other, the Supreme Court's upcoming decision in
TransUnion should shed light as to whether the Second Circuit's
categorical approach will control or if the rule will call for some
less rigid standard, at least at the class certification stage.
¹In Gross, the court relied on the Eleventh Circuit's unpublished
opinion in Venerus v. Avis Budget Car Rental, LLC, in which the
court stated that "[t]o the extent the district court relied on
Article III standing to decline to certify the class, this was
error." This aspect of the unpublished Venerus decision appears at
odds with the published holding issued the next year in Cordoba
stating that the standing of unnamed class members should be part
of the Rule 23 predominance analysis. [GN]
TRICIDA INC: Robbins Geller Reminds Investors of March 8 Deadline
-----------------------------------------------------------------
Robbins Geller Rudman & Dowd & Dowd LLP on Jan. 27 disclosed that a
class action lawsuit has been filed in the Northern District of
California on behalf of purchasers of Tricida, Inc. (NASDAQ:TCDA)
securities between September 4, 2019 and October 28, 2020,
inclusive (the "Class Period"). The case is captioned Pardi v.
Tricida, Inc., No. 21-cv-00076, and is assigned to Judge Lucy H.
Koh. The Tricida class action lawsuit charges Tricida and certain
of its executives with violations of the Securities Exchange Act of
1934.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased Tricida securities during the Class Period
to seek appointment as lead plaintiff in the Tricida class action
lawsuit. A lead plaintiff is generally the movant with the greatest
financial interest in the relief sought by the putative class who
is also typical and adequate of the putative class. A lead
plaintiff acts on behalf of all other class members in directing
the Tricida class action lawsuit. The lead plaintiff can select a
law firm of its choice to litigate the Tricida class action
lawsuit. An investor's ability to share in any potential future
recovery of the Tricida class action lawsuit is not dependent upon
serving as lead plaintiff. If you wish to serve as lead plaintiff
of the Tricida class action lawsuit or have questions concerning
your rights regarding the Tricida class action lawsuit, please
provide your information here or contact counsel, Jennifer Caringal
of Robbins Geller, at 800/449-4900 or 619/231-1058 or via e-mail at
jcaringal@rgrdlaw.com. Lead plaintiff motions for the Tricida class
action lawsuit must be filed with the court no later than March 8,
2021.
Tricida is a pharmaceutical company that focuses on the development
and commercialization of its drug candidate, veverimer (TRC101), a
non-absorbed, orally-administered polymer designed as a potential
treatment for metabolic acidosis in patients with chronic kidney
disease ("CKD"). Tricida has completed a Phase 3, double-blind,
placebo-controlled trial of veverimer in patients with CKD and
metabolic acidosis. On September 4, 2019, Tricida announced that it
had submitted a New Drug Application ("NDA") to the U.S. Food and
Drug Administration ("FDA") under the Accelerated Approval Program
for approval of veverimer for the treatment of metabolic acidosis
in patients with CKD.
The Tricida class action lawsuit alleges that, throughout the Class
Period, defendants made false and/or misleading statements and/or
failed to disclose: (i) Tricida's NDA for veverimer was materially
deficient; (ii) accordingly, it was foreseeably likely that the FDA
would not accept the NDA for veverimer; and (iii) as a result,
Tricida's public statements were materially false and misleading at
all relevant times.
On July 15, 2020, Tricida issued a press release announcing that,
on July 14, 2020, Tricida received a notification from the FDA,
stating that as part of the FDA's ongoing review of Tricida's NDA
for veverimer, "the FDA has identified deficiencies that preclude
discussion of labeling and postmarketing requirements/commitments
at this time." Tricida stated that "[t]he notification does not
specify the deficiencies identified by the FDA." On this news,
Tricida's stock price fell more than 40%.
Then, on October 29, 2020, Tricida announced an update on its
End-of-Review Type A meeting with the FDA regarding the veverimer
NDA, advising investors that Tricida "now believes the FDA will
also require evidence of veverimer's effect on CKD progression from
a near-term interim analysis of the VALOR-CKD trial for approval
under the Accelerated Approval Program and that the FDA is unlikely
to rely solely on serum bicarbonate data for determination of
efficacy." Concurrently, Tricida disclosed that it "is
significantly reducing its headcount from 152 to 59 people and will
discuss its commitments with vendors and contract service providers
to potentially provide additional financial flexibility." On this
news, Tricida's stock price fell an additional 47% - further
damaging investors.
Robbins Geller Rudman & Dowd LLP is one of the world's leading law
firms representing investors in securities class action litigation.
With 200 lawyers in 9 offices, Robbins Geller has obtained many of
the largest securities class action recoveries in history. For
seven consecutive years, ISS Securities Class Action Services has
ranked the Firm in its annual SCAS Top 50 Report as one of the top
law firms in the world in both amount recovered for shareholders
and total number of class action settlements. Robbins Geller
attorneys have helped shape the securities laws and have recovered
tens of billions of dollars on behalf of aggrieved victims. Beyond
securing financial recoveries for defrauded investors, Robbins
Geller also specializes in implementing corporate governance
reforms, helping to improve the financial markets for investors
worldwide. Robbins Geller attorneys are consistently recognized by
courts, professional organizations, and the media as leading
lawyers in the industry. Please visit http://www.rgrdlaw.comfor
more information.
Contacts:
Robbins Geller Rudman & Dowd LLP
Jennifer Caringal, 800-449-4900
jcaringal@rgrdlaw.com [GN]
TRITERRAS INC: Hagens Berman Reminds of February 19 Deadline
------------------------------------------------------------
Hagens Berman urges Triterras, Inc. (NASDAQ:TRIT) investors with
significant losses to submit your losses now. A securities fraud
class action has been filed and certain investors may have valuable
claims.
Class Period: August 20, 2020 - December 16, 2020
Lead Plaintiff Deadline: Feb. 19, 2021
Visit:www.hbsslaw.com/investor-fraud/TRIT
Contact An Attorney Now:TRIT@hbsslaw.com
844-916-0895
Triterras, Inc. (TRIT) Securities Class Action:
The complaint centers on the accuracy of Triterras' and senior
managements' statements concerning the company's dependence on- and
the financial condition of- Rhodium Resources, a business
controlled by Triterras CEO Srinivas Koneru.
More specifically, according to the complaint, Defendants made
misleading statements about or concealed (1) the extent to which
Triterras revenue growth depended on referrals from Rhodium, (2)
Rhodium's dire financial condition, and (3) that as a result
Rhodium was likely to refer fewer users to the company.
Investors began to learn the truth, according to the complaint, on
Dec. 17, 2020 when Triterras announced Rhodium was seeking a
moratorium to shield itself from creditors while planning to
restructure debts and continue business as a going concern. This
news sent the price of Triterras shares crashing lower.
Most recently, on Jan. 14, 2021, Phase 2 Partners published a
report entitled "Is Triterras (TRIT) the Wirecard of Blockchain?"
Among other things, Phase 2 highlighted its concerns over (1)
undisclosed related party transactions, and (2) certain accounting
matters Phase 2 considers to be "red flags." In response, the price
of Triterras shares crashed lower again.
"We're focused on investors' losses and proving Triterras
intentionally misled them about the financial condition of its
admitted material related party, Rhodium, when and after the
company went public," said Reed Kathrein, the Hagens Berman partner
leading the investigation.
If you are a Triterras investor and have significant losses, or
have knowledge that may assist the firm's investigation, click here
to discuss your legal rights with Hagens Berman.
Whistleblowers: Persons with non-public information regarding
Triterras should consider their options to help in the
investigation or take advantage of the SEC Whistleblower program.
Under the new program, whistleblowers who provide original
information may receive rewards totaling up to 30 percent of any
successful recovery made by the SEC. For more information, call
Reed Kathrein at 844-916-0895 or email TRIT@hbsslaw.com.
About Hagens Berman
Hagens Berman is a national law firm with nine offices in eight
cities around the country and eighty attorneys. The firm represents
investors, whistleblowers, workers and consumers in complex
litigation. More about the firm and its successes is located at
hbsslaw.com. [GN]
UBER TECHNOLOGIES: Court Certifies Class of Drivers in James Suit
-----------------------------------------------------------------
In the case, CHRISTOPHER JAMES, et al., Plaintiffs v. UBER
TECHNOLOGIES INC., Defendant, Case No. 19-cv-06462-EMC (N.D. Cal.),
Judge Edward M. Chen of the U.S. District Court for the Northern
District of California granted in part and denied in part the
Plaintiffs' motion for class certification pursuant to Rule 23 of
the Federal Rules of Civil Procedure.
Plaintiffs James and Spencer Verhines are current or former Uber
drivers who contend that they and a putative class of approximately
4,828 other Uber drivers are Uber's employees and therefore
eligible for various protections under the California Labor Code.
The Plaintiffs raise various wage-and-hour claims under California
law and seek various forms of relief, including under California's
Unfair Competition Law ("UCL") and the federal Declaratory Judgment
Act ("DJA").
On May 19, 2020, the Plaintiffs filed the pending motion to certify
Class, and two days later Uber filed a motion to dismiss the
Plaintiffs' consolidated class action complaint.
On June 30, 2020, the Court dismissed, with leave to amend, the
consolidated amended complaint's claims that Uber failed to provide
paid sick leave as required by section 246 of the California Labor
Code, and any UCL claims premised on violations of section 246. It
also dismissed Thomas Colopy as a named Plaintiff in the case
without prejudice to his claims.
On July 14, 2020, Messrs. James and Verhines filed the operative
amended consolidated class action complaint ("Amended Complaint").
The Plaintiffs are residents of California who drive for Uber. They
bring the case as a putative class action on "behalf of all other
individuals who have worked as Uber drivers in California who have
not released all of their claims against Uber."
The Plaintiffs assert claims related to their alleged
misclassification as independent contractors, including (1) failure
to reimburse business expenses, (2) failure to pay minimum wage,
(3) failure to pay overtime, (4) failure to provide properly
itemized pay statements, (5) failure to provide paid sick leave,
and (6) unlawful business practices. They seek damages dating back
to Feb. 28, 2019, as well as declaratory and injunctive relief,
which would require Uber to reclassify its drivers as employees.
Judge Chen applies the Rule 23(a) criteria (numerosity,
commonality, typicality, and adequacy) to the Plaintiffs' claim
that they are/were Uber's employees, rather than independent
contractors, and for each of their five substantive law claims:
failure to (1) reimburse business expenses, (2) pay minimum wage,
(3) pay overtime, (4) provide properly itemized pay statements, and
(5) provide paid sick leave.
Then Judge Chen considers whether the Plaintiffs have met their
burden under Rule 23(b)(3), which requires them to establish that
the employment classification question, and all of their
substantive claims, can be resolved with reference to predominately
common proof (predominance) and that prosecuting their claims in a
class action is superior to other available methods (superiority).
Judge Chen notes that the California Supreme Court adopted a new
test for distinguishing between employees and independent
contractors in Dynamex Operations W. v. Superior Court, 416 P.3d 1
(Cal. 2018), reh'g denied (June 20, 2018). Under the so-called
"ABC" test, workers are presumptively considered to be employees
unless the "hiring entity" establishes that the worker in question
satisfies three conditions: (a) that the worker is free from the
control and direction of the hirer in connection with the
performance of the work, both under the contract for the
performance of the work and in fact; and (b) that the worker
performs work that is outside the usual course of the hiring
entity's business; and (c) that the worker is customarily engaged
in an independently established trade, occupation, or business of
the same nature as that involved in the work performed.
The Judge finds that the Plaintiffs have satisfied the Rule 23(a)
criteria for all of their claims. However, he finds that they
failed to meet their burden under the Rule 23(b)(3) as it pertains
to prong C of the ABC test and their minimum wage, overtime, and
paid sick leave claims.
First, Uber correctly argues that individualized evidence is
required to determine, under prong C, whether "the worker is
customarily engaged in an independently established trade,
occupation, or business of the same nature as that involved in the
work performed" for Uber. The variations that made it impossible
to certify a class that included Uber drivers who owned or worked
for third-party transportation companies in O'Connor II and III
also pertain to prong C. Indeed, as Uber underscores in its
opposition, some of the putative class members in the instant case
also "use Uber's competitors' apps at the same time that they use
Uber and build their own clientele base."
In addition, some drivers incorporate their own businesses, obtain
commercial driver's licenses, advertise under their own name,
target their driving periods during surge pricing on the Uber
application, and identify as self-employed on their tax returns. A
finder of fact could plausibly conclude that some of these putative
class members are engaged in an independently established business
under prong C of the ABC test, while others are not. This requires
an intensive fact-based inquiry on a case by case basis. There is
no way to resolve this question for all of these drivers, one way
or the other, "in one stroke."
Second, the Judge cannot conclude that the predominance requirement
is satisfied for the Plaintiffs' minimum wage and overtime pay
because they refuse to limit those claims to the time that they
spent actually driving for Uber. Presumably, some of the drivers
in Plaintiffs' putative class "engaged in personal
activities"--including paid work for third parties--while waiting
to receive ride requests on the Uber app; others may not or may do
so only occasionally. Determining Uber's liability for wages
cannot be determined on a class-wide basis and individualized
determinations would be complex and manifold.
Third, the Judge Court cannot determine if Uber denied the
Plaintiffs' paid sick leave on a class-wide basis because the
insist that all of the time they spent on the application
(including waiting time) should count towards determining their
sick leave. That determination is extremely difficult to make as
to each driver for reasons stated. Accordingly, given the
Plaintiffs' insistence, the predominance requirement is not
satisfied for the Plaintiffs' paid sick leave claims either.
For the foregoing reasons, Judge Chen granted in part the
Plaintiffs' Rule 23(b)(3) motion to certify a class of Uber drivers
who drove for Uber in the State of California between Feb. 28, 2019
and Dec. 16, 2020, and who opted out of Uber's arbitration
agreement.
The trier of fact will first consider on a class-wide basis whether
this class of drivers satisfies prongs A and B of the ABC test. If
these drivers do not satisfy either prong, then the trier of fact
will proceed to consider, also on a class-wide basis, this class'
expense reimbursement and itemized wage statement claims.
The Judge also denied in part the Plaintiff's Rule 23(b)(3) motion
as it pertains to prong C of the ABC test and the Plaintiffs'
minimum wage, overtime, and paid sick leave claims.
The Judge ordered the parties to meet and confer regarding the
contents and logistics of class notice and other relevant
procedural details in advance of the next case management
conference, to be held at 10:30 a.m. on Feb. 18, 2021. At that
conference, the parties will be prepared to discuss any proposal
regarding further class certification. A joint case management
statement is due by Feb. 11, 2021.
The Order disposes of Docket No. 56.
A full-text copy of the Court's Jan. 26, 2021 Order is available at
https://tinyurl.com/y4cy2ots from Leagle.com.
UBER TECHNOLOGIES: Drivers' Labor Class Action Can Proceed
----------------------------------------------------------
Tyler Sonnemaker, writing for Business Insider, reports that a
federal court handed Uber drivers in California a small victory on
Jan. 26, allowing them to proceed with some parts of their class
action lawsuit over employment benefits they claim the company owes
them.
The court ruled that a group of approximately 4,800 drivers can
collectively sue Uber for allegedly denying them expense
reimbursements and itemized pay statements -- benefits guaranteed
to all employees under state law -- by misclassifying them as
independent contractors prior to Proposition 22's passage.
However, the court said drivers will have to bring claims
individually over whether Uber failed to pay them the minimum wage,
overtime, and paid sick leave -- which employees are also
guaranteed.
Uber did not respond to a request for comment on this story.
Several drivers brought the lawsuit against Uber last year after
the company refused to reclassify them as employees following
California's passage of AB-5, which sought to extend the state's
existing labor protections to a wider group of workers.
California eventually sued Uber and Lyft for not complying with the
law, state regulators determined it did apply to both companies,
and a state appeals court agreed.
But as legal challenges from Uber and Lyft were pending, voters
passed Proposition 22, a company-backed ballot initiative that
exempted rideshare and food delivery app companies from complying
with AB-5.
That new law, which specifically designated drivers and delivery
workers for those apps as independent contractors, went into effect
in December. But drivers alleged that, in the time after AB-5 went
into effect but before Prop 22 did, Uber should have been treating
them as employees.
As a result, the drivers claimed, Uber violated California's labor
laws by failing to: reimburse business expenses, pay the minimum
wage, pay overtime, provide itemized pay statements, and provide
paid sick leave.
The lawsuit is among several Uber is facing over worker
classification, which could put the company on the hook for
substantial back payments to drivers. California's supreme court
also recently ruled that Dynamex, a court ruling that became the
legal basis for AB-5, applies retroactively, which could make gig
companies liable for back payments dating back several years before
AB-5's passage. [GN]
UNITED STATES: Court Denies Miller's Bid for Writ of Habeas Corpus
------------------------------------------------------------------
Judge David L. Bunning of the U.S. District Court for the Eastern
District of Kentucky, Northern Division, Ashland, dismissed the
case, COMARARIE MILLER, Petitioner v. J. ALLEN BEARD, Warden,
Respondent, Civil Action No. 21-11-DLB (E.D. Ky.).
Federal Bureau of Prisons inmate Miller has filed a pro se Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2241
asserting claims related to the COVID-19 pandemic. The matter is
before the Court to conduct the initial screening of the Petition
pursuant to 28 U.S.C. Section 2243.
Mr. Miller identifies three respondents in his Petition, but the
proper respondent in a habeas proceeding challenging present
physical detention is the warden of the facility where the
petitioner is confined. Judge Bunning directs that Warden Beard be
identified as the sole respondent in the proceeding.
In addition, Miller purports to bring his habeas corpus petition on
behalf of himself and "all others similarly situated who are
detained at F.C.I. Ashland," and names five other persons as
petitioners in the caption of his petition. But the Judge finds
that none of these other persons signed the petition as required by
Rule 11(a) of the Federal Rules of Civil Procedure. He notes that
the U.S. Court of Appeals for the Sixth Circuit has consistently
interpreted 28 U.S.C. Section 1654 as prohibiting pro se litigators
from trying to assert the rights of others.
Mr. Miller's Petition also suggests a desire for the matter to
proceed as a class action. However, he has not attempted to define
the scope of the class or the claims encompassed within it; alleged
or argued that his claims satisfy the requirements for class
certification set forth in Federal Rule of Civil Procedure
23(a)(1)-(4); or identified the type of class action appropriate
under Rule 23(b)(1)-(3). A pleading that fails to satisfy these
criteria does not warrant class certification. The Judge therefore
directs that Miller be identified as the sole petitioner in the
proceeding.
The Judge also finds that Miller's Petition is identical--indeed,
nearly word-for-word--to the petition filed one month ago by Jerome
Woods, another inmate confined at the same prison, citing Woods v.
Beard, No. 0: 20-CV-151-DLB (E.D. Ky. 2020). Like Woods, Miller
complains that prison officials are not doing enough to combat the
spread of COVID-19 at the prison, and have not adequately utilized
the authority conferred upon them by the Coronavirus Aid, Relief,
and Economic Security Act ("CARES Act") to transfer inmates to home
confinement or to grant compassionate release. Miller asks the
Court to order Bureau of Prisons officials to release inmates at
the prison through these avenues. The Plaintiff also asks to be
excused from the requirement that he exhaust administrative
remedies prior to filing suit because of the dangerous conditions
at FCI Ashland.
The Judge denies Miller's Petition for the same reasons it denied
Woods' identical petition. First, while the CARES Act authorizes
the BOP to consider placing an inmate in home confinement pursuant
to 18 U.S.C. Section 3624(c), it does not require it to do so.
Second, it is apparent that Miller has not filed an inmate
grievance regarding his concerns and pursued appeals available
under the BOP's Inmate Grievance Program.
For each of these reasons, Judge Bunning denied Miller's Petition.
Accordingly, he directed the Clerk to modify the docket to reflect
that in the proceeding Warden J. Allen Beard is the sole respondent
and inmate Comararie Miller is the sole petitioner. He denied
Miller's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
Section 2241.
The action is dismissed and struck from the Court's docket.
Judgment will be entered contemporaneously with the Memorandum
Opinion and Order.
A full-text copy of the Court's Jan. 26, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/yxgvr8tl from
Leagle.com.
WEST KABUL: Naula Seeks Minimum Wages, OT Premiums Under FLSA, NYLL
-------------------------------------------------------------------
MANUEL NAULA, Individually and on Behalf of All Others Similarly
Situated v. WEST KABUL KABAB RESTAURANT & CATERING INC. d/b/a KABUL
KABAB HOUSE RESTAURANT, ABDUL MOSAVER, MANSOOREH DORUDI, and SAIED
RAHBAR, Jointly and Severally, Case No. 1:21-cv-00458 (E.D.N.Y.,
Jan. 27, 2021) seeks to recover unpaid minimum wages and overtime
premium pay pursuant to both the Fair Labor Standards Act and the
New York Labor Law.
The Plaintiff also brings claims for unpaid spread-of-hours
premiums and for failure to provide proper wage notices and wage
statements pursuant to NYLL section 190 et seq. and the supporting
regulations.
The Plaintiff worked for the Defendants as a dishwasher, porter,
food prep, and line cook, at their restaurant located in Flushing,
Queens, New York. For his work, during the relevant time period,
the Plaintiff was not paid minimum wages for all hours worked and
was not paid overtime premiums for hours worked over 40 in a given
workweek, the complaint says.
The Plaintiff brings his FLSA claims on behalf of himself and all
other similarly situated employees of the Defendants and his NYLL
claims on behalf of himself and a Federal Rule of Civil Procedure
23 class of all non-management employees working for the Defendants
during the relevant NYLL limitations period.[BN]
The Plaintiff is represented by:
Brent E. Pelton, Esq.
Taylor B. Graham, Esq.
PELTON GRAHAM LLC
www.peltongraham.com
111 Broadway, Suite 1503
New York, NY 10006
Telephone: (212) 385-9700
XPO LOGISTICS: Menoch Seeks OT Pay for Sales Reps Under FLSA & IMWL
-------------------------------------------------------------------
MICHAEL MENOCH, Individually and on Behalf of All Others Similarly
Situated v. XPO LOGISTICS, LLC, Case No. 1:21-cv-00443 (N.D. Ill.,
Jan. 26, 2021) is a collective action brought by the Plaintiff
against the Defendant for violations of the overtime provisions of
the Fair Labor Standards Act and overtime provisions of the
Illinois Minimum Wage Law.
The Plaintiff seeks a declaratory judgment, monetary damages,
liquidated damages, prejudgment interest, and a reasonable
attorney's fee and costs as a result of the Defendant's failure to
pay proper overtime compensation under the FLSA and the IMWL.
The Defendant provides freight management services throughout the
United States, including in Chicago where Plaintiff worked. The
Defendant employed Plaintiff as an hourly-paid Carrier Sales
Representative (CSR) from December of 2013 to August of 2020 at its
location at 303 East Wacker Drive, Chicago, Illinois. The Defendant
also employed other hourly-paid CSRs within the three years
preceding the filing of this lawsuit.
The Plaintiff contends that the Defendant deducted an hour lunch
break from the Plaintiff's and other CSRs' recorded time each day
that they worked, regardless of whether he and other CSRs took a
lunch break. He adds that he worked five days per week and
estimates that he actually took his hour lunch break only one to
two times each week, and if he and other CSRs worked over 40 hours
in a week, the Defendant paid them for their hours over 40 only if
they met a quota set by the Defendant, which entailed completing a
certain amount of various tasks, such as booking loads and making
sales calls.
XPO Logistics provides transportation and logistic solutions. The
Company offers freight brokerage, global forwarding, supply chain,
and transportation management.[BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
10800 Financial Centre Parkway, Suite 510
Little Rock, AR 72211
Telephone: (501) 221-0088
Facsimile: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
[*] Blank Rome Discusses Data Breach Class Action Defense
---------------------------------------------------------
David Oberly, Esq., of Blank Rome LLP, in an article for JDSupra,
reports that on Jan. 27, data breaches continue to proliferate at a
rapid pace, often spurring consumer class action litigation in
their wake. Oftentimes, a successful data breach suit can empty a
corporate defendant's coffers. For example, Equifax was recently
forced to shell out $575 million to settle a major data breach
class action suit stemming from its 2017 mega-breach that impacted
over 100 million individuals. Consequently, companies that handle
consumer personal data must be prepared to forcefully defend such
high-stakes, bet-the-company litigation.
Fortunately, Article III standing serves as a viable defense to
obtain dispositive dismissals from a wide range of data breach
class actions in federal court. While a current circuit split
exists over the threshold for establishing standing in such cases,
the standard articulated by the Sixth Circuit Court of Appeals
provides a significant opportunity for defendants to completely
dispose of litigation at the pleading stage based on an absence of
constitutional standing.
Originally published in the January/February 2021 edition of CBA
Report.
Please see full article below for more information.
https://www.jdsupra.com/legalnews/data-breach-defense-5525406/
[GN]
[*] Class Action Filed Over Contaminated Water Wells
----------------------------------------------------
Everything Lubbock reports that a New York law firm, Napoli
Shkolnik PLLC, filed a class-action lawsuit on behalf of private
water well owners in Lubbock for contamination of the groundwater.
Napoli Shkolnik said the class action complaint was filed against
certain manufacturers. A statement from the law firm said storage
and disposal of certain materials at the former Reese Air Force
Base exposed residents to toxic material.
Residents suffered cancer and other ailments, according to the
statement.
"They knew for decades that these chemicals were bio-cumulative,
persist in the environment, and would accumulate in people's
blood," said Patrick Lanciotti, an Napoli Shkolnik associate.
The statement also said, "Property values in the area have dropped
as a result of the contamination."
The statement listed aqueous firefighting foams ("AFFF") containing
perfluorooctanesulfonic acid ("PFOS") and perfluorooctanoic acid
("PFOA"). The lawsuit was filed against manufacturers of
fluorosurfactants containing PFOS and PFOA.
"The cost should be paid for by the chemical companies because
those are the ones who truly did the wrong we're talking about,"
said Lanciotti.
Reese AFB closed in the 1990's and the property is now known as
Reese Technology Center. The US Air Force acknowledged
contamination at Reese and other bases nationwide from PFAS, or
Polyfluoroalkyl compounds. PFAS was used to extinguish aircraft
fires, and it was also used to train firefighters to respond to
aircraft fires. [GN]
[*] Securities Class Action Filings Remain High Despite Pandemic
----------------------------------------------------------------
Jay B. Kasner, Esq., Scott D. Musoff, Esq., Susan L. Saltzstein,
Esq., and William J. O'Brien, Esq., of Skadden Arps Slate Meagher &
Flom LLP, in an article for Lexology, reports that despite
unprecedented disruptions to the court system from the COVID-19
pandemic, plaintiffs continued to bring securities class actions at
elevated levels in 2020 -- a sign that filings will remain high in
the year ahead. Based on data from Cornerstone Research through
September 30, 2020, plaintiffs were on pace to file approximately
375 federal and state securities class actions through the end of
the year. Although lower than the more than 400 actions filed in
each of the previous three years, this figure is still
substantially higher than the 261 cases brought, on average,
between 2010 and 2019.
The moderate slowdown in filings is likely due to the pandemic,
which led to widespread court closures and fewer mergers in the
first half of 2020. The drop-off in M&A activity, in particular,
led to a corresponding decline in federal merger objection lawsuits
-- a major contributor to overall filings since 2016. At the same
time, the pandemic fueled its own cluster of event-driven cases,
producing an estimated 16 securities-related actions through
September 30, 2020. This represents the continuation of a
development we observed in 2019 in event-driven litigation filings
-- matters where the catalyst is the disclosure or occurrence of a
significant event that negatively impacts stock performance.
The moderate slowdown in filings is likely due to the pandemic,
which led to widespread court closures and fewer mergers in the
first half of 2020.
The New Year May Usher in Even More Claims Against Non-US Issuers
and SPACs
Securities filings against non-U.S. companies have continued to
rise, with 35 such lawsuits initiated in the first half of 2020. If
this pace continues, total filings for 2020 would exceed the prior
record of 56, registered just one year earlier. Thus far,
plaintiffs have focused substantially on Chinese firms that have
delisted from U.S. exchanges (more than 60 since 2013). In the
first half of 2020, 13 of the 35 suits against non-U.S. issuers
fell into this category. In the Chinese issuer cases, a recurring
theme has been the purported failure of these firms to disclose
alleged violations of Chinese government regulations. (See "Hong
Kong's Exchange Improves Its Allure for Chinese Issuers.")
We are also seeing an uptick in cases against special purpose
acquisition companies. These companies, SPACs, are formed for the
purpose of acquiring privately held businesses, typically through
reverse mergers in which the operating entity or target survives
and becomes a publicly traded issuer. According to the research
firm Deal Point Data, there was an explosion of SPAC-related
activity in 2020, with 247 IPOs, compared to 59 offerings in all of
2019. (See "The Year of the SPAC.") The offerings, referred to as
de-SPAC transactions, have sparked a wave of securities actions in
which investors claim to have been misled about facts bearing on
the target's financial condition, prospects or operations.
Bypassing litigation, some plaintiffs firms have also made
behind-the-scenes demands, claiming that shareholders were deceived
by the issuer's regulatory filings and seeking curative disclosures
in exchange for a quick settlement and attorneys' fees. Given the
growing importance of SPACs, we expect to see more of these cases
(and demands) in 2021.
Exclusive Federal Forum Provisions and Case Law Developments Will
Continue To Shape '33 Act Litigation Post-Cyan
State court filings with Securities Act of 1933 ('33 Act) claims
are on pace to decline for the first time since the U.S. Supreme
Court's 2018 decision in Cyan, Inc. v. Beaver County Employees
Retirement Fund. Beyond the pandemic, this decline may be traceable
in part to the Delaware Supreme Court's 2020 decision in Salzberg
v. Sciabacucchi (Blue Apron II), which held that Delaware
corporations may include provisions in their certificates of
incorporation requiring '33 Act claims to be brought in federal
court. This highly anticipated decision will no doubt encourage
more Delaware corporations to adopt exclusive federal forum
provisions (FFPs).
Whether other state courts consistently uphold the validity of FFPs
remains to be seen. Thus far, two California state judges -- in
Wong v. Restoration Robotics and In re Uber Technologies -- have
enforced FFPs, albeit on grounds different from those laid out by
the Delaware Supreme Court in Blue Apron II. (Both courts relied on
principles of California -- rather than Delaware -- law.) If other
jurisdictions follow suit, FFPs could become a potent tool for
eliminating duplicative litigation by steering '33 Act claims to
the federal courts, where procedures exist for consolidation.
Plaintiffs, however, have raised several legal objections -- among
them, that by enforcing FFPs, courts are impermissibly regulating
interstate commerce in violation of the U.S. Constitution's
Commerce Clause. The coming year may offer greater clarity about
the viability of plaintiffs' constitutional and other challenges.
In the meantime, we will monitor additional case law developments
at the state court level. One threshold issue is whether plaintiffs
can survive motions to dismiss. In a notable ruling from December
2020, New York's Appellate Division reversed a trial court order
and dismissed '33 Act claims stemming from the initial public
offering (IPO) of Ruhnn Holding Limited, a recruiter, trainer and
manager of social media influencers for China's e-commerce market.
The plaintiffs alleged that Ruhnn was required to disclose updated
numbers on store closings from the most recent quarter at the time
of the IPO. In dismissing the complaint, the appellate court relied
on the U.S. Court of Appeals for the Second Circuit's decision in
Stadnick v. Vivint Solar to conclude that the plaintiffs were
viewing the store closings too "myopically." This is believed to be
the first time that a New York state court has applied the Second
Circuit's holistic standard for evaluating the accuracy of
registration statements.
The decision represents the first post-Cyan ruling by a New York
appellate court and highlights a key feature of its procedural
rules. Unlike in the federal system, where appeals generally must
wait for a final judgment or order resolving all claims against all
parties, defendants in New York state courts can immediately appeal
the denial of a motion to dismiss. This distinction highlights a
unique risk that plaintiffs face when opting for New York state
court. Because a large number of '33 Act claims are typically filed
in New York, we will be looking to see if Ruhnn has any impact
going forward on plaintiffs' willingness to litigate in the Empire
State.
Shift in Supreme Court's Composition Could Impact the Future Course
of Securities Litigation Jurisprudence
The coming year may also offer clues about whether the U.S. Supreme
Court's evolving composition -- including the recent appointment of
Justice Amy Coney Barrett -- will lead to a corresponding shift in
its securities litigation jurisprudence. (See Insights Special
Edition: US Supreme Court Term.)
Prior to joining the high court, Justice Barrett did not write or
speak about topics related to securities litigation, either as a
member of the U.S. Court of Appeals for the Seventh Circuit or as a
professor at Notre Dame Law School. She did, however, join majority
opinions in several securities and derivative cases, including one
-- In re Allstate Corporation Securities Litigation -- that may
shed light on how the Court could rule in a case before it this
term, Goldman Sachs Group Inc. v. Arkansas Teacher Retirement
System (Arkansas Teachers).
On appeal from the Second Circuit, Arkansas Teachers raises two
questions involving class certification: (1) whether a defendant in
a securities class action may rebut the classwide presumption of
reliance recognized in Basic Inc. v. Levinson by pointing to the
generic nature of the alleged misstatements (and their consequent
failure to negatively impact the issuer's stock price) -- even if
that evidence also bears on the substantive element of materiality;
and (2) whether a defendant bears the burden of persuading the
court on the lack of price impact.
In Allstate, the Seventh Circuit vacated a class certification
order that was based, in part, on the district court's refusal to
consider price impact evidence relating to the alleged
misstatements. Although the Seventh Circuit acknowledged that
Allstate's price impact theory "look[ed] very much like the
prohibited defenses of no materiality," it nonetheless concluded
that this "close similarity" did not allow the "district court to
avoid a price impact defense at the class certification stage." The
Seventh Circuit also held, like the Second Circuit in Arkansas
Teachers, that defendants bear the burden of persuasion in
rebutting Basic.
With Justice Barrett's elevation, these holdings could become
relevant when the Supreme Court considers Arkansas Teachers later
this term. And looking ahead, Justice Barrett's conservative
philosophy may prove influential in several other contexts. To take
one example, in the 2014 case Halliburton Co. v. Erica P. John
Fund, Inc., three justices -- Clarence Thomas, Samuel A. Alito Jr.
and Antonin Scalia -- were poised to eliminate the Basic
presumption of reliance altogether. Would Justice Barrett be
willing to follow in the footsteps of her mentor, Justice Scalia,
and consider overruling Basic if such a case were brought before
the Court again? Although theoretical at this juncture, these are
the kinds of issues that we will be looking out for as the Court
ushers in a new, more conservative era.
Supreme Court's Refusal To Grant Certiorari in Jander May Have
Implications for ERISA Stock Drop Litigation
Courts may also have to deal with the implications of another
Supreme Court decision, Retirement Plans Committee of IBM v.
Jander. The January 2020 case is a putative Employee Retirement
Income Security Act of 1974 (ERISA) class action that raises an
important threshold question: How strict should the pleading
standard be for asserting claims against corporate insiders who
serve as fiduciaries for employee stock ownership plans?
In Jander, the plaintiffs had accused plan administrators, all of
whom were insiders, of violating ERISA by failing to disclose
allegedly negative information about the purportedly impaired value
of IBM's microelectronics business. According to the plaintiffs,
these administrators should have understood not only that this
nonpublic information would eventually be made public (allegedly
because the business was about to be sold), but also that the
resulting harm (i.e., a drop in IBM's stock price) would only grow
the longer the alleged fraud was concealed. As a result, the
plaintiffs complained, any prudent fiduciary would have concluded
that waiting to reveal the adverse information would do more harm
than good.
In reversing the dismissal of the plaintiffs' complaint, the Second
Circuit largely agreed with this framing of the "more harm than
good" standard first enunciated in 2014 by the Supreme Court in
Fifth Third Bancorp v. Dudenhoeffer. Despite granting certiorari in
Jander, the Court declined to issue a decision on the merits and
instead remanded the case to the Second Circuit. On June 22, 2020,
the Second Circuit reinstated its original decision, effectively
leaving intact what some have dubbed the court's "inevitable
disclosure" pleading standard.
On November 9, 2020, the Supreme Court denied IBM's new petition
for certiorari, cementing a circuit split that has continued to
deepen. Indeed, in 2020, in Allen v. Wells Fargo & Co., the U.S.
Court of Appeals for the Eighth Circuit rejected Jander's
"inevitable disclosure" test and, in so holding, joined the Fifth
and Sixth Circuits in ruling that generalized allegations of
nondisclosure, such as those sustained in Jander, are legally
infirm.
Unless and until the Supreme Court resolves the split, plaintiffs
may begin filing ERISA stock drop cases more frequently in the
Second Circuit, where they will claim, citing Jander, that the
pleading standard is more challenging for defendants.
Other Issues To Watch For in 2021
We also will be monitoring how the district courts adapt to other
developments in the case law. This includes two 2020 decisions by
the U.S. Court of Appeals for the Ninth Circuit that offer guidance
on the pleading standards for loss causation. In the first, a
putative securities class action against BofI Holding, Inc., the
court rejected a categorical rule that allegations from a separate
whistleblower lawsuit, standing alone, can never qualify as a
corrective disclosure. Instead, the court determined that such
allegations can be deemed corrective when the complaint pleads
facts from which to plausibly infer that "the market treat[ed] [the
allegations] as sufficiently credible to be acted upon as truth."
One month later, in a second appeal involving BofI, the Ninth
Circuit held that information obtained through a Freedom of
Information Act (FOIA) request can be a corrective disclosure if it
reveals new facts to the market. In so holding, the court reasoned
that because FOIA information is only disclosed by the government
if requested, and because not all FOIA requests are granted, courts
cannot assume for pleading purposes that information known to
government regulators is also known to the market.
Together, these decisions signal that at least in these two areas,
involving whistleblower complaints and FOIA requests, courts should
eschew bright-line rules in favor of a case-by-case assessment of
the plaintiff's allegations.
Given that securities filings remained at near-historic levels in
2020 despite the disruptions brought by the global pandemic,
companies should expect the threat of potential litigation to
remain high in 2021.
This memorandum is provided by Skadden, Arps, Slate, Meagher & Flom
LLP and its affiliates for educational and informational purposes
only and is not intended and should not be construed as legal
advice. This memorandum is considered advertising under applicable
state laws. [GN]
[*] Stradling Yocca Discusses CCPA's Private Right of Action
------------------------------------------------------------
Travis Brennan, Esq. -- tbrennan@stradlinglaw.com -- and Mayant
Luk, Esq. of Stradling Yocca Carlson & Rauth, in an article for
JDSupra, report that the California Consumer Privacy Act (CCPA)
gives consumers several new "Privacy Rights" -- such as the right
to know how their personal information is collected, used and
shared, the right to request deletion of their personal
information, and the right to opt-out of "sales" of their personal
information. But the act doesn't give consumers the right to sue
for a violation of Privacy Rights. The private right of action is
limited to the "Security Right," which is only violated if
sensitive categories of personal information are "subject to an
unauthorized access and exfiltration, theft, or disclosure as a
result of the business's violation of the duty to implement and
maintain reasonable security procedures and practices." If
consumers prove such a violation, the court may award (i) statutory
damages up to $750 per consumer per incident, or actual damages,
whichever is greater, (ii) injunctive or declaratory relief, and
(iii) any other relief the court deems proper. [GN]
Asbestos Litigation
ASBESTOS UPDATE: ADAO Challenges EPA’s Asbestos Risk Evaluation
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Tim Povtak, writing for Asbestos.com, reports that the Asbestos
Disease Awareness Organization (ADAO) continued its challenge of
the U.S. Environmental Protection Agency, filing a petition for
review Jan. 26 in the U.S. Court of Appeals for the Ninth Circuit
and an intent to sue notice under the Toxic Substances Control
Act.
ADAO, the leading nonprofit aimed at preventing asbestos exposure
and raising awareness about mesothelioma, was joined by five public
health groups and six doctors and scientists in its latest
filings.
The petition for review is aimed at the EPA's Final Risk Evaluation
for Asbestos from earlier this month that was roundly criticized
for underestimating the dangers of this toxic mineral, despite a
presentation of unreasonable risk to human health.
The 60-day intent to sue notice is aimed at pushing the EPA to
perform its nondiscretionary duty of addressing the use and
disposal of legacy asbestos in that risk evaluation.
Both filings named Jane Nishida, acting administrator of the EPA.
"Shaping public policy can be glacially slow. It's imperative for
us to exercise our legal options as provided in the TSCA [Toxic
Substances Control Act]," Linda Reinstein, president and founder of
ADAO, told The Mesothelioma Center at Asbestos.com. "The
dangerously incomplete final risk evaluation understates the
enormous toll of disease and death for which asbestos is directly
responsible."
ADAO has been involved in advocacy and education efforts regarding
asbestos exposure for almost two decades. Its focus in recent years
also has turned to legislative and legal initiatives, mostly
directed at the EPA.
The ultimate goal has been a complete ban of asbestos, along with
tighter requirements on reporting exposure and legacy asbestos.
Numerous legislative attempts throughout the years have failed in
Congress.
Most recently, the Alan Reinstein Ban Asbestos Now Act of 2020 –
H.R. 1603 – failed to advance through the U.S. House of
Representatives in October, despite broad support.
The EPA's Risk Evaluation for Asbestos was sparked by the 2016
amendment to the Toxic Substances Control Act, which identified the
mineral as one of the first 10 chemicals to be examined.
Although the EPA's Final Risk Evaluation for Asbestos was expected
to be finished by 2020, the agency released only Part 1 earlier
this month, addressing 16 conditions of asbestos use that presented
either occupational exposures or consumer uses.
Asbestos exposure can cause a number of serious health issues,
including mesothelioma cancer.
Part 1 failed to address legacy asbestos, which remains in
residential and commercial buildings after decades of unbridled use
throughout the construction industry.
According to the EPA, a Part 2 preliminary evaluation will become
public in mid-2021 and will address the issue of legacy asbestos
and the associated disposals of the product.
The EPA Office of Pollution Prevention and Toxics will hold a
public webinar Feb. 3 to explain its risk management process under
the TSCA and its Part 1 findings. The public will have an
opportunity to present suggestions for managing the unreasonable
risks.
"The EPA found unreasonable risk to consumers and bystanders from
all consumer uses of chrysotile asbestos," the report states.
Asbestos, which already is heavily regulated, has not been mined in
the U.S. since 2002. A record low of 100 metric tons of raw
asbestos was imported in 2019, all of which was consumed by the
chloralkali industry, which uses it for semipermeable diaphragms to
make chlorine.
The asbestos products list today includes imports of sheet gaskets,
aftermarket automotive brakes, brake blocks, other gaskets and
friction products. The exact import volume of those asbestos
products is not fully known, the EPA admits.
The criticism of the evaluation has been extensive. In December
2020, a California District Court judge ruled that the EPA has
unlawfully failed to use its TSCA authority to make a sound risk
evaluation. The judge was ruling on a lawsuit filed by ADAO and
other groups.
California is one of several states whose attorneys general sued
the EPA in 2019 over the lack of asbestos reporting. In August, the
Science Advisory Committee on Chemicals, a peer-review mechanism
for the EPA, found several problems in an earlier risk evaluation
for asbestos, believing its scope was too limited.
Some of the criticisms being levied will be addressed in the
upcoming Part 2 of the Final Risk Evaluation for Asbestos, but
others, such as asbestos-contaminated talc, will not be.
"We need people to believe in what we're doing," Reinstein said.
"Our work to prevent asbestos exposure enters a new phase."
ASBESTOS UPDATE: Bentonview Evacuated Due to Asbestos Exposure
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Erica Carbajal, writing for beckershospitalreview.com, reports that
Bentonview Park Health and Rehab, a nursing home in Monett, Mo.,
was evacuated Jan. 22 after construction crews exposed asbestos,
local NBC affiliate KSN reports.
Construction crews exposed the asbestos while removing tiles, which
prompted the evacuation of the facility's 57 residents. Some
residents were transferred to other nursing homes temporarily while
others were taken to a temporary shelter at the former Cox Monett
Hospital.
"The most important thing is we've gotten them out of the
environment and we've gotten them to a safe, sanitary and secure
location where we can keep them safe until the repairs can be
made," David Compton, director of Barry County's Office of
Emergency Management, told KSN.
Based on estimates from cleaning crews, the emergency management
office said it will take four to six weeks before it's safe for
residents to return to the facility.
"The health and safety of our residents and staff is our primary
focus, and the decision to move the residents was made quickly and
without incident," a Bentonview Park Health and Rehab spokesperson
told local NBC affiliate KY3. "We look forward to the residents'
return to Bentonview once the renovation is complete, and most
importantly, we look forward to welcoming our residents and staff
back to the community they know and love."
*********
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