/raid1/www/Hosts/bankrupt/CAR_Public/210216.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, February 16, 2021, Vol. 23, No. 28
Headlines
180 3RD AVENUE: Castaneda Labor Suit Seeks Unpaid Minimum, OT Wages
3M CO: 1st Bellwether Trial in Defective Earplug Suit Set for March
3M CO: 331 Plaintiffs Added in Billings Class Suit
3M CO: 943 Class Suits Filed Over Aqueous Film Forming Foam
3M CO: Bair Hugger Suit in Ontario Underway
3M CO: Bid to Dismiss Amended Delaware Class Action Pending
3M COMPANY: Dean Suit Claims PFAS Exposure From AFFF Products
3M COMPANY: Dumoulin Sues Over Exposure to Toxic AFFF Products
ABC PHONES: Baggott FLSA Collective Action Gets Class Certification
ABIOMED INC: Bid to Nix Local 705 Teamsters' Class Suit Pending
ADVANCED HOUSE: Peterson Sues Over Unpaid Wages for House Managers
ADVANTAGE CHRYSLER: Toney FDCPA Suit Seeks Class Certification
ALLERGAN USA: Field Sues Over Breast Implants' Adverse Events
ALLSTATE FIRE: Court Dismisses 2nd Amended Complaint in Cody Suit
ALLY FINANCIAL: Faces Clapp Suit Over Stock Market Manipulation
AMAZON.COM INC: Averts Employees' Class Action Over BLM Retaliation
AMAZON.COM INC: Class Action Against Firm, Whole Foods Dismissed
AMERICAN MEADOWS: Williams Files ADA Suit in S.D. New York
AMERICAN TOMBOY: Burbon Files ADA Suit in E.D. New York
APPCO GROUP: Federal Court Approves Class Action Settlement
APPLE INC: Seeks Ct. OK on Joint Stipulation Regarding Class Period
ASTRAZENECA PLC: Faruqi & Faruqi Reminds of March 29 Deadline
ATHENA ALLERGY: Paguada Files ADA Suit in S.D. New York
BALBOA THRIFT: Bid to Compel Arbitration & Dismiss Camarillo OK'd
BANK OF AMERICA: EDD Cardholders Sues Over Unemployment Insurance
BANK OF AMERICA: Faces Class Action Over EDD Debit Card Hacking
BANK OF AMERICA: Fails to Secure EDD Account Info, Cajas Alleges
BANK OF AMERICA: Jobless Workers Are Losing Benefits to Scammers
BAYER CROPSCIENCE: Lex Sues Over Monopoly of Crop Inputs Market
BEECH-NUT NUTRITION: Peek Files Product Liability Suit in New York
BEECH-NUT NUTRITION: Thomas Sues Over Mislabeled Baby Food Products
BELLRING BRANDS: Class Suit Against Premier Nutrition Ongoing
BIT DIGITAL: Hagens Berman Reminds Investors of March 22 Deadline
BIT DIGITAL: Klein Law Reminds Investors of March 22 Deadline
BLAND LANDSCAPING: Roldan FLSA Suit Seeks to Certify Foremen Class
BLOOMSCAPE INC: Williams Files ADA Suit in S.D. New York
BONOBOS INC: Faces Kemp $5M Suit in Southern District of New York
BP PLC: Stikeman Elliott Attorney Discusses Class Action Ruling
CAPTIVA MVP: 11th Cir. Affirms Dismissal of Tsao Data Breach Suit
CARDINAL HEALTH: Bid to Junk Generic Pharmaceutical Suit Pending
CARDINAL HEALTH: Bid to Nix 1199 SEIU Health Care Suit Pending
CBSC INC: Deadline for Class Status Bid Filing Extended to April 2
CENTER FOR ADDICTIVE PROBLEMS: Chambers Seeks OT Pay Under FLSA
CERTAIN UNDERWRITERS: Denial of Class Certification Bid Sought
CHOBANI LLC: Yogurt Doesn't Contain Madagascar Vanilla, Suit Says
CHOWBUS INC: Flores Suit Seeks Minimum & OT Wages Under FLSA, NYLL
CIRCLE K STORES: Pettersen CFAL Suit Removed to S.D. California
CLOVER HEALTH: Faces Bond Suit Over 12.3% Drop in Share Price
CLOVER HEALTH: Rosen Law Firm Reminds Investors of April 6 Deadline
CLOVER HEALTH: Schall Law Firm Reminds of April 6 Deadline
CONTINENTAL INTERMODAL: Hubbard Suit Seeks OT Wages Under NMMWA
CORAL SPRINGS: Snarski TCPA Suit Removed to S.D. Florida
COSTCO WHOLESALE: Cohen Suit Removed From State Court to C.D. Cal.
CULLEN/FROST: Class Suits Over PPP Loan Agent Fees Dismissed
D&W FINE: Illegally Collects Employees' Fingerprints, Smith Alleges
DALE ELECTRONICS: Quezada Files ADA Suit in S.D. New York
DAUGHERTY SYSTEMS: Seeks to Decertify Conditional Collective Class
DAVANTAGE GROUP: Settles Motor Warranty Class Action for $9.5MM
DAVITA INC: Kyros Law Files Legal Claims on Behalf of Investors
DECISION DIAGNOSTICS: Faruqi & Faruqi Reminds of March 16 Deadline
DIRECTV LLC: Creve Coeur Suit Removed from Circuit Ct. to E.D. Mo.
DISCOUNT DANCE: Blind Users Can't Access Website, Sanchez Claims
DXC TECHNOLOGY: Appeal on Class Action's Dismissal Pending
DXC TECHNOLOGY: Hearing on Bid for Initial Cert. Set for April 15
DXC TECHNOLOGY: Hearing on Bid to Junk Class Suit Set for April 23
DYCK O'NEAL: Feb. 15 Extension to Class Status Bid Response Sought
EAST BATON ROUGE, LA: Bids to Dismiss Belton v. Gautreaux Granted
ELAP SERVICES: Hospital Bid to Appoint Interim Class Counsel Tossed
ENDO INT'L: Court to Pick Bucks County as Lead in Pelletier Suit
EXECUTIVE CAR RENTAL: Jardine Seeks Unpaid Overtime Under FLSA
EXPRESS SCRIPTS: Perez Suit to File New Class Status Bid by Feb. 19
FADA GROUP: New Jersey Court Dismisses Lin Suit Without Prejudice
FEDEX CORP: Wins Bid to Dismiss Consolidated Securities Suit
FLO HEALTH: Faces Frasco Class Suit Over Data Disclosure Practices
FOGO DE CHAO: Garcia-Alvarez Labor Suit Removed to E.D. Texas
FORD MOTOR: Still Faces Class Action Over Fuel Economy Testing
FORTUNE MEDIA: Blind Users Can't Access Website, Sanchez Claims
FRANKLIN COLLECTION: Wormley Files TCPA Suit in N.D. Texas
FROM NOTHING: Jaquez Files ADA Suit in S.D. New York
G95 INC: Faces Tatum-Rios ADA Suit in Southern District of New York
GENERAL ELECTRIC: 2nd Cir. Affirms Dismissal of Varga ERISA Suit
GENERAL MOTORS: Goldstein's Claims in 2nd Amended Suit Narrowed
GENERAL MOTORS: Walker Files Suit in E.D. Michigan
GODADDY INC: Pinto Appeals Ruling in Drazen TCPA Suit to 11th Cir.
GOOGLE LLC: Mikula Web Sues Over Monopoly of Display Ad Stack
GOOGLE LLC: Paige Antitrust Suit Transferred to N.D. California
GT JAPAN: Cavallero Sues Over Mislabeled Vanilla Ice Cream
HACHETTE BOOK: Five Defendants Named in E-Book Price-Fixing Suit
HEALTH INSURANCE: Appointment of LKLSG, TDF as Class Counsel Sought
HIGHMARK BCBSD: Pennsylvania Court Denies Walker's Bid to Remand
HOMEGOODS INC: Blumenthal Nordrehaug Files Labor Class Action
HYDROBUILDER LLC: Williams Files ADA Suit in S.D. New York
IRHYTHM TECHNOLOGIES: Thornton Law Reminds of April 2 Deadline
IRHYTHM TECHNOLOGIES: Vincent Wong Reminds of April 2 Deadline
JERRY ERWIN: Miller BIPA Suit Removed From Circuit Ct. to C.D. Ill.
JOHNSON & JOHNSON: Briskin Sues Over Baby Powder's Side Effects
JONES SEPTIC: Settlement Agreement Gets Approval in Rumph Suit
KAWADA COMPANY: Garcia Seeks Online Hotel Booking's Access Features
KEURIG DR PEPPER: Faces Class Suit Over Deceptive Vanilla Flavoring
KEYPOINT GOVERNMENT: Loses Bid to Compel Arbitration in Brayman
KINGSFORD PRODUCTS: Briquettes Aren't 100% Natural, Lee Claims
KORE ESSENTIALS: Paguada Files ADA Suit in S.D. New York
KOTOBUKI RESTAURANT: Fong Files FLSA Suit in E.D. New York
KRAFT TOOL: Burbon Files ADA Suit in E.D. New York
LANE BRYANT: Young Files ADA Suit in S.D. California
LAS VEGAS SANDS: Daniels Family 2001 Revocable Trust Suit Underway
LIONS GATE: Continues to Seek Added Reimbursement from Insurers
LLOYD'S, LONDON: 632 Metacom Suit Moved From N.Y. to Rhode Island
LOADED BOARDS: Quezada Files ADA Suit in S.D. New York
LOGISTICARE SOLUTIONS: Feb. 18 Response to Class Status Bid Sought
MANHATTAN LUXURY: Class Status Bid Nixed w/o Prejudice
MARKET VIEW: AWL Borrowers Sue Over Payday Loans in E.D. Pa.
MCKINSEY & CO: Pembroke Pines Sues For Misbranding OxyContin Drugs
MEDCIPHERS LLC: Underpays Personal Support Aides, Dawson Suit Says
MEDSTAR HEALTH: District of Maryland Refuses to Toss ERISA Suit
MENORAH PARK: Class of Nurses Conditionally Certified in Thompson
MERCEDES-BENZ USA: Faces Class Action Over Radiator Guards
MERCEDES-BENZ USA: Faces Hadjian Suit in Northern Dist. of Georgia
MERCEDES-BENZ USA: Zaroukian Sues Over Defective Panoramic Sunroofs
MICHIGAN: Court Dismisses Most Claims in Richards v. Whitmer
MICROCHIP TECH: Discovery Ongoing in Jackson Putative Class Suit
MIDLAND CREDIT: Faces Silverman FDCPA Suit in S.D. New York
MIDTOWN INVESTMENTS: Website Lacks Accessibility Info, Garcia Says
MILLER COUNTY, AR: Grissom's Bid to Certify Inmates Class Denied
MODERN ROOFING: Faces Restrepo Suit Over Unpaid Wages, Retaliation
MONROE COUNTY, NY: Restaurants Allowed to Break COVID Curfew
MPC HOLDINGS: Class Certification Bid Stricken in Morris FLSA Suit
MPC HOLDINGS: Morris Seeks to Certify Class of Day Rate Inspectors
MUIR LONGBOARD: Quezada Files ADA Suit in S.D. New York
NATIONAL FOOTBALL: Gill Sues Over Game Pass Livestream Subscription
NECA/IBEW FAMILY: Court Modifies Class Certification in D.T. Suit
NETFLIX INC: Lancaster Joins Class Action Over Streaming Services
NEW YORK CITY: Class Action Settlement Wins Preliminary Approval
NICK'S MANAGEMENT: Predmore Suit Stayed; Bid to Arbitrate Granted
NICOLAS THOMAS SCOTT: Scott Buying Kit Carson County Land for $76K
NORFOLK SOUTHERN: Continues to Defend Fuel Surcharge-Related Suit
NORTH DAKOTA: ACLU Files Brief in Support of Road Closure Suit
NORTONLIFELOCK INC: Trial in California Class Suit Set for June 14
NYCDOE: M.G. Suit Seeks to Certify Class of Students with IEPs
OHIO: Labor Group Calls for End to Farm Contractor Abuses
OLIVIAN HOSPITALITY: Faces Garcia ADA Suit Over Reservation System
OTIS WORLDWIDE: Darnis Putative Class Suit Underway
OUTOKUMPU STAINLESS: Hornady's Bid for Equitable Tolling Denied
PAPA JOHN'S: 2nd Amended OLERS Complaint Dismissed With Prejudice
PASCHALL TRUCK: Extension of Rule 23 Motion Filing Deadlines Sought
PAYLOCITY HOLDING: BIPA Related Putative Class Suit Underway
PAYPAL HOLDINGS: Dismissal in TIO Operation Related Suit Affirmed
PELOTON INTERACTIVE: Faces Loaiza ADA Suit in C.D. California
PENUMBRA INC: Kessler Topaz Reminds of March 16 Deadline
PHOENIX, AZ: Police "Challenge Coins" Depict Violence From Protest
PHYSICIAN COMPASSIONATE: Teblum Gets Prelim. OK of Class Settlement
PINTEREST INC: Facing Putative Securities Class Suit in California
PLANT DELIGHTS: Blind Users Can't Access Website, Williams Alleges
PMA INSURANCE: Amended Sims Complaint Dismissed Without Prejudice
POLAND: 200 Hospitality Sector Companies to Join Class Action Suit
PORSCHE CARS: Faces Bowen Suit in Northern District of Georgia
POST HOLDINGS: Egg Products Antitrust Class Suit vs. MFI Ongoing
PRECISION 2000: Conditional Collective Status Sought in FLSA Suit
PRIMARY COLOR: Website Not Accessible to Blind Users, Loaiza Says
PTC INC: 401(K) Plan Related Suit in Massachusetts Underway
QUANTUM HEALTH: Court Certifies Utilization Review Employee Class
QUEEN'S TREASURE: Burbon Files ADA Suit in E.D. New York
RIEBE'S AUTO: Faces Vega Employment Suit in California State Court
ROBERTA PLACE: Fails to Protect Residents Against COVID, Suit Says
ROBERTA PLACE: To Fight Class Action Over COVID-19 Outbreak
ROBINHOOD FINANCIAL: Faces Suit Over Improper Trading Practices
ROBINHOOD FINANCIAL: GameStop Frenzy May Worsen Social Inflation
ROBINHOOD FINANCIAL: Manipulates Stock Market, Petrosyan Suit Says
ROBINHOOD FINANCIAL: Manipulates Trading Platform, Muncy Suit Says
ROBINHOOD FINANCIAL: Mehta Consumer Suit Goes to N.D. California
ROBINHOOD FINANCIAL: Senate to Hold Hearing Amid Gamestop Lawsuit
ROBINHOOD FINANCIAL: Six Hedge Funds Included in Class Action Suit
RUSTIC DIME: Ruiz Sues Over Unpaid Wages, Retaliation & Harassment
SAG-AFTRA: Suspends Annual Dues Hike Amid Health Plan Class Action
SAINT LUKE'S HEALTH: March 11 Response to Class Cert. Bid Sought
SANTA MONICA: Alequin Files Suit in Illinois Over BIPA Violations
SELIGMAN WESTERN: Lowry Seeks to Recover Managers' Unpaid Wages
SETTON PISTACHIO: Magistrate Endorses Denial of Ali's Remand Bid
SIFCO INDUSTRIES: April 16 Final Settlement Approval Hearing Set
SM ENERGY: Chieftain Royalty Bid for Class Certification Tossed
SOLARWINDS CORP: Jakubowitz Law Reminds of March 5 Deadline
SONOMA PLANT: Williams Files ADA Suit in S.D. New York
SOUTHWEST AIRLINES: Court Certifies Class in Huntsman USERRA Suit
SPAIN: Hospitality Sector Mulls Class Action Over Business Closures
SPARTAN RACE: Settlement Class Gets Conditional Certification
SPX CORP: Court Grants Bid for Summary Judgment in Brass Class Suit
SPX CORPORATION: Brass Amended Complaint Nixed w/ Prejudice
STELVIO TRANSPORT: Faces Johnson Wage-and-Hour Suit in California
SUPER MICRO: Bid to Dismiss NY Trades Council & Hotel Suit Pending
SYMMETRY MANAGEMENT: Class Status Bid Partly Granted in Dunbar Suit
TIERNO CARE: Castro Seeks Unpaid Wages, Back-Pay Under FLSA, DCMWA
TOPNET INC: Jaquez Files ADA Suit in S.D. New York
TRACFONE WIRELESS: Jones' Claims Tossed; May Amend Suit by March 5
TRANSAM TRUCKING: Roberts Claims Unpaid Minimum Wages for Drivers
TRITERRAS INC: The Klein Law Reminds of February 19 Deadline
UBER BV: McCarthy Tetrault Attorneys Discuss Class Action Ruling
UGI CORP: Agreement Reached with Indirect Purchaser Plaintiffs
ULTRA SHINE: Approval of Collective Action Notice Sought
ULTRALIFE CORP: Gains $1,593 in Batteries Antitrust Suit Settlement
UNION PACIFIC: Brasier Suit Alleges Disability Discrimination
UNION PACIFIC: Fitness-for-Duty Program Violates ADA, DeFries Says
UNITED AIRLINES: Seventh Cir. Flips Dismissal of White USERRA Suit
UNITED STATES: Faces Racial Discrimination Class Action Lawsuit
UNIVERSITY OF MICHIGAN: Ex-Pilots Join Sexual Misconduct Case
UNLIMITED CARRIER: Roberson Suit Seeks Unpaid Wages for Drivers
UPS STORE: Shavers Consumer Class Suit Removed to N.D. Illinois
USA TECHNOLOGIES: Purchasers Class Action Suit in PA Concluded
USA TECHNOLOGIES: Shareholder Suit in Chester County Court Stayed
VMS DATA: Rojas Sues Over Unpaid Overtime for Sales Associates
WALGREENS BOOTS: Court Tosses 1st Amended Complaint in Smith Suit
WASHINGTON BULB: Williams Files ADA Suit in S.D. New York
WEST TOWN: Somervlele Suit Gets Class, Subclasses Certification
WESTCHESTER PARKWAY: Fails to Pay Nurses' Proper Wages, Edgar Says
WHOLE FOODS: Claims in Campbell First Amended Complaint Narrowed
WILMINGTON SAVINGS: Antonio Sues Over Car Repossession Practices
WILMINGTON SAVINGS: Marvastian Sues Over Debt Collection Practices
WILSHIRE ROYALE: Garcia Sues Over Hotel Booking's Violation of ADA
WORLD WRESTLING: Awaits Preliminary Approval of Settlement
WORLD WRESTLING: Continues to Defend Wrestlers' Class Suits
YAMAHA MOTOR: Cal. App. Affirms Summary Judgment Against Baker
[*] FCA Issues Statement on Recent Gamestop Share Trading Issues
*********
180 3RD AVENUE: Castaneda Labor Suit Seeks Unpaid Minimum, OT Wages
-------------------------------------------------------------------
JAIME CASTANEDA and LEONEL CASTANEDA, individually and on behalf of
others similarly situated v. 180 3RD AVENUE LLC. (D/B/A WESTSIDE
MARKET), 74-84 WESTSIDE MARKET LLC (d/b/a WESTSIDE MARKET), GEORGE
ZOITAS, GUILLERMO DOE, and ALEX DOE, Case No. 1:21-cv-00961
(S.D.N.Y., Feb. 2, 2021) seeks to recover unpaid minimum and
overtime wages pursuant to the Fair Labor Standards Act of 1938 and
the New York Labor Law, including applicable liquidated damages,
interest, attorneys' fees and costs.
According to the complaint, the Plaintiffs worked for Defendants in
excess of 40 hours per week, without appropriate minimum wage,
overtime, and spread of hours compensation for the hours that they
worked. Rather, the Defendants failed to maintain accurate
recordkeeping of the hours worked and failed to pay the Plaintiffs
appropriately for any hours worked, either at the straight rate of
pay or for any additional overtime premium. Further, the Defendants
failed to pay the Plaintiffs the required "spread of hours" pay for
any day in which they had to work over 10 hours a day, says the
suit.
The Plaintiffs were employed as produce workers at the Defendants'
supermarket.
The Defendants own, operate, or control a chain of supermarkets,
located at 180 Third Avenue, New York, New York under the name
"Westside Market". The individual Defendants George Zoitas,
Guillermo Doe, and Alex Doe, serve or served as owners, managers,
principals, or agents of the Defendant Corporations.[BN]
The Plaintiffs are represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Faillace@employmentcompliance.com
3M CO: 1st Bellwether Trial in Defective Earplug Suit Set for March
-------------------------------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that the first bellwether
trial in Defective Earplugs Suitis scheduled to begin in March
2021.
Aearo Technologies sold Dual-Ended Combat Arms – Version 2
earplugs starting in about 2003. 3M acquired Aearo Technologies in
2008 and sold these earplugs from 2008 through 2015, when the
product was discontinued.
In December 2018, a military veteran filed an individual lawsuit
against 3M in the San Bernardino Superior Court in California
alleging that he sustained personal injuries while serving in the
military caused by 3M's Dual-Ended Combat Arms earplugs – Version
2. The plaintiff asserts claims of product liability and fraudulent
misrepresentation and concealment. The plaintiff seeks various
damages, including medical and related expenses, loss of income,
and punitive damages.
As of December 31, 2020, the Company is a named defendant in
approximately 3,130 lawsuits (including 14 putative class actions)
in various state and federal courts that purport to represent
approximately 12,400 individual claimants making similar
allegations.
In April 2019, the U.S. Judicial Panel on Multidistrict Litigation
granted motions to transfer and consolidate all cases pending in
federal courts to the U.S. District Court for the Northern District
of Florida to be managed in a multi-district litigation (MDL)
proceeding to centralize pre-trial proceedings.
Discovery is underway. The plaintiffs and 3M filed preliminary
summary judgment motions on the government contractor defense.
In July 2020, based on the then current record, the court granted
the plaintiffs' summary judgment motion and denied the defendants'
summary judgment motion, ruling that plaintiffs’ claims are not
barred by the government contractor defense.
The court denied the Company's request to immediately certify the
summary judgment ruling for appeal to the U.S. Court of Appeals for
the Eleventh Circuit.
In December 2020, the MDL court granted the plaintiffs' motion to
consolidate three plaintiffs for the first bellwether trial
scheduled to begin in March 2021.
Individual trials for the next two bellwether plaintiffs are
scheduled to proceed in May and June of 2021.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: 331 Plaintiffs Added in Billings Class Suit
--------------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that 331 additional plaintiffs
have been added in the "Billings" putative class action suit.
In August 2016, a group of over 200 plaintiffs filed a putative
class action against West Morgan-East Lawrence Water and Sewer
Authority (Water Authority), 3M, Dyneon, Daikin, BFI Waste Systems
of Alabama (BFI), and the City of Decatur in state court in
Lawrence County, Alabama.
Plaintiffs are residents of Lawrence, Morgan and other counties who
are or have been customers of the Water Authority. They contend
defendants have released PFAS that contaminate the Tennessee River
and, in turn, their drinking water, causing damage to their health
and properties.
In January 2017, the court in the St. John case, stayed this
litigation pending resolution of the St. John case. Plaintiffs in
the Billings case amended their complaint in November 2020 and
added 557 additional plaintiffs, and in January 2021 amended again
to add 331 additional plaintiffs.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: 943 Class Suits Filed Over Aqueous Film Forming Foam
-----------------------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that as of December 31, 2020,
there were 943 cases in the MDL, 933 of which name 3M as a
defendant, related to Aqueous Film Forming Foam (AFFF).
3M manufactured and marketed AFFF for use in firefighting at
airports and military bases from approximately 1963 to 2002. As of
December 31, 2020, 943 lawsuits (including 26 putative class
actions) alleging injuries by AFFF use have been filed against 3M
(along with other defendants) in various state and federal courts.
As previously noted, some of these cases have been brought by state
or territory attorneys general. In most of these cases, plaintiffs
typically allege that certain PFAS used in AFFF contaminated the
soil and groundwater where AFFF was used and seek damages for
alleged injuries such as loss of use and enjoyment of properties,
diminished property values, investigation costs, remediation costs,
personal injury and/or funds for medical monitoring. 414 cases
filed since October 2019 have been brought by current or former
firefighters who claim to have suffered personal injury as a result
of exposure to AFFF while using the product.
The United States, the U.S. Department of Defense and several
companies have been sued along with 3M, including but not limited
to Ansul Co. (acquired by Tyco, Inc.), Angus Fire, Buckeye Fire
Protection Co., Chemguard, Chemours, DuPont, National Foam, Inc.,
and United Technologies Corp.
In December 2018, the U.S. Judicial Panel on Multidistrict
Litigation (JPML) granted motions to transfer and consolidate all
AFFF cases pending in federal courts to the U.S. District Court for
the District of South Carolina to be managed in an MDL proceeding
to centralize pre-trial proceedings. Additional AFFF cases continue
to be transferred into the MDL as they are filed or removed to
federal court.
As of December 31, 2020, there were 947 cases in the MDL, 943 of
which name 3M as a defendant. The parties in the MDL are currently
in the process of conducting discovery.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Bair Hugger Suit in Ontario Underway
-------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that the company continues to
defend itself against a putative class action related to the
company's Bair Hugger(TM) patient warming system, pending before
the Ontario Superior Court of Justice.
In June 2016, the Company was served with a putative class action
filed in the Ontario Superior Court of Justice for all Canadian
residents who underwent various joint arthroplasty, cardiovascular,
and other surgeries and later developed surgical site infections
that the representative plaintiff claims was due to the use of the
Bair Hugger(TM) patient warming system.
The representative plaintiff seeks relief (including punitive
damages) under Canadian law based on theories similar to those
asserted in the MDL.
No liability has been recorded for the Bair Hugger(TM) litigation
because the Company believes that any such liability is not
probable and estimable at this time.
No further updates were provided in the Company's SEC report.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M CO: Bid to Dismiss Amended Delaware Class Action Pending
-----------------------------------------------------------
3M Company said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 4, 2021, for the
fiscal year ended December 31, 2020, that the motion seeking
dismissal of the amended class action complaint in Delaware is
pending.
In Delaware, 3M, together with several co-defendants, is defending
one putative class action brought by individuals alleging
Perfluorooctanoic acid (PFAS) contamination of their water supply
resulting from the operations of local metal plating facilities.
Plaintiffs allege that 3M supplied PFAS to the metal plating
facilities. DuPont, Chemours, and the metal platers have also been
named as defendants.
This case has been removed from state court to federal court, and
plaintiffs have withdrawn its motion to remand to state court and
filed an amended complaint.
3M has filed a motion to dismiss the amended complaint.
3M Company operates as a technology company worldwide. The
company's Industrial segment offers tapes, abrasives, adhesives,
ceramics, sealants, specialty materials, purification products,
closure systems, acoustic systems products, automotive components,
abrasion-resistant films, and paint finishing and detailing
products. The company was founded in 1902 and is headquartered in
St. Paul, Minnesota.
3M COMPANY: Dean Suit Claims PFAS Exposure From AFFF Products
-------------------------------------------------------------
DAVID DEAN, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:21-cv-00400-RMG
(D.S.C., February 8, 2021) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The case arises from a personal injury sustained by the Plaintiff
as a result of his exposure to the Defendants' aqueous film forming
foam (AFFF) products containing synthetic, toxic per- and
polyfluoroalkyl substances collectively known as PFAS. The
Defendants failed to use reasonable and appropriate care in the
design, manufacture, labeling, warning, instruction, training,
selling, marketing, and distribution of their PFAS-containing AFFF
products and also failed to warn public entities and firefighter
trainees, including the Plaintiff, who they knew would foreseeably
come into contact with their AFFF products that use of and/or
exposure to the products would pose a danger to human health. Due
to inadequate warning, the Plaintiff was exposed to toxic chemicals
and developed serious medical conditions and complications, the
suit says.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
3M COMPANY: Dumoulin Sues Over Exposure to Toxic AFFF Products
--------------------------------------------------------------
VERNON DUMOULIN, individually and on behalf of all others similarly
situated, Plaintiff v. 3M COMPANY f/k/a Minnesota Mining and
Manufacturing Company; ACG CHEMICALS AMERICAS INC.; AMEREX
CORPORATION; ARCHROMA U.S. INC.; ARKEMA, INC.; BUCKEYE FIRE
EQUIPMENT COMPANY; CARRIER GLOBAL CORPORATION; CHEMDESIGN PRODUCTS,
INC.; CHEMGUARD, INC.; CHEMICALS, INC.; CHEMOURS COMPANY FC, LLC;
CHUBB FIRE, LTD; CLARIANT CORP.; CORTEVA, INC.; DEEPWATER
CHEMICALS, INC.; DU PONT DE NEMOURS INC. f/k/a DOWDUPONT INC.;
DYNAX CORPORATION; E.I. DU PONT DE NEMOURS AND COMPANY;
KIDDE-FENWAL, INC.; KIDDE PLC; NATION FORD CHEMICAL COMPANY;
NATIONAL FOAM, INC.; THE CHEMOURS COMPANY; TYCO FIRE PRODUCTS LP,
as successor-in-interest to The Ansul Company; UNITED TECHNOLOGIES
CORPORATION; UTC FIRE & SECURITY AMERICAS CORPORATION, INC. f/k/a
GE Interlogix, Inc., Defendants, Case No. 2:21-cv-00409-RMG
(D.S.C., February 9, 2021) is a class action against the Defendants
for negligence, battery, inadequate warning, design defect, strict
liability, fraudulent concealment, breach of express and implied
warranties, and wantonness.
The suit arises from the Defendants' failure to use reasonable and
appropriate care in the design, manufacture, labeling, warning,
instruction, training, selling, marketing, and distribution of
aqueous film forming foam (AFFF) products containing the toxic
chemicals collectively known as per and polyfluoroalkyl substances
(PFAS). The Defendants' PFAS-containing AFFF products are highly
toxic and dangerous as PFAS binds to proteins in the blood of
humans exposed to the material and remains and persists over long
periods of time. Due to their unique chemical structure, PFAS
accumulates in the blood and body of exposed individuals. The
Defendants failed to warn public entities and firefighter trainees,
including the Plaintiff, who they knew would foreseeably come into
contact with their AFFF products that use of and/or exposure to the
Defendants' AFFF products containing PFAS and/or its precursors
would pose a danger to human health, the suit says.
The Plaintiff seeks to recover compensatory and punitive damages
arising out of the permanent and significant damages sustained as a
direct result of exposure to the Defendants' AFFF products at
various locations during the course of his training and
firefighting activities.
3M Company, f/k/a Minnesota Mining and Manufacturing Co., is a
multinational conglomerate corporation and designer, marketer,
developer, manufacturer, distributor of firefighting equipment,
including those with AFFF. It is located at 3M Center, St. Paul.
Minnesota.
ACG Chemicals Americas Inc. is a manufacturer of chemical products
based in Exton, Pennsylvania.
Amerex Corporation is a manufacturer of firefighting products based
in Trussville, Alabama.
Archroma U.S. Inc. is a global specialty chemicals company
headquartered in Charlotte, North Carolina.
Arkema, Inc. is a diversified chemicals manufacturer in North
America, based in King of Prussia, Pennsylvania.
Buckeye Fire Equipment Co. is a manufacturer of line of handheld
and wheeled fire extinguishers, suppressing foam concentrates &
hardware, and kitchen suppression systems, with principal place of
business located at 110 Kings Road, Mountain, North Carolina.
Carrier Global Corporation is a heating, ventilation, and air
conditioning company based in Palm Beach Gardens, Florida.
Chemdesign Products, Inc. is a chemical toll manufacturing company
based in Marinette, Wisconsin.
Chemguard, Inc. is a manufacturer of fire suppression and specialty
chemicals, including AFFF, with principal place of business located
at One Stanton Street, Marinette, Wisconsin.
Chemicals, Inc. is a chemical manufacturing company based in
Baytown, Texas.
Chemours Company FC, LLC is a manufacturer of titanium
technologies, fluoroproducts and chemical solutions based in
Wilmington, Delaware.
Chubb Fire, Ltd is a provider of security and fire protection
systems based in United Kingdom.
Clariant Corp. is a specialty chemical company based in Charlotte,
North Carolina.
Corteva, Inc. is an American agricultural chemical and seed company
based in Wilmington, Delaware.
Deepwater Chemicals, Inc. is a producer of organic and inorganic
iodine derivatives based in Woodward, Oklahoma.
Du Pont De Nemours Inc., f/k/a DowDuPont Inc., is a chemical
company based in Wilmington, Delaware.
Dynax Corporation is a company that specializes in the production
of fluorochemicals based in Pound Ridge, New York.
E.I Dupont De Nemours & Co. is a provider of agriculture and
specialty products with principal place of business at 1007 Market
Street, Wilmington, Delaware.
Kidde-Fenwal, Inc. is a manufacturer of fire protection systems
based in Ashland, Massachusetts.
Kidde PLC is a manufacturer of fire safety products based in
Mebane, North Carolina.
Nation Ford Chemical Company is a manufacturer of specialty organic
chemicals based in Fort Mill, South Carolina.
National Foam, Inc. is a manufacturer of foam concentrate, foam
proportioning systems, fixed and portable foam firefighting
equipment, with principal place of business located at 350 East
Union Street, West Chester, Pennsylvania.
The Chemours Company is a manufacturer of agricultural chemicals
with principal place of business at 1007 Market Street, Wilmington,
Delaware.
Tyco Fire Products L.P., successor-in-interest to The Ansul
Company, is a manufacturer of water-based fire suppression system
components and ancillary building construction products, including
Ansul brand of AFFF, headquartered at One Stanton Street,
Marinette, Wisconsin.
United Technologies Corporation was an American multinational
conglomerate headquartered in Farmington, Connecticut. It merged
with the Raytheon Company in April 2020 to form Raytheon
Technologies.
UTC Fire & Security Americas Corporation, Inc., f/k/a GE
Interlogix, Inc., is a manufacturer of security and fire control
systems based in Bradenton, Florida. [BN]
The Plaintiff is represented by:
Richard Zgoda, Jr., Esq.
Steven D. Gacovino, Esq.
GACOVINO, LAKE & ASSOCIATES, P.C.
270 West Main Street
Sayville, NY 11782
Telephone: (631) 600-0000
Facsimile: (631) 543-5450
- and –
Gregory A. Cade, Esq.
Gary A. Anderson, Esq.
Kevin B. McKie, Esq.
ENVIRONMENTAL LITIGATION GROUP, P.C.
2160 Highland Avenue South
Birmingham, AL 35205
Telephone: (205) 328-9200
Facsimile: (205) 328-9456
ABC PHONES: Baggott FLSA Collective Action Gets Class Certification
-------------------------------------------------------------------
In the class action lawsuit captioned as JAMES BAGGOTT, on behalf
of himself and all others similarly situated, v. ABC PHONES OF
NORTH CAROLINA, INC., Case No. 5:19-cv-00504-BO (E.D.N.C.), the
Hon. Judge Terrence W. Boyle entered an order:
1. certifying case as a collective action pursuant to 29
U.S.C. section 216(b) of the Fair Labor Standards Act
(FLSA).
2. certifying the opt-out class defined as:
"all store managers and non-managers who worked for the
defendant in Wisconsin during the time period between
November 8, 2017 through the date of the Court's
preliminary approval of settlement, other than Alexander
Vang and Darren Koutnik, and who do not timely submit an
opt-out letter;"
3. preliminarily approving the Settlement Agreement;
4. setting a final approval hearing on May 24, 2021;
5. approving the class notice and Fair Labor Standards Act
(FLSA) Consent Form;
6. confirming and appointing Rust Consulting as the
Administrator to administer the terms of the Settlement
Agreement and to notify and pay the class members; and
7. directing the Administrator, no later than 30 days from
the entry of this Order, to complete the notice program to
the class by mailing the class notices;
ABC Phones of North Carolina, Inc. was founded in 1996. The
Company's line of business includes providing two-way
radiotelephone communication services such as cellular telephone
services.
A copy of the Court's order dated Feb. 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3d5IaIX at no extra charge.[CC]
ABIOMED INC: Bid to Nix Local 705 Teamsters' Class Suit Pending
---------------------------------------------------------------
Abiomed, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 4, 2021, for the
quarterly period ended December 31, 2020, that the motion to
dismiss the consolidated class action suit headed by Local 705
International Brotherhood of Teamsters Pension Fund, is pending.
On or about August 6, 2019, the Company received a securities class
action complaint filed on behalf of a single shareholder in the
U.S. District Court for the Southern District of New York, on
behalf of himself and persons or entities that purchased or
acquired the Company's securities between January 31, 2019 through
July 31, 2019.
On October 7, 2019, a similar purported class action complaint was
filed by a different shareholder on behalf of himself and persons
or entities that purchased or acquired the Company's securities
between November 1, 2018 and July 31, 2019.
Also, on October 7, 2019, four shareholders filed applications to
be appointed lead plaintiff and for their counsel to be appointed
lead counsel for the class.
Two of those shareholders also filed motions to consolidate the two
cases and two of the shareholders have withdrawn their applications
to be lead plaintiff.
The complaints allege that the Company violated Sections 10(b) and
20(a) of and Rule 10b-5 under the Exchange Act, in connection with
allegedly misleading disclosures made by the Company regarding its
financial condition and results of operations. The Company believes
that the allegations are without merit and plans to defend itself
vigorously.
On June 28, 2020, the Court issued an order consolidating the two
cases and appointed Local 705 International Brotherhood of
Teamsters Pension Fund as the lead plaintiff and the Labaton
Sucharow firm as lead counsel.
On September 17, 2020, the lead plaintiff filed an amended
complaint in which they proposed a new class period of May 3, 2018
to July 31, 2019.
Abiomed said, "As prescribed by a scheduling order, the Company
filed a motion to dismiss in November 2020. The Company does not
expect a decision on that motion until at least the first quarter
of fiscal year 2022."
Abiomed, Inc. is a provider of mechanical circulatory support
devices and offers a continuum of care in heart recovery to heart
failure patients. The Company develops, manufactures and markets
proprietary products that are designed to enable the heart to rest,
heal and recover by improving blood flow and/or performing the
pumping function of the heart. The Company's products are used in
the cardiac catheterization lab, or cath lab, by interventional
cardiologists and in the heart surgery suite by heart surgeons for
patients who are in need of hemodynamic support prophylactically or
emergently before, during or after angioplasty or heart surgery
procedures. The company is based on Danvers, Massachusetts.
ADVANCED HOUSE: Peterson Sues Over Unpaid Wages for House Managers
------------------------------------------------------------------
JACK PETERSON, individually and on behalf of all others similarly
situated, Plaintiff v. ADVANCED HOUSE SOBER LIVING LLC; CHRISTOPHER
RUDD; and DOES 1 to 25, inclusive, Defendants, Case No. 21STCV05151
(Cal. Super., Los Angeles Cty., February 9, 2021) is a class action
against the Defendants for violations of the California Labor Code
and the California Business & Professions Code including failure to
compensate for all hours worked, failure to pay minimum wages,
failure to pay overtime, failure to provide accurate itemized wage
statements, failure to pay wages owed every pay period, failure to
pay wages when employment ends, failure to maintain accurate
records, failure to give rest breaks, failure to give meal breaks,
and failure to reimburse business expenses.
The Plaintiff was employed as a house manager from May 2019 until
June 2020.
Advanced House Sober Living LLC is a health, wellness and fitness
company in Venice, California. [BN]
The Plaintiff is represented by:
Harout Messrelian, Esq.
MESSRELIAN LAW INC.
500 N. Central Ave., Suite 840
Glendale, CA 91203
Telephone: (818) 484-6531
Facsimile: (818) 956-1983
ADVANTAGE CHRYSLER: Toney FDCPA Suit Seeks Class Certification
--------------------------------------------------------------
In the class action lawsuit captioned as WILLIE TONEY, individually
and on behalf of all others similarly situated, v. ADVANTAGE
CHRYSLER-DODGE-JEEP, INC., a Florida corporation, SYNERGY MARKETING
ADVISORS, INC d/b/a SYNERGY RESOURCE ADVISORS, a foreign
corporation, and STRATICS NETWORKS, INC., a foreign corporation,
Case No. 6:20-cv-00182-WWB-EJK (M.D. Fla.), the Plaintiff asks the
Court to enter an order:
1. certifying a class and subclasses with respect to the
claims for violation of the Telephone Consumer Protection
Act (TCPA);
2. designating himself as class representative; and
3. designating his counsel as Class Counsel.
The Plaintiff moves to certify the following proposed
Class and Subclasses:
-- Class:
"all persons within the United States who during the
four years prior to the filing of this lawsuit (1) were
sent a prerecorded message (2) using software provided
by Stratics, and (3) where the prerecorded message
directed the individual to contact Defendant
Advantage";
-- Service Subclass:
"all persons within the United States who during the
four years prior to the filing of this lawsuit (1) were
sent a prerecorded message (2) using the software
provided by Stratics, (3) where the prerecorded message
directed the individual to contact the Defendant
Advantage, and (4) where the Defendant Advantage
exclusively obtained the individual's contact
information as a result of the individual servicing
their vehicle at Defendant Advantage's dealership and
not from Advantage's website or as a result of the
individual purchasing a vehicle from Advantage;"
-- Purchase Subclass:
"all persons within the United States who during the
four years prior to the filing of this lawsuit (1) were
sent a prerecorded message (2) using the software
provided by Stratics, (3) where the prerecorded message
directed the individual to contact the Defendant
Advantage, and (4) where the Defendant Advantage
obtained the individual's contact information because
of the individual purchasing a vehicle from Advantage
and not from Advantage's website;"
-- Website Subclass:
"all persons within the United States who during the
four years prior to the filing of this lawsuit (1) were
sent a prerecorded message (2) using the software
provided by Stratics, (3) where the prerecorded message
directed the individual to contact the Defendant
Advantage, and (4) Advantage obtained the individual's
contact information because of the individual inputting
their information on Advantage's website;" and
-- No Evidence Subclass:
"all persons within the United States who during the
four years prior to the filing of this lawsuit (1) were
sent a prerecorded message (2) using the software
provided by Stratics, (3) where the prerecorded message
directed the individual to contact the Defendant
Advantage, and (4) where the Defendant Advantage did
not obtain the individual's contact information as a
result of any of the following: (a) the individual
purchasing a vehicle from Advantage, (b) the individual
inputting their information on Advantage's website, or
(c) the individual servicing their vehicle at
Defendant Advantage's dealership."
The Plaintiff contends that Advantage caused tens of thousands of
prerecorded marketing messages to be sent to him and the putative
Class members, in a nearly identical manner, using identical
technology, and without Advantage obtaining the required written
consent from him or any of the putative Class members.
The Defendant Advantage -- a car dealership -- hired Synergy
Marketing Advisors, Inc. to send prerecorded messages advertising
Advantage's dealership. To carry out its task, Synergy utilized a
sub-vendor, YFFCO d/b/a PrimaryLens, and an individual named Joshua
Stocks. Mr. Stocks used technology provided by the Defendant
Stratics Networks, Inc., a Canadian company that provides
prerecorded message transmission services to various companies
throughout the U.S. The marketing prerecorded messages were sent to
numerous individuals without anyone first obtaining the
individuals' express written consent as required under the TCPA and
its implementing regulations, says the complaint.
Advantage is part of the Sullivan Automotive Group and is an
automotive retailer that sells and services new and used Honda
vehicles.
A copy of the Plaintiff's motion to certify class dated Feb. 4,
2020 is available from PacerMonitor.com at https://bit.ly/378WpsR
at no extra charge.[CC]
The Plaintiff is represented by:
Ignacio J. Hiraldo, Esq.
IJH LAW
1200 Brickell Ave Suite 1950
Miami, FL 33131
Telephone: (786) 496-4469
E-mail: ijhiraldo@ijhlaw.com
- and -
Manuel S. Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Boulevard, Suite 1400
Ft. Lauderdale, FL 33301
Telephone: (954) 400-4713
E-mail: mhiraldo@hiraldolaw.com
- and -
Scott Edelsberg, Esq.
EDELSBERG LAW, PA
19495 Biscayne Blvd No. 607
Aventura, FL 33180
Telephone: (305) 975-3320
E-mail: scott@edelsberglaw.com
- and -
Michael Eisenband, Esq.
EISENBAND LAW, P.A.
515 E. Las Olas Boulevard, Suite 120
Ft. Lauderdale, Fl 33301
Telephone: (954) 533-4092
E-mail: MEisenband@Eisenbandlaw.com
- and -
Andrew J. Shamis, Esq.
SHAMIS & GENTILE, P.A.
14 NE 1st Avenue, Suite 400
Miami, FL 33132
Telephone: (305) 479-2299
E-mail: ashamis@shamisgentile.com
ALLERGAN USA: Field Sues Over Breast Implants' Adverse Events
-------------------------------------------------------------
LUCY FIELD, individually and on behalf of all others similarly
situated, Plaintiff v. ALLERGAN USA, INC.; ALLERGAN, INC.; ALLERGAN
PLC; and ALLERGAN AUSTRALIA PTY, LTD., Defendants, Case No.
1:21-cv-00147-TSE-JFA (E.D. Va., February 10, 2021) is a class
action against the Defendants for strict liability, negligence,
unjust enrichment, breach of the implied warranty of
merchantability, negligent misrepresentation, and violations of the
Australian Consumer Law.
The case arises from the Defendants' manufacturing of defective
BIOCELL breast implants and failure to adequately warn patients,
medical professionals, and the Food and Drug Administration (FDA)
about the product's association to anaplastic large cell lymphoma
(BIA-ALCL), a deadly cancer of the immune system. In order to
conceal the true number of adverse event reports, Allergan
submitted reports with incorrect manufacturer names instead of
under the name Allergan. As a result, consumers, healthcare
professionals, and the FDA were unable to detect trends in
Allergan's products, depriving the market of the necessary
information to make an informed decision about whether Allergan's
products were safe and effective, the suit says.
Allergan USA, Inc. is a wholly owned subsidiary of Allergan plc,
with its principal place of business in New Jersey.
Allergan, Inc. is a wholly owned subsidiary of Allergan plc,
headquartered in Bridgewater Township, New Jersey.
Allergan plc is a pharmaceutical company based in Ireland.
Allergan Australia Pty, Ltd. was formerly a wholly owned subsidiary
of Allergan, Inc. with its principal place of business in Gordon,
New South Wales, Australia. [BN]
The Plaintiff is represented by:
Kristi C. Kelly, Esq.
Andrew J. Guzzo, Esq.
Casey Nash, Esq.
KELLY GUZZO, PLC
3925 Chain Bridge Road, Suite 202
Fairfax, VA 22030
Telephone: (703) 424-7572
Facsimile: (703) 591-0167
E-mail: kkelly@kellyguzzo.com
aguzzo@kellyguzzo.com
casey@kellyguzzo.com
- and –
Shanon J. Carson, Esq.
BERGER MONTAGUE PC
1818 Market St., Suite 3600
Philadelphia, PA 19103
Telephone: (215) 875-4656
Facsimile: (215) 875-4604
E-mail: scarson@bm.net
- and –
John G. Albanese, Esq.
BERGER MONTAGUE PC
43 SE Main Street, Suite 505
Minneapolis, MN 55414
Telephone: (612) 594-5999
Facsimile: (612) 584-4470
E-mail: jalbanese@bm.net
ALLSTATE FIRE: Court Dismisses 2nd Amended Complaint in Cody Suit
-----------------------------------------------------------------
In the case, ANDREA CODY, TRAEVION LOVE, BRITTANY BURK, and DANA
WHITEFIELD, individually and on behalf of all others similarly
situated, Plaintiffs, v. ALLSTATE FIRE AND CASUALTY INSURANCE
COMPANY and ALLSTATE COUNTY MUTUAL INSURANCE COMPANY, Defendants,
Civil Action No. 3:19-CV-1935-K (N.D. Tex.), Judge Ed Kinkeade of
the U.S. District Court for the Northern District of Texas, Dallas
Division, granted the Defendants' Second Amended Rule 12(b)(6)
Motion to Dismiss and Motion to Strike Class Allegations.
Plaintiffs Cody, Love, Burk, and Whitfield were insured under
separate "but materially identical" automobile polices issued by
Defendants Allstate Fire or Allstate County.
Under the Policy for Plaintiffs Cody, Burk, and Whitfield,
respectively, Defendant Allstate Fire provides coverage for "direct
and accidental loss to the covered auto" that results from
"collision with another object or by upset of that auto or trailer"
or for loss that is "not caused by collision" subject to the
relevant Declarations indicating such coverage. Plaintiff Love's
Policy provides that Defendant Allstate County "will pay for direct
and accidental loss to the covered auto and for loss caused by
collision" subject to the Declarations indicating such coverage.
The term "loss" is not defined under the Policy.
The Policy for Plaintiffs Cody, Burk, and Whitfield, respectively,
limits Defendant Allstate Fire's liability to "the actual cash
value of the property or damaged part of the property at the time
of the loss." Under Plaintiff Love's Policy, Defendant Allstate
County's liability is limited to the "actual cash value of the
stolen or damaged property." The term "actual cash value" is not
defined in the Policy nor does the Policy otherwise describe the
term.
The Plaintiffs each had "an accident" involving their respective
automobile that was covered by the Policy--Plaintiff Cody on Aug.
27, 2017, Plaintiff Love on Dec. 20, 2017, Plaintiff Burk on Nov.
12, 2018, and Plaintiff Whitfield on Aug. 28, 2017. Each Plaintiff
filed a claim with the Defendants for property damage and, in each
instance, the Defendants concluded that the automobile was a total
loss. The Defendants then determined the value of that vehicle and
subtracted the relevant deductible.
For Plaintiffs Cody and Love, the Defendants added an amount for
sales tax and also "DMV fee." Plaintiff Whitfield received an
additional amount for sales tax as well as a "license and transfer
fee." Plaintiff Burk received only the value on her total-loss
vehicle after Defendant also subtracted the "salvage-retain value."
The Plaintiffs dispute the valuation method the Defendants used in
calculating the actual cash value of their total-loss vehicles.
The Plaintiffs filed their Class Action Complaint in August 2019.
The Defendants filed a Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6). In response, the Plaintiffs filed an
Amended Class Action Complaint. The Defendants filed a Motion to
Dismiss the Amended Complaint.
Before the motion was fully briefed, the Fifth Circuit issued a
decision in Singleton v. Elephant Ins. Co., 953 F.3d 334 (5th Cir.
2020), which arguably impacted the Plaintiffs' case. The Court
ordered briefing from the parties as to the effect, if any, of the
Fifth Circuit decision on the instant case. The parties timely
filed their respective briefs.
In addition to their brief, the Plaintiffs also filed a Motion for
Leave to File a Second Amended Complaint which was fully briefed.
The Court granted the Plaintiffs leave to amend their complaint in
light of the Singleton opinion. The Plaintiffs filed their Second
Amended Class Action Complaint, asserting claims for declaratory
relief, breach of contract (based on two alternative theories), and
a violation of the Prompt Payment Act in the Texas Insurance Code.
The Defendants then filed the Motion that is currently before the
Court, arguing several grounds exist for dismissing the Plaintiffs'
claims. They contend generally that: The Plaintiffs' claims for
breach of contract and declaratory judgment have no basis in Texas
law; neither the Policy language nor Texas law require the
Defendants to utilize either of the Plaintiffs' valuation methods
to determine actual cash value of a total loss vehicle; the recent
Fifth Circuit opinion in Singleton specifically precludes the
Plaintiffs' breach of contract claim based on its Cost Approach;
the declaratory judgment claim is duplicative and should be
dismissed; the Plaintiffs' claim for a violation of the Prompt
Payment Act must also be dismissed as there is no viable breach of
contact claims; and, finally, it is facially apparent from the
Complaint that the Plaintiffs' proposed class is not ascertainable
and, therefore, should be dismissed. The Defendants also move to
strike the Plaintiffs' class allegations regarding the declaratory
judgment claim are not appropriate because the Plaintiffs primarily
seek individualized monetary damages.
The Plaintiffs respond that none of their claims are appropriate
for dismissal. First, they argue the Motion cannot be granted
because how "market value" (in reference to "actual cash value")
should be measured under the Policy is an issue the Court must
interpret. They also assert that "the amount of market value" of a
particular property is a fact question and, therefore, not
appropriate for determination at the motion to dismiss stage. The
Plaintiffs also argue at length that the Singleton opinion is not
applicable to this specific case and does not require dismissal of
either breach of contract claim.
However, if the Court determines Singleton does apply, the
Plaintiffs concede Count III [breach of contract under Cost
Approach] must be dismissed but also contend that "Count II [breach
of contract under Comparable Sales Approach] cannot be dismissed"
because Singleton clearly calls for the Comparable Sales Approach
to be used in calculating market value of vehicles. They assert
their Prompt Payment Act claim cannot be dismissed because their
breach of contract claims survive dismissal. Finally, the
Plaintiffs contend that their class allegations should not be
dismissed at this stage.
The Defendants reply that the Plaintiffs fail to address the
absence of any Texas law or other authority that requires
Defendants to use either the Cost Approach or Comparable Sales
Approach (or any specific method at all) in calculating "market
value" with respect to "actual cash value". Defendants argue again
that Singleton is applicable, noting that Plaintiffs failed to
distinguish this binding decision. Defendants also point out that
Plaintiffs did not address Defendants' Motion to Strike the Class
Allegations.
As to breach of contract claims, Judge Kinkeade concludes both of
the Plaintiffs' breach of contract claims must be dismissed for
failure to plead a claim upon which relief can be granted. First,
he finds that the Plaintiffs cannot get past the initial hurdle of
sufficiently pleading their breach of contract claim. The Court
has concluded that there is no requirement under the Policy or
Texas law that Defendants calculate ACV using the Comparable Sales
Approach; accordingly, there is no "fact issue on the question of
the market value of" the Plaintiffs' vehicles. Second, as pled by
the Plaintiffs, the breach of contract claim is not viable as a
matter of law. There is no Policy language requiring Comparable
Sales as the measurement of ACV or market value, and neither does
any Texas law mandate this method in calculating ACV.
The Plaintiffs allege the Defendants violated the Prompt Payment
Act in failing "to pay for the losses and/or to follow statutory
time guidelines for paying claims" under the relevant sections of
the Texas Insurance Code. Judge Kinkeade opines that an insurer is
liable for damages under the Prompt Payment Act only when the
insured establishes the insurer is liable for the claim and the
specified time to pay that claim has passed, citing Barbara Techs.
Corp. v. State Farm Lloyds, 589 S.W.3d 806, 813 (Tex. 2019). The
Court has concluded that Plaintiffs failed to state a claim for
breach of contract as a matter of law and so those claims must be
dismissed under Rule 12(b)(6). Because the Plaintiffs cannot
establish the predicate liability in order to recover damages under
the Prompt Payment Act, this claim must likewise be dismissed.
In their Motion, the Defendants argue the Plaintiffs' claim for
declaratory judgment must be dismissed because the declaratory
relief sought is duplicative of the Plaintiffs' breach of contract
claims. Judge Kinkeade finds that the Plaintiffs failed to
plausibly allege a claim for breach of contract or violation of the
Prompt Payment Act. There are no facts that permit the inference
of a current controversy between the Plaintiffs and the Defendants.
Because each of their substantive claims failed to state a cause
of action upon which relief can be granted, the Plaintiffs have no
underlying claim to which they can tether their claim for
declaratory judgment. Therefore, their claim for declaratory
judgment is dismissed.
Finally, in their Motion, the Defendants ask the Court (1) to
dismiss the Plaintiffs' class allegation because it is facially
apparent from the Complaint that the purported class is not
ascertainable and (2) to strike the class allegations as to the
declaratory relief claim because the primary relief sought is an
individualized award of monetary damage. The Plaintiffs respond
that it is premature to rule on the issue that the alleged class is
not ascertainable, especially where no discovery has taken place.
They did not respond to the Defendants' motion to strike. Because
none of the Plaintiffs' claims survive the Defendants' Motion to
Dismiss, Judge Kinkeade need not rule on the Defendants' Motion to
Strike the Class Allegations.
Judge Kinkeade concludes that the Plaintiffs have failed to state a
claim for breach of contract or violation of the Prompt Payment Act
as a matter of law; the Plaintiffs' claim for declaratory judgment
must be dismissed as there is no viable substantive claim and,
alternatively, he declines to exercise its discretion to determine
this claim. He, therefore, granted the Defendants' Motion to
Dismiss, and dismissed all of the Plaintiffs claims.
A full-text copy of the Court's Feb. 3, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/1uq0oixo from
Leagle.com.
ALLY FINANCIAL: Faces Clapp Suit Over Stock Market Manipulation
---------------------------------------------------------------
SABRINA CLAPP; and DENISE REDFIELD, individually and on behalf of
others similarly situated, Plaintiffs v. ALLY FINANCIAL INC.;
ALPACA SECURITIES LLC; CASH APP INVESTING LLC; SQUARE INC.; DOUGH
LLC; MORGAN STANLEY SMITH BARNEY LLC; E*TRADE SECURITIES LLC;
ETRADE FINANCIAL CORPORATION; ETRADE FINANCIAL HOLDINGS, LLC; ETORO
USA SECURITIES, INC.; FREETRADE, LTD.; INTERACTIVE BROKERS LLC; M1
FINANCE, LLC; OPEN TO THE PUBLIC INVESTING, INC.; ROBINHOOD
FINANCIAL, LLC; ROBINHOOD MARKETS, INC.; ROBINHOOD SECURITIES, LLC;
IG GROUP HOLDINGS PLC; TASTYWORKS, INC.; TD AMERITRADE, INC.; THE
CHARLES SCHWAB CORPORATION; CHARLES SCHWAB & CO. INC.; FF TRADE
REPUBLIC GROWTH, LLC; TRADING 212 LTD.; TRADING 212 UK LTD.; WEBULL
FINANCIAL LLC; FUMI HOLDINGS, INC.; STASH FINANCIAL, INC.; BARCLAYS
BANK PLC; CITADEL ENTERPRISE AMERICAS, LLC; CITADEL SECURITIES LLC;
MELVIN CAPITAL MANAGEMENT LP; SEQUOIA CAPITAL OPERATIONS LLC; APEX
CLEARING CORPORATION; THE DEPOSITORY TRUST & CLEARING CORPORATION,
Defendants, Case No. 3:21-cv-00896 (N.D. Cal., Feb. 4, 2021)
alleges violation of the Sherman Act.
The Plaintiff alleges in the complaint that on January 27, 2021,
after the close of the stock market and before the open of the the
next trading day, the Fund Defendants coordinated and planned
increased short volumes in anticipation of short calls on January
28, 2021.
Allegedly, the Brokerage Defendants, that operate through Websites
and mobile applications, disabled all buy features on their
platforms and thereby left the Retail Investors with no choice but
to sell or hold their rapidly dwindling stocks. The Brokerage
Defendants did so to ensure that the stock prices for the Relevant
Securities would go down in furtherance of the conspiracy. Other
Brokerage Defendants displayed loading graphics on the landing
pages for these Relevant Securities to prevent users from
purchasing any more Relevant Securities. Plaintiffs and Class
members, faced with an imminent decrease in the price of their
positions in the Relevant Securities due to the inability of Retail
Investors to purchase shares, were induced to sell their shares in
the Relevant Securities at a lower price than they otherwise would
have. Additionally, Class members that would have purchased more
stock in the Relevant Securities given the upward trend in price
could not do so, the suit says.
By doing so, the Defendants and their co-conspirators forced Retail
Investors to choose between selling the Relevant Securities at a
lower price or holding their rapidly declining positions in the
Relevant Securities. The Defendants did so to drive the price of
the Relevant Securities down. The Defendants and their
co-conspirators conspired to prevent the Retail investors from
buying further stock in order to mitigate the Fund Defendants'
exposure in their short positions. By forcing the Retail Investors
to sell their Relevant Securities at lower prices than they
otherwise would have, the Defendants artificially reduced the value
of the Relevant Securities that Retail Investors either sold or
held on to, added the suit.
Ally Financial Inc. operates as a financial holding company. The
Company offers automotive financial services. [BN]
The Plaintiffs are represented by:
Eric Lechtzin, Esq.
EDELSON LECHTZIN LLP
3 Terry Drive, Suite 205
Newtown, PA 18940
Telephone: (215) 867-2399
Facsimile: (267) 685-0676
E-mail: elechtzin@edelson-law.com
AMAZON.COM INC: Averts Employees' Class Action Over BLM Retaliation
-------------------------------------------------------------------
Daniel Plaks, writing for TipRanks, reports that Amazon and its
subsidiary Whole Foods have been cleared of wrongdoing by a US
federal judge for allegedly illegally punishing employees who chose
to show support for the Black Lives Matter (BLM) movement in
solidarity with their black colleagues by wearing BLM facemasks,
according to Reuters.
The class action, filed in July last year accused Whole Foods and
its parent Amazon (AMZN) of "disciplining employees for wearing
these masks" by sending them home without pay and even threatening
them with termination, Reuters reported.
The lawsuit read, "Whole Foods' selective enforcement of its dress
code in disciplining employees who wear apparel expressing support
for the Black Lives Matter movement constitutes unlawful
discrimination on the basis of race and on the basis of employees'
affiliation with and advocacy for Black employees. Whole Foods has
further unlawfully retaliated against its employees in violation of
Title VII for their opposition to its unlawful and discriminatory
practices."
According to the Reuters report, U.S. District Judge Allison
Burroughs disagreed and on Feb. 5 wrote in her judgement that "At
worst, they were selectively enforcing a dress code to suppress
certain speech in the workplace," adding, "However unappealing that
might be, it is not conduct made unlawful by Title VII."
According to Reuters, the judge encouraged the employees that if
they didn't like the companies' policies, they should try influence
a change in policy or perhaps even find somewhere else to work.
A spokesperson for Whole Foods and on behalf of parent Amazon
responded to the judge's decision saying that its dress code was
"facially neutral" and that the companies support the BLM movement.
(See Amazon stock analysis on TipRanks)
Jefferies analyst Brent Thill reiterated his Buy rating on Amazon
following the release of its better-than-expected Q4 financial
results and raised his price target to $4,000 from $3,800. This
implies upside potential of around 19% from current levels.
Thill believes that Amazon will be a primary beneficiary of a
permanent increase in e-commerce adoption and is confident that
Amazon can continue "printing upside to expectations" in the
upcoming three quarters despite tougher comps.
The rest of the Street is in line with Thill's outlook and gives
Amazon a Strong Buy consensus rating based on 30 unanimous Buy
recommendations. The average analyst price target of $4,106.14
suggests upside potential of more than 22% over the next 12
months.
Amazon receives a 9 out of 10 on TipRanks' Smart Score which
implies that the stock has strong potential to outperform analysts'
expectations. [GN]
AMAZON.COM INC: Class Action Against Firm, Whole Foods Dismissed
----------------------------------------------------------------
Amazon and its subsidiary Whole Foods have been cleared of
wrongdoing by a US federal judge for allegedly illegally punishing
employees who chose to show support for the Black Lives Matter
(BLM) movement in solidarity with their black colleagues by wearing
BLM facemasks, according to Reuters.
The class action, filed in July last year accused Whole Foods and
its parent Amazon (AMZN) of "disciplining employees for wearing
these masks" by sending them home without pay and even threatening
them with termination, Reuters reported.
The lawsuit read, "Whole Foods' selective enforcement of its dress
code in disciplining employees who wear apparel expressing support
for the Black Lives Matter movement constitutes unlawful
discrimination on the basis of race and on the basis of employees'
affiliation with and advocacy for Black employees. Whole Foods has
further unlawfully retaliated against its employees in violation of
Title VII for their opposition to its unlawful and discriminatory
practices."
According to the Reuters report, U.S. District Judge Allison
Burroughs disagreed and wrote in her judgement that "At worst, they
were selectively enforcing a dress code to suppress certain speech
in the workplace," adding, "However unappealing that might be, it
is not conduct made unlawful by Title VII."
According to Reuters, the judge encouraged the employees that if
they didn't like the companies' policies, they should try influence
a change in policy or perhaps even find somewhere else to work.
A spokesperson for Whole Foods and on behalf of parent Amazon
responded to the judge's decision saying that its dress code was
"facially neutral" and that the companies support the BLM movement.
(See Amazon stock analysis on TipRanks)
Jefferies analyst Brent Thill reiterated his Buy rating on Amazon
following the release of its better-than-expected Q4 financial
results and raised his price target to $4,000 from $3,800. This
implies upside potential of around 19% from current levels.
Thill believes that Amazon will be a primary beneficiary of a
permanent increase in e-commerce adoption and is confident that
Amazon can continue "printing upside to expectations" in the
upcoming three quarters despite tougher comps.
The rest of the Street is in line with Thill's outlook and gives
Amazon a Strong Buy consensus rating based on 30 unanimous Buy
recommendations. The average analyst price target of $4,106.14
suggests upside potential of more than 22% over the next 12
months.
Amazon receives a 9 out of 10 on TipRanks' Smart Score which
implies that the stock has strong potential to outperform analysts'
expectations. [GN]
AMERICAN MEADOWS: Williams Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against American Meadows Inc.
The case is styled as Milton Williams, on behalf of himself and all
other persons similarly situated v. American Meadows Inc., Case No.
1:21-cv-01267 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
American Meadows, founded in 1981 --
https://www.americanmeadows.com/ -- is one of the most respected
online retailers of wildflower seeds, perennial plants and flower
bulbs in North America.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
AMERICAN TOMBOY: Burbon Files ADA Suit in E.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against American Tomboy, Inc.
The case is styled as Luc Burbon and on behalf of all persons
similarly situated v. American Tomboy, Inc., Case No. 1:21-cv-00764
(E.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
American Tomboy creates unique, athletic, brand apparel for girls
in motion.[BN]
The Plaintiff is represented by:
Bradly Gurion Marks, Esq.
THE MARKS LAW FIRM PC
175 Varick Street 3rd Floor
New York, NY 10014
Phone: (646) 770-3775
Fax: (646) 867-2639
Email: bmarkslaw@gmail.com
APPCO GROUP: Federal Court Approves Class Action Settlement
-----------------------------------------------------------
Paul Forbes, Esq., Sean Selleck, Esq., and Kathleen Jeremy, Esq.,
of Baker McKenzie, in an article for Lexology, report that in the
recent decision of Bywater v Appco Group Australia Pty Ltd [2020]
FCA 1877, his Honour Justice Lee of the Federal Court approved a
proposed settlement of a class action commenced against Appco Group
Australia Pty Ltd. The decision highlights some of the persuasive
factors a Court will consider in determining whether to approve a
settlement where the proposed settlement sum is significantly less
than the asserted value of a group's claims.
Key takeaways
His Honour's decision provides guidance as to some of the key
factors which will prove determinative as to whether a proposed
class action settlement will be approved as being fair and
reasonable and in the interests of all group members in
circumstances where the claimant maintains that its claims have
good prospects but the proposed settlement sum is considerably less
than the asserted value of the group's claims (even where the
prospects and asserted value of those claims are disputed by the
respondent). In particular, his Honour's decision highlights that:
1. a respondent's available assets and the associated prospects
of recovery will be a persuasive factor as to whether a settlement
is likely to be approved;
2. a Court will wish to be satisfied that adequate
investigations have been undertaken to explore the asset position
of a respondent, even where there is no third party funding to do
so;
3. notwithstanding the usual practice of an applicant leading
the evidence for a settlement approval application, in
circumstances where the asset position of the respondent is a
relevant factor, it may be necessary for a respondent to lead
direct evidence as to its financial position;
4. a Court will be focused on ensuring that group members are
adequately informed as to a proposed settlement and any
investigations into a respondent's asset position, and may even
seek active engagement from the group as to the proposed course of
action; and
5. substantial support of a proposed settlement by the group is
likely to be necessary, notwithstanding that it may result in
minimal returns to group members.
In more detail
Background
By way of representative proceeding commenced in October 2016 under
Part IVA of the Federal Court of Australia Act 1976 ("FCA Act"), it
was alleged that Appco Group Australia Pty Ltd ("Appco") breached
various provisions of the Fair Work Act 2009, including by
allegedly falsely representing to group members that they were
independent contractors and not employees. Appco denied all the
allegations.
In August 2020, the parties executed a deed of settlement,
resulting in an application to the Court by the Applicant for
settlement approval pursuant to section 33V of the FCA Act
("Settlement Approval Application").
The application was supported by evidence from the solicitor for
the Applicant and group, to the effect that the agreed settlement
sum of $1.9 million was proposed on the basis that Appco's only
identifiable asset was approximately $2.1 million in cash. The
Applicant maintained that its claims, which it valued at $65
million, had good prospects of success.
Appco disputed both the Applicant's assessment of prospects and the
claimed quantum of the Applicant's claims, but nonetheless
supported the settlement. This was due to the fact that its
business had been considerably negatively impacted by the class
action and associated publicity, resulting in the significant
diminishment of the value of its business and of its recoverable
assets and, in circumstances where the proceedings were being
conducted in a "no cost" jurisdiction under the Fair Work Act, the
continued defence of the claim was likely to exhaust its remaining
assets, regardless of the outcome.
Following multiple listings before his Honour over the course of
the following months, his Honour ultimately made orders on 22
December 2020 approving the terms of the settlement.
Adjournment of Settlement Approval Application
Upon first return of the Settlement Approval Application in October
2020, his Honour indicated an initial disposition to refuse
settlement approval, but adjourned the application part-heard to
give the parties time to file further evidence in support of the
Settlement Approval Application. In particular, his Honour observed
that:
the claims of the Applicant and group members were asserted, by the
Applicant and group's legal representatives, to be in the range of
$65 million and to have good prospects of success (both of which
were denied by Appco), in the context of the proposed settlement
sum of $1.9 million, with a significant proposed distribution to
the litigation funder. This was resulting in what his Honour
described as a "derisory" return to group members; and while the
settlement was proposed in the context of Appco's only identifiable
asset being a relatively small amount of cash, there had been no
"proper investigation" by the solicitors for the Applicant and
group as to Appco's asset position, but rather there was only mere
"speculation" as to recovery prospects.
While his Honour emphasised that there was no suggestion that the
solicitors for Appco, in making representations as to Appco's
financial position, had acted in any other than an appropriate way
based on instructions, nor was there any suggestion that the
information was wrong or that Appco had done anything wrong, his
Honour emphasised the need for further investigation as to Appco's
financial position in the context of the proposed settlement sum
(relative to the asserted value of the claims) and the amount
already spent on the litigation. His Honour took this position
notwithstanding the litigation funder's expressed refusal to fund
further investigations or the continuation of the case should the
Settlement Approval Application be refused.
Further investigations and evidentiary material
Following the adjournment of the Settlement Approval Application,
further investigations were undertaken by the solicitors for the
Applicant, resulting in further evidentiary material being served
in support of the Settlement Approval Application. Candid affidavit
material was also served by Appco directly putting into evidence
and supporting the representations previously made in respect of
its financial position (including the identification of a small
amount of additional cash by Appco itself, resulting in a
commensurate augmentation of the proposed settlement sum). As noted
by his Honour in the decision ultimately approving the settlement,
the further investigations did not impeach any of the information
provided by Appco or identify any other assets that might be
realistically recoverable by the Applicant.
Notice to group members
Given his Honour's concern to ensure that group members had been
provided with a straightforward notice as to the further
investigations into Appco's assets, his Honour made an order at a
further listing on 30 November 2020 that a notice be sent to all
group members pursuant to section 33X(6) of the FCA. That notice,
which was distributed to group members in early December 2020
(amongst other things):
1. set out the proposed settlement amount, including the
proposed distributions as between the litigation funder,
solicitors, Applicant, and the group;
2. stated the concern held by the solicitors for the Applicant
and group that there was a "real risk, if the litigation [were] to
continue, that there would be no return to Group Members"; and
3. sought an indication from group members as to whether they
wished for the proposed settlement to be approved.
"Overwhelming support" for settlement approval
According to evidence affirmed by the solicitor for the Applicant
and group, a total of 130 responses were received in response to
the notice (from a total group size of approximately 1,172
individuals), of which:
1. 119 group members confirmed they wished the settlement be
approved;
2. 8 group members confirmed they wished the settlement be
approved, but made "adverse" comments regarding the settlement;
3. 2 group members requested to opt out of the proceeding; and
4. 1 group member responded in a way which was "initially
unclear", but which his Honour considered seemed to indicate "a
willingness to move ahead with the current settlement".
His Honour observed that "the overwhelming response to the Notice
is that the group members wish to proceed", which his Honour noted
"seem[ed] to . . . be a very powerful factor militating in favour
of approving the settlement".
His Honour also observed that "various improvements" had been made
to the proposed settlement, including by fixing administration
costs and the augmentation of the settlement sum (referred to
above).
Ultimately, his Honour held that "In circumstances where group
members overwhelmingly take the attitude they have, together with
the fact that [his Honour was] satisfied that further attempts to
augment any sum for settlement [would] likely be a case of throwing
good money after bad". His Honour concluded that the settlement
ought be approved, it being fair and reasonable and in the
interests of all group members.
Baker McKenzie acted for Appco Group Australia Pty Ltd in this
Federal Court Proceeding No. NSD 1857/2016. [GN]
APPLE INC: Seeks Ct. OK on Joint Stipulation Regarding Class Period
-------------------------------------------------------------------
In the class action lawsuit captioned as AMANDA FRLEKIN, AARON
GREGOROFF, SETH DOWLING, DEBRA SPEICHER; AND TAYLOR KALIN, on
behalf of themselves and all others similarly situated, v. APPLE
INC., Case No. 3:13-cv-03451-WHA (N.D. Cal.), the Parties ask the
Court to enter an order granting their joint stipulation regarding
class period as follows:
1. Class Members shall be permitted to seek recovery for time
spent participating in bag and technology checks pursuant
to Apple's bag and technology search policy through and
including December 17, 2015 and no later;
2. Apple's agreement to formally produce documents supporting
Apple's contention that it discontinued its bag and
technology check policy on December 17, 2015 shall have no
effect on the trial court's past or future orders
regarding discovery in this case, and such formal
production shall occur no later than one day after the
date the Court signs the proposed order accompanying this
Stipulation; and
3. Provided the Court signs the proposed Order accompanying
this Stipulation, the Plaintiffs' Motion for Order
Expanding Class Damages Period Pursuant to Parties'
Agreement may be deemed withdrawn.
Apple Inc. is an American multinational technology company
headquartered in Cupertino, California, that designs, develops, and
sells consumer electronics, computer software, and online
services.
A copy of the Parties' motion dated Feb. 3, 2020 is available from
PacerMonitor.com at https://bit.ly/2OkgV35 at no extra charge.[CC]
Attorneys for the Plaintiffs and the Class, are:
Kimberly A. Kralowec, Esq.
Kathleen Styles Rogers, Esq.
KRALOWEC LAW P.C.
750 Battery Street, Suite 700
San Francisco, CA 94111
Telephone: (415) 546-6800
Facsimile: (415) 546-6801
E-mail: kkralowec@kraloweclaw.com
krogers@kraloweclaw.com
- and -
Lee Shalov, Esq.
Brett Gallaway, Esq.
McLAUGHLIN & STERN, LLP
260 Madison Avenue
New York, NY 10016
Telephone: (212) 448-1100
Facsimile: (212) 448-0066
E-mail: lshalov@mclaughlinstern.com
bgallaway@mclaughlinstern.com
The Defendant is represented by:
Julie A. Dunne, Esq.
Matthew Riley, Esq.
Vani Parti, Esq.
Mandy Chan, Esq.
Andrea Ortega, Esq.
DLA PIPER LLP (US)
401 B. Street, Suite 1700
San Diego, CA 92101-4297
Telephone: (619) 699-2700
Facsimile: (619) 699-2701
E-mail: julie.dunne@us.dlapiper.com
matthew.riley@us.dlapiper.com
vani.parti@us.dlapiper.com
mandy.chan@us.dlapiper.com
andrea.ortega@us.dlapiper.com
ASTRAZENECA PLC: Faruqi & Faruqi Reminds of March 29 Deadline
-------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against AstraZeneca PLC
("AstraZeneca" or the "Company") (NASDAQ:AZN) and reminds investors
of the March 29, 2021 deadline to seek the role of lead plaintiff
in a federal securities class action that has been filed against
the Company.
If you suffered losses exceeding $50,000 investing in AstraZeneca
stock or options between May 21, 2020 and November 20, 2020 and
would like to discuss your legal rights, call Faruqi & Faruqi
partner Josh Wilson directly at 877-247-4292 or 212-983-9330 (Ext.
1310).
There is no cost or obligation to you.
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making
materially false and/or misleading statements and/or failing to
disclose the following adverse facts pertaining to the Company's
business, operations and financial condition, which were known to
or recklessly disregarded by defendants: (1) that initial clinical
trials for AZD1222 had suffered from a critical manufacturing
error, resulting in a substantial number of trial participants
receiving half the designed dosage; (2) that clinical trials for
AZD1222 consisted of a patchwork of disparate patient subgroups,
each with subtly different treatments, undermining the validity and
import of the conclusions that could be drawn from the clinical
data across these disparate patient populations; (3) that certain
clinical trial participants for AZD1222 had not received a second
dose at the designated time points, but rather received the second
dose up to several weeks after the dose had been scheduled to be
delivered according to the original trial design; (4) that
AstraZeneca had failed to include a substantial number of patients
over 55 years of age in its clinical trials for AZD1222, despite
this patient population being particularly vulnerable to the
effects of COVID-19 and thus a high priority target market for the
drug; (5) that AstraZeneca's clinical trials for AZD1222 had been
hamstrung by widespread flaws in design, errors in execution, and a
failure to properly coordinate and communicate with regulatory
authorities and the general public; (6) that, as a result of
(1)-(5) above, the clinical trials for AZD1222 had not been
conducted in accordance with industry best practices and acceptable
standards and the data and conclusions that could be derived from
the clinical trials was of limited utility; and (7) that, as a
result of (1)-(7) above, AZD1222 was unlikely to be approved for
commercial use in the United States in the short term, one of the
largest potential markets for the drug.
Specifically, on November 23, 2020, AstraZeneca issued a release
announcing the results of an interim analysis of its ongoing trial
for AZD1222. The announcement immediately began to raise questions
among analysts and industry experts. AstraZeneca disclosed that the
interim analysis involved two smaller scale trials in disparate
locales (the United Kingdom and Brazil) that, for unexplained
reasons, employed two different dosing regimens. One clinical trial
provided patients a half dose of AZD1222 followed by a full dose,
while the other trial provided two full doses. Counterintuitively,
AstraZeneca claimed that the half dosing regimen was substantially
more effective at preventing COVID-19 at 90% efficacy than the full
dosing regimen, which had achieved just 62% efficacy.
In the days that followed, additional revelations were made
regarding problems with AstraZeneca's AZD1222 clinical trials. For
example, the differing dosing regimens were revealed to be due to a
manufacturing error rather than trial design. Also, the
half-strength dose had not been tested in people over the age of 55
- despite the fact that this population was the most vulnerable to
COVID-19. Moreover, certain trial participants received their
second dose later than originally planned. U.S. regulators stated
that if AstraZeneca could not clearly explain the discrepancies in
its trial results, the results would most likely not be sufficient
for approval for commercial sale in the United States.
As negative news reports continued to reveal previously undisclosed
problems and flaws in AstraZeneca's clinical trials for AZD1222,
the price of AstraZeneca ADSs fell to $52.60 by market close on
November 25, 2020, a 4.88% decline over three trading days in
response to adverse news on abnormally high volume.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding AstraZeneca's conduct to contact the firm, including
whistleblowers, former employees, shareholders and others.
Attorney Advertising. The law firm responsible for this
advertisement is Faruqi & Faruqi, LLP ( ). Prior results do not
guarantee or predict a similar outcome with respect to any future
matter. We welcome the opportunity to discuss your particular case.
All communications will be treated in a confidential manner. [GN]
ATHENA ALLERGY: Paguada Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Athena Allergy, Inc.
The case is styled as Dilenia Paguada, on behalf of herself and all
others similarly situated v. Athena Allergy, Inc., Case No.
1:21-cv-01245 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Athena Allergy -- https://athenaallergy.com/ -- sells certified,
nickel-free products from certified nickel-free belts, buckles,
jewelry, and nickel test kits.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
BALBOA THRIFT: Bid to Compel Arbitration & Dismiss Camarillo OK'd
-----------------------------------------------------------------
In the lawsuit entitled VERONICA CAMARILLO, individually and on
behalf of others similarly situated, Plaintiff v. BALBOA THRIFT AND
LOAN ASSOCIATION, a California corporation, Defendant, Case No.
3:20-cv-00913-BEN-BLM (S.D. Cal.), the U.S. District Court for the
Southern District of California grants the Defendant's motion to
compel arbitration and dismiss.
Plaintiff Camarillo, individually and on behalf of others similarly
situated, brings the putative action against the Defendant, a
California corporation for violations of the Fair Credit Reporting
Act.
On February 21, 2015, the Plaintiff entered into a Retail
Installment Sale Contract--Simple Finance Charge (With Arbitration
Provision) ("RISC") with Yucca Valley Chrysler Center for the
purchase and financing of a 2014 Fiat 500 vehicle. The RISC
required the Plaintiff to make monthly payments of $395.07 until
February 23, 2021, as part of her agreement to finance the purchase
of her $16,900 Vehicle by agreeing to pay 19% interest for a total
amount owed at the end of the RISC term of $28,945.04. Page 2 of
the RISC contained a section entitled "Agreement to Arbitration."
The Plaintiff signed the Arbitration Provision.
On March 3, 2015, Yucca Valley assigned the RISC to the Defendant,
at which time the Defendant carried the loan to the Plaintiff in
the sum of $16,900.36. From April 10, 2015 to November 12, 2018,
or more than three years, the Plaintiff made payments on the loan.
However, according to the RISC, these payments were supposed to
continue through February 23, 2021, meaning the Plaintiff still
owed about 27 months of payment when she ceased making payments in
November 2018.
In January 2019, the Plaintiff voluntarily surrendered the Vehicle
to the Defendant. She alleges that by surrendering the Vehicle,
her "account" with the Defendant closed, and she no longer owed a
balance due.
On April 5, 2019, the Vehicle was sold at a private sale. Shortly
thereafter, on April 23, 2019, the Defendant sent a Notice of
Deficiency and Demand for Payment to the Plaintiff, notifying her
that she owed a deficiency balance of $10,674.96, which represented
the balance due after the Defendant had credited the proceeds from
the sale of the Vehicle to the Plaintiff's account.
On May 10, 2019, the Plaintiff sent the Defendant a letter
acknowledging receipt of its notice but claiming the Vehicle had
been inoperable since December 6, 2016, so she stopped making
payments because she was no longer able to afford to continue to
put money into repairs while also making payments on the loan.
On July 29, 2019, the Defendant "pulled" her Experian credit
report. When the Plaintiff reviewed her July 31, 2019 credit
report, she discovered this unauthorized "hard" inquiry. On
September 17, 2019, the Defendant filed a small claims complaint
against the Plaintiff.
On May 15, 2020, the Plaintiff filed the lawsuit against the
Defendant, alleging one claim for relief for violation of the FCRA.
On May 29, 2020, she served the Defendant by substituted service,
meaning a responsive pleading was due by June 19, 2020.
Before the Court is the Defendant's Motion to Compel Arbitration
and Dismiss the Action, or Alternatively, Stay the Action Pending
Arbitration. The motion was submitted on the papers without oral
argument pursuant to Civil Local Rule 7.1(d)(1) and Rule 78(b) of
the Federal Rules of Civil Procedure.
Discussion
The Defendant argues that the Court should compel arbitration
because the Plaintiff signed a RISC that included an arbitration
provision, which covers her federal claim arising under the FCRA.
The Plaintiff responds that her FCRA claim arises from the
Defendant's unlawful request and review of a credit report, not the
sale of the Vehicle, and as such, her claim is not subject to
arbitration. She further contends that even if Defendant relies on
an ostensible outstanding debt owed on the Vehicle as justification
for pulling the credit report, the Defendant failed to prove such a
debt exists. As a result, the Defendant fails to show the
resolution of the Plaintiff's FCRA claim requires the Court to rely
on or refer to the RISC, so the Defendant has not carried its
burden of showing a valid agreement to arbitrate the dispute at
issue, and the Court should deny the motion.
In response, the Defendant argues that FCRA's claim necessarily
implicates the parties' relationship because if the Defendant
qualifies as a creditor of the Plaintiff, the FCRA authorizes its
act of pulling her credit report as a matter of law. Because the
Arbitration Provision requires arbitration of any dispute arising
out of the parties' relationship, the Defendant contends the Court
must order the parties to arbitration. The Defendant also contends
in its Reply Brief that even the matter of whether the parties'
dispute falls within the scope of the Arbitration Provision is
subject to determination by the arbitrator, not the Court.
District Judge Roger T. Benitez notes that the Plaintiff's dispute
with the Defendant arises out of a statute (the FCRA) and exists
between herself and the original lender's assignee, the Defendant,
and relates to the resulting creditor-debtor relationship arising
out of the RISC. As such, the Judge finds the Arbitration Provision
in the RISC at constitutes a valid agreement to arbitrate and is
unpersuaded by the Plaintiff's arguments that the Arbitration
Provision is unconscionable.
In the case, the Defendant argues that in order for the Court to
grant its Motion, it need only "assert: (1) the existence of a
dispute between the parties; (2) a written agreement that includes
an arbitration provision purporting to cover the dispute; (3)
interstate or foreign commerce; and (4) the opposing party's
failure or refusal to arbitrate the dispute." The Plaintiff
responds that the "Defendant's motion should be denied because: (a)
Plaintiff's FCRA claim does not arise out of or related [sic] to
the parties' former purchase agreement" and "(b) expanding the
scope of the arbitration to include the FCRA claims would be
unconscionable." The Court finds the RISC requires the parties to
arbitrate their dispute, including the gateway issue of whether the
Arbitration Provision covers the dispute at issue.
Judge Benitez notes that in thecase, neither party contends that
(1) they lacked the capability to contract, (2) the RISC or
Arbitration Provision lacked a lawful object, or (3) the RISC or
Arbitration Provision lacked consideration. Rather, as part of her
argument that there is no valid agreement to arbitrate, the
Plaintiff advances two arguments: First, she argues that her FCRA
claim does not arise out of the alleged relationship between the
parties, and is, therefore, not covered by the Arbitration
Provision. Second, the Plaintiff contends that expanding the scope
of the arbitration agreement to add the FCRA claim that arose after
the account was closed, and the Vehicle was surrendered would be
unconscionable.
Because the first argument predominantly pertains to whether the
Plaintiff's claim falls within the scope of the Arbitration
Provision rather than whether the agreement itself is valid, the
Court defers addressing that issue until it addresses whether the
Plaintiff's claim is covered by the Arbitration Provision.
As to mutual consent, the Plaintiff argues somewhat paradoxically
not that the RISC or its Arbitration Provision are unconscionable
or that she did not consent to their terms, but that if the Court
interprets them as covering the FCRA claim, it would be
unconscionable. Thus, the Plaintiff contends that the Defendant has
failed to show a valid agreement to arbitration. However, the Court
finds the Plaintiff fails to explain how or why the RISC does not
constitute a valid agreement to arbitrate.
Judge Benitez concludes that the Arbitration Provision is not
unconscionable, the parties mutually consented to arbitration and
the Arbitration Provision covers the Plaintiff's FCRA claim.
Here, no set of facts could avoid that the gateway issues of
arbitration must be determined by the arbitrator, and even if the
arbitrator determined the Plaintiff's FCRA claim was not subject to
the Arbitration Provision, the Court finds the RISC in conjunction
with the law prevent the Plaintiff from stating a plausible claim
for relief. Because the Court has dismissed the sole claim in this
case, the Defendant's request for a stay is denied as moot.
The Plaintiff objects to the Supplemental Declaration of Christine
Hatfield and Exhibits C through G, which were not attached to the
Defendant's the original motion. She argues that because she did
not have the opportunity to review the exhibits and address them
before the Court, they should not be considered by the Court and
should be stricken from the record. As stated, the Plaintiff does
not contend the new evidence cannot be authenticated, lacks
foundation, is irrelevant, or represents hearsay evidence.
The Court finds the exhibits to which the Plaintiff objects were
produced in response to the Plaintiff's declaration in which she
denied owing a deficiency balance. Further, given the Court's
application of a "summary judgment type" standard, as well as the
incorporation by reference doctrine's mandate to consider documents
essential to the plaintiff's claims so as to prevent the plaintiff
from defeating a motion to dismiss by failing to attach relevant
evidence, the Court finds such evidence appropriate for
determination. That being said, although the Court considered this
evidence, such evidence was not dispositive to the Court's ultimate
decision, and as such, neither prejudiced the Defendant nor changed
the outcome of the order.
The Defendant requests that the Court takes judicial notice of its
small claims court case. Rule 201(b) of the Federal Rules of
Evidence allows courts, at any stage of proceeding, to take
judicial notice of (1) facts not subject to reasonable dispute and
"generally known within the trial court's territorial jurisdiction"
and (2) adjudicative facts, which "can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned." As a judicial record, the Small Claims Complaint is an
appropriate item for judicial notice. As such, the Court grants the
Defendant's Request for Judicial Notice.
For these reasons, the Court rules as follows:
1. Defendant's Motion to Compel Arbitration is granted;
2. Defendant's Motion to Dismiss is granted with prejudice;
3. Defendant's Motion to Stay is denied as moot;
4. Plaintiff's Evidentiary Objections are overruled;
5. Defendant's Request for Judicial Notice is granted; and
6. The Clerk of the Court is directed to close the case.
A full-text copy of the Court's Order dated Feb. 4, 2021, is
available at https://tinyurl.com/5785a9yb from Leagle.com.
BANK OF AMERICA: EDD Cardholders Sues Over Unemployment Insurance
-----------------------------------------------------------------
Christopher Mosson, on behalf of himself and all others similarly
situated v. BANK OF AMERICA, N.A. Case No. 3:21-cv-00743-JCS (N.D.
Cal., Jan. 29, 2021) alleges claims against Bank of America
relating to the company's administration of California unemployment
insurance and other benefits, pursuant to the Unfair Competition
Law, the Consumer Privacy Act, and the Electric Funds Transfer
Act.
According to the complaint, Bank of America, has an exclusive
contract to administer unemployment benefits in California. In
administering these benefits, Bank of America has been either
unwilling or unable to stop criminals from breaching Bank of
America's systems and controls prevent the theft of Employment
Development Department (EDD) benefits from EDD benefits recipients
with a Bank of America EDD prepaid debit card (an EDD cardholder).
The Plaintiff contends that Bank of America failed to act in
accordance with industry security standards which require securing
the private financial information of EDD cardholders and accounts,
and by issuing EDD cards with "EMV chips," rather than issuing
cards with only outdated and vulnerable "magnetic stripe"
technology.
Mr. Mosson was a victim of Bank of America’s failure to protect
their client's EDD Benefits and failure to provide proper
resolution to provide support. Mosson resides in Oakland,
California. He is a sound, lights and video professional, providing
support and assistance to venues hosting large events such as trade
shows, concerts or conventions. This industry has been decimated by
the COVID-19 pandemic making large gatherings unsafe and unlawful.
As a result, he has been unable to work since last spring.
Bank of America operates as a bank. The Bank offers saving and
current account, investment and financial services, online banking,
and mortgage and non-mortgage loan facilities, as well as issues
credit card and business loans.[BN]
The Plaintiff is represented by:
P. Terry Anderlini, Esq.
Joseph M. Goethals, Esq.
Jackson D. Morgus, Esq.
ANDERLINI & MCSWEENEY LLP
66 Bovet Road, Suite 285
San Mateo CA 94402
Telephone: (650) 212-0001
Facsimile: (650) 212-0081
E-mail: tanderlini@amlawoffice.com
BANK OF AMERICA: Faces Class Action Over EDD Debit Card Hacking
---------------------------------------------------------------
Kenny Choi and Abigail Sterling, writing for KPIX, report that the
unemployment debit card accounts of tens of thousands of
Californians have been hacked and frozen. KPIX has received e-mails
from more than 300 victims since last October when we first exposed
the massive hacks.
We are now learning that Bank of America, which has the exclusive
contract to handle the funds for the state Employment Development
Department, is facing yet another class-action lawsuit.
"I didn't think this was possible. Like my stomach, my heart just
dropped into my stomach and I felt, like, so shocked," said Roland
Oosthuizen. That was his reaction when he logged into his Bank of
America EDD debit card account last September. "My account had been
drained of $5,000 from the previous five days," Oosthuizen said.
His debit card had been hacked at various ATMs around town. He and
his mother Rosemary Mathews spent hours on the phone to file a
claim.
"That very first day I was on the phone seven hours and I am not
kidding," Mathews said.
Imagine her surprise two weeks later when she discovered her card
had been hacked as well, for a thousand dollars. "It was really
scary. I don't want to cry about this but it was my rent money and
I didn't have it," Mathews said.
Mother and son say the worst of it was the identical letters they
received from the bank saying their claims were closed with no
money back. It's the same thing KPIX heard from more than 300
people who reached out with similar stories.
Most had their EDD Bank of America debit cards hacked at ATMs far
from where they live. Others' accounts were hijacked, taken over by
fraudsters who routed the money to their own accounts.
"Someone had come into our account, stole our identity, changed our
bank routing information, put in their own bank and routing
information, wiped me of $7,500," said Michelle Barrionuevo
Mazzini.
Many ended up having their accounts frozen.
"I had to verify my identity with EDD and I did so and it's been
over a month and Bank of America still won't unfreeze my account at
this time," said Andreea Puzderri.
Many say they submitted all the evidence needed to prove their
identity.
"I've sent them my lease agreement with my identity, my W-2s, my
pay stubs, everything that supports my claim and they still choose
to arbitrarily hold on to nearly $5,000," said Julian Cardenas.
"They tell me you have to verify your identification again . . .
I'm not doing that, I did that, that's done!" exclaimed Brandy
Allen.
One common experience everyone mentioned: getting the runaround.
"I have called them back and forth and, like everybody else does,
they direct me to EDD, EDD directs me to them and I'm told
something different every time," said Erin Haben.
"Same thing as everybody else. Phone calls back and forth. EDD,
Bank of America, identification verification, dah, dah, dah,"
Brandy Allen said.
"One department tells you one thing, the other department tells you
the exact contradicting answer and they treat you like you are the
one that stole the money!" said Terri Schaffer.
We wanted to get their reaction to some statements from a Bank of
America executive, Faiz Ahmad, who was called on the carpet for the
first time by lawmakers in Sacramento and who said: "We've added
thousands of agents to our various call centers to ensure that
claimants received the same treatment as any other Bank of America
customer."
All 56 people on our group zoom interview told us that's not true.
Then we showed them another clip from Ahmad in which he claimed
"The wait times at our call centers are one minute with the tail
being between one and five minutes."
Again, our interviewees told us in unison that is absolutely not
true.
"It's ridiculous. The minute that they hear you're (calling about)
EDD, you're a second-class citizen," said Terri Schaffer.
"It's very sad that an officer of such a great institution has such
little knowledge of what is going on in his own company," said Luis
Harbottle.
Several told us they did get their money back but only after
interviews with KPIX and CBS This Morning were broadcast.
"I'm really grateful. It does feel hopeless at times but, you know,
we just have to keep pushing forward," said Sandra Sanchez.
Others got empty promises: "I received a letter saying that 'we
issued a temporary credit for the amount that's been lost' but my
account is still frozen so I don't have access to this account,"
said Miki Williams.
Most in the group we interviewed have been waiting three to four
months, some even longer.
"It's been a year. It's still under investigation so I kind of lost
hope, you know," said David Garcia.
Lost hope and lost trust. "These cards are unsecured. No I don't
want this card, get rid of the cards," said Greg Dodd.
FAQs on Bank of America's website clearly say: "The Bank of America
'zero liability' policy protects you against fraudulent
transactions."
"Zero liability to me means zero liability," said Adam McNeile, an
attorney with the law firm Kemnitzer, Barron and Krieg who
represents Margaret and Roland in a class-action complaint against
Bank of America that alleges, among other things, breach of
contract or closing claims without investigating and failing to
provide provisional credit.
"With Rosemary and Roland, the letters were dated . . . two days
after they opened the fraud claims and there's simply no way that
Bank of America could have adequately investigated these fraud
claims before closing them," McNeile said.
The lawsuit also alleges negligence for issuing debit cards without
security chip technology.
"If Bank of america had put chips onto its cards then it would have
been impossible for fraudsters to duplicate the cards and then
withdraw money from ATMs, including Bank of America ATMs," McNeile
said.
As for Roland Oosthuizen, he ended up getting his $5,000 back, the
day after filing the lawsuit.
"I don't think it was a coincidence," Oosthuizen said.
Rosemary Mathews is still waiting to get her $1,000 back.
"This is our income. I mean, there are people worse than me. I'm
sure people have gone bankrupt, have lost their houses, been
evicted. It's just not right and I didn't even care if I didn't get
all my money back or whatever. I just felt that Bank of America
needed to be held accountable," Mathews said.
Speaking with our group, we noticed that some people are beginning
to get provisional credit. We don't know if it's a trend but, if it
is, that's a good sign that Bank of America is feeling the
pressure.
Bank of America statement (Bill Halldin, Spokesperson)
As California's unemployment program faces billions of dollars in
fraud, Bank of America is working every day with the state to
prevent criminals from getting money and ensuring legitimate
recipients receive their benefits.
We have added thousands of agents to answer phone calls and
investigate claims for the areas of the program we are responsible
for and, as a result, our average wait time for callers has dropped
dramatically. While the vast majority of unemployment fraud is
committed by those filing false applications, when fraudulent
transactions occur on benefit cards we review those claims and
restore money to legitimate recipients. [GN]
BANK OF AMERICA: Fails to Secure EDD Account Info, Cajas Alleges
----------------------------------------------------------------
CLARA CAJAS, on behalf of herself and all others similarly situated
v. BANK OF AMERICA, N.A., and DOES 1-20, inclusive, Case No.
3:21-cv-00869 (N.D. Cal., Feb. 3, 2021) alleges that Bank of
America's has failed to store or transfer California Employment
Development Department (EDD) cardholder and account information in
a secure manner, resulting in a massive security breach that has
resulted in millions of dollars stolen from EDD through
unauthorized transactions.
According to the complaint, some EDD cardholders who have had money
stolen from their EDD account through unauthorized transactions
report never having used their EDD card. Such unauthorized
transactions could only have occurred if Bank of America failed to
store or transfer EDD cardholder and account information in a
secure manner.
Despite the critical importance of EDD benefits, the financial
institution with the exclusive contract to administer them -- Bank
of America -- is either unwilling or unable to stop criminals from
breaching Bank of America's systems and controls, and from
siphoning off millions of dollars of EDD benefits one account at a
time. Day after day, there are new stories of yet another EDD
benefits recipient with a Bank of America EDD prepaid debit card
(an "EDD cardholder") who went to use their card only to discover
that all the money in their Bank of America EDD account ("EDD
account") -- oftentimes, the only money that they had to survive --
was suddenly gone, says the complaint.
The Plaintiff contends that by failing to safeguard state benefits
from fraud, failing to detect the fraud as it was happening, and
failing so spectacularly at resolving the issues caused by these
failures, Bank of America has violated the California Consumer
Privacy Act, the California's Unfair Competition Law, and
Regulation E of the federal Electronic Funds Transfer Act; has
breached its contract with EDD cardholders; has negligently failed
to warn EDD cardholders about the risks associated with its EDD
cards and accounts; and has negligently performed its contract with
the California EDD, among other violations of law. Bank of
America's unlawful conduct has resulted in significant harm to
recipients of EDD benefits, depriving them of their financial
lifeline in the midst of a pandemic and full-blown economic
crisis.
EDD issues a variety of benefits to California residents, including
but not limited to unemployment insurance benefits, disability
insurance benefits, paid family leave benefits, 22 pandemic
unemployment assistance benefits, and pandemic emergency
unemployment compensation benefits (collectively, "EDD benefits").
In 2010, the Defendant entered into an exclusive contract with
California EDD to issue debit cards through which individuals
entitled to EDD benefits could access their funds, replacing
distribution of EDD benefits through paper checks.
Clara Cajas is a person residing in California. She is a registered
dental assistant who works as an instructor. She found her hours at
work reduced a few months prior to and then found herself out of
work during the Covid-19 pandemic. She applied for and received EDD
unemployment benefits; soon thereafter, she received a Bank of
America EDD Visa debit card with a magnetic stripe (no EMV chip) to
access her benefits; she was then the victim of unauthorized
transactions on her card (twice); and despite its "Zero Liability"
policy and Plaintiff's repeated requests for help, Bank of America
has been either unwilling or unable to restore the missing funds to
her account.
Bank of America is one of the largest banking associations in the
United States.[BN]
The Plaintiff is represented by:
Mary E. Alexander, Esq.
Brendan D.S. Way, Esq.
Arin R. Scapa, Esq.
Catalina S. Munoz, Esq.
MARY ALEXANDER & ASSOCIATES, P.C.
44 Montgomery Street, Suite 1303
San Francisco, CA 94104
Telephone: (415) 433-4440
Facsimile: (415) 433-5440
E-mail: malexander@maryalexanderlaw.com
bway@maryalexanderlaw.com
ascapa@maryalexanderlaw.com
cmunoz@maryalexanderlaw.com
BANK OF AMERICA: Jobless Workers Are Losing Benefits to Scammers
----------------------------------------------------------------
Mallory Sofastaii, writing for WMAR-2 News, reports that jobless
workers are losing their unemployment insurance benefits to
scammers.
WMAR-2 News Mallory Sofastaii first reported on these incidents in
October. Dozens of claimants have since reported similar fraudulent
activity.
"A thousand dollars was taken out of my account," said Donna
Hooper.
"On or about November 6 or 7, my debit card was hacked," said
Vincent Trakney.
Glenn Cooper realized $1,000 had been stolen from his account when
he was buying groceries and his debit card was declined.
"I feel like we're just stuck, we have no money right now," said
Jessi Cooper, Glenn's wife.
UI debit cards lack certain security features
Matt Kelley was also surprised to see several withdrawals from his
account when his Bank of America unemployment insurance debit card
had been in his possession the entire time.
"Three withdrawals for $900 taken out across various ATMs in
Maryland," said Kelley.
Bank of America knows fraud is an issue, however, claimants aren't
being provided with the same protections as regular bank
customers.
Maryland unemployment insurance claimants are sent swipe cards,
while other bank customers are issued cards with a chip, an "added
layer of security," according to Bank of America's website.
In addition to losing these crucial benefits, claimants accounts
are frozen. It often takes weeks for new cards to be issued, and in
many cases, claims filed to recoup the stolen funds are denied by
Bank of America.
"How could you dismiss that when someone is on unemployment and
needs to be financially sound as they possibly can?" asked Hooper.
A bank spokesperson told Sofastaii it's harder to identify fraud
with claimants cards because there isn't an established spending
and banking history like there is with other bank customers.
"The investigation was actually closed the day after I initiated
the claim, so they're not even investigating," said Trakney.
"I can't get a straight answer from anybody let alone get my money
back, which we need," Kelley said.
Bank of America has said they've been in discussions with Maryland
about options for card technology. However, there's no guarantee a
chip would protect against this current fraud pattern.
Bill Sieglein, an intelligence and cybersecurity expert, said chip
cards would go a long way in preventing fraud.
"That's the thing about a chip is it's really hard to recreate.
With a magnetic stripe, it's just so easy to replicate. I mean, if
I can capture one swipe almost any place, I could recreate your
card physically. The difficult part is I have to get your pin,"
Sieglein said.
In an interview on December 11, Sofastaii asked Maryland Secretary
of Labor Tiffany Robinson about the security vulnerability.
"Can you explain why UI debit cards don't have chip technology?,"
asked Sofastaii.
"That would be a question for Bank of America, our partner," said
Robinson.
Sofastaii asked Robinson again about fraud involving Bank of
America debit cards.
"Besides just forwarding it to Bank of America, will there be a
point where you have a conversation about how to make these cards
more secure so these claimants keep their benefits?" asked
Sofastaii.
"We are on calls with Bank of America every single week for lots of
different reasons. They are a good partner. We have asked for a lot
of additional steps and some of those are things Bank of America is
working on and some of those are things we're told they're not able
to do, so really that's a direct question for Bank of America,"
said Robinson.
Bank of America did not respond to Sofastaii's request for an
interview.
In an email, a spokesperson wrote:
"We continually work to prevent fraud and use a number of tools to
achieve that goal. We do not publicly disclose those efforts."
- Bill Halldin, Bank of America spokesman
"It's likely they've done the math and they've said if we issue
chip cards to all these people, it's very expensive. Chip cards are
not cheap. And I'm issuing a card where we're going to load $600 a
month for a couple of months or $300 a month for a couple of
months, and they might not even be a customer of our bank they're
just doing this for this, so it's not worth our efforts to do that.
It sounds callous, but it is just business, right?" said Sieglein.
In the absence of chip cards, Sieglein said there are other things
the bank can do.
"If Bank of America or any issuing bank turns up their fraud
protection, they would've caught this. Gheez, why is an ATM
withdrawal in Florida happening on a card that was issued to a
Maryland resident?," said Sieglein.
Claimants feel like the bank is choosing its bottom line over
protecting the money they need to pay their rent and feed their
families.
"It does feel like hey, me and my family were the victim of
something here and you guys are further victimizing us. And on top
of not giving us back the $2,800, you've now frozen my accounts so
I can't get any of my other unemployment payments," Kelley said.
"The state of Maryland is a customer, and we certainly are
customers of the state of Maryland, so I think it's a horrible
response," said Hooper.
"I feel like I've been treated like a criminal for somebody that
did something to me," said Trakney.
A spokesperson with Bank of America said if a fraud victim's claim
is denied, to ask the bank to reconsider.
"In instances where we deny a claim, we encourage people who
disagree with our decision to ask for reconsideration. We take any
new information or further identity verification from the account
holder, and if it addresses our concerns we will credit the
customer's account." - Bill Halldin, Bank of America spokesman
Sieglein added that direct deposit could potentially cut down on
some of this fraud, however, Maryland is one of only three states
that doesn't offer direct deposit without issuing a debit card
first. In a news conference, lawmakers said they're working to
ensure that people can receive their unemployment benefits through
direct deposit and or a paper check.
In California, there's a class action lawsuit claiming Bank of
America failed to stop scammers from stealing money off
unemployment insurance debit cards of struggling workers, including
never securing the cards with chip technology. [GN]
BAYER CROPSCIENCE: Lex Sues Over Monopoly of Crop Inputs Market
---------------------------------------------------------------
CHARLES LEX v. BAYER CROPSCIENCE LP; BAYER CROPSCIENCE, INC.;
CORTEVA INC.; CARGILL INCORPORATED; BASF CORPORATION; SYNGENTA
CORPORATION; WINFIELD SOLUTIONS, LLC; UNIVAR SOLUTIONS, INC.;
FEDERATED CO-OPERATIVES LTD.; CHS INC.; NUTRIEN AG SOLUTIONS INC.;
GROWMARK INC.; SIMPLOT AB RETAIL SUB, INC.; AND TENKOZ INC., Case
No. 3:21-cv-00122 (S.D. Ill., Feb. 2, 2021) is brought on behalf of
the Plaintiff and on behalf of the classes consisting of persons or
entities in the United States, including its territories, that, at
least as early as January 1, 2014 and continuing through the
present (the Class Period), purchased from a Defendant a Crop
Input.
The Plaintiff brings this action for treble damages under the
antitrust laws of the United States against the Defendants.
The market for "Crop Inputs" -- seeds and crop protection chemicals
such as fungicides, herbicides, and insecticides --used by American
farmers is one of the largest markets in the world with annual
sales in excess of $65 billion.
This market is dominated by:
(1) four major manufacturers, Defendants Bayer CropScience
Incorporated ("Bayer"), Corteva Incorporated ("Corteva"),
Syngenta Corporation ("Syngenta"), and BASF Corporation
("BASF"), (collectively, the "Manufacturer Defendants")
(2) three large wholesalers, Defendants Cargill Incorporated
("Cargill"), Winfield Solutions, LLC ("Winfield"), Univar
Solutions, Incorporated ("Univar") (collectively the
"Wholesaler Defendants"), that control the distribution
of Crop Inputs to farmers; and
(3) retailers, including Defendants CHS Incorporated ("CHS"),
Nutrien Ag Solutions Incorporated ("Nutrien"), GROWMARK,
Incorporated ("Growmark"), Simplot AB Retail Sub,
Incorporated ("Simplot"), Tenkoz Incorporated ("Tenkoz"),
and Federated Co-operatives Limited ("Federated")
(collectively the "Retailer Defendants").
Historically and continuing to the present, the existing
distribution and sale process for Crop Inputs maintains
supra-competitive prices in part by denying farmers accurate
product information, including pricing information, which would
allow them to make better-informed purchasing decisions. As a
result, the average price American farmers pay for Crop Inputs is
increasing at a rate that dramatically outpaces yields, the suit
says.
For example, over the last 20 years, the price of one type of Crop
Input, seed corn, rose 300%, while corn yields increased only 33%
to 35%. In 1989, U.S. farms spent $15.6 billion overall on
chemicals, fertilizer, and seeds. This number rose to $59 billion
in 2019, outpacing inflation by 60%. Crop Inputs have consequently
composed a larger share of farm budgets. In 1989, Crop Inputs
composed 12.6% of farm expenditures; by 2019, Crop Inputs composed
16.4% of farmer spending. These increases are proving increasingly
devastating to farmers, who are now the least profitable level of
the American food supply chain and are drowning in hundreds of
billions of dollars of operating debt that is forcing them into
bankruptcy at a record pace.
Recognizing these inefficiencies, several electronic Crop Inputs
sales platforms launched in at least the past decade. These
electronic platforms aimed to provide a cheaper, more transparent
way for farmers to buy Crop Inputs, circumventing the existing
opaque, convoluted distribution system.
These new platforms threatened the Defendants' dominant market
position and control over Crop Inputs pricing. As a result, rather
than compete fairly with these new electronic platforms, the
Defendants allegedly conspired to block the platforms' access to
Crop Inputs by engaging in a group boycott.
Given the structure of the Crop Inputs industry with the necessary
relationships between manufacturers, wholesalers, and retailers, an
effective boycott of electronic platforms would not have been
feasible absent actual coordination and cooperation among
Defendants. Absent an agreement among themselves, the Defendants'
actions were against their independent economic self-interests.
As a result of Defendants' misconduct, farmers remain trapped in an
inefficient, opaque Crop Inputs market and have paid more for Crop
Inputs than they would have but for the Defendants' wrongful
conduct, the Plaintiff contends.
Plaintiff Charles Lex is a resident of Iowa and citizen of the
United States. During the Class Period and while residing in Iowa,
the Plaintiff purchased Crop Inputs for his own use in his farming
operation and not for resale that were sold by one or more the
Defendants or their co- conspirators.
Bayer AG is a multinational pharmaceutical, chemical, and
agriculture company. Bayer CropScience Incorporated is a
wholly-owned subsidiary of Bayer AG headquartered in St. Louis,
Missouri that develops, manufactures, and sells Crop Inputs in the
United States. Bayer CropScience LP is a wholly-owned subsidiary of
Bayer AG, and is a crop science company that sells Crop Inputs in
the United States. Corteva develops, manufactures, and sells Crop
Inputs in the United States. BASF Corporation is the principal
U.S.-based operating entity and largest subsidiary of BASF SE, a
multinational pharmaceutical, seed, and chemical company. BASF
develops, manufactures, and sells Crop Inputs in the United States.
Syngenta Corporation is the main U.S.-based operating subsidiary of
Syngenta AG. It is headquartered in Wilmington, Delaware. Syngenta
develops, manufactures, and sells Crop Inputs in the United States.
Cargill owns and operates a wholesaler AgResource Division, which
distributes Crop Inputs to Cargill’s retail network and to
retailers. Cargill's AgResource Division maintains contracts with
each of Bayer, Corteva, BASF, and Syngenta entitling it to purchase
and distribute branded Crop Inputs and entitling it to special
rebates. Winfield Solutions is a Crop Inputs wholesaler. It
maintains contracts with each of Bayer, Corteva, BASF, and Syngenta
authorizing it to purchase and distribute branded Crop Inputs and
entitling it to special rebates. Winfield is also a major Crop
Inputs retailer that operates as a cooperative owned by its
members, which are 650 Crop Inputs retail businesses operating
2,800 retail locations throughout the United States and parts of
Canada. Univar Solutions , Incorporated is a Crop Inputs
wholesaler. Univar maintains contracts with each of Bayer, Corteva,
BASF, and Syngenta authorizing it to purchase and distribute
branded Crop Inputs and entitling it to special rebates.
Defendant CHS is one of the largest Crop Inputs wholesalers in the
United States. Like many large wholesalers, it also operates retail
networks bearing the CHS brand around the country that sell Crop
Inputs from brick and mortar stores. Nutrien Ag Solutions sells
Crop Inputs to farmers throughout the country and maintains
contracts with each of Bayer, Corteva, BASF, and Syngenta
authorizing it to purchase and distribute Crop Inputs and entitling
it to special rebates. Nutrien is a large Crop Inputs retailer
headquartered in Illinois. Tenkoz is one of the largest Crop Inputs
retailers in the United States. Tenkoz purchases and sells 25% of
all crop protection chemicals sold in the United States annually
through 550 retail locations and 70 wholesale locations around the
country. Simplot AB is a large Crop Inputs wholesaler and retailer
that operates 135 retail locations across 27 states. Federated
Co-operatives Ltd. is a large Crop Inputs retailer.[BN]
The Plaintiff is represented by:
Robert L. King, Esq.
KOREIN TILLERY LLC
One U.S. Bank Plaza
505 N. 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: (314) 241-4844
E-mail: rking@koreintillery.com
- and -
W. Joseph Bruckner, Esq.
Robert K. Shelquist, Esq.
Brian D. Clark, Esq.
Rebecca A. Peterson, Esq.
Stephanie A. Chen, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Ave. South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
E-mail: wjbruckner@locklaw.com
rkshelquist@locklaw.com
bdclark@locklaw.com
rapeterson@locklaw.com
sachen@locklaw.com
- and -
J. Barton Goplerud, Esq.
Brandon M. Bohlman, Esq.
SCHINDLER, ANDERSON, GOPLERUD &
WEESE P.C.
5015 Grand Ridge Drive, Suite 100
West Des Moines, IA 50265
Telephone: (515) 223-4567
E-mail: goplerud@sagwlaw.com
bohlman@sagwlaw.com
BEECH-NUT NUTRITION: Peek Files Product Liability Suit in New York
------------------------------------------------------------------
A class action lawsuit has been filed against Beech-Nut Nutrition
Company. The case is styled as Laura Peek, Individually and on
Behalf of All Others Similarly Situated v. Beech-Nut Nutrition
Company, Case No. 1:21-cv-00167-TJM-ML (N.D.N.Y., Feb. 11, 2021).
The nature of suit is stated as Contract Product Liability.
Beech-Nut Nutrition Corporation -- https://www.beechnut.com/ -- is
a baby food company that is owned by the Swiss branded
consumer-goods firm Hero Group.[BN]
The Plaintiff is represented by:
Charles J. LaDuca, Esq.
Katherine Van Dyck, Esq.
CUNEO GILBERY & LADUCA, LLP - DC Office
4725 Wisconsin Avenue, NW, Suite 200
Washington, DC 20016
Phone: (202) 789-3960
Fax: (202) 789-1813
Email: charlesl@cuneolaw.com
kvandyck@cuneolaw.com
- and -
Rebecca A. Peterson, Esq.
Robert K. Shelquist, Esq.
LOCKRIDGE GRINDAL NAUEN PLLP
100 Washington Ave. S., Ste. 2200
Minneapolis, MN 55401
Phone: (612) 339-6900
Fax: (612) 339-0981
Email: rapeterson@locklaw.com
rkshelquist@locklaw.com
BEECH-NUT NUTRITION: Thomas Sues Over Mislabeled Baby Food Products
-------------------------------------------------------------------
LAURIE THOMAS; ALISON KAVULAK; JEN MACLEOD; MARY NARVAEZ; ALISON
FLEISSNER; EMILY BIGAOUETTE; LAURA EGGNATZ; TERESA HAGMAIER; and
NICOLE FALLON, individually and on behalf of all others similarly
situated, Plaintiffs v. BEECH-NUT NUTRITION COMPANY, Defendant,
Case No. 1:21-cv-00133-TJM-CFH (N.D.N.Y., Feb. 5, 2021) is an
action against the Defendant's negligent, reckless, and intentional
practice of misrepresenting and failing to fully disclose the heavy
metals and perchlorate or other ingredients that do not conform to
the labels, packaging, advertising, and statements of Defendant's
products sold.
According to the complaint, the Defendant manufactures, markets,
advertises, labels, distributes, and sells baby food products under
the brand name Beech-Nut throughout the United States. The
Defendant states that it offers natural and organic baby foods
"that are free from artificial preservatives, colors and flavors."
The Defendant's packaging and labels further emphasize that its
baby food products are natural, organic, and safe for human infant
consumption, the suit says.
Yet nowhere in the labeling, advertising, statements, warranties,
and packaging does the Defendant disclose that the products include
and have a high risk of containing heavy metals or other
ingredients that do not conform to the labels, packaging,
advertising, and statements, added the suit
Beech-Nut Nutrition Corporation produces food for infants and
toddlers. The Company offers fruit cups, jarred meats and
vegetables, yogurt, cookies, graham crackers, oatmeal, puree fruit
pouches, apple juice, white grape juice, and bottled spring water.
[BN]
The Plaintiffs are represented by:
Kevin Landau, Esq.
Miles Greaves, Esq.
TAUS, CEBULASH & LANDAU, LLP
80 Maiden Lane, Suite 1204
New York, NY 10038
Telephone: (212) 931-0704
-and-
Daniel E. Gustafson, Esq.
Amanda M. Williams, Esq.
Raina C. Borrelli, Esq.
Mary M. Nikolai, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
E-mail: dgustafson@gustafsongluek.com
awilliams@gustafsongluek.com
rborrelli@gustafsongluek.com
mnikolai@gustafsongluek.com
-and-
Kenneth A. Wexler, Esq.
Kara A. Elgersma, Esq.
WEXLER WALLACE, LLP
55 West Monroe, Suite 3300
Chicago, IL 60603
Telephone: (312) 346-2222
E-mail: kaw@wexlerwallace.com
kae@wexlerwallace.com
-and-
Simon B. Paris, Esq.
Patrick Howard, Esq.
SALTZ, MONGELUZZI, &
BENDESKY, P.C.
1650 Market Street, 52nd Floor
Philadelphia, PA 19103
Telephone: (215) 575-3895
E-mail: sparis@smbb.com
phoward@smbb.com
BELLRING BRANDS: Class Suit Against Premier Nutrition Ongoing
-------------------------------------------------------------
Bellring Brands, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that Premier Nutrition
Company, LLC, continues to defend the so-called Joint Juice
Litigation.
In March 2013, a complaint was filed on behalf of a putative,
nationwide class of consumers against Premier Nutrition in the U.S.
District Court for the Northern District of California seeking
monetary damages and injunctive relief. The case asserted that some
of Premier Nutrition's advertising claims regarding its Joint Juice
line of glucosamine and chondroitin dietary supplements were false
and misleading.
In April 2016, the district court certified a California-only class
of consumers in this lawsuit (California Federal Class Lawsuit).
In 2016 and 2017, the lead plaintiff's counsel in the California
Federal Class Lawsuit filed ten additional class action complaints
in the U.S. District Court for the Northern District of California
on behalf of putative classes of consumers under the laws of
Connecticut, Florida, Illinois, New Jersey, New Mexico, New York,
Maryland, Massachusetts, Michigan and Pennsylvania.
These additional complaints contain factual allegations similar to
the California Federal Class Lawsuit, also seeking monetary damages
and injunctive relief. The New Jersey case was voluntarily
dismissed.
In April 2018, the district court dismissed the California Federal
Class Lawsuit with prejudice. This dismissal was upheld on appeal
by the U.S. Court of Appeals for the Ninth Circuit and Plaintiff's
petition for an en banc rehearing by the Ninth Circuit was denied.
The other complaints remain pending in the U.S. District Court for
the Northern District of California, and the court has certified
individual state classes in each of those cases.
In January 2019, the same lead counsel filed an additional class
action complaint against Premier Nutrition in California Superior
Court for the County of Alameda, alleging claims similar to the
above actions and seeking monetary damages and injunctive relief on
behalf of a putative class of California consumers, beginning after
the California Federal Class Lawsuit class period.
In September 2020, the same lead counsel filed another class action
complaint against Premier Nutrition in California Superior Court
for the County of Alameda, alleging identical claims and seeking
restitution and injunctive relief on behalf of the same putative
class of California consumers as the California Federal Class
Lawsuit.
The Company continues to vigorously defend these cases. The Company
does not believe that the resolution of these cases will have a
material adverse effect on its financial condition, results of
operations or cash flows.
Bellring Brands, Inc. manufactures food supplements. The Company
produces nutritional items such as protein shakes, powders, and
bars. Bellring Brands serves customers in the State of Missouri.
The company is based in St. Louis, Missouri.
BIT DIGITAL: Hagens Berman Reminds Investors of March 22 Deadline
-----------------------------------------------------------------
Hagens Berman urges investors in Bit Digital, Inc. (NASDAQ: BTBT)
with significant losses submit your losses now. A securities fraud
class action has been filed and certain investors may have valuable
claims.
Class Period: Dec. 21, 2020 - Jan. 8, 2021
Lead Plaintiff Deadline: Mar. 22, 2021
Visit: www.hbsslaw.com/investor-fraud/BTBT
Contact An Attorney Now: BTBT@hbsslaw.com
844-916-0895
Bit Digital, Inc. (BTBT) Securities Fraud Class Action:
The complaint alleges that Defendants misled investors about Bit
Digital's business operations and prospects by concealing that the
company exaggerated its bitcoin mining operation.
Investors allegedly began to learn the truth on Jan. 11, 2021, when
market analyst J Capital Research issued a scathing report about
the company, concluding that Bit Digital operates "a fake crypto
currency business" "designed to steal funds from investors."
According to J Capital, "[t]he company reported at end Q3 2020 that
it was operating 22,869 bitcoin miners in China," but that "is
simply not possible" and "[w]e verified with local governments
supposedly hosting the BTBT mining operation that there are no
bitcoin miners there."
In response, the price of Bit Digital shares crashed lower.
Most recently, on Feb. 3, 2021 Bit Digital announced its chairwoman
(Ping Liu) resigned, its CEO (Min Hu) was terminated, and its Chief
Strategy Officer (Hong Yu) resigned.
"We're focused on investor losses and proving Bit Digital faked its
business by falsely portraying itself as a player in bitcoin
mining," said Reed Kathrein, the Hagens Berman partner leading the
investigation.
If you are a Bit Digital investor or have information that may
assist our investigation, click here to discuss your legal rights
with Hagens Berman.
Whistleblowers: Persons with non-public information regarding Bit
Digital should consider their options to help in the investigation
or take advantage of the SEC Whistleblower program. Under the new
program, whistleblowers who provide original information may
receive rewards totaling up to 30 percent of any successful
recovery made by the SEC. For more information, call Reed Kathrein
at 844-916-0895 or email BTBT@hbsslaw.com.
About Hagens Berman
Hagens Berman is a national law firm with nine offices in eight
cities around the country and eighty attorneys. The firm represents
investors, whistleblowers, workers and consumers in complex
litigation. More about the firm and its successes is located at
hbsslaw.com. For the latest news visit our newsroom or follow us on
Twitter at @classactionlaw.[GN]
BIT DIGITAL: Klein Law Reminds Investors of March 22 Deadline
-------------------------------------------------------------
The Klein Law Firm announces that a class action complaint has been
filed on behalf of shareholders of Bit Digital, Inc. (NASDAQ: BTBT)
alleging that the Company violated federal securities laws.
Class Period: December 21, 2020 and January 8, 2021
Lead Plaintiff Deadline: March 22, 2021
Learn more about your recoverable losses in BTBT:
http://www.kleinstocklaw.com/pslra-1/bit-digital-inc-loss-submission-form?id=12723&from=5
The filed complaint alleges that Bit Digital, Inc. made materially
false and/or misleading statements and/or failed to disclose that:
(1) that Bit Digital overstated the extent of its a bitcoin mining
operation; and (2) that, as a result of the foregoing, Defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
Shareholders have until March 22, 2021 to petition the court for
lead plaintiff status. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
For additional information about the BTBT lawsuit, please contact
J. Klein, Esq. by telephone at 212-616-4899 or click the link
above.
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation.
Attorney advertising. Prior results do not guarantee similar
outcomes. [GN]
BLAND LANDSCAPING: Roldan FLSA Suit Seeks to Certify Foremen Class
------------------------------------------------------------------
In the class action lawsuit captioned as MANUEL ROLDAN, on behalf
of himself and all others similarly situated v. BLAND LANDSCAPING
COMPANY, INC., Case No. 3:20-cv-00276-RJC-DSC (W.D.N.C.), the
Plaintiff asks the Court to enter an order:
1. granting conditional certification of the action as a
representative collective action under the Fair Labor
Standards Act (FLSA), on behalf of:
"the Plaintiff and all other persons similarly situated
(individuals employed as Foremen by Defendant at any time
since May 13, 2017)"
2. approving the proposed FLSA notice of this action and the
consent form in both English and Spanish;
3. providing an updated production of names, last known
mailing addresses, alternate addresses, telephone numbers,
email addresses, and dates of employment of all putative
class members;
4. providing ability to email and/or text message the
proposed Notice, along with utilizing regular U.S. Mail;
5. certifying this action as a class action under Rule 23(a)
and (b)(3) for the North Carolina Wage and Hour Act
claims; and
6. appointing the named Plaintiff Roldan as class
representative, and
7. appointing the Law Offices of Gilda A. Hernandez, PLLC as
class counsel.
The issue, in this case, relates to Bland Landscaping's failure to
properly compensate non-exempt Foremen, who perform landscaping
work. Specifically, the Defendant's common policies and practices
include: requiring plaintiffs arrive at the Defendant's yards
approximately 15 minutes earlier than others, but not compensate
for such time; deducting one full hour from Foremen's pay; and
taking unauthorized deductions from Foremen's wages for unlawful
charges. All Foremen are subject to these systemic policies and
practices that violate both the Fair Labor Standards Act (FLSA),
and the North Carolina Wage and Hour Act (NCWHA).
On May 13, 2020, the Plaintiff Roldan filed the Collective/Class
Action Complaint, on behalf of himself and all other individuals
employed as Foremen by the Defendant.
Bland Landscaping is a regional, private equity-backed, Commercial
and Estate Landscape Management and Contracting business
headquartered in Apex, NC. Since our humble beginnings in 1976, our
geographic footprint has grown to span across North Carolina from
Charlotte to Wilmington and beyond.
A copy of the Court's the Plaintiff's motion to certify class dated
Feb. 3, 2020 is available from PacerMonitor.com at
https://bit.ly/3adyqLe at no extra charge.[CC]
The Plaintiff is represented by:
Gilda Adriana Hernandez, Esq.
Gilda A. Hernandez, Esq.
Charlotte C. Smith, Esq.
1020 Southhill Drive, Ste. 130
Cary, NC 27513
Telephone: (919) 741-8693
Facsimile: (919) 869-1853
E-mail: ghernandez@gildahernandezlaw.com
csmith@gildahernandezlaw.com
BLOOMSCAPE INC: Williams Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Bloomscape, Inc. The
case is styled as Milton Williams, on behalf of himself and all
other persons similarly situated v. Bloomscape, Inc., Case No.
1:21-cv-01266 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Bloomscape -- https://bloomscape.com/ -- is an online plant
shopping platform that offers home ready plants and tools for plant
care.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
BONOBOS INC: Faces Kemp $5M Suit in Southern District of New York
-----------------------------------------------------------------
A class action lawsuit has been filed against Bonobos, Inc. The
case is captioned as Kemp et al v. Bonobos, Inc., Case No.
1:21-cv-00854-JMF (S.D.N.Y., Jan. 29, 2021).
The suit demands $5 million in damages involving personal property.
The case is assigned to the Hon. Judge Jesse M. Furman.
Bonobos is an upscale, e-commerce-driven apparel subsidiary of
Walmart headquartered in New York City that designs and sells men's
clothing. The store has a specific emphasis on the sale of men's
suits, trousers, denim, shirts, shorts, swimwear, outerwear and
accessories.[BN]
The Plaintiffs Daryl Kemp and Bradley Cooper are represented by:
Brittany Leanne Brown, Esq.
David Jude George, Esq.
Lori Gwen Feldman, Esq.
GEORGE GESTEN MCDONALD PLLC
9897 Lake Worth Road, Ste. 302
Lake Worth, FL 33467
Telephone: (561) 232-6002
E-mail: bbrown@4-justice.com
dgeorge@4-justice.com
lfeldman@4-justice.com
BP PLC: Stikeman Elliott Attorney Discusses Class Action Ruling
---------------------------------------------------------------
Alexandra Urbanski, Esq. -- aurbanski@stikeman.com -- of Stikeman
Elliott LLP, in an article for Mondaq, reports that the Court of
Appeal for Ontario's recent decision in Kaynes v. BP p.l.c., 2021
ONCA 36 ("Kaynes") provides guidance on when a claim for fraudulent
misrepresentation is discoverable in a securities class action and
when a claim can be dismissed as statute-barred on a Rule 21
motion. The decision is the last in a series of attempts made by
the plaintiff to commence a class proceeding against British
Petroleum ("BP") in Ontario, following the April 2010 explosion of
the BP oil rig Deepwater Horizon in the Gulf of Mexico.
Background
The plaintiff Kaynes was a resident of Alberta who on or before
August 2008 purchased BP shares on the New York Stock Exchange.
Kaynes alleged that BP made numerous misrepresentations in its
securities filings about its operational safety and its ability to
respond to an oil disaster, which had artificially inflated BP's
stock price. In the wake of the Deepwater Horizon explosion, Kaynes
alleged that BP made several revisions to its disclosure documents
correcting the misrepresentations it had made over the previous
years, which caused BP's share price to plummet.
In November 2012, Kaynes filed a statement of claim in Ontario
alleging the statutory cause of action for secondary market
misrepresentation provided for in s.138.3 of Ontario's Securities
Act (the "Act") and common law negligent misrepresentation (this
allegation was withdrawn in August 2013). BP challenged Ontario's
jurisdiction over this matter, alleging that there was no real and
substantial connection between Ontario and the claims of Canadian
residents who purchased their shares on foreign exchanges. BP's
jurisdictional challenge was initially dismissed, but the Court of
Appeal for Ontario allowed BP's appeal on the basis of forum non
conveniens and permitted the proposed class action to proceed only
on behalf of those plaintiffs who had purchased BP shares on the
Toronto Stock Exchange. The claim of Canadians who purchased their
shares on foreign exchanges was stayed.
After bringing a successful motion to lift the stay of his Canadian
proceedings in Ontario, in June 2017, Kaynes delivered an amended
statement of claim. This amended claim advanced statutory
misrepresentation claims solely on the basis of the Act. It added
new misrepresentation claims, and added for the first time,
allegations that BP knew that its misrepresentations were false
when it made them. BP succeeded in challenging the timeliness of
many of the misrepresentation claims, which were held to be
statute-barred as the three-year limitation period under the Act
had lapsed. This decision had the effect of significantly reducing
the scope of the proposed class period (from 1,080 days to 55
days).
In September 2019, Kaynes delivered another amended statement of
claim that for the first time expressly advanced a cause of action
for fraudulent misrepresentation.
Decision of the Motion Judge
BP brought a motion under Rule 21.01(1)(a)[1] of the Ontario Rules
of Civil Procedure for an order declaring that Kaynes' fraudulent
misrepresentation claims were statute-barred pursuant to the
Ontario Limitations Act, 2002. Kaynes resisted the motion on two
bases: (i) that it was not plain and obvious that his claim was
statute-barred; and (ii) a limitations issue cannot be determined
on a Rule 21 motion when discoverability is in issue.
The motion judge granted BP's motion and dismissed the action,
holding that all common law misrepresentation claims, whether
negligent or fraudulent, were discovered when BP made corrective
disclosures between March and June 2010. The limitation period for
this cause of action expired in June of 2012, and therefore, the
fraudulent misrepresentation claims advanced by Kaynes in 2019 were
out of time. Alternatively, the motion judge concluded that Kaynes
would have discovered BP's fraudulent intent by 2010 from the
existence of U.S. litigation against BP, which advanced claims
based on scienter (an intent to deceive, manipulate or defraud) --
that is, BP had fraudulently misrepresented its securities to
secondary market purchasers.[2]
While the motion judge acknowledged that a court should only rule
on a limitation issue before a statement of defence is filed in the
rarest of circumstances, the motion judge was satisfied this was
such a case as it was "plain and obvious" that no additional facts
could be asserted that would alter the conclusion that the
limitation period had expired.
Kaynes appealed the motion judge's decision.
Decision of the Court of Appeal for Ontario
The Court of Appeal held that the motion judge erred in his
discovery analysis and particularly in his finding that the claim
for fraudulent misrepresentation was discovered when BP admitted to
making the misrepresentations, rather than when BP admitted to
knowingly making the misrepresentations.
The timing of "discoverability"
Under the Limitations Act, 2002, a "claim" is discovered when the
person with the claim first knew or ought to have known "that the
injury, loss or damage was caused by or contributed to by an act or
omission" (among certain other criteria). As a claim necessarily
involves a legal remedy, the act or omission that must be
discovered is one that will give rise to a legal remedy, i.e., a
cause of action. Therefore, the Court reasoned, in the case of a
fraudulent misrepresentation the act or omission that must have
been discovered is a misrepresentation "made with knowledge that
the representation was false, an absence of belief in its truth or
recklessness as to its truth". To define "discovery" of such a
claim in a way that omitted this "knowledge" requirement would make
no sense, as it would require a person to commence a fraudulent
misrepresentation action without the legal basis for doing so, in
order to preserve the limitation period.
The Court's holding
Ultimately, the Court held that Kaynes had not discovered the
fraudulent misrepresentation claim in 2010 as the motion judge
found, but found that Kaynes was still out of time on the basis
that, the plaintiff's pleadings conceded that July 2015 was the
last date BP's fraudulent conduct could have been discovered. As
this July 2015 date was not in dispute, the Court held it is plain
and obvious that Kaynes' 2019 fraudulent misrepresentation claim
was out of time and statute barred.
The Court further held that the motion judge erred in relying on
pleadings from the U.S. proceedings to establish discoverability of
fraudulent circumstances. While the scienter pleading means that
the plaintiff alleges knowing falsehoods, the Court noted that a
pleading on its face is not determinative of the knowledge issue
and a factual inquiry was required.
The Court agreed with the motion judge that the limitations issue
could be determined on a Rule 21 motion. While Rule 21.01(1)(a)
refers to the determination of a question of law, the Court held
that where the facts regarding discovery of a claim are undisputed
so that the determination is "plain and obvious", then whether the
action is statute-barred is considered a question of law that can
be determined on a Rule 21 motion.
Key Take-Aways
Kaynes makes it clear that a limitation period for fraudulent
misrepresentation commences when a claimant is able to discover
that a misrepresentation was made "with knowledge that the
representation was false, an absence of belief in its truth or
recklessness as to its truth"; and that a Rule 21 motion may be an
effective way to dismiss statute-barred claims provided the facts
regarding discovery of the claim are undisputed.
From a practical perspective, this case is a good reminder about
the importance of observing limitation periods in securities class
actions and how defendants can rely on limitation period defenses
to substantially limit plaintiffs' claims.
Footnotes
1 Rule 21.01(1)(a) provides that "A party may move before a judge,
for the determination, before trial, of a question of law raised by
a pleading in an action where the determination of the question may
dispose of all or part of the action, substantially shorten the
trial or result in a substantial saving of costs."
2 In the U.S., investors rely on SEC Rule 10b-5, 17 C.F.R. s. 240.
10b-5 under s.10(b) of the Securities Exchange Act of 1934, to
bring actions for misrepresentation in continuous disclosure. A
plaintiff in the U.S. must plead and prove scienter, namely an
intent to deceive, manipulate or defraud. [GN]
CAPTIVA MVP: 11th Cir. Affirms Dismissal of Tsao Data Breach Suit
-----------------------------------------------------------------
The United States Court of Appeals for the Eleventh Circuit affirms
the dismissal without prejudice of the lawsuit entitled I TAN TSAO,
individually and on behalf of all others similarly situated,
Plaintiff-Appellant v. CAPTIVA MVP RESTAURANT PARTNERS, LLC, A
Florida Limited Liability Company doing business as PDQ,
Defendant-Appellee, Case No. 18-14959 (11th Cir.).
PDQ is a group of fast casual restaurants that sells chicken
tenders, chicken nuggets, salads, and sandwiches. Like most
restaurants today, PDQ accepts payment through a point of sale
system where customers can insert credit or debit cards to pay for
their meal. When customers pay with a debit or credit card, PDQ
collects some data from the cards, including the cardholder's name,
the account number, the card's expiration date, the card
verification value code ("CVV"), and PIN data for debit cards. PDQ
then stores this data in its point of sale system and transmits the
information to a third party for processing and for completion of
the payment.
Beginning on May 19, 2017, a hacker exploited PDQ's point of sale
system and gained access to customers' personal data--the credit
and debit card information--through an outside vendor's remote
connection tool. PDQ later became aware of the breach, and on June
22, 2018, it posted a notice to customers that it had "been the
target of a cyber-attack." The notice stated that "all PDQ
locations in operation" between May 19, 2017, and April 20, 2018,
were affected by the attack, and the notice listed the customers'
personal information that "may have been accessed": cardholder
names, credit card numbers, card expiration dates, and CVVs.
In October 2017--during the data breach period--Plaintiff Tsao made
at least two food purchases at a PDQ restaurant in Pinellas,
Florida, using two different cards. Because Tsao made purchases at
PDQ during the breach period, the credit card data from these cards
may have been accessed by hackers. So, when Tsao learned of the
possible breach in 2018, he contacted both Chase and Wells Fargo
and cancelled his cards.
Less than two weeks after PDQ's announcement of the cyber-attack,
Tsao filed a class action complaint (the "Complaint") in the Middle
District of Florida on behalf of a nationwide class, or
alternatively, a separate Florida class. The Complaint lists a
variety of injuries that PDQ customers allegedly suffered as a
result of the cyber-attack, including "theft of their personal
financial information," "unauthorized charges on their debit and
credit card accounts," and "ascertainable losses in the form of the
loss of cash back or other benefits."
Based on these alleged injuries, the Complaint claims that PDQ (1)
breached an implied contract by failing to safeguard customers'
credit card data (Count I); (2) was negligent in failing to provide
adequate security for the credit card data (Count II); (3) was per
se negligent because PDQ violated Section 5 of the Federal Trade
Commission Act (15 U.S.C. Section 45), which prohibits unfair
practices that affect commerce (Count III); (4) was unjustly
enriched when it received payments from the customers but failed to
provide those customers with adequate data security (Count IV); and
(5) violated the Florida Unfair and Deceptive Trade Practices Act
by failing to, among other things, maintain "adequate data security
practices" (Count VI). The Complaint additionally seeks a
declaratory judgment stating that "PDQ's existing data security
measures do not comply with its contractual obligations and duties
of care" and that PDQ, in order to comply with those obligations,
is required to implement and maintain a variety of security
measures (Count V).
PDQ moved to dismiss the Complaint on August 28, 2018. It argued
that the Complaint failed to state a claim under Federal Rules of
Civil Procedure 12(b)(1), (b)(6), and (b)(7) "for failure to
satisfy Article III standing, to state a claim upon which relief
can be granted, and/or for failure to join indispensable parties."
On the standing issue, PDQ emphasized that, although customer data
may have been "compromised" or "exposed" during the cyber-attack,
Tsao failed to identify "a single incident involving an actual
misuse of the credit card information, much less any misuse causing
any of the customers any actual injury." Instead, PDQ argued,
Tsao's claims were "premised on a fear that his credit card
information may be misused at some point in the future," and since
he cancelled his cards before any misuse occurred, he was
foreclosed from alleging damages. And even if Tsao did incur some
out-of-pocket expenses to mitigate the risk of misuse, PDQ claimed
that such "manufactured standing" was not enough to satisfy Article
III.
On November 1, 2018, the District Court dismissed Tsao's Complaint
without prejudice for lack of standing. The Court noted that
although Tsao claimed that his private data was "compromised" and
"exposed" to criminals, not once did he allege "that his credit
cards were used in any way by a thief or that his identity was
stolen." Nor did Tsao identify "a single specific, concrete injury
in fact that he or anyone else suffered as a result of any misuse
of customer credit card information." These conclusory allegations
of harm, the Court found, were speculative at best, and mere
"evidence of a data breach, without more, was insufficient to
satisfy injury in fact under Article III standing."
The appeal followed. Tsao's briefing mostly retreads the arguments
he made--that he and the class are at an elevated risk of future
identity theft and that he lost cash back and rewards point, time,
and account access--in an effort to satisfy Article III's standing
requirement. But after a careful review of the record and with the
benefit of oral argument, the Appellate Court affirms the District
Court's dismissal for lack of standing.
Mr. Tsao's arguments focus on two general theories of standing.
First, he argues that he could suffer future injury from misuse of
the personal information disclosed during the cyber-attack (though
he has not yet), and this risk of misuse alone is enough to satisfy
the standing requirement. Then, he argues that he has already
suffered some "concrete, particularized" mitigation injuries--for
example, lost time, lost rewards points, and loss of access to
accounts--that are sufficient to confer standing.
The Appellate Court rejects both of these theories of standing.
In support of his theory that the PDQ hack may result in future
identity theft, Tsao cites to the June 2007 United States
Government Accountability Office (GAO) report on data breaches. The
2007 GAO Report states that "identity theft" includes "many types
of criminal activities, including fraud on existing accounts--such
as unauthorized use of a stolen credit card number--or fraudulent
creation of new accounts--such as using stolen data to open a
credit card account in someone else's name," (citing U.S. Gov't
Accountability Off., GAO-07-737, Personal Information: Data
Breaches are Frequent, but Evidence of Resulting Identity Theft is
Limited; However, the Full Extent is Unknown (2007) (hereinafter
"GAO Report")). That report points out, however, that compromised
credit or debit card information, without additional personal
identifying information, "generally cannot be used alone to open
unauthorized new accounts."
Circuit Judge Gerald Bard Tjoflat, writing for the Panel, opines
that the Eleventh Circuit, like the Eighth Circuit in In re
SuperValu, Inc., 870 F.3d 763, 770-72 (8th Cir. 2017), believes the
GAO Report actually demonstrates why there is no "substantial risk"
of identity theft here. Tsao has not alleged that social security
numbers, birth dates, or driver's license numbers were compromised
in the PDQ breach, and the card information allegedly accessed by
the PDQ hackers "generally cannot be used alone to open
unauthorized new accounts." So, based on the GAO Report, it is
unlikely that the information allegedly stolen in the PDQ breach,
standing alone, raises a substantial risk of identity theft.
This leaves with the risk that the hackers, if they accessed and
stole Tsao's credit card information, could make unauthorized
purchases with his cards or drain his accounts, Judge Tjoflat
notes. But again, the GAO Report suggests that most data breaches
have not resulted in detected incidents of fraud on existing
accounts. Indeed, the GAO Report reviewed the 24 largest data
breaches between January 2000 and June 2005 and found that only 4
of the 24 breaches (roughly 16.667%) resulted in some form of
identity theft, and only 3 resulted in account theft or fraud
(12.5%). Given the low rate of account theft, the GAO Report simply
does not support the conclusion that the breach here presented a
"substantial risk" that Tsao would suffer unauthorized charges on
his cards or account draining, Judge Tjoflat holds.
According to Judge Tjoflat, three considerations color this
conclusion. First, the Appellate Court recently held in Muransky v.
Godiva Chocolatier, Inc., 979 F.3d 917, 931 (11th Cir. 2020) (en
banc) that conclusory allegations of an "elevated risk of identity
theft"--or, as Tsao puts it, a "continuing increased risk" of
identity theft--"are simply not enough" to confer standing. Second,
Tsao offers only vague, conclusory allegations that members of the
class have suffered any actual misuse of their personal data--in th
case, "unauthorized charges." Third, Tsao immediately cancelled his
credit cards following disclosure of the PDQ breach, effectively
eliminating the risk of credit card fraud in the future.
In short, Tsao has not alleged either that the PDQ data breach
placed him at a "substantial risk" of future identity theft or that
identity theft was "certainly impending," Judge Tjoflat holds.
Evidence of a mere data breach does not, standing alone, satisfy
the requirements of Article III standing. It follows that Tsao does
not have standing here based on an "increased risk" of identity
theft, Judge Tjoflat adds.
The Appellate Court turns now to Tsao's claims that he has suffered
actual, present injuries in his efforts to mitigate the risk of
identity theft caused by the data breach.
Following notice of the PDQ data breach, Tsao notified Wells Fargo
and Chase to cancel his credit cards and, in his words,
"proactively t[ook] steps to mitigate the damage done by PDQ's
mistakes." As a result of these mitigation efforts, Tsao claims
that he has suffered three distinct injuries: (1) lost opportunity
to accrue cash back or rewards points on his cancelled credit
cards, (2) costs associated with detection and prevention of
identity theft in taking the time and effort to cancel and replace
his credit cards; and (3) restricted account access to his
preferred payment cards.
Judge Tjoflat points out that Tsao's mitigation efforts are not
enough to confer standing.
The mitigation costs Tsao alleges are inextricably tied to his
perception of the actual risk of identity theft following the PDQ
data breach, Judge Tjoflat notes. Tsao, by his own admission,
voluntarily cancelled his credit cards, and the three types of harm
he has identified flowed from that cancellation. By cancelling his
cards, he voluntarily forwent the opportunity to accrue cash back
or rewards points on those cards. By cancelling his cards, he
voluntarily restricted access to his preferred payment cards. And
by cancelling his cards, he voluntarily spent time safeguarding his
accounts.
Judge Tjoflat points out that Tsao cannot conjure standing here by
inflicting injuries on himself to avoid an insubstantial,
non-imminent risk of identity theft. To hold otherwise would allow
"an enterprising plaintiff . . . to secure a lower standard for
Article III standing simply by making an expenditure based on a
nonparanoid fear," citing Clapper, 568 U.S. at 416, 133 S. Ct. at
1151. The law does not permit such a result, Judge Tjoflat states.
The Panel holds that Tsao lacks Article III standing because he
cannot demonstrate that there is a substantial risk of future
identity theft--or that identity theft is certainly impending--and
because he cannot manufacture standing by incurring costs in
anticipation of non-imminent harm. Accordingly, the Appellate Court
affirms the District Court's order dismissing the case without
prejudice for lack of standing.
Adalberto Jose Jordan, Circuit Judge, concurring in the judgment.
A full-text copy of the Court's Opinion dated Feb. 4, 2021, is
available at https://tinyurl.com/4qspxeko from Leagle.com.
CARDINAL HEALTH: Bid to Junk Generic Pharmaceutical Suit Pending
----------------------------------------------------------------
Cardinal Health, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that the motion to
dismiss filed in the class action suit initiated by indirect
purchasers of generic drugs, such as hospitals and retail
pharmacies, is pending.
In December 2019, pharmaceutical distributors including the company
were added as defendants in a civil class action lawsuit filed by
indirect purchasers of generic drugs, such as hospitals and retail
pharmacies.
The indirect purchaser case is part of a multidistrict litigation
consisting of multiple individual class action matters consolidated
in the Eastern District of Pennsylvania.
The indirect purchaser plaintiffs allege that pharmaceutical
distributors encouraged manufacturers to increase prices, provided
anti-competitive pricing information to manufacturers and
improperly engaged in customer allocation.
Cardinal said, "We have filed a motion to dismiss the complaints
and we intend to vigorously defend ourselves."
No further updates were provided in the Company's SEC report.
Cardinal Health, Inc. operates as an integrated healthcare services
and products company in the United States and internationally. It
provides medical products and pharmaceuticals, and solutions that
enhance supply chain efficiency for hospitals, healthcare systems,
pharmacies, ambulatory surgery centers, clinical laboratories, and
physician offices. Cardinal Health, Inc. was founded in 1979 and is
headquartered in Dublin, Ohio.
CARDINAL HEALTH: Bid to Nix 1199 SEIU Health Care Suit Pending
--------------------------------------------------------------
Cardinal Health, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that the motion to
dismiss filed in the purported class action suit headed by 1199
SEIU Health Care Employees Pension Fund, is pending.
In August 2019, the Louisiana Sheriffs' Pension & Relief Fund filed
a purported class action complaint against Cardinal Health and
certain current and former officers and employees in the United
States District Court for the Southern District of Ohio purportedly
on behalf of all purchasers of the company's common shares between
March 2015 and May 2018.
In June 2020, the court appointed 1199 SEIU Health Care Employees
Pension Fund as lead plaintiff and a consolidated amended complaint
was filed in September 2020.
The amended complaint alleges that the defendants violated Sections
10(b) and 20(a) of the Securities and Exchange Act of 1934 by
making misrepresentations and omissions related to the acquisition
integration of the Cordis business and inventory and supply chain
problems within the Cordis business, and seeks to recover
unspecified damages and equitable relief for the alleged
misstatements and omissions.
The complaint also alleges that one of the individual defendants
violated Section 20A of the Exchange Act because he sold shares of
Cardinal Health stock during the time period.
In November 2020, the company filed a motion to dismiss the amended
complaint.
Cardinal said, "We believe that the claims asserted in this
complaint are without merit and intend to vigorously defend against
them."
Cardinal Health, Inc. operates as an integrated healthcare services
and products company in the United States and internationally. It
provides medical products and pharmaceuticals, and solutions that
enhance supply chain efficiency for hospitals, healthcare systems,
pharmacies, ambulatory surgery centers, clinical laboratories, and
physician offices. Cardinal Health, Inc. was founded in 1979 and is
headquartered in Dublin, Ohio
CBSC INC: Deadline for Class Status Bid Filing Extended to April 2
------------------------------------------------------------------
In the class action lawsuit captioned as Angeles v. CBSC, Inc. et
al., Case No. 5:20-cv-01540 (N.D. Ohio), the Hon. Judge Carmen E.
Henderson entered an order granting motion to extend deadlines as
follows:
1. The class certification deadline is now April 2, 2021;
2. The Plaintiff's expert disclosure report (if any) is due
on or by April 2, 2021;
3. The Defendant's expert disclosure report (if any) is due
on or by May 3, 2021;
4. All discovery is to be completed on or by June 2, 2021;
5. Dispositive motions are to be filed on or by June 15,
2021; and
6. The upcoming status teleconference, which is scheduled for
February 16, 2021 at 11:30 AM, will proceed as scheduled
to discuss the status of discovery and Plaintiffs counsels
failure to respond to the Courts electronic communication
dated January 26, 2021.
The suit alleges violation of the Fair Debt Collection Practices
Act.[CC]
CENTER FOR ADDICTIVE PROBLEMS: Chambers Seeks OT Pay Under FLSA
---------------------------------------------------------------
KEYWANDA CHAMBERS on behalf of herself, and all other plaintiffs
similarly situated, known and unknown v. CENTER FOR ADDICTIVE
PROBLEMS, INC., AN ILLINOIS CORPORATION, Case No. 1:21-cv-00635
(N.D. Ill., Feb. 2, 2021) seeks to recover overtime pay under the
Fair Labor Standards Act, the Illinois Minimum Wage Law, and the
Chicago Minimum Wage Ordinance.
The Plaintiff contends that she was compensated on an hourly basis
and on a regular basis worked over 40 hours per week without
receiving overtime pay for such hours from the Defendant. Rather,
the Defendant allegedly paid her only her straight time hourly rate
for all hours worked, including overtime-eligible hours worked in
excess of 40 in individual work weeks.
The Plaintiff is a former employee who worked for the Defendant as
a Licensed Nurse Practitioner (LPN) from June 2013 until December
2020. Chambers performed nursing duties including distribution of
certain medications, administering shots, taking and recording the
vital signs of patients, etc.
The Defendant provides addiction treatment, recovery, therapy and
counseling services at two locations in the Chicagoland area,
located at 609 N. Wells in Chicago, Illinois and 4954 Main Street
in Downers Grove, Illinois.[BN]
The Plaintiff is represented by:
John William Billhorn, Esq.
BILLHORN LAW FIRM
53 West Jackson Blvd., Suite 401
Chicago, IL 60604
Telephone: (312) 853-1450
CERTAIN UNDERWRITERS: Denial of Class Certification Bid Sought
--------------------------------------------------------------
In the class action lawsuit captioned as STEPHEN G. AQUILINA and
LUCINA J. AQUILINA, Individually and on Behalf of All Others
Similarly Situated; and DONNA J. CORRIGAN and TODD L. CORRIGAN,
Individually and on Behalf of All Others Similarly Situated, v.
CERTAIN UNDERWRITERS AT LLOYD'S LONDON, et al., Case No.
00496-ACK-KJM (D. Haw.), the Defendants Borisoff Insurance
Services, Inc. and Specialty Program Group, LLC ask the Court for
an order to deny certification of the Plaintiffs' proposed class in
their First Amended Complaint.
This lawsuit arises out of the Plaintiffs' purchase of homeowners'
insurance from Certain Underwriters at Lloyd's of London. The
Plaintiffs claim they were somehow damaged because they bought
policies with a lava exclusion, despite being paid for losses
occurring during the 2018 Kilauea eruption and otherwise
benefitting from having insurance in the years prior to the
eruption.
The Plaintiffs are also involved in two of the many state-court
lawsuits alleging similar claims. Nevertheless, they seek to have
this lawsuit certified as a class action. Their request for class
action should be denied and this motion for class decertification
granted, says the Defendants.
The Defendants include LLOYD'S SYNDICATE No. 2003; LLOYD'S
SYNDICATE No. 318; LLOYD'S SYNDICATE No. 4020; LLOYD'S SYNDICATE
No. 2121; LLOYD'S SYNDICATE No. 2007; LLOYD'S SYNDICATE No. 1183;
LLOYD'S SYNDICATE No. 1729; BORISOFF INSURANCE SERVICES, INC. d/b/a
MONARCH E&S INSURANCE SERVICES; SPECIALTY PROGRAM GROUP, LLC d/b/a
SPG INSURANCE SOLUTIONS, LLC.; ALOHA INSURANCE SERVICES, INC.;
ILIKEA LLC d/b/a MOA INSURANCE SERVICES HAWAI‘I; and DOES 1-
100.
A copy of the Defendant' motion dated Feb. 4, 2020 is available
from PacerMonitor.com at https://bit.ly/3b1ECoq at no extra
charge.[CC]
Attorneys for the Defendants Borisoff Insurance and Specialty
Program Group, are:
Lennes N. Omuro, Esq.
Edmund K. Saffery, Esq.
Wayne R. Wagner, Esq.
Forest B. Jenkins, Esq.
GOODSILL ANDERSON QUINN & STIFEL
A LIMITED LIABILITY LAW PARTNERSHIP LLP
First Hawaiian Center, Suite 1600
999 Bishop Street
Honolulu, HI 96813
Telephone: (808) 547-5600
Facsimile: (808) 547-5880
E-mail: lomuro@goodsill.com
esaffery@goodsill.com
wwagner@goodsill.com
fjenkins@goodsill.com
- and -
Kristi W. Dean, Esq.
STONE|DEAN, LLP
21600 Oxnard Street
Upper Lobby, Suite 200
Woodland Hills, CA 91367
CHOBANI LLC: Yogurt Doesn't Contain Madagascar Vanilla, Suit Says
-----------------------------------------------------------------
Susan Glazebrook, individually and on behalf of all others
similarly situated v. Chobani, LLC, Case No. 1:21-cv-10181 (D.
Mass., Feb. 2, 2021) seeks to remedy the Defendant's deceptive
labeling, marketing, and sale of its "Chobani Less Sugar Greek
Yogurt Madagascar Vanilla & Cinnamon" ("Product").
According to the complaint, the Defendant has misled the Plaintiff
and reasonable consumers to believe the Product contains
"Madagascar Vanilla" as the ingredient that provides for the
Product's characterizing vanilla flavor. In reality, the Product
contains "natural flavors," as the ingredient that provides for the
Product's characterizing vanilla flavor, the suit says.
The Plaintiff seeks damages, injunctive relief, and a jury trial
for Defendant's deceptive and misleading actions that have unjustly
enriched the the Defendant.
The Plaintiff is currently, and has been throughout the Class
Period, a resident of Saugus, Massachusetts. During the Class
Period, she purchased the Defendant's Product on several occasions
based on the representation and reasonable belief that the Product
contained Madagascar Vanilla.
Chobani is an American food company specializing in strained
yogurt. The company was founded in 2005 by Hamdi Ulukaya who had
bought a plant in the town of South Edmeston, New York, that was
being closed by Kraft Foods.[BN]
The Plaintiff is represented by:
John T. Longo, Esq.
LAW OFFICE OF JOHN T. LONGO
177 Huntington Avenue, 17th Fl., Suite 5
Boston, MA 02115
Telephone: (617) 863-7550
E-mail: jtlongo@jtlongolaw.com
- and -
Peter N. Wasylyk, Esq.
LAW OFFICES OF PETER N. WASYLYK
1307 Chalkstone Avenue
Providence, RI 02908
Telephone: (401) 831-7730
Facsimile: (401) 861-6064
E-mail: pnwlaw@aol.coms
CHOWBUS INC: Flores Suit Seeks Minimum & OT Wages Under FLSA, NYLL
------------------------------------------------------------------
ARMANDO FRANCISCO FLORES, NOE ESCAMILLA VILLANO, and MARIO
CLEMENTE, individually and on behalf of others similarly situated
v. CHOWBUS INC. (D/B/A CHOWBUS), FANTUAN GROUP, INC. (D/B/A
CHOWBUS), CHOWBUS GROCERY LLC (D/B/A CHOWBUS), CHEN PU, EDDIE LOU,
and LINXIN WEN, Case No. 1:21-cv-00970 (S.D.N.Y., Feb. 2, 2021)
seeks to recover unpaid minimum and overtime wages pursuant to the
Fair Labor Standards Act of 1938 and the New York Labor Law,
including applicable liquidated damages, interest, attorneys' fees
and costs.
According to the complaint, the Plaintiffs worked for the
Defendants in excess of 40 hours per week, without appropriate
minimum wage, overtime, and spread of hours compensation for the
hours that they worked. Rather, the Defendants failed to maintain
accurate recordkeeping of the hours worked and failed to pay them
appropriately for any hours worked, either at the straight rate of
pay or for any additional overtime premium. Further, Defendants
failed to pay them the required "spread of hours" pay for any day
in which they had to work over 10 hours a day, the suit says.
The Plaintiffs were employed as delivery workers at the Defendants'
delivery application.
The Defendants own, operate, or control a food service delivery
application, located at 55 E Jackson Blvd., Ste. 450, Chicago,
Illinois.[BN]
The Plaintiffs are represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 4510
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
E-mail: Faillace@employmentcompliance.com
CIRCLE K STORES: Pettersen CFAL Suit Removed to S.D. California
---------------------------------------------------------------
The case styled WILLIAM D. PETTERSEN, individually and on behalf of
all others similarly situated v. CIRCLE K STORES INC. and DOES
1-10, Case No. 37-2020-00044765-CU-BT-CTL, was removed from the
Superior Court of the State of California for the County of San
Diego to the U.S. District Court for the Southern District of
California on February 8, 2021.
The Clerk of Court for the Southern District of California assigned
Case No. 3:21-cv-00237-H-BGS to the proceeding.
The case arises from the Defendant's alleged false or misleading
advertising under the California False Advertising Law and unfair
competition within the meaning of the California Business &
Professions Code.
Circle K Stores Inc. is an international chain of convenience
stores, headquartered in Tempe, Arizona. [BN]
The Defendant is represented by:
Tyler R. Andrews, Esq.
GREENBERG TRAURIG, LLP
18565 Jamboree Road, Suite 500
Irvine, CA 92612-4410
Telephone: (949) 732-6500
Facsimile: (949) 732-6501
E-mail: andrewst@gtlaw.com
CLOVER HEALTH: Faces Bond Suit Over 12.3% Drop in Share Price
-------------------------------------------------------------
TIMOTHY BOND, individually and on behalf of all others similarly
situated, Plaintiff v. CLOVER HEALTH INVESTMENTS, CORP.; CHAMATH
PALIHAPITIYA; VIVEK GARIPALLI; and ANDREW TOY, Defendants, Case No.
3:21-cv-00096 (M.D. Tenn., Feb. 5, 2021) is a federal securities
class action on behalf of all investors who purchased or otherwise
acquired Clover Health Investments, Corp. ("Clover" or the
"Company") common stock between October 6, 2020 and February 3,
2021, inclusive (the "Class Period"), seeking remedies under the
Securities Exchange Act of 1934.
The Plaintiff alleges in the complaint that throughout the Class
Period, the Defendants made materially false and misleading
statements regarding the Company's business. Specifically, the
Defendants made false and misleading statements and failed to
disclose that: (i) Clover was the recipient of a Civil
Investigative Demand from the DOJ; (ii) much of Clover's sales are
driven by a major related party deal that Clover not only failed to
disclose but took active steps to conceal; (iii) Clover's
subsidiary Seek Insurance failed to disclose its relationship with
Clover and misled consumers as to its purported independence; (iv)
Clover's software was in fact rudimentary; and (v) as a result, the
Company's public statements were materially false and misleading at
all relevant times.
The complaint further states that shares of Clover common stock
plummeted from their February 3, 2021 closing price of $13.95 per
share to just $12.23 per share on February 4, 2021, representing a
one day drop of approximately 12.3%. This represents a loss of
approximately $700 million in market capitalization. Moreover,
shares traded as low as $11.86 per share intraday on February 4,
2021, the suit says.
Clover Health Investment, Corp. provides insurance services. The
Company offers hospital, medical, and private insurance services.
[BN]
The Plaintiff is represented by:
J. Gerard Stranch, IV, Esq.
Benjamin A Gastel, Esq.
BRANSTETTER, STRANCH
& JENNINGS, PLLC
223 Rosa L Parks Avenue, Suite 200
Nashville, TN 37203
Telephone: (615) 254-8801
Facsimile: (615) 255-5419
E-mail: gerards@bsjfirm.com
beng@bjsfirm.com
-and-
Jeffrey C. Block, Esq.
Jacob A. Walker, Esq.
Stephen J. Teti, Esq.
BLOCK & LEVITON LLP
260 Franklin Street, Suite 1860
Boston, MA 02110
Telephone: (617) 398-5600
Facsimile: (617) 507-6020
E-mail: jeff@blockleviton.com
jake@blockleviton.com
steti@blockleviton.com
CLOVER HEALTH: Rosen Law Firm Reminds Investors of April 6 Deadline
-------------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on Feb. 8
disclosed that it has filed a class action lawsuit on behalf of
purchasers of the securities of Clover Health Investments, Corp.
f/k/a Social Capital Hedosophia Holdings Corp. III (NASDAQ: CLOV,
CLOVW) (NYSE: IPOC) who: (1) purchased or otherwise acquired
publicly traded Clover securities between October 6, 2020 and
February 4, 2021, inclusive (the "Class Period"); and/or (2)
purchased or otherwise acquired Clover securities pursuant or
traceable to the registration statement and prospectus issued in
connection with the December 2020 Merger of Clover and Social
Capital III. If you wish to serve as lead plaintiff, you must move
the Court no later than April 6, 2021.
SO WHAT: If you purchased Clover 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 Clover class action, go to
http://www.rosenlegal.com/cases-register-2030.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. If you
wish to serve as lead plaintiff, you must move the Court no later
than April 6, 2021. A lead plaintiff is a representative party
acting on behalf of other class members in directing the
litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience or resources. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 3 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020 founding partner Laurence Rosen was named by law360 as a Titan
of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period and in the registration statement made
false and/or misleading statements and/or failed to disclose that:
(1) Clover's Clover Assistant platform was under active
investigation by the Department of Justice ("DOJ") for at least 12
issues ranging from kickbacks to marketing practices to undisclosed
third-party deals; (2) the DOJ's investigation presented an
existential risk to the Company, since it derives most of its
revenues from Medicare; (3) Clover's sales were driven by a major
undisclosed related party deal and misleading marketing targeting
the elderly, not its purported "best-in-class" technology; (4) a
significant portion of Clover's sales were by way of an undisclosed
relationship between Clover and an outside brokerage firm
controlled by Clover's Head of Sales; and (5) as a result,
defendants' statements about its business, operations, and
prospects, were materially false and misleading and/or lacked a
reasonable basis at all relevant times. When the true details
entered the market, the lawsuit claims that investors suffered
damages.
To join the Clover class action, go to
http://www.rosenlegal.com/cases-register-2030.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.
Attorney Advertising. Prior results do not guarantee a similar
outcome.
Contact Information:
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]
CLOVER HEALTH: Schall Law Firm Reminds of April 6 Deadline
----------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on Feb. 8 announced the filing of a class action lawsuit against
Clover Health Investments, Corp. f/k/a Social Capital Hedosophia
Holdings Corp. III ("Clover" or "the Company") (NASDAQ: CLOV,
CLOVW) violations of the federal securities laws.
Investors who purchased or otherwise acquired publicly traded
Clover securities between October 6, 2020 and February 4, 2021,
inclusive (the "Class Period"); and/or purchased or otherwise
acquired Clover securities pursuant or traceable to the
registration statement and prospectus issued in connection with the
December 2020 Merger of Clover and Social Capital III, are
encouraged to contact the firm before April 6, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Clover was the subject of an active DOJ
investigation of at least 12 issues including kickbacks and
deceptive marketing. The investigation represented a major threat
to the Company's future due to its dependence on Medicare for
revenue. The Company's sales were not driven by its "best-in-class"
technology as it touted, but rather by misleading marketing
practices aimed at senior citizens. A considerable portion of the
Company's sales were derived from an undisclosed relationship with
a brokerage firm controlled by the Clover's head of sales. 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 Clover, 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]
CONTINENTAL INTERMODAL: Hubbard Suit Seeks OT Wages Under NMMWA
---------------------------------------------------------------
MARCUS HUBBARD and NATHANIEL EVANS v. CONTINENTAL INTERMODAL GROUP
- TRUCKING LLC, Case No. 6:21-cv-00086 (D.N.M., Feb. 2, 2021) is
brought by the Plaintiffs and other similarly non-exempt truck
drivers seeking to recover unpaid overtime wages and other damages
under the New Mexico Minimum Wage Act (NMMWA).
According to the complaint, the Defendant has employed the
Plaintiffs and other non-exempt truck drivers to haul necessary oil
field materials, including sand to customer well sites throughout
New Mexico over the past three years, but failed to properly pay
them for overtime hours worked at the legally required rate in
violation of the NMMWA.
The Defendant is a logistics provider offering transloading,
inventory management, transportation, and storage solutions to
customers in the oil and gas industry. Specifically, the Defendant
provides "last mile" services to oil field customers, delivering
necessary oil field materials to the customers’ well site and
providing services and equipment for the management and storage of
materials on-site once delivered.
Mr. Hubbard is an individual residing in Arkansas. He was employed
by the Defendant for from April 2019 to May 2020. The Plaintiff
worked for the Defendant as a truck driver in the State of New
Mexico within the three years preceding the filing of this lawsuit.
Mr. Evans is an individual residing in Louisiana. He was employed
by Defendants from April of 2019 through August of 2019. The
Plaintiff worked for the Defendant as a truck driver in the State
of New Mexico within the three years preceding the filing of this
lawsuit.[BN]
The Plaintiff is represented by:
Linda G. Hemphill, Esq.
Leigh Messerer, Esq.
THE HEMPHILL FIRM, P.C.
P.O. Box 33136
Santa Fe, NM 87594
Telephone: (505) 986-8515
E-mail: linda@hemphillfirm.com
leigh@hemphillfirm.com
- and -
Benjamin W. Allen, Esq.
Casey T. Wallace, Esq.
WALLACE & ALLEN, LLP
440 Louisiana, Suite 1500
Houston, TX 77002
Telephone: (713) 224-1744
Facsimile: (713) 227-0104
E-mail: ballen@wallaceallen.com
cwallace@wallaceallen.com
CORAL SPRINGS: Snarski TCPA Suit Removed to S.D. Florida
--------------------------------------------------------
The case captioned as Matthew Snarski, individually and on behalf
of all others similarly situated v. Coral Springs KGB, Inc., Case
No. CACE-21-0000484 was removed from the 17th Judicial Circuit,
Broward County, Florida, to the U.S. District Court for the
Southern District of Florida on Feb. 11, 2021.
The District Court Clerk assigned Case No. 0:21-cv-60338-JIC to the
proceeding.
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Coral Springs KGB, Inc. -- http://www.coralspringsautomall.com/--
retails automobiles and accessories.[BN]
The Plaintiff is represented by:
Jibrael Jarallah Said Hindi, Esq.
THE LAW OFFICES OF JIBRAEL S. HINDI
110 SE 6th St., 17th Floor
Fort Lauderdale, FL 33301
Phone: (954) 907-1136
Email: jibrael@jibraellaw.com
- and -
Manuel Santiago Hiraldo, Esq.
HIRALDO P.A.
401 E. Las Olas Blvd. Ste 1400
Fort Lauderdale, FL 33394
Phone: (954) 400-4713
Email: mhiraldo@hiraldolaw.com
The Defendant is represented by:
Jeffrey Jordan Wilcox, Esq.
HILL WARD HENDERSON
101 E. Kennedy Blvd., Suite 3700
Tampa, FL 33602
Phone: (813) 222-8725
Email: jwilcox@hwhlaw.com
COSTCO WHOLESALE: Cohen Suit Removed From State Court to C.D. Cal.
------------------------------------------------------------------
The class action lawsuit captioned as NIR COHEN, individually and
on behalf of all others similarly situated, v. COSTCO WHOLESALE
CORPORATION, a Washington corporation; ROWLAND AIR, INC., a
California corporation; and DOES 1 through 100, inclusive, Case No.
20STCV49155 (Filed Dec. 24, 2020), was removed from the Superior
Court of the State of California for the County of Los Angeles, to
the United States District Court for the Central District of
California on Jan. 29, 2021.
The complaint alleges causes of action against the Defendants
including Violation of California Business and Professions Code,
Section 7031(b); Unfair Business Practices Pursuant to California
Business and Professions Code, Section 17200, et seq.; and False
and Misleading Advertising Pursuant to California Business and
Professions Code.
The Plaintiff alleges that on November 12, 2020, he responded to
Costco's offer for home improvement work. The Plaintiff contends
that Costco was unlicensed when the home improvement work was
performed. A review of Costco's business records reflects that the
home improvement work on the Plaintiff's property was performed on
December 8, 2020. While Costco denies the Plaintiff's allegations
that it did not have a valid contractor license, presuming only for
the purposes of removal that Costco was unlicensed during this
timeframe, Costco received payment for contracting services from
2,061 individuals within the state of California, the suit says.
Costco Wholesale is an American multinational corporation which
operates a chain of membership-only warehouse clubs.
Rowland Air provides a full range of heating and air conditioning
services in Santa Clarita, Valencia CA, Lancaster, Palmdale, and
San Fernando Valley.[BN]
The Defendant is represented by:
Gayle M. Athanacio, Esq.
Cody A. DeCamp, Esq
ROGERS JOSEPH O'DONNELL
311 California Street
San Francisco, CA 94104
Telephone: (415) 956 2828
Facsimile: (415) 956 6457
E-mail: gathanacio@rjo.com
cdecamp@rjo.com
CULLEN/FROST: Class Suits Over PPP Loan Agent Fees Dismissed
------------------------------------------------------------
Cullen/Frost Bankers, Inc. said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 5, 2021,
for the fiscal year ended December 31, 2020, that the purported
class action suits that alleged the company refuses to pay agent
fees to purported agents of borrowers under the Paycheck Protection
Program (PPP) in violation of Small Business Administration ("SBA")
regulations, have been dismissed.
In May of 2020, a purported class action lawsuit was filed against
Frost Bank in a Texas Federal court alleging that Frost Bank had
refused to pay agent fees to purported agents of borrowers under
the PPP in violation of SBA regulations.
The Plaintiff's motion to dismiss the Federal lawsuit was effected
and as a result the Federal lawsuit is resolved.
In July 2020, a purported class action lawsuit was filed against
Frost Bank in a California Federal court alleging that Frost Bank
had refused to pay agent fees to purported agents of borrowers
under the PPP in violation of SBA regulations.
The Plaintiff subsequently filed a motion to dismiss the lawsuit
and the lawsuit was thereby resolved.
In October 2020, a lawsuit was filed against Frost Bank in Texas
State court alleging, among other claims, that Frost Bank had
refused to provide a PPP loan to the purported applicant.
Frost Bank removed the lawsuit to Federal court, and the presiding
Federal judge subsequently dismissed the lawsuit with prejudice.
Based in San Antonio, Tex., Cullen/Frost Bankers, Inc. is a
financial holding company and a bank holding company. Through its
subsidiaries, the Company provides products and services throughout
numerous Texas markets, including commercial and consumer banking,
trust and investment management, mutual funds, investment banking,
insurance, brokerage, leasing, asset-based lending, treasury
management and item processing.
D&W FINE: Illegally Collects Employees' Fingerprints, Smith Alleges
-------------------------------------------------------------------
NICOLE SMITH, individually and on behalf of all others similarly
situated, Plaintiff v. D&W FINE PACK, LLC, Defendant, Case No.
2021L000182 (Ill. Cir., 18th Jud. Ct., Dupage Cty., February 10,
2021) is a class action against the Defendant for violations of the
Biometric Information Privacy Act.
According to the complaint, the Defendant did not and continues not
to: (a) properly inform the Plaintiff and others similarly situated
in writing of the specific purpose and length of time for which
their fingerprint(s) were being collected, stored, disseminated and
used; (b) provide a publicly available retention schedule and
guidelines for permanently destroying the Plaintiff's and other
similarly-situated individuals' fingerprints; (c) receive a written
release from the Plaintiff and others similarly situated to
collect, store, disseminate or otherwise use their fingerprint(s);
and (d) obtain consent from the Plaintiff and others similarly
situated to disclose, redisclose, or otherwise disseminate their
biometric identifiers and/or biometric information to a third
party.
D&W Fine Pack, LLC is a manufacturer of food packaging products
doing business in Illinois. [BN]
The Plaintiff is represented by:
Brandon M. Wise, Esq.
Paul A. Lesko, Esq.
PEIFFER WOLF CARR KANE & CONWAY, APLC
818 Lafayette Ave., Floor 2
St. Louis, MO 63104
Telephone: (314) 833-4825
E-mail: bwise@peifferwolf.com
plesko@peifferwolf.com
DALE ELECTRONICS: Quezada Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Dale Electronics
Corp. The case is styled as Jose Quezada, on behalf of himself and
all others similarly situated v. Dale Electronics Corp., Case No.
1:21-cv-01241 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Dale Electronics Corp. -- https://daleproaudio.com/ -- wholesales
and distributes electronic parts and electronic communications
equipment.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
DAUGHERTY SYSTEMS: Seeks to Decertify Conditional Collective Class
------------------------------------------------------------------
In the class action lawsuit captioned as TAMARA O'REILLY v.
DAUGHERTY SYSTEMS, INC., Case No. 4:18-cv-01283-SRC (E.D. Mo.),
Defendant Daugherty Systems asks the Court to enter an order:
1. granting its motion to decertify conditional collective
class; and
2. dismissing all claims of the Opt-in Plaintiffs without
prejudice, and for such further relief the Court deems
proper and just.
On March 31, 2020, the Court granted conditional certification,
conditionally certifying a collective class consisting of:
"current and former female consultants and sales employees."
On August 3, 2018, Plaintiff Tamara O'Reilly filed a Complaint on
behalf of herself and all current and former consultants and sales
employees employed by the Defendant, alleging that members of the
collective were victims of a single decision, policy, or plan that
resulted in female employees being paid less than their male
comparators.
Daugherty provides business consulting solutions. The Company
offers management consulting, mobile consulting, business
intelligence, custom development, and managed services.
A copy of the Defendant's motion to decertify class dated Feb. 2,
2020 is available from PacerMonitor.com at https://bit.ly/2MVNaFx
at no extra charge.[CC]
The Plaintiff is represented by:
Matthew J. Ghio, Esq.
GHIO LAW FIRM LLC
3115 S. Grand, Suite 100
St. Louis, MO 63118
Telephone: (314) 707-5853
Facsimile: (314) 732-1404
E-mail: matt@ghioemploymentlaw.com
- and -
Eli Karsh, Esq.
LIBERMAN, GOLDSTEIN & KARSH
230 South Bemiston Ave., Suite 1200
Clayton, MO 63105
Telephone: (314) 862-3333 Ext 13
Facsimile: (314) 862-0605
E-mail: elikarsh@aol.com
The Defendant is represented by:
Abigail B. Schwab, Esq.
Andrew J. Martone, Esq.
Willie T. McGarry, Esq.
HESSE MARTONE, P.C.
530 Maryville Centre Drive, Suite 250
St. Louis, MO 63141
Telephone: (314) 862-0300
Facsimile: (314) 862-7010
E-mail: andymartone@hessemartone.com
abbyschwab@hessemartone.com
williemcgarry@hessemartone.com
DAVANTAGE GROUP: Settles Motor Warranty Class Action for $9.5MM
---------------------------------------------------------------
InsuranceNews.com.au reports that members of a motor warranty class
action have agreed to settle the lawsuit for $9.5 million,
significantly lower than the $47.6 million they were seeking from
Davantage Group, a subsidiary of listed fleet leasing company
McMillan Shakespeare.
Federal Court Justice Jonathan Beach announced the terms of the
financial compensation in a ruling on Feb. 5, months after the two
parties agreed to settle it last October and more than a year after
he ruled the product contracts had been "intended to operate to
permit denial of full coverage" of repair claims.
Justice Beach says the compensation "represents a small recovery
when one has regard to the estimated aggregate value of the group
members' claims" but points out that Davantage's financial position
has deteriorated, with net assets of just $956,000 at June 30 2019,
compared to $26.6 million a year earlier.
Furthermore, its parent company McMillan Shakespeare did not
propose to indemnify Davantage in respect of any settlement that it
agreed to pay or any judgment entered against it.
It was also noted that Davantage's excess layer insurers -- CGU
Insurance, Dual Australia Pty Ltd, and Berkley Insurance Australia
-- have all denied indemnity, as has its primary insurer,
Suncorp-owned Vero Insurance.
"In summary, I accept that the $9.5 million payment offered by
Davantage after commercial negotiation represents the best recovery
that could be achieved," Justice Beach said.
"I say this in circumstances where Davantage has no capacity to
satisfy a substantial judgment on the applicant's and group
members' claims in the proceeding and each of the relevant insurers
have denied coverage.
"In summary, in my view it is fair and reasonable and in the
interests of group members to settle the proceeding for the global
sum of $9.5 million."
Consumer Action Law Centre CEO Gerard Brody says the class action
provided some measure of access to justice for insurance customers
who have been ripped off.
"Rubbish warranties have been sold for far too long and this
penalty is some good news," he told insuranceNEWS.com.au today.
"But the sad fact is that only a fraction of potential claimants
signed up to the class action so thousands of low-income families
who have been ripped off by junk insurance have missed out.
"It's time this scam is knocked on the head once and for all."
[GN]
DAVITA INC: Kyros Law Files Legal Claims on Behalf of Investors
---------------------------------------------------------------
Kyros Law Offices is alerting investors of Davita Inc (NYSE:DVA)
that the deadline in filing claims from the investor lawsuit
settlement against the company is fast approaching.
The company has agreed to settle a shareholder lawsuit filed
against it by investors for over $135 million dollars.
Davita Inc (NYSE:DVA) investors that purchased between 02/26/2015
and 10/06/2017 are urged to contact our law firm immediately to
protect their rights. Visit our DVA Lawsuit Settlement website or
call 1-800-934-2921 to speak to someone about your case. Your legal
rights will be affected whether you act or do not act. If you do
not act, you may permanently forfeit your right to recover on this
claim.
The shareholder lawsuit alleged that company officials made false
statements stemming from allegations that senior officials at the
company deliberately arranged to push patients into insurance plans
they didn't need in order to increase profits.
Davita Inc (NYSE:DVA) investors that purchased between 02/26/2015
and 10/06/2017 are urged to contact our law firm immediately to
protect their rights. Visit our DVA Lawsuit Settlement website or
call 1-800-934-2921 to speak to someone about your case.
Receive alerts about potential class action lawsuits that may
affect you by visiting the Class Action Lawsuit Center website.
Kyros Law specializes in a wide range of complex litigation, mass
torts, and corporate governance matters, including the
representation of whistleblowers, shareholders and consumers in
securities fraud, false claims act and class actions. Our lawyers
have been responsible for recovering hundreds of millions of
dollars for our clients throughout the United States, Africa, Asia
and Europe. Visit our website to learn more about our firm. [GN]
DECISION DIAGNOSTICS: Faruqi & Faruqi Reminds of March 16 Deadline
------------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against Decision Diagnostics Corp.
("Decision Diagnostics" or the "Company") (Other OTC:DECN) and
reminds investors of the March 16, 2021 deadline to seek the role
of lead plaintiff in a federal securities class action that has
been filed against the Company.
If you suffered losses exceeding $300,000 investing in Decision
Diagnostics stock or options between March 3, 2020 and December 17,
2020 and would like to discuss your legal rights, call Faruqi &
Faruqi partner Josh Wilson directly at 877-247-4292 or 212-983-9330
(Ext. 1310). You may also click here for additional information:
Faruqi & Faruqi is a leading minority and Woman-owned national
securities law firm with offices in New York, Delaware,
Pennsylvania, California and Georgia.
As detailed below, the lawsuit focuses on whether the Company and
its executives violated federal securities laws by making false
and/or misleading statements and/or failing to disclose that: (1)
Decision Diagnostics had not developed any viable COVID-19 test,
much less a test that could detect COVID-19 in less than one
minute; (2) the Company could not meet the FDA's emergency use
authorization ("EUA") testing requirements for its purported
COVID-19 test; (3) accordingly, Defendants had misrepresented the
timeline within which it could realistically bring its COVID-19
test to market; (4) all the foregoing subjected Defendants to an
increased risk of regulatory oversight and enforcement; and (5) as
a result, Defendants' public statements were materially false and
misleading at all relevant times.
Specifically, on December 17, 2020, the Securities and Exchange
Commission ("SEC") filed a complaint in federal court against
Defendants, alleging that they had issued a series of press
releases that falsely claimed that Decision Diagnostics had
developed a finger-prick blood test that could detect COVID-19 in
less than one minute (the "SEC Complaint"). According to the SEC
Complaint, from March 2020 to at least June 2020, Defendants made
false and misleading statements about the existence of Decision
Diagnostics' COVID-19 device and progress towards achieving FDA EUA
for that device. As alleged, at the time of these claims, Decision
Diagnostics lacked a proven method for detecting the virus and had
no physical testing device. The SEC Complaint further alleged that
the statements created the misleading impression that Decision
Diagnostics would soon introduce the COVID-19 test to the market,
which led to surges in the price and trading volume of the
Company's stock.
Following the filing of the SEC Complaint, Decision Diagnostics'
common share price fell $0.06 per share, or 60%, to close at $0.04
per share on December 18, 2020.
The court-appointed lead plaintiff is the investor with the largest
financial interest in the relief sought by the class who is
adequate and typical of class members who directs and oversees the
litigation on behalf of the putative class. Any member of the
putative class may move the Court to serve as lead plaintiff
through counsel of their choice, or may choose to do nothing and
remain an absent class member. Your ability to share in any
recovery is not affected by the decision to serve as a lead
plaintiff or not.
Faruqi & Faruqi, LLP also encourages anyone with information
regarding Decision Diagnostics' conduct to contact the firm,
including whistleblowers, former employees, shareholders and
others.
Attorney Advertising. The law firm responsible for this
advertisement is Faruqi & Faruqi, LLP ( ). Prior results do not
guarantee or predict a similar outcome with respect to any future
matter. We welcome the opportunity to discuss your particular case.
All communications will be treated in a confidential manner. [GN]
DIRECTV LLC: Creve Coeur Suit Removed from Circuit Ct. to E.D. Mo.
------------------------------------------------------------------
The class action lawsuit captioned as City of Creve Coeur,
Missouri, v. DirecTV, LLC, et al., Case No. 18SL-CC02821-01, was
removed from the St. Louis County Circuit Court, Missouri, to the
U.S. District Court for the Eastern District of Missouri on Jan.
29, 2021.
The District Court Clerk assigned Case No. 4:21-cv-00122-AGF to the
proceedings.
The case arises from contract-related issues and is assigned to the
Hon. Judge Audrey G. Fleissig.
DirecTV is an American direct broadcast satellite service provider
based in El Segundo, California, and is a subsidiary of AT&T. Its
satellite service, launched on June 17, 1994, transmits digital
satellite television and audio to households in the United States,
Latin America, and the Caribbean.[BN]
The Plaintiff is represented by:
Carl J. Lumley, Esq.
CURTIS HEINZ PC
130 S. Bemiston Ave., Suite 200
St. Louis, MO 63105-1951
Telephone: (314) 725-8788
Facsimile: (314) 725-8789
E-mail: clumley@lawfirmemail.com
- and -
Elkin L. Kistner, Esq.
BICK AND KISTNER PC
101 S. Hanley Road, Suite 1280
St. Louis, MO 63105
Telephone: (314) 571-6823
Facsimile: (314) 727-9071
E-mail: elkinkis@bick-kistner.com
- and -
Garrett Ray Broshuis, Esq.
John W. Hoffman, Esq.
Steven M. Berezney, Esq.
KOREIN AND TILLERY LLC -- ST LOUIS
505 North 7th Street, Suite 3600
St. Louis, MO 63101
Telephone: (314) 241-4844
Facsimile: (314) 241-3525
E-mail: gbroshuis@koreintillery.com
jhoffman@koreintillery.com
sberezney@koreintillery.com
- and -
John F. Mulligan , Jr., Esq.
101 S. Hanley, Suite 1280
Clayton, MO 63105
Telephone: (314) 725-1135
Facsimile: (314) 727-9071
E-mail: jfmulliganjr@aol.com
Defendant DirecTV, LLC is represented by:
Booker T. Shaw, Esq.
Robert J. Wagner, Esq.
Roman P. Wuller, Esq.
Katie Lee, Esq.
THOMPSON COBURN LLP -- ST LOUIS
One US Bank Plaza
505 N. 7th Street, Suite 2700
St. Louis, MO 63101
Telephone: (314) 552-6087
Facsimile: (314) 552-7087
E-mail: bshaw@thompsoncoburn.com
rwagner@thompsoncoburn.com
rwuller@thompsoncoburn.com
klee@thompsoncoburn.com
Defendants Dish Network Corp. and Dish Network L.L.C. are
represented by:
Jeffrey L. Schultz, Esq.
ARMSTRONG TEASDALE LLP -- ST LOUIS
7700 Forsyth Blvd., Suite 1800
St. Louis, MO 63105
Telephone: (314) 621-5070
Facsimile: (314) 621-5065
E-mail: jschultz@atllp.com
DISCOUNT DANCE: Blind Users Can't Access Website, Sanchez Claims
----------------------------------------------------------------
CHRISTIAN SANCHEZ, on behalf of himself and all others similarly
situated v. DISCOUNT DANCE, LLC, Case No. (S.D.N.Y., Feb. 2, 2020)
alleges that the Defendant failed to design, construct, maintain,
and operate its Website to be fully accessible to and independently
usable by the Plaintiff and other blind or visually-impaired
people.
The Plaintiff contends that the Defendant's denial of full and
equal access to its Website, www.discountdance.com, and therefore
denial of its products and services offered thereby, is a violation
of the Plaintiff's rights under the Americans with Disabilities
Act.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Website will become and remain accessible to blind
and visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read Website content using her
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet their definition have limited vision.
Others have no vision.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind's 2015 report, approximately 400,000
visually impaired persons live in the State of New York.
The Defendant is a dancewear company, and owns and operates the
Website, offering features which should allow all consumers to
access the goods and services and which the Defendant ensures the
delivery of such goods throughout the United States, including New
York State. The goods and services offered by the Defendant include
the ability to browse dancewear for purchase and delivery, view
sales, obtain the defendant's contact information, and related
goods and services available online.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Telephone: (929) 575-4175
Facsimile: (929) 575-4195
E-mail: Joseph@cml.legal
DXC TECHNOLOGY: Appeal on Class Action's Dismissal Pending
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DXC Technology Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that the appeal on the
order of dismissal in the purported class action suit filed before
the United States District Court for the Eastern District of
Virginia, is pending.
On December 27, 2018, a purported class action lawsuit was filed in
the United States District Court for the Eastern District of
Virginia against the Company and two of its current officers.
The lawsuit asserts claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended, and is premised on
allegedly false and/or misleading statements, and alleged
non-disclosure of material facts, regarding the Company's business,
operations, prospects and performance during the proposed class
period of February 8, 2018 to November 6, 2018.
The Company moved to dismiss the claims in their entirety, and on
June 2, 2020, the court granted the Company's motion, dismissing
all claims and entering judgment in the Company's favor.
On July 1, 2020, the plaintiffs filed a notice of appeal to the
U.S. Court of Appeals for the Fourth Circuit.
The appeal remains pending.
DXC Technology Company, together with its subsidiaries, provides
information technology services and solutions primarily in North
America, Europe, Asia, and Australia. It operates through three
segments: Global Business Services (GBS), Global Infrastructure
Services (GIS), and United States Public Sector (USPS). DXC
Technology Company was founded in 1959 and is headquartered in
Tysons, Virginia.
DXC TECHNOLOGY: Hearing on Bid for Initial Cert. Set for April 15
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DXC Technology Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that the plaintiffs'
motion for preliminary certification of the collective action in
Forsyth, et al. v. HP Inc. and Hewlett Packard Enterprise, is set
to be heard on April 15, 2021.
On August 18, 2016, this purported class and collective action was
filed in the U.S. District Court for the Northern District of
California, against HP Inc. (HP) and Hewlett Packard Enterprise
(HPE) alleging violations of the Federal Age Discrimination in
Employment Act (ADEA), the California Fair Employment and Housing
Act, California public policy and the California Business and
Professions Code.
Former business units of HPE now owned by the Company may be
proportionately liable for any recovery by plaintiffs in this
matter.
Plaintiffs seek to certify a nationwide class action under the ADEA
comprised of all U.S. residents employed by defendants who had
their employment terminated pursuant to a workforce reduction
("WFR") plan and who were 40 years of age or older at the time of
termination. The class seeks to cover those impacted by WFRs on or
after December 2014.
Plaintiffs also seek to represent a Rule 23 class under California
law comprised of all persons 40 years of age or older employed by
defendants in the state of California and terminated pursuant to a
WFR plan on or after August 18, 2012.
In January 2017, defendants filed a partial motion to dismiss and a
motion to compel arbitration of claims by certain named and opt-in
plaintiffs who had signed release agreements as part of their WFR
packages.
In September 2017, the Court denied the partial motion to dismiss
without prejudice, but granted defendants' motions to compel
arbitration for those named and opt-in plaintiffs. The Court stayed
the entire action pending arbitration for these individuals and
administratively closed the case.
A mediation was held in October 2018 with the 16 named and opt-in
plaintiffs who were involved in the case at that time. A settlement
was reached, which included seven plaintiffs who were employed by
former business units of HPE that are now owned by the Company.
In June 2019, a second mediation was held with 145 additional
opt-in plaintiffs who were compelled to arbitration pursuant to
their release agreements.
In December 2019, a settlement was reached with 142 of the opt-in
plaintiffs, 35 of whom were employed by former business units of
HPE that are now owned by the Company, and for which the Company
was liable.
In December 2020, Plaintiffs filed a motion for preliminary
certification of the collective action, which Defendants intend to
oppose. A hearing on the motion has been scheduled for April 15,
2021.
Former business units of the Company now owned by Perspecta may be
proportionately liable for any recovery by plaintiffs in this
matter.
DXC Technology Company, together with its subsidiaries, provides
information technology services and solutions primarily in North
America, Europe, Asia, and Australia. It operates through three
segments: Global Business Services (GBS), Global Infrastructure
Services (GIS), and United States Public Sector (USPS). DXC
Technology Company was founded in 1959 and is headquartered in
Tysons, Virginia.
DXC TECHNOLOGY: Hearing on Bid to Junk Class Suit Set for April 23
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DXC Technology Company said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that the hearing on the
motion to dismiss the consolidated purported class action suit is
is scheduled for April 29, 2021.
On August 20, 2019, a purported class action lawsuit was filed in
the Superior Court of the State of California, County of Santa
Clara, against the Company, directors of the Company, and a former
officer of the Company, among other defendants.
On September 16, 2019, a substantially similar purported class
action lawsuit was filed in the United States District Court for
the Northern District of California against the Company, directors
of the Company, and a former officer of the Company, among other
defendants.
On November 8, 2019, a third purported class action lawsuit was
filed in the Superior Court of the State of California, County of
San Mateo, against the Company, directors of the Company, and a
former officer of the Company, among other defendants. The third
lawsuit was voluntarily dismissed by the plaintiff and re-filed in
the Superior Court of the State of California, County of Santa
Clara on November 26, 2019, and thereafter was consolidated with
the earlier-filed action in the same court on December 10, 2019.
The California lawsuits assert claims under Sections 11, 12 and 15
of the Securities Act of 1933, as amended, and are premised on
allegedly false and/or misleading statements, and alleged
non-disclosure of material facts, regarding the Company's prospects
and expected performance. Plaintiff in the federal action filed an
amended complaint on January 8, 2020.
The putative class of plaintiffs in these cases includes all
persons who acquired shares of the Company's common stock pursuant
to the offering documents filed with the Securities and Exchange
Commission in connection with the April 2017 transaction that
formed DXC.
On July 15, 2020, the Superior Court of California, County of Santa
Clara, denied the Company's motion to stay the state court case but
extended the Company's deadline to seek dismissal of the state
action, until after a decision on the Company's motion to dismiss
the federal action.
The Company has since moved to dismiss the state action, and the
court has continued the motion until after the outcome of the
federal action. On July 27, 2020, the United States District Court
for the Northern District of California granted the Company's
motion to dismiss the federal action.
The Court's order permitted plaintiffs to amend and refile their
complaint within 60 days, and on September 25, 2020, the plaintiffs
filed an amended complaint.
On November 12, 2020, the Company filed a motion to dismiss the
amended complaint. A hearing on the motion is scheduled for April
29, 2021.
DXC Technology Company, together with its subsidiaries, provides
information technology services and solutions primarily in North
America, Europe, Asia, and Australia. It operates through three
segments: Global Business Services (GBS), Global Infrastructure
Services (GIS), and United States Public Sector (USPS). DXC
Technology Company was founded in 1959 and is headquartered in
Tysons, Virginia.
DYCK O'NEAL: Feb. 15 Extension to Class Status Bid Response Sought
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In the class action lawsuit captioned as NAKIA CHEEKS individually,
and on behalf of all similarly situated consumers, v. DYCK O'NEAL,
INC., Case No. 8:19-cv-02148-GJH (D. Md.), the Defendant asks the
Court to enter an order extending the deadline to respond to the
motion to certify class.
DONI's response is currently due Thursday, February 4, 2021.
Through the instant motion, DONI seeks a 14-day extension of time,
or until Monday, February 15, 2021, within which to respond to the
Plaintiff's motion to certify class.
This is an action involving the Fair Debt Collection Practices Act.
On January 21, 2021, the Plaintiff filed a motion to certify class.
Dyck-O'Neal is a debt collector.
A copy of the Defendant's motion dated Feb. 2, 2020 is available
from PacerMonitor.com at https://bit.ly/3d1O91z at no extra
charge.[CC]
The Defendant is represented by:
Jaime W. Luse, Esq.
Cori B. Schreider, Esq.
TYDINGS & ROSENBERG LLP
One East Pratt Street, Suite 901
Baltimore, MD 21202
Telephone: (410) 752-9700
Facsimile: (410) 727-5460
E-mail: jluse@tydings.com
cschreider@tydings.com
- and -
Sangeeta Spengler, Esq.
GOLDEN SCAZ GAGAIN, PLLC
201 North Armenia Avenue
Tampa, FL 33609
Telephone: 813-251-5500
E-mail: spspenger@gsgfirm.com
EAST BATON ROUGE, LA: Bids to Dismiss Belton v. Gautreaux Granted
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In the lawsuit captioned CLIFTON BELTON, JR., ET AL. v. SHERIFF SID
GAUTREAUX, IN HIS OFFICIAL CAPACITY AS SHERIFF OF EAST BATON ROUGE,
ET AL., Case No. 20-00278-BAJ-SDJ (M.D. La.), the U.S. District
Court for the Middle District of Louisiana granted two motions to
dismiss:
-- the Motion to Dismiss Pursuant to Rule 12(b) of the Federal
Rules of Civil Procedure by Defendants Sheriff Sid J.
Gautreaux, III, and Lt. Col. Dennis Grimes ("Sheriff
Defendants"); and
-- the Motion to Dismiss by Defendant City of Baton
Rouge/Parish of East Baton Rouge ("City/Parish").
Collectively, the Defendants' Motions seek wholesale dismissal of
the Plaintiffs' putative class action, with prejudice. The
Plaintiffs oppose the Defendants' Motions. The Defendants have
filed reply memoranda in further support of their respective
Motions, and the Plaintiffs and the Defendants have each submitted
supplemental letters to the Court regarding recent factual and
legal developments relevant to the Plaintiffs' claims.
The Plaintiffs' proposed class action is one of many in the Circuit
and around the nation alleging unconstitutional prison conditions
wrought by the ongoing COVID-19 pandemic.
The Plaintiffs consist of 10 men who are, or have recently been
incarcerated in the East Baton Rouge Parish Prison ("EBRPP"). They
are all African-American, range in age from 21 to 60 years old, and
many suffer from chronic health conditions, including diabetes,
high blood pressure, and heart disease. One Plaintiff (Jerry
Bradley) alleges that he contracted COVID-19 while imprisoned. All
allege that they are at substantially greater risk of contracting
COVID-19 as a result of the Defendants' failures to adequately
safeguard prisoners against the virus.
In their Amended Complaint, the Plaintiffs allege that the jail has
made no efforts to implement the standard protective measures that
medical experts have advised for all people. The jail does not
practice or promote social distancing, does not adequately clean or
disinfect common and high-touch areas, and otherwise leaves
detained individuals without sufficient soap or masks to protect
themselves; it provides inadequate medical care to detainees
battling the coronavirus, and it has even stopped performing
routine medical checks to track and treat transmissions of the
virus, despite statements to the contrary in the media.
According to the Plaintiffs, the jail has chosen to warehouse
detainees, who test positive for or exhibit symptoms of COVID-19 in
a building that has been condemned since 2018. Those individuals
are confined in their cells for almost 24 hours every day without
adequate access to the medical care they need. In short, the jail
forces the individuals in its care to endure unconstitutional
conditions that deny them the precautions and protections necessary
to mitigate against the risks of COVID-19, most critically the
ability to socially distance from those around them.
As a result of these alleged conditions, the Plaintiffs seek
various forms of injunctive relief, including an order immediately
releasing medically vulnerable prisoners to home confinement, and
an order directing the Defendants to improve their efforts to
protect prisoners against COVID-19 through social distancing, and
increased access to testing, masks, hand sanitizer, temperature
checks, and personal hygiene and cleaning supplies.
Critically, District Judge Brian A. Jackson finds, even as the
Plaintiffs allege that Defendants have "made no efforts to
implement the standard protective measures" against COVID-19, their
Amended Complaint details multiple protective measures implemented
by the Defendants since the onset of the pandemic. These include:
closing the prison to outside visitors beginning in mid-March 2020;
discontinuing all non-emergency off-site trips; reopening
previously condemned portions of the prison to serve as isolation
wings for prisoners testing positive for COVID-19; "quarantining"
the general population according to housing "line,"; preventing
prisoners from leaving their quarantined housing line except for
medical care or removal to a COVID-19 isolation wing; testing
prisoners for COVID-19; removing prisoners testing positive for
COVID-19 to an isolation wing, and allowing such prisoners to
return to the general population only after two successive negative
COVID-19 tests; providing meals to prisoners in their housing lines
rather than the mess hall; supplying masks to all prisoners or, in
the absence of masks, cloth bandanas; providing "limited cleaning
supplies" to prisoners; providing soap to prisoners; conducting
universal temperature checks beginning in April 2020; and providing
personal protective equipment to prison staff, including masks,
gloves, and body suits.
The Amended Complaint seeks recognition of a class consisting of
"all current and future persons held at the East Baton Rouge Parish
Prison during the course of the COVID-19 pandemic" ("Jail Class").
The Amended Complaint further seeks recognition of three
subclasses: (1) members of the Jail Class that have not yet been
convicted of an offense ("Pretrial Subclass"); (2) members of the
Jail Class that have been convicted of an offense and are serving
sentences ("Post-Conviction Subclass"); and (3) members of the Jail
Class older than 65 years or suffering from pre-existing medical
conditions putting them at higher risk of serious illness or death
due to COVID-19 ("Medically Vulnerable Subclass").
The Plaintiffs allege two distinct constitutional violations: (1)
the Defendants' failures to adequately protect prisoners against
the COVID-19 pandemic have denied members of the Post-Conviction
Subclass of their Eighth Amendment right to be free from cruel and
unusual punishment (Count II); and (2) the same failures have
denied members of the Pretrial Subclass of their Fourteenth
Amendment right to due process (Count I). Additionally, based on
the same alleged constitutional violations, the Medically
Vulnerable Subclass seeks release to home confinement pursuant to
the habeas corpus statute, 28 U.S.C. Section 2241 (Counts III and
IV).
The same day that they filed the Amended Complaint (May 27, 2020),
the Plaintiffs sought a temporary restraining order requiring the
Defendants to immediately release all members of the Medically
Vulnerable Subclass to home confinement. On July 3, 2020, after
multiple rounds of briefing and an evidentiary hearing, the Court
denied Plaintiffs' request for a TRO. In relevant part, the Court's
July 3 Order made a preliminary determination that the Plaintiffs'
claims were unlikely to succeed because the Defendants' response to
challenges posed by the COVID-19 pandemic belied the Plaintiffs'
claims of "subjective deliberate indifference."
Judge Jackson finds that the Defendants have clearly demonstrated
that they have taken measures to implement precautions to protect
inmates from the COVID-19 pandemic. This does not satisfy the
requisite state of mind indicative of subjective deliberate
indifference, which the Supreme Court has stated to be akin to
recklessness. Though the Petitioners may disagree whether these
measures are enough, EBRPP has taken the initiative, consulted with
professionals, devised, and incorporated safety protocols and
education for its inmates. While the Court does not rule on the
alleged Constitutional violations at this time, it finds that the
Petitioners have failed to demonstrate a substantial likelihood of
success on the merits of their claims.
On July 28, 2020, the Sheriff Defendants filed their Motion to
Dismiss. On October 23, 2020, the City/Parish followed with its
Motion. The arguments raised in each Motion are the same. First,
the Defendants seek dismissal under Rule 12(b)(1), contending that
the Court lacks jurisdiction because the Plaintiffs cannot show an
imminent risk of harm and thus cannot establish standing.
Additionally, the Defendants contend that any claims to immediate
release must be dismissed because the Plaintiffs have failed to
exhaust their administrative remedies, and because, generally, a
writ of habeas corpus under 28 U.S.C. Section 2241 is reserved for
cases alleging unconstitutional cause or duration of confinement,
and is not available to plaintiffs challenging unconstitutional
conditions of confinement.
In the alternative, the Defendants seek dismissal under Rule
12(b)(6), arguing that the Plaintiffs' constitutional claims fail
because Plaintiffs cannot show that they were subjected to "an
objectively intolerable risk of harm" resulting from the
Defendants' response to the COVID-19 pandemic, or that Defendants'
response exhibits "subjective deliberate indifference."
The Court determines that the Defendants' jurisdictional challenges
fail, but that the Plaintiffs' action must nonetheless be dismissed
because the allegations in the Plaintiffs' Amended Complaint defeat
their assertions of "subjective deliberate indifference."
When a complaint fails to state a claim, the Court should generally
give the plaintiff a chance to amend under Rule 15(a) before
dismissing the action with prejudice, unless it is clear that to do
so would be futile. See Great Plains Trust Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 329 (5th Cir.2002). The Court
determines that amendment would be futile in light of the
Plaintiffs' allegations defeating their assertions of the
Defendants' subjective deliberate indifference. The Court will
dismiss the Plaintiffs' action with prejudice, without granting
leave to amend.
Accordingly, the Defendants' Motions to Dismiss are granted, and
that the action is dismissed with prejudice.
The Plaintiffs' Motion for Class Certification is terminated.
The Court will issue a Final Judgment separately.
A full-text copy of the Court's Ruling and Order dated Feb. 4,
2021, is available at https://tinyurl.com/ywzwdbuz from Leagle.com.
ELAP SERVICES: Hospital Bid to Appoint Interim Class Counsel Tossed
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In the class action lawsuit captioned as South Broward Hospital
District v. ELAP Services, LLC, et al., Case No. 0:20-cv-61007
(S.D. Fla.), the Hon. Judge Raag Singhal entered an order denying
without prejudice the Plaintiff's Motion to Appoint Interim Class
Counsel.
The Court finds Plaintiff's Motion to be premature at this time.
Should a change in circumstances arise, such as filing of a motion
to certify class, another firm competing for lead counsel, or
another similar class action pending, Plaintiff may re-file its
Motion says Judge Singhal.
The nature of suit states Contract - Other Contract.
South Broward Hospital District. South Broward Hospital District,
doing business as Memorial Healthcare System, provides medical and
surgical hospital services.
ELAP functions as a fiduciary sponsor of self-funded health plans.
The Company provides plan sponsors legal advice to assist with DoL
and HIPAA compliance, offers access to an independent review
organization to assure medical compliance, and assumes
responsibility for final level appeal decisions.[CC]
ENDO INT'L: Court to Pick Bucks County as Lead in Pelletier Suit
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In the lawsuit captioned ALEXANDRE PELLETIER, Individually and On
Behalf of All Others Similarly Situated v. ENDO INTERNATIONAL PLC,
RAJIV KANISHKA LIYANAARCHCHIE DE SILVA, SUKETU P. UPADHYAY, AND
PAUL V. CAMPANELLI, Case No. 17-cv-5114 (E.D. Pa.), the U.S.
District Court for the Eastern District of Pennsylvania is prepared
to designate as the Lead Plaintiff the Bucks County Employees
Retirement Fund, and its principal counsel, Lawrence F. Stengel,
Esquire, as the Lead Counsel.
The Court will disqualify Park Employees' Annuity and Benefit Fund
of Chicago, and Bleichmar, Fonti & Auld LLP and will replace them
as lead plaintiff and class counsel.
At this litigation's core, the Plaintiffs allege that Endo and its
executives misled investors regarding the source and resilience of
record profits from their generics division while concealing
unsustainably non-competitive pricing behavior and government
investigations. The Plaintiffs argue that they, therefore, paid
artificially high prices for Endo shares and were injured when the
truth of Endo's behavior came to light, popping the pricing
bubble.
During three years of litigation and three supervising judges, the
prospective lead plaintiff, Park Employees' Annuity and Benefit
Fund of Chicago ("Park"), and class counsel Bleichmar, Fonti & Auld
LLP ("BLA"), had moved for class certification under Rule 23 of the
Federal Rules of Civil Procedure, but issues concerning their
leadership role must be resolved.
The present opinion will focus on Park and BLA's ("Park/BLA")
continuing to represent the prospective class. Throughout discovery
and class certification briefing, Park/BLA has acted in ways that
have undermined their important roles in this case and the class'
interests will be better served by new leadership taking the reins,
says District Judge Michael M. Baylson.
Four issues are paramount: representations about the timing of
Park's acquisition of Endo shares, use of questionably misleading
language in its papers to obscure the role of Park's investment
advisor as the sole decisionmaker in the Endo acquisition process,
Park/BLA have threatened the settlement of a related state court
class action under dubious legal theories, triggering a potentially
years-long delay in finalizing that settlement, and Park's
typicality that may damage the class' interests at trial.
To avoid the risk that Park/BLA' damaged credibility or potential
inadequacy could harm the class, the Court will disqualify Park and
BLA and will replace them as lead plaintiff and class counsel.
Alexandre Pelletier filed the original complaint against Endo in
November 2017 originally overseen by Judge Padova. In January 2018,
the case was transferred to Judge Savage, who was overseeing
another securities class action against Endo. Pursuant to the
Private Securities Litigation Reform Act ("PSLRA"), Judge Savage
found Park to be the appropriate lead plaintiff based on the
PSLRA's preference for institutional investors and Park's
significant financial losses, comparable to those of the
alternative lead plaintiffs. He simultaneously appointed BLA as
class counsel. His opinion assumed Park/BLA' adequacy and
typicality.
Park/BLA filed an amended complaint on behalf of the class,
alleging two counts: (1) price-fixing conspiracy and (2) misleading
stockholders through material misrepresentations and/or omissions.
The case was then reassigned back to Judge Padova, who recused
himself, leading to the case's assignment to this Court in
September 2019. Following briefing and oral arguments on Endo's
Rule 12 motion, the Court dismissed price-fixing claims against
Endo in February 2020, but otherwise denied the motion to dismiss
and permitted the Plaintiffs' other claim to proceed.
As Park/BLA initially proposed the class period, it would include
any Endo stock purchasers for a 729-day period. Park owned legally
relevant Endo shares for about one-seventh of that period. What is
more, it is now clear that it acquired those shares only after the
first corrective disclosure on November 3, 2016, and it continued
to acquire more shares throughout the class period.
Decision
Park/BLA have raised sufficient red flags here that the Court must
order their replacement in this litigation, for the benefit of the
alleged class, Judge Baylson opines. Absent class members deserve
adequate representation, which Park/BLA had failed to provide.
Replacement of the class' leadership will allow the litigation to
proceed with better leadership so that if a class is certified, it
will have a better chance of enjoying its day in court. The Court
is not making any predictions of how the claim of liability will be
determined.
Judge Baylson notes that it is not impossible to determine where
this behavior originated, whether from attorney or client. Nor does
it matter in this context, where the lead plaintiff and the lead
counsel are, in many ways, responsible for each other's conduct.
Both bear responsibility, and both should be replaced, Judge
Baylson holds.
Most significantly, the need to replace Park/BLA is clear based on
their representations to this Court, many of which were incorrect
or misleading, Judge Baylson opines. Park/BLA clearly failed to
ascertain the exact timing of Park's acquisition and misrepresented
that lack of knowledge as if it were a certainty. More seriously,
an inference arises they deliberately misled this Court as to
purchase timing. Either raises concerns about Park/BLA' ability to
adequately represent the class.
Furthermore, Park/BLA attempted to suppress discovery in other
jurisdictions to secure facts that this Court held to be relevant
and producible, away from this Court's supervision. Park/BLA's
attempt to do so without informing the local courts of this Court's
prior ruling on the matter--even trying to cover up the explicit
ruling of the Court--is very serious lapse of candor, if not worse,
Judge Baylson points out.
Park/BLA also obfuscated the role of Lombardia as the sole
decisionmaker in Park's stock purchases. This distinction is
legally relevant--a plaintiff who purchases shares must show that
it relied on the defendant's misrepresentations or omissions
(through a reliance on the market theory or otherwise); one that
relies on a third-party advisor must show that its investment
advisor relied on those misrepresentations or omissions, Judge
Baylson holds, citing In re Advance Auto Parts, Inc. Sec. Litig.,
No. 18-212, 2020 WL 6544637, at *5 (D. Del. Nov. 6, 2020).
Park/BLA' actions have prevented the state court litigants from
receiving their desired class action settlements, which could
result in years of delay, Judge Baylson notes. To the extent that
Park/BLA' most recent proposed definition removes any overlap and
permits execution of the settlement in Public Employees' Retirement
System of Mississippi v. Endo, et al. ("MissPERS"), Case No.
2017-02081-MJ (Pa. Ct. Com. Pl., Mar. 3, 2020), the Court is
concerned that Park/BLA failed to pursue this step on their own
accord months ago, for the good of the MissPERS class members.
Indeed, Park/BLA informed the Court that they will not dismiss its
appeal at least until this Court certifies a class definition,
which could take months to resolve.
Park/BLA briefs regarding the MissPERS litigation shows evidence of
the same fundamental and crucial effort to mislead judges in
different courthouses, just as Park/BLA did not tell other judges
about this Court's ruling on discoverability, Park/BLA told this
Court something completely contrary to the state court's holding as
to the scope of the MissPERS settlement's release.
Finally, Judge Baylson holds, Park's purchase timing raises
concerns of conflict with pre-disclosure purchasers, which,
combined with the Court's other reservations about Park's
representations made through its counsel, justify replacing Park as
lead plaintiff. Where a lead plaintiff made its initial acquisition
after a corrective disclosure, it may have a change in incentives,
including to minimize the price impact of pre-purchase disclosures
and maximize recovery on its own later-bought shares. This
incentive could be stronger in cases such as this one, where there
are very few alleged corrective disclosures over which loss
causation is divided.
Considering the totality of circumstances and in light of the
concerns with Park/BLA' continued service in this litigation, the
Court will remove them and reopen the lead plaintiff and lead
counsel appointment.
Based on filings which took place in late December of 2020, and the
hearing which took place on January 21, 2021, this Court is
prepared to designate as Lead Plaintiff the Bucks County Employees
Retirement Fund, and its principal counsel, Lawrence F. Stengel,
Esquire, as Lead Counsel.
The Court will also designate individual clients of the Pomerantz
firm, Alexandre Pelletier, Nathan Joseph Dole, and Lane(?) A.
Wingard, as the co-lead Plaintiffs and the Pomerantz firm as the
co-lead Counsel.
The Court will designate another firm, located in Philadelphia, to
work with the others.
The Court will require the firm of Bleichmar, Fonti & Auld to
cooperate fully with new Lead Counsel, including full access to its
attorney-work product, documents and electronically stored
information related to this case, which it secured while serving as
lead counsel. Prompt cooperation will be essential in reviewing any
fee petition that may be filed by the Bleichmar, Fonti & Auld firm
at the conclusion of the case, assuming there is a settlement or a
recovery on behalf of the class.
In this connection, the Court discloses two short telephone
conversations with Mr. Stengel in determining Mr. Stengel's
availability to serve as the Lead Counsel, and that he would
undertake the responsibility along with other law firms designated
as co-lead counsel. The Court envisions Mr. Stengel being in charge
of making assignments for additional discovery, briefing, strategy,
and any settlement discussions, and if necessary, a trial. However,
the bulk of the day-to-day work may be assigned to the other firms
designated as co-lead Counsel.
The Court notes that it is selecting three additional individuals
represented by the Pomerantz firm as co-lead Plaintiffs because,
based on their disclosures to the Court, they were actively
involved personally, or through their personal relationships with
investment advisors and stock brokers, and making decisions for the
purchase or sale of Endo stock. Notwithstanding that Congress
expressed a preference for institutional investors serving as lead
plaintiffs, the Court believes that having an institutional
investor, such as the Bucks County Fund (the beneficiaries of which
are located within this district), as the Lead Plaintiff, but three
individuals serving as co-lead Plaintiffs, would provide a broad
range of testimony going to the merits of the claim. All of this is
stated without prejudice to the defenses of Endo.
The Court also notes that, although it may be unusual for a
district judge to look after the interests of a putative class,
this is required by the PSLRA and the discussions with Mr. Stengel
were necessary to establish the appropriate leadership in the case,
given the very unusual set of circumstances discussed above.
Knowing Mr. Stengel for many years, the Court is quite sure that
his performance as the Lead Counsel will be a benefit to a class,
whether win, lose, or draw.
A full-text copy of the Court's Memorandum dated Feb. 4, 2021, is
available at https://tinyurl.com/3ff24mnr from Leagle.com.
EXECUTIVE CAR RENTAL: Jardine Seeks Unpaid Overtime Under FLSA
--------------------------------------------------------------
KEVIN JARDINE v. EXECUTIVE CAR RENTAL, Case No.
3:21-cv-00190-TKW-EMT (N.D. Fla., Feb. 2, 2021) is a class action
brought by the Plaintiff seeking unpaid overtime pursuant to the
Fair Labor Standards Act and relief pursuant to Florida Statutes
448.08, Accrued and Unpaid Wages and Commission.
Mr. Jardine contends that he was not paid overtime for hours worked
over 40 per week, even though he was a "non-exempt" employee, and
thus entitled to such wages under federal law.
The Plaintiff was employed by the Defendant as a counter agent
preceding the filing of this complaint and performed work for the
Defendant in the State of Florida and in the Northern District of
Florida.
The Defendant operates a commercial rental car company.[BN]
The Plaintiff is represented by:
Clayton M. Connors, Esq.
THE LAW OFFICES OF CLAYTON M. CONNORS, PLLC.
4400 Bayou Blvd., Suite 32A
Pensacola, FL 32503
Telephone: (850) 473-0401
Facsimile: (850) 473-1388
E-mail: cmc@westconlaw.com
EXPRESS SCRIPTS: Perez Suit to File New Class Status Bid by Feb. 19
-------------------------------------------------------------------
In the class action lawsuit captioned as Diane Perez v. Express
Scripts, et al., Case No. 2:19-cv-07752-CCC-ESK (D.N.J.), the Hon.
Judge Edward S. Skiel entered an order granting the Plaintiff's
motion to withdraw the pending motion for conditional certification
and file a new motion for conditional certification by February 19,
2021.
The Plaintiff filed the motion for class certification was filed on
December 30, 2020. Class and conditional certification discovery
continued after the filing of the motion, the deadline for which is
March 2, 2021.
The suit is a putative collective and class action filed pursuant
to the Fair Labor Standards Act (FLSA) and the New Jersey Wage and
Hour Law (NJWHL).
Express Scripts is a pharmacy benefit management organization. In
2017 it was the 22nd-largest company in the United States by total
revenue as well as the largest pharmacy benefit management
organization in the United States.
A copy of the Plaintiff's motion to certify class dated Feb. 2,
2020 is available from PacerMonitor.com at https://bit.ly/2Zb2wbD
at no extra charge.[CC]
The Plaintiff is represented by:
Roosevelt N. Nesmith, Esq.
LAW OFFICE OF ROOSEVELT N. NESMITH, LLC
363 Bloomfield Avenue, Suite 2C
Montclair, NJ 07042
E-mail: roosevelt@nesmithlaw.com
FADA GROUP: New Jersey Court Dismisses Lin Suit Without Prejudice
-----------------------------------------------------------------
The U.S. District Court for the District of New Jersey granted in
part and denied in part the Defendants' motion to dismiss the
lawsuit captioned MINSHOU LIN, et al., Plaintiffs v. FADA GROUP
INC. d/b/a SOGO, et al., Defendants, Case No. 20-5942 (D.N.J.).
The putative collection and class action involves allegations that
the Defendants failed to pay the Plaintiffs and similarly situated
employees overtime in violation of the Fair Labor Standards Act
("FLSA") and the New Jersey Wage and Hour Law ("NJWHL").
Defendant Fada operates a restaurant where Plaintiffs Minshou Lin
and Huotai Luo were employed. The Plaintiffs allege that the
Defendants knowingly failed to pay them, and similarly situated
employees, overtime wages.
The Plaintiffs filed their two-count Complaint, asserting overtime
violations against Defendants under the FLSA (Count One) and the
NJWHL (Count Two). They also seek to bring claims on behalf of a
proposed class of similarly situated, non-exempt employees who also
were not paid overtime.
The Defendants filed the Motion seeking to dismiss the Plaintiffs'
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The Plaintiffs filed opposition to which the Defendants
replied. The Court reviewed all submissions made in support and in
opposition to the Motion, and considered the Motion without oral
argument pursuant to L. Civ. R. 78.1(b).
The Defendants first seek to dismiss the claims as to Lin because
of the executive employee exemption. The FLSA requires employers to
pay overtime compensation for a non-exempt employee's work that is
over forty hours per week. However, 29 U.S.C. Section 213 provides
that "any employee employed in a bona fide executive,
administrative, or professional capacity" is exempt from the
overtime requirement.
In arguing that Lin is an executive employee, the Defendants rely
on allegations that do not appear in the Complaint. Namely, the
Defendants contend that during his employment, Lin was promoted to
kitchen manager. As kitchen manager, Lin allegedly "oversaw and
managed the entire kitchen staff." They also maintain that Lin had
the authority to hire and fire employees.
The Defendants' factual allegations regarding Lin's role as kitchen
manager are not pled in the Complaint. Further, the Defendants do
not contend that they are a matter of public record or that they
appear in any document that is integral to or explicitly relied
upon in the Complaint. Thus, the Court does not consider this
information as to the motion to dismiss.
Consequently, as pled, Lin is not exempt from the FLSA or NJWHL's
overtime requirements, District Judge John Michael Vazquez holds.
The Defendants' motion is denied on these grounds.
Next, the Defendants argue that the Complaint must be dismissed
because the Plaintiffs fail to plead that they were not paid
overtime as required by the FLSA and the NJWHL. The Plaintiffs
plead that they regularly worked more than forty hours a week. But
while the Plaintiffs allege that they were not paid overtime, the
Complaint only establishes the Plaintiffs' weekly gross pay, Judge
Vazquez notes.
The Plaintiffs do not plead what their hourly rate was, and without
this information, the Court cannot determine whether they were paid
time and a half for the overtime hours that the Plaintiffs
regularly worked. Without this critical information, the
Plaintiffs' failure to pay overtime claims are conclusory and not
plausible, Judge Vazquez opines. Therefore, the Plaintiffs fail to
state a claim, and their Complaint is dismissed.
For the reasons stated in the Opinion, and for good cause shown,
the Defendants' motion to dismiss is granted in part and denied in
part. Accordingly, the Plaintiffs' Complaint is dismissed for
failure to state a claim. The dismissal is without prejudice and
the Plaintiffs will have 30 days to file an amended complaint that
cures the deficiencies noted. If they do not file an amended
pleading within that time, the Complaint will be dismissed with
prejudice. An appropriate Order accompanies the Opinion.
A full-text copy of the Court's Opinion dated Feb. 4, 2021, is
available at https://tinyurl.com/sszsr5ds from Leagle.com.
FEDEX CORP: Wins Bid to Dismiss Consolidated Securities Suit
------------------------------------------------------------
The U.S. District Court for the Southern District of New York
granted with prejudice the Defendants' motion to dismiss the
consolidated lawsuit titled IN RE FEDEX CORP. SECURITIES
LITIGATION, Master File No. 1:19-cv-05990 (RA), Case No.
1:19-cv-06183 (RA), Case No. 1:19-cv-08723 (RA) (S.D.N.Y.).
Lead Plaintiff City of Bradford Metropolitan District Council as
administering authority to the West Yorkshire Pension Fund ("West
Yorkshire" or "Plaintiff") brings the putative class action against
FedEx and several current and former officers of the Company,
alleging that the Defendants committed securities fraud in
violation of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934 and Securities and Exchange Commission Rule 10(b)-5.
Specifically, the Plaintiff alleges that, from September 19, 2017
until December 18, 2018, the Defendants made numerous statements
that misled the market as to the financial impact of a June 2017
Russian cyberattack (NotPetya virus) on FedEx's recently acquired
European shipping subsidiary, TNT Express Services B.V.
The Complaint alleges that, throughout the Class Period, FedEx
misrepresented the status of its recovery from the NotPetya
cyberattack. According to the Plaintiff, the Company's statements
on the subject were materially misleading because they failed to
disclose: (1) that TNT's international service was "largely
disabled" for six months due to the virus; (2) that TNT was losing
a significant proportion of its high-margin customers due to its
failure to operate internationally; and (3) that NotPetya had
substantially delayed, rather than accelerated, the integration of
TNT into FedEx Express.
The Plaintiff seeks to represent all persons and entities, who
purchased FedEx common stock during the Class Period, and who were
damaged thereby.
The Defendants moved to dismiss the complaint pursuant to Rules
8(a), 9(b), and 12(b)(6) of the Federal Rules of Civil Procedure,
and the Private Securities Litigation Reform Act of 1995 ("PSLRA"),
15 U.S.C. Section 78u-4. The Defendants contend that the complaint
fails to allege sufficient facts to demonstrate (1) that the
Defendants made any actionable misrepresentations or omissions or
(2) a strong inference that Defendants acted with the requisite
scienter.
District Judge Ronnie Abrams notes that to establish that the
Defendants acted with the requisite scienter--i.e., that they knew,
or recklessly disregarded, the falsity or misleading nature of
their public statements--the Complaint alleges that the Individual
Defendants "were active and culpable participants in the fraudulent
scheme," by virtue of their "receipt of information reflecting the
true facts regarding FedEx," and their control over the public
disclosure of the allegedly false statements.
According to the Plaintiff, the Individual Defendants were "aware
of key facts related to the Company's operations" that contradicted
public statements about the lingering effects of NotPetya because
of their positions as executive officers of FedEx, and because
"FedEx's senior management, including the Individual Defendants,
were in regular communication with TNT executives in Europe and
took an active role in the integration of TNT into FedEx Express
and the recovery efforts."
The Defendants principally contend that Plaintiff fails to
adequately plead the falsity of FedEx's statements about its
recovery from NotPetya because those same statements were
accompanied by numerous disclosures about the difficulties faced
and expenses incurred by FedEx in that process. Having considered
the documents that the Complaint incorporates by reference, the
Court agrees.
Even accepting the Plaintiff's allegations as true, the Court
concludes that the challenged statements, when considered in their
full context, would not mislead a reasonable investor as to
NotPetya's effect on the Company or as to the status of the TNT
integration. FedEx's numerous disclosures during the Class Period
belie the Plaintiff's contention that FedEx "belatedly disclosed to
the market the damage the NotPetya virus had caused to the Company
and the FedEx Express/TNT segment" in December 2018.
According to the Court's Opinion & Order, the "positive statements
about the Company and its prospects" can be grouped into four
categories: 1) references to the operating income improvement
target; 2) statements regarding FedEx's progress in restoring TNT
operations in the wake of NotPetya; 3) reassurances about the
retention of TNT's customer base; and 4) statements concerning the
pace and cost of TNT integration.
The Court concludes that the Complaint fails to plausibly allege
that any of these four categories of statements were false or
materially misleading when made. It further concludes that the
Complaint does not plead sufficient facts to raise a strong
inference of scienter.
Assuming, without deciding, that the first set of statements is
actionable, the Court also concludes, among other things, that the
Plaintiff has not alleged sufficient facts to demonstrate that any
of the challenged representations were false or misleading when
made. Because falsity and scienter are required elements of all the
causes of action brought by the Plaintiff, the Defendants' motion
to dismiss the Complaint is granted.
The Plaintiff also requests leave to amend the Complaint in the
event the Court dismisses the action for failure to state a claim.
In this case, the Court concludes that amendment would be futile.
When pressed at oral argument as to what amendments would be made
to the Complaint were the Court to adopt the Defendants' arguments
for dismissal, the Plaintiff's counsel responded only in vague
terms about the possibility of clarifying or adding details to the
allegations that would not change the outcome, Judge Abrams
states.
Absent the addition of new facts that would contradict the
Defendants' public statements, Judge Abrams points out that
Plaintiff cannot establish that the four categories of statements
were false within the meaning of the securities laws. When assessed
alongside FedEx's numerous and continuous disclosures about
NotPetya, it is not plausible that the statements in question were
misleading to a reasonable investor. Leave to amend is, therefore,
denied as futile.
For these reasons, the Defendants' motion to dismiss the
Plaintiff's complaint is granted with prejudice. The Clerk of Court
is directed to terminate item 80 on the docket and close this
case.
A full-text copy of the Court's Opinion & Order dated Feb. 4, 2021,
is available at https://tinyurl.com/ybvhr725 from Leagle.com.
FLO HEALTH: Faces Frasco Class Suit Over Data Disclosure Practices
------------------------------------------------------------------
ERICA FRASCO, individually and on behalf of all others similarly
situated v. Flo Health, Inc., a Delaware corporation, Case No.
3:21-cv-00757-SK (N.D. Cal., Jan. 29, 2021) alleges that Flo
Health's data disclosure practices constitute an extreme invasion
of the Plaintiff and Class members' right to privacy and violates
federal and state common law.
Flo Health owns and develops the Flo Period & Ovulation Tracker
("Flo App" or "App"), one of the most popular health and fitness
mobile applications. The Flo App purports to use artificial
intelligence to provide advice and assistance related to women's
health, such as by serving as an ovulation calendar, period
tracker, pregnancy guide, and wellness and lifestyle tracker.
Flo Health touts that its app is the "No. 1 mobile product for
women's health." The Flo App has been installed more than 165
million times and has over 38 million monthly active users. The App
has also been rated the No. 1 period tracker in the United States
based on active audience and as the No. 1 most downloaded health
app in the Apple App Store.
In order to use the Flo App, millions of users -- including the
Plaintiff -- provide Flo Health with personally identifying
information, along with intimate details about their sexual health,
menstruation cycles, gynecological health, and physical well-being
through a series of "survey questions." Users also provided
intimate, personal health details in response to probing survey
questions about health and wellness. By providing this information,
Flo Health claims to predict ovulation, aid in pregnancy and
childbirth, and provide lifestyle and wellness suggestions,
allowing users to "take full control of their health."
Plaintiff and Class members provided this information to Flo Health
based on the company's repeated assurances that their intimate
health data would remain protected and confidential and would not
be disclosed to third parties.
Flo Health's privacy policies and public assurances have claimed --
time and time again -- that Flo Health would not share users'
intimate health data with anyone. Flo Health's Website touts that
"privacy in the digital age is of utmost importance. Flo provides a
secure platform for millions of women globally."
The Plaintiff contends that these assurances were patently false.
In February 2019, a report published by the Wall Street Journal
revealed that, despite Flo Health's promises that it would not
share intimate health data, Flo Health had spent years disclosing
the intimate health data that users entered into the Flo App to
dozens of third parties, including major advertising companies such
as Facebook, Inc. ("Facebook") and Google, LLC ("Google"), who were
free to use this data for their own purposes. If Plaintiff and
Class members had known that Flo Health would share their intimate
health data, they would not have used the Flo App, the complaint
says.
Flo Health began as a startup in 2015 owned by a group of mobile
app developers based in Minsk, Belarus. That same year, the company
released the Flo App, the first mobile application to make use of
artificial intelligence to accurately predict reproductive
cycles.[BN]
The Plaintiff is represented by:
James M. Wagstaffe, Esq.
Frank Busch, Esq.
WAGSTAFFE, VON LOEWENFELDT,
BUSCH & RADWICK LLP
100 Pine Street, Suite 725
San Francisco, CA 94111
Telephone: (415) 357-8900
Facsimile: (415) 357-8910
E-mail: wagstaffe@wvbrlaw.com
busch@wvbrlaw.com
- and -
Christian Levis, Esq.
Amanda Fiorilla, Esq.
LOWEY DANNENBERG, P.C.
44 South Broadway, Suite 1100
White Plains, NY 10601
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
E-mail: clevis@lowey.com
afiorilla@lowey.com
- and -
Jonathan Gardner, Esq.
Carol C. Villegas, Esq.
Michael P. Canty, Esq.
Melissa H. Nafash, Esq.
Ross M. Kamhi, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
E-mail: jgardner@labaton.com
cvillegas@labaton.com
mcanty@labaton.com
mnafash@labaton.com
rkamhi@labaton.com
FOGO DE CHAO: Garcia-Alvarez Labor Suit Removed to E.D. Texas
-------------------------------------------------------------
The case styled CHRISTIAN GARCIA-ALVAREZ, individually and on
behalf of all others similarly situated v. FOGO DE CHAO
CHURRASCARIA (PITTSBURGH) LLC, FOGO DE CHAO CHURRASCARIA (KING OF
PRUSSIA) LLC, FOGO DE CHAO CHURRASCARIA (PHILADELPHIA) LLC, FOGO DE
CHAO CHURRASCARIA (PHOENIX) LLC, FOGO DE CHAO CHURRASCARIA (CA
HOLDINGS) LLC, FOGO DE CHAO CHURRASCARIA (CALIFORNIA) LLC, FOGO DE
CHAO CHURRASCARIA (EL SEGUNDO) LLC, FOGO DE CHAO CHURRASCARIA
(IRVINE) LLC, FOGO DE CHAO CHURRASCARIA (LOS ANGELES) LLC, FOGO DE
CHAO CHURRASCARIA (SAN DIEGO) LLC, FOGO DE CHAO CHURRASCARIA (SAN
FRANCISCO) LLC, FOGO DE CHAO CHURRASCARIA (SAN JOSE) LLC, FOGO DE
CHAO CHURRASCARIA (DENVER) LLC, FOGO DE CHAO CHURRASCARIA (PARK
MEADOW) LLC, FOGO DE CHAO CHURRASCARIA (WASHINGTON, D.C.) LLC, FOGO
DE CHAO CHURRASCARIA (JACKSONVILLE) LLC, FOGO DE CHAO CHURRASCARIA
(MIAMI) LLC, FOGO DE CHAO CHURRASCARIA (ORLANDO) LLC, FOGO DE CHAO
CHURRASCARIA (SUNRISE FLORIDA) LLC, FOGO DE CHAO CHURRASCARIA
(ATLANTA) LLC, FOGO DE CHAO CHURRASCARIA (DUNWOODY ATLANTA) LLC,
FOGO DE CHAO CHURRASCARIA (NAPERVILLE) LLC, FOGO DE CHAO
CHURRASCARIA (CHICAGO) LLC, FOGO DE CHAO CHURRASCARIA (OAK BROOK
ILLINOIS) LLC, FOGO DE CHAO CHURRASCARIA (OLD ORCHARD) LLC, FOGO DE
CHAO CHURRASCARIA (ROSEMONT) LLC, FOGO DE CHAO CHURRASCARIA
(INDIANAPOLIC) LLC, FOGO DE CHAO CHURRASCARIA (NEW ORLEANS) LLC,
FOGO DE CHAO CHURRASCARIA (BALTIMORE) LLC, FOGO DE CHAO
CHURRASCARIA (BETHESDA) LLC, FOGO DE CHAO CHURRASCARIA (BOSTON)
LLC, FOGO DE CHAO CHURRASCARIA (BURLINGTON) LLC, FOGO DE CHAO
CHURRASCARIA (TROY) LLC, FOGO DE CHAO CHURRASCARIA (MINNEAPOLIS)
LLC, FOGO DE CHAO CHURRASCARIA (KANSAS CITY) LLC, FOGO DE CHAO
CHURRASCARIA (ST. LOUIS) LLC, FOGO DE CHAO CHURRASCARIA (LAS VEGAS)
LLC, FOGO DE CHAO CHURRASCARIA (SUMMERLIN) LLC, FOGO DE CHAO
CHURRASCARIA (LONG ISLAND) LLC, FOGO DE CHAO 53RD STREET, NEW YORK
LLC, FOGO DE CHAO CHURRASCARIA (WHITE PLAINS) LLC, FOGO DE CHAO
CHURRASCARIA (PORTLAND) LLC, FOGO DE CHAO CHURRASCARIA (AUSTIN)
LLC, FOGO DE CHAO CHURRASCARIA (LEGACY PLANO) LLC, FOGO DE CHAO
CHURRASCARIA (DALLAS) LLP, FOGO DE CHAO CHURRASCARIA (DALLAS) LLC,
FOGO DE CHAO (HOLDINGS) INC., FOGO DE CHAO CHURRASCARIA (HOLDINGS)
LLC, FOGO DE CHAO CHURRASCARIA (HOUSTON) LLC, FOGO DE CHAO
CHURRASCARIA (SAN ANTONIO) LLC, FOGO DE CHAO CHURRASCARIA (TEXAS
GP) LLC, FOGO DE CHAO CHURRASCARIA (TYSONS) LLC, and FOGO DE CHAO
CHURRASCARIA (BELLEVUE) INC., Case No. 2:20-cv-01345, was removed
from the U.S. District Court for the Western District of
Pennsylvania to the U.S. District Court for the Eastern District of
Texas on February 9, 2021.
The Clerk of Court for the Eastern District of Texas assigned Case
No. 4:21-cv-00124-ALM to the proceeding.
The case arises from the Defendants' alleged violations of the Fair
Labor Standards Act and the Pennsylvania Minimum Wage Act by
failing to pay the Plaintiff and all others similarly situated
restaurant workers the legally required tipped minimum wage.
Fogo De Chao Churrascaria (Pittsburgh) LLC is a restaurant operator
based in Pittsburgh, Pennsylvania.
Fogo De Chao Churrascaria (King of Prussia) LLC is a restaurant
operator based in Pennsylvania.
Fogo De Chao Churrascaria (Philadelphia) LLC is a restaurant
operator based in Philadelphia, Pennsylvania.
Fogo De Chao Churrascaria (Phoenix) LLC is a restaurant operator
based in Phoenix, Arizona.
Fogo De Chao Churrascaria (CA Holdings) LLC is a restaurant
operator based in Plano, Texas.
Fogo De Chao Churrascaria (California) LLC is a restaurant operator
based in California.
Fogo De Chao Churrascaria (El Segundo) LLC is a restaurant operator
based in El Segundo, California.
Fogo De Chao Churrascaria (Irvine) LLC is a restaurant operator
based in Irvine, California.
Fogo De Chao Churrascaria (Los Angeles) LLC is a restaurant
operator based in Los Angeles, California.
Fogo De Chao Churrascaria (San Diego) LLC is a restaurant operator
based in San Diego, California.
Fogo De Chao Churrascaria (San Francisco) LLC is a restaurant
operator based in San Francisco, California.
Fogo De Chao Churrascaria (San Jose) LLC is a restaurant operator
based in San Jose, California.
Fogo De Chao Churrascaria (Denver) LLC is a restaurant operator
based in Denver, Colorado.
Fogo De Chao Churrascaria (Park Meadow) LLC is a restaurant
operator based in Park Meadow, Colorado.
Fogo De Chao Churrascaria (Washington, D.C.) LLC is a restaurant
operator based in Washington, D.C.
Fogo De Chao Churrascaria (Jacksonville) LLC is a restaurant
operator based in Jacksonville, Florida.
Fogo De Chao Churrascaria (Miami) LLC is a restaurant operator
based in Miami, Florida.
Fogo De Chao Churrascaria (Orlando) LLC is a restaurant operator
based in Orlando, Florida.
Fogo De Chao Churrascaria (Sunrise Florida) LLC is a restaurant
operator based in Florida.
Fogo De Chao Churrascaria (Atlanta) LLC is a restaurant operator
based in Atlanta, Georgia.
Fogo De Chao Churrascaria (Dunwoody Atlanta) LLC is a restaurant
operator based in Atlanta, Georgia.
Fogo De Chao Churrascaria (Naperville) LLC is a restaurant operator
based in Naperville, Illinois.
Fogo De Chao Churrascaria (Chicago) LLC is a restaurant operator
based in Chicago, Illinois.
Fogo De Chao Churrascaria (Oak Brook Illinois) LLC is a restaurant
operator based in Illinois.
Fogo De Chao Churrascaria (Old Orchard) LLC is a restaurant
operator.
Fogo De Chao Churrascaria (Rosemont) LLC is a restaurant operator
based in Rosemont, Illinois.
Fogo De Chao Churrascaria (Indianapolic) LLC is a restaurant
operator based in Indiana.
Fogo De Chao Churrascaria (New Orleans) LLC is a restaurant
operator based in New Orleans, Louisiana.
Fogo De Chao Churrascaria (Baltimore) LLC is a restaurant operator
based in Baltimore, Maryland.
Fogo De Chao Churrascaria (Bethesda) LLC is a restaurant operator
based in Bethesda, Maryland.
Fogo De Chao Churrascaria (Boston) LLC is a restaurant operator
based in Boston, Massachusetts.
Fogo De Chao Churrascaria (Burlington) LLC is a restaurant operator
based in Burlington, New Jersey.
Fogo De Chao Churrascaria (Troy) LLC is a restaurant operator based
in Troy, New Jersey.
Fogo De Chao Churrascaria (Minneapolis) LLC is a restaurant
operator based in Minneapolis, Minnesota.
Fogo De Chao Churrascaria (Kansas City) LLC is a restaurant
operator based in Kansas City.
Fogo De Chao Churrascaria (St. Louis) LLC is a restaurant operator
based in St. Louis, Minnesota.
Fogo De Chao Churrascaria (Las Vegas) LLC is a restaurant operator
based in Las Vegas, Nevada.
Fogo De Chao Churrascaria (Summerlin) LLC is a restaurant operator
based in Summerlin, Nevada.
Fogo De Chao Churrascaria (Long Island) LLC is a restaurant
operator based in Long Island, New York.
Fogo De Chao 53rd Street, New York LLC is a restaurant operator
based in New York.
Fogo De Chao Churrascaria (White Plains) LLC is a restaurant
operator based in White Plains, New York.
Fogo De Chao Churrascaria (Portland) LLC is a restaurant operator
based in Portland, Oregon.
Fogo De Chao Churrascaria (Austin) LLC is a restaurant operator
based in Austin, Texas.
Fogo De Chao Churrascaria (Legacy Plano) LLC is a restaurant
operator based in Plano, Texas.
Fogo De Chao Churrascaria (Dallas) LLP is a restaurant operator
based in Dallas, Texas.
Fogo De Chao Churrascaria (Dallas) LLC is a restaurant operator
based in Dallas, Texas.
Fogo De Chao (Holdings) Inc. is a restaurant holding company.
Fogo De Chao Churrascaria (Holdings) LLC is a restaurant holding
company.
Fogo De Chao Churrascaria (Houston) LLC is a restaurant operator
based in Houston, Texas.
Fogo De Chao Churrascaria (San Antonio) LLC is a restaurant
operator based in San Antonio, Texas.
Fogo De Chao Churrascaria (Texas GP) LLC is a restaurant operator
based in Texas.
Fogo De Chao Churrascaria (Tysons) LLC is a restaurant operator
based in Tysons, Virginia.
Fogo De Chao Churrascaria (Bellevue) Inc. is a restaurant operator
based in Bellevue, Washington. [BN]
The Plaintiff is represented by:
Joshua P. Geist, Esq.
GOODRICH & GEIST, P.C.
3634 California Ave
Pittsburgh, PA 15212
Telephone: (412) 766-1455
Facsimile: (412) 766-0300
E-mail: josh@goodrichandgeist.com
- and –
Carlos V. Leach, Esq.
THE LEACH FIRM, P.A.
631 S. Orlando Ave, Suite 300
Winter Park, FL 32789
Telephone: (407) 574-4999
Facsimile: (833) 423-5864
E-mail: cleach@theleachfirm.com
- and –
Richard Celler, Esq.
RICHARD CELLER LEGAL, P.A.
10368 W. SR 84, Suite 103
Davie, FL 33314
Telephone: (866) 344-9243
Facsimile: (954) 337-2771
E-mail: richard@floridaovertimelawyer.com
FORD MOTOR: Still Faces Class Action Over Fuel Economy Testing
--------------------------------------------------------------
Associated Press reports that the U.S. Justice Department and state
of California have ended investigations into Ford's gas mileage and
emissions certification processes.
Ford says in its annual report filed with the Securities and
Exchange Commission on Feb. 5 that the DOJ and the California Air
Resources Board told the company they don't intend to take further
action.
But the filing says probes by the U.S. Environmental Protection
Agency and its Canadian counterpart are continuing.
In 2018 a group of Ford employees reported possible problems with a
mathematical model used to calculate pollution and mileage,
prompting Ford to hire an outside firm to run tests. In 2019 Ford
launched an investigation into whether it overstated gas mileage
and understated emissions from a wide range of vehicles. The
company disclosed the matter to the EPA and CARB.
The Justice Department later opened the criminal investigation.
Ford said in a statement on Feb. 5 that the DOJ and CARB findings
are "consistent with the company's own investigation and conclusion
that we appropriately completed our certification processes."
Ford declined to releasing findings from its own investigation and
said it has not changed any fuel economy ratings as a result.
Ford faces a class-action lawsuit from owners who claim Ford
"cheated on its fuel economy testing on some of its best-selling
and most popular trucks" and said the issue affected over a million
Ford truck owners.
The lawsuit claims that "independent testing conducted on Ford
F-150 and Ford Ranger vehicles has vindicated the concerns of both
consumers and Ford's own employees: Ford did not follow appropriate
coastdown testing procedures, and instead disclosed inaccurate
resistance figures to increase the MPG Rating of its F-150 and
Ranger vehicles." Coastdown testing measures the effects of wind
and road resistance on a coasting vehicle.
The lawsuit said "extra fuel costs for all 2018 and 2019 F-150s"
would total approximately $2.32 billion for city driving, $2.09
billion highway, and $1.9 billion combined."
Ford declined to comment on the lawsuit on Feb. 5 but argues in
court papers it should be dismissed, saying owners are "implausibly
claiming that Ford had a duty to disclose the 'true fuel economy'
for the subject vehicles, as if such a figure actually exists."
[GN]
FORTUNE MEDIA: Blind Users Can't Access Website, Sanchez Claims
---------------------------------------------------------------
CHRISTIAN SANCHEZ, on behalf of himself and all others similarly
situated v. FORTUNE MEDIA (USA) CORPORATION, Case No. 1:21-cv-00938
(S.D.N.Y., Feb. 2, 2020) alleges that the Defendant failed to
design, construct, maintain, and operate its Website to be fully
accessible to and independently usable by the Plaintiff and other
blind or visually-impaired people.
The Plaintiff contends that the Defendant's denial of full and
equal access to its Website, www.fortune.com, and therefore denial
of its products and services offered thereby, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act.
The Plaintiff seeks a permanent injunction to cause a change in the
Defendant's corporate policies, practices, and procedures so that
the Defendant's Website will become and remain accessible to blind
and visually-impaired consumers.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read Website content using her
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a
visual acuity with correction of less than or equal to 20 x 200.
Some blind people who meet their definition have limited vision.
Others have no vision.
Based on a 2010 U.S. Census Bureau report, approximately 8.1
million people in the United States are visually impaired,
including 2.0 million who are blind, and according to the American
Foundation for the Blind's 2015 report, approximately 400,000
visually impaired persons live in the State of New York.
The Defendant offers the commercial Website to the public. The
Website offers features which should allow all consumers to access
the goods and services whereby the Defendant allows for the
delivery of those ordered goods to consumers throughout the United
States, including New York State. The goods and services offered by
Defendant include, the ability to browse magazines for purchase
and delivery, view podcasts, obtain the defendant's contact
information, and related goods and services available online.[BN]
The Plaintiff is represented by:
Joseph H. Mizrahi, Esq.
COHEN & MIZRAHI LLP
300 Cadman Plaza West, 12th Fl.
Brooklyn, NY 11201
Telephone: (929) 575-4175
Facsimile: (929) 575-4195
E-mail: Joseph@cml.legal
FRANKLIN COLLECTION: Wormley Files TCPA Suit in N.D. Texas
----------------------------------------------------------
A class action lawsuit has been filed against Franklin Collection
Service Inc. The case is styled as Brianna Wormley, individually
and on behalf of all others similarly situated v. Franklin
Collection Service Inc., Case No. 4:21-cv-00154-O (N.D. Tex., Feb.
11, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Franklin Collection Service, Inc. -- https://franklinservice.com/
-- provides collection and adjustment services.[BN]
The Plaintiff is represented by:
Frank Hershell Harber, III, Esq.
HARBER LAW GROUP
771 E Southlake Blvd., Suite 111
Southlake, TX 76092
Phone: (817) 523-1611
Fax: (682) 237-2184
Email: frank@harberlawgroup.com
- and -
Ignacio Javier Hiraldo, Esq.
IJH LAW
1200 Brickell Avenue, Suite 1950
Miami, FL 33131
Phone: (786) 496-4469
Fax: (786) 628-9291
Email: ijhiraldo@ijhlaw.com
FROM NOTHING: Jaquez Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against From Nothing, LLC.
The case is styled as Ramon Jaquez, on behalf of himself and all
others similarly situated v. From Nothing, LLC, Case No.
1:21-cv-01252 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
From Nothing, LLC (FILA Skateboarding) --
http://www.fromnothingllc.com/-- offers athletic shoes for
men.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
G95 INC: Faces Tatum-Rios ADA Suit in Southern District of New York
-------------------------------------------------------------------
A class action lawsuit has been filed against G95 Inc. The case is
captioned as Lynette Tatum-Rios v. G95 Inc., Case No.
1:21-cv-00853-ALC (S.D.N.Y., Jan. 29, 2021).
The suit alleges violation of the Americans with Disabilities Act.
The case is assigned to the Hon. Judge Andrew L. Carter, Jr.
G95 manufactures medical-grade safety masks. The company is also
the maker of the Bioscarf, a sustainable alternative to disposable
face masks.[BN]
The Plaintiff is represented by:
Douglas Brian Lipsky, Esq.
LIPSKY LOWE LLP
630 Third Avenue Fifth Floor
New York, NY 10017
Telephone: (212) 392-4772
Facsimile: (212) 444-1030
E-mail: doug@lipskylowe.com
GENERAL ELECTRIC: 2nd Cir. Affirms Dismissal of Varga ERISA Suit
----------------------------------------------------------------
The United States Court of Appeals for the Second Circuit affirmed
the district court's judgment in the lawsuit titled ADELE VARGA,
Individually and on Behalf of all others Similarly Situated,
Plaintiff-Appellant v. GENERAL ELECTRIC COMPANY, JEFFREY ROBERT
IMMELT, Defendants-Appellees, Case No. 20-1144-cv (2nd Cir.).
Varga appeals from so much of the March 5, 2020 judgment of the
U.S. District Court for the Northern District of New York (Sharpe,
J.) as dismissed her putative class action complaint alleging that
GE and Immelt failed to exercise their fiduciary duty of prudence
to the participants of the GE Retirement Savings Plan in violation
of the Employee Retirement Income Security Act ("ERISA").
Varga, a GE employee, participates in GE's 401(k) retirement plan.
One of the 401(k)'s options is a GE Stock Fund, an employee stock
option plan that invests almost entirely in GE stock. Varga
invested in the GE Stock Fund in her 401(k) account. Varga's
complaint alleges that in January 2018, GE announced the
liabilities of its two insurance subsidiaries were under reserved
by approximately $15 billion and that, in addition to $3.5 billion
in contributions already made to shore up those reserves at the end
of 2017, it anticipated the need to contribute several billion
dollars.
Following that announcement, GE's stock price decreased. Varga
alleges that (1) GE's reinsurance subsidiaries plainly did not
provide for adequate reserves for years, and GE and Immelt should
have known of such shortcomings by 2009, or thereafter; and (2) GE
failed to take corrective action to protect GE Stock Fund
participants, either by closing the Fund to future participants, or
publicly disclosing the underfunding by the close of 2009, or
shortly thereafter.
The allegations in Varga's complaint are similar to those made in a
2006 putative class action brought by participants in the GE Stock
Fund, Cavalieri v. General Electric Company, No. 06cv315, 2009 WL
2426001 (N.D.N.Y. Aug. 6, 2009). The Cavalieri lawsuit also alleged
that GE and others failed in their fiduciary obligations by
continuing to maintain the GE Stock Fund as a 401(k) plan choice
"even though they knew that the value was inflated by GE improperly
under reserving for the insurance liabilities by $5 billion to $10
billion." The Cavalieri lawsuit settled in 2009.
The district court dismissed Varga's lawsuit for failure to state a
claim that satisfied the pleading standards set forth in Fifth
Third Bancorp v. Dudenhoeffer, 573 U.S. 409 (2014). The appeal
followed.
On appeal, Varga argues that the district court erred in dismissing
her breach of the duty of prudence claim because, among other
things, she adequately pleaded alternative actions that the
fiduciaries could have taken that "would have protected the plan
and its participants." Her complaint lays out two alternative
actions the fiduciaries could have taken, "earlier disclosure and
closure of the fund to additional investment."
As to the first alternative, Varga argues that a prudent fiduciary
could not have concluded that disclosure would do more harm than
good because GE's previous disclosures related to its insurance
subsidiaries did not trigger a stock drop, and economic studies
have shown that delayed disclosure triggers more severe stock
drops. As to the second alternative, she argues that the 2009
settlement of Cavalieri "gave the fiduciaries a tailor-made pathway
for closing the fund" without arousing concern from outside
investors. She argues that these alternatives are on par with those
found sufficient in Jander v. Retirement Plans Committee of IBM,
910 F.3d 620 (2d Cir. 2018).
The Appellate Court disagrees.
The district court concluded that Varga failed to adequately plead
alternative actions that the fiduciaries "could not have concluded
would do more harm than good." On appeal, Varga does not challenge
the "could not" standard, instead arguing that Jander: provides
clear and detailed guidance on the correct approach district courts
within the circuit must take when assessing whether a complaint's
allegations state a duty of-prudence claim under ERISA because a
prudent fiduciary could not have concluded that corrective
disclosure would do more harm than good.
Though Varga contends that prolonged failure to disclose would only
increase the reputational damages once the issue was inevitably
disclosed, the district court correctly observed that Varga fails
to allege any similar major triggering event to the impending sale
in Jander that would make GE's eventual disclosure inevitable and
instead relies on a general allegation that since other insurers
with under-funded long-term care liabilities inevitably had to
disclose their problems, GE would have to as well, the Appellate
Court notes. It says, Varga's suggestion that the fiduciaries could
have closed the fund in 2009 is similarly conclusory, unsupported
by any factual matter suggesting that the fiduciaries could not
have concluded that such an action would do more harm than good.
Because it concludes that Varga failed to adequately plead
alternative actions that the fiduciaries could have taken, the
Appellate Court need not address Varga's additional argument that
the district court erred in concluding that Varga failed to
adequately plead the fiduciaries knew or should have known about
the shortfall in reserves.
The Appellate Court has considered the remainder of Varga's
arguments and finds them to be without merit. Accordingly, the
order of the district court is affirmed.
A full-text copy of the Court's Summary Order dated Feb. 4, 2021,
is available at https://tinyurl.com/4xrps3yo from Leagle.com.
Matthew W. H. Wessler -- matt@guptawessler.com -- Gupta Wessler
PLLC, in Washington, D.C., Appearing for the Appellant.
Charles J. Crueger -- cjc@cruegerdickinson.com -- Crueger Dickinson
LLC, in Whitefish Bay, Wisconsin (on the brief).
Tyler W. Hudson -- thudson@wcllp.com -- Wagstaff & Cartmell LLP, in
Kansas City, Missouri (on the brief).
Jaime A. Santos -- jsantos@goodwinlaw.com -- Goodwin Procter LLP,
(James O. Fleckner -- jfleckner@goodwinlaw.com -- Benjamin Hayes --
bhayes@goodwinlaw.com -- on the brief), in Washington, D.C.,
Appearing for the Appellee.
GENERAL MOTORS: Goldstein's Claims in 2nd Amended Suit Narrowed
---------------------------------------------------------------
In the case, GOLDSTEIN, et al., Plaintiffs v. GENERAL MOTORS LLC,
Defendant, Case No. 3:19-cv-1778-JLS-AHG (S.D. Cal.), Judge Janis
L. Sammartino of the U.S. District Court for the Southern District
of California granted in part and denied in part the Defendant's
Motion to Dismiss Plaintiffs' Second Amended Class Complaint.
On May 13, 2020, the Plaintiffs filed SAC in the putative class
action against the Defendant. The Plaintiffs are six purchasers of
new and used Cadillacs in the State of California. They allege,
among other things, purported breaches of express and implied
warranties and violations of various consumer protections laws
based on allegedly defective Cadillac User Experience ("CUE")
navigation and radio touch screen displays in 2013-2017 Cadillac
ATS, SRX, and XTS vehicles and 2014-2017 Cadillac CTS, ELR, and
Escalade vehicles.
The Plaintiffs seek to represent all persons and entities who
purchased or leased a Class Vehicle equipped with the Defendant's
CUE touch screen display in the state of California. Additionally,
they seek to represent a Consumers Legal Remedies Act ("CLRA")
Sub-Class of "all members of the Class who are 'consumers' within
the meaning of California Civil Code Section 1761(d)."
The CUE "infotainment" system is an audio/visual interface
comprised of a touch screen module that provides "entertainment and
information delivery to drivers." The CUE controls the audio,
phone, and climate inputs for the car and displays the rear-view
camera when the vehicle is in reverse. The CUE is made of two
major components: a projected capacitance touch screen and a
plastic cover.
The Plaintiffs allege that the CUE is defective. They allege that
the "plastic cover is prone to delaminating or separating from the
touch screen glass due to either mechanical or thermal stress.
When the plastic cover separates, the Plaintiffs allege it causes a
"spider-web-like pattern on the display" to form, which in turn
prevents the CUE from recognizing any touch input from a user.
The Plaintiffs allege that the CUE is "defectively designed"
because of the placement of the screws and rubberized gasket that
hold the plastic cover to the frame of the CUE. They allege that
the Defendant "knew, or should have known, about the Defect."
Similarly, they allege that Defendant was aware of the Defect
because of complaints made "by consumers on internet forums" that
the Defendant allegedly monitored. Lastly, the Plaintiffs allege
that the Defendant was aware of the Defect "based on the large
number of repairs performed to the CUE System's exhibiting
delamination and spiderwebbing at its network of dealerships."
The Defendant moves to dismiss the Plaintiffs' SAC for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).
Judge Sammartino granted in part and denied in part the Defendant's
Motion to Dismiss. Specifically, she rules as follows:
1. The Defendant's motion to dismiss the Plaintiffs' UCL claim
(Count 4) is granted.
2. The Defendant's motion to dismiss Plaintiffs' CLRA claim
(Count 1) is granted as to Plaintiffs Uyenoyama, Wilder,
and Sutton, and denied as to Plaintiffs Goldstein,
Rodriguez, and Guzman.
3. The Defendant's motion to dismiss the Plaintiffs'
fraudulent concealment claim (Count 5) is granted.
4. The Defendant's motion to dismiss Plaintiffs' implied
warranty claims (Counts 2 and 3) is denied as to Plaintiffs
Goldstein, Sutton, Rodriguez, and Guzman, and granted as to
Plaintiffs Uyenoyama and Wilder.
5. The Defendant's motion to dismiss Plaintiffs' unjust
enrichment claim (Count 6) is granted.
Among other things, Judge Sammartino dismissed the Plaintiffs' UCL
claim for failure to adequately plead that they have no adequate
remedy at law. The Plaintiffs have failed to allege that they and
the members of the putative class will be irreparably harmed or
denied an adequate remedy at law in the absence of equitable
relief.
Judge Sammartino also dismissed the Plaintiffs' fraudulent
concealment claim. She explains that under the economic loss
doctrine, "plaintiffs may recover in tort for physical injury to
person or property, but not for `purely economic losses that may be
recovered in a contract action,'" citing Lusinyan v. Bank of Am.,
N.A., No. CV-14-9586 DMG (JCX), 2015 WL 12777225, at *4 (C.D. Cal.
May 26, 2015) (quoting S.F. Unified Sch. Dist. v. W.R. Grace & Co.,
37 Cal.App.4th 1318, 1327 (1995)). Fraud claims based on
affirmative misrepresentations may not be subject to the economic
loss rule. The Plaintiffs have not alleged affirmative
misrepresentations. The economic loss doctrine therefore bars
their fraudulent concealment claim.
The Plaintiffs' unjust enrichment claim is dismissed beause similar
to their UCL claim, the Plaintiffs have failed to show entitlement
to equitable relief, Sammartino finds. The Plaintiffs do not
allege that their legal claims would not provide them with an
adequate remedy.
All claims dismissed in the Order are dismissed without prejudice.
The Plaintiffs may file an Amended Complaint within 30 days of the
date on which the Order is electronically docketed.
A full-text copy of the Court's Feb. 3, 2021 Order is available at
https://tinyurl.com/opwmj946 from Leagle.com.
GENERAL MOTORS: Walker Files Suit in E.D. Michigan
--------------------------------------------------
A class action lawsuit has been filed against General Motors LLC.
The case is styled as Shawn Walker, on behalf of himself and all
others similarly situated v. General Motors LLC, Case No.
2:21-cv-10324-AJT-APP (E.D. Mich., Feb. 11, 2021).
The nature of suit is stated as Motor Vehicle Product Liability.
General Motors Company -- https://www.gm.com/ -- 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]
The Plaintiff is represented by:
Gretchen Freeman Cappio, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Phone: (206) 623-1900
Fax: (206) 623-3384
Email: gcappio@kellerrohrback.com
GODADDY INC: Pinto Appeals Ruling in Drazen TCPA Suit to 11th Cir.
------------------------------------------------------------------
Objector Juan Enrique Pinto filed an appeal from a court ruling
entered in the lawsuit entitled SUSAN DRAZEN, individually and on
behalf of all others similarly situated, Plaintiff v. GODADDY.COM,
LLC, Defendant, Case No. 1:19-cv-00563-KD-B, in the U.S. District
Court for the Southern District of Alabama.
As previously reported in the Class Action Reporter, the Plaintiff
files this lawsuit for damages, and other legal and equitable
remedies, resulting from the illegal actions of GODADDY.COM, LLC in
negligently, knowingly, and/or willfully contacting Plaintiff on
her cellular telephone in violation of the Telephone Consumer
Protection Act.
Objector Pinto, a class member who formally challenges a proposed
class action settlement on the ground that the settlement is not in
the best interests of some or all of the class members, reiterated
his arguments set forth in his objection to settlement and amount
of attorneys' fees. He argued in part that this is a coupon
settlement under the Class Action Fairness Act and that the
requested attorneys' fees are too high and disproportionately
benefit Class counsel instead of the Class. Pinto asked that the
settlement either be amended to assuage his expressed concerns, or
in the alternative be disapproved.
Mr. Pinto files this petition seeking review of the Court's Order
dated December 23, 2020, granting Motion to Approve Settlement
Agreement Plaintiffs' Motion & Memorandum in Support of Final
Approval of Class Action Settlement filed by Drazen. The Court
approves the class action settlement as fair, reasonable, and not
the result of collusion. The Court further certifies this action as
a class action pursuant to Federal Rules of Civil Procedure
23(b)(3).
The appellate case is captioned as Susan Drazen v. Juan Pinto, Case
No. 21-10199, in the United States Court of Appeals for the
Eleventh Circuit, January 19, 2021.
The briefing schedule in the Appellate Case states that:
-- Appellant's Certificate of Interested Persons was due on
February 2, 2021 as to Appellant Juan Enrique Pinto; and
-- Appellee's Certificate of Interested Persons is due on or
before February 16, 2021 as to Appellee Susan Drazen.[BN]
Plaintiff-Appellee SUSAN DRAZEN, on behalf of herself and other
persons similarly situated, is represented by:
John R. Cox, Esq.
LAW OFFICE OF JOHN R. COX
9786-A Timber Cir
Spanish Fort, AL 36527
Telephone: (251) 517-4753
E-mail: federalcourt.notices.jrclegal@gmail.com
- and -
Robert M. Hatch, Esq.
BOCK HATCH LEWIS & OPPENHEIM, LLC
134 N Lasalle St Ste 1000
Chicago, IL 60602
Telephone: (312) 658-5500
E-mail: shinhatch@outlook.com
- and -
Evan Meyers, Esq.
Yevgeniy Y. Turin, Esq.
MCGUIRE LAW, PC
55 W Wacker Dr Fl 9
Chicago, IL 60601
Telephone: (312) 893-7002
E-mail: emeyers@mcgpc.com
- and -
Kenneth J. Riemer, Esq.
KENNETH J. RIEMER ATTORNEY AT LAW
PO BOX 1206
Mobile, AL 36633
Telephone: (251) 432-9212
E-mail: kriemer01@gmail.com
- and -
Earl Price Underwood, Jr., Esq.
UNDERWOOD & RIEMER, PC
21 S Section St
Fairhope, AL 36532-2206
Telephone: (251) 990-5558
E-mail: epunderwood@gmail.com
Movant-Appellant JUAN ENRIQUE PINTO is represented by:
Robert William Clore, Esq.
BANDAS LAW FIRM, PC
802 N Carancahua Ste 1400
Corpus Christi, TX 78401
Telephone: (361) 698-5200
- and -
Thomas Jefferson Deen, III, Esq.
DEENLAW, PC
207 Church St
Mobile, AL 36602
Telephone: (251) 433-5860
GOOGLE LLC: Mikula Web Sues Over Monopoly of Display Ad Stack
-------------------------------------------------------------
MIKULA WEB SOLUTIONS, INC., individually and on behalf of all
others similarly situated v. GOOGLE LLC, Case No. 5:21-cv-00810
(N.D. Calif. Feb. 2, 2021) is brought on behalf of the Plaintiff
and on behalf of similarly situated publishers that sold digital
Display Ad inventory through Google's AdSense targeting consumers
in the United States since March 11, 2008, seeking treble damages
and injunctive relief for Google's longstanding and continuing
violations of sections 1 and 2 of the Sherman Act.
The case arises out of Google's exclusionary and anticompetitive
campaign to obtain and maintain monopolies in several distinct, but
closely related, relevant markets, including (a) publisher ad
server services ("Publisher Ad Servers"); (b) display ad network
services ("Ad Networks"); (c) display ad exchanges ("Exchanges");
and (d) display ad buying tools ("Ad Buying Tools") (collectively,
the "Relevant Markets"). These markets constitute what is referred
to as the "Display Ad Stack."
While Google got its start in Search, today it is an advertising
company. Google makes billions of dollars a year by collecting
information about individual Internet users and then using that
information to help advertisers find suitable persons to whom they
can send direct, targeted ads. Google obtains user information from
a number of sources, including through its Google Search service
and Chrome web browser. Thanks to these and other Google offerings,
Google knows when individual users log on, the Websites they visit,
the things they search for, the products they buy, and other
valuable information. Google has engaged in anticompetitive conduct
that created and entrenched its market power at all levels of the
Display Ad Stack, the suit says.
As a result, Google has control over a dominant share of the
Display Ad inventory on which advertisers will bid as well as over
which advertisers can participate in the most significant auctions
and how publishers prioritize and compare different sources to
identify the advertiser that will ultimately "win" the right to
place an ad in a particular ad slot, the Plaintiff adds.
Display Ads are ads that appear on a Website, often in a side
window or some other designated space on the page. The suppliers of
that ad space -- usually the owner of the Website -- are generally
referred to as "publishers." Because many publishers rely on
Display Ads as an important source of funds for their businesses,
the price at which they can sell space on their pages is critical.
Mikula Web Solutions is a small business incorporated in
Pennsylvania with its principal place of business in Doylestown,
Pennsylvania. The Plaintiff assists small and medium sized business
with complete Website development solutions including Website
design, e-commerce, database applications, online marketing
solutions, and Website hosting. As part of that, Mikula Web
Solutions, Inc. sells digital Display Ad inventory through Google.
As a direct result of Google's alleged unlawful, exclusionary
conduct, Mikula Web Solutions has been paid lower-than-competitive
rates for its digital Display Ad inventory.
Google is a Delaware corporation with its principal place of
business in Mountain View, California. Google is owned by Alphabet
Inc., a publicly traded company incorporated and existing under the
laws of the State of Delaware and headquartered in Mountain View,
California. Google engages in, and its activities substantially
affect, interstate trade and commerce. Google provides a range of
products and services that are marketed, distributed, and offered
to consumers throughout the United States and internationally.[BN]
The Plaintiff is represented by:
Dennis Stewart, Esq.
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
Daniel J. Nordin, Esq.
Ling S. Wang, Esq.
GUSTAFSON GLUEK PLLC
600 B Street, 17th Floor
San Diego, CA 92101
Telephone: (619) 595-3299
E-mail: dstewart@gustafsongluek.com
Daniel E. Gustafson, Esq.
Daniel C. Hedlund, Esq.
Daniel J. Nordin, Esq.
Ling S. Wang, Esq.
- and -
Marc H. Edelson, Esq.
EDELSON LECHTZIN LLP
3 Terry Drive, Suite 205
Newtown, PA 18940
Telephone: (215) 867-2399
Facsimile: (267) 685-0676
E-mail: medelson@edelson-law.com
- and -
Joshua H. Grabar, Esq.
GRABAR LAW OFFICE
One Liberty Place
1650 Market Street, Suite 3600
Philadelphia, PA 19103
Telephone: (267) 507-6085
Facsimile: (267) 507-6048
jgrabar@grabarlaw.com
- and -
E. Powell Miller, Esq.
Sharon S. Almonrode, Esq.
Emily E. Hughes, Esq.
THE MILLER LAW FIRM, P.C.
950 West University Drive, Suite 300
Rochester, MI 48307
Telephone: (248) 841-2200
Facsimile: (248) 652-2852
E-mail: epm@millerlawpc.com
ssa@millerlawpc.com
eeh@millerlawpc.com
- and -
Simon Bahne Paris, Esq.
Patrick Howard, Esq.
SALTZ, MONGELUZZI & BENDESKY, P.C.
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, PA 19103
Telephone: (215) 496-8282
Facsimile: (215) 496-0999
E-mail: sparis@smbb.com
phoward@smbb.com
- and -
Kenneth A. Wexler, Esq.
Kara A. Elgersma, Esq.
WEXLER WALLACE LLP
55 West Monroe Street, Suite 3300
Chicago, IL 60603
E-mail: kaw@wexlerwallace.com
kae@wexlerwallace.com
- and -
Dianne M. Nast, Esq.
Daniel N. Gallucci, Esq.
Joseph N. Roda, Esq.
NASTLAWLLC
1101 Market Street, Suite 2801
Philadelphia, PA 19106
E-mail: dnast@nastlaw.com
dgallucci@nastlaw.com
jnroda@nastlaw.com
GOOGLE LLC: Paige Antitrust Suit Transferred to N.D. California
---------------------------------------------------------------
The case styled J. JACKSON PAIGE, individually and on behalf of all
others similarly situated v. GOOGLE LLC and ALPHABET INC., Case No.
1:20-cv-03158, was transferred from the U.S. District Court for the
District of Columbia to the U.S. District Court for the Northern
District of California on February 8, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 3:21-cv-00977-JD to the proceeding.
The case arises from the Defendants' alleged monopolization of the
U.S. market for mobile apps and in-app purchases by coercing the
purchase of Android Mobile Apps and in-app products and services at
artificial prices and by their patently exclusionary conduct in
violations of the Sherman Act.
Google LLC is a technology company that provides internet-related
services and products, with its principal place of business in
Mountain View, California.
Alphabet Inc. is an American multinational conglomerate with its
principal place of business in Mountain View, California. [BN]
The Plaintiff is represented by:
Jonathan W. Cuneo, Esq.
Victoria Sims, Esq.
Blaine Finley, Esq.
CUNEO GILBERT & LADUCA, LLP
4725 Wisconsin Ave., NW Suite 200
Washington, DC 20016
Telephone: (202) 789-3960
E-mail: jonc@cuneolaw.com
vicky@cuneolaw.com
bfinley@cuneolaw.com
- and –
Gerard V. Mantese, Esq.
MANTESE HONIGMAN, P.C.
1361 E. Big Beaver Road
Troy, MI 48083
Telephone: (248) 457-9200
Facsimile: (248) 457-9201
E-mail: gmantese@manteselaw.com
GT JAPAN: Cavallero Sues Over Mislabeled Vanilla Ice Cream
----------------------------------------------------------
MICHAEL CAVALLERO, individually and on behalf of all others
similarly situated, Plaintiff v. G.T JAPAN, INC., Defendant, Case
No. 7:21-cv-01077 (S.D.N.Y., Feb. 7, 2021) alleges that the
Defendant manufactures, distributes, markets, labels and sells
mochi ice cream under the Maeda-En brand represented as flavored
only by vanilla and not containing any artificial flavors
("Product").
According to the complaint, the Defendant's representations of
"Vanilla" and no mention of artificial flavor give consumers the
impression they are buying a premium product with only natural
flavoring ingredients from the characterizing vanilla ingredient.
The Plaintiff and Class Members purchased the Product because they
reasonably believed it was flavored only with natural ingredients
like vanilla and did not contain artificial flavors.
As a result of the false and misleading representations, the
Product is sold at a premium price, approximately no less than no
less than $6.99 for boxes of six 2 OZ pieces, excluding tax,
compared to other similar products represented in a non-misleading
way, and higher than it would be sold for absent the misleading
representations, the suit says.
G.t Japan, Inc. is located in Irvine, California and is part of the
food wholesalers industry. [BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cutter Mill Rd Ste 409
Great Neck, NY 11021-3104
Telephone: (516) 268-7080
E-mail: spencer@spencersheehan.com
HACHETTE BOOK: Five Defendants Named in E-Book Price-Fixing Suit
----------------------------------------------------------------
Katherine Cowdrey, writing for The Bookseller, reports that US
publishing's Big Five - Hachette, HarperCollins, Macmillan, Penguin
Random House and Simon & Schuster - have now been named as
defendants in an amended class suit originally brought against
Amazon alone for anti-competitive behaviour in relation to e-books
in the US.
A class action complaint was initially filed mid January against
Amazon, claiming that Amazon.com, the defendant, had "agreed to
price restraints" with the five publishers, then described as
"co-conspirators", causing consumers to "overpay" for e-books.
[GN]
HEALTH INSURANCE: Appointment of LKLSG, TDF as Class Counsel Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as ELIZABETH E. BELIN, et
al., v. HEALTH INSURANCE INNOVATIONS, INC., et al., Case No.
0:19-cv-61430-AHS (S.D. Fla.), the Lead Plaintiff asks the Court to
enter an order:
1. appointing Levine Kellogg Lehman Schneider Grossman LLP
and The Doss Firm as Co-Lead Class Counsel; or
2. amending the Order on Motion for Class Certification by
adding a sentence to the Order's Conclusion stating words
to the effect that "The Court appoints Levine Kellogg
Lehman Schneider + Grossman LLP and The Doss Firm as Co-
Lead Class Counsel."
On February 1, 2021, this Court certified a class and appointed
named plaintiffs as Class Representatives (Lead Plaintiffs). As the
Court is aware, the Firms represent Lead Plaintiffs and have
prosecuted this case from its inception. Lead Plaintiffs move this
Court to appoint LKLSG and TDF as Co-Lead Class Counsel on behalf
of all others similarly situated pursuant to Federal Rule of Civil
Procedure 23(g). LKLSG and TDF spent hundreds of pre-suit hours
identifying and investigating the claims in this action, and
thousands more to prosecute lawsuit since its filing in June 2019,
the Plaintiffs say.
Health Insurance Innovations is a product agnostic insurance
technology platform.
A copy of the Plaintiffs' motion dated Feb. 3, 2020 is available
from PacerMonitor.com at https://bit.ly/3tPwm3w at no extra
charge.[CC]
The Plaintiffs are represented by:
Jason Kellogg, Esq.
Jeffrey C. Schneider, Esq.
Lawrence A. Kellogg, Esq.
Jason K. Kellogg, Esq.
Victoria J. Wilson, Esq.
LEVINE KELLOGG LEHMAN
SCHNEIDER + GROSSMAN LLP
201 South Biscayne Boulevard
Citigroup Center, 22nd Floor
Miami, FL 33131
Telephone: (305) 403-8788
Facsimile: (305) 403-8789
E-mail: vjw@lklsg.com
acd@lklsg.com
jcs@lklsg.com
ah@lklsg.com
jk@lklsg.com
ah@lklsg.com
lak@lklsg.com
ah@lklsg.com
- and -
Jason R. Doss, Esq.
THE DOSS FIRM, LLC
The Brumby Building
127 Church Street, Suite 220
Marietta, GA 30060
Telephone: (770) 578-1314
Facsimile: (770) 578-1302
E-mail: jasondoss@dossfirm.com
HIGHMARK BCBSD: Pennsylvania Court Denies Walker's Bid to Remand
----------------------------------------------------------------
In the lawsuit titled CHRISTOPHER JAMES WALKER, Plaintiff v.
HIGHMARK BCBSD HEALTH OPTIONS, INC., Defendant, Case No.
2:20-CV-01975-CCW (W.D. Pa.), the U.S. District Court for the
Western District of Pennsylvania denied the Plaintiff's Motion to
Remand.
In the putative class action lawsuit, the Plaintiff alleges that
the Defendant violated the Telephone Consumer Protection Act
("TCPA") by placing unsolicited automated/pre-recorded calls to the
Plaintiff's and putative class members' cellphones without those
individuals' consent. The Plaintiff originally filed this action in
the Court of Common Pleas of Allegheny County on November 30, 2020.
The Defendant accepted service of the Complaint on December 9,
2020, and thereafter timely removed the case to the Court on
December 21, 2020.
On January 27, 2021, one day after the Defendant filed a motion to
dismiss, in part, the Plaintiff's Complaint for lack of subject
matter jurisdiction, the Plaintiff filed his Motion to Remand. In
his Motion, the Plaintiff argues that the Defendant's Notice of
Removal is deficient because it "fails to establish jurisdiction
under Article III, Section 2 of the Constitution."
In particular, the Plaintiff contends that the Defendant, as the
party invoking the jurisdiction of this Court, has not demonstrated
that the Complaint satisfies the injury in fact requirement for
Article III standing. Therefore, because "any doubts regarding a
federal court's jurisdiction are resolved in favor of remand," he
claims that "conflicting opinions of federal court cases addressing
Article III standing in TCPA cases" mandate remand their case.
In opposition, the Defendant points out that in removing the case
to federal court it invoked the Court's federal question
jurisdiction under 28 U.S.C. Section 1331 because the Plaintiff
alleges in his Complaint that itt violated the TCPA. It also argues
that, even if the Plaintiff succeeds in having the case remanded
for lack of jurisdiction, the case would become removable again as
soon as the Plaintiff responds to discovery requests regarding
damages. As such, and in the interest of judicial economy, the
Defendant contends that the Plaintiff's Motion to Remand should be
denied.
Applying the analysis and holding of Susinno v. Work Out World,
Inc., 862 F.3d 346 (3d Cir. 2017) to the present case, the Court
finds that the Plaintiff has standing under Article III. It says
the Plaintiff's Complaint alleges multiple violations of the TCPA
by the Defendant, including six specifically alleged instances of
unsolicited, pre-recorded calls and/or voicemail messages to the
Plaintiff's cellphone from September through November 2020. And,
although he does not explicitly claim that these calls were an
invasion of privacy, the Complaint states that the Plaintiff was
never a customer of the Defendant and "he never provided consent to
Defendant for the calls and does not know how Defendant obtained
his number," thereby implicating his privacy interests.
Thus, under the reasoning of the Susinno court--which found one
call and one voicemail message sufficient to confer standing--the
Plaintiff has alleged injuries that are both clearly delineated by
the statute and closely related to a harm traditionally recognized
at common law, District Judge Christy Criswell Wiegand opines.
Therefore, the injury in fact element of standing is apparent from
the face of the Complaint.
Furthermore, although not challenged, the Court also notes that the
Complaint plainly satisfies the remaining standing elements: the
alleged TCPA violations are attributed to the Defendant making
unsolicited, pre-recorded calls to the Plaintiff's cellphone and
the alleged injury is redressable through statutory and--if the
violations are proven to have been willful--treble damages.
Accordingly, and because the alleged violations of the TCPA clearly
implicate federal question jurisdiction under 28 U.S.C. Section
1331, the Court concludes that it has subject matter jurisdiction
over the case.
For these reasons, the Plaintiff's Motion to Remand is denied.
A full-text copy of the Court's Memorandum Opinion and Order dated
Feb. 4, 2021, is available at https://tinyurl.com/127sirm3 from
Leagle.com.
HOMEGOODS INC: Blumenthal Nordrehaug Files Labor Class Action
-------------------------------------------------------------
The San Francisco employment law attorneys at Blumenthal Nordrehaug
Bhowmik De Blouw LLP, filed a class action lawsuit against
Homegoods, Inc., alleging the company violated the California Labor
Code. The lawsuit against Homegoods, Inc., is currently pending in
the Contra Costa County Superior Court, Case No. C21-00037.
According to the lawsuit filed, Homegoods, Inc. allegedly (a)
failed to pay minimum wages, (b) failed to pay overtime wages, (c)
failed to provide legally required meal and rest periods, (d)
failed to provide accurate itemized wage statements, (e) failed to
reimburse employees for required business expenses, and (f) failed
to provide wages when due, all in violation of the applicable Labor
Code sections listed in Labor Code Sections Sections 201, 202, 203,
226, 226.7, 510, 512, 1194, 1197, 1197.1, 2802, and the applicable
Wage Order(s), and thereby gives rise to civil penalties as a
result of such alleged conduct.
Cal. Lab. Code Sec. 226 provides "that every employer shall furnish
each of his or her employees with an accurate itemized wage
statement in writing showing . . . the corresponding amount of time
worked at each hourly rate." From time to time, DEFENDANT allegedly
failed to provide wage statements to employees that identified the
correct gross and net wages earned, which resulted in DEFENDANT
allegedly violating Cal. Lab. Code Sec. 226.
If you would like to know more about the Homegoods, Inc. lawsuit,
please contact Attorney Nicholas J. De Blouw today by calling (800)
568-8020.
Blumenthal Nordrehaug Bhowmik De Blouw LLP is a labor law firm with
law offices located in San Diego County, Riverside County, Los
Angeles County, Sacramento County, Santa Clara County, Orange
County and San Francisco County. The firm has a statewide practice
of representing employees on a contingency basis for violations
involving unpaid wages, overtime pay, discrimination, harassment,
wrongful termination and other types of illegal workplace conduct.
[GN]
HYDROBUILDER LLC: Williams Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Hydrobuilder LLC. The
case is styled as Milton Williams, on behalf of himself and all
other persons similarly situated v. Hydrobuilder LLC, Case No.
1:21-cv-01265 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Hydrobuilder.com -- https://hydrobuilder.com/ -- is an online
retailer for all of indoor and outdoor gardening needs.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
IRHYTHM TECHNOLOGIES: Thornton Law Reminds of April 2 Deadline
--------------------------------------------------------------
The Thornton Law Firm on Feb. 7 disclosed that a class action
lawsuit has been filed on behalf of investors of iRhythm
Technologies, Inc. (NASDAQ: IRTC). The case is currently in the
lead plaintiff stage. Investors who purchased IRTC stock or other
securities between August 4, 2020 and January 28, 2021 may contact
the Thornton Law Firm's investor protection team by visiting
www.tenlaw.com/cases/iRhythm to submit their information. Investors
may also email investors@tenlaw.com or call 617-531-3917.
FOR MORE INFORMATION: www.tenlaw.com/cases/iRhythm
The complaint alleges that iRhythm and its senior executive made
misleading statements to investors and failed to disclose that: (1)
iRhythm's business would suffer as a result of the CMS's
rulemaking; (2) reimbursement rates would in fact plummet; and (3)
a lack of national pricing in the CMS rule and fee schedule would
cause uncertainty and weakness in iRhythm's business.
Interested iRhythm investors have until April 2, 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/iRhythm
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/iRhythm [GN]
IRHYTHM TECHNOLOGIES: Vincent Wong Reminds of April 2 Deadline
--------------------------------------------------------------
The Law Offices of Vincent Wong on Feb. 7 disclosed that class
actions have commenced on behalf of certain shareholders in the
following companies. If you suffered a loss you have until the lead
plaintiff deadline to request that the court appoint you as lead
plaintiff. There will be no obligation or cost to you.
iRhythm Technologies, Inc. (NASDAQ:IRTC)
If you suffered a loss, contact us
at:http://www.wongesq.com/pslra-1/irhythm-technologies-inc-loss-submission-form?prid=12727&wire=1
Lead Plaintiff Deadline: April 2, 2021
Class Period: August 4, 2020 - January 28, 2021
Allegations against IRTC include that: (1) iRhythm's business would
suffer as a result of the 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
Tricida, Inc. (NASDAQ:TCDA)
If you suffered a loss, contact us
at:http://www.wongesq.com/pslra-1/tricida-inc-loss-submission-form?prid=12727&wire=1
Lead Plaintiff Deadline: March 8, 2021
Class Period: September 4, 2019 - October 28, 2020
Allegations against TCDA include that: (i) Tricida's NDA for
veverimer was materially deficient; (ii) accordingly, it was
foreseeably likely that the FDA would not accept the NDA for
veverimer; and (iii) as a result, the Company's public statements
were materially false and misleading at all relevant times.
Bit Digital, Inc. (NASDAQ:BTBT)
If you suffered a loss, contact us
at:http://www.wongesq.com/pslra-1/bit-digital-inc-loss-submission-form?prid=12727&wire=1
Lead Plaintiff Deadline: March 22, 2021
Class Period: December 21, 2020 - January 8, 2021
Allegations against BTBT include that: (1) that Bit Digital
overstated the extent of its a bitcoin mining operation; and (2)
that, as a result of the foregoing, Defendants' positive statements
about the Company's business, operations, and prospects were
materially misleading and/or lacked a reasonable basis.
To learn more contact Vincent Wong, Esq. either via email
vw@wongesq.com or by telephone at 212.425.1140.
Vincent Wong, Esq. is an experienced attorney who has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. Attorney advertising. Prior
results do not guarantee similar outcomes.
CONTACT:
Vincent Wong, Esq.
39 East Broadway
Suite 304
New York, NY 10002
Tel. 212.425.1140
Fax. 866.699.3880
E-Mail: vw@wongesq.com [GN]
JERRY ERWIN: Miller BIPA Suit Removed From Circuit Ct. to C.D. Ill.
-------------------------------------------------------------------
The class action lawsuit captioned as KATHERINE MILLER, on behalf
of herself and a class of similarly situated individuals v. JERRY
ERWIN ASSOCIATES, LLC, Case No. 2020-L-000186 (Filed Dec. 21,
2021), was removed from the Circuit Court of Champaign County,
Illinois, to the United States District Court for the Central
District of Illinois (Urbana Division) on Jan. 29, 2020.
The District Court Clerk assigned Case No. 1:21-cv-01043-CSB-EIL to
the proceeding.
The Plaintiff's complaint alleges that JEA purportedly has violated
the Illinois Biometric Information Privacy Act (BIPA) by failing to
institute, maintain and adhere to a publicly available retention
schedule for biometric identifiers or biometric information;
failing to obtain informed consent before obtaining biometric
identifiers or information; and failing to store and maintain
biometric in a manner consistent with the reasonable standard of
care within its industry.
The Plaintiff's claims are premised on the same underlying
operative factual allegations, namely that the Plaintiff worked for
JEA and that "JEA required certain employees to scan their
fingerprints in order to clock in and out at JEA jobsites," that
"JEA recorded and stored certain employees' fingerprint biometrics
using fingerprint-scanning computer technology," and that "JEA did
not inform either the Plaintiff or class members the specific
purpose and length of the term for which their biometric data would
be collected, stored and/or used." Further, the Plaintiff alleges
JEA "did not obtain Plaintiff's or class members' written consent
to capture and store Plaintiff and class members' biometric data."
The Plaintiff asserts claims for reckless, or, alternatively,
negligent violations of BIPA and seeks declaratory and injunctive
relief as well as statutory damages, attorneys' fees and costs.
JEA provides healthcare services. The Company offers assisted
living, skilled nursing, hospice, and respite care services.[BN]
The Plaintiff is represented by:
Roberto Costales, Esq.
William H. Beaumont, Esq.
BEAUMONT COSTALES LLC
107 W. Van Buren Street, Suite 209
Chicago IL 60605
E-mail: rlc@beaumontcostales.com
whb@beaumontcostales.com
The Defendant is represented by:
Mary A. Smigielski, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
550 W. Adams St., Ste. 500
Chicago, IL 60661
Telephone: (312) 345-1718
Facsimile: (312) 345-1778
E-mail: mary.smigielski@lewisbrisbois.com
JOHNSON & JOHNSON: Briskin Sues Over Baby Powder's Side Effects
---------------------------------------------------------------
ALAN BRISKIN, individually and as Administrator/Executor of the
ESTATE OF SUSAN BRISKIN, DECEASED, Plaintiff v. JOHNSON & JOHNSON;
JOHNSON & JOHNSON CONSUMER, INC., f/k/a JOHNSON & JOHNSON CONSUMER
COMPANIES, INC.; PERSONAL CARE PRODUCTS COUNCIL, f/k/a COSMETIC
TOILETRY AND FRAGRANCE ASSOCIATION (CTFA), JOHN DOES/JANE DOES
1-30; UNKNOWN BUSINESSES AND/OR CORPORATIONS 1-50, Defendants, Case
No. ATL-L-000430-21 (N.J. Super., Atlantic Cty., February 9, 2021)
is a class action against the Defendants for violations of the New
Jersey Products Liability Act, the New Jersey Punitive Damages Act,
and the common law.
The case arises from the Defendants' alleged false and misleading
advertising and marketing of Johnson & Johnson's Baby Powder. The
Defendants allegedly failed to provide adequate and proper warnings
and/or instructions regarding the increased risk of cancer
associated with the use of the product by women to powder their
perineal area. Had the Plaintiff's Decedent received a warning that
the use of J&J Baby Powder would have significantly increased her
risk of cancer, she would not have used the same. As a proximate
result of the Defendants' design, manufacture, marketing, sale, and
distribution of J&J Baby Powder, the Plaintiff's Decedent has been
injured catastrophically severe and permanent pain, suffering,
disability, impairment, loss of life, loss of care, comfort, and
economic damages, the suit says.
Johnson & Johnson is a medical device company headquartered in New
Brunswick, New Jersey.
Johnson & Johnson Consumer, Inc., formerly known as Johnson &
Johnson Consumer Companies, Inc., is a consumer health products
manufacturer based in New Jersey.
Personal Care Products Council, formerly known as Cosmetic Toiletry
and Fragrance Association, is a trade association based in
Washington, D.C. [BN]
The Plaintiff is represented by:
Richard M. Golomb, Esq.
GOLOMB & HONIK, P.C.
1835 Market Street, Suite 2900
Philadelphia, PA 19103
Telephone: (215) 985-9177
JONES SEPTIC: Settlement Agreement Gets Approval in Rumph Suit
--------------------------------------------------------------
In the class action lawsuit captioned as KENNETH RUMPH v. JONES
SEPTIC TANK, INC., RODERICK B. JONES, and RODERICK H. JONES, Case
No. 7:19-cv-00085-HL (M.D. Ga.), the Hon. Judge Hugh Lawson entered
an order:
1. granting the Joint Motion to approve settlement agreement;
2. dismissing the Plaintiffs' complaint;
3. denying as moot the Plaintiffs' motion for status
conference.
Settlement Terms:
-- Reasonable Hourly Rate
The Court agrees that funds attributable to the
Plaintiff Brontzman's unrelated claims do not require
this Court's scrutiny under Fair Labor Standards Act's
(FLSA's) provisions. An hourly rate of $334.83 is
reasonable in this district. The Court recently
approved a $300 rate, and counsel's representation of a
class of five plaintiffs warrants a slightly higher
rate.
-- Lodestar Calculation
The settlement agreement compensates counsel $26,774.66
including fees and costs. There is a "strong
presumption that the lodestar figure represents a
reasonable fee." Because the settlement agreement
awards counsel a fee just below the lodestar figure,
the Court finds that the proposed attorney's fees award
is reasonable.
The settlement agreement seeks to resolve the Plaintiffs' claims
under the FLSA. The Plaintiffs allege that Defendants failed to pay
their overtime wages.
A copy of the Court's order dated Feb. 2, 2020 is available from
PacerMonitor.com at https://bit.ly/2OjV6Rd at no extra charge.[CC]
KAWADA COMPANY: Garcia Seeks Online Hotel Booking's Access Features
-------------------------------------------------------------------
ORLANDO GARCIA, individually and on behalf of all others similarly
situated, Plaintiff v. KAWADA COMPANY OF AMERICA, LTD. and DOES
1-10, Defendant, Case No. 21STCV04858 (Cal. Super., Los Angeles
Cty., February 8, 2021) is a class action against the Defendant for
violations of the Americans with Disabilities Act and the Unruh
Civil Rights Act.
The case arises from the Defendant's failure to provide information
about the accessible features in the rooms at the Kawada Hotel on
its reservation Website at https://www.kawadahotel.com/ for people
with disabilities, including the Plaintiff. The Website reservation
system lacks sufficient information needed by disabled travelers to
assess independently whether a given hotel room would work for
them. As a result, the Plaintiff is unable to engage in an online
booking of the hotel room with any confidence or knowledge about
whether the room will actually work for him due to his disability,
the suit says.
Kawada Company of America, Ltd. is an owner and operator of the
Kawada Hotel located at 200 S. Hill St., Los Angeles, California.
[BN]
The Plaintiff is represented by:
Raymond Ballister Jr., Esq.
Russell Handy, Esq.
Amanda Seabock, Esq.
Zachary Best, Esq.
CENTER FOR DISABILITY ACCESS
8033 Linda Vista Road, Suite 200
San Diego, CA 92111
Telephone: (858) 375-7385
Facsimile: (888) 422-5191
E-mail: amandas@potterhandy.com
KEURIG DR PEPPER: Faces Class Suit Over Deceptive Vanilla Flavoring
-------------------------------------------------------------------
Corinne Ramey, writing for The Wall Street Journal, reports that
the lawsuits started in 2019, when Spencer Sheehan puzzled over a
can of A & W Root Beer stamped with the words, "MADE WITH AGED
VANILLA."
"I looked at it and said, 'Yeah, I don't think it's correct, or
completely truthful,'" said Mr. Sheehan, a lawyer in the Long
Island suburbs of New York City who decided to sue Keurig Dr Pepper
Inc., which owns the A & W brand.
Now a battle over vanilla is playing out in federal courts across
the U.S., with more than 100 proposed class-action cases filed over
vanilla flavoring, many by Mr. Sheehan, within the past two years.
At issue is one question: Is vanilla really vanilla without vanilla
beans?
On one side are plaintiffs' lawyers, like Mr. Sheehan, who argue in
lawsuits that food manufacturers are duping consumers by implying
products are made with vanilla when they contain at most a trace of
the plant. On the other are companies -- McDonald's Corp., Wegmans
Food Markets Inc., Trader Joe's and Chobani LLC among them -- that
argue consumers don't expect to find real vanilla in their vanilla
soy milk or vanilla Greek yogurt as long as it tastes like
vanilla.
A spokeswoman for Keurig Dr Pepper Inc. said the suit's claims have
no merit and its products are truthfully marketed and labeled. The
suit is ongoing. [GN]
KEYPOINT GOVERNMENT: Loses Bid to Compel Arbitration in Brayman
---------------------------------------------------------------
The U.S. District Court for the District of Colorado denied the
Defendant's motion to compel arbitration in the lawsuit titled
RACHEL BRAYMAN, DANA McCARTHY, and ADRIANA PONCE, individually and
on behalf of all other similarly situated individuals, Plaintiffs
v. KEYPOINT GOVERNMENT SOLUTIONS, INC., a Delaware corporation,
Defendant, Case No. 18-cv-0550-WJM-NRN (D. Colo.).
KeyPoint moved to compel arbitration of California state law claims
and strike related Rule 23 class action allegations.
The named Plaintiffs bring the action against KeyPoint for alleged
violations of the Fair Labor Standards Act ("FLSA") and violations
of California law. Their FLSA and California law claims concern
KeyPoint's alleged failure to properly compensate a certain class
of employees known as "Investigators" for overtime hours worked, as
well as other employment and wage violations.
Ms. Brayman filed the lawsuit on March 8, 2018. The original
complaint included a FLSA collective action claim against KeyPoint
based on its failure to pay overtime wages. The Court granted FLSA
conditional collective action certification under 29 U.S.C. Section
216(b) on November 1, 2018.
As redefined by the Court on December 16, 2019, the FLSA collective
action class is defined as: All persons who worked as, or who were
hired to be, a Field Investigator, Background Investigator, or in
other position with similar job duties, for Defendant KeyPoint
Government Solutions, Inc. at any time from April 6, 2015, to
September 18, 2019.
On December 16, 2019, the Court issued an order analyzing the
arbitration agreements signed by the FLSA opt-in plaintiffs.
Itconcluded based on a plain reading of the arbitration agreements
that the putative FLSA collective action members, who worked as, or
were hired to be Investigators as of March 8, 2018, (the day
Brayman initiated the lawsuit) could not be forced to arbitrate
their claims individually and could instead join the collective
action.
On August 9, 2020, the Plaintiffs filed the First Amended
Complaint, which, among other things, added five causes of action
arising under California statutes, regulations, and/or
administrative orders: failure to pay overtime wages; failure to
provide accurate itemized wage statements; failure to provide rest
breaks and meal periods; failure to pay "final wages" to those who
have left KeyPoint's employ; and unfair competition, by engaging in
the acts and practices all of the previous claims.
The First Amended Complaint also included a proposed Rule 23 class
action, defined as: All persons who worked as, or who were hired to
be, a Field Investigator, Background Investigator, or another
position with similar job duties, in the State of California for
Defendant KeyPoint Government Solutions, Inc., at any time within
four years prior to the filing of Plaintiffs' Complaint.
KeyPoint filed the instant Motion on July 23, 2020. In the Motion,
KeyPoint contends that 31 individuals, who fall within the
definition of the proposed Rule 23 class ("California Plaintiffs")
signed arbitration agreements before the Plaintiffs filed the First
Amended Complaint and, therefore, must arbitrate any California
state law claims.
District Judge William J. Martinez notes that two clauses in the
arbitration agreements are relevant to the Motion. One is the
"Arbitrator Decides Clause," which provides that "the Arbitrator,
and not any federal, state, or local court or agency, will have the
exclusive authority to resolve any dispute relating to the
interpretation, applicability, enforceability, or formation of this
Agreement." The second relevant clause is the "Pending Litigation
Exception," which provides that "this Agreement does not apply to
any class, collective, or other representative action proceeding
that is currently pending and to which you are a current or
purported class member as of the day this Agreement is signed by
Employee."
KeyPoint argues: (1) a plain reading of the arbitration agreements
requires the arbitrator to decide whether the California
Plaintiffs' state law claims are subject to arbitration; and (2)
even if the Court were to reach this question itself, the
arbitration agreements require the California Plaintiffs to bring
the California state law claims, added in the First Amended
Complaint, against KeyPoint in arbitration.
Invoking the Arbitrator Decides Clause, KeyPoint contends that the
arbitrator has the exclusive authority to decide whether the
Pending Litigation Exception applies to the California state law
claims and the California Rule 23 class.
The Court has previously addressed KeyPoint's argument that the
Arbitrator Decides Clause requires the arbitrator to determine
whether the California Plaintiffs' claims are subject to
arbitration.
Judge Martinez finds that the present situation does not require
that the Court deviate from its prior holding. An alternate ruling
would require all 31 California Plaintiffs to arbitrate whether
their claims may be brought in federal court, potentially leading
to 31 different rulings. Moreover, an arbitrator would be forced to
resolve disputes regarding the meaning of the Court's prior order
interpreting the Pending Litigation Exception.
Thus, the Court again rejects KeyPoint's claim that the Arbitrator
Decides Clause unmistakably delegates the authority to determine
whether the California Plaintiffs' state law claims are exempted
from arbitration under the Pending Litigation Exception to
individual arbitrators.
The crux of the parties' dispute revolves around the proper
interpretation of the Pending Litigation Exception, which provides
that the Agreement does not apply to any class, collective, or
other representative action proceeding that is currently pending
and to which you are a current or purported class member as of the
day this Agreement is signed by Employee.
KeyPoint argues that the 31 California Plaintiffs executed their
arbitration agreements before the Plaintiffs moved to file the
First Amended Complaint, which added California state claims to the
litigation. According to KeyPoint, because the Pending Litigation
Exception only applies to a "class, collective, or other
representative action proceeding that is currently pending" at the
time the arbitration agreements were signed, the Pending Litigation
Exception does not cover the California state law claims because
these claims did not exist at the time that the California
Plaintiffs signed their arbitration agreements.
In response, the Plaintiffs contend that the Pending Litigation
Exception applies to the California state law claims. The Court
agrees with the Plaintiffs.
KeyPoint's argument--that specific claims must have been currently
pending at the time the California Plaintiffs signed their
arbitration agreements to be exempt from arbitration--is contrary
to the plain language of the arbitration agreements, Judge Martinez
finds. The Pending Litigation Exemption states that the arbitration
agreements do not apply to currently pending collective action
"proceedings" to which potential plaintiffs are a current or
purported class member.
The use of the term "proceedings" demonstrates that the focus is on
whether there is a currently pending lawsuit--not whether the
specific claims within a lawsuit were pending at the time the
arbitration agreements were signed, Judge Martinez opines. In
drafting the arbitration agreements, KeyPoint could have written
the Pending Litigation Exception to clarify that the exception only
applies to currently pending claims within a class, collective, or
other representative action. It did not do so, Judge Martinez adds,
among other things.
Accordingly, KeyPoint's request that the Court compel the
California Plaintiffs to arbitrate their state law claims, strike
Plaintiffs' Rule 23 Class allegations as to the arbitration
agreement signatories, and stay the remaining proceedings pending
arbitration is denied.
A full-text copy of the Court's Order dated Feb. 4, 2021, is
available at https://tinyurl.com/4jntkfvk from Leagle.com.
KINGSFORD PRODUCTS: Briquettes Aren't 100% Natural, Lee Claims
--------------------------------------------------------------
Timothy Lee, individually and on behalf of all others similarly
situated v. The Kingsford Products Company, LLC, Case No.
7:21-cv-00924 (S.D.N.Y., Feb. 2, 2021) alleges that the Kingsford
engages in deceptive business practices in the marketing,
advertising and promotion of its 100% Natural Hardwood Briquettes
("Product"), often described as "barbecue charcoals."
The Product is marketed as "100% Natural Hardwood Briquets" which
delivers a "Cleaner Burn." However, the representations are
misleading because the Product is not "100% Natural" nor "100%
Natural Hardwood." The Product is not "100% Natural" because it
contains synthetic ingredients such as borax. The Product is not
"100% Natural Hardwood" because it contains wood scraps including
between 3-8% sawdust, instead of only hardwood, which is the source
for lump charcoal. The front label contains a graphic of a green
flame accompanied by the statement "Cleaner Burn." The green flame
and comparative claim give consumers the impression the Product is
beneficial, or less harmful to the environment, compared to other
fire sources such as propane gas and lump charcoal, the Plaintiff
alleges.
As a result of the Defendant's conduct and omissions, the Plaintiff
and the putative class purchased the Product, which failed to
conform as promised, says the complaint.
Mr. Lee is a citizen of Dutchess County, New York. He purchased the
Product on at least one occasion, at Home Depot, 80 Independent Way
SE, Brewster, New York between January 27, 2020 and July 27, 2020.
The Plaintiff purchased the product for personal and household use
in reliance on the labeling, including "100% Natural," "100%
Natural Hardwood" and "Cleaner Burn." As a result of the
representations made by the Defendant, he expected the product to
conform to the descriptions. Had he known the truth about the
misrepresentations and omissions, he would not have purchased the
Product, says the Plaintiff.
The Defendant manufactures, markets, labels and sells its "100%
Natural Hardwood Briquettes" for between $13-$16 for a 12-pound
bag, available at convenience, grocery, home improvement and other
retail stores.[BN]
The Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cutter Mill Road, Suite 409
Great Neck, NY 11021
Telephone: (516) 268-7080
Facsimile: (516) 234-7800
E-mail: spencer@ spencersheehan.com
- and -
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
KORE ESSENTIALS: Paguada Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Kore Essentials, Inc.
The case is styled as Dilenia Paguada, on behalf of herself and all
others similarly situated v. Kore Essentials, Inc., Case No.
1:21-cv-01244 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kore -- https://www.koreessentials.com/ -- offers men's belts with
40+ sizing positions to adjust with for a perfect fit.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
KOTOBUKI RESTAURANT: Fong Files FLSA Suit in E.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Kotobuki Restaurant,
Inc., et al. The case is styled as Angela Fong, Hong Ying Zhang,
Sheng Lin, Mary Y. Yueh, on behalf of themselves and others
similarly situated v. Kotobuki Restaurant, Inc. (doing business as:
Kotobuki, doing business as: Kotobuki-Hauppauge), Kotobuki Roslyn,
Inc. (doing business as: Kotobuki, doing business as: Kotobuki
Roslyn), Kotobuki Babylon, Inc. (doing business as: Kotobuki, doing
business as: Kotobuki-Babylon), Kotobuki Manhattan, Inc. (doing
business as: Kotobuki, doing business as: Kotobuki-Manhattan),
Kotobuki Management, Inc. (doing business as: Kotobuki), Yoshihiro
Narita, Eric Kim, Case No. 2:21-cv-00747-GRB-ST (E.D.N.Y., Feb. 11,
2021).
The lawsuit is brought over alleged violation of the Fair Labor
Standards Act.
Kotobuki Restaurant -- http://www.kotobukirestaurants.com/-- is a
Japanese restaurant in New York City which offers straightforward
sashimi, and shares a menu with unusual rolls & other Japanese fare
in a modern space.[BN]
The Plaintiffs are represented by:
Aaron Schweitzer, Esq.
John Troy, Esq.
TROY LAW, PLLC
41-25 Kissena Blvd. Suite 119
Flushing, NY 11355
Phone: (718) 762-1324
Email: troylaw@troypllc.com
johntroy@troypllc.com
KRAFT TOOL: Burbon Files ADA Suit in E.D. New York
--------------------------------------------------
A class action lawsuit has been filed against Kraft Tool Company.
The case is styled as Luc Burbon and on behalf of all persons
similarly situated v. Kraft Tool Company, Case No. 1:21-cv-00761
(E.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kraft Tool -- https://www.krafttool.com/ -- manufactures quality
Trowel Trade Tools for concrete, masonry, drywall, plaster, asphalt
and tile professionals.[BN]
The Plaintiff is represented by:
Bradly Gurion Marks, Esq.
THE MARKS LAW FIRM PC
175 Varick Street 3rd Floor
New York, NY 10014
Phone: (646) 770-3775
Fax: (646) 867-2639
Email: bmarkslaw@gmail.com
LANE BRYANT: Young Files ADA Suit in S.D. California
----------------------------------------------------
A class action lawsuit has been filed against Lane Bryant, Inc., et
al. The case is styled as Sarah Young, individually and on behalf
all others similarly situated v. Lane Bryant, Inc., a Delaware
corporation; Lane Bryant #6243, Inc., a Florida corporation; Does
1-10 inclusive; Case No. 3:21-cv-00261-AJB-LL (S.D. Cal., Feb. 11,
2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Lane Bryant Inc. -- https://www.lanebryant.com/ -- is an American
retail women's clothing store chain focusing on plus-size
clothing.[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
LAS VEGAS SANDS: Daniels Family 2001 Revocable Trust Suit Underway
------------------------------------------------------------------
Las Vegas Sands Corporation said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 5, 2021,
for the fiscal year ended December 31, 2020, that the company
continues to defend a purported class action suit initiated by The
Daniels Family 2001 Revocable Trust.
On October 22, 2020, The Daniels Family 2001 Revocable Trust, a
putative purchaser of the Company's shares, filed a purported class
action complaint in the U.S. District Court against LVSC, Sheldon
G. Adelson and Patrick Dumont.
The complaint asserts violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and alleges that the company
(LVSC) made materially false or misleading statements, or failed to
disclose material facts, from February 27, 2016 through September
15, 2020, with respect to its operations at the Marina Bay Sands,
its compliance with Singapore laws and regulations, and its
disclosure controls and procedures.
On January 5, 2021, the U.S. District Court entered an order
appointing Carl S. Ciaccio and Donald M. DeSalvo as co-lead
plaintiffs. Pursuant to a scheduling order entered by the U.S.
District Court, the plaintiffs anticipate filing an amended
complaint on or before March 8, 2021.
The Company anticipates bringing a motion to dismiss the amended
complaint on or before May 7, 2021. All briefing on the motion to
dismiss is scheduled to be completed by August 5, 2021.
Las Vegas Sands said, "This action is in a preliminary stage and
management has determined that based on proceedings to date, it is
currently unable to determine the probability of the outcome of
this matter or the range of reasonably possible loss, if any. The
Company intends to defend this matter vigorously."
Las Vegas Sands Corporation is an American casino and resort
company based in Paradise, Nevada, United States. Its resorts
feature accommodations, gaming and entertainment, convention and
exhibition facilities, restaurants and clubs, as well as an art and
science museum in Singapore. The company is based in Las Vegas,
Nevada.
LIONS GATE: Continues to Seek Added Reimbursement from Insurers
---------------------------------------------------------------
Lions Gate Entertainment Corp. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 4, 2021,
for the quarterly period ended December 31, 2020, that the company
is continuing to seek additional insurance reimbursement against
certain insurers related to the settlement in the settled putative
class suit initiated by purported Starz Networks stockholders.
Between July 19, 2016 and August 30, 2016, seven putative class
action complaints were filed by purported Starz stockholders in the
Court of Chancery of the State of Delaware (the "Fiduciary
Litigation").
On August 22, 2018, the parties to the Fiduciary Litigation reached
an agreement in principle providing for the settlement of the
Fiduciary Litigation on the terms and conditions set forth in an
executed term sheet.
On October 9, 2018, the parties to the Litigation executed a
stipulation of settlement, which was filed with the court (the
"Stipulation"). The Stipulation provided for, among other things,
the final dismissal of the Fiduciary Litigation in exchange for a
settlement payment made in the amount of $92.5 million, of which
$37.8 million was reimbursed by insurance.
The Fiduciary Litigation settlement was approved by the Court of
Chancery of the State of Delaware and the settlement amount and
insurance reimbursement discussed above were paid during the
quarter ended December 31, 2018.
The Company is continuing to seek additional insurance
reimbursement, including pursuant to a lawsuit filed by the Company
on November 7, 2018 against certain insurers.
On November 5, 2018, an insurer that entered into an agreement and
contributed $10.0 million to the Company's aggregate insurance
reimbursement filed a lawsuit seeking declaratory judgment for
reimbursement of its agreed upon payment.
The Company believes the lawsuit to be without merit and intends to
vigorously defend it.
No further updates were provided in the Company's SEC report.
Lions Gate Entertainment Corp. engages in motion picture production
and distribution, television programming and syndication, home
entertainment, interactive ventures and games, and location-based
entertainment in Canada, the United States, and internationally.
Lions Gate Entertainment Corp. was founded in 1986 and is
headquartered in Santa Monica, California.
LLOYD'S, LONDON: 632 Metacom Suit Moved From N.Y. to Rhode Island
-----------------------------------------------------------------
The U.S. District Court for the Southern District of New York
grants the Defendants' motion to transfer to the District of Rhode
Island the lawsuit styled 632 METACOM, INC. d/b/a HOMETOWN TAVERN,
individually and on behalf of all others similarly situated,
Plaintiff v. CERTAIN UNDERWRITERS AT LLOYD'S, LONDON SUBSCRIBING TO
POLICY NO. XSZ146282, Defendants, Case No. 20-CV-3905 (RA)
(S.D.N.Y.).
The Plaintiff brought the putative class action against the
Defendants alleging breach of contract and seeking a declaratory
judgment that its commercial insurance policy covers certain losses
related to COVID-19. The lawsuit concerns the scope of a
commercial property insurance policy that the Plaintiff purchased
from the Defendants. The Policy provides commercial property
coverage for the Plaintiff's restaurant located at 632 Metacom
Avenue, in Warren, Rhode Island, and covers, inter alia, loss of
business income sustained due to suspension of operations caused by
direct physical loss or damage or orders from a "civil authority."
Pursuant to the Policy, the Plaintiff is to notify its insurance
broker, Massachusetts-based XS Brokers Insurance Agency, Inc., in
the event of a claim. The Policy specifies that the insurance
coverage "shall be subject to the applicable state law to be
determined by the court of competent jurisdiction as determined by
the provisions of the Service of Suit clause contained herein."
That clause provides that service of process in any suit instituted
against any one of the Underwriters upon the Policy "may be made
upon Messrs Mendes & Mount, 750 Seventh Avenue, New York, New York
10019-6829, U.S.A."
In late March 2020, the Plaintiff notified the Defendants of
property loss and business interruption caused by the COVID-19
pandemic, which it maintains is covered by the Policy. In response,
the Defendants requested additional information beyond that
required by the Policy and told the Plaintiff that it would have to
review the Policy to evaluate its claim for coverage.
On May 19, 2020, the Plaintiff filed a putative class action in the
Southern District of New York, alleging that the Defendants have
uniformly refused to pay their insureds under their standard policy
for losses related to COVID-19. The putative class includes a
nationwide class comprising "all policyholders of Defendants who
made a claim and were denied coverage under one of the Defendants'
policies due to COVID-19," as well as a Rhode Island subclass,
comprising those who purchased such policies in Rhode Island.
According to the Complaint, upon information and belief, the forms
and endorsements used in the Plaintiff's Policy are materially the
same as those policies held by the members of the proposed class.
The Plaintiff maintains that venue is proper in the Court because
the Policy specifically provides that service of process may be
made upon an agent domiciled in the Southern District of New York.
The Court accepted the case as related to Gio Pizzeria & Bar
Hospitality, LLC, et al. v. Certain Underwriters at Lloyd's, London
Subscribing to Policy Numbers ARP-74910-20 and ARP-75209-20, a
putative class action filed on April 17, 2020, against the
Defendants by two Florida restaurants alleging breach of contract
under a substantially similar policy. On August 20, 2020, that case
was transferred to the Southern District of Florida by a
stipulation that followed the Defendants' filing of a motion to
transfer venue.
On July 28, 2020, alongside a motion to dismiss for failure to
state claim, the Defendants filed the instant motion to transfer
pursuant to 28 U.S.C. Section 1404(a). Maintaining that the
connection between the Southern District of New York and the
dispute is "nonexistent," the Defendants argue that the Court
should transfer the action to the District of Rhode Island for the
convenience of parties and witnesses and in the interest of
justice.
The Plaintiff defends the propriety of venue in this District on
the grounds that the class-action nature of the suit renders its
connection to Rhode Island immaterial and for all intents and
purposes, it appears that the Defendants' headquarters are located
in New York because Lloyd's has offices in the District. The
Defendants counter that Lloyd's is an insurance marketplace that is
not a defendant in the action, and that the Plaintiff's allegations
regarding the location of any Lloyd's office are irrelevant. The
Court held an initial status conference on November 6, 2020, and
stayed discovery pending resolution of the Defendants' motions.
As an initial matter, District Judge Ronnie Abrams notes that it is
plain--and the Plaintiff does not appear to dispute--that the
action could have been brought in the District of Rhode Island.
First, a civil action may be brought in "a judicial district in
which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the
subject of the action is situated." Those criteria, he says, are
satisfied in the case as the Plaintiff is a Rhode Island business
that is seeking insurance coverage for lost income that is largely
attributable to stay-at-home orders issued by the state of Rhode
Island. Second, the Defendants, by virtue of their status as
foreign insurers, "may be sued in any judicial district." The
Judge, therefore, finds that the Plaintiff could have commenced
this action in the transferee district.
Having determined that the action could have been brought in the
District of Rhode Island, the Court turns to the discretionary
inquiry as to whether transfer would best serve the convenience of
the parties and the interests of justice. Because the "operative
facts upon which the litigation was brought bear little material
connection" to the Southern District of New York, it affords little
weight to the Plaintiff's choice of forum, citing Cerussi v. Union
Coll., 144 F.Supp.2d 265, 270 (S.D.N.Y. 2001).
The Court does not credit the Plaintiff's argument that the
connection between New York and this litigation is "substantial."
To support that contention, the Plaintiff avers that a "Google
search reveals that Lloyd's American headquarters are located" in a
Manhattan office that houses Lloyd's' American President and
General Counsel. The Defendants counter that Lloyd's is neither a
defendant in this action nor a party to the Policy, but rather an
insurance market in which Underwriters operate. Accordingly, the
Court affords the Plaintiff's choice of forum little to no weight
in its Section 1404(a) analysis.
The Court finds that this important factor--Locus of Operative
Facts--weighs in favor of transfer to Rhode Island. Where, as in
the instant case, a party has not shown that any of the operative
facts arose in the Southern District of New York, the locus of
operative facts will substantially favor transfer from the
district.
Although the Complaint does not allege where the Policy was
negotiated or purchased, it does allege that the Policy was issued
to the Plaintiff at an address in Rhode Island. Nothing in the
record suggests that any relevant events concerning the Policy took
place in New York.
The Plaintiff maintains, however, that its filing of the suit as a
nationwide class action changes the inquiry. Noting that "putative
class members are spread all over the country," it argues that the
primary locus should be determined by the Defendants'
headquarters.
Judge Abrams notes that the Defendants are headquartered in the
United Kingdom, and lack any cognizable connection to New York.
Because all of the identified "operative documents and sources of
proof" concern conduct in Rhode Island--namely the Policy and its
applicability to the putative losses that took place in Rhode
Island as a result of stay-at-home orders promulgated in that
state--the Court concludes that the locus of operative facts is in
Rhode Island. Accordingly, this factor favors the Defendants.
Consideration of the convenience of witnesses similarly favors
transfer to Rhode Island, Judge Abrams holds. While nearly all of
the identifiable potential witnesses are located in Rhode Island,
none are in New York. Judge Abrams opines, among other things, that
a Rhode Island court is better suited to interpret the Policy's
language under Rhode Island law.
In sum, all relevant factors demonstrate that transferring the
action to the District of Rhode Island would promote convenience
and the interests of justice, Judge Abrams holds. Because most
witnesses and evidence appear closer to the transferee venue with
few or no convenience factors favoring the venue chosen by the
plaintiff, the trial court should grant a motion to transfer.
Although it is a putative nationwide class action, the balance of
factors at this stage of the case favors transfer to the home
district of the Lead Plaintiff.
For the reasons set forth, the Defendants' motion to transfer the
action to the U.S. District Court for the District of Rhode Island
is granted.
A full-text copy of the Court's Memorandum Opinion & Order dated
Feb. 4, 2021, is available at https://tinyurl.com/9zadku7u from
Leagle.com.
LOADED BOARDS: Quezada Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Loaded Boards, Inc.
The case is styled as Jose Quezada, on behalf of himself and all
others similarly situated v. Loaded Boards, Inc., Case No.
1:21-cv-01242 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Loaded Boards -- https://loadedboards.com/ -- is a manufacturer of
high performance bamboo longboards, longboard wheels, longboard
skateboards and snowboards.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
LOGISTICARE SOLUTIONS: Feb. 18 Response to Class Status Bid Sought
------------------------------------------------------------------
In the class action lawsuit captioned as LA'RIA CHAPMAN,
Individually and on behalf of all others similarly situated, v.
LOGISTICARE SOLUTIONS, LLC, Case No. 2:20-cv-12875-AJT-APP (E.D.
Mich.), the Defendant LogistiCare and Plaintiff La'Ria Chapman ask
the Court to enter an order granting extension of time to respond
to each Parties' currently pending motions which are both due on
February 4, 2021.
-- LogistiCare's response to Plaintiff's Opposed Pre-
Discovery Motion for Conditional Class Certification and
Court Supervised Notice to Putative Class Members Pursuant
to 29 U.S.C. section 216(B); and
-- The Plaintiff's response to LogistiCare's Motion to
Dismiss, or in the Alternative, Motion to Transfer.
The Parties ask the Court that the deadline for both responses be
moved up to and including February 18, 2021.
LogistiCare provides non-emergency medical transportation
management services.
A copy of the Parties' motion dated Feb. 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3qdtdIz at no extra charge.[CC]
Attorneys in Charge for the Plaintiff and Putative Class Members,
are:
Jennifer McManus, Esq.
FAGAN MCMANUS, P.C.
25892 Woodward Avenue
Royal Oak, MH 48067
Telephone: (248) 658-8951
E-mail: jmcmanus@faganlawpc.com
- and -
Clif Alexander, Esq.
Austin W. Anderson, Esq.
ANDERSON ALEXANDER, PLLC
819 N. Upper Broadway
Corpus Christi, TX 78401
Telephone: (361) 452-1279
E-mail: clif@a2xlaw.com
austin@a2xlaw.com
The Defendant is represented by:
Bronwyn H. Pepple, Esq.
WILLIAMS WEESE PEPPLE & FERGUSON PC
1801 California Street, Suite 3400
Denver, CO 80202
Telephone: (303) 861-2828
E-mail: bpepple@williamsweese.com
MANHATTAN LUXURY: Class Status Bid Nixed w/o Prejudice
------------------------------------------------------
In the class action lawsuit captioned as BRIAN WATSON, et al., v.
MANHATTAN LUXURY AUTOMOBILES, INC., Case No. 1:20-cv-04572-LGS
(S.D.N.Y.), the Hon. Judge Lorna G. Schofield entered an order
that:
1. the third-party subpoena respondent CDK Global, LLC's
application to designate two customer lists produced
on November 16, 2020, as "Confidential" pursuant
to this action's protective order is granted;
-- To the extent the Plaintiffs seek to use CDK's customer
lists in another action without the need of a third-
party subpoena, Plaintiffs and CDK shall confer and
attempt to reach agreement;
2. the Plaintiffs' application to strike certain evidence is
denied without prejudice to renewal as a motion in limine
prior to trial;
-- For clarity, the Defendant may use Plaintiff Greene's
response to a "New York inspection" text message in
connection with any motion prior to trial;
3. the discovery is no longer stayed, and the parties'
request for extension of expert discovery is granted;
-- A Second Amended Civil Case Management Plan, adopting
the parties' proposed deposition schedule, will follow
separately; and
4. the Plaintiffs' motion for class certification is denied
without prejudice to renewal by April 30, 2021;
-- The Defendant shall file its opposition by May 21,
2021, and the Plaintiffs shall file their reply by June
2, 2021; and
-- The parties shall comply with the Court's Individual
and Emergency Rules and Practices with respect to
exhibits, page limits and courtesy copies.
Manhattan Luxury Automobiles, Inc. was founded in 1994. The
Company's line of business includes the retail sale of new and used
automobiles.
A copy of the Court's order dated Feb. 4, 2020 is available from
PacerMonitor.com at https://bit.ly/2ZbORBo at no extra charge.[CC]
MARKET VIEW: AWL Borrowers Sue Over Payday Loans in E.D. Pa.
------------------------------------------------------------
DIANA BUTLER, individually and behalf of a class of similarly
situated persons v. MARKET VIEW, LLC, d/b/a DebtTrader, NORTHWOOD
ASSET MANAGEMENT GROUP, LLC and various John Does, Case No.
5:21-cv-00424-JLS (E.D. Pa., Jan. 29, 2021) is brought against the
Defendants for their alleged knowing participation in a conspiracy
with a notorious "payday lending" enterprise known as American Web
Loans ("AWL"), which victimized the Plaintiff and the putative
classes.
According to the complaint, the Plaintiff and the consumers in the
putative classes were victimized by "payday" loans, which are
short-term credit products sold with crushing interest rates and
targeted at low-income individuals with high credit risks. The
credit products offered by AWL were sold over the Internet and were
described as "fast cash" that provided funds immediately.
Allegedly, AWL is one of the more notorious and long-lasting of
these lending Websites. It is purportedly operated by a Native
American tribe, but for all practical purposes it has been in fact
controlled by and for the profit of non-defendant Mark Curry and
entities controlled by him, including the non-defendant entitles
MacFarlane Group and Sol Partners. The Plaintiff and the members of
the putative class are AWL borrowers.
One of the most common forms of these illegal schemes has been the
so-called "tribal lending" schemes. In a tribal-lending scheme,
otherwise known as "rent-a-tribe," a payday lender allegedly
recruits a Native American tribe to establish a tribal business
entity to function as the nominal, originating lender in order to
create a tribal veneer for the business.
The Plaintiff asserts damage claims under the Racketeering
Influenced Corrupt Organizations Act ("RICO"), and the Fair Debt
Collection Practices Act ("FDCPA"), and seeks declaratory relief
under state law.
The Plaintiff further contends that the Defendants are among
entities that conspired with the AWL tribal lending scheme that
victimized Plaintiff and the proposed class by providing the
essential service of purchasing nonperforming loans from the
scheme.
Plaintiff Butler was ensnared into a 600% payday loan made by AWL.
Her loan was sold to Northwood in a transaction brokered by
DebtTrader. AWL is one of several tribal lenders that launder its
illegal debt through DebtTrader, and Northwood is one of many debt
buyers that is engaged in collecting AWL loans purchased through
DebtTrader.
Market View, LLC, which operates under its trademark "DebtTrader,"
is an online platform that connects tribal lending businesses to
debt-buyers willing and able to purchase, and thereby monetize, the
lenders' nonperforming loans. The Defendant Northwood is a
debt-buyer that has purchased millions of dollars in illegal,
"tribal" payday loans through DebtTrader.[BN]
The Plaintiff is represented by:
Irv Ackelsberg, Esq.
John J. Grogan, Esq.
David A. Nagdeman, Esq.
LANGER, GROGAN & DIVER, PC
1717 Arch Street, Suite 4020
Philadelphia, PA 19103
Telephone: (215) 320-5660
Facsimile: (215) 320-5703
E-mail: iackelsberg@langergrogan.com
MCKINSEY & CO: Pembroke Pines Sues For Misbranding OxyContin Drugs
------------------------------------------------------------------
THE CITY OF PEMBROKE PINES, FLORIDA, individually and on behalf of
all others similarly situated, Plaintiff v. MCKINSEY & COMPANY,
INC., Defendants, Case No. 0:21-cv-60305 (S.D. Fla., Feb. 5, 2021)
alleges that the Defendant is liable for the successful efforts to
increase OxyContin sales after 2007 guilty plea of Purdue Frederick
Company, the parent of Purdue Pharma, L.P. ("Purdue"), for
misbranding OxyContin.
According to the complaint, McKinsey's mandate was to increase the
sales of the drug in light of the fact that Purdue had plead guilty
to misbranding, and the owners of Purdue now wished to exit the
opioid market due to the perceived reputational risks of remaining
there. McKinsey's task was to thread the needle, to increase
OxyContin sales given the strictures imposed by the 5-year
Corporate Integrity Agreement. This McKinsey did, turbocharging
the sales of a drug it knew fully well was addictive and deadly,
while paying at least tacit respect to the Corporate Integrity
Agreement, the suit says.
McKinsey & Company, Inc. is a management consulting firm. The
Company offers consultation to various industries such as
electronic, aerospace, automotive, chemical, financial, oil and
gas, public sector, and healthcare. [BN]
The Plaintiff is represented by:
Mark J. Dearman, Esq.
Paul J. Geller, Esq.
ROBBINS GELLER RUDMAN
& DOWD LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
Facsimile: (561) 750-3364
E-mail: pgeller@rgrdlaw.com
mdearman@rgrdlaw.com
-and-
James D. Young, Esq.
MORGAN & MORGAN COMPLEX
LITIGATION GROUP
76 South Laura Street, Suite 1100
Jacksonville, FL 32202
Telephone: (904) 361-0012
Facsimile: (904) 366-7677
E-mail: jyoung@forthepeople.com
-and-
Juan Martinez, Esq.
MORGAN & MORGAN COMPLEX
LITIGATION GROUP
201 North Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 393-5463
E-mail: juanmartinez@forthepeople.com
-and-
Robert C. Gilbert, Esq.
Scott Weiselberg, Esq.
KOPELOWITZ OSTROW FERGUSON
WEISELBERG GILBERT
1 West Las Olas Boulevard, Suite 500
Fort Lauderdale, FL 33301
Telephone: (954) 525-4100
E-mail: gilbert@kolawyers.com
weiselberg@kolawyers.com
-and-
Matthew Browne, Esq.
BROWNE PELICAN PLLC
7007 Shook Avenue
Dallas, TX 75214
Telephone: (405) 642-9588
E-mail: mbrowne@brownepelican.com
-and-
Eugene K. Pettis, Esq.
Debra P. Klauber
HALICZER PETTIS & SCHWAMM, P.A.
One Financial Plaza
100 SE 3rd Avenue, 7th Floor
Fort Lauderdale, FL 33394
Telephone: (954) 523-9922
E-mail: service@hpslegal.com
MEDCIPHERS LLC: Underpays Personal Support Aides, Dawson Suit Says
------------------------------------------------------------------
KIM DAWSON, CHARLENE BURRELL, AMEIKA EDMONDS, and TANYA SMALL,
individually and on behalf of all others similarly situated,
Plaintiffs v. MEDCIPHERS, LLC, DAVINA CONSULTING, LLC, and JEFFREY
B. AIBEL, Defendants, Case No. 1:21-cv-00588-ELR (N.D. Ga.,
February 9, 2021) is a class action against the Defendants for
violations of the Fair Labor Standards Act of 1938 by failing to
compensate the Plaintiffs and Class members appropriate minimum
wage and overtime pay for all hours worked, failing to keep
accurate time records, and failing to properly post wage notices.
The Plaintiffs were employed by the Defendants as personal support
aides at any time between 2016 to the present.
Medciphers, LLC is a multi-service health-care company
headquartered in Norcross, Georgia.
Davina Consulting, LLC is a consulting firm with its principal
place of business of 2376 Shallowford Terrace, Atlanta, Georgia.
[BN]
The Plaintiff is represented by:
Nicholas P. Martin, Esq.
Frank DeMelfi, Esq.
MARTIN | DEMELFI, LLC
1742 Mount Vernon Road, Suite 300
Dunwoody, GA 30338
Telephone: (770) 450-6155
E-mail: nmartin@martin-demelfi.com
fdemelfi@martin-demelfi.com
MEDSTAR HEALTH: District of Maryland Refuses to Toss ERISA Suit
---------------------------------------------------------------
The U.S. District Court for the District of Maryland denied the
Defendants' motion to dismiss the consolidated lawsuit titled In re
MedStar ERISA Litigation, Case No. RDB-20-1984 (D. Md.).
The Plaintiffs in the consolidated class action allege breach of
fiduciary duty under the Employee Retirement Income Security Act of
1974, as amended 29 U.S.C. Section 1001, et seq. ("ERISA"), failure
to monitor, and, in the alternative, knowing breach of trust, for
the alleged imprudent management of the MedStar Health, Inc.
Retirement Savings Plan.
On November 6, 2020, Defendants MedStar, the MedStar Health, Inc.
Retirement Savings Plan Committee, the Board of Directors of
MedStar Health, Inc., and the unnamed members of the Committee and
Board ("Does. 1-20"), filed a Motion to Dismiss the Plaintiffs'
Amended Complaint, arguing that the Plaintiffs have failed to state
a claim for relief.
The Plaintiffs in the consolidated class action are participants in
the MedStar Health, Inc. Retirement Savings Plan ("Plan"), a
qualified tax-deferred, defined contribution retirement plan. As of
December 31, 2018, the Plan had 25,010 participants with account
balances and assets totaling nearly $1.8 billion, placing it in the
top 0.1% of all defined contribution plans by plan size. MedStar, a
Maryland non-profit corporation, is the Plan's sponsor.
The Plaintiffs assert that MedStar's Administrative Committee is
the Plan's administrator. They further assert that MedStar's Board
has the ability to appoint and monitor the members of the
Committee. Accordingly, the Plaintiffs allege that MedStar, its
Board, the members of the Board, the Administrative Committee, and
the members of the Committee are all fiduciaries under Sections
1002 and 1102 of the ERISA.
Unable to identify the current members of the MedStar Board nor the
Administrative Committee, the Plaintiffs named Does 1-20 as
placeholders. They contend that pursuant to Rule 15 of the Federal
Rules of Civil Procedure, they will seek to amend their Amended
Complaint to name the members of the Committee and other
responsible individuals as defendants as soon as their identities
are discovered.
The Plan is a single-employer 403(b) plan in which participants
direct the investment of their contributions into various
investment options offered by the Plan. Each participant's account
is credited with the participant contributions, and earnings or
losses thereon. The Plan pays Plan expenses from its assets, and
the majority of administrative expenses are paid by participants as
a reduction of investment income. Each participant's account is
charged with the amount of distribution taken and an allocation of
administrative expenses.
The available investment options for participants of the Plan
include various mutual funds, guaranteed investment contracts, and
a self-directed brokerage account. Among other investments, the
Plan lineup offers a suite of 13 target date funds. A target date
fund is an investment vehicle that offers an all-in-one retirement
solution through a portfolio of underlying funds that gradually
shifts to become more conservative as the assumed target retirement
year approaches. Managers make changes to the allocation to stocks,
bonds, and cash over time, and these shifts are referred to as a
fund's "glide path." The underlying mutual funds that target date
fund managers choose to represent each asset class can be
"actively" or "passively" managed. Funds are "actively" managed
when the investment manager is responsible for deciding which
securities should be bought and sold and in which quantities. On
the other hand, "passively" managed funds simply track an establish
market index.
In their Amended Complaint, the Plaintiffs in part argue that the
Defendants failed to monitor the average expense ratios charged to
similar sized plans. They allege that participants in the Plan were
offered an "exceedingly expensive menu of investment options,
clearly demonstrating that Defendants neglected to benchmark the
costs of the Plan lineup or consider ways in which to lessen the
fee burden on participants during the pertinent period." From 2014
through 2018, the Plaintiffs allege that the Plan paid out
investment management fees of 0.45% to 0.47% of its total assets,
considerably more than those of comparable plans.
The Plaintiffs' Amended Complaint also challenges the inclusion of
three specific funds in that menu: i. The Fidelity Freedom Fund
("Active suite"); ii. The John Hancock Disciplined Value Fund; and
iii. The Baron Small Cap Fund.
The Plaintiffs' primary claim in the case is that the Defendants
breached their duty of imprudence in continuing to offer the Active
suite, the John Hancock Fund, and the Baron Fund as investment
options in the Plan, despite their deficiencies. With respect to
the John Hancock and Baron Funds, the Plaintiffs provide data
comparing each fund to the benchmarks selected by the funds'
managers, as well as their peer groups as identified by
Morningstar. The data suggests that each fund was underperforming
their benchmarks and peer groups on both annualized bases, as well
as on rolling five- and ten-year bases.
In their Motion to Dismiss, the Defendants' primarily argue that
the Plaintiffs have failed to state a plausible claim for relief
because they cannot use the passively-managed Index suite as a
benchmark for the actively-managed Active suite.
District Judge Richard D. Bennett opines that the Defendants'
arguments with respect to the selection of the Index suite as the
Active suite's benchmark do not compel dismissal of the Plaintiffs'
Complaint. Moreover, the Judge says, even if this were the proper
stage to consider the use of the Index suite as a benchmark, the
case is distinguishable from the California court's opinion in
Davis v. Salesforce.com, Inc., as the Plaintiffs' have based their
claim for imprudence on numerous other grounds.
With respect to the Active suite, the Plaintiffs have not only
alleged that the Active suite underperformed in comparison to the
Index suite, but also that the Active suite saw an outflow of
investment, as well as received criticism from different financial
news and reporting services. Additionally, the Defendants do not
challenge the manager-selected identified as the benchmarks for the
other allegedly underperforming John Hancock and Baron Funds.
Finally, in addition to claiming imprudence based on the retention
of the Active suite, John Hancock, and Baron Funds, the Plaintiffs
also assert that the Defendants failed to prudently monitor the
Plan's expenses as a whole, alleging the aggregate amount of
investment management fees paid by the Plan between 2014 and 2018
was 0.46-0.48% of its total assets, far in excess of the average
total plan cost of 0.28% for comparable plans.
Given these numerous factual allegations, the Plaintiffs have
plausibly stated a claim to relief under Count I of their Amended
Complaint, Judge Bennett concludes.
In Count II of their Amended Complaint, the Plaintiffs assert that
Defendant MedStar is responsible for appointing, overseeing, and
removing members of the Administrative Committee, who, in turn, are
responsible for appointing, overseeing, and removing members of the
Committee. The Amended Complaint continues, stating that "in light
of its appointment and supervisory authority, MedStar had a
fiduciary responsibility to monitor the performance of the
Committee and its members" and both MedStar and the Administrative
Committee "had a fiduciary responsibility to monitor the
performance of the members of the Committee."
As the Plaintiffs' allegations are sufficient to make a plausible
claim that the Defendants breached their fiduciary duties, such
allegations also implicate their duty to monitor, Judge Bennett
finds. He holds that the Plaintiffs' substantive allegations
concerning the Defendants' relationships to one another and the
Plan are sufficient to support the Plaintiffs' monitoring claims.
In Count III of their Amended Complaint, the Plaintiffs assert in
the alternative to their claims for breach of fiduciary duty and
failure to monitor that to the extent any of the Defendants are not
found to be fiduciaries or co-fiduciaries under ERISA, each such
Defendant should be liable for the conduct at issue in sthe case.
The Plaintiffs contend that all Defendants allegedly possessed the
requisite knowledge and information to avoid fiduciary breaches at
issue here and allegedly knowingly participated in breaches of
fiduciary duty by permitting the Plan to offer a menu of poor and
expensive investment options.
Given the allegations with respect to the roles and relationships
of the Defendants identified in the Complaint, dismissing their
claim under Count III at this time would be premature. Judge
Bennett holds that the Plaintiffs have stated a plausible claim for
relief.
For these reasons, the Defendants' Motion to Dismiss is denied.
A full-text copy of the Court's Memorandum Opinion dated Feb. 4,
2021, is available at https://tinyurl.com/4f3ancok from
Leagle.com.
MENORAH PARK: Class of Nurses Conditionally Certified in Thompson
-----------------------------------------------------------------
In the lawsuit entitled KEISHA THOMPSON, on behalf of herself and
all other similarly situated, Plaintiff v. MENORAH PARK CENTER FOR
SENIOR LIVING BET MOSHAV ZEKENIM HADATI, Defendant, Case No.
1:17cv2580 (N.D. Ohio), the U.S. District Court for the Northern
District of Ohio grants the Plaintiff's Motion for Conditional
Certification, Expedited Opt-In Discovery and Court Supervised
Notice to Potential Opt-In Plaintiffs.
Plaintiff Thompson brings thecollective and class action against
Defendant Menorah for alleged unpaid wages on behalf of a class
defined as: All former and current hourly RNs, LPNs, and nursing
assistants employed by Menorah Park Center for Senior Living Bet
Moshav Zekenim Hadati during any period of time between January 11,
2015 and the present.
According to the Plaintiff, the collective class members are
similarly situated as they were all classified by Menorah as
non-exempt, hourly employees and all were subject to the same
alleged FLSA-violative policies of not being paid for all hours
worked and not being paid at the statutory overtime rate for hours
worked that exceeded forty hours in a given week.
More specifically, the Plaintiff alleges that she and the putative
collective and class members were required to clock out at the end
of their shifts but were expected to complete work such as
completing patient charting, other documentation, patient care and
various other nursing duties while off the clock. The Plaintiff and
two opt-in Plaintiffs have submitted declarations declaring all
three and the putative class were subject to the same
FLSA-violative policies.
Defendant Menorah was established in 1906 and currently operates a
360-bed nursing home facility in Beachwood, Ohio, for long term
care patients and short term post-hospital rehabilitation patients.
Menorah opposes the Motion for Conditional Certification,
contending the Plaintiffs are not similarly situated, are not
representative of the class since they have not worked for Menorah
in the last three years, were largely part-time employees and many
other employees attest that they have been paid for all hours
worked and were paid the statutory rate for hours worked beyond
forty hours per week. Moreover, it argues that the Plaintiff has
not demonstrated any alleged FLSA violation by Menorah was willful
and, therefore, the applicable time frame should be two years.
In their Reply, the Plaintiffs argue that Menorah's defenses
concern factual disputes, which are inappropriate for the Court to
consider at the first stage of the certification process.
Having considered the arguments and evidence submitted by the
parties, the Court finds that at this stage of the proceedings, the
Plaintiffs have met their "modest" burden and are entitled to
conditional certification by their Declarations. Thompson's
Declaration asserts she was a Registered Nurse that worked for
Menorah from April to December 2017. Thompson further declares she
was required to clock out but then perform additional work for
Menorah without being paid. Opt-In Plaintiff Rhonda Jackson attests
she was a Nursing Assistant with Menorah from September 2008 to
October 2016. Jackson declares she was required to keep working
after clocking out. Shantee Wilburn is another opt-in Plaintiff,
who worked for Menorah from July 2016 to June 2017 as a Nursing
Assistant. Wilburn's declaration mirrors that of Jackson and
Thompson.
Senior District Judge Christopher A. Boyko holds that these
Declarations are sufficient to meet the Plaintiffs' modest burden
to show that the Plaintiff, Opt-In Plaintiffs and members of the
putative class were all subject to the same FLSA-violative pay
policies.
The Defendant disputes that that Plaintiffs worked full time,
worked overtime or have personal knowledge that other employees
were subject to the same alleged FLSA-violative policies as the
Plaintiffs. However, Judge Boyko notes, as caselaw makes clear,
these factual challenges are not to be considered at the first
stage of conditional certification when discovery has not been
completed and the Plaintiff bears only a modest burden to show they
are similarly situated to the purported collective. Judge Boyko
adds that it is sufficient for this stage that the Plaintiffs have
established a Menorah policy or practice that applies to the
purported class and have advanced arguments that the policy
violates the FLSA.
Menorah has filed separately a Motion to Strike Specified
Paragraphs Submitted by the Plaintiff. It seeks to strike those
portions of the Plaintiff's and the Opt-In Plaintiffs' Declarations
wherein they declare they "observed" the allegedly unlawful pay
practices of Menorah were applied to other workers and declare they
are similarly situated to other employees of Menorah. The Court
denies the Motion as the Plaintiff relies on Rule 12f of the
Federal Rules of Civil Procedure, which applies solely to
pleadings. Moreover, the Plaintiffs' observations are not
speculation but are purportedly based on their personal knowledge.
While Menorah contends they could not have observed the pay
practices of other employees or observed employees in other areas
of Menorah's facilities, these are questions that go to
credibility, which the Court does not address at conditional
certification, Judge Boyko holds. Furthermore, the Plaintiffs will
be subject to depositions where Menorah may question them at
length.
While Menorah contends the Plaintiffs' declarations that they are
similarly situated to other employees is a legal conclusion, the
Court finds that it is based on their observations of hours worked
off the clock over forty hours and their observations that other
employees were not paid for working off the clock or at the
statutory overtime rate per Menorah policy. Therefore, the Court
denies Menorah's Motion to Strike.
Lastly, Menorah argues the relevant time period should be two years
and not three as the Plaintiffs have produced no evidence that
Menorah's alleged FLSA-violative pay practices were willful.
However, as the Plaintiff points out, this is a merits
determination to be resolved after discovery, Judge Boyko points
out.
Therefore, the Court grants the Plaintiff's Motion for Conditional
Certification. It orders expedited discovery as outlined in the
Plaintiff's proposed order approved by the Court and docketed
herein. The Court also approves the Notice as attached at ECF #
43-5.
A full-text copy of the Court's Opinion and Order dated Feb. 4,
2021, is available at https://tinyurl.com/1lumjomc from
Leagle.com.
MERCEDES-BENZ USA: Faces Class Action Over Radiator Guards
----------------------------------------------------------
David A. Wood, writing for CarComplaints.com, reports that a
Mercedes-Benz class action lawsuit has been filed over radiator
guards that are allegedly needed to protect against damage from
rocks and other debris that cause damaged radiators and coolant
leaks.
According to the Mercedes class action lawsuit, these models were
formally equipped with wire mesh guards or injection-molded ABS
plastic to protect the aluminum radiators from rocks and pebbles.
2016-present Mercedes-Benz AMG GT
2016-present Mercedes-Benz AMG C43
2016-present Mercedes-Benz AMG C63
2016-present Mercedes-Benz AMG CLS63
2016-present Mercedes-Benz AMG E43
2016-present Mercedes-Benz AMG E63
2016-present Mercedes-Benz AMG S63
2016-present Mercedes-Benz AMG S65
2016-present Mercedes-Benz AMG SL63
2016-present Mercedes-Benz AMG SL65
2016-present Mercedes-Benz AMG SLC43
2016-present Mercedes-Benz AMG SLC63
2016-present Mercedes-Benz AMG G63
2016-present Mercedes-Benz AMG G65
2016-present Mercedes-Benz AMG GLC43
2016-present Mercedes-Benz AMG GLC63
2016-present Mercedes-Benz AMG GLE43
2016-present Mercedes-Benz AMG GLE63
2016-present Mercedes-Benz AMG GLS63
The Mercedes class action alleges the front bumper covers and air
inlets were equipped with protective grilles prior to 2016 model
years, which allegedly means Mercedes knew the vehicles needed the
guards.
Rocks that strike the radiator cause leaking coolant which leads to
insufficient coolant system pressure, a warped head and
catastrophic engine failure.
California plaintiff Hagop Hadjian purchased a new 2016
Mercedes-Benz AMG C63S, but within the first year he allegedly
noticed fluid was leaking and a warning appeared about low
coolant.
The plaintiff took his vehicle to a Mercedes dealership on March
27, 2017, and complained about the coolant leak and low coolant
warning.
The technician performed a coolant pressure test and allegedly
found, "INTERCOOLER FOR LOW CIRCUIT TURBO SYSTEM HAS A TINNY (sic)
HOLE FROM ROAD SOME MATERIAL. ESTIMATE PROVIDED. CUSTOMER DECLINED
REPAIR, CLIENT WAS ADVISED THE (sic) THIS COULD CAUSE MORE DAMAGE
EVEN TO THE ENGINE IF NOT REPAIRED."
Even though the vehicle was less than a year old and had only 9,000
miles on it, the class action lawsuit says the Mercedes dealer
refused to cover repairs under warranty.
The plaintiff says he took his vehicle to a different Mercedes
dealership which agreed to cover the labor costs for replacing the
low-temperature turbo radiator in his vehicle, but charged him
$1,050 for the repair.
However, the plaintiff alleges his radiator is still exposed to
rocks and debris because there are no guards or covers to prevent
the problem.
In May 2019, Mercedes-Benz announced Service Campaign 2019040010
for E-Class and GLC-Class vehicles to install grilles to protect
the radiators.
"Daimler AG ("DAG"), the manufacturer of Mercedes-Benz vehicles,
has determined that on certain Model Year ("MY") 2018-2019 E-Class
and GLC-Class (213, 253 platform) vehicles, the installed stone
chip guard does not correspond to current production
specifications. As a result, this may allow stones to contact the
radiator." - Service Campaign 2019040010
According to the Mercedes class action lawsuit, owners may have to
pay up to $80,000 to replace engines that fail due to overheating
from coolant leaks, and even replacing damaged radiators and
associated components gets expensive.
The class action also alleges Mercedes must know about the problems
based on customer complaints and the "sheer number and cost of
engine and radiator replacements."
The Mercedes-Benz class action lawsuit was filed in the U.S.
District Court for the Northern District of Georgia, Atlanta
Division: Hadjian, et al., v. Mercedes-Benz USA, LLC.
The plaintiff is represented by Berger Montague PC, and Capstone
Law APC. [GN]
MERCEDES-BENZ USA: Faces Hadjian Suit in Northern Dist. of Georgia
------------------------------------------------------------------
A class action lawsuit has been filed against Mercedes-Benz USA,
LLC. The case is captioned as Hadjian v. Mercedes-Benz USA, LLC,
Case No. 1:21-cv-00469-SCJ (N.D. Ga., Jan. 29, 2021).
The nature of suit states as contract product liability. The case
is assigned to the Hon. Judge Steve C. Jones.
Mercedes-Benz USA is the distributor for passenger cars of Daimler
AG in the United States located in Sandy Springs, Georgia, USA. It
is a subsidiary of Daimler AG and today sells cars from the
Mercedes-Benz brand.[BN]
The Plaintiff is represented by:
E. Michelle Drake, Esq.
Russell D. Paul, Esq.
BERGER & MONTAGUE, P.C. -- MN
43 SE Main Street, Suite 505
Minneapolis, MN 55414
Telephone: (612) 594-5999
Facsimile: (612) 584-4470
E-mail: emdrake@bm.net
MERCEDES-BENZ USA: Zaroukian Sues Over Defective Panoramic Sunroofs
-------------------------------------------------------------------
HILARET ZAROUKIAN, individually and on behalf of all others
similarly situated v. MERCEDES-BENZ USA, LLC and DAIMLER AG, Case
No. 1:21-cv-00472-MLB D (N.D. Ga., Jan. 29, 2021) alleges that the
Mercedes vehicles suffer from an inherent design, manufacturing
and/or materials defect whereby their panoramic sunroofs
spontaneously shatter without outside influence.
The Plaintiff contends that the alleged defect is inherent in every
Mercedes vehicle equipped with a panoramic sunroof (the Class
Vehicles.)
Panoramic sunroofs are aesthetically pleasing and command a premium
price. They also pose new and significant engineering challenges.
Replacing metal portions of automobile roofs with large sections of
glass requires precision in the strengthening, attachment, and
stabilization of the glass.
Allegedly, Mercedes, along with other manufacturers, failed to meet
these engineering challenges, with at least three manufacturers
issuing safety recalls due to the panoramic sunroofs' propensity to
spontaneously shatter.
Historically, automobile sunroofs have been modestly sized,
spanning just a small portion of the roof over the driver and front
passenger seats. Starting in the mid-2000s, automobile
manufacturers expanded sunroofs in size so that now on some
vehicles a sunroof (i.e., sheet(s) of glass) accounts for nearly
the entire roof of a vehicle. These expanded sunroofs are often
referred to as "panoramic."
Plaintiff Hilaret Zaroukian is a citizen of the State of California
residing in Los Angeles County.
Defendant Mercedes-Benz designs, manufactures, markets,
distributes, and sells Mercedes automobiles in multiple
locations in the United States and worldwide.
Defendant Daimler AG is a foreign corporation headquartered in
Stuttgart, Baden-Wurttemberg, Germany. Daimler AG is engaged in the
business of designing, engineering, manufacturing, testing,
marketing, supplying, selling, and distributing motor vehicles,
including the Class Vehicles, in the United States. Daimler AG also
developed, reviewed, and approved the marketing and advertising
campaigns designed to sell the Class Vehicles. Daimler AG is the
parent of, controls, and communicates with Mercedes-Benz USA, LLC
concerning virtually all aspects of the Class Vehicles distributed
in the United States. Mercedes-Benz USA, LLC acts as the sole
distributor for Mercedes-Benz vehicles in the United States,
purchasing those vehicles from Daimler AG in Germany for sale in
this country.[BN]
The Plaintiff is represented by:
Rachel Soffin, Esq.
Mark E. Silvey, Esq.
Gregory F. Coleman, Esq.
Adam A. Edwards, Esq.
GREG COLEMAN LAW PC
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Telephone: (865) 247-0080
Facsimile: (865) 522-0049
E-mail: rachel@gregcolemanlaw.com
mark@gregcolemanlaw.com
greg@gregcolemanlaw.com
adam@gregcolemanlaw.com
- and -
Steven R. Weinmann, Esq.
Tarek H. Zohdy, Esq.
Cody R. Padgett, Esq.
CAPSTONE LAW APC
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile: (310) 943-0396
E-mail: Steven.Weinmann@capstonelawyers.com
Tarek.Zohdy@capstonelawyers.com
Cody.Padgett@capstonelawyers.com
- and -
Joshua H. Haffner, Esq.
Graham G. Lambert, Esq.
HAFFNER LAW PC
445 South Figueroa Street, Suite 2625
Los Angeles, CA 90071
Telephone: (213) 514-5681
Facsimile: (213) 514-5682
E-mail: jhh@haffnerlawyers.com
gl@haffnerlawyers.com
MICHIGAN: Court Dismisses Most Claims in Richards v. Whitmer
------------------------------------------------------------
The U.S. District Court for the Western District of Michigan
dismissed most of the claims in the lawsuit styled KYLE B.
RICHARDS, Plaintiff v. GRETCHEN WHITMER, et al., Defendants, Case
No. 2:20-cv-122 (W.D. Mich.).
The Plaintiff is presently incarcerated with the Michigan
Department of Corrections ("MDOC") at the Baraga Correctional
Facility ("AMF") in Baraga, Baraga County, Michigan. The events
about which he complains occurred at that facility. The Plaintiff
sues Michigan Governor Gretchen Whitmer and MDOC Director Heidi
Washington. The Plaintiff also sues AMF staff Warden Kristopher
Taskila and Resident Unit Manager Unknown Perttu.
The case is a civil rights action brought by a state prisoner under
42 U.S.C. Section 1983 and, purportedly, under various other
federal and international laws. Originally, the Plaintiff filed his
complaint with the U.S. District Court for the Eastern District of
Michigan. On July 15, 2020, that court ordered the Plaintiff's case
transferred to the Western District of Michigan, which was
effectuated the following day. On July 28, 2020, this Court granted
the Plaintiff's request for leave to proceed with pauper status,
noting that although he had at least three strikes within the
meaning of 28 U.S.C. Section 1915(g), he had sufficiently alleged
imminent danger under the exception provided by that subsection.
When the Court granted Plaintiff leave to proceed with pauper
status, it informed him that it would screen the complaint under 28
U.S.C. Sections 1915(e), 1915A and/or 42 U.S.C. Section 1997e(c)(1)
and will determine whether dismissal or service of process is
appropriate. Yet, the Plaintiff has shown little interest in
waiting. In the time since the Court informed the Plaintiff that it
would screen the complaint, he has filed 10 motions with the Court;
five "supplements" either to the complaint or to pending motions;
and sent numerous letters to the Clerk of the Court requesting,
among other items, forms for issuing subpoenas.
Upon notification that the Plaintiff had served or attempted to
serve subpoenas on the Macomb County Prosecutor's Office--directing
the office to send him "[a]ll child pornographic materials that
have been collected or prosecuted by Macomb County within the last
30 years," including both photographs and videos--and on the
Embassy of Japan in the United States, the Court quashed both
subpoenas as abusive. The Court further ordered the Plaintiff to
cease serving subpoenas without the Court's authorization and to
file a response indicating the status of the other subpoena forms
issued by the Clerk of the Court.
In response to the Court's order, the Plaintiff filed two notices
of interlocutory appeal challenging the order, a motion requesting
leave to appeal with pauper status, an objection to the Court's
order, a motion for reconsideration of the Court's order, and a
response to the Court's order. Thus, presently before the Court is
the complaint and a series of the Plaintiff's pending motions.
Under Rule 21 of the Federal Rules of Civil Procedure, a court may
at any time, with or without motion, add or drop a party for
misjoinder or nonjoinder. Applying this standard, the Court will
dismiss without prejudice Defendants Whitmer, Washington, and
Taskila because they are misjoined.
Further, under the Prison Litigation Reform Act ("PLRA"), the Court
is required to dismiss any prisoner action brought under federal
law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief
from a defendant immune from such relief. The Court says it must
read the Plaintiff's pro se complaint indulgently, citing Haines v.
Kerner, 404 U.S. 519, 520 (1972), and accept the Plaintiff's
allegations as true, unless they are clearly irrational or wholly
incredible. The Court will dismiss all claims against Defendant
Perttu except for the Plaintiff's Eighth Amendment claims related
to physical assaults.
District Judge Hala Y. Jarbou notes that although the body of the
Plaintiff's complaint exceeds 30 pages and is organized into 13
claims, the complaint contains relatively few factual allegations
giving rise to a claim under Section 1983 or any other law. The
Plaintiff's few factual allegations relate to the multiple physical
attacks he has endured and believes he will continue to endure
while in prison. The Plaintiff believes he has been targeted
because, as he asserts, he identifies as a bisexual child lover
("BCL"), pedophile, and pedosexual, and "pedophiles in prison are
frequent targets of violence."
Connected to this identification, the Plaintiff alleges that he was
attacked at least 10 times in 2020. The assailants in most of these
attacks allegedly referenced the Plaintiff's attraction to
children. The Plaintiff contends that these attacks are hate crimes
within the description of 34 U.S.C. Section 30501 because he was,
and continues to be, targeted for his sexual orientation. The
Plaintiff appears to focus his first claim, however, on an argument
that the Defendants have been dismissive that his allegations
constitute hate-based violence under Section 30501. Additionally,
Defendant Perttu allegedly responded to the attacks on April 5, May
7, and June 15, 2020, but Perttu "refused to lock any of the
assailants up, or even remove them from the Plaintiff's
environment."
The Plaintiff further alleges, among other things, that the MDOC
does not adequately protect him. He asserts that the MDOC does not
place prisoners who identify as pedophiles in special housing. The
Plaintiff alleges that Defendants Whitmer, Washington, and Taskila
are aware that he has been attacked, but they have not provided
alternative housing. He further alleges that his mother called
Defendant Whitmer's office and spoke with her directly, but that
Whitmer's responses "were legally defensive, evasive, and geared at
avoiding liability."
Much of the complaint--claims 7 to 13--has no connection to, or
mention of, any of the Defendants. Instead, the Plaintiff
challenges the constitutionality of numerous child pornography and
obscenity criminal statutes found within Title 18 of the United
States Code. The Plaintiff asks that the Court issue declaratory
judgments finding 18 U.S.C. Sections 1460-1470 and 2250-2260
constitutionally invalid. The Plaintiff further requests that the
Court "fashion a new rule of law" to overturn the obscenity test
adopted by the United States Supreme Court in Miller v. California,
413 U.S. 15 (1973).
To justify these measures, the Plaintiff offers several arguments,
including that the statutes unlawfully discriminate against those
who identify as child lovers, pedophiles, and pedosexuals. For
relief, the Plaintiff seeks $930,000 in damages, as well as
injunctive and declaratory relief.
The Plaintiff further alleges that Defendant Perttu has been
deliberately indifferent to his safety and well-being by
encouraging other prisoners to attack him and failing to discipline
prisoners when they did attack him. The Plaintiff purports that
Defendant Perttu's conduct violated the Eighth and Fourteenth
Amendments, as well as what he identifies as two international
treaties: the Universal Declaration of Human Rights (UDHR) and the
Convention Against Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment (CAT).
Upon initial review, the Court determines that the Plaintiff has
alleged facts sufficient to state an Eighth Amendment Claim against
Defendant Perttu.
Judge Jarbou also finds that the Plaintiff's Fourteenth Amendment
claim appears to be grounded in his belief that prisoners, who have
attacked him because he identifies as a BCL, pedophile, and
pedosexual should be prosecuted for hate crimes, yet these
prisoners have not been charged. The Plaintiff is essentially
alleging that Defendant Perttu violated his constitutional rights
by failing to pursue an investigation and criminal prosecution of
his attackers. Judge Jarbou opines that the Plaintiff cannot compel
a criminal prosecution because private citizens, whether or not
they are incarcerated, cannot compel a criminal prosecution of
another. Therefore, the Plaintiff fails to state a Fourteenth
Amendment claim against Defendant Perttu.
Although the Plaintiff purports to bring his claims under both the
UDHR and CAT, he has not articulated on what basis he believes
Defendant Perttu--or any of the other Defendants--has violated
either international agreement, Judge Jarbou holds. Indeed, the
Plaintiff cannot. The Supreme Court has determined that the UDHR is
merely aspirational and "does not of its own force impose
obligations as a matter of international law." Sosa v.
Alvarez-Machain, 542 U.S. 692, 734 (2004). Accordingly, the
Plaintiff is unable to sustain a claim under either the UDHR or the
CAT.
To the extent the Plaintiff attempts to bring a claim against
Defendant Perttu within Claims 3 to 13 of the complaint, he fails
to state a claim, Judge Jarbou holds. The Plaintiff mentions
Defendant Perttu only twice within the entire span of Claims 3 to
13, and his allegations are entirely void of specific conduct. The
Plaintiff's allegations against Defendant Perttu found in Claims 3
to 13, therefore, fall far short of the minimal pleading standards
under Rule 8 of the Federal Rules of Civil Procedure. As a
consequence, the Plaintiff's claims against Defendant Perttu in
Claims 3 to 13 must be dismissed.
The Plaintiff indicates that he intends his complaint to serve as
the basis for a class action against the Defendants. He further
requests that the Court certify three classes: (1) persons
convicted of crimes related to child pornography who have been
discriminated against or denied safety while in prison; (2) Queer
individuals who identify as a child lovers, pedosexuals, or
pedophiles and have been threatened, assaulted, or harassed based
on their sexual orientation; and (3) Queer individuals who identify
as a child lovers, pedosexuals, or pedophiles who have been
discriminated against or denied services in prison based on their
sexual orientation.
Because the Plaintiff is an incarcerated pro se litigant, the Court
finds that he is not an appropriate representative of a class.
Therefore, the Court will deny the Plaintiff's request for class
certification.
The Plaintiff has also requested appointment of counsel to
represent him in this action. Judge Jarbou notes that appointment
of counsel is a privilege that is justified only in exceptional
circumstances. Notwithstanding the Plaintiff's argument in favor of
appointment, he has been an active litigant who has demonstrated
that he is highly capable of presenting his position. Therefore,
the Court will deny the Plaintiff's motions for appointment of
counsel at this juncture.
The Plaintiff has also filed a motion requesting that the Court
expedite screening. Despite delays, the Court has now screened the
complaint. The Court will, therefore, deny the Plaintiff's motion
as moot.
In his fourth pending motion, the Plaintiff asks to transfer the
case to the Eastern District of Michigan, because Defendant Perttu
claims to have told the Plaintiff that he had spoken to "the
presiding judge," has developed a relationship with said judge, and
that the said judge had told Perttu that the case would be
dismissed. In addition, Defendant Perttu allegedly told the
Plaintiff that he personally knew the other judges in this district
and that MDOC officials work closely with this Court. The Plaintiff
claims that, in light of the ex parte communications and the
relationships between Defendant Perttu and this Court,
disqualification of Judge Jarbou and transfer of venue are
required.
Notwithstanding Plaintiff's allegations about what Defendant Perttu
might have told him, this Court has no personal relationship with
Defendant Perttu or any other MDOC official, Judge Jarbou holds.
Indeed, the Plaintiff's action was reassigned from Judge Maloney to
Judge Jarbou for unrelated reasons while this motion was pending.
Judge Jarbou has never engaged in any ex parte discussions
concerning the Plaintiff's lawsuits with any state official.
Because the Court has no bias against the Plaintiff,
disqualification is unwarranted. Additionally, because the
Plaintiff's motion to transfer venue is wholly dependent on his
unsubstantiated claim of judicial bias, the motion will be denied.
The Plaintiff has filed a motion for a preliminary injunction
specifically requesting an order to freeze federal aid to the State
of Michigan.
As a preliminary matter, the Plaintiff has failed to demonstrate
that the injunctive relief he seeks is available to him, Judge
Jarbou says. After initial screening, Defendant Perttu is the only
Defendant who remains in the case. Yet, the Plaintiff seeks
injunctive relief against a non-party--the United States. The
relief he requests is extraordinarily intrusive, attempts to
control the United States in its direction of funds to the State of
Michigan, and would cause drastic harm to the State of Michigan,
Judge Jarbou opines. The relief requested in the Plaintiff's
motion, therefore, utterly fails to comply with the strictures of
Section 3626(a)(2). Accordingly, the Court will deny the
Plaintiff's motion.
The Plaintiff has filed a motion requesting a federal investigation
and further requesting ongoing monitoring. The Plaintiff justifies
his request with assertions that Defendant Perttu and non-party
Officer Hill have allegedly altered the Plaintiff's filings and
that non-party MDOC employee Sandin may enter an appearance in this
case on the Plaintiff's behalf.
The Court has carefully reviewed the Plaintiff's filings and found
nothing to suggest that they have been fraudulently altered by
Defendant Perttu or Officer Hill. Moreover, neither MDOC employee
Sandin nor anyone else has attempted to enter an appearance on the
Plaintiff's behalf. Absent any evidence validating the Plaintiff's
dubious allegations, the Court will deny his motion.
Upon discovering that the Plaintiff had co-opted the authority of
the Court by serving subpoenas soliciting child pornography and
that he abused the process by attempting to serve a subpoena on a
Foreign Sovereign before his complaint was screened, the Court
issued an order quashing those subpoenas and issuing the Plaintiff
sanctions under Rule 45. The Plaintiff has filed an objection and
motion for reconsideration.
Upon review and for the reasons previously set forth, this Court
finds no error in its order, and the Plaintiff's Objection and
Motion for Reconsideration fails to meet the standard set forth by
Rule 7.4(a). Accordingly, the Court will deny the Plaintiff's
objection and motion for reconsideration.
Conclusion
Having conducted the review under Rule 21 of the Federal Rules of
Civil Procedure, the Court determines that Defendants Whitmer,
Washington, and Taskila will be dropped from this action. The
Plaintiff's claims against these Defendants will be dismissed
without prejudice.
Having further performed the review required by the PLRA, the Court
will also dismiss, for failure to state a claim, all claims against
Defendant Perttu except for Eighth Amendment claims. The
Plaintiff's Eighth Amendment claims against Defendant Perttu,
specifically related to the encouragement of prisoners to attack
the Plaintiff, remain in the case.
A full-text copy of the Court's Opinion dated Feb. 4, 2021, is
available at https://tinyurl.com/5fqb4baf from Leagle.com.
MICROCHIP TECH: Discovery Ongoing in Jackson Putative Class Suit
----------------------------------------------------------------
Microchip Technology Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on February 4, 2021, for the
quarterly period ended December 31, 2020, that discovery is ongoing
in the putative class action suit entitled, Jackson v. Microchip
Technology Inc., et al., Case No. 2:18-cv-02914-JJT.
Beginning on September 14, 2018, the Company and certain of its
officers were named in two putative shareholder class action
lawsuits filed in the United States District Court for the District
of Arizona, captioned Jackson v. Microchip Technology Inc., et al.,
Case No. 2:18-cv-02914-JJT and Maknissian v. Microchip Technology
Inc., et al., Case No. 2:18-cv-02924-JJT.
On November 13, 2018, the Maknissian complaint was voluntarily
dismissed.
The Jackson complaint is allegedly brought on behalf of a putative
class of purchasers of Microchip common stock between March 2, 2018
and August 9, 2018.
The complaint asserts claims for alleged violations of the federal
securities laws and generally alleges that the defendants issued
materially false and misleading statements and failed to disclose
material adverse facts about the Company's business, operations,
and prospects during the putative class period.
The complaint seeks, among other things, compensatory damages and
attorneys' fees and costs on behalf of the putative class.
On December 11, 2018, the Court issued an order appointing the lead
plaintiff. An amended complaint was filed on February 22, 2019.
Defendants filed a motion to dismiss the amended complaint on April
1, 2019, which motion was granted in part and denied in part on
March 11, 2020.
The class certification was filed by the plaintiff on September 11,
2020, and defendants filed their response and statement of
non-opposition on October 16, 2020.
Discovery is ongoing.
Microchip Technology Inc. develops and manufactures semiconductor
products for various embedded control applications worldwide. The
company, which was incorporated in 1989, is based in Chandler,
Arizona.
MIDLAND CREDIT: Faces Silverman FDCPA Suit in S.D. New York
-----------------------------------------------------------
A class action lawsuit has been filed against Midland Credit
Management, Inc. The case is captioned as David Silverman v.
Midland Credit Management, Inc., Case No. 7:21-cv-00841-NSR
(S.D.N.Y., Jan. 29, 2021).
The suit alleges violations of the Fair Debt Collection Practices
Act involving consumer credit. The case is assigned to the Hon.
Judge Nelson Stephen Roman.
MCM provides debt recovery solutions for consumers across a broad
range of assets. MCM purchases portfolios of defaulted consumer
receivables and manages them by partnering with its consumers as
they repay their obligations and work toward financial
recovery.[BN]
The Plaintiff is represented by:
Jonathan Mark Cader, Esq.
Craig B. Sanders, Esq.
BARSHAY SANDERS, PLLC
100 Garden City Plaza, Suite 500, 5th Floor
Garden City, NY 11530
Telephone: (516) 203-7600
E-mail: jcader@barshaysanders.com
csanders@barshaysanders.com
MIDTOWN INVESTMENTS: Website Lacks Accessibility Info, Garcia Says
------------------------------------------------------------------
ORLANDO GARCIA, individually and on behalf of all others similarly
situated, Plaintiff v. MIDTOWN INVESTMENTS, INC. and DOES 1-10,
Defendant, Case No. 21STCV04836 (Cal. Super., Los Angeles Cty.,
February 8, 2021) is a class action against the Defendant for
violations of the Americans with Disabilities Act and the Unruh
Civil Rights Act.
The case arises from the Defendant's failure to provide information
about the accessible features in the rooms at the Rotex Hotel on
its reservation Website at https://rotexhotel.info/ for people with
disabilities, including the Plaintiff. The Website reservation
system lacks sufficient information needed by disabled travelers to
assess independently whether a given hotel room would work for
them. As a result, the Plaintiff is unable to engage in an online
booking of the hotel room with any confidence or knowledge about
whether the room will actually work for him due to his disability,
the suit says.
Midtown Investments, Inc. is an owner and operator of the Rotex
Hotel located at 3411 W. Olympic Blvd., Los Angeles, California.
[BN]
The Plaintiff is represented by:
Raymond Ballister Jr., Esq.
Russell Handy, Esq.
Amanda Seabock, Esq.
Zachary Best, Esq.
CENTER FOR DISABILITY ACCESS
8033 Linda Vista Road, Suite 200
San Diego, CA 92111
Telephone: (858) 375-7385
Facsimile: (888) 422-5191
E-mail: amandas@potterhandy.com
MILLER COUNTY, AR: Grissom's Bid to Certify Inmates Class Denied
----------------------------------------------------------------
Magistrate Judge Barry A. Bryant of the U.S. District Court for the
Western District of Arkansas denies the Plaintiff's motion for
class certification in the lawsuit styled CHARLES D. GRISSOM, JR.,
Plaintiff v. JACKIE RUNION, Sheriff Miller County; JEFFIE WALKER,
Warden Miller County Detention Center; Center ("OCDC"); SOUTHERN
HEATH CARE PARTNER; and NURSE STEVEN KING, Defendants, Case No.
4:21-cv-4003 (W.D. Ark.).
The Plaintiff filed the pro se civil rights pursuant to 42 U.S.C.
Section 1983 on January 26, 2021. His application to proceed in
forma pauperis was granted that same day. Currently before the
Court is the Plaintiff's "Class Certification Motion Pursuant to
Civil Rule 23.2 Action Relating to Uncorported Association."
Service was ordered on the Defendants on January 26, 2021. To date,
it appears no Defendants have been formally served. The Court has
determined no response is necessary from the Defendants to rule the
on instant motion and, therefore, the issue is ripe for
consideration.
In his Motion, the Plaintiff represents to the Court that 15 other
Miller County Detention Center inmates wish to join the case as
Plaintiffs and proceed as a class action lawsuit. He goes on to
state, "Plaintiff, Charles D. Grissom Jr. Et Al advocate this Class
Certification Motion as to assist the aboved Plaintiff's in this
Class Action as an Hold."
The Plaintiff identifies the following inmates in the caption of
his motion as those who desire to join in the lawsuit: Dannie
Tackett, Tony Fullbright, Robbert Harmon, Gergory Williams, Kenny
Howard, Robbert Dodge, Timmothy Jordan, Williams Boswell, Tony
Taylor, David Smith, Jose L. Aguilar, Kenneth Baradshaw, Micheal
Roberts, Richard L. Smith, and Troy C. Terry.
Under Rule 23(a) of the Federal Rules of Civil Procedure, a
plaintiff can sue as a representative of or on behalf of parties
only if: "(1) the class is so numerous that joinder of all members
is impracticable; (2) there are questions of law or fact common to
the class; (3) the claims or defenses of the representative are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class."
In particular, because of the requirement under Rule 23(a)(4) that
a class have adequate representation, courts have repeatedly
declined to allow pro se prisoners to represent a class in a class
action, Judge Bryant notes. Because the Plaintiff is not a licensed
attorney, he cannot satisfy the requirements of either Rule 23(a)
or Rule 23(g). He can, therefore, only bring the claims in his
individual capacity and not on behalf of a class.
As previously stated, the Plaintiff is attempting to add 15 inmates
currently incarcerated in the Miller County Detention Center as
Plaintiffs in the action. As interpreted by relevant case law, the
Prison Litigation Reform Act requires each prisoner who brings a
civil action to submit a separate complaint and a separate
application to proceed in forma pauperis. Accordingly, the
Plaintiff's motion for "Class Certification Motion Pursuant to
Civil Rule 23.2 Action Relating to Uncorported Association" is
denied.
The Clerk is directed to mail a 1983 Prisoner Litigation Packet to
each of the following 15 new prospective Plaintiffs at the Miller
County Detention Center:
* Dannie Tackett;
* Tony Fullbright;
* Robert Harmon;
* Gergory (Gregory) Williams;
* Kenny Howard;
* Robert Dodge;
* Timmothy (Timothy) Jordan;
* Williams Boswell;
* Tony Taylor;
* David Smith;
* Jose L. Aguilar;
* Kenneth Baradshaw (Bradshaw);
* Michael Roberts;
* Richard L. Smith; and
* Troy C. Terry.
A full-text copy of the Court's Order dated Feb. 4, 2021, is
available at https://tinyurl.com/53nkyknj from Leagle.com.
MODERN ROOFING: Faces Restrepo Suit Over Unpaid Wages, Retaliation
------------------------------------------------------------------
CARLOS E. RESTREPO, individually and on behalf of all others
similarly situated, Plaintiff v. MODERN ROOFING EXPERTS, INC.,
a/k/a MODERN ROOFING EXPERTS DBA MCE, LUIS D. FERNANDEZ, and MONIKA
NEUVIRTHOVA, Defendants, Case No. 2:21-cv-14080 (S.D. Fla.,
February 9, 2021) is a class action against the Defendants for
violations of the Fair Labor Standards Act by failing to compensate
the Plaintiff and Class members appropriate minimum wage and
overtime pay for all hours worked, failing to keep accurate time
records, and terminating employment based on retaliation.
The Plaintiff was hired by the Defendants as a driver from
approximately September 01, 2020 to December 24, 2020.
Modern Roofing Experts, Inc. is a construction company specialized
in commercial and residential roofing, installation of impact
windows and doors, and related construction services, with its
principal place of business located at 834 SE Lincoln Avenue,
Stuart, Florida. [BN]
The Plaintiff is represented by:
Zandro E. Palma, Esq.
ZANDRO E. PALMA, P.A.
9100 S. Dadeland Blvd., Suite 1500
Miami, FL 33156
Telephone: (305) 446-1500
Facsimile: (305) 446-1502
E-mail: zep@thepalmalawgroup.com
MONROE COUNTY, NY: Restaurants Allowed to Break COVID Curfew
------------------------------------------------------------
Natalie Kucko, writing for WHAM, reports that some Monroe County
business owners feel left out after a class-action lawsuit granted
94 restaurants the ability to stay open past 10 p.m.
Saturday night, Feb. 6, tables filled up quickly at Robbie's Bar
and Grill. The owner said it's a weight lifted to operate during
normal hours.
"It's huge. The excitement, I can't even sleep. I've been on cloud
nine," said Robbie Tennant, owner of Robbie's Bar and Grill. Yet,
Tennant said the pressure is building.
"Now I'm a target. I am worried about that, I am worried about the
repercussions. Again, we are doing everything we can to make sure
we don't ruin this for everyone else," said Tennant.
A judge granted Monroe and Erie County restaurants included in the
lawsuit a temporary restraining order, but other businesses listed
will not be able to return to normal hours this weekend.
"We're obviously happy our local businesses are able to start to
catch up on what they've lost," said Connie Macleod, general
manager of Bathtub Billy's. The Greece restaurant was included in
the lawsuit, but not granted permission to stay open past 10 p.m.
"We fight to keep our customers here. We have a really good
football base. It's just really sad to know it'll be pretty much
empty tomorrow," Macleod said, referring to the big game on Feb.
7.
"It's very frustrating you can drive two miles down the street and
be able to stay until midnight, where here you have to be out by 10
p.m.," said Macleod.
The attorney's office said they expect a ruling from a Monroe
County Judge later this week for businesses part of the second
class, including Bathtub Billy's. [GN]
MPC HOLDINGS: Class Certification Bid Stricken in Morris FLSA Suit
------------------------------------------------------------------
In the class action lawsuit captioned as Morris v. MPC Holdings,
Inc., Case No. 1:20-cv-02840 (D. Colo.), the Hon. Judge Christine
M. Arguello entered an order striking motion to certify Class for
failure to comply with D.C.COLO.LCivR 7.1.
The suit alleges violation of the Fair Labor Standards Act.[CC]
MPC HOLDINGS: Morris Seeks to Certify Class of Day Rate Inspectors
------------------------------------------------------------------
In the class action lawsuit captioned as MARCUS MORRIS v. MPC
HOLDINGS, INC. D/B/A PLATTE RIVER INSPECTION SERVICES, Case No.
1:20-cv-02840-CMA-NYW (D. Colo.), the Plaintiff asks the Court to
enter an order granting conditional certification of and
authorizing notice be sent to:
"all current and former inspectors who worked for or on
behalf of Platte River Inspection Services and who were paid
according to its day rate pay plan in the past three years
(the "Day Rate Inspectors").
Mr. Morris worked for Platte River as a Day Rate Inspector
performing various roles as a Coating Inspector, Horizontal
Drilling Inspector, and Welding Inspector in Colorado.
Platte River Inspection Services is an innovative solutions
provider in the oil and gas industry.
A copy of the Plaintiff's motion to certify class dated Feb. 2,
2020 is available from PacerMonitor.com at https://bit.ly/2LFiqrI
at no extra charge.[CC]
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq
Carl A. Fitz, Esq
JOSEPHSON DUNLAP LAW FIRM
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: mjosephson@mybackwages.com
adunlap@mybackwages.com
cfitz@mybackwages.com
- and -
Richard J. (Rex) Burch, Esq.
BRUCKNER BURCH, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
MUIR LONGBOARD: Quezada Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Muir Longboard Shop,
Inc. The case is styled as Jose Quezada, on behalf of himself and
all others similarly situated v. Muir Longboard Shop, Inc., Case
No. 1:21-cv-01243 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Muir Longboard Shop -- https://www.muirskate.com/ -- run by
skateboard enthusiasts focuses solely on quality, custom-assembled
longboards.[BN]
The Plaintiff is represented by:
Mars Khaimov, Esq.
10826 64th Avenue, Ste. 2nd Floor
Forest Hills, NY 11375
Phone: (917) 915-7415
Email: marskhaimovlaw@gmail.com
NATIONAL FOOTBALL: Gill Sues Over Game Pass Livestream Subscription
-------------------------------------------------------------------
SIETEL SINGH GILL, individually and on behalf of other similarly
situated individuals, Plaintiffs v. NATIONAL FOOTBALL LEAGUE; NFL
ENTERPRISES, LLC; Defendants, Case No. 1:21-cv-01032 (S.D.N.Y.,
Feb. 4, 2021) is a class action by the Plaintiff and the Class who
purchased the Defendants' Game Pass International Weekly or Annual
"Pro" Subscription ("Game Pass"), which should have provided
uninterrupted live streaming of the February 2, 2020 Super Bowl LIV
("Super Bowl").
The Plaintiff alleges in the complaint that as a result of
Defendants' technical or other failures, Game Pass crashed multiple
times during the Super Bowl, and the Plaintiff and Class Members
were unable to livestream crucial portions of the game, including
the final three minutes when the teams were locked in a one-score
game.
The Defendants' alleged conduct constitutes breach of contract,
breach of implied warranty of merchantability, and unjust
enrichment for which class redress is warranted.
National Football League (NFL) manages a professional sports
league. The Company offers news, scores, teams, games, tickets, and
other related services. [BN]
The Plaintiff is represented by:
Karl S. Kronenberger, Esq.
KRONENBERGER ROSENFELD, LLP
150 Post Street, Suite 520
San Francisco, CA 94108
Telephone: (415) 955-1155
Facsimile: (415) 955-1158
E-mail: karl@KRInternetLaw.com
-and-
Eugene Rome, Esq.
ROME & ASSOCIATES, A.P.C.
2029 Century Park East, Suite 450
Los Angeles, CA 90067
Telephone: (310) 282-0690
Facsimile: (310) 282-0691
E-mail: eugene@romeandassociates.com
NECA/IBEW FAMILY: Court Modifies Class Certification in D.T. Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as D.T., by and through his
parents and guardians, K.T. and W.T., individually, on behalf of
similarly situated individuals, and on behalf of the NECA/IBEW
Family Medical Care Plan, v. NECA/IBEW FAMILY MEDICAL CARE PLAN,
THE BOARD OF TRUSTEES OF THE NECA/IBEW FAMILY MEDICAL CARE PLAN,
SALVATORE J. CHILIA, ROBERT P. KLEIN, DARRELL L. MCCUBBINS, GEARY
HIGGINS, LAWRENCE J. MOTER, JR., KEVIN TIGHE, JERRY SIMS, AND ANY
OTHER INDIVIDUAL MEMBER OF THE BOARD OF TRUSTEES OF NECA/IBEW
FAMILY MEDICAL CARE PLAN, Case No. 2:17-cv-00004-RAJ (W.D. Wash.),
the Hon. Judge Richard A. Jones entered an order modifying class
certification for the purpose of settlement, as follows:
"all individuals who:
(1) have been, are or will be participants or beneficiaries
under the NECA-IBEW Family Medical Care Plan at any time
between January 4, 2011 and March 31, 2021, inclusive;
and
(2) while they were eligible for benefits under the Plan and
during the Settlement Class Period incurred out-of-pocket
expenses or incurred but not yet paid expenses for
neurodevelopmental therapy (speech, occupational or
physical therapy) or applied behavior analysis therapy to
treat a "Qualified Mental Health Condition."
"Qualified Mental Health Condition" shall mean a
condition listed in Appendix A of the Settlement
Agreement and excluded under the Plan's Development Delay
Exclusion.
The Court further confirms that the Named Plaintiff D.T., by and
through his parents, K.T. and W.T., shall continue as class
representative and Richard E. Spoonemore, and Eleanor Hamburger of
Sirianni Youtz Spoonemore Hamburger PLLC shall continue as class
counsel.
A copy of the Court's order modifying class certification for the
purpose of settlement dated Feb. 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3rO9teW at no extra charge.[CC]
NETFLIX INC: Lancaster Joins Class Action Over Streaming Services
-----------------------------------------------------------------
Antelope Valley Press reports that the City has joined a class
action complaint against Netflix and Hulu in January over payment
for streaming services traveling over broadband wireline facilities
that utilize the public right of way.
In the complaint, the city says the streaming services are required
to pay 5% of their gross revenue derived from their operations in
California cities, counties, and joint powers authorities because
of the use of those facilities.
"Accordingly, Defendants should be and are required by law to pay
each of those cities, counties, cities and counties, or joint
powers authorities a video service provider fee of up to 5% of
their gross revenue, as derived from their providing video service
in that city, county, city and county, or joint powers authority,"
the complaint said.
Attorneys from the California law firms of Andrus Anderson and
Schneider Wallace Cottrell Konecky, Texas law firm Nix Patterson,
and Chicago law firm DiCello Levitt Gutzler filed the complaint on
Jan. 15. Nix Patterson and DiCello Levitt Gutzler filed similar
complaints on behalf of cities in Nevada, Ohio, and Texas.
California does not tax streaming services such as Netflix, Hulu
and Spotify. [GN]
NEW YORK CITY: Class Action Settlement Wins Preliminary Approval
----------------------------------------------------------------
In the class action lawsuit captioned as DANIELLE ROSENFELD and
VINCENT GARCIA, on behalf of themselves and all others similarly
situated, v. TARA LENICH; CITY OF NEW YORK; LU-SHAWN M. THOMPSON,
AS ADMINISTRATOR OF ESTATE OF KENNETH P. THOMPSON; ERIC GONZALEZ;
MARK FELDMAN; WILLIAM SCHAEFER; BRIAN DONOHUE; WILLIAM POWER;
MICHAEL DOWLING; JOSEPH PIRAINO; and ROBERT KENAVAN, Case No.
1:18-cv-06720-NGG-PK (E.D.N.Y.), the Hon. Judge Nicholas G.
Garaufis entered an order:
1. granting the Plaintiffs' unopposed Motion for Preliminary
Approval of a Class Action Settlement;
2. granting preliminary class certification;
3. appointing class counsel; and
4. approving proposed notice procedures and class
administrator; and
5. adopting the Plaintiffs' proposed schedule of events
related to the Fairness Hearing and will hold the hearing
by videoconference on September 23, 2021 at 10:00 a.m.
Settlement Terms:
-- On August 7, 2020, the Named Plaintiffs filed a Motion
for Preliminary Approval of a $3.2 million class
settlement agreement with the City Defendants.
-- The Settlement Agreement defines the Settlement Class
as "[a]ll persons or entities, including the Class
Representatives, whose wire or electronic
communications with Stephanie Rosenfeld's personal
cellular phone and/or with Jarrett Lemieux's personal
cellular phone were intercepted using the [wiretap]
system at the Kings County District Attorney's Office
during the Class Period."
-- An "entity" (non-human) belongs to the Settlement Class
only if the human person who used the entity's phone
number cannot be identified.
-- Stephanie Rosenfeld and Jarrett Lemieux are not
included in the Settlement Class.
-- The Settlement Agreement calls for the $3.2 million
award to be distributed among class members based on
the number of each member's communications that were
intercepted, according a system of "Award Units": a
class member with one intercepted communication is
assigned 6 Award Units; a class member with at least
two but no more than ten intercepted communications is
assigned 7.5 Award Units; a class member with at least
eleven but no more than 100 intercepted communications
is assigned 10 Award Units; and a party with more than
100 intercepted communications is assigned 15 Award
Units.
-- The minimum value of an Award Unit is $756, and the
maximum value is $1,000, depending on how many class
members in each category submit timely claims
-- Thus, every class member will receive at least $4,536
and no more than $15,000.
The Plaintiffs Danielle Rosenfeld and Vincent Garcia bring this
putative class action against the Defendants, on behalf of
themselves and all other persons or entities whose communications
were illegally wiretapped by Ms. Lenich over a period spanning June
2015 to November 2016. The Plaintiffs claim that they are entitled
to statutory damages under Title I of the Electronic Communications
Privacy Act of 1986, known as the Wiretap Act.
A copy of the Court's order dated Feb. 4, 2020 is available from
PacerMonitor.com at https://bit.ly/3dire2n at no extra charge.[CC]
NICK'S MANAGEMENT: Predmore Suit Stayed; Bid to Arbitrate Granted
-----------------------------------------------------------------
The U.S. District Court for the Northern District of Texas grants
the motion to compel arbitration and stay the litigation in the
lawsuit styled JULIA PREDMORE, individually and on behalf of all
others similarly situated, Plaintiff v. NICK'S MANAGEMENT, INC.,
NICK'S CLUBS, INC. f/k/a ADVENTURE PLUS ENTERPRISES, INC. d/b/a
PT'S MEN'S CLUB, and NICK MEHMETI, Defendants, Case No.
3:20-CV-00513-X (N.D. Tex.).
The case arises out of the alleged misclassification of exotic
dancers as independent contractors. The Plaintiff, Julia Predmore,
claims that the Defendants misclassified her as an independent
contractor instead of an employee, resulting in violations of the
Fair Labor Standards Act.
The Defendants moved to dismiss due to an arbitration agreement
and/or stay the litigation and compel arbitration. Predmore then
moved to certify a collective action, and the Defendants requested
a stay of the motion to certify a collective action.
After careful consideration, the Court denies the motion to dismiss
due to the arbitration clause but grants the motion to compel
arbitration and stay this litigation. Accordingly, the Court
dismisses as moot Predmore's motion to certify a collective action
and dismisses as moot the Defendants' motion to stay certification
of a collective action. The Court administratively closes this case
and will reopen it upon the filing of a motion regarding the
arbitration award.
The Defendants claim that Predmore signed a valid Licensing
Agreement that included: (1) a clause compelling arbitration of any
"disputes arising under the Agreement as well as any disputes that
may have arisen at any time during the relationship between the
parties," and (2) a class-action waiver.
Ms. Predmore signed the Licensing Agreement on February 13, 2019.
By signing the Agreement, Predmore also acknowledged that she had
read and reviewed the Agreement including the attached terms and
conditions in its entirety, and that she had been given an
opportunity to ask the Club questions about it or express any
concerns about the Agreement, and that she had an opportunity to
consult with an attorney. That agreement also contained an
arbitration clause. The language of the Agreement satisfies the
Defendants' initial burden.
The burden now shifts to Predmore to offer some evidence that the
Agreement is invalid. But she offers none, District Judge Brantley
Starr states. Predmore does not claim that she did not sign the
Agreement or that she lacked the mental capacity to consent;
instead, she argues that the Agreement is substantively and
procedurally unconscionable. Because the Defendants satisfied their
initial burden, and Predmore failed to offer any evidence to rebut
the existence of a valid agreement, the Court finds that the
parties created a valid arbitration agreement under Texas law.
Before the Court can consider Predmore's unconscionability
challenges, it must determine whether the Agreement contains a
delegation clause. The Agreement states that to the fullest extent
permitted by law, the arbitrator will apply the commercial
arbitration rules of the American Arbitration Association. The
Court finds that this language evinces a clear and unmistakable
intent to arbitrate arbitration agreement. The Agreement,
therefore, contains a delegation clause.
When a contract contains a delegation clause, the Court's analysis
is limited to specific challenges to the delegation clause. If a
party challenges the contract as a whole, the Court must leave that
determination to the arbitrator. So, the Court's analysis of
Predmore's unconscionability arguments hinges on whether they are
challenges to the contract in its entirety or to the delegation
clause specifically.
Ms. Predmore argues that the arbitration agreement is procedurally
unconscionable because: (1) the Club required dancers to sign it as
a condition of employment; (2) they did not have adequate time to
review it; (3) the Club did not present them with an explanation of
the terms; (4) they are not highly educated; and (5) the opt-in
plaintiff does not speak English as a first language.
The Court finds that none of these bases of alleged procedural
unconscionability challenge the delegation clause specifically. The
conditions under which Predmore and the opt-in plaintiff signed the
Agreement are not isolated to the delegation clause; they are
inherently related to the contract in its entirety. For example,
the fact that the Club required dancers to sign the Agreement as a
condition of employment is not tied only to the delegation clause;
dancers were required to sign the contract in its entirety. Because
Predmore's procedural-unconscionability arguments attack the
Agreement as a whole, it is for the arbitrator--not the Court--to
resolve whether the Agreement is procedurally unconscionable.
Importantly, Predmore explained that she is not contesting any of
the terms of her agreement--she is instead contending that the
Agreement is a sham and that she, along with other exotic dancers,
was in fact an employee. Viewed against this backdrop, Predmore's
substantive-unconscionability claims target the contract as a whole
and not the delegation clause specifically.
Judge Starr notes that Predmore appears to argue that the Agreement
is substantively unconscionable for two separate, but interrelated,
reasons: (1) the cost-splitting provision would "force dancers to
pay hefty costs just to commence an arbitration proceeding;" and
(2) the cost-splitting provision conflicts with her statutory
rights under the Act. Although Predmore mentions the delegation
provision in passing, her argument is not in reality tailored to
the delegation provision. Had Predmore challenged "the delegation
provision by arguing that these common procedures as applied to the
delegation provision rendered that provision unconscionable," the
Court would be bound to consider the challenge.
But Predmore did not do that, Judge Starr finds. Indeed, she made
clear that she was challenging the Agreement as a whole, not the
delegation provision. Therefore, the arbitrator must assess her
substantive-unconscionability challenges.
Finally, the Court addresses whether Club owner Nick Mehmeti and
Nick's Management, as non-signatories, may compel arbitration. The
parties do not dispute that the Club is a signatory to the
Agreement; as such, it may enforce the Agreement. But the parties
do dispute whether non-signatories Nick's Management and Mehmeti
can enforce the Agreement.
The Defendants argue that because Mehmeti and Nick's Management are
agents of the Club, they did not need to sign the Agreement. They
also argue that they did not need to sign because equitable
estoppel and/or the intertwined-claim theory applies. But whether
Mehmeti and Nick's Management can compel arbitration pursuant to
these legal theories is a question for the arbitrator. That is so
because the scope of who is covered by the term "parties," as used
in the Agreement is a question of contract interpretation, not
contract formation.
The Defendants urge the Court to either dismiss the action upon
compelling arbitration or to stay the action and compel
arbitration. Predmore argues that a stay is the appropriate remedy.
The Court agrees with Predmore.
For these reasons, the Court denies the Defendants' motion to
dismiss but grants their motion to stay and compel arbitration. It
dismisses as moot Predmore's motion to certify a collective action
and dismisses as moot the Defendants' motion to stay the
certification of a collective.
A full-text copy of the Court's Memorandum Opinion and Order dated
Feb. 4, 2021, is available at https://tinyurl.com/5dx9az6e from
Leagle.com.
NICOLAS THOMAS SCOTT: Scott Buying Kit Carson County Land for $76K
------------------------------------------------------------------
Nicolas Thomas Scott and Mandy Lea Scott ask the U.S. Bankruptcy
Court for the District of Colorado to authorize the sale of the
real property described as Township 8 South, Range 42 West of the
6th Principal Meridian, Section 33 SE 4, in Kit Carson County,
Colorado, also known as SE4 33-8S-42W ("Land"), to Scott Land, LLC
for $75,500.
Creditor MNB Bank obtained an appraisal of the Land dated Jan. 30,
2020. In the Appraisal, the Land is described as follows: "The
SE/4 33-8-42 includes 23.5 acres irregularly shaped CRP tract near
the west-middle of the quarter with an annual payment of
approximately $35.00/acre (per owner). The 23.5 acres has 1 payment
remaining (expires 2020) and 81.2 acres is expired CRP grass
(expired 2015). Payments provided by owner, and are assumed to be
reasonably accurate. Approximately 54.2 acres rolling native grass
located on the north side of the quarter. No on-site water."
The Appraisal includes a valuation of the Land in the amount of
$239,000.
The Debtors have entered a contract for the sale of the Land to
Scott Land, subject to Court approval.
MNB has or may assert a lien against the Land pursuant to following
recorded instruments ("DOT Liens"):
(a) Deed of Trust securing an indebtedness not to exceed $11
million recorded with the Kit Carson County Clerk and Recorder on
May 31, 2017 at Reception No. 00573986;
(b) Deed of Trust securing an indebtedness not to exceed
$3,053,400 recorded with the Kit Carson County Clerk and Recorder
on Jan. 5, 2015 at Reception No. 201500567374; and,
(c) Deed of Trust securing an indebtedness not to exceed $5
million recorded with the Kit Carson County Clerk and Recorder on
May 1, 2013 at Reception No. 201300562962.
MNB also asserts judgment liens against the Land pursuant to
following recorded transcripts of judgments ("Judgment Liens"):
(a) Transcript of Judgment in the amount of $155,306.16
recorded with the Kit Carson County Clerk and Recorder on Feb. 28,
2020 at Reception No. 00580451;
(b) Transcript of Judgment in the amount of $77,536.36
recorded with the Kit Carson County Clerk and Recorder on Feb. 28,
2020 at Reception No. 00580452;
(c) Transcript of Judgment in the amount of $2,333,239.25
recorded with the Kit Carson County Clerk and Recorder on Feb. 28,
2020 at Reception No. 00580453;
(d) Transcript of Judgment in the amount of $547,278.46
recorded with the Kit Carson County Clerk and Recorder on Feb. 28,
2020 at Reception No. 00580454; and,
(e) Transcript of Judgment in the amount of $3,840,337.83
recorded with the Kit Carson County Clerk and Recorder on Feb. 28,
2020 at Reception No. 00580455.
The validity and extent of the DOT Liens and the Judgment Liens are
at issue in (a) the pending litigation between the Debtors and MNB
in the Kit Carson County District Court Case No. 2018CV30026 set
for trial to commence in April 2021 and (b) the pending appeal in
Colorado Court of Appeals Case No. 2020CA000523 of the judgment
from which the Judgment Liens arose.
The Debtors have entered a contract for the sale of the Land to the
Buyer subject to Court approval. They propose to sell the Land
free and clear of liens, encumbrances, and interests.
The Contract includes the following terms:
a. The Buyer will provide an earnest money deposit in the
amount of $3,775, which amount will be held by Kit Carson County
Abstract pending closing;
b. The sale price is $75,500;
c. The sale includes water rights of record or appurtenant to
the Land, if any;
d. The Land is being sold "as is, where is" and "with all
faults";
e. Title will be conveyed by general warranty deed;
f. Closing costs will be paid one-half by Debtors and one-half
by the Buyer;
g. The lease payment for 2021 due on the Land will be
pro-rated to the date of closing between the Debtors and the Buyer.
To the extent the above summary is inconsistent with the terms and
conditions found in the Contract, the Contract will control.
The Buyer is owned by Marilyn Scott. Ms. Scott is the Debtors'
grandmother.
Pursuant to 11 U.S.C. Sections 361(2) and 363(e), if the sale is
approved, adequate protection will be provided to MNB in the form
of a replacement lien on the proceeds of the sale, which will be
held by the Debtors in a segregated account pending further orders
of the Court.
A copy of the Contract is available at https://tinyurl.com/8upkupz9
from PacerMonitor.com free of charge.
The Purchaser:
SCOTT LAND, LLC
310 S 15th Street
Burlington, CO 80807
Nicolas Thomas Scott and Mandy Lea Scott sought Chapter 11
protection (Bankr. D. Colo. Case No. 20-14159 KHT) on June 17,
2020.
NORFOLK SOUTHERN: Continues to Defend Fuel Surcharge-Related Suit
-----------------------------------------------------------------
Norfolk Southern Corporation said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 4,
2021, for the fiscal year ended December 31, 2020, that the company
continues to defend multiple lawsuits, including consolidated cases
in the District of Columbia, related to fuel surcharges.
In 2007, various antitrust class actions filed against us and other
Class I railroads in various Federal district courts regarding fuel
surcharges were consolidated in the District of Columbia by the
Judicial Panel on Multidistrict Litigation.
In 2012, the court certified the case as a class action.
The defendant railroads appealed this certification, and the Court
of Appeals for the District of Columbia vacated the District
Court's decision and remanded the case for further consideration.
n October 10, 2017, the District Court denied class certification.
The decision was upheld by the Court of Appeals on August 16, 2019.
Since that decision, various individual cases have been filed in
multiple jurisdictions and also consolidated in the District of
Columbia.
Norfolk said, "We believe the allegations in the complaints are
without merit and intend to vigorously defend the cases. We do not
believe the outcome of these proceedings will have a material
effect on our financial position, results of operations, or
liquidity."
No further updates were provided in the Company's SEC report.
Norfolk Southern Corporation, together with its subsidiaries,
engages in the rail transportation of raw materials, intermediate
products, and finished goods. Norfolk Southern Corporation was
founded in 1883 and is based in Norfolk, Virginia.
NORTH DAKOTA: ACLU Files Brief in Support of Road Closure Suit
--------------------------------------------------------------
David Olson, writing for inForum, reports that the American Civil
Liberties Union is weighing in on a lawsuit that claims state and
county authorities violated free speech rights of groups protesting
the Dakota Access pipeline by shutting down a North Dakota highway
during the height of protests over the pipeline.
In an amicus brief filed recently with the U.S. Court of Appeals
for the Eighth Circuit, the ACLU and the ACLU of North Dakota
stated that public streets are traditional public forums and roads
of every kind have served as sites of protest throughout U.S.
history, including the civil rights marches and the anti-war
demonstrations of the 1960s and 1970s.
Protests connected to the Dakota Access pipeline were no different,
the ACLU said in a statement announcing its filing of the amicus
brief in a lawsuit initially filed in U.S. District Court in 2018
by two members of the Standing Rock Sioux tribe and a reservation
priest.
The suit seeks unspecified monetary damages from the state of North
Dakota, Morton County and TigerSwan, a North Carolina-based firm
that oversaw private security for pipeline developer Energy
Transfer Partners.
The suit claims that closing the highway violated a number of
rights, including the right to free speech.
Last fall, a U.S. District Court judge partially granted motions
made by the state of North Dakota and Morton County by dismissing
six of the seven claims brought by the plaintiffs, allowing only
one claim -- that First Amendment rights were violated by the road
closure -- to proceed.
The county appealed that decision, maintaining that all seven
claims should have been dismissed.
In supporting the district court's order from last fall, Andrew
Malone, ACLU of North Dakota staff attorney, said in a news
release:
"The Supreme Court has recognized that our right to protest in the
streets is a time-honored and cherished right. It is high time for
police officers, prosecutors, other government attorneys and
legislators to do the same."
In court filings, the state of North Dakota said the plaintiffs are
not entitled to any damages, fees, or other relief resulting from
any conduct of the state and that no class action is warranted.
The state also maintains plaintiffs cannot show they have suffered
any constitutional violation.
The suit was initially brought by Cissy Thunderhawk, a reservation
businesswoman; Waste'Win Young, a pipeline opponent; and the Rev.
John Floberg, of St. James' Episcopal Church in Cannon Ball, N.D. A
fourth individual, José Zhagñay, later joined the suit as a
plaintiff.
Demonstrations drew thousands of people to southern North Dakota
during pipeline construction in 2016 and 2017.
During one six-month period, more than 700 people were arrested.
The pipeline began operations in early 2017.
During the protests, officials barricaded a portion of Highway 1806
in October 2016 around the time that a bridge was damaged by
fires.
A brief recently filed by the plaintiffs states the five-month
closure of the highway was implemented several days before any
damage was done to the bridge and that the road remained closed for
nearly a month after any unrest had ceased. [GN]
NORTONLIFELOCK INC: Trial in California Class Suit Set for June 14
------------------------------------------------------------------
NortonLifeLock, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended January 1, 2021, that a trial date has been
set for June 14, 2021, in the consolidated securities class action
suit pending before the U.S. District Court for the Northern
District of California.
Securities class action lawsuits, which have since been
consolidated, were filed in May 2018 against us and certain of our
former officers, in the U.S. District Court for the Northern
District of California.
The lead plaintiff's consolidated amended complaint alleged that,
during a purported class period of May 11, 2017 to August 2, 2018,
defendants made false and misleading statements in violation of
Sections 10(b) and 20(a), and that certain individuals violated
Section 20A, of the Securities Exchange Act.
Defendants filed motions to dismiss, which the Court granted in an
order dated June 14, 2019. Pursuant to that order, plaintiff filed
a motion seeking leave to amend and a proposed first amended
complaint on July 11, 2019.
The Court granted the motion in part on October 2, 2019 and the
first amended complaint was filed on October 11, 2019.
The Court's order dismissed certain claims against certain of our
former officers. Defendants filed answers on November 7, 2019.
A trial date has been set for June 14, 2021.
No further updates were provided in the Company's SEC report.
NortonLifeLock, Inc. engages in the provision of security, storage,
and systems management solutions. It operates through Enterprise
Security and Consumer Digital Safety segments. The Consumer Digital
Safety segment provides solutions to protect information, devices,
networks and the identities of consumers. The company is based in
Tempe, Arizona.
NYCDOE: M.G. Suit Seeks to Certify Class of Students with IEPs
--------------------------------------------------------------
In the class action lawsuit captioned as M.G., a minor, by and
through his parent and natural guardian R.G.; G.J., a minor, by and
through his parent and natural guardian, C.J., on behalf of
themselves and a class of those similarly situated, and BRONX
INDEPENDENT LIVING SERVICES, a nonprofit organization, v. THE NEW
YORK CITY DEPARTMENT OF EDUCATION; THE CITY OF NEW YORK; RICHARD A.
CARRANZA, in his official capacity as Chancellor of the New York
City Department of Education, Case No. 1:17-cv-05692-PGG
(S.D.N.Y.), the Plaintiff asks the Court to enter an order:
1. certifying the proposed Class consisting of:
"all students with individualized education programs
("IEPs") (a) who, during the period from July 27, 2015, to
the last day of the Court's jurisdiction to enforce this
Agreement, including any extensions thereof ("Ending
Date"), attend, have attended, or will attend public
schools operated by the New York City Department of
Education ("DOE") and located in the Bronx; (b) whose IEPs
include recommendations for one or more related services,
as defined in this Agreement, or did recommend such
services during the period between July 27, 2015, and the
Ending Date; and (c) who are eligible to receive related
services under the Individuals with Disabilities Education
Act. Students with IEPs who attended a DOE public school
located in the Bronx between July 27, 2015, and March 13,
2020, but as of the date of this Agreement do not attend a
DOE public school located in the Bronx, must have had an
RSA issued on or after July 27, 2015, while they attended
a DOE school in the Bronx, but did not receive their
related services pursuant to such RSA during the period
between July 27, 2015, and March 13, 2020;"
2. appointing themselves as Class representatives;
3. appointing their counsel as Class counsel;
4. preliminarily approving the proposed Settlement Agreement;
and
5. approving the proposed notices and proposed schedule for
disseminating the notice and seeking final approval.
Summary of the Settlement:
A. Modifications to the DOE's Policies, Practices, and
Procedures
-- Allocate sufficient funding by the summer preceding
each school year of the Agreement period to support
offers of employment for projected full-time
occupational therapy ("OT"), physical therapy
("PT"), speech therapy, and counseling positions at
New York City Department of Education (DOE) schools
in the Bronx for the ensuing school year;
-- Increase the number of OT supervisors in the Bronx;
and
-- Increase funding to the DOE's Related Service
Scholarship and Loan Forgiveness Program.
B. Monitoring
-- Additionally, the Plaintiffs will monitor the DOE's
compliance with the Settlement Agreement. The DOE
has agreed to provide Plaintiffs' counsel with
confidential annual reports.
C. Additional Provisions
-- The term of the Agreement is three full school
years; and
-- The DOE has agreed to provide Named Plaintiffs M.G.
and G.J. with make-up OT services for the services
each missed pursuant to a Related Service
Authorization (RSA) and $2,000 each in class
representative service awards.
After more than two years of negotiations, the Parties have reached
a proposed resolution of the issues raised in the Plaintiffs'
Complaint concerning the issuance, administration, and utilization
of RSA vouchers to provide related services to students with
Individualized Education Programs ("IEPs") in DOE schools in the
Bronx. Related services include speech therapy, occupational
therapy, physical therapy, and counseling, among other services
that many students with disabilities need to have equal access to
public education.
The Plaintiffs filed this civil rights class action lawsuit on July
27, 2017. The Complaint alleged that the DOE's administration of
RSA vouchers issued for certain students with IEPs enrolled in DOE
schools in the Bronx violates the Individuals with Disabilities
Education Act, the Americans with Disabilities Act, and the
Rehabilitation Act.
The New York City Department of Education is the department of the
government of New York City that manages the city's public school
system. The City School District of the City of New York is the
largest school system in the United States, with over 1.1 million
students taught in more than 1,800 separate schools.
A copy of the Plaintiffs' motion to certify class dated Feb. 3,
2020 is available from PacerMonitor.com at https://bit.ly/3b1pSpE
at no extra charge.[CC]
The Plaintiffs are represented by:
Rebecca C. Serbin, Esq.
DISABILITY RIGHTS ADVOCATES
655 Third Avenue, 14th Floor
New York, NY 10017
Telephone: (212) 644-8644
Facsimile: (212) 644-8636
OHIO: Labor Group Calls for End to Farm Contractor Abuses
---------------------------------------------------------
Mary Schuermann Kuhlman at citybeat.com reports that a legal
victory in North Carolina could open the door to reforms that would
protect farm workers in the Buckeye State as well.
A federal judge has given preliminary approval to the last of three
settlements in a class-action lawsuit against growers who used a
farm-labor contractor to cut labor costs - a contractor who shorted
the workers' pay.
President of the Toledo-based Farm Labor Organizing Committee
Baldemar Velasquez said many labor contractors bring migrants to
the U.S. on H-2A guest-worker visas, but aren't following federal
regulations. He said those violations will eventually fall on the
shoulders of farmers.
"They think they're distancing themselves from legal liability to
hire these independent farm-labor contractors," said Velasquez.
"But we've proven in the cases that we won in North Carolina, the
'joint employment' with at least several of the farmers. And I
think the same thing is happening in Ohio. We just have to make the
case."
The class-action lawsuit emerged after a failed attempt by FLOC
members get the three defendants to agree to back wages, improved
working conditions and collective bargaining rights.
The U.S. Department of Labor said the farm owners weren't
responsible for the subcontractor's actions. FLOC is working now to
collect money owed to the more than 200 workers.
Most farmworkers with H-2A visas are in the South, but Velasquez
explained they're tied to networks all over the country.
"We know several big ones in Ohio that were here last year," said
Velasquez. "One labor contractor had about 400 workers. Another one
had over 200. And there were smaller ones, of course."
In 2019, the Labor Department found roughly 12,000 violations under
the H2-A program, including about 5,000 workers cheated out of
their wages . Velasquez predicted the exploitation could get worse
.
"It just really underscores the fact that the Department of Labor
doesn't have the capacity to enforce the law," said Velasquez.
"That these fly-by-night labor contractors, they're hard to nail
down, hard to track down their assets as a way to leverage them, to
comply with the law."
FLOC is backing H-2A program reforms that would prevent contractors
from exploiting workers. [GN]
OLIVIAN HOSPITALITY: Faces Garcia ADA Suit Over Reservation System
------------------------------------------------------------------
ORLANDO GARCIA, individually and on behalf of all others similarly
situated, Plaintiff v. OLIVIAN HOSPITALITY, INC. and DOES 1-10,
Defendant, Case No. 21BBCV00116 (Cal. Super., Los Angeles Cty.,
February 8, 2021) is a class action against the Defendant for
violations of the Americans with Disabilities Act and the Unruh
Civil Rights Act.
The case arises from the Defendant's failure to provide information
about the accessible features in the rooms at the Portofino Inn
Burbank on its reservation Website at
https://www.portofinoburbank.com/ for people with disabilities,
including the Plaintiff. The Website reservation system lacks
sufficient information needed by disabled travelers to assess
independently whether a given hotel room would work for them. As a
result, the Plaintiff is unable to engage in an online booking of
the hotel room with any confidence or knowledge about whether the
room will actually work for him due to his disability, the suit
says.
Olivian Hospitality, Inc. is an owner and operator of the Portofino
Inn Burbank located at 924 W. Olive Ave, Burbank, California. [BN]
The Plaintiff is represented by:
Raymond Ballister Jr., Esq.
Russell Handy, Esq.
Amanda Seabock, Esq.
Zachary Best, Esq.
CENTER FOR DISABILITY ACCESS
8033 Linda Vista Road, Suite 200
San Diego, CA 92111
Telephone: (858) 375-7385
Facsimile: (888) 422-5191
E-mail: amandas@potterhandy.com
OTIS WORLDWIDE: Darnis Putative Class Suit Underway
---------------------------------------------------
Otis Worldwide Corporation said in its Form 10-K report filed with
the U.S. Securities and Exchange Commission on February 5, 2021,
for the fiscal year ended December 31, 2020, that the company
continues to defend a putative class action suit entitled, Geraud
Darnis et al. v. Raytheon Technologies Corporation et al.
On August 12, 2020, the putative class action lawsuit was filed in
the United States District Court for the District of Connecticut
against Otis, Raytheon Technologies Corporation ("RTX"), Carrier,
each of their directors, and various incentive and deferred
compensation plans.
The named plaintiffs are former employees of UTC and its current
and former subsidiaries, including Otis and Carrier.
They seek to recover monetary damages, as well as related
declaratory and equitable relief, based on claimed decreases in the
value of long-term incentive awards and deferred compensation under
nonqualified deferred compensation plans allegedly caused by the
formula used to calculate the adjustments to such awards and
deferred compensation from RTX, Carrier, and Otis following the
spin-offs of Carrier and Otis and the subsequent combination of UTC
and Raytheon Company. Otis believes that the claims against the
Company are without merit.
Otis Worldwide said, "At this time, Otis is unable to predict the
outcome, or the possible loss or range of loss, if any, which could
result from this action."
Otis Worldwide Corporation is the world's largest elevator and
escalator manufacturing, installation and service company. The
Company is organized into two segments - New Equipment and Service.
Through the company's New Equipment segment, the company design,
manufacture, sell and install a wide range of passenger and freight
elevators, as well as escalators and moving walkways for
residential and commercial buildings and infrastructure projects.
The company is based in Farmington, Connecticut.
OUTOKUMPU STAINLESS: Hornady's Bid for Equitable Tolling Denied
---------------------------------------------------------------
In the case, WILLIAM HEATH HORNADY, et al., Plaintiffs v. OUTOKUMPU
STAINLESS USA, Defendant, Civil Action No. 1:18-00317-JB-N (S.D.
Ala.), Judge Jeffrey U. Beaverstock of the U.S. District Court for
the Southern District of Alabama, Southern Division, denied the
Plaintiffs' Renewed Motion to Equitably Toll the Statute of
Limitations.
The Plaintiffs brought the collective action pursuant to Section
216(b) of the Fair Labor Standards Act ("FLSA"). In their initial
motion for equitable tolling, the Plaintiffs sought to toll the
statute of limitations for putative plaintiffs who had not yet
opted into this suit and for opt-in plaintiffs who had filed
consents to join.
By order dated May 30, 2019, the Court stayed the Plaintiff's
initial motion pending the deadline for potential plaintiffs to
opt-in. Thereafter, the Court would determine whether the merits of
equitable tolling are the same for all the Plaintiffs or depend on
their individualized issues. The parties were granted leave to
supplement their initial motion after the opt-in period ended.
On May 19, 2020, the Plaintiffs filed the Renewed Motion. They
offer no additional argument, but rather repeat their prior
position "that the applicable principles establish that the
Plaintiffs who opted in after July 30, 2018, should have their
claims equitably tolled so that the claim period begins July 30,
2015" (the date when the collective action was filed for the named
Plaintiffs).
Likewise, the Defendant submitted a two-page response, restating
their position that the Plaintiffs have failed to establish the
"extraordinary circumstances required to justify equitable tolling
in the Eleventh Circuit."
Judge Beaverstock explains that under the FLSA, an action may be
commenced within two years (or three) after the cause of action
accrued, except that a cause of action arising out of a willful
violation may be commenced within three years after the cause of
action accrued. The named Plaintiffs filed individual written
consents to be a party plaintiff on the same day the collective
action was filed. As such, the claim period applicable to the
named Plaintiffs, for purposes of determining eligible FLSA
violations, runs from July 30, 2018, through either July 30, 2015
(for non-willful violations) or 2016 (for willful violations).
A review of the record reveals a vast majority of the opt-in
Plaintiffs filed written consents to opt in throughout
July--September, 2019, or, on average a year later than the
commencement of the action by the named Plaintiffs. By filing the
motion to equitably toll the statute of limitations, the opt-in
Plaintiffs seek to reset their various dates of commencement to
July 30, 2018, to match that of the named Plaintiffs, regardless of
the date of their opt-in or whether they worked any unpaid overtime
within that time period. Judge Beaverstock holds that this would
uniformly extend each opt-in Plaintiff's claim period beyond the
applicable statute of limitations.
Next, the Plaintiffs essentially argue the opt-in procedure under
Section 216(b) is at odds with the public policy goals of the
collective action. Further, they argue the application of the
American Pipe variety of equitable tolling does not require, as
does the formal doctrine, "extraordinary circumstances" or an
analysis of whether or not a plaintiff has been pursuing her rights
diligently.
Judge Beaverstock holds that the Plaintiffs have not identified,
beyond the policy reasons, a single injustice which may be worked
to a specific opt-in Plaintiff if tolling is not granted. In order
to determine whether any injustice will occur, the issue is
whether, and to what extent, any of the opt-in Plaintiffs' claims
will be barred by the two or three-year statute of limitation tied
to their action. Put another way: are there any opt-in Plaintiffs
who will be unjustly harmed by the strict application of the FLSA
statute of limitations to their claim period? Is there an opt-in
Plaintiff who may have filed her action earlier but for some
misrepresentation on the part of the Defendant? If so, what is the
identity of such opt-in Plaintiff(s)?
Judge Beaverstock does not know the answer to these questions
because the Plaintiffs have provided no such evidence. To be
clear, the Plaintiffs have offered no evidence of any opt-in
plaintiff who is actually harmed by the failure to toll. In
essence, he says the Plaintiffs are asking the Court to toll the
statute of limitations without any evidence as to whether there are
any cases or controversies within the tolling period. Lacking any
fact pertaining to any single opt-in Plaintiff, and for all the
other reasons thus stated, Judge Beaverstock declines to apply the
doctrine of equitable tolling to this collective action in order to
alter the date of the commencement of the action for all opt-in
Plaintiffs. To do so, he states, would destroy the intent of
Section 216(b) with no knowledge of any injustice to be remedied.
Finally, the Plaintiffs argue, even under the formal doctrine of
equitable tolling and the traditional analysis of the Eleventh
Circuit, the date of commencement of the suit should be reset to
July 30, 2018, for all opt-in Plaintiffs. The Defendant replies
the facts simply do not warrant equitable tolling and the
Plaintiffs have not asserted, as the Eleventh Circuit requires,
either extraordinary circumstances or fraud has interfered with the
Plaintiffs' ability to assert their claims.
Judge Beaverstock holds that the Plaintiffs have not met their
burden. The Plaintiffs have failed to submit any facts to support
their argument for equitable tolling other than a generalized
concern that the FLSA procedural scheme may result in the loss of
claims: "Whether notice is early, late, slow, or fast, unless there
is equitable tolling, the employees Congress protects through a
collective action process lose due to circumstances beyond their
control."
While the Plaintiffs identify cases from other jurisdictions in
which tolling was granted to address delayed notice to potential
plaintiffs caused by the collective action procedure, they do not
identify any case from the Circuit. The Defendant correctly argues
the cases in the Circuit do not generally find litigation delays to
merit an "extraordinary" circumstance that could warrant
application of the doctrine of equitable tolling. The Judge
concludes that the Plaintiffs have failed to demonstrate any
extraordinary circumstances existed to prevent any Plaintiff from
pursuing the cause of action at some earlier date.
For the reasons he described, Judge Beaverstock denied the
Plaintiffs' Renewed Motion.
A full-text copy of the Court's Feb. 3, 2021 Order is available at
https://tinyurl.com/selydrqf from Leagle.com.
PAPA JOHN'S: 2nd Amended OLERS Complaint Dismissed With Prejudice
-----------------------------------------------------------------
In the case, OKLAHOMA LAW ENFORCEMENT RETIREMENT SYSTEM,
individually and on behalf of all others similarly situated,
Plaintiff v. PAPA JOHN'S INTERNATIONAL, INC., JOHN H. SCHNATTER,
and STEVE M. RITCHIE, Defendants, No. 18-CV-7927 (KMW) (S.D.N.Y.),
Judge Kimba M. Wood of the U.S. District Court for the Southern
District of New York granted the Defendants' motions to dismiss the
Plaintiff's Second Amended Complaint ("SAC").
Lead Plaintiff Oklahoma Law Enforcement Retirement System brings
the putative class action against Papa John's and two of its former
executives, Schnatter and Ritchie. The Plaintiff alleges that the
Defendants violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. Sections
78j(b), 78t(a), and the corresponding rule of the United States
Securities and Exchange Commission ("SEC"), 17 C.F.R. Section
240.10b-5.
Defendant Papa John's is a Delaware corporation with its principal
place of business in Kentucky. It operates and franchises pizza
delivery and carryout restaurants throughout the United States and
internationally. Schnatter founded Papa John's in 1984 and remains
one of Papa John's largest shareholders. From Feb. 25, 2014
through Aug. 7, 2018 ("Class Period"), he held a range of executive
positions. He was Papa John's CEO from April 3, 2009, through Dec.
31, 2017, Chairman of the Board from May 10, 2007, through July 11,
2018, and President from May 15, 2014 through July 30, 2015.
Mr. Ritchie began working for Papa John's as a customer service
representative in 1996 and steadily climbed the corporate ladder.
He became the Senior VP from May 2013 through May 1, 2014. Then,
from May 15, 2014, through Dec. 31, 2017, he was the COO. He took
over Schnatter's role as President on July 30, 2015, and
Schnatter's role as CEO on Jan. 1, 2018. He remained in those
positions through the end of the Class Period.
The Lead Plaintiff purchased Papa John's common stock during the
Class Period.
The First Amended Complaint ("FAC") alleged that the Defendants
made false and misleading statements about Papa John's culture and
failed to disclose material information about its toxic workplace
culture. The Court granted the Defendants' motions to dismiss the
FAC because the allegedly false and misleading statements upon
which the Plaintiff relied were inactionable "puffery," and because
the Plaintiff's allegations about Papa John's toxic workplace
culture were far too speculative to meet Rule 12(b)(6), Rule 9(b),
and the PSLRA's pleading standards.
The Plaintiff filed a SAC. In the SAC, the Plaintiff's allegations
continue to rely on largely the same set of allegedly material
misrepresentations and omissions in Papa John's Code, press
releases, earnings conference calls, and financial disclosures.
Likewise, the Plaintiff also continues to rely on Schnatter's NFL
comment, the July 11 Forbes article about Schnatter's use of the
"N-word," and the July 19 Forbes article about the toxic culture at
Papa John's.
The SAC emphasizes that the Defendants knew about the toxic culture
of harassment and intimidation flourishing within the
Company--because Schnatter and Ritchie were directly responsible
for cultivating it." The SAC also emphasizes that Defendants'
knowledge, "following the explosion of the #MeToo movement,"
renders their material misrepresentations and omissions
actionable.
On June 1, 2020, Papa John's and Ritchie moved to dismiss the SAC.
Separately, Schnatter moved to dismiss the SAC on the same day. On
July 15, the Plaintiff filed a separate opposition to each motion.
On September 4, Papa John's and Ritchie filed a reply, and
Schnatter filed his reply separately.
The SAC alleges the same type of securities fraud as the FAC. The
Plaintiff alleges that Schnatter, Ritchie, and other executives
sexually harassed Papa John's employees and cultivated a toxic
workplace culture. The Plaintiff claims that, with the rise of the
#MeToo movement, it was likely that their wrongdoing would come to
light and harm the Company's reputation, adversely impacting
operations and revenue. It adds that the Defendants misleadingly
touted the Company's culture and failed to divulge the danger that
business would suffer, should customers learn the truth.
Judge Wood opines that the SAC still fails plausibly to allege that
the Defendants' positive assurances about the Company's culture
exceeded the protected bounds of generic puffery. Nor has the SAC
plausibly alleged that the risk that Papa John's would face a
#MeToo reckoning was so concrete and substantial that there arose
an affirmative duty to disclose it.
As to material misrepresentations or omissions under Section 10(b)
and Rule 10b-5, JUdge Kimba observes that like the FAC, the
material misrepresentations or omissions alleged in the SAC under
Section 10(b) and Rule 10b-5 fall into three broad categories: (1)
statements contained in Papa John's Code of Ethics and Business
Conduct; (2) positive assertions made in SEC filings, press
releases, and earnings conference calls; and (3) risks disclosed in
SEC filings.
She finds that nothing in the SAC or the Plaintiff's briefs (i)
changes the Court's previous determination that the statements in
the Code are quintessential puffery, (ii) warrants changing the
Court's previous determination that the positive assertions about
the Company's culture in its SEC filings, press releases, and
earnings conference calls are inactionable as immaterial puffery,
and (iii) warrants changing the Court's previous determination that
the risk disclosures contained in Papa John's SEC Filings are not
misleading.
Turning to the omissions under Item 303 of Regulation S-K, Judge
Wood holds that nothing in the SAC or the Plaintiff's briefs
warrants changing the Court's previous determination that Papa
John's did not have an affirmative duty to disclose information
about workplace sexual misconduct. Papa John's had no affirmative
duty to disclose its allegedly toxic workplace culture or
accusations of sexual misconduct against its executives. The SAC
contains no particularized allegations to bridge this factual gap.
Drawing all reasonable inferences in the Plaintiff's favor, the
Judge is able to infer only that it is possible that the misconduct
and toxic culture could be exposed and that the exposure could have
some effect on the Company's financial condition. The SAC's
general allegations do not allow the Court to infer that the
exposure was "reasonably likely" to have a "material effect" on the
Company's financial condition. Thus, Judge Wood holds that Papa
John's did not have an affirmative duty to disclose information
about workplace sexual misconduct under Item 303.
Because she holds that the Plaintiff has not adequately pled a
material misrepresentation or omission under Section 10(b) or Rule
10b-5, Judge Wood has no occasion to address the Defendants'
alternative grounds for dismissal, based on alleged deficiencies in
the Plaintiff's pleadings as to scienter and loss causation.
Because the Plaintiff has not stated a claim for a primary
violation of the Exchange Act by any controlled person, Judge Wood
opines that the Plaintiff's claims against Schnatter and Ritchie
based on control person liability under Section 20(a) are also
incapable of surviving the Defendants' motions to dismiss.
Finally, the Plaintiff requests leave to amend the SAC should the
Court grant the Defendants' motions to dismiss. The Plaintiff has
had two opportunities to amend its complaint. There is no reason
to believe that any amendment can cure the SAC's deficiencies,
because the statements that the Plaintiff contends are actionable
were not material, or false or misleading, and the Plaintiff has
not identified any omitted information that the Defendants had an
affirmative duty to disclose, Judge Wood opines. She says
permitting Plaintiff to file a third amended complaint under these
circumstances would be futile and would needlessly burden counsel
and the Court. Thus, the Plaintiff's request to file a third
amended complaint is denied.
For the foregoing reasons, Judge Wood granted the Defendants'
motions to dismiss the SAC with prejudice. The Clerk of Court is
respectfully directed to terminate the pending motions.
A full-text copy of the Court's Feb. 3, 2021 Opinion & Order is
available at https://tinyurl.com/emwdwn0j from Leagle.com.
PASCHALL TRUCK: Extension of Rule 23 Motion Filing Deadlines Sought
-------------------------------------------------------------------
In the class action lawsuit captioned as GALE CARTER, et al., v.
PASCHALL TRUCK LINES, INC., et al., Case No. 5:18-cv-00041-BJB-LLK
(W.D. Ky.), the Plaintiffs Gale Carter and Forbes Hayes, and
Defendant Paschall Truck move per Federal Rule of Civil Procedure
6(b)(1)(A) to extend the deadlines for the Opposition and Reply
Briefs to be filed in connection with the Plaintiff's Motion for
Rule 23(b)(3) Certification as follows:
Event Current Deadline Requested Deadline
Deadline for the Feb. 12, 2021 March 5, 2021
Defendants to file
any opposition:
Deadline for the March 5, 2021 April 2, 2021
Plaintiffs to file
any reply:
Paschall Truck operates as a route carrier shipping company.
A copy of the Parties motion dated Feb. 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3rOIY9z at no extra charge.[CC]
The Plaintiff is represented by:
Joshua S. Boyette, Esq.
SWARTZ SWIDLER, LLC
1101 Kings Highway North, Suite 402
Cherry Hill, NJ 08034
Telephone: (856) 685-7420
Facsimile: (856) 685-7417
The Defendant is represented by:
Ashley E. Paynter, Esq.
SCOPELITIS, GARVIN, LIGHT
HANSON & FEARY, P.C.
10 Wester Market St. Ste 1400
Indianapolis, IN 46204
Telephone: (317) 637-1777s
PAYLOCITY HOLDING: BIPA Related Putative Class Suit Underway
------------------------------------------------------------
Paylocity Holding Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on February 5, 2021,
for the quarterly period ended December 31, 2020, that the company
is facing a potential class action suit alleging Illinois Biometric
Information Privacy Act (BIPA).
On November 16, 2020, a potential class action complaint was filed
against the Company with the Circuit Court of Cook County alleging
that the Company violated the Illinois Biometric Information
Privacy Act.
The complaint seeks statutory damages, attorney's fees and other
costs.
Paylocity said, "This claim is still in its earliest stages and the
Company is unable to estimate any reasonably possible loss, or
range of loss, with respect to this matter. The Company intends to
vigorously defend against this lawsuit."
Paylocity Holding Corporation is a provider of cloud-based payroll
and human capital management (HCM) software solutions to
medium-sized organizations. The Arlington Heights, Illinois-based
Company currently serves 6,850 clients throughout the United
States. The company is based in Schaumburg, Illinois.
PAYPAL HOLDINGS: Dismissal in TIO Operation Related Suit Affirmed
-----------------------------------------------------------------
PayPal Holdings, Inc. said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 5, 2021, for
the fiscal year ended December 31, 2020, that the U.S. Court of
Appeals for the Ninth Circuit affirmed the dismissal in the
putative class action suit related to the company's suspension of
its operation of TIO Networks.
In November 2017, the company announced that it had suspended the
operations of TIO as part of an ongoing investigation of security
vulnerabilities of the TIO platform.
On December 1, 2017, the company announced that it had identified
evidence of unauthorized access to TIO's network and the potential
compromise of personally identifiable information for approximately
1.6 million TIO customers.
The company had received a number of governmental inquiries, and
the company may be subject to additional inquiries in the future.
In addition, on December 6, 2017, a putative class action lawsuit
was filed in the U.S. District Court for the Northern District of
California against the Company, its Chief Executive Officer, its
Chief Financial Officer and Hamed Shahbazi, the former chief
executive officer of TIO alleging violations of federal securities
laws.
The plaintiffs filed their operative, second amended complaint on
July 13, 2018. The SAC names TIO Networks ULC, TIO Networks USA,
Inc., and John Kunze (at that time, the Company's Vice President,
Global Consumer Products and Xoom) as additional defendants, but no
longer names Hamed Shabazi as a defendant.
The SAC is purportedly brought on behalf of all persons other than
the defendants who acquired the Company's securities between
November 10, 2017 and December 1, 2017, and alleges that the
Company's November 2017 announcement was false and misleading
because it only disclosed security vulnerabilities on TIO's
platform, rather than an actual security breach affecting millions
of TIO users that defendants were allegedly aware of at the time of
the announcement.
Defendants filed their motion to dismiss the SAC on March 15, 2019,
and the Court granted the defendants' motion with prejudice on
September 18, 2019. Plaintiffs appealed the dismissal to the U.S.
Court of Appeals for the Ninth Circuit, and on December 17, 2020,
the Ninth Circuit issued a memorandum decision affirming the
dismissal.
PayPal said, "We may be subject to additional litigation relating
to TIO's data security platform or the suspension of TIO's
operations in the future.
PayPal Holdings, Inc. operates as a technology platform and digital
payments company that enables digital and mobile payments on behalf
of consumers and merchants worldwide. PayPal Holdings, Inc. was
founded in 1998 and is headquartered in San Jose, California.
PELOTON INTERACTIVE: Faces Loaiza ADA Suit in C.D. California
-------------------------------------------------------------
A class action lawsuit has been filed against Peloton Interactive.
The case is captioned as David Loaiza v. Peloton Interactive, Inc.
et al., Case No. 2:21-cv-00846-FMO-AGR (C.D. Cal., Jan. 29, 2021).
The suit alleges violation of the Americans With Disabilities Act
and is assigned to the Hon. Judge Fernando M. Olguin.
Peloton is an American exercise equipment and media company that
was founded in 2012 and launched with help from a Kickstarter
funding campaign in 2013.[BN]
The Plaintiff is represented by:
Jasmine Behroozan, Esq.
Thiago Merlini Coelho, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Boulevard, 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
E-mail: jasmine@wilshirelawfirm.com
thiago@wilshirelawfirm.com
PENUMBRA INC: Kessler Topaz Reminds of March 16 Deadline
--------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP reminds
Penumbra, Inc. (NYSE: PEN) ("Penumbra") investors that a securities
fraud class action lawsuit has been filed on behalf of those who
purchased or acquired Penumbra common stock between August 3, 2020
and December 15, 2020, inclusive (the "Class Period").
Deadline Reminder: Investors who purchased or acquired Penumbra
common stock during the Class Period may, no later than March 16,
2021, seek to be appointed as a lead plaintiff representative of
the class. For additional information or to learn how to
participate in this litigation please contact Kessler Topaz Meltzer
& Check, LLP: James Maro, Esq. (484) 270-1453 or Adrienne Bell,
Esq. (484) 270-1435; toll free at (844) 887-9500; via e-mail at
info@ktmc.com; or click
https://www.ktmc.com/penumbra-inc-securities-class-action?utm_source=PR&utm_medium=link&utm_campaign=penumbra
According to the complaint, Penumbra is a global healthcare company
that develops, manufactures and sells innovative medical devices
for patients suffering from stroke and other vascular and
neurovascular diseases. Until recently, one of Penumbra's flagship
products was the "Jet 7 Xtra Flex," an aspiration catheter designed
to be inserted into an affected artery, navigated to a blood clot,
and used to suck the clot out of the patient's body. The Jet 7 Xtra
Flex was introduced to the U.S. market in July 2019 and quickly
became a "growth driver" for Penumbra, a key source of new
revenues.
The complaint alleges that in mid-2020, concerns about the Jet 7
Xtra Flex's safety began to emerge. Despite the safety concerns,
the defendants repeatedly assured investors during the Class Period
that the Jet 7 Xtra Flex was "absolutely safe" and "not a product
that has any possibility of needing to be recalled," as Penumbra
was taking all necessary steps to protect patients.
The truth regarding Jet 7 Xtra Flex's safety was revealed to the
market through a series of disclosures beginning in September 2020.
Then, on December 15, 2020, after the market closed, Penumbra
issued a press release announcing that it was issuing an "urgent"
recall of the Jet 7 Xtra Flex because the catheter "may become
susceptible to distal tip damage during use" which could lead to
injury or death. Following this news, Penumbra's stock price fell
by 7%, from $188.82 per share on December 15, 2020 to $174.98 per
share on December 16, 2020, a decline of $13.84 per share.
Penumbra investors may, no later than March 16, 2021, seek to be
appointed as a lead plaintiff representative of the class through
Kessler Topaz Meltzer & Check, LLP or other counsel, or may choose
to do nothing and remain an absent class member. A lead plaintiff
is a representative party who acts on behalf of all class members
in directing the litigation. In order to be appointed as a lead
plaintiff, the Court must determine that the class member's claim
is typical of the claims of other class members, and that the class
member will adequately represent the class. Your ability to share
in any recovery is not affected by the decision of whether or not
to serve as a lead plaintiff.
Kessler Topaz Meltzer & Check, LLP, prosecutes class actions in
state and federal courts throughout the country involving
securities fraud, breaches of fiduciary duties and other violations
of state and federal law. Kessler Topaz Meltzer & Check, LLP is a
driving force behind corporate governance reform, and has recovered
billions of dollars on behalf of institutional and individual
investors from the United States and around the world. The firm
represents investors, consumers and whistleblowers (private
citizens who report fraudulent practices against the government and
share in the recovery of government dollars). The complaint in this
action was not filed by Kessler Topaz Meltzer & Check, LLP. For
more information about Kessler Topaz Meltzer & Check, LLP, please
visit www.ktmc.com.
CONTACT:
Kessler Topaz Meltzer & Check, LLP
James Maro, Jr., Esq.
Adrienne Bell, Esq.
280 King of Prussia Road
Radnor, PA 19087
(844) 887-9500 (toll free)
(610) 667-7706
info@ktmc.com [GN]
PHOENIX, AZ: Police "Challenge Coins" Depict Violence From Protest
------------------------------------------------------------------
Vaughan Jones, writing for KJZZ91.5, reports that after shooting a
protester in the groin with a pepper ball at a protest in 2017, a
team of Phoenix police officers allegedly created commemorative
coins to celebrate the incident.
The "challenge coins" clearly depict the man being shot on the
front and have the date of the protest on the back, according to an
ABC 15 report.
The text on the coins reads "Good Night, Left Nut" on one side and
"Make America Great Again, One Nut at a Time" on the other. The
first phrase has drawn comparison to the neo-Nazi slogan "Good
Night, Left Side."
The coins were allegedly kept and shared by the Tactical Response
Unit. Phoenix police denies any involvement.
The ACLU Arizona and Puente Human Rights filed a class-action suit
against the Phoenix Police Department over its response to the
protest. [GN]
PHYSICIAN COMPASSIONATE: Teblum Gets Prelim. OK of Class Settlement
-------------------------------------------------------------------
The U.S. District Court for the Middle District of Florida granted
in part the Plaintiff's Unopposed Motion for Preliminary Approval
of Class Action Settlement in the lawsuit captioned DARYL TEBLUM,
individually and on behalf of all others similarly situated,
Plaintiff v. PHYSICIAN COMPASSIONATE CARE LLC, Defendant, Case No.
2:19-cv-403-SPC-MRM (M.D. Fla.).
Before the Court is Magistrate Judge Mac R. McCoy's Report and
Recommendation. Judge McCoy recommends granting in part and denying
in part the Plaintiff's Unopposed Motion for Preliminary Approval
of Class Action Settlement.
After examining the file independently and upon considering Judge
McCoy's findings and recommendations, the Court accepts and adopts
the Report and Recommendation.
Accordingly, it is now ordered that:
1. Plaintiff's Unopposed Motion for Preliminary Approval of
Class Action Settlement is granted in part and denied in
part consistent with Judge McCoy's Report and
Recommendation;
2. the parties' settlement agreement is preliminarily
approved;
3. the parties must submit a revised short form notice that
cures the deficiency noted in Judge McCoy's Report and
Recommendation;
4. the deadlines proposed by the Plaintiff concerning notice,
opt-outs, objections, final approval, and claims are
adopted; and
5. The final approval and fairness hearing will be set
approximately 120 days after entry of the Order.
A full-text copy of the Court's Opinion and Order dated Feb. 4,
2021, is available at https://tinyurl.com/25j3z3x2 from
Leagle.com.
PINTEREST INC: Facing Putative Securities Class Suit in California
------------------------------------------------------------------
Pinterest, Inc. said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 5, 2021, for the
fiscal year ended December 31, 2020, that the company is facing a
putative securities class action suit filed in the U.S. District
Court for the Northern District of California.
On November 23, 2020, Pinterest and its CEO and Chief Financial
Officer were named as defendants in a putative securities class
action filed in the U.S. District Court for the Northern District
of California.
The lawsuit alleges claims under Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and alleges that defendants made
material false and misleading public statements about the company's
revenue and user growth in 2019.
The complaint seeks damages, litigation costs, and interest.
Pinterest said, "We continue to evaluate these claims but do not
believe this litigation will have a material impact on our
financial position or results of operations."
Pinterest, Inc. operates and maintains social networking site. The
Company provides online venue for personal photos, ideas, oddities,
decorations, places to visit, recipes, and other items. Pinterest
serves customers worldwide. The company is based in San Francisco,
California.
PLANT DELIGHTS: Blind Users Can't Access Website, Williams Alleges
------------------------------------------------------------------
MILTON WILLIAMS, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS :
SIMILARLY SITUATED v. PLANT DELIGHTS NURSERY, INCORPORATED, Case
No. 1:21-cv-00858-LJL (S.D.N.Y., Jan. 29, 2021) alleges that the
Defendant failed to design, construct, maintain, and operate its
Website to be fully and equally accessible to and independently
usable by Plaintiff and other blind or visually impaired people.
According to the complaint, the Defendant's denial of full and
equal access to its Website, https://www.plantdelights.com/, and
therefore denial of its products and services offered thereby and
in conjunction with its physical locations, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act and
California's Unruh Civil Rights Act.
Because the Defendant's Website is not fully or equally accessible
to blind and visually impaired consumers, resulting in violation of
the ADA, the Plaintiff seeks a permanent injunction to cause a
change in the Defendant's policies, practices, and procedures so
that the Defendant's Website will become and remain accessible to
blind and visually-impaired consumers.
The Plaintiff is a visually impaired and legally blind person who
requires screen-reading software to read Website content using her
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition blindness in that they have a visual
acuity with correction of less than or equal to 20 x 200. Some
blind people who meet this definition have limited vision. Others
have no vision.
The Defendant offers the commercial Website to the public. The
Website offers features which should allow all consumers to access
the goods and services offered by the Defendant and which the
Defendant ensures delivery of such goods throughout the United
States including New York State. The goods and services offered by
the Defendant include purchase plants, flowers and other products
available online for purchase, and to ascertain information
relating to pricing, shipping, ordering merchandise and return and
privacy policies.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
Jeffrey M. Gottlieb, Esq.
Dana L. Gottlieb, Esq.
GOTTLIEB & ASSOCIATES
150 East 18th Street, Suite PHR
New York, NY 10003
Telephone: (212) 228-9795
Facsimile: (212) 982-6284
E-mail: Michael@Gottlieb.legal
Jeffrey@gottlieb.legal
Dana@Gottlieb.legal
PMA INSURANCE: Amended Sims Complaint Dismissed Without Prejudice
-----------------------------------------------------------------
In the case, CATHY MONROE SIMS, Plaintiff v. PMA INSURANCE COMPANY
d/b/a/ PMA INSURANCE GROUP, PMA MANAGEMENT CORP., MANUFACTURERS
ALLIANCE INSURANCE COMPANY, and PMA COMPANIES, INC., Defendants,
Case No. 1:20-cv-249 (M.D.N.C.), Judge Thomas D. Schroeder of the
U.S. District Court for the Middle District of North Carolina
granted the Defendants' motion to dismiss pursuant to Rule 12(b)(1)
of the Federal Rules of Civil Procedure or, in the alternative,
Rule 12(b)(6).
The case is a putative class action seeking recovery for the
alleged failure of private insurers to make timely conditional
payments for Medicare services. In 2011, Sims was employed as a
certified nursing assistant by Century Care Management. On June
16, 2011, she suffered a lower back injury in the course of her
work.
On Jan. 13, 2012, the Defendants filed an N.C. Industrial
Commission Form 63 that indicated that they agreed to pay Sims's
medical expenses connected to the work-related injury without
prejudice to denying the compensability of her workers'
compensation claims. On Sept. 13, 2012, the Defendants filed an
N.C. Industrial Commission Form 60 in which they admitted Sims's
right to compensation, including medical expenses, for her
work-related injury.
On Feb. 1, 2014, Sims became eligible to receive Medicare.
On May 15, 2015, following the Defendants' failure to pay for
certain treatments relating to Sims' back injury, the Full
Commission of the North Carolina Industrial Commission issued an
opinion and award that concluded Sims was entitled to ongoing
medical care for her back injury. After evaluating the requested
care, the Full Commission ordered Defendants to authorize treatment
for Sims's back injury as recommended by her authorized treating
physician.
On Aug. 5, 2015, the Centers for Medicare and Medicaid Services
("CMS") sent the parties a Rights and Responsibilities letter that
indicated the Defendants' responsibility to reimburse Medicare for
payments made for treatment of Sims's back injury.
on Aug. 11, 2015, CMS sent the Defendants a conditional payment
letter with an enclosed list of conditional payments. The letter
stated, "Medicare has identified $4552.87 in conditional payments
that we believe are associated with your claim." The letter also
indicated that Medicare was "still investigating the case file" and
the enclosed listing of conditional payments was "not a final list
and would be updated." The letter prominently featured the
statement, "This is not a bill. Do not send payment at this time."
Although the letter asked Defendants to review the enclosed listing
of conditional payments and inform Medicare if they disagreed with
the inclusion of any claim, the letter did not indicate a timeframe
in which the Defendants were required to respond.
On Sept. 3, 2015, CMS sent the Defendants another conditional
payment letter. The letter was identical to the first, except the
conditional payment amount was revised downward to $2,397.39.
Following receipt of these letters, Sims alleges, the Defendants
neither repaid the conditional payments nor disputed any of the
claims.
On March 15, 2017, CMS sent the Defendants a third conditional
payment letter. The letter stated that Medicare "identified a
claim for which you have primary payment responsibility and
Medicare has made primary payment." The letter identified
$6,166.31 in conditional payments. As with the prior two letters,
the letter indicated that the Defendants should inform Medicare if
they believed that the enclosed listing was inaccurate, but it did
not include a date by which Defendants were required to respond.
On Feb. 8, 2018, the Defendants submitted a conditional payment
dispute to CMS challenging most of the payments included in the
March 15, 2017 letter.
On March 1, 2018, CMS sent a letter indicating that it partially
agreed with the dispute and adjusted the amount of conditional
payments identified downward to $4,779.73. CMS issued the
Defendants a fourth conditional payment letter that reflected the
adjusted amount. In all other ways, the March 1, 2018 conditional
payment letter was identical to the March 15, 2017 letter,
including indicating that the enclosed listing of conditional
payments was "not final" and instructing Defendants to inform
Medicare if they believed the listing was inaccurate.
On April 6, 2018, the Defendants submitted another conditional
payment dispute to CMS challenging the conditional payments
identified in the March 1, 2018 letter. CMS appears to have made
no response to that dispute.
On March 16, 2020, Sims filed the present lawsuit against the
Defendants for violation of the Medicare Secondary Payer Act
("MSPA"), and sought certification as a class action.
On April 15, 2020, CMS sent Defendants a fifth conditional payment
letter. The letter was identical to the third and fourth letters,
except in that the conditional payment amount increased to
$10,859.34. As with the prior letters, the letter indicated that
the enclosed listing of conditional payments was "not final" and
instructed the Defendants to inform Medicare if they believed the
listing was inaccurate.
On April 23, 2020, the Defendants submitted a conditional payment
dispute to CMS challenging the conditional payments identified in
the April 15, 2020 letter. CMS responded on May 4 with a letter to
the Defendants indicating that it agreed with the dispute and
adjusted the amount of identified conditional payments downward to
zero. CMS included with the letter a revised payment summary form
that identified the total conditional payments owed as $0.
On June 12, 2020, the Defendants filed a motion to dismiss based on
lack of subject matter jurisdiction or, in the alternative, failure
to state a claim. Sims requested and received an extension of time
to reply. On Aug. 5, 2020, without the consent of the Defendants
or leave of the court, Sims filed an amended complaint. The
amended complaint alleges the Defendants violated the MSPA and
seeks certification as a class action.
The Defendants again filed a motion to dismiss based on lack of
subject matter jurisdiction or, in the alternative, failure to
state a claim.
Before considering the merits of any claim, Judge Schroeder first
determines that the Court has subject matter jurisdiction over it.
The Defendants challenge the Court's subject matter jurisdiction on
two grounds. First, they argue that the case is not ripe for
adjudication. Second, they contend that Sims lacks standing
because she has not suffered an injury-in-fact.
Because the Defendants do not contest the veracity of the facts
underlying Sims' claim to subject matter jurisdiction but rather
argue that the facts alleged in the amended complaint are not
sufficient to establish the court's subject matter jurisdiction,
the Judge applies a standard patterned on Rule 12(b)(6) and assume
the truthfulness of the facts alleged. However, under this
standard, he need not accept the legal conclusions drawn from the
facts.
With this standard in mind, Judge Schroeder turns to the
Defendants' challenges to subject matter jurisdiction. The
Defendants contend that Sims' claim is not ripe for adjudication
because at the time the complaint was filed, they were in
discussions with CMS regarding the accuracy of the identified
conditional payments. They further contend that since that time,
CMS has found that Defendants do not currently owe any
reimbursement.
Given that the Defendants have not yet breached their duty to
reimburse CMS under the MSPA, Judge Schroeder holds taht Sims will
suffer no hardship if he does not weigh in. If and when that
occurs, Sims will be able to bring her claim. As such, Sims' claim
should be dismissed as premature.
The Defendants also challenge subject matter jurisdiction on the
basis that Sims lacks standing to bring this claim because she has
not suffered an injury-in-fact. In response, Sims contends that
she was injured when the Defendants failed to pay for her medical
care as required under law. Because injury-in-fact is a close
cousin of ripeness, and Sims' arguments in support of ripeness
overlap with those in support of an injury-in-fact, Judge Schroeder
also addresses whether Sims has sufficiently alleged an
injury-in-fact as an alternative basis for dismissal.
Judge Schroeder concludes that as Sims has failed to allege that
she has suffered an injury-in-fact, she lacks standing to pursue
her claim. Sims is correct that, at the present stage, Judge
Schroeder must accept the facts as alleged in the amended
complaint. However, Judge Schroeder need not accept the legal
conclusions drawn from those facts. He finds that Sims' contention
that the Defendants were required to reimburse Medicare, such that
their failure to do so constitutes an injury-in-fact, is a
conclusion of law that is not afforded a presumption of truth.
Without facts to indicate that the Defendants failed to reimburse
Medicare when they were required to do so, Sims has not plausibly
alleged that she has suffered an injury-in-fact under the MSPA.
Having found the Court lacks subject matter jurisdiction over Sims'
claim, Judge Schroeder need not consider the Defendants' motion to
dismiss pursuant to Rule 12(b)(6).
For the reasons he stated, Judge Schroeder granted the Defendants'
motion to dismiss. He dismissed without prejudice the amended
complaint.
A full-text copy of the Court's Feb. 3, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/1u522hq3 from
Leagle.com.
POLAND: 200 Hospitality Sector Companies to Join Class Action Suit
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THefirstNEWS reports that about 200 hospitality sector companies
plan to join a class action lawsuit against the state owing to
losses run up under lockdown restrictions.
The firms will join a suit prepared by the Polish Gastronomy
Chamber of Commerce, which will file a complaint when more
companies come forward, the Gazeta Polska Codzienne newspaper
reported on Feb. 8.
Companies taking part in the legal action want to receive damages
for the losses they have incurred. The sector's combined losses
caused by lockdown restrictions are estimated to be about PLN 1
billion (EUR 222 million) and the suit seeks to attribute the
losses to the State Treasury.
Slawomir Grzyb of the chamber of commerce's management board told
the paper that the group intends to lodge the complaint when it has
gathered between 650 and 1,000 plaintiffs, adding that the suit
would be lodged by the end of March.
The chamber said that the intention of the lawsuit is to establish
that the State Treasury is responsible for damages caused by the
alleged illegal and careless activities of public authorities under
the state of epidemiological threat. [GN]
PORSCHE CARS: Faces Bowen Suit in Northern District of Georgia
--------------------------------------------------------------
A class action lawsuit has been filed against Porsche Cars N.A.,
Inc. The case is captioned as Bowen v. Porsche Cars N.A., Inc.,
Case No. (N.D. Ga., Jan. 29, 2021).
The case alleges alleged personal property damages and is assigned
to the Hon. Judge Mark H. Cohen.
PCNA, based in Atlanta, Georgia, is the exclusive importer of
Porsche vehicles for the United States.[BN]
The Plaintiff is represented by:
David Stein, Esq.
GIBBS LAW GROUP LLP
505 14th Street, Suite 1110
Oakland, CA 94612
Telephone: (510) 350-9700
Facsimile: (510) 350-9701
E-mail: ds@classlawgroup.com
- and -
Matthew R. Wilson, Esq.
Michael Joseph Boyle , Jr., Esq.
MEYER WILSON CO., LPA
1320 Dublin Road, Suite 100
Columbus, OH 43215
Telephone: (614) 224-6000
Facsimile: (614) 224-6066
E-mail: mwilson@meyerwilson.com
mboyle@meyerwilson.com
- and -
Michael A. Caplan, Esq.
Timothy Brandon Waddell, Esq.
CAPLAN COBB LLP
75 Fourteenth Street, NE, Suite 2750
Atlanta, GA 30309
Telephone: (404) 596-5610
Facsimile: (404) 596-5604
E-mail: mcaplan@caplancobb.com
bwaddell@caplancobb.com
POST HOLDINGS: Egg Products Antitrust Class Suit vs. MFI Ongoing
----------------------------------------------------------------
Post Holdings, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that Michael Foods, Inc.
(MFI) continues to defend a class action suit by opt-out plaintiffs
related to egg products.
In late 2008 and early 2009, approximately 22 class action lawsuits
were filed in various federal courts against MFI, a wholly-owned
subsidiary of the Company, and approximately 20 other defendants
(producers of shell eggs and egg products and egg industry
organizations), alleging violations of federal and state antitrust
laws in connection with the production and sale of shell eggs and
egg products, and seeking unspecified damages. All cases were
transferred to the Eastern District of Pennsylvania for coordinated
and/or consolidated pretrial proceedings.
The cases involved three plaintiff groups: (i) a nationwide class
of direct purchasers of shell eggs; (ii) individual companies
(primarily large grocery chains and food companies that purchase
considerable quantities of eggs) that opted out of various
settlements and filed their own complaints related to their
purchases of shell eggs and egg products; and (iii) indirect
purchasers of shell eggs.
Resolution of claims: To date, MFI has resolved the following
claims, including all class claims: (i) in December 2016, MFI
settled all claims asserted against it by the direct purchaser
class for a payment of $75.0, which was approved by the district
court in December 2017; (ii) in January 2017, MFI settled all
claims asserted against it by opt-out plaintiffs related to shell
egg purchases on confidential terms; (iii) in June 2018, MFI
settled all claims asserted against it by indirect purchaser
plaintiffs on confidential terms; and (iv) between June 2019 and
September 2019, MFI individually settled on confidential terms egg
product opt-out claims asserted against it by four separate opt-out
plaintiffs. MFI has at all times denied liability in this matter,
and no settlement contains any admission of liability by MFI.
Remaining portion of the cases: MFI remains a defendant only with
respect to claims that seek damages based on purchases of egg
products by three opt-out plaintiffs. The district court had
granted summary judgment precluding any claims for egg products
purchases by such opt-out plaintiffs, but the Third Circuit Court
of Appeals reversed and remanded these claims for further pre-trial
proceedings. Defendants filed a second motion for summary judgment
seeking dismissal of the claims, which was denied in June 2019. The
remaining opt-out plaintiffs have not yet been assigned trial
dates.
Although the likelihood of a material adverse outcome in the egg
antitrust litigation has been significantly reduced as a result of
the MFI settlements described above, the remaining portion of the
cases could still result in a material adverse outcome.
Post Holdings, Inc. operates as a consumer packaged goods holding
company in the United States and internationally. It operates
through Post Consumer Brands, Weetabix, Refrigerated Food, and
Active Nutrition segments. The company was founded in 1895 and is
headquartered in St. Louis, Missouri.
PRECISION 2000: Conditional Collective Status Sought in FLSA Suit
-----------------------------------------------------------------
In the class action lawsuit captioned as JUAN SERVANDO
GARCIA-ROBELO, EDUARDO GARCIA-ZAVALA, GILBERTO GARCIA-ZAVALA, HUGO
PEREZ- ZAVALA, and SALVADOR MARTINEZ-BARRERA, individually and on
behalf of all similarly situated persons, v. PRECISION 2000, INC.,
CASA PROPERTIES, LLC, GUIOMAR OBREGON, individually, CARLOS
FRANCISCO SANCHEZ, individually, and MAURICIO LANCHEROS,
individually, Case No. 1:20-cv-02841-MLB-JKL (N.D. Ga.), the
Parties ask the Court to enter an order:
1. granting their motion for conditional collective
certification defined as:
"all current and former employees of Precision 2000 within
the three-year period before the [Notice mailing date],
who were subject to housing deductions, and/or who were
not reimbursed for inbound travel costs, or outbound
travel costs, and who elect to opt-in to this action
pursuant to 29 U.S.C. section 216(b);" and
2. granting a 90-day stay to allow them to issue the Court-
approved Notice and Reminder Notice and then to engage in
settlement negotiations regarding the Plaintiffs and all
individuals who join this action.
This is a collective action brought by the Plaintiffs Juan Servando
Garcia-Robelo, Eduardo Garcia-Zavala, Gilberto Garcia-Zavala, Hugo
Perez-Zavala, and Salvador Martinez-Barrera against the Defendants
pursuant to the Fair Labor Standard Act (FLSA).
The Plaintiffs contend that the Defendants violated the FLSA, when
they imposed mandatory housing deductions on the Plaintiffs that
resulted in compensation at subminimum rates and also when they
failed to reimburse the Plaintiffs for inbound/outbound costs
related to their employment.
Precision 2000 provides construction services. The Company offers
products and services in civil infrastructure and
transportation-related projects, including airports, military
bases, roads, pedestrian paths, crossings, intersections, and
sidewalks.
A copy of the Parties' motion to certify class dated Feb. 2, 2020
is available from PacerMonitor.com at https://bit.ly/3qdmEpo at no
extra charge.[CC]
The Plaintiffs are represented by:
Rachel Berlin Benjamin, Esq.
BUCKLEY BEAL LLP
600 Peachtree Street, NE, Ste. 3900
Atlanta, GA 30308
Telephone: (404) 781-1100
Facsimile: (404) 781-1101
E-mail: rberlin@buckleybeal.com
- and -
Benjamin Richard Botts, Esq.
Julie Pittman, Esq.
ben@cdmigrante.org
julie@cdmigrante.org
822 Guilford Ave No. 970
Baltimore, MD 21202
Telephone: (855) 234-9699
Facsimile: (443) 817-0806
Counsel for the Defendants Precision 2000, Inc., Guiomar Obregon,
Carlos Francisco Sanchez, and Mauricio Lancheros, are:
Sean Keenan, Esq.
Sunshine R. Nasworthy, Esq.
CRUSER, MITCHELL, NOVITZ, SANCHEZ,
GASTON & ZIMET, LLP
Meridian II, Suite 2000
275 Scientific Drive
Norcross, GA 30092
Telephone: (678) 684-2154
E-mail: skeenan@cmlawfirm.com
snasworthy@cmlawfirm.com
Counsel for the Defendant Casa Properties, LLC, are:
Glianny Fagundo, Esq.
Natalie Mark, Esq.
TAYLOR ENGLISH DUMA, LLP
1600 Parkwood Circle, Ste. 200
Atlanta, GA 30339
E-mail: gfagundo@taylorenglish.com
nmark@taylorenglish.com
PRIMARY COLOR: Website Not Accessible to Blind Users, Loaiza Says
-----------------------------------------------------------------
DAVID LOAIZA, individually and on behalf all others similarly
situated v. PRIMARY COLOR, INC. d/b/a ALCHEMY WORKS, a California
corporation; and DOES 1 to 10, inclusive, Case No.
2:21-cv-00874-PA-AGR (C.D. Cal., Jan. 29, 2021) alleges that the
Defendants failed to design, construct, maintain, and operate its
Website to be fully and equally accessible to and independently
usable by Plaintiff and other blind or visually impaired people.
According to the complaint, the Defendants' denial of full and
equal access to its Website, https://www.alchemyworks.us/, and
therefore denial of its products and services offered thereby and
in conjunction with its physical locations, is a violation of the
Plaintiff's rights under the Americans with Disabilities Act and
California's Unruh Civil Rights Act.
Because the Defendants' Website is not fully or equally accessible
to blind and visually impaired consumers, resulting in violation of
the ADA, the Plaintiff seeks a permanent injunction to cause a
change in the Defendant's policies, practices, and procedures so
that the Defendant's Website will become and remain accessible to
blind and visually-impaired consumers.
The Plaintiff is a visually impaired and legally blind person who
requires screen-reading software to read Website content using her
computer. The Plaintiff uses the terms "blind" or
"visually-impaired" to refer to all people with visual impairments
who meet the legal definition blindness in that they have a visual
acuity with correction of less than or equal to 20 x 200. Some
blind people who meet this definition have limited vision. Others
have no vision.
Primary Color offers the Website to the public. The Website offers
features which should allow all consumers to access the goods and
services which the Defendant offers in connection with its physical
locations. The goods and services offered by the Defendant include
jewelry such as rings, bracelets, necklaces, and earrings; clothing
10 such as shoes, slippers, dresses, sweaters, and shirts;
accessories such as hats, belts, bags, scarves, and shoulder
straps; and vintage goods such as prints, wine racks, planters,
trays, sculptures, vases, and drawings. Consumers can further
access information regarding store locations, hours of operation,
contact information, press coverage, shipping, returns,
personalized accounts, gifts, social media webpages, returns, and
about the Defendant.[BN]
The Plaintiff is represented by:
Thiago Coelho, Esq.
Jasmine Behroozan, Esq.
WILSHIRE LAW FIRM
3055 Wilshire Blvd., 12th Floor
Los Angeles, CA 90010
Telephone: (213) 381-9988
Facsimile: (213) 381-9989
E-mail: thiago@wilshirelawfirm.com
jasmine@wilshirelawfirm.com
PTC INC: 401(K) Plan Related Suit in Massachusetts Underway
-----------------------------------------------------------
PTC Inc. said in its Form 10-Q Report filed with the Securities and
Exchange Commission on February 4, 2021, for the quarterly period
ended December 31, 2020, that the company continues to defend a
putative class action suit related to its 401(k) Plan.
On September 17, 2020, three individual plaintiffs filed a putative
class action lawsuit against PTC, the Investment Committee for the
PTC Inc. 401(k) Plan, and the Board of Directors in the U.S.
District Court for the District of Massachusetts alleging claims
regarding the Plan.
Plaintiffs allege that the defendants breached their fiduciary
duties under the Employee Retirement Income Security Act of 1974
(ERISA) in the oversight of the Plan, principally by selecting and
retaining certain investment options despite their higher fees and
costs than other available investment options, causing participants
in the Plan to pay excessive recordkeeping fees and suffer lower
returns on their investments, and by failing to monitor other
fiduciaries.
The plaintiffs seek unspecified damages on behalf of a class of
Plan participants from September 17, 2014 through the date of any
judgment.
PTC has filed its response to the complaint and is defending the
case vigorously.
PTC said, "We are currently unable to reasonably estimate what
effect the ultimate outcome might have, if any, on our financial
position, results of operations or cash flows."
PTC Inc. develops and delivers software products and solutions
worldwide. It operates in two segments, Software Products and
Services. The Company was formerly known as Parametric Technology
Corporation and changed its name to PTC Inc. in January 2013. PTC
Inc. was founded in 1985 and is headquartered in Needham,
Massachusetts.
QUANTUM HEALTH: Court Certifies Utilization Review Employee Class
-----------------------------------------------------------------
In the class action lawsuit captioned as SCOTT SNIDER, on behalf of
himself and all others similarly situated, v. QUANTUM HEALTH, INC.,
Case No. 2:20-cv-02296-JLG-CMV (S.D. Ohio), the Hon. Judge James L.
Graham entered an order:
1. granting in part the plaintiff's motion as it relates to
conditional certification, and this action is
conditionally certified as an Fair Labor Standards Act
(FLSA) collective action pursuant to 29 U.S.C. section
216(b) on behalf of Named Plaintiff Scott Snider.
The Court conditionally certifies a class under the FLSA
consisting of:
"all individuals employed by Defendant in Ohio as a non-
supervisory, salaried "Utilization Review Employee" during
the past three years, who were classified as exempt from
overtime compensation;"
"Utilization Review Employees" include, without
limitation, individuals who performed utilization review
work under the following job titles: Utilization Review
Nurse, Utilization Management Nurse, Pre-Certification
Nurse, and Rapid Response Nurse, and other similar job
titles whose job duties include performing utilization
review work;
2. directing the Defendant, within 14 days of this Opinion
and Order, to produce a computer-readable data file
containing the names, job titles, dates of employment,
last known mailing addresses, last known personal email
addresses, telephone numbers, and work locations for all
collective members who fit this definition; and
3. overruling the Defendant's objections to the Plaintiff's
proposed notice and consent in part and sustains the
Defendant's objections in part and therefore denies the
Plaintiff's motion in part concerning the proposed Notice
and Consent to join forms. The parties must meet and
confer to produce a Joint Proposed Notice and Consent that
comports with the conditions outlined in this Opinion and
Order on or before February 15, 2021.
Quantum Health is an award-winning consumer healthcare navigation
company that delivers an unparalleled consumer experience based on
empathy and trust, enabling employers to achieve industry-leading
satisfaction rates and independently validated claim savings.
A copy of the Court's order dated Feb. 1, 2020 is available from
PacerMonitor.com at https://bit.ly/3p40Vis at no extra charge.[CC]
QUEEN'S TREASURE: Burbon Files ADA Suit in E.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against The Queen's
Treasurers, Inc. The case is styled as Luc Burbon and on behalf of
all persons similarly situated v. The Queen's Treasurers, Inc.,
Case No. 1:21-cv-00762 (E.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Queen's Treasures -- http://www.thequeenstreasures.com/-- is a
designer and manufacturer of premium quality 18" doll clothes, 18"
doll furniture and more.[BN]
The Plaintiff is represented by:
Bradly Gurion Marks, Esq.
THE MARKS LAW FIRM PC
175 Varick Street 3rd Floor
New York, NY 10014
Phone: (646) 770-3775
Fax: (646) 867-2639
Email: bmarkslaw@gmail.com
RIEBE'S AUTO: Faces Vega Employment Suit in California State Court
------------------------------------------------------------------
A class action lawsuit has been filed against Riebe's Auto Parts,
LLC. The case is captioned as Michael Vega vs. Riebe's Auto Parts,
LLC, a Georgia Limited Liability Company, Case No.
34-2021-00293414-CU-OE-GDS (Cal. Super., Sacramento Cty., Jan. 29,
2021).
The case arises from employment-related issues.
Riebe's Auto provides auto parts. The Company offers automobile
tires, batteries, bearings, and other accessories. Riebe's Auto
Parts operates in the State of California.[BN]
The Plaintiff is represented by:
Bevin Allen Pike, Esq.
CAPSTONE LAW APC
1875 Century Park E Ste., 1000
Los Angeles, CA 90067-2533
Telephone: (310) 712-8010
E-mail: Bevin.Pike@capstonelawyers.com
ROBERTA PLACE: Fails to Protect Residents Against COVID, Suit Says
------------------------------------------------------------------
Canadian Press reports that owners of an Ontario long-term care
home plan to defend themselves against a class-action lawsuit
alleging they failed to protect residents from a COVID-19 outbreak.
Roberta Place Retirement Lodge and Jarlette Inc. are named as
defendants in the proposed class action.
The notice of intent was served to lawyers representing residents'
families.
An unproven statement of claim filed to the Ontario Superior Court
of Justice alleges Roberta Place failed to take basic measures to
protect residents against COVID-19.
An outbreak at the Barrie, Ont., home driven by a more infectious
variant of the virus has infected nearly all residents in the home
and killed 66 since Jan. 8.
The court document alleges that the facility failed to separate
residents infected with COVID-19 from those who didn't have the
virus, among other allegations.
This report by The Canadian Press was first published Feb. 5, 2021.
[GN]
ROBERTA PLACE: To Fight Class Action Over COVID-19 Outbreak
-----------------------------------------------------------
CTV News reports that Feb. 8 marks one month since a devastating
outbreak of COVID-19 took hold at Roberta Place Long Term Care in
Barrie.
Since an outbreak was declared Jan. 8, all 129 residents of the
home have tested positive, and 69 of them have died. An infected
essential caregiver has also passed away.
On Feb. 7, the operator of Roberta Place said 105 staff members had
been sickened. Jarlette Health Services said there are no active
resident cases and 14 active staff cases.
The rapid rise in cases in the early hours of the outbreak meant
many symptomatic staff members had to stay home.
David Jarlette, President of Jarlette Health Services, has conceded
that left Roberta Place too short-handed to separate infected and
non-infected residents properly.
"The virus came into the home so quickly . . . we found ourselves
not to have the staffing resources in order to cohort in a quick
and timely fashion."
We now know the more contagious B.1.1.7 U.K. variant of COVID-19
was moving through the long-term care home.
At least one class-action lawsuit against Roberta Place's operators
has been filed, alleging gross negligence at the long-term care
home.
The claims have not been tested in court, and the operators say
they intend to defend themselves. [GN]
ROBINHOOD FINANCIAL: Faces Suit Over Improper Trading Practices
---------------------------------------------------------------
ROBEL GHEBREHIWET, individually and on behalf of all others
similarly situated, Plaintiff v. ROBINHOOD FINANCIAL LLC; ROBINHOOD
SECURITIES, LLC; and ROBINHOOD MARKETS, INC., Defendants, Case No.
3:21-cv-00214-AJB-RBB (S.D. Cal., Feb. 4, 2021) alleges violation
of the California Consumer Legal Remedies Act and the Unfair
Competition Laws.
The Plaintiff alleges in the complaint that from September 1, 2016,
through June 16, 2020, Robinhood breached its duty of best
execution and its duty of loyalty by abusing a practice in which it
negotiated and received "payments for order flow" (PFOF) at four
times the industry standard from the principal trading firms
through which it routed its customers' orders. In turn, these
trading firms would recoup their payments to Robinhood by providing
Robinhood customers, including Plaintiff and the Class, less price
improvement on their trades or no price improvement at all. In
other words, Robinhood explicitly offered to accept less price
improvement for its customers from principal trading firms, in
exchange for receiving a higher rate of payment for order flow for
itself. Thus, while Robinhood reaped huge profits from these
arraignments, Plaintiff and the Class suffered harm as they
received inferior execution prices than they otherwise would have
received, the suit says.
Allegedly, Robinhood did not disclose that it generated most of its
revenue from these PFOF transactions, and did not disclose their
negative impact on its customers' trades during this period.
Rather, Robinhood affirmatively concealed the PFOF it received and
the corresponding poor price improvement passed through to its
customers, added the suit.
Robinhood's alleged material omissions, misrepresentations, and
concealment of its PFOF arrangements and the inferior execution
prices they caused was a breach or Robinhood's fiduciary duty to
Plaintiff and the Class.
Robinhood Financial LLC operates as an institutional brokerage
company. The Company provides online and mobile application-based
discount stock brokerage solutions that allows users to invests in
publicly-traded companies and exchange-traded funds. [BN]
The Plaintiff is represented by:
Robert K. Shelquist, Esq.
Karen H. Riebel, Esq.
Rebecca A. Peterson, Esq.
Stephen M. Owen, Esq.
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: rkshelquist@locklaw.com
khriebel@locklaw.com
rapeterson@locklaw.com
smowen@locklaw.com
ROBINHOOD FINANCIAL: GameStop Frenzy May Worsen Social Inflation
----------------------------------------------------------------
Heather A. Turner, writing for NUPropertyCasualty360, reports that
recent stock market volatility caused by the frenzied trading of
GameStop, AMC Theatres and other shares could spur a wave of
shareholder ligation and worsen social inflation, according to AM
Best.
Frustrated investors have already filed class-action lawsuits
against Robinhood after it restricted trading of the stocks made
popular on the WallStreetBets Reddit forum, allegedly to help
Citadel Securities, one of the brokerage's largest investors. AM
Best expects many more lawsuits will soon follow.
"Disclosures provided by Robinhood will be under intense scrutiny
by lawyers, and although it may be a while before the courts
decide, insurers providing coverage for Robinhood could still face
steep defense and containment costs (DCC)," the credit rating
agency said in its latest Best's Commentary.
Some D&O policies may cover expenses related to government
investigations if company directors are the center of probes, said
AM Best.
This is not the first time Robinhood has been on the government's
radar. In December 2020, the company agreed to pay $65 million to
settle claims that it was selling transaction data without
disclosing the practice to customers following a Securities and
Exchange Commission (SEC) review.
As the current Robinhood lawsuits move through the courts, rising
DDC costs and juries' increasing propensity to deliver large awards
will add to the mounting pressures facing D&O and professional
liability insurers.
"Headline news such as Robinhood and the involvement of hedge
funds, along with the accelerated pace of communication and
engagement in social media, will likely worsen social inflation
significantly -- something insurers will have to monitor closely
over the medium term," AM Best noted. [GN]
ROBINHOOD FINANCIAL: Manipulates Stock Market, Petrosyan Suit Says
------------------------------------------------------------------
EMIL PETROSYAN, individually and on behalf of all others similarly
situated, Plaintiff v. ROBINHOOD FINANCIAL LLC, ROBINHOOD
SECURITIES, LLC, and ROBINHOOD MARKETS, INC., Defendants, Case No.
3:21-cv-00238-JLS-DEB (S.D. Cal., February 9, 2021) is a class
action against the Defendants for breach of contract, breach of the
implied covenant of good faith and fair dealing, negligence, breach
of fiduciary duty, and violations of the California's Consumer
Legal Remedies Act and the California's Unfair Competition Law.
The case arises from the Defendants' alleged manipulation of the
stock market for Nokia Oyj (NOK), AMC Entertainment Holdings, Inc.
(AMC), and other securities by prohibiting retail investors from
purchasing shares of the manipulated stocks and restricting their
ability to make transactions. As a result of the Defendants'
alleged wrongful conduct, the Plaintiff and Class members suffered
loss of money and/or property.
Robinhood Markets, Inc. is an online brokerage firm, with its
principal place of business at 85 Willow Road, Menlo Park,
California.
Robinhood Financial LLC is a wholly-owned subsidiary of Robinhood
Markets, Inc., with its principal place of business at 85 Willow
Road, Menlo Park, California.
Robinhood Securities, LLC is a wholly-owned subsidiary of Robinhood
Markets, Inc., with its principal place of business at 500 Colonial
Center Parkway, Suite 100, Lake Mary, Florida. [BN]
The Plaintiff is represented by:
Robert K. Shelquist, Esq.
Karen H. Riebel, Esq.
Rebecca A. Peterson, Esq.
Stephen M. Owen, Esq.
LOCKRIDGE GRINDAL NAUEN PLLP
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
ROBINHOOD FINANCIAL: Manipulates Trading Platform, Muncy Suit Says
------------------------------------------------------------------
DAMON MUNCY, Individually and on behalf of all others similarly
situated v. ROBINHOOD FINANCIAL, LLC, ROBINHOOD SECURITIES, LLC,
ROBINHOOD MARKETS, INC., and DOES 1-100, Case No. 2:21-cv-01729
(D.N.J., Feb. 2, 2021) is a class action on behalf of persons or
entities who sold any of the Affected Securities via the Robinhood
trading platform on or after January 28, 2021 as a result of
Robinhood's restrictions, seeking to recover compensable damages
caused by the Defendants' violations of the federal securities laws
under the Securities Exchange Act of 1934.
The Affected Securities include American Airlines Group Inc.
(traded on NASDAQ under ticker "AAL"), AMC Entertainment Holdings
Inc. (NYSE: "AMC"), BlackBerry Limited (NYSE: "BB"), Bed Bath &
Beyond Inc. (NASDAQ: "BBBY"), and GameStop Corp. (NYSE: "GME").
On January 28, 2021, Robinhood, and other brokers, restricted
trading on the Affected Securities to closing securities only. As a
result of this injection of fear into the market and artificial
restriction of demand, the price of the Affected Securities dropped
precipitously, causing significant damages to retail investors, the
suit says.
According to the complaint, each of the Affected Securities had
become popular amongst retail investors, and had recently
experienced high trade volume. This increased interest caused
increased volatility and large losses to those institutions that
shorted the Affected Securities, losing more than $5 billion
dollars in the days leading up to January 28, 2021. Most notably,
GME shares experienced a meteoric rise in January 2021, rising from
a close of $18.84 per share on December 31, 2020, to $347.51 on
January 27, 2021.
The series of events that led to Robinhood's manipulation begins
with Gamestop, which is traded on the NYSE under the ticker "GME."
For years, GME had an absurdly high short percentage of float, over
200%. That means that for every share in the market, two were being
shorted. Those who shorted GME hoped that the price of Gamestop
securities would decline significantly or that Gamestop would
become bankrupt, leaving the shorted shares worthless. Retail
investors, believing that the stock was undervalued, began
purchasing the stock at a high volume, the suit added.
The Plaintiff sold AAL, AMC, BB, BBBY, or GME securities on
Robinhood's trading platform on or after January 28, 2021 and was
economically damaged thereby.
Robinhood Financial purports to operate as an institutional
brokerage company. The Company purports to provide online and
mobile application-based discount stock brokerage solutions that
allows users to invest in publicly-traded companies and
exchange-traded funds. Robinhood Securities is registered as a
broker-dealer with the Securities and Exchange Commission (SEC).
Robinhood Securities acts as a clearing broker and clears trades
introduced by its affiliate the Defendant Robinhood Financial.
Robinhood Markets is the corporate parent of Defendants Robinhood
Financial LLC and Robinhood Securities, LLC.[BN]
The Plaintiff is represented by:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
One Gateway Center, Suite 2600
Newark, NJ 07102
Telephone: (973) 313-1887
Facsimile: (973) 833-0399
E-mail: lrosen@rosenlegal.com
ROBINHOOD FINANCIAL: Mehta Consumer Suit Goes to N.D. California
----------------------------------------------------------------
The case styled SIDDHARTH MEHTA, individually and on behalf of all
others similarly situated v. ROBINHOOD FINANCIAL LLC; ROBINHOOD
SECURITIES, LLC; and DOES 1 to 10, Case No. 21CV375167, was removed
from the Superior Court of California for the County of Santa Clara
to the U.S. District Court for the Northern District of California
on February 9, 2021.
The Clerk of Court for the Northern District of California assigned
Case No. 3:21-cv-01013 to the proceeding.
The case arises from the Defendants' alleged negligence, breach of
contract, and violations of the California Consumer Privacy Act,
the Customer Records Act, the California's Consumer Legal Remedies
Act, the California Constitution's Right to Privacy, the Unfair
Competition Law, and the False Advertising Law.
Robinhood Financial LLC is a wholly-owned subsidiary of Robinhood
Markets, Inc., with its principal place of business at 85 Willow
Road, Menlo Park, California.
Robinhood Securities, LLC is a wholly-owned subsidiary of Robinhood
Markets, Inc., with its principal place of business at 500 Colonial
Center Parkway, Suite 100, Lake Mary, Florida. [BN]
The Defendants are represented by:
Tiffany Cheung, Esq.
Mark David McPherson, Esq.
Michael Burshteyn, Esq.
Thomas B. Davidson, Esq.
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
E-mail: TCheung@mofo.com
MMcPherson@mofo.com
MBurshteyn@mofo.com
TDavidson@mofo.com
ROBINHOOD FINANCIAL: Senate to Hold Hearing Amid Gamestop Lawsuit
-----------------------------------------------------------------
K. Bell, writing for Engadget, reports that the Senate Committee on
Banking will hold a hearing "on the current state of the stock
market," after Reddit's GameStop squeeze ignited a fiery debate
that pitted retail investors against hedge funds.
"American workers have known for years the Wall Street system is
broken -- they've been paying the price," Sen. Sherrod Brown, the
incoming committee chairman wrote in a statement. "It's time for
the SEC and Congress to make the economy work for everyone not just
Wall Street." It's not clear when the hearing may take place, or
exactly what will be covered. But so far multiple members of
Congress have weighed in on the Reddit-fueled GameStop squeeze that
resulted in trading restrictions from major brokerage firms.
In the House, Rep. Maxine Waters, who chairs the House Financial
Services Committee, said she also intended to hold a hearing. "As a
first step in reining in these abusive practices, I will convene a
hearing to examine the recent activity around GameStop (GME) stock
and other impacted stocks with a focus on short selling, online
trading platforms, gamification and their systemic impact on our
capital markets and retail investors," she said in a statement.
News of the hearings comes after Robinhood was hit with a class
action lawsuit after it restricted users from trading on Jan. 28.
The company said in an update it would resume "limited buys of
these securities" beginning on Jan. 29.
Separately, Fox Business reported that Robinhood was anticipating
an SEC investigation that "involves market manipulation." "The SEC
somehow goes and looks at the Reddit boards and tries to figure out
who's hyping what, who's touting what, and maybe sort of link it
with trades," Fox Business' Charlie Gasparino said, citing
"regulatory sources." He added that such an investigation is likely
an "impossible" task since most Reddit users are anonymous.
A Robinhood spokesperson didn't immediately respond to a request
for comment on potential investigations. And while the SEC hasn't
officially weighed in on Robinhood, Reddit, or GameStop, it issued
a statement earlier saying it was "actively monitoring the on-going
market volatility in the options and equities markets." [GN]
ROBINHOOD FINANCIAL: Six Hedge Funds Included in Class Action Suit
------------------------------------------------------------------
Hedgeweek reports that a class action lawsuit filed in California
Southern District Court on 28 January, 2021 has been amended to
include six hedge fund companies worth billions of dollars, a total
of ten online brokers who manipulated the stock market, and the
thirteen stocks involved.
The various brokers and hedge funds allegedly conspired together to
knowingly deprive retail investors of the ability to invest in the
open market during an unprecedented stock rise, in order to benefit
the hedge fund companies, such as Citadel, Melvin Capital, and
Maple Lane Capital. The lawsuit alleges that the online brokers
involved froze the everyday investors out to enable the hedge funds
to stop losing money when the stocks rose in value.
The lawsuit continues to allege that Robinhood and nine other
online brokers failed to provide duty of care to their customers
and that they purposefully harmed their customers positions in
GameStop Corp (NYSE: GME) and twelve other stocks, such as
Blackberry, LTD (NYSE: BB), AMC Entertainment Holdings Inc. (NYSE:
AMC), Nokia Oyj (NYSE: NOK), Koss Corporation (NYSE: KOSS), and
Naked Brand Group Ltd (NYSE: NAKD). The lawsuit is also alleging
that Robinhood was recently fined USD1.5 million by the SEC, and a
monitor has been assigned to watch their activities closely.
This class action is the first and only one to include all six
hedge funds, all ten brokers, and all thirteen stocks.
The case is 3:21-cv-00167, Nordeen et al v Robinhood Financial LLC
et al.
The plaintiffs are represented by the Law Offices of Gary R Carlin
APC, a Long Beach based law firm. [GN]
RUSTIC DIME: Ruiz Sues Over Unpaid Wages, Retaliation & Harassment
------------------------------------------------------------------
OSBALDO RUIZ, individually and on behalf of all others similarly
situated, Plaintiff v. RUSTIC DIME, INC., GJENMI JEWELRY, and DOES
1 through 10, inclusive, Defendants, Case No. 21STCV05437 (Cal.
Super., Los Angeles Cty., February 10, 2021) is a class action
against the Defendants for violations of the California Labor Code
and the California Business & Professions Code including disability
discrimination, retaliation, hostile work environment and
harassment, failure to prevent discrimination and harassment,
constructive discharge, unpaid overtime, unpaid meal period
premiums, unpaid rest period premiums, failure to pay minimum wage,
wages not timely paid upon termination, non-compliant wage
statements, failure to accommodate, and failure to engage in the
interactive process.
The Plaintiff was hired by the Defendants in or around October
2018.
Rustic Dime, Inc. is an online men's clothing retailer
headquartered in Los Angeles, California.
Gjenmi Jewelry is a jewelry retailer based in California. [BN]
The Plaintiff is represented by:
Abraham Mathew, Esq.
Jacob George, Esq.
MATHEW & GEORGE
500 S. Grand Ave, Suite 2050
Los Angeles, CA 90071
Telephone: (310) 478-4349
Facsimile: (310) 478-9580
E-mail: abraham@mathewandgeorge.com
jacob@mathewandgeorge.com
SAG-AFTRA: Suspends Annual Dues Hike Amid Health Plan Class Action
------------------------------------------------------------------
David Robb, writing for Deadline, reports that SAG-AFTRA's national
board has suspended this year's automatic annual 2% dues increase
and will hold initiation fees at their current levels. The move,
which had been recommended by the union's Finance Committee, comes
in recognition of the impact that the Covid-19 pandemic has had on
many members' earnings.
In other actions, the board, meeting on Feb. 6, approved a
recommendation to extend the lease on the union's headquarters in
Los Angeles to the year 2032, and approved a new agreement covering
content created by so-called "influencers" when they are paid to
advertise products or services. The union said that the new
"influencers" agreement will allow it to "increase its coverage
over this form of advertising, and increase opportunities for
members to earn union income and qualify for health and pension
benefits."
"Making it easier to cover this type of work has been a top
priority for our organization," said SAG-AFTRA president Gabrielle
Carteris. "I want to commend the efforts of our staff in creating
an agreement that will benefit SAG-AFTRA's current members as well
as allowing all creators an opportunity to join the union. As new
ways of storytelling emerge, it's imperative that we embrace and
lift up these artists."
Despite the pandemic, secretary-treasurer Camryn Manheim and chief
financial officer Arianna Ozzanto presented reports to the board
showing that the fiscal year 2021 actuals "have performed better
than planned."
In her President's Report, Carteris opened with a remembrance of
members who died since the last national board meeting and led the
board in a moment of silence. She also reported on the industry's
Return to Work Agreement and applauded members across the country
who are encouraging adherence to safety protocols that protect
members and ensure a safer return to work. She also saluted
SAG-AFTRA broadcast members "for their fortitude and coverage over
the past year, many while being maligned and facing violence when
covering the news."
As reported here earlier, the board permanently banned former
President Donald Trump from ever rejoining the union. Trump, who
had been a member of the union for more than 30 years, resigned
from SAG-AFTRA while facing almost certain expulsion.
The board found that his constant attacks on the press -- which
includes many of the union's broadcast members -- "is anathema to
the values embodied by SAG-AFTRA and to the members of SAG-AFTRA,"
and undermined "the delivery of truthful information to the
public." The board also found that his actions leading up to the
failed insurrection at the U.S. Capitol on Jan. 6 undermined "the
peaceful transition of power in the United States." The U.S. Senate
will put Trump on trial, following his second impeachment in the
House of Representatives, for inciting the riot, and if convicted
-- which is unlikely -- he'll be banned from ever holding public
office again.
In his letter of resignation, Trump wrote: "Who cares! I no longer
wish to be associated with your union. As such, this letter is to
inform you of my immediate resignation from SAG-AFTRA. You have
done nothing for me." That claim, however, is belied by the fact
that he receives nearly $100,000 a year in SAG-AFTRA pensions.
According to a financial disclosure report he filed in August, he
receives a $90,776 pension for the acting work he performed on
SAG-covered shows and an $8,724 pension for his AFTRA-covered
work.
In other board business, David White, SAG-AFTRA's national
executive director, gave an update of the union's operations,
including gains in member services, enforcement, organizing, and
member education and engagement. White also reported on the union's
technology and innovation enhancements, including the union's new
online enrollment tool, digital claims tracker, development of the
online producer's portal, and the results of the sexual harassment
reporting app beta test.
"SAG-AFTRA continues to tap the power of innovation to serve
members more efficiently," White said. "The goal of our technology
enhancements is to make the member experience faster, more
efficient and more empowering. The pandemic has only motivated our
team to redouble our efforts, and our work is paying big dividends
for our members."
SAG-AFTRA and the AFL-CIO will co-host the 3rd Annual Labor
Innovation and Technology Summit Feb. 19. "This is an invaluable
opportunity to bring workers from across labor to the table for
crucial discussions about workforce transformation," Carteris
said.
In other business, the board rejected a changed proposed by the
union's minority party that would have brought the L.A. Local's
constitution in line with how ever other Locals handle board
vacancies and replacements. Proponents of the change argued that
this would have "fixed the issue where political parties in L.A.
run high-profile members who have no intent of serving just to win
seats that they then immediately resign from and appoint their
party members who were not elected." The union's ruling Unite for
Strength party, which opposed the change, makes up a majority of
the national board, while the Membership First opposition party,
which sought the change, makes up a majority of the L.A. Local's
board, which represents nearly half of all the union's 160,000
members.
The two factions have also been at loggerheads over changes that
were recently implemented by the SAG-AFTRA Health Plan, which,
facing staggering deficits, raised premiums and earnings thresholds
for coverage, effective on Jan. 1, in order to stay afloat.
In December, a group of SAG-AFTRA dissidents led by former SAG
president Ed Asner, filed a class action lawsuit against the Plan
and its trustees, saying that the changes "illegally discriminate
based on age and violate the Age Discrimination and Employment Act
of 1967" -- a charge the trustees have flatly denied.
In a statement, the union said last night that the board rejected a
demand "that it immediately commence litigation against certain
member volunteers, elected leaders, staff members and Plan trustees
with regard to the SAG-AFTRA Health Plan's 2021 benefits changes."
[GN]
SAINT LUKE'S HEALTH: March 11 Response to Class Cert. Bid Sought
----------------------------------------------------------------
In the class action lawsuit captioned as MAGGIE ROHAN v. SAINT
LUKE'S HEALTH SYSTEM, INC., THE SAINT LUKE'S HEALTH SYSTEM
RETIREMENT COMMITTEE, and JOHN and JANE DOES 1-25, Case No.
4:20-cv-00179-SRB (W.D. Mo.), the Plaintiff Maggie Rohan and
Defendants Saint Luke's Health System and the Saint Luke's Health
System Retirement Committee jointly ask the Court for a 30-day
extension of time for the Defendants' response to the Plaintiff's
motion for class certification and a 30-day extension of time for
the Plaintiff's reply brief.
The parties request that the Court enter an order that the
Defendants' deadline to respond to Plaintiff's Motion for Class
Certification be extended to March 11, 2021, and that Plaintiff's
deadline to submit a reply brief is extended to April 12, 2021.
Under the Court's Scheduling and Trial Order, the Defendants'
response to the Plaintiff's Motion for Class Certification is due
on February 9, 2021, and Plaintiff's reply brief is due on March
11, 2021.
The parties currently are engaged in discussions to potentially
reach a cooperative resolution of the issues raised by the
Plaintiff's motion for class certification. The parties also are
engaged in parallel discussions to potentially settle this case.
The requested extension will allow the parties to focus on these
negotiations and conserve judicial and party resources by avoiding
potentially unnecessary time and expense associated with class
certification briefing.
Saint Luke's Health System is a non-profit hospital network in the
bi-state Kansas City metro area, located in northeast Kansas and
northwest Missouri. It traces its history to its flagship hospital,
Saint Luke's Hospital of Kansas City, which was established in
1882.
A copy of the the Parties' motion dated Feb. 2, 2020 is available
from PacerMonitor.com at http://bit.ly/3d0FigFat no extra
charge.[CC]
The Plaintiff is represented by:
Mark G. Boyko, Esq.
BAILEY & GLASSER LLP
8012 Bonhomme Avenue, Suite 300
Clayton, MO 63105
Telephone: (314) 863-5446
Facsimile: (314)-863-5483
E-mail: mboyko@baileyglasser.com
- and -
Gregory Y. Porter, Esq.
Alexandra L. Serber, Esq.
BAILEY & GLASSER LLP
1054 31st Street, NW, Suite 230
Washington, DC 20007
Telephone: (202) 463-2101
E-mail: gporter@baileyglasser.com
aserber@baileyglasser.com
- and -
Douglas P. Needham, Esq.
Robert A. Izard, Esq.
Mark P. Kindall, Esq.
Oren Faircloth, Esq.
IZARD, KINDALL & RAABE, LLP
29 South Main St., Suite 305
West Hartford, CT 06107
Telephone: (860) 493-6292
E-mail: dneedham@ikrlaw.com
rizard@ikrlaw.com
mkindall@ikrlaw.com
ofaircloth@ikrlaw.com
- and -
Kristie Blunt-Welder, Esq.
WELDER BLUNT WELDER & ASSOCIATES, LLC
4741 Central St., Suite 514
Kansas City, Mo 64112
Telephone: (844) 935-3373
E-mail: kwelder@welderfirm.com
The Defendants are represented by:
Phillip G. Greenfield, Esq.
GM LAW PC
1201 Walnut, 20th Floor
Kansas City, MO 64106
Telephone: (816) 471-7700
E-mail: philg@gmlawpc.com
- and -
Lars C. Golumbic, Esq.
Sean C. Abouchedid, Esq.
Samuel I. Levin, Esq.
Nate W. Ingraham, Esq.
GROOM LAW GROUP, CHARTERED
1701 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone: (202) 857-0620
E-mail: lgolumbic@groom.com
sabouchedid@groom.com
slevin@groom.com
ningraham@groom.com
SANTA MONICA: Alequin Files Suit in Illinois Over BIPA Violations
-----------------------------------------------------------------
RAFAEL ALEQUIN, individually and on behalf of all others similarly
situated, Plaintiff v. SANTA MONICA SEAFOOD COMPANY; and ETHOS
SEAFOOD GROUP, LLC, Defendants, Case No. 1:21-cv-00686 (N.D. Ill.,
Feb. 5, 2021) alleges violations of the Illinois Biometric
Information Privacy Act.
The Plaintiff alleges in the complaint that the Defendants
collected, stored and used—without first providing notice,
obtaining informed written consent or publishing data retention
policies, the fingerprints and associated personally identifying
information of hundreds of its employees, and former employees, who
are being required to "clock in" with their fingerprints.
The Defendants never adequately informed the Plaintiff or the Class
of their biometrics collection practices, never obtained the
requisite written consent from the Plaintiff or the Class regarding
their biometric practices, and never provided any data retention or
destruction policies to the Plaintiff or the Class, the suit says.
Santa Monica Seafood Company wholesales and retails seafood. The
Company offers fresh seafood to restaurants and retail customers.
[BN]
The Plaintiff is represented by:
Gary M. Klinger, Esq.
MASON LIETZ & KLINGER LLP
227 W. Monroe Street, Suite 2100
Chicago, IL 60606
Telephone: (202) 429-2290
Facsimile: (202) 429-2294
E-mail: gklinger@masonllp.com
SELIGMAN WESTERN: Lowry Seeks to Recover Managers' Unpaid Wages
---------------------------------------------------------------
MELANIE LOWRY, an individual v. SELIGMAN WESTERN ENTERPRISES LTD.,
a corporation; SWEL GROUP, a business organization form unknown;
MICHAEL SAREBANHA, an individual; Does 1 through 50 Inclusive, Case
No. 21STCV04086 (Cal. Super., Los Angeles Cty., Feb. 2, 2021) is
brought on behalf of the Plaintiff, on behalf of those similarly
situated, and on behalf of the general public, seeking full
restitution and disgorgement of all employment compensation
wrongfully withheld, and to restore any and all monies withheld by
the Defendants, pursuant to the California Labor Code.
The Plaintiff contends that whenever she attempted to submit the
actual number of hours worked in a particular pay period, Christina
Anderson, the owner’s assistant unilaterally changed her time
records by improperly and fraudulently reducing the number of hours
that she worked and to falsely reflect as having only worked a
regular 40 hour workweek.
The Plaintiff was employed by the Defendant from March 15 17, 2020
through July 1, 2020, as operational manager, responsible for
managing 11 of Defendant Employer's apartment buildings in the
greater Los Angeles area. Although she was scheduled to work five
days per week from 8 a.m. to 5 p.m. with a one hour lunch break,
the demands of the job, frequently forced her to work through lunch
and continue to work late, often until 6:30 p.m., the Plaintiff
claims. She received $25 per hour, together with free rent for a
studio apartment at the Francis Drake Villa (FDV) apartment
building, located in the Mid-Wilshire section of Los Angeles, one
of the 11 properties she managed.[BN]
The Plaintiff is represented by:
Stephen F. Danz, Esq.
STEPHEN DANZ & ASSOCIATES, P.C.
11620 Wilshire Blvd., Suite 900
Los Angeles, CA 90025
Telephone: (310) 207-4568
- and -
Brian I. Vogel, Esq.
LAW OFFICES OF BRIAN I. VOGEL
572 E. Green Street, Suite 305
Pasadena, CA 91101
Telephone: (626) 796-7470
SETTON PISTACHIO: Magistrate Endorses Denial of Ali's Remand Bid
----------------------------------------------------------------
In the lawsuit titled LILIA ALI, on behalf of herself and all
others similarly situated, Plaintiffs v. SETTON PISTACHIO OF TERRA
BELLA INC., a California corporation; and DOES 1 through 100,
inclusive, Defendants, Case No. 1:19-cv-00959-NONE-BAM (E.D. Cal.),
Magistrate Judge Barbara A. McAuliffe of the U.S. District Court
for the Eastern District of California recommends that the
Plaintiff's Motion to Remand be denied.
The Court deemed the matter suitable for resolution without oral
argument and vacated the hearing set for March 2, 2020. Thereafter,
the Motion was referred to the Magistrate Judge for issuance of
findings and recommendations pursuant to 28 U.S.C. Section
636(b)(1)(B) and Local Rule 302(a).
The Plaintiff originally filed the action in the Superior Court of
California for the County of Tulare on April 27, 2016, naming
Setton Pistachio of Terra Bella, Inc. as Defendant. On September 2,
2016, the Plaintiff filed a First Amended Complaint asserting
claims for: (1) Failure to pay overtime wages; (2) Failure to pay
minimum wages; (3) Failure to pay all wages upon termination; (4)
Failure to provide accurate wage statements; and (5) Unfair
competition.
The Defendant removed the matter to this Court on July 12, 2019.
Its notice of removal states that the matter was removed based on
28 U.S.C. Section 1332(d) (the Class Action Fairness Act, or
"CAFA"). It also states that the Court has original jurisdiction
over the matter pursuant to CAFA as (1) any member of the putative
class is a citizen of a state different from the Defendant, (2) the
aggregate number of putative class members is 100 or greater, and
(3) the aggregate amount in controversy exceeds the $5,000,000
minimum.
On August 8, 2019, the Plaintiff filed a Motion for Remand. The
sole issue raised by the Plaintiff was the timeliness of the
Defendant's removal. On December 18, 2019, the Court issued an
Order Denying Plaintiff's Motion for Remand finding that the
Defendant's removal was timely. On February 3, 2020, the Plaintiff
filed a second Motion for Remand, this time raising exceptions to
CAFA. The Defendant filed an opposition on February 14, 2020, and
the Plaintiff replied on February 24, 2020.
On May 14, 2020, the Plaintiff filed a Notice of Supplemental
Authority in Support of her Motion to Remand Action to State Court,
and the Defendant responded on May 21, 2020. On February 25, 2020,
the Court took the matter under submission. On December 11, 2020,
the matter was referred to Magistrate Judge Barbara A. McAuliffe
for the issuance of findings and recommendations.
The Plaintiff argues that the mandatory home state exception is
applicable to this case, and the case should be remanded to state
court. There is no debate that the Defendant is domiciled in
California. The Court's order denying the Plaintiffs' first motion
to remand found that the Defendant is a resident of California.
Therefore, the Defendant is domiciled in the state in which the
action was filed. The only issue in this motion is whether
two-thirds of the putative class members are citizens of
California.
The Plaintiff asserts that the citizenship requirement is met based
on (1) the number of putative class members with California
addresses as of July 15, 2019, and (2) that the proposed class
definitions would further limit the class to persons domiciled in
California. The Defendants argue that the Plaintiff's evidence is
insufficient to show that at least two-thirds of the putative class
is domiciled in California.
Judge McAuliffe holds that the Plaintiff's arguments fail to rise
above the level of mere guesswork, and the evidence does not
establish that two-thirds of putative class members are citizens of
California.
The Plaintiff asks the Court to rely on Adams v. West Marine
Prods., 958 F.3d 1216, 1220 (9th Cir. 2020) to grant the motion. In
Adams, the plaintiff not only established that ninety percent of
the class members' last known addresses were in California but
provided a sworn statement from the named plaintiff, attesting that
only citizens of California were hired and no foreign nationals
were ever hired by the defendant.
Judge McAuliffe opines that the Plaintiff cannot establish
citizenship (domicile) of the putative class members based on their
residence. First, the Plaintiff has provided evidence that in July
2019, nearly 2,119, or 98.42% of the putative class had California
addresses based on the National Change of Address system. At that
time, the claims administrator updated the mailing list and "found
2119 addresses in the state of California." However, the Plaintiff
has not established that those addresses are correct. Identifying
these addresses based on the National Change of Address system does
not mean that there has been confirmation that the addresses belong
to the class member.
Second, even if the Plaintiff had demonstrated and confirmed that
98.42% of the putative class members had valid California addresses
at the time of removal, she has not demonstrated that those class
members are domiciled in California, Judge McAuliffe holds. In the
case, there is no evidentiary support that the class members with
California addresses are domiciled there, when many of them are
seasonal workers, employed with the Defendant for a few months a
year, Judge McAuliffe opines.
The Plaintiff also argues that citizenship can be determined by the
combination of residence and location of employment. The Plaintiff
claims that not only does the addresses of 98.42% of the class lead
to the presumption that those 2,119 putative class members are
domiciled in California, but also that their place of employment
supports that argument.
Judge McAuliffe finds that the Plaintiff is unable to establish
that residence and place of employment together demonstrate
domicile in this case. First, the class is not limited to current
employees of Defendant. Former employees are included in the
proposed class. The Plaintiff alleges three different classes each
of which include "all former employees of defendants." Second,
place of employment is only one factor that may be considered in
determining a person's domicile. Here, the entire record does not
support the Plaintiff's premise.
While the Court is entitled to make reasonable inferences about the
domicile of putative class members, these facts are not enough to
allow the Court to make the inference that the Plaintiff is
requesting, Judge McAuliffe says.
The Plaintiff also argues that the proposed class definition limits
the class to only California domiciled class members. The
Plaintiff's proposed class definition defines the class as "current
and former employees of Defendant within the State of California."
Judge McAuliffe notes that the Plaintiff has failed to establish by
a preponderance of the evidence that more than two-thirds of the
putative class are domiciled in California.
The Court will, therefore, recommend that the Plaintiff's Motion
for Remand be denied.
In conjunction with the motion to remand, the Plaintiff moves for
recovery of the costs and attorneys' fees incurred in seeking
remand. Because the Court will recommend that the motion to remand
be denied, it will likewise recommend that the Plaintiff's request
for attorneys' fees be denied.
The Defendant requests that sanctions be imposed against the
Plaintiff for bringing their second motion for remand. The
Defendant provides no legal authority for imposing sanctions. The
Defendant argues that the Plaintiff violated a court order. In
denying the prior motion to remand, the Court cautioned both
parties that "that successive motions on similar issues that were
or could have been previously raised are strongly discouraged and
will be looked upon with disfavor." The Plaintiff subsequently
filed the motion to remand. the Defendant argues that it is a
violation of a court order.
The Plaintiff had the information in her possession prior to filing
the first motion to remand. But, there is no additional showing of
recklessness, frivolousness, harassment, or any other improper
purpose. Judge McAuliffe notes that the Plaintiff should have been
thorough in the first motion to remand and included all arguments,
however, the Court will not recommend a finding of bad faith in
this case.
In conjunction with the motion to remand, the Plaintiff moves for a
continuance and leave to conduct jurisdictional discovery to
provide a more satisfactory showing of the facts necessary for
removal. No scheduling order has been entered in this case. Once
this matter is resolved, discovery on class certification will be
scheduled. The Court will not recommend that this matter be
continued. However, the parties may jointly request the Court set a
scheduling conference while the findings and recommendations are
pending.
The Plaintiff has now had the opportunity file two motions for
remand. The Plaintiff mentions in her motion her intent to file
another motion to remand. The Court says it has limited resources
and cannot expend those resources on repetitive motions, brought by
a party in a piecemeal fashion. Such motions may subject a party to
the full panoply of sanctions available to the Court.
The Court cautions the Plaintiff against successive motions on
similar issues which could have been previously raised; they are
strongly discouraged and will be looked upon with disfavor.
Therefore, before filing any additional motion to remand, the
Plaintiff must obtain leave of Court to file another motion. In
requesting leave, the Plaintiff will be limited to five (5) pages
accurately summarizing the Plaintiff's new arguments and evidence
and explaining why the motion could not have been brought with one
of the other motions. The Defendant will be given leave to oppose
the Plaintiff's request and will limited to five (5) pages.
Based on the foregoing, it is recommended:
1. Plaintiff's motion to remand be denied;
2. Plaintiff's request for attorneys' fees and costs be
denied;
3. Defendant's request for sanctions be denied;
4. Plaintiff's request for continuance and leave for
jurisdictional discovery be denied; and
5. Plaintiff must obtain prior leave of Court to file another
Motion to Remand.
These Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. Section 636(b)(1). Within 14 days
after being served with these Findings and Recommendations, the
parties may file written objections with the Court. The document
should be captioned "Objections to Magistrate Judge's Findings and
Recommendations." The parties are advised that failure to file
objections within the specified time may result in the waiver of
the "right to challenge the magistrate's factual findings" on
appeal.
A full-text copy of the Court's Findings and Recommendations dated
Feb. 4, 2021, is available at https://tinyurl.com/1yme4vfk from
Leagle.com.
SIFCO INDUSTRIES: April 16 Final Settlement Approval Hearing Set
----------------------------------------------------------------
SIFCO Industries, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that the final settlement
approval hearing is set for April 16, 2021.
The Company is a defendant in a purported class action lawsuit
filed in the Superior Court of California, County of Orange, which
was filed in August 2017, arising from employee wage-and-hour
claims under California law for alleged meal period, rest break,
hourly and overtime wage calculation, timely wage payment and
necessary expenditure indemnification violations; failure to
maintain required wage records and furnish accurate wage
statements; and unfair competition.
A settlement has been reached and the Company received preliminary
court approval on July 13, 2020, following a brief delay caused by
COVID-19 closures and restrictions. Class action notices were sent
at the end of September and there were no objections to the
settlement.
On February 4, 2021, the court issued a tentative ruling to grant
final approval. The final approval hearing is scheduled for April
16, 2021.
The Company previously recorded an estimated loss of $315, which
was determined to be an adequate reserve to cover the settlement.
SIFCO Industries, Inc. produces and sells forgings and machined
components primarily for the aerospace and energy markets in the
United States and Europe. It was founded in 1916 and is
headquartered in Cleveland, Ohio.
SM ENERGY: Chieftain Royalty Bid for Class Certification Tossed
---------------------------------------------------------------
In the class action lawsuit captioned as Chieftain Royalty Company
v. SM Energy Company, Case No. 5:18-cv-01225 (W.D. Okla.), the Hon.
Judge Bernard Jones entered an order:
1. denying the Plaintiff's motion for class certification;
and
2. mooting the Defendant's application for leave to file
oversized brief in support of motion for summary judgment
with respect to individual claims of named Plaintiff
Chieftain Royalty Company.
The nature of suit alleges Contract -- Other Contract.
Chieftain Royalty Company is based in Oklahoma City and owns oil
and gas mineral interests in Oklahoma, Texas, New Mexico, Kansas,
Arkansas, California, North Dakota, South Dakota, Montana, Nebraska
and Illinois.
SM Energy Company is a company engaged in hydrocarbon exploration.
It is organized in Delaware and headquartered in Denver,
Colorado.[CC]
SOLARWINDS CORP: Jakubowitz Law Reminds of March 5 Deadline
-----------------------------------------------------------
Jakubowitz Law on Feb. 7 disclosed that securities fraud class
action lawsuits have commenced on behalf of shareholders of the
following publicly-traded companies who purchased shares within the
class periods listed below. Shareholders interested in representing
the class of wronged shareholders have until the lead plaintiff
deadline to petition the court. Your ability to share in any
recovery doesn't require that you serve as a lead plaintiff. For
more details and to speak with our firm without cost or obligation,
follow the links below.
SolarWinds Corporation (NYSE:SWI)
CONTACT JAKUBOWITZ ABOUT SWI:
https://claimyourloss.com/securities/solarwinds-corporation-loss-submission-form/?id=12729&from=1
Class Period: February 24, 2020 - December 15, 2020
Lead Plaintiff Deadline: March 5, 2021
The filed complaint alleges that defendants made materially false
and/or misleading statements and/or failed to disclose that: (1)
since mid-2020, SolarWinds Orion monitoring products had a
vulnerability that allowed hackers to compromise the server upon
which the products ran; (2) SolarWinds' update server had an easily
accessible password of 'solarwinds123'; (3) consequently,
SolarWinds' customers, including, among others, the Federal
Government, Microsoft, Cisco, and Nvidia, would be vulnerable to
hacks; (4) as a result, the Company would suffer significant
reputational harm; and (5) as a result, Defendants' statements
about SolarWinds's business, operations and prospects were
materially false and misleading and/or lacked a reasonable basis at
all relevant times.
CD Projekt S.A. (OTC PINK:OTGLY)
CONTACT JAKUBOWITZ ABOUT OTGLY:
https://claimyourloss.com/securities/cd-projekt-s-a-loss-submission-form/?id=12729&from=1
Class Period: January 16, 2020 - December 17, 2020
Lead Plaintiff Deadline: February 22, 2021
The filed complaint alleges that defendants made materially false
and/or misleading statements and/or failed to disclose that:
Throughout the class period, defendants were materially false
and/or misleading because they misrepresented and failed to
disclose the following adverse facts pertaining to the Company's
business, operations and prospects, which were known to Defendants
or recklessly disregarded by them. Specifically, Defendants made
false and/or misleading statements and/or failed to disclose that:
(1) Cyberpunk 2077 was virtually unplayable on the
current-generation Xbox or Playstation systems due to an enormous
number of bugs; (2) as a result, Sony would remove Cyberpunk 2077
from the Playstation store, and Sony, Microsoft and the Company
would be forced to offer full refunds for the game; (3)
consequently, the Company would suffer reputational and pecuniary
harm; and (4) as a result, Defendants' statements about its
business, operations, and prospects, were materially false and
misleading and/or lacked a reasonable basis at all relevant times.
Cleanspark, Inc. (NASDAQ:CLSK)
CONTACT JAKUBOWITZ ABOUT CLSK:
https://claimyourloss.com/securities/cleanspark-inc-loss-submission-form/?id=12729&from=1
Class Period: December 31, 2020 - January 14, 2021
Lead Plaintiff Deadline: March 22, 2021
The filed complaint alleges that defendants made materially false
and/or misleading statements and/or failed to disclose that: (1)
that the Company had overstated its customer and contract figures;
(2) that several of the Company's recent acquisitions involved
undisclosed related party transactions; and (3) that, as a result
of the foregoing, Defendants' positive statements about the
Company's business, operations, and prospects were materially
misleading and/or lacked a reasonable basis.
Jakubowitz Law is vigorous in pursuit of justice for shareholders
who have been the victim of securities fraud. Attorney advertising.
Prior results do not guarantee similar outcomes.
CONTACT:
JAKUBOWITZ LAW
1140 Avenue of the Americas
9th Floor
New York, New York 10036
T: (212) 867-4490
F: (212) 537-5887 [GN]
SONOMA PLANT: Williams Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Sonoma Plant Works,
Inc. The case is styled as Milton Williams, on behalf of himself
and all other persons similarly situated v. Sonoma Plant Works,
Inc., Case No. 1:21-cv-01263 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Sonoma Plant Works, Inc. is located in Rohnert Park, California and
is part of the Garden Centers & Farm Supply Stores Industry.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
SOUTHWEST AIRLINES: Court Certifies Class in Huntsman USERRA Suit
-----------------------------------------------------------------
In the case, JAYSON HUNTSMAN, Plaintiff v. SOUTHWEST AIRLINES CO.,
Defendant, Case No. 19-cv-00083-PJH (N.D. Cal.), Judge Phyllis J.
Hamilton of the U.S. District Court for the Northern District of
California grants Huntsman's motion for class certification, and
denies the Defendant's motion to file certain documents under
seal.
On Jan. 7, 2019, the Plaintiff filed a putative class action
complaint alleging a single cause of action against Southwest for a
violation of the Uniformed Services Employment and Reemployment
Rights Act of 1994 ("USERRA"). In particular, the Plaintiff
alleges that the Defendant violated title 38 U.S.C. Section
4316(b), by failing to pay its employees when they take short-term
military leave, while paying workers when they take comparable
forms of leave, such as for jury duty leave, bereavement leave, and
sick leave.
The Plaintiff is a pilot for Southwest who served in the Air Force
Reserves from 2012 to 2020 and during that period he took
short-term military leave from Southwest to fulfill his military
duty obligations.
Mr. Huntsman seeks to represent a national class defined as:
current or former employees of Southwest Airlines Co. who, during
their employment with Southwest at any time from Oct. 10, 2004
through the date of judgment in the action, have taken short-term
military leave from their employment with Southwest (i.e., military
leave that lasted 14 days or fewer) and were subject to a
collective bargaining agreement ("CBA"), except for employees
subject to the agreement between Southwest and Transport Workers
Union Local 550 covering meteorologists.
Southwest employs approximately 63,215 workers, of which 53,205 are
subject to a CBA. The 10,010 non-contract employees and the
meteorologists are not members of the proposed class. Separately,
over 8,000 of Southwest's employees have served or are actively
serving in the U.S. military.
Southwest organizes its employees in six separate work groups that
are represented by eleven different unions and have different CBAs
governing the terms of employment.
The approximate composition and union representation of each work
group is as follows:
a. Flight Ops: (i) Pilots - 9,100 employees (SWAPA), (ii)
Flight Instructors - 95 (SAPIA, TWU Local 557), and (iii) Flight
Simulator Technicians - 45 (IBT Local 556).
b. In Flight: Flight Attendants - 15,775 (TWU Local 556)
c. Customer Support & Services: 2,860 (IAM District 142) -
(i) Customer Representatives and (ii) Source of Support
Representatives
d. Ground Ops: (i) Customer Service Agents - 4,000 (TWU Local
556), (ii) 18,000 (TWU Local 556) - Ramp Agents, Operations Agents,
Provisioning Agents, and Freight Agents
e. Tech Ops: (i) Appearance Technicians - 200 (AMFA), (ii)
Facilities Maintenance Technicians - 40 (AMFA), (iii) Mechanics &
related Employees - 2,400 (AMFA), and (iv) Material Specialists
(formerly known as Stock Clerks) - 300 (IBT Local 19)
f. Network Operations Center: (i) Dispatchers - 390 (SAEA,
TWU Local 550), and (ii) Meteorologists - 10 (TWU Local)
550
g. Non-Contract - 10,000 N/A (policy handbook)
The Plaintiff alleges (and the Defendant admits) that the Defendant
does not provide a paid leave benefit for employees who take
short-term military leave to perform military service. The policy
applies to all Southwest employees, regardless of work group, job
title, or union representation.
The Plaintiff now moves for certification of the proposed class.
Judge Hamilton finds that the Plaintiff meets the Rule 23(a)
requirements of numerosity, commonality, typicality, and adequacy,
and the co-lead class counsel meet the Rule 23(g) requirements.
Once a plaintiff satisfies Rule 23(a), he or she may maintain a
class action under Rule 23(b)(3) if the court finds that "the
questions of law or fact common to the class members predominate
over any questions affecting only individual members," and "a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy."
Judge Hamilton finds that the common issues identified by the
Plaintiff, whether paid leave is a "right and benefit" under 38
U.S.C. Section 4316(b) and whether short-term military leave is
comparable to other forms of paid leave, can be resolved on a
classwide basis. Because the Plaintiff's USERRA claim turns on
Southwest's generally applicable policies, predominance is met.
She also finds that the Plaintiff satisfies the superiority
element.
Concurrent with its opposition to the motion for class
certification, the Defendant moves to file certain documents under
seal. It seeks to seal Exhibits A through C of the Berry
Declaration; a portion of the Freed Declaration along with Exhibits
1 and 2 to that declaration; and those portions of its opposition
brief that refer to material from the aforementioned Berry and
Freed Declarations. The Plaintiff designated these materials as
"confidential" under the parties' protective order and has not
filed any response or opposition to the motion.
Judge Hamilton concludes that both the submitting party and the
designating party have procedural obligations under the Civil Local
Rules with which they have failed to comply. The justification
proffered by the Defendant generally does not meet the compelling
reasons standard, except as articulated. The Judge is cognizant of
the fact that, even though the Defendant has filed the motion to
file under seal, it is the Plaintiff who has designated this
material as confidential. Accordingly, she will deny the motion
without prejudice so that the parties may refile the motion in
accordance with the procedural and substantive issues identified.
For the reasons she stated, Judge Hamilton grants the Plaintiff's
motion for class certification. She denies without prejudice the
Defendant's motion to file under seal. The Defendant may refile
its motion to file under seal within 14 days of the date on which
the Order is filed.
A full-text copy of the Court's Feb. 3, 2021 Order is available at
https://tinyurl.com/1b2qf0c0 from Leagle.com.
SPAIN: Hospitality Sector Mulls Class Action Over Business Closures
-------------------------------------------------------------------
Gemma Andreu, writing for Majorca Daily Bulletin, reports that on
Feb. 11, fifty initial claims for loss of earnings were expected to
be presented to Spain's ministry of industry, trade and tourism by
companies from the hospitality sector. Further claims will be
registered over the coming weeks up to the anniversary of the
introduction of the original state of alarm (March 14).
The claims are the first step in what will be a class action
lawsuit to be taken to the Supreme Court for damages caused by
measures adopted by the Spanish government and by regional
governments. Hospitality businesses have created a platform called
Hosteleria de Todos, which is demanding compensation for closures
and has engaged a leading law firm that has experience with such
collective lawsuits.
Around a thousand businesses have so far joined, a website having
been set up for claims to be presented -- Inicio
(lahosteleriadetodos.org). Spokespeople insist that this is not
political in that they "don't care who is in the government; we
only want good managers". They also stress that "we have the right
to be compensated for the closures". "We have adjusted our
businesses and adopted measures, but the national and regional
governments don't give a fig. And we continue to pay taxes. We are
the scapegoats for administrations exempting themselves from the
responsibility of adopting measures that they are not taking, such
as the hiring of medical personnel and track-and-tracers and
augmenting intensive care units."
It is accepted that the case will be difficult and that it will
take a long time to resolve. Nevertheless, the platform is
convinced that the demands will succeed by grouping them as a
single case. "It cannot be that everything is about restrictions
and that there is no type of aid. We cannot be left just to pay
taxes."
As reported last week, the restaurants association within the Pimem
federation of small to medium-sized businesses and the recently
formed Arema association of restaurants announced their own legal
action against the Balearic government. Thirty-three businesses
have put their names to an appeal for judicial review by the
Balearic High Court with the intention of claiming damages for loss
of earnings. [GN]
SPARTAN RACE: Settlement Class Gets Conditional Certification
-------------------------------------------------------------
In the class action lawsuit captioned as AARON FRUITSTONE, on
behalf of himself and all others similarly situated, v. SPARTAN
RACE INC., Case No. 1:20-cv-20836-BB (S.D. Fla.), the Hon. Judge
Beth Bloom entered an order:
1. conditionally certifying a Settlement Class of:
"all individuals in the United States who during the Class
Period, based on Spartan's records, paid a $14 "Racer
Insurance Fee" or "Insurance Fee" in connection with any
race organized and sponsored by Spartan. Excluded from the
Class are (a) Defendant's board members and executive
level officers; (b) the federal district and magistrate
judges assigned to this Action, along with their court
staff; and (c) individuals who submit a valid, timely
exclusion/opt-out request;"
2. appointing the Plaintiff Aaron Fruitstone as the
representative of the conditionally certified Settlement
Class;
3. designating and appointing The Moskowitz Law Firm, PLLC,
and Bonnett, Fairbourn, Friedman & Balint, P.C., as the
legal counsel for the Settlement Class; and
4. granting preliminary settlement approval.
Spartan Race is an operator of an obstacle race and endurance brand
intended to offer sports challenges and courses.
A copy of the Court's order dated Feb. 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3qd9cSL at no extra charge.[CC]
SPX CORP: Court Grants Bid for Summary Judgment in Brass Class Suit
-------------------------------------------------------------------
In the case, DAVID BRASS, RICHARD HAMILTON, CHARLES KOZITZKY, RON
BEEGLE, DAVID BABCOCK, and CARL VAN LOON, Plaintiffs v. SPX
CORPORATION, Defendant, Case No. 3:14-cv-656-RJC-DSC (W.D.N.C.),
Judge Robert J. COnrad, Jr., of the U.S. District Court for the
Western District of North Carolina, Charlotte Division, entered an
order:
a. granting the Defendant's Motion for Summary Judgment;
b. denying the Plaintiffs' Motion for Partial Summary
Judgment;
c. dismissing with prejudice the Plaintiffs' Amended
Complaint;
d. denying as moot the Defendant's Motions in Limine to
Exclude and Motion to Strike the Reports, Opinions, and
Testimony of Plaintiffs' Expert Michael A. Dunn; and
e. denying as moot the Plaintiffs' Motion to Strike Response
in Opposition to Motion and Exclude Defendant's Expert
Witness Report and Testimony of Adam Reese.
In 2001, the UAW along with several retired SPX union members filed
two class action lawsuits against SPX alleging it had violated the
union members' rights to lifetime health benefits. The parties
eventually negotiated a resolution to those suits, which led to the
execution and court approval of two settlement agreements in 2004.
The language at issue in each Settlement Agreement is identical.
In the Settlement Agreements, SPX agreed to provide certain health
care benefits to retirees and surviving spouses for the remainder
of their lives. Some specific benefits differed depending on the
residence of the retirees, and exhibits to the Settlement
Agreements set out the principal features of the described plans,
including, among other things, co-pays, out-of-pocket expenses,
deductibles, payment limits, and coverage.
The Settlement Agreements do not mandate that SPX provide a
particular plan or type of plan, nor do they require that SPX
provide benefits that are identical to those described in the
accompanying exhibits. They instead memorialized the benefit
levels upon which the parties had agreed.
After the signing of the Settlement Agreements in 2004, SPX made
several changes affecting the provision of benefits to the
settlement groups without complaint from the UAW. Effective
January 2015, SPX implemented a Healthcare Reimbursement Account
Plan ("HRA") in place of the prior plan. Under this plan,
Medicare-eligible class members were to enroll in HRA accounts that
had been set up for them, and the members were to acquire their own
insurance and be reimbursed for the purchase using the HRA funds.
Plaintiffs/Retirees Brass, Beegle, Babcock, Van Loon, Hamilton,
and Kozitzky, along with several other retirees who have since been
dismissed from the case, filed their Complaint against SPX on Nov.
25, 2014. They brought two claims in their Complaint: (1)
violation of the settlement agreements under section 301 of the
Labor Management Relations Act ("LMRA"); and (2) violation of
employee welfare benefit plans under the Employee Retirement Income
Security Act ("ERISA"). The Plaintiffs filed their Motion for
Preliminary Injunction on Dec. 15, 2015.
By the time the Plaintiffs' Motion for Preliminary Injunction
became ripe, the event that the Plaintiff sought to prevent had
already occurred, and the Court denied the motion as moot. The
Plaintiffs appealed to the Fourth Circuit on Oct. 27, 2015,
whereupon the Fourth Circuit denied the Plaintiffs' appeal on Sept.
28, 2017, affirming the Court's Order under different reasoning and
remanding for further proceedings. The Court denied the
Plaintiffs' Motion to Certify Class, filed during the intervening
time period, on Oct. 17, 2017.
Following failed settlement discussions both parties now seek
summary judgment. The Defendant filed its Motion for Summary
Judgment on Oct. 9, 2020. The Plaintiffs filed their Motion for
Partial Summary Judgment on the same day. The Court heard oral
arguments from both parties regarding their respective motions on
Nov. 18, 2020.
The parties have also filed recent motions to strike expert witness
opinions. On Oct. 30, 2020, the Defendant filed a Motion in Limine
and a Motion to Strike, both to exclude the reports, opinions, and
testimony of the Plaintiffs' expert Michael A. Dunn. On Nov. 13,
2020, the Plaintiffs filed a Motion to Strike as well, to exclude
portions of the Defendant's expert report and the corresponding
testimony of the Defendant's expert Adam Reese.
The Plaintiff's Amended Complaint contains four claims: two claims
of violation of the Settlement Agreements' under section 301 of the
LMRA, and two claims of 'violation of ERISA plans' under Section
502(a)(1)(B) of the ERISA. The Defendant seeks to dismiss all four
claims at summary judgment, while the Plaintiffs seek partial
summary judgment in their favor on their claims that the HRA does
not provide substantially equivalent healthcare coverage to that
guaranteed under the Settlement Agreements due to several specific
differences.
The Settlement Agreements state that "any obligation on the part of
SPX to provide coverage under a specified plan or its substantial
equivalent will be deemed to require only that SPX provide coverage
which is substantially equivalent in benefits and it will not be
deemed to regulate or affect the manner in which SPX makes such
substantially equivalent benefits available." The Fourth Circuit
has examined this phrase and explained that the Plaintiffs' claims
"turn on whether the creation of the HRA accounts satisfies the
'substantially equivalent' provisions of each of the settlement
agreements." Both parties' motions for summary judgment hinge on
whether SPX's HRA system provides "substantially equivalent"
benefits to those described in the Settlement Agreements.
Judge Conrad finds that the determinative question in the case is
whether SPX has provided the retirees with substantially equivalent
benefits to those guaranteed in the original Settlement Agreements.
He holds that there is "no genuine dispute as to any material
fact" on that issue; the Plaintiffs have failed to show that the
SPX HRA system does not provide retirees with the
contractually-required substantially equivalent benefits under the
Settlement Agreements, and Defendant SPX "is entitled to judgment
as a matter of law." Furthermore, because he did not rely on any
expert witness report or opinion in determining summary judgment,
the parties' cross motions to exclude and strike expert witness
testimony are moot.
For these reasons, Judge Conrad (i) granted the Defendant's Motion
for Summary Judgment, (ii) denied the Plaintiffs' Motion for
Partial Summary Judgment, (iii) dismissed with prejudice the
Plaintiffs' Amended Complaint, (iii) denied as moot the Defendant's
Motions in Limine to Exclude and Motion to Strike the Reports,
Opinions, and Testimony of Plaintiffs' Expert Michael A. Dunn; and
(v) denied as moot the Plaintiffs' Motion to Strike Response in
Opposition to Motion and Exclude Defendant's Expert Witness Report
and Testimony of Adam Reese.
A full-text copy of the Court's Feb. 3, 2021 Order is available at
https://tinyurl.com/338xg6h2 from Leagle.com.
SPX CORPORATION: Brass Amended Complaint Nixed w/ Prejudice
-----------------------------------------------------------
In the class action lawsuit captioned as DAVID BRASS, RICHARD
HAMILTON, CHARLES KOZITZKY, RON BEEGLE, DAVID BABCOCK, and CARL VAN
LOON, v. SPX CORPORATION, Case No. 3:14-cv-00656-RJC-DSC
(W.D.N.C.), the Hon. Judge Robert J. Conrad, Jr., entered an order
that:
1. The Defendant's motion for Summary Judgment is granted;
2. The Plaintiffs' Motion for Partial Summary Judgment is
denied;
3. The Plaintiffs' amended complaint is dismissed with
prejudice;
4. The Defendant's motions in limine to exclude and motion to
strike the reports, opinions, and testimony of Plaintiffs'
Expert Michael A. Dunn, are denied as moot; and
5. The Plaintiffs' motion to strike response in opposition to
motion and exclude defendant's expert witness report and
testimony of Adam Reese is denied as moot.
The Court said, "The determinative question in this case is whether
SPX has provided the retirees with substantially equivalent
benefits to those guaranteed in the original Settlement Agreements.
There is "no genuine dispute as to any material fact" on that
issue; the Plaintiffs have failed to show that the SPX HRA system
does not provide retirees with the contractually-required
substantially equivalent benefits under the Settlement Agreements,
and Defendant SPX "is entitled to judgment as a matter of law."
Furthermore, because the Court did not rely on any expert witness
report or opinion in determining summary judgment, the parties'
cross motions to exclude and strike expert witness testimony are
moot."
David Brass, Ron Beegle, David Babcock, Carl Van Loon, Richard
Hamilton, and Charles Kozitzky (Plaintiffs or retirees), along with
several other retirees who have since been dismissed from this
case, filed their Complaint against SPX Corporation on November 25,
2014. The Plaintiffs brought two claims in their Complaint: (1)
violation of the settlement agreements under section 301 of the
Labor Management Relations Act (LMRA), 29 U.S.C. section 185; and
(2) violation of employee welfare benefit plans under the Employee
Retirement Income Security Act (ERISA), 29 U.S.C. section
1132(a)(1)(B).
SPX is a supplier of highly engineered infrastructure equipment and
technologies. The company operates within four markets: heating,
ventilation, and air conditioning, detection and measurement, power
transmission and generation, and engineered solutions.
A copy of the Court's order dated Feb. 4, 2020 is available from
PacerMonitor.com at https://bit.ly/2Onf6m0 at no extra charge.[CC]
STELVIO TRANSPORT: Faces Johnson Wage-and-Hour Suit in California
-----------------------------------------------------------------
COURTNEY JOHNSON, individually and on behalf of all others
similarly situated, Plaintiff v. STELVIO TRANSPORT LLC and DOES 1
through 100, inclusive, Defendants, Case No.
37-2021-00006153-CU-OE-CTL (Cal. Super., San Diego Cty., February
10, 2021) is a class action against the Defendants for violations
of the California Labor Code and the California Business &
Professions Code including unpaid overtime, unpaid meal period
premiums, unpaid rest period premiums, unpaid minimum wages, final
wages not timely paid, non-compliant wage statements, and
unreimbursed business expenses.
The Plaintiff was employed by the Defendants as an hourly-paid
employee from October of 2017 to February of 2018.
Stelvio Transport LLC is a transportation and logistics services
company in California. [BN]
The Plaintiff is represented by:
Douglas Han, Esq.
Shunt Tatavos-Gharajeh, Esq.
JUSTICE LAW CORPORATION
751 N. Fair Oaks Avenue, Suite 101
Pasadena, CA 91103
Telephone: (818) 230-7502
Facsimile: (818) 230-7259
SUPER MICRO: Bid to Dismiss NY Trades Council & Hotel Suit Pending
------------------------------------------------------------------
Super Micro Computer, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that the motion to
dismiss the consolidated putative class action suit headed by the
New York Hotel Trades Council & Hotel Association of New York City,
Inc. Pension Fund, is pending.
On February 8, 2018, two putative class action complaints were
filed against the Company, the Company's Chief Executive Officer,
and the Company's former Chief Financial Officer in the U.S.
District Court for the Northern District of California (Hessefort
v. Super Micro Computer, Inc., et al., No. 18-cv-00838 and United
Union of Roofers v. Super Micro Computer, Inc., et al., No.
18-cv-00850).
The complaints contain similar allegations, claiming that the
defendants violated Section 10(b) of the Securities Exchange Act
due to alleged misrepresentations and/or omissions in public
statements regarding recognition of revenue.
The court subsequently appointed New York Hotel Trades Council &
Hotel Association of New York City, Inc. Pension Fund as lead
plaintiff.
The lead plaintiff then filed an amended complaint naming the
Company's Senior Vice President of Investor Relations as an
additional defendant. On June 21, 2019, the lead plaintiff filed a
further amended complaint naming the Company's former Senior Vice
President of International Sales, Corporate Secretary, and Director
as an additional defendant.
On July 26, 2019, the Company filed a motion to dismiss the
complaint. On March 23, 2020, the Court granted the Company's
motion to dismiss the complaint, with leave for lead plaintiff to
file an amended complaint within 30 days. On April 22, 2020, lead
plaintiff filed a further amended complaint.
On June 15, 2020, the Company filed a motion to dismiss the further
amended complaint, the hearing for which was calendared for
September 23, 2020; however, the Court held a conference on
September 15 to discuss how the Court could efficiently address the
recent Securities and Exchange Commission (SEC) settlement
agreement.
The parties stipulated to allow plaintiffs to further amend the
complaint solely to add allegations relating to the SEC settlement.
On October 14, 2020, plaintiffs filed a Fourth Amended Complaint.
On October 28, 2020, defendants filed a supplemental motion to
dismiss.
The Court has taken the motion under submission. The Company
believes the claims are without merit and intends to vigorously
defend against the lawsuit.
Super Micro Computer, Inc., together with its subsidiaries,
develops and manufactures high-performance server and storage
solutions based on modular and open architecture. Its solutions
range from complete server, storage, modular blade servers, blades,
and workstations to full racks, networking devices, server=
management software, server sub-systems, and support and services.
It sells its products through direct sales force, distributors,
value-added resellers, system integrators, and original equipment
manufacturers. The company has operations primarily in the United
States, Europe, Asia, and internationally. Super Micro Computer,
Inc. was founded in 1993 and is headquartered in San Jose,
California.
SYMMETRY MANAGEMENT: Class Status Bid Partly Granted in Dunbar Suit
-------------------------------------------------------------------
In the class action lawsuit captioned as Dunbar v. Symmetry
Management Corp., Case No. 8:19-cv-00715 (M.D. Fla.), the Hon.
Judge Charlene Edwards Honeywel entered an order granting in part
and denying in part joint motion for class certification and final
approval of class action settlement agreement. The motion is denied
as to the service award.
The suit alleges violation of the Fair Debt Collection Practices
Act.
Symmetry Management was founded in 1993. The company's line of
business includes the practice of general or specialized medicine
and surgery for various licensed practitioners.[CC]
TIERNO CARE: Castro Seeks Unpaid Wages, Back-Pay Under FLSA, DCMWA
------------------------------------------------------------------
RUTH MELANIE CASTRO, Individually and on Behalf of All Others
Similarly Situated v. TIERNO CARE HOME HEALTH AGENCY, INC. D/B/A
TIERNO CARE AGENCY; J & S HEALTH CARE, LLC; PROFESSIONAL HEALTHCARE
RESOURCES OF WASHINGTON DC, INC.; SONIA COLBERT; and JOSE DOLORES
CRUZ ROMERO, Case No. 1:21-cv-00282 (D.D.C., Jan. 29, 2021) is a
class and collective action complaint against the Defendants
seeking to recover unpaid wages, back-pay, restitution, liquidated
damages, reasonable attorney's fees and costs, and all related
penalties and damages under the Federal Fair Labor Standards Act,
the D.C. Minimum Wage Act Revision Act of 1992, and the D.C. Wage
Payment and Collection Law.
The Plaintiff contends that the Defendants compensated her and
similarly situated employees at their regular hourly rate for all
hours they worked, even for the hours worked over 40. She adds that
the Defendants maintained records of the hours and rates of pay she
and similarly situated aides worked.
The Plaintiff and similarly situated employees worked for the
Defendants as home health aides.
The Defendants are doing business in home healthcare industry. Ms.
Sonia Colbert owns and operates Tierno Care Agency. Mr. Jose
Dolores Cruz Romero owns and operates J&S Health Care. Sonia
Colbert and Jose Dolores Cruz Romero are husband and wife.[BN]
The Plaintiff is represented by:
Michael K. Amster, Esq.
ZIPIN, AMSTER & GREENBERG, LLC
8757 Georgia Ave., Suite 400
Silver Spring, MD 20910
Telephone: (301) 587 9373
Facsimile: (240) 839 9142
E-mail: mamster@zagfirm.com
TOPNET INC: Jaquez Files ADA Suit in S.D. New York
--------------------------------------------------
A class action lawsuit has been filed against TopNet Inc. The case
is styled as Ramon Jaquez, on behalf of himself and all others
similarly situated v. TopNet Inc., Case No. 1:21-cv-01249
(S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
TopNet Inc. -- http://www.topnetinc.com/-- is a fast grow home
solution brand in the US, fulfilling consumers' kitchen and home
needs with trend forward styling and high-quality products.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
TRACFONE WIRELESS: Jones' Claims Tossed; May Amend Suit by March 5
------------------------------------------------------------------
The U.S. District Court for the Northern District of California
grants the Defendants' motion to dismiss the lawsuit styled ANTONIO
JONES, Plaintiff v. TRACFONE WIRELESS, INC., et al., Defendants,
Case No. 20-cv-04345-BLF (N.D. Cal.).
Plaintiff Jones brings the purported class action complaint against
Defendants Tracfone and 20/20 Communications, Inc. for
misclassifying him as an independent contractor. Mr. Jones seeks
compensation in the form of unpaid wages, unpaid overtime, and
uncompensated meal and rest breaks.
The Defendants have filed a motion to dismiss. Mr. Jones filed a
brief in opposition. They argue that all claims should be dismissed
because Mr. Jones has failed to adequately plead an employment
relationship with either Defendant. The Court agrees.
As a threshold issue, Mr. Jones has failed to plead facts
establishing what, exactly, he did for either Defendant, District
Judge Beth Labson Freeman holds. There are no facts demonstrating
that he was misclassified as an independent contractor. For this
reason alone, all of the claims fail.
The Court will grant Mr. Jones leave to amend to cure this
deficiency in the complaint. Mr. Jones needs to separately plead
facts against each Defendant establishing an employment
relationship with each Defendant, a relationship between
Defendants, and that the conduct underlying the claims is
attributable to each Defendant.
The Defendants also seek dismissal on Mr. Jones' alternate theory
of liability of the Defendants as "client employers" under
California Labor Code Section 2810.3. The Court agrees with the
Defendants that Mr. Jones failed to provide the requisite 30 days'
notice to his alleged client employers as required by Labor Code
Section 2801.3. By Mr. Jones' own admission, he provided notice in
June 2020, more than three months after he filed his second amended
complaint seeking recovery for payment of wages.
The Court finds the statute to be clear and unambiguous in
requiring notice "prior to filing a civil action" premised on
"violations covered by" section 2810.3. Since Mr. Jones did not
provide 30 days' pre-suit notice, his claims under Section 2810.3
fail, and because no amendment could cure the notice deficiency,
allegations under Section 2810.3 are dismissed with prejudice.
As to Mr. Jones' first and second claims for unpaid minimum wage
and unpaid overtime, Mr. Jones must plead facts describing his
workday and workweek. The current complaint contains no factual
allegations establishing that Mr. Jones worked enough hours to
qualify for any additional payment.
The Court agrees with Mr. Jones that Landers does not require a
plaintiff to identify an exact calendar week or a particular
instance of denied minimum wage and that the allegations need only
give rise to a plausible inference that there was such an instance.
The current complaint, though, does not give rise to such an
inference.
Mr. Jones' third and fourth claims for failure to provide
sufficient rest breaks and meal periods also lack a factual basis,
and the Court advises Mr. Jones to plead some facts indicating why
he was prevented from taking these breaks. Similar additional
factual pleadings are needed to establish Mr. Jones' seventh claim
for failure to reimburse expenses. Mr. Jones needs to establish
facts as to why he incurred expenses that were necessary to his
job. His fifth claim (failure to provide accurate wage statements)
and sixth claim (waiting time penalties) fail as derivatives of the
first four claims.
Mr. Jones' eighth claim for violation of California's Unfair
Competition Law fails because he has failed to plead that he lacks
an adequate remedy at law, Judge Freeman holds.
As for Mr. Jones' ninth claim under California's Private Attorneys
General Act, it fails as a derivative claim as well. On amendment,
Mr. Jones needs to explain who constitutes an aggrieved employee
and establish that he has properly exhausted this claim under Cal.
Lab. Code Section 2699.3(a)(1) and that it does not violate the
one-year statute of limitations under Cal. Civ. Proc. Code Section
340(a).
All of Mr. Jones' claims are dismissed with leave to amend except
his allegations under California Labor Code Section 2810.3, which
are dismissed without leave to amend. Mr. Jones' amended complaint
is due no later than March 5, 2021.
A full-text copy of the Court's Order dated Feb. 4, 2021, is
available at https://tinyurl.com/4l7aiscz from Leagle.com.
TRANSAM TRUCKING: Roberts Claims Unpaid Minimum Wages for Drivers
-----------------------------------------------------------------
KIRK ROBERTS, JOHN CURTIS, TERRENCE COLVIN-WILLIAMS, REGINALD
BRADLEY, DAVID COLEMAN, and CARL McROBERTS JR., on behalf of
themselves and all others similarly situated, Plaintiffs v. TRANSAM
TRUCKING, INC., Defendant, Case No. 2:21-cv-02073 (D. Kan.,
February 10, 2021) is a class action against the Defendant for
violations of the Fair Labor Standards Act and the Kansas Consumer
Protection Act by failing to pay the Plaintiffs and all others
similarly situated persons all minimum wages owed to them for
attending the Defendant's truck driver orientation and subsequent
training.
The Plaintiffs attended the Defendant's orientation and worked as
lease purchase truck drivers at any time between 2019 and 2020.
TransAm Trucking, Inc. is a transportation carrier services company
based in Olathe, Kansas. [BN]
The Plaintiffs are represented by:
Brendan J. Donelon, Esq.
DONELON, P.C.
4600 Madison, Ste. 810
Kansas City, MO 64112
Telephone: (816) 221-7100
Facsimile: (816) 709-1044
E-mail: brendan@donelonpc.com
- and –
Hillary Schwab, Esq.
Brant Casavant, Esq.
Rachel Smit, Esq.
FAIR WORK, P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: (617) 607-3260
E-mail: hillary@fairworklaw.com
brant@fairworklaw.com
rachel@fairworklaw.com
TRITERRAS INC: The Klein Law Reminds of February 19 Deadline
------------------------------------------------------------
The Klein Law Firm announces that a class action complaint has been
filed on behalf of shareholders of Triterras, Inc., f/k/a Netfin
Acquisition Corp. (NASDAQ: TRIT) alleging that the Company violated
federal securities laws.
Class Period: August 20, 2020 and December 16, 2020
Lead Plaintiff Deadline: February 19, 2021
Learn more about your recoverable losses in TRIT:
http://www.kleinstocklaw.com/pslra-1/triterras-inc-f-k-a-netfin-acquisition-corp-loss-submission-form?id=12720&from=5
The filed complaint alleges that Triterras, Inc., f/k/a Netfin
Acquisition Corp. made materially false and/or misleading
statements and/or failed to disclose that: (1) the extent to which
Company's revenue growth relied on Triterras' relationship with
Rhodium to refer users to the Kratos platform; (2) that Rhodium
faced significant financial liabilities that jeopardized its
ability to continue as a going concern; (3) that, as a result,
Rhodium was likely to refer fewer users to the Company's Kratos
platform; and (4) that, as a result of the foregoing, Defendants'
positive statements about the Company's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
Shareholders have until February 19, 2021 to petition the court for
lead plaintiff status. Your ability to share in any recovery
doesn't require that you serve as a lead plaintiff.
For additional information about the TRIT lawsuit, please contact
J. Klein, Esq. by telephone at 212-616-4899 or click the link
above.
J. Klein, Esq. represents investors and participates in securities
litigations involving financial fraud throughout the nation.
Attorney advertising. Prior results do not guarantee similar
outcomes.
CONTACT:
J. Klein, Esq.
Empire State Building
350 Fifth Avenue
59th Floor
New York, NY 10118
jk@kleinstocklaw.com
Telephone: (212) 616-4899
Fax: (347) 558-9665
www.kleinstocklaw.com [GN]
UBER BV: McCarthy Tetrault Attorneys Discuss Class Action Ruling
----------------------------------------------------------------
Kara Smyth, Esq. -- ksmyth@mccarthy.ca -- Dana M Peebles, Esq. --
dpeebles@mccarthy.ca -- Cassidy Thomson, Esq. --
cthomson@mccarthy.ca -- and Carley Frazer, Esq., of McCarthy
Tetrault LLP, in an article for Mondaq, report that in a recent
data breach class action decision, the Alberta Court of Queen's
Bench ("the Court") refused certification, thereby exercising its
important gatekeeping function, on the basis that a class action
was not a preferable procedure to litigate a matter in which no
member of the proposed Class had suffered harm or a loss arising
from the breach.
In Setoguchi v Uber B.V., the Plaintiff sought certification of a
class action on behalf of users whose personal information was
accessed during a third party data breach. The decision of the
Court denying certification contains careful analysis of the
landscape of data breach jurisprudence in Canada, and reflects on
the recent emphasis, in Canadian Courts, on proportionality and
practicality.
Background
In late 2016, Uber was attacked by outside actors who accessed the
names, telephone numbers and email addresses of a number of users
globally (including about 800,000 customers in Canada). Uber paid
the outside actors in exchange for an assurance that the data in
their hands would be destroyed.
In the 4 years between the breach and the certification motion,
neither the Plaintiff nor any member of the proposed Class had come
forward with proof of an economic loss or psychological harm
arising out of the data incident.
Key Principles
Data breaches are increasingly common in the modern world, and it
is no surprise that there has been a corresponding increase in
class actions concerning data breaches. The review of the
accumulated certification jurisprudence by the Court was therefore
timely.
In terms of class action principles generally, the Court relied on
Andriuk v Merrill Lynch Canada Inc., 2013 ABQB 422[1] in
considering the Court's gate-keeping function (an approach also
seen in the Supreme Court of Canada's recent holding in Atlantic
Lottery Corp. Inc. v Babstock, 2020 SCC 19, though not cited by the
Court).
In canvassing the jurisprudence on class actions involving data
breaches, the Court cited with approval the Ontario decision in
Kaplan v Casino Rama, 2019 ONSC 2025, where certification was
denied in circumstances involving disclosure of non-private
personal information and risk of future harm. The Court also
referred to the Quebec decision in Bourbonniere c Yahoo Inc., 2019
QCCS 264, which found that "the transient embarrassment and
inconvenience [arising from a data breach] . . . are of the nature
of ordinary annoyance and do not constitute compensable damages."
Finally, the Court imported the consideration of proportionality in
its preferability analysis, citing Berg v Canadian Hockey League,
2017 ONSC 2608 with references to Hryniak v Mauldin, 2014 SCC 7
[Hyrniak].
Reasoning
The Court accepted Uber's argument that the Court should not
certify a class action based on mere speculation or potential for
future harm; otherwise, all organizations holding data that
suffered a breach would be "subject to a class action without any
member having to prove harm and regardless of the type of
information that is accessed", even non-private personal
information.[3]
The Court conducted the preferability inquiry through the
Hollick[4] lens of the 3 principal advantages of class actions -
judicial economy, access to justice and behaviour modification -
and emphasized the importance of assessing the litigation as a
whole, with a focus on the question of "what is really in issue in
the case" (in this case, whether the Plaintiff could establish any
compensable loss or harm).
With respect to judicial economy, the Court found that it was not
clear that the Plaintiff could establish class-wide harm, and that
the possibility of future harm could require all class members to
resort to individual assessments, particularly in light of Uber's
defences.
With respect to access to justice, the Court said that, in this
case, a class action proceeding would not "serve the interests of
access to justice," because the claims, at best, "appear to be
nominal damages claims that are 'so small as to be non-existent' --
as I said above, de minimus, or although there is again, no
evidence to support same, potentially 'so large as to provide
sufficient incentive for individual action'."
The theory of behavioural modification was central to the
Plaintiff's argument for certification. The Court noted the
regulatory punishments already meted out to Uber, and concluded
that behaviour modification alone was not, in any event, a basis
upon which to certify a class action, emphasizing again the Court's
gate keeping function.
Ultimately, under the ambit of section 5(1)(d) of the CPA, the
Court relied on the principles of proportionality from Hyrniak, its
gatekeeper function, and the need to weed out unmeritorious claims
to dismiss the certification motion on the basis that a class
proceeding was not preferable:
[22] . . . In the face of no such evidence [of harm], and in the
spirit of Hyrniak . . . , I believe that it is time for the Court
to take its gate keeping function seriously, and end this
litigation as a class proceeding now, leaving Setoguchi or any
other member of the class to pursue a personal action if they so
wish.
McCarthy Tétrault LLP acted as counsel for Uber with a team led by
Kara Smyth, which included Dana Peebles and Cassidy Thomson,
together with Uber in-house counsel Ryan MacIsaac. [GN]
UGI CORP: Agreement Reached with Indirect Purchaser Plaintiffs
--------------------------------------------------------------
UGI Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 4, 2021, for the
quarterly period ended December 31, 2020, that the Partnership and
counsel for the indirect purchaser plaintiffs filed a joint
statement with the court that they had reached an agreement in
principle to settle the claims of the remaining classes and
plaintiffs, subject to court approval.
Between May and October of 2014, purported class action lawsuits
were filed in multiple jurisdictions against the Partnership/UGI
and a competitor by certain of their direct and indirect customers.
The class action lawsuits allege, among other things, that the
Partnership and its competitor colluded, beginning in 2008, to
reduce the fill level of portable propane cylinders from 17 pounds
to 15 pounds and combined to persuade their common customer,
Walmart Stores, Inc., to accept that fill reduction, resulting in
increased cylinder costs to retailers and end-user customers in
violation of federal and certain state antitrust laws.
The claims seek treble damages, injunctive relief, attorneys' fees
and costs on behalf of the putative classes.
On October 16, 2014, the United States Judicial Panel on
Multidistrict Litigation transferred all of these purported class
action cases to the Western Missouri District Court. As the result
of rulings on a series of procedural filings, including petitions
filed with the Eighth Circuit and the U.S. Supreme Court, both the
federal and state law claims of the direct customer plaintiffs and
the state law claims of the indirect customer plaintiffs were
remanded to the Western Missouri District Court.
The decision of the Western Missouri District Court to dismiss the
federal antitrust claims of the indirect customer plaintiffs was
upheld by the Eighth Circuit.
On April 15, 2019, the Western Missouri District Court ruled that
it has jurisdiction over the indirect purchasers' state law claims
and that the indirect customer plaintiffs have standing to pursue
those claims.
On August 21, 2019, the District Court partially granted the
Company's motion for judgment on the pleadings and dismissed the
claims of indirect customer plaintiffs from ten states and the
District of Columbia.
On October 2, 2019, the Partnership reached an agreement to resolve
the claims of the direct purchaser class of plaintiffs; the
agreement received final court approval on June 18, 2020.
On September 18, 2020, the Partnership and counsel for the indirect
purchaser plaintiffs filed a joint statement with the court that
they had reached an agreement in principle to settle the claims of
the remaining classes and plaintiffs, subject to court approval.
No further updates were provided in the Company's SEC report.
UGI Corporation distributes, stores, transports, and markets energy
products and related services in the United States and
internationally. The company operates through four segments:
AmeriGas Propane, UGI International, Midstream & Marketing, and UGI
Utilities. UGI Corporation was founded in 1882 and is based in King
of Prussia, Pennsylvania.
ULTRA SHINE: Approval of Collective Action Notice Sought
--------------------------------------------------------
In the class action lawsuit captioned as Romel Hernandez v. Ultra
Shine Car Wash, Inc., et al., Case No. 7:20-cv-00498-NSR-AEK
(S.D.N.Y.), the parties have agreed, as follows:
A. Proposed Collective Action Notice to be sent to putative
collective action members.
B. Proposed Opt-In form.
C. Proposed form of Order for the Court.
The parties ask the Court to enter the proposed order.
According to the letter motion, the parties have met and conferred
regarding the content of plaintiff's intended Fair Labor Standards
Act (FLSA) collective action documents in this case, and they have
reached an agreement on the form of a proposed notice and opt-in
form, obviating the need for any motion practice.
A copy of the letter motion dated Feb. 3, 2020 is available from
PacerMonitor.com at https://bit.ly/2MViDri at no extra charge.[CC]
The Plaintiff is represented by:
David Stein, Esq.
SAMUEL & STEIN
38 West 32nd Street, Suite 1110
New York, NY 10001
Telephone: (212) 563-9884
Facsimile: (212) 563-9870
Website: www.samuelandstein.com
ULTRALIFE CORP: Gains $1,593 in Batteries Antitrust Suit Settlement
-------------------------------------------------------------------
Ultralife Corporation said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 4, 2021, for
the fiscal year ended December 31, 2020, that the company has
gained $1,593 as an award in the settlement of the class action
suit entitled, In Re: Lithium-ion Batteries Antitrust Litigation,
13-MD-02420-YGR.
On December 14, 2020, Ultralife was awarded a final settlement of
$1,593 (net of fees) upon court approval and order authorizing
distribution of settlement funds in a class action lawsuit (In Re:
Lithium-ion Batteries Antitrust Litigation, 13-MD-02420-YGR, United
States District Court, Northern District of California).
At the time of the court order, the settlement funds were held in
an escrow account controlled by the court for administrative
purposes, and there remained no potential for appeal or reversal of
the court order.
Based on all conditions present upon the court order, it was
concluded that the net settlement amount was fully realizable.
Accordingly, a gain of $1,593 was recognized and is separately
reported as gain on litigation settlement on the consolidated
statement of income and comprehensive income for the year ended
December 31, 2020.
The corresponding amount due is included in prepaid expenses and
other current assets as of December 31, 2020.
Ultralife Corporation is a battery, energy and communication
product company that serves government, defense and commercial
customers. The Company's energy services provides
back-up/stationary power services and solutions to the
communications, power utility and data processing industries. The
battery and energy product segment provides non-rechargeable and
rechargeable batteries. The company is based in Newark, New York.
UNION PACIFIC: Brasier Suit Alleges Disability Discrimination
-------------------------------------------------------------
MARK BRASIER, individually and on behalf of all others similarly
situated, Plaintiff v. UNION PACIFIC RAILROAD CO., Defendant, Case
No. 4:21-cv-00065-MSA (D. Ariz., February 8, 2021) is a class
action against the Defendant for violation of the Americans with
Disabilities Act.
The case arises from the Defendant's alleged practice of
discrimination under the ADA by implementing the Fitness-for-Duty
program which required employees in certain positions to disclose
specified health conditions even where the condition had no impact
on their ability to safely perform their jobs. The Plaintiff was
one of the employees who was removed from service after being
subjected to a Fitness-for-Duty evaluation under the Defendant's
new program and excluded from work at Union Pacific on the basis of
his disability, the suit says.
Union Pacific Railroad Co. is a railroad carrier headquartered in
Omaha, Nebraska. [BN]
The Plaintiff is represented by:
David E. Schlesinger, Esq.
James H. Kaster, Esq.
Neil D. Pederson, Esq.
NICHOLS KASTER, PLLP
80 South Eighth Street
4700 IDS Center
Minneapolis, MN 55402-2242
Telephone: (612) 256-3200
Facsimile: (612) 338-4878
E-mail: schlesinger@nka.com
kaster@nka.com
npederson@nka.com
UNION PACIFIC: Fitness-for-Duty Program Violates ADA, DeFries Says
------------------------------------------------------------------
NICHOLAS DEFRIES, individually and on behalf of all others
similarly situated, Plaintiff v. UNION PACIFIC RAILROAD CO.,
Defendant, Case No. 3:21-cv-00205-SB (D. Or., February 8, 2021) is
a class action against the Defendant for violation of the Americans
with Disabilities Act.
The case arises from the Defendant's alleged practice of
discrimination under the ADA by requiring employees in certain
positions to disclose specified health conditions under its
Fitness-for-Duty program even where the condition had no impact on
their ability to safely perform their jobs. The Plaintiff was one
of the employees who was removed from service after being subjected
to a Fitness-for-Duty evaluation under the Defendant's new program
and excluded from work at Union Pacific on the basis of his
disability, says the complaint.
DeFries was hired by Union Pacific in Oregon in July 2004, and
worked as a conductor and brakeman until approximately March 2018
when he was removed from service.
Union Pacific Railroad Co. is a railroad carrier headquartered in
Omaha, Nebraska. [BN]
The Plaintiff is represented by:
Anthony S. Petru, Esq.
Gavin Barney, Esq.
HILDEBRAND MCLEOD & NELSON
250 Frank H. Ogawa Plaza, 4th Floor
Oakland, CA 94612
Telephone: (510) 451-6732
E-mail: petru@hmnlaw.com
barney@hmnlaw.com
- and –
James H. Kaster, Esq.
Lucas J. Kaster, Esq.
NICHOLS KASTER, PLLP
4700 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
E-mail: kaster@nka.com
lkaster@nka.com
UNITED AIRLINES: Seventh Cir. Flips Dismissal of White USERRA Suit
------------------------------------------------------------------
In the case, ERIC WHITE, on behalf of himself and others similarly
situated, Plaintiff-Appellant v. UNITED AIRLINES, INC. and UNITED
CONTINENTAL HOLDINGS, INC., Defendants-Appellees, Case No. 19-2546
(7th Cir.), the U.S. Court of Appeals for the Seventh Circuit
reversed the judgment of the district court dismissing the
Plaintiff's complaint.
In 1994, Congress passed the Uniformed Services Employee and
Reemployment Rights Act ("USERRA") with the goal of prohibiting
civilian employers from discriminating against employees because of
their military service. At issue in the case is a matter of first
impression in the courts of appeals: Whether USERRA's mandate that
military leave be accorded the same "rights and benefits" as
comparable, nonmilitary leave requires an employer to provide paid
military leave to the same extent that it provides paid leave for
other absences, such as jury duty and sick leave. The district
court answered that question in the negative and dismissed the
suit.
Mr. White has been employed as a commercial airline pilot since
2005, first for Continental Airlines and then for United Airlines
following United's acquisition of Continental in 2010. White has
also served as a member of the United States Air Force since 2000,
first on active duty and now on reserve duty. As a reservist he is
required to attend periodic military-training sessions to remain
ready in the event he is called back into active duty. White has
taken periods of shortterm military leave, usually for a day or two
at a time, during which he did not receive pay from United.
Under United's collective bargaining agreement, pilots receive pay
when they take other short-term leaves of absence, such as jury
duty or sick leave. United also maintains a profit-sharing plan for
its pilots. Under the plan, pilots are credited with a share of
the company's profit based on the wages they earn over the relevant
period. Because these credits are based on wages, pilots who take
paid sick leave or paid leave for jury duty earn credit toward
their profit-sharing plan, while pilots who take short-term
military leave do not.
In January 2019, White initiated the class action against United
Continental Holdings ("UCH") and its wholly owned subsidiary,
United Airlines, Inc. ("UAL") (collectively, "United"), alleging
that United's failure to provide paid leave and profit-sharing-plan
credit to reservists on military leave denies them "rights and
benefits" that are given for comparable, nonmilitary leaves,
thereby violating USERRA.
The district court dismissed White's complaint. It rejected
White's interpretation of the statute because it feared that it
would create a de facto universal requirement that private
employers pay for military leave, contrary to the settled
understanding of the statute. In the alternative, the court held
as a matter of law that jury duty and military leave are not
comparable for the purposes of USERRA, and so the statute's
equal-benefits rule does not apply. It did not reach White's class
allegations.
White raises three issues on appeal. His first assertion is that
the continued receipt of one's wages during a leave of absence
qualifies without further ado as one of the "rights and benefits"
of employment contemplated by section 4316(b)(1). Next, he argues
that United's profit-sharing plan, which credits pilots with a
share of the company's profit based on the wages they earn over a
relevant period, also falls within the scope of section 4316(b)(1).
Finally, he contends that the district court erred in holding as a
matter of law that jury duty and military leave are not
comparable.
United responds with an alternate theory for partial affirmance: It
says that the Court must at least dismiss the claims against United
Continental Holdings, because UCH is not an "employer" within the
meaning of USERRA and so is not a proper Defendant.
As a preliminary matter, the Seventh Circuit concludes that White's
profitsharing-plan claim rises or falls with his paid-leave claim.
Both hinge on whether United's pilots are entitled to their wages
while on military leave. It therefore focuses on the question
whether paid leave counts as one of the "rights and benefits" of
employment under USERRA.
White argues that section 4303(2) defines the term "rights and
benefits" broadly, and under this definition paid leave--i.e.,
compensation at the normal rate during a leave of absence--is
included.
The Seventh Circuit agrees with him. It opines that because the
definition of "rights and benefits" under USERRA embraces paid
leave, it concludes that the district court erred in dismissing
White's paid-leave claim as a matter of law. This also means that
White is entitled to move forward with his (and the putative
class') profit-sharing claim. Although that is enough to resolve
this part of the case, the Appellate Court thinks it appropriate to
add a word or two about United's additional, extratextual
arguments.
United asks the Court to examine how White's interpretation of
"rights and benefits" interacts with related provisions of federal
law. It asserts that its reading of section 4303(2) conflicts with
a pre-USERRA statute that provides federal workers with 15 days of
paid military leave per year.
The Seventh Circuit has two responses. First, the application of
"whole code canons" rests on a shaky foundation. Appeals to
consistency with other areas of the U.S. Code--especially different
titles of the Code--represent a much greater risk of judicially
overriding legislative assumptions and policies, because
legislators and their staff are not aware of these canons or do not
easily apply them. Second, United exaggerates the inconsistency
that exists. USERRA section 4316(b)(1) sets forth an equality
principle, not a floor or a cap on benefits. And nothing in
section 6323 indicates that it functions as a cap, rather than a
floor. There is nothing incompatible between section 6323 and
USERRA.
Its conclusion that the case was ended prematurely leaves open an
important inquiry on remand. At this stage in the litigation, the
Seventh Circuit does not have enough information about the
frequency and duration of White's military-leave obligations, or
those of his fellow reservist pilots, to say much more about this.
Discovery may reveal that all, none, or only part of those
obligations are comparable to jury duty or sick leave (or other
short-term obligations) when assessed with the help of section
1002.150(b). It is a matter to be determined on remand.
United raises one last argument for partial affirmance: That White
failed plausibly to allege that one of the Defendants--United
Continental Holdings--falls within the scope of USERRA. It asks
that the suit be dismissed as to UCH, leaving UAL--UCH's wholly
owned subsidiary--as the sole Defendant.
Although the district court did not address this argument, the
Seventh Circuit may consider it because United presented it. In
support of dismissal, United cites a number of district court
decisions for the proposition that a defendant counts as a USERRA
employer only if it has the authority to "hire and fire" the
plaintiff, or it has some "control over employment opportunities"
or "employment-related responsibilities." White argues that the
complaint alleges that UCH has at least some control over
employment opportunities at United.
The Appellate Court holds that neither White nor United cites to
any circuit or Supreme Court precedent concerning this precise
question. It concludes, however, that for present purposes White
has alleged enough to keep UCH in the case. It offers some
preliminary thoughts, but on remand the district court also may
wish to consult other statutes in which this issue arises, such as
Title VII of the Civil Rights Act of 1964 and the National Labor
Relations Act.
To be clear, the Appellate Court finds that the presence of common
officers for UCH and United alone does not create liability for
UCH. But that fact, added to the allegations in the complaint of
active participation, may suggest some measure of control for
purposes of Section 4303(4)(A). Finally, it notes that White's
burden will be higher at later stages in the litigation. Discovery
may reveal facts that demonstrate that UCH exercises control over
White's employment opportunities, or it may show that UCH's role
was purely formal and unrelated to the critical issues. It holds
only that White has alleged enough to survive a motion to dismiss
UCH.
In light of the foregoing, the Seventh Circuit reversed the
judgment of the district court. It remanded the case for further
proceedings consistent with its Opinion.
A full-text copy of the Court's Feb. 3, 2021 Opinion is available
at https://tinyurl.com/1o6fnjom from Leagle.com.
UNITED STATES: Faces Racial Discrimination Class Action Lawsuit
---------------------------------------------------------------
Jamie Satterfield, writing for Knoxville News Sentinel, reports
that Isabel Zelaya and his son were busy at work inside a
slaughterhouse in Bean Station, Tennessee, when hundreds of
black-clad people with guns stormed inside -- shouting racial slurs
and ordering at gunpoint all Latino workers to stop moving.
Zelaya, legally employed at the slaughterhouse, thought they might
be "terrorists." But, as it turned out, they were a mix of federal
agents and Tennessee Highway Patrol troopers who turned up in 2018
to raid the Southeastern Provision meatpacking plant in Grainger
County.
Their behavior -- laid bare in court records -- so shocked Chief
U.S. District Judge Travis McDonough that he made a public appeal
for the U.S. Supreme Court to lift the shield of immunity granted
to federal law enforcement officers. The appeal is part of his
latest ruling in a lawsuit about the raid.
"The lesson here is that federal agents can avoid accountability
for their violations of the Constitution by simply excluding state
and local agencies from their next operation," McDonough wrote in a
Jan. 31 ruling. "Perhaps a higher court will recognize causes of
action that more directly address agents' searches and seizures
based on skin color."
If the Grainger County raid had been limited to federal agents,
Zelaya and his fellow Latino slaughterhouse workers -- seven of
whom have filed suit over the raid -- would have no right to seek
damages. Federal agents are largely legally immune -- much more so
even than local officers who often also enjoy legal protection for
bad or brutal behavior.
But, simply because the raid also involved state troopers,
McDonough opined, the claims are enough to keep some of the
lawsuit's legal claims alive and -- eventually -- headed to a
jury.
"Racial discrimination has a long history in this country,"
McDonough wrote. "But the federal judiciary is, both by design and
blemish, a less-than-perfect institution to address this history.
Courts' decisions on such issues have, at times, veiled the
nation's original sin with the laudable ideals of judicial
deference, separation of powers, and the presence of non-judicial
concerns (such as foreign policy and national security).
"Notably, of the four claims dismissed here, three are barred not
because (the workers) failed to allege illegal conduct, but because
the law provides them no pecuniary remedy for violation of their
constitutional protections," he continued.
"Were it not for THP's involvement, (the workers) would have no
access to the only recourse that can matter to them now: damages,"
the judge wrote.
'You don't have rights here'
Knox News has reviewed court records and McDonough's ruling. The
following are facts upon which both sides in this court battle
largely agree:
Zelaya was working with his son on the day of the raid. Without
warning, agents and troopers dressed in black and pointing
military-style weapons converged on the plant. They yelled at
nearly 100 Latino workers using racial slurs and ordered them to
stop work and raise their hands.
McDonough said the agents never once asked to see identification or
proof of immigration status. They ignored all white workers - none
of whom were berated, handcuffed or ordered to stay put. The agents
even allowed the white workers to smoke outside.
When a worker complained the zip ties on his wrists were too tight,
an agent responded "he had a problem with workers" because they
didn't speak English and told the worker he had no right to "tell
him what to do," McDonough wrote.
An agent put his booted foot on a Latino worker's head and pointed
a gun at him after he fell while being herded outside. When a
Latino worker asked if a pregnant co-worker could be allowed to sit
down, an agent cursed and told him to "shut his mouth."
Another agent told a worker "you don't have rights here" and called
him "Mexican (expletive)," McDonough wrote.
One worker was punched in the face. When a worker asked to use the
restroom, an agent walked him outside, put a gun to his head and
told him to "relieve himself right there, in sight of other
officers, while staring at his genitals, laughing and cursing at
him," the judge wrote.
The Latino workers were held handcuffed and at gunpoint inside vans
for an hour. An officer "who was tall and overweight and had long
blond hair down to his waist took out his phone and yelled,
'Selfie,' while taking a picture of himself with the workers," the
opinion stated.
Agents continued to berate the Latino workers on the 30-minute ride
to the Tennessee National Guard Armory, where they were taken next
-- still without any idea why.
Officers told the workers to "shut their (expletive mouths) and
that they were going back to their (expletive) (expletive)
country," court records show.
Was the raid a ploy?
Zelaya would go free after two hours of detention at the armory
when agents confirmed he was a legal migrant worker who had worked
at the slaughterhouse for years.
Zelaya, though, was one of the lucky ones. Many of his fellow
workers were locked up in immigration holding cells to await
deportation. A few wound up in jail, charged with a low-level
immigration violation known as illegal re-entry -- essentially a
law that makes it illegal to cross back into the U.S. once
officially deported. Their families were given no information about
their whereabouts or why they had been whisked away.
But this immigration raid wasn't supposed to be an immigration raid
at all, Knox News' review of court records reveals.
The Latino workers weren't supposed to be the raid's targets,
either, the news organization's review shows. These federal agents
had told a federal judge they needed a warrant to get records the
slaughterhouse's owner -- 63-year-old James Brantley -- may be
hiding. Brantley, the agents promised, was the target, suspected of
avoiding taxes.
Brantley was at the slaughterhouse during the raid. He wasn't
handcuffed or arrested. He eventually admitted dodging $2.5 million
in payroll taxes by offering some of a worker's pay in cash. His
bank had turned him in to the IRS. He was ordered to prison for 18
months in 2019. He was freed in January from a work camp in
Montgomery, Alabama.
A contingent of nonprofit immigration attorneys are now
representing Zelaya and six of his co-workers in the class-action
lawsuit. The U.S. Department of Justice is defending the
government.
An appeal of McDonough's ruling must be filed within a month. The
department has not yet responded to the ruling. [GN]
UNIVERSITY OF MICHIGAN: Ex-Pilots Join Sexual Misconduct Case
-------------------------------------------------------------
Jasmin Lee, writing for The Michigan Daily, reports that the late
University of Michigan athletic doctor Robert Anderson, against
whom allegations of sexual misconduct arose last year, has been
accused of sexually assaulting a number of pilots, the Associated
Press reported on Feb. 6. Anderson was designated by the Federal
Aviation Administration as a medical examiner in the southeast
Michigan area for nearly 40 years.
Anderson was the former team sports physician and worked at the
University from 1963 until his retirement in 2003. He passed away
in 2008. Multiple sexual misconduct allegations emerged against
Anderson following a 2018 letter from a former U-M athlete
detailing sexual harassment from Anderson during medical exams in
the 1970s. Since then, hundreds of former athletes and students
have spoken up about their experiences with Anderson.
The University is currently negotiating with Anderson survivors,
and one class action lawsuit has been filed representing hundreds
of former patients. This class action complaint seeks to prosecute
the University on behalf of all survivors.
An anonymous former pilot who still lives in Ann Arbor told The
Associated Press he received a medical exam from Anderson in 2000
in order to keep his pilot's license. The man said his encounter
with Anderson made him wary of visiting him again.
"I was only 33; I probably didn't need a prostate exam but I was
naive," the pilot said. "He examined my whole body like a
dermatologist might. It was very creepy. It was too much. I didn't
go back. . . . You're not touching me again."
Anderson had his own pay system that was not affiliated with the
FAA. When another doctor accused Anderson of violating FAA
protocols, Anderson told the FAA he believed in a "complete
examination" in a 1973 interview.
"A few have left me because they have desired less of a physical
exam than I am willing to give," Anderson said.
Former military pilot J.P. Descamp, one of the first victims to
speak out against Anderson, said in a March 2020 press conference
he was sent to Anderson by his employer, General Motors, in 1973
for a standard physical exam to continue his flight duties.
"I don't wish to go any further with graphic details, but suffice
to say, the continued probing, stimulation and painful testicular
examination left me in a state of feeling highly vulnerable and
taken advantage of," DesCamp said.
Those representing the University and the lawyers bringing the
class action suit are currently in mediation. This stage began in
October and could take months to complete.
Daily News Editor Jasmin Lee can be reached at itsshlee@umich.edu
[GN]
UNLIMITED CARRIER: Roberson Suit Seeks Unpaid Wages for Drivers
---------------------------------------------------------------
JEFFERY ROBERSON, individually and on behalf of all others
similarly situated, Plaintiff v. UNLIMITED CARRIER, INC., AGLE
EXPRESS, INC., SVAJUNAS MASIULIONIS, and ARNOLDAS BLINSTRUBAS,
Defendants, Case No. 1:21-cv-00742 (N.D. Ill., February 9, 2021) is
a class action against the Defendants for violations of the
Illinois Wage Payment and Collection Act and breach of contract by
failing to pay all wages earned, taking unlawful wage deductions,
and failing to reimburse business expenses.
Mr. Roberson is a former over-the-road driver for Unlimited Carrier
between May 2019 and July 2020.
Unlimited Carrier, Inc. is a freight delivery services company
headquartered in Bolingbrook, Illinois.
AGLE Express, Inc. is a tractor leasing services company
headquartered Homer Glen, Illinois. [BN]
The Plaintiff is represented by:
Bradley Manewith, Esq.
Marc J. Siegel, Esq.
James D. Rogers, Esq.
SIEGEL & DOLAN LTD.
150 North Wacker, Suite 3000
Chicago, IL 60606
Telephone: (312) 878-3210
Facsimile: (312) 878-3211
E-mail: msiegel@msiegellaw.com
banewith@msiegellaw.com
- and –
Hillary Schwab, Esq.
Rachel Smit, Esq.
Brant Casavant, Esq.
FAIR WORK P.C.
192 South Street, Suite 450
Boston, MA 02111
Telephone: (617) 607-3260
Facsimile: (617) 488-2261
E-mail: hillary@fairworklaw.com
rachel@fairworklaw.com
UPS STORE: Shavers Consumer Class Suit Removed to N.D. Illinois
---------------------------------------------------------------
The case styled REBA SHAVERS, individually and on behalf of all
others similarly situated v. THE UPS STORE, INC.; GENERATION I.
LLC, d/b/a UPS Store #7181 in its own right and as a representative
of a class similarly situated UPS Store franchisees; and JOHN DOES
1–200, Case No. 2020-CH-05119, was removed from the Illinois
Circuit Court of Cook County to the U.S. District Court for the
Northern District of Illinois on February 8, 2021.
The Clerk of Court for the Northern District of Illinois assigned
Case No. 1:21-cv-00720 to the proceeding.
The case arises from the Defendant's alleged violations of the
Illinois Notary Public Act and the Illinois Consumer Fraud Act, as
well as for unjust enrichment and civil conspiracy.
The UPS Store, Inc. is a franchisor of retail shipping, postal,
printing and business service centers, headquartered in San Diego,
California. [BN]
The Defendants are represented by:
John C. Ellis, Esq.
ELLIS LEGAL P.C.
200 W. Madison St., Suite 2670
Chicago, IL 60606
Telephone: (312) 967-7629
E-mail: jellis@ellislegal.com
USA TECHNOLOGIES: Purchasers Class Action Suit in PA Concluded
--------------------------------------------------------------
USA Technologies, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that the consolidated
purchasers class action suit in the United States District Court
for the Eastern District of Pennsylvania, with Docket No.
19-cv-04565, has been concluded.
On September 11, 2018, Stephane Gouet filed a putative class action
complaint against the Company, Stephen P. Herbert, the then-current
Chief Executive Officer, and Priyanka Singh, the then-current Chief
Financial Officer, in the United States District Court for the
District of New Jersey.
The class was defined as purchasers of the Company's securities
from November 9, 2017 through September 11, 2018. The complaint
alleged that the Company disclosed on September 11, 2018 that it
was unable to timely file its Annual Report on Form 10-K for the
fiscal year ended June 30, 2018 (the "2018 Form 10-K"), and that
the Audit Committee of the Company's Board of Directors was in the
process of conducting an internal investigation of current and
prior period matters relating to certain of the Company's
contractual arrangements, including the accounting treatment,
financial reporting and internal controls related to such
arrangements.
The complaint alleged that the defendants disseminated false
statements and failed to disclose material facts and engaged in
practices that operated as a fraud or deceit upon Gouet and others
similarly situated in connection with their purchases of the
Company's securities during the proposed class period.
The complaint alleged violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder.
Two additional class action complaints, containing substantially
the same factual allegations and legal claims, were filed against
the Company, Herbert and Singh in the United States District Court
for the District of New Jersey.
On September 13, 2018, David Gray filed a putative class action
complaint, and on October 3, 2018, Anthony E. Phillips filed a
putative class action complaint.
Subsequently, multiple shareholders moved to be appointed lead
plaintiff, and on December 19, 2018, the Court consolidated the
three actions, appointed a lead plaintiff, and appointed lead
counsel for the consolidated actions.
On February 28, 2019, the Court approved a Stipulation agreed to by
the parties in the Consolidated Action for the filing of an amended
complaint within fourteen days after the Company filed its 2018
Form 10-K.
On January 22, 2019, the Company and Herbert filed a motion to
transfer the Consolidated Action to the United States District
Court for the Eastern District of Pennsylvania. On February 5,
2019, the Lead Plaintiff filed its opposition to the Motion to
Transfer.
On August 12, 2019, the University of Puerto Rico Retirement System
(UPR) filed a putative class action complaint in the United States
District Court for the District of New Jersey against the Company,
Herbert, Singh, the Company's Directors at the relevant time
(Steven D. Barnhart, Joel Books, Robert L. Metzger, Albin F.
Moschner, William J. Reilly and William J. Schoch) (the Independent
Directors), and the investment banking firms who acted as
underwriters for the May 2018 follow-on public offering of the
Company: William Blair & Company; LLC; Craig-Hallum Capital Group,
LLC; Northland Securities, Inc.; and Barrington Research
Associates, Inc. (the Underwriters).
The class was defined as purchasers of the Company's shares
pursuant to the registration statement and prospectus issued in
connection with the Public Offering. Plaintiff sought to recover
damages caused by Defendants' alleged violations of the Securities
Act of 1933, and specifically Sections 11, 12 and 15 thereof.
The complaint generally sought compensatory damages, rescissory
damages and attorneys' fees and costs. The UPR complaint was
consolidated into the Consolidated Action and the UPR docket was
closed.
On September 30, 2019, the Court granted the motion to transfer and
transferred the Consolidated Action to the United States District
Court for the Eastern District of Pennsylvania, Docket No.
19-cv-04565. On November 20, 2019, Plaintiff filed an amended
complaint that asserted claims under both the 1933 Act and the 1934
Act. Defendants filed motions to dismiss on February 3, 2020.
Before briefing on the motions was completed, the parties
participated in a private mediation on February 27, 2020, which
ultimately resulted in a settlement. On May 29, 2020, the
plaintiffs filed documents with the Court seeking preliminary
approval of the settlement, with the defendants supporting approval
of the settlement.
On June 9, 2020, the Court granted preliminary approval of the
settlement and issued a scheduling order for further action on the
settlement. The settlement provides for a payment of $15.3 million
which includes all administrative costs and plaintiffs' attorneys'
fees and expenses.
The Company's insurance carriers paid approximately $12.7 million
towards the settlement and the Company paid approximately $2.6
million towards the settlement. The settlement payments were
deposited into an escrow account in July 2020. Only one putative
class member submitted an objection to the settlement.
On October 30, 2020, the Court held a hearing on the motion for
final settlement approval and granted approval. Under the
settlement, payment of plaintiffs' counsel's fees and expenses may
be distributed within three business days of approval (subject to
being returned if the settlement is reversed based on any appeal).
The deadline for filing an appeal has now passed, so final
settlement approval order is no longer at risk of being reversed or
revised on appeal and this action is completed.
USA Technologies, Inc. provides wireless networking, cashless
transactions, asset monitoring, and other value-added services in
the United States and internationally. USA Technologies, Inc. was
founded in 1992 and is headquartered in Malvern, Pennsylvania.
USA TECHNOLOGIES: Shareholder Suit in Chester County Court Stayed
-----------------------------------------------------------------
USA Technologies, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on February 5, 2021, for the
quarterly period ended December 31, 2020, that the shareholder
class action suit in the Court of Common Pleas, Chester County,
Pennsylvania, remains stayed.
A putative shareholder class action complaint was filed against the
Company, its chief executive officer and chief financial officer at
the relevant time, its directors at the relevant time, and the
Underwriters, in the Court of Common Pleas, Chester County,
Pennsylvania, Docket No. 2019-04821-MJ.
The complaint alleged violations of the 1933 Act. As also
previously reported, on September 20, 2019 the Court granted the
defendants' Petition for Stay and stayed the Chester County action
until the Consolidated Action reaches a final disposition.
On October 18, 2019, plaintiff filed an appeal to the Pennsylvania
Superior Court from the Order granting defendants' Petition for
Stay, Docket No. 3100 EDA 2019.
On December 6, 2019, the Pennsylvania Superior Court issued an
Order stating that the Stay Order does not appear to be final or
otherwise appealable and directed plaintiff to show cause as to the
basis of the Pennsylvania Superior Court's jurisdiction. The
plaintiff filed a Response to the Order to Show Cause on December
16, 2019, and the defendants filed an Application to Quash Appeal
on December 26, 2019.
On February 20, 2020, the Pennsylvania Superior Court quashed the
appeal.
This action has remained stayed pending final disposition of the
Consolidated Action.
The Company expects that this action will be dismissed, but there
can be no guarantee as to the outcome.
USA Technologies, Inc. provides wireless networking, cashless
transactions, asset monitoring, and other value-added services in
the United States and internationally. USA Technologies, Inc. was
founded in 1992 and is headquartered in Malvern, Pennsylvania.
VMS DATA: Rojas Sues Over Unpaid Overtime for Sales Associates
--------------------------------------------------------------
HENRY ROJAS, individually and on behalf of all others similarly
situated, Plaintiff v. VMS DATA, LLC, GERALD ANDREW GILBY and JANE
DOE GILBY, Defendants, Case No. 2:21-cv-00220-SMB (D. Ariz.,
February 9, 2021) is a class action against the Defendants for
violations of the Fair Labor Standards Act by failing to compensate
the Plaintiff and all others similarly situated inside sales
associates overtime pay for all hours worked in excess of 40 hours
in a workweek.
Mr. Rojas was employed as inside sales associate by the Defendants
from approximately September 1, 2016 through approximately December
31, 2019.
VMS Data, LLC is an Internet marketing service provider based in
Phoenix, Arizona. [BN]
The Plaintiff is represented by:
Clifford P. Bendau, II, Esq.
Christopher J. Bendau, Esq.
BENDAU & BENDAU PLLC
P.O. Box 97066
Phoenix, AZ 85018
Telephone: (480) 382-5176
Facsimile: (480) 304-3805
E-mail: cliffordbendau@bendaulaw.com
chris@bendaulaw.com
WALGREENS BOOTS: Court Tosses 1st Amended Complaint in Smith Suit
-----------------------------------------------------------------
In the case, SUSAN SMITH, Plaintiff v. WALGREENS BOOTS ALLIANCE,
INC., et al., Defendants, Case No. 20-cv-05451-CRB (N.D. Cal.),
Judge Charles R. Breyer of the U.S. District Court for the Northern
District of California granted Costco's Motion to Dismiss the first
amended complaint, and Walgreens' Motions to Dismiss the FAC.
Before the Court is a putative class action brought on behalf of
chronic pain patients against two sets of pharmacies in connection
with the pharmacies' distribution of opioid drugs. The case is a
companion to City and County of San Francisco, et al. v. Purdue
Pharma L.P., et al., No. 3:18-cv-07591-CRB.
In Purdue, the Court held that the Controlled Substances Act
("CSA") imposes a duty upon distributors of opioids to "identify,
report, and refrain" from filling suspicious opioid orders. The
Court found that entities in the opioids stream-of-commerce are
obligated to "provide effective controls and procedures to guard
against theft and diversion of controlled substances."
The Purdue litigation seeks to hold opioids manufacturers and
distributors accountable for not doing enough to stem the illicit
opioids economy. In the instant case, the Plaintiff argues that
Walgreens Boots Alliance, Inc. ("WBA"), WAGDCO, LLC ("WAGDCO"),
Costco Wholesale Corp., and Does 1-10, have gone too far in their
efforts to prevent the unlawful sale of opioids. The Plaintiff
alleges that the Defendants have indeed violated federal
discrimination statutes and California law by interfering with the
class' access to opioids.
It is by now well-known that the United States has been suffering
from an opioid crisis for decades. Toward the mid-2000s, public
health officials became alarmed by increasing opioid fatalities,
setting off a chain reaction in public health policy, government
enforcement actions, and civil litigation. Simultaneously, the
United States has been dealing with another crisis: the chronic
pain epidemic. According to the Centers for Disease Control
("CDC"), in 2016 alone, an estimated 50 million Americans suffered
from chronic pain. In addition to high levels of daily pain,
people with chronic pain often suffer from depression and anxiety
and commit suicide at a higher rate than the general population.
In the 2010s, the CDC and the American Medical Association ("AMA")
each began to publish guidelines around properly prescribing
opioids. CDC Guideline Recommendations 5 and 6 (issued in 2016)
are particularly relevant in the case. Later, both the CDC and the
AMA would disavow these 2016 Opioid Prescribing Guidelines,
acknowledging they have led to poor outcomes for certain patients
in need of opioid medication. Named Plaintiff Smith is one of
these patients.
The Plaintiff filed a putative class action on Aug. 6, 2020,
alleging that the prescription fulfillment practices of Walgreens
and Costco discriminate on the basis of disability.
Mrs. Smith does not believe that she is alone. She seeks to
represent a class of similarly situated individuals also allegedly
harmed by pharmacists at Walgreens and Costco.
The putative class consists of persons: Who were issued
prescriptions for opioid medication by a licensed medical provider
as part of medical treatment for (i) chronic pain, defined as pain
lasting 3 or more months, from any cause, (ii) pain associated with
a cancer diagnosis or treatment, (iii) palliative or nursing home
care or (iv) sickle cell anemia and were either (a) unable to get
any such prescription(s) filled, (b) unable to get any such
prescription(s) filled as written, (c) required to submit
non-opioid prescriptions or purchase other products in conjunction
with their opioid prescription(s) or (d) told that their
prescriptions for opioid medication would no longer be filled or no
longer be filled as written at any pharmacy owned, controlled
and/or operated by the Defendants in The United States.
On Sept. 14, 2020, the Plaintiff filed her FAC, bringing suit under
the Americans with Disabilities Act, Section 504 of the
Rehabilitation Act of 1973, the Anti-Discrimination Provisions of
the Affordable Care Act, the Unruh Civil Rights Act, and
California's Unfair Competition Law.
In response, on Nov. 20, 2020, the Defendants filed three motions
to dismiss: (1) a motion to dismiss for lack of personal
jurisdiction filed by WBA; (2) a motion to dismiss for failure to
state a claim filed by Walgreens; and (3) a motion to dismiss for
failure to state a claim and for lack of Article III standing filed
by Costco.
The Plaintiff filed individual responses to each; and the
Defendants filed their replies roughly two weeks later. The Court
held a hearing on the motions to dismiss on Jan. 28, 2021.
To bolster her claim, the Plaintiff argues that Walgreens' alleged
policy only applies to disabled persons. But, based on the FAC, it
is not clear that either of the groups who fill opioid
prescriptions at the Defendants' pharmacies—chronic pain
prescribers and acute pain prescribers -- are "disabled" under
federal law. At best, then, the Plaintiff has alleged the at-issue
policies apply to both non-disabled (acute pain prescribers) and
disabled groups (chronic pain prescribers) alike (i.e., they are
"facially neutral" policies). The Plaintiff is left leaning on two
theories of discrimination: (1) a disparate impact theory that
proceeds under the "meaningful access" standard espoused in
Alexander v. Choate, 469 U.S. 287, 308-09 (1985); and (2) a
"reasonable accommodation" theory brought under the ADA. She has
not stated a claim for relief under either theory.
After careful consideration of the parties' filings and oral
arguments, and the applicable law, Judge Breyer concludes that the
FAC is riddled with contradictions and inadequacies. Given the
facts alleged, it is uncertain at this stage whether the putative
class itself is "disabled" under federal law. Moreover, only one
policy allegation could possibly constitute discrimination under
federal law under a disparate impact or reasonable accommodation
theory: Walgreens' alleged "dose and duration" restriction.
However, even this single suspect policy allegation appears
implausible based on the facts pled in the FAC.
There being no possibility of discrimination based on the alleged
policy of declining to sell opioids, Judge Breyer granted Costco's
Motion to Dismiss, and the claims against Costco are dismissed with
prejudice. Walgreens' Motions to Dismiss are also granted, and the
claims against Walgreens are dismissed without prejudice.
The Plaintiff may amend the FAC within 30 days of the order, if she
wishes to do so, to address the deficiencies as to (1) a disparate
impact basis for lack of meaningful access and (2) a reasonable
accommodation theory only. At this point, Judge Breyer will not
address the outstanding jurisdictional arguments regarding
jurisdiction contained in WBA's Motion to Dismiss. In the event
that the Plaintiff amends the FAC to state a plausible claim of
discrimination against Walgreens, he will address WBA's
jurisdictional arguments at that time.
A full-text copy of the Court's Feb. 3, 2021 Order is available at
https://tinyurl.com/2832hrja from Leagle.com.
WASHINGTON BULB: Williams Files ADA Suit in S.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against Washington Bulb
Company, Inc. The case is styled as Milton Williams, on behalf of
himself and all other persons similarly situated v. Washington Bulb
Company, Inc., Case No. 1:21-cv-01262 (S.D.N.Y., Feb. 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Washington Bulb Co., Inc. -- https://www.tulips.com/ -- is one of
the largest domestic growers of cut tulips, daffodils, iris and
lilies flowers and their bulbs, located in Mount Vernon,
Washington.[BN]
The Plaintiff is represented by:
Michael A. LaBollita, Esq.
GOTTLIEB & ASSOCIATES
150 E. 18th Street, Suite Phr
New York, NY 10003
Phone: (212) 228-9795
Email: michael@gottlieb.legal
WEST TOWN: Somervlele Suit Gets Class, Subclasses Certification
---------------------------------------------------------------
In the class action lawsuit captioned as JOSEPH AND KAREN
SOMERVLELE, et al., v. WEST TOWN BANK & TRUST, Case No.
8:19-cv-00490-PJM D (D. Md.), the Hon. Judge Peter Messitte entered
an order:
1. granting the Plaintiffs' motion for class certification:
-- The following West Town Class and Racketeer Influenced
and Corrupt Organizations Act (RICO) and Real Estate
Settlement Procedures Act (RESPA) Subclasses are
certified under Rule of the Federal Rules of Civil
Procedure:
"all individuals in the United States who were
borrowers on a mortgage loan obtained from West Town
Bank & Trust, a/k/a West Town Savings Bank, for which
All Star Title, Inc. provided a settlement service, as
identified in Section 1100 on the borrower’s HUD-1,
between January 1, 2010 and December 31, 2015;"
Exempted from this class is any person who, during the
period of January 1, 2010 through December 31, 2015,
was an employee, officer, member and/or agent of West
Town Bank & Trust, a/k/a West Town Savings Bank., or
All Star Title, Inc;
-- The RICO Subclass is comprised of all members of the
West Town Class.
-- The RESPA Subclass is comprised of all members of the
West Town Class who were borrowers on a federally
related mortgage loan (as defined under the Real Estate
Settlement Procedures Act, 12 U.S.C. section 2602)
between January 1, 2010 and December 31, 2015.
2. appointing the Plaintiffs John and Karen Somerville as
representatives of the West Town Class, RICO Subclass, and
RESPA Subclass;
3. appointing the Plaintiff Randolph Whitley as
representative of the West Town Class, RICO Subclass, and
RESPA Subclass;
4. appointing the Plaintiffs Mark and Susan Kline as
representatives of the West Town Class, RICO Subclass,
and RESPA Subclass;
5. appointing the Plaintiffs David and Janie McCranie as
representatives of the West Town Class, RICO Subclass, and
RESPA Subclass;
6. appointing Michael Smith and Melissa English, of Smith
Gildea & Schmidt LLC, and Timothy Maloney and Veronica
Nannis, of Joseph, Greenwald & Laake PA, as Class Counsel;
and
7. directing the parties to confer and submit to the Court a
proposed form of Notice to the Class no later than 30 days
from entry of this Order.
West Town Bank offers a variety of financial services including
checking, savings, loans and mortgages.
A copy of the Court's order dated Feb. 4, 2020 is available from
PacerMonitor.com at https://bit.ly/2ZaJbYg at no extra charge.[CC]
WESTCHESTER PARKWAY: Fails to Pay Nurses' Proper Wages, Edgar Says
------------------------------------------------------------------
JAMES EDGAR, individually and on behalf of all others similarly
situated, Plaintiff v. WESTCHESTER PARKWAY CONSULTING LLC dba
SOLIVITA HEALTH; CROCKER ROAD CONSULTING LLC dba SOLIVITA HEALTH;
PGN OP SUMMIT LLC; PGN OP PARK LLC; PGN OP OAK LLC; PGN OP ECHO
LLC; PGN MGMT SUMMIT LLC; PGN MGMT PARK LLC; PGN MGMT OAK LLC; PGN
MGMT ECHO LLC; JOHN DOE CORPORATIONS 1-10, Defendants, Case No.
2:21-cv-00533-MHW-KAJ (S.D. Ohio, Feb. 4, 2021) seeks to recover
from the Defendants unpaid wages and overtime compensation,
interest, liquidated damages, attorneys' fees, and costs under the
Fair Labor Standards Act.
Plaintiff Edgar was employed by the Defendants as nurse.
Westchester Parkway Consulting LLC dba Solivita Health provides
health care services. [BN]
The Plaintiff is represented by:
Matthew J.P. Coffman, Esq.
Adam C. Gedling, Esq.
Kelsie N, Hendren, Esq.
COFFMAN LEGAL, LLC
1550 Old Henderson Road, Suite 126
Columbus, OH 43220
Telephone: (614) 949-1181
Facsimile: (614) 386-9964
E-mail: mcoffman@mcoffmanlegal.com
agedling@mcoffmanlegal.com
khendren@mcoffmanlegal.com
WHOLE FOODS: Claims in Campbell First Amended Complaint Narrowed
----------------------------------------------------------------
In the class action lawsuit captioned as CHANDRA CAMPBELL,
individually and on behalf of all others similarly situated, v.
WHOLE FOODS MARKET GROUP, INC., Case No. 1:20-cv-01291-GHW-OTW
(S.D.N.Y.), the Hon. Judge Gregory H. Woods entered an order
granting in part and denying in part the Defendant's motion to
dismiss the First Amended Complaint as follows:
-- The Defendant's motion to dismiss the Plaintiff's claims
under Sections 349 and 350 of the GBL is denied;
-- The Defendant's motion to dismiss all other claims is
granted;
-- The Plaintiff lacks standing to pursue injunctive relief
on behalf of herself or the putative class, so Defendant's
motion to dismiss her request for injunctive relief is
also granted;
-- The Plaintiff is granted leave to replead the claims that
have been dismissed by the Court; and
-- Any amended complaint must be filed no later than twenty-
one days from the date of this order.
The Plaintiff Chandra Campbell bought a box of honey graham
crackers at Whole Foods. Ms. Campbell knew something that some
customers buying graham crackers may not -- "graham" refers to a
type of whole-wheat flour. So when she saw a box at Whole Foods
touting "Honey Graham Crackers," she understood that the crackers
were made mostly of healthy whole-wheat flour, rather than regular
white or "refined" flour. And she thought that they were sweetened
predominantly with wholesome natural honey, rather than sugar or
some other sweetener. But they are not. Ms.
Campbell alleges that she was deceived by the product's packaging
(notwithstanding the fact that the ingredient label accurately
described the crackers' content). She brings this lawsuit as a
result.
Whole Foods "manufactures, distributes, markets, labels and sells
graham crackers." The packaging for the product describes the
product in a number of ways that Plaintiff alleges to be
deceptive.
A copy of the Court's order dated Feb. 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3d3FxaI at no extra charge.[CC]
WILMINGTON SAVINGS: Antonio Sues Over Car Repossession Practices
----------------------------------------------------------------
JOHANNA L. ANTONIO, individually and on behalf of all others
similarly situated v. WILMINGTON SAVINGS FUND SOCIETY, FSB,
successor-by-merger to Beneficial Bank, d/b/a WSFS, Case No.
210200301 (Pa. Com. Pleas Ct., Feb. 2, 2021), is a consumer class
action brought against a bank to redress repossession practices of
the Defendant.
According to the complaint, when the Defendant believes that a
consumer has defaulted on a secured vehicle loan, it repossesses
and then resells the vehicle. In the course of so doing, the
Defendant failed to adhere to the requirements of Pennsylvania
law.
Defendant WSFS is the vehicle lender or assignee of multiple Retail
Installment Contracts or motor vehicle loans with Pennsylvania
consumers, including financing acquired by virtue of the merger of
Beneficial Bank with and into WSFS.
WSFS, individually and as the successor-by-merger to Beneficial
Bank, is the holder of the Retail Installment Sales Contracts or
consumer motor vehicle loans at issue in this Complaint, and is
responsible for the alleged action and/or inaction of Beneficial
Bank.
The Plaintiff is a consumer and an adult individual who resides at
2 Diamond Court, Pottstown, Pennsylvania.
According to the complaint, on October 25, 2013, the Plaintiff
purchased and financed a used 2012 Mazda from a car dealer. The
transaction is reflected in a Motor Vehicle Retail Installment Sale
Contract (RISC). The purchase was financed through Beneficial, who
took a security interest in the vehicle. Under the RISC, regularly
monthly payments were to be made to Beneficial. The Plaintiff fell
behind in her payments to Beneficial. In October 2015, Beneficial
declared a default. On October 16, 2015, Beneficial, as the lender
and secured party, repossessed the Plaintiff's automobile, or
ordered it to be repossessed.
WSFS is Delaware financial institution that regularly does business
in Pennsylvania, and is registered with and licensed by the
Pennsylvania Department of Banking. WSFS is the
successor-by-merger to Beneficial Bank which merged with and into
WSFS on or about March 1, 2019 by virtue of a merger agreement. As
such, the assets and liabilities of Beneficial -- including the
Retail Installment Sales Contracts and consumer auto loans at issue
in this case and the benefits and liabilities therefrom -- were
acquired by WSFS.[BN]
The Plaintiff is represented by:
Cary L. Flitter, Esq.
Andrew M. Milz, Esq.
Jody Thomas Lopez-Jacobs, Esq.
FLITTER MILZ, P.C.
450 North Narberth Avenue, Suite 101
Narberth, PA 19072
Telephone: (610) 822-0782
WILMINGTON SAVINGS: Marvastian Sues Over Debt Collection Practices
------------------------------------------------------------------
SEYED MARVASTIAN, Individually and on behalf others similarly
situated v. WILMINGTON SAVINGS FUND SOCIETY, FSB AS TRUSTEE FOR
HILLDALE TRUST, Case No. 8:21-cv-00257-PJM (D. Md., Jan. 29, 2021)
seeks to secure redress for Hilldale's course of conduct that
included:
i. entering into an agreement(s) with a debt collector and
collection agency Dyck-O'Neal ("DONI"), Incorporated to
purportedly assign consumer debts, including Marvastian's
purported consumer debt, to DONI unconditionally but in
fact Hilldale retains undisclosed ownership rights to the
debts which are unfairly and unconscionably concealed from
consumers subject to the purported debts; and
ii. claiming to others that Marvastian and others similarly
situated owed sums of money to them in assignments of
consumer debts which were not owed.
The Defendant's conduct subject to this action violates the Fair
Debt Collection Practices Act. The Plaintiffs contends that
Hilldale's pattern, practices, acts, and omissions has wrongfully
infected his remedial rights and that of similarly situated persons
and caused injury them.
Plaintiff Marvastian is an individual who is a resident of and is
domiciled in the State of Maryland. Marvastian used to be the owner
of the real property known as 7809 Bradly Blvd., Bethesda, Maryland
20817 (Former Marvastian Property) but lost that home to
foreclosure in an action in the Circuit Court for Montgomery
County, Maryland (i.e. Case No. 396663V). When he acquired the
Former Marvastian Property, Marvastian borrowed a sum of money from
a now-defunct mortgage lender Freedom Mortgage Funding, Inc.
("Former Marvastian Loan") and used the proceeds for personal,
consumer purposes to acquire the Former Marvastian Property.
Hilldale is a statutory trust formed under the laws of the State of
Delaware for the specific purpose of acquiring defaulted consumer
debts from others. Wilmington Savings Fund Society, FSB acts as a
trustee of Hilldale but does not control or manage Hilldale
whatsoever and Hilldale is controlled, the complaint says.[BN]
The Plaintiff is represented by:
Phillip R. Robinson, Esq.
CONSUMER LAW CENTER LLC
8737 Colesville Road, Suite 308
Silver Spring, MD 20910
Telephone: (301) 448-1304
E-mail: phillip@marylandconsumer.com
WILSHIRE ROYALE: Garcia Sues Over Hotel Booking's Violation of ADA
------------------------------------------------------------------
ORLANDO GARCIA, individually and on behalf of all others similarly
situated, Plaintiff v. WILSHIRE ROYALE HOTEL and DOES 1-10,
Defendant, Case No. 21BBCV00115 (Cal. Super., Los Angeles Cty.,
February 8, 2021) is a class action against the Defendant for
violations of the Americans with Disabilities Act and the Unruh
Civil Rights Act.
The case arises from the Defendant's failure to provide information
about the accessible features in the rooms at the Coast Anabelle
Hotel on its reservation Website at https://coastanabelle.com/ for
people with disabilities, including the Plaintiff. The Website
reservation system lacks sufficient information needed by disabled
travelers to assess independently whether a given hotel room would
work for them. As a result, the Plaintiff is unable to engage in an
online booking of the hotel room with any confidence or knowledge
about whether the room will actually work for him due to his
disability, the suit says.
Wilshire Royale Hotel is an owner and operator of the Coast
Anabelle Hotel located at 2011 W. Olive Ave., Burbank, California.
[BN]
The Plaintiff is represented by:
Raymond Ballister Jr., Esq.
Russell Handy, Esq.
Amanda Seabock, Esq.
Zachary Best, Esq.
CENTER FOR DISABILITY ACCESS
8033 Linda Vista Road, Suite 200
San Diego, CA 92111
Telephone: (858) 375-7385
Facsimile: (888) 422-5191
E-mail: amandas@potterhandy.com
WORLD WRESTLING: Awaits Preliminary Approval of Settlement
----------------------------------------------------------
World Wrestling Entertainment, Inc. said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on February
4, 2021, for the fiscal year ended December 31, 2020, that the
parties in Firefighters' Pension System of the City of Kansas City,
Missouri suit, awaits the court's approval on the lead plaintiffs
unopposed motion for preliminary approval of settlement with the
Court.
On March 6, 2020, the Company along with its Chairman and CEO,
Vince McMahon, and former-WWE officers and directors, Michelle
Wilson and George Barrios (collectively, the "Individual
Defendants"), were sued in the U.S. District Court for the Southern
District of New York in a case captioned City of Warren Police and
Fire Retirement System, individually and on behalf of all others
similarly situated, v. World Wrestling Entertainment, Inc., Vincent
K. McMahon, George A. Barrios, and Michelle D. Wilson, No.
1:20-cv-02031-JSR.
The complaint alleges that the Company and the Individual
Defendants made materially false and misleading statements in
violation of the Securities Exchange Act of 1934 regarding WWE's
strategic relationship with the Kingdom of Saudi Arabia.
Specifically, the complaint alleges that various public statements
made by the Company and the Individual Defendants were false and
misleading because they failed to disclose certain adverse facts
regarding WWE's strategic relationship with Saudi Arabia that
supposedly was known by them and, as a result, the plaintiff class
allegedly purchased WWE stock at artificially inflated prices.
On March 12, 2020 a nearly-identical lawsuit was filed in the U.S.
District Court for the Southern District of New York captioned Paul
Szaniawski, individually and on behalf of all others similarly
situated, v. World Wrestling Entertainment, Inc., Vincent K.
McMahon, George A. Barrios, and Michelle D. Wilson, No.
1:20-cv-02223-JSR.
This lawsuit was filed as related to the City of Warren case and
was assigned to the same judge handling the City of Warren case. By
Order dated May 12, 2020, the City of Warren and Szaniawski
lawsuits were consolidated for all purposes.
After multiple parties filed motions to be appointed lead plaintiff
for the putative class in the consolidated action, on May 22, 2020,
the Court issued a memorandum order selecting the Firefighters'
Pension System of the City of Kansas City, Missouri to be lead
plaintiff and their attorneys, Labaton Sucharow LLP, to be lead
counsel for the putative class.
On May 26, 2020, the Company served Rule 11 motion for sanctions on
the attorneys for the City of Warren Police and Fire Retirement
System, the attorneys for Paul Szaniawski, and Labaton Sucharow
LLP.
The Rule 11 motion identified false allegations in the originally
filed complaints and was supported by six declarations from Company
executives and third-parties with direct first-hand knowledge of
the matters at issue. Following service of the Rule 11 motion, the
attorneys for the City of Warren Police and Fire Retirement System
and the attorneys for Paul Szaniawski voluntarily dismissed their
complaints before the expiration of the Rule 11 safe-harbor period.
On June 8, 2020, the Firefighters' Pension System of the City of
Kansas City, Missouri filed a consolidated amended class action
complaint. On June 26, 2020, the Company moved to dismiss the
consolidated amended complaint in its entirety. The Court held oral
argument on the Company's motion to dismiss on July 30, 2020. On
August 6, 2020, the Court denied the Company's motion to dismiss.
On August 19, 2020, the Court issued a case management plan that,
among other things, scheduled this case to be trial ready on
February 22, 2021. On November 18, 2020, the Company entered into a
term sheet to settle this action, subject to notice to the class
and preliminary and final approval by the Court.
The settlement will include a full release of all Defendants in
connection with the allegations made in the lawsuit, and will not
contain any admission of liability or admission as to the validity
or truth of any or all allegations or claims by any of the
Defendants.
The Term Sheet provides for a settlement payment, subject to Court
approval, of $39,000 (inclusive of all Plaintiffs' attorneys fees
and expenses and settlement costs), all of which the Company
expects will be paid by the Company's insurance carriers.
The Company believes that resolving the matter is the right
business decision and that it is prudent to end the protracted and
uncertain class action process.
On December 23, 2020, lead plaintiff filed an unopposed motion for
preliminary approval of the settlement with the Court.
World Wrestling Entertainment, Inc., an integrated media and
entertainment company, engages in the sports entertainment business
in North America, Europe, the Middle East, Africa, the Asia
Pacific, and Latin America. It operates in three segments: Media,
Live Events, and Consumer Products. The company was founded in 1980
and is headquartered in Stamford, Connecticut.
WORLD WRESTLING: Continues to Defend Wrestlers' Class Suits
-----------------------------------------------------------
World Wrestling Entertainment, Inc. said in its Form 10-K report
filed with the U.S. Securities and Exchange Commission on February
4, 2021, for the fiscal year ended December 31, 2020, that the
company continues to defend several class action suits initiated by
its wrestlers.
On October 23, 2014, a lawsuit was filed in the U. S. District
Court for the District of Oregon, entitled William Albert Haynes
III, on behalf of himself and others similarly situated, v. World
Wrestling Entertainment, Inc. This complaint was amended on January
30, 2015 and alleged that the Company ignored, downplayed, and/or
failed to disclose the risks associated with traumatic brain
injuries suffered by WWE's performers and sought class action
status.
On March 31, 2015, the Company filed a motion to dismiss the first
amended class action complaint in its entirety or, if not
dismissed, to transfer the lawsuit to the U.S. District Court for
the District of Connecticut.
Without addressing the merits of the Company's motion to dismiss,
the Court transferred the case to Connecticut on June 25, 2015. The
plaintiffs filed an objection to such transfer, which was denied on
July 27, 2015.
On January 16, 2015, a second lawsuit was filed in the U.S.
District Court for the Eastern District of Pennsylvania, entitled
Evan Singleton and Vito LoGrasso, individually and on behalf of all
others similarly situated, v. World Wrestling Entertainment, Inc.,
alleging many of the same allegations as Haynes.
On February 27, 2015, the Company moved to transfer venue to the
U.S. District Court for the District of Connecticut due to
forum-selection clauses in the contracts between WWE and the
plaintiffs and that motion was granted on March 23, 2015.
The plaintiffs filed an amended complaint on May 22, 2015 and,
following a scheduling conference in which the court ordered the
plaintiffs to cure various pleading deficiencies, the plaintiffs
filed a second amended complaint on June 15, 2015. On June 29,
2015, WWE moved to dismiss the second amended complaint in its
entirety.
On April 9, 2015, a third lawsuit was filed in the U. S. District
Court for the Central District of California, entitled Russ
McCullough, a/k/a "Big Russ McCullough," Ryan Sakoda, and Matthew
R. Wiese a/k/a "Luther Reigns," individually and on behalf of all
others similarly situated, v. World Wrestling Entertainment, Inc.,
asserting similar allegations to Haynes.
The Company again moved to transfer the lawsuit to Connecticut due
to forum-selection clauses in the contracts between WWE and the
plaintiffs, which the California court granted on July 10, 2015.
On September 21, 2015, the plaintiffs' amended this complaint, and,
on November 16, 2015, the Company moved to dismiss the amended
complaint.
Each of these suits sought unspecified actual, compensatory and
punitive damages and injunctive relief, including ordering medical
monitoring.
The Haynes and McCullough cases purport to be class actions.
On February 18, 2015, a lawsuit was filed in Tennessee state court
and subsequently removed to the U.S. District Court for the Western
District of Tennessee, entitled Cassandra Frazier, individually and
as next of kin to her deceased husband, Nelson Lee Frazier, Jr.,
and as personal representative of the Estate of Nelson Lee Frazier,
Jr. Deceased, v. World Wrestling Entertainment, Inc.
A similar suit was filed in the U. S. District Court for the
Northern District of Texas entitled Michelle James, as mother and
next friend of Matthew Osborne, minor child, and Teagan Osborne, a
minor child v. World Wrestling Entertainment, Inc.
These lawsuits contain many of the same allegations as the other
lawsuits alleging traumatic brain injuries and further allege that
the injuries contributed to these former talents' deaths. WWE moved
to transfer the Frazier and Osborne lawsuits to the U.S. District
Court for the District of Connecticut based on forum-selection
clauses in the decedents' contracts with WWE, which motions were
granted by the respective courts.
On November 23, 2015, amended complaints were filed in Frazier and
Osborne, which the Company moved to dismiss on December 16, 2015
and December 21, 2015, respectively.
On November 10, 2016, the Court granted the Company's motions to
dismiss the Frazier and Osborne lawsuits in their entirety.
On June 29, 2015, the Company filed a declaratory judgment action
in the U. S. District Court for the District of Connecticut
entitled World Wrestling Entertainment, Inc. v. Robert Windham,
Thomas Billington, James Ware, Oreal Perras and various John and
Jane Does seeking a declaration against these former performers
that their threatened claims related to alleged traumatic brain
injuries and/or other tort claims are time-barred.
On September 21, 2015, the defendants filed a motion to dismiss
this complaint, which the Company opposed. The Court previously
ordered a stay of discovery in all cases pending decisions on the
motions to dismiss. On January 15, 2016, the Court partially
lifted the stay and permitted discovery only on three issues in the
case involving Singleton and LoGrasso.
Such discovery was completed by June 1, 2016. On March 21, 2016,
the Court issued a memorandum of decision granting in part and
denying in part the Company's motions to dismiss the Haynes,
Singleton/LoGrasso, and McCullough lawsuits.
The Court granted the Company's motions to dismiss the Haynes and
McCullough lawsuits in their entirety and granted the Company's
motion to dismiss all claims in the Singleton/LoGrasso lawsuit
except for the claim of fraud by omission. On March 22, 2016, the
Court issued an order dismissing the Windham lawsuit based on the
Court's memorandum of decision on the motions to dismiss.
On April 4, 2016, the Company filed a motion for reconsideration
with respect to the Court's decision not to dismiss the fraud by
omission claim in the Singleton/LoGrasso lawsuit and, on April 5,
2016, the Company filed a motion for reconsideration with respect
to the Court dismissal of the Windham lawsuit.
On July 21, 2016, the Court denied the Company's motion in the
Singleton/LoGrasso lawsuit and granted in part the Company's motion
in the Windham lawsuit. On April 20, 2016, the plaintiffs filed
notices of appeal of the Haynes and McCullough lawsuits.
On April 27, 2016, the Company moved to dismiss the appeals for
lack of appellate jurisdiction, which motions were granted, and the
appeals were dismissed with leave to appeal upon the resolution of
all of the consolidated cases. The Company filed a motion for
summary judgment on the sole remaining claim in the
Singleton/LoGrasso lawsuit, which was granted on March 28, 2018.
The Company also filed a motion for judgment on the pleadings
against the Windham defendants.
Lastly, on July 18, 2016, a lawsuit was filed in the U.S. District
Court for the District of Connecticut, entitled Joseph M.
Laurinaitis, et al. vs. World Wrestling Entertainment, Inc. and
Vincent K. McMahon, individually and as the trustee of certain
trusts.
This lawsuit contains many of the same allegations as the other
lawsuits alleging traumatic brain injuries and further alleges,
among other things, that the plaintiffs were misclassified as
independent contractors rather than employees denying them, among
other things, rights and benefits under the Occupational Safety and
Health Act (OSHA), the National Labor Relations Act (NLRA), the
Family and Medical Leave Act (FMLA), federal tax law, and various
state Worker's Compensation laws.
This lawsuit also alleges that the booking contracts and other
agreements between the plaintiffs and the Company are
unconscionable and should be declared void, entitling the
plaintiffs to certain damages relating to the Company's use of
their intellectual property.
The lawsuit alleges claims for violation of The Racketeer
Influenced and Corrupt Organizations (RICO), unjust enrichment, and
an accounting against Mr. McMahon. The Company and Mr. McMahon
moved to dismiss and for sanctions with respect to this complaint
on October 19, 2016.
On November 9, 2016, the Laurinaitis plaintiffs filed an amended
complaint. On December 23, 2016, the Company and Mr. McMahon moved
to dismiss and for sanctions with respect to the amended complaint.
On September 29, 2017, the Court issued an order on the motion to
dismiss pending in the Laurinaitis case and on the motion for
judgment on the pleadings pending in the Windham case.
The Court reserved judgment on the pending motions and ordered that
within thirty-five (35) days of the date of the order the
Laurinaitis plaintiffs and the Windham defendants file amended
pleadings that comply with the Federal Rules of Civil Procedure.
The Court further ordered that each of the Laurinaitis plaintiffs
and the Windham defendants submit to the Court for in camera review
affidavits signed and sworn under penalty of perjury setting forth
facts within each plaintiff's or declaratory judgment-defendant's
personal knowledge that form the factual basis of their claim or
defense.
On November 3, 2017, the Laurinaitis plaintiffs filed a second
amended complaint. The Company and Mr. McMahon believe that the
second amended complaint failed to comply with the Court's
September 29, 2017 order and otherwise remained legally defective
for all of the reasons set forth in their motion to dismiss the
amended complaint. Also on November 3, 2017, the Windham defendants
filed a second answer.
On November 17, 2017, the Company and Mr. McMahon filed a response
that, among other things, urged the Court to grant the motion for
judgment on the pleadings against the Windham defendants and
dismiss the Laurinaitis plaintiffs' complaint with prejudice and
award sanctions against the Laurinaitis plaintiffs' counsel because
the amended pleadings failed to comply with the Court's September
29, 2017 order and the Federal Rules of Civil Procedure.
On September 17, 2018, the Court granted the motion to dismiss
filed by the Company and Mr. McMahon in the Laurinaitis case in its
entirety, awarded sanctions against the Laurinaitis plaintiffs'
counsel, and granted the Company's motion for judgment on the
pleadings against the Windham defendants. The plaintiffs attempted
to appeal these decisions.
On November 16, 2018, the Company moved to dismiss all of the
appeals, except for the appeal of the dismissal of the Laurinaitis
case, for being filed untimely.
On April 4, 2019, the Second Circuit issued an order referring the
Company's motions to dismiss to the panel that was going to
determine the merits of the appeals. The plaintiffs-appellants'
opening brief was filed on July 8, 2019. The Company and Mr.
McMahon filed their appellees' brief on October 7, 2019. The
plaintiffs-appellants filed a reply brief on October 28, 2019. The
Second Circuit held oral argument on June 5, 2020.
On September 9, 2020, the Second Circuit issued a summary order,
dismissing the appeals of the sanctions orders and the merits
appeals of the dismissal of all claims in the Haynes, McCullough,
Frazier, and Singleton cases for lack of appellate jurisdiction and
affirming the judgment of the district court on all other claims.
On September 23, 2020, the plaintiffs-appellants filed a petition
for rehearing/rehearing en banc, which was denied on October 15,
2020.
World Wrestling Entertainment said, "The Company believes all
claims and threatened claims against the Company in these various
lawsuits were prompted by the same plaintiffs' lawyer and that all
are without merit. The Company intends to continue to defend itself
against any further attempt to appeal these decisions vigorously."
World Wrestling Entertainment, Inc., an integrated media and
entertainment company, engages in the sports entertainment business
in North America, Europe, the Middle East, Africa, the Asia
Pacific, and Latin America. It operates in three segments: Media,
Live Events, and Consumer Products. The company was founded in 1980
and is headquartered in Stamford, Connecticut.
YAMAHA MOTOR: Cal. App. Affirms Summary Judgment Against Baker
--------------------------------------------------------------
The Court of Appeals of California, Fourth District, affirms the
trial court's ruling granting summary judgment in favor of Yamaha
in the lawsuit entitled KYLE BAKER, Plaintiff and Appellant v.
YAMAHA MOTOR CORPORATION, USA, Defendant and Respondent, Case No.
E072089 (Cal. App.).
Plaintiff and Appellant Baker sued Defendant and Respondent Yamaha,
a California corporation, alleging that its failure to furnish
hanging price tags to its independent dealer Temecula Motorsports,
Inc. ("TMI") in 2012, as required by Vehicle Code former section
24014, subdivision (a), made it impossible for consumers to
determine the true prices of its new, assembled motorcycles. Baker
alleged causes of action for unfair competition (UCL; Bus. & Prof.
Code, Section 17200 et seq.), false advertising (FAL; Bus. & Prof.
Code, Section 17500, et seq.), and aiding and abetting.
Yamaha sells its products, including motorcycles, through
independent dealers, such as TMI, who purchase these products at
wholesale prices. The dealers sell the motorcycles to customers at
individually negotiated prices. Yamaha does not receive information
from dealers about the prices they charge in retail transactions,
nor does it have any control over how much dealers charge their
customers. Yamaha's dealer agreements require dealers to "'conduct
and maintain at all times their sales and service operations in
strict compliance with all applicable federal and state laws and
regulations, county and city ordinances and regulations and any
other applicable law, regulation or ordinance.'"
In 2012, the year relevant to the case, California law required
dealers to attach hang tags (furnished by motorcycle manufacturers
and approved by the Department of Motor Vehicles ("DMV")), which
indicate the "recommended retail price of the motorcycle" and the
"recommended price for each accessory or item of optional equipment
physically attached to the motorcycle at the time of its delivery
to the dealer." On October 29, 2012, Yamaha sent a letter to its
California motorcycle dealers regarding the use of DMV-approved
Yamaha hang tags. DMV's approval of Yamaha's hang tag format was
effective December 21, 2012. Prior to October 2012, TMI prepared
its own hang tags.
In June 2012, Baker shopped for a new Yamaha R6 motorcycle (R6) by
researching on the Internet and comparing prices at Fun Bike Center
and TMI. At TMI, the R6 had a TMI hang tag that listed Yamaha's
manufacturer's suggested retail price ("MSRP") of $10,890, an
amount Baker previously had seen on Yamaha's Web site. The hang tag
also listed an additional dealer markup ("ADM") of $1,760, bringing
the total asking price to $12,650, exclusive of sales tax and
applicable DMV fees. The ADM included freight ($300) and
preparation ($1,460) charges. The bottom of the hang tag stated the
total price "includes but is not limited to freight, assembly,
service, dealer insurance, profit and overhead, flooring and other
costs where applicable." The R6 had no accessories or optional
equipment installed, so there was no price quoted for those items.
Mr. Baker understood that the price listed on the R6 hang tag was
negotiable. Therefore, on June 29, 2012, he negotiated a total
purchase price (before sales tax, registration and certain fees) of
$10,225.06 or $2,424.94 less than the hang tag price of $12,650
($12,650-$2,424.94=$10,225.06). The total amount due for the R6 was
$11,200. Baker's deal was $664.94 less than the R6's MSRP of
$10,890 ($10,890-$664.94=$10,225.06). He is not aware of any dealer
who would have sold him the 2012 R6 for an overall price of $11,200
or less.
On December 31, 2015, Baker filed a putative class action against
TMI, asserting claims under California's UCL and FAL, and alleging
that TMI imposed undisclosed fees on him and other customers. On
January 27, 2016, he added Yamaha as a defendant in his first
amended complaint; however, his claims against Yamaha were for
"injunctive relief only" and "without seeking class certification."
Baker sought an injunction requiring Yamaha to stop its misleading
advertising. Yamaha demurred on the ground Baker lacked standing.
Subsequently, on February 2, 2018, Baker was granted leave to file
his third amended complaint, which focused on the allegation that
the R6 he purchased did not bear a hang tag furnished by Yamaha to
TMI. Baker claims Yamaha failed to comply with sections 24014 and
11712.5.
On July 18, 2018, Yamaha moved for summary judgment. The trial
court granted summary judgment in favor of Yamaha on the grounds
Baker lacked standing because the undisputed evidence showed he was
not harmed by the absence of the "Yamaha hang tags." The trial
court granted the motion on the ground Baker failed to establish
the requisite harm to support his claims against Yamaha for
violations of the UCL and FAL and for common law aiding and
abetting.
The court concluded the following: (1) "the only information that
Yamaha would have been required to state on the hang tags was the
MSRP," (2) Baker "read TMI's non-Yamaha hang tag and knew what the
MSRP was," and (3) Baker would have received "identical"
information "had Yamaha provided hang tags" to TMI. The court
explained: "Given that the information provided would have been
identical, the undisputed evidence shows that plaintiff was not
harmed by the absence of the Yamaha hang tags." Judgment was
entered on November 29, 2018. Baker appeals.
On appeal, Baker does not challenge the undisputed facts. Rather,
he contends the trial court erred in (1) concluding he lacked
standing by misinterpreting and narrowly applying the
particularized interests protected by sections 24014 and 11712.5,
(2) concluding there was no UCL violation because he had knowledge
of Yamaha's MSRP, (3) treating "standing" as an "element" of his
claims, (4) concluding TMI's "disclosures" on its hang tag
discharged Yamaha's duties under section 24014, (5) ignoring
disputed material facts it deemed irrelevant, and (6) adjudicating
his aiding and abetting claim in Yamaha's favor.
The Appellate Court rejects Baker's contentions and concludes, on
the evidence presented, he failed to raise a triable issue of
whether he was harmed by Yamaha's failure to furnish hang tags to
TMI. The Appellate Court, therefore, affirms the judgment.
Judge Art W. McKinster, writing for the Panel, opines that: the
trial court properly concluded Baker lacked standing, Baker did not
suffer an economic injury as a result of Yamaha's failure to
provide a hang tag to TMI, and Yamaha's statutory violation did not
cause Baker's alleged injury.
As Yamaha points out, TMI's allegedly improper dealer-imposed fees
have nothing to do with Yamaha. The fees were imposed at TMI's sole
discretion and were allowed by law, Judge McKinster holds.
Unable to overcome the basic fact that he has not suffered any
economic damages, Baker raises several arguments to eliminate the
standing requirement. Each fails, Judge McKinster concludes. The
Judge explains, among other things, that proof of a violation of a
predicate statute is not enough to support a UCL violation under
the unlawful prong. Judge McKinster adds that Yamaha's motion for
summary judgment was properly granted on the grounds Baker lacked
standing.
In his reply brief, Baker requests leave to amend so that a
substitute harmed plaintiff can replace him. He cites Branick v.
Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 243 (Branick),
and Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352,
without any analysis of their legal authority.
The Appellate Court notes that in Branick, the case was on appeal
when Proposition 64 was adopted (Gen. Elec. (Nov. 2, 2004)). Thus,
the Court of Appeal allowed the matter to be remanded to determine
whether the circumstances warranted granting leave to amend.
(Branick, supra, 39 Cal.4th at pp. 242-244.)
Unlike Branick, the instant case was filed several years after
Proposition 64 was adopted, Judge McKinster notes. Moreover, Baker
makes no representation that other harmed plaintiffs exist.
Accordingly, the Appellate Court denies the request.
The judgment is affirmed. Yamaha to recover costs on appeal.
A full-text copy of the Court's Opinion dated Feb. 4, 2021, is
available at https://tinyurl.com/3pm57mov from Leagle.com.
Pestotnik LLP and Ross H. Hyslop -- hyslop@pestotnik.com -- for the
Plaintiff and Appellant.
Gibson, Dunn & Crutcher, Theane Evangelis --
tevangelis@gibsondunn.com -- Timothy W. Loose --
tloose@gibsondunn.com -- Daniel R. Adler -- dadler@gibsondunn.com
-- and Emily R. Sauer -- esauer@gibsondunn.com -- for the Defendant
and Respondent.
[*] FCA Issues Statement on Recent Gamestop Share Trading Issues
----------------------------------------------------------------
Ralph Lovesy, Esq., and Christopher Walker, Esq., of Burges Salmon,
report that it has been well publicised that certain stock prices
have risen exponentially as retail investors -- many within
communities such as Reddit's popular "r/WallStBets" message board
-- bought shares and placed options against stocks shorted by hedge
funds (e.g. NYSE-listed companies such as video game retailer
GameStop or cinema chain AMC) en masse in a story that continues to
attract widespread interest.
However, on 29 January the UK financial regulator, the Financial
Conduct Authority ("FCA") issued a statement to investors, noting
that "buying shares in volatile markets is risky and you may
quickly lose money. These losses are unlikely to be covered by the
Financial Services Compensation Scheme". The U.S. Securities and
Exchange Commission (the "SEC") has issued a similar warning to
retail investors via its recent update "Thinking About Investing in
the Latest Hot Stock?".
In the U.S., some investors are now seeking to issue class action
lawsuits against online brokerage platforms such as Robinhood,
which have come under criticism for restricting investors ability
to continue to place orders in certain shares. With reference to
the UK, the FCA's statement also notes that brokerage firms are
"not obliged to offer trading facilities to clients", highlighting
that firms:
1. "may withdraw their services, in line with customer terms and
conditions if, for instance, they consider it necessary or prudent
to do so"; and
2. "[are] exposed to greater risk and therefore more likely to
need to take such action during periods of abnormally high
transaction volumes and price volatility".
The FCA notes that it will "take appropriate action wherever we see
evidence of firms or individuals causing harm to consumers or
markets" in line with its operational objectives to:
* secure an appropriate degree of protection for consumers;
* protect and enhance the integrity of the UK financial system;
and
* promote effective competition in the interests of consumers.
[GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
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