/raid1/www/Hosts/bankrupt/CAR_Public/210210.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, February 10, 2021, Vol. 23, No. 24
Headlines
ACCOR MANAGEMENT: Ordono Seeks to Recover Withheld Gratuities
AGRO RESEARCH: Romero Files Fraud Suit in N.D. California
AKERS BIOSCIENCES: McClain Sues for Breaches of Fiduciary Duties
ANATOMIE CORPORATION: Kiler Files ADA Suit in E.D. New York
ANZ SECURITIES: Still No Flood of Opt-Outs 3 Years After Ruling
AQUALITY WATER: Garcia Suit Alleges Employment Violations
ASTRAZENECA PLC: Thornton Law Firm Reminds of March 27 Deadline
ATOMS INC: Conner Files ADA Suit in E.D. New York
BOARDRIDERS RETAIL: Jariwala Files ADA Suit in S.D. California
BRITAX CHILD: Seeks Dismissal of Defective Seat Class Action
CANADA: Parts of Sixties Scoop Settlement to Resume in March
CHESTER, PA: Police Dep't Settles Strip Search Class Action
ERIE INSURANCE: Three Little Pigs Files Insurance Suit in Pa.
ERIN ENERGY: Lenois Appeals Stockholders Suit Ruling to Del. S.C.
FILTERS FAST: Seeks Dismissal of Data Loss Class Action Lawsuit
FISHER ISLAND: Faces $11MM Class Action Suit From Homeowners
G-STAR INC: Loaiza Files ADA Suit in C.D. California
GRAND CANYON: Court Dismisses Claims for Conversion in Little Suit
ILLUMINATIVE INC: Bunting Files ADA Suit in E.D. New York
INDIANA: Bid for Summary Judgment in McQuay v. IDOC Partly Granted
INTERACTIVE BROKERS: Levi & Korsinsky Starts Class Action Probe
INTERPRESS TECHNOLOGIES: Fang Files Labor Suit in Cal. State Court
IRHYTHM TECHNOLOGIES: Rosen Law Firm Reminds of April 2 Deadline
IRHYTHM TECHNOLOGIES: Schall Law Firm Reminds of April 2 Deadline
JOYRIDE 365: Slade Files ADA Suit in S.D. New York
KANYE WEST: Faces $30MM Class Action Over Mistreatment of Employees
KNOT STANDARD: Rodriguez Files ADA Suit in E.D. New York
LEARN TO LIVE: Slade Files ADA Suit in S.D. New York
LIFESHIELD NATIONAL: Nettnay Files TCPA Suit in W.D. Oklahoma
LLOYD A. WISE: Avalos Files Suit in Cal. Super. Ct.
LYFT INC: Can't Compel Arbitration in Gonzalez Unpaid Wages Suit
MARKET VIEW: Faces Class Action Lawsuit Over Tribal Loans
MDL 2323: 45% D.C. Atty. Fees Given to Locks Law, 55% to Langfitt
MDL 2987: Torres, et al. Seek Transfer of 5 Suits to E.D. Michigan
MDL 2988: All-Clad Seeks Transfer of 4 Suits to W.D. Pennsylvania
MIDWESTERN PET: Faces Class Action Over Contaminants in Pet Foods
MINICLIP SA: Mastel Suit Alleges Wiretapping Through Mobile App
MONASH IVF: Faces Class Action Over Defective Screening Test
MRS ASSOCIATES: Deutsch Files FDCPA Suit in S.D. New York
NATIONAL FIRE: Judge Grants Motion to Dismiss Insurance Class Suit
NAVIENT CORP: Misallocated Student Loan Payments, Gallagher Says
NBCUNIVERSAL MEDIA: Winegard Files ADA Suit in E.D. New York
OBALON THERAPEUTICS: April 22 Settlement Fairness Hearing Set
POLAND: Opposition MPs Mull Class Action Over Lockdown
PORCH.COM: Faces Class Action Over Overtime Pay Calculations
PORSCHE: Faces Suit Over Damaged Batteries Due to Software Update
POSTMATES INC: Cal. App. Affirms Arbitration Denial in Santana Suit
ROBERTA PLACE: Faces Class Action Over Care Home's COVID Outbreak
ROBINHOOD FINANCIAL: Faces Class Suits Over Game Stop Trade Freeze
ROBINHOOD FINANCIAL: Faces Suit Over Gamestop Trading Restrictions
ROBINHOOD FINANCIAL: Faces Suits Over Gamestop Trading Restrictions
ROGERS WIRELESS: 80,000 People Have Yet to Claim Reimbursement
ROGERS WIRELESS: May 31 ETF Claims Submission Deadline Set
ROYAL OAK: Lyons Sues Over Mislabeled Barbeque Charcoal Products
S-L SNACKS: 9th Circuit Upholds Consumer Class Action Dismissal
SAMSUNG ELECTRONICS: Court Dismisses Clark NJCFA and MMWA Suit
SKY CHEFS: Court Narrows Claims in Reyes Suit Over Unpaid Wages
SUBWAY: Faces Class Action in California Over Tub Subs, Wraps
THRIVE CAUSEMETICS: Slade Files ADA Suit in S.D. New York
UNIVERSITY OF PENNSYLVANIA: Settles Class Action for $13 Million
VALENTINE & KEBARTAS: Pistone Files FDCPA Suit in New Jersey
VELOCITY FINANCIAL: Calif. Court Tosses Securities Class Action
WALGREENS BOOTS: March 23 Class Action Opt-Out Deadline Set
[*] Jackson Lewis Attorneys Discuss Significant Class Actions
*********
ACCOR MANAGEMENT: Ordono Seeks to Recover Withheld Gratuities
-------------------------------------------------------------
JOHN ORDONO, individually and on behalf of all others similarly
situated v. ACCOR MANAGEMENT US INC., FAIRMONT HOTEL MANAGEMENT
COMPANY, and FAIRMONT HOTEL MANAGEMENT LP, Case No. CGC-21-589194
(Cal. Super., San Francisco Cty., Jan. 21, 2021) is a class action
brought under California law challenging the Defendants' failure to
remit the total proceeds of gratuities that have been added to
banquet bills to the employees who provide service of food and
beverage in the hotel's banquet department.
According to the complaint, the Defendants have imposed gratuities
on the sale of food and beverages at banquet events held at the
hotel located in San Francisco, California, but Defendants have
failed to distribute the total proceeds of these gratuities to
non-managerial food and beverage banquet service employees as
required by California law in violation of the California
Gratuities Law, the California Labor Code, which is enforceable
through the California Unfair Competition Law.
Mr. Ordono has worked as a banquet server at the Fairmont San
Francisco in California.
The Defendants operate and own hotels in California.[BN]
The Plaintiff is represented by:
Shannon Liss-Riordan, Esq.
LICHTEN & LISS-RIORDAN, P.C.
729 Boylston Street, Suite 2000
Boston, MA 02116
Telephone: (617) 994-5800
E-mail: sliss@IIrlaw.com
AGRO RESEARCH: Romero Files Fraud Suit in N.D. California
---------------------------------------------------------
A class action lawsuit has been filed against Agro Research
International LLC. The case is styled as Jesus Romero and Ken
Bernards, individually and on behalf of all others similarly
situated v. Agro Research International LLC, Case No.
4:21-cv-00518-DMR (N.D. Cal., Jan. 21, 2021).
The case arises from fraud-related issues.
Agro Research International LLC is an organic agricultural
company.[BN]
The Plaintiff is represented by:
Jonathan Ellsworth Davis, Esq.
Shounak Sanjeev Dharap, Esq.
Robert Stephen Arns, Esq.
THE ARNS LAW FIRM
515 Folsom St., 3rd Fl.
San Francisco, CA 94105
Telephone: (415) 495-7800
Facsimile: (415) 495-7888
E-mail: jed@arnslaw.com
ssd@arnslaw.com
ddl@arnslaw.com
AKERS BIOSCIENCES: McClain Sues for Breaches of Fiduciary Duties
----------------------------------------------------------------
DOUGLAS McCLAIN, on behalf of himself and all others similarly
situated v. AKERS BIOSCIENCES, INC., CHRISTOPHER C. SCHREIBER,
JOSHUA SILVERMAN, BILL J. WHITE, ROBERT C. SCHROEDER, MYMD
PHARMACEUTICALS, INC., and XYZ MERGER SUB INC., Case No.
650497/2021 (N.Y. Sup., New York Cty., Jan. 22, 2021) arises from
Akers Biosciences, Inc. and Akers' Board of Directors' breaches of
fiduciary duties in connection with a definitive merger agreement
entered into on November 11, 2020, and filed on Form 8-K with the
United States Securities and Exchange Commission on November 12,
2020, between Akers and MyMD Pharmaceuticals, Inc., via a merger of
XYZ Merger Sub Inc. with and into MyMD, with MyMD remaining as the
surviving entity after the merger.
Under the transaction, MyMD stockholders will receive the Company's
common stock in exchange for their MyMD common stock. On a pro
forma basis, upon the closing of the merger and the closing of
anticipated financing, the current Akers stockholders, in addition
to receiving shares in Akers' pharmaceutical business, will only
own approximately 20% of the combined company. MyMD's security
holders and new investors will own approximately 80% of the
combined company, subject to the adjustments.
The Plaintiff alleges that the individual Defendants have breached
their fiduciary duties by agreeing to the proposed transaction
based on a flawed process which will result in grossly inadequate
compensation for shareholders. As such, the Plaintiff and the other
public shareholders of Akers common stock are entitled to enjoin
the proposed transaction or, alternatively, to recover damages in
the event that the transaction is consummated.
In violation of their fiduciary duties, the Defendants allegedly
caused to be filed the materially deficient Registration Statement
on January 15, 2021 with the SEC in an effort to solicit
stockholders to vote their Akers shares in favor of the proposed
transaction. The Registration Statement is materially deficient,
deprives Akers' stockholders of the information they need to make
an intelligent, informed and rational decision of whether to vote
their shares in favor of the proposed transaction, and is thus in
breach of the Defendants fiduciary duties, asserts the complaint.
Akers Biosciences, Inc. develops, manufactures, and supplies
point-of-care screening and testing products designed to bring
health-related information directly to the patient or
clinician.[BN]
The Plaintiff is represented by:
Evan J. Smith, Esq.
BRODSKY & SMITH, LLC
240 Mineola Boulevard
Mineola, NY 11501
Telephone: (516) 741-4977
Facsimile: (561) 741-0626
ANATOMIE CORPORATION: Kiler Files ADA Suit in E.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Anatomie Corporation.
The case is styled as Marion Kiler, individually and as the
representative of a class of similarly situated persons v. Anatomie
Corporation, Case No. 1:21-cv-00638 (E.D.N.Y., Feb. 5, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Anatomie -- https://anatomie.com/ -- is a European-made luxury
travel leisurewear brand combining high functionality with the
finest materials, centered on a contemporary style, innovative
features and unique designs for the active and adventurous.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
ANZ SECURITIES: Still No Flood of Opt-Outs 3 Years After Ruling
---------------------------------------------------------------
Victor L. Hou, Jared Gerber and Douglas Gretz of Law.com report
that three years have now passed since 'CalPERS,' providing an
opportunity to consider whether courts have been inundated with
placeholder actions in response to the decision, as predicted by
the petitioner and its amici. The evidence demonstrates they have
not.
In California Public Employees' Retirement System v. ANZ
Securities, 137 S. Ct. 2042, 2055 (2017) (CalPERS), the Supreme
Court held that the Securities Act's three-year statute of repose
was not subject to class-action tolling. Thus, under CalPERS,
investors cannot rely on the filing of a class action to preserve
the timeliness of their individual Securities Act claims, and must
instead separately assert those claims within the three-year
statute of repose.
The CalPERS court reached this holding over the strenuous
objections of the petitioner, several of its amici, and four
dissenting justices, all of whom claimed that the majority's
holding would result in substantial inefficiencies as "nonnamed
class members will inundate district courts with protective
filings" before the expiration of the three-year period. Id. at
2053; see also id. at 2058 (Ginsburg, J., dissenting). [GN]
AQUALITY WATER: Garcia Suit Alleges Employment Violations
---------------------------------------------------------
A class action lawsuit has been filed against Aquality Water
Management, Inc. The case is styled as Loni Garcia, on behalf of
all other similarly situated employees v. Aquality Water
Management, Inc., a California Corporation, Josh Brown, and Does
1-100, Case No. 34-2021-00292794-CU-OE-GDS (Cal. Super., Sacramento
Cty., January 21, 2021).
The case is brought over alleged employment violations.
Aquality Water Management Inc. was founded in 2011. The company's
line of business includes providing management services on a
contract and fee basis.[BN]
The Plaintiff is represented by:
Galen T. Shimoda, Esq.
SHIMODA LAW CORP.
9401 E. Stockton Blvd. Suite 120
Elk Grove, CA 95624-5050
Telephone: (916) 525-0716
Facsimile: (916) 760-3733
E-mail: attorney@shimodalaw.com
ASTRAZENECA PLC: Thornton Law Firm Reminds of March 27 Deadline
---------------------------------------------------------------
The Thornton Law Firm on Feb. 2 disclosed that a class action
lawsuit has been filed on behalf of investors of AstraZeneca PLC
(NASDAQ:AZN). The case is currently in the lead plaintiff stage.
Investors who purchased AZN stock or other securities between May
21, 2020 and November 20, 2020 may contact the Thornton Law Firm's
investor protection team by visiting
www.tenlaw.com/cases/AstraZeneca to submit their information.
Investors may also email investors@tenlaw.com or call
617-531-3917.
FOR MORE INFORMATION: www.tenlaw.com/cases/AstraZeneca
The complaint alleges that AstraZeneca and its senior executives
misrepresented facts regarding AstraZeneca's ongoing AZD1222
clinical trials and concealed problems that had arisen in the
trials, including a dosing error which had been discovered by
AstraZeneca early on but was not disclosed to investors.
Interested AstraZeneca investors have until March 27, 2021 to
retain counsel and apply to be a lead plaintiff if they are
interested to do so. Investors do not need to be a lead plaintiff
in order to be a class member. A lead plaintiff acts on behalf of
all other investor class members in managing the class action. If
investors choose to take no action, they can remain an absent class
member. The class has not yet been certified. Until certification
occurs, investors are not represented by an attorney.
FOR MORE INFORMATION: www.tenlaw.com/cases/AstraZeneca
Thornton Law Firm's securities attorneys are highly experienced in
representing investors in recovering damages caused by violations
of the securities laws. Its attorneys have established track
records litigating securities cases in courts throughout the
country and recovering losses on behalf of investors. This may be
considered Attorney Advertising in some jurisdictions. Prior
results do not guarantee or predict a similar outcome with respect
to any future matter.
CONTACT:
Thornton Law Firm LLP
1 Lincoln Street
State Street Financial Center
Boston, MA 02111
www.tenlaw.com/cases/AstraZeneca [GN]
ATOMS INC: Conner Files ADA Suit in E.D. New York
-------------------------------------------------
A class action lawsuit has been filed against Atoms, Inc. The case
is styled as Mary Conner, individually and as the representative of
a class of similarly situated persons v. Atoms, Inc., Case No.
1:21-cv-00636 (E.D.N.Y., Feb. 5, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Atoms -- https://www.atoms.com/ -- is a privately held footwear
brand, based in Brooklyn, New York, that designs, develops and
sells footwear.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
BOARDRIDERS RETAIL: Jariwala Files ADA Suit in S.D. California
--------------------------------------------------------------
A class action lawsuit has been filed against Boardriders Retail,
Inc., et al. The case is styled as Krishna Jariwala, individually
and on behalf of herself and all others similarly situated v.
Boardriders Retail, Inc. doing business as: Quiksilver, a
California company; Does 1-10 inclusive; Case No.
3:21-cv-00228-BAS-LL (S.D. Cal., Feb. 5, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Boardriders -- https://www.boardriders.com/ -- is an action sports
and lifestyle company that designs, produces and distributes
branded apparel, footwear and accessories for boardriders around
the world.[BN]
The Plaintiff is represented by:
Thiago M. Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: thiago@wilshirelawfirm.com
BRITAX CHILD: Seeks Dismissal of Defective Seat Class Action
------------------------------------------------------------
Law360 reports that child car seat manufacturer Britax Child Safety
urged a California federal judge to toss a proposed consumer class
action that alleges the company sold defective seats, saying the
plaintiff's argument hangs on a single 2019 Consumer Reports
article, not on any federal standard for safety. [GN]
CANADA: Parts of Sixties Scoop Settlement to Resume in March
------------------------------------------------------------
Ka'nhehsí:io Deer, writing for CBC News, reports that parts of the
class action settlement for Sixties Scoop survivors that have been
on hold for nearly a year will resume next month, according to the
class administrator.
The process of denying ineligible applications had been on hold as
a result of the coronavirus pandemic but that will be changing come
March, along with resuming personalized deadlines for applicants
who need to provide additional information for their claims to be
adjudicated.
"We didn't deny any claims during the pandemic. It just wasn't
going to be fair," said Doug Lennox of Klein Lawyers, who provides
ongoing counsel to class members.
"But we are now at a point where I think we can lift that pause and
go forward and work for those survivors because they need
answers."
Canada's class action settlement agreement with Sixties Scoop
survivors, signed in November 2017, set aside $750 million to
compensate First Nations and Inuit children who were removed from
their homes and placed with non-Indigenous foster or adoptive
parents between 1951 and 1991, and lost their cultural identities
as a result.
While the claims administration has continued to actively review,
assess, and approve claims, Lennox said the pandemic brought
unexpected challenges for the class action. He said it's taken a
while to adjust and adapt systems and resources in order for the
claims administrator Collectiva to do its job amid the pandemic.
As of January 2021, over 9,000 claims have been determined to
require more information or have been rejected with the right to
reconsideration. A total of 14,882 claims have been approved and
9,298 are still actively being assessed.
"We're anxious to move forward and get survivors the resolution
that they're so entitled to," said Lennox.
"It's important on a personal level so people have that information
so they can decide what they want to do next. But, it's also
important for how class action settlements work."
In June, the Federal Court approved interim payments of $21,000 to
people whose applications are approved. There is still no exact
timeline for final payments, as the total amount of compensation
each claimant will receive is dependent on the total number of
claimants approved, but the Feb. 1 announcement gets this process
moving forward again.
"Throughout the pandemic where we can get someone a cheque, we've
gotten them a cheque," said Lennox.
"The process has taken longer than anyone expected. I am so
impressed by the resilience and patience of survivors."
Claimants concerned about how COVID-19 may affect their claim are
asked to reach out to class counsel for guidance. [GN]
CHESTER, PA: Police Dep't Settles Strip Search Class Action
-----------------------------------------------------------
Alex Rose, writing for Delco Times, reports that people subjected
to strip searches by the Chester Police Department between February
2017 and December 2020 may be entitled to receive up to $1,000
under a preliminary settlement of a class action lawsuit reached.
The Jan. 27 settlement entered into by attorneys representing the
class and department provides for the creation of a settlement fund
with an initial $50,000 payment due from Chester police within a
month of U.S. Judge Paul S. Diamond signing off on the agreement,
to cover initial notification and administration costs.
The suit, filed in the U.S. District Court for the Eastern District
of Pennsylvania, stemmed from the May 18, 2018, arrest of Kenard
Pitney at the Philadelphia Harrah's Casino and Racetrack in
Chester.
Pitney, of Devon, was charged with public intoxication after staff
there would not let him into his car in the valet section of the
parking lot, according to the suit. Pitney explained he did not
want to drive the vehicle, just remove some items from it and
advised staff to call the police when they refused to give him his
keys, according to the suit.
Pitney, represented by attorneys Patrick G. Geckle, Alan M.
Feldman, Edward S. Goldis and Andrew K. Mitnick, claims he was
arrested and forced to undergo a strip search in a holding cell at
the Chester Police Department that included lifting his own
genitals. He was released after about an hour and a half on a
public intoxication charge, a summary offense that was later
dismissed.
Pitney filed suit in February 2019 alleging the city's "blanket"
policy of conducting strip searches on all detainees for minor
infractions violated state and federal protections against
unreasonable search and seizure, as memorialized in a 2012 U.S.
Supreme Court decision.
In reviewing casino security footage on a summary judgment motion
last year, Diamond noted Pitney was not violent or belligerent
during the May 2018 incident and found that his "intrusive,
demeaning strip search" at the station did little to promote
institutional security. The judge added that a simple pat-down of
Pitney's warm summer clothing, as happened at the casino, would
have sufficed to reveal whether he was holding any contraband or
weapons.
"When a non-drug summary offender has been patted down, uncovering
no contraband, is neither violent nor belligerent and will be held
briefly and alone in a cell, strip searching him is unreasonable,"
the judge found in denying Chester's motion to dismiss.
The Chester Police Department, represented by attorneys David J.
MacMain, Brian H. Leinhauser, Andrew J. Davis and Nicholas Cummins,
updated its policy Dec. 9, 2020, with a checklist review to
determine whether reasonable suspicion exists to conduct a strip
search in accordance with existing law. The department acknowledges
in the settlement that this change came about as a result of the
lawsuit, but continues to deny any wrongdoing or liability to
Pitney and other class members.
Both parties agreed, however, that a settlement was the best way to
resolve the claims and avoid the undue time and expense that comes
with a protracted legal battle.
The settlement class defined in the agreement includes all people
detained and strip-searched for minor offenses prior to an
appearance before a judge or other judicial officer who had the
authority to release them between Feb. 25, 2017, and Dec. 9, 2020,
"regardless of circumstances indicative of reasonable suspicion."
These include: Summary offenses; civil enforcement offenses; child
support enforcement arrears; traffic offenses; disorderly conduct
offenses; contempt proceedings; non-violent misdemeanor offenses in
which a weapon was not used or brandished and no injuries were
caused; misdemeanors not involving drugs or controlled substances
except possession of a small amount of marijuana for personal use;
failure to pay fines, penalties or costs; and failure to appear at
court proceedings.
The agreement provides three tiers for class payouts based on the
highest graded and type of offense charged, but there are some
caveats.
Those charged only with summary offenses are entitled to $1,000.
Misdemeanors except those for drug offenses or violent offenses
involving physical harm to another person, or use or possession of
a weapon of any kind, are entitled to receive $400.
Those whose highest graded offense was a misdemeanor for possession
of a small amount of marijuana for personal use are entitled to
receive $100.00.
Class members can only get the one payment, regardless of the
number of times they were booked or strip-searched, and the
payments or portions thereof will first go toward any outstanding
costs of fines they might owe. For instance, a person who owes $400
in child support payments and is entitled to a $1,000 payout would
receive the $600 balance after the support arrears were satisfied.
Pitney is expected to receive a $25,000 payout and the agreement
stipulates that the police department will not oppose the class
attorney's application for an award of fees and expenses up to
$275,000. [GN]
ERIE INSURANCE: Three Little Pigs Files Insurance Suit in Pa.
-------------------------------------------------------------
A class action lawsuit has been filed against Erie Insurance
Exchange. The case is styled as THREE LITTLE PIGS BAR-B-Q, INC.,
d/b/a THREE LITTLE PIGS BAR B QUE, individually and behalf of all
others similarly situated v. ERIE INSURANCE EXCHANGE, Case No.
1:21-cv-00058-MRH (W.D. Pa., Jan. 21, 2021).
The lawsuit arises from alleged insurance contract violations.
Erie Insurance is a publicly held insurance company, offering auto,
home, commercial and life insurance through a network of
independent insurance agents.[BN]
The Plaintiff is represented by:
Tucker Brown, Esq.
WHATLEY KALLAS, LLP
PO Box 10968
Birmingham, AL 35202-0968
Telephone: (205) 488-1200
Facsimile: (800) 922-4851
E-mail: tbrown@whatleykallas.com
- and -
Jeffrey Lucas Sanderson, Esq.
WAMPLER, CARROLL, WILSON & SANDERSON, P.C.
44 N. Second Street, Suite 502
Memphis, TN 38103
Telephone: (901) 523-1844
Facsimile: (901) 523-1857
E-mail: luke@wcwslaw.com
The Defendant is represented by:
Parks T. Chastain, Esq.
Edward Jason Ferrell, Esq.
BREWER KRAUSE BROOKS & CHASTAIN
545 Mainstream Drive, Suite 101
Nashville, TN 37228
Telephone: (615) 630-7717
Facsimile: (615) 256-8985
E-mail: pchastain@bkblaw.com
jferrell@bkblaw.com
- and -
Adam Jay Kaiser, Esq.
ALSTON & BIRD LLP
90 Park Avenue
New York, NY 10016
Telephone: (212) 210-9400
Facsimile: (212) 210-9444
E-mail: adam.kaiser@alston.com
- and -
Curtis Campbell, Esq.
45 Vantage Way Apt 3406
Nashville, TN 37228
Telephone: (615) 971-7949
E-mail: ccampbell@bkblaw.com
- and -
Kristin Ann Shepard, Esq.
ALSTON & BIRD LLP
950 F Street, NW
District of Columbia, DC 20004
Telephone: (202) 239-3277
Facsimile: (202) 239-3333
E-mail: kristin.shepard@alston.com
- and -
Tiffany L. Powers, Esq.
ALSTON & BIRD
1201 West Peachtree Street
One Atlantic Center
Atlanta, GA 30309-3424
Telephone: (404) 881-4249
E-mail: tiffany.powers@alston.com
ERIN ENERGY: Lenois Appeals Stockholders Suit Ruling to Del. S.C.
-----------------------------------------------------------------
Plaintiff Robert Lenois and Movant Ronald J. Sommers filed an
appeal from a court ruling entered in the lawsuit entitled ROBERT
LENOIS, on behalf of himself and all other similarly situated
stockholders of ERIN ENERGY CORPORATION, and derivatively on behalf
of ERIN ENERGY CORPORATION v. KASE LUKMAN LAWAL, LEE P. BROWN,
WILLIAM J. CAMPBELL, J. KENT FRIEDMAN, JOHN HOFMEISTER, IRA WAYNE
MCCONNELL, HAZEL R. O'LEARY, and CAMAC ENERGY HOLDINGS LIMITED,
Defendants, and ERIN ENERGY CORPORATION, Nominal Defendant, Case
No. 11963-VCF, in the Court of Chancery in the State of Delaware.
The case arises out of transactions between an oil and gas
exploration company (Erin), its controller (Kase Lukman Lawal), a
controller-affiliated company (Allied Energy Plc), and a
third-party entity (Public Investment Corp., Ltd. "PIC"). In the
transactions at issue, PIC invested in Erin, and Erin transferred
stock to PIC. Erin then transferred to Allied the majority of the
PIC cash, a convertible subordinated note, Erin stock, and a
promise of certain future payments related to the development of a
new oil discovery, in exchange for certain Allied oil mining
rights. The other stockholders in the Company also received
additional shares in connection with the Transactions.
Mr. Lenois and Mr. Sommers appeal to the Supreme Court of the State
of Delaware from the Memorandum Opinion dated December 31, 2020
entered in the Court of Chancery of the State of Delaware, by the
Honorable Paul A. Fioravanti, Jr., denying their July 11, 2019
Motion for Relief from Final Judgment and Sommers' May 20, 2020
Amended Motion for Substitution and Realignment.
The appellate case is captioned as ROBERT LENOIS, on behalf of
himself and all other similarly situated stockholders of ERIN
ENERGY CORPORATION, and derivatively on behalf of ERIN ENERGY
CORPORATION, Plaintiff-Below, Appellant, and RONALD J. SOMMERS, as
Chapter 7 Trustee for Nominal Defendant-Below ERIN ENERGY
CORPORATION, Movant-Below, Appellant v. KASE LUKMAN LAWAL, LEE P.
BROWN, WILLIAM J. CAMPBELL, J. KENT FRIEDMAN, JOHN HOFMEISTER, IRA
WAYNE McCONNELL, HAZEL R. O'LEARY, and CAMAC ENERGY HOLDINGS,
LIMITED, Defendants-Below, Appellees, and ERIN ENERGY CORPORATION,
Nominal Defendant-Below, Appellee, Case No. 33,2021, in the Supreme
Court of the State of Delaware, dated January 29, 2021.[BN]
Plaintiffs-Appellants Robert Lenois and Ronald J. Sommers, Chapter
7 Trustee, are represented by:
Gordon Novod, Esq.
GRANT & EISENHOFER P.A.
485 Lexington Avenue
New York, NY 10017
Telephone: (646) 722-8500
E-mail: gnovod@gelaw.com
- and -
Jeremy Friedman, Esq.
Spencer Oster, Esq.
David Tejtel, Esq.
FRIEDMAN OSTER & TEJTEL PLLC
493 Bedford Center Road, Suite 2D
Bedford Hills, NY 10507
Telephone: (888) 529-1108
E-mail: jfriedman@fotpllc.com
soster@fotpllc.com
dtejtel@fotpllc.com
- and -
Michael J. Barry, Esq.
Rebecca A. Musarra, Esq.
GRANT & EISENHOFER P.A.
123 S Justison St.
Wilmington, DE 19801
Telephone: (302) 622-7000
Facsimile: (302) 622-7100
E-mail: mbarry@gelaw.com
rmusarra@gelaw.com
- and -
Peter B. Andrews, Esq.
Craig J. Springer, Esq.
ANDREWS & SPRINGER LLC
3801 Kennett Pike Building C, Suite 305
Wilmington, DE 19807
Telephone: (302) 504-4957
E-mail: pandrews@andrewsspringer.com
cspringer@andrewsspringer.com
Defendants-Below Appellees Lee P. Brown, William J. Campbell, J.
Kent Friedman, and Nominal Defendant-Below Erin Energy Corp. are
represented by:
David J. Teklits, Esq.
Kevin M. Coen, Esq.
MORRIS, NICHOLS, ARSHT & TUNNELL LLP
1201 N. Market Street
Wilmington, DE 19801
Telephone: (302) 658-9200
E-mail: dteklits@morrisnichols.com
kcoen@morrisnichols.com
- and -
Mark Oakes, Esq.
Ryan Meltzer, Esq.
NORTON ROSE FULBRIGHT US LLP
98 San Jacinto Boulevard, Suite 1100
Austin, TX 78701
Telephone: (512) 536-5221
E-mail: mark.oakes@nortonrosefulbright.com
Ryan.meltzer@nortonrosefulbright.com
- and -
Myron T. Steele, Esq.
Matthew F. Davis, Esq.
Jaclyn C. Levy, Esq.
POTTER ANDERSON & CORROON LLP
Hercules Plaza, 6th Floor
1313 North Market Street
Wilmington, DE 19801
Telephone: (302) 984-6000
E-mail: msteele@potteranderson.com
mdavis@potteranderson.com
jlevy@potteranderson.com
- and -
David T. Moran, Esq.
Christopher R. Bankler, Esq.
JACKSON WALKER L.L.P.
2323 Ross Avenue, Suite 600
Dallas, TX 75201
Telephone: (214) 953-6051
E-mail: dmoran@jw.com
cbankler@jw.com
- and -
Matthew D. Perri, Esq.
Srinivas M. Raju, Esq.
Robert L. Burns, Esq.
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
920 North King Street
Wilmington, DE 19801
Telephone: (302) 651-7700
E-mail: perri@rlf.com
raju@rlf.com
burns@rlf.com
- and -
Greg Waller, Esq.
HUNTON ANDREWS KURTH L.L.P.
600 Travis Street, Suite 4200
Houston, TX 77002
Telephone: (713) 220-4790
E-mail: gregwaller@HuntonAK.com
FILTERS FAST: Seeks Dismissal of Data Loss Class Action Lawsuit
---------------------------------------------------------------
Jake Holland, writing for Bloomberg Law, reports that an air and
water filter company is fighting back against a proposed class
action in a North Carolina federal court stemming from a
cyberattack, arguing the case should be dismissed because the
plaintiff doesn't have standing and failed to state a claim.
Plaintiff Jennifer McCreary lacks Article III standing because she
didn't show monetary loss or imminent future fraud related to the
loss of her personal information, lawyers for Filters Fast LLC
argued in their motion to dismiss filed Jan. 29 in the U.S.
District Court for the Western District of North Carolina. [GN]
FISHER ISLAND: Faces $11MM Class Action Suit From Homeowners
------------------------------------------------------------
Lidia Dinkova, writing for Law.com, reports that some residents in
Fisher Island, America's richest zip code, have alleged the master
association is disproportionately dipping into their wealth for
dues, while letting others slide with paying less than they owe.
The suit claims the master association has disproportionately
burdened owners of uncombined lots and units, which is the majority
of owners, with a higher share of assessments and other dues. [GN]
G-STAR INC: Loaiza Files ADA Suit in C.D. California
----------------------------------------------------
A class action lawsuit has been filed against G-Star Inc., et al.
The case is styled as David Loaiza, individually and on behalf of
all others similarly situated v. G-Star Inc., a Delaware
corporation; G-Star Raw Estore Inc., a Delaware corporation; G-Star
Raw Retail Inc., a Delaware corporation; Does 1 to 10, inclusive;
Case No. 2:21-cv-01029-ODW-MAA (C.D. Cal., Feb. 4, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
G-Star RAW (commonly called G-Star) -- https://www.g-star.com/ --
is a Dutch designer clothing company, founded by Jos van Tilburg in
Amsterdam in 1989, which produces high quality clothing.[BN]
The Plaintiff is represented by:
Thiago Merlini Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard 12th Floor
Los Angeles, CA 90010
Phone: (213) 381-9988
Fax: (213) 381-9989
Email: thiago@wilshirelawfirm.com
GRAND CANYON: Court Dismisses Claims for Conversion in Little Suit
------------------------------------------------------------------
In the case, Carson Little, Plaintiff v. Grand Canyon University,
Defendant, Case No. CV-20-00795-PHX-SMB (D. Ariz.), Judge Susan M.
Brnovich of the U.S. District Court for the District of Arizona
granted in part and denied in part the Defendant's Motion to
Dismiss.
The Plaintiff filed his Complaint against GCU alleging breach of
contract, unjust enrichment, and conversion. Each of the
Plaintiff's claims is based on GCU's alleged failure to issue
students a partial refund of housing expenses, meal plans, and
student fees after GCU sent students home in response to the
COVID-19 pandemic during the Spring 2020 semester. The Plaintiff's
Complaint seeks to bring these claims on behalf of two classes: (1)
those who paid room and board fees to GCU and (2) for those who
paid fees during the Spring 2020 semester.
The Plaintiff is a GCU student who paid the cost of room and board
and fees for the Spring 2020 semester. He lists in the Complaint
fees which students, including himself, pay, but he did not specify
which ones he paid for the 2019-2020 academic year. He also lists
housing and meal plan costs, although he does not specifically
allege how much he paid in housing costs.
Students at GCU moved into on-campus housing for the Spring 2020
semester on Jan. 4 and 5, 2020. Classes began on Jan. 6, 2020.
Prior to the COVID-19 outbreak, non-graduating students were
required to move out of campus housing by April 23, 2020.
Graduating students were required to move out by April 25, 2020.
However, on March 12, 2020, GCU announced that due to the COVID-19
pandemic, all but a few classes would be moved online for the
remainder of the Spring 2020 semester. At this time, GCU
encouraged students to return to their homes and complete their
coursework online. In addition, GCU postponed all athletic events,
fine arts performances, and co-curricular activities.
On March 17, 2020, GCU canceled all large-group gatherings on
campus and closed many of its facilities such as fitness centers,
the E-sports facility, the commuter lounge, the veterans center,
and other "high-risk areas." On March 18, 2020, GCU again informed
students that they were "highly encouraged to return to their homes
to finish out the semester in an online learning environment if it
was not imperative that they remain on campus. At that time, GCU
closed additional campus facilities.
On March 20, 2020, GCU again urged students not to return to campus
following spring break. On March 21, 2020, GCU asked all students,
other than international students who can not travel to their home
countries and students who have special circumstances, to leave
campus as soon as possible. The communication also stated that if
students did stay, they would be restricted to their rooms, the
campus grocery/convenience store, and the health and wellness
clinic. It also stated that students who remained on campus could
expect a significant cutback of food services beginning on March
23, 2020. By April 2, 2020, 90% of GCU's employees were working
from home, which the Plaintiff states illustrates the "near total
shutdown of campus."
On March 23, 2020, GCU announced that limited credits would be
offered to students who moved out of their on-campus housing by
March 25, 2020, with credits ranging from $260 to $450 based on
dorm location and occupancy. The Plaintiff alleges that the
credits offered by GCU are insufficient because they are not the
full-prorated unused portion of students' room and board payments.
GCU also announced that in lieu of providing refunds for meal
plans, any "Dining Dollars" left in students' accounts would roll
over to the next semester. Graduating students would have their
balance of the Dining Dollars refunded at the end of the semester.
The Plaintiff alleges that the rollover plan for the Dining Dollars
was insufficient for several reasons. GCU did not provide or offer
students any refund of miscellaneous fees they paid for the Spring
2020 semester. Despite complaints and demands by students and
parents, GCU stood by its policy of refusing refunds.
The Plaintiff left campus on March 13, 2020 and did not return to
campus in accordance with GCU's policies.
The Plaintiff seeks the "disgorgement" of the pro-rated amount of
monies paid for fees, room and board, and meal plans from GCU and
seeks relief on behalf of two classes. The first proposed class
("Room and Board Class") consists of people who paid the costs of
room and board for or on behalf of students at GCU for the Spring
2020 semester who moved out of their on-campus housing prior to the
completion of the semester due to GCU's COVID-19 policies. The
second class ("Fee Class") consists of people who paid fees for or
on behalf of students enrolled in classes at GCU for the Spring
2020 semester.
GCU moves to dismiss Plaintiff's Complaint under Rule 12(b)(6)
arguing that each of the Plaintiff's claims fails as a matter of
law. It argues that the Plaintiff has failed to plead its breach
of contract claims because he has failed to identify "1) any
specific contract or 2) the breach of any contractual obligation."
For the Plaintiff's unjust enrichment claims, GCU argues that the
Plaintiff has failed to allege the necessary elements of enrichment
and an unjust impoverishment. Lastly, GCU argues that the
Plaintiff's conversion claims fail because "a conversion claim
cannot be maintained to collect on a debt that could be paid by
money generally." The Plaintiff opposes the Motion for each claim,
and in the alternative, asks for leave to amend to correct any
deficiencies the Court identifies.
Judge Brnovich does not find GCU's point persuasive that a breach
of contract did not occur because the Plaintiff left campus on
March 13, 2020 and never returned. He has alleged sufficient facts
for a plausible argument that he was not able to return because the
campus was effectively shut down and students had to have a waiver
to stay on campus. The Plaintiff has adequately alleged his breach
of contract claims. Taking the allegations in the Complaint as
true, he has adequately alleged facts satisfying all elements
necessary for his breach of contract claim for housing and meal
plan costs.
Similarly, for the breach of contract claim for the fees, the
Plaintiff has sufficiently pled a breach of contract claim for
fees. The Plaintiff details the fees which he and the class paid.
He next alleges he and other students fulfilled their end of the
bargain by paying, but that GCU did not when it stopped providing
the services and moved classes online. He Plaintiff alleges that
he and other class members were damaged by the breach because they
were "deprived of the value of the services the fees they paid were
intended to cover."
As to unjust enrichment, Judge Brnovich finds that the Plaintiff
has alleged a plausible claim for unjust enrichment both for his
room and board claim (Third Claim for Relief) and for his fees
claim (Fourth Claim for Relief). The Plaintiff alleges that he
paid the cost of room and board and fees for the Spring 2020
semester. He pled that GCU failed to provide housing for a portion
of the Spring 2020 semester and failed to provide the services for
which his fees were paid for the entire semester when GCU strongly
recommended, if not required, students to return home in March
2020. The Complaint also alleges that GCU provided inadequate
credits for housing costs and failed to return any portion of the
fees for the Spring 2020 semester. Further, it alleges that GCU
does not have a justification for the enrichment. GCU's argument
that the enrichment was not unjust is also without merit because
the Plaintiff alleges that GCU failed to provide all the room and
board, meal services, and services for fees it promised without
justification.
Finally, Judge Brnovich need not address the Defendant's first
conversion argument regarding real property because he is convinced
by the Defendant's second argument as to all money the Plaintiff
paid. He finds that the Plaintiff has not shown that he was
entitled to immediate possession of the money paid at the time of
the conversion, nor does he believe that the Plaintiff could. The
Plaintiff's Complaint is devoid of any such allegations, and the
Judge doubts the Plaintiff's ability to make such a showing if the
Complaint were amended. Therefore, dismissal with prejudice of the
Plaintiff's conversion claims is proper.
For the reasons he discussed, Judge Brnovich granted in part and
denied in part the Defendant's Motion to Dismiss. The claims for
conversion are dismissed without leave to amend.
A full-text copy of the Court's Jan. 29, 2021 Order is available at
https://tinyurl.com/dxnb6cup from Leagle.com.
ILLUMINATIVE INC: Bunting Files ADA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Illuminative, Inc.
The case is styled as Rasheta Bunting, individually and as the
representative of a class of similarly situated persons v.
Illuminative, Inc., Case No. 1:21-cv-00635 (E.D.N.Y., Feb. 5,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Illuminative, Inc. -- https://www.illuminative.com/ -- is a company
featuring comfy-chic, super-plush clothing and gorgeous handmade
jewelry from around the world.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
INDIANA: Bid for Summary Judgment in McQuay v. IDOC Partly Granted
------------------------------------------------------------------
In the case, LEONARD McQUAY, DUKE HENDERSON, Plaintiffs v. STATE OF
INDIANA (I.D.O.C.), JEANNE WATKINS, ROBERT MARSHALL, TERESA
LITTLEJOHN, RICHARD BROWN, Defendants, Case No.
2:18-cv-00106-JPH-DLP (S.D. Ind.), Judge James Patrick Hanlon of
the U.S. District Court for the Southern District of Indiana, Terre
Haute Division, granted in part and denied in part the Defendants'
motion for summary judgment on all claims.
The Indiana Department of Correction ("IDOC") has confiscated
certain publications from prisoners McQuay and Henderson, and
continues to prevent them from receiving certain publications.
Based on these actions, Mr. McQuay and Mr. Henderson bring claims
alleging infringement of their right to free expression, race
discrimination, and violations of state tort law.
The Plaintiffs are incarcerated at Wabash Valley Correctional
Facility. Defendant State of Indiana operates Wabash Valley
through the IDOC, and Defendant Brown served as Wabash Valley's
warden. Defendant Watkins worked as its "mail room supervisor";
Defendant Marshall acted as an "Internal Affairs Investigator"; and
Defendant Littlejohn reviewed inmate grievances alongside Mr.
Marshall.
Mailroom staff at Wabash Valley screen "all incoming mail" by
opening any correspondence sent to an offender, verifying and
recording receipt of any property, inspecting for contraband, and
removing any prohibited property. The Wabash Valley "Offender
Correspondence Policy" allows IDOC employees to confiscate or
withhold incoming inmate correspondence if "the Department has
reasonable grounds to believe that" it (1) "poses an immediate
danger to the safety of an individual or a serious threat to the
security of the facility or program," (2) was sent by another
inmate, or (3) "contains contraband or prohibited property."
Based on this policy, IDOC withholds material that "promotes" or
"glorifies" a "security threat group" ("STG") or could inflame
racial tensions within the facility. IDOC defines an STG as "a
group of offenders that set themselves apart from others; pose a
threat to security or safety of staff or offenders; or, are
disruptive to programs or the orderly management of the facility."
The Offender Correspondence Policy also applies to "correspondence
containing STG signs or symbols, articles about weapons, alcohol,
and narcotics, and articles that promote violence, or any kind of
organized demonstrations or strikes." Wabash Valley staff
"routinely confiscate or censor printed materials" from offenders
of all races, including those advocating white supremacist ideas.
The Defendants confiscated multiple newspaper issues (San Francisco
Bay View) from both Mr. McQuay and Mr. Henderson, and three books
(Drug War Capitalism by Dawn Paley, Settlers: The Mythology of the
White Proletariat from Mayflower to Modern by J. Sakai, and
Narcoland: The Mexican Drug Lords and Their Godfathers by Anabel
Hernandez) and a labor union newsletter (Industrial Workers of the
World ("IWW")) from Mr. McQuay.
In December 2017, the Plaintiffs filed their complaint in Indiana
state court, alleging that the Defendants engaged in
"discriminatory censorship and destruction of nonsubversive
political, academic, and journalistic literature belonging to
African American prisoners" held at Wabash Valley. They have
brought claims for (A) infringement of their right to free
expression under the First Amendment through 42 U.S.C. Section
1983; (B) racial discrimination under the Fourteenth Amendment
through 42 U.S.C. Section 1983, Title VI of the Civil Rights Act of
1964, and 42 U.S.C. Section 1981; and (C) violations of several
state common law torts.
The Defendants removed the case to the Court, and filed a motion
for summary judgment on all federal claims and for the Court to
relinquish jurisdiction over the state law tort claims.
First Amendment Claim
For the seven confiscations (certain Bay View Newspaper Issues and
IWW Newsletter), Judge Hanlon cannot defer to IDOC's "professional
judgment," because the Defendants have not offered any reason why
these materials were confiscated. Without explaining how "they
could rationally have seen a connection between the policy and
their ultimate penological goals," the Defendants are not entitled
to summary judgment for these publications.
In contrast, the Defendants have articulated why they confiscated
the remaining Bay View newspaper publications. Regarding
confiscated issues of the Bay View newspaper: The December 2015
issue violated IDOC policies against intra-inmate mail
correspondence. The January 2016 issue violated IDOC policies on
inmate fund solicitation. The February 2016 issue promoted
violence against inmates and prison guards and related to STGs.
The April 2016 promoted prisoner disobedience. The June 2016 issue
promoted violence against prison officials. And, the July 2016
issue promoted prisoner disobedience.
Next, prison officials "determined" that the books Drug War
Capitalism and Narcoland violated IDOC policy because they "discuss
in detail the organizational structure and operations" of the
international drug trade. And officials concluded that the
Settlers book violates IDOC policy because it uses "inflammatory
terms" and "seems to advocate or promote violence against whites."
The Defendants have thus offered plausible explanations for
confiscating these publications. The Plaintiffs have thus not
presented evidence to rebut the Defendants' contention that the
confiscated and/or banned publications contain content that could
disrupt prison order and security. As a result, for these
publications, the Defendants are entitled to summary judgment.
Race Discrimination Claims
While the Defendants mentioned the equal protection claim in their
motion for summary judgment, they did not brief or designate
evidence on the elements required to show a genuine issue of
material fact for trial, Judge Hanlon finds. And the Plaintiffs
did not clearly address the equal protection claim in their
response. The Judge, therefore, gives notice under Rule 56(f)(2)
of his intent to enter summary judgment for the Defendants on this
claim if the designated evidence does not show a triable issue of
fact on discriminatory effect or discriminatory purpose. As a
result, if the Plaintiffs wish to maintain this claim, they will
offer arguments and designate evidence on discriminatory effect and
purpose by March 1, 2021. The Defendants may respond by March 15,
2021.
The Defendants move for summary judgment on the Title VI claim,
arguing that their actions could only violate Title VI if they
violate the Equal Protection Clause. The Plaintiffs did not
respond to this argument.
Because the Defendants rely on the Equal Protection Clause and
since they have not shown that they are entitled to summary
judgment on that claim, Judge Hanlon holds that they are also not
entitled to summary judgment on this ground. However, the Rule
56(f) notice above also applies to the Plaintiffs' Title VI claim.
As a result, if the Plaintiffs do not offer evidence showing a
triable issue of fact on their Equal Protection claim at trial, the
Judge will also grant summary judgment on their Title VI claim.
To establish a prima facie claim of Section 1981 discrimination, a
plaintiff must show that (1) he is a member of a racial minority;
(2) the defendants had the intent to discriminate on the basis of
race; and (3) the discrimination concerned the making or enforcing
of a contract. The Defendants contend that this last element has
not been met because there "is simply no contract at issue in this
case." The Plaintiffs have not designated evidence that their suit
"concerns the making or enforcing of a contract" or any evidence of
a relevant contract. The Defendants are thus entitled to summary
judgment on this claim.
State Law Tort Claims
Last, the Defendants ask the Court to relinquish jurisdiction over
the Plaintiffs' state law claims. But because some of the
Plaintiffs' federal claims remain, the Court retains supplemental
jurisdiction over the state law claims at this time.
For the reasons he states, Judge Hanlon granted in part and denied
in part the Defendants' motion for summary judgment. If the
Plaintiffs wish to maintain their equal protection and Title VI
claims, they will offer arguments and designate evidence on
discriminatory effect and purpose by March 1, 2021. The Defendants
may respond by March 15, 2021. Magistrate Judge Pryor is asked to
hold a status conference to discuss settlement.
A full-text copy of the Court's Jan. 29, 2021 Order is available at
https://tinyurl.com/1p1h7c1x from Leagle.com.
INTERACTIVE BROKERS: Levi & Korsinsky Starts Class Action Probe
---------------------------------------------------------------
Levi & Korsinsky, LLP, a national securities law firm that has
recovered hundreds of millions of dollars for investors, on Feb. 2
disclosed that it has commenced an investigation of Interactive
Brokers Group, Inc (NASDAQ: IBKR) concerning its decision to impose
trading bans on certain stocks.
Recently, retail investors have turned the tables on Wall Street by
buying up stocks heavily shorted by hedge funds, causing losses to
these institutional investors as retail investors took the other
side of the trade. However, on January 28th, Interactive Brokers
announced bans on opening positions of certain stocks as well as
other restrictions aimed at retail investors.
The immediate affect of these bans caused the prices of these
stocks to crater, causing investors substantial losses.
The inability to trade shares has sparked outrage across social
media, as users took to Twitter, social media and the streets to
vent their frustrations.
If you own shares of Interactive Brokers Group, Inc (NASDAQ: IBKR)
and believe you have been harmed, please contact us.
To learn more about this investigation and your rights if you
believe you have suffered losses, go to:
https://www.zlk.com/compensation2/interactive-brokers-group-inc-information-request-form
Levi & Korsinsky is a nationally recognized firm with offices in
New York, Connecticut, California, and Washington D.C. The firm's
attorneys have extensive expertise in prosecuting securities
litigation involving financial fraud, representing investors
throughout the nation in securities lawsuits and have recovered
hundreds of millions of dollars for aggrieved shareholders. For
more information, please feel free to contact any of the attorneys
listed below. Attorney advertising. Prior results do not guarantee
similar outcomes.
CONTACT:
Levi & Korsinsky, LLP
Joseph E. Levi, Esq.
jlevi@levikorsinsky.com
55 Broadway, 10th Floor
New York, NY 10006
Tel: (212) 363-7500 [GN]
INTERPRESS TECHNOLOGIES: Fang Files Labor Suit in Cal. State Court
------------------------------------------------------------------
A class action lawsuit has been filed against Interpress
Technologies, Inc. The case is styled as Yeng Fang, on behalf of
all other similarly situated employees v. Interpress Technologies,
Inc., a California Corporation, and Does 1-100, Case No.
34-2021-00292937-CU-OE-GDS (Cal. Super., Sacramento Cty., Jan. 22,
2021).
The case arises from alleged employment-related claims.
Interpress Technologies, Inc. manufactures formed paperboard and
plastic food packaging products. The Company specializes in printed
formed paper and plastic containers, sidewalls, and folding
cartons. Interpress Technologies operates in the United
States.[BN]
The Plaintiff is represented by:
Galen T. Shimoda, Esq.
SHIMODA LAW CORP.
9401 E. Stockton Blvd Ste 120
Elk Grove, CA 95624-5050
Telephone: (916) 525-0716
Facsimile: (916) 760-3733
E-mail: attorney@shimodalaw.com
IRHYTHM TECHNOLOGIES: Rosen Law Firm Reminds of April 2 Deadline
----------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Feb. 1
announced the filing of a class action lawsuit on behalf of
purchasers of the securities of iRhythm Technologies, Inc. (NASDAQ:
IRTC) between August 4, 2020 and January 28, 2021, inclusive (the
"Class Period"). A class action lawsuit has already been filed. If
you wish to serve as lead plaintiff, you must move the Court no
later than April 2, 2021.
SO WHAT: If you purchased iRhythm 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 iRhythm class action, go to
http://www.rosenlegal.com/cases-register-1539.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 April 2, 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: The complaint alleges that throughout the
Class Period, defendants made false and/or misleading statements
and/or failed to disclose that: (1) iRhythm's business would suffer
as a result of the U.S. Centers for Medicare and Medicaid Services'
("CMS") rulemaking; (2) reimbursement rates would in fact plummet;
(3) a lack of national pricing in the CMS rule and fee schedule
would cause uncertainty and weakness in the Company's business; and
(4) as a result of the foregoing, Defendants' public statements
were materially false and misleading at all relevant times. When
the true details entered the market, the lawsuit claims that
investors suffered damages.
To join the iRhythm class action, go to
http://www.rosenlegal.com/cases-register-1539.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.
CONTACT:
Laurence Rosen, Esq.
Phillip Kim, Esq.
The Rosen Law Firm, P.A.
275 Madison Avenue, 40th Floor
New York, NY 10016
Tel: (212) 686-1060
Toll Free: (866) 767-3653
Fax: (212) 202-3827
lrosen@rosenlegal.com
pkim@rosenlegal.com
cases@rosenlegal.com
www.rosenlegal.com [GN]
IRHYTHM TECHNOLOGIES: Schall Law Firm Reminds of April 2 Deadline
-----------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on Feb. 1 announced the filing of a class action lawsuit against
iRhythm Technologies, Inc. ("iRhythm" or "the Company") (NASDAQ:
IRTC) for violations of §§10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by the
U.S. Securities and Exchange Commission.
Investors who purchased the Company's securities between September
4, 2019 and October 28, 2020, inclusive (the "Class Period"), are
encouraged to contact the firm before April 2, 2021.
If you are a shareholder who suffered a loss, click
https://bit.ly/3q7dH18 to participate.
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. U.S. Centers for Medicare and Medicaid
Services' ("CMS") rulemaking caused iRhythm's business to suffer.
The Company's reimbursement rates plummeted as a result. Further
uncertainty and weakness in the Company's business was caused by a
lack of national pricing in the CMS rule and fee schedule. 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 iRhythm, investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
Contacts:
The Schall Law Firm
Brian Schall, Esq.,
www.schallfirm.com
Office: 310-301-3335
info@schallfirm.com [GN]
JOYRIDE 365: Slade Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Joyride 365, LLC. The
case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Joyride
365, LLC doing business as: Think Royln, Case No. 1:21-cv-01035
(S.D.N.Y., Feb. 5, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Think Royln -- https://thinkroyln.com/ -- is a NYC-based,
women-owned brand focused on designing fabric designer handbags for
women on the go.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
KANYE WEST: Faces $30MM Class Action Over Mistreatment of Employees
-------------------------------------------------------------------
John Paluska, writing for ChristianHeadlines.com, reports that
Rapper Kanye West is reportedly being sued for $30 million for
breaking California employee laws and overworking employees.
According to The Sun, unnamed sources who commented on the lawsuit
asserted that West improperly classified his Sunday Service show
and Nebuchadnezzar show employees as independent contractors
instead of employees due to the type and nature of the work
involved. The lawsuit reportedly includes at least 1,000 employees
who are suing both West and his companies. It is unknown for sure
which employees are suing which one.
According to the unnamed sources, Kanye needed to provide overtime,
meal breaks, and rest periods for his employees but failed to do
so. The unnamed legal source stated the employees had a "horrible
time."
"Now it's about proving that Kanye is the employer and the buck
stops with him. Now that there's others coming forward, then the
complaint will be amended and be bigger in scope. No one knows how
involved Kanye himself was, if he knew what was going on, as it was
all so last minute, it was terribly ran. Whether it was
mismanagement, accidental, or on purpose, this is a very strong
case," one of the sources added.
Another source argued that Kanye was probably oblivious to what was
happening, but asserted that that is not an excuse.
"When you do things last minute, it's disorganised, 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 . . . I'm pretty sure Kanye West hasn't done anything about
paying a bill in twenty years, he'd expect people to take care of
it," one of the sources said. They also argued that Kanye can't let
the case go to court because it would make it look like the rapper
is "ripping off normal folk."
According to The Christian Post, if Kanye settles, it would be $1
million per each lawsuit, but it will be $30 million if he doesn't.
[GN]
KNOT STANDARD: Rodriguez Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Knot Standard, LLC.
The case is styled as Angel Rodriguez, individually and as the
representative of a class of similarly situated persons v. Knot
Standard, LLC, Case No. 1:21-cv-00639 (E.D.N.Y., Feb. 5, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Knot Standard -- https://www.knotstandard.com/ -- is a custom
menswear company in the United States.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
LEARN TO LIVE: Slade Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Learn to Live, Inc.
The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Learn to
Live, Inc., Case No. 1:21-cv-01037 (S.D.N.Y., Feb. 5, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Learn to Live -- https://www.learntolive.com/ -- offers online
therapy programs for Stress, Depression and Social Anxiety based on
the proven principles of Cognitive Behavioral Therapy (CBT).[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
LIFESHIELD NATIONAL: Nettnay Files TCPA Suit in W.D. Oklahoma
-------------------------------------------------------------
A class action lawsuit has been filed against Lifeshield National
Insurance Co. The case is styled as James Nettnay, Candy Workman,
individually and on behalf of all others similarly situated v.
Lifeshield National Insurance Co., an Oklahoma corporation, Case
No. 5:21-cv-00087-D (W.D. Okla., Feb. 5, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
LifeShield National Insurance Company --
https://www.lifeshieldnational.com/ -- is a life, accident and
health insurance company and has been domiciled in Oklahoma since
1982.[BN]
The Plaintiffs are represented by:
David Humphreys, Esq.
Luke J Wallace, Esq.
Paul M Catalano, Esq.
HUMPHREYS WALLACE HUMPHREYS P.C.
9202 S Toledo Ave
Tulsa, OK 74137
Phone: (918) 747-5300
Fax: (918) 747-5311
Email: David@hwh-law.com
Luke@hwh-law.com
Paul@hwh-law.com
LLOYD A. WISE: Avalos Files Suit in Cal. Super. Ct.
---------------------------------------------------
A class action lawsuit has been filed against LLOYD A. WISE MOTORS,
INC., et al. The case is styled as Leticia Avalos, all other
similarly situated consumers v. LLOYD A. WISE MOTORS, INC., a
California Corporation DBA: Nissan of Vacaville; REDWOOD CREDIT
UNION, a Domestic Nonprofit; Case No. SCV-267808 (Cal. Super. Ct.,
Sonoma Cty., Feb. 5, 2021).
The case type is stated as "Unlimited Business Tort/Unfair Business
Practice."
Nissan of Vacaville -- https://www.vacavillenissan.com/ -- is a new
Nissan and used vehicle dealership in Vacaville, California.[BN]
The Plaintiff is represented by:
John Hendrickson, Esq.
HENDRICKSON LAW GROUP, PC
829 Sonoma Ave, Ste. 8
Santa Rosa, CA 95404
Phone: (707) 540-6199
Email: john@hendricksonlegal.com
LYFT INC: Can't Compel Arbitration in Gonzalez Unpaid Wages Suit
----------------------------------------------------------------
In the case, RENIER GONZALEZ, individually and on behalf of all
others similarly situated, Plaintiff v. LYFT, INC. Defendant, Case
No. 2:19-cv-20569-BRM-JAD (D.N.J.), Judge Brian R. Martinotti of
the U.S. District Court for the District of New Jersey denied
Lyft's Motion to Compel Arbitration.
Plaintiff Gonzalez commenced a putative collective and class action
on behalf of the rideshare drivers using Lyft's online platform
with a Complaint filed on Nov. 21, 2019, which alleged Lyft
violated the Fair Labor Standards Act, and New Jersey wage and hour
laws, by refusing pay minimum wages, overtime wages, and
reimbursement for business expenses to the Plaintiffs.
On March 2, 2020, Lyft moved to compel the Plaintiffs to engage in
individual arbitrations, based on an arbitration provision in the
Terms of Service Agreement that the Plaintiffs allegedly entered
into with Lyft. On April 16, 2020, the Plaintiffs opposed Lyft's
Motion to Compel Arbitration. On May 26, 2020, Lyft filed a Reply
in support of its Motion to Compel Arbitration.
On Oct. 13, 2020, Magistrate Judge Joseph A. Dickson issued a
Report and Recommendation, which recommended denying Lyft's Motion
to Compel Arbitration and conducting a limited discovery regarding
whether the Plaintiffs are exempt from the coverage of the Federal
Arbitration Act ("FAA") pursuant to Section 1 of the FAA. On Oct.
27, 2020, Lyft filed an Objection to Judge Dickson's Report and
Recommendation pursuant to Federal Rule of Civil Procedure 72 and
Local Civil Rule 72.1(c)(2). On Nov. 16, 2020, the Plaintiffs
filed a Reply.
The parties dispute whether the rideshare drivers using Lyft's
online platform qualify as "other class of workers engaged in
foreign or interstate commerce" under Section 1. If so, the
Agreement would be exempted from the FAA's coverage, and Lyft would
be unable to compel arbitration.
Lyft insists the Plaintiffs are not members of "other class of
workers engaged in foreign or interstate commerce" under Section 1.
It argues Judge Dickson erred in construing the term "engaged in
interstate commerce" in Section 1 to have the same breadth as
"involving interstate commerce" in Section 2 of the FAA, because
the Section 1 exemption requires a "narrow construction" and "has a
more limited reach" than Section 2.
The Plaintiffs counter the disposition of Lyft's motion is
controlled by Singh v. Uber Technologies, Inc., 939 F.3d 210,
226-27 (3d Cir. 2019), which found the Uber drivers were members of
a class of workers engaged in interstate commerce under Section 1.
They argue Singh is consistent with the narrow reading of "engaged
in commerce" in Circuit City. The Plaintiffs maintain Judge
Dickson did not base his construction of Section 1 on finding a
substantially equivalent meaning between "involving" and "engaged"
as the two terms appear in the FAA. They point out the cases on
which Lyft for its argument that interstate movement must be
predominant in Plaintiffs' work are not binding in the Third
Circuit, and are mostly factually distinguished from Singh and the
present case.
Judge Martinotti agrees with the Plaintiffs and with Judge
Dickson's construction of Section 1. First, Judge Dickson rejected
Lyft's interpretation of the word "engaged" as too restricted, by
observing that the dictionary definition cited by Lyft in support
of its interpretation "provided 'involved' as an alternate
definition for the term 'engaged.'" But this does not mean Judge
Dickson actually adopted that dictionary definition in construing
Section 1. Second, Judge Dickson's construction of Section 1 does
not conflict with the "narrow construction" under Circuit City
Stores v. Adams, 532 U.S. 105, 118 (2001). Circuit City did not
construe "other class of workers" under Section 1 as limited to the
workers transporting goods.
Third, the binding precedents in the Third Circuit support Judge
Dickson's construction. Finally, Lyft cited a number of cases for
its proposition that, to trigger Section 1, interstate movement
must be the predominant and central part of Plaintiffs' work. But
none of them is a Third Circuit case. As a result, Judge
Martinotti declines to follow these non-binding cases.
Next, Lyft objects to Judge Dickson's reliance on Singh to mandate
discovery whenever a plaintiff invokes the Section 1 exemption and
reject resolving a pre-discovery motion to compel arbitration based
on the parties' affidavits. It contends it has already introduced
information associated with the "various factors" in Singh bearing
on the determination of the Section 1 exemption, but that the
Plaintiffs failed to meet the burden of showing the Section 1
exemption applies by articulating the need for discovery. Lyft
maintains the Plaintiffs must submit something similar to a Rule
56(d) affidavit or declaration describing the nature and extent of
discovery that they believed was necessary to resist Lyft's
arbitration motion.
The Plaintiffs state discovery cannot be triggered merely by
invoking the Section 1 exemption, because a defendant may still
challenge a plaintiff's complaint under Rule 12(b)(6), which
requires a plaintiff to set forth sufficient facts to state a claim
for relief plausible on its face. They argue, under Singh, they
need not come forward with evidence beyond the well-plead
allegations in the Complaint.
Judge Martinotti again agrees. First, Judge Dickson in essence,
only declined to impose the procedural requirements (similar to
those) under Rule 56(d), which he agrees. Second, discovery is
warranted even if Lyft has introduced information associated with
the "various factors" in Singh, because the Plaintiffs have
introduced facts that place the issue of arbitrability in dispute.
As a result, the Plaintiffs have presented facts, which Lyft does
not dispute, sufficient to place the issue of arbitrability in
issue. Accordingly, the Rule 56 standard applies, and discovery is
warranted. In conclusion, the Plaintiffs are entitled to a limited
discovery regarding whether they belong to a class of workers
engaged in interstate commerce under Section 1.
Lyft maintains, if the Court determines re-briefing a motion to
compel arbitration after additional discovery is warranted, Judge
Martinotti, at this stage, should resolve certain legal disputes
the parties have already raised, in order to provide appropriate
guidance. It refers to three such legal disputes: (1) whether the
relevant "class of workers" for Section 1 purposes should be
defined on a nationwide basis; (2) whether intrastate rides to and
from airports or rail and bus stations are irrelevant as a matter
of law to the Section 1 inquiry; and (3) whether the Section 1
inquiry should focus on the percentage or absolute amount of
interstate travel in the Plaintiffs' work.
Judge Martinotti declines to address these legal disputes for this
review, as they were not addressed in Judge Dickson's Report and
Recommendation. He may decide these legal disputes if they arise
during discovery.
For the reasons he set forth, Judge Martinotti adopted Judge
Dickson's Report and Recommendation, and denied Lyft's Motion to
Compel Arbitration.
A full-text copy of the Court's Jan. 29, 2021 Opinion is available
at https://tinyurl.com/4qm8dzpd from Leagle.com.
MARKET VIEW: Faces Class Action Lawsuit Over Tribal Loans
---------------------------------------------------------
Law360 reports that a Pennsylvania woman has brought a proposed
class action in federal court against Nevada-based broker Market
View LLC and New York-based debt collector Northwood Asset
Management Group LLC, she claims conspired with tribe-owned online
lender American Web Loan to sell and collect debt for loans with
illegally high interest rates. [GN]
MDL 2323: 45% D.C. Atty. Fees Given to Locks Law, 55% to Langfitt
-----------------------------------------------------------------
In the case, IN RE NATIONAL FOOTBALL LEAGUE PLAYERS' CONCUSSION
INJURY LITIGATION. Kevin Turner and Shawn Wooden, on behalf of
themselves and others similarly situated, Plaintiffs v. National
Football League and NFL Properties, LLC, successor-in-interest to
NFL Properties, Inc., Defendants. THIS DOCUMENT RELATES TO Locks
Law Firm v. SPID 100002295 (D.C.) Attorney Lien Dispute Case No.
01541, Case No. 2:12-md-02323-AB, MDL No. 2323 (E.D. Pa.),
Magistrate Judge David R. Strawbridge of the U.S. District Court
for the Eastern District of Pennsylvania apportioned the attorney
fees derived from the Player's monetary award as follows: 45%
allocated to Locks Law Firm and 55% allocated to Langfitt Garner
PLLC.
Presently before the Court in the NDL's Concussion Injury
Litigation is the assertion of an Attorney Lien by Locks against
the Award granted to their former client, Settlement Class Member
D.C. ("Player"), in the litigation that became part of the class
action. By its lien, Locks Law seeks reimbursement of its costs
and payment of attorneys' fees of 20% of the Award that has been
authorized for Player. By his current counsel, Langfitt, the
Player challenges the Lien given that Langfitt also seeks a
contingent fee for its work in representing him. That work, which
the Player agreed would be compensated also with a contingent fee
of 20% of any monetary award he received, involved Langfitt
responding to requests for additional information and an audit of
the claim, ultimately resulting in approval of the sought-after
monetary award.
The Player entered into a contingent fee agreement ("CFA") with
Locks in February 2018 for representation in the NFL Concussion
Settlement, for which he had been registered by prior counsel.
Under the terms of the fee agreement, and contingent upon the
Player obtaining a recovery, Locks would charge a fee of 20% of the
net recovery.
Locks promptly set to work to develop the claim. On April 2, 2019,
Locks filed the claim on Player's behalf seeking a monetary award
based upon the qualifying diagnosis, Level 1.5 Neurocognitive
Impairment that neurologist Jonathan Mueller, M.D., had identified.
Following the audit process, a Notice of Award was issued on Feb.
14, 2020, approving a Monetary Award to Player based upon Dr.
Mueller's diagnosis.
In light of the attorney lien and the contingency fee agreements of
record, the Claims Administrator withheld from the Player's award
funds for payment of attorney fees in an amount equal to 22% of the
Monetary Award that was approved on Feb. 14, 2020. This percentage
reflects the presumptive cap on attorney's fees imposed by the
Court's April 5, 2018 Opinion and Order. Of the attorney fee
withholding, a portion reflecting 5% of the Award was separately
deposited into the Attorneys' Fees Qualified Settlement Fund
("AFQSF") pursuant to the Court's June 27, 2018 Order Regarding
Withholdings for the Common Benefit Fund. Those funds may be
distributed at a later date upon further order(s) of Judge Brody.
The Claims Administrator also withheld the amount of costs asserted
by Locks in its Notice of Lien.
Pursuant to a briefing schedule, the Court issued through the
Claims Administrator, and in accordance with the Lien Rules, both
law firms submitted simultaneous Statements of Dispute on June 10,
2020 concerning their entitlement to a fee in light of the other
firm's CFA or attorney lien. Each submitted a Response to the
other's filing on June 26, 2020. Pursuant to Lien Rule 17, the
Record of Dispute was then referred to us for a determination as to
the appropriate distribution for the attorney fees currently
available for disbursement (representing 17% of the Player's Award)
and the allocation of those funds that are currently held in the
AFQSF (representing 5% of the Player's Award), if those funds, or a
portion thereof, are distributed by the Court at a future date.
Langfitt contends that it should be paid "significantly more than
Locks," in that Langfitt's "well-documented work enhanced and
finalized the Claim, defended the Claim, and created the fund." It
notes that it did extensive work after the claim was filed and that
Locks "did not spend nearly as any hours as Langfitt and did not
face the scrutiny of an intensive audit" nor perform "the detailed
analytical work Langfitt performed in the claims and audit
process."
While Magistrate Judge Strawbridge does not mean to diminish the
work done by Locks, he ultimately concludes that the work performed
by Langfitt warrants a larger share of the fee derived from the
Player's award. He states that the work performed by Locks Law
during the claim development and filing stages played an important
role in preserving the possibility of a Level 1.5 Neurocognitive
Impairment award. Further work was required to achieve that
result, however, and that work was performed by Langfitt. Langfitt
also weathered periods of uncertainty from the beginning of its
stewardship of the claim in July 2019, with the claim facing
detours following only a preliminary review, and then through an
audit process. Langfitt did what was necessary to see this claim
through to a successful conclusion.
Magistrate Judge Strawbridge concludes that a fair resolution of
the dispute is to award IRPA fees to be apportioned between Locks
Law and Langfitt Garner such that the two firms share a total fee
of 20% of the client's award, with 45% of the fee allocated to
Locks and 55% allocated to Langfitt. Locks is authorized to be
reimbursed for its costs. The remaining funds withheld for the
counsel fee, based on the Claims Administrator having withheld
counsel fee based upon the 22% presumptive cap, and which have not
been authorized for either firm as set forth above, may be refunded
to the Player.
The Claims Administrator will reduce the disbursements in light of
the 5% holdback and will apportion the holdback funds between Locks
Law, Langfitt Garner, and the Player in the proportion set forth.
An appropriate Order follows.
A full-text copy of the Court's Jan. 29, 2021 Memorandum Opinion is
available at https://tinyurl.com/8kjh68jx from Leagle.com.
MDL 2987: Torres, et al. Seek Transfer of 5 Suits to E.D. Michigan
------------------------------------------------------------------
Plaintiffs Andres Torres, Thomas Whittaker, Carol Whittaker, Mary
Elizabeth McQuarrie, DeShawn Dickinson, Greg Field, Joseph Poletti,
James Kotchmar, and Robert Allen seek approval from the United
States Judicial Panel on Multidistrict Litigation on January 22,
2021, to transfer related actions to the U.S. District Court for
the Eastern District of Michigan under MDL No. 2987, IN RE: General
Motors LLC Chevrolet Bolt EV Battery Products Liability Litigation,
for coordinated or consolidated pretrial proceedings.
The actions include:
-- Michelle Pankow et al. v. General Motors, LLC,
Case No. 5:20-cv-02479 (C.D. Cal.);
-- Zahariudakis v. General Motors, LLC,
Case No. 4:20-cv-08106 (N.D. Cal.);
-- Torres v. General Motors LLC,
Case No. 1:20-cv-07109 (N.D. Ill.);
-- Altobelli et al v. General Motors LLC
Case No. 2:20-cv-13256 (E.D. Mich.); and
-- Rankin v. General Motors LLC
Case No. 2:20-cv-13279 (E.D. Mich.).
General Motors LLC is an American multinational corporation
headquartered in Detroit that designs, manufactures, markets, and
distributes vehicles and vehicle parts, and sells financial
services, with global headquarters in Detroit's Renaissance
Center.[BN]
MDL 2988: All-Clad Seeks Transfer of 4 Suits to W.D. Pennsylvania
-----------------------------------------------------------------
Defendants All-Clad Metalcrafters, LLC and Groupe SEB USA, Inc.
seek approval from the United States Judicial Panel on
Multidistrict Litigation on January 22, 2021, to transfer related
actions to the U.S. District Court for the Western District of
Pennsylvania under MDL No. 2988, IN RE: All-Clad Metalcrafters,
LLC, Cookware Marketing and Sales Practices Litigation, for
coordinated or consolidated pretrial proceedings.
The actions include:
-- Mears v. All-Clad Metalcrafters, LLC et al.,
Case No. 3:20-cv-02662 (N.D. Cal.);
-- Montalvo v. All-Clad Metalcrafters, LLC et al.,
Case No. 9:20-cv-82384 (S.D. Fla.);
-- Murray et al v. All-Clad Metalcrafters, LLC et al.,
Case No. 1:21-cv-00095 (N.D. Ga.); and
-- EGIDIO v. ALL-CLAD METALCRAFTERS, LLC et al.,
Case No. 1:20-cv-12025 (D. Mass.).
All-Clad Metalcrafters, LLC is a U.S. manufacturer of cookware with
headquarters in Canonsburg, Pennsylvania.[BN]
MIDWESTERN PET: Faces Class Action Over Contaminants in Pet Foods
-----------------------------------------------------------------
Keller and Heckman LLP on Feb. 1 disclosed that the law firm
previously discussed a December 30, 2020 alert from FDA regarding
recalls by Midwestern Pet Food, Inc. of nine total lots of Sportmix
pet food products following reports of death and illness in dogs
after consuming the products. As discussed in an updated alert, the
recall was expanded on January 11, 2021 to include all pet food
products containing corn (more than 1000 lot codes of dog food and
cat food) that were made in the firm's Oklahoma plant and that
expire on or before July 9, 2022. As of FDA's updated, January 26,
2021 alert, more than 110 pets have died and more than 210 pets are
sick after have consumed certain pet food manufactured by
Midwestern Pet Foods. Another recent recall of dog food (September
2, 2020 by Sunshine Mills, Inc.) was triggered by a finding of
elevated levels of aflatoxin in routine sampling of a single
4-pound bag of one lot of product but has not been associated with
any deaths or illness.
On January 28, 2021, a group of consumers with dogs that died or
became ill after consuming the now-recalled product from Midwestern
Pet Foods have filed a proposed class action lawsuit in the U.S.
District Court for the Southern District of Indiana on behalf of a
nationwide class and a California state class of buyers of
Midwestern Pet Foods' cat and dog foods. The plaintiffs, who allege
negligent misrepresentation, fraud, and unjust enrichment, seek
restitution and over $5 million in damages to be determined in a
jury trial.
It is yet to be seen how Midwestern Pet Foods will respond. In
earlier litigation following a pet food recall in 2005-2006
associated with aflatoxin contamination and involving a large
number of deaths in dogs, it was reported that Diamond Pet Foods,
Inc. agreed to pay $3.1 million dollars in a settlement with pet
owners. [GN]
MINICLIP SA: Mastel Suit Alleges Wiretapping Through Mobile App
---------------------------------------------------------------
DEREK MASTEL, individually and on behalf of all others similarly
situated v. MINICLIP SA and APPLE INC., Case No. 2:21-at-00059
(E.D. Cal., Jan. 21, 2021) is a class action suit brought against
Defendants for wiretapping the electronic communications of users
of Defendant Miniclip's 8 Ball Pool mobile application.
According to the complaint, Miniclip, without a user's permission
and with the aid of Apple, is able to view text entries saved on
the Pasteboard on an iPhone device, even though such text came from
other mobile applications. By doing so, Defendants have allegedly
violated the California Invasion of Privacy Act, invaded
Plaintiff's and members of the Classes' privacy rights in violation
of the California Constitution, violated the Stored Communications
Act, and violated California's Unfair Competition Law.
Mr. Mastel, a California resident, downloaded the App on his iPhone
in or about December 2013. Unbeknownst to Mr. Mastel, the App was
reading any text that Mr. Mastel had copied to his Pasteboard, such
as his contact information, addresses for friends and relatives, as
well as personal and private messages that have been sent to
friends and relatives, the suit says.
Miniclip is a Swiss free browser game Website.
Apple Inc. is an American multinational technology company
headquartered in Cupertino, California, that designs, develops, and
sells consumer electronics, computer software, and online
services.[BN]
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Joel D. Smith, Esq.
BURSOR & FISHER, P.A.
1990 North California Boulevard, Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-mail: ltfisher@bursor.com
jsmith@bursor.com
MONASH IVF: Faces Class Action Over Defective Screening Test
------------------------------------------------------------
Dr Patrick Foong, writing for BioNews, reports that a law firm has
filed a class action against Monash IVF, one of Australia's largest
IVF clinics, following allegations that the fertility clinic may
have destroyed healthy embryos through a defective non-invasive
genetic screening test (PGT-A test). It has been alleged that the
defendants' testing performed on embryos may have resulted in
embryos being incorrectly classified as abnormal, ie, generating
false-positive results. The IVF patients and some of their partners
sued for tens of millions of dollars in financial compensation,
with many concerned they may have been stripped of their chance of
bearing children.
In the class action, the lead plaintiff, Danielle Bopping who is in
her 40s, was informed by Monash IVF that her last embryo, which had
been categorised as abnormal, may have been viable (see BioNews
1079). They claim that the fertility clinic may have incorrectly
labelled healthy embryos as abnormal before disposing of them
through a now-suspended non-invasive genetic testing programme.
Legal documents were filed in the Supreme Court of the state of
Victoria, Australia against Monash IVF on behalf of patients who
had embryos genetically tested with the IVF clinic between May 2019
and October 2020. The allegation is that Monash IVF has breached
its legal duty of care owed to their patients by failing to inform
them that genetic testing could return a false-positive. Such an
omission could amount to misleading behaviour. As lead plaintiff,
Bopping will provide instructions to the law firm regarding the
case's conduct and may give evidence during the legal proceeding.
Genetic screening allows the detection of gene mutations that could
be inherited by the next generation, determining the offspring's
risk of being born with severe or deadly genetic conditions. The
lawsuit emerges amid revelations that the innovative genetic
testing used by Monash IVF is less reliable than initially thought.
More than 1000 Monash IVF patients could be victims. This could be
one of the most significant class actions ever lodged against a
fertility provider in Australia, and comprises plaintiffs from
various states including Victoria, New South Wales, the Australian
Capital Territory, Northern Territory, Tasmania, Queensland and
South Australia. Members of the class action seek compensation for
financial losses as well as pain and suffering, with some worried
they may have lost their chance to have offspring. For the
patients, the news has only added to the stress of a long and
tedious fertility process.
The class action comes after a 2018 independent review into
Victoria's regulatory framework of assisted reproductive services
(Gorton review), led by Michael Gorton AM. The review explored
whether there are sufficient safeguards to protect patients
resorting to assisted reproductive treatment. Among the inquiry's
findings, there were various incidents, including a doctor who
allegedly transferred an unviable embryo into a patient. In another
incident, defective incubators in a fertility treatment provider's
laboratory resulted in the loss of several embryos. The affected
patients were not informed of the equipment failure but were led to
believe that the embryos succumbed naturally.
A class action is a crucial part of the legal system in which
disputes and claims involving vast numbers of claimants to be
determined in just one case, allowing ordinary people to hold huge
organisations responsible for misconduct. Class actions provide an
avenue to people who otherwise would be denied justice and
compensation.
In Australia, where at least seven plaintiffs have claims that
arise out of comparable events, a class action lawsuit can be
brought by one claimant on their own behalf as well as a
representative of the other group members (Bopping). The
requirement of at least seven plaintiffs is a lower threshold
compared to other jurisdictions. A huge advantage of a class action
is that it saves time and expense. It avoids the need for the judge
to determine common issues of fact or law more than once, enabling
the recovery of losses reasonably and efficiently and at less
individual cost.
While individuals often lack the resources to tackle a mammoth
organisation, when enough IVF patients have suffered a similar
grievance, together, they can become formidable. Indeed, class
actions are a force for accountability as well as corporate and
social responsibility. This class action may set a precedent for
other jurisdictions especially for common law nations. [GN]
MRS ASSOCIATES: Deutsch Files FDCPA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against MRS Associates, et
al. The case is styled as David Deutsch, individually and on behalf
of all others similarly situated v. MRS Associates, ARS National
Services, Inc., Case No. 7:21-cv-01079 (S.D.N.Y., Feb. 7, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
MRS Associates -- http://www.mrsbpo.com/-- is a third-party debt
collection agency based out of Cherry Hill, New Jersey.[BN]
The Plaintiff is represented by:
David M. Barshay, Esq.
BARSHAY, RIZZO & LOPEZ, PLLC
445 Broadhollow Road, Suite Cl18
Melville, NY 11747
Phone: (631) 210-7272
Fax: (516) 706-5055
Email: dbarshay@brlfirm.com
NATIONAL FIRE: Judge Grants Motion to Dismiss Insurance Class Suit
------------------------------------------------------------------
Brian Searls, Esq., of Chartwell Law, in an article for JDSupra,
reports that on January 15, 2021, U.S. District Judge William S.
Stickman granted defendant National Fire & Marine Insurance
Company's Motion to Dismiss a complaint filed by plaintiff 1
S.A.N.T, Inc. 1 S.A.N.T. brought a putative class action lawsuit
against National Fire, seeking insurance coverage for loss of
business income due to COVID-19-related restrictions placed on it.
1 S.A.N.T. operates Lawrence County-based Gatherings Banquet and
Event Center as well as the adjacent tavern, Town & Country. 1
S.A.N.T claimed that it incurred and continues to incur a
substantial loss of business income and other expenses due to
Governor Tom Wolf's March 19, 2020 Executive Order which closed all
non-life sustaining businesses, including 1 S.A.N.T. 1 S.A.N.T.
submitted a business interruption claim to National Fire, its
commercial property insurance company. National Fire denied the
claim, citing to multiple policy provisions.
In its complaint, 1 S.A.N.T. asserted that the policy provided
coverage for "direct physical loss of or damage to Covered Property
. . . caused by or resulting from any Covered Cause of Loss." 1
S.A.N.T. took the position that the policy did not define the
phrase "direct physical loss of or damage to" but that the use of
the word "or" in the phrase "direct physical loss of or damage to"
meant that coverage would be triggered if either a physical loss of
property or damage to property occurs. The complaint goes on to
assert that "[p]hysical loss of, or damage to, property may be
reasonably interpreted to occur when a covered cause of loss
threatens or renders property unusable or unsuitable for its
intended purpose or unsafe for normal human occupancy and/or
continued use." 1 S.A.N.T. further noted that the policy afforded
payment for "the actual loss of Business or Rental Income you
sustain due to the necessary 'suspension' of your 'operations'
during the 'period of 'restoration.' The 'suspension' must be
caused by direct physical loss of or damage to property at premises
which are described in the Declarations and for which a Business
Income Limit of Insurance is shown in the Declarations."
1 S.A.N.T. also claimed that coverage was afforded for loss of
business income resulting from an "action of civil authority" which
prohibited access to the insured property due to a "Covered Cause
of Loss" at property other than the covered property.
In its motion to dismiss, National Fire argued that: (1) 1 S.A.N.T.
did not sustain "direct physical loss of or damage to Covered
Property" necessary to trigger coverage under the Policy; (2) 1
S.A.N.T.'s Policy excluded the alleged loss or damage because it
was caused by COVID-19, which is barred by the Virus Exclusion
provision; and (3) the orders issued by state and local governments
in response to COVID-19 did not prohibit access to 1 S.A.N.T.'s
property (alternative operations were available, such as take-out),
which was required to trigger Civil Authority coverage.
1 S.A.N.T. opposed the motion to dismiss, arguing that (1) physical
alteration was not required to trigger coverage for physical loss
or damage, and that coverage was in fact triggered because 1
S.A.N.T. could not use the property for its intended purpose; (2)
that "the Virus Exclusion did not bar coverage because Governor
Wolf's orders were the efficient, proximate cause of 1 S.A.N.T.'s
loss and not the virus." Notwithstanding, "the ubiquitous presence
of the virus is enough to constitute a covered cause of loss."; and
(3) National Fire should be estopped from applying the Virus
Exclusion provision under the theory of Regulatory Estoppel.
The court looked to the plain, collective meaning of "direct
physical loss of" or "direct physical damage to" since neither was
defined in the policy. It ultimately concluded that "there is no
reasonable question that the policy language presupposes that the
request for coverage stems from an actual impact to the property's
structure, rather than the diminution of its economic value because
of governmental actions that do not affect the structure."
As to 1 S.A.N.T.'s argument that there was "direct physical loss of
or damage to" the property because COVID-19 is a physical substance
that is readily transmissible and ubiquitous, the court held that
this was distinguishable from other cases cited to by 1 S.A.N.T
involving actual impending danger already impacting the property.
Here, the court reasoned that even if COVID-19 was "so ubiquitous
as to be considered present at the insured property, it still does
not fall within the policy definition for a covered loss."
Because 1 S.A.N.T. did not sustain "direct physical loss of or
damage to property," the court found that it did not have coverage
under the Civil Authority provision of the policy which required an
"action of civil authority that prohibits access to the described
premises due to direct physical loss of or damage to property,
other than at the described premises, caused by or resulting from
any Covered Cause of Loss." That aside, the court held that
coverage could be denied because "reduction to partial access does
not suffice to trigger business income coverage under the Civil
Authority provisions." Here, 1 S.A.N.T.'s business remained opened
for take-out and delivery. In sum, the court's ruling came down to
how it interpreted "direct physical loss of or damage to covered
property."
Other courts have taken the same approach. In Rose's 1, LLC v. Erie
Insurance Exchange, 2020-CA-00242B, the District of Columbia
dismissed an action brought by a group of restaurants for
COVID-19-related business interruption coverage. The restaurants
argued that because a loss under the policy was defined as
encompassing either a loss or damage, a loss of use of the
restaurants triggered coverage. The court rejected this argument,
finding "loss" was modified by the words "direct" and "physical"
that immediately preceded it.
In Sandy Point Dental PC v. The Cincinnati Insurance Company,
20-cv-2160 (N.D. Ill. 2020), a federal judge held there was no
coverage afforded for the losses a dentist's office incurred when
it was forced to shut down during the COVID-19 pandemic. The court
reasoned that the policy language "unambiguously" required
"demonstrable, physical alteration to the property" to trigger
coverage.
Not all courts have denied attempts to recover COVID-19-related
losses under business insurance policies. For instance, in Studio
417, Inc., et al. v. The Cincinnati Ins. Comp., No. 20-cv-03127-SRB
(W.D.Mo. 2020), a federal judge denied a motion to dismiss filed by
Cincinnati Insurance Company based on the now ubiquitous argument
that COVID-19 cannot satisfy the requirement that "direct physical
loss or damage" caused the loss. The court held that the coverage
trigger is physical loss or damage and that it "must give meaning
to both terms." To adopt Cincinnati's argument would be to conflate
physical loss with physical damage.
With local and state-wide shutdowns across many parts of the
country, the fight for coverage, or lack thereof, for
COVID-19-related business income losses will continue into the
foreseeable future. Courts will likely remain split, although the
majority of recent decisions do not favor the policyholder. In
fact, a recent article published by JDSupra estimates roughly 85
percent of the motions to dismiss filed by insurers across some 30
states have been granted.[1] Of course, whether a particular
business has insurance coverage for such losses will depend on the
type of coverage in place, the specific terms of the policy, and
the underlying facts of the claim. [GN]
NAVIENT CORP: Misallocated Student Loan Payments, Gallagher Says
----------------------------------------------------------------
VICTORIA GALLAGHER and MEGAN O'DONNELL v. NAVIENT CORPORATION &
NAVIENT SOLUTIONS, LLC, Case No. 1:21-cv-01052-JHR-AMD (D.N.J.,
Jan. 22, 2021) is a class action complaint brought on behalf of
student loan borrowers for the fraudulent, illegal, and negligent
actions and inactions of Defendants with respect to their
misallocation of payments made by Plaintiffs and others similarly
situated in violation of the New Jersey Consumer Fraud Act.
According to the complaint, the Defendants had misallocated and
continues to misallocate payments made by student loan borrowers
such as Plaintiffs since at least March 13, 2020. The Defendants
materially breached Servicing Contract and Promissory Notes by
allegedly failing to administer Plaintiffs' loans in accordance
with federal law and state law. The Defendants therefore
negligently made false and misleading misrepresentations of fact to
Plaintiffs and the Class and Subclass, including false and
misleading loan balances and false and misleading statements
regarding interest capitalization, the suit says.
Navient is a U.S. corporation based in Wilmington, Delaware, whose
operations include servicing and collecting student loans.[BN]
The Plaintiff is represented by:
David M. Cedar, Esq.
Gerald J. Williams, Esq.
WILLIAMS CEDAR, LLC
8 Kings Highway West, Suite B
Haddonfield, NJ 08033
Telephone: (856) 470-9777
Facsimile: (888) 311 4899
E-mail: dcedar@williamscedar.com
gwilliams@williamscedar.com
- and -
Noah Axler, Esq.
Marc A. Goldich, Esq.
AXLER GOLDICH LLC
1520 Locust Street, Suite 301
Philadelphia, PA 19102
Telephone: (267) 534-7400
Facsimile: (267) 534-7407
E-mail: naxler@axgolaw.com
mgoldich@axgolaw.com
NBCUNIVERSAL MEDIA: Winegard Files ADA Suit in E.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against NBCUniversal Media,
LLC. The case is styled as Jay Winegard, on behalf of himself and
all others similarly situated v. NBCUniversal Media, LLC, Case No.
1:21-cv-00659 (E.D.N.Y., Feb. 7, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
NBCUniversal Media, LLC -- https://www.nbcuniversal.com/ -- is an
American mass media and entertainment conglomerate owned by Comcast
and headquartered at 30 Rockefeller Plaza in Midtown Manhattan, New
York City.[BN]
The Plaintiff is represented by:
Mitchell Segal, Esq.
LAW OFFICES OF MITCHELL SEGAL P.C.
1129 Northern Boulevard, Suite 404
Manhasset, NY 11030
Phone: (516) 415-0100
Email: msegal@segallegal.com
OBALON THERAPEUTICS: April 22 Settlement Fairness Hearing Set
-------------------------------------------------------------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
In re OBALON THERAPEUTICS, INC. SECURITIES LITIGATION
This Document Relates To:
ALL ACTIONS.
Master File No. 3:18-cv-00352-AJB-AHG
CLASS ACTION
SUMMARY NOTICE
TO: ALL PERSONS AND ENTITIES WHO PURCHASED THE COMMON STOCK OF
OBALON THERAPEUTICS, INC. ("OBALON") BETWEEN OCTOBER 6, 2016 AND
MAY 11, 2018, INCLUSIVE
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Southern District of California, that a
hearing will be held on April 22, 2021, at 2:00 p.m., before the
Honorable Anthony J. Battaglia, United States District Judge, at
the United States District Court for the Southern District of
California, 221 West Broadway, Courtroom 4A, San Diego, California
92101, for the purpose of determining: (1) whether the proposed
settlement of the claims in the Litigation for the principal amount
of $3,150,000.00, plus interest, should be approved by the Court as
fair, just, reasonable, and adequate; (2) whether a Final Judgment
and Order of Dismissal with Prejudice should be entered by the
Court dismissing the Litigation with prejudice; (3) whether the
Plan of Allocation is fair, reasonable, and adequate and should be
approved; and (4) whether the application of Lead Counsel for the
payment of attorneys' fees and expenses and award to Lead Plaintiff
pursuant to 15 U.S.C. §78u-4(a)(4) in connection with its
representation of the Class in this Litigation should be approved.
The Court may adjourn the Settlement Hearing or hold it via
videoconference or teleconference without further notice to the
Class Members.
IF YOU PURCHASED THE COMMON STOCK OF OBALON BETWEEN OCTOBER 6, 2016
AND MAY 11, 2018, INCLUSIVE, YOUR RIGHTS MAY BE AFFECTED BY THE
SETTLEMENT OF THIS LITIGATION. If you have not received a detailed
Notice of Pendency and Proposed Settlement of Class Action
("Notice") and a copy of the Proof of Claim and Release form, you
may obtain copies by writing to In re Obalon Therapeutics, Inc.
Securities Litigation, Claims Administrator, c/o A.B. Data, Ltd.,
P.O. Box 173031, Milwaukee, WI 53217, or on the internet at
www.ObalonSecuritiesLitigation.com. If you are a Class Member, in
order to share in the distribution of the Net Settlement Fund, you
must submit a Proof of Claim and Release by mail (postmarked no
later than April 22, 2021) or if submitted electronically no later
than April 22, 2021, establishing that you are entitled to
recovery.
If you are a Class Member and you desire to be excluded from the
Class, you must submit a request for exclusion such that it is
postmarked no later than April 1, 2021, in the manner and form
explained in the detailed Notice, referred to above. All Class
Members who do not timely and validly request exclusion from the
Class in response to the Notice will be bound by any judgment
entered in the Litigation pursuant to the Stipulation and Agreement
of Class Action Settlement.
Any objection to the Settlement, the Plan of Allocation, and/or the
fee and expense application must be mailed to each of the following
recipients, such that it is received no later than April 1, 2021:
CLERK OF THE COURT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
333 West Broadway, Suite 420
San Diego, CA 92101
Lead Counsel:
ROBBINS GELLER RUDMAN
& DOWD LLP
RACHEL L. JENSEN
655 West Broadway, Suite 1900
San Diego, CA 92101
Counsel for Defendants:
LATHAM & WATKINS LLP
COLLEEN SMITH
12670 High Bluff Drive
San Diego, CA 92130
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
If you have any questions about the Settlement, you may contact
Lead Counsel at the address listed above.
DATED: FEBRUARY 1, 2021
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA [GN]
POLAND: Opposition MPs Mull Class Action Over Lockdown
------------------------------------------------------
ThefirstNEWS reports that opposition MPs have warned the government
that if it does not reopen the economy they will file a class
action lawsuit against the State Treasury.
The warning comes as many Polish businesses struggle with the
painful economic consequences of lockdown restrictions.
"We will act as parliamentarians," the leader of the Polish
People's Party (PSL) Wladyslaw Kosiniak-Kamysz said on Feb. 2. "We
will turn to lawyers who are already preparing a class action. And
we will invite all those aggrieved to join this class action."
Kosiniak-Kamysz told Polish Radio Three that this is an initiative
"to defend entrepreneurship and entrepreneurs" suffering from the
effects of the government's Covid-19-related restrictions.
The PSL leader added that the government should open the economy.
"The government should also hold talks with entrepreneurs," he
added. [GN]
PORCH.COM: Faces Class Action Over Overtime Pay Calculations
------------------------------------------------------------
Law360 reports that Porch.com deliberately neglected to factor
commissions and bonuses into overtime pay calculations for
employees, allowing the home improvement services website to
underpay hundreds of workers, according to a former employee's
putative class action in California federal court. [GN]
PORSCHE: Faces Suit Over Damaged Batteries Due to Software Update
-----------------------------------------------------------------
Law360 reports that an Ohio driver has filed a proposed class
action against Porsche alleging that a software update seriously
damaged his car's batteries and caused potentially dangerous
malfunctions to its "infotainment" system. [GN]
POSTMATES INC: Cal. App. Affirms Arbitration Denial in Santana Suit
-------------------------------------------------------------------
In the case, WENDY SANTANA, Plaintiff and Respondent v. POSTMATES,
INC., Defendant and Appellant, Case No. B296413 (Cal. App.), the
Court of Appeals of California for the Second District, Division
Two, affirmed the trial court's order denying Postmates' petition
for arbitration.
Plaintiff Santana began working as a courier for Postmates in
September 2017. As a courier, she delivered products from local
merchants to customers who placed orders through Postmates' on-line
platform. As a condition of working for Postmates, Santana
executed a "Fleet Agreement" governing her employment. The
Employment Agreement included an arbitration provision.
The representative action waiver stated that the parties agreed
that "by entering into the Agreement, they waive their right to
have any dispute or claim brought, heard or arbitrated as a
representative action, or to participate in any representative
action, and an arbitrator will not have any authority to arbitrate
a representative action." The Employment Agreement included a
provision permitting Santana to opt out of the arbitration
provision. She did not do so.
Ms. Santana filed her original complaint in the action on Sept. 4,
2018. The complaint alleged a single cause of action "on behalf of
aggrieved employees" pursuant to the Labor Code Private Attorneys
General Act of 2004 ("PAGA"). Santana claimed that Postmates
willfully misclassified its couriers as independent contractors
rather than employees to minimize costs. She alleged that
Postmates' couriers are "under the control and direction of
Postmates in connection with the performance of their work, perform
work that is part of the usual course of Postmates' business, and
are not customarily engaged in an independently established trade,
occupation or business in the same nature of the work performed for
Postmates."
Ms. Santana alleged that Postmates' misclassification of its
couriers as independent contractors deprived her and other couriers
of various statutory and regulatory rights given to employees,
including minimum wages, mandated meal breaks, rest breaks, premium
payment for missed breaks, itemized wage statements, timely payment
of wages, and workers compensation protection. She sought
penalties, attorney fees and costs "individually, and on behalf of
all aggrieved employees," which, under the PAGA, would be
distributed 75% to the Labor and Workforce Development Agency and
25% to the aggrieved employees.
Ms. Santana subsequently filed a first amended complaint ("FAC") to
clarify that she sought only civil penalties under the PAGA and not
any individual relief. Like her original complaint, Santana's FAC
sought civil penalties under section 2699 along with attorney fees
and costs, and also clarified that Santana is not seeking any sort
of individualized (i.e., victim-specific) relief as described in
Esparza v. KS Industries, L.P. (2017) 13 Cal. App. 5th 1228."
Postmates filed a petition to compel arbitration on Oct. 12, 2018.
The petition acknowledged the holding in Iskanian v. CLS
Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, that PAGA
waivers are unenforceable under state law. However, Postmates
argued that the representative action waiver in the Employment
Agreement should be enforced because Epic Sys. Corp. v. Lewis
(2018)_U.S._ (138 S.Ct. 1612), undermined the basis for the State
Supreme Court's holding in Iskanian. In her opposition, Santana
argued that Epic Systems did not consider whether the FAA preempts
the state law rule established in Iskanian prohibiting enforcement
of PAGA waivers.
The trial court denied Postmates' petition, concluding that it was
"bound by Iskanian" because the United States Supreme Court did not
decide the "same question differently" in Epic Systems. And the
court concluded that there were no claims for individual relief to
be arbitrated because Santana sought only civil penalties in a
representative claim under the PAGA.
As in the trial court, Postmates argues on appeal that the U.S.
Supreme Court's decision in Epic Systems abrogated the holding in
Iskanian concerning the enforceability of PAGA waivers.
The Appellate Court disagrees. It explains that the high court did
not consider or decide the issue the State Supreme Court decided in
Iskanian that controls the outcome in the case -- i.e., whether the
FAA preempts a state law rule prohibiting waiver of a worker's
right to bring a representative action on behalf of the state.
There was no need in Epic Systems for the court to address
representative actions at all, and the court did not do so.
Rather, as the court explained, the question at issue in that case
was whether employees and employers should "be allowed to agree
that any disputes between them will be resolved through one-on-one
arbitration? Or should employees always be permitted to bring
their claims in class or collective actions, no matter what they
agreed with their employers?"
Answering that question did not require the court to decide whether
a worker may waive the right to bring a representative action on
behalf of a state government. Nor did it require the court to
address the fundamental ground of State Supreme Court's decision in
Iskanian. As discussed, the court in Iskanian held that a PAGA
action is not an individual dispute at all, but is an action
brought on behalf of the state by an aggrieved employee who is
designated by statute to be a proper representative to bring such
an action.
Thus, it is clear that the U.S. Supreme Court did not consider the
same issue concerning PAGA waivers as the State Supreme Court
decided in Iskanian, much less reach a contrary conclusion.
Whether the high court might someday do so is not the issue. Nor
is it our task to analyze the U.S. Supreme Court's reasoning and
language to predict how the court might rule if the issue is
ultimately presented to it.
The Appellate Court concludes that Epic Systems did not decide the
same issue concerning the enforceability of PAGA waivers that the
State Supreme Court decided in Iskanian. It, therefore, follows
Iskanian in affirming the trial court's order denying Postmates'
petition for arbitration. The trial court's order is affirmed.
Santana is entitled to her costs on appeal.
A full-text copy of the Court's Jan. 29, 2021 Opinion is available
at https://tinyurl.com/140d780d from Leagle.com.
Gibson, Dunn & Crutcher, Theane Evangelis --
tevangelis@gibsondunn.com -- Michele L. Maryott --
mmaryott@gibsondunn.com -- Bradley J. Hamburger --
bhamburger@gibsondunn.com -- and Dhananjay S. Manthripragada --
dmanthripragada@gibsondunn.com -- for Defendant and Appellant.
Parris Law Firm, R. Rex Parris, Kitty K. Szeto --
kszeto@parrislawyers.com -- John M. Bickford --
jbickford@parris.com -- Michelle J. Lopez -- mlopez@llac.org -- and
Alexander R. Wheeler -- awheeler@parrislawyers.com -- for Plaintiff
and Respondent.
ROBERTA PLACE: Faces Class Action Over Care Home's COVID Outbreak
-----------------------------------------------------------------
Nicole Thompson, writing for Canadian Press, reports that a Barrie
long-term care home devastated by an outbreak of a highly
contagious variant of COVID-19 is facing a proposed class-action
lawsuit from residents' families who allege their loved ones were
neglected by those charged with keeping them safe.
The unproven statement of claim filed to the Ontario Superior Court
of Justice alleges Roberta Place failed to take basic precautionary
measures to protect against the novel coronavirus 10 months after
the pandemic took hold in Canada.
"As a result of the defendants' failures to adequately and properly
plan, prepare and respond to the COVID-19 virus, the virus has run
rampant through the Roberta Place Long Term Care Home," the
statement of claim reads.
"They failed to rectify a pattern of mismanagement, misallocation
of resources and staffing, and repeated violations and cited
deficiencies of infection control and prevention requirements."
A COVID-19 outbreak was declared in the facility on Jan. 8, 2021,
and since then, more than 200 people have contracted the virus,
including all but one of the residents. More than 60 residents and
an essential caregiver have died.
Officials with the Simcoe Muskoka District Health Unit have
confirmed that at least some of the residents have a highly
transmissible variant of the virus that was originally discovered
in the U.K., and the region's top doctor says he believes everyone
infected at the long-term care home has that variant, but testing
is still underway.
The statement of claim alleges the facility failed to keep
residents with COVID-19 separate from those who didn't have the
virus.
The document also alleges the facility failed to cohort staff.
"(Roberta Place) failed to ensure adequate staffing levels . . . so
as to sufficiently designate each staff person to provide care for
either a cohort of infected residents or a cohort of uninfected
residents during the outbreak, but not both," it reads.
The home's community relations co-ordinator, Stephanie Barber, said
in an email they were aware of the lawsuit, but she did not address
its allegations.
"We acknowledge that the outbreak remains extremely difficult and
we have a tough road ahead, however, our commitment to our
residents, family members, team members and our community remains
steadfast," Barber wrote.
Barber said Roberta Place implores the community to "exercise every
precaution" against the U.K. variant due to its "aggressive
transmission and rapid symptoms and/or deterioration."
The statement of claim said Roberta Place did not enforce physical
distancing or proper use of personal protective equipment, claiming
the facility was "reckless, irresponsible, and neglectful of their
responsibilities to provide high quality and compassionate care to
the residents and staff of Roberta Place Long Term Care Home."
It alleges the facility failed to keep family members up to date on
the state of the outbreak.
"For those class members who survive the outbreak of COVID-19 at
the Roberta Place Long Term Care Home, they have endured harsh and
intolerable treatment. They were locked down in their rooms,
fearing for their safety and lives, knowing other residents were
dying around them and unable to visit with their loved ones and
family members," the document reads.
Roberta Place did not immediately respond to a request for
comment.
The suit, which has yet to be certified as a class action, is
seeking $50,000,000 in damages.
It's one of a number of proposed class actions that have sprung up
after COVID-19 ripped through long-term care homes across Canada.
One such suit is seeking $200 million from Extendicare, a nursing
home company that either owns or operates 71 long-term care
facilities in Ontario. One of its homes, Tendercare Living Centre
in east-end Toronto, has seen at least 81 residents die of COVID-19
-- one of the worst-hit long-term care facilities in Canada.
A second Extendicare-run facility, Orchard Villa in Pickering, has
had at least 70 deaths, according to the latest provincial data.
As of Feb. 1, the province said 3,614 of Ontario's 6,224 COVID-19
deaths were among long-term care residents. Eleven staff members
had also died.
The situation has prompted the provincial government to create the
Long-Term Care COVID-19 Commission, which is examining what,
exactly, went wrong in the system and how it can be prevented going
forward.
The commission, which is still hearing testimony, has so far
released two sets of interim recommendations. [GN]
ROBINHOOD FINANCIAL: Faces Class Suits Over Game Stop Trade Freeze
------------------------------------------------------------------
Adi Robertson, writing for The Verge, reports that stock trading
app Robinhood is facing dozens of lawsuits after the company
restricted several stocks popular on the r/WallStreetBets
subreddit. At least 30 parties across 10 states have sued the
company in federal court, many seeking class action status. They
allege that Robinhood users lost millions of dollars because they
were unable to buy or sell stock during the freeze, and that the
company chose to "manipulate the market" to help other financial
institutions.
Robinhood, which bills itself as a democratizing force in the stock
market, helped facilitate an unprecedented boom around a handful of
"meme stocks" last month. But on January 28th, it infuriated users
by freezing trades on several of these stocks. That included
GameStop ($GME) as well as AMC ($AMC), BlackBerry ($BB), Bed Bath &
Beyond ($BBBY), and Nokia ($NOK). The company defended the move in
a blog post, calling it a "risk-management decision" undertaken in
the face of "extraordinary circumstances." The company denied
reports that it had sold some users' shares without permission.
The answer didn't satisfy users. Robinhood user Brendon Nelson
filed the first lawsuit in New York state that day, accusing the
company of negligence and breaching its contract with traders. More
suits have followed, spread across courts in New Jersey,
California, Texas, Florida, and other states. Some plaintiffs
simply complain about missing a potential windfall, but others lay
out more specific damages: Patryk Krasowski of Illinois, for
instance, claims he lost $220,000 because Robinhood wouldn't let
him exercise GameStop purchase options.
"Robinhood has completely blocked retailer investors from
purchasing [GameStop stock] for no legitimate reason," reads
Nelson's complaint. It claims Robinhood "failed to provide adequate
explanation" about pulling a profitable stock from its platform and
"knowingly put their customers at a disadvantage compared to
customers who used other trading apps." Robinhood has lifted the
blanket freeze on GameStop and other stocks, but it's maintained
strict trading limits for users.
Nelson requested that courts force Robinhood to reinstate full
access to trading GameStop stock, in addition to paying financial
damages for any Robinhood users who were unable to execute GameStop
stock trades. Other parties made similar pleas, and several are
seeking class action status. Some suits also targeted other
institutions, including the financial services companies Citadel
Securities and Apex Clearing, which have worked with Robinhood to
execute trades.
The cases were filed only days ago, and they may not be heard until
the GameStop stock bubble has deflated. While a Washington judge
did certify a class action suit against Robinhood, that case dates
to 2019 and concerned the app's "refer a friend" program. As
MarketWatch notes, any lawsuit might also be stymied by Robinhood's
arbitration clause -- a section of the user agreement that demands
conflicts be settled out of court.
Disgruntled users aren't the only threat for Robinhood, however.
The company's decision drew bipartisan condemnation from lawmakers,
with Rep. Alexandria Ocasio-Cortez (D-NY) and others calling to
investigate the company's decision. And CEO Vlad Tenev is expected
to testify in a February 18th hearing before the House Financial
Services Committee. [GN]
ROBINHOOD FINANCIAL: Faces Suit Over Gamestop Trading Restrictions
------------------------------------------------------------------
Dan Trujillo, writing for abcactionnews.com, reports that a
class-action lawsuit has been filed in Florida against the trading
app Robinhood for preventing its members from trading GameStop
shares.
The suit, filed in the Middle District of Florida in Tampa by the
law firm Shumaker, seeks more than $5 million dollars in damages.
"Robinhood chose to deny its customers access to the marketplace
despite profiting off the customers who it lured in under the
promise of market participation," said Michael S. Taaffe, with the
law firm. "Robinhood's negligent failures are all the more serious
given the company's history of such breakdowns including last year
during the biggest single-day point gain in the history of the Dow
Jones Industrial Average."
Shares for GameStop closed at an all-time high on January 27, 2021.
But when the market opened the next day, Robinhood allegedly shut
down trading of the stock to its 10 million customers, citing
market volatility despite other competing broker-dealers continuing
to execute trade orders, Shumaker said.
At the time Robinhood shut down transactions, GameStop was trading
at about $445 per share. But during pre-market hours on January 28,
shares of GameStop began to drop precipitously, falling to as low
as $263 per share. When the market opened, GameStop rapidly rose
from $263 to a peak of $483 per share within a span of 30 minutes,
all while Robinhood customers were forced to watch from the
sidelines, the lawsuit alleges.
"The restrictions put in place by Robinhood fly in the face of the
principles the company promoted to its own customers through its
marketing materials and agreements," Taaffe added. "In short,
Robinhood breached its obligations and was negligent in allowing
this to happened -- all at the expense of its customers."
Robinhood customers damaged by the outage can learn more about the
class-action lawsuit by emailing Shumaker at
RobinhoodClassAction@Shumaker.com. [GN]
ROBINHOOD FINANCIAL: Faces Suits Over Gamestop Trading Restrictions
-------------------------------------------------------------------
Dan Clarendon, writing for Market Realist, reports that if you're
wondering how to join a Robinhood class action lawsuit, you aren't
alone. As Robinhood faces controversy over its GameStop stock
restrictions, various class action lawsuits are targeting the stock
trading platform. Some law firms are collecting information from
Robinhood users.
One such lawsuit was filed in the Southern District of New York on
Jan. 28 after Robinhood blocked users from buying GameStop shares
amid the recent trading frenzy, as CNBC reported. "Robinhood's
actions were done purposefully and knowingly to manipulate the
market for the benefit of people and financial institutions who
were not Robinhood's customers," the suit alleges.
Law firms are offering help in Robinhood class action suits.
Alexander Cabeceiras, the attorney representing the plaintiff in
the aforementioned suit, posted a tweet on Jan. 28 to urge anyone
interested in joining the lawsuit to email his law firm.
"Robinhood's mission is to ‘democratize finance for all.' They
have failed," Cabeceiras said in a statement to CNBC. "They have
purposefully failed this mission and failed their clients in an
attempt to -- what appears to be -- appease their investors and/or
potential investors."
In addition, the securities arbitration and class-action firm
ChapmanAlbin LLC said on Jan. 28 that it's investigating users'
reports of Robinhood losses. Its website encourages Robinhood users
who have "suffered losses" to contact the firm for potential help.
DoNotPay lets subscribers join the class action suit against
Robinhood.
DoNotPay offers "the world's first robot lawyer" to "fight
corporations, beat bureaucracy and sue anyone at the press of a
button." DoNotPay announced on Jan. 28 that subscribers can enroll
in the Robinhood class-action suit.
"After receiving hundreds of messages and tweets about this issue,
we have added the ability to join the @Robinhood class action to
@DoNotPayLaw," DoNotPay CEO Joshua Browder tweeted that day. "From
12PM today PT, you can enroll and support the cause via our class
actions product!"
Speaking to CNBC, Browder said, "Robinhood is not acting in the
consumer's best interest. A lot of users who sign up aren't the
most sophisticated investors. They feel betrayed by a platform that
has the literal name Robinhood."
Robinhood reserved the right to restrict trading.
Robinhood's user agreement does say that it "may at any time, in
its sole discretion and without prior notice to [the user],
prohibit or restrict [the user's] ability to trade securities."
And that clause seems like a "big stumbling block" to a breach of
contract claim, University of Michigan Law School professor Adam
Pritchard told Reuters.
"The contract says they can do it," Pritchard added.
For its part, Robinhood justified its restrictions in a statement
on Jan. 28. "As a brokerage firm, we have many financial
requirements, including SEC net capital obligations and
clearinghouse deposits," the company explained. "Some of these
requirements fluctuate based on volatility in the markets and can
be substantial in the current environment. These requirements exist
to protect investors and the markets, and we take our
responsibilities to comply with them seriously, including through
the measures we have taken today." [GN]
ROGERS WIRELESS: 80,000 People Have Yet to Claim Reimbursement
--------------------------------------------------------------
Teddy Elliot, writing for MTLBlog, reports that the people behind a
$26-million class-action lawsuit against Rogers Wireless
Communications are looking for "some 80,000 people" who haven't
claimed their reimbursement from the company.
The lawsuit concerned the "Early Termination Fee (ETF) of contracts
paid between February 2008 and June 2013, which were found to be
abusive," according to a February 1 press release.
The release says some "eight million dollars are sitting in the
bank" waiting for anyone who is eligible to claim their
compensation.
Depending on the type of service eligible individuals received from
Rogers between 2008 and 2013, they could be entitled to receive
compensation of $42.70, $102.86 or $327.91.
A "media campaign," including SMS messages to still-active phone
numbers, is now underway to contact those affected and "invite them
to claim their compensation."
No documents are required to receive compensation, but claimants
need to meet the following criteria:
-- "You entered into a wireless phone contract with Rogers Wireless
Communications between January 1, 2007, and June 30, 2010."
-- "You ended (terminated) the contract before the end of its
term."
-- "You paid the Early Termination Fee (between February 21, 2008,
and June 30, 2013)."
Members of the class can verify their eligibility at Monbras.ca.
[GN]
ROGERS WIRELESS: May 31 ETF Claims Submission Deadline Set
----------------------------------------------------------
Following a judgment by the Quebec Superior Court on December 5,
2014, Rogers Wireless Communications was ordered to reimburse its
former customers for the Early Termination Fee (ETF) of contracts
paid between February 2008 and June 2013, which were found to be
abusive.
Since the judgment, it was ordered that the population be informed
of the existence of a distribution plan aimed at paying the former
subscribers' compensation. To date, some 80,000 people still have
not claimed their reimbursement. As ordered, Rogers made the sums
required by the judgment available to the members of the class
action lawsuit. These sums are administered by Collectiva.
A media campaign was set to be launched on Feb. 1 to contact
members of the Group and invite them to claim their compensation.
In addition, some 20,000 secure SMS messages will be sent to mobile
phone numbers that are still active and already have been linked to
a Rogers account for which an ETF was paid before 2013.
Compensation amounts are of $42.70, $102.86 and $327.91, depending
on the type of service purchased, and will be paid securely by
Interac transfer (email) or by cheque (mail).
To receive compensation, no documents are required but you must
meet three (3) conditions:
1. You entered into a wireless phone contract with Rogers Wireless
Communications between January 1, 2007 and June 30, 2010.
2. You ended (terminated) the contract before the end of its term.
3. You paid the Early Termination Fee (between February 21, 2008
and June 30, 2013).
All persons concerned are invited to visit www.monbras.ca before
May 31, 2021 to verify their eligibility and, if applicable, choose
how they wish to receive their reimbursement.
All unclaimed compensation will be distributed to third parties, in
accordance with the law.
If you have any questions, members are encouraged to contact the
Collectiva Claims Administrator at info@collectiva.ca or the
Plaintiffs' attorneys at www.bga-law.com/frrogers. [GN]
ROYAL OAK: Lyons Sues Over Mislabeled Barbeque Charcoal Products
----------------------------------------------------------------
Jim Lyons, individually and on behalf of all others similarly
situated v. Royal Oak Enterprises, LLC, Case No. 7:21-cv-00524-NSR
(S.D.N.Y., Jan. 22, 2021) is a consumer class action on behalf of
the Plaintiff and other consumers seeking remedy for Defendant's
deceptive business practice in marketing, advertising and promotion
of barbeque charcoal products in violation of various New York
consumer protection laws as well as similar deceptive and unfair
trade practice laws in other states and the District of Columbia.
The complaint alleges that the Defendant falsely and misleadingly
makes the following representations: 1) product composition claim
by stating "100% All Natural Hardwood" 2) ecofriendly claim by
stating "cleaner burn" and 3) superior product claim by stating
"hotter, cleaner and starts faster." Unbeknownst to novices, people
who occasionally barbeque and even many aficionados, Defendant's
product contains numerous chemicals that have an adverse effect on
health. Furthermore, Defendant's product is not made with 100% wood
material as they portray it to be nor can the product be described
as "clean," or "cleaner," the suit says.
Royal Oak Enterprises, LLC produces charcoal products. The Company
offers products such as instant lighting, mesquite, and hardwood
charcoal briquets, as well as hardwood lumps and lighter
fluid.[BN]
The Plaintiff is represented by:
James Chung, Esq.
LAW OFFICE OF JAMES CHUNG
43-22 216th Street
Bayside, NY 11361
Telephone: (718) 461-8808
Facsimile: (929) 381-1019
E-mail: jchung_77@msn.com
- and -
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cutter Mill Road, Suite 409
Great Neck, NY 11021
Telephone: (516) 303-0552
Facsimile: (516) 234-7800
E-mail: spencer@spencersheehan.com
S-L SNACKS: 9th Circuit Upholds Consumer Class Action Dismissal
---------------------------------------------------------------
Maren J. Messing, Esq. -- mmessing@pbwt.com -- and Henry Wainhouse,
Esq. -- hwainhouse@pbwt.com -- of Patterson Belknap Webb & Tyler
LLP, in an article for Lexology, report that in a recent decision,
McGee v. S-L Snacks Nat'l, 982 F.3d 700 (9th Cir. Dec. 4, 2020),
the Ninth Circuit upheld a district court's dismissal of a putative
class action for lack of Article III standing. McGee is notable for
the court's willingness, at the motion-to-dismiss stage, to subject
a consumer's theories of injury to meaningful scrutiny, and for its
willingness to disregard conclusory and implausible allegations of
harm. It also serves as a helpful reminder that disclosures in a
product's ingredients list can be highly relevant in assessing the
plausibility of a consumer's claimed losses. (We have previously
discussed the import of ingredient lists in motions to dismiss
here, here, and here.) The Ninth Circuit's refreshingly rigorous
analysis of Article III standing in McGee may augur well for
defendants' motions to dismiss in future consumer-protection
litigation.
McGee's Claims and the District Court's Ruling
Plaintiff Jacquelyn McGee sued Diamond Foods, manufacturer of Pop
Secret popcorn, alleging that by eating Pop Secret she had consumed
more than half a pound of partially hydrogenated oil ("PHOs"), an
artificial trans fat, between 2008 and the filing of her 2014
complaint. Id. at 703-04. McGee alleged that PHOs cause cancer and
other adverse health effects, and cited a number of studies in her
complaint allegedly finding the same. She asserted claims for,
inter alia, unfair and unlawful business practices under California
Unfair Competition Law and breach of the implied warranty of
merchantability, arguing that there was "no safe level of PHO or
artificial trans fat intake" and that Diamond Foods had unfairly
elected not to use safer, commercially acceptable alternatives. Id.
at 703 (internal quotation marks omitted). Critically, the presence
of PHOs in the product was explicitly identified on the nutrition
label, and McGee did not allege that the labels were themselves
misleading. Instead, she alleged that Diamond's use of PHOs, per
se, gave rise to the alleged liability.
In the district court, Diamond argued that McGee's alleged physical
injury -- based on the "credible threat of harm" stemming from "her
increased risk of disease from consuming trans fat" -- was
insufficient to establish Article III standing, as was the economic
injury alleged from "pa[ying] for a product detrimental to her
health on her belief that the popcorn was safe." McGee v. Diamond
Foods, Inc., No. 14 Civ. 2446, 2016 WL 816003, at *3 (S.D. Cal.
Mar. 1, 2016). In dismissing the complaint without prejudice to
amend, the court found that McGee failed to allege a sufficient
physical or economic "injury-in-fact," where there were no facts or
reasonable inferences from McGee's allegations that the trans fat
popcorn substantially increased her risk of harm, and where she
alleged only that she purchased a product that was less healthy
than expected. Id. at *6-7. When McGee filed an amended complaint,
the district court dismissed again on substantially the same
grounds. McGee v. Diamond Foods, Inc., No. 14 Civ. 2446, 2017 WL
1135569, at *3 (S.D. Cal. Mar. 27, 2017).
The Ninth Circuit's Decision
In a published decision, the Ninth Circuit affirmed the district
court, rejecting each of McGee's potential theories as to Article
III standing.
First, McGee argued that she had standing under a "benefit of the
bargain" theory -- i.e., that she had failed to receive something
she was promised because she "believed she was purchasing a safe
product when [in fact] she was not." 982 F.3d at 704. The court
rejected this theory, reasoning that McGee was required to allege
that she did not receive a benefit for which she had actually
bargained, rather than a benefit that she merely desired to obtain.
Id. at 705-06. Because McGee failed to allege that Diamond had made
any representations about the safety of consuming Pop Secret, her
unilateral assumption that the popcorn contained only safe and
healthy ingredients did not become part of the basis of her bargain
with Diamond -- particularly where the product's labeling disclosed
the presence of PHOs. Id. at 706.
Next, the Court rejected McGee's "overpayment theory," i.e., her
assertion that she had suffered an economic injury because, due to
the presence of PHOs, she paid more for Pop Secret than it was
actually worth. McGee premised this claim on the allegation that
"Pop Secret is not fit for human consumption and [therefore] has a
value of $0." Id. at 704. Again, however, because she failed to
allege that Diamond had made any false representations or
actionable non-disclosures regarding PHOs, the court held that "a
key element of our overpayment cases -- a defendant's
misrepresentations about a product -- is absent here." Id. at 707.
The court declined to decide whether, in the absence of an express
misrepresentation, an overpayment theory of economic injury could
ever be viable. Id. For purposes of this case, it sufficed that
McGee could not allege that Pop Secret contained a hidden defect or
that it was worth objectively less than she paid for it, where (1)
the product's labeling disclosed the presence of artificial trans
fat and (2) the health risks associated with trans fat were already
firmly established at the time of her purchases. Id. at 707-08. (We
previously addressed the limits of manufacturers' liability for
alleged "overpayment" damages absent any express misrepresentations
here.)
Finally, the Court rejected McGee's theories of standing based on
present and/or future physical injury. While the complaint referred
to articles discussing the potential health effects of artificial
trans fat generally, it did not contain any allegations that McGee
had undergone medical testing or examination to confirm that she
presently suffered from any medical condition as a result of
consuming Pop Secret. Id. at 708. McGee's argument that consuming
half a pound of PHOs over several years invariably causes physical
injury was too speculative and not actually supported by the
studies cited in her complaint. Id. at 708-09. The court also
concluded that McGee failed to sufficiently allege future physical
injury because the studies she relied upon addressed health risks
associated with greater levels of artificial trans fat consumption
than McGee claimed she had consumed. Id. at 709-10.
Takeaways for Manufacturers
McGee confirms that, at least under some circumstances, nutrition
fact panels and ingredient disclosures provide information that can
be used to support a motion to dismiss and remain important tools
for defeating consumer class actions. In particular, where
allegedly harmful or undesirable ingredients are disclosed in an
ingredient list, and no contrary affirmative claims (e.g., that the
product is safe or healthy) appear elsewhere in the product's
labeling or advertising, plaintiffs are unlikely to be able to
successfully allege that the presence of the ingredient caused them
economic injury.
In addition, McGee sets an appropriately high bar for plaintiffs to
plausibly plead present or future physical injury due to the
consumption of a challenged ingredient: generalized or speculative
claims will not suffice. Moreover, even on a motion to dismiss,
courts can (and should) closely review any scientific articles that
plaintiffs cite in their complaint to verify whether those
publications actually support the plaintiff's allegations of harm,
rather than blindly accepting the plaintiff's characterization of
them. [GN]
SAMSUNG ELECTRONICS: Court Dismisses Clark NJCFA and MMWA Suit
--------------------------------------------------------------
In the case, JILL CLARK, on behalf of herself and others similarly
situated, Plaintiff v. SAMSUNG ELECTRONICS AMERICA, INC.,
Defendant, Case No. 2:20-cv-12969-WJM-MF (D.N.J.), Judge William J.
Martini of the U.S. District Court for the District of New Jersey
granted the Defendant's motion to dismiss the Second Amended
Complaint.
Plaintiff Clark originally brings the putative class action against
the Defendant in the U.S. District Court for the Central District
of California in a case currently captioned Baclija v. Samsung
Electronics America, Inc., Case No. 5:16-CV-01953-DMG-KK, as part
of a broader putative class action, and, pursuant to that court's
order, was subsequently transferred to the Court.
The Plaintiff alleges, among other things, that through marketing
campaigns related to certain of its cellular telephone products,
the Defendant violated both the New Jersey Consumer Fraud Act
("NJCFA") and the Magnuson-Moss Warranty Act ("MMWA"), and is
further liable for common law fraud and unjust enrichment.
The Defendant is a manufacturer of electronic products incorporated
under the laws of New York with a principal place of business in
New Jersey. Beginning in 2016, the Defendant began selling its
popular "Galaxy S7" series of cellphones. As part of its marketing
efforts to promote sales of the Galaxy S7, the Defendant engaged in
a national advertising campaign highlighting the Galaxy S7's
features, including its ability to resist water damage in up to
five feet of water for up to 30 minutes. The Defendant's website
also prominently featured the Galaxy S7 and stated that the phones
were water-resistant.
On Dec. 27, 2017, after seeing advertisements and promotional
materials describing its water resistance, the Plaintiff purchased
a Galaxy S7 from a third-party electronics retailer. She alleges
that she would not have purchased a Galaxy S7 but-for the phone's
water-resistant features and the Defendant's representations with
respect thereto. Upon purchasing her Galaxy S7, the Plaintiff
alleges the phone was not as water resistant as Defendant
advertised, and that it would begin "acting strange" whenever it
was exposed to water. She contacted the Defendant by phone and
complained about these issues but alleges that the Defendant did
not address her concerns, did not follow up on her complaints, and
refused to provide in-warranty repairs or offer replacement
devices.
The Plaintiff further alleges that the structural design of the
Galaxy S7 itself suggests that, despite its advertisements to the
contrary, the Defendant knowingly manufactured the Galaxy S7 to not
be water-resistant.
On Sept. 9, 2016, the putative class action was commenced by the
filing of a complaint in the Central District of California. The
Complaint, and the subsequently filed First Amended Complaint,
sought to pursue claims on behalf of both a nationwide class and
California subclass of individuals who purchased Galaxy S7 devices.
However, after several motions to dismiss and to compel
arbitration, the Defendant consented to the filing of the Second
Amended Complaint pursuant to a stipulation with the then-named
plaintiffs Dulce Alondra Velasquez-Reyes and Ken Shalley, which was
approved and entered by the California District Court on May 18,
2020. The Stipulation provided, among other things, for the filing
of the Second Amended Complaint on the conditions that the
Plaintiffs remove their nationwide class allegations and would not
seek leave to further amend the Complaint.
Following entry of the Stipulation, the Plaintiffs filed the SAC.
The SAC removed the nationwide class allegations, removed Ken
Shalley as a named Plaintiff, and added two new named Plaintiffs,
Martin Baclija and the Plaintiff in the action, Jill Clark. Along
with the addition of Clark as a named Plaintiff, the SAC sought to
pursue claims on behalf of two putative classes: (1) a class
comprised of individuals who purchased Galaxy S7 devices in
California; and (2) a class comprised of individuals who purchased
Galaxy S7 devices in New Jersey.
Following the Defendant's motion to dismiss the SAC, and the
Plaintiff's unopposed cross motion to transfer venue, the claims of
the putative New Jersey class, led by the Plaintiff as named
representative, were severed from the California action and
transferred to the Court.
Before the Court now is the Defendant's motion to dismiss the SAC
on two separate grounds: (1) the Court lacks subject matter
jurisdiction to hear the claims; and (2) the Plaintiffs have failed
to sufficiently state a claim upon which relief can be granted.
Though stylized as both a facial and factual challenge to the
Court's jurisdiction, Judge Martini finds that the Defendant has
raised a purely facial challenge to CAFA jurisdiction. Rather than
raise any particular factual disputes, the Defendant's arguments
rest almost entirely on the sufficiency of the Plaintiff's
allegations in the SAC. Moreover, the Defendant has not filed any
answer to the SAC or controverted any of the factual allegations
therein. Accordingly, the Judge concludes the Defendant's
challenge must be reviewed as a facial attack.
In a facial attack on the subject matter jurisdiction, the Court
must only consider the allegations in the SAC and any documents
referenced therein or attached thereto. Accordingly, Judge Martini
considers whether the SAC plausibly alleges each of the three
necessary elements for jurisdiction under CAFA--numerosity, minimal
diversity, and amount-in-controversy requirement.
As to numerosity, CAFA only confers jurisdiction over class actions
in which there are at least 100 class members. The SAC alleges
that the Classes consist of thousands of consumers who purchased
Galaxy S7 phones. Though not explicit, a reasonable inference from
the allegation is that there are at least 100 members of the
putative New Jersey class.
In addition to the 100-class member numerosity requirement, CAFA
requires that at least one such class member be diverse from the
defendant. The Defendant argues that the SAC fails to sufficiently
allege minimal diversity because it does not identify or
specifically allege the existence of any diverse party. The
Plaintiff responds by (1) pointing to her definition of the
proposed New Jersey class as those who "purchased Galaxy S7 phones
in," rather than those who are "citizens of," New Jersey; and (2)
asking the Court to "infer" from this definition and U.S. census
data that at least one person purchased a phone in New Jersey but,
by the time the SAC was filed, was a citizen of another state.
Judge Martini agrees with the Defendant and finds that the
Plaintiff has not adequately alleged minimal diversity. The
"inferences" the Plaintiff asks the Court to draw are not logical
inferences derived from well-pleaded factual allegations in the SAC
but are rather assumptions and speculations needed to fill the gaps
therein. However likely it is that a member of the putative New
Jersey class was a citizen of another state at the time the SAC was
filed, such an allegation is simply not in the SAC and the Judge
will not premise his own jurisdiction on such assumptions. That is
not to say that the Plaintiff was required to trace the citizenship
of every putative class member and specifically identify one
diverse party. But the Plaintiff was required to plead the
existence of one such diverse class member. That the Plaintiff
failed to do.
With respect to the amount-in-controversy requirement, Judge
Martini opines that the SAC is devoid of any specific allegations
that would entitle the putative New Jersey class to the requisite
$5 million in damages. At no point in the SAC does the Plaintiff
attempt to quantify either her own damages or those of any putative
class members by, for example, pleading the purchase price of
Galaxy S7 devices, repair costs for water damage, or market prices
for non-water-resistant phones. Even crediting the Plaintiff's
assertion that the combined claims of "class members" exceeds the
$5 million threshold, the Judge is left with no basis to conclude
or infer that the combined claims of members of the putative New
Jersey class alone exceed that amount. Accordingly, he concludes
that the Plaintiff has not sufficiently alleged a plausible basis
for invoking the Court's jurisdiction under CAFA.
Because he has determined that Plaintiff has not alleged facts
sufficient to invoke the Court's jurisdiction under CAFA such that
dismissal is warranted under FRCP 12(b)(1), Judge Martini does not
address whether dismissal of any of the claims in the SAC is also
warranted for failure to state a claim upon which relief can be
granted under FRCP 12(b)(6).
Perhaps the most significant issue in the case is whether the
Plaintiff ought to be allowed to seek further amendment of the SAC
to correct the jurisdictional deficiencies identified. The
Defendant argues that the Stipulation should bind the Plaintiff
because it was necessary to secure the consent of the Defendant to
allow the Plaintiff, and thus the New Jersey purchaser class
allegations, to be added to the litigation in the first place. The
Plaintiff responds that she was not a party to the litigation at
the time the Stipulation was entered into, did not sign the
Stipulation, and that the order entered by the California District
Court approving the Stipulation does not bind or otherwise limit
the "broad inherent powers" of the Court to control its own docket
and permit amendment of the SAC.
Judge Martini again agrees with the Defendant. He says although
the Plaintiff herself was not a signatory to the Stipulation, she
was a clear, intended beneficiary thereof and should be bound
thereby. Having determined that the Plaintiff is bound by the
terms of the Stipulation, the Judge must next decide whether to set
aside the terms of the Stipulation to permit the Plaintiff to seek
leave to amend the SAC. He holds that the Plaintiff has not shown
that enforcing the Stipulation's prohibition against further
amendments to the SAC would result in "manifest injustice" such
that she should be free from its terms.
Allowing yet another amendment of the Complaint at this stage of
the litigation would be essentially punishing Defendant for
consenting to the filing of the SAC in the first place. Nor does
the subsequent severance and transfer of the New Jersey class
claims to this Court warrant a different result. Accordingly, the
Judge denies the Plaintiff's request for leave to amend the SAC,
and concludes that dismissal without prejudice is warranted.
For the reasons he set forth, Judge Martini granted the Defendant's
Motion. An appropriate order follows.
A full-text copy of the Court's Jan. 29, 2021 Opinion is available
at https://tinyurl.com/2h8ooudt from Leagle.com.
SKY CHEFS: Court Narrows Claims in Reyes Suit Over Unpaid Wages
---------------------------------------------------------------
In the case, VALENTINA REYES, on behalf of herself and all
"aggrieved employees" pursuant to Labor Code Section 2698 et seq.,
Plaintiff v. SKY CHEFS, INC., Defendant, Case No. 20-cv-08590-LB
(N.D. Cal.), Magistrate Judge Laure Beeler of the U.S. District
Court for the Northern District of California, San Francisco
Division, granted in part and denied in part Sky Chefs' Motion to
Dismiss the First Amended Complaint.
Named Plaintiff Reyes worked for Sky Chefs, an airline catering
company, at its Oakland, California facility from August 2018 to
November 2018. On March 25, 2019, before she filed the lawsuit,
her counsel sent a California's Private Attorneys General Act
("PAGA") notice to the Labor and Workforce Development Agency
("LWDA") alleging Sky Chef's failure to pay premium wages to
employees who "routinely" were unable to take the meal- and rest
breaks and also asserting derivative claims for penalties
associated with wage statements and waiting times premised on the
meal- and rest-break claims.
The Plaintiff and on behalf of herself and a putative class sued
Sky Chefs for wage-and-hours violations under the California Labor
Code. In its July 30, 2019 answer, Sky Chef asserted the defense
that the Plaintiff had not exhausted her administrative remedies
under PAGA. The parties mediated their case unsuccessfully in
August 2020.
The Plaintiff then filed the operative complaint, the FAC. In it,
the Plaintiff alleges Sky Chefs' failure to pay minimum and
overtime wages resulting from missed meal-and-rest breaks (claim
one), standalone claims for the missed meal-and-rest breaks (claims
two and three), and the following derivative claims: failure to
provide accurate wage-and-hour statements (claim four), failure to
pay final wages on time (claim five), and unfair business practices
under California's Unfair Competition Law ("UCL") (claim six). The
FAC also has a claim for penalties under PAGA that is predicated on
the class claims (claim seven). Her initial complaint (filed
roughly 18 months before the FAC) had only a PAGA claim predicated
on the missed meal-and-rest breaks and the derivative
wage-statements and final-wages claims.
The Plaintiff alleged that she and other putative class members
would be required by the Defendant to clock out for their meal
periods and continue working, or their meal periods would be
interrupted, requiring them to perform work duties while they were
on their meal period, all without any compensation of at least the
minimum wage and for all overtime wages earned. She also alleged
that Sky Chefs' failure to provide accurate itemized wage
statements was knowing and intentional and caused injury to her and
the putative class members.
On Dec. 4, 2020, Sky Chefs timely removed the case to federal
court, asserting diversity jurisdiction under the Class Action
Fairness Act, and federal-question jurisdiction under the federal
Railway Labor Act ("RLA"). It then moved to dismiss the FAC. Sky
Chefs moved to dismiss (and alternatively to strike) (1) the PAGA
claim on the ground that the Plaintiff's PAGA notice to the LWDA
was defective because it had no facts, (2) the wage-statement
penalties claim because it is barred by the one-year statute of
limitations and does not relate back under Federal Rule of Civil
Procedure 15(c)(1) to the initial PAGA claim, and (3) the claim for
unpaid minimum and overtime wages to limit the class period to four
years before the filing date of the FAC (as opposed to four years
before the original complaint), again on the ground that the claim
does not relate back to the original PAGA claim for unpaid
meal-and-rest breaks.
Magistrate Judge Beeler held a hearing on Jan. 21, 2021. All
parties consented to magistrate-judge jurisdiction.
First, she denies the motion to dismiss the PAGA claim because the
notice provided sufficient detail. In the PAGA notice, the
Plaintiff alleged that she and aggrieved employees routinely could
not take their meal-and-rest breaks. That fact context is
different than the security guards in Brown v. Ralphs Grocery Co.,
where the plaintiff alleged only that they did not take all
meal-and-rest periods. Providing specifics about job duties
changes the analysis.
Moreover, the claims in the FAC, which Sky Chefs did not move to
dismiss, similarly plead that the aggrieved employees routinely
could not take breaks, adding only the reason that they were too
busy. That additional context--while helpful--is plausibly
inferred from the nature of their work in any event and plausibly
pleads claims under Rule 12(b)(6). Plausibly pleading a claim
under Rule 12(b)(6) satisfies "requirements of nonfrivolousness
generally applicable to any civil filing" under California law and
thus means that the PAGA notice is sufficient.
Magistrate Judge Beeler also denies the motion to dismiss the
penalties claim because it relates back to the PAGA claim under
Rule 15(c)(1). The parties do not dispute that unless the addition
of the Section 226(e) penalties relates back under Federal Rule of
Civil Procedure 15(c)(1) to the initial complaint's PAGA charge of
a violation of Section 226(a), it is barred by the applicable
one-year statute of limitations. The effect of the amendment is to
expand the scope of relief, which--in the class context--is
analogous to adding plaintiffs, thereby expanding the class and the
recovery.
The factors--notice, identity of interests, and prejudice to the
Defendant--weigh in favor of the proposed amendment, Magistrate
Judge Beeler holds. First, there is fair notice under Rule 15(c).
Second, there is identity of interests: the PAGA and the class
claims are predicated on the same Section 226(a) violation, the
focus of the litigation did not change, and generally, the evidence
is the same. Third, the identity of interests means that relation
back of the amendment is not prejudicial. Also, there is no
prejudicial delay: the case schedule will give adequate time for
discovery.
Finally, Magistrate Judge Beeler limits the class period for the
unpaid-wages claim to four years before the filing of the FAC
because the claim does not relate back under Rule 15(c)(1). It is
undisputed that--unlike the meal-and-rest-break claims--the PAGA
claim did not include the claims as predicate Labor Code
violations. At the hearing, the Plaintiff conceded (more or less)
that she could live with limiting the class period to four years
before the filing of the FAC. On this briefing, the Magistrate
grants the motion to dismiss on the ground that the claims do not
relate back under Rule 15(c)(1), which limits the class period to
four years before the filing of the FAC.
In light of the foregoing, Magistrate Judge Beeler granted the
motion to dismiss in part: she limited the minimum-wage and
overtime claims to the four-year period that precedes the filing of
the FAC. She deferred consideration of the motion to dismiss the
derivative claims for wage-statement and waiting-time penalties
pending the California Supreme Court's decision in Naranjo v. Bank
of Am. Nat'l Ass'n, No. 14-cv-02748-LHK, 2015 WL 913031, at *9
(N.D. Cal. Feb. 27, 2015). Magistrate Judge Beeler otherwise
denied the motion. The Order disposes of ECF No. 11.
A full-text copy of the Court's Jan. 29, 2021 Order is available at
https://tinyurl.com/xq2rz5ju from Leagle.com.
SUBWAY: Faces Class Action in California Over Tub Subs, Wraps
-------------------------------------------------------------
Kristin Salaky, writing for Delish, reports that a few days after a
lawsuit accusing Subway of serving tuna subs and wraps that don't
actually contain tuna, the chain appears to be hitting back in an
unconventional way: a discount code.
When you visit Subway's website right now, a deal pops up
encouraging you to order a sub, touting that its fish is "100% real
wild-caught tuna, 100% delicious." Below, they share that you can
get 15 percent off a footlong tuna sub by ordering on the app or
online with a promo code. Though the chain does not explicitly
mention the lawsuit in the pop-up, the promo code is "ITSREAL." In
a previous statement to Delish, Subway called the lawsuit
"meritless."
Original, January 28, 2021: A new lawsuit against Subway accuses
the chain of serving tuna subs and wraps to customers that don't
actually contain tuna, according to The Washington Post.
The lawsuit, which was filed in the U.S. District Court for the
Northern District of California, alleges that after "multiple
samples" of the tuna subs from shops in the state they found that
it was "a mixture of various concoctions that do not constitute
tuna, yet have been blended together by defendants to imitate the
appearance of tuna," according to the paper. They went so far as to
say the tuna salad mixture sold on subs and wraps is "made from
anything but tuna." Subway denied these allegations in a statement
to the paper.
When contacted, a Subway spokesperson provided the following to
Delish: "These claims are meritless. Tuna is one of our most
popular sandwiches. Our restaurants receive 100 percent wild-caught
tuna, mix it with mayonnaise and serve on a freshly made sandwich
to our guests."
Shalini Dogra, one of the attorneys for the plaintiffs involved in
the case, would not tell the paper what the tests purportedly
showed, simply saying "the ingredients were not tuna and not
fish."
Karen Dhanowa and Nilima Amin, the plaintiffs in the case, said
they feel they "were tricked into buying food items that wholly
lacked the ingredients they reasonably thought they were
purchasing," according to the lawsuit. They are aiming to get the
case certified as a class-action lawsuit. This could possibly make
the lawsuit open to anyone who bought a tuna product at Subway
after January 21, 2017. [GN]
THRIVE CAUSEMETICS: Slade Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Thrive Causemetics,
Inc. The case is styled as Linda Slade, individually and as the
representative of a class of similarly situated persons v. Thrive
Causemetics, Inc., Case No. 1:21-cv-01038 (S.D.N.Y., Feb. 5,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Thrive Causemetics -- https://thrivecausemetics.com/ -- offers
luxury high-performance cosmetics.[BN]
The Plaintiff is represented by:
Dan Shaked, Esq.
SHAKED LAW GROUP, P.C.
14 Harwood Court, Suite 415
Scarsdale, NY 10583
Phone: (917) 373-9128
Email: shakedlawgroup@gmail.com
UNIVERSITY OF PENNSYLVANIA: Settles Class Action for $13 Million
----------------------------------------------------------------
Saskia Wright, writing for The Daily Pennsylvanian, reports that
Penn will pay $13 million to settle a long-running class action
suit that accused the University of mismanaging its employee
retirement plans, becoming the eighth university to settle related
claims.
The complaint, Jennifer Sweda, et al. v. The University of
Pennsylvania, et al., was originally filed against the University
and Vice President of Human Resources Jack Heuer in 2016 by law
firm Schlichter Bogard & Denton in United States District Court for
the Eastern District of Pennsylvania and dismissed in September
2017. Plaintiffs alleged that Penn was charging excessive fees from
the 20,000 employees covered by its 403(b) retirement plan and
forcing them into high-priced and poorly performing investments --
thereby breaching their duties under the Employee Retirement Income
Security Act.
In May 2019, however, the U.S. Court of Appeals for the Third
Circuit revived the employees' proposed class action on appeal, and
a subsequent motion by defendants for a full court reconsideration
of the ruling was rejected, along with Penn's petition to the U.S.
Supreme Court for a case review.
While Penn did not admit to any wrongdoings or liability with
respect to any of the lawsuit allegations, the University will make
the payment to resolve the case and bar any further related claims.
The settlement, made in December, stipulates that up to one-third
of this amount may be used as plaintiffs' attorneys fees.
ERISA is a federal law that protects a retirement plan's assets by
"requiring that those persons or entities who exercise
discretionary control or authority over plan management be subject
to fiduciary responsibilities." Fiduciary responsibilities refer to
the obligation retirement plan managers have to run the plan with
the exclusive purpose of providing benefits to plan participants
and being able to pay expenses.
Legal Studies & Business Ethics and Management professor Janice
Bellace said that the fiduciary and ERISA requirements are a
"complex area of law subject to copious regulations," and that Penn
has a legal obligation to act in the best interests of its
retirement plan's participants.
The settlement terms reached by Penn and Schlichter Bogard & Denton
include a three-year monitoring period where the law firm will
monitor the University's compliance to the agreed-upon terms. These
include a new investment menu, as well as a requirement that the
University impose certain regulations to lower the retirement
plan's fees.
Schichter Bogard & Denton has sued roughly 20 other leading
American universities over the same issue and reached similar
settlements with eight others. Massachusetts Institute of
Technology agreed to pay the largest settlement to date at $18
million.
"This settlement includes both financial compensation and valuable
non-monetary improvements to Penn's retirement plan going forward.
We are confident that these critical changes will better enable
Penn employees and retirees to build their retirement assets for
the future," Schlichter Bogard & Denton founding and managing
partner Jerry Schlichter told the Associated Press.
According to Bellace, many universities, including Penn, were
overpaying the retirement plan's recordkeepers, the firms who track
each person's assets. This led the University to charge the plan's
participants excessive fees that otherwise would have been
reinvested.
Penn's retirement plan originally had two recordkeepers, Vanguard
and TIAA-CREF, but the settlement now requires the University
maintain a single recordkeeper to ensure that fees decline.
Bellace said that Penn's retirement plan now offers a reduced
number of investment options as a result of the settlement, as the
original complaint was also motivated by the fact that the
retirement plan offered an excessive array of investment options.
Employees experienced in investment matters now have the option of
opening a brokerage account which will permit them to make choices
that are not on the streamlined menu.
"My view is that these are sensible changes that will benefit most
people and make no difference to some depending on how they are
currently invested," Bellace said, adding that research has shown
that people become overwhelmed by a large number of alternatives,
leading them to make "suboptimal choices."
Heuer explained that the Fiduciary Committee of Penn Faculty and
Staff had been looking to make changes to the retirement plan
before the settlement had been reached.
"These changes are not dependent on the settlement and will be made
regardless of [it]," Heuer said, adding that the committee has made
efforts to streamline the plan's investment menu over the years.
Once implemented, Heuer agreed that the proposed changes will be
beneficial to the plan's participants.
"We believe the changes will benefit participants by ensuring that
they continue to have an investment menu that allows them to build
a well-diversified investment portfolio, while further reducing the
fees associated with the plan's investments and administration, and
enhancing participants' interaction the plan," Heuer said. [GN]
VALENTINE & KEBARTAS: Pistone Files FDCPA Suit in New Jersey
------------------------------------------------------------
A class action lawsuit has been filed against VALENTINE & KEBARTAS,
LLC. The case is styled as RENEE PISTONE, on behalf of herself and
all others similarly situated v. VALENTINE & KEBARTAS, LLC, Case
No. 3:21-cv-01044-PGS-DEA (D.N.J., Jan. 22, 2021).
The case is brought over alleged violations of the Fair Debt
Collection Practices Act and is assigned to Judge Peter G.
Sheridan.
Valentine & Kebartas, LLC provides collection services to public
and private sector clients.[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
VELOCITY FINANCIAL: Calif. Court Tosses Securities Class Action
---------------------------------------------------------------
Gibson Dunn on Feb. 1 disclosed that a California federal court
issued the first decision in the country in a securities class
action arising out of the COVID-19 pandemic, dismissing the case on
the ground that the issuer could not have anticipated the extent of
the pandemic in early January 2020. The decision, Berg v. Velocity
Financial, Inc.,[1] offers some hope for issuers that their public
statements made before or in the early days of the pandemic will be
protected from suit to the extent they failed to predict the
COVID-19 crisis and its impact on the issuer's business.
COVID-19 Securities Lawsuits
The COVID-19 pandemic and resulting "Coronavirus Crash" brought on
a surge of event-driven securities lawsuits. The initial wave of
pandemic-related securities lawsuits began in the Spring of 2020
and targeted primarily businesses in the travel and healthcare
industries that were directly impacted by the ongoing public health
crisis.[2] Several of these lawsuits centered on allegations that
the issuer-defendants had downplayed the impact of COVID-19 on
their business and/or concealed incidences of COVID-19 outbreaks at
their places of business.
Despite a relatively steady stock market recovery through the
Summer and Fall of 2020, pandemic-related securities lawsuits
continued to be filed,[3] targeting defendants in a wider range of
industries that were less directly impacted by COVID-19, including
the software,[4] financial services,[5] and energy industries.[6]
These cases alleged that companies failed to disclose the impact of
COVID-19 on their financial performance and misstated their ability
to weather the storm. Pandemic-related securities lawsuits have now
become so numerous that the U.S. Chamber Institute for Legal Reform
and the Chamber's Center for Capital Markets Competitiveness filed
a petition with the U.S. Securities and Exchange Commission urging
the SEC to "act without delay to place reasonable limits on
securities litigation arising out of the COVID-19 pandemic."[7]
Berg v. Velocity Financial, Inc.
Berg involves claims against Velocity Financial, Inc. ("Velocity"),
a real estate finance company specializing in lending for small
commercial and residential properties. After Velocity went public
in January 2020, its shares rapidly declined in value. The
plaintiff filed a putative securities class action in July 2020,
accusing Velocity of misrepresenting or failing to disclose
material facts in its offering materials concerning: (i) the
company's "disciplined" underwriting process; (ii) the growth of
non-performing and short-term, interest-only loans in its
investment portfolio; (iii) a "substantial and durable" market for
real estate investors; and (iv) risks facing its business,
including those relating to the pandemic.
On January 25, 2021, the Court granted Velocity's motion to
dismiss, finding that the allegations of fraud were based on
information that was either not available at the time of Velocity's
initial public offering or contradicted by Velocity's offering
materials. Regarding COVID-19, specifically, the Court grounded its
decision on the fact that Velocity could not have anticipated the
extent of the pandemic in early January 2020. Even so, the Court
noted that Velocity's offering materials had cautioned investors
that Velocity's business might be affected by "changes in national,
regional or local economic conditions or specific industry
segments," including those caused by "acts of God," which
disclosure the Court found covered the pandemic. Similarly, the
Court found that Velocity could not have anticipated that the rate
of its nonperforming loans would increase to the extent that it did
and, more specifically, that the extent of the increase due to the
pandemic was not foreseeable when the company filed its offering
materials in January 2020.
Conclusion
The COVID-19 crisis continues to cause disruptions and uncertainty
in the economy, and companies can be certain that plaintiffs'
lawyers will continue to monitor securities filings and stock price
performance for potential claims—groundless or otherwise.
Companies can take some comfort that courts, starting with the Berg
decision and possibly more to follow, will take a sensible and
pragmatic approach in recognizing the unprecedented nature of the
COVID-19 pandemic and dismissing cases premised on a failure
early-on to anticipate the extent of the crisis. The Berg decision
further shows that seemingly generic risk disclosures that did not
call out COVID-19 risks in particular were sufficient in the early
days of the COVID-19 pandemic. And public companies will no doubt
hope that the decision provides a roadmap for other courts to
dismiss similar securities complaints premised on a failure to
predict the extent or commercial impact of the COVID-19 crisis.
[1] No. 20 Civ. 6780, 2021 WL 268250 (C.D. Cal. Jan. 25, 2021).
[2] See, e.g., Douglas v. Norwegian Cruise Lines, 20-cv-21107
(S.D. Fla. Mar. 12, 2020); Service Lamp Corp. Profit Sharing Plan
v. Carnival Corp., 20-cv-22202 (S.D. Fla. May 27, 2020); McDermid
v. Inovio Pharm. Inc., 20-1402 (E.D. Pa. Mar. 12, 2020); Yannes v.
SCWorx Corp., 20-cv-03349 (S.D.N.Y. Apr. 29, 2020).
[3] See, e.g., Tang v. Eastman Kodak Company, No. 20-cv-10462
(D.N.J. Aug. 13, 2020); City of Riviera Beach Gen. Emps. Ret. Sys.
v. Royal Caribbean Cruises LTD, No. 20-cv-24111 (S.D. Fla. Oct. 7,
2020).
[4] See Arbitrage Fund v. ForescoutTechs., No. 20-cv-03819 (N.D.
Cal. June 10, 2020).
[5] See SEC v. Wallach, No. 20-cv-06756 (N.D. Cal. Sept. 29,
2020).
[6] See Hessel v. Portland Gen. Elec. Co., No. 20-cv-01523 (D.
Or. Sept. 3, 2020).
[7] Tom Quaadman & Harold Kim, Petition for Rulemaking on
COVID-19 Related Litigation, (Oct. 30, 2020),
https://instituteforlegalreform.com/petition-for-rulemaking-on-covid-19-related-litigation/.
[GN]
WALGREENS BOOTS: March 23 Class Action Opt-Out Deadline Set
-----------------------------------------------------------
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
Civ. Action No. 1:18-cv-02118-JEJ-KM
DOUGLAS S. CHABOT, et al., Individually
and on Behalf of All Others Similarly Situated,
Plaintiffs,
vs.
WALGREENS BOOTS ALLIANCE, INC., et al.,
Defendants.
Civ. Action No. 1:18-cv-02118-JEJ-KM
SUMMARY NOTICE OF PENDENCY OF C
CLASS ACTION
TO: ALL PERSONS OR ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED
RITE AID CORPORATION ("RITE AID") COMMON STOCK BETWEEN OCTOBER 20,
2016, AND JUNE 28, 2017, INCLUSIVE (THE "CLASS PERIOD"), AND WERE
DAMAGED THEREBY.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure, that the above-captioned securities class
action lawsuit (the "Litigation") is currently pending before the
Honorable Chief Judge John E. Jones III, United States District
Court for the Middle District of Pennsylvania.
The Court certified as a "Class" all persons or entities that
purchased or otherwise acquired Rite Aid common stock between
October 20, 2016, and June 28, 2017, inclusive, and were damaged
thereby. Excluded from the Class are: (i) defendant Walgreens Boots
Alliance, Inc. ("Walgreens") and any of its subsidiaries, parents,
and affiliates; (ii) defendants Stefano Pessina and George R.
Fairweather and any members of their immediate families, any
entities in which they have a controlling interest, and their legal
representatives, heirs, successors, or assigns; and (iii) the
officers and directors of Rite Aid during the Class Period and any
members of their immediate families, any entities in which they
have a controlling interest, and their legal representatives,
heirs, successors, or assigns.
The Court has directed that notice of the Court's certification of
the Litigation as a class action on behalf of the Class be provided
to such persons and entities. The Court has not yet decided in
favor of Lead Plaintiffs or Defendants. Defendants have not been
ordered to pay any money. No settlement has been reached. The
Litigation is proceeding. There is no money available now and no
guarantee that there will be in the future.
If you purchased or otherwise acquired Rite Aid common stock during
the Class Period, you may be a "Class Member" and your rights may
be affected by this Litigation. If you have not received a copy of
the detailed "Notice of Pendency of Class Action" (the "Notice"),
you may obtain a copy by contacting the Notice Administrator at:
Chabot v. Walgreens, c/o A.B. Data, Ltd., P.O. Box 170500,
Milwaukee, WI 53217, or by calling 877-884-0281, or by downloading
a copy at www.RiteAidSecuritiesClassAction.com. If you are a Class
Member and did not receive the Notice by mail, please send your
name and address to the Notice Administrator so that if any future
notices are disseminated in connection with the Litigation, you
will receive them.
Inquiries, other than requests for the Notice, may be made to
Court-appointed Class Counsel:
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
www.rgrdlaw.com
1-800-449-4900
If you are a Class Member, you have the right to decide whether to
remain a member of the Class. If you want to remain a member of the
Class, you do not need to do anything at this time other than
retain your documentation reflecting your transactions in Rite Aid
common stock during the Class Period. You will automatically be
included in the Class, and you will be bound by the proceedings in
this Litigation, including all past, present, and future orders and
judgments of the Court, whether favorable or unfavorable.
If you are a Class Member and do not wish to remain a member of the
Class, you must take steps to exclude yourself from the Class. To
exclude yourself from the Class, you must submit a written request
for exclusion to the Notice Administrator postmarked no later than
March 23, 2021, in accordance with the instructions set forth in
the mailed Notice. If you choose to exclude yourself, you will not
as part of this Litigation get money or benefits recovered, if any
are awarded, at a later date.
This Notice is only a summary. For more information visit
www.RiteAidSecuritiesClassAction.com, or call 877-884-0281.
PLEASE DO NOT CONTACT THE COURT OR THE
CLERK'S OFFICE REGARDING THIS NOTICE.
DATED:
February 1, 2021
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA [GN]
[*] Jackson Lewis Attorneys Discuss Significant Class Actions
-------------------------------------------------------------
Mia Farber, Esq. -- Mia.Farber@jacksonlewis.com -- David R. Golder,
Esq. -- David.Golder@jacksonlewis.com -- and Eric R. Magnus, Esq.
-- Eric.Magnus@jacksonlewis.com -- of Jackson Lewis P.C, in an
article for The National Law Review, take a look at the most
significant cases and stories in class and collective litigation
last year, and the anticipated impact of these developments in
2021:
1. Pandemic-related class actions lie in wait
The COVID-19 pandemic was the most significant challenge employers
had to reckon with in 2020, and COVID-19-related litigation
continues to evolve alongside the ever-changing workplace. Although
companies faced an onslaught of employment claims related to the
pandemic and its operational and financial impact, relatively few
of these were class filings.
According to the Jackson Lewis COVID-19 Employment LitWatch, there
were more than 1,300 COVID-19 related employment complaints filed
in federal and state courts in 2020; only 67 of those complaints
were class or collective actions. However, multi-plaintiff lawsuits
are expected to pick up steam in 2021, as the nation continues to
contend with the most recent surge and the pandemic's ongoing
economic fallout.
In particular, expect an uptick in wage and hour class and
collective actions arising in part from the dramatic spike in
telework in 2020. By year's end, the number of employees working
remotely was nearly double that of onsite workers, and that trend
will likely continue unabated, at least for the foreseeable future.
As such, we expect an increase in "off-the-clock" claims by
nonexempt employees, as well as class action suits seeking expense
reimbursements for employees' home office costs.
* Mitigate the risk of such claims by shoring up your timekeeping
practices and policies for the virtual workplace. Provide detailed
rules for recording time worked, set strict prohibitions against
working off the clock without prior approval, and ensure compliance
with state-law reimbursement mandates, particularly for employees
in California and Illinois
In addition, healthcare, hospitality/restaurants, and retail
employers -- industries already hard-hit by the pandemic, both
financially and operationally -- may be particularly vulnerable to
wage and hour class actions by onsite employees. Employers face the
prospect of class-wide overtime or off-the-clock lawsuits by
nonexempt essential workers for the time they are required to wait
in line for temperature scans; exempt managers who perform a
disproportionate amount of nonexempt work (in an effort to control
payroll costs) and now contend they are nonexempt employees; and
healthcare staff working extended shifts.
Beyond the wage and hour realm, employers can anticipate other
pandemic-related class action suits going forward. Claims may arise
over employer-mandated COVID-19 vaccinations, as well as
discrimination cases challenging employers' decisions as to which
employees they will bring back after extended furloughs.
See the Summer 2020 issue of the Class Action Trends Report for a
detailed look at pandemic-related class action vulnerabilities.
2. Biometric lawsuit settles for $550 million, more on the horizon
In a non-employment case, a social media company agreed to settle a
class action brought under the Illinois Biometric Information
Privacy Act (BIPA) for a record $550 million, the largest-ever
recovery in a privacy case. The plaintiffs in this massive class
action alleged that the company's use of facial-recognition
software to help users "tag" people in photographs violated the
Illinois law. The company collected, used, and stored biometric
identifiers without a written release, and failed to maintain a
retention schedule or guidelines for destroying biometric
identifiers, according to the plaintiffs.
Currently, Illinois is the only state with a biometric privacy
statute that allows individuals to bring claims for damages. The
plaintiffs in this case, brought on behalf of millions of Illinois
users, initially sought tens of billions of dollars in statutory
damages. The case was litigated in California against a
California-based defendant. The suit settled after the U.S. Supreme
Court rejected a petition for certiorari seeking review of an
opinion by the U.S. Court of Appeals for the Ninth Circuit
upholding the district court's decision to allow the class action
to proceed. The appeals court had rejected the defendant's
contention that the plaintiffs suffered no concrete injury from the
alleged BIPA violations and thus lacked standing to sue. In August
2020, the district court granted a motion for preliminary approval
of the settlement; final approval was granted on January 14, 2021.
This case offers important lessons, as BIPA claims against
employers continue to rise: (1) the reach of the statute extends
well beyond Illinois; (2) class-wide damages can be considerable;
and (3) in the employment context, we usually think of
fingerprint-scan timekeeping devices, but BIPA claims also arise
from the use of facial recognition software and other technologies
(for example, facial recognition in the context of COVID-19
employee screenings). And novel claims continue to emerge.
* Consult with counsel regarding the use of thermal scanners and
other "biometric" measures to control the spread of COVID-19 at the
worksite.
With privacy concerns a growing touchstone in an increasingly
technological culture, biometric privacy laws may be enacted in
other jurisdictions at both the state and local levels. Moreover,
the National Biometric Information Privacy Act, federal legislation
that closely mirrors the Illinois statute, was introduced in the
last Congress, and can be expected to resurface. Finally, several
significant BIPA cases currently on appeal could dramatically shape
the legal landscape.
3. The ground shifts on who is "similarly situated" for FLSA
collective actions
In 2020, the U.S. Supreme Court was asked to weigh in on a critical
issue related to collective actions under the Fair Labor Standards
Act (FLSA): What does it mean for a putative class of workers to be
"similarly situated" for purposes of proceeding as a collective
under the FLSA? According to the petition for certiorari seeking
review of an April 1, 2020, decision by the U.S. Court of Appeals
for the Second Circuit in Chipotle Mexican Grill v. Scott, there is
an "intractable conflict" among the federal courts on the issue.
However, on December 31, the parties asked the Court to stay the
petition, signaling their intent to settle their dispute.
Consequently, the Justices will not take up a case that could have
fundamentally reshaped how FLSA cases are litigated. Nonetheless,
2020 saw the continuation of a steady shift in the courts on the
issue.
The Chipotle case involved the decertification of a collective
action that already had been conditionally certified; as such, it
did not raise the more compelling issue of whether a collective
action should be conditionally certified in the first instance.
What should plaintiffs be required to show in order to pursue a
costly FLSA collective action, and how long should employers have
to litigate the certification issue before having the opportunity
to defend the claims on the merits?
Some courts apply a fairly low bar when granting conditional
certification under FLSA, Section 216(b), compared to the more
rigorous showing required to proceed as a class under Rule 23 of
the Federal Rules of Civil Procedure. The problem, in part, can be
traced to the two-step "Lusardi" approach used by courts across the
country in collective actions. Under this framework, courts grant
"conditional certification" without inquiring into the merits of
the allegations -- rather, they focus solely (and leniently) on
whether the plaintiffs are "similarly situated" to the employees
they seek to represent in a collective action; after discovery, the
employer can then move for "decertification." The problem, of
course, is that the employer is already drawn into costly
class-wide litigation and extensive discovery, and thus is
pressured into settling the matter -- meritorious or not -- just to
end the dispute.
On January 12, 2021, the U.S. Court of Appeals for the Fifth
Circuit issued a decision in Swales v. KLLM Transport Services,
LLC, a case that addresses head-on the extent to which a district
court may examine the factual circumstances of whether potential
opt-in plaintiffs are similarly situated before conditionally
certifying a class. The appeals court expressly disavowed the
twostep framework (emphasizing that the circuit had never formally
adopted Lusardi anyhow). Instead, the Fifth Circuit endorsed a
"gatekeeping" approach to deciding whether to certify collective
actions.
And while a Supreme Court decision in Chipotle would have offered
important clarity, it is the widely used Lusardi framework for FLSA
certification that is in more dire need of high court scrutiny. In
the meantime, at least within the Fifth Circuit, courts will apply
a fairer, more workable framework for evaluating whether potential
opt-in plaintiffs are similarly situated -- before conditional
certification is granted.
* An organization defending a putative collective action may find
it worthwhile, in certain jurisdictions, to urge the court to
consider merits evidence at the conditional certification stage to
defeat such claims at the outset.
(For a detailed discussion of the issue, see "Certifying a FLSA
collective -- or stirring up litigation?" in the Fall 2020 issue of
the Class Action Trends Report.)
4. FAA's transportation worker exemption splits the circuits
Another hotly contested procedural matter in wage and hour law in
2020 was whether "gig" drivers can be forced to arbitrate
independent contractor misclassification claims. Although the
Federal Arbitration Act (FAA) has sent many would-be class
litigations into individual arbitration in recent years, the
statute's "transportation worker exemption" -- which applies to
workers engaged in interstate commerce -- has become a potential
obstacle for some companies seeking to enforce their arbitration
agreements. The critical question is whether the exemption (which
covers both statutory employees and independent contractors, the
U.S. Supreme Court has held) applies to "last mile" delivery
drivers who do not cross state lines in the course of making
deliveries of out-of-state goods.
In July 2020, the U.S. Court of Appeals for the First Circuit held
that the exemption applied to an online retailer's drivers who
performed the last leg in the intrastate transport of goods
purchased online by customers; therefore, the drivers were not
covered by the FAA, and they could not be compelled to arbitrate
their independent contractor misclassification claims. One month
later, the Ninth Circuit adopted the same view. However, in a
divided panel opinion authored by now-Supreme Court Justice Amy
Coney Barrett, the U.S. Court of Appeals for the Seventh Circuit
rejected the notion that local drivers for a restaurant delivery
app fell under the FAA exemption. The Seventh Circuit hewed to a
narrower interpretation of the exemption, saying it applied solely
to individuals who are themselves directly "engaged in the channels
of foreign or interstate commerce."
* Businesses that utilize the services of delivery workers and
other drivers, either as employees or independent contractors,
should confer with counsel to determine whether the transportation
worker exemption presents an obstacle to enforcing their
arbitration agreements under the FAA. Even if an arbitration
agreement is not covered by the protective umbrella of the FAA,
which favors arbitration as a matter of federal policy, the
agreement may nonetheless be enforceable under state law.
In November 2020, the Supreme Court was asked to weigh in to
resolve the circuit split on this increasingly contentious issue in
2021. The Court has not decided whether to review the case yet. For
now, the uncertainty persists.
5. Jurisdictional challenges used to prevent nationwide class
certification
Since the U.S. Supreme Court's 2017 decision in BristolMyers Squibb
Co. v. Superior Court of California, a consumer mass tort action,
the federal judiciary has grappled with whether to exercise
personal jurisdiction when a resident of the forum state seeks to
represent a nationwide class that includes nonresidents. The same
question arises with respect to collective actions. As to both, the
federal courts have been sharply split. The issue of whether it
applies in Rule 23 class actions may be coming to a head, as the
Supreme Court in 2020 was asked to decide the question.
In Bristol-Myers, the high court held that California courts could
not exercise personal jurisdiction over the claims of out-of-state
class members who did not suffer their alleged injuries in the
state. Some federal courts have extended Bristol-Meyers to the
class or collective action context, while others have limited its
reach. Several of these cases reached the appellate level in 2020,
also with mixed results.
In one wage and hour dispute, a divided panel of the U.S. Court of
Appeals for the D.C. Circuit declined to resolve the issue
outright, instead ruling that a federal court could not dismiss
nonresident putative class members before a class action was
certified (reasoning that absent class certification, those
individuals are not parties before the court). The Fifth Circuit
reached a similar conclusion. On the other hand, the Seventh
Circuit held that Bristol-Myers does not apply to putative
nationwide class actions. The defendant in that case, Mussat v.
IQVIA Inc., has filed a petition for certiorari, which is currently
pending.
* Consider raising a challenge to certification on jurisdictional
grounds when faced with a putative nationwide class or collective
action. There are numerous factors to consider in determining
whether this is the optimal defense strategy. Counsel can assist in
identifying the benefits and drawbacks of this approach.
6. Only in California: Faulty pay stubs cost more than $100
million
In November 2020, the Ninth Circuit heard oral arguments in an
employer's appeal of a $102 million damages award in a class action
suit for violations of the California Labor Code -- more than $48
million of which was for violations of the Labor Code's itemized
wage statement requirement, and an additional $48 million in
penalties under the Private Attorneys General Act (PAGA). The
employer was assessed another $5.8 million in PAGA penalties for
violating the Labor Code's final wage statement provisions, and an
additional $70,000 in PAGA penalties for meal period violations.
While Proposition 22 is limited to app-based rideshare and delivery
companies, its passage may spur other industries to take their
arguments for independent contractor classification to the voters.
The argument focused primarily on whether the plaintiff had
suffered an actual injury sufficient to confer standing to sue for
PAGA purposes. He had no monetary loss from the technical pay stub
violation; the alleged harm was his inability to ensure that he was
paid what he was owed. According to the plaintiff, though, his
injury was not the issue: under the PAGA, he was entitled to
enforce the state law and pursue relief on behalf of a class of
aggrieved workers (50,000 of them in this case) even if he was not
himself injured, he claimed.
An additional issue at oral argument was whether the pay stub
violation was "knowing or intentional," as the statute requires
before damages can be imposed. Notably, this was a case of "no good
deed goes unpunished": the wage statement violation resulted from
the company's failure to clearly identify on workers' pay stubs how
the bonuses that it gave employees were calculated into their
hourly rate for overtime purposes.
The Ninth Circuit's ruling in the case may narrow a trial court's
ability to impose PAGA penalties on California employers when the
plaintiff has not suffered financial harm.
* Seemingly harmless, inadvertent breaches can lead to exorbitant
penalties. To avoid such damages, California employers must ensure
their wage statements are fully compliant with applicable Labor
Code provisions.
7. California vote favors rideshare companies; other states in
flux
In the November 3, 2020, election, California voters passed
Proposition 22, an initiative that creates a carveout from
California's independent contractor law (A.B. 5) for app-based
drivers. Under the new law, app-based rideshare and delivery
companies may hire drivers as independent contractors if certain
conditions are met, including minimum compensation levels; health
insurance subsidies to qualifying drivers; medical costs for
on-the-job injuries; and restrictions on working more than 12 hours
in a 24-hour period for a single company. The companies also must
develop sexual harassment policies, conduct criminal background
checks, and require safety training for drivers.
While Proposition 22 is limited to app-based rideshare and delivery
companies, its passage may spur other industries to take their
arguments for independent contractor classification to the voters.
The measure's passage also may impact similar battles going on with
rideshare and delivery companies in other states as well as states
that had planned to follow California's lead and adopt similar
legislation regulating the classification of app-based drivers.
Meanwhile, there is no clear guidance for businesses outside of
California. In one closely watched case, the U.S. Court of Appeals
for the Third Circuit revived a class action lawsuit brought by
drivers claiming they were misclassified as independent contractors
within the meaning of the FLSA and similar Pennsylvania laws. The
case was remanded to district court and, in November 2020, the
appeals court denied the employer's petition for en banc review.
Though the Department of Labor's recently finalized independent
contractor rule was expected to provide much-needed guidance, its
future is uncertain under the Biden administration. (See "The Biden
administration: What employers can expect" on pg. 14).
* Independent contractor classification remains a moving target,
with continual legislative and regulatory developments on the
federal, state, and local levels creating a confusing compliance
minefield for businesses wishing to utilize the services of
independent workers.
8. Sexual harassment securities fraud class action settles for $240
million
A national jewelry retailer settled a sexual harassment-related
securities fraud class action for $240 million -- among the top 75
securities class action settlements of all time, according to the
lead plaintiff. A federal district court signed off on the parties'
agreed settlement in 2020.
Previously, the court had certified a class of investors who
claimed the retailer had artificially inflated its stock price by
making materially misleading statements and omissions about its
culture of sexual harassment and the strength of its in-house
customer financing credit portfolio.
The court rejected the retailer's claim that the dual nature of the
case -- the two distinct theories of securities fraud and sexual
harassment -- precluded certification. The court also denied the
retailers' motion to dismiss and, after extensive litigation, the
parties entered mediation and ultimately reached a settlement
agreement.
* It is not clear how much of the $240 million settlement related
specifically to the underlying sexual harassment allegations.
However, the case is an important reminder of an employer's
potential liability -- not just to a class of employees, but to
investors -- if a culture of harassment is allowed to permeate a
workplace.
9. Eleventh Circuit bars incentive awards for class plaintiffs
In a suit brought under the Telephone Consumer Protection Act
(TCPA), a divided U.S. Court of Appeals for the Eleventh Circuit
ruled that "incentive" or "service" awards to lead plaintiffs in
Rule 23 class actions are unlawful. As of now, the decision is an
anomaly, but it is a noteworthy development.
The panel majority reasoned that the U.S. Supreme Court prohibited
the award of incentive payments to plaintiffs more than a century
ago, although it acknowledged the high court's directive has since
gone unheeded, as incentive awards are routine features of class
settlements today. As a result of the opinion, future class
settlements in the Eleventh Circuit may no longer provide named
plaintiffs with incentive awards.
Significantly, this is the first time a federal court of appeals
has expressly invalidated incentive awards as a matter of law, and
it remains to be seen whether other circuit courts will follow its
lead. Additionally, whether the majority's rationale will be
applied in the context of collective actions brought under Section
216(b) of the FLSA, or to the settlement of hybrid claims under
both Rule 23 and Section 216(b) is an open question.
* The prospect of incentive awards often is dangled by plaintiffs'
attorneys in their efforts to recruit named plaintiffs for a class
litigation. The circuit court's ruling may reduce the number of
class cases initiated by plaintiffs' lawyers in search of a
claimant. On the other hand, incentive awards can be an important
settlement term when attempting to resolve a putative class claim
without extensive litigation.
10. COVID-19 slams higher education
Colleges and universities have been inundated with class action
suits directly related to the COVID-19 crisis. Last spring, as the
pandemic surged, many institutions of higher education were forced
to abruptly shutter their residence halls and transition to online
instruction for the safety of students, faculty and staff. In the
aftermath, students filed suit alleging they were entitled to
partial reimbursement of tuition and fees and room and board.
New class action cases are being filed almost daily, with novel
theories of liability continuing to emerge, and some of the initial
suits have avoided early dismissal. As the state of the pandemic
and on-campus instruction are likely to remain in flux, at least
through the remainder of this academic year, new pandemic-related
tuition claims may be filed well into 2021. [GN]
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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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