/raid1/www/Hosts/bankrupt/CAR_Public/210317.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, March 17, 2021, Vol. 23, No. 49
Headlines
ABBEY ROAD: Class Status-Related Bids Must be Filed by April 30
ADVA HOLDINGS: AIPD Settlement Class Gets Initial Certification
AETNA LIFE: Class Certification Bid Filing Due July 15
AGEAGLE AERIAL: Federman & Sherwood Reminds of April 27 Deadline
AGEAGLE AERIAL: Kirby McInerney Reminds of April 27 Deadline
ALLEGHENY COUNTY, PA: Class, Subclasses in Graham Suit Certified
ALLIANZ SE: Blake Cassels Attorneys Discuss Class Action Ruling
AMERICA'S COLLECTIBLES: Class Cert. Bid Must Be Filed by June 30
ANDALUSIA REGIONAL: Can Compel Arbitration in Scroggins Class Suit
AQUESTIVE THERAPEUTICS: Pomerantz Reminds of April 30 Deadline
ASTRAZENECA PLC: Pawar Law Reminds of March 29 Deadline
ATHENEX INC: Kehoe Law Firm Investigates Securities Claims
AUDI AG: Class Action Lawsuit Over Defective Systems Dismissed
BANK OF AMERICA: Bid to Stay Pending Arbitration in Anderjaska OK'd
BAUSCH HEALTH: Glumetza Antitrust Litigation Underway
BAUSCH HEALTH: Indemnified by J&J in Shower to Shower(R) Litigation
BAUSCH HEALTH: Timber Hill Class Action Ongoing
BAYER CROPSCIENCE: Flaten Sues Over Crop Input Pice Manipulation
BENIHANA NATIONAL: Parties Agree to Extend Class Cert. Bid Filing
BIG PICTURE: Reply to Renewed Bid for Class Cert. Due March 22
BIT DIGITAL: Pawar Law Reminds Investors of March 22 Deadline
BP EXPLORATION: Court Dismisses With Prejudice Alderman Class Suit
BRANCH BANKING: Dismissal & Arbitration Ruling in Sevier Reversed
CAPITAL ONE: Court Dismisses With Prejudice Fensterer Class Suit
CET INCORPORATED: Faces Kammer Suit Over Failure to Pay Overtime
CGH TECHNOLOGIES: Pennington Bid to Certify Collective Class Tossed
COLGATE-PALMOLIVE CO: Opposition to Class Cert. Bid Due April 8
COLLINS & AIKMAN: SEC's Bid to Transfer Funds for Disbursement OK'd
COMCAST CABLE: Patrick Seeks to Recover CSRs Unpaid Overtime
CONTINENTAL SERVICE: Goldstein Sues Over Illegal Collection Letter
CORECIVIC INC: Fourth Circuit Affirms Dismissal of Ndambi FLSA Suit
COVANTA PLYMOUTH: Brief in Support of Class Cert. Bid Due Oct. 13
DELAWARE NORTH: Class Certification Bid Filing Due May 3
DELTA COUNTY MEMORIAL: Faces Labor Class Suit From Hospital Staff
DELTA GENERAL: Denied Workers Overtime Pay, Pay Stubs, Says Suit
DOMETIC CORP: Ruling Over Refrigerator Design Defect Discussed
EBIX INC: Faruqi & Faruqi Reminds Investors of April 23 Deadline
EHANG HOLDINGS: Kahn Swick Reminds Investors of April 19 Deadline
ELECTRONIC ARTS: Court Stays Ramirez Class Suit Pending Arbitration
EVERGREEN PROFESSIONAL: Filing of Revised Class Notice Due March 17
FEDERATION INTERNATIONALE: Opposition to Class Cert. Bid Due May 25
FIDELITY MGMT: Dismissal of Consolidated ERISA Fee Suit Affirmed
FIFTH THIRD BANCORP: Zanni Suit Transferred to S.D. Ohio
G4S SECURE: Kovacs Seeks to Certify Class of Security Guards
GEISINGER HEALTH: Sauer Hits Employee Non-Poaching Policy
GRAND CANYON: Court Narrows Claims in Hannibal-Fisher Class Suit
GREEN PEAK: Montanez Files TCPA Suit in W.D. Michigan
GRIDDY ENERGY: Texas AG Files Lawsuit Over Marketing Practices
IMMUNOVANT SCIENCES: Securities Class Action Lawsuit Discussed
INFINITY Q: Robbins Geller Reminds Investors of April 26 Deadline
INFINITY Q: Schall Law Firm Reminds of April 27 Deadline
INFINITY Q: Wolf Haldenstein Reminds of April 27 Deadline
INTEGRATED TECH: Court Junks Monplaisir Bid for Class Certification
INTUIT INC: Arena's Bid for Prelim. OK of $40MM Settlement Denied
IRHYTHM TECHNOLOGIES: Kessler Topaz Reminds of April 2 Deadline
JENNIFER DING: Biyu Lin Files Labor Class Action
JET AUTOMOTIVE: Rivera, Mejia Seek Collective Action Status
JP MORGAN: Motion to Dismiss Iran Hostage Crisis Suit Granted
JPMORGAN CHASE: Enrichment Claim v. Phunware in Sha-Poppin Tossed
KELLOGG COMPANY: Smith Bid to Certify FLSA Collective Action Nixed
KIDROBOT INC: Quezada Files ADA Suit in S.D. New York
KROGER COMPANY: Store Staff Seeks Unpaid Overtime Wages
LEIDOS HOLDINGS: Kessler Topaz Reminds Investors of May 5 Deadline
LEIDOS HOLDINGS: The Schall Law Firm Reminds of May 3 Deadline
LOSER MACHINE: Monegro Files ADA Suit in S.D. New York
LOUISIANA: DoC Sued for Detaining People Past Release Dates
MDL 2924: Court Issues Order on Second Round of Motions to Dismiss
MENTAL HEALTH RESOURCES: Spencer Seeks Unpaid Overtime Premiums
MICROSOFT CORP: Agreed Protective Order Entered in Vance BIPA Suit
MONEYGRAM INT'L: Rosen Law Firm Reminds of April 30 Deadline
MONTCLAIR SCHOOL: Faces Class Action Lawsuit Over Remote Learning
MULTIPLAN CORP: Kaskela Law Announces Securities Class Action
NASHVILLE WRAPS: Monegro Files ADA Suit in S.D. New York
NEW YORK CITY: Seeks March 18 Extension to Oppose Class Cert. Bid
NOVA HOME: Asks Ct. to Postpone Conditional Certification Briefing
NURTURE INC: Soto Slams Toxic Substances in Baby Food
NURTURE INC: Strobel Files Suit in S.D. New York
NUTANIX INC: Rosen Law Reminds Investors of March 22 Deadline
OCEANBOX HOLDINGS: Monegro Files ADA Suit in S.D. New York
ONTRAK INC: The Klein Law Firm Reminds of May 3 Deadline
ORGAIN LLC: Patenaude Hits Artificial Vanilla in Almond Milk
PAYCOR INC: Stang Seeks Court-Authorized Notice to FLSA Collective
PENSKE TRUCK: Class Claims in Zamora Dismissed With Leave to Amend
PENUMBRA INC: Federman & Sherwood Reminds of March 16 Deadline
PENUMBRA INC: Saxena White Reminds Investors of March 16 Deadline
PG&E CORP: Dismissal of PSPS Suit Under Appeal
PG&E CORP: Initial Approval of Settlement in Vataj Suit Pending
PG&E CORP: Motions to Dismiss PERA New Mexico Suit Pending
PILLPACK LLC: Bid to Reconsider Class Status Order Tossed
PLUG POWER: Kessler Topaz Reminds Investors of May 7 Deadline
PROFESSIONAL DEBT: Kahn et al. Sue Over Unlawful Fees Collection
PUP COLLECTION: Monegro Files ADA Suit in S.D. New York
PURATOS CORP: Sato Action Claims Unpaid Overtime
QUEENSLAND: Farmers Raise $1MM to Fund Paradise Dam Class Action
RAYMOND JAMES: July 20 Extension to File Class Status Bid Sought
RECEIVABLES MANAGEMENT: Dyer Settlement Class Wins Certification
RENO, NE: April 14 Response Time to Class Certification Bid OK'd
RETAIL GROUP: Court Denies Bid to Certify Class for Limited Purpose
ROCHESTER CITY SCHOOL: RTA Files Class Action Grievance
ROMAN CATHOLIC ARCHDIOCESE: Faces Suit Over Alleged Sexual Abuse
SEALED AIR: Bid to Nix UA Local 13 Securities Class Suit Pending
SEGWAY INC: Quezada Files ADA Suit in S.D. New York
SEMPRA ENERGY: Appeal on Securities Suit Dismissal Still Pending
SEMPRA ENERGY: Continues to Defend Property & Business Class Suits
SEMPRA ENERGY: June Trial in Aliso Canyon Leak Suit Postponed
SONY COMPUTER: Law Firm Offers Arbitration Opt-Out Letter in Suit
SUNNYCREST NURSING: Faces Lawsuit Over COVID-19 Safety Measures
TOWERS WATSON: May 25 Settlement Fairness Hearing Set
TOYOTA MOTOR: Rhoads-Reed Files FCRA Suit in Delaware
TRIBUNE PUBLISHING: April 15 Settlement Fairness Hearing Set
TSG COLLECTIONS: Kosyan Files FDCPA Suit in E.D. New York
UNHEARD LLC: Monegro Files ADA Suit in S.D. New York
UNITED AIRLINES: Flores' Second Amended Class Complaint Dismissed
UNITED SERVICES: Thompson Bid to Certify Class Due Nov. 11
UNITED STATES: Court Junks Bowen Class Action w/o Prejudice
UNITED STATES: Immigration Detainees Class Certified in Gomes v DHS
URBAN COMPASS: Kaznecki Sues Over Unsolicited Phone Calls
VALVE CORPORATION: Class Status Bid Filing Due July 30
WALMART INC: Court Dismisses With Prejudice Gabertan's TCPA Claim
WALMART INC: Pomerantz Law Firm Reminds of March 22 Deadline
WELLPET LLC: Class Action Over Arsenic in Dog Food Can Proceed
WONDERDADS LLC: Quezada Files ADA Suit in S.D. New York
WORKHORSE GROUP: Pomerantz Law Reminds of May 7 Deadline
XL FLEET: RM LAW Reminds Investors of May 7 Plaintiff Deadline
XL FLEET: Scott+Scott Reminds Investors of May 7 Deadline
*********
ABBEY ROAD: Class Status-Related Bids Must be Filed by April 30
---------------------------------------------------------------
In the class action lawsuit captioned as SAUL GUZMAN, on behalf of
himself and other similarly situated, v. ABBEY ROAD CONTROL, INC.,
Case No. 3:20-cv-01877-JPW (M.D. Pa.), the Hon. Judge Jennifer P.
Wilson entered an order that:
1. The Plaintiff shall file any motions for collective and
class certification by April 30, 2021;
2. The deadline to file amended pleadings and joinder of
additional parties is April 30, 2021; and
3. The scheduling of the remaining deadlines in this case is
deferred pending the resolution of the collective and
class certification motions.
Abbey Road is a professional flagging company.
A copy of the Court's order dated March 3, 2020 is available from
PacerMonitor.com at https://bit.ly/2NgJM8l at no extra charge.[CC]
ADVA HOLDINGS: AIPD Settlement Class Gets Initial Certification
---------------------------------------------------------------
In the class action lawsuit captioned as ADVANCED INTERVENTIONAL
PAIN & DIAGNOSITCS OF WESTERN ARKANSAS, LLC, on behalf of itself
and All others similarly situated, v. ADVA HOLDINGS, LLC and
ENCOMPASS SPECIALTY NETWORK, LLC, Case No. 8:20-cv-02704-WFJ-CPT
(M.D. Fla.), the Hon. Judge William F. Jung entered an order
1. provisionally certifying the following Settlement Class,
for settlement purposes only:
"all persons and entities since December 20, 2015 through
the date of preliminary approval who held telephone
numbers that received one or more telephone facsimile
transmissions to the Second Amended Complaint, allegedly
advertising the availability or quality of property, goods
or services of the Defendants, as identified on the Class
List of 36,416 facsimile numbers;"
Excluded from the Settlement Class are all current
employees, officers, and directors of any Defendant, and
the judge presiding over this Action and his staff;
2. setting a final fairness hearing on June 22, 2021; and
3. approving the notice.
Advanced Interventional Pain & Diagnostics of Western Arkansas LLC
operates as a provider of health care services. The Clinic
specializes in the practice of interventional pain medicine. AIPD
evaluates and treats acute, chronic, and cancer pain and offers
related procedures and pain therapy plans.
Adva provides ancillary services. The Company offers pain
management, post acute care, and addiction recovery services,
including physical rehabilitation, counseling, and cognitive
behavior therapy.
A copy of the Court's order dated March 3, 2020 is available from
PacerMonitor.com at https://bit.ly/3lgBgTe at no extra charge.[CC]
AETNA LIFE: Class Certification Bid Filing Due July 15
------------------------------------------------------
In the class action lawsuit captioned as MICHALA KAZDA, on behalf
of herself and all others similarly situated, v. AETNA LIFE
INSURANCE COMPANY, Case No. 3:19-cv-02512-WHO (N.D. Calif.), the
Plaintiff Michala Kazda and Defendant Aetna Life stipulate and
jointly request that the Court continue all class certification,
pretrial and trial dates 90 days so that the Parties can attempt to
complete settlement negotiation as follows:
A. Class Certification Schedule
Deadline for Plaintiff to disclose any June 2, 2021
experts she will use for class
certification:
Deadline for Defendant to disclose July 2, 2021
any experts it will use to oppose
class certification:
Class Certification Motion: July 15, 2021
Opposition: August 12, 2021
Reply: August 26, 2021
Hearing: Sept. 22, 2021
B. Pretrial Scheule
Fact discovery cutoff: January 1, 2022
Expert disclosure: January 15, 2022
Expert Rebuttal: February 16, 2022
Expert Discovery Cutoff: March 6, 2022
Dispositive Motions heard by: April 27, 2022
Pretrial Conference: June 27, 2022
Trial: July 25, 2022
The Plaintiff's First Amended Complaint alleges that Aetna's
practice is to wrongfully deny liposuction to treat lipedema as
"cosmetic" pursuant to Coverage Policy Bulletin (CPB). Aetna denies
any policy or practice to deny coverage.
On March 16, 2020, the Court granted the Parties' stipulation to
continue all dates 90 days due to the Covid-19 pandemic and
settlement negotiations between the Parties.
On July 20, 2020, the Court granted the Parties' stipulation to
further continue the class certification, pretrial, and trial
deadlines because the parties believed they were making progress in
their ongoing settlement negotiations.
This is an Employee Retirement Income Security Act of 1974 (ERISA)
putative class action regarding coverage for treatment of lipedema,
a rare, chronic, progressive, painful, and immobilizing condition
that involves an abnormal buildup of adipose (fat) tissue, usually
in the lower body but sometimes in the arms. The Plaintiff alleges
the only effective treatment is a form of liposuction.
Aetna is an American managed health care company that sells
traditional and consumer-directed health care insurance and related
services, such as medical, pharmaceutical, dental, behavioral
health, long-term care, and disability plans, primarily through
employer-paid (fully or partly) insurance and benefit programs, and
through Medicare.
A copy of the Parties motion dated March 3, 2020 is available from
PacerMonitor.com at http://bit.ly/3tix5t3at no extra charge.[CC]
The Plaintiff is represented by:
Robert S. Gianelli, Esq.
Joshua S. Davis, Esq.
Adrian J. Barrio, Esq.
GIANELLI & MORRIS, A Law Corporation
550 South Hope Street, Suite 1645
Los Angeles, CA 90071
Telephone: (213) 489-1600
Facsimile: (213) 489-1611
E-mail: rob.gianelli@gmlawyers.com
joshua.davis@gmlawyers.com
adrian.barrio@gmlawyers.com
The Defendant is represented by:
Earl B. Austin, Esq.
Jonathan A. Shapiro, Esq.
BAKER BOTTS L.L.P.
101 California Street, Suite 3600
San Francisco, CA 94111
Telephone: (415) 291-6204
Facsimile: (415) 291-6304
E-mail: earl.austin@bakerbotts.com
jonathan.shapiro@bakerbotts.com
AGEAGLE AERIAL: Federman & Sherwood Reminds of April 27 Deadline
----------------------------------------------------------------
Federman & Sherwood on March 1 disclosed that on February 26, 2021,
a class action lawsuit was filed in the United States District
Court for the Central District of California against AgEagle Aerial
Systems, Inc. (NYSE American: UAVS). The complaint alleges
violations of federal securities laws, Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5, including
allegations of issuing a series of material or false
misrepresentations to the market which had the effect of
artificially inflating the market price during the Class Period,
which is September 3, 2019 through February 18, 2021.
To learn how to participate in this action, please visit
https://www.federmanlaw.com/blog/federman-sherwood-announces-the-filing-of-a-securities-class-action-lawsuit-against-ageagle-aerial-systems-inc/
Plaintiff seeks to recover damages on behalf of all AgEagle Aerial
Systems, Inc. shareholders who purchased common stock during the
Class Period and are therefore a member of the Class as described
above. You may move the Court no later than Tuesday, April 27, 2021
to serve as a lead plaintiff for the entire Class. However, in
order to do so, you must meet certain legal requirements pursuant
to the Private Securities Litigation Reform Act of 1995.
If you wish to discuss this action, obtain further information and
participate in this or any other securities litigation, or should
you have any questions or concerns regarding this notice or
preservation of your rights, please contact:
Robin Hester
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
Email to: rkh@federmanlaw.com
Or, visit the firm's website at www.federmanlaw.com [GN]
AGEAGLE AERIAL: Kirby McInerney Reminds of April 27 Deadline
------------------------------------------------------------
The law firm of Kirby McInerney LLP on March 2 disclosed that a
class action lawsuit has been filed in the U.S. District Court for
the Central District of California on behalf of those who acquired
AgEagle Aerial Systems, Inc. ("AgEagle" or the "Company") (NYSE:
UAVS) securities from September 3, 2019 through February 18, 2021,
inclusive (the "Class Period"). Investors have until April 27, 2021
to apply to the Court to be appointed as lead plaintiff in the
lawsuit.
The lawsuit alleges that defendants throughout the Class Period
made false and/or misleading statements and/or failed to disclose
that: (1) AgEagle did not have a partnership with Amazon and in
fact never had any relationship with Amazon; (2) rather than
correct the public's understanding about a partnership with Amazon,
defendants were actively contributing to the rumor that AgEagle had
a partnership with Amazon; and (3) as a result, defendants'
statements about AgEagle's business, operations, and prospects,
were materially false and misleading and/or lacked a reasonable
basis at all relevant times.
On October 14, 2020, news broke that Amazon did not have a
partnership agreement with AgEagle, and in fact never did. The
Wichita Business Journal published a story with the headline:
"Exclusive: Who's AgEagle's big customer? We now know who it's
not."
On February 18, 2021, Bonitas Research published a report revealing
that AgEagle "was a pump & dump scheme orchestrated by . . .
AgEagle founder and former chairman Bret Chilcott and other UAVS
insiders to defraud US investors." On this news, shares of AgEagle
fell $5.13, or approximately 36.4%, to close at $8.96 on February
18, 2021, damaging investors.
If you purchased or otherwise acquired AgEagle securities, have
information, or would like to learn more about these claims, please
contact Thomas W. Elrod of Kirby McInerney LLP at 212-371-6600, by
email at investigations@kmllp.com, or by filling out this contact
form, to discuss your rights or interests with respect to these
matters without any cost to you.
Kirby McInerney LLP is a New York-based plaintiffs' law firm
concentrating in securities, antitrust, whistleblower, and consumer
litigation. The firm's efforts on behalf of shareholders in
securities litigation have resulted in recoveries totaling billions
of dollars. Additional information about the firm can be found at
Kirby McInerney LLP's website: http://www.kmllp.com.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules.
Contacts:
Kirby McInerney LLP
Thomas W. Elrod, Esq.
212-371-6600
https://www.kmllp.com
investigations@kmllp.com [GN]
ALLEGHENY COUNTY, PA: Class, Subclasses in Graham Suit Certified
----------------------------------------------------------------
In the class action lawsuit captioned as MICHAEL GRAHAM; ALEXUS
DIGGS; and HEATHER CONNOLLY, on behalf of themselves and all others
similarly situated, v. ALLEGHENY COUNTY; and ORLANDO HARPER, Warden
of Allegheny County Jail, Case No. 2:20-cv-00496-CB-CRE (W.D. Pa.),
the Hon. Judge Cathy Bissoon entered an order adopting the
Stipulation of the Parties and certifying the following class and
subclasses:
-- Class
"All persons held in custody at ACJ who have not received
a complete vaccination for COVID-19 while the COVID-19
policy that is the subject of the consent decree in this
matter is operative at ACJ. When a vaccine requires more
than one dose a "complete vaccination" is achieved upon
administration of the final dose;"
-- Medically Vulnerable Sub-class
"The "Medically Vulnerable" subclass is defined as all
persons held at ACJ who have not received a complete
vaccination and who are 55 or older, as well as current
and future persons held at ACJ of any age who according to
current CDC guidelines are or might be at increased risk
of severe illness from the virus that causes COVID-19. All
plaintiffs represent the Medically Vulnerable Subclass;"
and
-- Disability Sub-class:
"The "Disability" subclass is defined as all persons held
at ACJ who have not received a complete vaccination and
who have a physical or mental impairment that
substantially limits one or more of their major life
activities and who according to current CDC guidelines are
or might be at increased risk of severe illness from the
virus that causes COVID-19 due to their disability. All
plaintiffs represent the Disability Subclass.
Allegheny County is located in the southwest of the U.S.
state of Pennsylvania.
A copy of the Court's order dated March 3, 2020 is available from
PacerMonitor.com at https://bit.ly/3lqVWIF at no extra charge.[CC]
ALLIANZ SE: Blake Cassels Attorneys Discuss Class Action Ruling
---------------------------------------------------------------
Claude Marseille, Esq. -- claude.marseille@blakes.com -- Matthew
Liben, Esq. -- matthew.liben@blakes.com -- and Anthony Cayer, Esq.,
of Blake, Cassels & Graydon LLP, in an article for Mondaq, rpeort
that on January 14, 2021, Justice Gary D.D. Morrison of the
Superior Court of Quebec (Court), issued an important decision,
declining jurisdiction over an application to authorize (certify) a
class action (Application) brought by a restaurant owner (Bâton
Rouge) against its insurer (Allianz) in the wake of COVID-19 and
the government-mandated business closures that ensued. The
Application was based on the business interruption (BI) coverage
included in Bâton Rouge's insurance policy with Allianz (Policy).
The policy also contained a multi-tiered arbitration clause
respecting coverage disputes. The Court ruled that it did not have
subject matter jurisdiction over the dispute because it fell within
the scope of that arbitration clause and that the dispute needed to
be referred to an arbitrator.
Multi-tiered arbitration (or dispute resolution) clauses establish
a series of escalating steps (negotiations between high-level
executives of each party, mediation, etc.) leading to a binding
arbitration if they have failed to yield a resolution to the
dispute. These clauses have become popular in commercial contracts
as they seek to leverage the upsides and mitigate the downsides of
various forms of alternative dispute resolution mechanisms.
By declining jurisdiction on that basis, the Court not only
dismissed the proposed class action at a preliminary stage but also
confirmed that a multi-tiered dispute resolution clause may prevent
a party from proceeding before Quebec courts. To be effective, the
clause must qualify as a complete undertaking to arbitrate in that
the dispute resolution process must end either with an out-of-court
settlement of the dispute or a final and binding arbitration
process.
THE PROPOSED CLASS ACTION
In its application, Bâton Rouge claimed under its BI coverage
alleging that it suffered losses due to governmental orders forcing
the closure of its restaurants or limiting their activities to
take-out orders in the wake of COVID-19. Bâton Rouge sought to
institute a class action on behalf of all similarly situated
operators of restaurants and bars in Quebec who were denied BI
coverage by Allianz. Allianz filed a "declinatory exception" asking
the Court to decline jurisdiction over the dispute on the basis of
a multi-tiered dispute resolution clause included in the Policy,
pursuant to which the parties agreed to resolve coverage disputes
first by mediation and then by final and binding arbitration.
THE JUDGMENT
A guiding principle of the Code of Civil Procedure of Quebec (Code)
is the deference granted by the legislator to private dispute
resolution mechanisms. Based on this guiding principle and the
relevant provisions of the Code, the Court concluded that it had to
decline jurisdiction and refer the dispute to a mediator and, if it
could not be resolved amicably, to an arbitrator. The Court found
that the dispute resolution clause was mandatory, clear,
unambiguous, as well as final and binding. In other words, it
constituted a complete undertaking to arbitrate respecting the
subject matter of the dispute. The fact that the clause was
multi-tiered did not affect its validity.
Bâton Rouge argued that the Policy was at best ambiguous in that
regard since it also included a clause stating that "[t]he Courts
in the Court District in which the Named Insured is located shall
have exclusive jurisdiction in case of a coverage dispute." The
Court concluded that, in the face of the arbitration clause, this
clause did not give it subject matter jurisdiction over the dispute
but only dealt with the issue of territorial jurisdiction.
The Court underlined that both the Quebec Court of Appeal and the
Supreme Court of Canada have determined that arbitration clauses do
not violate public order even in cases where a plaintiff seeks to
bring a class action against the defendant.
Finally, the Court refused to accept Bâton Rouge's argument based
in equity to the effect that declining jurisdiction over the
proposed class action would compel each insured to proceed by way
of individual mediation and arbitration, as "class arbitrations"
are not recognized in Quebec law. Bâton Rouge argued that this
would be costly and lengthy, and that it would discourage class
members from exercising their rights. The Court ruled that subject
matter jurisdiction over a dispute "is a matter of public order [.]
not a matter of equity."
Thus, Bâton Rouge was unsuccessful in demonstrating that the
multi-tiered dispute resolution clause was illegal or contrary to
public order, or that it was not a complete undertaking to
arbitrate, which led the Court to decline jurisdiction over the
proposed class action. Given that the arbitration clause was
included in every Policy concluded with class members, the Court
found that the Application became moot and dismissed it as a
whole.
CONCLUSION
It did not take long for the Bâton Rouge decision to be cited in
other cases. Recently the Court cited Bâton Rouge to exclude
certain businesses from a class action because their agreements
included an arbitration clause.
Quebec law recognizes the validity of arbitration agreements even
in the face of applications to authorize (certify) class actions,
save in exceptional cases specifically identified by the legislator
such as consumer claims. The issue is one of public order that goes
to the very jurisdiction of the Court over the dispute and thus
cannot be affected by equity considerations. In Bâton Rouge, the
Court confirmed that multi-tiered alternative dispute resolution
clauses will have the same effect as "pure" arbitration clauses
insofar as they qualify as complete undertakings to arbitrate. The
inclusion of arbitration or multi-tiered alternative dispute
resolution clauses in commercial agreements should be seriously
considered as a means of effectively dealing with potential
disputes and managing the risk of disruptive class action
proceedings.
The Bâton Rouge decision will soon be reviewed by the Quebec Court
of Appeal -- a notice of appeal was recently filed by Bâton Rouge
in this regard. [GN]
AMERICA'S COLLECTIBLES: Class Cert. Bid Must Be Filed by June 30
----------------------------------------------------------------
In the class action lawsuit captioned as ASHLEY WILLIAMS, et al.,
v. AMERICA'S COLLECTIBLES NETWORK, INC. d/b/a JTV, Case No.
3:20-cv-00428-CEA-HBG (E.D. Tenn.), the Hon. Judge Charles E.
Atchley Jr. entered a scheduling order as follows:
1. The Discovery in advance of Plaintiff's motion for
conditional class certification shall be completed by May
31, 2021.
2. The Plaintiff's motion for class certification shall be
filed on or before June 30, 2021. The Defendant shall file
a response on or before August 12, 2021. The Plaintiff may
file an optional five page reply brief within seven days
of service of the Defendant's responsive brief.
3. The Court will convene a case management conference after
resolution of Plaintiff's motion for conditional class
certification to set remaining pretrial deadlines.
America's Collectibles, doing business as Jewelry Television,
online retails jewelry.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at http://bit.ly/3rXYK2pat no extra charge.[CC]
ANDALUSIA REGIONAL: Can Compel Arbitration in Scroggins Class Suit
------------------------------------------------------------------
In the case, MARILYN R. SCROGGINS, Plaintiff v. ANDALUSIA REGIONAL
HOSPITAL, Defendant, Case No. 2:16-cv-00338-ECM (M.D. Ala.), Judge
Emily C. Marks of the U.S. District Court for the Middle District
of Alabama, Northern Division, granted the Defendant's motion to
compel arbitration; and denied the Defendant's motion to dismiss.
The case is about a third-party beneficiary who wishes to enforce a
contract but not be held to its arbitration clause. ARH maintains
a contract with United HealthCare of Alabama, Inc. setting forth
the terms ARH follows when it delivers medical services to
individuals insured by United HealthCare. It is undisputed that
Scroggins is a third-party beneficiary of this contract, or "HPA,"
because she is insured under the contract.
On May 19, 2015, Scroggins was in an automobile accident in
Covington County, Alabama. An ambulance took Scroggins to ARH,
where she received emergency-room treatment for her injuries.
Scroggins had health insurance at that time with United HealthCare.
According to Scroggins, the terms of the HPA between United
HealthCare and ARH require the hospital to (1) submit Scroggins'
emergency room bill to United HealthCare, (2) accept United
HealthCare's discounted payment as full payment to the extent
Scroggins did not owe a co-pay or deductible, and (3) hold
Scroggins harmless for charges exceeding her responsibilities under
ARH's plan with United HealthCare.
The Plaintiff alleges that, instead of following its own policy,
the hospital obtained $5,000 in undiscounted medical payment from
Scroggins' automobile insurer and then one of its agents filed a
hospital lien for $6,740.75 on all claims or demands accruing to
Scroggins in Covington County, Alabama. When Scroggins received
settlement proceeds from the accident, she was required to deduct
money from the settlement to pay the hospital lien.
Ms. Scroggins alleges that ARH breached the HPA between itself and
United HealthCare when it failed to submit her bills to United
HealthCare or to follow the rest of the steps outlined in their
managed-care contract. As a third-party beneficiary, she seeks to
enforce the contract. Scroggins brings her class action
allegations on her own behalf and on behalf of all other similarly
situated.
The Plaintiff filed her original and amended class action
complaints against numerous Defendants -- but, importantly, not the
hospital -- beginning in May 2016. Since then, the Court joined
ARH as the sole Defendant and dismissed her claims against all
other Defendants on March 6, 2020. The only remaining claim is
Scroggins' breach of contract claim against ARH, filed on April 27,
2020.
Blue Cross Blue Shield Kansas, Inc. was terminated as a Defendant
on Aug. 8, 2017. The rest of the Defendants were dismissed on
March 6, 2020. In its memorandum and order, the Court joined
Andalusia Regional Hospital as the sole remaining Defendant,
pursuant to Fed. R. Civ. P. 19(a)(2). The Court dismissed all
counts against all the other Defendants, leaving the breach of
contract claim against ARH. Scroggins brought that claim when she
filed her third amended class action complaint against ARH on April
27, 2020. Her action is brought as a Plaintiff's class action
pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3).
Pending before the Court is ARH's motion to compel arbitration and
to dismiss Scroggins' claim. At issue is whether the arbitration
clause within the contract in the case, or the Hospital
Participation Agreement ("HPA"), binds Scroggins. Scroggins argues
that, even though she is a third-party beneficiary of the HPA, she
is not bound by the arbitration agreement.
Scroggins has filed a response in opposition to the motion, and the
motion is ripe for review. After careful review of the motion, the
briefs filed in support of and in opposition to the motion, the
supporting and opposing evidentiary submissions, and the applicable
law, Judge Marks concludes that ARH's Motion to Compel Arbitration
is due to be granted ARH's Motion to Dismiss is due to be denied,
and the proceeding is stayed pending arbitration.
The Judge finds that the arbitration agreement covers the dispute
at hand. For the arbitration clause to govern, the dispute must be
one that "arises out of or is related to" the HPA and thus should
be "submitted to binding arbitration in accordance with the rules
of the American Arbitration Association." The burden is on
Scroggins to demonstrate that the arbitration agreement does not
apply to this dispute. However, Scroggins brings a breach of
contract claim, which directly arises out of the HPA. The
arbitration agreement does govern this dispute.
The Judge also finds that Scroggins has not met her burden of
establishing procedural and substantive unconscionability. She
opines that none of Scroggins' arguments support the claim that the
arbitration agreement is (1) grossly unfavorable to ARH or United
HealthCare, or (2) that ARH or United HealthCare had overwhelming
bargaining power. Nor do her arguments establish procedural
unconscionability through lack of meaningful choice or substantive
unconscionability through unreasonably favorable terms to the more
powerful party. Additionally, federal precedent persuades the
Judge that the loss of the ability to bring a class action does not
warrant a finding of unconscionability. Accordingly, the
arbitration agreement is enforceable.
Judge Marks is empowered by 9 U.S.C. Section 3 to stay this
proceeding pending arbitration of this dispute. For the reasons as
stated, and for good cause, she granted the Defendant's motion to
compel arbitration; and denied the Defendant's motion to dismiss.
The Judge stayed the case pending arbitration. On or before the
fifth day of each month, beginning on Sept. 1, 2021, the Parties
will file a Joint Status Report advising the Court of the status of
the arbitration. Costs are taxed against the Plaintiff for which
execution may issue.
A full-text copy of the Court's March 5, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/8pxa7hs8 from
Leagle.com.
AQUESTIVE THERAPEUTICS: Pomerantz Reminds of April 30 Deadline
--------------------------------------------------------------
Pomerantz LLP on March 1 disclosed that a class action lawsuit has
been filed against Aquestive Therapeutics, Inc. ("Aquestive" or the
"Company") (NASDAQ: AQST) and certain of its officers. The class
action, filed in United States District Court for the District of
New Jersey, and docketed under 21-cv-03751, is on behalf of a class
consisting of all persons and entities other than Defendants that
purchased or otherwise acquired Aquestive securities between
December 2, 2019 and September 25, 2020, both dates inclusive (the
"Class Period"), seeking to recover damages caused by Defendants'
violations of the federal securities laws and to pursue remedies
under Sections 10(b) and 20(a) of the Securities Exchange Act of
1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder,
against the Company and certain of its top officials.
If you are a shareholder who purchased Aquestive securities during
the Class Period, you have until April 30, 2021 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at newaction@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and the number of shares purchased.
Aquestive was founded in 2004 and is headquartered in Warren, New
Jersey. Aquestive is a specialty pharmaceutical company that
focuses on identifying, developing, and commercializing various
products to address unmet medical needs. The Company's most
advanced proprietary product candidate is Libervant (diazepam), a
buccal soluble film formulation of diazepam for the treatment of
recurrent epileptic seizures.
On December 2, 2019, Aquestive announced the completion of the
rolling submission of a New Drug Application ("NDA") to the U.S.
Food and Drug Administration ("FDA") for Libervant Buccal Film for
the management of seizure clusters (the "Libervant NDA").
The complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) data included in the Libervant
NDA submission showed a lower drug exposure level than desired for
certain weight groups; (ii) the foregoing significantly decreased
the Libervant NDA's approval prospects; (iii) as a result, it was
foreseeable that the FDA would not approve the Libervant NDA in its
current form; and (iv) as a result, the Company's public statements
were materially false and misleading at all relevant times.
On September 25, 2020, Aquestive announced receipt of a Complete
Response Letter ("CRL") from the FDA indicating that the review
cycle for the Libervant NDA was complete but the application could
not be approved in its current form. Specifically, Aquestive
advised investors that "[i]n the CRL, the FDA cited that, in a
study submitted by the Company with the NDA, certain weight groups
showed a lower drug exposure level than desired. The Company
intends to provide to the FDA additional information on PK modeling
to demonstrate that dose adjustments will obtain the desired
exposure levels."
On this news, Aquestive's stock price fell $2.64 per share, or
34.69%, to close at $4.97 per share on September 28, 2020.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com [GN]
ASTRAZENECA PLC: Pawar Law Reminds of March 29 Deadline
-------------------------------------------------------
Pawar Law Group on March 1 disclosed that a class action lawsuit
has been filed on behalf of shareholders who purchased shares of
AstraZeneca PLC (NASDAQ: AZN) from May 21, 2020 through November
20, 2020, inclusive (the "Class Period"). The lawsuit seeks to
recover damages for AstraZeneca PLC investors under the federal
securities laws.
To join the class action, go here or call Vik Pawar, Esq. toll-free
at 888-589-9804 or email info@pawarlawgroup.com for information on
the class action.
According to the lawsuit, defendants made false and/or misleading
statements and/or failed to disclose that: initial clinical trials
for AZD1222, the Company's coronavirus vaccine hopeful, had
suffered from a critical manufacturing error, resulting in a
substantial number of trial participants receiving half the
designed dosage; 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; 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; 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; 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; as
a result of the foregoing, the clinical trials for AZD1222 had not
been conducted in accordance with industry best practices and
acceptable standards and the data and conclusions that could be
derived from the clinical trials was of limited utility; and as a
result of the foregoing, AZD1222 was unlikely to be approved for
commercial use in the United States in the short term, one of the
largest potential markets for the drug.
If you wish to serve as lead plaintiff, you must move the Court no
later than March 29, 2021. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation.
No class has been certified. Until a class is certified, you are
not represented by counsel unless you hire one. You may hire
counsel of your choice. You may also do nothing at this time and be
an absent member of the class. Your ability to share in any future
recovery is not dependent upon being a lead plaintiff.
Pawar Law Group represents investors from around the world.
Attorney advertising. Prior results do not guarantee or predict a
similar outcome with respect to any future matter.
Contract:
Vik Pawar, Esq.
Pawar Law Group
20 Vesey Street, Suite 1410
New York, NY 10007
Tel: (917) 261-2277
Fax: (212) 571-0938
info@pawarlawgroup.com [GN]
ATHENEX INC: Kehoe Law Firm Investigates Securities Claims
----------------------------------------------------------
Kehoe Law Firm, P.C. is investigating potential securities claims
on behalf of investors of Athenex, Inc. ("Athenex" or the
"Company") (NASDAQ: ATNX) to determine whether the Company engaged
in securities fraud or other unlawful business practices.
Shares of Athenex dropped significantly after the Company reported
Q4 results and received a complete response letter from the FDA
expressing concerns about the Company's new drug application for a
drug which treats metastatic breast cancer.
INVESTORS WHO PURCHASED, OR OTHERWISE ACQUIRED, ATNX SECURITIES AND
SUFFERED LOSSES GREATER THAN $50,000 ARE ENCOURAGED TO COMPLETE
KEHOE LAW FIRM'S SECURITIES CLASS ACTION QUESTIONNAIRE OR CONTACT
KEVIN CAULEY, DIRECTOR, BUSINESS DEVELOPMENT, (215) 792-6676, EXT.
802, KCAULEY@KEHOELAWFIRM.COM, SECURITIES@KEHOELAWFIRM.COM,
INFO@KEHOELAWFIRM.COM, TO DISCUSS THE SECURITIES CLASS ACTION
INVESTIGATION OR POTENTIAL LEGAL CLAIMS.
Kehoe Law Firm, P.C., with offices in New York and Philadelphia, is
a multidisciplinary, plaintiff–side law firm dedicated to
protecting investors from securities fraud, breaches of fiduciary
duties, and corporate misconduct. Combined, the partners at Kehoe
Law Firm have served as Lead Counsel or Co-Lead Counsel in cases
that have recovered more than $10 billion on behalf of
institutional and individual investors.
This press release may constitute attorney advertising. [GN]
AUDI AG: Class Action Lawsuit Over Defective Systems Dismissed
--------------------------------------------------------------
carcomplaints.com reports that an Audi class action lawsuit has
been dismissed after owners failed to convince the judge the
Start-Stop systems are defective. The systems, according to the
class action, shut off the engines too soon and disengage the power
brakes and power steering before the vehicles stop.
The plaintiffs also allege the systems fail to restart the vehicles
once they begin moving.
The Audi Start-Stop system is supposed to reduce carbon emissions
released when the vehicle is idling by shutting off the engine when
the brake is pressed far enough to stop the vehicle.
According to the class action lawsuit, these vehicles are affected
by the alleged Start-Stop system problems.
2017-2020 Audi A3
2017-2020 Audi A4
2017-2020 Audi A5
2017-2020 Audi A6
2017-2020 Audi A7
2017-2020 Audi A8
2017-2020 Audi S3
2017-2020 Audi S4
2017-2020 Audi S6
2017-2020 Audi S8
2017-2020 Audi TT
2017-2020 Audi TTS
2017-2020 Audi Q5
2017-2020 Audi Q7
2017-2020 Audi Q8
2017-2020 Audi SQ5
The plaintiffs allege Audi dealerships refuse to help vehicle
owners when they complain about the systems, and Audi sent dealers
technical service bulletins (TSBs) which said customers may
complain about the complex systems.
The lawsuit doesn't allege any crashes have occurred because of the
Start-Stop systems, but the plaintiffs claim they have been injured
by the "diminution in value and the costs of repairs required to
ameliorate the defect."
Motion to Dismiss the Audi Class Action Lawsuit
The judge granted Audi's motion to dismiss by pointing out the
owner's manuals clearly say the Start-Stop system "may turn off the
engine before the car comes to a complete stop." And the manual
also says any vehicle owner who doesn't want to use the system can
manually turn it off.
The judge found problems with a breach of warranty claim made where
the plaintiffs allege the Start-Stop systems were not as safe as
they had believed based on Audi advertisements, which are not part
of the contracts. However, the plaintiffs don't claim the vehicles
were "different products than what they bargained for."
The judge ruled those "facts do not support a breach of contract
claim."
The judge then turned to an implied warranty of merchantability
claim alleged by the plaintiffs. According to the judge, the basic
requirement for any claim based on the implied warranty of
merchantability is the plaintiff must allege the goods received are
not fit for their ordinary use.
However, the breach of implied warranty claims fail because the
plaintiffs do not allege the Audi vehicles are not "substantially
free of defects."
And while the plaintiffs cite other legal cases, the judge says the
Start-Stop system, unlike any of the defects in the cases cited by
plaintiffs, is optional in that it can be turned off by pushing a
single button.
"Although plaintiffs may be frustrated by the requirement that they
must push the button every time they start the engine to disengage
the Start/Stop system, they offer no authority that supports
treating that frustration as an actionable breach of implied
warranty of merchantability." - Judge Leonie M. Brinkema
The judge also found all the plaintiffs who allege they brought
their vehicles to Audi dealers to have the Start/Stop systems
repaired according to the warranty also allege their cars were
examined and they were "told there were no error codes for the
system or any deviations from how the system was supposed to
function."
Plaintiffs had no better success with fraud claims because the Audi
class action lawsuit doesn't name any information about the systems
that was concealed.
According to plaintiffs, the Start-Stop system is defective because
it "shuts off the engine too soon, so as to disengage power
steering and power brakes before the vehicle has come to a stop,"
and because it does not "restart the engine immediately when the
vehicle begins moving."
But the judge says the owner's manuals clearly describe what
happens when using the Start-Stop systems.
"The engine stops shortly before the vehicle comes to a stop or if
the vehicle is stationary. You can determine for yourself if the
engine will stop or not by reducing or increasing the amount of
force you use to press the brake pedal. For example, if you only
lightly press on the brake pedal in stop-and-go traffic or when
turning, the engine will not switch off when the vehicle is
stationary. As soon as you press the brake down harder, the engine
will switch off."
According to the judge, Audi explains how the system is supposed to
function, yet the plaintiffs claim the system is defective because
it works as described in the owner's manual. The judge says it is
"simply how the system is supposed to operate."
The plaintiffs don't allege the owner's manuals are wrong, but the
lawsuit alleges the disclosures in the manuals are fraudulent.
"[T]he Audi manuals describe one operating aspect of the system,
that it will shut down the engine while it is still in motion, but
they are completely silent on the defect, that the system is
designed such that this shutdown (1) causes the loss of power
steering and power brakes while the car is still moving; and (2)
prevents the use of power steering and power brakes when the engine
starts back up and lurches forward." - Audi class action lawsuit
But the judge ruled that contrary to plaintiffs' argument, the
owner's manuals clearly do explain the consequences of an engine
shutdown for the power steering and brakes.
According to the manual, Audi warns, "[t]he full function of the
brake booster and the power steering is not guaranteed" when the
engine is turned off. Additionally, the manual has a warning "that
the brake booster and power steering only work when engine is
running."
The Audi class action lawsuit was filed in the U.S. District Court
for the Eastern District of Virginia, Alexandria Division: Pitts,
et al., v. Volkswagen Group of America, Inc., et al.
The plaintiff is represented by Bailey Glasser, LLP, and Hagens
Berman Sobol Shapiro LLP. [GN]
BANK OF AMERICA: Bid to Stay Pending Arbitration in Anderjaska OK'd
-------------------------------------------------------------------
In the case, JOHN ANDERJASKA, CHUNGYAO CHEN, TEENA COLEBROOK, JOEL
GRIFFITH, ART HEINEMAN, CALVIN WILLIAMS, CHARLES WITTE, on behalf
of themselves and all others similarly situated, Plaintiffs v. BANK
OF AMERICA, N.A., CAPITAL ONE, N.A., CITIBANK, N.A., J.P. MORGAN
CHASE, N.A., WELLS FARGO BANK, N.A., Defendants, Case No. 19 Civ.
3057 (LTS) (GWG) (S.D.N.Y.), Magistrate Judge Gabriel W. Gorenstein
of the U.S. District Court for the Southern District of New York
granted Chase's motion to stay all claims of the Plaintiffs Chen
and Williams pending arbitration.
The Plaintiffs brought the putative class action alleging that the
Defendants, a group of banks, had caused them injury by negligently
failing to take steps to prevent them from falling victim to a
fraudulent "binary options" scheme, by aiding and abetting the
scheme, and by fraudulently concealing the scheme from plaintiffs.
Plaintiffs Chungyao Chen and Calvin Williams allege that beginning
in 2015 they used credit or debit cards held with Defendant Chase
to make payments to the operators of the scheme.
Mr. Chen, a resident of California, and Williams, a resident of
Wisconsin, each had deposit accounts and credit card accounts with
Chase. Chen had initially opened a deposit account with Washington
Mutual, but this account was converted into a Chase account in
October 2009. Williams opened his Chase checking and saving
accounts in March 2014 and closed them in September 2018. Chen has
two credit cards with Chase, which he began using in 2005 and 2012,
respectively. Williams had a credit card with Chase beginning in
March 2014 but closed the card in March 2018. However, he
continues to receive statements, "is responsible for an ongoing
balance on the account," and "has made multiple payments."
In order to maintain their deposit accounts, both Chen and Williams
agreed to the terms of a deposit account agreement ("DAA"). Since
February 2012, the DAA has had an arbitration provision. While the
DAA gave depositors the ability to opt-out of the arbitration
clause, neither Chen nor Williams did so.
In order to maintain their credit card accounts, Chen and Williams
agreed to the terms of a card member agreement ("CMA"). Those
agreements were amended in June 2019 to include an arbitration
provision. The CMA also gave card holders the ability to opt-out
of this clause, but neither Chen nor Williams did so.
The Plaintiffs initially filed the action in state court on Feb. 9,
2019. Chase removed the case to federal court on April 5, 2019,
and the Plaintiffs then moved to remand the case back to state
court, filed May 14, 2019. The district court denied that motion.
Chase has now brought a motion to compel arbitration of the claims
of Chen and Williams and to stay the action pending arbitration.
The other Defendants filed motions to dismiss. No discovery has
yet taken place.
The Plaintiffs' arguments are directed exclusively to the second
step of analysis: "the scope" of the arbitration agreements. They
assert that 1) the DAA arbitration clause was permissive, and since
they "chose not to elect arbitration," the agreement "cannot now
retroactively nullify that selection;" 2) neither the DAA or CMA
clauses apply to this case, because the Plaintiffs "are not seeking
to 'go to' court; they are already in court;" 3) Chase waived its
right to arbitration by participating in the litigation; and 4) the
CMA arbitration clause does not mandate arbitration because it was
"not put into effect until after the filing of the case in February
2019." Finally, the Plaintiffs argue that even if the Court found
that the clauses mandated arbitration of this dispute, it "would
still be unable to compel arbitration," because the agreements
require that arbitration take place outside this district.
With respect to whether the DAA arbitration clause is permissive,
Magistrate Judge Gorenstein opines that the clause states, in
capital letters, that disputes "must be" resolved by arbitration
"when either you or we request it." Thus, the Plaintiffs'
contention -- that, because they did not request arbitration, Chase
is now barred from doing so -- conflicts with the plain language of
the agreement. Once Chase requested arbitration, the dispute
between the parties "must be" resolved by arbitration.
Similarly, the Magistrate Judge finds that the Plaintiffs' argument
that Chase lost its right to compel arbitration once they filed
their lawsuit is contradicted by the text of both clauses. There
is no limitation on the circumstances under which a party may
demand arbitration or the time when a party may demand arbitration.
The agreements simply state that arbitration must take place "when
either you or we request it," or "whenever you or we choose"
arbitration.
The Magistrate Judge also rejects the Plaintiffs' argument that
Chase has waived the arbitration clauses by participating in
litigation. He says courts look to three factors to determine
waiver: "(1) the time elapsed from when litigation was commenced
until the request for arbitration; (2) the amount of litigation to
date, including motion practice and discovery; and (3) proof of
prejudice." The key to a waiver analysis is prejudice. Waiver of
the right to compel arbitration due to participation in litigation
may be found only when prejudice to the other party is
demonstrated."
While the Plaintiffs make much of the fact that Chase is making "a
demand to arbitrate 15 months after the claim was filed," the delay
was occasioned by the Plaintiffs' motion to remand the case to
state court. Chase removed the case promptly to federal court, see
Notice of Removal, and the Plaintiffs then moved to remand it back,
see Motion to Remand, filed May 14, 2019. That motion was resolved
against the Plaintiffs on March 30, 2020, and Chase moved to compel
arbitration on May 14, 2020. No litigation of the merits of the
claim occurred during this period. The Plaintiffs have not even
argued -- let alone shown -- that they will suffer prejudice if
arbitration is compelled. Moreover, courts commonly have refused
to find a waiver merely because the motion to compel arbitration
was made after the removal of the case to federal court.
As for the Plaintiffs' argument concerning the applicability of the
CMA arbitration clause, the Magistrate Judge opines that it is not
necessary to reach this argument given that the Plaintiffs do not
contest Chase's argument that the DAA clause, if it applies, would
cover all claims raised by Chen and Williams in the action. In any
event, he rejects their argument that because the CMA was not put
into effect until after the case was filed, the CMA arbitration
clause could not apply to their claims.
As to the Plaintiffs' final argument, the Magistrate Judge agrees
that the Court cannot compel arbitration. It is because section 4
of the FAA provides a court with the authority to compel
arbitration only "within the district in which the petition for an
order directing such arbitration is filed," and the agreements at
issue require that arbitration take place in the Plaintiffs' home
states (which are outside New York) or where the parties consent.
Thus, while the Court "cannot grant the Defendant's motion to
compel," it can issue "an order staying the litigation pending a
final outcome of the arbitration."
For the reasons he set forth, Magistrate Judge Gorenstein denied
Chase's motion to compel arbitration, and granted its motion to
stay all claims of the Plaintiffs Chen and Williams pending
arbitration.
A full-text copy of the Court's March 5, 2021 Opinion & Order is
available at https://tinyurl.com/2hb6ekhz from Leagle.com.
BAUSCH HEALTH: Glumetza Antitrust Litigation Underway
-----------------------------------------------------
Bausch Health Companies Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 24,
2021, for the fiscal year ended December 31, 2020, that the company
continues to defend a consolidated class action suit entitled, In
re Glumetza Antitrust Litigation, Case No. 3:19-cv-05822-WHA.
Between August 2019 and July 2020, eight (8) putative antitrust
class actions and four (4) non-class complaints naming the Company,
Salix Pharmaceuticals, Ltd., Salix Pharmaceuticals, Inc., and
Santarus, Inc., among other defendants, were filed or transferred
to the Northern District of California.
Three (3) of the class actions were filed by plaintiffs seeking to
represent a class of direct purchasers.
The purported classes of direct purchasers filed a consolidated
first amended complaint and a motion for class certification in
April 2020. The court certified a direct purchaser class in August
2020.
The putative class action complaints filed by end payer purchasers
have all been voluntarily dismissed. Three (3) of the non-class
complaints were filed by direct purchasers.
The fourth non-class complaint, asserting claims based on both
direct and indirect purchases, was filed by an insurer plaintiff in
July 2020 and subsequently amended in September 2020. In December
2020, the court denied the Company's motion to dismiss as to the
insurer plaintiff's direct claims but dismissed the insurer
plaintiff's indirect claims.
On February 2, 2021, the insurer plaintiff's motion for leave to
amend its complaint was denied. On February 8, 2021, the insurer
plaintiff filed an action in state court asserting state law
claims.
The federal actions, five (5) of which remain pending, have been
consolidated and coordinated in In re Glumetza Antitrust
Litigation, Case No. 3:19-cv-05822-WHA.
The lawsuits allege that a 2012 settlement of a patent litigation
regarding Glumetza(R) delayed generic entry in exchange for an
agreement not to launch an authorized generic of Glumetza(R) or
grant any other company a license to do so.
The complaints allege that the settlement agreement resulted in
higher prices for Glumetza(R) and its generic equivalent both prior
to and after generic entry. Both the class and non-class plaintiffs
seek damages under federal antitrust laws for claims based on
direct purchases.
All Plaintiffs have filed a motion for partial summary judgment
concerning market power, whereas all Defendants have filed a motion
for summary judgment on all claims against them.
The Company disputes the claims against it and intends to
vigorously defend these matters.
Bausch Health Companies Inc. develops, manufactures, and markets a
range of pharmaceutical, medical device, and over-the-counter (OTC)
products primarily in the therapeutic areas of eye health,
gastroenterology, and dermatology. The company operates through
four segments: Bausch + Lomb/International, Salix, Ortho
Dermatologics, and Diversified Products. The company was formerly
known as Valeant Pharmaceuticals International, Inc. and changed
its name to Bausch Health Companies Inc. in July 2018. Bausch
Health Companies Inc. was founded in 1983 and is headquartered in
Laval, Canada.
BAUSCH HEALTH: Indemnified by J&J in Shower to Shower(R) Litigation
-------------------------------------------------------------------
Bausch Health Companies Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 24,
2021, for the fiscal year ended December 31, 2020, that in
accordance with an indemnification agreement, Johnson & Johnson
will continue to vigorously defend Bausch in each of the remaining
actions related to Shower to Shower(R) body powder product that are
not voluntarily dismissed or subject to a grant of summary
judgment.
Since 2016, the Company has been named in a number of product
liability lawsuits involving the Shower to Shower(R) body powder
product acquired in September 2012 from Johnson & Johnson; due to
dismissals, only 28 of such product liability suits currently
remain pending, and these 28 matters are subject to the Johnson &
Johnson indemnification.
Potential liability (including its attorneys' fees and costs)
arising out of the covered Shower to Shower(R) lawsuits filed
against the Company is subject to certain indemnification
obligations of Johnson & Johnson owed to the Company, and legal
fees and costs will be paid by Johnson & Johnson.
The Company and Johnson & Johnson reached an agreement on April 17,
2019, regarding the scope of the indemnification relating to the
majority of the Shower to Shower(R) matters (the "Covered Matters")
and the Company has dismissed the demand for arbitration that the
Company filed against Johnson & Johnson to assert its rights to
indemnification. Johnson & Johnson will fully indemnify the Company
in the Covered Matters, which include: (i) personal injury and
products liability actions arising from alleged exposure to Shower
to Shower® prior to March 2020 and (ii) consumer fraud, consumer
protection, false advertising or other regulatory actions arising
out of the manufacture, use, or sale of Shower to Shower(R) up to
and including September 9, 2012.
The Company does not believe that the Covered Matters will have a
material impact on the Company's financial results going forward.
The various lawsuits include a number of cases, either originally
filed in or transferred to the In re Johnson & Johnson Talcum
Powder Litigation, Multidistrict Litigation 2738, pending in the
United States District Court for the District of New Jersey (MDL).
The Company and Bausch Health US were first named in a lawsuit
filed directly into the MDL alleging that the use of the Shower to
Shower(R) product caused the plaintiff to develop ovarian cancer.
The plaintiff agreed to a dismissal of all claims against the
Company and Bausch Health US in that matter without prejudice.
The Company has subsequently been named in one additional lawsuit,
originally filed in the District of Puerto Rico and subsequently
transferred into the MDL, but has not been served in that case. The
Company has also been named in eighteen additional lawsuits filed
directly into the MDL that have also not yet been served.
These lawsuits also include a number of matters filed in the
Superior Court of Delaware and the Superior Court of New Jersey
alleging that the use of Shower to Shower(R) caused the plaintiffs
to develop ovarian cancer. Nearly all of these actions have been
voluntarily dismissed. Presently, two cases remain pending in New
Jersey and one in Delaware. One of the New Jersey cases has not yet
been served.
The allegations in these cases generally include failure to warn,
design defect, negligence, gross negligence, breach of express and
implied warranties, civil conspiracy concert in action, negligent
misrepresentation, wrongful death, and punitive damages.
In addition, these lawsuits also include a number of cases filed in
certain state courts in the United States (including the Superior
Courts of California, Delaware and New Jersey); the District Court
of Louisiana; the Supreme Court of New York (Niagara County); the
District Court of Oklahoma City, Oklahoma; the South Carolina Court
of Common Pleas (Richland County); the Ohio Court of Common Pleas
(Cuyahoga County); and the District Court of Nueces County, Texas
(transferred to the asbestos multidistrict litigation docket in the
District Court of Harris County, Texas for pre-trial purposes)
alleging use of Shower to Shower(R) and other products resulted in
the plaintiffs developing mesothelioma.
The Company has been successful in obtaining voluntary dismissals
in most of these cases or the plaintiffs have not opposed summary
judgment. Presently, four cases remain pending in the Superior
Court of New Jersey, and one case in the Court of Common Pleas of
Cuyahoga County, Ohio, in which a Notice of Voluntary Dismissal
Without Prejudice has been agreed to between the parties.
The allegations in these cases generally include design defect,
manufacturing defect, failure to warn, negligence, and punitive
damages, and in some cases breach of express and implied
warranties, misrepresentation, and loss of consortium. The damages
sought by the various plaintiffs include compensatory damages,
including medical expenses, lost wages or earning capacity, and
loss of consortium.
In addition, plaintiffs seek compensation for pain and suffering,
mental anguish anxiety and discomfort, physical impairment and loss
of enjoyment of life.
Plaintiffs also seek pre- and post-judgment interest, exemplary and
punitive damages, and attorneys' fees.
Additionally, two proposed class actions have been filed in Canada
against the Company and various Johnson & Johnson entities (one in
the Supreme Court of British Columbia and one in the Superior Court
of Quebec). The Company also acquired the rights to the Shower to
Shower(R) product in Canada from Johnson & Johnson in September
2012.
In the British Columbia matter, the plaintiff sought to certify a
proposed class action on behalf of persons in British Columbia and
Canada who have purchased or used Johnson & Johnson's Baby Powder
or Shower to Shower(R), including their estates, executors and
personal representatives, and is alleging that the use of this
product increases certain health risks.
On November 7, 2020, the British Columbia court issued a judgment
declining to certify a class as to the Company or Shower to
Shower(R), and at this time no appeal of that judgment has been
filed. In the Quebec matter, the plaintiff sought to certify a
proposed class action on behalf of persons in Quebec who have used
Johnson & Johnson's Baby Powder or Shower to Shower(R), as well as
their family members, assigns and heirs, and is alleging negligence
in failing to properly test, failing to warn of health risks, and
failing to remove the products from the market in a timely manner.
A certification (also known as authorization) hearing was held in
the Quebec matter and the Court certified (or as stated under
Quebec law, authorized) the bringing of a class action by a
representative plaintiff on behalf of people in Quebec who have
used Johnson & Johnson's Baby Powder and/or Shower to Shower(R) in
their perineal area and have been diagnosed with ovarian cancer
and/or family members, assigns and heirs. The plaintiffs in these
actions are seeking awards of general, special, compensatory and
punitive damages.
In accordance with the indemnification agreement, Johnson & Johnson
will continue to vigorously defend the Company in each of the
remaining actions that are not voluntarily dismissed or subject to
a grant of summary judgment.
Bausch Health Companies Inc. develops, manufactures, and markets a
range of pharmaceutical, medical device, and over-the-counter (OTC)
products primarily in the therapeutic areas of eye health,
gastroenterology, and dermatology. The company operates through
four segments: Bausch + Lomb/International, Salix, Ortho
Dermatologics, and Diversified Products. The company was formerly
known as Valeant Pharmaceuticals International, Inc. and changed
its name to Bausch Health Companies Inc. in July 2018. Bausch
Health Companies Inc. was founded in 1983 and is headquartered in
Laval, Canada.
BAUSCH HEALTH: Timber Hill Class Action Ongoing
-----------------------------------------------
Bausch Health Companies Inc. said in its Form 10-K report filed
with the U.S. Securities and Exchange Commission on February 24,
2021, for the fiscal year ended December 31, 2020, that the company
continues to defend a putative class action suit entitled, Timber
Hill LLC, v. Valeant Pharmaceuticals International, Inc., et al.
On June 6, 2018, a putative class action was filed in the U.S.
District Court for the District of New Jersey against the Company
and certain current or former officers and directors.
This action, captioned Timber Hill LLC, v. Valeant Pharmaceuticals
International, Inc., et al., (Case No. 18-cv-10246), asserts
securities fraud claims under Sections 10(b) and 20(a) of the
Exchange Act on behalf of a putative class of persons who purchased
call options or sold put options on the Company's common stock
during the period January 4, 2013 through August 11, 2016.
On June 11, 2018, this action was consolidated with In re Valeant
Pharmaceuticals International, Inc. Securities Litigation, (Case
No. 15-cv-07658). On January 14, 2019, the defendants filed a
motion to dismiss the Timber Hill complaint.
Briefing on that motion was completed on February 13, 2019.
On August 15, 2019, the Court denied the motion to dismiss the
Timber Hill action, holding that this complaint was a legal nullity
as a result of the June 11, 2018 consolidation order.
No further updates were provided in the Company's SEC report.
Bausch Health Companies Inc. develops, manufactures, and markets a
range of pharmaceutical, medical device, and over-the-counter (OTC)
products primarily in the therapeutic areas of eye health,
gastroenterology, and dermatology. The company operates through
four segments: Bausch + Lomb/International, Salix, Ortho
Dermatologics, and Diversified Products. The company was formerly
known as Valeant Pharmaceuticals International, Inc. and changed
its name to Bausch Health Companies Inc. in July 2018. Bausch
Health Companies Inc. was founded in 1983 and is headquartered in
Laval, Canada.
BAYER CROPSCIENCE: Flaten Sues Over Crop Input Pice Manipulation
----------------------------------------------------------------
Dan Flaten, on behalf of himself individually and all others
similarly situated, Plaintiff, 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., Growmark FS, LLC, Simplot AB Retail
Sub, Inc. and Tenkoz, Inc., Defendants, Case No. 21-cv-00404, (D.
Minn., February 11, 2021), is a class action that arises from an
unlawful agreement between Defendants (manufacturers, wholesalers,
and retailers of Crop Inputs) to artificially increase and fix the
prices of seeds and crop protection chemicals such as fungicides,
herbicides and insecticides used by farmers.
Bayer CropScience, Corteva Syngenta Corporation and BASF are
manufacturers of crop input while Cargill, Winfield, Univar
Solutions, CHS, Nutrien AG Solutions, Growmark, Simplot AB Retail,
Tenkoz and Federated Co-Operatives are its wholesalers and
retailers.
Flaten alleges that Defendants' distribution process keeps crop
input prices inflated at anti-competitive levels, denied farmers
access to relevant market information, including transparent
pricing terms that would allow competition and better-informed
purchasing decisions and information about seed relabeling
practices that would enable farmers to know if they are buying
newly developed seeds or identical seeds repackaged under a new
brand name and sold for a higher price. Defendants allegedly
conspired and coordinated to boycott online Crop Inputs sales
platforms because of the threat they posed to their market position
and price control. [BN]
Plaintiff is represented by:
Daniel E. Gustafson, Esq.
Michelle J. Looby, Esq.
Daniel J. Nordin, Esq.
Mickey L. Stevens, Esq.
Daniel C. Hedlund, Esq.
GUSTAFSON GLUEK PLLC
Canadian Pacific Plaza
120 South Sixth Street, Suite 2600
Minneapolis, MN 55402
Telephone: (612) 333-8844
Email: dgustafson@gustafsongluek.com
mlooby@gustafsongluek.com
dnordin@gustafsongluek.com
mstevens@gustafsongluek.com
dhedlund@gustafsongluek.com
- and -
Richard M. Paul III, Esq.
Ashlea G. Schwarz, Esq.
PAUL LLP
601 Walnut Street, Suite 300
Kansas City, MO 64106
Telephone: 816-984-8100
Fax: (816) 984-8101
Email: Rick@PaulLLP.com
Ashlea@PaulLLP.com
BENIHANA NATIONAL: Parties Agree to Extend Class Cert. Bid Filing
-----------------------------------------------------------------
In the class action lawsuit captioned as JORGE A. RAMIREZ and ANGEL
SANDOVAL-RIVERA, individually and on behalf of others similarly
situated, v. BENIHANA NATIONAL CORP.; and DOES 1 through 100,
inclusive, Case No. 3:18-cv-05575-MMC (N.D. Calif.), the Parties
stipulated and agreed for an extension of the Plaintiffs' motion
for class certification deadline and setting of related filing
deadlines as follows:
-- The deadline to file the Plaintiffs' Motion for Class
Certification be extended from September 17, 2021 to
January 17, 2022;
-- The deadline to file the Defendant's Opposition to the
Plaintiffs' Motion for Class Certification be extended
from November 2, 2021 to March 2, 2022;
-- The deadline to file the Plaintiffs' Reply to the
Defendant's Opposition to the Plaintiffs' Motion for Class
Certification be extended from November 23, 2021 to March
23, 2022.
The Court originally set the deadline to file the Plaintiffs'
Motion for Class Certification for March 6, 2020. On December 26,
2019, the Parties filed their Stipulation for an Extension of
Plaintiffs' Motion for Class Certification Filing Deadline and
Setting of Related Filing Deadlines.
Benihana National Corporation is located in Miami, Florida, and is
part of the Restaurants Industry.
A copy of the Parties motion dated March 3, 2020 is available from
PacerMonitor.com at https://bit.ly/3lfRrQW at no extra charge.[CC]
The Plaintiffs are represented by:
Michael H. Kim, Esq.
Adam K. Tanouye, Esq.
MICHAEL H. KIM, P.C.
475 El Camino Real, Suite 309
Millbrae, CA 94030
Telephone: (650) 697-8899
Facsimile: (650) 697-8896
E-mail: mkim@mhklawyers.com
tanouye@mhklawyers.com
The Attorneys for the Defendant Benihana National, are:
Constance E. Norton, Esq.
Angela J. Rafoth, Esq.
Chad Greeson, Esq.
LITTLER MENDELSON, P.C.
333 Bush Street, 34th Floor
San Francisco, CA 94104
Telephone: (415) 433-1940
E-mail: cnorton@littler.com
arafoth@littler.com
cgreeson@littler.com
BIG PICTURE: Reply to Renewed Bid for Class Cert. Due March 22
--------------------------------------------------------------
In the class action lawsuit captioned as LULA WILLIAMS, et al., v.
BIG PICTURE LOANS, LLC, et al., Case No. 3:17-cv-00461-REP (E.D.
Va.), the Hon. Judge Robert E. Payne entered an order is granting
in part and denying in part the joint motion for extension of time
to file opposition and replies to the renewed motion for class
certification and motions to compel privileged and work products.
The joint motion is granted with respect to the Plaintiffs' reply
to the pending renewed motion for class certification and it is
ordered that the Defendants shall file, by March 22, 2021, their
reply to the Plaintiffs' renewed motion for class certification of
claims against defendant Matt Martorello. The Joint motion is
denied as moot with respect to all other extension requests.
Big Picture is a tribal lender that offers personal loans.
A copy of the Court's order dated March 3, 2020 is available from
PacerMonitor.com at https://bit.ly/3eB4PO6 at no extra charge.[CC]
BIT DIGITAL: Pawar Law Reminds Investors of March 22 Deadline
-------------------------------------------------------------
Pawar Law Group on March 2 disclosed that a class action lawsuit
has been filed on behalf of shareholders who purchased shares of
Bit Digital, Inc. (NASDAQ: BTBT) from December 21, 2020 through
January 8, 2021, inclusive (the "Class Period"). The lawsuit seeks
to recover damages for Bit Digital, Inc. investors under the
federal securities laws.
To join the class action, go here or call Vik Pawar, Esq. toll-free
at 888-589-9804 or email info@pawarlawgroup.com for information on
the class action.
According to the lawsuit, defendants made false and/or misleading
statements and/or failed to disclose that: Bit Digital overstated
the extent of its a bitcoin mining operation; as a result,
defendants' positive statements about the Company's business,
operations, and prospects were materially misleading and/or lacked
a reasonable basis. When the true details entered the market, the
lawsuit claims that investors suffered damages.
If you wish to serve as lead plaintiff, you must move the Court no
later than March 22, 2021. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation.
No class has been certified. Until a class is certified, you are
not represented by counsel unless you hire one. You may hire
counsel of your choice. You may also do nothing at this time and be
an absent member of the class. Your ability to share in any future
recovery is not dependent upon being a lead plaintiff.
Pawar Law Group represents investors from around the world.
Attorney advertising. Prior results do not guarantee or predict a
similar outcome with respect to any future matter.
Contact:
Vik Pawar, Esq.
Pawar Law Group
20 Vesey Street, Suite 1410
New York, NY 10007
Tel: (917) 261-2277
Fax: (212) 571-0938
info@pawarlawgroup.com [GN]
BP EXPLORATION: Court Dismisses With Prejudice Alderman Class Suit
------------------------------------------------------------------
Judge Terry F. Moorer of the U.S. District Court for the Southern
District of Alabama, Southern Division, dismissed with prejudice
the case, JOSHUA ALDERMAN, Plaintiff v. BP EXPLORATION & PRODUCTION
INC., et al., Defendants, Civil Action No. 1:20-cv-00454-TFM-MU-C
(S.D. Ala.).
Pending before the Court is the parties' Stipulation of Dismissal
With Prejudice, filed March 5, 2021. The Rules of Civil Procedure
permit a plaintiff to voluntarily dismiss the action without an
order of the court by filing a notice of dismissal before the
opposing party serves either an answer or a motion for summary
judgment" or "a stipulation signed by all parties who have
appeared.
Judge Moorer finds that the joint stipulation is signed by both
sides and the Plaintiff reserves his remaining rights that he may
have under the Deepwater Horizon Medical Benefits Class Action
Settlement Agreement. Consequently, by operation of Fed. R. Civ.
P. 41, the Judge holds that the action has been dismissed in
accordance with the joint notice. Therefore, the claims in the
case are dismissed with prejudice with each party to bear their own
attorneys' fees and costs.
The Clerk of the Court is directed to close the case.
A full-text copy of the Court's March 5, 2021 Order is available at
https://tinyurl.com/y33xyky7 from Leagle.com.
BRANCH BANKING: Dismissal & Arbitration Ruling in Sevier Reversed
-----------------------------------------------------------------
In the case, SEVIER COUNTY SCHOOLS FEDERAL CREDIT UNION; SUSANNE
MUNSON; GEOFFREY WOLPERT; CHARLES MCGAHA; CHARLENE MCGAHA; ROBIN
NICHOLS; GREGORY NICHOLS; REX NICHOLS; SARAH MORRISON,
Plaintiffs-Appellants v. BRANCH BANKING AND TRUST COMPANY,
Defendant-Appellee, Case No. 20-5174 (6th Cir.), the U.S. Court of
Appeals for the Sixth Circuit reverses the judgment of the district
court granting the Defendant's to dismiss the complaint and to
compel arbitration, and remands the case for further proceedings.
The case is a putative class action brought by the Sevier County
Schools Federal Credit Union and other account holders against the
BB&T. The Plaintiffs allege that BB&T failed to honor a commitment
made by one of its predecessors, the First National Bank of
Gatlinburg ("FNB"), promising that the annual interest rate on
certain high-interest Money Market Investment Accounts was
guaranteed to "never fall below 6.5%."
In 1989, the Plaintiffs opened Money Market Investment Accounts
("MMIAs") with FNB. FNB guaranteed that the MMIAs' annual rate of
interest would "never fall below 6.5%." The original contract was
two pages in length, did not include any provision limiting an
account holder's right to enforce the agreement in court, and
included the change-of-terms provision.
In March 1997, FNB merged with BankFirst of Tennessee. BankFirst
continued paying 6.5% annual interest on the MMIAs for the next
four years. In July 2001, BankFirst merged with BB&T. BB&T was
aware of the MMIAs and its obligations to former MMIA-holders
because, three days after the merger, BB&T converted those accounts
to "Money Rate Savings Accounts" ("MRSAs").
Upon acquiring BankFirst in 2001, BB&T claims that it sent a Bank
Services Agreement ("BSA") to each account holder. The 2001 BSA
stated that, by continuing to maintain an account with BB&T, the
account holders agreed to the 2001 BSA's terms. The 2001 BSA also
included the arbitration provision.
BB&T amended the BSA in 2004. The 2004 BSA, among other terms,
added a class-action waiver and abolished all "special, incidental,
consequential, punitive or indirect damages, including without
limitation loss of profits."
In April 2017, BB&T once again amended the BSA. This amendment
made massive changes to the BSA, including an amendment to the
arbitration provision. BB&T allegedly sent notice of the 2017
Amendment to each customer. As with the prior changes, the 2017
Amendment provided that continued use of the account after
receiving notice constituted acceptance of the changes. All of the
Plaintiffs maintained their MRSAs following the 2017 Amendment.
From its initial acquisition of BankFirst in July 2001 until
January 2018, BB&T -- like BankFirst -- respected the 6.5% interest
rate for the former MMIAs. In January 2018, however, the
Plaintiffs were notified that the annual percentage rate applicable
to their accounts would soon drop by more than five percentage
points -- from 6.5% to 1.05% -- in March 2018. They were also
informed that, starting in April 2019, the rates would
"automatically adjust to BB&T's standard balance tiers, as well as
to the current standard variable rate of the interest and APY
[annual percentage yield]." For accounts with balances of $1,000
and up, these "standard balance tiers" reflected the industry's
then-current interest rate -- only 0.01% per year.
In March 2019, the Plaintiffs filed an action in the Circuit Court
for Sevier County, Tennessee on behalf of themselves and all other
similarly situated persons. They argued that BB&T is liable for
breach of contract due to its actions in lowering the guaranteed
interest rate.
BB&T removed the lawsuit to federal court in a timely manner. Soon
thereafter, the bank filed a motion to dismiss and to compel
arbitration, which the district court granted. The district court
had diversity-of-citizenship jurisdiction under 28 U.S.C. Section
1332. The Sixth Circuit has appellate jurisdiction pursuant to 28
U.S.C. Section 1291.
The Sixth Circuit explains that in Tennessee and generally, two
essential elements in the formation of a valid contract are (1)
consideration and (2) mutual assent. The Plaintiffs argue that
both consideration and mutual assent are lacking with regard to the
arbitration provision.
The Sixth Circuit opines that they are wrong about consideration,
but are correct as to the lack of mutual assent. First, the
Plaintiffs' argument that the BSAs are not binding because of a
lack of consideration regarding their agreement to arbitrate is
unavailing. Both state and federal courts have consistently found
that consideration exists so long as the arbitration agreement
binds both parties. Because the arbitration provision within the
2017 Amendment binds both the Plaintiffs and BB&T, there is
adequate consideration for the provision.
Second, what is lacking in the case is the Plaintiffs' consent to
the arbitration provision in the BSAs. This issue is controlled by
Tennessee law. Therefore, because there was no mutual assent, the
2001 BSA and its subsequent amendments are invalid to the extent
that they materially changed the terms of the original agreement.
One final point, the Sixth Circuit opines that the dissent's
contrary conclusion is primarily based on its assertion that the
Plaintiffs' inaction by continuing to maintain their accounts
should be deemed an acceptance of BB&T's unilaterally imposed
arbitration provision. This assertion, however, is not only
inconsistent with Tennessee law, but is completely neutralized by
BB&T's own inaction for sixteen and a half years.
For this long period of time (between July 2001 and January 2018),
BB&T continued to honor the 6.5% interest-rate guarantee. The
Plaintiffs were thus lulled into not giving a thought to the
unilateral addition of the arbitration provision in the BSA. Why,
after all, would they have any reason to believe that BB&T might
someday attempt to end a guarantee that had been honored by BB&T
ever since it first acquired the accounts in 2001? It is a classic
case of the pot calling the kettle black, and is the antithesis of
good faith and fair dealing.
In conclusion, the Sixth Circuit opines that the Plaintiffs might
well prevail on the merits of their dispute with BB&T because, on
the surface at least, the bank is trying to wriggle out of a
commitment made years ago to these Plaintiffs by FNB. But the
issue presently before t is not the merits of this dispute;
instead, the Court must decide whether the merits should be
resolved by a court or by an arbitrator. This is because BB&T's
BSA specifies that all disputes between the parties "shall be
determined by arbitration."
For all of the reasons set forth above, the Sixth Circuit reverses
the district court's grant of BB&T's motion to dismiss and compel
arbitration, and remands the case for further proceedings
consistent with its opinion.
A full-text copy of the Court's March 5, 2021 Opinion is available
at https://tinyurl.com/29efhtsf from Leagle.com.
ARGUED: Gregory Brown, LOWE YEAGER & BROWN PLLC, in Knoxville,
Tennessee, for Appellants.
John S. Hicks -- jhicks@bakerdonelson.com -- BAKER, DONELSON,
BEARMAN, CALDWELL & BERKOWTIZ, P.C., in Nashville, Tennessee, for
Appellee.
ON BRIEF: Gregory Brown, Christopher Field, W. Scott Hickerson,
LOWE YEAGER & BROWN PLLC, Knoxville, Tennessee, Donald K. Vowell --
info@vowell-law.com -- THE VOWELL LAW FIRM, in Knoxville,
Tennessee, for Appellants.
John S. Hicks, Christopher E. Thorsen -- cthorsen@bakerdonelson.com
-- BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWTIZ, P.C., Nashville,
Tennessee, Nicholas W. Diegel -- ndiegel@bakerdonelson.com --
BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWTIZ, P.C., in Knoxville,
Tennessee, for Appellee.
CAPITAL ONE: Court Dismisses With Prejudice Fensterer Class Suit
----------------------------------------------------------------
In the case, ELLEN FENSTERER, an individual; on behalf of herself
and all others similarly situated, Plaintiff v. CAPITAL ONE BANK
(USA), N.A., Defendant, Case No. 20-5558 (RMB/KMW) (D.N.J.), Judge
Renee Marie Bumb of the U.S. District Court for the District of New
Jersey, Camden Vicinage, granted Capital One's Motion to Dismiss
the First Amended Class Action Complaint.
The dispute concerns the COVID-19 pandemic and various safety
measures taken to reduce the global spread of the virus. In
January 2020, Plaintiff Fensterer purchased three British Airways
airline tickets from New York to Athens, Greece scheduled for April
3, 2020, with a return flight booked for April 13, 2020. The
Plaintiff bought these tickets through Capital One Venture Card
Rewards. In total, she charged $4,906.31 to her Capital One credit
card and redeemed rewards points for the airline tickets.
In March 2020, President Donald Trump signed a COVID-19 travel
restriction, which significantly limited travel between the United
States and Europe. This restriction went into effect on March 13,
2020 and was scheduled to last for 30 days. As a result, the
Plaintiff would be unable to use her airline tickets.
The Plaintiff alleges that she first contacted Capital One shortly
after the travel restrictions were announced. Although she spoke
with a Capital One representative, she was told to contact customer
service again in two weeks. About two weeks later, she called
Capital One again. On this call, she spoke with another Capital
One representative, who purportedly informed her that British
Airways was offering only travel vouchers and not cash refunds.
The Plaintiff then called British Airways. During this call, she
learned that because she purchased her tickets through Capital One,
British Airways would not assist her. The representative did,
however, allegedly inform the Plaintiff that all customers who
booked directly through British Airways would receive a full
refund, not a voucher. he Complaint then alleges that the Plaintiff
contacted Capital One again, who now told her that neither her
rewards points, nor credit card charges for the tickets would be
refunded.
In the putative class action, the Plaintiff seeks to bring a claim
"on behalf of a Class consisting of all Capital One Venture Card
holders in the state of New Jersey who purchased airline travel
using their Capital One Venture Card for travel on flights that
later were canceled as a result of COVID-19 travel restrictions."
She alleges violations of the New Jersey Consumer Fraud Act, Unjust
Enrichment, Conversion, Fraudulent Misrepresentation, and Breach of
Contract.
In its present motion, the Defendant seeks to dismiss the complaint
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It
argues that the Court lacks subject matter jurisdiction over the
Plaintiff's claims because British Airways has fully refunded the
Plaintiff's purchase. After British Airways approved this refund,
Capital One then processed that refund and credited Fensterer's
Capital One account for the exact amount of cash and reward points
that Fensterer used to purchase the cancelled flight tickets.
This, the Defendant concludes, moots this dispute.
In response, the Plaintiff argues that any alleged refund is
outside the four corners of the complaint and cannot be considered
in resolving the Defendant's motion. She then contends that, even
if the Court finds that she received a refund, she still has a
concrete interest in the outcome of the case and, because she has
alleged claims that relate back, she can still serve as an adequate
class representative.
Judge Bumb considers the signed declaration and its supporting
documentation that the Defendant has filed. The Defendant's
declaration states that the Plaintiff was credited "the exact
amount of funds and reward points that she used to purchase the
cancelled flight tickets from British Airways." The refund has now
been issued, and the Plaintiff has received both a "reversal of
charges and a return of Reward points. The live Complaint states
that the Plaintiff was charged $4,906.31 for her purchase, and an
exhibit to the Defendant's declaration clearly shows a $4,906.31
refund. A related exhibit also shows a complete refund of all
reward points.
On the record, Judge Bumb must accept the Defendant's factual
challenge to subject matter jurisdiction. The Plaintiff no longer
has a concrete interest in the outcome in the case because she has
received the very refund she was seeking. The First Amended Class
Action Complaint repeatedly argues that she is entitled to a refund
for her canceled flights. This has been done. Therefore, the
Plaintiff's individual claims are moot.
Finally, the Plaintiff contends that, even if her claims are moot,
she should continue to serve as the class representative in the
case. Specifically, she argues that the Defendant attempted to
"pick-off" her claims to evade judicial review of its actions.
Therefore, Plaintiff concludes, her claims should relate back to
when she still had a live dispute, and the case can still proceed
with her as the class representative.
Judge Bumb explains that the "picking off" exception requires a
situation where "a plaintiff's individual claim for relief is
acutely susceptible to mootness by the actions of a defendant. The
concern underlying this doctrine is well understood: "I defendants
were allowed to 'pick off' would-be class representatives, the
defendants might be able to ensure `that no remedy could ever be
provided for continuing abuses.'"
Those concerns, however, are not present, the Judge finds. The
Defendant's declaration clearly states that Capital One did not
issue the refund, but instead processed British Airways's issuance
of a refund. As a matter of policy, this difference is noteworthy,
as it does not raise the same concerns that the picking off
exception is intended to address. That the refund appeared in the
Plaintiff's Capital One account -- the same account used to
purchase the airline tickets -- does not mean that Capital One
issued the refund. Therefore, the Judge will instead apply the
"general rule" of mootness: "the mooting of named plaintiff's claim
prior to class certification moots the entire case."
Having found that the Court lacks subject matter jurisdiction over
the matter, Judge Bumb does not address the Defendant's remaining
arguments.
Thus, for the foregoing reasons, the Defendant's Motion to Dismiss
is granted. The First Amended Class Action Complaint is dismissed
with prejudice. An appropriate Order accompanies the Opinion.
A full-text copy of the Court's March 5, 2021 Opinion is available
at https://tinyurl.com/fwf6xujn from Leagle.com.
Kimmel & Silverman, P.C., Amy Lynn Bennecoff Ginsburg, Esq. --
aginsburg@creditlaw.com -- Jacob U. Ginsburg, Esq., in Ambler,
Pennsylvania, Attorneys for Plaintiff.
McGuire Woods LLP, Philip Andrew Goldstein, Esq. --
pagoldstein@mcguirewoods.com -- in New York City, Attorney for
Defendant.
CET INCORPORATED: Faces Kammer Suit Over Failure to Pay Overtime
----------------------------------------------------------------
The case, EUGENE KAMMER, individually and on behalf of other
similarly situated employees, Plaintiff v. CET INCORPORATED,
Defendant, Case No. 2:21-cv-00083 (N.D. Ind., March 4, 2021) arises
from the Defendant's alleged unlawful pay practices and policies
that violated the Fair Labor Standards Act.
The Plaintiff was employed by the Defendant as a labor shop foreman
at the Arcelor's Burns Harbor, Indiana facility from on or about
February 2017 until on or about May 1, 2020.
According to the complaint, the Plaintiff was an hourly paid
employee during his employment with the Defendant, but he was paid
varying hourly rates during different time periods of his
employment. Despite working more than 40 hours in a week, he was
only paid his straight time rate. The Defendant willfully failed to
pay him overtime compensation at one and one-half times his regular
rate of pay for all hours he worked over 40 in a workweek, the suit
says.
The Plaintiff brings this complaint as a collective action on
behalf of himself and all other similarly situated hourly employees
who were paid straight time for overtime seeking to recover all
unpaid back wages at the applicable overtime rate, as well as
liquidated damages, reasonable attorneys' fees and litigation
costs, and other relief deemed just and equitable by the Court.
CET Incorporated is a consulting engineering firm that provides a
full spectrum of professional services that support heavy
industrial, commercial and municipal clients. [BN]
The Plaintiff is represented by:
Douglas M. Werman, Esq.
WERMAN SALAS P.C.
77 W. Washington St., Suite 1402
Chicago, IL 60602
Tel: (312) 419-1008
E-mail: dwerman@flsalaw.com
CGH TECHNOLOGIES: Pennington Bid to Certify Collective Class Tossed
-------------------------------------------------------------------
In the class action lawsuit captioned as MATTHEW PENNINGTON v. CGH
TECHNOLOGIES, INC., Case No. 6:19-cv-02056-PGB-EJK (M.D. Fla.), the
Hon. Judge Paul G. Byron entered an order:
1. adopting The Report and Recommendation filed February 12,
2021 and confirming it as a part of the Order;
2. denying the Plaintiff's Motion to Dismiss the Defendant's
Counterclaims; and
3. denying the Plaintiff's Motion for Conditional
Certification of Collective Class and Issuance of Notice.
CGH Technologies is an information engineering and management
support company located in Washington, D.C.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at https://bit.ly/38ASGFn at no extra charge.[CC]
COLGATE-PALMOLIVE CO: Opposition to Class Cert. Bid Due April 8
---------------------------------------------------------------
In the class action lawsuit captioned as SHARON WILLIS,
individually and on behalf of all others similarly
situated, v. COLGATE-PALMOLIVE CO., Case No. 2:19-cv-08542-JGB-RAO
(C.D. Calif.), the Hon. Judge Jesus G. Bernal entered an order
modifying the remaining class certification briefing deadlines as
follows:
1. Colgate's deadline to file its opposition to the
Plaintiff's motion for class certification shall be
extended to April 8, 2021; and
2. The Plaintiff shall file her reply by May 10, 2021, and
the hearing on Plaintiff’s motion shall be rescheduled to
June 7, 2021, at 9:00 a.m.
The Court has reviewed and considered the stipulation submitted by
the Plaintiff Sharon Willis and Defendant Colgate-Palmolive
Company. There appearing good cause for the scheduling
modifications described in the parties' stipulation, says Judge
Bernal.
Colgate-Palmolive Company is an American multinational consumer
products company headquartered on Park Avenue in Midtown Manhattan,
New York City. It specializes in the production, distribution and
provision of household, health care, personal care and veterinary
products.
A copy of the Court's order dated March 3, 2020 is available from
PacerMonitor.com at https://bit.ly/3eFV8Ou at no extra charge.[CC]
COLLINS & AIKMAN: SEC's Bid to Transfer Funds for Disbursement OK'd
-------------------------------------------------------------------
In the case, SECURITIES AND EXCHANGE COMMISSION, Plaintiff v.
COLLINS & AIKMAN CORPORATION, DAVID A. STOCKMAN, J. MICHAEL STEPP,
GERALD E. JONES, DAVID R. COSGROVE, ELKIN B. McCALLUM, PAUL C.
BARNABA, JOHN G. GALANTE, CHRISTOPHER M. WILLIAMS, AND THOMAS V.
GOUGHERTY, Defendants, Case No. 1:07-cv-02419 (JMF) (S.D.N.Y.),
Judge Jesse M. Furman of the U.S. District Court for the Southern
District of New York granted the United States Securities and
Exchange Commission's Motion for Order Approving Transfer of Funds
for Disbursement of Distribution Fund.
The Clerk of the Court will issue a check on the Court Registry
Investment System ("CRIS") Account Number 1:07-cv-02419 under the
case name designation "SEC v. Collins & Aikman, et al.," for the
amount of $2,667,666.64 payable to "SEC v Collins and Aikman Fair
Fund" for payment for disbursement to the Eligible Claimants listed
in the Payment File.
The Clerk will direct the payment of $2,667,666.64 from the CRIS
account to the escrow account "SEC v Collins and Aikman Fair Fund"
at The Huntington National Bank for distribution to the Eligible
Claimants in accordance with the Distribution Plan.
Epiq Class Action and Claims Solutions, Inc. will deposit these
funds in accordance with paragraphs 73 to 75 of the Plan, into the
escrow account at Huntington Bank in the name of "SEC v Collins &
Aikman Fair Fund" and bearing the Employer Identification Number of
the Qualified Settlement Fund, as custodian for the benefit of
investors allocated a distribution pursuant to the plan in SEC v.
Collins & Aikman, et al., Civ. Act. No. 1:07-cv-02419-JMF (S.D.
NY). It will also establish a separate deposit account titled "SEC
v Collins and Aikman Fair Fund" for the purpose of funding and
processing checks to be distributed to Eligible Claimants pursuant
to the Plan.
Epiq will disburse these funds to Eligible Claimants in accordance
with the terms of the Plan and the Payment File reviewed and
approved by the Commission.
The Clerk will transmit the funds by wire transfer to: Account
Name: SEC v Collins and Aikman Fair Fund Bank: The Huntington
National Bank The Commission's counsel will provide to the Clerk of
the Court the necessary banking information for the wire transfer
of the funds.
A full-text copy of the Court's March 5, 2021 Order is available at
https://tinyurl.com/hj274cea from Leagle.com.
COMCAST CABLE: Patrick Seeks to Recover CSRs Unpaid Overtime
------------------------------------------------------------
The case, JESSICA PATRICK, individually and on behalf of all others
similarly situated, Plaintiff v. COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC, Defendant, Case No. 1:21-cv-01236 (N.D. Ill.,
March 4, 2021) challenges the Defendant's alleged unlawful pay
policies and practices that violated the Fair Labor Standards Act
and the Illinois Minimum Wage Law.
The Plaintiff was employed by the Defendant as an hourly-paid
Customer Service Representative (CSR) from July 2005 until January
2021.
The Plaintiff asserts that he and other similarly situated
hourly-paid CSR regularly worked in excess of 40 hours per week
throughout their tenure with the Defendant. Although the Defendant
paid them overtime compensation at one and one-half times their
regular rate of pay for all hours they worked in excess of 40 per
week, they were underpaid by the Defendant because it failed to
include in their regular rate the non-discretionary bonuses they
received when calculating their overtime pay, the Plaintiff added.
The Plaintiff brings this complaint as a collective action on
behalf of himself and all other similarly situated CSRs to recover
unpaid overtime premiums, liquidated damages, reasonable attorneys'
fees and costs, and other relief as the Court may deem just and
proper.
Comcast Cable Communications Management, LLC is a
telecommunications company. [BN]
The Plaintiff is represented by:
Josh Sanford, Esq.
SANFORD LAW FIRM, PLLC
Kirkpatrick Plaza
10800 Financial Centre Pkwy, Suite 510
Little Rock, AR 72211
Tel: (800) 615-4946
Fax: (888) 787-2040
E-mail: josh@sanfordlawfirm.com
CONTINENTAL SERVICE: Goldstein Sues Over Illegal Collection Letter
------------------------------------------------------------------
CHANA GOLDSTEIN, individually and on behalf of all others similarly
situated, Plaintiff v. CONTINENTAL SERVICE GROUP, INC. and JOHN
DOES 1-25, Defendants, Case No. 1:21-cv-01171 (E.D.N.Y., March 4,
2021) is a class action complaint brought against the Defendants
for their alleged willful, negligent and/or intentional violations
of the Fair Debt Collection Practices Act.
The Plaintiff has an alleged debt incurred to Alliant Credit Union
for personal, family or household purposes on behalf of creditors
using the United States Postal Services, telephone and Internet.
Accordingly, Alliant Credit Union contracted with the Defendant to
collect the alleged debt. Subsequently on or about March 5, 2020,
the Defendant sent the Plaintiff an initial collection letter
regarding the alleged debt owed to Alliant Credit Union. Although
the letter ostensibly provides the notices as required by the law,
but there are addresses listed for the Defendant in two different
cities which are specifically identified as the incorrect address
to send disputes, thereby confuses the Plaintiff as to how to
properly dispute the debt and exercise her rights, the suit says.
The Plaintiff claims that because of the Defendant's alleged
unlawful conduct, she has suffered emotional harm, and expended
time, money, and effort in determining the proper course. Thus, on
behalf of herself and all others similarly situated, the Plaintiff
seeks statutory and actual damages, litigation costs and reasonable
attorneys' fees, pre- and post-judgment interest, and other relief
as the Court may deem just and proper.
Continental Service Group, Inc. is a debt collector. [BN]
The Plaintiff is represented by:
Raphael Deutsch, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500 ext. 121
Fax: (201) 282-6501
E-mail: rdeutsch@SteinSaksLegal.com
CORECIVIC INC: Fourth Circuit Affirms Dismissal of Ndambi FLSA Suit
-------------------------------------------------------------------
In the case, DESMOND NDAMBI; MBAH EMMANUEL ABI; NKEMTOH MOSES
AWOMBANG, individually and on behalf of all others similarly
situated, Plaintiffs-Appellants, and IVAN CHACON CHACON; PRUDENCIO
RAMIREZ; HONORE OTAYEMA RECINOS; BOKOLE UMBA DIEU, Plaintiffs v.
CORECIVIC, INC., Defendant-Appellee, Case No. 19-2207 (4th Cir.),
the U.S. Court of Appeals for the Fourth Circuit affirms the
district court's dismissal of the case on the grounds that the
circuit and others have declined to extend the Fair Labor Standards
Act to custodial settings.
The Appellants are former Immigration and Customs Enforcement civil
detainees who allege that they are owed wages under the FLSA, 29
U.S.C. Sections 201, et seq., for work performed while detained.
In 2017, Appellants were detained for several months at the Cibola
County Correctional Center in Milan, New Mexico, which houses
detainees "while their immigration cases are processed to ensure
their presence during the administrative process and, if necessary,
to ensure their availability for removal from the United States."
Cibola is operated pursuant to a series of agreements among Cibola
County, New Mexico, the Department of Homeland Security,
Immigration and Customs Enforcement ("ICE"), and appellee
CoreCivic, Inc. According to its 2016 Intergovernmental Service
Agreement ("IGSA") with ICE, Cibola County is authorized to "detain
immigrants on behalf of ICE." Cibola County, in turn, entered into
a service agreement with CoreCivic, authorizing the for-profit
private company "to serve as Cibola's independent contractor for
the care and safety of civilly detained immigrants."
Under its service agreement with the county, CoreCivic is bound by
the terms of the IGSA between Cibola County and ICE. This includes
providing detainees with "safekeeping, housing, subsistence,
medical and other services." The contract also requires CoreCivic
to operate Cibola in accordance with ICE's Performance-Based
National Detention Standards ("PBNDS"). These standards mandate
that CoreCivic offer and manage a Voluntary Work Program ("VWP")
for detainees. CoreCivic sometimes hires community members of
Cibola County to perform the same or similar work. The detainees
are not permitted to "work in excess of 8 hours daily, 40 hours
weekly."
The Appellants participated in Cibola's VWP by working as janitors
and in the library and kitchen. For this work, they were
compensated between $1 a day and $15 a week, which is markedly
below the federally- and state-mandated minimum wages for covered
employees but satisfies the pay required by the VWP standards. The
Appellants further allege that because CoreCivic failed to provide
them "with adequate facilities and basic necessities," they "used
their wages to purchase items, such as phone calls, food, and
toiletries, that met their basic needs."
After their release, the Appellants filed the suit in November 2018
on behalf of themselves and others similarly situated, alleging
that CoreCivic violated the FLSA, 29 U.S.C. Sections 201, et seq.,
New Mexico Minimum Wage Act ("NMMWA"), N.M. Stat. Ann. Sections
50-4-19, et seq., and the common law doctrine of unjust enrichment
by paying civilly detained immigrant workers less than federal and
state-mandated minimum wages. CoreCivic filed a motion to dismiss
for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) in January 2019, which the district court
granted in September 2019.
The district court relied upon this court's decision in Harker v.
State Use Industries, 990 F.2d 131, 133 (4th Cir. 1993), which held
that a prison inmate was not covered by FLSA for his work in the
prison's graphic print shop because the custodial context differs
substantially from the traditional free labor market. It also
found the Fifth Circuit's decision in Alvarado Guevara v. I.N.S.,
902 F.2d 394, 396 (5th Cir. 1990), persuasive, which held the FLSA
inapplicable to work performed by alien detainees because they were
"removed from American industry" while detained.
The trial court thus concluded that the Appellants were not
"employees" as contemplated by the FLSA or NMMWA and were therefore
not entitled to federal or state-mandated minimum wages. The
economic reality of the Plaintiffs' situation, the court noted, is
almost identical to a prison inmate and does not share commonality
with that of a traditional employer-employee relationship. It then
dismissed the Appellants' unjust enrichment claim as contingent on
the success of their FLSA claim.
The Appellants argue that they are owed wages under the minimum
wage provisions of the FLSA and NMMWA for work performed while they
were detained for civil immigration proceedings because they were
"employees" under those acts.
But such a claim, the Fourth Circuit opines, is clearly foreclosed
by the circuit's precedent and the well-established principles
governing the interpretation of the FLSA. The Appellants claim
that because civil immigration detainees are not expressly exempted
from the FLSA's coverage, they must be subject to its minimum wage
provisions. An individual must first be an "employee" for purposes
of the FLSA before his or her position may be exempted from the
Act's provisions. Thus the sole question is whether the Appellants
are "employees."
The Circuit Court finds that the FLSA was enacted to protect
workers who operate within "the traditional employment paradigm."
Persons in custodial detention -- such as the Appellants -- are not
in an employer-employee relationship but in a detainer-detainee
relationship that falls outside that paradigm. There is an
"exchange" in the normal sense of the word when money moves from
CoreCivic's pockets to those of the detainees, but that exchange is
not "bargained-for." Those in custodial detention "do not deal at
arms' length." While a detainee may choose whether or not to
participate in a voluntary work program, they have that opportunity
"solely at the prerogative" of the custodian.
Failing in their distinction between criminal and civil detainment,
the Appellants highlight that they are being detained for
immigration purposes, noting that "civil immigration detention is
not punitive or corrective."
But the fact that the Appellants are being held specifically for
immigration purposes does not alter the Appellate Court's analysis.
The Appellants are detained pending administrative immigration
proceedings and cannot leave the facility without authorization
from ICE. As explained, the custodial detention context is
inconsistent with the free labor market envisioned by the FLSA, and
the amassed authority of the sister circuits demonstrates that
logic applies to institutional confinements generally.
The Appellants argue finally that the FLSA's aim of combatting
unfair competition in the marketplace is implicated because the
detention facility happens to be operated by a for-profit, private
entity.
But whatever merit this observation possesses as a matter of policy
cannot dictate its adoption as a proposition of law, the Circuit
Court opines. Other circuits have held that the nonemployee-status
of detainees is not altered by the private, for-profit nature of
the detention facility. It says while detentions may well have an
incidental monetary aspect, their aims are not primarily economic
ones. The purpose of the Appellants' detention is to ensure their
presence during the administrative process and, if necessary, to
ensure their availability for removal from the United States. The
fact that CoreCivic would have to hire nondetainees for such work
without detainees' participation does not eliminate the
non-pecuniary goals of the VWP.
The Circuit Court's point is emphatically not one of advocacy for
any method of detention or custody. It is simply not within its
authority to amend statutes from the bench. The FLSA was a
congressional creation, and its expansion is a matter for Congress
as well. What the Appellants propose is a fundamental alteration
of what it means to be an "employee." The Appellants are not
employees in the free labor market contemplation of the Act, and
the Circuit Court is powerless to make them so. If Congress wishes
to apply the FLSA to custodial detentions, it is certainly free to
do so. But the corollary is that courts are not.
For the foregoing reasons, the Fourth Circuit affirms the
judgment.
A full-text copy of the Court's March 5, 2021 Opinion is available
at https://tinyurl.com/hjsmh9jj from Leagle.com.
Joseph M. Sellers -- jsellers@cohenmilstein.com -- Michael Hancock
-- mhancoc@cohenmilstein.com -- Stacy N. Cammarano --
scammarano@cohenmilstein.com -- COHEN MILSTEIN SELLERS & TOLL PLLC,
Washington, D.C.; Robert S. Libman, MINER, BARNHILL & GALLAND,
P.C., in Chicago, Illinois, for Appellants.
Daniel P. Struck -- dstruck@strucklove.com -- Nicholas D. Acedo,
STRUCK LOVE BOJANOWSKI & ACEDO, PLC, Chandler, Arizona; Paul J.
Maloney, Matthew D. Berkowitz -- matthew.berkowitz@carrmaloney.com
-- K. Maxwell Bernas -- maxwell.bernas@carrmaloney.com -- CARR
MALONEY P.C., in Washington, D.C., for Appellee.
COVANTA PLYMOUTH: Brief in Support of Class Cert. Bid Due Oct. 13
-----------------------------------------------------------------
In the class action lawsuit captioned as HOLLY LLOYD v. COVANTA
PLYMOUTH RENEWABLE ENERGY, LLC, Case No. 2:20-cv-04330-HB (E.D.
Pa.), the Hon. Judge Harvey Bartle III entered a first scheduling
order that:
1. The Plaintiff shall file and serve on or before March 12,
her motion for class certification;
2. The Class action discovery shall proceed forthwith and
continue in such a manner as will assure that all requests
for, and responses to, discovery will be served, noticed,
and completed by July 12, 2021;
3. Should defendant wish to interview putative class members
independently, defendant shall file and serve a motion to
do so on or before March 15, 2021. The Plaintiff shall
file and serve on or before March 25, 2021 any responsive
brief in opposition to defendant's motion. The Defendant
shall file and serve on or before March 29, 2021 any reply
brief in support of its motion;
4. The Plaintiff shall advise defendant as soon as possible
as to the identity of her expert witnesses and the subject
of their expert reports;
5. The Plaintiff shall serve on or before July 12, 2021 any
reports of expert witnesses with respect to class
certification issues;
6. The Defendant shall take the depositions of the
plaintiff's expert witnesses on or before August 2, 2021;
7. The Defendant shall serve on or before August 23, 2021 any
responsive reports of expert witnesses. The Plaintiff
shall take the depositions of the defendant's expert
witnesses on or before September 13, 2021;
8. The Plaintiff shall file and serve on or before October
13, 2021 her brief in support of her motion for class
certification. The Defendant shall file and serve on or
before November 15, 2021 any responsive brief in
opposition to plaintiff's motion. The Plaintiff shall file
and serve on or before November 18, 2021 any reply brief
in support of her motion; and
9. The Court will schedule another status conference with
counsel after it decides the motion.
Covanta is a waste-to-energy facility that serves communities and
businesses across Eastern Pennsylvania.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3lcFHi2 at no extra charge.[CC]
DELAWARE NORTH: Class Certification Bid Filing Due May 3
--------------------------------------------------------
In the class action lawsuit captioned as MELISSA MORAND-DOXZON, on
behalf of herself, all others similarly situated, and on behalf of
the general public, v. DELAWARE NORTH COMPANIES SPORTSERVICE, INC.,
CALIFORNIA SPORTSERVICE, INC., AND DOES 1-100, Case No.
3:20-cv-01258-DMS-BLM (S.D. Calif.), the Hon. Judge Barbara L.
Major entered an order granting joint motion for continuance of:
(1) plaintiff's March 4, 2021 deadline to file a motion for class
certification; (2) April 22, 2021 mandatory settlement conference;
and (3) modification of scheduling order deadlines, as follows:
Current Deadline New Deadline
Motion for Class March 4, 2021 May 3, 2021
Certification Filing:
Deadline
Deadline to Oppose Motion April 5, 2021 June 2, 2021
for Class Certification
Deadline to File a Reply April 19, 2021 June 16, 2021
in Support of Class
Certification Motion
Expert Designation April 9, 2021 July 8, 2021
Rebuttal Experts May 7, 2021 Aug. 5, 2021
Expert Disclosures May 28, 2021 Aug. 26, 2021
Delaware North is doing business in hospitality management & food
service management.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3vhCimV at no extra charge.[CC]
DELTA COUNTY MEMORIAL: Faces Labor Class Suit From Hospital Staff
-----------------------------------------------------------------
Kelly Gooch at Becker Hospital Review reports that a federal judge
revived a class-action lawsuit alleging Delta (Colo.) County
Memorial Hospital District did not compensate off-the-clock work
performed by hourly staff, according to the Montrose Press.
U.S. District Judge R. Brooke Jackson in Colorado approved a
collective action notice March 8, meaning attorneys may send out
notices to all hospital employees who may be included in the
lawsuit.
The lawsuit, originally filed Oct. 15, 2019, by a pulmonology
clinic nurse who formerly worked at the hospital, alleges Delta
County Memorial allowed staff to be interrupted during their meal
and rest breaks. Krystal Gray alleges she and other workers were
never completely relieved of job duties during unpaid meal breaks
and that the hospital did not pay staff for all time spent working
off the clock, according to the report.
Ms. Gray filed for class- and collective-action status, to allow
nurses, nursing assistants, aides, technicians and others who are
not exempt under the Fair Labor Standards Act to join the lawsuit.
In a statement shared with Becker's, Delta County Memorial Hospital
maintains it has supported staff and continues to do so.
"DCMH's position is that if an employee takes a lunch, then the
organization should not have to pay for that time," the hospital
said. "The organization understands that employees sometimes need
to work overtime to ensure proper patient care, and this
understanding is clearly stated in the organization's policies."
"The organization will have the opportunity in the future to
present its side of the case and is confident that they can prove
that employees have been supported and have always been paid
appropriately," the hospital said.[GN]
DELTA GENERAL: Denied Workers Overtime Pay, Pay Stubs, Says Suit
----------------------------------------------------------------
Edgar Rodriguez and Ramiro Morocho, on behalf of themselves and all
others similarly situated, Plaintiff, v. Delta General Contracting
& Management, Corp., Shahid Mahmood and Sajid Mahmood Warraich,
Defendants, Case No. 21-cv-01254 (E.D. N.Y., February 11, 2021),
seeks injunctive and declaratory relief and to recover unpaid
overtime wages, spread-of-hours pay, liquidated damages, statutory
damages, prejudgment and post-judgment interest and attorneys' fees
and costs pursuant to the Fair Labor Standards Act, New York Labor
Law and the New York State Wage Theft Prevention Act.
Delta General provides commercial masonry services and general
construction services throughout the New York metropolitan area,
New Jersey, and Connecticut, including brick and concrete work,
maintenance and repairs where Plaintiffs worked in excess of 40
hours per workweek but were not paid overtime or spread-of-hours
wages. Defendants also failed to provide Perez with wage notices,
asserts the complaint. [BN]
Plaintiff is represented by:
Louis Pechman, Esq.
Gianfranco Cuadra, Esq.
Pechman Law Group PLLC
488 Madison Avenue, 17th Floor
New York, NY 10022
Tel: (212) 583-9500
Fax: (212) 308-8582
Email: pechman@pechmanlaw.com
cuadra@pechmanlaw.com
DOMETIC CORP: Ruling Over Refrigerator Design Defect Discussed
--------------------------------------------------------------
Brittany Nash Herbert, Esq. -- bherbert@kilpatricktownsend.com --
of Kilpatrick Townsend & Stockton LLP, in an article for JDSupra,
reports that administrative feasibility is not a prerequisite for
class certification in the Eleventh Circuit, although it remains a
relevant consideration under Federal Rule of Civil Procedure
23(b)(3)'s manageability factor. Manageability challenges, however,
rarely prevent certification. There is a deep circuit split on this
issue, with the Third, First, and Fourth Circuits applying a
heightened standard for ascertainability that requires a class
representative to propose an administratively feasible method of
ascertaining class members at the class certification stage. The
Eleventh Circuit, however, solidified the split by joining the
Second, Sixth, Seventh, and Ninth Circuits in rejecting
administrative feasibility as a class certification requirement.
Dometic Corporation ("Dometic") manufactures and sells
"gas-absorption refrigerators" for use in recreational vehicles. In
Cherry v. Dometic Corp., --- F.3d ---, No. 19-13242, 2021 WL
346121 (11th Cir. Feb. 2, 2021), the putative class representatives
– eighteen owners of Dometic refrigerators – allege that nearly
all of Dometic's refrigerators sold over a nineteen-year period
contain a design defect that causes the refrigerators to leak a
chemical solution, corroding their boiler plates and potentially
sparking fires. They further allege that Dometic concealed the
defect.
The proposed class consisted of every person in select states who
purchased certain models of Dometic refrigerators that were built
since 1997. During the class certification stage, the main issue
before the district court was whether the proposed class met Rule
23's implied ascertainability requirement. To defeat class
certification, Dometic argued that ascertainability required proof
of administrative feasibility. The district court agreed with
Dometic and denied class certification, applying the Eleventh
Circuit's unpublished opinion in Karhu v. Vital Pharms., Inc., 621
F. App'x 945 (11th Cir. 2015), which held that administrative
feasibility was an element of the ascertainability requirement. As
a result, the district court denied the plaintiffs' motion for
class certification and dismissed the action without prejudice,
concluding that its denial of certification divested it of subject
matter jurisdiction under the Class Action Fairness Act ("CAFA").
The putative class representatives appealed, and the Eleven Circuit
vacated and remanded. Looking at Eleventh Circuit precedent and the
text of Rule 23, the Eleventh Circuit concluded its unpublished
decision in Karhu was not binding, and the text of Rule 23 did not
establish administrative feasibility as a requirement for class
certification.
The decision in Karhu applied the heightened Third Circuit standard
where proof of ascertainability encompasses both the class
definition as well as its administrative feasibility. Rejecting the
approach in Karhu, the panel concluded class membership can be
sufficiently defined at the class certification stage without proof
of administrative feasibility.
Because the explicit language of Rule 23(a) does not require
administrative feasibility, it does not bear on a district court's
assessment of Rule 23(a)'s enumerated elements, namely: (1)
numerosity, (2) commonality, (3) typicality, and (4) adequacy. Nor
does the text of Rule 23(b) require administrative feasibility.
Rather, administrative feasibility is one of many relevant
criterion that district courts balance under the manageability
inquiry of Rule 23(b)(3). Accordingly, the Eleventh Circuit held
"that administrative feasibility is not a requirement for
certification under Rule 23," and ascertainability is limited "to
its traditional scope: a proposed class is ascertainable if it is
adequately defined such that its membership is capable of
determination." 2021 WL 346121, at *5.
Further clarifying the role of administrative feasibility, the
Eleventh Circuit directed district courts to evaluate proposed
classes under Rule 23(b)(3) by considering (1) whether a class
action would create more manageability problems than its
alternatives, and (2) how the manageability concerns compare with
the other advantages or disadvantages of a class action. Under this
framework, administrative feasibility will rarely be dispositive of
class certification.
Finally, the Eleventh Circuit reiterated that federal jurisdiction
under CAFA does not depend on certification. The district court
erred in dismissing the case and should have retained jurisdiction
even after denying class certification. [GN]
EBIX INC: Faruqi & Faruqi Reminds Investors of April 23 Deadline
----------------------------------------------------------------
Faruqi & Faruqi, LLP, a leading national securities law firm, is
investigating potential claims against Ebix, Inc. ("Ebix" or the
"Company") (NASDAQ:EBIX) and reminds investors of the April 23,
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 Ebix stock or
options between November 9, 2020 and February 19, 2021 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:
www.faruqilaw.com/EBIX.
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)
that there was insufficient audit evidence to determine the
business purpose of certain significant unusual transactions in
Ebix's gift card business in India during the fourth quarter of
2020; (2) that there was a material weakness in Company's internal
controls over the gift or prepaid revenue transaction cycle; and
(3) that the Company's independent auditor was reasonably likely to
resign over disagreements with Ebix regarding $30 million that had
been transferred into a commingled trust account of Ebix's outside
legal counsel; 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.
Specifically, on February 19, 2021, after the market closed, Ebix
revealed that its independent auditor, RSM US LLP ("RSM"), resigned
"as a result of being unable, despite repeated inquiries, to obtain
sufficient appropriate audit evidence that would allow it to
evaluate the business purpose of significant unusual transactions
that occurred in the fourth quarter of 2020" related to the
Company's gift card business in India. RSM had also stated that
there was a material weakness related to Ebix's failure to design
controls "over the gift or prepaid card revenue transaction cycle
sufficient to prevent or detect a material misstatement." In
addition, Ebix and RSM disagreed over the accounting treatment of
$30 million that had been transferred into a commingled trust
account of Ebix's outside legal counsel in December 2020.
On this news, the Company's share price fell as much as $20.24, or
approximately 40%, to close at $30.50 on February 22, 2021, on
unusually heavy trading 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 Ebix'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 (www.faruqilaw.com). 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.
To view the source version of this press release, please visit
https://www.newsfilecorp.com/release/77094 [GN]
EHANG HOLDINGS: Kahn Swick Reminds Investors of April 19 Deadline
-----------------------------------------------------------------
Kahn Swick & Foti, LLC ("KSF") and KSF partner, former Attorney
General of Louisiana, Charles C. Foti, Jr., remind investors of
pending deadlines in the following securities class action
lawsuits:
EHang Holdings Limited (EH)
Class Period: 12/12/2019 – 2/16/2021 (2/16/21, purchases at or
above the price of $112.00).
Lead Plaintiff Motion Deadline: April 19, 2021
SECURITIES FRAUD
To learn more, visit https://www.ksfcounsel.com/cases/nasdaqgm-eh/
fuboTV Inc. (FUBO)
Class Period: 3/23/2020 – 1/4/2021
Lead Plaintiff Motion Deadline: April 19, 2021
SECURITIES FRAUD
To learn more, visit https://www.ksfcounsel.com/cases/nyse-fubo/
Apache Corporation (APA)
Class Period: 9/7/2016 - 3/13/2020
Lead Plaintiff Motion Deadline: April 26, 2021
SECURITIES FRAUD
To learn more, visit
https://www.ksfcounsel.com/cases/nasdaqgs-apa/
MultiPlan Corporation f/k/a Churchill Capital Corp. III (MPLN)
Class Period: 7/12/2020 - 11/10/2020 and/or were holders of
Churchill Capital Corp. III ("Churchill") Class A common stock
entitled to vote on Churchill's merger with and acquisition of
Polaris Parent Corp. and its consolidated subsidiaries completed in
October 2020.
Lead Plaintiff Motion Deadline: April 26, 2021
SECURITIES FRAUD, MISLEADING PROSPECTUS
To learn more, visit https://www.ksfcounsel.com/cases/nyse-mpln/
If you purchased shares of the above companies and would like to
discuss your legal rights and your right to recover for your
economic loss, you may, without obligation or cost to you, contact
KSF Managing Partner, Lewis Kahn, toll-free at 1-877-515-1850, via
email (Lewis.Kahn@KSFcounsel.com), or via the case links above.
If you wish to serve as a Lead Plaintiff in the class action, you
must petition the Court on or before the Lead Plaintiff Motion
deadline.
About KSF
KSF, whose partners include former Louisiana Attorney General
Charles C. Foti, Jr., is one of the nation's premier boutique
securities litigation law firms. KSF serves a variety of clients --
including public institutional investors, hedge funds, money
managers and retail investors -- in seeking to recover investment
losses due to corporate fraud and malfeasance by publicly traded
companies. KSF has offices in New York, California and Louisiana.
To learn more about KSF, you may visit www.ksfcounsel.com.
Contact:
Kahn Swick & Foti, LLC
Lewis Kahn, Managing Partner
lewis.kahn@ksfcounsel.com
1-877-515-1850
1100 Poydras St., Suite 3200
New Orleans, LA 70163 [GN]
ELECTRONIC ARTS: Court Stays Ramirez Class Suit Pending Arbitration
-------------------------------------------------------------------
In the case, KEVIN RAMIREZ, on His Own Behalf and on Behalf of All
Others Similarly Situated, Plaintiff v. ELECTRONIC ARTS INC.,
Defendant, Case No. 20-cv-05672-BLF (N.D. Cal.), Judge Beth Labson
Freeman of the U.S. District Court for the Northern District of
California, San Jose Division, grants EA's Motion to Compel
Arbitration and stays the case pending arbitration.
Plaintiff Ramirez brings the putative class action against
Defendant EA, alleging that the Ultimate Team Packs feature of EA's
video games violates California gambling law.
Defendant EA is in the business of digital interactive
entertainment, which includes developing video games for gaming
consoles and computers. Each of EA's video games is governed by
EA's standard user agreement. To access the full features of EA's
games, the user must agree to the terms of the User Agreement. The
user is able to scroll through the entire User Agreement, including
the arbitration provision in Section 15, before consenting to the
User Agreement. Users cannot play EA games without first accepting
the User Agreement.
Plaintiff Ramirez has owned and played EA's FIFA game since 2011
and Madden NFL game since 2013. In order to play these games,
Ramirez must have affirmatively accepted that he read and agreed to
be bound by EA's User Agreement. The User Agreement contains an
Arbitration Provision. The Arbitration Provision notes in
Subsection C that arbitration is governed by the American
Arbitration Associates ("AAA") Commercial Rule.
On Oct. 13, 2020, Ramirez filed his Complaint against EA alleging
that an online, in-game feature called Ultimate Team Packs, which
is present in a number of EA's games, qualifies as an illegal "slot
machine or device" under California Penal Code Section 330(d). In
the Complaint, Ramirez brings three class action claims: 1)
Violation of California's Unfair Competition Law; 2) Violation of
California Consumer Legal Remedies Act; and 3) Unjust Enrichment.
As part of his relief, Ramirez requests that EA "modify its games
in a manner that prevents its users from engaging in gambling,
including through the use of Ultimate Team Packs or similar
mechanisms."
EA argues that Ramirez, by installing and playing FIFA and Madden
NFL, accepted and is bound to EA's User Agreement, including the
Arbitration Provision with the class action waiver. Accordingly, EA
contends that Ramirez must arbitrate all of his claims against EA
on an individual basis.
Mr. Ramirez responds that the Arbitration Provision is
unenforceable under McGill v. Citibank, N.A., 2 Cal. 5th 945, 216
Cal.Rptr.3d 627, 393 P.3d 85 (Cal. 2017) because it bars his
ability to seek public injunctive relief. EA responds that
pursuant to the AAA rules, gateway issues of arbitrability -- such
as validity of the agreement -- must be decided in arbitration
rather than by the Court.
Judge Freeman heard oral arguments on Feb. 25, 2021. She first
determines whether the parties agreed to arbitrate. She finds that
EA has provided sufficient evidence that Ramirez accepted the
Arbitration Provision, and that he did so knowingly. The User
Agreement governs users' access and use of software products, such
as game software contained on disc or downloaded, offered by EA and
includes the Arbitration Provision which covers all disputes,
claims or controversies arising out of or relating to the User
Agreement, any EA Service and its marketing, or the relationship
between user and EA. In order to access all features of the games,
such as the Ultimate Team Packs, Ramirez must have affirmatively
clicked a button indicating that he accepted the User Agreement,
including the Arbitration Provision. Accordingly, Ramirez's
acceptance of EA's User Agreement, and in turn the Arbitration
Provision, is sufficient to show that an agreement to arbitrate was
formed.
Mr. Ramirez argues that the entire Arbitration Provision is
unenforceable because it bars his right to obtain public injunctive
relief. EA contends that the Arbitration Provision properly
incorporates the AAA rules, which provide that disputes regarding
the validity of an arbitration agreement are also delegated to the
arbitrator, rather than the Court, to decide.
Judge Freeman agrees. She says courts have established that
incorporation of arbitration rules -- to include the AAA rules --
into a contract constitutes clear and unmistakable evidence that
the contracting parties agreed to arbitrate arbitrability. Hence,
the Arbitration Provision's incorporation of the AAA rules
constitutes clear and unmistakable delegation of intermediate
issues of arbitrability to the arbitrator.
Relying on McGill, Ramirez argues that the Arbitration Provision is
unenforceable in its entirety. In McGill, the California Supreme
Court held that contracts that waive a party's right to seek public
injunctive relief are unenforceable under California law. Ramirez
contends that Subsection D in the Arbitration Provision bars
Ramirez from seeking public injunctive relief. Because Subsection
D further provides that "if this specific subsection is found to be
unenforceable, then the entirety of this agreement to arbitrate
will be null and void," Ramirez argues that accordingly the entire
Arbitration Provision is invalidated.
As she discussed, Judge Freeman folds that, through the
incorporation of the AAA rules the parties delegated issues
regarding the validity of the Arbitration Provision to the
arbitrator. The issue presented -- whether the Arbitration
Provision is unenforceable because it improperly limits the right
to seek public injunctive relief -- is clearly a matter regarding
the validity of the Arbitration Provision. As such she finds that
it is plainly delegated to an arbitrator, rather than the Court, to
decide.
EA requests that the Court dismisses Ramirez's claims upon a
finding that they are arbitrable.
Judge Freeman finds that although the parties do not contest that
Ramirez's claims are covered by the Arbitration Provision, the
arbitrator must still determine as an initial matter whether the
Arbitration Provision is enforceable against Ramirez's claims.
Because it is not certain that Ramirez's claims will remain in
arbitration, outright dismissal is not appropriate, and the Judge
stays the action pending the completion of arbitration.
For the foregoing reasons, Judge Freeman grants EA's Motion to
Compel Arbitration and stays the case pending the outcome of the
arbitration. The Parties must provide the Court with their status
on the initiation of arbitration within 60 days of the Order, and
thereafter within 10 days of the conclusion of arbitration.
Accordingly, the Judge terminates EA's Motion to Dismiss at ECF 26.
If the case is returned to the Court, EA may re-notice its Motion
to Dismiss.
A full-text copy of the Court's March 5, 2021 Order is available at
https://tinyurl.com/4xrdsb8v from Leagle.com.
EVERGREEN PROFESSIONAL: Filing of Revised Class Notice Due March 17
-------------------------------------------------------------------
In the case, JESSE RODRIGUEZ, on behalf of himself and all others
similarly situated, Plaintiff v. EVERGREEN PROFESSIONAL RECOVERIES,
INC., Defendant, Case No. C19-0184-JCC (W.D. Wash.), Judge John C.
Coughenour of the U.S. District Court for the Western District of
Washington, Seattle, issues an order on the parties' supplemental
brief requesting approval of supplemental notice to the class.
Before finally approving a class action settlement, the court must
direct notice in a reasonable manner to all the class members who
would be bound by the proposal. The class counsel must also
provide notice of an attorney fee motion to the class members in a
reasonable manner. Notice is satisfactory if it generally
describes the terms of the settlement in sufficient detail to alert
those with adverse viewpoints to investigate and to come forward
and be heard. Settlement notices are supposed to present
information about a proposed settlement neutrally, simply, and
understandably.
Judge Coughenour holds that the parties' proposed notice largely
meets these standards but does not appear to be final. For
example, he finds that it still refers to the fairness hearing as
occurring on Dec. 8, 2020, and suggests the deadline for objecting
to the attorney fee motion is Oct. 9, 2020, which is before the
motion was filed. The Judge understands this to be because the
parties seek to include information from the Court in the notice.
He presumes that the parties will revise the notice to provide the
class members with a clear deadline for filing an objection to the
fee motion, which is after the motion and documents supporting it
have been filed.
Accordingly, the Judge now provides the parties with the relevant
information and orders them to file a final, revised class notice
for approval no later than March 17, 2021. He will review the
proposed notice promptly.
The parties propose that the Court set the deadline to object to
the attorney fee motion for 30 days after the supplemental notice
is sent to the class members. The Judge finds that deadline
reasonable. The parties also propose that the Court holds a
fairness hearing 30 to 60 days after the objection deadline and
offer to provide the class members with a Zoom link. This proposal
is reasonable too.
Based on the foregoing, Judge Coughenour orders the parties to
submit a revised, final supplemental notice of the attorney fee
motion and supporting documentation to the Court for approval no
later than March 17, 2021. When the parties send the notice to the
class members, they must provide the class members with the
documentation supporting the fee request, including the timesheets
at Docket Number 55-2.
The deadline for objecting to the attorney fee motion will be May
7, 2021.
The fairness hearing will be on June 23, 2021 at 10:00 a.m. (PT).
The Class members may join at this link:
https://wawduscourts.zoomgov.com/j/1615286040?pwd=TDhONURLYnIxRjlodjlmOFhXbjF
DQT09. The parties will include this link in their revised
proposed notice.
The Judge notes that the first page of the notice contains
inconsistent language. The capital letters at the top refer to
individuals whose reports were obtained between March 23, 2018, and
present while the remainder of the document refers to individuals
whose reports were obtained on or after Feb. 7, 2017. The Judge
orders the parties to use the proper date throughout the proposed
notice.
A full-text copy of the Court's March 5, 2021 Order is available at
https://tinyurl.com/v38umv4k from Leagle.com.
FEDERATION INTERNATIONALE: Opposition to Class Cert. Bid Due May 25
-------------------------------------------------------------------
In the class action lawsuit captioned as THOMAS A. SHIELDS, MICHAEL
C. ANDREW, and KATINKA HOSSZU, on behalf of themselves and all
others similarly situated. v. FEDERATION INTERNATIONALE DE
NATATION, Case No. 3:18-cv-07393-JSC (N.D. Calif.), the Hon. Judge
Jacqueline Scott Corley entered an order that:
1. The deadline for the Defendant's Opposition to the
Plaintiffs' Motion for Class Certification shall be
extended to May 25, 2021; and
2. The deadline for Plaintiffs' Reply In Support of the
Plaintiffs' Motion for Class Certification shall be
extended to June 22, 2021.
FINA is the international federation recognised by the
International Olympic Committee for administering international
competitions in water sports. It is one of several international
federations which administer a given sport or discipline for the
IOC and international community. It is based in Lausanne,
Switzerland.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at http://bit.ly/2NiNIpgat no extra charge.[CC]
The Attorneys for the Plaintiff ISL, Plaintiffs Shields, Andrew,
Hosszu, and the Proposed Class, are:
Neil A. Goteiner, Esq.
C. Brandon Wisoff, Esq.
Joshua W. Malone, Esq.
Hilary C. Krase, Esq.
FARELLA BRAUN + MARTEL LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Telephone: (415) 954-4400
Facsimile: (415) 954-4480
E-mail: ngoteiner@fbm.com
bwisoff@fbm.com
jmalone@fbm.com
hkrase@fbm.com
The Attorneys for the Plaintiffs Shields, Andrew, Hosszu, and the
Proposed Class, are:
Richard M. Heimann, Esq.
Eric B. Fastiff, Esq.
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: rheimann@lchb.com
efastiff@lchb.com
Caitlin M. Nelson
cnelson@lchb.com
FIDELITY MGMT: Dismissal of Consolidated ERISA Fee Suit Affirmed
----------------------------------------------------------------
In the case, IN RE: FIDELITY ERISA FEE LITIGATION. ANDRE W. WONG,
on behalf of the T-Mobile USA, Inc. 401(k) Retirement Savings Plan
and Trust and on behalf of all other similarly situated Employee
Benefit Plans; JANICE ANDERSEN; JASON BAILIS; NATALIE DONALDSON;
CYNTHIA EDDY; MYRL JEFFCOAT; THOMAS GOODRICH; KAYLA JONES; KAREN
PETTUS; GINA SUMMERS; HEATHER WOODHOUSE; REGINA CRYSTAL ROBINSON,
on behalf of the T-Mobile USA, Inc. 401(k) Retirement Savings Plan
and Trust and on behalf of all other similarly situated Employee
Benefit Plans; TYLER WAYNE SILLS, on behalf of the T-Mobile USA,
Inc. 401(k) Retirement Savings Plan and Trust and on behalf of all
other similarly situated Employee Benefit Plans; CATEENIA D.
JOHNSON, on behalf of the T-Mobile USA, Inc. 401(k) Retirement
Savings Plan and Trust and on behalf of all other similarly
situated Employee Benefit Plans, Plaintiffs, Appellants, BOARD OF
TRUSTEES OF UFCW LOCAL 23 & GIANT EAGLE PENSION FUND, Plaintiff v.
FMR LLC; FIDELITY MANAGEMENT & RESEARCH COMPANY; FIDELITY
MANAGEMENT TRUST COMPANY; FIDELITY BROKERAGE SERVICES LLC; NATIONAL
FINANCIAL SERVICES LLC; FIDELITY INVESTMENTS INSTITUTIONAL
OPERATIONS COMPANY, INC., Defendants, Appellees, JOHN AND JANE DOES
1-10, Defendants, Case No. 20-1286 (1st Cir.), the U.S. Court of
Appeals for the First Circuit affirms the dismissal of the
Plaintiffs' Consolidated Amended Complaint.
The Plaintiffs in the putative class action are participants in
401(k) retirement plans sponsored by their respective employers.
They train the attention on fees that the Defendant, Fidelity,
charges some mutual funds for the privilege of being placed on the
menu of investment options Fidelity makes available to 401(k) plans
that contract with it to receive an array of services and
investment opportunities.
Seeking equitable and remedial relief on behalf of themselves and
the retirement plans in which they participate, the Plaintiffs
contend that Fidelity's exaction and retention of those fees
violate fiduciary duties it owes to its customer plans and their
participants under the Employee Retirement Income Security Act, 29
U.S.C. Section 1001 et seq. In granting a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), the district court
disagreed.
The First Circuit resolves first a procedural dispute concerning
the scope of the record appropriate for our consideration in
reviewing the dismissal of a complaint under Federal Rule of Civil
Procedure 12(b)(6). The Plaintiffs' Consolidated Amended Complaint
devotes an entire section to "the Contracts," a set of "standard
form agreements" between Fidelity and its customers. The Complaint
then describes the Contracts at some length, expressly labeling
Fidelity's authority as "pursuant to the Contracts." So the
Contracts are undoubtedly central to the Plaintiffs' Complaint.
Quite unremarkably, Fidelity therefore filed with its motion to
dismiss a copy of relevant portions of its agreements with T-Mobile
USA, Inc., the employer of four of the Plaintiffs, as an example of
the "standard form agreements" described in the Complaint.
Fidelity also produced copies of the complete T-Mobile Contracts to
the Plaintiffs' counsel, allowing them to bring any other sections
to the court's attention. The Plaintiffs then objected to the
court's consideration of the T-Mobile Contracts on the basis of
lack of authenticity. When the district court sought clarification
about the authenticity objection, the Plaintiffs forthrightly
conceded that they had no basis to say that the T-Mobile Contracts
were not what they purported to be. Rather, they argued that they
simply could not verify that for themselves without discovery.
The First Circuit sees no error in the district court's decision to
consider the T-Mobile Contracts. Fidelity filed a declaration
under penalty of perjury signed by its Vice President of Contracts
authenticating the excerpts and the complete, current set of
agreements from which they were drawn. Were the declaration false,
it would be easily seen as such by the thousands of employers and
plan officials who have entered into these "standard form
agreements" with Fidelity, including the officials at T-Mobile who
administer the plan in which four of the named plaintiffs
participate. The Appellate Court sees no good faith basis for
disputing the T-Mobile Contracts' authenticity.
So the First Circuit turns now to the factual allegations of the
Complaint as supplemented by the T-Mobile Contracts. It describes
the basic outline of the dealings at issue, adding further detail
later in its Opinion where most relevant to its consideration of
the Plaintiffs' various claims.
Since 1989, Fidelity has maintained what it calls a "supermarket"
named the FundsNetwork. Rather than offering groceries, the
FundsNetwork stocks thousands of opportunities to invest in mutual
funds established by third parties other than Fidelity. Fidelity's
customers include approximately 24,000 employer-established
retirement plans. The plans pay Fidelity an agreed-upon fee for
its services. Fidelity also charges some of the mutual fund
managers a so-called "infrastructure fee" for the privilege of
being listed as an investment opportunity in the FundsNetwork.
The First Circuit finds that the pivotal question is whether the
Complaint's allegations regarding this arrangement plausibly paint
Fidelity as a fiduciary for the plans (or their participants) with
respect to the collection of infrastructure fees from some of the
fund managers whose funds appear in Fidelity's FundsNetwork. It
reviews de novo the district court's negative answer to that
question in dismissing the complaint for failure to state a claim.
The parties agree that under ERISA, a person may be a fiduciary
because he is so identified in a plan instrument or pursuant to a
procedure specified in that instrument. A person not named as a
plan fiduciary may nevertheless become a "functional fiduciary"
depending on his relationship with the plan.
The Plaintiffs advance three arguments for treating Fidelity as a
functional fiduciary. They argue first that Fidelity acted as a
fiduciary by exercising control over the factors affecting the
compensation it receives from the plans. The Plaintiffs advance
two theories in support of this argument. The Plaintiffs next
argue that Fidelity acts as a fiduciary in determining which mutual
funds it includes or removes from its FundsNetwork. Their final
fiduciary status argument trains on the fact that Fidelity can
successfully impose infrastructure fees only because it has in its
hands lots of plan assets to be invested.
As to the first argument, the First Circuit sees nothing in the
case that calls for treating Fidelity's charging of fees to some
funds as an exercise of authority or control over any plan assets,
management, or administration. The Plaintiffs point to no case
treating such a series of independent decisions as the equivalent
of Fidelity controlling its compensation from plans. One could
just as easily say that by charging infrastructure fees to funds,
Fidelity lowers the costs it incurs as a service provider, and thus
can agree to charge plans less; indeed, it likely would charge less
unless it has market power. The Plaintiffs also overlook the
significance of having other fiduciaries in this chain of
independent decision-making. It is difficult to see what would be
gained in the end for plan participants by trying to deem
Fidelity's attempt to sell shelf space to fund managers to be a
fiduciary function on behalf of Fidelity's plan customers.
Turning to the Plaintiffs' second argument, the First Circuit finds
that the Complaint contains no allegation that Fidelity's decision
to stop offering a fund in its FundsNetwork removes that fund from
those already selected by a plan for its Small Menu. The absence
of such an allegation from the Complaint is unsurprising because,
as noted already, the T-Mobile Contracts preclude Fidelity from
having any "responsibility for the selection of Permissible
Investments for the Plan." And, adding belt to suspenders, if a
plan or its investment advisors become dissatisfied with Fidelity's
Big Menu offerings, they could opt to shop elsewhere.
As to their third argument, the Circuit Court holds that Fidelity's
fiduciary responsibilities as a directed trustee are distinct from
and do not extend to Fidelity's charging of an infrastructure fee.
It says Fidelity is able to charge funds a fee because it has lots
of customers, not because it controls those customers or their
assets in any meaningful manner. The fund simply gets on the
store's shelves, and the participant has the final say on whether
the fund also gets in the grocery cart. None of this is to ignore
the fact that Fidelity does have some fiduciary duties vis-à-vis
the plans and their participants. Rather, the point is that
Fidelity's actions in a fiduciary capacity are not the subject of
the Plaintiffs' complaint.
The Plaintiffs also argue that the district court improperly
dismissed the Complaint as to several unnamed defendants when it
invoked Federal Rule of Civil Procedure 4(m). The Appellate Court
may affirm the dismissal of a complaint "on any basis available in
the record." In the case, it finds that the Plaintiffs offer no
theory of liability applicable to the unnamed defendants that it
has not already rejected. It therefore dismisses the Complaint as
to all of the Defendants, named and unnamed.
For the foregoing reasons, the First Circuit affirms the dismissal
of the Plaintiffs' Consolidated Amended Complaint.
A full-text copy of the Court's March 5, 2021 Opinion is available
at https://tinyurl.com/3d2cdkz8 from Leagle.com.
Alec J. Berin -- aberin@sfmslaw.com -- with whom James E. Miller --
jmiller@sfmslaw.com -- Laurie Rubinow -- lrubinow@sfmslaw.com --
Shepherd, Finkelman, Miller & Shah, LLP, David Pastor, and Pastor
Law Office were on brief, for appellants.
Bradley N. Garcia -- bgarcia@omm.com -- with whom Jonathan D.
Hacker -- jhacker@omm.com -- Brian D. Boyle -- bboyle@omm.com --
and O'Melveny & Myers LLP were on brief, for appellees.
FIFTH THIRD BANCORP: Zanni Suit Transferred to S.D. Ohio
--------------------------------------------------------
The case styled as Joanne Zanni, Vito Zanni, on behalf of
themselves and all other persons similarly situated, known and
unknown v. Fifth Third Bancorp; Fifth Third Bank, National
Association; Case No. 1:20-cv-03407, was transferred from the U.S.
District Court for the Northern District of Illinois, to the U.S.
District Court for the Southern District of Ohio on March 11,
2021.
The District Court Clerk assigned Case No. 1:21-cv-00173-DRC to the
proceeding.
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Fifth Third Bank -- https://www.53.com/content/fifth-third/en.html
-- is a bank headquartered in Cincinnati, Ohio, at Fifth Third
Center.[BN]
The Plaintiffs are represented by:
Maureen Ann Salas, Esq.
Douglas M. Werman
Michael Mark Tresnowski
Sarah Jean Arendt
WERMAN SALAS P.C.
77 W. Washington. Suite 1402
Chicago, IL 60602
Phone: (312) 419-1008
Email: msalas@flsalaw.com
dwerman@flsalaw.com
mtresnowski@flsalaw.com
sarendt@flsalaw.com
The Defendant is represented by:
Alexander Nicholas Wright, Esq.
DINSMORE & SHOHL LLP
222 West Adams Street, Suite 3400
Chicago, IL 60606
Phone: (312) 837-4322
Email: alexander.wright@dinsmore.com
- and -
Richik Sarkar
DINSMORE & SHOHL
1001 Lakeside Ave. E.
North Point Tower, Suite 990
Cleveland, OH 44114
Phone: (216) 413-3861
Fax: (216) 413-3839
Email: richik.sarkar@dinsmore.com
- and -
Thomas M Hefferon
David L Permut
GOODWIN & PROCTER LLP
1900 N St. NW
Washington, DC 20036
Phone: (202) 346-4000
Email: thefferon@goodwinlaw.com
dpermut@comcast.net
G4S SECURE: Kovacs Seeks to Certify Class of Security Guards
-------------------------------------------------------------
In the class action lawsuit captioned as JACQUELINE KOVACS, on
behalf of herself and all others similarly situated, v. G4S SECURE
SOLUTIONS (USA) INC., Case No. 1:20-cv-03180-WJM-KMT (D. Colo.),
the Plaintiff asks the Court to enter an order:
1. granting conditional certification of the following class:
"All former and current hourly, non-exempt security guard
employees employed by the Defendant in Colorado at any
time in the three years prior to the date of conditional
certification;"
2. approving her proposed notice;
3. directing the Defendant to produce the names, last known
addresses, email addresses, and telephone numbers for the
putative class within 14 days of the date that conditional
certification is granted; and
4. directing that notice be sent to potential opt-ins at the
Plaintiff's expense enabling them to join.
The Plaintiff alleges that the Defendant failed to pay its hourly,
non-exempt security guard employees for pre-shift "pass-down" work.
This practice resulted in Defendant's hourly, non- exempt security
guard employees not being paid all of the overtime pay they
earned.
The Defendant provides security solutions" to its customers. As
such, Defendant employs security guards in Colorado (and the entire
country) who are assigned by the Defendant to work at its
customers' sites.
A copy of the Plaintiff's motion to certify class dated March 3,
2020 is available from PacerMonitor.com at https://bit.ly/3rKxUus
at no extra charge.[CC]
The Plaintiff is represented by:
Hans A. Nilges, Esq.
Shannon M. Draher, Esq.
Jeffrey J. Moyle, Esq.
NILGES DRAHER LLC
7266 Portage Street, N.W., Suite D
Massillon, OH 44646
Telephone: (330) 470-4428
Facsimile: (330) 754-1430
E-mail: hans@ohlaborlaw.com
sdraher@ohlaborlaw.com
jmoyle@ohlaborlaw.co
GEISINGER HEALTH: Sauer Hits Employee Non-Poaching Policy
---------------------------------------------------------
Jessica Sauer, individually and on behalf of all others similarly
situated, Plaintiff, v. Geisinger Health and Evangelical Community
Hospital, Defendants, Case No. 21-cv-00263 (M.D. Pa., February 12,
2021), seeks damages and injunctive relief for unlawful restraint
of competition in the market for the services of skilled
professionals in violation of Section 1 of the Sherman Act and
Pennsylvania's Unfair Trade Practices and Consumer Protection Law.
Geisinger and Evangelical are one of the largest operators of
outpatient medical care centers in the United States. They compete
with one another to hire and retain employees nationwide. Sauer
alleges that Geisinger and Evangelical agreed not to recruit each
other's physicians, nurses, psychologists, therapists and other
healthcare professionals. [BN]
Plaintiff is represented by:
Ira Neil Richards
SCHNADER HARRISON SEGAL & LEWIS LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103-7286
Phone: (215) 751-2503
Email: irichards@schnader.com
- and -
Roberta D. Liebenberg, Esq.
Gerard A. Dever, Esq.
Mary L. Russell, Esq.
FINE, KAPLAN, AND BLACK, R.P.C.
One South Broad St., 23th Floor
Philadelphia, PA 19107
Phone: (215) 715-3055
Fax: (215) 567-6565
Email: rlicbenberg@finekaplan.com
gdever@finekaplan.com
mrussell@finekaplan.com
GRAND CANYON: Court Narrows Claims in Hannibal-Fisher Class Suit
----------------------------------------------------------------
In the case, Seth Hannibal-Fisher, et al., Plaintiffs v. Grand
Canyon University, Defendant, Case No. CV-20-01007-PHX-SMB (D.
Ariz.), Judge Susan M. Brnovich of the U.S. District Court for the
District of Arizona granted in part and denied in part the GCU's
Motion to Dismiss First Amended Complaint.
The Plaintiffs filed the action seeking to represent a class of
individuals who, because of GCU's response to the COVID-19
pandemic, "lost the benefit of the education and room and board for
which they paid, as well as the services for which their fees were
paid, without having their tuition, fees and costs refunded to them
in sufficient amount, or at all."
Defendant GCU is a private university with its main campus located
in Phoenix, Arizona. Plaintiff Hannibal-Fisher is an undergraduate
student at GCU enrolled in an on-campus degree program. For the
Spring 2020 semester, Plaintiff Hannibal-Fisher paid approximately
$8,250 in on-campus tuition, $1,409 in fees, and $3,500 for room
and board costs to GCU. Plaintiff Tran is a full-time
undergraduate GCU student who paid to attend the Spring 2020
semester.
For the Spring 2020 term, on campus tuition cost $687.50 per credit
for the Spring 2020 term. Online tuition was cheaper, ranging from
$395 to $449 per credit. The Plaintiffs also paid various fees for
the Spring 2020 term.
In March 2020, in response to the COVID-19 pandemic, GCU instructed
students to leave campus and begin attending class remotely. On
March 12, 2020, GCU announced that as of March 23, 2020, all but a
few in-person classes would be moved to an online-only format for
its on-campus students through the end of the Spring 2020 term due
to the COVID-19 pandemic. At that time, GCU also suspended
athletic events, fine arts performances, and other extra-curricular
activities and encouraged students to return home to complete their
classes online.
On March 17, 2020, GCU canceled all large group gatherings on
campus and closed facilities such as fitness centers, the E-sports
facility, commuter lounge, veterans center, and other "high-risk"
areas. On March 18, 2020, it reminded students that they were
"highly encouraged to return to their homes to finish out the
semester in an online learning environment if it [was] not
imperative that they remain on campus." GCU closed additional
campus facilities at this time.
On March 20, 2020, GCU urged students not to return following
Spring Break. On March 21, 2020, GCU issued the following
statement to students: "We are asking all students -- other than
international students who can not travel to their home countries
and students who have special circumstances -- to leave campus as
soon as possible." In the same communication, GCU explained that
if any stay-at-home order issued, students would be restricted to
just their rooms, the campus grocery store, and the Health and
Wellness Clinic. Further, GCU warned that students remaining on
campus could expect a significant cutback in food services
beginning on March 23, 2020. The March 21, 2020 announcement
stated, "Students who have already left campus should stay home,"
but allowed students who had not already collected their belongings
to return to campus to do so any time before April 23, 2020.
The FAC alleges that the Plaintiffs and GCU entered into a
contractual agreement where the Plaintiffs would provide payment in
the form of tuition and fees and GCU, in exchange, would provide
in-person educational services, experiences, opportunities, and
other related services. They allege that the terms of the contract
were set forth in publications from GCU, including "GCU's Spring
Semester 2020 Course Catalog, the Individual College Course Page,
and the Student Portal." These publications contained multiple
references to in-person instruction.
The Plaintiffs allege that the online classes offered by GCU to
students were subpar in practically every respect compared to the
on-campus in-person classes. Thus, they allege that GCU "did not
deliver the educational services, facilities, access, experience,
and/or opportunities that the Plaintiff and the putative class
contracted and paid for. The Plaintiffs allege that they are
entitled to a refund of all tuition and fees for services,
facilities, equipment, access, and/or opportunities that Defendant
has not provided. They contend that GCU did not provide adequate
refunds for room and board costs and student fees.
The FAC alleges five causes of action: (1) Breach of Contract, (2)
Unjust Enrichment, (3) Conversion, (4) Money Had and Received, and
(5) Accounting.
GCU moves to dismiss the Plaintiffs' FAC under Rule 12(b)(6), Fed.
R. Civ. P., arguing that they have failed to sufficiently allege a
claim for each of their five causes of action. The Plaintiffs
filed a response.
Judge Brnovich granted in part and denied in part the Defendant's
Motion to Dismiss. She denied the Motion as to the Plaintiffs'
breach of contract claim for housing costs and fees, unjust
enrichment claims, and money had and received claim. The Judge
granted the Motion under Rule 12(b)(6) as to the Plaintiffs' breach
of contract claim for tuition, conversion claim, and accounting
claim.
The Plaintiffs' claims for conversion and accounting are dismissed
with prejudice. Their claims for breach of contract for tuition
are dismissed without prejudice.
GCU argues that the Plaintiffs have not stated a plausible claim
for breach of contract for housing and fees students paid to GCU.
It first contends Plaintiff Hannibal-Fisher was not evicted from
campus. It posits that its on-campus students had a choice: "they
could either remain on campus or return home for the last four
weeks of the semester." GCU also argues that the Plaintiffs cannot
bring a claim for fees and housing costs because those fees were
nonrefundable after a week pursuant to the Housing Contract. GCU
lastly argues that Plaintiffs' claims fail as a matter of law
because it was impossible for the University to perform.
Judge Brnovich holds that (i) the students were essentially
mandated to leave campus unless they had extenuating circumstances
or were international students who could not travel home; (ii) the
Plaintiffs have plausibly alleged a claim for breach of contract
for its payments of housing costs and fees; and (iii) Arizona law
recognizes the defense of impracticability of performance and
typically follows the Restatement in contract cases, however, even
if GCU can prove that the defense applies to the case, the
Restatement recognizes that it is generally appropriate to allow a
party who has performed to seek restitution.
The Judge also finds that the Plaintiffs have not pled an unjust
enrichment claim for money spent for tuition for in-person
instruction, but have done so for money paid for housing costs and
fees. He holds that the Plaintiffs have adequately pled a claim
for unjust enrichment as it relates to tuition. The Plaintiffs
paid for in-person classes but only received online instruction, so
they did not receive what they paid for. As pled, their
impoverishment is directly linked to the enrichment of GCU because
they received more than they should have for only providing online
classes. Similarly, the Plaintiffs have adequately alleged an
unjust enrichment claim for housing and costs and fees paid to GCU.
For example, their FAC contends that they conferred a benefit on
GCU in the form of fees and room and board costs in exchange for
promises that GCU would provide services and facilities.
Finally, examining the FAC, the Judge holds that the Plaintiffs
have pled an action for money had and received. FAC contends that
paid GCU tuition, fees, and room and board costs in exchange for
promises that GCU would provide in-person education, services, and
facilities. The FAC also states that GCU retained the benefit even
though it failed to provide "education, experience, facilities, and
services" for which the money was collected. Contrary to what GCU
argues, taking the FAC's allegations as true, the Judge holds that
the Plaintiffs did not pay with full knowledge of the facts. They
paid GCU before knowing that GCU would instruct students to return
home and move classes online. Therefore, the Judge finds that the
Plaintiffs have plausibly alleged a claim for money had and
received.
The Plaintiffs are granted leave to file an amended complaint
within 60 days of the date the Order is entered.
The Judge denied the Defendant's request for judicial notice
finding that taking judicial notice of the four documents is
unnecessary to resolve the Motion.
A full-text copy of the Court's March 5, 2021 Order is available at
https://tinyurl.com/4frfjaj4 from Leagle.com.
GREEN PEAK: Montanez Files TCPA Suit in W.D. Michigan
-----------------------------------------------------
A class action lawsuit has been filed against Green Peak Industries
LLC. The case is styled as Jessica Montanez, individually and on
behalf of all others similarly situated v. Green Peak Industries
LLC doing business as: Skymint, Case No. 1:21-cv-00235 (W.D. Mich.,
March 11, 2021).
The lawsuit is brought over alleged violation of the Telephone
Consumer Protection Act for Restrictions of Use of Telephone
Equipment.
Green Peak Industries LLC -- https://www.skymintbrands.com/ -- is
located in Dimondale, Michigan and is part of the Manufacturing
Sector Industry.[BN]
The Plaintiff is represented by:
Andrew Shamis, Esq.
SHAMIS & GENTILE, PA
14 NE 1st Ave, Ste. 705
Miami, FL 33132
Phone: (305) 479-2299
Fax: (786) 623-0915
Email: ashamis@shamisgentile.com
GRIDDY ENERGY: Texas AG Files Lawsuit Over Marketing Practices
--------------------------------------------------------------
Doug Delony, writing for KHOU 11, reports that Attorney General Ken
Paxton's office on March 1 announced the filing of a lawsuit
against Griddy "for violating the Texas Deceptive Trade Practices
Act through false, misleading, and deceptive advertising and
marketing practices."
The lawsuit comes after ERCOT revoked the company's right to
operate over missed payments following the Texas freeze. The Texas
Tribune reported that customers have now been switched to other
providers.
The missed payments came after the costs for a megawatt hour of
electricity jumped from an average of $35 to $9,000 during the
height of the February winter storm that contributed to the
near-collapse of the state's power grid.
Griddy made headlines for sending massive bills to customers, and
multiple lawsuits have already been filed. A Chambers County woman
filed a class-action lawsuit accusing Griddy of price gouging. She
says the company charged her more than $9,000 for the week of the
storm instead of her usual $200 to $500 bill.
AG Paxton accuses Griddy of offering a service that cost many
Texans thousands of dollars. On its Facebook page just before the
winter storm, Griddy warned that its customers should switch to
another provider because of the expected jump in costs.
Some customers praised Griddy for giving them a warning, but others
on Facebook claimed they received the warning too late.
"Griddy misled Texans and signed them up for services which, in a
time of crisis, resulted in individual Texans each losing thousands
of dollars," stated Paxton in a March 1 press release. "My office
will not allow Texans to be deceived or exploited by unlawful
behavior and deceptive business practices."
The lawsuit claims, "Griddy, the company that promised Texans cheap
wholesale prices that would consistently beat traditional energy
costs, blatantly contradicted these promotional representations as
it auto-debited hundreds of dollars from Texans' checking accounts
daily. Griddy was fully aware of the reality of the risk in its
pricing scheme . . ."
The lawsuit is "seeking injunctive relief from Griddy to ensure
that the Texans it serves will receive truthful and accurate energy
service in the future, and to have the Court order refunds from
available sources."
In all, Texas electricity providers failed to make more than $2.1
billion in payments that were due to ERCOT, according to another
market notice obtained by the Texas Tribune on Feb. 26.
Harris County Attorney's response to lawsuit
Harris County Attorney Christian D. Menefee gave the following
statement on the lawsuit the Attorney General of Texas filed
against energy provider Griddy:
"I am glad to see the Attorney General sued Griddy for its
deceptive practices and its charging Texans, including Harris
County residents, excessive electricity rates during Winter Storm
Uri. This is but a first step to hold companies accountable for the
suffering Texans experienced during and after the power grid
failure. I am proud of my office's efforts to protect Harris County
residents from deceptive business practices—our county is leading
the state on addressing the important issue of price gouging. I am
heading to Austin to testify before the Texas House's Business and
Industry Committee about changes they can make to the law to enable
my office and other local governments to be more involved in the
fight for consumer protection. [GN]
IMMUNOVANT SCIENCES: Securities Class Action Lawsuit Discussed
--------------------------------------------------------------
Corey I. Rogoff, Esq., of Proskauer Rose LLP, in an article for The
National Law Review, reports that pharmaceutical and biotech
companies, with proprietary and potentially lucrative products,
have been popular targets for SPAC sponsors. Unfortunately, one
such private equity sponsor may have its hands full after its
managing partner was publicly named in a securities class action.
Immunovant Sciences was a private clinical-stage biopharmaceutical
company that develops treatments for autoimmune diseases. One of
its promising drugs -- IMVT-1401 -- was in Phase II clinical trials
for the treatment of Graves' ophthalmopathy and warm autoimmune
hemolytic anemia. Dr. Roderick Wong, Managing Partner/Chief
Investment Officer of RTW Investments and CEO of blank-check
company Health Sciences Acquisitions Corporation ("HSAC"), must
have liked what he saw, as Immunovant Sciences entered into a
merger agreement with HSAC on September 29, 2019, after which the
new company "changed" its name to Immunovant, Inc.
The merger was announced to the public three days later, in which
Dr. Wong stated he "believe[d] IMVT-1401 is a uniquely compelling
asset within the FcRn drug class" which he expected would become "a
cornerstone therapy for treating many auto-antibody driven
disease." Throughout the rest of 2019 and 2020, Immunovant, Inc.
positively mentioned IMVT-1401 in public statements and SEC
filings.
However, Immunovant Inc. changed its tune on February 2, 2021 when
it announced a " voluntary pause of dosing in its ongoing clinical
trials for IMVT-1401" as the company became aware of a
"physiological signal consisting of elevated total cholesterol and
LDL levels in IMVT-1401-treated patients in ASCEND GO-2, a Phase 2b
trial in Thyroid Eye Disease (TED)."
On February 19, 2021, a sole plaintiff filed a purported federal
securities class action against Immunovant, Dr. Wong, and its
current CEO and CFO in the United States District Court for the
Eastern District of New York. In her complaint, the plaintiff
alleged the company and Dr. Wong's statements were materially
misleading as, among other things, HSAC failed to perform adequate
due diligence on Immunovant Sciences prior to the merger.
Immunovant, Inc. has not yet filed its response, and the Court has
not made any statements about class certification. [GN]
INFINITY Q: Robbins Geller Reminds Investors of April 26 Deadline
-----------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on March 1 disclosed that a class
action lawsuit has been filed in the Eastern District of New York
on behalf of purchasers of Infinity Q Diversified Alpha Fund
Investor Class shares (NASDAQ: IQDAX) or Infinity Q Diversified
Alpha Fund Institutional Class shares (NASDAQ: IQDNX) between
December 21, 2018 and February 22, 2021, inclusive (the "Class
Period"). The case is captioned Yang v. Trust for Advised
Portfolios, Infinity Q Capital Management, LLC, No. 21-cv-1047. The
Infinity Q Diversified Alpha Fund class action lawsuit charges
Infinity Q Diversified Alpha Fund's registrant, issuer, investment
advisor, and certain of its officers and trustees with violations
of the Securities Exchange Act of 1934.
The Private Securities Litigation Reform Act of 1995 permits any
investor who purchased Infinity Q Investor Class shares or
Institutional Class shares during the Class Period to seek
appointment as lead plaintiff in the Infinity Q Diversified Alpha
Fund class action lawsuit. A lead plaintiff is generally the movant
with the greatest financial interest in the relief sought by the
putative class who is also typical and adequate of the putative
class. A lead plaintiff acts on behalf of all other class members
in directing the Infinity Q Diversified Alpha Fund class action
lawsuit. The lead plaintiff can select a law firm of its choice to
litigate the Infinity Q Diversified Alpha Fund class action
lawsuit. An investor's ability to share in any potential future
recovery of the Infinity Q Diversified Alpha Fund class action
lawsuit is not dependent upon serving as lead plaintiff. If you
wish to serve as lead plaintiff of the Infinity Q Diversified Alpha
Fund class action lawsuit or have questions concerning your rights
regarding the Infinity Q Diversified Alpha Fund class action
lawsuit, please provide your information here or contact counsel,
J.C. Sanchez of Robbins Geller, at 800/449-4900 or 619/231-1058 or
via e-mail at jsanchez@rgrdlaw.com. Lead plaintiff motions for the
Infinity Q Diversified Alpha Fund class action lawsuit must be
filed with the court no later than
April 26, 2021.
Infinity Q Diversified Alpha Fund is a mutual fund providing
exposure to several strategies often referred to as "alternative"
or "absolute return" strategies. Infinity Q Diversified Alpha Fund
generally intends to have a low average correlation to the equity,
fixed income, and credit markets. Infinity Q Diversified Alpha
Fund's portfolio includes swap instruments (the "Swaps") for which
Infinity Q Diversified Alpha Fund's investment advisor calculates
fair value using models provided by a third-party pricing vendor.
The Infinity Q Diversified Alpha Fund class action lawsuit alleges
that, throughout the Class Period, defendants made false and/or
misleading statements and/or failed to disclose that: (i) Infinity
Q Diversified Alpha Fund's Chief Investment Officer made
adjustments to certain parameters within the third-party pricing
model that affected the valuation of the Swaps held by Infinity Q
Diversified Alpha Fund; (ii) consequently, Infinity Q Diversified
Alpha Fund would not be able to calculate Net Asset Value ("NAV")
correctly; (iii) as a result, Infinity Q Diversified Alpha Fund's
previously reported NAVs were unreliable; (iv) because of the
foregoing, Infinity Q Diversified Alpha Fund would halt redemptions
and liquidate its assets; and (v) as a result, Infinity Q
Diversified Alpha Fund's prospectuses were materially false and/or
misleading and failed to state information required to be stated
therein.
On February 22, 2021, Infinity Q Diversified Alpha Fund's
investment advisor, Infinity Q Capital Management, LLC ("Infinity
Q"), filed a request with the U.S. Securities and Exchange
Commission ("SEC") for an order pursuant to Section 22(e)(3) of the
Investment Company Act of 1940 suspending the right of redemption
with respect to shares of Infinity Q Diversified Alpha Fund,
effective February 19, 2021, because of Infinity Q's inability to
determine Infinity Q Diversified Alpha Fund's NAV. The request also
stated that Infinity Q Diversified Alpha Fund was liquidating its
portfolio and distributing its assets to shareholders. The request
stated, in pertinent part, that "[o]n February 18, 2021, based on
information learned by [SEC] staff and shared with Infinity Q,
Infinity Q informed [Infinity Q Diversified Alpha Fund] that
Infinity Q's Chief Investment Officer had been adjusting certain
parameters within the third-party pricing model that affected the
valuation of the Swaps."
Robbins Geller Rudman & Dowd LLP is one of the world's leading law
firms representing investors in securities class action litigation.
With 200 lawyers in 9 offices, Robbins Geller has obtained many of
the largest securities class action recoveries in history. For
seven consecutive years, ISS Securities Class Action Services has
ranked the Firm in its annual SCAS Top 50 Report as one of the top
law firms in the world in both amount recovered for shareholders
and total number of class action settlements. Robbins Geller
attorneys have helped shape the securities laws and have recovered
tens of billions of dollars on behalf of aggrieved victims. Beyond
securing financial recoveries for defrauded investors, Robbins
Geller also specializes in implementing corporate governance
reforms, helping to improve the financial markets for investors
worldwide. Robbins Geller attorneys are consistently recognized by
courts, professional organizations, and the media as leading
lawyers in the industry. Please visit http://www.rgrdlaw.comfor
more information.
Contacts:
Robbins Geller Rudman & Dowd LLP
J.C. Sanchez, 800-449-4900
jsanchez@rgrdlaw.com [GN]
INFINITY Q: Schall Law Firm Reminds of April 27 Deadline
--------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
on March 1 announced the filing of a class action lawsuit against
Infinity Q Capital Management LLC ("Infinity Q" of "the Company")
on behalf of investors in Infinity Q Diversified Alpha Fund
Institutional Class shares (NASDAQ: IQDNX) or Infinity Q
Diversified Alpha Fund Investor Class shares (NASDAQ: IQDAX) for
violations of the federal securities laws.
Investors who purchased the Company's securities between December
21, 2018 and February 22, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before April 27, 2021.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Infinity Q's Chief Investment Officer
adjusted parameters related to its third-party pricing model which
impacted the valuation of swaps held by the Company. As a result of
the change, the Company was incapable of calculating a proper NAV.
The change also made past reported NAVs unreliable. The Company
halted redemptions and liquidate its assets as a result of the
change. 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 Infinity Q, 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]
INFINITY Q: Wolf Haldenstein Reminds of April 27 Deadline
---------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP on March 1 disclosed that
a federal securities class action lawsuit has been filed in the
United States District Court for the Eastern District of New York
on behalf of purchasers of mutual fund shares of the Infinity Q
Diversified Alpha Fund (NASDAQ: IQDAX, IQDNX) between December 21,
2018 through February 22, 2021, inclusive (the "Class Period").
All investors who purchased mutual fund shares of the Infinity Q
Diversified Alpha Fund and incurred losses are urged to contact the
firm immediately at classmember@whafh.com or (800) 575-0735 or
(212) 545-4774. You may obtain additional information concerning
the action or join the case on our website, www.whafh.com.
If you have incurred losses in the mutual fund shares of the
Infinity Q Diversified Alpha Fund you may, no later than
April 27, 2021, request that the Court appoint you lead plaintiff
of the proposed class. Please contact Wolf Haldenstein to learn
more about your rights as an investor in the mutual fund shares of
the Infinity Q Diversified Alpha Fund.
In a response to a United States federal inquiry, Infinity Q
Capital Management announced on February 22, 2020 that it was
shutting down a $1.8 billion mutual fund and that it placed James
Velissaris, its founder and Chief Investment Officer, on leave,
cutting off his access to accounts and trading while hiring an
expert to value the fund's holdings. The firm said it had learned
the U.S. Securities and Exchange Commission (SEC) is probing
whether Velissaris incorrectly valued complex derivative securities
representing about 20% of the mutual fund's reported value.
Subsequently, on February 23, 2021, the Wall Street Journal
published a report, "Investment Firm Halts Redemptions on $1.8
Billion Fund: Infinity Q Capital Management bans its chief
investment officer from trading after discovering issues valuing
the fund's holdings". The report stated that, "Investment firm
Infinity Q Capital Management LLC asked the Securities and Exchange
Commission to halt redemptions on one of its mutual funds and
forbid its chief investment officer from trading after discovering
issues valuing the fund's holdings."
The article continued to state that, "[t]he fund was unable to
calculate an Net Asset Value ("NAV") on February 19, 2021, and it
is uncertain when the fund will be able to calculate an NAV that
would enable it to satisfy requests for redemptions of fund
shares[.]"
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm has
attorneys in various practice areas; and offices in New York,
Chicago and San Diego. The reputation and expertise of this firm in
shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein by telephone at (800) 575-0735, via e-mail at
classmember@whafh.com, or visit our website at www.whafh.com.
Contact:
Wolf Haldenstein Adler Freeman & Herz LLP
Kevin Cooper, Esq.
Gregory Stone, Director of Case and Financial Analysis
Email: gstone@whafh.com, kcooper@whafh.com or
classmember@whafh.com
Tel: (800) 575-0735 or (212) 545-4774
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and ethical rules. [GN]
INTEGRATED TECH: Court Junks Monplaisir Bid for Class Certification
-------------------------------------------------------------------
In the class action lawsuit captioned as PAUL MONPLAISIR, et al.,
v. INTEGRATED TECH GROUP, LLC, et al., Case No. 3:19-cv-01484-WHA
(N.D. Calif.), the Hon. Judge William Alsup entered an order
denying class certification.
Judge Alsup says that of the 238 putative class members, only
sixteen did not agree to arbitrate. The proposed class lacks
numerosity.
He adds that The remainder of the case shall proceed as follows:
-- The remaining of the 16 California employees who have not
been compelled to arbitrate may intervene in this lawsuit
as individual plaintiffs with counsel of their choosing.
Plaintiffs’ counsel shall give prompt notice of this right
(and the deadline for intervention) by first-class mail to
these employees by March 26.
-- The remaining putative class members and Fair Labor
Standards Act (FLSA) collective members may pursue
individual arbitration to vindicate their claims for
relief. The limitations clock has, 1 however, restarted.
The Plaintiffs' counsel shall provide prompt notice of
this right by first-class mail to these employees by March
26.
-- To prevent future snafus, all motions to intervene are due
and counsel shall specify the population of all plaintiffs
herein by May 13 at noon
-- The non-expert discovery cut-off date shall be June 10.
-- The last date for designation of expert testimony and
disclosure of full expert reports under FRCP 26(a)(2) as
to any issue on which a party has the burden of proof
("opening reports") shall also be June 10.
-- The last date to file dispositive motions shall be
September 9.
-- The final pretrial conference shall be held on December 1
at 2:00 pm.
The plaintiffs, Paul Monplaisir, Jacky Charles, and Sterling
Francois, and their fellow employees install cable and
telecommunications equipment across the nation for defendants
Integrated Tech Group, LLC and ITG Communications LLC.
The complaint alleges that the defendants made employees work
significant portions of their day off-the-clock, including
trainings, pre-shift work, meal periods, driving time, and more.
Additionally, the defendants allegedly pressured employees to alter
or underreport time and systematically undercalculated their pay.
The Plaintiffs sued in March 2019. An August 6 order conditionally
certified a nationwide FLSA collective and around 380 employees
joined by, or slightly after, the January 9, 2020, deadline.
Integrated Tech was founded in 2013. The Company's line of business
includes the warehousing and storage of a general line of goods.
A copy of the Court's order denying class certification dated March
3, 2020 is available from PacerMonitor.com at
https://bit.ly/3lgAhT2 at no extra charge.[CC]
INTUIT INC: Arena's Bid for Prelim. OK of $40MM Settlement Denied
-----------------------------------------------------------------
In the case, MICHELE ARENA, et al., Plaintiffs v. INTUIT INC., et
al., Defendants, Case No. 19-cv-02546-CRB (N.D. Cal.), Judge
Charles R. Breyer of the U.S. District Court for the Northern
District of California denies the Plaintiffs' Motion for
Preliminary Approval of Class Action Settlement.
A group of Plaintiffs brought a putative class action against
Intuit, alleging that Intuit induced them into paying for its tax
preparation services when they were entitled to use Intuit's
free-filing option.
Intuit owns TurboTax, an online tax preparation service. In 2002,
Intuit and other tax preparation services agreed with the Internal
Revenue Service to provide low-income taxpayers and active military
members the option to file their taxes for free. In exchange, the
government promised to not enter the tax preparation software and
e-filing services market. By staying out of that market, the
government helps Intuit maintain its status as the dominant
provider of e-filing services for all taxpayers, so long as Intuit
offers free services to low-income taxpayers. But the Plaintiffs
allege that instead of steering eligible taxpayers to its
free-filing option, or simply letting customers find their way to
it, Intuit misleadingly channeled free-filing eligible taxpayers to
its paid services.
On May 12, 2019, the Plaintiffs sued Intuit on behalf of themselves
and other similarly situated individuals. They asserted claims for
breach of contract and violations of various state consumer
protection laws. On Aug. 19, 2019, the Court appointed Daniel C.
Girard of Girard Sharp LLP and Norman E. Siegel of Stueve Siegel
Hanson LLP as the co-lead interim class counsel under Rule 23(g)(3)
of the Federal Rules of Civil Procedure.
The Court previously denied Intuit's Motion to Compel Arbitration,
but the Ninth Circuit reversed. The Plaintiffs, with support from
Intuit, eventually moved for preliminary approval of a proposed
settlement.
Under the proposed settlement, Intuit would pay a fixed sum of $40
million in exchange for the release of all claims that were or
could have been asserted in the case. The settlement would award
claimants who expected to file for free, but ended up paying
roughly $100 per year they filed, an estimated $28 assuming a 5%
participation rate. It would also require Intuit to take various
steps to inform consumers of the free file option.
The proposed settlement class "consists of all persons within the
United States who, from Jan. 1, 2015 to Nov. 20, 2020, paid to use
TurboTax online in a year in which they were eligible to file for
free with the TurboTax Free File Program." But the proposed
settlement class is narrower with respect to any monetary award,
because in filing a claim for such an award, the class members must
sign an attestation that they paid a fee to Intuit when they
"expected" to file for free. The parties nonetheless estimate that
the proposed class includes 19 million people.
In the meantime, many Intuit customers had filed individual
arbitration demands against Intuit, exposing Intuit to multiple
fees for each arbitration, leaving aside potential liability on the
merits. The proposed settlement included a procedure by which these
and the other class members could opt out, and was contingent on
the Court immediately enjoining individual arbitrations and any
other parallel proceedings until the class member involved in those
proceedings opted out. Some of the arbitration claimants moved to
intervene in opposition to the proposed settlement, and the Court
granted their motion on Dec. 14, 2020.
On Dec. 17, 2020, Judge Breyer held a hearing and issued an order
denying the motion for preliminary approval. He delayed issuing an
opinion at the parties' request. Because the parties have been
unable to reach a settlement to date, the Judge now provides his
reasoning for denying the motion. The facts and reasoning set
forth were applicable when the Court issued its Dec. 17, 2020
order.
Judge Breyer concludes that the proposed settlement does not
satisfy Rule 23(e) because it is not fair, reasonable, and
adequate. Therefore, he denies the Plaintiff's motion for
preliminary approval. The Judge need not consider whether he would
likely be able to certify the proposed class, or subsidiary issues
like whether the proposed class satisfies Rule 23(a)'s four initial
requirements, Rule 23(g)'s adequacy of counsel requirement, and
Rule 23(b)(3)'s predominance requirement.
At every step of the Court's Rule 23(e) analysis, the Judge bears
in mind the stakes for different members of the proposed class.
First, he finds that the arbitration claimants, like Intervenors,
would be subject to an immediate injunction and must opt out of the
settlement to continue pursuing their arbitration claims. These
claimants may benefit from the settlement if the $28 they would
recover by filing a claim exceeds their expected net recovery
through arbitration. Given Intuit's weak bargaining position in
the arbitration proceedings, it would likely be economically
irrational for arbitration claimants with legitimate claims to
participate in the proposed settlement. Thus, the proposed
settlement's primary effect on arbitration claimants is to stall
their arbitrations until they comply with the proposed opt out
procedures. And if arbitration claimants both fail to opt out of
the settlement and fail to file a settlement claim, they get
nothing.
Second, the Judge finds that there are class members who may
recover via government enforcement actions against Intuit. Whether
the proposed settlement harms these people depends on whether it
could preclude or limit their recovery in government enforcement
actions -- a complex question that the parties and Amici dispute.
Third, there is the rest of the class. Because the Ninth Circuit
has held that the Plaintiffs' claims against Intuit must be
arbitrated, there is no realistic way for these class members to
recover in Court or as a class except via settlement, the remote
possibility of a successful appeal to the U.S. Supreme Court
notwithstanding. Under the proposed settlement, these class members
could either submit a claim, opt out and pursue individual
arbitrations, or get nothing.
The Judge opines that the proposed settlement, when considered in
context, does not fall "within the range of possible approval." In
these unique circumstances, "the amount offered in settlement" is
plainly inadequate, and many class members have justifiably had a
negative "reaction" to the proposed settlement's opt out
procedures, which expose a significant segment of the class to
undue burdens. These considerations persuade the Judge that the
proposed settlement would be unfair to a portion of the class,
inadequate as to the entire class, and thus not susceptible to
approval under Rule 23(e). For these reasons, he denies the
Plaintiffs' motion for preliminary approval.
A full-text copy of the Court's March 5, 2021 Order & Opinion is
available at https://tinyurl.com/wtxxbny2 from Leagle.com.
IRHYTHM TECHNOLOGIES: Kessler Topaz Reminds of April 2 Deadline
---------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP alerts investors
that a securities fraud class action lawsuit has been filed against
iRhythm Technologies, Inc. (NASDAQ:IRTC) ("iRhythm") on behalf of
those who purchased or acquired iRhythm common stock between August
4, 2020 and January 28, 2021, inclusive (the "Class Period").
Investor Reminder: Investors who purchased or acquired iRhythm
common stockduring the Class Period may, no later than April 2,
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
atinfo@ktmc.com; orclick
https://www.ktmc.com/irhythm-technologies-inc-securities-class-action?utm_source=PR&utm_medium=link&utm_campaign=irhythm
According to the complaint, iRhythm is a digital healthcare company
that offers a portfolio of ambulatory cardiac monitoring services
on its platform called the Zio service. iRhythm receives revenue
for its Zio service primarily from third-party payors, which
includes commercial payors and government agencies, such as the
U.S. Centers for Medicare and Medicaid Services ("CMS"). On August
3, 2020, the CMS issued its Calendar Year 2021 Medicare Physician
Fee Schedule Proposed Rule, which would update payment policies,
payment rates, and other provisions for services to be furnished
under the Medicare Physician Fee Schedule on or after January 1,
2021.
The Class Period begins on August 4, 2020, when iRhythm held a
conference call with analysts to discuss the CMS proposed rule.
During this call, Kevin M. King ("King"), then President and CEO of
iRhythm, discussed at length how iRhythm "worked hand-in-hand with
the various governing bodies . . . in drafting and constructing"
the language used in the CMS's proposed rule, and that iRhythm was
"well aware and well informed" of the proposed CMS rules. King
praised the impact the proposed rule would have on iRhythm's
business and revenues, stating that "[i]f we were to apply the new
codes and proposed rates, our 2019 revenues would increase
slightly," and that "our total business will be up slightly
overall."
However, the truth began to be revealed on December 1, 2020, when
the CMS issued its final rule, which finalized the codes as
anticipated, but did not finalize national pricing for certain
products and services offered by iRhythm. On December 2, 2020,
iRhythm's common stock opened at $183.00 per share, down from the
December 1, 2020 close of $240.64.
Then on January 29, 2021, Medicare Administrative Contractor,
Novitas Solutions, published actual reimbursement rates under the
CMS's 2021 Medicare Physician Fee Schedule. A Baird analyst
commented that these rates were "way lower than" the former codes,
citing one example where iRhythm was previously reimbursed around
$311, but was now receiving just $42.68. Following this news, the
price of iRhythm's common stock closed at $168.42 on January 29,
2021, down approximately 33% from its January 28, 2021 close of
$251.00.
The complaint alleges that throughout the Class Period, the
defendants misrepresented and/or failed to disclose to investors
that: (1) iRhythm's business would suffer as a result of the CMS's
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 iRhythm's business; and (4) as a
result of the foregoing, the defendants' public statements were
materially false and misleading at all relevant times.
iRhythm investors may, no later than April 2, 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]
JENNIFER DING: Biyu Lin Files Labor Class Action
------------------------------------------------
Biyu Lin, individually and on behalf of others similarly situated,
Plaintiff, v. Jennifer Yin Nail & Spa Inc., Jennifer Ding Hua Spa
Inc. and Cuihua Ding (a.k.a. Jennifer Ding), Defendants, Case No.
21-cv-01239 (S.D. N.Y., February 11, 2021), seeks to recover unpaid
minimum and overtime wages and redress for failure to provide
itemized wage statements pursuant to the Fair Labor Standards Act
of 1938 and New York Labor Law, including applicable liquidated
damages, interest, attorneys' fees and costs.
Defendants operate a nail parlor and spa in the Bronx where Biyu
Lin worked as a manicurist and pedicurist. She claims to have
worked in excess of 40 hours per week, without appropriate minimum
wage, overtime and spread of hours compensation for the hours that
they worked. She also did not enjoy a fixed break time since she
would attend to customers even during her break. Defendants also
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,
asserts the complaint. [BN]
Plaintiff is represented by:
Adam Dong, Esq.
DONG, ADAM'S LAW FIRM PLLC
3708 Main St, Suite 308
Flushing, NY 11354
Tel: (929) 269-5666
Email: adam.dong@dongadams.com
JET AUTOMOTIVE: Rivera, Mejia Seek Collective Action Status
-----------------------------------------------------------
In the class action lawsuit captioned as KENNIS RIVERA, et al. v.
JET AUTOMOTIVE SERVICES, LLC, et al., Case No. 1:20-cv-01037-JKB
(D. Md.), the Plaintiffs Kennis Rivera and Ada Mejia ask the Court
to enter an order granting conditional certification of a
collective action and granting approval for the facilitation of
notice to potential class members.
Jet automotive is an auto service and repair shop.
A copy of the Plaintiffs' motion to certify class dated March 3,
2020 is available from PacerMonitor.com at http://bit.ly/3vvc7t5at
no extra charge.[CC]
The Plaintiffs are represented by:
Michael J. March, Esq.
CREPEAU MOURGES
1344 Ashton Road, Suite 110
Hanover, Maryland 21076
Telephone: (667) 900-9909
Facsimile: (667) 999-0202
E-mail: Michael@usataxlaw.com
JP MORGAN: Motion to Dismiss Iran Hostage Crisis Suit Granted
-------------------------------------------------------------
Law360 reports that a New York federal judge has granted JPMorgan
Chase's motion to dismiss a proposed class action filed by victims
of the 1979 Iran embassy hostage crisis, saying the statute of
limitations has expired for their claims against its predecessor,
Chase Manhattan Bank. [GN]
JPMORGAN CHASE: Enrichment Claim v. Phunware in Sha-Poppin Tossed
-----------------------------------------------------------------
In the case, Sha-Poppin Gourmet Popcorn LLC, Plaintiff v. JPMorgan
Chase Bank, N.A., and Phunware, Inc., Defendants, Case No.
20-cv-2523 (N.D. Ill.), Judge Joan B. Gottschall of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, granted Phunware's motion to dismiss insofar as it seeks
dismissal of count VI of the amended complaint for lack of personal
jurisdiction.
Sha-Poppin pleads a single count (count VI) of unjust enrichment
against Phunware.
The proposed class action is one of at least seven cases filed in
federal courts across the nation in which the Plaintiff alleges
that Defendant Chase improperly processed applications for small
business loans under the Paycheck Protection Program ("PPP")
established by the Coronavirus Aid, Relief, and Economic Security
Act ("CARES Act"), Pub. L. No. 116-136, 134 Stat. 281 (2020).
Through the PPP program, Congress made $349 billion in small
business loans available in an effort to mitigate the economic
impacts of COVID-19-related shutdowns. The U.S. Small Business
Administration ("SBA") oversaw the PPP program, but approved
private lenders, including Chase, processed all loan applications
and made the loans.
At issue in the case is an SBA regulation requiring lenders to
process PPP loan applications on a "first-come, first-served"
basis. In its amended complaint, Plaintiff Sha-Poppin, a
five-employee gourmet popcorn company based in Westchester,
Illinois, alleges that Chase gave preferential treatment to certain
large or politically connected customers, including co-Defendant
Phunware.
Sha-Poppin pleads five claims under Illinois law against Chase, and
a single count (count VI) of unjust enrichment against Phunware.
Phunware is alleged to be a Delaware corporation with a principal
place of business in Austin, Texas.
In addition to proposing to represent a plaintiff class of Chase
PPP loan applicants, Sha-Poppin sues Phunware as a representative
of a potential defendant class comprised, with some exceptions, of
"all Chase Commercial Banking account holders that applied for a
PPP loan through Chase, and whose application was approved not on a
first-come, first-served basis."
The Court has before it Phunware's motion to dismiss Sha-Poppin's
complaint against it for lack of standing under Article III of the
Constitution, for lack of personal jurisdiction, and for failure to
state a claim for which relief may be granted.
Sha-Poppin argues that this court can exercise specific personal
jurisdiction over Phunware. The Seventh Circuit has identified
"three essential requirements" for specific jurisdiction: "(1) the
defendant must have purposefully availed himself of the privilege
of conducting business in the forum state or purposefully directed
his activities at the state; (2) the alleged injury must have
arisen from the defendant's forum-related activities; and (3) the
exercise of jurisdiction must comport with traditional notions of
fair play and substantial justice." The ultimate question is
"whether it is fundamentally fair to require the defendant to
submit to the jurisdiction of the court with respect to this
litigation."
Judge Gottschall opines that as far as appears from the amended
complaint, Phunware did not apply for a loan in Illinois. Nor did
it direct a loan application (or anything else) to Illinois at any
time. Sha-Poppin does not argue otherwise. Sha-Poppin instead
relies on several cases decided under the stream of commerce
theory. It reasons that because Phunware allegedly knew it would
be jumping the line of Chase PPP loan applications, it is
reasonable to infer that it was aware that loan applicants in other
states, such as Illinois, would be harmed. Thus, Sha-Poppin
argues, Phunware's submission of a PPP loan application formed the
necessary minimum contacts with Illinois and every other state.
The Judge finds that ample contacts between Sha-Poppin and Chase in
Illinois have been alleged, and Sha-Poppin claims to have been
harmed in Illinois. But Sha-Poppin's interactions with Chase in
Illinois do not create the required connection between Illinois and
Phunware because Phunware, not the Plaintiff or third parties, must
create contacts with the forum State. Nor does the fact that
Sha-Poppin experienced harm in Illinois create specific
jurisdiction, for "mere injury to a forum resident is not a
sufficient connection to the forum."
The Court must identify where the unjust enrichment occurred when
performing the minimum contacts analysis rather than focus on where
downstream effects were felt. Sha-Poppin alleges that Phunware was
unjustly enriched when Chase approved its PPP loan application.
There is no allegation that the approval had any connection to
Illinois. The connection between Phunware's conduct and the harm
felt by Sha-Poppin in Illinois "is thus too attenuated" to support
specific jurisdiction.
For these reasons, Judge Gottschall granted Phunware's motion to
dismiss insofar as it seeks dismissal of count VI of the amended
complaint for lack of personal jurisdiction.
A full-text copy of the Court's March 5, 2021 Merandum Opinion &
Order is available at https://tinyurl.com/d9ah69f3 from
Leagle.com.
KELLOGG COMPANY: Smith Bid to Certify FLSA Collective Action Nixed
------------------------------------------------------------------
In the class action lawsuit captioned as BRIAN SMITH, et al., v.
KELLOGG COMPANY, et al., Case No. e 1:18-cv-01341-PLM-RSK (W.D.
Mich.), the Hon. Judge Paul L. Maloney entered an order dismissing
the motion to conditionally certify a Fair Labor Standards Act
(FLSA) collective action and to issue notice as moot.
The Court said, "On January 16, 2019, Plaintiff filed a motion to
conditionally certify an FLSA collective action and to issue
notice. On October 5, 2020, the parties filed a notice informing
the court of the parties' agreement to settle the matter,
therefore, is hereby ordered that the motion to conditionally
certify a FLSA collective action and to issue notice is dismissed
as moot."
The Kellogg Company, doing business as Kellogg's, is an American
multinational food manufacturing company headquartered in Battle
Creek, Michigan.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at https://bit.ly/2OPJfKS at no extra charge.[CC]
KIDROBOT INC: Quezada Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Kidrobot, Inc. The
case is styled as Jose Quezada, on behalf of himself and all others
similarly situated v. Kidrobot, Inc., Case No. 1:21-cv-02152-ER
(S.D.N.Y., March 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Kidrobot -- https://www.kidrobot.com/ -- is a creator and dealer of
limited edition designer art toys, signature apparel and lifestyle
accessories.[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
KROGER COMPANY: Store Staff Seeks Unpaid Overtime Wages
-------------------------------------------------------
Thomas Schell and Christopher Riley, on behalf of themselves and
all others similarly situated, Plaintiffs, v. The Kroger Company,
Defendant, Case No. 21-cv-00103 (S.D. Ohio, February 11, 2021),
seeks all available relief under the Fair Labor Standards Act for
Kroger's systematic failure and refusal to pay them overtime pay
for all hours worked over 40 in a workweek.
Kroger owns and operates, directly and/or through its wholly owned
subsidiaries, over 1,200 "Kroger" branded stores in at least 15
states, including Ohio. Schell and Riley worked as assistant store
managers in Kroger's Dayton and Columbus Ohio stores respectively.
[BN]
Plaintiff is represented by:
Bruce Meizlish, Esq.
Deborah Grayson, Esq.
MEIZLISH & GRAYSON
119 E. Court Street, Suite 409
Cincinnati, OH 45202
Phone: (513) 345-4700
Facsimile: (513) 345-4703
Email: brucelaw@fuse.net
drgrayson@fuse.net
- and -
Jason Conway, Esq.
CONWAY LEGAL, LLC
1700 Market Street, Suite 1005
Philadelphia, PA 19103
Telephone: (215) 278-4782
Fax: (215) 278-4807
Email: jconway@conwaylegalpa.com
LEIDOS HOLDINGS: Kessler Topaz Reminds Investors of May 5 Deadline
------------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP announces that a
securities fraud class action lawsuit has been filed in the United
States District Court for the Southern District of New York against
Leidos Holdings, Inc. (NYSE: LDOS) ("Leidos") on behalf of those
who purchased or acquired Leidos securities between May 4, 2020 and
February 23, 2021, inclusive (the "Class Period").
Investor Deadline Reminder: Investors who purchased or acquired
Leidos securities during the Class Period may, no later than May 5,
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/leidos-holdings-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=leidos
Leidos is a science, engineering, and information technology
company that provides services and solutions in the defense,
intelligence, homeland security, civil and health markets, both
domestically and internationally. The Class Period commences on May
4, 2020, when Leidos announced that it had completed the
acquisition of L3Harris Technologies' Security Detection and
Automation businesses ("SD&A Businesses").
According to the complaint, on February 16, 2021, Spruce Point
Capital Management LLC ("Spruce Point") published a research
report, alleging, among other things that "Leidos is potentially
covering up at least $100m of fictitious sales, mischaracterizing
$355 - $367m of international revenue." The report also alleged
that Leidos was "concealing numerous product defects from
investors, notably faulty explosive detection systems at airports
and borders." Following this news, Leidos's share price fell $2.58,
or 2.4%, to close at $105.22 per share on February 16, 2021.
Then, on February 23, 2021, Leidos announced its fourth quarter and
full year 2020 financial results in a press release. Therein,
Leidos reported $89 million in revenue related to the SD&A
Businesses for the fourth quarter, meaning that after two full
quarters, the acquisition generated only $163 million in sales (or
$326 million annualized), falling well short of projected $500
million sales. Leidos expected cash flow of $850 million, well
below analyst estimates of $1.083 billion. Following this news,
Leidos's stock price fell $10.29, or 9.91%, to close at $93.51 per
share on February 23, 2021.
Finally, on February 24, 2021, Spruce Point highlighted that Leidos
had "materially expanded" the risk disclosures in its annual report
for the year ended December 31, 2020, which had been filed after
the market closed on February 23, 2021. Spruce Point tweeted: "We
believe it is validating all the major points of our report."
Spruce Point noted that Leidos expanded its risk disclosures
regarding insurance coverage, as "Liedos is shipping defective
products back from various countries [that] may not have the same
protections as in the U.S." Following this news, Leidos's stock
price fell $3.13, or 3.3%, to close at $90.38 per share on February
24, 2021.
The complaint alleges that, throughout the Class Period, the
defendants failed to disclose to investors that: (1) the purported
benefits of Leidos's acquisition of L3Harris Technologies' SD&A
Businesses were significantly overstated; (2) Leidos's products
suffered from numerous product defects, including faulty explosive
detection systems at airports, ports, and borders; (3) as a result
of the foregoing, Leidos's financial results were significantly
overstated; and (4) as a result of the foregoing, the defendants'
positive statements about Leidos's business, operations, and
prospects were materially misleading and/or lacked a reasonable
basis.
Leidos investors may, no later than May 5, 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)
info@ktmc.com [GN]
LEIDOS HOLDINGS: The Schall Law Firm Reminds of May 3 Deadline
--------------------------------------------------------------
The Schall Law Firm, a national shareholder rights litigation firm,
announces the filing of a class action lawsuit against Leidos
Holdings, Inc. ("Leidos" or "the Company") (NYSE:LDOS) for
violations of Sec10(b) and 20(a) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder by the U.S. Securities
and Exchange Commission.
Investors who purchased the Company's securities between May 4,
2020 and February 23, 2021, inclusive (the "Class Period"), are
encouraged to contact the firm before May 3, 2021.
If you are a shareholder who suffered a loss, click
https://schallfirm.com/cases/leidos-holdings-inc/#case-form to
participate.
We also encourage you to contact Brian Schall of the Schall Law
Firm, 2049 Century Park East, Suite 2460, Los Angeles, CA 90067, at
310-301-3335, to discuss your rights free of charge. You can also
reach us through the firm's website at www.schallfirm.com, or by
email at brian@schallfirm.com.
The class, in this case, has not yet been certified, and until
certification occurs, you are not represented by an attorney. If
you choose to take no action, you can remain an absent class
member.
According to the Complaint, the Company made false and misleading
statements to the market. Leidos significantly overstated the
purported benefits of its acquisition of L3Harris' Security
Detection & Automation businesses. The Company's products suffered
from multiple defects, including faulty bomb detection systems
installed at critical infrastructure points including airports and
ports. The Company's financial results were significantly
overstated as a result. 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 Leidos,
investors suffered damages.
Join the case to recover your losses.
The Schall Law Firm represents investors around the world and
specializes in securities class action lawsuits and shareholder
rights litigation.
This press release may be considered Attorney Advertising in some
jurisdictions under the applicable law and rules of ethics.
CONTACT:
The Schall Law Firm
Brian Schall, Esq.,
Office: 310-301-3335
info@schallfirm.com
https://schallfirm.com/ [GN]
LOSER MACHINE: Monegro Files ADA Suit in S.D. New York
------------------------------------------------------
A class action lawsuit has been filed against Loser Machine, LLC.
The case is styled as Frankie Monegro, on behalf of himself and all
others similarly situated v. Loser Machine, LLC, Case No.
1:21-cv-02111 (S.D.N.Y., March 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Loser Machine's -- https://www.losermachine.com/ -- is located in
Irvine, CA, and is part of the Electronic Equipment Repair Services
Industry..[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
LOUISIANA: DoC Sued for Detaining People Past Release Dates
-----------------------------------------------------------
Jacqueline DeRobertis, writing for The Advocate, reports that a
formerly incarcerated man has filed a lawsuit arguing that the
Louisiana Department of Corrections regularly and knowingly
imprisons people past their release dates — a practice the
department has been aware of for the better part of a decade.
This is the second such lawsuit filed on the subject, coming
several months after the Department of Justice opened a statewide
civil investigation into release practices at DOC facilities.
Joel Giroir, 36, was imprisoned at the St. Tammany Parish Jail when
he filed the lawsuit, in which he seeks to represent other inmates
in the same situation. He claims he should have been released on
Jan. 26 because "he had already served at least 64 days" past his
sentence.
The lawsuit, filed in Baton Rouge federal court, says DOC Secretary
James LeBlanc acknowledged in a deposition that the department's
detaining people beyond their release dates is a "big problem," but
has failed to make meaningful changes to the process that continues
to deny people their freedom.
Ken Pastorick, DOC spokesperson, said in a statement that the
lawsuit's allegations "are completely without merit." The current
state code "makes time computation a very complex process" that
requires cooperation among multiple government agencies in the
criminal justice system.
"We're always working to improve the sentence time computation
process," he said. "The DOC takes this very seriously, and has
proactively taken steps to improve...including streamlining the
overall structure within DOC and strongly advocating for
legislative changes to simplify Louisiana's complicated sentencing
statutes with a felony class system."
Giroir seeks to represent all people who have been or will be
impacted by DOC release procedures that detain them beyond their
sentences. The lawsuit was filed by the Promise of Justice
Initiative, Most & Associates and Chicago-based law firm Loevy &
Loevy.
DOC officials have known since a 2012 internal investigation that
the agency imprisons "over 2,000 people each year" past their
release dates, the lawsuit alleges. Other reports from 2017 and
2019 have reiterated the department's ongoing crisis.
Apart from the legal ramifications of over-detention, the DOC
estimated in a 2019 grant application that "housing alone costs the
state an extra $2.8M per year," according to the lawsuit.
In addition to not keeping a record or count of the people who are
serving longer than their sentence -- other than through specific
investigations -- the lawsuit says the release date time
calculation process involves a convoluted system for transferring
paperwork from one agency to another, often requiring records to be
physically driven across the state for hand delivery.
Many of Louisiana's inmates, like Giroir, are also housed in local
jails or private prisons, which means DOC officials must rely on
parish-by-parish cooperation to gather the necessary paperwork.
This process has yet to be significantly improved upon, the lawsuit
says, and no one has been held accountable for past failures.
"Louisiana's overdetention problem is uniquely severe," said
Stephen Weil of Loevy & Loevy. "We aren't aware of any other state
that struggles with time calculation at this level, but the DOC
seems content to impose punishment no court ever ordered, simply
because it can't be bothered to fix this glaring problem."
After he filed the lawsuit Feb. 19, a Friday, Giroir was released
from DOC custody the following Monday, his attorney said. [GN]
MDL 2924: Court Issues Order on Second Round of Motions to Dismiss
------------------------------------------------------------------
In the case, IN RE: ZANTAC (RANITIDINE) PRODUCTS LIABILITY
LITIGATION. THIS DOCUMENT RELATES TO: ALL CASES, MDL No. 2924 (S.D.
Fla.), Judge Robin L. Rosenberg of the U.S. District Court for the
Southern District of Florida enters Order on Second Round of
Motions to Dismiss.
On March 1, 2021, the Court issued a paperless Order setting the
briefing schedule for responsive motions directed to the Amended
Master Personal Injury Complaint ("AMPIC"), the Consolidated
Amended Consumer Economic Loss Class Action Complaint, and the
Consolidated Medical Monitoring Class Action Complaint. The Court
elicited a joint submission from the parties on proposals for page
limitations and structure for the responsive motions. Judge
Rosenberg has received and reviewed the parties' joint submission.
She now enters the Order regarding the next round of responsive
motions.
Upon consideration of the parties' respective proposals in the
joint submission, the Judge adopts the Defendants' proposal for the
categories of motions to be filed and the page limits for the
briefing of each motion. She does so for two reasons. First, she
holds that the Defendants are in the best position to know the
arguments that they intend make in their motions and the extent of
briefing that those arguments will require. Second, she notes
that, under the Federal Rules of Civil Procedure and the Local
Rules for the Southern District of Florida, a defendant is entitled
to file a 20-page responsive motion to a complaint. While the
Defendants propose more motions and larger page limits than the
Plaintiffs propose, she finds that the Defendants' proposal is
certainly a more efficient approach than a scenario where
Plaintiffs would be required to respond to and the Court would be
required to rule on a 20-page responsive motion from each of the
dozens of Defendants named in the litigation.
Therefore, the Judge adopts the following approach for the motion
categories and page limits:
Motion Response
Reply
Omnibus motion to dismiss on
behalf of all Defendants directed 45 pages 45 pages
23 pages
to the AMPIC
Omnibus motion to dismiss on 40 pages 40 pages
20 pages
behalf of all Defendants directed
to the two Master Class Complaints
Brand Manufacturer Defendants' 20 pages 20 pages
10 pages
collective motion on pre-emption
directed to all Master Complaints
Brand Manufacturer Defendants' 20 pages 20 pages
10 pages
collective motion directed to the
RICO claim
Brand Manufacturer Defendants' 20 pages 20 pages
10 pages
collective motion directed to
Plaintiffs' "innovator liability"
theory
Generic Manufacturer 35 pages 35 pages
18 pages
Defendants' collective motion on
pre-emption directed to all
Master Complaints
Retailer Defendants' collective 20 pages 20 pages
10 pages
motion to dismiss for failure to
state a claim directed to all
Master Complaints
Distributor Defendants' 20 pages 20 pages
10 pages
collective motion to dismiss for
failure to state a claim directed to
all Master Complaints
Store Brand Defendants' 20 pages 20 pages
10 pages
collective motion to dismiss for
failure to state a claim directed to
all Master Complaints
Foreign Defendants' collective 20 pages 20 pages
10 pages
motion challenging personal
jurisdiction
Defendants' collective motion on 25 pages 25 pages
13 pages
personal jurisdiction, venue, and
Lexecon issues
Under Rule 7.1(c)(2) of the Local Rules for the Southern District
of Florida, title pages preceding the first page of text, tables of
contents, tables of citations, "request for hearing" sections,
signature pages, certificates of good faith conferences, and
certificates of services will not be counted toward the above page
limits.
Per the Court's paperless Order at docket entry 2892, the deadline
for the Defendants to file all of the above responsive motions is
March 24, 2021. The Judge amends the Order regarding the response
and reply deadlines as follows: The Plaintiffs will file responses
to the following motions by April 23, 2021: (1) Brand Manufacturer
Defendants' collective motion on pre-emption directed to all Master
Complaints; (2) Brand Manufacturer Defendants' collective motion
directed to the RICO claim; (3) Brand Manufacturer Defendants'
collective motion directed to Plaintiffs' "innovator liability"
theory; (4) Generic Manufacturer Defendants' collective motion on
pre-emption directed to all Master Complaints; (5) Foreign
Defendants' collective motion challenging personal jurisdiction;
(6) Defendants' collective motion on personal jurisdiction, venue,
and Lexecon issues. The deadline for the Defendants to file
replies to these motions is May 7, 2021.
The Plaintiffs will file responses to the following motions by May
7, 2021: (1) Omnibus motion to dismiss on behalf of all Defendants
directed to the AMPIC; (2) Omnibus motion to dismiss on behalf of
all Defendants directed to the two Master Class Complaints; (3)
Retailer Defendants' collective motion to dismiss for failure to
state a claim directed to all Master Complaints; (4) Distributor
Defendants' collective motion to dismiss for failure to state a
claim directed to all Master Complaints; (5) Store Brand
Defendants' collective motion to dismiss for failure to state a
claim directed to all Master Complaints. The deadline for the
Defendants to file replies to these motions is May 21, 2021.
The motions will not incorporate by reference briefing from any
prior motions, nor will the motions incorporate by reference
briefing in other motions filed in this round of motions. The
parties' briefing will not be in the form of summary charts or
appendices. Any state-specific analysis will be contained within
the above page limits.
Finally, the Judge holds that the Defendants have represented to
the Court that they may not raise all of their state-specific
arguments in this round of motions, but rather may focus on certain
predominant state-law issues. The parties agree that, to the
extent that the Defendants elect to brief certain state-specific
issues in this round of motions, the Plaintiffs need only respond
and the Court need only rule on the issues raised. To the extent
that other state-specific issues become relevant at a later stage
of the litigation, such as at the bellwether trial stage, the
parties agree that they may seek leave of the Court to raise the
issues at that time.
A full-text copy of the Court's March 5, 2021 Order is available at
https://tinyurl.com/4vnsxmyf from Leagle.com.
MENTAL HEALTH RESOURCES: Spencer Seeks Unpaid Overtime Premiums
---------------------------------------------------------------
Courtney Spencer, individually and on behalf of all others
similarly situated, Plaintiffs, v. Mental Health Resources, Inc.,
Defendant, Case No. 21-cv-00121, (D. N.M., February 12, 2021),
seeks to recover minimum wages, liquidated damages, prejudgment and
post-judgment interest, reasonable attorneys' fees and costs of
this action under the Fair Labor Standards Act and the New Mexico
Minimum Wage Act.
Mental Health Resources is a non-profit organization that provides
mental health case management services for individuals enrolled in
government sponsored health insurance plans. Spencer performed case
management services for its health plan customers as a Care
Coordination Employee. He claims to be denied overtime pay when he
worked more than 40 hours in an individual workweek. [BN]
Plaintiff is represented by:
Travis M. Hedgpeth, Esq.
THE HEDGPETH LAW FIRM, PC
3050 Post Oak Blvd., Suite 510
Houston, TX 77056
Telephone: (281) 572-0727
Facsimile: (281) 572-0728
Email: travis@hedgpethlaw.com
- and -
Jack L. Siegel, Esq.
Stacy W. Thomsen, Esq.
SIEGEL LAW GROUP PLLC
4925 Greenville, Suite 600
Dallas, TX 75206
Tel: (214) 790-4454
Fax: (469) 339-0204
Email: jack@siegellawgroup.biz
stacy@siegellawgroup.biz
MICROSOFT CORP: Agreed Protective Order Entered in Vance BIPA Suit
------------------------------------------------------------------
In the case, STEVEN VANCE, et al., Plaintiffs v. MICROSOFT
CORPORATION, Defendant, Case No. 2:20-cv-01082-JLR, Judge James L.
Robart of the U.S. District Court for the Western District of
Washington, Seattle, entered a Stipulated Protective Order.
Discovery in the action is likely to involve production of
confidential, proprietary, or private information for which special
protection may be warranted. Accordingly, the parties stipulate to
and petition the Court to enter the Stipulated Protective Order.
Under LCR 26(c)(2), the parties began with the District's Model
Protective Order.
The "Confidential Material" means information designated as
"CONFIDENTIAL" by the Producing Party that falls within one or more
of the following categories: (a) information prohibited from
disclosure by statute; (b) research, technical, commercial,
marketing, sales, or financial information that the Producing Party
has maintained as confidential; (c) court records, whether in this
District or other courts, currently maintained under seal; (d)
information subject to a non-disclosure or confidentiality
agreement; (e) third party commercially sensitive information; (f)
medical information concerning any individual; (g) personal
identity information; (h) income tax returns (including attached
schedules and forms), W-2 forms and 1099 forms; (i) personnel or
employment records of a person who is not a party to the case; or
(j) any information that the Producing Party reasonably believes to
be subject to federal, state or foreign data protection laws or
other privacy obligations. Information or documents that are
available to the public may not be designated as Confidential
Material.
The "HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY" Material means
extremely sensitive materials that qualify as "CONFIDENTIAL" the
disclosure of which to another Party or Non-Party would create a
substantial risk of significant competitive or commercial
disadvantage to the Designating Party that could not be avoided by
less restrictive means.
Subject to the provisions of Paragraph 11 of the Order, which
address the treatment of work product materials containing
Protected Material, the protections conferred by this agreement
cover not only Protected Material, but also (1) any information
copied or extracted from Protected Material; (2) all copies,
excerpts, summaries, or compilations of Protected Material; and (3)
any testimony, conversations, or presentations by Parties or their
Counsel, Non-Parties, and/or Experts that might reveal Protected
Material. However, the protections conferred by the agreement do
not cover information that is in the public domain or becomes part
of the public domain through trial or otherwise.
Any Party or Non-Party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a
Designating Party's confidentiality designation is necessary to
avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the litigation, a
party does not waive its right to challenge a confidentiality
designation by electing not to mount a challenge promptly after the
original designation is disclosed.
Subject to the provisions below, within 60 days after the
termination of the action, including all appeals, each Receiving
Party must destroy all Protected Material, including all copies,
extracts and summaries thereof. Even after final disposition of
the litigation, the confidentiality obligations imposed by the
agreement will remain in effect until a Designating Party agrees
otherwise in writing or a court orders otherwise.
The limited disclosure and transfer of Confidential Information
constituting or containing, or potentially constituting or
containing, biometric information or biometric identifiers, as
defined by BIPA, 740 ILCS 14/10, including the Diversity in Faces
Dataset, as that term is defined in the Plaintiffs' Class Action
Complaint, is permitted under this Order pursuant to 740 ILCS
14/25(a), if done solely for purposes of the litigation and in
compliance with the terms of the Order.
A full-text copy of the Court's March 5, 2021 Stipulated Protective
Order is available at https://tinyurl.com/4yxp5yax from
Leagle.com.
Stephen M. Rummage -- steverummage@dwt.com -- Xiang Li, DAVIS
WRIGHT TREMAINE LLP, in Seattle, Washington.
Elizabeth B. Herrington -- beth.herrington@morganlewis.com --
Admitted pro hac vice, Tyler Zmick -- tyler.zmick@morganlewis.com
-- Admitted pro hac vice, MORGAN LEWIS & BOCKIUS, in Chicago,
Illinois, Attorneys for Defendant Microsoft Corporation.
Nicholas R. Lange, David B. Owens -- david@loevy.com -- LOEVY &
LOEVY, in Seattle, Washington.
Scott R. Drury -- drury@loevy.com -- Admitted pro hac vice, Mike
Kanovitz -- mike@loevy.com -- Admitted pro hac vice, LOEVY & LOEVY,
in Chicago, Illinois.
Gary Lynch -- glynch@carlsonlynch.com -- Admitted pro hac vice,
CARLSON LYNCH LLP, in Pittsburgh, Pennsylvania.
Katrina Carroll -- kcarroll@carlsonlynch.com -- Admitted pro hac
vice, Nicholas R. Lange -- nlange@carlsonlynch.com -- Admitted pro
hac vice, CARLSON LYNCH LLP, in Chicago, Illinois, Attorneys for
Plaintiffs.
MONEYGRAM INT'L: Rosen Law Firm Reminds of April 30 Deadline
------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, on March 1
disclosed that it has filed a class action lawsuit on behalf of
purchasers of the securities of MoneyGram International, Inc.
(NASDAQ: MGI) between June 17, 2019 and February 22, 2021,
inclusive (the "Class Period"). A class action lawsuit has already
been filed. If you wish to serve as lead plaintiff, you must move
the Court no later than April 30, 2021.
SO WHAT: If you purchased MoneyGram 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 MoneyGram class action, go to
http://www.rosenlegal.com/cases-register-2046.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than April 30, 2021. A
lead plaintiff is a representative party acting on behalf of other
class members in directing the litigation.
WHY ROSEN LAW: We encourage investors to select qualified counsel
with a track record of success in leadership roles. Often, firms
issuing notices do not have comparable experience or resources. The
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation. Rosen Law Firm has achieved the
largest ever securities class action settlement against a Chinese
Company. Rosen Law Firm was Ranked No. 1 by ISS Securities Class
Action Services for number of securities class action settlements
in 2017. The firm has been ranked in the top 3 each year since 2013
and has recovered hundreds of millions of dollars for investors. In
2019 alone the firm secured over $438 million for investors. In
2020 founding partner Laurence Rosen was named by law360 as a Titan
of Plaintiffs' Bar. Many of the firm's attorneys have been
recognized by Lawdragon and Super Lawyers.
DETAILS OF THE CASE: According to the lawsuit, defendants
throughout the Class Period made false and/or misleading statements
and/or failed to disclose that: (1) XRP, the cryptocurrency that
MoneyGram was utilizing as part of its Ripple partnership, was
viewed as an unregistered and therefore unlawful security by the
SEC; (2) in the event that the SEC decided to enforce the
securities laws against Ripple, MoneyGram would be likely to lose
the lucrative stream of market development fees that was critical
to its financial results throughout the Class Period; and (3) as a
result, defendants' public statements were materially false and/or
misleading at all relevant times. When the true details entered the
market, the lawsuit claims that investors suffered damages.
To join the MoneyGram class action, go to
http://www.rosenlegal.com/cases-register-2046.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]
MONTCLAIR SCHOOL: Faces Class Action Lawsuit Over Remote Learning
-----------------------------------------------------------------
TAPintoMontclair reports that a class-action lawsuit has been filed
in Federal Court against the Montclair School District after
teachers and staff refused to return to in-person instruction,
according to documents.
Eight families filed after retaining attorney Keri Donohue
Avellini.
Avellini is also the attorney representing families suing the South
Orange-Maplewood School district, where she is the parent of a
special needs student in the South Orange-Maplewood School
district. In the separate suit, families allege members are
conducting an illegal strike by refusing to return to classrooms.
Like Montclair, the South Orange-Maplewood School district is also
separately suing the teachers union, after members refused to
return to classrooms.
Since March of 2020, Montclair educators have been teaching classes
remotely. Despite three attempts to reopen in September, November
and January, limited staffing prevented Montclair Schools from
reopening.
Montclair students were set to return to in-person learning on
January 25. However, the district changed course after the
Montclair Education Association union informed the superintendent
of their refusal to return to work until demands were met. Without
the set amount of staff to man the schools, Montclair schools were
forced to remain remote.
The lawsuit filed by parents alleges that the circumstances have
denied their children the right to an effective education.
On February 18, the group of Plaintiffs filed a class action
lawsuit in United States Federal Court, for the District of New
Jersey. Named as defendants in the suit are the Montclair School
District, the Board of Education and the Superintendent.
Causes of action in the suit cite various violations of
constitutional rights (both state and federal) denying students
their right to an education (in-person learning), whereas, the
lawsuit seeks declaratory relief and injunction from the Judge for
schools be re-opened for in-person learning 5 days per week
immediately.
The attorney for the Plaintiffs are representing them pro bono.
Avellini is also a parent of a special-ed elementary student in the
SOMA case.
"With the onset of the COVID-19 pandemic, defendants have
effectively put the interests of the children they serve dead
last," the lawsuit states.
"With their arbitrary rules that fly in the face of the
recommendations of experts across different disciplines, the
children of the district have been deprived of their right to an
education. Sadly, there has been no one to speak for our children
over the last 12 months as they silently suffered with remote
learning. This lawsuit seeks to remedy the situation on their
behalf."
Steve Baffico, one of the parents filing the suit, is a
spokesperson for the group. He said, "Importantly, our lawsuit
forcefully creates an active voice and a seat at the negotiating
table for Plaintiffs to act on behalf of Montclair families,
students, those with special needs, those experiencing challenging
circumstances as a result of continued remote learning, and those
who have been left far behind as a result of no visible prospect
for return to in-person learning. The children are the most
critical constituent yet have not had a voice and/or an advocate to
this point to affect an outcome in their favor. Our suit provides
that voice and creates an active role for us in finding a
resolution and getting the schools open for in-person learning."
Superintendent Jonathan Ponds is in agreement with parents and had
filed suit against the MEA, in an effort to prevent litigation,
officials mentioned.
The class action lawsuit has been brought on the heels of the
district's own litigation against the MEA, after members refused to
return for a hybrid learning schedule in January. However, MEA
leaders have maintained that until they are provided proof that
buildings are safe, they will not return to in-person learning.
District officials stated that students 'suffering' was the
reasoning for filing the lawsuit against the teacher's union to
force their return.
In an earlier statement, the MEA urged the superintendent to drop
the suit, "While this has been difficult, we believe we must come
to a solution that gets our students and staff back into the
buildings as soon as they are ready. At this time, we urge
Superintendent Dr. Ponds and the district to drop their case
against the MEA and come back to the table ready to collaborate on
a plan that facilitates the safe and organized return to in-person
instruction. That's all we have wanted and all we still want."
The MEA has not yet weighed-in on the parents' lawsuit. [GN]
MULTIPLAN CORP: Kaskela Law Announces Securities Class Action
-------------------------------------------------------------
Kaskela Law LLC announces that a shareholder class action lawsuit
has been filed against MultiPlan Corporation ("MultiPlan" or the
"Company") (NYSE:MPLN), formerly known as Churchill Capital Corp.
III ("Churchill III") (NYSE:CCXX), on behalf of investors.
Churchill III was formed in October 2019 as a special purpose
acquisition ("SPAC") vehicle, and on July 12, 2020, announced that
it would combine with privately held MultiPlan. According to the
complaint, in connection with the proposed combination Churchill
III filed a defective proxy statement with the SEC on September 18,
2020, which contained numerous materially false and misleading
statements and omissions. On the basis of the defective proxy
statement, on October 7, 2020, Churchill III investors voted to
approve the business combination.
On November 11, 2020 - one month after the close of the Merger -
Muddy Waters published a report entitled "MultiPlan: Private Equity
Necrophilia Meets the Great 2020 Money Grab." Among other things,
the report reveled that: (i) MultiPlan was in the process of losing
its largest client, UnitedHealthcare, which was estimated to cost
Churchill III up to 35% of its revenues and 80% of its levered free
cash flow within two years; (ii) MultiPlan was in significant
financial decline because of its fundamentally flawed business
model, which profited from excessively high healthcare costs; (iii)
UnitedHealthcare had purportedly launched a competitor, Naviguard,
to reduce its business with MultiPlan and bring the over-priced and
conflicted services offered by MultiPlan inhouse; and (iv)
MultiPlan had suffered from material, undisclosed pricing pressures
that had caused it to slash the "take rate" it charged customers in
half in some instances and falsely characterized revenue declines
as "idiosyncratic" when in fact they were due to sustained,
negative pricing trends afflicting MultiPlan's business. Following
this report, shares of MultiPlan's stock significant declined in
value, and currently trade below $7.00 per share.
MultiPlan stockholders who purchased or acquired CCXX securities
prior to September 14, 2020 are encouraged to contact Kaskela Law
LLC (D. Seamus Kaskela, Esq.) at (484) 258 - 1585, or by email at
skaskela@kaskelalaw.com or online at
https://kaskelalaw.com/case/multiplan-corp/, for additional
information about this action and their legal rights and options.
Kaskela Law LLC exclusively represents investors in securities
fraud, corporate governance, and merger & acquisition litigation.
For additional information about Kaskela Law LLC please visit
www.kaskelalaw.com
CONTACT:
D. Seamus Kaskela, Esq.
KASKELA LAW LLC
18 Campus Boulevard, Suite 100
Newtown Square, PA 19073
(484) 258 - 1585
(888) 715 - 1740
www.kaskelalaw.com
skaskela@kaskelalaw.com [GN]
NASHVILLE WRAPS: Monegro Files ADA Suit in S.D. New York
--------------------------------------------------------
A class action lawsuit has been filed against Nashville Wraps, LLC.
The case is styled as Frankie Monegro, on behalf of himself and all
others similarly situated v. Nashville Wraps, LLC, Case No.
1:21-cv-02136-AT (S.D.N.Y., March 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Nashville Wraps -- https://www.nashvillewraps.com/ -- offers a huge
selection of wholesale packaging supplies and products.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
NEW YORK CITY: Seeks March 18 Extension to Oppose Class Cert. Bid
------------------------------------------------------------------
In the class action lawsuit captioned as Local 3621, et al., v.
City of New York et al., Case No. 1:18-cv-04476-LJL-SLC (S.D.N.Y.),
the Defendants asks the Court to enter an order extending the time
to oppose the Plaintiffs' motion for class certification until
March 18, 2021.
The Plaintiffs' Reply is due April 1, 2021 should the Court grant
the Defendants' request, according to the letter motion,
New York City comprises 5 boroughs sitting where the Hudson River
meets the Atlantic Ocean.
A copy of the Defendants' second letter motion dated March 2, 2020
is available from PacerMonitor.com at https://bit.ly/2NeuDEx at no
extra charge.[CC]
NOVA HOME: Asks Ct. to Postpone Conditional Certification Briefing
------------------------------------------------------------------
In the class action lawsuit captioned as YELENA SAVINOVA and
YEMILIYA MAZUR, individually and on behalf of all others similarly
situated, v. NOVA HOME CARE, LLC, SOUTHERN HOME CARE SERVICES,
INC., ALEH HULIAVATSENKA, and YULIYA NOVIKAVA, Case No.
3:20-cv-01612-MPS (D. Conn.), the Defendants Nova Home Care, LLC,
and Aleh Huliavatsenka jointly move the Court for an Order
postponing the briefing schedule on Plaintiff's Motion for
Conditional Certification pending a scheduling conference with the
Court.
The Plaintiffs filed their Motion on February 19, 2021. However, as
stated in the parties' Joint Preliminary Planning Report, the
Plaintiffs and Defendants are unable to agree on the appropriate
discovery and briefing schedule related to the Plaintiffs' Motion.
The Defendants request discovery on issues related to
certification; the Plaintiffs want conditional certification to be
decided without discovery. As such, the parties have requested a
scheduling conference pursuant to Fed. R. Civ. P. 16 to address
these scheduling issues. This extension of time is necessary so the
Court may resolve the disputed issue raised in the Joint
Preliminary Planning Report.
Pursuant to Local Rule 7(b)(2), the Defendants are required to
respond to the Plaintiffs' Motion within 21 days, or on or before
March 12, 2021. Given the current dispute between the parties, the
Defendants respectfully move that the deadlines for responding to
Plaintiffs' Motion be postponed until the scheduling conference has
been held and the Court has entered its Order regarding
certification-based discovery and briefing schedule(s) with regard
to Plaintiff's Motion, the Defendants say.
Nova Home is a provider of home health care in Farmington Hills,
Michigan.
A copy of the Defendants' motion dated March 3, 2020 is available
from PacerMonitor.com at https://bit.ly/38CwDhq at no extra
charge.[CC]
The Defendants Nova Home Care, LLC and Aleh Hhuliavatsenka are
represented by:
Glenn A. Duhl, Esq.
Adam J. Lyke, Esq.
Zangari Cohn Cuthbertson, Esq.
DUHL & GRELLO P.C.
59 Elm Street, Suite 400
New Haven, CT 06510
Telephone: (203) 786-3709
Facsimile: (203) 782-2766
E-mail: gduhl@zcclawfirm.com
alyke@zcclawfirm.com
NURTURE INC: Soto Slams Toxic Substances in Baby Food
-----------------------------------------------------
Stephanie Soto, individually, and on behalf of those similarly
situated, Plaintiff, v. Nurture, Inc., Defendant, Case No.
21-cv-01271 (S.D. N.Y., February 11, 2021), seeks injunctive relief
resulting from negligent misrepresentation, fraud, unjust
enrichment, breaches of express warranty, implied warranty of
merchantability and for violation of the Magnuson Moss Warranty Act
and New York General Business Law (Consumer Protection Statutes).
Nurture, Inc. manufactures, distributes, labels and sells flavored
rice puffs to babies in numerous varieties.
Soto alleges that the rice puffs contain significant levels of
arsenic, mercury, lead, cadmium and perchlorate, all known to pose
health risks to humans and especially infants. [BN]
Plaintiff is represented by:
Spencer Sheehan, Esq.
SHEEHAN & ASSOCIATES, P.C.
60 Cutter Mill Rd., Ste. 409
Great Neck NY 11021-3104
Tel: (516) 268-7080
Fax: (516) 234-7800
Email: spencer@spencersheehan.com
NURTURE INC: Strobel Files Suit in S.D. New York
------------------------------------------------
A class action lawsuit has been filed against Nurture, Inc. The
case is styled as Jessica Strobel, individually and on behalf of
all others similarly situated v. Nurture, Inc. doing business as:
Happy Family Brands, Case No. 1:21-cv-02129-UA (S.D.N.Y., March 11,
2021).
The nature of suit is stated as Other Fraud.
Happy Family -- https://www.happyfamilyorganics.com/ -- is an
organic baby and toddler food company in the US.[BN]
The Plaintiff is represented by:
Jonathan K. Tycko, Esq.
TYCKO & ZAVAREEI LLP
1828 L Street NW, Suite 1000
Washington, DC 20036
Phone: (202) 973-0900
Fax: (202) 973-0950
Email: jtycko@tzlegal.com
NUTANIX INC: Rosen Law Reminds Investors of March 22 Deadline
-------------------------------------------------------------
WHY: Rosen Law Firm, a global investor rights law firm, announces
the re-opening of the lead plaintiff process for purchasers of the
securities of Nutanix, Inc. (NASDAQ: NTNX) between March 1, 2018
and May 30, 2019, inclusive (the "Class Period"). A class action
lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than March 22, 2021.
SO WHAT: If you purchased Nutanix 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 Nutanix class action, go to
http://www.rosenlegal.com/cases-register-1565.htmlor call Phillip
Kim, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or
cases@rosenlegal.com for information on the class action. A class
action lawsuit has already been filed. If you wish to serve as lead
plaintiff, you must move the Court no later than March 22, 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 issued a
series of material misstatements and omitted material facts in the
Company's public filings, press releases, and other documents
concerning Nutanix's: (1) sales productivity; (2) lead generation
spending; (3) sales personnel hiring; and (4) revenue and customer
growth. When the true details entered the market, the lawsuit
claims that investors suffered damages.
To join the Nutanix class action, go to
http://www.rosenlegal.com/cases-register-1565.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]
OCEANBOX HOLDINGS: Monegro Files ADA Suit in S.D. New York
----------------------------------------------------------
A class action lawsuit has been filed against Oceanbox Holdings
LLC. The case is styled as Frankie Monegro, on behalf of himself
and all others similarly situated v. Oceanbox Holdings LLC, Case
No. 1:21-cv-02114 (S.D.N.Y., March 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
OceanBox -- https://www.oceanbox.com/ -- delivers fresh, portioned
and sustainably sourced seafood straight from the dock to the
door.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
ONTRAK INC: The Klein Law Firm Reminds of May 3 Deadline
--------------------------------------------------------
The Klein Law Firm announces that a class action complaint has been
filed on behalf of shareholders of Ontrak, Inc. (NASDAQ: OTRK)
alleging that the Company violated federal securities laws.
Class Period: November 5, 2020 and February 26, 2021
Lead Plaintiff Deadline: May 3, 2021
Learn more about your recoverable losses in OTRK:
http://www.kleinstocklaw.com/pslra-1/ontrak-inc-loss-submission-form?id=13618&from=5
The filed complaint alleges that Ontrak, Inc. made materially false
and/or misleading statements and/or failed to disclose that: (1)
Ontrak's largest customer evaluated the Company on a provider
basis, valuing Ontrak's performance based on achieving the lowest
cost per medical visit rather than clinical outcomes or medical
cost savings; (2) as a result, Ontrak's largest customer did not
find the Company's program to be effective and was reasonably
likely to terminate its contract with Ontrak; (3) because this
customer accounted for a significant portion of the Company's
revenue, the loss of the customer would have an outsized impact on
Ontrak's financial results; and (4) 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 May 3, 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 OTRK 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]
ORGAIN LLC: Patenaude Hits Artificial Vanilla in Almond Milk
------------------------------------------------------------
Douglas Patenaude, individually and on behalf of all others
similarly situated, Plaintiff v. Orgain, LLC, Defendant, Case No.
21-cv-40018 (D. Mass., February 12, 2021), seeks to recover actual
damages, statutory damages, attorney fees and costs for breaches of
express warranty, implied warranty of merchantability for violation
of the Food, Drug and Cosmetic Act and Massachusetts food labeling
laws.
Orgain distributes, markets, labels and sells "Unsweetened VANILLA
Orgain Organic Protein ALMONDMILK." Patenaude alleges that their
vanilla-flavored almond milk contain vanilla flavor or vanilla
extract despite its labelling indicating "natural flavor." [BN]
Plaintiff is represented by:
Peter N. Wasylyk, Esq.
LAW OFFICES OF PETER N. WASYLYK
1307 Chalkstone Avenue
Providence, RI 02908
Telephone: (401) 831-7730
Facsimile: (401) 861-6064
Email: pnwlaw@aol.com
- and -
John T. Longo, Esq.
LAW OFFICE OF JOHN T. LONGO
177 Huntington Avenue, 17th Fl, Suite 5
Boston, MA 02115
Tel: (617) 863-7550
Email: jtlongo@jtlongolaw.com
PAYCOR INC: Stang Seeks Court-Authorized Notice to FLSA Collective
------------------------------------------------------------------
In the class action lawsuit captioned as ADAM QUINCY STANG, on
behalf of himself and all others similarly situated, v. PAYCOR,
INC., Case No. 1:20-cv-00882-MRB (S.D. Ohio), the Plaintiff asks
the Court to enter an order
1. authorizing notice to the proposed collective;
2. directing Paycor to produce a computer-readable data file
containing the names, last known mailing addresses, last
known telephone numbers, last known personal and work
email addresses, last four digits of Collective Members'
Social Security numbers, and work locations and dates of
employment for all Collective Members; and
3. authorizing the issuance of notice and a reminder notice
to Collective Members by U.S. Mail, email, and text
message, and the creation of a standalone website for opt-
ins to electronically submit consent forms.
Plaintiff Stang moves for Court-authorized notice to his proposed
collective under the Fair Labor Standards Act (FLSA).
Paycor, a software company headquartered in Cincinnati, Ohio,
uniformly fails to pay its Sales Representatives overtime wages
because it classifies them as "exempt" from the overtime
requirements of the FLSA. With this Motion, Plaintiff, a former
Sales Representative, seeks to protect the rights of
similarly-situated Paycor employees by notifying them of this
lawsuit and providing them with the opportunity to join it, thereby
preserving their claims.
A copy of the Plaintiff's motion dated March 3, 2020 is available
from PacerMonitor.com at https://bit.ly/3lcqMVd at no extra
charge.[CC]
The Attorneys for the Plaintiff and the putative Class and
Collective, are:
Melissa Stewart, Esq.
Chauniqua D. Young, Esq.
Mikael Rojas, Esq.
OUTTEN & GOLDEN LLP
685 Third Avenue, 25th Floor
New York, NY 10017
Telephone: (212) 245-1000
Facsimile: (646) 509-2060
E-mail: mstewart@outtengolden.com
cyoung@outtengolden.com
mrojas@outtengolden.com
- and -
Drew Legando, Esq.
MERRIMAN LEGANDO WILLIAMS &
KLANG, LLC
1360 W. 9th Street, Suite 200
Cleveland, OH 44113
Telephone: (216) 522-9000
Facsimile: 216-522-9007
E-mail: drew@merrimanlegal.com
PENSKE TRUCK: Class Claims in Zamora Dismissed With Leave to Amend
------------------------------------------------------------------
In the case, ANGEL ZAMORA, GABRIEL LOAIZA and JORGE GUILLEN,
individuals, on behalf of themselves and on behalf of all persons
similarly situated, Plaintiffs v. PENSKE TRUCK LEASING CO., L.P., a
Limited Partnership; and DOES 1 through 50, inclusive, Defendants,
Case No. 2:20-cv-02503-ODW (MRWx) (C.D. Cal.), Judge Otis D.
Wright, II, of the U.S. District Court for the Central District of
California granted the Defendant's to dismiss or strike the class
claims from the First Amended Complaint.
On Jan. 31, 2020, Plaintiffs Zamora, Loaiza, and Guillen, filed the
putative class action in the Los Angeles Superior Court against
their employer, Defendant Penske. On March 16, 2020, the Defendant
removed the case to the Court pursuant to the Class Action Fairness
Act, 28 U.S.C. Sections 1332, 1441, 1446, and 1453 ("CAFA").
The Plaintiffs moved to remand, and the Defendant moved to dismiss
the Complaint. The Court denied the motion to remand and granted
the motion to dismiss in part, with leave for the Plaintiffs to
amend. The Plaintiffs then filed their FAC.
The Plaintiffs bring the putative class action against Defendant on
behalf of themselves and the class they seek to represent. With
their FAC, the Plaintiffs again allege eight claims against the
Defendant: (1) violation of California Business and Professions
Code sections 17200, et seq. ("UCL"); (2) failure to pay overtime
compensation; (3) failure to pay minimum wages; (4) failure to
provide required meal periods; (5) failure to provide required rest
periods; (6) failure to provide accurate itemized statements; (7)
failure to reimburse employees for required expenses; and (8)
failure to pay wages when due.
The gist of the Plaintiffs' new factual allegations is that they
work on the Defendant's Los Angeles County Sheriff's fleet
maintenance team, and as part of their job tasks for the Defendant,
they repair and maintain police vehicles for Los Angeles County.
The FAC goes on to describe several ways in which Defendant
allegedly violated the UCL and applicable labor laws, based on the
Plaintiffs' personal experiences on the Defendant's Los Angeles
County Sheriff's fleet maintenance team.
Significantly, the Plaintiffs also bring their claims "on behalf of
a California class, defined as all individuals who are or
previously were employed by Defendant in California as non-exempt
employees at any time during the period beginning on the date four
(4) years prior to the filing of" the FAC. The Plaintiffs also
state, in perhaps every conclusory articulation possible, that the
action is appropriate for class certification.
Previously, the Court denied the Defendant's request to dismiss
class claims from the original Complaint. At the time, the Court
determined the Defendant's request was premature, and that the
sufficiency of class allegations was best determined on a motion
for class certification in due time. Nevertheless, in light of the
Plaintiffs' amendments in the FAC, the Defendant once again moves
to dismiss the Plaintiffs' class allegations.
The Defendant moves to dismiss the class allegations from the FAC
on the ground that the Plaintiffs fail to allege any factual basis
for the alleged class. It does not challenge the sufficiency of
the Plaintiffs' allegations insofar as they establish claims on
behalf of the Plaintiffs themselves; rather, the Defendant merely
argues the FAC is devoid of any factual basis for bringing the
Plaintiffs' claims on behalf of every non-exempt worker the
Defendant employed in all of California over the past four years.
The Defendant contends that the Plaintiffs' allegations, even taken
as true, show only that it is responsible for labor violations at a
single Los Angeles location, with respect to a handful of
individuals -- i.e., the mechanics who service police vehicles for
the Defendant's Los Angeles County Sheriff's fleet maintenance
team.
In opposition, the Plaintiffs maintain their claims are
sufficiently alleged because each claim is supported with factual
allegations regarding their personal experiences on the Los Angeles
County Sheriff's fleet maintenance team. They also emphasize that
each cause of action includes an allegation that the claim is
brought on behalf of the Plaintiffs and the Class. Thus, they
insist the Defendant's Motion is an improper attempt to prematurely
decide class certification under the guise of a motion to dismiss.
Over the Plaintiffs' protest, Judge Wright agrees with the
Defendant. He holds that the Plaintiffs' arguments suffer from a
basic logical disconnect. Whether the Plaintiffs adequately allege
claims on their own behalf is beside the point. The Plaintiffs do
not assert any factual support for their class allegations.
Rather, they merely allege that their claims are also brought on
behalf of the Class. Without any factual support, and especially
in light of the new facts in the FAC, the Judge finds such leaps
implausible.
Perhaps some or all of the Plaintiffs' claims can plausibly be
asserted on behalf of the putative Class in an amended pleading.
But for now, the class claims in the FAC are dismissed.
In summary, Judge Wright granted the Defendant's Motion to Dismiss
Class Claims from the FAC. The class allegations in the
Plaintiffs' FAC are dismissed with leave to amend. If the
Plaintiffs file a Second Amended Complaint, they must do so within
21 days of the Order, and the Defendant will file its response in
accordance with Rule 15(a)(3). If the Plaintiffs do not timely
file an amended pleading, the Defendant will file an Answer to the
FAC within 35 days of the Order.
A full-text copy of the Court's March 3, 2021 Order is available at
https://tinyurl.com/2ucj7xrh from Leagle.com.
PENUMBRA INC: Federman & Sherwood Reminds of March 16 Deadline
--------------------------------------------------------------
On January 15, 2021, a class action lawsuit was filed in the United
States District Court for the Northern District of California
against Penumbra, Inc. (NYSE: PEN). Federman & Sherwood reminds
current and former shareholders of Penumbra, Inc. that they only
have until Tuesday, March 16, 2021 to move the court for
appointment as a lead plaintiff in this case. The Complaint alleges
violations of Section 10(b) and Section 20(a) of the Securities
Exchange Act, and Rule 10b-5 promulgated thereunder.
If you purchased Penumbra, Inc. shares between August 3, 2020 and
December 15, 2020, have large losses as a result of your trades
during this time period, and wish to join this litigation as a
potential lead plaintiff, please contact our office as soon as
possible or visit:
https://www.federmanlaw.com/blog/federman-sherwood-reminds-investors-of-imminent-lead-plaintiff-deadline-in-securities-class-action-lawsuit-against-penumbra-inc/
Our firm seeks to recover damages on behalf of the Class.
Federman & Sherwood has extensive experience and expertise in
prosecuting securities litigation involving financial fraud. It
represents investors throughout the country in shareholder
litigation.
Contact:
Robin Hester
FEDERMAN & SHERWOOD
10205 North Pennsylvania Avenue
Oklahoma City, OK 73120
(405) 235-1560/Fax: (405) 239-2112
Email to: rkh@federmanlaw.com - www.federmanlaw.com [GN]
PENUMBRA INC: Saxena White Reminds Investors of March 16 Deadline
-----------------------------------------------------------------
Saxena White P.A. has filed a securities fraud class action lawsuit
(the "Class Action") in the United States District Court for the
Northern District of California against Penumbra, Inc. ("Penumbra"
or the "Company") (NYSE: PEN) on behalf of all persons or entities
who purchased or otherwise acquired Penumbra common stock between
August 3, 2020 and December 15, 2020, inclusive (the "Class
Period").
If you purchased Penumbra common stock during the Class Period and
wish to apply to be lead plaintiff, a motion on your behalf must be
filed with the Court no later than March 16, 2021. You may contact
David Kaplan (dkaplan@saxenawhite.com), an attorney and Director at
Saxena White P.A., to discuss your interests in the class action
and your rights regarding the appointment of lead plaintiff. You
may also retain counsel of your choice and need not take any action
at this time to be a class member.
As alleged in the Class Action, Penumbra and certain of its
executives ("Defendants") made statements to investors during the
Class Period that were materially false and misleading in violation
of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
and SEC Rule 10b-5. Specifically, the Class Action Complaint
alleges that Defendants made false and/or misleading statements
and/or failed to disclose material adverse facts regarding the
safety of the Company's Jet 7 Xtra Flex aspiration catheter, as
well as the Company's business, operations, and prospects. In
particular, Defendants failed to disclose to investors: (1) that
the Jet 7 Xtra Flex had known design defects that made it unsafe
for its normal use; (2) that Penumbra did not adequately address
the risk of Jet 7 Xtra Flex causing serious injury and deaths,
which had in fact already occurred; (3) that the Jet 7 Xtra Flex
was likely to be recalled due to its safety issues; and (4) as a
result, Penumbra's public statements as set forth above were
materially false and misleading at all relevant times.
The truth emerged through a series of partially corrective
disclosures that caused Penumbra's stock price to fall sharply,
destroying over $1 billion in market capitalization and causing
investors to suffer substantial losses.
You may obtain a copy of the Complaint and inquire about actively
joining the class action at
www.saxenawhite.com/cases/penumbra-inc.
Saxena White P.A., with offices in California, Florida, New York,
and Delaware is a leading national law firm focused on prosecuting
securities class actions, direct actions, derivative actions, and
other complex litigation on behalf of injured investors. Currently
serving as lead counsel in numerous major securities fraud class
actions nationwide, Saxena White has recovered billions of dollars
on behalf of defrauded investors.
CONTACT INFORMATION:
David Kaplan, Esq.
dkaplan@saxenawhite.com
Saxena White P.A.
12750 High Bluff Drive, Suite 475
San Diego, CA 92130
Tel: (858) 987-0860
Fax: (858) 369-0096
www.saxenawhite.com [GN]
PG&E CORP: Dismissal of PSPS Suit Under Appeal
----------------------------------------------
PG&E Corporation said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2021, for the
fiscal year ended December 31, 2020, that the appeal in the class
action suit involving Public Safety Power Shutoff (PSPS), is
pending.
On December 19, 2019, a complaint was filed in the United States
Bankruptcy Court for the Northern District of California naming
PG&E Corporation and Pacific Gas and Electric Company (the
Utility).
The plaintiff seeks certification of a class consisting of all
California residents and business owners who had their power shut
off by the Utility during the October 9, October 23, October 26,
October 28, or November 20, 2019 power outages and any subsequent
voluntary outages occurring during the course of litigation.
The plaintiff alleges that the necessity for the October and
November 2019 power shutoff events was caused by the Utility's
negligence in failing to properly maintain its electrical lines and
surrounding vegetation.
The complaint seeks up to $2.5 billion in special and general
damages, punitive and exemplary damages and injunctive relief to
require the Utility to properly maintain and inspect its power
grid. PG&E Corporation and the Utility believe the allegations are
without merit and intend to defend this lawsuit vigorously.
On January 21, 2020, PG&E Corporation and the Utility filed a
motion to dismiss the complaint or in the alternative strike the
class action allegations. The motion to dismiss and strike was
heard by the Bankruptcy Court on March 10, 2020, and on April 3,
2020, the Bankruptcy Court entered an order dismissing the action
without leave to amend, finding that the action was preempted under
the California Public Utilities Code.
On March 30, 2020, the Bankruptcy Court issued an opinion granting
the Utility's motion to dismiss this class action. The court held
that the plaintiff's class action claims are preempted as a matter
of law by section 1759 of the California Public Utilities Code and
thus the plaintiffs could not pursue civil damages.
The court stated that "any claim for damages caused by PSPS events
approved by the CaliforniaPublic Utilities Commission (CPUC), even
if based on pre-existing events that may or may not have
contributed to the necessity of the PSPS events, would interfere
with the CPUC's policy-making decisions."
On April 6, 2020, the plaintiff filed a notice of appeal of the
Bankruptcy Court decision dismissing the complaint. The plaintiff
has elected to have the appeal heard by the District Court, rather
than the Bankruptcy Appellate Panel. The plaintiff filed a
designation of the record and statement of the issues on April 20,
2020.
On June 8, 2020, the plaintiff filed its opening brief with the
District Court. The Utility filed its opposition brief on July 6,
2020. The plaintiff's reply brief was filed on August 4, 2020 with
a request for oral argument.
On October 20, 2020, the District Court denied the plaintiff's
request for oral argument and stated that if it wants to hear oral
argument, it will inform the parties and schedule a hearing.
The Utility is unable to determine the timing and outcome of this
proceeding.
PG&E Corporation, through its subsidiary, Pacific Gas and Electric
Company, engages in the sale and delivery of electricity and
natural gas to residential, commercial, industrial, and
agricultural customers in northern and central California, the
United States. On January 29, 2019, PG&E Corporation Inc. filed a
voluntary petition for reorganization under Chapter 11 in the U.S.
Bankruptcy Court for the Northern District of California.
PG&E CORP: Initial Approval of Settlement in Vataj Suit Pending
---------------------------------------------------------------
PG&E Corporation said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2021, for the
fiscal year ended December 31, 2020, that preliminary approval of
the settlement of the purported class action suit entitled, Vataj
v. Johnson et al., is pending.
On October 25, 2019, a purported securities class action was filed
in the United States District Court for the Northern District of
California, entitled Vataj v. Johnson et al.
The complaint named as defendants a current director and certain
current and former officers of PG&E Corporation. Neither PG&E
Corporation nor the Utility was named as a defendant.
The complaint alleged materially false and misleading statements
regarding PG&E Corporation's wildfire prevention and safety
protocols and policies, including regarding the Utility's public
safety power shutoffs, that allegedly resulted in losses and
damages to holders of PG&E Corporation's securities. The complaint
asserted claims under Section 10(b) and Section 20(a) of the
federal Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder, and sought unspecified monetary relief, attorneys' fees
and other costs.
On February 3, 2020, the District Court granted a stipulation
appointing Iron Workers Local 580 Joint Funds, Ironworkers Locals
40, 361 & 417 Union Security Funds and Robert Allustiarti co-lead
plaintiffs and approving the selection of the plaintiffs' counsel,
and further ordered the parties to submit a proposed schedule by
February 13, 2020. On February 20, 2020, the District Court issued
a scheduling order that required the amended complaint to be filed
by April 17, 2020.
On April 17, 2020, the plaintiffs filed an amended complaint
asserting the same claims. The amended complaint added PG&E
Corporation and a former officer of PG&E Corporation as defendants,
and no longer asserts claims against the other two officers of PG&E
Corporation previously named in the action.
On May 15, 2020 the officer defendants filed their motion to
dismiss in Vataj. On June 19, 2020, the lead plaintiff filed its
opposition to the motion to dismiss. On July 10, 2020 the officer
defendants filed their reply.
In October 2020, the parties reached a settlement agreement in
principle, and on October 29, 2020, filed a joint notice of
settlement, informing the District Court that they have agreed in
principle to settle the matter.
On February 16, 2021, plaintiffs filed a motion for preliminary
approval of the settlement with the District Court, and the
District Court issued an order terminating as moot the pending
motion to dismiss, without prejudice.
Pursuant to the settlement stipulation, subject to certain
conditions: (1) PG&E Corporation will pay $10 million into an
interest-bearing escrow account within 14 days after the District
Court's preliminary approval of the settlement; and (2) plaintiffs
and the Settlement Class (as defined in the stipulation of
settlement) will release the Released Persons (as defined the
stipulation of settlement, including PG&E Corporation and the
Utility, and each of their officers, directors, as well as the
current and former officers named in both the original and amended
complaints) from all claims that have been or could have been
asserted by or on behalf of PG&E Corporation shareholders that
relate to (a) allegations that were asserted or could have been
asserted in either of the complaints in Vataj, and (b) investments
in PG&E Corporation's stock during the relevant period specified in
the stipulated settlement.
The settlement is subject to the District Court's approval and its
terms may change as a result of the settlement approval process.
The preliminary settlement approval hearing is currently scheduled
for March 11, 2021. The final approval hearing is not yet
scheduled.
PG&E said, "If the District Court approves the settlement and
enters a judgment substantially in the form requested by the
parties, the settlement will become effective when certain
conditions specified in the settlement stipulation are satisfied,
including the expiration of any right to appeal the judgment."
PG&E Corporation, through its subsidiary, Pacific Gas and Electric
Company, engages in the sale and delivery of electricity and
natural gas to residential, commercial, industrial, and
agricultural customers in northern and central California, the
United States. On January 29, 2019, PG&E Corporation Inc. filed a
voluntary petition for reorganization under Chapter 11 in the U.S.
Bankruptcy Court for the Northern District of California.
PG&E CORP: Motions to Dismiss PERA New Mexico Suit Pending
----------------------------------------------------------
PG&E Corporation said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2021, for the
fiscal year ended December 31, 2020, that the motions to dismiss
the third amended complaint in the consolidated class action suit
entitled, In re PG&E Corporation Securities Litigation, headed by
the Public Employees Retirement Association of New Mexico ("PERA")
as lead plaintiff, are still pending.
In June 2018, two purported securities class actions were filed in
the United States District Court for the Northern District of
California, naming PG&E Corporation and certain of its current and
former officers as defendants, entitled David C. Weston v. PG&E
Corporation, et al. and Jon Paul Moretti v. PG&E Corporation, et
al., respectively.
The complaints alleged material misrepresentations and omissions
related to, among other things, vegetation management and
transmission line safety in various PG&E Corporation public
disclosures.
The complaints asserted claims under Section 10(b) and Section
20(a) of the federal Securities Exchange Act of 1934 and Rule 10b-5
promulgated thereunder, and sought unspecified monetary relief,
interest, attorneys' fees and other costs.
Both complaints identified a proposed class period of April 29,
2015 to June 8, 2018.
On September 10, 2018, the court consolidated both cases and the
litigation is now denominated In re PG&E Corporation Securities
Litigation. The court also appointed the Public Employees
Retirement Association of New Mexico ("PERA") as lead plaintiff.
The plaintiff filed a consolidated amended complaint on November 9,
2018.
After the plaintiff requested leave to amend its complaint to add
allegations regarding the 2018 Campfire, the plaintiff filed a
second amended consolidated complaint on December 14, 2018.
Due to the commencement of the Chapter 11 Cases, PG&E Corporation
and the Utility filed a notice on February 1, 2019, reflecting that
the proceedings were automatically stayed as to PG&E Corporation
and the Utility pursuant to section 362(a) of the Bankruptcy Code.
On February 15, 2019, PG&E Corporation and the Utility filed a
complaint in Bankruptcy Court against the plaintiff seeking
preliminary and permanent injunctive relief to extend the stay to
the claims alleged against the individual officer defendants.
On February 22, 2019, a third purported securities class action was
filed in the United States District Court for the Northern District
of California, entitled York County on behalf of the York County
Retirement Fund, et al. v. Rambo, et al.
The complaint names as defendants certain current and former
officers and directors, as well as the underwriters of four public
offerings of notes from 2016 to 2018. Neither PG&E Corporation nor
the Utility is named as a defendant. The complaint alleges material
misrepresentations and omissions in connection with the note
offerings related to, among other things, PG&E Corporation's and
the Utility's vegetation management and wildfire safety measures.
The complaint asserts claims under Section 11 and Section 15 of the
Securities Act of 1933, and seeks unspecified monetary relief,
attorneys' fees and other costs, and injunctive relief.
On May 7, 2019, the York County Action was consolidated with In re
PG&E Corporation Securities Litigation.
On May 28, 2019, the plaintiffs in the consolidated securities
actions filed a third amended consolidated class action complaint,
which includes the claims asserted in the previously filed actions
and names as defendants PG&E Corporation, the Utility, certain
current and former officers and directors, and the underwriters.
On August 28, 2019, the Bankruptcy Court denied PG&E Corporation's
and the Utility's request to extend the stay to the claims against
the officer, director, and underwriter defendants.
On October 4, 2019, the officer, director, and underwriter
defendants filed motions to dismiss the third amended complaint,
which motions are currently under submission with the District
Court.
No further updates were provided in the Company's SEC report.
PG&E Corporation, through its subsidiary, Pacific Gas and Electric
Company, engages in the sale and delivery of electricity and
natural gas to residential, commercial, industrial, and
agricultural customers in northern and central California, the
United States. On January 29, 2019, PG&E Corporation Inc. filed a
voluntary petition for reorganization under Chapter 11 in the U.S.
Bankruptcy Court for the Northern District of California.
PILLPACK LLC: Bid to Reconsider Class Status Order Tossed
---------------------------------------------------------
In the class action lawsuit captioned as AARON WILLIAMS, on behalf
of himself and all others similarly situated, v. PILLPACK LLC,
Case No. 3:19-cv-05282-TSZ (W.D. Wash.,), the Hon. Judge Thomas S.
Zilly entered an order that:
1. The Defendant PillPack LLC's Motion for Reconsideration is
denied; and
2. directing the Clerk to send a copy of the Minute Order to
all counsel of records.
The Defendant asks the Court to reconsider its Order granting in
part Plaintiff's Motion for Class Certification. The Motion relies
exclusively on the Declaration of Daniel J. Barsky, to show that
"at least some of the website opt-in forms listed PillPack as a
marketing partner. That declaration, like the other submitted
declarations, nonetheless fails to show that PillPack was listed as
a marketing partner "during the relevant period" -- i.e., "before
the Class members were called." As the Court previously concluded,
Barsky's declaration provides no indication of the dates on which
PillPack was listed on the website opt-in forms. While the
declaration provides a screenshot of a sample opt-in form "during
the Relevant Period," it fails to state whether the sample webpage
listing PillPack as marketing partner was also captured during the
relevant period. Nor is the Court persuaded by the Defendant's
suggestion that Plaintiff emphasized, or somehow conceded, the
evidence on this point. The Plaintiff acknowledged this evidence
only to underscore his argument that the sample webpage provided in
the Barsky declaration "was not used to generate leads for" the
telemarketing campaign involving Class members; moreover, Plaintiff
moved to strike that declaration, in part because it failed to
include supporting data.
Pillpack is a full-service online pharmacy.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3vlYIDp at no extra charge.[CC]
PLUG POWER: Kessler Topaz Reminds Investors of May 7 Deadline
-------------------------------------------------------------
The law firm of Kessler Topaz Meltzer & Check, LLP announces that a
securities fraud class action lawsuit has been filed in the United
States District Court for the Southern District of New York against
Plug Power Inc. (NASDAQ: PLUG) ("Plug") on behalf of those who
purchased or acquired Plug securities between November 9, 2020 and
March 1, 2021, inclusive (the "Class Period").
Investor Deadline Reminder: Investors who purchased or acquired
Plug securities during the Class Period may, no later than May 7,
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/plug-power-class-action-lawsuit?utm_source=PR&utm_medium=link&utm_campaign=Plug_Power
Plug provides comprehensive hydrogen fuel cell turnkey solutions
focused on systems used to power electric motors in the electric
mobility and stationary power markets.
The Class Period commences on November 9, 2020, when Plug filed its
quarterly report on a Form 10-Q for the period ended September 30,
2020. Regarding Plug's disclosure controls and internal control
over financial reporting, the report stated, in relevant part that
Plug's "disclosure controls and procedures are effective . . . .
[and that] [t]here were no changes in [Plug's] internal control
over financial reporting that occurred during the last fiscal
quarter that have materially affected, or are reasonably likely to
materially affect, [Plug's] internal control over financial
reporting."
The truth regarding Plug's weaknesses in its internal control over
financial reporting was revealed on March 2, 2021 when, before the
market opened, Plug filed a Notification of Late Filing with the
U.S. Securities and Exchange Commission stating that it could not
timely file its annual report for the period ended December 31,
2020 because Plug was completing a "review and assessment of the
treatment of certain costs with regards to classification between
Research and Development versus Costs of Goods Sold, the
recoverability of right of use assets associated with certain
leases, and certain internal controls over these and other areas."
Plug stated that "[i]t is possible that one or more of these items
may result in charges or adjustments to current and/or prior period
financial statements."
Following this news, Plug's stock price fell $3.68, or 7%, to close
at $48.78 per share on March 2, 2021. Plug's share price continued
to decline by $9.48, or 19.4%, over three consecutive trading
sessions to close at $39.30 per share on March 5, 2021.
The complaint alleges that, throughout the Class Period, the
defendants failed to disclose to investors that: (1) Plug would be
unable to timely file its 2020 annual report due to delays related
to the review of classification of certain costs and the
recoverability of the right to use assets with certain leases; (2)
Plug was reasonably likely to report material weaknesses in its
internal control over financial reporting; and (3) as a result of
the foregoing, the defendants' positive statements about Plug's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
Plug investors may, no later than May 7, 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)
info@ktmc.com [GN]
PROFESSIONAL DEBT: Kahn et al. Sue Over Unlawful Fees Collection
----------------------------------------------------------------
AIDAN KAHN, MATTHEW GROBMAN, on behalf of themselves and other
similarly situated individuals, Plaintiffs v PROFESSIONAL DEBT
MEDIATION, INC.; QUEENS OFFICE TOWER; MURRAY HILL MARQUIS, LLC;
MARQUIS APARTMENTS, Defendants, Case No. 1:21-cv-01912 (S.D.N.Y.,
March 4, 2021) bring this complaint against the Defendants for
their alleged violations of the Fair Debt Collection Practices
Act.
The Plaintiffs were tenants of apartment unit 2403 in a building
owned by Defendant Murray Hill Marquis.
The Plaintiffs allege that the Defendants illegally demand for and
assessment of fees which were not permitted under the form Lease
and/or relevant law constitute deceptive acts and practices in
violation of Section 349 of New York's General Business Law.
Specifically, the Defendants unlawfully charge the Plaintiffs for
water usage fees and late fees although they time paid for monthly
Rent Payments. In addition, the Defendants breached its Lease
Contract for charging them fees, the Plaintiffs add.
As a result of the Defendants' alleged unlawful practice, the
Plaintiffs have been damaged in that they have paid fees which were
not owed, have incurred expenses associate with attempting to get
the Defendants to drop the challenged charges, and have also
incurred damages as a result of a lower credit score.
Professional Debt Mediation, Inc. is a debt collector. Queens
Office Tower, Murray Hill Marquis, LLC and Marquis Apartments own
and operate apartments for rent business. [BN]
The Plaintiffs are represented by:
Paul Grobman, Esq.
THE LAW OFFICES OF PAUL GROBMAN
555 Fifth Avenue, 17th Floor
New York, NY 10017
Tel: (212) 983-5880
PUP COLLECTION: Monegro Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against The Pup Collection
LLC. The case is styled as Frankie Monegro, on behalf of himself
and all others similarly situated v. The Pup Collection LLC, Case
No. 1:21-cv-02122 (S.D.N.Y., March 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
The Pup Collection creates apparel for dog lovers.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
PURATOS CORP: Sato Action Claims Unpaid Overtime
------------------------------------------------
Diane Sato, on behalf of herself and all others similarly situated,
Plaintiff, v. Puratos Corporation, Defendant, Case No. 21-cv-00173
(E.D. Wis., February 12, 2021), seeks unpaid overtime compensation,
unpaid agreed upon wages, liquidated damages, costs, attorneys'
fees, declaratory and/or injunctive relief and/or any such other
relief pursuant to Wisconsin's Wage Payment and Collection Laws and
the Fair Labor Standards Act of 1938.
Puratos is a food ingredients manufacturer headquartered in
Pennsauken, New Jersey. Sato worked as an hourly-paid, non-exempt
Quality Technician at Puratos' Kenosha, Wisconsin manufacturing
plant from July 2019 to January 2021. Sato also claims to be
uncompensated for pre-shift work like donning safety gear. [BN]
Plaintiffs are represented by:
James A. Walcheske, Esq.
Scott S. Luzi, Esq.
Matthew J. Tobin, Esq.
WALCHESKE & LUZI, LLC
15850 W. Bluemound Rd., Suite 304
Brookfield, WI 53005
Phone: (262) 780-1953
Fax: (262) 565-6469
Email: jwalcheske@walcheskeluzi.com
sluzi@walcheskeluzi.com
mtobin@walcheskeluzi.com
QUEENSLAND: Farmers Raise $1MM to Fund Paradise Dam Class Action
----------------------------------------------------------------
Ben Harden, writing for Queensland Country Life, reports that Wide
Bay farmers and business owners have raised $1 million to fund a
class action against the Queensland Government and Sunwater.
This comes two weeks since the class action over the remediation of
Paradise Dam was ramped up, after revelations farmers in the
Bundaberg region could be facing historically low water allocations
before July.
The troubled Dam has been in the headline since September 2019 when
Sunwater announced they would be releasing 100 000 ML from the Dam,
in order to lower the wall of the dam, due to safety concerns.
An independent review into the root cause of Paradise Dam's
structural and stability issues in May last year found the dam's
primary spillway apron width to be 'completely inadequate'.
The Bundaberg region farming community has engaged with one of the
world's leading dam safety experts, Dr Paul Rizzo, to provide a
second opinion on the future of the dam.
Tom Marland, Marland Law, is leading the class action on behalf of
the farmers.
Mr Marland said after a number of shed meetings held throughout the
region recently, farmers have raised over a million dollars to fund
a class action.
"The support for this class action has been overwhelming actually,"
Mr Marland said.
"I think the recent news from Sunwater that the dam is expected to
be empty by the end of June this year has really galvanised this
farming community into action."
Local farmers have had averages of 85 per cent water allocations
from Paradise Dam in the past, but growers are now fearing that
could drop significantly to 30 per cent.
It is feared Paradise Dam could be empty by the end of July 2021,
unless the catchment receives serious rainfall, sending shock waves
through the local farming community.
Mr Marland said restoring the dam is paramount to the Wide Bay
community.
"After endless delays from the State Government and no news on the
horizon about the dam's future, farmers really see no other choice
but to take the State Government to court for losses and damages
associated with their decision to lower Paradise Dam," he said.
"Based on the losses we're measuring, we expect this class action
to be in the Billions.
"At the end of the day, farmers don't want a cheque from the
government, they want water"
The Queensland Government and Sunwater would not comment on any
potential legal proceedings.
Marland Law is aiming to have documents filed by the end of May and
will be seeking the first court hearings in June 2021. [GN]
RAYMOND JAMES: July 20 Extension to File Class Status Bid Sought
----------------------------------------------------------------
In the class action lawsuit captioned as KIMBERLY NGUYEN, On Behalf
of Herself and All Others Similarly Situated, v. RAYMOND JAMES &
ASSOCIATES, INC., Case No. 8:20-cv-00195-CEH-AAS (M.D. Fla.), the
Plaintiff asks the Court to enter an order extending the deadline
for her to file her motion for class certification by 90 days to
July 20, 2021.
The Plaintiff filed an amended complaint on May 20, 2020. The Court
scheduled a hearing on RJA's motion to dismiss on March 5, 2021.
Discovery did not commence until after Your Honor was assigned to
this case and held a hearing on July 23, 2021. As a result, the
Court extended the class certification deadline on three occasions.
Since discovery began on July 23, 2020, the parties have been
working diligently to conduct discovery necessary to meet the
current April 21, 2021 class certification deadline.
Raymond James is a management services company.
A copy of the Plaintiff's motion dated March 2, 2020 is available
from PacerMonitor.com at https://bit.ly/3rMsJtP at no extra
charge.[CC]
The Counsel for the Plaintiff, are:
Steven A. Schwartz, Esq.
Zachary P. Beatty, Esq.
CHIMICLES SCHWARTZ KRINER
& DONALDSON-SMITH LLP
361 W. Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
E-mail: sas@chimicles.com
zpb@chimicles.com
- and -
Steven W. Teppler, Esq.
MANDELBAUM SALSBURG
11891 U.S. Highway One, Suite 100
North Palm Beach, FL 33408
Telephone: 561-328-4617
Facsimile: 561-214-4130
E-mail: steppler@lawfirm.ms
- and -
Franklin D. Azar, Esq.
Margeaux Azar, Esq.
Paul R. Wood, Esq.
Michael Murphy, Esq.
Jordan Coley, Esq.
FRANKLIN D. AZAR &
ASSOCIATES, P.C.
14426 East Evans Ave
Aurora, CO 80014
Telephone: (303) 757-3300
Facsimile: (720) 213-5131
E-mail: azarf@fdazar.com
azarm@fdazar.com
woodp@fdazar.com
murphym@fdazar.com
coleyj@fdazar.com
RECEIVABLES MANAGEMENT: Dyer Settlement Class Wins Certification
----------------------------------------------------------------
In the class action lawsuit captioned as TIFFANY DYER, individually
and on behalf of all others similarly situated, v. RECEIVABLES
MANAGEMENT SYSTEMS, Case No. 1:20-cv-00299-ELH D (D. Md.), the Hon.
Judge Ellen L. Hollander entered an order:
1. certifying the Settlement Class defined as:
"All Maryland consumers who were sent collection letters
and/or notices from the Defendant, during the period of
February 04, 2019 to present, attempting to collect a
consumer debt owed to or allegedly owed to Patient First,
which included a S40.00 collection fee, when no such fee
was expressly authorized by the agreement creating the
debt;"
2. defining the "Class Claims" as those claims arising from
RMS's collection letters, wherein RMS sent consumers
written collection communications which attempted to
collect a fee not authorized by the agreement creating the
debt or permitted by law;
3. appointing the Plaintiff as the Class Representative; and
4. appointing the Plaintiff's counsel, Ari Marcus and
Yitzchak Zelman, as Class Counsel.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at https://bit.ly/2NhnbbS at no extra charge.[CC]
RENO, NE: April 14 Response Time to Class Certification Bid OK'd
----------------------------------------------------------------
In the class action lawsuit captioned as CATHERINE CASTELLANOS,
LAUREN COURTNEY, RACHEL JASPER, BRIANNA MORALES, VICTORIA RACHET,
LILY STAGNER, NATALEE WELLS, CECELIA WHITTLE, and MARYANN ROSE
BROOKS, on behalf of themselves and all other similarly situated,
v. CITY OF RENO and MICHAEL CHAUMP, in his official capacity as
Business Relations Manager of Community Development and Business
Licenses for the CITY OF RENO and DOES 1 through 10, inclusive,
Case No. 3:19-cv-00693-MMD-CLB (D. Nev.), the Court entered an
order granting the Parties stipulation to extend the due date for
the Defendants to file a responsive pleading to the Plaintiffs'
Motion for Class Certification Pursuant to Rule 23 of the Federal
Rules of Civil Procedure from March 24, 2021 to April 14, 2021.
Reno is a city in the northwest section of the U.S. state of
Nevada, along the Nevada-California border.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3bMcyY5 at no extra charge.[CC]
The Plaintiffs are represented by:
Mark R. Thierman, Esq.
Joshua D. Buck, Esq.
Leah L. Jones, Esq.
THIERMAN BUCK, LLP KARL HALL
Reno City Attorney
7287 Lakeside Drive
Reno, NE 89511
The Attorneys for the Defendants City of Reno and Michael Chaump,
are:
Karl S. Hall, Esq.
Reno City Attorney
Willia J. McKean, Esq.
Deputy City Attorney
Chandeni K. Sendall, Esq.
Deputy City Attorney
Nevada State Bar No. 12750
Post Office Box 1900
Reno, NE 89505
Telephone: (775) 334-2050
RETAIL GROUP: Court Denies Bid to Certify Class for Limited Purpose
-------------------------------------------------------------------
In the case, In re: RETAIL GROUP, INC., et al., Chapter 11,
Debtors, Case No. 20-33113-KRH, Jointly Administered (E.D. Va.),
Judge Kevin R. Huennekens of the U.S. Bankruptcy Court for the
Eastern District of Virginia, Richmond Division, denied the
Securities Lead Plaintiffs' Motion for Entry of an Order (I)
Authorizing Lead Plaintiffs to Opt Out of Third-Party Releases on
Behalf of the Class or, in the Alternative, (II) Certifying the
Class for a Limited Purpose Pursuant to Fed. R. Bankr. P. 7023 and
9014 and Fed. R. Civ. P. 23 filed by Joel Patterson and Michaella
Corp.
In June 2019, the Movants, on behalf of themselves and a proposed
class of persons who purchased or otherwise acquired Retail Group,
formerly known as Ascena Retail Group, Inc., common stock between
Dec. 1, 2015 and May 17, 2017, filed a class action lawsuit
alleging violations of federal securities law against Ascena and
two of its former officers and directors (the latter, the
"Non-Debtor Defendants") in the U.S. District Court for the
District of New Jersey. The District Court appointed the Movants
as the lead plaintiffs in the Securities Litigation but has not
certified a class for any purpose.
More than a year following the commencement of the Securities
Litigation, on July 23, 2020, the Debtors each filed voluntary
petitions under Chapter 11 of Title 11 of the United States Code
with the Court, thereby commencing the Bankruptcy Cases. As a
result of the commencement of these Bankruptcy Cases, the
Securities Litigation was stayed as to Ascena pursuant to section
362 of the Bankruptcy Code.
The Debtors commenced these Bankruptcy Cases to facilitate a
value-maximizing restructuring transaction for the benefit of all
stakeholders. Prior the Petition Date, the Debtors entered into a
Restructuring Support Agreement ("RSA") supported by 68% of their
prepetition secured term lenders, which initially contemplated a
balance sheet restructuring. However, in exercising flexibility
afforded by the RSA, after the Petition Date, the Debtors engaged
in a marketing process to determine whether a sale transaction of
all or a portion of the Debtors' business would result in a higher
and better value for the benefit of the bankruptcy estate. To that
end, the Debtors, with the Court's approval, consummated three sale
transactions pursuant to section 363 of the Bankruptcy Code. By
the time that the Debtors closed on the third and final transaction
on Dec. 23, 2020, they had effectively sold substantially all of
their assets. These sale transactions were supported by nearly all
Term Lenders and the Creditors' Committee.
The Debtors executed an amended and restated RSA with approximately
97.25% of the Term Lenders, all of whom strongly supported
confirmation of the proposed revised Plan designed to effect
distribution of the sales proceeds. In addition, they were able to
negotiate a global settlement with the Creditors' Committee, the
terms of which are reflected in the Plan. As a result, the
Creditors' Committee also endorsed confirmation of the Plan. The
Plan includes, among other provisions, the voluntary Third-Party
Releases, described as a "Release by holders of Claims or
Interests."
The "Releasing Party" is defined to include, but is not limited to,
all holders of interests who do not timely opt out of or object to
the Third-Party Releases. The "Released Party" includes, but is
not limited to, Ascena and the current and former officers and
directors of Ascena, such that it would include the Non-Debtor
Defendants. Thus, in the absence of an objection or timely
affirmative opt-out, the Third-Party Releases would apply to any
claims of equity holders against Ascena and the Non-Debtor
Defendants.
Prior to the Debtors' solicitation of votes on the Plan, the Court
entered an Order on Sept. 11, 2020, approving the Disclosure
Statement for the Amended Joint Chapter 11 Plan of Reorganization
of Ascena Retail Group, Inc. and Its Debtor Affiliates in
accordance with section 1125 of the Bankruptcy Code. The holders
of equity interests in Ascena were deemed to reject the Plan and,
as such, were not entitled to vote on the Plan.
Nevertheless, in order to ensure that the Disclosure Statement
provided adequate information as far as reasonably practicable to
enable the Debtors' equity holders to make an informed judgment
about the process for opting out of the Third-Party Releases, the
Court required that a Notice of Non-Voting Status to Holders of
Interests Deemed to Reject the Plan and of Third-Party Release
under the Plan be sent to both current and former shareholders of
Ascena, accompanied by an opt-out form.
In total, as of Oct. 15, 2020, at least 200 current and former
shareholders of Ascena opted out of the Third-Party Releases. A
month later, by Nov. 18, 2020, approximately 596 Release Opt-Out
Forms had been received, the majority of which were submitted by
purported current and former equity holders.
The matter comes before the Court upon the Movant's Motion. Ascena
and its affiliated debtors objected to the Motion. The Motion asks
the Court to authorize the Movants to untimely opt out of
Third-Party Releases provided in the confirmed Plan on behalf of
all members of a putative class in connection with a class action
lawsuit brought by the Movants or, in the alternative, to certify a
class for the limited purpose of allowing the Movants to untimely
effect an opt out of the Third-Party Releases on behalf of all
class members.
On Feb. 25, 2021, the Court conducted a hearing on the Motion,
wherein the Court heard oral argument from the Movants and the
Debtors.
First, the Movants allege that they have the "inherent authority"
to opt out of the Third-Party Releases on behalf of the putative
class members, based upon their appointment as lead plaintiffs by
the District Court and the Movants' fiduciary obligations to the
putative class members arising from such appointment.
Judge Huennekens opines that the Movants' appointment as lead
plaintiffs by the District Court in the Securities Litigation is
not determinative of whether the Movants may represent the
interests of the putative class before the Court. The order
appointing the Movants as lead plaintiffs in the Securities
Litigation does not provide any authorization for them in
connection with these Bankruptcy Cases, and the Movants' fiduciary
duties to the putative class members in the Securities Litigation
do not confer upon the Movants any status for these Bankruptcy
Cases. For these reasons, the Judge finds that the Movants have no
inherent authority to opt out of the Third-Party Releases on behalf
of the putative class.
The Movants next argue that the Court should certify a class under
Rule 23 of the Federal Rules of Civil Procedure for the "limited
purpose" of opting out of the Third-Party Releases on behalf of the
putative class. They argue both that Civil Rule 23 applies to this
proceeding and that its requirements are satisfied.
The Judge declines to apply Bankruptcy Rule 7023 to certify a
class. He holds that the Movants have presented no evidence to the
Court that class certification would be superior to the process
that has already been approved and implemented in these Bankruptcy
Cases for notifying and allowing the putative class members to opt
out of the Third-Party Releases on their own behalf. Although the
Movants assert that "a class may be certified" in this
circumstance, they give no explanation for why the Court should
apply Bankruptcy Rule 7023 in the first place. Instead, the
Movants rely solely upon conclusory assertions with no evidentiary
support that the requirements for certifying a class under Civil
Rule 23 are satisfied. As the Judge has noted, this argument
ignores the crucial first step in the analysis. The requirements
for class certification under Civil Rule 23 do not become an issue
until the Court determines that Bankruptcy Rule 7023 should apply
to the matter at bar.
For the foregoing reasons, Judge Huennekens denied the Motion. An
appropriate Order will be issued.
A full-text copy of the Court's March 5, 2021 Memorandum Opinion is
available at https://tinyurl.com/udmtejzz from Leagle.com.
ROCHESTER CITY SCHOOL: RTA Files Class Action Grievance
-------------------------------------------------------
WHEC reports that the Rochester Teachers Association announced on
March 1 it filed a class-action grievance against the Rochester
City School District.
In a Tweet directed at Superintendent Dr. Lesli Myers-Small, the
RTA account said the grievance was filed due to "repercussions" for
speaking out against the district's reopening plan.
A January survey by the RTA showed that 89% of teachers and many
parents say they did not have any confidence that the District was
ready for in-person classes. Myers-Small defended the reopening,
saying the district has followed all protocols to keep students and
staff safe.
RTA President Adam Urbanski also previously asked the district to
delay its reopening.
RTA has filed a class action grievance against any repercussions
for speaking out about the @RCSDNYS reopening plan. If you still
would like to remain anonymous go to the RTA website & use
#RCSDAnswerMe. We will tweet it from our RTA account. @LCMLessons
- Rochester Teachers Association (@RochesterTA) March 1, 2021
The Tweet went on to encourage users who had complaints to do so
anonymously. [GN]
ROMAN CATHOLIC ARCHDIOCESE: Faces Suit Over Alleged Sexual Abuse
-----------------------------------------------------------------
The Chronicle Herald reports that a class action by dozens of Nova
Scotians who say they were sexually abused by Roman Catholic
priests dating back to 1960 "is proceeding," says the lawyer
representing the plaintiffs.
"The court is going to advise us about potential trial dates," said
John McKiggan of McKiggan-Hebert law firm in Halifax, which filed
the class action with the Nova Scotia Supreme Court in August
2018.
The class action was filed on behalf of Douglas Champagne and other
sexual abuse survivors.
Champagne, according to the court filing, suffered lasting and
permanent effects from sexual abuse at the hands of Father George
Epoch while Epoch worked as a priest at the Canadian Martyrs Church
in Halifax.
The class action says priests employed by the Halifax-Yarmouth
archdiocese, which amalgamated the former dioceses of Halifax and
Yarmouth in 2011, had for decades "sexually assaulted and battered
Catholic worshippers who attended their parishes."
Responsible for the spiritual guidance and care of the claimants,
the lawsuit says priests developed a relationship of psychological
intimacy with their victims that provided them the opportunity to
"engage in acts of sexual assault and battery."
Several of the abusive priests were criminally convicted but many
others were sent off to a church-run treatment facility in Ontario
and then placed back in archdiocesan parishes with no warning or
notice to parishioners of the priests' past actions, the class
action claims.
The archdiocese or previous dioceses had sole authority to
"appoint, train, supervise, reprimand and dismiss priests" but by
failing to do so was negligent and in breach of a fiduciary duty to
the victims of the alleged abuse, the class action maintains.
McKiggan said recently there are two steps to a class action. The
first is to have the court decide if the plaintiffs can sue as a
group. A certification court date to decide that had been set for
January but McKiggan said the group and the archdiocese were able
to reach an agreement and the class action has been certified.
"The next step is the common issues trial," McKiggan said. "If the
matter cannot be settled by negotiation and agreement then there
has to be a trial and a judge gets to decide on the certified
common issues."
McKiggan said that a common issues trial date has yet to be set.
McKiggan said the issues that have been certified as being common
to all class group members are whether the archdiocese was
negligent and whether the archdiocese owed a fiduciary duty to the
plaintiffs..
"What the court will decide at the common issues trial is if the
archdiocese was negligent and/or whether the archdiocese owed a
fiduciary duty to the class members."
McKiggan said the claim can be settled at any time up to trial if
the parties are able to reach an agreement.
"You'd have to ask the archdiocese," McKiggan said when asked about
the likelihood of an agreement before trial.
A spokeswoman for the archdiocese said they "have no comment on the
class action, as it is in process."
McKiggan said the archdiocese has not conceded it was negligent.
He said the class action involves "everybody who was abused by a
priest," unless they opt out individually.
"There is no way to know for certain how many people were abused by
priests, probably the party that knows best is the archdiocese
because they are the ones that received the complaints and sent the
priests for treatment when they were caught."
McKiggan said there is no way to determine what the financial
damages to the archdiocese could be if it concedes or is found to
have been negligent and in breach of its fiduciary duties.
"It depends on how many potential claimants are out there and what
happened to each person, because the value of each person's claim
is dependent on the circumstances of what happened to them and how
it affected their life," McKiggan said.
"The potential financial exposure isn't something we can put a
precise dollar value on right now."
McKiggan said it would be reasonable to expect a settlement would
exceed the $16-million compensation settlement reached in 2009
between neighbouring Antigonish diocese and more than 140
complainants in a sex abuse class action against diocesan priests.
[GN]
SEALED AIR: Bid to Nix UA Local 13 Securities Class Suit Pending
----------------------------------------------------------------
Sealed Air Corporation said in its Form 10-K report filed with the
U.S. Securities and Exchange Commission on February 25, 2021, for
the fiscal year ended December 31, 2020, that the company's motion
to dismiss filed in the putative class action suit initiated by UA
Local 13 & Employers Group Insurance Fund, remains pending.
On November 1, 2019, purported Company stockholder UA Local 13 &
Employers Group Insurance Fund filed a putative class action
complaint in the United States District Court for the Southern
District of New York against the Company and certain of its current
and former officers.
On June 4, 2020, the complaint was amended to remove all individual
defendants other than the Company's former CFO and to add a
plaintiff, and on July 13, 2020, the complaint was further amended
to identify a total of four plaintiffs.
The complaint alleges violations of Sections 10(b) and 20(a) of the
Exchange Act and Rule 10b-5 thereunder based on allegedly false and
misleading statements and omissions concerning the Company's hiring
of Ernst & Young LLP as its independent auditors and concerning the
Company's corporate policies and procedures. The plaintiffs seek to
represent a class of purchasers of the Company's common stock
between November 17, 2014 and June 20, 2019.
The complaint seeks, among other things, unspecified compensatory
damages, including interest, and attorneys' fees and costs.
On September 4, 2020, the Company filed a motion to dismiss the
complaint, and after briefing the motion, will await a decision by
the court.
Sealed Air Corporation provides food safety and security, and
product protection solutions worldwide. It was founded in 1960 and
is headquartered in Charlotte, North Carolina.
SEGWAY INC: Quezada Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Segway Inc. The case
is styled as Jose Quezada, on behalf of himself and all others
similarly situated v. Segway Inc., Case No. 1:21-cv-02142
(S.D.N.Y., March 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Segway Inc. -- https://www.segway.com/ -- is an American
manufacturer of two-wheeled personal transporters, chiefly through
its Segway PT and Segway miniPro product lines.[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
SEMPRA ENERGY: Appeal on Securities Suit Dismissal Still Pending
----------------------------------------------------------------
Sempra Energy said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2021, for the
fiscal year ended December 31, 2020, that plaintiffs' appeal from a
court order dismissing a federal securities class action suit
remains pending.
A federal securities class action alleging violation of the federal
securities laws was filed against Sempra Energy and certain of its
officers in July 2017 in the U.S. District Court for the Southern
District of California.
In March 2018, the court dismissed the action with prejudice.
The plaintiffs have appealed the dismissal.
No further updates were provided in the Company's SEC report.
Sempra Energy, together with its subsidiaries, invests in,
develops, and operates energy infrastructure, as well as provides
electric and gas services in the United States and internationally.
The company was founded in 1998 and is headquartered in San Diego,
California.
SEMPRA ENERGY: Continues to Defend Property & Business Class Suits
-------------------------------------------------------------------
Sempra Energy said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2021, for the
fiscal year ended December 31, 2020, that the company and Southern
California Gas Company (SoCalGas) continue to defend two
consolidated class action suits in California.
In January 2017, two consolidated class action complaints were
filed against SoCalGas and Sempra Energy, one on behalf of a
putative class of persons and businesses who own or lease real
property within a five-mile radius of the well (the Property Class
Action), and a second on behalf of a putative class of all persons
and entities conducting business within five miles of the facility
(the Business Class Action).
The Property Class Action asserts claims for strict liability for
ultra-hazardous activities, negligence, negligence per se,
violation of the California Unfair Competition Law, trespass,
permanent and continuing public and private nuisance, and inverse
condemnation.
The Business Class Action asserts a claim for violation of the
California Unfair Competition Law. Both complaints seek
compensatory, statutory and punitive damages, injunctive relief and
attorneys' fees.
Sempra Energy, together with its subsidiaries, invests in,
develops, and operates energy infrastructure, as well as provides
electric and gas services in the United States and internationally.
The company was founded in 1998 and is headquartered in San Diego,
California.
SEMPRA ENERGY: June Trial in Aliso Canyon Leak Suit Postponed
-------------------------------------------------------------
Sempra Energy said in its Form 10-K report filed with the U.S.
Securities and Exchange Commission on February 25, 2021, for the
fiscal year ended December 31, 2020, that the initial trial
previously scheduled for June 2020 for a small number of randomly
selected individual plaintiffs has been postponed, with a new trial
date to be determined by the court.
On October 23, 2015, Southern California Gas Company (SoCalGas)
discovered a leak at one of its injection-and-withdrawal wells,
SS25, at its Aliso Canyon natural gas storage facility, located in
the northern part of the San Fernando Valley in Los Angeles
County.
The Aliso Canyon natural gas storage facility has been operated by
SoCalGas since 1972. SS25 is one of more than 100
injection-and-withdrawal wells at the storage facility.
SoCalGas worked closely with several of the world's leading experts
to stop the Leak, and on February 18, 2016, the California
Department of Conservation's Division of Oil, Gas, and Geothermal
Resources (DOGGR) confirmed that the well was permanently sealed.
SoCalGas calculated that approximately 4.62 Bcf of natural gas was
released from the Aliso Canyon natural gas storage facility as a
result of the Leak.
As of February 22, 2021, 395 lawsuits, including approximately
36,000 plaintiffs, are pending against SoCalGas related to the
Leak, some of which have also named Sempra Energy.
All these cases, other than a matter brought by the Los Angeles
County District Attorney and the federal securities class action,
are coordinated before a single court in the LA Superior Court for
pretrial management.
In November 2017, in the coordinated proceeding, individuals and
business entities filed a Third Amended Consolidated Master Case
Complaint for Individual Actions, through which their separate
lawsuits will be managed for pretrial purposes. The consolidated
complaint asserts causes of action for negligence, negligence per
se, private and public nuisance (continuing and permanent),
trespass, inverse condemnation, strict liability, negligent and
intentional infliction of emotional distress, fraudulent
concealment, loss of consortium, wrongful death and violations of
Proposition 65 against SoCalGas and Sempra Energy.
The consolidated complaint seeks compensatory and punitive damages
for personal injuries, lost wages and/or lost profits, property
damage and diminution in property value, injunctive relief, costs
of future medical monitoring, civil penalties (including penalties
associated with Proposition 65 claims alleging violation of
requirements for warning about certain chemical exposures), and
attorneys' fees.
The initial trial previously scheduled for June 2020 for a small
number of randomly selected individual plaintiffs was postponed,
with a new trial date yet to be determined by the court.
No further updates were provided in the Company's SEC report.
Sempra Energy, together with its subsidiaries, invests in,
develops, and operates energy infrastructure, as well as provides
electric and gas services in the United States and internationally.
The company was founded in 1998 and is headquartered in San Diego,
California.
SONY COMPUTER: Law Firm Offers Arbitration Opt-Out Letter in Suit
-----------------------------------------------------------------
Tom Ivan, writing for VGC, reports that the firm behind a
PlayStation 5 controller drift lawsuit is employing a new tactic in
its bid to ensure the case is settled in a courtroom rather than
through arbitration.
The class-action lawsuit, which was filed in February 2021, alleges
that PS5 DualSense controllers "contain a defect that results in
characters or gameplay moving on the screen without user command or
manual operation of the joystick".
In the US, the terms of PS5's software license agreement -- which
users must agree to in order to play games on the console --
include an arbitration clause which, if enforced, means consumers
may be unable to pursue claims in a traditional court or on a
class-wide basis.
However, PS5 owners can opt-out of resolving disputes through
arbitration by sending a letter to Sony within 30 days of first
booting up their console.
To help them do so, law firm Chimicles Schwartz Kriner &
Donaldson-Smith (CSK&D) has prepared a template letter for
class-action members to fill out, which it is offering to send to
Sony on their behalf.
CSK&D previously filed a similar class-action lawsuit against
Nintendo, alleging that the company is aware of a defect which
causes Switch Joy-Con controllers to drift. That case was compelled
to arbitration, a situation the firm is hoping to avoid a repeat of
with the DualSense lawsuit.
Discussing the move to offer consumers an arbitration opt-out
letter, CSK&D partner Benjamin F. Johns told IGN: "The only comment
I can offer on this issue is that this procedure has been used
successfully in other contexts which we think are analogous here."
The PS5 drift lawsuit accuses Sony of "unfair, deceptive, and/or
fraudulent" business practices resulting in unjust enrichment. The
action was brought against the company by Virginia-based plaintiff
Lmarc Turner, who is seeking monetary relief for damages suffered,
declaratory relief and public injunctive relief.
A teardown video published in February investigates why joystick
drift occurs in controllers including DualSense and suggests that
PS5's analog sticks have an operating life of around 417 hours.
This means that if a PS5 player used their console for two hours a
day, they would technically exceed their controller's operation
life expectancy within seven months.
According to the video by popular tech channel iFixIt, DualSense
uses the same off-the-shelf joystick hardware as many other
platforms' controllers, including PS4, Xbox One, Switch and more.
Microsoft is also facing a class-action lawsuit which alleges that
a product defect causes Xbox controllers to drift. The platform
holder recently issued fresh statements calling for the case to be
taken out of the courtroom by compelling arbitration, which would
see disputes resolved by an impartial adjudicator. [GN]
SUNNYCREST NURSING: Faces Lawsuit Over COVID-19 Safety Measures
----------------------------------------------------------------
Bryan Passifiume at Toronto Sun reports that the family of a woman
who died in a Whitby nursing home in January is the representative
plaintiff in a $30 million class-action lawsuit.
Filed in February in Ontario Superior Court, the statement of claim
against Sunnycrest Nursing Home on Dundas St. E. is asking for $20
million in compensatory damages and an additional $10 million in
punitive - plus court costs.
Edelvena Smelova, 87, whose family is the claim's representative
plaintiffs, died Jan. 7 due to complications from COVID-19 and
severe dehydration, the claim states.
Born in Moscow in 1934, Smelova survived the horrors of the Second
World War before becoming a renowned music educator and emigrating
to Canada in 1996 where she continued her work as a music teacher.
"We are heartbroken knowing that our mother and grandmother spent
her last two months alone, without seeing us or feeling our love,"
said daughter Julia Ratnayake.
Lead counsel Gary Will of Will Davidson LLP said over half of
Ontario's long-term care homes suffered no deaths during the
pandemic's second wave and most fatalities occurred at only a
handful of homes.
"The gross negligence of Sunnycrest Nursing Home is reflected in
the fact that they allowed a significant outbreak of COVID-19 on
November 23, 2020," Will said. "It is simply inexcusable that
Sunnycrest was not better prepared to protect vulnerable residents
more than 9 months into the pandemic."
That outbreak, which lasted until Jan. 1 2021, resulted in 177
resident and 78 staff COVID-19 infections, and 34 deaths.
In November, a provincial inspection report of Sunnycrest concluded
the home had "failed to demonstrate that it was providing a safe
and secure environment for its residents during the course of its
outbreak," prompting the province to order Lakeridge Health to
provide direct hospital support through a voluntary management
agreement.
The inspection found the care home was not screening people
entering or exiting the facility, there was a lack of PPE for
staff, and the facility was being manned by less than 50% of its
regular staff resulting in delays of care and medication for
residents.
Inquiries to Sunnycrest for comment and if a statement of defence
was filed weren't returned by press time. [GN]
TOWERS WATSON: May 25 Settlement Fairness Hearing Set
-----------------------------------------------------
If you owned common stock of Towers Watson & Co. ("Towers") on
January 4, 2016, the date that the merger transaction between
Towers and Willis Group Holdings plc ("Willis") closed, you could
get a payment from proposed class action settlements
TO:
(a) All persons and entities that were Towers shareholders,
including shareholders of record and beneficial owners, as of both
October 1, 2015, the record date for Towers shareholders to be
eligible to vote on the merger of Towers and Willis, and January 4,
2016, the date the merger transaction between Towers and Willis
closed, and who were allegedly damaged thereby (the "Federal
Class"); and
(b) All persons and entities that were Towers shareholders,
including shareholders of record and beneficial owners, at any time
during the period from June 29, 2015 through and including January
4, 2016, together with their successors and assigns (the "Delaware
Class").
PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS WILL BE AFFECTED BY
PENDING CLASS ACTION LAWSUITS.
YOU ARE HEREBY NOTIFIED that:
* the action entitled In re Willis Towers Watson plc Proxy
Litigation, Master File No. 1:17-cv-1338-AJT-JFA (the "Federal
Action"), pending in the United States District Court for the
Eastern District of Virginia (the "Federal Court"), has been
certified as a class action on behalf of the Federal Class,
pursuant to Rule 23 of the Federal Rules of Civil Procedure and an
Order of the Federal Court;
* the action entitled In re Towers Watson & Co. Stockholder
Litigation, Consolidated C.A. No. 2018-0132-KSJM (the "Delaware
Action"), pending in the Delaware Court of Chancery (the "Delaware
Court" and, together with the Federal Court, the "Courts"), has
been conditionally certified as a class action, for the purposes of
settlement only, on behalf of the Delaware Class, pursuant to Rule
23 of the Rules of the Court of Chancery of the State of Delaware
and an Order of the Delaware Court; and
* the parties to the Federal Action and Delaware Action
(together, the "Actions") have reached proposed Settlements1 for
the benefit of the Federal Class and Delaware Class (collectively,
the "Classes") totaling $90,000,000 in cash. Specifically, (i)
Federal Lead Plaintiff The Regents of the University of California,
on behalf of itself and the Federal Class, has reached a proposed
settlement of the Federal Action for $75,000,000 in cash (the
"Federal Settlement"); and (ii) Delaware Lead Plaintiffs City of
Fort Myers General Employees' Pension Fund and Alaska
Laborers-Employers Retirement Trust, on behalf of themselves and
the Delaware Class, have reached a proposed settlement of the
Delaware Action for $15,000,000 in cash (the "Delaware Settlement"
and, together with the Federal Settlement, the "Settlements").
These proposed Settlements will be considered independently by the
respective Courts but will not become effective unless and until
both Settlements have been approved and become final.
If you are a member of the Federal Class and/or the Delaware Class,
your rights will be affected by the proposed Settlement(s) that
apply to you and any orders or judgments related to those
Settlements, and you may be entitled to share in the Federal and/or
Delaware Settlement Funds. If you have not yet received the full
printed Notice and Claim Form, you may obtain copies of these
documents by contacting the Claims Administrator at Willis Towers
Watson Shareholder Litigation, c/o A.B. Data, Ltd., P.O. Box
173111, Milwaukee, WI 53217, by toll-free phone at 1-800-983-6133,
or by email at info@WillisTowersWatsonShareholderLitigation.com.
Copies of the Notice and Claim Form can also be downloaded from the
website maintained by the Claims Administrator,
www.WillisTowersWatsonShareholderLitigation.com. The Notice
provides additional information about the Settlements and the
Classes.
The Federal Court will hold a hearing on May 21, 2021 at 1:00 p.m.
Eastern time, before the Honorable Anthony J. Trenga, either in
person at the United States District Court for the Eastern District
of Virginia, Courtroom 701 of the Albert V. Bryan U.S. Courthouse,
401 Courthouse Square, Alexandria, VA 22314, or by telephone or
videoconference (in the discretion of the Federal Court) to
determine: (i) whether the proposed Federal Settlement should be
approved as fair, reasonable, and adequate; (ii) whether the
proposed Plan of Allocation for the proceeds of the Federal
Settlement is fair and reasonable and should be approved; and (iii)
whether Federal Class Counsel's application for an award of
attorneys' fees and reimbursement of litigation expenses should be
approved.
The Delaware Court will hold a hearing on May 25, 2021 at 1:30 p.m.
Eastern time, before the Honorable Kathaleen McCormick, either in
person at the Court of Chancery, New Castle County, Leonard L.
Williams Justice Center, 500 North King Street, Wilmington, DE
19801, or by telephone or videoconference (in the discretion of the
Delaware Court) to determine: (i) whether to finally certify the
Delaware Class for settlement purposes only; (ii) whether the
proposed Delaware Settlement should be approved as fair,
reasonable, and adequate; (iii) whether the proposed Plan of
Allocation for the proceeds of the Delaware Settlement is fair and
reasonable and should be approved; and (iv) whether Delaware Class
Counsel's application for an award of attorneys' fees and
reimbursement of litigation expenses should be approved.
If you are a member of one or both Classes, in order to be eligible
to receive a payment under the proposed Settlement(s) that applies
(apply) to you, you must submit a Claim Form postmarked no later
than May 25, 2021. You only need to submit one Claim Form to be
eligible for both Settlements. If you do not submit a proper Claim
Form, you will not be eligible to share in the distribution of the
net proceeds of the Settlement(s), but you will nevertheless be
bound by any judgments or orders entered in the Actions related to
the Settlement(s) that applies (apply) to you.
If you are a member of the Federal Class and wish to exclude
yourself from the Federal Class, you must submit a written request
for exclusion such that it is received no later than April 15,
2021, in accordance with the instructions set forth in the Notice.
If you are a member of the Federal Class and properly exclude
yourself, you will not be bound by any judgments or orders entered
by the Federal Court in the Federal Action, and you will not be
eligible to share in the proceeds of the Federal Settlement. The
Delaware Class is conditionally certified as a non-opt-out class.
You do not have the opportunity to exclude yourself from the
Delaware Class.
Any objections to the proposed Settlements, the proposed Plan of
Allocation for each Settlement, or counsel's motions for attorneys'
fees and litigation expenses with respect to each Settlement must
be filed with the relevant Court and delivered to representatives
of the relevant parties, as provided in the Notice. Any objections
to the Federal Settlement and matters related to the Federal
Settlement must be received no later than April 15, 2021, in
accordance with the instructions set forth in the Notice. Any
objections to the Delaware Settlement and matters related to the
Delaware Settlement must be received no later than May 11, 2021, in
accordance with the instructions set forth in the Notice.
Please do not contact the Courts, Defendants, or Defendants'
counsel regarding this notice. All questions about this notice, the
proposed Settlements, or your eligibility to participate in the
Settlements should be directed to the Claims Administrator or Class
Counsel, listed below.
Requests for the Notice and Claim Form should be made to:
Willis Towers Watson Shareholder Litigation
c/o A.B. Data, Ltd.
P.O. Box 173111
Milwaukee, WI 53217
1-800-983-6133
info@WillisTowersWatsonShareholderLitigation.com
www.WillisTowersWatsonShareholderLitigation.com
Inquiries, other than requests for the Notice and Claim Form,
should be made to Class Counsel:
Federal Class Counsel
Salvatore J. Graziano, Esq.
BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP
1251 Avenue of the Americas, 44th Floor
New York, NY 10020
1-800-380-8496
settlements@blbglaw.com
Delaware Class Counsel
Stacey A. Greenspan, Esq.
KESSLER TOPAZ MELTZER
& CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
1-610-667-7706
info@ktmc.com
Christine Mackintosh, Esq.
GRANT & EISENHOFER P.A.
123 Justison Street, 7th Floor
Wilmington, DE 19801
1-302-622-7081
cmackintosh@gelaw.com
Dated: March 1, 2021
By Order of the Courts
1 Capitalized terms not defined herein have the meaning ascribed in
the (i) Notice of (I) Pendency of Class Actions and Proposed
Settlements; (II) Settlement Fairness Hearings; and (III) Motions
for Attorneys' Fees and Litigation Expenses (the "Notice") and/or
(ii) Federal Stipulation and Agreement of Settlement for the
Federal Settlement and/or Delaware Stipulation and Agreement of
Settlement for the Delaware Settlement, which are available as set
forth in the Notice. [GN]
TOYOTA MOTOR: Rhoads-Reed Files FCRA Suit in Delaware
-----------------------------------------------------
A class action lawsuit has been filed against Toyota Motor Sales,
U.S.A. Inc. The case is styled as Chanel Rhoads-Reed, individually
and on behalf of all other similarly situated v. Toyota Motor
Sales, U.S.A. Inc. doing business as: Koons Lexus of Wilmington,
Case No. 1:21-cv-00359-UNA (D. Del., March 11, 2021).
The lawsuit is brought over alleged violation of the Fair Credit
Reporting Act.
Toyota Motor Sales, U.S.A., Inc. -- https://www.toyota.com/usa/ --
retails and sells new and used automotive.[BN]
The Plaintiff is represented by:
Antranig N. Garibian, Esq.
GARIBIAN LAW OFFICES, P.C.
1010 Bancroft Parkway, Suite 22
Wilmington, DE 19805
Phone: (215) 326-9179
Email: ag@garibianlaw.com
TRIBUNE PUBLISHING: April 15 Settlement Fairness Hearing Set
------------------------------------------------------------
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
VLADIMIR GUSINSKY
REVOCABLE TRUST, on behalf of
itself and all similarly situated
holders of TRIBUNE PUBLISHING
COMPANY, a Delaware corporation,
Plaintiff,
v.
CAROL CRENSHAW, PHILIP G.
FRANKLIN, TERRY JIMENEZ,
CHRISTOPHER MINNETIAN,
DANA GOLDSMITH NEEDLEMAN,
RICHARD A. RECK, TRIBUNE
PUBLISHING COMPANY, and
COMPUTERSHARE TRUST
COMPANY, N.A.,
Defendants.
C.A. No. 2020-0716-KSJM
SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION,
SETTLEMENT FAIRNESS HEARING, AND RIGHT TO APPEAR
TO: All record holders and all beneficial owners of Tribune
Publishing Company ("Tribune") common stock who held or owned such
stock as of July 28, 2020 and who continue to hold such stock
through and including February 9, 2021 (the "Settlement Class").
Members of the Settlement Class are referred to herein as "Class
Members."
Please read this notice carefully. your rights will be affected by
a class action lawsuit pending in this court.
YOU ARE HEREBY NOTIFIED that the above-captioned class action (the
"Action") is pending in the Delaware Court of Chancery (the
"Court").
YOU ARE ALSO NOTIFIED that the Plaintiff in the Action, on behalf
of itself and the Settlement Class, has reached a proposed
settlement of the Action (the "Settlement"), which, if approved by
the Court, will resolve all claims in the Action. Pursuant to the
Settlement, Defendants have agreed to amend Tribune's Rights
Agreement to (a) increase the triggering threshold from 10% to 15%
ownership, (b) amend the "Acting in Concert" definition, and (c)
amend the definition of "Passive Investor." A more detailed
description of the Settlement terms, as well as a description of
the history of the litigation and an explanation of Class Members'
legal rights with respect to the Settlement, is set forth in the
full Notice of Pendency and Proposed Settlement of Class Action,
Settlement Fairness Hearing, and Right to Appear (the "Notice"). If
you have not yet received the Notice, you may obtain a copy by
contacting Tribune Shareholder Litigation, c/o Epiq, PO Box 2857,
Portland, OR 97208-2857. A copy of the Notice can also be
downloaded from the websites
https://investor.tribpub.com/settlement and
www.TribuneShareholderLitigation.com.
A hearing (the "Settlement Fairness Hearing") will be held on April
15, 2021 at 11:00 a.m., before Vice Chancellor Kathaleen St. J.
McCormick, either in person at the Leonard L. Williams Justice
Center, 500 North King Street, Wilmington, Delaware 19801, or by
telephone or videoconference (in the discretion of the Court), to,
among other things: (i) determine whether the Action may be
permanently maintained as a non-opt out class action and whether
the Settlement Class should be certified permanently, for purposes
of the Settlement, pursuant to Court of Chancery Rules 23(a),
23(b)(1) and 23(b)(2); (ii) determine whether Plaintiff may be
permanently designated as representative for the Settlement Class
and Plaintiff's Counsel as counsel for the Settlement Class, and to
determine whether Plaintiff and Plaintiff's Counsel have adequately
represented the interests of the Settlement Class in the Action;
(iii) determine whether the proposed Settlement on the terms and
conditions provided for in the Stipulation is fair, reasonable, and
adequate to the Settlement Class, and should be approved by the
Court; (iv) determine whether a Judgment substantially in the form
attached as Exhibit B to the Stipulation and Agreement of
Settlement, Compromise, and Release dated February 9, 2021 should
be entered dismissing the Action with prejudice against Defendants;
(v) determine whether the application by Plaintiff's Counsel for an
award of attorneys' fees and litigation expenses should be
approved; and (vi) consider any other matters that may properly be
brought before the Court in connection with the Settlement.
Please Note: The date and time of the Settlement Fairness Hearing
may change without further written notice to Class Members. In
addition, the ongoing COVID-19 health emergency is a fluid
situation that creates the possibility that the Court may decide to
conduct the Settlement Fairness Hearing by video or telephonic
conference, or otherwise allow Class Members to appear at the
hearing by phone or video, without further written notice to Class
Members. In order to determine whether the date and time of the
Settlement Fairness Hearing have changed, or whether Class Members
must or may participate by phone or video, it is important that you
monitor the Court's docket and the websites
https://investor.tribpub.com/settlement and
www.TribuneShareholderLitigation.com, before making any plans to
attend the Settlement Fairness Hearing. Any updates regarding the
Settlement Fairness Hearing, including any changes to the date or
time of the hearing or updates regarding in-person, telephonic, or
video appearances at the hearing, will be posted to the websites
https://investor.tribpub.com/settlement and
www.TribuneShareholderLitigation.com. Also, if the Court requires
or allows Class Members to participate in the Settlement Fairness
Hearing by telephone or video conference, the information needed to
access the conference will be posted to the websites
https://investor.tribpub.com/settlement and
www.TribuneShareholderLitigation.com.
Any objections to the proposed Settlement or Plaintiff's Counsel's
motion for an award of attorneys' fees and expenses must be filed
with the Register in Chancery in the Court of Chancery of the State
of Delaware and delivered to Plaintiff's Counsel and Defendants'
Counsel such that they are received no later than April 5, 2021, in
accordance with the instructions set forth in the Notice.
Please do not contact the Court or the Office of the Register in
Chancery regarding this notice. All questions about this notice,
the Action, or the proposed Settlement should be directed to
Plaintiff's Counsel.
Requests for the Notice should be made to:
Tribune Shareholder Litigation
c/o Epiq
PO Box 2857
Portland, OR 97208-2857
1-866-686-8670
info@TribuneShareholderLitigation.com
www.TribuneShareholderLitigation.com
Inquiries, other than requests for the Notice, should be made to
Plaintiff's Counsel:
Gregory V. Varallo, Esq.
Bernstein Litowitz Berger & Grossmann LLP
500 Delaware Avenue, Suite 901
Wilmington, DE 19801
1-800-380-8496
settlements@blbglaw.com
Jeremy S. Friedman, Esq.
Friedman Oster & Tejtel PLLC
493 Bedford Center Road, Suite 2D
Bedford Hills, NY 10507
1-888-529-1108
jfriedman@fotpllc.com
Richard Maniskas, Esq.
RM Law, P.C.
1055 Westlakes Drive, Suite 300
Berwyn, PA 19312
484-324-6800
rmaniskas@rmclasslaw.com
BY ORDER OF THE COURT OF
CHANCERY OF THE STATE OF DELAWARE [GN]
TSG COLLECTIONS: Kosyan Files FDCPA Suit in E.D. New York
---------------------------------------------------------
A class action lawsuit has been filed against TSG Collections, LLC.
The case is styled as Victoria Kosyan, individually and on behalf
of all others similarly situated v. TSG Collections, LLC, Case No.
1:21-cv-01320 (E.D.N.Y., March 11, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
TSG COLLECTIONS, LLC --
https://www.tsgcollections.net/11874684.cstsite.com/index.html --
is a debt collection agency.[BN]
The Plaintiff is represented by:
Uri Horowitz, Esq.
HOROWITZ LAW, PLLC
14441 70th Road
Flushing, NY 11367
Phone: (718) 705-8706
Fax: (718) 705-8705
Email: uri@horowitzlawpllc.com
UNHEARD LLC: Monegro Files ADA Suit in S.D. New York
----------------------------------------------------
A class action lawsuit has been filed against Unheard, LLC. The
case is styled as Frankie Monegro, on behalf of himself and all
others similarly situated v. Unheard, LLC, Case No. 1:21-cv-02140
(S.D.N.Y., March 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Unheard -- https://www.unheardpdx.com/ -- is a skateboard
distribution company based in Portland, Oregon supporting the
following brands: Bacon Skateboards, Dieta Skateboards, 11:11
Bearings, Jivaro Wheels, The Portland Wheel Company and Jessup
Griptape.[BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: mrozenberg@steinsakslegal.com
UNITED AIRLINES: Flores' Second Amended Class Complaint Dismissed
-----------------------------------------------------------------
In the case, PATRICIA FLORES, Plaintiff v. UNITED AIRLINES,
Defendant, Case No. 18 C 6571 (N.D. Ill.), Judge Jorge L. Alonso of
the U.S. District Court for the Northern District of Illinois,
Eastern Division, grants United's motion to dismiss the Plaintiff's
second amended complaint.
On its website, United sells tickets for the air transportation it
provides. After a customer such as the Plaintiff has chosen a
flight but before she has purchased it, United offers the customer
the option to purchase travel insurance.
United's customers are not required to purchase travel insurance in
order to purchase a ticket to fly, but they are required either to
accept or reject the option of travel insurance. Under the heading
"United Travel Options," the website says, "Cover your trip with
Travel Guard(R) insurance." A customer then has two options from
which to choose: (1) "Yes, insure my trip for only $[price;]" or
(2) "No, I will travel without insurance for my [ticket price]
trip." Below the two options, the website says, "Coverage is
offered by Travel Guard Group, Inc."
The Plaintiff, for her part, purchased a travel insurance policy
from United's website on Feb. 23, 2018. She does not say how much
she paid. She later "received an email from the insurance provider
attaching her policy, which did not reference United." The
Plaintiff also alleges that, when United sends a ticket receipt,
the receipt "lists the specific amount charged for 'Trip insurance'
and notes that the charge will be 'Billed separately by Travel
Guard Group, Inc.'" She does not allege that she received such a
receipt from United.
At no point during the Plaintiff's transaction to purchase travel
insurance did United disclose to her that it had a financial
interest in her purchase of travel insurance, but it did. The
Plaintiff alleges "at no point does United disclose that it
receives a commission every time a customer elects to purchase the
travel insurance product, nor that the amount of that commission
was 50% or more of the total premium paid by the customer for the
travel insurance product." According to her second amended
complaint, United has also concealed and/or failed to disclose to
state regulators the fact that it receives a commission every time
a customer elects to purchase a travel insurance product through
its website.
The Plaintiff alleges that the price of the travel insurance "is
set by the insurer, not United" and is based "solely on overall
ticket price." She alleges that the premium is not affected by the
dates of travel, the routes or the customer's individual
circumstances. She also alleges that because the price of travel
insurance incorporates an illegal and excessive commission paid to
United, customers pay an inflated price.
The Court previously dismissed the Plaintiff's first amended
complaint asserting claims arising out of her decision to purchase
travel insurance on the Defendant's website. The Court dismissed
her RICO claims with prejudice and her fraud and unjust enrichment
claims without prejudice. The Plaintiff has filed a second amended
complaint, which United moves to dismiss.
In Count I, the Plaintiff asserts that the Defendant violated the
Illinois Consumer Fraud and Deceptive Trade Practices Act ("ICFA"),
815 ILCS 505/1, et seq. To state a claim, the Plaintiff must
allege: "(1) a deceptive act or practice by the Defendant; (2) the
Defendant's intent that the Plaintiff relies on the deception; (3)
the occurrence of the deception in the course of conduct involving
trade or commerce, and (4) actual damage to the Plaintiff (5)
proximately caused by the deception."
Judge Alonso opines that the Plaintiff has failed to state a claim
based on a deceptive practice under the ICFA and has not alleged a
substantial injury. The alleged practice also does not cause
substantial injury and is not immoral, unethical, oppressive or
unscrupulous. A conclusory allegation of a minor, technical
statutory violation that did not injure the Plaintiff is not enough
to state a claim for an unfair practice under the ICFA. Lastly,
the Plaintiff has not plausibly alleged the transaction occurred
primarily and substantially in Illinois. The facts that a
defendant is headquartered in Illinois, that the fraudulent scheme
emanated from Illinois and/or that a website was designed in
Illinois do not suffice to establish that a transaction occurred
primarily and substantially in Illinois.
In three tries, the Judge holds that the Plaintiff has not stated a
claim under the ICFA. For all of these reasons, he dismisses Count
I with prejudice.
In Count II, the Plaintiff seeks relief for unjust enrichment. The
Judge opines that the claim fails for the same reasons as
Plaintiff's ICFA claim. The Plaintiff failed to state a claim for
unjust enrichment because she failed to state a claim for fraud or
for violation of the ICFA. Thus, the Judge also dismisses Count II
with prejudice.
For the reasons he set forth, Judge Alonso grants the Defendant's
motion to dismiss. He dismisses Counts I and II with prejudice.
The civil case is terminated.
A full-text copy of the Court's March 5, 2021 Merandum Opinion &
Order is available at https://tinyurl.com/2ues4nx4 from
Leagle.com.
UNITED SERVICES: Thompson Bid to Certify Class Due Nov. 11
----------------------------------------------------------
In the class action lawsuit captioned as BRONSON D. THOMPSON,
individually and on behalf of all others similarly situated, v.
UNITED SERVICES AUTOMOBILE ASSOCIATION, Case No.
4:20-cv-00123-SA-JMV (N.D. Miss.), the Hon. Judge Jane M. Virden
entered an order regarding scheduling deadlines as concerns class
certification issues:
1. The parties' experts must be disclosed by the following
dates:
-- The Plaintiff: May 25, 2021
-- The Defendant: June 30, 2021;
2. All discovery must be completed by September 29, 2021;
3. The Plaintiff's motion to Certify Class must be filed by
November
11, 2021;
4. The Defendant's Opposition to Plaintiff's Motion to
Certify is due December 23, 2021;
5. The Plaintiff's Reply in Support of Motion to Certify
Class is due January 3, 2022;
6. Motions Challenging Another Parties' Expert for Class
Certification Purposes is due October 14, 2021;
7. The parties request that the Court address this date after
the Court's ruling on the Plaintiff's Class Certification
Motion; and
8. The parties request that the Court address trial-related
deadlines and issues after the Court's ruling on the
Plaintiff's Class Certification Motion.
The United Services Automobile Association is a San Antonio-based
Fortune 500 diversified financial services group of companies
including a Texas Department of Insurance-regulated reciprocal
inter-insurance.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at https://bit.ly/38AAL1f at no extra charge.[CC]
The Plaintiff is represented by:
Edmund A. Normand, Esq.
NORMAND PLLC
Post Office Box 1400036
Orlando, FL 32814-0036
Telephone: (407) 603-6031
Facsimile: (888) 974-2175
E-mail: ed@normandpllc.com
service@normandpllc.com
- and -
Thomas M. Flanagan, Jr., Esq.
PO Box 1081
Greenwood, MS 38935
Telephone: (662) 453-6626
E-mail: tomflanagan@bellsouth.net
The Defendant is represented by:
William N. Reed, Esq.
Blythe K. Lollar, Esq.
Baker, Donelson, Esq.
BAKER, DONELSON, BEARMAN
CALDWELL & BERKOWITZ, PC
One Eastover Center
100 Vision Drive, Suite 400 (ZIP 39211)
P. O. Box 14167
Jackson, MS 39236
Telephone: (601) 351-2410
Facsimile: (601) 592-2410
E-mail: wreed@bakerdonelson.com
blollar@bakerdonelson.com
- and -
Rodger L. Eckelberry, Esq.
Rand McClellan, Esq.
Martina Ellerbe, Esq.
Mathew G. Drocton, Esq.
BAKER & HOSTETLER LLP
200 Civic Center Drive, Suite 1200
Columbus, OH 43215
Telephone: (614) 228-1541
Facsimile: (614) 462-2616
reckelberry@bakerlaw.com
E-mail: rmcclellan@bakerlaw.com
mellerbe@bakerlaw.com
mdracton@bakerlaw.com
UNITED STATES: Court Junks Bowen Class Action w/o Prejudice
-----------------------------------------------------------
In the class action lawsuit captioned as JOEL BOWEN v. THE BUREAU
OF PRISON OF THE UNITED STATES OF AMERICA, ET AL., Case No.
5:20-cv-00062-RWS-CMC (E.D. Tex.), the Hon. Judge Robert W
Schroeder III entered an order as follows:
1. adopting the Reports of the Magistrate Judge as the
opinion of the District Court;
2. denying Bowen's motion for class certification; and
3. dismissing the civil action without prejudice for failure
to prosecute or obey an order of the Court.
The Court has reviewed the pleadings and the Reports of the
Magistrate Judge and has determined that the Reports are correct.
Bowen was ordered to pay an initial partial filing fee of $45.00 in
accordance with 28 U.S.C. section 1915(b). He received a copy of
this order on December 10, 2020, but has not complied or has he
responded in any way. The Magistrate Judge issued a Report
recommending the lawsuit be dismissed without prejudice for failure
to prosecute or to obey an order of the Court. By separate Report,
the Magistrate Judge also recommended denial of Bowen's motion for
class certification.
The Federal Bureau of Prisons is a United States federal law
enforcement agency under the Department of Justice responsible for
the care, custody, and control of incarcerated individuals.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at http://bit.ly/3eF6Skiat no extra charge.[CC]
UNITED STATES: Immigration Detainees Class Certified in Gomes v DHS
-------------------------------------------------------------------
In the case, Robson Xavier Gomes v. Acting Secretary, U.S.
Department of Homeland Security, et al., Civil No. 20-cv-453-LM
(D.N.M.), Judge Landya McCafferty of the U.S. District Court for
the District of New Hampshire granted the Petitioner's motion
seeking final certification of the proposed class.
Mr. Gomes brings the habeas corpus petition pursuant to 28 U.S.C.
Section 2241. Petitioner Gomes seeks declaratory and injunctive
relief on behalf of himself and a putative class of civil
immigration detainees housed by Immigration and Customs Enforcement
("ICE") at the Strafford County House of Corrections ("SCHOC").
Gomes claims that, by creating or allowing policies and practices
at SCHOC that put civil immigration detainees' health at
substantial risk of harm from COVID-19, Respondents Acting
Secretary of the United States Department of Homeland Security,
Acting Field Director of Immigration and Customs Enforcement, and
Superintendent of SCDOC have violated the putative class members'
Fifth Amendment due process rights.
On May 4, 2020, the Court provisionally certified the putative
class for the limited purpose of holding expedited bail hearings
for the class members.
Now before the Court is the Petitioner's motion seeking final
certification of the proposed class. The Petitioner seeks
certification of the class of all individuals who are now held in
civil immigration detention at SCHOC. Gomes, the sole remaining
named petitioner, is the proposed class representative.
In their objection to class certification, the Respondents
challenge whether the proposed class satisfies the commonality
requirements of Rule 23(a)(2) and 23(b)(2) and the typicality
requirements of Rule 23(a)(3). In their supplemental memorandum in
support of their objection, they additionally challenge whether the
proposed class satisfies the numerosity requirements of Rule
23(a)(1).
Judge McCafferty finds that the prerequisites for class
certification set forth in Federal Rule of Civil Procedure 23 are
satisfied. She finds that (i) the number of current and future
members of the putative class exceeds 40 persons and that joinder
of the potential class members would be impracticable; (ii) the
Petitioner's due process claim thus presents at least two common
questions: whether each respondent had actual knowledge of the risk
posed to the putative class members and whether each respondent
failed to take reasonable steps to mitigate that risk; and a class
treatment would have the capacity to generate at least some "common
answers apt to drive the resolution of the litigation"; (iii) the
Petitioner has established typicality; and (iv) nothing in the
record before the Court suggests any conflict of interest between
petitioner and the absent class members.
The Judge further finds that (i) because non-individualized
declaratory or injunctive remedies could provide relief to all
class members, class certification under Rule 23(b)(2) is
appropriate; and (ii) the history of this litigation reveals that
the counsel will devote appropriate resources to this action and
will fairly and adequately represent the class.
Accordingly, Judge McCafferty granted the Petitioner's motion, and
certified the proposed class of SCHOC civil immigration detainees.
Petitioner Gomes is appointed the class representative, and Gilles
Bissonnette of the American Civil Liberties Union of New Hampshire
and Scott O'Connell of Nixon Peabody, LLP are appointed as the
class counsel.
A full-text copy of the Court's March 5, 2021 Order is available at
https://tinyurl.com/u7h9rbtz from Leagle.com.
URBAN COMPASS: Kaznecki Sues Over Unsolicited Phone Calls
---------------------------------------------------------
DAVID W. KAZNECKI, individually and on behalf of all others
similarly situated, Plaintiff v. URBAN COMPASS, INC., a Delaware
Corporation, d/b/a COMPASS, Defendant, Case No. 9:21-cv-80473-XXXX
(S.D. Fla., March 4, 2021) is a class action complaint brought
against the Defendant for its alleged violations of the Telephone
Consumer Protection Act.
The Plaintiff claims alleges that, although he never provided the
Defendant his cellular telephone number nor his prior express
written consent to the Defendant, the Defendant contacted him by
placing numerous calls and sending a voice message to his cellular
telephone number ending in 4600 that has been registered on the
National Do Not Call Registry since February 7, 2008. The content
of the calls received by the Plaintiff were for the purpose of
marketing, advertising, and promoting the Defendant's business and
services as part of its telemarketing strategy, the suit adds.
According to the complaint, the Plaintiff was damaged by the
Defendant's unsolicited calls because his privacy was wrongfully
invaded and he has become understandably aggravated with having to
deal with the frustration of repeated, unwanted calls.
On behalf of himself and all other similarly situated persons, the
Plaintiff seeks statutory damages, willful damages, an injunction
prohibiting the Defendant's unsolicited calls to telephone numbers
assigned to the NDNC without the called party's consent, reasonable
attorney's fees and costs, and other relief as the Court deems
reasonable and just.
Urban Compass, Inc. operates as a real estate technology company.
[BN]
The Plaintiff is represented by:
Seth M. Lehrman, Esq.
EDWARDS POTTINGER LLC
425 North Andrews Ave., Suite 2
Fort Lauderdale, FL 33301
Tel: (954) 524-2820
Fax: (954) 524-2822
E-mail: seth@epllc.com
- and –
Joshua H. Eggnatz, Esq.
EGGNATZ | PASCUCCI
7450 Griffin Road, Suite 230
Davie, FL 33314
Tel: (954) 889-3359
Fax: (954) 889-5913
E-mail: JEggnatz@JusticeEarned.com
VALVE CORPORATION: Class Status Bid Filing Due July 30
------------------------------------------------------
In the class action lawsuit captioned as G.G., et al., v. VALVE
CORPORATION, Case No. e 2:16-cv-01941-JLR (W.D. Wash.), the Hon.
Judge James L. Robart entered an order adopting the parties'
proposed class certification briefing schedule and directing that
the briefing on class certification shall proceed as follows:
Deadline to complete fact discovery May 28, 2021
related to class certification:
The Plaintiffs' deadline to disclose June 4, 2021
experts for class certification
pursuant to Fed. R. Civ. P. 26(a)(2):
Valve's deadline to disclose experts July 6, 2021
for class certification pursuant to
Fed. R. Civ. P. 26(a)(2):
Deadline to complete expert discovery July 16, 2021
regarding experts for class
certification, including all
expert depositions:
Deadline to file Plaintiffs' Motion July 30, 2021
for Class Certification accompanied by
the evidence and declarations on which
the Plaintiffs rely in seeking class
certification:
Deadline to file Valve's Opposition September 29, 2021
to Plaintiffs' Motion for Class
Certification accompanied by the
evidence and declarations on which
Valve relies in opposing class
certification:
Deadline to file Plaintiffs' October 29, 2021
Reply Brief in Support of
Motion for Class Certification
Valve Corporation, also known as Valve Software, is an American
video game developer, publisher, and digital distribution company
headquartered in Bellevue, Washington.
A copy of the Court's order dated March 2, 2020 is available from
PacerMonitor.com at https://bit.ly/3ezqgzl at no extra charge.[CC]
WALMART INC: Court Dismisses With Prejudice Gabertan's TCPA Claim
-----------------------------------------------------------------
In the case, CHARLIE GABERTAN, Plaintiff v. WALMART, INC.,
Defendant, Case No. C20-5520BHS (W.D. Wash.), Judge Benjamin H.
Settle of the U.S. District Court for the Western District of
Washington, Tacoma:
(i) granted Walmart's Motion to Dismiss;
(ii) denied Walmart's Motion to Stay Discovery pending the
resolution of its Motion to Dismiss, and
(iii) denied Plaintiff Gabertan's responsive Motion to Compel
Discovery.
The case is a putative Telephone Consumer Protection Act ("TCPA")
class action. Gabertan alleges that on April 7, 2020, Walmart
Pharmacy sent a single, unauthorized text message to his cell
phone. He alleges that the text message's purpose was to promote
Walmart's goods and services (including the link to the Walmart
Pharmacy website). He thus alleges that the text was an
advertisement, and that because he did not give Walmart his prior
express written consent to receive it, the text message violated
the TCPA.
Mr. Gabertan seeks to represent a nationwide class of persons who
received a similar text message.
Walmart seeks dismissal under Rule 12(b)(6), arguing primarily and
most persuasively that the text message was facially an
informational communication made for an emergency purpose, to which
the TCPA does not apply.
The TCPA empowers the Federal Communications Commission to
implement the Act through regulation, and courts have held that the
FCC's regulations should be given "controlling weight." For
automated calls involving advertisements or telemarketing, the FCC
requires that the recipient must consent to receiving such calls.
On March 20, 2020, in response to the COVID-19 pandemic, the FCC
unilaterally issued a Declaratory Ruling -- In Re Rules and
Regulations Implementing the Telephone Consumer Protection Act of
1991, Declaratory Ruling, 35 FCC Rcd. 2840 (2020). The Ruling
reiterated that calls or texts made for an "emergency purpose" are
excepted from the TCPA, and that the exception is intended to apply
in "instances that pose significant risks to public health and
safety, and where the use of prerecorded message calls could speed
the dissemination of information regarding potentially hazardous
conditions to the public."
The FCC's Ruling further concluded that the COVID-19 pandemic is an
imminent health risk, and that the TCPA does not prohibit health
care providers from making informational calls necessitated by it
which are directly related to the pandemic's health risks to the
public. Thus, it explained, a health care provider's informational
call designed to inform and update the public regarding measures to
address the pandemic would be made in a situation that "affects the
health and safety of consumers" and would thus be exempt from the
TCPA.
Walmart argues that its single text message falls squarely within
the TCPA's emergency purpose exception, as emphasized by the FCC's
March 20, 2020 Declaratory Ruling. The Walmart Pharmacy is a
health care provider, and its message was facially designed to, and
did, inform its customer that he could arrange to pick up his
prescription curbside, or to have the pharmacy mail it, rather than
going in to the pharmacy counter to pick it up as he normally
would. It argues the text facially does not offer anything for
sale, and it does not solicit new business; its sole purpose was to
inform its customer about the coronavirus and available mitigation
efforts (stay at home, social distancing) espoused by federal and
state health authorities.
Mr. Gabertan argues that the FCC's March 2020 guidance "carved a
very narrow exception" for a "limited set" of pandemic-related
communications. He suggests the FCC issued its Ruling out of fear
that companies like Walmart would use to pandemic to profit on
consumers' fears, and that the Ruling's purpose was to caution them
that "only a limited scope of communications 'truly necessary
because of COVID-19 outbreak, and directly related to the imminent
health or safety risk arising out of the COVID-19 pandemic' would
be permitted under the Ruling," and the TCPA.
Judge Settle holds that the Ruling itself undermines at least the
latter claim. The FCC characterized its Ruling as "providing
relief" from the TCPA's reach for callers, not call or text
recipients, and the goal was plainly to permit health care
providers to disseminate emergency health information without
triggering TCPA class action liability. And even before its March
2020 Ruling, the FCC had held that the TCPA's emergency exception
was to be interpreted broadly; it was not and is not a "very
narrow" exception, as Gabertan advocates.
Mr. Gabertan argues that Walmart's text message was facially an
advertisement, akin to one promoting a commercial grocery delivery
service. He argues that to qualify under the emergency exception,
a call or text "must be about a bona fide emergency that is
relevant to the called party."
But unlike a hypothetical retailer advertising grocery delivery,
the Judge finds that the Defendant pharmacy is a health care
provider, providing information to its customer about safe access
to prescription medications during the pandemic. The pandemic is a
bona fide emergency, and information about how to obtain
prescription medications without exposing oneself to COVID-19 is
relevant to the public, including the defendant pharmacy's
customer, Gabertan.
Mr. Gabertan claims Walmart contends that any communication
remotely related to prescription medication falls within the
exception because it concerns the health and safety of consumers.
He then argues that at least two district courts, Dennis and Smith
v. Rite Aid Corp, No. 17-CV-6044 CJS, 2018 WL 5828693 (W.D.N.Y.
Nov. 7, 2018), have rightly rejected this claim.
The Judge finds two problems with this argument. First, he says it
is not an accurate summary of Walmart's position, and he need not
adopt that unwarranted reading of the TCPA (or the Declaratory
Ruling) to determine that the text Walmart sent to Gabertan was
exempt. Second, he says Gabertan's characterization does not
address the context of the case. Walmart's text was far more than
"remotely related" to prescription medications; it was only about
prescriptions, and how its customers could safely continue to
obtain them during the COVID-19 emergency. Neither Dennis nor
Smith is precedent for concluding that the text at issue was not
made for an emergency purpose. Both pre-date the FCC's March 2020
ruling (and the pandemic), and both involved multiple calls over
time, to a wrong (or reassigned) number.
Finally, Gabertan argues that the TCPA's emergency exception is an
affirmative defense upon which Walmart bears the burden of proof,
making its application in the context of a motion to dismiss
inappropriate.
The Judge holds that the entirety of text at issue is presented on
the face of Gabertan's complaint. There is no contextual nuance,
or disputed fact, related to the text, its content, or its purpose.
It is clear from the face of the pleading that the single,
informational text message Walmart sent to Gabertan falls squarely
within the TCPA's emergency exception, particularly as explained by
the FCC's March 2020 Declaratory Ruling. Its sole purpose was to
provide information to its customer about the pandemic and its
health and safety risks, and how to mitigate those risks, and was
not an advertisement. It is exempt from the reach of the TCPA, as
a matter of law.
For these reasons, Judge Settle granted Walmart's Motion to Dismiss
Gabertan's TCPA claim, and dismissed that claim with prejudice.
A full-text copy of the Court's March 5, 2021 Order is available at
https://tinyurl.com/2u6tddxj from Leagle.com.
WALMART INC: Pomerantz Law Firm Reminds of March 22 Deadline
------------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against Walmart Inc. ("Walmart" or the "Company") (NYSE: WMT) and
certain of its officers. The class action, filed in the United
States District Court for the District of Delaware, and docketed
under 21-cv-01811, is on behalf of a class consisting of all
investors who purchased or otherwise acquired publicly traded
Walmart securities between March 30, 2016 and December 22, 2020,
inclusive (the "Class Period"). Plaintiff seeks to recover
compensable damages caused by Defendants' violations of the federal
securities laws under the Securities Exchange Act of 1934 (the
"Exchange Act").
If you are a shareholder who purchased Walmart securities during
the Class Period, you have until March 22, 2021 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at newaction@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and the number of shares purchased.
Defendant Walmart engages in the retail and wholesale operations in
various formats worldwide. The Company operates in three segments:
Walmart U.S., Walmart International, and Sam's Club. It operates
supercenters, supermarkets, hypermarkets, warehouse clubs, cash and
carry stores, discount stores, drugstores, and convenience stores;
membership-only warehouse clubs; ecommerce websites, such as
walmart.com, walmart.com.mx, asda.com, walmart.ca, flipkart.com,
and samsclub.com; and mobile commerce applications. It operates
approximately 11,500 stores and various e-commerce Websites under
the 56 banners in 27 countries.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements, and failed to
disclose material adverse facts about the Company's business,
operations, and compliance policies. Specifically, Defendants made
false and/or misleading statements and failed to disclose to
investors that: (1) the Company knowingly filled prescriptions that
were issued by so-called "pill-mill" prescribers; (2) the Company
filled thousands of prescriptions that showed obvious red flags,
including highly-dangerous cocktails of drugs, (3) the Company's
managers made it difficult for Walmart pharmacists to comply with
their legal obligations by pressuring them to fulfill as many
orders as possible; (4) hence, the Company's pharmacy revenues were
inflated because the Company filled thousands of invalid
prescriptions in violation of the Controlled Substance Act
dispensing requirements; (5) the aforementioned conduct would
subject the Company to regulatory scrutiny; and (6) 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.
On December 22, 2020, while the market was open, the Department of
Justice announced in a press release that it has filed a lawsuit
against Walmart for alleged violations of the Controlled Substances
Act and the Company's role in the opioid epidemic.
On this news, Walmart's stock price fell $2.75 per share, or 1.88%,
over the next two trading days to close at $143.22 per share on
December 23, 2020.
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com
888-476-6529 ext. 7980 [GN]
WELLPET LLC: Class Action Over Arsenic in Dog Food Can Proceed
--------------------------------------------------------------
Brendan Pierson, writing for Reuters, reports that WellPet LLC,
maker of high-end Wellness brand pet food, must face class action
claims that three of its dog foods contain small but potentially
harmful amounts of lead and arsenic, a federal judge has ruled.
U.S. District Judge William Orrick in San Francisco ruled on Feb.
26 that plaintiff Daniel Zeiger "has shown genuine disputes of
material fact about the safety" of lead and arsenic in the food,
largely denying WellPet's motion for summary judgment, though he
ruled in favor of the company on claims involving another alleged
contaminant, bisphenol A. [GN]
WONDERDADS LLC: Quezada Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against Wonderdads, LLC. The
case is styled as Jose Quezada, on behalf of himself and all others
similarly situated v. Wonderdads, LLC, Case No. 1:21-cv-02138
(S.D.N.Y., March 11, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
WonderDads -- https://wonderdads.com/ -- is the first-ever Digital
Subscription for busy Dads, with a focus on providing tool,
resources and benefits that help Dads embrace their kid's childhood
years in new, innovative and fun ways.[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
WORKHORSE GROUP: Pomerantz Law Reminds of May 7 Deadline
--------------------------------------------------------
Pomerantz LLP announces that a class action lawsuit has been filed
against Workhorse Group Inc. ("Workhorse" or the "Company")
(NASDAQ: WKHS) and certain of its officers. The class action, filed
in the United States District Court for the Central District of
California, and docketed under 21-cv-02207, is on behalf of a class
consisting of all persons and entities other than Defendants that
purchased or otherwise acquired Workhorse securities between July
7, 2020 and February 23, 2021, inclusive (the "Class Period").
Plaintiff seeks to recover compensable damages caused by
Defendants' violations of the federal securities laws under the
Securities Exchange Act of 1934 (the "Exchange Act").
If you are a shareholder who purchased Workhorse securities during
the Class Period, you have until May 7, 2021 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com. To discuss this
action, contact Robert S. Willoughby at newaction@pomlaw.com or
888.476.6529 (or 888.4-POMLAW), toll-free, Ext. 7980. Those who
inquire by e-mail are encouraged to include their mailing address,
telephone number, and the number of shares purchased.
Workhorse is a technology company engaged in the development and
manufacturing of electric delivery vehicles.
In 2016, the United States Postal Service ("USPS") announced the
USPS Next Generation Delivery Vehicle ("NGDV") project, a
competitive multiyear acquisition process for replacing
approximately 165,000 package delivery vehicles.
Workhorse was one of the companies vying for the NGDV contract,
which was thought to be worth approximately $6.3 billion.
The complaint alleges that, throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operations, and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) the Company was merely hoping
that the USPS was going to select an electric vehicle as its Next
Generation Delivery Vehicle, and had no assurance or indication
from USPS that this was the case; (ii) the Company had concealed
the fact that, as revealed by the postmaster general in explaining
the ultimate decision not to select an electric vehicle,
electrifying the USPS's entire fleet would be impractical and
astronomically expensive; and (iii) as a result, Defendants' public
statements were materially false and/or misleading at all relevant
times.
On February 23, 2021, while the market was open, the USPS issued a
press release entitled "U.S. Postal Service Awards Contract to
Launch Multi-Billion-Dollar Modernization of Postal Delivery
Vehicle Fleet." The press release announced that Oshkosh Defense,
not Workhorse, had won the lucrative NGDV contract.
On this news, securities of Workhorse fell $14.87 per share, or
47%, to close at $16.47 per share in the regular session on
February 23, 2021. The price continued to drop in after-hours
trading and opened on February 24, 2021 at a price of $14.07 per
share, a fall of over 50% from the previous open, damaging
investors.
The New York Times published an article on February 24, 2021,
entitled "Losing Bid for Postal Contract Proves Costly for
Electric-Vehicle Maker." The subtitle read: "Workhorse, a small
truck maker with big ambitions, was counting on the deal for a
surge in revenue. Its shares lost $2 billion in value." The press
release quoted the postmaster general, Louis DeJoy, who said the
USPS's plan called for 10 percent of its new trucks to be electric.
When asked by Representative Jackie Speier, a California Democrat,
why that figure was not 90 percent, Mr. DeJoy pointed to cost,
stating: "We don't have the three or four extra billion dollars in
our plan right now that it would take to do it[.]"
The Pomerantz Firm, with offices in New York, Chicago, Los Angeles,
and Paris is acknowledged as one of the premier firms in the areas
of corporate, securities, and antitrust class litigation. Founded
by the late Abraham L. Pomerantz, known as the dean of the class
action bar, the Pomerantz Firm pioneered the field of securities
class actions. Today, more than 80 years later, the Pomerantz Firm
continues in the tradition he established, fighting for the rights
of the victims of securities fraud, breaches of fiduciary duty, and
corporate misconduct. The Firm has recovered numerous
multimillion-dollar damages awards on behalf of class members. See
www.pomerantzlaw.com
CONTACT:
Robert S. Willoughby
Pomerantz LLP
rswilloughby@pomlaw.com [GN]
XL FLEET: RM LAW Reminds Investors of May 7 Plaintiff Deadline
--------------------------------------------------------------
RM LAW, P.C. announces that a class action lawsuit has been filed
on behalf of all persons or entities that purchased XL Fleet Corp.
("XL Fleet" or the "Company") (NYSE: XL) securities during the
period from October 2, 2020 through March 2, 2021, inclusive (the
"Class Period").
XL Fleet shareholders may, no later than May 7, 2021, move the
Court for appointment as a lead plaintiff of the Class. If you
purchased shares of XL Fleet and would like to learn more about
these claims or if you wish to discuss these matters and have any
questions concerning this announcement or your rights, contact
Richard A. Maniskas, Esquire toll-free at (844) 291-9299 or to sign
up online, click here.
The XL Fleet class action lawsuit alleges that, throughout the
Class Period, defendants made false and/or misleading statements
and/or failed to disclose that: (i) XL Fleet's salespeople were
pressured to inflate their sales pipelines to boost XL Fleet's
reported sales and backlog; (ii) at least 18 of the 33 customers
that XL Fleet featured were inactive and had not placed an order
since 2019; (iii) XL Fleet's technology had been materially
overstated and offered only 5% to 10% of fleet savings; (iv) XL
Fleet lacked the supply chain and engineers to roll out new
products on the announced timelines; and (v) as a result of the
foregoing, defendants' positive statements about XL Fleet's
business, operations, and prospects were materially misleading
and/or lacked a reasonable basis.
On March 3, 2021, Muddy Waters Research published a report entitled
"XL Fleet Corp. (NYSE: XL): More SPAC Trash," alleging, among other
things, that salespeople "were pressured to inflate their sales
pipelines materially in order to mislead XL [Fleet]'s board and
investors" and that "customer reorder rates are in reality quite
low" due to "poor performance and regulatory issues." Citing
interviews with former employees, the report alleged that "at least
18 of 33 customers XL [Fleet] featured were inactive." Muddy Waters
also claimed that XL Fleet has "weak technology" and that "XL's
announcement of future Class 7-8 upfits seems highly promotional"
because the task is "too technologically complex for XL [Fleet]
engineers to deliver on the promised timeline." On this news, XL
Fleet's share price fell approximately 13%, damaging investors.
If you are a member of the class, you may, no later than May 7,
2021, request that the Court appoint you as lead plaintiff of the
class. A lead plaintiff is a representative party that acts on
behalf of other class members in directing the litigation. In order
to be appointed 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. Under certain circumstances, one or more class members may
together serve as "lead plaintiff." Your ability to share in any
recovery is not, however, affected by the decision whether or not
to serve as a lead plaintiff. You may retain RM LAW, P.C. or other
counsel of your choice, to serve as your counsel in this action.
For more information regarding this, please contact RM LAW, P.C.
(Richard A. Maniskas, Esquire) toll-free at (844) 291-9299 or by
email at rm@maniskas.com or click here. For more information about
class action cases in general or to learn more about RM LAW, P.C.
please visit our website by clicking https://www.rmclasslaw.com/.
RM LAW, P.C. is a national shareholder litigation firm. RM LAW,
P.C. is devoted to protecting the interests of individual and
institutional investors in shareholder actions in state and federal
courts nationwide.
CONTACT:
RM LAW, P.C.
Richard A. Maniskas, Esquire
1055 Westlakes Dr., Ste. 300
Berwyn, PA 19312
484-324-6800
844-291-9299
rm@maniskas.com [GN]
XL FLEET: Scott+Scott Reminds Investors of May 7 Deadline
---------------------------------------------------------
Scott+Scott Attorneys at Law LLP ("Scott+Scott"), an international
shareholder and consumer rights litigation firm, announces the
filing of a class action lawsuit against XL Fleet Corp. ("XL Fleet"
or the "Company") (NYSE: XL) and certain of its officers, alleging
violations of federal securities laws. If you purchased XL Fleet
securities between October 2, 2020 and March 2, 2021, inclusive
(the "Class Period"), and have suffered a loss, you are encouraged
to contact attorney Jonathan Zimmerman for additional information
at (888) 398-9312 or jzimmerman@scott-scott.com.
XL Fleet provides vehicle electrification solutions for commercial
and municipal fleets in North America. It offers hybrid and plug-in
hybrid electric drive systems.
The lawsuit alleges, among other things, that the Company made
materially false and/or misleading statements and/or failed to
disclose: (1) that XL Fleet's salespeople were pressured to inflate
their sales pipelines to boost the Company's reported sales and
backlog; (2) that at least 18 of the 33 customers that XL Fleet
featured were inactive and had not placed an order since 2019; (3)
that XL Fleet's technology had been materially overstated and
offered only 5% to 10% of fleet savings; and (4) that XL lacks the
supply chain and engineers to roll out new products on the
announced timelines.
On March 3, 2021, Muddy Waters published a report entitled "XL
Fleet Corp. (NYSE: XL): More SPAC Trash," alleging that XL Fleet
salespeople inflated their sales, that customer orders were
actually quite low due to "poor performance and regulatory issues,"
that many customers were inactive, and that the Company lacked the
supply chain and technology to deliver on its promised product
offerings.
On this news, the price of XL Fleet stock fell by $2.09, or 13%, to
close at $13.86 per share on March 3, 2021. The share price
continued to decline by $2.69, or 19.4%, over the next two trading
sessions to close at $11.17 per share on March 5, 2021.
What You Can Do
If you purchased XL Fleet securities between October 2, 2020 and
March 2, 2021, or if you have questions about this notice or your
legal rights, you are encouraged to contact attorney Jonathan
Zimmerman at (888) 398-9312 or jzimmerman@scott-scott.com. The lead
plaintiff deadline is May 7, 2021.
About Scott+Scott Attorneys
Scott+Scott Attorneys at Law LLP has significant experience in
prosecuting major securities, antitrust, and employee retirement
plan actions throughout the United States. The firm represents
pension funds, foundations, individuals, and other entities
worldwide with offices in New York, London, Connecticut,
California, and Ohio.
Attorney Advertising
View source version on businesswire.com:
https://www.businesswire.com/news/home/20210312005513/en/
Contacts
Jonathan Zimmerman
Scott+Scott Attorneys at Law LLP
230 Park Avenue, 17th Floor, New York, NY 10169-1820
(888) 398-9312
jzimmerman@scott-scott.com [GN]
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Copyright 2021. All rights reserved. ISSN 1525-2272.
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