/raid1/www/Hosts/bankrupt/CAR_Public/210329.mbx
C L A S S A C T I O N R E P O R T E R
Monday, March 29, 2021, Vol. 23, No. 57
Headlines
A & FAYE BED: Chavez Files ADA Suit in E.D. New York
ADDUS HEALTHCARE: Bid to Certify Workers Class in Moore Suit Denied
ALKERMES PUBLIC: New York Court Dismisses Putative Class Action
ALPHA BETA: Angeles Files ADA Suit in S.D. New York
AMERICAN MERCHANDISING: Share Sues Over Failure to Pay Overtime
ARK POTOMAC: Fails to Pay Servers' Minimum & OT Wages, Felts Says
BANK OF AMERICA: 2d Cir. Vacates Dismissal of Fund Liquidation Suit
BARNABY LTD: Jaquez Files ADA Suit in S.D. New York
BARRI & ASSOCIATES: Gardner Seeks FLSA Conditional Class Status
BOB'S DISCOUNT: Espinal et al. Seek to Certify Class
BRIGHTHOUSE LIFE: Court Narrows Claims in Newton Class Suit
CAPITAL EAGLE: Fails to Pay Proper Wages, Zewdu Suit Alleges
CHICAGO, IL: Cross-Bids for Summary Judgment in CTU v. BOE Denied
CINCINNATI INSURANCE: Fifty First Files Suit in W.D. Pennsylvania
DELTA AIRLINES: Fails to Pay Paid Leaves, Haley Suit Alleges
ELLATION LLC: Angeles Files ADA Suit in S.D. New York
ENTERTAINMENT EARTH: Angeles Files ADA Suit in S.D. New York
FINELINE INDUSTRIES: Winegard Files ADA Suit in E.D. New York
FLANDERS CORPORATION: Wyllie Suit Removed to C.D. Illinois
GENEX SERVICES: Misclassifies Case Managers, Deal Suit Claims
KINDE LLC: Website Inaccessible to Blind Users, Monegro Suit Says
LIBERTY MUTUAL: Faces Gill Suit Over Unsolicited Telephone Calls
LOCTEK INC: Angeles Files ADA Suit in S.D. New York
LOUISVILLE METRO: W.D. Kentucky Certifies Class in Lott Suit
M&T BANK: Flynn Suit Transferred to N.D. Ohio
MCKINSEY & COMPANY: King County Slams Involvement in Opioid Crisis
MDL 2827: $500-Mil. Class Deal in Apple Device Suit Has Final Nod
MDL 2827: $80.6M Attys.' Fees in Apple Device Performance Suit OK'd
NASSAU COUNTY, NY: Bid to Certify Class in LaPierre Suit Denied
NATIONAL CREDIT: Dhas Files FDCPA Suit in E.D. Pennsylvania
NEMACOLIN WOODLANDS: Hook Files Suit in W.D. Pennsylvania
NEPTUNE WELLNESS: Faces Gong Suit Over Drop in Share Price
NEW YORK: Herrejon Files Bid for Class Action Certification
PIPE TRADES PENSION: Knaus Seeks Proper Benefits Under Pension Plan
PLAYMONSTER LLC: Jaquez Files ADA Suit in S.D. New York
PRETIUM RESOURCES: Osler Attorneys Discuss Securities Suit Ruling
PROSPECT CHARTERCARE: Initial Approval of Class Settlement Sought
QUALITY STONE: Vilchis et al. Sue Over Failure to Pay Laborers' OT
RCI HOSPITALITY: Misclassifies Exotic Dancers, Halverson Claims
STATE COLLECTION: Rowley Sues Over Misleading Collection Letter
STERLING PROPERTY: Fails to Pay Proper Wages, Ceballos Alleges
THAI GREENLEAF: Fails to Pay Proper Wages, Chen Suit Alleges
TRUEACCORD CORP: Kennedy Sues Over Deceptive Collection Letter
TRUEACCORD CORP: Pressley Files FDCPA Suit in New Jersey
UP FINTECH: Willard Securities Suit Tossed Without Leave to Amend
WHOLE FOODS: Aponte Sues Over Abrupt Changing of Workers' Schedule
*********
A & FAYE BED: Chavez Files ADA Suit in E.D. New York
----------------------------------------------------
A class action lawsuit has been filed against A & Faye Bed And
Breakfast Inc. The case is styled as Kenneth T. Chavez, on behalf
of himself and all others similarly situated v. A & Faye Bed And
Breakfast Inc., Case No. 1:21-cv-01528 (E.D.N.Y., March 23, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
A & Faye Bed And Breakfast -- http://www.aandfayebb.com/-- is
located in Brooklyn, New York and is part of the Bed & Breakfast
Inns Industry.[BN]
The Plaintiff is represented by:
Mitchell Segal, Esq.
LAW OFFICES OF MITCHELL SEGAL P.C.
1010 Northern Boulevard, Suite 208
Great Neck, NY 11021
Phone: (516) 415-0100
Fax: (516) 706-6631
Email: msegal@segallegal.com
ADDUS HEALTHCARE: Bid to Certify Workers Class in Moore Suit Denied
-------------------------------------------------------------------
In the case, MARY MOORE, Plaintiff v. ADDUS HEALTHCARE, INC., et
al., Defendants, Case No. 19-cv-01519-HSG (N.D. Cal.), Judge
Haywood S. Gilliam, Jr., of the U.S. District Court for the
Northern District of California denies the Named Plaintiff's motion
for class certification.
On July 11, 2017, Plaintiff Moore filed the putative wage and hour
class action against Addus Healthcare in Alameda Superior Court.
On March 21, 2019, an amended complaint was filed, adding
Alexandria Encinias as a Plaintiff and Addus HomeCare, Inc. as a
Defendant. The Defendants removed the action to federal court
under the Class Action Fairness Act ("CAFA"), 28 U.S.C. Section
1332(d). On Aug. 7, 2019, the Court denied the Plaintiff's motion
to remand.
The operative complaint alleged that Moore and Encinias worked for
Addus in California between approximately July 2011 and May 2014
and approximately July 2016 and September 2017, respectively, as
hourly-paid, non-exempt employees. Addus provides home care
services for individuals that need assistance in caring for
themselves.
During the class period, Addus has operated 10 branch offices in
California. It employs direct care workers ("home care aides" or
"caregivers") who provide personal care services, such as grooming,
bathing, meal preparation, and other tasks clients are unable to
perform by themselves, in the clients' homes. Caregivers are
assigned to an Addus branch office and service clients associated
with that office. Addus also employs administrative employees who
work in the branch offices. Administrative positions that are
hourly-paid include service coordinators, office assistants, and
payroll coordinators. Service coordinators assist in a variety of
areas, such as processing payroll, scheduling caregivers, covering
the front desk, and training caregivers. Office assistants may
assist in filing paperwork and answering phone calls, and payroll
coordinators assist in preparing and processing payroll.
Moore and Encinias originally alleged 10 causes of action on behalf
of themselves and the putative class for the Defendants' alleged
failures to (1) pay overtime, (2) provide meal periods, (3) provide
rest periods, (4) pay minimum wages, (5) pay timely wages upon
termination, (6) pay timely wages during employment, (7) provide
compliant wage statements, (8) keep complete or accurate payroll
records, (9) reimburse necessary business expenses, and (10)
generally conduct lawful business practices under the Unfair
Competition Law ("UCL"), Bus. & Prof. Code Sections 17200.
On Jan. 10, 2020, the Court dismissed Plaintiff Encinias for
failure to prosecute.
Plaintiff Moore now moves for class certification. She moves to
certify a class of "All current and former hourly-paid or
non-exempt individuals employed by any of the Defendants within the
State of California at any time during the period from July 11,
2013 to final judgment."
Specifically, Plaintiff Moore seeks class certification for the
following claims: (1) failure to provide meal breaks, in violation
of Labor Code Sections 226.7, 512; (2) failure to provide rest
breaks, in violation of Labor Code Section 226.7; (3) failure to
pay wages (minimum and overtime), in violation of Labor Code
Sections 510, 1194, 1197; (4) failure to reimburse business related
expenses, in violation of Labor Code Section 2802; (5) failure to
provide accurate wage statements, in violation of Labor Code
Section 226; (6) failure to pay all wages upon termination, in
violation of Labor Code Section 226;1 and (7) violation of
California's Unfair Competition Law, Cal. Bus. & Prof. Code
Sections 17200 et seq. ("UCL") based on unfair acts and practices
detailed in the previous claims.
Addus opposes the Plaintiff's motion on several grounds. First,
Addus argues that the Plaintiff cannot bring her claims under the
Labor Code and Wage Order because those causes of action were
dismissed with Plaintiff Encinas. Second, it claims that because
the Plaintiff brought the same meal break claim before the
California Labor Commissioner in 2014, she is collaterally estopped
from bringing the claim in the case, and relatedly is barred from
bringing a claim for failure to pay wages for "off-the-clock" work
by the doctrine of res judicata. Third, Addus contends that the
Plaintiff cannot represent direct care workers because she cannot
show typicality, adequacy, or predominance. Finally, it argues
that the Court should deny class certification even as to a class
of administrative employees because common issues do not
predominate.
Labor Code and Wage Order Claims
On Jan. 10, 2020, the Court granted the Plaintiffs' counsel's
motion to withdraw as attorney for Plaintiff Encinias and dismissed
Plaintiff Encinias for failure to prosecute. In the Order, the
Court explained that "because Plaintiff Encinias alone brought the
first through ninth causes of action in the Amended Complaint, the
Court dismisses without prejudice those causes of action." The
Plaintiffs' counsel was further notified that once she "has found a
proper replacement, she may file a motion for leave to amend the
pleadings."
The Plaintiffs' counsel did not seek leave to amend the pleadings
in order to allege that Plaintiff Moore brings the same California
Labor Code and Wage Order violations, and thus only the UCL cause
of action remains. Accordingly, Judge Gilliam agrees with Addus
that the Plaintiff cannot bring claims under the California Labor
Code or Wage Order. The only claim that remains is the Plaintiff's
UCL claim for unfair labor practices.
Collateral Estoppel and Res Judicata
Addus argues that the Plaintiff is collaterally estopped from
bringing her meal break claim because the California Labor
Commissioner determined that exact issue in Addus's favor in 2014.
The California Supreme Court has held that "collateral estoppel may
be applied to decisions made by administrative agencies" where "an
administrative agency is acting in a judicial capacity and resolves
disputed issues of fact properly before it which the parties have
had an adequate opportunity to litigate." A court should also
consider whether there are "particular and special circumstances"
presented by the "unique statutory scheme" at issue that permit
application of the doctrine. Addus, as the party asserting
collateral estoppel, bears the burden of establishing that these
requirements are met.
Judge Gilliam finds that Addus falls well short of its burden.
Addus provides no analysis of whether the parties had an adequate
opportunity to litigate before the Labor Commissioner regarding the
meal break claim. Instead, the Labor Code specifically notes that
the administrative hearing procedure for resolving wage claims is
"informal." In summary, the Judge finds that Addus has not met its
burden to show that collateral estoppel bars the Plaintiff's
derivative meal break claim.
Class Certification Requirements as to Plaintiff's Proposed Class
Federal Rule of Civil Procedure 23(a) requires a showing of
numerosity, commonality, typicality, and adequacy of representation
to maintain a class action. Addus argues that Plaintiff cannot
represent direct care workers because she cannot satisfy the
typicality and adequacy requirements, or meet the predominance
requirement under Rule 23(b).
Judge Gilliam finds that (i) the Plaintiff has sufficiently
established numerosity because joinder of approximately 2,516
putative class members would be impracticable; (ii) the Plaintiff's
claims share various common questions of law that satisfy the
commonality requirement; (iii) the Plaintiff does not show
typicality in light of a unique defense available against her; and
(iv) the Plaintiff has not sufficiently established that she can
fairly and adequately represent the interests of the proposed
class. Having reviewed the Rule 23(a) requirements, the Judge
finds that the Plaintiff has not shown typicality or adequacy as to
the proposed class.
Though the Plaintiff fails to show that certification of the
proposed class is warranted, the Judge considers whether she has
done so as to a narrowed class consisting of administrative
workers. Addus argues that the Plaintiff cannot establish
predominance as to such a class.
The Judge finds that (i) the Plaintiff has sufficiently established
commonality because her claims share the common questions of law
discussed; (ii) the Plaintiff fails to show that her experiences as
a service coordinator were typical of those of other types of
administrative workers; (iii) the Plaintiff satisfies the adequacy
requirement as to a class of administrative workers; and (iv)
individual questions predominate as to the meal-period, rest-period
and off-the-clock claims.
Judge Gilliam concludes that the Plaintiff does not establish
typicality or predominance for a narrowed class of administrative
workers. And he finds that the Plaintiff does not establish
predominance for even a class limited to service coordinators for
the same reasons he detailed.
For all these reasons, Judge Gilliam denies the motion for class
certification. He sets a telephonic case management conference for
April 6, 2021, at 2:00 p.m. The Judge directs the parties to meet
and confer and submit a joint case management statement by March
30, 2021. All counsel will use the following dial-in information
to access the call: Dial-In: 888-808-6929; Passcode: 6064255. For
call clarity, parties will not use speaker phone or earpieces for
these calls, and where at all possible, parties will use
landlines.
A full-text copy of the Court's March 17, 2021 Order is available
at https://tinyurl.com/2nnbw3yj from Leagle.com.
ALKERMES PUBLIC: New York Court Dismisses Putative Class Action
---------------------------------------------------------------
Shearman & Sterling LLP, in an article for Mondaq, reports that on
February 26, 2021, Judge LaShann DeArcy Hall, of the United States
District Court for the Eastern District of New York, dismissed with
prejudice a putative class action asserting claims under the
Securities Exchange Act of 1934 against a pharmaceutical company
and certain of its officers. In re Alkermes Public Ltd. Co. Sec.
Litig., No. 18-CV-7410 (LDH) (RML), slip op. (E.D.N.Y. Feb 26,
2021). Plaintiff alleged defendants made misstatements concerning
clinical trials for a drug that ultimately did not secure FDA
approval. The Court held that plaintiff failed to allege facts
giving rise to a strong inference of scienter and therefore
dismissed the complaint in its entirety.
Plaintiff generally alleged that the company had made optimistic
and misleading statements regarding the chances of FDA approval
without disclosing that the FDA had allegedly indicated that the
trials could not be successful. Id. at 9–10. In particular,
plaintiff alleged that the FDA, in a November 2018 briefing
document, told the company that the testing method ultimately used
"could not be used for proof of efficacy" and that "with certainty"
"the design of [the company's] clinical trials would necessarily
prevent approval." Id. at 14.
While noting that "[p]laintiff's claim is ripe for dismissal on a
number of grounds," the Court focused its opinion primarily on the
scienter requirement, holding that it was unnecessary to address
other issues because the failure to adequately allege scienter
warranted dismissal. Id. at 11. In particular, the Court noted that
plaintiff relied exclusively on a "blatant mischaracterization" of
the FDA's November 2018 briefing document. For example, while
plaintiff argued that the FDA told the company that the testing
method in question "could not be used for proof of efficacy," in
fact the FDA expressly stated that it "voiced no objection" and
merely encouraged the company to provide a detailed statistical
analysis plan and to seek further feedback. Id. at 14. Moreover,
while plaintiff asserted that the company had been told "with
certainty, that the design of its clinical trials would necessarily
prevent approval," the Court referred to this characterization as
"pure fantasy" and noted that no such language appeared in the
FDA's November 2018 briefing document. Id.
The Court further emphasized that in the context of allegations
regarding communications with the FDA about a drug candidate,
scienter is found where "management knows that certain facts will
necessarily prevent regulatory approval . . . and conceals those
facts from the investing public." Id. at 13. But, contrary to
plaintiff's assertions, the Court held that the FDA expressly
"voiced no objection" to the company's testing method but merely
encouraged the company to "provide a detailed statistical analysis
plan and seek feedback prior to initiating the trial if they
intended to use the study to support an efficacy claim." Id.
The Court further emphasized that the documents incorporated into
the complaint showed that there was an "ongoing dialogue" and a
"collective expectation that the process was an iterative one." Id.
at 14–15. Thus, the Court held that plaintiff had not alleged any
facts showing that the FDA had conveyed that "approval of [the drug
candidate] was not possible or even unlikely." Id. The Court
accordingly concluded that the allegations failed to support a
strong inference of scienter. Id. at 16. [GN]
ALPHA BETA: Angeles Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Alpha Beta Unlimited,
Inc. The case is styled as Jenisa Angeles, on behalf of herself and
all others similarly situated v. Alpha Beta Unlimited, Inc., Case
No. 1:21-cv-02476 (S.D.N.Y., March 22, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Alpha Beta Unlimited (ABU) -- https://abugames.com/ -- has been
selling Collectable Cards on-line for over eight years.[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
AMERICAN MERCHANDISING: Share Sues Over Failure to Pay Overtime
---------------------------------------------------------------
DEBBIE SHARE, individually and on behalf of all persons similarly
situated, Plaintiff v. AMERICAN MERCHANDISING SPECIALISTS, INC.,
Defendant, Case No. 1:21-cv-04839 (D.N.J., March 11, 2021) is a
collective and class action complaint brought by the Plaintiff
against the Defendant seeking for all available remedies under the
Fair Labor Standards Act and the New Jersey Wage and Hour Law.
The Plaintiff has worked for the Defendant from approximately
October 2018 to June 2020 and from approximately August 2020 to
January 2021 as a Field Marketing Representative to perform brand
advocacy and merchandising services primarily for the Defendant's
manufacturer client, Samsung Home Appliances, at retailers such as
Home Depot, Lowes, and Best Buy.
The Plaintiff claims that the Defendant misclassified her and other
similarly situated employees as exempt from overtime. Although the
Defendant required them to regularly work in excess of 40 hours in
a workweek, the Defendant paid them on a salary basis without any
overtime compensation. The Defendant willfully failed to pay them
one and one-half times their regular rate of pay for all hours they
worked in excess of 40 per week, the Plaintiff adds.
American Merchandising Specialists, Inc. is a retail support
company that provides services to promote and increase the sales of
its retail customers' products nationwide. [BN]
The Plaintiff is represented by:
Shanon J. Carson, Esq.
Camille Fundora Rodriguez, Esq.
Alexandra K. Piazza, Esq.
BERGER MONTAGUE PC
1818 Market Street, Suite 3600
Philadelphia, PA 19103
Tel: (215) 875-3000
Fax: (215) 875-4604
E-mail: scarson@bm.net
crodriguez@bm.net
apiazza@bm.net
ARK POTOMAC: Fails to Pay Servers' Minimum & OT Wages, Felts Says
-----------------------------------------------------------------
REBECCA FELTS, Plaintiff v. ARK POTOMAC d/b/a SEQUOIA RESTAURANT,
Defendant, Case No. 1:21-cv-00656 (D. Columbia, March 11, 2021)
brings this complaint as a collective action on behalf of herself
and all other similarly situated against the Defendant for its
alleged willful violations of the Fair Labor Standards Act and the
District of Columbia Minimum Wage Act.
The Plaintiff has worked for the Defendant from July 1, 2017 until
October 14, 2019 as a server at the Defendant's Sequoia
Restaurant.
The Plaintiff alleges that the Defendant has consistently denied
her and other similarly situated servers the minimum wage and
overtime compensation. Specifically, the Defendant required them to
purchase items or tools such a pens and wand lighters to be used in
performing their job; improperly applied the tip credit to them
when they were not working as servers and when they perform duties
for which they cannot earn tips; and failed to pay them one and
one-half times the applicable minimum wage for hours worked over 40
in a workweek.
Ark Potomac d/b/a Sequoia Restaurant owns and operates Sequoia
Restaurant in Washington, D.C. [BN]
The Plaintiff is represented by:
Molly A. Elkin, Esq.
Sarah M. Block, Esq.
McGILLIVARY STEELE ELKIN LLP
1101 Vermont Ave., NW Suite 1000
Washington, DC 20005
Tel: (202) 833-8855
Fax: (202) 452-1090
E-mail: mae@mselaborlaw.com
smb@mselaborlaw.com
BANK OF AMERICA: 2d Cir. Vacates Dismissal of Fund Liquidation Suit
-------------------------------------------------------------------
In the case, FUND LIQUIDATION HOLDINGS LLC, AS ASSIGNEE AND
SUCCESSOR-IN-INTEREST TO FRONTPOINT ASIAN EVENT DRIVEN FUND, L.P.,
ON BEHALF OF ITSELF AND ALL OTHERS SIMILARLY SITUATED, SONTERRA
CAPITAL MASTER FUND, LTD., Plaintiffs-Appellants, FRONTPOINT ASIAN
EVENT DRIVEN FUND, LTD., FRONTPOINT ASIAN EVENT DRIVEN FUND, L.P.,
Plaintiffs v. BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A,
ROYAL BANK OF SCOTLAND PLC, THE ROYAL BANK OF SCOTLAND GROUP PLC,
RBS SECURITIES JAPAN LIMITED, UBS AG, UBS SECURITIES JAPAN CO.,
LTD., ING GROEP N.V., ING BANK N.V., BNP PARIBAS, S.A., BNP PARIBAS
NORTH AMERICA, INC., BNP PARIBAS SECURITIES CORP., BNP PARIBAS
PRIME BROKERAGE, INC., OVERSEA-CHINESE BANKING CORPORATION LTD.,
BARCLAYS PLC, BARCLAYS BANK PLC, BARCLAYS CAPITAL INC., DEUTSCHE
BANK AG, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, CREDIT
AGRICOLE S.A., CREDIT SUISSE GROUP AG, CREDIT SUISSE AG, STANDARD
CHARTERED BANK, STANDARD CHARTERED PLC, DBS BANK LTD., DBS GROUP
HOLDINGS LTD., DBS VICKERS SECURITIES (USA) INC., UNITED OVERSEAS
BANK LIMITED, AUSTRALIA AND NEW ZEALAND BANKING GROUP, LTD., BANK
OF TOKYO-MITSUBISHI UFJ, LTD., THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED, HSBC BANK USA, N.A., HSBC HOLDINGS PLC, HSBC
NORTH AMERICA HOLDINGS INC., HSBC USA INC., MACQUARIE BANK LTD.,
MACQUARIE GROUP LTD., COMMERZBANK AG, ING CAPITAL MARKETS LLC,
CREDIT SUISSE INTERNATIONAL, ANZ SECURITIES, INC., UOB GLOBAL
CAPITAL, LLC, Defendants-Appellees, CITIBANK, N.A., CITIGROUP INC.,
JPMORGAN CHASE & CO., JP MORGAN CHASE BANK, N.A., JOHN DOES, NOS.
1-50, Defendants, Case No. 19-2719-cv (2d Cir.), the U.S. Court of
Appeals for the Second Circuit vacates the district court's
judgment dismissing the case with prejudice for lack of
subject-matter jurisdiction.
In 2016, two Cayman Islands investment funds filed a class action
complaint against numerous banks, alleging that the Banks had
conspired to manipulate certain Singapore-based benchmark interest
rates. It was not until a year later that the Banks discovered
that the two Plaintiff funds had been dissolved years earlier, and
that the case was actually being prosecuted by a separate entity,
Fund Liquidation Holdings LLC, which asserts that it was assigned
the dissolved entities' claims.
The global financial system relies on a series of floating
benchmark interest rates, many of which reflect the average cost
that a bank incurs when borrowing money from one of its peers. The
most well-known example is the London Interbank Offered Rate, more
commonly referred to as "LIBOR." In recent years, many of the
world's largest financial institutions have been accused of
manipulating several of these benchmarks in their favor. The
implications of such manipulation can be staggering as these rates
are used as reference points in countless financial instruments
across the world and affect transactions collectively worth
trillions of dollars.
The case concerns an alleged conspiracy by the Banks and others to
manipulate two such benchmark rates: the Singapore Interbank
Offered Rate ("SIBOR") and the Singapore Swap Offered Rate ("SOR").
The two rates are calculated by a trade group, the Association of
Banks in Singapore, which is composed of various banks (including
some of the Defendant banks in the case). Each day, an agent of
that association calculates the two rates based, in part, on
interest rate quotes submitted by a panel of banks that, again,
include several of the Defendants in the case.
Between 2007 and 2011, the Banks allegedly worked together to
manipulate those two benchmark rates so that they would shift in
directions that favored the Banks' financial positions. The
alleged effect of the Banks' conspiratorial price-fixing was to
necessarily reduce the amount of interest paid to all holders of
SIBOR- and SOR-based financial instruments. Eventually, this
conspiracy was uncovered in 2013 through an investigation
spearheaded by the Monetary Authority of Singapore.
Three years later, on July 5, 2016, an initial class action
complaint was filed against the Banks (and others) in the names of
FrontPoint Asian Event Driven Fund, L.P. and Sonterra Capital
Master Fund, Ltd. ("Dissolved Funds"), two Cayman Islands
investment funds that claimed to have held financial instruments
that relied on the manipulated benchmark rates.
Two critical pieces of information were omitted from this initial
complaint. First, the complaint failed to disclose that the
Dissolved Funds had apparently assigned (or, at least, attempted to
assign) the rights to their claims to Fund Liquidation, and that it
was really Fund Liquidation that was pulling the strings behind the
scenes. Second, and perhaps more importantly, the pleadings failed
to reflect that the Dissolved Funds were no longer in existence
when the case was initiated -- FrontPoint had been dissolved nearly
five years earlier, in November 2011, and Sonterra had been
dissolved shortly thereafter, in December 2012.
On Oct. 31, 2016, a first amended complaint was filed, which added
additional claims under the Sherman Act, the Racketeer Influenced
and Corrupt Organizations Act ("RICO"), and common law. As before,
this complaint made no mention of Fund Liquidation and referred to
the Dissolved Funds in the present tense as if they were still in
existence.
About one year later, the district court dismissed most of the
asserted claims, finding that the court lacked personal
jurisdiction over the subset of Defendant banks that were foreign
entities, that Sonterra failed to demonstrate that it would be an
efficient enforcer of the antitrust laws, and that the plaintiffs
had failed to plead plausible antitrust, RICO, or common law
claims. The district court refused, however, to dismiss
FrontPoint's antitrust claims against the Defendants that were
members of the Panel, since those defendants submitted the
allegedly fraudulent interest rate data directly to the Association
of Banks in Singapore. In addition, the district court permitted
the Plaintiffs to file an amended pleading to correct the
shortcomings in the first amended complaint.
So, on Sept. 18, 2017, a second amended complaint was filed. It
was only in this pleading that, for the first time, the Plaintiffs
clarified that the Dissolved Funds were no longer in operation.
The Banks responded by filing a new motion to dismiss, which added
a fresh set of grounds for dismissal, including the contention that
the Dissolved Funds lacked capacity to sue in light of their
dissolution. Around this time, some of the Defendants (who have
not appealed) decided to settle with Fund Liquidation. Those
parties eventually executed binding term sheets and notified the
district court.
On Oct. 4, 2018, within weeks of those agreements being signed, the
district court dismissed with prejudice the RICO claims and the
antitrust claims asserted against certain defendants, but again
permitted the Plaintiffs to proceed on the common law claims and
antitrust claims brought against those Defendants who were members
of the Panel.
The district court also concluded that Fund Liquidation had
received a full assignment of rights from FrontPoint and, as a
result, granted leave for Fund Liquidation to submit a Third
Amended Complaint under Rule 17(a)(3) so that it could join the
action in its own name. While the district court found that
Sonterra had also assigned its claims to Fund Liquidation, it
dismissed Sonterra's remaining claims (all of which were antitrust
claims) with prejudice, reasoning that, because Sonterra had not
transacted directly with any of the Defendants, it was not an
efficient enforcer of the antitrust laws.
A few weeks later, on Oct. 26, 2018, Fund Liquidation filed a third
amended complaint, naming as Plaintiff "Fund Liquidation Holdings
LLC, as assignee and successor-in-interest to FrontPoint." The
substantive allegations in this complaint were effectively
identical to those in the second amended complaint, with the
exception that Fund Liquidation added additional facts concerning
the pre-suit assignment it received from FrontPoint.
The following month, the Banks moved to dismiss the new complaint,
arguing, among other things, that Fund Liquidation could not
substitute into the action under Rule 17(a)(3) because the case was
a legal nullity from the outset and that, since the statute of
limitations had now lapsed, Fund Liquidation's new complaint was
untimely. The Banks also argued that FrontPoint did not adequately
assign its antitrust claims to Fund Liquidation.
While Fund Liquidation contested both arguments on the merits, it
indicated that it would seek to moot the issues by filing a
proposed fourth amended complaint. In that proposed complaint,
Fund Liquidation sought to join two new class representatives, Moon
Capital Partners Master Fund, Ltd. and Moon Capital Master Fund,
Ltd., which had transacted directly with the Banks and claimed to
have been injured by the same scheme. According to Fund
Liquidation, the Moon Funds would be ideal class representatives as
they were not open to the same arguments concerning assignment and
capacity that had thus far plagued Fund Liquidation. Separately,
Fund Liquidation also sought preliminary approval of the settlement
agreements that it had signed with some of the defendants.
On July 26, 2019, the district court adopted the Banks' nullity
argument and dismissed the third amended complaint with prejudice
on the grounds that the court had lacked subject-matter
jurisdiction over the action from its outset, something, the
district court concluded, that could not be cured. According to
the district court, because the Dissolved Funds lacked capacity to
sue, there was no real 'case or controversy' before the court and,
consequently, no subject-matter jurisdiction." For similar
reasons, the court refused to approve the two settlement agreements
that Fund Liquidation had signed with several of the defendants.
The district court also walked back its prior determination and
concluded that FrontPoint had not effectively assigned its claims
to Fund Liquidation, meaning that even if Fund Liquidation could
join the case through Rule 17, it would lack standing to assert
FrontPoint's claims. Lastly, the district court noted that even if
it did possess jurisdiction over the case, the Moon Funds could not
be named as class representatives as their claims were not subject
to equitable tolling and so were untimely.
The appeal followed.
The case requires the Second Circuit to engage in a two-step
inquiry. First, it must determine whether the Dissolved Funds had
Article III standing when the case was initiated in their names.
If so, then that would seem to end the matter in Fund Liquidation's
favor. But if the Dissolved Funds lacked standing at that time, it
must decide whether Fund Liquidation can nevertheless substitute
into the action in their place.
The Banks argue that the Dissolved Funds lacked standing when the
original complaint was filed because, by that time, the Dissolved
Funds had already (i) "disavowed any interest" in the case, having
assigned their claims to Fund Liquidation, and (ii) been dissolved
under Cayman Islands law and so had no legal existence.
The Second Circuit says there is little merit to the Banks' initial
argument that the Dissolved Funds' pre-filing assignment of their
claims stripped the Dissolved Funds of Article III standing. As
several of its sister circuits have explained, there is a
distinction between having standing to pursue a claim and being a
real party in interest with respect to that claim, only the latter
of which is implicated by an assignment. It concludes that the
Dissolved Funds' pre-suit assignment of their claims does not pose
a constitutional roadblock after Sprint. So that leaves only their
pre-suit dissolution.
In addition, in a case like the present one, federal law sets the
ground rule that a plaintiff corporation or partnership must have
legal existenceto have constitutional standing. Whether a
particular corporation or partnership satisfies that requirement,
however, turns on an examination of state law. And in the case,
Cayman Islands law is clear: The Dissolved Funds had no legal
existence when the complaint was filed. As a result, the Dissolved
Funds lacked Article III standing when the case was initiated in
their names. The next question, then, is what to make of that
fact.
The Second Circuit holds that Article III is satisfied so long as a
party with standing to prosecute the specific claim in question
exists at the time the pleading is filed. If that party (the real
party in interest) is not named in the complaint, then it must
ratify, join, or be substituted into the action within a reasonable
time. Only if the real party in interest either fails to
materialize or lacks standing itself should the case be dismissed
for want of subject-matter jurisdiction.
Admittedly, this is not a view adopted by many courts. The far
more common view is the so-called "nullity doctrine" exemplified by
Zurich Insurance Co. v. Logitrans, Inc., 297 F.3d 528 (6th Cir.
2002), which says that a case initiated in the name of a plaintiff
that lacks standing is an incurable nullity. But, the Second
Circuit concludes that neither Article III nor its Court's past
precedent requires it to adopt this doctrine. And because "the
concerns animating Article III standing are absent" where a real
party in interest exists and is willing to join an action, citing
Cortlandt St. Recovery Corp. v. Hellas Telecomms. S.à.r.l., 790
F.3d 411, 427 (2d Cir. 2015) (Sack, J., concurring), the Second
Circuit concludes that Article III is satisfied in the case.
Having concluded that the Dissolved Funds' lack of standing did not
render the action an incurable nullity, the Second Circuit agrees
with Fund Liquidation that the case should be remanded to the
district court for further proceedings. Notably, this does not
require it to resolve whether Fund Liquidation received a valid
assignment from FrontPoint because the district court already
concluded that Fund Liquidation received such an assignment from
Sonterra. And although Sonterra's claims were separately dismissed
based on the fund not being an efficient enforcer of antitrust
laws, that is a non-jurisdictional dismissal and so a valid case or
controversy still exists.
On remand, then, the district court should reconsider two issues in
light of its opinion. First, now that its jurisdiction over the
case is clear, the district court should revisit whether to approve
the settlement agreements signed by several of the Defendants.
Second, the district court should reconsider Fund Liquidation's
motion to file its proposed fourth amended complaint, which would
add the Moon Funds as new representative plaintiffs.
Accordingly, so long as the amendment to add the Moon Funds as
class representatives satisfies the requirements of Federal Rule of
Civil Procedure 15(c)(1)(B), and so long as the proposed fourth
amended complaint otherwise plausibly states a claim on which
relief can be granted, the district court should grant Fund
Liquidation's motion to amend.
For the foregoing reasons, Judge Richard J. Sullivan, writing for
the Second Circuit, vacates the judgment of the district court and
remands the case for further proceedings. Should any future appeal
ensue related to whether Fund Liquidation may file its proposed
fourth amended complaint, or whether that fourth amended complaint
states a claim on which relief can be granted, any party may
restore our jurisdiction pursuant to the procedure outlined in
United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), in which
event the appeal will be referred to this panel.
A full-text copy of the Court's March 17, 2021 Order is available
at https://tinyurl.com/t2uwx2e9 from Leagle.com.
ERIC F. CITRON -- ecitron@goldsteinrussell.com -- (Vincent
Briganti, Margaret MacLean, Lowey Dannenberg, P.C., White Plains,
NY, on the brief), Goldstein & Russell, P.C., in Bethesda,
Maryland, for Plaintiffs-Appellants Fund Liquidation Holdings LLC
and Sonterra Capital Master Fund, Ltd.
JOEL KURTZBERG -- jkurtzberg@cahill.com -- (Herbert S. Washer, Elai
Katz, Jason M. Hall, Lauren Perlgut, Adam S. Mintz, on the brief),
Cahill Gordon & Reindel LLP, in New York City, for
Defendants-Appellees Credit Suisse Group AG, Credit Suisse AG, and
Credit Suisse International.
Arthur J. Burke -- arthur.burke@davispolk.com -- Paul S. Mishkin,
Adam G. Mehes, Davis Polk & Wardwell LLP, New York, NY, for
Defendants-Appellees Bank of America Corporation and Bank of
America, N.A. Penny Shane, Corey Omer , Sullivan & Cromwell LLP, in
New York City, for Defendants-Appellees Australia and New Zealand
Banking Group Limited and ANZ Securities, Inc.
Christopher M. Viapiano -- viapianoc@sullcrom.com -- Elizabeth A.
Cassady, Sullivan & Cromwell LLP, in Washington, D.C., for
Defendant-Appellee The Bank of Tokyo-Mitsubishi UFJ, Ltd., n/k/a
MUFG Bank, Ltd.
Jonathan D. Schiller -- jschiller@bsfllp.com -- Christopher
Emmanuel Duffy, Leigh M. Nathanson, Boies Schiller Flexner LLP, in
New York City, for Defendants-Appellees Barclays PLC, Barclays Bank
PLC, and Barclays Capital Inc.
Jayant W. Tambe -- jtambe@jonesday.com -- Stephen J. Obie, Kelly A.
Carrero, Jones Day, in New York City, for Defendants-Appellees BNP
Paribas, S.A., BNP Paribas North America, Inc., BNP Paribas
Securities Corp., and BNP Paribas Prime Brokerage, Inc.
David R. Gelfand -- dgelfand@milbank.com -- Mark D. Villaverde,
Milbank LLP, in New York City, for Defendant-Appellee Commerzbank
AG.
Andrew Hammon, Kimberly Anne Havlin, White & Case LLP, New York,
NY; Darryl S. Lew, White & Case LLP, Washington, DC, for
Defendants-Appellees Credit Agricole Corporate and Investment Bank
and Credit Agricole S.A. Erica S. Weisgerber, Debevoise & Plimpton
LLP, in New York City, for Defendants-Appellees DBS Bank Ltd., DBS
Group Holdings Ltd., and DBS Vickers Securities (USA) Inc.
Aidan Synnott -- asynnott@paulweiss.com -- Hallie S. Goldblatt,
Paul, Weiss, Rifkind, Wharton & Garrison LLP, in New York City, for
Defendant-Appellee Deutsche Bank AG.
Christopher M. Paparella -- cpaparella@steptoe.com -- Steptoe &
Johnson LLP, in New York City, for Defendants-Appellees Macquarie
Bank Ltd. and Macquarie Group Ltd.
C. Fairley Spillman -- fspillman@akingump.com -- Pratik A. Shah,
Akin Gump Strauss Hauer & Feld LLP, in Washington, D.C., for
Defendant-Appellee Oversea-Chinese Banking Corporation Limited.
David S. Lesser -- DAVID.LESSER@WILMERHALE.COM -- Jamie S. Dycus,
Wilmer Cutler Pickering Hale and Dorr LLP, in New York City, for
Defendants-Appellees The Royal Bank of Scotland plc, The Royal Bank
of Scotland Group plc, and RBS Securities Japan Limited.
Marc J. Gottridge -- marc.gottridge@hoganlovells.com -- Lisa J.
Fried, Benjamin A. Fleming, Hogan Lovells US LLP, in New York City,
for Defendants-Appellees Standard Chartered Bank and Standard
Chartered plc.
Dale C. Christensen, Jr. -- christensen@sewkis.com -- Noah Czarny,
Seward & Kissel LLP, in New York City, for Defendants-Appellees
United Overseas Bank Limited and UOB Global Capital, LLC.
Nowell D. Bamberger -- nbamberger@cgsh.com -- Cleary Gottlieb Steen
& Hamilton LLP, Washington, DC; Charity E. Lee, Cleary Gottlieb
Steen & Hamilton LLP, in New York City, for Defendants-Appellees
The Hongkong and Shanghai Banking Corporation Limited, HSBC Bank
USA, N.A., HSBC Holdings plc, HSBC North America Holdings Inc., and
HSBC USA Inc.
Mark A. Kirsch -- mkirsch@gibsondunn.com - Eric J. Stock, Jefferson
E. Bell, Gibson, Dunn & Crutcher LLP, in New York City, for
Defendants-Appellees UBS AG and UBS Securities Japan Co., Ltd.
Amanda F. Davidoff -- davidoffa@sullcrom.com -- Sullivan & Cromwell
LLP, in Washington, D.C., for Defendants-Appellees ING Groep N.V.,
ING Bank N.V., and ING Capital Markets LLC.
BARNABY LTD: Jaquez Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Barnaby, Ltd. The
case is styled as Ramon Jaquez, on behalf of himself and all others
similarly situated v. Barnaby, Ltd., Case No. 1:21-cv-02498
(S.D.N.Y., March 23, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Barnaby Ltd. doing business as Good Vibrations --
http://www.goodvibes.com/-- is located in Concord, California and
is part of the Consumer Electronics & Appliances Stores
Industry..[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
BARRI & ASSOCIATES: Gardner Seeks FLSA Conditional Class Status
---------------------------------------------------------------
In the class action lawsuit captioned as Aaron Gardner,
Individually and on Behalf of All Others Similarly Situated, v.
G.D. Barri & Associates, Inc., an Arizona Corporation, Case No.
2:20-cv-01518-MTL (D. Ariz.), the Plaintiff asks the Court to enter
an order:
1. conditionally certifying the following class:
"All employees of GD Barri who were paid straight time for
overtime and staffed to power plants or similar facilities in
the last three years (Putative Class Members);" and
2. directing GD Barri, within 10 days of the Court's order, to
provide Gardner's counsel with a list of all employees
staffed to power plants or similar facilities who were paid
straight time for overtime at any time during the three years
prior to the filing of this action. This list should include
each individual's (1) name, (2) job title(s), (3) dates of
work, (4) last known address and telephone number, and (5)
last known email address. Gardner seeks a 60-day notice
period, with notice to be distributed by Gardner's counsel
via U.S. Mail, email, and text with an identical notice sent
via the same methods 30) ays before the end of the
notice period.
The PlaintiffGardner filed this collective action lawsuit pursuant
to the Fair Labor Standards Act (FLSA) to recover unpaid overtime
wages owed to current and former employees of Defendant GD Barri
who were paid the same hourly rate for all hours worked, including
those in excess of 40 in a workweek and were staffed to power
plants or similar facilities.
G.D. Barri & Associates, Inc. provides professional staffing and
personnel services.
A copy of the Plaintiff's motion to certify class dated March 11,
2020 is available from PacerMonitor.com at https://bit.ly/3d8UzdT
at no extra charge.[CC]
The Plaintiff is represented by:
Samuel R. Randall, Esq.
RANDALL LAW PLLC
4742 N 24th Street, Suite 300
Phoenix, AZ 85016
Telephone: (602) 328-0262
Facsimile: (602) 926-1479
E-mail: srandall@randallslaw.com
- and -
Michael A. Josephson, Esq.
Andrew W. Dunlap, Esq.
Richard M. Schreiber, Esq.
JOSEPHSON DUNLAP, LLP
11 Greenway Plaza, Suite 3050
Houston, TX 77046
Telephone: (713) 352-1100
Facsimile: (713) 352-3300
E-mail: rschreiber@mybackwages.com
- and -
Richard ("Rex") J. Burch, Esq.
BRUCKNER BURCH PLLC
11 Greenway Plaza, Ste. 1325
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
BOB'S DISCOUNT: Espinal et al. Seek to Certify Class
----------------------------------------------------
In the class action lawsuit captioned as OMAR A. ESPINAL, FREDY O.
CARBAJAL, ARLEN Y. MARTINEZ, OSCAR RENE CALDERON ROMERO and
WELLINGTON TORRES, On behalf of themselves and all other similarly
situated persons, v. BOB'S DISCOUNT FURNITURE, LLC, XPO LAST MILE,
INC., ABC CORPS. And JANE & JOHN DOES, Case No.
2:17-cv-02854-JMV-JB (D.N.J.), the Plaintiffs ask the Court to
enter an order:
1. certifying the action as a Federal Rule of Civil Procedure
23
class action pursuant to Rules 23(a) and (b)(3) on behalf of
the following class of similarly situated persons:
"All individuals that were based out of the Defendants'
Edison and Carteret, New Jersey, warehouses that performed
truck driving and/or helper functions for the Defendants from
April 26, 2015 through to January 2017 out of the Edison
Facility and from May 1, 2017 through to the present out of
the Carteret Facility, who did not have direct contracts with
either Defendant;
2. appointing their legal counsel as Class Counsel pursuant to
Rule 23(g);
3. appointing them as Class Representatives;
4. approving Court facilitated Notice of this Class Action to
all Class Members; and
5. approving the Production by Defendants of the names, last
known address, alternate addresses (if any), all known
telephone numbers, all known email addresses, social security
numbers, dates of birth and dates of employment of all Class
Members.
Bob's Discount Furniture is an American furniture store chain
headquartered in Manchester, Connecticut. XPO Last Mile provides
third-party logistics and last mile delivery services.
A copy of the Plaintiffs' motion to certify class dated March 12,
2020 is available from PacerMonitor.com at https://bit.ly/3d6qxaC
at no extra charge.[CC]
The Plaintiffs are represented by:
Ravi Sattiraju, Esq.
50 Millstone Road
Building 300, Suite 202
East Windsor, NJ 08520
Telephone: (609) 469-2110
Facsimile: (609) 228-5649
E-mail: rsattiraju@s-tlawfirm.com
BRIGHTHOUSE LIFE: Court Narrows Claims in Newton Class Suit
-----------------------------------------------------------
In the class action lawsuit captioned as RICHARD A. NEWTON, SR.,
Individually and on behalf of a Class of Individuals Similarly
Situated, v. BRIGHTHOUSE LIFE INSURANCE COMPANY, Case No.
1:20-cv-02001-AT (N.D. Ga.), the Hon. Judge Amy Totenberg entered
an order granting in part and denying in part the Defendant's
motion to dismiss as follows:
(1) The Plaintiff is directed to file an amended complaint
alleging sufficient facts establishing his citizenship,
rather than mere residence, necessary to support the Court's
jurisdiction pursuant to 28 U.S.C. section 1332;
(2) The Defendant's Motion to Dismiss Count I is granted. Count
I
is dismissed without prejudice. The Court grants plaintiff
leave to amend the complaint to restate the claim in Count
I;
(3) The Defendant's Motion to Dismiss Count II is denied;
(4) The Defendant's Motion to Dismiss Plaintiff's standalone
claim for injunctive relief in Count III is granted. The
Court grants plaintiff leave to amend his complaint to
recast his request for injunctive relief in the prayer for
relief. The Court denies the Defendant's Motion to Dismiss
the Plaintiff's claim for declaratory relief in Count III;
(5) The Defendant's Motion to Dismiss Counts IV and V is
denied;
(6) The Defendant's Motion to Dismiss Count VI is granted and
Count VI is dismissed without prejudice. The Court grants
plaintiff leave to amend the complaint to restate the claim
in Count VI;
(7) As Plaintiff has filed an impermissible shotgun pleading,
Plaintiff shall replead his complaint to specifically set
forth the factual allegations supporting each claim
individually in each separate count;
(8) The Plaintiff shall file the amended complaint within 14
days of this order. In addition, the Court directs the
parties to file their Joint Preliminary Report and Discovery
Plan within one week of the filing of the amended complaint
and to specifically address a proposed briefing schedule on
class certification.
This case arises from the alleged breaches of Defendant (and its
predecessors-in-interest) of provisions contained in its universal
life insurance policies.
Plaintiff Newton brings this diversity action against Defendant
Brighthouse to recover damages and equitable relief sustained as a
result of allegedly false representations regarding the cost of
insurance charges under his universal life insurance policy. The
complaint, brought on behalf of Newton and a potential class of
insureds, alleges breach of contract, fraud, violation of Georgia's
Racketeering Influenced and Corrupt Organizations Act (RICO), and
seeks punitive damages, attorney's fees, and declaratory and
injunctive relief.
A copy of the Court's order dated March 11, 2020 is available from
PacerMonitor.com at https://bit.ly/31jHicG at no extra charge.[CC]
CAPITAL EAGLE: Fails to Pay Proper Wages, Zewdu Suit Alleges
------------------------------------------------------------
DANIEL ZEWDU; and SURAFEL HAILEMICHAEL, individually and on behalf
of all others similarly situated, Plaintiffs v. RINDALA FAHMY;
CAPITAL EAGLE SECURITY, INC.; and DOES 1 through 50, Inclusive,
Defendants, Case No. 21STCV10201 (Cal. Super., Los Angeles Cty.,
Mar. 16, 2021) is an action against the Defendants for failure to
pay minimum wages, overtime compensation, authorize and permit meal
and rest periods, provide accurate wage statements, and reimburse
necessary business expenses.
The Plaintiffs were employed by the Defendants as security
officers.
CAPITAL EAGLE SECURITY, INC. provide security services to clients.
[BN]
The Plaintiff is represented by:
Richard L. Knickerbocker, Esq.
KNICKERBOCKER LAW FIRM
2425 Olympic Blvd, Suite 4000w
Santa Monica, CA 90404
Telephone: (310) 260-9060
Facsimile: (310) 260-9063
E-mail: knicklaw@gmail.com
CHICAGO, IL: Cross-Bids for Summary Judgment in CTU v. BOE Denied
-----------------------------------------------------------------
In the case, CHICAGO TEACHERS UNION, LOCAL 1, AMERICAN FEDERATION
OF TEACHERS, AFL-CIO; DONALD L. GARRETT JR.; ROBERT GREEN; and
VIVONELL BROWN, JR., individually and on behalf of all similarly
situated persons, Plaintiffs v. BOARD OF EDUCATION OF THE CITY OF
CHICAGO, a body politic and corporate, Defendant, Case Nos. 12 C
10311 & 15 C 8149 (N.D. Ill.), Judge Sara L. Ellis of the U.S.
District Court for the Northern District of Illinois, Eastern
Division, denies the parties' cross-motions for summary judgment.
The Board of Education of the City of Chicago serves as the
governing body of Chicago Public Schools ("CPS"). Between 2011 and
2014, it oversaw 600 elementary and high schools and over 400,000
students. CPS is divided into five collaborative areas
(North/Northwest, West, Southwest, South, and Far South) and
further into geographic networks. A network chief supervises the
schools in each network.
The Illinois School Code, 105 Ill. Comp. Stat. 5/34-8.3(d),
provides that schools may be subject to turnaround if they have
been on probation for at least one year and have failed to make
adequate progress in correcting deficiencies. In a turnaround, the
Board removes all staff, except engineers and lunchroom workers,
from their positions without a promise of another position within
CPS. The mass displacement does not take into account teacher
ratings or years of service. Displaced employees have to apply for
open positions if they want to continue working for the Board.
After a turnaround, the Board typically contracts with a third
party, such as the Academy for Urban School Leadership, to run the
school. Although the CPS CEO makes the decision as to which
schools to recommend for turnaround to the Board, the Board has the
final say. The Chicago Teachers Union, Local 1 ("CTU") plays no
decision-making role in the turnaround process.
CTU represents over 30,000 professional educators and CPS employees
and is the exclusive bargaining representative for all CPS teachers
and paraprofessionals ("PSRPs"). Pursuant to the 2007-2012
collective bargaining agreement between the Board and CTU, affected
tenured teachers after the 2012 turnarounds were placed in a
reassigned teacher pool where they continued to receive a full
salary and benefits for one school year (i.e. ten months). Under
the 2012-2015 collective bargaining agreement, affected tenured
teachers after the 2013 and 2014 turnarounds were placed in a
reassigned teacher pool and received full pay and benefits for five
months. Probationary "PSRPs were not placed in the reassigned
teacher pool and did not receive a salary or benefits after Sept.
1, 2012.
On Feb. 22, 2012, the Board announced that 10 CPS schools would be
"turned around" or "reconstituted," a process that involves
replacing all teachers and staff at those schools. Plaintiffs
Donald J. Garrett Jr., Robert Green, and Vivonell Brown, Jr., three
African American tenured teachers affected by the turnarounds, and
the Chicago Teachers Union, Local 1 ("CTU") filed suit against the
Board, alleging that the Board's decision to turn around these 10
schools was racially discriminatory.
The Plaintiffs bring four claims: (1) Title VII race discrimination
based on disparate treatment, (2) Title VII race discrimination
based on disparate impact, (3) Section 1981 race discrimination,
and (4) Section 1983 equal protection violation. The same
framework applies to the Title VII disparate treatment, Section
1981, and Section 1983 claims.
The Court certified the following class: "All African American
persons employed by the Board of Education of the City of Chicago
as a teacher or para-professional staff, as defined in the labor
agreement between the Chicago Teachers Union and the Board of
Education, in any school or attendance center subjected to
reconstitution, or 'turnaround,' in the 2012 calendar year."
After the Board turned around additional schools in 2013 and 2014,
CTU filed a related case against the Board, which the Court
consolidated with the class action challenging the 2012
turnarounds. The parties have now filed cross-motions for summary
judgment.
Judge Ellis streamlines her discussion to consider whether either
side has established that no material issues of fact exist that
would entitle them to judgment on the Plaintiffs' claims of (1)
disparate impact and (2) disparate treatment based on a policy or
practice with respect to the 2012, 2013, and 2014 turnarounds.
Before addressing the substantive merits of the Plaintiffs' claims,
Judge Ellis addresses the Board's argument that CTU did not
properly exhaust the Title VII claims based on the 2014
turnarounds. CTU acknowledges that it did not file an EEOC charge
with respect to the 2014 turnarounds but argues that its claims
concerning the 2014 turnarounds involve the same theory, conduct,
and parties as the 2013 turnarounds, for which it filed an EEOC
charge.
Although CTU could have easily avoided the question of whether it
properly exhausted the Title VII claims related to the 2014
turnarounds by filing an additional charge or seeking to supplement
the 2013 turnarounds charge, the Judge finds that, in this
instance, the Title VII claims related to the 2014 turnarounds fall
within the scope of the 2013 turnarounds charge.
Judge Ellis then examines the disparate impact claims that
encompass "practices that are not intended to discriminate but in
fact have a disproportionately adverse effect on minorities." To
succeed on a disparate impact claim, the Plaintiffs bear the burden
of showing that a particular employment practice causes a disparate
impact on the basis of race. Once they make this prima facie case,
the burden shifts to the Board to show the practice is "job
related" and "consistent with business necessity. If the Board
makes this showing, the burden shifts back to the Plaintiffs to
demonstrate that the Board had an available, equally valid, and
less discriminatory alternative that it refused to use.
Ultimately, the Judge finds that the parties' debate about the
proper variables for a regression analysis goes to the probative
value of that evidence. Because she cannot weigh the competing
analyses on summary judgment, whether the statistical evidence
sufficiently demonstrates causation remains a question for the
jury. Although this precludes the Court from granting summary
judgment in the Plaintiffs' favor, the Judge nonetheless proceeds
to the next step in considering whether to grant the Board's motion
on the disparate impact claim.
Given the conflicting evidence, the Judge holds that whether the
school-level turnaround decisions were job-related and consistent
with business necessity, remains a question for the trier of fact.
And because the Board bears the burden on this question, the Judge
cannot grant summary judgment for the Board on the Plaintiffs'
disparate impact claim and so need not consider the parties'
arguments as to the availability of equally valid and less
discriminatory alternatives.
Next, Judge Ellis considers the Plaintiffs' disparate treatment
claims under Title VII, Section 1981, and Seciton 1983. The
Plaintiffs seek to prove disparate treatment by showing that the
Board engaged in a pattern or practice of race discrimination when
conducting the turnarounds. To prevail on their pattern or
practice claim, the Plaintiffs must show that racial discrimination
was the Board's standard operating procedure -- the regular rather
than the unusual practice.
The Judge opines that the parties rely on the same statistical
evidence as they did for the disparate impact claim. She
incorporates her discussion of that statistical evidence here.
Because questions of fact exist as to whether the statistical
evidence supports a finding of discrimination, she holds that the
question remains one for the jury.
While the lack of evidence may call into question the Plaintiffs'
ability to prove their claims, the Judge cannot conclude that it
wholly negates the Plaintiffs' claims. As for what anecdotal
evidence the Plaintiffs presented, the Board presents
counterevidence showing that some of the schools selected for
turnaround did not have a majority of African American teachers and
PSRPs, that other schools not selected for turnaround had a greater
percentages of African American teachers and PSRPs than those
selected for turnaround, and that the Board rehired African
American and Caucasian CTU members affected by the 2012 turnarounds
at approximately the same rate.
Therefore, the Judge cannot grant summary judgment for either the
Plaintiffs or the Board on the disparate treatment claims.
In sum, because material questions of fact exist with respect to
all of the Plaintiffs' claims, Judge Ellis denies the parties'
cross-motions for summary judgment.
A full-text copy of the Court's March 17, 2021 Opinion & Order is
available at https://tinyurl.com/2tx7kdrw from Leagle.com.
CINCINNATI INSURANCE: Fifty First Files Suit in W.D. Pennsylvania
-----------------------------------------------------------------
A class action lawsuit has been filed against The Cincinnati
Insurance Company, et al. The case is styled as Fifty First Street,
LLC, individually and on behalf of all others similarly situated v.
The Cincinnati Insurance Company, The Cincinnati Casualty Company,
The Cincinnati Indemnity Company, Case No. 2:21-cv-00386-MRH (W.D.
Pa., March 23, 2021).
The nature of suit is stated as Insurance for Insurance Contract.
The Cincinnati Insurance Company -- https://www.cinfin.com/ --
sells auto, home, and business insurance.[BN]
The Plaintiff is represented by:
Gary F. Lynch, Esq.
CARLSON LYNCH, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Phone: (412) 322-9243
Email: glynch@carlsonlynch.com
DELTA AIRLINES: Fails to Pay Paid Leaves, Haley Suit Alleges
------------------------------------------------------------
PATRICK HALEY, individually and on behalf of all others similarly
situated, Plaintiff v. DELTA AIRLINES, INC., Case No.
1:21-cv-01076-TCB (N.D. Ga., Mar. 16, 2021) alleges that the
Defendant failed to pay the Plaintiff paid leave during the
Plaintiff's short term military leave in violation of the Uniformed
Services Employment and Reemployment Rights Act.
The Plaintiff was employed by the Defendant as cargo operations
service manager.
Delta Air Lines, Inc. provides scheduled air transportation for
passengers, freight, and mail over a network of routes. [BN]
The Plaintiff is represented by:
Stephen J. Anderson, Esq.
KENNETH S. NUGENT, PC.
4227 Pleasant Hill Road
Duluth, GA 30096
Telephone: (770) 820-0823
Facsimile: (770) 820-0723
E-mail: sandersonk@attorneykennugent.com
-and-
R. Joseph Barton, Esq.
BLOCK & LEVINGTON LLP
1735 20th Street NW
Washington, DC 20009
Telephone: (202) 734-7046
Facsimile: (617) 507-6020
E-mail: jbarton@blockleviton.com
-and-
Michael J. Scimone, Esq.
OUTTEN & GOLDEN LLP
685 Third Avenue, 25th Floor
New York, NY 10017
Telephone: (212) 245-1000
Facsimile: (646) 509-2055
E-mail: mscimone@outtengolden.com
-and-
Peter Romer-Friedman, Esq.
Gupta Wessler PLLC
1900 L Street, NW Suite 312
Washington, DC 20036
Telephone: (202) 888-1741
E-mail: peter@guptawessler.com
-and-
Thomas G. Jarrard, Esq.
Law Office of Thomas Jarrard PLLC
1020 N. Washington St.
Spokane, WA 99201
Telephone: (425) 239-7290
E-mail: Tjarrard@att.net
-and-
Matthew Z. Crotty, Esq.
Crotty & Son Law Firm, PLLC
905 W. Riverside Ave., Suite 409
Spokane, WA 99201
Telephone: (509) 850-7011
E-mail: matt@crottyandson.com
ELLATION LLC: Angeles Files ADA Suit in S.D. New York
-----------------------------------------------------
A class action lawsuit has been filed against Ellation, LLC. The
case is styled as Jenisa Angeles, on behalf of herself and all
others similarly situated v. Ellation, LLC, Case No. 1:21-cv-02480
(S.D.N.Y., March 22, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Ellation -- https://www.crunchyroll.com/ -- was formerly recognized
as a division within WarnerMedia, which encompassed Crunchyroll,
Rooster Teeth, and and VRV and have rebranded to Crunchyroll.[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
ENTERTAINMENT EARTH: Angeles Files ADA Suit in S.D. New York
------------------------------------------------------------
A class action lawsuit has been filed against Entertainment Earth,
Inc. The case is styled as Jenisa Angeles, on behalf of herself and
all others similarly situated v. Entertainment Earth, Inc., Case
No. 1:21-cv-02481 (S.D.N.Y., March 22, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Entertainment Earth -- https://www.entertainmentearth.com/ -- is a
source for action figures, toys, collectibles, and bobble heads to
collect.[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
FINELINE INDUSTRIES: Winegard Files ADA Suit in E.D. New York
-------------------------------------------------------------
A class action lawsuit has been filed against Fineline Industries,
LLC. The case is styled as Jay Winegard, on behalf of himself and
all others similarly situated v. Fineline Industries, LLC., Case
No. 1:21-cv-01534 (E.D.N.Y., March 23, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Fineline Industries, Inc. doing business as Centurion --
http://www.centurionboats.com/-- manufactures recreational boats.
The Company produces recreational boats built to produce large
wakes for the sports of wakeboarding and wakesurfing.[BN]
The Plaintiff is represented by:
Mitchell Segal, Esq.
LAW OFFICES OF MITCHELL SEGAL P.C.
1129 Northern Boulevard, Suite 404
Manhasset, NY 11030
Phone: (516) 415-0100
Email: msegal@segallegal.com
FLANDERS CORPORATION: Wyllie Suit Removed to C.D. Illinois
----------------------------------------------------------
The case captioned as Michael Wyllie, individually and on behalf of
all others similarly situated v. Flanders Corporation, Case No.
2021L000024 was removed from the Sangamon County Circuit Court, to
the U.S. District Court for the Central District of Illinois on
March 22, 2021.
The District Court Clerk assigned Case No. 3:21-cv-03078-SEM-TSH to
the proceeding.
The nature of suit is stated as Other P.I.
Flanders Corporation -- https://www.aafintl.com/en/commercial --
supplies air filtration equipment to industries.[BN]
The Plaintiff is represented by:
Brandon Michael Wise, Esq.
Paul A. Lesko, Esq.
PEIFFER WOLF CARR & KANE APLC
818 Lafayette Avenue, Floor 2
St Louis, MO 63104
Phone: (314) 833-4825
Email: bwise@pwcklegal.com
plesko@peifferwolf.com
The Defendant is represented by:
David M. Poell, Esq.
SHEPPARD MULLIN RICHTER & HAMPTON LLP
70 W Madison Street, Suite 4800
Chicago, IL 60602
Phone: (312) 499-6300
Fax: (312) 499-6301
Email: dpoell@sheppardmullin.com
GENEX SERVICES: Misclassifies Case Managers, Deal Suit Claims
-------------------------------------------------------------
TRACEY DEAL, on behalf of the State of California, as a private
attorney general, Plaintiff v. GENEX SERVICES, LLC, a Limited
Liability Company, and DOES 1 through 50, inclusive, Defendants,
Case No. 37-2021-00010977-CU-OE-CTL (Cal. Super., March 11, 2021)
brings this complaint against the Defendant pursuant to the Private
Attorney General Act of 2004 seeking only to recover civil
penalties for its alleged violations of the California Labor Code.
The Plaintiff was employed by the Defendant as a Field Case Manager
and a Telephonic Nurse Case Manager since June 2000 to present.
According to the complaint, the Defendant classified the Plaintiff
and other similarly situated Case Managers as salaried employees
exempt from overtime pay and the legally required meal and rest
breaks despite performing non-exempt tasks. Additionally, the
Defendant allegedly underpaid its employees' sick pay wages by
failing to include regularly earn non-discretionary remuneration at
their base rates of pay.
Moreover, the Plaintiff sent a written notice to the Labor and
Workforce Development Agency by electronic mail on November 5,
2020, as well as to the Defendant by certified mail regarding its
violations of the Labor Code Section 2699.3. However, the statutory
waiting period for the Plaintiff to add these allegations to the
Complaint has expired.
Genex Services, LLC provides integrated managed care services,
focusing on controlling health costs and reducing disability
expenses. [BN]
The Plaintiff is represented by:
Norman B. Blumenthal, Esq.
Kyle R. Nordrehaug, Esq.
Aparajit Bhowmik, Esq.
Nicholas J. De Blouw, Esq.
BLUMENTHAL NORDREHAUG BHOWMIK
DE BLOUW LLP
2255 Calle Clara
La Jolla, CA 92037
Tel: (858) 551-1223
Fax: (858) 551-1232
Website: www.bamlawca.com
KINDE LLC: Website Inaccessible to Blind Users, Monegro Suit Says
-----------------------------------------------------------------
FRANKIE MONEGRO, on behalf of himself and all others similarly
situated, Plaintiff v. KINDE LLC, Defendant, Case No. 1:21-cv-02131
(S.D.N.Y., March 11, 2021) is a class action complaint brought
against the Defendant pursuant to the Americans with Disabilities
Act for its alleged failure to design, construct, maintain, and
operate its Website to be fully accessible to and independently
usable by blind or visually-impaired people.
The Plaintiff is a visually-impaired and legally blind person who
requires screen-reading software to read Website content using his
computer.
The Plaintiff asserts that when he visited the Defendant's Website
on multiple occasions, the last occurring in March 2021, he has
encountered multiple access barriers which denied him a shopping
experience similar to that of a sighted individual. The Website,
www.kiinde.com, allegedly lacked of a variety of features and
accommodations which effectively barred him from being able to
determine what specific products were offered on sale and to
differentiate what products were on the screen due to its failure
to adequately describe its content.
The Plaintiff further contends that the Defendant has engaged in
acts of intentional discrimination as a result of its failure to
comply with the WCAG 2.1 Guidelines, which would provide the
Plaintiff and other visually-impaired consumers with equal access
to the Website.
The Plaintiff respectfully requests the Court to grant a
preliminary and permanent injunction to prohibit the Defendant from
violating the ADA and requiring the Defendant to take all the steps
necessary to make its Website into full compliance with the
requirements set forth in the ADA, as well as compensatory damages,
pre- ad post-judgment interest, litigation costs and expenses
together with reasonable attorneys' and expert fees, and other
relief as the Court deems just and proper.
Kinde LLC is a maternity products company that owns and operates
the Website. [BN]
The Plaintiff is represented by:
Mark Rozenberg, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Tel: (201) 282-6500
Fax: (201) 282-6501
E-mail: mrozenberg@steinsakslegal.com
LIBERTY MUTUAL: Faces Gill Suit Over Unsolicited Telephone Calls
----------------------------------------------------------------
ANNA GILL, individually and on behalf of all others similarly
situated, Plaintiff v. LIBERTY MUTUAL GROUP, INC., a Massachusetts
registered corporation, Defendant, Case No. 1:21-cv-10428 (D.
Mass., March 11, 2021) brings this class action complaint against
the Defendant to stop the Defendant from violating the Telephone
Consumer Protection Act (TCPA).
According to the complaint, the Defendant placed numerous
unsolicited phone calls to the Plaintiff's cellular telephone
number beginning on February 22, 2021 in an attempt to sell
insurance coverage. The Plaintiff's cellphone number has been
registered on the National Do-Not-Call Registry on April 27, 2010.
The Plaintiff contends that the Defendant has been using an
"automatic telephone dialing system" in placing its telemarketing
calls because when she called the Defendant's number, she heard an
automated voice message identifying the company name as Liberty
Mutual. Additionally, the Plaintiff did not provide the Defendant
with written consent to place pre-recorded calls or solicitation
calls to her cell phone, the suit says.
Due to the Defendant's unauthorized telephone calls, the Plaintiff
has been harmed in the form of annoyance, nuisance, and invasion of
privacy, and disturbed the Plaintiff's use and enjoyment of her
cell phone. Thus, on behalf of herself and all other similarly
situated persons, the Plaintiff seeks redress for these injuries
prohibiting the Defendant to place pre-recorded calls and
unsolicited calls to residential and cellular phone numbers, as
well as actual and/o statutory damages, and other relief as the
Court deems just and proper.
Liberty Mutual Group, Inc. provides insurance coverage to consumers
that includes vehicle coverage insurance. [BN]
The Plaintiff is represented by:
Jason Campbell, Esq.
250 First Avenue, Unit 602
Charlestown, MA 02129
Tel: (617) 872-8652
E-mail: jasoncampbell@ymail.com
- and –
Avi R. Kaufman, Esq.
KAUFMAN P.A.
400 NW 26th Street
Miami, FL 33127
Tel: (305) 469-5881
E-mail: kaufman@kaufmanpa.com
LOCTEK INC: Angeles Files ADA Suit in S.D. New York
---------------------------------------------------
A class action lawsuit has been filed against Loctek Inc. The case
is styled as Jenisa Angeles, on behalf of herself and all others
similarly situated v. Loctek Inc., Case No. 1:21-cv-02483
(S.D.N.Y., March 22, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
Loctek -- http://loctek.us/-- designs and manufactures sit-stand
desk risers, height adjustable desks and monitor arms etc, and
provides ergonomic and wellness solutions to create.[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
LOUISVILLE METRO: W.D. Kentucky Certifies Class in Lott Suit
------------------------------------------------------------
In the case, TYROME LOTT, Plaintiff v. LOUISVILLE METRO GOVERNMENT,
et al., Defendants, Civil Action No. 3:19-CV-271-RGJ (W.D. Ky.),
Judge Rebecca Grady Jennings of the District Court for the Western
District of Kentucky, Louisville Division:
(i) denied the Defendants' Motion for Summary Judgment;
(ii) denied the Defendants' Motion to Strike; and
(iii) granted the Plaintiff's Motion for Class Certification.
Plaintiff Lott alleges violations of state law and seeks relief
under 42 U.S.C. Section 1983 for violations of the Fifth, Eighth,
and Fourteenth Amendments to the United States Constitution against
Louisville-Jefferson County Metro Government, Steve Conrad,
individually and in his official capacity as Chief of Louisville
Metro Police Department, and Vanessa Burns, individually and in her
official capacity as Secretary of Public Works and Assets for Metro
Government.
In May 2005, Louisville Metro Council passed Louisville Metro
Ordinance 72.062. The Ordinance provides that "Metro Government
tow lot will charge $10 as a handling charge on all passenger cars,
pick-up trucks, vans and motorcycles plus a storage charge of $10
for each of the first seven days or fraction thereof the vehicle is
retained in storage and a charge of $5 per day for each additional
day the vehicle remains in storage." The Ordinance also provides
that "the Cabinet Secretary for Public Works and Services will set
all towing charges in writing. The fees set forth in this section
are the initial fees and hereinafter the Cabinet Secretary for
Public Works and Services may raise the fees no more than 10% each
year."
The Plaintiff alleges that on Feb. 2, 2008, and with no written
record of approval of the increase, the Secretary raised the
storage fee to $11 per day. This action eliminated the bifurcated
fee schedule set forth in the Ordinance which charged $10 per day
for the first seven days, and $5 for each day thereafter. The
Plaintiff asserts that when the Secretary took this action, the
maximum increase (10% per year) for storage of a vehicle after
seven days would have been $5.50 per day. It would not have been
$11 per day for every day of impoundment. The Defendants dispute
the Plaintiff's claim that there is "no written record of approval"
for the increase of storage fees in 2008.
The Secretary increased the storage fee to $12 in December 2009 and
$13 in August 2012. Conrad recommended the 2012 increase based on
"what had been before," but did not "go back and look at what
anybody had done in 2008 or 2009." The Defendants do not dispute
that since 2008 they have been overcharging individuals for
vehicles stored more than seven days.
On Sept. 9, 2018, police officers towed the Plaintiff's car to the
Metro Government tow lot because it was illegally parked and had a
marijuana joint in plain view inside it. Forty-four days later,
the Plaintiff paid the tow lot approximately $700 to retrieve his
car. The parties dispute whether the Plaintiff knew that Metro
Government had overcharged him in violation of the Ordinance when
he paid the tow lot.
In March 2019, the Plaintiff sued in Kentucky state court. The
Defendants removed to the Court.
The Plaintiff, individually and on behalf of the putative class,
asserts violations of 42 U.S.C. Section 1983 (Count I), unjust
enrichment (Count II), negligence per se (Count III)2, negligent
misrepresentation (Count IV), and declaratory and injunctive relief
(Count V). He alleges that Defendant Louisville Metro Government
had and has an unconstitutional practice, custom, policy, and
pattern of using its agents and employees to assess and collect
from the Plaintiff and members of the Class storage and impoundment
fees in excess of the amounts authorized by Louisville Metro
Ordinance 72.062.
The Plaintiff requests class certification for: All persons with
vehicles registered to them whose vehicles were assessed in excess
of the maximum storage fee charge of $10 for each of the first
seven days a vehicle is in storage, plus a $5 fee per day for each
additional day thereafter that a vehicle remains in storage as
authorized by Louisville Metro Ordinance 72.062, and those who had
their automobile auctioned, since on or about Feb. 2, 2008.
The Defendants move for summary judgment and to strike the
Plaintiff's class action allegations, definition, and claims. The
Plaintiff moves for class certification under Federal Rules of
Civil Procedure 23(a) and 23(b)(3).
Motion for Summary Judgment
The Defendants argue that the Plaintiff's Section 1983 class action
claim is barred by the relevant one-year statute of limitations:
"The action was commenced on March 15, 2019 within six months of
the date Lott's car was towed of Sept. 5, 2018, yet Lott seeks
relief on behalf of a putative class for those he alleges to be
'similarly situated persons' who were assessed unauthorized fees
dating back to Oct. 2, 2008." They also contend that Lott received
notice that he could request a hearing in compliance with KRS
82.625 but he failed to do so and instead he paid the towing and
storage charges voluntarily. The Defendants also argue that Lott's
claims are also barred by the voluntary payments doctrine. He
cannot otherwise recover these alleged overcharges or seeking
additional claim and relief, as he waived, forfeited or is estopped
from making such claims. Lastly, they argue that the doctrine of
unclean hands applies to bar the Plaintiff's claims.
Judge Jennings addresses these arguments in turn. Regarding first
argument, she finds that there is a genuine issue of material fact
about when the clock began to run on the putative class members'
Section 1983 claims. As a result, she cannot find at this time
that the putative class members' Section 1983 claims are barred by
the relevant one-year statute of limitations. Turning to the
second argument, she holds that requiring the Plaintiff to have an
administrative hearing on an issue he is not contesting does not
further "judicial economy by resolving issues within the agency,
eliminating the unnecessary intervention of courts." Nor does it
further "judicial economy" for the Plaintiff to present the issue
of the Defendants' illegal storage fee increases to an
administrative body that does not authority to "resolve" it.
Regarding the Defendants' third argument, the Judge finds a genuine
issue of material fact about whether the Plaintiff had "full
knowledge of all the facts which render the demand illegal" when he
paid his fees. Lastly, the Judge holds that there is a genuine
issue of material fact about whether the Plaintiff had "full
knowledge of all the facts which render the demand illegal" when he
paid his fees. She explains that the unclean hands doctrine is a
rule of equity and, therefore, should not be applied if to do so
reaches an inequitable result. When the plaintiff has engaged in
conduct less offensive than that of the defendant, the rule will
not preclude the plaintiff's recovery.
Motion for Class Certification
After considering all four elements of Fed. R. Civ. P. 23(a) --
numerosity, commonality, typicality, and adequacy of representation
-- Judge Jennings holds that the Plaintiffs have satisfied their
burden. First, although the Plaintiff has not provided the Court
with the exact number of putative class members, the sheer size of
the potential class satisfies the numerosity requirement. Second,
the Plaintiff has demonstrated that his proposed class can provide
common answers to whether Defendants breached the Ordinance in
2008. Third, the unique defenses apply to all the class members
and will not destroy typicality. Lastly, the Plaintiff has "common
interests with unnamed members of the class," and attorneys Deckard
and Alexander appear adequate to represent the proposed class.
The Judge also finds that the Plaintiffs have met Rule 23(b)'s
subdivisions. While the amount of damages incurred by each
proposed class member may be individualized, the significant and
common issue of the Defendants' alleged violations outweighs any
issues relating to each proposed class member's individual damages.
Thus, the predominance requirement of Rule 23(b)(3) has been
satisfied
Moreover, the proposed class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.
First, the members of the class have no interest in individually
controlling the prosecution of their claims. Second, the Court is
unaware of any other lawsuits in the district in which any of the
potential class members have asserted similar claims against
Defendants or that any other forum is more desirable or appropriate
than the District. Third, deciding whether the Defendants have
charged excessive and unauthorized storage fees would "both reduce
the range of issues and promote judicial economy." Finally,
although there are inherent difficulties in managing a class
action, those difficulties do not render class action
inappropriate.
For all these reasons, Judge Jennings denied the Defendants' Motion
for Summary Judgment and Motion to Strike. She granted the
Plaintiff's Motion to Certify Class.
Counts I, II, and IV of the Complaint will be maintained as a class
action under Fed. R. Civ. P. 23(b)(3) by the Plaintiff as Class
Representative on behalf of the class defined as: All persons with
vehicles registered to them whose vehicles were assessed a storage
fee in excess of $10 for each of the first seven days a vehicle was
in storage, plus a $5 fee per day for each additional day
thereafter that a vehicle remained in storage since on or about
Feb. 2, 2008.
Count III is dismissed with prejudice.
A full-text copy of the Court's March 17, 2021 Memorandum Opinion &
Order is available at https://tinyurl.com/f2ttvr9 from Leagle.com.
M&T BANK: Flynn Suit Transferred to N.D. Ohio
---------------------------------------------
The case styled as Mary Carr, Edward R. Flynn, Gene Daisey,
Catherine Hosick, individually and on behalf of all others
similarly situated v. M&T Bank Corporation, Manufacturers & Traders
Trust Company also known as: M&T Bank, Case No. 2:17CV4806, was
transferred from the U.S. District Court for the Eastern District
of Pennsylvania, to the U.S. District Court for the Northern
District of Ohio on March 18, 2021.
The District Court Clerk assigned Case No. 1:21-mc-00019-JG to the
proceeding.
The nature of suit is stated as Other Contract.
M&T Bank Corporation -- https://www3.mtb.com/ -- is an American
bank holding company headquartered in Buffalo, New York.[BN]
The Plaintiffs are represented by:
Michelle Stine Barnoff, Esq.
P.O. Box 816
Uniontown, OH 44685
Phone: (330) 877-8850
Email: barnoff@sbcglobal.net
MCKINSEY & COMPANY: King County Slams Involvement in Opioid Crisis
------------------------------------------------------------------
King County, on behalf of itself and similarly situated counties
and cities, Plaintiff, v. McKinsey & Company, Inc., United States
and Mckinsey & Company, Inc., Defendants, Case No. 21-cv-00221
(W.D. Wash., February 22, 2021), holds McKinsey liable for its role
in helping the Purdue Frederick Company (parent of Purdue Pharma,
L.P.) circumvent the Corporate Integrity Agreement (CIA) with the
Office of Inspector General of the United States Department of
Health and Human Services relating to the misbranding of OxyContin
and further fueling the opioid epidemic in violation of the
Washington Consumer Protection Act, constituting a public nuisance,
negligence and gross negligence under Washington law, violating the
Racketeer Influenced and Corrupt Organizations Act.
Purdue turned to a global management consulting firm McKinsey to
work around the requirements of the CIA, suggesting specific sales
and marketing strategies based on McKinsey's independent research
and unique methodologies. McKinsey had already been advising Purdue
for at least three years despite knowing the dangers of opioids.
King County and other counties and cities in Washington State are
experiencing a severe public health crisis and have suffered
significant economic damages, including but not limited to
increased costs related to public health, opioid-related crimes and
emergencies, the counties' and cities' own self-insured health
care, criminal justice and public safety, incurring substantial
costs in responding to the crisis. [BN]
Plaintiff is represented by:
Devon Shannon, Esq.
Senior Deputy Prosecuting Attorney
King County Prosecutor’s Office, Civil Division
516 Third Avenue, Suite 400
Seattle, WA 98104
Phone: (206) 477-1957
Fax: (206) 296-0191
- and -
Lynn Lincoln Sarko, Esq.
Derek W. Loeser, Esq.
Gretchen Freeman Cappio, Esq.
David J. Ko, Esq.
Daniel P. Mensher, Esq.
Matthew M. Gerend, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Tel: (206) 623-1900
Fax: (206) 623-3384
Email: lsarko@kellerrohrback.com
dcopley@kellerrohrback.com
claufenberg@kellerrohrback.com
MDL 2827: $500-Mil. Class Deal in Apple Device Suit Has Final Nod
-----------------------------------------------------------------
In the case, IN RE: APPLE INC. DEVICE PERFORMANCE LITIGATION. This
Document Relates To: ALL ACTIONS, Case No. 5:18-md-02827-EJD (N.D.
Cal.), Judge Edward J. Davila of the U.S. District Court for the
Northern District of California, San Jose Division, grants the
Named Plaintiffs' Motion for Final Approval of Proposed
Settlement.
In 2015, reports of unexplained shutdowns of certain Apple devices
began surfacing, with consumers complaining their devices were
suddenly shutting down even though the batteries were more than 30%
charged. Complaints accelerated in the autumn of 2016 and were
accompanied by reports of unexplained heating. This affected,
among other devices, the iPhone 6, 6 Plus, 6s, 6s Plus, 7, 7 Plus,
and SE. In 2017, Apple released iOS 10.2.1 and iOS 11.2 to address
the alleged defects but, rather than fix the defects, the software
updates allegedly "concealed them by secretly throttling the
Devices' performance to reduce the number of unexpected shutdowns
to a more manageable volume."
The allegedly diminished performance of iPhone 6s and iPhone 7s
running these operating systems led to 66 class action complaints
filed against Apple between December 2017 and June 2018 in federal
district courts around the country ("Federal Actions"). In the
same time, four class action complaints were filed against Apple in
California Superior Courts in San Francisco, San Mateo, and Los
Angeles ("State Actions").
Beginning in 2018, the Federal Actions were consolidated by the
U.S. Judicial Panel on Multidistrict Litigation in the Northern
District of California pursuant to 28 U.S.C. Section 1407, into the
MDL proceedings. By Aug. 2, 2018, the four State Actions were
coordinated into a single action in San Francisco Superior Court as
JCCP No. 4976. The JCCP Action follows its own lengthy litigation
history, including demurrers, amended complaints, discovery, etc.
The nationwide Settlement Class includes the California Class
represented by JCCP Counsel.
On May 15, 2018, the Court granted in part and denied in part the
motion to serve as interim lead counsel filed by Cotchett, Pitre &
McCarthy LLP and Kaplan Fox & Kilsheimer LLP. The Class Counsel
filed a Consolidated Amended Complaint ("CAC") on July 2, 2018.
The CAC was a lengthy document, detailing the grievances of 122
Named Plaintiffs and including 76 causes of action.
On Aug. 9, 2018, Apple moved to dismiss the CAC. On Oct. 1, 2018,
the Court granted in part and denied in part Apple's motion to
dismiss the CAC, with leave to amend. On Nov. 30, 2018, the Class
Counsel filed the SCAC. On Jan. 24, 2019, Apple filed a motion to
dismiss. The Court granted in part and denied in part this motion
to dismiss on May 3, 2019 with leave to amend. The Named
Plaintiffs ultimately chose not to amend the SCAC and on July 31,
2019, Apple filed its Answer to the SCAC.
The Parties selected the Hon. Judge Layn Phillips (Ret.), a former
U.S. District Judge and "the founder and lead mediator at Phillips
ADR Enterprises, P.C.", to facilitate mediation and settlement
discussions. At Judge Phillips' direction, the Parties submitted
mediation and supplemental statements. After submitting their
statements, the counsel for all Parties attended in-person
mediations before Judge Phillips on Jan. 7, 2019, Aug. 28, 2019,
and Sept. 27, 2019.
On Sept. 27, 2019, Judge Phillips made a mediator's proposal to the
Parties, which was accepted with Judge Phillips' continued
involvement in negotiating a term sheet and longform settlement
agreement. After several months more of negotiation, in February
2020, the Parties executed the Settlement.
The Settlement is a comprehensive resolution of all claims in the
Action and the JCCP Action. The Settlement provides for a
non-reversionary Minimum Class Settlement Amount of $310 million,
with a Maximum Class Settlement Amount of $500 million, in cash for
the benefit of the Settlement Class. In exchange for a release of
their claims, the Settlement Class Members will receive $25 for
each eligible iPhone, although the amount of that payment may
increase or decrease depending on any Attorneys' Fees and Expenses,
Named Plaintiff Service Awards, Notice expenses, and the aggregate
value of Approved Claims.
Under the Settlement, the Named Plaintiffs may also seek Service
Awards of $3,500 for the Named Plaintiffs who were deposed in the
Action and $1,500 for all Named Plaintiffs. The Class Counsel may
also seek an award of attorneys' fees and expenses. The Settlement
is not conditioned upon the Court's approval of the full (or any)
amount of Service Awards or attorneys' fees and expenses.
On Feb. 28, 2020, the Named Plaintiffs filed a motion for
preliminary approval of the Settlement. On May 27, 2020, the Court
granted preliminary approval, provisionally certified the
nationwide Settlement Class, and directed notice to be issued to
the Settlement Class Members pursuant to the Settlement and
preliminary approval motion.
The Court granted preliminary certification to a settlement class
of: "All former or current U.S. owners of iPhone 6, 6 Plus, 6s, 6s
Plus, 7, 7 Plus, and SE devices running iOS 10.2.1 or later (for
iPhone 6, 6 Plus, 6s, 6s Plus, and SE devices) or iOS 11.2 or later
(for iPhone 7 and 7 Plus devices), and who ran these iOS versions
before Dec. 21, 2017."
The "U.S. owners" is defined to "include all individuals who owned,
purchased, leased, or otherwise received an eligible device, and
individuals who otherwise used an eligible device for personal,
work, or any other purposes. An individual qualifies as a "U.S.
owner" if his or her device was shipped to the United States, its
territories, and/or its possessions.
Court-approved Settlement Administrator Angeion Group disseminated
Notice to the Class. As of Feb. 21, 2021, the claims process is
ongoing. The Settlement Administrator will submit a final report
to the Court once the claims administration process is complete.
The matter is before the Court on the Named Plaintiffs' Motion For
Final Approval. Specifically, the Named Plaintiffs move for an
order: (i) granting final certification of the Settlement Class
under Federal Rules of Civil Procedure 23(a) and 23(b)(3); (ii)
granting final approval of the proposed Settlement reached between
the Named Plaintiffs and Apple, under Rule 23(e); (iii) finding
that notice has been conducted in accordance with the
Court-approved notice plan and comports with due process and Rule
23; and (iv) dismissing with prejudice Named Plaintiffs' and
Settlement Class Members' claims against Apple. Apple also filed a
Statement in Support of Final Settlement Approval and Response to
Settlement Objections. The Motion was heard on Dec. 4, 2020 and
Feb. 17, 2021.
Based on pleadings filed to date and the comments made at the
hearing, Judge Davila grants the Named Plaintiffs' Motion.
First, he holds that the requirements of Rule 23(a) and (b) are
fully satisfied. On May 27, 2020, the Court preliminarily approved
the Class. Nothing has occurred that changes the Court's previous
determination that class certification is appropriate under Rule
23.
Second, the Judge holds that the Settlement is fair, reasonable and
adequate. He finds that (i) the parties actively and aggressively
litigated the action and the Class Counsel conducted a thorough
investigation and prosecution of the claims; (ii) the Class Counsel
and the Named Plaintiffs were well informed before entering into
the Settlement; (iii) the risk, expense, complexity, and likely
duration of further litigation weigh in favor of approving the
Settlement; (iv) the Settlement avoids that risk in favor of great
benefit to the Settlement Class; (v) the $25 cash payment per
eligible device is comfortably in the middle of this estimated
damages range; (vi) the Class Counsel has significant experience
with consumer class-actions; and (vii) the fact that the
overwhelming majority of the class willingly approved the offer and
stayed in the class presents at least some objective positive
commentary as to its fairness.
A full-text copy of the Court's March 17, 2021 Order is available
at https://tinyurl.com/47rwkpdw from Leagle.com.
MDL 2827: $80.6M Attys.' Fees in Apple Device Performance Suit OK'd
-------------------------------------------------------------------
In the case, IN RE: APPLE INC. DEVICE PERFORMANCE LITIGATION. This
Document Relates to: ALL ACTIONS, Case No. 5:18-md-02827-EJD (N.D.
Cal.), Judge Edward J. Davila of the U.S. District Court for the
Northern District of California, San Jose Division, grants in part
the Plaintiffs' Motion for Attorneys' Fees, Expenses, and Service
Awards.
The multi-district consumer class action settled. The $310 million
settlement is among the largest class action settlements in the
Circuit, and one of the largest class action settlements under the
California Data Access and Fraud Act, California Penal Code Section
502, and the federal Computer Fraud and Abuse Act, 18 U.S.C.
Section 1030.
Pending before the Court is the Named Plaintiffs' Motion for
Attorneys' Fees, Expenses, and Service Awards. The Named
Plaintiffs seek (i) attorneys' fees in the amount of $87.73
million, which is 28.3% of the $310 million non-reversionary
Minimum Class Settlement Amount; (ii) unreimbursed expenses
totaling $995,244.93 that the Class Counsel and JCCP Counsel
incurred in furtherance of the prosecution of the Action; and (iii)
Service Awards for the Named Plaintiffs in the amount of $3,500 to
each of the nine Named Plaintiffs who were deposed and $1,500 to
each of the remaining Named Plaintiffs.
On Oct. 6, 2020, Defendant Apple filed an Opposition to the
Plaintiffs' Motion for Attorneys' Fees, Expenses, and Service
Awards. On Nov. 20, 2020, the Named Plaintiffs filed a Reply in
Further Support of Motion for Attorneys' Fees, Expenses, and
Service Awards. The Court has also received approximately 75
objections. The Court conducted a hearing on Feb. 17, 2021.
The Settlement provides for a minimum lump-sum of $310 million.
Under no circumstances will any of the $310 million revert to
Apple. Thus, the Settlement has the characteristics of a common
fund insofar as the $310 million is fixed, certain, and
non-reversionary. There is an additional provision in the
Settlement that requires Apple to pay up to $500 million depending
on the number of valid claims submitted. Thus, each class member's
claim to the Settlement is not mathematically ascertainable until
after the claims process has been completed. The inclusion of this
additional provision in the Settlement lends some support to the
argument that the Settlement should be characterized as a
claims-made settlement rather than a common fund settlement.
Judge Davila finds that the Settlement is more appropriately
characterized as a common fund for purposes of the instant motion.
Therefore, he awards fees based on a percentage of the $310 million
Settlement amount.
While the Class Counsel bore the risk and expense throughout the
case and at the end achieved a substantial result for their
clients, in the final analysis, the Judge finds that no single
factor or combination of factors supports the requested 28.3%.
Accordingly, he proceeds with a lodestar calculation to evaluate
whether there is a basis to deviate upward or downward from the 25%
benchmark. Ultimately, he finds that an attorneys' fee award equal
to 26% of the $310 million fund is appropriate.
Regarding the expenses, the Judge finds the Class Counsel's
declarations adequately support their requests and that the
expenses are typical for this type of class litigation, including
for experts, mediations, legal research, court reporting services,
travel, and copying." The Judge also accepts the Class Counsel's
representation that the categories of expenses challenged by Apple
"included travel outside the district for multiple mediations,
expert and deposition preparations, and copying charges that could
not be outsourced due to Apple's insistence on restricting access
from third parties," and that "they were necessarily incurred to
advance the case." Further, he finds that the expenses are
reasonable.
Lastly, the Judge also finds that the requested service awards are
appropriate in the case. He finds that the requested service
awards are reasonable in light of the Named Plaintiffs' efforts in
the case. The requested service awards are also below the
presumptively reasonable amount of $5,000 and are consistent with
precedent.
For the reasons he stated, Judge Davila grants in part the Named
Plaintiffs' motion for attorneys' fees. The Named Plaintiffs are
awarded $80.6 million in attorneys' fees. The Judge grants the
motion for expenses and service awards as requested. The parties
are directed to submit a proposed judgment.
A full-text copy of the Court's March 17, 2021 Order is available
at https://tinyurl.com/9nknhjhr from Leagle.com.
NASSAU COUNTY, NY: Bid to Certify Class in LaPierre Suit Denied
---------------------------------------------------------------
In the case, EUGENE G. LAPIERRE, DANIEL PADILLA, LENNY TAVERAS,
SHAWN TRENT, ELY THOMAS, JAHLIL TREASURE, MATTHEW MARTINEZ, ANTINIO
CULLAL, NERCIN CHACON, WESTLEY WITTS, JONATHAN SCULLY, and JOSE
HERNDEZ, Plaintiffs v. SHERIFF JAMES E. DZURENDA, DR. DONNA M.
HENIG, CAPTAIN DONAHUE, CAPTAIN GOLIO, SGT. MARONNE, C.O. BARRERA,
C.O. HORAN, C.O. TORCHA, GRIEVANCE SUPERVISOR JOHN DOE, and KITCHEN
SUPERVISOR JOHN DOE, Defendants, Case No. 21-CV-0464(JS)(ARL)
(E.D.N.Y.), Judge Joanna Seybert of the U.S. District Court for the
Eastern District of New York denied Plaintiff LaPierre's motion for
class certification.
On Jan. 27, 2021, LaPierre ("Plaintiff") , Daniel Padilla, Lenny
Taveras, Shawn Trent, Ely Thomas, Jahlil Treasure, Matthew
Martinez, Antinio Cullal, Nercin Chacon, Westley Witts, Jonathan
Scully, and Jose Herndez, who are incarcerated and proceeding pro
se, initiated the action by filing a purported class action
Complaint against Nassau County Sheriff James E. Dzurenda, Dr.
Donna M. Henig, Captain Donahue, Captain Golio, Sergeant Maronne,
C.O. Barrera, C.O. Horan, C.O. Torcha, Grievance Supervisor John
Doe, and Kitchen Supervisor John Doe. Plaintiff LaPierre also
filed an application to proceed in forma pauperis, an application
pursuant to Federal Rule of Civil Procedure 65 for preliminary
injunctive relief, a motion to amend the Complaint, and a motion
for class certification and pro bono counsel.
Plaintiff LaPierre's 53-page Complaint alleges, pursuant to 42
U.S.C. Section 1983, claims for: excessive force, denial of due
process, cruel and unusual punishment, and denial of access to the
courts, inter alia. The Complaint's allegations relate to six
categories: (1) Nassau County Correctional Center's "arbitrary"
disciplinary procedures; (2) the "grievance supervisor"; (3) the
"kitchen supervisor"; (4) the law library; (5) COVID-19 concerns;
and (6) the overall conditions of confinement.
More specifically, the Plaintiff alleges that on Oct. 24, 2020,
Officer Horan punched the Plaintiff in the head and the Plaintiff
fought back. Other unidentified officers pulled the Plaintiff away
from Officer Horan, handcuffed and shackled him, and "repeatedly
kicked him in the back, his right side ribs and stomped on his neck
and back." The Plaintiff was "placed in solitary confinement also
known as the Behavior Modification Unit ("BMU")." He claims that
it is common practice for officers at Nassau County Correction to
assault prisoners and then place assault charges on the prisoner.
The Plaintiff alleges that by letters dated April 5, 2020 and Nov.
10, 2020, he complained about the conditions at the BMU to Sheriff
Dzurenda but did not receive a response.
As a result of the Oct. 24, 2020 incident between the Plaintiff and
Officer Horan, a disciplinary hearing was scheduled for Nov. 11,
2020. Sergeant Maronne found the Plaintiff guilty of assaulting
Officer Horan and imposed sanctions consisting of 180 days lock in,
60 days lost of visits, 24 weeks lost of commissary, a disciplinary
surcharge of $25 and a restitution in the amount of $100. The
Plaintiff claims that he suffers from high blood pressure, anxiety
attacks, and chest pains as a result of the time he spent in the
BMU and the BMU's conditions.
The Plaintiff also asserts allegations regarding the disciplinary
and grievance procedures at the Nassau County Correctional Center.
According to the Complaint, the sanctions imposed are "arbitrary,"
"excessive," and "unwarranted." In addition to the Oct. 24, 2020
incident, the Plaintiff provides several examples where he received
misbehavior reports that gave rise to a disciplinary hearing over
his objections. With regard to grievances, the believes that
grievances "disappear" and are thrown away.
Next, Plaintiff alleges that the "Kitchen Supervisor" provides the
"lowest grade of food possible" that "is completely lacking in
nutrition." He alleges to have filed a grievance wherein in
requested a menu because the food is often difficult to identify.
The grievance was denied and lists their circumstances and the
conditions in the BMU.
The Plaintiff further complains that the law library, as well as
access thereto, is inadequate. He avers that the law library lacks
"legal resources on how to seek an adjournment or a stay in civil
matters." The Plaintiff claims that he had an on-going civil case
pending in the Franklin County Supreme Court and was unable to
timely request an adjournment, which resulted in the dismissal of
the case. He also complains that, since November 2020, he has been
denied a pen and sufficient paper, which delayed the filing of the
instant action. The Plaintiff asserts that the "complaint cannot
be completed until he is provided with the necessary paper and a
BIC pen."
Finally, the Plaintiff complains about the Nassau County
Correctional Center's COVID-19 response and protocols.
The Complaint seeks: (1) "to make the case a class action lawsuit"
and the appointment of the class counsel; (2) "leave to amend and
complete the complaint once he is provided the needed paper, pens,
and whatever other needed legal resources"; (3) an order directing
the Defendants to release all individuals from the BMU "due to the
cruel and unusual living conditions"; (4) a trial; and (5) an order
directing Defendants to test all prisoners and staff for COVID-19.
First, Judge Seybert dismissed without prejudice the claims brought
by Padilla, Treasure, Martinez, Cullal, Chacon, and Herndez for
failure to prosecute pursuant to Federal Rule of Civil Procedure
41(b). To date, the Notices sent to Plaintiffs Padilla and
Treasure at their addresses of record have been returned to the
Court as undeliverable and marked "Discharged" and "Return to
Sender." Moreover, Plaintiffs Martinez, Cullal, Chacon, and
Herndez have not filed completed IFP applications, have not paid
the filing fee, nor have they otherwise communicated with the Court
about the case.
Second, the Judge holds that the action will proceed on an
individual basis by LaPierre; and dismissed without prejudice and
with leave to refile the claims brought by Scully, Taveras, Trent,
Thomas, and Witts. She finds that other than LaPierre, none of the
named Plaintiffs have filed a signed copy of the Complaint, even
after the Court provided them the opportunity to do so. The
Plaintiffs are not, and will not be, relieved of this obligation.
Even if Plaintiffs Scully, Thomas, Trent, Taveras, and Witts signed
the Complaint, the Judge would sever the claims because the
Complaint overwhelmingly asserts allegations specific to Plaintiff
LaPierre, whereas the affidavits filed by Thomas, Trent, and Witts
describe events that do not arise out of the same transactions or
occurrences or involve common questions of law or fact. Finally,
the Plaintiff styles the Complaint as a class action. However, as
a pro se litigant, the Plaintiff may not represent anyone other
than himself.
Third, given that a pro se plaintiff is unable to represent others,
the Judge denied the Plaintiff's motion to certify a class, without
prejudice to renewal should an attorney appear on his behalf.
Fourth, upon review of the Plaintiff's declarations in support of
his IFP application, the Judge finds that the Plaintiff is
qualified by his financial status to commence the action without
prepayment of the filing fees. Therefore, she granted the
Plaintiff's request to proceed in forma pauperis.
Fifth, the Judge denied the Plaintiff's application for a
preliminary injunction pursuant to Federal Rule of Civil Procedure
65(a). She holds that the Plaintiff has not demonstrated a clear
or substantial likelihood of success on his claims. The Plaintiff
remains free to develop the record further and to renew his
requests for injunctive relief if warranted based on additional
facts.
Sixth, the Plaintiff's request that the Court appoints pro bono
counsel to represent the class because the "class action suit is
too complex for Mr. LaPierre to handle is denied without prejudice
and with leave to renew at a later stage in the proceedings. The
Judge holds that unlike criminal defendants, civil litigants do not
have a constitutional right to counsel. Even assuming the
Plaintiff meets the threshold requirements under Hodge, the record
reflects that the legal issues presented by the Complaint are not
unduly complex and, at this juncture, the Plaintiff can adequately
prosecute his claims pro se.
Seventh, the Plaintiff's claims may proceed with the exception that
his Eighth Amendment cruel and unusual punishment claim, denial of
access to the Courts claim, and claims against the John Doe Kitchen
Supervisor are dismissed without prejudice.
Finally, the Judge granted the Plaintiff's Motion for Leave to File
an Amended Complaint filed on Feb. 22, 2021, to file an amended
complaint that corrects the deficiencies noted within 45 days of
the date of the Order. Should the Plaintiff elect to file an
Amended Complaint, it will be clearly labeled "Amended Complaint"
and will bear the same case number as identified in the Order,
i.e., No. 21-CV-0464(JS)(ARL).
The Judge takes notice that the Plaintiff did not file a proposed
Amended Complaint but submitted a document seeking to add
additional parties to the Complaint. As stated, the Plaintiff may
not assert claims on behalf of anyone other than himself. Further,
because the Amended Complaint will completely replace the original
Complaint, it must include all factual allegations and claims that
the Plaintiff seeks to pursue in the case.
The Plaintiff is warned that if he does not file an Amended
Complaint within 45 days of the date of the Order, the Clerk of
Court will cause the United States Marshals Service to serve copies
of the Summons, the Plaintiff's original Complaint, and the Order
upon the Defendants.
The Clerk of the Court will mail a copy of the Order to the pro se
Plaintiffs at their last known address, with the notation "Legal
Mail" on the mailing envelope. Pursuant to 28 U.S.C. Section
1915(a)(3), Judge Seybert certified that any appeal from the Order
would not be taken in good faith and therefore in forma pauperis
status is denied for the purpose of any appeal.
A full-text copy of the Court's March 17, 2021 Memorandum & Order
is available at https://tinyurl.com/3jhjvsxf from Leagle.com.
Eugene G. LaPierre, pro se, Daniel Padilla, pro se, Lenny Taveras,
pro se, Shawn Trent, pro se, Ely Thomas, pro se, Jahlil Treasure,
pro se, Antinio Cullal, pro se, Nercin Chacon, pro se, Westley
Witts, pro se Jonathan Scully, pro se, Jose Herndez, pro se, Nassau
County Correctional Facility East Meadow, in New York, for
Plaintiffs.
No Appearances, for Defendants.
NATIONAL CREDIT: Dhas Files FDCPA Suit in E.D. Pennsylvania
-----------------------------------------------------------
A class action lawsuit has been filed against National Credit
Systems, Inc. The case is styled as Madhukar Dhas, on behalf of
himself and all others similarly situated v. National Credit
Systems, Inc., Case No. 2:21-cv-01386-CMR (E.D. Pa., March 23,
2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
National Credit Systems, Inc. --
https://www.nationalcreditsystems.com/ -- is a debt collection
agency.[BN]
The Plaintiff is represented by:
Robert P. Cocco, Esq.
LAW OFFICES OF ROBERT P. COCCO PC
1500 Walnut St., Ste. 900
Philadelphia, PA 19102
Phone: (215) 351-0200
Fax: (215) 922-3874
Email: rcocco@rcn.com
NEMACOLIN WOODLANDS: Hook Files Suit in W.D. Pennsylvania
---------------------------------------------------------
A class action lawsuit has been filed against Nemacolin Woodlands
Inc., et al. The case is styled as Cheryl Hook, David Seman,
individually and on behalf of all others similarly situated v.
Nemacolin Woodlands Inc. doing business as Nemacolin Woodlands
Resort, a Pennsylvania corporation; Nemacolin Inc., a Pennsylvania
corporation; NWL, CO., a Pennsylvania corporation; Case No.
2:21-cv-00387-MPK (W.D. Pa., March 23, 2021).
The nature of suit is stated as Other Contract for Breach of
Contract.
Nemacolin Woodlands, Inc. doing business as Nemacolin Woodlands
Resort -- https://www.nemacolin.com/ -- provides hospitality
services. The Company offers facilities for stay, restaurants,
bars, as well as hosts venue for events, meetings, and
weddings.[BN]
The Plaintiffs are represented by:
Joy D. Llaguno, Esq.
HOOK & HOOK PLLC
430 East Oakview Drive, Ste. 101
Waynesburg, PA 15370
Phone: (724) 802-7144
Fax: (724) 802-7959
Email: joymelina@gmail.com
NEPTUNE WELLNESS: Faces Gong Suit Over Drop in Share Price
----------------------------------------------------------
MARVIN GONG, individually and on behalf of all others similarly
situated, Plaintiff v. NEPTUNE WELLNESS SOLUTIONS INC.; MICHAEL
CAMMARATA; MARIO PARADIS; CLAUDIE LAUZON; and TONI RINOW,
Defendants, Case No. 1:21-cv-01386 (E.D.N.Y., Mar. 16, 2021) is a
federal securities class action by the Plaintiff and the Class who
purchased or otherwise acquired Neptune securities between July 24,
2019 and February 16, 2021, 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").
The Plaintiff alleges in the complaint that throughout the Class
Period, the Defendants made materially false and misleading
statements regarding the Company's business, operational and
compliance policies. Specifically, the Defendants made false and
misleading statements and failed to disclose that: (i) the cost of
Neptune's integration of the assets and operations acquired in the
SugarLeaf Acquisition would be larger than the Company had
acknowledged, placing significant strain on the Company's capital
reserves; (ii) accordingly, it was reasonably foreseeable that the
company would need to conduct additional stock offerings to raise
more capital; and (iii) as a result, the Company's public
statements were materially false and misleading at all relevant
times.
As a result of the Defendants' alleged wrongful acts and omissions,
and the precipitous decline in the market value of the Company's
securities, Plaintiff and other Class members have suffered
significant losses and damages.
Neptune Wellness Solutions Inc. is a diversified and fully
integrated health and wellness company. The Company focuses on
building a broad portfolio of affordable consumer products in
response to long-term secular trends and market demand for natural,
plant-based, sustainable, and purpose-driven lifestyle brands.
[BN]
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
J. Alexander Hood II, Esq.
POMERANTZ LLP
600 Third Avenue
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
ahood@pomlaw.com
-and-
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
10 South La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Facsimile: (312) 377-1184
E-mail: pdahlstrom@pomlaw.com
NEW YORK: Herrejon Files Bid for Class Action Certification
-----------------------------------------------------------
In the class action lawsuit captioned as Julio Cesar Herrejon v.
The State of New York, GOVERNOR ANDREW CUOMO; a COMMISSIONER OF
CORRECTIONS ANTHONY ANNUCCI; MED. DIRECTOR OF PAROLE JEFF McKoy, et
al., Case No. 2:21-cv-01340-JMA-SIL (E.D.N.Y.), the Plaintiff asks
the Court to enter an order granting his motion for class action
certification.
The Plaintiff contends that he was sentence by a state court in the
State of New York, and placed under the care custody and control of
the Department of Correction in the State of New York. He is
currently confined at the Orleans Correction facility, he adds.
The Plaintiff further gives challenge to the conditions at time in
question and furthermore the length of sentence and confinement
during the COVID-19 pandemic.
New York is a state in the northeastern U.S., known for New York
City and towering Niagara Falls.
The Plaintiff appears pro se.
A copy of the Plaintiff's motion to certify class dated March 11,
2020 is available from PacerMonitor.com at https://bit.ly/39bKxr7
at no extra charge.[CC]
PIPE TRADES PENSION: Knaus Seeks Proper Benefits Under Pension Plan
-------------------------------------------------------------------
David Knaus, on behalf of himself and all others similarly situated
v. Board of Trustees of the Northern California Pipe Trades Pension
Plan and The Northern California Pipe Trades Pension Plan,
Defendants, Case No. 21-cv-01266 (N.D. Cal., February 22, 2021),
seeks to recover pension benefits under the terms of a pension plan
and for declaratory, injunctive and other equitable relief for
violations of the Employee Retirement Income Security Act (ERISA)
for actuarial equivalence, vesting and non-forfeiture requirements,
breaches of fiduciary duty and for violations of ERISA's claim
procedure and disclosure requirements and for statutory penalties
for the failure to provide plan documents that Knaus requested from
the Plan Administrator.
David Knaus was and is a steamfitter who was employed from in or
around June 1995 through in or around October 2010 and again from
in or around January 2012 to the present by various employers under
collective bargaining agreements and/or area trade agreements
between those employers and United Association of Journeyman and
Apprentices of the Plumbing and Pipe Fitting Industry, Local 342 of
the United States and Canada. Knaus is a participant of the
Northern California Pipe Trades Pension Plan, a defined benefit
employee pension benefit plan which was established and maintained
for the purpose of providing retirement benefits for participants
working in the plumbing and pipe trades and their beneficiaries.
The Board of Trustees of the Northern California Pipe Trades
Pension Plan is the Administrator of said plan.
Knaus alleges that the plan's summary plan descriptions (SPD)
failed to disclose the benefit provisions pursuant to which early
retirees who return to work prior to normal retirement age are
entitled to receive their full normal retirement benefits with an
adjustment for the pension benefits paid and the additional service
credit earned following their return to Industry Service.
Defendants suspended Mr. Knaus's benefits effective January 1, 2012
and have not yet commenced resumed paying his retirement benefits.
Knaus has earned 10.84 additional years of benefit credit under the
plan and since he is past his normal retirement date and has not
yet retired or commenced benefits but ceased working in or around
November 2020, he claims to be entitled to an actuarial increase
when he retires to account for the delay in commencement of
benefits. In or around April 2020, at the age of 68, Knaus
requested an estimate of his benefits. The estimate provided
indicated that when he resumed benefits, he would receive the same
actuarially reduced early retirement benefit he was previously
receiving before his benefits were suspended plus the benefits he
earned after he returned to work in January 2012. Knaus submitted
an administrative appeal requesting that the early retirement
reduction to his pension benefits be removed in accordance with the
Plan document. In June 26, 2020, Defendants denied Knaus' appeal
saying that the Plan would only pay Knaus the reduced early
retirement benefits calculated when he was 59 (and paid for one
year) plus the additional benefits earned following his return to
work in 2012.
Defendants' failure and refusal to provide Knaus with his full
unreduced normal retirement benefit taking into account all credit
earned with an adjustment for the one year of benefits he was paid
will result in a reduction of Knaus's benefits upon the resumption
of his pension benefits.
During the year Knaus collected early retirement benefits he
received a total of $19,269.25. Under the terms of the Plan and
ERISA, if Knaus elects to commence benefits as of March 1, 2021,
Mr. Knaus would be entitled to receive a monthly benefit of at
least $3,404 per month which includes benefits for all of his
service minus an offset for the one year of benefits he received
plus an actuarial increase to account for the delay in
receipt of normal retirement benefits for the period he was not
working in industry service. However, Defendants' calculations
indicate that they intend to pay Knaus at most $2,958 which is at
least $445 less per month than he is entitled to receive under the
terms of the Plan and ERISA. By letter dated July 1, 2020, Knaus
made a written request to the Plan Administrator for copies of Plan
documents including all of the Plan documents in effect during his
participation in the Plan. [BN]
Plaintiff is represented by:
Susan Martin, Esq.
Jennifer Kroll, Esq.
Michael M. Licata, Esq.
MARTIN & BONNETT, PLLC
4647 N. 32nd St., Suite 185
Phoenix, AZ 85018
Tel: (602) 240-6900
Fax: (602) 240-2345
Email: smartin@martinbonnett.com
jkroll@martinbonnett.com
mlicata@martinbonnett.com
- and -
Teresa S. Renaker, Esq.
RENAKER HASSELMAN SCOTT, LLP
505 Montgomery Street, Suite 1125
San Francisco, CA 94111
Telephone: (415) 653-1733
Facsimile: (415) 727-5079
Email: teresa@renakerhasselman.com
PLAYMONSTER LLC: Jaquez Files ADA Suit in S.D. New York
-------------------------------------------------------
A class action lawsuit has been filed against PlayMonster, LLC. The
case is styled as Ramon Jaquez, on behalf of himself and all others
similarly situated v. PlayMonster, LLC, Case No. 1:21-cv-02473
(S.D.N.Y., March 22, 2021).
The lawsuit is brought over alleged violation of the Americans with
Disabilities Act.
PlayMonster -- https://www.playmonster.com/ -- is a manufacturer
and marketer of family entertainment products that specializes in
games, children's puzzles, toys, activities, and teaching
tools.[BN]
The Plaintiff is represented by:
Yitzchak Zelman, Esq.
MARCUS & ZELMAN LLC
701 Cookman Avenue, Suite 300
Asbury Park, NJ 07712
Phone: (845) 367-7146
Fax: (732) 298-6256
Email: yzelman@marcuszelman.com
PRETIUM RESOURCES: Osler Attorneys Discuss Securities Suit Ruling
-----------------------------------------------------------------
Sonja Pavic, Esq., and Kevin O'Brien, Esq., of Osler, report that
until recently, Ontario courts had not considered on the merits a
class action under the secondary market misrepresentation
provisions of the Ontario Securities Act. There was therefore some
uncertainty about how courts would apply the different evidentiary
standards that the plaintiff must meet at the various stages of a
securities class action (i.e., leave to proceed, certification and
trial). In Wong v. Pretium Resources, 2021 ONSC 54, Justice
Belobaba summarily dismissed the plaintiff's claim, finding that
the defendants had not made any misrepresentation by omission and
that, in any event, the defendants had a valid reasonable
investigation defence. Justice Belobaba held that while the
plaintiff was able to meet the test for leave to proceed, they did
not prove on a balance of probabilities that there was a
misrepresentation or reliance.
The Facts
The plaintiff alleged that the mining company Pretium Resources
Inc. ("Pretium") had made a misrepresentation by omission by not
disclosing in a timely manner a negative opinion from one of its
consultants, Strathcona, regarding the company's mineral resource
estimate prepared by another mining consultant, Snowden. Pretium
considered Strathcona's concerns and decided that they were
unreliable and wrong, and decided not to disclose their opinion to
the market. Ultimately, Strathcona resigned, and Pretium issued a
news release disclosing the resignation and the reasons for it. The
plaintiff alleged that this disclosure revealed the earlier
misrepresentation by omission.
Test for Leave vs. Merits Stage
Justice Belobaba confirmed at the outset the distinction between
the evidentiary standard at leave versus on the merits. He noted
that he had granted the plaintiff leave because there was enough
evidence provided at that stage to meet the "reasonable possibility
of success" hurdle. At the leave motion, he found that Pretium's
subjective view of Strathcona's concerns did not displace the
objective finding of an experienced mining consultant. It was also
not clear at that stage that Pretium would be able to prove the
reasonable investigation defence.
However, as Justice Belobaba noted, while the leave motion is "more
than a speed bump, it is not the Matterhorn".[1] On the merits, the
plaintiff must meet the higher standard of a "balance of
probabilities." At the summary judgment motion, the defendants
presented additional evidence - including three affidavits of
company executives and three affidavits of independent expert
witnesses, including Snowden - that convinced the court on a
balance of probabilities that there was no omission of any material
fact. In contrast, the plaintiff only led substantive evidence from
one witness, and notably did not file any evidence from Strathcona.
Justice Belobaba also noted that the plaintiff's "somewhat
disturbing" examination transcript indicated that the plaintiff was
not aware of any of the impugned documents contained the alleged
representations until class counsel approached him about bringing
an action.
Based on the evidence presented at the summary judgment motions,
Justice Belobaba found that Strathcona's opinions were beyond their
area of expertise, outside of their assigned duties, and proven
wrong by Snowden, a more qualified expert on the issue. He thus
held Pretium was under no obligation to disclose information it
reasonably and objectively thought was "premature, unreliable, and
incorrect." Furthermore, Justice Belobaba held that even if Pretium
had been found guilty of misrepresentation, it had a reasonable
investigation defence under s. 138.4(6) of the Securities Act,
because the company had extensive internal discussions and made
efforts to evaluate the objective value of Strathcona's concerns.
The judge also noted that the findings in the parallel class action
in the U.S., which was dismissed, were persuasive and reinforced
his conclusion on the evidence in the Ontario action.
Takeaways
While this case does not materially alter the existing law on the
standards to be applied at the various stages of a securities class
action, it is a useful demonstration of how success at leave may
not necessarily lead to success on the merits. The case also
emphasizes the importance of the reliability of information
(including the expertise of the party providing it) in determining
whether the information is in fact "material" under the Securities
Act. As Justice Belobaba stated, unreliable information is not a
material fact that must be disclosed. In discussing the reasonable
investigation defence, the Court also confirmed that a public
issuer can take the time it needs to properly investigate an
allegation before making statements to the market which may
ultimately turn out to be wrong. [GN]
PROSPECT CHARTERCARE: Initial Approval of Class Settlement Sought
-----------------------------------------------------------------
In the class action lawsuit captioned as STEPHEN DEL SESTO, AS
RECEIVER AND ADMINISTRATOR OF THE ST. JOSEPH HEALTH SERVICES OF
RHODE ISLAND RETIREMENT PLAN, ET AL., v. PROSPECT CHARTERCARE, LLC,
ET AL., Case No. 1:18-cv-00328-WES (D.R.I.), the Plaintiff asks the
Court to enter an order:
1. granting preliminary approval of the settlement pursuant to
Fed. R. Civ. P. 23(e);
2. preliminarily certifying:
"all of the Plan participants as the Settlement Class;
3. preliminarily appointing Wistow, Sheehan & Loveley, PC to
represent the Settlement Class;
4. authorizing the Plan Receiver to issue the Class Notice to
the Settlement Class;
5. scheduling the submission of the Plaintiffs' motion for final
settlement approval and WSL's motion for attorneys' fees and
the date for objection thereto;
6. scheduling the hearing for final approval of the settlement
and approval of WSL's motion for an award of attorneys' fees;
and
7. granting approval of the settlement between Plaintiffs,
Defendants Prospect and Angell, and Messrs. Topper and Lee as
a good faith settlement pursuant to R.I. Gen. Laws section
23-17.14-35.
Prospect Chartercare is a for-profit healthcare joint venture in
Rhode Island.
A copy of the Plaintiff's motion to certify class dated March 11,
2020 is available from PacerMonitor.com at https://bit.ly/39fkbEJ
at no extra charge.[CC]
The Plaintiff is represented by:
Max Wistow, Esq.
Stephen P. Sheehan, Esq.
Benjamin Ledsham, Esq.
WISTOW, SHEEHAN & LOVELEY, PC
61 Weybosset Street
Providence, RI 02903
Telephone: (401) 831-2700
Facsimile: (401) 272-9752
E-mail: mwistow@wistbar.com
spsheehan@wistbar.com
bledsham@wistbar.com
QUALITY STONE: Vilchis et al. Sue Over Failure to Pay Laborers' OT
------------------------------------------------------------------
The case, FERNANDO VILCHIS and BRUNO VILCHIS, individually and on
behalf of others similarly situated, Plaintiffs v. QUALITY STONE
CORP., ARGO STONE LLC, PIETRA STONE CORP., and GEORGE
PAPADONIKOLALAS, Defendants, Case No. 1:21-cv-01318 (E.D.N.Y.,
March 11, 2021) challenges the Defendants' unlawful employment
practices and policies that violated the Fair Labor Standards Act
and the New York Labor Law.
The Plaintiffs have worked for the Defendants performing laborer
work - Plaintiff Fernando started from 2009 until March 3, 2020,
while Plaintiff Bruno was from June 2015 until March 3, 2020.
The Plaintiffs assert that although they and other similarly
situated laborers regularly worked in excess of 40 hours per
workweek, the Defendants willfully failed and refused to pay them
their lawfully earned overtime compensation at one and one-half
times their regular rate of pay for all hours they worked over 40
in a workweek. In addition, the Defendants also failed to provide
them with a notice and accurate wage statements.
The Plaintiffs bring this collective and class action complaint on
behalf of themselves and other similarly situated laborers seeking
for compensatory damages, prejudgment interest, liquidated damages,
reasonable attorneys' fees and other relief as the Court deems just
and proper.
The Corporate Defendants operate a stone and tile remodeling
business. The Individual Defendant exercises operational control
over the Corporate Defendants' operations. [BN]
The Plaintiffs are represented by:
Michael Taubenfeld, Esq.
FISHER TAUBENFELD LLP
225 Broadway, Suite 1700
New York, NY 10007
Tel: (212) 571-0700
Fax: (212) 505-2001
RCI HOSPITALITY: Misclassifies Exotic Dancers, Halverson Claims
---------------------------------------------------------------
BRITNEY HALVERSON, individually and on behalf of all others
similarly situated, Plaintiff v. RCI HOSPITALITY HOLDINGS, INC.,
d/b/a XTC CABARET, Defendant, Case No. 3:21-cv-00565-N (N.D. Tex.,
March 11, 2021) is a collective action complaint brought against
the Defendant for its alleged willful violation of the Fair Labor
Standards Act.
The Plaintiff was employed by the Defendant as an exotic dancer to
provide entertainment to customers who visit and frequent the
establishment.
The Plaintiff claims that the Defendant misclassified her and other
similarly situated exotic dancers as "independent contractors".
Despite performing their duties, the Defendant did not pay the
required minimum wage and overtime wages for the hours they worked
in excess of 40 in a workweek, the Plaintiff adds.
The Plaintiff requests payment of all unpaid minimum and overtime
wages, including liquidated damages plus interest, as well as
restitution of all unlawful deductions taken from the wages,
restitution of wrongfully withheld wages and tips, attorney fees
and costs, and other relief as the Court deems proper.
RCI Hospitality Holdings, Inc. d/b/a XTC Cabaret operates
nightclubs in Dallas, Texas. [BN]
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
KAZEROUNIAN LAW GROUP, APC
245 Fischer Ave., Suite D1
Costa Mesa, CA 92626
Tel: (800) 400-6808
Fax: (800) 520-5523
E-mail: ak@kazlg.com
- and –
Ramona Ladwig, Esq.
KAZEROUNI LAW GROUP, APC
1910 Pacific Ave., Suite 14155
Dallas, TX 75201
Tel: (214) 880-6362
Fax: (800) 635-6425
E-mail: ramona@kazlg.com
STATE COLLECTION: Rowley Sues Over Misleading Collection Letter
---------------------------------------------------------------
The case, KIMBERLEE ROWLEY, individually and on behalf of all
others similarly situated, Plaintiff v. STATE COLLECTION SERVICE,
INC., and JOHN DOES 1-25, Defendant, Case No. 1:21-cv-00358-UNA (D.
Del., March 11, 2021) alleges the Defendant of violations of the
Fair Debt Collection Practices Act.
The Plaintiff has an obligation that was allegedly incurred to
Bayhealth Emergency primarily for personal, family or household
purposes, specifically medical services.
According to the complaint, the Defendant contracted with Bayhealth
Emergency to collect the alleged debt, and subsequently sent a
collection letter to the Plaintiff on January 28, 2021. However,
the Defendant's letter is confusing and deceptive because it does
not clearly indicate how the Plaintiff can properly pay the alleged
debt. Although the letter states two completely different addresses
for the Defendant, but there is no instruction which address the
payments would be sent, nor does the Letter state that both
addresses would be acceptable, the suit adds.
The Defendant violated Section 1692e as the letter is open to more
than one reasonable interpretation, at least one of which is
inaccurate, and by making a false and misleading representation.
The Plaintiff asserts that the Defendant's collection efforts with
respect to her alleged debt caused her to suffer concrete and
particularized harm. Thus, the Plaintiff brings this complaint as a
class action on behalf of herself and other similarly situated
demanding judgment against the Defendant an actual and statutory
damages, litigation costs, reasonable attorneys' fees and expenses,
pre- and post-judgment interest, and other relief as the Court may
deem just and proper.
State Collection Service, Inc. is a debt collector. [BN]
The Plaintiff is represented by:
Antranig Garibian, Esq.
GARIBIAN LAW OFFICES, P.C.
1010 N. Bancroft Pkwy, Suite 22
Wilmington, DE 19805
Tel: (302) 722-6885
E-mail: ag@garibianlaw.com
STERLING PROPERTY: Fails to Pay Proper Wages, Ceballos Alleges
--------------------------------------------------------------
GONZALO AGUILAR CEBALLOS, individually and on behalf of all others
similarly situated, Plaintiff v. STERLING PROPERTY MANAGEMENT,
INC.; and DOES 1 through 50, inclusive, Defendants, Case No.
30-2021-01189318-CU-OE-CXC (Cal. Super., Orange Cty., Mar. 16,
2021) is an action against the Defendants for failure to pay
minimum wages, overtime compensation, authorize and permit meal and
rest periods, provide accurate wage statements, and reimburse
necessary business expenses.
The Plaintiff was employed by the Defendants as staff.
Sterling Property Management, Inc. manages apartments, houses and
condos in L.A. County, Orange County. [BN]
The Plaintiff is represented by:
David Yeremian, Esq.
Alvin B. Lindsay, Esq.
DAVID YEREMIAN & ASSOCIATES, INC.
535 N. Brand Blvd., Suite 705
Glendale, CA 91203
Telephone: (818) 230-8380
Facsimile: (818) 230-0308
E-mail: david@yeremianlaw.com
alvin@yeremianlaw.com
THAI GREENLEAF: Fails to Pay Proper Wages, Chen Suit Alleges
------------------------------------------------------------
DONG HUI CHEN, individually and on behalf of all others similarly
situated Plaintiff v. THAI GREENLEAF RESTAURANT CORP d/b/a Thai
Green Leaf; THAI GREEN LEAF INC d/b/a Thai Green Leaf; XIAOGUANG
LIN a/k/a Xiao Guang Lin; XIAOKAI LIN a/k/a Xiao Kai Lin; HENGKENG
LIN a/k/a Heng Keng Lin a/k/a Kenny Lin; YIMEI LIN a/k/a Yi Mei
Lin; WEN CHEN a/k/a Chen Wen; DAN WEN; XIURONG ZHANG a/k/a Xiu Rong
Zhang, Defendants, Case No. 2:21-cv-01382 (E.D.N.Y., March 16,
2021) seeks to recover from the Defendants unpaid wages and
overtime compensation, interest, liquidated damages, attorneys'
fees, and costs under the Fair Labor Standards Act.
Plaintiff Chen was employed by the Defendants as fry wok.
THAI GREENLEAF RESTAURANT CORP d/b/a Thai Green Leaf owns and
operate a restaurant located at New York, New York. [BN]
The Plaintiff is represented by:
John Troy, Esq.
Aaron Schweitzer, Esq.
TROY LAW, PLLC
41-25 Kissena Boulevard Suite 103
Flushing, NY 11355
Telephone: (718) 762-1324
TRUEACCORD CORP: Kennedy Sues Over Deceptive Collection Letter
---------------------------------------------------------------
The case, DAWN KENNEDY, individually and on behalf of all others
similarly situated, Plaintiff v. TRUEACCORD CORP., LVNV FUNDING
LLC, and John Does 1-25, Defendants, Case No. 2:21-cv-01170 (E.D.
Penn., March 11, 2021) arises from the Defendants' alleged
violations of the Fair Debt Collection Practices.
The Plaintiff has an alleged debt incurred to HSBC Bank Nevada,
N.A. primarily for personal, family or household purposes.
According to the complaint, Defendant LVNV, who is a subsequent
owner of the HSBC Bank Nevada, N.A. debt, contracted with Defendant
TrueAccord to collect the alleged debt. Subsequently on or about
February 10, 2021, Defendant TrueAccord sent a collection letter to
the Plaintiff that states a balance of $731.92. The Letter,
however, is materially deceptive because it fails to disclose that
the previously-lapsed statute of limitations to file a lawsuit to
collect the debt will recommence upon his partial payment, the
Plaintiff alleges.
The Plaintiff claims that he has sustained an informational injury
in that she was deceptively misled about the true legal nature of
the alleged debt and was not advised that making payment on the
debt would restart the statute of limitations. He brings this
complaint as a class action on behalf of herself and all others
similarly situated demanding statutory and actual damages from the
Defendant, as well as litigation costs, reasonable attorneys' fees
and expenses, pre- and post-judgment interest, and other relief as
the Court may deem just and proper.
The Corporate Defendants are debt collectors. [BN]
The Plaintiff is represented by:
Antranig Garibian, Esq.
GARIBIAN LAW OFFICES, P.C.
1800 JFK Blvd., Suite 300
Philadelphia, PA 19103
Tel: (215) 326-9179
E-mail: ag@garibianlaw.com
TRUEACCORD CORP: Pressley Files FDCPA Suit in New Jersey
--------------------------------------------------------
A class action lawsuit has been filed against TrueAccord Corp., et
al. The case is styled as Brian Pressley, individually and on
behalf of all others similarly situated v. TrueAccord Corp., LVNV
Funding LLC, John Does 1-25, Case No. 2:21-cv-06226 (D.N.J., March
22, 2021).
The lawsuit is brought over alleged violation of the Fair Debt
Collection Practices Act.
TrueAccord -- https://www.trueaccord.com/ -- is a debt collection
agency.[BN]
The Plaintiff is represented by:
Raphael Y. Deutsch, Esq.
STEIN SAKS, PLLC
285 Passaic Street
Hackensack, NJ 07601
Phone: (201) 282-6500
Email: rdeutsch@steinsakslegal.com
UP FINTECH: Willard Securities Suit Tossed Without Leave to Amend
-----------------------------------------------------------------
In the case, VICKI RONGEY WILLARD, individually and on behalf of
all others similarly situated, et al., Plaintiffs v. UP FINTECH
HOLDING LIMITED, TIANHUA WU, JOHN FEI ZENG, YONGGANG LIU, LEI FANG,
DAVID ERIC FRIEDLAND, VINCENT CHUN HUNG CHEUNG, BINSEN TANG, XIN
FAN, JIAN LIU, XIAN WANG, CITIGROUP GLOBAL MARKETS INC., DEUTSCHE
BANK SECURITIES INC., AMTD GLOBAL MARKETS LIMITED, CHINA MERCHANTS
SECURITIES (HK) CO., LIMITED, and TOP CAPITAL PARTNERS LIMITED,
Defendants, Case No. 19-CV-10326 (JMF) (S.D.N.Y.), Judge Jesse M.
Furman of the U.S. District Court for the Southern District of New
York granted the Defendants' motion to dismiss the Plaintiffs'
claims.
The putative class action arises out of an initial public offering
conducted by UP Fintech, an online brokerage firm that operates an
app for Chinese-speaking investors to buy and sell securities. In
particular, Lead Plaintiff Jian Ren brings claims under Sections 11
and 15 of the Securities Act of 1933, 15 U.S.C. Sections 77o, 77k,
against UP Fintech; various officers or directors of UP Fintech
("Individual Defendants"); and a handful of entities that were
involved in underwriting the initial public offering.
According to the Plaintiffs, "at the time of the IPO," which was
"just eight trading days before the end of the first quarter of
2019, the Company had already learned that its trading volume and
commissions for the first quarter of 2019 were sharply declining,"
but failed to disclose these facts in the Registration Statement.
The Defendants that have been served and appeared in the action now
move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, to dismiss the Plaintiffs' claims. They make a
colorable argument that the alleged declines in trading volume and
commissions between January and March 2019 did not last long enough
to qualify as "trends" for the purposes of Item 303. They argue
even more forcefully that the allegations in the Complaint fail to
raise a plausible inference that the Defendants knew of the alleged
trends, as required for an Item 303 violation.
Ultimately, however, Judge Furman need not and does not address
either of these arguments because he concludes that the Plaintiffs'
claims fail for other reasons. In sum, Judge Furman finds that the
Registration Statement disclosed that UP Fintech had seen dramatic
swings in trading volume and commission revenue on a
quarter-to-quarter basis, including a decline in trading volume in
Q2 2018 that matched the decline UP Fintech ultimately suffered in
Q1 2019 and declines in commission revenue in two of the three
prior quarters, including the immediately preceding one.
Additionally, these data were accompanied by fulsome warnings that
figures like trading activity and commission revenue were highly
volatile and subject to factors beyond UP Fintech's control; that
this volatility had been largely masked to date by UP Fintech's
strong growth and there was no guarantee that that would continue;
and that investors could not draw meaningful information through
period-to-period comparisons.
In light of this total mix, a reasonable investor would not have
considered the omitted interim financial information -- assuming
arguendo that it was available and even known to the Defendants --
"material" and, thus, "the omissions are not actionable under
Section 11."
In arguing otherwise, the Plaintiffs contend that the Registration
Statement's warnings about volatility were misleading because the
declines in trading volume and commissions] had already
materialized, and the fact that one of twelve prior quarters didn't
show strong growth is hardly an adequate disclosure that the
current quarter has suffered a substantial trading volume and
commissions decline.
To the extent there was any declining trend in commissions,
however, it appears to have begun during Q4 2018 -- and therefore
was disclosed. Moreover, the Registration Statement's "Recent
Developments" section did disclose total revenue and commission
revenue for the month of January 2019, which would have made clear
to a reasonable investor that the company was on track to show
significant declines for the quarter.
The Plaintiffs respond that the Registration Statement misleadingly
attributed the January 2019 dip to "the generally quieter
investment environment during the Chinese New Year season,"
Registration Statement 7, thereby suggesting that the problem was
isolated. But the Registration Statement merely stated that UP
Fintech's "performance in January 2019 was partially affected by
the generally quieter investment environment during the Chinese New
Year season," and the Plaintiffs do not suggest, let alone show,
that that was untrue.
In short, in light of the dramatic quarter-to-quarter swings in
trading volume and commission revenue the Registration Statement
(accurately) disclosed and its warnings about the volatility of
such metrics, a reasonable investor would not have viewed the
additional six weeks of commissions and eleven weeks of trading
volume data that Plaintiffs cite as substantially altering the
total mix of information. That is, the alleged omissions were not
"material" for purposes of Section 11. It follows that the
Plaintiffs' claims under both Section 11 and Section 15 fail and
must be dismissed.
For the foregoing reasons, Judge Furman granted the Defendants'
motion to dismiss. Neither AMTD nor China Merchants were ever
served with the summons and Complaint, despite the operative
Complaint having been filed on March 24, 2020, and thus they did
not join in the present motion. That said, the claims against them
are presumably subject to dismissal for the reasons set forth.
Accordingly, no later than two weeks from the date of the Opinion
and Order, the Plaintiffs will show cause why the Complaint should
not be dismissed as to AMTD and China Merchants, either for failure
to serve or for the reasons set forth.
The only remaining question is whether the Plaintiffs should be
granted leave to amend, which the Plaintiffs request in passing in
a single sentence at the end of their opposition brief. In light
of his reasoning, the Judge holds that there is nothing to suggest
that, if he were to grant leave to amend, the Plaintiffs would be
able to state a valid claim. Accordingly, he denied the
Plaintiffs' request for leave to amend as futile.
The Clerk of Court is directed to terminate ECF No. 52.
A full-text copy of the Court's March 17, 2021 Opinion & Order is
available at https://tinyurl.com/h8eajkx6 from Leagle.com.
WHOLE FOODS: Aponte Sues Over Abrupt Changing of Workers' Schedule
------------------------------------------------------------------
BRICKZADIA APONTE, on behalf of herself and others similarly
situated, Plaintiff v. WHOLE FOODS MARKET GROUP, INC., and
AMAZON.COM, INC., Defendants, Case No. 1:21-cv-02148 (S.D.N.Y.,
March 11, 2021) is a class action complaint brought against the
Defendant for its alleged violations of the New York City's Fair
Workweek Law.
The Plaintiff was employed by the Defendants as a maintenance
worker at the Whole Foods store on 270 Greenwich Street in
Manhattan between August 2019 and November 2019.
The Plaintiff asserts that the Defendants had a customary practice
of routinely changing her and other workers' schedules with less
than 72 hours' notice and compelling them to accept the change.
Section 20-1251 of the Fair Workweek Law prohibits retail employers
from cancelling any regular shift for a retail employee within 72
hours of the scheduled start of such shift or from requiring a
retail employee to work with fewer than 72 hours' notice, unless
the employee consents in writing.
The Plaintiff seeks an injunctive relief and/or declaratory relief
to correct the Defendants' unfair and unlawful policies and
practices, all applicable compensatory and punitive damages,
litigation costs and reasonable attorneys' fees, pre- and
post-judgment interest, and other legal and equitable relief as the
Court deems necessary, just, and proper.
Whole Foods Market Group, Inc. operates numerous grocery stores in
New York City and is a wholly owned subsidiary of Amazon.com, Inc.
[BN]
The Plaintiff is represented by:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
148 West 24th Street, Eighth Floor
New York, NY 10011
Tel: (212) 465-1188
Fax: (212) 465-1181
*********
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