/raid1/www/Hosts/bankrupt/CAR_Public/210208.mbx
C L A S S A C T I O N R E P O R T E R
Monday, February 8, 2021, Vol. 23, No. 22
Headlines
1250 BAYSHORE: Website Lacks Accessibility Info, Garcia Suit Says
1701 PIZZA: Fails to Pay Wages & Overtime, Ramirez et al. Allege
2103 HONEYWELL LLC: Handymen Seek Unpaid Overtime Wages
7-ELEVEN INC: Court Issues Protective Order in Sousa Class Suit
9F INC: Vincent Wong Reminds of March 22 Deadline
A & S VEGETABLES: Aguirre Sues Over Grocery Staff's Unpaid Wages
ADELPHIA THREE: Hall Sues to Recover Unpaid OT Pay, Withheld Tips
ADTALEM GLOBAL: Appeal in Approval of Versetto Deal Pending
ALLIANZ GLOBAL: Court Dismisses Authorization to Proceed Class Suit
ALMAVIA OF SAN FRANCISCO: Ballesteros Files Suit in California
AMAZON.COM INC: Defends Price-Fixing Related Suits in USA & Canada
AMAZON.COM INC: Faces Class Action Suit Over E-Book Pricing
AMERICAN ELECTRIC: Bragar Eagel Announces Securities Class Action
AMERICAN NATIONAL: Smith Bid to Stay Scheduling Order Tossed
APPLE INC: Altroconsumo Launches Lawsuit Over Planned Obsolescence
ARIZONA: Feb. 19 Extension for Class Status Reply Brief Sought
ASHCROFT: OBS Case Stayed Pending Court's Class Status Ruling
ASTRAZENECA PLC: Glancy Prongay Reminds of March 29 Deadline
ASTRAZENECA PLC: Rosen Law Reminds Investors of March 29 Deadline
ATLANTIC CONTRACTING: Loor Suit Seeks Overtime, Spread-of Hours Pay
ATLANTIC RICHFIELD: Website Inaccessible to Blind Users, Chu Claims
AUTOMATIC DATA: Settlement Reached in Biometric Data Use Suit
AUTOMATIC DATA: Two Potential Suits Alleging ERISA Breach Underway
AXOS FINANCIAL: Mandalevy Putative Class Suit Ongoing
AXOS FINANCIAL: Petition for Rehearing in Securities Suit Pending
BANKROLL CAPITAL: Court Grants RCWC Class Status Bid
BIOGEN INC: Facing Aducanumab Securities Litigation
BIT DIGITAL: Kessler Topaz Reminds of March 22 Deadline
BMW NORTH AMERICA: Burbank Suit Transferred to D. New Jersey
BOOZ ALLEN: Amended Langley Complaint Dismissed w/o Prejudice
BOW PLUMBING: Faces Braswell Suit Over Defective Plumbing Tubes
BRINKER INTERNATIONAL: Class Certification Hearing Set for Feb. 25
BRISTOL BAY: Class Status Related Bids Must be Filed by Sept. 20
BROADWAY FRUIT: Faces Larios-Gonzalez Suit Over Unpaid Wages
CBE GROUP: Pistone Files FDCPA Suit in District of New Jersey
CBS CORP: Claims in Stockholder Class & Derivative Suits Narrowed
CELSIUS HOLDINGS: Ruiz Files Mislabeling Suit Over Energy Drink
CENTRAL CALIFORNIA: Court Seeks More Info on Urena's Counsel Costs
CHAAC PIZZA: Asks Court to Stay Response Date to 'Send Notice' Bid
CHARLES SCHWAB: Stipulation for Class Status Date Extension OK'd
CHARTER COMMUNICATIONS: Can Compel Arbitration in Sonico Suit
CHICK-FIL-A INC: Colorado Court Refuses to Remand Garitano Suit
CINTAS CORP: Bid to Compel Arbitration in Hawkins ERISA Suit Denied
CLEAN HARBORS: Smith Files Employment Suit in Cal. State Court
COMPLETE RESERVATION: Faces Fitzhenry Suit Over Unsolicited Calls
CONSTRUCTION MONITOR: Fabricant et al. Sue Over Unsolicited Calls
COOK COUNTY, IL: Cert. Petition Filed in Mays Suit to Supreme Court
CORECIVIC INC: Ninth Cir. Appeal Filed in Owino Labor Class Suit
CREE INC: Cal. Court Denies Young's Renewed Bid to Certify Class
CVS PHARMACY: Court Grants in Part Joint Bid to Dismiss Lee Suit
DIAMOND NAIL: Response Time for Lu's Class Status Bid Extended
DISCOVERY COMMUNICATIONS: Sanchez Files ADA Suit in S.D. New York
DIVERSIFIED MAINTENANCE: Underpays Custodial Workers, Sorto Claims
DIY STYLIST: Petite Blow Dryer Has Deceptive Labeling, Thur Claims
DXP ENTERPRISES: FLSA Conditional Status Bid Nixed w/o Prejudice
EARLY INTERVENTION: Underpays Tutors, Fields Suit Claims
ENVISION HEALTHCARE: Extension of Class Status Reply Brief Sought
ENVISION HEALTHCARE: Must File Class Status Opposition by Feb. 22
EQUITY RESIDENTIAL: Wants Court to Modify Class Certification Order
EVERGREEN PROFESSIONAL: Rodriguez Bid for Final Class Cert. on Hold
EVOQUA WATER: Continues to Defend Securities Class Suit in New York
EXXON MOBIL: Bernstein Liebhard Reminds of March 29 Deadline
EXXON MOBIL: Schall Law Firm Reminds of March 29 Deadline
FACEBOOK INC: Settlement in BIPA Related Suit Granted Initial OK
FACEBOOK INC: Settlement in Cyber-Attack Suit Granted Initial OK
FACEBOOK INC: Suit Over Platform & User Data Practices Underway
FCA US: Deadline to File Class Certification Bid Set for May 14
FEDERAL INSURANCE: Claims v. XenCall in Abramson TCPA Suit Tossed
FINANCIAL BUSINESS: Brawley Sues Over Misleading Collection Letter
FIRST ADVANTAGE: Garcia Files FCRA Suit in E.D. California
FLEX LTD: Plaintiff Opening Brief Due April 19
FLORIDA SOUTHERN: Deadline For Class Status Bid Extended to April 2
FLOWCO PRODUCTION: Keating FLSA Conditional Status Bid Tossed
FORBES MEDIA: Sanchez Files ADA Suit in S.D. New York
FUSION POWER: Winters Files TCPA Suit in D. Arizona
FUTURE MOTION: Blind Users Can't Access Web Site, Angeles Says
GC SERVICES: Ct. Directs Parties to Seek Leave for Expert Discovery
GEMMA BY WP DIAMONDS: Hedges Files ADA Suit in S.D. New York
GENERAL ELECTRIC: Gets Dismissal of Most of Shareholder Lawsuit
GOJO INDUSTRIES: Hussin's Admission Pro Hac Vice in Aleisa Denied
GOODRX HOLDINGS: Vincent Wong Reminds of Feb. 16 Deadline
GOOGLE LLC: Faces HD Media Antitrust Suit Over Digital Ad Monopoly
GOOGLE LLC: JLaSalle Sues Over 'Display Ad Stack' Market Monopoly
GOVERNMENT EMPLOYEES: Deadline for Class Status Bid Extended
GOVERNMENT EMPLOYEES: Extension for Class Status Filing Sought
GRAMMARLY INC: Sanchez Files ADA Suit in S.D. New York
GREATBANC TRUST: Clare Suit Asserts Fund Mismanagement
GSC LIMITED: Fabricant et al. Sue Over Unsolicited Text Messages
GTT COMMUNICATIONS: Faces Grigore Suit Over Stock Price Drop
HALL'S SOUTHERN: Noble FLSA Class Suit Gets Settlement Approval
HEALTHCARE REVENUE: Santos Files Suit in N.D. California
HONEYDEW PRODUCTS: Palazzo Files Suit in E.D. New York
HSN INC: Underhill Files Civil Suit in Florida Circuit Court
HUGHES WATTERS: Texas Court Narrows FDCPA Claims in Salermo Suit
I.C. SYSTEM: Loses Bid to Compel Arbitration in Gilbert FDCPA Suit
IKEA US: Court Directs Dukichs to File Class Status Bid by Feb. 25
IMAGINATION IND: Conditional Cert. of Exotic Dancers Class Sought
INSTRUCTURE HOLDINGS: Oklahoma Law Files Suit in Del. Chancery Ct.
INVESTOR'S BUSINESS: Sanchez Files ADA Suit in S.D. New York
IOWA DHR: Eight Circuit Appeal Filed in CPX Civil Rights Suit
IRHYTHM TECH: Johnson Fistel Investigates Securities Suit Claims
IRONBOUND EXPRESS: Luxama Bid for Class Certification Partly OK'd
JAGUAR LAND ROVER: Court Enters Protective Order in Gibson Suit
JEFFERIES FINANCIAL: Class Suits in Minnesota & New Mexico Underway
JOHNSON CONTROLS: Bid to Dismiss Gumm Action Under Advisement
JOHNSON CONTROLS: Still Defends Aqueous Film-Forming Foam Suits
JOS. A. BANK: Website Inaccessible to Blind Users, Brooks Claims
KANSAS: Class Settlement in M.B. v. Howard Has Final Approval
KANSAS: M.B. Suit Gets Final Settlement Approval
KANYE WEST: Harris & Ruble Files Second Labor Class Action Suit
L&D LLC: Hedges Files ADA Suit in S.D. New York
LALUMINA LLC: Court Junks Bright et al. Class Suit w/o Prejudice
LIFEVANTAGE CORP: Discovery in Smith Suit Ongoing
LONG M. NGUYEN: Winters Files TCPA Suit in D. Arizona
LOOMIS ARMORED: Gaskin Seeks to Recover Unpaid Overtime Premiums
LOVELY SKIN: Sanchez Files ADA Suit in S.D. New York
LUMENTUM HOLDINGS: Discovery Ongoing in Karri Class Action
MARIBEL'S SWEETS: Hedges Files ADA Suit in S.D. New York
MARYLAND: Forced Administration of Medications in Mercer Affirmed
MCKESSON CORP: Marion Diagnostic Center Suit Dismissed
MEAD JOHNSON: Sanchez Files ADA Suit in S.D. New York
MEARS GROUP: FLSA Collective Action Certification Sought
MEDNAX INC: Failed to Protect Patient Medical Info, Bean Suit Says
MERCHANT CAPITAL: Fabricant Sues Over Unsolicited Telephone Calls
MERCURY GENERAL: Class Certification Briefing Schedule Modified
METROPOLITAN CORRECTIONAL: Inmates File COVID-19 Class Action Suit
MIDLAND CREDIT: Walden Files FDCPA Suit in N.D. Texas
MIDWESTERN PET: Carlson Claims Pet Foods Contain Toxic Ingredients
MONTE GRAB: Velez Sues Over Unpaid Minimum, Overtime Wages
MOUNTAIN STATE: Conditional Certification of Employees Class Sought
NASHVILLE, TENN: Cayton Asks Court to Modify Class Definition
NASHVILLE, TENN: Class Definition in Cayton Suit Modified
NAT'L. ASSOC. OF REALTORS: Leeder Sues Over Broker Commissions
NEW YORK: NYCTA Must Replace Agents, Court Rules in Espaillat Suit
NEW YORK: Second Circuit Affirms Judgments in Munoz Class Suit
NEWREZ LLC: Bryant Suit Removed to D. Massachusetts
NINTENDO OF AMERICA: Class Status Filing Deadline Extended
NORTH DALLAS: Response to Class Certification Bid Due February 12
NORTH LITTLE ROCK, AR: Summary Judgment in Convent Partly Affirmed
NORTHEAST RADIOLOGY: Court Narrows Claims in Cohen FAC
NORTHERN NATURAL: De Leon FLSA Conditional Status Bid Tossed
NTN BUZZTIME: Brooklyn Merger Deal Lacks Info, Gallo Suit Says
ONEOK INC: Lindsey's FLSA Conditional Certification Bid Junked
OVINTIV USA: Buffington Seeks Feb. 15 Extension to Answer Stay Bid
OVINTIV USA: Buffington Seeks Feb. 15 Extension to File Reply Brief
PANERA LLC: Hilliard BIPA Suit Removed to N.D. Illinois
PARSLEY ENERGY: Streety's Conditional Certification Bid Tossed
PATTERN ENERGY: Bid for Relief From PSLRA Discovery Stay Denied
PATTERN ENERGY: Magistrate Recommends Dismissal of Securities Suit
PEAK PROPERTY: 90-Day Extension for Class Status Filing Sought
PEAK PROPERTY: Deadline to File Class Status Bid Extended
PEL-STATE BULK: FLSA Conditional Status Bid Nixed w/o Prejudice
PENUMBRA INC: Klein Law Firm Reminds of March 16 Deadline
PENUMBRA INC: Vincent Wong Reminds Investors of March 16 Deadline
PEPPERIDGE FARM: Faces Brewer Suit Over Biometric Data Collection
PHILADELPHIA, PA: Restitutionary Class in Sourovelis Suit Certified
PHILADELPHIA: K9 Officers Claim Overtime Pay for Off-the-Clock Work
PIONEER NATURAL: Kennedy's FLSA Conditional Status Bid Junked
PLAINS ALL: Newman's FLSA Conditional Certification Bid Tossed
POLR ELECTRIC: Underpays Electricians, Barnard Suit Alleges
POLYFLUOROALKYL MAKERS: Wallace Slams Injury From Exposure Hazard
PROBUILD COMPANY: Initial Approval of Class Settlement Sought
PULASKI COUNTY SSD: 30K Class Settlement in Lamb Suit Wins Final OK
QIWI PLC: Gross Law Firm Announces Class Action Filing
QUALCOMM INC: Appeal in Broadcom Merger-Related Suit Pending
QUALCOMM INC: Appeal on Grant of Class Certification Bid Pending
QUALCOMM INC: Bid for Judgment on Pleadings Remains Pending
QUALCOMM INC: Consumer Class Suits Ongoing in Canada
QUANTUMSCAPE CORP: Jakubowitz Law Reminds of March 8 Deadline
QUICKWAY: Tooley Sues Over Failure to Provide Advance Notice
RCI LLC: Bryan Files TCPA Suit in N.D. Ohio
REALOGY GROUP: Facing Leeder Putative Class Action
REALPAGE INC: Court Tosses Diane Jones' Bid to Certify Class
REED'S INC: S.D. New York Narrows Claims in Mason Consumer Suit
REGIONS BANK: Faces Fisk Suit Over Failure to Pay Overtime Wages
RLJ C San Francisco: Website Lacks Accessibility Info, Rios Says
ROBERTA PLACE: Family of Home Care Resident Files $50MM Class Suit
ROBERTA PLACE: To Join Mega Suit Against Ontario Care Homes
ROBINHOOD FINANCIAL: Cobos Sues Over Stock Market Manipulation
ROBINHOOD FINANCIAL: Deprives Users to Trade Stocks, Gossett Says
ROBINHOOD FINANCIAL: Diamond Sues Over Stock Market Manipulation
ROBINHOOD FINANCIAL: Faces Class Action Over Gamestop Trading Halt
ROBINHOOD FINANCIAL: Removed Stock "AMC" from Platform, Omanhe Says
ROBINHOOD FINANCIAL: Restricts Investment in Free Market, Suit Says
ROBINHOOD FINANCIAL: Tampers Stock Trading, Investments, Fresa Says
ROBINHOOD FINANCIAL: Users Deprived From Buying Stocks, Suit Says
ROBINHOOD MARKETS: Restricts Buying Shares of GME, Schaff Alleges
ROBINHOOD MARKETS: Saliba Sues Over Refusal to Trade GME Stocks
ROSEBOX LLC: Hedges Files ADA Suit in S.D. New York
ROUGH TRADE: Hedges Sues Over Blind-Inaccessible Website
ROYAL SEA CRUISES: Bid to Dismiss in McCurley TCPA Suit Denied
ROYAL SEA CRUISES: Wins Bid for Summary Judgment in McCurley Suit
RUG DOCTOR: Stanley Sues Over Blind-Inaccessible Cleaning Kiosks
RUSHMORE SERVICE: Pistone Files FDCPA Suit in D. New Jersey
SAGGIO RESTAURANT: Resto Staff Seeks Unpaid Overtime/Minimum Wages
SAIKABIR HOSPITALITY: Website Lacks Accessibility Info, Lammey Says
SARASOTA DOCTORS: Florida Court Grants Summary Judgment Against Day
SCOTT SEMPLE: Class Certification Bid Filing Date Set for April 23
SCOTTSDALE INSURANCE: Cadecus Sues Over Denied COVID-19 Coverage
SELECTQUOTE INSURANCE: Danford Sues Over Unsolicited Phone Calls
SHURE INCORPORATED: Sanchez Files ADA Suit in S.D. New York
SIMPLY NOURISH: Court Narrows Claims in Grossman Class Suit
SIRIUS XM: Appeal in Flo & Eddie Class Action Stayed
SKYWEST INC: Meek Suit Seeks to Certify Frontline Employees Class
STATE FARM MUTUAL: Pete Slams Denied Insurance Coverage
STATE FARM: Class Certification Bid Filing Due September 15
STERLING BANCORP: Agreement in Principle Reached in Michigan Suit
STERLING BANCORP: Settles Securities Class Action Lawsuit
STRIDE INC: Continues to Defend Lee and Baig Putative Class Suits
SURGICAL CARE: Faces Antitrust Suit Over Collusion Allegations
SVENSK MANAGEMENT: Wallen Suit Seeks to Certify Technicians' Class
SYSCO JACKSONVILLE: A1A Burrito Suit Removed to M.D. Florida
TAWKIFY INC: Class Certification Bid Must be Filed by Sept. 23
TELIGENT INC: Class Certification Briefing Schedule Extended
TENCENT HOLDINGS: Lawyer to Represent in Breaches of Privacy Suit
TEXLEY INC: Williams Sues Over Exotic Dancers' Unpaid Minimum Wages
TODAY'S HOTEL: Website Lacks Accessibility Info, Rios Suit Claims
TOPPERS INTERNATIONAL: Bryant Class Suit Dismissed w/o Prejudice
UBER TECHNOLOGIES: Faces Short Suit Over Drivers' Misclassification
UNIT CORP: Deal Reached to Settle Chieftain Royalty Class Suit
UNIT CORP: Settlement Deal Between Subsidiary & Cockerell Reached
UNITED ENROLLMENT: Ailion Files TCPA Suit in N.D. Georgia
UNITED STATES FIRE: Epie Files Insurance Suit in W.D. Missouri
UNITED STATES: Bid to Dismiss GCA et al. Class Action Tossed
UNITED STATES: Christy Inc. Files Cert. Petition to Supreme Court
UNITED STATES: Huisha-huisha Suit Seeks to Certify Class
UNITED STATES: Lambro Seeks Proper Overtime Pay for Technicians
UNITED STATES: Torres Files Suit in District of Columbia
UNIVERSITY OF LOUISVILLE: Lyvers Suit Removed to E.D. Kentucky
URS MIDWEST: Court Denies Bid to Remand Rodriguez Labor Suit
VALVE CORP: Monopolizes Game Platform's Market Power, Suit Claims
VIA QUANDRONNO: Cheng FLSA Suit Seeks Collective Action Status
VIKTOR BENES: Faces Cocka Wage-and-Hour Suit in Cal. State Court
VISA INC: Class Certification Bid in Interchange MDL Pending
VMSB LLC: Morel Suit Seeks Unpaid Wages Under FLSA & FMWA
WALMART INC: Smith Suit Removed to S.D. Florida
WEBULL FINANCIAL: Faces Suit Over GameStop Trading Restrictions
WEBULL FINANCIAL: Restricts Buying Stocks From Platform, Suit Says
WEBULL FINANCIAL: Sanchez Files ADA Suit in S.D. New York
WEINERT ENTERPRISES: Denial of Class Cert. in Anderson Affirmed
WELLPATH LLC: Court Denies Bid to Dismiss Amended Hall Class Suit
WELLS FARGO: D'Addio Sues Over Client Associates' Unpaid Overtime
WILLIAM DOUGLAS: Carpenter Suit Removed to W.D. North Carolina
WYNNDALCO ENTERPRISES: Court Denies Bid to Stay Citizens Class Suit
XILINX INC: AMD Merger Related Suits Underway
XILINX INC: Murphy Challenges Merger Deal With Advanced Micro
Y AND P: Bakery Staff Seeks Overtime, Spread-of Hours Pay
ZOOM VIDEO: Bragar Eagel Announces Securities Class Action
ZOUND INDUSTRIES: Romero Sues Over Blind-Inaccessible Website
[*] SoCal Youth Baseball Group Hits Insurers With RICO Class Action
[*] Two Cladding Class Actions Commenced in New Zealand
*********
1250 BAYSHORE: Website Lacks Accessibility Info, Garcia Suit Says
-----------------------------------------------------------------
Orlando Garcia v. 1250 Bayshore Highway, LLC, a California Limited
Liability Company, and Does 1-10, Case No. 21GDCV00069 (Cal.
Super., Los Angeles Cty., Jan. 19, 2021) is brought on behalf of
the Plaintiff and all other similarly situated alleging violations
of the Defendant of the Americans with Disabilities Act and the
California's Unruh Civil Rights 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,
https://www.greentreeinn.com/hotels/ca/pasadena, 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 added.
Mr. Garcia is a California resident with physical disabilities who
is substantially limited in his ability to walk. He suffers from
cerebral palsy and uses a wheelchair, walker, or cane for mobility.
1250 Bayshore Highway, LLC, a California limited liability company,
owns and operates the GreenTree Pasadena Inn located at 400 S.
Arroyo Pkwy., Pasadena, 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
1701 PIZZA: Fails to Pay Wages & Overtime, Ramirez et al. Allege
----------------------------------------------------------------
EUGENIO RAMIREZ, ESTEBAN CUAUTLE, and TEOFILO ALMONTE, on behalf of
themselves, individually, and on behalf of all others similarly
situated, Plaintiffs v. 1701 PIZZA LTD. d/b/a LUIGI'S PIZZA, and
SALVATORE ROMANO, individually, and LUIGI ROMANO, individually,
Defendants, Case No. 1:21-cv-00792 (S.D.N.Y., January 28, 2021)
bring this complaint against the Defendant seeking for damages and
equitable relief from the Defendants' alleged violations of the
overtime provisions of the Fair Labor Standards Act and the New
York Labor Law.
The Plaintiffs worked for the Defendants in the position of counter
person, Ramirez from on or about November 5, 2011 until July 30,
2019, Cuautle from on or about October 29, 2011 until July 30,
2019, and Almonte from in or around October 2013 until in or around
late-April 2019.
The Plaintiffs allege that the Defendants willfully failed to pay
them their lawfully earned overtime wages at the applicable
overtime rate in accordance with the FLSA and NYLL. Specifically,
throughout the relevant time period until on or about April 30,
2018, they were required by the Defendants to work in excess of 40
hours in a workweek, but Plaintiffs Ramirez and Cuautle were only
paid a flat weekly salary, while Plaintiff Almonte was paid at a
regular hourly rate for all hours they worked in a week. Allegedly,
the Defendants did not compensate them with an additional one
hour's pay at the minimum wage rate during those days when their
shifts exceeded ten hours from beginning to end. Moreover, the
Defendants failed to provide them with accurate wage statements on
each payday, the suit says.
1701 Pizza Ltd. d/b/a Luigi's Pizza operates a Manhattan
pizzeria/restaurant owned by the individual Defendants. [BN]
The Plaintiffs are represented by:
Danielle E. Mietus, Esq.
Alexander T. Coleman, Esq.
Michael J. Borrelli, Esq.
BORELLI & ASSOCIATES, P.L.L.C.
910 Franklin Ave., Suite 200
Garden City, NY 11530
Tel: (516) 248-5550
Fax: (516) 248-6027
2103 HONEYWELL LLC: Handymen Seek Unpaid Overtime Wages
-------------------------------------------------------
Agustin Antonio Hiciano Nunez and Jose Ayende, individually and on
behalf of others similarly situated, Plaintiffs, v. 2103 Honeywell
LLC, Lineage Properties LLC, Ephraim Fruchthandler and Eli
Fruchthandler, Defendants, Case No. 21-cv-00601 (S.D. N.Y., January
22, 2021), seeks compensatory, punitive and liquidated damages,
back pay and attorney's fees for violation of the Fair Labor
Standards Act and New York Labor Laws.
Defendants own and/or manage various buildings located at 2103
Honeywell Avenue, Bronx, NY 10460 and 2115 Honeywell Avenue, Bronx,
where Plaintiffs worked as handymen. They claim to have worked in
excess of 40 hours per week without overtime compensation, denied
spread-of-hours payments and wage notices and proper paystubs. They
also claim to be denied meal/rest breaks and day-offs. [BN]
The Plaintiff is represented by:
Michael Taubenfeld, Esq.
FISHER TAUBENFELD LLP
233 Broadway, Suite 2340
New York, NY 10279
Tel: (212) 571-0700
Fax: (212) 233-3801
7-ELEVEN INC: Court Issues Protective Order in Sousa Class Suit
---------------------------------------------------------------
In the case, KARLA Y. SOUSA, on behalf of herself and all others
similarly situated, Plaintiff v. 7-Eleven, Inc., Defendant, Case
No. 3:19-cv-02142-JLS-BLM (S.D. Cal.), Magistrate Judge Barbara L.
Major of the U.S. District Court for the Southern District of
California granted the Joint Motion for Protective Order.
Disclosure and discovery activity in the action are likely to
involve production of confidential, proprietary, or private
information for which special protection from public disclosure and
from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties stipulate to and petition
the Court to enter the Stipulated Protective Order. They
acknowledge that the Order does not confer blanket protections on
all disclosures or responses to discovery and that the protection
it affords from Joint Proposed Protective Order No.
3:19-cv-02142-JLS (BLM) public disclosure and use extends only to
the limited information or items that are entitled to confidential
treatment under the applicable legal principles. The Parties
understand that nothing in the Stipulated Protective Order changes,
amends, or circumvents any court rule or local rule.
The protections conferred by the Stipulation and Order cover not
only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by the Parties or their
Counsel that might reveal Protected Material.
However, the protections conferred by the Stipulation and Order do
not cover the following information: (a) any information that is in
the public domain at the time of disclosure to a Receiving Party or
becomes part of the public domain after its disclosure to a
Receiving Party as a result of publication not involving a
violation of the Order, including becoming part of the public
record through trial or otherwise; and (b) any information known to
the Receiving Party prior to the disclosure or obtained by the
Receiving Party after the disclosure from a source who obtained the
information lawfully and under no obligation of confidentiality to
the Designating Party. Any use of Protected Material at trial will
be governed by a separate agreement or order.
Even after final disposition of the litigation, the confidentiality
obligations imposed by the Order will remain in effect until a
Designating Party agrees otherwise in writing or a Court Order
otherwise directs. Final disposition will be deemed to be the
later of (1) dismissal of all claims and defenses in this action,
with or without prejudice; and (2) final judgment herein after the
completion and exhaustion of all appeals, rehearings, remands,
trials, or reviews of the action, including the time limits for
filing any motions or applications for extension of time pursuant
to applicable law.
The Court will retain jurisdiction for a period of one year after
the conclusion of the action to enforce the terms of the Protective
Order.
Any Party or Non-Party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a
Designating Party's confidentiality designation is necessary to
avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the litigation, a
Party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after the
original designation is disclosed.
Within 60 days after the final disposition of the action, each
Receiving Party must return all Protected Material to the Producing
Party or destroy such material. As used in this subdivision, "all
Protected Material" includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the
Protected Material. Whether the Protected Material is returned or
destroyed, the Receiving Party must submit a written certification
to the Producing Party (and, if not the same person or entity, to
the Designating Party) by the 60 day deadline that (1) identifies
(by category, where appropriate) all the Protected Material that
was returned or destroyed and (2) affirms that the Receiving Party
has not retained any copies, abstracts, compilations, summaries or
any other format reproducing or capturing any of the Protected
Material.
Notwithstanding this provision, the Counsel are entitled to retain
an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports,
attorney work product, and consultant and expert work product, even
if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject
to the Protective Order as set forth.
Furthermore, within 60 days after the final disposition of the
action, the parties will move ex parte for an order authorizing the
Court to destroy all Confidential and Attorneys' Eyes Only Material
in the Court's possession.
The Court may modify the terms and conditions of the Protective
Order for good cause, or in the interest of justice, or on its own
order at any time in these proceedings.
A full-text copy of the Court's Jan. 27, 2021 Order is available at
https://tinyurl.com/2b4s2h9b from Leagle.com.
9F INC: Vincent Wong Reminds of March 22 Deadline
-------------------------------------------------
The Law Offices of Vincent Wong announce that class actions have
commenced on behalf of certain shareholders in the following
companies. If you suffered a loss you have until the lead plaintiff
deadline to request that the court appoint you as lead plaintiff.
There will be no obligation or cost to you.
9F Inc. (NASDAQ:JFU)
If you suffered a loss, contact us
at:http://www.wongesq.com/pslra-1/9f-inc-loss-submission-form?prid=12557&wire=1
Lead Plaintiff Deadline: March 22, 2021
Lawsuit on behalf of investors who purchased JFU securities: (1)
pursuant and/or traceable to the registration statement and related
prospectus issued in connection with the Company's August 14, 2019
initial public offering; and/or (2) between August 14, 2019 and
September 29, 2020.
Allegations against JFU include that: (1) the purported value and
benefits of the Company's financial institution partners and its
tri-party cooperation business model did not in fact exist and/or
were materially overstated, given that 9F and Property and Casualty
Company Limited ("PICC") had been engaged in an ongoing contractual
dispute regarding payment of service fees under their cooperation
agreement; (2) the collectability of service fees owed to 9F by
PICC under the cooperation agreement was in doubt and at serious
risk of non-payment; (3) there was a significant risk that PICC
would no longer provide credit insurance and guarantee protection
to investors and institutional funding partners; (4) as a result of
the foregoing, the Company's platform, business model, reputation
and financial results had been materially impaired; and (5) as a
result, Defendants' statements about the Company's business,
operations, and prospects were materially false and misleading
and/or lacked a reasonable basis at all relevant times.
To learn more contact Vincent Wong, Esq. either via email
vw@wongesq.com or by telephone at 212.425.1140.
Vincent Wong, Esq. is an experienced attorney who has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
A & S VEGETABLES: Aguirre Sues Over Grocery Staff's Unpaid Wages
----------------------------------------------------------------
Jose Fernando Osorio Aguirre, Selan Villanueva, Salvador Montoya
Ramirez, Neri Palacios and Jose Odin Canales Rodriguez,
individually and on behalf of all others similarly situated v. A&S
Vegetables Inc., Maharaja Asian Supermarket Inc., Jar 259 Food
Corp., Krishna Holding Inc., Amandeep Singh, Narinder Singh Gahra
and Kuljit Kaur, jointly and severally, Case No.
2:21-cv-00191-JMA-ST (E.D.N.Y., Jan. 13, 2021) seeks to recover
unpaid minimum wages and unpaid overtime premiums owed to the
Plaintiffs and the Class pursuant to both the Fair Labor Standards
Act and the New York Labor Law.
The Plaintiffs allege that the Defendants did not provide them with
overtime premium pay for hours worked over 40 each week, and did
not provide them with spread-of-hours premiums for days when they
worked in excess of 10 hours. They also assert that the Defendants
failed to provide them with accurate wage statements and wage
notices.
Mr. Aguirre worked for the Defendants at Maharaja New Hyde Park as
a general grocery employee in the produce and bulk dried food
departments, from on or about September 27, 2015 to on or about
July 10, 2020.
Mr. Villanueva was employed at Maharaja New Hyde Park and at Key
Food Glen Oaks, as a general grocery employee in the diary, dried
packaged foods, and bulk dried food departments, from on or about
July 10, 2016 to in or around February 2019.
Mr. Ramirez has also worked at Maharaja New Hyde Park, as a general
grocery employee in the produce, canned food aisle, international
and ethnic food aisle, and bulk dried food departments, from in or
around August 2019 to the present.
Mr. Canales worked for at Maharaja Bellerose, Maharaja New Hyde
Park and Key Food Glen Oaks, as a general grocery employee in the
produce and bulk dried food departments during three separate time
periods: from in or around August 2017 to in or around December
2017, from in or around June 2018 to in or around August 2019, and
finally from in or around November 2019 to in or around March
2020.
The Defendants are engaged in the wholesale food distribution and
grocery store business. [BN]
The Plaintiffs are represented by:
Brent E. Pelton, Esq.
Taylor B. Graham, Esq.
PELTON GRAHAM LLC
111 Broadway, Suite 1503
New York, NY 10006
Telephone: (212) 385-9700
ADELPHIA THREE: Hall Sues to Recover Unpaid OT Pay, Withheld Tips
-----------------------------------------------------------------
Michelle Hall, individually and on behalf of others similarly
situated, Plaintiff, v. Adelphia Three Corp., Petro Kontos and
William Balis, Defendants, Case No. 21-cv-01106 (D. N.J., January
25, 2021), seeks to recover unpaid minimum and overtime wages and
spread-of-hours pay pursuant to the Fair Labor Standards Act of
1938 and New Jersey labor laws, including applicable liquidated
damages, interest, attorneys' fees and costs.
Defendants own, operate, or control a diner located in Runnemede,
New Jersey under the name "Phily Diner" where Hall were employed as
a waitress. She claims to have generally worked in excess of 40
hours a week without overtime for hours in excess of 40 hours per
workweek. Defendants claimed tip credit for all hours worked
despite requiring her to work non-tipped duties for hours exceeding
20% of the total hours worked each workweek. She also claims to
have never received wage statements. [BN]
Plaintiff is represented by:
Charles J. Kocher, Esq.
Matthew A. Luber, Esq.
McOMBER McCOMBER & LUBER P.C.
39 E. Main Street
Marlton, NJ 08053
Tel: (856) 985-9800
Fax: (856) 263-2450
ADTALEM GLOBAL: Appeal in Approval of Versetto Deal Pending
-----------------------------------------------------------
Adtalem Global Education Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 2, 2021,
for the quarterly period ended December 31, 2020, that the appeal
in the approval of the settlement in the class action suit
initiated by Nicole Versetto, is pending.
On April 13, 2018, a putative class action lawsuit was filed by
Nicole Versetto, individually and on behalf of others similarly
situated, against the Adtalem, DeVry University Inc., and DeVry/New
York Inc. in the Circuit Court of Cook County, Illinois, Chancery
Division.
The complaint was filed on behalf of herself and three separate
classes of similarly situated individuals who were citizens of the
State of Illinois and who purchased or paid for a DeVry University
program between January 1, 2008 and April 8, 2016.
The plaintiff claims that defendants made false or misleading
statements regarding DeVry University's graduate employment rate
and asserts causes of action under the Illinois Uniform Deceptive
Trade Practices Act, Illinois Consumer Fraud and Deceptive Trade
Practices Act, and Illinois Private Business and Vocational Schools
Act, and claims of breach of contract, fraudulent
misrepresentation, concealment, negligence, breach of fiduciary
duty, conversion, unjust enrichment, and declaratory relief as to
violations of state law.
The plaintiff seeks compensatory, exemplary, punitive, treble, and
statutory penalties and damages, including pre-judgment and
post-judgment interest, in addition to restitution, declaratory and
injunctive relief, and attorneys' fees.
The Adtalem Parties moved to dismiss this complaint on June 20,
2018. On March 11, 2019, the Court granted plaintiff's motion for
leave to file an amended complaint. Plaintiff filed an amended
complaint that same day, asserting similar claims, with new lead
plaintiff, Dave McCormick. Defendants filed a motion to dismiss
plaintiff's amended complaint on April 15, 2019 and the Court
granted Defendants' motion on July 29, 2019, with leave to amend.
The plaintiff has filed an amended complaint on August 26, 2019.
On October 18, 2019, the defendants moved to dismiss this complaint
as it is substantially similar to the one the Court previously
dismissed. No hearing on the motion to dismiss is currently
scheduled.
The Court granted a Motion for Preliminary Approval of Class Action
Settlement on May 28, 2020.
In conjunction with the Settlement, Adtalem was required to
establish a settlement fund by placing $44.95 million into an
escrow account, which is recorded within prepaid expenses and other
current assets on the Consolidated Balance Sheet as of June 30,
2020 and December 31, 2020.
Adtalem management determined a loss contingency was probable and
reasonably estimable. As such, we also recorded a loss contingency
accrual of $44.95 million on the Consolidated Balance Sheet as of
June 30, 2020 and charged the contingency loss within discontinued
operations in the Consolidated Statement of Income (Loss) for the
year ended June 30, 2020.
The company anticipates the potential payments related to this loss
contingency to be made from the escrow account during fiscal year
2021. This loss contingency estimate could differ from actual
results and result in additional charges or reversals in future
periods.
The Court issued an order approving the settlement on October 7,
2020, and dismissed the action with prejudice.
On November 2, 2020, Stoltmann Law Offices filed on behalf of
objector Jose David Valderrama a notice to appeal the Court's order
approving the settlement.
On November 5, 2020, objector Richard Peart filed a notice to
appeal the Court's order approving the settlement. Those appeals
have been consolidated before the Appellate Court of Illinois,
First District.
Objector's brief is currently due to be filed on February 4, 2021.
Plaintiffs' and the Adtalem Parties' briefs are due to be filed on
March 11, 2021, and Objector's reply brief is due to be filed on
March 25, 2021.
Adtalem Global Education Inc. provides educational services
worldwide. It operates through three segments: Medical and
Healthcare, Professional Education, and Technology and Business.
Adtalem Global Education Inc. was founded in 1931 and is based in
Chicago, Illinois.
ALLIANZ GLOBAL: Court Dismisses Authorization to Proceed Class Suit
-------------------------------------------------------------------
Nicolas Sacha Nesviginsky, Esq., of Miller Thomson LLP, in an
article for Mondaq, reports that the COVID-19 pandemic has resulted
in litigation, particularly in the context of class actions. In
2020, applications for authorization to commence class actions have
been made notably against nursing homes, insurers and airline
companies.
In 9369-1426 Québec inc. (Restaurant Baton Rouge), the respondent,
Allianz Global Risks US Insurance Company ("Allianz"), asked that
the Superior Court of Quebec decline jurisdiction in favour of
mediation and arbitration proceedings, the whole in accordance with
the policy.
Facts
The petitioner, Baton Rouge, sought to institute a class action to
be indemnified by Allianz on the grounds of business interruption
losses which it and the class members would have sustained due to
the COVID-19 health crisis. This resulted in a shutdown of economic
activities in the province of Quebec. However, Allianz denied
coverage on the grounds that the policy did not cover such loss.
Furthermore, the latter submitted that the parties were bound by
the dispute resolution terms stipulated in the policy which
prohibited Baton Rouge from commencing a class action in the
Superior Court of Quebec.
Analysis
Should the Superior Court of Quebec decline to hear the matter and,
instead, refer it to a mediator and arbitrator appointed in
accordance with the dispute resolution process stipulated in the
applicable insurance policy?
The Superior Court, per the Honourable Gary D.D. Morrison, J.S.C.,
concluded that it should decline to hear this matter pursuant to
the policy's provisions. While the latter provided certain terms
regarding the jurisdiction and the commencement of proceedings, in
the case of insureds located in Quebec, the Provincial Statutory
Conditions Applicable to the Province of Quebec only clause was
applicable:
5. Dispute Resolution
In the event that the Insurer and the Insured(s) cannot agree
concerning either the coverage or the quantum afforded by this
Policy, it is agreed that the dispute shall be resolved in
accordance with the dispute resolution process hereinafter
described:
a. Mediation with a Mediator mutually agreed by the parties to the
dispute. If the parties fail to concur on the choice of the
Mediator, a Court shall appoint a Mediator on a Motion by one of
the parties.
b. If settlement at Mediation is not possible, the dispute will be
referred to Arbitration in accordance with the applicable
Arbitration legislation/regulations in the jurisdiction in which
the Policy is issued. The decision of the Arbitrator will be
binding on all parties to the dispute with no right of appeal.
c. Each party shall bear its own costs and expenses in connection
with the dispute resolution process. The costs and expenses of
Mediation and Arbitration shall be shared equally by the parties to
the dispute. By agreement in writing, the Insurer and the
Insured(s) may waive compliance with this section or any part
thereof for purposes of a specified dispute.
In light of the above, and pursuant to the rules provided in the
Civil Code of Quebec, Courts are to abide by the contract's terms.
The fact that the dispute concerned the interpretation of an
insurance policy did not prevent it from being submitted to
arbitration. In the case that parties are bound by an arbitration
clause, Courts are to defer said dispute to arbitration, unless
there is evidence that the arbitration agreement is null. The
Honourable Gary D.D. Morrison concluded that "on its face, [the
wording of the dispute resolution clause] is a mandatory, clear,
unambiguous, final and binding arbitration clause." Furthermore,
contrary to Baton Rouge's submission, the other clauses in the
policy did not create any confusion as to its validity and
enforcement.
The Superior Court also dismissed Baton Rouge's argument as to the
scope of the Policy Jurisdiction clause. The latter stipulated that
"The Courts in the Court District in which the Named Insured is
located shall have exclusive jurisdiction in case of a coverage
dispute." The Court concluded that this provision did not concern
subject-matter jurisdiction, but rather territorial jurisdiction.
As such, it did not create any conflict with the other provisions
of the policy.
The dispute resolution clause, which was not illegal or contrary to
public order, therefore limited any type of action before the
courts. In addition, the Court addressed the validity of a dispute
resolution clause considering the petitioner's application to
commence a class action:
"[42] The fact that the initial introductive application is one
that seeks authorization to institute a class action is of no
substantive relevance.
[43] The class action provisions contained in the Code of Civil
Procedure are merely of a procedural nature. They do not modify
substantive law. Nor do they create competence for the Superior
Court over certain disputes where the parties have lawfully decided
to exclude it."
According to the Court, the nature of the claim was not outside of
the mediator or arbitrator's jurisdiction. Indeed, contrary to
Baton Rouge's submission that Allianz's denial of coverage
constituted an abuse of right, the Court concluded that this was
insufficient to invalidate the dispute resolution clause.
Baton Rouge contended that, in the event the Court granted
Allianz's motion, the result would be that each insured would have
to abide the dispute resolution process provided in the policy.
However, this would discourage them given the length and costs
involved. The Court stated that it "will not comment on all
possible outcomes, however, the equity argument raised by Baton
Rouge is insufficient to overcome what is a valid dispute
resolution process. In fact, Baton Rouge does not actually plead
that it is invalid per se. [Furthermore.], competence is a matter
of public order. It is not a matter of equity."
Should the Court immediately determine the competence of a mediator
and arbitrator to act in the matter of Baton Rouge's personal
claim?
The Court concluded that it is within its jurisdiction to determine
this issue.
In general, pursuant to the principle of competence-competence,
Courts will let arbitrators determine the issue of jurisdiction.
However, "where the matter of jurisdiction is one of law or mixed
fact and law, the court can, when possible on summary and
superficial examination, immediately decide jurisdiction, and this
in respect of the principle of proportionality."
In this instance, the Court was already seized of this issue given
the declinatory exception submitted by Allianz. The Honourable Gary
D.D. Morrison concluded that this solution was in conformity with
the Code of Civil Procedure whereby a Court can intervene and
determine the role of the mediator and the competence of the
arbitrator. For this reason, the mediator and arbitrator were to be
appointed in conformity with the dispute resolution clause provided
in the policy.
Conclusion
In light of the above, the Superior Court of Quebec granted
Allianz's motion and referred the parties to a mediator and
arbitrator in accordance with the dispute resolution process
stipulated in the policy. The application for authorization to
institute a class action was therefore dismissed.
In this case, the Superior Court concluded that in the presence of
an arbitration clause, Courts are to decline jurisdiction. The
takeaway here is that the fact that a party wishes to commence a
class action is irrelevant when dealing with an arbitration clause.
Indeed, class actions are a procedural vehicle which do not impact
substantive law. In addition, insurance disputes regarding the
interpretation of a policy may be submitted to arbitration.
In its decision, the Superior Court dismissed the petitioner's
argument that the length and costs involved in
mediation/arbitration proceedings would discourage insureds from
exercising their rights. While the Court ultimately dismissed Baton
Rouge's argument, which was predicated upon equity, it stated that
it would not comment on all possible outcomes. Arbitration clauses
are to be enforced. However, it will be interesting to see if
parties will attempt to set them aside by invoking principles of
accessibility to justice. [GN]
ALMAVIA OF SAN FRANCISCO: Ballesteros Files Suit in California
--------------------------------------------------------------
A class action lawsuit has been filed against Almavia of San
Francisco, et al. The case is styled as Marites Ballesteros,
individually and on behalf of all others similarly situated v.
Almavia of San Francisco and Does 1-50, inclusive, Case No.
CGC21588913 (Cal. Super., San Francisco Cty., Jan. 13, 2021).
The lawsuit arises from non-exempt complaints.
A case management conference is set for June 16, 2021 before Judge
Samuel K. Feng.
Almavia of San Francisco is an assisted living facility in San
Francisco, California. [BN]
The Plaintiff is represented by:
Robert Ottinger, Esq.
OTTINGER EMPLOYMENT LAW
535 Mission St 14th Floor
San Francisco, CA 94105
Telephone: (415) 508-7786
E-mail: robert@ottingerlaw.com
AMAZON.COM INC: Defends Price-Fixing Related Suits in USA & Canada
------------------------------------------------------------------
Amazon.com, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 3, 2021, for the
fiscal year ended December 31, 2020, that the company is defending
against several class action suits in U.S.A. and Canada related to
alleged price-fixing arrangements between Amazon.com, Inc. and
third-party sellers.
Beginning in March 2020, a number of class-action complaints were
filed alleging, among other things, price-fixing arrangements
between Amazon.com, Inc. and third-party sellers in Amazon's
stores, monopolization and attempted monopolization of an alleged
market in online retail or other submarkets, and consumer
protection and unjust enrichment claims.
In March 2020, Frame-Wilson v. Amazon.com, Inc. was filed in the
United States District Court for the Western District of
Washington. Beginning in April 2020, class action complaints were
filed in the Superior Court of Quebec – Division of Montreal, the
Ontario Superior Court of Justice, and the Federal Court of Canada
against Amazon.com, Inc. and related entities.
The complaints allege several distinct purported classes, including
consumers who purchased a product through Amazon's stores and
consumers who purchased a product offered by Amazon through another
e-commerce retailer.
The complaints seek billions of dollars of alleged actual damages,
treble damages, punitive damages, and injunctive relief.
Amazon.com said, "We dispute the allegations of wrongdoing and
intend to defend ourselves vigorously in these matters."
Amazon.com, Inc., is an American multinational technology company
based in Seattle, Washington that focuses on e-commerce, cloud
computing, digital streaming, and artificial intelligence. It is
considered one of the Big Four technology companies along with
Google, Apple, and Facebook.
AMAZON.COM INC: Faces Class Action Suit Over E-Book Pricing
-----------------------------------------------------------
Haim Ravia, Esq. -- HRavia@PearlCohen.com -- Dotan Hammer, Esq. --
DHammer@PearlCohen.com -- and Adi Shoval, Esq. --
AShoval@pearlcohen.com -- of Pearl Cohen Zedek Latzer Baratz, in an
article for Lexology, report that a class action asserted against
Amazon in a federal district court in New York alleges that it
spurred an increase in e-books' prices for its competitors in
violation of U.S. antitrust law.
According to the claim, Amazon, which controls about 90 percent of
the digital-book market, reached an agreement with five major
publishers, according to which they will not offer their e-books at
lower prices than the prices offered on Amazon. This is a
contractual clause also known as the "most favored nation" (MFN).
Amazon charges high commissions and other costs to publishers,
which in turn drives publishers to significantly increases the
retail price of the eBooks they sell on Amazon.com. Because of the
MFN clause, the arrangement also caused a price increase in
competing eBook sellers, even though they charge much lower
commission and could have offered the books at lower retail
prices.
The lawsuit demands that Amazon cease to include these MFN clauses
in its publishing agreements and that it refund consumers for the
price gap, which the plaintiffs allege is as high as 30% of the
e-book's listed price.
This is not the first time Amazon is accused of anti-competitive
practices for using similar contractual terms. In 2015, the EU
Council found that Amazon violated EU antitrust law and banned
Amazon from including and enforcing such contractual terms in
agreements with digital-book publishers in the EU for five years.
The case is Shannon Fremgen v. Amazon.com, Inc., case No.
1:21-cv-351. [GN]
AMERICAN ELECTRIC: Bragar Eagel Announces Securities Class Action
-----------------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, is investigating certain officers and directors of
American Electric Power Company, Inc. ("AEP") (NYSE: AEP) and Zoom
Video Communications, Inc. (NASDAQ: ZM) on behalf of long-term
stockholders. More information about each potential case can be
found at the link provided.
American Electric Power Company, Inc. ("AEP") (NYSE: AEP)
Bragar Eagel & Squire is investigating certain officers and
directors of AEP following a class action complaint that was filed
against AEP on August 20, 2020,
The complaint alleges that throughout the Class Period defendants
made false and/or misleading statements and/or failed to disclose
that: (1) the Company covertly participated in the "the largest
public corruption case in Ohio history"; (2) the Company secretly
funneled substantial funds to Ohio political organizations and
politicians to bribe politicians to pass Ohio House Bill 6, which
benefitted the Company and its coal-fired generation assets; (3)
the Company partially funded a massive, misleading advertising
campaign in support of HB6 and in opposition to a ballot initiative
to repeal HB6 by passing substantial sums through a web of dark
money entities and front companies in order to conceal the
Company's involvement; (4) the Company aided in subverting a
citizens' ballot initiative to repeal HB6; (5) as a result of the
foregoing, defendants' Class Period statements regarding the
Company's regulatory and legislative efforts were materially false
and misleading; (6) as a result of the foregoing, the Company would
face increased scrutiny; (7) the Company was subject to undisclosed
risk of reputational, legal and financial harm; (8) the bribery
scheme would jeopardize the benefits the Company sought by HB6; (9)
as opposed to the Company's repeated public statements regarding a
move to clean energy, it sought a dirty energy bailout; (10) as
opposed to the Company's repeated public statements regarding
protection of its customers' interests, the Company sought an extra
and state-mandated surcharge on its customers' bills; and (11) as a
result of the foregoing, 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 our investigation into AEP go to:
https://bespc.com/cases/AEP
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.comwww.bespc.com [GN]
AMERICAN NATIONAL: Smith Bid to Stay Scheduling Order Tossed
-------------------------------------------------------------
In the class action lawsuit captioned as Smith v. American National
Property and Casualty Company, Case No. 4:20-cv-00115 (N.D. Okla),
the Hon. Judge Gregory K. Frizzell entered an order denying the
Plaintiff's unopposed motion to stay scheduling order deadlines.
The nature of suit states Diversity-Insurance Contract.
American National provides insurance services.[CC]
APPLE INC: Altroconsumo Launches Lawsuit Over Planned Obsolescence
------------------------------------------------------------------
Italian consumer association Altroconsumo said on Monday it had
told Apple it has launched a class action against the U.S. tech
giant for the practice of planned obsolescence.
In a statement Altroconsumo said it was asking for damages of 60
million euros ($73 million) on behalf of Italian consumers tricked
by the practice which had also been recognised by Italian
authorities.
Altroconsumo said the lawsuit covers owners of the iPhone 6 and 6
Plus, 6S and 6S Plus, sales of which in Italy totalled some 1
million phones between 2014 and 2020.
Apple said in an email that it had never done anything to
intentionally shorten the life of any Apple product, or degrade the
user experience to drive customer upgrades.
Two similar lawsuits against Apple have been filed in Belgium and
Spain for the planned obsolescence of iPhones. European consumer
association Euroconsumers, which is coordinating the three
lawsuits, said it was also planning to launch a class action in
Portugal in the coming weeks. [GN]
ARIZONA: Feb. 19 Extension for Class Status Reply Brief Sought
--------------------------------------------------------------
In the class action lawsuit captioned as Stacy Satzman; Daniel
Brinauer; Bonnie Huffman; and all those similarly situated, v.
David Shinn, Director of the Arizona Department of Corrections
Rehabilitation & Reentry, in his official capacity; Arizona
Department of Corrections Rehabilitation & Reentry, Case No.
2:20-cv-02402-SPL-JFM (D. Ariz.), the Plaintiffs ask the Court to
enter an order extending the time to file their reply in support of
their pending motion for class certification, until February 19,
2021.
Currently, the reply brief is due February 1, 2021. This is the
Plaintiffs' first request for an extension. This motion is made in
good faith and not for purposes of delay. The extension is needed
to ensure that Plaintiffs have sufficient time to fully respond to
the legal arguments and factual assertions submitted by the
Defendant in opposition to the pending motion. The Defendant's
counsel does not oppose this request, say the Plaintiffs.
The Arizona Department of Corrections is statutory responsible for
the incarceration of inmates in 10 prisons in the U.S. state of
Arizona. As of December 2015, the ADC manages over 42,643
imprisoned inmates and over 5,466 inmates who have been paroled or
that are statutorily released. ADC is also in involved in
recruitment and training of Correctional Officers at the
Correctional Officer Training Academy.
A copy of the Plaintiffs' motion dated Jan. 27, 2020 is available
from PacerMonitor.com at http://bit.ly/3cF6DEPat no extra
charge.[CC]
Attorneys for the Plaintiffs Stacy Satzman, Daniel Brinauer, Bonnie
Huffman and all those similarly situated, are:
Jordan A. Kroop, Esq.
Thomas D. Ryerson, Esq.
Janet M. Howe, Esq.
PERKINS COIE LLP
2901 North Central Avenue, Suite 2000
Phoenix, AZ 85012-2788
Telephone: (602) 351 8000
Facsimile: (602) 648 7000
E-mail: JKroop@perkinscoie.com
TRyerson@perkinscoie.com
JHowe@perkinscoie.com
DocketPHX@perkinscoie.com
ASHCROFT: OBS Case Stayed Pending Court's Class Status Ruling
-------------------------------------------------------------
In the class action lawsuit captioned as Organization for Black
Struggle, et al., v. Ashcroft, et al., Case No. 2:20-cv-04184 (W.D.
Mo.), the Hon. Judge Brian C, Wimes entered an order staying case
pending the Court's ruling on Plaintiff's Motion to Certify Class
and Defendants' motions to dismiss.
The suit alleges violation of the Civil Rights Act.[CC]
ASTRAZENECA PLC: Glancy Prongay Reminds of March 29 Deadline
------------------------------------------------------------
Glancy Prongay & Murray LLP ("GPM"), a leading national shareholder
rights law firm, announces that a class action lawsuit has been
filed on behalf of investors who purchased AstraZeneca PLC
("AstraZeneca" or the "Company") (NASDAQ: AZN) American Depositary
Shares ("ADSs" or "shares") between May 21, 2020 and November 20,
2020 (the "Class Period"). AstraZeneca investors have until March
29, 2021 to file a lead plaintiff motion.
If you suffered a loss on your AstraZeneca investments or would
like to inquire about potentially pursuing claims to recover your
loss under the federal securities laws, you can submit your contact
information at https://www.glancylaw.com/cases/astrazeneca/. You
can also contact Charles H. Linehan, of GPM at 310-201-9150,
Toll-Free at 888-773-9224, or via email at
shareholders@glancylaw.com to learn more about your rights.
On November 23, 2020, AstraZeneca announced the results of an
interim analysis of its ongoing clinical trials for AZD1222. Though
the Company claimed that the drug candidate was highly effective in
preventing COVID-19, the primary endpoint of the trials,
AstraZeneca disclosed that the interim analysis involved two
smaller scale trials in different locales that used 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. AstraZeneca contradictorily 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. The Company noted the combined "average
efficacy of 70%" among 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.
On this news, the price of AstraZeneca's American Depositary Shares
("ADSs") fell $2.10, or 5%, over three consecutive trading sessions
to close at $52.60 per ADS on November 25, 2020.
The complaint filed 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 that: (1) initial
clinical trials for AZD1222 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.
Follow us for updates on LinkedIn, Twitter, or Facebook.
If you purchased AstraZeneca shares during the Class Period, you
may move the Court no later than March 29, 2021 to ask the Court to
appoint you as lead plaintiff. To be a member of the Class you need
not take any action at this time; you may retain counsel of your
choice or take no action and remain an absent member of the Class.
If you wish to learn more about this action, or if you have any
questions concerning this announcement or your rights or interests
with respect to these matters, please contact Charles Linehan,
Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles
California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by
email to shareholders@glancylaw.com, or visit our website at
www.glancylaw.com. If you inquire by email please include your
mailing address, telephone number and number of shares purchased.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
ASTRAZENECA PLC: Rosen Law Reminds Investors of March 29 Deadline
-----------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, announces
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. 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 29, 2021.
SO WHAT: If you purchased AstraZeneca securities during the Class
Period you may be entitled to compensation without payment of any
out of pocket fees or costs through a contingency fee arrangement.
WHAT TO DO NEXT: 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. 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 29, 2021. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience or resources. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. 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
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020 founding partner Laurence Rosen was named by law360 as a Titan
of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: 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. When the true details entered the
market, the lawsuit claims that investors suffered damages.
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.
No Class Has Been Certified. Until a class is certified, you are
not represented by counsel unless you retain one. You may select
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. [GN]
ATLANTIC CONTRACTING: Loor Suit Seeks Overtime, Spread-of Hours Pay
-------------------------------------------------------------------
Gabriel Loor, individually and on behalf of others similarly
situated, Plaintiff, v. Joel Acevedo, Defendants, Case No.
21-cv-00653 (S.D. N.Y., January 25, 2021), seeks to recover unpaid
minimum and overtime wages and spread-of-hours pay pursuant to the
Fair Labor Standards Act of 1938 and New York Labor Law, including
applicable liquidated damages, interest, attorneys' fees and
costs.
Acevedo owns, operates, or controls a construction company, located
at 373 South Broadway 4B, Yonkers, New York under the name
"Atlantic Contracting of Yonkers" where Loor was employed by as a
carpenter. He claims to have generally worked in excess of 40 hours
a week without overtime for hours in excess of 40 hours per
workweek and denied spread-of-hours premium for workdays exceeding
10 hours. He also claim to have never received wage statements.
[BN]
Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
Facsimile: (212) 317-1620
Email: michael@faillacelaw.com
ATLANTIC RICHFIELD: Website Inaccessible to Blind Users, Chu Claims
-------------------------------------------------------------------
KYO HAK CHU, individually and on behalf of all others similarly
situated, Plaintiff v. ATLANTIC RICHFIELD COMPANY d/b/a ARCO, a
Delaware corporation, and DOES 1 to 10, inclusive, Defendant, Case
No. 3:21-cv-00688-SK (N.D. Cal., January 28, 2021) is a class
action complaint brought against the Defendant for its alleged
violations of the Americans with Disabilities Act of 1990 and the
Unruh Civil Rights Act.
The Plaintiff, who is a visually impaired and legally blind person
who requires screen reading software to read Website content using
his computer, alleges that the Defendant failed to design,
construct, maintain, and operate its Website,
https://www.arco.com/en-us/northwest/, to be fully and equally
accessible to and independently usable by visually impaired and
blind people.
The Plaintiff claims that he was denied full and equal access to
the Defendant's facilities, goods, and services offered to the
public in its Website due to the multiple access barriers which he
has encountered during his numerous visits to the Defendant's
Website. The Defendant allegedly engaged in acts of intentional
discrimination because of its Website inaccessibility to blind and
visually impaired consumers as a result of its failure to comply
with Web Content Accessibility Guidelines (WCAG) 2.1.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
its Website will become and remain accessible to blin and visually
impaired consumers.
Atlantic Richfield Company d/b/a ARCO operates a gasoline stations
and offers its Website. [BN]
The Plaintiff is represented by:
Thiago Coelho, Esq.
Jasmine Behroozan, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Tel: (213) 381-9988
Fax: (213) 381-9989
E-mail: thiago@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
AUTOMATIC DATA: Settlement Reached in Biometric Data Use Suit
-------------------------------------------------------------
Automatic Data Processing, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 1, 2021,
for the quarterly period ended December 31, 2020, that the Company
has reached a settlement of all outstanding claims against
Automatic Data Processing, Inc. (ADP) for $25.0 million, subject to
the court's final approval.
In June 2018, a potential class action complaint was filed against
the Company in the Circuit Court of Cook County, Illinois asserting
that ADP violated the Illinois Biometric Privacy Act in connection
with its collection, use, and storage of biometric data of
employees of its clients who are residents of Illinois.
In addition, similar potential class action complaints have been
filed in Illinois state courts against ADP and/or certain of its
clients with respect to the collection, use, and storage of
biometric data of the employees of these clients.
In June 2020, the Company reached a settlement of all outstanding
claims against it for $25.0 million, subject to the court's final
approval.
The Company does not expect that any of the remaining cases against
its clients will result in any material liabilities to the
Company.
No further updates were provided in the Company's SEC report.
Automatic Data Processing, Inc. provides business process
outsourcing services worldwide. It operates through two segments,
Employer Services and Professional Employer Organization (PEO)
Services. The company was founded in 1949 and is headquartered in
Roseland, New Jersey.
AUTOMATIC DATA: Two Potential Suits Alleging ERISA Breach Underway
------------------------------------------------------------------
Automatic Data Processing, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 1, 2021,
for the quarterly period ended December 31, 2020, that the company
continues to defend two potential class action suits in the U.S.
District Court for the District of New Jersey.
In May 2020, two potential class action complaints were filed
against ADP, TotalSource, and related defendants in the U.S.
District Court, District of New Jersey.
The complaints assert violations of the Employee Retirement Income
Security Act of 1974 (ERISA) in connection with the ADP TotalSource
Retirement Savings Plan's fiduciary administrative and investment
decision-making.
The complaints seek statutory and other unspecified monetary
damages, injunctive relief, and attorney's fees.
These claims are still in their earliest stages and the Company is
unable to estimate any reasonably possible loss, or range of loss,
with respect to these matters.
The Company intends to vigorously defend against these lawsuits.
No further updates were provided in the Company's SEC report.
Automatic Data Processing, Inc. provides business process
outsourcing services worldwide. It operates through two segments,
Employer Services and Professional Employer Organization (PEO)
Services. The company was founded in 1949 and is headquartered in
Roseland, New Jersey.
AXOS FINANCIAL: Mandalevy Putative Class Suit Ongoing
-----------------------------------------------------
Axos Financial, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on January 28, 2021, for the
quarterly period ended December 31, 2020, that the company
continues to defend a putative class action suit entitled,
Mandalevy v. BofI Holding, Inc., et al.
On April 3, 2017, the Company, its Chief Executive Officer and its
Chief Financial Officer were named defendants in a putative class
action lawsuit styled Mandalevy v. BofI Holding, Inc., et al, and
brought in United States District Court for the Southern District
of California.
The Mandalevy Case seeks monetary damages and other relief on
behalf of a putative class that has not been certified by the
Court. The complaint in the Mandalevy Case alleges a class period
that differs from that alleged in the First Class Action, and that
the Company and other named defendants violated Sections 10(b) and
20(a) of the Securities Exchange Act of 1934, and Rule 10b-5
promulgated thereunder, by failing to disclose wrongful conduct
that was alleged in a March 2017 media article.
The Mandalevy Case has not been consolidated into the First Class
Action. On December 7, 2018, the Court entered a final order
granting the defendants’ motion and dismissing the Mandalevy Case
with prejudice.
Subsequently, the plaintiff filed a notice of appeal and the Court
took the matter under advisement.
On November 3, 2020, the Court issued a ruling affirming in part
and reversing in part the District Court's Order dismissing the
Class Action Second Amended Complaint.
Axos Financial, Inc. operates as the holding company for BofI
Federal Bank that provides consumer and business banking products
in the United States. The company offers deposits products,
including consumer and business checking, demand, savings, and time
deposit accounts. Axos Financial, Inc. was incorporated in 1999 and
is based in San Diego, California.
AXOS FINANCIAL: Petition for Rehearing in Securities Suit Pending
-----------------------------------------------------------------
Axos Financial, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on January 28, 2021, for the
quarterly period ended December 31, 2020, that the petition for a
rehearing with respect to a decision in the suit entitled, In re
BofI Holding, Inc. Securities Litigation, Case #:
3:15-cv-02324-GPC-KSC, is pending.
On October 15, 2015, the Company, its Chief Executive Officer and
its Chief Financial Officer were named defendants in a putative
class action lawsuit styled Golden v. BofI Holding, Inc., et al,
and brought in United States District Court for the Southern
District of California.
On November 3, 2015, the Company, its Chief Executive Officer and
its Chief Financial Officer were named defendants in a second
putative class action lawsuit styled Hazan v. BofI Holding, Inc.,
et al, and also brought in the United States District Court for the
Southern District of California.
On February 1, 2016, the Golden Case and the Hazan Case were
consolidated as In re BofI Holding, Inc. Securities Litigation,
Case #: 3:15-cv-02324-GPC-KSC, and the Houston Municipal Employees
Pension System was appointed lead plaintiff.
The plaintiffs allege that the Company and other named defendants
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, and Rule 10b-5 promulgated thereunder, by failing to disclose
wrongful conduct that was alleged in a complaint filed in
connection with a wrongful termination of employment lawsuit filed
on October 13, 2015 and that as a result the Company's statements
regarding its internal controls, as well as portions of its
financial statements, were false and misleading.
On March 21, 2018, the Court entered a final order dismissing the
Class Action with prejudice. Subsequently, the plaintiff appealed,
the Court overturned the dismissal and the Company is preparing a
petition for a rehearing.
No further updates were provided in the Company's SEC report.
Axos Financial, Inc. operates as the holding company for BofI
Federal Bank that provides consumer and business banking products
in the United States. The company offers deposits products,
including consumer and business checking, demand, savings, and time
deposit accounts. Axos Financial, Inc. was incorporated in 1999 and
is based in San Diego, California.
BANKROLL CAPITAL: Court Grants RCWC Class Status Bid
-----------------------------------------------------
In the class action lawsuit captioned as RIVER CHIROPRACTIC AND
WELLNESS CENTER,LLC, v. BANKROLL CAPITAL, INC., Case No.
1:20-cv-00688-DCN (N.D. Ohio), the Hon. Judge Donald C. Nugent
entered an order granting Plaintiff's Motion for class
certification without objection or opposition.
The Plaintiff brings this action to secure redress from the
Defendant Bankroll's practice of sending unsolicited promotional
faxes without consent of the recipient in violation of the
Telephone Consumer Protection Act (TCPA).
River Chiropractic si a medical group practice located in Rocky
River, Ohio.
Bankroll is a financial technology company.
A copy of the Court's Marginal Entry Order dated Jan. 28, 2020 is
available from PacerMonitor.com at https://bit.ly/36LfeCo at no
extra charge.[CC]
BIOGEN INC: Facing Aducanumab Securities Litigation
---------------------------------------------------
Biogen Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on February 3, 2021, for the quarterly
period ended December 31, 2020, that the company is facing
Aducanumab Securities Litigation.
The company and certain current and former officers are named as
defendants in an action filed by a shareholder on November 13,
2020, in the U.S. District Court for the Central District of
California and an action filed by a shareholder on January 5, 2021,
in the U.S. District Court for the District of Massachusetts.
Both actions allege violations of federal securities laws under 15
U.S.C Section 78j(b) and Section 78t(a) and 17 C.F.R. Section
240.10b-5 and are seeking a declaration of the action as a class
action and an award of damages, interest and attorneys' fees.
An estimate of the possible loss or range of loss cannot be made at
this time.
No trial date has been set.
Biogen Inc. discovers, develops, manufactures, and delivers
therapies for treating neurological and neurodegenerative diseases
worldwide. The company was founded in 1978 and is headquartered in
Cambridge, Massachusetts.
BIT DIGITAL: Kessler Topaz Reminds of March 22 Deadline
-------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP reminds that an
investor securities fraud class action lawsuit has been filed
against Bit Digital, Inc. (NASDAQ: BTBT) ("Bit Digital") on behalf
of those who purchased or acquired Bit Digital securities between
December 21, 2020 and January 8, 2021, inclusive (the "Class
Period").
Important Deadline: Investors who purchased or acquired Bit Digital
securities during the Class Period may, no later than March 22,
2021, seek to be appointed as a lead plaintiff representative of
the class. For additional information or to learn how to
participate in this litigation please contact Kessler Topaz Meltzer
& Check, LLP: James Maro, Esq. (484) 270-1453 or Adrienne Bell,
Esq. (484) 270-1435; toll free at (844) 887-9500; via e-mail at
info@ktmc.com; or click
https://www.ktmc.com/bit-digital-inc-securities-class-action?utm_source=PR&utm_medium=link&utm_campaign=bit%20digital#overview
According to the complaint, Bit Digital is a holding company that
engages in the bitcoin mining business through its wholly owned
subsidiaries in the United States and Hong Kong.
The Class Period commences on December 21, 2020 when Bit Digital
announced its revised third quarter 2020 financial results in a
press release.
On January 11, 2021, J Capital Research ("J Capital") issued a
research report alleging, among other things, that Bit Digital
operates "a fake crypto currency business . . . designed to steal
funds from investors." Though Bit Digital claims "it was operating
22,869 bitcoin miners in China," J Capital alleged that "is simply
not possible" and stated that "[w]e verified with local governments
supposedly hosting the BTBT mining operation that there are no
bitcoin miners there."
Following this news, Bit Digital's stock price fell $6.27 per
share, or 25%, to close at $18.76 per share on January 11, 2021.
The complaint alleges that throughout the Class Period, the
defendants failed to disclose to investors that: (1) Bit Digital
overstated the extent of its a bitcoin mining operation; and (2) as
a result of the foregoing, the defendants' positive statements
about Bit Digital's business, operations, and prospects were
materially misleading and/or lacked a reasonable basis.
Bit Digital investors may, no later than March 22, 2021, seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLP, or other counsel, or may choose
to do nothing and remain an absent class member. A lead plaintiff
is a representative party who acts on behalf of all class members
in directing the litigation. In order to be appointed as a lead
plaintiff, the Court must determine that the class member's claim
is typical of the claims of other class members, and that the class
member will adequately represent the class. Your ability to share
in any recovery is not affected by the decision of whether or not
to serve as a lead plaintiff.
Kessler Topaz Meltzer & Check, LLP prosecutes class actions in
state and federal courts throughout the country involving
securities fraud, breaches of fiduciary duties and other violations
of state and federal law. Kessler Topaz Meltzer & Check, LLP is a
driving force behind corporate governance reform, and has recovered
billions of dollars on behalf of institutional and individual
investors from the United States and around the world. The firm
represents investors, consumers and whistleblowers (private
citizens who report fraudulent practices against the government and
share in the recovery of government dollars). The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP, please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
Adrienne Bell, Esq.
280 King of Prussia Road
Radnor, PA 19087
(844) 887-9500 (toll free)
(610) 667-7706
info@ktmc.com [GN]
BMW NORTH AMERICA: Burbank Suit Transferred to D. New Jersey
------------------------------------------------------------
The case styled as William Martin Burbank, individually and on
behalf of all others similarly situated v. BMW North America, LLC,
Defendant; Adam Kavon, Intervenor; Case No. 2 8:20-cv-02273, was
transferred from the U.S. District Court for the Central District
of California to the U.S. District Court for the District of New
Jersey on Feb. 2, 2021.
The District Court Clerk assigned Case No. 2:21-cv-01711 to the
proceeding.
The nature of suit is stated as other contract arising from
contract dispute.
BMW of North America, LLC (BMW NA) -- https://www.bmwusa.com/ --
was established in 1975 as the United States importer of BMW
luxury/performance vehicles.[BN]
The Plaintiff is represented by:
Mark D. O'Connor, Esq.
O'CONNOR LAW GROUP
384 Forest Ave Ste. 17
Laguna Beach, CA 92651-2133
Phone: (949) 494-9090
Fax: (949) 494-9913
Email: moconnor@teamolg.com
The Defendant is represented by:
Eric Y. Kizirian, Esq.
LEWIS BRISBOIS BISGAARD AND SMITH LLP
633 West 5th Street Suite 4000
Los Angeles, CA 90071
Phone: (213) 580-3981
Fax: (213) 250-7900
The Intervenor is represented by:
Todd M. Friedman, Esq.
CITIGROUP CENTER
153 E. 53rd Street
New York, NY 10022-4675
Phone: (212) 446-4900
BOOZ ALLEN: Amended Langley Complaint Dismissed w/o Prejudice
-------------------------------------------------------------
Booz Allen Hamilton Holding Corporation said in its Form 10-Q
Report filed with the Securities and Exchange Commission on January
29, 2021, for the quarterly period ended December 31, 2020, that
the court overseeing the case, Langley v. Booz Allen Hamilton
Holding Corp., has dismissed the amended complaint in its entirety
without prejudice.
On June 19, 2017, a purported stockholder of the Company filed a
putative class action lawsuit in the United States District Court
for the Eastern District of Virginia styled Langley v. Booz Allen
Hamilton Holding Corp., No. 17-cv-00696 naming the Company, its
Chief Executive Officer and its Chief Financial Officer as
defendants purportedly on behalf of all purchasers of the Company's
securities from May 19, 2016 through June 15, 2017.
On September 5, 2017, the court named two lead plaintiffs, and on
October 20, 2017, the lead plaintiffs filed a consolidated amended
complaint.
The complaint asserts claims under Sections 10(b) and 20(a) of the
Exchange Act and Rule 10b-5 promulgated thereunder, alleging
misrepresentations or omissions by the Company purporting to relate
to matters that are the subject of the DOJ investigation.
The plaintiffs seek to recover from the Company and the individual
defendants an unspecified amount of damages.
The Company believes the suit lacks merit and intends to defend
against the lawsuit. Motions to dismiss were argued on January 12,
2018, and on February 8, 2018, the court dismissed the amended
complaint in its entirety without prejudice.
Booz Allen said, "At this stage of the lawsuit, the Company is not
able to reasonably estimate the expected amount or range of cost or
any loss associated with the lawsuit."
No further updates were provided in the Company's SEC report.
Booz Allen Hamilton Holding Corporation provides management and
technology consulting, engineering, analytics, digital, mission
operations, and cyber solutions to governments, corporations, and
not for-profit organizations in the United States and
internationally. Booz Allen Hamilton Holding Corporation was
founded in 1914 and is headquartered in McLean, Virginia.
BOW PLUMBING: Faces Braswell Suit Over Defective Plumbing Tubes
---------------------------------------------------------------
ROSELYN BRASWELL, Plaintiff v. BOW PLUMBING GROUP, INC., a Canadian
Corporation, Case No. 2:21-cv-00025-ECM-KFP (M.D. Ala., Jan. 13,
2021) is a class action brought on behalf of the Plaintiff and all
persons similarly situated property owners, seeking relief to
remedy Defendant's breach of express warranty, breach of implied
warranty, violations of various states' consumer protection
statutes, negligence, strict liability, and, alternatively, unjust
enrichment.
The complaint alleges that the Defendant manufactured and/or
distributed defective cross-linked polyethylene plumbing tubes
causing premature failure, leakage, and damage to the Plaintiffs
and the Class' homes.
BPG sells various plumbing products including PEX Tubing, PEX
Fittings, PEX Clamps and other plumbing accessories.[BN]
The Plaintiff is represented by:
Kirby D. Farris, Esq.
FARRIS, RILEY & PITT, LLP
1700 Financial Center
505 20th Street North
Birmingham, AL 35203
Telephone: (205)324-1212
Facsimile: (205)324-1255
E-mail: kfarris@frplegal.com
BRINKER INTERNATIONAL: Class Certification Hearing Set for Feb. 25
------------------------------------------------------------------
Brinker International, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on January 27, 2021, for the
quarterly period ended December 23, 2020, that the class
certification hearing in the putative class action suit entitled,
In re: Brinker Data Incident Litigation, Case No.
18-cv-00686-TJC-MCR, is set on February 25, 2021.
In fiscal 2018, the Company discovered malware at certain Chili's
restaurants that may have resulted in unauthorized access or
acquisition of customer payment card data.
The Company was named as a defendant in a putative class action
lawsuit in the United States District Court for the Middle District
of Florida styled In re: Brinker Data Incident Litigation, Case No.
18-cv-00686-TJC-MCR relating to the cybersecurity incident
described above.
In the Litigation, plaintiffs assert various claims stemming from
the cybersecurity incident at the Company's Chili's restaurants
involving customer payment card information and seek monetary
damages in excess of $5.0 million, injunctive and declaratory
relief, and attorney's fees and costs.
Briefing on Plaintiffs' motion for class certification is complete.
A hearing on Plaintiffs' motion is scheduled for February 25, 2021.
Brinker filed a motion to exclude Plaintiffs' damages expert.
Briefing on that is also complete and the parties await the court's
ruling. Mediation was held on November 18, 2020 but was
unsuccessful.
Brinker said, "We believe we have defenses and intend to continue
defending the Litigation. As such, as of December 23, 2020, we have
concluded that a loss, or range of loss, from this matter is not
determinable, therefore, we have not recorded a liability related
to the Litigation. We will continue to evaluate this matter based
on new information as it becomes available."
Brinker International, Inc., together with its subsidiaries, owns,
develops, operates, and franchises casual dining restaurants in the
United States and internationally. As of June 27, 2018, it owned,
operated, or franchised 1,686 restaurants comprising 997
company-owned restaurants and 689 franchised restaurants under the
Chili's Grill & Bar and Maggiano's Little Italy brand names. The
company was founded in 1975 and is based in Dallas, Texas.
BRISTOL BAY: Class Status Related Bids Must be Filed by Sept. 20
----------------------------------------------------------------
In the class action lawsuit captioned as Abucar Nunow ABIKAR,
Barkadle Sheikh Muhamed AWMAGAN, Arab Mursal DEH, Majuma MADENDE,
Osman Musa MOHAMED, Osman Musa MUGANGA, Rukia MUSA, and Fatuma
SOMOW, on behalf of themselves and all others similarly situated,
v. BRISTOL BAY NATIVE CORPORATION, et al., Case No.
3:18-cv-01700-JLS-AGS (S.D. Cal.), the Hon. Judge Andrew Schopler
entered a scheduling order regulating discovery and other pretrial
proceedings as follows:
1. The Court defers setting a deadline for any motion to join
other parties, to amend the pleadings, or to file
additional pleadings, until parties have briefed the
issue.
2. Any motion for class certification must be filed by
September 20, 2021.
3. Discovery will be in phases. Phase one includes fact and
expert discovery necessary to support or oppose class
certification. Phase one discovery must be completed by
August 20, 2021. "Completed" means that all discovery
under Rules 30-36 of the Federal Rules of Civil Procedure,
and discovery subpoenas under Rule 45, must be initiated a
sufficient period of time in advance of the cut-off date,
so that it may be completed by the cut-off date, taking
into account the times for service, notice and response as
set forth in the Federal Rules of Civil Procedure. Counsel
shall promptly and in good faith meet and confer with
regard to all discovery disputes in compliance with Local
Rule 26.1(a). The Court expects counsel to make every
effort to resolve all disputes without court intervention
through the meet and confer process. If the parties reach
an impasse on any discovery issue, counsel shall file an
appropriate motion within the time limit and procedures
outlined in the undersigned magistrate judge's chambers
rules. A failure to comply in this regard will result in a
waiver of a party’s discovery issue. Absent an order of
the court, no stipulation continuing or altering this
requirement will be recognized by the court.
Bristol Bay is one of thirteen Alaska Native Regional Corporations
created under the Alaska Native Claims Settlement Act of 1971 in
settlement of aboriginal land claims.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/2Lt5FAw at no extra charge.[CC]
BROADWAY FRUIT: Faces Larios-Gonzalez Suit Over Unpaid Wages
------------------------------------------------------------
ADAN LARIOS-GONZALEZ, On Behalf of Himself And All Others Similarly
Situated v. BROADWAY FRUIT MARKET LLC, CHANG DONG KIM, JONATHAN KIM
and KABIR ABDULLAH, Case No. 1:21-cv-00775 (S.D.N.Y., Jan. 28,
2021) is a civil action for damages and equitable relief based upon
the Defendants' alleged flagrant and willful violations of
Plaintiffs' rights guaranteed to him by the minimum wage provisions
of the New York Labor Law and the overtime provisions of the Fair
Labor Standards Act.
Throughout Plaintiff's employment, the Defendants allegedly
required the Plaintiff to work, and Plaintiff did work, more than
40 hours per week. However, the Defendants failed to pay Plaintiff
at the minimum wage or overtime rate of pay of one and one-half
times his regular rate of pay for each hour that Plaintiff worked
per week in excess of 40, as the FLSA and the NYLL require.
Lastly, the Defendants failed to furnish the Plaintiff with
accurate and/or any wage statements on each payday as the NYLL
requires or provide the Plaintiff with a wage notice containing the
criteria enumerated under the NYLL, the suit says.
The Defendants own and operate a food market.[BN]
The Plaintiff is represented by:
Amit Kumar, Esq.
LAW OFFICES OF WILLIAM CAFARO
108 West 39th Street, Suite 602
New York, NY 10018
Telephone: (212) 583-7400
E-mail: akumar@cafaroesq.com
CBE GROUP: Pistone Files FDCPA Suit in District of New Jersey
-------------------------------------------------------------
A class action lawsuit has been filed against The CBE Group, Inc.
The case is captioned as Renee Pistone, on behalf of herself and
all others similarly situated v. The CBE Group, Inc., Case No.
3:21-cv-00766-MAS-DEA (D.N.J., January 14, 2021).
The case is brought over alleged violation of the Fair Debt
Collection Practices Act and is assigned to Judge Michael A.
Shipp.
The CBE Group, Inc. provides debt recovery services. [BN]
The Plaintiff is represented by:
Lawrence C. Hersh, Esq.
17 Sylvan Street, Suite 102B
Rutherford, NJ 07070
Telephone: (201) 507-6300
E-mail: lh@hershlegal.com
CBS CORP: Claims in Stockholder Class & Derivative Suits Narrowed
-----------------------------------------------------------------
In the case, IN RE CBS CORPORATION STOCKHOLDER CLASS ACTION AND
DERIVATIVE LITIGATION, Consolidated C.A. No. 2020-0111-JRS (Del.
Ch.), Judge Joseph R. Slights, III, of the Court of Chancery of
Delaware granted in part and denied in part the Defendants' Motions
to Dismiss.
The Court recently considered the story of the well-publicized
merger of Viacom, Inc. and CBS Corp., two quintessentially American
companies, as told from the perspective of displeased Viacom
stockholders. The story was presented in a putative class action
complaint where Viacom stockholders alleged the Viacom/CBS merger
was the product of actionable breaches of fiduciary duty by Viacom
fiduciaries and patently unfair. The Court found the allegations
were well-pled and denied motions to dismiss the complaint.
In a rare, but not unheard of twist, the Court must consider the
same story, the story of the Viacom/CBS merger, but this time as
told from the perspective of displeased CBS stockholders who allege
the merger was unfair to them and the product of actionable
breaches of fiduciary duty by CBS fiduciaries. The CBS and Viacom
stockholders offer very different takes on sensational story.
As pled in a complaint comprising 267 paragraphs, the Plaintiffs'
take is this: After Shari Redstone consolidated control of both CBS
and Viacom under her holding companies, defined collectively below
as the NAI Parties, she thrice attempted to merge Viacom and CBS
and twice was turned back by the CBS board of directors. The third
try proved to be the charm, resulting in the Merger that spawned
nominal Defendant, ViacomCBS.
From the Plaintiffs' perspective, it is necessary to understand the
history of Ms. Redstone's failed efforts to cause Viacom and CBS to
merge in order fully to appreciate the breaches of fiduciary duties
within CBS that led to the consummated Merger. By the time Ms.
Redstone first attempted to cause a Viacom/CBS merger in September
2016, she had already packed the Viacom board of directors with
loyalists. The CBS Board, still independent at the time, opposed
the merger for several reasons, including that the NAI Parties
would not agree to allow CBS' minority stockholders to approve the
merger, would not consider any merger partner other than Viacom and
would not agree to allow a combined Viacom/CBS to be managed free
of the NAI Parties' control. Most troubling to the CBS Board,
however, was that the NAI Parties were attempting to thrust a
floundering Viacom upon a thriving CBS in hopes that the
combination would enhance the value of the NAI Parties as
controlling stockholders of both companies. With the CBS Board
unwilling to negotiate, Ms. Redstone's first attempt to cause a
merger failed.
Ms. Redstone was distressed but not deterred. Behind the scenes,
she shared with confidantes her concern that Viacom might not make
it as a going concern without a Viacom/CBS combination. In a more
public display of frustration, she threatened the CBS Board with
retribution and pledged "the merger would get done even if she had
to use a different process." She then emailed a trusted Viacom
director seeking recommendations for CBS board nominees whose
loyalty to NAI she can trust.
In January 2018, advisors warned Ms. Redstone that, absent a
Viacom/CBS merger, the NAI Parties may be left with a portfolio of
assets burdened by Viacom's underperformance and unattractive to
suitors. Less than one month later, in February 2018, Ms. Redstone
returned to the boards of the two companies she controlled with
directions that they again form special committees to consider a
merger. And, once again, she made clear that the NAI Parties would
not agree to consider alternative transactions or to subject a
Viacom/CBS merger to a majority-of-the-minority vote condition.
This time the CBS Board, through its special committee, determined
that Ms. Redstone was likely to force a merger over the CBS Board's
objection and that the NAI Parties "presented a significant threat
of irreparable and irreversible harm to the Company and its
stockholders" because they were seeking "to combine CBS and Viacom
regardless of the strategic and economic merits of the
transaction." To protect CBS stockholders, the independent members
of the CBS Board took measures the Court has previously described
as "extraordinary"; they devised a special dividend that would
dilute the NAI Parties' voting control of CBS from 80% to 17%, and
then filed preemptive litigation against the NAI Parties in the
Court where they sought a declaration that the dividend was valid
and asserted breach of fiduciary duty claims against the NAI
Parties. CBS executives, including then-COO Joseph Ianniello,
supported the independent board's effort to oust their controller.
In riposte, the NAI Parties countersued alleging the special
dividend was unlawful as a matter of statute and the product of
breaches of fiduciary duty by members of the CBS Board who were
acting for the sake of entrenchment. The litigation that followed
was expedited and intense.
That litigation ultimately settled in September 2018, resulting in
the resignation of seven CBS directors and the addition of six new
directors hand-picked by Ms. Redstone. Key governance committees
were restructured to include Redstone-backed candidates. Ianniello
was named interim CEO and President after he assured Ms. Redstone
that he now understood the wisdom of a Viacom/CBS combination. But
there was a problem: to achieve a settlement and cement her control
over the CBS Board, Ms. Redstone had to agree that, in the two
years following the settlement, the NAI Parties would not "directly
or indirectly" propose a Viacom/CBS merger "unless at least
two-thirds of the directors who were not affiliated with the NAI
Parties proposed one or asked for a proposal."
Notwithstanding the contractual commitment, just four months after
the 2018 Settlement, Ms. Redstone was back at it again attempting
to promote a Viacom/CBS merger with the boards of both companies.
At CBS, she cajoled the newly constituted CBS Board to form a
special committee to evaluate the merger while sidelining
carry-over directors who formerly opposed her. She attended
meetings of CBS Board committees that, per the 2018 Settlement,
should have met free of her influence. And she worked to impose her
preferred terms on the deal with the aid of her new ally,
Ianniello, whom she incentivized to do her bidding with a rich pre-
and post-merger compensation package.
The newly installed CBS directors acceded to Ms. Redstone's will at
every turn. At her direction, they approved Ianniello's amended
employment agreement, increasing his guaranteed compensation
despite knowing CBS would receive nothing by way of services in
return. They did nothing to seek protection for CBS' minority
stockholders, such pushing for a majority-of-the-minority vote
condition or insisting upon a CBS-led management team for the
combined company, even though past CBS boards had deemed such
protections to be sine qua non for a Viacom/CBS combination. The
result -- multiple breaches of fiduciary duty that facilitated a
merger that was beneficial to the NAI Parties, as Viacom and CBS'
controlling stockholders, but demonstrably unfair to the CBS
minority stockholders.
With the benefit of documents secured after prevailing in expedited
Section 220 litigation against CBS prior to the Merger, the
Plaintiffs bring breach of fiduciary duty claims against the NAI
Parties, members of the CBS Board and Ianniello ("Defendants") for
their role in consummating the Merger, disseminating a misleading
proxy statement and approving Ianniello's compensation agreement.
The Complaint comprises six counts. Count I alleges a claim for
breach of fiduciary duty derivatively on behalf of ViacomCBS
against Ms. Redstone, NAI and SMR Trust for disloyally engineering
the Merger to bail out Viacom, in violation of the 2018 Settlement.
Count II asserts claims for breach of fiduciary duty derivatively
on behalf of ViacomCBS against the Director Defendants and
Ianniello. Count III brings individual and class claims against
the NAI Parties for breaching their fiduciary duty of loyalty by
forcing former CBS Class B stockholders to enter into a Merger that
effectively caused CBS stockholders to transfer (or sell) their CBS
stock in exchange for stock in a substantively new and less
valuable company, resulting in both diluted ownership stakes and
diluted value.
Count IV asserts an individual and class claim against Ms.
Redstone, the Director Defendants and Ianniello for breaching their
fiduciary duties of loyalty and care. Count V asserts a waste
claim against the CBS Directors, Klieger, Zelnick and Ms. Redstone
derivatively on behalf of ViacomCBS for increasing Ianniello's
compensation through amendments to his employment agreement for no
rational business justification or purpose. Finally, Count VI
alleges derivatively on behalf of ViacomCBS a claim for unjust
enrichment against Ianniello, who accepted a substantially
increased severance payment from CBS (now ViacomCBS) as payment for
his support of a patently unfair Merger.
On June 5, 2020, the NAI Parties, the CBS Committee together with
Zelnick, ViacomCBS, Klieger and Ianniello all separately moved to
dismiss the Complaint. They argue that the Plaintiffs have
asserted derivative claims belonging to CBS and yet have failed to
plead that demand on the CBS Board would have been futile. As for
the viability of the claims, they maintain that the Plaintiffs'
breach of fiduciary duty claims related to the Merger must be
evaluated under the deferential business judgment rule because
Plaintiffs have failed to well plead that the NAI Parties, as
controller, derived any benefit from the Merger not shared with
CBS' other stockholders and have failed to well plead that the CBS
Board was otherwise conflicted. Even if entire fairness review
applies, however, the Defendants argue that the Plaintiffs fail to
state a claim that the Merger was unfair or, as to members of the
CBS Board, to plead non-exculpated claims upon which relief can be
granted.
In large measure, Judge Slights holds that the Defendants' motions
to dismiss must be denied. At the threshold, he dismisses the
Plaintiffs' disclosure claim, where they allege that the CBS
Board's misleading disclosures caused CBS stockholders to hold
rather than sell their stock in advance of the Merger, because
so-called "holder" claims cannot be brought as class claims as a
matter of Delaware law. As to the individual holder claim stated
by Plaintiffs, even if he assumes (without deciding) that Delaware
recognizes such claims, the Plaintiffs have not adequately pled the
elements of the claim.
Beyond the holder claim, however, Judge Slights finds that the
Defendants' motions to dismiss must be denied. Even assuming the
Plaintiffs have pled derivative rather than direct claims, a point
they dispute, he says the Plaintiffs have adequately pled demand
futility because a majority of the members of the CBS Board that
would have considered a demand face a substantial likelihood of
liability for the non-exculpated breach of their fiduciary duty of
loyalty in negotiating the Merger and facilitating Ms. Redstone's
quid pro quo with Ianniello. Because the pleading standard under
Chancery Rule 23.1 is more demanding than the standard imposed by
Chancery Rule 12(b)(6), it follows that the motion to dismiss the
claims against these same CBS Board members for failure to state
viable claims must also be denied. As for the claims relating to
Ianniello's Merger-related compensation package, the Plaintiffs
have well pled that the then-extant CBS Board and Iannielo breached
their fiduciary duties by approving and accepting, respectively,
the compensation for the purpose of furthering the controller's
interests to the detriment of CBS and its minority stockholders.
The Complaint also well pleads a breach of fiduciary duty by the
NAI Parties, Judge Slights holds. He says while Delaware law
provides controllers a pathway to attain deferential pleading-stage
business judgment review of a transaction through the MFW
framework, the NAI Parties expressly declined to condition the
Merger on a majority-of-the-minority vote. And the Plaintiffs have
well pled the NAI Parties were conflicted controllers by virtue of
standing on both sides of the Merger and extracting from the Merger
a benefit not shared ratably by CBS Class B stockholders (the
enhancement of value within the NAI Parties by saving the failing
Viacom through the Merger). Because the Plaintiffs have pled facts
that allow a reasonable inference the Merger was not entirely fair
to CBS's minority stockholders, the motion to dismiss the claims
against the NAI Parties must also be denied.
Based on the foregoing, Judge Slights denied the Defendants'
Motions to Dismiss as to Counts I, II, III, V and VI. He granted
the Defendants' Motions to Dismiss as to Count IV's disclosure
claim, but denied as to the balance of the claims asserted in Count
IV.
A full-text copy of the Court's Jan. 27, 2021 Decision/Order is
available at https://tinyurl.com/cjoxf2sl from Leagle.com.
Michael Hanrahan, Esquire -- mhanrahan@prickett.com -- Corinne
Elise Amato, Esquire -- ceamato@prickett.com -- Eric J. Juray
Esquire -- ejjuray@prickett.com -- and Xi (Elizabeth) Wang, Esquire
-- ewang@prickett.com -- of Prickett, Jones & Elliott, P.A.,
Wilmington, Delaware; Michael J. Barry, Esquire, Christine M.
Mackintosh, Esquire, John C. Kairis Esquire, and Rebecca A. Musarra
Esquire, of Grant & Eisenhofer, P.A., in Wilmington, Delaware; and
Eric L. Zagar Esquire, and Grant D. Goodhart, III, Esquire, of
Kessler Topaz Meltzer & Check, LLC, in Radnor, Pennsylvania,
Attorneys for Plaintiffs.
Jeremy D. Anderson Esquire -- janderson@fr.com -- of Fish &
Richardson P.C., Wilmington, Delaware; and Gustavo F. Bruckner
Esquire -- gfbruckner@pomlaw.com -- and Samuel J. Adams Esquire --
sjadams@pomlaw.com -- of Pomerantz LLP, in New York City, Attorneys
for Executive Committee of Additional Counsel for Plaintiffs.
Matthew E. Fischer, Esquire -- mfischer@potteranderson.com --
Michael A. Pittenger, Esquire -- mpittenger@potteranderson.com --
Christopher N. Kelly, Esquire -- ckelly@potteranderson.com -- J.
Matthew Belger, Esquire, Jacqueline A. Rogers Esquire, and Callan
R. Jackson Esquire, of Potter Anderson & Corroon LLP, in
Wilmington, Delaware, and Victor L. Hou, Esquire, Rahul Mukhi
Esquire, and Mark E. McDonald Esquire, of Cleary Gottlieb Steen &
Hamilton LLP, in New York City, Attorneys for Defendants National
Amusements, Inc., Sumner M. Redstone National Amusements Trust, and
Shari E. Redstone, also Attorneys for Defendant Robert N. Klieger.
Daniel A. Mason, Esquire -- dmason@paulweiss.com -- of Paul, Weiss,
Rifkind, Wharton & Garrison LLP, Wilmington, Delaware and Brad S.
Karp, Esquire -- bkarp@paulweiss.com -- Bruce Birenboim, Esquire --
bbirenboim@paulweiss.com -- Jaren Janghorbani Esquire, and Alexia
D. Korberg Esquire, of Paul, Weiss, Rifkind, Wharton & Garrison
LLP, in New York City, Attorneys for Defendants Candace K.
Beinecke, Barbara M. Byrne, Gary L. Countryman, Brian Goldner,
Linda M. Griego, Martha L. Minow, Susan Schuman, Frederick O.
Terrell and Strauss Zelnick.
Robert A. Penza Esquire -- rpenza@polsinelli.com -- and Christina
B. Vavala Esquire -- cvavala@polsinelli.com -- of Polsinelli PC, in
Wilmington, Delaware, and Kevin T. Abikoff, Esquire, Benjamin
Britz, Esquire, Stephen R. Halpin III Esquire, and Robby S. Naoufal
Esquire, of Hughes Hubbard & Reed LLP, in Washington, D.C.,
Attorneys for Defendant Joseph Ianniello.
Elena C. Norman Esquire -- enorman@ycst.com -- and Daniel M.
Kirshenbaum Esquire -- dkirshenbaum@ycst.com -- of Young Conaway
Stargatt & Taylor, LLP, Wilmington, Delaware and Jonathan K.
Youngwood, Esquire, Linton Mann III Esquire, and Sarah L.
Eichenberger Esquire, of Simpson Thacher & Bartlett LLP, in New
York City, Attorneys for Nominal Defendant ViacomCBS Inc.
CELSIUS HOLDINGS: Ruiz Files Mislabeling Suit Over Energy Drink
---------------------------------------------------------------
Jimy Ruiz on behalf of himself and all others similarly situated,
Plaintiff, v. Celsius Holdings Inc., Defendant, Case No.
21-cv-00128, (S.D. Cal., January 22, 2021), seeks redress arising
from deceptive practices associated with the advertising, labeling
and sale of its fitness beverages in breach of express warranty and
in violation of California's Unfair Competition Law, California's
Business and Professions Code and Consumers Legal Remedies Act.
Celsius manufactures, markets, advertises, and sells a line of
fitness beverages that are touted as "healthy energy" drinks with
"no preservatives artificial colors or flavors." The beverages are
based on a proprietary formulation that provides a number of
vitamins, minerals and other healthful ingredients such as guarana,
ginger root and green tea. However, Ruiz contests that said product
derives its taste from a lab synthesized ingredient. [BN]
Plaintiff is represented by:
Michael D. Braun, Esq.
KUZYK LAW, LLP
1999 Avenue of the Stars, Ste. 1100
Los Angeles, CA 90067
Telephone: (213) 401-4100
Facsimile: (213) 401-0311
Email: mdb@kuzykclassactions.com
CENTRAL CALIFORNIA: Court Seeks More Info on Urena's Counsel Costs
------------------------------------------------------------------
Magistrate Judge Erica P. Grosjean of the U.S. District Court for
the Eastern District of California seeks supplemental information
concerning costs requested for the Plaintiff's counsel in the
lawsuit entitled JOSE URENA, an individual, on behalf of himself
and others similarly situated, Plaintiff v. CENTRAL CALIFORNIA
ALMOND GROWERS ASSN., Defendant, Case No. 1:18-cv-00527-NONE-EPG
(E.D. Cal.).
On January 8, 2021, the Plaintiff filed a motion for final approval
of class-action settlement. A hearing was set for the motion on
February 5, 2021. The motion seeks, inter alia, attorneys' fees and
costs. The Defendant has not filed an opposition to the motion.
After its initial review, the Court believes that certain costs
requested for reimbursement by the Plaintiff's counsel are
insufficiently supported. The Court, therefore, will grant the
Plaintiff's counsel an opportunity to provide supplemental
information regarding certain costs.
First, the Plaintiff's counsel seeks $1,476.30 for reimbursement to
"Econ One," with the task code of "COSTS," and description:
"INV#16342 Re Central CA Almond Growers." The Court is unsure what
services were rendered. In the event Econ One rendered expert
witness services, in order for the Court to award reimbursement for
expert witness fees, the Court must find that the expert testimony
submitted was crucial or indispensable to the litigation at hand.
Although the Plaintiff's counsel declared that all of its costs
were necessarily incurred in the course of this litigation, the
Court finds that additional support may be useful.
Second, the Plaintiff's counsel seeks $3,335.84 in reimbursement
for Westlaw research fees -- nearly one percent of the settlement
amount. The legal research costs the Plaintiff's counsel seeks
appear to be on a per-expense basis, as they include six different
charges of six different amounts. However, the Plaintiff's counsel
does not include a statement showing that doing so is the
prevailing practice in the local legal community. The Court notes
that some judges in California courts have found that per-search
charges are not prevailing practice in the district, citing
Resilient Floor Covering Pension Fund v. M & M Installation, Inc.,
No. C08-5561 BZ, 2012 WL 1813395, at *4 (N.D. Cal. May 17, 2012).
In addition, it is not entirely clear from the Plaintiff's
counsel's declaration whether the Plaintiff's firm paid these exact
charges to Westlaw or whether they in fact pay a flat monthly rate
and somehow apportion those costs among their cases, Judge Grosjean
says.
Third, some of the costs are confusing. For instance, one cost, for
$220, is under the task code "copies" but appears to be for
reimbursement of a hotel. Others are unclear. For instance, $88.60
is given for "costs" to "On-call" with the description "service of
S&C job completion date: 4/24/18 INV#69347."
Accordingly, the Plaintiff is directed to file supplemental
information concerning its costs no later than February 19, 2021.
A full-text copy of the Court's Order dated Jan. 28, 2021, is
available at https://tinyurl.com/18f97y5r from Leagle.com.
CHAAC PIZZA: Asks Court to Stay Response Date to 'Send Notice' Bid
------------------------------------------------------------------
In the class action lawsuit captioned as ROBERT MULLEN, v. CHAAC
PIZZA MIDWEST, LLC, et al., Case No. 1:20-cv-00893-MWM (S.D. Ohio),
the Defendants CFL Pizza, LLC and Andy Rosen ask the Court to enter
an order staying their deadline to respond to Plaintiff's Motion to
Send Notice until the Arbitration Motion is decided.
Should a response to Plaintiff's Motion be required, the Defendants
request that the Court set a response deadline of 30 days after the
decision on the Arbitration Motion.
A copy of the Defendants' motion dated Jan. 28, 2020 is available
from PacerMonitor.com at http://bit.ly/39TRJszat no extra
charge.[CC]
The Defendants are represented by:
M. Scott McIntyre, Esq.
BAKER & HOSTETLER LLP
312 Walnut Street, Suite 3200
Cincinnati, OH 45202
E-mail: smcintyre@bakerlaw.com
- and -
James M. Coleman, Esq.
Jason D. Friedman, Esq.
CONSTANGY, BROOKS, SMITH & PROPHETE, LLP
12500 Fair Lakes Circle, Suite 300
Fairfax, VA 22033
Telephone: (571) 522-6100
Facsimile: (571) 522-6101
E-mail: jcoleman@constangy.com
jfriedman@constangy.com
CHARLES SCHWAB: Stipulation for Class Status Date Extension OK'd
----------------------------------------------------------------
In the class action lawsuit captioned as ROBERT CRAGO, Individually
And On Behalf Of All Others Similarly Situated, v. CHARLES SCHWAB &
CO., INC., and THE CHARLES SCHWAB CORPORATION, Case No.
3:16-cv-03938-RS (N.D. Cal.), the Hon. Judge Richard Seeborg
entered an order granting parties' joint stipulation for extension
of class certification schedule as follows:
Event Deadline
The Plaintiffs' rebuttal report(s) March 12, 2021
concerning class certification
(including any backup materials)
Expert depositions concerning April 6-15, 2021
class certification:
The Plaintiffs' class certification April 30, 2021
motion and Daubert challenges
The Defendants' class certification June 30, 2021
opposition, Daubert challenges, and
Daubert opposition:
The Plaintiffs' reply brief, July 19, 2021
opposition to Daubert challenges,
and reply to Daubert challenges of
Defendants' expert(s):
The Defendants' reply to Daubert August 16, 2021
challenges of Plaintiffs' experts:
Class Certification Hearing: September 23, 2021
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/3pPZHIR at no extra charge.[CC]
Attorneys for the Lead Plaintiffs and Co-Lead Counsel for the
Class, are:
Lionel Z. Glancy, Esq.
Jonathan Rotter, Esq.
Garth Spencer, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
jrotter@glancylaw.com
gspencer@glancylaw.com
- and -
Lawrence P. Eagel, Esq.
David J. Stone, Esq.
Melissa A. Fortunato, Esq.
BRAGAR EAGEL & SQUIRE, P.C.
810 Seventh Avenue, Suite 620
New York, NY 10019
Telephone: (212) 308-5858
Facsimile: (212) 486-0462
E-mail: eagel(@bespc.com
stone@bespc.com
fortunato@bespc.com
- and -
Eduard Korsinsky, Esq.
Nicholas I. Porritt, Esq.
LEVI & KORSINSKY, LLP
55 Broadway, 10th Floor
New York, NY 10006
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
E-mail: nporritt@zlk.com
The Defendants are represented by:
Gilbert R. Serota, Esq.
ARNOLD & PORTER KAYE SCHOLER LLP
Three Embarcadero Center, 10th Floor
San Francisco, CA 94111-4024
Telephone: (415) 471-3170
Facsimile: (415) 471-3400
E-mail: gilbert.serota@arnold.porter.com
- and -
Alex J. Kaplan, Esq.
Jon W. Muenz, Esq.
SIDLEY AUSTIN LLP
10 787 Seventh Avenue
New York, NY 10019
Telephone: (212) 839-5300
Facsimile: (212) 839-5599
E-mail: ajkaplan@sidley.com
jmuenz@sidley
CHARTER COMMUNICATIONS: Can Compel Arbitration in Sonico Suit
-------------------------------------------------------------
In the case, JUSTIN M. SONICO, individually and on behalf of all
other persons similarly situated, Plaintiff v. CHARTER
COMMUNICATIONS, LLC, et al., Defendants, Case No.
19-cv-01842-BAS-LL (S.D. Cal.), Judge Cynthia Bashant of the U.S.
District Court for the Southern District of California granted the
Defendants' Renewed Motion to Compel Arbitration and Stay
Proceedings.
The Plaintiff filed the putative class action in state court
alleging violations of various California wage-and-hour laws, which
was then removed to the Court on Sept. 25, 2019. Defendants
Charter Communications, LLC and Charter Communications, Inc.
initially moved to compel arbitration because the Plaintiff agreed
to arbitrate the underlying claims when he was hired by Time Warner
Cable ("TWC") in 2014, which later merged with Charter.
The Plaintiff opposed on the basis that he opted out of a
subsequent arbitration agreement ("Solution Channel Agreement" or
"SCA") presented to employees after TWC merged with Charter in
2016. He argued that he entered into the SCA before opting out and
it therefore superseded the first arbitration agreement, while the
Defendants maintained that his opt-out left the first agreement in
effect.
Because the SCA and opt-out notice specific to Plaintiff were not
before the Court, leaving open questions about the agreement's
formation, the Court ordered the parties to engage in limited
discovery and permitted Defendants to renew their motion within
five days of the conclusion of the discovery process. The
Defendants' Renewed Motion attaches the Solution Channel Program
Guidelines, the SCA, and the Plaintiff's Electronic Opt-Out
Acknowledgement.
The primary dispute centers around whether any arbitration
agreement covers the underlying dispute between the parties. The
Defendants argue that the Plaintiff's opt-out was effectively a
rejection of the offer made in the SCA, leaving the JAMS Agreement
as the existing arbitration contract between the parties.
In opposition, the Plaintiff maintains that the language of the SCA
itself, the Guidelines, and the Plaintiff's personal understanding
support that the SCA was operable "upon conveyance to the employee.
Thus, the Plaintiff argues that the SCA was effective as of Oct.
6, 2017, superseded the JAMS Agreement on this date, and then was
subsequently rendered non-binding on the Plaintiff when he opted
out on Oct. 18, 2017, leaving no arbitration agreement between the
parties.
Judge Bashant finds that the Plaintiff did not enter into the SCA
such that it supersedes the JAMS Agreement. The Plaintiff's
argument that he entered into the SCA before opting out fails. He
did not mutually assent to the SCA upon receipt of the agreement,
and he later affirmatively rejected the SCA when he timely opted
out. For this reason, the Plaintiff did not enter into the SCA
such that it supersedes the JAMS Agreement. Having thus determined
that the JAMS Agreement controls, the Judge now turns to the
Plaintiff's unconscionability arguments regarding that contract.
Judge Bashant finds that the JAMS Agreement is not procedurally or
substantively unconscionable and therefore is enforceable. The
relevant provision in the JAMS Agreement states: "In the event a
dispute between you and TWC is not arbitrable under this Agreement
for any reason and is pursued in court, you and TWC agree to waive
any right to a jury trial that might otherwise exist." In other
words, this clause requires the Plaintiff to waive his right to a
jury trial if he raises an employment issue that cannot proceed to
arbitration. It is therefore a predispute jury trial waiver
prohibited by California law. The provision is therefore
substantively unconscionable.
Because she finds that the JAMS Agreement is not permeated with
unconscionability, Judge Bashant holds that severing the jury trial
waiver from the contract under California Civil Code Section
1670.5(a) is appropriate. She thus ultimately rejects the
Plaintiff's unconscionability defense to enforcement of the JAMS
Agreement, and compels arbitration upon severing the provision from
the contract.
In light of the foregoing, Judge Bashant granted the Defendant's
Renewed Motion to Compel Arbitration under the JAMS Agreement.
Specifically, she severed the predispute jury trial waiver from the
JAMS Agreement discussed. She also ordered the parties to proceed
to arbitration in California in the manner provided for in the JAMS
Agreement. In addition, the action is stayed. Last, Judge Bashant
directed the Clerk of Court to admnistratively close the case. The
decision to administratively close the case pending resolution of
the arbitration does not have any jurisdictional effect.
A full-text copy of the Court's Jan. 27, 2021 Order is available at
https://tinyurl.com/5wqlk7iu from Leagle.com.
CHICK-FIL-A INC: Colorado Court Refuses to Remand Garitano Suit
---------------------------------------------------------------
The U.S. District Court for the District of Colorado denies the
Plaintiff's Motion to Remand in the lawsuit entitled GABRIELLA
GARITANO, individually and on behalf of all similarly situated
persons, Plaintiff v. CHICK-FIL-A, INC., a Georgia corporation,
Defendant, Case No. 20-cv-03631-PAB-KMT (D. Colo.).
The Plaintiff filed the class action complaint on October 25, 2020,
in the District Court for El Paso County, Colorado, and served
defendant on October 30, 2020. Among other things, the Plaintiff
alleges that the Defendant, who employed her, did not provide her
and other non-exempt employees the required 10-minute rest period
for every four hours of work and 30-minute meal break for a shift
exceeding five hours, in violation of the Colorado Minimum Wage Act
and the Colorado Wage Claim Act.
The Defendant filed an unopposed motion for an extension of time to
respond to the Plaintiff's complaint by December 11, 2020, which
the Court granted. That day, the Defendant removed the action,
claiming that the Court has jurisdiction based on the Class Action
Fairness Act ("CAFA"). CAFA provides removal jurisdiction when the
amount in controversy exceeds $5 million and the parties are
minimally diverse.
The Plaintiff argues that the Defendant's removal was untimely
because, under 28 U.S.C. Section 1446(b)(1), a defendant must
remove a case to federal court within 30 days after service of the
complaint (citing Hammond v. Stamps.com, Inc., 844 F.3d 909, 913
(10th Cir. 2016)). The Plaintiff claims that this 30-day rule
applies to actions brought under CAFA. Therefore, because the
Defendant filed its notice of removal 42 days after service, the
Plaintiff argues removal was not timely and the matter should be
remanded.
Chief District Judge Philip A. Brimmer notes that in general, the
notice of removal of a civil action or proceeding will be filed
within 30 days after the receipt by the defendant, through service
or otherwise, of a copy of the initial pleading setting forth the
claim for relief upon which such action or proceeding is based, 28
U.S.C. Section 1446(b)(1). Courts in this circuit have held that
the 30-day removal period applies to cases removed under CAFA.
Nevertheless, there is an "escape hatch" to the 30-day deadline for
removal, Judge Brimmer says, citing Paros Props., LLC v. Colo. Cas.
Ins. Co., 835 F.3d 1264, 1268 (10th Cir. 2016). Even though a case
may not be initially removable, "a notice of removal may be filed
within 30 days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other
paper from which it may first be ascertained that the case is one
which is or has become removable."
Invoking the "escape hatch," the Defendant argues that, because the
Plaintiff's state court complaint contained no information
whatsoever regarding the amount of damages she was seeking either
on her own behalf or on behalf of the putative class, it was not
clear that the case was removable until the Defendant understood,
after calls with the Plaintiff's counsel on November 11 and 20,
that she intends "to pursue a broad class," alleging that the
Defendant is the actual employer of all hourly employees at all
Chick-fil-A brand restaurants in Colorado.
After these calls, the Defendant says it conducted an investigation
on its own initiative to determine whether removal might be proper.
It states that it had to consult its business records to determine
the number of hourly employees in Colorado and had to calculate the
amount in controversy. It insists that removal was proper outside
of the traditional 30-day period because the law is clear that a
defendant may choose to conduct its own investigation, and may
properly remove to federal court under CAFA when and if the
requirements for removal are satisfied.
In support of its argument that it is "not under any deadline to
remove," the Defendant cites, among other cases, Cutrone v.
Mortgage Elec. Registration Sys., 749 F.3d 137, 144-46 (2d Cir.
2014).
The Court agrees with the Defendant. "This circuit has been very
strict in assessing whether grounds for removal are ascertainable,"
citing Paros, 835 F.3d at 1269. In Paros, a non-CAFA case, the
Tenth Circuit explained that removal requires a specific allegation
that damages exceed the federal jurisdictional amount, for
instance, where the complaint alleges facts from which the
jurisdictional amount may be easily derived through arithmetic."
Therefore, the Judge holds, the 30-day clock did not begin to run
when the Plaintiff filed the complaint. Rather, where the complaint
does not reveal on its face that there is a sufficient basis for
jurisdiction under CAFA, it is appropriate for a defendant to
remove a case after it completes its own investigation (citing Roth
v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1123-24 (9th Cir.
2013)).
Judge Brimmer notes that CAFA's minimal diversity is apparent from
the Plaintiff's complaint. Thus, the only question is whether the
complaint provides clear, unequivocal notice that the amount in
controversy exceeds $5 million. The Plaintiff's complaint defines
the class as "all persons who worked as hourly employees for
defendant in Colorado within the statute of limitations," and
states that damages should be determined at trial.
The Plaintiff does not include any indication of how many employees
could be in this class or the amount that each employee is owed.
Without factual allegations upon which to clearly determine the
number of employees or the amount that each employee might claim,
the Plaintiff's complaint does no more than suggest that the right
to remove may exist, Judge Brimmer holds.
The Court finds that the initial pleading in the case did not
contain a clear and unequivocal basis for the Defendant to
ascertain removability and did not trigger the 30-day clock of
Section 1446(b)(1). Therefore, the Defendant's removal was not
untimely.
Hence, the Plaintiff's Motion for Remand is denied.
A full-text copy of the Court's Order dated Jan. 28, 2021, is
available at https://tinyurl.com/yun4xpxa from Leagle.com.
CINTAS CORP: Bid to Compel Arbitration in Hawkins ERISA Suit Denied
-------------------------------------------------------------------
In the case, RAYMOND HAWKINS and ROBIN LUNG, individually and on
behalf of all others similarly situated, Plaintiffs v. CINTAS
CORPORATIONS, et al., Defendant, Case No. 1:19-cv-1062 (S.D. Ohio),
Judge Timothy S. Black of the U.S. District Court for the Southern
District of Ohio, Western Division, denied the motion to compel
arbitration and stay proceedings filed by Defendants Cintas, Board
of Directors of Cintas, Scott D. Farmer, and the Investment Policy
Committee.
Plaintiffs Hawkins and Lung ("Participants") bring the action
pursuant to Section 409 and Section 502(a)(2) of the Employee
Retirement Income Security Act of 1974 ("ERISA"). The
Participants, both former Cintas employees, pursue the action
individually and on behalf of other similarly situated participants
in the Cintas Partners' Plan.
The Plan is a defined contribution retirement plan, established by
Cintas in 1991. Each participant in the Plan is provided an
individual account and the benefits derived for each participant
are based "solely upon the amount contributed to those individual
accounts."
The Participants contend that Cintas breached fiduciary duties of
loyalty and prudence by mismanaging and failing to investigate and
select better cost options for the Plan from December 13, 2013, to
the present. They also contend that Cintas failed to monitor the
decision-making of the Plan's committee groups and/or individual
fiduciaries.
Related to the motion to compel arbitration and stay proceedings,
the Participants' employment agreements contain arbitration
provisions.
The civil case is before the Court on the Defendants' motion to
compel arbitration and stay proceedings and supporting memorandum,
and the parties' responsive memoranda.
The Participants bring the action under ERISA Section 409 and
Section 502(a)(2), and contend the action is brought on behalf of
the Plan. Because the action is on behalf of the Plan, and there
is no arbitration agreement between the Plan and Cintas, the
Participants contend that the motion to compel should be denied.
Cintas responds that because the Plan is a defined contribution
plan with individual accounts, the Participants' claims are
inherently individualized. Because the claims are inherently
individualized, the Participants' Agreements mandating arbitration
govern the dispute and the Participants should be compelled to
individually arbitrate.
Judge Black finds that the relief sought by the Participants is to
benefit the Plan, not individual accounts. For example, the
Participants seek relief including "accounting for profits,
imposition of a constructive trust," restoring to the Plan profits
lost from the Defendants' breach of duties, and other forms of
equitable relief. Thus, the Participants are correct when
asserting the claims brought are alleged on behalf of the Plan.
Finding that Participants claims are brought on behalf of the Plan,
Judge Black must determine whether there is a valid agreement to
arbitrate between the Plan and Cintas. Cintas first suggests that
the Participants' Agreements evidence a valid agreement to
arbitrate between the parties. The Participants respond that the
individual employment agreement cannot bind the entire Plan to
arbitration. Alternatively, Cintas argues, as manager of the Plan,
the Plan consents to arbitration by filing the motion and/or Cintas
can modify Plan documents to require Plan claims to proceed to
arbitration.
Judge Black holds that the Participants' Agreements contain similar
provisions that "the rights and claims of Employee" will be
arbitrated. The provision is limited to the employee and does not
extend to nonentities, such as claims on behalf of the Plan.
Further, Cintas provides no evidence that a Plan document existed
binding the Plan to arbitration. Thus, there is no valid agreement
between the Plan and Cintas consenting to an arbitrable forum.
Finally, because there is no arbitration agreement between the Plan
and Cintas, Cintas' argument that the Plaintiffs should be
compelled to arbitrate individually fails. No party can be
compelled under the FAA to arbitrate on a class-wide or collective
basis unless it agrees to do so by contract.
Accordingly, finding that there is no valid agreement to arbitrate
between the Plan and Cintas, Judge Black denied Cintas' motion to
compel arbitration. Because there is no agreement, he need not
reach whether the Participants' claims are within the scope of any
purported agreement.
A full-text copy of the Court's Jan. 27, 2021 Order is available at
https://tinyurl.com/4qrzumvh from Leagle.com.
CLEAN HARBORS: Smith Files Employment Suit in Cal. State Court
--------------------------------------------------------------
A class action lawsuit has been filed against Clean Harbors
Environmental Services, Inc. The case is captioned as Alonzo Smith,
on behalf of all persons similarly situated v. Clean Harbors
Environmental Services, Inc. and Does 1 through 50, Case No.
34-2021-00292526-CU-OE-GDS (Cal. Super., Sacramento Cty., Jan. 14,
2021).
The case is brought over alleged employment-related violations.
Clean Harbors Environmental Services, Inc. is a provider of
environmental, energy and industrial services, including hazardous
waste disposal for companies, including Fortune 500 companies,
small waste generators and federal, state, provincial and local
governments. [BN]
The Plaintiff is represented by:
Norman Blumenthal, Esq.
BLUMENTHAL, NORDREHAUG & BHOWMIK
2255 Calle Clara
La Jolla, CA 92037-3107
Telephone: (858) 551-1223
Facsimile: (858) 551-1232
E-mail: norm@bamlawca.com
COMPLETE RESERVATION: Faces Fitzhenry Suit Over Unsolicited Calls
-----------------------------------------------------------------
Mark Fitzhenry v. Complete Reservation Solutions, LLC, Case No.
2021CP1000165 (S.C. Ct. Com. Pl., Charleston Cty., Jan. 13, 2021)
is brought on behalf of the Plaintiff and all others similarly
situated, arising from the Defendant's unlawful conduct of sending
automated calls to a number listed on the National Do Not Call
Registry, in violation of the South Carolina Telephone Privacy
Protection Act.
The Plaintiff alleges that he was deceived as to the nature and
origin of the calls, harassed on a constant basis, and has been
otherwise damaged. He further asserts that he suffered the loss of
his right to privacy, and potentially other concrete injuries in
fact to be determined, due to the conduct of Defendant.
Complete Reservation Solutions, LLC is a Delaware limited liability
company engages in camping and travel trailer rental business.
[BN]
The Plaintiff is represented by:
Dave Maxfield, Esq.
DAVE MAXFIELD, ATTORNEY, LLC
P.O. Box 11865
Columbia, SC 29211
Telephone: (803) 509-6800
Facsimile: (855) 299-1656
E-mail: dave@consumerlawsc.com
CONSTRUCTION MONITOR: Fabricant et al. Sue Over Unsolicited Calls
-----------------------------------------------------------------
The case, TERRY FABRICANT and LOUIS FLOYD, individually and on
behalf of all others similarly situated, Plaintiffs v. CONSTRUCTION
MONITOR, L.L.C. and DOES 1 through 10, inclusive, and each of them,
Defendant, Case No. 2:21-cv-00778 (C.D. Cal., January 28, 2021)
arises from the Defendant's alleged negligent and willful
violations of the Telephone Consumer Protection Act.
The Plaintiffs allege that they were contacted by the Defendant on
their cellular telephone number by using an "automatic telephone
dialing system" (ATDS) in an attempt to solicit them to purchase
its services. The Plaintiffs added that they did not provide their
"prior express consent" to the Defendant to be contacted via an
ATDS or an artificial or prerecorded voice on their cellular
telephones.
As a result of the Defendant's alleged unsolicited telephone calls,
the Plaintiffs and other similarly situated consumers were harmed
by causing them to incur certain charges or reduced telephone time
for which they had previously paid, and invading their privacy.
Thus, on behalf of themselves and other similarly situated
consumers, the Plaintiffs bring this complaint as a class action
seeking damages and any other available legal or equitable
remedies, the suit says.
Construction Monitor, L.L.C. is a marketing company. [BN]
The Plaintiffs are represented by:
Todd M. Friedman, Esq.
Adrian R. Bacon, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (323) 306-4234
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
COOK COUNTY, IL: Cert. Petition Filed in Mays Suit to Supreme Court
-------------------------------------------------------------------
Defendant Thomas J. Dart filed with the Supreme Court of United
States a petition for a writ of certiorari in the matter styled
Thomas J. Dart, Sheriff of Cook County, Illinois, Petitioner v.
Anthony Mays, individually and on behalf of a class of similarly
situated persons, et al. Respondents, Case No. 20-990.
Response is due on February 25, 2021.
Mr. Dart petitions for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Seventh Circuit in
the case titled Anthony Mays, individually and on behalf of a class
of similarly situated persons, et al., Plaintiffs-Appellees v.
Thomas J. Dart, Sheriff of Cook County, Illinois,
Defendant-Appellant, Case No. 20-1792, affirming the aspects of the
preliminary injunction.
As previously reported in the Class Action Reporter, the lawsuit is
brought as a class action complaint representative petition for
habeas corpus on behalf of the class of persons, who are detained
in the Cook County Jail and are facing unreasonable and unnecessary
risks of exposure to the Coronavirus, possible serious respiratory
illness, and death.
A rapidly escalating public health disaster is unfolding behind the
walls of the Cook County Jail, the Plaintiffs allege. In the 11
days since March 23, the number of confirmed cases of COVID 19, the
disease caused by a deadly coronavirus for which there is no
vaccine and no cure, has risen from one to at least 167. A total of
46 corrections staff are also known to have COVID-19. These numbers
will continue to rise dramatically because of the circumstances
alleged in this complaint, the Plaintiffs aver.
The Jail, which is operated under the supervision of Defendant
Thomas Dart, the Sheriff of Cook County, has failed in its
constitutional responsibility to the persons detained there to
provide reasonable protection against the further spread of this
deadly disease, the Plaintiffs contend. They note that social
distancing within the Jail is currently impossible because the Jail
is a crowded, congregate environment in which some 4,700
individuals are detained, in dual cell or dorm quarters. The
Plaintiffs insist that the Jail has repeatedly failed and continues
to fail to separate persons known to have been exposed to COVID-19
from other detainees.
The Court of Appeals affirmed the aspects of the preliminary
injunction that the district court converted from the temporary
restraining order. In that order, the district court made detailed
factual findings about the risks of COVID-19, the Sheriff's
existing policies, and the execution of these policies, relying on
hearing testimony and affidavits from Plaintiffs' experts,
detainees, and correctional administrators. The district court
assessed the requested relief considering the totality of the
Sheriff's conduct, rather than reviewing it in isolation. For
example, the district court declined Plaintiffs' request to mandate
testing of new detainees since the Sheriff already had in place a
policy requiring detainees to quarantine for fourteen days upon
their arrival to the Jail.[BN]
Defendant-Appellant-Petitioner Thomas J. Dart, Sheriff, Cook
County, Illinois, is represented by:
Gretchen Harris Sperry, Esq.
HINSHAW & CULBERTSON, LLP
151 N. Franklin Street
Chicago, IL 60606
E-mail: gsperry@hinshawlaw.com
CORECIVIC INC: Ninth Cir. Appeal Filed in Owino Labor Class Suit
----------------------------------------------------------------
Defendant CoreCivic, Inc. filed an appeal from a court ruling
entered in the lawsuit entitled SYLVESTER OWINO and JONATHAN GOMEZ,
on behalf of themselves and all others similarly situated, v.
CORECIVIC, INC., a Maryland corporation, Case No.
3:17-cv-01112-JLS-NLS, in the U.S. District Court for the Southern
District of California, San Diego.
As previously reported in the Class Action Reporter, the lawsuit
seeks declaratory, equitable and injunctive relief, restitution,
treble and punitive damages, disgorgement of unjustly acquired
revenue, profits and other benefits resulting from Defendant's
unlawful conduct, reasonable litigation expenses and attorneys'
fees, pre- and post-judgment interest, and such other and further
relief resulting from negligence, unjust enrichment and violation
of the Trafficking Victims Protection Act, Unfair Competition Law
of the California Business and Professions Code, California Labor
Code and applicable Industrial Welfare Commission Orders.
Plaintiffs are former civil immigration detainees who were
incarcerated and forced to work for $1 per day by CoreCivic, a
for-profit corporation engaged in the business of owning and
operating detention facilities and prisons.
The Defendant is seeking an appeal under Federal Rule of Civil
Procedure 23(f) to review the Court's Order dated January 13, 2021,
denying its motion for reconsideration.
The appellate case is captioned as Sylvester Owino, et al. v.
CoreCivic, Inc., Case No. 21-80003, in the United States Court of
Appeals for the Ninth Circuit, January 28, 2021.[BN]
Plaintiffs-Respondents SYLVESTER OWINO and JONATHAN GOMEZ, on
behalf of themselves, and all others similarly situated, are
represented by:
Eileen R. Ridley, Esq.
FOLEY & LARDNER LLP
555 California Street, Suite 1700
San Francisco, CA 94104-1520
Telephone: (415) 438-6469
E-mail: eridley@foley.com
- and -
Robert Teel, Esq.
1425 Broadway
Seattle, WA 98122
Telephone: (718) 570-7509
E-mail: lawoffice@rlteel.com
Defendant-Petitioner CORECIVIC, INC., a Maryland corporation, is
represented by:
Nicholas D. Acedo, Esq.
Jacob Brady Lee, Esq.
Rachel Love, Esq.
Daniel Patrick Struck, Esq.
STRUCK LOVE BOJANOWSKI & ACEDO PLC
3100 W. Ray Road, Suite 300
Chandler, AZ 85226
Telephone: (480) 420-1600
E-mail: nacedo@strucklove.com
jlee@strucklove.com
rlove@strucklove.com
dstruck@strucklove.com
CREE INC: Cal. Court Denies Young's Renewed Bid to Certify Class
----------------------------------------------------------------
The U.S. District Court for the Northern District of California
issued an order in the lawsuit captioned JEFF YOUNG, Plaintiff v.
CREE INC., Defendant, Case No. 4:17-cv-06252-YGR (N.D. Cal.):
(1) granting motion to strike and exclude Dr. Gary Allen;
(2) denying as moot motion to strike and exclude Mr. Stefan
Boedeker; and
(3) denying renewed motion to certify class.
Plaintiff Young brings the putative class action lawsuit against
Defendant Cree, alleging that Cree engaged in an unfair and
deceptive practice of promising consumers that Cree's
light-emitting-diode ("LED") bulbs will last for particularly long
periods of time up to 35,000 hours with a 100% Satisfaction
Guarantee and yearly energy cost savings ranging from around $0.60
to $2 per bulb per year in violation of California's Unfair
Competition Law (Count I); California's False Advertising Law
(Count II); Consumers Legal Remedies Act (Count III); fraudulent
misrepresentation and concealment (Count IV); unjust enrichment
(Count V); and breach of express and implied warranties (Count
VI).
Mr. Young and the proposed class assert that they paid a premium
because of these allegedly false, deceptive and misleading
marketing representations regarding longevity. As alleged in the
operative complaint, Cree LED "failed well before the promised time
frame." Young now seeks in his renewed motion to certify the
following class: "All persons in California who purchased Cree LED
Lightbulbs for end use, and not resale, during the period from
March 2013 to the present."
Cree's opposition contends that Young's claims fail to satisfy
commonality, typicality, and adequacy of representation, in
addition to the requirements under Section 23 (b)(3) of the Federal
Rules of Civil Procedure. In support of this motion, Young provides
two expert reports: first, a report of expert Dr. Stefan Boedeker,
who Young hired to ascertain if it is possible to quantify economic
losses to the Plaintiff and putative class members and provide a
framework for the computation of class-wide damages (opening
report); second, a report of expert Dr. Gary R. Allen, who Young
hired to determine whether a common failure mode exists for a
discrete set of LED lamps.
Cree seeks to strike the reports of and exclude opinions of Young's
expert witnesses, Boedeker and Allen.
The Court first address the pending Daubert motion regarding Dr.
Allen given its importance for the underlying motion for class
certification. For the reasons set forth in the Order, the Court
finds that the Daubert motion as to Dr. Allen is well-taken and
that its exclusion from the class certification analysis is fatal
to the request to certify the class. Consequently, it declines to
rule on the Daubert motion as to Dr. Boedeker as the issue is
moot.
Young primarily relies on Dr. Allen to identify alleged defects
that are common to the architecture of the Cree LED lightbulbs in
order to support his burden of the commonality factor under Rule
23(a) and the predominance inquiry under Rule 23(b)(3). Cree does
not challenge Dr. Allen's credentials, experience, or his
background. Instead, Cree focuses on his evaluations and
assessments, including as to the procedures, assumptions and
ultimate opinions.
Dr. Allen has a Ph.D. and a Masters of Science in astrophysical
sciences from Princeton University and in addition to degrees from
Pennsylvania State University. Dr. Allen conceived and designed the
world's first LED replacement lamp to be certified under the ENERGY
STAR program.
Cree challenges two of Dr. Allen's methodologies and assessments
made in his opinions: (a) the LED Lamp Design and LED Lamp Design
Architecture methodology and classification; and (b) the Target
Maximum methodology and conclusions. Cree further moves to strike
new opinions and methodologies that were absent in Dr. Allen's
Rebuttal, namely: (i) Dr. Allen's citations to new methodology and
studies that subject LED lamps to on-off switching that he claims
proves Cree LED lamps will fail premature; and (ii) Dr. Allen's
purported statistical analysis of The Home Depot's records of
returned Cree LED lamps.
District Judge Yvonne Gonzalez Rogers opines that Dr. Allen's
analysis of LED Lamp Designs and LED Lamp Design Architectures has
not shown to be at the appropriate level of intellectual rigor
required to meet the Daubert standard. Importantly, the issue is
not reviewed in a vacuum. The record is replete with the business
community, government regulators, and academics designing for,
testing, and projecting long-term LED lamp lifetimes, and many
groups spending years investigating processes and procedures
subject to peer review, public comment, and government approval
with respect to these issues.
Moreover, Dr. Allen's Rebuttal Report itself reveals the error of
being so overinclusive. Indeed, the Court is generally aware of the
foundational principle that more power and wattage would typically
mean higher temperatures for that electrical system. That Dr. Allen
ignored this in his Opening Report when making his categories
reveals that Dr. Allen overlooked and failed to apply this basic
understanding when creating this novel methodology, Judge Rogers
notes. It is unsurprising, therefore, that Dr. Allen concedes in
his Rebuttal Report that some of the lower wattage LED lamps in
some of the Designs and Architectures do not in fact fail, despite
placing them within the same groups as higher wattage models and
versions.
Accordingly, the Court finds that exclusion of Dr. Allen's opinions
as to the LED Lamp Designs and LED Lamp Design Architectures is
appropriately excluded under Daubert.
With respect to the Target Maximums, Cree challenges the analysis
on two grounds. First, Cree contends that Dr. Allen's Target
Maximums are an arbitrary conservative preference untethered to any
industry standard or accepted research. Second, the Target Maximum
analysis offers no causal link between the purported defect and
liability and fails to quantify any specific number of failures
from Cree LED lamps.
In opposition Young disputes these grounds with similar arguments
as in the prior section. Namely, Young avers that Dr. Allen's
opinions are supported by and based on engineering best practices
related to design for reliability, and that there are no industry
standards or regulations concerning the temperatures of the
electronic components of LED lamps.
Dr. Allen admits that there is no industry standard for maximum
temperature of a heat sink, and he does not cite to any sources
that recommend temperature thresholds. Dr. Allen also admits that
these Target Maximums, while based on a general engineering rules
of thumb, are not industry standard, but rather are a personal
preference reflecting his conservative design targets.
The Target Maximum analysis offers no causal link between the
purported defect and liability and fails to quantify any specific
number of failures from Cree LED lamps. Dr. Allen concludes that
there is a higher risk of failure due to the heat on certain
components of the LED lamp. However, not only does Dr. Allen not
define failure, he cannot quantify, or even approximate, the
specific failure rate. Nor does Dr. Allen link the defect with the
ultimate liability in this action, Judge Rogers finds.
Accordingly, the Court finds that exclusion of Dr. Allen's opinions
as to Target Maximums is appropriately excluded under Daubert.
Cree further moves in its reply to strike from Dr. Allen's Rebuttal
his citation to new methodology and studies concerning on-off
switching that he asserts prove Cree LED lamps will fail and
statistical analysis performed on the THD records of returned Cree
LED lamps. Specifically, Cree highlights that these new opinions
and testing do not rebut any of its expert witness opinion, and
that it was not properly raised in the opening report.
Additionally, Cree contends that the Dr. Allen has no background or
expertise in statistics, misconstrues the cited studies, and
reaches an incorrect conclusion with his statistical analysis.
The Court agrees. As an initial hurdle, Dr. Allen's opinions
incorporating these additional citations and arguments were not
properly raised or disclosed in his opening brief, and they do not
respond to any of the opinions of Cree's expert witnesses.
While Dr. Allen might be expert in statistical analysis, the record
does not support the conclusion, the Judge says. In short, Young
has not shown that Dr. Allen is qualified to perform that type of
statistical analysis on the THD materials that he has done. On this
basis too is Dr. Allen's new opinions made in his rebuttal also
appropriately stricken.
The Court concludes that Dr. Allen's opinions do not meet the
Daubert standard. Accordingly, the Court grants the Daubert motion
as to Dr. Allen.
Young moves to certify a California class of consumers who have
purchased specific Cree LED bulbs. In opposition, Cree challenges
the commonality, typicality, and adequacy factors of Rule 23(a), in
addition to the requirements under Rule 23 (b)(3).
Judge Rogers finds that Young fails to establish that there are
common questions of law or fact. In a case alleging claims of a
defective product and misrepresentations regarding that defect,
without any evidence of a common defect, there are no 'common
questions of law or fact' binding the proposed class together,
Judge Rogers holds, citing Kramer v. Toyota Motor Co., 688 F. App'x
765, 766 (9th Cir. 2016). Hence, the Court denies the motion for
class certification.
Accordingly, the Court orders as follows:
* Cree's Daubert motion as to Dr. Allen is granted;
* Young's motion for class certification is denied; and
* Cree's Daubert motion as to Dr. Boedeker is denied as moot.
Moreover, in light of the Order, the Court sets a compliance
deadline for 9:01 a.m. on February 26, 2021. Five business days
prior to the date of the compliance deadline, the parties will file
a joint statement setting forth the parties' position with respect
to the scheduling of this case. If compliance is complete, the
compliance deadline will be taken off calendar.
This Order terminates Docket Numbers 115, 116, 117, 118, and 127.
A full-text copy of the Court's Order dated Jan. 28, 2021, is
available at https://tinyurl.com/lsmq1a12 from Leagle.com.
CVS PHARMACY: Court Grants in Part Joint Bid to Dismiss Lee Suit
----------------------------------------------------------------
In the lawsuit titled LISA L. LEE, on behalf of herself and all
others similarly situated, Plaintiff v. CVS PHARMACY, INC., a Rhode
Island corporation; CVS HEALTH CORPORATION, INC., a Delaware
corporation; and DOES 1 through 100, inclusive, Defendant, Case No.
3:20-cv-01923-BEN-DEB (S.D. Cal.), the U.S. District Court for the
Southern District of California denies the Defendants' motion to
dismiss as moot, and grants in part joint motion to dismiss.
Plaintiff Lee, on behalf of herself and all others similarly
situated, brought the civil antitrust and unfair competition class
action against Defendants CVS Pharmacy, a Rhode Island Corporation,
and CVS Health, a Delaware Corporation.
On August 3, 2020, the Plaintiff filed the putative class action in
the San Diego Superior Court against the Defendants, alleging
claims for relief for (1) violation of the Cartwright Act, (2)
violation of California's Unfair Competition Law, and (3)
injunctive relief for violations of the Consumer Legal Remedies
Act. On Sept. 25, 2020, the Defendant filed a Notice of Removal.
On October 2, 2020, the Defendants filed a Motion to Dismiss for
lack of jurisdiction and failure to state a claim. However, on
October 19, 2020, the parties filed a Joint Motion to Dismiss the
case, pursuant to which the parties ask that (1) the individual
claims of the Plaintiff against the Defendants will be dismissed in
their entirety with prejudice pursuant to Rules 41(a)(1) and (2) of
the Federal Rules of Civil Procedure, (2) the class claims against
the Defendants will be dismissed in their entirety without
prejudice pursuant to Rules 41(a)(1) and (2), (3) "except as
otherwise agreed upon, each party will bear his/her/its own costs
and attorneys' fees, and (4) the dismissal will not operate as an
adjudication on the merits."
District Judge Roger T. Benitez notes that in the case, the parties
jointly seek to dismiss individual claims in the putative class
action under both Rule 41(a)(1) and 41(a)(2) with prejudice. They
advise that the Plaintiff has not sought class certification, a
class was not certified, and no notice was sent to a prospective
class.
As a result, the Court finds no reason to deny the Joint Motion. In
granting the Joint Motion, which dismisses the entire case, the
Court finds the Motion to Dismiss preceding it moot.
The Joint Motion is granted in part as follows:
1. Plaintiff Lisa L. Lee's individual claims against the
Defendants are dismissed in their entirety as to all claims
for relief with prejudice pursuant to Rule 41(a)(2);
2. The Joint Motion is denied as to the putative class claims.
Although the case was filed as a putative class action,
the Plaintiff did not seek class certification, and as
such, the Court did not certify the class. Therefore, with
no certified class claims having come into existence, any
dismissal will not affect putative class members' claims;
3. Each party is to bear its own costs, fees, and expenses.
4. The dismissal will not operate as an adjudication on the
merits except to the extent authorized by Rule 41(a)(1)(B);
5. Defendants' Motion to Dismiss is denied as moot due to the
Court's dismissal of the entire case; and
6. The Clerk of the Court is directed to close the case.
A full-text copy of the Court's Order dated Jan. 28, 2021, is
available at https://tinyurl.com/e1s82zv1 from Leagle.com.
DIAMOND NAIL: Response Time for Lu's Class Status Bid Extended
--------------------------------------------------------------
In the class action lawsuit captioned as Lu, et al., v. Diamond
Nail Salon, LLC, et al., Case No. 3:19-cv-02017 (D. Conn.), the
Hon. Judge Victor A. Bolden entered an order granting the
Defendants' motion for extension of time to respond to Plaintiffs'
motions for conditional class certification.
The suit alleges violation of the Fair Labor Standards Act.
Diamond nails operate salon and spa business.[CC]
DISCOVERY COMMUNICATIONS: Sanchez Files ADA Suit in S.D. New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Discovery
Communications, LLC. The case is styled as Christian Sanchez, on
behalf of himself and all others similarly situated v. Discovery
Communications, LLC, Case No. 1:21-cv-00935 (S.D.N.Y., Feb. 3,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Discovery Communications, LLC -- https://corporate.discovery.com/
-- provides entertainment services. The Company offers cable and
satellite television services.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
DIVERSIFIED MAINTENANCE: Underpays Custodial Workers, Sorto Claims
------------------------------------------------------------------
The case, ROSA A. SORTO, on behalf of herself and all other persons
similarly situated, Plaintiff v. DIVERSIFIED MAINTENANCE SYSTEMS,
LLC, Defendant, Case No. 2:21-cv-00463 (E.D.N.Y., January 28, 2021)
arises from the Defendant's alleged violation of the New York Labor
Law.
The Plaintiff was employed by the Defendant as an hourly-paid
manual worker who performed custodial duties from in or around
September 2019 through the present.
The Plaintiff asserts these claims:
-- The Defendant failed to pay her and other similarly
situated custodial workers on a bi-weekly basis and not later than
seven calendar days after the end of the week in which the wages
are earned;
-- The Defendant failed to pay them spread-of-hours pay when
they worked a day that was longer than 10 hours from its start to
its finish;
-- The Defendant failed to provide them with written notice of
their rate of pay during the day they were hired.
The Plaintiff seeks injunctive relief and declaratory relief,
compensatory damages, liquidated damages, punitive damages,
attorneys' fees, and other appropriate relief, the suit says.
Diversified Maintenance Systems, LLc provides custodial services to
retail department stores and commercial or industrial facilities
located throughout the State of New York. [BN]
The Plaintiff is represented by:
Peter A. Romero, Esq.
LAW OFFICE OF PETER A. ROMERO PLLC
825 Veterans Highway
Hauppauge, NY 11788
Tel: (631) 257-5588
E-mail: promero@romerolawny.com
DIY STYLIST: Petite Blow Dryer Has Deceptive Labeling, Thur Claims
------------------------------------------------------------------
Danielle Thur, individually and on behalf of all others similarly
situated v. DIY Stylist, LLC, Case No. 151020/2021 (N.Y. Sup., New
York, Jan. 29, 2021) seeks to remedy the deceptive and misleading
business practices of DIY Stylist with respect to the marketing and
sales of the DIY Stylist Petite Blow Dryer ("Product") throughout
the State of New York and throughout the country.
According to the complaint, the packaging of the Product -- which
is viewed by every person who purchases the Product -- prominently
advertises that it has 1875 watts of power. Hair dryer wattage is
important to consumers because a higher wattage means that the
dryer blows air hotter and faster, reducing drying time and, in
turn, reducing damage to hair caused by excessive heat. Indeed, the
Defendant's placement of the term "High Powered Motor" on the front
of the Product packaging shows that Defendant believes that dryer
power is important to consumers.
However, Defendant's wattage representation is false. Testing shows
that the Product's power is actually significantly lower than the
advertised 1875 watts, the suit says.
The Plaintiff and those similarly situated ("Class Members") relied
on the Defendant's misrepresentations that the Product has 1875
watts of power when purchasing the Product. The Plaintiff and Class
Members paid a premium for the Product over and above comparable
products that did not purport to have 1875 watts of power. Given
that the Plaintiff and Class Members paid a premium for the Product
based on the Defendant's misrepresentations regarding the Product's
power capacity, the Plaintiff and Class Members suffered an injury
in the amount of the premium paid, the suit added.
The Defendant's conduct allegedly violated and continues to
violate, inter alia, New York General Business Law sections 349 and
350. The Defendant breached and continues to breach its warranties
regarding the Product and has been and continues to be unjustly
enriched, says the suit.
The Plaintiff is an individual consumer who, at all times material
hereto, was a citizen of New York County, New York. The Plaintiff
purchased the Product during the Class Period.
DIY Stylist manufactures, markets, advertises, and distributes the
Product throughout the United States.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
Joseph Lipari, Esq.
THE SULTZER LAW GROUP P.C.
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Telephone: (845) 483-7100
Facsimile: (888) 749-7747
E-mail: sultzerj@thesultzerlawgroup.com
- and -
Jeffrey K. Brown, Esq.
LEEDS BROWN LAW, P.C.
1 Old Country Road, Suite 347
Carle Place, NY 11514
Telephone: (516) 873-9550
E-mail: jbrown@leedsbrownlaw.com
DXP ENTERPRISES: FLSA Conditional Status Bid Nixed w/o Prejudice
----------------------------------------------------------------
In the class action lawsuit captioned as RENE SAENZ and TRAVIS
COLLINS, individually and on behalf of all others similarly
situated, v. DXP ENTERPRISES, INC. And CHEVRON U.S.A., INC., Case
No. 7:20-cv-00165-DC-RCG (W.D. Tex. ), the Hon. Judge Ronald C.
Griffin entered an order denying without prejudice the plaintiffs'
motion for Fair Labor Standards Act(FLSA) conditional certification
and notice.
The Court said, "District courts in the Fifth Circuit have long
employed the Lusardi two-step approach when considering motions for
conditional certification under the FLSA. Both the Plaintiffs'
Motions and Defendants' Responses are premised on the application
of the Lusardi two-step approach to conditional certification.
However, on January 12, 2021 in Swales v. KLLM Transport Services,
the Fifth Circuit enunciated its rejection of Lusardi. F.3d, No.
19-60847, 2021 WL 98229 (5th Cir. Jan. 12, 2021). The conditional
certification standard articulated by the Fifth Circuit in Swales
now requires the district court to:
"[I]dentify, at the outset of the case, what facts and legal
considerations will be material to determining whether a
group of "employees" is "similarly situated." And then it
should authorize preliminary discovery accordingly. The
amount of discovery necessary to make that determination will
vary case by case, but the initial determination must be
made, and as early as possible. In other words, the district
court, not the standards from Lusardi, should dictate the
amount of discovery needed to determine if and when to send
notice to potential opt-in plaintiffs."
Consequently, the Court finds it necessary to deny without
prejudice Plaintiffs' Motions for Conditional Certification and
Notice, so as to allow refiling when appropriate. Further, the
Court will set a status conference in conformity with Swales under
forthcoming, separate order.
DXP Enterprises provides maintenance, repair, and operating
products, equipment, and services to industrial customers. The
Company provides fluid handling equipment, power transmission,
general mill and safety supplies, and electrical products. Chevron
USA. provides energy services. The Company offers fuels, motor oil,
fuel additives, base oils, chemicals, natural gas, lubricants, and
other related services.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3aDJ0dl at no extra charge.[CC]
EARLY INTERVENTION: Underpays Tutors, Fields Suit Claims
--------------------------------------------------------
CHRISTOPHER FIELDS, individually and on behalf of others similarly
situated, Plaintiff v. EARLY INTERVENTION CONSULTING LLC, AMANDA
RAMI, and DAVID RAMI, Defendants, Case No. 1:21-cv-00225 (N.D.
Ohio, January 28, 2021) is a collective and class action complaint
brought against the Defendants for their alleged violations of the
Fair Labor Standards Act, the Illinois Minimum Wage Law, and the
Illinois Wage Payment and Collection Act.
The Plaintiff worked for the Defendant as a tutor to work remotely
in states throughout the country and attend to the Defendants'
patients. The Plaintiff asserts that he and other similarly
situated employees were classified by the Defendant as independent
contractors and paid them on an hourly basis, but did not provide
them with any guaranteed, predetermined amount of pay per week.
Although the Plaintiff and other similarly situated "tutors"
regularly worked in excess of 40 per workweek, the Defendant failed
to pay them for all hours they worked and in excess of 40 hours in
a week at one and one-half times their regular rate of pay.
Specifically, the Defendant failed to compensate them for the time
they spent recruiting colleagues and acquaintances to work as
tutors; training; in sessions with clients that was not paid due to
technical glitches with TSheets; travelling between clients' homes
and/or other locations at which sessions took place; waiting for
clients to appear at sessions that were cancelled; and performing
work outside of their scheduled client sessions, the suit says.
Moreover, the Defendant allegedly failed to reimburse tutors for
reasonable expenditures or losses required of the employees in the
discharge of employment duties and that inured to the primary
benefit of the Defendant.
Early Intervention Consulting LLC is a company that provides
Applied Behavior Analysis (ABA) therapy services to children and
teens with autism, operated by the Individual Defendants. [BN]
The Plaintiff is represented by:
Jason T. Brown, Esq.
Nicholas Conlon, Esq.
BROWN, LLC
111 Town Square Place, Suite 400
Jersey City, NJ 07310
Tel: (877) 561-0000
Fax: (855) 582-5297
E-mail: jtb@jtblawgroup.com
nicholasconlon@jtblawgroup.com
ENVISION HEALTHCARE: Extension of Class Status Reply Brief Sought
-----------------------------------------------------------------
In the class action lawsuit re ENVISION HEALTHCARE CORPORATION
SECURITIES LITIGATION, Case No. 3:17-cv-01112 (M.D. Tenn.), the
Defendants ask the Court to enter an order their deadline to
respond to the Plaintiffs' Motion for Class Certification be
extended by an additional 14 days to Monday, February 22, 2021, and
that Plaintiffs' deadline to file a Reply in Support of the Motion
also be extended by 14 days to Thursday, April 8, 2021.
The Defendants say that the parties have only recently completed
depositions of the Plaintiffs' proposed class representatives and
their third-party investment advisors, as well as the deposition of
Plaintiffs' expert witness that was completed on January 25, 2021.
They require additional time to review deposition testimony and
additional discovery materials prior to filing their opposition to
the Motion. The Defendants add that the present motion is made in
good faith and not for the purpose of delay. Moreover, no party
will be prejudiced by the brief extension requested. The Plaintiffs
do not oppose this motion and have consented to this request for an
extension of Defendants' deadline to file their opposition brief.
They likewise do not oppose an extension of Plaintiffs' deadline to
file their reply.
The Defendants include Envision Healthcare Corporation, William A.
Sanger, Randel G. Owen, Craig A. Wilson, Todd G. Zimmerman, Carol
J. Burt, Mark V. Mactas, Leonard M. Riggs, Jr., Richard J. Schnall,
James D. Shelton, Michael L. Smith, Ronald A. Williams, Christopher
A. Holden, Claire M. Gulmi, Kevin D. Eastridge, Thomas G. Cigarran,
James A. Deal, John T. Gawaluck, Steven I. Geringer, Henry D. Herr,
Joey A. Jacobs, Kevin P. Lavender, Cynthia S. Miller and John W.
Popp, Jr.
Envision Healthcare provides health care services.
A copy of the Defendants' motion dated Jan. 27, 2020 is available
from PacerMonitor.com at http://bit.ly/3rouLzEat no extra
charge.[CC]
The Plaintiffs are represented by:
J. Alexander Hood II, Esq.
Jeremy A. Lieberman, Esq.
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
E-mail: ahood@pomlaw.com
jalieberman@pomlaw.com
pdahlstrom@pomlaw.com
- and -
Paul Kent Bramlett, Esq.
Robert P. Bramlett, Esq.
BRAMLETT LAW OFFICES
40 Burton Hills Blvd., Suite 200
P O Box 150734
Nashville, TN 37215
Telephone: (615) 248-2828
E-mail: pknashlaw@aol.com
robert@bramlettlawoffices.com
- and -
John T. Long, Esq.
CAVANAGH & O'HARA
2319 West Jefferson Street
Springfield, IL 62702
Telephone: (217) 544-1771
E-mail: johnlong@cavanagh-ohara.com
- and -
John S. Hicks, Esq.
BAKER, DONELSON, BEARMAN, CALDWELL &
BERKOWITZ PC
211 Commerce Street, Suite 800
Nashville, TN 37201
Telephone: (615) 726-5600
E-mail: jhicks@bakerdonelson.com
- and -
Kenneth S. Byrd, Esq.
Mark P. Chalos, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
222 2nd Avenue South, Suite 1640
Nashville, TN 37201
Telephone: (615) 313-9000
E-mail: kbyrd@lchb.com
mchalos@lchb.com
- and -
Jonathan L. Bobbitt, Esq.
GILBERT MCWHERTER SCOTT & BOBBITT PLC
341 Cool Springs Blvd., Suite 230
Franklin, TN 37067
Telephone: (615) 354-1144
E-mail: jbobbitt@gilbertfirm.com
- and -
Elliot Greenfield, Esq.
Rachel A. Shanies, Esq.
Shannon Rose Selden, Esq.
DEBEVOISE & PLIMPTON, ESQ.
919 Third Avenue
New York, NY 10022
Telephone: (212) 909-6772
E-mail: egreenfield@debevoise.com
rashanies@debevoise.com
srselden@debevoise.com
- and -
Gregory F. Coleman, Esq.
Lisa A. White, Esq.
GREG COLEMAN LAW PC
First Tennessee Plaza
800 South Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
E-mail: greg@gregcolemanlaw.com
lisa@gregcolemanlaw.com
- and -
Christopher Hamp Lyons, Esq.
Christopher M. Wood, Esq.
Darren J. Robbins, Esq.
Eric I. Niehaus, Esq.
Spencer Alan Burkholz, Esq.
Alexi H. Pfeffer-Gillett, Esq.
Christopher Stewart, Esq.
J. Marco Janoski, Esq.
Jessica Shinnefield, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2203
E-mail: clyons@rgrdlaw.com
cwood@rgrdlaw.com
darrenr@rgrdlaw.com
ericn@rgrdlaw.com
spenceb@rgrdlaw.com
agillett@rgrdlaw.com
cstewart@rgrdlaw.com
mjanoski@rgrdlaw.com
jshinnefield@rgrdlaw.com
- and -
Jerry E. Martin, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Bank of America Plaza
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
E-mail: jmartin@barrettjohnston.com
- and -
Benjamin B. Coulter, Esq.
Kathryn E. Grundy, Esq.
BURR & FORMAN, LLP
420 N 20th Street, Suite 3400
Birmingham, AL 35203
E-mail: bcoulter@burr.com
kgrundy@burr.com
- and -
James A. Holifield, Jr., Esq.
HOLIFIELD JANICH RACHAL & ASSOCIATES PLLC
11907 Kingston Pike, Suite 201
Knoxville, TN 37934
Telephone: (865) 566-0115
E-mail: aholifield@holifieldlaw.com
- and -
James Gerard Stranch IV, Esq.
BRANSTETTER, STRANCH & JENNINGS PLLC
The Freedom Center
223 Rosa L. Parks Avenue , Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
E-mail: gerards@bsjfirm.com
Attorneys for Defendant Envision Healthcare Corporation and the
Individual Defendants, are:
Britt K. Latham, Esq.
W. Brantley Phillips, Jr., Esq.
Kathryn Hannen Walker, Esq.
Joseph B. Crace, Jr., Esq.
BASS, BERRY & SIMS PLC
150 Third Avenue South, Suite 2800
Nashville, TN 37201
Telephone: (615) 742-6200
E-mail: blatham@bassberry.com
bphillips@bassberry.com
kwalker@bassberry.com
jcrace@bassberry.com
Attorneys for the Defendant Envision Healthcare Corporation, are:
Peter E. Kazanoff, Esq.
Craig S. Waldman, Esq.
Amy L. Dawson, Esq.
SIMPSON THACHER & BARTLETT LLP
425 Lexington Avenue
New York, NY 10017
Telephone: (212) 455-3525
E-mail: pkazanoff@stblaw.com
cwaldman@stblaw.com
amy.dawson@stblaw.com
ENVISION HEALTHCARE: Must File Class Status Opposition by Feb. 22
-----------------------------------------------------------------
In the class action lawsuit re ENVISION HEALTHCARE CORPORATION
SECURITIES LITIGATION, Case No. 3:17-cv-01112 (M.D. Tenn.), the
Hon. Judge William L. Campbell, Jr. entered an order granting
unopposed motion for extension of time filed by the Defendants with
respect to their opposition to the Plaintiffs' Motion for Class
Certification.
The Defendants may file their opposition to the Plaintiffs' Motion
on or before Monday, February 22, 2021. The Plaintiffs may file
their reply in further support of the Motion on or before Thursday,
April 8, 2021.
Envision Healthcare is an American healthcare company and national
hospital-based physician group.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/3pV1IDv at no extra charge.[CC]
EQUITY RESIDENTIAL: Wants Court to Modify Class Certification Order
-------------------------------------------------------------------
In the class action lawsuit captioned as AVANNI MUNGUIA-BROWN,
ANGELINA MAGANA, NORMA RODRIGUEZ, AND DAVID BONFANTI INDIVIDUALLY
AND ON BEHALF OF OTHERS SIMILARLY SITUATED, v. EQUITY RESIDENTIAL,
A REAL ESTATE INVESTMENT TRUST, ERP OPERATING LIMITED PARTNERSHIP,
A PARTNERSHIP, EQUITY RESIDENTIAL MANAGEMENT, L.L.C., EQR-WOODLAND
PARK A LIMITED PARTNERSHIP, AND EQR-WOODLAND PARK B LIMITED
PARTNERSHIP, Case No. 4:16-cv-01225-JSW (N.D. Cal.), the Defendants
will move the Court on March 12, 2021, to modify the existing class
certification order and/or any class certification order to arise
out of the Plaintiffs' pending motion to modify the existing class
certification order to exclude Equity's management-level employees
from the Standard Late Fee Class.
Equity recently learned that some of its current management-level
employees fall within the scope of the Standard Late Fee Class
definition, as some of these employees lived at an Equity property
in California between September 2010 and October 2017, and were
charged a late fee. These management-level employees are directly
responsible for administering Equity's late fees in California. Yet
because these management-level employees are technically class
members, Equity cannot communicate with them about the lawsuit.
On October 23, 2017, the Court certified two classes under Rule
23(b)(3) -- the Standard Late Relevant Procedural History
Fee Class and the Woodland Park Class.
The Standard Late Fee Class consists of "[a]ll Equity
Residential tenants in California from September 3, 2010
until the date of class certification who were charged one or
more late fee(s) under Equity Residential's standard late fee
provision: 5% of the outstanding balance owed (ca[pp]ed at 5%
of the total amount of monthly recurring charges) or $50,
whichever is greater."
The Woodland Park Class was defined as "[a]ll Equity
Residential tenants in the Woodland Park Property from
December 1, 2011 until Defendant sold the property in
February 2016 who were charged one or more late fee(s) of $50
under Equity Residential's policy of charging a flat $50 late
fee to tenants on pre-existing non-EQR leases."
Equity Residential is a publicly-traded real estate investment
trust that invests in apartments. As of December 31, 2019, the
company owned or had investments in 309 properties consisting of
79,962 apartment units in Southern California, San Francisco,
Washington, D.C., New York City, Boston, Seattle, and Denver.
A copy of the Defednants' motion dated Jan. 28, 2020 is available
from PacerMonitor.com at https://bit.ly/3aG8hU1 at no extra
charge.[CC]
The Defendants are represented by:
Aaron T. Winn, Esq.
DUANE MORRIS LLP
750 B Street, Suite 2900
San Diego, CA 92101-4681
Telephone: (619) 744-2200
Facsimile: (619) 744-2201
E-mail: atwinn@duanemorris.com
- and -
Justin J. Fields, Esq.
DUANE MORRIS LLP
One Market, Spear Tower, Suite 2200
San Francisco, CA 94105-1127
Telephone: (415) 957-3000
Facsimile: (415) 957-3001
E-mail: jfields@duanemorris.com
EVERGREEN PROFESSIONAL: Rodriguez Bid for Final Class Cert. on Hold
-------------------------------------------------------------------
In the class action lawsuit captioned as JESSE RODRIGUEZ, on behalf
of himself and all others similarly situated, v. EVERGREEN
PROFESSIONAL RECOVERIES, INC., Case No. 2:19-cv-00184-JCC (W.D.
Wash.), the Hon. Judge John C. Coughenour entered an order
deferring consideration of the Plaintiff's motions for final class
certification, final settlement approval, and attorney fees as
follows:
-- Within 14 days of the date of this order, the Plaintiff's
counsel shall file their timesheets and documentation
supporting their requested costs and the parties shall submit
supplemental briefing that addresses:
1. When the parties can provide notice of Plaintiff's
attorney fee motion and supporting documentation to the
class, when the Court should set the deadline for class
members to object to that motion, and when the Court
should reschedule the fairness hearing (at which the Court
will also hear argument on the fee motion).
2. Whether the parties must provide notice of the date of the
new fairness hearing and information about participating
remotely to class members when they notify the class of
the Plaintiff's fee motion.
The Court's order is not intended to suggest that the Court is or
is not likely to grant final approval of the settlement or award
the attorney fees Plaintiff requests. The Court holds only that it
cannot do so on the present record, the Court says.
Plaintiff Rodriguez was issued a driving ticket in 2018. When he
failed to pay it, Seattle Municipal Court hired Defendant Evergreen
Professional Recoveries to collect the debt. As part of its
collection efforts, Evergreen requested Mr. Rodriguez's credit
report from TransUnion. In response, Mr. Rodriguez filed this class
action lawsuit, alleging that Evergreen requested his credit report
(and others') for an improper purpose in violation of the Fair
Credit Reporting Act (FCRA).
Evergreen Professional is a debt recovery agency.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at http://bit.ly/2MVCczsat no extra charge.[CC]
EVOQUA WATER: Continues to Defend Securities Class Suit in New York
-------------------------------------------------------------------
Evoqua Water Technologies Corp. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 2, 2021,
for the quarterly period ended December 31, 2020, that the company
continues to defend a class action suit entitled, In re Evoqua
Water Technologies Corp. Securities Litigation.
In November 2018, a purported shareholder of the Company filed a
class action lawsuit, captioned McWilliams v. Evoqua Water
Technologies Corp., Case No. 1:18-CV-10320, in the United States
District Court for the Southern District of New York alleging that
the Company and senior management violated federal securities laws
by issuing false, misleading, and/or omissive disclosures in the
period leading up to the Company's October 30, 2018 announcement
of, among other things, (a) preliminary results for the full-year
fiscal 2018 that were below previous expectations and (b) a
transition from a three-segment structure to a two-segment
operating model.
In January 2019, the court appointed lead plaintiffs and lead
counsel and re-captioned the action as In re Evoqua Water
Technologies Corp. Securities Litigation.
In March 2019, lead plaintiffs filed an amended complaint, which
asserts claims pursuant to the Securities Exchange Act of 1934 and
the Securities Act of 1933 against the Company, members of the
Company's board of directors, senior management, a former
executive, EA Investors LP (AEA), and the underwriters of the
Company's initial public offering (IPO) and secondary public
offering.
The amended complaint alleges that the defendants violated federal
securities laws by issuing false, misleading, and/or omissive
disclosures concerning the Company's integration of acquired
companies, the Company's reduction-in-force, and the Company's
financial results of operations. The lawsuit seeks compensatory
damages in an unspecified amount and an award of costs and expenses
to the plaintiff and class counsel.
In March 2020, the Court granted the defendants' motion to dismiss
a portion of the claims, dismissing all claims predicated on
supposedly intentional misstatements or omissions, which were
brought under the Securities Exchange Act of 1934. The claims that
remain are those brought under the Securities Act of 1933.
The Company has filed an answer denying the material allegations of
the complaint, and discovery is now underway.
The Company believes that this lawsuit is without merit and intends
to vigorously defend itself against the allegations.
Evoqua Water Technologies Corp. provides a range of water and
wastewater treatment systems and technologies, and mobile and
emergency water supply solutions and services. It operates in three
segments: Industrial, Municipal, and Products. The company has
operations in the United States, Canada, the United Kingdom, the
Netherlands, Germany, Australia, China, and Singapore. Evoqua Water
Technologies Corp. was incorporated in 2013 and is headquartered in
Pittsburgh, Pennsylvania.
EXXON MOBIL: Bernstein Liebhard Reminds of March 29 Deadline
------------------------------------------------------------
Bernstein Liebhard, a nationally acclaimed investor rights law
firm, announces that a securities class action lawsuit has been
filed on behalf of investors who purchased or acquired the
securities of Exxon Mobil Corporation ("Exxon" or the "Company")
(NYSE: XOM) from November 6, 2019 through January 14, 2021 (the
"Class Period"). The lawsuit filed in the United States District
Court for the Northern District of Texas alleges violations of the
Securities Exchange Act of 1934.
If you purchased Exxon securities, and/or would like to discuss
your legal rights and options please visit Exxon Shareholder Class
Action Lawsuit or contact Matthew E. Guarnero toll free at (877)
779-1414 or MGuarnero@bernlieb.com.
The complaint alleges that throughout the Class Period, defendants
made materially false and/or misleading statements, as well as
failed to disclose to investors: (i) Exxon forced its employees to
use unrealistic assumptions regarding the timelines for well
drilling in the Permian Basin; (ii) the foregoing assumptions
served to artificially inflate the value of the Company's well
operations in the Permian Basin; (iii) the foregoing conduct, when
revealed, subjected Exxon to a heightened risk of regulatory
investigation and oversight; and (iv) as a result, the Company's
public statements were materially false and misleading at all
relevant times.
On January 15, 2021, pre-market, the Wall Street Journal published
an article entitled "Exxon Draws SEC Probe Over Permian Basin Asset
Valuation." The article reported that the SEC probe stemmed from a
whistleblower complaint that, during a 2019 internal assessment,
workers were forced to use unrealistic assumptions about how
quickly wells in the Permian Basin could be drilled to reach a
higher valuation, and that at least one worker who complained about
the assumptions was fired.
On this news, Exxon's stock price fell $2.42 per share, or 4.81%,
to close at $47.89 per share on January 15, 2021.
If you wish to serve as lead plaintiff, you must move the Court no
later than March 29, 2021. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. Your ability to share in any recovery doesn't require
that you serve as lead plaintiff. If you choose to take no action,
you may remain an absent class member.
If you purchased Exxon securities, and/or would like to discuss
your legal rights and options please visit
https://www.bernlieb.com/cases/exxonmobilecorporation-xom-shareholder-class-action-lawsuit-stock-fraud-358/apply/
or contact Matthew E. Guarnero toll free at (877) 779-1414 or
MGuarnero@bernlieb.com.
Since 1993, Bernstein Liebhard LLP has recovered over $3.5 billion
for its clients. In addition to representing individual investors,
the Firm has been retained by some of the largest public and
private pension funds in the country to monitor their assets and
pursue litigation on their behalf. As a result of its success
litigating hundreds of lawsuits and class actions, the Firm has
been named to The National Law Journal's "Plaintiffs' Hot List"
thirteen times and listed in The Legal 500 for ten consecutive
years.
ATTORNEY ADVERTISING. © 2021 Bernstein Liebhard LLP. The law firm
responsible for this advertisement is Bernstein Liebhard LLP, 10
East 40th Street, New York, New York 10016, (212) 779-1414. The
lawyer responsible for this advertisement in the State of
Connecticut is Michael S. Bigin. Prior results do not guarantee or
predict a similar outcome with respect to any future matter. [GN]
EXXON MOBIL: Schall Law Firm Reminds of March 29 Deadline
---------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on Jan. 30 announced the filing of a class action lawsuit against
Exxon Mobil Corporation ("Exxon" or "the Company") (NYSE: XOM) 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 November
6, 2019 and January 14, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before March 29, 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. Exxon forced employees to use completely
unrealistic assumptions about timelines for the Company's well
drilling activities in the Permian Basin. These unrealistic
assumptions artificially inflated the value of the Company's
operations in the area. 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 Exxon,
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. [GN]
FACEBOOK INC: Settlement in BIPA Related Suit Granted Initial OK
----------------------------------------------------------------
Facebook, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on January 28, 2021, for the
fiscal year ended December 31, 2020, that the court granted
preliminary approval of the settlement in the class action suit
related to Biometric Information Privacy Act (BIPA).
On April 1, 2015, a putative class action was filed against the
company in the U.S. District Court for the Northern District of
California by Facebook users alleging that the "tag suggestions"
facial recognition feature violates the Illinois Biometric
Information Privacy Act, and seeking statutory damages and
injunctive relief.
On April 16, 2018, the district court certified a class of Illinois
residents, and on May 14, 2018, the district court denied both
parties' motions for summary judgment.
On May 29, 2018, the U.S. Court of Appeals for the Ninth Circuit
granted the company's petition for review of the class
certification order and stayed the proceeding. On August 8, 2019,
the Ninth Circuit affirmed the class certification order.
On December 2, 2019, the company filed a petition with the U.S.
Supreme Court seeking review of the decision of the Ninth Circuit,
which was denied. On January 15, 2020, the parties agreed to a
settlement in principle to resolve the lawsuit, which provided for
a payment of $550 million by us and was subject to court approval.
On or about May 8, 2020, the parties executed a formal settlement
agreement, and plaintiffs filed a motion for preliminary approval
of the settlement by the district court. On June 4, 2020, the
district court denied the plaintiffs' motion without prejudice.
On July 22, 2020, the parties executed an amended settlement
agreement, which, among other terms, provides for a payment of $650
million by the company.
On August 19, 2020, the court granted preliminary approval of the
settlement. The settlement is subject to final court approval.
Facebook, Inc., incorporated on July 29, 2004, is focused on
building products that enable people to connect and share through
mobile devices, personal computers and other surfaces. The Company
also enables people to discover and learn about what is going on in
the world around them, enables people to share their opinions,
ideas, photos and videos, and other activities with audiences
ranging from their friends to the public, and stay connected by
accessing its products. The Company's products include Facebook,
Instagram, Messenger, WhatsApp and Oculus. The company is based in
Menlo Park, California.
FACEBOOK INC: Settlement in Cyber-Attack Suit Granted Initial OK
----------------------------------------------------------------
Facebook, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on January 28, 2021, for the
fiscal year ended December 31, 2020, that the court granted
preliminary approval of the settlement in the 2018 consolidated
class action suit related to a cyber-attack.
Beginning on September 28, 2018, multiple putative class actions
were filed in state and federal courts in the United States and
elsewhere against us alleging violations of consumer protection
laws and other causes of action in connection with a third-party
cyber-attack that exploited a vulnerability in Facebook's code to
steal user access tokens and access certain profile information
from user accounts on Facebook, and seeking unspecified damages and
injunctive relief.
The actions filed in the United States were consolidated in the
U.S. District Court for the Northern District of California. On
November 26, 2019, the district court certified a class for
injunctive relief purposes but denied certification of a class for
purposes of pursuing damages.
On January 16, 2020, the parties agreed to a settlement in
principle to resolve the lawsuit. On November 15, 2020, the court
granted preliminary approval of the settlement. The settlement is
subject to final court approval.
Facebook said, "We believe the remaining lawsuits are without
merit, and we are vigorously defending them. In addition, the
events surrounding this cyber-attack became the subject of Irish
Data Protection Commission (IDPC) and other government inquiries.
Any such inquiries could subject us to substantial fines and costs,
require us to change our business practices, divert resources and
the attention of management from our business, or adversely affect
our business."
Facebook, Inc., incorporated on July 29, 2004, is focused on
building products that enable people to connect and share through
mobile devices, personal computers and other surfaces. The Company
also enables people to discover and learn about what is going on in
the world around them, enables people to share their opinions,
ideas, photos and videos, and other activities with audiences
ranging from their friends to the public, and stay connected by
accessing its products. The Company's products include Facebook,
Instagram, Messenger, WhatsApp and Oculus. The company is based in
Menlo Park, California.
FACEBOOK INC: Suit Over Platform & User Data Practices Underway
---------------------------------------------------------------
Facebook, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on January 28, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend a putative class action suit related to the company's
Platform & User Data Practices remains pending.
Beginning on March 20, 2018, multiple putative class actions and
derivative actions were filed in state and federal courts in the
United States and elsewhere against the company and certain of its
directors and officers alleging violations of securities laws,
breach of fiduciary duties, and other causes of action in
connection with the company's platform and user data practices as
well as the misuse of certain data by a developer that shared such
data with third parties in violation of the company's terms and
policies, and seeking unspecified damages and injunctive relief.
Beginning on July 27, 2018, two putative class actions were filed
in federal court in the United States against us and certain of our
directors and officers alleging violations of securities laws in
connection with the disclosure of the company's earnings results
for the second quarter of 2018 and seeking unspecified damages.
These two actions subsequently were transferred and consolidated in
the U.S. District Court for the Northern District of California
with the putative securities class action described above relating
to our platform and user data practices.
On September 25, 2019, the district court granted the company's
motion to dismiss the consolidated putative securities class
action, with leave to amend.
On November 15, 2019, a second amended complaint was filed in the
consolidated putative securities class action. On August 7, 2020,
the district court granted the company's motion to dismiss the
second amended complaint, with leave to amend.
On October 16, 2020, a third amended complaint was filed in the
consolidated putative securities class action.
Facebook aid, "We believe these lawsuits are without merit, and we
are vigorously defending them. In addition, our platform and user
data practices, as well as the events surrounding the misuse of
certain data by a developer, became the subject of U.S. Federal
Trade Commission (FTC), state attorneys general, and other
government inquiries in the United States, Europe, and other
jurisdictions. In July 2019, we entered into a settlement and
modified consent order to resolve the FTC inquiry, which was
approved by the federal court and took effect in April 2020. Among
other matters, our settlement with the FTC required us to pay a
penalty of $5.0 billion and to significantly enhance our practices
and processes for privacy compliance and oversight. Any other
government inquiries regarding these matters could subject us to
additional substantial fines and costs, require us to change our
business practices, divert resources and the attention of
management from our business, or adversely affect our business."
Facebook, Inc., incorporated on July 29, 2004, is focused on
building products that enable people to connect and share through
mobile devices, personal computers and other surfaces. The Company
also enables people to discover and learn about what is going on in
the world around them, enables people to share their opinions,
ideas, photos and videos, and other activities with audiences
ranging from their friends to the public, and stay connected by
accessing its products. The Company's products include Facebook,
Instagram, Messenger, WhatsApp and Oculus. The company is based in
Menlo Park, California.
FCA US: Deadline to File Class Certification Bid Set for May 14
---------------------------------------------------------------
In the class action lawsuit captioned as ALFONSO and ARLENE MORAN,
individually and on behalf of a class of similarly situated
individuals, v. FCA US LLC, Case No. 3:17-cv-02594-GPC-AHG (S.D.
Cal.), the Hon. Judge Allison Goddard entered an order granting the
Parties' joint motion for continuing pretrial deadlines as
follows:
1. A Mandatory Settlement Conference (MSC) shall be conducted
via videoconference before Magistrate Judge Allison H.
Goddard on February 12, 2021.
2. The Plaintiff must serve on the Defendant a written
settlement proposal, which must include a specific demand
amount, no later than February 1, 2021.
3. The deadline to file a class certification motion is May
14, 2021.
4. All expert discovery shall be completed by all parties by
March 31, 2021.
FCA US is a North American automaker based in Auburn Hills,
Michigan. It designs, manufactures, and sells or distributes
vehicles under the Chrysler, Dodge, Jeep (TM), Ram, FIAT and Alfa
Romeo brands.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/2LugCBU at no extra charge.[CC]
FEDERAL INSURANCE: Claims v. XenCall in Abramson TCPA Suit Tossed
-----------------------------------------------------------------
In the case, STEWART ABRAMSON, Plaintiff v. FEDERAL INSURANCE
COMPANY, BAY AREA HEALTH, LLC, and 0995316 B.C. LTD. d/b/a XENCALL,
Defendants, Case No. 8:19-cv-2523-T-60AAS (M.D. Fla.), Judge Tom
Barber of the U.S. District Court for the Middle District of
Florida, Tampa Division, granted Xencall's Motion to Dismiss
Plaintiff's First Amended Complaint.
On Aug. 1, 2019, the Plaintiff received a telephone call from
Defendant Bay Area. When Plaintiff answered the phone, a
pre-recorded message played advertising health insurance. After
the Plaintiff clicked through the prompts, he was connected with
Brian Park, who provided information indicating that Bay Area was
selling insurance policies provided by Federal Insurance. The
Plaintiff was neither a customer of Bay Area nor Federal Insurance
and had not consented to receive telemarketing calls prior to
receiving the call.
On Oct. 10, 2019, the Plaintiff filed a class-action lawsuit
against Federal Insurance and Bay Area alleging they violated
Section 227(b) of the Telephone Consumer Protection Act ("TCPA") by
initiating illegal telemarketing calls to the Plaintiff and other
non-consenting individuals. On April 22, 2020, he filed an amended
complaint reiterating these claims and adding XenCall as a
Defendant, alleging XenCall also violated the TCPA by providing Bay
Area the technology to make these calls.
XenCall now moves to dismiss the amended complaint.
XenCall first argues that the Court lacks subject matter
jurisdiction over the matter, citing to Barr v. Am. Ass'n of Pol.
Consultants, Inc., 140 S. Ct. 2335, 2347 (2020) ("AAPC"). The
Court has already considered the argument and concluded that
parties may continue to bring claims under the portions of Section
227(b) unaltered by AAPC. Judge Barber adopts and incorporates the
Court's prior analysis. The motion to dismiss is due to be denied
as to this ground.
XenCall also contends the Court lacks subject matter jurisdiction
because the constitutional standing requirements of Article III are
not satisfied. It contends that the Plaintiff lacks standing
because he has not suffered an injury and, even if he had been
injured, XenCall did not cause his injuries.
Judge Barber finds that the Plaintiff has presented sufficient
facts to confer Article III standing. He alleges that he received
an unsolicited phone call with a pre-recorded message. He further
alleges that he and other call recipients were harmed by these
calls because they were temporarily deprived of legitimate use of
their phones and their privacy was improperly invaded.
Furthermore, these injuries are fairly traceable to XenCall's
alleged conduct. Hence, XenCall's motion to dismiss is accordingly
denied as to this ground.
XenCall next argues that the claims against it should be dismissed
because the Court lacks specific personal jurisdiction. The
parties debate two potential grounds for personal jurisdiction
under the long-arm statute: (1) engaging in business within
Florida, and (2) committing a tortious act in Florida.
In his amended complaint, the Plaintiff alleges the Court has
personal jurisdiction over XenCall because it "assists its
customers, including Bay Area in the district, make automated
telemarketing calls." XenCall rebuts the allegation--and attests
via affidavit--that it never entered into a contract, licensed
telemarketing software, or entered into any business agreement with
Bay Area. This same affidavit also states that XenCall does not
have an office in Florida, nor does it have a license to conduct
business in Florida. All the information submitted in XenCall's
affidavit has been unanswered by the Plaintiff. As Florida's
long-arm statute is to be strictly construed and the Plaintiff
bears the burden of proving personal jurisdiction, Judge Barber
finds the Plaintiff has failed to meet this burden.
Judge Barber is also unaware of any binding or persuasive case law
that addresses whether illegal telemarketing calls made in Florida
to an out-of-state resident constitute a "tortious act within this
state" under the long-arm statute. Nevertheless, he need not reach
a decision on the issue because, even if the requirements of the
long-arm statute are satisfied, constitutional due process is not.
Finally, even though Florida's long-arm statute may permit a state
to assert jurisdiction over an out-of-state defendant, the due
process clause of the United States Constitution prevents courts
from doing so unless exercising jurisdiction comports with due
process. The Plaintiff (a resident of Pennsylvania) alleges
XenCall (a Canadian corporation) violated the TCPA by providing Bay
Area the software used to make illegal telemarketing calls. This
forum has little interest in haling a Canadian corporation into
court in Florida for allegedly providing software used to commit a
tort against a resident of Pennsylvania. Furthermore, the record
indicates the Plaintiff can seek appropriate relief from the
remaining Defendants without subjecting XenCall to the burdens of
transnational litigation. As the burden is on the Plaintiff to
show exercising personal jurisdiction is proper, Judge Barber finds
he has failed to meet this burden.
Accordingly, Defendant XenCall's Motion to Dismiss Plaintiff's
First Amended Complaint is granted. The Plaintiff's claims against
XenCall are dismisseed without prejudice.
A full-text copy of the Court's Jan. 27, 2021 Order is available at
https://tinyurl.com/1f51qrkx from Leagle.com.
FINANCIAL BUSINESS: Brawley Sues Over Misleading Collection Letter
------------------------------------------------------------------
BROOKE N. BRAWLEY, individually and on behalf of all other
similarly situated, Plaintiff v. FINANCIAL BUSINESS AND CONSUMER
SOLUTIONS, INC., d/b/a FBCS, INC., Defendant, Case No.
4:21-cv-00113 (E.D. Mo., January 28, 2021) brings this complaint as
a class action seeking for damages from the Defendant for its
alleged violations of the Fair Debt Collection Practices Act.
The Plaintiff claims that the Defendant contacted her regarding an
alleged debt that was purportedly incurred to "AccuHealth Urgent
Care". Consequently, after she disputed the Defendant's initial
attempt to collect the alleged debt via telephone call on or about
November 3, 2020, the Defendant sent her an initial collection
letter on or about November 4, 2020. The Plaintiff asserts that the
Defendant failed to include in its collection letter the full
notices and disclosures of consumer rights required within 5 days
of an initial communication with a consumer. The Defendant
allegedly makes a pattern and practice of providing statutorily
deficient Validation Notice in an effort to mislead, confuse,
and/or deceive a consumer with respect to their rights to obtain
verification of a debt, in an effort to trick consumer into paying
a debt they would normally dispute, or may not owe.
Financial Business and Consumer Solutions, Inc. d/b/a FBCS, Inc. is
a debt collector. [BN]
The Plaintiff is represented by:
Boris E. Graypel, Esq.
THE LAW OFFICE OF BORIS E. GRAYPEL, LLC
8112 Maryland Ave., Suite 400
St. Louis, MO 63105
Tel: (314) 300-9590
Fax: (314) 754-9305
E-mail: bgraypel@gmail.com
FIRST ADVANTAGE: Garcia Files FCRA Suit in E.D. California
----------------------------------------------------------
A class action lawsuit has been filed against First Advantage
Corporation, et al. The case is styled as Michael Garcia, on behalf
of himself and all others similarly situated v. First Advantage
Corporation, FedEx Corporation, Case No. 1:21-cv-00135-NONE-HBK
(E.D. Cal., Feb. 2, 2021).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
First Advantage Corporation -- https://fadv.com/ -- offers
information services. The Company provides alcohol testing,
workflow management, screening, risk mitigation, employment
screening, post hire monitoring, fleet compliance, and analytical
solutions.[BN]
The Plaintiff is represented by:
Trinette Gragirena Kent, Esq.
LEMBERG LAW, LLC
3219 E. Camelback Rd. #558
Phoenix, AZ 85018
Phone: (480) 247-9644
Fax: (480) 717-4781
Email: tkent@lemberglaw.com
FLEX LTD: Plaintiff Opening Brief Due April 19
----------------------------------------------
Flex Ltd. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on January 29, 2021, for the quarterly
period ended December 31, 2020, that the opening brief on the
appeal made by the plaintiff in the putative class action suit
filed before the Northern District of California, is due on April
19, 2021.
On May 8, 2018, a putative class action was filed in the Northern
District of California against the Company and certain officers
alleging violations of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934, and Rule 10b-5, promulgated thereunder,
alleging misstatements and/or omissions in certain of the Company's
financial results, press releases and SEC filings made during the
putative class period of January 26, 2017 through April 26, 2018.
On October 1, 2018, the Court appointed lead plaintiff and lead
plaintiff's counsel in the case. On November 28, 2018, lead
plaintiff filed an amended complaint alleging misstatements and/or
omissions in certain of the Company's SEC filings, press releases,
earnings calls, and analyst and investor conferences and expanding
the putative class period through October 25, 2018.
On April 3, 2019, the Court vacated its prior order appointing lead
plaintiff and lead plaintiff's counsel and reopened the lead
plaintiff appointment process. On September 26, 2019, the Court
appointed a new lead plaintiff and lead plaintiff's counsel in the
case.
On November 8, 2019, lead plaintiff filed a further amended
complaint. On December 4, 2019, defendants filed a motion to
dismiss the amended complaint. On May 29, 2020, the Court granted
defendants' motion to dismiss without prejudice and gave lead
plaintiff 30 days to amend.
On June 29, 2020, lead plaintiff filed a further amended complaint.
On July 27, 2020, defendants filed a motion to dismiss the amended
complaint. On December 10, 2020, the Court granted defendants'
motion to dismiss with prejudice and entered judgment in favor of
defendants.
On January 7, 2021, lead plaintiff filed a notice of appeal to the
Ninth Circuit Court of Appeals.
Lead plaintiff's opening appeal brief is due April 19, 2021, and
defendants' answering brief is due May 19, 2021. The Company
believes that the claims are without merit and intends to
vigorously defend this case.
Flex Ltd. provides design, engineering, manufacturing, and supply
chain services and solutions to original equipment manufacturers
worldwide. It operates through High-Reliability Solutions,
Industrial and Emerging Industries, Communications & Enterprise
Compute, and Consumer Technologies Group segments. The company was
formerly known as Flextronics International Ltd. and changed its
name to Flex Ltd. in September 2016. Flex Ltd. was founded in 1990
and is based in Singapore.
FLORIDA SOUTHERN: Deadline For Class Status Bid Extended to April 2
-------------------------------------------------------------------
In the class action lawsuit captioned as Salerno v. Florida
Southern College, Case No. 8:20-cv-01494 (M.D. Fla.), the Hon.
Judge James S. Moody, Jr. entered an order granting the Plaintiff's
unopposed motion to extend class certification deadline.
The Plaintiff's deadline to move for class certification is
extended until April 2, 2021. The Defendant's opposition to the
Plaintiff's class certification motion shall be due May 14, 2021.
The Plaintiff's reply in support of her motion for class
certification shall be due June 11, 2021, says the Court.
The nature of suit states Contract - Other Contract.
Florida Southern College is a private college in Lakeland,
Florida.[CC]
FLOWCO PRODUCTION: Keating FLSA Conditional Status Bid Tossed
-------------------------------------------------------------
In the class action lawsuit captioned as DEAN KEATING, individually
and on behalf of all others similarly situated, v. Case No.
7:20-cv-00122-DC-RCG (W.D. Tex. ), the Hon. Judge Ronald C. Griffin
entered an order denying without prejudice the plaintiffs' motion
for Fair Labor Standards Act(FLSA) conditional certification and
notice.
The Court said, "District courts in the Fifth Circuit have long
employed the Lusardi two-step approach when considering motions for
conditional certification under the FLSA. See Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987). Both the Plaintiffs' Motions
and Defendants' Responses are premised on the application of the
Lusardi two-step approach to conditional certification. However, on
January 12, 2021 in Swales v. KLLM Transport Services, the Fifth
Circuit enunciated its rejection of Lusardi. F.3d, No. 19-60847,
2021 WL 98229 (5th Cir. Jan. 12, 2021). The conditional
certification standard articulated by the Fifth Circuit in Swales
now requires the district court to:
"[I]dentify, at the outset of the case, what facts and legal
considerations will be material to determining whether a
group of "employees" is "similarly situated." And then it
should authorize preliminary discovery accordingly. The
amount of discovery necessary to make that determination will
vary case by case, but the initial determination must be
made, and as early as possible. In other words, the district
court, not the standards from Lusardi, should dictate the
amount of discovery needed to determine if and when to send
notice to potential opt-in plaintiffs."
Consequently, the Court finds it necessary to deny without
prejudice Plaintiffs' Motions for Conditional Certification and
Notice, so as to allow refiling when appropriate. Further, the
Court will set a status conference in conformity with Swales under
forthcoming, separate order.
Flowco specializes in the design, installation and optimization of
gas lift and plunger lift systems, made in the USA, serving oil and
gas basins throughout North America.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3jjl6Yl at no extra charge.[CC]
FORBES MEDIA: Sanchez Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Forbes Media LLC. The
case is styled as Christian Sanchez, on behalf of himself and all
others similarly situated v. Forbes Media LLC, Case No.
1:21-cv-00932 (S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Forbes Media, LLC -- https://www.forbes.com/ -- provides magazine
publishing and printing services. The Company offers a range of
business magazines and online articles with news and information
related to finance, international business, marketing, law, taxes,
science, technology, communications, investments, and
entrepreneurship.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
FUSION POWER: Winters Files TCPA Suit in D. Arizona
---------------------------------------------------
A class action lawsuit has been filed against Fusion Power LLC. The
case is styled as Richard Winters, Jr., individually and on behalf
of all others similarly situated v. Fusion Power LLC, Case No.
2:21-cv-00188-MTM (D. Ariz., Feb. 2, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Fusion Power -- https://www.fusionpowerco.com/ -- is one of
Arizona's growing solar companies.[BN]
The Plaintiff is represented by:
David James McGlothlin, Esq.
Ryan Lee McBride, Esq.
KAZEROUNI LAW GROUP APC
2633 E Indian School Rd., Ste. 460
Phoenix, AZ 85016
Phone: (602) 900-1288
Email: david@kazlg.com
ryan@kazlg.com
FUTURE MOTION: Blind Users Can't Access Web Site, Angeles Says
--------------------------------------------------------------
JENISA ANGELES, on behalf of herself and all others similarly
situated v. FUTURE MOTION, INC., Case No. 1:21-cv-00818-VEC
(S.D.N.Y. Jan. 29, 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.
According to the complaint, the Defendant's denial of full and
equal access to its Website, www.onewheel.com, and therefore denial
of its goods and services offered thereby, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act.
Because the Defendant's Website is not equally accessible to blind
and visually impaired consumers, it violates the ADA, the suit
says.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read Website content using his
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet this definition have limited vision.
Others have no vision.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind's 2015 report, approximately 400,000
visually impaired persons live in the State of New York.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
Defendant's Website will become and remain accessible to blind and
visually-impaired consumers.
The Defendant is a motorized skateboard manufacturing company that
owns and operates www.onewheel.com, offering features which should
allow all consumers to access the goods and services and which the
Defendant ensures the delivery of such goods throughout the United
States, including New York State.[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
GC SERVICES: Ct. Directs Parties to Seek Leave for Expert Discovery
-------------------------------------------------------------------
In the class action lawsuit captioned as FRANCIS DIDONATO, v. GC
SERVICES LIMITED PARTNERSHIP, et al., Case No. 1:20-cv-02154-LGS
(S.D.N.Y.), the Hon. Judge Lorna G. Schofield entered an order
that:
-- if any Party during the course of summary judgment
briefing determines that it will need expert testimony and
thus needs to reopen expert discovery, that Party shall
seek leave from the Court via letter motion at least two
weeks before their memorandum of law related to the
summary judgment motion is due.
-- the application shall include a proposed schedule and
state whether the adverse Party or Parties consent to the
application; and
-- if any Party determines that it needs expert testimony at
trial and thus needs to reopen expert discovery, that
Party shall seek leave from the Court via letter motion as
soon as possible.
The Plaintiff filed a motion for class certification and did not
rely on any expert opinion. The motion is due to be fully briefed
on February 16, 2021. Pursuant to the Second Amended Civil Case
Management Plan and Scheduling Order, the deadline for the
completion of all expert discovery was December 24, 2020. The
Parties did not engage in expert discovery. The Plaintiff seeks
leave to reopen expert discovery should the need arise, which
Defendants oppose.
GC Services LP provides adjustment services on claims and other
insurance-related issues.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/39UogPp at no extra charge.[CC]
GEMMA BY WP DIAMONDS: Hedges Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Gemma By WP Diamonds
LLC. The case is styled as Donna Hedges, on behalf of herself and
all other persons similarly situated v. Gemma By WP Diamonds LLC,
Case No. 1:21-cv-00982-ALC (S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Gemma by WP Diamonds -- https://gemmabywpd.com/ -- sells new,
unworn and pre-owned watches and jewelry.[BN]
The Plaintiff is represented by:
Justin A. Zeller, Esq.
THE LAW OFFICE OF JUSTIN ALEXANDER ZELLER, P.C.
277 Broadway, Suite 408
New York, NY 10007
Phone: (212) 229-2249
Fax: (212) 229-2246
Email: Jazeller@zellerlegal.com
GENERAL ELECTRIC: Gets Dismissal of Most of Shareholder Lawsuit
---------------------------------------------------------------
Jonathan Stempel at Reuters reports that a U.S. judge in Manhattan
has dismissed most but not all of a shareholder lawsuit accusing
General Electric Co of concealing billions of dollars of insurance
liabilities and using questionable accounting to prop up its power
business.
In a Friday night decision, U.S. District Judge Jesse Furman
dismissed fraud claims based on GE's alleged misrepresentations
about its long-term care insurance portfolio, and most claims
concerning long-term service agreements in its power division.
The judge allowed shareholders to pursue claims that Boston-based
GE should have disclosed its reliance on factoring, or the sale of
future revenue for cash, and to pursue some claims against a former
GE chief financial officer, Jeffrey Bornstein.
Furman's 34-page decision followed GE's agreement on Dec. 9 to pay
$200 million to settle U.S. Securities and Exchange Commission
charges it misled investors about its insurance and power
businesses.
The shareholders, including pension funds and other investors,
asked Furman to treat the SEC settlement as proof GE had misled
them, while the defendants said the judge could infer they had no
intent to defraud. Furman rejected both suggestions.
Lawyers for the shareholders did not immediately respond to
requests for comment. A GE spokeswoman did not immediately respond
to requests for comment on behalf of the defendants, who include
former Chief Executive Jeffrey Immelt.
GE is in a multiyear turnaround focused on improving cash flow,
cutting costs and shedding some units, while retaining aviation,
power generation, renewable energy and other businesses.
The proposed class action covers shareholders from February 2013 to
January 2018, when GE took a surprise $6.2 billion charge related
to its insurance business. Its share price fell by roughly one-half
in the last 18 months of the class period.
Furman had in August 2019 dismissed large portions of an earlier
version of the lawsuit.
The case is Sjunde AP Fonden et al v General Electric Co et al,
U.S. District Court, Southern District of New York, No. 17-08457.
[GN]
GOJO INDUSTRIES: Hussin's Admission Pro Hac Vice in Aleisa Denied
-----------------------------------------------------------------
In the cases, MANAL ALEISA, et al., Plaintiffs v. GOJO INDUSTRIES,
INC., Defendant. MAGDIELA GONZALEZ, et al., Plaintiffs v. GOJO
INDUSTRIES, INC., Defendant, Case Nos. 5:20-cv-2383, 5:20-cv-2448
(N.D. Ohio), Judge J. Philip Calabrese of the U.S. District Court
for the Northern District of Ohio, Eastern Division, denied
attorney Tammy Hussin's motion for admission pro hac vice.
In these consolidated putative class actions alleging that the
marketing of Purell hand sanitizer violates California and New York
law, Ms. Hussin seeks admission pro hac vice to represent the
Plaintiffs before the Court.
Judge Calabrese opines that no authority he has located confers a
right on Ms. Hussin or the Plaintiffs to have the pending motion
for admission pro hac vice granted if Ms. Hussin meets all the
requirements of the Local Rule. Even if she does, the Court
retains the discretion to determine whether to grant pro hac vice
status.
Ms. Hussin supplies a certificate of standing from the State Bar of
California. The certificate reflects that, after admission to the
California bar in 1991, Ms. Hussin registered with inactive status
from Jan. 1, 1996 to September 1999, when the California Supreme
Court suspended her from the practice of law for nonpayment of
fees. The suspension remained in effect until 2007 when she repaid
the outstanding fees and returned to active status.
Of serious concern is Ms. Hussin's affidavit. It contains two
false statements and one material defect. First, in Paragraph 4,
Ms. Hussin states that "I have never been disbarred or suspended
from practice before any court." The certificate of standing
contradicts her assertion. Second, Paragraph 3 recites that Ms.
Hussin was admitted in 2007. However, the certificate of standing
discloses that she was admitted to practice in California in 1991,
as does Ms. Hussin's website. The paragraph suggests that Ms.
Hussin attempted to conceal her previous suspension.
These false statements give Judge Calabrese grave concern about Ms.
Hussin's candor, reinforced by the defect in her affidavit. Local
Rule 83.5(h) calls for an affidavit or declaration--either way, a
statement under oath or penalty of perjury. Ms. Hussin submitted
neither. Though formally styled an affidavit, she did not have her
affidavit notarized or comply with the requirements of 28 U.S.C.
Section 1746. The defect suggests that Ms. Hussin sought to
minimize any potential consequences from making false statements to
the Court in her motion for admission pro hac vice. Because her
website also lists that she is admitted to practice in "state and
federal courts in Michigan and Colorado," on inactive status, Judge
Calabrese does not know whether she is withholding any additional
information that may adversely affect her motion for admission pro
hac vice.
Given these concerns, Judge Calabrese afforded Ms. Hussin an
opportunity to address the statements she submitted to the Court at
the status conference held on the record (by telephone due to the
Covid-19 pandemic) on Jan. 25, 2021. Ms. Hussin attributed these
errors to a new paralegal and otherwise sought to downplay or
dismiss their significance.
On the whole, the record leaves Judge Calabrese with grave concern
about Ms. Hussin's candor and ability to comply with the rules of
practice. Against the backdrop of this record, and mindful of the
important interests at stake, he takes up Ms. Hussin's motion for
admission pro hac vice. On the one hand, he is reluctant to
interfere with the Plaintiffs' choice of counsel and with the
profession of an attorney, particularly because the underlying
suspension in California is stale and does not appear to involve
unethical conduct. But in the putative class action Plaintiffs
have multiple counsel, diminishing this consideration to a degree.
On the other hand, the ultimate inquiry under the law of the
Circuit turns on whether an attorney seeking admission pro hac vice
possesses the ethical and professional competence of an officer of
the court. On this question, the record requires the Court to make
a difficult determination.
On balance, Judge Calabrese finds that the record shows Ms. Hussin
does not evidence the standards of an officer of the Court.
Ultimately, Ms. Hussin bears responsibility for documents submitted
to the Court bearing her signature, but she sought to dismiss or
shift that responsibility to subordinate. Doing so did nothing to
mitigate Judge Calabrese's grave concern about her candor and
ability to follow the rules of the Court in the matter, which
presages worse to come. Beyond the waste of time and judicial
resources already spent on the matter, the proper and orderly
administration of justice leads the Judge to deny Ms. Hussin's
motion for admission pro hac vice.
A full-text copy of the Court's Jan. 27, 2021 Opinion & Order is
available at https://tinyurl.com/1m4je5m6 from Leagle.com.
GOODRX HOLDINGS: Vincent Wong Reminds of Feb. 16 Deadline
---------------------------------------------------------
The Law Offices of Vincent Wong announce that class actions have
commenced on behalf of certain shareholders in the following
companies. If you suffered a loss you have until the lead plaintiff
deadline to request that the court appoint you as lead plaintiff.
There will be no obligation or cost to you.
GoodRx Holdings, Inc (NASDAQ:GDRX)
If you suffered a loss, contact us
at:http://www.wongesq.com/pslra-1/goodrx-holdings-inc-loss-submission-form?prid=12557&wire=1
Lead Plaintiff Deadline: February 16, 2021
Class Period: September 23, 2020 - November 16, 2020
Allegations against GDRX include that: at the time of the IPO,
unbeknownst to investors, Amazon.com, Inc. was developing and would
soon introduce its own online and mobile prescription medication
ordering and fulfillment service that would directly compete with
GoodRx. Defendants timed the IPO so that it was priced before
Amazon announced its online pharmaceutical business to facilitate
the IPO and create artificial demand for the common shares sold
therein, as well to maximize the amount of money the Company and
the selling stockholders could raise in the IPO. Given defendants'
knowledge of Amazon's intention to enter the online pharmaceutical
business, and their misleading statements about GoodRx's
competitive position made contemporaneously with that knowledge,
defendants' materially false and/or misleading statements alleged
herein were made willfully and caused GoodRx common stock to trade
at artificially inflated prices during the Class Period.
To learn more contact Vincent Wong, Esq. either via email
vw@wongesq.com or by telephone at 212.425.1140.
Vincent Wong, Esq. is an experienced attorney who has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
GOOGLE LLC: Faces HD Media Antitrust Suit Over Digital Ad Monopoly
------------------------------------------------------------------
William Gallagher, writing for Apple Insider, reports that West
Virginia's HD Media has filed an antitrust complaint against Google
and Facebook, claiming that they conspired to monopolize digital
advertising and so endanger local newspapers.
Despite Google recently announcing it would pay $1 billion to news
publishers, a newspaper company has filed what it says is the first
antitrust suit against Google and Facebook over digital
advertising. HD Media, which publishes seven newspapers, accuses
the two companies of entering into a secret agreement.
According to Editor & Publisher Magazine, the suit specifies that
this secret agreement, codenamed "Jedi Blue," manipulated online
advertising auctions. It also claims that Google's monopolization
of the digital advertising market is threatening local newspapers
across the US.
"The freedom of the press is not at stake," the suit reportedly
says. "The press itself is at stake."
"We invite every other newspaper in America to join this cause," HD
Media managing partner Doug Reynolds told Editor & Publisher
Magazine. "We are fighting not only for the future of the press but
also the preservation of our democracy."
Google's separate $1 billion offer concerns its planned Google News
Showcase project. Begun in Brazil and Germany, the project has
expanded to Android users across Australia, the UK, Canada and
more.
It offers packages of news stories coupled to video and graphics
content. Google says the aim is to introduce readers to news
outlets that they may then subscribe to. [GN]
GOOGLE LLC: JLaSalle Sues Over 'Display Ad Stack' Market Monopoly
-----------------------------------------------------------------
JLASALLE ENTERPRISES LLC, individually and on behalf of all others
similarly situated v. GOOGLE LLC, Case No. 5:21-cv-00748 (Jan. 29,
2021) is a class action lawsuit brought on behalf of the Plaintiff
and and on behalf of similarly situated publishers that sold
digital Display Ad inventory through Google's AdSense targeting
consumers in the United States since March 11, 2008 against Google,
seeking treble damages and injunctive relief for Google's
longstanding and continuing violations of sections 1 and 2 of the
Sherman Act.
The suit arises out of Google's exclusionary and anticompetitive
campaign to obtain and maintain monopolies in several distinct, but
closely related, relevant markets, including (a) publisher ad
server services ("Publisher Ad Servers"); (b) display ad network
services ("Ad Networks"); (c) display ad exchanges ("Exchanges");
and (d) display ad buying tools ("Ad Buying Tools") (collectively,
the "Relevant Markets"). These markets constitute what is referred
to as the "Display Ad Stack."
While Google got its start in Search, today it is an advertising
company and makes billions of dollars a year by collecting
information about individual Internet users and then using that
information to help advertisers find suitable persons to whom they
can send direct, targeted ads. Google obtains user information from
a number of sources, including through its Google Search service
and Chrome web browser. Thanks to these and other Google offerings,
Google knows when individual users log on, the Websites they visit,
the things they search for, the products they buy, and other
valuable information, says the complaint.
As a result of the alleged actions, Google has control over a
dominant share of the Display Ad inventory on which advertisers
will bid as well as over which advertisers can participate in the
most significant auctions and how publishers prioritize and compare
different sources to identify the advertiser that will ultimately
"win" the right to place an ad in a particular ad slot. Google's
exclusionary conduct has had substantial anticompetitive effects in
the Relevant Markets and has harmed publishers, the Plaintiff
alleges.
Display Ads are ads that appear on a website, often in a side
window or some other designated space on the page.
Plaintiff JLaSalle is a New York limited liability company with its
principal place of business in Bellmore, New York. JLaSalle
operates an ad-supported website that directly purchases publisher
and advertiser services from Google, including through Google's
AdSense.
Google is owned by Alphabet Inc., a publicly traded company
incorporated and existing under the laws of the State of Delaware
and headquartered in Mountain View, California. Google engages in,
and its activities substantially affect, interstate trade and
commerce. Google provides a range of products and services that are
marketed, distributed, and offered to consumers throughout the
United States and internationally.[BN]
The Plaintiff is represented by:
Robert J. Gralewski, Jr., Esq.
Daniel Hume, Esq.
David Bishop, Esq.
Andrew McNeela, Esq.
KIRBY MCINERNEY LLP
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: (619) 398-4340
E-mail: bgralewski@kmllp.com
dhume@kmllp.com
dbishop@kmllp.com
amcneela@kmllp.com
- and -
Thomas M. Hnasko, Esq.
Michael E. Jacobs, Esq.
HINKLE SHANOR LLP
218 Montezuma Avenue
Sante Fe, NM 87501
Telephone: (505) 982-4554
E-mail: thnasko@hinklelawfirm.com
mjacobs@hinklelawfirm.com
- and -
Kent Williams, Esq.
WILLIAMS LAW FIRM
1632 Homestead Trail
Long Lake, MN 55356
Telephone: (612) 940-4452
Facsimile: (952) 283-1525
E-mail: williamslawmn@gmail.com
GOVERNMENT EMPLOYEES: Deadline for Class Status Bid Extended
------------------------------------------------------------
In the class action lawsuit captioned as MCIVER, et al., v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, et al., Case No.
1:20-cv-00839 (M.D.N.C.), the Hon. Judge Loretta C. Biggs entered
an order granting unopposed motion extending Plaintiff's deadline
for moving for class certification and staying that deadline (as
otherwise established by Local Rule 23.1(b)) pending establishment
of scheduling order.
The nature of suit states Contract -- Insurance.
The Government Employees Insurance Company is an American auto
insurance company with headquarters in Maryland. It is the second
largest auto insurer in the United States, after State Farm, which
was on East Jefferson Road, and owned by in Canada, Desjardins
Insurance.[CC]
GOVERNMENT EMPLOYEES: Extension for Class Status Filing Sought
--------------------------------------------------------------
In the class action lawsuit captioned as ALICIA MCIVER and NATASHA
PIERCE on behalf of themselves and all others similarly situated,
v. GOVERNMENT EMPLOYEES INSURANCE COMPANY AND GEICO INDEMNITY
COMPANY, Case No. 1:20-cv-00839-LCB-LPA (M.D.N.C.), the Plaintiffs
file their unopposed motion for an extension of time for them to
file their motion for class certification.
The Plaintiffs contend that their application of the 90-day
deadline for filing a motion for class certification be stayed
until after the parties submit a Rule 26(f) report and the Court
enters a scheduling order.
The Plaintiffs filed a complaint on July 21, 2020 in Guilford
County Superior Court. The Defendants filed a Notice of Removal to
this court on September 11, 2020. The Plaintiffs filed an amended
complaint in this Court on November 3, 2020. The Defendants filed a
motion to dismiss the Plaintiffs' amended complaint on November 17,
2020. The Plaintiffs filed their Opposition to Defendants' Motion
to Dismiss on January 5, 2021. The Defendants filed their Reply to
Plaintiffs' Opposition on January 19, 2021. The Court's Order on
Defendants' Motion to Dismiss is pending.
The Government Employees Insurance Company is an American auto
insurance company with headquarters in Maryland. It is the second
largest auto insurer in the United States, after State Farm, which
was on East Jefferson Road, and owned by in Canada, Desjardins
Insurance.
A copy of the Plaintiffs' motion dated Jan. 27, 2020 is available
from PacerMonitor.com at https://bit.ly/3tt1Z2Q at no extra
charge.[CC]
Counsel for the Plaintiff and Putative Class, are:
Jeremy R. Williams, Esq.
Daniel K. Bryson, Esq.
WHITFIELD BRYSON LLP
900 W. Morgan Street
Raleigh, NC 27603
Telephone: (919) 600-5000
Facsimile: (919) 600-5035
E-mail: dan@whitfieldbryson.com
jeremy@whitfieldbryson.com
- and -
Kopelowitz Ostrow, Esq.
Jonathan Streisfeld, Esq.
1 W. Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
E-mail: streisfeld@kolawyers.com
ostrow@kolawyers.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
19495 Biscayne Blvd No. 607
Aventura, FL 33180
Telephone: 305-975-3320
E-mail: scott@edelsberglaw.com
- and -
Andrew Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 N.E 1st Ave Ste. 1205
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
- and -
Rachel Dapeer, Esq.
DAPEER LAW, P.A.
300 S. Biscayne Blvd, No. 2704
Miami, FL 33131
Telephone: 305-610-5223
E-mail: rachel@dapeer.com
GRAMMARLY INC: Sanchez Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Grammarly, Inc. The
case is styled as Christian Sanchez, on behalf of himself and all
others similarly situated v. Grammarly, Inc., Case No.
1:21-cv-00933-VSB (S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Grammarly -- https://www.grammarly.com/ -- is an American-based
technology company that provides a digital writing assistance tool
based on artificial intelligence and natural language
processing.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
GREATBANC TRUST: Clare Suit Asserts Fund Mismanagement
------------------------------------------------------
Amanda Clare, on behalf of a class of all other persons similarly
situated, Plaintiff, v. Greatbanc Trust Company, Long Point
Capital, Inc., Long Point Capital Fund II, L.P., Long Point Capital
Partners II, L.P., Long Point Capital Fund III, L.P., and Long
Point Capital Partners III, L.P., Defendants, Case No. 21-cv-00367,
(N.D. Ill., January 21, 2021), is brought under Sections 404, 406,
409, 410, and 502(a) of the Employee Retirement Income Security Act
of 1974 (ERISA), as amended, for losses suffered by the
participants in the EYP Employee Stock Ownership Plan and their
beneficiaries caused by GreatBanc when it caused the plan to buy
shares of EYP for more than fair market value in 2016.
GreatBanc Trust Company is the trustee for the EYP Employee Stock
Ownership Plan when it acquired shares of EYP Group Holdings, Inc.
in 2016. Clare is against selling shareholders Long Point Capital,
Inc. and its affiliates Long Point Capital Fund II, L.P., Long
Point Capital Partners II, L.P., Long Point Capital Fund III, L.P.
and Long Point Capital Partners III, L.P. and with GreatBanc.
Clare is a participant in the EYP Employee Stock Ownership Plan and
has invested in shares of EYP allocated to her account in the
plan.
EYP (previously doing business as EYP Holdings, Inc.), adopted the
plan effective January 1, 2016. On June 28, 2016, in simultaneous
or nearly simultaneous transactions, EYP purchased its common stock
from the Long Point Group and minority shareholders and the plan
purchased 1,000,000 shares of EYP's common stock from EYP for
$44,286,647. Said stock purchase was financed by a term note
payable owed to EYP by the plan of the same amount and to be repaid
over 40 years, at an interest rate of 3%.
Said transaction allegedly allowed the selling shareholders to
unload their interests in EYP above fair market value and saddle
the plan with tens of millions of dollars of debt over a 40-year
repayment period to finance the transaction.
EYP is an architecture and engineering firm developing design
solutions for clients in higher education, government, healthcare,
and science and technology. [BN]
Plaintiff is represented by:
Patrick O. Muench, Esq.
BAILEY & GLASSER LLP
333 S. Wabash Ave., Suite 2736
Chicago, IL 60604
Telephone: (312) 995-7143
Facsimile: (304) 342-1110
Email: pmuench@baileyglasser.com
- and -
Gregory Y. Porter, Esq.
Ryan T. Jenny, Esq.
BAILEY GLASSER LLP
1055 Thomas Jefferson Street, NW, Suite 540
Washington, DC 20007
Phone: (202) 463-2101
Facsimile: (202) 463-2103
Email: gporter@baileyglasser.com
rjenny@baileyglasser.com
GSC LIMITED: Fabricant et al. Sue Over Unsolicited Text Messages
----------------------------------------------------------------
TERRY FABRICANT and ABANTE ROOTER AND PLUMBING, INC., individually
and on behalf of all others similarly situated, Plaintiffs v. GSC
LIMITED d/b/a GREYSTONE CAPITAL 1, and DOES 1 through 10,
inclusive, and each of them, Defendant, Case No. 2:21-cv-00780
(C.D. Cal., January 28, 2021) is a class action complaint brought
against the Defendant for its alleged negligent and willful
violations of the Telephone Consumer Protection Act.
According to the complaint, the Defendant sent unsolicited text
messages to the Plaintiffs on their cellular telephone number by
using an "automatic telephone dialing system" (ATDS) in an attempt
to promote its services. The Defendant allegedly did not possess
the Plaintiff's "prior express consent" to receive unsolicited
calls and text messages using an ATDS on their cellular
telephones.
The complaint asserts that the Defendant's unsolicited text
messages have caused harm to the Plaintiffs and other similarly
situated individuals by causing them to incur certain charges or
reduced telephone time for which they had previously paid, and
invading their privacy.
The Plaintiffs seek an injunctive relief prohibiting such unlawful
conduct in the future, statutory and treble damages, and any other
relief that the Court deems just and proper.
GSC Limited d/b/a Greystone Capital 1 is a business financing
company. [BN]
The Plaintiffs are represented by:
Todd M. Friedman, Esq.
Adrian M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (323) 306-4234
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
GTT COMMUNICATIONS: Faces Grigore Suit Over Stock Price Drop
------------------------------------------------------------
SORIN GRIGORE, Individually and on behalf of all others similarly
situated v. GTT COMMUNICATIONS, INC., RICHARD D. CALDER, JR., ERNIE
ORTEGA, MICHAEL T. SICOLI, DANIEL M. FRASER, and STEVEN BERNS, Case
No. 2:21-cv-00839 (C.D. Cal., Jan. 29, 2021) is a federal
securities class action brought on behalf of all persons or
entities that purchased or otherwise acquired GTT publicly traded
securities from May 5, 2016 through November 9, 2020, inclusive
(the "Class Period"), seeking to pursue remedies under the
Securities Exchange Act of 1934.
The Plaintiff alleges that the Defendants violated the Exchange Act
by publishing false and misleading statements to artificially
inflate the Company's stock price.
According to the complaint, throughout the Class Period, GTT stated
that its internal controls over financial reporting were
"effective" and provided "reasonable assurance" that all required
information was being disclosed. In truth, GTT's internal controls
over financial reporting were inadequate, which led to years of
inaccurate financial reporting, including failing to make adequate
adjustments to the Company's Cost of Telecommunication Services and
failing to recognize certain expenses, the suit says.
As a result of GTT's alleged inadequate internal controls, the
Company announced after market hours on August 10, 2020 that it
would delay its filing of its quarterly report for the quarter
ended June 30, 2020. The Company stated it had identified "certain
issues related to the recording and reporting of Cost of
Telecommunications Services and related internal controls." On this
news, GTT shares fell by $0.65, or over 11%, from closing at $5.61
on August 10, 2020 to close at $4.96 on August 11, 2020.
On November 9, 2020, the Company announced its quarterly report for
the quarter ended September 30, 2020 would be delayed as well. The
Company stated the delay was caused by the ongoing review and
"examining the accounting for Cost of Telecommunications Services
and a number of issues in connection with the Company's previously
issued financial statements." On this news, GTT shares fell by
$0.04, or 1%, to close at $3.96 on November 9, 2020.
The Plaintiff and the other Class members have suffered significant
damages due to the Defendants' false and misleading statements and
omissions, added the suit.
The Plaintiff purchased the Company's securities at artificially
inflated prices during the Class Period and was damaged upon the
revelation of the alleged corrective disclosure.
GTT operates a global communications network, providing
telecommunications services to large, multinational enterprises,
carriers, and governments across five continents. The Individual
Defendants are officers of the Company.[BN]
The Plaintiff is represented by:
Jennifer Pafiti, Esq.
POMERANTZ, LLP
1100 Glendon Avenue, 15th Floor
Los Angeles, CA 90024
Telephone: (310) 405-7190
Fax Number: (917) 463-1044
E-mail: jpafiti@pomlaw.com
- and -
Peretz Bronstein, Esq.
BRONSTEIN, GEWIRTZ &
GROSSMAN, LLC
60 East 42nd Street, Suite 4600
New York, NY 10165
Telephone: (212) 697-6484
Facsimile: (212) 697-7296
E-mail: peretz@bgandg.com
HALL'S SOUTHERN: Noble FLSA Class Suit Gets Settlement Approval
---------------------------------------------------------------
In the class action lawsuit captioned as Justin Noble, on behalf of
himself and all others similarly situated, v. Hall's Southern
Kitchens, LLC d/b/a Hall's Chop House, Case No. 2:20-cv-01792-RMG
(D.S.C.), the Hon. Judge Richard Mark Gergel entered an order
granting the motion for settlement approval as follows:
1. Final class certification pursuant to 29 U.S.C. section
216(b) of the Fair Labor Standards Act for settlement
purposes.
2. The Settlement and Release Agreement, with the Settlement
Statement, is approved in its entirety as a fair and
reasonable resolution negotiated at arm's-length of the
parties' bona fide dispute. The Settlement and Release
Agreement provides as follows:
-- a gross settlement of $20,000;
-- individual payments to Plaintiffs as set forth in the
Settlement Statement
-- a Service Award of $200 to Named Plaintiff Justin
Noble; and
-- $15,000 in Plaintiffs' counsel's fees plus $560 in
Plaintiffs' counsel's costs and expenses.
3. All claims in this action are dismissed with prejudice.
4. The Court retains jurisdiction to enforce the terms of the
parties' Settlement and Release Agreement and the
Settlement Statement.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/39SO1j8 at no extra charge.[CC]
HEALTHCARE REVENUE: Santos Files Suit in N.D. California
--------------------------------------------------------
A class action lawsuit has been filed against Healthcare Revenue
Recovery Group, LLC et al. The case is captioned as Omar Santos,
Amanda Clements and Ethan Dornhelm, on behalf of themselves and all
others similarly situated v. Healthcare Revenue Recovery Group, LLC
(d/b/a ARS Account Resolution Services) and Experian Information
Solutions, Inc., Case No. 3:21-mc-80008 (N.D. Cal., January 13,
2021).
The nature of the lawsuit is stated as a civil miscellaneous case.
Healthcare Revenue Recovery Group, LLC provides collection
services to health care sector. The Company offers payment
processing, accounts information, collection, and other related
services. Healthcare Revenue Recovery Group serves customers in the
United States.[BN]
Plaintiffs Omar Santos and Amanda Clements appear pro se.
Plaintiff Ethan Dornhelm is represented by:
Michael Jaeger, Esq.
FAEGRE DRINKER BIDDLE & REATH LLP
1800 Century Park East, Suite 1800
Los Angeles, CA 90067
Telephone: (310) 203-4000
Facsimile: (310) 229-1285
E-mail: michael.jaeger@faegredrinker.com
HONEYDEW PRODUCTS: Palazzo Files Suit in E.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Honeydew Products
LLC. The case is styled as Margherite Palazzo, individually and on
behalf of all others similarly situated v. Honeydew Products LLC,
Case No. 2:21-cv-00576 (E.D.N.Y., Feb. 3, 2021).
The case arises from alleged fraud claims or violations of the
Truth in Lending Act.
Honeydew Products -- https://honeydewproducts.com/ -- offers
personal care products from shampoo, creams, hair growth and
nutrition.[BN]
The Plaintiff is represented by:
Jason P. Sultzer, Esq.
THE SULTZER LAW GROUP
85 Civic Center Plaza, Suite 200
Poughkeepsie, NY 12601
Phone: (845) 483-7100
Email: sultzerj@thesultzerlawgroup.com
HSN INC: Underhill Files Civil Suit in Florida Circuit Court
------------------------------------------------------------
A class action lawsuit has been filed against HSN Inc. The case is
styled as Francine Underhill, on behalf of all others similarly
situated v. HSN INC., Case No. 16-2021-CA-000290-XXXX-MA (Fla.
Cir., Duval County, Jan. 14, 2021).
The lawsuit is a circuit civil case.
HSN, Inc. provides online shopping. The Company retails computers
and electronics, fashion items, home and kitchen goods, jewelry,
and health, beauty, and fitness products through its shows, which
are broadcast via cable, satellite, and network television. HSN
serves customers worldwide. [BN]
The Plaintiff is represented by:
Shamis Andrew John, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Ave Ste 1205
Miami, FL 33132-2408
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
HUGHES WATTERS: Texas Court Narrows FDCPA Claims in Salermo Suit
----------------------------------------------------------------
The U.S. District Court for the Southern District of Texas issued a
Memorandum and Order granting in part and denying in part HWA's
motion to dismiss the lawsuit titled LUCERO SALERMO, Plaintiff v.
HUGHES WATTERS & ASKANASE LLP, et al., Defendants, Case No.
4:19-cv-02791 (S.D. Tex.).
Plaintiff Salermo incurred a loan with Cy-Fair Federal Credit Union
to repay credit-card debt. She describes HWA as a Texas law firm
that "regularly collects or attempts to collect, directly or
indirectly, debts owed or alleged to be owed or due to another."
Cy-Fair obtained the services of HWA for purposes of debt
collection.
Ms. Salermo brings claims under the Fair Debt Collection Practices
Act, 15 U.S.C. Section 1692, against HWA. Named as additional
defendants are an unspecified number of John Does -- lawyers and
employees of HWA -- who regularly engage in the collection of debts
allegedly due another.
The complaint doesn't itself indicate the amount of the debt. But
the letter asserts a payoff amount of approximately $9,000. The
complaint also doesn't allege that Salermo ever intended to dispute
that debt. To the contrary, the counsel to Salermo acknowledged at
hearing that the debt was in fact valid and past due. Even so,
Salermo alleges in her complaint that the letter caused her various
forms of anxiety for two reasons that purport to coincide with
requirements imposed by the FDCPA upon debt-collection letters.
First, Salermo alleges that she was misled and believed an attorney
had reviewed her, and that this caused her to be upset and
frightened because she thought something imminent would happen,
perhaps a lawsuit would be filed against her. Second, she also
alleges that the language in the debt-collection letter sent by HWA
was "deliberately" drafted to omit the words by the debt collector
or words to that effect in order to confuse consumers regarding,
who may assume the debt to be valid. This "deceived" her, Salermo
says, and she believed that if she failed to dispute the debt, then
her debt would be assumed to be valid by everyone, e.g. --
creditor, the courts, the lawyers, etc. She was also "confused,
frightened, and misled" by the letter, understanding that provision
to mean that if she fails to dispute the debt to the Defendants,
then she has waived her right to dispute it later.
Ms. Salermo seeks redress under the FDCPA in her individual
capacity. She also brings the lawsuit on behalf of all similarly
situated persons within Texas, seeking certification of a class of
those who may have received a letter in this form from HWA.
HWA moved to dismiss, asserting both lack of standing and failure
to state a claim under Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure.
District Judge Charles Eskridge opines that Salermo lacks standing
to pursue her claim under 15 U.S.C. Section 1692g, regarding
failure to include required information in the debt-collection
letter sent by HWA that is the subject of this action. He holds
that Salermo fails to allege a concrete injury. The complaint
nowhere pleads that the referenced debt isn't valid, and her
counsel at hearing flatly conceded that it is.
Judge Eskridge also opines that Salermo has standing to pursue her
claim under 15 U.S.C. Section 1692e, regarding use of false,
deceptive, or misleading representation or means in connection with
that letter. He notes that contrary to claim under Section 1692g,
Salermo sufficiently alleges a concrete injury under Section 1692e.
Her alleged injury is sufficiently concrete to confer Article III
standing; hence, this claim will proceed.
Pleading upon information and belief is permissible in a general
sense, Judge Eskridge holds, citing Johnson v Johnson, 385 F.3d
503, 531 n 19 (5th Cir 2004). What's plainly impermissible is to
make a flat assertion of liability and ask that it be accepted as
true, he states. But that appears to be the type of assertion that
Salermo makes here upon information and belief as to lack of
attorney involvement in the drafting of the subject letter, he
adds.
Dismissal isn't warranted on this basis, if for no other reason
than that HWA doesn't seek it, according to Judge Eskridge. Even
so, initial discovery will focus narrowly upon two topics. One is
whether a lawyer at HWA did or didn't have a role in the subject
debt-collection letter. The other is the basis upon which Salermo
made her assertion upon information and belief, including what
investigation her counsel undertook in this regard. A separate
order regarding discovery will follow.
Accordingly, the motion to dismiss by Defendant Hughes, Watters, &
Askanase, LLP is granted in part and denied in part. The motion is
granted as to the assumed-valid claim asserted by Plaintiff Lucero
Salermo under 15 U.S.C. Section 1692g(a)(3) and related aspects of
15 U.S.C. Section 1692e and e(10). That claim is dismissed without
prejudice.
The motion is denied as to the attorney-involvement claim asserted
under 15 U.S.C. Section 1692e, e(3), and e(10). That claim will
proceed.
A full-text copy of the Court's Memorandum and Order dated Jan. 28,
2021, is available at https://tinyurl.com/11qx880z from
Leagle.com.
I.C. SYSTEM: Loses Bid to Compel Arbitration in Gilbert FDCPA Suit
------------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
denies the Defendant's Motion to Compel Arbitration, and denies in
part and grants in part the Plaintiff's Motion to Strike the
Declaration of Chris Hansen in the lawsuit entitled FRANK GILBERT,
on behalf of himself and all others similarly situated, Plaintiffs
v. I.C. SYSTEM, INC., Defendant, Case No. 19-CV-04988 (N.D. Ill.).
Plaintiff Gilbert, a Sprint customer, allegedly incurred a debt for
goods and services related to his Sprint account. As a result,
Defendant I.C. System, Inc. (ICS), a collection agency, mailed
Gilbert a collection letter to begin collecting Gilbert's alleged
debt. Gilbert filed this individual and putative class action
lawsuit against ICS, alleging that ICS violated the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692, et
seq., by using unfair means to collect alleged debts.
Mr. Gilbert claims that on February 11, 2019, ICS mailed a
collection letter to him regarding his alleged debt. The Collection
Letter also included an account number, an ICS reference number,
and stated that the balance due was $1,437.
The Plaintiff alleges that the amount ICS sought to collect was
actually increasing on a monthly basis due to interest or other
charges, but ICS's Collection Letter did not inform him that his
debt amount would be increased. He also claims that, after he was
credited for equipment charges, (which reduced the alleged debt to
$985 in March 2019), the debt balance increased to $999 in April
2019 and $1,013 in May 2019. As a result, Gilbert alleges that he
could have paid the amount claimed in the Collection Letter at some
future date and not have realized that the amount paid would not
have satisfied his current balance.
To comply with the FDCPA, the Plaintiff contends that ICS should
have informed him that if he paid the amount due as stated in the
Collection Letter, an adjustment may be necessary after ICS
received his check, and in that case, ICS would inform him before
depositing the check for collection. He claims that ICS violated
the FDCPA when it failed to disclose (i) that the balance of an
alleged debt was increasing and/or (ii) that the amount owed on the
ultimate date of payment would be more than the amount identified
as "balance due" in the Collection Letter.
Mr. Gilbert brought the action individually and as a class on
behalf of all persons similarly situated in the state of Illinois
from whom ICS attempted to collect a debt by mailing them a letter
substantially similar to the Collection Letter which lists a
balance due "but which fails to state that the amount due is
increasing and/or which fails to communicate that the amount owed
on the date that the individual may pay will be more than the
amount stated as being the balance due in the Collection Letter."
ICS answered the Complaint and asserted multiple affirmative
defenses, including that Gilbert's claims were barred by a
contractual arbitration and class action waiver agreement. ICS
subsequently filed the pending Motion to Compel Arbitration
pursuant to the Federal Arbitration Act. Gilbert filed a Response,
and ICS filed a Reply, attaching the Hansen Declaration in support
of its Motion to Compel. Gilbert then filed a motion to strike
Hansen's Declaration, which is also fully briefed.
ICS did not support its opening Motion to Compel with any affidavit
from a Sprint employee. In its Reply, without leave of the Court,
ICS attached an affidavit from Chris Hansen, an Outside Collection
Agency Manager for Sprint.
Mr. Gilbert, in turn, moved to strike the Hansen Declaration and
the argument in ICS' Reply that the Terms and Conditions expressly
apply to ICS as an assignee. Gilbert argues that the Hansen
Declaration should be stricken, because it contains new evidence
regarding the validity and authenticity of the Terms and
Conditions. Gilbert also argues that the portions of ICS' Reply
that reference ICS' status as an assignee should be stricken,
because the assignee argument was not developed in ICS' opening
brief and was raised for the first time in ICS' Reply. ICS counters
that the evidence in the Hansen Declaration is not new evidence but
rather rebuttal evidence and that it raised ICS' status as an
assignee in its opening Motion to Compel.
District Judge Franklin U. Valderrama notes that it is
well-established that a reply brief should not present new
arguments or incorporate new evidence for arguments that were not
properly supported in an opening brief, citing Dr. Robert L.
Meinders, D.C., Ltd. v. UnitedHealthcare, Inc., 800 F.3d 853, 858
(7th Cir. 2015).
It can hardly be disputed that the Hansen Declaration is new
evidence that was not contained in ICS' opening Motion to Compel,
Judge Valderrama states. The Court, accordingly, grants this part
of the Motion to Strike and will not consider the Hansen
Declaration in resolving the Motion to Compel.
The Court, however, disagrees with Gilbert that ICS' Reply raises
new arguments. ICS, in its opening brief argued, albeit summarily,
that it was an assignee of Sprint, and ICS reiterates that argument
in its Reply. Accordingly, the Court denies this part of the Motion
to Strike and does not strike any other part of ICS' Reply.
In sum, the Court grants in part and denies in part Gilbert's
Motion to Strike. It strikes the Hansen Declaration but does not
strike any other portions of ICS' Reply.
In its Motion to Compel, ICS argues that by activating his Sprint
account, Gilbert agreed to Sprint's Terms and Conditions. ICS
further argues that there is a valid and enforceable contract
between Gilbert and Sprint for arbitration; that ICS, as an
assignee, agent, or third-party beneficiary of Sprint, can enforce
the arbitration provision in Sprint's Terms and Conditions; and
that Gilbert's claims regarding ICS' Collection Letter are subject
to arbitration. As a result, ICS asks the Court to compel
arbitration and either dismiss this lawsuit or stay this lawsuit
pending completion of arbitration.
In support of its Motion to Compel, ICS attached the Declaration of
Michelle Dove, its General Counsel and Chief Compliance Officer
(Dove Declaration).
In response, Gilbert retorts that ICS has not demonstrated the
existence of a valid arbitration agreement; Illinois law does not
allow ICS, a non-signatory, to enforce an arbitration agreement;
and his claims are outside the scope of the alleged arbitration
provision.
Judge Valderrama opines that ICS has not met its burden of
establishing a valid agreement to arbitrate, because it has not
shown that Gilbert assented to the Terms and Conditions. ICS has
not provided a signed contract. Instead, it has provided a website
printout -- the Terms and Conditions provide a list of actions
Gilbert could undertake to accept them besides signing, including
opening a box, or activating, using, attempting to use, or paying
for Sprint services.
However, the Judge opines, the Dove Declaration is devoid of any
facts regarding how or when Gilbert received the Terms and
Conditions, which became effective Sept 30, 2017, that he was made
aware of the Terms and Conditions at any point, that he ever saw
the Terms and Conditions, or that he had the chance to review the
Terms and Conditions. Further, it does not provide any other
information about the actions, if any, Gilbert took with respect to
the Terms and Conditions.
Without such information, the Court cannot make the necessary
fact-intensive inquiry to determine whether Gilbert assented to the
Terms and Conditions.
On the record before it, the Court cannot conclude that ICS has met
its burden to show that the Terms and Conditions constitute a
binding agreement between Gilbert and Sprint. While ICS argues that
Gilbert has failed to provide evidence showing that ICS did not
submit a valid contract between Gilbert and Sprint, this contention
improperly shifts the burden. ICS has the burden of proving the
existence of a valid contract. Without evidence showing Gilbert's
assent to the submitted Terms and Conditions, the Court cannot
determine whether a valid contract exists. As a result, the Court
denies ICS' Motion to Compel.
For these reasons, the Court denies in part and grants in part
Gilbert's Motion to Strike. The Court also denies ICS' Motion to
Compel Arbitration.
A full-text copy of the Court's Memorandum Opinion and Order dated
Jan. 28, 2021, is available at https://tinyurl.com/nu1cldxm from
Leagle.com.
IKEA US: Court Directs Dukichs to File Class Status Bid by Feb. 25
------------------------------------------------------------------
In the class action lawsuit captioned as DIANA DUKICH and JOHN
DUKICH, on behalf of themselves and all others similarly situated,
v. IKEA US RETAIL LLC and IKEA NORTH AMERICA SERVICES, LLC, Case
No. 2:20-cv-02182-HB (E.D. Pa.), the Hon. Judge Harvey Bartle III
entered an order approving stipulation setting deadline for the
filing of the plaintiffs' motion for class certification as
follows:
1. The Plaintiffs shall file their Motion for Class
Certification by February 25, 2021;
2. The parties shall appear by telephone for a conference to
discuss a case management plan and schedule on March 1,
2021; and
3. No later than 5 days in advance of the conference, the
parties shall confer pursuant to Fed. R. Civ. P. 26(f) and
submit a proposed case management plan in advance of the
conference. If the parties are unable to agree on a
proposed case management plan, each party shall submit its
proposed case management plan in advance of the
conference.
On January 14, 2021, the Court entered an Order denying the
Defendants' Motion to Dismiss Plaintiffs' Amended Complaint or, in
the Alternative, to Strike Class Allegations. In its
contemporaneously filed Memorandum, the Court directs Plaintiffs to
"promptly file a motion for class certification at which point this
court will schedule a conference with counsel to discuss the scope
of discovery." The parties have since conferred and agree that
setting a date certain for the filing of the Plaintiffs' Motion for
Class Certification will promote efficiency.
Ikea is a furniture store company.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3cIIIEx at no extra charge.[CC]
IMAGINATION IND: Conditional Cert. of Exotic Dancers Class Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as KRISTEENA SCARPINO,
individually and on behalf of similarly situated individuals, v.
IMAGINATION INDUSTRIES, INC., d/b/a AMERICAN DREAM, and CASEY ROWE,
Case No. 8:20-cv-00449-RFR-CRZ (D. Neb.), the Plaintiff asks the
Court to enter an order:
1. conditionally certifying this action as a collective
action under 29 U.S.C. section 216(b);
2. issuing a notice to all exotic dancers who have worked at
American Dream during the last three years and were
classified as independent contractors by first class mail,
e-mail, and text message and by visibly posting the Notice
on the premises of American Dream; and
3. directing the Defendants to produce a list of the names,
last-known mailing and e-mail addresses, and telephone
numbers for all individuals who currently work and/or
previously worked at American Dream as exotic dancers at
any time in the last three years and were classified as
independent contractors.
Plaintiff Kristeena Scarpino has brought this collective action on
behalf of herself and all other similarly situated individuals who
have worked as exotic dancers at Imagination Industries, a strip
club, seeking to recover unpaid wages under the Fair Labor
Standards Act (FLSA).
The Plaintiff asserts that she and other exotic dancers working for
American Dream were all subject to the same rules and policies
imposed by the Defendants, and were misclassified as independent
contractors when they were and/or are, in fact, employees of
American Dream as a matter of economic reality, and
thus subject to the protections of the FLSA.
A copy of the Plaintiff's motion to certify class dated Jan. 27,
2020 is available from PacerMonitor.com at https://bit.ly/3rqZQD3
at no extra charge.[CC]
The Plaintiff is represented by:
Harold Lichten, Esq.
Olena Savytska, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: hlichten@llrlaw.com
osavytska@llrlaw.com
INSTRUCTURE HOLDINGS: Oklahoma Law Files Suit in Del. Chancery Ct.
------------------------------------------------------------------
A class action lawsuit has been filed against Daniel Goldsmith, et
al. The case is styled as Oklahoma Law Enforcement Retirement
System, Q. Wade Billings, individually and on behalf of all others
similarly situated v. Daniel Goldsmith, Instructure Holdings, LLC,
Joshua L. Coates, Kevin Thompson, Lloyd G. Waterhouse, Matthew
Kaminer, Steve Kaminsky, Thoma Bravo Fund XIII, L.P., Thoma Bravo,
LLC, Case No. 2021-0092 (Del. Chancery Ct., Feb. 2, 2021).
The case alleges breach of fiduciary duties.
Instructure Inc. provides online education technology. Daniel
Goldsmith "Dan" is a the former chief executive officer of
Instructure Inc.[BN]
The Plaintiffs are represented by:
Kevin Davenport, Esq.
Samuel L. Closic, Esq.
Jason W. Rigby, Esq.
PRICKETT JONES & ELLIOT
1310 King St PO Box 1328
Wilmington, DE 19899
Phone: (302) 888-6517
Fax: (302) 658-8111
Email: slclosic@prickett.com
INVESTOR'S BUSINESS: Sanchez Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Investor's Business
Daily, Inc. The case is styled as Christian Sanchez, on behalf of
himself and all others similarly situated v. Investor's Business
Daily, Inc., Case No. 1:21-cv-00931 (S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Investor's Business Daily -- https://www.investors.com/ -- is an
American newspaper and Website covering the stock market,
international business, finance and economics.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Telephone: (929) 575-4175
Facsimile: (929) 575-4195
Email: joseph@cml.legal
IOWA DHR: Eight Circuit Appeal Filed in CPX Civil Rights Suit
-------------------------------------------------------------
Defendants Kelly Kennedy Garcia, in her official capacity as
Director of the Iowa Department of Human Services, et al., filed an
appeal from a court ruling entered in the lawsuit entitled C.P.X.,
et al. v. Kelly Garcia, et al., Case No. 4:17-cv-00417-SMR, in the
U.S. District Court for the Southern District of Iowa - Central.
As previously reported in the Class Action Reporter, Plaintiffs
brought this action on behalf of a putative class of individuals at
the Boys State Training School in Eldora, Iowa. The Plaintiffs
allege that Defendants maintain unconstitutional and illegal
treatment practices with respect to the juveniles at the School,
who have significant mental illnesses.
The Defendants are seeking an appeal to review the Court's Order
dated January 7, 2021, granting in part Plaintiffs' motion for
attorney fees and expenses by Judge Stephanie M. Rose.
The appellate case is captioned as C.P.X., et al. v. Kelly Garcia,
et al., Case No. 21-1206, in the United States Court of Appeals for
the Eighth Circuit, January 28, 2021.
The briefing schedule in the Appellate Case states that:
-- Transcript is due on or before March 9, 2021;
-- Appendix is due on March 19, 2021;
-- BRIEF APPELLANT, Mark Day, Kelly Kennedy Garcia and Cory
Turner is due on March 19, 2021; and
-- Appellee brief is due 30 days from the date the court issues
the Notice of Docket Activity filing the brief of appellant.[BN]
Plaintiffs-Appellees C.P.X., through his next of friend S.P.X., for
themselves and those similarly situated, and K.N.X., through his
next friend Rachel Antonuccio, for themselves and those similarly
situated, are represented by:
Nicholas M. Berg, Esq.
Timothy R. Farrell, Esq.
Charles Zagnoli, Esq.
ROPES & GRAY
191 N. Wacker Drive, 32nd Floor
Chicago, IL 60606
Telephone: (312) 845-1200
E-mail: Nicholas.Berg@ropesgray.com
Timothy.Farrell@ropesgray.com
Charles.Zagnoli@ropesgray.com
- and -
Harry Frischer, Esq.
Marissa Christina Nardi, Esq.
Stephanie Marie Persson, Esq.
CHILDREN'S RIGHTS, INC.
88 Pine Street, Suite 800
New York, NY 10005
Telephone: (646) 942-4252
- and -
Jane Monteith Hudson, Esq.
Nathan D. Kirstein, Esq.
DISABILITY RIGHTS IOWA
400 E. Court Avenue, Suite 300
Des Moines, IA 50309
Defendants-Appellants Kelly Kennedy Garcia, in her official
capacity as Director of the Iowa Department of Human Services; Cory
Turner, in his official capacity as Interim Mental Health and
Disabilities Services Director of Facilities; and Mark Day, in his
official capacity as Superintendent of the Boys State Training
School, are represented by:
Anagha Dixit, Esq.
Gretchen Witte Kraemer, Esq.
IOWA DEPARTMENT OF JUSTICE
Hoover Building
1305 E. Walnut Street
Des Moines, IA 50319-0001
Telephone: (515) 281-5164
IRHYTHM TECH: Johnson Fistel Investigates Securities Suit Claims
----------------------------------------------------------------
Shareholder rights law firm Johnson Fistel, LLP is investigating
potential violations of the federal securities laws by iRhythm
Technologies, Inc. ("iRhythm" or the "Company") (NASDAQ: IRTC).
iRhythm stock suffered a steep decline following the Centers for
Medicare and Medicaid Services (CMS) announcement regarding its
2021 Medicare Physician Fee Schedule (MPFS) Final Rule. The MPFS
Final Rule establishes the payment policies and rates that Medicare
will use next year. Johnson Fistel's investigation seeks to
determine whether the Company issued false or misleading statements
or failed to disclose information relevant to investors.
If you have information that could assist in this investigation, or
if you are an iRhythm shareholder and are interested in learning
more about the investigation, please contact Jim Baker
(jimb@johnsonfistel.com) at 619-814-4471. If emailing, please
include a phone number.
Additionally, you can [click here to join this action]. There is no
cost or obligation to you.
About Johnson Fistel, LLP
Johnson Fistel, LLP is a nationally recognized shareholder rights
law firm with offices in California, New York and Georgia. The firm
represents individual and institutional investors in shareholder
derivative and securities class action lawsuits. For more
information about the firm and its attorneys, please visit
http://www.johnsonfistel.com.Attorney advertising. Past results do
not guarantee future outcomes.
Contact:
Johnson Fistel, LLP
Jim Baker, 619-814-4471
jimb@johnsonfistel.com [GN]
IRONBOUND EXPRESS: Luxama Bid for Class Certification Partly OK'd
-----------------------------------------------------------------
In the class action lawsuit captioned as VAUDRAL LUXAMA, CHANDLER
LUXEUS, JAVIER R. GARCIA, FREDO BONHOMME, SANTOS MALDONADO, and
CHANEL FONTIN, each individually and as class representatives, v.
IRONBOUND EXPRESS, INC., Case No. 2:11-cv-02224-JMV-JBC (D.N.J.),
the Hon. Judge John Michael Vazquez entered an order that:
1. the Plaintiffs' motion for class certification is granted
in part and denied in part;
2. the Court certifies the following class in this matter:
"a Rule 23(b)(3) liability class as to the Plaintiffs'
breach of contract claims regarding detention time and
parking space rental, and as to the Defendant's alleged
violations of the Truth-In-Leasing regulations consisting
of all independent owner-operators who entered into a
regulated lease with Defendant, directly or indirectly
through the Defendant's agents, and whose regulated lease
was in effect at any time between April 20, 2007 through
the pendency of this action;"
Excluded from this class are the Plaintiffs' counsel,
officers and directors of Defendant, judicial officers
assigned to this case, and staff and immediate relatives
of judicial officers assigned to this case;
3. the Court has already certified the following class:
"a Rule 23(b)(2) class for declaratory and injunctive
relief regarding the Plaintiffs' alleged Truth-in-Leasing
violations: All independent owner-operators who entered
into a regulated lease with the Defendant, directly or
indirectly through Defendant's agents, and whose regulated
lease was in effect at any time between April 20, 2007
through the pendency of this action;"
Excluded from this class are Plaintiffs' counsel, officers
and directors of Defendant, judicial officers assigned to
this case, and staff and immediate relatives of judicial
officers assigned to this case;
4. the Plaintiffs' motion for class certification is
otherwise denied; and
5. after Plaintiffs have taken discovery as to damages, they
may reassert their position that some or all of the
claimed damages are appropriate for class treatment.
Ironbound Express is a New Jersey Based Company providing complete
services to the Intermodal Community operating in the New York
Metropolitan.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/39QurUv at no extra charge.[CC]
JAGUAR LAND ROVER: Court Enters Protective Order in Gibson Suit
---------------------------------------------------------------
Magistrate Judge Gail J. Standish of the U.S. District Court for
the Central District of California, Western Division, entered a
Stipulated Protective Order in the case, GARY GIBSON, individually
and on behalf of all others similarly situated, Plaintiff v. JAGUAR
LAND ROVER NORTH AMERICA, LLC, and DOES 1 through 10, inclusive,
Defendants, Case No. 2:20-cv-00769-CJC (GJSx) (C.D. Cal.).
Discovery in the action is likely to involve production of
confidential, proprietary or private information for which special
protection from public disclosure and from use for any purpose
other than prosecuting the litigation may be warranted.
Accordingly, the parties stipulate to and petition the Court to
enter the Stipulated Protective Order. They acknowledge that the
Order does not confer blanket protections on all disclosures or
responses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information
or items that are entitled to confidential treatment under the
applicable legal principles.
The protections conferred by the Stipulation and Order cover not
only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. Any use of Protected
Material at trial will be governed by the orders of the trial
judge. The Order does not govern the use of Protected Material at
trial.
Any Party or Non-Party may challenge a designation of
confidentiality at any time that is consistent with the Court's
Scheduling Order.
After the final disposition of the Action within 60 days of a
written request by the Designating Party, each Receiving Party must
return all Protected Material to the Producing Party or destroy
such material. As used in this subdivision, "all Protected
Material" includes all copies, abstracts, compilations, summaries,
and any other format reproducing or capturing any of the Protected
Material.
Whether the Protected Material is returned or destroyed, the
Receiving Party must submit a written certification to the
Producing Party (and, if not the same person or entity, to the
Designating Party) by the 60 day deadline that (1) identifies (by
category, where appropriate) all the Protected Material that was
returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or any
other format reproducing or capturing any of the Protected
Material.
Notwithstanding this provision, the Counsel are entitled to retain
an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports,
attorney work product, and consultant and expert work product, even
if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject
to the Protective Order.
Any violation of the Order may be punished by appropriate measures
including, without limitation, contempt proceedings and/or monetary
sanctions.
A full-text copy of the Court's Jan. 27, 2021 Protective Order is
available at https://tinyurl.com/16z7bx0p from Leagle.com.
7-ELEVEN INC: Court Issues Protective Order in Sousa Class Suit
In the case, KARLA Y. SOUSA, on behalf of herself and all others
similarly situated, Plaintiff, v. 7-Eleven, Inc., Defendant, Case
No. 3:19-cv-02142-JLS-BLM (S.D. Cal.), Magistrate Judge Barbara L.
Major of the U.S. District Court for the Southern District of
California granted the Joint Motion for Protective Order.
Disclosure and discovery activity in the action are likely to
involve production of confidential, proprietary, or private
information for which special protection from public disclosure and
from use for any purpose other than prosecuting this litigation may
be warranted. Accordingly, the parties stipulate to and petition
the Court to enter the Stipulated Protective Order. They
acknowledge that the Order does not confer blanket protections on
all disclosures or responses to discovery and that the protection
it affords from Joint Proposed Protective Order No.
3:19-cv-02142-JLS (BLM) public disclosure and use extends only to
the limited information or items that are entitled to confidential
treatment under the applicable legal principles. The Parties
understand that nothing in the Stipulated Protective Order changes,
amends, or circumvents any court rule or local rule.
The protections conferred by the Stipulation and Order cover not
only Protected Material, but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts,
summaries, or compilations of Protected Material; and (3) any
testimony, conversations, or presentations by the Parties or their
Counsel that might reveal Protected Material.
However, the protections conferred by the Stipulation and Order do
not cover the following information: (a) any information that is in
the public domain at the time of disclosure to a Receiving Party or
becomes part of the public domain after its disclosure to a
Receiving Party as a result of publication not involving a
violation of the Order, including becoming part of the public
record through trial or otherwise; and (b) any information known to
the Receiving Party prior to the disclosure or obtained by the
Receiving Party after the disclosure from a source who obtained the
information lawfully and under no obligation of confidentiality to
the Designating Party. Any use of Protected Material at trial will
be governed by a separate agreement or order.
Even after final disposition of the litigation, the confidentiality
obligations imposed by the Order will remain in effect until a
Designating Party agrees otherwise in writing or a Court Order
otherwise directs. Final disposition will be deemed to be the
later of (1) dismissal of all claims and defenses in this action,
with or without prejudice; and (2) final judgment herein after the
completion and exhaustion of all appeals, rehearings, remands,
trials, or reviews of the action, including the time limits for
filing any motions or applications for extension of time pursuant
to applicable law.
The Court will retain jurisdiction for a period of one year after
the conclusion of the action to enforce the terms of the Protective
Order.
Any Party or Non-Party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a
Designating Party's confidentiality designation is necessary to
avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the litigation, a
Party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after the
original designation is disclosed.
Within 60 days after the final disposition of the action, each
Receiving Party must return all Protected Material to the Producing
Party or destroy such material. As used in this subdivision, "all
Protected Material" includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the
Protected Material. Whether the Protected Material is returned or
destroyed, the Receiving Party must submit a written certification
to the Producing Party (and, if not the same person or entity, to
the Designating Party) by the 60 day deadline that (1) identifies
(by category, where appropriate) all the Protected Material that
was returned or destroyed and (2) affirms that the Receiving Party
has not retained any copies, abstracts, compilations, summaries or
any other format reproducing or capturing any of the Protected
Material.
Notwithstanding this provision, the Counsel are entitled to retain
an archival copy of all pleadings, motion papers, trial,
deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports,
attorney work product, and consultant and expert work product, even
if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject
to the Protective Order as set forth.
Furthermore, within 60 days after the final disposition of the
action, the parties will move ex parte for an order authorizing the
Court to destroy all Confidential and Attorneys' Eyes Only Material
in the Court's possession.
The Court may modify the terms and conditions of the Protective
Order for good cause, or in the interest of justice, or on its own
order at any time in these proceedings.
A full-text copy of the Court's Jan. 27, 2021 Order is available at
https://tinyurl.com/2b4s2h9b from Leagle.com.
JEFFERIES FINANCIAL: Class Suits in Minnesota & New Mexico Underway
-------------------------------------------------------------------
Jefferies Financial Group Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on January 29,
2021, for the fiscal year ended November 30, 2020, that the
company continues to defend class action lawsuits in the U.S.
District Court, Minnesota District, and in the U.S. District Court,
New Mexico District.
The Company is a defendant in two class action lawsuits in the
United States District Court, Minnesota District alleging that it
violated the Sherman Antitrust Act, the Packers and Stockyards Act,
the Commodity Exchange Act, and various state laws (the "Antitrust
Cases").
The Antitrust Cases are entitled In re Cattle Antitrust Litigation,
which was filed originally on April 23, 2019, and Peterson et al.
v. JBS USA Food Company Holdings, et al., which was filed
originally on April 26, 2019.
The plaintiffs in the Antitrust Cases seek treble damages and other
relief under the Sherman Antitrust Act, the Packers & Stockyards
Act, the Commodities Exchange Act and attorneys" fees.
The Company is also a defendant in two class action lawsuits filed
on January 7, 2020, alleging that it misrepresented the origin of
its products in violation of the New Mexico Unfair Practices Act
(the "Labelling Cases").
The Labelling Cases are entitled Thornton v. Tyson Foods, Inc., et
al., filed in the New Mexico Second Judicial District Court,
Bernalillo County, and Lucero v. Tyson Foods, et al., filed in the
New Mexico Thirteenth Judicial District Court, Sandoval County.
The Labelling Cases were subsequently removed to the United States
District Court, New Mexico District. The plaintiffs in the
Labelling Cases seek treble damages and other relief and attorneys'
fees.
NBP believes it has meritorious defenses to the claims in the
Antitrust Cases and the Labelling Cases and intends to defend these
cases vigorously.
Jefferies said, "There can be no assurances, however, as to the
outcome of these matters or the impact on the Company's
consolidated financial position, results of operations and cash
flows."
Jefferies Financial Group Inc. is a global diversified financial
services company focusing on investment banking and capital
markets, asset management and direct investing. The Company offers
a full range of investment banking, equities, fixed income, asset
and wealth management products and services. The company is based
in New York, New York.
JOHNSON CONTROLS: Bid to Dismiss Gumm Action Under Advisement
-------------------------------------------------------------
Johnson Controls International plc said in its Form 10-Q Report
filed with the Securities and Exchange Commission on January 29,
2021, for the quarterly period ended December 31, 2020, that the
court in Gumm v. Molinaroli, et al., Case No. 16-cv-1093, heard
oral argument on a motion to dismiss and took the matter under
advisement.
On August 16, 2016, a putative class action lawsuit, Gumm v.
Molinaroli, et al., Case No. 16-cv-1093, was filed in the United
States District Court for the Eastern District of Wisconsin, naming
Johnson Controls, Inc., the individual members of its board of
directors at the time of the merger with the Company's merger
subsidiary and certain of its officers, the Company and the
Company's merger subsidiary as defendants.
The complaint asserted various causes of action under the federal
securities laws, state law and the Taxpayer Bill of Rights,
including that the individual defendants allegedly breached their
fiduciary duties and unjustly enriched themselves by structuring
the merger among the Company, Tyco and the merger subsidiary in a
manner that would result in a United States federal income tax
realization event for the putative class of certain Johnson
Controls, Inc. shareholders and allegedly result in certain
benefits to the defendants, as well as related claims regarding
alleged misstatements in the proxy statement/prospectus distributed
to the Johnson Controls, Inc. shareholders, conversion and breach
of contract.
The complaint also asserted that Johnson Controls, Inc., the
Company and the Company's merger subsidiary aided and abetted the
individual defendants in their breach of fiduciary duties and
unjust enrichment. The complaint seeks, among other things,
disgorgement of profits and damages.
On September 30, 2016, approximately one month after the closing of
the merger, plaintiffs filed a preliminary injunction motion
seeking, among other items, to compel Johnson Controls, Inc. to
make certain intercompany payments that plaintiffs contend will
impact the United States federal income tax consequences of the
merger to the putative class of certain Johnson Controls, Inc.
shareholders and to enjoin Johnson Controls, Inc. from reporting to
the Internal Revenue Service the capital gains taxes payable by
this putative class as a result of the closing of the merger.
The court held a hearing on the preliminary injunction motion on
January 4, 2017, and on January 25, 2017, the judge denied the
plaintiffs' motion. Plaintiffs filed an amended complaint on
February 15, 2017, and the Company filed a motion to dismiss on
April 3, 2017.
On October 17, 2019, the court heard oral arguments on the motion
to dismiss and took the matter under advisement.
Johnson said, "Although the Company believes it has substantial
defenses to plaintiffs' claims, it is not able to predict the
outcome of this action."
No further updates were provided in the Company's SEC report.
Johnson Controls International plc operates as a diversified
technology and multi-industrial company worldwide. The company
operates through Building Technologies & Solutions and Power
Solutions segments. The company was formerly known as Johnson
Controls, Inc. and changed its name to Johnson Controls
International plc in September 2016. Johnson Controls International
plc was founded in 1885 and is headquartered in Cork, Ireland.
JOHNSON CONTROLS: Still Defends Aqueous Film-Forming Foam Suits
---------------------------------------------------------------
Johnson Controls International plc said in its Form 10-Q Report
filed with the Securities and Exchange Commission on January 29,
2021, for the quarterly period ended December 31, 2020, that the
company and its subsidiaries continue to defend several class
action suits related to Aqueous Film-Forming Foam ("AFFF").
Two of the Company's subsidiaries, Chemguard and Tyco Fire
Products, have been named, along with other defendant
manufacturers, suppliers and distributors, and, in some cases,
certain subsidiaries of the Company affiliated with Chemguard and
Tyco Fire Products, in a number of class action and other lawsuits
relating to the use of fire-fighting foam products by the U.S.
Department of Defense and others for fire suppression purposes and
related training exercises. Plaintiffs generally allege that the
firefighting foam products contain or break down into the chemicals
perfluorooctane sulfonate ("PFOS") and perfluorooctanoic acid
("PFOA") and/or other PFAS compounds and that the use of these
products by others at various airbases, airports and other sites
resulted in the release of these chemicals into the environment and
ultimately into communities' drinking water supplies neighboring
those airports, airbases and other sites.
PFOA, PFOS, and other PFAS compounds are being studied by the
United States Environmental Protection Agency and other
environmental and health agencies and researchers. The EPA has not
issued binding regulatory limits, but has stated that it would
propose regulatory standards for PFOS and PFOA in drinking water by
the end of 2019, in accordance with its PFAS Action Plan released
in February 2019, and issued interim recommendations for addressing
PFOA and PFOS in groundwater in December 2019. While those studies
continue, the EPA has issued a health advisory level for PFOA and
PFOS in drinking water.
Both PFOA and PFOS are types of synthetic chemical compounds that
have been present in firefighting foam. However, both are also
present in many existing consumer products. According to EPA, PFOA
and PFOS have been used to make carpets, clothing, fabrics for
furniture, paper packaging for food and other materials (e.g.,
cookware) that are resistant to water, grease or stains.
Plaintiffs generally seek compensatory damages, including damages
for alleged personal injuries, medical monitoring, diminution in
property values, investigation and remediation costs, and natural
resources damages, and also seek punitive damages and injunctive
relief to address remediation of the alleged contamination.
In September 2018, Tyco Fire Products and Chemguard filed a
Petition for Multidistrict Litigation with the United States
Judicial Panel on Multidistrict Litigation ("JPML") seeking to
consolidate all existing and future federal cases into one
jurisdiction.
On December 7, 2018, the JPML issued an order transferring various
AFFF cases to a multi-district litigation ("MDL") before the United
States District Court for the District of South Carolina.
Additional cases have been identified for transfer to or are being
directly filed in the MDL.
AFFF Putative Class Actions
Chemguard and Tyco Fire Products are named in 31 putative class
actions in federal courts originating from Colorado, Delaware,
Florida, Massachusetts, New York, Pennsylvania, Washington, New
Hampshire, South Carolina, the District of Columbia, Guam, West
Virginia, Michigan and South Dakota. All of these cases have been
direct-filed in or transferred to the MDL. Since the beginning of
fiscal year 2021, one putative class action (Jackson v. 3M Company,
et al., direct filed on January 15, 2021 in the MDL pending in the
United States District Court, District of South Carolina) has been
filed against the Company.
AFFF Individual or Mass Actions
There are approximately 876 individual or "mass" actions pending
that were filed in state or federal court in California (5 cases),
Colorado (41 cases), New York (4 cases), Pennsylvania (15 cases),
New Mexico (2 cases), Missouri (1 case), Arizona (1 case) and South
Carolina (807 cases direct filed from various U.S. jurisdictions)
against Chemguard and Tyco Fire Products and other defendants in
which the plaintiffs generally seek compensatory damages, including
damages for alleged personal injuries, medical monitoring, and
alleged diminution in property values. The cases involve five
plaintiffs in California, approximately 7,000 plaintiffs in
Colorado, approximately 126 plaintiffs in New York, 15 plaintiffs
in Pennsylvania, two plaintiffs in New Mexico, one plaintiff in
Missouri, two plaintiffs in Arizona, and more than 800 plaintiffs
from various states who direct-filed complaints in South Carolina.
All but six of these matters have been transferred to or
directly-filed in the MDL, and it is anticipated that the remaining
cases will be transferred to the MDL. Many of the additional filed
actions were directly filed in South Carolina by plaintiffs who
were among the 660 plaintiffs the Company had previously disclosed
to have made filings in Pennsylvania state court. The Company
anticipates that the remainder of the possible individual product
liability claims filed in Pennsylvania state court will either soon
be filed in the MDL (and that all such claims in state court will
be dismissed accordingly) or will be dismissed in Pennsylvania
without a corresponding filing in South Carolina.
AFFF Municipal Cases
Chemguard and Tyco Fire Products are also defendants in 63 cases in
federal and state courts involving municipal or water provider
plaintiffs in Alaska, Arizona, California, Colorado, Florida,
Massachusetts, New Jersey, New York, Maryland, Ohio, Pennsylvania,
Washington, the District of Columbia and several municipalities or
water providers from various states who direct-filed complaints in
South Carolina. All but three of these cases have been transferred
to or directly filed in the MDL, and it is anticipated that the
remaining cases will be transferred to the MDL. These municipal
plaintiffs generally allege that the use of the defendants'
fire-fighting foam products at fire training academies, municipal
airports, Air National Guard bases, or Navy or Air Force bases
released PFOS and PFOA into public water supply wells, allegedly
requiring remediation of public property. Since the beginning of
fiscal year 2021, the following municipal actions have been filed
against the Company:
- Hicksville Water District v. 3M Company, et al., filed on October
16, 2020 in New York State Court; now pending in the Eastern
District of New York (tagged for transfer to the MDL pending in the
United States District Court, District of South Carolina).
- Pennsylvania-American Water Co. v. 3M Company, et al., complaint
filed on October 21, 2020 in the Court of Common Pleas of
Cumberland County, Pennsylvania.
- Santa Clarita Valley Water Agency v. 3M Company, et al.,
direct-filed on October 27, 2020 in the MDL pending in the United
States District Court, District of South Carolina.
- Barnstable Fire District v. 3M Company, et al., direct-filed on
December 3, 2020 in the MDL pending in the United States District
Court, District of South Carolina.
- Miami-Dade County, Florida v. 3M Company, et al., direct-filed on
December 3, 2020 in the MDL pending in the United States District
Court, District of South Carolina.
- Town of Cairo v. 3M Company, et al., direct-filed on December 7,
2020 in the MDL pending in the United States District Court,
District of South Carolina.
-Paducah Water of the City of Paducah, Kentucky v. 3M Company, et
al., direct-filed on December 16, 2020 in the MDL pending in the
United States District Court, District of South Carolina.
In May 2018, the Company was also notified by the Widefield Water
and Sanitation District in Colorado Springs, Colorado that it may
assert claims regarding its remediation costs in connection with
PFOS and PFOA contamination allegedly resulting from the use of
those products at the Peterson Air Force Base.
In May 2020, the Company was also notified by the Lakewood Water
District in Pierce County, Washington that it may assert claims
regarding remediation in connection with PFOA, PFOS, and other PFAS
contamination allegedly resulting from the use of those products at
Joint Base Lewis-McChord.
State or U.S. Territory Attorneys General Litigation related to
AFFF
In June 2018, the State of New York filed a lawsuit in New York
state court (State of New York v. The 3M Company et al No.
904029-18 (N.Y. Sup. Ct., Albany County)) against a number of
manufacturers, including affiliates of the Company, with respect to
alleged PFOS and PFOA contamination purportedly resulting from
firefighting foams used at locations across New York, including
Stewart Air National Guard Base in Newburgh and Gabreski Air
National Guard Base in Southampton, Plattsburgh Air Force Base in
Plattsburgh, Griffiss Air Force Base in Rome, and unspecified
"other" sites throughout the State.
The lawsuit seeks to recover costs and natural resource damages
associated with contamination at these sites. This suit has been
removed to the United States District Court for the Northern
District of New York and transferred to the MDL.
In February 2019, the State of New York filed a second lawsuit in
New York state court (State of New York v. The 3M Company et al
(N.Y. Sup. Ct., Albany County)), against a number of manufacturers,
including affiliates of the Company, with respect to alleged PFOS
and PFOA contamination purportedly resulting from firefighting
foams used at additional locations across New York. This suit has
been removed to the United States District Court for the Northern
District of New York and transferred to the MDL.
In July 2019, the State of New York filed a third lawsuit in New
York state court (State of New York v. The 3M Company et al (N.Y.
Sup. Ct., Albany County)), against a number of manufacturers,
including affiliates of the Company, with respect to alleged PFOS
and PFOA contamination purportedly resulting from firefighting
foams used at further additional locations across New York.
This suit has been removed to the United States District Court for
the Northern District of New York and transferred to the MDL. In
November 2019, the State of New York filed a fourth lawsuit in New
York state court (State of New York v. The 3M Company et al (N.Y.
Sup. Ct., Albany County)), against a number of manufacturers,
including affiliates of the Company, with respect to alleged PFOS
and PFOA contamination purportedly resulting from firefighting
foams used at further additional locations across New York. This
suit has been removed to federal court and transferred to the MDL.
In January 2019, the State of Ohio filed a lawsuit in Ohio state
court (State of Ohio v. The 3M Company et al., No.
G-4801-CI-021804752 -000 (Court of Common Pleas of Lucas County,
Ohio)) against a number of manufacturers, including affiliates of
the Company, with respect to PFOS and PFOA contamination allegedly
resulting from the use of firefighting foams at various specified
and unspecified locations across Ohio. The lawsuit seeks to recover
costs and natural resource damages associated with the
contamination. This lawsuit has been removed to the United States
District Court for the Northern District of Ohio and transferred to
the MDL.
In addition, in May and June 2019, three other states filed
lawsuits in their respective state courts against a number of
manufacturers, including affiliates of the Company, with respect to
PFOS and PFOA contamination allegedly resulting from the use of
firefighting foams at various specified and unspecified locations
across their jurisdictions (State of New Hampshire v. The 3M
Company et al.; State of Vermont v. The 3M Company et al.; State of
New Jersey v. The 3M Company et al.). All three of these suits have
been removed to federal court and transferred to the MDL.
In September 2019, the government of Guam filed a lawsuit in the
superior court of Guam against a number of manufacturers, including
affiliates of the Company, with respect to PFOS and PFOA
contamination allegedly resulting from the use of firefighting
foams at various locations within its jurisdiction. This complaint
has been removed to federal court and transferred to the MDL.
In November 2019, the government of the Commonwealth of the
Northern Mariana Islands filed a lawsuit in the superior court of
the Northern Mariana Islands against a number of manufacturers,
including affiliates of the Company, with respect to PFOS and PFOA
contamination allegedly resulting from the use of firefighting
foams at various locations within its jurisdiction. This complaint
has been removed to federal court and transferred to the MDL.
In August 2020, Attorney General of the State of Michigan filed two
substantially similar lawsuits—one in federal court and one in
state court—against a number of manufacturers, including
affiliates of the Company, with respect to PFOS and PFOA
contamination allegedly resulting from the use of firefighting
foams at various locations within the State. The federal action has
been transferred to the MDL, and the state court action has been
removed to federal court and tagged for transfer to the MDL.
In December 2020, the State of Mississippi filed a lawsuit against
a number of manufacturers and other defendants, including
affiliates of the Group, with respect to PFOS and PFOA damage of
the State's land and natural resources allegedly resulting from the
use of firefighting foams at various locations throughout the
State. This complaint was direct-filed in the MDL in South
Carolina.
AFFF Matters Related to the Tyco Fire Products Fire Technology
Center in Marinette, Wisconsin
Tyco Fire Products and Chemguard are defendants in one lawsuit in
Marinette County, Wisconsin alleging damages due to the historical
use of AFFF products at Tyco's Fire Technology Center in Marinette,
Wisconsin.
The putative class action, Joan & Richard Campbell for themselves
and on behalf of other similarly situated v. Tyco Fire Products LP
and Chemguard Inc., et al. (Marinette County Circuit Court, filed
Dec. 17, 2018) alleges PFAS (including PFOA/PFOS) contaminated
groundwater migrated off Tyco's property and into residential
drinking water wells causing both personal injuries and property
damage to the plaintiffs; Tyco and Chemguard removed this case to
the United States District Court for the Eastern District of
Wisconsin and it has been transferred to the MDL. On January 7,
2021, the parties agreed to settle the lawsuit. The settlement
provides that Tyco will pay up to $17.5 million to compensate Town
of Peshtigo residents who live in the area affected by PFAS from
the FTC for claims related to loss of real property value, exposure
and/or personal injury. The settlement does not constitute an
admission of wrongdoing by Tyco or Chemguard and is subject to
approval by the federal court presiding over the lawsuit and other
contingencies.
The Company does not expect the settlement to have a significant
impact on its fiscal year 2021 results of operations or cash
flows.
A second lawsuit, Duane and Janell Goldsmith individually and on
behalf of H.G. and K.G v. Tyco Fire Products LP and Chemguard Inc.,
et al. (Marinette County Circuit Court, filed Dec. 17, 2018) was
also filed by a family alleging personal injuries due to
contaminated groundwater; this case has been dismissed without
prejudice.
Other AFFF Related Matters
In March 2020, the Kalispel Tribe of Indians (a federally
recognized Tribe) and two tribal corporations filed a lawsuit in
the United States District Court for the Eastern District of
Washington against a number of manufacturers, including affiliates
of the Company, and the United States with respect to PFAS
contamination allegedly resulting from the use and disposal of AFFF
by the United States Air Force at and around Fairchild Air Force
Base in eastern Washington. This case has been transferred to the
MDL.
Other PFAS Related Matters
In April 2020, the Weirton Area Water Board in West Virginia filed
a lawsuit in the Circuit Court of Brooke County, West Virginia
against a number of PFAS chemical manufacturers, including
Chemguard, with respect to PFAS contamination. This case has been
removed to the United States District Court for the Northern
District of West Virginia.
The Company is vigorously defending the above matters and believes
that it has meritorious defenses to class certification and the
claims asserted, including statutes of limitations, the government
contractor defense, various medical and scientific defenses, and
other factual and legal defenses.
The government contractor defense is a form of immunity available
to government contractors that produced products for the United
States government pursuant to the government's specifications. Tyco
and Chemguard have insurance that has been in place for many years
and the Company is pursuing this coverage for these matters.
However, there are numerous factual and legal issues to be resolved
in connection with these claims, and it is extremely difficult to
predict the outcome or ultimate financial exposure, if any,
represented by these matters, and there can be no assurance that
any such exposure will not be material.
Johnson Controls International plc operates as a diversified
technology and multi-industrial company worldwide. The company
operates through Building Technologies & Solutions and Power
Solutions segments. The company was formerly known as Johnson
Controls, Inc. and changed its name to Johnson Controls
International plc in September 2016. Johnson Controls International
plc was founded in 1885 and is headquartered in Cork, Ireland.
JOS. A. BANK: Website Inaccessible to Blind Users, Brooks Claims
----------------------------------------------------------------
VALERIE BROOKS, individually and on behalf of all others similarly
situated v. JOS. A. BANK CLOTHIERS, INC., a Delaware corporation
and DOES 1 to 10, inclusive, Case No. 2:21-cv-00070-KJM-AC (E.D.
Cal., Jan. 13, 2021) arises from the Defendants' failure to design,
construct, maintain, and operate its Website to be fully and
equally accessible to and independently usable by Plaintiff and
other blind or visually-impaired people, in violations of rights
under the Americans with Disabilities Act and the California's
Unruh Civil Rights Act.
Ms. Brooks alleges that the Defendants engaged in acts of
intentional discrimination due to the inaccessibility of their
Website, https://www.josbank.com, and seeks a permanent injunction
to cause a change in the Defendants' policies, practices, and
procedures so that its Website will become and remain accessible to
blind and visually-impaired consumers.
Jos. A. Bank Clothiers, Inc. is an American retailer of men's
clothing and accessories. [BN]
The Plaintiff is represented by:
Thiago Coelho, Esq.
Jasmine Behroozan, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
E-mail: thiago@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
KANSAS: Class Settlement in M.B. v. Howard Has Final Approval
-------------------------------------------------------------
The U.S. District Court for the District of Kansas grants the
Plaintiffs' Unopposed Motion for Final Approval of Class Action
Settlement in the lawsuit entitled M.B. and S.E. through their next
friend Katharyn McIntyre, et al., Plaintiffs v. Laura Howard in her
official capacity as Kansas Department for Children and Families
Secretary, et al., Defendants, Case No. 18-2617-DDC-GEB (D. Kan.).
The Plaintiffs ask the Court to certify the class for settlement
purposes and grant final approval of the Settlement Agreement.
After a Final Settlement Hearing held on January 22, 2021, the
matter is fully briefed.
The Plaintiffs, minor children in foster care custody of the Kansas
Department for Children and Families ("DCF"), filed suit in
November 2018 seeking declaratory and injunctive relief against the
Secretary of DCF, the Secretary of the Kansas Department for Aging
and Disability Services, and the Secretary of the Kansas Department
of Health and Environment.
The Plaintiffs assert two claims against the Defendants. First, the
Plaintiffs allege that the Defendants violated the state's
affirmative duties under the Fourteenth Amendment when it subjected
children in foster care custody to extreme housing disruption and
numerous short-term foster care placements. Second, the Plaintiffs
assert that the Defendants violated their rights under the federal
Medicaid Act by failing to provide them with necessary mental
health and behavioral health screening, diagnostic services, and
treatment, including trauma-related screening and diagnostic
services.
The parties jointly retained Kevin Ryan of Public Catalyst for
mediation as a skilled and neutral subject-matter expert. The
mediator declared an impasse on February 28, 2020, and so, the
parties resumed discovery before eventually returning to settlement
discussions in May 2020. The parties met four times in June by
teleconference and reached the proposed settlement agreement. The
Court granted the motion and preliminarily approved class
certification, the settlement agreement, and the proposed notice
plan.
The next friends of the Plaintiffs, on behalf of the proposed
Settlement Class, and the Defendants have agreed to settle the
litigation on the terms set forth in the July 8, 2020 Settlement
Agreement. The Plaintiffs ask the court to certify the proposed
class defined as "all children who are now, or in the future will
be, in the protective custody of the Department for Children and
Families" under Kan. Stat. Ann. Section 38-2242(c)(1).
District Judge Daniel D. Crabtree holds that the proposed class
meets the requirements of Rule 23(a) of the Federal Rules of Civil
Procedure. First, the class consists of more than 7,000 children
and so joinder of all members is impracticable. Second, there are
questions of law and fact common to the proposed class--minor
children subject to DCF custody. Third, the Named Plaintiffs'
claims are typical of the proposed class. Fourth, the Named
Plaintiffs fairly and adequately represent the claims of the class
because they share the same claims, arising out of the Defendants'
alleged course of conduct.
The Plaintiffs' motion also asserts the class meets Rule 23(b)(2)'s
requirements. The Defendants' alleged policies and practices of
extreme housing disruption and inadequate mental health care apply
generally to the class. And, the injunctive relief sought --
practice improvements described in the Settlement Agreement -- is
appropriate for the class as a whole, Judge Crabtree holds. The
class, therefore, meets Rule 23(b)(2)'s requirements.
Judge Crabtree finds that the Plaintiffs have established the
proposed class satisfies Rule 23(a) and Rule 23(b)(2)'s
requirements. So, the Court certifies the proposed class for
settlement purposes.
The Settlement Agreement seeks structural improvements to the
Kansas child welfare system to benefit minor children in DCF
custody. The Settlement Agreement addresses both the Plaintiffs'
claims: the Defendants' practice of extreme housing disruption, and
failure to provide adequate mental and behavioral health screening
and treatment for children in DCF custody.
The Defendants agree to five practice improvements, which are (1)
ending housing for Class Members in inappropriate locations, (2)
ensuring that no placement exceeds its licensed capacity without an
approved exception, (3) avoid delaying medically necessary mental
health treatment services until or otherwise linking mental health
treatment to placement stability, (4) ensuring Crisis Intervention
Services are available state wide for Class Members, and (5) ending
the practice of night-to-night and short term placements for Class
Members. The Settlement Agreement requires the Defendants to report
on their progress and allows a neutral to monitor the Defendants'
progress and maintenance of the five practice improvements.
Testimony presented at the January 22, 2021 hearing highlighted the
benefit of the Defendants implementing the Settlement Agreement's
practice improvements to improve the Kansas child welfare system
rather than wait for prolonged litigation. Only three comments
expressed criticism of the Settlement Agreement. The critical
comments expressed their concerns that the Settlement Agreement did
not address the needs of foster kids or foster families adequately.
The critical comments included concerns about Kansas's alleged lack
of a long term residential mental health care and inadequate
staffing. The last critical comment expressed frustration with what
the commenter perceived as weak enforcement mechanisms in the
Settlement Agreement.
The Plaintiffs addressed these criticisms in their Supplement. They
explain "the Settlement Agreement was intentionally designed to
afford defendants some limited flexibility based on their
professional expertise and operational needs -- as long as they
achieve and sustain improved outcomes for children based on the
concrete and mandatory numerical benchmarks."
While the Court considers the critical comments and their concerns,
the Court is convinced the Settlement Agreement provides real value
to the class by addressing the needs plaintiffs identify -- an end
to extreme housing disruption and inadequate mental healthcare. The
Court finds the immediate relief that the Settlement Agreement
provides outweighs the possibility of greater future relief after
prolonged litigation. This factor favors approving the Settlement
Agreement.
After considering the four factors under Rutter & Wilbanks Corp. v.
Shell Oil Co., 314 F.3d 1180, 1188 (10th Cir. 2002), the Court
finds all four favor approving the settlement as fair, reasonable,
and adequate. The Court, thus, approves the parties' class action
settlement.
Therefore, the Court ruled:
1. By agreeing to settle the litigation, the Defendants do not
admit, and specifically deny, any and all liability in the
litigation;
2. The class action settlement, memorialized in the Settlement
Agreement, is fair, reasonable, and adequate, it resulted
from extensive arm's length, good faith negotiations
between the parties through experienced counsel, with the
assistance of an independent mediator and subject-matter
expert, and meets all other requirements of the Federal
Rules;
3. The class action settlement, memorialized in the Settlement
Agreement, is finally approved and entered as a final
judgment and order of the Court;
4. The action is dismissed with prejudice;
5. To the full extent permissible by the controlling
precedents about subject matter jurisdiction, the Court
retains jurisdiction for purposes of enforcing the class
action settlement, memorialized in the Settlement
Agreement;
6. Each Class Member is deemed to have released the Released
Claims, as defined in the Settlement Agreement, against the
defendants, and is barred from prosecuting, commencing, or
continuing any of the Released Claims against any
defendant; and
7. The Court incorporates within the final judgment and order
the express terms of the Settlement Agreement, retains (to
the extent legally permissible) continuing jurisdiction
over the Settlement Agreement as set forth in it, and
orders the parties' compliance with the terms of the
Settlement Agreement. The Court adopts the Settlement
Agreement as an injunctive order of the court pursuant to
Fed. R. Civ. P. 65(d), indicating the Court's final
approval, and attaches the executed Settlement Agreement
here.
A full-text copy of the Court's Memorandum and Order dated Jan. 28,
2021, is available at https://tinyurl.com/pffu79bn from
Leagle.com.
For and on behalf of the Plaintiffs:
Teresa A. Woody -- twoody@kansasappleseed.org -- Larry R. Rute --
larry@admediate.com -- Kansas Appleseed, 211 E. 8th St., in
Lawrence, Kansas.
Loretta E. Burns-Bucklew -- loribblawkc@gmail.com -- 401 W. 89th
Street, in Kansas City, Missouri.
Leecia Welch -- lwelch@youthlaw.org -- Poonam Juncja --
pjuneja@youthlaw.org -- Freya Pitts -- fpitts@youthlaw.org --
National Center for Youth Law, 1212 Broadway, Suite 600, in
Oakland, California.
Ira Lustbader -- ilustbader@childrensrights.org -- Marissa C. Nardi
-- mnardi@childrensrights.org -- Jonathan M. King --
jking@childrensrights.org -- Stephen A. Dixon --
sdixon@childrensrights.org -- Children's Rights, Inc., 88 Pine
Street, 8th Floor, in New York City.
Joshua Kane -- joshua.kane@dlapiper.com -- DLA Piper LLP (US), 1251
Avenue of the Americas, in New York City.
Counsel for the Defendants:
Jean Paul Bradshaw II -- jeanpaul.bradshaw@lathropgpm.com -- Brian
Fries -- brian.fries@lathropgpm.com -- Grant A. Harse --
grant.harse@lathropgpm.com -- Reid K. Day --
reid.day@lathropgpm.com -- LATHROP GPM LLP, 2345 Grand Boulevard,
Suite 2200, in Kansas City, Missouri.
Carrie E. Josserand -- carrie.josserand@lathropgpm.com -- LATHROP
GPM LLP, 10851 Mastin Boulevard Building 82, Suite 1000, in
Overland Park, Kansas.
Corliss Scroggins Lawson -- Corliss.lawson@ks.gov -- General
Counsel Kansas Department for Children and Families, 555 S Kansas
Avenue, in Topeka, Kansas.
KANSAS: M.B. Suit Gets Final Settlement Approval
------------------------------------------------
In the class action lawsuit captioned as M.B. and S.E. through
their next friend Katharyn McIntyre, et al., v. Laura Howard in her
official capacity as Kansas Department for Children and Families
Secretary, et al., Case No. 2:18-cv-02617-DDC-GEB (D. Kan.), the
Hon. Judge Daniel D. Crabtree entered an order that:
1. By agreeing to settle the litigation, the defendants do
not admit, and specifically deny, any and all liability in
the litigation;
2. The class action settlement, memorialized in the
Settlement Agreement, is "fair, reasonable, and adequate,"
it resulted from extensive arm's length, good faith
negotiations between the parties through experienced
counsel, with the assistance of an independent mediator
and subject-matter expert, and meets all other
requirements of the Federal Rules;
3. The class action settlement, memorialized in the
Settlement Agreement, is finally approved and entered as a
final judgment and order of the court;
4. This action is hereby dismissed with prejudice;
5. To the full extent permissible by the controlling
precedents about subject matter jurisdiction, the court
retains jurisdiction for purposes of enforcing the class
action settlement, memorialized in the Settlement
Agreement;
6. Each Class Member is deemed to have released the Released
Claims, as defined in the Settlement Agreement, against
the defendants, and is barred from prosecuting,
commencing, or continuing any of the Released Claims
against any defendant; and
7. The Plaintiffs' Unopposed Motion for Final Settlement
Approval is granted.
The Court said, "The Plaintiffs have satisfied Fed. R. Civ. P.
23(a) and 23(b)(2)'s requirements for class certification. So, the
court certifies the proposed class for settlement purposes. And,
the parties have established the Settlement Agreement is fair and
reasonable. The court thus grants the plaintiffs' Unopposed Motion
for Final Settlement Approval."
The Plaintiffs, minor children in foster care custody of the Kansas
Department for Children and Families (DCF), filed suit in November
2018 seeking declaratory and injunctive relief against the
Defendants.
A copy of the Court's memorandum and order dated Jan. 28, 2020 is
available from PacerMonitor.com at https://bit.ly/2YNNMzs at no
extra charge.[CC]
KANYE WEST: Harris & Ruble Files Second Labor Class Action Suit
---------------------------------------------------------------
Source reports that Kanye West's Sunday Service was a cultural
reset at a time when his iconic legacy was plagued with controversy
and mental health issues. But it looks like he wasn't taking care
of the choir that serenaded the Sunday service goers weekly.
Attorney Frank Kim filed a lawsuit on behalf of 500 performers,
meanwhile, entertainment lawyer, Harris & Ruble filed a second
lawsuit focusing on at least 300 staff and crew members.
Harris & Ruble allege that the crew members' issue stems from the
rapper's first opera Nebuchadnezzar, which was held at L.A.'s The
Hollywood Bowl in November 2019.
Hundreds of hairstylists, make up artists, and costume designers
worked without compensation or were paid late.
One hairstylist, Raina Leon, alleges that it took 120 days for her
to receive a $550 payment she was owed and was charged $20 to cash
her check.
Michael Pearson, who represents the performers in the class action
suit alleges that they worked for two days without meal or rest
breaks and were only paid $550 despite working overtime.
Additionally, performers claim that many of them sat on the floor
for the 10-hour workdays because there weren't enough chairs. A
shuttle bus drove them from their cars to the venue, however, a
roundtrip shuttle wasn't offered and they had to walk back to their
cars.
Lawyers are allegedly looking for more victims to join the lawsuit.
"They've got hundreds of people on board already, but they're
talking to many, many others, who want to be a part of it. People
are very upset about how they were treated, saying it's their worst
experience. People in the lawsuit are asking their friends who've
worked on previous Sunday Services, and they're jumping at the
chance, they want to get involved and talk about their horrible
time."
Another insider added, "When you do things last minute, it's
disorganized, mistakes will happen. When Kanye West does a
production, he just says to his guys: ‘Make it happen,' he has
different teams of people to do things, and when you're under that
amount of pressure, you cut corners. Anything with film or music
production, they do the art first, it's a case of ‘let's get the
production done and worry if it's legal later."
They continued, "I'm pretty sure Kanye West hasn't done anything
about paying a bill in 20 years, he'd expect people to take care of
it. But Kanye can't have this go to trial, as the jury may not be
Kanye fans and just see a rich rapper ripping off normal folk, he
can settle for much less or be hit with a $30 million legal bill."
News of this class action against Kanye West comes after reports
that the Sunday Service was suing him for $1 million in unpaid
wages. The mogul is also rumored to be divorcing his wife, Kim
Kardashian. [GN]
L&D LLC: Hedges Files ADA Suit in S.D. New York
-----------------------------------------------
A class action lawsuit has been filed against L&D LLC. The case is
styled as Donna Hedges, on behalf of herself and all other persons
similarly situated v. L&D LLC, Case No. 1:21-cv-00973 (S.D.N.Y.,
Feb. 3, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
L&D LLC -- https://www.togabikes.com/ -- is located in New York and
is part of the sporting goods stores industry.[BN]
The Plaintiff is represented by:
Justin A. Zeller, Esq.
THE LAW OFFICE OF JUSTIN ALEXANDER ZELLER, P.C.
277 Broadway, Suite 408
New York, NY 10007
Phone: (212) 229-2249
Fax: (212) 229-2246
Email: Jazeller@zellerlegal.com
LALUMINA LLC: Court Junks Bright et al. Class Suit w/o Prejudice
----------------------------------------------------------------
In the class action lawsuit captioned as JASON BRIGHT, KELLEY
BRIGHT, LAUREN WALKER and all others similarly situated, v.
LALUMINA LLC, et al., Case No. 3:20-cv-00508-SDD-EWD (M.D. La.),
the Hon. Judge Shelly D. Dick entered an order:
1. granting LaLumina's Motion to Dismiss for Failure to State
a Claim Under Rule 12(b)(6); and
2. dismissing the Plaintiffs' claims without prejudice; and
3. directing the Plaintiffs to file an Amended Complaint, if
any, within 30 days of the date of this Ruling.
LaLumina owns a specialty aluminum refinery on the Mississippi
River in Ascension Parish, Louisiana. The Plaintiffs, on behalf of
themselves and others similarly situated, allege that "dust
releases containing excess amounts of aluminum" have emanated from
LaLumina's facility, resulting in property damage and fear and
fright related to exposure, as well as nuisance and inconvenience.
In LaLumina's view, the allegations in Plaintiffs' Complaint are
vague and fail to state a valid claim. Specifically, LaLumina
contends that Plaintiffs' claims are prescribed, because the only
dust release they plead with specificity occurred in December 2018,
more than a year before this suit was filed in June 2020. The
Plaintiffs disagree, noting that their Complaint also alleges a
dust release "occurring as late as April 2020. "In any event,
Plaintiffs argue, they have adequately pled a continuing tort such
that any and all dust releases, even those that would otherwise be
prescribed, are validly included in their claim.
A copy of the Court's ruling dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3jixSGK at no extra charge.[CC]
LIFEVANTAGE CORP: Discovery in Smith Suit Ongoing
-------------------------------------------------
LifeVantage Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 2, 2021, for the
quarterly period ended December 31, 2020, that discovery is ongoing
in Smith v. LifeVantage Corp., Case No. 3:18-cv-a35.
On January 24, 2018, a purported class action was filed in the
United States District Court for the District of Connecticut,
entitled Smith v. LifeVantage Corp., Case No. 3:18-cv-a35 (D.
Connecticut filed Jan. 24, 2018). In this action, Plaintiffs
alleged that the Company, its Chief Executive Officer, Chief Sales
Officer and Chief Marketing Officer operated a pyramid scheme in
violation of a variety of federal and state statutes, including
Racketeer Influenced and Corrupt Organizations Act (RICO) and the
Connecticut Unfair Trade Practices Act.
On April 16, 2018, the Company filed motions with the court to
dismiss the complaint against LifeVantage, dismiss the complaint
against the Company's executives, transfer the venue of the case
from the State of Connecticut to the State of Utah, and contest
class certification.
On July 23, 2018, the parties filed a stipulation with the Court
agreeing to transfer the case to the Federal District Court for
Utah. On September 20, 2018, Plaintiffs filed an amended complaint
in Utah.
As per the parties stipulated agreement, Plaintiff's amended
complaint dropped the RICO and Connecticut state law claims and
removed the Company's Chief Sales Officer and Chief Marketing
Officer as individual defendants (the Chief Executive Officer
remains a defendant in the case).
The Plaintiffs' amended complaint added an antitrust claim,
alleging that the Company fraudulently obtained patents for its
products and is attempting to use those patents in an
anti-competitive manner. The Company filed a Motion to Dismiss the
amended complaint on November 5, 2018, Plaintiffs filed a response
to the Company's Motion to Dismiss on December 17, 2018, and the
Company filed a reply brief on January 10, 2019.
The Court ruled on the motion on December 5, 2019, dismissing three
of the Plaintiff's four claims, including the antitrust claim,
unjust enrichment claim, and the securities claim for the sale of
unregistered securities. On December 19, 2019, Plaintiffs filed a
second amended complaint which included three causes of action,
including a 10(b)(5) securities fraud claim, and renewed claims
relating to the sale of unregistered securities and unjust
enrichment.
LifeVantage filed a Motion to Dismiss the Second Amended Complaint
on January 28, 2020, and with the Motion fully briefed by the
parties as of March 17, 2020, the Court decided the matter on the
parties' briefs only on November 25, 2020.
In its decision, the Court dismissed with prejudice the Plaintiffs'
Section 12(1) claim (sale of an unregistered security), because the
Court concluded the claim is time-barred. The Court also dismissed
the Plaintiffs' claim for unjust enrichment against LifeVantage
without prejudice, but the Plaintiffs subsequently agreed to drop
this claim going forward.
The court found that the Plaintiffs had sufficiently pled their
claim under Section 12(2) (offer to sell a security that misstates
or omits a material fact by means of a prospectus or oral
communication). LifeVantage filed its Answer to the Second Amended
Complaint on December 23, 2020, responding to the Plaintiffs'
remaining securities claims.
As reported previously, on May 6, 2020, the Court issued a formal
scheduling order to confirm the parties' agreement on a schedule
for discovery and other litigation matters, and initial discovery
has begun and will continue per the order.
LifeVantage said, "The Company has not established a loss
contingency accrual for this lawsuit as it believes liability is
not probable or estimable, and the Company plans to vigorously
defend against this lawsuit. Nonetheless, an unfavorable resolution
of this matter could have a material adverse effect on the
Company's business, results of operations or financial condition."
LifeVantage Corporation engages in the identification, research,
development, and distribution of nutraceutical dietary supplements
and skincare products. The company sells its products through a
direct sales model, as well as a network of independent
distributors in the United States, Japan, Hong Kong, Australia,
Canada, Mexico, Thailand, the United Kingdom, the Netherlands,
Germany, Spain, and Taiwan. LifeVantage Corporation is
headquartered in Sandy, Utah.
LONG M. NGUYEN: Winters Files TCPA Suit in D. Arizona
-----------------------------------------------------
A class action lawsuit has been filed against Nguyen, et al. The
case is styled as Richard Winters, Jr., individually and on behalf
of all others similarly situated v. Long M. Nguyen, Long M. Nguyen
PLLC, Case No. 2:21-cv-00185-MTM (D. Ariz., Feb. 2, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for restrictions of use of telephone
equipment.
Long M. Nguyen -- https://longmnguyen.com/ -- is a licensed real
estate agent in Arizona, serving Phoenix and surrounding
cities.[BN]
The Plaintiff is represented by:
David James McGlothlin, Esq.
Ryan Lee McBride, Esq.
KAZEROUNI LAW GROUP APC
2633 E Indian School Rd., Ste. 460
Phoenix, AZ 85016
Phone: (602) 900-1288
Email: david@kazlg.com
ryan@kazlg.com
LOOMIS ARMORED: Gaskin Seeks to Recover Unpaid Overtime Premiums
----------------------------------------------------------------
Delante Gaskin, individually and on behalf of those similarly
situated, Plaintiff, v. Loomis Armored US, LLC, Defendant, Case No.
21-cv-00095 (E.D. Va., January 25, 2021), seeks to recover monetary
damages, liquidated damages or interest, attorneys' fees, and
costs, for willful violations of the Fair Labor Standards Act and
the District of Columbia wage-and-hour laws.
Loomis provides nationwide cash management and vaulting services,
and ATM logistics, transporting cash and valuables in armored
vehicles to and from stores, banks, deposit boxes and ATMs. Gaskin
was employed by Loomis as an armed guard driver and armed messenger
from May 2019 through April 2020. He claims to be denied overtime
compensation at one and one-half times his regular rate for all
hours worked in excess of forty hours per workweek. [BN]
Plaintiff is represented by:
Scott D. Perlmuter, Esq.
Allen C. Tittle, Esq.
TITTLE & PERLMUTER
4106 Bridge Ave.
Cleveland, OH 44113
Tel: (216) 308-1522
Email: scott@tittlelawfirm.com
- and -
Benjamin W. Glass, III, Esq.
BENJAMIN W. GLASS, III & ASSOC., PC
3998 Fair Ridge Drive, #250
Fairfax, VA 22033
Tel: (703) 591-9829
Fax: (703) 783-0686
Email: Ben@BenGlassLaw.com
LOVELY SKIN: Sanchez Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Lovely Skin, Inc. The
case is styled as Christian Sanchez, on behalf of himself and all
others similarly situated v. Lovely Skin, Inc., Case No.
1:21-cv-00929 (S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
LovelySkin -- https://www.lovelyskin.com/ -- is a skin care, hair
care & beauty Website for dermatological products.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
LUMENTUM HOLDINGS: Discovery Ongoing in Karri Class Action
-----------------------------------------------------------
Lumentum Holdings Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 2, 2021, for the
quarterly period ended December 26, 2020, that discovery is ongoing
in SaiSravan B. Karri v. Oclaro, Inc., et al., No.
3:18-cv-03435-JD.
On December 10, 2018, the company completed a merger with Oclaro,
Inc., a provider of optical components and modules for the
long-haul, metro and data center markets. Oclaro's products provide
differentiated solutions for optical networks and high-speed
interconnects driving the next wave of streaming video, cloud
computing, application virtualization and other bandwidth-intensive
and high-speed applications.
In connection with the company's acquisition of Oclaro, seven
lawsuits were filed by purported stockholders of Oclaro challenging
the proposed merger.
Two of the seven suits were putative class actions filed against
Oclaro, its directors, Lumentum, Prota Merger Sub, Inc. and Prota
Merger, LLC: Nicholas Neinast v. Oclaro, Inc., et al., No.
3:18-cv-03112-VC, in the United States District Court for the
Northern District of California (filed May 24, 2018); and Adam
Franchi v. Oclaro, Inc., et al., No. 1:18-cv-00817-GMS, in the
United States District Court for the District of Delaware (filed
June 9, 2018). Both the Neinstat Lawsuit and the Franchi Lawsuit
were voluntarily dismissed with prejudice.
The other five suits, styled as Gerald F. Wordehoff v. Oclaro,
Inc., et al., No. 5:18-cv-03148-NC, Walter Ryan v. Oclaro, Inc., et
al., No. 3:18-cv-03174-VC, Jayme Walker v. Oclaro, Inc., et al.,
No. 5:18-cv-03203-EJD, Kevin Garcia v. Oclaro, Inc., et al., No.
5:18-cv-03262-VKD, and SaiSravan B. Karri v. Oclaro, Inc., et al.,
No. 3:18-cv-03435-JD, were filed in the United States District
Court for the Northern District of California on May 25, 2018, May
29, 2018, May 30, 2018, May 31, 2018, and June 9, 2018,
respectively.
These five Lawsuits named Oclaro and its directors as defendants
only and did not name Lumentum. The Wordehoff, Ryan, Walker, and
Garcia Lawsuits have been voluntarily dismissed, and the Wordehoff,
Ryan, and Walker dismissals were with prejudice. The Karri Lawsuit
has not yet been dismissed. The Ryan Lawsuit was, and the Karri
Lawsuit is, a putative class action.
The Lawsuits generally alleged, among other things, that Oclaro and
its directors violated Section 14(a) of the Securities Exchange Act
of 1934, as amended, and Rule 14a-9 promulgated thereunder by
disseminating an incomplete and misleading Form S-4, including
proxy statement/prospectus. The Lawsuits further alleged that
Oclaro's directors violated Section 20(a) of the Exchange Act by
failing to exercise proper control over the person(s) who violated
Section 14(a) of the Exchange Act.
The remaining Lawsuit (the Karri Lawsuit) currently purports to
seek, among other things, damages to be awarded to the plaintiff
and any class, if a class is certified, and litigation costs,
including attorneys' fees.
A lead plaintiff and counsel has been selected, and an amended
complaint was filed on April 15, 2019, which also names Lumentum as
a defendant.
A motion to dismiss the amended complaint was granted in part and
denied in part by the court on October 8, 2020. On December 1,
2020, defendants answered the amended complaint.
On December 23, 2020, defendants filed a motion for leave to file a
motion for reconsideration of the Court's October 8 order on the
motion to dismiss, which was denied on January 29, 2021. The Karri
Lawsuit remains pending with the parties currently in discovery.
Defendants intend to defend the Karri Lawsuit vigorously.
Lumentum Holdings Inc. manufactures and sells optical and photonic
products in the Americas, the Asia-Pacific, Europe, the Middle
East, and Africa. The company operates through two segments,
Optical Communications and Commercial Lasers. Lumentum Holdings
Inc. was incorporated in 2015 and is headquartered in Milpitas,
California.
MARIBEL'S SWEETS: Hedges Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Maribel's Sweets,
Inc. The case is styled as Donna Hedges, on behalf of herself and
all other persons similarly situated v. Maribel's Sweets, Inc.,
Case No. 1:21-cv-00977 (S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violations of the Americans
with Disabilities Act.
Maribel's Sweets, Inc. -- https://mariebelle.com/ -- is located in
New York and is part of the specialty food stores industry.[BN]
The Plaintiff is represented by:
Justin A. Zeller, Esq.
THE LAW OFFICE OF JUSTIN ALEXANDER ZELLER, P.C.
277 Broadway, Suite 408
New York, NY 10007
Phone: (212) 229-2249
Fax: (212) 229-2246
Email: Jazeller@zellerlegal.com
MARYLAND: Forced Administration of Medications in Mercer Affirmed
-----------------------------------------------------------------
In the lawsuit styled JASON MERCER v. THOMAS B. FINAN CENTER, Case
No. 1398, September Term, 2019 (Md. Spec. App.), the Court of
Special Appeals of Maryland issued an Opinion affirming the circuit
court's judgment upholding the involuntary administration of
anti-psychotic medications.
Appellant Mercer is a patient involuntarily confined to the Thomas
B. Finan Center, a psychiatric facility of the Maryland Department
of Health. Mercer had been diagnosed with schizoaffective disorder,
bipolar type. He was involuntarily placed at the Finan Center after
being found not criminally responsible for second-degree assault
and unauthorized use of a motor vehicle.
A clinical review panel decided to administer anti-psychotic
medications to him against his will. An administrative law judge
(ALJ) approved the decision. On August 26, 2019, Mercer petitioned
for judicial review of the ALJ's decision in the Circuit Court for
Allegany County. The circuit court held the hearing on September 4,
2019. On September 5, 2019, the court issued its decision affirming
the ALJ's decision. On October 1, 2019, Mercer filed the appeal.
In the appeal, Mercer claims that he had a statutory right to
counsel at the administrative hearing and that the ALJ, in denying
his request for counsel, deprived him of his procedural due process
rights. Mercer presents two questions for appellate review, which
the Appellate Court has rephrased for clarity:
I. Whether the ALJ erred or abused her discretion in treating
Mercer's request for the assistance of counsel as a request
for a postponement and denying the request for want of good
cause; and
II. Whether the ALJ deprived Mercer of procedural due process
by not conducting an on-the-record waiver colloquy to
determine whether he had waived his right to request
representation.
The Appellate Court concludes that Mercer had the statutory right
to request the assistance of counsel at the hearing, but that he
had declined the assistance of counsel until the hearing began. In
these circumstances, the Appellate Court holds that the ALJ did not
err or abuse her discretion in treating Mercer's belated request
for the assistance of counsel as a request for a postponement, for
which he lacked good cause.
Judge Kevin F. Arthur, writing for the Appellate Panel, opines that
the Appellate Court concludes that because Health-General Article
Section 10-708 provides patients with a right to request
representation that they must affirmatively invoke, and because
Mercer affirmatively declined the assistance of counsel until just
before the hearing began, the ALJ did not err or abuse her
discretion in deciding not to postpone the hearing until counsel
could be obtained.
The Appellate Court also holds that the ALJ did not deprive Mercer
of procedural due process in not conducting an on-the-record
colloquy to confirm that he had knowingly and voluntarily waived
the right to counsel. Accordingly, it affirms the judgment.
Based on the balancing test of Mathews v. Eldridge, 424 U.S. 319,
332 (1976), the Appellate Court concludes that the ALJ did not
deprive Mercer of procedural due process in declining to postpone
the hearing. Mercer was informed of his right to request
representation and of the consequences of representing himself at
the hearing. The ALJ confirmed, by reviewing the appeals form and
by conferring with Lisa Olinger, Mercer's lay advisor, that Mercer
had previously declined to exercise his right to counsel.
Therefore, the ALJ appropriately considered Mercer's request for
counsel as a request to postpone the administrative hearing and had
substantial evidence to deny this request.
For these reasons, the Appellate Court affirms the ALJ's decision
approving the clinical review panel's decision to medicate Mercer.
Judgment of the circuit court for Allegany County affirmed;
Appellant to bear all costs.
A full-text copy of the Court's Opinion dated Jan. 28, 2021, is
available at https://tinyurl.com/4ku5fkud from Leagle.com.
MCKESSON CORP: Marion Diagnostic Center Suit Dismissed
------------------------------------------------------
McKesson Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 2, 2021, for the
quarterly period ended December 31, 2020, that the class action
suit entitled, Marion Diagnostic Center, LLC v. McKesson
Corporation, et al., has been dismissed.
On September 25, 2018, Marion Diagnostic Center, LLC and Marion
Healthcare, LLC filed a class action complaint in the United States
District Court for the Eastern District of Pennsylvania alleging
that the Company and its subsidiary, McKesson Medical-Surgical
Inc., among others, violated the Sherman Act by restraining trade
in the sale of generic drugs. Marion Diagnostic Center, LLC v.
McKesson Corporation, et al., No. 2:18-cv-4137; MDL No. 16-MD-2724.
On June 26, 2019, the court granted the Company's motion to dismiss
and authorized plaintiffs to seek leave to amend the claims against
the Company. On December 30, 2019, a group of independent
pharmacies and a hospital filed a class action complaint alleging
that the Company and other distributors violated the Sherman Act by
colluding with manufacturers to restrain trade in the sale of
generic drugs. Reliable Pharmacy, et al. v. Actavis Holdco US, et
al., No. 2:19-cv-6044; MDL No. 16-MD-2724.
The complaint seeks relief including treble damages, disgorgement,
attorney fees, and costs in unspecified amounts.
The court in Marion Diagnostic ordered dismissal of plaintiff's
complaint with prejudice on November 23, 2020 pursuant to a
stipulation of the parties, but without waiving any rights Marion
Diagnostic Center, LLC and Marion Healthcare, LLC may have to
participate in a settlement or judgment of any other action in the
MDL as a class member.
McKesson Corporation provides pharmaceuticals and medical supplies
in the United States and internationally. It operates in three
segments: U.S. Pharmaceutical and Specialty Solutions, European
Pharmaceutical Solutions, and Medical-Surgical Solutions. McKesson
Corporation was founded in 1833 and is headquartered in Irving,
California.
MEAD JOHNSON: Sanchez Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Mead Johnson &
Company, LLC. The case is styled as Christian Sanchez, on behalf of
himself and all others similarly situated v. Mead Johnson &
Company, LLC, Case No. 1:21-cv-00958 (S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violations of the Americans
with Disabilities Act.
Mead Johnson & Company, LLC -- https://www.meadjohnson.com/ -- is
an American division and subsidiary of British company Reckitt
Benckiser. It is a manufacturer of infant formula both domestically
and globally with its flagship product Enfamil.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
MEARS GROUP: FLSA Collective Action Certification Sought
--------------------------------------------------------
In the class action lawsuit captioned as JARED CHARPENTIER, On
Behalf of Himself and All Others Similarly Situated, v. MEARS
GROUP, INC., Case No. 3:20-cv-02004-K (N.D. Tex.), the Parties ask
the Court to enter an order:
1. certifying a collective action pursuant to the Fair Labor
Standards Act (FLSA) as follows:
"all current and/or former hourly paid sewer camera
employees of the Defendant who are/were based at the
Defendant's location in Grand Prairie, Texas who
were allegedly not paid for all travel time between
the Yard and worksites at any time during the time period
of three years preceding the date of the Order granting
this Motion to the date of the Order;"
2. directing the Defendant to produce to the Plaintiff's
counsel, in a usable electronic format no later than 21
days from entry of the Court's Order granting this Motion,
the full names (including middle if known), last known
addresses, e-mail addresses, and dates of employment of
all Putative Collective Action Members;
3. directing the Plaintiff's counsel to mail, via First Class
U.S. Mail, and where possible, also e-mail the Notice
Packet to each of the Putative Collective Action Members
identified by Defendant as required by this Order;
4. allowing a 90-day notice period commencing three days
after the Plaintiff's counsel mails the court-approved
Notice Packet to the Putative Collective Action Members;
Mears is the premier provider of engineering, design and
construction services to the pipeline and utility industries.
A copy of the Parties' motion to certify class dated Jan. 28, 2020
is available from PacerMonitor.com at https://bit.ly/3cKvd7t at no
extra charge.[CC]
The Plaintiff is represented by:
Allen R. Vaught , Esq.
NILGES DRAHER VAUGHT PLLC
1910 Pacific Avenue, Suite 9150
Dallas, TX 75201
Telephone: (214) 251-4157
Facsimile: (214) 261-5159
E-mail: avaught@txlaborlaw.com
The Defendant is represented by:
John B. Brown, Esq.
OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C.
500 Preston Commons
8117 Preston Road
Dallas, TX 75225
Telephone: (214) 987-3800
Facsimile: (214) 987-3927
E-mail: john.brown@ogletreedeakins.com
MEDNAX INC: Failed to Protect Patient Medical Info, Bean Suit Says
------------------------------------------------------------------
Abigail T. Bean, as legal guardian of C.B., and all others
similarly situated v. MEDNAX, Inc., a Florida Corporation, and
Pediatrix Medical Group, Inc., Case No. 0:21-cv-60111-BB (S.D.
Fla., January 18, 2021) seeks to hold Defendants responsible for
the harms they caused C.B. and the nearly 1.3 million similarly
situated persons in the massive and preventable data breach that
took place between June 17, 2020 and June 22, 2020 by which cyber
criminals, through a phishing event, infiltrated Defendants'
inadequately protected Microsoft Office 365-hosted business email
accounts where sensitive personal information was being kept
unprotected.
The complaint alleges that cyber criminals gained access to certain
of Defendants' business email accounts with the apparent intention
of stealing protected personal information and protected health
information of hundreds of thousands of individuals, including
newborn babies and young children, whose information was stored on
Defendants' computer systems and in Defendants' business email
accounts. As a result of the data breach, Plaintiff and Class
members have already suffered damages, the suit says.
Abigail T. Bean is the legal guardian of C.B. and they are citizens
and residents of Oklahoma. Plaintiff's minor child, C.B., is a
patient of, and receives medical services from Defendants.
MEDNAX is a physician-led healthcare organization that partners
with hospitals, health systems and healthcare facilities to offer
clinical services spanning the continuum of care, as well as
revenue cycle management, patient engagement and perioperative
improvement consulting solutions.
Pediatrix, a MEDNAX company established in 1979, is a U.S provider
of maternal-fetal, newborn and pediatric subspecialty
services.[BN]
The Plaintiff is represented by:
Michael S. Hill, Esq.
MENZER & HILL, P.A.
7280 W. Palmetto Park Road, Suite 203
Boca Raton, FL 33433
Telephone: (561)-327-7205
Facsimile: (561)-880-8449
E-mail: mhill@menzerhill.com
- and -
William B. Federman, Esq.
FEDERMAN & SHERWOOD
10205 N. Pennsylvania Ave.
Oklahoma City, OK 73120
Telephone: (405) 235-1560
Facsimile: (405) 239-2112
E-mail: wbf@federmanlaw.com
MERCHANT CAPITAL: Fabricant Sues Over Unsolicited Telephone Calls
-----------------------------------------------------------------
TERRY FABRICANT, individually and on behalf of all others similarly
situated, Plaintiff v. MERCHANT CAPITAL SOURCE, LLC, and DOES 1
through 10, inclusive, and each of them, Defendant, Case No.
2:21-cv-00784 (C.D. Cal., January 28, 2021) brings this complaint
as a class action against the Defendant seeking damages and any
other available legal or equitable remedies from the Defendant's
alleged negligent and willful violations of the Telephone Consumer
Protection Act.
The Plaintiff claims that the Defendant contacted her on her
cellular telephone number ending in -9210 beginning in or around
October 2019. Purportedly, the Defendant has been using an
"automatic telephone dialing system" (ATDS) in placing its calls to
the Plaintiff and other similarly situated individuals in an
attempt to promote its services. Allegedly, the Defendant did not
obtain the Plaintiff's and other similarly situated individuals'
"prior express consent" to receive calls using an ATDS or an
artificial or prerecorded voice on their cellular telephone.
As a result of the Defendant's unsolicited telemarketing calls, the
Plaintiff and other similarly situated individuals were harmed by
causing them to incur certain charges or reduced telephone time for
which they had previously paid, and invading their privacy, the
suit says.
Merchant Capital Source, LLC is a business lending company. [BN]
The Plaintiff is represented by:
Todd M. Friedman, Esq.
Adrian M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN, P.C.
21550 Oxnard St., Suite 780
Woodland Hills, CA 91367
Tel: (323) 306-4234
Fax: (866) 633-0228
E-mail: tfriedman@toddflaw.com
abacon@toddflaw.com
MERCURY GENERAL: Class Certification Briefing Schedule Modified
---------------------------------------------------------------
In the class action lawsuit captioned as MAO-MSO RECOVERY II, LLC a
Delaware entity; MSP RECOVERY CLAIMS, SERIES LLC, a Delaware
entity; MSPA CLAIMS 1, LLC, a Florida entity, v. MERCURY GENERAL, a
California company, its subsidiaries and affiliates, Case No. e
2:17-cv-02525-AB-AFM (C.D. Cal.), the Hon. Judge Andre Birotte Jr.
entered an order granting joint stipulation regarding proposed
modification of class certification briefing and pre-trial schedule
as follows.
Event Previous New
Defendant files opposition Feb. 12, 2021 March 1, 2021
to motion for class
certification:
Plaintiffs file reply Feb. 26. 2021 March 29, 2021
in support of motion for
class certification:
Hearing on motion for March 26, 2021 April 23, 2021
class certification:
Expert Disclosure (Initial): -- June 11, 2021
Expert Disclosure (Rebuttal) -- July 16, 2021
Non-Expert Discover June 25, 2021 Sept. 3, 2021
Cut-Off:
Expert Discovery July 9, 2021 Sept. 3, 2021
Cut-Off:
Last Day to Hear July 20, 2021 Sept. 10, 2021
Motions:
Deadline to complete Aug. 27, 2021 Oct. 15, 2021
settlement conference:
Trial Filings Oct. 22, 2021 No change
(first round):
Trial Filings Nov. 5, 2021 No change
(second round):
Final Pre-Trial Conference: Nov. 19, 2021 No change
Trial: Dec. 7, 2021 No change
Mercury General is a multiple-line insurance organization offering
personal automobile, homeowners, renters and business insurance.
Founded in 1961 and headquartered in Los Angeles, Mercury has
assets in excess of $4 billion, employs 4,500 people and has more
than 8,000 independent agents in 11 states.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3jkcJMr at no extra charge.[CC]
METROPOLITAN CORRECTIONAL: Inmates File COVID-19 Class Action Suit
------------------------------------------------------------------
Madeline Kenney, writing for Chicago Sun Times, reports that
inmates at the Metropolitan Correctional Center claim the downtown
federal high-rise jail's "haphazard and insufficient" measures to
contain the coronavirus pandemic led to two major outbreaks,
endangering people in custody and staff.
Some of those failed measures include a lack of cleaning supplies
and proper social distancing as well as a "poorly implemented and
incomplete" isolation and quarantine process, according to a
proposed class-action lawsuit filed on Jan. 29 in federal court in
Chicago. Officials also allegedly turned "a blind eye" to staff who
didn't wear masks and ignored some people in custody who asked for
tests.
The plaintiffs, Ricky Price and Kevin Conway, both inmates at the
MCC on West Van Buren, allege that the Federal Bureau of Prisons
and MCC officials have "failed not once, but twice, to protect the
people in their custody" from the pandemic.
As a result, more than 200 inmates have tested positive for
COVID-19 at the facility, according to the Bureau of Prisons'
website, though the lawsuit suggests "the real infection rate was
certainly higher" than that.
"It is hard to define what MCC officials are doing as a strategy
for confronting COVID," Camille Bennett, director of the Prison
Reform Project at the ACLU of Illinois and an attorney for the
inmates, said. "They failed in the spring and they have not learned
a single lesson. There must be a specific, science-based plan to
protect those detained at the MCC."
Despite two MCC staff members testing positive for the virus in
late March, the facility carried on "business as usual" in many
ways, the lawsuit said. Inmates still worked their jobs throughout
the building, including in the kitchen, though they were not
provided masks, and many staff didn't wear masks or gloves, the
lawsuit said.
The MCC mostly relied on residents self-reporting their symptoms,
the lawsuit said. However, many allegedly were deterred from
reporting their symptoms because they didn't want to relocate to
the secure-housing unit, which is normally for disciplinary
purposes. The lawsuit described those units as "small dark cells"
that were "dark and noisy."
Those who did become sick weren't properly treated, the lawsuit
alleges, leaving residents "terrified and depressed."
Bar soap is limited along with other essential cleaning supplies,
Price and Conway said. And laundry services are backed up, leaving
some residents unable to wash their sheets for weeks at a time, the
lawsuit said.
Price and Conway also said cleaning of common spaces was
"haphazard." Showers weren't cleaned after individual use, and
computers, iPads and other high-touch items weren't disinfected
after each use.
In fact, the disinfecting of shared surfaces and cleaning is so
poor that one floor had an outbreak of MRSA (Methicillin-resistant
Staphylococcus aureus) last summer, the lawsuit said.
Conway, who tested positive for the virus in May, and Price said
MCC had time to put proper protocols in place to ensure inmate and
staff safety "and did not use it."
"They have failed their responsibilities under federal law, the
Constitution, and their own regulations. It is now time to order
them to protect Plaintiffs and the Class," the lawsuit said.
Price and Conway allege that the MCC's mishandling of the pandemic
has "damaged residents psychologically."
The lawsuit is calling on the Federal Bureau of Prisons and MCC
officials to develop a vaccination distribution plan -- which
includes educating residents and staff about the shots -- and to
start administering vaccines to residents 55 and older. It's also
demanding the jail design a better quarantine and isolation
process, which includes testing all new residents at intake and
putting them in a separate and safe holding space.
Price and Conway also asked the MCC to hire an infectious disease
and public health expert to advise the facility's handling of the
pandemic as well as enforcing universal masking and providing more
soap, sanitation stations and cleaning supplies for residents among
other things.
Contributing: Jon Seidel [GN]
MIDLAND CREDIT: Walden Files FDCPA Suit in N.D. Texas
-----------------------------------------------------
A class action lawsuit has been filed against Midland Credit
Management, Inc., et al. The case is styled as Lititia Walden,
individually and on behalf of all others similarly situated v.
Midland Credit Management, Inc., John Does 1-25, Case No.
3:21-cv-00239-K (N.D. Tex., Feb. 3, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
Midland Credit Management, Inc. (MCM) --
https://www.midlandcredit.com/ -- is a specialty finance company
providing debt recovery solutions for consumers across a broad
range of assets.[BN]
The Plaintiff is represented by:
Nayeem Nur Mohammed, Esq.
LAW OFFICE OF NAYEEM N. MOHAMMED
539 W Commerce St #1899
Dallas, TX 75208
Phone: (972) 767-9099
Email: nayeem@nnmpc.com
- and -
Raphael Deutsch, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (347) 668-9326
Email: rdeutsch@steinsakslegal.com
MIDWESTERN PET: Carlson Claims Pet Foods Contain Toxic Ingredients
------------------------------------------------------------------
TIFFANY CARLSON, on behalf of herself and all others similarly
situated v. MIDWESTERN PET FOODS, INC., Case No.
3:21-cv-00007-RLY-MPB (S.D. Ind., Jan. 13, 2021) is a class action
lawsuit brought on behalf of the Plaintiff and all others similarly
situated pet owners who purchased "Sportmix" Products manufactured
with undisclosed ingredients, which increased the risk of injury or
death to their pets, or which caused actual injury or the death of
their pets.
The complaint alleges that the Defendant manufactured and sold dog
and cat food containing Aflatoxin, a toxin produced by the mold
Aspergillus flavus, despite representations and express warranties
regarding the safety and quality of the pet foods and regarding
Midwestern manufacturing processes to create these products.
Midwestern Pet Foods, Inc. is a manufacturer and seller of pet
foods. [BN]
The Plaintiff is represented by:
Gary M. Klinger, Esq.
MASON LIETZ & KLINGER LLP
227 W. Monroe Street, Ste. 2100
Chicago, IL 60606
Telephone: (202) 429-2290
E-mail: gklinger@masonllp.com
- and -
Gary E. Mason, Esq.
MASON LIETZ & KLINGER LLP
5101 Wisconsin Avenue NW Ste 305
Washington, DC 20016
Telephone: (202) 429-2290
E-mail: gmason@masonllp.com
- and -
Jeffrey S. Goldenberg, Esq.
GOLDENBERG SCHNEIDER, LPA
4445 Lake Forest Drive, Suite 490
Cincinnati, OH 45242
Telephone: (513) 345-8297
Facsimile: (513) 345-8294
E-mail: jgoldenberg@gs-legal.com
- and -
Melissa R. Emert, Esq.
Gary Graifman, Esq.
KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C.
747 Chestnut Ridge Road, Suite 200
Chestnut Ridge, NY 10977
Telephone: (845) 356-2570
Facsimile: (845) 356-4335
E-mail: memert@kgglaw.com
- and -
Charles E. Schaffer, Esq.
LEVIN SEDRAN & BERMAN, LLP
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: cschaffer@lfsblaw.com
MONTE GRAB: Velez Sues Over Unpaid Minimum, Overtime Wages
----------------------------------------------------------
Marcelino Velez, on behalf of himself and all others similarly
situated v. MONTE GRAB & GO MARKET and AHMON FOOD INC. d/b/a S & J
DELI, and FOZY SHAHBAIN and AHMED SALEH, individually, Case No.
1:21-cv-00944 (S.D.N.Y., Feb. 3, 2021) is brought to recover unpaid
minimum wages, unpaid overtime compensation, and spread of hours
pay under the Fair Labor Standards Act and New York Labor Law.
The complaint contends that the Plaintiff was scheduled to work
more than 40 hours each week. He was not compensated at the
appropriate overtime rate of pay for work weeks in which he worked
more than 40 hours. When the Plaintiff was paid by the Defendants,
the Defendants did not provide the Plaintiff with a notation or any
other documentation of his hours worked during that pay period or
his rate of pay. The Defendants never provided the Plaintiff with a
notation or any other documentation of the hours he worked. The
Plaintiff was also not required to clock in or clock out at the
beginning and end of his shift, the suit says.
The Plaintiff worked for Defendants as a deli worker from August
2016 through December 22, 2019.
Monte Grab & Go Market is a deli incorporated in the State of New
York.[BN]
The Plaintiff is represented by:
Jacob Aronauer, Esq.
THE LAW OFFICES OF JACOB ARONAUER
225 Broadway, 3rd Floor
New York, NY 10007
Phone: (212) 323-6980
Email: jaronauer@aronauerlaw.com
MOUNTAIN STATE: Conditional Certification of Employees Class Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as ROGER DAVIS, individually
and on behalf of all others similarly situated, v. MOUNTAIN STATE
PRESSURE SERVICE, INC., Case No. 2:20-cv-01363-WSS (W.D. Pa.), the
Parties ask the Court to enter an order for conditional
certification of the following collective pursuant to 29 U.S.C.
section 216(b):
"current and former employees of Mountain States Pressure
Service, Inc. who were paid a salary and additional
compensation for each day spent working in the field during
three years prior to the Court's Order granting conditional
certification."
The Parties have further agreed to and propose the following
schedule:
Deadline Subject
10 days from order Defendant to provide to Plaintiff's
approving notice to Counsel in Excel (.xlsx) notice to
Putative Collective Putative Collective format the
Members: following information regarding
all Putative Collective Members to the
extent Defendant has this information
in its possession: full name; last
known address(es) with city, state, and
zip code; last known e-mail address(es)
(non-company address); and beginning
date(s) and ending date(s) (if
applicable) during which the Putative
Class Member was paid a salary and
additional compensation for each day
spent working in the field.
21 days from order The Plaintiff's Counsel shall send a
approving notice to copy of the Court-approved Notice
Putative Collective: and Consent Form to the Putative
Collective Members by First Class U.S.
Mail and by email. The Plaintiff's
Counsel shall inform Defendant of the
date on which such Notice and Consent
Form is mailed.
30 days before the The Plaintiff's Counsel shall send a
close of the Notice reminder notice to the Putative
period: Collective Members by First Class U.S.
Mail using only the form of Reminder
Postcard.
60 days from mailing The Putative Collective Members shall
of Notice and Consent have 60 days to return their signed
Forms to Putative Consent forms to Plaintiff's Counsel
Collective Members: for filing with the Court.
A copy of the Parties' motion dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/2YOEyTF at no extra charge.[CC]
The Plaintiff is represented by:
William R. Liles, Esq.
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
wliles@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
- and -
Joshua P. Geist
GOODRICH & GEIST, P.C.
3634 California Ave.
Pittsburgh, PA 15212
Telephone: (412) 766-1455
Facsimile: (412) 766-0300
E-mail: josh@goodrichandgeist.com
The Defendant is represented by:
Mark D. Temple, Esq.
Peter J. Stuhldreher, Esq.
Paul M. Knettel, Esq.
BAKER & HOSTETLER LLP
811 Main Street, Suite 1100
Houston, TX 77002
Telephone: (713) 751-1600
Facsimile: (713) 751-1717
E-mail: mtemple@bakerlaw.com
pstuhldreher@bakerlaw.com
pknettel@bakerlaw.com
- and -
Emily B. Thomas, Esq.
Cira Centre, 12th Floor
2929 Arch Street
Philadelphia, PA 19104-2891
Telephone: (215) 564-8368
Facsimile: (215) 568-3439
E-mail: ethomas@bakerlaw.com
NASHVILLE, TENN: Cayton Asks Court to Modify Class Definition
-------------------------------------------------------------
In the class action lawsuit captioned as JAMES CAYTON, On Behalf of
Himself and All Others Similarly Situated, v. METROPOLITAN
GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY acting by and through THE
ELECTRIC POWER BOARD, d/b/a NASHVILLE ELECTRIC SERVICE, Case No.
3:20-cv-00859 (M.D. Tenn.), the Parties ask the Court to enter an
order:
1. modifying the conditional collective certification
definition in the December 4, 2020 order to:
"all current and former First-Line Supervisors who
recorded "Professional Time," defined as hours worked
between 40 and 45 each workweek at any time since [three
years from date of certification];"
This definition includes Opt-In Plaintiff Rodgers and
those who, like her, were eligible to record "Professional
Time" during the applicable time period;
2. authorizing the issuance of notice to the employees
included in this new collective definition but who were
not included in the prior definition:
-- The Parties request that this notice be sent in the
same manner -- U.S. mail and electronic mail -- as was
authorized to those who were initially sent the notice
in this matter;
-- Specifically, this Court should approve the Notice
and Consent Form, which are substantially similar to
the Notice and Consent Form previously approved by this
Court in this action, with the exception of the
modified collective definition; and
3. setting a a deadline for those employees who meet this
modified definition but who were not included under the
December 4, 2020 conditional collective certification
definition of either March 6, 2021 (the same deadline for
those who meet the initial conditional collective
definition) or 30 days from the date the notice requested
in this motion is issued, whichever is later.
The Parties do not dispute that these employees do not meet the
definition of the conditionally certified collective set forth in
this Court's December 4, 2020 Order. However, Opt-In Plaintiff
Rodgers and others who recorded "Professional Time" but did not
meet the conditional collective definition wish to pursue their
FLSA claims. The proposed modified conditional collective
definition encompasses all NES employees who are eligible to record
"Professional Time."
On December 4, 2020, this Court entered an order conditionally
certifying a collective of Defendant’s employees and authorizing
the issuance of notice to them in accordance with Section 216(b) of
the Fair Labor Standards Act (FLSA):
"all current and former first-line "Operations Supervisors"
who recorded "Professional Time," defined as hours worked
between 40 and 45 each workweek at any time since [three
years from date of certification]. First-line "Operations
Supervisors" include:
-- Meter Maintenance Supervisors
-- Revenue Support Supervisors
-- Work Center Office Supervisors
-- Engineering Supervisors
-- Underground Supervisors
-- Substation Supervisors
-- Maintenance Shop Supervisors
-- Carpenter Supervisors
-- Excavation Supervisors
-- Line Supervisors
-- Pole Supervisors
-- Vegetation Management Supervisors."
Metropolitan government is a consolidation of two governments
rather than the county taking over the city or the city taking over
the county government. It is, in reality, a third form of local
government with a range of options and flexibility to provide for
population shifts to the suburbs. The Metropolitan Charter provides
a mechanism for changes to be made, particularly relating to
improving education, mass transit, public education, and economic
development.
A copy of the Plaintiff's motion dated Jan. 27, 2020 is available
from PacerMonitor.com at https://bit.ly/36GZkZw at no extra
charge.[CC]
The Plaintiff is represented by:
David W. Garrison, Esq.
Joshua A. Frank, Esq.
BARRETT JOHNSTON MARTIN & GARRISON, LLC
Philips Plaza
414 Union Street, Suite 900
Nashville, TN 37219
Telephone: (615) 244-2202
Facsimile: (615) 252-3798
E-mail: dgarrison@barrettjohnston.com
jfrank@barrettjohnston.com
The Defendant is represented by:
Nelson Suarez, Esq.
William A. Blue, Jr.
Nelson Suarez
CONSTANGY, BROOKS, SMITH, & PROPHETE, LLP
(NASHVILLE OFFICE)
401 Commerce Street, Suite 1010
Nashville, TN 37219
Telephone: (615) 320-5200
Facsimile: (615) 321-5891
E-mail: wblue@constangy.com
nsuarez@constangy.com
NASHVILLE, TENN: Class Definition in Cayton Suit Modified
---------------------------------------------------------
In the class action lawsuit captioned as JAMES CAYTON, On Behalf of
Himself and All Others Similarly Situated, v. METROPOLITAN
GOVERNMENT OF NASHVILLE & DAVIDSON COUNTY acting by and through THE
ELECTRIC POWER BOARD, d/b/a NASHVILLE ELECTRIC SERVICE, Case No.
3:20-cv-00859 (M.D. Tenn.), the Hon. Magistrate Judge Alistair
Newbern entered an order that:
-- the conditional collective certification definition set
forth in this Court's December 4, 2020 Order is modified
to the following definition:
"all current and former First-Line Supervisors who
recorded "Professional Time," defined as hours worked
between 40 and 45 each workweek at any time since [three
years from date of certification]";
-- the Notice to Putative Collective Members and a Consent
Form consistent with the document to the Parties' Joint
Motion are approved for distribution to Putative
Collective members who meet this modified class definition
and who did not meet the initial conditional class
certification definition set forth in this Court's
December 4, 2020 Order and shall be used to opt into this
action;
-- the Defendant shall, within five business days of this
Order, provide to Plaintiff's counsel an Excel spreadsheet
containing the names, last-known mailing address, last-
known personal email address (if available, otherwise work
email address), and dates of employment for each Modified
Putative Collective Member (Modified Conditional
Collective List);
-- the Plaintiff and his counsel shall distribute notice and
consent forms to the Parties' Joint Motion via U.S. Mail
and electronic mail using First-Line Supervisor's personal
email address (if available, otherwise work email
address); and
-- the Putative Collective members have until the later of
March 6, 2021 or 30 days from the date notice is
distributed to Modified Putative Collective Members to
return a consent form to join this action.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/39W1aIe at no extra charge.[CC]
NAT'L. ASSOC. OF REALTORS: Leeder Sues Over Broker Commissions
--------------------------------------------------------------
Judah Leeder, individually and on behalf of all others similarly
situated, Plaintiffs, v. The National Association of Realtors
(NAR), Realogy Holdings Corp., Homeservices of America, Inc., BHH
Affiliates, LLC, HSF Affiliates, LLC, The Long & Foster Companies,
Inc., RE/MAX LLC and Keller Williams Realty, Inc., Defendants,
Case No. 21-cv-00430 (N.D. Ill., January 25, 2021), seeks damages,
injunctive relief, and other relief under Sections 4, 12, and 16 of
the Clayton Act including Section 2 of the Sherman Antitrust Act,
and for violation of the Unfair Competition Act.
NAR is a trade association headquartered in Chicago, Illinois with
over 1.4 million members and is the leading national trade
association of real estate brokers and agents. Realogy Holdings
Corp., Homeservices of America, Inc., BHH Affiliates, LLC, HSF
Affiliates, LLC, The Long & Foster Companies, Inc., RE/MAX LLC and
Keller Williams Realty, Inc. are real estate brokerage firms.
A seller-broker's compensation is specified in a listing agreement,
a contract between the seller and the seller-broker that details
the terms of the seller-broker services, such as requiring that
property be listed on Multiple Listing Services. The listing
agreement specifies the total commission that a home seller will
pay to the seller-broker, often with a portion of that amount
earmarked to be paid to the buyer agent in the event the buyer has
a broker. Despite agent representations that such services do not
cost home buyers anything, home buyers allegedly pay a hefty cost
for supra-competitive commissions at levels fixed by the
Defendants, which in turn lead to higher home prices paid by
buyers.
Judah Leeder purchased a home in Englewood, New Jersey through
ReMax Properties Plus and the seller was represented by Prominent
Properties Sotheby's. The home Mr. Leeder purchased was listed on
the New Jersey Multiple Listing Service, Inc. owned by an NAR
member broker. [BN]
Plaintiff is represented by:
George A. Zelcs, Esq.
Randall P. Ewing, Jr., Esq.
Jonathon Byrer, Esq.
Ryan Z. Cortazar, Esq.
KOREIN TILLERY, LLC
205 North Michigan Avenue, Suite 1950
Chicago, IL 60601
Telephone: (312) 641-9750
Facsimile: (312) 641-9751
Email: gzelcs@koreintillery.com
rewing@koreintillery.com
jbyrer@koreintillery.com
rcortazar@koreintillery.com
- and -
Michael E. Klenov, Esq.
Jamie Boyer, Esq.
Carol O'Keefe, Esq.
KOREIN TILLERY, LLC
505 North 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: (314) 241-4844
Facsimile: (314) 241-3525
Email: mklenov@koreintillery.com
jboyer@koreintillery.com
cokeefe@koreintillery.com
- and -
Vincent Briganti, Esq.
Christian Levis, Esq.
Noelle Feigenbaum, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
Email: vbriganti@lowey.com
clevis@lowey.com
nfeigenbaum@lowey.com
NEW YORK: NYCTA Must Replace Agents, Court Rules in Espaillat Suit
------------------------------------------------------------------
In the lawsuit styled ADRIANO ESPAILLAT, MICHAEL SCHWEINSBERG,
ROBERT KELLY, Petitioners v. PATRICK FOYE, SARAH FEINBERG,
Respondents, Case No. 161335/2020 (N.Y. Sup.), the Supreme Court of
New York for New York County enjoined the Respondents from failing
to replace Station Agents during their lunch periods.
The lawsuit is a class action Article 78 proceeding brought by
named Petitioners Congressman Espaillat, Schweinsberg, and Kelly,
on behalf of all subway riders, against Respondents Patrick Foye,
CEO of the Metropolitan Transportation Authority ("MTA"), and Sara
Feinberg, the President of the New York City Transit Authority
("NYCTA").
Petitioner Espaillat is the elected Congressional Representative
for the 13th Congressional District in New York. Petitioner
Schweinsberg is the President of the 504 Democratic Club, an
association comprised of, and advocating for, persons with
disabilities. Petitioner Kelly is Vice President of the Stations
Department of the Transport Workers Union of Greater New York,
Local 100, a labor union representing 36,000 employees of the MTA
and NYCTA.
The MTA is a New York public authority, which coordinates mass
transit throughout southeastern New York. NYCTA is a subsidiary of
the MTA and provides subway service in the City of New York. There
are approximately 470 station booths in the New York City subway
system, which are staffed by approximately 2,479 station agents.
The Petitioners seek an order prohibiting certain changes proposed
by NYCTA from going into effect on the planned date of January 31,
2021. The Petitioners allege that the Respondents failed to go
through the statutory procedural process required by Public
Authorities Law Sections 1204[5] and 1205[15], as the proposed
changes constitute a reduction in service and public access to the
New York City subway.
Motion sequence 001 is the Petitioners' order to show cause for
injunctive relief, enjoining the Respondents from enacting the
proposed changes unless and until public hearings are conducted in
accordance with the Public Authorities Law. A hearing was held on
January 12 and January 15, 2021, to address the threshold issue of
whether the proposed changes constituted a reduction in either
service or access.
Pursuant to a collective bargaining agreement between Local 100 and
the Respondents, station agents pick their job assignments every
six months in order of seniority. The selection process as a whole
is referred to as a "pick" and each year the MTA conducts a "Summer
Pick" and a "Winter Pick." During each pick, station agents consult
a "pick book" to select their jobs and schedules from five job
categories.
Most station booths are attended to by station agents in 3 separate
eight-hour shifts, the AM, PM, and Night shifts ("station jobs"),
each of which are afforded a 30-minute lunch period. Also available
are Vacation Relief jobs, wherein an agent covers for an agent
taking his or her vacation time; Regular Days Off jobs, wherein an
agent covers for an agent taking his or her scheduled two days off
per week; and Extra jobs, wherein an agent is instructed to call a
central coordinator each day to be staffed on an ad hoc basis.
Last, and most relevant to this case, are Lunch Relief jobs, a job
shift wherein a Lunch Relief agent arrives at a subway booth to
replace an agent working a station job for a 30-minute period so
that the booth can remain open while the station agent takes his or
her lunch period. Each Lunch Relief agent covers 6-8 booths per
day.
The proposed changes at issue in the case were first outlined to
Petitioner Kelly in a September 28, 2020 letter. In addition, the
Respondents proposed eliminating 47 eight-hour shifts across 20
stations and eliminating an additional eight-hour shift at 7 other
stations.
Most pertinent to the case is the proposed elimination of the 185
"Lunch Relief" jobs. The Petitioners allege that the elimination of
the Lunch Relief jobs will result in most booths being locked and
closed for between 1,110 and 1,480 half-hour periods per week,
thus, constituting a reduction in service and access and triggering
the public hearings requirement, pursuant to PAL Sections 1204[5]
and 1205[15].
The Respondents oppose the petition, arguing that the elimination
of Lunch Relief jobs is merely a reallocation of staff, which does
not constitute a reduction in public access, but rather increases
the Respondents' flexibility to ensure continued public access. The
Respondents further allege that, if the changes were enacted, there
would be "very limited circumstances where a rider may experience a
minor additional delay in Station Agent service as compared to
current service which does not constitute a closure contemplated by
PAL Section 1205[5]."
During the hearing held on January 12 and 15, 2021, the Court took
the testimony of: Ms. Yvette Bassknight, a supervising station
agent working for NYCTA; Petitioner Robert Kelly; and Mr. David
Santoro, Chief Stations Officer for NYCTA. The hearing was
pecifically intended to address the threshold issue of whether the
elimination of the 185 Lunch Relief jobs would constitute a
reduction in service or access.
Based upon the testimony adduced at the hearing and evidence
presented therein, the Court finds that the elimination of the
duties of those transit workers, who provided lunch relief for
station agents, will result in significant token booth closures
within the City of New York. Such closures clearly constitute a
reduction of services and a reduction of access to the system by
the general public. The Court further finds that these closures
trigger the requirement for public hearings pursuant to PAL Section
1204(5) and 1205(5).
The Respondents assert that their decision to eliminate lunch
relief is merely a "reallocation of staffing" which does not
violate the PAL. However, that assertion is not correct, Judge W.
Franc Perry holds.
The evidence shows that each Lunch Relief Station Agent covers 6-8
booths per day. According to the Petitioners the elimination of the
185 Lunch Relief jobs means that for between 1,110 and 1,480 half
hour periods each week booths in every subway station will be
locked and closed. This locked and/or closing of the booths is not
only a staffing change but is also a reduction of services, which,
as the statute mandates, must be taken to the communities affected
by the closures for analysis and comment, Judge Perry holds.
The Respondents also argue that the lunch relief issue was
previously addressed and resolved in the grievance proceeding
brought by Local 100, which alleged a violation of the and
collective bargaining agreement between Local 100 and the NYCTA and
the MTA. However, in that proceeding the arbitrator, while
restoring the right of 65 Station Agents in "Gainsharing Booths" to
take lunch in the booth in return for pay, found that the
elimination of lunch relief did not violate the collective
bargaining agreement. That award did not address the statutory
violations alleged.
The Respondents have alluded that the lunch period booth closings
are a "mere closing" or that such closing would constitute a "minor
inconvenience" to passengers. There is no such thing as a "mere"
closing or that a closing is a "minor inconvenience", because any
disruption caused by the NYCTA or MTA has the potential to severely
impact the thousands of customers/riders, who rely on the subway
system as their only mode of transportation, Judge Perry points
out.
Reading the statute as written, together with the facts therein, it
must be concluded that the respondent's elimination of lunch relief
are "partial closings" of passenger stations and a reduction of the
means of access to passenger stations within the City of New York
under the Public Authorities Law, Judge Perry concludes.
It is, therefore, ordered that the Respondents are enjoined from
failing to replace Station Agents during their lunch periods.
Pursuant to PAL 1205(5), the Transit Authority must provide formal
written notice to the Community Boards in the affected
neighborhoods and hearings must be held no less than 30 days after
the notice is provided to permit public comment.
A full-text copy of the Court's Decision and Order dated Jan. 28,
2021, is available at https://tinyurl.com/udwtzg1a from
Leagle.com.
NEW YORK: Second Circuit Affirms Judgments in Munoz Class Suit
--------------------------------------------------------------
In the lawsuit captioned as Victoria Munoz, Plaintiff-Appellee,
Elsa Gulino, Mayling Ralph, Peter Wilds, Nia Greene, on behalf of
themselves and all others similarly situated, Plaintiffs v. Board
of Education of the City School District of the City of New York,
Defendant-Appellant, New York State Education Department,
Defendant, Case No. 19-1162 (2d Cir.), the U.S. Court of Appeals
for the Second Circuit affirmed the judgments of the district
court.
The appeal is the third appeal in a nearly 25-year-old class action
brought by African-American and Latino public school teachers
against the Board of Education of the City School District of the
City of New York ("BOE"). The Plaintiffs challenged, inter alia,
BOE's use of a certification test called the Liberal Arts and
Sciences Test ("LAST") as discriminatory under Title VII of the
Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C.
Section 2000e, et seq.
In a prior stage of the litigation, the Plaintiffs prevailed on
their claim that the LAST had an impermissible racial disparate
impact. BOE now appeals from the first 347 individual class-member
judgments entered by the U.S. District Court for the Southern
District of New York (Wood, J.), primarily asserting errors in the
district court's method of calculating damages.
BOE's main contention on appeal is that the district court erred in
its method of calculating class members' damages. Specifically, BOE
challenges the district court's method, developed in conjunction
with a duly appointed Special Master, of adjusting each award of
damages to reasonably reflect (1) the possibility that a class
member would not have been appointed to a BOE teaching position
even if that class member had passed the LAST ("probability of
appointment"); and (2) the possibility that a class member would
not have remained a BOE teacher through retirement or judgment
("probability of attrition").
The Appellate Court says it reviews a district court's fashioning
of a Title VII backpay remedy for abuse of discretion. A district
court abuses its discretion when "(1) its decision rests on an
error of law (such as application of the wrong legal principle) or
a clearly erroneous factual finding, or (2) its decision cannot be
located within the range of permissible decisions."
The thrust of BOE's argument is that the district court abused its
discretion by accounting for the probabilities of appointment and
attrition on an individualized basis, rather than through a
classwide pro-rata damages reduction. BOE relies on a line of
cases, primarily from the Appellate Court's sister circuits,
holding that classwide backpay calculations are most appropriate
where determining individualized damages is impossible or
impractical. Accordingly, the district court's decision to
individually determine whether a class member would have been
hired, as well as that class member's counterfactual end date, was
an application of the default rule that where possible, there
should be a determination on an individual basis as to which class
members are entitled to recovery and the amount of such recovery.
Contrary to BOE's suggestion, application of this default rule here
was not an abuse of discretion, the Appellate Court states.
Certainly, there were some reasons to believe that individualized
determinations of the probabilities of appointment and attrition
would be difficult in this case, such as the length of the class
period and the size of the class. But other factors support the
district court's conclusion that individualized determination of
these probabilities was neither impossible nor impractical.
The Panel also finds that BOE's prior position in this very
litigation confirms this point. While BOE now maintains that
individualized appointment and end date determinations require a
hopeless journey into a quagmire of hypothetical judgments,
Pettway, 494 F.2d at 260, it has not always made this claim. To the
contrary, in opposition to remedy-phase class certification, BOE
argued that a calculation of damages on a classwide basis would be
impractical because the determination of back pay is highly
individualized, and requires engaging in a host of necessarily
individualized determinations. Although BOE's prior position does
not formally preclude its arguments here, its about-face confirms
that, at the very least, reasonable minds may disagree about the
practicality of assessing appointment and attrition probabilities
on an individualized basis in this case. Under abuse of discretion
review, this is fatal to BOE's argument, the Appellate Court
holds.
BOE nonetheless contends that, even if the district court's
decision to make individualized appointment and attrition
determinations was reasonable in theory, it was an abuse of
discretion in practice because the district court's method of
making such determinations resulted in an impermissible windfall to
the plaintiffs at the expense of the employer. BOE has not offered
any basis for finding that the district court's application of this
well-established principle generated an impermissible windfall
here. Accordingly, these arguments do not demonstrate that the
district court's method of making individualized damages
determinations was an abuse of discretion.
Finally, the Appellate Court says it is unpersuaded by BOE's
contention that the district court's method of damages calculation
broadly violated Title VII principles. Although BOE argues that the
district court neglected its duty to give significant weight to
circumstances showing that BOE was entitled to presume that its
conduct was lawful, the only binding case from which BOE draws this
supposed duty is inapposite. In short, the Appellate Court finds no
basis to conclude that the district court's chosen method of making
individualized damages determinations was an abuse of discretion.
The Panel has also considered BOE's remaining arguments and finds
in them no basis for reversal. For these reasons, the judgments of
the district court are affirmed.
A full-text copy of the Court's Summary Order dated Jan. 28, 2021,
is available at https://tinyurl.com/322whhtl from Leagle.com.
JOSHUA S. SOHN -- jsohn@stroock.com -- Dina Kolker --
dkolker@stroock.com -- Francis C. Healy -- fhealy@stroock.com
--Robert A. Mantel -- rmantel@stroock.com -- Stroock & Stroock &
Lavan LLP, in New York City; Rachel V. Stevens, DLA Piper LLP, in
New York City, on the brief), for Plaintiff-Appellee.
AARON M. BLOOM -- abloom@law.nyc.gov -- Assistant Corporation
Counsel (Richard Dearing -- rdearing@law.nyc.gov -- Claude S.
Platton -- cplatton@law.nyc.gov -- and Kevin Osowski on the brief),
for James E. Johnson, Corporation Counsel of the City of New York,
in New York City, For Defendant-Appellant.
NEWREZ LLC: Bryant Suit Removed to D. Massachusetts
---------------------------------------------------
The case captioned as Timothy J. Bryant, on behalf of himself and
all others so similarly situated v. NewRez, LLC (formerly known as
NewPenn Financial, LLC) doing business as Shelpoint Mortgage
Servicing, Federal Home Loan Mortgage Corporation, Defendants, Case
No. 2081ca02512, was removed from Middlesex Superior Court, to the
U.S. District Court for District of Massachusetts on Jan. 25, 2021.
The District Court Clerk assigned Case No. 1:21-cv-40011-RGS to the
proceeding.
The nature of suit is stated as Foreclosure Real Property.
NewRez LLC -- https://newrez.com/ -- is a national mortgage lender
headquartered in Fort Washington, Pennsylvania. [BN]
The Plaintiff is represented by:
Todd S. Dion, Esq.
LAW OFFICE OF TODD S. DION
15 Cottage Avenue, Suite 202
Quincy, MA 02169
Phone: (401) 965-4131
Fax: (401) 535-1231
Email: toddsdion@msn.com
The Defendants are represented by:
Sean B. Cullen, Esq.
GUAETTA & BENSON, LLC
P.O. Box 519
Chelmsford, MA 01824
Phone: (978) 250-0999
Email: sean_cullen@guaettalaw.com
NINTENDO OF AMERICA: Class Status Filing Deadline Extended
----------------------------------------------------------
In the class action lawsuit captioned as A.C., a minor by and
through his guardian, MARIA CARBAJAL, v. NINTENDO OF AMERICA, INC.,
Case No. 2:20-cv-01694-TSZ (W.D. Wash.), the Hon. Judge Thomas S.
Zilly entered an order:
1. granting the Plaintiff's Motion to Extend Deadline for
the Plaintiff to File Motion for Class Certification; and
2. directing the parties to propose a class certification
briefing schedule by stipulation within 15 days following
the decision by the Court on Nintendo's responsive
motion.
Nintendo is a Japanese multinational consumer electronics and video
game company headquartered in Kyoto.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3jkBsjo at no extra charge.[CC]
The Plaintiff is represented by:
Kim D. Stephens, Esq.
Jason T. Dennett, Esq.
Kaleigh N.B. Powell, Esq.
TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, WA 98101
Telephone: (206) 682-5600
Facsimile: (206) 682-2992
E-mail: kstephens@tousley.com
jdennett@tousley.com
kpowell@tousley.com
- and -
Benjamin F. Johns, Esq.
Samantha E. Holbrook, Esq.
Andrew W. Ferich, Esq.
Alex M. Kashurba, Esq.
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
361 W. Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
E-mail: bfj@chimicles.com
awf@chimicles.com
amk@chimicles.com
NORTH DALLAS: Response to Class Certification Bid Due February 12
-----------------------------------------------------------------
In the class action lawsuit captioned as Pierce v. North Dallas
Honey Company, Case No. 3:19-cv-00410 (N.D. Tex.), the Hon. Judge
Brantley Starr entered an order granting the parties' Third Joint
Motion to Amend Scheduling Order.
The Defendants' response to the Motion for Class Certification is
due February 12, 2021.
The nature of suit states Torts -- Personal Property -- Other
Fraud.
North Dallas Honey Company is located in McKinney, Texas, and is
part of the food wholesalers industry.[CC]
NORTH LITTLE ROCK, AR: Summary Judgment in Convent Partly Affirmed
------------------------------------------------------------------
In the lawsuit captioned CONVENT CORPORATION, Appellant v. CITY OF
NORTH LITTLE ROCK, ARKANSAS, A MUNICIPAL CORPORATION; JOE SMITH,
MAYOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; CITY COUNCIL
MEMBERS DEBI ROSS, BETH WHITE, LINDA ROBINSON, MAURICE REMANDED IN
PART; DISMISSED AS TAYLOR, STEVE BAXTER, BRUCE MOOT IN PART.
FOUTCH, MURRY WITCHER, AND CHARLIE HIGHT, EACH INDIVIDUALLY AND IN
HIS OR HER OFFICIAL CAPACITY; TOM WADLEY, DIRECTOR, CODE
ENFORCEMENT DIVISION, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY;
AND FELICIA MCHENRY, CODE ENFORCEMENT OFFICER, INDIVIDUALLY AND IN
HER OFFICIAL CAPACITY, Appellees, Case No. CV-20-216 (Ark.), the
Supreme Court of Arkansas affirms in part, reverses and remands in
part, and dismiss as moot in part an order granting summary
judgment.
Appellant Convent appeals from the Pulaski County Circuit Court's
order granting summary judgment in favor of Appellees City of North
Little Rock, Arkansas, a Municipal Corporation; Joe Smith, Mayor,
individually and in his official capacity; City Council Members
Debi Ross, Beth White, Linda Robinson, Maurice Taylor, Steve
Baxter, Bruce Foutch, Murry Witcher, and Charlie Hight, each
individually and in his or her official capacity; Tom Wadley,
Director, Code Enforcement Division, individually and in his
official capacity; and Felicia McHenry, Code Enforcement Officer,
individually and in her official capacity (collectively, "City");
and dismissing Convent's suit, which challenged the City's decision
to condemn certain property and sought declaratory and injunctive
relief.
For reversal, Convent argues that (1) the City Council's
condemnation decision was not supported by substantial evidence and
was arbitrary and capricious; (2) the circuit court erred by
dismissing Convent's constitutional claims, claims pursuant to 42
U.S.C. Section 1983 and the Arkansas Civil Rights Act, and
common-law claim of trespass for failure to exhaust its
administrative remedies; (3) the City's condemnation procedure
violates due process; (4) the City's condemnation ordinances
contain terms that are unconstitutionally vague and that provide
public officials with too much discretion; (5) the City's
resolution condemning its property is an unlawful bill of
attainder; and (6) the circuit court erred by denying Convent's
renewed motion to strike the City's amended answer and affirmative
defenses.
The case involves condemnation proceedings instituted by the City
on property owned by Convent at 6615 Highway 70, in North Little
Rock. The structure at issue had been operated as a nightclub for
many years but had been vacant since August 2011. On November 14,
2012, the building was "red-tagged" by Defendant Felicia McHenry, a
code-enforcement officer, serving as notice to the owners and
occupants that the structure was deemed a public nuisance in
violation of articles 1 and 8 of the City's Nuisance Abatement and
Property Maintenance Code. In addition to posting notice on the
premises, McHenry also mailed to Convent the notice of public
nuisance, which stated that the building was "an unsafe and vacant
structure that is not fit for human habitation."
The letter notified Convent that the property would be considered
for condemnation due to its current condition and that a public
hearing would be conducted by the City Council on February 25,
2013. It further indicated that Convent was given seven days'
notice to remove, abate, or eliminate the nuisance or to contact
the code enforcement department to discuss a plan of abatement.
At the hearing, the counsel for Convent stated that the property's
current condition resulted from vandalism and that the owners were
not aware of the damage until the condemnation notice.
The resolution condemning the property stated that "the condition
of the property constitutes a serious fire and health hazard" and
that "unless immediate actions are taken to remedy this situation
by removing, razing, or abating the nuisance, there is a great
likelihood that the surrounding property may be destroyed by fire."
If further indicated that the structure was "a breeding place for
rats, rodents and other dangerous germ carriers of diseases."
On March 27, 2013, Convent filed a complaint in the Pulaski County
Circuit Court, appealing the City's decision to condemn its
property under Rule 9(f) of the Arkansas District Court Rules.
Convent also brought claims pursuant to 42 U.S.C. Sections 1983,
1985(3), 1986, and 1988 and the Arkansas Civil Rights Act, for
violations of the Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution and article 2, sections 15 and 22 of the
Arkansas Constitution, as well as a common-law claim of trespass.
Following the City's removal of the action to federal district
court, the case was returned to the circuit court on February 20,
2014. On May 17, 2014, Convent filed a motion for judgment on the
pleadings or, in the alternative, a motion for summary judgment,
arguing that the City had failed to timely file an answer following
the return from federal court and that it was entitled to summary
judgment on its claims. The City responded to the motion, asserting
that it had filed an answer and accompanying motion to dismiss in
federal court. The City also argued that Convent's motion was
premature because it had not exhausted its administrative
remedies.
On June 18, 2014, the City filed an amended answer denying the
allegations in Convent's complaint and asserting numerous
affirmative defenses. Convent filed a motion to strike the amended
answer and affirmative defenses as untimely. On September 1, 2014,
Convent filed its motion for class certification seeking to certify
as a class all individuals, who own property within the City and
whose property had been condemned by the City Council since March
27, 2008.
The circuit court entered an order on July 9, 2015, denying
Convent's motion for class certification because Convent did not
present any evidence in support of the motion. The court also
dismissed without prejudice Convent's constitutional and
civil-rights claims and common-law claim of trespass on the basis
that it had not yet exhausted its administrative remedies by way of
its Rule 9 appeal. Finally, the circuit court denied Convent's
motion for judgment on the pleadings or, in the alternative, motion
for summary judgment, because genuine issues of material fact
remained. Convent filed an interlocutory appeal from this order.
The Supreme Court reversed and remanded the appeal of the denial of
class certification, holding that the circuit court abused its
discretion by not reviewing the evidence in the record to determine
whether the class-certification motion should be granted or denied.
Convent Corp. v. City of N. Little Rock, 2016 Ark. 212, 492 S.W.3d
498. The Supreme Court says it did not address Convent's appeal of
the remaining rulings because they were not reviewable on an
interlocutory basis.
Upon remand, Convent filed a motion on September 30, 2016, for
judgment on the record, for declaratory judgment, and to reinstate
claims. Convent asserted that the City's condemnation decision
should be overturned because it was based on unconstitutional
procedures, it was not based on substantial evidence in the record
of the administrative proceedings, and it was arbitrary and
capricious. Convent moved to nonsuit its request for declaratory
judgment, and an order dismissing this claim without prejudice was
filed on May 11, 2017. That same day, the circuit court entered an
order finding that substantial evidence supported the City
Council's determination that Convent's property was a nuisance and
that the decision was not arbitrary and capricious.
The court, therefore, concluded that the underlying appeal had been
resolved. However, the circuit court stated that "it found no
reason to reconsider its previous dismissal of Plaintiff's
associated constitutional and class claims, and therefore,
Plaintiff's motion to reinstate claims is denied." The court
reserved for a later time its decision on the City's stated
intention to request civil penalties in the amount of $50 per day
as authorized by statute and the resolution condemning the
property. Finally, the court denied Convent's request for a stay
pending appeal unless it could present a suitable bond that the
City was willing to accept.
Convent filed a second notice of appeal from the May 11, 2017
order. However, the Supreme Court dismissed the appeal because it
was not from a final order. Convent Corp. v. City of N. Little
Rock, 2018 Ark. 45. The Supreme Court noted that the issue of civil
penalties remained to be decided and that the voluntary dismissal
of Convent's declaratory-judgment claim left it free to be refiled,
thereby creating the possibility of piecemeal appeals.
Following the Supreme Court's dismissal, Convent filed an amended
and reinstated petition for declaratory judgment on July 30, 2018.
Convent again sought a declaration that the City's ordinance
related to condemnation proceedings was unconstitutional, and it
requested an injunction preventing the City from destroying any
property that had been condemned pursuant to that ordinance,
condemning any additional property or otherwise enforcing article
1, section 7 of the City's code, or taking any action to file or
collect liens for the demolition of properties. Convent alleged
that the City's ordinance and procedures failed to provide due
process and that they also constituted an unconstitutional bill of
attainder.
On June 26, 2019, the City filed a motion for summary judgment
asserting that it was entitled to judgment as a matter of law on
Convent's petition. Convent filed a response to the City's motion
and a countermotion for summary judgment on July 17, 2019.
Following a hearing on the cross-motions, the circuit court entered
an order on December 11, 2019, granting the City's motion for
summary judgment and denying Convent's countermotion. The court,
therefore, dismissed with prejudice Convent's amended and
reinstated petition for declaratory judgment. Convent filed a
timely notice of appeal from the order and specified that it was
also appealing the circuit court's June 2019 order denying its
renewed motion to strike, the May 2017 order, and the July 2015
order.
As a threshold matter, the City contends that the Supreme Court
should not address the issues raised in Convent's appeal due to its
lack of standing to challenge the condemnation action. The City
asserts that because Convent failed to pay taxes for the years
2010-2013 and did not redeem the property until 2015, Convent did
not hold title to the property at the time of the condemnation
proceedings.
The Supreme Court disagrees that Convent lacked standing to bring
its action. Not only was Convent named and recognized as the
property owner by the City in its condemnation proceeding and
resolution, Convent also retained the right to redeem the property
during the relevant time period by paying the delinquent taxes,
which it ultimately did in February 2015. As Convent argues, the
right to redeem is a legally cognizable interest.
Further, the Supreme Court has held that a party has standing to
appeal if an order has impaired his or her economic interests. See
Forrest Constr., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001).
Although the City cites Talley v. City of North Little Rock, 2009
Ark. 601, 381 S.W.3d 753, the facts in that case are
distinguishable, as the property had been sold to another party at
the time of the condemnation decision, and the appellant no longer
had a right to redeem the property. Accordingly, the Supreme Court
proceeds in deciding the merits of Convent's appeal.
Convent first argues that the circuit court erred by upholding the
City's condemnation decision because it was not supported by
substantial evidence and was arbitrary and capricious. Because the
Panel determines that this issue is moot, the Supreme Court
does not address it.
In Convent's Rule 9 appeal of the condemnation decision, it
requested only that the City Council's resolution ordering its
property condemned as a nuisance be overturned. However, both
parties state in their respective briefs that the structure at
issue has already been razed by the City. Furthermore, the record
does not indicate that Convent requested a stay of the circuit
court's final order or that it attempted to post a bond to prevent
destruction of the property. Thus, any decision by this court on
Convent's appeal from the administrative decision would have no
practical legal effect, says Associate Justice Courtney Rae Hudson,
writing for the Panel.
In its next point on appeal, Convent argues that the circuit court
erred by dismissing its constitutional claims, civil-rights claims
under 42 U.S.C. Section 1983 and the Arkansas Civil Rights Act, and
common-law claim of trespass on the basis that Convent had failed
to exhaust its administrative remedies. The City asserts that this
issue is moot because after the circuit court rejected Convent's
appeal of the condemnation decision, the court then considered and
ruled on Convent's amended and reinstated petition for declaratory
judgment, which raised only a facial challenge to the City's
condemnation ordinance and procedures. The City contends that
Convent nonsuited its previous petition and chose not to bring its
other constitutional or civil-rights claims in its amended
petition; thus, there is no longer a justiciable controversy
regarding Convent's failure-to-exhaust argument.
The Supreme Court disagrees that this issue is moot. Not only did
the circuit court dismiss all of Convent's claims except the Rule 9
appeal in its July 2015 order, it also declined to reinstate these
claims in its 2017 order deciding the administrative appeal,
despite the fact that Convent filed a motion requesting it to do
so. Accordingly, a justiciable controversy remains regarding these
claims, and Convent's failure-to-exhaust argument is not moot.
As the Supreme Court noted in Convent's first appeal, the City does
not describe which administrative remedies Convent could have
pursued other than appealing from the City Council's condemnation
decision. While the Supreme Court has held that an action
challenging a municipality's decision should be dismissed for
failure to exhaust when there was no appeal from that decision
pursuant to Rule 9, the City has cited no case in which dismissal
is required when those claims are brought in conjunction with a
timely and properly perfected Rule 9 appeal.
The case cited in the circuit court's order dismissing the
associated claims, Old Republic Surety Co. v. McGhee, 360 Ark. 562,
203 S.W.3d 94 (2005), is distinguishable because in that case, a
separate appeal from an administrative decision was still pending
when the appellee brought her similar claim directly in circuit
court. The Supreme Court, therefore, held that the appellee had
failed to prove it would be futile to exhaust her administrative
remedies. Accordingly, Convent is correct that the circuit court
erred by dismissing Convent's constitutional, civil-rights, and
trespass claims solely on the basis of its failure to exhaust its
administrative remedies.
As the City argued, however, Convent raised its vagueness argument
for the first time in its motion for summary judgment. It did not
include this claim in its original complaint or in its amended and
reinstated petition for declaratory judgment, even within the
context of its due-process argument. The Supreme Court has held
that it would be erroneous for a circuit court, on a motion for
summary judgment, to consider any issues raised for the first time
in a party's briefs or exhibits. Thus, the circuit court did not
err in granting summary judgment on this claim.
Convent also argues that the City's ordinance results in bills of
attainder and that the specific resolution regarding its property
is an unconstitutional bill of attainder. This claim was raised in
Convent's amended petition, although it was rejected by the circuit
court in its order granting summary judgment to the City.
As the City responds, however, the condemnation ordinance does not
legislatively punish a named individual or an easily ascertainable
group. Moreover, the City Council's resolution condemning Convent's
property was not a legislative act but an administrative one.
Hence, the circuit court did not err by granting summary judgment
to the City on this claim.
In its final point on appeal, Convent contends that the circuit
court erred by denying Convent's renewed motion to strike the
City's amended answer and affirmative defenses. The Supreme Court
reviews the denial of a motion to strike under an
abuse-of-discretion standard.
Even assuming that Convent is correct that the City was still
required to file an answer within 30 days of notice of remand from
federal court, it was within the circuit court's discretion to
grant the motion to strike, Judge Hudson holds. Given that the City
filed an answer in federal court and then filed an amended answer,
albeit outside the thirty day time period, to the specific claims
raised in state court, Convent has not demonstrated an abuse of
discretion by the circuit court in declining to grant the renewed
motion to strike. The Supreme Court, therefore, affirms on this
point as well.
Barbara W. Webb, Justice, concurring.
Rhonda K. Wood, Justice, dissenting. Judge Wood says she dissents
from the majority's decision to remand this case for further
proceedings on Convent's as-applied constitutional claims for three
reasons: (1) Convent failed to appeal the circuit court's denial of
its motion to reinstate the claims following its administrative
appeal; (2) Convent nonsuited the remainder of its action after all
its claims were dismissed and failed to include the as-applied
claims in the refiling of its revived petition; and (3) even if the
as-applied claims had survived, this court can and should rule on
the merits of the summary-judgment order that dismissed all
claims.
A full-text copy of the Court's Opinion dated Jan. 28, 2021, is
available at https://tinyurl.com/a1fs2p15 from Leagle.com.
Mickey Steven, in Bryant, Arkansas, for Appellant.
Marie-Bernard Miller, Deputy City Attorney, in North Little Rock,
Arkansas, for Appellees.
NORTHEAST RADIOLOGY: Court Narrows Claims in Cohen FAC
------------------------------------------------------
In the class action lawsuit captioned as BRYAN COHEN, individually
and on behalf of all other persons similarly situated, v. NORTHEAST
RADIOLOGY, P.C. and ALLIANCE HEALTHCARE SERVICES, INC., Case No.
7:20-cv-01202-VB (S.D.N.Y.), the Hon. Judge Vincent L. Briccetti
entered an order:
1. granting in part and denying in part the motion to dismiss
the first amended complaint for lack of subject matter
jurisdiction, and for failure to state a claim.
2. denying the motion to appoint interim lead class counsel;
3. denying the Plaintiff's motion for an order pursuant to
Rule 23(d); and
4. directing the Defendants to file an answer By February 11,
2021.
The Court disagrees on the Defendants' argument that the Court
lacks subject matter jurisdiction under CAFA because plaintiff has
not plausibly alleged the requisite amount-in-controversy or that
the proposed class is equal to or greater than 100 individuals. The
Court also disagrees on the Defendants' argument that the plaintiff
does not have standing to bring the action. The Court agrees as to
the negligence per se and breach of contract claims, but disagrees
as to the claims for negligence, implied breach of contract, and
violation of Section 349. The Court also agrees with the Defendants
that the plaintiff has not pleaded a negligence per se claim, as
well as to the Defendants' argument that Northeast's Notice of
Privacy Practices does not form a contract.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/2Lp4ou8 at no extra charge.[CC]
NORTHERN NATURAL: De Leon FLSA Conditional Status Bid Tossed
------------------------------------------------------------
In the class action lawsuit captioned as JESSIE DE LEON,
individually and on behalf of all others similarly situated, v.
NORTHERN NATURAL GAS COMPANY, Case No. 7:20-cv-00179-DC-RCG (W.D.
Tex.), the Hon. Judge Ronald C. Griffin entered an order denying
without prejudice the plaintiff's motion for Fair Labor Standards
Act (FLSA) conditional certification and notice.
The Court said, "District courts in the Fifth Circuit have long
employed the Lusardi two-step approach when considering motions for
conditional certification under the FLSA. See Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987). Both Plaintiff's Motion and
Defendant's Response are premised on the application of the Lusardi
two-step approach to conditional certification. However, on January
12, 2021 in Swales v. KLLM Transport Services, the Fifth Circuit
enunciated its rejection of Lusardi. F.3d, No. 19-60847, 2021 WL
98229 (5th Cir. Jan. 12, 2021). The conditional certification
standard articulated by the Fifth Circuit in Swales now requires
the district court to:
"[I]dentify, at the outset of the case, what facts and legal
considerations will be material to determining whether a
group of "employees" is "similarly situated." And then it
should authorize preliminary discovery accordingly. The
amount of discovery necessary to make that determination will
vary case by case, but the initial determination must be
made, and as early as possible. In other words, the district
court, not the standards from Lusardi, should dictate the
amount of discovery needed to determine if and when to send
notice to potential opt-in plaintiffs."
Consequently, the Court finds it necessary to deny without
prejudice the Plaintiff's Motion for Conditional Certification, so
as to allow refiling when appropriate. Further, the Court will set
a status conference in conformity with Swales under forthcoming,
separate order.
Northern Natural Gas is a natural gas pipeline that brings gas from
the Permian Basin in Texas to the Chicago area, Wisconsin,
Minnesota and the Upper Peninsula of Michigan.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/36GGpOo at no extra charge.[CC]
NTN BUZZTIME: Brooklyn Merger Deal Lacks Info, Gallo Suit Says
--------------------------------------------------------------
FRANK GALLO v. NTN BUZZTIME, INC., ALLEN WOLFF, MICHAEL GOTTLIEB,
RICHARD SIMTOB, and SUSAN MILLER, Case No. 3:21-cv-00157-WQH-AGS
(S.D. Cal., Jan. 28, 2021) is an action brought by the Plaintiff
against the Defendants for their violations of Sections 14(a) and
20(a) of the Securities Exchange Act of 1934, and seeks to enjoin
the vote on a proposed transaction, pursuant to which NTN will
merge with Brooklyn ImmunoTherapeutics LLC through NTN's wholly
owned subsidiary BIT Merger Sub, Inc., and a proposed asset sale
with eGames.com Holdings LLC (Proposed Asset Sale).
On August 13, 2020, NTN and Brooklyn issued a joint press release
announcing that they had entered into an Agreement and Plan of
Merger and Reorganization dated August 12, 2020 (the Merger
Agreement) to merge NTN with Brooklyn. Under the terms of the
Merger Agreement, Brooklyn's members will exchange their equity
interests in Brooklyn for shares of NTN common stock representing
between approximately 94.08% and 96.74% of the outstanding common
stock of NTN, and NTN's current stockholders, will own between just
5.92% and 3.26% of the outstanding common stock of NTN.
According to the complaint, on September 18, 2020, NTN entered into
an asset purchase agreement (the Asset Purchase Agreement) with
eGames.com, pursuant to which NTN agreed to sell all of its right,
title and interest in and to the assets relating to the Company's
business of licensing its interactive entertainment network and
services and the tablets and related equipment used therein to
eGames.com. At the closing of the Proposed Asset Sale, in addition
to assuming the liabilities of NTN specified in the Asset Purchase
Agreement, including NTN's trade accounts payable and other accrued
liabilities arising in the ordinary course of the business, and
liabilities relating to NTN'scontracts included in the purchased
assets, eGames.com will pay NTN $2.0 million in cash. A $1.0
million bridge loan that eGames.com made to NTN in connection with
entering into the Asset Purchase Agreement will be applied toward
the $2.0 million purchase price. Following completion of the
Proposed Asset Sale, the Company's Chief Executive Officer
defendant Allen Wolff will be appointed as CEO of eGames.com.
On October 2, 2020, NTN filed a Form S-4 Registration Statement
with the Securities and Exchange Commission (SEC). The Registration
Statement, which recommends that NTN stockholders vote in favor of
the Proposed Transaction, allegedly omits or misrepresents material
information concerning the Company's and Brooklyn's financial
projections and the data and inputs underlying the financial
valuation analyses that support the fairness opinion provided by
the Company's financial advisor, Newbridge Securities Corporation.
In short, unless remedied, NTN's public stockholders will be
irreparably harmed because the Registration Statement's material
misrepresentations and omissions prevent them from making a
sufficiently informed voting decision on the Proposed Transaction.
The Plaintiff seeks to enjoin the stockholder vote on the Proposed
Transaction unless and until such Exchange Act violations are
cured, the suit says.
The Plaintiff is, and has been at all times, a continuous
stockholder of NTN.
The Defendant NTN delivers interactive entertainment and innovative
technology that helps its customers acquire, engage and retain
patrons. The Individual Defendants are officer and directors of the
Company.
Brooklyn is a privately held clinical-stage biopharmaceutical
company focused on exploring the role that cytokine-based therapy
can have on the immune system in treating patients with cancer.
Merger Sub is a wholly owned subsidiary of NTN.
eGames.com, a Nevada limited liability company, is a game
publishing business.[BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
9100 Wilshire Blvd., No. 725 E.
Beverly Hills, CA 90210
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
E-mail: jelkins@weisslawllp.com
ONEOK INC: Lindsey's FLSA Conditional Certification Bid Junked
--------------------------------------------------------------
In the class action lawsuit captioned as BRIAN LINDSEY,
individually and on behalf of all others similarly situated, v.
ONEOK, INC., Case No. 7:19-cv-00284-DC-RCG (W.D. Tex. ), the Hon.
Judge Ronald C. Griffin entered an order denying without prejudice
the plaintiffs' motion for Fair Labor Standards Act(FLSA)
conditional certification and notice.
The Court said, "District courts in the Fifth Circuit have long
employed the Lusardi two-step approach when considering motions for
conditional certification under the FLSA. Both the Plaintiffs'
Motions and Defendants' Responses are premised on the application
of the Lusardi two-step approach to conditional certification.
However, on January 12, 2021 in Swales v. KLLM Transport Services,
the Fifth Circuit enunciated its rejection of Lusardi. The
conditional certification standard articulated by the Fifth Circuit
in Swales now requires the district court to:
"[I]dentify, at the outset of the case, what facts and legal
considerations will be material to determining whether a
group of "employees" is "similarly situated." And then it
should authorize preliminary discovery accordingly. The
amount of discovery necessary to make that determination will
vary case by case, but the initial determination must be
made, and as early as possible. In other words, the district
court, not the standards from Lusardi, should dictate the
amount of discovery needed to determine if and when to send
notice to potential opt-in plaintiffs."
Consequently, the Court finds it necessary to deny without
prejudice Plaintiffs' Motions for Conditional Certification and
Notice, so as to allow refiling when appropriate. Further, the
Court will set a status conference in conformity with Swales under
forthcoming, separate order.
Oneok is a diversified Fortune 500 corporation based in Tulsa,
Oklahoma. Oneok was founded in 1906 as Oklahoma Natural Gas
Company, but It changed its corporate name to Oneok in December
1980. It also owns major natural gas liquids systems due to the
2005 acquisition of Koch Industries natural gas businesses.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3rnukph at no extra charge.[CC]
OVINTIV USA: Buffington Seeks Feb. 15 Extension to Answer Stay Bid
------------------------------------------------------------------
In the class action lawsuit captioned as MORGAN BUFFINGTON,
individually and on behalf of all others similarly situated, v.
OVINTIV USA INC. and NEWFIELD EXPLORATION COMPANY, Case No.
1:20-cv-02477-RM-STV (D. Colo.), the Plaintiff asks the Court to
enter an order extending the deadline for him to file a reply to
Ovintiv's Response to his Motion for Conditional Certification.
The Plaintiff says that his deadline to file their reply to the
Defendant's Motion to Stay, and in the alternative, Response in
Opposition to Conditional Certification is February 1st. Due to the
schedules of Counsel, he requests an additional two weeks to
respond, making their new reply deadline February 15, 2021. The
additional time will allow him to address the arguments and
authority contained in Ovintiv's response to conditional
certification and request to stay the case. Ovintiv is unopposed to
this extension.
A copy of the Plaintiff's motion dated Jan. 27, 2020 is available
from PacerMonitor.com at https://bit.ly/3jgSQ8Q at no extra
charge.[CC]
The Plaintiff is represented by:
William R. Liles, Esq.
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
William R. Liles, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
wliles@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsmile: (713) 877-8065
E-mail: rburch@brucknerburch.com
OVINTIV USA: Buffington Seeks Feb. 15 Extension to File Reply Brief
-------------------------------------------------------------------
In the class action lawsuit captioned as MORGAN BUFFINGTON,
individually and on behalf of all others similarly situated, v.
OVINTIV USA INC. and NEWFIELD EXPLORATION COMPANY, Case No.
1:20-cv-02477-RM-STV (D. Colo.), the Plaintiff asks the Court to
enter an order extending the deadline for him to file a reply to
Ovintiv's Motion to Stay, and in the alternative, Response to
Plaintiffs' Motion for Conditional Certification, from February 1,
2021 to the new deadline of February 15, 2021.
The Plaintiff says that his deadline to file his reply to the
Defendant's response is February 1. This extension is not sought
for an improper purpose, and good cause exists for granting this
request. This brief extension will not prejudice any party but is
solely to accommodate his counsel's previously scheduled vacation
the week of January 25, 2021. The requested extension will also
allow him to fully address the novel arguments presented by
Ovintiv's reliance on the Fifth Circuit's recent decision in Swales
v. KLLM Transport, No. 19-60847, 2021 WL 98229 (5th Cir. Jan. 12,
2021).
Ovintiv is a hydrocarbon exploration and production company
organized in Delaware and headquartered in Denver, United States.
A copy of the Court's the Plaintiff's motion dated Jan. 28, 2020 is
available from PacerMonitor.com at https://bit.ly/3ryxzKV at no
extra charge.[CC]
The Plaintiff is represented by:
William R. Liles, Esq.
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
JOSEPHSON DUNLAP LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
wliles@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, PLLC
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
PANERA LLC: Hilliard BIPA Suit Removed to N.D. Illinois
-------------------------------------------------------
The case styled MICHAEL HILLIARD, individually and on behalf of all
others similarly situated v. PANERA, LLC, Case No. 2020-CH-07056,
was removed from the Illinois Circuit Court of Cook County to the
United States District Court for the Northern District of Illinois
on January 14, 2021.
The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:21-cv-00233 to the proceeding.
Plaintiff Hilliard's class action complaint asserts that he used
timekeeping technology to clock in and out from work in a manner
that violated the Illinois Biometric Information Privacy Act.
Panera LLC operates as a chain of bakery-cafes. [BN]
The Defendant is represented by:
Melissa A. Siebert, Esq.
Erin Bolan Hines, Esq.
SHOOK, HARDY & BACON L.L.P.
111 South Wacker Drive, Suite 4700
Chicago, IL 60606
Telephone: (312) 704-7700
Facsimile: (312) 558-1195
E-mail: masiebert@shb.com
ehines@shb.com
PARSLEY ENERGY: Streety's Conditional Certification Bid Tossed
--------------------------------------------------------------
In the class action lawsuit captioned as JIM STREETY, individually
and on behalf of all others similarly situated, v. PARSLEY ENERGY
OPERATIONS, LLC, Case No. 7:20-cv-00049-DC-RCG (W.D. Tex.), the
Hon. Judge Ronald C. Griffin entered an order denying without
prejudice the plaintiff's motion for Fair Labor Standards Act
(FLSA) conditional certification and notice.
The Court said, "Both the Plaintiff's Motion and Defendant's
Response are premised on the application of the Lusardi two-step
approach to conditional certification. However, on January 12, 2021
in Swales v. KLLM Transport Services, the Fifth Circuit enunciated
its rejection of Lusardi. F.3d, No. 19-60847, 2021 WL 98229 (5th
Cir. Jan. 12, 2021). The conditional certification standard
articulated by the Fifth Circuit in Swales now requires the
district court to:
"[I]dentify, at the outset of the case, what facts and legal
considerations will be material to determining whether a
group of "employees" is "similarly situated." And then it
should authorize preliminary discovery accordingly. The
amount of discovery necessary to make that determination will
vary case by case, but the initial determination must be
made, and as early as possible. In other words, the district
court, not the standards from Lusardi, should dictate the
amount of discovery needed to determine if and when to send
notice to potential opt-in plaintiffs."
Consequently, the Court finds it necessary to deny without
prejudice Plaintiff's Motion for Conditional Certification, so as
to allow refiling when appropriate. Further, the Court will set a
status conference in conformity with Swales under forthcoming,
separate order.
Parsley Energy Operations, LLC provides oil and gas services. The
Company manages, develops, and operates oil and gas field
properties.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3rm3SfH at no extra charge.[CC]
PATTERN ENERGY: Bid for Relief From PSLRA Discovery Stay Denied
---------------------------------------------------------------
In the lawsuit styled IN RE PATTERN ENERGY GROUP INC. SECURITIES
LITIGATION, Case No. 20-275-MN-JLH (D. Del.), Magistrate Judge
Jennifer L. Hall of the U.S. District Court for the District of
Delaware denied the Plaintiffs' Motion for Limited Relief from the
PSLRA Discovery Stay.
The Plaintiffs request that the Court lift the automatic stay
imposed by the Private Securities Litigation Reform Act ("PSLRA")
so that they can obtain certain discovery supporting the claims set
forth in their complaint.
The Plaintiffs are investment funds that owned stock in Pattern
Energy at the time of its acquisition by the Canada Pension Plan
Investment Board ("CPPIB") in Spring 2020. The Plaintiffs' federal
claims are based on their contention that the proxy materials sent
to Pattern Energy shareholders in connection with the acquisition
contained material misrepresentations and omissions.
Count I of Plaintiffs' Consolidated Amended Class Action Complaint
alleges violations of Section 14(a) of the Securities Exchange Act
of 1934, 15 U.S.C. Section 78n(a). Count II alleges violations of
Section 20(a) of the Securities Exchange Act of 1934, 15 U.S.C.
Section 78t(a). Counts III and IV are state-law breach of fiduciary
duty and aiding and abetting claims.
The Plaintiffs filed their original complaint in this action on
February 25, 2020, two weeks before the shareholder vote on the
acquisition. Prior to filing, the Plaintiffs did not attempt to
exercise their rights to inspect Pattern Energy's books and records
under 8 Del. C. Section 220. The original complaint asserted only
federal claims, but the Plaintiffs filed a Consolidated Amended
Class Action Complaint on May 22, 2020, that added the state law
claims and additional factual allegations. On July 21, 2020, all
Defendants moved to dismiss the Complaint. On January 28, 2021,
Judge Hall issued a Report and Recommendation in which she
recommended that the Court dismiss all of the Plaintiffs' claims
with leave to amend.
Meanwhile, in May 2020, two other groups of Pattern Energy
stockholders filed suits in the Delaware Court of Chancery
asserting state law breach of fiduciary duty claims related to
CPPIB's acquisition of Pattern Energy. Unlike the Plaintiffs in the
instant case, the Chancery Court plaintiffs sought and obtained
documents from Pattern Energy pursuant to their rights under 8 Del.
C. Section 220 prior to filing suit. The Chancery Court
consolidated those cases under the caption In re Pattern Energy
Group Inc. Stockholders Litigation, C.A. No. 2020-0357-MTZ (Del.
Ch.).
The Plaintiffs filed the instant motion on July 13, 2020 (a week
before the Defendants filed their motions to dismiss the federal
Complaint). The Plaintiffs' motion asks the Court to lift the PSLRA
stay so that they can obtain discovery from Pattern Energy limited
to "documents already gathered, reviewed and produced by Pattern
Energy" to the Chancery Court plaintiffs.
Because the Plaintiffs' Complaint is subject to pending motions to
dismiss, the PSLRA requires that discovery be stayed unless the
Court finds that particularized discovery is necessary to either
preserve evidence or to prevent "undue prejudice" to the
Plaintiffs, Judge Hall notes.
The Plaintiffs claim that they will be unduly prejudiced without
the requested discovery because they have reason to believe that
the requested documents are highly relevant to, and indeed confirm
their core allegations in the Complaint. The Plaintiffs contend
that, without those documents, they will be at a severe
informational disadvantage vis-a-vis the parallel Delaware Chancery
Action and that "the Court should also have access to all relevant
information prior to ruling on Defendants' motions to dismiss,
which will avoid the risk of inconsistent rulings in this Action
and the Delaware Chancery Action."
Judge Hall finds that the Plaintiffs have failed to establish undue
prejudice. She opines that the reason why the Plaintiffs do not
have the information that the Chancery Court plaintiffs have is
because the Plaintiffs chose to file their securities action in
federal court before seeking that information. By choosing to
proceed in that manner, they subjected themselves to the PSLRA
discovery stay, as well as the Delaware Chancery Court's rule that
plaintiffs in federal securities actions are generally barred from
making books and records requests under 8 Del. C. Section 220, she
elaborates, citing Beiser v. PMC-Sierra, Inc., No. 3893-VCL, 2009
WL 483321, at *3-4 (Del. Ch. Feb. 26, 2009).
For purposes of the argument, Judge Hall accepts that the PSLRA
stay is preventing the Plaintiffs from obtaining relevant
documents, which "prejudices" them in the sense that the additional
information might enable them to beef up their factual allegations
and survive a motion to dismiss. But such prejudice is not "undue"
because it is a result of the Plaintiffs' choice to file their suit
before having enough facts, Judge Hall opines.
As for the Plaintiffs' concern about being at "a severe
informational disadvantage" vis-a-vis the litigants in the Chancery
Court action, the Plaintiffs acknowledge that there are myriad
cases falling on both sides of the prejudice issue such that for
every case the Plaintiffs cite, Pattern Energy can and will cite a
case falling on the other cite of the question. Having reviewed the
cited authorities, Judge Hall finds persuasive Judge Yohn's
reasoning in Dipple v. Odell, 870 F.Supp.2d 386, 390 (E.D. Pa.
2012).
That the stay applies in some cases but not others is not evidence
of undue prejudice, but rather is evidence of Congress' judgment
that PSLRA actions should be treated differently than other
actions," Judge Hall states. Like Judge Yohn, Judge Hall points out
that she will not question Congress's judgment.
The Plaintiffs maintain that their action is not frivolous and,
thus, permitting discovery would not be inconsistent with
Congress's purpose in enacting the PSLRA. Even if the Plaintiffs
were right about their action not being frivolous, it is beside the
point, Judge Hall notes. The PSLRA reflects Congress's
determination that the best way to remedy perceived abuses in
federal securities cases is to subject all cases to a discovery
stay until the court determines that the complaint can survive a
motion to dismiss (unless one of the limited exceptions applies).
The idea that the Plaintiffs might use discovery to bolster the
allegations in their complaint -- whether in advance of a motion to
dismiss or to amend in the event that a motion to dismiss is
granted -- plainly conflicts with the directive set forth in the
PSLRA, Judge Hall opines.
Because the Plaintiffs have failed to show that failure to lift the
PSLRA stay will cause them undue prejudice, their motion is
denied.
A full-text copy of the Court's Memorandum Order dated Jan. 28,
2021, is available at https://tinyurl.com/cxde6ik3 from
Leagle.com.
PATTERN ENERGY: Magistrate Recommends Dismissal of Securities Suit
------------------------------------------------------------------
Magistrate Judge Jennifer L. Hall of the U.S. District Court for
the District of Delaware recommends that the Defendants' motions to
dismiss be granted in the lawsuit titled IN RE PATTERN ENERGY GROUP
INC. SECURITIES LITIGATION, Case No. 20-275-MN-JLH (D. Del.).
In the action challenging the purchase of Pattern Energy by the
Canada Pension Plan Investment Board ("CPPIB"), the Defendants move
to dismiss the Amended and Consolidated Class Action Complaint.
Judge Hall recommends that the Defendants' motions to dismiss be
granted because (1) the Plaintiffs fail to state claims for
violations of Sections 14(a) and 20(a) of the Securities Exchange
Act of 1934, and (2) no federal claims remain in the case to
support the exercise of supplemental jurisdiction over the
Plaintiffs' state-law claims.
The dispute arises from an agreement between Defendant Pattern
Energy and the CPPIB to merge Pattern Energy with a subsidiary of
CPPIB. That agreement was announced on November 4, 2019. The
Plaintiffs are investment funds that owned Pattern Energy stock at
the time of the merger. The Plaintiffs were all advised by their
investment advisor, Water Island Capital, LLC.
At all relevant times, Pattern Energy was a Delaware Corporation
with "principal executive offices" in San Francisco, California.
Its business was operating wind and solar facilities in the United
States, Canada, and Japan. It traded on the NASDAQ under the ticker
PEGI and on the Toronto Stock Exchange under the ticker PEG from
its initial public offering in 2013 until the merger.
Pattern Energy acquired the facilities that it operated by
purchasing them from Defendant Pattern Energy Group 2 LP ("Pattern
Development") and other sources. Pattern Development was a Delaware
limited partnership with "principal executive offices" in San
Francisco. Its principal business was developing and selling
renewable energy and transmission facilities, and it sold most of
them to Pattern Energy.
Defendant Riverstone Holdings LLC is an energy and power-focused
private investment firm. Defendant Riverstone Pattern Energy II
Holdings, L.P. ("Riverstone PE") is a Delaware limited partnership
that owned an equity stake in non-party Pattern Energy Group
Holdings 2 LP, which was the holding company for Pattern
Development.
According to the Complaint, Riverstone Holdings and its affiliates
(collectively, "Riverstone"), including Riverstone PE, held a
controlling 70% equity interest in Pattern Development before the
merger. At the time of the merger, Pattern Development had a
consent right that limited Pattern Energy's ability to transfer its
interest in Pattern Development to any third party without the
consent of Pattern Development.
The individuals named as defendants in the Complaint include the
members of Pattern Energy's Board at the time of the merger ("Board
Defendants") and seven members of Pattern Energy's management team
("Management Defendants"). The Board Defendants are Alan R. Batkin,
Edmund John Philip Browne, Richard A. Goodman, Douglas G. Hall,
Patricia M. Newson, Mona K. Sutphen, and Michael Garland. The
Management Defendants are Michael Garland, Hunter Armistead, Daniel
Elkort, Michael Lyon, Deborah McAdam, Esben Pedersen, and
Christopher Shugart. Defendant Garland was the CEO of both Pattern
Energy and Pattern Development, as well as a member of the boards
of directors at both companies.
On February 4, 2020, Pattern Energy's Board filed with the
Securities and Exchange Commission a Schedule 14A Definitive Proxy
Statement, detailing the merger negotiations that had occurred and
recommending that shareholders vote to approve the merger at a
special shareholder meeting scheduled for March 10, 2020.
The Proxy Statement disclosed that members of Pattern Energy's
management were involved in the company's negotiations regarding a
potential merger. For example, at an October 29, 2018 meeting of
the Special Committee, CEO Garland -- who was not a member of the
Special Committee -- summarized the approaches he had received from
representatives of a large alternative asset manager (referred to
in the Proxy Statement as 'Party A') which owns a substantial
interest in a company in the alternative energy industry (referred
to in the Proxy Statement as 'Company A') and separately by a large
private equity investment firm that also owns a company in the
alternative energy business (referred to in the Proxy Statement as
'Party B') with respect to a potential transaction involving
Pattern Energy.
The Proxy Statement explained that, pursuant to the merger
transaction, Pattern Energy would be merged with a newly formed
affiliate of CPPIB. In exchange, shares of Pattern Energy Company
Common Stock would be converted to the right to receive $26.75 in
cash. The Proxy Statement further disclosed that, pursuant to a
concurrent transaction -- dubbed the "Contribution Agreement" --
the Management Defendants and Riverstone (through Riverstone PE)
would be contributing their respective stakes in Pattern
Development to an affiliate of CPPIB in exchange for equity
interests in the affiliate.
The combined result of the Pattern Energy merger and the
acquisition of Pattern Development pursuant to the Contribution
Agreement was that Pattern Energy and Pattern Development would be
under the common ownership of CPPIB.
The Proxy Statement quickly garnered negative attention, including
from the Plaintiffs' financial advisor, Water Island Capital, which
issued two critical open letters, dated February 18 and 24, 2020.
The letters attacked the sufficiency of the disclosures in the
Proxy Statement, particularly the lack of disclosure around the
terms of the Contribution Agreement. Institutional Shareholder
Services, a proxy advisory service, also issued a report on
February 28, 2020, recommending that Pattern Energy shareholders
vote against the proposed merger.
Pattern Energy responded to the negative publicity in several ways,
including releasing press releases and filing of Form 8-K. In
addition to the two press releases, Pattern Energy filed with the
SEC Schedule 14A Definitive Additional Materials ("Supplemental
Proxy Statement") on March 4, 2020, which disclosed additional
details related to the merger and the Contribution Agreement.
The effective value of Pattern Development (as of the signing of
the Merger Agreement) was $1.06 billion, based on CPPIB's
contribution of its interest of Pattern Energy acquired under the
Merger Agreement to the joint venture that will own Pattern Energy
and Pattern Development following the closing of the Merger.
Despite the public criticisms about the lack of shareholder
visibility into the concurrent Pattern Development deal, Pattern
Energy's shareholders voted to approve the merger at the special
meeting on March 10, 2020.
The Plaintiffs filed this action on February 25, 2020, two weeks
before the shareholder vote. The Plaintiffs filed the now-operative
pleading, the Consolidated Amended Class Action Complaint, on May
22, 2020.
Count I of the Complaint alleges violations of Section 14(a) of the
Securities Exchange Act of 1934 against Pattern Energy, the Board
Defendants, the Management Defendants, and Pattern Development.
Count II alleges violations of Section 20(a) of the Securities
Exchange Act of 1934 against the Board Defendants, the Management
Defendants, and Pattern Development. Count III is a state-law
breach of fiduciary duty claim against the Board Defendants and the
Management Defendants. Count IV alleges that Riverstone Holdings
and Riverstone PE are liable for aiding and abetting the breaches
of fiduciary duties.
Pending before the Court are two motions to dismiss. On July 21,
2020, Riverstone Holdings, Riverstone PE, and Pattern Development
filed a motion to dismiss for failure to state a claim. Also on
July 21, 2020, Pattern Energy, the Board Defendants, and the
Management Defendants filed a motion to dismiss for failure to
state a claim. Each motion purports to incorporate by reference the
arguments made in the other motion.
Underlying all of the Plaintiffs' claims is their contention that
Pattern Energy's Board allowed its management, Riverstone, and
Pattern Development to push the merger negotiations toward a merger
with CPPIB that would include Pattern Development--and away from a
more favorable transaction with Party A for Pattern Energy
alone--resulting in less consideration for Pattern Energy's
shareholders.
Judge Hall notes that to move forward on their federal securities
claims--which are the reason the case is before this Court instead
of the Delaware Court of Chancery -- the Plaintiffs need to
identify a statement in the Proxy that is either materially false
or misleading on its own, or is materially misleading in light of
other facts that were not disclosed (i.e., omitted.).
Notwithstanding the length of the Complaint -- 253 paragraphs
spanning 88 pages--the Plaintiffs fail to identify such a
statement. Their Section 14(a) claim must, therefore, be dismissed.
And their failure to plead an underlying violation of Section 14(a)
is fatal to their Section 20(a) claim, Judge Hall holds.
Because she recommends dismissing all of the Plaintiffs' federal
claims, Judge Hall also recommends that the Court decline to
exercise supplemental jurisdiction over the Plaintiffs' state-law
claims.
The Plaintiffs point to 26 statements in the Proxy Statement, the
Supplemental Proxy Statement, and the February 26 Press Release
that, the Plaintiffs contend, are "false and misleading." The
Plaintiffs group those statements into six categories: (1)
statements about the fairness of the merger; (2) statements about
the terms of alternate bids; (3) statements relating to Pattern
Development's consent right; (4) statements regarding Pattern
Energy management's role in the negotiations; (5) statements
regarding valuation metrics; and (6) statements about the
shareholder vote on the merger.
It is clear from the Plaintiffs' allegations that they believe that
wrongdoing occurred in connection with the merger, Judge Hall
observes. They may or may not be right. But a breach of fiduciary
duty unaccompanied by a false or misleading statement does not
violate the federal securities laws, Judge Hall holds, citing
Laborers' Local #231 Pension Fund v. Cowan, 300 F.Supp.3d 597, 604
(D. Del. 2018).
To state a Section 14(a) claim, the Plaintiffs were required to
identify a particular statement that was false or misleading. They
failed to do so, Judge Hall holds. She, therefore, recommends that
the Court dismiss the Plaintiffs' Section 14(a) claim (Count I).
The Plaintiffs assert that the Court has supplemental jurisdiction
over their state-law claims pursuant to 28 U.S.C. Section 1367.
However, under 28 U.S.C. Section 1367(c)(3), the Court may decline
to exercise supplemental jurisdiction over state-law claims if it
has dismissed all claims over which it has original jurisdiction,
Judge Hall opines.
Judge Hall finds that the Plaintiffs have not provided an
affirmative justification for this Court to exercise supplemental
jurisdiction over their state-law claims. Judge Hall agrees with
the Defendants that considerations of judicial economy,
convenience, and fairness to the parties actually support declining
jurisdiction because a consolidated action alleging
nearly-identical breach of fiduciary duty and aiding and abetting
claims is already pending in the Delaware Court of Chancery. See In
re Pattern Energy Grp. Inc. Stockholders Litig., No. 2020-357-MTZ
(Del. Ch.). Accordingly, Judge Hall recommends that the Court
dismiss the state-law claims (Counts III and IV).
For these reasons, Judge Hall recommends that (i) the Section 14(a)
claim alleged in Count I and the Section 20(a) claim alleged in
Count II be dismissed, and (ii) the Court decline to exercise
jurisdiction over the state-law claims alleged in Counts III and
IV. Accordingly, she recommends that the Defendants' Motions to
Dismiss be granted and the Plaintiffs be granted leave to amend
their complaint within 30 days.
The Report and Recommendation is filed pursuant to 28 U.S.C.
Section 636(b)(1)(B), (C), Federal Rule of Civil Procedure
72(b)(1), and District of Delaware Local Rule 72.1. Any objections
to the Report and Recommendation will be filed within 14 days and
limited to 10 pages. Any response will be filed within fourteen
days thereafter and limited to ten pages. The failure of a party to
object to legal conclusions may result in the loss of the right to
de novo review in the district court.
The parties are directed to the Court's "Standing Order for
Objections Filed Under Fed. R. Civ. P. 72," dated October 9, 2013,
a copy of which can be found on the Court's website.
A full-text copy of the Court's Report & Recommendation dated Jan.
28, 2021, is available at https://tinyurl.com/s787te6x from
Leagle.com.
PEAK PROPERTY: 90-Day Extension for Class Status Filing Sought
--------------------------------------------------------------
In the class action lawsuit captioned as LESLIE SMITH, individually
and on behalf of all others similarly situated, v. PEAK PROPERTY
AND CASUALTY INSURANCE CORPORATION, Case No. 1:20-cv-00907-CCE-JEP
(M.D.N.C.), Plaintiff Leslie Smith files her unopposed motion for
an extension of time for her to file her motion for class
certification.
The Plaintiff contends that her application of the 90-day deadline
for filing a motion for class certification be stayed until after
the parties submit a Rule 26(f) report and the Court enters a
scheduling order.
The Plaintiff filed an Amended Complaint on July 1, 2020 in Durham
County Superior Court. The Defendant filed a Notice of Removal to
this court on October 2, 2020. The Plaintiff Filed an Amended
Complaint on November 6, 2020. The Defendant filed a Motion to
Dismiss Plaintiffs' Amended Complaint on November 20, 2020. The
Plaintiffs filed their Opposition to Defendants' Motion to Dismiss
on January 5, 2021. The Defendant filed a Reply on January 26,
2021, and Defendant's Motion to Dismiss is still pending.
Peak Property is an insurance company that offers airplane, auto,
commercial auto, earthquake, flood, and homeowners insurance.
A copy of the Plaintiff's motion dated Jan. 27, 2020 is available
from PacerMonitor.com at https://bit.ly/3tt1Z2Q at no extra
charge.[CC]
Counsel for the Plaintiff and Putative Class, are:
Jeremy R. Williams, Esq.
Daniel K. Bryson, Esq.
WHITFIELD BRYSON LLP
900 W. Morgan Street
Raleigh, NC 27603
Telephone: (919) 600-5000
Facsimile: (919) 600-5035
E-mail: dan@whitfieldbryson.com
jeremy@whitfieldbryson.com
- and -
Kopelowitz Ostrow, Esq.
Jonathan Streisfeld, Esq.
1 W. Las Olas Blvd., Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
E-mail: streisfeld@kolawyers.com
ostrow@kolawyers.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, P.A.
19495 Biscayne Blvd No. 607
Aventura, FL 33180
Telephone: 305-975-3320
E-mail: scott@edelsberglaw.com
- and -
Andrew Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 N.E 1st Ave Ste. 1205
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
- and -
Rachel Dapeer, Esq.
DAPEER LAW, P.A.
300 S. Biscayne Blvd, No. 2704
Miami, FL 33131
Telephone: 305-610-5223
E-mail: rachel@dapeer.com
PEAK PROPERTY: Deadline to File Class Status Bid Extended
---------------------------------------------------------
In the class action lawsuit captioned as LESLIE SMITH, on behalf of
themselves and all others similarly situated, v. PEAK PROPERTY AND
CASUALTY INSURANCE CORPORATION, Case No. 1:20-cv-00907-CCE-JEP
(M.D.N.C.), the Court entered an order granting the Plaintiff's
motion to extend the deadline to file a Motion for Class
Certification.
The Court said, "The deadline for the Plaintiff's Class
Certification Motion shall be stayed until after the parties submit
a Rule 26(f) report and the Court enters a scheduling order,
subject to further order of the Court. The Plaintiff Smith
requests an extension of time to file her Motion for Class
Certification, with the deadline for such motion to be determined
at the initial pretrial scheduling conference. The Defendant's
counsel did not oppose such extension, and pursuant to Rule 6(b) of
the Federal Rules of Civil Procedure, the Court finds that good
cause exists for granting Plaintiff's requested extension."
Peak Property is an insurance company.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/3oSQqi0 at no extra charge.[CC]
PEL-STATE BULK: FLSA Conditional Status Bid Nixed w/o Prejudice
---------------------------------------------------------------
In the class action lawsuit captioned as CALVIN COLLINS and ZACHARY
HALL, individually and on behalf of all others similarly situated,
v. PEL-STATE BULK PLANT, LLC and WILLIAM H. BROYLES, II, Case No.
7:20-cv-00083-DC-RCG (W.D. Tex. ), the Hon. Judge Ronald C. Griffin
entered an order denying without prejudice the plaintiffs' motion
for Fair Labor Standards Act(FLSA) conditional certification and
notice.
The Court said, "District courts in the Fifth Circuit have long
employed the Lusardi two-step approach when considering motions for
conditional certification under the FLSA. See Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987). Both the Plaintiffs' Motions
and Defendants' Responses are premised on the application of the
Lusardi two-step approach to conditional certification. However, on
January 12, 2021 in Swales v. KLLM Transport Services, the Fifth
Circuit enunciated its rejection of Lusardi. F.3d, No. 19-60847,
2021 WL 98229 (5th Cir. Jan. 12, 2021). The conditional
certification standard articulated by the Fifth Circuit in Swales
now requires the district court to:
"[I]dentify, at the outset of the case, what facts and legal
considerations will be material to determining whether a
group of "employees" is "similarly situated." And then it
should authorize preliminary discovery accordingly. The
amount of discovery necessary to make that determination will
vary case by case, but the initial determination must be
made, and as early as possible. In other words, the district
court, not the standards from Lusardi, should dictate the
amount of discovery needed to determine if and when to send
notice to potential opt-in plaintiffs."
Consequently, the Court finds it necessary to deny without
prejudice Plaintiffs' Motions for Conditional Certification and
Notice, so as to allow refiling when appropriate. Further, the
Court will set a status conference in conformity with Swales under
forthcoming, separate order.
Pel-State Bulk Plant is located in Bossier City, Los Angeles, and
is part of the Petroleum and Petroleum Products Wholesalers
Industry.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3roc13r at no extra charge.[CC]
PENUMBRA INC: Klein Law Firm Reminds of March 16 Deadline
---------------------------------------------------------
The Klein Law Firm on Feb. 1 announced that class action complaints
have been filed on behalf of shareholders of the following
companies. There is no cost to participate in the suit. If you
suffered a loss, you have until the lead plaintiff deadline to
request that the court appoint you as lead plaintiff.
Boston Scientific Corporation (NYSE:BSX)
Class Period: April 24, 2019 - November 16, 2020
Lead Plaintiff Deadline: February 2, 2021
Throughout the class period, Boston Scientific Corporation
allegedly made materially false and/or misleading statements and/or
failed to disclose that: (i) the LOTUS Edge Aortic Valve System's
product delivery system was dysfunctional and threatened the
continued viability of the entire product line; (ii) as a result,
the Company had materially overstated the continued commercial
viability and profitability of the LOTUS Edge Aortic Valve System;
and (iii) as a result, the Company's public statements were
materially false and misleading at all relevant times.
Learn about your recoverable losses in BSX:
http://www.kleinstocklaw.com/pslra-1/boston-scientific-corporation-loss-submission-form-2?id=12577&from=1
Northern Dynasty Minerals Ltd. (NYSE:NAK)
Class Period: December 21, 2017 - November 25, 2020
Lead Plaintiff Deadline: February 2, 2021
According to the complaint, Northern Dynasty Minerals Ltd.
allegedly made materially false and/or misleading statements and/or
failed to disclose that: (1) the Company's Pebble Project was
contrary to Clean Water Act guidelines and to the public interest;
(2) the Company planned that the Pebble Project would be larger in
duration and scope than conveyed to the public; (3) as a result,
the Company's permit applications for the Pebble Project would be
denied by the U.S. Army Corps of Engineers; and (4) as a result,
Defendants' public statements were materially false and/or
misleading at all relevant times.
Learn about your recoverable losses in NAK:
http://www.kleinstocklaw.com/pslra-1/northern-dynasty-minerals-ltd-loss-submission-form?id=12577&from=1
Penumbra, Inc. (NYSE:PEN)
Class Period: August 3, 2020 - December 15, 2020
Lead Plaintiff Deadline: March 16, 2021
Penumbra, Inc. allegedly made materially false and/or misleading
statements and/or failed to disclose that: (1) that the Jet 7 Xtra
Flex had known design defects that made it unsafe for its normal
use; (2) that Penumbra did not adequately address the risk of the
Jet 7 Xtra Flex causing serious injury and deaths, which had in
fact already occurred; (3) that 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.
Learn about your recoverable losses in PEN:
http://www.kleinstocklaw.com/pslra-1/penumbra-inc-loss-submission-form?id=12577&from=1
Your ability to share in any recovery doesn't require that you
serve as a lead plaintiff. If you suffered a loss during the class
period and wish to obtain additional information, please contact J.
Klein, Esq. by telephone at 212-616-4899 or visit the webpages
provided.
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
J. Klein, Esq.
Empire State Building
350 Fifth Avenue
59th Floor
New York, NY 10118
jk@kleinstocklaw.com
Telephone: (212) 616-4899
Fax: (347) 558-9665
www.kleinstocklaw.com [GN]
PENUMBRA INC: Vincent Wong Reminds Investors of March 16 Deadline
-----------------------------------------------------------------
The Law Offices of Vincent Wong announce that class actions have
commenced on behalf of certain shareholders in the following
companies. If you suffered a loss you have until the lead plaintiff
deadline to request that the court appoint you as lead plaintiff.
There will be no obligation or cost to you.
Penumbra, Inc. (NYSE:PEN)
If you suffered a loss, contact us
at:http://www.wongesq.com/pslra-1/penumbra-inc-loss-submission-form?prid=12557&wire=1
Lead Plaintiff Deadline: March 16, 2021
Class Period: August 3, 2020 - December 15, 2020
Allegations against PEN include that: (1) that the Jet 7 Xtra Flex
had known design defects that made it unsafe for its normal use;
(2) that Penumbra did not adequately address the risk of the Jet 7
Xtra Flex causing serious injury and deaths, which had in fact
already occurred; (3) that 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.
To learn more contact Vincent Wong, Esq. either via email
vw@wongesq.com or by telephone at 212.425.1140.
Vincent Wong, Esq. is an experienced attorney who has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. Attorney advertising. Prior
results do not guarantee similar outcomes. [GN]
PEPPERIDGE FARM: Faces Brewer Suit Over Biometric Data Collection
-----------------------------------------------------------------
TYRONE BREWER, on behalf of himself and all others similarly
situated v. PEPPERIDGE FARM, INCORPORATED, Case No. 1:21-cv-00535
(N.D. Ill., Jan. 29, 2021) alleges that Pepperidge Farm violated
their employees' privacy rights by unlawfully collecting, storing,
and/or using their biometric data and information not in accordance
with Biometric Information Privacy Act.
The Plaintiff contends that at the start of his employment, his
handprint was scanned and saved by the biometric time clock system.
He asserts that his handprint was then used to identify him during
his workhours, when he needed to get through the building door.
While the use of fingerprint scans may be more secure for the
building than key fobs, identification cards, or combination codes,
the use of biometric identifiers in the workplace entails risks for
the employees. Fingerprints are permanent, unique biometric
identifiers that will be associated with the employee forever,
whereas other security measures that may be misplaced or stolen can
be deactivated. Keeping employees' biometric identifiers on file
exposes them to serious privacy risks like identity theft and
unauthorized tracking.
The Plaintiff saw his coworkers use the same scanner as he did and
estimates that he and the other class members were asked to scan
their hands three to six times per day over the course of their
employment. The Defendant was in actual possession of Plaintiff's
biometric information contained in the biometric time clock system,
the suit says.
The Plaintiff was employed at Pepperidge Farm for May of 2020,
contracted by a temporary agency located in the same building.
Defendant Pepperidge Farm is a Connecticut corporation, with its
headquarters in Connecticut, manufacturing plants in Illinois and
Pennsylvania.[BN]
The Plaintiff is represented by:
Michael W. Drew, Esq.
NEIGHBORHOOD LEGAL LLC
20 N. Clark Street No. 3300
Chicago, IL 60602
Telephone: (312) 967-7220
E-mail: mwd@neighborhood-legal.com
- and -
Celetha Chatman, Esq.
COMMUNITY LAWYERS LLC
20 N. Clark Street, Suite 3100
Chicago, IL 60602
Telephone: (312) 757-1880
E-mail: cchatman@communitylawyersgroup.com
PHILADELPHIA, PA: Restitutionary Class in Sourovelis Suit Certified
-------------------------------------------------------------------
In the case, CHRISTOS SOUROVELIS, et al., Plaintiffs v. CITY OF
PHILADELPHIA, et al., Defendants, Civil Action No. 14-4687 (E.D.
Pa.), Judge Eduardo C. Robreno of the U.S. District Court for the
Eastern District of Pennsylvania granted in part the Plaintiffs'
Consent Motion and Memorandum in Support of Final Approval of Class
Certification and Consent Decree on Plaintiffs' Fifth and Sixth
Claims for Relief, certified the Restitutionary Class, and approved
the Consent Decree as modified.
The case is about long standing policies and procedures of the City
of Philadelphia, the Office of the District Attorney, and the Court
of Common Pleas of Philadelphia County concerning the adjudication
and execution of civil forfeitures. The Court found those policies
and procedures, as alleged by the Plaintiffs and taken as true, to
be unconstitutional and to have caused harm to the Plaintiffs.
The Plaintiffs seek class certification, injunctive relief, and
monetary compensation. After substantial discovery and motion
practice and with the help of a court appointed facilitator, the
parties have reached agreement as to class certification, the
implementation of structural and administrative changes in the
manner in which civil forfeiture proceedings are conducted by the
District Attorney and the Court of Common Pleas, and an amount of
money sufficient to fairly compensate the victims of the
unconstitutional practices.
Presently before the Court is the Plaintiffs' Consent Motion and
Memorandum in Support of Final Approval of Class Certification and
Consent Decree on Plaintiffs' Fifth and Sixth Claims for Relief.
If approved, the settlement would resolve the two claims that
assert the right to monetary restitution ("Restitutionary Claims").
There is a second consent decree involving the Third, Fourth,
Sixth, and Seventh Claims for Relief that concerns structural
changes to the Defendants' policies and practices ("Courtroom
Claims") and which is the subject of a separate memorandum issued
on this day. Finally, there is a separate order containing
findings and granting an award of attorneys' fees.
The terms of the proposed class action settlement are set forth in
the "Proposed Consent Decree on Plaintiffs' Fifth and Sixth Claims
for Relief."
The so-called "Restitutionary Class" is comprised of: All persons
who held or hold legal title to, or otherwise had or have a legal
interest in property against which a Statutory or Common Law
civil-forfeiture petition (i) was pending in the Court of Common
Pleas of Philadelphia County as of Aug. 11, 2012; or (ii) was filed
in the Court of Common Pleas of Philadelphia County on or after
Aug. 11, 2012 until the date the Court grants preliminary
approval.
The Consent Decree offers two main benefits to the proposed
Restitutionary Class: (1) complete injunctive relief remedying the
Defendants' direct financial interest in the outcome of forfeiture
proceedings; and (2) a Restitutionary Fund of $3 million to be
administered by a third-party claims administrator. Including
certain time-barred claims that the parties agreed to incorporate
in the final tally, there were only 2,395 valid claimants out of
the nearly 35,000 potential class members who were sent notice of
the lawsuit. The final claimant count includes 61 claimants whose
cases are not fully adjudicated, so the parties, not knowing the
ultimate value of those claims, have set aside enough funds to
compensate them. The Court will retain jurisdiction over the
permanent injunctions in the Consent Decree for as long as they are
in place.
According to the proposed Consent Decree, the Restitutionary Fund
will consist of $3 million, which after paying the costs of
administration, will be distributed in the following order: First,
$90 would be paid to each member of the proposed Restitutionary
Class as recompense for the alleged constitutional violations.
Second, each named Plaintiff would receive an incentive award of
$2,500. Third, class members who were neither convicted nor
received a diversionary disposition in a criminal case associated
with the forfeiture of their property would receive 100% of the
value of their property ("Innocent Claimants"). Fourth, class
members who received a diversionary disposition in the criminal
case associated with the forfeiture of their property would receive
75% of the value of their property ("Diversionary Claimants").
Fifth, those claimants who were convicted in the criminal case
associated with the forfeiture of their property would receive 0%
of the value of their property ("Convicted Claimants"). Sixth,
$375,000 would be returned to the City of Philadelphia.
Any remaining money would constitute a cy pres fund awarded to the
Philadelphia Foundation to be distributed to nonprofit or
community-based public-service organizations or social agencies.
Due to the relatively low claim rate, 27% of the settlement fund,
or $807,315 of the $3 million fund, ultimately fell within this
category.
After the Court questioned the size of the large cy pres award, the
parties agreed that it should be adjusted so the actual class
members receive a greater share of the Restitutionary Fund.
In its supplemental letter brief, the class counsel suggested: (1)
the Innocent Claimants receive $800 (instead of $90) and 100% of
the value of their forfeited property; (2) the Diversionary
Claimants receive $600 (instead of $90) and 75% of the value of
their forfeited property; and (3) the Convicted Claimants receive
$200 (instead of $90) and 0% of the value of their forfeited
property. This distribution maximizes payment to the class and
leaves only .8%, or $24,000, for the cy pres award to the
Philadelphia Foundation.
In the Defendants' supplemental letter brief, the District
Attorney's Office suggested: (1) the Innocent Claimants receive
$300 (instead of $90) and 100% of the value of their forfeited
property; (2) the Diversionary Claimants receive $200 (instead of
$90) and 75% of the value of their forfeited property; and (3) the
Convicted Claimants receive the original $90 payment and 0% of the
value of their forfeited property. This distribution would leave
21%, or $629,000 for the cy pres award to the Philadelphia
Foundation.
The Consent Decree also provides for an award of attorneys' fees
and expenses of $2.63 million in addition to the $3 million
restitution award. The reasonableness of attorneys' fees will be
the subject of a separate order.
Judge Robreno finds that the settlement class satisfies the
requirements of Rule 23(a) and (b)(3), as well as the Third
Circuit's ascertainability requirement. Therefore, he will certify
the Restitutionary Class.
The Court previously approved the notice scheme and it appears that
the parties have successfully followed that procedure. Indeed, the
parties have taken various additional measures to encourage maximum
response. Therefore, Judge Robreno concludes that notice was
reasonable.
In approving a class action settlement, Judge Robreno must
determine whether the proposed settlement is fair, reasonable, and
adequate, as required by Rule 23(e)(2). He addresses the relevant
Girsh, Prudential, and Rule 23(e)(2) factors. He finds that (i)
the Girsh factors favor approving the Consent Decree, (ii) weighing
of the Prudential factors underscores the fairness of the Consent
Decree, (iii) an analysis of the Rule 23(e)(2) factors confirms
that the Consent Decree is fair and reasonable, and (iv) the award
structure and cy pres provision, contribute to the overall fairness
of the settlement.
Judge Robreno concludes that in that Rules 23(a) and (b)(3) have
been met, certification of the settlement class is proper.
Moreover, a review of the Girsh, Prudential, and Rule 26(e)(2)
factors indicate that the terms of the Consent Decree, as
described, appear fair, reasonable, and adequate, and the purpose
of the cy pres award, the designation of a recipient, and the
reduced amount of the award adds to the overall fairness of the
settlement. As a result, the Judge granted in part the Plaintiffs'
Consent Motion and Memorandum in Support of Final Approval of Class
Certification and Consent Decree on Plaintiffs' Fifth and Sixth
Claims for Relief, certified the Restitutionary Class, and approved
the Consent Decree as modified.
There is a separate order containing findings and granting an award
of attorneys' fees.
The parties may then file a joint modified consent decree for the
Restitutionary Claims which conforms with the decision.
An appropriate order follows.
A full-text copy of the Court's Jan. 27, 2021 Memorandum is
available at https://tinyurl.com/15yxr7pr from Leagle.com.
PHILADELPHIA: K9 Officers Claim Overtime Pay for Off-the-Clock Work
-------------------------------------------------------------------
Joseph O'Reilly, Richard Treston, Janie Dipasquale, Nick
Dipasquale, Michael Cahill, Horace Lopez, Justin O'Brien, Brian
Quirple, William Suarez, James Zimmerman, Dennis Baker, Rodney
Poliard, Kenneth Kustra, Joseph Mangold, Edward Moyer, John Snyder,
Sean Elkins, Paul Sulock and Curtis Hill, individually and on
behalf of others similarly situated, Plaintiffs, v. City of
Philadelphia, Defendant, Case No. 21-cv-00313 (N.D. Cal., January
21, 2021), seeks all available relief under the Fair Labor
Standards Act, the Pennsylvania Minimum Wage Act of 1968, the
Pennsylvania Wage Payment and Collection Law and Pennsylvania
common law.
Plaintiffs are current and/or former City of Philadelphia police
officers in the K9 unit, contending that the City of Philadelphia
has improperly failed to pay overtime compensation to K9 officers
for the at-home-care and training provided to their police dogs.
[BN]
Plaintiff is represented by:
Erica A. Shikunov, Esq.
DEREK SMITH LAW GROUP, PLLC
1835 Market Street, Suite 2950
Philadelphia, PA 19103
Tel: (215)391-4790
Email: erica@dereksmithlaw.com
PIONEER NATURAL: Kennedy's FLSA Conditional Status Bid Junked
-------------------------------------------------------------
In the class action lawsuit captioned as ROBERT KENNEDY,
individually and on behalf of all others similarly situated, v.
PIONEER NATURAL RESOURCES COMPANY, Case No. 7:20-cv-00086-DC-RCG
(W.D. Tex. ), the Hon. Judge Ronald C. Griffin entered an order
denying without prejudice the plaintiffs' motion for Fair Labor
Standards Act(FLSA) conditional certification and notice.
The Court said, "District courts in the Fifth Circuit have long
employed the Lusardi two-step approach when considering motions for
conditional certification under the FLSA. See Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987). Both the Plaintiffs' Motions
and Defendants' Responses are premised on the application of the
Lusardi two-step approach to conditional certification. However, on
January 12, 2021 in Swales v. KLLM Transport Services, the Fifth
Circuit enunciated its rejection of Lusardi. F.3d, No. 19-60847,
2021 WL 98229 (5th Cir. Jan. 12, 2021). The conditional
certification standard articulated by the Fifth Circuit in Swales
now requires the district court to:
"[I]dentify, at the outset of the case, what facts and legal
considerations will be material to determining whether a
group of "employees" is "similarly situated." And then it
should authorize preliminary discovery accordingly. The
amount of discovery necessary to make that determination will
vary case by case, but the initial determination must be
made, and as early as possible. In other words, the district
court, not the standards from Lusardi, should dictate the
amount of discovery needed to determine if and when to send
notice to potential opt-in plaintiffs."
Consequently, the Court finds it necessary to deny without
prejudice Plaintiffs' Motions for Conditional Certification and
Notice, so as to allow refiling when appropriate. Further, the
Court will set a status conference in conformity with Swales under
forthcoming, separate order.
Pioneer Natural is an American energy company engaged in
hydrocarbon exploration in the Cline Shale, which is part of the
Spraberry Trend of the Permian Basin, where the company is the
largest acreage holder.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3pPOJTJat no extra charge.[CC]
PLAINS ALL: Newman's FLSA Conditional Certification Bid Tossed
--------------------------------------------------------------
In the class action lawsuit captioned as KENNETH NEWMAN,
individually and on behalf of all others similarly situated, v.
PLAINS ALL AMERICAN PIPELINE, L.P., Case No. 7:19-cv-00244-DC-RCG
(W.D. Tex. ), the Hon. Judge Ronald C. Griffin entered an order
denying without prejudice the plaintiffs' motion for Fair Labor
Standards Act(FLSA) conditional certification and notice.
The Court said, "District courts in the Fifth Circuit have long
employed the Lusardi two-step approach when considering motions for
conditional certification under the FLSA. See Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987). Both the Plaintiffs' Motions
and Defendants' Responses are premised on the application of the
Lusardi two-step approach to conditional certification. However, on
January 12, 2021 in Swales v. KLLM Transport Services, the Fifth
Circuit enunciated its rejection of Lusardi. F.3d, No. 19-60847,
2021 WL 98229 (5th Cir. Jan. 12, 2021). The conditional
certification standard articulated by the Fifth Circuit in Swales
now requires the district court to:
"[I]dentify, at the outset of the case, what facts and legal
considerations will be material to determining whether a
group of "employees" is "similarly situated." And then it
should authorize preliminary discovery accordingly. The
amount of discovery necessary to make that determination will
vary case by case, but the initial determination must be
made, and as early as possible. In other words, the district
court, not the standards from Lusardi, should dictate the
amount of discovery needed to determine if and when to send
notice to potential opt-in plaintiffs."
Consequently, the Court finds it necessary to deny without
prejudice Plaintiffs' Motions for Conditional Certification and
Notice, so as to allow refiling when appropriate. Further, the
Court will set a status conference in conformity with Swales under
forthcoming, separate order.
Plains All is an American publicly traded Master limited
partnership in the oil pipeline transportation, marketing, and
storage business in the United States, liquefied petroleum gas
business in Canada, and natural gas storage business in Michigan
and Louisiana.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3cPCEKm at no extra charge.[CC]
POLR ELECTRIC: Underpays Electricians, Barnard Suit Alleges
-----------------------------------------------------------
ROBERT BARNARD, individually and on behalf of all others similarly
situated v. POLR ELECTRIC, INC. and DOES 1–50, inclusive, Case
No. CGC-21-588933 (Cal. Super., San Francisco Cty., Jan. 14, 2021)
arises from the Defendants' failure to provide meal and rest
periods, pay overtime wages, waiting time penalties, and for all
hours worked, reimburse business expenses, and furnish accurate
wage statements, in violations of the California Labor Code and the
California Business and Profession Code.
The Plaintiff began employment with Defendant in January 2020 as an
electrician.
POLR Electric, Inc. is an electrical company based in
California.[BN]
The Plaintiff is represented by:
Robert W. Ottinger, Esq.
Andrew Mailhot, Esq.
THE OTTINGER FIRM, P.C.
535 Mission Street
San Francisco, CA 94105
Telephone: (415) 262-0096
Facsimile: (212) 571-0505
E-mail: robert@ottingerlaw.com
POLYFLUOROALKYL MAKERS: Wallace Slams Injury From Exposure Hazard
-----------------------------------------------------------------
Randy Wallace v. 3M Company (f/k/a Minnesota Mining and
Manufacturing Company), AGC Chemicals Americas Inc., Amerex
Corporation, Archroma U.S., Inc., Arkema, Inc., Buckeye Fire
Equipment Company, Carrier Global Corporation, Chemdesign Products,
Inc., Chemguard, Inc., Chemicals, Inc., Chemours Company FC, LLC,
Chubb Fire, Ltd, Clariant Corp., Corteva, Inc., Deepwater
Chemicals, Inc., Du Pont De Nemours Inc. (f/k/a Dowdupont Inc.),
Dynax Corporation, E.I. Du Pont De Nemours And Company,
Kidde-Fenwal, Inc., Kidde PLC, Nation Ford Chemical Company,
National Foam, Inc., The Chemours Company, Tyco Fire Products LP,
as successor-in-interest to The Ansul Company, United Technologies
Corporation, UTC Fire & Security Americas Corporation, Inc. (f/k/a
GE Interlogix, Inc.), Case No. 2:21-cv-00179-RMG (D.S.C., Jan. 18,
2021) is a class action brought on behalf of the Plaintiff and
others similarly situated seeking damages for personal injury
resulting from exposure to aqueous film-forming foams (AFFF)
containing the toxic chemicals collectively known as per and
polyfluoroalkyl substances (PFAS).
AFFF is a specialized substance designed to extinguish
petroleum-based fires. It has been used for decades by military and
civilian firefighters to extinguish fires in training and in
response to Class B fires.
According to the complaint, the Defendants collectively designed,
marketed, developed, manufactured, distributed, released, trained
users, produced instructional materials, promoted, sold, and/or
otherwise released into the stream of commerce AFFF with knowledge
that it contained highly toxic and bio persistent PFASs, which
would expose end users of the product to the risks associated with
PFAS. These PFAS binds to proteins in the blood of humans exposed
to the material and remains and persists over long periods of time.
Due to their unique chemical structure, PFAS accumulates in the
blood and body of exposed individuals.
The Defendants' PFAS-containing AFFF products were used by the
Plaintiff in their intended manner, without significant change in
the products' condition. The Plaintiff was unaware of the dangerous
properties of the Defendants' AFFF products and relied on the
Defendants' instructions as to the proper handling of the products.
The Plaintiff's consumption, inhalation and/or dermal absorption of
PFAS from Defendant's AFFF products caused the Plaintiff to develop
the serious medical conditions and complications, the suit says.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of the Plaintiff's training and
firefighting activities.
The Wallace case has been consolidated in MDL No. 2873, In Re:
Aqueous Film-Forming Foams Products Liability Litigation. The case
is assigned to the Hon. Judge Richard Gergel. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and -
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
PROBUILD COMPANY: Initial Approval of Class Settlement Sought
-------------------------------------------------------------
In the class action lawsuit captioned as OTINA SENGVONG, on behalf
of himself, and all others similarly situated, v. PROBUILD COMPANY
LLC, a Delaware limited liability company dba DIXIELINE LUMBER &
HOME CENTERS, DIXIELINE TRUSS YARD, DIXIELINE CLASSIC COLLECTIONS,
DIXIELINE HOME CENTERS; BUILDERS FIRSTSOURCE-DALLAS, LLC, a
Delaware limited liability company; BUILDERS FIRSTSOURCE, INC., a
Delaware corporation; and DOES 1 through 50, inclusive, Case No.
3:19-cv-02231-MMA-JLB (S.D. Cal.), the Plaintiff asks the Court to
enter an order:
1. granting class certification of the Settlement Class
solely for settlement purposes pursuant to Federal Rules
of Civil Procedure section 23:
"all persons employed by the Defendants in California as
non-exempt employees at any time during the Settlement
Class Period from October 15, 2015 through October 3,
2020;"
2. preliminarily approving the Stipulation of Class
Settlement and Release Between Plaintiff and Defendants;
3. appointing David Spivak of The Spivak Law Firm and Walter
Haines of United Employees Law Group as Class Counsel;
4. appointing herself as Class Representative;
5. approving the use of the proposed notice procedures and
related forms;
6. directing that notice be mailed to the proposed Settlement
Class; and
7. scheduling a hearing date for motion for final approval of
class action settlement and awards of attorneys' fees and
costs.
ProBuild supplies building materials.
A copy of the Plaintiff's motion for preliminary approval of class
action settlement dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/36PIhol at no extra charge.[CC]
The Plaintiff is represented by:
David G. Spivak, Esq.
Maralle Messrelian, Esq.
THE SPIVAK LAW FIRM
16530 Ventura Blvd., Suite 203
Encino, CA 91436
Telephone: (818) 582-3086
Facsimile: (818) 582-2561
E-mail: david@spivaklaw.com
maralle@spivaklaw.com
- and -
Walter Haines, Esq.
UNITED EMPLOYEES LAW GROUP
5500 Bolsa Ave, Suite 201
Huntington Beach, CA 92649
Telephone: (562) 256-1047
Facsimile: (562) 256-1006
E-mail: whaines@uelglaw.com
PULASKI COUNTY SSD: 30K Class Settlement in Lamb Suit Wins Final OK
-------------------------------------------------------------------
The U.S. District Court for the Eastern District of Arkansas issued
a consolidated order and a judgment giving final order to the
$30,000 settlement in the lawsuit titled JOHN LAMB, individually
and on behalf of all others similarly situated Plaintiff v. PULASKI
COUNTY SPECIAL SCHOOL DISTRICT, Defendant, Case No.
4:18-cv-00327-LPR (E.D. Ark.).
By way of the Order, the Court (1) concludes that the proposed
Settlement Agreement is fair, reasonable, adequate, and otherwise
consistent with the requirements of Eighth Circuit precedent, the
Fair Labor Standards Act statute, and Rule 23 of the Federal Rules
of Civil Procedure; (2) overrules the two objections to the
proposed Settlement Agreement filed on the docket; (3) excludes
from the proposed Settlement Agreement and the Rule 23 class all
the persons, who requested to be excluded; (4) formally and finally
approves the proposed Settlement Agreement; and (5) dismisses the
case with prejudice.
On May 15, 2018, the named Plaintiff filed a Complaint, which
included FLSA, Amended Migrant Workers Act, and breach of contract
claims. The Complaint included both collective action and class
claims. The thrust of the Complaint was that the Pulaski County
Special School District was not paying bus drivers the rate
promised to them on the first page of their contracts. Instead, for
some chunk of driving hours, the District was paying a lower rate
that was set forth in a salary schedule in the District's personnel
policies. This alleged failure to pay the promised rate did more
than just breach a contract, according to the Complaint. It also
meant that bus drivers were not being properly compensated for
overtime hours because the base pay rate used to calculate
time-and-a-half pay was wrong.
On January 14, 2019, the named Plaintiff moved for conditional
certification of an FLSA collective of bus drivers. On the same
date, the named Plaintiff moved for certification of a Rule 23
class of bus drivers. On February 27, 2019, the Court conditionally
certified an FLSA collective, granted Rule 23 class certification,
and ordered Notice to both the collective and the class. All of the
Notice obligations were timely and properly performed by the
Parties.
On August 14, 2020, the Plaintiffs filed an Uncontested Motion for
Preliminary Approval of Class Settlement and Notice to the
Settlement Class. On September 8, 2020, the Court granted the
Motion and authorized the proposed Notice Plan. All Notice
obligations were timely and properly performed by the Parties, and
met the substantive requirements set out in Grunin v. International
House of Pancakes.
The Court received two Objections: one from Meandy Bishop and one
from Beverly Cook.
Twenty-one people requested exclusion from the proposed Settlement
and class: Delton Adams, Kimberly Branch Burns, Beverly Cook,
Purcela Daniels, Lava Davis, Kervis Dunhoo, Sr., Tequila Gilcrease,
Linda Heffner, James P. Howard, Karen Hudson, Michelle Jones,
Alicia Lockert, Leroy Martin, Jr., Vernon Mason, Theresa J. Mays,
Katina Piggee, Jason Profit Sr., Robert Turner, Willie Williams,
Richard L. Wright, and Steven A. Zimmerman.21 These exclusion
requests are in an appropriate form and appear authentic.
On December 4, 2020 the Court held a final fairness hearing.
Neither Ms. Bishop nor Ms. Cook (the persons who filed written
objections) showed up to the hearing. Nonetheless, the Court
considered their objections in full. Only one other person showed
up to the hearing, but he did not present an objection to the Court
-- despite the Court explicitly providing the opportunity for oral
objections at the hearing.
The Plaintiffs' counsel is not receiving attorneys' fees or costs
in this matter. The proposed Settlement Agreement does not include
attorneys' fees or costs. And Plaintiffs' counsel made clear they
are not taking any fees or costs from Mr. Lamb, the opt-in
Plaintiffs, the Defendants, or anyone else. This choice to not take
fees appears to be directly related to the assessment by the
Plaintiffs' counsel (made during discovery and after further legal
research) that the claims originally brought had a really low
likelihood of success.
Initially, the Court was concerned about the breadth of the Release
of Claims contemplated in the proposed Settlement Agreement. The
Court expressed that concern at the hearing. However, the Parties
have chosen to narrow the Release. Under the revision, only
non-excluded members of the FLSA collective -- a group that will be
entitled to monetary relief from the Settlement Agreement -- will
release (or waive) any of their rights to pursue a lawsuit against
the District.
Rule 23 class members, who are not part of the FLSA collective --
and thus only receive injunctive relief in the proposed Settlement
Agreement -- are not releasing (or waiving) any of their rights to
bring a lawsuit. Moreover, the release (or waiver) for non-excluded
FLSA collective members will only apply to the claims that were
actually asserted in the lawsuit. It will not apply to claims that
could have been, but were not, asserted in the case, let alone
claims that could not have been brought in the case.
There are 176 opt-in Plaintiffs in the FLSA collective, who have
not excluded themselves from the proposed Settlement Agreement.
Under the proposed Settlement Agreement, the Defendants are
providing a total of $30,000. The non-excluded FLSA opt-in
Plaintiffs will split this money equally, with each receiving
approximately $170 dollars. (The individual monetary award would
have been about $156 per person if all the FLSA collective members
agreed to stay in the Settlement.)
People who are members of the Rule 23 class but not the FLSA
collective are receiving injunctive relief only. The injunctive
relief is a clarification in the contract language that more
clearly explains the pay structure for bus drivers. The Court notes
that people who receive only injunctive relief are not releasing
any of their rights to bring any claims. The Court further notes
that the administrative costs and burdens associated with
attempting to distribute the settlement among Rule 23 class members
(as opposed to the FLSA opt-in collective) would be very high
proportionate to the small total settlement amount. Indeed, the
administrative costs and fees might actually burn through all or
nearly all of the settlement figure.
Ms. Bishop's Objection is that the she "cannot see how $156.25
covers the sum of 6 years of time not fully paid for." She believes
the "sum is not a fair representation of her time" and devoted work
during her employment. The Court notes that Ms. Bishop's Objection
fails to acknowledge or wrestle with the fact that the claims
brought in this case had an extraordinarily low probability of
success.
Ms. Cook's Objection argues that "the payment that the county wants
to pay for the hours over 6 is not even. 1 cent over the years that
the driver has worked." She says it is unfair. Like Ms. Bishop's
Objection, Ms. Cook's Objection fails to acknowledge or wrestle
with the fact that the claims brought in this case had an
extraordinarily low probability of success.
John Lamb, the named Plaintiff, is entitled to (under the proposed
Settlement Agreement) a service award of $500. The Court expressed
some concerns about the size of the award during the hearing.
District Judge Lee P. Rudofsky rules that the 21 people who have
requested exclusion from the Settlement Agreement and the Rule 23
class are entitled to exclusion. They are excluded as they have
requested.
The two written Objections are rejected and overruled. Consistent
with the discussion in the Factual Findings section, the Objections
have not identified any unfairness in the Settlement Agreement or
any other reason to stop this Settlement. The fatal flaw in the
Objections is that they do not discount the potential monetary
relief on their claims with any realistic notion of chance of
success. The chance of success is so low here that any monetary
relief is a boon to the Plaintiffs.
Judge Rudofsky holds that the proposed Settlement Agreement is
fair, reasonable, and adequate. All the Van Horn v. Trickey factors
counsel in favor of approving the settlement. The single most
important factor is a weighing of the merits of the Plaintiffs'
case against the terms of the settlement. Other factors include the
Defendant's financial condition, the complexity and expense of
further litigation, and the amount of opposition to the proposed
Settlement Agreement.
The Court notes that there is a distinction in the relief given to
the Rule 23 class (injunctive relief) and the relief given to the
FLSA collective (injunctive and monetary relief). The distinction
is justified, especially considering that members of the Rule 23
class who are not opt-in members of the FLSA collective action are
not releasing any claims at all. Also, it is not lost on the Court
that trying to give monetary relief to the Rule 23 class would
require a significant administrative process that would likely
swallow most of the settlement funds. On the contrary, because FLSA
members have already opted-in, it is far easier and less costly to
identify them and to identify where their relief should be sent.
Ultimately, the distinction between groups does not undermine the
reasonableness or fairness of the Agreement.
The Court is okay with the $500 service award to Mr. Lamb. It does
seem a little high, especially given that everyone agrees the
claims were and are most likely unmeritorious. However, the Court
accepts as persuasive the arguments of the Plaintiffs' counsel that
(1) much of the error can be attributed to counsel; and (2) it
takes a fair deal of courage to come forth to sue one's employer on
behalf of others. $500 is not so high as to be unreasonable. It
strikes a balance between incentivizing whistle-blowing and not
incentivizing false accusations. And, certainly in the context of
this case, it does not suggest any type of buying-off of the
Plaintiff.
For these reasons, the Court rejects and overrules the two written
Objections, excludes from the Settlement Agreement and class all 21
persons that requested such treatment, concludes that the
Settlement Agreement is fair, reasonable, and adequate, and
formally and finally approves the Settlement Agreement. The case is
dismissed with prejudice. The Court retains jurisdiction to enforce
the Settlement Agreement.
A full-text copy of the Court's Consolidated Order dated Jan. 28,
2021, is available at https://tinyurl.com/c2akhl9y from
Leagle.com.
QIWI PLC: Gross Law Firm Announces Class Action Filing
------------------------------------------------------
The securities litigation law firm of The Gross Law Firm issues the
following notice on behalf of shareholders in the following
publicly traded companies. Shareholders who purchased shares in the
following companies during the dates listed are encouraged to
contact the firm regarding possible Lead Plaintiff appointment.
Appointment as Lead Plaintiff is not required to partake in any
recovery.
Qiwi plc (NASDAQ:QIWI)
Investors Affected: March 28, 2019 - December 9, 2020
A class action has commenced on behalf of certain shareholders in
Qiwi plc. The filed complaint alleges that defendants made
materially 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.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/qiwi-plc-loss-submission-form/?id=12562&from=1
Triterras, Inc., f/k/a Netfin Acquisition Corp. (NASDAQ:TRIT)
Investors Affected: August 20, 2020 - December 16, 2020
A class action has commenced on behalf of certain shareholders in
Triterras, Inc, f/k/a Netfin Acquisition Corp. The filed complaint
alleges that defendants made materially false and/or misleading
statements and/or failed to disclose that: (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.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/triterras-inc-f-k-a-netfin-acquisition-corp-loss-submission-form/?id=12562&from=1
Decision Diagnostics Corp. (OTC PINK:DECN)
Investors Affected: March 3, 2020 - December 17, 2020
A class action has commenced on behalf of certain shareholders in
Decision Diagnostics Corp. The filed complaint alleges that
defendants made materially false and/or misleading statements
and/or failed to disclose that: (i) Decision Diagnostics had not
developed any viable COVID-19 test, much less a test that could
detect COVID-19 in less than one minute; (ii) the Company could not
meet the FDA's EUA testing requirements for its purported COVID-19
test; (iii) accordingly, Defendants had misrepresented the timeline
within which it could realistically bring its COVID-19 test to
market; (iv) all the foregoing subjected Defendants to an increased
risk of regulatory oversight and enforcement; and (v) as a result,
Defendants' public statements were materially false and misleading
at all relevant times.
Shareholders may find more information at
https://securitiesclasslaw.com/securities/decision-diagnostics-corp-loss-submission-form/?id=12562&from=1
The Gross Law Firm is committed to ensuring that companies adhere
to responsible business practices and engage in good corporate
citizenship. The firm seeks recovery on behalf of investors who
incurred losses when false and/or misleading statements or the
omission of material information by a Company lead to artificial
inflation of the Company's stock. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
The Gross Law Firm
15 West 38th Street, 12th floor
New York, NY, 10018
Email: dg@securitiesclasslaw.com
Phone: (212) 537-9430
Fax: (833) 862-7770 [GN]
QUALCOMM INC: Appeal in Broadcom Merger-Related Suit Pending
------------------------------------------------------------
QUALCOMM Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 3, 2021, for the
quarterly period ended December 27, 2020, that the appeal in the
order of dismissal in the securities class action suit entitled, In
re Qualcomm/Broadcom Merger Securities Litigation, is pending.
On June 8, 2018 and June 26, 2018, securities class action
complaints were filed by purported stockholders of the company in
the United States District Court for the Southern District of
California against the company and two of its then current
officers.
The complaints alleged, among other things, that the company
violated Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, as amended, and Rule 10b-5 thereunder, by failing to disclose
that the company had submitted a notice to the Committee on Foreign
Investment in the United States (CFIUS) in January 2018.
The complaints sought unspecified damages, interest, fees and
costs.
On January 22, 2019, the court appointed the lead plaintiff in the
action. On March 18, 2019, the plaintiffs filed a consolidated
complaint asserting the same basic theories of liability and
requesting the same basic relief.
On May 10, 2019, the company filed a motion to dismiss the
consolidated complaint, and on March 10, 2020, the court granted
the company's motion.
On May 11, 2020, the plaintiffs filed a second amended complaint,
and on October 8, 2020, the court granted the company's motion to
dismiss the case with prejudice.
On November 7, 2020, the plaintiffs filed a notice of appeal. No
hearing date has been set.
QUALCOMM said, "We believe the plaintiffs' claims are without
merit."
QUALCOMM Incorporated designs, develops, manufactures, and markets
digital communication products worldwide. It operates through three
segments: Qualcomm CDMA Technologies (QCT); Qualcomm Technology
Licensing (QTL); and Qualcomm Strategic Initiatives (QSI). QUALCOMM
Incorporated was founded in 1985 and is headquartered in San Diego,
California.
QUALCOMM INC: Appeal on Grant of Class Certification Bid Pending
----------------------------------------------------------------
QUALCOMM Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 3, 2021, for the
quarterly period ended December 27, 2020, that the U.S. Court
Appeals for the Ninth Circuit has not yet ruled on the company's
appeal regarding the grant of class certification motion.
Since January 18, 2017, a number of consumer class action
complaints have been filed against the company in the United States
District Courts for the Southern and Northern Districts of
California, each on behalf of a putative class of purchasers of
cellular phones and other cellular devices.
In April 2017, the Judicial Panel on Multidistrict Litigation
transferred the cases that had been filed in the Southern District
of California to the Northern District of California.
On May 15, 2017, the court entered an order appointing the
plaintiffs' co-lead counsel. On July 11, 2017, the plaintiffs filed
a consolidated amended complaint alleging that the company violated
California and federal antitrust and unfair competition laws by,
among other things, refusing to license standard-essential patents
to the company's competitors, conditioning the supply of certain of
the company's baseband chipsets on the purchaser first agreeing to
license our entire patent portfolio, entering into exclusive deals
with companies, including Apple Inc., and charging unreasonably
high royalties that do not comply with our commitments to
standard-setting organizations.
The complaint seeks unspecified damages and disgorgement and/or
restitution, as well as an order that the company be enjoined from
further unlawful conduct. On August 11, 2017, the company filed a
motion to dismiss the consolidated amended complaint. On November
10, 2017, the court denied the company's motion, except to the
extent that certain claims seek damages under the Sherman Antitrust
Act.
On July 5, 2018, the plaintiffs filed a motion for class
certification, and the court granted that motion on September 27,
2018. On January 23, 2019, the United States Court of Appeals for
the Ninth Circuit (Ninth Circuit) granted the company's permission
to appeal the court's class certification order.
On January 24, 2019, the court stayed the case pending the
company's appeal. On December 2, 2019, a hearing on the company's
appeal of the class certification order was held before the Ninth
Circuit. The Ninth Circuit has not yet ruled on the company's
appeal.
QUALCOMM said, "We believe the plaintiffs' claims are without
merit."
No further updates were provided in the Company's SEC report.
QUALCOMM Incorporated designs, develops, manufactures, and markets
digital communication products worldwide. It operates through three
segments: Qualcomm CDMA Technologies (QCT); Qualcomm Technology
Licensing (QTL); and Qualcomm Strategic Initiatives (QSI). QUALCOMM
Incorporated was founded in 1985 and is headquartered in San Diego,
California.
QUALCOMM INC: Bid for Judgment on Pleadings Remains Pending
-----------------------------------------------------------
QUALCOMM Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 3, 2021, for the
quarterly period ended December 27, 2020, that the company's motion
for judgment on the pleadings in the consolidated class action suit
filed by purported stockholders remains pending in the U.S.
District Court for the Southern District of California.
On January 23, 2017 and January 26, 2017, securities class action
complaints were filed by purported stockholders of us in the United
States District Court for the Southern District of California
against the company and certain of its current and former officers
and directors.
The complaints alleged, among other things, that we violated
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as
amended, and Rule 10b-5 thereunder, by making false and misleading
statements and omissions of material fact in connection with
certain allegations that the company is/or was engaged in
anticompetitive conduct.
The complaints sought unspecified damages, interest, fees and
costs. On May 4, 2017, the court consolidated the two actions and
appointed lead plaintiffs.
On July 3, 2017, the lead plaintiffs filed a consolidated amended
complaint asserting the same basic theories of liability and
requesting the same basic relief.
On September 1, 2017, the company filed a motion to dismiss the
consolidated amended complaint. On March 18, 2019, the court denied
the company's motion to dismiss.
On January 15, 2020, the company filed a motion for judgment on the
pleadings. The court has not yet ruled on our motion.
QUALCOMM said, "We believe the plaintiffs' claims are without
merit."
No further updates were provided in the Company's SEC report.
QUALCOMM Incorporated designs, develops, manufactures, and markets
digital communication products worldwide. It operates through three
segments: Qualcomm CDMA Technologies (QCT); Qualcomm Technology
Licensing (QTL); and Qualcomm Strategic Initiatives (QSI). QUALCOMM
Incorporated was founded in 1985 and is headquartered in San Diego,
California.
QUALCOMM INC: Consumer Class Suits Ongoing in Canada
----------------------------------------------------
QUALCOMM Incorporated said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 3, 2021, for the
quarterly period ended December 27, 2020, that the company
continues to defend consumer class action lawsuits in Canada.
Since November 2017, several other consumer class action complaints
have been filed against the company in Canada (in the Ontario
Superior Court of Justice, the Supreme Court of British Columbia
and the Quebec Superior Court) and Israel (in the Haifa District
Court), each on behalf of a putative class of purchasers of
cellular phones and other cellular devices, alleging violations of
certain of those countries' competition and consumer protection
laws.
The claims in these complaints are similar to those in the U.S.
consumer class action complaints. The complaints seek unspecified
damages.
QUALCOMM said, "We believe the plaintiffs' claims are without
merit.
No further updates were provided in the Company's SEC report.
QUALCOMM Incorporated designs, develops, manufactures, and markets
digital communication products worldwide. It operates through three
segments: Qualcomm CDMA Technologies (QCT); Qualcomm Technology
Licensing (QTL); and Qualcomm Strategic Initiatives (QSI). QUALCOMM
Incorporated was founded in 1985 and is headquartered in San Diego,
California.
QUANTUMSCAPE CORP: Jakubowitz Law Reminds of March 8 Deadline
-------------------------------------------------------------
Jakubowitz Law on Jan. 31 disclosed that securities fraud class
action lawsuits have commenced on behalf of shareholders of the
following publicly-traded companies who purchased shares within the
class periods listed below. Shareholders interested in representing
the class of wronged shareholders have until the lead plaintiff
deadline to petition the court. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff. For
more details and to speak with our firm without cost or obligation,
follow the links below.
Kandi Technologies Group, Inc. (NASDAQ:KNDI)
CONTACT JAKUBOWITZ ABOUT KNDI:
https://claimyourloss.com/securities/kandi-technologies-group-inc-loss-submission-form/?id=12566&from=1
Class Period : March 15, 2019 - November 27, 2020
Lead Plaintiff Deadline: February 9, 2021
The filed complaint alleges that defendants made materially false
and/or misleading statements and/or failed to disclose that: (i)
Kandi artificially inflated its reported revenues through
undisclosed related party transactions, or otherwise had
relationships with key customers that indicated those customers did
not have an arms length relationship with Kandi; (ii) the majority
of Kandi's sales in the past year had been to undisclosed related
parties and/or parties with such a close relationship and history
with Kandi that it cast doubt on the arms-length nature of their
relationship; (iii) all the foregoing, once revealed, was
foreseeably likely to cast doubt on the validity of Kandi's
reported revenues and, in turn, have a foreseeable negative impact
on the Company's reputation and valuation; and (iv) as a result,
the Company's public statements were materially false and
misleading at all relevant times.
QuantumScape Corporation f/k/a Kensington Capital Acquisition Corp.
(NYSE:QS)
CONTACT JAKUBOWITZ ABOUT QS:
https://claimyourloss.com/securities/quantumscape-corporation-f-k-a-kensington-capital-acquisition-corp-loss-submission-form/?id=12566&from=1
Class Period : November 27, 2020 - December 31, 2020
Lead Plaintiff Deadline: March 8, 2021
The filed complaint alleges that defendants made materially false
and/or misleading statements and/or failed to disclose that: (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.
Bit Digital, Inc. (NASDAQ:BTBT)
CONTACT JAKUBOWITZ ABOUT BTBT:
https://claimyourloss.com/securities/bit-digital-inc-loss-submission-form/?id=12566&from=1
Class Period : December 21, 2020 - January 8, 2021
Lead Plaintiff Deadline: March 22, 2021
The filed complaint alleges that defendants made 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.
Jakubowitz Law is vigorous in pursuit of justice for shareholders
who have been the victim of securities fraud. Attorney advertising.
Prior results do not guarantee similar outcomes.
CONTACT:
JAKUBOWITZ LAW
1140 Avenue of the Americas
9th Floor
New York, New York 10036
T: (212) 867-4490
F: (212) 537-5887 [GN]
QUICKWAY: Tooley Sues Over Failure to Provide Advance Notice
------------------------------------------------------------
Warren Tooley and Brandy Cook, on behalf of themselves and a
putative class of similarly situated v. QUICKWAY TRANSPORTATION,
INC., QUICKWAY LOGISTICS, INC., and PALADIN CAPITAL, INC., Case No.
3:21-cv-00081 (M.D. Tenn., Feb. 3, 2021) is brought against the
Defendants by failing to provide 60 days advance written notice of
a mass layoff and/or plant closing as required by the Worker
Adjustment and Retraining Notification Act.
The complaint alleges that on December 9, 2020, the Defendants made
a mass layoff and/or plant closing by unilaterally and without
notice shutting down the terminal located at 2827 S. English
Station Road in Louisville, Kentucky without any notice to
employees. The Defendants failed to provide 60 days advance written
notice as required by the WARN Act. On December 9, 2020, Defendants
informed the affected employees that their services would no longer
be required and that they were not required nor allowed to report
for work. Because of the December 9, 2020 terminations, Defendant's
reduction in forces constituted a mass layoff or plant closing
which became effective on December 9, 2020. As such, the Plaintiffs
should have received the full protection afforded by the WARN act,
says the complaint.
The Plaintiffs were employed by Quickway at the Louisville
Facility.
Quickway is engaged in the business of transporting goods and
materials.[BN]
The Plaintiff is represented by:
J. Gerard Stranch, IV, Esq.
Janna Maples, Esq.
BRANSTETTER, STRANCH & JENNINGS, PLLC
223 Rosa Parks Ave. Suite 200
Nashville, TN 37203
Phone: (615) 254-8801
Facsimile: (615) 255-5419
Email: gerards@bsjfirm.com
jannam@bsjfirm.com
- and -
Samuel Strauss, Esq.
TURKE & STRAUSS, LLP
613 Williamson Street, Suite 201
Madison, WI 53703
Phone: (608) 237-1775
Email: Sam@turkestrauss.com
RCI LLC: Bryan Files TCPA Suit in N.D. Ohio
-------------------------------------------
A class action lawsuit has been filed against RCI, LLC. The case is
styled as Tara Bryan, on behalf of herself and all others similarly
situated v. RCI, LLC, Case No. 1:21-cv-00291 (N.D. Ohio, Feb. 3,
2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act.
RCI -- https://www.rci.com/ -- is a timeshare exchange company with
over 4,300 affiliated resorts in 110 countries.[BN]
The Plaintiff is represented by:
Sergei Lemberg, Esq.
LEMBERG LAW
43 Danbury Road, 3rd Floor
Wilton, CT 06897
Telephone: (203) 653-2250
Facsimile: (203) 653-3424
Email: slemberg@lemberglaw.com
REALOGY GROUP: Facing Leeder Putative Class Action
---------------------------------------------------
Realogy Group LLC said in its Form 8-K filing with the U.S.
Securities and Exchange Commission filed on February 2, 2021, that
the company is facing a putative class action suit entitled, Leeder
v. The National Association of Realtors, Realogy Holdings Corp.,
Homeservices of America, Inc., BHH Affiliates, LLC, HSF Affiliates,
LLC, The Long & Foster Companies, Inc., RE/MAX LLC, and Keller
Williams Realty, Inc.
On January 25, 2021, the Company became party to the putative class
action.
In this putative class action, the plaintiff takes issue with
certain NAR policies, including those related to buyer broker
compensation at issue in the Moehrl and Sitzer matters, but claims
the alleged conspiracy has harmed buyers (instead of sellers).
The plaintiff alleges that the defendants made agreements and
engaged in a conspiracy in restraint of trade in violation of the
Sherman Act and were unjustly enriched, and seek a permanent
injunction enjoining NAR from establishing in the future the same
or similar rules, policies, or practices as those challenged in the
action as well as an award of damages and/or restitution, interest,
and reasonable attorneys' fees and expenses.
Realogy Group LLC provides residential real estate services in the
United States and internationally. The company's Real Estate
Franchise Services segment franchises residential real estate
brokerages through its portfolio of brands, including Century 21,
Coldwell Banker, Coldwell Banker Commercial, ERA, Sotheby's
International Realty, and Better Homes and Gardens Real Estate. The
company was formerly known as Realogy Corporation. The company was
incorporated in 2006 and is headquartered in Madison, New Jersey.
Realogy Group LLC is a subsidiary of Realogy Intermediate Holdings
LLC.
REALPAGE INC: Court Tosses Diane Jones' Bid to Certify Class
------------------------------------------------------------
In the class action lawsuit captioned as DIANE D. JONES, on behalf
of herself and all others similarly situated, v. REALPAGE, INC.
d/b/a LEASINGDESK SCREENING, Case No. 3:19-cv-02087-B (N.D. Tex.),
the Hon. Judge Jane J. Boyle entered an order denying the
Plaintiff's Motion to Certify Class.
The Court says that class certification is inappropriate because
Jones's claims are not typical of the claims of the putative class
members. The Court is also not persuaded by Jones's supplemental
authority that class certification is appropriate.
This is a suit under the Fair Credit Reporting Act (FCRA). Jones
alleges the Defendant RealPage, a consumer-reporting agency,
"systematically violates section 1681e(b) of the FCRA by failing to
use reasonable procedures to assure the maximum possible accuracy
of information included on" consumer reports.
Jones seeks relief on behalf of herself and two putative classes.
RealPage sells consumer reports to residential leasing agents for
tenant-screening purposes.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at http://bit.ly/3rnx32eat no extra charge.[CC]
REED'S INC: S.D. New York Narrows Claims in Mason Consumer Suit
---------------------------------------------------------------
The U.S. District Court for the Southern District of New York
grants in part and denies in part, the Defendant's motion to
dismiss the lawsuit titled DENISE MASON, Plaintiff v. REED'S INC.,
Defendant, Case No. 18-cv-10826 (JGK) (S.D.N.Y.).
Plaintiff Mason brings the putative class action against Reed's
alleging that the Defendant improperly labeled its soda as being,
among other things, "All-Natural" and containing "no
preservatives." The Defendant alleges that those labels are in fact
truthful and accurate. Seeking injunctive and monetary relief, the
Plaintiff asserts five claims: (1) violation of New York General
Business Law Section 349, (2) violation of New York General
Business Law Section 350, (3) breach of an express warranty, (4)
unjust enrichment, and (5) common law fraud. The Defendant moves to
dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of
Civil Procedure for lack of standing and failure to state a claim.
In support of her allegations that the product is not natural and
contains preservatives, the Plaintiff points to the definition of
"chemical preservative" by the Food and Drug Administration ("FDA")
as a chemical that "tends to prevent or retard deterioration" of
the food to which it is added, with certain exceptions. Moreover,
on its website, the FDA lists citric acid as a preservative. The
FDA also has sent at least one warning letter to a company in which
it suggests that citric acid is a preservative. The Plaintiff also
includes a declaration of a food scientist, Dr. Meyers, in which
Dr. Meyers asserts that citric acid functions as a preservative. In
addition to functioning as a preservative, citric acid can be used
for flavoring purposes.
While citric acid is naturally occurring in citrus fruits, the
Plaintiff alleges that the citric acid used in the Defendant's
products is not naturally occurring. Instead, the Plaintiff alleges
that the Defendant used citric acid fermented by a strain of black
mold fungus known as Aspergillus niger. The FDA has identified
citric acid produced in this fashion as synthetic. The FDA does not
provide a definition of "natural," but it has said that it has not
objected to the use of the term "natural" where the food does not
contain "added color, artificial flavors, or synthetic substances."
It has also sent entities warning letters suggesting that
supplemental citric acid is not a "natural" ingredient.
The Defendant moves to dismiss the Second Amended Complaint,
arguing that the Plaintiff does not have standing to seek
injunctive relief and that the Defendant's statements were not
misleading.
District Judge John G. Koeltl finds that in the case, the Plaintiff
has not alleged that she would buy the Defendant's products again.
The Plaintiff argues that she does not need to allege that she
would buy the products again to have standing to pursue injunctive
relief, citing Belfiore v. Procter & Gamble Co. ("Belfiore I") for
the proposition that requiring a plaintiff to allege that the
plaintiff would continue to purchase a product the plaintiff knew
was materially misleading "would denigrate the New York consumer
protection statute, designed as a major support of consumers who
claim to have been cheated" because "once the consumer learned of
the deception, the consumer would voluntarily abstain from
buying."
The court in Belfiore I explicitly noted that it based its decision
on the fact that the Court of Appeals had not "addressed the issue
of whether a plaintiff, with no claim of probable future injury,
may pursue an injunction under state consumer protection statutes."
However, the Court of Appeals for the Second Circuit has since held
that "a plaintiff seeking to represent a class must personally have
standing" and that while "past injuries may provide a basis for
standing to seek money damages, they do not confer standing to seek
injunctive relief unless the plaintiff can demonstrate that she is
likely to be harmed again in the future in a similar way," Judge
Koeltl notes, citing Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239
(2d Cir. 2016).
The plaintiff's reliance on the public policy rationale for
standing in this context advanced in Belfiore I, which predated
Nicosia, is unavailing, Judge Koeltl opines. Indeed, courts that
have addressed this issue after Nicosia have concluded that a
plaintiff in these circumstances does not have Article III standing
to pursue injunctive relief, citing Ashour v. Arizona Beverages USA
LLC, No. 19-cv-7081, 2020 WL 5603382, at *4 (S.D.N.Y. Sept. 18,
2020).
In the case, Judge Koeltl notes, the Plaintiff has not alleged in
the Second Amended Complaint that she would purchase the
Defendant's products again if not mislabeled, and the Court of
Appeals has made clear that a plaintiff in a consumer protection
suit does not have standing to seek injunctive relief unless the
plaintiff can demonstrate that she is likely to suffer a similar
injury in the future. Rather, the Plaintiff specifically alleged
that she, and the members of the putative class, would not have
purchased the Defendant's products at their advertised price had
she and the members of the putative class known the labels were
misleading. And because the named plaintiff must personally have
standing, even if other members of the putative class may suffer
future injury, that is not sufficient for the Plaintiff to have
standing to seek injunctive relief. Accordingly, the Plaintiff does
not have standing to sue for injunctive relief.
The Plaintiff also alleges that the "All-Natural" and "no
preservative" labels were materially misleading because they were
false and likely to mislead a reasonable consumer acting
reasonably. The Plaintiff alleges that there were two types of
misleading statements: that the products contained no preservatives
and that the products were all natural. She contends that the
Defendant's labeling is false and misleading because the products
contain citric acid, a preservative. She alleges injury in that she
paid a price premium for the product that she thought was all
natural and without preservatives. Accordingly, Judge Koeltl holds,
the Plaintiff has alleged adequately that the Defendant engaged in
consumer-oriented activity that was materially misleading and
caused the Plaintiff a cognizable injury.
The Defendant argues, among other things, that the Plaintiff cannot
state plausibly that it violated Sections 349 and 350 of the New
York General Business Law because its conduct is protected by the
laws' safe harbor provisions. Judge Koeltl notes that it is at
least ambiguous whether citric acid can be considered a
preservative in the Defendant's products. Therefore, it cannot be
concluded on a motion to dismiss that the Defendant complied with
the safe harbor provisions.
Judge Koeltl also holds, among other things, that the Plaintiff has
pleaded enough to satisfy her burden to state a claim for breach of
express warranty and has pleaded adequately her unjust enrichment
claim, and whether she can recover will turn on issues of fact that
cannot be determined on the motion to dismiss.
In the case, there is sufficient ambiguity in the regulations and
definitions of "natural" and "preservative" that regulatory
guidance alone is not sufficient to infer the Defendant's knowledge
that its statements were false or misleading. The Plaintiff alleges
that her attorney gave the Defendant a copy of the complaint, which
put the Defendant on notice that its statements were false.
However, that notice came after the Defendant already put its
statements on its products and the Plaintiff purchased those
products. Therefore, the notice could not have given the Defendant
knowledge that its statements were false at the time it put its
statements on the products and at the time the Plaintiff purchased
the products. Accordingly, the common law fraud claim is
dismissed.
Without a factual record, it would be inappropriate to conclude
what remedies are available to the Plaintiff, Judge Koeltl holds.
Until there is a more developed record, the Court defers ruling on
whether non-restitutionary disgorgement could be an appropriate
remedy in the case. The motion to strike the class action
allegations is denied without prejudice to renewal in connection
with a motion for class action certification.
The Court has considered all of the arguments of the parties. To
the extent not discussed, the arguments are either moot or without
merit. For the foregoing reasons, the Defendant's motion to dismiss
is granted with respect to the Plaintiff's claims for injunctive
relief. It is denied with respect to the causes of action pursuant
New York General Business Law Sections 349 and 350, for breach of
warranty, and for unjust enrichment as claims for non-injunctive
relief. The motion to dismiss is granted with respect to the cause
of action for common law fraud. The Defendant's requests to strike
the non-restitutionary disgorgement remedy and class allegations
are denied without prejudice to renewal. The Clerk is directed to
close Docket Nos. 41 and 46.
A full-text copy of the Court's Memorandum Opinion and Order dated
Jan. 28, 2021, is available at https://tinyurl.com/15n91n4y from
Leagle.com.
REGIONS BANK: Faces Fisk Suit Over Failure to Pay Overtime Wages
----------------------------------------------------------------
H. FISK, individually and on behalf of all those similarly
situated, Plaintiff v. REGIONS BANK, Defendant, Case No.
2:21-cv-02018-CSB-EIL (C.D. Ill., January 28, 2021) is a class and
collective action complaint seeking to redress the Defendant's
alleged violations of the Fair Labor Standards Act and the Illinois
Minimum Wage Act.
The Plaintiff brings this complaint on behalf of himself and on
behalf of all Bakers, Tellers, Head Tellers, Financial Relationship
Specialists, and other non-exempt, hourly employees presently and
formerly employed by the Defendant in Illinois, who performed the
Opening Procedures off-the-clock without being compensated by the
Defendant.
As a result of the Defendant's alleged policy and practice of not
paying its employees who performed the Opening Procedures
off-the-clock, they were not paid all their lawfully earned
overtime wages despite they regularly worked in excess of 40 hours
in workweek. In addition, the Defendant failed to accurately record
all time they worked, the suit says.
The Plaintiff was employed by the Defendant from in or around June
2017 to in or around August 2018 to perform the Opening Procedures.
Regions Bank is a bank operating in Illinois. [BN]
The Plaintiff is represented by:
Justin L. Swidler, Esq.
Matthew D. Miller, Esq.
SWARTZ SWIDLER, LLC
1101 Kings Highway North, Suite 402
Cherry Hill, NJ 08034
Tel: (856) 685-7420
Fax: (856) 685-7417
E-mail: jswidler@swartz-legal.com
mmiller@swartz-legal.com
RLJ C San Francisco: Website Lacks Accessibility Info, Rios Says
----------------------------------------------------------------
Mary Rios v. RLJ C San Francisco, LP, a Delaware Limited
Partnership, RLJ C San Francisco General Partner, LLC, a Delaware
Limited Liability Company and RLJ C San Francisco Lessee, LP, a
Delaware Limited Partnership, Case No. 4:21-cv-00338-KAW (N.D.
Cal., Jan. 13, 2021) is brought on behalf of the Plaintiff and all
other similarly situated, alleging violations of the Defendants 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, on September 17, 2020, Ms. Rios went to
the Marriott San Francisco Union Square reservation Website at
https://www.marriott.com/hotels/travel/sfocn-courtyard-san-franciscounion-square,
seeking to book an accessible room at the location. She alleges
that the Defendants failed to provide information on the hotel's
reservation Website that would permit her to determine if there are
rooms that would work for people with physical disabilities like
her.
As a result of the Defendants' 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 her due to her disability, the suit
says.
Ms. Rios is a California resident with physical disabilities. She
is substantially limited in her ability to walk. She is a
paraplegic and uses a wheelchair for mobility.
The Defendants are hotel companies located in 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
ROBERTA PLACE: Family of Home Care Resident Files $50MM Class Suit
------------------------------------------------------------------
OrilliaMatters reports that Roberta Place in Barrie, Ont., has seen
a startling rise in COVID-19 cases at its long-term care home
recently, as well as 53 deaths in just the last few weeks.
Families of Roberta Place residents now want answers and a class
action lawsuit seeking $50 million in damages against Barrie Long
Term Care Centre Inc, Jarlette Holdings Inc., Jarlette Limited, and
Roberta Place Retirement Lodge Inc. has been started.
Marcella Lambie is the representative plaintiff and she is acting
as litigation guardian for her brother, George Head. Mr. Head has
been diagnosed with COVID-19 and his condition is deteriorating.
Ms. Lambie and others want to hold Roberta Place accountable for
what they describe as "gross negligence" in failing to keep their
residents safe from the virus. Nearly all residents have tested
positive for COVID-19.
An inspection conducted earlier in January found that the home
failed to follow proper protocols to keep residents safe, allowing
rooms to be shared by both confirmed positive COVID-19 patients and
those who had not yet tested positive for the virus.
An inspector with the Ministry of Long-Term Care said they observed
staff and resident cohorting protocols not being followed, in an
inspection report dated Jan. 18, 2021.
Following the inspection, which was carried out on Jan. 12 and Jan.
13, the Ministry of Long-Term Care found that the "licensee has
failed to ensure that the home was a safe and secure environment
for its residents."
"The inspector identified resident rooms that were shared by both
confirmed COVID-19 positive residents and residents not confirmed
to have COVID-19. A personal support worker (PSW) indicated that
residents within these shared rooms would often come into close
contact with each other," the inspection report states.
"Certain staff were providing care to both confirmed COVID-19
positive residents and residents not confirmed to have COVID-19.
The administrator indicated that cohorting of staff on all resident
home areas was not always possible."
The inspector also noted that the home did not strictly follow the
directive to place all residents in isolation under droplet and
contact precautions.
Currently, there are 128 active COVID-19 cases among residents in
the long-term care home, which has 137 total beds available. There
are also 84 active COVID-19 cases among staff members.
Sadly, 53 residents and one essential caregiver have died following
the outbreak. Families are looking for answers.
"How can this happen at a private care facility nearly one year
into a pandemic?" asks Ms. Lambie whose brother pays over $2,700
per month to reside at Roberta Place. "We should expect more from
our long-term care homes and we should also hold them accountable
for what they've done."
Gayle Brock, from Brock Medical Malpractice Law, one of the lead
lawyers in the case advised that "Ms. Lambie started this lawsuit
because she entrusted Roberta Place to care for her brother and to
protect him. Roberta Place is his home, and it failed him".
Ms. Brock confirmed that the lawsuit has been started and the
owners of Roberta Place will have to respond to the lawsuit in the
near future.
Any questions regarding the class-action lawsuit should be directed
to Gayle Brock at Brock Medical Malpractice Law, 705-739-4022,
gtbrock@brockmedmal.com or Robert Durante at Oatley Vigmond,
705-726-9021, rdurante@oatleyvigmond.com. [GN]
ROBERTA PLACE: To Join Mega Suit Against Ontario Care Homes
-----------------------------------------------------------
Marg. Bruineman at barrietoday.com reports that the lawyers
involved in assembling a mega class action against Ontario
long-term care homes are including Roberta Place as part of the
lawsuit, representing family members of those who have died as a
result of COVID-19.
Darryl Singer said his firm, Diamond and Diamond Lawyers, has been
in touch with several family members of residents of the Barrie
long-term care home where all but one resident has fallen ill due
to COVID-19 and many have died.
About 100 long-term care homes are part of the class action being
proposed.
Initially, the action started as a result of deaths in Ontario
facilities during the first wave. That has since been expanded as
the pandemic once again takes a deadly toll.
The country's spotlight has recently turned to the Roberta Place
long-term care home in Barrie, which has reported Canada's first
known outbreak of the COVID-19 UK variant, claiming the lives of 53
residents along with an essential caregiver associated with the
home as of Friday. Of the 129 residents, 128 have tested positive
along with 84 staff members.
The class action, says Singer, turns on how the homes failed the
residents.
"Roberta Place is part of a large lawsuit" assembled by three law
firms that they're calling a mega action, he said. "We've
essentially put close to 100 homes into one large class action,
rather than doing 100 class actions.
"If they are not already part of this larger action, they are all
ultimately going to be consolidated into one large action because
essentially what we say is the allegations against Roberta Place
are no different than the allegations against every other operator
running every other home."
The suit is accusing the homes of lacking in emergency
preparedness, personal protective equipment, staffing and
facilities for isolation as well as not paying attention to the
crisis when it arose in March and failing to prepare for "the
inevitable second wave," said Singer.
"All of the modelling from the public health officials at that time
was along the lines of: 'It's going to die down over the summer,
but get ready, it's going to ramp up again in the fall when it gets
cold.' And sure enough that's what happened."
And while the allegations against Roberta Place are the same as the
other homes, the difference is that the root cause in Barrie was
this more virulent and deadly UK variant.
The bottom line, he charges, is that the residents and the staff
were not adequately protected.
"They just didn't do it," he said. "We suspect Roberta Place is
going to say: 'Yeah, we were prepared for the regular strain but
nobody saw this new UK variant happening.' And my answer is to call
B.S. on that because at the end of the day, you're either prepared
for an outbreak or you're not."
Considerations are being given to a separate class action involving
workers of the homes, many of whom themselves have fallen ill while
dealing with additional stresses in the workplace.
But unionized homes would not be part of any lawsuits since
contracts from bargaining agreements typically preclude civil
lawsuits, said Singer.
More than 100 employees at Roberta Place are unionized.
The Health Care and Service Workers Union Local 304, which is
affiliated with the Christian Labour Association of Canada (CLAC),
has 115 members, consisting of personal support workers (PSWs),
registered practical nurses (RPNs), and other program staff. It
indicates there are no immediate plans for legal action on behalf
of the workers.
"Our members right now are focused on ensuring that the residents
are cared for and that everyone at Roberta Place is kept safe," Ian
DeWaard, its provincial director, wrote in an email. "CLAC is
monitoring the situation and inquiring into whether members have
been exposed to risk due to negligence or misconduct. We are in
contact with those at work, and those who remain at home due to
infection."
Its options, he added, include grievance arbitration and complaints
with the Ontario Labour Relation Board and the Workplace Safety and
Insurance Board.
Singer earlier said he doesn't expect new legislation that offers
protections to homes that have made "good faith effort". Even
though Supporting Ontario's Recovery Act changes the standard of
proof from mere negligence to gross negligence, Singer said the
homes involved the class-actions do not meet the good-faith
standards that include following public health guidelines. [GN]
ROBINHOOD FINANCIAL: Cobos Sues Over Stock Market Manipulation
--------------------------------------------------------------
LEVI COBOS, an individual and those similarly situated v. ROBINHOOD
FINANCIAL LLC, a business form unknown; ROBINHOOD SECURITIES, LLC,
a business form unknown; ROBINHOOD MARKETS, INC., a business form
unknown, Case No. 2:21-cv-00843 (Jan. 29, 2021) alleges that
Robinhood purposefully, willfully, and knowingly manipulated the
stock prices of Blackberry (NASDAQ: BB), AMC Theatres (NASDAQ:
AMC), and Gamestop (NASDAQ: GME) and the ability to transact on its
trading platform in the midst of an unprecedented stock rise and
fall and trading behaviors occurring on January 28, 2021, resulting
in the deprivation of its customers and users, retail investors, to
invest and transact in an open-market free of manipulation.
On January 27, 2021, Robinhood was publicly criticized in various
news publication as one source of trouble in volatility of stock
prices Gamestop (NASDAQ: GME), AMC Theatres (NASDAQ: AMC), and
Blackberry (NASDAQ: BB), and that Robinhood's participation in the
securities exchange markets garnered controversy because of its
customer based composition of mostly younger, inexperienced, and
easily influenced retail investors.
In an effort to allay criticisms and negative publicity surrounding
its business operations, on January 27-28, 2021, Robinhood
allegedly decided to and did engage in unfair and improper
deprivation of computer systems, transaction/trading platform, and
services to its customers by disabling the "buy" button on its app;
and, Robinhood restricted, limited, or conditioned their ability to
transact or trade, abruptly, purposefully, willfully, and knowing
or having reason to know that the stock prices for Gamestop
(NASDAQ: GME), AMC Theatres (NASDAQ: AMC), Blackberry (NASDAQ: BB),
and other securities, would be manipulated and would impact the
open market as a result, thus causing harm to its customers, the
open market, its fellow broker/dealers and firms, as well as
issuers of securities ("Selective Market Manipulation"), says the
complaint.
Plaintiff Cobos is a citizen of the state of California and resides
in the County of Los Angeles, at all times relevant. At all times
relevant, Mr. Cobos is and was a customer of Robinhood and was and
is a user of the Robinhood app.
Robinhood is an online brokerage firm that caters to young and
inexperienced investors and investors who typically would not be
well prepared to burden financial losses or market manipulations as
ordinary or experienced investors.[BN]
The Plaintiff is represented by:
Joseph M. Kar, Esq.
LAW OFFICE OF JOSEPH M. KAR, PC
15250 Ventura Blvd., Suite PH-1220
Sherman Oaks, CA 91403
Telephone: (818) 501-6930
Facsimile: (818) 501-6935
- and -
Gerald L. Kroll, Esq.
KROLL LAW FIRM
970 West Broadway, Ste. E-200
Jackson, WY 83001
Telephone: (202) 248-5423
ROBINHOOD FINANCIAL: Deprives Users to Trade Stocks, Gossett Says
-----------------------------------------------------------------
JOSH GOSSETT and JAMES LAPLANT, each individually, and on behalf of
all others similarly situated v. ROBINHOOD FINANCIAL, LLC, a
Delaware limited liability company; ROBINHOOD SECURITIES, LLC, a
Delaware limited liability company; ROBINHOOD MARKETS, INC., a
Delaware Corporation; and DOES 1-100, inclusive, Case No.
2:21-cv-00837 (C.D. Cal., Jan. 29, 2021) alleges that the Robinhood
deliberately, willfully and knowingly disabled the "buy" function
for any of its users who attempted to trade the following
securities: Gamestop ("GME"), AMC Entertainment Holdings, Inc
("AMC") and BlackBerry Ltd ("BB"), among other stocks.
According to the complaint, such action is completely diametrical
to Robinhood's advertised selling point of "democratizing finance"
for all. The effect of Robinhood's actions were intentionally
designed to benefit, and actually benefitted, large, corporate
financial interests that bet against, or shorted, the Securities.
The presumptive constituents of Robinhood's "democracy," the
Company's alleged "target market" of average "Jack and Jill"
traders, were sacrificed in favor of large institutions and market
players, and Robinhood's own's self-interest.
A significant number of retail investors who relied on Robinhood to
be their champion, and who chose Robinhood's platform to invest
their money, were told that "ongoing volatility" was the reason for
the sudden suspension of certain basic and crucial account trading
functions, the suit says.
The Plaintiffs are residents of California.
Robinhood Financial, famous as the champion of the small retail
investor, is a multi-billion-dollar online brokerage which prides
and markets itself on "democratizing finance for all."[BN]
The Plaintiffs are represented by:
Maurice D. Pessah, Esq.
Michael Morris-Nussbaum, Esq.
Summer E. Benson, Esq.
PESSAH LAW GROUP, PC
661 N. Harper Ave., Suite 208
Los Angeles, CA 90048
Telephone: (310) 772-2261
E-mail: maurice@pessahgroup.com
mmnussbaum@pessahgroup.com
sbenson@pessahgroup.com
- and -
Stuart Chelin, Esq.
CHELIN LAW FIRM
1801 Century Park East, Suite 2500
Los Angeles, CA 90076
Telephone: (310) 556-9664
E-mail: stuart@chelinlaw.com
ROBINHOOD FINANCIAL: Diamond Sues Over Stock Market Manipulation
----------------------------------------------------------------
JONATHAN DIAMOND, on behalf of himself and all others similarly
situated v. ROBINHOOD FINANCIAL, LLC, Case No. ROBINHOOD
SECURITIES, LLC, ROBINHOOD MARKETS, INC. And JOHN DOES 1-10, Case
No. 6:21-cv-00207 (M.D. Fla., Jan. 29, 2021) seeks to enjoin
Robinhood's anticompetitive, unlawful, and unfair practices and to
require Robinhood to compensate Plaintiff and members of the Class
for the losses they have incurred.
Allegedly, on January 28, 2021, Robinhood, halted the purchase of
stocks for publicly traded companies including GameStop,
Blackberry, Nokia, AMC, and others. This unilateral move was done
so in a concerted effort to de-platform and deprive individual
investors of the ability to control their own investments for the
benefit of itself and others.
This entire sequence of events started when an investment
management fund, "Melvin Capital Management" ("Melvin") who held
over $12.5 Billion in assets placed an aggressive short sell on the
company GameStop. To contradict this decision, the heavily followed
Reddit page "r/wallstreetbets" and their administrators advocated
that their followers purchase GameStop stock using the broker
Robinhood. The response of the individual investors motivated by
this and other factors was so effective that it drove the stock
price to over 400% of its previous value. As a result, Melvin lost
billions on their return and Robinhood chose to block users from
buying GameStop stock but still allowed liquidation, the suit
says.
Robinhood's users lost hundreds of millions of dollars as a result
of Robinhood's alleged stock market manipulation.
Plaintiff Jonathan Diamond is an individual, over 18 years of age,
who is a Robinhood user. At all times relevant, Plaintiff was, and
currently is, a resident and citizen of the State of California
Robinhood is an online brokerage firm founded in 2013 that states
it is a "pioneer in commission-free investing." Robinhood's
customers can place securities trades through the firm's website
and by using a web-based application (or "app"). Robinhood picks
and chooses which securities its customers can buy and sell,
including option contracts, and engage in trading on margin. The
company possesses no storefront offices and operates entirely
online. Robinhood is a Financial Industry Regulatory Authority
("FINRA") -- regulated broker -- dealer.[BN]
The Plaintiff is represented by:
Janet R. Varnell, Esq.
Brian W. Warwick, Esq.
Matthew T. Peterson, Esq.
Erika Willis, Esq.
VARNELL & WARWICK, P.A.
1101 E. Cumberland Ave., Suite 201H, No. 105
Tampa, FL 33602
Telephone: (352) 753-8600
Facsimile: (352) 504-3301
E-mail: jvarnell@varnellandwarwick.com
bwarwick@varnellandwarwick.com
mpeterson@varnellandwarwick.com
ewillis@varnellandwarwick.com
kstroly@varnellandwarwick.com
ROBINHOOD FINANCIAL: Faces Class Action Over Gamestop Trading Halt
------------------------------------------------------------------
WLS reports that GameStop caused a market frenzy on Wall Street as
an online army of amateur day traders took on multibillion-dollar
hedge funds that bet gaming retailer was on the brink of collapse.
Shares of GameStop soared to an intraday high of $483 on Jan. 28
before trading was halted by the popular app Robinhood, which has
said its mission is to "democratize finance for all," appealing to
young millennial traders.
But now, Robinhood customers are outraged, lining up by the
tens-of-thousands in a class-action lawsuit filed in the Southern
District of New York.
That suit alleges that Robinhood deprived its investors by removing
the GameStop stock.
In a blog post on Jan. 29, Robinhood said it "was not because it
wanted to stop people from buying these stocks."
"The class actions and the legal claims against Robinhood are
really, really weak," said Securities Litigator Andrew Stoltmann.
"There are some really good protections that Robinhood has built
into their new account agreement with customers that's going to
make a class action very, very difficult to be successful."
The U.S. Securities and Exchange Commission (SEC) also weighed in
and said it's "closely monitoring and evaluating the extreme price
volatility of certain stocks' trading prices over the past several
days."
Attorneys General from multiple states, along with a couple of
senators, have called for an investigation into Robinhood.
"It doesn't matter what the reason is, consumers just want their
money. People are putting their paychecks into the stock market and
trusting these big companies with their money and they're letting
them down," said Joshua Browder, Founder of DoNotPayCEO.
"It was very frustrating. I was seeing opportunities to make
money," said Nick Miller, a Chicago day trader suing Robinhood. "I
will sell the day they open up the trading platforms and allow
everybody to buy and sell as they feel.
Ahead of the Feb. 1 opening bell, Robinhood will continue its trade
restrictions, allowing customers to buy just one share of GameStop
stock and five options contracts. [GN]
ROBINHOOD FINANCIAL: Removed Stock "AMC" from Platform, Omanhe Says
-------------------------------------------------------------------
BRIAN OMAHNE, individually and behalf of all those similarly
situated v. ROBINHOOD FINANCIAL, LLC, ROBINHOOD SECURITIES, LLC,
and ROBINHOOD MARKETS, INC., Case No. 3:21-cv-00013-SLH (W.D. Pa.
Jan. 28, 2021) alleges that Robinhood purposefully, willfully, and
knowingly removed the stock "AMC" from its trading platform in the
midst of an unprecedented stock rise, depriving retail investors of
the ability to invest in the open-market and manipulating the
open-market.
According to the complaint, on January 21, 2021 stocks in AMC
Entertainment (AMC) began to rise. Robinhood allowed retail
investors to trade AMC on the open market during that time. On
January 27, 2021 Robinhood, in order to slow the growth of AMC
deprived their customers of the ability to use their service,
abruptly, purposefully, willfully, and knowingly pulled AMC from
their app. Meaning, retail investors could no longer buy or even
search for AMC on Robinhood's app, the suit says.
On January 28, 2021, Plaintiff used his Robinhood app, searched for
AMC on Robinhood’s app, and found it was unavailable. The stock
did not even appear, although AMC is a publicly traded company
available on all other platforms, alleges the suit
Robinhood Financial is an online brokerage firm.[BN]
The Plaintiff is represented by:
David M. Manes, Esq.
Prabhu Narahari, Esq.
MANES & NARAHARI LLC
Law & Finance Building
429 Fourth Avenue, Suite 300
Pittsburgh, PA 15219
Telephone: (412) 626-5591
Facsimile: (412) 650-4845
E-mail: dm@manesnarahari.com
pn@manesnarahari.com
ROBINHOOD FINANCIAL: Restricts Investment in Free Market, Suit Says
-------------------------------------------------------------------
HANNA KAYALI and MOHAMMED A. DOLEH, individually and on behalf of
others similarly situated v. ROBINHOOD FINANCIAL, LLC, ROBINHOOD
SECURITIES, LLC, ROBINHOOD MARKETS, INC., CITADEL ENTERPRISE
AMERICAS, LLC, TD AMERITRADE, INC., THE CHARLES SCHWAB CORPORATION,
CHARLES SCHWAB & CO. INC., and MELVIN CAPITAL MANAGEMENT, LP, Case
No. 1:21-cv-00510 (N.D. Ill., Jan. 28, 2021) is a class action
based upon the Defendants' intentional and willful restriction for
certain securities including Naked Brand Group Ltd., Nokia
Corporation, and AMC Entertainment Holdings, Inc., from its trading
platform thereby dispossessing the retail investors of the ability
to invest in the free market.
The complaint alleges that on January 28, 2021, in an effort to
restrict the free market, Robinhood and TD Ameritrade deprived its
individual investor customers of the ability to transact on their
platforms for certain securities including NAKD, NOK, and AMC.
Meanwhile, hedge funds and institutional investors may continue to
trade as normal.
Robinhood explicitly stated, "We continuously monitor the markets
and make changes where necessary. In light of recent volatility, we
are restricting transactions for certain securities to position
closing only, including $AAL, $AMC, $BB, $BBBY, $CTRM, $EXPR, $GME,
$KOSS, $NAKD, $NOK, $SNDL, $TR, and $TRVG. We also raised margin
requirements for certain securities."
The Plaintiffs contend that Robinhood and TD Ameritrade's actions
were done purposefully and knowingly to manipulate the market for
the benefit of hedge funds and institutional investors.
Plaintiff Kayali purchased AMC, NAKD, and NOK on January 27, 2021.
On the morning of January 28, 2021, the Plaintiff Kayali sold her
interest in NAKD. On the morning of January 28, 2021, the Plaintiff
Kayali used her Robinhood app, searched for AMC and NOK, and found
they were unavailable. The stock did not even appear, although AMC
and NOK are publicly traded companies.
Plaintiff Doleh purchased AMC stock on January 27, 2021. On the
morning of January 28, 2021, the Plaintiff Doleh used his TD
Ameritrade app, searched for AMC, and found it was unavailable. The
stock did not even appear, although AMC is a publicly traded
company. Thus, Plaintiffs, like all others similarly situated lost
out on all earning opportunities.
Robinhood is a FINRA regulated broker-dealer, registered with the
U.S. Securities and Exchange Commission, and is a member of the
Securities Investor Protection Corporation. The company's revenue
comes from three main sources: interest earned on customers’ cash
balances, selling order information to high frequency traders, and
margin lending. The company has 13 million users as of its most
recent Securities and Exchange Commission (SEC) filing.
Citadel Enterprise Americas, LLC is one of the largest clients of
Robinhood, and on information and belief, Citadel reloaded their
short sale positions before they told Robinhood to stop trading
stocks in GameStop Corp. TD Ameritrade is a broker that offers an
electronic trading platform for the trade of financial assets
including common stocks, preferred stocks, futures contracts,
exchange-traded funds, options, cryptocurrency, mutual funds, and
fixed income investments.[BN]
The Plaintiffs are represented by:
Lana B. Nassar, Esq.
BLAISE & NITSCHKE, P.C.
123 N. Wacker Drive, Suite 250
Chicago, IL 60606
Telephone: (312) 448-6602
Facsimile: (312) 803-1940
E-mail: lnassar@blaisenitschkelaw.com
ROBINHOOD FINANCIAL: Tampers Stock Trading, Investments, Fresa Says
-------------------------------------------------------------------
MARC A. FRESA v. ROBINHOOD FINANCIAL LLC, ROBINHOOD SECURITIES LLC,
and ROBINHOOD MARKETS INC., Case No. 3:21-cv-00134 (D. Conn., Jan.
29, 2021) is a class action brought on behalf of the Plaintiff and
many other users similarly situated for damages and injunctive
relief against the Defendants for tampering and interfering with
stock trading and investments.
According to the complaint, the Defendants foreclosed small retail
investor access to the investment/stock market by removing and/or
restricting access to various stocks and thereafter limiting stock
purchases from their online trading platforms including, but not
limited to, Gamestop "GME," Blackberry "BB," AMC Entertainment
"AMC," Bed Bath and Beyond "BBBY," Express "EXPR," Naked Brand
"NAKD," and/or Nokia "NOK." ("blocked stocks").
The Plaintiff contends that while small retail investors were
denied access to said blocked stocks and were prevented from
protecting their investments or profiting from blocked stock
fluctuation and trending, larger hedge-fund and other non-retail
institutional investors continued to enjoy buy and sell privileges.
He adds that the Defendants were aware that preventing access to
the blocked stocks would have a negative economic effect on its
customers. Moreover, the Defendants have also benefitted
economically from data that they sold to non-retail investors and
hedge-funds, thereby advantaging these larger outlets to the
detriment of the Defendants' smaller retail investors to whom
fiduciary and fair dealing duties were owed. The conduct of the
Defendants, or any of them, constitutes Breach of Trust, Breach of
the Implied Warranty of Good Faith and Fair Dealings and one or
more violations of the Connecticut Unfair Trade Practices Act,
says the suit.
Marc Fresa was a citizen of the State of Connecticut.
Robinhood is an application and/or Internet-based brokerage and
financial service, where small retail investors can enjoy
"commission free" stock trading and investment opportunities.[BN]
The Plaintiff is represented by:
Stephan Seeger, Esq.
LAW OFFICES: STEPHEN J. CARRIERO
810 Bedford Street, Suite No. 3
Stamford, CT 06901
Telephone: (203) 273-5170
Facsimile: (203) 357-0608
E-mail: Seegerkid2@aol.com
ROBINHOOD FINANCIAL: Users Deprived From Buying Stocks, Suit Says
-----------------------------------------------------------------
SAGI CEZANA, on behalf of himself and all others similarly
situated, v. ROBINHOOD FINANCIAL LLC, ROBINHOOD SECURITIES, LLC,
and ROBINHOOD MARKETS, INC., Case No. 5:21-cv-00759 (N.D. Cal.,
Jan. 29, 2021), alleges that Robinhood purposefully, willfully, and
knowingly removed its users' ability to purchase AMC from its
trading platform in the midst of the short squeeze, depriving
retail investors of the ability to invest in the open-market and
manipulating the open-market to artificially lower the price.
In late 2020, stocks for various companies began to fluctuate
greatly, including the stock for the company American Movie Company
("AMC"), which experienced an extreme downturn due to the COVID-19
pandemic's effect on its users' ability to attend its theatres. AMC
began to dramatically rise when retail investors began buying the
stock in January 2021.
This rise was due in part to the efforts of individual investors
using Robinhood's App, purchasing a stock they believed had value,
in addition to efforts from retail investors originating online to
combat the actions of hedge funds to short the stock, who viewed
AMC as a prime "short" target, or a stock to bet against to profit
from as it fell. Various hedge funds had begun to "short" AMC, or
borrowing and subsequently selling a stock at a current price, and
promising to buy the stock back from the lender at a later date,
with the goal that the value of the stock falls, giving the short
18 seller the difference between the initial value of the stock and
the lower, current value of the stock in profit.
This led to a later phenomenon known as a "short squeeze," where a
stock that had been heavily shorted quickly jumps significantly
higher, placing short sellers in great distress as they began to
owe immense sums of money. This short squeeze benefited the
aforementioned retail investors, who were reaping the gains of a
stock shooting up at an incredible rate. However, the firms that
were shorting AMC were soon in debt for billions as the stock
continued to grow immensely along with their liability. Robinhood's
actions harmed Plaintiffs and the Class, says the complaint.
Robinhood is an online brokerage firm on which many retail
investors invest, given its consumer-friendly label as a firm that
allows open trading and does not charge fees.[BN]
The Plaintiff is represented by:
William M. Audet, Esq.
David Ling Y. Kuang, Esq.
Kurt D. Kessler, Esq.
AUDET & PARTNERS, LLP
711 Van Ness Avenue, Suite 500
San Francisco, CA 94102-3275
Telephone: (415) 568-2555
Facsimile: (415) 568-2556
E-mail: waudet@audetlaw.com
lkuang@audetlaw.com
kkessler@audetlaw.com
- and -
Robert L. Lieff, Esq.
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: rlieff@lchb.com
- and -
Jack Russo, Esq.
COMPUTER LAW GROUP, LLP
401 Florence Street
Palo Alto, CA 94301
Telephone: (650) 327-9800
Facsimile: (650) 618-1863
E-mail: jrusso@computerlaw.com
ROBINHOOD MARKETS: Restricts Buying Shares of GME, Schaff Alleges
-----------------------------------------------------------------
AUSTIN SCHAFF, on behalf of himself and on behalf of all others
similarly situated v. ROBINHOOD MARKETS, INC., ROBINHOOD FINANCIAL
LLC, and ROBINHOOD SECURITIES, LLC., Case No. 8:21-cv-00216-TPB-CPT
(M.D. Fla., Jan. 28, 2021) is a class action complaint alleging
that the Defendants breached their duty to exercise reasonable care
in safeguarding and protecting the Plaintiff's and other class
members' assets from market manipulation by virtue of halting all
buying or trading of GME on its app on January 28, 2021.
On January 28, 2021, Robinhood allegedly banned "buying" shares of
GameStop Corp ("GME"). The Plaintiff owned thousands of dollars'
worth of GME stock and options. Robinhood's alleged banning of
trading shares of GME caused the GME stock price to drop
significantly. Robinhood also cancelled millions of dollars in
orders, causing further harm to the stock, the suit says.
The Plaintiff suffered a tangible injury in the form of economic
loss due to Robinhood's banning of trading shares of GME. As a
result of these violations, the Plaintiff seeks statutory
penalties, injunctive relief, attorneys' fees, costs and expenses,
and their appropriate relief.
Plaintiff Schaff is an adult citizen of Florida and resides in
Hillsborough County, Florida. Plaintiff Austin Schaff acquired the
Robinhood mobile phone application and utilized the same to
acquire, trade and hold securities in Florida.
Defendant Robinhood Markets, Inc. is a financial services holding
company incorporated in Delaware, whose subsidiaries provide
financial and investment services via an internet/cloud-based
platform that is also available on mobile phones. Its subsidiary,
the Defendant Robinhood Financial LLC, is a full service securities
firm engaged in the retail sale of securities and various other
financial products. Its subsidiary, the Defendant Robinhood
Securities, LLC, is a full service securities firm engaged in the
retail sale of securities and various other financial
products.[BN]
The Plaintiff is represented by:
Brandon J. Hill, Esq.
LUIS A. CABASSA, P.A.
WENZEL FENTON CABASSA , P.A.
1110 North Florida Ave., Suite 300
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: 813-229-8712
E-mail: bhill@wfclaw.com
lcabassa@wfclaw.com
gnichols@wfclaw.com
- and -
Chad A. Justice
JUSTICE FOR JUSTICE LLC
1205 N Franklin St., Suite 326
Tampa, FL 33602
Direct No. (813) 566-0550
Facsimile: (813) 566-0770
E-mail: chad@getjusticeforjustice.com
ROBINHOOD MARKETS: Saliba Sues Over Refusal to Trade GME Stocks
---------------------------------------------------------------
Jean-Paul Saliba, individually and on behalf of other persons
similarly situated v. ROBINHOOD MARKETS, INC.; ROBINHOOD FINANCIAL,
LLC; FINANCIAL SECURITIES, LLC; ROBINHOOD CRYPTO, LLC and DOES
1-100, Case No. 3:21-cv-00871 (N.D. Cal., Feb. 3, 2021) seeks
damages for the conduct of the Defendants that violated federal
laws by refusing to allow its users to trade GME stocks for no
reason which caused damages to the Plaintiff and the Class
members.
According to the complaint, as or about January 11 and 12, 2021,
the value in stocks of the company, GameStop with a ticker symbol
of GME, increased significantly. Robinhood had allowed its users to
trade GME open market. On January 27 or 28 2021, Robinhood disabled
and completely restricted the trading of GME. This was done without
Plaintiff and the putative class's consent. In Fact, Robinhood
allegedly went as far to pulling GME from the Robinhood's platform
so no consumer could trade or even find GME on Robinhood.
On January 28, 2021, Plaintiff attempted to sell his shares of GME
but could not do so due to Robinhood's alleged improper conduct.
Robinhood's conduct left the Plaintiff with no opportunity to lower
their average costs, no opportunity (if GME's price went up) to
receive gains or no opportunity (if GME's price went down) to short
GME. In other words, instead of acting simply as a conduit for
trading, Robinhood acted as a regulator and refused to allow its
users to trade GME for no reason, thereby precluding its consumers
from using Robinhood's services, says the complaint.
The Plaintiff is a Texas resident residing within the Dallas,
Texas.
Robinhood Financial is an online brokerage firm that provides an
online platform for consumers to buy and sell securities.[BN]
The Plaintiff is represented by:
Evan Selik, Esq.
Christine Zaouk, Esq.
McCATHERN LLP
523 West Sixth Street, Suite 830
Los Angeles, California 90014
Phone: (213) 225-6150
Fax: (213) 225-6151
Email: eselik@mccathernlaw.com
czaouk@mccathernlaw.com
ROSEBOX LLC: Hedges Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Rosebox LLC. The case
is styled as Donna Hedges, on behalf of herself and all other
persons similarly situated v. Rosebox LLC, Case No. 1:21-cv-00974
(S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violations of the Americans
with Disabilities Act.
Rosebox -- https://roseboxnyc.com/ -- is located in New York and is
an organization primarily operating in the flowers, plants and
bulbs business.[BN]
The Plaintiff is represented by:
Justin A. Zeller, Esq.
THE LAW OFFICE OF JUSTIN ALEXANDER ZELLER, P.C.
277 Broadway, Suite 408
New York, NY 10007
Phone: (212) 229-2249
Fax: (212) 229-2246
Email: Jazeller@zellerlegal.com
ROUGH TRADE: Hedges Sues Over Blind-Inaccessible Website
--------------------------------------------------------
Donna Hedges, for herself and on behalf of all other persons
similarly situated v. ROUGH TRADE RETAIL, LLC,, Case No.
1:21-cv-00946-LGS (S.D.N.Y., Feb. 3, 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 alleged 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.roughtrade.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 her
computer.
The Defendant is a book and record store that operates its book and
record store as well as the Website to the public.[BN]
The Plaintiff is represented by:
Justin A. Zeller, Esq.
John M. Gurrieri, Esq.
LAW OFFICES OF JUSTIN A. ZELLER, P.C.
277 Broadway, Suite 408
New York, N.Y. 10007-2036
Phone: (212) 229-2249
Facsimile: (212) 229-2246
Email: jazeller@zellerlegal.com
jmgurrieri@zellerlegal.com
- and -
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: nyjg@aol.com
danalgottlieb@aol.com
ROYAL SEA CRUISES: Bid to Dismiss in McCurley TCPA Suit Denied
--------------------------------------------------------------
The U.S. District Court for the Southern District of California
denied the Defendant's motion to dismiss for lack of subject matter
jurisdiction in the lawsuit styled JOHN McCURLEY and DAN DEFOREST,
individually and on behalf of all others similarly situated,
Plaintiffs v. ROYAL SEA CRUISES, INC., Defendant, Case No.
17-cv-00986-BAS-AGS (S.D. Cal.).
The Defendant brings the Motion to Dismiss for Lack of Subject
Matter Jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure, arguing that the recent case of Barr v.
American Ass'n of Political Consultants, Inc., 591 U.S. _, 140
S.Ct. 2335 (July 2, 2020) ("AAPC") renders the Telephone Consumer
Protection Act void between the years of 2015 and July 2020, when
AAPC was decided.
According to the Defendant's analysis, the TCPA should be held in
force and effect from 1991 until 2015 -- when an unconstitutional
amendment to the Act was passed -- be declared void in its entirety
from 2015 until AAPC was decided in July 2020, and then return to
full force and effect with the offending 2015 amendment severed,
effective July 2020.
Because the certified class in the case involves those who received
telephone calls in violation of the TCPA between November 2016 and
December 2017, the Defendant argues the entire case must be
dismissed since there was no valid TCPA at the time the class was
receiving telephone calls. The Plaintiffs oppose and Defendant
replies. The Court heard argument on the issue on January 27,
2021.
The Plaintiffs filed a Consolidated Class Action Complaint against
Royal Seas Cruises, Inc. alleging violations of the TCPA and
California's Invasion of Privacy Act. With respect to the TCPA, the
Court certified a class of:
All persons within the United States who received a
telephone call (1) from Prospects, DM Inc. on behalf of
Royal Seas Cruises Inc. (2) on said Class Member's cellular
telephone (3) made through the use of any automatic
telephone dialing system or an artificial or prerecorded
voice, (4) between November 2016 and December 2017, (5)
where such calls were placed for the purpose of marketing,
(6) to non-customers of Royal Seas Cruises, Inc. at the time
of the calls, (7) whose cellular telephone number is
associated in Prospects DM's records with either
diabeteshealth.info or www.yourautohealthlifeinsurance.com,
and (8) whose call resulted in a transfer to Royal Seas
Cruises, Inc.
In AAPC, the Supreme Court addressed the 2015 amendment to the
TCPA, which provided an exception for robocalls made to collect
debts owed to or guaranteed by the Federal Government, including
robocalls made to collect many student loan and mortgage debts.
Justice Brett Kavanaugh, joined by the Chief Justice John Roberts
and Justice Samuel Alito, concluded in Parts I and II that this
amendment was unconstitutional because it favored debt-collection
speech over political or other speech in violation of the First
Amendment. In Part III, these three Justices concluded that the
2015 amendment should be severed leaving the bulk of the TCPA
intact.
District Judge Cynthia Bashant opines that this case does not
involve the collection of government debt; therefore, according to
the opinion of Justice Kavanaugh, AAPC does not negate the
Defendant's liability and the Defendant's motion to dismiss must
fail. The Defendant instead argues that Justice Kavanaugh's opinion
is mere dicta and should be ignored by this Court. The Court
disagrees.
In the case, one single rationale explains the result joined by
seven of the Justices: All seven agree that the 2015 amendment
should be severed and the liability of parties making robocalls who
were not collecting a government debt is not negated, Judge Bashant
opines. In fact, three of those seven would not have held the 2015
amendment to be unconstitutional at all, and they certainly agreed
the Defendant could be held liable. Therefore, the Court finds
Justice Kavanaugh's statement is not dicta and must be followed by
this Court.
Lest there is question, the Ninth Circuit ruling in Duguid v.
Facebook, 926 F.3d 1146 (9th Cir. 2019), agreed that the debt
collection amendment was unconstitutional but severed the amendment
and remanded the case to the district court for further
proceedings.
In reaching today's decision, the Court disagrees with the district
court decisions in Lindenbaum v. Realgy, LLC, _ F. Supp. 3d _, 2020
WL 6361915 (N.D. Ohio Oct. 29, 2020) and Creasy v. Charter Comm'ns
Inc., No. CV 20-1199, 2020 WL 5761117 (E.D. La. Sept. 28, 2020).
Both cases ignore the pronouncements in the plurality decision as
articulated by Justice Kavanaugh and joined by six other justices
and adopt the position of the two-justice dissent. Lindenbaum
criticizes the Supreme Court for waving a magic wand to make the
constitutional violation disappear. Creasy concludes that Justice
Gorsuch's dissent is "the better argument of law and logic."
Whatever the Court may think of the Supreme Court's logic or
conclusions, it does not dismiss such conclusions so lightly, Judge
Bashant holds. Even if it was only dicta, as argued by the
Defendant, the district court is not at liberty to completely
ignore this pronouncement.
Ultimately, the Court concludes that Justice Kavanaugh's statement
that the AAPC decision "does not negate the liability of parties
who made robocalls covered by the robocall restriction" if they
were not made for the purposes of federal debt collection is not
dicta because it was joined by six other justices. However, even if
it was dicta, the Court finds it signals the intent of the Supreme
Court and what it would hold in future cases and, as such, may not
be cavalierly dismissed by a district court.
Judge Bashant concludes that the case involves allegations of the
use of an automatic telephone dialing system and a prerecorded
voice to sell cruise packages, not to collect a federal government
debt. Justice Kavanaugh's statement in AAPC makes it clear that the
TCPA still applies to this conduct even though it occurred between
2015 and 2020. Therefore, the Defendant's Motion to Dismiss for
Lack of Subject Matter Jurisdiction is denied.
A full-text copy of the Court's Order dated Jan. 28, 2021, is
available at https://tinyurl.com/2u5oe55e from Leagle.com.
ROYAL SEA CRUISES: Wins Bid for Summary Judgment in McCurley Suit
-----------------------------------------------------------------
In the lawsuit captioned JOHN McCURLEY and DAN DEFOREST,
individually and on behalf of all others similarly situated,
Plaintiffs v. ROYAL SEA CRUISES, INC., Defendant, Case No.
17-cv-00986-BAS-AGS (S.D. Cal.), the U.S. District Court for the
Southern District of California issued an order granting the
Defendant's amended motion for summary judgment; and denying the
Plaintiffs' motion for summary judgment.
The Plaintiffs bring a Motion for Summary Judgment, which the
Defendant opposed, and Plaintiffs replied. The Defendant brings an
Amended Motion for Summary Judgment, which the Plaintiffs opposed
and Defendant replied. The Court held oral argument on both motions
on January 27, 2021.
The Plaintiffs filed a Consolidated Class Action Complaint against
Royal Seas Cruises, Inc. alleging violations of the Telephone
Consumer Protection Act ("TCPA"), 47 U.S.C. Sections, et seq. and
California's Invasion of Privacy Act ("CIPA"), Cal. Penal Code
Sections 630, et seq.
Generally, Royal Seas sells vacation packages by calling potential
leads. In November 2016, Prospect and Royal Seas entered into an
agreement under which Royal Seas purchased leads from Prospect for
possible purchasers of the Royal Seas vacation packages. The
contract between the two parties delineated that Royal Seas would
only pay for leads that were "generated in a TCPA-compliant
manner."
The Court certified a class with respect to the TCPA only of:
All persons within the United States who received a
telephone call (1) from Prospects, DM, Inc. on behalf of
Royal Seas Cruises, Inc. (2) on said Class Member's cellular
telephone (3) made through the use of any automatic
telephone dialing system or an artificial or prerecorded
voice, (4) between November 2016 and December 2017, (5)
where such calls were placed for the purpose of marketing,
(6) to non-customers of Royal Seas Cruises, Inc. at the time
of the calls, and (7) whose cellular telephone number is
associated in Prospects DM's records with either
diabeteshealth.info or www.yourautohealthlifeinsurance.com.
The Court also certified a Transfer Subclass of "all members of the
Class whose call resulted in a transfer to Royal Seas Cruises,
Inc." At the Plaintiffs' request, the Court later decertified the
class in part and allowed the Plaintiffs to proceed solely on the
Transfer Subclass.
The Motions for Summary Judgment address three of the same issues:
(1) whether proof exists that the calls were made using an
automatic telephone dialing system or prerecorded voice; (2)
whether Royal Seas Cruises Inc. ("Royal Seas") can be held
vicariously liable for the calls placed by Prospect DM; and (3)
whether Royal Seas has any evidence to support its defense that the
calls were made with the express consent of all class members.
The Defendant's Motion for Summary Judgment also challenges the
TCPA as a violation of the constitutional right to free speech and
moves for summary judgment on the CIPA claims. These last two
arguments can be dispensed with quickly, District Judge Cynthia
Bashant states. Since the Plaintiffs do not respond to the
Defendant's Motion for Summary Judgment on the CIPA claims, the
Court concludes the Plaintiffs have waived this claim and grants
the Defendant's Motion for Summary Judgment on this ground.
On the other hand, the Ninth Circuit has clearly held that the TCPA
does not violate the First Amendment. Gomez v. Campbell-Ewald Co.,
768 F.3d 871, 876 (9th Cir. 2014) (citing Moser v. FCC, 46 F.3d
970, 973-4 (9th Cir. 1995)), aff'd 577 U.S. 153 (2016) as revised
(Feb. 9, 2016). Therefore, the Court denies the Defendant's Motion
on this ground.
According to the Order, it is undisputed that none of the calls at
issue were placed by Royal Seas. For Royal Seas to be liable for
the calls placed by Prospect, Plaintiff must show that there is an
agency relationship between Prospect and Royal Seas and that
Prospect had actual authority, apparent authority, or ratified the
calls made in alleged violation of the TCPA.
Judge Bashant opines that any claim of actual authority in the case
is belied by the express language in the contract between Royal
Seas and Prospect requiring that any leads be from individuals, who
had consented to be called, citing Jones v. Royal Admin. Svcs.,
Inc., 887 F.3d 443, 446 (9th Cir. 2018). The Judge notes, the only
arguable manifestation by Royal Seas is Royal Seas' contract with
Prospect allowing it to approve the prerecorded scripts used by
Prospect. This demonstrates Royal Seas' knowledge that prerecorded
scripts would be used, but it provides no evidence that Royal Seas
had any reason to believe the individuals Prospect called with
those prerecorded scripts had not agreed to this contact by
entering their names in a third-party website. These are the
consenting callers Prospect agreed by contract to transfer to Royal
Seas, and these are the consenting callers Royal Seas had every
reason to believe were being transferred to them.
The Plaintiffs' main argument is that Royal Seas should be held
liable under the agency theory of "ratification." Ratification is
the affirmance of a prior act done by another, whereby the act is
given effect as if done by an agent acting with actual authority.
There is no evidence that Royal Seas had actual knowledge that the
calls Prospect made were placed without actually receiving an
opt-in from the person being called, Judge Bashant finds. In fact,
Prospect and the third-party websites maintain to this day -- not
only to Royal Seas but also to the Court -- that all calls were
made only after receiving consent from the person being called.
The Plaintiffs point to no evidence that Royal Seas had knowledge
of any TCPA violation, Judge Bashant notes. Instead, the Plaintiffs
argue that there is evidence that Royal Seas willfully ignored the
violations because it had knowledge of facts that would have led a
reasonable entity to investigate further.
What is noticeably missing from the Plaintiffs' argument is that
Royal Seas ever received information from any of the individuals
who were transferred that they had not consented to be called,
according to Judge Bashant. Simply the lack of verification is
insufficient. Royal Seas specifically contracted with Prospect for
leads that had consented to be called. Royal Seas also looked at a
sampling of the websites to make sure the opt-in language was
sufficient. In the absence of any evidence that this opt-in
language was not being used or that Prospect was not conducting
itself as it contracted to do, the Plaintiffs simply cannot prove
that Royal Seas ratified any violation by willful ignorance, Judge
Bashant concludes.
Additionally, the fact that numerous cruise companies have been
sued for TCPA violations explains why Royal Seas was careful to
include language requiring adherence to the TCPA in its contract
with Prospect and why it required Prospect to show it how the
opt-in language would look so its attorneys could approve. This
alone does not demonstrate that Royal Seas was on notice that
Prospect was violating the law, Judge Bashant holds. The Judge adds
that the fact that a small number of those contacted actually
bought cruises is not helpful. There are any number of reasons why
someone who agreed to be contacted about a cruise might ultimately
decide not to purchase. In the absence of evidence that Royal Seas
received any complaints about the calls, it is not reasonable to
conclude that Royal Seas had some notice that the reason for the
low rate of conversion was because these people had not consented
to be called.
Since the Plaintiffs provide no evidence to support their theory of
vicarious liability, the Court grants Royal Seas' Motion for
Summary Judgment on this ground.
Because the Court finds no vicarious liability for Royal Seas, this
issue on consent to be called is moot. However, the Court notes
that the Declarations of Plaintiffs McCurley and Deforest
explicitly stating that they did not consent to be called, nor had
ever visited the websites at issue, raise an issue of fact for the
jury to determine, at least with respect to the named Plaintiffs.
Because the calls at issue were placed by a third-party caller at
the behest of Prospect, not Royal Seas, and because Royal Seas has
no evidence that would support its theory that Royal Seas is
vicariously liable for the calls placed by Prospect, the Court
grants the Defendant's Amended Motion for Summary Judgment and
denies the Plaintiff's Motion for Summary Judgment. In light of
this decision, the Court finds the remaining motions (ECF Nos. 151,
159, 163 and 164) are all moot. The clerk is directed to enter a
judgment in favor of the Defendant and against the Plaintiffs and
to close the case.
A full-text copy of the Court's Order dated Jan. 28, 2021, is
available at https://tinyurl.com/yr8xqed9 from Leagle.com.
RUG DOCTOR: Stanley Sues Over Blind-Inaccessible Cleaning Kiosks
----------------------------------------------------------------
ZACHARY STANLEY, individually and on behalf of all others similarly
situated v. RUG DOCTOR LLC, Case No. 2:21-cv-02029-JPM-atc (W.D.
Tenn., Jan. 13, 2021) arises from the Defendant's alleged
violations of the Americans with Disabilities Act and its
implementing regulations for failing to design, construct, own,
operate and/or control rug cleaning machine rental kiosks
throughout the United States that are fully accessible to, and
independently usable by, blind people including the Plaintiff.
The complaint alleges that the kiosks are not fully accessible and
independently usable by the blind and visually impaired because
they have touch screen surfaces which rely upon visual interfaces
that are not discernible to individuals who are blind or visually
impaired.
The Plaintiff seeks a declaration that the kiosks violate federal
law as described and an injunction requiring Defendant to update or
replace all kiosks that are in violation of the mandatory
requirements of the ADA so that they are fully accessible to, and
independently usable by, blind or visually impaired individuals.
RUG Doctor, LLC provides household appliances. The Company offers
buying and rental of cleaning systems and solutions, as well as
support and maintenance services. RUG Doctor serves customers
worldwide. [BN]
The Plaintiff is represented by:
J. Luke Sanderson, Esq.
WAMPLER, CARROLL, WILSON & SANDERSON, P.C.
44 N. 2nd Street, Suite 500-502
Memphis, TN 38103
Telephone: (901) 523-1844
E-mail: luke@wcwslaw.com
RUSHMORE SERVICE: Pistone Files FDCPA Suit in D. New Jersey
-----------------------------------------------------------
A class action lawsuit has been filed against Rushmore Service
Center, LLC. The case is captioned as Renee Pistone, on behalf of
herself and all others similarly situated v. Rushmore Service
Center, LLC, Case No. 3:21-cv-00698-BRM-LHG (D.N.J., Jan. 13,
2021).
The case is brought over alleged violation of the Fair Debt
Collection Practices Act and is assigned to Judge Brian R.
Martinotti.
Rushmore Service Center, LLC is a nationally-licensed debt
collection agency located in Sioux Falls, South Dakota. [BN]
The Plaintiff is represented by:
Lawrence C. Hersh, Esq.
17 Sylvan Street, Suite 102B
Rutherford, NJ 07070
Telephone: (201) 507-6300
E-mail: lh@hershlegal.com
SAGGIO RESTAURANT: Resto Staff Seeks Unpaid Overtime/Minimum Wages
------------------------------------------------------------------
Neptali Peralta and Edwin Cabrera Patina on behalf of themselves,
Plaintiffs v. Saggio Restaurant, Inc., The Uptown Garrison, Inc.,
and Kalkin Narvilas and Pedro Narvilas, jointly and severally,
Defendants, Case No. 21-cv-00606, (S.D. N.Y., January 21, 2021),
seeks to recover unpaid minimum wage, overtime and statutory
penalties for notice and recordkeeping violations under the Fair
Labor Standards Act and New York labor laws.
Defendants own Saggio Restaurant, Inc. (doing business as "Saggio
Restaurant") and The Uptown Garrison, Inc. (doing business as "The
Uptown Garrison"), both in New York. Peralta was employed as a cook
by Defendants from on or about March 3, 2016, to on or about June
13, 2018, at Defendant's Saggio location while Patina was employed
as a driver and busboy from on or about May 27, 2016, to on or
about the first week of March 2020. [BN]
Plaintiff is represented by:
Ria Julien, Esq.
MIRER MAZZOCCHI & JULIEN, PLLC
One Whitehall Street, 16 Floor
New York, NY 10004
Tel: (212) 231-2235
rjulien@mmsjlaw.com
SAIKABIR HOSPITALITY: Website Lacks Accessibility Info, Lammey Says
-------------------------------------------------------------------
Dwain Lammey v. Saikabir Hospitality LLC, a California Limited
Liability Company, and Does 1-10, Case No.
30-2021-01178711-CU-CR-CJC (Cal. Super., Orange County, Jan. 14,
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. Lammey is a California resident with physical disabilities who
is substantially limited in his ability to walk. He is a
quadriplegic and uses a wheelchair for mobility.
Saikabir Hospitality LLC, a California Limited Liability Company,
owns and operates the Travelodge by Wyndham Fullerton in
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
SARASOTA DOCTORS: Florida Court Grants Summary Judgment Against Day
-------------------------------------------------------------------
The U.S. District Court for the Middle District of Florida grants
the Defendant's motion for summary judgment in the lawsuit styled
DAVID DAY, Plaintiff v. SARASOTA DOCTORS HOSPITAL, INC. d/b/a
DOCTORS HOSPITAL OF SARASOTA, Defendant, Case No.
8:19-cv-1522-VMC-TGW (M.D. Fla.).
The matter comes before the Court upon consideration of Plaintiff
Day's Motion for Summary Judgment and Defendant Sarasota's Motion
for Summary Judgment, both filed on November 13, 2020. The parties
have responded and replied to each Motion. For the reasons set
forth in the Order, Doctors Hospital's Motion is granted, and Day's
Motion is denied.
Following a motor vehicle accident on February 21, 2017, Day
received emergency medical treatment at Doctors Hospital. Upon
arrival at the Hospital, Day signed a "Conditions of Admission and
Consent for Outpatient Care" form ("COA"), which included
provisions stipulating that Day agreed to pay the rates listed in
Doctors Hospital's chargemaster, and also noting that the Hospital
accepted discounted rates from certain insured and uninsured
patients. Before leaving the Hospital on February 21, 2017, Day
paid $80 toward his medical treatment.
At the time of treatment, Day's only applicable form of insurance
was a personal injury protection policy ("PIP" insurance)--also
known as no-fault insurance--issued by Progressive. Florida law
requires all motor vehicle owners to purchase PIP insurance, "which
provides a maximum of $10,000 in medical coverage for injured
drivers." Fla. Stat. Section 627.736(1) (2020). Under the PIP
statute, hospitals and other healthcare providers must charge PIP
insurers and injured parties "only a reasonable amount."
On February 25, 2017, Doctors Hospital submitted its claim for
reimbursement for Day's medical treatment to Progressive. The claim
form included the Hospital's chargemaster rates: "$1,471 for an
X-Ray of [Day's] shoulder; $1,621 for a Level Three emergency room
visit; and $18 for dispensing [three pills of 800 milligrams of]
ibuprofen, for a total of $3,110." Progressive then issued an
Explanation of Benefits ("EOB") to Doctors Hospital, providing for
an allowable amount of $2,332.50, with the "allowable amount"
representing the combined amount to be paid by the insurance
company and the patient. The patient's responsibility can include a
co-payment and/or deductible.
This sum represents seventy-five percent of the $3,110 charged by
Doctors Hospital. Of that $2,332.50, Progressive determined that
Day owed the Hospital $1,246.50, which represented $975 from his
policy's $1,000 deductible and a $271.50 co-payment. Based on
Progressive's calculations, Doctors Hospital sent Day a bill for
$1,146.50, reflecting his $1,246.50 responsibility, minus the $80
he paid on the day of treatment and a $20 prompt-pay discount.
Presently, Day has not paid this $1,146.50 balance.
During discovery, Doctors Hospital provided Day with a number of
its confidential contracts with private health insurers. Doctors
Hospital's expert, Michael Heil, who has "[twenty-five] years'
experience in management consulting for hospitals, health systems,
medical groups, health plans, and emergency medical services
agencies," then calculated what a patient would have been expected
to pay Doctors Hospital for the services Day received if the
patient were covered by those other insurers.
The first relevant contract is one between Doctors Hospital and an
insurer for certain outpatient services. (Id.). Under this
contract, a patient would have paid $965 for the same services Day
received. The second and third relevant contracts were between
Doctors Hospital and two insurers for bundled services. Insurers
and hospitals often contract with each other based on bundles of
services, rather than on a line-by-line basis. With respect to
those two contracts, a covered patient would have paid $2,946 under
the second, and $2,070 under the third.
Day initiated this action in state court on December 1, 2017.
Following the filing of an amended complaint, which included a
putative class action, Doctors Hospital removed the case to this
Court on June 24, 2019. On July 23, 2020, the Court denied Day's
motion to certify class. Now, four claims remain against Doctors
Hospital, including claims for violations of the Florida Deceptive
Unfair Trade Practices Act ("FDUTPA") (Counts I and II), breach of
contract (Count III), and declaratory relief (Count VI). The
parties both seek entry of summary judgment in their favor.
In Count I, Day alleges that Doctors Hospital violated FDUTPA by
actively, willfully, and deceptively representing that the prices
listed on the chargemaster are the customary charges, rather than
an artificially inflated list that only applies to a certain class
of people, by publishing it on their website and in incorporating
it into the COA. Day avers that he relied on this deceptive
representation when he signed the COA and paid the Hospital's bills
for PIP covered emergency services, thereby causing him to become
obligated to pay excessive and artificially inflated medical bills
or become obligated to pay other health care providers
out-of-pocket because the Hospital's inflated rates prematurely
exhausted his PIP coverage.
In its Motion, Doctors Hospital argues that it is entitled to
judgment in its favor on Count I for the following reasons: (1)
"Day was never misled" since "the undisputed evidence shows that
[he] never visited the Hospital's website, nor did he review the
payment provisions" in the COA and (2) the FDUTPA claim is
precluded by a statutory safe harbor.
Here, Day alleges that Doctors Hospital deceptively represented
that the prices listed in its chargemaster, which were incorporated
in the COA, were the customary charges, insofar as those numbers
would be used to determine a PIP-insured patient's payment
obligations. However, District Judge Virginia M. Hernandez
Covington notes, the COA -- which is provided to Doctors Hospital
patients, including Day -- features no such provision. To the
contrary, the COA explicitly states that both insured and uninsured
patients are expected to pay rates other than those listed in the
chargemaster. Therefore, with the evidence provided, no reasonable
consumer would understand the COA to stand for the proposition that
all Doctors Hospital patients pay the same chargemaster rates or
that such rates necessarily constitute "customary charges."
Because no reasonable consumer could be deceived by the Hospital's
conduct or the COA, under the circumstances alleged in Count I, the
Hospital's Motion is granted as to this requested relief, Judge
Covington holds.
In Count II, Day alleges a second violation of FDUTPA, arguing that
Doctors Hospital's billing methods constitute an unfair practice.
Day posits that Doctors Hospital charged exorbitant and
unreasonable rates for PIP-covered healthcare services in violation
of the PIP statute, which prohibits [hospitals] from charging more
than a 'reasonable amount' for emergency medical services.
In its Motion, Doctors Hospital argues that it is entitled to
judgment in its favor on Count II for the following reasons: (1)
Day "has failed to adduce any evidence that his charges were
unreasonable," and (2) the FDUTPA claim is precluded by a statutory
safe harbor. Day responds that the evidence proves that Doctors
Hospital's charges are inherently unreasonable and again argues
that the safe harbor is inapplicable.
Because Count II is primarily based on the premise that Doctors
Hospital charged him an unreasonable rate for emergency medical
care, the Court first turns to this issue. Under Florida law, "no
single factor can be used to determine the reasonableness of [a
hospital's] charges," Judge Covington finds, quoting Colomar v.
Mercy Hosp., Inc., 461 F.Supp.2d 1265, 1269 (S.D. Fla. 2006)
(Colomar I). Instead, "several non-exclusive factors are relevant
to the inquiry," including: "(1) an analysis of the relevant market
for hospital services (including the rates charged by other
similarly situated hospitals for similar services); (2) the usual
and customary rate the hospital charges and receives for its
hospital services; and (3) the hospital's internal cost
structure."
Doctors Hospital charged Day $1,471 for a left-shoulder x-ray and
$1,621 for a level three emergency visit. According to Day, these
charges are two to three times more than similar providers in the
community. Doctors Hospital counters that the Court cannot consider
these prices, and that Day offers no evidence as to market
analysis, because these prices are unauthenticated. Additionally,
the Hospital posits that the prices constitute inadmissible hearsay
under Federal Rule of Evidence 801 and Federal Rule of Civil
Procedure 56(c)(2). Day responds that these price lists are
admissible as they fall under the "market reports" hearsay
exception under Federal Rule of Evidence 803(17).
Assuming, however, that this evidence could be rendered admissible,
the Court echoes some of the Hospital's concerns regarding its
helpfulness. First, the prices derive from current price lists,
whereas Day's treatment occurred in 2017. In theory, the other
hospitals' fees for these services could have been higher in 2017,
Judge Covington notes. Additionally, it may very well be true that
these hospitals have different costs, such that they are able to
charge less for these services. Indeed, Day provides no evidence
that the other hospitals are similarly situated to Doctors
Hospital, other than their location. And, it is also possible that
these billing codes include different services--such that a "level
three emergency visit" would include different treatments at
Doctors Hospital and at Sarasota Memorial.
Still, if this evidence could be considered, and viewing the
evidence in the light most favorable to Day, a reasonable jury
could find that the differences between these hospitals' prices
helps support an inference that Doctors Hospital's charges are
unreasonable, Judge Covington holds, citing Colomar I, 461 F. Supp.
2d at 1270.
Judge Covington also opines, among other things, that because
several insurance companies are expected to pay similar rates to
that of Day for the same or similar services, the Court finds that
no reasonable jury could conclude that that the Hospital's rates
are unreasonable by virtue of differential pricing. Indeed, that
argument is negated by the evidence presented. Accordingly, this
factor favors the relief requested in Doctors Hospital's Motion.
Lastly, the Court considers the Hospital's internal cost structure.
Day has proffered no evidence of the Hospital's cost structure that
might lend to a conclusion that its charges are unreasonable.
Indeed, Day only argues in its own Motion that Doctors Hospital
"utilizes an across-the-board rate increase that only considers
specific costs with regard to supplies and pharmaceuticals." But
the Court fails to see how across-the-board increases are
unreasonable, giving that hospitals should factor the increase of
expenses, such as salary and overhead increases, in calculating
service charges. This factor favors Doctors Hospital. Accordingly,
Doctors Hospital's Motion is granted as to Count II.
In Count III, Day alleges that Doctors Hospital breached the COA
"by charging unreasonable amounts for PIP-covered" services.
Because the Court has already determined that, even making all
reasonable inferences in Day's favor, he has failed to provide
sufficient evidence demonstrating that the Hospital's charges are
unreasonable, Day's breach of contract claim fails as well.
Accordingly, Doctors Hospital's Motion is granted as to Count III.
In Count VI, Day seeks a declaration that Doctors Hospital's
charges are unreasonable and that he, therefore, is not responsible
for the charges he has not yet paid. Again, because the Court has
found that, taking the evidence provided, the Hospital's charges
are not unreasonable, Day's claim for declaratory relief fails.
Accordingly, Doctors Hospital's Motion is granted as to Count VI.
In Day's Motion, he seeks an entry of judgment in his favor on
Counts I, II, III, and VI, of the second amended complaint. Because
the Court has already found it proper to enter judgment in Doctors
Hospital's favor on all of those remaining counts, Day's Motion is
denied.
The Court finds summary judgment for Doctors Hospital appropriate
as to Count I because Day has failed to show that a reasonable
consumer would be deceived by the Hospital's conduct. Summary
judgment in Doctors Hospital's favor is proper as to Counts II,
III, and VI because Day has failed to carry his burden of
demonstrating that the Hospital's rates are unreasonable. Indeed,
the evidence provided points to the contrary.
Accordingly, Defendant Sarasota's Motion for Summary Judgment is
granted. Plaintiff Day's Motion for Summary Judgment is denied. The
Clerk is directed to enter judgment in favor of Doctors Hospital
and against Day. Thereafter, the Clerk is directed to close the
case.
A full-text copy of the Court's Order dated Jan. 28, 2021, is
available at https://tinyurl.com/bya1dq6x from Leagle.com.
SCOTT SEMPLE: Class Certification Bid Filing Date Set for April 23
------------------------------------------------------------------
In the class action lawsuit captioned as Vega, v. Semple, Case No.
3:17-cv-00107-JBA (D. Conn.), the Hon. Judge Janet Bond Arterton
entered a scheduling order as follows:
1. The Plaintiff's Amended Complaint shall be filed and
served by Feb. 23, 2021.
2. The parties' 26(f) Planning Report shall be filed by Feb.
23, 2021.
3. The Motion for Class Certification and a Joint Status
Report shall be filed by April 23, 21.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/2LszSQg at no extra charge.[CC]
SCOTTSDALE INSURANCE: Cadecus Sues Over Denied COVID-19 Coverage
----------------------------------------------------------------
CADECUS LLC d/b/a CAFE RACER, individually and on behalf of all
others similarly situated v. SCOTTSDALE INSURANCE COMPANY, Case No.
2:21-cv-00050-BJR (W.D. Wash., Jan. 14, 2021) alleges that the
Defendant has denied and will deny coverage to Plaintiff and all
other similarly situated policyholders based on Defendant's uniform
policy to deny business interruption claims stemming from
government closure orders related to COVID-19.
The Defendant issued one or more "all risk" insurance policies to
Plaintiff, including a businessowner policy and related
endorsements, insuring Plaintiff's property and business, and
providing related coverages.
According to the complaint, the Plaintiff made a claim for
insurance benefits in or about July 2020 after it was forced to
suspend its business and incur extra expense to comply with the
proclamations and orders related to COVID-19. The Plaintiff's claim
for insurance benefits was allegedly denied by the Defendant with
no meaningful investigation of the claim or loss.
The Plaintiff seeks a declaratory judgment declaring that
Plaintiff's and Class members' losses and expenses resulting from
the interruption of their business are covered by the Defendant's
policies and that Defendant is responsible for timely and fully
paying all such claims.
Scottsdale Insurance Company is an insurance company incorporated
in Ohio with its principle place of business in Scottsdale,
Arizona. [BN]
The Plaintiff is represented by:
Amy Williams-Derry, Esq.
Lynn L. Sarko, Esq.
Ian S. Birk, Esq.
Gretchen Freeman Cappio, Esq.
Irene M. Hecht, Esq.
Karin B. Swope, Esq.
Nathan Nanfelt, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Telephone: (206) 623-1900
Facsimile: (206) 623-3384
E-mail: awilliams-derry@kellerrohrback.com
lsarko@kellerrohrback.com
ibirk@kellerrohrback.com
gcappio@kellerrohrback.com
ihecht@kellerrohrback.com
kswope@kellerrohrback.com
nnanfelt@kellerrohrback.com
- and -
Alison Chase, Esq.
KELLER ROHRBACK L.L.P.
801 Garden Street, Suite 301
Santa Barbara, CA 93101
Telephone: (805) 456-1496
Facsimile: (805) 456-1497
E-mail: achase@kellerrohrback.com
SELECTQUOTE INSURANCE: Danford Sues Over Unsolicited Phone Calls
----------------------------------------------------------------
ROBERT DANFORD, on behalf of himself and others similarly situated,
Plaintiff v. SELECTQUOTE INSURANCE SERVICES, INC., Defendant, Case
No. 1:21-cv-20359-KMM (S.D. Fla., January 28, 2021) alleges the
Defendant of violations of the Telephone Consumer Protection Act.
According to the complaint, the Defendant placed numerous
pre-recorded voice calls to the Plaintiff's cellular telephone
number ending in 3247, which was registered on the National Do Not
Call Registry, in an attempt to promote its services. The Defendant
did not obtain the Plaintiff's prior express written consent to
receive such telemarketing calls.
The Plaintiff asserts that his privacy has been violated, and he
was annoyed and harassed by the Defendant's unsolicited
telemarketing calls. The Plaintiff seeks an injunctive relief
prohibiting the Defendant from calling telephone numbers
advertising their goods or services using pre-recorded message in
the future, as well as statutory damages and other relief that the
Court deems just and proper, the suit says.
Selectquote Insurance Service, Inc. provides insurance services.
[BN]
The Plaintiff is represented by:
Avi R. Kaufman, Esq.
Rachel E. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Tel: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
rachel@kaufmanpa.com
SHURE INCORPORATED: Sanchez Files ADA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Shure Incorporated.
The case is styled as Christian Sanchez, on behalf of himself and
all others similarly situated v. Shure Incorporated, Case No.
1:21-cv-00957 (S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violations of the Americans
with Disabilities Act.
Shure Incorporated -- https://www.shure.com/ -- is an American
audio products corporation.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
SIMPLY NOURISH: Court Narrows Claims in Grossman Class Suit
-----------------------------------------------------------
In the class action lawsuit captioned as ALEXA GROSSMAN,
individually and on behalf of others similarly situated, v. SIMPLY
NOURISH PET FOOD COMPANY LLC, PETSMART, INC., Case No.
2:20-cv-01603-KAM-ST (E.D.N.Y.), the Hon. Judge Kiyo A. Matsumoto
entered an order denying in part and granting in part without
prejudice the defendants' motion to dismiss, and with leave to
amend the breach of express warranty claim in conformity with the
Memorandum and Order;
-- The Court grants the defendants' motion to dismiss
plaintiff's claims for injunctive relief, breach of a
written warranty under the MMWA, breach of express
warranty, and unjust enrichment.
-- the Court Denies defendants' motion to dismiss the
plaintiff's claims under GBL sections 349 and 350.
-- The Plaintiffs are granted leave to file an amended
complaint within 14 days of entry of this Memorandum and
Order to amend the breach of express warranty claim in
conformity with the Memorandum and Order.
This putative class action seeks to remedy the defendants' alleged
deceptive and misleading business practices with respect to the
marketing and sales of Simply Nourish's pet foods and treats.
The Plaintiff alleges that defendants "created and/or authorized
the false, misleading and deceptive advertisements, packaging and
labeling for the Products."
The Plaintiff is an individual consumer and resident of the State
of New York. The Plaintiff purchased two Simply Nourish products:
large breed dog foods and Simply Nourish dog treats from PetSmart
in Commack, Long Island during the class period.
The Defendant Simply Nourish Pet Food Company LLC is a corporation
with its principal place of business in Phoenix, Arizona. Simply
Nourish manufactures, markets, advertises and distributes the
Products.
A copy of the Court's memorandum & order dated Jan. 27, 2020 is
available from PacerMonitor.com at https://bit.ly/39O7iSH at no
extra charge.[CC]
SIRIUS XM: Appeal in Flo & Eddie Class Action Stayed
----------------------------------------------------
Sirius XM Holdings Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 2, 2021, for the
quarterly period ended December 31, 2020, that the Ninth Circuit
issued an order granting the stay of appellate proceedings pending
the resolution of a related case against Sirius XM.
On October 2, 2014, Flo & Eddie Inc. filed a class action suit
against Pandora in the federal district court for the Central
District of California.
The complaint alleges a violation of California Civil Code Section
980, unfair competition, misappropriation and conversion in
connection with the public performance of sound recordings recorded
prior to February 15, 1972.
On December 19, 2014, Pandora filed a motion to strike the
complaint pursuant to California's Anti-Strategic Lawsuit Against
Public Participation (Anti-SLAPP) statute, which following denial
of Pandora's motion was appealed to the Ninth Circuit Court of
Appeals.
In March 2017, the Ninth Circuit requested certification to the
California Supreme Court on the substantive legal questions. The
California Supreme Court accepted certification. In May 2019, the
California Supreme Court issued an order dismissing consideration
of the certified questions on the basis that, following the
enactment of the Orrin G. Hatch-Bob Goodlatte Music Modernization
Act, Pub. L. No. 115-264, 132 Stat. 3676 (2018) (the MMA),
resolution of the questions posed by the Ninth Circuit Court of
Appeals was no longer "necessary to . . . settle an important
question of law.
The MMA grants a potential federal preemption defense to the claims
asserted in the aforementioned lawsuits. In July 2019, Pandora took
steps to avail itself of this preemption defense, including making
the required payments under the MMA for certain of its uses of
pre-1972 recordings.
Based on the federal preemption contained in the MMA (along with
other considerations), Pandora asked the Ninth Circuit to order the
dismissal of the Flo & Eddie, Inc. v. Pandora Media, Inc. case.
On October 17, 2019, the Ninth Circuit Court of Appeals issued a
memorandum disposition concluding that the question of whether the
MMA preempts Flo and Eddie's claims challenging Pandora's
performance of pre-1972 recordings "depends on various unanswered
factual questions" and remanded the case to the District Court for
further proceedings.
In October 2020, the District Court denied Pandora's renewed motion
to dismiss the case under California's anti-SLAPP statute, finding
the case no longer qualified for anti-SLAPP due to intervening
changes in the law, and denied Pandora's renewed attempt to end the
case.
Alternatively, the District Court ruled that the preemption defense
likely did not apply to Flo & Eddie's claims, in part because the
District Court believed that the Music Modernization Act did not
apply retroactively.
Pandora promptly appealed the District Court's decision to the
Ninth Circuit, and moved to stay appellate briefing pending the
appeal of a related case against Sirius XM.
On January 13, 2021, the Ninth Circuit issued an order granting the
stay of appellate proceedings pending the resolution of a related
case against Sirius XM.
Sirius XM said, "We believe we have substantial defenses to the
claims asserted in this action, and we intend to defend these
actions vigorously."
Sirius XM Holdings Inc. provides satellite radio services in the
United States. The company broadcasts music, sports, entertainment,
comedy, talk, news, traffic, and weather channels, including
various music genres ranging from rock, pop and hip-hop, country,
dance, jazz, Latin, and classical; live play-by-play sports from
principal leagues and colleges; multitude of talk and entertainment
channels for various audiences; national, international, and
financial news; and limited run channels. The company was founded
in 1990 and is headquartered in New York, New York. Sirius XM
Holdings Inc. is a subsidiary of Liberty Media Corporation.
SKYWEST INC: Meek Suit Seeks to Certify Frontline Employees Class
-----------------------------------------------------------------
In the class action lawsuit captioned as CODY MEEK, JEREMY BARNES,
and CORYELL ROSS, on behalf of themselves and all others similarly
situated, v. SKYWEST, INC. And SKYWEST AIRLINES, INC., Case
No.3:17-cv-01012-JD (N.D. Cal.), the Plaintiffs will move the Court
on April 22, 2021 to enter an order pursuant to Federal Rule of
Civil Procedure 23, for certification of a class action and the
appointment of Class Counsel.
In the Plaintiffs' Consolidated Class Action Complaint, the
proposed Class members consist of:
"all individuals currently or formerly employed by the the
Defendants SkyWest Airlines, Inc. and SkyWest, Inc. as
Frontline Employees who worked on the ground and were paid
on an hourly basis for at least one shift in the State of
California at any time from February 27, 2013 through
October 18, 2020."
The Plaintiffs Cody Meek, Jeremy Barnes, and Coryell Ross, each of
whom were employed by SkyWest as Frontline Employees at various
airports in California, seek appointment as representatives of the
Class.
The Plaintiffs seek certification of their claims for unpaid
overtime wages when they traded shifts with a co-worker and worked
in excess of eight hours in a day or 40 hours in a week but were
not paid overtime wages pursuant to SkyWest's payroll policies,
thereby violating the California Labor Code.
SkyWest is a leading regional airline serving millions of North
America travelers monthly.
A copy of the Plaintiffs' motion to certify class dated Jan. 28,
2020 is available from PacerMonitor.com at https://bit.ly/3oWmRfc
at no extra charge.[CC]
The Plaintiffs are represented by:
Gregory F. Coleman, Esq.
Lisa A. White, Esq.
GREG COLEMAN LAW PC
First Tennessee Plaza
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
E-mail: greg@gregcolemanlaw.com
lisa@gregcolemanlaw.com
STATE FARM MUTUAL: Pete Slams Denied Insurance Coverage
-------------------------------------------------------
Eileen Pete, on behalf of herself and all others similarly situated
v. State Farm Mutual Automobile Insurance Company, Case No.
21-cv-00056 (Ark. Cir., January 22, 2021), seeks restitution for
any claims previously paid, damages for any un-adjudicated claims
for Uninsured and/or Underinsured motorist coverage, reasonable
attorney's fees, statutory penalties, costs of litigation and other
relief for breach of contract.
State Farm Mutual Automobile Insurance Company is an insurance
company registered and licensed to sell automobile insurance in
Arkansas. State Farm sold insurance policy No. 2398864F2304E to Ms.
Pete and she paid all premiums.
Ms. Pete was involved in an automobile accident with an
underinsured or uninsured motorist. She sustained multiple injuries
including, but not limited to, serious injuries to her neck, left
leg and hip. She also suffered great pain, suffering, and mental
anguish. Her damages are in excess of $25,000.00. Defendant
allegedly has denied sufficient payment on this claim for Uninsured
and/or Underinsured coverage due to its valuing the medical
expenses at twice the amount that Medicare would pay, rather than
valuing them in accordance with Arkansas law thus discounting
reasonable medical expenses by refusing to pay any amount in excess
of twice the Medicare rate.
The complaint asserts that State Farm's discounting practice
violated Arkansas insurance laws by failing to effectuate prompt,
fair, and equitable settlements of claims in which liability has
become reasonably clear, attempting to settle claims on the basis
of an application that was altered without notice to, or knowledge
or consent of, the insured, failing to promptly provide a
reasonable explanation of the basis in the insurance policy in
relation to the facts of applicable law for denial of a claim or
for the offer of a compromise settlement, and compelling insureds
to institute litigation to recover amounts due under an insurance
policy by offering substantially less than the amounts ultimately
recovered in actions brought by those insureds. [BN]
Plaintiff is represented by:
Alan LeVar, Esq.
John Andrew Ellis, Esq.
Colton Gregory, Esq.
Jose Ruiz, Esq.
Law Offices of Alan LeVar
702 Caddo Street
Arkadelphia, AR 71923
Phone: (870) 246-7070
Fax: (501) 588-0086
Email: colton@levarlaw.com
STATE FARM: Class Certification Bid Filing Due September 15
-----------------------------------------------------------
In the class action lawsuit captioned as LISA M. MARTINO,
individually and on behalf of others similarly situated, v. STATE
FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Case No.
4:20-cv-00910-SRB (W.D. Mo.), the Hon. Judge Stephen R. Bough
entered a scheduling order related to class certification, as
follows:
1. Any motion to amend the pleadings shall be filed on or
before April 16, 2021.
2. Any motion to join additional parties shall be filed on or
before April 16, 2021.
3. Class certification-related discovery shall be completed
on or before September 1, 2021.
4. The Plaintiff shall designate any expert witnesses he
intends to use in connection with class certification on
or before April 30, 2021. The Defendant shall designate
any expert witnesses it intends to use in connection with
class certification on or before July 2, 2021.
5. The Plaintiff's motion for class certification shall be
filed on or before September 15, 2021. The Defendant's
opposition to class certification brief is due on or
before October 15, 2021. The Plaintiff's reply brief for
class certification is due on or before November 15, 2021.
6. A class certification hearing will be held on December 3,
2021, in Courtroom 7B in the United States District
Courthouse, Kansas City, Missouri.
State Farm is a large group of insurance companies throughout the
United States with corporate headquarters in Bloomington, Illinois.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/3cHUijc at no extra charge.[CC]
STERLING BANCORP: Agreement in Principle Reached in Michigan Suit
-----------------------------------------------------------------
Sterling Bancorp, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 1, 2021, for
the fiscal year ended November 30, 2020, that an agreement in
principle was reached in Oklahoma Police Pension and Retirement
System v. Sterling Bancorp, Inc., et al., Case No.
5:20-cv-10490-JEL-EAS.
On February 1, 2021, Sterling Bancorp, Inc. issued a press release
announcing that the Company reached an agreement in principle to
settle the securities class action lawsuit, Oklahoma Police Pension
and Retirement System v. Sterling Bancorp, Inc., et al., Case No.
5:20-cv-10490-JEL-EAS, pending in the United States District Court
for the Eastern District of Michigan.
The agreement in principle provides for a single cash payment in
exchange for the release of all of the defendants from all alleged
claims therein and remains subject to final documentation, court
approval and other conditions.
The full amount of the settlement will be paid by the Companys
insurance carriers under applicable insurance policies.
A copy of the Company's press release is available at
https://bit.ly/3aDvoP5.
Sterling Bancorp, Inc. is a unitary thrift holding company
headquartered in Southfield, Michigan and its primary business is
the operation of its wholly-owned subsidiary, Sterling Bank.
Through Sterling Bank, the offers a range of loan products to the
residential and commercial markets, as well as retail banking
services.
STERLING BANCORP: Settles Securities Class Action Lawsuit
---------------------------------------------------------
Sterling Bancorp, Inc. (the "Company") (NASDAQ: SBT), the thrift
holding company for Sterling Bank and Trust, FSB, Southfield,
Michigan (the "Bank"), on Feb. 1 announced that the Company reached
an agreement in principle to settle the securities class action
lawsuit, Oklahoma Police Pension and Retirement System v. Sterling
Bancorp, Inc., et al, Case No. 5:20-cv-10490-JEL-EAS, pending in
the United States District Court for the Eastern District of
Michigan. This action alleged violations of the federal securities
laws, primarily with respect to disclosures concerning the Bank's
residential lending practices that were made in the Company's
registration statement and prospectus for its initial public
offering, in subsequent press releases, in periodic and other
filings with the SEC and during earnings calls. The agreement in
principle provides for a single cash payment in exchange for the
release of all of the defendants from all alleged claims therein
and remains subject to final documentation, court approval and
other conditions. The full amount of the settlement will be paid by
the Company's insurance carriers under applicable insurance
policies.
About Sterling Bancorp, Inc.
Sterling Bancorp, Inc. is a unitary thrift holding company. Its
wholly owned subsidiary, Sterling Bank and Trust, FSB, has primary
branch operations in San Francisco and Los Angeles, California, New
York City and Bellevue, Washington. Sterling offers a range of loan
products to the residential and commercial markets, as well as
retail and business banking services. Sterling also has an
operations center and a branch in Southfield, Michigan. For
additional information, please visit the Company's website at
http://www.sterlingbank.com.
Contacts
Sterling Bancorp, Inc.
Stephen Huber
Chief Financial Officer
(248) 351-3428
shuber@sterlingbank.com [GN]
STRIDE INC: Continues to Defend Lee and Baig Putative Class Suits
-----------------------------------------------------------------
Stride, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on January 27, 2021, for the quarterly
period ended December 31, 2020, that the company continues to
defend two putative securities class action suit entitled, Yun Chau
Lee v. K12 Inc., et al. and Jennifer Baig v. K12 Inc., et al.
On November 19, 2020, a putative securities class action lawsuit
captioned Yun Chau Lee v. K12 Inc., et al was filed against the
company and two of its officers in the United States District Court
for the Eastern District of Virginia, Case No. 1:20-cv-01419.
The plaintiff purports to represent a class of persons who
purchased or otherwise acquired the company's common stock between
April 27, 2020 and September 18, 2020, inclusive, and alleges
violations by the company and the individual defendants of Section
10(b) of the Exchange Act, and Rule 10b-5 promulgated under the
Exchange Act, and violations by the individual defendants of
Section 20(a) of the Exchange Act.
The complaint alleges, among other things, that the company and the
individual defendants made false or misleading statements and/or
omitted to disclose material facts concerning its technological
capabilities and expertise to support increased demand for virtual
and blended education related to the global emergence of COVID-19,
the company's cybersecurity protocols and protections, and its
administrative support and training to teachers, students, and
parents. The complaint seeks unspecified monetary damages and other
relief.
Additionally, on December 11, 2020, a second putative securities
class action lawsuit captioned Jennifer Baig v. K12 Inc., et al was
filed against the company and the same two officers in the United
States District Court for the Eastern District of Virginia, Case
No. 1:20-cv-01528.
The plaintiff in the Baig Case alleges violations of the same
statutes, based on the same or substantially similar alleged
conduct, and on behalf of the same purported class of persons as
the plaintiff in the Lee Case.
On December 3, 2020, the Court in the Lee Case entered an order
establishing an initial case management plan and schedule for,
among other things, consolidation of cases asserting substantially
the same claim or claims, the appointment of a lead plaintiff and
lead counsel, the filing of any amended complaint, and the company
and individual defendants' anticipated motion(s) to dismiss the
claims asserted against them.
Subsequently, on December 21, 2020, a related derivative lawsuit
captioned Larry Shemen, et al v. Aida M. Alvarez, et al was filed
by two of our shareholders in the United States District Court for
the District of Delaware, Case No. 1:20-cv-01731.
The plaintiffs in the Shemen Case allege substantially the same
facts alleged in the Lee and Baig Cases, and purport to assert
claims on the company's behalf against certain of its officers and
directors for breach of fiduciary duty and waste of corporate
assets, and against two of the company's officers for contribution
under Sections 10(b) and 21D of the Exchange Act based on the
purported Exchange Act violations alleged in the Lee Case.
Stride said, "We intend to defend vigorously against each and every
allegation and asserted claim."
Stride, Inc. is an education services company providing online and
blended learning. The company's technology-based products and
services enable its clients to attract, enroll, educate, track
progress, and support students on a scalable basis. These products
and services, spanning curriculum, systems, instruction, and
support services are designed to help learners reach their
educational goals through inspired teaching and personalized
learning. The company is based in Herndon, Virginia.
SURGICAL CARE: Faces Antitrust Suit Over Collusion Allegations
--------------------------------------------------------------
Steven Smith (a pseudonym), individually and on behalf of all
others similarly situated v. SURGICAL CARE AFFILIATES, LLC, SCAI
HOLDINGS, LLC, UNITED HEALTHGROUP, INC., and JOHN DOES 1-10, Case
No. 1:21-cv-00620 (N.D. Ill., Feb. 3, 2021) is brought to address a
conspiracy among the nation's leading operators of outpatient
medical care facilities to restrain competition and reduce
compensation for their senior-level employees and to recover
damages and to prevent the Defendants from retaining the benefits
of their antitrust violations.
According to the complaint, the Defendants ostensibly compete with
one another to hire and retain employees throughout the United
States. However, beginning no later than 2010, the Defendants
entered into agreements to avoid competing for senior-level
employees, by refraining from soliciting or hiring each other's
senior-level employees absent the knowledge and consent of their
existing employers. These "no-poach" agreements continued through
at least 2017, and the Defendants' most senior executives monitored
and enforced these agreements. These no-poach agreements were not
necessary to any legitimate business transaction or lawful
collaboration among the companies. The Defendants' conspiracy was
strictly a tool to suppress their senior-level employees'
compensation, and hence their own expenses, the suit says.
Allegedly, these no-poach agreements accomplished their purpose.
They reduced competition for the Defendants' senior-level employees
and suppressed the Defendants' senior-level employee compensation
below competitive levels. The conspiracy disrupted the efficient
allocation of labor that would have resulted if Defendants had
competed for, rather than colluded against, their current and
prospective senior-level employees. The Defendants' agreements also
denied their senior-level employees access to job opportunities,
restricted their mobility, and deprived them of significant
information that they could have used to negotiate for better
compensation and terms of employment, added the suit.
The Defendants concealed their conspiracy, such that the Plaintiff
could not have discovered it through the exercise of reasonable
diligence. Until recently, the Plaintiff did not discover and did
not know of any facts that would have caused a reasonable person to
suspect that the Defendants were conspiring to restrain competition
for the services of their senior-level employees, says the
complaint.
The Plaintiff was employed by the Defendant Surgical Care
Affiliates, LLC.
Surgical Care Affiliates, LLC was a company organized and existing
under the laws of Delaware with its principal places of business in
Birmingham, Alabama and Deerfield, Illinois.[BN]
The Plaintiff is represented by:
Stephanie A. Scharf, Esq.
Sarah Marmor, Esq.
SCHARF BANKS MARMOR LLC
333 West Wacker Drive, Suite 450
Chicago, IL 60606
Phone: (312) 726-6000
Email: sscharf@scharfbanks.com
smarmor@scharfbanks.com
- and -
Roberta D. Liebenberg, Esq.
Gerard A. Dever, Esq.
Mary L. Russell, Esq.
FINE, KAPLAN AND BLACK, R.P.C.
One South Broad Street, 23rd Floor
Philadelphia, PA 19107
Phone: (215) 567-6565
Email: rliebenberg@finekaplan.com
gdever@finekaplan.com
mrussell@finekaplan.com
- and -
Linda P. Nussbaum, Esq.
Bart D. Cohen, Esq.
NUSSBAUM LAW GROUP, P.C.
1211 Avenue of the Americas, 40th Floor
New York, NY 10036
Phone: (917) 438-9102
Email: lnussbaum@nussbaumpc.com
bcohen@nussbaumpc.com
- and -
Gary M. Klinger, Esq.
MASON LIETZ & KLINGER LLP
227 W. Monroe Street, Ste. 2100
Chicago, IL 60606
Phone: (202) 429-2290
Email: gklinger@masonllp.com
- and -
Michael L. Roberts, Esq.
Kelly Rinehart, Esq.
Karen Halbert, Esq.
William R. Olson, Esq.
ROBERTS LAW FIRM US, PC
1920 McKinney Ave., Suite 700
Dallas, TX 75204
Phone: (501) 821-5575
Email: mikeroberts@robertslawfirm.us
kellyrinehart@robertslawfirm.us
karenhalbert@robertslawfirm.us
williamolson@robertslawfirm.us
- and -
William E. Hoese, Esq.
KOHN, SWIFT & GRAF, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Phone: (215) 238-1700
Email: whoese@kohnswift.com
SVENSK MANAGEMENT: Wallen Suit Seeks to Certify Technicians' Class
------------------------------------------------------------------
In the class action lawsuit captioned as DEBRON WALLEN, SANJAY
SHAKES, Individually and On Behalf of All Others Similarly
Situated, v. SVENSK MANAGEMENT, INC. & RICHARD FERNBACH, Case No.
0:20-cv-61690-AHS (S.D. Fla.), the Plaintiffs ask the Court to
enter an order:
1. conditionally certifying a class of all service
technicians, for the last three years, whom the Defendants
have employed;
2. permitting, under court supervision, notice to the
following class of similarly situated employees:
"all service technicians, who worked for the Defendants,
at any time during the last three years, who were not paid
all wages due for overtime worked pursuant to the Fair
Labor Standards Act (FLSA), in one or more workweeks, as a
result of the Defendants' pay practices, specifically, not
keeping time records, and paying for all overtime worked
during the week;" and
3. directing the Defendants to immediately produce to the
Plaintiffs the names, addresses, and email addresses for
each member of said class, and facilitate notice to same,
including the posting of notice at the Defendants' Place
of Business.
The Plaintiffs contend that they were paid an arbitrary amount of
overtime, for work over the weekends. However, employees were not
paid for the hours they actually worked on the weekend, or during
the week, because the work hours were almost always longer than the
arbitrary weekend amount would compensate them for. They were all
subject to a similar pay structure, and similar pay policies, and
practices, which were violative of the FLSA.
Svensk Management is located in Fort Lauderdale, Florida and is
part of the specialty contractors industry.
A copy of the Plaintiffs' motion to certify class dated Jan. 27,
2020 is available from PacerMonitor.com at https://bit.ly/2O6OuWo
at no extra charge.[CC]
The Plaintiffs are represented by:
Joshua H. Sheskin, Esq.
LUBELL & ROSEN, LLC
200 S. Andrews Ave, Suite 900
Fort Lauderdale, FL 33301
Telephone: (954) 880-9500
Facsimile: (954) 755-2993
E-mail: jhs@lubellrosen.com
SYSCO JACKSONVILLE: A1A Burrito Suit Removed to M.D. Florida
------------------------------------------------------------
The case styled A1A Burrito Works, Inc., a Florida corporation, A1A
Burrito Works Taco Shop 2, Inc., a Florida corporation and Juniper
Beach Enterprises, Inc., a Florida corporation, on behalf of
themselves and those similarly situated v. Sysco Jacksonville,
Inc., a Delaware corporation, Case No. 16-20-CA-008663, was removed
from the Florida 4th Judicial Circuit for Duval County to the U.S.
District Court for the Middle District of Florida on January 13,
2021.
The Clerk of Court for the Middle District of Florida assigned Case
No. 3:21-cv-00041-TJC-JBT to the proceeding.
The case is brought over alleged contract violations and is
assigned to Judge Timothy J. Corrigan.
Sysco Jacksonville, Inc. sells, markets, and distributes food
products. The Company provides fresh, crisp lettuce, creamy soups,
spicy salsas, and organic products. Sysco Jacksonville serves
restaurant, healthcare, and educational industries worldwide. [BN]
The Plaintiffs are represented by:
Ariana J. Tadler, Esq.
Brian R. Morrison, Esq.
TADLER LAW LLP
One Pennsylvania Plaza, 36th Floor
New York, NY 10119-0165
Telephone: (212) 946-9300
Facsimile: (929) 207-3746
E-mail: atadler@tadlerlaw.com
bmorrison@tadlerlaw.com
- and -
Brian W. Warwick, Esq.
Erika Roxanne Willis, Esq.
Janet R. Varnell, Esq.
Matthew T. Peterson, Esq.
VARNELL & WARWICK, PA
1101 E. Cumberland Ave., Suite 201H, #105
Tampa, FL 33602
Telephone: (352) 753-8600
Facsimile: (352) 504-3301
E-mail: bwarwick@varnellandwarwick.com
ewillis@varnellandwarwick.com
jvarnell@varnellandwarwick.com
mpeterson@varnellandwarwick.com
- and -
John Allen Yanchunis, Esq.
Ryan Joseph McGee, Esq.
MORGAN & MORGAN, PA
One Tampa City Center Ste 700
201 N Franklin Street
Tampa, FL 33602-5157
Telephone: (813) 223-5505
Facsimile: (813) 223-5402
E-mail: jyanchunis@forthepeople.com
rmcgee@forthepeople.com
The Defendant is represented by:
Kyle A. Diamantas, Esq.
BAKER, DONELSON, BEARMAN, CALDWELL
& BERKOWITZ, PC
200 S Orange Ave., Ste 2900
Orlando, FL 32801
Telephone: (407) 422-6600
Facsimile: (407) 841-0325
E-mail: kdiamantas@bakerdonelson.com
- and -
Samuel L. Felker, Esq.
BAKER, DONELSON, BEARMAN, CALDWELL
& BERKOWITZ, PC
211 Commerce Street, Suite 800
Nashville, TN 37201
Telephone: (615) 726-5558
Facsimile: (615) 744-5558
E-mail: samfelker@bakerdonelson.com
TAWKIFY INC: Class Certification Bid Must be Filed by Sept. 23
--------------------------------------------------------------
In the class action lawsuit captioned as JEREMY STANFIELD v.
TAWKIFY, INC., Case No. 3:20-cv-07000-WHA (N.D. Cal.), the Hon.
Judge William Alsup entered a case management order as follows:
1. All initial disclosures under FRCP 26 must be completed by
February 5, 2021, on pain of preclusion under FRCP 37(c),
including full and faithful compliance with FRCP 22 26(a)
(1)(A)(iii).
2. Leave to add any new parties or to amend pleadings must be
sought by April 30, 2021.
3. The motion for class certification must be filed by
September 23, 2021, to be heard on a 49-day track.
4. The non-expert discovery cut-off date shall be January 28,
2022.
5. The last date for designation of expert testimony and
disclosure of full expert reports under FRCP 26(a)(2) as
to any issue on which a party has the burden of proof
shall be January 28, 2022.
6. The last date to file dispositive motions shall be March
3, 2022.
7. A jury trial shall begin on May 23, 2022.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/2O8SkhD at no extra charge.[CC]
TELIGENT INC: Class Certification Briefing Schedule Extended
------------------------------------------------------------
In the class action lawsuit captioned as OKLAHOMA POLICE PENSION
FUND AND RETIREMENT SYSTEM, Individually and on Behalf of All
Others Similarly Situated, v. TELIGENT, INC. and JASON
GRENFELL-GARDNER, Case No. 1:19-cv-03354-VM (S.D.N.Y.), the Hon.
Judge Victor Marrero entered an order granting joint stipulation
requesting extension for class certification briefing schedule as
follows:
1. The deadline for the Defendants to file their Class
Certification Opposition is extended to April 2, 2021; and
2. The deadline for Lead Plaintiff to file their Class
Certification Reply is extended to June 11, 2021.
OPPRS is considered an extremely well-funded plan with a funded
ratio of 102.5% at July 1, 2019.
Teligent is a specialty generic pharmaceutical company.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/36NbRe8 at no extra charge.[CC]
Counsel for Lead Plaintiff Oklahoma Police Pension Fund and
Retirement System, are:
Max R. Schwartz, Esq.
Jeffrey P. Jacobson, Esq.
SCOTT + SCOTT
ATTORNEYS AT LAW LLP
The Helmsley Building
230 Park Avenue, 17th Floor
New York, NY 10169
Telephone: (212) 223-6444
E-mail: mschwartz@scott-scott.com
jjacobson@scott-scott.com
Counsel for Teligent, Inc. And Jason Grenfell-Gardner, are:
Douglas P. Baumstein, Esq.
Jacob H. Hupart, Esq.
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY & POPEO, P.C.
Chrysler Center
666 Third Avenue
New York, NY 10017
Telephone: (212) 935-3000
E-mail: dbaumstein@mintz.com
jhhupart@mintz.com
TENCENT HOLDINGS: Lawyer to Represent in Breaches of Privacy Suit
------------------------------------------------------------------
Singaporean human rights lawyer Ravi Madasamy, known as M Ravi, has
been engaged to represent plaintiffs in a class action lawsuit
against Tencent International Service Pte Ltd, the Singapore entity
of Chinese tech giant Tencent, over alleged breaches of privacy via
its instant messaging and payments app WeChat.
In a Facebook post on Friday (29 January), Mr. Ravi said that he
has been instructed by Times Wang -- the lead counsel in the
lawsuit -- to serve court documents and papers on Tencent.
"This is my first international human rights law case on breach of
privacy and on surveillance. I am glad to assist Times Wang and to
be part of of this international team," said Mr. Ravi.
Mr Wang, who is based in Washington D.C., represents the group of
California-based plaintiffs comprising United States citizens and
Chinese nationals, as well as pro-democracy nonprofit organisation
Citizen Power Initiatives for China.
Besides privacy breaches, among other alleged violations raised by
the plaintiffs are unjust enrichment, negligence, unfair
competition and intentional infliction of emotional distress.
The plaintiffs alleged that Tencent, via WeChat, had been relaying
private user data and communications to the Chinese government,
profiting from using private user data and communications to
improve censorship and surveillance algorithms, and censoring or
monitoring WeChat user communications for any messages critical of
the Chinese government, among other instances.
Certain provisions in Tencent's terms of service and privacy
policy, the plaintiffs said, are "deliberately vague and ambiguous
with respect to whether the challenged practices are permitted or
prohibited", which in turn benefits Tencent by "reserving to it the
right to adopt self-interested interpretations".
Highlighting that other platforms such as WhatsApp, Facebook,
Twitter, and Gmail are blocked in China, the plaintiffs pointed out
that "no reasonable alternative" to WeChat currently exists "for
anyone wishing to maintain regular contact with the
Chinese-speaking world".
"By comparison, most other methods are either expensive or
inefficient, or require the person inside the PRC to circumvent
government controls, or both," they said.
Tencent's "effective monopoly", said the plaintiffs, leave
California WeChat users "no meaningful choice but to accept the
challenged practices and provisions as a condition of using
WeChat".
"Thus, because the challenged provisions require California WeChat
users to sacrifice a panoply of speech, privacy, and other rights
as a condition of using WeChat, these requirements are
unconscionable and void against public policy," the plaintiffs
argued.
Among the reliefs sought by the plaintiffs in their lawsuit against
Tencent are a declaratory judgment that the challenged provisions
are unlawful, an injunction requiring all California WeChat users
to be able to use WeChat without being subject to politically
motivated censorship and surveillance, and an injunction requiring
Tencent to prevent California WeChat user data from being used to
improve WeChat's censorship and surveillance systems.
Tencent International Service Pte Ltd was named as one of the
defendants in the lawsuit initiated by the California plaintiffs,
alongside Tencent America LLC.
Tencent International Service Pte Ltd is the relevant contracting
entity for WeChat users residing in California, according to
WeChat's terms of service.
Both Tencent International Service Pte Ltd and Tencent America LLC
operate or participate in running WeChat in California.
Tencent's website states that Tencent America LLC's work
"include[s] advertising, artificial intelligence, cloud services,
entertainment, investments, payments, and security".
Its "artificial intelligence," "cloud services," and "security"
work includes assisting with the development, operation, and
improvement of the censorship and surveillance practices and
policies being challenged by the plaintiffs in their lawsuit
against Tencent. [GN]
TEXLEY INC: Williams Sues Over Exotic Dancers' Unpaid Minimum Wages
-------------------------------------------------------------------
Brooke Williams, on behalf of herself and all other similarly
situated individuals v. TEXLEY INC. d/b/a GLAMOUR GIRLS, Case No.
4:21-cv-00359 (S.D. Tex., Feb. 3, 2021) seeks to recover minimum
wage compensation, damages, back-pay, restitution, liquidated
damages, prejudgment interest, reasonable attorney's fees and costs
under the Federal Fair Labor Standards Act.
According to the complaint, the Defendant misclassified the
Plaintiff as an independent contractor and, in so doing, denied her
minimum wage compensation due and owing under the FLSA. The
Defendant willfully and intentionally violated the wage payment and
wage/gratuity retention rights of the Plaintiff and all other
exotic dancers at the French Quarter Club in direct violation of
the FLSA. At no time during the Plaintiff's period of employment
did the Defendant ever pay the Plaintiff any wages for hours that
the Plaintiff worked each week. The Defendant totally failed to pay
wages or any kind of compensation to the Plaintiff for work duties
performed, says the complaint.
The Plaintiff was employed by Glamour Girls Cabaret as an exotic
dancer at Glamour Girls Cabaret's strip club in Houston, Texas.
Glamour Girls Cabaret is a corporation, formed under the laws of
Texas that operates as a strip club in Houston, Texas.[BN]
The Plaintiff is represented by:
Meredith Black-Mathews, Esq.
J. Forester, Esq.
FORESTER HAYNIE PLLC
400 N. St. Paul Street, Suite 700
Dallas, TX 75201
Phone: (214) 210-2100
Fax: (214) 346-5909
Email: mmathews@foresterhaynie.com
jay@foresterhaynie.com
- and -
Gregg C. Greenberg, Esq.
ZIPIN, AMSTER & GREENBERG, LLC
8757 Georgia Avenue, Suite 400
Silver Spring, Maryland 20910
Phone: (301) 587-9373
Email: GGreenberg@ZAGFirm.com
TODAY'S HOTEL: Website Lacks Accessibility Info, Rios Suit Claims
-----------------------------------------------------------------
Mary Rios v. Today's Hotel Corporation, a California Corporation,
Case No. 3:21-cv-00339-AGT (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, on September 17, 2020, Ms. Rios went to
the Holiday Inn San Francisco-Golden Gateway Hotel reservation
Website at https://www.goldengatewayhotel.com seeking to book an
accessible room at the location. She alleges that the Defendant
failed to provide information on the hotel's reservation Website
that would permit her to determine if there are rooms that would
work for people with physical disabilities like her.
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 her due to her disability, the suit
says.
Ms. Rios is a California resident with physical disabilities. She
is substantially limited in her ability to walk. She is a
paraplegic and uses a wheelchair for mobility.
Today's Hotel Corporation, a California Corporation, operates
public hotels and motels. [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
TOPPERS INTERNATIONAL: Bryant Class Suit Dismissed w/o Prejudice
----------------------------------------------------------------
In the class action lawsuit captioned as QYNNISHA BRYANT, on behalf
of herself and all others similarly situated, v. TOPPERS
INTERNATIONAL, INC., DARNELL LEWIS GARDNER, and SANDRA GARDNER,
Case No. 3:20-cv-00061-CDL (M.D. Ga.), the Hon. Judge Clay D. Land
entered an order:
1. granting the Defendants' motion to compel arbitration;
2. dismissing class action without prejudice; and
3. mooting Bryant's motion for conditional certification.
The Court finds that Bryant agreed to arbitrate the FLSA claim at
issue in this action and that the Defendants did not waive their
right to arbitration.
Toppers is an adult night club. Qynissha Bryant was an entertainer
at the club, and she contends that Toppers improperly classified
her as an independent contractor and did not pay her minimum wage
as required by the Fair Labor Standards Act (FLSA). Ms. Bryant also
alleges that Toppers treated other entertainers the same way, and
she filed a motion for conditional certification of her putative
FLSA collective action pursuant to 29 U.S.C. section 216(b). The
Defendants oppose the motion, arguing that Bryant agreed to submit
any FLSA claims against them to arbitration. The Defendants then
filed a motion to compel arbitration. Ms. Bryant responded that the
Defendants waived their right to insist on arbitration.
A copy of the Court's order dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/2YTaRAC at no extra charge.[CC]
UBER TECHNOLOGIES: Faces Short Suit Over Drivers' Misclassification
-------------------------------------------------------------------
Kathleen Short, on behalf of herself and on behalf of all others
similarly situated v. UBER TECHNOLOGIES, INC., Case No.
2:21-cv-14057-XXXX (S.D. Fla., Feb. 3, 2021) is brought to
challenge the Defendant's uniform policy of willfully
misclassifying its drivers as independent contractors when, in
fact, each such driver is and/or was an employee of the Defendant,
in violation of the Fair Labor Standards Act and the Florida
Minimum Wage Act.
As a result of Uber's unlawful misclassification of its drivers as
independent contractors, Uber has uniformly violated the
requirements of the FLSA and the FMWA by failing to pay its Drivers
at least the minimum wage required by Federal and Florida law for
every hour worked, says the complaint.
The Plaintiff worked for Uber as a driver in Sebastian, Florida
between March 2018 and May 2020.
Uber Technologies engages in a transportation or taxi
business.[BN]
The Plaintiff is represented by:
Brandon J. Hill, Esq.
Amanda E. Heystek, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Ave., Suite 300
Tampa, FL 33602
Main Number: (813) 224-0431
Facsimile: (813) 229-8712
Email: bhill@wfclaw.com
aheystek@wfclaw.com
gnichols@wfclaw.com
UNIT CORP: Deal Reached to Settle Chieftain Royalty Class Suit
--------------------------------------------------------------
Unit Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on January 28, 2021, for the
quarterly period ended September 30, 2020, that an agreement to
settle the class action suit entitled, Chieftain Royalty Company
vs. Unit Petroleum Company, has been reached.
On November 3, 2016, a putative class action lawsuit was filed
against Unit Petroleum Company styled Chieftain Royalty Company v.
Unit Petroleum Company in LeFlore County, Oklahoma.
Plaintiff alleges that Unit Petroleum breached its duty to pay
royalties on natural gas used for fuel off the lease premises.
The lawsuit seeks actual and punitive damages, an accounting,
injunctive relief, and attorney's fees.
Plaintiff is seeking relief on behalf of Oklahoma citizens who are
or were royalty owners in the company's Oklahoma wells.
In August 2020, Unit Petroleum Company reached an agreement to
settle these class actions. Under the settlement, Unit Petroleum
Company agreed to recognize class proof of claims in the amount of
$15.75 million for Cockerell Oil Properties, Ltd. vs. Unit
Petroleum Company, and $29.25 million in Chieftain Royalty Company
vs. Unit Petroleum Company.
This settlement is subject to certain conditions, including
approval by the United States Bankruptcy Court for the Southern
District of Texas, Houston Division in Case No. 20-32740 under the
caption In re Unit Corporation, et al. Under the Company's
(including joint debtor Unit Petroleum Company) approved plan or
reorganization, these settlements will be treated as allowed class
claims of general unsecured creditors.
The settlement amounts will be satisfied by distribution of the
plaintiffs' proportionate share of New Common Stock of the
reorganized company.
Unit Corporation, together with its subsidiaries, engages in the
exploration, acquisition, development, and production of oil and
natural gas properties in the United States. It operates through
three segments: Oil and Natural Gas, Contract Drilling, and
Mid-Stream. Unit Corp was founded in 1963 and is headquartered in
Tulsa, Oklahoma.
UNIT CORP: Settlement Deal Between Subsidiary & Cockerell Reached
-----------------------------------------------------------------
Unit Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on January 28, 2021, for the
quarterly period ended September 30, 2020, that an agreement to
settle the class action suit entitled, Cockerell Oil Properties,
Ltd., v. Unit Petroleum Company, has been reached.
On March 11, 2016, the putative class action lawsuit was filed
against Unit Petroleum Company. The company removed the case to
federal court in the Eastern District of Oklahoma.
The plaintiff alleges that Unit Petroleum wrongfully failed to pay
interest with respect to late paid oil and gas proceeds under
Oklahoma's Production Revenue Standards Act.
The lawsuit seeks actual and punitive damages, an accounting,
disgorgement, injunctive relief, and attorney fees.
Plaintiff is seeking relief on behalf of royalty and working
interest owners in our Oklahoma wells.
In August 2020, Unit Petroleum reached an agreement to settle these
class actions. Under the settlement, Unit Petroleum agreed to
recognize class proof of claims in the amount of $15.75 million for
Cockerell Oil Properties, Ltd. vs. Unit Petroleum Company, and
$29.25 million in Chieftain Royalty Company vs. Unit Petroleum
Company.
This settlement is subject to certain conditions, including
approval by the United States Bankruptcy Court for the Southern
District of Texas, Houston Division in Case No. 20-32740 under the
caption In re Unit Corporation, et al. Under the Company's
(including joint debtor Unit Petroleum Company) approved plan or
reorganization, these settlements will be treated as allowed class
claims of general unsecured creditors.
The settlement amounts will be satisfied by distribution of the
plaintiffs' proportionate share of New Common Stock of the of the
reorganized company.
Unit Corporation, together with its subsidiaries, engages in the
exploration, acquisition, development, and production of oil and
natural gas properties in the United States. It operates through
three segments: Oil and Natural Gas, Contract Drilling, and
Mid-Stream. Unit Corp was founded in 1963 and is headquartered in
Tulsa, Oklahoma.
UNITED ENROLLMENT: Ailion Files TCPA Suit in N.D. Georgia
---------------------------------------------------------
A class action lawsuit has been filed against United Enrollment
Services LLC. The case is styled as Adam Ailion, individually and
on behalf of a class of all persons and entities similarly situated
v. United Enrollment Services LLC, Case No. 1:21-cv-00509-ELR (N.D.
Ga., Feb. 3, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act.
United Enrollment Services is located in Boca Raton, Florida. This
organization primarily operates in the Health Insurance Carriers
business.[BN]
The Plaintiff is represented by:
Anthony Paronich, Esq.
PARONICH LAW, P.C.
350 Lincoln St., Suite 2400
Hingham, MA 02043
Phone: (615) 485-0018
Email: anthony@paronichlaw.com
- and -
Steven Howard Koval, Esq.
THE KOVAL FIRM, LLC
Building 15, Suite 120
3575 Piedmont Rd.
Atlanta, GA 30305
Phone: (404) 513-6651
Fax: (404) 549-4654
Email: shkoval@aol.com
UNITED STATES FIRE: Epie Files Insurance Suit in W.D. Missouri
--------------------------------------------------------------
A class action lawsuit has been filed against United States Fire
Insurance Company. The case is styled as Peter Epie, individually
and on behalf of all others similarly situated v. United States
Fire Insurance Company, Trip Mate, Inc., Case No. 2:21-cv-04021-BCW
(W.D. Mo., Feb. 3, 2021).
The case alleges insurance contract violations.
United States Fire Insurance Company -- https://www.cfins.com/ --
is located in Morristown, New Jersey and is part of the
property/casualty insurance carriers industry.[BN]
The Plaintiff is represented by:
Nathaniel Scearcy, Esq.
POTTS LAW FIRM, LLP - Westwood KS
1901 West 47th Place, Suite 210
Westwood, KS 66205
Phone: (816) 931-2230
Fax: (816) 931-7030
Email: nscearcy@potts-law.com
UNITED STATES: Bid to Dismiss GCA et al. Class Action Tossed
------------------------------------------------------------
In the class action lawsuit captioned as GUAM CONTRACTORS
ASSOCIATION, et al., v. MONTY WILKINSON, Attorney General
of the United States (Acting), et al., Case No. 1:16-cv-00075 (D.
Guam), the Hon. Judge Frances M. Tydingco-Gatewood entered an
order:
1. denying the Defendants' motion to dismiss; and
2. denying the Plaintiffs' motion seeking judicial notice
of the AAO proceeding as moot.
The Court said, "While portions of the Plaintiffs' claims are
likely rendered moot by NDAA FY 19 and NDAA FY 21, the court does
not find the legislation completely remedies all of the Plaintiffs'
alleged injury-in-fact. Additionally, the harm alleged is capable
of repetition yet evading review, and thus the claims provides an
exception to the mootness doctrine."
This class action relates to the "H-2B" work visa program. The H-2B
work visa program allows employers to bring certain foreign
nonimmigrant workers to the United States to fill temporary
nonagricultural jobs. However, the program only provides visas for
workers involved in "temporary service[s] or labor." Consequently,
an employer must file an application with United States Citizenship
and Immigration Services (USCIS) to explain the temporary nature of
the work and to set forth the specific period of need for which the
foreign worker will be present in the United States. The temporary
nature of the work is subject to review by USCIS.
A copy of the Court's order dated Jan. 27, 2020 is available from
PacerMonitor.com at https://bit.ly/36NtISe at no extra charge.[CC]
UNITED STATES: Christy Inc. Files Cert. Petition to Supreme Court
-----------------------------------------------------------------
Plaintiff Christy, Inc. filed with the Supreme Court of United
States a petition for a writ of certiorari in the matter styled
CHRISTY, INC., Petitioner v. UNITED STATES, Respondent, Case No.
20-1003.
Response is due on February 25, 2021.
The Plaintiff petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Federal
Circuit in the case titled CHRISTY, INC., ON BEHALF OF ITSELF AND
ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellant v. UNITED
STATES, Defendant-Appellee, Case No. 2019-1738, which affirmed the
Judgment of the Court of Federal Claims dismissing the case.
Christy argues that the Court of Federal Claims erred in three
ways: by (1) finding that Christy failed to state a compensable
takings claim based on the cancellation of claims 1-18 of the
United States Patent No. 7,082,640; (2) finding that the court
lacked subject matter jurisdiction over Christy's illegal exaction
claim; and (3) finding that Christy failed to state a plausible
illegal exaction claim. The government concedes that the Court of
Federal Claims erred in finding that it lacked subject matter
jurisdiction over Christy's illegal exaction claim but argues for
the first time on appeal that the court lacked jurisdiction over
Christy's takings claim.
The questions presented are:
1) When a duly-issued patent is invalidated through a post-grant
review process (such as an Inter Partes Review (IPR)), must
compensation be paid under the Takings Clause?
2) When a duly-issued patent is invalidated through a post-grant
review process (such as an IPR), should the issuance and
maintenance fees that were demanded by the government by mistake be
returned?
As previously reported in the Class Action Reporter, the lawsuit is
brought for damages to Christy, Inc. and a class of other patent
holders whose property was taken by the United States Patent and
Trademark Office (USPTO) without compensation in violation of the
Fifth Amendment of the Constitution.
According to the lawsuit, this unlawful "taking" occurred when the
Patent Trial and Appeal Board ("PTAB") invalidated claims pursuant
to the post-grant proceedings created in the America Invents Act
("AIA"), including Inter Partes Review ("IPR") and Post-Grant
Review ("PGR") proceedings (together, "post-grant proceedings" or
"PGPs"). These PGPs have been used by the USPTO to invalidate
patents at an alarming rate, and Christy, Inc. and other patent
holders seek just compensation for the taking of patent owners'
recognized patent property rights by the United States. More
specifically, the lawsuit seeks money damages for the value of the
patent claims, including any expected royalty and other payments
for use of the patented technologies, the issuance and maintenance
fees paid, and any investments made in the patented
technologies.[BN]
Plaintiff-Appellant-Petitioner Christy, Inc. is represented by:
James Francis McDonough, III, Esq.
HENINGER GARRISON DAVIS, LLC
3621 Vinings Slope, Suite 4320
Atlanta, GA 30339
E-mail: jmcdonough@hgdlawfirm.com
Defendant-Appellee-Respondent United States is represented by:
Elizabeth B. Prelogar, Esq.
UNITED STATES DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
E-mail: SupremeCtBriefs@USDOJ.gov
UNITED STATES: Huisha-huisha Suit Seeks to Certify Class
--------------------------------------------------------
In the class action lawsuit captioned as NANCY GIMENA
HUISHA-HUISHA, et al., v. DAVID PEKOSKE, Acting Secretary of
Homeland Security, in his official capacity, et al., Case No.
1:21-cv-00100-EGS (D.D.C.), the Plaintiffs ask the Court to enter
an order certifying a class of:
"all noncitizens who (1) are or will be in the United States;
(2) come to the United States as a family unit composed of at
least one child under 18 years old and that child's parent or
legal guardian; and (3) are or will be subjected to the Title
42 Process."
The Plaintiffs are six families that fled their countries to seek
asylum and other forms of humanitarian protection in the United
States. All face summary expulsion pursuant to unlawful Title 42
Process, without any hearing or access to the protections to which
they should be entitled under immigration laws.
The United States Department of Homeland Security is the U.S.
federal executive department responsible for public security,
roughly comparable to the interior or home ministries of other
countries.
A copy of the Plaintiffs' motion to certify class dated Jan. 28,
2020 is available from PacerMonitor.com at https://bit.ly/3cMIhJt
at no extra charge.[CC]
The Plaintiffs are represented by:
Stephen B. Kang, Esq.
Cody Wofsy, Esq.
Morgan Russell, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
IMMIGRANTS' RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0770
- and -
Andre Segura, Esq.
Kathryn Huddleston, Esq.
Rochelle Garza, Esq.
Brantley Shaw Drake, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
OF TEXAS, INC.
5225 Katy Freeway, Suite 350
Houston, TX 77007
Telephone: (713) 942-8146
- and -
Tamara F. Goodlette, Esq.
REFUGEE AND IMMIGRANT CENTER FOR
LEGAL EDUCATION AND LEGAL SERVICES
(RAICES)
802 Kentucky Avenue
San Antonio, TX 78201
Telephone: (210) 960-3206
- and -
Karla M. Vargas, Esq.
TEXAS CIVIL RIGHTS PROJECT
1017 W. Hackberry Ave.
Alamo, TX 78516
Telephone: (956) 787-8171
- and -
Celso J. Perez, Esq.
Lee Gelernt, Esq.
Daniel A. Galindo, Esq.
Omar Jadwat, Esq.
Ming Cheung, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
IMMIGRANTS' RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2600
- and -
Robert Silverman, Esq.
Irit Tamir, Esq.
Oxfam America
Boston, MA 02115, Suite 500
Telephone: (617) 482-1211
- and -
Scott Michelman, Esq.
Arthur B. Spitzer, Esq.
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF
THE DISTRICT OF COLUMBIA
915 15th Street NW, Second Floor
Washington, D.C. 20005
Telephone: (202) 457-0800
- and -
Jamie Crook, Esq.
Karen Musalo, Esq.
CENTER FOR GENDER & REFUGEE STUDIES
200 McAllister St.
San Francisco, CA 94102
Telephone: (415) 565-4877
UNITED STATES: Lambro Seeks Proper Overtime Pay for Technicians
---------------------------------------------------------------
JASON LAMBRO, individually and on behalf of similarly situated
individuals v. THE UNITED STATES OF AMERICA, Case No. 1:21-cv-00255
(D.D.C., Jan. 28, 2021) arises from US Agency for Global Media's
(USAGM's) willful misclassification of the Plaintiff and the Class
members as independent contractors rather than employees.
According to the complaint, USAGM wrongfully lured the Plaintiff
and the Class Members into purchase order agreements, explicitly
limiting the parties' relationship as non-personal service
contractors or independent contractors. Contrary to the purchase
order agreement's terms, the Plaintiff and the Class members
provided USAGM personal services, as defined in 48 CFR section
37.104, creating an employee-employer relationship between the
parties and entitling the Plaintiff and the Class members to
benefits available to federal employees.
Allegedly, the USAGM's willful misclassification is exemplified in
its response to the Inspector General of the Department of State
(OIG) June 2014 Audit of the Broadcasting Board of Governors
Administration and Oversight of Acquisition Functions. In that
audit the OIG determined that the USAGM misclassified Class members
in knowing violation of the law. Even after the OIG's findings,
USAGM refused to rectify its wrongs and continued to use purchase
orders and vendor agreements to obtain personal services via
contract until July or August of 2020. USAGM's acts prevented
Plaintiff and the Class Members from receiving benefits and
additional compensation for overtime hours as allowed by the FLSA,
the suit says.
As a result of USAGM's actions, the Plaintiff and the Class Members
are entitled to unpaid wages for work performed for which they did
not receive any compensation, overtime work for which they did not
receive any overtime premium pay as required by law, and are
entitled to liquidated damages under the FLSA, contends the suit.
Plaintiff Jason Lambro is an adult individual domiciled in
Nottingham, Maryland. The Plaintiff provides Studio Technician
services at VoA's headquarters in Washington, DC, under a purchase
order agreement with the VoA.
The Defendant operates the USAGM, an independent governmental
agency created to provide international broadcasting. USAGM is
comprised of five media organizations, including the Voice of
America (VoA). USAGM is federally mandated to support daily
operations and provide transmission and distribution services and
technical support for the media organizations under its umbrella.
Each organization within the USAGM has multiple departments, all
with separate leadership and workforce.[BN]
The Plaintiff is represented by:
David Ludwig, Esq.
Ben Barlow, Esq.
DUNLAP BENNETT & LUDWIG PLLC
1200 G Street, NW, Suite 800
Washington, DC 20005
Telephone: (202) 316-8558
Facsimile: (855) 226-8791
E-mail: dludwig@dbllawyers.com
bbarlow@dbllawyers.com
- and -
Joe Whitcomb, Esq.
WHITCOMB, SELINSKY, PC.
2000 S. Colorado Blvd.
Tower 1, Suite #9500
Denver, CO 80222
Telephone: (303) 534-1958
Facsimile: (303) 534-1949
E-mail: joe@whitcomblawpc.com
UNITED STATES: Torres Files Suit in District of Columbia
--------------------------------------------------------
A class action lawsuit has been filed against THOMAS W. HARKER, et
al. The case is styled as Oscar D. Torres, on behalf of himself and
all others similarly situated v. THOMAS W. HARKER in his official
capacity, UNITED STATES SECRETARY OF THE NAVY (ACTING), UNITED
STATES OF AMERICA, Case No. 1:21-cv-00306 (D.D.C., Feb. 2, 2021).
The nature of suit is stated as Administrative Procedure Act/Review
or Appeal of Agency for Judicial Review of Agency Actions.
Thomas W. Harker is an American government official who has served
in the United States Department of Veterans Affairs and the United
States Department of Defense.[BN]
The Plaintiff is represented by:
Barak Cohen, Esq.
PERKINS COIE LLP
700 13th Street, NW, Suite 600
Washington, DC 20005
Phone: (202) 654-6337
Fax: (202) 654-9997
Email: bcohen@perkinscoie.com
UNIVERSITY OF LOUISVILLE: Lyvers Suit Removed to E.D. Kentucky
--------------------------------------------------------------
The case captioned as Kelsey Lyvers, on behalf of herself and other
individuals similarly situated v. The University of Louisville,
Scott W. Brinkman, Randall J Bufford, Raymond Burse, John E.
Chilton, Alfonso Cornish, Sandra Frazier, Diane Medley, Mary R
Nixon, Diane L Porter, James M Rogers, David Schultz, John D.
Smith, and other affiliated entities and individuals, Case No.
20-CI-00985, was removed from the Franklin Circuit Court,
Commonwealth of Kentucky, to the U.S. District Court for Eastern
District of Kentucky on Feb. 3, 2021.
The District Court Clerk assigned Case No. 3:21-cv-00006-GFVT to
the proceeding.
The case alleges education civil rights violations.
The University of Louisville -- http://louisville.edu/-- is a
public research university in Louisville, Kentucky.[BN]
The Plaintiff is represented by:
Jessica Katherine Winters, Esq.
THE WINTERS LAW GROUP LLC
432 S. Broadway, Suite 2B
Lexington, KY 40508
Phone: (859) 619-2134
Email: jwinters@gettylawgroup.com
- and -
Michael A. Tompkins, Esq.
LEEDS BROWN LAW, P.C.
One Old Country Lane, Suite 347
Carle Place, NY 11514-1851
Phone: (516) 873-9550
Fax: (516) 747-5024
Email: mtompkins@leedsbrownlaw.com
The Defendant is represented by:
Alina Klimkina, Esq.
Donna King Perry, Esq.
DINSMORE & SHOHL, LLP - Louisville
101 S. Fifth Street, Suite 2500
Louisville, KY 40202
Phone: (502) 540-2337
Fax: (502) 585-2207
Email: Alina.Klimkina@dinsmore.com
donna.perry@dinsmore.com
URS MIDWEST: Court Denies Bid to Remand Rodriguez Labor Suit
------------------------------------------------------------
In the case, ISRAEL RODRIGUEZ, individually, and on behalf of other
members of the general public similarly situated, and as an
aggrieved employee pursuant to the Private Attorneys General Act
("PAGA"), Plaintiffs v. URS MIDWEST, INC., a Delaware corporation;
UNITED ROAD SERVICES, INC., a Delaware corporation; and DOES 1
through 10, inclusive, Defendants, Case No. 5:20-cv-02365-JWH-SPx
(C.D. Cal.), Judge John W. Holcomb of the U.S. District Court for
the Central District of California denied Rodriguez's Motion to
Remand.
On April 2, 2019, Rodriguez filed his putative class action
Complaint in San Bernardino County Superior Court. On June 12,
2019, Rodriguez filed a First Amended Complaint. He alleges that
the Defendants failed to comply with various provisions of the
California Labor Code. On Dec. 6, 2019, Defendant URS Midwest
served discovery responses identifying that "approximately 299"
employees were "covered employees" during the relevant time
period.
On Nov. 10, 2020, the Defendants removed the action to federal
court. They base their removal on 28 U.S.C. Section 1332(d), which
provides district courts with original subject matter jurisdiction
over class actions in which (1) the amount in controversy exceeds
$5 million; (2) there are at least 100 proposed class members; and
(3) any member of the class "is a citizen of a State different from
any defendant."
The Defendants allege that they determined that the action was
removable based upon the allegations in the FAC and their own
records. Similarly, they explain their calculation of the amount
in controversy for the missed-meal-periods claim. For example,
with respect to Rodriguez's claim for unpaid minimum wages, the
Defendants explain how they calculated the amount in controversy.
The Defendants perform similar calculations for other categories of
damages, and they arrive at a total amount in controversy of
between $6,391,911.05 and $8,024,768.80, which is composed of the
following: (1) unpaid minimum wages ($508,082.42); (2) meal period
claim ($979,714.66 to $1,632,857.76); (3) rest period claim
($979,714.66 to $1,632,857.76); (4) wage statement penalties
($633,000); (5) waiting time penalties ($1,279,322.10); (6)
unreimbursed expenses ($733,695); and (7) attorneys' fees
($1,278,382.21 to $1,604,953.76).
On Dec. 10, 2020, Rodriguez filed the instant Motion.
The parties do not dispute that the amount in controversy
requirement is met nor that the parties are minimally diverse; they
agree that the Court has subject matter jurisdiction if the
Defendants' removal was timely. Rodriguez contends, however, that
the Defendants failed to file within the statutory deadline. As
Rodriguez notes, the Defendants did not remove the action until
well after a year had passed from the filing of the Complaint or
the FAC.
The Defendants argue that the 30-day removal clock did not begin to
run with the filing of either the Complaint or the FAC because both
were "indeterminate" regarding the amount in controversy, and they
were therefore "entitled to remove the case at any time."
Rodriguez responds that the pleadings "provide a basis for
Defendants to ascertain removability." With respect to the amount
in controversy, Rodriguez notes that "the pleadings indicate that
there are at least 101 class members" and that the Complaint and
the FAC state that "the Plaintiff's share of damages, penalties,
and other relief sought in this action does not exceed $75,000."
Judge Holcomb holds that the calculations that the Defendants
perform are significantly more complicated than "multiplying
figures clearly stated in a complaint." Rather, they presumably
had to research relevant figures based upon their own information
to derive the estimated amount that they alleged in the Notice of
Removal. In adopting its "objective baseline rule," the Ninth
Circuit sought to avoid "the spectre of inevitable collateral
litigation over whether the pleadings contained a sufficient
'clue,' whether defendant had subjective knowledge, or whether
defendant conducted sufficient inquiry." Because the Defendants
relied on their own knowledge and investigation to estimate the
amount in controversy, the Judge finds that the removal is timely.
For these reasons, he denied Rodriguez's Motion to Remand.
A full-text copy of the Court's Jan. 27, 2021 Order is available at
https://tinyurl.com/tkd1nu8v from Leagle.com.
VALVE CORP: Monopolizes Game Platform's Market Power, Suit Claims
-----------------------------------------------------------------
Sean Colvin, Everett Stephens, Ryan Lally, Susann Davis, and Hope
Marchionda on behalf of themselves and all others similarly
situated v. Valve Corporation, CD Projekt S.A., CD Projekt, Inc.,
Ubisoft Entertainment S.A., Ubisoft, Inc., Ubisoft L.A., Inc.,
kChamp Games, Inc., Rust, LLC, and Devolver Digital, Judge Inc.,
Case No. 2:21-cv-00801 (C.D. Cal., Jan. 28, 2021) alleges that
Valve abuses the Steam platform's market power by requiring game
developers to enter into a "Most Favored Nations" provision
contained in the Steam Distribution Agreement whereby the game
developers agree that the price of a PC game on the Steam platform
will be the same price the game developers sell their PC games on
other platforms.
Valve Corporation's Steam platform is the dominant platform for
game developers to distribute and sell PC games in the United
States. But the Steam platform does not maintain its dominance
through better pricing than by rival platforms, says the
complaint.
Because of this Most Favored Nations provision, or "MFN," other
platforms are unable to compete on price, thereby insulating the
Steam platform from competition. The MFN has the effect of keeping
prices to consumers high, as price competition by platforms would
cause the prices of PC games sold to consumers to decrease. The MFN
also hinders innovation and suppresses output, as it acts as an
artificial barrier to entry by potential rival platforms and as
higher prices lead to less sales of PC Games, the complaint adds.
The Plaintiffs contend that during the pandemic, PC game purchases
and usage have exploded, as more and more Americans are spending
more and more time at home. This court should stop the Steam
platform's abuse of its market power, prevent game developers from
entering into MFNs with Valve, and order that the Class recover
treble damages, says the suit.
A "MFN" is a "Most Favored Nation" provision in a contract. An MFN
is an agreement between platforms and sellers about the prices that
sellers will charge buyers who purchase through rival platforms.
A "PC game" is a type of computer game played on a personal
computer as opposed to a video game console or mobile d vice.
The Plaintiffs purchase PC games from Defendants on the Steam
platform.
Defendant Valve operates a platform for game developers to sell PC
games to consumers called "Steam." Valve has its principal place of
business in Bellevue, Washington. CD Projekt S.A. is a Polish game
developer and sells PC games through the Steam platform. Ubisoft
Entertainment S.A. is a French game developer and sells PC games
through the Steam platform.[BN]
The Plaintiffs are represented by:
Thomas N. McCormick, Esq.
VORYS, SATER, SEYMOUR AND PEASE LLP
52 East Gay Street, P.O. Box 1008
Columbus, OH 43216-1008
Telephone: (614) 464-6433
Facsimile: (614) 719-6350
E-mail: tnmccormick@vorys.com
VIA QUANDRONNO: Cheng FLSA Suit Seeks Collective Action Status
--------------------------------------------------------------
In the class action lawsuit captioned as CHUNYUNG CHENG and
SHIGUANG CHEN Individually and on Behalf of All Other Employees
Similarly Situated, v. VIA QUANDRONNO LLC, VIA QUADRONNO 88 STREET,
ANTICA BOTTEGA DEL VINO, "JOHN" LAM a/k/a KC, YONG "DOE", and John
Doe and Jane Doe, Case No. e 1:20-cv-08903-LJL (S.D.N.Y.), the
Plaintiff asks the Court to enter an order:
1. granting collective action status, under the Fair Labor
Standards Act ("FLSA");
2. directing the Defendants, within 14 days of the entry of
this Order, to produce an Excel spreadsheet containing
first and last name, last known address with apartment
number (if applicable), the last known telephone numbers,
last known e-mail addresses, WhatsApp, WeChat ID and/or
FaceBook usernames (if applicable), and work location,
dates of employment and position of ALL current and former
non-exempt and non-managerial employees employed at any
time from October 23, 2017 (three years prior to the
filing of the Complaint) to the date when the Court so-
orders the Notice of Pendency and Consent to Join Form or
the date when Defendants provide the name list, whichever
is later;
3. authorizing that notices of this matter be disseminated,
in any relevant language via mail, email, text message,
website or social media messages, chats, or posts, to all
members of the putative class within 21 days after receipt
of a complete and accurate Excel spreadsheet with
affidavit from the Defendants certifying that the list is
complete and from existing employment records;
4. authorizing an opt-in period of 90 days from the day of
dissemination of the notice and its translation;
5. authorizing the Plaintiffs to publish the full opt-in
notice on Plaintiffs' counsel's website;
6. authorizing the publication of a short form of the notice
may also be published to social media groups specifically
targeting the English, Chinese, Spanish speaking immigrant
worker community;
7. directing the Defendants to post the approved Proposed
Notice in all relevant languages, in a conspicuous and
unobstructed locations likely to be seen by all currently
employed members of the collective, and the notice shall
remain posted throughout the opt-in period, at the
workplace;
8. directing the Plaintiffs to publish the Notice of
Pendency, in an abbreviated form to be approved by the
Court, at Defendants' expense by social media and by
publication in newspaper should Defendants fail to furnish
a complete Excel list or more than 20% of the Notice be
returned as undeliverable with no forwarding address to be
published in English and Chinese, and Spanish; and
9. equitable tolling on the statute of limitation on this
suit be tolled for 90 days until the expiration of the
Opt-in Period.
Via Quandronno is an Italian restaurant on the Upper East Side of
New York City.
A copy of the notice of plaintiffs' motion for conditional
collective certification dated Jan. 28, 2020 is available from
PacerMonitor.com at https://bit.ly/3q7HarP at no extra charge.[CC]
The Plaintiffs are represented by:
Hui Chen, Esq.
HUI CHEN AND ASSOCIATES, P.L.L.C.
136-20 38th Ave., Suite 9E
Flushing, NY 11354
Telephone: (718) 463-2666
E-mail: hui.chen@alum.cardozo.yu.edu
VIKTOR BENES: Faces Cocka Wage-and-Hour Suit in Cal. State Court
----------------------------------------------------------------
Walter Cocka, an individual v. Viktor Benes Continental Pasteries,
Inc., a California Corporation, and JOHN/JANE DOES 1-100 inclusive,
Case No. 21SMCV00058 (Cal. Super., Los Angeles Cty., Jan. 12, 2021)
is brought on behalf of the Plaintiff and all others similarly
situated, arising from the Defendants' alleged violations of the
California Labor Code and the California Business and Professions
Code by failing to pay overtime, provide accurate wage statements,
provide rest and meal periods, pay all wages due, permit inspection
of employee records, and by engaging in unfair business practices.
From April 2018 through July 4, 2020, Mr. Cocka was an employee of
Defendants at their Manhattan Beach location in California whose
job duties primarily consisted of non-exempt worker job duties,
such as baking and product ordering.
Viktor Benes Continental Pasteries, Inc. is in the business of
selling baked cakes, cookie, pastries, and danishes.[BN]
The Plaintiff is represented by:
Gregory P. Wong, Esq.
Tiara Gose, Esq.
BARKHORDARIAN LAW FIRM, PLC
6047 Bristol Parkway, Second Floor
Culver City, CA 90230
Telephone: (323) 450-2777
E-mail: Tiara@barklawfirm.com
VISA INC: Class Certification Bid in Interchange MDL Pending
------------------------------------------------------------
Visa Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on January 29, 2021, for the quarterly
period ended December 31, 2020, that on December 18, 2020, the
plaintiffs purporting to act on behalf of the putative Injunctive
Relief Class moved for class certification in Interchange
Multidistrict Litigation.
Visa Inc. operates as a payments technology company worldwide. The
company facilitates commerce through the transfer of value and
information among consumers, merchants, financial institutions,
businesses, strategic partners, and government entities. Visa Inc.
was incorporated in 2007 and is headquartered in San Francisco,
California.
VMSB LLC: Morel Suit Seeks Unpaid Wages Under FLSA & FMWA
---------------------------------------------------------
ALBERTO MOREL and JOSE VIAMONTE, for themselves and on behalf of
those similarly situated v. VMSB, LLC, d/b/a GIANNI'S and d/b/a
CASA CASUARINA, a Florida Limited Liability Company, Case No.
1:21-cv-20380-XXXX (S.D. Fla., Jan. 28, 2021), claims for unpaid
wages under the Fair Labor Standards Act, the Florida Constitution,
and the Florida Minimum Wage Act.
The Plaintiff also seeks declaratory relief, judgment against the
Defendant as to liability, to recover unpaid back wages, an
additional equal amount in liquidated damages, and to recover
reasonable attorneys' fees and costs.
The Defendant in this case allegedly violated the FLSA and FMWA by
failing to pay the Plaintiffs and other similarly situated Server's
Assistants and Food Runners the proper minimum wage and overtime
compensation for all hours worked. This action is intended to
include each and every hourly-paid Server's Assistants and Food
Runners who worked for the Defendant at any time within the past
three years as to claims for overtime, and five years as to claims
for minimum wages says the complaint, the suit says.[BN]
The Plaintiffs are represented by:
Angeli Murthy, Esq.
MORGAN & MORGAN, P.A.
8151 Peters Road, Suite 4000
Plantation, FL 33324
Telephone: (954) 318-0268
Facsimile: (954) 327-3016
E-Mail: Amurthy@forthepeople.com
WALMART INC: Smith Suit Removed to S.D. Florida
-----------------------------------------------
The case captioned as Rodger Smith, Individually and on Behalf of
All Others Similarly Situated v. Walmart, Inc., Case No.
CACE-20-021823 was removed from the Seventeenth Judicial Circuit of
Florida to the U.S. District Court for Southern District of Florida
on Feb. 2, 2021.
The District Court Clerk assigned Case No. 0:21-cv-60265-XXXX to
the proceeding.
The case alleges personal injury violations.
Walmart Inc. -- https://corporate.walmart.com/ -- is an American
multinational retail corporation that operates a chain of
hypermarkets, discount department stores, and grocery stores from
the United States, headquartered in Bentonville, Arkansas.[BN]
The Plaintiff is represented by:
Joel L. Oster, Esq.
OSTER LAW FIRM
22052 W. 66th St #192
Shawnee, KS 66226
Phone: (913) 206-7575
Email: joster@telladf.org
- and -
Lydia Sturgis Zbrzeznj, Esq.
Nicholas Thaddeus Zbrzeznj, Esq.
SOUTHERN ATLANTIC LAW GROUP, PLLC
99 6th St SW
Winter Haven, FL 33880
Phone: (863) 656-6672
Email: Lydia@southernatlanticlaw.com
nick@southernatlanticlaw.com
The Defendant is represented by:
Cristina Isabel Calvar, Esq.
WINSTON, STRAWN LLP
3161 Michelson Drive
200 Park Avenue
New York, NY 10166
Fax: (212) 294-5331
Email: ccalvar@winston.com
WEBULL FINANCIAL: Faces Suit Over GameStop Trading Restrictions
---------------------------------------------------------------
On the evening of January 28, 2021 shortly before midnight, a class
action was filed against Webull Financial LLC by Siri & Glimstad
LLP on behalf of a class of individuals that suffered losses due to
Webull's actions to restrict trading on its online stock trading
platform. Webull, on January 28, 2021, prevented its 11 million
customers from trading various stocks that had been rising earlier
in the day, including those of GameStop (GME), AMC Entertainment
(AMC) and Koss (KOSS).
Webull's move has prompted many investors and pundits to declare
that the market is "rigged" against retail investors. The class
action complaint, alleges that "Webull's actions occurred in the
midst of a rise in those companies' stock share prices and thereby
deprived its customers, retail investors, of the ability to invest
in the open-market and manipulate the open-market for the effected
stock." Webull's CEO denies this allegation and has blamed its
clearing firm, Apex, for requiring these restrictions on trading
due to regulatory capital requirements.
The class action complaint was filed by the attorneys Aaron Siri,
Mason Barney and Elizabeth Brehm of Siri & Glimstad LLP.
Filed with the UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF
NEW YORK Case # 1:21-cv-00799 [GN]
WEBULL FINANCIAL: Restricts Buying Stocks From Platform, Suit Says
------------------------------------------------------------------
ROYAL WILLIAMS, individually and on behalf of all others similarly
situated v. WEBULL FINANCIAL LLC, Case No. 1:21-cv-00799-DLC
(S.D.N.Y., Jan. 28, 2021) alleges that on January 28, 2021, Webull
purposefully, willfully, and knowingly removed the ability to
purchase certain stocks issued by several companies from its
trading platform, but let its users sell that stock.
According to the complaint, these stocks include:
a. GameStop Corp. ("GameStop" or "GME"), which trades under
the ticker symbol GME;
b. AMC Entertainment Holdings Inc. ("AMC Entertainment" or
"AMC"), which trades under the ticker symbol AMC;
c. Koss Corporation ("Koss"), which trades under the ticker
symbol KOSS;
d. Nokia Oyj ("Nokia" or "NOK"), which trades under the
ticker symbol NOK;
e. Naked Brand Group Ltd ("Naked Brand" or "NAKD"), which
trades under the ticker symbol NAKD;
f. Sundial Growers Inc ("Sundial Growers" or "SNDL"), which
trades under the ticker symbol SNDL; and
g. Castor Maritime Inc ("Castor Maritime" or "CTRM"), which
trades under the ticker symbol CTRM.
Webull's actions occurred in the midst of a rise in those
companies' stock share prices and thereby deprived its customers,
retail investors, of the ability to invest in the open-market and
manipulate the open-market for the effected stock, the complaint
says.
Webull allegedly breached its fiduciary duties to Plaintiff and
Class members by failing to disclose that its platform was going to
remove the Blocked Stocks purchases in a timely manner. Webull's
conduct has caused Plaintiff and Class members' harm, losses, and
damages and continues to expose them to harm because Webull
continues to breach its fiduciary duties. These losses reflect
damages to Plaintiff and Class members in an amount to be
determined at trial or separate proceedings as necessary, the suit
says.
Plaintiff Royal Williams is, and at all relevant times was, a
citizen of Florida.
Webull Financial is an online brokerage firm.[BN]
The Plaintiff is represented by:
Aaron Siri, Esq.
Mason Barney, Esq.
Elizabeth A. Brehm, Esq.
SIRI & GLIMSTAD LLP
200 Park Avenue, 17th Floor
New York, NY 10166
Telephone: (212) 532-1091
E-mail: aaron@sirillp.com
mbarney@sirillp.com
ebrehm@sirillp.com
WEBULL FINANCIAL: Sanchez Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Webull Financial LLC.
The case is styled as Christian Sanchez, on behalf of himself and
all others similarly situated v. Webull Financial LLC, Case No.
1:21-cv-00930 (S.D.N.Y., Feb. 3, 2021).
The lawsuit is brought over alleged violations of the Americans
with Disabilities Act.
Webull -- https://www.webull.com/ -- offers commission free trading
through their mobile app, desktop, and web platforms.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Floor
Brooklyn, NY 11201
Phone: (929) 575-4175
Fax: (929) 575-4195
Email: joseph@cml.legal
WEINERT ENTERPRISES: Denial of Class Cert. in Anderson Affirmed
---------------------------------------------------------------
The U.S. Court of Appeals for the Seventh Circuit affirms the
denial of class certification motion in the lawsuit entitled
RICHARD J. ANDERSON, Plaintiff-Appellant v. WEINERT ENTERPRISES,
INC., Defendant-Appellee, Case No. 20-1030 (7th Cir.).
Anderson worked in northeast Wisconsin for a local roofing company
called Weinert Enterprises. Following a dispute with the company
over how Weinert calculated overtime wages, Anderson brought suit
in federal court in Wisconsin. Anderson sued Weinert alleging that
its policy violated the Fair Labor Standards Act and Wisconsin
labor laws.
After his collective action under the Fair Labor Standards Act
failed to attract enough employee support, Anderson withdrew the
federal claim. But he still sought to pursue Wisconsin state law
claims as a class action. The district court determined that
Anderson's proposed class would include no more than 37 members
and, after finding that joinder of those 37 members was not
impracticable, denied the class certification motion for failing to
meet numerosity requirement of Rule 23 of the Federal Rules of
Civil Procedure.
Mr. Anderson now appeals.
The Seventh Circuit's cases have recognized that "a 40-member class
is often regarded as sufficient to meet the numerosity
requirement," notes Circuit Judge Michael Yale Scudder, Jr.,
writing for the Panel, citing Orr v. Shicker, 953 F.3d 490, 498
(7th Cir. 2020). But a class of 40 or more does not guarantee
numerosity.
Judge Scudder explains that the key numerosity inquiry under Rule
23(a)(1) is not the number of class members alone but the
practicability of joinder. Answering that question requires
evaluation of "the nature of the action, the size of the individual
claims, and the location of the members of the class or the
property that is the subject matter of the dispute," quoting 7A C.
WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE Section 1762 (3d
ed.). Though Anderson's putative class of 37 comes close to
crossing the benchmark numerosity threshold, a closer look at the
circumstances of the likely class members and the nature of the
claim at issue under Wisconsin law persuades the Panel that Rule
23(a)(1) is not satisfied.
The district court applied this exact framework and determined that
Anderson failed to show it would be impracticable to join
approximately 37 class members, Judge Scudder holds. In doing so,
the court considered the proposed class' geographic dispersion,
overall size of the class, small dollar amounts involved with each
individual claim, and Anderson's ability to easily contact the
class members. Judge Scudder points out that the Panel cannot say
the district court abused its discretion in deciding that these
factors weighed against certifying the class.
The Panel also cannot say that the district court's decision to
exclude any seasonal employees Weinert hired in 2019 reflected
error. To be sure, the district court may have been mistaken in
labeling these 2019 hires as 'future class members' instead of
'unidentified class members,' Judge Scudder writes. Regardless,
Anderson, who shoulders the burden of illustrating the propriety of
class certification, failed to present the court with any
definitive evidence showing that Weinert hired seasonal employees
in 2019.
This shortcoming is especially notable given that the district
court did not decide the class certification motion until August
2019, well into Weinert's typical hiring season, Judge Scudder
notes. It is true that Anderson showed that Weinert hired between 8
and 12 seasonal employees each of the previous three years. And
while the district court reasonably could have inferred from this
that Weinert would take on a similar number of employees in 2019,
it did not abuse its discretion by declining to make this inference
in the face of Anderson's sparse evidentiary showing.
Anderson claims that any failure of proof should be attributed to
Weinert, asserting that the company failed to update its initial
discovery disclosures. Anderson did not raise this point in the
district court, though, Judge Scudder finds. Nor does the record
indicate he sought this information from Weinert or requested the
district court's assistance in obtaining any discovery. As the
party with the burden of proof, Anderson needed to attend
diligently in the district court to the demands of Rule 23.
Judge Scudder also opines, among other things, that the obligation
imposed by Rule 23(a) remains: a plaintiff seeking to certify a
class must show that joinder would be impracticable, and Anderson
failed to make this showing. He never demonstrated that naming as
plaintiffs each of the predominantly local, current, and former
employees of a northeast Wisconsin roofing company would be
impracticable. Judge Scudder points out that the district court did
not abuse its discretion in evaluating the practicability of
joinder based on the evidence before it.
The Panel's holding imposes no immovable benchmarks for meeting
Rule 23(a)'s numerosity requirement, Judge Scudder holds. Though
the Appellate Court recognized that 40 class members will often be
enough to satisfy numerosity, in no way is that number etched in
stone. The controlling inquiry remains the practicability of
joinder. Some classes may involve such large numbers of potential
members that volume alone will make joinder impracticable. In other
circumstances, it may be that smaller classes than the one proposed
here will face such high barriers to joinder that the
impracticability required by Rule 23(a)(1) will exist. The inquiry
is fact and circumstance dependent, and future cases will require
this careful line drawing, Judge Scudder adds.
With this closing observation, the Appellate Court affirms.
A full-text copy of the Court's Opinion dated Jan. 28, 2021, is
available at https://tinyurl.com/2zfoes42 from Leagle.com.
WELLPATH LLC: Court Denies Bid to Dismiss Amended Hall Class Suit
-----------------------------------------------------------------
Judge George Caram Steeh of the U.S. District Court for the Eastern
District of Michigan, Southern Division, denied the Defendant's
motion to dismiss the case, CHERYL HALL, BRAD LaFUZE, and MARTELL
GRESHAM, Plaintiff v. WELLPATH, Defendant, Case No. 20-CV-10670
(E.D. Mich.).
The Plaintiffs filed their amended class action complaint on May 4,
2020, against the Defendant. Wellpath is a private, for-profit
administrator of health care services, including prescription
medication services and utilization management services, to 25
county jails in Michigan, as well hundreds more throughout the
United States. The named Plaintiffs were incarcerated as pretrial
detainees in the Grand Traverse County Jail and the Wayne County
Jail.
The Plaintiffs accuse Wellpath of causing "systematic and
unreasonable interruption, discontinuation, denial, and/or delay of
prescribed psychotropic medications to detainees with previously
diagnosed, serious mental health care conditions." They allege
that they suffered avoidable serious mental health crises during
the initial stages of their incarceration as a result of Wellpath's
corporate policies relating to the administration of prescription
mental health medications.
The amended complaint avers the following counts: (1)
"Fifth/Fourteenth Amendments (as to pretrial-detainees), Monell
Claim, Denial of Due Process, Deliberate Indifference to Known
Serious Medical Needs" under 42 U.S.C. Sections 1983 and 1988; (2)
"Monell Claim, Eighth Amendment (as to convicted detainees), Cruel
and Unusual Punishment, Deliberate Indifference to Known Serious
Medical Needs" under 42 U.S.C. Sections 1983 and 1988; (3)
"Substantive Due Process Violation, State Created Danger" under 42
U.S.C. Sections 1983 and 1988; (4) "Fourteenth Amendment, Denial of
Procedural Due Process without Meaningful Opportunity to Challenge
Determination or be Heard Regarding Deprivation" under 42 4 U.S.C.
Sections 1983 and 1988; and (5) "Common Law Negligence and Gross
Negligence."
In the request for relief, the Plaintiffs seek an order certifying
one or more classes pursuant to Fed. R. Civ. P. 23. They seek a
declaratory order that Wellpath violated the constitutional rights
of the Plaintiffs and the class, and an order declaring Wellpath
liable for each cause of action. They further seek compensatory
damages, punitive and exemplary damages, attorney fees and costs,
injunctive relief, consequential damages and any other relief the
court deems fair and equitable.
Wellpath filed a motion to dismiss Counts I, II, and V which was
referred to the magistrate judge for a report and recommendation.
Magistrate Judge Patricia Morris issued a Report recommending that
the motion to dismiss be granted as to the claims for injunctive
relief and denied in all other respects. Wellpath and the
Plaintiffs filed timely objections to the Report and Recommendation
("R&R"). Each party responded to the other's objections.
Wellpath states three objections and the Plaintiffs state four
objections to the R&R.
The Defendant's first objection is that the Magistrate Judge did
not analyze or address the Defendant's written policies before
concluding that the Plaintiffs stated a claim of deliberate
indifference. Judge Steeh opines that the Defendant's arguments
about the sufficiency of evidence and the legality of its policies
are better suited to a motion for summary judgment. He overrules
tje Defendant's first objection to the R&R and concludes that the
Plaintiffs have stated causes of action for deliberate indifference
to their known serious medical needs.
Wellpath's second objection is that the R&R erred in not dismissing
the Plaintiffs' Eighth Amendment Claim. It argues that Count II of
the First Amended Complaint, asserting a claim of deliberate
indifference under the Eighth Amendment, should have been
dismissed. However, Count II alleges a Monell claim for violations
of convicted detainees' rights under the Eighth Amendment. Named
plaintiff Mr. Lafuze is described as having been incarcerated as
both a pre-trial detainee and a convicted detainee, as such he is
entitled to the protections of the Eighth Amendment. Judge Steeh
opines that the Magistrate Judge did not err and overrules the
Defendant's objection.
Wellpath's third objection is that the R&R erred in concluding that
the medical malpractice pre-suit requirements in federal court are
procedural and not substantive and are not a basis for dismissal
for failing to comply. Following a thorough analysis, the
Magistrate Judge concluded that the affidavit of merit requirement
is procedural because a failure to file an affidavit results in the
action being dismissed without prejudice. The action may then be
re-filed within the limitations period. Therefore, the requirement
of the affidavit does not alter the elements of the cause of action
and is not substantive.
Judge Steeh is persuaded that the Magistrate Judge correctly
concluded that the affidavit of merit required by state law is
procedural and is not required for medical malpractice claims
sounding in negligence or gross negligence brought before the Court
under diversity jurisdiction. Hence, the Defendant's objection is
overruled.
The Plaintiffs first object to the recommendation that their
request for injunctive relief is rendered moot because each of the
named plaintiffs was eventually released from the county jail and
is no longer under the medical care of Wellpath employees.
Judge Steeh sustained the Plaintiffs' first objection. He finds
that the Plaintiffs, the proposed class representatives, have
adequately alleged a basis for seeking injunctive relief based on
contemporaneous and recurring violations by Wellpath for purposes
of surviving a motion to dismiss. The Plaintiffs' First Amended
Complaint claims that the alleged violations were recurring and
affecting inmates in every county jail where Wellpath operates.
The essence of the inherently transitory exception is uncertainty
about whether a claim will remain alive for any given plaintiff
long enough for a district court to certify the class.
The Plaintiffs object to the dismissal of the claim for injunctive
relief by Lafuze and Gresham in particular because they are repeat
offenders who suffer from mental illness, have been incarcerated in
county jails on numerous occasions, and are likely to experience
recurring violations by Wellpath. They contend it is reasonable to
expect that they will again be incarcerated in a county jail and
impacted by Wellpath's policies, practices and customs. Having
already found that the Plaintiffs may pursue their claims for
injunctive relief, Judge Steeh does not need to further address the
objection.
The Plaintiffs' third objection is that if the Court determines
that the named Plaintiffs' claims are insufficient to represent the
class in pursuing injunctive relief, the correct course of action
is to dismiss their claims for injunctive relief without prejudice,
thereby providing them with an opportunity to move to amend and
cure by adding a named Plaintiff whose injunctive claims are not
moot this objection is also moot in light of the Court's finding
that the Plaintiffs may proceed with their request for injunctive
relief.
Judge Steeh holds that the objection is moot in light of his
finding that the Plaintiffs may proceed with their request for
injunctive relief.
Finally, the Plaintiffs take issue with the Magistrate Judge's
finding that their negligence and gross negligence claims in Count
V necessarily sound in medical malpractice. They point out that in
each of its contracts with county governments, Wellpath expressly
states that it is not a licensed medial provider or professional.
The Magistrate Judge concluded that whether Wellpath's
"determinations were made in a sweeping manner" pursuant to their
policies or by individual medical staff, the propriety of
continuing or denying prescription medications lies beyond the ken
of the jury." Judge Steeh agrees that the conclusion and the
analysis that led to it is sound. Of course, should the evidence
support a contrary conclusion, Fed. R. Civ. P. 54(b) provides that
an order or decision other than a final judgment "may be revisited
at any time before the entry of a judgment adjudicating all the
claims and all the parties' rights and liabilities." Accordingly,
he overruled the Plaintiffs' objection.
Based on the foregoing, Judge Steeh accepted in part and rejected
in part the R&R, and denied the Defendant's motion to dismiss.
A full-text copy of the Court's Jan. 27, 2021 Opinion & Order is
available at https://tinyurl.com/3bx4a5qz from Leagle.com.
WELLS FARGO: D'Addio Sues Over Client Associates' Unpaid Overtime
-----------------------------------------------------------------
MARCUS D'ADDIO, individually and on behalf of all others similarly
situated v. WELLS FARGO CLEARING SERVICES, LLC (formerly known as
WELLS FARGO ADVISORS LLC) doing business as WELLS FARGO ADVISORS,
Case No. 4:21-cv-00054 (E.D. Mo., Jan. 13, 2021) seeks declaratory
relief and unpaid overtime pay, liquidated damages, fees and costs,
and any other remedies to which the Plaintiff and the Class members
may be entitled pursuant to the Fair Labor Standards Act and the
Missouri Minimum Wage Law.
The Plaintiff was employed by the Defendant as a client associate
from approximately March 2011 to May 2020 and worked in Defendant's
office in Frontenac, Missouri.
Wells Fargo Clearing Services, LLC offers nationwide financial
advisory, brokerage, asset management and other financial services.
[BN]
The Plaintiff is represented by:
Anthony M. Pezzani, Esq.
Emily W. Kalla, Esq.
ENGELMEYER & PEZZANI, LLC
1321 N. Outer Forty Road, Suite 300
Chesterfield, MO 63017
Telephone: (636) 532-9933
Facsimile: (314) 863-7793
E-mail: tony@epfirm.com
emily@epfirm.com
- and -
Jason T. Brown, Esq.
Nicholas Conlon, Esq.
BROWN, LLC
111 Town Square Place, Suite 400
Jersey City, NJ 07310
Telephone: (877) 561-0000
Facsimile: (855) 582-5297
E-mail: jtb@jtblawgroup.com
nicholasconlon@jtblawgroup.com
WILLIAM DOUGLAS: Carpenter Suit Removed to W.D. North Carolina
--------------------------------------------------------------
The case styled SUSAN K. CARPENTER, Trustee of the H. Joe King, Jr.
Revocable Trust, on behalf of itself and all others similarly
situated v. WILLIAM DOUGLAS MANAGEMENT, INC. and NEXTLEVEL
ASSOCIATION SOLUTIONS, INC. (d/b/a HOMEWISEDOCS.COM), Case No. 20
CVS 8415, was removed from the North Carolina Superior Court for
Mecklenburg County to the U.S. District Court for the Western
District of North Carolina on January 13, 2021.
The Clerk of Court for the Western District of North Carolina
assigned Case No. 3:21-cv-00019-RJC-DCK to the proceeding.
The lawsuit purports to assert individual and putative class claims
against the Defendants for violations of the Transfer Fee Covenant
Prohibition Act, the North Carolina Unfair and Deceptive Trade
Practices Act, and the North Carolina Debt Collection Act, as well
as negligent misrepresentation, unjust enrichment, civil
conspiracy, and declaratory judgment for collecting the fees
Plaintiff characterizes as unlawful transfer fees.
William Douglas Management, Inc. provides property management and
financial services.
HomeWiseDocs.com is the real estate industry's community
association escrow, closing and document service company. [BN]
The Plaintiff is represented by:
Steven A. Meckler, Esq.
Frederick M. Thurman, Jr., Esq.
SHUMAKER, LOOP & KENDRICK, LLP
101 South Tryon Street Suite 2200
Charlotte, NC 28280
Telephone: (704) 375-0057
Facsimile: (704) 332-1197
E-mail: smeckler@shumaker.com
fthurman@shumaker.com
- and -
Philip M. Oliss, Esq.
Alexander W. Prunka, Esq.
JONES DAY
North Point 901 Lakeside Avenue
Cleveland, OH 44114
Telephone: (216) 586-3939
Facsimile: (216) 579-0212
E-mail: poliss@jonesday.com
aprunka@jonesday.com
WYNNDALCO ENTERPRISES: Court Denies Bid to Stay Citizens Class Suit
-------------------------------------------------------------------
In the case, CITIZENS INSURANCE COMPANY OF AMERICA, Plaintiff v.
WYNNDALCO ENTERPRISES, LLC, DAVID ANDALCIO, JOSE FLORES, and
MELISSA THORNLEY, DEBORAH BENJAMIN KOLLER, JOSUE HERRERA, MARIO
CALDERON, and JENNIFER ROCIO, individually and on behalf of all
others similarly situated, Defendants, Case No. 20 C 3873 (N.D.
Ill.), Judge John Z. Lee of the U.S. District Court for the
Northern District of Illinois, Eastern Division, denied the
Defendants' motion to stay the case pending those courts'
resolution of certain factual issues that the Defendants say touch
upon the action.
In the insurance coverage dispute, Citizens seeks a declaratory
judgment that it has no duty to defend or indemnify Wynndalco in
connection with two class action lawsuits pending in other courts.
Citizens filed the action for a declaratory judgment that it has no
duty to defend or indemnify under a Business Owners Policy issued
to Wynndalco in connection with two putative class actions suits
pending in other courts. The underlying cases are captioned
Thornley v. CDW-Government, LLC, No. 20 CH 4346 (Cook Cty. Cir. Ct.
filed May 27, 2020); and Calderon v. Clearview AI, Inc., No. 20 CV
1296 (S.D.N.Y. filed Feb. 13, 2020).
Effective from Oct. 2, 2019, to Oct. 2, 2020, the Policy provides
liability coverage for Wynndalco's business, including duties to
defend and indemnify. But a provision of the Policy entitled
"Distribution Of Materials In Violation Of Statutes" excludes
liability coverage for the following: "Bodily injury, property
damage, or personal and advertising injury arising directly or
indirectly out of any action or omission that violates or is
alleged to violate: (1) The Telephone Consumer Protection Act,
including any amendment of or addition to such law; (2) The
CAN-SPAM Act of 2003, including any amendment of or addition to
such law; (3) The Fair Credit Reporting Act, and any amendment of
or addition to such law, including the Fair and Accurate Credit
Transactions Act; or (4) Any other laws, statutes, ordinances, or
regulations, that address, prohibit, or limit the printing,
dissemination, disposal, collecting, recording, sending,
transmitting, communicating or distribution of material or
information."
Citizens contends that the Exclusion applies to the underlying
class action lawsuits for which Wynndalco seeks insurance coverage.
The underlying class actions allege that Wynndalco violated the
Illinois Biometric Information Privacy Act ("BIPA"), which
prohibits the collection, retention, and disclosure of "biometric
identifiers," such as facial scans, or "biometric information,"
meaning as "any information based on" a biometric identifier.
In particular, each case centers around a secretive technology
created by a company called Clearview AI, Inc. that combines a
database of over three billion facial scans, amassed by "scraping"
photographs from the internet, and a facial recognition
application, so as to enable the end-user to identify unknown
persons by comparing their facial scan to those included in
Clearview's database. As for Wynndalco, the cases each allege that
it operated as Clearview's Illinois-based agent by purchasing
Clearview's technology and then reselling or licensing it to law
enforcement agencies, whether directly or through another
intermediary called CDW-Government, LLC.
Among other defendants, the Calderon plaintiffs claim that
Wynndalco violated the BIPA by capturing, collecting, receiving,
storing, disclosing, and/or using biometric identifiers and
biometric information, without complying with the statutory
requirements, in the course of its agency relationship with
Clearview. The Thornley plaintiffs also claim that Wynndalco
violated the BIPA, based on its "selling, leasing, trading, or
otherwise profiting from their biometric identifiers or biometric
information."
Additionally, the Thornley plaintiffs bring common law claims of
unjust enrichment and invasion of privacy against Wynndalco. The
unjust enrichment count asserts that Wynndalco "unjustly benefited
from its publication of the Plaintiffs' and the Class' biometric
identifiers and biometric information." Similarly, the invasion of
privacy count declares that Wynndalco's "conduct in publishing and
exploiting the Plaintiffs' and the Class's biometric identifiers
and biometric information constituted an unauthorized intrusion
into their seclusion" and "was offensive and objectionable."
Wynndalco reports that the underlying class actions are each in the
pleading and early discovery stages. In the meantime, Wynndalco
and two of its executives, David Andalcio (its founder and CEO) and
Jose Flores (its COO), move to stay the case until certain "factual
issues" whose determination they say will impact the Court's
coverage decision have been resolved in those actions.
The Defendants raise several arguments in favor of a stay. First
and foremost, they contend that resolving the coverage dispute
would require the Court to determine two questions of ultimate fact
on which the underlying actions hinge: (1) "whether Wynndalco was a
government contractor, and therefore exempted under BIPA"; and (2)
"whether Wynndalco 'possessed' biometric information."
The argument, however, suffers from several flaws, Judge Lee holds.
He says while the questions of fact that the Defendants identify
certainly go to the heart of Wynndalco's liability in the Thornley
and Calderon lawsuits, he need not resolve either of them to
determine whether those lawsuits trigger Citizens' duty to defend.
To determine whether Citizens has a duty to defend, he need only
ask whether the allegations of the Thornely or Calderon complaints,
if proven, would establish an injury covered by the Policy--i.e.,
one that falls outside the scope of the Exclusion.
The Defendants' second argument fares no better. Reading the
Exclusion to be "limited to statutory violations," the Defendants
suggest that it does not apply to the common law claims brought
against Wynndalco in the Thornley action. But this line of
reasoning goes only to the merits of one of the claims raised in
the case--i.e., whether Citizens has a duty to defend Wynndalco in
connection with the Thornley action--not whether the Court must
decide an issue of ultimate fact "that could bind the parties to
the underlying litigation" to get there. For the reasons
discussed, Judge Lee holds that the Defendants fail to show that it
must.
The Defendants' remaining arguments are equally meritless. The
task of answering the complaint in the case does not amount to a
"dress rehearsal" for the underlying cases. Finally, the
possibility that the Thornley plaintiffs may yet bring "new claims"
has no bearing on whether the claims already brought trigger
Citizens' duty to defend.
In sum, because Citizens' declaratory judgment action "presents a
question distinct from the issues raised" in the underlying
Thornley and Calderon class actions, to which an answer "will serve
a useful purpose in clarifying the legal obligations and
relationships among the parties," Judge Lee holds that a stay is
unwarranted. Accordingly, he denied the Defendants' motion to
stay.
A full-text copy of the Court's Jan. 27, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/yb8hf2qt from
Leagle.com.
XILINX INC: AMD Merger Related Suits Underway
---------------------------------------------
Xilinx, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on January 28, 2021, for the quarterly
period ended January 2, 2021, that the company is facing several
suits including class action suits related to its merger with
Advanced Micro Devices, Inc. (AMD).
On October 27, 2020, the Company announced that it had entered into
an Agreement and Plan of Merger, dated October 26, 2020 with
Advanced Micro Devices, Inc., a Delaware corporation, and Thrones
Merger Sub, Inc., a wholly-owned subsidiary of AMD (Merger Sub),
under which, subject to the satisfaction or (to the extent
permissible) waiver of the conditions set forth therein, Merger Sub
will merge with and into the Company, and the Company will survive
the merger as a wholly-owned subsidiary of AMD.
On December 7, 2020, a purported stockholder of the Company filed a
complaint in the United States District Court for the Northern
District of California against the Company and the members of its
board of directors (Stein v. Xilinx, Inc., et al., Case No.
5:20-cv-08637). The complaint alleges that the registration
statement issued in connection with the Merger omitted material
information in violation of Sections 14(a) and 20(a) of the
Securities Exchange Act of 1934, Rule 14a-9 thereunder and SEC
Regulation G, rendering the registration statement false and
misleading.
Specifically, the complaint alleges that the registration statement
failed to disclose material information regarding AMD's and the
Company's financial projections and Credit Suisse's discounted cash
flow analyses of the Company and AMD.
The complaint seeks an order: enjoining the Merger unless and until
additional disclosures are issued; rescinding the Merger, to the
extent it closes; awarding damages; awarding costs, including
attorneys' fees, expert fees and expenses; and awarding such other
relief as the court deems proper.
On December 11, 2020, a purported stockholder of the Company filed
a putative class-action complaint in the New York Supreme Court
against the Company, the members of its board of directors, AMD and
Merger Sub (Nunez v. Xilinx, Inc., et al., Case No. 656971/2020).
The complaint alleges that the Company's board of directors
breached their fiduciary duties by entering into the Merger,
agreeing to purportedly preclusive deal protection terms and
engaging in an allegedly flawed process that did not involve an
adequate market check or approval by a committee of disinterested
and independent directors.
The complaint also alleges that the Company's board of directors
"caused to be filed" the registration statement issued in
connection with the Merger that purportedly omitted material
information with respect to the Merger. The registration statement
allegedly omits information regarding the sale process, AMD's and
the Company's financial projections, certain details regarding the
financial analyses performed by each of Morgan Stanley, Bank of
America, Credit Suisse and DBO and certain details regarding
compensation for Morgan Stanley. Finally, the complaint alleges
that the Company and AMD aided and abetted the Company's board of
directors in their breach of fiduciary duties.
The complaint seeks certification of a class action, injunctive
relief enjoining the Merger, damages and costs, among other
remedies.
On December 11, 2020, a purported stockholder of the Company filed
a complaint in the United States District Court for the District of
Colorado against the Company and the members of its board of
directors (Hale v. Xilinx, Inc., et al., Case No. 1:20-cv-03629).
The complaint raises federal securities disclosure claims and
alleges, among other things, that the registration statement issued
in connection with the Merger omitted material information with
respect to the Merger, including information regarding AMD's and
the Company's financial projections, certain details regarding the
financial analyses performed by Morgan Stanley and Bank of America,
and certain details regarding compensation for Morgan Stanley.
The complaint seeks injunctive relief enjoining the Merger, damages
and costs, among other remedies.
On December 15, 2020, a purported stockholder of the Company filed
a complaint in the United States District Court for the Southern
District of New York against the Company, the members of its board
of directors, AMD and Merger Sub (Shumacher v. Xilinx, Inc., et
al., Case No. 1:20-cv-10595).
The complaint raises federal securities disclosure claims and
alleges, among other things, that the registration statement issued
in connection with the Merger omitted material information with
respect to the Merger, including information regarding AMD's and
the Company's financial projections, certain details regarding the
financial analyses performed by Morgan Stanley and Bank of America,
and certain details regarding compensation for Morgan Stanley.
The complaint seeks injunctive relief enjoining the merger, damages
and costs, among other remedies.
On December 18, 2020, a purported stockholder of the Company filed
a complaint in the United States District Court for the Southern
District of New York against the Company and the members of its
board of directors (Achterberg v. Xilinx, Inc., et al., Case No.
1:20-cv-10715).
The complaint raises federal securities disclosure claims and
alleges, among other things, that the registration statement issued
in connection with the Merger omitted material information with
respect to the Merger, including information regarding AMD's and
the Company's financial projections and certain details regarding
the financial analyses performed by Morgan Stanley and Bank of
America.
The complaint seeks injunctive relief enjoining the Merger, an
amended registration statement, damages and costs, among other
remedies.
On December 30, 2020, a purported stockholder of the Company filed
a complaint in the United States District Court for the Northern
District of California against Xilinx and the members of its board
of directors (Sandhu v. Xilinx, Inc., et al., Case No.
5:20-cv-09440).
The complaint raises federal securities disclosure claims and
alleges, among other things, that the registration statement issued
in connection with the Merger omitted material information with
respect to the Merger, including information regarding AMD's and
the Company's financial projections, certain details regarding the
financial analyses performed by Morgan Stanley and Bank of America,
and certain details regarding compensation for Morgan Stanley.
The complaint seeks injunctive relief enjoining the Merger, damages
and costs, among other remedies.
The Company believes that the allegations in the shareholder
litigation matters are without merit.
Xilinx, Inc. is an American technology company, primarily a
supplier of programmable logic devices. It is known for inventing
the field-programmable gate array and as the semiconductor company
that created the first fabless manufacturing model. The company is
based in San Jose, California.
XILINX INC: Murphy Challenges Merger Deal With Advanced Micro
-------------------------------------------------------------
JOHN MURPHY v. XILINX, INC., DENNIS SEGERS, VICTOR PENG, RAMAN
CHITKARA, SAAR GILLAI, RONALD S. JANKOV, MARY LOUISE KRAKAUER,
THOMAS H. LEE, JON A. OLSON, and ELIZABETH VANDERSLICE, Case No.
5:21-cv-00695 (N.D. Cal., Jan. 28, 2021) is a class action lawsuit
brought on behalf of the Plaintiff and on behalf of all others
similarly situated against Xilinx and the members of Xilinx's Board
of Directors for their violations of Sections 14(a) and 20(a) of
the Securities Exchange Act of 1934 and U.S. Securities and
Exchange Commission (SEC) Rule 14a-9.
The Plaintiff seeks to enjoin the vote on a proposed transaction,
pursuant to which Xilinx will be acquired by Advanced Micro
Devices, Inc. (AMD) through AMD's wholly owned subsidiary Thrones
Merger Sub, Inc.
According to the complaint, on October 27, 2020, Xilinx and AMD
issued a joint press release announcing that they had entered into
an Agreement and Plan of Merger dated October 26, 2020 to sell
Xilinx to AMD. Under the terms of the Merger Agreement, each holder
of Xilinx common stock will receive 1.7234 shares of AMD common
stock for each share of Xilinx common stock they own. Upon closing
of the merger, Xilinx stockholders are expected to own
approximately 26% of the outstanding shares of AMD common stock and
AMD stockholders immediately prior to the merger are expected to
own approximately 74% of the outstanding shares of AMD common
stock. The Proposed Transaction is valued at approximately $35
billion.
On December 4, 2020, AMD filed a Form S-4 Registration Statement
with the SEC. The Registration Statement, which recommends that
Xilinx stockholders vote in favor of the Proposed Transaction,
omits or misrepresents material information concerning the
Company's and AMD's financial projections, the suit alleges.
In short, unless remedied, Xilinx's public stockholders will be
irreparably harmed because the Registration Statement's material
misrepresentations and omissions prevent them from making a
sufficiently informed voting decision on the Proposed Transaction,
the Plaintiff contends.
The Plaintiff is, and has been at all times relevant, a continuous
stockholder of Xilinx.
Defendant Xilinx is a Delaware corporation, with its principal
executive offices located at 2100 Logic Drive, San Jose,
California. The Company develops processing platforms that enable
innovation across a variety of technologies. Xilinx's common stock
trades on the NASDAQ Global Select Market under the ticker symbol
"XLNX." The Indvidual Defendants are officers and directors of the
company.[BN]
The Plaintiff is represented by:
Joel E. Elkins, Esq.
WEISSLAW LLP
9100 Wilshire Blvd., No. 725 E.
Beverly Hills, CA 90210
Telephone: (310) 208-2800
Facsimile: (310) 209-2348
E-mail: jelkins@weisslawllp.com
Y AND P: Bakery Staff Seeks Overtime, Spread-of Hours Pay
---------------------------------------------------------
Martin Gonzalez Sanchez, Lediz Marin, Hector Gonzalez Sanchez,
Leoncio Noe and Damaso Cesar Gonzalez Romano, individually and on
behalf of others similarly situated, Plaintiff, v. Y and P
Enterprises Inc., Paul Dimino, Yura Mohr, Lucas Santos and Susie
Doe, Defendants, Case No. 21-cv-00675 (S.D. N.Y., January 25,
2021), seeks to recover unpaid minimum and overtime wages and
spread-of-hours pay pursuant to the Fair Labor Standards Act of
1938 and New York Labor Law, including applicable liquidated
damages, interest, attorneys' fees and costs.
Defendants own, operate, or control a cafe bakery, located at 1645
3rd Ave New York, New York under the name "Corner Cafe & Bakery"
where Plaintiffs were employed as a food preparer, sandwich maker,
dishwasher and line cook, salad preparer and baker. They claim to
have generally worked in excess of 40 hours a week without overtime
for hours in excess of 40 hours per workweek and denied
spread-of-hours premium for workdays exceeding 10 hours. They also
claim to have never received wage statements. [BN]
Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Tel: (212) 317-1200
Facsimile: (212) 317-1620
Email: michael@faillacelaw.com
ZOOM VIDEO: Bragar Eagel Announces Securities Class Action
----------------------------------------------------------
Bragar Eagel & Squire, P.C., a nationally recognized shareholder
rights law firm, is investigating certain officers and directors of
American Electric Power Company, Inc. ("AEP") (NYSE: AEP) and Zoom
Video Communications, Inc. (NASDAQ: ZM) on behalf of long-term
stockholders. More information about each potential case can be
found at the link provided.
Zoom Video Communications, Inc. (NASDAQ: ZM)
Bragar Eagel & Squire is investigating certain officers and
directors of Zoom Video Communications, Inc. following a class
action complaint that was filed against Zoom on April 7, 2020.
The Complaint 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) Zoom had inadequate data
privacy and security measures; (ii) contrary to Zoom's assertions,
the Company's video communications service was not end-to-end
encrypted; (iii) as a result of all the foregoing, users of Zoom's
communications services were at an increased risk of having their
personal information accessed by unauthorized parties, including
Facebook; (iv) usage of the Company's video communications services
was foreseeably likely to decline when the foregoing facts came to
light; and (v) as a result, the Company's public statements were
materially false and misleading at all relevant times.
To learn more about our investigation into Zoom go to:
https://bespc.com/cases/ZM
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.comwww.bespc.com [GN]
ZOUND INDUSTRIES: Romero Sues Over Blind-Inaccessible Website
-------------------------------------------------------------
Christian Sanchez, on behalf of himself and all others similarly
situated v. ZOUND INDUSTRIES USA INC., Case No. 1:21-cv-00956-MKV
(S.D.N.Y., Feb. 3, 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, www.marshallheadphones.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 Defendant is a headphones and sound systems manufacturing
company, and owns and operates the Website,
www.marshallheadphones.com.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Phone: (929) 575-4175
Email: Joseph@cml.legal
[*] SoCal Youth Baseball Group Hits Insurers With RICO Class Action
-------------------------------------------------------------------
A Southern California youth baseball program filed a proposed RICO
class action against several insurers in the Central District of
California alleging a scheme to sell counterfeit and nonexistent
policies.
The complaint filed by Del Obispo Youth Baseball Inc., known as
Dana Point Youth Baseball, names Ambassador Group LLC, also known
as Ambassador Captive Solutions, as well as Performance Insurance
Co., and Goldenstar Specialty Insurance LLC. [GN]
[*] Two Cladding Class Actions Commenced in New Zealand
-------------------------------------------------------
Insurancenews.com.au reports that litigation funder
Omni Bridgeway, which is financing two cladding class actions
in Australia, has commenced similar legal proceedings in New
Zealand.
It has filed a lawsuit in the country's High Court against the
makers of Alucobond PE core cladding products on behalf of
property owners or leaseholders who have suffered, or will
suffer, financial loss associated with removing and replacing the
materials or taking other remedial measures.
The class action seeks compensation for property owners of
residential, commercial, public, mixed-use, and other
non-residential buildings on which there is certain Alucobond
aluminium composite panel cladding, with a core comprised wholly
or substantially of polyethylene.
"I am pleased that the Omni Bridgeway-funded New Zealand
Combustible Cladding Class Action has commenced on behalf of
affected building owners in the same way as we have already done in
Australia, to support the claimants in pursuing compensation from
the manufacturers," Investment Manager Gavin Beardsell said.
One of the two lawsuits in Australia is against a manufacturer
of Alucobond PE products. [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Washington, D.C., USA. Rousel Elaine T.
Fernandez, Joy A. Agravante, Psyche A. Castillon, Julie Anne L.
Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2021. All rights reserved. ISSN 1525-2272.
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